To Be More Persuasive you Need to Know your Enemy

See - To Be More Persuasive you Need to Know your Enemy





"x x x.

Sun Tzu in The Art of War said:

“It is said that if you know your enemies and know yourself, you will not be imperiled in a hundred battles”

Hopefully your legal practice bears little resemblance to a battlefield (except after the Christmas party), but Sun Tzu had a good point. Strategic “victory” is far more likely with your knowledge of the other participant.

Persuasion in Romance

Remember our budding romantic Michael from Part 1?  He knew Jane’s ring size and preferred type. He took her to their original meeting place, and he knew enough to create a special experience to put her in a position where the outcome he wanted was more likely.

Bob, however, was oblivious to Mary’s obviously stressful job. He failed to identify her bad mood when she got home, and her cut finger. Bob was too busy in his own world to have taken the time to consider Mary’s perspective in the process.

I used our couples as an example for this series because I wanted to make it clear that persuasion is not always a battle, despite me opening with a quote from Art of War.  Sometimes it is “the other side”, but persuasion is more about getting the other participant to want what you want.  To that end, viewing it as a contest is more likely to polarise the participants than it is to unite them.

Put another way: Offence makes people play defence.  Persuasion puts everyone on the same page.

Persuasion in Legal Practice

Persuasion does not take place in a vacuum, and generally nor does legal practice.

Your client is a person. The judge is a person. The lawyer opposite you at the table is a person. Each has a history, a perspective, a point of view. In order to understand how best to persuade them you need to do your best to understand that perspective.

That is easier said than done, of course.

With a client you have an opportunity to understand their background and their motivation. You can ask questions to allow you to properly understand. If it comes to persuading a client, you should be on easy street in terms of understanding their perspective on matters. The only way you can’t, is if you don’t bother trying or your relationship is so poor that they don’t trust you enough to share honestly. Either way it’s not a great sign.

So what about the attorney on the “other side” (I don’t use that phrase in order to assume a contentious matter). Despite many of us trying hard to avoid it (with notable exceptions, some of whom recently appeared during the Super Bowl), lawyers have reputations. Perhaps they are aggressive, passive, intellectual or emotional? Are they a trusted advisor to their clients? Do they have a reputation for brash decisions, considered approaches, sneaky dealings?
These factors all allow you to consider strategy. Is your best avenue of persuasion to get the lawyer on board first, or perhaps it’s better to side step the lawyer and have your client contact theirs to get the deal across the line.

Persuading judges is more complex when it comes to this area. Clearly, judicial decisions will generally fall where the findings of fact and law require, absent some miscarriage of discretion or decision.

I hasten to say that I am not suggesting judges decide cases on anything but their genuine view of the law as it applies.

However, to ignore the persuasive abilities of the advocate in Court would be a disservice to talented advocates.  The quality of the advocate involves, in part, an understanding of the content and manner of argument which, put to a particular Judge in a particular way, will be most well understood, assimilated, and accepted.  It is a not a question of tricks or games, but of communicating the message in the best way.

For example, a message delivered one way to Judge A might be effective, but be less persuasive when it comes to Judge B.  Judge A might take comfort in an appellate decision from Court X, but less so from Court Y. It is that kind of knowledge which, although hard to come by, can greatly assist your advocacy in Court. Experienced advocates will start to obtain this knowledge over the years – if you aren’t one already, hopefully you know some who might be able to give you a bit of a leg up in this area.

So Do your Research

So before your next foray into the world of persuasion, take a few minutes to do your research.  Read a little, use Google, ask a colleague.  It’s not always going to get you ahead, but might give you some context that you didn’t already have.  Use that context to your advantage and your client’s in what you say, how you say it, and your approach to the situation.

Happy Lawyering!

How to Be Persuasive Series

This post is part of a series on how to be persuasive.  Here are the links to the entire series:

• Part 1 – Communication and Visualisation
• Part 2 – Know Your Enemy
• Part 3 – Story Telling and Letting Go of Logic
• x x x."

PRESUMPTION OF GOOD FAITH

Good faith is always presumed under the Rules of Evidence, especially in respect of the actions of public officials, who, under the Rules of Evidence, are entitled to the PRESUMPTION OF REGULARITY IN THE PERFORMANCE OF PUBLIC DUTY. 

In the case of Heirs of Severa Gregorio vs. Court of Appeals, et al, G. R. No. 117609, December 19, 1998, the Supreme Court held that “it is axiomatic that good faith is always presumed unless convincing evidence to the contrary is adduced”; that “it is incumbent upon the party alleging bad faith to sufficiently prove such allegation”; that “absent enough proof thereof, the presumption of good faith prevails”; that “without a clear and persuasive substantiation of bad faith, the presumption of good faith in favor of respondents stands”. 

In the case of FRANCISCO M. LECAROZ, et. al. vs. SANDIGANBAYAN, et. al., G.R. No. 130872, March 25, 1999, it was held that “the rule is that any mistake on a doubtful or difficult question of law may be the basis of good faith”; that “an erroneous interpretation of the meaning of the provisions of an ordinance (or a law or an administrative procedure) does not amount to bad faith”; that “public officials may not be liable for damages in the discharge of their official functions absent any bad faith”; and that “under the law on public officers, acts done in the performance of official duty are protected by the presumption of good faith.”

In the case of ALBERT S. DELA PEÑA vs. ILUMINADO R. HUELMA, A.M. No. P-06-2218, Aug. 15, 2006, it was held that “in administrative proceedings, the burden of proof that the respondent committed the act complained of rests on the complainant”; that “the complainant must be able to show this by substantial evidence, or such relevant evidence as a reasonable mind might accept as adequate to support a conclusion, otherwise, the complaint must be dismissed”; that the complainant “in his complaint relied on too many assumptions unsupported by evidence”.

In the case of People vs. De Guzman, GR 106025, Feb. 9, 1994, it was held that “the presumption is that an official act or duty has been regularly performed”; that the reasons behind such a presumption are as follows: 

(1) Innocence, and not wrong-doing, is presumed. 

(2) Good faith is presumed; 

(3) Presumption that an official oath will not be violated;

(4) The republican system of government cannot survive unless a certain trust and confidence is reposed in each government department or agent.

