March 17, 2018

Archives for 2018

Cynthia J. Jones Appointed to Clear Creek County Court

On Wednesday, March 14, 2018, the Colorado State Judicial Branch announced the governor’s appointment of Cynthia J. Jones to the Clear Creek County Court in the Fifth Judicial District. Jones will fill a vacancy created by the appointment of Hon. Rachel Olguin-Fresquez to the Eagle County Court, effective February 1, 2018.

Jones is currently a sole practitioner at the Law Office of Cynthia J. Jones, LLC, where she practices criminal law. She is also the primary Alternate Defense Counsel for Eagle County, but has taken cases in Summit, Lake, and Garfield Counties as well. Prior to opening her own firm, Jones was a Colorado State Public Defender for 12 years. She has also worked as an associate at Bailey & Peterson, P.C., where she practiced civil litigation. She received her undergraduate degree from the University of Colorado, her law degree from the University of Montana, and a Masters of Art History degree from Southern New Hampshire University.

For more information about the appointment, click here.

Colorado Court of Appeals: Exoneration Statute Does Not Apply Where Misdemeanor Conviction Still Stands

The Colorado Court of Appeals issued its opinion in Abu-Nantambu-El v. State of Colorado on Thursday, March 8, 2018.

Sexual Assault—Kidnapping—Felony—Misdemeanor—Exoneration Statute—Wrongful Conviction—Compensation.

Defendant was convicted of first degree sexual assault (a class 3 felony), second degree kidnapping (a class 2 felony), and third-degree assault (a class 1 misdemeanor) in the same case, all arising out of an incident in which the victim claimed that defendant had raped her. Thereafter, the felony convictions were vacated based on defendant’s successful Crim. P. 35(c) motion claiming ineffective assistance of counsel. The district court denied the Crim. P. 35(c) motion as to the misdemeanor conviction. Based on the order vacating his felony convictions, defendant filed a petition for compensation pursuant to the Exoneration Statute. The State moved to dismiss and the district court granted the State’s motion.

On appeal, defendant contended that the district court erred when it concluded that his misdemeanor conviction precluded him from filing a petition for compensation. He argued that because the Exoneration Statute addresses only wrongly convicted felons, the legislature could not have meant to include misdemeanor convictions within its parameters. The Court of Appeals concluded that the General Assembly intended to require that all convictions in a case be vacated or reversed for a petition for compensation to qualify for the district court’s consideration.

The judgment was affirmed.

Summary provided courtesy of Colorado Lawyer.

Colorado Court of Appeals: District Court Abused its Discretion by Failing to Apply Three-Part Test for Excusable Neglect

The Colorado Court of Appeals issued its opinion in Taylor v. HCA-HealthONE, LLC on Thursday, March 8, 2018.

Medical Malpractice—Service—C.R.C.P. 4(m)—C.R.C.P. 60(b)—Excusable Neglect.

Plaintiff filed a medical malpractice action but failed to serve defendants within the C.R.C.P. 4(m) deadline. The district court dismissed the action without prejudice, and because the statute of limitations had run, plaintiff could not refile the lawsuit. She moved to set aside the judgment under C.R.C.P. 60(b) based on excusable neglect. Without holding a hearing, the district court concluded that counsel’s docketing errors did not amount to excusable neglect and denied the motion.

On appeal, plaintiff first argued that the district court’s dismissal order was invalid under C.R.C.P. 4(m) because the delay reduction order was premature. Although the rule requires notice before dismissal, it does not require notice after expiration of the service deadline. Thus, plaintiff was not entitled to additional notice beyond the delay reduction order and the district court’s order of dismissal was valid.

Plaintiff also argued that the court erred in failing to apply the three-factor test in Craig v. Rider, 651 P.2d 397 (Colo. 1982), in evaluating her Rule 60(b) motion to set aside the order of dismissal. That test requires the district court to consider not just whether the neglect that resulted in the order of dismissal was excusable, but also whether the plaintiff has alleged a meritorious claim and whether relief from the order would be consistent with equitable considerations. The district court abused its discretion in failing to analyze the Rule 60(b) motion under the three-part Craig test.

The order was vacated and the case was remanded to the district court to apply the Craig test.

Summary provided courtesy of Colorado Lawyer.

