Commutation of Sentence: The Window Opens!

My phone is ringing off the hook, as families of federal inmates rush to take advantage of what will be a brief opening of the window to reduce sentences of non-violent offenders.

commutation of sentence

Commutation of Sentence: The time to act is now!

That’s right. There’s a new “Get Out of Jail” card issued by the Obama Administration, but it may last only as long as the current Presidency…about 20 months. So far, here’s what has happened:

Commutation of Sentence: The First Opening

Last December, President Obama commuted the lengthy sentences of eight federal inmates charged with various drug offenses involving cocaine and methamphetamines.

Earlier this week, Attorney General Eric Holder announced that the Obama Administration was about to dramatically expand executive clemency for convicted drug offenders. This means the commutation of sentence for hundreds or even thousands of federal inmates:

“The White House has indicated it wants to consider additional clemency applications, to restore a degree of justice, fairness, and proportionality for deserving individuals who do not pose a threat to public safety,” the Attorney General said. “The Justice Department is committed to recommending as many qualified applicants as possible for reduced sentences.”

commutations of sentence

Attorney General Eric Holder invites petitions for commutation of sentence

D.O.J Seeks Commutation of Sentence Petitions

To that end, yesterday, the Administration replaced the “Pardon Attorney” who had been seen as a roadblock to more liberal clemency. (A Department of Justice official, the Pardon Attorney receives all petitions for commutation of sentence and advises the President whether to grant or deny). No surprise here: Richard L. Rodgers, the outgoing Pardon Attorney, is a former major drug crimes prosecutor. The new Pardon Attorney, Deborah Leff, is a senior Justice Department attorney who has devoted her career to championing fair sentencing rights. This is VERY GOOD NEWS for federal inmates, imprisoned for non-violent offenses, particularly drug crimes.

Here are the traditional federal standards for granting commutation of sentence:

1. Disparity or undue severity of sentence.

2. Critical illness or old age.

3. Meritorious service to the government.

The Obama Administration seems to be emphasizing the first standard and even laying down a new, unwritten rule. “Non-violent drug offenders ought not be sentenced to lengthy prison terms, and when they are, we will open the jailhouse door.”

What else can we make of the President commuting those eight inmates last December and the Attorney General inviting as many qualified applicants as possible to apply for a reduction of their sentences? The message is clear.

Just look at those commutation of sentence grants in December. Charged with various drug offenses – mostly possession with intent to distribute – one defendant was sentenced to 20 years in prison, another 24 years, and several received life imprisonment. Thanks to the President’s commutation of sentence orders, all were scheduled to be released last week.

There is no automatic right to early release.  However, under new Justice Department guidelines announced earlier this week, commutation of sentence will be favored for federal inmates who:

  • are serving a sentence that, if imposed today, would be substantially shorter;
  • have a non-violent history with no significant ties to organized crime, gangs or cartels;
  • have served at least 10 years;
  • have no significant prior convictions;
  • and have demonstrated good conduct.

A petition for clemency will not necessarily be denied if the inmate fails to meet all the criteria. For example, someone who has served less than 10 years might still have an excellent chance if he or she fulfills the other criteria.  Contrast this with earlier times. Remember those eight inmates whose sentences President Obama commuted last December.  In his previous five years in office, he had commuted only one other sentence. Overall, since becoming President, he has granted only nine out of 10,490 commutation of sentence petitions.  That is about to change in a big way.

The power to grant executive clemency comes from the U.S. Constitution. Presidents have exercised that power since George Washington pardoned participants of the “Whiskey Rebellion.”

Of course, the Obama Administration will end in January 2016. There is no guarantee that the next President – whether Democrat or Republican – will continue this new, more liberal policy. The Office of the Pardon Attorney soon will be flooded with clemency requests. For inmates who seek a commutation of sentence, the time to act is now!

