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Criminal Law

Law Of Criminal Defense

News, information, ethics opinions and analysis relating to criminal defense, legal ethics and professional responsibility.
By John Wesley Hall, Jr.

Post Frequency: 11.2/day

Last Entry: March 25, 2011 at 18:32:28

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

Posted on January 13, 2011
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...

"Public Defenders Sue 23 New Orleans Judges"

Posted on January 12, 2011
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...

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

Posted on January 10, 2011
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...

SCOTUS: Two cert grants on ineffective assistance in guilty pleas

Posted on January 09, 2011
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...

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Norm Pattis: Why Defend The Accused?"

Posted on January 02, 2011
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...

AR lawyer pleads to meth delivery

Posted on December 30, 2010
An Arkansas lawyer pleads to 4 years for delivery of meth, according to the Arkansas Democrat-Gazette (sub. req.). She was sentenced to a drug rehab unit. She was also on tape giving drugs to a client who was told to sell the drugs and give her some of the money back.

MN adds flat fees to Rule 1.5, effective 7/1/11

Posted on December 29, 2010
Minnesota has amended Rule 1.5 to permit flat fees in certain circumstances. Added to Rule 1.5 is the following, effective July 1, 2011: Except as provided below, fee payments received by a lawyer before legal services have been rendered are presumed to be unearned and shall be held in a trust account pursuant to Rule 1...

WI: Representation of victim and defendant in same case a conflict

Posted on December 27, 2010
Representation of the victim and the defendant in the same subject matter results in a public reprimand. In the Matter of Disciplinary Proceedings Against Kostich, 2010 WI 136 (December 21, 2010): ¶15 Attorney Kostich contended that he did not represent G...

Ark. PDs subject to budget furloughs by June

Posted on December 23, 2010
Arkansas PDs subject to 10 day furloughs without pay in FY '11 if the legislature doesn't bail them out in the coming session. The general fund budget is short, and all state agencies have to cut a certain percentage, including the AOC.

BLT: "The Changing Role of Criminal Defense Lawyers"

Posted on December 22, 2010
Blog of the Legal Times: The Changing Role of Criminal Defense Lawyers Is the role of the criminal defense lawyer changing in the wake of a Supreme Court decision that is imposing new obligations on lawyers to advise clients about the consequences of criminal convictions? The American Bar Association's Criminal Justice Section this week established a task force aimed at answering that question and helping criminal defense lawyers understand and meet new responsibilities to clients stemming from the Supreme Court's March decision in Padilla v...

LV criminal defense lawyer indicted for structuring

Posted on December 17, 2010
A Las Vegas criminal defense lawyer was indicted there for money laundering for structuring deposits over a 16 day period of $9,500 or less for a total of $129,200. Law Vegas Review-Journal: BANK DEPOSITS: Attorney indicted over cash / Several financial transactions draw scrutiny of IRS...

SD lawyer on trial for viewing CP in defending case

Posted on December 17, 2010
ABAJ: Defendant Lawyer Tells Jury He Viewed Child Porn for Purpose of Providing Legal Advice By Martha Neil. State law immunizes criminal defense lawyers, but federal law does not: A 62-year-old Sioux Falls lawyer being tried on child pornography charges is telling a federal district court jury in South Dakota that he viewed the illicit images in order to provide legal advice...

ABAJ: Criminal defense lawyer quitting to study religion

Posted on December 16, 2010
On ABAJ today: After 32 Years, Criminal Lawyer Plans to Exit Practice to Study Religion in Jerusalem.

Wisconsin supplements PD budget

Posted on December 15, 2010
A committee of the Wisconsin legislature voted a $5.4M payment to the PD fund, according to the Milwaukee Review-Sentinel.

CA7: Disbarred lawyer could not resign from bar of court without recognizing reason

Posted on December 15, 2010
The Seventh Circuit would not permit a lawyer to simply resign where the lawyer was already disbarred in state court for overbilling clients. Resignation without recognizing the reason is not enough. In re Wick, D-10-0015 (7th Cir. December 9, 2010): When an attorney is removed from the roll of attorneys admitted to practice before this court, we don't want to leave the impression that the separation was innocent if in fact it was precipitated by the attorney's wrongdoing...

ABAJ on lawyer stress

Posted on December 10, 2010
From ABAJ: Lawyers Under Stress Are Critical, Cautious and Distant, Personality Test Shows: The tests, conducted in collaboration with Hogan Assessment Systems, found that, on average, the lawyers: • Generally do not seem to have a strong need for public recognition, although there is a subset of lawyers who seem to crave recognition and notoriety...

Denver Post: "Suit argues all defendants deserve counsel from the start"

Posted on December 09, 2010
Suit argues all defendants deserve counsel from the start by Felisa Cardona in the Denver Post: Colorado's long-standing practice of withholding public lawyers from defendants in minor cases until after they have considered a plea deal is now being challenged in federal court...

