January 15, 2011
Going Into Withdrawal: Western District Of Kentucky Finds Evidence Related To Plea Withdrawal Indamissible Under Rule 410
Federal Rule of Evidence 410 states in relevant part that
Except as otherwise provided in this rule, evidence of the following is not, in any civil or criminal proceeding, admissible against the defendant who made the plea or was a participant in the plea discussions:
(1) a plea of guilty which was later withdrawn...
(3) any statement made in the course of any proceedings under Rule 11 of the Federal Rules of Criminal Procedure or comparable state procedure regarding either of the foregoing pleas....
Meanwhile, Federal Rule of Criminal Procedure 11(f) states that
The admissibility or inadmissibility of a plea, a plea discussion, and any related statement is governed by Federal Rule of Evidence 410.
So, let's say that a defendant pleads guilty pursuant to a plea agreement. Then, under the advisement of new counsel, the defendant moves to withdraw her guilty plea, supplying an affidavit supporting the withdrawal of her guilty plea. Thereafter, a hearing is held to examine the withdrawal of her plea, with the defendant testifying as to her innocence and offering a recently discovered letter. If the court allows the defendant to withdraw her guilty plea, should the prosecution be able to admit the defendant's affidavit, testimony, and/or letter at the ensuing trial? According to the recent opinion of the United States District Court for the Western District of Kentucky in United States v. Young, 2011 WL 96627 (W.D.Ky. 2011), the answer is "no."
In Young, the facts were as states above, with Tanashea Young being the defendant charged with thirty-one counts of mail fraud in connection with her operation of a child-care facility. In deeming her affidavit, testimony, and letter inadmissible, the Western District of Kentucky initially noted that "neither Rule 410 nor Rule 11 explicitly discusses whether evidence offered at a withdrawal of plea hearing should be excluded." That said,
After reviewing the rules' language, their legislative histories, and the relevant precedent, the Court f[ound] that the evidence Young offered in her withdrawal of plea hearing [wa]s not admissible in Government's case-in-chief. First, Rule 410 is clear that "any statement made during the course of any proceeding under Rule 11 of the Federal Rules of Criminal Procedure" is not admissible....Under Rule 11(d), a defendant does not have an absolute right to withdraw a plea of guilty; in fact, a criminal defendant that has voluntarily entered a guilty plea and then later moves to have it withdrawn must show "fair and just reason for requesting the withdrawal."...Therefore, a Rule 11 hearing to determine whether a defendant has just cause to withdraw a plea of guilty qualifies as a "proceeding" protected under the language of Rule 410. In addition, section three of Rule 410 is written in broad language, excluding "any statement"; that the disputed items are exculpatory rather than inculpatory is therefore irrelevant to this analysis. Finally, as the Court requested the parties submit briefs in advance of the proceeding, Young's affidavit would also be considered a statement during the Rule 11 proceeding. For these reasons alone, the language of the rules will not permit Government to employ any of these items in its case-in-chief.
January 14, 2011
AALS Poster Project: Kathy Cerminara's Improving Access to Hospice Care for Hispanic and African-American PatientsProfessor Cerminara is a professor at the Nova Southeastern Law Center, where she teaches The Law of Managed Health Care, Torts, Civil Procedure, Administrative Law, a Law and Medicine Seminar, and other health-law-related courses. She also created, was the initial director of, and teaches in the online Master of Science in Health Law program for non-lawyers. Her scholarship focuses on patients' rights in the managed health care system.
According to Professor Cerminara, her poster
is a visual depiction of the thesis in La Caja de Pandora: Improving Access to Hospice Care Among Hispanic and African-American Patients, 10 Houst. L. & Pol'y 255 (2010), which I co-wrote with Alina Perez (name on poster as well). You can see a pre-publication draft on my SSRN page at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1533532....
This is part of a line of articles I have published about the law governing hospice care, specifically the false dichotomy present in Medicare statutes and regulations requiring waiver of benefits for curative treatment for the terminal illness in order to receive coverage of the palliative treatment of hospice care. In fact, the name is a version of the first piece in the series, Pandora's Dismay: Eliminating Coverage-Related Barriers to Hospice Care, 11 Fla. Coastal L. Rev. 107 (2010) (part of a therapeutic justice symposium) and available in pre-publication format at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1470326....
The Patient Protection and Affordable Care Act (PPACA) authorized Medicare demonstration projects to test the coverage model I suggested in the first article and for which I, with Professor Perez, reinforced the need in the second. See http://www.aslme.org/Society_Scholars. In its aftermath, my most recent piece has analyzed this change in hospice payment policy, as well as an additional one implemented by PPACA as well. See Hospice and Health Care Reform: Improving Care at the End of Life, 16 Widener L. Rev. ___ (forthcoming 2011), pre-publication draft available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1694196.
