Thursday, May 26, 2011

Appellate Tips From Supreme Court Justices

    There is a cottage industry in America--continuing legal education courses, tapes, lectures, and books--which promises to teach both the experienced and novice appellate lawyer how to write a persuasive brief and how to make a winning oral argument. Some of these materials are specific to a particular court, while others offer generic advice which is applicable regardless of the jurisdiction in which the appeal will be heard.
    Some of the best material comes from appellate judges, although few can improve on Justice Robert H. Jackson's 1951 speech "Advocacy Before the United States Supreme Court," which can be found here
    Scribes, The American Society of Legal Writers, has just published in its journal interviews with eight United States Supreme Court Justices about appellate advocacy . The interviews are conducted by Bryan A. Garner, co-author with Justice Scalia of Making Your Case: The Art of Persuading Judges. 
    I have just started to make my way through the interviews--which run over 180 pages--and I will share the nuggets in future blog entries. You can access all the interviews here. A New York Times article on the interviews can also be found here.

Today's Decisions:  the United States Supreme Court issued four decisions today. In Chamber of Commerce of the United States of America v. Whiting the Court ruled 5-3 that the federal Immigration and Reform Control Act did not preempt Arizona's Legal Arizona Workers Act, a decision certain to add fuel to the controversy over whether states can enforce their own laws directed at immigrants. 
    U.S. v. Tinklenberg addresses the application of the federal Speedy Trial Act; Camreta v. Greene addresses when a party which has prevailed in a United States Court of Appeals can still seek review in the United States Supreme Court because it is displeased with one aspect of the Court of Appeals ruling; and Fowler v. United States provides an interpretation of the federal witness tampering statute, 18 U.S.C. § 1512(a)(1)(C).    

Friday, May 20, 2011

Strauss-Kahn and Bail: Getting It Right

    On Tuesday I wrote that I was surprised that Dominique Strauss-Kahn was not released at his arraignment in the New York City Criminal Court "on a high bail with serious restrictions on his movements." I also said that "other judges will look at the matter."
    Yesterday another judge did look at the matter: Strauss-Kahn's lawyers made a motion for bail review in the Supreme Court, New York County, and the judge there got it right. He ordered Strauss-Kahn's release on high bail with serious restrictions on his movements.
    Bail is, after all, designed to assure the defendant's future appearance in court. The decision of the first judge to remand Strauss-Kahn without bail was a judicial determination that no conditions could be set to assure his future appearance in court. This is implausible, as the release on bail in the past of high profile defendants has shown. One of the conditions set for Strauss-Kahn's release is virtual house arrest with security paid for by him to keep him put. The press is reporting that it will be the same security firm which watched over Bernie Madoff when he was released on bail by a federal judge.
    It was also reported in court yesterday that the grand jury voted to indict Strauss-Kahn on various sexual assault charges, although it appears that the indictment has not yet been formally filed. In New York the grand jury consists of 16 to 23 members, and a vote of at least 12 is needed for an indictment. 
    The fundamental criticism of grand jury proceedings is that they are secret, and there is no judge or representative of the accused present. New York has sought to address the criticism by requiring a judge, upon request of the defendant, to make an in camera inspection of the grand jury minutes to determine whether there was sufficient evidence before the grand jurors to indict the defendant. See, CPL § 210.30. The required judicial inspection of the minutes will generally result in a judicial ruling of sufficient evidence to indict. But it is not a pro forma proceeding: indictments have been dismissed.
   As I noted on Tuesday, in light of the Strauss-Kahn "perp walk" and the denial of bail, there has been widespread overseas criticism of the criminal justice system in New York. The order granting bail should blunt some of this criticism.           

