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Civil appellate, criminal appellate, and criminal trial lawyer at 704 North Thompson Street, #157, Conroe, Texas 77301-2578, (936) 494-1393.
Showing posts with label personal. Show all posts
Showing posts with label personal. Show all posts

Wednesday, October 12, 2016

". . . don't pull the mask of the ol' Lone Ranger and don't mess with SCOTUS"

In Booth v. Maryland, 482 U. S. 496 (1987), the Supreme Court of the United States held that “the Eighth Amendment prohibits a capital sentencing jury from considering victim impact evidence” that does not “relate directly to the circumstances of the crime.” Four years later, in Payne v. Tennessee, 501 U. S. 808 (1991), the Court granted certiorari to reconsider that ban on “‘victim impact’ evidence relating to the personal characteristics of the victim and the emotional impact of the crimes on the victim’s family.” The Court's holding was expressly “limited to” this particular type of victim impact testimony. Booth also held that a victim’s family members’ characterizations and opinions about the crime, the defendant, and the appropriate sentence violates the Eighth Amendment, but no such evidence was presented in Payne, so the Court had no occasion to reconsider that aspect of the decision. The Oklahoma Court of Criminal Appeals has held that Payne implicitly overruled that portion of Booth regarding characterizations of the defendant and opinions of the sentence. Conover v. State, 933 P.2d 904, 920 (1997).
A jury convicted petitioner Bosse of three counts of first-degree murder for the 2010 killing of Katrina Griffin and her two children. The State of Oklahoma sought the death penalty. Over Bosse’s objection, the State asked three of the victims’ relatives to recommend a sentence to the jury. All three recommended death, and the jury agreed. Bosse appealed, arguing that this testimony about the appropriate sentence violated the Eighth Amendment under Booth. The Oklahoma Court of Criminal Appeals affirmed his sentence, concluding that there was “no error.” 2015 OK CR 14, ¶¶ 57–58, 360 P.3d 1203, 1226–1227.
SCOTUS doesn't like lower courts messing with its precedents.
The Oklahoma Court of Criminal Appeals remains bound by Booth’s prohibition on characterizations and opinions from a victim’s family members about the crime, the defendant, and the appropriate sentence unless SCOTUS reconsiders that ban. 
The State argued in opposing certiorari that, even if the Oklahoma Court of Criminal Appeals was wrong in its victim impact ruling, that error did not affect the jury’s sentencing determination, and the defendant’s rights were in any event protected by the mandatory sentencing review in capital cases required under Oklahoma law, but SCOTUS is sending the case down on remand. 
Shaun Michael Bosse v. Oklahoma, No. 15–9173, 580 U.S. ____, (Oct. 11, 2016) 

Thursday, October 16, 2014

Appellate Court Personal Jurisdiction


Usually, as to Texas state class C misdemeanors or municipal ordinance violations, personal jurisdiction in a trial court is obtained over a person by service of a summons, though in rare cases, it can be gained by the arrest of the defendant.
In higher level Texas crimes, personal jurisdiction is normally  invoked by the arrest of the defendant.
In civil matters, normally, one or more plaintiffs give notice to one or more defendants by service of citation and the petition or complaint is served with the citation. Except for special appearances-- procedurally tricky filings which allege that a court does not have jurisdiction over a matter-- even an unserved party can subject itself to jurisdiction by merely filing a document in the court's file.
In justice of the peace courts, a timely request with a bond or a pauper's oath will get one a de novo trial in a higher court. The same is true of municipal courts that are not courts of record-- that is, ones that do not keep track of things by a court reporter or recorder. Appeals from municipal courts of record are not de novo, the higher courts to them, sit as courts of errors like courts of appeals. Motions for new trial and bonds are required also.
In higher courts, an unhappy trial litigant files a notice of appeal in the trial court before the deadline, a timely appeal generally invokes the jurisdiction of a court of appeals. In civil litigation, it is not uncommon for some parties to want to appeal and others not to. Sometimes some trial litigants can hold on to trial rulings they like by not appealing, though other times any single appeal can invoke jurisdiction as against the other parties. Notices of appeal, petitions for discretionary review, and applications for writ of certiorari must generally be timely, otherwise they do not impose appellate jurisdiction. The main exception to this being that the Court of Criminal Appeals may authorize an out-of-time appeal by a writ of habeas corpus (See the post before this one.)
Extraordinary writs, which I have talked about earlier, may give a basis for a higher trial court or appellate court to invoke the jurisdiction of such a court without having started in a lower court.