Initial Trial Testimony Allowed to Be Reused at Trial on Remand after Witness's Death

A witness from a trial died before the retrial required by jury charge error. Would prosecutors reading the witness's testimony from the first trial at the second trial violate the defendant's right to confront the witnesses against him? The Texas Court of Criminal Appeals ruled that it did not. Judge Charles Holcomb wrote the opinion for every judge on the court except Judge Lawrence E. Meyers, who dissented. This is an original appeal from a death penalty trial. The defendant, Raymond Deleon Martinez, brought seven points of error. He complained of the factual sufficiency of the finding that he would be a future danger and of the finding that he deliberately intended to kill a person. These claims are based on Clewis, which was overruled by Brooks, as readers of this blog know. The legal sufficiency of the evidence of his future dangerousness was manifest. Three other points of error were attacks on the constitutionality of statutes that had been found constitutional before.
So how did they find that a trial transcript didn't violate the rule requiring confrontation? Because he had a chance to confront the witness at the first trial. They didn't find that the different jury charge was a material difference in the trials. I'd be curious to find if the material difference in the jury charges was why Judge Meyers dissented.

Are Hand-Written First Drafts Better?

Erik Gerding of the Conglomerate Blog makes an intriguing suggestion that we all might be better off hand-writing our first drafts reporting that law school professors say that law students who handwrite their exam answers and opposed to word-processing the answers tend to make the better grades in a class. He also pointed out that the legal work on the documents that occasioned the Great Recession was done by lawyers cutting and pasting parts of old documents rather than by drafting the documents from scratch. He implies that handwriting a draft might have improved their understanding of the nature of the documents and that someone would have understood the documents better and pulled the plug before the crisis. (Making money in the present blinds one to future dangers, such as the practical uninsurability of the risk of credit default.)
Still, I do believe that I understand my documents better when I have hand-written the first drafts of them.
I read in Skeptic magazine that Jared Diamond, the brilliant and thoroughly up-to-date author of The Third Chimpanzee and the wonderful Guns, Germs and Steel, makes his first drafts by hand. I haven't been going that far, though even now, important pieces of writing need a hand-made diagram before I start writing, or, at least, before I start writing in earnest.

Internet Teaching Model May Improve Legal Theory Learning

The cutting edge for some forms of legal education may be here. Many parts of legal theory seem to me to be well adapted to the Khan Academy method of teaching, such as appellate theory and rules complex in their application such as the Rule Against Perpetuities, hearsay within hearsay and Choice of Law, to name only a few.

An Appeals Court Is Much More Interested in Some Mistakes than Others.

What is a standard of review? It is the rule that a higher court uses to determine whether or not to correct something that happened in a lower court. Most appeals are appeals from trial courts. The two most common standards of review are:(1) abuse of discretion and (2) de novo (A review by the de novo standard may also be called a review by question of law.).
A judge can make many decisions at trial that observers might disagree with, but they might not be reversible error. A judge may find that some evidence is repetitive of earlier evidence and not let it in, while another judge would let it in. For one of the parties to complain about a decision about that is not likely to move an appeals court. The higher court doesn't want to "Monday morning quarterback" trial judges about decisions like that. The trial judge has the litigants and their counsel before the court, and is more likely to make a good decision than appellate justices reading a cold record a year later.
Some decisions appellate courts expect trial courts to get right such as whether to grant a summary judgment or to leave a question out of a jury charge. Appeals courts don't defer to the trial judges about such things. The appeals court will second-guess trial judges about such important matters. 

Be Real: Most Appeals Do Not Bring Relief

Appellants generally don't get relief. Generally, a decent brief prepared from scratch-- that is, not already pre-written in part-- takes days to write. The records, especially the reporter's record, are expensive. Litigants generally can't afford to appeal just because they want to. We'll talk about standards of review later-- that is, the rule that tells you how bad an error needs to be before an appeals court will correct it. Suffice it to say that generally, appeals should not be pursued unless the error is clearly contrary to law and harmful, or the judgment is of such a nature that it is a mortal blow figuratively or literally to a party.

Texas's Court of Criminal Appeals Defines How Little Reasonable Suspicion Needed for a Traffic Stop

Judge Barbara Parker Hervey, joined by all the other judges of the State of Texas's highest criminal court except Judge Johnson, who appears to have concurred without opinion, stated that the Fourth Amendment totality-of-the-circumstances test "requires only some minimal objective justification" for a stop like one in this case. The accused here was driving late at night, near a bar, where a trained and experienced officer saw the defendant driving aggressively.

"Business Casual" Vocabulary in Legal Writing

Subscription-based newspaper/website Lawyers USA has good advice. When considering vocabulary, think "Business Casual."

No, It's Not Just Your Imagination

Opinions of the Supreme Court of the United States are getting longer.

A Mandatory Minimum Sentence Is Added to Another Mandatory Minimum in the Gun Control Act of 1968

When the legislature rewrites a statute to overrule a high court's interpretation of that statute that the legislature deems too lenient, that rewritten statute will be interpreted to toughen rather than to weaken the law. That is how all eight justices on the Supreme Court--Justice Kagen recused herself-- resolved a split between circuits to interpret "An Act [t]o throttle criminal use of guns," known informally as the Bailey Fix Act, because it was intended to overrule Bailey v. United States, 515 U.S. 137 (1995). Bailey's conviction for using and carrying a gun in relation to a drug trafficking crime was overruled. The weapon had been locked in the trunk of the car Bailey was arrested in.

