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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

Convicted lawyer who obtained post-conviction relief reducing crimes to misdemeanors denied reinstatement

Posted on June 25, 2008
A lawyer disbarred as a result of a felony stalking conviction involving his obsession with his legal secretary had the underlying conviction reduced to a misdemeanor in post-conviction proceedings. His request for reinstatement was denied on the merits of the misconduct, not whether it was a felony...

SCOTUS: Right to counsel attaches at the first appearance

Posted on June 23, 2008
SCOTUS today: Right to counsel attaches at the first appearance, and the right is clearly established. Rothgery v. Gillespie County, 07-440, 2008 WL 2484864 (U.S. June 23, 2008). From the Court's Syllabus: Texas police relied on erroneous information that petitioner Rothgery had a previous felony conviction to arrest him as a felon in possession of a firearm...

ADA "threw" case to aid innocent defendant he was ordered to prosecute

Posted on June 23, 2008
NY Times today: Doubting Case, a Prosecutor Helped the Defense, about an ADA who spent two years re-investigating a murder case concluding that the defendant did not commit the crime. Because he was ordered to prosecute the case anyway, he admits to throwing the case in the interest of justice...

Non-lawyer holding self out as lawyer?

Posted on June 22, 2008
Yesterday's Denver Post: Evidence against "attorney" / Records show a frequent counsel is a felon with no U.S. license, by Felisa Cardona. The article discusses a federal case tried in Colorado which the former lawyer defended. [Some dispute whether he ever was a lawyer in the first place...

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Arbitrary denial of continuance for defense counsel warranted habeas relief

Posted on June 20, 2008
Trial court's denial of a continuance for substitution of counsel for a one day trial was arbitrary and error and justified habeas relief [even under AEDPA's high standard]. Carlson v. Jess, 526 F.3d 1018, 1025-26 (7th Cir. 2008): First, we examine whether the trial court's denial of Carlson's motion for substitution of counsel and a continuance was arbitrary...

SCOTUS: Mentally ill lose right to self-representation

Posted on June 19, 2008
SCOTUS holds that a mentally ill defendant could be prevented from representing himself under Faretta even though he was competent to stand trial. Indiana v. Edwards, 07-208 (June 18, 2008).

Hood finally gets a last minute "stay"; at least he wasn't executed

Posted on June 18, 2008
Charles Hood finally got a stay at the last minute, but the Nine Horsemen of the Apocalypse overturned it, but the execution still did not take place. After legal wrangle, state halts execution by Steven Kreytak: In a Texas case closely watched by legal ethicists, Charles Dean Hood was spared execution late Tuesday night because legal appeals delayed the execution until the midnight deadline...

Hood stay denied by Texas Court of Criminal Appeals

Posted on June 17, 2008
It is reported on the Legal Profession Blog this afternoon that the Texas Court of Criminal Appeals, the Nine Horseman of the Apocalypse, has refused to stay the execution of Charles Hood for tonight despite allegaions that the Prosecutor secretly dated judge in death penalty case?.

Money back guarantee?

Posted on June 16, 2008
A Florida traffic case defense firm's 100% money back guarantee advertisements questioned by clients and apparently judges. See East coast law firm’s 100 percent ‘not guilty’ guarantee questioned by Aisling Swift.

Ninth Circuit affirms reversal of death sentence for IAC in penalty phase

Posted on June 15, 2008
Defense counsel was ineffective for failing to adequately prepare a penalty phase where the client was sentenced to death. Both the called witnesses and the defendant were unprepared to testify in any meaningful way, and there was a mitigation case to be made...

Prosecutor secretly dated judge in death penalty case?

Posted on June 14, 2008
An article yesterday on ABAJournal.com links to this article: Judge, prosecutor secretly dated, appeal says / Death row inmate set for execution Tuesday says he didn't get impartial trial by Chuck Lindell. According to the article below the following quote, defense attorneys in the original appeal tried to confirm it...

Appeal reinstated on payment of sanction for lawyer delay

Posted on June 14, 2008
Appeal dismissed for failure to prosecute after several extensions and a final deadline would be reinstated if the lawyer paid a $5,000 sanction, half to the court and half to the client. Gross v. Town of Cicero, Illinois, 06-4042 (7th Cir. June 6, 2008)...

AP: "Defense attorney battling for alleged al-Qaida terrorist"

Posted on June 13, 2008
AP has an interesting story entitled "Defense attorney battling for alleged al-Qaida terrorist" which shows the fine tradition of military defense lawyers in representing even alleged war criminals.

Public defender crisis looming in some states

Posted on June 13, 2008
On ABCNews.com today, Facing 'Crisis,' Public Defenders May Refuse Cases, by Scott Michels. Faced with what they call severe budget shortfalls, several public defender offices across the country say they may soon begin turning away thousands of poor criminal defendants...

