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Joe's Dad and Bonny's Brother.

Thursday, December 1, 2016

Amendments to the Federal Rules of Appellate Procedure Go into Force Today

Amendments to the federal rules of appellate procedure go into force today. This is a link to the rule changes. The most important changes will be to reducing word counts in briefs.

I feel forced to copy this here, because I don't know how long the Fifth Circuit's guidance about reducing word count and cases in briefing will be on the front of their web site.

Guidance regarding reduced word count and cases in briefing.

Reduced word counts became effective December 1, 2016, pursuant to changes to the Federal Rules of Appellate Procedure. To ensure fairness to parties, for cases in briefing where an appellant filed a brief before December 1, 2016, and an appellee's brief will be due on or after December 1, 2016, the appellee's brief may use the former (greater) word count limitation, if necessary.  As the court continues to consider possible changes with respect to new word count limitations, counsel are invited to review Fifth Circuit Circuit Rule 32.4.

Fifth Circuit miscellaneous fees are going up.

Thursday, November 17, 2016

What Happens to Trial Exhibits on Appeal?

In Texas state practice, admitted trial exhibits are attached to the court reporter's record. Where an exhibit is very valuable (e.g. a bearer bond) or dangerous (a firearm) or very bulky (an image as large as a billboard), trial judges will often grant motions for images of exhibits to be substituted for the exhibits themselves.
At the court reporter's request, the trial court clerk must give all original exhibits to the reporter for use in preparing the reporter’s record. Unless ordered to include original exhibits in the reporter’s record, the court reporter must return the original exhibits to the clerk after copying them for inclusion in the reporter’s record. If someone other than the trial court clerk possesses an original exhibit, either the trial court or the appellate court may order that person to deliver the exhibit to the trial court clerk.
 If the trial court determines that original exhibits should be inspected by the appellate court or sent to that court in lieu of copies, the trial court must make an order for the safekeeping, transportation, and return of those exhibits. The order must list the exhibits and briefly describe them. To the extent practicable, all the exhibits must be arranged in their listed order and bound firmly together before being sent to the appellate clerk. On any party's motion or its own initiative, the appellate court may direct the trial court clerk to send it any original exhibit.

Tuesday, November 8, 2016

Things Could Be Different

Mark W. Bennett runs for Texas Court of Criminal Appeals Place Six in the upcoming election. He is the Libertarian nominee. When asked why he was running. he was most direct: "Somebody has to," and that the incumbent stands for the status quo. He opposes partisan elections for judicial office, says that they are harmful to freedom and justice, since long-time partisans get nominated and, therefore, elected, even though if one were to seek the best judges possible, Republican or Democratic party hacks would be the last place reasonable people would look. He offers a different choice.
Mark W. Bennett caused part of the statute against improper relationship between educator and student to be held to be unconstitutional on the ground that non-obscene materials that concern sexuality may well be appropriate objects of study, and disallowing communication about them is a content-based restriction on protected speech. Examples would be "The Rape of the Sabine Women,  the "Venus de Milo," ancient Greek myths concerning the sexual prowess of Zeus and Renaissance ribald plays (I noticed that there was no mention of the Bible-- the end of the story of Noah, Lot's daughters, the Song of Solomon, etc.).
Bennett proposes to make lawyers work harder-- he believes CCA judges are afraid to find ineffective assistance of counsel when defense lawyers give it and are afraid to recognize pleadings that do not state a cause of action, when prosecutors write them.
Many law students and young lawyers, when they first encounter criminal practice are struck how much the State seems to always be fighting from the high ground. The criminal laws that are important on a day-to-day basis favor the State, either directly or by effect. And on top of that, judges who use their considerable discretion to practically always  favor the State tend to be rewarded by the electorate rather than punished. Bennett appears to find this scandalous, and wishes to show that the status quo is not inevitable, it is what the electorate votes for. People could vote for something different. 

Saturday, October 15, 2016

Retired Ninth Supreme Judicial District Appeals Justice Dies

The honorable James Donald McNicholas, former associate justice of the Beaumont's Ninth Count of Appeals, died Thursday, October 13, 2016 at Harbor Hospice- apparently at one of their Beaumont locations. He had been the municipal judge of Beaumont for approximately the last ten years, continuing until just before he died. He served as on the Court of Appeals only from 1983-1984.

McNicholas was born in Marinisco, a tiny logging village on the Upper Peninsula of Michigan, a tiny village near the Wisconsin border on April 23, 1918. He got his undergraduate degree and law degree from the University of Michigan. Before his last year of law school, he served as a Captain in the Third Army during World War Two and served under George Patton. He received his law degree in 1948. He was admitted to the Michigan bar in 1948 and the Texas bar in 1949. McNicholas was admitted to practice in all Texas state courts and the United States District Court for the Eastern District of Texas as well as the United States Court of Appeals for the Fifth Circuit. He is a member and past president of the Jefferson County Bar Association, as well as a member of the Texas Association of Defense Counsel.