The aforecited case further held that the presumption of regularity “may be rebutted by affirmative evidence of irregularity or failure to perform duty”; that the “presumption prevails until it is overcome by clear and convincing evidence to the contrary”; that “if not rebutted, it is conclusive”; and that “in case of doubt, statutory construction is in favor of the lawfulness of the act of a public official”.

Prejudicial question

RICARDO QUIAMBAO vs. HON. ADRIANO OSORIO, ZENAIDA GAZA BUENSUCERO, JUSTINA GAZA BERNARDO, and FELIPE GAZA and LAND AUTHORITY, G.R. No. L-48157 March 16, 1988;

“x x x.

The instant controversy boils down to the sole question of whether or not the administrative case between the private parties involving the lot subject matter of the ejectment case constitutes a prejudicial question which would operate as a bar to said ejectment case.

A prejudicial question is understood in law to be that which arises in a case the resolution of which is a logical antecedent of the issue involved in said case and the cognizance of which pertains to another tribunal. 1 The doctrine of prejudicial question comes into play generally in a situation where civil and criminal actions are pending and the issues involved in both cases are similar or so closely related that an issue must be pre-emptively resolved in the civil case before the criminal action can proceed. Thus, the existence of a prejudicial question in a civil case is alleged in the criminal case to cause the suspension of the latter pending final determination of the former.

The essential elements of a prejudicial question as provided under Section 5, Rule 111 of the Revised Rules of Court are: [a] the civil action involves an issue similar or intimately related to the issue in the criminal action; and [b] the resolution of such issue determines whether or not the criminal action may proceed.

The actions involved in the case at bar being respectively civil and administrative in character, it is obvious that technically, there is no prejudicial question to speak of. Equally apparent, however, is the intimate correlation between said two [2] proceedings, stemming from the fact that the right of private respondents to eject petitioner from the disputed portion depends primarily on the resolution of the pending administrative case. For while it may be true that private respondents had prior possession of the lot in question, at the time of the institution of the ejectment case, such right of possession had been terminated, or at the very least, suspended by the cancellation by the Land Authority of the Agreement to Sell executed in their favor. Whether or not private respondents can continue to exercise their right of possession is but a necessary, logical consequence of the issue involved in the pending administrative case assailing the validity of the cancellation of the Agreement to Sell and the subsequent award of the disputed portion to petitioner. If the cancellation of the Agreement to Sell and the subsequent award to petitioner are voided, then private respondents would have every right to eject petitioner from the disputed area. Otherwise, private respondent's light of possession is lost and so would their right to eject petitioner from said portion.

Faced with these distinct possibilities, the more prudent course for the trial court to have taken is to hold the ejectment proceedings in abeyance until after a determination of the administrative case. Indeed, logic and pragmatism, if not jurisprudence, dictate such move. To allow the parties to undergo trial notwithstanding the possibility of petitioner's right of possession being upheld in the pending administrative case is to needlessly require not only the parties but the court as well to expend time, effort and money in what may turn out to be a sheer exercise in futility. Thus, 1 Am Jur 2d tells us:

The court in which an action is pending may, in the exercise of a sound discretion, upon proper application for a stay of that action, hold the action in abeyance to abide the outcome of another pending in another court, especially where the parties and the issues are the same, for there is power inherent in every court to control the disposition of causes on its dockets with economy of time and effort for itself, for counsel, and for litigants. Where the rights parties to the second action cannot be properly determined until the questions raised in the first action are settled the second action should be stayed. 2

While this rule is properly applicable to instances involving two [2] court actions, the existence in the instant case of the same considerations of Identity of parties and issues, economy of time and effort for the court, the counsels and the parties as well as the need to resolve the parties' right of possession before the ejectment case may be properly determined, justifies the rule's analogous application to the case at bar.

Fortich-Celdran, et al. vs. Celdran, et al., 19 SCRA 502, provides another analogous situation. In sustaining the assailed order of the then Court of First Instance of Misamis Oriental ordering the suspension of the criminal case for falsification of public document against several persons, among them the subscribing officer Santiago Catane until the civil case involving the issue of the genuineness of the alleged forged document shall have been decided, this Court cited as a reason therefor its own action on the administrative charges against said Santiago Catane, as follows:

It should be mentioned here also that an administrative case filed in this Court against Santiago Catane upon the same charge was held by Us in abeyance, thus:

"As it appears that the genuineness of the document allegedly forged by respondent attorneys in Administrative Case No. 77 [Richard Ignacio Celdran vs. Santiago Catane, etc., et al.] is necessarily involved in Civil Case No. R-3397 of the Cebu Court of First Instance, action on the herein complaint is withheld until that litigation has finally been decided. Complainant Celdran shall inform the Court about such decision." 3

If a pending civil case may be considered to be in the nature of a prejudicial question to an administrative case, We see no reason why the reverse may not be so considered in the proper case, such as in the petition at bar. Finally, events occuring during the pendency of this petition attest to the wisdom of the conclusion herein reached. For in the Manifestation filed by counsel for petitioner, it was stated that the intervenor Land Authority which later became the Department of Agrarian Reform had promulgated a decision in the administrative case, L.A. Case No. 968 affirming the cancellation of Agreement to Sell No. 3482 issued in favor of private respondents. With this development, the folly of allowing the ejectment case to proceed is too evident to need further elaboration.

X x x.”

Special Report: Egypt locks up lawyers in Islamist fight | Reuters

See - Special Report: Egypt locks up lawyers in Islamist fight | Reuters


"x x x.

In all, more than 200 lawyers are behind bars in Egypt for defending the government's Islamist opponents, according to attorneys and human rights groups. They say the number of arrests is far higher than during the rule of President Hosni Mubarak, who imposed an emergency law allowing individuals to be imprisoned for any length of time. Even under Mubarak, lawyers rarely faced jail and were free to defend his fiercest opponents, attorneys say.

A senior Ministry of Justice official confirmed that a large number of lawyers are being held on charges connected to the Muslim Brotherhood. He said the number is "probably up to 10 times" the number held under Mubarak: "They are locked up in accordance with the law and accusations from the prosecution."

But attorneys and rights activists say Sisi and his government are arresting lawyers to intimidate them into avoiding political cases. Egypt's justice system is meant to be independent of politics, but activists say it is being directed by the government.
"The authorities are attacking the legal profession so that their opponents have no-one to defend them," said veteran lawyer Montasser al-Zayat, who heads a campaign for the release of detained lawyers. Zayat, himself a former jihadist, has been defending Islamists for decades - including those put on military show trials during an insurgency in the 1990s. A burly man with a white beard, he helped mediate a truce in 1997 that ended years of militant violence against the state. He says things now are worse than he has seen them. "I've never been so scared."

