"The Brief" - The ALA Blog

  • May 06, 2019 1:20 PM | Anonymous member (Administrator)

    On May 13, 2019, the Appellate Lawyers Association will welcome Neal Katyal, current Partner at Hogan Lovells and former Acting Solicitor General of the United States, to present on National Security Litigation and Other Developments in the U.S. Supreme Court.  

    A graduate of Yale Law School and former clerk for Justice Stephen G. Breyer of the U.S. Supreme Court, Neal is one of the most prominent appellate practitioners in the United States. He has orally argued 38 cases before the United States Supreme Court and has already argued more Supreme Court cases in U.S. history than has any minority attorney, recently breaking the record held by Thurgood Marshall.


    In addition to his contributions as an appellate practitioner, Neal has also served with distinction as a law professor for two decades at Georgetown University Law Center, focusing on constitutional law, national security law, criminal law, and intellectual property law. He has published dozens of scholarly articles and op-eds in national papers, appeared on numerous news programs and testified before Congress. Among his many honors and accolades, Neal is the recipient of the Edmund Randolph Award, the highest award given to a civilian by the U.S. Department of Justice.


    The ALA and signature event sponsors Forde Law Offices LLP and Tabet DiVito & Rothstein LLC are pleased to present this program. Additional details and registration information may be found below.


    Date: Monday, May 13, 2019


    Time: 11:30 a.m. to 1:00 p.m. (Please note start time.)


    MCLE: Participants will earn one hour of MCLE credit. The ALA is an approved MCLE provider.


    Location: Union League Club of Chicago, 65 West Jackson Boulevard, Chicago, Illinois. Please note the Union League Club enforces a dress code, which can be accessed here.


    Cost: $40 for public-sector ALA members; $50 for private-sector ALA members; $55 for public-sector nonmembers; and $65 for private-sector nonmembers. Lunch is included.


    PLEASE NOTE: Registrations processed on-site will be charged an additional $5 administrative fee.


    Questions? Call (630) 416-1166, ext. 303


    Register:


    1. Use our online registration system here to register for the event and also pay with a credit card. Or, if you prefer, you can register online but send a check for payment. Please note, credit card payments can only be accepted through the online registration process.


    2. Mail your completed registration form along with a check payable to ALA to: 


    Chris Teed 
    Appellate Lawyers Association 
    1717 North Naper Boulevard, Suite 102 
    Naperville, Illinois 60563


  • May 01, 2019 1:21 PM | Anonymous member (Administrator)

    n honor of Law Day, the Appellate Lawyers Association is reposting Chief Justice Karmeier's article, "Free Speech, Free Press, Free Society". The link to the article is below:

    http://www.illinoiscourts.gov/Media/PressRel/2019/042619.pdf

  • April 25, 2019 8:27 AM | Anonymous member (Administrator)

    By Nate Nieman


    The defendant in Garza entered into two plea agreements in which he agreed to waive his right to appeal. Garza v. Idaho, 139 S. Ct. 738, 742 (2019). Garza was then sent to prison. Id. Garza repeatedly told his attorney that he wished to appeal after he was sentenced, but Garza’s attorney did not file a notice of appeal because Garza had waived his right to appeal through the plea agreements. Id. at 743.


    Garza sought post-conviction relief after the time for filing a notice of appeal had run, claiming that trial counsel rendered ineffective assistance of counsel by failing to file a notice of appeal at Garza’s request. Id. The trial court denied the petition, and the Idaho Court of Appeals and Idaho Supreme Court affirmed that decision. Id. The Idaho Supreme Court held that “Garza, given the appeal waivers, needed to show both deficient performance and resulting prejudice; it concluded that he could not.” Garza v. Idaho, 139 S. Ct. at 743. The Idaho Supreme Court joined a minority of courts in ruling that Garza needed to show prejudice. Id. Eight out of ten Federal Courts of Appeals have held a presumption of prejudice applies “even when a defendant has signed an appeal waiver.” Id. The Supreme Court granted certiorari to resolve the split of authority. Id.


