Archive for the ‘Appellate And Post-Conviction Issues’ category

Afternoon Updates

May 15, 2007

First, the Decatur Daily reports today:

Three former Alabama Supreme Court justices are asking the country’s highest court to hear the case of Alabama death row inmates who say they don’t have adequate legal representation, but the state is arguing the inmates’ claim is “a work of fiction.”

I explained here that Alabama does an extremely bad job of providing attorneys to convicts on death row. Basically, if those folks want an appointed attorney, they have to first convince a judge that they have a valid claim. Stating a valid claim, though, requires extensive investigation, legal research and writing; in other words, stating a valid claim requires a lawyer. So, as the Tuscaloosa News put it today:

Inmates who are condemned to die have to convince a judge that they need legal representation to protect their rights and to prove that they have a substantial claim for an appeal.

But a suit filed by six death row inmates says they can’t make those cases effectively without an attorney. There’s a circular quality to their argument. They need a lawyer to convince a judge that they need a lawyer.

So the state is just wrong when it says that Alabama provides indigent capital defendants lawyers for post-conviction proceedings. That said, the state is going to win the lawsuit. No way is Scotus going to force the state to set up some kind of indigent program for post-conviction proceedings.

Second, the B’ham City counsel – only a few weeks after several members proudly declared their ignorance and homophobia – has just voted to adopt a new version of a resolution condemning, among other things, homophobia. An official declaration that gays are something other than the cause of the end of the world? Jerry Falwell must be spinning in his grave. Or wherever he is.

Third, once a terrorist, always a terrorist:

Victims of Eric Rudolph, the anti-abortion extremist who pulled off a series of bombings across the South, say he is taunting them from deep within the nation’s most secure federal prison, and authorities say there is little they can do to stop him.

Apparently, he’s writing nasty stories and sending them to fans who publish them on the web. He’s been doing so for quite a while; here’s my post on a similar report from a few months ago. Whether or not the prison authorities can prohibit the letters, like I said in the earlier post, the letters certainly justify Rudolph’s continued stay in a SuperMax prison.

Finally, a case I mentioned here is about to climax:

The owner of an adult store in Decatur launched her final appeal Monday against a state ban on selling sex toys, asking the U.S. Supreme Court to throw out the law as an unconstitutional intrusion into the bedroom.

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Criminal Appeals Are Really Frustrating

April 23, 2007

I lost one on Friday. But that isn’t the frustrating part. Something like nine of ten criminal appeals end in affirmances. The irritating part – and also a big reason for the high affirmance rate – is the way I lost.

First of all, I really did not lose. The trial attorney lost. How, you ask? Well, in non-death penalty appeals, the ONLY errors you can raise on appeal are errors that were properly raised at trial. That means a timely objection stating the specific grounds on which it relies. And that specific ground is the only ground on which you can rely during the appeal. For example, a statement by a witness may be both hearsay and a confrontation clause violation, but if trial counsel objects on hearsay grounds alone, the confrontation claim goes buh-bye. In this particular case, trial counsel objected to several errors – and I think did so sufficiently – but Alacrap said he did so too late, or on other grounds than what I argued, or too generally. So my issues got no consideration on the merits.

Second, the really annoying part is that in contrast to a civil appeal, where your only adversary is the opposing party, in a criminal appeal you have to fight the Attorney General’s office AND the appellate court. I’m not just being cynical. In this case, the A.G.’s office never even hinted at the preservation issue; Alacrap thought it up, researched it, and wrote the argument all by themselves. 

I understand the reason for the rule. In a civil case, the only issue is money, and the only people affected are the parties. So if a party does not care enough about their own interests to research and present all the arguments, well, let them bear the costs of their neglect. But a criminal case involves the whole state’s interests. It is, after all, the State of Alabama v. Joe Accused. So if the A.G.’s office is derelict – and they often are, this is NOT the first case I have lost on an argument never raised by the A.G.’s office – the whole state suffers. If Alacrap did not take up the A.G.’s slack, we would have more reversals than there are courts to hold the new trials, and that would be bad.

But the fighting the court is still annoying.

First, it undermines the idea of a court as a neutral arbiter. They’re taking sides. Like I said, I understand the reason, but it’s still taking sides.