Colorado Court of Appeals: Trial Court Did Not Err in Not Allowing Courtroom Gallery to See Sexually Explicit Images of Minors

The Colorado Court of Appeals issued its opinion in People v. Robles-Sierra on Thursday, March 8, 2018.

Child Pornography—Constitutional Law—Sixth Amendment—Public Trial—Distribution—Publishing—File Sharing Software—Expert Testimony—Jury Instruction.

Sheriff’s department detectives found over 600 files of child pornography—in both video recording and still image form—on various electronic devices defendant owned. In each instance, defendant had downloaded someone else’s file to his computer using ARES peer-to-peer file sharing software. Defendant downloaded the files in such a way that other users downloaded hundreds of defendant’s files. Defendant admitted that he’d downloaded and looked at the sexually exploitative material, but stated as a defense that he hadn’t knowingly violated the law because he did not know how ARES software works. A jury found defendant guilty of four counts of sexual exploitation of a child.

On appeal, defendant challenged all the convictions. He first argued that the district court violated his constitutional right to a public trial by closing the courtroom during the presentation of parts of certain exhibits. Two of the prosecution’s witnesses testified about videos and still images taken from defendant’s devices, describing them in graphic terms. Over defense counsel’s objection, the prosecutor displayed the videos and still images using a screen that could be seen by the witnesses and the jurors, but not by anyone in the courtroom gallery. That portion of a trial when evidence is presented should be open to the public, but that right does not extend to the viewing of all exhibits by the public as those exhibits are introduced or discussed. The right concerns the public’s presence during or access to the trial; where no one is excluded from the courtroom, the right is not implicated. Here, the district court didn’t exclude any member of the public during the presentation of the evidence. Because the court didn’t close the courtroom, there wasn’t any violation of defendant’s right to a public trial.

Defendant also challenged all convictions on the basis that the district court erred by allowing the prosecution’s experts to testify to ultimate legal conclusions that were the jury’s sole prerogative to decide. Even assuming all of the challenged testimony was improper, any error fails the plain error test.

Defendant further challenged his two convictions for publishing, offering, or distributing sexually exploitative material because the prosecution’s theories of publishing and distributing were “legally insufficient.” He alleged that the mere downloading of sexually exploitative material to a share-capable file isn’t publication or distribution, and because we don’t know if the jury convicted on either basis or some proper basis, the verdicts on these counts can’t stand. The Court of Appeals analyzed the meaning of “publishing” and “distribution” and concluded that defendant’s downloading of sexually exploitative material to his computer using peer-to-peer file sharing software, and his saving of that material in sharable files or folders accessible by others using the same software, constituted both publishing and distributing the material within the meaning of the statute.

Finally, defendant challenged his two convictions for publishing, offering, or distributing sexually exploitative material because the jury instruction defining “offer” had the effect of directing a verdict against him on these charges. Here, the instruction was an accurate statement of the law and described a factual circumstance that would constitute an offer. The fact that the jury could have found that factual evidence existed from the evidence presented doesn’t mean the instruction directed a verdict.

The judgment was affirmed.

Summary provided courtesy of Colorado Lawyer.

Tenth Circuit: Unpublished Opinions, 3/15/2018

On Thursday, March 15, 2018, the Tenth Circuit Court of Appeals issued no published opinion and four unpublished opinions.

McNelly v. Cline

United States v. Park

United States v. Nunez

Nolan-Bay v. Wickham Glass, Inc.

Case summaries are not provided for unpublished opinions. However, some published opinions are summarized and provided by Legal Connection.

Race Against the Machine, Continued

Rational choice theory is a cornerstone of conventional economic thinking. It states that:

Individuals always make prudent and logical decisions. These decisions provide people with the greatest benefit or satisfaction — given the choices available — and are also in their highest self-interest.

Presumably Stephen Hawking, Elon Musk, and Bill Gates had something like this in mind when they published an open letter in January 2015 urging that artificial intelligence R&D should focus “not only on making AI more capable, but also on maximizing the societal benefit,” To execute on this imperative, they urged an interdisciplinary collaboration among “economics, law and philosophy. computer security, formal methods and, of course, various branches of AI itself.” (Since its release, the letter has garnered another 8.000 signatures — you can sign it, too, if you like.)

