For Arkansas Attorneys: New Appeal Rules

The Arkansas Supreme Court released new rules for Appellate Briefs.  Make sure you comply.  Among the changes, the rules allow for an increase in pages allowed (30) and font size is now 14.

Read the new rules in their entirety by clicking here.

REVERSED AND DISMISSED! I won an appeal for my client today.

The appeal was based on the trial court’s failure to exclude an alleged accomplice’s testimony from consideration when making its ruling.  Ark. Code. Ann. 16-89-111(e)(1)(a) states that before a conviction can be had on the testimony of an accomplice, there must be corroborating evidence tending to connect the defendant with the commission of the crime.

The Arkansas Appeal court agreed that there was scant or no evidence connecting my client to the commission of the crime.

You can read the opinion here.

The case was tried at the level by Bill Lewellen and myself.

The local paper, The Evening Times, reported on the story here.

New Development in WM3 case — Terry Hobbs saw them last

The defense team for Damien Echols issued a press release today claiming  there are new eyewitnesses.

ArkansasMatters.com reports the West Memphis 3 story here.

An excerpt of the release is as follows:

Three eyewitnesses have come forward and provided sworn statements that they saw Steven Branch, Christopher Byers and Michael Moore with Terry Hobbs, the stepfather of Steven Branch, at 6:30 p.m. on Wednesday, May 5, 1993, immediately before the time the boys disappeared. Hobbs was calling loudly at the children and ordering them to return to his house. The new evidence establishes that the last person who had custody of the three boys before they vanished and died was Terry Hobbs. Jamie Clark Ballard, who lived only three doors down from Terry and Pam Hobbs, has supplied a sworn affidavit, as have both her mother and her sister.

Arkansas ban in texting while driving may send mixed message

In a story by the Associated Press:

Fiddling with your iPhone behind the wheel can get you fined across much of the nation. But many states are more than happy to tweet you with up-to-the-minute directions on how to steer clear of a traffic jam.

It is a mixed signal that some safety experts and politicians say could be dangerous.

I am not surprised that the State of Arkansas found a way to reconcile the two.  “Please check from home,” they say.   It is undisputed that twitter targets mobile users so this position seems disingenuous or ignorant.

Secondly, where do law enforcement draw the line?  Is it illegal to look at the time on your cell phone? Is it illegal to hit one key to see the time?  How many buttons do you have to hit before it becomes a misdemeanor? How does an officer know whether you are looking at the time or texting?

This law seems like a nightmare to enforce but a dream come true for officers looking for probable cause to look for something else.

Supreme Court weighs Arkansas lethal injection rules

By: Associated Press – Texarkana Gazette -

Published: 10/09/2009

LITTLE ROCK—The Arkansas Supreme Court listened Thursday as lawyers argued whether a new law fulfills its aim by clarifying the state’s lethal injection procedures or puts death-row inmates at greater risk of suffering unconstitutional harm.

A federal public defender for death-row inmate Frank Williams Jr. claimed the new law puts additional mental stress on all condemned inmates, and public defender Josh Lee claimed it strips away regulations that required the state prison system to use a three-drug cocktail approved by the U.S. Supreme Court.

“Under the new statute, we have no way of knowing what procedure will be used,” Lee said. Without that oversight, he said the risk of botched executions grows. He mentioned a recent Ohio case where an inmate undergoing a failed lethal injection wept as executioners stuck him with needles as many as 18 times.

Nevertheless, the justices’ questioning appeared to give the state an edge.

Justin Allen, the state’s chief deputy attorney general, said there would be no repeat of the Ohio case in Arkansas. Allen said the new law passed by the Legislature this year made public the amount and kind of drugs used by executioners and that the state’s prison director couldn’t use “rat poison” or anything else to execute prisoners, as he would be subject immediately to a federal lawsuit.

“As a practical matter, Larry Norris or any other prison director would be out of his mind not to follow” the law, Allen said.

Justice Robert L. Brown said he agreed with Allen’s point, one of the few moments that indicated what the justices thought.

The justices gave no indication of when they might rule.

Federal public defenders representing Williams filed the lawsuit in 2008, as their client faced a scheduled execution. They argued the state prison system had altered its execution protocols without following a requirement that state agencies offer notifications and hold public hearings when they change administrative rules.

A lower court judge issued an injunction halting Williams’ execution and the case quickly made its way to the state’s highest court. While there, lawmakers passed a law freeing the state prison system from following the public notification and hearing rule when it came to execution

Arkansas Supreme Court reinstates felony conviction of former prosecutor

By John Lyon
Arkansas News Bureau

LITTLE ROCK — The state Supreme Court today reinstated the felony manslaughter convictions of a former prosecutor who killed an elderly couple in a head-on car crash in Perry County.

The state’s highest court overturned an Arkansas Court of Appeals ruling that threw out Vance Benton Rollins Jr.’s two felony manslaughter convictions in connection with a March 22, 2006, accident that killed Lawrence Humphries, 76, and his 69-year-old wife, Nina.

Rollins, a former Ouachita County deputy prosecutor and Camden city attorney, was sentenced to eight years in prison for the crash, but in February the Court of Appeals modified his conviction from two felony counts of manslaughter to two misdemeanor counts of negligent homicide and reduced his sentence to one year in jail.

