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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

Criminal defense malpractice survives summary judgment; defendant acquitted on retrial

Posted on August 06, 2008
Malpractice claim against criminal defense lawyers whose client was convicted in a first trial the verdict of which was overturned for IAC, and acquitted in a second trial on a weak circumstantial case survives summary judgment. See Legal Profession Blog...

Standards for Supplementary Guidelines for the Mitigation Function of Defense Teams In Death Penalty Cases

Posted on August 06, 2008
Supplementary Guidelines for the Mitigation Function of Defense Teams In Death Penalty Cases have been published in 36 Hofstra L. Rev. 677 (2008).

Judge who bragged of affair with PD in that court disciplined

Posted on August 06, 2008
A Washington municipal court judge who apparently bragged at a party about having an affair with a public defender in that court was disciplined by the state Commission on Judicial Conduct, according to the Seattle Times. According to a statement released by the judicial commission, Hartl's behavior at the holiday party she hosted and her participation in an intimate relationship with a lawyer who appeared before her as counsel failed to uphold the integrity and impartiality of the judiciary...

DA charged with sex with a witness

Posted on August 05, 2008
A Massachusetts DA was charged with a courthouse sexual assault on a witness, according to the Boston Globe. Not just consensual sex, but assault. The former is bad enough.

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VA may require malpractice insurance

Posted on July 29, 2008
Virgina proposes a rule requiring mandatory malpractice insurance, according to a Virginia State Bar press release. The proposed rule is here.

E.D.Ark.: Facts of knock-and-announce violation not even reached under Hudson

Posted on July 29, 2008
Facts of defendant's allegation of violation of knock-and-announce are not even reached because Hudson. United States v. Taggart, 2008 U.S. Dist. LEXIS 56425 (E.D. Ark. July 8, 2008).* Plaintiff's arrest on a child support civil commitment could not be the subject of a federal court suit because the order was facial valid...

No Strickland claim against standby counsel

Posted on July 28, 2008
When defendant waives counsel and has standby counsel, it appears that he cannot pursue an ineffectiveness claim against standby counsel. Even assuming that he can, he fails to satisfy Strickland here. Gripper v. United States, 2008 U.S. Dist. LEXIS 55964 (D...

"Always assume that the client is recording you"

Posted on July 26, 2008
I've been saying this publicly for over 20 years: § 1:1, Rule 5: Say nothing or do nothing that you would be afraid to read about in the newspaper or in a transcript or hear in a courtroom some day. . . . b. Always assume that the client is recording you...

Consent to search computer hard drive waived attorney-client privilege in contents

Posted on July 24, 2008
Defendant corporation's voluntary disclosure of a computer hard drive by a consent search which it permitted the government to copy was a waiver of attorney-client privilege in the hard drive. United States v. General Maritime Management (Portugal) L...

News: TX criminal defense lawyer resists subpoena for papers in his office, so judge issues a search warrant for the lawyer's office

Posted on July 19, 2008
In a move dangerous in both its Fourth and Sixth Amendment implications, a Collin County Texas district judge issued a search warrant for a criminal defense lawyer's office when the lawyer resisted a subpoena. The prosecutor apparently seeks to disqualify defense counsel from the case so he can testify as a witness...

Out of court comments about a judge protected speech?

Posted on July 17, 2008
Does the First Amendment protect a criminal defense lawyer's popular blog that called a trial judge an "evil, unfair witch" and "seemingly mentally ill"? Such is the travails of a Broward County criminal defense lawyer, discussed on Law.com's Attorney Argues His 'Witch' Comments About Judge Are Protected Speech...

Lying to the Court

Posted on July 16, 2008
New article: Fred Zacharias, Fitting Lying to the Court into the Central Moral Tradition of Lawyering, 58 Case West. L. Rev. ___ (2008).

NJ: Failure to cite unpublished authority contrary to position is not a violation of candor

Posted on July 16, 2008
An attorney's failure to cite unpublished authority contrary to his position is not a violation of candor to the tribunal because it is not "controlling authority." The court was clearly troubled by this decision, however, but only to the extent is seems offended by the attorney not citing a case with no binding authority which it admits is the law...

NLJ: Failure to supervise a PI leads to lawyer's indictment?

Posted on July 15, 2008
A lawyer in California was indicted with a PI for the PI's wiretapping in an investigation for the lawyer. See NLJ: Christensen Case a 'Wake-Up' Call for Lawyers on Use of Private Eyes: Regardless of what happens in the criminal case against Terry Christensen, the Los Angeles lawyer accused of paying celebrity sleuth Anthony Pellicano to illegally wiretap some of his opponents, many lawyers are thinking twice about the way they work with private investigators.

PD having to argue own ineffectiveness was a conflict

Posted on July 12, 2008
Defendant moved to set aside his guilty plea for burglary which was to be concurrent to a federal sentence. After his plea, the USMS refused to take custody of the defendant, and that led to the motion to withdraw the plea. The motion of necessity involved a claim his public defender was ineffective...

