Category Archives: Appellate Law

Not Dead Yet

The Volokh Conspiracy links to this opinion by Judge Boyce Martin of the Sixth Circuit, where she declares:

Because collateral estoppel precludes future litigation of one specific issue, and because that is what the state effectively asks us to find, we construe their argument as one for collateral estoppel rather than res judicata, despite the substitution of one term for the other in the state’s brief.

Noting in a footnote: “Because Latin is a dead language anyway.”

But wait! Judge Alice Batchelder rides to the rescue! In her concurring opinion, she writes:

I concur in Judge Martin’s opinion.
I write separately only to express my suspicion that, like the reports of Mark Twain’s death, see The New Dictionary of Cultural Literacy (Third Edition, 2002), the report of the death of Latin in the majority opinion’s footnote 5 is greatly exaggerated.

Hooray for Judge Batchelder! Lingua latina per aeternam!

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AltLaw Beta: Free Boolean-searches of SCOTUS/Federal Courts of Appeal Decisions

AltLaw

AltLaw, the newest and one of the more promising internet legal resources to hit the scene, is now up and running and available for free public advanced searches of case law.

It’s a sort of Google for Supreme Court and Federal Circuit Courts of Appeal decisions, and clearly holds promise to democratize the availability of relevant and useful case law in the States. LEXIS and Westlaw, of course, have long monopolized the availability of such information in any searchable or useful form, and have charged a pretty penny to those that want to easily search case or other resources (via “Natural Language” or the far more powerful, but underused, advanced/Boolean search engines). AltLaw now makes Boolean searching entirely free.

The catch: at startup, AltLaw’s coverage of SCOTUS case law extends fully only back to May 1991, and the Federal Courts of Appeals in a more irregular spread–the 7th Circuit back only to October 1999, and at best, the 1st Circuit back to 1992. Complete details about AltLaw’s initial coverage are posted HERE.

AltLaw is a joint project of Columbia Law School and the University of Colorado Law School. The site touts, amazingly, advanced searching options akin to LEXIS and Westlaw, including proximity searching, Boolean searches, concentration searches, wildcard searches (my fave), among others. The site also intimates that West Reporter Citations will be added.

Yet another step in making U.S. case law readily available to the citizenry, along the lines of what Cornell’s indispensible Legal Information Institute has done, for example, in making the U.S. Code and Code of Federal Regulations, among LII’s many other items, very quickly searchible and accessible for free.

Thanks to fellow appellate litigator Greg May at The California Blog of Appeal, and Harvard’s Info/Law for the story.

Lime

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U.S. Court of Military Commission Review: U.S. v. Khadr

The first hearing of the U.S. Court of Military Commission Review is scheduled to hold its first hearing on 24AUG07. The hearing will hear argument regarding the dismissal of charges against Omar Ahmed Khadr because of a flaw in the Combatant Status Review Tribunals for Guantanamo Bay prisoners. See United States v. Khadr.

yojoe

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Crack v. Cocaine: The Supreme Court to Rule on Decreased Punishment for Powder Cocaine

The Supreme Court added to its docket United States v. Kimbrough, 06-6330, which involves the application of the United States Sentencing Guidelines (“Guidelines”).

Note – Crack cocaine (hereinafter “crack“) is cocaine hydrochloride that is processed with baking soda to form of cocaine capable of being smoked. Cocaine in powder form will be referred to as “cocaine.”

Synopsis – Kimbrough was sentenced to 120 months for possession of 50 grams of crack cocaine. The range under the Guidelines was 168 – 210 months. The judge made the downward departure from the Guidelines based upon his disagreement with the sentencing disparity between crack cocaine and powder cocaine. This disparity in sentencing is known as the “100:1 crack/powder ratio,” which means that a defendant who deals 100 pounds of powder cocaine faces the same punishment as the defendant who deals 1 pound of crack.

Issue – The Court will decide whether a judge may deviate from the Guidelines if he disagrees with the decreased punishment for powder cocaine by giving a shorter sentence than required.