Tuesday, May 17, 2011

Strauss-Kahn, the "Perp Walk," and Bail

    The arrest of Dominique Strauss-Kahn, managing director of the International Monetary Fund, on charges that he sexually assaulted a chambermaid in his hotel room on West 44th Street in Manhattan, will throw an international spotlight on the criminal justice system in New York.
    Strauss-Kahn is a player on the world stage. As head of the I.M.F. he has been at the forefront of the financial bailouts for Greece, Portugal, and Ireland. He was widely expected to step down from his I.M.F. post this summer to seek the Socialist party nomination for the president of France in elections to be held in 2012. He is so well known that newspaper headlines in the foreign press simply refer to him as DSK. The case is a magnet for press attention: a world figure, salacious details, and claims that political intrigue is behind events leading to the arrest. 
    In the circumstances, the American legal system, and the New York City system in particular, will be put under an intense international microscope. Some recent high profile cases in New York which have garnered international attention have involved financial scandals whose courtroom presentations were affected by a maze of sometimes abstruse market and banking data. The Strauss-Kahn case, however, has a simple story line--what allegedly occurred in a hotel room--which everyone can follow and about which everyone will have an opinion.
    I was interviewed for background on the American legal system by France 24, an internet and television enterprise based on the CNN model. Two matters immediately were raised: the police escorting a handcuffed Strauss-Kahn before the waiting press photographers--the "Perp Walk"-- and the bail system. From the European perspective the Walk seemed intentionally designed to humiliate the accused and to plant "Guilty" in the minds of members of the public who may end up on the jury months later. The view was expressed that Strauss-Kahn had been singled out for this treatment but I assured the interviewer, as any reader of the tabloid press knows, that this sort of display of the accused in high profile cases is common.
    There has been litigation over perp walks. In Lauro v. Childs, 219 F.3d 202 (2nd Cir. 2000), the United States Court of Appeals for the Second Circuit ruled that a "staged perp walk"--one in which the accused is displayed solely for the benefit of the press and which serves no legitimate law enforcement purpose--violates an individual's Fourth Amendment right to be free of unlawful seizures. But in Caldarola v. County of Westchester, 343 F.Fd 570 (2nd Cir. 2003), the court held that the perp walk of a former corrections officer--a videotape of the walk was distributed to the press--served the legitimate governmental purposes of informing the public of efforts to root out wrongdoing by public employees, enhancing the transparency of the criminal justice system, and deterring others from wrongdoing.
    There is also foreign disbelief that at his arraignment Strauss-Kahn was denied release on bail. I, too, was surprised that he was not released on a high bail with serious restrictions on his movements--surrender of his passport, electronic monitoring, and so forth. But bail conditions do change as cases progress through the system: other judges will look at the matter, and appellate review of bail is available.
    So far, therefore, in two ways the New York criminal justice system has come up short in foreign eyes : the perp walk and the flat denial of bail. This sort of close scrutiny by those not familiar with the system nor beholden to it will continue, as it should in a free society.      

Tuesday, May 10, 2011

The Race to the Supreme Court

    Ever since the passage of the Affordable Care Act in 2010 there has been a common understanding that the United States Supreme Court will have to determine the constitutionality of the law.
    Litigants have not disappointed us. According to the Department of Justice, 31 lawsuits have been filed across the country challenging a law which President Obama made the centerpiece of his first years in the White House. These cases are starting to reach the United States Courts of Appeals, and from there it is only a certiorari petition away from the Supreme Court which has not been in a hurry to hear them: the Court denied a request from the Attorney General of Virginia that the Court invoke a rarely used procedure to allow Virginia to skip over the United States Court of Appeals and go directly from a United States District Court to the Supreme Court.
    So this morning Virginia and another party challenging the law found themselves instead in the United States Court of Appeals for the Fourth Circuit in Richmond, Virginia. The court was long seen as the most conservative federal circuit court, but appointments by President Obama have made it more evenly divided ideologically. 
    The central issue in most of the challenges to the statute is the claim that Congress does not have the authority under either the Commerce Clause or its taxing power to require that people obtain health care insurance. In the cases argued this morning one District Judge ruled that the insurance provision is constitutional, while another District Judge ruled that it is not. In June, the United States Courts of Appeals for the Sixth and Eleventh Circuits will also hear oral arguments in cases challenging the statute. 
    The two cases argued this morning are Liberty University, Inc. v. Geithner and Commonwealth of Virginia v. Sebelius. A New York Times article on the cases working their way up to the Supreme Court can be found here

