Tuesday, January 12, 2016
The Maine Supreme Judicial Court affirmed a domestic violence conviction of a defendant who raised on appeal the issue whether a single prior act of consensual sexual intercourse made his victim a "sexual partner"
[The defendant] and the victim were at an apartment in Lewiston when Murphy “put her down on the floor and put his foot on her face . . . enough so it made her mouth bleed.” A little over a year before this incident, a Lewiston police officer responding to a noise complaint had witnessed Murphy and the victim having consensual sexual intercourse in the basement of an apartment building. Because the victim did not cooperate in the prosecution of the crime against her, the only evidence the jury had concerning the relationship between her and the defendant was that testimony about a single sexual act.
here the State presented evidence that Murphy and the victim did engage in a consensual sexual act approximately one year before Murphy assaulted the victim. Because the common meaning of the term “sexual partners” covers individuals who have engaged in a sexual act on one occasion as well as those in committed, intimate relationships, that evidence was sufficient to allow a jury to find that Murphy and the victim were or had been “sexual partners,” and thus “family or household members” for the purposes of domestic violence assault.
Thursday, December 31, 2015
The Connecticut Supreme Court affirmed the conclusion that certain communications were not inadmissible due to marital privilege
The defendant, Sheila Davalloo, was convicted, after a jury trial, of murder in violation of General Statutes § 53a-54a. The defendant appeals from the judgment of the Appellate Court affirming that conviction after concluding that her statements to her husband, Paul Christos, did not fall within the protection of § 54-84b. State v. Davalloo, 153 Conn. App. 419, 436, 449, 101 A.3d 355 (2014). Because we conclude that the defendant’s statements were not ‘‘induced by the affection, confidence, loyalty and integrity of the marital relationship,’’ as § 54-84b (a) requires, we hold that the statements were not protected by the marital communications privilege.
This case involves a love triangle that took a deadly turn. The defendant became infatuated with Nelson Sessler, her coworker at Purdue Pharma, Inc., a pharmaceutical company in Stamford. State v. Davalloo, supra, 153 Conn. App. 421. The victim, Anna Lisa Raymundo, also was a fellow Purdue Pharma, Inc., employee and the third member of the love triangle. Id. In late 2000, Sessler met Raymundo at an after work happy hour and, in the summer of 2001, Sessler met the defendant for the first time at another after work happy hour. The defendant told Sessler that she was divorced, although she was still married to Christos. Sessler began separate sexual relationships with both the defendant and Raymundo. Id.
The story gets complicated but ends up with the murder of Ms. Raymundo and, later, the defendant's stabbing of her husband Mr. Christos with a knife.
His testimony against his wife was properly admitted.
The trial court analysis
...the court heard arguments relating to the motions in limine and ruled that ‘‘ ‘these statements . . . were not made in furtherance or induced by affection, confidence, loyalty, and integrity of the relationship; quite the contrary. It is just the opposite. The statements made to the run-up of the murder of [Raymundo], the description of a faux triangle, again, for lack of a better word, it would be bizarre to classify those as in furtherance of the sanctity of the marital relationship. The plan here was to do in a potential third party suitor of [Sessler] . . . and, ultimately, [Christos], have him removed from the scene either by way of divorce and/or physically remove him from the scene. And, in fact, this defendant was convicted of the attempted murder of her husband in those [New York] proceedings. So, those statements leading up to the runup in this triangle and whatnot for various reasons don’t fall within the purview of the marital privilege. To rule that way would be . . . bizarre. Statements after the death of Raymundo to accommodate the relationship with Sessler fall in the same category, as well as the statements leading up to and relative to the attack and attempted murder of [Christos].’ ’’ Id., 430. The trial court further stated that, ‘‘[t]o argue that these [statements] were in furtherance of the marital relationship defies common sense, are in fact bizarre, and could only be applicable to some parallel universe . . . with which I am not acquainted.’’ The court then granted the state’s motion and denied the defendant’s motion.
