IN THE CIRCUIT COURT OF PULASKI COUNTY, ARKANSAS FIFTH DIVISION

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1 ELECTRONICALLY FILED 2014-Feb-05 16:04:13 60CR C06D05 : 7 Pages 1 IN THE CIRCUIT COURT OF PULASKI COUNTY, ARKANSAS FIFTH DIVISION STATE OF ARKANSAS PLAINTIFF VS. No. CR MASHIEKA MURPHY DEFENDANT MOTION FOR JUDGE WENDELL L. GRIFFEN TO DISCONTINUE THE PRACTICE OF APPLYING HIS POLICY, KNOWN AS MY DOG BITE RULE, TO ANY CASE, OR IN THE ALTERNATIVE, FOR THE COURT TO DISQUALIFY ITSELF FROM HEARING ANY CASE WHERE HE DEEMS HIS MY DOG BITE RULE IS APPLICABLE Comes now defendant, Mashieka Murphy, by and through her attorney, Mac Carder, Jr., and for her motion states the following: 1. Defendant is charged with Battery in the 2 nd Degree in 5 th Division Circuit Court, before the Honorable Wendell L. Griffen, Circuit Judge. Defendant has no criminal history. 2. On February 11, 2013, this Court granted Defendant s motion to waive a jury trial in this case, without objection from the State. 3. On August 15, 2013, both counsel and the prosecuting attorney, following many months of investigation and many hours of trial preparation that included, but was not limited to the following: visits to the crime scene(s), analysis of medical records, interviewing of witnesses (both for and against the respective parties), comparing those interviews to the witness' previous statements that were taken by police officers; as well as personally conducting numerous client and victim consultations concerning the relative strengths and weaknesses of the respective parties' cases, were able to arrive at an understanding of what was mutually agreed to have been

2 a close approximation of the events that transpired on the day in question. With this understanding of the disputed facts of the case and the prosecutor's thorough analysis of the relative culpabilities of the parties involved,1 she extended an offer to counsel. Counsel conveyed the offer to Defendant Murphy, who accepted it with the following terms: Five Years 2 Probation, $1000 fine, court costs, complete a program for anger management and pay restitution to the victim in an amount to be determined. 4. A plea statement was submitted to this Court which contained the terms of the agreement. (See attached Exhibit 1). Defendant Murphy was sworn by the Court and upon reading the agreed recommendation of punishment sought by the State and Defendant - but prior to proceeding with the negotiated plea of guilty - the Court stated that it would not accept or impose the State s recommended sentence of probation on this case, citing a strict personal policy that the Court referred to as "my dog bite rule" or "my country dog bite rule". (See attached Exhibit 2, transcript of proceedings, pp. 3,11., hereinafter referred to as "T.") THE COURT:...Counsel approach. THE COURT: I have got a negotiated plea statement on battery two. That calls for probation. Why? MR. CARDER: Well, it's eligible. THE COURT: My dog bite rule. (T., p. 10) The exact application of this policy to specific offenses was heretofore unknown by counsel and the prosecution; namely, a strict prohibition against the imposition of a sentence of probation on any violent case. The origin of this rule has henceforth been referenced by this Court on occasions as originating in or around the countryside of Pike County, Arkansas. 1 A co-defendant, Carlos Austin, was charged with Battery in the First Degree and accepted a negotiated plea of guilty for ten (10) years ADC.

3 3 bite THE COURT: And so I am obliged to tell you that I am not going to accept a plea that's going to involve me imposing a sentence -- I'm not going to impose a sentence of probation for a violent offense on a felony charge... MR. CARDER: Just for clarification for future clients, Judge, there's a lot of folks that are charged with battery second, so do I -- is it the Court's position it's not going to consider probation on any battery second? THE COURT: No, I'm not, and let me tell you why... One of my real concerns as a judge is we have a whole lot of violent behavior in our society where people are winding up getting hurt and folks apparently think that they can hurt folks and walk. It violates my country dog bite rule. If you and you're raising dogs, everybody, whether you're in town or in the country, knows if your dog bites, you pen your dog. You chain your dog, but you don't let your dog run. If I give probation, then the folks who bite are walking around to bite anybody they want to, and so let the folks know if you pull a battery two charge and it's a felony and you plead to it or I find you guilty, be prepared to be chained or penned because you have forfeited the right to walk around. (T., pp ) At the conclusion of the proceedings the Court granted defendant's motion to withdraw the plea but denied defendant's motion for the Court's recusal from this case. After the denial of this motion for recusal, counsel moved to withdraw defendant's jury waiver with no objection from the State and a jury trial was reinstated. 5. The Court s policy, which it refers to as my dog bite rule, is not contained in, referenced by, enacted or codified in any case law, Arkansas or federal statute, sentencing guideline, State or Federal Constitution or Arkansas or federal Rule of Criminal Procedure and therefore should be abandoned by this Court as unfounded in law. 6. The Court s application of its my dog bite rule policy of not considering alternative sanctions - where they are either presumed or available - based only upon the title or category of the charged offense, violates the fundamental rights of Due Process of Law under the Fourteenth Amendment to the United States Constitution of not only Defendant Murphy but of all defendants appearing before this Honorable Court who are subject to this Court s stated policy

