There's Got To Be a First Time, Doesn't There?

An argument containing the contentions of the appellant with respect to each assignment of error presented for review and the reasons in support of the contentions, with citations to the authorities, statutes, and parts of the record on which appellant relies. The argument may be preceded by a summary.

That's Rule 16(A)(7) of the Ohio Rules of Appellate Procedure, the set of rules governing practice in Ohio's intermediate appellate courts.  Rule 16 is about what briefs must include.  Rule 28 of the Federal Rules of Appellate Procedure, addresses briefs in the federal circuit courts.  Section (a)(9)(A) has the same requirement, mandating that briefs include

appellant’s contentions and the reasons for them, with citations to the authorities and parts of the record on which the appellant relies.

Which makes some sense when you think about what appeals are and how they work. 

Appeals are claims that something went wrong at an earlier stage of the process.  Typically, the claim is that the trial judge screwed up somehow.  She did or didn't make a proper ruling on an objection.  She did or didn't give the jury the right instructions.  She did or didn't suppress evidence or impose a lawful sentence or properly advise the defendant of his rights when taking a plea or . . . . You get the idea.

And the judge screwed up because there was a rule he didn't follow or he followed wrong or a statute he ignored or case law he missed or misunderstood or an argument he should have bought but didn't. Or maybe the judge overlooked a crucial piece of evidence in issuing a ruling or remembered it wrong. Or something.  Because the judge really can't screw up in a vacuum.

In fact, the rules pretty much require that the lawyer complaining on appeal have given the judge enough information to know what the issue was and to avoid screwing it up.  It's that old "if-your-lawyer-screwed-up-you-have-only-yourself-to-blame" thing.

So sure, it makes sense that when we brief an appeal we have to provide citations and authorities on which we're relying.  Because it's all about what the judge got wrong that could and should have been gotten right.

But what happens when there are no authorities to cite?

Kenneth Jowers was sentenced by a federal judge in Tennessee to 46 months in federal custody for knowingly and intentionally possessing four guns even though he was a convicted felon.  The sentence was higher than it might have been because if there are more than three guns the guidelines call for a two level enhancement.  (Don't worry if you don't understand.  It doesn't matter.)  He argued on appeal that he should have gotten less time because two of those guns were really his father's; his father stored them in his bedroom before Jowers became a felon; his father then died, and Jowers never got around to removing those guns.  He didn't deny that he violated the law by possessing them (he entered a guilty plea), just that those two guns should have counted less.

Jowers had a good panel, the kind that in the 6th Circuit often leads to a 2-1 win.  Not this time.  When you have no case you're supposed to lose, and Jowers really had no legal case.  So he lost, which is neither here nor there (except to Jowers, of course).  But the question of how he lost, that's something different.

Here's a bit from the majority opinion by Judge Merritt.

Although the defendant apparently did not explicitly make a “disparity” argument in the district court based on § 3553(a)(6), which requires consideration by the court of the “need to avoid unwarranted sentencing disparities,” his only argument against this sentence on appeal is that the two-level enhancement constitutes an unwarranted sentencing disparity.” He does not explain by reference to case citation or other reference to how, when, or where defendants in a similar situation in other cases received a more favorable sentence omitting the two-level enhancement. He makes no argument that would assist us in differentiating his specific situation from other specific situations, and so his argument based on “disparity” is not well taken.

Note that word so in the last sentence. He might have won, Merritt says, if only he'd had some authority, some case (as lawyers like to say) on point. But it's just him.  Therefore [so], he loses.

Now, that makes perfect sense.  The rules say you're supposed to cite authority, and apparently Jowers didn't.  And it makes particular sense here where his saying that there was something disparate about his sentence.  That is, other folks in similar situations are better treated.  If you're going to make that claim, it helps if you can point to a bunch of them - or at least one.  Apparently he didn't.

But the point remains that Jowers lost because he was skating solo.

Judge Clay agreed that Jowers should lose. (Jowers really did have no legal case, it appears given the standards appellate courts are supposed to apply.) But other than the result, Clay disagreed with everything Merritt wrote.  OK, it's not that much.  From case caption through Merritt's opinion and to the end of Clay's concurrence takes all of four pages. And the Judge's thought so little of the case that they decided it shouldn't be published.

In any event, here's the relevant part of Clay's separate opinion.

