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

Friday, May 28, 2010

Best Review of WestlawNext I've Found Yet

The best review of WestlawNext I've found yet is here. Hat tip to Legal Research Plus blog.

What You Might Miss When You Consult the United States Code

The Legal Research Plus Blog reminds us of potential and actual problems when using the United States Code for research.
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.

The Chief Justice, That Centrist, and Also Ninth Circuit, Most Reviewed Not Most Reversed

Supreme Court of the United States statistics have been updated here from SCOTUSWiki (Thanks, folks.).
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.

Nice Work If You Can Get It

The Associated Press reports that continues to work after he took senior status (You might see him at oral argument on the First Circuit.).
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'

Savvy appellate lawyers know that final courts like the Supreme Court of the United States and the Supreme Court of Texas and the Court of Criminal Appeals of Texas have some intermediate appellate courts that they are more willing to reverse than others. For the Supreme Court of the United States, the Ninth Circuit is the intermediate court they are most likely to reverse. Ninth Circuit parties unhappy with the result in their cases, especially those whose result would be unpleasing to the Chief Justice and Justices Scalia, Kennedy, Thomas, and Alito have a better chance of getting relief than unhappy people from other courts of appeal.
The post explaining why this is not very important as to SCOTUS is the post just before this one.

Generally, Don't Take Your Case to the United States Supreme Court Unless You Have To

7,738 cases were filed in the Supreme Court of the United States in their 2008 term, which begins in October of that year. Out of those, the Court held argument on 87. Of those, they disposed of 83. 74 of those dispositions were by signed opinions, including per curiam opinions signed by no individual justice, and the judgments in cases where the trial is in the Supreme Court. Cases the Supreme Court disposes of may be either affirmed or reversed. That is, a party could go through the whole laboriousness and expense of getting a case into SCOTUS, getting it briefed, arguing it and ending up with an affirmance making the ruling against the party in the party's case the law of United States of America.
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

It'll Likely Be a Good Complaint Some Day, But No Time Soon

Fifth Circuit Judge Fortunado P. Benevides, writing for a panel including Carl E. Stewart and Leslie Southwick, reinforced the circuit's view that a district court may
impose a federal sentence that runs consecutively to an undischarged state
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

Unfair to Staten Island

If Elena Kagan is confirmed, she will be the Supreme Court justice from Manhattan. Antonin Scalia is from Queens. Ruth Bader Ginsberg is from Brooklyn. Sonia Sotomayor is from The Bronx. This is unfair to Staten Island.
Hat tip to Jonathan H. Adler of The Volokh Conspiracy.

SCOTUS Nomination Diversity

The president has not nominated anyone to the Supreme Court of the United States who was not an Ivy League female, unmarried and childless, from New York City, New York, who studied in Princeton's history department.
Hat tip to Mises Economics Blog.

Tuesday, May 11, 2010

Defendant Held to Have Opened the Door for State’s Plea-Bargain-Discussion Question

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

Supreme Court of Texas Amends Electronic Document Order

Here is the Amendment. The amendment emphasizes the number of paper documents that must still be filed in a SCOTX case. It requires that attorneys in a SCOTX case must give each other their email addresses and must register for Casemail about their case. Such attorneys must email opposing counsel their edocs. Thanks to D. Todd Smith of Texas Appellate Law Blog for the update.

Television Is Not Law School

Miranda v. Arizona, 384 U.S. 436 (1966) is commonly misunderstood. The statement of the accused may be used at trial so long as the accused was not in custody and also not protected from waiving the right to remain silent. This rule is subject to exceptions and the effect of this rule may be changed by other rules. The point I am trying to make is that to have a Miranda violation, you have to have the accused being (1)questioned while in (2)custody. If a person runs up to a strange cop on the beat and the cop asks "What's the matter with you? Did you do something wrong?" and the cop does nothing to indicate that the person has to stay to talk, and the person confesses to a crime, then that what the person says can be used at trial. Why? No custody. Another hypothetical: a person is arrested for overdue traffic tickets. That person speaks no English and none of the arresting officers speak the arrestee's language. They put the arrestee in a cell while they look for a translator. While waiting in jail, unable to communicate with anyone, he uses toilet paper to write out a murder confession in the language that none of the cops can figure out. When a translator is eventually found, Miranda does not keep this confession from being used at trial. Why? No questioning.
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.

When You Are Away from Home and Need a Texas Criminal Jury Charge in a Hurry

Harris County has criminal jury charges on the internet. So if you were in a tight but could get to the internet you could access them from anywhere you could get on the net.

Wednesday, May 5, 2010

Chicago Manual of Style 16th Edition Comes Out September 1, 2010

This book is a necessity for properly cited legal writing. If you can put off getting your manual until after September 1, 2010. If you can't, I get a cut if you buy your 15th edition .

Law Enforcement Questioning Strategy re Shahzad

This post would be particularly interesting for criminal law amateurs. I'd feel better if the best law enforcement interviewer I have ever personally worked with-- Susan Maxwell of the 23d District Court's District Attorney's Office-- were working it.

Tuesday, May 4, 2010

Texas Court of Criminal Appeals Says State May Limit Corporate Political Contributions

Texas’s highest noncivil tribunal unanimously decided that the ban on political contributions was constitutional. Defendants James W. Ellis and John D. Colyandro challenged the money-laundering statute— that it doesn’t apply to checks— by a pretrial writ of habeas corpus. The CCA held that the challenge to the latter statute was premature.
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.

Wisdom from the Master

Ten legal writing tips from Bryan Garner are here.

An Interesting Post on State Court Standards of Review of the Right to Bear Arms

A comparative review of state court standards of review might shed light on individual
state's standards, such as Texas's. A blog post about that is here.