Tuesday, March 27, 2007

Oral Argument about Blakely and Belated Appeals

If you read the Indiana Law Blog--and who doesn't?-- then you probably saw this item about an oral argument in the Indiana Supreme Court about Blakely and belated appeals. Well, the argument did happen last week. And although I did not make it into the attorney list in the web description, I did do about 15 minutes of the argument.

The irony is that my 15 minutes of fame had nothing to do with Blakely, because my client's case (Moshenek in the Court of Appeals) had nothing to do with Blakely.

And here's how it happened. A friend of mine became a judge. I was "babysitting" the case on transfer. Suddenly I find myself going to the Little Big Top (SCOTUS has to be The Big Top) in a case not mine and about which I know almost nothing, on an issue I know almost nothing about (Post-Conviction Rule 2 and belated appeals), and I don't get to talk about Blakely--the other guy does. (And John Pinnow did a brilliant job of it too, I think.)

Christina Klineman had the unenviable job of doing rebuttal for three cases not her own in the four-case scrum. What a job she did.

Anyway, here's the direct link to the argument. (RealPlayer required and will open on clicking the link.) I think I spoke loudly enough for the court. The microphone is another matter. John Pinnow does the first 17 minutes or so about Blakely. I do the next 15 about Post-Conviction Rule 2. The State does its 40 minutes. Finally, Christina Klineman cleans up after the mess left by the State.

From total ignorance, I might have become the world expert at the moment on Indiana Post-Conviction Rule 2. And I hope the Indiana Supreme Court doesn't do anything to change that. If there was any point I tried to get across that was not specifically related to my client's case, it was the Post-Conviction Rule 2 is older than dirt--actually a 1970 codification of the common law--and that there is no reason Blakely should deform what has been the uniform analysis under the rule.

Also, as I said to the court, Post-Conviction Rule 2 is an odd sort of creature. There is a fundamental constitutional right to an appeal in a criminal case. It's right there in the Indiana Constitution. Post-Conviction Rule 2 puts the burden, the cases say, on defendants to prove that they did not waive their right to an appeal. The cases say that; the rule doesn't. And I cannot think of another context in which the law requires someone to prove that they did not waive a fundamental constitutional right. It (almost) always works the other way 'round.

Here are the links to the Court of Appeals opinions in the other cases: Gutermuth, Boyle, and Medina. The Supreme Court has granted tranfer in Gutermuth already. Transfer is pending in the others. Medina was NFP.

For some background, here are links to my previous posts about what I called Blakely "pop-up" appeals:

More about Post-Conviction Rule 2: When Plain Language Means Its Opposite (10/19/06)

Baysinger: Another Blakely Pop-Up Belated Appeal (10/13/06)

Gutermuth: The Blakely WayBack Machine (6/8/06)

And a final note. When you start into the history of the law, all kinds of things pop up--not just Blakely appeals. Possibly the best bit of irrelevance I stumbled upon was Sanders v. State, 85 Ind. 318 (1882). Turns out that Mr. Sanders confessed to the murder of his wife on the advice of his lawyer. The alternative was a lynch mob. Pretty good advice that lawyer gave. Here's a snippet from the facts:

The facts stated and proved are these: In April, 1878, Josephine Sanders, the wife of the appellant, was slain by a pistol shot; at the time she was in a room alone with her husband, and he did not and could not give any account of her death; he was then, and had been for many years, addicted to the use of alcoholic liquor and opium to such an extent that he had probably become insane; he was arrested shortly after the death of his wife; his case came on for trial; his counsel and many witnesses of unquestioned veracity testify that at the time of his trial he was insane; the homicide had aroused an intense feeling in the vicinity of the county-seat, where the killing was done, and the case put to trial; threats were made of lynching by a mob; counsel prepared an affidavit for delay, but feared to present it lest the mob should seize and hang the accused; the sheriff of the adjoining county came to the county-seat of Clay county and warned the sheriff of that county of imminent danger from an armed mob; a jury had been empanelled and a plea of not guilty entered, but so great was the threatened danger that counsel, to save, as they believed, their client's life, withdrew the plea of not guilty, entered a plea of guilty, on which, without evidence, the jury returned a verdict of guilty, and a life sentence was immediately pronounced upon the verdict by the court; the accused was at once hurried to the train and conveyed to the State's prison. For the purpose of clearly exhibiting the situation at the time the plea of guilty was entered, we quote from the testimony of the gentlemen who were then appellant's counsel, and who are men of high character and undoubted integrity. One of them says: "As one of his counsel I urged and demanded of him a plea of guilty, with which I pledged myself to save his life; his counsel all concurred; Sanders always denying any knowledge of the homicide; his counsel were responsible for the act of pleading guilty, believing at the time that it was the only course by which his life might be saved."

The Indiana Supreme Court stepped up to the plate and reversed Mr. Sanders conviction, even though procedurally there was no real way to do it:

It is almost a mockery to call that a trial, or a judicial hearing, which condemns an accused upon a plea of guilty forced from his reluctant counsel by threats of an angry and excited mob, and interposed because they believed that to proceed with a trial upon a plea of not guilty would result in the hanging of their client by lawless men. A man who makes a promissory note because of fear is entitled to relief. A man who executes a deed under duress is entitled to judicial assistance.

The court found itself in a pickle, because it could not grant a new trial where there had been no trial. An appeal would have been useless with the confession in the record. So, if I read the case correctly, the Sanders court pulls a writ of error coram nobis out of the English common law hat--with some modifications--and saves the day. And from Sander on, that was post-conviction relief in Indiana until the Post-Conviction Rules.

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