State of the Law – In United States v. Booker, the Supreme Court held that sentence enhancements, under the Guidelines, based upon facts found by the sentencing court and not a jury, violated the Sixth Amendment. The Booker majority remedied this Continue reading

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NMCCA: US v. Ledbetter (Aug 07)

The Navy-Marine Corps Court of Criminal Appeals released U.S. v. Ledbetter, No. 200500009, unpublished op. (N.M.Ct.Crim.App. 14 Aug 2007). SPCM, military judge alone, guilty pleas, Arts 80, 81, 91, 95, 108, and 134. Sentence: 5 months, E-1, forfeiture of $500 pay per month for 6 months, and BCD. Appellant claimed (1) improvident plea to resisting apprehension, (2) he was deprived of right to counsel because trial defense counsel never contacted him regarding submission of clemency matters after NMCCA’s remand, (3) ineffective assistance of counsel prior to first CAX, and (4) post-trial delay.

The Court held: assignments of error 1 and 3 were without merit, and withheld ruling on 4. NMCCA resolved AOE 2 by setting aside the convening authority’s action (the 2nd one) and returned the case to the JAG for “proper post-trial processing.” On remand, the trial defense counsel, LT W, received the second SJAR and indicated by Continue reading

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Lawyering Tip: RSS Legal Feeds

If any of you use RSS readers or depend on the internet for news related to your profession (or simply for enjoyment), you should be familiar with Netvibes. Netvibes is perhaps one of the more elegant and streamlined RSS readers out there. It’s been my intention to post a full review of the site in a future posting.

Until then, I’m publishing my law-related feeds in the shared section of Netvibes. The feeds, almost 50 sites in all, are a compilation of several dozen of the best legal sites and blogs out there, and via Netvibes, makes reading the content quite easy.

Simply float your mouse over a given headline, and you’ll get a bubble with a paragraph selection of the news item or blog post. Click on the headline, and you’ll be given a mini-RSS reader within Netvibes, without actually having to exit to another website. I’ve played around with software-based and web-based readers, including Windows Live, Google, and others, but I’ve continued to return to Netvibes as my main reader. The interface is very fast, and makes quickly locating the articles of interest a breeze.

Harry Lime’s Legal Feeds via Netvibes. Enjoy! And please send any good sites my way, I’d be glad to add to the pot.
HL

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Ex-Military Smackdown: Court of Federal Claims Cracks the Whip Against “Razor’s Edge of Frivolity” Claims

In five recent cases last week, two of which are by ex-military members , the Court of Federal Claims has dismissed the cases because “Plaintiff’s counsel has submitted filings which contain numerous errors and exhibit a fundamental misunderstanding of this Court’s jurisdiction.” (emphasis added).  The court referred the matters, along with three other cases, to the Chief Judge under Rule 83.2(d), the rule governing diciplinary proceedings for “misconduct or allegations of misconduct” by the attorney.

The two cases involving ex-military plaintiffs are Janaskie v. United States, No. 06-602C (Fed. Cl. July 31, 2007) and Pope v. United States, No. 06-446C (July 31, 2007).  The other three cases were Locke v. United States, No. 06-629T (Fed. Cl. July 10, 2007), Leshin v. United States, No. 06-637T (Fed. Cl. Jan. 11, 2006), and Cherbanaeff v. United States, No. 06-640T (Fed. Cl. July 12, 2007).  Four, and I would presume all five of the cases have the same plaintiffs’ counsel (though I cannot locate the fifth, Leshin). 

In the two miltary cases, involving a retired U.S. Air Force senior master sergeant and a discharged member of the California National Guard, the plaintiffs both claimed that the Government was required to compensate them for violations of the Uniform Code of Military Continue reading

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NMCCA: US v. Bossheart (Jul 07)

26 July 2007, Navy-Marine Corps Court of Criminal Appeals released U.S. v. Bossheart, No. 200602420, unpublished op. (N.M.Ct.Crim.App. 26 Jul 2007). GCM, military judge alone, guilty pleas to Arts 80 and 8 specs of 112a drug offenses. Sentence: 3 years, E-1, BCD. CAX approved but per PTA suspended all confinement in excess of 2 years 6 months from 12 months from date of CAX. Appellant claimed MJ’s failure to announce findings to one of the 8 specifications of 112a drug offenses prejudiced him. Appellant cited US v. Diaz, 40 MJ 335 (CMA 1994), where CMA reversed and dismissed NMCCA’s opinion in part where CA had approved findings per the SJAR, (1) where the SJAR had omitted findings of 2 of the charges, and (2) there was no evidence the CA considered the record of trial when taking action.