All of this is part of a long line of end-of-life decisionmaking work, as you can see from my faculty bio, http://nsulaw.nova.edu/faculty/profiles/index.cfm?ID=18, and my SSRN abstract page, http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=145233.
Some of this end-of-life decisionmaking work includes:
-Dealing with Dying: How Insurers Can Help Patients Seeking Last-Chance Therapies (Even When the Answer is 'No'), 15 Health Matrix, 285 (2005); and
-Therapeutic Death: A Look at Oregon's Law Legalizing Physician-Assisted Suicide, 6 Psychol. Pub. Pol'y & L. 503 (2000);
January 13, 2011
AALS Poster Project: Joyce Savio Herleth's Three Steps to Perfect Registration Advising
Professor Herleth is a professor at the Saint Louis University School of Law, where she teaches Fundametals of Law and Legal Methods and has been the Director of the Office of Academic Advising (formerly the Office of Academic Support) since 2000. Professor Herleth provides students with the assistance and support they need to achieve success during their rigorous law studies. Through her courses and weekly workshops, she helps students acclimate to the legal learning environment. Professor Herleth meets with students individually or in small groups to discuss academic issues. On the SLU LAW Web site, she offers students guidance on everything from taking the bar exam, to class preparation, to focused briefs, to journaling research. She also has many powerpoints and podcasts available for students.
According to Professor Herleth,
I created this poster because too often upper division law students select law courses in a rather haphazard fashion. Often the convenience of the schedule becomes substantially more important than the necessity of the courses. Likewise, persons giving registration advice to the law student population tend to be general or overly vague. However, as law students are not generic; neither should our advice.
The poster, Three Steps to Perfect Registration Advising, focuses on three areas which should be considered when discussing registration and law electives. The first category an advisor should consider is the student’s strength, study skills and overall ability. An academically strong student might need relatively little guidance in choosing courses, because that student understands legal analysis and has shown a past record of achievement. On the other hand, a student who is struggling academically may need more assistance in creating a schedule that has rigor but allows the student to continue to learn how to legally analyze the law. The advisor will need to consider when that student performs best as well as which style of instruction seems best suited. Secondly, consideration of the professors’ presentation style plays a part in this process. Again, the weaker academic student may better process the course if it is presented in a style that student prefers. Given a choice between methods of instruction can result in an improved ability to learn. Finally, law school courses should not be selected in a vacuum. While a student’s future interests are important, ultimately a student must pass a bar examination to become a licensed professional. Advisors need to be cognizant of that fact when making suggestions. Again the stronger student might be able to skip a number of “bar” courses, while a weaker student (or one that wishes to have a general practice) might consider taking more.
Registration is an opportunity for ASP and other advisors to help students select courses that will benefit them both while in law school and after they graduate. This poster is a reminder of the necessary steps for a good registration result.
January 12, 2011
AALS Poster Project: Courtney Lee's Bringing Academic Support to Life with Technology
Professor Lee is the Director of Academic Success and a Lecturer in Law at the University of the Pacific, McGeorge School of Law, where she teaches Principles of Agency and Practical & Persuasive Legal Writing. She also runs and teaches in the school's First Year Skills Hours Program. In addition, she is the Co-Director of the Western Association of Academic Success Professionals.
Professor Lee is the Co-Editor (with Timothy Naccarato) of Cases and Materials on Principles of Agency, 2010 edition and the Editor of Practical and Persuasive Legal Writing Case Materials (2009). She is also the author of Find Them on Facebook: Using Facebook to Reach Students Where They Already Go, The Learning Curve, Fall 2009.
She gives the following description of her poster:
This Poster describes several methods by which I have successfully incorporated technology into my Academic Support Program. First, Facebook has revolutionized my bar support efforts by allowing me to reach students where they already go, as opposed to using email, printed flyers, and other less effective means of communication. I am now able to post advice, information, media, links, and events all in one place that students visit regularly and voluntarily. Students also seem more willing to reach out to me through Facebook than they are by email or phone.
Second, using a blog in conjunction with Facebook allows me to reach students who do not have a Facebook account. It also enables me to post text with more formatting, making longer posts easier to read and key ideas easier to highlight. Blog posts are also easily linked to Facebook.
Third, YouTube's Annotations software makes linking between videos fast and easy. For example, I used it to create a multiple choice question video: students viewed the question video, and then clicked on one of four possible answers (themselves each linked to a different video). The students were then directed to an answer explanation video; and if they chose an incorrect answer, they could click a link taking them back to the question so they could try again. If they chose the correct answer, they could click a link taking them to the next question. This is only one example; there are countless other potential applications of this software, and conveniently, YouTube videos can be shared through both Facebook and blogs.