    The court began its analysis by invoking its decision in Roe v. Flores-Ortega, 528 U.S. 470 (2000), which held that prejudice is presumed under the second prong of the Strickland ineffective assistance of counsel test “when counsel’s constitutionally deficient performance deprives a defendant of an appeal that he otherwise would have taken.” Id. at 744. The question in this case was whetherFlores-Ortega applied when a defendant signed an appeal waiver. The Garza court held that it did. Id.


    The court reasoned that “while signing an appeal waiver means giving up some, many, or even most appellate claims, some claims nevertheless remain,” Garza v. Idaho, 139 S. Ct. at 745, such as the right to challenge whether the waiver itself was valid and enforceable. Id. The court also determined that “a notice of appeal is, generally speaking, a simple, nonsubstantive act that is within the defendant’s prerogative,” id. at 746, not the attorney’s. The court concluded that “Where, as here, a defendant has expressly requested an appeal, counsel performs deficiently by disregarding the defendant’s instructions.” Id.


    The court found that Flores-Ortega resolved the “prejudice” issue in this case, reaffirming that “‘when counsel’s constitutionally deficient performance deprives a defendant of an appeal that he otherwise would have taken, the defendant has made out a successful ineffective assistance of counsel claim entitling him to an appeal,’ with no need for a ‘further showing’ of his claims’ merit, ibid., regardless of whether the defendant has signed an appeal waiver.” Id. at 747. 


    The court rejected Idaho’s argument that Garza was not deprived of his right to appeal because he “never ‘had a right’” to do so. Id. at 748. The court responded that “Garza did retain a right to his appeal; he simply had fewer possible claims than some other appellants.”Id. Idaho’s argument was at odds with the rule already in place in most of the federal circuits that “When counsel’s deficient performance forfeits an appeal that a defendant otherwise would have taken, the defendant gets a new opportunity to appeal.” Garza, 139 S. Ct. at 749. Idaho could not persuade the Supreme Court to depart from the majority of jurisdictions that have adopted this rule.Id.


    The Garza court therefore held that “the presumption of prejudice recognized in Flores-Ortega applies regardless of whether a defendant has signed an appeal waiver. This ruling follows squarely from Flores-Ortega and from the fact that even the broadest appeal waiver does not deprive a defendant of all appellate claims. Accordingly where, as here, an attorney performed deficiently in failing to file a notice of appeal despite the defendant’s express instructions, prejudice is presumed ‘with no further showing from the defendant of the merits of his underlying claims.’” Id. at 749-50 (citing Flores-Ortega, 528 U.S. at 484).

  • April 25, 2019 7:40 AM | Anonymous member (Administrator)

    The Judges of the U.S. District Court for the Northern District of Illinois and the Chicago Chapter of the Federal Bar Association are presenting their 20th Annual Awards for Excellence in Pro Bono and Public Interest Service. Maria Z. Vathis, the president of the Federal Bar Association, will act as Keynote Speaker.


    The event will be held Wednesday, May 1, 2019, in the James Benton Parsons Memorial Courtroom, Everett McKinley Dirksen United States Courthouse, 25th floor, 219 S. Dearborn Street, Chicago, Illinois. The event will begin at 1 p.m. and be immediately followed by a reception in the Dirksen U.S. Courthouse Museum and History Center on the 21st Floor. 

  • April 23, 2019 5:34 PM | Anonymous member (Administrator)

    The Appellate Lawyers Association (ALA), the Madison County Bar Association (MCBA), and the St. Clair County Bar Association (SCCBA) are co-hosting a roundtable luncheon featuring the Justices of the Illinois Appellate Court, Fifth District. This event provides a unique opportunity to interact with the Justices and gain the perspective of the other side of the bench.


    Shortly after the luncheon, the ALA, MCBA, and SCCBA will host an Appellate Practice Seminar. The seminar will begin with a judicial panel composed of Chief Justice Lloyd A. Karmeier of the Illinois Supreme Court, Justice David K. Overstreet and Justice Judy Cates of the Illinois Appellate Court, Fifth District, as well as John J. Flood, Clerk of the Illinois Appellate Court, Fifth District. The judicial panel will be followed by a presentation on Appellate Brief Writing by ALA Past President Professor Edward J. Kionka. The seminar will conclude with presentations on Appellate Motion Practice by Retired Justice Richard P. Goldenhersh and Appellate Oral Argument by ALA Past President Brad Elward.


