It’s been too long since I’ve had an opportunity to sit down and think and write. The thinking is actually my favorite part of having a blog, as it gives me the opportunity to reflect on whatever is at the top of my list in my work life. (And let’s be honest, my work life is my basically my life.)
So what happened in April 2016? Going in reverse chronological order:
I attended a two-day capital defense seminar in Memphis, which is required (among other qualifications) if an attorney wants to sit as first or second chair in a death penalty case. Tamara Brady was the first speaker, and she discussed jury selection in the James Holmes’ trial (Denver movie shooter). Jurors on a death penalty trial must be willing to impose a death penalty (which eliminates all your die-hard pacifists), but not foaming at the mouth with enthuasism. In that case, jury selection took TWELVE (12!) WEEKS. That’s the boring stuff they don’t report in the media, and the thought of going through 9,000 jury questionnaires and individual voir dire almost made me drive back to Nashville just as soon as I’d arrived in Memphis. Death penalty work is a grind, and the people that do it are some of the most selfless people you’ll meet. My mantra in every high school math class I ever took was, “Why am I taking __________, I already know I’m going to be an attorney, this is so pointless.” Unfortunately, I have one of those personalities where, when I think something is totally pointless, I get all sassy and annoyed. That pretty much sums up my feelings on the death penalty. I don’t have to even think about the morality aspect – it’s just such a tremendous waste of money, and I am extremely skeptical about its ability to bring “closure.”
A highlight for my April was the dismissal of multiple A and B felony drug charges for a client. One of my clients, a non-U.S. citizen, “P” had his charges dismissed by the State after spending about 18 months in custody. P was arrested after fraternizing with a known heroin supplier, and when he was arrested, he had 45 grams of heroin in his pockets. Then he made admissions. I was appointed to the case about 7 months ago, and filed a motion to suppress based on an illegal seizure and search. I cited the classics, State v. Otey and Ybarra v. Illinois, arguing that P was illegally arrested. It was one of those motions that takes you much longer to write than it should, because you believe that you’ve got the facts and case law on your side, and you desperately want the judge to agree. Luckily, he did.
P will still go through immigration proceedings in Louisiana, but he won’t have a conviction on his record like he easily would have. The DA on the case was reasonable and easy to work with. P wasn’t a lifelong criminal and had never really been in trouble before. I think he understands that he could have gone to prison and this once-in-a-lifetime type of luck will never happen again – at least I hope he's never in a position to find out.
I plan to provide case law updates soon. Okay, fresh off my CLE hours, I've got TWO TAKEAWAYS from this post - and these, I think are really important:
1. Federalize all of your state law objections. If you are objecting based on a hearsay objection, and it would be applicable, also object based on the Confrontation Clause. If you can insert a federal basis for objection, you are really strengthening your client's appeals all the way down the line.
2. Read Wearry v. Cain. This case stood out to me during the case law review at the DP seminar last week, and if you've got a case involving a snitching co-defendant (who doesn't?), make sure to read this one from front to back. http://www.supremecourt.gov/opinions/15pdf/14-10008_k537.pdf At the trial level, it may give you some ideas of specific things to ask for.
Wearry v. Cain, released on March 6, strengthened Brady, and provided some really great language when we argue Brady issues (softening the requirement that Brady evidence “would” have made a difference to “could” have made a difference). Wearry looked at whether the Brady evidence would have “any reasonable likelihood that it could have affected the jury during deliberations.” That’s some nice language – definitely check it out.
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