Sunday, May 19, 2013
Tyler, Texas attorney and State Bar of Texas President Buck Files has written an informative essay on conflicts of interest which appears in the April 2013 Voice for the Defense (page 15). The essay uses the federal case U.S. v. Lopesierra-Gutierrez, No. 07-3137 (D.C. Cir. March 1, 2013) as a starting point to highlight how important it is to be mindful of conflicts when representing defendants in criminal cases - and by extension, any client in any case. Some conflicts are waivable and some are not and knowing the difference between the to might save the practicing attorney a trip before a grievance committee a time or two.
Saturday, May 18, 2013
In many situations, the first to file a lawsuit in a controversy obtains procedural and sometimes substantive advantages over later filers. The Utah Supreme Court held last week, however, that winning the race to the courthouse carries no special advantage in adoption cases. The case is S.C. vs. Utah, No. 20120016 (Utah May 7, 2013).
In this child protection case, following termination, the foster parents filed first for adoption of the five-year old child at issue and later, a grandmother filed for adoption. The trial court consolidated the cases then announced that the grandmother's petition would be considered only if the court denied the foster parents' petition. The trial court then considered and granted the foster parents' petition and dismissed the grandmother's petition. Grandmother appealed.
The Utah Supreme Court reversed the trial court, holding that the best interest of the child remained the paramount issue when competing adoption petitions were filed. Considering the petitions in the order of filing, the Court held, created the potential for decision on grounds unrelated to the best interests. The Court instructed that a trial court considering competing adoption petitions must hear evidence and consider each petition on the merits without giving priority to the first to file. The best interest of the child therefore, and not filing priority, controls the final determination following the Court's unanimous decision.
In this case, the court resolved a split on the subject in Utah's intermediate courts. One more note of interest - this case was certified under Utah law for direct appeal to the Utah Supreme Court, so there was no intermediate court opinion.
Wednesday, May 8, 2013
In a divided opinion, the Fifth Circuit Court of Appeals held in United States v. Townes, No. 11-50948 (5th Cir. April 30, 2013), that a pharmacy's pseudoephedrine purchase logs were nontestimonial business records that could be admitted in a criminal prosecution without a live witness. Pseudoephedrine is a nasal and sinus decongestant drug often sold behind the counter that, in addition to its lawful uses, can also be used to manufacture meth.
The government charged the defendant in the case with conspiracy to manufacture methamphetamine and conspiracy to possess and distribute pseudoephedrine. The trial court admitted the pseudoephedrine purchase logs from the various pharmacies where the defendant purchased the drugs as business records under Rule 803(6). The prosecution offered the records through the investiging law enforcement agent via certifying affidavits.
The applicable state law requires pharmacies to maintain records related to pseudoephedrine purchases for law enforcement purposes. Defendant argued that for this reason, the records were not business records - records kept for a business purpose. The majority rejected the argument, observing that the business record hearsay exception requires the records be kept in the ordinary course of business. The majority added, "It is not uncommon for a business to perform certain tasks that it would not otherwise undertake in order to fulfill governmental regulations. This does not mean those records are not kept in the ordinary course of business." Slip Op. at 5.
Defendant also argued that admitting the logs via business record affidavit violated his Confrontation Clause rights. The majority rejected this argument also. Citing Melendez-Diaz v. Massachusetts, 557 U.S. 305, (2009), the Court determined that the pharmacy logs were not prepared specifically to prove a material fact at trial, but for legitimate business record-keeping purposes.
The dissenting judge would hold the pharmacy logs were not business records because the records were kept solely for law enforcement purposes and for no other legitimate business reason. The dissent would further hold for this reason that admission by business record affidavit violated the defendant's Confrontation Clause rights.
This is an important opinion and one worth reading to study the lines separating business records, which do not raise Confrontation Clause concerns, from testimonial records, such as drug lab reports, which are testimonial for Sixth Amendment purposes.