Marcia Silvers

Posted in Commutations of Sentence, Executive Clemency, Pardons | Tagged , , , , , | Leave a comment

Preserve the Record on Appeal

By Marcia Silvers

In my last post, I told of the sorrowful bane of appellate lawyers everywhere. It’s the case where there is clear error below, but trial counsel has inadvertently waived that error due to the failure to preserve the record. Here’s that post: “Give Your Appellate Lawyer a Helping Hand.”

In that post, I gave five important tips for preserving the record on appeal and not tripping up your appellate lawyer.

1. Make Your Objections.

2. Be Certain that the Court Clearly Rules on your Objections.

3. Be Certain That Rulings Are On the Record.

4. File Motions in Limine.

5. Make Offers of Proof.

preserving the record on appeal

Appellate Lawyer Marcia Silvers


Now, let’s look at tips six through ten:

6. Don’t Invite Error.

Be careful what you wish for. The law is clear that an appellant cannot complain about an error that he or she created or invited. Classic examples of invited error include a jury instruction you requested, a comment you made during your closing argument, a verdict form you submitted, or reliance upon evidence to which you objected at the trial.

7. Make Motions for Mistrial to Preserve the Record on Appeal.

If opposing counsel elicits testimony in violation of an evidentiary ruling or makes an improper remark during closing argument, a simple objection may not preserve the error for review, if the trial court gives a curative instruction. Where that occurs, trial counsel should move for a mistrial at the time of the improper conduct and argue to the court that the curative instruction was inadequate to prevent unfair prejudice. Without such a motion, the appellate court may conclude that the party was satisfied with the curative instruction and did not want the case to be taken away from the jury.

8. Prepare Your Own Jury Instructions and Object to Improper Instructions.

Error in the court’s charge is among the most likely sources of reversible error on appeal. Jury instructions can be a bonanza for the appellate lawyer but a minefield for the trial lawyer. Be aware that the appellate lawyer cannot claim error for the court’s failure to give a particular instruction if the trial lawyer never requested it. And, of course, under the doctrine of “invited error,” the appellate lawyer cannot complain about an erroneous jury instruction you requested below.

The casualness and informality with which proposed jury instructions are handled can also come back to haunt you. If the record on appeal is not clear as to who proposed the allegedly erroneous instruction, the appellate court will assume the appellant did. Therefore, prepare and file your own instructions. Be certain that charge conferences are on the record, and that you object to those instructions – even those offered by the court – that are erroneous and harmful to your case.

It is important to make specific objections, describing the objectionable content and the grounds of the objection, lest the argument be deemed waived. Also make sure that you object before the charge is read to the jury.

preserving record on appeal again

The United States Supreme Court in winter.

9. Don’t Shy Away from Objecting to Improper Closing Argument.

If you have reason to believe that your opposing counsel will make an improper remark during the closing argument, ask the trial judge in advance to caution opposing counsel against making it. If the court denies your motion, request a standing objection that would make it unnecessary to interrupt the closing argument.

However, trial lawyers usually cannot anticipate opposing counsel’s improper closing argument. In such a situation, you must contemporaneously object to that remark in order to preserve the record on appeal. Many lawyers have great reluctance to object during closing argument. Perhaps it is out of fear of alienating the jurors, who have waited all this time to hear the story summed up for them. Will the jury think you have something to hide if you pop up and mouth off? Or will they just be irritated at having the story interrupted? Maybe innately we know that jurors watch television and movies where objections are frequently made during testimony but seldom during argument.

In summary, be ever vigilant to improper closing argument comments – not just to preserve the record for appeal but to prevent the danger of the jury deciding the case by relying on opposing counsel’s comments that are not supported by the law.

10. This is Basic: Timely File Your Notice of Appeal.

Watch your calendar! Failure to timely file your notice of appeal might constitute malpractice in a civil case or ineffective assistance of counsel in a criminal case. And, most importantly, it will deprive your client of appellate review of the judgment.

Conclusions Regarding the Record on Appeal

You, the trial lawyer, have a stressful and challenging job. I am loathe to make it even more so by suggesting the need for heightened attention to preservation of error. However, as the proverb goes: “The greatest regret is for the things we have not done.” Even in the heat of trial battle, do your very best to preserve the record on appeal.