Court held: Statutory right of announcement of findings indeed is a statutory right of an accused, but not all errors are prejudicial. NMCCA said it followed the Army in US Continue reading

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Supreme Court or YouTube: Scott v. Harris

Scott v. Harris, 127 S.Ct. 1769 (2007), involves a 42 U.S.C. § 1983 action against a state police officer. Harris was involved in a high-speed chase, during which he was being chased by the police. Deputy Scott pulled Harris over by hitting the rear of his car, known as Pursuit Intervention Technique, attempting to get him to come to a stop. Harris lost control, crashed, and thereafter found his limbs inoperative.

Harris sued Deputy Scott on the theory that hitting the back of his vehicle was excessive force resulting in an unreasonable search under the Forth Amendment. The 11th circuit held that Deputy Scott was not entitled to immunity, because the law was sufficiently clear at the time to give reasonable law enforcement authorities fair notice that ramming a vehicle under the circumstances of this case was unlawful.

The Supreme Court found that the threshold question of whether Deputy Scott violated the Fourth Amendment was resolved, in large part, by the video Continue reading

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UPDATE: Court of Military Commissions and Review Rules available

The Pentagon has freshly updated and made available to the public a cartload of Military Commissions materials. Earlier this month we noted that the site hadn’t been updated for several months. That’s been remedied. On the site are:

  • Rules of Practice for the Court of Military Commission and Review
    • After a very quick perusal, I notice nothing too remarkable here–they look like, as we were led to suspect, a typical Court of Criminal Appeals’ rules, modified for the Commissions context. Many rules are footnoted “taken from ACCA (Army Court) rule” this or “Court of Appeals for the Armed Forces Rule” that. I will note that Rule 30 states that “The Clerk of Court is authorized to release unclassified filings with the CMCR and CMCR decisions. Filings and decisions will be available at: http://www.defenselink.mil/news/commissions.html.” That openness is certainly welcome, hopefully the link will be continually and timely updated.
    • Admission to practice requirements (as if you’d want to): “to be eligible for admission to the Bar of the CMCR, an attorney must be a member in good standing of the Bar of the highest court of a state, territory, commonwealth, or possession of the United States, the District of Columbia, or of the Bar of a Federal Court.” Proof of good standing is required. Foreign attorneys may gain honorary membership.
  • Approval and Promulgation of Rules of Practice
  • Multiple recent documents from the Khadr Commissions case that AO has reported on, inter alia, HERE (Khadr and Hamdan dismissal), HERE (reconsideration denial), and HERE (Khadr appeal), including: Continue reading

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POTUS applies Geneva Conventions to the CIA

The President yesterday signed an Executive Order, entitled “Interpretation of the Geneva Conventions Common Article 3 as Applied to a Program of Detention and Interrogation Operated by the Central Intelligence Agency.”

The White House Press release is HERE, and the full text of the Executive Order follows below my brief analysis.

Note that the Military Commissions Act requires this Executive Order. MCA, Sec 6(a)(3) : states that “As provided by the Constitution and by this section, the President has the authority for the United States to interpret the meaning and application of the Geneva Conventions and to promulgate higher standards and administrative regulations for violations of treaty obligations which are not grave breaches of the Geneva Conventions.” The section continues to state that POTUS “shall issue [such] interpretations . . . by Executive Order,” and that such EO “shall be authoritative (execpt as to grave breaches of common Article 3) as a matter of United States law, in the same manner as other administrative regulations.”

As you read, note a few additional things. First off, the EO requires that CIA detainees “receive the basic necessities of life.” However, the Washington Post reports that a “senior administration official” states that “sleep” does not fall within the “basic necessities” category.

