Federalizing Boots-Houston and Merger Arguments
by: Ryan • December 26, 2011 • no comments
In this day and age, where someone gets a manslaughter-type sentence for ID Thefts from an imaginary victim, it becomes increasingly important to federalize as many appellate issues as you can. Doing so increases your client's shot at habeas relief. Today, I want to suggest a resource for federalizing objections to two issues that most attorneys, myself included, have tended to argue under only state law: jury concurrence and merger.
The resource is a petition for cert currently pending before the US Supreme Court. It is here. Whether SCOTUS grants review or not, it lays out the conflicts among the federal circuits and, inevitably, identifies case law that is good for the defense.
I want to stress that jury instructions should be close to first on your to-do list, not last, as is often the case. When we wait until the night before trial - or even mid-trial - to put together our requested instructions, we are more likely to rely on the standard instructions, which are often wrong, and lose potential issues for appeal. When we prioritize jury instructions, it's an opportunity to be creative, it helps shape our arguments, and it gives the appellate attorney issues she wouldn't otherwise have.
A useful discussion of issues related to jury instructions can be found here. Also, if you have a client who is charged as an accomplice in a felony murder case, I strong recommend you check out this post for a discussion of a special jury instruction.
