Machinery of Death

From this day forward, I no longer shall tinker with the machinery of death. For more than 20 years I have endeavored–indeed, I have struggled–along with a majority of this Court, to develop procedural and substantive rules that would lend more than the mere appearance of fairness to the death penalty endeavor. Rather than continue to coddle the Court’s delusion that the desired level of fairness has been achieved and the need for regulation eviscerated, I feel morally and intellectually obligated simply to concede that the death penalty experiment has failed. It is virtually self evident to me now that no combination of procedural rules or substantive regulations ever can save the death penalty from its inherent constitutional deficiencies. The basic question–does the system accurately and consistently determine which defendants “deserve” to die?–cannot be answered in the affirmative.

--Harry Blackmun in dissent in Callins v. Collins, emphasis added

Judges' Top Ten Pet Peeves

I came across the following list, originally published in the Jacksonville Lawyer Magazine in 2007, that outlines judges' various pet peeves.  It is unclear how they compiled the list but it is informative nonetheless:

1. Promptness
• When lawyers are late to court or unprepared.  It "delays the train schedule."
2. Failing to Identify Yourself
• Beginning your argument in court without first identifying yourself, who you are representing, and the motion under consideration.  Even a judge's best friend should go through the ritual.
3. Forgetting to Inform the Judge or JA
• Faxing or electronically filing a motion to opposing counsel the night before an early morning hearing without providing the judge with a courtesy copy.
• Failing to provide the judge with a courtesy copy of an "emergency motion" in state court.
• Failing to notify the judge's JA that a case has been resolved, especially when it affects the court's calendar, so that someone else can be given time.
4. Providing Incomplete Information
• Sending or dropping off a proposed order with no cover letter, no identification of the hearing that it relates to and/or failing to mention whether the proposed order was run by opposing counsel prior to submitting it to the court.
5. Improper and Unprofessional Manners at Court Appearances
• Speaking over each other or over the court.
• Continuing to argue after a ruling is made.
• Reacting emotionally to a ruling, as if an adverse ruling were a personal affront.  It is not.  "If, for some reason, the case is indeed personal to you, you are too close to the issue to be the attorney for the client."
• Using sarcasm in arguments and comments to each other or to the court.
• Directing your arguments to each other rather than to the court.
• Making improper or distracting gestures.
• when litigants, witnesses or lawyers in chamber and courtrooms:
• chew gum.
• dress inappropriately.
• dress informally or sloppily.
• fail to turn off their cell phones.
• set a drink/cup on the podium in court.
6. Ineffective Presentation of Argument
• Failing to answer the question posed by the judge.  "Oftentimes, a lawyer is so busy thinking about what he is going to say next, he forgets to listen to the question being asked."
• Making arguments irrelevant to the analytical framework at issue.
• Poorly drafting motions.  "They tend to suffer."
7. Disparaging Another Lawyer Before the Judge
• Sending the judge copies of letters about their complaints toward each other and, likewise, airing personal arguments about each other in front of the judge.  A lawyer must not disparage another lawyer in front of the judge.
8. Failing to Confer or Agree with Opposing Counsel
• Failing to "confer" with opposing counsel regarding attempts to resolve discovery matters prior to setting a hearing on a motion to compel.  It is inappropriate to send letters to the judge indicating that counsel has conferred when, in fact, it is evident that no attempt was made to confer as required.
• Agreeing to an amount of attorney's fees at a hearing, but later sending a proposed order reflecting a different amount, with a cover letter claiming that copy was sent to opposing counsel.  This is not proper notice.
• When jurisdiction is reserved in a QUADRO and a lawyer appears ex parte, it is improper to request the judge to enter an order prior to the parties' agreement and without their signatures confirming that they have agreed.
9. Failing to Limit Discovery in Accordance with the Rules
• Failing to limit discovery requests more precisely as to time, scope, and the appropriate number of questions.  A lawyer should avoid being over-broad or vague.
• Only ask for what you are entitled to, and only object to things that you are not required to provide.
10. Using Improper Verbiage in a Proposed Order
• Submitting a proposed order on a matter that did not require a hearing, yet reciting in the proposed order that the manner "came to be heard" when it actually never did.

The same issue published a "Lawyers' Top Ten Pet Peeves" I will post soon.

Felon Grand Juror Spoils Indictments

Interesting story out of Savannah, Georgia, where a felon sitting on a Chatham County grand jury has nullified 95 returned indictments.  Here is the full story, pulled from Jacksonville.com

Prosecutors in Chatham County will have to take as many as 95 felony cases to a grand jury for a second time because a convicted felon was on the panel that issued the initial indictments.