Second, it’s appellate arguments by ambush. The way appeals work is that the defendant files an appellate brief, the A.G. responds, and then the defendant can reply. In this case, I knew preservation was an issue, so I tailored my initial brief so as to allow an easy response when the state raised it in their brief. But the state did not raise it, so I had nothing to which I could reply. Then Alacrap goes and makes their decision based on the preservation issue. In other words, I was ready to fight over the preservation issue, but the party I am supposed to fight never raised it. And I do not get a chance to reply to Alacrap prior to the opinion. So the decision is made without full arguments over the issue.  

Third, allowing the court to take up the state’s slack is a ridiculously bald double standard. In non-death penalty cases, if a defendant does not object to an error at trial, that error, no matter how egregious or obvious, is waived. Ditto for appeals. The appellate court is not going to consider any arguments except the ones I specifically raise and argue. But when the state overlooks the obvious, or even the not-so-obvious? In swoops Alacrap to save the day.

So there it is. My only hope now is that I can convince the state supremes to consider the case. Right. Grhhh.

Scotus And Exxon-Mobil

February 21, 2007

I speculated a few months back that one reason our state supremes had not yet decided the Exxon-Mobil case was that they were waiting for Scotus to decide their latest punitive damages case.

Well, Scotus decided it yesterday, and, although the ruling is as clear as mud, it does not appear to have much, if any, applicability to the Exxon-Mobil case.

The Scotus case was Phillip Morris v. Williams, and the first clue that it was a weird case is the fact that Justice Ginsberg wrote a dissent in which Justices Scalia and Thomas fully joined.

In the case Phillip Morris made two arguments. First, that the 100-1 ration of punitive to compensatory damages was unconstitutionally high. Second, that the trial court should have instructed the jury that they could not punish Phillip Morris for harms caused to people who were not parties to the litigation.

What Phillip Morris, Exxon-Mobil and the entire business community really wanted was for Scotus to find in their favor on the first question by saying something like “the ratio can never be more than 2-1.” Sadly, for them, Scotus ignored the first question and ruled only on the second, agreeing with Phillip Morris that juries cannot punish defendants for harm caused to non-parties.

That sounds good, but then the court said juries could consider harms to non-parties when determining the “reprehensibility” of the defendant’s conduct. So they can’t punish them for the harm to non-parties, but they can consider the harm to the non-parties when deciding on the right amount of punitive damages. I’m not making this up:

Respondent argues that she is free to show harm to other victims because it is relevant to a different part of the punitive damages constitutional equation, namely, reprehensibility. That is to say, harm to others shows more reprehensible conduct. Philip Morris, in turn, does not deny that a plaintiff may show harm to others in order to demonstrate reprehensibility. Nor do we. Evidence of actual harm to nonparties can help to show that the conduct that harmed the plaintiff also posed a substantial risk of harm to the general public, and so was particularly reprehensible, although counsel may argue in a particular case that conduct resulting in no harm to others nonetheless posed a grave risk to the public, or the converse. Yet for the reasons given above, a jury may not go further than this and use a punitive damages verdict to punish a defendant directly on account of harms it is alleged to have visited on nonparties.

I pitty the fool who has to apply that “rule” to a hypothetical on a bar exam. And does the all-wise Scotus give would be lawyers, as well as plaintiff’s attorneys, corporate counsel, trial judges or juries, any help whatsoever in making this distinction real? Of course not:

How can we know whether a jury, in taking account of harm caused others under the rubric of reprehensibility, also seeks to punish the defendant for having caused injury to others? Our answer is that state courts cannot authorize procedures that create an unreasonable and unnecessary risk of any such confusion occurring. In articular, we believe that where the risk of that misunderstanding is a significant one because, for instance, of the sort of evidence that was introduced at trial or the kinds of argument the plaintiff made to the jury a court, upon request, must protect against that risk. Although the States have some flexibility to determine what kind of procedures they will implement, federal constitutional law obligates them to provide some form of protection in appropriate cases.

Shorter version: “We needed to decide this case, but we really did not want to drop the 2-1 ratio bomb, so we concocted this silly distinction. Not sure what it means. But you guys have nothing better to do than try to figure it out. Oh, and if you guess wrong, we’ll make you do it over again.” Wow. Good luck with that.

Anyway, I don’t think this is going to impact Exxon-Mobil.

