practice book

In 1976, Richard Butts was robbed at knifepoint by four men in the lobby of an apartment building; he was badly beaten and his watch and money were taken. Butts informed a Housing Authority detective that he recognized one of his assailants as a person known to him as “Froggy,” and gave a physical description of the person to the detective. The following day the detective arrested respondent David Barnes, who is known as “Froggy.” Respondent was charged with first- and second-degree robbery, second-degree assault, and third-degree larceny. The prosecution rested primarily upon Butts’ testimony and his identification of respondent. During cross-examination, defense counsel asked Butts whether he had ever undergone psychiatric treatment; however, no offer of proof was made on the substance or relevance of the question after the trial judge sua sponte instructed Butts not to answer. At the close of trial, the trial judge declined to give an instruction on accessorial liability requested by the defense. The jury convicted respondent of first- and second-degree robbery and second-degree assault. The Appellate Division of the Supreme Court of New York, Second Department, assigned Michael Melinger to represent respondent on appeal. Respondent sent Melinger a letter listing several claims that he felt should be raised. Included were claims that Butts’ identification testimony should have been suppressed, that the trial judge improperly excluded psychiatric evidence, and that respondent’s trial counsel was ineffective. Respondent also enclosed a copy of a pro se brief he had written. In a return letter, Melinger accepted some but rejected most of the suggested claims, stating that they would not aid respondent in obtaining a new trial and that they could not be raised on appeal because they were not based on evidence in the record. Melinger then listed seven potential claims of error that he was considering including in his brief, and invited respondent’s “reflections and suggestions” with regard to those seven issues. The record does not reveal any response to this letter. Melinger’s brief to the Appellate Division concentrated on three of the seven points he had raised in his letter to respondent: improper exclusion of psychiatric evidence, failure to suppress Butts’ identification testimony, and improper cross-examination of respondent by the trial judge. In addition, Melinger submitted respondent’s own pro se brief. Thereafter, respondent filed two more pro se briefs, raising three more of the seven issues Melinger had identified. At oral argument, Melinger argued the three points presented in his own brief, but not the arguments raised in the pro se briefs. On May 22, 1978, the Appellate Division affirmed by summary order. The New York Court of Appeals denied leave to appeal. On August 8, 1978, respondent filed a pro se petition for a writ of habeas corpus in the United States District Court for the Eastern District of New York. Respondent raised five claims of error, including ineffective assistance of trial counsel. The District Court held the claims to be without merit and dismissed the petition. The Court of Appeals for the Second Circuit affirmed, and the Supreme Court denied a petition for a writ of certiorari. In 1980, respondent filed two more challenges in state court, including a petition in the New York Court of Appeals for reconsideration of that court’s denial of leave to appeal in which respondent for the first time claimed that his appellate counsel, Melinger, had provided ineffective assistance. The New York Court of Appeals denied the application. Respondent then returned to United States District Court for the second time, with a petition for habeas corpus based on the claim of ineffective assistance by appellate counsel. The District Court concluded that respondent had exhausted his state remedies, but dismissed the petition. A divided panel of the Court of Appeals reversed. The Supreme Court granted certiorari.

Mary Armendariz and Dolores Olague-Rodgers were hired by Foundation Health Psychcare Services, Inc. in July and August of 1995 for positions in the Provider Relations Group and were later promoted to supervisory roles with annual salaries of $38,000. As a condition of their employment, the employees signed application forms and separate arbitration agreements that required binding arbitration of any dispute arising from termination of employment. The arbitration clause provided that the employees' exclusive remedies would be limited to back wages from the date of discharge until the arbitration award and expressly excluded other remedies such as reinstatement and injunctive relief. On June 20, 1996, the employees were informed that their positions were being eliminated and that they were terminated. During their employment, they alleged that supervisors and coworkers engaged in sexually based harassment and discrimination, and they claimed the termination occurred because of their perceived or actual sexual orientation. The employees filed a complaint against the employer and its parent company alleging a cause of action for violation of the FEHA as well as tort and contract claims for wrongful termination, seeking general damages, punitive damages, injunctive relief, and attorney fees and costs. The employer filed a motion to compel arbitration under Code of Civil Procedure section 1281.2, supported by declarations. The trial court denied the motion, concluding that the arbitration agreement was an adhesion contract containing provisions so one-sided as to shock the conscience, including the requirement that only employees arbitrate claims and the limitation of damages to backpay. The Court of Appeal reversed the trial court's order, holding that the damages provision was unconscionable but that the remainder of the agreement should be enforced after severance. The Supreme Court granted review of the case.

