tcdla - Voice For The Defense Online

More documents

Recommendations

Info

... AND, THE JUDGE CONTINUED, "DON'T CAU< TO E ven the best jndge can make a n~ling that wiU incme the stress level of the chest defense lawyer to somewhere just off the chart. This wvas gloriously ill~~slstrated in a cae in dud1 Waldo Snerd represented Dunvood Douel: Doper and some of his hiends I~ictl conwrttd a schen~e to impon a thu~~s;u~d II~IIIII~S or SO of nwii n fun I I I I I ~ I . 1'111'~ wv~ultl 119we lreen nlore s~~ccl.ssful in their ventwe if llw - vilot of their ch:lrlc8r plane had not "lfoin~ed the'united Shtes Customs Seivice of their armgements. hfost of the conspi~atois entered pleas of guilty, but Doper and one other co-defendant cl~ose to go to trial. They were charged with violations of 18 U.S.C 5 371 and 21 U.S.C. $8 952(a) and 841(a). Sewren davs dkr the trial beean, Doper tesaed in his own defensc. Mr. Snerd conclnded his direct examination 41 ER. '"Btrck Piles, Jz giw& this same lnst~uction to eveiy wih~esswhose te&nony had been interripted by axecess Mr. Snerd objected to tlus proposed u~stiuction, explaining that he betieved that he had aright to confn. with Itis client about matters other than the en~inent cross-exzolination md Illat he wished to discuss l~rol~lrn~s ~'elaliny; to he tri;~l with his client. Tlw judge i~~ditwd hat lie 11ad confidme hat ct11111st4 wvould follmv his i~lstrechn; I~~rwver, Iw euprtwd SUIII~: 1lo1111t tint the defendn~~t \w,ould he :iblt: 111 do so, saying "I think lhu wwonld undentu~d it if i tnld l~im j11s1 not to t;tlk 10 ~IJII. :u~d I just think it is lrelter tl~itt he not t$k to you ;I~J~UI ;u~wtl~i~~r." , - .MI: Snerd ohiecttd to the cu~~rt's rdiw - 11111 :~t~t~.~re~~tly &. intIic:~tid t11aI 111: ~wld comply with it When court convened the next nio~lk~g. hk Suerd reauested and received pe~nussion to reopen Itis FEDERAL CORNER " anteed by the Sixth Aneudment. T~IIIS. we Iiave the Geders' Rule wI1ic11 has been modiCied on onlv one occasion: In Perm u. Leeke, 109 S.Ct. 594 (1989), the Supren~e Court ileld t11at the Fedelxi ~onstithlon does not con~pel"a trial judge to abwv a chninal defendant to consult with Ius attorney clndt~g a brief break ill his testioony. Why, then, are .ewe conce~ned about the Ceders' Rule? Because on Septen~ber 19 2001, the Unlted Slates Cout of App& for the Fifth Circuit (the Coort) retwsed a defendant's convictLon because Judge Junes T. Thnble, Jr. of the United States District Court for the VresteulDisfrict of 1.ouisiana was oh~io~ioosly unaware of it - and if a federal judge didn't know about it, maybe it's wort11 writing about. See Wied States u. Johison, -B3d. -, 2001 Wt 1096996 (ShCIc 2001). In Johnson, six defendants were cha~xed in a 49-connt indictn~ei~t wit11 rarious h g and other related offenses. One of the defendants -Troy Marks - begm testfying on the ninth day of trial. Before lus attorney had concluded the direct examination. Tndze T~%lble called a recess for the eveninn. As he had 10 VOICE FOR THE DEFENSE W\NW.ICDLA.COM NOVIMBER 1001
... AND, THE JUDGE CONTINUED, "DON'T TO YOUR CUENT DURING THE RECESS." I COURT Therecord will reflect thnt the jury has withdrawn tiom the courlrnom. Mc Marks and counsel. no oneis to talk to hlr. Marks about this case until he h& con~pleted his testimony, either side. JavyeeMc Marks, I'm talking about lawyers, I'mtalhg about any codefendantsand whatnot. Talk ahoutwhatever, the weather or what's going on in the NBA, or whatever, but don't talk about the me. ATIORNM AT UW: I call talk to him, Judge. COURT No sir, you can't. Not wMe he's under examiuation you can't. We just stopped in the middle of his exam ination. ATI'ORNEYXI LAW: Very well. The fonowing day, duriug cross-emminatiou of Marks by the prosecution, the court again recessed, this time for the weekend. The caurt made the sanle sequesh'ation order and, during a discussion regarding the attorneys' problems with seeing their clients at the jail, the following exchmge took place: A'ITORNEY AT IAV I wanted to go wd-I m't talk to him at all. His relalives can't talk [to] Iim. He's in t l ~ t~ialfor lus life. Somebody ought to be able to. He shotlld be able to talk to somebody COURT: You can't talk to him Mr. Rcglster