The letter’s steady, rational four paragraphs praise how technology has benefited the human race, and anticipate more of the same in the future, but its reception and the authors’ comments in other contexts are not so measured. As a result, the letter has become a cheering section for those who think humanity is losing its race against the robots.

Consider, for example, the following from an Observer article:

“Success in creating AI would be the biggest event in human history,” wrote Stephen Hawking in an op-ed, which appeared in The Independent in 2014. “Unfortunately, it might also be the last, unless we learn how to avoid the risks.” Professor Hawking added in a 2014 interview with BBC, “humans, limited by slow biological evolution, couldn’t compete and would be superseded by A.I.”

Elon Musk called the prospect of artificial intelligence “our greatest existential threat” in a 2014 interview with MIT students at the AeroAstro Centennial Symposium. “I’m increasingly inclined to think that there should be some regulatory oversight, maybe at the national and international level, just to make sure that we don’t do something very foolish.” Mr. Musk cites his decision to invest in the Artificial Intelligence firm, DeepMind, as a means to “just keep an eye on what’s going on with artificial intelligence. I think there is potentially a dangerous outcome there.”

Microsoft co-founder Bill Gates has also expressed concerns about Artificial Intelligence. During a Q&A session on Reddit in January 2015, Mr. Gates said, “I am in the camp that is concerned about super intelligence. First the machines will do a lot of jobs for us and not be super intelligent. That should be positive if we manage it well. A few decades after that though the intelligence is strong enough to be a concern. I agree with Elon Musk and some others on this and don’t understand why some people are not concerned.”

Or consider this Elon Musk comment in Vanity Fair:

In a startling public reproach to his friends and fellow techies, Musk warned that they could be creating the means of their own destruction. He told Bloomberg’s Ashlee Vance, the author of the biography Elon Musk, that he was afraid that his friend Larry Page, a co-founder of Google and now the C.E.O. of its parent company, Alphabet, could have perfectly good intentions but still “produce something evil by accident”—including, possibly, “a fleet of artificial intelligence-enhanced robots capable of destroying mankind.”

In other words, Hawking, Gates, and Musk aren’t just worried about machines taking over jobs, they’re worried about the end of the world — or at least the human race. This Washington Post op-ed piece thinks that might not be such a bad thing:

When a technology is so obviously dangerous — like nuclear energy or synthetic biology — humanity has an imperative to consider dystopian predictions of the future. But it also has an imperative to push on, to reach its full potential. While it’s scary, sure, that humans may no longer be the smartest life forms in the room a generation from now, should we really be that concerned? Seems like we’ve already done a pretty good job of finishing off the planet anyway. If anything, we should be welcoming our AI masters to arrive sooner rather than later.

Or consider this open letter written back to Hawking, Gates, and Musk, which basically says forget the fear mongering — it’s going to happen no matter what you think:

Progress is inevitable, even if it is reached by accident and happenstance. Even if we do not intend to, sentient AI is something that will inevitably be created, be it through the evolution of a learning AI, or as a byproduct of some research. No treaty or coalition can stop it, no matter what you think. I just pray you do not go from educated men to fear mongers when it happens.

As usual, we’re at an ideological impasse, with both sides responding not so much according to the pros and cons but according to their predispositions. This article suggests a way through the impasse:

At the beginning of this article, we asked if the pessimists or optimists would be right.

There is a third option, though: one where we move from building jobs around processes and tasks, a solution that is optimal for neither human nor machine, to building jobs around problems.

The article is long, well-researched, and… well, very rational. Too bad — conventional thinking aside — other research shows we rarely act from a rational outlook when it comes to jobs and the economy… or anything else for that matter.

More on that next time.



Kevin Rhodes writes about individual growth and cultural change, drawing on insights from science, technology, disruptive innovation, entrepreneurship, neuroscience, psychology, and personal experience, including his own unique journey to wellness — dealing with primary progressive MS through an aggressive regime of exercise, diet, and mental conditioning.

Check out Kevin’s latest LinkedIn Pulse article: When We Move, We Can Achieve the Impossible.”

Tenth Circuit: Unpublished Opinions, 3/14/2018

On Wednesday, March 14, 2018, the Tenth Circuit Court of Appeals issued no published opinion and four unpublished opinions.