How Trial Lawyers Should Object

Trial lawyers should object until the court denies them relief.
Let's look at an example. Your adversary mentions a prior conviction of your client that's already been found to be too old to be mentioned and irrelevant. First, you object-- "Your Honor, I object, violates Evidence Rule 609(b)." (As a practical matter, you need to choose your one best objection. Also the rule number is a nice touch. The Court of Criminal Appeals can't complain you were vague about your objection.) Let's say the judge sustains your objection. YOU ARE NOT DONE. Move for an instruction to the jury to disregard the statement. "Your Honor, I move for an instruction to disregard the statement." Let's say the judge grants your motion and gives the instruction. YOU ARE NOT DONE. You should move for a mistrial; "Your Honor, I move for a mistrial."  The judge will not likely grant this. If the judge does, the trial is over, and will have to start again. The judge will likely deny the motion, but if the judge should have granted the mistrial, you will have preserved error.
What happens if you stop too early? If the judge grants you everything you ask for, you don't get any error preserved. The appellate court won't--can't-- overrule the trial judge because the trial judge did everything you wanted.
Don't let the judge's giving you the fish eye or telling you to move along make you hasty. Keep going till the judge denies you relief.

"Incurable" or "Plain" Error

We've been talking about preservation of error: the doctrine that an appellate court will generally not overrule a trial court's ruling if the complaining party did not let the trial judge know at the time-- usually by objecting-- that the party thinks that the ruling was wrong. We've talked about one exception to this rule: that objecting that a trial court or a lower appellate court did not have jurisdiction over a matter may be objected to at any time. An objection to the present lack of jurisdiction over subject matter in the appeals court that one is before at the time does not need to be made to preserve error.
Appeals courts have, from time-to-time in the past, recognized "incurable" error (which is what Texas criminal practice calls it) or plain error (what the feds call it). These are errors that are so bad that they don't need to be preserved. They are plainly wrong and the judge knew or should have known that they were wrong and the harm was so bad it completely tainted the proceedings.
There probably still are some errors that are like that, for example, a judge's coming down from the bench to testify as a witness in a matter. That error would not likely be excused because none of the lawyers objected (They would likely be thunder-struck with disbelief.). Nor would the judge's granting a motion to strike such testimony and instructing the jury to disregard it cure the error.
Incurable error, as a practical matter, likely no longer exists. The granting of a motion for new trial would cure any error. That this is true will tell you how a trial lawyer ought to object to preserve trial error.

Rehearing Denied in Sharon Keller Judicial Conduct Case

It's over. She did win. Hat tip to the Texas Lawyer Tex Parte Blog.

Subject Matter Jurisdiction Preservation of Error

I was told that it happened in Chicago, but the story is apocryphal. An obstreperous drunk disturbs the morning docket at the jail. The judge gets sufficiently angry to have the guy brought before him and he holds a quick trial which results in the defendant's getting the death penalty.
In a case like that, the trial court's lack of subject matter jurisdiction would not have to be preserved.
Subject matter jurisdiction is never presumed and cannot be waived. Texas Association of Business v. Texas Air Control Board, 852 S.W.2d 440, 443-444 (Tex. 1993). If a trial or appellate court inappropriately takes up a matter it does not have the power to, that lack of authority can be brought up at any time.
Anybody's who's been to law school or hung out a lot with a person who's been to law school, knows that practically every legal rule has exceptions. We'll catch up on another exception next week.

How Sharon Keller's Case Might Not Be Over

I don't know of a place where you can find this for free, but the Texas Lawyer has an article clearly explaining how Texas Court of Criminal Appeals Presiding Judge Sharon Keller's judicial misconduct case is not over yet. The meaty piece--great work by TL Senior Reporter Mary Alice Robbins--in no way lends itself to summary. The Commission's examiner--read "prosecutor"--basically argues that since the appellate court found the law to be different than the lower court thought, the lower court should have the benefit of that correction. The Commission might want to vote differently after the legal error was corrected.

What Would David Ogilvy Do?

Here I try to help you do legal writing. One of the best pre-law preparations I had for legal writing was to work as a journalist and an advertising copywriter. An article in Lawyers USA Online helps you apply advertising copywriting principles to your brief writing.
David Ogilvy, one of the founders of the advertising firm Ogilvy and Mather, was a master of long-form magazine copywriting. Now forms are shorter, and magazines are dying. The main long-form written persuasion that is left is: legal briefs.
Can't pass up a entry on Ogilvy in the Mad Men blog.

Presiding Judge Keller's Case Might Not Be Stone Dead

The Houston Chronicle reports how and why here.

Texas Supreme Court Justices Have Been to the Movies, Just Like Everyone Else

A blog post about Justice Don Willett's citation to Star Trek II--The Wrath of Khan appears in Geek Dad. Wrath is one of the two best science fiction movies ever-- the other being Forbidden Planet.

Fifth Circuit Stands Up for Slip-and-Fall Trial.

E. Grady Jolly, Fifth Circuit Judge, writing for a panel including Judge James L. Dennis and Senior Judge Harold R. DeMoss, Jr. of that court holds that a trial court should not have granted summary judgment in a slip-and-fall case, where there was some evidence that the "wet floor" sign that the slipped on might have been there long after the floor had dried and that other actions of the defendant might possibly show negligence.
Hat tip to Lawyers USA Online for this case.

