Defining the role of appellate courts

Dan Klau points, rather diplomatically, to a Connecticut Supreme Court opinion issued today [PDF] which he lost. It’s a civil case, but what sucked me in was his description of the issues in the case, which fits right in with the theme of complaints that I have with this present Supreme Court:

In particular, it will tell us whether a majority of the Court believes that the proper role of an appellate court is to decide the issues that the parties have raised and argued–and only those issues–or, alternatively, whether the Court believes that it is appropriate to decide cases based on issues that appellate judges raise on their own initiative. In short, can and should appellate courts raise and decide unpreserved issues sua sponte?

Today, the Connecticut Supreme Court ruled that yes, it could very well decide appeals based on issues that it raised on its own and that no one thought of at the trial level and that weren’t preserved or properly briefed or that the trial judge had no opportunity to consider.

Okay, that’ll be the last of the snark for today, because it actually is a really interesting and important opinion written by Justice Palmer.

The issues were divided up by the Court as follows:

  1. And here, the Court shifts the burden to the other party to show that there would not be any unfair burden to the opponent.
  2. Although this can be overcome or ignored under the right circumstances, according to the court.

Friendly reminder to law enforcement: stop listening to attorney-client conversations

It is, of course, an undeniable fundamental right that communications between a criminal defendant and his or her attorney should be utterly confidential1 and that, under no circumstances, should the prosecution get access to the content of those conversations.

Having said that, what is to be done if a prosecutor gets hold of confidential communications or learns of the substance of these conversations? Must there be an automatic reversal? Or this “fundamental right” to be rendered meaningless yet again, subjected to the legal fiction of harmlessness.

That is the question confronted by the Supreme Court of Washington in State v. Fuentes. In Fuentes, after the defendant was convicted by a jury, but during the pendency of post-trial motions, the prosecutor asked the investigating detective to listen to the defendant’s phone calls from jail to determine if there was any witness tampering going on2:

  1. Except in very narrow, finite circumstances to avoid death or serious physical injury.
  2. The defendant’s family had approached and interviewed the complainant’s half-sister in order to present additional testimony that the allegations were fabricated.

Hang on a minute, I need to indict someone

I Ham Sandwich

Would you like due process violations as your side or just some plain old cocaine?1

You know, when people usually say “hang on a minute”, you know that it’s going to take longer than a minute. It never takes a minute. Unless you’re a grand jury in North Carolina, that is. From the Charlotte Observer, via Andrew Cohen2:

During a single four-hour workday last week, a Mecklenburg County grand jury heard 276 cases and handed down 276 indictments.

That means the 18 jurors heard evidence, asked questions, weighed whether the charges merit a trial, then voted on the indictments – all at the average rate of one case every 52 seconds.

You read something like that and you just have to laugh. You have to laugh because it’s so improbable and so absurd that it must be true and that it can only happen here, in these United States of America, the best country in the world with the best justice system in the world, because by God, we hate criminals.

In the time that it’s taken you to read this post so far, 3 people have gotten indicted by that careful, deliberative North Carolina grand jury. And another one. And another one. Mayhem!

There is no greater example of grand juries outliving their utility. It is inescapable that this grand jury did not perform its time honored-function of, as Andrew Cohen puts it:

  1. Image via.
  2. I love you Andrew Cohen.
  3. No wonder Connecticut prosecutors are pushing for a return to a modified grand jury system

Woman on the run for 30 years finally arrested. Again.

no-oh-rly

37 years ago, Judy Lynn Hayman escaped from a Michigan prison where she was serving an 18-24 month sentence for attempted larceny and ran off. She ended up in San Diego, where she lived a law-abiding life, with three kids and was the prototypical “quiet neighbor”.

She was only tracked down and arrested because of a bored, snowed-in officer in Michigan:

Lt. Charles Levens of the Michigan Corrections Department pursues parole violators, but recent severe weather had kept him in the office and off icy roads. He requested the fingerprint cards for all old escapees and sent them to the FBI.