(Marcia Silvers is an appellate lawyer in Miami with more than 30 years experience in both criminal and civil cases. She has been named to both Florida Super Lawyers and to Florida Trend’s “Legal Elite.” For more information, visit her website.)

Posted in appellate lawyer, Ineffective assistance of counsel, Malpractice, Record on Appeal, Trial Lawyers | Tagged , , , , | Leave a comment

Give Your Appellate Lawyer a Helping Hand

By Marcia Silvers

I’m an appellate lawyer who recently argued a case before the U.S. Court of Appeals for the Eleventh Circuit. The record seems clear that the trial judge made several errors that warrant reversal of a criminal conviction.

So I must feel pretty good about the case, right?

Wrong.

Trial counsel failed to object and preserve the issues for appeal.  I was forced to argue that the “aggregation” of multiple errors deprived my client his constitutional right to a fair trial.  There is authority for that proposition, including an Eleventh Circuit case less than a year old.  But will the court rule my way?  There is no way to know.

Dear Trial Lawyer: Help Your Appellate Lawyer

So trial lawyers, hear my plea.  Preserve the record on appeal!  Do it for yourself, for your clients, and for your appeals lawyer.  I don’t mean to be critical.  In the heat of combat, certain matters may be overlooked that I might discover, months later, calmly reviewing the transcript with a hot cup of tea in one hand a yellow marker in the other.  But to avoid these problems in both civil and criminal matters, I’ve put together ten tips for not tripping up your appellate lawyer.  Below are the first five tips.  Next week, I’ll post numbers six through ten.  While I am a Florida appellate lawyer, I practice nationwide, and these “rules” are general enough to apply in nearly all juridictions.

1.  “Objection, Your Honor!”

The classic way in which trial lawyers fail to preserve the record is not making appropriate objections on the record, especially about the admission and exclusion of evidence.  Pay close attention to the timeliness of your objections.  Generally, the trial lawyer must object contemporaneously to the error at issue.  A premature or late objection is tantamount to no objection and does not preserve the error.  When in doubt, object!

Merely uttering the words, “I object,” however, is insufficient.  It is important to state the complete legal ground for what the trial court did or did not do.  Although no magic words are required to make a proper objection, the concern articulated in the objection has to be specific enough to inform the court of the perceived error.  The specific contention asserted as the legal ground for the objection must be the issue that is presented on appeal. Otherwise, the issue will be deemed not to have been preserved for appeal.

Jimmy Stewart didn't need an appellate lawyer

Jimmy Stewart knew how to object to George C. Scott’s question of Lee Remick in “Anatomy of a Murder.”

If your case is criminal, constitutionalize your objection whenever possible by explicitly asserting both Federal and State constitutional grounds. If your objection involves a rule or statute, it is always best to identify the rule or statute so that there is no question as to the grounds.

If a co-party makes an objection or motion and you want to join, state on the record that you join in that objection or motion.  There are many reported cases where a party prevails on appeal but his co-party loses because his trial counsel did not clearly join in the prevailing party’s objection or motion.

Trial lawyers are often placed in a position where they must make frequent objections in order to properly preserve the record, but they fear that constant objections will alienate the jurors.  (Or even the judge).  In such a situation, the trial lawyer can ask the court to have a “continuing objection.”  In most cases, the appellate courts will accept the continuing objection, provided that an adequate legal basis has been laid.  However, appellate courts prefer to have an objection stated each time the evidence is introduced.  Because a trial attorney’s failure to properly preserve the record for appeal can present dire consequences and because case law is ever-changing, it is always better to err on the side of caution and re-assert your position every time the same or a similar issue arises.

2.  Be Certain that the Court Clearly Rules on your Objections.

Here is another nightmare for every appellate lawyer.  Trial counsel diligently makes a timely and specific objection to a plainly reversible error, but all is for naught because the judge failed to make a clear ruling.  The law is definite that, unless the record unambiguously shows that the trial judge ruled on the request, motion or objection, the appellate court will not reverse.  For this reason, if the trial judge says he or she will rule “later,” make sure that the judge does so.

