Appellate Practice Seminar

Full text

(1)

2011

Appellate Practice

Seminar

S A T U R D A Y, A U G U S T 2 0

, 2 0 1 1

San Francisco State University

Downtown Campus at the

Westfield San Francisco Centre

835 Market Street – 6th Floor

C A L I F O R N I A A T T O R N E Y S F O R C R I M I N A L J U S T I C E

seminar

committee

chair

Jeffrey Thoma

seminar

coordinators

Michael Becker, Robert Boyce and Jonathan Soglin

(2)

2 0 11 A P P E L L A T E P R A C T I C E S E M I N A R S C H E D U L E AND TOPICS

SATURDAY, AUGUST 20, 2011

**SFSU–Downtown Campus • 835 Market Street • San Francisco**

8:00 – 8:30am REGISTRATION

8:30 – 9:30am THE YEAR IN REVIEW

Al Menaster- Los Angeles County Deputy Public Defender

9:30 – 10:30am THE DIDDLE OF HARMLESS ERROR

Charles Sevilla & George Schraer- Private Practice

10:30 – 10:45am BREAK

10:45 – 11:45am BATSON-WHEELER UPDATE*

Elisabeth Semel- Professor, UC Berkeley School of Law

11:45 – 1:15pm LUNCH ON YOUR OWN

1:15 – 2:15pm BREAKOUTS

A) JUDICIAL MISCONDUCT

Victoria Henley, Director-Chief Counsel and

Janice Brickley, Legal Advisor to the Commissioners California Commission on Judicial Performance

B) MISDEMEANOR APPEALS

John Hamilton Scott- L.A. Deputy Public Defender

2:15 – 2:30pm BREAK

2:30 – 3:30pm RECENT DEVELOPMENTS IN FEDERAL HABEAS LAW

J. Bradley O’Connell - Assistant Director, First District Appellate Project

3:30 – 4:30pm MIRANDA ISSUES

Marjorie Cohn - Professor, Thomas Jefferson School of Law

This program entitles participants to up to six (6) hours Minimum Continuing Legal Education credits, including *one (1)hour specialization credit of Elimination of Bias in the Legal Profession.

(3)

Al Menaster

Albert Menaster has served as a Deputy Public Defender in Los Angeles County since 1973, and was named CPDA’s “Defender of the Year” in 1987, and was chosen Defense Attorney of the year by the LA County Bar Association in 2007. Al writes books, articles and lectures frequently on a wide range of defense topics, including computer technology for defense attorneys, juvenile court practice, Proposition 115, Three Strikes, Proposition 36, Courtroom Evidence and Motion Practice. Al has argued before the United States Supreme Court and repeatedly before the California Supreme Court. He has written and spoken at many programs for CACJ and CPDA over the years, and has authored amicus briefs with a remarkable success rate. Al is a managing editor of CACJ’s Forum magazine, for which he writes a tech. column and book reviews, as well as substantive legal articles.

J. Bradley O’Connell

J. Bradley O’Connell is the Assistant Director of the First District Appellate Project, which he joined in 1986, as one of its original staff attorneys. Brad has litigated appeals and writ proceedings on a wide range of issues, with emphasis on homicide issues, jury instructions, sentencing enhancements, habeas corpus practice, and sexual predator commitments. His recent victories include People v. Randle, 35 Cal.4th 987 (2005) in which the California Supreme Court extended the Flannel imperfect self-defense doctrine to imperfect defense of others. He recently appeared before the U.S. Supreme Court in Hedgpeth v. Pulido, 555 U.S. 57 (2008). Brad has also taught “Post-Conviction Remedies” as an adjunct professor at UC-Hastings School of Law.

Charles Sevilla

Charles Sevilla, CACJ past President. Chuck Sevilla will speak with co-presenter George Schraer on “The Diddle of Harmless Error.” A detailed syllabus will be provided covering numerous issues from which Chuck and George will discuss the challenges of persuading the appellate court that trial court error is prejudicial to the trial’s outcome. In this regard, they will discuss, among other topics, strategies for arguing prejudice through the statement of facts, the latest in review standards, and converting state issues into federal issues to get Chapman rather than Watson.

Chuck is a former Chief Deputy State Public Defender, Chief Trial Attorney for Federal Defenders of San Diego, and has been in private practice in San Diego since 1983. His publications include two novels (Wilkes: His Life & Crimes, Wilkes on Trial). Other fictional work includes briefing before the appellate courts of California, the Ninth Circuit and the U.S. Supreme Court.

