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Friday Night Links

Drafting and filing petitions without disclosing counsel’s involvement (“ghostwriting”) didn’t violate counsel’s duty of candor to the court, In re Liu, 2nd Cir. No. 09-90006-am, 11/22/11 (“we conclude that her ghostwriting did not constitute sanctionable misconduct … In light of this Court’s lack of any rule or precedent governing attorney ghostwriting, and the various authorities that permit that practice, we conclude that Liu could not have been aware of any general obligation to disclose her participation to this Court.” Caselaw  surveyed.) 

Speaking of candor to the tribunal, Kim v. Westmoore Partners, Cal. App. 4th Dist. No. G044216, 11/29/11: “The conduct of Timothy J. Donahue, Kim‘s counsel herein, which included seeking an extension of time to file his brief under false pretenses, and then filing a brief which was not just boilerplate, but a virtual copy of a brief for another case – including a boilerplate accusation of misconduct against appellants‘ counsel and a boilerplate request for sanctions based on a purportedly ―frivolous appeal – will not be countenanced. Donahue‘s response to this court‘s notice, informing him that we were contemplating the imposition of sanctions on our own motion, was both truculent and dismissive, going so far as to assert that we must have issued the notice in error. … Donahue‘s conduct on appeal was inappropriate in nearly every respect, and we hereby sanction him in the amount of $10,000.”

And: “maybe appellants think that if they ignore our precedents their appeals will not be assigned to the same panel as decided the cases that established the precedents. Whatever the reason, such advocacy is unacceptable. The ostrich is a noble animal, but not a proper model for an appellate advocate,” Gonzalez-Serv v. Ford Motor Co., 7th Cir. No. 11-1665, 11/23/11. Bit of push-back, here (including from the chastised attorney himself); and here (“The case against judicial snarkiness is simple. It sets a bad tone and it is unnecessary.”) At least no one references kangaroos. Marquette’s own Michael O’Hear says Judge Posner went too far in his criticism, by making the attorney a “laughingstock.” This Volokh commenter might disagree as to whether the criticism was undeserved: “if you are going to be foolish enough to flip the bird to someone like Judge Posner, you have nobody to blame but yourself when taught that Posner can flip back a bigger bird than you ever dreamed of.” Regardless of the particulars, as Steven Lubet’s “Bullying from the Bench” continues to remind more generally, the line between rebuke and abuse is easily crossed (“I agree that slipshod lawyering can be a problem. But in the end, an incompetent lawyer is far less dangerous than a judicial bully”), especially in lesser hands than Judge Posner’s.

Continuing the theme of candor and rules of ethics: The California supreme court will decide whether to admit to the bar the “disgraced journalist” Stephen Glass, Esq. (?). Book and movie sure to follow, regardless. For whatever it’s worth: Kevin Jon Heller, well-known expert in international law, unqualifiedly supports Glass’s admission to the bar.

Jeffrey L. Fisher, “The Bill of Rights Doesn’t Come Cheap” (re: upcoming argument in Williams v. Illinois, the confrontation clause and lab analyst testimony); Erwin Chemerinsky shares his thoughts, “The Latest Test on the Confrontation Clause.”

Thinking of starting your own blog? “Panel Admonishes Criminal Defense Attorney For Blog Naming Clients, Omitting Disclaimer.”

David E. Bernstein, “Brandeis Brief Myths” (the common wisdom “that he was champion of women’s rights … is hard to square with the outright sexism of Brandeis’s brief in Muller.”) Bonus link! “Federalist Society: Defending Individual Rights Against Progressive Reform” (Berstein and UW’s Victoria Nourse square off last month on Lochner, at the Madison Club).

Mary Margaret Giannini, “The Swinging Pendulum of Victims’ Rights: The Enforceability of Indiana’s Victims’ Rights Laws.”

Lindsay C. Nash, “Considering the Scope of Advisal Duties Under Padilla” (“This Article explains how the Padilla opinion provides direction on the scope of a defense attorney’s duty vis-à-vis non-citizen clients and argues that … defense attorneys must advise non-citizen clients as specifically as research allows in order to adequately inform them about the immigration consequences of contemplated criminal dispositions.”)

Wayne A. Logan, “Populism and Punishment” (“increasing reason now exists for the court—and state courts—to invoke ex post facto principles to rein in the proliferating reach and onerous effect of [sex offender] registration and community notification laws”).

Michael O’Hear, “Why Are Black Suspects More Likely to Give a False Confession Than White Suspects?

What? You came here looking for cases? OK, if you insist:

State v. Elliott, Iowa SCt No. 09-0633, 12/2/11: Detective’s testimony as to what he was told by an eyewitness was erroneous hearsay, notwithstanding limiting instruction that the testimony wasn’t for the truth of the matter but merely to explain how and why investigative focus shifted to Elliott. Good discussion as to hearsay limits on “investigative” background, albeit with exclusive attention to Iowa caselaw. A few cases from other jurisdictions canvassed in this prior post. It’s a recurring issue.

U.S. v. Powell, 4th Cir No. 08-4696, 11/14/11: Routine traffic stop, Powell (a passenger) gave no cause for alarm, but a record check showed him to have a suspended DL and “priors” for robbery – “Today, we once again are presented with a case in which the Government has attempted to meet its burden under Terry by cobbling together a set of facts that falls far short of establishing reasonable suspicion.” Contains discussion to effect that in most instances, prior criminal record isn’t alone enough to frisk. Similar, at least on this principle, State v. Buchanan, 2011 WI 49, ¶13 (“it is clear that an arrest record by itself would not, without more, support reasonable suspicion,” but in conjunction with other factors did permit frisk).

U.S. v. Sanchez, 9th Cir No. 10-50192, 11/1/11: “We hold that the prosecutor’s inflammatory remarks delivered at the end of his closing rebuttal argument were improper and prejudicial.” Sanchez argued that he was coerced by threats to his family to become a mule. The government responded: [W]hy don’t we send a memo to all drug traffickers … and say dear drug traffickers, when you hire someone to drive a load, tell them that they were forced to do it. Because … they’ll get away with it if they just say their family was threatened. …” Relief granted despite absence of objection, under plain error analysis. Category tag: “prosecutorial misconduct –> send-a-memo error”. Possible training material on when not to send a memo, here.

People v. Rivera, Cal App No. A130421, 11/30/11: Massage, escort and (redundancy alert!) sexual services advertised on Craigslist. What could possibly go wrong? Not the usual, as it turns out; at least, it took awhile before Rivera strangled the victim. Tried for the murder, he denied intent to kill. In a moment of sheer inspiration, the prosecutor said that he’d “portray the victim, and take defendant through the act of strangulation.” Rebuffed by the judge, “the prosecutor returned to court with a female mannequin wearing a blue dress, a pink ribbon, and hat” for use as a demonstrative tool. Defense counsel objected, but after the judge “urged defense counsel to ‘disrobe her’ and ‘take off the hat,’ the hair, and the pink ribbon,” the demonstration proceeded, with Rivera “‘led’ by the court or prosecutor on what to do during the courtroom demonstration.” Hard to imagine what the jurors might have been thinking. (Randy Newman, “You Can Leave Your Hat On”? Yes, that would be tasteless, which is exactly the point: this was a demonstration of nothing but tastelessness.) The Court of Appeal holds that the demonstration was cumulative, in light of sufficient evidence anyway of Rivera’s mental state, besides which didn’t have probative value given dissimilarities between recreation and alleged crime. Not probative and inflammatory – but the trifecta eludes Rivera, the error deemed non-prejudicial. Category tag: “prosecutorial misconduct –> mannequin-strangling error”.

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