Friday, May 6, 2011

Law in the Movies: The Lincoln Assassination Trial

    If you think you have tough cases consider this: A long and bloody civil war is over; the leader of the winning side is assassinated; those alleged to be involved in the assassination plot are sympathetic to the losing side; the tribunal impanelled to try the alleged conspirators consists of army officers grieving the loss of their commander-in-chief; and the defense counsel is a former member of the army on the winning side of the civil war
    The trial, of course, is of those charged in the plot to assassinate President Abraham Lincoln after General Robert E. Lee surrendered to General Ulysses S. Grant at Appomattox Court House in Virginia.
    The lawyer was Frederick Aiken who represented Mary Surratt, one of the alleged conspirators, and the center of Robert Redford's movie The Conspirator.
    Surratt owned the Washington boarding house where the conspirators met, and the movie argues for her tenuous connection to the conspiracy. The film apparently hews to the trial record. 
Inevitably, however, a film script will eliminate many details. I thought the movie a bit flat dramatically, although it can be argued that the film's strength is that it lets the record speak for itself. 
   The film implicitly raises contemporary issues which arise in the wake of September 11, and I suspect that was the director's intent. How does a public trauma such as the assassination of a president or a violent attack on the United States affect the legal system's ability to render fair and impartial judgments? Should these matters be tried by military commissions or civilian juries? A postscript to the film reports that Mary Surratt's son was tried by a civilian jury, the jury was hung, and he was released--a very different fate from that meted out to his mother Mary.
    Historians have rightly focused on the political effects of Lincoln's assassination while the legal aftermath receives little attention. For a large audience The Conspirator will lift the trial from the obscurity it does not deserve.  It is a worthwhile and informative trip to the local movie house for lawyer and nonlawyer alike.   

Tuesday, May 3, 2011

Access to the New York Court of Appeals

Access to the New York Court of Appeals, the state's highest court, is limited. In criminal cases, except for a person sentenced to death, no party--neither defendant nor prosecutor--has a right to appeal to the Court. Instead, permission to appeal must be granted by a Justice of the Appellate Division, or a Judge of the Court of Appeals.
In civil cases, there is a somewhat greater right to appeal, most commonly when there are two dissents on the law in the Appellate Division. See, CPLR § 5601. Otherwise, civil litigants must secure permission to appeal from either the Appellate Division or the Court of Appeals itself, an endeavor informed by often abstruse but very important notions of "finality" and "appealability."  See, CLPR § 5602.
    But whether it is a criminal case or a civil case the rule of thumb is the same: it is difficult to get a case into the Court of Appeals.    
    The Clerk of the Court of Appeals has just issued his annual report for 2010, and the report confirms the rule of thumb. In civil cases there were 1,045 motions seeking leave to appeal and the Court granted only 6% of the requests. This was down from the 7.2% grant rate in 2009.
    In criminal cases there were 2,220  applications for permission to appeal, and the Court granted only 108--or 4.9%. This is a considerable increase from the 2009 grant rate of 3.4%, and the 2% grant rate in 2008. Since his appointment in 2009, Chief Judge Jonathan Lippman has publicly spoken of the need for the Court to hear more criminal cases. See, Full Court Pass, May 5, 2009. The increased number of grants in criminal cases seemingly reflects his success in convincing other members of the Court of the importance of hearing criminal appeals.
    The message of the Report is clear: if a party does not prevail in the Appellate Division, there is simply a very limited opportunity to change the outcome by securing further review in the Court of Appeals. The full Report can be found by going to the Court of Appeals website here.