I also note my disagreement with the majority opinion’s emphasis on Defendant’s failure to “explain by reference to case citation or other reference to how, when, or where defendants in a similar situation in other cases received a more favorable sentence omitting the two-level enhancement.” Although Defendant did not cite to any cases where a defendant received a downward variance because he only “negligently” possessed firearms in violation of § 922(g), the failure to demonstrate the existence of similarly-situated defendants who were successful in other cases is not a bar to bringing such an argument. Indeed, if that were the case, no defendant could ever raise a new or novel argument in challenging his conviction or sentence.

I've written before, I imagine, about Ernesto Miranda's trial lawyer.  He's the guy who stood up in an Arizona trial court and said that his client's confession should have been suppressed because the cops never told him he had a right to talk to an attorney before answering any questions.  I've always imagined (though it's probably not true) that judge and the prosecutor and the court reporters and the cops and everyone else in the courtroom broke into giggles at that.

You've gotta be kidding.  What've you been smoking?

But, of course, SCOTUS said he was right.  (And sent the case back so that Miranda could get a new trial without the tainted confession - a trial at which he was again convicted, by the way.)

Years ago I obtained a new trial for a defendant on death row when I argued that . . . . It doesn't matter what I argued.  What matters here is that my entire authority on the winning point, the only thing I cited, was the Due Process Clause of the 14th Amendment and an unreported case from a different court of appeals in Ohio that made an altogether different point.

On the Merritt test, Miranda would have lost.  So would my client.

The law is harsh and unforgiving.  And as I said, the rule requiring authority makes some sense.  Most of the time.

But Clay is right. There has to be room to say, 

Never before, but now.

The court's opinion in United States v. Jowers, by the way, is here.

Discretion?

"How can they just lie like that? And how can you let them?" So I was asked about ten years ago by a law librarian who'd spent the better part of her life around the courts and lawyers. She was asking about pleas. How can a factually guilty defendant, she wondered, plead not guilty.

I tried to explain that a not guilty plea wasn't, legally, an assertion of innocence. Rather, it was a refusal to admit guilt, something like a challenge to the state: Prove it.

In fact, and based on my remarkably narrow knowledge of British law, in Scotland, and at least at some time in the past (and maybe still today) in England, one entered a plea of "Not proven" which makes the point clearly and with less seeming dishonesty. [Obama and members of the Judiciary Committee can decide for themselves whether my limited knowledge of international law coupled with my willingness to say that it sometimes makes a whole lot of sense, makes me a prime candidate for the next opening on SCOTUS or disqualifies me completely.]

In this country though, and depending on how you count and exactly where you are, there are three choices:

• Not Guilty
• No Contest
• Guilty

Of course, because it's the law, it isn't that simple.

Take "Not Guilty." It comes in at least two flavors. There's straight "Not Guilty." (That's the "I'm not admitting anything, you have to prove it.") And there's "Not Guilty by Reason of Insanity." That's an admission of factual guilty but a denial of legal guilt. Or something like that; the details of just what it means, how it works in practice (i.e., who has to prove what), and what happens if the jury buys it vary dramatically from jurisdiction to jurisdiction.

Guilty, too, and it's hard to think of what might be simpler, has variety. On the one hand, what could be simpler than the basic admission, "I did it, I'm guilty." But what if you're pleading guilty as part of a plea bargain because you're trying to cut your losses, but you insist you didn't do it?

There's actually a plea for that. It's called an "Alford plea," and was authorized by (and gets its name from) North Carolina v. Alford, a 1970 decision in which the Supreme Court said that the a defendant can plead guilty while insisting that he's innocent. As long as the prosecutor says there's evidence of guilt, and the plea is entered as part of a deal for a lesser penalty to avoid the risk of a greater (death in Alford's case), the Constitution is happy.

Not all States allow Alford pleas; not all judges will accept them; and not all prosecutors will offer a deal if that would be the plea. And if there are sentencing ranges for the judge to pick, it's hard to claim, let alone demonstrate, remorse and rehabilitation while you're denying guilt. Like I say, there are problems.

There are other options, too. In Delaware, for instance, there's something they call a "Robinson plea" which is a plea of guilty while neither admitting nor denying guilt. The plea was first approved in 1972 in Robinson v. Delaware (I can't find a free version, sorry). Robinson thought it in his best interest to enter the plea, but had amnesia and simply didn't know whether he was factually guilty. So, it's "I'm pleading guilty, but don't remember."

