Tuesday, January 23, 2018

Tenth Circuit oral-argument audio now online

Are you partial to the dulcet tones of lawyers and judges whilst you wash your dishes, perform your ablutions, or take your daily exercise? Then you are in luck. The Tenth Circuit is now posting audio recordings of all of its oral arguments online. You can access the links from the Opinions tab on the Circuit's home page:

Not sure what to listen to? Check out Issues Pending or the Oral Argument Calendar links on our home page to find out which cases are about issues important to you and your clients.

Happy Listening!

Sunday, January 21, 2018

Court to government: Tend to your own knitting

The prosecution's effort to bump defense counsel from a federal case drew sharp criticism from the Ninth Circuit in the recent case of United States v. Wells, ___ F.3d ___  (No. 14-30146) (9th Cir. Dec. 19, 2017). In Wells, the government unsuccessfully opposed the appointment of a second defense counsel in a death-eligible case. After the government decided not to seek the death penalty, it asked the magistrate court to remove the second counsel. In response, the Federal Public Defender argued that both counsel should continue as both had established a relationship with the client and both had invested a great amount of time and effort in defending the case. Removing counsel would leave an already overworked FPD at a great disadvantage against the three-attorney prosecution team. The magistrate judge, though, sided with the prosecution, leaving the defendant with one attorney.

On appeal, the Circuit soundly chastised the government, making clear that the prosecution had no business interfering with the defendant’s representation. “The Government’s decision to insert itself into the important determination of Wells’ fair representation carries with it a reproachable air of stacking the deck, for which we cannot offer tacit acceptance.”  The Court described the process appointing defense counsel under the Criminal Justice Act, and noted that the prosecution is generally precluded from participating in the determination of eligibility of counsel and related functions. This includes case budgets, requests for expert services, and expense reimbursement claims. “The Government’s exclusion from the administration of the CJA is a significant contributing factor to the fairness of our system and the CJA’s role in redressing the imbalance of power between an indigent defendant and the government.”

Although the magistrate judge’s decision to remove one of the defense attorneys did not rise to the level of reversible error, the Court advised the government to, in the future, “tend to its own knitting.”

-- Laura Shaneyfelt, CJA Resource Attorney
District of Kansas FPD

Wednesday, January 3, 2018

Third-party-notification condition unduly vague

Condition 12 of the standard conditions of supervised release adopted in Kansas (D. Kan. Standing Order No. 16-2, tracking USSG § 5D1.3(c)) provides:
If the probation officer determines that you pose a risk to another person (including an organization), the probation officer may require you to notify the person about the risk and you must comply with that instruction. The probation officer may contact the person and confirm that you have notified the person about the risk.
Last month, the Sixth Circuit agreed with the pro se appellant in United States v. Sexton that this condition is unconstitutionally vague, joining the Seventh Circuit, which held in United States v. Thompson, 777 F.3d 368, 379 (7th Cir. 2015), that this condition is "riddled with ambiguities." Exactly what sorts of risks must be disclosed to what third parties?

Object to this condition. Otherwise, your client may end up like Mr. Sexton, whose probation officer concluded that he was required to disclose all of his romantic liaisons, so that the officer could notify Sexton’s partners of his federal conviction. Not the best start to a relationship.

Image result for risk warning

Monday, January 1, 2018

Trial Skills: Book Reviews

With the new year, some of us are making resolutions, like we will read more. We have gift cards or holiday money that we need to spend. It is too cold to go outside. And . . . we should expect to see more trials in 2018. With that, here are a few book recommendations:

Images With Impact: The Design and Use of Winning Trial Visuals, by Kerri L. Ruttenberg. Our jurors learn and remember more when information is received visually as well as aurally.  This is not a book about PowerPoint, but the "benefits of visual communication and the graphic design techniques that make our visuals more effective."

Trial in Action: The Persuasive Power of Psychodrama, by Joane Garcia-Colson, Assistant Federal Public Defender Fredilyn Sison, and Mary Peckham. "This book is intended for practicing attorneys." Not wild about the term psychodrama, but it is really just a method of credibly and effectively communicating your client's defense to a jury. It provides concrete and creative instruction on how to try the most challenging cases.

The Fearless Cross-Examiner: Win the Witness, Win the Case, by Patrick Malone. This book's approach might surprise you--it is not about going for the dramatic kill on cross, but how to comprehensively build your case through cross. Aaron Nelson recommended this book when he spoke at our October CLE on cross-examination (if you missed him, check out his materials on our website).

Not just for writers, Bryan Garner's Making Your Case (a book you must own) provides an excellent list of books under Recommended Sources, including topics like Modern Guides to Classical Rhetoric, Public Speaking, and Logical and Critical Thinking.

Read away.