Appellate Advocacy Blog

Editor: Tessa L. Dysart
The University of Arizona
James E. Rogers College of Law

Friday, April 30, 2021

Appellate Advocacy Blog Weekly Roundup Friday, April 30

WeeklyRoundupGraphic

Each week, the Appellate Advocacy Blog Weekly Roundup presents a few tidbits of news and Twitter posts from the past week concerning appellate advocacy. As always, if you see something during the week that you think we should be sure to include, feel free to send a quick note to either (1) Dan Real at DReal@Creighton.edu or on Twitter (@Daniel_L_Real) or (2) Catharine Du Bois at DuBoisLegalWriting@gmail.com or on Twitter @CLDLegalWriting.

US Supreme Court News and Opinions:

The Supreme Court heard oral arguments on Monday in Americans for Prosperity Foundation v. Bonta (consolidated with Thomas More Law Center v. Bonta) a case involving California's requirement that charities disclose their top donors.  In an unusual alliance between liberal and conservative groups, the Americans for Prosperity Foundation and the Thomas More Law Center are asserting that California should not be allowed to require charities to provide information about donors who contribute more than $5,000 because they don't trust the state to keep the information private.  New York, New Jersey, and Hawaii have similar requirements.  The case has drawn significant interest because of its potential future implications for political campaigns and campaign-finance regulations.

The Supreme Court heard oral arguments on Wednesday in Mahanoy Area School District v. B.L.,  a big free speech case involving a Pennsylvania teenager who was banned from her school's cheerleading squad as a result of a profanity-laced post on Snapchat made away from school and on a weekend.  The lower court ruled in favor of the teenager, holding that the First Amendment bars public schools from regulating off-campus speech.

The Supreme Court issued its opinion in Niz-Chavez v. Garland on Thursday.  The case is an immigration case involving whether the government is required to provide all necessary information to a nonresident it seeks to deport in a single notice or whether it can provide that information piecemeal in numerous mailings over an extended time.  In an opinion authored by Gorsuch and joined by Thomas, Breyer, Sotomayor, Kagan, and Barrett the Court ruled against the government and in favor of the nonresident.  Kavanaugh authored a dissent, joined by Roberts and Alito.  The opinion is another important ruling in cases involving longtime nonresidents whose deportation would have impacts on American citizen family members.

​The Supreme Court this week agreed to take up Ny State Rifle & Pistol Assoc. v. Corlett, a case in which the Court is asked to consider the extent to which the Second Amendment protects the right to carry guns outside the home for self-defense.  The question was left open in the Court's decision in Heller.

Appellate Practice Tips: 

Carl Cecere had a Twitter thread about the value of good Introductions and Summaries in your briefs -- they educate and orient the reader to the landscape of the arguments that will follow in a way that makes it easier for the audience (the judge or judges) to follow, understand, and accept your arguments.  

Appellate Jobs:

 The Arizona Supreme Court is accepting applications for law clerk positions for the 2022-23 term from law students graduating in 2022.  More info HERE.

April 30, 2021 | Permalink | Comments (0)

Wednesday, April 28, 2021

David Lat Has New Legal Blog/News Site

One of the more exciting pieces of news that I heard this week is that David Lat has a new legal blog/news site--Original Jurisdiction. I have followed David's writing since his days writing anonymously at "Underneath their Robes," and I was sad when he left "Above the Law" a few years ago.  

Since 2019, David has worked for the legal recruiter Lateral Link. But, as he recounts on his new site, after his near-death experience with COVID-19 in March 2020, he realized that he missed writing.

David's new venture uses the platform Substack.  Although his site is currently free, he will later offer it on a subscription basis, still with some free content.

Congratulations David on your new endeavor--I hope that our readers will check it out!

April 28, 2021 | Permalink | Comments (0)

Tuesday, April 27, 2021

Reducing Exigencies and Rebuilding Trust

Exigent circumstances have appeared on the Supreme Court’s mind (and docket) frequently in recent months. After hearing arguments on the hot pursuit species of exigent circumstances in February’s Lange v. California (a case I blogged about here), the Court heard arguments concerning the so-called community caretaking exception to the warrant requirement in March’s Caniglia v. Strom. Caniglia gave the Justices plenty to chew on, including whether there is really a separate community caretaking exception or if warrantless entry into a home to check on a resident 's wellbeing is simply another species of exigent circumstances.

That question came into clear focus during Justice Breyer’s questioning of the petitioner’s attorney. Breyer struggled to define the bounds of a distinct community caretaking exception. Nonetheless, he believed some such exception must exist so that officers can respond to protect citizens’ wellbeing even if there is no emergency that requires action immediately.[1] Breyer worried that tying officers hands so they could only warrantlessly react to immediate threats would stop them from responding in slower-burning, yet equally dangerous, circumstances—such as an unattended baby crying in a home for hours.[2]

But limiting officer discretion to act warrantless to only scenarios where a response is required in seconds, rather than minutes, is appropriate in the modern world for two reasons. First, given the speed with which warrants can be obtained today, only traditional species of exigent circumstances—like rendering emergency aid, chasing a fleeing felon, or preventing the imminent destruction of evidence[3]—seem truly necessary.  As the Supreme Court has acknowledged, modern electronic warrant procedures allow officers to obtain a warrant in just a few minutes.[4] That is little help when officers must act in a matter of seconds. But the ready availability of warrants undermines arguments for many other categorical exceptions to the warrant requirement, perhaps including community caretaking, when time is less of a limiting factor.