All of this is by way of preliminary to what I want to discuss: Plea bargains. They're the ugly stepchild of the criminal justice system. In theory, it works like this.

Since nobody really knows what will happen at a trial, everyone has some risk. From the government's point of view, there's always a chance that the jury will reject even the strongest proof and find the defendant innocent. From the point of view of the defendant, it's just possible that the jury will find guilt. Some risk all around. Maybe it's better to cut everyone's losses.

So the deal is that you plead guilty to less than all the charges or to a lesser charge or in exchange for a promised sentence or a promise that the rest of your family won't be prosecuted, and there's certainty. There's a conviction, but things could have been worse - or better.

There's something distasteful about plea bargains. From the point of view of the government, they let people get away with crimes. That's why prosecutors will, from time to time, run for office on a platform of refusing to plea bargain. Once in office, they have to reneg because, frankly, there's no alternative. There aren't the resources to try every case.

Defendants don't always like them, either. I've spent many hours trying to convince clients to take a deal. I've worked with their families, with other lawyers, with repeat sit downs. We've gone over evidence and risk and . . . . But I want my day in court. I want to tell my story. God wants me to go to trial. I can't admit it. The deal sucks. You name it, I've heard it.

Still, and depending on the jurisdiction, as many as 95% of all criminal cases end in pleas.

There's a third party to the deal, too. While the mechanics vary from place to place, judge generally have to sign off on plea deals. And sometimes, well, judges like to have things their way.

Consider Judge Alfred Mackey of Ashtabula County, Ohio. He had before him the case of James Irish, charged with domestic violence, a fourth degree felony. Mackey set a plea cut off date of April 4, 2008. Either a plea bargain would be entered by that day or the case would go to trial. The state offered a deal, Irish didn't accept it by April 4. Trial would happen May 13.

However, on May 12, the state offered a better deal, a plea to a misdemeanor. The next morning, Mackey tried to take it. The judge said he couldn't. It was too late.

And we discussed this and the fact that if these plea cutoff dates are going to mean anything, we have to hold with what the recommendation was.

Got that? It's the court's rules that matter. The hell with what the parties want.

Irish appealed. The 11th District Court of Appeals affirmed. In State v. Irish, the court said that Irish knew he only had until April 4 to accept a deal.

As noted, the trial court expressed, on the record, its reasoning in refusing to accept the plea bargain. Irish was aware that the trial court imposed an April 4, 2008
deadline for accepting a plea. Certainly, plea bargains should not be discouraged;
however, there is nothing in the record to justify the inability of the state and Irish to
arrive at an agreement by the deadline imposed by the court. It is a well-established
principle that a trial court has wide discretion in control of its docket.

Judge Grendell, in dissent (and again voting for the defendant - this is becoming an alarming trend) says what's obvious. Judge Mackey put his own inflexible rule over his obligation to consider the facts and circumstances. Anyway, you can't blame Irish for not accepting, on April 4, a deal he wasn't offered until May 12. Except, of course, that the court did.

The real problem here isn't that Judge Mackey is inflexible, it's a system that's so deferential to the trial courts that good sense is rendered almost wholly irrelevant. The standard by which a court of appeals reviews a trial court's decision to reject a plea bargain is "abuse of discretion." A judge doesn't abuse her discretion by being wrong - only by being altogether arbitrary and irrational. That's a mighty hurdle.

Grendell actually got it right on that score, too, in this case though. By mindlessly following a rule he created, without considering whether the plea made sense under the circumstances, Judge Mackey was refusing to exercise discretion. And the refusal to exercise discretion is (and cases clearly support this) itself an abuse of discretion.

So Mackey was wrong yet is right because the court of appeals says so. Grendell is right yet is wrong because a majority of her panel disagreed with her.

And Irish has a felony instead of a misdemeanor.

Heinous Crime Rule: Applied

A couple of weeks ago, in this post, I wrote about State v. Foster the 2006 case where the Ohio Supreme Court cut the sensible heart out of the felony sentencing reform law Ohio enacted in 1996. What I said then was that the court knew perfectly well what it was doing in Foster, but was so committed to the outcome that it didn't give a damn. And now it's stuck, and unhappily, with the very problem sentencing reform was designed to correct: unbridled discretion by the trial courts in the imposition of sentences.

