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Joe's Dad and Bonny's Brother.

Wednesday, January 4, 2017

How should Texas Constitution, Article I, Section 11b Be Read with Federal Due Process Standard?

Ex parte Heath Shires, No. 02-16-00348-CR, (Dec. 29, 2016), a ruling on a pre-trial writ of habeas corpus by Fort Worth's Second Court of Appeals, seems to me to be a good candidate to get to the Court of Criminal Appeals. The appellate panel is all-female: Justice Lee Ann Dauphinot, Justice Lee Gabriel, and Justice Bonnie Sudderth. Justice Sudderth writes the majority opinion. Justice Dauphinot dissented.
Shires is indicted on four sex offenses against a minor October 14, 2014. Two of his bail conditions are that he is not supposed to drink alcohol nor is he supposed to commit another offense. He is arrested for felony DWI September 4, 2016. Two of his bond conditions are that he is not supposed to drink alcohol and that he is not supposed to drive any vehicle that does not have an alcohol interlock. On September 6, 2016, State says Shires's bond for the four earlier offenses is too low. 
There was a hearing on raising the bond amount on the old charges Sept. 6, 2016. the parties stipulated that Shires had violated the bond conditions, but Shires argued that his bond should not be revoked, but that an alcohol monitor should have been attached to him. He also argued that Tex. Const. art. I, sec 11b, violated the 14th amendment of the U.S. Constitution. The trial court rejected the challenge and allowed the hearing on it to make a record for the habeas writ. 
Shires challenges sec 11b's federal constitutionality as applied to him. The majority rejects Shires's claim that federal precedent required that every trial court to apply a clear and convincing evidence standard, nor requires each trial court to consider
if additional bond conditions may adequately assure the safety of the community
or the victim. 
Justice Dauphinot submitted that 11b had to be applied in light of the federal due process standard, and that the appeals court should have reversed and remanded to the trial court with instructions as to what federal due process precisely required (She appeared to me, to think that Shires, at least in part, had the right idea.
The State has the burden of proving the allegations of its motion. The trial
court must be convinced by the evidence that the State has borne its burden.
The issue is not whether some appellate court can, by speculation and reading
between the lines, cobble together enough possibilities to support the State’s
allegations and to support a determination that the detainee must not be released
under any conditions because no conditions exist that will reasonably protect the
public. The record must reflect evidence from which the trial court can make the
legally mandated determinations, and the trial court must actually make the

necessary determinations.

Justice Dauphinot aged out of her position at the end of 2016 and has had to retire. I can't really imagine her getting that old; she always seemed to me to be younger in spirit than people many years her junior. For what it's worth, I liked her and am going to miss her.

Saturday, December 10, 2016

Which Criminal Defendants Have the Right to Appointed Counsel at Trial and on Appeal?

The Sixth Amendment guarantees indigent defendants, in state and federal criminal proceedings, appointed counsel in any case in which a term of imprisonment is imposed.United States v. Bryant, 136 S. Ct. 1954, 1958, 195 L. Ed. 2d 317 (2016) The federal constitution imposes on the states no obligation to provide appellate review of criminal convictions. McKane v. Durston, 153 U.S. 684, 687 (1894). Where an indigent has only one appeal, that person has a right to counsel as to that appeal. Douglas v. Cal., 372 U.S. 353, 357 (1963). A state need not appoint counsel to aid a poor person in discretionary appeals to the State's highest court, or in petitioning for review in the Supreme Court of the United States. Cf. Ross v. Moffitt, 417 U.S. 600, 615 (U.S. 1974).

Wednesday, December 7, 2016

From the Grave, Steve Jobs Reaches for all the Smartphone Profits of his Competitors, but SCOTUS stops Him.

The Supreme Court of the United States decides Samsung Electronics Co. v. Apple Inc. It came up on appeal from the United States Court of Appeals for the Federal Circuit, the national court of appeals for patent matters, among others. It had been established that Samsung, among others, infringed on some of Apple's patents in their cellphones-- things like having a rectangular front face with rounded edges and a grid of colorful icons on a black screen. Apple was awarded $399 million in damages—Samsung’s entire profit on their infringing phones. On certiorari to SCOTUS, Samsung, et al, complained that the Samsung defendants should not have to pay Apple all its profits, when many, if not most, of the features of their phones were not infringing. Justice Sotomayor, a former trademark lawyer, wrote an opinion for a unanimous Court reversing the lower court and remanding the case to it, That lower court is ordered to award Apple only those damages from the infringing aspects of the defendants' phones, not all of the profits the defendants made on the phones.

Samsung Electronics Co. v. Apple Inc., No. 15-777 (U.S., Dec. 6, 2016)

A hat tip goes out to our friend, The Woodlands' patent badass Basil Angelo, for sharing his views of the case. Of course, the views here are ours' and he is not responsible for them or for any errors in this post.

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.