What's Up in the 8th
There are many entertainment options for today's youth. Five-year-old Ramon Burnett - his friends called him "Dink" - opted to play football after school at his public housing complex one September afternoon in 2015.
Malik Norman chose to drive around with three of his friends, looking for someone to shoot. The found someone met whatever vague criteria the quartet had decided upon for that distinction, and so Norman pulled out his gun, only to have it jam. One of his compatriots was more prepared, pulled out his piece, and squeezed off several shots.
One of them hit Dink. He died at the hospital.
So, what's the life of a 5-year-old worth?
Fourteen years, it turns out. Norman pled out to involuntary manslaughter, with a three-year gun specification, and the judge maxed him out. Last week, in State v. Norman, the 8th District was called upon to determine whether the judge had gone rogue in giving Norman fourteen years in prison.
Judges approach sentencing in different ways. Some say very little: making a reference to the sentencing statutes, reading the findings for consecutive sentences off a card, is sufficient. Some say a lot more, and that can get them in trouble: they might say something sufficiently inappropriate to get them reversed.
But sometimes the judge's expounding on why he fashioned a particular sentence helps gets him affirmed, because it indicates that he put some thought into the sentence, which is pretty much the whole idea. Here, the judge's final words at the hearing were, "There's really no justice for [the victim] here. He's gone. His family will have a hole in their soul to deal with for the rest of their life. I question what kind of soul you have. Good luck." Fourteen years sounds about right. I'm content knowing that I won't have to worry about Norman for most of the rest of my life.
Nor will I have to worry about the defendant in State v. McGowan. When you plead guilty to raping six women and killing one of them, with an agreed sentence of 25 to life on the aggravated murder, you can't really be surprised if the judge adds some time on top of that for, you know, the rapes. McGowan winds up with 40 to life, and the panel finds no reason for a do-over.
Excluding the pro se appeals, there were four criminal cases in the 8th last week. I managed to lose half of them.
My first came in State v. Davenport. Davenport burned down his neighbor's house, with the neighbor in it. When the police arrived, Davenport emerged, shirtless on a Cleveland November morning, and announced that he was the culprit. So loudly, in fact, that the cops had to hustle him into a zone car to escape the wrath of the increasingly angry crowd which had gathered. When the detectives came in to question him, he told them, "Some of you look familiar. I've been in and out of nut houses."
And he had. The psychiatrist hired by the defense wrote a competency evaluation laying out Davenport's decades-long history of mental illness, including five stays in mental hospitals in the fifteen months preceding the crime.
The doctor nonetheless concluded that Davenport was competent, a choice largely dictated by the fact that the bar for competency is cleared if the defendant can distinguish the judge from an eggplant. What about sanity?
The report didn't say. There's nothing in the record to indicate that anyone even thought about that.
That was my argument: that the lawyers were ineffective for failing to investigate an insanity defense. There's actually some good case law on that. To be sure, decisions like that normally fall within the rubric of "strategy and tactics," immunizing them from judicial review, but given that Davenport freely confessed his guilt to anyone who would listen, an NGRI finding was Davenport's only real chance of avoiding conviction.
The majority shrugs that off, at times with somewhat sketchy reasoning: at one point, it decides that the defense lawyers "must have" talked to the doctor about sanity, a conclusion unbuttressed by a shred of evidence in the record to support it. The dissent seems to have a better argument, but then I'd think so, wouldn't I?
There's no dissent in State v. Robertson, but maybe there should have been. Churchill once observed that the there was nothing in life so exhilarating as being shot at without result, a sentiment which cannot be shared by David Talley, because he claims he was shot at by Robertson with result, namely, four bullet holes in his arm and one in his abdomen.
The detective is the second witness for the State, and regales the judge with all the bad stuff that Talley told him about Robertson, none of which had emerged during Talley's time on the stand. The panel decides that this was improper, but finds "no reasonable possibility that the improper testimony contributed to Robertson's convictions."
Some might suggest that the concept of harmless error suffered an even bigger beat-down than I did. Yes, Talley identified Robertson as the person who shot him, but that was after telling the judge at the beginning of trial that he wanted to take the 5th because he didn't know who shot him. And Talley certainly had an axe to grind; the two had developed a grudge against each other while they served time in the same prison. Other than Talley's testimony, there was no evidence linking Robertson to the crime: no eyewitnesses, no forensics, nothing.
The big problem, though, is that this was a bench trial. There's been some good recent law from the 8th that the customary presumption that a judge in a bench trial considers only admissible evidence doesn't apply if the judge overrules objections to admissible evidence, which is what happened here. Still, I think a court of appeals will expect the trial judge to separate the wheat from the chaff, and what the detective said here wasn't sufficiently damning to overcome that expectation.
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Coming attractions: The perils of trying a child rape case, appellate strategy, and more in the Friday Roundup.
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