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Saturday
Dec062014

Achieving Equality in the Courtroom

             The recent events in Ferguson, Cleveland, and New York City have touched a nerve with the public. I think it is more than police violence against blacks. My guess is that a lot of people are protesting the inequity between the classes and the militarization of the police who deal with the lower classes. After all, we don’t see much police brutality against rich people.

           Demonstrating against police tactics is certainly one form of protest, but let me offer another:  serving on a jury. I know most of us hate getting that little postcard or letter in the mail, calling on us to serve on a jury. Our lives are busy. A call from the government to serve our working day on a jury is always going to be an interruption. I have yet to hear anyone say, “Well, let me see, I have nothing better to do. Thought about a matinee or a trip to Disneyland, but jury service sounds like more fun.”  Nope, it ain’t gonna happen.

           Consider this:  the jury system may be the one chance we have for equality in deciding legal disputes. Even though a rich company might have better dressed lawyers and more vivid charts than a little guy, a jury might be able to see through all that and deliver a just result. While judges usually try to be fair, you are dealing with one person who have personal biases. When you go to arbitration as an individual, you may face some prejudice because the arbitrators, who depend on repeat business, may try to appease a corporate party who could use their services over and over again. Juries usually sit for one case involving a party. When that case is over, the jurors are done. No matter how they decide, the jurors are not under the influence of any one party. 

               A judge in Orange County reminds potential jurors of their civic duty:

“Jury trials come at a price.  They’re important.  They’re how our system of law functions. 

People from the community, people just like everyone of you come in, hear a dispute, make a decision, determine what the facts are and apply the law that I give you to the facts, and the case is resolved.

That’s the system that we in this country are devoted to.  It only works when we get a good cross-section of the community to come in and be a jury. It doesn’t work if we take only retired people my age and older. It doesn’t work if we only take students.  It requires that we have corporate executives, and students and retired people and doctors, lawyers, Indian Chiefs, plumbers, electricians, construction workers, people from the community who hear their fellow citizens’ complaints and make a decision.” Judge Andrew P. Banks 

It’s something to think about when you find a notice for jury duty in the mail. I know we would rather be doing other things, but as the judge says, “[T]he only way the system works is when we all step up to the plate and make the sacrifice that serving on a jury requires.  It’s the only duty of your citizenship.”

Tuesday
Oct142014

An Afternoon with Justice Ming Chin

                The Appellate Section of the Orange County Bar Association recently presented an interview with Justice Ming Chin of the California Supreme Court.  Needless to say, I try to attend these interviews, hoping I can pick up a hint or two about how to prepare briefs or be effective at oral argument.  (Even after all of these years, I am capable of learning.) 

                Justice Chin reminded us that the Supreme Court has a heavy work load and a short attention span, presumably because it has to deal with so many cases.  He said, “Take out all of the excess words in your brief.”  Okay, that sounds simple, but believe me, it is hard work.  Longer is easier, but shorter requires a lot of editing.  While you want to take out “excess” words, you certainly don’t want to throw out the important words. 

                He suggested a short introduction in your brief and to put your best foot forward in the first paragraph.  None of this, “This case arises from . . .”  Get right to the point.  I call it the “T.V. Guide” approach.  That first paragraph can set the tone for everything that follows.  It should make the reader want to read the brief and gives the Court a clear idea about what is being sought and why the author should win. 

                Justice Chin suggests a brief with 2-3 issues only.  He says, “The Court is not going to sift through the brief that attaches everything done below.” 

                While Justice Chin finds oral argument important, it might not be important for the reasons you think.  Going into the hearing, a conference memo has already been prepared and circulated.  It is only after the Court has at least four justices who agree that the matter is even set for oral argument, which offers the justices an opportunity to “fine-tune” the opinion.  Get that, not change its mind, but to fine-tune what the justices already decided.  Justice Chin also remarked that on one occasion, the justices concluded “we got it wrong.”  One occasion! 

                Justice Chin also advised attorneys to have a theme for their appeals.  The attorney should be able to put that theme into one sentence.  He also cautioned attorneys to consider what to wear to court.  He mentioned one example of a female attorney who wore a bunch of bangles on her arm that made noise when her hand touched the lectern.  I don’t even like having my purse sitting on the counsel table. 

