Good Habits Make Better Work

This is true. I am more productive if I shave in the morning for a writing day at the office.
A good book for improving writing productivity is Becoming a Writer by Dorothea Brande.You can buy it if you like (If you buy it here, I get a cut.).

U.S. Senate Judiciary Committee Wants More Federal Court Proceedings Televised

The Associated Press's story is here.

Federal Sentencing Commission Proposes Rule Changes

You can find them here. They won't go into effect until November 1, 2010. Seems like the main practical point will be to made alternate sentencing more available.

South Texas Law Professor Richard Graving Dies

Just got word that Professor Richard Graving of South Texas College of Law in Houston, one of my old legal research and writing professors, passed away recently. A witty polyglot (in a hypothetical for an assignment a party was named Payaso and Bobo, Spanish for clown and fool), I remember that he introduced me to Lord Denning's writings. He often took his breakfast at the New York Bagel Shop, an invariable sign of good taste and judgment. Sorry to see him go. R.I.P.

Adding “Without Prejudice” To Income Tax Return Jurats Does Not Unmake Returns for Aiding and Abetting Charges

    Fifth Circuit Judge Jennifer Walker Elrod wrote an opinion for a panel including Catharina Haynes, and senior circuit judge Harold R. DeMoss, Jr. holding that when a person signs a federal income tax return adding the words "without prejudice," the tax preparer can't beat a charge of aiding and assisting in the preparation of false tax returns because the additional language rendered the signed documents not tax returns.

    Richard Duane Davis prepared tax returns for Madison Lee Oden, telling him to sign the returns with the added words "without prejudice." Was that the same as Oden's not signing at all?

• A federal income tax return "shall contain or be verified by awritten declaration that it is made under penalties of perjury."
  
• When a man crossed out the jurat on his return and added a complaint that the return violated the Fifth Amendment, he was held to have filed what purported to be" a tax return when such return
  

  (1) did not contain information on which the substantial correctness of the self-assessment may be judged, and
  

  (2) was based on a frivolous position.
  

• Where a taxpayer filed a complete Form 1040 and added the phrase "signed involuntarily under penalty of statutory punishment" under the jurat, this return was "complete and accurate."
  
• A taxpayer's attachment to his signature of a specific disclaimer of liability invalidated his Form 1040.
  
• A document which on its face plausibly purports to be in compliance, and which is signed by the taxpayer, is a return despite its inaccuracies.
  

Here it's not clear what "without prejudice" means. The IRS should be entitled to construe alterations of the jurat against the taxpayer, at least when there is any doubt. Even if the added language rendered the Forms 1040 invalid as "tax returns," Davis still would have aided in the preparation or presentation of a false return, affidavit, claim or other document, which is a crime. The Court won't require the I.R.S. to engage in guessing games to determine what disclaimers like this one mean. To require such would drastically hinder the I.R.S.'s ability to process returns efficiently.

It Wasn't an Obscene Gesture, At Least Not in Part of Connecticut

A Connecticut trial court held that giving a state trooper "the finger" wasn't about sex, so it wouldn't support an obscenity conviction.

“I shall not today attempt further to define the kinds of material I understand to be embraced within that shorthand description ["hard-core pornography"]; and perhaps I could never succeed in intelligibly doing so. But I know it when I see it, and the motion picture involved in this case is not that.”

— Justice Potter Stewart, concurring opinion in Jacobellis v. Ohio, 378 U.S. 184 (1964), regarding possible obscenity in The Lovers.

You Gotta Serve Somebody, Even if You're a Supreme Court Justice

The blog of the Legal Times recounts an oral argument at the Supreme Court of the United States in which Justice Antonin Scalia pins Justice Stephen Breyer on a domestic matter.

No Good Deed Goes Unpunished- Enhancement Judgment Not Final on Its Face Occasions Partial Remand

    Texarkana Texas's Sixth Court of Appeals
reversed and remanded the punishment hearing in Cornel G. Williams v. State of Texas because one of the enhancement judgments showed that it had been appealed. Justices Jack Carter (D) and Bailey C. Moseley (R) were the majority. Chief Justice Josh R. Morriss, III (R) dissented. Submitted on February 10, 2010, the Court released its opinion March 31 of that year.