Saturday, April 27, 2013
Debra Cassens Weiss at ABA Journal has this report about a strange federal child pornography case in Connecticut where the appeals court has remanded the case back to the trial court for re-sentencing. From the story:
...[U.S. District Judge] Eginton justified his decision to impose the longer sentence by referencing “Facebook, and things like it, and society has changed.” He speculated that the proliferation of Facebook would spur an increase in child pornography, and said he hoped Facebook founder Mark Zuckerberg was “enjoying all his money because … he’s going to hurt a lot of people,” the appeals panel said.
The appellate court remanded for a new sentencing hearing, stating, "“It is plain error for a district court to rely upon its own unsupported theory of deterrence at sentencing, especially where, as here, that theory has little application to the actual facts of the case itself."
Thursday, April 25, 2013
Jan Wolfe, The AmLaw Litigation Daily, reports that U.S. District Judge Otis Wright II, issued a summary judgment order last week bringing to a close litigation initiated a decade ago by the heirs to Superman's co-creator, Jerry Siegel, to reclaim copyright to the iconic (and lucrative) character.
Apprarently, in 1938, Seigel and his co-creator, Joe Schuster, sold the Superman character to Detective Comics for $130. Over the years, the buyer's successors have paid pension and compensation under different agreements, however, in this particular litigation, Siegel's heirs sought to reclaim the copyright under the so-called "termination rights" provision of the Copyright Act. Judge Wright's order brings this effort to a close it appears.
The case is Laura Seigel Larson v. Warner Bros. Entertainment, Inc., Case No. 2:04-cv-08776-ODW(RZx), in the United States District Court for the Central District of California.
Saturday, April 20, 2013
An interesting Third Circuit case from earlier this month raises the question whether a lower court judge can be held in contempt for openly criticizing a higher court for reversing him in a pending case. The case is In re: Kendall, No. 11-4471 (3d Cir. April 3, 2013).
The contempt holding arises from proceedings in a murder prosecution. The case's procedural history is long, convoluted and filled with hints and allegations suggesting misrepresentations and misconduct far and wide. Of particular relevance, after some back and forth in plea negotiations between the prosecutor and the defense, the trial judge ordered the prosecutor, against the prosecutor's wishes, to follow through on an oral plea offer allowing the defendants to plead guilty to involuntary manslaughter, a lesser charge to murder.
To this the prosecutor objected by filing an application for writ of mandamus to the Virgin Islands Supreme Court. The high court granted granted that application on grounds that the government generally may unilaterally withdraw a plea offer, as the prosecutor had done in this case, and that any exception to that general rule did not apply.
The writ of mandamus, however, turned out not to be the end to the matter. Upon return to the trial court, the prosecution and defense made a plea agreement for the defendants to plead guilty to voluntary manslaughter, still a lesser charge, but a more serious one than involuntary manslaughter. The trial judge, after receiving the prosecutor's proffer supporting the plea, rejected that plea bargain and memorialized that rejection in a 31-page opinion that, among other things, characterized the Supreme Court's reasoning in issuing the mandamus as "erroneous, 'improper,' having 'no rational basis,' lacking 'merit,' and 'making no sense." The judge went on to add the opinion was 'contrary to law and all notions of justice." The judge then recused himself for a number of reasons. Ultimately, one co-defendant died before trial; the other was acquitted by a jury.
Back to the story - the Virgin Island Supreme Court, after getting wind of the 31-page opinion, charged Judge Kendall with crimnial contempt, three counts. The counts were:
- Obstructing the administration of justice by issuing the 31-page opinion critical of the Justices' writ of mandamus;
- Failing to comply with the writ of mandamus by refusing to schedule the case for trial, refusing to consider a change of venue or continuance to minimize pretrial publicity, and recusing himself to avoid complying with the writ of mandamus, and
- Misbehaving in his official transactions as an officer of the court by issuing the 31-page opinion and disobeying the writ of mandamus.
The Virgin Islands Supreme Court appointed a Special Master to preside at Judge Kendall's trial. The Special Master recommended Judge Kendall be acquitted on all counts. The Virgin Islands Supreme Court, however, rejected those recommendations and found Judge Kendall guilty on all counts.
