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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

Kuehne conspiracy charge dismissed by court; case in shambles

Posted on December 22, 2008
A federal judge in Miami today threw out the conspiracy charge against Ben Kuehne. See Miami-Herald's breaking news: Judge strikes key charge against Miami lawyer Kuehne: A federal judge in Miami on Monday threw out the central conspiracy charge against prominent South Florida lawyer Ben Kuehne, who faces trial next month on charges of laundering drug-trafficking profits for legal fees...

Best lawyer obit

Posted on December 22, 2008
Doug Tinker, RIP November 10, 2008. News story of his death here. (From one of my list servs.)

WA: Availability and fixed fee retainers permissible

Posted on December 20, 2008
Washington adopts availability retainers and fixed fees paid in advance may be considered earned on receipt if the client agrees in writing effective November 18, 2008. See post here.

NY adopts Model Rules of Professional Conduct effective April 1, 2009

Posted on December 20, 2008
New York [finally] adopts the Rules of Professional Conduct effective April 1, 2009. The Rules are here. I haven't read the rules or found a summary yet. If somebody has a link to a comparison, please provide it. I'm licensed in New York, and they haven't informed me of the rule yet, but they have three months to do it in...

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SC: Failure to intereview witnesses IAC

Posted on December 16, 2008
Failing to interview and subpoena defense witnesses was IAC. Defense counsel wasn't called as a witness at the hearing. The witnesses would have corroborated defendant's version of the events. Lounds v. State, 26571 (S.C. December 15, 2008): At the PCR hearing, petitioner testified that Newell had not done anything to investigate his case...

Cal.: Stein-like coercion not a waiver of A-C privilege

Posted on December 11, 2008
Providing records to DoJ under coercion to avoid corporate prosecution is not a waiver of attorney-client privilege (following Stein). Regents of the University of California v. Superior Court, 165 Cal.App.4th 672, 81 Cal.Rptr.3d 186 (2008): Turning to the circumstances presented here, we agree with the trial court that the disclosures the defendants made to the government agencies did not waive their attorney-client and attorney work product privileges...

NYT: NY suspending jury trial for a month in '09

Posted on December 09, 2008
NYT: NH to suspend jury trials for a month in early 2009 to save money: Jury Trials to Be Halted in One State Feeling Pinch. "The clerks of court in New Hampshire’s largest counties, Hillsborough and Rockingham, said they were rescheduling 179 criminal and civil trials planned for February or March...

MA: Lawyer charged for holding self out as DAs victim/witness advocate and telling witnesses to not show in court

Posted on December 09, 2008
A defense lawyer in Massachusetts has been charged with three counts of witness intimidation and disruption of the court for calling prosecution witnesses while holding himself out as the DAs victim/witness advocate and telling them not to show up in his clients' cases...

NYT: NH suspending jury trials for a month in '09

Using F-word in presence of court can get you contempt

Posted on December 08, 2008
Calling opposing counsel "a fucking liar" as one is leaving court, in the presence of the court, is contempt and resulted in a six month sentence in Cincinnati. In that case, however, the lawyer was representing himself in a suit against a condo association...

SC: Firing three lawyers and going pro se justified denial of eve of trial request for counsel

Posted on December 03, 2008
Defendant fired three lawyers and made an unequivocal waiver of counsel: "I don't want counsel. I want to represent myself. I deny counsel. I waive counsel right now because there is problems [sic] right now. ... I don't want a standby counsel. I want to represent myself and control my own fate and destiny...

Judge: Kuehne indictment "disturbing"

Posted on December 02, 2008
From today's Miami Herald, by Jay Weaver: Judge in Ben Kuehne case calls charge 'disturbing' / A judge cast doubt about the main money-laundering conspiracy charge in the Justice Department's case against prominent attorney Ben Kuehne: A Miami judge who rattled the Justice Department when she threw out the main charge in a major terrorism case could do it again in the prosecution of a prominent South Florida lawyer accused of laundering drug-trafficking profits for legal fees...

Interference with attorney's fees for defense not ground for habeas

Posted on December 01, 2008
An AUSA's interference with a federal defendant's access to fees, justified by the Thompson memorandum, was insufficient to show get the defendant habeas relief or a COA for appeal. United States v. Olis, H-07-3295 (S.D. Tex. November 21, 2008). For further explanation, see the White Collar Blog...

NJ: PD telling judge bail decision was "outrageous" not contempt; it was a 'display of personal pique'

Posted on November 27, 2008
A public defender's 'display of personal pique' in telling a judge his bail decision in the client's case was "outrageous" was not contempt. In re Harkov, A-0432-07T4 (App. Div. Nov. 14, 2008) (unpublished): Nevertheless, we do not believe that Harkov's conduct rose to the level of criminal contempt...

3 years imprisonment for lawyer wiretapping opponent

Posted on November 25, 2008
A lawyer in a child support case was sentenced to three years in Los Angeles for wiretapping his opponent. See NLJ online today.