S P E A K E R S

George Schraer

George Schraer received a BA degree in History, magna cum tsuris (tsuris is a Yiddish word meaning trouble or suffering), from U.C. Berkeley in 1968 and his JD degree, summa cum tsuris, from UCLA in 1971. The highlights of his law school career were playing basketball in Pauley Pavilion on a daily basis and attending UCLA in the midst of seven consecutive NCAA basketball championships spanning the Abdul-Jabbar to Walton era. He was ill on the only day any law was taught at the school and entered the profession unencumbered by any knowledge of the subject. His first appointed appeal, People v. Mayberry (1975) 15 Cal.3d 143, resulted in a unanimous favorable decision establishing the defense of mistake of fact as to consent. His appellate career has been on a downward spiral since then. He has been counsel of record in more than 600 criminal appeals, including 13 in the California Supreme Court, and has been the author or co-author of ten amicus briefs in the California Supreme Court and three in the United States Supreme Court. He has been counsel of record in more than 50 published Court of Appeal cases, most of them humiliating losses. Like most criminal appellate attorneys, he works like a galley slave, wears t-shirts and levis while working in a home office, and lives a simple life on a subsistence basis.

John Hamilton Scott

John Hamilton Scott (AB, UC Davis, 1968; JD, USC, 1973), was employed by the Los Angeles County Public Defender from 1974 to 2010, and in retirement continues to work part-time for that Office. Since 1979 he has been exclusively concerned with appellate litigation and has filed innumerable writs and appeals in the superior court’s Appellate Department/Division. He was a member of the Appellate Division Rules Working Group of the Judicial Council’s Appellate Advisory Committee which had primary responsibility for drafting the 2009 amendments to the Rules of Court regarding writs and appeals in misdemeanor cases.

Elisabeth Semel

Elisabeth Semel has been a criminal defense lawyer since she was admitted to practice in 1975, first as a deputy public defender and, later with the firm of Semel and Feldman. She has represented clients in state and federal courts with an emphasis on homicides and capital cases. Beginning in 1997, Semel served as the Director of the American Bar Association Death Penalty Representation Project in Washington, D.C. Semel joined the Berkeley Law faculty in 2001, as the first Director of the Death Penalty Clinic. In that capacity, Semel represents clients facing capital punishment and engages related litigation such as amicus curiae briefs. Semel and her students have prepared amicus curiae briefs that were filed in the U.S. Supreme Court in several death penalty cases, including

(4)

Miller-El v. Cockrell, Miller-El v. Dretke, and Snyder v. Louisiana (all dealing with race discrimination in jury selection).

Marjorie Cohn

Marjorie Cohn is a criminal defense attorney who has done trial and appellate work as a public defender and in private practice. She is a professor at Thomas Jefferson School of Law, where she teaches criminal law, criminal procedure, evidence, and international human rights. A past president of the National Lawyers Guild, she is also deputy secretary general of the International Association of Democratic Lawyers. Her books include Cameras in the Courtroom: Television and the Pursuit of Justice (1998), Cowboy Republic: Six Ways the Bush Gang Has Defied the Law (2007), Rules of Disengagement: The Politics and Honor of Military Dissent (2009), and The United States and Torture: Interrogation, Incarceration and Abuse (2011). Professor Cohn testified in 2008 about Bush administration torture policy before the House Judiciary Committee’s Subcommittee on the Constitution, Civil Rights and Civil Liberties. She is a frequent commentator for local, regional, national and international media. See www.

marjoriecohn.com.

Victoria B. Henley

Ms. Henley has been the Director and Chief Counsel of the California Commission on Judicial Performance since 1991. She graduated from the University of San Francisco School of Law with honors in 1978. She was engaged in the private practice of law with Long & Levit in San Francisco

from 1980 to 1990. She has lectured and served as a panelist for numerous judicial and legal education programs since 1985 in the United States and in other countries. She is a member of the Association of Judicial Disciplinary Counsel and served as its president from 2003 to 2007. She also serves on the American Judicature Society’s Center for Judicial Ethics Advisory Committee.