Finally, Google Docs allows groups of people to edit the same electronic document in real time. This is especially helpful in explaining IRAC and written organization. For instance, a professor uploads a poorly-organized exam answer into Google Docs. The professor can then guide a group of students as they take turns editing the answer and discussing those edits, which immediately appear on all users' computers. When finished, the professor can then save the final product in .pdf format, upload it to his or her blog, and share the link through Facebook. In addition to adding interactivity to a classroom experience, this software can also enhance a distance learning program."
January 11, 2011
AALS Poster Project Leah Chan Grinvald's Shaming Tradema®k Bullies
Professor Grinvald is a professor at the Saint Louis School of Law, where she teaches Contracts II and Trademark & and Unfair Competition. Previously, she was global corporate counsel at Taylor Made Golf Company, Inc., where she advised on a variety of legal issues including trademark, copyright, contract and employment law. Previously, Professor Grinvald was a corporate associate with Latham & Watkins LLP and Clifford Chance US LLP.
Her publications are:
-Making Much Ado About Theory: The Chinese Trademark Law, 15 Mich. Telecomm. & Tech. L. Rev. 53 (2008);
-A Year in the Life of Indiana Corporate Law, 35 Ind. L. Rev. 1321 (2002); and
Book Annotation, 32 N.Y.U. J. Int’l L. & Pol. 829, 854 (2000) (Reviewing George Peffer’s If They Don’t Bring Their Women Here (1999))
According to Professor Grinvald,
My poster provides, in a nutshell, the argument I make in my current project, Shaming Trademark Bullies. Trademark bullying of small businesses and individuals has become a serious problem, which Congress recognized when it commissioned a study and report on the issue in the Trademark Technical and Conforming Act. I make the argument that small businesses and individuals need non-legal tools with which to defend themselves against trademark bullying, along with legal tools. My project proposes that shaming trademark bullies can be one effective tool. In addition, my project makes several suggestions for legal reforms that can assist in making shaming of trademark bullies more accessible and effective, including providing protected spaces for shaming, adopting a "groundless threats" trademark infringement cause of action and promoting responsible shaming.
January 10, 2011
AALS Poster Project: Nicole Chong's How the 1L Legal Analysis and Writing Course Can Bring the "Real World" of Law Practice to the Classroom
Professor Chong is a Professor and the Director of the legal writing program at the Penn State University Dickinson School of Law, where she teaches Legal Analysis, Research & Writing I & II. She is also an active member of the Legal Writing Institute and the Association of Legal Writing Directors. Previously, she was an associate with Klett Rooney Lieber & Schorling in Philadelphia, where she practiced in the area of commercial litigation and was involved in a variety of matters, including representing a major international telecommunications carrier in collection matters, a local manufacturer and retailer of fashion accessories in patent infringement litigation, as well as local and national companies in contract and tort litigation.
Professor Chong's publications include "'Trade Dress' Protection: The Standard After Two Pesos," co-authored with James L. Griffith, Esquire, and "The Child Support Recovery Act of 1992 - Is the Federal Government's Involvement in the Criminal Enforcement of Child Support at an End After United States v. Lopez?" 101 DICK. L. REV. 417 (1997).
Here is the abstract of her poster:
AALS January 2011 Poster Presentation Abstract
How the 1L Legal Analysis & Writing Course Can Bring the “Real-World” of Law Practice to the Classroom
Nicole Raymond Chong
Director, Legal Writing
Penn State's Dickinson School of Law
Why do students come to law school? Well, the simple answer is that students typically come to law school with the primary goal of learning to be a lawyer. But, what more specific expectations do students have? Students want to be introduced to the skills that they will need to have to be a lawyer. Further, learning what it means to be a “professional” and discovering the “real-world” of law practice is implicit in students’ expectations as they enter law school. This implicit expectation is one of the things that energizes me in teaching the 1L legal analysis and writing course because the course provides students with their first experience with what lawyers really do. Therefore, this course provides professors with the opportunity not only to teach legal skills, but also to introduce the professional field of law practice to students.
Over the past few years of teaching, after being amazed at students’ lack of understanding the law as a professional career path, I decided to take steps to address this need for introducing the professionalism aspects of law practice. Therefore, while teaching students critical skills such as legal analysis, legal research, objective writing, and persuasive writing, I also began to address students’ lack of context of why they are learning these skills and their lack of perspective of what it is like to work in a professional setting. For instance, how can students fail to recognize the importance of showing up on time for a meeting with a professor, submitting a paper by the deadline, or being prepared for conferences? To help students to recognize these important issues, I have been instituting a “real-world” approach to teaching legal analysis and writing. In my class, students are not only students, but also associates in a law firm. I am not only the professor, but also the managing partner of their firm. From the start of the semester, the relationship with my students is a supervisor/junior attorney relationship.
