2011 Marer Award for Outstanding Appellate Advocacy Goes to Sheri M. Cohen

At the annual SDAP Spring Appellate Seminar on May 6, 2011, the winner of the 2011 Gerald Z. Marer Award was announced. This year’s winner was Sheri M. Cohen.

Ms. Cohen joined the SDAP panel in 1994, not long after she became a lawyer in 1992. She was admitted to do both criminal and dependency cases. Her rise from the entry level to the upper levels of the panel was meteoric by our usual standards, with promotion in each of her first three annual reviews.

After just 14 months on the panel, Ms. Cohen was assigned the appeal of Miguel Sermeno, who had been convicted of felony hit and run after a court trial. Despite never having previously investigated or prepared a habeas petition, Ms. Cohen was able to locate two crucial witnesses who were not called by the defense at trial whose testimony convincingly established that her client was not guilty, and had been blamed by the injured passenger in the car to avoid inculpating her boyfriend, the actual driver. Her habeas petition was granted and the case ultimately dismissed. The Sermeno case was one of four cases of wrongfully convicted defendants that were the centerpiece of the 2006 San Jose Mercury News series “Tainted Trials, Stolen Justice.”

In 2000, Ms. Cohen decided to devote herself solely to dependency appeals. The quality of her briefing was exceptional and led to several reversals, which are rare in dependency cases in the Sixth District. Her recent published win in In re J.N. (2010) 181 Cal.App.4th 1010 is an example of her excellence in appellate advocacy. She persuaded the court to reverse jurisdictional findings, the most complete form of relief available in dependency appeals. She successfully argued that a one time incident of driving while intoxicated with children in the car, resulting in non life threatening injury to them, did not justify dependency court jurisdiction over the children, in light of the parents’ generally excellent care, lack of any evidence of an ongoing substance abuse problem by either parent, and steps taken before the jurisdictional hearing to address the problematic conduct.

The J.N. court disagreed with another recent decision, In re J.K. (2009) 174 Cal.App.4th 1426, which had held that a single incident in which a child suffered harm was sufficient to justify dependency court jurisdiction, even in the absence of current risk at the time of the jurisdictional hearing. The J.N. opinion stated that current risk must be shown and that there was no substantial evidence to support that finding. Ms. Cohen requested publication of the opinion in light of this disagreement, and after the opinion was certified, successfully opposed attempts by the county and amicus curiae to have the Supreme Court depublish it.

Ms. Cohen was unable to attend the seminar, as she had long scheduled plans to vacation in Spain on that date. However, she appeared via DVD to thank SDAP for the award and the support provided to her and to thank her fellow members of Bay Area Dependency Lawyers, a chapter of California Appellate Defense Counsel. Ms. Cohen encouraged attorneys to participate in dependency appeals, emphasizing the importance of due process when the state intrudes on family relationships and the humanity of those in the dependency system. While noting her own imminent retirement from the active practice of law, she offered her assistance to anyone interested in taking on dependency appeals.

Ms. Cohen joins four other distinguished panel members as a recipient of the Marer award. Previous recipients are: J. Courtney Shelvelson (2007), Carla Castillo (2008), David Martin (2009) and Jean Matulis (2010).

(May 19, 2011)

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