In June, lawyers launched a general strike after a one of them was assaulted by a police officer inside a police station in the town of Damietta. The lawyer was pressing the police to move his client's case along, and in the ensuing argument one of the police hit him with his shoe - a particularly insulting act in the Arab world. Sisi apologized "to every Egyptian citizen" for the incident and urged the police and other government bodies to be aware that "they are dealing with humans."

The government says it is not systematically cracking down on lawyers. Ayman Hilmy, a spokesman at Egypt's Interior Ministry, said, "There is no crisis or problem between the police and the lawyers. All sides work according to the law." He said the Interior Minister has repeatedly said the police respect the judiciary and lawyers and that police brutality will be punished through the courts.

x x x."

Lawyers call for statutory protection of lawyer-client communications - The Law Society

See - Lawyers call for statutory protection of lawyer-client communications - The Law Society





"x x x.

The legal professional bodies have issued a position paper on lawyer-client confidentiality in the context of the debate over the balance between privacy and security in the use of investigatory powers. These powers are used by law enforcement and the security and intelligence agencies and include interception of communications, covert surveillance, undercover police officers and the acquisition of communications data.

The professional bodies argue that:

• Legal professional privilege is a vital principle of the administration of justice. It is the mark of a democratic society that citizens can consult a legal adviser in absolute confidence that the information they exchange will not be disclosed without the client's authority. There are safeguards to prevent the abuse of legal professional privilege for criminal purposes.
• The current legal framework for the exercise of investigatory powers is not fit for purpose. Next month's Investigatory Powers Bill is an opportunity to consider and debate a new law.
• The new law should expressly protect legal professional privilege from the activities of public authorities seeking to use investigatory powers, including the acquisition of communications data.
• The new law should make clear that the deliberate targeting and use of legally privileged information is unlawful.
• Protecting legally privileged communications would not pose any risk to legitimate investigations because legal professional privilege does not apply where the lawyer-client relationship is being abused for a criminal purpose.
• More generally, the new law should include a system of prior judicial authorisation for all covert information-gathering by a public authority.
• Bulk interception of communications or retention of communications data is questionable in a democratic society, but if such powers are approved by parliament, there should be special provisions to protect privileged communications between lawyers and their clients.
• x x x."

European lawyers call for release of China’s human rights defenders | Solicitors Journal

See - European lawyers call for release of China’s human rights defenders | Solicitors Journal





"x x x.

China's president 'must show respect' for the standards of international law

The Federation of European Bar Associations (FBE) has expressed grave concerns over lawyers that have been detained and threatened by the Chinese state.

In July, approximately 225 lawyers, staff, human rights defenders, and their family members were arrested in China. Approximately 30 are either still detained or missing.

In the days following the arrests, the incarcerated lawyers were denounced in state media as a 'criminal gang'.

One high-profile arrestee was Wang Yu of law firm Fengrui, who disappeared after sending friends a text message saying her internet connection and electricity had been cut off and that people were trying to break into her home.

Wang was held on suspicion of inciting subversion after taking on a case involving sexual assault at a school in Wannying City. She was one of six lawyers at the firm to be detained by the Chinese authorities.

The FBE has since written to China's president, Xi Jinping, calling for the release of those in detention and raising concerns as to how the arrests were carried out. The group claimed the Chinese authorities ignored legal procedure and gave no reasons as to why the arrests were made.

In addition, the FBE says the arrests were in violation of international human rights standards such as the right to a fair trial, freedom of expression, and to safeguards for those representing accused people.

Nazario Oleaga, a Spanish lawyer and FBE president, said: 'The international legal community cannot stand by while their colleagues in China, together with their families, staff, and other human rights defenders are harassed simply for doing their work, defending human rights, and providing access to justice.

'The Federation calls on president Xi Jinping to show respect for the standards of international law and for the immediate release of those detained.'

Ahead of a five-day state visit, the Chinese ambassador to the UK suggested his president would not respond well if he was reprimanded over alleged human rights abuses.

During his tour of the UK, however, Xi Jinping admitted that his country had 'room for improvement' on the subject of its human rights record.

The state visit resulted in protests in London aimed at drawing attention to the situation in China.

Tiananmen Square survivor Dr Shao Jiang, an outspoken critic of Xi Jinping's regime, called on the UK government to criticise China's human rights violations.

Jiang told IBTimes UK that David Cameron should speak out or the UK government would 'damage their human rights standards and undermine democracy'.

The Chinese democracy activist was later arrested by UK police at his family home after standing in the road and holding up protest banners.

John van der Luit-Drummond is deputy editor for Solicitors Journaljohn.vanderluit@solicitorsjournal.co.uk | @JvdLD

x x x."

5 Malpractice Pitfalls New Lawyers Can Avoid - Strategist

See - 5 Malpractice Pitfalls New Lawyers Can Avoid - Strategist

"xxx.

Thankfully, with a little planning, you can avoid some of the most common malpractice pitfalls facing new attorneys and solo practices.

1. Client Money Is Client Money, Not Your Money

Accounting mistakes and mishandling of client funds are a sure way to end up in ethics trouble. If you can't make your firm's utility payments, it's better to let the lights go out than dip into your clients' funds. After all, it's much easier to pay a late bill than it is to recover from disbarment. And there's simply no way to "borrow" from a client trust account without violating your professional responsibility. Similarly, ethics rules are very clear that attorneys can't comingle client funds.

Make sure you have a clear system to deposit all client funds into separate trust accounts. Institute accounting procedures so you can easily find out what money is where when. Ensure that you never use funds from one client to cover costs not related to their matters.

2. Take Care of Your Calendar

Administrative errors are responsible for almost 30 percent of all malpractice claims. If you're not properly managing your calendar from the get go, it can be easy to get overwhelmed by deadlines, conflicting responsibilities, and simple clerical errors. New firms should set up a strong, centralized calendaring system. It's best to have one person input deadlines and reminders in a centralized calendar, with a second pair of eyes to double check for accuracy.

3. Think Twice About Suing Clients

Is one of your clients refusing to pay their bill? You're a lawyer and know just what to do. Sue 'em! Right?

