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Reading is difficult. As a writer, I help the reader every way I can think of. As a reader, I work hard not to miss the big things in the middle of the road.

Thursday, December 31, 2009

On Renting, as Opposed to Buying, the Bluebook

The Bluebook is still in its 18th edition. The Bluebook people will sell you a copy for about $25. They'll also let you subscribe for $25 per year and for $15 per year for the next two years. The subscription means that you'd have your up-to-date Bluebook with you anytime you could get online. The subscription is a greater outlay of money than using the book. I also have the experience that flipping through books is practically always faster than waiting for pages to download. The subscription will be the way to go for true road warriors-- people who actually draft substantive legal documents as they make their business trips.

Tuesday, December 29, 2009

When the State Overreaches, the Defense Must Object

Sometimes the State does not know her own strength. In the case considered in Ex parte Lane, No. AP-76,141, 2009 WL 4825122 (Tex. Crim. App. Dec. 16, 2009). The State pops a defendant with life for having half a pound of meth and some pot. Defense counsel did not object to:
• .her co-defendant’s confession in their joint trial;
• an officer’s testimony about the Texas “methamphetamine epidemic;”
• that officer’s testimony about how meth is distributed in Texas and its wholesale and retail prices;
• the State’s argument, outside the record, that the defendant was bringing meth into Smith County, to poison the children of Smith County and turn them into addicts, and that children were in fact shooting up and smoking meth.
Her lawyer, it was said, should have objected to the “epidemic” and to the argument outside the record. No matter, though. She would have been found guilty anyway. The error was harmless, the court said..
At punishment, no objection was made to:
• a DEA agent’s testimony about the social problems caused by meth;
• that agent’s testimony about addiction and that 45,000 people could get high from the defendant’s meth;
• the State’s argument that it should consider the application of the parole law to the defendant.
This was the defendant’s first felony. Her priors were one year’s probation for possession less than two ounces of pot and a two-year probation for DWI. She successfully completed both of them.
Her boyfriend should not have been able to sell her down the river. How bad meth is is not relevant as to whether the meth was hers. And a half-pound of meth won’t get every man, woman, and child in a medium-sized suburb high. That’s just a lie.
With a prosecution like that, defense counsel coulda been a contender.

Monday, December 28, 2009

Tuesday, December 22, 2009

The Main Real Lesson of Rouse v. State

A defendant pleads guilty without a plea bargain(an "open plea"). The crime: shoplifting that turned into a robbery. (The law used to be that if a shoplifter grabbed or pushed someone while leaving the store, that would be a misdemeanor theft, now it's a felony robbery.). The defendant used to have a good job, and has fallen into crime by becoming addicted to drugs. The defendant has priors. The lawyer was hired, not appointed.
The defendant is shocked to get prison time, real prison time, not probation or the substance-abuse punishment facility. " . . . I was misled," said the prisoner. The trial judge says, "I don't believe that's true."
Defense lawyer faxes the trial court coordinator a paper titled "Notice of Appeal" 31 days after sentencing,apparently stating that counsel had told the defendant that the plea could be withdrawn if the judge's sentence were harsher than the defendant would like and complaining- accurately- that the judge had been impermissably involved in plea bargaining. The appeal notice is not followed up. More than three-and-a-half years later, the defendant seeks, and gets, an out-of-time appeal. The opinion of the Austin Court of Appeals is assigned to retired presiding judge of the Court of Criminal Appeals John F. Onion, Jr., who reverses the trial court and remands the case to it.
Now this case can be said to be about the importance of filing a motion for new trial timely, having whatever evidence is necessary for it to be presented to the trial court . It is not, though. The trial court stated in the record that it did not believe the defendant's claim of having been misled. The trial judge had considered the defense argument, and disagreed. This trial judge was no prosecution whore. The trial judge was elected out of Austin and contributed to MoveOn.org back in the day
The trial judge really made a judgment about the situation at the beginning, knowing the circumstances and observing demeanor of the witness before him. Every appellate judge is, by comparison, a paper-shuffling latecomer to the situation.
If the motion for new trial had been OK, the Court of Criminal Appeals would likely have found some other reason to reverse.

At Last! A Web Site for the Rest of Us!

Feel left out at the water cooler because you wasted your youth slaving over a hot word processor and hanging out at libraries? Even fake-jock fanboys stare you down at the office because you are not up with sports?
Well, fellow legal-writing/appellate-law nerds, have I got a web site for you! Fantasy Supreme Court of the United States! For ten fast simoleons (or less!), you can, as the web site promises, "Play like the Tenth Justice."
A great idea!
I can hardly wait!
Hat tip to Adjunct Law Profs Blog.

2009 Was a Very Good Year

Elliott Wilcox (www.trialtheatre.com) reminds us of the virtues of 2009. It was the best year for movie box office in history. Captain Sullenberger reminded us that professionalism, preparation and-- most amazing of all-- modesty are not dead virtues. Susan Boyle showed us that angelic beauty may be all about us unawares. Brett Favre showed that old school folks can sometimes school young whipper-snappers.
A blog about writing could not pass without mentioning what appears to me to be the great screenwriting achievement of this year- Roberto Orci's and Alex Kurtzman's play for Star Trek. I am reminded of Calvin Trillin's simile for a difficult task- like walking a slack wire in open galoshes- when I think of all the possible missteps they could have made.
No real seismic shift in the law in '09. No Heller for this year. SCOTUS did not pick up the gauntlet in Holder. Probably the biggest change in the law this year was Arizona v. Gant Tucson cops arrested Rodney Gant for driving with a suspended license, cuffed him and stuffed him, and then searched the car he was in, finding cocaine in his jacket in the back seat. They didn't have a warrant. The Supremes held, in essence, that after the officers were safe, they did not have any business searching the car that Gant had been in except as to his suspended license charge.
Most importantly, wooed and won my wife this year. Love is grand. It is also terrifying.

Monday, December 21, 2009

U.S. Supreme Court Database to Expand

The United States Supreme Court Database provided by a group of law schools and political science departments has received funds to expand its case coverage to the founding of the Court in 1792. The database doesn't have keynotes like West does, but the price is right: the schools do not presently charge for access.
Hat tip to Adjunct Law Prof Blog

Wednesday, December 16, 2009

Fourth-Year Associate Gets to Argue before the United States SupremeCourt

It is unusual and gratifying for a fourth-year associate at a white-shoe law firm to get to argue a case before the United States Supreme Court. This news item also shows the importance of moot courts in preparing for oral argument.http://newsblogs.chicagotribune.com/chicago-law/2009/11/fourth-year-associates-at-big-law-firms-rarely-find-themselves-making-an-argumentbefore-the-us-supreme-court-but-thats-whe.html

Tuesday, December 15, 2009

She Is My Candy, Girl

In Nolan v. State, No. 13-08-00526-CR in the Thirteenth Court of Appeals (Corpus Christi- Edinberg), the court notes refer to the reporter as Kelly Kelly. Wasn't there a song written about her in the late '60s?

Facebook Can Prove Violation of Judicial Directions

Records from Facebook, etc., could prove private, predeliberation case communication before the jury is sent back to the jury room. Seems to me that in the same way it could prove up violation of protective orders or injunctions. See http://mashable.com/2009/12/15/jurors-facebook-friends/

Friday, December 11, 2009

Texas Green Book- When to Expect the New Edition

The Texas Rules of Form, the best authority for how to cite Texas law, is currently in its 11th edition (2006). The website for the Rules of Form say that UT expects to have the 12th edition next summer.