Friday, December 19, 2008

Defenders Make Short List for Green Bag's 2008 Exemplary Legal Writing Honorees

Things have been slow lately opinion-wise, but here's something to whet your legal reading appetite in the meantime (courtesy of How Appealing): the Green Bag's list of "Exemplary Legal Writing 2008" honorees.

The press release also includes a list of recommended reading, which just happens to include a piece from our fellow contributors at the Ninth Circuit Blog: Steven G. Kalar and Jon M. Sands, An Object All Sublime – Let the Punishment Fit the Crime, The Champion 20 (March 2008).

By the way, posting here will remain light until after the New Year. Enjoy the holidays!

Friday, December 05, 2008

Cert Tips

Got a good cert candidate? Afraid of botching the petition? Then check out "Petitions for Certiorari: Understanding the Hidden Process", a brief article featuring the advice of the SCOTUS Chief Deputy Clerk, two experienced SCOTUS advocates, and a former SCOTUS clerk.

One interesting thing the article mentions (which is also discussed in this Slate essay highlighted at How Appealing) is the importance of amicus briefs at the cert stage. Just how important are they? "Tremendously":
In Carter’s opinion, it is more important to have an amicus brief at the petition stage than on the merits, because it shows the issue is of importance to someone other than the litigants. Carter noted that as a petitioner, he always accedes to a request to file an amicus, even if in support of the respondent. Even a hostile brief shows that the case is important enough to warrant an organization spending time and money to oppose it.

There's even some helpful advice on the more mundane matter of when to file one's reply to a brief in opposition:
Chris also encouraged parties to quickly file their reply briefs in support of a cert. petition so that the pool memo writer will receive that brief in the same package from the clerk’s office that includes the petition and brief in opposition. Consider sending the Court a .pdf copy of any reply brief, because the off-site security screening process can cause delay. Alternatively, file the reply in the clerk’s office before 2 p.m. and in an open container, and the office will receive it the same day.

Now how can you not go read the whole thing?

Tuesday, December 02, 2008

Claim That Jury Instructed On Multiple Theories May Have Found Guilt On Invalid One Is Subject to Harmless Error Review

Hedgpeth v. Pulido, No. 07-544 (U.S. Dec. 2, 2008) (per curiam)

The opening paragraph of today's opinion from the Supreme Court sums up the decision tidily:
A conviction based on a general verdict is subject to challenge if the jury was instructed on alternative theories of guilt and may have relied on an invalid one. See Stromberg v. California, 283 U. S. 359 (1931); Yates v. United States, 354 U. S. 298(1957). In this case the Court of Appeals for the Ninth Circuit held that such an error is "structural error," requiring that the conviction be set aside on collateral review without regard to whether the flaw in the instructions prejudiced the defendant. The parties now agree that the Court of Appeals was wrong to categorize this type of error as "structural." They further agree that a reviewing court finding such error should ask whether the flaw in the instructions "had substantial and injurious effect or influence in determining the jury’s verdict." Brecht v. Abrahamson, 507 U. S. 619, 623 (1993) (internal quotation marks omitted). We agree as well and so hold.

Thus, a remand for the Ninth Circuit to conduct harmless error review.

Justice Stevens dissented, joined by Justices Souter and Ginsburg. They argued that the decision below should be affirmed because the Ninth Circuit in fact conducted harmless error review, notwithstanding that court's misuse of the term "structural error."

Additional analysis is available at SCOTUSblog and the Volokh Conspiracy.

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Monday, December 01, 2008

Fives Grant En Banc Review in Seale

United States v. Seale, No. 07-60732 (5th Cir. Sept. 9, 2008) (Davis, Smith, DeMoss), reh'g en banc granted (Nov. 14, 2008)

We (meaning I) neglected to cover this decision when it came out nearly three months ago, but you likely saw some of the news coverage of the case. Seale was indicted and convicted in 2007 for kidnapping and conspiracy to commit kidnapping, arising from his alleged involvement in the kidnapping and murder of two black men in 1964. The court of appeals reversed Seale's convictions, holding that the prosecution was time-barred because a 1972 amendment to the kidnapping statute retroactively reduced the statute of limitations from life to five years.

At the Government's urging, the court will now rehear the case en banc. But not everyone was on board with that decision, as shown by this very interesting dissent from Judge Smith:

I respectfully dissent from the decision to rehear this case en banc and vacate the panel opinion. Judge DeMoss, writing for the unanimous panel, has crafted a careful and convincing opinion. In its petition for rehearing en banc, the government has not shown that the panel erred or that this case meets the high standards for en banc consideration.

The fault for this court’s predicament lies squarely with the Department of Justice. Its delay of more than forty years in prosecuting defendant Seale for this despicable crime, of which he has finally been found guilty by a jury of his peers, is inexcusable. The government now asks this court to bail it out by declaring a result that cannot be reached except by a strained explication of the applicable statutes and caselaw.

The result of the government’s inaction under myriad Attorneys General is, to say the least, unfortunate. Because, as the panel held, Seale’s conviction is barred by the statute of limitations, Seale must be set free and cannot be successfully prosecuted for this unspeakable crime.

It is a necessary consequence of having a government of laws that wrongdoers at times must be released without further punishment. The decision to rehear this matter en banc reflects a misunderstanding of the proper function of the en banc process; the panel opinion should have been permitted to stand.

The rest of Judge Smith's dissent decries the court's decision to schedule oral argument for the May en banc session, rather than the January session, given the court's policy of expediting criminal appeals.

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Amendments to Federal Rules of Criminal Procedure Effective Today: Victims, Warrants, and Housekeeping

It's December 1st, and you know what that means: a new batch of amendments to the Federal Rules of Criminal Procedure take effect.

Most of the changes implement the dictates of 18 U.S.C. § 3771, otherwise known as the Crime Victims' Rights Act, including a new Rule 60 enumerating various rights of victims along with an enforcement mechanism. Rule 41 now contains expanded authority for magistrates to issue certain kinds of warrants. And Rule 45(c) is the recipient of a technical amendment correcting the cross-reference to Rule 5 of the Civil Rules.

Documents you may be interested in:
  • a more detailed summary of the amendments, courtesy of the Judical Conference's Committee on Rules of Practice and Procedure
  • a clean copy of the affected Rules with the amendments already incorporated (sorry, no redline)
  • various other documents from the December 1, 2008 amendment cycle, for all you Rules wonks out there

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