Probably not. When lawyers sue for unpaid bills, they're almost always met with a malpractice counterclaim. Many quickly drop their suits in order to get rid of the malpractice charges. Consider pursuing alternative channels, like arbitration, instead.

4. Be Careful About Shared Space

Sure, you're not incompetent, but what about the attorney across the hall? If you share office space, but not a practice, you could still get in hot water for another lawyer's errors.

If you do share an office with another solo lawyer or separate practice, avoid confidentiality and conflicts of interest by making sure that client records are kept separate and that shared staff are screened for potential conflicts. Clients should be away that the attorneys in the office aren't in a shared practice, lest you get caught by "partnership by estoppels." Finally, make sure that any referrals you give to office mates don't contradict your jurisdiction's referral rules.

5. Don't Forget the Insurance

Many jurisdictions require legal malpractice insurance, but you should pick some up even if yours does not. Check with your state and local bar associations for malpractice insurers in your area and don't be afraid to shop around. The best type of malpractice insurance for your firm (and its cost) will depend on a variety of factors, including your practice area, your disciplinary record, and your local market. If you're lucky, you'll never need to use it. But if you do, you'll be glad it's there.

Related Resources:

• Hey, Legal Malpractice Insurers -- How 'Bout a Little Help to Us Solos? (My Shingle)
• How to Buy the Malpractice Insurance That You Need (FindLaw's Strategist)
• Will it Soon be Malpractice Not to be Social Media Savvy? (FindLaw's Strategist)
• Don't Overlook Your Most Valuable Asset: Your Law Firm Brand (FindLaw's Strategist)

x x x."

Sandiganbayan; 37 judges, lawyers included in shortlists for 6 anti-graft court seats | Inquirer News

See - 37 judges, lawyers included in shortlists for 6 anti-graft court seats | Inquirer News

"x x x.

MANILA, Philippines — The Judicial and Bar Council has nominated 37 judges and lawyers for six seats in the two newly created divisions of the anti-graft court Sandiganbayan.

The seven-member council, chaired by Chief Justice Ma. Lourdes Sereno, conducted its vote on Monday and came out with six shortlists from a total of 90 applicants for the position of associate justice of the Sandiganbayan.

In the first shortlist for the position of the 16th justice nominated were regional trial court Judges Philip Aguinaldo, Reynaldo Alhambra, Danilo Cruz, Benjamin Pozon, Danilo Sandoval and Salvador Timbang Jr.

For the 17th post, nominated were judges Maryann Corpuz – Mañalac, Ma. Theresa Mendoza-Arcega and Andres Soriano, assistant solicitor general Ma. Antonia Edita Dizon and Senate blue ribbon committee secretary Rodolfo Noel Quimbo.

For the 18th post, nominated were judges Celso Baguio, Ma. Teresa De Guzman-Alvarez, Bernelito Fernandez, Elvira Panganiban and Fernando Sagun Jr. and Chief Justice Ma. Lourdes Sereno’s staff Zaldy Trespeses.

For the 19th post, the nominees were judges Frances Guanzon, Marissa Macaraig -Guillen, Vilma Pauig and Ruben Reynaldo Roxas, assistant solicitor general Renan Ramos and Malacañang undersecretary Reynaldo Cruz.

In the fifth shortlist for the 20th post are judges Perpetua Atal-Paño, Thelma Bunyi-Medina, Luisito Cortez, Geraldine Fiel-Macaraig and Angeline Mary Quimpo-Sale; Office of the Ombudsman director Bayani Jacinto; and assistant solicitor genera Karl Miranda.

The final shortlist for the 21st post includes judges Wilhelmina Jorge-Wagan, Geraldine Faith Econg, Rosanna Fe Romero-Maglaya, Merianthe Pacita Zuraek and Victoria Fernandez-Bernardo and Malacañang undersecretary for special concerns Michael Frederick Musngi.

President Aquino has 90 days to take his pick from each shortlist. Since he assumed presidency, Aquino appointed only six out of the current 15 justices. With another six appointees, his appointees would be the majority in the 21-member tribunal.

The vacancies emanated from Republic Act No. 10660, which was signed by Aquino last April. The law aims to strengthen the functional and structural organization of the Sandiganbayan, which resolves cases of corruption against government officials.

The court originally had three divisions until it expanded to five divisions with three members each in March 1995. It currently has 15 justices.

Under RA 10660, there will be seven divisions with three members each or a total of 21 justices.

The JBC is a constitutional body mandated to screen nominees for vacant posts in the judiciary and the Office of the Ombudsman.

The council is chaired by Sereno, with Senator Aquilino Pimentel III and Justice Secretary Benjamin Caguioa as ex-officio members. The regular members are retired Supreme Court justice Angelina Sandoval-Gutierrez, ; lawyer Jose Mejia, who represents the academe; retired appeals justice Aurora Santiago-Lagman, representing the private sector; and lawyer Milagros Fernan-Cayosa representing the Integrated Bar of the Philippines. SFM

x x x."

Read more: http://newsinfo.inquirer.net/734573/37-judges-lawyers-included-in-shortlists-for-6-anti-graft-court-seats#ixzz3pgwHgTWu

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Litigation Financing 'Pumps Up' Mass Tort Advertising, Litigation | Institute for Legal Reform

See - Litigation Financing 'Pumps Up' Mass Tort Advertising, Litigation | Institute for Legal Reform



"x x x.

Forbes Daniel Fisher reports that “easy” litigation financing is funding aggressive plaintiff lawyer advertising that is spurring a surge in mass tort litigation — and cites ILR throughout his report.

ILR “may have their best example” that easy financing spurs more litigation “in pelvic mesh litigation, where hedge funds and specialized litigation finance firms have bankrolled a wave of television advertising and online marketing that has helped stimulate tens of thousands of lawsuits against Boston Scientific, Johnson & Johnson and others.”

$45 million worth of plaintiffs’ lawyer advertising in the first ten months of 2014, combined with telemarketing, helped generate 24,000 such lawsuits against Johnson & Johnson — including many “by women who may have not even received a J&J device."

“One firm active in the pelvic implant litigation market, Houston-based AkinMears, spent more than $25 million on television advertising last year, the most of any U.S. law firm, according to a forthcoming study by the ILR,” reports Fisher.