Second, Breyer wrongly implies that officers will fear responding warrantlessly to a slow-burning, community-caretaking style “emergency.” Officers genuinely interested in protecting the community should not be afraid for two reasons. First, even if the officers’ instincts prove incorrect and no community safety threat was present inside the home, there is little chance they will face civil liability. The homeowner is unlikely to file a § 1983 suit given the minimal, if not nominal, damages involved. Even if the homeowner sues, current qualified immunity doctrine provides officers broad protection so long as their actions were not contrary to existing precedent. Second, the officer should hardly be concerned if evidence of a crime that they happen to find inside the home is excluded from a later trial. Such evidence would be an unexpected windfall for an officer genuinely interested in protecting the community from a slow-burning harm. Losing windfall evidence should not concern such well-meaning officers.

If the Court limits exigent circumstances doctrine to genuine emergencies, while at the same time curbing other categorical exceptions to the warrant requirement that seem antiquated in light of the rapid availability of warrants today, it will begin lowering the temperature in many officer-citizen interactions. Both officers and citizens can easily understand and justify a narrow exigent circumstances exception. Everyone sees the benefits of allowing officers to respond to genuine, immediate threats. And if officers have little discretion to act warrantlessly beyond those emergencies, citizens may be less wary of any interaction with officers. Counterintuitively, limiting any community caretaking exception to the warrant requirement may actually help officers care for the communities they police.

 

[1] Transcript of Oral Argument at 15-16, Caniglia v. Strom, March 24, 2021, No. 20-157.

[2] Transcript of Oral Argument at 15-16, Caniglia v. Strom, March 24, 2021, No. 20-157.

[3] Kentucky v. King, 563 U.S. 452, 460 (2011) (outlining these traditional species of exigent circumstances).

[4] “[P]olice can often request warrants rather quickly these days. At least 30 States provide for electronic warrant applications. In many States, a police officer can call a judge, convey the necessary information, and be authorized to affix the judge's signature to a warrant. Utah has an e-warrant procedure where a police officer enters information into a system, the system notifies a prosecutor, and upon approval the officer forwards the information to a magistrate, who can electronically return a warrant to the officer. Judges have been known to issue warrants in as little as five minutes. And in one county in Kansas, police officers can e-mail warrant requests to judges' iPads; judges have signed such warrants and e-mailed them back to officers in less than 15 minutes.” Missouri v. McNeely, 569 U.S. 141, 172–73 (2013) (citations and quotations omitted).

April 27, 2021 in Appellate Advocacy, Current Affairs, Oral Argument, United States Supreme Court | Permalink | Comments (0)

Monday, April 26, 2021

Is that an appellate opinion or a novel?

Recently the Fifth Circuit issued a 325 page opinion in an en banc case, Brackeen v. Haaland, which concerns the constitutionality of the Indian Child Welfare Act. The actual per curiam opinion is only 5 pages. But then you have the concurrences and dissents.  Figuring out who joined what part of what opinion could be an LSAT logic game. I want to read all of the opinions, I am interested in ICWA issues, but the time that it would take to really sit down and process it is pretty overwhelming--like reading a novel!

Luke Burton, a career clerk on at the Eighth Circuit, recently published an article in The Journal of Appellate Practice and Process on the need for shorter appellate opinions. In the (short) article, Burton postulates a few reasons why judicial opinions are getting longer and offers some virtues of shorter opinions. I want to just focus on one of his points--public participation in the judicial system.  Burton argues that long opinions "encourage public ignorance of the law and the courts" because "[i]n today's 280-character culture, the public simply does not have the attention span to spend hours reading judicial opinions."  Amen to that.  Long opinions take a long time to read, and then an even longer time to analyze, which can lead to another problem Burton notes--"misinterpretation."  Burton cites an example of misinterpretation from his own court. Misinterpretation, of course, can also destroy public confidence in the courts as an institution and lead to more division and strife.

Some cases are complex and may require lengthy opinions, and perhaps the Brackeen case fits the bill.  Hopefully this summer I will have time to relax by the pool and read it, instead of the latest novel that has been released.  

 

April 26, 2021 in Appellate Practice, Federal Appeals Courts | Permalink | Comments (0)

Sunday, April 25, 2021

Appellate Advocacy Blog Weekly Roundup Sunday, April 25, 2021

WeeklyRoundupGraphic

Each week, the Appellate Advocacy Blog Weekly Roundup presents a few tidbits of news and Twitter posts from the past week concerning appellate advocacy. As always, if you see something during the week that you think we should be sure to include, feel free to send a quick note to either (1) Dan Real at DReal@Creighton.edu or on Twitter @Daniel_L_Real or (2) Catharine Du Bois at DuBoisLegalWriting@gmail.com or on Twitter @CLDLegalWriting.

