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.