The appeals court said prosecutors never proved their assertion that Rollins was impaired by drugs at the time of the crash, only that he was driving badly.

The state appealed, and in a 6-1 decision Thursday the Supreme Court reversed the appeals court and reinstated Rollins’ felony convictions and eight-year prison term.

In the majority opinion written by Justice Elana Cunningham Wills, the court said according to evidence presented at Rollins’ trial, hydrocodone and acetaminophen pills and pipes that tested positive for cocaine residue were found in Rollins’ vehicle after the crash. Also, blood tests detected small amounts of Zoloft and cocaine in Rollins’ system.

A forensic toxicologist testified at the trial that she could not be certain Rollins was impaired. Asked how long the drugs would have to be in a person’s system before blood tests could no longer detect them, the toxicologist said it would take over eight hours.

The jury could infer from the testimony that Rollins had taken drugs within eight hours of getting behind the wheel, the Supreme Court said. That inference, combined with witnesses’ statements that Rollins was driving erratically before the crash, could support a finding that Rollins recklessly caused the Humphries’ deaths, the court said.

“While no evidence was presented of Rollins’ level of impairment or intoxication from ingesting cocaine, we note that such evidence is not necessary to sustain a conviction for reckless manslaughter,” Wills wrote in the majority opinion. “Rather, the state needed only to prove that Rollins recklessly caused the death of another person.”

Chief Justice Jim Hannah wrote in a dissenting opinion that he believed the Court of Appeals’ ruling should be upheld.

Because the state did not establish that Rollins was intoxicated, the issue of driving under the influence was “a closed question,” and all that remained of the state’s case was evidence of bad driving, which falls under the legal definition of negligence, Hannah said in his dissent.

“The majority rewrites the statute and judicially creates criminal liability for manslaughter contrary to the elements of the crime set out in the statutes enacted by the General Assembly,” Hannah wrote.

North Carolina Judge’s Decision to Set Aside Guilty Verdict Upheld By Appeals Court

In November 2007, a Guilford County jury found Mary Elizabeth Roach guilty of felony child abuse inflicting serious bodily injury and first-degree murder.

Roach had been baby-sitting 3-year-old Hailey Rae Resch two years earlier when the child stopped breathing. Paramedics were unable to revive her.

An autopsy by the Office of the Chief Medical Examiner found an array of injuries: five subgaleal hematomas; bilateral ubdural neomembranes; contusions on the head, torso, and extremities; and bilateral retinal hemorrhages. Medical experts later testified that Hailey had experienced a subdural hematoma sometime in the weeks preceding her death.

Suspicion focused on Roach, who was indicted, prosecuted and convicted — at which point her attorneys asked the judge, John O. Craig III, to set aside the verdict.

Craig did exactly that, citing insufficient evidence to substantiate the jury’s verdict.

The unusual action stunned prosecutors, the victim’s family and courtroom observers.

The state appealed.

Yesterday, a three-judge panel of the N.C. Court of Appeals backed Craig’s decision in a unanimous ruling.

Read the entire story by Doug Clark by click here.

New Rules

New Appellate Rule 2 (Criminal) — Click here for details.

New Rule regarding late fees for late payment of Arkansas Bar dues — Click here for details.

New Rules governing admission to Arkansas Bar — Click here for details.

Dismissal does not bar future prosecution

The dismissal of a charge against a person does not bar future prosecution of the same offense, the Arkansas Supreme Court ruled Thursday.

In reversing an Arkansas Court of Appeals decision, the high court said a Boone County circuit judge was correct to deny Christopher Branning’s motion to dismiss a second-degree stalking charge on double-jeopardy grounds.

Branning was convicted of the charge and several others in 2005 and sentenced to 10 years in prison.

The state, which initially decided not to prosecute, was free to bring charges later, the high court said in a unanimous decision.

Branning was arrested in 2003 and charged with harassing communications, terroristic threatening, carrying a weapon and second-degree assault, all misdemeanors.

In 2004, he pleaded guilty in Boone County District Court to carrying a weapon and second-degree assault. The other charges were dismissed.

In 2005, he was charged in circuit court with second-degree stalking, first-degree criminal mischief, criminal trespass and two counts of first-degree terroristic threatening, all felonies, and a misdemeanor violation of a protective order.

A jury later found him guilty and sentenced to 10 years in prison.

In his appeal, Branning argued that the charges that were dismissed in 2003 were used as the basis for the 2005 second-degree stalking charge.

The Court of Appeals agreed and reversed and dismissed the second-degree conviction.

The state appealed to the Supreme Court, arguing that the high court has ruled previously that the state could refile a charge that had been dismissed earlier.

The Supreme Court on Thursday agreed, and also upheld the circuit court’s denial of Branning’s motion to dismiss. He had argued that he did not get a speedy trial.

Link to original story.

Supreme Court finds Private Company not subject to FOIA

ANB has the story.  The following is just an excerpt:

A private company doing business with the state is not subject to being sued to make its records of the deal public under the state Freedom of Information Act, the state Supreme Court ruled Thursday.

In a unanimous decision, the high court overturned a lower court decision ordering Nabholz Construction Co. to release a detailed listing of $2.5 million in overhead expenses it received for construction of a $35 million dormitory at the University of Arkansas.

The full Nabholz Supreme Court decision is here.