(And stuck it chooses to be, I should add. Earlier this week, in State v. Elmore, the court reaffirmed Foster and rejected a number of challenges to it we've been raising since a reconsideration motion filed just days after it was decided.)

But Foster has had negative consequences beyond guaranteeing a return to unbridled discretion - consequences compounded by courts of appeals too timorous or inattentive to fix them when they can. Today, the Lucas County Court of Appeals, in an opinion that refuses to discuss the one serious issue it seems was before it, exemplifies the problem. The case is State v. Boyd, and it's ugly.

Here's what happened.

In 2003, Stephen Boyd was charged with four counts of rape. There were two victims, and

Boyd was convicted by a jury of four counts of rape. The charges grew from events on separate occasions and with different victims. That is, he was charged in Counts 1 and 2 with raping A on one occasion and in counts 3 and 4 with raping B on a different occasion. They were, by all accounts, particularly horrible crimes. The case was tried to a jury which found Boyd guilty of everything. He was sentenced by Judge Skow to 20 years in prison, and here's where the details start to matter.

Each count of rape was a first degree felony permitting a sentence of 3, 4, 5, 6, 7, 8, 9, or 10 years. Skow gave him 10 years for each finding that Boyd committed the worst form of the offense. Then finding that consecutive sentences were necessary to protect the public were not disproportionate to the offenses, he made the sentences for each victim concurrent but consecutive to the sentences for the other victim. That is, the 10 year sentences for counts 1 and 2 were concurrent to each other and were the 1o year sentences for counts 3 and 4. But the 10 year pairs were consecutive to each other, so Boyd got a total of 20 years.

He appealed, of course. The sentence and most of the appeal was done before Foster was decided, but appellate counsel had some sense of what was coming based on what SCOTUS had been doing. So he acknowledged that it wasn't Ohio law but said that there were real problems with maximum and consecutive sentences based on findings made by the trial judge rather than the jury. By the time the appeal was decided, in 2006, the Ohio Supreme Court had ruled on Foster. In light of that, and grudgingly, the court reversed and remanded for resentencing. (Opinion here.)

Back the case went to the trial court. The assumption, and this is what mostly happened in these cases, so the assumption was warranted, was that the judge would simply reimpose the same sentence - this time without an explanation. But there was one difference. Skow was not going to be the judge. While the case was pending on appeal, he'd been elected to and taken his place on the court of appeals. The case was going to his replacement, Stacy Cook.

Boyd had never had retained counsel. He had one lawyer appointed for trial, another for appeal. On remand, he got a third appointed lawyer. (He'll be up to five by the time the story - so far - is over.) And his judge, well, Cook decided she'd do her job right. She'd actually read the record and make an independent assessment of what the sentence should be. Hard to complain about that in theory. It is what she's supposed to do, and it's what few judges in that position actually do unless someone goads them into it.

This time, it was a shame.

She read the record, reviewed the transcript (perhaps consulted with her husband, former prosecutor and now judge Gary Cook, though I don't know that), thought about it, and decided Skow wasn't harsh enough. It was a terrible crime, she said. Each count, she decided, should be run consecutive to each other count. None of this 20 year trivia, she said. Slam the door. 40 years. Before imposing sentence, she told Boyd's lawyer what she was going to do. She gave him time to write a memorandum (sorry, I don't have a copy) explaining why she couldn't do it. She wondered, even as she imposed sentence, whether she had the authority. She decided the court of appeals would tell her. 40 years.

She appointed counsel (we're up to four) for the appeal. When, after numerous extensions, counsel didn't file a brief, the court of appeals removed her from the case and appointed new (fifth) counsel. He filed a brief, raising three assignments of error.

APPELLANT WAS DEPRIVED OF HIS RIGHT TO DUE PROCESS UNDER THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND SECTION 16, ARTICLE 1 OF THE OHIO CONSTITUTION WHEN THE RESENTENCING COURT IMPOSED A HARSHER SENTENCE UPON REMAND.

THE RESENTENCING COURT ACTED OUTSIDE OF ITS AUTHORITY WHEN IT MODIFIED ASPECTS OF APPELLANT'S SENTENCE WHICH WERE NOT SUBJECT TO THE ASSIGNMENTS OF ERROR SET FORTH IN HIS FIRST APPEAL, THEREBY DENYING APPELLANT DUE PROCESS AS PROVIDED BY THE FIFTH AND FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND SECTION 16, ARTICLE 1 OF THE OHIO CONSTITUTION.

