Appeal Watch: Illegal Lawyer, Judge Trumping Jury and Appeal in Execution-Style Murder Case

The Illegal Lawyer?

The phrase “illegal lawyer” may soon be more than just a bad oxymoron. The California Supreme Court (“CSC”) will render a verdict on what could be a huge issue concerning the rights of illegal immigrants in the United States. In re Garcia on Admission S202512 deals with the case of Sergio Garcia, an illegal Mexican immigrant who lives in California. He has passed the state bar exam. He has attended law school. He even received the bulk of his post-secondary education in the United States.

Nonetheless, he is currently fighting for the right to practise law in the state. The facts of the matter are fairly simple: Garcia was brought to the States as a toddler illegally, was taken back to Mexico, returned illegally to the States as a teenager, attended both university and law school in California, passed the California bar exam, and then was told he could not practice law because of his illegal status in the country. Somewhere in between all of this, his family filed for citizenship papers. Seventeen years later, his family is still waiting for a decision.

When the case goes up before the CSC in the coming months, the court will be asked to consider 5 main issues: (1) whether s. 1621(c) of the United States Code (8 U.S.C.), or any other U.S. state or federal statute that concerns the denial or granting of public benefits, including professional licenses, applies to “illegal aliens” like Garcia; (2) whether there is any state legislation as per s. 1621(d), that would prevent Garcia from being given the license to practice; (3) whether the issuance of a law license to practice law implies that the licensee can also be employed as an attorney; (4) if, when the licence was granted, there would be any “legal and public policy limitations” that would affect illegal immigrants like Garcia from practicing law fully and to the best of their abilities; and (5) what, if any, other public policy concerns can arise from granting this application.

The CSC will determine Garcia’s case based solely on his immigration status. But pressure is mounting on the CSC to consider broader implications. Kamala D. Harris, the Attorney General of the State of California has filed an amicus curiae brief, citing the concern that all immigrants, whether documented or undocumented, should be encouraged to become upstanding citizens and productive members of American society. Obviously, opponents point to the slight absurdity of allowing someone who lives outside of the law to practice law for a living. A more compelling argument is that this case, if decided in favour of Garcia, would open the floodgates for the circumvention of immigration procedures in the United States. It would encourage further illegal immigration. Opponents would also state that is patently unfair for someone to benefit socially and economically in a country where he/she does not belong.

Ultimately, the decision might boil down to the issue of the protection of the rule of law, and whether allowing Garcia to practice might demean that. Of course, Garcia’s case will also be at the whim of legislation, namely the Dream Act, which would give men and women just like Garcia — men and women who came to the United States as children illegally — the right to not be deported and, above all, to find legal employment. While President Obama has made strides to pass the Dream Act, it faces scrutiny and hostility in both the Senate and the House of Representatives; like the future of the Act, the future of illegal immigrants, lawyers or not, remains very precarious in the United States.


A Rare Breed: Jury Undone by the Judiciary

The Ontario Court of Appeal would have the final word on rule 52.08 of the Rules of Civil Procedure RRO 1990, Reg 194, as the Supreme Court of Canada recently dismissed the appeal of Salter et al. v Hirst et al. 2011 ONCA 609.  This case is highly unusual. Not only is it rare for a trial judge to overturn a jury verdict, but it has been eleven years since the Ontario Court of Appeal heard a case that dealt with rule 52.08. The rule stipulates that, “Where there is no evidence on which a judgment for the plaintiff could be based or where for any other reason the plaintiff is not entitled to judgment, the judge shall dismiss the action.”

The trial judge invoked Rule 52.08 in his ruling on motion and cross motion to overturn the jury’s finding of negligence. Justice Eberhard of the Ontario Superior Court of Justice held that there was “no evidence” that could have allowed the jury to find the plaintiffs, George Salter and his wife, Karen Hogan, had successfully proved the causation component of negligence. The panel of judges on appeal agreed with the trial judge and upheld her decision.

The case focused on medical malpractice. George Salter was admitted to a hospital with severe abdominal pain; Dr. Hirst was the admitting physician. Salter’s condition worsened substantially and after two days Dr. Hirst reassessed and decided Salter needed to be transferred to another facility where he was misdiagnosed and then sent to another facility. The delays Salter experienced in these various hospitals ultimately resulted in the loss of use of both his legs. Subsequently, Salter sued Dr. Hirst for negligence, claiming that Dr. Hirst’s delay in transferring him to surgery resulted in his paralysis. The only issues at trial were liability and causation, as the parties agreed upon damage.

In negligence actions, the burden lies on the plaintiff to prove the various elements on a balance of probabilities. Despite the jury finding that the plaintiffs satisfied this burden, the trial judge held that the plaintiffs failed to provide any evidence that could allow a jury to find that, on a balance of probabilities, Hirst’s delay in transferring Salter caused the paralysis and instead entered an acquittal. The Court of Appeal agreed with the trial judge’s decision.

It is of the utmost importance that the plaintiff prove every element in a negligence action, especially in cases of medical malpractice cases. In Canada, the threshold that plaintiffs must reach to prove that a doctor breached the standard of care is high. This case shows that a judge will even step in when there is a sufficiently important mistake. While we often tell ourselves that cases can be argued one way or another, this case seems to suggest that there is, after all, the “right” decision. And this case allows the judge to go down the road less traveled, and set aside the jury’s decision, in order to render that “right” decision.


Appeal Granted in Execution-Style Murder Case

In 2002, a prominent member of the Guyenese community in Toronto was murdered, point blank, in his own apartment. Earlier this month, the Supreme Court of Canada decided to hear the appeal of a man convicted of murdering Colin Moore. Leighton Hay, one of two men convicted of the murder of Moore, was nineteen years old at the time. The basis for Hay’s appeal is hair evidence: at trial, the Crown put forward the argument that Hay had shaved his head following the crime in order to avert police identification; police had found hair clippings in Hay’s apartment.

Hay’s defence team, however, submits fresh evidence, which suggests that there is 90 per cent chance that the hairs found were facial hairs, and not from one’s head. This greatly undermines the Crown’s theory. It follows then that a verdict, which does not take into account this fresh evidence, would be unreliable and unfair.

The Supreme Court, in its usual fashion, stated its decision to hear the case in a brief paragraph. There was no indication whether the panel of judges was impressed by the fresh evidence or whether the evidence would be admitted. The Crown quickly shot down the hair evidence; it is irrelevant, as it does not indicate when Hay cut his hair. Though the defence’s case remains shaky, the success of the appeal itself is significant.

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