Clewis Is Dead, Long Live Brooks and Jackson

"We granted discretionary review in this case to address, among other things, whether there is any meaningful distinction between a legal-sufficiency standard under Jackson v. Virginia ⁽¹⁾ and a factual-sufficiency standard under Clewis v. State and whether there is a need to retain both standards. ⁽²⁾ Under the Jackson v. Virginia legal-sufficiency standard, a reviewing court is required to defer to a jury's credibility and weight determinations. ⁽³⁾ In Clewis, this Court adopted a factual-sufficiency standard, which is supposed to be distinguished from a Jackson v. Virginia legal-sufficiency standard primarily by not requiring a reviewing court to defer to a jury's credibility and weight determinations. ⁽⁴⁾ But then Clewis contradicted itself by also requiring a reviewing court to apply this standard with deference to these jury determinations "so as to avoid an appellate court's substituting its judgment for that of the jury." ⁽⁵⁾ After having made several attempts to "clarify" Clewis in part to resolve this fundamental contradiction, we eventually came to realize that the Clewis factual-sufficiency standard is "barely distinguishable" from the Jackson v. Virginia legal-sufficiency standard. ⁽⁶⁾ We now take the next small step in this progression and recognize that these two standards have become essentially the same standard and that there is no meaningful distinction between them that would justify retaining them both. We, therefore, overrule Clewis and decide that the Jackson v. Virginia legal-sufficiency standard is the only standard that a reviewing court should apply in determining whether the evidence is sufficient to support each element of a criminal offense that the State is required to prove beyond a reasonable doubt".

This is what Judge Hervey said in her Brooks v. State opinion, which Presiding Judge Keller and Judges Keasler and Cochran joined.

Judge Cochran said for herself and and Judge Womack that both parties agreed that the proper issue in this kind of case is legal sufficiency of the evidence, and that logic requires a single standard of sufficiency review in criminal cases.

An argument might be made here, that the anti—Clewis holding here is dictum. Though it appears to me to be a logical consequence of their opinion, I believe, as a practical matter Cochran and Womack would say good riddance to bad rubbish.

Typing Is Important

In a per curiam opinion, Circuit Justices Jerry E. Smith, senior Circuit Justice Jacques L. Wiener, Jr., and Circuit Justice Jennifer Elrod held that after a supplemental trial court hearing that corrected an absurdity in the record-- that the defendant pleaded "not guilty" at his plea bargain setting resulting in a conviction-- could not attack the sufficiency of the evidence against him on appeal. The supplemental hearing showed that the defendant was pleading "no contest" rather than "not guilty." The guilty plea had been structured so as to allow him to challenge the search of his house, which was how the evidence of credit card abuse had been obtained.

Preservation of Error- General

Appeals courts generally don't let litigants complain about just anything in the trial below. (Why did I say "generally?" Because there is an important exception I'll talk about next week.) What the appellant complains about must not only be "error." It must be "preserved error."
Judges-- both on trial benches as well as appellate benches-- don't consider it sporting for a litigant to make a complaint about the trial, if the litigant did not tell the trial judge what the litigant thought was a mistake. Normally a litigant shows unhappiness with a particular matter by objecting. Generally, once a judge overrules an objection, that judge has been warned that the litigant might try to complain about that matter on appeal.
It is quite common for some judicial mistake to be just as plain as a pikestaff when the record is reviewed, only nothing can be done-- the lawyer did not recognize the error in the heat of battle.
The opposite of preserving error is "lying behind the log," a near-universal metaphor for a trial participant's holding knowledge of error during the trial, only to try to spring it on the trial judge on appeal.
Principles and pitfalls of preservation of error.: An article from: Florida Bar Journal

Where Complaint Good, Inmate Plaintiff Should Have Chance to Establish Some Evidence

Fifth Circuit Judges Patrick Higginbotham, Edith Brown Clement and Priscilla Owen, in a per curiam opinion, reversed and remanded the dismissal of a Texas state prison inmate's suit against the food service captain when the offender bit into a metal nut hidden in a piece of cornbread he was eating and broke a tooth. Kendrick Green, the plaintiff, alleged in his complaint that the captain had admitted to him that this was not the first time a foreign object had gotten into the food. The panel held that Green should have had the chance to prove this point before his suit was dismissed.

Should You Advise Your Client to Proceed in Appellate Court?

When trying to decide whether or not to advise someone to seek an appellate remedy, I often begin with what my dad first taught me about news writing, modified by what my journalism teacher taught me: Who? What? When? Where? Why? and How?
Who? Does the client have standing to seek a remedy? No use proceeding if the client does not.
What? Should the client act or  do nothing?
When? Has the deadline passed? Is the matter ripe for review? Appellate deadlines can be brutal, and, on the other hand, some obvious errors can't be fixed until years after they have been made.
Where? In rare cases, you might have a choice where to proceed, but usually not. Your only reasonable hope for some kinds of relief may be in a federal court, but it is usually against the law to start your appeal of a state court matter in the federal system.
How? If the client should act, is this a case for appeal or for a writ?
Why? The vast majority of appellate proceedings don't get the complainant any relief. A client's back may be against the wall such that everything must be tried. There are also cases where taking appellate action may have good side effects, such as to postpone an adverse judgment's becoming final when delay would be salutary for the client. Note, though, that delay may not be pursued merely for its own sake.
I intend, for the next couple of years, to share with you, bit by bit, what appellate matters call for appellate lawyers to think about. I fear that for a few of you what I am going to say is old hat. As I was outlining what I wanted to talk about, it seemed to be a huge amount of material.
If you want to eat an elephant, you must do it a bite at a time. We will, and I intend to salt it with fun.

Maybe You Don't Want to Argue Your Case in the Supreme Court Yourself

An observant and witty play by play of the United States Supreme Court argument in Snyder v. Phelps is here. Phelps's attorney-- his daughter Margie Phelps-- may well not have been ready for the big time.

