Justia Legal Ethics Opinion Summaries

Articles Posted in Criminal Law
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Petitioners Robert Ayerst and Justin Lewis were represented at their criminal trials by Robert Van Idour. Though a licensed attorney in Idaho, Van Idour was never admitted to practice in Washington. Accordingly, Van Idour was not authorized to practice law when he represented the petitioners, along with 100 other indigent defendants in Asotin County. Th Washington Supreme Court found Van Idour’s failure to gain admittance to the Washington bar was not just shockingly unprofessional, it was "unethical and indefensible." The issue presented here was whether a lawyer who is licensed in Idaho but not in Washington was nevertheless a lawyer for purposes of the Sixth Amendment to the United States Constitution. Ayerst and Lewis contended this failure resulted in a complete denial of counsel, which constituted structural error and demanded reversal of their convictions. While the Washington Supreme Court agreed Van Idour’s actions violated state licensure rules, it disagreed that they amounted to a constitutional denial of counsel. Therefore, the Court affirmed the Court of Appeals’ denial of Ayerst’s and Lewis’s personal restraint petitions. View "In re Pers. Restraint of Lewis" on Justia Law

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Jail personnel search inmate mail for contraband. To preserve confidentiality, mail from an inmate to an attorney is opened in front of the inmate; the contents are visually inspected but not read. An officer noticed an envelope from Cortez addressed to his attorney; with a “bulk in the center.” It smelled of feces. Suspecting the envelope contained contraband, he opened it but not in front of Cortez. The envelope contained another envelope fashioned from the lined yellow paper, marked “do not read.” The officer opened it and found multiple "kites," each made from different colored paper and with different writing. Kites are clandestine notes, written by inmates on small pieces of paper in very small print, then rolled up to minimize their size and facilitate concealment. The officer informed his supervisor.A magistrate conducted an in-camera examination and concluded: The messages have “the teeny tiny writing ... indicative of a gang-related kite…. I did not read the substance … none of them were addressed to [Cortez’s attorney]. None of them ... appeared to even be written by Cortez…. I do not find the attorney-client privilege applies.” The court of appeal agreed. The magistrate’s findings were supported by substantial evidence. Even if the jail violated the regulation requiring legal mail to be opened in the inmate’s presence, the remedy would not automatically render everything inside the envelope—including communications intended for people other than an attorney—subject to attorney-client privilege. View "People v. Superior Court of Santa Cruz County" on Justia Law

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An individual and an advocacy group seek to appeal from the denial of a motion to quash two grand jury subpoenas and an order compelling compliance with one of them. There is no jurisdiction for appeals challenging a grand jury subpoena for production of documents unless (1) the appellant has been held in contempt, or (2) a client-intervenor asserts that documents in the possession of a subpoenaed, disinterested third party are protected by attorney-client privilege.   The Fifth Circuit dismissed the appeal explaining that neither exception applied. The court explained that the subpoenaed documents are in the hands of Appellants. They are interested third parties in that they are being investigated for witness tampering. They have a direct and personal interest in suppressing the documents that could potentially corroborate the witness tampering accusation. Consequently, Appellants obviously have “a sufficient stake in the proceeding to risk contempt by refusing compliance.” Accordingly, the court wrote it lacks jurisdiction over the appeal, and Appellants must either comply with the subpoena or be held in contempt to seek the court’s review. View "In re: Grand Jury Subpoena" on Justia Law

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Barsanti was delinquent on $1.1 million of senior secured debt it owed to BMO Harris Bank. Barsanti’s owner, Kelly, hired attorney Filer and Gereg, a financing consultant. After negotiations with BMO failed, Filer introduced Gereg to BMO as a person interested in purchasing Barsanti’s debt. Filer created a new company, BWC, to purchase the loans. BWC purchased the loans from BMO for $575,000, paid primarily with Barsanti’s accounts receivable. Barsanti also owed $370,000 in delinquent benefit payments to the Union Trust Fund. Filer, Kelly, and Gereg used BWC’s senior lien to obtain a state court judgment against Barsanti that allowed them to transfer Barsanti’s assets beyond the reach of the Union Fund, using backdated documents to put confession-of-judgment clauses into the loan documents and incorrectly claiming that Barsanti owed BWC $1.58 million. Filer then obtained a court order transferring Barsanti’s assets to BWC, which then transferred the assets to Millwork, another new entity, which continued Barsanti’s business after the Illinois Secretary of State dissolved Barsanti for unpaid taxes. Gereg was Millwork's nominal owner in filings with the Indiana Secretary of State. Barsanti filed for bankruptcy. Filer instructed others not to produce certain documents to the bankruptcy trustee.After a jury convicted Filer of wire fraud 18 U.S.C. 1343., the district court granted his motions for a judgment of acquittal. The Seventh Circuit reversed and remanded. The evidence was sufficient to support the jury’s verdicts. View "United States v. Filer" on Justia Law

