Preserve the Record Alert: Felon in Possession Statutes are Low-Hanging Fruit

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, Professor at Moritz College of Law at Ohio State University reports at his blog, Sentencing Law and Policy, that the Seventh Circuit has suggested that a non-violent felon might prevail on a Second Amendment challenge if he brings an as-applied challenge to the Federal Felon in Possession statute (18 U.S.C. Section 922(g)(1))). In U.S. v. Williams.pdf, No. 09-3174 (7th Cir. August 5, 2010), with retired Justice Sandra Day O’Conner participating as a member of the panel, the court rejected a challenge to the statute brought by a defendant with a violent felony record.

Professor Berman finds particularly noteworthy the following paragraph from the Williams opinion:

And although we recognize that Section 922(g)(1) may be subject to an overbreadth challenge at some point because of its disqualification of all felons, including those who are non-violent, that is not the case for Williams. Even if the government may face a difficult a difficult burden of proving Section 922(g)(1)’s “strong showing” in future cases, it certainly satisfies its burden in this case, where Williams challenges [the statute] as it was applied to him. … Williams, as a violent felon, is not the ideal candidate to challenge the constitutionality of Section 922(g)(1).

Looks like an engraved invitation for a non-violent felon to bring it on. And though we Georgians are not in the 7th Circuit, it looks like a nice little opportunity to throw a challenge into your record if you are representing someone at the trial level who is a non-violent felon charged with a felon-in-possession charge under the Federal statute or under Georgia’s comparable statute. Wouldn’t hurt.

When I get your record on appeal, it will give me something more than Jackson v. Virginia to talk about.

Use Good Story Technique in your Next Appellate Brief

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Who doesn’t like a good story? We start liking them before we know how to read. Trial lawyers generally know that juries like them. But what about appellate writing? Is there a place for story in the appellate brief or at oral argument?There is, and if you start weaving elements of story into your appellate brief writing, your client’s case will stand out from the stack of briefs the judge, justice, or law clerk is reading. While you may not be guaranteed a win, you increase the likelihood that your court will at least read your brief all the way through. A thorough an interested reading is your first and greatest hope if you are the appellant. The easiest thing for a court to do, after all, is affirm the trial court. A thorough reading gets your audience out of default mode.

Enter Kenneth D. Chestek, Associate Professor of Law at Indiana University School of Law. In a paper he presented at the Applied Legal Storytelling conference in 2007, he argues that the IRAC brief (adopted from the case method to help first year law students grasp legal opinions by breaking them down into the components of Issue, Rule, Application, and Conclusion) leads to dry and boring writing. He adds that “[t]he problem with IRAC, however, is that it doesn’t have much room for people.” Which leads to his thesis: “legal writing need not be — nay should not be — boring. When we write legal briefs to a court, we are trying to resolve some human conflict. That’s inherently interesting stuff!”

Great, you might think, it’s time to spruce up the statement of facts and make it more compelling. That’s a good start. Mr. Chestek argues that a strong narrative thread should wind through the argument section as well.

What, pray tell, is a strong narrative thread? It’s the stuff that made your favorite movie so great or that last novel that kept you up late reading. Broken down to its component parts:

a compellng story is a strong plot line, in which conflict is revealed, the protagonist struggles to resolve the conflict, and ultimately succeeds in doing so.

And that, in one deceptively simple expression, is it. Your brief, your entire brief, should have a clear conflict, a protagonist (and what’s a protagonist without an antagonist), and a resolution.

Do Stodgy Conservative Judges Want More Stories?

They don’t usually put it that way, but yes. According to Chestek’s piece, Judge Ruggero J. Aldisert, senior judge of the United States Court of Appeals for the 3rd Circuit, reports that most of his colleagues complain most that the briefs they read are “rudderless [and contain] no central theme [,]… lack … focus [, and contain] uninteresting and irrelevant fact statements.” Put another way, they don’t tell a story.

What Does a Good Story Have to Do with a Good Appellate Brief?