GA: There is a due process and fair trial right to an interpreter

Posted on November 30, 2010
And, defense counsel could be ineffective for not insuring it. Ling v. State, S10G0460 (Ga. November 22, 2010): For the reasons that follow, we hold that one who cannot communicate effectively in English may be effectively incompetent to proceed in a criminal matter and rendered effectively absent at trial if no interpreter is provided...

An iPhone and Android app on your rights

Posted on November 30, 2010
"An app for that": "Say No to Police," a quick summary of Florida law on "gives you instant advice on rebuffing aggressive cops" written by a Florida criminal defense lawyer.

NY3: NY law requires written assignment for defense counsel to collect bail proceeds under fee agreement

Posted on November 28, 2010
Without written proof of an assignment to the law firm, defense counsel could not collect the funds posted as bail at the conclusion of the case. Without the assignment, statute required return of the funds to the person who posted it. Shields v Carbone, 2010 NY Slip Op 8661, 2010 N...

IA: $1500 fee cap for indigent criminal appeals unconstitutional

Posted on November 27, 2010
The Iowa Supreme Court holds that the $1500 fee cap on indigent appeals is unconstitutional. This is a remarkable opinion worthy of being a brief law review article itself considering the NLADA and ABA standards, cases considering "takings" of counsel's time, counsel's standing, and systemic ineffective assistance from a fee cap creating a disincentive for defense counsel to adequately perform in indigent criminal appeals...

IL sanctions PD for getting document he would have gotten the wrong way

Posted on November 20, 2010
On ABAJournal.com: Censure PD Who Copied Docs He Found on Machine & Was Entitled to Discover, Panel Says: A longtime senior lawyer in an Illinois public defender's office should be censured for photocopying documents he was entitled to discover, but had not yet received through normal channels, an ethics hearing panel has recommended...

ABAJ: Bankruptcy court: It's not a lawyer's job to be servile to the client's wishes

Posted on November 19, 2010
On ABAJournal.com: Bankruptcy Judge Sanctions Lawyer, Warns About Being ‘Sequaciously Servile’. The moral: Just because a client tells you something is fact, you shouldn't uncritically believe it. It is not a lawyer's job to act like a butler indulging every client whim...

SC indigent defense funding "plummets"

Posted on November 19, 2010
From a press release: Funding for Indigent Criminal Defense in South Carolina Plummets. Budget cuts.

Confidentiality: "Reporter Overhears Lawyer?s Conversation After Failed Hang-Up"

Posted on November 13, 2010
Make sure your cell phone hangs up: Reporter Overhears Lawyer’s Conversation After Failed Hang-Up on ABA Journal.com, linking to an article in the Houston Chronicle. Remember the California Governor's race and the errant words on the phone call with the reporter?

D.P.R.: Audio and video recording of attorney jail visit not protected because attorney was a co-conspirator

Posted on October 30, 2010
While this defendant was the target of a eavesdropping order, he had no standing to challenge a recording at the jail between a lawyer and another person involving him where bribery of a witness was discussed. United States v. Ramos-Gonzalez, 2010 U.S...

FreeP: Lawyer on trial for conspiracy in telling biker gang members to remain silent?

Posted on October 29, 2010
In the Detroit Free Press: Drug accusations fly in court / Witness says lawyer gave Viagra, advice, by Tresa Baldas. A lawyer whom Mayor Dave Bing tapped to help turn around Detroit hung out in strip clubs with drug-dealing motorcycle club members who turned to him for free legal advice and Viagra, according to testimony Thursday in federal court...

CT triple homicide defense lawyer almost in contempt for violating gag order to get facts straight

Posted on October 26, 2010
Komisarjevsky lawyer avoids contempt hearing, for now by William Kaempffer, New Haven Register, with video at the link: An attorney for one of defendants in a Cheshire triple homicide argued Tuesday he was merely setting the record straight — and not intentionally violating a court-imposed gag order — when he told reporters on the courthouse steps last month that his client did not rape an 11-year-old victim before she was killed...

IA: Plagiarizing a law review article in a brief gets a reprimand

Posted on October 23, 2010
A lawyer was reprimanded for plagiarism of a law review article and putting it into a brief in a bankruptcy case. The judge inquired of the lawyer to certify that he wrote it because it was of "unusually high quality." He admitted that he did not, and he self-reported to the state disciplinary authorities...

"Overworked PD Accused of Challenging Prosecutor to Fight"

Posted on October 22, 2010
ABAJ: Overworked PD Accused of Challenging Prosecutor to Fight: A public defender in California who lost about a third of his lawyers due to budget cuts this July is accused of challenging a prosecutor to fight for refusing a delay in a drug case. San Joaquin County Public Defender Peter Fox is under criminal investigation for allegedly making the comment during an expletive-laced tirade, the Stockton Record reports...

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