“Much of the money is coming from hedge funds and litigation-finance firms like Gerchen Keller, the Chicago company that an ex-employee of AkinMears says lent the law firm $90 million to advertise and acquire interests in some 14,000 pelvic-mesh lawsuits.”

Read the full story here.
x x x."

Supreme Court Probes Protections in Death-Penalty Cases - WSJ

See - Supreme Court Probes Protections in Death-Penalty Cases - WSJ

"x x x.

In the three cases before the justices, the Kansas Supreme Court found juries may have discounted mitigating circumstances, such as a history of being abused or mental issues. In each instance, trial judges didn’t tell juries that such factors, which can weigh against the death penalty, don’t require proof beyond a reasonable doubt to be accepted. Prosecutors, however, must prove factors supporting an execution to that strict standard.

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The Kansas court also found that two brothers tried and sentenced together for multiple murders, rapes and other crimes should have had separate sentencing hearings.

The Kansas attorney general argued the state-level rulings should be reversed because they provided the defendants rights beyond what is required by the U.S. Constitution.

“What a wonderful system we’ve created,” said Justice Sonia Sotomayor. “Even when a state court is wrong in convicting somebody, so long as they are reasonably wrong, we uphold them.”

Justice Antonin Scalia suggested the Kansas Supreme Court, whose justices periodically face retention elections, sought to disguise its own opposition to the death penalty by cloaking its rulings in the U.S. Constitution.

“Kansans, unlike our Justice [Stephen] Breyer, do not think the death penalty is unconstitutional and indeed very much favor it,” he said.

Kansas last conducted an execution in 1965, and the state currently holds nine condemned men. Kansas Attorney General Derek Schmidt said the jury-instruction issue could affect six of them.

Several justices on Wednesday appeared convinced that the Eighth Amendment, which forbids “cruel and unusual punishments,” doesn’t mandate the instruction on mitigating circumstances. Some liberal justices, noting the Kansas judiciary has adopted new jury instructions to clarify the mitigating-circumstances rule, suggested it may be required under state law.

The joint-trial issue proved more vexing. Two brothers, Reginald and Jonathan Carr, were convicted of a crime spree involving robbery, sexual assault and culminating in mass murder.

At a joint sentencing, Jonathan’s lawyer argued he had been corrupted by his older brother. That argument had the effect of prejudiced the jury against Reginald, Reginald’s attorney Frederick Liu told the justices.

An attorney for Jonathan, Jeffrey Green, said his client also was hurt by the sentencing process, as he was seated by Reginald, allowing “prosecutors to repeatedly paint them with the same brush.”

The case raised an apparent contradiction in death-penalty doctrine. While each defendant is entitled to an individualized sentence determination, arbitrary sentencing is forbidden.

Justice Department attorney Rachel Kovner said joint hearings in such instances “prevent arbitrary disparities that may arise when two juries reach inconsistent conclusions about the common facts of a single crime.”

Decisions are expected before July.

x x x."

A long-fruitless struggle to require the U.S. Supreme Court to broadcast hearings

See - Congressmen Rally to Pry Open Supreme Court to Cameras - US News

"x x x.

Members of Congress on Thursday resumed a long-fruitless struggle to require the U.S. Supreme Court to broadcast hearings by holding a press conference on the court's steps.

Reform-minded lawmakers said at their kickoff press conference for the Eyes on the Courts Act that the court is wrong to ban video recordings, and that transcripts and audio recordings do not sufficiently inform and engage the public.

The new and relatively straightforward bill would require the high court and federal appeals courts to allow video recordings with rare exceptions. Guidelines would be established and judges could block broadcasts if they deem doing so would be in the interest of justice.

“These are important parts of our history,” said Rep. Mike Quigley, D-Ill., noting overwhelming public support for airing Supreme Court hearings on TV.

A Gallup poll in 2011 found 72 percent of Americans favor the change. McLaughlin and Associates found 74 percent support last year.

“How is it that we can keep up with the Kardashians, but we cannot keep up with the Supreme Court?” joked Rep. Jerrold Nadler, D-N.Y.

Rep. Gerry Connolly, D-Va., sponsor of a similar bill called the Cameras in the Courtroom Act, was more indignant.

“This building behind us does not house the Oracle of Delphi,” he fumed, saying what he saw as an “antiquated druidic approach” to cameras by justices is “simply not appropriate for a contemporary democracy.”

Connolly alone among the lawmakers was receptive to the idea of civil disobedience by members of the public to help publicize the issue.

Last year and again in January, activists posted secretly recorded footage of Supreme Court hearings online. Before that, only two photos were believed to exist of the court in session, both taken in the 1930s, University of Georgia law professor Sonja West wrote in 2012.

“We have a long tradition of civil disobedience in America,” Connolly said, and the Supreme Court’s camera ban “invites civil disobedience … especially given the technology that now exists.”

It’s “very easy,” Connolly said, to sneak a camera into the courtroom and violate the ban.

The press conference also featured representatives from the Reporters Committee for Freedom of the Press and the group Fix the Court. 

In public statements, justices have expressed concern that broadcasting hearings might lead to grandstanding by attorneys or confusion among the public – worries dismissed by reform backers.

After the press conference, Connolly told U.S. News he personally has no plans to commit an act of civil disobedience inside the court, but that he believes justices “have brought it on themselves” if such activism happens with a policy that “smacks of elitism and condescension.”

Members of Congress, he added, “violate our laws all the time” and take calculated risks in doing so.

“You take your chances when you do it,” he said.

x x x."

CatholicHerald.co.uk » Bishop backs Conservatives over reform of prisons

See - CatholicHerald.co.uk » Bishop backs Conservatives over reform of prisons

"x x x.

In his conference speech this week David Cameron said prison reform was one of his Government’s key priorities.

He said: “The system is still not working. Half of criminals offend within a year of being released. Nearly half go into prison with no qualifications; many come out with none either.

“And all the problems that may have led them to that life – drug addiction, mental health problems, childhood abuse – remain unchanged.”

Cameron added: “We have got to get away from the sterile lock-em-up or let-em-out debate, and get smart about this. When prisoners are in jail, we have their full attention for months at a time – so let’s treat their problems, educate them, put them to work.”

The Prime Minister said prisons would be a “big area of social reform in the next five years”.

Michael Gove, the Justice Secretary, has previously said “we don’t devote nearly enough time to educating” prisoners and giving them the skills they need to succeed on the outside.

x x x."