According to Mr. Chestek, good fiction shares several traits with a good appelate brief:

  • It is plausible.
  • It is readable.
  • Most importantly, for present purposes, it evokes an emotional response from the reader

He adds that a good story and a good appellate brief has a definite setting. Setting could be the literal place where a crime took place, a courtroom where mistakes were made, or a small cramped interrogation room that smells of industrial cleaning chemicals, nicotine, and sweat. It might also be the law itself. Setting defines and limits conflict. What is the setting of your next appellate brief?

Good appellate briefs also have clearly-defined characters and a central conflict. Who is the protagonist in your brief? Who is the antagonist?

Finally, what is the theme of your brief? What is the plot? What will the end of the story look like after the protagonist prevails? That’s the part of the story you ask the Court to write.

Find Yourself Getting Lost?

Return to the definition of a compelling story: “a compellng story is a strong plot line, in which conflict is revealed, the protagonist struggles to resolve the conflict, and ultimately succeeds in doing so”

  1. What is the conflict?
  2. Who is the protagonist?
  3. Who is the antagonist?
  4. How should the conflict resolve itself?

If your reader can identify the answers to these questions, then your brief is likely readable, interesting, and probably one of the best briefs in the stack of briefs the judge or law clerk is reading at 4:53 p.m. on Tuesday afternoon as deadlines approach and as fatigue sets in.

For more on story, start reading more novels or when you’re watching television, try to keep the questions above in mind.

If you really want to become a story ninja, check out Robert McKee’s Story, Donald Miller’s book and blog on story, and Joseph Campbell’s works, which identify the central components of all stories running through many cultures.

Then, makes your next brief a good story

 

Republican Run-Off for Georgia Attorney General Devolves into Dealth Penalty Smackdown

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I’ve been talking about the Democratic side of the Attorney General election for too long. But what about the Republic side? Georgia is such a red state, that the Democratic ticket is largely irrelevant anyway. Meanwhile, the Republicans are in a run-off. And, as Republicans are apt to do when they square off, the candidates are starting to compete to see who is more enthusiastic about killing criminal defendants.

Austin Rhodes, an Augusta, Georgia, conservative talk show host published a letter from Barry Fleming, legal counsel to the Georgia House of Representatives, to Sam Olens, Preston Smith’s rival for Georgia Attorney General. In the letter, Fleming tells Olens that Smith blocked passage of a bill that would have allowed juries to recommend a death sentence by less than a unanimous vote from the jury.

Fleming alleges that Smith “killed the bill in his committee” (Not kidding. He said “killed”) by waiting until Republican senators left the committee room to call it for a vote where democrats could vote against it.

Smith maintains that the bill would have created expensive litigation in death penalty cases over the law’s constitutionality — particuarly given the fact that the bill would have allowed the judge to decide whether to impose the death penalty in the event of a non-unanimous death verdict.  The bill would also have put Georgia in a minority of states that allow the death penalty to be imposed after a non-unanimous verdict. Of the 35 States that have the death penalty, few allow for non-unanimous death verdicts. Georgia lost a rare opportunity to distinguish ourselves as being politically more conservative than Alabama.

While it is fun for Republicans to compete to see who loves the death penalty more, they don’t seem to want to talk about the fact that life for a Georgia death penalty defendant in Georgia involves more or less taking up permanent residence in a county jail for years at a time with a lawyer the State refuses to pay. The constituency these guys are competing for think that it’s silly that the State pays for the lawyer anyway.

So, Senator Smth’s death-cred has been called in to question. When Republicans start attacking each other this way, bad stuff can happen.

I’m going to take this opportunity to predict what Smith will do next to get his death-cred back:

  1. He will try to get an actual execution set before the run-off, where he will stand in as a substitute to administer the lethal dose to the inmate — the ultimate red state photo op
  2. He will photo-shop himself into Leni Riefenstahl’s Triumph of the Will, to win back all the Tea Party Republicans who were likely swayed by Fleming’s letter. Sure, it was filmed in 1934, but most of those people think that the universe is only 4000 years old anyway. So, the date won’t be a huge problem. A little sleight of hand will be all it takes to get around the date problem.