Trimble v. Board of County Commissioners of Tulsa County

Clark v. Time Inc.

Rusk v. Tymkovich

Ray v. McCollum

Case summaries are not provided for unpublished opinions. However, some published opinions are summarized and provided by Legal Connection.

Colorado Supreme Court: Teacher Employment, Compensation, and Dismissal Act Did Not Create Legislative Contract

The Colorado Supreme Court issued its opinion in School Dist. No. 1 v. Masters on Monday, March 12, 2018.

In this case, the supreme court considers two questions. First, it considers whether the General Assembly, by enacting the Teacher Employment, Compensation, and Dismissal Act of 1990 (“TECDA”), created a legislative contract that it later impaired by enacting the unpaid-leave provisions of C.R.S. § 22-63-202(2)(c.5) (2017). Second, it considers whether a nonprobationary teacher who is placed on unpaid leave under C.R.S. § 22-63-202(2)(c.5)(IV) is deprived of due process. The supreme court holds that TECDA did not create a legislative contract or vest nonprobationary teachers who are placed on unpaid leave with a property interest in salary and benefits. The supreme court therefore concludes that the General Assembly has not impaired a contractual obligation by enacting the unpaid-leave provisions, and that nonprobationary teachers who are placed on unpaid leave have not suffered a violation of their right to due process.

Summary provided courtesy of Colorado Lawyer.

Colorado Supreme Court: Nonprobationary Teachers Placed on Unpaid Leave Have No Vested Property Interest in Salary and Benefits

The Colorado Supreme Court issued its opinion in Johnson v. School Dist. No. 1 on Monday, March 12, 2018.

In this case, the supreme court considers two certified questions from the United States Court of Appeals for the Tenth Circuit. The first is whether the unpaid-leave provisions of C.R.S. § 22-63-202(2)(c.5) (2017) apply to all nonprobationary teachers who are not employed in a “mutual consent” placement, or only to those who are displaced for the reasons enumerated in C.R.S. § 22-63-202(2)(c.5)(VII). The second is whether a nonprobationary teacher who is placed on unpaid leave under C.R.S. § 22-63- 202(2)(c.5)(IV) is deprived of a state property interest in salary and benefits. The supreme court holds that the provisions of C.R.S. § 22-63-202(2)(c.5) apply to all displaced nonprobationary teachers, not just nonprobationary teachers who are displaced because of a reason stated in section 22-63-202(2)(c.5)(VII). The supreme court further holds that nonprobationary teachers who are placed on unpaid leave have no vested property interest in salary and benefits, meaning a nonprobationary teacher who is placed on unpaid leave under C.R.S. § 22-63-202(2)(c.5)(IV) is not deprived of a state property interest.

Summary provided courtesy of Colorado Lawyer.

Colorado Supreme Court: Trial Court Did Not Abuse Discretion by Failing to Appoint GAL Sua Sponte

The Colorado Supreme Court issued its opinion in Ybanez v. People on Monday, March 12, 2018.

Ybanez petitioned for review of the court of appeals’ judgment affirming his conviction of first degree murder and directing that his sentence of life without the possibility of parole be modified only to the extent of permitting the possibility of parole after forty years. See People v. Ybanez, No. 11CA0434 (Colo. App. Feb. 13, 2014). In an appeal of his conviction and sentence, combined with an appeal of the partial denial of his motion for postconviction relief, the intermediate appellate court rejected Ybanez’s assertions that the trial court abused its discretion and violated his constitutional rights by failing to sua sponte appoint a guardian ad litem; that he was denied the effective assistance of counsel both because his counsel’s performance was adversely affected by a non-waivable conflict of interest under which that counsel labored and because he was prejudiced by a deficient performance by his counsel; and that he was entitled to an individualized determination regarding the length of his sentence rather than merely the possibility of parole after forty years.

