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News from the Director

FDAP Update: Claims, E-Filing, SF Crime Lab and Appealability of Motions to Recall Sentences
July 1, 2015

Claims

Claims Claims - Unbriefed Issues

At its June 17, 2015 meeting, AIDOAC approved the attached document giving guidance to panel attorneys on how to claim and be compensated for unbriefed issues. The appellate projects and AIDOAC will be employing the principles in determining reasonable compensation for unbriefed issues. These principles are not meant to deter panel attorneys from investigating the possible issues that appear in a case. They are meant to help you best articulate the unbriefed issues you have worked on and state them in a clear, concise manner so that, where appropriate, you can be compensated for them. For example, point one in the guidelines does not preclude compensation for research directed towards mounting a challenge to existing law. Compensation is available for such an unbriefed issue. However, as has always been true, compensation will be awarded only if the unbriefed issue has a reasonable basis. As always, if you have any question about the principles or any aspect of the billing process, please do not hesitate to contact the project attorney assigned to your case.

Claims – Phone Expenses

The costs of a flat-rate phone plan are considered overhead and are not reimbursable. On your claims, please include a very brief explanation for phone expenses, so that the reviewer can confirm it was for collect or toll charges, rather than a flat-rate plan charge. Such explanations will expedite the processing of your claim, obviating the need for a follow-up inquiry.

Claims - Postage/Shipping Expenses

The First District’s adoption of TrueFiling has substantially reduced the number of documents (and copies) mailed or shipped. For a case in which your shipping costs are nevertheless high, it is helpful if you include on your claim a short explanation for any unique mailing or shipping costs. For example, “shipping large record to client” or “shipping the record to the project for Wende review” or “mailing required paper copies of lengthy Supreme Court habeas petition and exhibits.” Providing such an explanation on your claim when the expense is unusually high will speed up the processing of your claim as it will obviate the need for follow-up inquiries by FDAP or Judicial Council staff (formerly the AOC).

Claims - Record-keeping

Please remember to retain your time records and expense receipts. Time should be recorded in tenths of an hour and contemporaneously with the work performed. On occasion, FDAP will request to review your receipts or time entries. When panel attorneys have been unable to produce adequate records in response to such a request, we have been unable to recommend full payment for the claimed amounts.

Electronic Filing Electronic Filing - Bookmarking and Pagination of Briefs

The First District Court of Appeal has published a short document entitled “Formatting Guidelines” for electronically filed documents, which can be found at the following web address: http://www.courts.ca.gov/documents/1dca-Local-Rule-16-bookmarks-and-pagination.pdf.

In addition, the Courts of Appeal have produced a more comprehensive “Guide to Creating Electronic Appellate Briefs,” which can be found at the following web address: http://www.courts.ca.gov/documents/DCA-Guide-To-Electronic-Appellate-Briefs.pdf. This document, which is not specific to any one District Court of Appeal, contains instructions for converting word processor-created documents (including Microsoft Word and WordPerfect documents) to PDFs, paginating briefs, creating electronic bookmarks, redacting briefs, editing PDFs, and combining multiple PDFs into a single PDF.

Both of the above documents set forth a new recommended method for paginating appellate briefs and other filings, such as writ petitions, that have tables. The First District’s “Formatting Guidelines” document “encourages all electronic files” to “[n]umber pages consecutively beginning with the cover page of the document, using only the Arabic numbering system, as in 1, 2, 3. Do not use a separate pagination system for tables within the document. The page number does not need to appear on the cover page.” The “Guide to Creating Electronic Appellate Briefs” contains similar language. Although the new pagination method is not mandatory in the First District, as it is in other districts, the First District urges filers to paginate their briefs in this way, and we suspect it will eventually become mandatory.

