How Appealing

Tuesday, June 14, 2005

“Diaz trial delayed; motorist held in death of lawyer’s brother”: The Associated Press reports here that “The judicial bribery trial of Mississippi Supreme Court Justice Oliver Diaz Jr. has been delayed until next week because of a death in the family of Diaz’s attorney.”

Yesterday, The Biloxi Sun Herald reported that “Tidbits aplenty in trial’s first week.”

And today that newspaper contains an editorial entitled “What is hidden in sealed files in judicial bribery case?

Posted at 8:45 PM by Howard Bashman

“High court sides with diabetic; Low blood sugar has to be considered in attempt to kill wife”: This article appears today in The Rocky Mountain News.

And The Denver Post today contains an article headlined “Low blood sugar upheld as defense for attacker; The Colorado Supreme Court rules in the case of a diabetic; If attorneys can show he was involuntarily intoxicated, he will be entitled to a new trial.”

Yesterday’s ruling of the Supreme Court of Colorado can be accessed here.

Posted at 8:00 PM by Howard Bashman

“Supreme Court upholds Ohio policy on violent inmates; Justices slam racial bias in juries”: Michael McGough has this article today in The Pittsburgh Post-Gazette.

Posted at 7:50 PM by Howard Bashman

“Justices find race bias in jury pool; Death penalty verdict in Texas overturned”: Jan Crawford Greenburg has this article today in The Chicago Tribune.

In The Boston Globe, Charlie Savage reports that “Death sentence conviction rejected; Court cites racial bias in selection of jury.”

In The San Francisco Chronicle, Bob Egelko reports that “Top court gets tough on bias in jury picking; 1986 ban on using race to exclude jurors reaffirmed.”

In The Baltimore Sun, Gail Gibson reports that “Court warns about bias in picking juries; Justices find prejudice in selection of jurors for Texas murder case; Second review by high court; 2 black defendants said panels limited to whites.”

The Sacramento Bee reports that “Exclusion of potential jurors limited; High court’s ruling curbs dismissals based on race in state.”

The Dallas Morning News reports that “Miller-El decision disappoints parents.”

The Fort Worth Star-Telegram reports that “Death Row conviction reversed.”

The Houston Chronicle contains articles headlined “High court again slaps down Texas justice; Dallas murder conviction is set aside; justices say blacks left off Miller-El’s jury” and “Attorney wins Supreme victory; Justices order a new trial for activist defender’s death row client.”

The San Antonio Express-News reports that “Texan’s murder verdict is tossed.”

And The Daily Texan reports that “Texas death row case overturned.”

In commentary, The New York Times contains an editorial entitled “Prosecutorial Racial Bias in Texas.”

The Washington Post contains an editorial entitled “Strike Against Bias.”

The Dallas Morning News contains an editorial entitled “Court protects right to trial by jury of peers.”

And The Houston Chronicle contains an editorial entitled “Short-circuited — again; High court, in understandable disbelief, thwacks recalcitrant appellate bench on how the death penalty has been handled in Texas.”

Posted at 7:38 PM by Howard Bashman

“What Was Scalia Thinking? Inside the tortured mind of a conservative Supreme Court justice.” Mark Moller has this essay online today at Reason.

Posted at 6:50 PM by Howard Bashman

“Supreme Court stays away from cave bugs”: The San Antonio Express-News today contains an article that begins, “The U.S. Supreme Court has refused to hear a challenge to the Endangered Species Act involving Central Texas cave bugs, squashing the hopes of property rights advocates but garnering cheers from environmentalists nationwide.”

And The Austin American-Statesman contains an article headlined “Cave bugs, you’re still protected; Supreme Court declines to look at Travis interstate commerce case.”

Posted at 6:40 PM by Howard Bashman

“In A Postscript, Ross To Doctor: ‘Checkmate.'” Today in The Hartford Courant, Lynne Tuohy has an article that begins, “Michael Ross had been dead several days when a psychiatrist who testified against his execution received a brief note from the serial killer.”

Posted at 6:08 PM by Howard Bashman

“Holder Says Others Had Ax To Grind In Frame-Up”: The Tampa Tribune today contains an article that begins:

Former Chief Judge F. Dennis Alvarez is a target in a sweeping federal and state corruption investigation stretching from the Hillsborough County courthouse to the Sheriff’s Office, a sitting judge testified Monday.