The supreme court affirmed the judgment of the court of appeals and remanded the case with directions to return it to the trial court for resentencing consistent with the supreme court opinion, for the reasons that Ybanez lacked any constitutional right to a guardian ad litem and the trial court did not abuse its discretion in not appointing one as permitted by statute; that Ybanez failed to demonstrate either an adverse effect resulting from an actual conflict of interest, even if his counsel actually labored under a conflict, or that he was prejudiced by his counsel’s performance, even if it actually fell below the required standard of competent representation; and that Ybanez is constitutionally and statutorily entitled only to an individualized determination whether life without the possibility of parole or life with the possibility of parole after forty years is the appropriate sentence.

Summary provided courtesy of Colorado Lawyer.

Tenth Circuit: Unpublished Opinions, 3/13/2018

On Tuesday, March 13, 2018, the Tenth Circuit Court of Appeals issued four published opinions and five unpublished opinions.

Balding v. Sunbelt Steel Texas, Inc.

Kendall v. Olsen

Cross v. Bear

United States v. Moncada

Jacobs v. Commissioner of Internal Revenue

Case summaries are not provided for unpublished opinions. However, some published opinions are summarized and provided by Legal Connection.

A New Approach to Writing Facts, Part II

The first half of this article explained how to create stories. It drew analogies to filmmaking and described four criteria from Stephen Armstrong and Timothy Terrell. Those criteria are where does a story start, where does it end, from whose perspective is the story told, and which details are included and where.[1]

Let’s apply this approach to fact sections.

Example 1: A Criminal Appeal

Compare these two excerpts from a criminal appeal’s fact sections.

Version 1:

Around 11:00 p.m., Sergeant Smith, Officer Jones, and Officer Richardson, members of the Auto Larceny Unit with over twenty years of combined experience, patrolled in an unmarked car near Main Street and Tenth Avenue. These uniformed officers observed a white Subaru with a Wyoming license plate double-parked in front of a housing project in a high crime area. When Smith saw the Wyoming license plate, he ran a computer check for possible car theft because Wyoming had a recent streak of fraudulent car registrations.

As the officers waited for the results, defendant, wearing a camouflage jacket, left the car, crossed Tenth Avenue, and entered a gas station. He stood there, looking up and down the street, but did not buy anything or peruse the store. Then two other passengers left the car and entered a nearby housing project. A few minutes later they came back with a brown paper bag and re-entered the car. Then the defendant crossed the street and got back into the car. They pulled away, and made a U-turn over a double yellow line.[2]

Version 2:

Michael Doe left Jackson Hole to visit his ill cousin in Denver. He had no car so he got a ride from his cousin Christopher, and his cousin’s friend, James. They left Jackson Hole around 6:00 a.m. The rental car, a Subaru, had three rows of seats. Christopher drove and James was the front seat passenger. Michael sat behind Christopher. No one sat in the third row seat closest to the trunk.

When they arrived in Denver that night, they stopped by Christopher’s aunt’s home. They double-parked across from a gas station. After the long trip, Michael got out to stretch his legs. He crossed the street to a gas station. Christopher and James got out to visit the aunt. After a few minutes, everyone got back inside the car. They pulled away en route to Michael’s cousin. When Christopher noticed flashing lights in his rearview mirror he pulled over. Three officers approached the car.[3]


Even if this was the only section you read from each brief, you would probably determine the case involves a Fourth Amendment issue surrounding a car stop, and the first version belongs to the prosecution while the second version comes from the defense. Note the varying strategies.

The prosecution’s story starts minutes before the car stop. It begins from the combined officers’ perspective. The reader learns what they know and nothing else. This perspective aligns with the prosecution’s viewpoint on the Fourth Amendment, which usually centers on reasonableness; officers do not need to be perfect or all-knowing, they just have to act reasonably. The details chosen support the position. You learn a lot about the officers’ background. To build credibility, you learn their names, their unit, and some of their experience. The story shifts to the car occupants’ perspective to describe their relevant behavior. The details build suspicion. You know very little about them, but a lot about the situation. This type of car is often stolen and it is in a high crime neighborhood. The defendant’s behavior at the gas station makes him appear to be a lookout. And the ending is critical. The brown paper bag acts like a new character. At the end of the story the reader wants to know what is in the bag. Drugs? A gun? Putting aside the law, the facts almost burden the defendant to provide an explanation.