 

Monday
Sep222014

Charles W. Hokanson Guest Blogger -Anders/Wende Briefs.

Attorney Charles W. Hokanson of Long Beach recently wrote to me concerning my August 12th post on “What is an arguable issue on appeal?”  After reading what he had to say, I invited him to submit a guest blog, which is printed below.  I am not a criminal appellate attorney and welcomed the opportunity for some solid input. 

Here it is: 

“I don’t think the appellate court in People v. Hernandez was rejecting Anders/Wende briefs. Rather, the court was rejecting briefs that assert the attorney cannot find an issue to argue, but the attorney  was still suggesting there were some issues that might be arguable. In other words, the court was rejecting an attempt to have one’s cake and eat it too. 

Anders/Wende briefs are a subject that is unique to criminal appeals, where counsel is appointed to  represent a convicted defendant. Unlike a civil appeal where a party retains counsel who decides whether there are issues to appeal, in a typical criminal case, counsel is appointed by the court of appeal to represent the defendant and has an obligation to find issues to argue on behalf of the defendant/appellant. But sometimes appointed counsel just cannot find anything to argue. Of course, the appointed attorney does not want to raise anything frivolous and get into trouble.     

When that happens, the appointed attorney can file a brief that says simply he or she fulfilled the duties of reading the record and looking for issues, but could not find any issues. This follows the precedent in Andersand Wende (hence the name). What is filed is a short brief that concludes, “I cannot find any arguable issues to attack this judgment.”  

When an Anders/Wende brief is filed, the responsibilities for ensuring that the judgment is correct shifts to the appellate court. While it also offers the defendant a chance to have a say by filing his or her own brief, it also has a duty to review the entire record to determine if there are any arguable issues. Importantly, the court has no such duty where any issues are raised and argued by appointed counsel – it only has to rule on the issues raised.  

In light of these rules, attorneys file Anders/Wende briefs (stating they cannot find any arguable issues) but still discuss their research and analysis while “suggesting” areas that the appellate court might want to consider in its own evaluation of the case. Essentially, these attorneys are trying to have their cake and eat it too. They are trying to trigger the court’s duty to independently analyze the record for issues, but still “suggest” issues for the court to analyze (as well as explain the attorney’s own analysis of all the issues). I believe attorneys do this to justify their efforts and show they really did the required work.  But the Hernandez court is saying do not do that (or perhaps more correctly, we are not going to pay you as appointed counsel to do that). The court is advising, “Take one position or the other. Decide whether there are legitimate issues to argue and, if there are, argue them. If there are not, don’t argue, just submit your Anders/Wende brief and we will take it from there.”  

In my experience, appointed appellate counsel don’t like filing Anders/Wende briefs and work extremely hard to find legitimate issues to argue. The vernacular calls such issues “Wende Busters.” This may have something to do with the pay difference inherent in filing full briefs and arguing to the court (versus a short Wende brief and no argument), but I believe it more likely just a point of professional pride. Appointed appellate counsel are true believers in the rights of their clients and fight hard to vindicate them. They want to find issues to argue and are disappointed when required to file an Anders/Wende brief.” 

Mr. Hokanson can be reached at cwhokanson@towerlawcenter.com.  For a good case on the subject, take a look at the recent case of  People v. Anderson (2014) ___ Cal.App.4th ___ and People v. Kent  (2014) ___ Cal.Rptr.3d ___.  The court of appeal in Hernandez vacated its earlier opinion, and granted a rehearing.  The decision in Hernandez is no longer citeable as published law.  

Sunday
Sep142014

BMW issues a recall notice for 2000-2006 BMW 3 Series vehicles  

First, let me tell you that I think the 3-series BMW is one of the best cars ever designed.  I am speaking from over 15 years of experience in driving two 3-series convertibles.  I love them.  My current car is a 2005 330ic, which I have owned since it popped out of the factory.   