Of course, none of the above may be necessary if cooler Republican heads prevail such as Bob Barr, who wrote an a letter to the editor of the Fulton Daily Report supporting Smith stance on non-unanimous verdicts.

Man, this general election is going to be fun between Hodges and allegations that he monkeyed around with a grand jury proceeding involving a police officer who shot an unarmed man and these Republicans who want to compete to see who is more in favor of killing defendants than the other.

This whole thing is going to make life fun for me in future habeas proceedings and murder appeals no matter which person wins this election.

 

 

Good Appellate Writing is Not Stuffy or Formalistic

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I love Kendall Gray’s piece on Brevity and the use of conjunctions to start sentences. I, too, learned never to begin a sentence with But or And. It seemed like good advice at the time. But now I have learned that it is not a law of physics.

He quotes Professor Wayne Scheiss, who presented at a CLE in Texas, who recommended “that in place of however, on the contrary, on the other hand, and the like, you try but and yet without a comma afterward.”

Holy cow! That’s kooky talk. But it’s actually quite liberating. Mr Gray notes:

After attending that conference ,therefore, I no longer have to write in this tortured syntax where formal, introductory clauses are inserted and set off with commas or even semicolons in order to guard against preparatory conjunctions, which are something up with which we will not put.

With this blog, I am now retiring my use of the phrase, “to be sure.” I usually resort to “to be sure,” because I get sick of all the other clauses in a brief. And I won’t miss it one bit.

Are Law Review Articles Relevant in Georgia or 11th Circuit Appellate Decisions?

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Kirk Jenkins, at The Appellate Strategist Blog, poses an interesting question. Does Legal Scholarship Have an Impact on the Work of the Courts? The ABA and some judges say no, and a recent study says yes.

Mr. Jenkins quotes United States Chief Justice John Roberts who recently characterized legal scholarship as not “particularly helpful” in deciding cases. He cites an ABA study that commented that practicing lawyers view legal scholarship as “irrelevant to their day-to-day concerns.” He reports that even law school professors believe that legal scholarship as increasingly removed from the work of the courts.

Such a view seems odd with the introduction of Google Scholar, blogs, and other places where law review articles are more available than ever before. You don’t have to be a member of a big firm with a library that subscribes to law review articles to get them, and you don’t have to trudge over to a law school or courthouse library to find law review articles.

In fact, I read my first law review article in a long time (PDF) after I found out about it on a blog. I found the article, put it on my iPad as a pdf, and found myself immersed in a seemingly esoteric debate with real world application to how I respond to my clients’ ideas for the handling of their case. It challenged some of my practices, made me consider some, reject others, and change my approach to hopefully be less paternalistic and more client-centered. So, not only are law review articles easy to find, they are easier to copy and to carry than they were just a few years ago. The law review article was very relevant to my practice.

From there I read another article about the professor who wrote the piece and discovered that one of her law review articles had come up in a Supreme Court Oral Argument and mentioned in the opinion. Now, I find myself more open to reading law review articles, particularly as a starting point for legal research as I begin to prepare a brief or consider issues to preserve for appeal.

Mr. Jenkins found some research indicating that legal scholarship may be in its heyday. According to a new study from Professor David Schwartz of Chicago-Kent College of Law and Lee Petherbridge of Loyola Law School, legal scholarship is on the rise in the appellate courts. This excellent study looked for citations to law review articles in 296,098 opinions and found an increase in citations.

The blog post ends with a question: are practitioners citing to law review articles in briefs? They really should — put differently, I really should. In fact, with the Georgia Supreme Court re-examining precedent and its value, now may be the best time ever to cite to law review articles that criticize the reasoning behind precedent.

I’d probably leave off the law review articles that apply de-constructionist literary theory to jury charges for now, though.

