Federal Court Appeals Attorney

Alex Wathen was named Appellate Lawyer of the Week by Texas Lawyer Magazine for his victory in the Hassan v. State appeal reversing his client's conviction.

In its latest issue Texas Lawyer Magazine has named Alex Wathen Appellate Lawyer of the Week.  The article is available on its website to those who register.  Texas Lawyer decided to honor Wathen for obtaining a reversal in the case of a Houston Cab Driver charged with running a red light.  During jury selection the prosecutor used all of his strikes against minority jurors and in spite of Wathen’s Batson motion the trial judge did not require the prosecutor to give race neutral reasons for the strikes.  When the Fourteenth Court of Appeals ordered the trial court to hold a full Batson hearing the prosecutor could not come up with reasons for two of the strikes, although he stated that he never strikes people based on race, causing the appellate court to reverse the conviction.

Alex Wathen has been known for his frequent Batson motions in municipal court and his pro bono appeals for deserving clients who cannot afford to pay.  ”It is about the integrity and fairness of the process:  Allowing people to serve on juries regardless of race and ensuring that the defendant gets a fair trial by a jury that is a cross-section of the community,” said Alex Wathen.

The appeals court ruled that a prior conviction for grading without a permit does not bar a subsequent prosecution for manslaughter resulting from covering a spillway for a dam. Photo of the Alekoko Fish Pond on Kauai courtesy of Collin Grady.

The Hawaii Intermediate Court of Appeals upheld the indictment against James Pflueger who had previously plead no contest to grading without a permit.  Pflueger argued that the filling of the spillway was part of the same conduct as the grading and that he was being punished twice for the same conduct in violation of the Double Jeopardy Clauses in the United States Constitution and in the Hawaii Constitution.

The case illustrates the problem that courts are not very vigilant in upholding protections against Double Jeopardy for multiple punishments for the same conduct.  While this case may have been high profile in Hawaii it would probably not get much coverage elsewhere.  That is sad because this is an issue that goes far beyond the beautiful Aloha State.  There are people all over this country who are being unfairly subjected to multiple prosecutions for the same conduct because courts are not vigilant in protecting that aspect of the right against Double Jeopardy.  Click here to read the opinion:

State v. Pflueger – Hawaii Intermediate Court of Appeals – Opinion on double jeopardy with multiple punishments for same conduct.  Consult your appellate attorney if this applies to your case.

The power to wage war is at issue in this lawsuit that is about the struggle of power between the branches of government.

This lawsuit, if it gets enough attention, will be a nice distraction for Congress who is being plagued by scandals and other unfavorable news coverage lately.  While Congressman Anthony Weiner fights to stay in Congress and keep his committee memberships and Congressman Ruben Hinojosa fights to keep his bankruptcy petition sealed (click to view the sealed original petition and sealed amended petition), Congress surely welcomes press coverage that is more substantive.

The lawsuit was filed by Professor Jonathan Turley who represents the members of Congress.  As always on this blog, full text of the documents are available:

Docket Sheet for Dennis Kucinich, Ron Paul, John Conyers, Dan Burton, and other members of Congress lawsuit against President Barack Obama and Secretary Robert Gates.

Cover Sheet for Kucinich v. Obama

John Edwards indicted for using campaign funds on mistress read the full text of the indictment pdf file

While the media was focusing and reporting from Raleigh the case is actually filed in Greensboro.

Read full text dowloadable pdf documents here:

Docket Report for John Edwards Case

Documents by Number:

1 Indictment of John Edwards for Using Campaign Funds on Mistress full text downloadable pdf

2 Arrest Warrant for John Edwards for Using Campaign Funds on Mistress full text downloadable pdf

Ninth Circuit Chief Judge Alex Kozinski blasts the federal sentencing guidelines.

Alex Kozinski, Chief Judge of the Ninth Circuit appeared on a panel of appellate judges at the 2011 Annual Training Seminar of the United States Sentencing Commission in San Diego, California, on May 19, 2011.  Judge Kozinski said that the guidelines were enacted for political purposes because Congress did not like those liberal judges giving too lienient sentences.   District Judge Ricardo Hinojosa of the Southern District of Texas, who is a huge supporter of the guidelines, and a Commissioner and Form Chair of the United States Sentencing Commission, countered reminding Kozinski had been a judge for two years less than Hinojosa!  Hinojosa and other members of the United States Sentencing Commission tend to defend the guidelines often using the exact same rationale from the opposite perspective stating that judges give arbitrarily different sentences often arbitrarily high ones.

The Fifth Circuit releases recordings of its oral arguments on its website. Photo Courtesy of Bobak Ha'Eri.

The oral argument recording Burnett v. Stwart Title argued by Alex Wathen is now available for listening and downloading.  I am very proud over how well it went and we are now hoping that the case turns out well for the client.  The case Burnett v. Stewart Title, Inc, No. 10-20250 was argued before the Fifth Circuit in Houston on January 31, 2011.  The case was argued in the Fifth Circuit’s Houston Courtroom, Courtroom 11D, Bob Casey United States Court House, 515 Rusk, Houston, TX 77002.

The panel consisted of Circuit Judges Carolyn Dineen King, Harold R. DeMoss, Jr., and Edward C. Prado.    Judge King did not ask any questions, Judge Prado asked a question early on the argument, and Judge DeMoss asked the most questions.   “I would predict that Judge King will write the opinion, because she had no questions other than how to pronounce my name,” said Alex Wathen who believes that it is usually the most silent judge who writes the opinion.

