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Law of Criminal Defense - Archives for: January 2011

Archives for: January 2011


Permalink 05:10:46 pm, by forhall, 172 words, 16098 views   English (US)
Categories: blog

NJ: Guilt relevant to criminal defense malpractice

Sued for Malpractice, Defense Lawyer Can Allege Client's Guilt by Mary Pat Gallagher in The Philadelphia Legal Intelligencer, January 28, 2011:

A criminal defense lawyer sued for malpractice should have been allowed to pursue evidence to bolster his claim that the ex-client was convicted because he was guilty, a New Jersey appeals court says.

Tuesday's precedential ruling in Marrero v. Feintuch [No., January 25, 2011] reverses a decision quashing a subpoena issued on behalf of Howard Feintuch, of Feintuch Porwich & Feintuch in Jersey City, N.J.

Hudson County Superior Court Judge Bernadette DeCastro found the evidence was not relevant and that the "suit within a suit" approach should not be used in trying criminal legal malpractice actions.

But the Appellate Division ruled that whether Jeffrey Marrero committed the crime was relevant to whether he was harmed by Feintuch's alleged negligence, and that whether the suit-within-a-suit format was to be used should be decided at the end of discovery.

This is the general rule. See Treatise § 31:15.


Permalink 10:26:25 am, by forhall, 199 words, 12661 views   English (US)
Categories: blog

WI: "Convicted attorneys are still practicing"

In the Milwaukee Journal-Sentinel: Convicted attorneys are still practicing / Some even have kept their licenses while serving time for their crimes by Cary Spivak and Ben Poston:

At least 135 attorneys with criminal convictions are practicing law today in Wisconsin - including some who kept their licenses while serving time and others who got them back before they were off probation, a Journal Sentinel investigation has found.

The roster includes lawyers with felony or misdemeanor convictions for fraud, theft, battery and repeat drunken driving, as well as offenses involving political corruption, drugs and sex. A child-sex offender got probation for his crime but never lost his law license. A politician convicted in a check-kiting scheme was reprimanded but also kept his license.

Another 70 lawyers were charged with crimes but succeeded in having the charges reduced or avoided conviction by completing a deferred prosecution plan. All were given the green light to practice law.

The newspaper's review, which ran nearly 24,000 Wisconsin lawyers against state and federal court records, found that lawyers who are convicted of crimes are then subjected to a slow-moving disciplinary system that operates largely behind closed doors.

Wisconsin appears to be comparatively lenient in dealing with lawbreaking lawyers.


Permalink 09:55:17 am, by forhall, 110 words, 12105 views   English (US)
Categories: blog

MA moving toward PD system

On today: Call for public defender overhaul / Patrick seeks to end costly use of private lawyers for the indigent by Andrea Estes:

Governor Deval Patrick wants to eliminate the use of private attorneys to represent indigent defendants, an entrenched $200 million system that has been attacked as unfair by prosecutors across the state.

The sweeping measure, which will be contained in the governor’s fiscal year 2012 budget, would end the state’s practice of farming out roughly 90 percent of the work defending poor clients in criminal cases. The state instead would hire about 1,000 full-time staff attorneys to replace the 3,000 private lawyers the state draws on to represent poor people.


Permalink 09:10:20 am, by forhall, 43 words, 12667 views   English (US)
Categories: blog

CA6: Lawyer mishandling child porn liable

Courthouse News Service: Lawyer in Hot Water for Photoshopping Child Porn by Dan McCue, also noted on ABAJ: Lawyer Acting as Expert Witness Violated Child Porn Law With Court Exhibits, 6th Circuit Rules. The case is Doe v. Boland, 09-4281 (6th Cir. January 19, 2011).


Permalink 09:07:58 am, by forhall, 152 words, 13623 views   English (US)
Categories: blog

CT prosecutor resigns amid allegations of favorable treatment for one defense lawyer

A veteran Connecticut prosecutor has resigned amid allegations of favorable treatment of a defense lawyer who has been a friend since childhood:

Waterbury State’s Attorney John A. Connelly has resigned effective Feb. 1, according to Connecticut Supreme Court Justice Richard N. Palmer, chair of the state’s Criminal Justice Commission.

Palmer stated that the resignation follows an inquiry undertaken by the commission into allegations regarding Connelly’s conduct while in office. Palmer further stated that, because the commission's inquiry involved a personnel matter, and because the allegations have been the subject of an investigation by federal authorities, he was not free to discuss details of those allegations at this time.

Published reports have stated that federal authorities are looking into whether Connelly had a too-friendly relationship with Waterbury defense attorney Martin Minella, and whether his relationship had led to favorable treatment for Minella’s clients.

He says he's resigning for health reasons.