THE RESENTENCING COURT COMMITTED AN ABUSE OF DISCRETION BY IMPOSING CONSECUTIVE SENTENCES AGAINST THE APPELLANT.

The first and third were easy.

The harsher sentence issue in the first relied on North Carolina v. Pearce, a 1969 SCOTUS decision saying that increased sentences after successful appeals are presumptively vindictive and, therefore, unconstitutional. The problem is that Pearce has been whittled away to near nothingness and simply doesn't apply in this case. Besides, Cook made enough of a record to show she wasn't punishing him for having the gall to appeal.

The third would be a meaningful issue if Foster hadn't essentially left trial courts with full discretion to impose any sentence within statutory ranges. At least, that's how the 6th District views it. As long as the judge claims to have considered the relevant statutes, and then imposes a sentence within the statuory range, there's no abuse of discretion. Cook did that and more.

But the second assignment is tougher because it's right. I don't know exactly how it was argued, since I don't have access to the brief, but here's the guts of the claim: You remanded because the judge violated the Constitution by the way he went about imposing maximum sentences and in the way he went about making the sentences for Counts 3 and 4 run consecutively to the sentences in Counts 1 and 2. On remand, the judge can impose those same terms but do it the right way, or she can change those terms (which would result in reducing the sentence).

What she can't do is go off on a frolic (oddly, that's sort of a legal term of art) and change other aspects of the sentence. She can't do that because it's beyond the scope of authority given to her in the remand.

That's the argument. It should be a winner. We don't actually know how the court of appeals felt about it, because the court never addressed it. What it said, instead, was that because Pearce didn't apply, the first and second assignments of error were overruled. That's wrong. It's nonsense. If it isn't careless, then it's dishonest. I'd like to think it's careless.

Look, this isn't the first case where a sentence has been increased after a Foster remand. When I started writing this, it was the harshest increase on a Foster remand of which I knew. (I heard about an even worse one while I was writing.) The court should have taken it more seriously, should have really engaged with the issues, should have done it's job and reversed.

But when you're not fully engaged, when you blow off the winning argument and cost the guy 20 years of his life. . . .

Skow may have gotten it wrong. Maybe Boyd should have gotten 40 years from the beginning. Hell, maybe someone should have cut off his balls. But that's not what happened. Our system, if it's going to get the respect it wants, needs to respect itself and the law.

When I was a new lawyer, back in Texas, a wise and terrific attorney named Floyd Holder explained to me the Heinous Crime Rule. "If the crime is sufficiently heinous," Floyd said, "there's no such thing as reversible error." There are exceptions, though few and far between. The appeal from Boyd's resentencing should have been one of them. It didn't even get a carefully done loss. They just blew it off.

There really is no excuse.

Good intentions - Bad Decision

Jonathan Gresham was put on trial twice for having oral sex with E.T., a 14-year-old girl. Generally, the Double Jeopardy Clause would prohibit that. There's a pretty good case for saying that it should have prohibited it this time, though the court of appeals didn't buy it - and it's not particularly clear that Gresham's lawyer made it.

Gresham was a security officer at a public housing complex in Dayton, Ohio. The jury apparently believed the evidence that one evening he arranged to meet with E.T., and they had oral sex. She told her aunt. He got arrested and charged with Unlawful Sexual Conduct with a Minor.

During the trial, Gresham testified in his own behalf. His lawyer asked him if there were complaints about E.T. that were investigated. His answered.

A resident that I don’t recall who the resident was, informed me that she was sexually active in the building and that she was a drug addict and that she was trading sex for drugs.

The prosecutor objected and called for a mistrial. The judge, deeply troubled by the answer, granted the request, sent the jury home, and rescheduled the trial.

Here's the relevant law.

The crime Gresham was charged with makes it an offense to having sex with someone between the ages of 13 and 16 if he knew or should have known the person's age. It doesn't matter who started it, whose idea it was, who seduced whom. You just can't do it. There's apparently no dispute that Gresham knew E.T.'s age. So the only legal question is whether they in fact had oral sex. Whether she was a drug addict who traded sex for drugs all day just doesn't matter. If she gave Gresham a blow job, he broke the law. So the allegation is irrelevant if it's meant to suggest a legal defense.