As a Start to Bill de Blasio's NYC Prison Reform, Reams of Jails Data Will Be Made Public - CityLab

See - As a Start to Bill de Blasio's NYC Prison Reform, Reams of Jails Data Will Be Made Public - CityLab

"x x x.

Wednesday, NYC Mayor Bill de Blasio signed into law legislation aimed at helping correct these bail problems, providing inmates a bill of rights for when they’re detained and addressing other problems that lead to overstuffing city jails with poor people of color.“We can better understand what polices we need to change if we have the data to understand what’s going on in the system.”

The omnibus package of criminal justice reform bills will require the city to produce better accounting of how many people are in city jails, what they’re average incarceration time is while waiting for trial, the average bail amounts imposed on defendants, and a whole host of other data points on incarceration. Under the new legislation, the city will have to release reports quarterly and semi-annually to the public—much of it from data now sheltered within the city’s Department of Corrections.

“This is bringing sunshine to information that is already being looked at internally, but is better off being public data,” New York City council member Helen Rosenthal tells CityLab. “We can better understand what polices we need to change if we have the data to understand what’s going on in the system.”

x x x."

PH - HK MUTUAL LEGAL ASSISTANCE IN CRIMINAL MATTERS (PHILIPPINES) ORDER; MUTUAL LEGAL ASSISTANCE IN CRIMINAL MATTERS ORDINANCE

see - Cap 525K Sched 1 (MUTUAL LEGAL ASSISTANCE IN CRIMINAL MATTERS (PHILIPPINES) ORDER; MUTUAL LEGAL ASSISTANCE IN CRIMINAL MATTERS ORDINANCE)

AGREEMENT BETWEEN 

THE GOVERNMENT OF THE HONG KONG 

SPECIAL ADMINISTRATIVE REGION 

OF THE PEOPLE'S REPUBLIC OF CHINA 

AND 

THE GOVERNMENT OF THE 
REPUBLIC OF THE PHILIPPINES 

CONCERNING 

MUTUAL LEGAL ASSISTANCE 
IN CRIMINAL MATTERS

The Government of the Hong Kong Special Administrative Region of the People's Republic of China ("the Hong Kong Special Administrative Region"), having been duly authorized by the Central People's Government of the People's Republic of China, and the Government of the Republic of the Philippines;

Desiring to improve the effectiveness of law enforcement of both Parties in the investigation, prosecution and suppression of crimes such as public corruption and narcotics trafficking;

Have agreed as follows:

ARTICLE I

SCOPE OF ASSISTANCE

(1) The Parties shall provide, in accordance with the provisions of this Agreement, mutual assistance in the investigation and prosecution of criminal offences and in proceedings related to criminal matters.

(2) Assistance shall include:(a) identifying and locating persons;

(b) serving of documents;

(c) the obtaining of evidence, articles or documents;

(d) executing requests for search and seizure;

(e) facilitating the personal appearance of witnesses;

(f) effecting the temporary transfer of persons in custody to appear as witnesses;

(g) obtaining production of judicial or official records;

(h) tracing, restraining, forfeiting and confiscating the proceeds and instrumentalities of criminal activities and recovering pecuniary penalties in respect of offences including restraining of dealings in property or the freezing of assets alleged to be related to a criminal matter;

(i) providing information, documents and records;

(j) delivery of property, including lending of exhibits; and

(k) other assistance consistent with the objects of this Agreement which is not inconsistent with the law of the Requested Party.

(3) For the purposes of this Agreement, criminal matter includes:(a) a criminal matter relating to revenue (including taxation and customs duties);

(b) a criminal matter relating to graft and corruption, unlawfully acquired or acquiring property, bribery, frauds against the public treasury, or misappropriation or fraudulent conversion of public funds or property;

(c) a matter relating to the forfeiture or confiscation of property in respect of an offence;

(d) a matter relating to the imposition or recovery of a pecuniary penalty in respect of an offence; and

(e) a matter relating to the restraining of dealings in property, or the freezing of assets that may be forfeited, confiscated or used to satisfy a pecuniary penalty imposed in respect of an offence.

(4) Assistance under this Agreement may be granted in connection with offences against a law related to taxation, customs duties, foreign exchange control or other revenue matters but not in connection with non-criminal proceedings relating thereto.

(5) This Agreement is intended solely for mutual assistance between the Parties. The provisions of this Agreement shall not give rise to any right on the part of any private person to obtain, suppress or exclude any evidence or to impede the execution of a request.

ARTICLE II

CENTRAL AUTHORITY

(1) Each Party shall establish a Central Authority.

(2) The Central Authority for the Hong Kong Special Administrative Region shall be the Secretary for Justice or his duly authorized officer. The Central Authority of the Republic of the Philippines shall be the Secretary of Justice or his duly authorized officer.

(3) Requests under this Agreement shall be made by the Central Authority of the Requesting Party to the Central Authority of the Requested Party.

ARTICLE III

OTHER ASSISTANCE

This Agreement shall not affect subsisting obligations between the Parties pursuant to other agreements, arrangements or practices or otherwise nor prevent the Parties from providing assistance pursuant to such agreements, arrangements, or practices.

ARTICLE IV

LIMITATIONS ON COMPLIANCE

(1) The Requested Party shall refuse assistance if:(a) the request for assistance impairs the sovereignty, security or public order of the Republic of the Philippines or, in the case of the Hong Kong Special Administrative Region, the People's Republic of China;

(b) the request for assistance relates to an offence of a political character;

(c) the request for assistance relates to an offence only under military law;(d) there are substantial grounds for believing that the request for assistance will result in a person being prejudiced on account of his race, religion, sex, nationality or political opinions;

(e) the request for assistance relates to the prosecution of a person for an offence in respect of which the person has been acquitted or has served the sentence imposed or has been pardoned in the Requested Party;

(f) it is of the opinion that the granting of the request would seriously impair its essential interests;

(g) the acts or omissions alleged to constitute the offence would not, if they had taken place within the jurisdiction of the Requested Party, have constituted an offence.