Wednesday, December 30, 2015
The Tennessee Court of Appeals affirmed dismissal of a civil claim predicated on a dog bite
Plaintiff James Anthony Moore was at Defendant Michael Gaut’s residence to do maintenance on his satellite dish when he was bitten by Defendant’s dog, a Great Dane. The dog was in Defendant’s fenced-in backyard, Plaintiff was on the other side of the fence, and the dog bit Plaintiff on his face. The trial court granted Defendant summary judgment based on its finding that there was no evidence that Plaintiff knew or should have known that the dog had any dangerous propensities. On appeal, Plaintiff argues that the large size of the Great Dane, a breed Plaintiff characterizes as being in a “suspect class,” should be enough, standing alone, to establish a genuine issue of material fact as to whether Plaintiff should have known the dog had dangerous propensities. We disagree and affirm the trial court’s judgment...
As the trial court observed, all the evidence presented by Plaintiff tends to show that Defendant believed his dog was friendly, gentle, and jovial before the bite occurred. Nor is there any evidence that Defendant was aware of any prior playful or mischievous behavior that could be dangerous. Moreover, it is undisputed that the dog did not get outside the fence, and that Plaintiff is the one who approached the dog.
A legal theory of liability failed to persuade
The trial court also correctly observed that what Plaintiff is asking us to do here is to create a “big dog exception” to the notice requirement established by centuries-old common law and Tenn. Code Ann. § 44-8-413. In his arguments to the trial court and in his appellate brief, Plaintiff states that “it is common knowledge that Great Danes are an extraordinarily large breed” and “submits that its size alone placed the Defendant on notice of any dangerous propensity.” (Emphasis added). Plaintiff asserts that “Great Danes are a suspect class of dog” because they are “a large and naturally dangerous animal, based on size, weight, and strength.” We, like the trial court, decline to craft an exception to the long and well established rules in dog bite cases, based solely on a dog’s size or breed.
The court rejected the suggestion that the appeal was frivolous.
The Maryland Court of Appeals reached a different result with respect to pit bulls. On a motion to reconsider, the Maryland Court
amended [its opinion] to delete any reference to cross-breds, pit bull mix, or cross-bred pit bull mix.
The Maryland decision is analysed here .
Wednesday, November 25, 2015
Not a legal profession case but possibly of interest is a decision today of the Massachusetts Supreme Judicial Court finding no liability for a series of news articles about the suicide of a member of the band Boston.
The band Boston was founded in 1975, after [plaintiff] Scholz and Brad [Delp] obtained a recording contract with CBS/Epic Records, and Scholz hired band members Barry Goudreau, Sib Hashian, and Fran Sheehan to join the group. The band toured very successfully for a number of years, but, approximately thirty years before Brad's death, there was a falling out between Scholz and the latter three band members. All of the original members of the group, other than Scholz and Brad, left the band. Scholz continued to tour with different group members, including Brad, under the name "Boston." Fran Cosmo joined the band as a backup singer for Brad, and as he got older and had more difficulty reaching the high notes for which Boston was known, Brad was dependent on Cosmo's voice as backup to his. In addition to touring with the band, Brad maintained his friendship with the former members of the group, who had discontinued all contact with Scholz, and played with them when he was able to do so...
Brad committed suicide on March 9, 2007, having purchased the means to do so on March 8.
In the mid-1970s, Donald Thomas Scholz, a musician, composer, recording engineer, and record producer, founded the rock band "Boston." After many years playing in the band, Brad Delp, who was its lead singer, committed suicide on March 9, 2007. The Boston Herald, Inc., published three stories regarding Brad's suicide, written by columnists Gayle Fee and Laura Raposa, who relied on information from Brad's former wife, Micki Delp, and various unnamed "insiders" and "friends." Scholz filed an action for defamation in the Superior Court against Micki, arguing that the statements made by her and reported in the newspaper articles insinuated that Scholz was responsible for Brad's suicide. Scholz later brought an action in the Superior Court for defamation and intentional infliction of emotional distress against the Boston Herald, Inc., and its two columnists (collectively, the Herald), based on the same statements as reported in the three articles.
We conclude that the newspaper articles and statements contained therein constitute nonactionable opinions based on disclosed nondefamatory facts that do not imply undisclosed defamatory facts. Because the statements even arguably attributing responsibility for Brad's suicide to Scholz were statements of opinion and not verifiable fact, and therefore could not form the basis of a claim of defamation, we conclude that summary judgment properly was entered for the Herald by the second motion judge, and that the first motion judge correctly allowed Micki's motion for summary judgment.
