Tuesday, December 21, 2010
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.
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.
Monday, December 20, 2010
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.
Monday, December 13, 2010
Thursday, December 2, 2010
Tuesday, November 23, 2010
Monday, November 22, 2010
Sunday, November 21, 2010
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.
Monday, November 15, 2010
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.
Wednesday, November 10, 2010
Friday, November 5, 2010
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.
Tuesday, November 2, 2010
Thursday, October 28, 2010
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.
Hat tip to Lawyers USA Online for this case.
Friday, October 22, 2010
Tuesday, October 19, 2010
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
Monday, October 11, 2010
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.
Wednesday, October 6, 2010
Monday, October 4, 2010
Wednesday, September 29, 2010
Tuesday, September 28, 2010
Friday, September 24, 2010
Friday, September 17, 2010
Friday, September 10, 2010
- 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.
Wednesday, September 8, 2010
Monday, September 6, 2010
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
Wednesday, September 1, 2010
Saturday, August 28, 2010
Friday, August 27, 2010
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).
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:
- there was no error in the jury charge;
- even if there was error, that error was not preserved for review; and
- even if Cosio was not required to preserve his error in order to obtain an egregious harm review, he did not suffer egregious harm.
Wednesday, August 25, 2010
Sunday, August 22, 2010
Thursday, August 19, 2010
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.
Tuesday, August 17, 2010
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.
Tuesday, August 10, 2010
Thanks to Howard Bashman's How Appealing blog for showing the news item.
Friday, August 6, 2010
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
Thursday, July 29, 2010
Wednesday, July 28, 2010
Friday, July 23, 2010
Tuesday, July 20, 2010
Friday, July 16, 2010
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.
Thursday, July 15, 2010
Thursday, July 8, 2010
Wednesday, July 7, 2010
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.
Tuesday, July 6, 2010
Friday, July 2, 2010
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.
Wednesday, June 30, 2010
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.
Sunday, June 27, 2010
Wednesday, June 23, 2010
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.
Saturday, June 19, 2010
Hat tip to the Wall Street Journal law blog.
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.