Appellate Practice Seminar - California Attorneys for Criminal Justice

Appellate Practice Seminar
September 12, 2015
Cal Western School of Law
San Diego
FEATURING :
Justice Cynthia G. Aaron & Justice Richard D. Huffman
Associate Justices Fourth District Court of Appeal—Division One
Perspectives from the Bench on Criminal Appellate Practice
with Questions/Answer Session
Al Menaster, The Year in Review
George Schraer & Chuck Sevilla, Effectively Arguing Ineffective Assistance of Counsel
Hassan Gorguinpour, Cognitive Science, Decision Making and Your Win-Loss Record
Pat Ford, Confessions/Interrogations
J. Bradley O’Connell, Review of Homicide Law
Elaine Alexander, moderating a panel discussion with
Frank Birchak, Cindi Mishkin & Mark Brown
Navigating the Turbulence That is Proposition 47
The Appellate Practice Seminar qualifies for 7.25 Hours of MCLE
CACJ records all seminar attendance and related MCLE as required by the California State Bar;
this information can be accessed by CACJ Members on the CACJ website or by contacting the CACJ Office.
www.cacj.org
1555 River Park Drive, Suite 105 ● Sacramento, CA 95815
Phone: (916) 643-1800 Fax: (916) 643-1836
Visit cacj.org/events/CLE-seminars to register.
Call CACJ at (916) 643-1800
or email [email protected] for more information
Appellate Practice Seminar Schedule
8:00 – 8:30am
8:30 - 9:30
9:30 - 10:15
Registration
Coffee & Muffins to be provided
Al Menaster
The Year in Review */**
Justice Cynthia G. Aaron & Justice Richard D. Huffman
Associate Justices Fourth District Court of Appeal - Division One
Perspectives from the Bench on Criminal Appellate Practice
with Questions/Answer Session */**
Send Question(s) to [email protected]
10:15 - 10:30
10:30 - 11:45
Break
Chuck Sevilla, & George Schraer
Effectively Arguing Ineffective Assistance of Counsel */**
11:45-12:30
Pat Ford
What's up with Miranda these days? */**
12:30 - 1:30pm Lunch to be provided
Hassan Gorguinpour
1:30 - 2:30
Cognitive Science, Decision Making and Your Win-Loss Record */**
2:30 - 3:30
3:30 - 3:45
3:45 - 5:15
J. Bradley O’Connell
Review of Homicide Law */**
Break
Panel Discussion: Elaine Alexander moderating with
Frank Birchak, Cindi Mishkin, and Mark Brown
Navigating the Turbulence That is Proposition 47 */**
General MCLE
Total Hours
7.25
Specialization:
*CRIMINAL LAW
(A)
(B)
(C)
(D)
Evidence
Trial Advocacy
Substantive Criminal Law & Procedure
Writs, Appeals & Ancillary Proceedings
**APPELLATE LAW
0 (A) Pre-Trial, Trial, or Post- Trial Practice
1.0 & Procedure or Substantive Law
4.25 (B) Appeals & Writs
7.25
5.25
7.25
Appellate Practice Session Summaries
The Year in Review
the issue on appeal both as a
procedural
salve
against
forfeiture arguments and as a
stand-alone argument for relief.
defense victories on the
questions of when a suspect
Al Menaster
Specialization:
invokes Miranda rights, when s
1.0 hours Appellate Law: Appeals and
[he] is in custody for Miranda
Writs; Substantive Law Topics .
1.0 hours Criminal Law: Writs, Appeals, and
purposes, what makes a
Ancillary Proceedings; Substantive Criminal
Cognitive Science,
statement involuntary, and
Law and Procedure.
Decision-Making, and Your much more."
Win-Loss Record
Al Menaster, the head deputy
Hassan Gorguinpour
for appellate and training for
Review of Homicide Law
the Los Angeles County Public Specialization:
J. Bradley O’Connell
1.0 hours Appellate Law: Appeals and Writs; Pre
Defender's Office, will present -trial, Trial, or Post-trial Practice and Procedure.
hours Criminal Law: Writs, Appeals, and
Specialization:
a review of the past years’ 1.0
Ancillary Proceedings; Trial Advocacy.
1.0 hours Appellate Law: Appeals and
worth of case law, discussing
Writs; Substantive Law Topics.