Tuesday, October 27, 2015
The West Virginia Supreme Court of Appeals has held that an employee of The Marshall University failed to establish an invasion of privacy claim on these facts
Approximately twelve years ago, petitioner underwent a mastectomy and reconstructive surgery on her left breast that included the insertion of an implant. Several years later, petitioner grew concerned about the appearance of the reconstruction and the possibility that the implant had ruptured or shifted. In October of 2010, petitioner consulted with Adel A. Faltaous, M.D., a plastic surgeon employed by respondent, to inquire about whether she should undergo corrective surgery. As part of petitioner’s examination, photographs were taken of her naked breasts, from “just below the breasts to about the neck.” Petitioner’s face was not photographed, but her name was written on the picture. The purpose of the photographs was, in part, to obtain authorization from petitioner’s insurance carrier for the proposed surgery. Petitioner understood that the proposed surgery would have to be preauthorized by her insurance company.
A few days later, one of Dr. Faltaous’s employees sent a letter to petitioner’s employer seeking preauthorization for petitioner’s surgery because the employee mistakenly believed that such requests were to be sent there. The letter included the aforementioned photographs of petitioner and was opened by an assistant in the human resources department at petitioner’s work. After reading the letter and viewing the photographs, the assistant showed the photographs and letter to her supervisor, who then asked her own supervisor what she should do with the photographs. The upper-level supervisor did not look at the photographs. Instead, he directed the assistant to return the photographs to petitioner. The photographs were sealed in an envelope, marked “confidential,” and hand-delivered to petitioner. When petitioner opened the envelope, the photographs fell face-down on her desk. There is no evidence that anyone saw the photographs after they fell on the desk.
The court found that the situation might be embarrassing but was not actionable.
Justice Benjamin disageed
In the instant case, I believe that Ms. Mays can prove the elements of a claim for invasion of privacy under our law. Ms. Mays had a right to prevent photographs of her naked breasts from being published to her coworkers. Further, the defendant’s publication of photographs of Ms. Mays’ naked breasts among her coworkers, although unintentional, was unreasonable.
And Justice Davis
Linda Mays, a breast cancer survivor who had undergone a mastectomy and reconstruction, consulted Dr. Faltaous regarding further reconstructive surgery. During this medical consultation, photographs were taken of Ms. Mays’ exposed torso to be used for the limited purpose of medical confidential photographs to Ms. Mays’ employer, where they were viewed by two of Ms. Mays’ coworkers. Because Ms. Mays regularly sees those coworkers, she is frequently reminded of the disclosure of her private and confidential medical photographs. It is not this Court’s role to decide whether these actions constitute emotional distress or rise to the level of tortious conduct. Instead, a jury should have been allowed to consider these facts and determine whether Ms. Mays is entitled to recover for her embarrassment and resulting injuries. Because the majority upheld the circuit court’s summary dismissal of Ms. Mays’ claims rather than letting a jury determine the factual issues presented, I resolutely dissent.
Tuesday, October 13, 2015
The Tennessee Court of Criminal Appeals has affirmed a conviction for indecent exposure and public indecency in a Sears store.
The court summarized the testimony of a store employee of his observations by camera
Roberts testified that he saw the appellant “fondling” himself. The appellant‟s penis was outside of his clothing, and he was “actually placing his hand down and pulling his private parts out and actually rubbing.” The State asked if Roberts was offended by the appellant‟s actions, and Roberts answered, “Yes, sir. Well, I really was kind of surprised [about] what happened, because the store was full of personnel, and a couple of times a female had passed by and everything but he continued to do what he was doing.” Roberts said that he left the camera room because the appellant acted like he was going to leave the store. Instead of leaving, though, the appellant stopped at the door, which gave Roberts an opportunity to confront him. Roberts identified himself to the appellant, took the appellant to his office, and called the Clarksville Police Department. Roberts identified a video recording of the appellant‟s actions, and the State played the video for the jury.