This poster presentation will share the specifics of how this “real-world” approach works and some perceived benefits of utilizing this format. For example, I will explain how assignments are presented and formatted for students, how class discussion puts assignments into a “real-world” context, and how professionalism is promoted and encouraged through the law firm format.
The AALS Poster Project, Year Two: An Introduction
For the second year, I am doing a series of posts about the posters presented at the AALS conference and the professors presenting them. Here is the introductory post from last year explaining the project:
In its call for proposals last year, the Legal Writing Institute noted that "[p]oster presentations are an increasingly popular way to present scholarly and pedagogical ideas" but that "poster presentations are a relatively new format for the legal writing community." The same applies to the legal academy as a whole. "At the 2005 [AALS] Annual meeting in San Francisco, the AALS Section on Professional Responsibility sponsored posters on empirical research." Thereafter, "[t]he AALS Committee on Sections and the Annual Meeting was delighted by this innovation and decided that all AALS Sections should have the opportunity to sponsor posters at the 2006 AALS Annual Meeting."
The way I see things, though, not enough professors have availed themselves of this innovation. There are probably a variety of reasons for this insouciance, probably not the least of which is that the poster presentations are scheduled for the same time as AALS panels, meaning that attendees either have to leave panels early or attend panels late to be able to interact with poster presenters during their designated hours. The AALS later posts PDFs of these posters to its Annual Meeting sites (see here, here, and here), but I'm guessing that not many people visit these sites after these conferences are over, making them sort of like the Ark of the Covenant at the end of "Raiders of the Lost Ark." Besides, if you download one of these posters, all you have is the poster, not the presenter's reason for creating it or explanation of it.
Thus, this year, I decided to start the AALS Poster project. Pursuant to this project, I studied each of the posters at the conference and interacted with each of the presenters during their designated hours. I asked the presenters about why they created their posters, the thesis of their posters, how the posters fit into their scholarship, etc. Over the next few weeks, I will spotlight each of these posters and their presenters on this blog, and I hope that these posts draw some of the attention that these posters and presenters deserve. Of course, nothing substitutes perfectly for the real thing, and I would recommend that attendees at successive AALS conferences stop by during the designated hours and discuss the posters with their presenters. I found such discussions to be very rewarding.
January 9, 2011
Open In Case Of My Death, Take 4: Court Of Appeals Of Wisconsin Grapples With Forfeiture By Wrongdoing In Jensen Appeal
I have written three posts on this blog (here, here, and here) about the case of Mark Jensen. You might recall that this was the case where Mark Jensen was accused of poisoning his wife Julie with two doses of ethylene glycol, commonly known as antifreeze, so that he could be with his new girlfriend. The key evidentiary issue in the case concerned the admissibility of a note that the wife gave to a neighbor which indicated that Mark should be the first suspect if she died. This evidentiary issue eventually reached the Supreme Court of Wisconsin, and the majority opinion in State v. Jensen, 727 N.W.2d 518, 521 (Wis. 2007), held that the note was admissible under the forfeiture by wrongdoing doctrine, which allows for hearsay statements by prospective witnesses to be admissible when the defendant rendered the prospective witness unavailable to testify at trial.
Jensen was thereafter convicted, but the United States Supreme Court subsequently issued Giles v. California, which held that the forfeiture by wrongdoing doctrine does not apply when the defendant merely renders a prospective witness unavailable to testify against him at trial; instead, the doctrine applies "only if the defendant has in mind the particular purpose of making the witness unavailable." Therefore, Jensen appealed, with the Court of Appeals of Wisconsin recently resolving that appeal in State v. Jensen, 2010 WL 5371177 (Wis.App. 2010).One of the State's arguments on appeal was that there was a pending family court action against Mark Jensen at the time of his wife's murder and
that post- Giles, "logic" and case law "compel the conclusion that if [the state can prove] one reason Jensen killed Julie was to prevent her testimony in a family court action, then he forfeited the right to confront her at his murder trial."
The court, however,
decline[d] the State's invitation to adopt a broad interpretation of the post-Giles forfeiture by wrongdoing exception and le[ft] for another day whether Giles should be read to permit testimonial evidence when the state can establish by a preponderance of the evidence that the defendant sought to prevent the victim from testifying in any court proceeding.
This was because the court found that other significant evidence of Jensen's guilt made the admission of the letter harmless error, if it was erroneous at all.
But was the State right? In a previous post, I argued that Giles supports exactly the transferred intent theory of forfeiture by wrongdoing asserted by the State, and in a later post, I cited to a California opinion applying such a transferred intent theory. It seems to me that such a theory makes sense given the language of Giles, but we will have to wait for another day to find out whether Wisconsin courts agree.