Judge Kendall's appeal to the Third Circuit followed.
The Third Circuit agreed that Judge Kendall's comments in the 31-page opinion were speech protected by the First Amendment. In fact, the Court held that because Judge Kendall's comments were "pure speech on public issues," the opinion held, "'the highest rung of the hierarchy of First Amendment values," and is thus 'entitled to special protection.'" Such speech, the Court held, is entitled to protection from criminal punishment unless the speech, "poses a clear and present danger to the administration of justice."
Whether it is good practice for a lower court judge to be openly and caustically critical of a higher court remains an open question, perhaps, but the Third Circuit here resolves that such speech, was lacking decorum, remains First Amendment protected, except in likely rare cases where the speech "poses a clear and present danger to the administration of justice." Kendall certainly is an interesting case and a recommended read.
Wednesday, January 16, 2013
The Supreme Court of Texas heard oral arguments on January 10 to answer whether or not a pet owner can recover for the sentimental value of a dog lost due to another's negligence.
The case is Carla Strickland v. Kathryn and Jeremy Medlen (Case No. 12-0047). The case came to the Texas high court following an intermediate appeallate court's opinion reversing a trial court's order dismissing the claim against Strickland with prejudice. According to a David Yates report in the Southeast Texas Record, the allegations in the case are that an animal shelter took possession of the Medlen's dog after it escaped the Medlen's yard. Jeremy Medlen went to pick up the animal, but did not have enough money to cover the fees. Medlen alleges he was told he could come back with the money and a "hold for owner" tag would be put on the dog. Strickland, it is alleged, neglegently put the dog on the list of animals to be euthanized, and it was, and when Medlen returned for the dog, he learned what had happened.
More after the jump:
Friday, October 26, 2012
In a major family law decision, the Supreme Court of Kentucky yesterday, relying on Troxel v. Granville, 530 U.S. 57 (2000), held that a fit parent is presumed to act in the best interest of the child and that a grandparent seeking child visitation against the parent's wishes must overcome the presumption by clear and convicing evidence that allowing the grandparent visitation is in the child's best interest. Walker v. Blair, No. 2012-SC-000004-DGE (Ky., Oct. 25, 2012).
In this case, paternal grandparent filed for visitation of her grandchild after her son, the grandchild's father, committed suicide under a pre-Troxel state law. Mother opposed the visitation. The Supreme Court held the pre-Troxel grandparent visition statute to be constitutional and interpreted the law to comply with Troxel's requirement that fit parents be presumed to act in the child's best interest. Because the trial and appellate courts in this case placed the parent and grandparent on equal footing and did not give the parent's decision to deny visition the special weight required by Troxel, the Supreme Court reversed and remanded for further proceedings.
See also: Louisville Courier-Journal story here.
Friday, September 21, 2012
Earlier this month, a Florida appellate court held that a defendant's motion to disqualify a trial judge was legally sufficient to require disqualification where the trial judge was a Facebook friend with the prosecutor assigned to the case.
In Domville v. State of Florida, No. 4D12-556, 2012 WL 3826764 (Fla.Dist.Ct.App. Sep. 5, 2012), the defendant filed the motion to disqualify the judge alleging that the judge and prosecutor assigned to the case were Facebook friends. The trial judge denied to motion as legally insufficient.
The appellate court relied upon a 2009 Florida Judicial Ethics Advisory Committee opinion that concluded that the Florida Code of Judicial Conduct precluded a judge from both adding attorneys that appeared in their courts as friends, and allowing attorneys so appearing to add the judge as a friend. The Committee opined that such conduct violated Florida Code of Judicial Conduct, Canon 2B which prohibits judges from conveying or permitting others to convey, "the impression that they are in a special position to influence the judge." The Committee also concluded that a judge that Facebook friends an attorney "reasonably conveys to others" the impression that the attorney is in fact in a special position to influence the judge.
