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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

And you think the economy sucks? Ask any criminal defense lawyer

Posted on April 13, 2008
Criminal defense lawyers are the canary in the legal economic mineshaft. When the economy goes south, we are the first to feel it. Private criminal defense lawyers see their client base shrink and income slide, while public defenders see their caseloads go up, but their pay doesn't or their numbers don't...

DA removed from ongoing death penalty trial because of conflict of an assistant

Posted on April 13, 2008
In Colorado, a death penalty case in progress had the prosecutors removed from the case because one of the assistant prosecutors represented the defendant for about six months years earlier. The case involves a prison killing. DA's office taken off murder case / A judge rules that Carol Chambers' office has a conflict of interest in a death penalty case involving inmates: District Attorney Carol Chambers' office has been yanked from a death penalty case after a judge ruled her office has a conflict of interest and violated professional rules of conduct...

No contempt for alleged violation of vague order

Posted on April 01, 2008
Defense counsel's choice of one of four possible meanings of the trial court's order was not contempt because the order was not a clear as the court chose. In re Elliot, No. 32265 (Idaho March 28, 2008).

"Attorney sues for right to die on his own terms"

Posted on April 01, 2008
A Florida lawyer whose mental state is declining due to ministrokes has sued to declare that he has a "right to die on his own terms," as reported in today's Jacksonville Times-Union.

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Defense counsel telling trial court that defendant would commit perjury required trial court to recuse

Posted on March 31, 2008
Failure of trial judge, who would eventually sit as the trier of fact on defendant's motion to suppress his confession to police, to recuse herself from murder prosecution once defendant's attorney told judge that defendant had confessed to the crime to him and intended to commit perjury deprived defendant of a fair trial and of his right to due process, thus warranting a new suppression hearing and trial, regardless of the fact that defendant's trial was not a bench trial at which trial judge made ultimate decision of guilt or innocence, as the most overwhelming and damning proof of defendant's guilt was the confession to police...

MS: Telling trial judge of client's plan to commit perjury at suppression hearing required recusal of judge

May 1st in Chicago: Symposium: "Lawyers, Law Firms & the Legal Profession: An Ethical View of the Business of Law"

Posted on March 30, 2008
On May 1st in Chicago is DePaul Business & Commercial Law Journal's Sixth Annual Symposium. This year's topic is one of my personal favorites: Lawyers, Law Firms, & the Legal Profession: An Ethical View of the Business of Law. The first session: Lawyers in a Fee Quandary: Must the Billable Hour Die? In a recent ABA Journal article, author Scott Turow proclaimed that “the billable hour must die...

Man sues criminal defense lawyer claiming manslaughter conviction was erroneous because death was by medical malpractice

Posted on March 28, 2008
A man who served three years for manslaughter for punching a man who died now claims his criminal defense lawyer committed malpractice in not investigating the death that may have been caused by medical malpractice. See New Milford Attorneys Sued by Former Client linked from ABAJournal...

Charging personal expenses to one's clients is theft

Posted on March 28, 2008
In a criminal complaint in the S.D.N.Y., a lawyer was charged with a mail fraud for charging personal expenses to his firm, and he resigned when confronted. See Reuters: US lawyer pleads guilty to filing false expenses. The law firm promptly repaid all the clients...

Lawyers under investigation for the method of settling Detroit Mayor's civil case

Posted on March 27, 2008
In the Detroit Mayor's civil case, ten lawyers are under disciplinary investigation for negotiating a settlement to keep the details secret, even from the City Council that had to vote for it. Yesterday's Detroit Free Press: Legal panel investigating lawyers in mayor scandal.

Failure to allege innocence or "colorable claim of innocence" defeats criminal defense legal malpractice claim

Posted on March 27, 2008
Failure to allege actual innocence or a "colorable claim of innocence" in a legal malpractice claim is fatal to the claim. Abuhouran v. Lans, 2008 WL 739903 (2d Cir. March 18, 2008) (unpublished): Under New York law, “[t]o state a cause of action for legal malpractice arising from negligent representation in a criminal proceeding, plaintiff must allege his innocence or a colorable claim of innocence of the underlying offense, for so long as the determination of his guilt of that offense remains undisturbed, no cause of action will lie...

D.C. judge cited for not being "patient, dignified and courteous" for jailing a PD who kept arguing

Posted on March 24, 2008
A D.C. judge has been judicially cited for not being "patient, dignified and courteous" for jailing a PD who kept arguing after being told to shut up. D.C. Judge Cited for Ordering Detention of Talkative PD, on ABAJournal.com: A Washington, D.C., judge who ordered the detention of a public defender who wouldn’t stop talking has accepted a determination that he violated the judicial ethics code...

"Why Are So Many Lawyers So Depressed?" / Crime statistics as an economic indicator, or vice versa?

Posted on March 23, 2008
This is right off the Wall Street Journal Blog: Why Are So Many Lawyers So Depressed?, posted by Peter Lattman, from December 13, 2007. I just found it today: Maybe it’s the Luddite in us, but the Law Blog has been reluctant to vlog. But I guess we’ve been waiting for just the right video...

FL lawyer invites sanctions, and gets them

Posted on March 23, 2008
In a running battle with the Florida Supreme Court, a First Amendment lawyer has been sanctioned and can no longer file pleadings there without another lawyer signing on. He referred to a prior holding as "foolish," one of the more tame comments. Per ABAJournal...

Vague billing records do not support quantum meruit recovery

Posted on March 22, 2008
Vague billing records and a vague fee understanding with the client does not support quantum meruit recovery. Mallin & Assoc. v. Nash Metalware Co., Inc., 18 Misc. 3d 890, 849 N.Y.S.2d 752 (N.Y. Co. Civil 2008).

