Category: Counsel

Attorney-Client Communication During an Overnight Break

by · Feb 25, 2026 7:30 am

When a defendant in a criminal case chooses to testify, and there is an overnight break in the middle of the testimony, can the trial judge forbid the lawyer to talk to the client about the testimony, even while allowing discussion of other topics?

Yes, the U.S. Supreme Court held today in Villareal v. Texas.

The decision drew the line between two bookend cases, Geders v. United States (1976) and Perry v. Leeke (1989). Continue reading . . .

Artificial Precedent

by · Jun 3, 2025 3:42 pm

Lawyers using artificial intelligence to write their briefs have a problem. The AI brief writers sometimes cite nonexistent cases to support their arguments, Daniel Wu reports in the WaPo. Yes, that’s certainly easier than combing through the pile of opinions that a computer search turns up to find one that actually supports your point.

Using new tools to make legal research better and more efficient is a great improvement. That has been steadily improving since computer-aided research was first invented long ago, and AI may well be a quantum leap in that development. Using AI to actually write your brief is a much riskier step. But submitting an AI brief without cite-checking it is gross negligence, in my opinion.

The WaPo story reports: Continue reading . . .

Victim Restitution and the Ex Post Facto Clause

by · Apr 7, 2025 8:28 am

“Moving the goalposts” is widely recognized as an unfair thing to do. In criminal law, the issue rises to a constitutional one. From the beginning, the Constitution has forbidden both Congress and state legislatures from passing “ex post facto laws.”* The primary, and simple, effect of this prohibition is that a legislature cannot make an act criminal or increase the punishment for it after it has been committed, i.e., “after the fact,” in Latin.

Does a law that increases the length of time in which a restitution award may be collected constitute an ex post facto law? The U.S. Supreme Court today took up a case to decide that question, Ellingburg v. United States, No. 24-482.

There are two good arguments why the answer is no. Continue reading . . .

Unconnected Mitigation Evidence in Capital Cases

by · May 30, 2024 4:35 pm

Today the U.S. Supreme Court reversed a decision of the Ninth Circuit in a capital case, Thornell v. Jones. All but one of the Justices agreed that the panel decision was wrong. The Ninth Circuit itself refused to rehear this rogue decision over the dissents of ten of its judges. This is such a common occurrence it is hardly even news. The most newsworthy aspect of the case is that a solid majority of the Supreme Court is finally showing skepticism about the value of “background” mitigating evidence that has nothing to do with the crime. This is a most welcome development, even if over 40 years late.

Claims of ineffective assistance of counsel are the weapon of choice for capital defense lawyers who want to retry their state-court cases in federal court. The most common line of attack is to find something about the defendant’s background that the trial lawyer did not present, proclaim it to be critical evidence that would have turned the whole case around, and denounce the trial lawyer as incompetent because he did not present it. The evidence need not have any substantial weight if the murderer wins the judge selection lottery and draws judges who approach every capital case as an exercise in searching for an excuse to overturn the sentence. Continue reading . . .

The “Decency Defender”

by · Dec 15, 2020 11:44 pm

Much is being written (see, e.g., here) about the “progressive prosecutor.”  A progressive prosecutor, to sum things up, is an ideological defense lawyer elected in a one-party jurisdiction  —  virtually always Democratic  —  and financed directly or indirectly by anti-American billionaire George Soros.  He typically promises public safety and concern for crime victims, but in fact couldn’t care less about either.  His aim is to advance the interests of criminals, either by not prosecuting them at all, or prosecuting them on scandalously reduced charges, and then recommending some sentence like anger management (if any sentence at all).

All the talk about progressive prosecutors got me to thinking.  If we can “re-imagine” prosecutors, can we re-imagine defense counsel?  We often hear that the re-imagined prosecutor should consider himself in a broader role  —  i.e., as a “minister of justice.”  Would it be possible for defense attorneys to re-imagine themselves in a role beyond merely getting a walk for the client on this particular charge, and instead being an advocate for his client’s embracing a better life?

Continue reading . . .

U.S. Supreme Court Opens New Term

by · Oct 5, 2020 9:17 am

Today is the First Monday in October, the first day of the new term for the U.S. Supreme Court. As usual, the new cases the Court has taken up in its opening conference were announced last week, see this post, and today’s orders list contains a very long list of cases turned down. Along with shooting down the Stairway to SCOTUS suit against Led Zeppelin, there are a few other items of interest from the orders list. Continue reading . . .

Frivolous Pleadings for Murderers at Taxpayer Expense

by · Mar 20, 2020 2:20 pm

Adam GomezRaymond MataRaymond Mata is very justly sentenced to death for the murder of 3-year-old Adam Gomez. (I have reserved the stomach-turning facts for the end of the post.) He has the right to government-paid counsel to make his defense, but shouldn’t the government insist on some kind of threshold of non-frivolousness before it forks over taxpayers dollars? Do we really need to pay for complete garbage? That is exactly what Nebraskans have paid for in Mata’s latest petition to the U.S. Supreme Court.

Continue reading . . .

Mass Murderer Seeks SCOTUS Stay Over Video Spat

by · Feb 5, 2020 2:42 pm

Yesterday’s News Scan noted the case of Texas quintuple murderer Able Ochoa. The Texas Court of Criminal Appeals denied his stay request Monday. Now he has gone to the U.S. Supreme Court, case No. 19-7572, stay application 19A876.

The reason that the highest court of the land should stop the execution of long overdue justice for a man who murdered five people in his own family, including his two baby daughters, is that the prison wouldn’t let him make a video for his clemency application. Really, I’m not making that up.

Continue reading . . .