US Supreme Court Opinions and News

  • The Supreme Court ruled that courts did not need to find that juvenile offenders were beyond hope of rehabilitation to sentence them to life without parole, ending a nearly two-decade trend of expanding protections for young offenders. The ruling, penned by Justice Kavanaugh, finds that “[i]n a case involving an individual who was under 18 when he or she committed a homicide, a state’s discretionary sentencing system is both constitutionally necessary and constitutionally sufficient.” Justice Sotomayor’s dissent argues that the decision departs from Miller v. Alabama, 567 U. S. 460 (2012), and Montgomery v. Louisiana, 577 U. S. 190 (2016), precedent holding that that “a lifetime in prison is a disproportionate sentence for all but the rarest children, those whose crimes reflect ‘irreparable corruption.’” Miller.  The dissent states: “[T]he Court attempts to circumvent stare decisis principles by claiming that ‘[t]he Court’s decision today carefully follows both Miller and Montgomery.’ Ante, at 19. The Court is fooling no one. Because I cannot countenance the Court’s abandonment of Miller and Montgomery, I dissent.” See the order and reports from The New York Times, NPR, and The Wall Street Journal

  • The Court dismissed as moot the final challenge to the 2020 election, a challenge to the Pennsylvania mail-in ballot deadline. See reports from ABC News, The Hill, and CNN.  

Appellate Court Opinions and News

  • The Eleventh Circuit ruled, with regret, against one of Jeffery Epstein’s accusers, holding that she cannot pursue a claim to hold prosecutors accountable for a non-prosecution agreement reached with Epstein in 2007. See the order and reports from The Atlanta Journal-Constitution and Reuters

April 25, 2021 in Appellate Advocacy, Federal Appeals Courts, United States Supreme Court | Permalink | Comments (0)

Saturday, April 24, 2021

Life Imprisonment Without Parole for Juvenile Offenders: An Analysis of Jones v. Mississippi

In Jones v. Mississippi, the United States Supreme Court ruled by a 6-3 margin that a sentence of life imprisonment without parole for a fifteen-year-old juvenile who was convicted of murder did not violate the Eighth Amendment’s Cruel and Unusual Punishment Clause.[1] The Court’s decision will likely engender criticism because it is arguably inconsistent with the Court’s precedents.

By way of background, in Roper v. Simmons, the Court held that it was unconstitutional to impose capital punishment for crimes that an individual committed while under the age of eighteen.[2] In so holding, the Court emphasized that juveniles’ brains are not fully developed and, as such, juveniles lack the maturity of adults and often engage in impulsive conduct that reflects a failure to appreciate the consequences of particular actions. For these reasons, juveniles are less culpable than adults and therefore not among the narrow category of offenders for whom the death penalty is warranted. Additionally, in Miller v. Alabama, the Court relied in substantial part on the differences between juveniles and adults to hold that laws authorizing mandatory sentences of life without parole for juvenile offenders convicted of murder violated the Eighth Amendment.[3] The Court emphasized that a juvenile’s crime often reflects “unfortunate but transient immaturity,” and that a sentence of life without parole should be reserved for a narrow category of juvenile offenders “whose crimes reflect irreparable corruption” or “permanent incorrigibility.”[4] Accordingly, imprisonment for life “is a disproportionate sentence for all but the rarest children.”[5] And in Montgomery v. Louisiana, the Court held that the rule announced in Miller applied retroactively to juveniles previously sentenced to life without parole, thus requiring re-sentencing for these offenders.[6] Finally, in Graham v. Florida, the Court held that sentencing juveniles to life imprisonment without parole for non-homicide offenses violated the Eighth Amendment.[7]

The Court’s decisions in Miller and Montgomery arguably require that, before a juvenile can be sentenced to life without parole, a court must determine whether a juvenile’s crime reflects “unfortunate yet transient immaturity,” therefore precluding a sentence of life without parole, or “irreparable corruption” (permanent incorrigibility), thus justifying the imposition of such a sentence.[8]

In Jones, the Court’s decision, although not technically inconsistent with Miller and Montgomery, certainly appears at odds with the spirit and purpose underlying these decisions.[9] Writing for the majority, Justice Brett Kavanaugh noted that Miller only prohibited the imposition of mandatory sentences of life without parole for individuals who were minors when the crime was committed. In Jones, however, the trial court had the discretion to impose a lesser sentence on the defendant – who was fifteen at the time of the crime – and thus did not violate Miller by exercising that discretion to impose a sentence of life without parole. Furthermore, because Graham v. Florida only prevented the imposition of life without parole for non-homicide offenses, it violated neither Miller nor Graham to impose a discretionary sentence of life without parole for a homicide offense.[10] Furthermore, Justice Kavanaugh stated that, when exercising such discretion, a trial court is not required to determine whether a juvenile’s crime reflected “transient immaturity” or “irreparable corruption,” the very distinction upon which Miller relied to identify the narrow category of juvenile offenders for whom life imprisonment without parole could be justified.[11] Rather, it suffices that a court has the discretion to consider youth as a mitigating factor – even in the absence of a record showing that the court considered this issue to a meaningful degree.[12]

The Court’s decision in Jones appears inconsistent with Miller and Montgomery and casts doubt upon their continued viability. First, if a sentence of life without parole should be, as the Court stated in Miller, reserved for a narrow category of juveniles who demonstrate irreparable corruption (or permanent incorrigibility), it seems logical and constitutionally necessary for courts to determine at sentencing that a juvenile falls within this narrow category. Holding that a sentence of life without parole is permissible simply because the lower court had the discretion to impose a lesser sentence – even if the court did not meaningfully exercise this discretion as Miller and Montgomery contemplate – eviscerates the precedential value of these decisions.

