Good writing.  I took a seminar yesterday in appellate practice, which featured several sessions on brief-writing, accompanied by the usual bemoaning of the lack of quality writing among lawyers.  I agree with that criticism, although my own take is that one of the reasons lawyers don’t write better is because they spend so much time reading judicial opinions, which one commentator termed “the largest body of poorly written literature ever created by the human race.”  I found especially interesting some of the “do’s” and “don’t's”:  minimize use of the passive tense, use plain English, don’t spend a lot of time telling judges law that they already know, like what the standard is for determining insufficiency of the evidence.  The 8th District used to be notorious for issuing opinions which devoted paragraph upon paragraph to setting forth the law on insufficiency or ineffective assistance of counsel, although they’ve gotten much better about that; compare this opinion from last year, which devotes six paragraphs and the better part of two pages to the law on insufficiency, with these two — here and here — from last week, which happily dispense with all that legal mumbo-jumbo in a mere sentence. 

Of course, then you have judges who go off the deep end in the other direction, as demonstrated by the opinion described in this article, which begins,

Handguns and drug deals are frequent companions, but not good friends. Rip-offs happen. Shootings do too. Caveat emptor. Caveat venditor. People get hurt. People get killed. Sometimes, the buyer. Other times, the seller. That happened here.

That’s a bit over the top.  Then you have judges who think it’s cool to insert pop cultural references in their opinion, like this opinion by the Texas Supreme Court, which quoted from Star Trek II:  The Wrath of Khan.  If it’s the Beatles or Bob Dylan, that’s one thing, but you have to wonder if a hundred years from now some law students are going to be poring over an opinion and wondering, “Who the hell was Garth Brooks?”

And there certainly are times when judges can successfully venture outside the normal boundaries of judicial writing, such as the opinion in a custody case described in this article, where a Canadian judge spent 31 pages ridiculing the parents for using their 13-year-old daughter as cannon fodder in their continuing war against each other.   Blasting both sides — the father possessed “a near-empty parenting tool box,” while the mother gave the child “advanced animosity-tutoring” – the judge noted that he’d continued the trial for four months in the forlorn hope that the parties could resolve their problems through mediation, and concluded, “It is touching how a trial judge can retain his naivete even after 15 years on the bench.” 

A mind is a terrible thing, wasted or not.  Here’s how mine works.  I come across a story about a 6th Circuit decision which held that…  Well, the first paragraph of the opinion pretty much says it all:

The primary issue in this case is whether the appellee Premier Integrity Solutions Inc. (“Premier”) subjected the appellant Norman Norris to an unreasonable search in violation of the Fourth Amendment when it required him to provide a urine sample (for a drug testing) while directly facing a Premier employee. Premier used this “direct observation” method for monitoring the provision of the sample because of the ease with which persons giving a sample could otherwise evade the requirement of supplying a valid one. The district court held that Premier’s method of obtaining the urine sample did not constitute an unreasonable search in violation of the Fourth Amendment. We affirm.

Did I respond to this by engaging in the “individual interest in freedom/interests of society” analysis generally required for all rights?  Did I apply my own understanding of the 4th Amendment zone of privacy concepts?  No; my first thought was, “Gosh, what if you have trouble urinating when people are staring at you?”

There’s a name for this.  Lots of them, actually, from “bashful bladder” to “pee fright.”  It’s classified as a social phobia in the Diagnostic and Statistical Manual of Mental Disorders used by psychologists, but then again, so is breathing.  The actual medical term for it is paruresis.  (Tidbit for today:  Howard Stern suffers from it, but my guess is that, on the list of things that are wrong with him, that’s somewhere in the middle of page 2.)  So how does that fit in with drug testing?  Well, since 2005 Britain’s rules relating to the testing of those on probation explicitly cite paruresis as a valid reason for inability to produce a sample which is not to be construed as a refusal.

And this is where he ties it all together.  I got a lot of the information about paruresis from Wikipedia.  But here’s a brief-writing tip:  don’t use that as a source, especially an unattributed one, in your briefs.  Courtesy of Legal Blogwatch, we’re directed to the recent opinion in US v. Sypher, which contains the following footnote:

The court notes here that defense counsel appears to have cobbled much of his statement of the law governing ineffective assistance of counsel claims by cutting and pasting, without citation, from the Wikipedia web site. The court reminds counsel that such cutting and pasting, without attribution, is plagiarism. The court also brings to counsel’s attention Rule 8.4 of the Kentucky Rules of Professional Conduct, which states that it is professional misconduct for an attorney to “engage in conduct involving dishonesty, fraud, deceit or misrepresentation.” Finally, the court reminds counsel that Wikipedia is not an acceptable source of legal authority in the United States District Courts.

