November 5, 2007
Improper Cross Leads To New Trial
The West Virginia Supreme Court of Appeals reversed and remanded a conviction for first degree murder, kidnapping, sexual assualt and related offenses in a case involving a particularly brutal and vicious crime. The victim was raped, beaten and buried while still alive. A court majority concludes that the prosecutor's cross-examination of the defendant on past sexual misconduct was "substantially beyond the scope and reach of character evidence" and was "noticeably prejudicial." Although "[t]he facts in this case are difficult to comprehend" the error in the scope of cross-examination requires a new trial.
A dissent would find that the prosecutor's examination was proper in light of the defendant's contention that he was a good family man and not capable of such violence. The dissent is "simply shocked" at the court majority's result.(Mike Frisch)
More Breaking News
The Maryland Court of Special Appeals has affirmed the six murder convictions of John Allen Muhammad in a 152 page opinion. The court rejects the contention that "cumulative non-error" by the prosecutor amounts to anything, saying it is the prosecutor's job to prejudice the defendant--"The ultimate prejudice is the conviction"--so long as the prosecutor operates within the bounds of the law.
The court's conclusion: " Jack the Ripper has never yet been brought to justice. The Beltway snipers have been." (Mike Frisch)
Threats Draw A Reprimand
The D.C. Board on Professional Responsibility has recommended reciprocal discipline in a case from Florida. The Florida Supreme Court had publicly reprimanded the lawyer and placed him on probation for one year. The lawyer was involved in a dispute in his capacity as corporate officer and attorney for Integrity Auto. He claimed that an independent contractor had defrauded his company. During settlement negotiations, he threatened to inform law enforcement of his contentions if restitution was not forthcoming. He also threatened to report opposing counsel to the state bar if he continued to represent his client. He did contact law enforcement; he did not contact the bar because the lawyer had ceased to represent his client.
There are no cases in D.C. where discipline has been imposed for threatening criminal or disciplinary charges "solely to obtain advantage in a civil matter." My sense is that this is because it is difficult, if not impossible, to prove "sole" motivation by clear and convincing evidence. The pertinent Florida rules also require proof of the lawyer's "sole" motivation. (Mike Frisch)
The Georgia Supreme Court disbarred a lawyer who "in 26 seperate matters, [the lawyer], whose practice apparently involved primarily domestic relations and general civil matters, has forged signatures on documents, including, but not limited to, the signatures of a notary public and a sheriff's deputy; lied to or misled clients and opposing counsel as to the status of cases and actions she allegedly had taken in those cases; failed to follow through on promises made to clients, opposing counsel and the court...misled clients...failed to return clients' and opposing counsel's repeated phone calls...failed to return unearned fees...removed pertinent documents from clients' files before returning the files to the clients who had requested their return; and placed 'manufactured' documents into a client's file before returning it to the client...[the attorney's] actions caused some...clients to lose their rights..."
It may come as no shock that the lawyer defaulted on the charges. (Mike Frisch)
November 4, 2007
The Limits Of Zealous Advocacy
In what it called a "cautionary tale for practitioners" the Oklahoma Court of Criminal Appeals upheld a finding of direct contempt against a defense attorney in connection with his conduct in a murder trial. After the defendant's conviction had been reversed on appeal, the attorney sought to introduce exculpatory evidence at the retrial after the trial judge had ruled the evidence "clearly"inadmissible. After the judge had ruled, the lawyer said he would let the jury know notwithstanding the adverse ruling. The judge said to bring his toothbrush and checkbook if he intended to violate the ruling.
The lawyer began to discuss the inadmissible evidence toward the end of his opening statement. The judge interrupted by saying "Hello." The judge ordered a mistrial. The matter was assigned to a different judge, who found the lawyer in direct contempt and ordered the lawyer to pay costs exceeding $13,000. The court sustained the contempt but not the costs: that the trial judge's "order may have been wrong is simply not relevant." The majority found that costs were not properly imposed as punishment because the defendant later pleaded guilty and no new jury was ever assembled; a dissent would nonetheless find the imposition of costs proper. (Mike Frisch)
Conviction Of Clergyman Reversed
In a divided opinion, the Minnesota Supreme Court upheld the constitutionality of a statute that makes it a crime for a member of the clergy to engage in sexual penetration with a person seeking " religious or spiritual advice, aid or comfort in private." The court majority held that the statute was not void for vagueness and evenly split on the facial constitutionality of the statute, thus upholding the decision affirming the conviction by the court of appeals on that ground. However, the admission of extensive evidence with respect to church practices and doctrine "necessarily caused entanglement of religion with the verdict and conviction." The case involved a clergyman who had engaged in sexual relationships with two members of his parish.
A dissent would affirm: Noting the power imbalance between the defendant and the victims, one of whom was suffering from depression, the dissent contends that the statute is grounded in "secular legislative determinations, not on church doctrine...when [the defendant] first came to the church, he made a list of 20 women, 14 of whom he said late 'hit' on him; and out of the 14,12 were married." (Mike Frisch)