Habeas Upheld for Ineffective Assistance of Appellate Counsel

The United States Second Circuit Court of Appeals upheld the granting of a writ of habeas corpus and a new trial Friday, April 2, 2010 to defendant Racky Ramfair because his appellate counsel was ineffective in assisting him.
Robert D. Sack, a Clinton appointee, wrote the opinion for a panel that also included senior-- that is, retired-- judges Guido Calabresi, famed Yale legal scholar who is also a Clinton appointee, and former chief judge Ralph K. Winter, Jr., a Reagan appointee.
Ramfair was accused of robbing cabdrivers in the New York City borough of Queens. His appointed lawyer Jonathan D. Latimer, III, was present at a lineup which identified Ramfair. It is undisputed that Latimer was at the lineup, but he does not remember if he objected then. Some of the men in the lineup had facial hair; some did not. The police had the ones who did not to rub their faces with carbon paper for the viewing.
The first trial resulted in a mistrial when Ramfair was assaulted while in jail. He had a second mistrial when a juror had to be hospitalized during the trial. The main issue at that trial was whether the robbery victims had said that Ramfair was the man who attacked them because he looked different from the other men in the lineup. At the third trial, a police witness revealed that Latimer had been present at the lineup and testified that he had not objected. Latimer asked the court for permission to testify to dispute that testimony. The judge overruled him. Latimer moved for a mistrial. It was also overruled. In closing argument, the prosecutor emphasized that Latimer had been at the lineup and of the testimony that Latimer had not objected then.
Ramchair was convicted, and ended up getting 10 to 20 years in prison. He had different appointed counsel on appeal. She brought two issues. First, that the trial violated double jeopardy. Second, that Latimer should have been allowed to testify.
The Appellate Division of the New York Supreme Court (equivalent to Texas's state courts of appeal) affirmed. It said that Latimer should have sought to withdraw. If he had, they said, Ramchair could have had a new, different lawyer and Latimer would have been just a witness instead of being both a witness and trial counsel.As a practical matter, this would almost certainly have required a fourth trial.
Making a long story short, the federal trial court held more proceedings in this case between June 30, 2009 and February 12, 2010, resulting in Friday's ruling.
Here are some observations about this. First, this is mostly a panel of retired judges. Federal judges are more open to do unpopular things-- like grant habeas relief-- than state judges are. Senior federal judges are even more likely to. Second, if the lineup was unduly suggestive, Ramchair might be doing time for a crime that he did not commit. Such a case is much more appealing to a federal habeas judge or an appellate judge than a due-process-type challenge made by a guilty person. Third, Ramchair has served approximately thirteen years of a 10-to-20 year sentence. If he was improperly convicted, he's done about as much time as he would have done had he been properly convicted. When I saw oral argument in the Fifth Circuit, I noticed the electric emotional effect such an argument on federals appeals judges in a case such as that. Fourth, conventional wisdom about how many issues an appellate lawyer should put in a brief is that one should not put in more than two or three (in an extreme case, four) if you really want the appellate court to rule in your favor. Appeals court judges don't believe that a trial could have more than a few important errors, and lengthy briefs make their hearts sink. The only time one wants many issues should be put in is when the purpose of a brief is to preserve error in some proceeding likely far-off in time. For example, a criminal defense lawyer may reasonably that the only court likely to rule for a defendant is a federal one. To get to that federal court properly, one has to exhaust one's state remedies and that might well take years. There is a good chance that the federal habeas lawyer will not be the one doing the original appeal to the trial court. The world might be very different then. That might be one scenario; the other is defensive law practice. Complain about everything, all the time, to be ready when the ineffective assistance of counsel claim is made or when the grievance is filed.

D.C. Circuit Seals Courtroom to Hide Appellant's Identity

The District of Columbia Court of Appeals has sealed the courtroom for a special education case where the appellant's counsel is his mother. The appellant's identity is secret. The court fears that if someone saw appellant's counsel- supposedly a well-known courthouse figure- everyone would know the appellant's identity.

A Taste of Law School

Mostly what I write here is targeted at trial lawyers, but if you are not a lawyer and want a taste of what law school is like, check out this discussion of a novel legal problem- in this case, when a meteorite crashes into a leased commercial building, who has the better claim: the landlord or the tenant?

For Carrying a Weapon, the Plain Statutory Language Is Not Enough

For defense counsel, a most promising source of reversible error is the jury charge. The trial judge in the case of Hernandez v. State, No. 14-08-00787-CR, (Tex. App.-- Houston [14th Dist.], Mar. 16, 2010, no pet. h.)refused a self-defense instruction, apparently because defendant-appellant Hernandez's handgun possession was illegal. The proposed jury instruction seems to be to be a gross oversimplification of the law. The opinion states that Hernandez was trying to recover property stolen from his employer by a third person. The opinion neither indicates nor claims that Hernandez's attempt was illegal or improper. It is the defense lawyer's duty to provide the trial court with an accurate statement of the law. This does not appear to have been done, and appears to render any error harmless, though it might be a basis for a writ.

A Suprising Place to Find a Summary of Texas Criminal Law

I was surprised to find the best short summary of the Texas criminal law today on Hidalgo County Criminal District Attorney Rene Guerra's web site. It's an outline, but comprehensive.

I Am Not Dead Nor Do I Sleep

I have had very little access to an internet-enabled computer the last few weeks. I have good reason to believe that I will have a working, internet-enabled computer during practically all business hours after late Monday morning at the latest. I expect the blog posts to come a lot faster then.

What This Blog Is Trying to Be and Do

On February 26, I read the best article on blogging I've ever read Joel Spolsky's final column in March's Inc. magazine. He recounts Kathy Sierra's observation that an entrepreneur s blog has to be about something bigger than his or her company or his or her product. Such a blogger needs to share knowledge about the common interest(s) of the blogger and the reader. Blogs about the exploits of the blogger or the blogger's business is boring. (Don't we blog readers know that!)

So, who is this blog for and what is it about?

I started with the idea of a blog for lawyers who were thinking about bringing or defending an appeal-- more specifically, trial lawyers who were trying to decide whether or not to bring or defend an appeal or some other appellate proceeding themselves or whether or not to hire an appellate lawyer to do it. Additionally, appellate courts are beautiful, weird, old-fashioned institutions. Some of their processes and practices will never change: they inhere in their mission. Many of their practices are antiquated and will have to change. The third area this blog is intended to address is legal writing. Legal writing is actually improving greatly over what it has been in the past. The only other time in the history of common-law law practice that writing appears to me to have improved was when the Federal Rules of Procedure were introduced and many appellate judges and law professors were embarrassed by how badly their writing sounded. Still, of any communications profession I know of, lawyers still write the worst.

There is a tradition among political actors in some southern states, Texas for example, to thank God for Mississippi. (Sometimes it might be, instead, my mother's home state of Arkansas or my wife's people's home state of Louisiana.) Thank God for Mississippi, otherwise we'd be last in education (or some other government service). I say thank God for technical writers. They make lawyers sound clear.

This blog has a point of view. It reflects my point of view. I generally believe in following constituted legal authority, including procedural and local rules. Do your homework-- that is, your legal and factual research. (In the past lawyers had few precedents, no typewriters, no copy machines, no computers, no phones and no fax machines. Lawyers and judges travelled by horse. What the appellate community produces should be a whole lot better than it used to be.) Don't put a wrench in a court's work by not taking cognisance of a court's internal operating procedures. Use checklists. And write pithily, with power. Don't beat around the bush.