7th Circuit panel opines practical tips

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The 7th Circuit Court of Appeals has some practical advice for criminal law attorneys who go before federal judges: have handy a copy of federal criminal procedure rules, particularly those involving plea discussions at sentencing, and don't be afraid to correct or point out omissions to a judge.

In a decision from the federal appellate court today, a three-judge panel also has an important practical note for trial judges: give defendants a chance for allocution before sentencing them.

Using both pieces of advice, the court panel affirmed two firearm-related convictions today in U.S.A. v. Ivory Griffin, No. 07-2442, but remanded to U.S. District Judge Allen Sharp in South Bend on grounds that the judge violated Griffin's right to a meaningful allocution by announcing the 146-month prison sentence before allowing the defendant to speak.

All sides agreed that vacating the sentence and remanding for a new sentencing is appropriate, and the 7th Circuit cited caselaw as well as the federal criminal procedure rules in ordering that.

Griffin was arrested in 2002 when state police stopped him for speeding on the Indiana Toll Road and found a sawed-off shotgun and ammunition in his trunk. He later pleaded guilty to charges of possessing an unregistered firearm and possessing a firearm after having been previously convicted of a felony; Judge Allen sentenced him to 146 months imprisonment on both counts.

During the plea colloquy involving Federal Rule of Criminal Procedure 11, the judge did not specifically advise Griffin that he'd have the right to present evidence or compel witness attendance, or that the court had authority to depart from the applicable sentencing guidelines range.

Neither Griffin's attorney nor the government counsel informed the court that it had overlooked some portions of the colloquy, the Circuit Court noted in its decision. They have a professional duty to speak up if the court forgets a portion, the federal court pointed out.

"This is not the first time that we have addressed a challenge to a Rule 11 colloquy when counsel failed at the plea hearing to inform the district court of its omissions," Judge Michael Kanne wrote. "And it is difficult to understand why counsel here did not help the court avoid correctable omissions. Confusion over Rule 11's requirements should not be the reason; (it) is not new, unclear, or even difficult to access. Not only should the counsel for the government, as well as for the defendant, be familiar with Rule 11 before even walking into a plea hearing, but it would also be a good practice for them to have a copy of the Rule handy so they can follow along with the court's colloquy. That way, if the court overlooks one of the Rule's provisions, counsel can bring the omission to the court's attention and avoid any later grief."

Judge Kanne added, "We would like to think that any sentencing judge would not only correct the omissions that he or she made while conducting the colloquy, but would appreciate the opportunity to do so."


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  1. If a class action suit or other manner of retribution is possible, count me in. I have email and voicemail from the man. He colluded with opposing counsel, I am certain. My case was damaged so severely it nearly lost me everything and I am still paying dearly.

  2. There's probably a lot of blame that can be cast around for Indiana Tech's abysmal bar passage rate this last February. The folks who decided that Indiana, a state with roughly 16,000 to 18,000 attorneys, needs a fifth law school need to question the motives that drove their support of this project. Others, who have been "strong supporters" of the law school, should likewise ask themselves why they believe this institution should be supported. Is it because it fills some real need in the state? Or is it, instead, nothing more than a resume builder for those who teach there part-time? And others who make excuses for the students' poor performance, especially those who offer nothing more than conspiracy theories to back up their claims--who are they helping? What evidence do they have to support their posturing? Ultimately, though, like most everything in life, whether one succeeds or fails is entirely within one's own hands. At least one student from Indiana Tech proved this when he/she took and passed the February bar. A second Indiana Tech student proved this when they took the bar in another state and passed. As for the remaining 9 who took the bar and didn't pass (apparently, one of the students successfully appealed his/her original score), it's now up to them (and nobody else) to ensure that they pass on their second attempt. These folks should feel no shame; many currently successful practicing attorneys failed the bar exam on their first try. These same attorneys picked themselves up, dusted themselves off, and got back to the rigorous study needed to ensure they would pass on their second go 'round. This is what the Indiana Tech students who didn't pass the first time need to do. Of course, none of this answers such questions as whether Indiana Tech should be accredited by the ABA, whether the school should keep its doors open, or, most importantly, whether it should have even opened its doors in the first place. Those who promoted the idea of a fifth law school in Indiana need to do a lot of soul-searching regarding their decisions. These same people should never be allowed, again, to have a say about the future of legal education in this state or anywhere else. Indiana already has four law schools. That's probably one more than it really needs. But it's more than enough.

  3. This man Steve Hubbard goes on any online post or forum he can find and tries to push his company. He said court reporters would be obsolete a few years ago, yet here we are. How does he have time to search out every single post about court reporters and even spy in private court reporting forums if his company is so successful???? Dude, get a life. And back to what this post was about, I agree that some national firms cause a huge problem.

  4. rensselaer imdiana is doing same thing to children from the judge to attorney and dfs staff they need to be investigated as well

  5. Sex offenders are victims twice, once when they are molested as kids, and again when they repeat the behavior, you never see money spent on helping them do you. That's why this circle continues