4 4 denying any consideration of probation when the Court either finds a defendant guilty or the defendant pleads guilty before the Court. 7. The Court s my dog bite rule absolves the sentencing judge of exercising any discretion in deciding the disposition of battery, assault or sexual crimes (and possibly others as yet unknown by counsel) where alternative sanctions are available or even presumed. This hard and fast rule essentially holds that regardless of the nature, circumstances and facts of the crime, regardless of the criminal history of the defendant or any mitigating factors reflecting who the defendant is and regardless of the recommendation by the prosecution, this Court will always impose a sentence of confinement to the Arkansas Department of Correction based only upon the titled name of the offense or a given category of crime. See Woosley v. United States, 478 F.2nd 139 (8thCir.1973) ( holding that a Court's own personal policy of mechanically sentencing all defendants accused of an offense in a like legal category calls for the same punishment without regard to the past life and habits of a particular offender to be an abuse of discretion.), see also, Williams v. Oklahoma, 358 U.S. 576, 585 S.Ct. 421(1959) (holding and reaffirming the principles that in discharging his duty of imposing a proper sentence, the sentencing judge is required to exercise sound discretion and to consider all of the circumstances of the crime.); United States v. Wardlaw, 576 F.2nd 932,938 (1st Cir. 1978); United States v. Lopez-Gonzales, 688F.2nd 1275, (9th Cir. 1982) 8. This mechanistic application of a given sentence to a given category of crime, without regard to an assessment of a particular defendant s culpability, so erodes the sound discretion of this Court that it should disqualify itself from hearing any case that the Court applies his my dog bite rule policy. Absence a total abandonment by this Court of applying the my dog bite

5 5 rule to cases before him, no other remedy exists but for the disqualification of the Court from hearing any case that, in the Court s belief, would be subject to his personal sentencing guidelines. United States v. Barker, 771 F.2nd 1362 (1985); Turner v. State, 270 Ark. 969, 606 S.W.2nd 762 (1980). The fact that the Court pronounced its intention of not imposing probation for this particular defendant and instead to sentence her to prison without even requesting a factual basis for the plea indicates clearly that the there was an abuse of discretion by the Court in failing to hear, much less consider, the reason for the plea offer. The Judge was provided ample opportunity to do so when the prosecutor addressed the Court: MS. ABBOTT: Your Honor, just from the State's perspective, I think the State's concern on the Court's stance on the D felonies is that the creating of a black letter rule on this - and, as you know, in prosecuting these cases, we have to take them on a case-by-case basis with what the facts are and there is a wide range of things that can fall into the category of a D felony battery second. And I think it might be a little bit, from the State's perspective, premature to say that on no - there is no battery second that will ever be a candidate for probation when what you're actually saying is that in every D felony battery second, you are going to put the defense in a perspective to where they know that, without hearing the facts of the case, without hearing the allegations, you are telling the defendants that you are always going to do an upward departure from the sentencing guidelines. (T. p.12) 9. Forcing this defendant to a trial by jury, who otherwise would have been on probation now for almost six(6) months, because they are prohibited by this Court from accepting a plea offer of probation extended by the State, will not cure this abuse of discretion, nor will it restore Ms. Murphy's fundamental constitutional rights to due process of law, a fair proceeding and proper punishment under the Fifth, Sixth and Eighth Amendments to the United States Constitution, as this Court will also deny a defendant's request to submit an alternative sanction jury instruction to the jury. (see also attached exhibit #3). As well, the possibility would still

6 exist that a jury could deadlock on sentencing after reaching a verdict of guilty on one of the 6 Court's "dog bite rule" category of offenses and sentencing would then shift to the Court to mete out automatic confinement to the Arkansas Department of Correction, regardless of mitigating circumstances. Either way, the defendant would be restricted and bound by an unreasonable policy and subjected to this Court's mechanical sentencing formula, resulting in certain incarceration. Because of the random nature of defendant's cases being assigned to a particular division of circuit court and the fact that no other Judge within the 6th Judicial District employs the use of this Court's "dog bite rule", had she been assigned to a different judge in a different division in the same courthouse, the results of this case would be vastly different. Ms. Murphy would then be able to take advantage of being a first time offender with no record whatsoever and placed on probation like other defendant's similarly situated, pursuant to the Equal Protection Clause of the Fourteenth Amendment of the United States Constitution. WHEREFORE, Defendant respectfully moves this Honorable Court to discontinue its use of a personal policy that is referred to as my dog bite rule as a rigid and arbitrary policy where eligible defendants are not given the consideration of probation because of a personal policy that sentences defendants to prison regardless of facts or criminal history, or, in the alternative, to disqualify itself from hearing all cases in this category and to transfer the cases for reassignment to another circuit court division, and for all other just and proper relief. Respectfully Submitted, BY: //S//: MAC J. CARDER JR. DEPUTY PUBLIC DEFENDER 201 S. Broadway St.,Ste.210 Little Rock, Arkansas 72201

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