08/06/08

Permalink 10:29:20 am, by forhall, 313 words, 6 views   English (US)
Categories: blog

Criminal defense malpractice survives summary judgment; defendant acquitted on retrial

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. Correia v. Fagin, SJC-10084 (Mass. Aug. 5, 2008):

The government's evidence regarding Correia's role in the setting of the fire was, as the Federal judge described it, a "patchwork of circumstantial evidence" that, as is apparent from the evidence at the second trial, was largely based on two highly disputable premises: first, that Correia was suffering from severe financial woes and set the fire to recover insurance money; and, second, that Correia purposefully disarmed his fire alarm, resulting in much greater damage to the property. The testimony of defense witnesses at the second trial seriously questioned, if not flatly refuted, both premises. In addition, Correia testified at the first trial and at his deposition in this proceeding that he played no role in setting the fire.

In this posture, the question to be resolved is whether to credit the circumstantial evidence suggesting Correia's guilt, or the evidence suggesting his innocence. That determination is a "factual one, properly delegated to the jury ... rather than being decided by a judge ... based on the judge's impression of how guilty or innocent the plaintiff appears to be." Hicks v. Nunnery, 253 Wis. 2d 721, 755 (Ct. App. 2002). Where questions of triable fact remain, "the determination of actual innocence is rooted in the goal of reliable factfinding," best left to the jury. Salisbury v. County of Orange, 131 Cal. App. 4th 756, 765 (2005).

4. Conclusion. Because we conclude that the defendants have failed to establish that Correia has no reasonable likelihood of establishing that he was actually innocent of the criminal charges, we vacate the allowance of their motions for summary judgment. The case is remanded to the Superior Court for further proceedings consistent with this opinion.

Permalink 09:55:55 am, by forhall, 20 words, 3 views   English (US)
Categories: blog

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

Permalink 09:52:41 am, by forhall, 106 words, 5 views   English (US)
Categories: blog

Judge who bragged of affair with PD in that court disciplined

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.

The commission further said that Hartl's integrity was damaged by her attempts after the party to manage the damage of her unguarded talk and mislead the commission.

08/05/08

Permalink 10:47:47 pm, by forhall, 29 words, 5 views   English (US)
Categories: blog

DA charged with sex with a witness

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.

07/29/08

Permalink 12:05:24 am, by forhall, 21 words, 14 views   English (US)
Categories: blog

VA may require malpractice insurance

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

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    All U.S. Ethics Codes
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      U.S. Attorney's Manual
      28 U.S.C. § 530B
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    Puerto Rico
    IRS Form 8300 (Eng.)
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    Research Links:
    Findlaw (Legal Ethics)
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    ABA/ALI Lawyers' Manual on Professional Conduct $
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    Lexis $
    American Legal Ethics Library
    ABAJournal.com/legalethics
    USF Law Library Legal Ethics Research
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    Defense organizations:
    National Association of Criminal Defense Lawyers (NACDL)
    National Legal Aid and Defenders Association (NLADA)
    Association of Federal Defense Attorneys (AFDA)
    Federal Defenders, fd.org
    Capital Defense Network

    Defense organizations:
    National Association of Criminal Defense Lawyers (NACDL)
    National Legal Aid and Defenders Association (NLADA)
    Association of Federal Defense Attorneys (AFDA) //
       Federal Defenders, // Capital Defense Network

    Law Blogs:
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    Defending People: The Art and Science of Criminal Defense Trial Lawyering
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    Legal Sanity
    LegalTimes.com
    Life at the Bar
    May It Please the Court
    Macando Law (P.R.)
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    Public Defender Dude
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    PULSE Criminal Justice
    Seventh Circuit Blog
    Tales of PD Investigator
    TalkLeft
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    Steve Dallas, Esq. 
    Some Advice From Your Public Defender

    "A lawyer shall represent a client zealously within the bounds of the law."
    —§ 1:1, Rule 3(a) (not "should" from CPR Canon 7)

    "The very premise of our adversary system of criminal justice is that partisan advocacy on both sides of a case will best promote the ultimate objective that the guilty be convicted and the innocent go free."
    Herring v. New York, 422 U.S. 853, 862 (1975)

    "The right to the effective assistance of counsel is thus the right of the accused to require the prosecution's case to survive the crucible of meaningful adversarial testing. When a true adversarial criminal trial has been conducted ... the kind of testing envisioned by the Sixth Amendment has occurred. But if the process loses its character as a confrontation between adversaries, the constitutional guarantee is violated."
    United States v. Cronic, 466 U.S. 648, 655-56 (1984)

    "The right to offer the testimony of witnesses, and to compel their attendance, if necessary, is in plain terms the right to present a defense, the right to present the defendant's version of the facts as well as the prosecution's to the jury so it may decide where the truth lies. Just as an accused has the right to confront the prosecution's witnesses for the purpose of challenging their testimony, he has the right to present his own witnesses to establish a defense. This right is a fundamental element of due process of law."
    Washington v. Texas, 388 U.S. 14, 19 (1967)

    "[T]he Constitution guarantees criminal defendants 'a meaningful opportunity to present a complete defense.'"
    Crane v. Kentucky, 476 U.S. 683, 690 (1986) (quoting California v. Trombetta, 467 U.S. 479, 485 (1984)).

    “If you’ve got the right lawyer with you, we’ve got the best legal system in the world.”
    — Robert Trott, “Justice,” Fox, August 30, 2006, episode 1.1

    We, as criminal defense lawyers, are forced to deal with some of the lowest people on earth, people who have no sense of right and wrong, people who will lie in court to get what they want, people who do not care who gets hurt in the process. It is our job–our sworn duty–as criminal defense lawyers, to protect our clients from those people.
      —Cynthia Roseberry

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