Gregory Peck didn't need an appellate lawyer

No one could make a dignified objection any better than Atticus Finch (Gregory Peck) in “To Kill a Mockingbird.”

If the trial judge responds to your objection by saying something cryptic that you assume means that your objection is overruled, ask the judge to clarify the ruling.  I will never forget the heartbreaking case of Carratelli v. State, 832 So.2d 850 (Fla. 4th DCA 2002).  The appellate court held that the trial judge committed reversible error by failing to grant the defense lawyer’s for-cause challenges to prospective jurors, but nevertheless affirmed the conviction.  Why?   Because counsel simply assumed, based upon the judge’s previous statements, that the request for additional peremptory challenges had been denied, when, in fact, the judge was silent.  As a result, instead of reversing the defendant’s vehicular manslaughter conviction, the appellate court affirmed.  The client is still serving a 15-year sentence.

Appellate Lawyer Cutler

Bruce Cutler, objecting during the Phil Spector murder trial. Be forceful, but it’s not necessary to look like Pavarotti hitting a high note.

3.  Be Certain That Rulings Are On the Record.

Some judges make important rulings in sidebar conferences or in chambers when a court reporter is either not present or not recording the colloquy.  Whether the judge is simply too casual in approach or is trying to protect the ruling from appellate scrutiny is of little matter.  What is important is to get the court to put its ruling on the record.

Yes, this can be ticklish.  You do not want to offend the judge.  But your primary responsibility is to your client.  A firm but polite request to have a court reporter record all conferences should suffice.  If a ruling is made outside the presence of the reporter, the prudent path would be for the lawyer on the losing side of the ruling to ask the judge for an oral recitation, once the court reporter’s fingers are again hovering over the keyboard.  As a very last resort if the request is refused – and yes, I know this risks alienating a cantankerous trial judge – the lawyer can announce the ruling into the record in a self-help method of preserving the record.

Paul Newman didn't need an appellate lawyer

Paul Newman knew how to object…perhaps a little too vociferously..

No matter how ornery the judge, I don’t recommend that trial counsel emulate fictional lawyer Frank Galvin (Paul Newman) in the classic film, “The Verdict.”  Faced with an unfavorable ruling from a crooked judge, the down-and-out lawyer blurted out to the judge: “I know about you.  You couldn’t hack it as a lawyer.  You were a bag man for the boys downtown and you still are!”

4.  File Motions in Limine.

Motions in limine are used to head off an opponent’s attempt to introduce evidence that is excludible for any number of reasons, including hearsay, irrelevance, or evidence that is more prejudicial than probative.  Such motions are obviously valuable to you, the trial lawyer, because they enable your objection to be considered before the jury hears the evidenceHowever, trial judges are often reluctant to grant such motions without having heard the testimony pertaining to it.  If the judge makes a tentative ruling or defers ruling on the motion in limine, the non-prevailing party must contemporaneously object to the admitted evidence at the time of trial.  The issue is not preserved for appeal merely by filing the motion in limine and obtained a ruling on it.

It is best to renew the motion before the witness who will testify as to the objectionable evidence takes the stand.  If you do not know which witness opposing counsel will use to introduce the evidence, you will just have to be vigilant so that you can object immediately when a witness starts to testify about the contested evidence.

If your motion in limine is definitively granted but, during trial, opposing counsel violates that ruling, you are still required to make a contemporaneous objection.  If the objection is sustained, in most jurisdictions you must move for a mistrial in order to preserve the error for appeal.

Appellate Lawyer Marcia Silvers

Marcia Silvers argues a point before the Third District Court of Appeal in Miami.