The appellant testified that on December 29, 2013, he was shopping for afterChrismas sales at the mall and went into the “women‟s section” of Sears to shop for his mother. The appellant had just come from exercising and was wearing sweatpants. He stated that he had a “clothing malfunction,” that he was “making adjustments,” and that he was looking around to make sure nobody was around him. The appellant testified that the drawstring on his sweatpants was broken and that “that‟s why you see me in the video pulling my pants up.”
The appellant explained that his gentials were hanging out of the hole in his boxer shorts and that he was “kind of like scratching, looking around, and then I got myself together.” The appellant denied that he was masturbating and said that he was “just scratching.” The appellant said that he thought he did a good job of concealing himself and that “as seen in the video, you will see there were other customers in the vicinity of where I was at certain points in time.” He said that if he had intended for someone to see him, “it would be pretty easy” and that the only reason Roberts saw him was due to the video cameras. The appellant never lifted his shirt to expose his penis and did not have an erection. He stated that he had a daughter, a mother, and several nieces and that he would not want anyone to expose himor herself to his family. He said any exposure was accidental.
The issue on appeal was whether the instructions properly defined "masturbation" to the jury
we note that the appellant objected to the definition‟s inclusion of the use of one‟s fingers to perform masturbation; he did not object to the definition‟s failure to state that masturbation required the intent to reach orgasm. See Tenn. R. App. P. 36(a). In any event, Merriam-Webster‟s Dictionary defines “masturbation” as “erotic stimulation especially of one‟s own genital organs commonly resulting in orgasm and achieved by manual or other bodily contact exclusive of sexual intercourse, by instrumental manipulation, occasionally by sexual fantasies, or by various combinations of these agencies.” Merriam-Webster Online Dictionary, http://www.merriamwebster.com/dictionary/masturbation (last visited Sept. 4, 2015). Other definitions of “masturbation” do not even mention “orgasm.” For example, Oxford Dictionaries defines “masturbation” simply as “[s]timulation of the genitals with the hand for sexual pleasure.” Oxford Dictionaries Online,http://www.oxforddictionaries.com/us/definition/american_english/masturbation (last visited Sept. 28, 2015). Cambridge Dictionaries defines “masturbate” as “to touch or rub your sexual organs in order to give yourself pleasure.” Cambridge Dictionaries Online, http://dictionary.cambridge.org/dictionary/english/masturbate?q=masturbation (last visited Sept. 28, 2015).
The appellant has cited to no definition of “masturbation,” and we have found none, that requires an intent to reach orgasm. The definition provided by the trial court was very similar to the Merriam-Webster definition. It did not mislead the jury as to the applicable law, nor did it fail to fairly submit the legal issue. Therefore, the trial court‟s supplemental instruction was not erroneous...
Regarding the appellant‟s claim that the evidence is insufficient to support his indecent exposure conviction because the proof fails to show he was masturbating, count one of the indictment alleged that the appellant “unlawfully in a public place, Sears Department Store, did intentionally expose his genitals to another during the act of masturbation, and reasonably expects that the acts will be viewed by another, and the acts will offend the ordinary viewer[.]” However, the State was not required to show that the appellant engaged in masturbation in order to prove indecent exposure. Therefore, the language “during the act of masturbation” was mere surplusage and did not add to the State‟s burden of proof at trial.
The court found sufficient evidence to support the conviction.
The defendant got 90 days for the missdemeanors.
WRCBtv reported on more recent exposure charges against the defendant. (Mike Frisch)
Wednesday, October 7, 2015
A woman named Lauren Proctor and an insurance company filed a suit to recover gambling losses in a case decided today by the South Carolina Supreme Court
Lauren Proctor and Trans-Union National Title Insurance Company ("Trans-Union") brought this action against Whitlark & Whitlark, Inc., d/b/a Rockaways Athletic Club ("Rockaways") and Pizza Man, Forrest Whitlark, Paul Whitlark, Charlie E. Bishop, and Brett Blanks (collectively "Defendants") seeking to recover money Proctor lost while gambling on video poker machines located at Rockaways and Pizza Man over the course of several years, including a time period following the South Carolina Legislature's ban of video poker in 2000. The circuit court granted Proctor's motion for partial summary judgment on her claim under the South Carolina Unfair Trade Practices Act ("UTPA") as to the liability of Defendants...