First, so far as I know, the only damages in Exxon-Mobil involved harms to Alabama. I have not seen anything in the papers about arguments that the company’s actions could have damaged anyone else. So whether or not the jury punished them for injuries suffered by non-parties should not even be an issue.

Second, unless Exxon-Mobil had raised this objection in the trial court, they would not be able to argue it now. Appeals are limited to issues previously argued in the trial court. Given the weird nature of the Phillip Morris case, I would be very surprised if Exxon-Mobil had made a similar argument at the trial court. Maybe they did. But I doubt it.

So, I guess the delay is due either to the conspiracy theory or the subjective nature of punative damages review.

A New Favorite Footnote?

December 13, 2006

The current champ is here. The challenger also comes from the Seventh Circuit. There’s a federal law that requires all federal prisoners upon release to provide a blood sample that will then be used for a nationwide DNA database. In this case, the prisoner argued, among other things, that extracting the blood would be cruel and unusual punishment. His truly original (and originalist) argument is dismissed in footnote three:

Hook provides an uncited, but novel assertion that the Founding Fathers would have considered “blood extraction” to be “cruel and unusual punishment” because, purportedly, “[v]ampires were feared and vilified” at the time of the Founding. Even accepting this proposition, blood extraction by a vampire is certainly distinguishable from a sanitary blood draw under current medical practice.

Alabama Supremes: Sweepstakes Machines At B’ham Race Course Are Illegal

December 1, 2006

The story:

The casino-style sweepstakes operations at the Birmingham Race Course are illegal, the Alabama Supreme Court ruled today, reversing a Jefferson County judge’s ruling earlier this year.

The 7-0 decision, written by Justice Tom Woodall, said the machines at the race course’s Internet Cafe are slot machines, which are illegal in Alabama.

Patrons at the race course can purchase internet time, which contains a certain number of sweepstakes entries based on the amount the person paid. The results of the sweepstakes are encoded on an electronic reader card. People can use “reader machines,” which look like slot machines, to find out how much cash they won.

In January, Jefferson County Circuit Judge Scott Vowell ruled that McGregor and the manufacturer, Innovative Sweepstakes Systems, Inc., had found a a legal loophole that should be closed by the Legislature. Even though the machines looked and sounded like illegal slots, they were not illegal under state law, he wrote.

But the state’s highest court called the machines “a refinement” of the original slot machine that takes advantage of modern technology but still amounts to illegal games of chance.

Well.  So much for my analysis, which agreed with Judge Vowell.  When the opinion’s available, maybe I’ll comment on it. For now, I will only say I am disappointed in my B’ham city councilwoman:

“This is probably bad news for Mr. McGregor but good news to the City of Birmingham,” said Birmingham City Councilwoman Valerie Abbott, who has introduced an ordinance to ban the machines. “His loss is our gain.”

No doubt this is bad for Mr. McGregor, but I fail to see how it is good for the city. I do not gamble, and I certainly would never spend my time or money in a place as pathetic as the B’ham race course. But that’s me. Apparently there is a large market of folks who think otherwise. How it benefits the city to tell them they are not allowed to spend their money in our town, or in a business that pays taxes to our town, is beyond me.

Then again, now that we won’t have any more of these wicked gamblers, maybe unlucky number 98 will be the last homicide for the year.

UPDATE: Here’s the opinion. Hmmm, interesting. The law is the law, so the court attacks Judge Vowell’s factual findings. For an appellate court to reject a trial court’s factual findings is very unusual. And, as I’ll try to explain Monday, these things are slot machines in the same way Chief Knock-A-Homer is a robot.

Dead People Suck

November 16, 2006

Talk about strange bedfellows:

Republican Sen. Jeff Sessions is joining a California Democrat to try to scrap the legal precedent that allowed Enron founder Kenneth Lay’s fraud conviction to be cleared from his record after he died in July.

The clearing of Lay’s record has hurt prosecutors’ efforts to extract $43.5 million in restitution from Lay’s estate. Sessions’ legislation is an attempt to address that.

Working with the Justice Department, which asked for similar legislation shortly after Lay died, Sessions of Mobile joined Democrat Dianne Feinstein [!?!] of California to introduce a bill this week that would keep federal convictions in force when a defendant dies, while allowing victims to continue seeking restitution.

A few clarifications.