The appeals court quashed the trial court's order denying disqualification as a matter of law and returned the case to the trial court for further proceedings.
To date, Massachusetts and Oklahoma judicial ethics committees have joined Florida in taking a restrictive approach to judges using social media. The Massachusetts Committee's opinion on the subject goes so far as to state that a judge may friend an attorney on social media only when that judge would recuse herself if and when the friended attorney appeared before her.
Even in states where judicial ethics committees have taken a permissive approach to judicial use of social media, judges may face disqualification or recusal motions in similar circumstances. The law in this area is very new and uncertain as judges, attorneys and ethics committees develop policies and implement guidelines for judicial use of social media.
Saturday, September 8, 2012
In an important free speech case yesterday, the Arizona Supreme Court held that tattooing is protected free speech under the First Amendment and Arizona's state constitution. The case is Coleman v. City of Mesa, No. CV-11-0351 (September 7, 2012).
Plaintiffs in the case sued the City after being denied a permit to open a tattoo parlor. The city's controlling ordinance effectively bans certain specified uses, including tattoo parlors, unless the city council grants a permit for the use. The Supreme Court, after finding tattooing to be constitutionally protected expression, held the city's permitting scheme vested unbridled discretion in city officials and failed the First Amendment's time, place and manner test. The Court reversed the trial court's dismissal for failure to state a claim and returned the case to that court for further proceedings.
The Arizona Court considered three approaches to the issue: (1) tattooing is purely expressive activity fully protected by the First Amendment; (2) tattooing is non-expressive activity not First Amendment protected; and (3) categorization on a case-by-case basis. Notably, the Court cited a student comment, Ryan J. Walsh, Comment, Painting on a Canvass of Skin: Tattooing and the First Amendment, 78 U. Chi. L. Rev. 1063 (2011), for the third approach.
Friday, August 31, 2012
When a condemning authority exercises its eminent domain power, the Federal and (usually) State Constitutinos require that authority pay fair market value to the property owner for the property taken at the time of taking. Fair market value is determined by the property's highest and best use of the property, and the property's current use is the presumed highest and best use. Courts may not include in the fair market value, however the value to the condemning authority, also known as special value to owner, or value-to-the-taker. The compensation should reflect what the landowner lost, not what the condemnor gained. Boston Chamber of Commerce v. City of Boston, 217 U.S. 189 (1910). This value-to-the-taker rule serves to keep an owner from receiving a windfall based on the property's special or unique value to the condemnor.
The Avinger family in Enbridge Pipelines (East Texas) L.P. v. Avinger Timber, LLC, ___ S.W.3d ___ (No. 10-0950, August 31, 2012) (6-3 decision) owned vacant land in a gas producing area uniquely situation for a gas production plant. In 1973, the Avinger family leased a 23-acre property to Tonkawa Gas Processing Co., a private concern, for construction of a gas plant. There were several lease renewals on agreed terms until 2007, when the parties could n on longer agree on renewal terms. Tonkawa then merged with Enbridge Pipelines, an entity with condemning authority. Enbridge petitioned to condemn Avinger's interest in the property (all improvements belongs to the gas company); the commissioners awarded Avinger $45,580 at the commissioner's hearing. Avinger appealed.
At trial Enbridge submitted an appraisal with a value for the Avinger tract being $47,940 on a highest and best use of rural residential construction. Avinger's expert valued Avinger's interest to be $20,955,000 using a highest and best use as industrial property - gas processing plant.
Avinger's expert included in his valuation that savings to Enbridge by being able to condemn the property. Because the lease provided that Enbridge could remove the plant from the land and restore the land to its original condition, Avinger's only interest in the property was the vacant land. However, the expert included Enbridge's cost savings by not having to tear down and relocate the plant; a cost Enbridge saved by condemning the property. The Court held that because the appraisal includes value-to-the-taker as part of the value of the comdenmee's value, the appraisal should have been excluded.
