Nice Defense Win in 11th

If you were to check the published opinions of the 11th Circuit, you would not find the win by Eric Cohen - because the opinion is unpublished.

Maintaining a consistent approach to a tradition that any opinion likely to establish or reaffirm helpful precedent for a criminal defendant is not to be published, the 11th did not publish the decision of U.S. v. Williams, 2011 WL 3055281 (11th Cir. 2011), which confirmed two very important rules:

1) A defendant's "request to call his attorney to tell him “he was going to cooperate with the Government” constituted “some statement that can reasonably be construed to be an expression of a desire for the assistance of an attorney.""  In the face of such a request, "further questioning is limited to clarification of the equivocal request.”" Williams, at *1.

2) If there is evidence that can support a valid theory of defense instruction, it is error not to give it.  In Williams, the instruction would have told the jury that he could have had the intent to smuggle drugs, without the criminal intent necessary to convict. Id., at *2.

The Court did not even bother to publish the language of the instruction that was requested, but instead simply referred to another published case (United States v. Ruiz, 59 F.3d 1151 (11th Cir.1995) (team of Robert N. Scola, Jr., G. Richard Strafer, H. Scott Fingerhut for the appellants) containing a "nearly identical" instruction.  Nearly identical is helpful, but not as helpful as the actual language itself.

You can be sure that if Williams ultimately decided the improperly admitted confession was harmless error and did not otherwise reverse, the opinion would have been published.  Fortunately, the Court did not even reach that questions because it found the denial of the requested jury instruction to be reversible error.

But it is interesting to note that Williams also raised a third issue on appeal, which the Court did not address because of the reversal.  Williams complained that the district court failed to conduct a competency hearing, but the Court found that because it was reversing on the jury instruction issue, it did not need to reach the competency question.  A bit confusing give the fact that the Court did find the admission of Williams's confession to be in error, but did not reach the question as to whether or not it was reversible error.

The Court deserves credit for publishing a finding that a statement should have been excluded when it wasn't reversing on that issue.  Too often the decisions go the other way - find any possible error harmless, without ever providing any reasoning (or guidance) as to whether or not there was error in the first place.  But it seems that there is no rhyme or reason to what issues are reached and what issues are left untouched.

Anybody want to help me out?