5.  Make Offers of Proof.

Federal Rule of Evidence 103(a)(2) provides that “[e]rror may not be predicated upon a ruling which…excludes evidence unless…the substance of the evidence was made known to the court by offer or was apparent from the context within which the questions were asked.”  This rule makes it clear that the failure of a trial attorney to make an offer of proof when the trial court excludes evidence will result in the waiver of the evidentiary argument.  Indeed, there are legions of cases finding waiver because of the failure to make an offer of proof.  It is a simple yet vital step for preservation purposes.  An offer of proof is sufficient if it apprises the court of the substance of the testimony and may be presented in the form of a concise statement.

Those are the first five tips.  Appeals lawyers in every jurisdiction will thank you for adhering to them.  I know trial lawyers work under constant stress and I hate to add to it.  So I gently suggest the need for heightened attention to preservation of error.  Even in the heat of trial battle, please do your very best to preserve the record on appeal. Give your appellate lawyer a hand and your client a fighting chance.

Marcia Silvers…for the Defense

Author’s Note: I received my law degree, with honors, from the University of Miami Law School in 1981. I am admitted to practice in the courts of Florida, the United States Supreme Court, eight federal courts of appeal, and several federal district courts.  I have won a wide variety of cases – many high profile – from homicide to white collar crime, Internet pornography to Medicaid fraud, drug offenses to tax evasion and money laundering. There is virtually no criminal offense I have not encountered in my three decades of practice, mainly in appellate and post-conviction litigation.  I also handle civil appeals.  I am been named to Florida Super Lawyers, rated 10.0 by Avvo, and named to “Legal Elite” by Florida Trend Magazine.  Visit my home page for more details.

 

 

Posted in appellate lawyer, Appellate Lawyers, Criminal Law, Litigation, Preserving Record on Appeal | Tagged , , , , , , , , , , , | Leave a comment

Appellate Lawyers: How To Choose the Best for Your Case

By Marcia Silvers

Based on my practice in the appeal courts for 33 years, I’ve come up with some advice for avoiding the pitfalls and traps that befall appellate lawyers. If you need an attorney for a criminal appeal or other post-conviction relief, such as under 28 U.S.C. Section 2255, or Florida Rule of Criminal Procedure 3.850, you already have stepped into the quicksand of the legal system.  Maybe you’re the victim of trial court error or ineffective assistance of counsel. Hopefully, this article will help you winnow through the pool of appellate lawyers in your time of need.

1.  Experience Counts with Appellate Lawyers.

It takes years to master the craft of sifting through transcripts for legal errors, researching the issues, writing persuasive briefs, and arguing the case effectively to multi-judge panels.  There is no magic number of appeals or post-conviction proceedings that will adequately train appellate lawyers.  But someone who has done 10 or 20 is just a beginner.  If I was forced to choose a magic number of criminal appeals, I would say 100 as the bare minimum for a lawyer to call himself or herself “experienced.”

2.  Appellate Lawyers Should Be Respected by Peers.

The lawyer should be rated AV by Martindale Hubbell, a combination that reflects the highest legal ability and highest ethical rating awarded.  Additionally, if the appellate lawyer had been selected by peers to elite groups, that, too, is a bonus.  For example, “Superlawyers” is a recognized rating service that chooses only the top five percent of practicing lawyers.

Appellate Lawyers must be polished orators.

Appellate lawyers must be both excellent writers and polished orators.  Here, Marcia Silvers argues a homicide case before the Florida Supreme Court.

3. Choose a Lawyer Who Will Actually Handle the Appeal.

Your appellate lawyer should handle every aspect of your case from the first appointment in which you discuss the case, through the oral argument in front of a multi-judge panel to any post-decision motions.  Also, beware of Internet sites that appear to be “national law firms” but actually refer cases to appellate lawyers not part of the firms.  They are basically just referral services masquerading as actual firms.

4. Evaluate Your Chances on Appeal.

Ask your potential appeals lawyer to evaluate your case.  Some are stronger than others.  No lawyer should ever “guarantee” victory.  But experienced appellate lawyers should be able to tell your chances based on the record and the court where the case is pending.

