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Important Lesson for Appellate Advocates:
When representing a capital defendant on appeal, don't refuse to discuss parts of the brief you didn't write; do have some familiarity with the record; and, what ever you do, don't make light of your case by describing the evidence against your client as "overkill — excuse the pun." Appellate Law & Practice has the scoop on the Sixth Circuit's opinion today in Franklin v. Anderson.

  UPDATE: In the comment thread, former prosecutor Paul Rosensweig points out that the Ohio state courts are at least partially responsible.
Miguel Andres (mail):
On the other hand, it appears as if the appellant attorney's strategy may have worked, as the CA6 court did grant the writ of habeas corpus, apparently, for ineffective assistance of appellate counsel.
1.9.2006 2:36pm
Dave:
That's an awesome strategy... get such an obviously incompetent lawyer that due process won't allow a conviction. I wonder why I never thought of that....

Dave
1.9.2006 2:56pm
Hans Bader (mail):
Quite the contrary, these tactics of ignorance and non-responsiveness by the defendant's counsel were actually rewarded by the court with the very relief sought -- reversing the sentence based on counsel's ineffectiveness. That's the very thing that counsel sought: a reversal.

This illustrates that reversing sentences based on ineffectiveness of counsel, as the Supreme Court did for the vicious killer in the Rompilla v. Beard case (where Judge Alito rightly voted to keep the torture-murderer in jail, and Justice O'Connor wrongly voted to reverse the sentence), is often perverse.

Keep murderers on death-row, unless the ineffectiveness of counsel calls into question their guilt or innocence, not just some obscure sentencing factor.

Limit the whole ineffective-assistance-of-counsel nonsense as a basis for reversing sentences.
1.9.2006 2:58pm
Paul Rosenzweig (mail):
Now let's put the blame in the right place -- the appellate court denied a continuance to defense counsel who had a family emergency, leaving co-counsel to argue the entire case. Given the size and complexity of most capital cases, that expectation was an impossible one and the defense lawyer was in an untenable position. What has happened is that Ohio courts got what they deserved when they denied a reasonable (at least on the face of the opinion) request.
1.9.2006 3:15pm
OrinKerr:
Good point, Paul.
1.9.2006 3:17pm
Ted Frank (www):
Paul's right, and Appellate Law &Practice, as is their wont, is snarky rather than accurate, which is why I don't read them except when this blog mysteriously chooses to link to them. If the appellate counsel forced to argue the case had attempted to argue those other parts of the brief, the inadequacy of representation wouldn't have been so clear from the record. She zealously represented her client appropriately, and the fault rests with the Ohio Supreme Court--though Boggs should've held them up to more blame.

Hans is right, too, but this is a case involving a juror who had no business being on a jury or operating heavy machinery, so I'm not especially troubled by the outcome.
1.9.2006 4:07pm
nk (mail) (www):
"De purgamentis non curat lex". It's a good rule but nobody follows it. This taking twenty years to execute an animal who killed somebody in order to take his TV set has nothing to do with law or justice. It's just job security for lawyers, judges and the prison industry. Who cares about the victim? This opinion is not law. It is a masturbatory word game. The law is a practical thing, for the orderly function of society and not the continuation of the life of a two-legged animal who should have never been born.
1.9.2006 4:27pm
John Jenkins (mail):
Thanks for that incisive analysis, nk! No one cares about the victim but his or her family. It's a tough universe. Deal with it. The purpose of criminal law is to vindicate a public right, not a private one. For time out of mind we've demanded juries be unanimous to convict as a check against government power and when the jury can't understand simple instructions (sit! stay! innocent until proven guilty!), that corrupts the process and invites government excess. T

hat the outcome of the process bothers you in this case is irrelevant. The purpose of the process is to protect the innocent and because we have drawn the line where we have, that process is over-inclusive. We as a society have chosen (since the founding I might add, check out those Amendments to the Constitution) to have that over-inclusive rule in an abundance of caution against convicting the innocent. If you don't like it, I am sure there are well-reasoned and articulate arguments for the over-inclusive rule; maybe you should become familiar with them and try them out.
1.9.2006 4:49pm
cfw (mail):
NK: "Who cares about the victim?" If this refers to the person who has died, let's recall that the courts have no power to bring him back to life.

Keeping that fact in mind makes it simpler, ethically and philosophically, to support scrupulous observance of 6th Amendment rights to effective assitance of counsel, yes?

As I understand it, having worked as governemnt counsel and habeas counsel in capital cases, a large percentage of family members of homicide victims are not clamoring for executions without regard to 6th Amendment rights.