The Supreme Court also affirmed the appeallate court's decision to affirm the trial court's exclusion of Enbridge's appraiser. That appraiser established the highest and best use despite the presumtion that the law presumes the property's use for the last almost 40 years would be the highest and best use. The Court noted the property was uniquely situated for operating a gas plant due to pipelines and roads accessing and crossing the property.
With both appraisals found wanting, the Court remanded the case back for a new trial, possibly with different appraisers, or at least new appraisal methodologies. As a general rule, when two appraisals come in with a difference of 43,600%, the red flags should be flying high for any court.
The dissent reportED that the majority errED by referenceing Avinger's expert report because that report was never admitted into evidence. The dissent claims the testimony from the appraiser was adequate to affirm the lower court's decisions. The dissent makes a good point regarding the state of the evidence, perhaps, but their view did not carry the day with the nine justices that mattered.
Wednesday, August 1, 2012
On Tuesday, the Missouri Supreme Court that legislative caps on the amount an injured plaintiff may recover for non-economic damages in a medical malpractice case violate the state's constitutional right to trial by jury. Watts v. Lester E. Cox Medical Centers, No. SC91867 (Mo. July 31, 2012). The court decided the case 4-3.
The Missouri legislature previously passed a law limiting the recovery for non-economic damages in a medical malpractice case to $350,000. Deborah Watts brought suit against her physician on behalf of her child, Naython Kayne Watts, for brain injuries sustained by the child during pre-natal care and delivery. A Missouri jury awarded Watts $1.45 million in non-economic damages, however, following the recovery cap law, the trial court reduced the recovery to $350,000.
The Missouri Supreme Court employed a textual and historical analysis to overturn the recovery limitation law. Missouri's state consitution, adopted in 1820, guarantees that "the right of trial by jury as heretofore enjoyed shall remain involate..." The court read the guarantee to mean that if Missouri common law entitled a plaintiff to a jury trial on non-economic damage in a medical negligence action prior to the state consitution being enacted, then Watts had that same right guaranteed in the present.
The court found that Blackstone identified medical negligence as one of "five types of private wrongs" that could be redressed in court, and that English common law allowed plaintiffs so injured to recover non-economic damages. Further, the court found that Missouri law pre-statehood provided for a jury trial in "all cases of the value of one hundred dollars ... if either of the parties require it." Because the right to jury trial on non-economic damages in a medical malpractice existed at common law prior to 1820, the court concluded, Watts enjoys a constitutionally guaranteed right to trial by jury on her claim for non-economic damages.
The court's decision overturned Adams by and Through Adams v. Children's Mercy Hospital, 832 S.W.2d 898, 907 (Mo. 1992) which had previously upheld the recovery cap against a similar state constitutional challenge. The disagreement between Adams and Watts is on whether or not the Missouri right to trial by jury is satisfied by the mere trial before the jury. Inasmuch as the law allows the jury to hear the evidence and assess damages, Adams concluded, the constitutional guarantee is satisfied even though the recovery cap essentially renders the jury's decision without meaning beyond the cap amount. The Watts court rejected this interpretation:
Adams fundamentally misconstrues the nature of the right to trial by jury. While [the Missouri Constitution] sets the constitutional role of the jury, it does so by guaranteeing an individual right to a trial by jury. The application of [the recover cap law] may permit the jury to perform its constitutional role, but it deprives the individual of his or her right to the damages awarded by the jury. The constitutional significance of the jury’s role in determining damages is reflected in the analytical basis for determining whether the right to trial by jury attaches -- if the action is a civil action for damages, then the right to a jury trial attaches and must “remain inviolate.” Because the constitutional right to a civil jury trial is contingent upon there being an action for damages, statutory limits on those damages directly curtail the individual right to one of the most significant constitutional roles performed by the jury -- the determination of damages. The argument that section 538.210 does not interfere with the right to trial by jury because the jury had a practically meaningless opportunity to assess damages simply “pays lip service to the form of the jury but robs it of its function.”
States continue to return mixed verdicts on state constitutional challenges to recovery cap legislation, typically on textual, historical or structural grounds.