IN: ADA's listening to attorney-client jail calls did not violate Sixth Amendment where they knew they were being listened to and there was no prejudice

Posted on November 22, 2008
The defendant was in jail on a murder charge, and the ADA listened to nine telephone conversations concerned that there might be an effort to intimidate witnesses with the lawyer. Nothing was found so no further phone conversations were listened to. When the defense discovered it during a sidebar conference in the murder trial, he claimed a breach of the attorney-client privilege and the Sixth Amendment...

ABA survey on the economy

Posted on November 18, 2008
The ABA has an online survey on the economy, accessible here. Take the survey and tell them how bad or good you are doing in this economy. Since the ABA is headquartered in Chicago, as they say, "vote early and vote often." The results will be in the January ABA Journal.

Boston Herald: "Twice as much goes to defend suspects than to prosecute them"

Posted on November 18, 2008
Today's Boston Herald, a story of incredible obtuseness: Twice as much goes to defend suspects than to prosecute them. The article does not even explore the fact that DAs have no overhead and private defense lawyers do, that DAs have all the support they need from the police and defense lawyers don't...

NY2: � 1001 conviction warrants disbarment

Posted on November 14, 2008
A conviction for false statements under 18 U.S.C. § 1001 is equivalent to perjury and warrants disbarment. In the Matter of Port, 2008 NY Slip Op 08743 (2d Dept. November 12, 2008).

Criminal defense lawyer sanction in defamation action over his comments to press

Posted on November 14, 2008
A Long Island criminal defense lawyer representing a person accused of embezzling from a law firm made certain allegations in the press about the victim which led to a defamation suit. He impleaded the lawyer for the plaintiff as a defendant, and was sanctioned $14,000 for doing it...

NH: Criminal defense malpractice does not always require actual innocence; here, motion for suspended sentence

Posted on November 13, 2008
Criminal defense malpractice is not always based on actual innocence. Here, the lawyer's client stated a claim for relief based on negligently handling a motion for suspended sentence that did not challenge the underlying conviction. Hilaro v. Reardon, 2007-39 (N...

Utah complains of diminishing pool of competent capital defense lawyers

Posted on November 10, 2008
Utah Supreme Court complains of the diminishing quality of capital defense lawyers, and it refuses to issue Rule 11 sanctions against he capital lawyers in the case. Archuleta v. Galetka, No. 20070228 (Utah November 7, 2008): IV. ADEQUACY OF COUNSEL IN CAPITAL CASES ¶17 While we accept the trial court’s conclusion that the attorney conduct at issue in this case did not rise to the level demanding a rule 11 sanction, we also agree with the trial court that much of what took place in regard to Archuleta’s second amended petition was unwarranted and unjustifiable under our rules and applicable law...

D.C. lawyer charged with money laundering

Posted on November 07, 2008
A D.C. criminal defense lawyer was accused of money laundering with a dead client, according to ABAJournal.com

SC: Witness bribery requires disbarment

Posted on November 06, 2008
A lawyer convicted of attempted witness bribery in a burglary case was disbarred in South Carolina. In the Matter of Yarborough (S.C. November 3, 2008).

New article: "Defense Perspectives on Law and Politics in International Criminal Trials"

Posted on October 28, 2008
A new article on the role of defense counsel in international criminal tribunals: Jenia Iontcheva Turner, Defense Perspectives on Law and Politics in International Criminal Trials, 48 Va. J. Int'l L. 529 (2008), on SSRN. The Abstract: As international criminal trials become more prominent, a fundamental question persists about their purposes: Are the goals of international criminal trials primarily legal, similar to the objectives of domestic trials, or are they primarily political, such as helping communities heal and compiling an accurate record of the past? Courts and commentators often acknowledge both legal and political purposes of international criminal trials, but fail to prioritize among them...

Bank collapses white collar defense boom?

Posted on October 27, 2008
On Bloomberg News, white collar Defense Lawyers See Bonanza From Lehman, Bear, Other Collapses.

Putting client's criminally derived property in trust account and being convicted of money laundering warranted disbarment

Posted on October 25, 2008
A lawyer was disbarred for handling through his trust account what he learned was criminally derived, and taking fees from the money. He was convicted of money laundering in federal court for his handling of the funds. In re Cunningham, Ga. S08Y1963 (Oct...

Backdating computer files results in sanction

Posted on October 24, 2008
Spoliation of evidence by uploading to a backdated computer resulted in summary default judgment in a civil case against the spoliator. Gutman v. Klien, 03CV1570 (E.D. N.Y. Oct. 15, 2008). The case has an interesting discussion of computer forensics in discovering the spoliation.

Most new law grads to have hard time finding work

Posted on October 24, 2008
On ABAJournal.com this week: New Law Grads Urged to Have Backup Plans because it will be hard getting work.

NPR: "Everyone deserves a defense"

Posted on October 22, 2008
On NPR on "This I believe": Everyone deserves a defense.

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