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Kwasnik was an estate-planning attorney who convinced clients to open irrevocable family trusts in order to avoid federal and state taxes and to ensure that they earned interest on the funds. Kwasnik named himself as a trustee, with authority to move assets into and out of the trust accounts. He received the account statements. In reality, Kwasnik moved the funds from his clients’ trust accounts to accounts of entities that he controlled. Within days, the funds were depleted. Clients were defrauded of approximately $13 million.Kwasnik pleaded guilty to money laundering, 18 U.S.C. 1956(a)(1)(B)(i), then moved to withdraw his plea. The district court denied the motion and sentenced him. Kwasnik then filed a notice of appeal. He later filed three more post-appeal motions in the district court concerning his guilty plea. The court denied them. The Third Circuit affirmed with respect to the denial of the first motion. The district court did not abuse its discretion in finding that Kwasnik did not have “newly discovered” evidence. The court declined to consider the others. A party must file a new or amended notice of appeal when he seeks appellate review of orders entered by a district court after he filed his original appeal, Fed.R.App.P. 4(b). View "United States v. Kwasnik" on Justia Law

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Hewittel was convicted of armed robbery and related offenses based solely on the testimony of the victim. Three witnesses—one of them having little relationship with anyone in the case—were prepared to testify in support of Hewittel’s alibi that he was at home, almost a half-hour from the crime scene when the crime occurred. Hewittel’s attorney failed to call any of those witnesses at trial, not because of any strategic judgment but because Hewittel’s counsel thought the crime occurred between noon and 12:30 p.m. when Hewittel was at home alone. The victim twice testified (in counsel’s presence) that the crime occurred at 1:00 or 1:30 p.m.—by which time all three witnesses were present at Hewittel’s home. Counsel also believed that evidence of Hewittel’s prior convictions would have unavoidably come in at trial. In reality, that evidence almost certainly would have been excluded, if Hewittel’s counsel asked. Throughout the trial, Hewittel’s counsel repeatedly reminded the jury that his client had been convicted of armed robbery five times before.The trial judge twice ordered a new trial. The Michigan Court of Appeals reversed, based in part on the same mistake regarding the time of the offense. The federal district court granted a Hewittel writ of habeas corpus. The Sixth Circuit affirmed, calling the trial “an extreme malfunction in the criminal justice system.” View "Hewitt-El v. Burgess" on Justia Law

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In an interlocutory appeal, the State challenged a trial court order that granted defendant Jorge Solis’ motion to disqualify the entire Seventh Judicial District Attorney’s Office because his public defender, began working for the DA’s office prosecuting his case. The issue presented here was whether, as Solis argued before the trial court, his attorney’s former representation of Solis constituted “special circumstances” under section20-1-107(2), C.R.S. (2022), requiring not just the attorney’s disqualification, but also disqualification of the entire DA’s Office. Following a half-day hearing, the trial court found that the DA’s Office had a screening policy in place and that it had taken additional precautions to wall the attorney off from Solis’s prosecution. The court thus concluded Solis had failed to establish that special circumstances existed such that “it [was] unlikely that [he] would receive a fair trial.” The Colorado Supreme Court concluded the trial court abused its discretion in granting Solis’s motion. The trial court’s determination that the attorney could potentially deviate from the screening policy in the future was based on his appearance in Mr. Flores-Molina’s case; it was not a determination that the attorney would violate the screening policy in this case or that confidential information from the attorney’s prior representation had not been or could not continue to be adequately screened from the attorneys prosecuting Solis’s case. Because there was no evidence in the record that Solis is unlikely to receive a fair trial, the Supreme Court vacated the trial court’s order disqualifying the entire DA’s Office. View "Colorado v. Solis" on Justia Law