Monday, July 2, 2012
Today, the New Mexico Supreme Court released a unanimous family law decision of first impression, holding that the New Mexico Emancipation of Minors Act ("Emancipation Act") authorizes a district court to emanicpate a minor for some, but not all of the enumerated purposes in the act. Applied to this particular case, the decision reversed the Court of Appeals and affirmed a district court's order emancipating the minor plaintiff while also awarding the minor monthly child support payments from her mother. Diamond v. Diamond, No, 32,695 (N.M. July 2, 2012).
Here, Jhette Diamond ("Daughter") filed for and won emancipation from her Mother at age 16 with the court reserving Daughter's right to collect child support (Daughter is now in her early 20's). Mother did not participate in the hearing, but later filed a motion to set aside the judgment. The trial court conducted a hearing on the motion and denied the Mother's relief, as well as Mother's objection to her duty to support the now emancipated Daughter (Mother conceived Daughter by artificial insemination, Id., fn 1, at 4). The New Mexico Court of Appeals reversed.
The Emancipation Act describes nine puposes for which a minor may be emancipated by a court, and further provides that a court may emancipate a minor "for one or more" of those purposes. One such purpose is the minor's "right to support by his parents." The Supreme Court applied rules of statutory construction to concludes the Emancipation Act authorized a court to emanicpate a minor "for a single enumerated purpose, for all nine enumerated purposes, or for any intermediate number of enumerated purposes." Id, at 6.
The Supreme Court also rejected Mother's argument that Daughter could not prove she was "managing her own financial affairs" (a requirement for emancipation under the Emancipation Act) if she required or needed financial assistance from her. The Supreme Court observed that the Emanicpation Act contemplated that the emancipated minor may require public assistance and expressly provides a minor may not be denied such benefits to which she may be entitled because of emancipation. In rejecting Mother's argument, the Court pointed out further that the trial court did not emancipate Daughter from her support right.
The New Mexico court closed by examining a minor's right to support from her parents under common law and the laws of other states. The several states offer mixed results often turning on statutory language, from all-or-nothing emancipation (California, Vermont), to all-or-partial emancipation (Montana, Nevada) to emanicpation that mandates continued parental support (Michigan). The court found that courts created common law emancipation to protect a child's labor from the parents' creditors, and provided for partial emancipation where appropriate. Of particular note was P. J. Hunycutt & Co. v. Thompson, 74 S.E.628 (N.C. 1912), where the court held that where the father "ran off" the son, the son's later emancipation would not halt the father's support obligations. Diamond, at 13-15.
Thursday, June 28, 2012
In what on writer called a "stinging rebuke to industry and [the challenging] states," a three-judge DC Circuit court panel Tuesday upheld the Environmental Protection Agency's ("EPA's") greenhouse gas regulations.
The case, Coalition for Responsible Reg v. EPA, No. 09-1322 (D.C. Cir. June 26, 2012), following the United States Supreme Court's 5-4 decision in Massachusetts v. EPA, 549 U.S. 497 (2007) which compelled the EPA to regulate air pollutants under the Clean Air Act's ("CAA's") authority. The EPA in turn issued an Endangerment Finding, determining that greenhouse gases may "reasonably be anticipated to endanger public health or welfare" (citing the CAA) and the Tailpipe Rule, setting emission standards for cars and some trucks. The EPA also ordered certain stationary greenhouse gas producers to obtain construction and operating permits. Finally, the EPA issued a Timing and Tailoring Rule providing that only the largest stationary producers would be initially subject to the permit requirements.
The Petitioners which included some states and industry groups challenged the rules on ground that the EPA had improperly interpreted the CAA. Yesterday, the appeals court panel consisting of Judges Sentelle (Reagan appointment), Rogers (Bush II) and Tatel (Clinton), rejected those challenges, allowing the EPA rules to stand.