See you on Monday.

It’s fun to play the game, “What would I do with $14 million?”  Nice big house, nice new cars, vacations to exotic places, don’t have to work any more…  You can also play the game, “What would I do for $14 million.”  Lot of possible answers to that one, too, although I’m guessing that one of them isn’t “spend fourteen years on death row and come within a couple of weeks of being executed for a crime I didn’t commit, because prosecutors didn’t turn over evidence to my attorneys.”

That was John Thompson’s answer to the latter question.  As a result of that, a Louisiana jury gave him $14 million.  And last week, in Connick v. Thompson, the Supreme Court took it away. (keep reading…)

The law indulges in a great many fictions — the existence of the “reasonable man,” that criminal defendants are accorded a presumption of innocence, and that jurors who are instructed to disregard some piece of evidence will do so.  And then, of course, there’s the fiction that sex offender registration and notification laws are remedial, not punitive. (keep reading…)

Two weeks since I’ve done this, so a lot to catch up on.  The court provides some (slim) hope for those seeking to vacate a plea, tosses yet another search, bollixes an evidentiary ruling, and provides some schadenfreude for Yankees haters. (keep reading…)

Nothing like a week in the desert to rejuvenate one, especially one who usually gets less sunlight than the average vampire.  With batteries fully recharged, let’s take a look at the cases that came down in my absence.

The biggest was the Ohio Supreme Court’s decision in State v. Gingell, which involved the retroactivity of the Adam Walsh Act.  We’ll talk about in more detail on Wednesday.  In Disciplinary Counsel v. Stafford (oral argument discussed here, last paragraph), the court smacked Vince Stafford, bête noire of the Cleveland domestic relations bar, with an 18-month suspension, in accordance with the board’s recommendation, but modified that by suspending only six months, rather than twelve.   

Three opinions from down in DC.  The first, Cullen v. Pinholster, again addresses habeas corpus, the seventh decision this term to do so.  And, as in the previous six, the habeas applicant comes a cropper.  Pinholster had been sentenced to death, but argued in habeas that his attorney had been ineffective for not putting on evidence that Pinholster had suffered brain damage as a child.  The state courts had rejected the claim, but the Federal district court took additional evidence on the subject and came to a contrary conclusion, which was affirmed by the 9th Circuit.  In a 7-2 reversal, the Court held that the Federal courts were limited to the record provided to the state courts, and that record was sufficient to deny relief under the highly deferential standards for habeas.

The other notable case was Arizona Christian School v. Winn.  Over forty years ago, in Flast v. Cohen, the Court had held that taxpayers had standing to challenge a state expenditure on grounds that it violated the First Amendment’s Establishment Clause.  At issue in Winn was an Arizona law that gave individuals a dollar-for-dollar state tax credit on contributions to private groups which provide scholarships to private school students; the “private groups,” of course, are mostly giving out scholarships to parochial students.  The Court doesn’t reach the merits of the matter, deciding that tax credits are different from tax expenditures, and taxpayers contesting the former lack standing to do so.  The 5-4 decision earned a spirited dissent from newly-minted Justice Kagan, discussed more fully in this Atlantic article, rightfully noting that the effect of Winn is to eliminate taxpayer suits regarding religious expenditures, as long as state legislatures are bright enough to disguise the expenditures as credits.

In the courts of appeals… (keep reading…)

I’ve commented before that much of the defense bar’s protestation of the denial of their clients’ right to speedy trial is so much bluster.  Unless the defendant is in jail, he almost invariably benefits from delay:  witnesses die, move, or forget, and that makes it harder to prove the case against him.  There’s one problem with that analysis:  delay also gives him more time to screw up. (keep reading…)

When the judge takes the time to inform your client of all his rights, just like he was making a plea, it’s a pretty good hint that she thinks your client should make the plea.  While she was doing it, I couldn’t help wondering if she was right. (keep reading…)

This really isn’t a war story — well, not mine, anyway — but every now and then I go back and look at stuff that I’ve done here and think, “Yeah, I like the way I wrote that.”  Not many, but some.  This is one of those I liked.

On June 11, 2002, Don Krieger, Clifton Oliver, and Andrew Mendez went to an Indians game in Cleveland.  The Tribe beat the Philadelphia Phillies handily 5-1, with Bartolo Colon pitching eight strong innings, and Milton Bradley providing the the big blow with a 3-run homer in the 3rd.