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Langley was arrested in connection with a Newark drug trafficking operation. Langley agreed to plead guilty to conspiring to distribute and possess with the intent to distribute 28 grams or more of crack-cocaine, 21 U.S.C. 846, which carries a mandatory five-year minimum sentence, agreeing that he would not argue for a sentence below five years’ imprisonment and that he would enter into an appellate waiver, applicable to any challenges to a sentence of five years or below. During his plea hearing, the district court engaged in a thorough colloquy and ensured that Langley had discussed his plea agreement with his counsel and that he understood the appellate waiver. The court considered his arguments concerning the pandemic, the effect of the crack/powder cocaine disparity on the Guidelines calculation, and the age of his criminal convictions. The court determined that the applicable guideline range was 110-137 months and sentenced Langley to 60 months’ imprisonment.In lieu of filing an appellate brief, Langley’s counsel moved to withdraw, asserting in his Anders brief that he identified “no issue of even arguable merit.” Langley submitted a pro se brief, arguing for a further sentencing reduction. The Third Circuit dismissed. Langley’s court-appointed counsel filed an Anders brief that, on its face, met the standard for a “conscientious investigation" of possible grounds for appeal. Counsel is not required to anticipate or address all possible arguments. There are no non-frivolous issues for Langley to raise on appeal. View "United States v. Langley" on Justia Law

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Memphis attorney Skouteris practiced plaintiff-side, personal injury law. He routinely settled cases without permission, forged client signatures on settlement checks, and deposited those checks into his own account. Skouteris was arrested on state charges, was disbarred, and was indicted in federal court for bank fraud. At Skouteris’s federal trial, lay testimony suggested that Skouteris was not acting under any sort of diminished cognitive capacity. Two psychologists examined Skouteris. The defense expert maintained that Skouteris suffered from a “major depressive disorder,” “alcohol use disorder,” and “seizure disorder,” which began during Skouteris’s college football career, which, taken together, would have “significantly limited” Skouteris’s “ability to organize his mental efforts.” The government’s expert agreed that Skouteris suffered from depression and alcohol use disorder but concluded that Skouteris was “capable of having the mental ability to form and carry out complex thoughts, schemes, and plans.” Skouteris’s attorney unsuccessfully sought a jury instruction that evidence of “diminished mental capacity” could provide “reasonable doubt that” Skouteris had the “requisite culpable state of mind.”Convicted, Skouteris had a sentencing range of 46-57 months, with enhancements for “losses,” abusing a position of trust or using a special skill, and committing an offense that resulted in “substantial financial hardship” to at least one victim. The district court varied downward for a sentence of 30 months plus restitution of $147,406. The Sixth Circuit affirmed, rejecting challenges to the sufficiency of the evidence, the jury instructions, and the sentence. View "United States v. Skouteris" on Justia Law

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An assistant district attorney (the “DA”) in Fulton County, Georgia obtained a material witness warrant requiring Plaintiff to appear as a witness at trial. Plaintiff voluntarily appeared at trial, making execution of the warrant unnecessary. After the trial ended, the DA failed to inform the trial judge that the warrant needed to be recalled. A few months later, a police officer arrested Plaintiff and placed him in jail because of the outstanding warrant. A judge eventually ordered Plaintiff’s release.   Plaintiff brought a 42 U.S.C. Section 1983 action alleging, among other things, that the DA’s failure to initiate the warrant’s cancelation violated his Fourth and Fourteenth Amendment rights. The DA moved to dismiss the suit arguing that as a prosecutor she was entitled to absolute prosecutorial immunity. The district court agreed and dismissed Plaintiff’s claims against her.   The Eleventh Circuit reversed and held that absolute prosecutorial immunity does not extend to DA’s failure to take action to cancel the warrant. The district court thus erred in dismissing Plaintiff’s complaint.   The court wrote that determining whether prosecutorial immunity applies requires the court to take a fact-specific functional approach. Here, the court found that applying Third Circuit precedent from Odd v. Malone, 538 F.3d 202 (3d Cir. 2008), results in the conclusion that the DA is not entitled to absolute prosecutorial immunity. Thus the DA has failed to show that absolute immunity protects her post-trial conduct here. View "Kidanemariam Kassa v. Antionette Stephenson" on Justia Law