Criminal defense lawyer's malpractice lawyer can copy client's files before turning them over

Posted on June 12, 2008
The malpractice lawyer in a criminal defense legal malpractice case could copy the files of the suing client before turning them over to successor counsel in the client's habeas case. Anderson v. Gordon, Muir & Foley, LLP, AC 27984 (Conn. App. June 17, 2008).

Another lawyer punched by a client in court today

Posted on June 11, 2008
Double murder defendant today punched his lawyer in the face as he was led into court for sentencing. See Courtroom mayhem: Double killer attacks his lawyer before sentencing in the Minneapolis-St. Paul Star Tribune.

Even if public defender could be sued under � 1983, setting aside the conviction first would be required

Posted on June 10, 2008
Public defender could not be sued under § 1983, and, even if he could, setting aside the conviction first would be required. The claim against the criminal defense lawyer was also frivolous under PLRA. Bell v. Newton, 2008 WL 2329193 (S.D.Ala. June 4, 2008)...

Special prosecutor sought by lawyers subject to sanctions in

Posted on June 10, 2008
Civil lawyers the target of a sanctions hearing for misnaming two defendants in a toxic tort case sought and received a special prosecutor for the sanctions process, according to the Recorder on Law.com. The master's report was issued in March for the Ninth Circuit.

Public defender overbilling?

Posted on June 07, 2008
A juvenile defender was accused by the Illinois disciplinary authorities with billing the county 20 hours a day for 90 days and over 24 hours a day 38 times and 40 hours one of those days. The complaint is here. LegalProfessionBlog's post is here.

Public defender overbilling?

Eric Holder as Attorney General?

Posted on June 05, 2008
When I saw last night that Eric Holder is one of Sen. Obama's three vetters of VP candidates, I said that he would be Attorney General. ABAJournal.com makes the same observation today.

California considering barring flat rate fees and permitting prosecutors to contact accused persons

Posted on June 03, 2008
California has proposed amendments to is Code of Professional Conduct. The proposal is nearly 300 pages long. Of interest to criminal defense lawyers are a prohibition on flat fees (1.5(f)) and permitting prosecutors to settle civil claims in a trade off when settling criminal cases (Rule 3...

Top 100 criminal justice blogs

Posted on June 03, 2008
This website was listed as one of the top 100 criminal justice blogs this week. So was my other blog, FourthAmendment.com.

4th Cir.: New CJA plan that provides for explanation of denied fees satisfies due process and retroactive application to fees is not constituitonally required

Posted on June 02, 2008
Fourth Circuit holds in an unpublished opinion that denial or trimming of fees under the Criminal Justice Act (18 U.S.C. § 3006A) prospectively has safeguards for an explanation of why and that satisfies due process. Retroactive application of the standards to prior fee requests not required...

Fortune magazine on ethics opinions for sale

Posted on May 30, 2008
Fortune magazine has an interesting article about ethics opinions for sale: Blowing the whistle on unethical lawyers / Legal professor William Simon aims to shame colleagues who sell their opinions for the right price, by Senior Editor Roger Parloff. The article discusses a coming Stanford Law Review article...

Accessing lawyer wife's firm e-mail

Posted on May 28, 2008
Accessing lawyer wife's firm e-mail account and then e-mails of seven other lawyers in that firm warranted suspension. Lawyer Disciplinary Board v. Markins, 33256 (W.Va. May 23, 2008). See Twenty First Century Misconduct on Legal Profession Blog and the post on ABAJournal...

Outsourcing to India violate privilege?

Posted on May 25, 2008
A DC law firm has sued over legal documents outsourced to India that could be read by the government because international e-mail is subject to interception and that violates privile.

Law.com: "11th Circuit to Consider Whether Right to Counsel Is Lost When Assets Are Frozen"

Posted on May 24, 2008
Law.com today has this article: "11th Circuit to Consider Whether Right to Counsel Is Lost When Assets Are Frozen": Even after being stripped of the money, the Kaleys didn't qualify for a federal public defender. U.S. Magistrate Judge James M. Hopkins in West Palm Beach concluded the couple could liquidate their 401(k) retirement accounts and their children's tax-deferred college funds -- at a cost of a $200,000 tax penalty -- to pay for a cut-rate lawyer...

Not striking ADA was strategic choice and not IAC

Posted on May 23, 2008
Defense counsel was not ineffective for not challenging as a juror an ADA from the same office prosecuting the case. This was purely a matter of trial strategy. State v. Morales, --- S.W.3d ----, 2008 WL 2081617 (Tex.Crim.App. May 14, 2008): For purposes of argument, we will assume that Wyatt was challengeable for cause under the implied bias doctrine...

Law firm heirarchy and following the rules

Posted on May 23, 2008
On the psychological effects of the hierarchy of law firms and conformity to ethical norms or influences, see Unethical Obedience by Subordinate Attorneys: Lessons from Social Psychology by Andrew M. Perlman of the Suffolk University Law School.

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