The judge, Gregory P. Holder, spent eight months as an FBI informant in the corruption investigation, and is currently on trial for allegedly plagiarizing a research paper he wrote as an Air Force Reserve officer in 1997.

And in other coverage, The St. Petersburg Times reports today that “Judge names inquiry’s targets.”

Posted at 6:02 PM by Howard Bashman

“Blame flies in FAMU scandal; The suspended law school dean faults two former presidents for a controversial chair”: This article appears today in The St. Petersburg Times.

Posted at 6:00 PM by Howard Bashman

“Statistical Significance of the Chief Justice’s Potential Replacement”: Kevin Russell has this post at “The Supreme Court Nomination Blog.”

Of course, it’s easy to measure the impact a given Justice’s vote appears to have had in the past, but it’s impossible to measure the impact that vote would have in the future in cases and on issues we cannot even imagine now.

Moreover, it is perhaps misleading to view a Justice as a disembodied “vote” on a case. For example, Justice William J. Brennan, Jr. had only one vote, but his success at consensus-building perhaps made his vote more valuable than the vote of a Justice who lacks the same ability to persuade, or interest in trying to persuade, four other colleagues on the Court to a particular result.

Posted at 5:55 PM by Howard Bashman

“Fort Trumbull Residents Now Wait As The Legal Dust Settles; Supreme Court Ruling in NL Eminent Domain Case Is Due This Month”: The Day of New London, Connecticut contains this article today.

Posted at 4:54 PM by Howard Bashman

“Blood Simple: Killing a retarded inmate isn’t that hard — not if you have a cooperative psychiatrist.” This article appears in the June 9, 2005 issue of The Pitch of Kansas City, Missouri.

Posted at 4:50 PM by Howard Bashman

“Greetings, and some thoughts on Supreme Court advocacy”: Law Professor Trevor Morrison has this provocative post up at “PrawfsBlawg.”

I too have been thinking recently about the impact of the quality of appellate advocacy on the result obtained, and I almost made that the subject of my June 2005 monthly appellate column before opting for a much less sexy (but much easier to write) topic.

For starters, I think all agree that in a perfect world courts would decide legal issues depending on the merits of the issue, so that quality of advocacy wouldn’t matter. In the real world, however, that goal cannot be achieved, in part because a court’s view of the merits may depend heavily on the quality of advocacy.

My tentative view is that quality of advocacy matters much more when a case is pending before an appellate court where the quality of advocacy is uneven. Thus, generalizing greatly from that observation, my view is that quality of advocacy makes much more of a difference in the U.S. Courts of Appeals and state appellate courts than before the U.S. Supreme Court, the latter of which is fortunate to have many cases in which all the advocates are of very high quality. Where advocacy on both sides of a case is uniformly high, a court is free to rule on the merits without having quality of advocacy determine the outcome.

Moreover, before deciding a given question on the merits, the U.S. Supreme Court agrees to decide the question on the merits. Thus, for example, in Gonzales v. Raich, the Court agreed to decide the question “whether Congress’s Commerce Clause authority includes the power to prohibit the local cultivation and use of marijuana in compliance with California law.” I think it unlikely that the answer to that question depended on who of many highly qualified appellate advocates was arguing which position. Of course, the impact that a particular appellate advocate has had on a given appeal isn’t usually known until it is too late to do anything about it.

On a related point, I gather that appellate judges ordinarily view their rulings (unless otherwise indicated) as based on the merits of the legal arguments presented rather than based on the quality of appellate advocacy. And that is how legal issues should be decided by appellate courts whose rulings bind other courts.

Posted at 4:45 PM by Howard Bashman

At least The AP thought that yesterday’s ConLaw exam headache-Eleventh Amendment ruling from the Fourth Circuit was worthy of mention: The Associated Press reports that “Lawsuit Against Va. Law School Reinstated.”

Yesterday, I had a post titled “A law student’s migraine headache during a ConLaw exam gives rise to a major Eleventh Amendment ruling from the Fourth Circuit” about the decision, a ruling that I had expected (incorrectly, thus far) would receive quite a bit of attention across the blawgosphere.