Unarrested, Hospitalized Man in Custody as to Miranda

It's a mainstay of TV-- cops reading suspects their rights. Suspects' statements in custody may only be used in the cases-in-chief of their trials if they were read their rights before they made the statements. People who have been arrested are clearly in custody, but what about a hospitalized, unarrested suspect? The Colorado Supreme Court answered this question in Effland v. People, No. 09SC70, (Sept. 27, 2010), holding, in a 4-3 decision that under the totality of the circumstances, a hospitalized man was in custody per Miranda. His un-Mirandized hospital statements couldn't be used in the case-in-chief at his trial. Hat tip to Lawyers USA.

A Press Release from the Supreme Court of the United States about Oral Argument Recordings

Beginning with October Term 2010, the audio recordings of all oral arguments heard by the Supreme Court of the United States will be available free to the public on the Court’s Web site, www.supremecourt.gov, at the end of each argument week.  The audio recordings will be posted on Fridays after Conference.

The public may either download the audio files or listen to the recordings on the Court’s Web site.  The MP3 files of the audio recordings may be accessed by clicking on the “Oral Arguments” prompt on the home page, and selecting “Argument Audio.”  The audio recordings will be listed by case name, docket number, and the date of oral argument.  The recordings will also be accessible by clicking on “What’s New” on the site’s home page.

The Court began audio recording oral arguments in 1955.  The recordings are maintained at The National Archives and Records Administration.  Prior to the 2010 Term, the recordings from one Term of Court were not available until the beginning of the next Term.  The Archives will continue to serve as the official repository for the Court’s audio recordings. 

Hat tip to Kent Scheidegger, author of the Crime and Consequences Blog.  Supreme Court Practice

Electronic Briefs Are the Wave of the Future

An appellate lawyer who is ignorant of or terrified by the prospect of preparing a brief as an electronic brief-- often such a person is both ignorant and terrified-- will come to be seen as a dinosaur. E-briefs can be hyperlinked within themselves-- that is, clicking on something, a line in the table of contents, a case, a mention of an exhibit, can take the reader to the precise place referenced. They are less bulky. Parts of your brief can be cut and pasted into the opinion, saving typing. Lawyers USA's article requires a sign-in and maybe a subscription. The article is here. Federal courts tend to require them, and it's a good idea to supplement your paper brief with an ebrief on a disk anyway. The author of the post, Allison McAndrew, also includes  a link to Adobe Acrobat's blog.

No Supplemental Jurisdiction for a Diversity Case with a Local Intervenor for Chump Change

The only published opinion that came down from the Fifth Circuit Thursday is Griffin v. Lee, No. 09-30734, a per curiam from Chief Judge Edith Jones, Circuit Judge Edward C. Prado, and District Judge Halil S. Ozerden. Sylvester Griffin, a Mississippian, represented by Robert A. Lee, a Louisianan, sued persons from Delaware, Louisiana, New York and Ohio to reform a trust he was the beneficiary of. The suit was filed in Louisiana and was removed to the Monroe, Louisiana federal court under diversity jurisdiction. Lee was allowed to withdraw and intervened under Federal Rule of Civil Procedure 24, seeking his fee from out of the funds of the suit. His claim was less than $75,000. The trial court allowed Lee's claim under supplemental jurisdiction, and the Fives reversed and rendered a take-nothing judgment to Lee because, under 28 U.S.C. section 1367(b), there is not supplemental jurisdiction where complete diversity of citizenship has been destroyed and the amount in controversy is not great enough.

You Must Ask the Follow-Up Question if It's Your Error on Appeal

Justice Hollis Horton, writing for a panel that also includes Chief Justice Steve McKeithen and Justice Charles Kreger, holds that to complain that an objection to a voir dire question on the ground that it is a commitment question is waived unless an alternate question reworded to meet the objection is offered.

The First Court Gives Another Object Lesson in How Not to Get a Free Record, Etc.

Here is another example of how not to get free transcript record.

How Not to Get a Free Transcript

If a Texas civil appellant wants a free record on appeal (nothing is free-- a court can order officers, including court reporters to work without pay), how to get such a record is clearly defined by Texas Rule of Appellate Procedure 20.1. If such a person does not win a contest of indigency, after having brought forth the evidence required, then the appellant has to make arrangements to pay the record. This is the holding in Shanklin v. Texas Department of Criminal Justice, No. 01-09-00502-CV, no pet. h., September 10, 2010, a per-curiam memorandum opinion before Justices Terry Jennings, George C. Hanks, Jr. and Jane Bland. The standard of review is abuse of discretion. On the one hand, Ms. Shanklin:

• was a part owner of some real estate;
• had a boyfriend who paid all her and her eleven-year-old daughter's bills- including a truck note, credit card account and cable TV account for her
• had jewelry, a horse, some appliances and a computer that she could have sold or pawned;
• could not account for $8,000 she got four years ago;
• was "cursory and vague" when responding to questions about her attempts to find work in the last five- and-a-half  years, though she was a college graduate with basic computer skills; and
• she had not used a computer in her search for work.

On the other hand, a court could have forced a reporter appointed by the trial judge and who has to work closely with all the courts to work for Ms. Shanklin for no financial compensation. No judge has yet made or recommended such an order.

New Justices Coming to Austin's Third Court of Appeals.

The changes that are coming to Austin's Third Court of Appeals are here.

Academics Advised as to How to Write Less Badly

A clear list of Ten Tips on How to Write Less Badly is here. Recommended

News about the 2006 Texas Gubernatorial Election

Texas governors play a vital role in the selection of appellate justices. Former Democratic gubernatorial candidate and old law school classmate of mine Mr. Chris Bell has apparently obtained a substantial settlement and a substantial judgment against Republicans out of his last election.

A Witty Piece of Legal Journalism on Citation

Virginia Law Weekly's web site has it.