On the other hand, if she's a drug addict and prostitute, then her testimony might not be worth much. Her story about telling on Gresham because she was deeply troubled by the sex they had wouldn't seem particularly believable. And if she was being investigated, then turning the tables on the authorities and making her a victim might serve her purposes. She would have had a motive to make up the story. That might well make the information relevant not to the charge itself but to her credibility.

On the third hand, there's the rape shield law, a part of the rape statute, and applicable to certain other offenses under an evidence rule, which says that, in trials for those offenses,

Evidence of specific instances of the victim’s sexual activity, opinion evidence of the victim’s sexual activity, and reputation evidence of the victim’s sexual activity shall not be admitted under this section unless it involves evidence of the origin of semen, pregnancy, or disease, or the victim’s past sexual activity with the offender, and only to the extent that the court finds that the evidence is material to a fact at issue in the case and that its inflammatory or prejudicial nature does not outweigh its probative value.

Admitting the allegations about E.T. would violate that statute if Gresham were being tried for one of those offense, but he wasn't. Still, the point, one that has some social value and seems sensible, is that there's something offensive about accusing a victim of bad behavior. The courts frown on that.

Finally, on the fourth hand, there's the hearsay rule. Hearsay is a legal quagmire, but the idea is simple enough. Unless there's some exception that applies (and there are dozens of exceptions), statements made out of court aren't admissible in court in order to prove the substance of the statement. So, for instance, "Fred told me that Joe shot him" won't normally be admitted into evidence at Joe's trial for shooting Fred.

Everyone in this case was deeply upset by the hearsay. Except it wasn't hearsay because Gresham wasn't saying that E.T. was a drug addict and prostitute. He was saying that there had been complaints about E.T. being a drug addict and prostitute. It's a subtle distinction, perhaps, but not even a close call in this case. But nobody - including it seems Gresham's lawyers - noticed it.

The trial judge was horrified by what Gresham had said.

My problem isn’t just the hearsay part of it. My problem is the bell is rung and there’s now accusation [sic] right now flying out there that are completely unfounded, completely uninvestigated, completely inappropriate and inadmissible in this case.

The prosecutor took a hint and asked for a mistrial. The judge agreed, dismissed the jury, and announced that the case would be tried again.

That's where the whole double jeopardy thing kicks in. After all, the state had taken a shot at trying Gresham, then the state asked to stop the trial and start over. Double jeopardy ordinarily prohibits that sort of thing. But it happened. A different judge did the trial this time, and Gresham was convicted.

In his appeal, Gresham argued that the state had no right to try him a second time. The court of appeals disagreed. It said in a correct statement of the law, that there's an exception to double jeopardy protections where the judge orders a mistrial out of "manifest necessity" (which the court is careful to explain is less necessary than actual necessity; think of it as close enough to necessity for goverment work).

In this case, the court said

Gresham’s testimony, however, that he was told by an unnamed resident that E.T. was sexually active and trading sex for drugs was clearly hearsay prohibited by Evid. R. 802, as well as inadmissible character evidence under Evid. R. 404(A)(2).

Except, again, the statement was clearly not hearsay, nor is it prohibited under Evidence Rule 404(A)(2). And, in fact, if it were prohibited by those things, the prohibition might be unconstitutional in violation of Gresham's rights under the Sixth Amendment.

But the court wasn't done.

The trial court, however, found that the taint from the objectionable testimony was so great that a curative instruction would not suffice. Under the circumstances presented in the instant case, we agree.

Got that? The jury was so tainted by the mere fact that the allegation had been made against E.T. that they'd never have been able fairly to judge the evidence and decide whether Gresham actually got that blow job from her.

Rape shield laws - and, again, despite the best efforts of everyone involved to make it apply, neither the rape shield law nor the expansi0n of it in Evidence Rule 404(A)(2) is actually implicated here - were adopted out of noble purposes. A victim of sexual assault shouldn't have to be victimized again in court by having her character trashed by the guy who assaulted her.
The downside of those laws is that they assume that the person claiming to have been assaulted actually was. And they interfere greatly with the ability, the constitutional right, of the accused to demonstrate that the accuser has no credibility. Good intentions make bad law.

This is even worse, since the law doesn't apply.

And then there's the fact that the same allegations came in during the second trial and the jury somehow found Gresham guilty anyway. Doesn't matter, the court of appeals says. It was still manifestly necessary to stop the first trial because of the allegation.

