What's Up in the 8th
State v. Rubin presents the unusual situation of a child pornography case going to trial. Rubin claims that he didn't know he was downloading child porn, an issue he presses on appeal. The panel finds the contention "mystifying" in light of the fact that he used search terms common to child porn - "PTHC" for pre-teen hard core - in the peer-to-peer network commonly used for such purposes. His saving some of the files on an external hard drive and another storage device didn't help.
He also argues that the ten-year sentence he got was excessive. Whatever sentence for child porn a panel might find outrageous, ten years ain't it. Considering that his decision to go to trial meant the judge and jury had to look at that stuff, the judge showed admirable restraint.
In State v. Lester, the State's expert testifies that the gun Lester used was operable, critical to proving the firearm spec. Except she didn't do the testing; somebody else did, and she just testified to what that person told her.
That seems to run afoul of the Supreme Court decisions in Melendez-Diaz v. Massachusetts and Bullcoming v. New Mexico, both of which held that the person who actually performed scientific tests - drugs in Melendez-Diaz, blood/alcohol in Bullcoming - had to testify. The panel decides to rely on another Supreme Court decision, Williams v. Illinois, which held that "out-of-court statements that are related by the expert solely for the purpose of explaining the assumptions on which that opinion rests are not offered for their truth and thus fall outside the scope of the Confrontation Clause."
Now, that sounds like nonsense: obviously, the out-of-court statement of the person who conducted the operability test in Lester was offered for its truth. Otherwise, there would be no reason for it.
To be sure, the language is from a US Supreme Court opinion, but that opinion garnered only the support of four justices. Thomas, who concurred in judgement, agreed with the four dissenters that the "not asserted for the truth" claim was nonsense.
Then there's the matter of the obvious factual distinctions. In Williams, an expert testified that Williams' DNA matched that found on vaginal swabs taken from the victim. The swabs, however, had been sent to Cellmark, an out-of-state laboratory, which provided the DNA profile that was later used to identify Williams. No one at Cellmark ever testified at trial.
That required the Court to get into the rationale behind the Court's 2006 decision in Crawford v. Washington, which expanded the Confrontation right to require exclusion of testimonial statements - broadly, statements to government agents - which are given for purposes of use in a criminal prosecution. It decided that, at the time Cellmark developed a profile from the material submitted to them, there was no prosecution of Williams. Nobody even knew who he was until a match showed up.
Now, there are grounds for debate about the Williams decision on that score, but the point is that it's a far cry from what happened here: there's no question that Lester was a "suspect" at the time of the testing of the firearm, and the test was done for the sole purpose of use in a criminal prosecution.
The problem I have with Lester is that we now have a pronouncement from the 8th District that the guy who did the operability test doesn't have to show up. How about the ballistics expert? Ballistics' testimony is fraught with problems of accuracy; do you mean that cross-examination of that testimony is sufficient if the only response the witness can give is, "Well, that's what it says here." How about the DNA expert?
The court does good work in State v. Anderson. Anderson's attack on his girlfriend left her comatose. He pled guilty to attempted murder in 1996. The girlfriend died in 1998. Nineteen years later, the State indicted Anderson for murder.
That's an easy one. Under the Supreme Court's decision in State v. Carpenter, the State couldn't charge Anderson with murder unless it had explicitly reserved the right to do so at Anderson's plea hearing on the attempted murder charge. It didn't do so.
What put it in the not-easy column was the procedural posture: Anderson wasn't appealing after a plea or verdict, he was appealing from the denial of his motion to dismiss.
Interlocutory appeals in criminal cases has undergone a significant expansion in the past decade. It used to be that if the judge denied you your right to retained counsel of your choice, you couldn't appeal that until after the trial. That got overturned in State v. Chambliss. Ditto for double jeopardy motions; the Supreme Court said an interlocutory appeal was permissible in State v. Anderson. (Same name, different guy.)
The 8th's decision in Anderson follows on that logic: it analyzes the prior decisions, and correctly concludes that if the defendant shouldn't be tried in the first place, he shouldn't have to wait until after a trial to appeal.
In Cleveland v. Glaros, the cops stop a guy name Bowden, and find he's driving without a license. The car's owned by Glaros, so she gets charged with wrongful entrustment. That requires the City to prove four elements: (1) that Glaros was the owner of the car, (2) the she permitted Bowden to drive it, (3) when she knew or had reasonable cause to believe (4) that Bowden didn't have a license. The city does prove (1) and (4), but doesn't even muster an effort to prove (2) and (3). The judge convicts Glaros anyway, in a bench trial, but the panel finds the evidence insufficient, reverses, and discharges Glaros. The main contribution of the case is to provide further confirmation that the best way for a criminal appellate lawyer to boost his self-esteem is to handle municipal court appeals.
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