What's Up in the 8th
In State v. Stewart, the attorney files a motion to withdraw, stating that Stewart did not agree with him about how to proceed with the case, and would not listen to his recommendations. That ever happened to you?
This week, I mean.
The disenchantment between counsel and client was mutual. The attorney made two motions to withdraw, and Stewart made several more to fire him. But the panel informs us that while a defendant has a right to counsel, he "does not have the right to counsel with whom he has a rapport or with whom he can develop a meaningful lawyer-client relationship."
Several years ago I did a post about a murder defendant who was on his fourth lawyer because he'd stabbed the previous three in the head with a pencil, summarized hilariously by the headline in Legal Blogwatch, "Fourth Lawyer Not Yet Stabbed With Pencil in Trial of Man Who Stabbed Three Lawyers With a Pencil." (Fake news alert: the third lawyer was actually stabbed with a pen.) Stewart is unwilling to go the extra mile to get a new attorney, and so the court affirms.
I've got mixed feelings about this one. On the one hand, defendants often seek to put off the day of judgment, and going through several attorneys is a good way of doing that. Stewart may very well have fallen into that category; when the judge explained his duties to register as a sex offender, Stewart professed himself incapable of understanding. The judge referred him for a competency exam, with the doctor ultimately opining -- wait for it -- that Stewart was malingering.
Still, this was a case where it's fairly obvious that there was a total breakdown in communication between the lawyer and client, and that's usually recognized as grounds for withdrawal. Here, the desire to clean up the docket and open up a space in the jail counted for more than the lawyer's inability to truly represent his client, and I'm uncomfortable with that result.
The defendant in State v. Campbell is uncomfortable with his sentencing hearing: the mother and close friend of the man he killed gave a glowing account of the victim and a description of the events leading up to his death which Campbell found objectionable. He sought to withdraw his plea so he could tell his side of the story, but the judge explained he could do that without withdrawing the plea. Why Campbell thought his explanation would change anything is a mystery: he'd agreed to a sentence of 25 years.
The court finds that Campbell withdrew his motion to withdraw his plea, but goes on to explain that it wouldn't have mattered anyway, given the standards for withdrawal. True that. Despite the blather about "pre-sentence motions to withdraw a plea should be freely and liberally granted," "freely and liberally" translates to "just about never."
While I've observed that criminal appellate work is not for those with self-esteem issues, one sure way of improving your winning percentage is to appeal municipal court cases; in the last ten such cases, the 8th has come down on the side of the defendant seven times. That comes to an end in Cleveland v. Kalish.
Kalish was stopped for a marked lanes violation and ultimately charged with OVI, but the judge tossed the results of the field sobriety tests, finding that the police lacked a reasonable suspicion sufficient to administer them. This calls for the application of the eleven-factor test first enunciated in State v. Evans.
Courts love tests like this, but their usefulness is limited. The factors aren't exhaustive, it's not clear how they're weighed -- does the time of day have as much importance as the odor of alcohol? -- and there's no indication of what you're supposed to do if you find four factors present and seven absent. Several factors appear to cut in Kalish's favor: the opinion notes that he immediately pulled over to the curb, and had no difficulty extracting his license and registration, or in walking to the police cruiser.
I've found that there is one factor of the Evans test that courts do focus on more heavily: whether there is evidence of erratic driving. After all, the law prohibits driving while impaired, it doesn't prohibit driving after having had a few drinks. A lack of evidence that you were driving was impaired will go a long way toward showing that the cops didn't have a reasonable suspicion that you were.
But that's what hangs Kalish: the court notes that the dashcam videos show his lane violations were more than de minimis, and reverses.
State v. Curry presents another case on pre-indictment delay. Curry and an accomplice robbed four people at gunpoint, then took the two women outside and raped them. His argument that he suffered actual prejudice essentially boils down to a claim of faded memory and the absence of the police officers who originally responded to the call. That's not going to cut it; while you don't have to show exactly what a missing (preferably dead) witness would have said, you've got to show more than just that they're no longer available. But as proof of the observation that you can win a case in the arraignment room, for his convictions of four counts of aggravated robbery, two of rape, and two of kidnapping, all with three-year firearm specifications, Curry winds up with a nine-year sentence, the absolute minimum he could've gotten.
Speaking of sentencing, the defendant in State v. Taylor pleads out to a charge of weapons under disability, then appeals the two-year sentence on the grounds that the record doesn't support it. The panel never really addresses that, finding that the sentence isn't contrary to law (no one claimed it was), and that judge properly considered the principles and purposes of sentencing, and the seriousness and recidivism factors, because after all, the judge said he did.
But if the panel had addressed the actual claim, what's the result? How are you ever going to "clearly and convincingly" show that a mid-range sentence for having a gun you're not allowed to have is unsupported?
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