U.S. v. Irey: The Return of the Federal Sentencing Guidelines in the 11th Circuit

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There is a moment in most great horror movies where the evil presence/bad guy/ghost/homicidal maniac takes out a character who has it coming. For a moment, the audience applauds the wicked antagonist. Think of Jason from Friday the 13th taking out a weaselly teen or the scene in Jurassic Park where the velociraptors eat Dennis Nedry (a/k/a Newman from Seinfeld). Eventually, though, the antagonist continues to do damage to good characters, bad characters, and everyone in between.

If the Federal criminal justice system is the horror movie, then the Federal Sentencing guidelines are the antagonist. Last week, Jason from Friday the 13th re-emerged from the lake. It just so happens that he took out William Irey, a guy who had it coming. But the Guidelines are back with a vengeance to haunt us in a way they haven’t since the Booker decision, and they’ve already started slashing away at the discretion of Federal District Court judges. If Mr. Irey applies for certiorari, then it may be time to start thinking movie antagonist on the level of the big red eye from The Lord of the Rings.

 

The Bad Guy Who Got What was Coming

Meet William Irey. Mr. Irey was a successful businessman who took multiple trips to Asia where he filmed himself exploiting children. He came back to the States and distributed the images over the internet. I am not going to say more. In fact, I have not found a blog or article on this case that recites the particulars. For that, you have to read the opinion (PDF). In summary, I don’t think I’ve read about worse facts in a child sexual crime case.

Mr. Irey plead to a single count of child sexual exploitation under 18 U.S.C. Section 2251, an offense that carries a range of punishment from fifteen to thirty years to serve. The Federal Sentencing Guidelines called for a sentence of life in prison or the maximum sentence.

The sentencing judge deviated substantially from the guidelines recommendation and sentenced Mr. Irey to serve 17.5 years, just two and a half years over the minimum and a 12.5 year downward variance from the guidelines sentence.

To make things worse, the sentencing judge said some rather unfortunate things. The worst was the court’s decision to refer to Mr. Irey as a victim.

As Scott Greenfield put it in his post on the Irey case, the judges could not live with the prospect of Mr. Irey ever walking out of prison. David Oscar Marcus, at the Southern District of Florida Blog, reaches similar conclusions.

The problem is how they got there and the fact that the 11th Circuit has revived the Federal Sentencing Guidelines in a big way.

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Local Politicians are Criticizing the High Costs of Interpreters

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Due Process comes at a price. According to Patrick Fox, in a recent article in the Atlanta Journal-Constitution, it is expensive to provide interpreters for non-English-speaking defendants. In 2009, Gwinnett County paid $539,803 to provide interpreters. With a more diverse population comes an increased need for interpreters. Judge Davis of the Superior Court of Gwinnett County, estimates that interpreters have been provided in over 42 languages in 2009.

 

The Rosetta Stone Comment

Of course, it appears that the Constitution of the United States is being lost in translation to those responsible for funding court systems. One city council member said that he wishes that he had gotten the Rosetta Stone software because he believes the court interpreting is a “sweet gig.” Being a certified court interpreter is hard work, requiring proficiency in two languages, knowledge of the court system, and the ability to multi-task in a challenging often high stress environment. Buying some software from a kiosk at the mall probably won’t make you a certified court interpreter, but it might get you “close enough for government work” in some Georgia Courts, even if you are the arresting officer, a probation officer, or a co-defendant.

 

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The Supreme Court of Georgia Now Allows E-Filing of Briefs

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While it feels like August in Georgia, for appellate practitioners it may feel a little like it is Christmas. Today, the Supreme Court of Georgia has begun accepting briefs through its new e-filing system.

From today forward, lawyers who are in good standing and members of the State Bar of Georgia and the the Supreme Court of Georgia may file a brief and other pleadings before the court by uploading them to the Supreme Court e-filing website as a PDF. While the Georgia Court of Appeals has allowed e-filing for several months now, the Supreme Court will allow a wider range of filings than the Court of Appeals currently supports.

Beyond the Supreme Court’s website, several news have filed stores on e-filing. Bill Rankin, with the Atlanta Journal-Constitution used twitter to announce it. Jan Skutch with the Savannah Morning News ran a story about it. WLTZ News has covered it. My friends over at the SCOG Blog have a good post where they have registered and tried it out. Of Course, the Supreme Court’s own website has extensive coverage.