Before proposing to speak for the family members of the deceased, NK might want to spend some time sorting out their priorities, how they value rights of the accused, etc.
1.9.2006 5:14pm
Deoxy (mail):
What bothers people about cases like this ("Who cares about the victim?") is that there is obvious guilt (even the lawyers call the evidence "overkill"), but the guy gets off on some technicality.

I admit that it bothers me, too, but I have no suggestion as to a solution. Rights are very important, and due process is an important right.
1.9.2006 5:35pm
dc (mail):
I would take Paul's point a bit further and lay a bit of the blame here on the trial judge. Given the colloquy between the court and Juror Arthur, most judges hoping for a clean trial would have gotten rid of her at the time when it seemed she couldn't comprehend the whole burden of proof thing even when explained to her in clear sentences and small words. A biased juror is not a "technicality." The presence of a biased juror denies the defendant a fair trial. While it may seem quite attenuated, victims and their families benefit from fair trials in that there is finality and assurance that the right person is convicted, and in capital cases, put to death.

Outrage at defense tactics and appeals is easy to muster until you've witnessed a person caught up in the machinery of the judicial process and subject to the overwhelming power of the government. Sometimes the process spits out the wrong result. Even when the defendant has received all the process he is due.
1.9.2006 6:19pm
Andy (mail) (www):

What bothers people about cases like this ("Who cares about the victim?") is that there is obvious guilt (even the lawyers call the evidence "overkill"), but the guy gets off on some technicality.


Speaking of technicalities, I don't believe the defendant "got off" (as if he were being found not guilty), but rather, the verdict was overturned (as if a mistrial were declared) so he can be retried. And if the evidence is indeed so overwhelming (and presuming his lawyers are competant and the jurors aren't so manifestly unclear on the law), it is very likely he will be found guilty again.
1.9.2006 6:33pm
Roger (mail):
Ted, You are just angry because the big, bad, AL&P sometimes chooses to point out when you screw up and get facts wrong. (You, for your part, point out when you think AL&P is wrong.) Though, if I were you, I would consider a compliment if they linked to me. Also, Paul didn't blame AL&P for anything. You just want to make it look like people agree with your strange gripe with AL&P. I mean, Jesus Christ, if you don't like something, get a blog and complain about it. Oh wait, you already do.

The rest of the posters that thing that this guy "got off" are a little ridiculous. It isn't as if this guy is going to walk, and they know it. There may be another trial. If there is, the state can do it right.

Hans, It is ridiculous an inaccurate to claim that Rompilla v. Beard resulted in someone being freed. The only issue was the applicability of the death penalty.

NK, Insofar as the opinion of the 6th Circuit binds lower courts in the 6th circuit, it, in fact, is law. Victims and defendants (in jail or executed) alike are free to lobby their legislatures for reform, and they are free to change the constitution if they don't like the guarantees that it provides them. However, the only serious efforts to change the constitution recently involved gay marriage, so I don't think that many people agree with you.
1.9.2006 8:28pm
nk (mail) (www):
They say that a conservative is a liberal who has been mugged and a liberal is a conservative who has been arrested. I have never prosecuted. I have defended for pay and pro bono. I have no illusions about the accused. Perhaps, because the judges I practiced in front of did not either. Did he do it? How bad was it? What should we do about it? There is, unfortunately, a shameful side to it: "To whom did he do it; was he important; should we care about it? Was it just another case of trash victimizing trash and will we be ok in our high rise condos and suburban mansions if we play with due process?"

Anyway, sorry for the rant.
1.9.2006 10:30pm
Ted Frank (www):
One cowardly AL&P poster attacks me anonymously regularly on the blog and on the Greedy Clerks board, but given that he's found precisely one mistaken post in the hundreds of posts I've done for OL and POL, not to mention my published papers, I'm hardly threatened, much less angered, by him.

At best, I find AL&P frustrating, because every single time I've bothered to read it and click through to an opinion of significance, I've learned that the poster either got the holding of the case wrong, missed the most important part of the case, or misstated the significance of the case, and, worse, the posters their don't correct or acknowledge their mistakes. It spends post after post analyzing routinely frivolous immigration and habeas appeals, and then fails to address an important antitrust opinion. As such, it's worse than useless, because (1) it's a positive waste of time to read because of the regular false positives and false negatives, and (2) as a first mover, it creates a barrier to entry that makes it less likely that someone will create a useful blog that actually does what AL&P purports to do.
1.10.2006 6:34am
Jutblogger (www):
While I agree the Court set up the tee, so to speak, by denying the continuance, it's those types of statements and actions by an advocate that cause and allow inmates to believe their own lawyer was working for the government against them. I say this as an advocate, and a former clerk (working mainly with federal habeas petitions), knowing that the distance between distrust and outright suspicion on the part of one's client is a hair's breath.
To laugh and say: overkill, no pun intended, and show that you have not even watched a significant video of your client, I mean, that's precisely the type of thing your client loses sleep over for the rest of their life.
Of course she wasn't working for the government, but to the inmate facing life in prison (save the few granted habeas), they easily believe that she was.
1.10.2006 8:12am
Alper (mail) (www):
Mr. Frank, AL&P doesn't create any barriers to entry. If you want to set up a blog that covers all appellate opinions, you can. Blogspot is free. Typepad is cheap. If you want to set up a blog that covers only opinions you find important, you can. For free. No barriers to entry. The internet is an amazing place where millions of ideas blossom. Like tullips in Holland. In April.