1.0 hours Criminal Law: Writs, Appeals, and
how to avoid or minimize bad Cognitive
scientists
have Ancillary Proceedings; Substantive Criminal
cases, how to effectively use learned that people process Law and Procedure.
good cases, and developing information differently as they
trends and cases in the pipeline. fatigue. Using a set of heuris- Navigating the Turbulence
That is Proposition 47
tics, the tired brain reaches
Panel Discussion:
Justice Cynthia G. Aaron & certain types of conclusions
Elaine Alexander
Justice Richard D. Huffman more quickly; and lawyers are
moderating with
Associate Justices Fourth District generally dealing with an overCourt of Appeal - Division One
Frank Birchak,
worked, tired audience. Thus,
Perspectives from the Bench
Cindi Mishkin,
on Criminal Appellate Practice there is value in learning about
and Mark Brown
the tired brain. This discussion Specialization:
with Questions/Answer
has the following goals: (1) 1.5 hours Appellate Law: Appeals and
Session
Substantive Law Topics.
outline the major features of Writs;
Specialization:
1.5 hours Criminal Law: Writs, Appeals, and
0.75 hours Appellate Law: Appeals and Writs.
tired thinking; (2) describe the Ancillary Proceedings; Substantive Criminal
0.75 hours Criminal Law: Writs, Appeals, and
interaction
between
tired Law and Procedure.
Ancillary Proceedings.
thinking and rested thinking;
The
apparently
“simple”
Effectively Arguing
and, (3) explore how these
reforms enacted in last
Ineffective
insights might affect the way
November’s Prop 47 have
Assistance of Counsel.
we do our jobs.
given rise to an extensive array
Chuck Sevilla, &
of complex substantive and
George Schraer
What's up with
procedural issues. This panel
Specialization:
Miranda these days?
0.75 hours Appellate Law: Appeals and Writs.
will explore the major issues
0.75 hours Criminal Law: Writs, Appeals, and
Pat Ford
arising so far, the logistics of
Ancillary Proceedings.
Specialization:
0.75 hours Appellate Law: Appeals and
litigating the large volumes
Writs; Substantive Law Topics.
This is an often used and sel- 0.75 hours Criminal Law: Writs, Appeals, and potentially hitting trial and
Proceedings; Substantive Criminal
dom successful issue, yet it Ancillary
appellate courts, and effective
Law and Procedure.
must be raised when it presents
strategies for coordination
itself. The discussants will talk A discussion of recent case law between trial and appellate
about ways to effectively argue on Miranda issues focusing on counsel.
Appellate Practice Speaker Biographies
Honorable Cynthia G. Aaron,
Associate Justice
Justice Cynthia Aaron was appointed to
the Fourth District Court of Appeal in
January, 2003. Prior to her appointment
to the Court of Appeal, Justice Aaron
served as a United States Magistrate
Judge in the United States District Court
for the Southern District of California.
She was appointed to that position in
1994.
Justice Aaron received her law degree,
cum laude, from Harvard Law School in
1984. She received a B.A. in
psychology, with distinction and
departmental honors, from Stanford
University in 1979, and was elected to
Phi Beta Kappa.
Justice Aaron began her legal career as
a trial attorney at Federal Defenders of
San Diego, Inc. In 1988, she left Federal
Defenders to form a law firm with a
colleague. Justice Aaron left her law
firm in 1994 when she was appointed to
the position of United States Magistrate
Judge.
Justice Aaron has served as an Adjunct
Professor of Law at both the University
of San Diego School of Law and
California Western School of Law,
teaching trial practice. Justice Aaron
was president of the San Diego County
Judges Association from 2001 - 2002,
and was a member of the Board of
Directors of that organization from 2000
to 2003.
Honorable Richard D. Huffman,
Associate Justice
Justice Richard Huffman was appointed
to the Fourth District Court of Appeal
for the State of California by Governor
George Deukmejian in October of 1988
following his tenure as a Judge of the
Superior Court for San Diego County
since April of 1985.
Prior to his appointment to the bench,
Justice Huffman served as Chief Deputy
District Attorney for over 10 years and
as Assistant District Attorney for the
remainder of his 14 years service with
the San Diego County District
Attorney's Office. His contributions to
the administration of justice and his trial
skills brought him four singular honors:
"Outstanding Prosecutor of the Year" by
the California District Attorneys
Association,
"Outstanding
Public
Lawyer" by the San Diego County Bar
Association, "Prosecutor of the Year"
by Citizens for Law and Order, and
selection for membership in the
American College of Trial Lawyers. He
was also the recipient in 1988 of the San
Diego Trial Lawyers Association's
"Trial Judge of the Year Award." In
2012 Justice Huffman was presented
with the Ronald M. George Award for
Judicial Excellence by the Judicial
Council of California.
