There are few blogs that are as consistently as interesting as How Appealing.  The blog recently reported “Wash. convictions reversed over PowerPoint show”: The Associated Press has this report on a ruling that the Supreme Court of Washington State issued recently. According to The AP report, “During closing arguments, the deputy Pierce County prosecutor presented a slide show with Glasmann’s mug shot and the word ‘guilty’ superimposed in red letters three times across his face. The justices said unanimously Thursday that was improper, because there was no such image admitted as evidence.”

The Supreme Court’s  5-to-4 decision consists of a lead opinion, an opinion concurring in the judgment, and a dissenting opinion.

One of the symptoms of an approaching nervous breakdown is the belief that one’s work is terribly important.

—Bertrand Russell

If heaven has a special place for fathers and daughters, Sen. George McGovern is now with his daughter, Terry. Hopefully an eternity of happiness and joy lie ahead. McGovern will, for the most part, be remembered in history as a liberal warrior for the hungry. He had a successful career in politics. Although he was a staunch Democrat, he knew how bipartisanship and compromise were essential, as illustrated by his work with Republican Sen. Bob Dole on the issue of food stamps. He had a Ph.D. in history, taught in many colleges and was a prolific author. And of course, McGovern was a dismal failure in his effort to become president. All of that is well worth noting, but perhaps what all of us can best learn from Sen. George McGovern is the need to better understand mental illness and chemical dependency. 

In Tim Russert’s book, “Wisdom of Our Fathers,” there is mention of a book that was so sad that Russert said he had to put it down repeatedly.  This book, written by McGovern, was entitled, “Terry: My Daughter’s Life-And-Death Struggle With Alcoholism.” Whether you admired, despised or are indifferent to McGovern’s political views, perhaps his passing can inspire us to contemplate how society can better help those disabled by mental illness and chemical dependency. Perhaps his experience can lend some comfort to parents and families whose loved ones are afflicted with chemical dependency and mental illness.  For the rest of the article: http://www.minnpost.com/community-voices/2012/10/mcgovern-and-his-daughter-terry-what-we-can-learn

 Andrea D. Lyon (DePaul University – College of Law) has posted The Promise of Effective Assistance of Counsel: Good Enough Isn’t Good Enough (The Champion, June 2012) on SSRN. Here is the abstract:

As a part of the National Association of Crminal Defense Lawyers perspectives on Gideon v. Wainwright’s 50th anniversary, this article examines the promise of effective assistance of defense counsel, and how low that standard is and its deleterious effects on justice.

Senior District Court Judge Tanow in US v. Beals, No. 10-5264 (6th Cir. Oct. 16, 2012) (available here),  has an thought provoking  concurring opinion discussing plea agreements.

In this case, Miller’s plea agreement contained a waiver of appeal unless her eventual sentence was “above the sentencing guideline range as determined by the district court.” The Court finds, and I agree, that based on language of her waiver, Miller’s eventual sentence was not above the guidelines range as determined by the district court — though the district court’s determination of the guidelines range was contrary to the stipulated facts in her plea agreement.

The Court holds that Miller “could have bargained” for a narrower waiver, for instance by including language that she reserved the right to appeal whether “the Court incorrectly determined the guidelines range.” The Court thus implies that Miller consciously chose to forego a more narrow waiver for some unstated advantage, or that she was simply deficient in her bargaining and unnecessarily exposed herself to the possibility of a higher sentence.

My point is not to question the Court’s holding that Miller’s waiver was knowing and voluntary, but rather to note that requiring sophisticated bargaining by criminal defendants to retain the right to appeal a sentence likely contributes to uncertainty regarding whether a plea was knowing or voluntary.  It does not seem to me that justice is served by permitting plea agreements that (bargaining aside) result in defendants agreeing to a plea that they did not intend or properly understand.  Moreover, defendants may have less incentive to accept guilty pleas if they are concerned that they are actually at risk of a higher sentence than they thought had been agreed to in their plea agreement.

