We had a good meeting this week. David Hodges presented the cases. We had some lively discussion about some of the cases. That is what this group is about. Different lawyers with different areas of expertise and different experiences can give our own points of view on important decisions and the implications those cases may have. We discussed how criminal defense lawyers can improve their practices in response to decisions such as Gordon v. State, 2012 Ark. 398. It is essential to make the best objection that you can, even when the objection has to be on the fly because of unanticipated evidence. In that case the prosecution was allowed to introduce evidence that the defendant was an aggressor in a fight that broke out while he was in jail awaiting trial. This evidence is highly prejudicial, but the trial court found it was admissible to contradict the defendant's testimony. The court also sustained a Daubert style objection to testimony of defendant's expert witness. Unfortunately, the proposed testimony wasn't proffered, so the Supreme Court couldn't consider the issue.
There was also a vigorous discussion of Mathis v Estate of McSpadden, 2012 Ark.App. 599. Should a mother's paternity suit, which she lost for failure to appear at trial, prevent a daughter from trying to prove paternity for purposes of inheritance years later? The Court of Appeals held that under the principle of res judicata,
Sometimes there is simply nothing that can be done about a serious error. Arnold v. State, 2012 Ark. 400 is an example of that. After a criminal trial, one of the jurors came forward and said that she misunderstood the instructions and doubted whether she had followed the instructions correctly. Under our rules, however, a court cannot hear evidence as to any matter or statement during the jury's deliberations unless outside information was brought to the attention of the jurors. Merely misunderstanding evidence, or the law, is outside the realm that a trial court can consider.
David had to put off discussion of a case he was involved in because we ran out of time. He is going to open the discussion of Smith v. Heather Manor Care Center, 2012 Ark. App. 584 next week. This case is very instructive on what we lawyers call "Batson" challenges. In Batson v. Kentucky, 476 U.S. 70 the United States Supreme Court held that it was improper to use preemptive strikes of jurors merely to exclude jurors simply on the basis of race. Here the defendant used all of its strikes on African-American jurors. The plaintiff showed a pattern of excluding African-Americans. This allowed the Court to inquire as to the basis for the strikes. The party who exercised the strikes must state a racially neutral explanation. It must be more than a mere denial of racial motivation, but it does not have to be a particularly good explanation. It need not be persuasive or even plausible. "Indeed, it may be silly or superstitious." Then the Court must determine if there was a racial motivation. Here the defendant's lawyer gave race-neutral reasons for excluding the particular jurors. The Court found that the plaintiff had not shown that the true motivation was race and upheld the strikes. This case is very instructive on how to handle a situation when you believe your opponent is using peremptory strikes to change the racial composition of the jury, and just how difficult it can be to actually prove it.
There were no decisions this week due to the Judicial Conference. I don't know what that will do the schedule. We'll just have to talk about it sometime next week.
We had a good crowd at our Advance Sheet meeting this morning. I believe we had particularly valuable input on today's recent cases because the lawyers present had handled two of the cases on appeal.
Gerry Schulze represented the Appellant in Cannady v. St. Vincent's Infirmary, 2012 Ark. 369. He was able to provide some insight on this important case.
Robert Tschiemer represented the Appellee in McVesting, LLC v. Heirs of McGoon, 2012 Ark. App. 541. Again, it was great to have the insight of a lawyer involved in a complicated and significant appeal.
Gerry Schulze is a lawyer in Little Rock, Arkansas and one of the members of the Arkansas Advance Sheets Study Group. He created this webpage and blog. We hope that in the future other members of the group will participate, but for right now, this is it.