That’s not why Krieger and Oliver will always remember that game, though. (keep reading…)

It’s not a bad case, as domestic violence cases go.  My client Jorge discovered that his 17-year-old daughter had gone to the homecoming dance with someone he’d forbidden her to see, so he slapped her a few times.  He’s got a couple priors, though, which makes this a 3rd degree felony. 

There are some facts which are not, shall we say, helpful.  Like that his daughter’s about 4’9″, and weighs maybe 90 pounds.  And she claims that the slaps caused her to bleed out of the corner of her eye.  Her glass eye.  Which replaced the one she lost to cancer when she was three.   No, I’m not making that up.

It’s a defensible case, though.  I can hold my own as a trial lawyer, but I don’t do it enough to be really good at it.  But if I can make a case about the law, I’m going to win most of the time, and I can make this one about the law.  Domestic violence normally requires only the infliction of “physical harm,” which can be something as insubstantial as a shove.  Back in State v. Suchomski, though, the Ohio Supreme Court held that a parent couldn’t be convicted for “proper and reasonable parental discipline.”

So my BFF Lexis and I spend an afternoon together, and we come up with some good stuff.  There’s State v. Hause, where the father punched his son in the face with his fist, leaving a “red mark.”  In State v. Adaranijo, daddy punched his 13-year-old daughter in the leg and lovingly threatened to “beat the shit” out of her.  And there’s State v. Wagster, where pops slapped his 12-year-old daughter with the back of his hand, causing her lip to blood, and turning it blue and swollen for several days.  In each case, the appellate court reversed a conviction for domestic violence, holding as a matter of law that this didn’t constitute a sufficient injury for a conviction of domestic violence.

I put that all together in a trial brief, and throw in a couple of cases, for comparison purposes, where the evidence was deemed sufficient.  My favorite there was State v. Dickson, where papa drop-kicked his three-year-old daughter about five feet.  Runner-up was State v. McClure, where the defendant threw his step-daughter over a couch, kicked her as she was lying on the floor, and then, when she ran outside, chased and tackled her and “began pounding her head on the ground three or four times” before dragging her back into the house.

Kids.  What’re you gonna do?

I’ve got some great law, and a good judge, but the problem is that Jorge wants a jury.  He wants to make this about whether he did the right thing.  I don’t; I want to make it about whether he committed a crime, and I certainly don’t want four or five people on a jury panel who think that even giving Little Susie a time-out pushes the parental-discipline envelope.

I finally convince Jorge to waive.  The girl testifies that he slapped her twice, then quickly elevates that to five or six times.  By the time I finish my cross, it’s up to thirty.   The detective’s next, and I know from previous pretrials that he’s got a real hard-on for Jorge, so I stay away from his main line, which is that Jorge wouldn’t let him meet with the daughter alone.  Instead, I focus on the fact that Cleveland cops were called out to the house the night of the incident, without anybody being arrested or taken away.  I take him through the training cops get in handling DV cases, through the injuries the girl claimed to have — scratches, bruises, the bleeding eye — then ask him whether it would’ve been proper procedure for a police officer who’d seen all that to leave the girl in the house, let alone not arrest the father.  What’s he going to say? 

Jorge wants to take the stand to tell his life story, but I talk him out of that, too.  The judge acknowledges my trial brief, and pointedly asks the prosecutors if they’ve got any law to the contrary.   They don’t. 

A week later, we’re there for the verdict, and the judge acquits Jorge, then suggests, off the record, that maybe he should get some anger management counseling.  Jorge tells him that he didn’t hear the whole story, but I assure the judge that he heard enough of it, and quickly hustle Jorge out of the courtroom.

Jorge still owes me a grand, which has been promised for about four months now.  He hands me a hundred and tells me I can trust him for the rest.  His trust is more limited; he wants a receipt.  He’s still moaning as I write him one.  “I’m not saying you did a bad job trying the case,” he tells me. 

I hand him the receipt, then walk out of the courthouse, warmed by the knowledge that Jorge doesn’t think I did a bad job for him, getting him acquitted.

Clients.  What’re you gonna do?

If you’re wondering whether Jorge ever paid me the rest of the money he owed me, you really don’t have a thorough understanding of criminal law.

I’m on vacation this week, so I’m recycling some of the war stories that have appeared here.  This is probably my favorite.

If you happen to need advice on how to prepare a jury in voir dire for the fact that your client’s a transvestite, I’m the go-to guy there. (keep reading…)