Contrast the defense story. It starts hours earlier from the occupants’ perspective to show how normal their behavior is. You learn the names of everyone in the car and their relationship to one another. Michael, the defendant, has a good motive to be in the car (visiting a sick relative) and is doing something both legal and normal by getting a ride from his cousin. The details about who sat where foreshadows an issue about contraband later located in the car and who it belonged to. The story ends with the police pulling the car over. Interjecting the officers at the end accomplishes a few goals. Primarily, the reader is left wondering why the officers pulled over the car. Again, regardless of the legal burden, the reader wants an explanation for the officers’ actions. You never learn the names or backgrounds of the officers because to the defense they do not matter.

Example 2: A Supreme Court Brief

Here’s an example from a brief by then-attorney John Roberts. The question before the U.S. Supreme Court was whether the EPA could override Alaska’s permitting decision under the Clean Air Act (CAA).[4] The fact section starts with this:

Statutory and Regulatory Background. The CAA establishes “a comprehensive national program that ma[kes] the States and the Federal Government partners in the struggle against air pollution.” General Motors Corp. v. United States, 496 U.S. 530, 532 (1990). At the same time, the CAA recognizes that “air pollution prevention and air pollution control at its source is the primary responsibility of States and local governments.” 42 U.S.C. §7401(a)(3) (emphasis added); see also id. § 7407(a) (“Each State shall have the primary responsibility for assuring air quality within the entire geographic area comprising such State”) (emphasis added). Thus, while the CAA assigns the EPA the responsibility for establishing national ambient air quality standards (“NAAQS”) for certain pollutants, see id. § 7409, the Act assigns the States the responsibility for implementing them. See id. §§ 7407(a), 7410(a).[5]

The opening begins with the regulatory scheme—not with Alaska, not with the federal government, not with a description of air pollutants, and not with the mining company this case affected. This choice frames the issue as Congress wanting states to control air pollutants. It uses case law and the Act’s language to emphasize a joint-scheme with states leading the way. That is a strategic choice to have the reader understand this viewpoint upfront and ideally view the later facts through this lens.

Later the fact section reads:

For generations, Inupiat Eskimos hunting and fishing in the DeLong Mountains in Northwest Alaska had been aware of orange- and red-stained creekbeds in which fish could not survive. In the 1960s, a bush pilot and part-time prospector by the name of Bob Baker noticed striking discolorations in the hills and creekbeds of a wide valley in the western DeLongs. Unable to land his plane on the rocky tundra to investigate, Baker alerted the U.S. Geological Survey. Exploration of the area eventually led to the discovery of a wealth of zinc and lead deposits. Although Baker died before the significance of his observations became known, his faithful traveling companion—an Irish Setter who often flew shotgun—was immortalized by a geologist who dubbed the creek Baker had spotted “Red Dog” Creek.

. . .

Operating 365 days a year, 24 hours a day, the Red Dog Mine is the largest private employer in the Northwest Arctic Borough, an area roughly the size of the State of Indiana with a population of about 7,000. The vast majority of the area’s residents are Inupiat Eskimos whose ancestors have inhabited the region for thousands of years. The region offers only limited year-round employment opportunities, particularly in the private sector; in the two years preceding Alaska’s permit decision, the borough’s unemployment rate was the highest in the State.[6]

No one could claim the name of a mine, a dog in an airplane, the demographics of a region, or any of these facts are necessary to interpret the Clean Air Act’s text. Although unnecessary, they are relevant. “Roberts is litigating a classic federalism fight between the states and the federal government. And who knows how a mine fits into the community better than the local and state officials close to the ground?”[7] By using facts to show how unique the area is and how invested local peoples and local government are in the region, it shows a need and a reason why state government is better suited than the federal government to control permitting.

Example 3: A Supreme Court Decision

Look at Justice Jackson’s opinion in United States v. Morissette. The issue was whether a defendant could knowingly convert government property without any criminal intent. After the introductory paragraph, here is the opening:

On a large tract of uninhabited and untilled land in a wooded and sparsely populated area of Michigan, the Government established a practice bombing range over which the Air Force dropped simulated bombs at ground targets. These bombs consisted of a metal cylinder about forty inches long and eight inches across, filled with sand and enough black powder to cause a smoke puff by which the strike could be located. At various places about the range signs read ‘Danger—Keep Out—Bombing Range.’ Nevertheless, the range was known as good deer country and was extensively hunted.

