Monday, November 30, 2009

Appellate Practice CLE This Week

If you want to become familiar with the basics of appellate practice in New York, or you simply want to fine tune your appellate skills, this Thursday, December 3, I will be chairing an all-day Continuing Legal Education program on appellate practice sponsored by the Committee on Courts of Appellate Jurisdiction of the New York State Bar Association.

The program, which begins at 9 a.m. and concludes at 4:45 p.m., will he held at the Affinia Manhattan Hotel, 371 Seventh Avenue, at 31st Street.

The program will present insiders' views from Stuart Cohen, the Clerk of the New York Court of Appeals; John W. McConnell, Clerk of the Appellate Division, First Department; and James Pelzer, Clerk of the Appellate Division, Second Department. Justice Angela M. Mazzarelli, of the Appellate Division, First Department, will speak on brief writing and oral argument, and experienced appellate attorneys will address such matters as stays pending appeal, and preservation of error.

The session will conclude in the afternoon with a panel discussion, "Differences in Briefing and Arguing a Case in the Court of Appeals and in the Appellate Division." Panelists will include two experienced appellate attorneys and Chief Judge Jonathan Lippman and Justice Steven W. Fisher, of the Appellate Division, Second Department. Former Justice of the Appellate Division Betty Weinberg Ellerin will chair the panel.

This is a wonderful and valuable opportunity to hear from very experienced appellate judges and attorneys. A 487 page book is included with the program which carries seven CLE credits. Walk-in registration is available.

Friday, November 20, 2009

U.S. Supreme Court: Again, No Denial of the Effective Assistance of Counsel

For the second time in eight days the United States Supreme Court has unanimously reversed a United States Court of Appeals and ruled that a criminal defendant facing the death penalty was not denied his constitutional right to the effective assistance of counsel.

Last week I reported that the Court in Bobby v. Van Hook concluded that the Sixth Circuit had erred when it ruled that the defendant was denied the effective assistance of counsel at the sentencing phase of his capital trial.

Earlier this week in Wong v. Belmontes the Court reversed the Ninth Circuit and concluded that the defendant was not denied the effective assistance of counsel at the sentencing phase of his capital trial. While the Court issued a per curiam opinion, the opinion is notable for the extraordinary detail with which the Court examines the facts to reach its conclusion that the defendant was not prejudiced by the tactical choices made by defense counsel at the sentence hearing before the jury. The opinion can be found here.

Tuesday, November 17, 2009

Second Circuit: The "Fifth Avenue Rule" for New York City Parades

Fifth Avenue in Manhattan is the most famous and most desirable parade route in New York City.

Informally since 1971, and by statute since 2001, the City will not grant a permit for a parade on Fifth Avenue to a "new" parade--a parade which has not previously marched on Fifth Avenue. The City first adopted the informal rule after the number of Fifth Avenue parades increased to 18, and it justifies the "Fifth Avenue Rule" on the grounds of the "over-saturation" of parades in one of the most congested areas of the City--midtown Manhattan.

In International Action Center v. City of New York the United States Court of Appeals for the Second Circuit today upheld the constitutionality of the Fifth Avenue Rule, concluding that the rule is not content based in violation of the First Amendment, but applies equally to all "new" parades regardless of the political or cultural views being expressed in the parade. The decision can be found here.

I had long noticed that the groups parading on Fifth Avenue were the same year after year. I now understand why: the Fifth Avenue Rule.

Friday, November 13, 2009

U.S. Supreme Court Update

Since the opening of the new Term of the United States Supreme Court in October, the Court has issued two opinions. The first, Corcoran v. Levenhagen, I discussed here on October 23.

Earlier this week in Bobby v. Van Hook, the Court unanimously reversed the United States Court of Appeals for the Sixth Circuit and concluded that the defendant was not denied his constitutional right to the effective assistance of counsel at the sentencing phase of his capital trial.

The defendant Van Hook was tried in 1985. The Supreme Court's opinion is notable for two reasons. First, it is highly critical of the Sixth Circuit's reliance on the American Bar Association Guidelines for capital cases issued in 2003, or 18 years after Van Hook's trial.

Second, the Court is critical of the Sixth Circuit treating ABA guidelines as "inexorable commands with which all capital defense counsel 'must fully comply.'" The Supreme Court's opinion emphasizes that ABA standards are "only guides" and are not the "definition" of what is reasonably expected of defense counsel. The decision can be found here.

New Supreme Court Data Bank: the Supreme Court Database, which contains a wealth of information about Court cases since 1953, is now online. It is supported by funding from the National Science Foundation. It can be found at Thank you to for bringing this to my attention.

Tuesday, November 3, 2009

In the Supreme Court Tomorrow: Prosecutorial Immunity

The United States Supreme Court is hearing oral argument in eight cases this week relating to such matters as habeas corpus, bankruptcy, and the fees charged by investment advisers of mutual funds.

For me the most interesting case is Pottawattamie County, Iowa v. McGhee which will be argued tomorrow and raises the question of the limits on prosecutorial immunity from civil suit.

The Supreme Court has long held that prosecutors are immune from civil suit for damages under 42 U.S.C. § 1983 for actions and decisions taken in connection with the prosecution of a case. In Pottawattamie County the claim is that the prosecutor procured false testimony during the investigation of a case and then used that testimony against the defendant at trial. The United States Court of Appeals for the Eighth Circuit concluded that there is no prosecutorial immunity "where the prosecutor was accused of both fabricating evidence and then using the fabricated evidence at trial."

Eight amicus briefs have been filed with the Court representing the views of over 40 states and organizations.

Second Circuit: Costs on Appeal

Pursuant to Rule 39 of the Federal Rules of Appellate Procedure an award of costs can be made to the party prevailing on an appeal.

The United States Court of Appeals for the Second Circuit ruled yesterday in Moore v. The County of Delaware that while the award of costs to the prevailing party is "the norm and not the exception," an appeals court retains the discretion to determine whether the award of costs is appropriate in a particular case. The decision can be found here.

The plaintiff sued law enforcement personnel for an illegal search. While the Second Ciruit had concluded in a prior ruling that the plaintiff's constitutional rights were violated, it also concluded that in the circumstances here the defendants were entitled to qualified immunity from suit, and, therefore, they are the prevailing party on the appeal.

In yesterday's decision the court concluded that in light of the fact that the litigation was brought in good faith by the losing party--he had shown constitutional wrongdoing--and in light of the "meager financial resources" of the losing party, it would not award costs to the prevailing party.