Among the types of filings that may be submitted the filing system our briefs on cases that are currently pending before the court, applications for interlocutory appeal, applications for discretionary appeal, and petitions for certiorari.

For those unfamiliar with E-filing, the Court has included several instructional videos to tell you how to do things such as register for the following with the Supreme Court, how to submit your first brief, and how to submit various petitions for matters that are not currently docketed before the court. If you have filed electronically in the Georgia Court of Appeals, you will find that the user interface here looks familiar.

I have already registered with the system and find that many of my filings are available to be reviewed. I wrote an article in the most recent issue of the appellate law section’s newsletter, the Appellate Review that discusses the filing in the Georgia Court of Appeals, and I am sure that the section will have a forthcoming article on the Supreme Court’s new move.

Chief Justice Hunstein is very excited about the development. She said today “What we’re talking about here is a revolutionary change that is a win-win situation for the Court and for the litigants,”. She added, “The parties will save time and money by no longer having to print, copy and deliver paper documents. No more fighting Atlanta traffic to get those documents into our Clerk’s office by the 4:30 filing deadline.”

Today’s announcement from the court will make several people happy, including lawyers, legal secretaries, court personnel, and many others who deal with the Supreme Court on a regular basis. No doubt, this system will make several people unhappy including Blumberg, copier suppliers, the United States Postal Service – particularly my old friends whom I used to see at the Hapeville post office at midnight (the last post office in the state you can file things up to midnight). The fact that those people will be unhappy actually makes the even happier.

In the long run, this new system will save me money as every time have ever had to file a brief with the Supreme Court of Georgia, it has been necessary to prepare an original and seven copies to mail out.

A Very Disturbing Appellate Sanction Story

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Jay O’Keeffe, in his blog reports that he is bothered by a recent development involving a lawyer who has been summoned to show cause and explain comments he made in a lower court transcript about the Virginia Supreme Court.

Bothered is a mild way to describe my reaction to the story. Put more accurately, I think I feel hot water in the back of my mouth, and I don’t even practice law in Virginia. The story is the ultimate in “there but by the grace of God go I” cautionary tales for lawyer like myself.

So, here’s the story. A lawyer in Virginia was representing someone on a criminal case that was appealed successively. When the lower court asked the lawyer about an issue that the appellate court never reached on appeal, the lawyer responded that the appellate court had decided to “stuff it” because it “did not have the guts to handle it.”

Low and behold, the matter reached the Virginia Supreme Court and the powers that be read it. They were not amused and have summoned the lawyer to appear and explain himself in person. Did I mention the hot water in the back of my mouth?

The problem is that law is all about analyzing what and how judges and courts rule. Every brief contains those things more or less. One court revisits the analysis of a previous court. In fact, law could be reduced down essentially to a bunch of people criticizing each other. I’m not defending the “stuff it” language, but would he be in trouble had he said that the issue was a hot potato, and the Court did not appear to want to touch it.

Court of Appeals Rule 10

Under Georgia Court of Appeals Rule 10, “Personal remarks, whether oral or written, which are discourteous or disparaging to any judge, opposing counsel, or any court, are strictly forbidden.” I did some research, and it turns out that Rule 10 has only come up once in a published opinion. In Hampton v. Bank of LaFayette, a party tried to have the other side sanctioned for personal remarks made in a brief, and the Court declined to do so. They didn’t even include the remarks for our voyeuristic reading pleasure (although, I am sure the most honorable Court had a very wise reason for doing so, because our appellate court is very wise. We also have the most attractive court in all the land).

Our appellate bench seems to be a little more thick skinned than Virginia’s. Keep in mind, Virginians have always been about honor. I sure hope that the lawyer isn’t handed a dueling pistol when he arrives for his hearing.

 My Shameless Attempt to Capitalize in the Past.