[T]hat fact, standing alone, is irrelevant to our review of the first judge’s decision to grant a mistrial in light of the highly inflammatory and prejudicial hearsay testimony offered by Gresham.

Let's review.

It was OK to try Gresham twice because the court had no real alternative. The hearsay and rape shield violation (which violated neither the hearsay rule nor the rape shield laws) was so irrelevant and prejudicial that no jury could have convicted Gresham once they heard it. And it's wholly irrelevant to that decision that Gresham was convicted by a jury that heard it. And because the only way to give the state a fair trial was to stomp on the defendant's protection against double jeopardy, they did that.

I don't know what did or did not happen that night. And I'm not particularly concerned with whether Gresham should have been prosecuted for what E.T. said happened. But the guy got shafted by the courts. That happens too much in sex offense cases - especially when the purported victim is a kid and everyone assumes the guy must be guilty.

CASE NOTES

Cases from hither and yon.

A new post by Sumter Camp on the Sixth Circuit Blog pointed me to US v. Blue, a sentencing appeal where Blue argued that the District Court should have given her a downward departure in Guideline calculation under 5K1.1 for substantial cooperation.

The problem, of course, is that even post-Booker, 5K1.1 departures must be requested by the government. On the other hand, the defendant can ask for a downward variance under 3553(a).

Blue's problem is that she never -- either in the district court or on appeal -- argued that the court could consider her assistance to the government as the basis for a downward variance under § 3553(a) as relevant to what sentence was sufficient, but not greater than necessary. As a result, she ended up waiving the argument and wasting her time on appeal.

As Camp notes, the lesson for all of us is that requested departures and variances should be made under both the Guidelines and 3553(a). They're related but separate means of getting reductions, but what the Guidelines may not allow (such as a defense request for a substantial assistance reduction) 3553(a) will.

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Ken Lammers at CrimLaw has this post on Whitehead v. Commonwealth from the Virginia Supreme Court earlier this month.

Whitehead was convicted of receiving stolen property. But the evidence didn't actually support that offense under Virginia law. Now, in the state's high court, and for the first time, the state argued that the conviction should be affirmed because Whitehead constructively possessed the property. You'd think that might fly, that Virginia, like Ohio, would say that a court that got the right result will be affirmed even if the court had the wrong reason. And according to Lammers that had been the law in Virginia though the Whitehead court pretty much denies that. In any event, it's the law no longer.

However, whether Whitehead received the stolen property here by constructively possessing it is not properly before us, because the Commonwealth makes this argument for the first time on appeal. It is true that “[w]e do not hesitate, in a proper case, where the correct conclusion has been reached but the wrong reason given, to sustain the result and assign the right ground.” Eason v. Eason, 204 Va. 347, 352, 131 S.E.2d 280, 283 (1963). However, cases in which the party seeking affirmance failed to present the argument in the trial court, such that the trial court did not have an opportunity to rule on the argument, are not “proper cases” for the application of the doctrine. Id. This principle applies in criminal as well as civil cases. Brown v. Commonwealth, 270 Va. 414, 421 n.2, 620 S.E.2d 760, 764 n.2 (2005). Here, the Commonwealth did not argue constructive possession in the trial court or before the Court of Appeals. Consequently, we will not consider the Commonwealth’s constructive possession argument here.

Since we're appellants far more often than appellees, the change in law can only be good for us.

Oh, wait, that's only in Virginia.

Those of us in Ohio just dream on.

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In Paris, Texas, 18 year old Aaron Hart was caught fondling a 6 year old boy. He entered guilty pleas to five offenses and, after a sentencing trial (it's Texas; it's how they do things) at which the jury asked the judge several times about alternatives to prison but apparently got no help, he was sentenced to 100 years in prison. 100 years.

Did I mention that his attorney never did much?

The Dallas Morning News, in this report on the case, says that David Pearson, Hart's appellate counsel,

blames Hart's trial attorney, who had the burden of explaining Hart's disability to the judge and jury. That attorney, appointed by the court because Hart's family couldn't afford counsel, did not ask for special accommodations, such as a liaison who could help the defendant understand what was happening in court. Nor did he try to call witnesses who could testify to Hart's mental condition, Pearson said.

And he didn't get a second opinion after a court-appointed doctor found Hart competent to stand trial. That meant Hart no longer qualified for prison diversion options, like group homes and institutional settings for disabled offenders.

At least they didn't sentence him to die. It is Texas, after all.