The next meaningful step for the challengers in this case is the United States Supreme Court, as en banc review of this unanimous decision seems very unlikely. The Massachusetts case was decided five-to-four, and four justices are required to grant certiorari. Inasmuch as the court's composition has changed with two justices from the Massachusetts majority (Stevens, the opinion's author, and Souter) having left the court, I would say there is some chance the Massachusetts dissenters will vote to grant certiorari in the case.
Monday, June 25, 2012
Last week, the Supreme Court of Georgia issued an important decision affirming a civil litigant's right to be present at trial.
The case is Kesterson v. Jarrett, No. S11G0590 (Ga. June 18, 2012), wherein the parents of a child suffering from severe cerebral palsy allegedly resulting from medial malpractice challenged a jury's take-nothing decision favoring the obstretricdian and hospital after the trial court excluded the child from the courtroom. The intermediate court affirmed, but the high court reversed, sending the case back to the trial court for a new trial.
Prior to trial in this case, the defendants moved to have the child excluded on grounds that her presence would result in an "undue prejudicial impact on the jury as to the liability issue." and because the child could not "meaningfully participate in and comprehend the proceedings." A key precedent for both the trial and intermediate court was Helminski v. Ayerst Labs., 766 F.2d 208, 218 (6th Cir. 1985).
The Georgia Supreme Court reversed in 6-1 decision, affirming the child's right to be present, despite her severe impairment and despite that her parents, as next friends, were allowed to be present. The takeaway:
There is, in other words, a personal element to the right to be present. The right is based not only on what the party can do to the case, but on what the case will do to the party. It is the party's interests that are being determined by the jury and the judge, and it is the party's life that will be directly affected by the outcome of the case.Thus, even if a person is deemed incompetent as a matter of law (for example, a young child like Kyla) or as a matter of fact (as Kyla may be), and must therefore be represented by a parent, guardian, or custodian, the person is still considered to be the "real party in interest." Even if she is unable, or the law does not allow her, to make the decisions about her case, she remains a person directly affected by the verdict. The individuals whose legal disputes are brought to our courts for decision cannot be treated merely "as an exhibit, as a piece of evidence," regardless of their legal competence.
The Court stated that concerns about prejudice arising from a party's presence should be addressed through jury instructions or other procedures without infringing on a party’s right to be present.
Saturday, January 7, 2012
Patterson v. Turner Construction Co., ____A.D.3d___(3rd Dept. Oct. 27, 2011), is a short, but interesting case. Indeed, expect more litigation like it. The court holds that an individuals Facebook account is like a diary and not shielded from discovery, if relevant. As the court explained:
The postings on plaintiff's online Facebook account, if relevant, are not shielded from discovery merely because plaintiff used the service's privacy settings to restrict access (Romano v Steelcase Inc., 30 Misc.3d 426, 433-434 ), just as relevant matter from a personal diary is discoverable (see Faragiano v Town of Concord, 294 A.D.2d 893, 894 ).
Hat Tip: Above The Law
Mitchell H. Rubinstein
Monday, December 12, 2011
Federal district court reportedly upholds provision of Alabama immigration law requiring schools to check status
Monday, May 31, 2010
E-Mail Sent From Employee's Yahoo Account On Company Computer Protected By Attorney Client Privilege
Do employees have a reasonable expectation of privacy on an employer's computer. We know that the answer is generally no. What if the employee sends an email from his private Yahoo account to his lawyer on that computer? Can the employer read it? That was the subject of a very interesting N.J. Supreme Court decision which held that the answer is "No." An ABA Journal Blog about this case states:
The New Jersey Supreme Court has ruled that attorney-client privilege protects e-mail discussing a possible employment lawsuit that was transmitted on the corporate laptop of the would-be plaintiff.
Sending and receiving personal, password-protected e-mails on a corporate laptop did not eliminate the attorney-client privilege that protected them, the court ruled in its opinion (PDF). The Legal Profession Blog, the New Jersey Star Ledger and the New Jersey Law Journal covered the ruling.
The opinion could influence workplace privacy rules across the country, lawyers told the Star Ledger.