Second, as the Court in Roper, Miller, and Montgomery recognized, juveniles lack fully developed brains and the capacity to act with the same degree of maturity as adults. For that reason, only juveniles whose conduct reflects “irreparable corruption” may be sentenced to life imprisonment without parole. Unfortunately, by refusing to require a finding that a juvenile falls into this narrow category, the Court’s holding in Jones eviscerates the distinction between juveniles whose actions reflect “transient immaturity” and those whose actions reflect “irreparable corruption.” And Jones arguably undermines, at least to a degree, the distinction previously recognized by the Court between juvenile and adult culpability. After all, in Roper and Miller, the Court relied on the differences between juveniles and adults regarding brain development, maturity, and rational decision-making to hold that juveniles are less culpable for even the most serious crimes. After Jones, the Court appears willing to relegate decisions regarding culpability to courts who have the “discretion” to impose lesser sentences while imposing no requirements on how courts exercise this discretion.  

Put simply, Jones cannot be reconciled with the Court’s prior jurisprudence, suggesting yet again that stare decisis is a doctrine of convenience rather than conviction. Indeed, Chief Justice Roberts, despite pledging fidelity to stare decisis in June Medical Services v. Gee, where he voted to invalidate a Louisiana law requiring abortion providers to have hospital admitting privileges, joined the majority in Jones and appears to have an on-again, off-again relationship with stare decisis.[13] And given that Roberts seems to care more about public perceptions of the Court rather than constitutional law, his decision to inconsistently apply the doctrine is surprising because it undermines the very institutional legitimacy he strives to preserve.

Third, the Court failed to address the concern that permitting a judge to consider youth as a mitigating factor violates precedent holding that the Sixth Amendment requires juries, not judges, to make such factual findings, particularly where they may result in an increased sentence.

Ultimately, the Court’s decision in Jones confuses, rather than clarifies, the law regarding whether, and under what circumstances, juveniles can be sentenced to life imprisonment without parole. And by countenancing such sentences simply because a court has the discretion to impose a lower sentence – without any requirement that a court determine that a juvenile’s actions reflect irreparable corruption – the Court turned a blind eye to the risk that sentencing in this area will become arbitrary and unfair.

The decision was a mistake.

 

[1] 593 U.S.              (2021), available at: 18-1259 Jones v. Mississippi (04/22/2021) (supremecourt.gov)

[2] 543 U.S. 551 (2005).

[3] 567 U.S. 460 (2012).

[4] Miller, 567 U. S., at 479; Montgomery, 577 U. S., at 209.

[5] Montgomery, 577 U. S., at 195.

[6] 577 U.S.             , 136 S. Ct. 718 (2016).

[7] 560 U. S. 48 (2010)

[8] Miller, 567 U. S., at 479; Montgomery, 577 U. S., at 209.

[9] 593 U.S.              (2021), available at: 18-1259 Jones v. Mississippi (04/22/2021) (supremecourt.gov)

[10] See id.

[11] See id.

[12] See id.

[13] 591 U.S.            (2020), 2020 WL 3492640.

April 24, 2021 in Appellate Advocacy, Appellate Justice, Appellate Practice, Current Affairs, Legal Profession, United States Supreme Court | Permalink | Comments (0)

Sunday, April 18, 2021

An Analysis of the Charges Against Derek Chauvin

George Floyd’s death, which was captured on video, is difficult to watch and, quite frankly, disturbing. In that video, former Minneapolis police officer Derek Chauvin kneeled on Floyd’s neck for over nine minutes, including several minutes after which Floyd had lost consciousness.  Floyd’s death sparked protests (and, in some areas, riots) throughout the country for many months and, over the last three weeks, Chauvin has stood trial for Floyd’s murder in Minneapolis. Both the prosecution and defense are expected to deliver closing arguments tomorrow and the jury may begin deliberating as soon as Tuesday.

When deliberations begin, the jury will consider the following three charges against Chauvin: (1) second-degree unintentional murder (felony murder); (2) second-degree manslaughter; and (3) third-degree murder.  Second-degree unintentional murder, which carries a prison sentence of up to forty years, applies to a defendant who “causes the death of a human being, without intent to effect the death of any person, while committing or attempting to commit a felony offense other than criminal sexual conduct in the first or second-degree with force or violence or a drive-by shooting.”[1] Under Minnesota law, the underlying felony must pose a “special danger to human life,” thus requiring at least some risk of death. Second-degree manslaughter applies where an individual’s death results from “the person’s culpable negligence whereby the person creates an unreasonable risk, and consciously takes chances of causing death or great bodily harm to another.”[2] Third-degree murder applies to individuals who “without intent to effect the death of any person, cause the death of another by perpetrating an act eminently dangerous to others and evincing a depraved mind, without regard for human life.”[3]

Determining which, if any, charge will result in a conviction is difficult to predict. During the trial, the prosecution, led by Minnesota Attorney General Keith Ellison, presented thirty-eight witnesses. This included testimony from Minneapolis Police Chief Medaria Arradondo, who stated that Chauvin’s decision to kneel on Floyd’s neck was not an approved police technique and that Chauvin should have ceased kneeling on Floyd’s neck when he longer presented a threat to the officers (the evidence shows that Chauvin continued restraining Floyd for approximately three minutes after Floyd was unconscious). Additionally, the prosecution presented numerous medical experts who testified that hypoxia, which is a low level of oxygen that leads to asphyxia, caused Floyd’s death, and that the asphyxia resulted from Chauvin kneeling on Floyd’s neck for over nine minutes.

