How Appealing

Friday, December 30, 2005

“Hinckley Can Leave D.C. Area for First Time; Judge Allows Va. Visits For Reagan Assailant”: This article will appear Saturday in The Washington Post.

Posted at 10:52 PM by Howard Bashman

“Facts Still in Dispute in Evolution Sticker Case; 11th Circuit seeks Georgia board’s timeline of disclaimer program”: provides this report.

Posted at 10:40 PM by Howard Bashman

“Dover and Out: The Dover ruling sends a message across the country.” Jerry Coyne has this essay (pass-through link) online at The New Republic.

Posted at 5:25 PM by Howard Bashman

Chief Justice John Jay bobblehead doll not included: You can preview The Green Bag Almanac and Reader 2006, which is scheduled to be available for purchase in just a few weeks, by clicking here.

Posted at 3:45 PM by Howard Bashman

“What Is ‘Cruel and Unusual’?” Benjamin Wittes has this article in the December 2005/January 2006 issue of Policy Review, a publication of the Hoover Institution.

The essay begins, “The Eighth Amendment is a jurisprudential train wreck. Its proudly humane language banning ‘cruel and unusual punishments’ may remain among the Bill of Rights’ most famous sound bites, but nobody today has the faintest clue what it means. The reason is as simple as it is sad: The Supreme Court’s case law has left the amendment without coherent meaning.”

Thanks to “Sentencing Law and Policy” for the pointer.

Posted at 2:20 PM by Howard Bashman

“Since a jury verdict must be unanimous, a jury united as to guilt but divided as to an affirmative defense (such as insanity) is necessarily a hung jury.” Circuit Judge Alex Kozinski, on behalf of a unanimous three-judge panel of the U.S. Court of Appeals for the Ninth Circuit, issued this interesting opinion today. In the opinion, the Ninth Circuit answers in the affirmative the question “whether a jury must unanimously reject an affirmative defense before it can find a defendant guilty.”

Posted at 2:00 PM by Howard Bashman

Supreme Court of Pennsylvania reaffirms harsh, bright-line appellate waiver ruling, even though that approach is contrary to the applicable Pennsylvania Rule of Appellate Procedure: My monthly appellate column from June 2004, titled “Waiving Goodbye To Your Best Issues On Appeal,” provided this background:

Pennsylvania Rule of Appellate Procedure 1925(b) provides that after a party files a notice of appeal, the trial court “may enter an order directing the appellant to file of record in the lower court and serve on the trial judge a concise statement of the matters complained of on the appeal…. A failure to comply with such direction may be considered by the appellate court as a waiver of all objections to the order, ruling or other matter complained of.”

Rule 1925(b) has a laudable purpose: the rule allows the trial court to determine whether a sufficient explanation of the reasons for the ruling or rulings to be challenged on appeal already exists in the record. If the trial court concludes that additional explanation is merited, the trial court can issue a new opinion in support of the ruling(s) being challenged on appeal.

As written, Rule 1925(b) is unobjectionable. Unfortunately, judicial decisions finding waiver under Rule 1925(b) apply that rule of procedure far more broadly than its plain language dictates. Perhaps the most significant departure from Rule 1925(b)’s plain language came in the Supreme Court of Pennsylvania’s ruling in Commonwealth v. Lord (1998). There, Pennsylvania’s highest court held, notwithstanding Rule 1925(b)’s plain language that an appellate court “may” find waiver if the rule’s requirements are not complied with, that a failure to comply with Rule 1925(b) mandates a finding of waiver.

Yesterday, the Supreme Court of Pennsylvania issued two rulings that reaffirmed, by identical votes of 6-1, the court’s 1998 decision in Lord. Both of yesterday’s rulings are available online (first majority opinion; first dissenting opinion; second majority opinion; second dissenting opinion).

Posted at 11:15 AM by Howard Bashman

“Court upholds GM on religion; No bias in refusal of Christian group”: The Chicago Tribune today contains an article that begins, “A born-again Christian who sued General Motors Corp. when the automaker denied his request to form a company-sponsored Christian group lost his appeal Thursday in a lawsuit claiming religious discrimination.” And The Associated Press reports that “Court Rules GM Program Not Discriminatory.”

My earlier coverage of yesterday’s ruling of the U.S. Court of Appeals for the Seventh Circuit can be accessed here.

Posted at 10:33 AM by Howard Bashman

“In 2005, the California Supreme Court issued decisions in 26 death penalty appeals, affirming all 26 death sentences.” So begins this post today at “Criminal Appeal.”

Posted at 10:24 AM by Howard Bashman

“Fort Trumbull: City Still Unsure Where Gov. Rell Stands On Plan.” The Day of New London, Connecticut today contains an article that begins, “City officials continue to grapple with what some see as mixed signals from the administration of Gov. M. Jodi Rell about her support for the redevelopment of the Fort Trumbull neighborhood.”

Posted at 10:00 AM by Howard Bashman

“Democrats Try To Block Kavanaugh Bid”: The New York Sun today contains an article that begins, “With so much attention focused on Supreme Court nominee Samuel Alito, President Bush’s lower-court nominees have drawn relatively little notice in recent months. But a quiet maneuver last week by Senate Democrats aimed at blocking one of the president’s closest advisers from the federal bench has set the stage for a potentially ferocious battle early next year.”

Posted at 7:18 AM by Howard Bashman