He began his legal career with the State
Attorney General's Office. For three of
his five years there, Justice Huffman
headed the Attorney General's Special
Prosecutions and Organized Crime Unit
for Southern California, also serving in
a cross-designated capacity as Special
Assistant United States Attorney for the
Southern and Central Districts, as well
as being a member of the Federal Strike
Force on Organized Crime in Los
Angeles.
Additionally, Justice Huffman is a
former Vice President of the San Diego
Bar Association, served two terms on
the State Bar of California's commission
evaluating judicial nominees, and
continues to serve as a law professor
and a regular lecturer at programs for
judges and attorneys. He has been a
member of the adjunct faculty of the
University of San Diego law school
since 1972, and has served as a faculty
member and as director of the
University's
International
and
Comparative
Law
programs
in
Guadalajara, Mexico, Oxford, England
and Dublin, Ireland.
Justice Huffman was a member of the
California Judicial Council from 1997
to 2011, and served as chair of its
Executive and Planning Committee. He
is currently chair of the Blue Ribbon
Commission on Children in Foster Care,
and
chair
of
the
Financial
Accountability
and
Efficiency
Committee for the Judicial Council. He
has also served as co-chair of the Tribal
Court/State Court Forum, chair of the
Riverside Criminal Backlog Reduction
Task Force, chair of the Criminal Law
Advisory Committee, a member of the
Appellate Advisory Committee, and
chair of the Task Force on Photography,
Broadcasting & Recording in the
Justice Huffman was admitted to the Courtroom (Rule 980 Task Force).
State Bar of California in January of
1966 following his graduation with a
J.D. degree from the University of
Southern California.
Appellate Practice Speaker Biographies
Elaine Alexander
Elaine A. Alexander
has
been
the
executive director
of
Appellate
Defenders,
Inc.,
since 1979. ADI
administers
the
system of appointed
representation
on
appeal for the Court
of Appeal in the
Fourth Appellate District. In 1983 she
developed ADI into the first California
appellate
project, which served as the inspiration
and model for a system that consistently
provides quality indigent defense
throughout the state. A 1968 graduate of
Yale Law School, Order of the Coif,
Ms. Alexander has long been active in
the bar and community. She has served
on the Appellate, Criminal Jury
Instruction, and Appellate Indigent
Defense Advisory Committees of the
Judicial Council; been active in the San
Diego County Bar Association; worked
on projects to provide representation in
juvenile court; provided many resources
to attorneys through publications,
lectures, and a comprehensive appellate
practice manual; served on the selection
board for counsel in death penalty
habeas corpus cases going into federal
court; and taught at San Diego law
schools. She has received a number of
awards at local, state, and national
levels for her leadership and service.
Frank Birchak
Frank Birchak is currently the Director
of Training at the San Diego Public Defender’s Office. He is also part of the
Office’s Prop 47 team and has been
dealing with Prop 47 issues since its
passage. He was first licensed in Texas
in 1998 and practiced criminal law and
juvenile delinquency law there until
2004. In 2004, he joined the San Diego
Alternate Public Defender’s Office
where he practiced until being
appointed the Director of Training in
November of 2014.
Gorguinpour worked in family-law and
criminal trial courts in Southern
Mark Brown
California.
He
graduated
from
Mark Brown has been an attorney with
Georgetown University Law Center in
the Orange County Public Defender for
2003 and from UC Berkeley in 2000,
approximately 20 years and is currently
with a degree in Rhetoric.
the manager of the Writs & Appeals
Unit, which includes the Proposition 47
team. He has argued numerous cases in
Al Menaster
the Court of Appeal (many of which
Albert Menaster
resulted in published opinions) and arhas served as a
gued a case in the California Supreme
Deputy
Public
Court.