I would recommend that counsel for both defendants and the government strive to create plea agreements that state in plain terms the maximum possible sentence a defendant might receive.  Defendants who plead guilty based on an agreement that provides a clear statement of the maximum likely sentence are adequately forewarned of the possible consequences of their guilty plea, even in a “worst case” scenario where, as here, a court construes the evidence and sentencing guidelines differently than a defendant expected when agreeing to their plea.

If discussion of the maximum possible sentence is required in plea agreements the result is to eliminate ambiguity in the guilty-plea process, surely an important goal given the interests at stake….

The plea agreement in this case does not mention the actual maximum possible sentence that Miller might have (and did) receive.  While a stipulation in a plea agreement cannot bind a sentencing court to a particular sentence, plea agreements should state the maximum possible sentence that a defendant might receive and, if subjected to a sentence above that maximum, waivers of appeal should not be enforced.

The Kansas Supreme Court has upheld the state law that caps the damages awarded in medical malpractice cases.  The long-awaited ruling found that the $250,000 cap on non-economic damages — damages awarded for pain and suffering — did not violate the Kansas Constitution.
The 5-2 ruling was a victory for the state’s medical and business community and a loss for trial lawyers and organizations including AARP and the AFL-CIO. The justices did, however, suggest state lawmakers raise the cap in recognition of decades of inflation

Read more here: http://www.kansascity.com/2012/10/05/3849007/kansas-high-court-upholds-malpractice.html#storylink=cpy. The Kansas Supreme Court’s decision is directly contrary to the Missouri Supreme Court decision on pain & suffering damage caps. The Missouri Supreme Court found  a $350,000 limit on jury awards for “pain and suffering” in medical malpractice cases unconstitutional. The cap on malpractice awards was established by a 2005 state law that was   part of a “tort reform” push.

In a 4-3 decision, the Missouri Supreme Court  said the cap “infringes on the jury’s constitutionally protected purpose of determining the amount of damages sustained by an injured party”

The Center for American Progress has an interesting new report on campaign contributions and judicial elections. The report states, “As this year’s election approaches, political attack ads are flooding the airwaves, fueled by unprecedented sums of money from corporations and wealthy individuals funding “independent” political ads. Much of the money is funneled through nonprofit organi­zations that do not disclose their donors.”

In August 2012 the Center for American Progress issued a report on how campaign donations from big business have come to dominate judicial elections, resulting in courts that favor corporations over individual citizens. This new report concludes with recom­mendations for strong rules that require reporting of all ads that mention candidates, including information on those who gave money to independent spenders. States should also respond to Citizens United by requiring corporations engaged in political spending to disclose that information to their shareholders.

Although disclosure laws usually apply to elections for all branches of government, these recommendations were made specifically with judicial campaigns in mind. Judicial elec­tions involve unique interests that make the need for transparency in campaign finance even greater than in other elections. The full report can be found at: http://www.americanprogress.org/issues/civil-liberties/report/2012/10/16/41451/policy-solutions-to-the-corporate-capture-of-state-supreme-courts/

It seems so simple. You are a judge, not a mathematician, and yet there is a lot of truth in Justice Stephen Breyer’s observation, “You explain to people first, why is it that I think what I think? You’re not trying to prove a point. Law is not mathematics. If I am a mathematician, I am trying to prove why ‘A’ follows from ‘B.’ But this is not the nature of this discipline. The best I can do is explain to a reader what my reasons are for adopting this particular conclusion.”

In 2006–2007, Bryan Garner interviewed eight of the nine Justices about legal writing and advocacy. These are the complete interviews:  http://www.lawprose.org/interviews/supreme-court.php?vid=breyer_part_1&vidtitle=Associate_Justice_Stephen_Breyer_Part_1

Because the files are large, the videos may take a few moments to start

LawProse is making these interviews available as a public service. Anyone may freely use these videos for educational purposes, with appropriate attribution to Bryan Garner or LawProse. 

No matter what court we sit on, becoming a better writer surely is something all of us can do.