Whether AL&P is a "fist mover" or not is debatable. How Appealing is a blog devoted to appellate litigation that predates AL&P. Indeed, there are other blogs which do similar things. They were started after AL&P. E.g. Decision of the Day, California Appellate Reports, etc. You are free to read them. They were not hindered by the "big, bad, AL&P." All of these blogs are supported by people that do this in their spare time. Usually for no money, and not even for the notoriety.

While you might not find all opinions from all appellate courts useful, some people do. Some people consider antitrust to be boring and useless to their practice. Indeed, outside of DC and NY, many lawyers have never even been involved in something related to antitrust! Some peopel only practice immigration law. Moreover, it is inaccurate to say that most immigration appeals are frivolous. Since there is no right to counsel on appeal from an adverse discrimination of the BIA, all counsel on immigration appeals must certify that their appeals are not "frivolous." Indeed, a quick westlaw search of immigration appeals in the past year revealed only 2 or 3 (depending on how one counts) that the court found them to be frivolous.

Finally, immigration appeals have been the subject of intense scrutiny from just about all circuits. Why? Because, according to various judges (appointed by all the recent presidents), the BIA isn't taking its job seriously. Indeed, Judge Posner and the Seven Circuit all but accused the OIL (that defends the BIA in most circuits) of defending its actions on "frivolous" grounds. So, while you might find a dispute between two companies over who gets to sell luxury goods in one country important, it doesn't register on the radar of someone that represents people that are facing deportation to a country where there just are not many luxuries to be had.

In conclusion, I am sorry that you were forced to read AL&P. In the future, I suggest that you ask your systems department to block AL&P from the internet.
1.10.2006 9:07am
Ted Frank (www):
Alper demonstrates the substanceless snark that substitutes for analysis on his site. Nowhere in my post did I say that all immigration appeals were frivolous or that all antitrust cases were interesting. I merely noted that AL&P fails to provide any useful screening or analysis because its decision to cover a case is unrelated to the merits of the case, or the likelihood that it will be useful future precedent; moreover, when AL&P does choose to cover a meaningful case, its analysis is shoddy and inaccurate. A blog should either be, at a minimum, a linker or a thinker, and AL&P is both a bad linker (in terms of poor editorial filtering) and a bad thinker (in terms of poor analysis).

In short, I made substantive points, and Alper's response addresses none of them, instead tackling unrelated issues and (deliberately or ignorantly) misconstruing my argument, and with unmerited snark at that. A nice illustration of why I don't read the site.

(My earlier post should read "the posters there don't correct or acknowledge their mistakes." Embarrassing typo on my part. Second, because of the ambiguity of the term "frivolous," I should not have used the term in the colloquial sense, and should have said "meritless.")
1.11.2006 12:52pm
AlperSnarkyCalifragalisticEspialodochious (mail) (www):
Mr. Frank, If you want to screen cases go ahead. You run a blog which screens cases for those that, at first blush, seem absurd. This is your right. Indeed, since you are up front about your political views and have made a career of doing this, the First Amendment operates quite nicely in allowing you to "report" on cases you feel will convince people of your political viewpoint.

However, most screening of cases would likely result in some discrimination based on political criteria. In fact, since the constitution guarantees that only live controversies come before the appellate courts (except perhaps the CAVC or the CAAF, and the law on mootness in those courts has not been decides as of yet), each case to come before a federal court will be important to someone.

I appreciate the fact that you don't like AL&P. I am sorry that one blog makes you so mad. (So long as we are sharing, I will admit that Xanga blogs and Livejournals make me mad.) However, AL&P is read by enough people to keep it going. It is cited in briefs, and it is relied upon by many to get a heads-up as to what is important.

Finally, I think you might be interested in some meta-snark: http://plig.schtuff.com/snark

Get it: PLIG is all Snark and it defines Snark ?
1.11.2006 2:22pm