A few years ago, an opponent was being obnoxious to me in a motion for new trial hearing. He was getting personal in one of those cases where it seemed kind of pointless to be that way. I had nothing. It was one of those cases that makes you miss Anders briefs. But I was getting annoyed by the gratuitous “go for the jugular” approach opposing counsel was taking.

Then came a little gift from the prosecutor. He turned his attention from me to appellate courts, and he commented that he could do his job if “those courts in Atlanta would just get their foot off my neck.”

With little else to argue on this appeal, I devoted a good portion of the statement of facts to his comments about the Court of Appeals. In fact, I think the brief began with a quotation about the appellate courts and a neck and some feet.

The Court affirmed the conviction without so much as a peep about the lawyers statement. Oh, to have been in Virginia. However, if I had made a comment like that, I wonder if it would have made a splash?

Conclusion

Of course, in Georgia I wouldn’t press my luck. There can sometimes be a fine line between criticism and being insulting. The key, I think, is to be critical of reasoning, application of precedent, and judgment without discussing motivations and personalities.

For instance, in motions for reconsideration, I always ask for reconsideration because I was unclear and failed to communicate the law in a good way. If the Court reached an erroneous decision, it came as a result of a failure in advocacy on my part.

I don’t think being passive aggressive is actionable under Rule 10. And I’m sure the ole malpractice carrier loves this language.

 

Ceremony for Clerk of Georgia Court of Appeals Offers Glimpse into Political Climate

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These have been difficult days for the judiciary and for the Court of Appeals in particular. There are three openings on the Court and two branches of government that seem to view the court system as an inconvenient hurdle standing in the way of law enforcement. Add to the mix the fact that yesterday was the retirement ceremony for William L. Martin, III, the Clerk and Court Administrator of the Georgia Court of Appeals for almost 20 years. While the ceremony was about the excellent work of Mr. Martin, remarks judges made at his retirement demonstrate that these have been difficult days at the Court.

Yvette Miller, currently the Chief Judge, battled back tears at several points during her presentation. She and several speakers mentioned that there have never been as many open seats on the Court as there are right now.

The governor is about to appoint two judges, and there is an open election for a third. Speaking of the governor, he appeared to be a silent character in yesterday’s events.

In describing Mr. Martin’s contributions to the Court over his tenure, Chief Judge Miller mentioned in particular his contributions over the past year. More particularly, she mentioned their trips together “across the street” to the state capitol where they had to meet with the legislative leadership to try to deal with sharp budget cut. She spoke of how she and Mr. Martin huddled up at her desk to find a way to keep the staff of the Court employed and to ensure the the work of the Court was done in spite of the fact that the House was gutting its budget (“gutting” is my word, not hers). Finally, when she presented Mr. Martin with the gift from the judges, she said in tears, “we all wanted you to have this, including Judge Bernes.”

His most recent great accomplishment was E-filing in the court, which has greatly streamlined the appellate process in that court and has benefitted my practice considerably.

On a more general note, Judge Ellington spoke of how difficult the job of Court of Appeals clerk is. First, the Clerk is the one real point of contact most parties before the Court will have. For the advocate who has a case before the court occasionally and who might not regularly appear for Appellate Section events or Oral Argument, there may never be contact at all with the judges. The Clerk is the public face of the institution.

Judge Ellington went on to discuss the diverse array of difficult people the Clerk must work with, including lawyers, county court clerks, many of whom are hostile to the appellate process, and judges.

Speaking from experience, I found Mr. Martin to be very helpful to me in my early years practicing before Court. He was always quick to return my phone calls, eager to offer advice, and a cheerful voice at the end of the phone when I was knee deep with a brief due. It turns out that he was that person to hundreds of other people who called him about their cases.

At the same time, he was meeting with hostile legislators and a governor who has done more, perhaps to set back the idea of an independent judiciary than anyone in the history of that office.

Justice Carley of the Supreme Court of Georgia presented a gift to Mr. Martin — the decision to give it was the first action that the Court has taken in a while that wasn’t decided by a 4-3 vote.

It was a touching ceremony. It was also a telling ceremony.

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