(2) The Requested Party may refuse assistance if:(a) the request for assistance relates to the prosecution of a person who could no longer be prosecuted by reason of lapse of time or for any other reason if the offence had been committed within the jurisdiction of the Requested Party;

(b) the Requesting Party cannot comply with any conditions relating to confidentiality or limitation as to the use of material provided;

(c) the request for assistance relates to the prosecution or punishment of a person for an offence which is committed outside the area under the jurisdiction of the Requesting Party and the law of the Requested Party does not provide for the punishment of an offence committed in similar circumstances; or

(d) the provision of the assistance sought could prejudice an investigation or proceeding in the Requested Party, or endanger the safety of any person or impose an excessive burden on the resources of that Party.

ARTICLE V

REQUESTS

(1) Requests shall be made in writing except in urgent cases. In urgent cases, requests may be made orally, but shall be confirmed in writing as soon as practicable.

(2) Requests for assistance shall include:(a) the name of the authority on behalf of which the request is made;

(b) a description of the purpose of the request and the nature of the assistance requested;

(c) a description of the nature of the investigation, prosecution, offence or criminal matter and whether or not proceedings have been instituted;

(d) the court order, if any, or a certified copy thereof, sought to be enforced and a statement to the effect that it is a final order;

(e) where proceedings have been instituted, details of the proceedings;

(f) a summary of the relevant facts and laws;

(g) any requirements for confidentiality;

(h) details of any particular procedure the Requesting Party wishes to be followed; and

(i) details of the period within which the request should be complied with.

(3) Requests for assistance, to the extent necessary and insofar as possible, shall also include:(a) the identity, nationality and whereabouts of the person or persons who are the subject of the investigation or proceedings;

(b) a statement as to whether sworn or affirmed evidence or statements are required;

(c) a description of the information, documents, records or articles of evidence to be produced as well as a description of the appropriate person to be asked to produce them and, to the extent not otherwise provided for, the form in which they should be reproduced and authenticated;

(d) information as the allowances and expenses to which a person appearing in the Requesting Party will be entitled; and

(e) a description of any property sought to be restrained, frozen or forfeited.

(4) All documents submitted in support of a request shall be in, or accompanied by a translation into, an official language of the Requested Party.

ARTICLE VI

EXECUTION OF REQUESTS

(1) The Central Authority of the Requested Party shall promptly execute the request or arrange for its execution through its competent authorities.

(2) A request shall be executed in accordance with the law of the Requested Party and, to the extent not prohibited by the law of the Requested Party, in accordance with the directions stated in the request so far as practicable.

(3) The Requested Party shall promptly inform the Requested Party of any circumstances which are likely to cause a significant delay in responding to the request.

(4) The Requested Party shall promptly inform the Requested Party of a decision not to comply in whole or in part with a request for assistance and the reason for that decision.

(5) The Requested Party may postpone execution of the request if it would interfere with an ongoing investigation or prosecution or proceeding in relation to a criminal matter or a related civil matter in the Requested Party. Where the request relates to the delivery of documents, the Requested Party shall upon request provide certified copies of those documents.

(6) Before denying or postponing assistance pursuant to this Article, the Requested Party, through its Central Authority:(a) shall promptly inform the Requested Party of the reason for considering denial or postponement; and

(b) shall consult with the Requested Party to determine whether assistance may be given subject to such terms and conditions as the Requested Party deems necessary.

(7) If the Requested Party accepts assistance subject to the terms and conditions referred to in paragraph 6(b) of this Article, it shall comply with those terms and conditions.

ARTICLE VII

LIMITATIONS OF USE

(1) The Requesting Party, if so requested, shall protect the confidentiality of the evidence and information provided by the Requested Party, except to the extent required for the investigation and proceeding described in the request.

(2) The Requested Party, if so requested, shall keep the requested for assistance, its contents and supporting documents, and the fact of granting of such assistance, confidential. If the request cannot be executed without breaching confidentiality, the Requested Party shall so inform theRequested Party which shall then determine whether the request should nevertheless be executed.

(3) The Requesting Party shall not use evidence obtained, nor information derived therefrom, for purposes other than those stated in a request without the prior consent of the Requested Party.

ARTICLE VIII

OBTAINING OF EVIDENCE, ARTICLES OR DOCUMENTS

(1) Where a request is made that evidence be taken for the purpose of an investigation, a prosecution of a criminal offence or a proceeding in relation to a criminal matter in the jurisdiction of the Requesting Party the Requested Party shall, subject to its laws, arrange to take such evidence.

(2) For the purposes of this Agreement, the giving or taking of evidence shall include the production of documents, records or other material.

(3) For the purposes of requests under this Article the Requesting Party shall specify the questions to be put to the witnesses or the subject matter about which they are to be examined.

(4) Where, pursuant to a request for assistance, a person is to give evidence for the purpose of proceedings in the Requesting Party, the parties to the relevant proceedings in the Requesting Party, their legal representatives or representatives of the Requesting Party may, subject to the laws of the Requested Party, appear and question the person giving that evidence.

(5) A person who is required to give evidence in the Requested Party pursuant to a request for assistance may decline to give evidence where either:(a) the law of the Requested Party would permit that witness to decline to give evidence in similar circumstances in proceedings which originated in the Requested Party; or

(b) where the law of the Requesting Party would permit him to decline to give evidence in such proceedings in the Requesting Party.

(6) If any person claims that there is a right to decline to give evidence under the law of theRequesting Party, the Requested Party shall, with respect thereto, rely on a certificate of the Central Authority of the Requesting Party as prima facie evidence of the existence of that right.

ARTICLE IX

OBTAINING STATEMENTS OF PERSONS

Where a request is made to obtain the statement of a person for the purpose of an investigation or proceeding in relation to a criminal matter in the Requesting Party, the Requested Party shall endeavour to obtain such statement.

ARTICLE X

LOCATION OR IDENTITY OF PERSONS

The Requested Party shall, if requested, endeavour to ascertain the location or identity of any person specified in the request.

ARTICLE XI

SERVICE OF DOCUMENTS

(1) The Requested Party shall serve documents transmitted to it for the purpose of service.

(2) The Requesting Party shall transmit a request for the service of a document pertaining to a response or appearance in the Requesting Party within a reasonable time before the scheduled response or appearance.

(3) A request for the service of a document pertaining to an appearance in the Requesting Party shall include such notice as the Central Authority of the Requesting Party is reasonably able to provide of outstanding warrants or other judicial orders in criminal matters against the person to be served.

(4) The Requested Party shall, subject to its law, return a proof of service in the manner required by the Requesting Party.

