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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, September 25, 2012

On the Virtues of Brevity

" . . . [B]revity is the soul of wit,/And tediousness the limbs and outward flourishes . . ."- William Shakespeare, Hamlet, act 2, sc. 2
The capital defendant convicted in the American state of Georgia was up in the 11th Circuit federal court of appeals. One circuit judge--Ed Carnes-- wrote a 105-page opinion holding that although trial counsel's performance was deficient-- his lead defense lawyer drank a quart of vodka every night of the trial while also preparing to be sued, criminally prosecuted, and disbarred for stealing client funds-- that deficient performance did not produce an unjust result, and the conviction and sentence should be upheld. Another circuit judge on the panel--Rosemary Barkett--dissented: trial counsel's performance was so bad, the defendant was entitled to a do-over.
But what is most interesting in this case for our purposes is that the third circuit judge--senior judge and former chief judge Mr. J.L. Edmondson (a photo of Chief Circuit Judge Edmondson is above, with the other chief  judges of the other federal circuits, etc. of the federal courts)-- concurred with Carnes instead of joining the longer opinion because 105 was just too damned many pages, and likely would lead to confusion about which parts of the opinion were binding precedent and which parts non-binding dicta and further might have error hidden in its near-interminableness.
In defense of Circuit Judge Carnes, to determine whether or not trial counsel's performance fell so low that it was practically the same as no representation at all is a fact-specific determination to be made on the record as a whole. If that's the case, the advocates and the opinion writer seem to need to go through the whole record page by page and line by line.
However, the story of this case is a cautionary tale about the unpersuasiveness of long, legal documents, and, probably more importantly, the unlikelihood that they will be read (For the amount of time suitable for the preparation of a blog post, even I, leisured as I am, will not take the time to read the whole long opinion I am writing about here.). As to the relationship between unpersuasiveness and length, there are some documents of which great length in itself belies the argument within it. The classic examples are: a motion for summary judgment and a response to a motion for summary judgment. I have seen motions for summary judgment that are more than a hundred pages long, but think about it. A motion for summary judgment states that there is some point that has been established as a matter of law or some necessary point that, after reasonable time for discovery, has had no evidence at all adduced in its favor. Surely, one could state the elements of the cause of action, state which one is proved or utterly lacks evidentiary support and ask for judgment. If it takes a hundred pages to make such a claim, then it is highly likely that the point about which the motion is made is undecided and must be tried. A response works the same way, in mirror image. A respondent shows how the point in the motion is controversial or unproved. As to most motions, shortness is better even where it may not be absolutely required. Edmondson's comment shows that a long document is inherently suspicious--the longer it is, the more likely it is to hide mischief. A short motion or response is welcome in the hand and leaves the reader confident that, if it is correct, the reader will be able to find that out, just by examining it.
OK, but what is a writer to do when faced with briefs or motions or opinions as to the record as whole or balancing tests which appear to require copious scribation? It's tough, but there are a few tricks to help. I'll talk about one here and that is the use of tables or lists. In the case of this opinion, it might take too long to manageably list all the acts or omissions that might constitute ineffective assistance of counsel, in which case one would make up different short lists for each part of the trial, in a format that brings together alleged acts or omissions that:
  1.  were, in fact, not wrong; or
  2. did not cause an improper verdict or judgment.
At the end, one would have to write about the trial as a whole, but that's probably not more than a single paragraph.

Remember Matthew 6:7: "But when ye pray, use not vain repetitions, as the heathen do: for they think that they shall be heard for their much speaking." For about 2000 years, it's been known that long-windedness is bad advocacy whether addressing God or judges who are subject to the temptation to think that the power they wield is divine.
The case is Robert Wayne Holsey v. Warden, Georgia Diagnostic Prison,  No. 09-14257, (11th Cir. Sept. 13, 2012, no cert. h.).
This case was originally reported on by Bill Rankin of the Atlanta Journal-Constitution, which was in turn spotted in by Howard J. Bashman in his How Appealing blog, which was, in turn, picked up by Debra Cassens Weiss in the electronic version of the American Bar Association Journal.

Friday, September 14, 2012

Dangers of a Partial Summary Judgment

Prior posts of this blog have discussed that, except for certain statutory and possibly for some federal constitutional exceptions, only final judgments can be appealed in Texas practice. A real danger of summary judgment appellate practice is that a judgment, particularly a summary judgment, may appear to be final when it is not.
To explain why, let's start with a lawsuit with only one plaintiff, only one defendant and only one cause of action (As a practical point of plaintiff's trial advocacy, this normally would be a horrible idea. A wrong can normally be expressed under a number of rubrics, and a plaintiff's advocate would have a very unpleasant after-action meeting with a client in a case where the judge poured out the only cause of action where that judge might have let another cause of action to proceed to trial. If you have only one defendant, if that defendant can get dismissed, the whole case is gone. In most cases where there an individual-human-being defendant, there is also at least one other defendant, the individual-human being's employer.) Now, however, the case terminates, there is normally no doubt of what the final judgment is. If the judge rules that the case is finally dismissed, well, that's final. A summary judgment in which all relief not granted is denied is final. (This clause is called a Mother Hubbard clause--symbolically, the cupboard is left bare.) Alternatively, whatever judgment that results from a jury trial in such a case that is not subject to a new trial motion is final. Multiply the number of parties, causes of action or affirmative defenses, and you can see that partial judgments might arise that leave some parties or some causes of action or affirmative defenses undetermined. You might think that a Mother Hubbard clause would categorically solve the problem, but a judgment with a Mother Hubbard clause which clearly leaves some part of the case undecided is not final notwithstanding the clause. Yet, in a super-complicated case in which a judgment with a Mother Hubbard clause is rendered after a jury trial that the trial judge and all of the trial counsel understood to be a final judgment, that judgment might well be final notwithstanding one of a great many parties or a few of a great many causes of action clearly not being disposed of.
A fine discussion full of statutory and case cites on these points is here.
What's an appellate practitioner to do? Review the case file and account for the disposition of every party's causes of action and affirmative defenses, and move for the court to rule as to everything left unruled upon.  Sometimes part of a case can be severed such that that part of the case has a final judgment that can be appealed.