The Central California Appellate Project (CCAP) has created instructions for building tables of contents and tables of authorities that automatically update page numbers, which attorneys may find useful in transitioning to the Court of Appeal’s new, preferred method of brief pagination. Attorneys using Microsoft Word will find instructions here: http://www.capcentral.org/procedures/truefiling/docs/auto_updating_pg_numbers_tables_word.pdf. Attorneys using WordPerfect will find instructions here: http://www.capcentral.org/procedures/truefiling/docs/auto_updating_pg_numbers_tables_wordperfect.pdf.

CCAP’s website contains additional helpful information regarding bookmarking and pagination (see item no. 6) here: http://www.capcentral.org/procedures/truefiling/step_tf_guides.asp. Please keep in mind, however, that CCAP’s instructions and suggestions were drafted with practice in the Fifth District Court of Appeal in mind, so there may be some minor differences from practice requirements in the First District.

Electronic Filing - Keep the Court of Appeal Apprised of Your Current Email Address

As counsel of record, you are required to keep a current electronic service email address on file with the Court of Appeal while your cases are still pending. California Rules of Court, rule 8.71(d)(1) states that counsel must promptly file a notice of change of email address with the Court of Appeal and must serve this notice electronically on all other parties. As with other court filings, please serve FDAP with such a change of email address notice.

Electronic Filing - Submitting Service Copies of Documents Filed in the Trial Court to the Court of Appeal via TrueFiling

If, in the course of one of your appeals, you file a document in the trial court, such as a Fares letters or a motion, you should submit a service copy of that document to the Court of Appeal via TrueFiling. When doing so, our district has asked that you select “Miscellaneous – Additional Documents” as the filing/document type in TrueFiling. Do not, for example, select “Motion” or “Letter” when electronically submitting a service copy of a document filed in another court.

San Francisco Crime Lab - DNA

As some of you may have read, questions have arisen concerning the reliability of DNA testing and analysis by the San Francisco Police Crime Lab. In one case, the laboratory apparently reported a match with a defendant, when, in fact, the results were susceptible to two interpretations, one of which would have excluded that defendant. The lab apparently failed to follow its own protocols, as well as state/federal testing protocols, in that case. There was also reportedly a failed proficiency test. Both matters concern the same analyst (Mignon Dunbar) and the same former supervisor (Cherise Boland).

These problems may well pose more far-reaching concerns regarding the reliability of DNA testing by the S.F. Crime Lab. Those concerns could potentially apply to any case involving DNA testing conducted from 2010 to the present.

The San Francisco District Attorney’s Office is in the process of identifying cases and is sending out “Brady letters” to defense attorneys on those cases. It is likely that those letters will be sent to defense trial counsel, rather than appellate counsel.

For the time being, we suggest that appellate attorneys try to identify any currently-pending (and, if you so chose, recently closed appeals) from San Francisco involving DNA evidence, especially any in which the DNA evidence potentially played a significant role in the identification of the defendant or was relevant for some other reason. We suggest that you maintain contact with defense trial counsel to determine whether any “Brady letter” has been received and what follow-up steps, if any, are being taken. Of course, also feel free to contact your FDAP consulting staff attorney to discuss the specifics of your case, including whether any potential claims are better pursued at the trial or the appellate level.

Appealability of Orders Denying Motions to Recall Sentences

Under PC 1170(d) FDAP Staff Attorney Jeremy Price has written the attached analysis of the scope of People v. Loper (2015) 60 Cal.4th 1155, which held that the denial of a Penal Code section 1170(e) compassionate release recall petition is an appealable order. Although Loper was about 1170(e), it has important implications for 1170(d) rulings.

Loper disapproved of the cases holding that because a defendant does not have the right to move for relief under Penal Code section 1170(d), the denial of such relief is a non-appealable order. We have concluded that where the defendant brought an 1170(d) recall motion within 120 days of the original sentencing hearing, the trial court’s ruling on the recall motion should now be considered an appealable order.

Appointed appellate counsel should make sure that trial attorneys in their ongoing appeals with known Penal Code section 1170(d) recall motions are filing notices of appeal from adverse rulings.

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