Easy-to-Use List of SCOTUS Case Statuses

Mayer Brown's Appellate.net has charts showing the status of cases that will be argued before the United States Supreme Court October Term, 2010.

Tips on Writing More Effectively

Law.com has "Tips on Becoming a More Effective Legal Writer."

The State Loses Two of Three Convictions of Wesley Wayne Miller

"I then did stand my trial, and boldly I did plea/ A flaw was in my indictment found and that soon had me free."- "The Lily of the West" (A traditional Irish song).
Wesley Wayne Miller, confessed and convicted murderer of Retha Stratton, got two of his three convictions reversed and remanded. The other one was held to have been waived. May be a federal court won't think so, but it is unlikely that he'll be able to get SCOTUS to take the case on direct appeal, and he may well be out before he can get his state habeas petition heard by the trial court and the state appellate court before essaying a petition in front of a federal judge-- the only kind of judge likely to give him any relief. If he can win any other part of the case though, his conviction will be overturned

SCOTUS's Official Reporter of Opinions Looks behind the Scenes and into the Future

Prominent U.S. Supreme Court journalist Tony Mauro interviews retiring Reporter of Opinions Frank Wagner. What point of usage relating to a branch of government do they disagree about? Which justice likes longer explanatory summaries before opinions, and which shorter?  How long will printed official volumes of Supreme Court opinions continue to be issued. Advice on the limitations of relying just on the opinion summaries or just on online versions of SCOTUS opinions is here. A helpful article.Supreme Court Practice

Must Reading for the Gun Rights Appellate Lawyer

Reading news reports of court action, especially appellate court action, is very frustrating. Vital information is often left out. Or one can tell from inconsistencies in the story that one can be sure that the story is wrong-- if only one knew which part. This post is about the finest piece of legal journalism I recall: Brian Doherty's "You've Come a Long Way, Baby" in the October Reason magazine. Doherty tells the background of appellate lawyer Alan Gura's successful assertion of  an individual, as opposed to a state's, right to keep and bear arms, in District of Columbia v. Heller, which he followed up with a second successful case on similar grounds: McDonald v. Chicago. Before reading this piece, I had not appreciated the role and the risk of Gura's strategy to apply the Second Amendment to the states by the privileges and immunities clause of the Fourteenth Amendment, nor how a fortuitously timed ruling of San Francisco's Ninth Circuit created-- for a time-- a split between it and the D.C. Circuit. Doherty also shows what clarification will be needed now that this right is established. If you have any appellate interest in gun law, this article is for you.

What Must a Child Witness Say to Convict of Indecency by Contact?

Jesus Cosio was convicted of four counts of indecency with a child by contact. He appealed to the Thirteenth Court of Appeals (Corpus Christi/Edinburg) in Case Number 13-08-00189-CR. John G. Hill, retired chief justice of Fort Worth's Second Court of Appeals, wrote an en banc opinion which was released Monday. The Edinburg Court reversed and remanded one of the charges with instructions to acquit Cosio and reversed and remanded the others for further proceedings. Justice Dori Contreras Garza joined the other members of the court in the acquittal, but not the reversal of the other charges.

The State alleged that an adult male touched a seven or eight year old girl's genitals. Two or three years after that, she is examined for physical evidence and none is found. At trial six or seven years later, she testified about four incidents:

• The man had touched her on the breast, her private part, and "mostly everywhere."(in 1999, 2000, or 2001)
  
• A week after the first incident—the one above— he touched her breasts and "mostly her whole body, mostly everything." (in 1999, 2000, or 2001)
  
• When she was eight years old, the man put his penis in her mouth, then in her vagina, and (in 2001, 2002, and 2003)
  
• When she was nine or ten, he touched her breasts and put his penis in her vagina. (in 2002, 2003, and 2004)
  

Was the first incident proved to legal and factual sufficiency? The second one?

 
The State tried Cosio as to four offenses:

• July 31, 2004, penetrating the complainant's mouth with his sex organ (aggravated child sexual assault);
  
• July 31, 2003, penetrating her sex organ with his (aggravated child sexual assault);
  
• July 31, 2004, touching part of her genitals (indecency with a child by contact); and
  
• July 31, 2003, touching part of her genitals (indecency with a child by contact).

The charge did not instruct the jury that they must be unanimous as to a single act to convict. Cosio did not object to the charge.

In order to determine if the evidence supporting a conviction is legally sufficient, the appellate court reviews all of the evidence in the light most favorable to the verdict and determines whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. To determine if the evidence is factually sufficient, the appellate court reviews all of the evidence in a neutral light. Then, the reviewing court determines whether the evidence supporting the verdict is so weak that the verdict is clearly wrong and manifestly unjust or whether the verdict is against the great weight and preponderance of the conflicting evidence.

 
For unobjected-to jury-charge error to be reversible:

• The error must really exist and;
  
• It must deprive the defendant of a valuable right.
  

The girl's testimony that the man touched her in her private part is sufficient for a conviction. Her saying that he touched her breasts and "mostly her whole body, mostly everything" does not.

 
To not require unanimity as to a single act is error. It deprived defendant of his valuable right of a unanimous jury verdict. He has a right to a retrial.  
 
The proof of the second incident is insufficient; acquittal is required.

 
The dissent would hold that:

1. there was no error in the jury charge;
   
2. even if there was error, that error was not preserved for review; and
   
3. even if Cosio was not required to preserve his error in order to obtain an egregious harm review, he did not suffer egregious harm.
   

The dissent appears to me to be a signal to the Court of Criminal Appeals that they should reverse the jury charge issue.


 

Bluebook Style: Citing to the Internet

Lawyers USA Online's article on Bluebook citation to the Internet is here.