because there wiu be no reasoil for you to talk to him other U~an talk to IW about the case. COURT: You m"to that while he's under mmination. As soon as his examhalion II%< Iwn con~pleted, cross :ad anv redirect :u~d ~nnmleted, the^ WLI ran talk to him all want to. NOIV, dd I unherst&d that they're not going to let you d him next week after he's completed lus examination? AlTORNEY AT TAW: I hwe had no problem. Sounds filluiliaq doesn't it? And the result was the 5mne as in Geders In reversing Marks' conviction, Judge Politz, writing for the Court, found the situation at bar indistinguishable from Gders and quoted some of the language horn the Snprcn~e Court's opinion in that case: A sequestration order dects a defendant in quite a different way from the way it affects a nonparty witness who pres~mably has no stake in the outcome of the trial. A nonpastywitness ordinarily has little, other than his own testimony, to dlscuss with trial counsel; a defendant ina crimiod me must often consult with his attorney during the trial. Moreover, 'the rule' accomplislm less when it is applied to the defendant lather thau a nonpaltywitness, because the defendsnt as amattwofright can be and usoally is present for all testimony and has the opporiunily to discuss his testimony with his aitorney up to the time he takes the witness stand. Such recwe6 are often ti~nes of intensi\,e work, with mctid drcisions to hc made and st~~tegies to bu retiewed. The la~yer may need 111 ohvain from lh clinn inforniatiun made relcmnt by thc day's kstln~o~~y, or he may need to pu~xoe inqui~y :dong lines nttr fully explored earlier. At the vely lwt, he uvernight recess during t~ial gives the ilefem h a a chance to discuss with counsel thc siuoilicancc " of the day's events. Judge Polilz pointed out that the Sup~vn~e Court had deternunud that there were orl~er wap to deal with inipropcr codrhi~~g including rigo~ 011s eross.eaanunation designed tu ferret out tl~ose attolnq5 who class the ethical lines bctwcen discuisinr testimonv and seekink to influence it. He also noted that by preve~~G Marks om talking &th his attorney during the memight recesses, the district court had dep~ived Marks of "the guirling hand of counsel at ewy step in the proceedings against II~III." Ceders' problems arc, of coursq uncnmnam. Jt~lnruun is the first rase with this iwue 111:lt the Rfth Circuit has wtitten on in liftem ).cWdrs. Most of us will never have a judge tell us that we can't talk to a client du~iog an overnight recess. But if it happens, we howw11at the anmr is: 'With all due respect, your honor, the Supreme Court and the United States Court of Appeals for the Fifth Circuit say that I m." It's nice to know that the Sixth Amendment is still alive and well. The Voice for the Defense is loolung for authors for features iu~d columns. Areas of special interest include: Advanced Triol Sklb Fo~orfeiture RICOICCE Appellate Issues low Office M~og@IneM Senlencing Guidelines Copiiol Cases Motion Prodice Sex Crimes Demanstrofive Evidence Drugs DWI Ethics Forensics Murder/Monslaughter Personal Offenses Pleo Negotiolions Pelice/f'rosetutodol Misconduct Property Offenses Safiol Crimos Trial Tottits (Basittsl Whife.Collor Crimes rrixif ow wb sitefor fk nrrllmrSpckaf. NOVEMBER 2001 WWW.1CDLA.COM VOICE FOR ME OEllNJC
Page 2 and 3: REGISTRATION INFORMATION l'lease co
Page 4 and 5: lHE PURPOSES OF TCDLA The purposes
Page 6 and 7: T CDU is illways looking for new en
Page 8 and 9: PRO BONO SERWCES COMMENT R ule 6.1
Page 12 and 13: THE CLIENT FILE IT'S MORE THAN JUST
Page 14 and 15: THE CLIENT FILE FILE CHECaST Client
Page 16 and 17: MUIION OF THE M OM Texas driving pr
Page 18: CAUSE NO. 1234567 § COURT AT WW NO
Page 22 and 23: THINGS TO KNOW ABOUT WWl€R ADVERn
Page 24 and 25: WINOS TO KNOW ABOVC LLL\IYCER ADVER
Page 26: Autopsy report not subject to Publi
Page 29: COURT OF CRIMINAL APPEALS PDR Opini
Page 32 and 33: dumping; Trial Court: Inforn~ation
Page 34 and 35: SIGNIFICANT DECISIONS REPORT 0860-0
Page 36 and 37: DON'T CALL THEM PRISONS by Roger Hu
Page 38 and 39: CDLP presents the 2001.2002 phone s
Page 40: o New Member Application 0 Renewal

tcdla - Voice For The Defense Online

Create successful ePaper yourself

Delete template?

Save as template?