Archive for the ‘Lawyers’ Category

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WHAT HAPPENED:  Defendant, who is a legal immigrant, was charged with burglaries, which warranted mandatory removal under the Federal Immigration State as a “violent felony”.

WHY IS THIS BEFORE THE SUPREME COURT:  The defendant did not contest the underlying charges, but more whether or not the “violent felony” language, which includes any “felony that is likely to result in violence to persons or property”, was unconstitutionally vague.  Under the Due Process clause, criminal statutes can be invalidated if they do not give citizens fair notice of what is being punished, which came up two years ago in a case, Johnson v. U.S..  In Johnson, the Court held that the term “violent felony” was vague as it applied to the Armed Career Criminals Act, so the question here is whether the same applies to the Immigration Act.

WHAT ARE THE RAMIFICATIONS:  Should the Lower Court’s decision invalidating the Act hold, the procedure for removing violent felons would need to be re-written to either (a) articulate what a violent felony is more specifically, or (b) just make all felonies grounds for removal.  Since Congress doesn’t like MORE work on the table and panicking about dangerous immigrants is all the rage these days, my guess is that Supreme Court isn’t in a hurry to be on the front page of FOX NEWS for the next year.

ROOT FOR SESSIONS IF: You’re scared of violent immigrants.

ROOT FOR DIMAYA IF:  you are more interested in fostering conservative panic more that you are afraid of violent immigrants.

PREDICTION:  Sessions 6-3

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WHAT HAPPENED: Appellant is an indigent defendant who was convicted of first degree murder.  Appellant sought medical expert to assist with his sentencing and was provided with an expert by the State.  Following some kind of calamity involving timing and delivering the report, Appellant was sentenced to death (by electrocution because this was in 1984).

WHY IS THIS BEFORE THE SUPREME COURT:  In the 1970s, the Supreme Court (by way of Thurgood Marshall) held that indigent defendants were entitled to medical experts to assist with the insanity defense.  The Court held that the cost to the State was nominal compared to the benefit it would provide in ensuring that justice was served.  This case takes that holding one step further, and asks that not only does the State have to provide a medical expert, but also has to provide someone who is completely independent from the State as to reduce bias.

WHAT ARE THE RAMIFICATIONS – This is either (1) a dollars and cents issue, or (2) another way that the Court could create more ways that people on death row can overturn their sentences.  One on hand, hiring an independent expert would cost more, but once again you would have to wonder how much it would really be in light of the purpose behind providing the expert.  If you also believe that experts are mostly just mercenaries who say whatever they are paid to say, the benefit here is pretty high.  On the other hand, a ruling in favor of the Defendant is a pretty far stretch from the original Court’s holding, and finding that an independent expert has been required since 1984 would open the door for past death row inmates to contest their sentences, which would in turn bring more old death row cases before the Court, which would in turn make Clarence Thomas freak out.

ROOT FOR MCWILLIAMS IF: you want to see Clarence Thomas freak out.

ROOT FOR DUNN IF: you think poor Clarence Thomas has been through enough.

PREDICTION:  Dunn 6-2

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WHAT HAPPENED:  Defendant was a foreign resident in the United States when he was arrested for possession of drugs.  Defendant’s attorney informed Defendant that if he pled guilty, he would not be deported.  Defendant pled guilty and was immediately deported.  Defendant argues his attorney’s mistake should grant him a new trial.

WHY IS THIS BEFORE THE SUPREME COURT:  Ineffective Assistance of Counsel is a claim rooted in the 5th and 6th Amendments which grants a Defendant a new trial when it is proven that the attorney who represented the defendant did an objectively bad job, and that the attorney’s job affected the outcome.  In this case, it is fairly clear a mistake occurred; however, there was such overwhelming evidence against the Defendant that the lower court found that the attorney’s error did not make a difference.  The Court here must decide whether or not the gravity of the error is more important than the effect it had on the outcome of the case.

WHAT ARE THE RAMIFICATIONS –  While the Court is often hesitant to grant IAC claims (as they require that the Court start the criminal trial from the beginning), the Court is very attentive when a person pleads guilty, waiving all rights to a fair trial, on mistaken grounds.  It is for those reasons that this case may get special attention because of the timing of the mistake and implications of a guilty plea.  It is hard to say whether or not this case will generally expand the rights of IAC claims during trial; however, it may give greater protection to defendants who plead guilty and find that anytime the attorney’s mistake induces a Defendant to plead guilty, the defendant automatically gets a new trial without consideration of how the case could have gone.

ROOT FOR LEE IF:  you read this post and thought “that sucks”.

ROOT FOR U.S. IF:  you read this post and thought “who cares”.

PREDICTION:  Lee 6-2

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WHAT HAPPENED:  Defendant (Buck) was in the sentencing phase of his trial and his attorney presented an expert told the jury that Defendant was more prone to violence because of his race.  Defendant argues that this mistake prejudiced his death penalty sentencing and he should receive a new sentencing based on an Ineffective Assistance of Counsel claim.  The State’s objections to Defendant’s claim are somewhat strange, since this expert had been used by the State in the past, and the State voluntarily commuted the death penalty sentences for those defendants.  The State did not commute this death penalty sentence because Defendant put on the expert and not the State.