    Roundtable Luncheon: Friday, May 17, 2019, 12 p.m. to 1:30 p.m. (check-in begins at 11:45 a.m.), Gateway Center, One Gateway Drive, Collinsville, Illinois


    Appellate Practice Seminar: Friday, May 17, 2019, 1:45 p.m. to 5 p.m. (check-in begins at 1:30 p.m.), Gateway Center, One Gateway Drive, Collinsville, Illinois


    Additional details and registration information may be found after the jump.


    Luncheon Only:
    Cost: $35 for ALA, MCBA, or SCCBA members; $45 for public sector non-members; and $55 for private sector non-members.
    MCLE: One (1) hour MCLE credit for luncheon only. The ALA is an approved MCLE provider.


    Seminar Only:
    Cost: $55 for ALA, MCBA, or SCCBA members; $70 for public sector non-members; and $85 for private sector non-members.
    MCLE: Three (3) hours of MCLE credit for seminar only.


    Luncheon & Seminar:
    Cost: $90 for ALA, MCBA or SCCBA members; $115 for public sector non-members; and $140 for private sector non-members.
    MCLE: Four (4) hours of MCLE credit for attending both the luncheon and the seminar.


    PLEASE NOTE: On-site registrations will be charged an additional $5 administrative fee.


    Questions? Call (630) 416-1166, ext. 303


    Register:


    1.  Use our online registration system here to register for the event and pay with credit card. Or, if you prefer, you may register online but send a check for payment. Please note, credit card payments can only be accepted through the online registration process.


    2.  Mail your completed registration form along with check payable to ALA to:


    Chris Teed
    Appellate Lawyers Association
    1717 North Naper Boulevard, Suite 102
    Naperville, Illinois 60563


    Cancellations/Refunds: Cancellations must be received two business days prior to the event in order to receive a full refund. No refunds will be processed after this time. Cancellations must be in writing and may be submitted to cteed@wmrhq.com or faxed to (630) 596-1418. Additionally, payment is expected from no-shows.

  • April 22, 2019 8:17 AM | Anonymous member (Administrator)

    The U.S. Supreme Court has adopted three amendments to its rules that will take effect on July 1, 2019.


    The first limits parties' merits briefs to 13,000 words. The current rule permits merits briefs up to 15,000 words. In a summary explaining the rule change, the Court emphasized that, in its experience, parties could ably present their arguments in less than 15,000 words. 


    The second rule change requires parties to file their reply briefs by 2 p.m., 10 days before oral argument. Previously, parties could submit their reply briefs a week before oral argument. The purpose of this change is to give the Court more time to review reply briefs before argument.


    Finally, the Court will require parties filing certiorari petitions to identify any state or federal cases, in both trial and appellate courts, that are "directly related" to the case at issue. The Court explained that this rule will assist the justices in determining whether they need to recuse themselves from a case.

  • April 19, 2019 11:12 AM | Anonymous member (Administrator)

    By Carson Griffis
    Hinshaw & Culbertson LLP


    The Illinois Supreme Court held yesterday that it is unconstitutional to sentence juveniles to prison for more than 40 years. The decision, People v. Buffer, 2019 IL 122327, was authored by Justice Neville and was joined by all members of the court except for Justice Burke, who wrote a special concurrence.


    The court held that a sentence of more than 40 years in prison amounts to a de facto life sentence that violates the Eighth Amendment’s prohibition on cruel and unusual punishment. Id. ¶ 41. Relying on a trio of U.S. Supreme Court decisions (Roper v. Simmons, 543 U.S. 551, 560 (2005); Graham v. Florida, 560 U.S. 459 (2010); and Miller v. Alabama, 567 U.S. 460 (2012)), the Court emphasized that juvenile sentences must take into account a minor’s capacity for rehabilitation and diminished culpability. Buffer, 2019 IL 122327, ¶ 17. An overly long sentence, although not strictly a life sentence, does not consider these factors or give juvenile offenders an opportunity to rehabilitate. Id. ¶ 26.


