Discovery? What discovery?

So, after four days of trying to go to trial and getting a plea done, it's off to Independence after being ordered to appear for a scheduled show cause hearing in State v. Lopez. For the past eight months the prosecutor hasn't complied with discovery and its show cause day.

Or is it. The judge is in trial and, incredibly, decides that what would work best is for the defense to tell the Court (again) what discovery is missing! Does anyone else see something strange here? The defense is missing whatever discovery the State has not provided, and the defense doesn't know what that missing discovery is.

Which witness addresses have not been updated? Don't know.
Which witnesses have undisclosed arrests and convictions? Don't know.
What transcripts from co-defendants cases have not been provided? Don't know.

Oh well. Like so many cases in Jackson County, we'll sort it out in a post-conviction hearing . . . .

Trial--Day Four; No witness, so plead guilty?

O.K. A good result, but does this strike anyone else as odd?
Show up on Thursday. The State still doesn't have their witness. So, it would seem in the normal world, the State would have to dismiss.
Ah . . . but it's Jackson County, Missouri. The State would dismiss and refile the same case and, presumably, wait another 2 years and two weeks to find their witness and, if they didn't, just dismiss and refile again. In this insane system, you can be kept in jail forever by the State dismissing and refiling the same case.
In any event, plead to 10 years on voluntary, and client got two pending robbery first degree cases reduced to robbery second and 10 years, concurrent.
Good result, but it seems odd pleading guilty when the State doesn't have their necessary, sole witness.

Brother, Can I get a Trial?

Third day for trial, jury still not sworn, and the prosecutors have lost the witness they found on Monday. Judge recesses the case and jury sent home.
We had entered our appearance on this case about 5 weeks ago and, instead of having our client sit in jail for another year or two, kept the trial setting.
It seems easier to just go to trial than waiting several years for what may or may not be a reasonable plea offer. The offer in this case is 20 years on murder second degree. It's become a sad fact of life in Jackson County that you don't get good offers until trial.
Now, in trial, we still don't have a good offer.
And the State does not have their witness.

Poor Jackson County Jurors.

Murder trial with a Tuesday start. That's usually a good thing since we get to start jury selection right at 9:00 a.m. instead of waiting until the afternoon like on Monday starts. (Strange how jury selection starts Monday morning everywhere but in Jackson County.)
Alas, no early start. Jury panel arrives at 11:15. Jury isn't  picked until 7:00 p.m. That's a long day for $5.00 jury pay.
Prosecutor asks to not swear the jury until Wednesday and has "found" another witness. The witness they couldn't find for two years, two weeks and a day has been continuously working at ReStart since the shooting.

Murder Trial--Does the State need witnesses?

Another murder trial. Shooting during a drug deal gone bad. Client went to ReStart to get some dope, and instead the "dealer" and his partner got into the vehicle and pulled a gun. Client shoots dope dealer's partner.
State has one eyewitness. State has not talked to witness. Ever.
Homeless witness last talked to by police two years and two weeks ago.
On the Monday of trial, State finds their witness, so we'll start jury selection on Tuesday.
Should be interesting since witness does not see the start of the struggle.

Oh No! Not Again!

Another day, another discovery violation.
Ever since Merriweather v State, it's been clear that the prosecutor's duty to disclose convictions of State witnesses is taken seriously by the Supreme Court. After all, only the prosecutors have access to computerized databases such as NCIC and MULES.
Representing a man on a post conviction hearing. There had been an undisclosed deal with a co-defendant (dismissal--pretty good deal!) but the prosecutor had, belatedly, disclosed convictions on four State's witnesses. Since convictions are so rarely disclosed, started looking at the four witnesses on case.net.
Oh No! The first witness had additional convictions, not disclosed.
Oh No.! The second witness had additional convictions, not disclosed.
Oh No.! The third witness had additional convictions, not disclosed.

Oh No.! The fourth witness had additional convictions, not disclosed.
A perfect record! All told, about 10 missing convictions.
Perhaps most alarming is that the prosecutor says that they ran the witnesses and the convictions didn't show up. Pretty good evidence that however the prosecutors are "running" their witnesses is being done correctly.
We'll see what happens now.

A Fish Called Wanda, or Why I Killed the Goldfish

Poor Goldfish. These little critters had survived a house fire, and were just hanging out, hoping for some food, checking out the strange young boys in the house.

But it's Chicago, and the young boys are burglarizing the house. Having watched way to many television shows, the youngsters know that if you're doing a crime, you leave no witnesses.

The first link to the burglary (with the headline "Fish poisoned during burglary") is here. http://triblocal.com/arlington-heights/2011/01/26/fish-poisoned-during-burglary/

Pouring hot sauce, mustard, ketchup and spices into the fish tank did the trick. It initially sounded like the burglars were spicing up the fishes for a little snack, but subsequent investigation showed the real purpose of fouling the fish.

A 16 year old boy claims to have killed the fish because he "didn't want to leave any witnesses." Neadlining with "Goldfish killer 'didn't want to leave witnesses,' police say", the article in the Daily Herald is here. http://www.dailyherald.com/article/20110211/news/702119847/

The Supreme Court giveth . . .

In Skinner v. Switzer, No. 09–9000, the Supreme Court finds that post-conviction requests for DNA evidence can be raised in both habeas corpus proceedings AND under 42 U.S.C. section 1983. It's a Texas case, so maybe the Supreme Court wants to open more avenues for addressing what seems to be a pretty bad criminal system.