Janice Brickley

Janice Brickley has been the Legal Advisor to the California Commission on Judicial Performance since 2007. Between 2005 and 2007, she was an investigating attorney for the commission. Ms. Brickley is a graduate of the University of California, Berkeley School of Law (Boalt). Prior to her employment with the commission, Ms. Brickley was in private practice specializing in criminal appellate and juvenile law, served as a pro-tem juvenile court referee in the Alameda County Superior Court, worked as a public defender in Alameda County, and clerked for a justice of of the Alaska Supreme Court. She has served as a pro tem juvenile court referee in the Alameda County Superior Court, taught numerous courses as an adjunct law professor, and was a contributing author to California Juvenile Court, Practice & Procedure (Matthew Bender). As a supervising attorney at the Northern California Innocence Project, Ms. Brickley, with Golden Gate University School of Law Professor Susan Rutberg, and their students, successfully litigated a writ of habeas corpus that won the release and exoneration of Pete Rose who spent 10 years in prison for a rape he did not commit. She is a board member of the Association of Judicial Disciplinary Counsel.

S P E A K E R S CONTINUED

Not a CACJ Member…

Join Today & Attend this Seminar for Free!!!

Renew Your Membership & Pay the Reduced Membership Tuition Rate!!!

New CACJ Membership Rates & Benefits for Attorneys in First 5 Years of Practice First 2 Years of Practice: $35/Year

In Practice 2 + Years to 5 Years $70/Year

and Extremely Reduced Seminar Tuition 70% Savings!!!

Already a Member…

Register with a Group and Receive 10% to 25% Off Your Tuition

Contact the CACJ Office @ 916/643-1800 for Additional Information Or go to: WWW.CACJ.ORG

Save $$$$$

(5)

2 0 1 1 A P P E L L A T E S E M I N A R R E G I S T R A T I O N F O R M

REGISTER ONLINE AT WWW.CACJ.ORG

name » dateadmittedtobar »

firm » barnumber »

address »

city » state » zip » email »

phone (areacode) » fax (areacode) »

RETURN FORM TO:

California Attorneys for Criminal Justice 1540 River Park Drive, Suite 224A

Sacramento, CA 95815

Phone: (916) 643-1800 • Fax: (916) 643-1836

STEP 1

STEP 2

STEP 3

MEMBERSHIP DUES: New Membership Rates for Law Students and Attorneys in First 5 Years of Practice Includes1 Free CACJ Seminar.*** Join Today and Pay the Member Rate for Seminar Tuition.

Out-of-State Attorney ...$100

Associate Member ...$70

Friend of CACJ (not engaged in legal profession) ...$40

Law Student** ...$10

Attorney in Practice up to 2 Years** ...$35

Attorney in Practice 2+ to 5 Years** ...$70

* Life Members and Patrons may attend two one-day seminars each year at no charge.† Call CACJ for payment options **Law Students and Attorneys in practice 0–5 years receive 1 free CACJ Seminar. By adding a $50 donation to the above dues, you will support the California Attorneys for Criminal Justice Political Action Committee, which supports our position on issues and candidates for state elective offices who are committed to the protection of individual rights and the improvement of the criminal justice system. Dues and PAC contributions are not deductible as charitable contributions for Federal Income Tax purposes. Preregistration Deadline: Friday, August 12th, 2011 at 5:00 p.m. Preregistration not accepted after August 12th, 2011 at 5:00 p.m. Payment must be included with form Late registration is subject to a $20 late fee Life Member*† ...$5000

Patron*† ...$600

Sustaining Member ...$300

Attorney in practice over 5 years ...$175

Public Defender in practice over 5 years and Law Professor ..$120

Attorney over 5 years and in Patron’s or Life Member’s firm ...$120

REGISTRATION FEES:Registration includes syllabus CD. To preorder a hard copy syllabus see Step 5.

To preregister for these seminars, CACJ must receive your preregistration form and payment by Friday, August 12th, 2011,

at 5:00 p.m. Postmarks after that date will not be accepted. Late registration includes a $20 fee.

Prepaid Late Register CACJ Attorney Member (5+ yrs of Practice) ... $14500 ... $16500

CACJ Attorney Member (0–5 yrs of Practice) ... $4350 ... $4950

Attorney Non-Member ... $18500 ... $20500

CACJ Investigator/Other ... $11500 ... $13500

PAYMENT:

Registration Fee ...$ _______ Membership Dues (if signing up today) ...$ _______ Hard Copy Syllabus – $18.00 ...$

TOTAL ... $ _______

STEP 5

STEP 4

CONFIDENTIALITY PLEDGE : This pledge MUST be read and signed before CACJ is able to process your registration!