Permalink 03:33:48 pm, by forhall, 288 words, 12339 views   English (US)
Categories: blog

Cal.3d: Use of employer's email system was waiver of A-C privilege in sex harassment case against employer

By using the employer’s e-mail system with notice that the e-mail could be read by the employer, the employee’s e-mails with her lawyer were not privileged. Holmes v. Petrovich Development Company, LLC, C059133 (3d Dist. January 13, 2011):

Among other things, we conclude that e-mails sent by Holmes to her attorney regarding possible legal action against defendants did not constitute “confidential communication between client and lawyer” within the meaning of Evidence Code section 952. This is so because Holmes used a computer of defendant company to send the e-mails even though (1) she had been told of the company’s policy that its computers were to be used only for company business and that employees were prohibited from using them to send or receive personal e-mail, (2) she had been warned that the company would monitor its computers for compliance with this company policy and thus might “inspect all files and messages ... at any time,” and (3) she had been explicitly advised that employees using company computers to create or maintain personal information or messages “have no right of privacy with respect to that information or message.”

By using the company’s computer to communicate with her lawyer, knowing the communications violated company computer policy and could be discovered by her employer due to company monitoring of e-mail usage, Holmes did not communicate “in confidence by means which, so far as the client is aware, discloses the information to no third persons other than those who are present to further the interest of the client in the consultation or those to whom disclosure is reasonably necessary for the transmission of the information or the accomplishment of the purpose for which the lawyer is consulted.” (Evid. Code, § 952.) Consequently, the communications were not privileged.


Permalink 12:10:47 pm, by forhall, 113 words, 12806 views   English (US)
Categories: blog

"Public Defenders Sue 23 New Orleans Judges"

Public Defenders Sue 23 New Orleans Judges by Sabrina Canfield in Courthouse News Service:

The Louisiana Public Defender Board sued 23 New Orleans judges who fail to collect a $35 fee from criminal defendants who appear before them. The fee, which is mandatory, helps fund public defenders offices, and the judges' refusal to collect it has resulted in "critical underfunding" of the New Orleans Public Defender's Office, according to the complaint.

Louisiana is the only state that doesn't fund most of the cost of indigent defense through state and local budgets. Instead, most of its money comes from the courts themselves, through traffic fees and fines and - in theory - in $35 fees from criminal defendants.


Permalink 12:04:21 am, by forhall, 402 words, 16484 views   English (US)
Categories: blog

CA9: Use of fake subpoena to snitch to show to represented party did not violate Cal. CPR 2-100

Although the District Court held that the government violated California CPR 2-100, the Ninth Circuit disagrees and holds that using a fake subpoena with a snitch to get a represented person to incriminate himself did not violate the rule nor require suppression. United States v. Corona, 09-50235 (9th Cir. January 6, 2011):

The use of a false subpoena attachment did not cause the cooperating witness, Haidl, to be any more an alter ego of the prosecutor than he already was by agreeing to work with the prosecutor. Haidl was acting at the direction of the prosecutor in his interactions with Carona, yet no precedent from our court or from any other circuit, with the exception of Hammad, has held such indirect contacts to violate Rule 2-100 or similar rules. See Powe, 9 F.3d at 69; Kenny, 645 F.2d at 1339; United States v. Ryans, 903 F.2d 731, 739 (10th Cir. 1990) (disagreeing with Hammad and “agree[ing] with the majority of courts which have considered the question that [the no-contact rule] was not intended to preclude undercover investigations of unindicted suspects merely because they have retained counsel”) (collecting cases).

The false documents were props used by government to bolster the ability of the cooperating witness to elicit incriminating statements from a suspect. The district court appears to have been concerned that by allowing such conduct a suspect could be “‘tricked’ into giving his case away by opposing counsel’s artful questions,” but it has long been established that the government may use deception in its investigations in order to induce suspects into making incriminating statements. See, e.g., Sorrells v. United States, 287 U.S. 435, 441 (1932) (“Artifice and stratagem may be employed to catch those engaged in criminal enterprises.”). The use of fake documents here was just such a stratagem. The reasoning of the Third Circuit in United States v. Martino, 825 F.2d 754 (3d Cir. 1987), rejecting a claim of a prosecutorial ethical violation based on a fake subpoena, seems to us particularly persuasive:

If government officials may pose as non-existent sheiks in an elaborately concocted scheme, supply a necessary ingredient for a drug operation, and utilize landing strips, docking facilities, and other accouterments of an organized smuggling operation, all in order to catch criminals, then their use of a subpoena in the name of an undercover agent to enable him to retain his credibility with suspected criminals seems innocuous by comparison. Id. at 760 (internal citations omitted).

Id. at 760 (internal citations omitted).


