What's Up in the 8th
You remember the theory that, given an infinite amount of
time, an infinite amount of monkeys with typewriters could produce the works of
Shakespeare? Something similar seems to
provide the latest guidance in deciphering the current state of the law on
consecutive sentencing: if a judge talks
long enough at the sentencing hearing, he's likely to say something that the
appellate panel will construe as the findings necessary to support the
imposition of consecutive sentences.
The chief exhibit in support of that contention is State
v. Barker. The march of
technology: Barker's commission of
assault and abduction was recorded by a spectator and uploaded to YouTube, and
is presented by the State at Barker's sentencing. The judge even invites Barker to watch the
video, and provide commentary. Barker's
career as a play-by-play analyst is interrupted by the 4 ½ year sentence he
gets. He complains that the judge didn't
make the required findings, but the panel quotes at length from the judge's
statements at sentencing, puts them in a blender, and the statutory findings
come out. For example, we have the judge
saying this:
So, therefore, I believe that the
only appropriate sentence to punish this defendant is with a consecutive period
of incarceration. * * * [H]e has prior cases, has a record of drug abuse, had
prior opportunities to clean up his act and he has not done so. These are
separate incidents.
The court decides that this, properly pureed, equates this
to
[Finding: "consecutive sentences are not disproportionate
to the seriousness of the offender's conduct and to the danger the offender
poses to the public."]
The judge in State
v. Quarterman isn't quite so voluble, so that one goes back for
resentencing. But not for retrial;
Quarterman's conviction of aggravated robbery is affirmed. An interesting point here. Two people committed the robbery, one of whom
had a gun. One victim identified
Quarterman as the gunman, but the other claimed the other person (who never was
caught) had the gun. The court rejects
the sufficiency and manifest weight arguments, noting that the complicity
statute means Quarterman could be convicted even if he weren't the gunman. That's true, and would be a logical reply to
the contention that Quarterman couldn't be convicted of aggravated robbery
because he wasn't the gunman. But the
argument is that if the two victims have Quarterman doing two different things,
then maybe they didn't get a good look at anybody, and there isn't sufficient
evidence that Quarterman was even there.
That's probably not enough for a sufficiency or manifest weight
argument, either, but it's a difference that should've been recognized.
A much more troublesome decision is State
v. Mays. Mays waived his right
to indictment, and later pled no contest to an information for domestic
violence. There are certain things that
have to happen for a waiver of right to indictment to be valid, though: the judge has to advise the defendant of the
nature of the charge in the information, his right to indictment, and his
constitutional rights. None of those
things happened here. But the panel
rejects the claim that this failure rendered the plea invalid, holding that a
no contest plea waives the right to object to any prior ruling, and by pleading
no contest, Mays waived the issue.
The panel cites a number of cases for this proposition, but
all of them involved guilty
pleas. That's an important
distinction. It's a common practice, for
example, for defendants to plead no contest and then appeal a legal ruling,
like the denial of a motion to suppress; the courts have never held that a no
contest plea waived the right to do that.
In fact, the alternative would be to require the defendant to undergo an
often unnecessary trial in order to preserve the issue the legality of the
seizure of the drugs, which, in the vast majority of drug cases, is the only
real issue. Let's hope this gets cleared
up on reconsideration.
Back in 1989, Tom Keenan and Joe D'Ambrosio were convicted
and sentenced to death of Anthony Klamm.
Keenan's conviction was reversed for prosecutorial misconduct, which
would prove to be a recurring theme, but his second roll of the dice came up
snake-eyes again: another conviction,
another death sentence.
D'Ambrosio won a retrial a couple years ago when the Federal
courts found that the prosecutor's office had committed a series of egregious Brady violations, and his case was
eventually dismissed because the State failed to retry him in time. Keenan piggy-backed on the record that
D'Ambrosio had established, and a Federal court granted him the same
relief. The State didn't muck things up
this time, and Keenan was ready for his third crack at a jury. He'd filed a motion to dismiss the
indictment, but the judge delayed a ruling to allow the parties to come up with
a plea bargain everybody could live with.
("Live with" is the operative phrase:
the State had by this time pulled the death specs.) Keenan opted to go trial instead, and it was
the right call: the judge dismissed the
indictment with prejudice.
By a 2-1 vote, the 8th affirms that in State
v. Keenan. If you've got a case like
this, Keenan is a must-read, and it's
worth your time even if you don't. The
big issue is whether dismissal was the appropriate sanction under the Supreme
Court's decision earlier this year in State
v. Darmond, where the court reversed the 8th and held that the rule of Lakewood v. Papadelis -- that a court
should generally impose the least severe sanction for a discovery violation --
applied equally to violations by the prosecution. (This
post, about the oral argument, takes you through the issues.) The opinion gives a thorough treatment of the
issue. And there's some validity to the
arguments of the dissent.
I didn't really get into that, though. I think this is one of those times when we
get caught up in the law and lose sight of the larger view. And the larger view is this: Tom Keenan and Joe D'Ambrosio spent more than
two decades of their lives in prison for a crime which they may very well not
be guilty of, and we'll never know because of the egregious conduct of the
prosecution. (There's a good discussion
of the facts of the case here.) This wasn't inadvertent, this wasn't an
isolated instance. This was willful
suppression of exculpatory evidence by a chief assistant county prosecutor who
had at least six other murder convictions reversed because of prosecutorial
misconduct.
Sometimes, you've got to send a message.
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