The Savannah Morning News reports that Georgia law bars convicted felons from serving on grand or trial juries unless their civil rights have been restored.

At issue are cases that involve felony indictments returned since December.

Chatham Count’s chief public defender, Michael Edwards, said public defenders this week are filing motions in Superior Court to dismiss those charges. About 40 such motions had been filed as of Friday.

The Morning News reports that additional challenges are anticipated from private defense lawyers.

United States Supreme Court Activity

Missouri v. McNeely

Docket: 11-1425	Opinion Date: April 17, 2013
Judge: Sotomayor
Areas of Law: Civil Rights, Constitutional Law, Criminal Law

McNeely, stopped for speeding and crossing the centerline, declined to take a breath test to measure his blood alcohol concentration (BAC). He was arrested and taken to a hospital. The officer never attempted to secure a search warrant. McNeely refused to consent, but the officer directed a lab technician to take a sample. McNeely’s BAC tested above the legal limit, and he was charged with driving while intoxicated. The trial court suppressed the test result, concluding that the exigency exception to the warrant requirement did not apply because, apart from the fact that McNeely’s blood alcohol was dissipating, no circumstances suggested that the officer faced an emergency. The Missouri Supreme Court and U.S. Supreme Court affirmed. The Court looked to the “totality of circumstances,” declining to announce a per se rule. When officers in drunk-driving investigations can reasonably obtain a warrant before having a blood sample drawn without significantly undermining the efficacy of the search, the Fourth Amendment mandates that they do so. Circumstances may make obtaining a warrant impractical such that dissipation will support an exigency, but that is a reason to decide each case on its facts. Blood testing is different in critical respects from other destruction-of-evidence cases; BAC evidence naturally dissipates in a gradual and relatively predictable manner. Because an officer must typically obtain a trained medical professional’s assistance before having a blood test conducted, some delay between the time of the arrest and time of the test is inevitable regardless of whether a warrant is obtained. 

View Case On: Justia  Legal Information Institute  Google Scholar

Florida jail "unfit for human habitation"

A story from jacksonville.com reports that Atkinson County grand juries have consistently found the county jail needs repair.  This time around they are calling for its demolition:

Atkinson County grand juries have said since 2006 that the county needs a new jail. The current grand jury is the first to say the jail is unfit for human habitation and call for its demolition. “That’s the first time they’ve put it so bluntly,” Sheriff David Moore said. The 18-bed jail has cell doors that are extremely hard to open and close after years of welding on patches. There is raw sewage on the floor at times, and the sheriff and others have described the lighting as almost non-existent. The grand jurors issued the jail inspection committee report April 1 and urged the County Commission to address the issue at its next meeting and come up with an immediate solution.

Read the full story here.

Lawyer Has Final Say on Witness List

Interesting holding from Florida Supreme Court:

Puglisi v. State 

Defendant was convicted of first-degree murder and robbery with a deadly weapon. Defendant appealed, arguing that the trial judge erred in refusing to allow Defendant to call a witness despite defense counsel's determination that calling the witness would not be of benefit to Defendant's case. The Fourth District court of appeal held that determining which witnesses should be called by the defense is not a fundamental decision to be made by the defendant himself, and therefore, the trial court did not err in its judgment. The Fourth District subsequently certified conflict with the Fifth District's decision in Cain v. State. The Supreme Court (1) approved the decision of the Fourth District in this case and disapproved the decision of the Fifth District in Cain, holding that defense counsel has the final authority as to whether or not the defense will call a particular witness to testify at the criminal trial; and (2) receded from its decision in Blanco v. State to the extent it held that the ultimate decision rests with the defendant as to the presentation of witnesses. 

View Case On: Justia  Google Scholar 

11th Circuit Activity: More FSA Fallout

United States v. Hinds

Judge: Per curiam
Areas of Law: Criminal Law  Opinion Date: April 9, 2013

Defendant was convicted of conspiring to possess with intent to distribute 50 grams or more of cocaine base and was sentenced following his conviction. Defendant was resentenced after the court vacated his original sentence upon finding that the drug amount attributed to him for sentencing purposes was too speculative and remanded to the district court for resentencing. The district court then imposed a sentence of 120 months and defendant appealed. The court agreed with defendant and the government that the Fair Sentencing Act (FSA), Pub. L. No. 111-220, 124 Stat. 2372, applied to defendants whose offenses occurred prior to August 3, 2010, the date on which the FSA took effect, but who were resentenced after August 3, 2010. The court held that there was no meaningful difference between an initial sentence and a resentencing post-Act, and that the FSA applied in both cases. Accordingly, the court vacated defendant's sentence and remanded to the district court for resentencing.

View Case On: Justia  Google Scholar