Scariest Decision of the Day (and that's saying something!)
by: Ryan • March 26, 2014 • no comments
There were a lot of really horrible decisions from the Court of Appeals today. But by far the scariest was this one: State v Licari.
You think I'm exaggerating? Take a look. It's an opinion that could only have been written by someone who has never done criminal defense, much less court-appointed criminal defense. You know my reputation: some people think I'm too hard on defense attorneys. Not in this case. I totally sympathize with the trial attorney. But tell me, if the inevitable consequence of this decision is that defendant obtains post-conviction relief, is there anyone who has done court-appointed criminal defense work who -- by this standard -- hasn't been ineffective at one point or another?
And oh-my-god, this was just one of many. In another terrible opinion, the COA held that denial of the severance motion was okay, since the defendant wasn't prejudiced. But the charges were improperly joined in the first place (DCS-mj charges and DV charges), and the joinder statute itself is explicit that prejudice is only relevant if the counts are properly joined in the first place. Now, it's not clear if the appellate attorney pointed that out -- there's a weirdly ambiguous footnote on that score -- but even it shouldn't matter. The court shouldn't conduct an improper joinder analysis -- that it must have known joinder was improper if it read the statute -- regardless. If a defense attorney argued the police only need reasonable suspicion for an arrest, you wouldn't expect the COA to accept that analysis with no more scrutiny than an ambivalent footnote.
There was a juvenile decision which, reading between the lines, suggests that if the trier-of-fact is faced with competing inferences, the mere existence of a permissible inference means that such an inference can be found beyond a reasonable doubt. I say "between the lines" because the phrase "beyond a reasonable doubt" didn't seem to show up in the opinion.
I'm going to stop now before I throw myself off a bridge.