She will be returned to Michigan where a parole board will determine how much time, if any, she will have to serve to finish her sentence.

If all of this seems incredibly familiar, it’s because it’s happened before, almost exactly in the same way. In 2008, Marie Walsh was arrested for being an escapee whose real name was Susan LeFevre. That’s not all. Both were eventually found in San Diego. And that’s still not all. Both were on the run from Michigan.

Walsh/LeFevre ended up spending 13 months in prison. I asked the question back then and I’ll ask it again: what should happen to Hayman? It’s been 37 years and while the Michigan DOC Commissioner is right and you can’t just let her go simply because it’s been that long, does she deserve to spend any more time in jail? If so, how long? Why?

Lesson of the day: if you’re on the run from Michigan, don’t go to San Diego.

What win-loss records mean for criminal-defense attorneys (updated)

smbc-sisyphusFrom SMBC. Go there, and click on the red button below the image for a further joke1.

Update: To be honest, on most days it feels more like this:

Escher-Big

—–

 

  1. If you’re too lazy to do that: “What does a level get me?” “More strength. Bigger rock.” “WooHoo!’

Flash me: It takes two to conspire

When I read this Reason post yesterday about a Federal District Court judge who ruled [PDF] that flashing headlights to warn oncoming traffic of a speed trap is Constitutionally protected behavior, I thought it fairly straightforward.

Then I came across this WaPo/Volokh Conspiracy post by uber-First-Amendment-law-prof Eugene Volokh, which sought to throw a wrinkle into the issue in that oh-so-insufferable-everything-is-complex-only-if-you-were-smart-enough-to-understand-it-way that this most recent generation of lawprofs has seen it fit to model themselves after1

Before we get to how I’m wrong and Volokh is correct, let me give you the facts. It went thusly:

In 2012, Missouri resident Michael Elli was pulled over and handed a $1,000 ticket for passing along just such a warning to motorists about a speedtrap [by flashing his headlights after observing a police car lying in wait]. While the charges were dropped, he promptly sued Ellisville, Missouri, for its speech-discouraging ways.

In ruling in his favor, the District Court judge wrote:

  1. No, not bitter at all.
  2. Training Day. Watch it.

Virginia prosecutors will do just about anything to execute Justin Wolfe (updated)

While everyone is enjoying that ridiculous lawyer ad, Justin Wolfe spent 10 years on death row, convicted of a murder-for-hire and sentenced to death. After the state courts upheld his conviction and dismissed his claims, he filed a petition for writ of habeas corpus in federal court. A federal judge reversed his conviction and found that he was actually innocent of the crime [PDF]1:

The prosecution’s case rested on the testimony of a single key witness, Owen Barber, who   admitted that he shot and killed the victim but told the jury that he had done so at petitioner’s behest. It was later discovered that prosecutors intentionally withheld exculpatory evidence that could have been used to impeach that testimony and prove   petitioner’s innocence.

In federal habeas proceedings, Barber fully recanted his trial testimony and the district court found that petitioner is actually innocent under Schlup v. Delo, 513 U.S. 298 (1995). It based that determination on an affidavit Barber had executed, swearing that petitioner had nothing to do with the murder; corroborating declarations from other witnesses to whom Barber had admitted his perjury at various times; and other significant evidence.

The intentionally withheld evidence was a police report about a meeting with Barber,

which show[ed] that before Barber said anything to the police about the crime,   Commonwealth officials threatened Barber with the death penalty if he did not testify that petitioner had hired him to commit the murder. Pet. App. 147a. The district court then held an evidentiary hearing at which Barber made clear that he testified falsely at trial because of the prosecutors’ threats. He also testified that petitioner had no involvement in the murder.

The biggest problem with Brady, as has been repeatedly stated, is the lack of any enforcement mechanism. Prosecutors are left to their own good will to determine what, if anything, is “exculpatory” and constitutionally required to be turned over.

But the wretched scum who prosecuted Wolfe are quite another breed:

  1. Most of the factual recitations are taken from his petition for writ of certiorari to the United States Supreme Court.