Lawyers from the Newark law firm of Sills Cummis & Gross in Newark had read the e-mail after the employee, Marina Stengart, quit her job as a nursing manager, filed suit and turned in her computer. Sills Cummis represented Stengart’s employer, a home health care company called the Loving Care Agency. The law firm found the e-mails during a forensic analysis of the laptop.
Law review commentary is needed with respect to this important issue. A copy of this important decision is available here.
Mitchell H. Rubinstein
Hat Tip: Kevin Harren, Esq.
Thursday, April 8, 2010
Apologies are an important part of ADR as well as other areas a law. In one controversial
video of this incident is available on You Tube, http://www.youtube.com/watch?v=UIoyJ-LyAaE
and this case was widely reported in the news media. See, Art Hinshaw, Apology
and Contempt, ADR ProfBlog (
Mitchell H. Rubinstein
Monday, March 15, 2010
Last week, the Fifth Circuit Court of Appeals reversed a drug conviction against a pro se defendant, finding the district court'violated the defendant's Due Process rights when it ordered him shackled in leg irons during the jury trial. United States vs. Jose Enrique Banegas, No. 08-10915 (5th Cir. March 9, 2010).
Federal authorities arrested Banegas during an undercover drug investigation and charged him with drug trafficking. Banegas represented himself pro se at trial (the court appointed a public defender as standby counsel). The trial judge ordered Banegas be shackled during trial "the same 'as everyone in this court who has tried a case pro se that's incarcerated." Banegas objected to wearing the leg irons during trial on grounds that the shackles were prejudicial -- the trial judge overruled the objection, commenting that she could not see the shackles and that it would be "difficult" for the jury to see them. The jury convicted Banegas - the court sentenced him to 365 months in prison.
The United States Supreme Court's decision in Deck v. Missouri, 544 U.S. 622, 629 (2007) (Deck was a 7-2 decision; Justice Thomas's dissent is here) controlled the circuit court's analysis. In Deck, the Court stated that "the Fifth and Fourteenth Amendments prohibit the use of physical restraints visible to the jury absent a trial court determination, in exercise of its discretion, that they are justified by a state interest specific to a particular trial." The Deck Court considered shackling to be "inherently prejudicial" and required trial courts to state the reasons for shackling a defendant outside the jury's presence prior to continuing the trial before the jury with the defendant in leg irons.
The circuit court rejected the government's argument that an objection for "prejudice" did not preserve the constitutional error - prejudice, the circuit court stated, "speaks precisely to the due process concerns that shackling raises." The court then dismissed the reason for shackling provided by the trial court - that all incarcerated pro se defendants are shackled - as being insufficient to justify shackling this particular defendant in this particular trial. The court noted that the particularized safety and security concerns normally required to justify shackling a defendant during trial were absent from this record.
Finally, the circuit court noted that when the district court fails to state particular reasons for placing a defendant in leg iron during a jury trial and there is a question whether or not the jury could see the irons, the government bears the burden to prove beyond a reasonable doubt that the irons could not be seen by the jury, and further, to show beyond a reasonable doubt that the shackles, if so seen, did not contribute to the guilty verdict. With no factual support for this proposition in the record, the circuit court determined that the leg irons were visible to the jury. The court reversed and remanded the case for a new trial.
Trial judges should pay close attention to the record when taking security measures that may affect a defendant's right to a fair trial. The Supreme Court has noted that a decision to shackle a defendant, or a decision to take other security measure, has presumably negative effects not readily appearent in the record. Therefore, absent sound justification, a decision to order a defendant into leg iron will receive close scrutiny on appeal. Deck and now Banegas show that the court should make a trial-specific finding in the record regarding the need for the security measure being taken at trial. Taking the time to reduce to written order the evidence demonstrating the security risk and the steps taken to minimize the risk along with a finding that the steps taken are the least restrictive to the defendant's fair trial right among those availble to the court will help judges make and articulate a decision with the best chance to withstand appellate scrutiny.