Permalink 01:22:12 am, by forhall, 174 words, 24451 views   English (US)
Categories: blog

SCOTUS: Two cert grants on ineffective assistance in guilty pleas

Lafler v. Cooper, 10-209, opinion below: 376 Fed. App. 563 (6th Cir. 2010)

Issue: Whether a state habeas petitioner is entitled to relief when his counsel deficiently advises him to reject a favorable plea bargain but the defendant is later convicted and sentenced pursuant to a fair trial.

Missouri v. Frye, 10-444, opinion below: 311 S.W.3d 350 (Mo. App. 2010)

Issue: Contrary to the holding in Hill v. Lockhart, 474 U.S. 52 (985)--which held that a defendant must allege that, but for counsel's error, the defendant would have gone to trial--can a defendant who validly pleads guilty successfully assert a claim of ineffective assistance of counsel by alleging instead that, but for counsel's error in failing to communicate a plea offer, he would have pleaded guilty with more favorable terms?

In addition to the questions presented by the petitions the Parties are directed to brief and argue the following question:

“What remedy, if any, should be provided for ineffective Assistance of counsel during plea bargain negotiations if the Defendant was later convicted and sentenced pursuant to Constitutionally adequate procedures?”


Permalink 06:08:47 pm, by forhall, 90 words, 19602 views   English (US)
Categories: blog

Norm Pattis: Why Defend The Accused?"

Why Defend The Accused? by Norm Pattis on PattisBlog (Dec. 31, 2010):

"Why the defense of those accused of crimes?" It is a natural enough question. I stop to ponder it today after being accused of a species of immorality for my chosen profession. Defending those accused of rape, murder, robbery, theft, the abuse of children: Who but a monster would chose to walk where demons fear to tread?

Why? Why this choice, when there are so many paths?

I can offer five reasons. Each reflect personal and idiosyncratic convictions and perspectives.

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    "A lawyer shall represent a client zealously within the bounds of the law."
      —§ 1:1, Rule 3(a) (not "should" from CPR Canon 7)

    "I simply want to tell you that there are some men in this world who were born to do our unpleasant jobs for us. Your father is one of them."
      —Harper Lee, To Kill a Mockingbird, ch. 22, p. 197 (1960)

    "The very premise of our adversary system of criminal justice is that partisan advocacy on both sides of a case will best promote the ultimate objective that the guilty be convicted and the innocent go free."
      —Herring v. New York, 422 U.S. 853, 862 (1975)

    "The right to the effective assistance of counsel is thus the right of the accused to require the prosecution's case to survive the crucible of meaningful adversarial testing. When a true adversarial criminal trial has been conducted ... the kind of testing envisioned by the Sixth Amendment has occurred. But if the process loses its character as a confrontation between adversaries, the constitutional guarantee is violated."
      —United States v. Cronic, 466 U.S. 648, 655-56 (1984)

    "The only real lawyers are trial lawyers, and trial lawyers try cases to juries."
      —Clarence Darrow

    "America was neither founded, nor freed, by the well-behaved."
      —Semmes Luckett the younger

    "The right to offer the testimony of witnesses, and to compel their attendance, if necessary, is in plain terms the right to present a defense, the right to present the defendant's version of the facts as well as the prosecution's to the jury so it may decide where the truth lies. Just as an accused has the right to confront the prosecution's witnesses for the purpose of challenging their testimony, he has the right to present his own witnesses to establish a defense. This right is a fundamental element of due process of law."
      —Washington v. Texas, 388 U.S. 14, 19 (1967)

    "[T]he Constitution guarantees criminal defendants 'a meaningful opportunity to present a complete defense.'"
      —Crane v. Kentucky, 476 U.S. 683, 690 (1986) (quoting California v. Trombetta, 467 U.S. 479, 485 (1984)).

    "[O]ur so-called adversary system is not adversary at all; nor should it be. But defense counsel has no comparable obligation to ascertain or present the truth. Our system assigns him a different mission. He must be and is interested in preventing the conviction of the innocent, but, absent a voluntary plea of guilty, we also insist that he defend his client whether he is innocent or guilty. ... [A]s part of our modified adversary system and as part of the duty imposed on the most honorable defense counsel, we countenance or require conduct which in many instances has little, if any, relation to the search for truth."
      —Justice White concurring and dissenting in U.S. v. Wade, 388 U.S. 218, 256-58 (1967)

    We, as criminal defense lawyers, are forced to deal with some of the lowest people on earth, people who have no sense of right and wrong, people who will lie in court to get what they want, people who do not care who gets hurt in the process. It is our job–our sworn duty–as criminal defense lawyers, to protect our clients from those people.
      —Cynthia Roseberry


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