The case has received a lot of attention including an amicus brief by NACBA the National Association of Consumer Bankruptcy Attorneys which is actively involved in the advocacy for bankruptcy debtors through its amicus project headed by Tara Twomey.   Alex Wathen would also take this opportunity to thank NACBA, Tara Twomey, his co-counsel Shari Goldsberry who played an integral part in Alex’s preparation for oral argument, as as well as Dan Perez, a distinguished labor and employment lawyer from Florida who argued the case in the 11th Circuit against Toojay’s on the same issue.   “NACBA, Twomey, Goldsberry, and Perez deserve great thanks for their help in getting me ready for oral argument in this case,” said Alex Wathen.

Fifth Circuit comes to Houston sitting at the Bob Casey United States Court House at 515 Rusk on the 11th floor in Courtroom 11D.

On Monday, January 31, 2011, at 9 a.m. at the Bob Casey United States Court House, 515 Rusk, Houston, Texas 77002, the Fifth Circuit will visit Houston.  Alex Wathen will argue the case of Burnett v. Stewart Title where the issue is whether a debtor in bankruptcy is protected from employment discrimination in the initial hiring process.  Arguments will start at 9 a.m. in courtroom 11D on the 11th floor which is the courtroom usually used when the Fifth Circuit meets in Houston a couple of times a year.

This case could have major ramifications for debtors seeking employment and will clarify the law for the entire circuit which consists of the federal courts in Texas, Louisiana, and Mississippi.  It is undisputed that Section 525 of the Bankruptcy Code, which is Title 11 of the U.S. Code, prohibits any other form of discrimination other than in the initial hiring process.  The dispute centers on two subsections of Section 525, (a) which applies to public employers contains the phrase “deny employment” and (b) which does not.  Both subsections however contain a residual clause  ”otherwise discriminate with respect to employment.”  Alex Wathen argues that this clause would be rendered meaningless if it does not encompass original hiring decisions.

The panel hearing the case consists  of Fifth Circuit Judges Carolyn Dineen King, Harold R. DeMoss, Jr., and Edward C. Prado.

The Arizona-Mexico Border at Nogales

July 6, 2010 – Less than an hour ago our federal government through Attorney General Eric Holder sued Arizona to stop the enforcement of its state law to enforce immigration laws.   This is the same attorney general that Alex Wathen has had two victories over in the Ninth Circuit recently in immigration cases where the Attorney General tried to keep the immigrants out of our country including one who deserves  political asylum based on religious persecution.  The attorney general opposed those who applied in the court system for legal status but is now taking the opposite position with respect to controlling illegal immigration.  This will be an interesting lawsuit.  The documents filed so far are:

Docket Report – Basic information about the case and a list of the docket entries and documents filed.

1. Complaint – Read Why the Federal Government Opposes Arizona’s Efforts

1-1 CoverSheet – Standard Informational Form in Civil Cases

1-2 Summons – Proposed

1-3 Summons – Proposed

2 Not available for download

3 Notice Availability of Magistrate Judge – This is standard but unlikely to be used in this case.

4-1 Summons Issued – When served with this document the Defendant is commanded to answer in court.

4-2 Summons Issued – When served with this document the Defendant is commanded to answer in court.

This picture below from the past is instructive of the effectiveness of the federal government’s approach to the border:

Ineffective immigration enforcement is the trademark of the federal government.

Federal appeals court attorney Alex Wathen received support from NACBA in one of his appeals.

June 22, 2010 – Houston, Texas -  NACBA the National Association of Consumer Bankruptcy Attorneys filed a brief in support of one of Alex Wathen’s clients in the case of Burnett v. Stewart Title, No. 10-20250 in the United States Court of Appeals for the Fifth Circuit.  NACBA joined Alex Wathen in asking the Fifth Circuit to reverse the lower court ruling which restricts the employment discrimination protection in Section 525 of the Bankruptcy Code.   The lower court ruled that private employers may deny employment to a prospective employee with as a little as a single bankruptcy while at the same time an employer may not terminate an employee who has filed twenty bankruptcies or otherwise discriminate against such an employee.  Alex Wathen is arguing that his client with a single bankruptcy should also be protected from arbitrary discrimination under the plain language of the statute.  NACBA joined in support of Alex Wathen’s client arguing that if the lower court ruling stands it would undermine the fresh start that debtors have under the Bankruptcy Code.  The case is likely to be argued in New Orleans later this year once the Fifth Circuit has had time to study the briefs.  NACBA’s amicus brief is available for viewing and download:

NACBA National Association of Consumer Bankruptcy Attorneys Amicus Brief

Richard H. Chambers United States Court House, Pasadena, California courtesy Wikimedia Commons

Alex Wathen argued two immigration cases before the Ninth Circuit on May 7, 2010.  The Panel hearing both cases consisted of Ninth Circuit Judges Betty Fletcher, Richard Paez, and District Judge Edward R. Korman from the Eastern District of New York.  The cases were argued in the Richard H. Chambers United States Court House in Pasadena, California.  The Ninth Circuit appointed Alex Wathen and his co-counsel first as amici for the petitioners on these cases but when the retained counsels became unavailable Alex Wathen was designated not just to argue as the amicus but also the entire case for both petitioners.

One case involved an asylum application by a Chaldean Iraqi Christian who is seeking political asylum in the United States based on religious persecution.  Attorney General Eric Holder opposed the application claiming that the persecution was based on the sale of beer at the petitioner’s family’s restaurant rather than religion even though the persecutors were motivated by religion.   The petition was granted and the case has been remanded.   Listen to the oral argument recording and read the opinion.

The other case involved an immigrant couple who presented clear evidence that they qualified to stay in the United States yet the immigration judge still denied relief.  Again the Attorney General still opposed this case too.  Listen to the oral argument recording and read the opinion.