Seventh Circuit Criminal Case of the Week: Of Lifelines and Waiver
When a lawyer is making what is clearly a losing argument, a judge will sometimes throw the lawyer a lifeline, using a question to suggest a more fruitful line of attack. An astute lawyer will follow the judge’s cue and adapt his or her argument accordingly.
Such does not seem to be the case with the lawyer in United States v. Foster (No. 08-1914).
Last year, in United States v. Smith, 544 F.3d 781 (7th Cir. 2008), the Seventh Circuit held that a conviction for criminal recklessness in Indiana does not count as a prior “crime of violence” for purposes of triggering the fifteen-year mandatory minimum of the Armed Career Criminal Act. Darryl Foster, however, was given the ACCA sentence enhancement based on a prior conviction for criminal recklessness in Indiana. Looks like a slam-dunk issue on appeal, right?
This fall, Marquette University Law School is fortunate to have Professor Michael R. Smith as a Robert E. Boden Visiting Professor of Law. Professor Smith is visiting from the University of Wyoming College of Law, where he is the Winston S. Howard Distinguished Professor of Law and the Director of Legal Writing. Professor Smith’s work in legal writing and written advocacy is nationally renowned. He has published a book on persuasive legal writing entitled Advanced Legal Writing: Theories and Strategies in Persuasive Writing (Aspen 2002). This book has received such interest and acclaim that the release of the second edition was the impetus for a 2008 conference, A Dialogue About Persuasion in Legal Writing & Lawyering, which was held at Rutgers Law School-Camden. 