Defender in Los
Angeles County
since 1973, and
Pat Ford
was
named
Patrick
Morgan
CPDA’s
Ford is a criminal
“Defender of the
defense attorney in
Year” in 1987,
San Diego. He is
and was chosen
president of La Defense Attorney of the year by the LA
Jolla Legal Publica- County Bar Association in 2007. Al
tions, Inc. and has writes books, articles and lectures frebeen writing and quently on a wide range of defense toppublishing
the ics, including computer technology for
California Criminal defense attorneys, juvenile court pracLaw Reporter since 1983. Mr. Ford re- tice, Proposition 115, Three Strikes,
ceived his B.A. from Georgetown Uni- Proposition
36,
Courtroom
versity and J.D. from the University of Evidence and Motion Practice. Al has
San Diego. In addition to the publica- argued before the United States
tion,
Mr.
Ford
has
an Supreme Court and repeatedly before
active appellate practice, writes monthly the California Supreme Court. He has
articles, and occasionally lectures on written and spoken at many programs
criminal law related topics, including for CACJ and CPDA over the years, and
contributions to CACJ’s Forum and has authored amicus briefs with a
Flash.
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
Hassan Gorguinpour
substantive legal articles.
As a member of all
five of the state
appellate
appointment panels, Hassan
Gorguinpour receives
appointments
in
juvenile dependency,
juvenile delinquency,
and criminal appeals
throughout California. In 2009, he received the Paul Bell
Memorial Fellowship from Appellate
Defenders, Inc. He secured a published
reversal in his first and only attempt in
federal court: United States v. Onyesoh.
Before focusing on appeals, Mr.
Appellate Practice Speaker Biographies
Cindi Beth Mishkin
Cindi discovered
criminal appellate
law when she
externed at the
California
Supreme Court for
a semester during
law school. There,
she
assisted
criminal
central
staff
members
prepare
petition
for
review
analyses to be
considered at the court's weekly
Wednesday calendar. After graduation,
she joined the SDAP panel and practiced both criminal appellate and trial
work in San Francisco. In 1995, she began working at Appellate Defenders,
Inc. in San Diego, where she remains.
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. (Prior to joining FDAP,
he had been a “financial district” litigation associate (antitrust, securities,
etc.).)
Brad
has
litigated
appeals and writ proceedings on a wide
range of issues, with emphasis on
homicide issues, jury instructions,
sentencing enhancements, and habeas
corpus practice. He has argued before
both the U.S. and California Supreme
Courts. His leading cases have included
People v. Randle (2005) 35 Cal.4th 987
(where the California Supreme Court
extended
the
Flannel
imperfect
self-defense doctrine to imperfect
defense of others), Hedgpeth v. Pulido
(2008) 555 U.S. 57 (on the standards for
Charles Sevilla
federal habeas review of erroneous
Charles
Sevilla,
theories of liability), and People v.
CACJ
past
Duvall (1994) 9 Cal.4th 464 (on state
President. Chuck is
habeas
standards
for
post-OSC
a former Chief
pleadings and evidentiary hearings).
Deputy State Public
Brad has authored articles on state
Defender,
Chief
habeas
practice,
prosecutorial
Trial Attorney for
misconduct, and Blakely-Cunningham
Federal Defenders
issues, as well as numerous seminar
of San Diego, and
materials for FDAP, CACJ, and other
has been in private
organizations.
He also previously
practice in San
taught "Post-Conviction Remedies" as
Diego since 1983.
an adjunct professor at UC-Hastings
His
publications
School of Law.
include two novels (Wilkes: His Life &
Crimes, Wilkes on Trial). His newest
book, Law and Disorder (2014 WW
Norton), is out Aug. 4th and is a
George Schraer
compilation of the best of Forum’s
George Schraer is more than just Great
Moments
in
Courtroom
another pretty face. He also has very History. Other fictional work includes
nice ankles and received a BA degree in briefing before the appellate courts of
History from U.C. Berkeley, a JD California, the Ninth Circuit and the
degree from UCLA, and an MA degree U.S. Supreme Court.
in Humanities from San Francisco State,
where his oral exam included
presentations on Herodotus’s Histories,
The Manor by Isaac Bashevis Singer,
and Van Gogh’s Starry Night. Please do
not ask him to explain the common
threads running through these works, as
he does not have the intellectual
capacity to do this. 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 14 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, some good, most not so
good. There is nothing about him that
reincarnation won’t cure.
