This week's Weekly Review has left me a tad frustrated. And it's late for a reason.
There weren't too many cases this week. And none of them (at least for those that I found on Westlaw) were worth saying anything about.
But on Friday, I noticed that the New York Law Journal, in the Decisions of Interest Section, featured a case called Downs v. Lape, decided Oct. 30, 2009. The frustrating thing is that it has not yet (as of Monday morning, November 9) shown up on Westlaw. And to my even greater frustration, it does appear on LEXIS.
Unless the case eventually finds its way to Westlaw, it does mean that accumulating a list of cases from Westlaw for any particular week may not be a comprehensive list. I know I have discussed this before, more than once, and I have made the decision to stick with Westlaw even though there is a chance that it may miss cases that show up on LEXIS, but this particular omission is really aggravating. It turns out that this one case that shows up on LEXIS but not Westlaw is the only interesting case this week. In fact, a COA was granted, and we haven't seen one of those for weeks.
It sheds light on the bigger problem here. There is no centralized database for these decisions. Put more explicitly, the district courts in New York do not publicly publish their decisions on the internet. I know that there are a lot of orders/decisions in general. Each judge issues many orders each week. Some are of very small significance. But why can't the courts publish online substantive (or maybe just dispositive) orders/decisions?
It's a big deal in my mind. Not all lawyers have access to both LEXIS and Westlaw on a regular basis. I am lucky to have access to both, but most public defenders do not have that luxury. And if some decisions show up in one electronic database and not the other, that's a problem in two separate ways. The most obvious way is that a lawyer may not have access to important decisions -- like Downs this week. Second, (and relatedly, I guess) an adversary may use a different electronic database and have access to those cases. That database may have a relevant case which can be used against the other side, which can feel like getting sucker punched. It's just not the way law should be practiced. I think it's a problem.
And there's a similar problem with the Second Circuit. The orders granting COA's (and denying them for that matter) are not published on line or even in the books. They should be. That is important information for lawyers.
With technology today, I really don't see why this stuff can't be made more available to the public.
Okay, that's enough complaining for a Monday morning. Let's get to the Weekly Review, starting with Downs:
1. Downs v. Lape, 08-CV-0092 , 2009 U.S. Dist. LEXIS 101664 (EDNY Oct. 30, 2009) (RJD)
- Habeas Denied
- Issues: Right to a public trial
- Notes: Counseled; COA granted
ANALYSIS: An odd little case. Issue concerns the exclusion of a 12-year-old member of petitioner's family from the courtroom. The Appellate Division held that the claim was unpreserved. DJ goes through an in-depth analysis as to whether the claim is procedurally defaulted. DJ points out that, while defense counsel did mention something about the right to a public trial during his argument, it wasn't really enough to move the trial court to create a record as to why the family member is being excluded. Since the defense failed to make the adequate record, then DJ was forced to say that the claim was procedurally defaulted.
Nevertheless, DJ goes on to discuss the state of the law as to the exclusion of family members from the courtroom. DJ points out that Waller is the controlling law and Waller only analyzes establishes the four-part test, but does not specifically relate to family members. The Supreme Court has, in dicta, mentioned a sort of heightened protection for family members in a case called Oliver. However, the Second Circuit has recently stated that it's not a part of the AEDPA deference cases since it's dicta. Despite that case, DJ does say that a court can't ignore the "uncompromising tone" of the language in Oliver and the Second Circuit has been "steadfast[ly] loyal" to the decision. On the other hand, there is some Second Circuit authority that suggests that the exclusion of family members for a limited time period is "trivial." DJ suggests that there could be two standards here that could lead to different results: (1) Waller; or (2) Waller plus Oliver minus triviality.
Due to the competing precedents and the openness of these questions, DJ says that the court shouldn't resolve them and it should be left up to the Circuit. So grants COA on these broad questions. Of course, the Second Circuit may never go anywhere near these questions if it should agree with the DJ that the claim is procedurally defaulted. It's not the cleanest context in which to send a case up to the Second Circuit. But I have been complaining about the stinginess of COA's, so I am just happy to see that one was granted.
Remaining cases (all taken from Westlaw) below the fold . . .
2. Washington v. Spears, 07-CV-7773, 2009 WL 3459222 (SDNY Oct. 28, 2009) (DLC) (RLE)
- Habeas Petition Dismissed as Moot
- Issues: Improper revocation of parole
- Notes: Adopting R&R (neither attached nor is there a prior cite to it); Essentially, petitioner asked to be returned to parole supervision and, during pendency of petition, he was. So claim was moot.
3. Dedeo v. Brown, 09-CV-0946, 2009 WL 3644253 (NDNY Oct. 28, 2009) (TJM)
- Motion for Reconsideration of Denial of Motion for Assignment of Counsel Denied
4. Kirton v. Ercole, 08-CV-0719, 2009 WL 3644344 (NDNY Oct. 28, 2009) (DNH)
- Habeas Denied
- Issues: (1) trial court gave inadequate charge and erred in failing to charge lesser included offense; (2) trial judge wrongfully denied certain motions; (3) statement should have been suppressed; (4) improper Sandoval ruling; and (5) improper enhanced sentenced and sentence was harsh and excessive
5. Dilbert v. Conway, 05-CV-0858, 2009 WL 3644351 (WDNY Oct. 28, 2009) (MAT)
- Habeas Denied
- Issues: (1) prosecutorial misconduct; (2) insufficient evidence of depraved indifference (procedurally defaulted)
6. Irvine v. Murray, 05-CV-6170, 2009 WL 3644361 (WDNY Oct. 28, 2009) (MAT)
- Habeas Denied
- Issues: (1) IAC; (2) confession was involuntary; (3) guilty plea was involuntary; (4) Brady
- Notes: Guilty plea case
7. Mahoney v. Rivera, 05-CV-6361, 2009 WL 3644365 (WDNY Oct. 28, 2009) (MAT)
- Habeas Denied
- Issues: (1) IAC; (2) weight of the evidence
8. Mota v. Epke, 08-CV-3228, 2009 WL 3682538 (SDNY Oct. 28, 2009) (RMB) (THK)
- Habeas Denied
- Issues: (1) newly discovered evidence; (2) insufficient evidence
- Notes: Adopting R&R (neither attached nor is there a prior cite)
9. Andrews v. Downstate Correctional Facility, 09-CV-1555, 2009 WL 3587280, (EDNY Oct. 27, 2009) (JG)
- Habeas Denied
- Issues: (1) IAC; (2) Lack of due diligence in executing arrest warrant
- Notes: Oral argument held
10. Gibson v. Greiner, 00-CV-1125, 2009 WL 3644133 (EDNY Oct. 27, 2009) (FB)
- Habeas Denied
- Issues: (1) defective indictment; (2) false evidence; (3) evidence should have been suppressed; (4) IAC; (5) Brady; (6) Actual innocence
- Notes: Kind of a mess of a case; DJ holds that most claims "appear[] time-barred"
11. Russo v. Zon, 05-CV-0293, 2009 WL 3614527 (WDNY Oct. 26, 2009) (MAT)
- Habeas Denied
- Issues:(1) IAC; (2) IAAC; (3) Improper admission of petitioner's statement to police; (4) Right to be present violation; (5) prosecutorial misconduct; (6) improper evidentiary rulings and jury instructions; (7) insufficient evidence
- Notes: Counseled
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