Tuesday, February 15, 2011

A Judge Does the Right Thing

I was just reading that a judge in Virginia refused to follow a ruling by his state Supreme Court because that ruling would result in a violation of a criminal defendant's rights as established by the United States Supreme Court.  At issue is the obligation of an attorney to advise his criminal clients of the immigration consequences of a conviction or guilty plea.  That obligation was imposed by the United States Supreme Court in Padilla v. Kentucky.

The Virginia Supreme Court ruled that certain procedures are not available to raise the issue in state court post conviction relief proceedings.  Judge Dean Worcester disagreed and permitted a criminal defendant to raise the issue.  His rationale was that not permitting the issue to be raised is the equivalent of denying the right in violation of the holding in Padilla.  His opinion can be found here.

Without taking a position on whether he is right or wrong, it is nice to see a judge who understands that he has the same responsibilities as appellate court judges when it comes to following the constitution.  I am reminded of a hearing on a motion to suppress that I had in a case in east Tennessee a year or so ago.  The issue there was the recording of a criminal defendant in her home by a paid informant.  Many states have held that these recordings are inadmissible.  Tennessee has never ruled.

After completing my argument, the judge stated that he thought that it had merit but that he was going to deny the motion because, he said, these matters are best addressed by the court of appeals not trial judges.  I pointed out to him that he took the same oath to uphold the constitution as did the appellate judges but he was not swayed.

The rule of stare decisis, following the court decisions that have come before, is necessary in our legal system.  It is what brings stability to our rule of law. But blindly following precedent is just as damaging.  A judge must be free to uphold his oath to the constitution, no matter what level of the system he represents.  It is nice to see that at least one trial court judge agrees.


Friday, February 4, 2011

Observations about a Divorce Case at the Court of Appeals

I recently attended a Court of Appeals session to observe my husband, also an attorney, make his first Court of Appeals oral argument.  While we were anxiously waiting for his case to be called, we had the opportunity to watch other cases.

One case in particular was very interesting to me.  The facts as follows:  couple dates for 1 year; wife has debilitating stroke; couple continues dating for 4 more years; couple gets married; couple stays married for 20 years; couple gets divorced.

The marital estate at issue in this case was rather large and valued at over $7,000,000.  The husband made the argument at trial that because the wife did not contribute to the marital estate (because she had a stroke that he clearly knew about before they got married) by working or raising children (they were married in their mid-40s), that she should get less of the estate.  The trial court awarded the husband 60% of the estate, plus a large amount of stock options and the wife 40% of the estate.

The husband appealed the trial court.  His attorney stated that the husband felt like he was entitled to 70% and the wife should have only gotten 30%.  In my opinion, the husband won at the trial court and this appeal was just adding insult to injury.

During the wife’s attorney’s defense of the case, she stated that she felt like she “got a whooping” at the trial court and was embarrassed to have to defend this case in front of the Court of Appeals.  I was very impressed by her conversational style and preparedness.
Another fact that made this case memorable is that the wife’s attorney stated that the husband’s attorney was paid $130,000 in fees out of the marital estate before the division, and her attorney’s fees had not been paid out of the marital estate.  For a $130,000 fee, I expected to see some spectacular rhetoric and wit, or, at the very least, extreme preparedness.  Instead, I witnessed an attorney who was not even able to recall the value that his client had been awarded at the trial court level.
The Court of Appeals does not rule from the bench, and the parties in this case may not get a ruling for a few months.  I am interested to see how the case turns out.

Rachel Rieger

Wednesday, February 2, 2011

Always Learning

I was in court this morning to do a plea in a theft case.  While waiting to get the paperwork in order, I was able to watch the jury selection in a DUI case.  It turned out to be one of the best voir dires that I have ever heard.

One of the things that made it interesting was the defense attorney's education of the potential jury as to the burden of proof requirements in a criminal case.  As most people know, the state has the burden of proving facts to establish all the elements of a crime, while the defendant has no burden to prove anything.

The defense attorney asked the standard questions:

If my side doesn't even put on a case, would you find him guilty just because of that?  No hands popped up from the jury.

Do you promise to acquit him if you don't feel that the state has proven all the elements of the crime?  All hands held up.

What if the state doesn't put on any case at all, could you still convict him?  At this point, the jurors all raised their hands indicating that they could indeed convict.  That's when the defense attorney told him that they had been tricked and that this goes to the heart of burden of proof.  He then educated them by telling them that the state was required to put on a case, else they were not permitted to return a guilty verdict.

It was really much more effective watching it in the courtroom than it comes across in writing.

Here is the real point - I hadn't been up in a courtroom to watch a case in a very long time.  I used to go watch frequently, but as business picked up I simply didn't have the time to keep that up.  I think that's a mistake.  I think that you learn far more from immersing yourself in the courtroom on a regular basis than you do by taking continuing legal education courses or even by trying cases (you are too wrapped up in your case to really learn - unless you make a mistake, that is.  You always learn from mistakes).

I am seriously considering making it a requirement of this firm that every lawyer attend at least one jury trial per month.  Including me.  I think that would be a great way for each of us to develop, and keep, the skills we need in order to try cases.