Friday, May 28, 2010
United States Code Annotated is not the same thing; it's a West product. As the title indicates, it's annotated. The Blue Book calls for all federal statutes that can be cited to the Code to be cited to it. An appellate lawyer needs to have or use a copy of the Code.
First surprise: the Chief Justice was in the majority more often than Justice Kennedy; the Chief Justice appears to be working for more agreement between justices. Second surprise: though the Supremes reviewed more decisions from the Ninth Circuit, they reversed a smaller fraction of them than they did of the cases they took from the Second, Fourth, Fifth, Sixth, Seventh and Eleventh Circuits.
Ruth Bader Ginsberg appears to me to be a very nice lady, but I don't think you can blame a fellow for preferring to hang out with Meryl Streep (See the photo with the AP story.).
Wednesday, May 19, 2010
The Supreme Court of the United States Is More Likely to Overturn a Ninth Circuit Decision Than Other Circuits'
The post explaining why this is not very important as to SCOTUS is the post just before this one.
So, if you or your client have the expectation that the Supremes are going to right the wrong in your United States Circuit or highest state court case, that expectation is practically always misplaced. Petitions for certiorari to the U.S. Supreme Court should practically always be reserved for situations in which the judgment and law of the case is utterly intolerable for your client or in which delay of finality of the ruling complained of is in your client's interest.
I'm speaking here of a necessary but not sufficient condition for advising a petition for cert. That is, advice to prepare and file a cert. petition should only be given when the legal and factual grounds exist. I hope to write more about those legal grounds in later blog posts. Be aware, and make sure that your client is aware, that more than 98 out of every 100 filings are never taken up at all.
Saturday, May 15, 2010
impose a federal sentence that runs consecutively to an undischarged state
sentence. The Eighth, Tenth and Eleventh Circuits agree with the Fives. The government, along with the Second, Fourth, Sixth, Seventh, and Ninth Circuits, take the opposite side. Last year Fifth Circuit Judges Priscilla Owen and James L. Dennis even indicated that they didn't like the ruling. A circuit split like this may well interest the Supreme Court of the United States.
Wednesday, May 12, 2010
Hat tip to Jonathan H. Adler of The Volokh Conspiracy.
Hat tip to Mises Economics Blog.
Tuesday, May 11, 2010
The Texas Court of Criminal Appeals overturned a decision of Amarillo's Seventh Court of Appeals. Amarillo reversed and remanded defendant Troy A. Bowley's felony Driving While Intoxicated conviction. Amarillo did it because trial judge Cecil G. Puryear did not grant Bowley's motion for a jury instruction to disregard a State's question about plea-bargain-discussions.
Bowley admitted that he was guilty in his prior cases. He said that he had pleaded not guilty in the case he was being tried for because he was, in fact, not guilty. The State asked on cross-examination: "Could it be that it's because we couldn't agree on a plea agreement that you preferred?" The defense objected. The court sustained. The defense then asked for a jury instruction to disregard the improper question. The trial court denied.
Amarillo disagreed. The CCA held that any harm was Bowley's fault. He'd opened the door about why he'd made the prior pleas.
Judge Michael E. Keasler wrote the majority opinion. Other majority judges were Presiding Judge Sharon Keller and Judges Paul Womack, Barbara Parker Hervey and Cathy Cochran.
Judge Tom Price wrote a dissent that Judges Laurence E. Meyers, Cheryl Johnson and Charles R. Holcombe joined. It said that the trial judge sustained Bowley's general objection without indicating what his legal basis was. Bowley's brief assumed that his objection was on Texas Rule of Evidence 410(4). Even though the objectionable question would not have elicited a particular statement of his, it would have told the jury that he had been involved in plea negotiations. Amarillo didn't consider this issue. It had said that the question might have been proper under TRE 403. Price didn't think that was the right issue, though he couldn't tell from the record. If the issue had been 403, and that ruling was right, 410(4) would have required reversal and remand to Amarillo instead of rendition.
Judge Holcombe filed a dissent joined by Judges Meyers, Price and Johnson. It said the State's question was objectionable even if Bowley had opened the door. Rule 410 would have trumped Rule 403.
Additionally, Judge Johnson wrote an additional lone dissent. She would have held that the State's use of prior DWIs here conflicted with
Phifer v. State, 787 S.W.2d 395 (Tex. Crim. App. 1990). She said Penal Code § 49.09(g) "may be a validation of Phifer (emphasis mine)." Furthermore, Phillips v. State, 992 S.W.2d 491 (Tex. Crim. App. 1999) "did not overrule Phifer." Judge Johnson is the only lawyer I know or have heard of who does not believe that § 49.09(g) is the legislature's overruling of Phifer. And that Phillips proves that.
Bowley's lawyer preserved this point properly. (From time to time the CCA has required defense counsel to make very detailed objections so as to put appeals courts on notice of the exact objection. If Bowley's lawyer had said, "Your honor, objection, statement made in the course of plea discussions," Bowley would have been no better off.) To preserve an evidence issue, one must:
- object to the evidence.
- If the trial judge sustains your objection, then ask for an instruction for the jury to disregard.
- If that instruction is given, move for a mistrial.
Ambitious defense lawyers will likely use Judge Johnson's dissent as the basis for a motion to quash, arguing that the only reason it didn't fly in Bowley was that Bowley had not properly preserved the error. Careful trial judges will learn from Judge Puryear to grant defendants their motions to disregard to save the system from a world of headaches even though they will likely be vindicated in the end. Were I prosecuting such a case, I would be inclined to:
- ask a group of questions confirming that there was one bad piece of evidence after another in the oldest case,
- then confirming that the defendant took a plea in the case,
- confirm the punishment, and
- repeat for each prior case.
- Lastly, I would go through each of the damning pieces of evidence in the trial case, then ask, "You've decided to go for a jury in this case, huh?"
Saturday, May 8, 2010
One more thing- Miranda warnings are not required for videos of the accused to be introduced showing that defendant couldn't walk or hit somebody. It's not needed for handwriting samples. It's not the reason warrants are sometimes required for blood samples. Thanks for Jamie Spencer of the Austin Criminal Defense Lawyer blog for pointing out the broad popular misunderstanding of Miranda.
Wednesday, May 5, 2010
Tuesday, May 4, 2010
When the Supreme Court of the United States considers whether campaign contributions and independent expenditures on behalf of a candidate are constitutional to regulate, it treats them differently. That court is willing to regulate the contributions but not those independent expenditures. The first is a regulation of the way money can be given to candidates; the latter is held to be regulation of political speech, the main thing that the first amendment's speech protection is supposed to protect. In Citizens United v. Federal Election Commission, the court held that the government may regulate corporate political speech through disclaimer and disclosure requirements, but it may not suppress that speech altogether.
SCOTUS said that corporations are entitled to first amendment protection because they are simply "associations of individuals." If one cannot limit an individual's independent expenditure, then one cannot limit expenditures made by associations of individuals. However, if one can limit an individual's contributions, as in Buckley v. Valeo, then laws can be enacted to prevent associations of individuals from being used to circumvent those contribution limits, like Texas's law. Moreover, corporations in Texas have many ways to engage in political speech: it's not like they're gagged. Citizens United is not implicated by Texas's regulations of the forms for corporations' contributions.
Generally,pretrial habeas cannot be used to attack a charging instrument's sufficiency nor can it be used to construe the meaning and application of the statute defining the offense. It can be used to advance a claim that a statute is unconstitutional on its face, but not that a statute is unconstitutional only because of how it is applied. This is because only a trial can show the facts of how the statute is applied. It's too early.
state's standards, such as Texas's. A blog post about that is here.