The defense, led by attorney Eric Nelson, argued that Floyd’s death was caused by a combination of factors unrelated to Chauvin’s actions, such as drug use and heart disease. For example, the toxicology report revealed that Floyd had ingested a potentially lethal amount of Fentanyl, and that Floyd had methamphetamine and THC in his system. Additionally, Floyd had atherosclerosis and hypertensive heart disease. The defense’s expert, Dr. David Fowler, concluded that these conditions, coupled with the drugs Floyd ingested and his inhalation of carbon monoxide from the squad car, collectively caused his death.  The defense also presented a use-of-force witness who testified that, under the circumstances, Chauvin did not use excessive force.

It is difficult to predict whether the jury will convict Chauvin and, if so, what charge will most likely result in a conviction. The prosecution’s witnesses, particularly Minneapolis Police Chief Medaria Arradondo and Dr. Martin Tobin, were quite compelling. Defense attorney Eric Nelson, however, effectively cross-examined several witnesses and focused extensively on drugs and heart disease as the causes of death.

Arguably, the causation issue will most likely consume much of the jury’s deliberations and will require a determination of whether Chauvin’s actions – or drugs and heart disease – caused Floyd’s death.  Indeed, given the amount of Fentanyl in Floyd’s system and his underlying cardiovascular conditions, it may be difficult for jurors to conclude beyond a reasonable doubt that Chauvin caused Floyd’s death. Importantly, however, the prosecution need only show that Chauvin’s actions were a contributing cause of Floyd’s death, which renders a conviction more likely.

Ultimately, considering the arguments, testimony, and evidence, it seems that, if the jury does convict Chauvin, it will likely be for second-degree manslaughter. A conviction on the third-degree murder charge is implausible because Chauvin’s actions, although reprehensible, did not threaten to harm multiple persons or “others” as the statute requires. Also, a conviction on the second-degree unintentional murder charge seems less likely (although possible) because the felony murder statute has rarely, if ever, been applied to law enforcement officers in the context of restraining a suspect. This is particularly true concerning a suspect who is resisting arrest because, at least for a portion of the time, the restraint used is arguably justified. In addition, given that Chauvin was unaware of the level of Fentanyl in Floyd’s system or of his preexisting heart conditions, it may be difficult to demonstrate that Chauvin intended to inflict bodily harm on Floyd or that he knew his actions were likely to result in such harm. However, a conviction on second-degree manslaughter is arguably justified because Chauvin was culpably negligent by kneeling on Floyd’s neck for minutes after Floyd was unconscious and thus no longer presented a threat to the officers. Indeed, Chauvin’s failure to stop kneeling on Floyd’s neck despite his lack of consciousness cannot be justified.

If the jury returns an acquittal, it will almost certainly result from a belief that, although Chauvin’s actions were appalling and entirely unnecessary, they did not cause Floyd’s death. This is certainly a possibility and will depend on the jury’s assessment of the experts’ credibility and of the relevant medical reports.

Also, if the jury returns a guilty verdict, defense attorney Eric Nelson (or whomever Chauvin retains) will almost certainly appeal. Specifically, Nelson will likely argue, among other things, that Judge Peter Cahill’s refusal to change the venue for the trial deprived Chauvin of the right to a fair trial. And if the jury returns a guilty verdict on the third-degree murder charge, it may be overturned on appeal because Chauvin’s actions, however deplorable, did not threaten harm to multiple people.

Regardless, George Floyd’s death was a tragedy. The video of his death is appalling. Whatever the jury’s verdict, this incident will hopefully lead to reforms in how police are trained in the use of force and de-escalation techniques, such that an incident like this never occurs again.

 

[1] Minn. Stat. 609.19(1).

[2] Minn. Stat. 609.205(1).

[3] Minn. Stat. 609.195.

April 18, 2021 in Appellate Practice, Current Affairs, Law School, Legal Profession | Permalink | Comments (0)

Saturday, April 17, 2021

Lawyer Who Protested Trial Court’s Interlocutory Ruling, Instead of Filing a Writ or Waiting for Appeal, Agrees to Public Reprimand & Judge’s “Bart Simpson” Punishment

On April 9, 2021, the Board of Professional Conduct of the Ohio Supreme Court recommended the court accept an attorney’s agreement to a public reprimand.  See Order (Apr. 9, 2021) http://supremecourt.ohio.gov/pdf_viewer/pdf_viewer.aspx?pdf=901849.pdf.  As Debra Cassens Weiss explained for the ABA Journal, the attorney, Anthony Baker, also agreed the trial judge’s “well-publicized and unusual punishment” was proper.  Debra Cassens Weiss, Lawyer deserves reprimand for courtroom protest that led to 'Bart Simpson-esque' punishment, ethics board says ABA Journal (Apr. 14, 2021).    