Alleged overagressive handshake led to assault charge against defense lawyer; charge dropped

Posted on July 11, 2008
Allegedly overagressive handshake with a federal prosecutor led to a defense lawyer being charged with assaulting a federal officer. The Sun-Sentinel.com reports that the government dropped the case. The handshake occurred after a hearing involving the defense lawyer's husband's federal probation...

Denver Post: "Faux lawyer confesses he's a sham"

Posted on July 10, 2008
Update: The Denver Post reports today that Faux lawyer confesses he's a sham, stating that Howard O. Kieffer has admitted in a letter to the judge that he is not licensed to practice law. See the prior post of June 22 here: Non-lawyer holding self out as lawyer? (Hat tip to Lisa Wayne...

OH: Indefinite suspension for abandoning clients and failing to refund unearned fees

Posted on July 09, 2008
An criminal defense lawyer was suspended indefinitely by the Ohio Supreme Court today for abandoning clients and failing to refund unearned fees or keep unearned fees in an identifiable trust account. Cincinnati Bar Assn. v. Lawson, 2008-Ohio-3340 (Ohio July 9, 2008)...

Client abducts lawyer at knifepoint during temporary release from jail

Posted on July 09, 2008
A lawyer arranged for temporary release from a client from jail on a DV case to go to a social security disability hearing. While driving back to the jail, the client pulled a knife on the lawyer, bound his hands with his belt, and abducted him. Video here...

NY: "Premium fee" unenforceable

Posted on July 09, 2008
NY's 1st Dept. holds an oral agreement for a $150,000 "premium fee" at the conclusion of the case, only contemplated in the fee agreement to the extent that one would be discussed at the close of the case, is unenforceable. Sheresky Aronson & Mayefsky, LLP v...

PDs resign murder case after 4 years in pay dispute

Posted on July 08, 2008
Two Indiana Public Defenders resigned from a murder case, with the assent of the trial judge, for pay issues. See Herald Bulletin: Nearly four years after prosecutors brought murder charges against Rex David Delph, his longtime public defenders have withdrawn from the case, saying the county is unwilling to pay about $95,000 for their services and experts to testify at trial and further review evidence...

Taking over a criminal case from another defense lawyer, Miami-style

Posted on July 08, 2008
In the Southern District of Florida blog is this post about how Miami lawyers handle withdrawal and assuming defense of a criminal case: Bill Barzee was headed into the FDC yesterday when he ran into Benson Weintraub on the way out. They ran into each other in front of the tower building...

ADA disbarred for fixing cases

Posted on July 07, 2008
The Legal Profession Blog reports today that an assistant misdemeanor prosecutor was disbarred for fixing cases. No word on the defense lawyer mentioned who was doing it.

Chicago Sun-Times: 430 defendants incarcerated two years or more awaiting trial

Posted on July 07, 2008
A story in the Chicago Sun-Times and a related paper mentions that a murder defendant has been awaiting trial in Cook County for six years, 36 more than five years, 430 more than two years. Cases get delayed for various reasons. Critics say both prosecutors and defense attorneys game the system, with prosecutors wanting time to find witnesses, and defense attorneys hoping evidence will fade...

Plagiarist named to D.D.C. by Bush

Posted on July 05, 2008
On September 9th, there is this post about plagiarizing an article being an ethical violation. Yesterday, we see in the NY Times that a plagiarist has been nominated by President Bush to the D.C. District Court. Ironically, he worked on the toughest judicial nominees for the White House...

"America was neither founded, nor freed, by the well-behaved."

Posted on July 04, 2008
—Semmes Luckett, a Clarksdale, Mississippi lawyer Today, read Thomas Paine's Common Sense, February 14, 1776, and then the Declaration of Independence. This is my July 4th ritual.

CA1: Client impliedly consented to telephone calls from jail to lawyer

Posted on July 01, 2008
Telephone calls from client to lawyer resulted in the lawyer being charged with obstruction and money laundering in an allegedly corrupt effort to file false affidavits to lessing the clients criminal history. Calls from the jail were subject to monitoring, and the client knew it...

Law Review article: Ethics (or lack thereof) of the Duke lacrosse case

Posted on June 30, 2008
Robert Mosteller, The Duke Lacrosse Case, Innocence, and False Indentifications: A Fundamental Failure to "Do Justice," 76 Fordham L Rev. 1337 (2007).

Cert. grant: Recommendation to withdraw insanity plea (only defense) was ineffective assistance

Posted on June 27, 2008
Cert grant today: Knowles v. Mirzayance, 07-1315. Short form of the issue from SCOTUSBlog: Whether the defendant’s lawyer’s recommendation to withdraw an insanity plea constituted ineffective assistance of counsel for purposes of federal habeas law...

Lawyer and murder defendant client assaulted by spectator

Posted on June 26, 2008
Newsday reports that a lawyer (who happens to be a friend of mine) was assaulted in court along with his murder defendant client by a spectator in Nassau County, N.Y. Well, Newday doesn't report that the lawyer was attacked. ABAJournal does.

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