About Me

My photo

Brenda's Husband, Joe's Dad and Bonny's Brother.

Saturday, February 19, 2011

Federal Relief for State Refusal of Parole

The United States Supreme Court, in a per curiam opinion, overruled the Ninth Circuit's requiring California to consider again granting parole for a couple of prisoners. They said federal habeas relief is not available for an error of state law. Also the federal Due Process Clause does not require proper application of California's evidentiary standard for denying parole.

Justice Ginsberg concurred. She implied— contrary to the main opinion— that the principles controlling revocation of good-time credits should control in a case like this. The Ninth Circuit, though, had precedent that the prisoners didn't have federal rights to correct an error of California state law by California.

If There's No Dispute, Your Appeal Will Be Moot

One of the excuses that appellate judges use to not decide a case is to hold that a case is moot .A matter is moot if further legal proceedings with regard to it can have no effect, or events have placed it beyond the reach of the law.
There are three major exceptions to this mootness rule. These are cases of "voluntary cessation" on the part of the defendant; questions that are "capable of repetition, yet evading review"; and questions involving class actions where the named party ceases to represent the class. Most commonly, a case is held to be moot when the status of a party is disputed and that party dies. The death of a defendant in a criminal case or the death of a person objecting to the terms of a divorce moots those cases.

Friday, February 11, 2011

Not Just Anybody Can Complain About a Violation

To be in a lawsuit, a party must be the kind that has a right to be in a lawsuit. One can't bring a lawsuit against a government because one is a citizen and one can hardly ever bring a suit against the government because one is a taxpayer. A plaintiff cannot sue unless it is the kind of entity that can sue and who has suffered the kind of wrong that law gives a right to sue over. Whether a person can sue in a particular situation is whether or not that person has standing. Careful lawyers check for this when preparing suits.

Four Amendment Protects Vehicle Computer Data

A pedestrian had been killed by being hit by an SUV. The driver left the scene in it.  The police got it and wanted to download data from its sensing and diagnostic module. California's appeals court for San Jose held that the download required a warrant or an exception to the warrant requirement, which the police did not have and reversed the trial courts conviction for leaving the scene of an accident after having committed vehicular manslaughter and for personally inflicting great bodily injury on the victim. The defendant's convictions for:
  • failure to stop at an accident resulting in death or serious bodily injury,
  • driving under the influence of alcohol and causing injury, and
  • driving with a blood alcohol level of at least 0.08 and causing injury
were all upheld.

Thursday, February 3, 2011

Preservation of Evidence Error

If evidence is excluded by the judge, and the party offering the evidence thinks that the judge erred, that party has to make an offer of proof to preserve the error. The party must have the desired evidence presented to the court outside of the presence of the court. This offer is usually made by questioning the witness. In the rare cases in which the desired evidence can clearly be given by narrative, it may be so given. The offer of proof must be given before the close of the evidence. The idea is that the offer of proof may convince the judge that evidence should be allowed to be presented to the jury.

A Receipt Is a Commercial Instrument

A faked receipt was held to be a forged commercial instrument by a plurality of the Texas Court of Criminal Appeals, which resulted in a conviction for a state jail felony. Judge Tom Price wrote the opinion, which was joined by Judges Michael E. Keasler, Barbara Parker Hervey, and Cathy Cochran. Judge Lawrence E. Meyers concurred, arguing that the receipt was clearly a forged commercial instrument-- the majority had to have recourse to legislative intent to get to its conclusion. Presiding Judge Sharon Keller dissented, joined by Judge Cheryl Johnson. A receipt is not a commercial instrument, they said. According to them, the most that the defendant could get is misdemeanor forgery. Judge Keller for the defense, it takes my breath away.