I was a little concerned to receive a notice from BMW that my car might have a defect in the front passenger air bag.   I am “the owner of a potentially affected vehicle,” according to BMW.  Unfortunately, BMW does not have the parts to fix the vehicle, but it will let me know as soon as they become available and I can then make an appointment to fix this “potential” problem.  In describing the problem, BMW wrote, “Our air bag supplier has advised BMW that in the event of a crash necessitating deployment of the front passenger’s air bag, excessive internal pressure could cause rupturing of the air bag inflator, resulting in metal fragments striking and potentially seriously injuring the front  passenger or other passengers.”   Does that mean the metal fragments have the “potential” to strike passengers in the back seat?   

The notice then indicates, “If you are not the only driver of this vehicle, please advise all other drivers and passengers of this important information.”  

What?  The notice provides no guidance in conducting such a conversation.  I can only imagine.  Maybe on the way to a luncheon reservation I might advise my passenger that he or she should push the seat back as far as possible because if we have a collision, metal shards will shower the passenger, possibly embedding themselves in my guest, or even a possible guest in back of the front seat passenger.  Do I tell them before and suggest we drive another vehicle?  I can only imagine how comfortable that will make my guest feel.   My guest might even harbor a suspicion that I am merely seeking to avoid spending gas and want the guest to spend it instead.  

This week I am taking my 89-year-old mother to a doctor’s appointment.  She has asked me to bring the BMW instead of my other car, because she tells me it is easier to get out of the BMW.  In both cars, I either have to give her a big push from the driver’s side or go around to her side and yank her out.  How do I tell my mother about this?  She has survived on the earth for a long time but she worries.  My mother worries that I am going to get West Nile disease from mosquitoes or die a horrible death from Lyme Disease after being bitten by a tick.  How does BMW think my mother will respond when I advise her that my car may produce injuries that one normally associates with exploding bombs? 

 Any suggestions?

Thursday
Sep042014

Court of Appeal reverses conviction for sexual abuse, rejecting evidence of sexual orientation to prove the defendant had a motive to abuse the victim

In People v. Garcia (2014) ___ Cal.App.4th ____, the Fourth Appellate District, Division Three Court of Appeal Court of Appeal reversed a judgment for sexual abuse because the prosecutor relied on the defendant’s sexual orientation as a lesbian to provide a motive for abusing a girl she babysat.
The sexual abuse started when the minor was six years old and continued for four years.  The defendant was hired as the family’s live-in babysitter.  She used digital penetration, sometimes forcefully, and threatened the minor.  The minor had previously complained about the defendant’s inappropriate touching but the mother did nothing until she caught them “in the act” when she discovered them sexually touching in the bedroom.
The prosecutor argued that sexual preference was an issue in the case.  Evidence of defendant’s relationships (or lack of them) came in.  The defense made a motion for mistrial, but the trial court denied the motion.  During closing arguments, the prosecutor urged the jury to consider defendant’s sexual orientation as a motive to abuse the girl.
The appellate court concluded “sexual orientation had no logical bearing on whether [defendant] was guilty of sexually abusing (the minor].”  The trial court did not take the issue off the table in his pretrial rulings.  The appellate court stated, “The lid of the evidentiary box having been left open, the prosecutor pried at it like Pandora until the legal consequences leaped out in closing argument.”  (Opn., pg. 10.)
The court found the prosecutor linked the defendant’s sexual orientation with motive, i.e., the defendant chose to victimize the minor because she was gay.  The court stated,
“We have grown beyond that notion. ‘[T]he modern understanding of pedophilia is that it exists wholly independently from homosexuality.  The existence or absence of one neither establishes nor disproves the other.’ . . . California courts have long recognized that a defendant’s sexual attraction to adults of the same sex has nothing to do with whether they are sexually attracted to children of the same sex.”
(Opn., pgs. 12-13.) (Citations omitted; italics in original.)
The court concluded it did not believe the evidence and argument concerning the defendant’s sexual orientation can be considered harmless beyond a reasonable doubt.  As a result, the judgment must be reversed.  “Due process and the interests of fairness dictate that appellant be judged by what she did, not who she is.  Nothing less will do.” (Opn., pg. 19.)