Public Defense

If only I had a public defender - Appellate Court ARO 1/9/08

By Gideon

Four decisions from the appellate court today and all four on crim law. Two good, two pretty bad.

In State v. Gupta, the defendant claimed that the trial court incorrectly joined charges involving three separate defendants for trial. Gupta was a pulmonologist who was charged with inappropriately touching the breasts of two patients and going much further with a medical assistant who worked for him. He also claimed that the trial court incorrectly precluded admission of medical treatises and videos that would have established that his alleged “fondling” of the two patients was actually accepted medical procedure. The Court reversed, agreeing with the defendant on both claims. It held that the charges against the third victim were presented first and the jury couldn’t possibly separate the more serious charges from the relatively minor groping and that the treatises and videos were relevant and would have assisted the jury and weren’t cumulative. There is a concurrence in which Judge Flynn agrees with the second claim but not the first. Expect a pet. cert, a grant and a reversal. I mean..umm….yeah…

Then there’s State v. McSwain, which is just really mean. The defendant here claimed that the trial court improperly precluded admission of evidence that would have gone to support her theory of self-defense and violated her right to have counsel of choice for her sentencing. The Court rejected both claims, but not before it set up a habeas (shhhh!). The defendant got into a chickfight (that’s a legal term) in Marina village and ended up cutting the victim with a razor blade. She introduced evidence of bad blood between the two and then wanted to introduce evidence that she had been raped previously in circumstances that were eerily similar to her fight in this case. Unfortunately, trial counsel had one of those moments where he/she couldn’t express themselves in a way that a 5 year old would understand, so when the objection of relevance was put forward, all he/she could say was “It’s relevant” and eventually, “it goes to intent”. That’s about it. Despite that, the trial court disallowed it provisionally and when the door later opened, counsel walked right past it. So no go. The second claim was also rejected because the court opined that it was better raised via a writ of habeas corpus because it would require development of facts outside the record before it. During the sentencing proceeding, the defendant uttered the following, which warms the cockles of my heart and makes its ways into the title of this post:

I also feel that I think it would be better for me to continue with a public defender. I think that things might happen differently if I were to have a public defender from the beginning.

Take that, Judge Hoffman.

Next we have State v. Smith, in which the defendant challenged seizure as a result of an illegal warrantless search, the suggestive show-up, the admission of a witnesses prior inconsistent statement under Whelan and his enhanced sentence for being a persistent dangerous felony offender in light of State v. Bell. One guess as to the outcome. Affirmed except for the last claim. If you really want to know why, wait till New Case News summarizes it.

Finally, we have State v. Ayuso, which is interesting only because the defendant sought to have a witness testify. The witness invoked the 5th and then the defendant tried to get the court to order the State to grant him immunity. Didn’t work at trial, didn’t work on appeal. The defendant was charged with trying to shoot and kill undercover cops who were attempting to buy drugs from him. He was acquitted of the attempted murder, but convicted of assault. This witness he wanted to have testify appears to be some other drug dealer with whom the defendant had a beef and who had threatened the defendant. He was incarcerated at the time of trial. The defense wanted him to testify about some argument he had with him and their interaction - nothing to do with the shooting. The court first made one of those Jon Stewart faces where he gets confused and then said, well, he can invoke the 5th. The appellate court agreed.

That’s all folks! And I did all of that from memory!

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Full post as published by A Public Defender on January 09, 2008 (boomark / email).