My Wish List
by: Ryan Scott • September 5, 2016 • no comments
As most of you know, I have a number of pet issues that I push at any given time. If I seem somewhat relentless with some of the issues, it's because it takes about 6-10 years from when I start promoting an issue to when it gets resolved at the appellate courts. Some win, some lose, some win then lose. But none of them get up to the COA without (1) a case with the issue, (2) a defense attorney who is aware of the issue, (3) a defense attorney willing to preserve the issue (not always the same thing), (4) a case that goes to trial, (5) the issue losing at the trial level, (6) the defendant losing at trial, (7) an appellate attorney who raises it well, (8) an appeal that doesn't moot the issue out for some reason and (9) an appellate court that finds it worth writing about.
Depending on the issue, these can be 9 conditions that are very hard to satisfy. So I keep urging them on attorneys who I like and trust, in the hope that sheer force of numbers will allow the issue to get up at least once, fertilize the COA and produce an opinion.
What issues am I pushing now? Here are some of them, in no particular order.
(1) The co-defendant demurrer (applies whenever co-defendants on the same indictment are not charged identically)
(2) Assault I jury instruction: when charged intentionally, a defendant must intend a serious physical injury.
(3) The Attempted Aggravated Murder demurrer (when a defendant is charged with trying and failing to kill two people)
(4) Criminal episodes in the context of child porn, when all the porn is found during the execution of a single search warrant
(5) Criminal episodes in the context of promoting and compelling prostitution
(6) Rape III jury instruction: a defendant must be negligently unaware the child is under 16
(7) Nonunanimous juries: when a minority is one of the "not guilty's"
(8) Merger of DCS-substantial quantities and PCS
(9) Crimes joined for non-evidentiary reasons (i.e., same or similar or "connected together" only require undue prejudice (and not substantial prejudice) under the due process clause.
If you've got any of these issues, let me know, and I'll do everything I can to help you preserve them.