From Saudi Arabia, Without Love

Another good historical argument in favor of the Eighth Amendment, and, also, for the Hippocratic Oath is here. Maybe it's also a good argument in favor of Matthew 5:38-39. Hat tip to Mr. Ariel Goldring's Free Market Mojo blog.

A Specific Offense Is Preferred over a General One.

United States District Judge in Norfolk, Virginia  Raymond A. Jackson dismissed a count of piracy in United States v. Said. At least one person in a skiff, a class of craft of which rowboats are the most familiar to us, fired on an American ship. That ship fired back, killing some of the people in the boat, and arresting the survivors. The defendants moved to dismiss the piracy count-- there were other lesser crimes alleged under the statute, such as attack to plunder a vessel. Piracy here requires  a violation of the law of nations. The defendants claimed that what the feds alleged was not piracy under the law of nations, that they didn't rob anybody at sea. They never got the chance. Judge Jackson gave a number of reasons for his decision, but the main one seems to be that to attack to plunder a vessel, which is clearly alleged, and which is a much less serious crime, shows Congress's intent that attack to plunder is not subsumed under piracy under the law of nations. The feds can give ten years max in this case, not life.
That a Clinton appointee would analyze a statute by the intent of an early-nineteenth century Congress was newsworthy. On a second look, it seems that the judge was just trying to insulate his decision against the Fourth Federal Circuit and the Supremes.

A Starbucks Is Not a Law Office.

Reading blogs is like panning for gold. You wash and shake and shift tons of rock and dirt to collect just a few very valuable nuggets. Out of hundreds of posts only a very few are wise. Miami lawyer for lawyers Brian Tannebaum's post in his My Law License blog entitled, "Who Are You Listening To?"  is 24 karat.
Real private practice lawyers put in full, busy days. They can't take weeks of vacation on top of other sets of weeks of vacation in a single summer, etc. Lawyers for white shoe firms collect hundreds of thousands of dollars every month, which they generally use to buy houses and furnishings that they never get to see because they live in their offices. I mean, some of them give up going home for days at a time. A full night's sleep? Forget it on a weeknight.
Communicating this to spouses is difficult-- maybe even impossible. And I do believe that it is possible to be in private practice and be happy and healthy, to sup with the family and to take a day off every week, and a month every year.
Many people with law degrees and law licenses are just pretending to be lawyers while they do nothing, or while they do some other business. Don't get practice management advice from such people.

When Scalia Trips

United States Supreme Court Justice Antonin Scalia tripped and fell outside a Rhode Island restaurant last Sunday. He was not hurt. It is not true that a spokesperson for the American Constitution Society commented, "We always thought that old man been trippin'."
Thanks to Howard Bashman's How Appealing  blog for showing the news item.

Know What the Good Persuasive Authority Is Where You Are

One way to tell a good appellate practitioner from a beginning is to find out what persuasive authority is most impressive to a particular court. Courts are supposed to be bound by the decisions of higher courts. They are supposed to either follow their own precedents or to explicitly overrule them. I propose to discuss the gap between theory and practice in later posts. Today, though, my subject is the idiosyncratic preferences of judges and courts for "extra" proof.
U.S. Supreme Court Justice Stephen Breyer likes out-of-country precedent. The Texas Supreme Court likes the Restatements of the Law. Gerry Spence told of a Wyoming appellate judge who was wont to quote from Justinian's Institutes. When you're are briefing a new court or a new judge, check bench books, check appellate practice courses for the jurisdiction, blogs, and-- best of all-- talk to one of the deans of the appellate court's bar if you can (Often they won't want to help you or won't have time to.).
The inspiration for this post came from J. Scott Key's post in his Georgia Criminal Appellate Law Blog

Elena Kagan Is In

She's the 112th justice and the 4th woman.

Some State Administrative Procedure Tolls Federal Habeas Deadline

Fifth Circuit justice Jerry E. Smith, writing for a panel including Justices Jacques Weiner and Jennifer Elrod, remanded trial court dismissals of habeas corpus petitions because Tex. Gov't Code section 501.0081(b)(1)-(2) bars a state habeas petition for at least 180 days after the filing of a required time-credit dispute-resolution request, which, in turn, tolls the Antiterrorism and Effective Death Penalty Act of 1996.

Against the Wanton Killing of Trees

In Lawyers USA Online, Jim Calloway of theOklahoma Bar Association Management Assistance Program makes a strong case that every single lawyer needs to switch from paper files to digital files. The only counter-argument I don't see his answering is that paper files cannot crash.

Pre-Certiorari Amicus Briefs Increasingly Important in Cases SCOTUS Takes

Tony Mauro and Marcia Coyle of the National Law Journal point out the increasing role of pre-certiorari amicus briefs to get argument in the United States Supreme Court.

Who's the Boss in a Criminal Defense Representation?

The Sixth Amendment to the United States Constitution as a practical matter guarantees criminal defendants the right to be represented by lawyers at their trials. In Faretta in Faretta v. California the defendant asked not to use a lawyer even though the trial judge insisted on one. The U.S. Supreme Court found the logic of this compelling. Then comes the kind of case exemplified by Scott Panetti who represented himself ramblingly while wearing a purple cowboy suit, frustrated because his trial subpoenas for the late John F. Kennedy, the pope, Anne Bancroft, and Jesus did not get his witnesses to court. University of Georgia law professor Erica J. Hashimoto argues in the latest issue of the Boston University Law Review-- the third of volume 90-- that proposed reforms of the rule in Faretta shouldn't take control of the defense from the defendant and give it all to the lawyer in the case.

SCOTUS Oral Argument Analysis

A statistical analysis of oral argument patterns as to SCOTUS justices is here.