Appellate Practice Seminar Information
Question & Answer
Session
Please submit your questions
for the Justices, by Friday,
September 4, 2015 to:
[email protected]
MCLE and Specialization
Credits
CACJ certifies this activity is
approved for MCLE credit by
the State Bar of California in
the amount of 7.25 hours.
Lunch
Lunch is included in all tuition
rates, except for Law Student
tuition. Law student tuition is
extremely reduced and requires
that lunch be purchased
separately, if desired.
Group Discounts
Groups of 5 or more that preregister together, as a group, by
Friday, September 4, 2015
qualify for a 15% tuition
discount. Only one discount
allowed per registration. Group
discount does not apply to
student and attorney members
0-5 year, as their registration is
already reduced. Discounts
cannot
be
processed
on-line, the registration form
must be completed and faxed to
916.643.1836 or emailed to
[email protected]
Cancellations &
Substitutions
Refunds, less a $30 processing
fee, will be sent for those
cancellations received by 9:00
a.m. Friday, September 4,
2015 . Cancellations received
after this date are not eligible
for a refund. It is possible,
however, to substitute one
person on another’s registration, excluding Patron and Life
Member registrations. Substitutions are permitted for group
registrations.
Syllabus Materials
A digital syllabus will be
emailed to all pre-registered
attendees before the seminar
and serves as confirmation of
your seminar registration. Hard
copies of the syllabus will also
be available for purchase on
site; to reserve your copy
please check the box on the
registration form or send an
email to [email protected] if
you registered on-line.
Location Information
Cal Western School of Law
350 Cedar Street 3rd Floor
San Diego, CA 92101
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& CHARLES R. GARRY LECTURE
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2016 CACJ/CPDA Capital Case Defense Seminar
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CACJ’s Appellate Practice Seminar
September 12, 2015
Pre-Registration Form
Cal Western School of Law
350 Cedar Street 3rd Floor San Diego, CA 92101
For more information, or to register on-line please go to http://www.cacj.org/Seminars/Appellate-Practice.aspx
Registered Attendee Information:
STEP 1
name
firm
»
»
address
city
bar number
date admitted to bar
»
email
»
state
phone (area code)
»
Group Discount:
»
zip
»
»
Pre-Registration Deadline: Friday, September 4, 2015
Tuition will be increased by $20 per category after 5pm Friday, September 4, 2015
CACJ Member
❐
❐
❐
❐
»
»
fax (area code)
Pre-Registration Fees:
STEP 2
»
$
Non-Member
Attorney 5+yrs
Investigator/Expert
Attorney Practicing 0-5 yrs
Law Student
$145.00 ❐ Attorney
$115.00 ❐ Investigator/Expert
$ 60.00 ❐ Law Student
$ 30.00
$250.00
$250.00
$65.00
Registration Total
Groups of five (5) or more from the same office or organization who pre-register AS A GROUP by Monday, September 7th, 2015, are
eligible for a 15% discount. Pre-registration forms must be received together. Group Discounts are not available online nor are they
STEP 3
Additions:
❍ Purchase Hard Copy Syllabus $25.00
❍ Law Student lunch $25.00
STEP 6
STEP 5
Question and Answer Session:
Please submit your questions to the Justices, by Friday, September 4, 2015 to:
STEP 4
available for Onsite Registration. NLDs do not qualify for any additional group discounts as they are heavily discounted already.
[email protected]
Syllabus Total
$
Lunch Total
Become a Member or Renew now:
Attorney in First 2 Years of Practice
$50.00 Public Defender 5+ yrs.
Attorney in 2+ Years to 5 Years of Practice $75.00 Appellate Attorney 5+ yrs.
$195.00 Law Student
Attorney in Private Practice over 5 Years
Investigator/Experts
$140.00
$140.00
$10.00
$90.00
$
Membership Total
Confidentiality Pledge:
This pledge MUST be read and signed before CACJ is able to process your registration!
My signature indicates my criminal law practice is devoted exclusively to the defense.
Signature: _________________________________________ Date: _____________
Payment:
Manual Registration Deadline: Friday, September 4, 2015, 5:00pm
❍ Check enclosed (payable to CACJ)
STEP 7
$
or
Charge my: ❍ Visa
❍ MC
Total
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»
$
Exp.
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California Attorneys for
Criminal Justice
1555 River Park Drive, Suite 105
Sacramento, CA 95815
Phone: (916) 643-1800
Fax: (916) 643-1836
Payment must be included with form