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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.

Tuesday, November 23, 2010

No, It's Not Just Your Imagination

Opinions of the Supreme Court of the United States are getting longer.

Monday, November 22, 2010

A Mandatory Minimum Sentence Is Added to Another Mandatory Minimum in the Gun Control Act of 1968

When the legislature rewrites a statute to overrule a high court's interpretation of that statute that the legislature deems too lenient, that rewritten statute will be interpreted to toughen rather than to weaken the law. That is how all eight justices on the Supreme Court--Justice Kagen recused herself-- resolved a split between circuits to interpret "An Act [t]o throttle criminal use of guns," known informally as the Bailey Fix Act, because it was intended to overrule Bailey v. United States, 515 U.S. 137 (1995). Bailey's conviction for using and carrying a gun in relation to a drug trafficking crime was overruled. The weapon had been locked in the trunk of the car Bailey was arrested in.

Sunday, November 21, 2010

How Trial Lawyers Should Object

Trial lawyers should object until the court denies them relief.
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

"Incurable" or "Plain" Error

We've been talking about preservation of error: the doctrine that an appellate court will generally not overrule a trial court's ruling if the complaining party did not let the trial judge know at the time-- usually by objecting-- that the party thinks that the ruling was wrong. We've talked about one exception to this rule: that objecting that a trial court or a lower appellate court did not have jurisdiction over a matter may be objected to at any time. An objection to the present lack of jurisdiction over subject matter in the appeals court that one is before at the time does not need to be made to preserve error.
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.

Friday, November 5, 2010

Subject Matter Jurisdiction Preservation of Error

I was told that it happened in Chicago, but the story is apocryphal. An obstreperous drunk disturbs the morning docket at the jail. The judge gets sufficiently angry to have the guy brought before him and he holds a quick trial which results in the defendant's getting the death penalty.
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

How Sharon Keller's Case Might Not Be Over

I don't know of a place where you can find this for free, but the Texas Lawyer has an article clearly explaining how Texas Court of Criminal Appeals Presiding Judge Sharon Keller's judicial misconduct case is not over yet. The meaty piece--great work by TL Senior Reporter Mary Alice Robbins--in no way lends itself to summary. The Commission's examiner--read "prosecutor"--basically argues that since the appellate court found the law to be different than the lower court thought, the lower court should have the benefit of that correction. The Commission might want to vote differently after the legal error was corrected.