Despite Border Search Exception, Warrant Needed for Laptop Analysis

United States District Court Judge Jeffrey S. White
granted a motion to suppress the search of a laptop, which was seized at a U.S. airport from someone returning on an international flight. This case signals what courts-- especially federal courts-- will hold to be reasonable expectations of privacy in the content of a computer brought into the United States.

One of the exceptions to the duty of government agents to get a warrant supported by probable cause before searching for evidence of crime is that of a border search. An entrant to a country cannot reasonably expect to have the right to sneak contraband in. Still, should customs be able— on their own— to examine all the contents of an entrant's laptop?

On January 27, 2009, customs randomly chose Hanson for a secondary baggage examination. He sweated, stuttered and asked why his luggage was being inspected. They found a bag of condoms and a bottle filled with pills that Hanson said were for male enhancement. Hanson said that he had been teaching English in Korea and that some of his students were as young as five years old. The customs officer looked at the images on the computer, and found one of a mud-covered, unclothed, post-pubescent, minor girl smiling into the camera, her genitals exposed. The officer seized the computer and sent it to a computer lab.

That lab examined it on February 5. Customs examined the lab report February 13, and decided to seize the computer then. It was examined again that June where it was demonstrated to contain more than a 1,000 images of kiddie porn. Judge White ruled that the January and February actions were unobjectionable; the June examination required a warrant.

A border search and a reasonable extension of it can provide the probable cause to support a warrant to search and seize property. The content of a person's laptop like this is protected.

This case is about six weeks old. I found out about it for the first time from Lawyers USA yesterday

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It's Clever and It's True

Law "Practice Tips from Professional Wrestling" is here.

Solictor General Practice with the U.S. Supreme Court

A key part of Supreme Court of the United States practice is knowing how to deal with the Solicitor General's office.Supreme Court Practice

Never Trusted that Rat Anyway

For some forms of pest control, the best professional for a job is a lawyer. Hat tip to Courthouse News Service.

As an Illness Subsides, the Remedy Is Less Necessary

Sam Glover has an interesting post in the Lawyerist on The Elements of Style by William Strunk, Jr. and E.B. White, great essayist of the mid-twentieth century (Can't help putting in a plug for "On a Florida Key"-- if there's a better essay in English, it doesn't jump to mind.). He was also the author of Charlotte's Web.
Strunk and White is starting to seem dated. One reason is that White was not a grammarian by profession. What I learned from the Elements of Style was shown to me to be wrong by Bryan Garner himself. The second reason is that White carried the day in his struggles against the bad writing of his time. It reminds me of the history of the doctrine of universal salvation. Universalism was at one time the ninth largest denomination in America, but it shriveled as its competitors learned that being hateful of and hopeless for the grand majority of the human race was bad for their business (When was the last time you heard a hellfire sermon?). The doctrine wasn't beaten- the competitors tacitly adopted it.
So it is with Strunk and White. Even bad writers today feel uncomfortable with sentences that begin "There is" or a lengthy, chewy mouthful of a sentence.
Strunk's instruction may have been enough for White. White was superlatively talented, even a genius-- maybe he didn't need any more guidance (Though I note that he was married to a brilliant editor.) For the rest of us, here at the beginning of the 21st Century, I recommend John R. Trimble's Writing with Style after decades of working with this stuff, its ideas forcibly knocked me upside the head. Before, I saw through a glass darkly, now I'm face to face with why and how White said what he did.

Nineteenth Edition of Blue Book Out

The Harvard Blue Book, indispensible aid to citation form, has attained its 19th edition. Get it or get the information in it before your next appellate proceeding.

Hard Times for Appellate Lawyers

From the Texas Lawyer: "There are but two types of error in Texas appellate courts: waived and
harmless."- Chuck Lanehart

A Court Can Come to a Conclusion Inconsistent with the Reasoning of a Majority

This fascinating post talks about how in a multiple opinion case, the judgment in the case may contradict the reasoning of a majority of the justices. Hat tip to the Akin Gump Strauss & Feld LLP SCOTUSblog.

Does Your Trial Record Preserve Your Evidence Exclusion Error?

Continuing to reflect on whether or not you should do your trial client's own appeal, there's something extra to think about if you want to complain about evidence's being excluded at trial. Most of the time, if that's the kind of error you want to bring forward, an offer of proof must be in the record.
Here's the situation: trial counsel offers some evidence; the opponent objects and is sustained by the judge. Generally, if the first lawyer wants to complain on appeal about the exclusion, that lawyer must, outside the presence of the jury, put what the testimony would be on the record. Usually this is done by simply asking the questions and taking the testimony as if the objection had not been made. If the objected-to evidence is simple, the testimony may be offered, if the trial judge allows it, as a narrative, though this is disfavored. After the evidence is presented in the offer of proof, opposing counsel may withdraw the objection or the trial judge might change the ruling sustaining the objection. The offer doesn't have to made right away, but it does have to be made before the case is submitted to the fact-finder.
Evidence exclusion is not a very strong objection, because the standard of review is whether the ruling is in the sound discretion of the court. We'll talk about this more in subsequent posts.

SCOTUS Issues More Summary Opinions Than Ever

Tony Mauro, Supreme Court reporter of the National Law Journal, reports that the Supreme Court of the United States issued 12 summary opinions this term-- the term that ended today. Chief Justice Roberts is apparently behind this. Summary dispositions avoid oral argument, which is time-consuming and expensive. Legislators appear to be critical of the high court's reduction of the number of cases it has accepted and resolved over the last few years.
Why should you care? In the past, the best practice for a petitioner for certiorari-- a person trying to get the court to hear a case-- was to minimize or ignore the merits and only argue at that stage why the court should take the case. But now for certain cases-- criminal cases where there is a statute or a strong precedent showing a clear, conspicuous error by the lower court-- a petitioner should show that, because on a summary disposition, that petition may be the only chance.