WHY IS THIS BEFORE THE SUPREME COURT:  Ineffective Assistance of Counsel is a claim rooted in the 5th and 6th Amendments which grants a Defendant a new trial when it is proven that the attorney who represented the defendant did an objectively bad job, and that the attorney’s job affected the outcome.  In this case, I think we can all agree presenting an expert who has a history of making racist claims, and then having that expert shares those claims with the jury  is not something you learn in law school.  The issue here is whether or not this expert sufficiently affected the sentencing phase, or if the evidence presented by the State satisfied the burden of proving the death penalty regardless of that witness’ testimony.

WHAT ARE THE RAMIFICATIONS –  Every year there are cases before the Supreme Court that can have long-lasting effects on future cases, but more often than not the Court is faced with weird fact patterns that exist only within themselves.  It is hard to see how this case will have any long lasting effect on IAC claims, since it is unlikely that this kind of expert is still being used, or if there is anything comparable to this kind of conduct.  At oral argument, the Court used some fairly strong language condemning the expert and the attorney, so on those grounds alone, it looks like the implications of upholding the sentence are weighing heavier than the implications of removing the death penalty.

ROOT FOR BUCK IF:  even the hint of racism is repugnant to your sense of justice.

ROOT FOR DAVIS IF:  an efficient system takes precedence over a corrupt one.

PREDICTION:  Buck 8-0.

The Questions Attorneys Ask

Posted: August 12, 2016 by Nazim in Lawyers, Moral High Ground

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Attorneys ask obnoxious, stupid, often insulting questions. It’s not their fault, or at least we don’t think it’s our fault, but this hand-waving justification is the kind of thing that shouldn’t really fly: it’s our job. That justification never stopped me from hanging up a telemarketer, and should not have induced nazis to do theirs. A lot has been written about this by the fabulous Hannah Arendt, someone I’m proud to call a co-citizen. But this isn’t about that. Let me rewind the tape.

It was already a long day of arbitration yesterday when an experienced attorney put his foot in his mouth. It wasn’t a big misstep, and definitely something any attorney could have done. But that’s the point that struck me. He barely lost any amount of that vague score judges and arbitrators keep in their head, olympic-judge style, a triviality in the greater scheme of the case. However, the laypeople in the room certainly didn’t think so. To an outsider, on the other hand, the blunder looked bad: caustic, even offensive. The offending statement was about how one of the parties should have been minding the matters of the case instead of travelling. The travel, however, was to go see the party’s father on his deathbed.

In the middle of litigation, attorneys get so bogged down by the finer details that it’s hard to let go of any of them, and even this blunder triggered some swift retaliation from opposing counsel. I’m sure the laypeople in the room felt a twinge of gratitude or respect for the punishing attorney, but none of the industry folks in the room gave it a second though. Even during deliberation, the issue wasn’t mentioned. We did snicker about another misstep, a much less offensive and blatant one, albeit one that probably tipped the scales in a slightly more tangible way in that case. That moment that might have made news in a small town, slow news day, but it was just par for the course in the industry.

I haven’t come up with a takeaway, here. Maybe, if you’re a layperson, it’s this: if you get involved in a lawsuit, expect some pretty prying and obnoxious questions. But for me, it’s just another of those weird, bewildering things one does for a living. Sincere apologies.

I was reminded of these thoughts by this inspiring link from Lowering the Bar involving SHARKS!

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You’ve probably seen this elsewhere, but I wanted to link the beautiful letter the MO PD sent to the Governor (pdf warning). Now, let’s move on to how the governor could get out of doing the job, because he will. As the letter plainly states, the PD’s office has the legal power to appoint any attorney with a current bar license. There’s no conflict of interest, because the prosecutor is an independently elected office in the great state of Missouri. Maybe the governor can get out it by suspending his bar membership? Well, all my dreams will come true if he takes the case to trial, loses, and then pardons his client.

Hat tip to Nick for highlighting the article on buzzfeed.

WHAT HAPPENED:  After a long trial about a topic that doesn’t matter for purposes of this summary, a civil jury returned with a verdict that was objectively wrong.  The judge, who is tasked with supervising these types of things, only realized the mistake after letting the jury leave the courtroom.  To avoid having to do the trial all over again, the judge brought the jury back in the room, corrected their mistake, made sure they didn’t talk to each other, and then asked them to amend their verdict.

WHY IS THIS BEFORE THE SUPREME COURT:  Jurors are preserved in such a way that any nominal form of contamination of the jury process usually results in a mistrial.   Although this judge attempted to fix the problem, the appellant in this case feels like any dismissal should result in a new trial.

WHAT IS THE RULING:  This case is not yet decided.

WHAT ARE THE RAMIFICATIONS:  The only thing this case will decide is whether or not a jury can be saved after jury dismissal.  One side feels like it should be a balancing test that considers actual prejudice, whereas the other feels like we should have a bright line rule.  The only people this really affects in a broad way is judges, who both cause this issue and would have to fix this issue.

ROOT FOR DIETZ IF:  you like burning money.

ROOT FOR BOULDIN IF:  you would rather do something wrong once rather than re-do something a second time to make sure its right.

So here’s a wonderful bit about substance abuse and practicing law.