    The Court also emphasized the need to draw a clear line for courts and parties to follow in future cases. Id. ¶ 29. The Court looked to sentencing statutes and noted that the legislature had prescribed a minimum sentence of 40 years for juveniles who had committed the same category of first-degree murder that would subject an adult offender to mandatory life imprisonment. Id. ¶¶ 37-39. Because this statute had been passed after Miller, the Court reasoned that the legislature must have viewed a 40-year sentence as compliant with Miller. Id. ¶ 39. Noting that the legislature is the body best suited to fashion criminal penalties, the Court "[e]xtrapolat[ed]" a line of 40 years from this statute. Id. ¶ 41. The Court also found that a 40-year sentence offered some opportunity for juvenile offenders to rehabilitate. Id. ¶ 40. Thus, any sentences of 40 years or less do not violate the Eighth Amendment. Id. ¶ 41.


    In her special concurrence, Justice Burke agreed that some sentences may constitute de facto life sentences that violate the Eighth Amendment. Id. ¶ 55 (Burke, J., specially concurring). But she disagreed with the majority’s approach of looking to sentencing statutes because “[i]t is [the] court’s responsibility to decide whether the legislature’s sentencing scheme is constitutional, not the other way around.” Id. ¶ 63. Rather than looking to sentencing statutes, Justice Burke would determine whether a juvenile’s sentence is a de factolife sentence by asking whether the juvenile’s age at the earliest projected time of release exceeds an incarcerated minor’s average life expectancy. Id. ¶ 65. After reviewing statistics on life expectancy, and factoring in the diminished life expectancy of incarcerated individuals, Justice Burke would find that any sentence that would result in a minor being released from prison when he or she is 55 years old or older is a de facto life sentence. Id. ¶¶ 66-67.

  • April 18, 2019 8:35 AM | Anonymous member (Administrator)

    The Illinois Supreme Court has assigned Judge Mark M. Boie, Resident Circuit Judge of Union County, to serve as an appellate court justice in the Fifth District Appellate Court. Effective May, 1, 2019, Judge Boie will fill the vacancy created by the election of Justice David K. Overstreet to the Fifth District Appellate Court. 


    Judge Boie was elected to the Circuit Court in 2000 and was retained by voters in 2006, 2012, and 2018. Before serving on the bench, he practiced at the Law Offices of Wesley L. Boie and Mark M. Boie and served as a conflict public defender in Union, Johnson, and Pulaski counties. 


    Judge Boie has been a member of the Special Supreme Court Advisory Committee for Justice and Mental Health Planning since 2010. Since 2015, he has served as co-chairperson of the Advisory Committee's subcommittee for compliance with the Mental Health and Development Disabilities Code. He is also a member of the Advisory Committee's subcommittee for education and participated in the drafting of a new Supreme Court rule on the use of restraints in involuntary commitment proceedings. 


    Judge Boie earned his Bachelor of Arts degree from the University of Mississippi in 1989 and his Juris Doctor from The John Marshall Law School in 1996.

  • April 12, 2019 9:32 AM | Anonymous member (Administrator)

    By Margaret Manetti
    Sosin, Arnold & Schoenbeck, Ltd.

    A complete appellate record is one of the most precious things an appellant can build for an appeal. Its primary importance was established again in People v. Burnett.
     

    In that case, the defendant appealed his conviction stemming from his arrest for unlawfully possessing a weapon. 2019 IL App (1st) 163018, ¶ 1. Three police officers spotted Burnett in a van with no front license plate. Id. ¶ 3. The officers approached the van, and noticed Burnett remove an “L” shaped object from his waistband and place it in the back of the van. Id. ¶ 4. The object turned out to be a semiautomatic handgun, and Burnett was arrested. Id. He did not have a FOID card or a concealed carry license. Id. ¶ 5. Burnett was later convicted, and he appealed. Id. ¶ 6.

    On appeal, Burnett argued that he was deprived of his constitutional right to effective assistance of counsel because his attorney should have moved to quash his arrest. Id. ¶ 7. He claimed that mere possession of a gun is no longer sufficient to establish probable cause to justify an arrest. Id. The First District acknowledged that the Illinois Supreme Court had determined in People v. Aguilar, 2013 IL 112116, that a statute was unconstitutional because it categorically criminalized the possession of a weapon outside the home. Id. ¶ 10.