Williams appealed his conviction for possessing more than four grams of a controlled substance with intent to deliver. The Longview jury enhanced his punishment to life imprisonment— which in Texas state law is 35 years until the convict's first chance to get parole— because of his prior convictions. The State alleged his priors in the indictment. He pleaded "true" to them. The State introduced, without objection from Williams, certified copies of two prior convictions. The opinion says that Williams argued on appeal that "the State's notice" contained "no allegations regarding the sequence of the convictions" and "no mention of when the offenses occurred or when the convictions became final." The Court held that "the documentary evidence revealed that an appeal had been prosecuted from one of those convictions, yet there was no evidence presented to show that the conviction had become final." The evidence was, therefore, legally insufficient. The Court of Appeals cites Ex parte Rich, 194 S.W.3d 508 (Tex. Crim. App. 2006) (orig. proceeding) that Williams's plea of "true" and his failure to object to the judgment that did not show on its face that it was final does not waive this error. Rich's sentence had been enhanced even though one of the enhancing judgments had been proved to have been reduced to a misdemeanor. The Court of Appeals does not state unequivocally state that the judgment in Williams's case was not final— I think they would have, if that judgment had not in fact been final. In Rich, the illegality of his sentence was manifest: a misdemeanor cannot enhance a felony sentence, even if the defendant is willing to suffer such an enhancement. In the absence of perfect proof that an enhancement is final, I believe that the defendant's assent that the enhancement is final should conclude the matter under present Texas law.

The two older justices— the ones not likely facing reelection— decided that 4.83 grams of coke shouldn't turn a 180 day sentence into life.

Appellate Lawyers Have to Read

The story of Michael Swango, the murderous medical doctor of James B. Stewart's Blind Eye continues with Swango's indictment in the Eastern District of New York.

Habeas Upheld for Ineffective Assistance of Appellate Counsel

The United States Second Circuit Court of Appeals upheld the granting of a writ of habeas corpus and a new trial Friday, April 2, 2010 to defendant Racky Ramfair because his appellate counsel was ineffective in assisting him.
Robert D. Sack, a Clinton appointee, wrote the opinion for a panel that also included senior-- that is, retired-- judges Guido Calabresi, famed Yale legal scholar who is also a Clinton appointee, and former chief judge Ralph K. Winter, Jr., a Reagan appointee.
Ramfair was accused of robbing cabdrivers in the New York City borough of Queens. His appointed lawyer Jonathan D. Latimer, III, was present at a lineup which identified Ramfair. It is undisputed that Latimer was at the lineup, but he does not remember if he objected then. Some of the men in the lineup had facial hair; some did not. The police had the ones who did not to rub their faces with carbon paper for the viewing.
The first trial resulted in a mistrial when Ramfair was assaulted while in jail. He had a second mistrial when a juror had to be hospitalized during the trial. The main issue at that trial was whether the robbery victims had said that Ramfair was the man who attacked them because he looked different from the other men in the lineup. At the third trial, a police witness revealed that Latimer had been present at the lineup and testified that he had not objected. Latimer asked the court for permission to testify to dispute that testimony. The judge overruled him. Latimer moved for a mistrial. It was also overruled. In closing argument, the prosecutor emphasized that Latimer had been at the lineup and of the testimony that Latimer had not objected then.
Ramchair was convicted, and ended up getting 10 to 20 years in prison. He had different appointed counsel on appeal. She brought two issues. First, that the trial violated double jeopardy. Second, that Latimer should have been allowed to testify.
The Appellate Division of the New York Supreme Court (equivalent to Texas's state courts of appeal) affirmed. It said that Latimer should have sought to withdraw. If he had, they said, Ramchair could have had a new, different lawyer and Latimer would have been just a witness instead of being both a witness and trial counsel.As a practical matter, this would almost certainly have required a fourth trial.
Making a long story short, the federal trial court held more proceedings in this case between June 30, 2009 and February 12, 2010, resulting in Friday's ruling.
Here are some observations about this. First, this is mostly a panel of retired judges. Federal judges are more open to do unpopular things-- like grant habeas relief-- than state judges are. Senior federal judges are even more likely to. Second, if the lineup was unduly suggestive, Ramchair might be doing time for a crime that he did not commit. Such a case is much more appealing to a federal habeas judge or an appellate judge than a due-process-type challenge made by a guilty person. Third, Ramchair has served approximately thirteen years of a 10-to-20 year sentence. If he was improperly convicted, he's done about as much time as he would have done had he been properly convicted. When I saw oral argument in the Fifth Circuit, I noticed the electric emotional effect such an argument on federals appeals judges in a case such as that. Fourth, conventional wisdom about how many issues an appellate lawyer should put in a brief is that one should not put in more than two or three (in an extreme case, four) if you really want the appellate court to rule in your favor. Appeals court judges don't believe that a trial could have more than a few important errors, and lengthy briefs make their hearts sink. The only time one wants many issues should be put in is when the purpose of a brief is to preserve error in some proceeding likely far-off in time. For example, a criminal defense lawyer may reasonably that the only court likely to rule for a defendant is a federal one. To get to that federal court properly, one has to exhaust one's state remedies and that might well take years. There is a good chance that the federal habeas lawyer will not be the one doing the original appeal to the trial court. The world might be very different then. That might be one scenario; the other is defensive law practice. Complain about everything, all the time, to be ready when the ineffective assistance of counsel claim is made or when the grievance is filed.