First, I noted this odd law on the day St. Ken died:

No prison now. In fact, Ken Lay is an innocent man. From the federal court that would have heard Ken Lay’s appeal:

It is well established in this circuit that the death of a criminal defendant pending an appeal of his or her case abates, ab initio, the entire criminal proceeding. That is, the appeal does not just disappear, and the case is not merely dismissed. Instead, everything associated with the case is extinguished, leaving the defendant “as if he had never been indicted or convicted.”

I wonder if our local bedfellows in politico-business corruption have seen this? Given some of their tactics so far, there is no telling what may happen.

Second, the basis of the rule is that without having been tested by the appeal, the conviction is not reliable. Or at least not reliable enough to leave it standing forever as an official declaration that the man was a criminal. This is one of the few areas where the law is merciful.

Third, nothing in the rule prevents victims from pursuing claims against Lay’s estate. That the whole criminal procedure is as if it never occurred might mean they can not use the conviction as evidence in the civil case, but it does not prohibit a civil suit.

Fourth, what the rule did do is shoot down the government’s criminal restitution claim. They do not like that because when they want restitution as part of a criminal case, they do not have to go to a jury, they get to use hearsay, and they only have to prove by the slimmest of margins that the money was somehow or another related to the criminal activity. It is a VERY government friendly procedure. Filing a separate lawsuit, however, means the estate gets the benefit of a jury, the rules of evidence, and the rules of civil procedure. 

So this isn’t really about right or wrong, fair or unfair, it’s about making it easy for the government to take people’s money. Death taxes, anyone?

This Little Light Of Mine And Judicial Elections

November 9, 2006

I wondered yesterday how in the world Drayton Nabers managed to lose his seat as Chief Justice. This morning, the experts are in agreement that it was Sue Bell Cobb’s commercial in which she played the piano and sang “This Little Light of Mine.”

Pause here, and digest that for a bit.

To be fair, it was not just the commercial. They think Naber’s attack ads actually backfired on him, and that Cobb’s experience also helped. My point, though, is that the race was not decided on merit.

SBC may end up being a fine judge, but that she got the job because of her singing talents ought to concern us all. Do we really want the makeup of our judiciary to depend on who has the snazzier commercials?

Maybe we ought to consider a different method for choosing judges.

I know it sounds elitist to suggest that judges ought to be appointed, but being a judge is different than being a normal politician. The judge is supposed to be beholden to no-one but the law. Elections make them dependant on parties, and donors, and the whims of voters. The dependence must have some impact on the decisions, and if not it certainly looks like it does. No-one wins when justice is for sale.

I’m never going to argue in favor of the federal system, in which the process is entirely controlled by politicians and the result is life tenure for the judge. That is too much protection. I will, though, argue in support of the state bar’s proposal. I know you are tired of hearing me rant about this, so I promise not to bring it up again. For a while anyway.

Under that bar’s plan, a nine person nominating commission first selects three candidates, and the governor will then choose one of those three.

The nominating commission consists of four lawyers, four non-lawyers, and a judge. One of the lawyers must be a civil defense lawyer, one must be a plaintiff’s lawyer, one must be neither, and one can be anything. All members are limited to one four year term.

At the expiration of the judge’s term, she can run in a retention election. The ballot is non-partisan and asks only whether or not the judge ought to be retained for another term.

Prior to that election, an evaluation commission will provide a public report. The report will include pertinent information and the commission’s recommendation for the election, either retain, do not retain, or no opinion.

The evaluation commission consists of five non-lawyers, four lawyers, the Chief Justice, and either the presiding judge of the court of criminal appeals, or the presiding judge of the court of civil appeals. No one is allowed to serve on both commissions.

I think this is a great plan. It gives people a voice, but makes sure they have good information upon which to act. It insulates judges from the political process but also keeps them accountable. It also insulates the judges from the poisonous affects of campaign donations. No one is going to pore money into a retention election when they have no idea who the replacement would be. If the judge is not retained, the whole process starts over. The result could just as easily be worse for whatever special interest is affected.

One more thing. Bob Riley said that after his second term, our motto will no longer be “thank God for Mississippi.” If the bar’s plan ever became reality, in this area we would be national leaders. I know for some of us that is reason to oppose it. But for the rest of us, this would be something we could truly point to with pride.  

So there it is. I will leave the issue alone now. If you want more of my rants on judicial elections, go here, here, here, and here.