Posted at 3:32 PM by Howard Bashman

“Court Urged to Overturn Ariz. Benefits Law”: David Kravets of The Associated Press provides a report that begins, “A federal appeals court was urged Monday to overturn a voter-approved Arizona law that denies welfare and other benefits to illegal immigrants.”

Thanks to the Ninth Circuit’s web site, you can download the oral argument audio (Windows Media format) in this interesting case by right-clicking on this link and saving the audio file to your computer.

Posted at 3:25 PM by Howard Bashman

“Napolitano picks longtime ally for state’s high court”: The Arizona Republic provides a news update that begins, “Gov. Janet Napolitano picked a longtime legal and political ally today for the Arizona Supreme Court, putting her stamp on the state’s highest court that may soon have the final say in such politically charged topics as gay marriage and publicly financed elections. The selection of Scott Bales, legal experts say, should give Arizona one of the most talented courts in the country with three former United States Supreme Court clerks.”

In retrospect, it’s surprising that more States haven’t figured out that to have one of the most talented state Supreme Court in the country, all that’s required is having three former U.S. Supreme Court clerks serving on the court.

Posted at 3:15 PM by Howard Bashman

“No jail time for SMU prof; Jury agrees she hit cyclist deliberately, gives her community service”: The Dallas Morning News provides an update that begins, “A Southern Methodist University law professor who was found guilty of aggravated assault will not have to go to jail. A Dallas jury today sentenced Jane Dolkart to five years of probation and two years of community service.”

Posted at 3:08 PM by Howard Bashman

“Senate Confirms Griffith for Appeals Court”: Jesse J. Holland of The Associated Press reports here that “The Senate on Tuesday confirmed one of its former lawyers, Thomas B. Griffith, to sit on the U.S. Appeals Court, the sixth judge it has elevated to the federal appellate court in the last month.”

And Thomas Ferraro of Reuters reports that “Senate confirms a sixth Bush judicial nominee.”

You can access today’s roll call tally of the U.S. Senate on the nomination of Thomas B. Griffith to serve on the U.S. Court of Appeals for the D.C. Circuit at this link. The vote was 73-24 in favor of confirmation.

The group People For the American Way isn’t happy with the result of today’s vote.

And in pre-vote news coverage, The Salt Lake Tribune today contains an article headlined “Yes vote on Griffith likely today; BYU counsel, appeals court nominee, praised in Senate.”

Posted at 3:00 PM by Howard Bashman

Hazy, hot, and humid: I’m back from my oral argument today in the Superior Court of Pennsylvania. Due to the disappearance of some cases ahead of mine on the oral argument list, my argument occurred before the court took its lunch break. And the argument itself appeared to go quite well.

The joys of oral argument are such that having to wear a suit and tie on a day when the high temperature is 95 degrees and the heat index is 105 gives no cause for complaint. Plus, now I’m prepared for my blog-related speaking appearance as the luncheon guest of the Houston Bar Association‘s Appellate Practice Section on Wednesday, July 27, 2005.

Posted at 2:54 PM by Howard Bashman

“Does Ohio’s ‘Grandparent Visitation Law’ Violate Parents’ Constitutional Right to Control of Child?” The Office of Public Information of the Supreme Court of Ohio provides this background about a case to be argued today before Ohio’s highest court.

That court streams live video coverage of oral arguments across the internet and also allows on-demand access over the internet to past oral arguments. You can access these video options via this link.

Some may recall that last month, I argued a similar case before the Supreme Court of Pennsylvania (see here, here, and here).

Posted at 6:20 AM by Howard Bashman

“SMU prof found guilty; Jury agrees she hit cyclist deliberately; sentencing is today”: The Dallas Morning News today contains an article that begins, “A Southern Methodist University law professor was convicted of aggravated assault Monday after jurors in her trial agreed that she used her car as a deadly weapon and intentionally struck a bicyclist riding at White Rock Lake last May.” The article goes on to note that “The tenured labor and employment law professor faces probation to 20 years in prison for the second-degree felony charge.” My most recent earlier coverage is here.

Posted at 6:15 AM by Howard Bashman