Baker represented a criminal defendant in the Cuyahoga County, Ohio Court of Common Pleas, before Judge Nancy Fuerst.  See https://www.cleveland.com/court-justice/2020/02/judge-doles-out-bart-simpson-esque-punishment-to-lawyer-held-in-contempt-for-acting-out-at-trial-in-cleveland.html.  The state charged defendant with felonious assault and domestic violence, and Baker filed a timely notice of defendant’s intent to rely on a claim of self-defense.  Order at 1-2.  The parties tried the case to a jury, and at the close of evidence, Baker requested a self-defense jury instruction.  After hearing argument from counsel, Judge Fuerst denied the jury instruction request.  Id. at 2.

Baker then staged what the parties before the Board called a “protest,” making “repeated efforts to stop the trial from proceeding.”  Id.; Weiss, ABA Journal at 2.  Judge Fuerst ordered Baker “to sit at the defense table and be quiet,” but while the judge was instructing the jury, “Baker left the defense table and stood behind a television stand.”  Order at 2.  Baker admitted to the Board:  “’I moved away from the table so it was clear I'm not participating.’"  Id.  Judge Fuerst then dismissed the jury for a lunch break and documented Baker’s conduct for the record.  When trial resumed, the jury returned a guilty verdict for the lesser offense of aggravated assault and domestic violence, and defendant appealed.  Id.    

In a February, 2021 post-trial proceeding, the judge found Baker guilty of contempt and fined him $500.  Judge Fuerst also ordered what Cleveland.com called a “Bart Simpson-esque dose of punishment” by requiring Baker to hand-write 25 times each:

  • I will not engage in conduct that is prejudicial to the administration of justice or in any other conduct that adversely reflects on my fitness to practice law.
  • I shall not engage in conduct intended to disrupt a tribunal or engage in undignified or discourteous conduct that is degrading to a tribunal.

Baker immediately complied with Judge Fuerst's order and paid the $500 fine.  In fact, Cleveland.com published photos of Baker sitting at counsel table and writing out his Bart Simpson-style phrases as well as the first page of his phrases. 

Baker also “admitted to the inappropriate nature of his conduct and to deserving the contempt citation.”  Order at 3.  Baker told the ABA Journal he was “’discourteous,’ and that ‘the judge was right in the discipline she gave.’”  Weiss, ABA Journal at 2.  “’As I’ve maintained throughout, what I did in the courtroom was not justified,’” Baker told the ABA Journal.  But Baker also explained he “didn’t engage in any kind of outbursts, and the judge noted that [his] protest did not create a circus atmosphere.”  Id. 

Based on media reports of the sanctions, the Cleveland Metropolitan Bar Association, as Relator, initiated a proceeding against Baker with the Ohio Supreme Court.  Id.  Baker and the Bar Association agreed to an additional sanction of a public reprimand, noting Baker immediately complied with the trial court’s sanctions order and admitted to the inappropriate nature of his conduct.  An ethics hearing panel accepted the public reprimand after finding additional mitigating factors, including the “highly public nature” of the contempt proceedings against Baker, the lack of prior discipline against him, and his cooperative attitude in the ethics proceedings.  Order at 3.   

Judge Fuerst’s punishments—and the Ohio bar sanction—seem to have succeeded where Bart Simpson’s teacher’s punishment failed.  Nonetheless, the real answer here was a properly-perfected appeal, or an interlocutory device like a writ (in jurisdictions allowing writs).  As Baker’s client’s appeal proceeds, it will be interesting to see if the appeals court finds the failure to instruct on self-defense as troubling as Baker did. 

April 17, 2021 in Appellate Advocacy, Appellate Practice, Appellate Procedure, Legal Ethics, Legal Profession, State Appeals Courts | Permalink | Comments (0)

Monday, April 12, 2021

Yes, Persuasive Writing Skills Can Help You in Real Life

I "won" a major appeal this week.  It wasn't in the courtroom, and it wasn't exactly a victory.  Rather, after about two months of back and forth, my employer directed my health insurance company to cover two months of my daughter's specialized amino-acid formula. This "victory" came after I wrote, to paraphrase the representative for the insurance company, a "really good appeal." I laughed when he said this and replied, "Well, my job is to teach law students to write persuasive appeals."  But, in reality, as I sat down late one night to write the appeal, I did think about principles I taught my students.  I wanted to share that here, but first a little backstory.

Both of my kids have needed to be on amino-acid based infant formula for a milk/soy protein intolerance. The formula is very expensive--a small can costs over $40 and lasts us less than 3 days (assuming no waste).  The formula is also hard to find--it isn't available in most stores, although some Walgreens carry it.  We have had it delivered through a medical supply company. My husband and I are both state employees, and we have the choice of two companies for health insurance. For several years we were on one company, and they covered the formula for both kids with no problem. This year we had to switch companies due to a major restructuring of the state plans.  Our kids see several specialists, and the new insurance company covered them better. 