Masturbatory hand gesture from defense counsel a state's plea offer about his thoughts about a plea offer while looking at the judge constitutes contempt

Posted on March 22, 2008
A masturbatory hand gesture from defense counsel about his thoughts about a state's plea offer while looking at the judge was deemed contempt by an Austin, Texas judge. Lawyer jailed over lewd gesture at judge, in yesterday's Austin Statesman-American: An Austin defense lawyer was jailed last week after being accused of making a lewd gesture at a judge while in court representing a client on charges of driving while intoxicated...

Motion to suppress would have been granted if filed; IAC shown without a hearing

Posted on March 21, 2008
Defendant showed IAC from defense counsel's failure to move to suppress a confession obtained after invocation of right to counsel. Based on the record of the pleadings alone and without a hearing, referring back to the trial record, the defendant would have clearly prevailed on the motion, so counsel was ineffective...

Libby disbarred

Posted on March 20, 2008
Scooter Libby was disbarred today. Watch for his pardon in January 2009, and he'll ask for his law license back.

ABA Litigation: "Secrets & Lies"

Posted on March 19, 2008
On the ABA website, articles from an issue of Litigation from a year ago on Secrets & Lies, with such interesting articles as: • Elaine E. Bucklo, From the Bench: When Lawyers Lie • Bruce A. Green, Deceitful Silence • Kelli L...

Can't win for losing; lawyer suspended for second employee theft of client funds for failure to supervise

Posted on March 19, 2008
Lawyer suspended for second paralegal's theft of client funds; this one hired to clean up the mess of a first paralegal theft. Too-trusting lawyer gets 2nd sanction.

Calling judge "delusional" is contempt

Posted on March 19, 2008
It's official: Calling a judge "delusional" who isn't is contempt. It is also not protected by the First Amendment. State v. Baumgartner, (Ohio App. 6th Dist. March 7, 2008). Presumably, truth would be a defense? {¶ 98} In the very first subpart of the contempt citation, appellant accused the trial judge and the Chief Justice of dishonesty...

Deposition to perpetuate criminal defense lawyers testimony rejected

Posted on March 18, 2008
Plaintiff in a criminal defense legal malpractice action cannot take a deposition to pepetuate testimony of his former lawyer because none of the conditions to do so were present. In re Alexander, --- S.W.3d ----, 2008 WL 659712 (Tex. App. -- Houston (1st Dist...

FL upholds conflict defender office creation

Posted on March 18, 2008
The Florida Supreme Court upheld the creation of conflicts defender officers in Crist v. Florida Ass'n of Criminal Defense Lawyers, Inc., --- So.2d ----, 2008 WL 659435 (Fla. March 13, 2008): The issue in this case is whether the Legislature violated article V, section 18 of the Florida Constitution by enacting chapter 2007-62, Laws of Florida, which creates five Offices of Criminal Conflict and Civil Regional Counsel to handle representation in criminal cases where a public defender has a conflict...

CA2: Probation for lawyer convicted in $100M scheme error

Posted on March 18, 2008
A lawyer involved in a $100M fraud scheme was erroneously sentenced to probation, the Second Circuit rules. See story on Law.com. United States v. Cutler (2d Cir. March 17, 2008).*

SCOTUS hears right to counsel case this week

Posted on March 17, 2008
From Willamette School of Law: Oral argument this week in a right to counsel case: Rothgery v. Gillespie County Argued: 3/17/2008 No. 07-440 Court Below: 491 F.3d 293 (5th Circuit 2006) Full Text: http://www.ca5.uscourts.gov/opinions%5Cpub%5C06/06-50267-CV0...

Pro se defendant acquitted in MD murder trial

Posted on March 17, 2008
Today's Washington Post: Murder Defendant Found Man to Win Case: Himself / High School Dropout Prevails at Pr. George's Trial; three day trial, acquittal in less than an hour: The verdict: Not guilty of first-degree murder. Not guilty of second-degree murder...

Law student depression

Posted on March 15, 2008
Relevant to § 34:7 on lawyer burnout is the recognition of depression and anxiety in law students. See ABA Law Student Group Tackles Depression on Law.com. In the article is a link to The Hidden Sources of Law School Stress by Lawrence Krieger, a clinical professor at Florida State University College of Law...

Misadvising defendant of the immigration consequences of a guilty plea is IAC

Posted on March 15, 2008
Defense counsel's misadvising defendant of the immigration consequences of a guilty plea (i.e., likely deportation) is grounds for coram nobis relief in the U.S. military courts. A mere failure to advise is not IAC, but misadvice is. Denedo v. U.S., 2008 WL 657868 (C...

Defendant in court attacks prosecutor with razor, and defense counsel cut trying to help her

Posted on March 14, 2008
A drug defendant in federal court in Brooklyn attacked the senior drug prosecutor in court with a razor blade and his 72 year old criminal defense lawyer got cut trying to stop him. See the NY Daily News: Courtroom chaos as convict with razor attacks prosecutor, written in typical NYDN's style: A razor-wielding drug thug grabbed U...

Criminal defense lawyer's suicide in California

Posted on March 14, 2008
"[T]he most prominent criminal defense attorney in Orange County" California has apparently committed suicide as a result of depression and chronic pain, according to the O.C. Register: His friends said that Proctor had been in chronic pain for years with a bad back, and was depressed over recent criticism he was receiving in the San Jose Mercury News over his management of the juvenile defenders' contract in San Jose.

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