I hereby acknowledge that materials and information provided in this packet, at the seminar, and syllabus materials, are confidential information and may not be distributed or disclosed except to other defense practitioners. This information reflects thoughts, opinions, impressions and strategies with regard to previous and ongoing cases and, as such, is protected under the attorney-client privilege and work product doctrine. The materials provided at the seminar are licensed to participants for use in defense of criminal cases only, and any other use or distribution is a violation of copyright laws and the attorney’s ethical obligation. By signing this pledge, I agree to abide by this understanding and to keep all information privileged. My signature also indicates that I am involved exclusively in the defense of persons accused in criminal cases.

Signature: _________________________________________ Date: _____________

Prepaid Late Register Investigator/Other Non-Member ... $14500 ... $15500

CACJ Law Student ... $975 ... $1275

Student Non-Member ... $6500 ... $8500

There is a $35 fee for check returned for insufficient funds or credit cards declined.

❍ Check enclosed (payable to CACJ) ❍ Charge my: ❍ Visa ❍ MC

creditcardnumber »

3 digitsecuritycode (required) » exp. date » billingaddress (required) »

signature »

❍FREE Seminar Tuition “Check here to use your Free Seminar”

(6)

California Attorneys for Criminal Justice

1540 River Park Drive, Suite 224A Sacramento, CA 95815

RETURN SERVICE REQUESTED

Seminar Information Enclosed

MCLE AND SPECIALIZATION CREDITS: CACJ certifies this activity is approved for MCLE credit by the State Bar of California in the amount of 6.0 hours. This seminar is also approved for Certification and/or Recertification as a Criminal Law Specialist and Appellate Law Specialist by the California Board of Legal Specialization in the amount of 6.0 hours of which 6.0 hours applies to Appellate Law Legal Specialization and 3 hours applies to substantive criminal law and procedure and 4 hours applies to writs, appeals and ancillary proceedings and 1.0 hours specialization credit of Elimination of Bias in the Legal Profession.

ACCOMMODATIONS: A limited number of guest rooms have been reserved at the Hotel Union Square, 114 Powell Street, San Francisco, Friday, August 19th – Saturday, August 20th, for $129 single/double occupancy rate per night. Please call Janelle Granfors at 415/351-4149 by Tuesday, July 19th, to obtain this rate. For more information go to: www.hotelunionsquare.com

GROUP DISCOUNTS:Groups of 5 to 20 will receive a 15% tuition discount and groups of 21 or

more will receive a 20% tuition discount. Groups must pre-register together as a group by Friday

August 12th, at 5:00 pm. Only one discount allowed per registration. Group discount does not apply to student registrations as their registration has already been dramatically reduced.

SFSU Downtown Campus is located at the Westfield San Francisco Centre; with many restaurants and shopping opportunities; for more information go to: http://westfield.com/sanfrancisco/index. html.

LOCAL TRANSPORTATION AND PARKING: The Powell Street BART/MUNI Metro Station is below the Westfield San Francisco Centre at Powell and Market Streets.

The SFSU website also has information about convenient parking and local transportation and a map of the area with nearby hotels and shopping.

Parking, Bart & Bus Info: http://www.sfsu.edu/~downtown/rental/parking.htm

Early Bird discounted parking at the Mason-O’Farrell Parking Garage, 325 Mason St.; $15 before 10:00 a.m., depart by 7:00 p.m.

The Fifth & Mission/Yerba Buena Garage is $3/hour for the first 7 hours and then $25 for 7–12 hours, and is across the street from the Westfield Centre; it allows drivers to avoid crossing Market Street. http://www.fifthandmission.com/prices.htm

Map of Area & Nearby Hotels: http://www.sfsu.edu/~downtown/rental/nearbyhotels.htm

Don’t Miss These

Upcoming CACJ

Seminars …

DUI RULES OF THE ROAD XIV

Saturday, October 29th, 2011 Hilton Hotel – Palm Springs

ANNUAL FALL CRIMINAL DEFENSE SEMINAR

Saturday, December 10th, 2011 Hotel Nikko – San Francisco

Figure

Updating...

References

Updating...

Related subjects : pro tem.