    There was a problem, though: the record did not “contain sufficient information about the circumstances of defendant’s arrest from which we could determine whether he has an arguably meritorious claim.” Id. ¶ 11. The Court noted that because the case just went to trial, the State had no reason to factually demonstrate probable cause in the first place. Id. It specified that due to the insufficiency of the record about the arrest, “we have no way of knowing what the officers’ probable cause determination was based upon[.]” Id. ¶ 12.

    The Court forcefully rejected the defendant’s argument that holes in the record should go in his favor. It recognized that the defendant “attempts to spin the lack of testimony about probable cause into a conclusion that there was no probable cause.” Id. ¶ 14 (emphasis in original). This reasoning could not work, because the defendant was “drawing an affirmative conclusion from a negative premise. The lack of evidence currently in the record concerning probable cause and the officers’ pre-arrest beliefs cannot be equated with fact—that there was no evidence to support a probable cause determination.” Id. (emphasis in original).

    The Court concluded that it “would be imprudent for us to reach the question about the existence probable cause at this stage in the case because there is too much potential information to which we are not privy and because the issue was not visited by the circuit court.” Id. ¶ 16. “Because the record is insufficient, we must affirm.” Id.

    This case should serve as an important reminder to jealously guard the state of the trial court record for a potential appeal.


  • April 10, 2019 4:38 PM | Anonymous member (Administrator)

    On May 13, 2019, the Appellate Lawyers Association will welcome Neal Katyal, current Partner at Hogan Lovells and former Acting Solicitor General of the United States, to present on National Security Litigation and Other Developments in the U.S. Supreme Court.  


    A graduate of Yale Law School and former clerk for Justice Stephen G. Breyer of the U.S. Supreme Court, Neal is one of the most prominent appellate practitioners in the United States. He has orally argued 38 cases before the United States Supreme Court and has already argued more Supreme Court cases in U.S. history than has any minority attorney, recently breaking the record held by Thurgood Marshall.


    In addition to his contributions as an appellate practitioner, Neal has also served with distinction as a law professor for two decades at Georgetown University Law Center, focusing on constitutional law, national security law, criminal law, and intellectual property law. He has published dozens of scholarly articles and op-eds in national papers, appeared on numerous news programs and testified before Congress. Among his many honors and accolades, Neal is the recipient of the Edmund Randolph Award, the highest award given to a civilian by the U.S. Department of Justice.


    The ALA and signature event sponsors Forde Law Offices LLP and Tabet DiVito & Rothstein LLC are pleased to present this program. Additional details and registration information may be found below.

    Date: Monday, May 13, 2019


    Time: 11:30 a.m. to 1:00 p.m. (Please note start time.)


    MCLE: Participants will earn one hour of MCLE credit. The ALA is an approved MCLE provider.


    Location: Union League Club of Chicago, 65 West Jackson Boulevard, Chicago, Illinois. Please note the Union League Club enforces a dress code, which can be accessed here.


    Cost: $40 for public-sector ALA members; $50 for private-sector ALA members; $55 for public-sector nonmembers; and $65 for private-sector nonmembers. Lunch is included.


    PLEASE NOTE: Registrations processed on-site will be charged an additional $5 administrative fee.


    Questions? Call (630) 416-1166, ext. 303


    Register:


    1. Use our online registration system here to register for the event and also pay with a credit card. Or, if you prefer, you can register online but send a check for payment. Please note, credit card payments can only be accepted through the online registration process.


    2. Mail your completed registration form along with a check payable to ALA to: 


    Chris Teed 
    Appellate Lawyers Association 
    1717 North Naper Boulevard, Suite 102 
    Naperville, Illinois 60563

DISCLAIMER: The Appellate Lawyers Association does not provide legal services or legal advice. Discussions of legal principles and authority, including, but not limited to, constitutional provisions, statutes, legislative enactments, court rules, case law, and common-law doctrines are for informational purposes only and do not constitute legal advice.

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