Of course, I didn't even think about the formula in making the switch. Well, the new company decided to not cover it. Among its many arguments were: (1) the formula is a plan exclusion and (2) it is standard infant formula and over the counter. We appealed the denial, and after claiming for about a week that they didn't receive the appeal and then initially refusing to expediate the appeal (I mean, it isn't like its her FOOD or anything), they finally denied the appeal.  I got the appeal letter right around 5pm on Wednesday night, and I was livid when I read it. The letter said that I could appeal the appeal, and provided a fax number for me to send it to.  I wanted to sit down immediately and type a multi-page diatribe against the company, but cooler heads prevailed (or rather, I needed to get the kids to bed before I had time to type).

When I finally had time to type, I kept three key principles that I teach my students in mind: (1) Lead from strength, (2) Be clear and organized, (3) Use strong persuasion not abusive language.

(1) Lead from strength--My best argument on appeal was that the insurance company in its denial letter misstated my daughter's diagnosis.  The letter didn't list her milk protein intolerance, which was odd, since that is the diagnosis that requires her to have her formula.  So, my first point in the appeal pointed to that misdiagnosis. I provided copies of her medical records stating her correct diagnosis, and I carefully listed her diagnoses in the letter, pointing out the incorrect language that the insurance company used.  Similarly, in writing an appeal, start with your strongest argument, unless there is a threshold issue that you need to address like standing or jurisdiction. You want to put your best argument first, since that is your best opportunity to draw your reader (the judge!) in.  Likewise, be sure to set out your affirmative argument first. Don't come out as too reactionary to either the adverse decision below or your opponent's brief. Of course you need to rebut some arguments, but set out your affirmative case first--showing how the law is in your place.

(2) Be clear and organized--I divided my appeal into three main arguments--the misdiagnosis, the mischaracterization of the formula as standard infant formula, and the failure to explain the plan exclusions.  I set out these three points in my introductory paragraph and then used headings to set apart each argument. It was easy for the reader to follow.  Likewise, clarity and organization are critical in an appellate brief.  If there is one thing that judges almost universally agree upon it is that briefs are too long. Clarity and organization can keep the length of your brief on track, for example by avoiding unnecessary repetition. It can also help a judge follow your argument.  I always tell my students that your point headings should serve as an outline for your brief.

(3) Use strong persuasion not abusive language--I will be honest. I struggled with this point. I used stronger language than I would recommend in a brief, but I also toned down some of my writing as I went along as I thought about this principle. My most strident language was calling their characterization of the formula as "over-the-counter" as "simply false."  By the time I had written the appeal, I had also written several emails to the appeals unit, and some of those were a little harsh. I was frustrated at the amount of time I was spending on the matter and the specious arguments being raised by the insurance company. I also was annoyed because I felt that the company was just trying to delay until my daughter turned one and she could try a milk substitute. Finally, I was frustrated for all the parents of kids who have had to deal with this issue and who might not be lawyers or feel comfortable with the appeals process. These parents might also truly not be able to afford $500-$1000 a month on formula (on top of all the specialist doctor visits). My frustration definitely leaked into my written letters and emails. BUT, in general, you should not take cheap (or expensive) shots at the judge below or opposing counsel in your appellate briefs.  Be persuasive, but don't call names. Sure, you can show how the judge made a legal error or how opposing counsel's case is inapposite, but you don't need to call them liars, lazy, manipulative, or state that they "ignored the law."  Furthermore, rather than saying the law "clearly" supports you, focus on showing how the law clearly supports you.  Strong persuasion is always better than strong words.

I hope that these little tips help you in whatever type of appeal that you are writing.

April 12, 2021 in Appellate Advocacy, Current Affairs, Food and Drink | Permalink | Comments (0)

Sunday, April 11, 2021

Is Georgia’s New Voter Identification Law “Jim Crow on Steroids?”

Recently, Georgia Governor Brian Kemp signed legislation that substantially revised Georgia’s election laws. As discussed in more detail below, the law, among other things, requires voters to present a valid state identification when voting in person (similar requirements apply to mail-in ballots), limits the number and location of drop boxes for mail-in ballots, reduces the time for requesting such ballots, and expands early voting in most of Georgia’s counties.[1]

Almost immediately, critics claimed that Georgia’s law was racist.[2] Such critics claimed, for example, that the law will suppress voter turnout and limit access to voting through provisions that will disproportionately impact people of color and various marginalized communities. The result, critics argued, would benefit the Republican party and diminish the voices of Georgia’s increasingly diverse electorate.

Additionally, Major League Baseball joined the chorus of critics in condemning the law as racist and decided to move its annual All-Star Game from Atlanta, even though doing so will likely have a deleterious impact on Atlanta’s minority-owned businesses. Likewise, Delta Airlines, United Airlines, and Coca-Cola criticized the law, with Delta Airlines CEO Ed Bastian stating that the law is “unacceptable and does not match Delta’s values.”[3]

And President Joe Biden stated that Georgia’s voter identification law was “Jim Crow on steroids.”[4]

But is the law racist? Is the law really “Jim Crow on steroids?” A brief analysis of the relevant provisions of Georgia’s law suggests that the answer is a resounding no.

First, the law requires individuals to present a valid state-issued ID when voting in person. For individuals voting by mail, the law requires individuals to submit a valid driver’s license or state identification number, or provide the last four digits of their social security number.[5] Importantly, the Georgia Department of Driver’s Services and county registrar’s offices issue state ID cards at no cost to voters.[6] Given that a valid ID is required, for example, to pick up tickets at an Atlanta Braves game or to board a Delta Airlines flight, it seems rather sensible to require one before voting.

