Improper Prosecution PowerPoints Lead to Reversal of Washington and Nevada Cases

Appellate counsel are well advised to fight for video disks and prosecutor power points in trials. The States of Washington and Nevada recently reversed prosecutor’s for using PowerPoints closing arguments with images of the Defendant and the word “Guilty” superimposed. The Courts say that the prosecutor cannot imply personal opinions of guilt and that the PowerPoints were far more powerful than mere words. Here is a link to the Washington case and here is a link to the Nevada case. The slide is a mockup of the particular slide described as improper by both the Nevada and Washington appellate courts. MOCKUP.001The slide is a mockup of the particular slide described as improper by both the Nevada and Washington appellate courts.

Michigan Needs to Recognize the Title “Appellate Specialist”

Michigan needs to follow the lead of states like Florida and recognize the title “appellate specialist.” Until they do, individuals who devote their career to appeals are going to need to turn to third-party organizations to obtain objective proof of their skills. When this happens, the attorney is effectively buying a law suit or a disciplinary proceeding over what is effectively commercial free speech.
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COA Sets Forth the Due Process Defendant Must Be Given When County Seeks Reimbursement for Court Appointed Counsel

Overwhelmingly, criminal defendants are represented by court appointed counsel. Many counties have sought reimbursement for such fees. Three years ago, the Michigan Legislature codified this practice with MCL 769.1k which provided that after conviction, the Court may make the Defendant pay for any costs or the expenses associated with the defendant’s legal representation.

In
People v Trapp, Court of Appeals No. 282662, the Court of Appeals answered the question about what a court is supposed to do when the Defendant claims that he does not have the means to pay this fee.

In Trapp, on request the Court ruled that the Court must look at the Defendant’s ability to pay. Unfortunately, the Court ruled in the last paragraph that a hearing was not required and the Court could rely on an updated presentence report.

Trapp is disturbing because most countries do not disclose the presentence report until moments before sentencing. Trapp is yet another reason why Michigan should adopt the federal practice of providing the reports to counsel ten days before sentencing and allowing counsel the opportunity to file written objections to the reports.

The other item which went undiscussed in Trapp is the fact that the parties were talking about $300. It will probably costs Berrien County thousands to collect this paltry sum.

Virginia Supreme Court Finds Constitutional Right to Spam

We all hate those pesky e-mails we get hawking copy watches, Viagra, and get rich quick schemes. They often come from forged e-mail addresses, sent from hijacked machines, containing forged i.p. addresses. After deleting two hundred such pieces of e-mail in a single day, even this ACLU liberal type wants to say that there is no First Amendment right to spam, but think about it. Our founding fathers often wrote under aliases, leafleted to unwanting recipients, and had a message that half the country (the loyalists) found deeply offensive, and even blasphemous. Are spammers really different from the Hare Krishna that ten years ago we worked so hard to avoid on a city street? Yesterday, the Virginia Supreme Court said “no” reversing its own six month old ruling to the contrary. Jaynes v Commonwealth, Virginia Supreme Court No. 06-2388.

Jeremey Jaynes was convicted in 2004 of sending over 50,000e-mails through America Online servers in Loudoun, Virginia. The e-mails were sent from Mr. Jayne’s computers in his home in Raleigh North Carolina. According to the Supreme Court’s ruling, these emails “intentionally falsified the header information and sender domain names before transmitting the e-mails to the recipients.” The decision also noted that the subscriber lists that Mr. Jaynes was using had been stolen from AOL by a corrupt employee. Mr. Jaynes was the first person tried under a 2003 Virginia anti-spam law. A Loudoun Circuit Court judge sentenced Mr. Jaynes to nine years in prison.

Justice G. Steven Agee (now on the U.S. Court of Appeals for the 4th Circuit) wrote the unanimous opinion for the court. "The right to engage in anonymous speech, particularly anonymous political or religious speech, is 'an aspect of the freedom of speech protected by the First Amendment,' "By prohibiting false routing information in the dissemination of e-mails," the court ruled, Virginia's anti-spam law "infringes on that protected right."

Justice Agee noted that "were the 'Federalist Papers' just being published today via e-mail, that transmission by 'Publius' would violate the [Virginia] statute." Publius was the pen name for James Madison, Alexander Hamilton and John Jay.

The court determined that the law does not limit its restrictions on spam to commercial or fraudulent e-mail or to such unprotected speech as obscenity or defamation. Many other states and the federal government drafted anti-spam laws after Virginia, but often specifically restricted the regulations to commercial e-mails, the court found. The ruling affects only the Virginia statute.