Judge McNicholas practiced law in Beaumont for sixty years. Most recently he was of counsel at Germer, PLLC. He was Mayor of the City of Beaumont from 1968-1970 and was a Board Member of Jefferson County Drainage District Six at his death. 

Funeral services will be held at 11:00 a.m. on Monday, October 17, 2016, at St. Andrew’s Presbyterian Church, 23rd and Gladys, Beaumont, Texas. Our condolences go to his family.

Friday, October 14, 2016

Dallas Court of Appeals Justice Resigns in Lieu of Facing Removal Proceedings

David Lewis, a justice on Texas's Fifth Court of Appeals in Dallas, resigned just as removal papers were filed against him with the Texas Supreme Court on Tuesday. Lewis suffered from alcoholism and depression and had been suspended without pay since September 2014. According to the records of the Texas Commission for Judicial Conduct quoted in the Dallas News blog of the Dallas Morning News, Lewis was "erratic, hostile and threatening." A doctor chosen by the Judicial Conduct Commission reported that Lewis's problems began as early as 2013 and that a scan of his brain in 2015 is of a person who is experiencing decreased cognitive function and is trying to cover that up.
Governor Abbott will appoint a person to fill Lewis's seat on the bench until his term ends in 2018. Lewis is a Republican. Texas's Fifth Court of Appeals is the state appeals court for Collin, Dallas, Grayson, Hunt, Kaufman, and Rockwall counties.
Hat tip to the Texas Lawyer newspaper's online bulletin.

Wednesday, October 12, 2016

". . . don't pull the mask of the ol' Lone Ranger and don't mess with SCOTUS"

In Booth v. Maryland, 482 U. S. 496 (1987), the Supreme Court of the United States held that “the Eighth Amendment prohibits a capital sentencing jury from considering victim impact evidence” that does not “relate directly to the circumstances of the crime.” Four years later, in Payne v. Tennessee, 501 U. S. 808 (1991), the Court granted certiorari to reconsider that ban on “‘victim impact’ evidence relating to the personal characteristics of the victim and the emotional impact of the crimes on the victim’s family.” The Court's holding was expressly “limited to” this particular type of victim impact testimony. Booth also held that a victim’s family members’ characterizations and opinions about the crime, the defendant, and the appropriate sentence violates the Eighth Amendment, but no such evidence was presented in Payne, so the Court had no occasion to reconsider that aspect of the decision. The Oklahoma Court of Criminal Appeals has held that Payne implicitly overruled that portion of Booth regarding characterizations of the defendant and opinions of the sentence. Conover v. State, 933 P.2d 904, 920 (1997).
A jury convicted petitioner Bosse of three counts of first-degree murder for the 2010 killing of Katrina Griffin and her two children. The State of Oklahoma sought the death penalty. Over Bosse’s objection, the State asked three of the victims’ relatives to recommend a sentence to the jury. All three recommended death, and the jury agreed. Bosse appealed, arguing that this testimony about the appropriate sentence violated the Eighth Amendment under Booth. The Oklahoma Court of Criminal Appeals affirmed his sentence, concluding that there was “no error.” 2015 OK CR 14, ¶¶ 57–58, 360 P.3d 1203, 1226–1227.
SCOTUS doesn't like lower courts messing with its precedents.
The Oklahoma Court of Criminal Appeals remains bound by Booth’s prohibition on characterizations and opinions from a victim’s family members about the crime, the defendant, and the appropriate sentence unless SCOTUS reconsiders that ban. 
The State argued in opposing certiorari that, even if the Oklahoma Court of Criminal Appeals was wrong in its victim impact ruling, that error did not affect the jury’s sentencing determination, and the defendant’s rights were in any event protected by the mandatory sentencing review in capital cases required under Oklahoma law, but SCOTUS is sending the case down on remand. 
Shaun Michael Bosse v. OklahomaNo. 15–9173, 580 U.S. ____, (Oct. 11, 2016) 

Saturday, October 8, 2016

Justice by the Book, Not by the Sound Bite

Meet the Presiding Judge of Dallas County's Criminal Court Number One, Robert Burns. He is also the Democratic Party candidate for Texas Court of Criminal Appeals Place Six,
He came to live in north Dallas when he was 5 years old, graduated from Richardson High School, then my alma mater Austin College in Sherman, a long hour's drive north of Dallas. He's a 1990 diplomate of Southern Methodist University.
His Republican adversary is Judge Michael Keasler.
He has a strong court management record, and has a strong reputation for attention to detail in his work.