Second, the law expands early voting in most Georgia counties. Specifically, counties must designate at least two Saturdays in which to conduct early voting; counties also have the authority to offer early voting on Sundays.[7] Indeed, because this portion of the bill increases early voting – as Georgia’s previous law only required one Saturday of early voting – it appears that this provision is the antithesis of racist.

Third, Georgia’s law requires one drop box per county (and only one drop box per 100,000 voters). In so doing, the law reduces the number of drop boxes, and limits the locations where, and times in which, they can be accessed.[8] The rationale for this reduction is likely because the coronavirus pandemic, particularly due to current vaccination efforts, is nearing an end and thus does not justify the number of drop boxes made available for the 2020 election.

Fourth, the law bans giving food or water to voters who are waiting in line at the polls, ostensibly to prevent groups from campaigning to voters before they enter the ballot box.[9] However, the law permits poll workers to create self-service areas where voters can hydrate.[10] And, of course, voters are not prohibited from making the sensible decision to purchase water and food before arriving at their designated precinct. Although this provision seems rather unnecessary, there is simply no basis to conclude that it is racist.

Fifth, voters are required to request absentee ballots and must do so within approximately two-and-a-half months (seventy-eight days) of an election.[11] Again, the racist aspect of this provision is not immediately apparent.

Sixth, and in what is perhaps the most problematic (although not racist) provision in the law, the secretary of state will no longer chair the state election board. Instead, the General Assembly will elect the chair and board members, which gives Republicans in the state an unnecessary degree of power in controlling how elections are conducted and how the results are processed.[12]

The law also includes provisions striving to report election results more quickly by allowing counties to begin processing absentee ballots fifteen days before election day, and establishes a hotline that voters can call to report voter intimidation or illegal activity. [13]

Consequently, given that a state-issued ID in Georgia is free, that early voting is expanded, and that little, if any, evidence suggests that any of these provisions will suppress voter turnout,[14] can Georgia’s new law properly be characterized as “Jim Crow on steroids?” Of course not. The assertion is ridiculous on its face – just about as ridiculous as harming minority-owned businesses by removing the All-Star Game from Atlanta.[15]

Importantly, empirical evidence does suggest that voter ID laws are not effective in preventing voter fraud and that instances of voter fraud are relatively rare. However, voter ID laws can increase the perception that elections are being conducted honestly and with integrity, which will enhance public confidence in our electoral and democratic process. Perhaps that is why most states have enacted such laws. To be sure, voter ID laws in states that are the darkest shade of blue, such as New Jersey, New York, and Delaware – President Biden’s home state – are similar to, if not more restrictive than, Georgia’s new law.  In short, Georgia’s law isn’t racist. It’s not “Jim Crow on steroids.”

Ultimately, racism is despicable. Racists should be universally condemned. And efforts to increase access to the polls for marginalized groups, and conduct free and fair elections, is a legal and moral imperative. But neither of these objectives is accomplished when leaders make irresponsible and factually inaccurate statements regarding voter ID laws, and causally make allegations of racism. Doing so only serves to further divide an already divided society and promote misinformation campaigns that are anathema to a healthy democracy.

 

[1] See, e.g., Adam Brewster, What Georgia’s New Voting Law Really Does – 9 Facts (April 7, 2021), available at: What Georgia's new voting law really does — 9 facts - CBS News

[2] See, e.g., Ben Nadler and Jeff Amy, Georgia’s New GOP Election Law Draws Criticism, Lawsuits (March 29, 2021), available at: Georgia's new GOP election law draws criticism, lawsuits (apnews.com)

[3] See, e.g., Natasha Dailey, Coca Cola, Delta, United, and 7 Other Companies Blast Georgia’s New Voting Law In a Wave of Corporate Backlash (April 5, 2021), available at: Coca-Cola, Delta, Others Speak Out Against Georgia Voting Law (businessinsider.com)

[4] Gabe Kaminsky, Biden’s ‘Jim Crow’ Label for Georgia’s Election Laws is Insane – Here’s Why (April 9, 2021), available at: Biden's 'Jim Crow' Label For Georgia Election Laws Is Insane. Here's Why (thefederalist.com)

[5] See Brewster, supra note 1, available at: What Georgia's new voting law really does — 9 facts - CBS News

[6] See id.

[7] See id.

[8] See id.

[9] See id.

[10] See id.

[11] See id.

[12] See id.

[13] See id.

[14] See e.g., German Lopes, A New Study Finds Voter ID Laws Don’t’ Reduce Voter Fraud – Or Voter Turnout (Feb. 21, 2019), available at: Study: voter ID laws don’t reduce voter fraud — or voter turnout - Vox

[15] See, e.g., Katie Daviscourt, MLB’s Decision to Pull All Star Game from Atlanta ‘Crushing’ for Small Businesses (April 7, 2021), available at: MLB's decision to pull All Star Game from Atlanta 'crushing' for small businesses | The Post Millennial

April 11, 2021 in Appellate Practice, Current Affairs, Legal Ethics, Legal Profession | Permalink | Comments (1)