For the Love of Cats

Sometimes the struggle between the liberty of the poor on one hand, and order on the other, can be poignant. State of South Dakota v. Fifteen Impounded Cats is such a case. It pits Patricia Edwards against Pierre police officer named Jandt and the power of the State of South Dakota. Jandt found Patricia Edwards living in a car in a convenience store parking lot with fifteen cats. The officer impounded them. The State tried to get Jandt's action confirmed in Circuit Court and won. Edwards appealed without a lawyer. She lost in South Dakota's Supreme Court by a 3-2 vote. The majority opinion was written by Chief Justice David E. Gilbertson. He was joined by Justices John J. Konenkamp and Steven L. Zinter. Konenkamp wrote an additional concurrence joined by Zinter. Justice Glen A. Severson wrote a dissenting opinion joined by Justice Judith K. Meierhenry. The three issues in the case were: (1) whether Jandt violated Edwards's rights when Jandt impounded the cats; (2) whether there was sufficient evidence to sustain the order ratifying the impoundment of Edwards's cats; (3) Whether Edwards’s rights to due process of law were denied by the lack of adequate notice of the hearings in this matter. The majority said that Edwards had not preserved error as to the first and third issues and that there was no plain error. They also said that the impoundment was justified by exigent circumstances: that the cats blocked Edwards's view through her back window and almost caused an auto accident and that the car was dirty. They also said Edwards was not prejudiced by oral rather than written findings, that the circuit court's findings were not clearly erroneous. The dissent found that under the statute in this case- South Dakota's animal abuse or mistreatment law- the cop should have gotten a court order before impounding the cats and that the evidence supporting the judgment was insufficient because the cats were fine.

Won't Always Know It If They See It, But This Isn't It

A city government gets text pagers and service for some of its cops. The city asks— without a warrant—for a transcript of a cop’s texts. During work hours, few of the texts are work-related and some are sexually explicit. The city disciplines the cop. Did the provider violate the Stored Communications Act? Did the city or the provider violate the Fourth Amendment?
The Supreme Court of United States said no to both questions on June 17, 2010 in City of Ontario, California v. Quon, No. 08–1332. The court did not make any general rules as to what such violations might be.
Petitioner City of Ontario, California got pagers that could send and get texts from Arch Wireless. Arch charged Ontario a fixed price for a specified amount of use. More use would cost extra. Ontario let respondent Jeff Quon and other Ontario cops use the pagers. For several months, Arch charged extra for Quon’s use. Ontario asked for and got transcripts of some of Quon’s texts. Internal affairs investigated Quon. That officer redacted out Quon’s off-duty texts. Much of what remained was not work-related; some was sexually explicit. Ontario disciplined Quon. Quon and the people he was conversing with by text sued in federal district court for violation of the Fourth Amendment and the Stored Communications Act. Senior Federal District Judge Robert J. Timlin sent part of the case to trial. He appears to have ruled that if Ontario had audited to check if Quon had been wasting time, then that would have been improper. The jury okayed Ontario’s audit, finding that the audit was to make sure that the cops were not paying for work texts. The trial case resolved by judgment for Ontario and the other defendants. The Ninth Circuit reversed, holding that Ontario should have used less intrusive methods for the audit. It also held that Arch had violated the Stored Communications Act by giving Ontario the transcript.
In the Supreme Court Justice Kennedy wrote the opinion. All the other justices joined, except that Justice Scalia did not join part of the opinion. In a partial concurrence and concurrence in the judgment, he said that the question should not be whether the Fourth Amendment applies to messages on public employees’ employer-issued pagers, but whether it applies in general to such messages on employer-issued pagers. Justice Stevens concurred to highlight that the court did not decide whether the plurality opinion in O’Connor v. Ortega, 480 U.S.709 (1987) showed the right way to determine an employee’s reasonable expectation of privacy.
Do the texts of a public employee obtained without a warrant come in over objection? Not if the texts were gotten just to see if the employee is wasting time. Not if the seeking of them is over broad. Redaction of non-work-texts completely or in part is well advised. Of course, a warrant based on probable cause is a prosecutor’s best friend.

American Constitution Society's Method v. Federalist Society's Method

That the American Constitution Society holds votes among its members on policy positions, and the Federalist Society does not-- I am a member of the latter group-- says much about the two groups' respective processes for interpreting the constitution.
Hat tip to the Wall Street Journal law blog.

National Attention to Presiding Judge Sharon Keller

AP's story is here. Hat tip to Howard Bashman's How Appealing blog.

Inside Baseball or; The Education of Elena Kagan

Linda Greenhouse of the New York Times describes how United States Supreme Court Justices Harry A. Blackmun and Thurgood Marshall-- the latter on the advice of his law clerk Elena Kagan-- caused the court to decide DeShaney v. Winnebago County Social Services Department. The decision that resulted not only set a precedent that they would not have wanted, but a precedent that has stood as a bulwark against any tendency to reconsider this conservative decision.
Remember, if you go to an appellate court that chooses its cases-- that has discretionary jurisdiction-- such as the Supreme Court of the United States, the Texas Supreme Court or the Texas Court of Criminal Appeals, you may be able to forecast that if such a court takes your case, it may not only decide against you, but that its decision against you will become an ironclad precedent against any future client you might try to help. I bet that Justice Kagan will be a lot more sophisticated on this point than Justices Brennan, Thurgood Marshall and Blackmun were.