(5) A person who fails to comply with any process served on him shall not thereby be liable to any penalty or coercive measure pursuant to the law of the Requesting Party.

ARTICLE XII

PUBLICLY AVAILABLE AND OFFICIAL DOCUMENTS

(1) Subject to its law the Requested Party shall provide copies of publicly available documents.

(2) The Requested Party may provide copies of any document, record or information in the possession of a government department or agency, but not publicly available, to the same extent and under the same conditions as such documents, record or information would be available to its own law enforcement and judicial authorities.

ARTICLE XIII

SIGNING CERTIFICATION AND SEALING

A request for mutual assistance and the supporting documents thereto, as well as documents or other material supplied in response to such a request shall:(a) be signed or certified by a Judge, magistrate or other official authorized by the relevant Party; and

(b) be sealed with an official or public seal of the relevant Party, or of an officer of the relevant Party.

ARTICLE XIV

TRANSFER OF PERSONS IN CUSTODY

(1) A person in custody in the Requested Party whose presence is requested in the Requesting Party for the purposes of providing assistance pursuant to this Agreement shall, if the Requested Party consents, be transferred from the Requested Party to the Requesting Party for that purpose, provided the person consents and the Requesting Party has guaranteed the maintenance in custody of the person and his subsequent return to the Requested Party.

(2) Where the sentence of imprisonment of a person transferred pursuant to this Article expires while the person is in the Requesting Party the Requested Party shall so advise the Requesting Party which shall ensure the person's release from custody. Such person shall thereafter be treated as a person referred to in Article XV of this Agreement.

ARTICLE XV

TRANSFER OF OTHER PERSONS

(1) The Requesting Party may request the assistance of the Requested Party in making a person available for the purpose of providing assistance pursuant to this Agreement.

(2) The Requested Party shall, if satisfied that satisfactory arrangements for that person's security will be made by the Requesting Party, request the person to travel to the Requesting Party to provide assistance.

ARTICLE XVI

SAFE CONDUCT

(1) A person who consents to provide assistance pursuant to Articles XIV or XV shall not be prosecuted, detained, or restricted in his personal liberty in the Requesting Party for any criminal offence or civil matter which preceded his departure from the Requested Party.

(2) Paragraph (1) shall not apply if the person, not being a person in custody transferred under Article XV, and being free to leave, has not left the Requesting Party within a period of 15 days after being notified that his presence is no longer required, or having left the Requesting Party, has returned.

(3) A Person who consents to give evidence under Articles XIV or XV shall not be subject to prosecution based on his testimony, except for perjury or contempt.

(4) A person who consents to provide assistance pursuant to Articles XIV or XV shall not be required to give evidence in any proceedings other than the proceedings to which the request relates.

(5) A person who does not consent to provide evidence pursuant to Articles XIV or XV shall not by reason thereof be liable to any penalty or coercive measure by the courts of the Requesting or Requested Party.

ARTICLE XVII

SEARCH AND SEIZURE

(1) The Requested Party shall insofar as its law permits carry out requests for search, seizure and delivery of any material to the Requesting Party provided the request contains information that would justify such action under the law of the Requested Party.

(2) The Requested Party shall provide such information as may be required by the Requesting Party concerning the result of any search, the place of seizure, the circumstances of seizure, and the subsequent custody of the property seized.

(3) The Requesting Party shall observe any conditions imposed by the Requested Party in relation to any seized property which is delivered to the Requesting Party.

ARTICLE XVIII

RESTRAINT, FORFEITURE AND CONFISCATION OF PROPERTY

(1) The Requested Party shall, upon request, endeavour to ascertain whether property which may become the subject of a forfeiture or confiscation order or which may be required to satisfy a pecuniary penalty is located within its jurisdiction and shall notify the Requesting Party of the results of its inquiries.

(2) Where pursuant to paragraph (1) such property is found, the Requested Party shall take such measures as are permitted by its law to prevent any dealing in, transfer or disposal of that property pending a final determination in respect of that property by a Court of the Requesting Party.

(3) The Requested Party shall give effect to a final decision by a court of the Requesting Party imposing a pecuniary penalty or ordering confiscation or forfeiture and shall return or deliver the property to the Requesting Party unless otherwise agreed between the Parties.

(4) Where the property referred to in paragraph (3) of this Article is real property the Requested Party shall sell that property and deliver the proceeds of the sale to the Requesting Party.

(5) In this Article "property" includes:(a) property used in connection with the commission of an offence;

(b) property derived or realized, directly or indirectly, from the commission of an offence;

(c) property which represents the value of benefits derived from the commission of an offence.

ARTICLE XIX

REPRESENTATION AND EXPENSES

(1) The Requested Party shall make all necessary arrangements for the representation of the Requesting Party in any proceeding arising out of a request for assistance and shall otherwise represent the interests of the Requesting Party.

(2) The Requested Party shall assume all ordinary expenses of executing a request within its boundaries except:(a) fees of counsel retained at the request of the Requesting Party;

(b) fees of experts;

(c) expenses of translation;

(d) the expenses associated with conveying any person to or from the Requested Party, and any fees, allowances or expenses payable to that person while in the Requesting Party pursuant to a request under this Agreement; and

(e) the expenses associated with conveying custodial or escorting officers.

(3) If during the execution of the requested it becomes apparent that expenses of an extraordinary nature are required to fulfill the request, the Parties shall consult to determine the terms and conditions under which the execution of the request may continue.

ARTICLE XX

SETTLEMENT OF DISPUTES

Any dispute arising out of the interpretation, application or implementation of this Agreement shall be resolved through diplomatic channels if the Central Authorities are themselves unable to reach agreement.

ARTICLE XXI

ENTRY INTO FORCE AND TERMINATION

(1) This Agreement shall enter into force thirty days after the date on which the Parties have notified each other in writing that their respective requirements for the entry into force of the Agreement have been complied with.

(2) This Agreement shall apply to requests made pursuant to it whether or not the relevant acts or omissions occurred prior to this Agreement entering into force.

(3) Either Party may terminate this Agreement by notice in writing at any time and it shall cease to be in force on the ninetieth day after the day on which notice is given.

IN WITNESS WHEREOF, the undersigned, being duly authorized thereto by their respective Governments, have signed this Agreement.

DONE at the Hong Kong Special Administrative Region on the twenty-third day of February Two Thousand and One in Chinese and English, both texts being equally authentic.

x x x."