In March 1988, John F. DiGiovanni submitted an application to the Connecticut Superior Court for a prejudgment attachment in the amount of $75,000 on Brian K. Doehr's home in Meriden, Connecticut, in conjunction with a civil action for assault and battery that he was seeking to institute against Doehr. DiGiovanni had no pre-existing interest in Doehr's real estate, and the suit did not involve the property. Connecticut law authorized prejudgment attachment of real estate without prior notice or hearing upon verification by oath that there was probable cause to sustain the validity of the plaintiff's claim. DiGiovanni accompanied the application with an affidavit stating that the facts set forth in his complaint were true, that he had been willfully, wantonly and maliciously assaulted by Doehr resulting in a broken left wrist, an ecchymosis to his right eye, and other injuries, and that he had expended sums for medical care and treatment. The affidavit concluded that these facts were sufficient to show probable cause that judgment would be rendered for the plaintiff. On March 17, 1988, the Superior Court judge found probable cause to sustain the validity of the claim and ordered the attachment on Doehr's home to the value of $75,000. The sheriff attached the property on March 21, 1988. Doehr first learned of the attachment after it had been recorded on the land records. He had not yet been served with the complaint. The attachment notice informed Doehr of his right to a hearing to claim that no probable cause existed, to request that the attachment be vacated or modified or a bond substituted, or to claim that some portion of the property was exempt. Doehr filed suit in the United States District Court for the District of Connecticut claiming that the Connecticut statute violated the Due Process Clause of the Fourteenth Amendment. The District Court granted summary judgment upholding the statute. The Court of Appeals for the Second Circuit reversed. The Supreme Court granted certiorari to resolve the conflict of authority regarding the statute's constitutionality.

In 1962 Billy Sol Estes was indicted in Reeves County, Texas, for swindling by inducing farmers to sign chattel mortgages on nonexistent fertilizer tanks and equipment. The case produced massive pretrial publicity totaling 11 volumes of press clippings which had given it national notoriety, prompting a change of venue to Smith County at Tyler, approximately five hundred miles away. The trial was originally set for September 24, 1962. On September 24 and 25, 1962, the trial court conducted hearings on defense motions to bar television, radio, and still photography from the courtroom and to continue the case. At least 12 cameramen were engaged in the courtroom throughout the hearing taking motion and still pictures and televising the proceedings. Cables and wires were snaked across the courtroom floor, three microphones were on the judge's bench and others were beamed at the jury box and the counsel table. It is conceded that the activities of the television crews and news photographers led to considerable disruption of the hearings. These initial hearings were carried live by both radio and television. The court denied the motion to exclude cameras but granted the continuance until October 22, 1962, after which the original jury panel was released. Before the October trial the judge issued an order allowing a booth to be built at the rear of the courtroom for cameras. Live telecasting was prohibited during a great portion of the actual trial. Only the opening and closing arguments of the State, the return of the jury's verdict and its receipt by the trial judge were carried live with sound. Although the order allowed videotapes of the entire proceeding without sound, the cameras operated only intermittently, recording various portions of the trial for broadcast on regularly scheduled newscasts later in the day and evening. Four of the jurors ultimately seated had seen and heard all or part of the broadcasts of the earlier proceedings. The trial itself lasted only three days and ended in Estes's conviction for swindling. The Texas Court of Criminal Appeals affirmed the conviction. The United States Supreme Court granted certiorari.