In addition to the First Amendment ruling, the Virginia Supreme Court’s ruling has several interesting discussions which make the decision a must read for any criminal practitioner. The first question is jurisdiction in internet crime cases. Mr. Jaynes resided in North Carolina and most of the e-mails he sent were destined for third states or foreign countries, but the use of AOL’s servers in Virginia was sufficient to confer appelllate jurisdiction. Also interesting is the way that the Court distinguished Virginia v. Hicks, 539 U.S. 113, 118-19 (2003). The Commonwealth had lifted a passage that supported the narrow standing rule that they were arguing (that Mr. Haynes could only challenge the law as applied). The Court looked at the Commonwealth’s brief to the U.S. Supreme Court and its oral arguments in the Supreme Court to find that this passage was being read out of context. The Court noted the concessions that Virginia had made and refused to read the Court’s opinion in the manner that Virginia was now arguing

The Federal CAN Spam Act is restricted to commercial speeches and could be distinguished on those grounds. The Virginia Attorney General has vowed to appeal the ruling to the US Supreme Court.

COA Defines SORA's Catch-All Registration Requirements


Michigan’s Sex Offender Registration Act (“SORA”) requires an individual “who is convicted of a listed offense after October 1, 1995, to register as a sex offender.” MCL 28.723(1)(a). The definition of “listed offense” in MCL 28.722(e) includes a catchall provision, MCL 28.722(e)(xi), which states that “[a]ny other violation of a law of this state or a local ordinance of a municipality that by its nature constitutes a sexual offense against an individual who is less than 18 years of age,” constitutes a listed
offense.

Last week, in People v Atlhoff, the Michigan Court of Appeals had the opportunity to clarify what the registration obligations were under this provision. Mr. Althoff had been convicted of downloading child pornography from the internet. The question was whether this act constituted a “sexual offense against an individual who is less than 18 years of age” under the Act.

Previously, in People v Meyers, 250 Mich App 637, 649 NW2d 123 (2002), the Court stated that in catch-all cases, a Court was required to look at the specific facts of a given case to determine whether the Defendant’s conduct fell within the catch-all. In December of 2006, the Michigan Supreme Court remanded Althoff to the Court of Appeals as on leave granted. In its remand order, the Michigan Supreme Court stated in dicta that the language in Meyers was dicta. People v Althoff, 477 Mich 961 (2006). In People v Golba, the Court of Appeals stated that this language was holding. In Altholff, the Court of Appeals found that Golba was wrongly decided because it ignored the remand order in Althoff. In other words, the Court of Appeals created a “wrongly decided” exception to Michigan’s “first out rule.” Because the prior panel failed to detect or credit a suggestion that Meyers was dicta, the decision was invalid. Even though Michigan’s court rules require to follow a post-1990 published Court of Appeals decision, Atlhoff chose not to. In the process, the Court has inadvertently created an exception which will swallow the rule. The authors of this decision will regret their words.

Lawyering is Not About Gamesmanship

The focus of this blog is on criminal appeals, but occasionally there is a ruling in the civil sphere which directly impacts on criminal law. Judge O’Connell’s recent opinion in Shaw v Spence Bros. is one of those rulings. The majority reversed a trial court default when the insurance company representing a contract did not timely file an answer to the complaint. Judge O’Connell wrote a separate theory criticizing the attorneys who apply game theory to the practice of law.

The key opinion in the ruling notes:

At the outset, I stress that this opinion is not intended as an analysis or criticism of either the trial court or the majority’s methodology in resolving this case, but as an opportunity to address and reduce the gamesmanship that creates hostile attitudes and friction among litigants, lawyers, and the bench. Some attorneys maintain that gamesmanship is a fundamental and ingrained aspect of the legal process, and that attempts to compete with or outdo their opponents are not only appropriate but also required for zealous advocacy. I contend, however, that this gamesmanship attitude, which is all too prevalent in today’s law practice, is more destructive than helpful, because it brings disrespect upon the law, the litigants, and our shared concept of justice. Although I have no illusions that the game theory of law practice will be eliminated, I remain hopeful that this gamesmanship can be reduced through the application of the totality of the circumstances test to the process of administering justice. Indeed, one purpose of this opinion is to ignite discussion on the topic.

Expanding the Record on the Ex Parte

Purists like to argue that an appeal consists only of the documents contained in the trial court file before the Notice or Claim of Appeal is filed. While this is certainly the general rule, there are a number of pragmatic reasons why appellate courts do not rigorously adhere the “flash freeze” theory of issue preservation. This week’s SCOTUS blog has an interesting discussion about filing non-record materials for the first time in the United States Supreme Court. It appears to happen fairly frequently.