5. Choose an Appellate Lawyer with Enthusiasm for Your Case.

This is more subtle than the other tips. What do I mean? Appellate lawyers shouldn’t just  go through the motions…no pun intended. You don’t want your advocate thinking about his/her golf game instead of your case. You want an assertive warrior, someone who will enthusiastically carry your spear into battle. Criminal litigation is not a game; it is war, though carried out under a set of rules. The Florida Rules of Professional Conduct – commonly called the Ethical Rules – have even codified this notion: “As an advocate, a lawyer zealously asserts the client’s position under the rules of the adversary system.” Zealously! That’s the key word.

6.  Appellate Lawyers Should Be Polished Orators.

Arguing a case to a multi-judge panel is very different than presenting a case to a jury in the lower court.  No witnesses are examined or cross-examined in an appeals court.  Instead, appellate lawyers orally argue the major legal points and, most importantly, respond to the judges’ questions.  Some judges throw fast balls; others throw curves.  Your appellate lawyer must be able to hit either pitch out of the ballpark.  To do this, the lawyer must know ALL the applicable case law and how it applies to the facts of your case.  Appellate lawyers must also be sharp-witted and eloquent.

7.  Appellate Lawyers Must Be Excellent Writers.

Your appellate lawyer will write briefs on your behalf in which the facts of the case and the legal arguments are set forth. Briefs are arguments read by the judges and their law clerks before a decision is made as to whether a request for an oral argument will be granted. For that reason, among others, it is very important that your appellate lawyer be able to write clearly and persuasively.

8. You Don’t Necessarily Need an Appellate Lawyer Located in Your State.

Experienced appellate lawyers often practice in many jurisdictions.  In fact, this may be a sign that the lawyer is highly regarded.  So, ask your potential lawyer if he or she has ever handled cases in other states.

The United States Supreme Court is the World Series for appellate lawyers.

For appellate lawyers, the United States Supreme Court is the World Series and Super Bowl rolled into one.

9. Don’t Necessarily Choose the Lowest Priced Lawyer.

The old cliché, “You get what you pay for,” is often true in the practice of law. You don’t want an appellate lawyer who will merely “skim” the trial transcript or have a first year law student summarize it. You don’t want an appeals lawyer who takes on too many cases because he or she has set fees too low. Many factors can make appellate work complicated and time-consuming. A lengthy transcript, multiple defendants, and complex legal issues are all such factors. Experienced appellate lawyers are both more knowledgeable and more efficient at reviewing transcripts, isolating and researching legal issues, writing briefs, and orally arguing the case.

10. Were You the Victim of Ineffective Assistance of Counsel?

The Sixth Amendment of the U.S. Constitution guarantees the effective assistance of counsel.  This applies to both the state and federal courts.  If your trial lawyer’s performance was so deficient that it undermined confidence in the verdict, you may be able to overturn your conviction even after your conviction has been affirmed on appeal.  I have handled many “ineffective assistance of counsel” cases over the years and will expand on the subject in a subsequent blog.  For now, you can read a brief synopsis of the issue in Wikipedia.

Marcia Silvers…for the Defense

Author’s Note: I received my law degree, with honors, from the University of Miami Law School in 1981. I am admitted to practice in the courts of Florida, the United States Supreme Court, eight federal courts of appeal, and several federal district courts.  I have won a wide variety of cases – many high profile – from homicide to white collar crime, Internet pornography to Medicaid fraud, drug offenses to tax evasion and money laundering. There is virtually no criminal offense I have not encountered in my three decades of practice, mainly in appellate and post-conviction litigation.  Visit my home page for more details.

 

Posted in appellate lawyer, Appellate Lawyers, Choosing Appellate Lawyer, Criminal Law, Florida Law, Florida Supreme Court, ineffective assistance of counsel, ineffective assistance of counsel, Law, Legal Briefs, legal fees, Legal Research, oral argument, Oral Arguments, United States Supreme Court, Writing Briefs | Tagged , , , , , , , , , , , , , | Leave a comment