Spent bomb casings were cleared from the targets and thrown into piles ‘so that they will be out of the way.’ They were not sacked or piled in any order but were dumped in heaps, some of which had been accumulating for four years or upwards, were exposed to the weather and rusting away.

Morissette, in December of 1948, went hunting in this area but did not get a deer. He thought to meet expenses of the trip by salvaging some of these casings. He loaded three tons of them on his truck and took them to a nearby farm, where they were flattened by driving a tractor over them. After expending this labor and trucking them to market in Flint, he realized $84.

Morissette, by occupation, is a fruit stand operator in summer and a trucker and scrap iron collector in winter. An honorably discharged veteran of World War II, he enjoys a good name among his neighbors and has had no blemish on his record more disreputable than a conviction for reckless driving.

The loading, crushing and transporting of these casings were all in broad daylight, in full view of passers-by, without the slightest effort at concealment. When an investigation was started, Morissette voluntarily, promptly and candidly told the whole story to the authorities, saying that he had no intention of stealing but thought the property was abandoned, unwanted and considered of no value to the Government. He was indicted, however, on the charge that he ‘did unlawfully, wilfully and knowingly steal and convert’ property of the United States of the value of $84, in violation of 18 U.S.C. s 641, 18 U.S.C.A. s 641, which provides that ‘whoever embezzles, steals, purloins, or knowingly converts’ government property is punishable by fine and imprisonment. Morissette was convicted and sentenced to imprisonment for two months or to pay a fine of $200. The Court of Appeals affirmed, one judge dissenting.[8]

The fact section sets Morissette up for a win.

It begins with a god’s-eye-view of a place, the bombing range. [9] Then it describes things in that place, spent shell casings. Only then is Morissette introduced. We learn he goes to the range for an innocuous purpose, hunting. True, there are signs saying keep out (a bad fact for Morissette), but we already learned the signs are not enforced. All of his alleged criminal acts are summed up in three sentences: he wanted to make some money, he took the casings, and he sold them for $84. Then a paragraph about Morissette’s positive character. And then Morissette’s approach to his actions; he did everything in broad daylight, never thought anything was wrong, never hid it, and cooperated with authorities.

Rather than a chronology, this story is about where, who, and why. It frames Morissette as an upright man with blameless motives.[10] By the end the reader is sympathetic to Morissette, and even wondering why this man was ever arrested. And that is precisely where Justice Jackson wants you before starting his legal analysis.[11]

[1] Stephen V. Armstrong & Timothy P. Terrell, Thinking Like a Writer: A Lawyer’s Guide to Effective Writing and Editing 300 (Practicing Law Institute 3d ed. 2009).

[2] This is a variation of the fact section in the Brief for Defendant-Appellant at 4-15, People v. Bryant, 562/05 (N.Y. App. Div. 2010).

[3] This is a variation of the fact section in the Brief for Respondent at 4-14, People v. Bryant, 562/05 (N.Y. App. Div. 2010).

[4] Brief for Petitioner, Alaska v. Environmental Protection Agency at i, No. 02-658 (U.S.).

[5] Id. at 5.

[6] Id. at 7-9 (citations omitted). This example is courtesy of Ross Guberman, Point Made: How to Write Like the Nation’s Top Advocates 59 (Oxford University Press 2d ed. 2014).

[7] Ross Guberman, “Five Ways to Write Like John Roberts,”

[8] Morissette v. United States, 342 U.S. 246, 247–50 (1952). This example courtesy of Armstrong & Terrell, supra n. 1 at 117-18, 300.

[9] Armstrong & Terrell, supra n. 1 at 300

[10] See id. at 117.

[11] For more examples of fact sections and storytelling see Armstrong & Terrell, supra n. 1 at 113-118, 296-305.


Michael Blasie graduated from the New York University School of Law. He began his career as a commercial litigator and criminal defense attorney in the New York City office of Cooley LLP where he practiced in state and federal trial and appellate courts. After five years he moved to Denver where he worked as a law clerk to the Honorable David J. Richman of the Colorado Court of Appeals before becoming Staff Counsel at Wheeler Trigg O’Donnell, LLP. Michael also serves as a volunteer firefighter for the City of Golden.