Wednesday, September 5, 2012

Beaumont's Ninth Court of Appeals Rejects State's Retrial Objection

Justice Hollis Horton, writing for a panel of Beaumont's Ninth Court of Appeals including Chief Justice Steve McKeithen and Justice Charles Kreger, affirmed District Judge John Stevens's granting of a motion for new trial in the case of James Cody Guedry.
In August 2007, a City of Beaumont patrolman sees a car fail to yield the right-of-way to another car at a controlled intersection. In the stopped car, two men were in the front.  One was  in the back.  After the stop, other officers arrive to prevent the driver of the car and the front-seat passenger, D.N., from interfering with the arrest of the back-seat passenger, who had an outstanding warrant. A fight started when Guedry tried to pat D.N. down.  An officer near Guedry, David Todd Burke, began hitting D.N. with his baton. Guedry then tased D.N. twice.
The State charged Guedry and Burke with official oppression, a Class A misdemeanor, and they were indicted. Burke was tried first. At Guedry's trial, he used the same lawyer that Burke had, and the same expert witness (He waived his lawyer's conflict of interest in also his also representing Burke.). Guedry's field training officer testified that Beaumont officers should provide a subject with an opportunity to avoid the taser's use if feasible before discharging the taser. D.N. said that he had made a rude comment when Guedry patted him down, but denied resisting the search by grabbing Guedry's hand. Guedry contradicted D.N., and offered the testimony of the expert who testified that if D.N. resisted, Guedry's use of a taser was reasonable.
Guedry was convicted, and filed a motion for new trial, which he amended the day before the hearing (more than 30 days after sentencing). The trial court granted the new trial in the interest of justice on the ground that Guedry had been denied effective assistance of counsel. The State appealed because:

  • the court should not have held a hearing on a motion for new trial where it was not sworn and there were no affidavits and because relief should not have been granted on a new trial motion amended more than 30 days after sentencing; and
  • Guedry did not prove ineffective assistance of counsel.
The Appeals Court held that new trial motions that do not assert newly discovered evidence need not be sworn nor have affidavits. It also held that the amended motion added no new legal grounds to the motion, implying that any error from the amended motion was harmless. Lastly, the Court of Appeals said that ineffective assistance had been proved. Guedry's being stuck with Burke's expert was incompetent.
The D.A.'s office was willing to set its face against Guedry and Burke and so was the police hierarchy, but the bench is not.
Thanks to KIII-TV, channel 3, in Corpus Christi, Texas  for bringing this story to my attention. I don't have any reason to think that the story made it into Beaumont media, but Corpus is all over it.
State of Texas v. James Cody Guedry, No. 09-11-00185-CR, (Tex. App.--Beaumont, Sept. 5, 2012, no pet. h.).

Tuesday, September 4, 2012

Comparison between Texas's Court of Criminal Appeals and SCOTUS as to Handling Last-Minute Death Appeals

If, God forbid, you ever find yourself working on a capital appeal, be aware of the practical details of filing last minute papers. Texas Court of Criminal Appeals Presiding Judge Sharon Keller famously let her court's office close so that a last minute appeal would not be accepted. You can search this blog for the struggle between Presiding Judge Keller (known as Sharon Killer to the death penalty defense bar) and those opposed to the death penalty, including, but not limited to, my old high school debate adversary University of Houston law professor David Dow. David Oscar Markus of the Southern District of Florida blog drew my attention to a New York Times article about the Supreme Court of the United States's "death clerk."

Saturday, September 1, 2012

Texas Supreme Court Says Anna Shursen Can Testify in SVP Case

Five months ago, I discussed the reversals of Texas sexually violent predator civil commitment trials by the court of appeals for such cases, this blog's court, the Ninth in Beaumont. At that time, one of those cases-- In re Commitment of Michael Bohannon-- had been taken up on petition for review to the Texas Supreme Court by the Special (Prison) Prosecution Unit for the State, accepted by that court, argued, but then not yet decided. The decision came down yesterday.
Justice Nathan Hecht wrote for a unanimous court, holding that an expert in a sexually violent predator civil commitment case need not be a physician or a psychologist, that Anna Shursen was struck merely because she was neither of those, that she was otherwise an expert, and that the Supremes respected Beaumont's finding that excluding her was harmful.
Yesterday's opinion assumed without deciding that a physician's testimony was not needed to civilly commit a sexually violent predator. The statute says it's not necessary. The Texas constitution requires physician testimony to commit a person. The point won't need to be decided unless the State was foolish enough to try to commit someone without physician testimony, which I have no reason to think they've ever done. The agency that represents respondents (defendants) in these cases doesn't have as much budget to pay for expert witnesses as the State does. Because of that, it is very rare that a respondent can get a physician to be an expert witness. To complain about that would have to be in an application for writ of habeas corpus, which the Antiterrorism and Effective Death Penalty makes difficult and for which one does not generally get a free lawyer. They'd have to complain about their own trial counsel.
Congratulations to Kenneth Nash and Andrea Medley, my old colleagues at the prison public defender office State Counsel for Offenders.