In Wall v. Kholi, No. 09–868, the Supreme Court finds that the phrase "collateral review" under 28 U.S.C. section 2244(d)(2) means judicial review of a judgment in a proceeding that isn't part of direct review. In simple terms, it allows review of a Rule 35 motion filed 11 years after defendant's conviction for first-degree sexual assault and finds that such review is not time barred.

In Pepper v. United States, No. 09–6822, the Supreme Court finds that it is appropriate for the district court to consider post-arrest/plea/sentencing rehabilitation. Of course, this was Pepper's fourth appeal of the 8th Circuit's typically extreme treatment of a criminal defendant.

Don't Try to Rob the Weed Man

Client working hard over the holidays, trying to keep up with customers wanting a little weed.

One such customer decided to rob the weed man, telling just about everyone in the world he planned to do a robbery and borrowing a gun.

Client dutifully hands over weed at gun point, isn't as keen on giving up his watch, and in the end shoots and kills the guy.

Charged with murder second degree, ACA, and drug distribution, the prosecutor agrees that the situation is unusual. Client gets 5 years on involuntary manslaughter, 3 on ACA, and 5 on distribution.

Very Good Video

007 appears in a two-minute video to mark International Women’s Day.
The film is aimed at highlighting inequalities experienced by women around the world.
The voiceover to the video is provided by Judie Dench, who plays Bond's controller M in the spy films.
She asks whether 007, as "someone with such a fondness for women", has ever considered "what it might be like to be one".

http://www.telegraph.co.uk/news/newsvideo/celebrity-news-video/8366190/Daniel-Craig-drags-up-in-James-Bond-charity-video.html

Why you should never talk to the police, part 1,234,873

The insanity continues. As KCPD laments their inability to solve murder cases, I experience yet another in the seemingly endless examples of how not to deal with witnesses and the public.

Client and friend are going to house where friend is going to pay back $50 to female friend. All above board: returning some borrowed money. Not for drugs or sex or bribery of public officials.

Client drives friend, who gets out and approaches female. Guys with female start arguing with friend and fight starts. Client is still in car, watching. During fight, gun comes out and one of the guys is shot and killed. Friend gets in car and client drives off.

Client didn't have gun, didn't anticipate any problems, didn't shoot anyone, didn't do anything more illegal than witness a shooting.

So . . . client gets charged with murder first degree! Amazing probable cause statement, tells straight story--no criminal activity, just a witness to a shooting. Now, it's alarming that a detective thinks that's a crime. More bizarre is a prosecutor signing off on probable cause. And a judge signed the complaint. And a grand jury indicted.

$500,000 cash only bond (reduced by Judge Youngs, who probably read the (lack of) probable cause statement. Now, realizing that no crime was committed by client, the prosecutor wants him as a witness.

Instead of dismissing and apologizing for arresting, charging and incarcerating a mere witness, the prosecutor is offering a "deal:" plead to a felony of hindering prosecution, take four years, be a snitch.

We have declined the offer.

And they wonder why the public doesn't want to cooperate . . . .

It took over six years, but Larry gets probation

Larry was charged with murder first degree for a drug deal gone bad. Problem was, he didn't have a gun, didn't plan a robbery, didn't shoot anyone, cooperated with the police, was nearly killed in the Jackson County Jail and sentencing was today in front of Judge Atwell.

After listening to the attorneys, and aware that Larry had spent over six years in the county jail (and almost been killed for cooperating), Judge Atwell gave Larry a twelve year sentence, but probated the sentence. He got 10 years on armed criminal action, but should have that time already done.

So, we were hired to try for a 15 year sentence, and Larry gets probation.

My best guess is that the six years in county cost taxpayers about $125,000 before tacking on the medical bills for the beating in jail--maybe another $300,000. Even with the waste in government, would think that money could have been better spent.

Oh No! Not Again!

O.K. In a most unusual happening, we have a post conviction case where the Jackson County Prosecutor appeared to have actually provided all discovery. Well, everything except what they say they don't have to provide.

We have this ongoing dispute, or actually a few disputes. In this case, the prosecutor cut a deal with a co-defendant. Jackson County Prosecutors think that it is O.K. to cut a deal and not tell anyone until the deal is done: I'll give a witness probation, but it's not a done deal until probation is given, so they claim they don't have to disclose the deal.

Or, the prosecutor sits in on a deposition of a witness taken in a co-defendant's case. So, there is a statement under oath by a state's witness, but the prosecutors think they don't have to disclose that.

ANYWAY, in this post conviction case, other than not disclosing a deal and not providing a deposition of a witness, the assistant prosecutor had apparently done pretty well.

The prosecutor had actually provided a list of witnesses with convictions!!! Now, of course, that is required by Supreme Court Rule, but in Jackson County the prosecutors just ignore that little detail. Even though the Missouri Supreme Court, in Merriweather v. State, said that the failure to provide convictions is a due process violation and automatic reversal, it is still something that Jackson County doesn't do very often.

Anyway, the prosecutor in this case had listed four witnesses with convictions. On a lark, I entered the first witness in casenet (the public website listing Missouri criminal cases). Now, casenet won't show all convictions, won't show closed convictions (like suspended imposition of sentence), but it's pretty good.

First witness . . . casenet shows two convictions not disclosed by the prosecutor.

Second witness . . . casenet shows five convictions not disclosed by the prosecutor.

Third witness . . . casenet show one conviction not disclosed by the prosecutor.

Fourth witness . . . casenet shows two convictions not disclosed by the prosecutor.

Don't know what database the prosecutor is using, but it makes you wonder if they EVER disclose convictions as the Supreme Court requires. Most bizarre is that they had disclosed out of state convictions and convictions from other counties, but had missed convictions from Jackson County.