Second, the President reaffirms his 7 February 2002 determination that al Qaeda, Taliban, “and associated forces” are “unlawful enemy combatants who are not entitled to the Continue reading

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NMCCA: US v. Gladden (Jul 07)

U.S. v. Gladden, NMCCA 200600905 (N.M.Ct.Crim.App. 2007). SPCM for use of cocaine, Art. 112a. Appellant challenged the probable-cause determination underlying her command-directed urinalysis. Appellant was to begin a period of leave, but before leaving work she was informed that she had been selected to participate in the random urinalysis test. She failed to take the test, though she was repeatedly informed of the urinalysis and affirmed that she would take the test. CO learned of this, and after halting the random urinalysis testing asked Appellant to consent to a urinalysis. Appellant refused, and CO issued a probable-cause authorization to take Appellant’s urine sample.

Holding: Probable cause existed for the CO to issue search authorization. That Appellant apparently deliberately avoided the random urinalysis, and then refused a consent search, supplied the CO with a “substantial basis” to believe Appellant had used a controlled substance and evidence of this use would be in her system. U.S. v. Bethea, 61 M.J. 184 (C.A.A.F. 2005).

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AFCCA: US v. Burton (Jul 07)

16 July 2007, Air Force Court of Criminal Appeals released U.S. v. Burton, ACM 36296, (A.F.Ct.Crim.App. 16 Jul 2007). GCM, officer and enlisted members, contested, Arts 120, 125, and 134. Sentence: 8 years, E-1, DD. Convening Authority disapproved findings of guilty to indecent acts and consensual sodomy, and approved adjudged sentence, but reduced confinement to 7 years. Appellant claimed, inter alia, that military judge erred by denying defense motion to dismiss the rape charge because it was not properly investigated under Article 32, UCMJ, 10 USC sec 832. After initial Art 32 and subsequent referral to GCM, additional evidence of possible crimes was uncovered. The original charge was withdrawn and dismissed, and an identical charge (except for Appellant’s listed unit), as well as three new specs, were preferred.

The Court held: US v. Britton, 26 MJ 24, 26 (C.M.A. 1988) requires that where charges are withdrawn and dismissed, reinstituting the charges “requires the command to start Continue reading

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NMCCA: US v. Barr (Jul 07)

17 July 2007, Navy-Marine Corps Court of Criminal Appeals released U.S. v. Barr, No. 200602492 (N.M.Ct.Crim.App. 17 Jul 2007). SPCM, military judge alone, guilty pleas, Arts 112a and 134. Sentence: 6 months, E-1, BCD. Convening Authority’s Action (“CAX”) failed to note RCM 305(k) judicially ordered confinement credit. The Court held: it was bound by precedent, including U.S. v. Stanford, 37 M.J. 388, 391 (C.M.A. 1993), and “reluctantly return[ed] the record to the Judge Advocate General for remand to the CA for a corrected CA’s action, as have our sister courts.” The judges sent a clear message that a rule change to R.C.M. 1107(g) is in order: the court found that the case involved no prejudice. R.C.M. 1107(g) grants the service CCA’s the discretion to direct the CA to withdraw an incomplete CAX and substitute a corrected one. The court offered advice to the President for the next verion of the Rules for Courts-Martial: “That same discretion should include the appellate authority to direct the judicially ordered confinement credit when there has been no prejudice to the appellant.”

HL

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NMCCA: US v. Wright (Jul 07)

17 July 2007, Navy-Marine Corps Court of Criminal Appeals released U.S. v. Wright, No. 200602491 (N.M.Ct.Crim.App. 17 Jul 2007). SPCM, military judge alone, guilty pleas, Arts 86, 87, 107, 121, 134. Sentence: 180 days, E-1, BCD. CCA rebuffs challenge to providency of pleas to communicating threats where the Appellant (1) told a doctor he would be treated badly by his unit once he arrived in Iraq with his unit, (2) told the doctor that “if provoked in any way [he would] just snap and lose it and just lose control” of himself, and (3) told the doctor he “would be provoked once reunited with his command and believed that he would then injure his commanding officer, sergeant major, gunnery and staff sergeant by ‘beating them to a pulp with his E-tool shovel.'” The Court set aside the 134 plea, holding: “threatening statements (1) uttered in the context of an exchange of information with medical personnel, (2) which expresses the declarant’s current mental state of distress, and (3) which are uttered for the purpose of obtaining medical evaluation and treatment are not wrongful and do not constitute communicating a threat under Article 134, UCMJ.”

HL

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