Best of the Worst. I've mentioned that last week I attended a seminar on appellate practice, where we received instruction on how to craft the winning brief. The materials for one writer indicated that following those instructions would be the difference in winning 20% of your appeals, as is the average, and winning 51%, which is what he'd managed. Another way of keeping your winning rate well north of that of the Lebron-less Cleveland Cavaliers is to not take assigned appeals, as the writer apparently didn't. That 51% is going to plummet once you start trying to explain to a stone-faced appellate panel why the jury should have been allowed to consider your client's intoxication as a defense to his handcuffing and repeatedly anally raping his former girlfriend.
Another way of trying to maintain a winning appellate record is, if you have a case like that, not starting out the brief with this quote:
Don't worry about it... Like he said, we all do dumb shit when we're fucked up.
Now, you're thinking, Gosh, I don't remember that from Blackstone's Commentaries. Nor does it seem like the thing that Holmes or Brandeis or Scalia would have put in an opinion. You're right; a footnote in the brief rightly attributes the quote to that noted legal scholar Mike Tyson, from the movie The Hangover.
As might be guessed, using a quote from someone who himself had been convicted of rape didn't impress the court. The Montana Supreme Court's opinion, which can be read here, finds the remainder of the brief "needlessly graphic and offensive," recounts the actual facts, then concludes that
Appellate counsel's attempts to sugarcoat these shocking events as just one of Belanus and T.C.'s typical date nights that went "horribly awry" gives pulp fiction a bad name. His story is as delusional as it is unbelievable, and it is not surprising that the jury didn't buy it.
The court affirmed the defendant's life sentence, but the lawyer did win something: the general consensus among the legal blogosphere -- here and here, for example -- that this is the worst brief ever.
Or not; here's an unpublished 1st Circuit case which summarily affirms a denial of a petition for asylum because of the failings of the appellate brief, to-wit:
The brief filed by petitioners' counsel, Yan Wang, is a "cut and paste" affair that appears to present the facts of another case -- notably for a person of a different gender than [petitioner], who had different experiences, in different years, and appeared before a different immigration judge.
My personal favorite, though, was a brief filed in a 9th District case several years ago which contained, as the second assignment of error, "IN VIOLATION OF DUE PROCESS, THE GUILTY VERDICTS ON THE BUGLERY AND ASSULT WERE ENTERED AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE." Problem No. 1 was the misspellings. Problem No. 2 was that it was a drug case; there were no charges, let alone convictions, of burglary or assault. Problem No. 3 was the court realized, and noted, that appellate counsel had lifted the assignment of error verbatim, misspellings and all, from another appeal she'd done in the same court just a month before. At least that case involved a burglary and an assault, but Problem No. 4 was that the defendant in that case had been acquitted of the burglary. Er, buglery.
Discovery Update. A couple of months back, I wrote a post about State v. Biro, an 8th District case in which the court had upheld the defendant's conviction for aggravated vehicular homicide, and also concluding that the trial court hadn't erred in excluding the testimony of the defendant's expert witness. The "expert" was the detective who'd arrested the defendant; on cross-examination, the defense had qualified the detective as an expert, and then gotten him to give testimony favorable to the defendant. The 8th affirmed the judge's exclusion of the testimony because the defense hadn't provided an expert report. I noted the difficulties of obtaining an expert report from the opponent's witness, and confidently predicted that the Supreme Court would take in the case, in light of the requirements under the new discovery rules that each side provide the other with expert witness reports at least 21 days in advance of trial.
As further confirmation of my prognosticative abilities, earlier this week the court declined to hear Biro, by a narrow 7-0 vote.
But if the Supreme Court isn't going to hear that case, it's likely that sooner or later they're going to have to step in and decide some cases involving the new discovery rules, because Hamilton County Prosecutor Joe Deters has pretty much declared open war on them.
It stems from a case last year, in which a murder defendant learned the name of the state's key witness through discovery; the defendant's brother and friend used that information to track down the witness and kill him. Since then, Deters has refused to disclose witnesses in homicide cases until trial. In fact, "until trial" is interpreted loosely; one defense attorney got a list of eleven witnesses after the jury selection was completed.
And the problem goes well beyond homicide cases. It's been extended to other violent crimes, and the office has apparently adopted a policy of refusing to offer plea bargains in drug cases where the defense attorney demands discovery.
The concern over witness protection is certainly legitimate, and there are other questions which arise with the new discovery rules. Police officers often wind up testifying as expert witnesses on one subject or another, sometimes without the expectation that they will do so. Does this mean that the prosecutor should submit a CV and report for every police officer he anticipates calling? When's the due date for discovery from the defense? Is there a different date for mitigation discovery in a capital case? Why aren't there any standards for determining when the "counsel only" designation is to be used, what's the sanction for abusing it, and what's the sanction for a defense attorney's violating it?
It may be that some of these questions will be resolved by agreement between the defense bar and the prosecutor's association, and it may be that the some changes to the rules will be necessary. I'm hoping for the former, but fearing for the latter. Some prosecutors' offices have taken to stamping every discovery document they provide with the "counsel only" designation, which prevents the defense attorney from giving the document to anyone else. It does permit the attorney to "orally communicate" the contents to his client, but Deters is claiming that this does not permit the verbatim reading of the contents. If someone can argue distinctions like that with a straight face, there hopes for compromise are dwindling.