We find our Legislature has enacted specific gambling loss statutes as the exclusive remedy for a gambler seeking recovery of losses sustained by illegal gambling. Accordingly, we now overrule our decisions that have implicitly authorized recovery beyond these statutes. As a result, we hold that one engaged in illegal gambling cannot recover under UTPA. However, based on the distinct facts of this case, we find that Proctor may pursue the portion of her UTPA claim for the losses she alleged that she sustained between 1999 and July 1, 2000, the day on which the ban on video poker became effective.
Beginning in 1995, Proctor started gambling on video gaming machines at various restaurants and bars in Columbia, South Carolina. From 1999 to 2005, Proctor frequently gambled on video poker machines located in Rockaways and Pizza Man, which are operated by Whitlark & Whitlark, Inc. ("Whitlark"). Forest Whitlark and Paul Whitlark are part owners of Whitlark. At the time, Charlie E. Bishop and Brett Blanks co-owned a limited liability company named Zodiac Distributing, LLC, which placed one coin-operated gaming machine at the Pizza Man restaurant.
According to Proctor, she lost between $1,000 and $5,000 per week while gambling at the restaurants. Proctor claimed the two restaurants provided her cash advances on her credit cards to enable her to fund her gambling, as well as free food, alcohol, and cocaine.
Proctor also funded her gambling with money illegally obtained from her employer State Title, which her mother owned. State Title provided real estate closing services to attorney Walter Smith. During the time period at issue, Proctor forged her mother's name on checks and stole money from Smith's trust account in order to play the video poker machines. As a result of Proctor's actions, Smith's trust account contained insufficient funds to satisfy the mortgages on several properties at closing. In turn, Trans-Union paid approximately $550,000 in claims stemming from the shortages in Smith's trust account.
The court held
Proctor is only entitled to seek recovery for those losses that were allegedly sustained prior to July 1, 2000, the effective date of the ban on video poker. In her pleadings, Proctor alleged that she sustained gambling losses "[b]eginning in 1999, and continuing until June 2005." Because it was legal for Proctor to engage in video poker prior to July 1, 2000, we find that she may pursue her UTPA claim for gambling losses allegedly sustained between 1999 and July 1, 2000. We emphasize that this case was presented in the posture of a summary judgment motion. Thus, Proctor still bears the burden of proving her alleged damages.
Chief Justice Toal concurred and dissented and would allow Proctor to pursue claims based on all her losses despite the view that she is "not a sympathetic figure..."
The attorney whose escrow account was invaded was suspended in 2006. (Mike Frisch)
Thursday, July 30, 2015
The Mississippi Supreme Court has held that a person found not incompetent to stand trial on charges that he had murdered his mother is not necessarily precluded from recovery by the Slayer Statute.
Based upon this Court’s holding that the Slayer Statute requires a finding of willful conduct in order to preclude a person from inheriting from his or her victim, this judgment is reversed and the case is remanded for a hearing to determine John’s mental status at the time of the murder and whether he wilfully caused Joan’s death. The Slayer Statute will be applicable only if it is proven that, at the time of the murder, John’s actions were willful. The chancellor is instructed that “ all evidence which will throw any light on the issue of whether or not this killing was willful is competent and admissible.” Henry, 50 So. 2d at 923.
John R. Armstrong, a severely mentally ill man, killed Joan Armstrong, his eighty-year-old mother. This fact is not disputed by any party. The Circuit Court of Jackson County determined that John was not competent to stand trial for the murder of Joan, and John was committed to the state hospital at Whitfield, where he resides today. Based on the Slayer Statute, John’s four siblings requested that the devise to John in their mother’s will be declared void.
...On August 7, 2010, Joan Armstrong was contacted by several of her son’s neighbors, who were worried about their children’s safety, after they noticed John acting erratically. John had a long history of serious mental illness, having been treated since 1989.1 Joan picked up John at his apartment and brought him back to her condominium. Joan had invited some of her friends to come over to the condominium swimming pool. Worried that his mother was leaving him, John went upstairs and retrieved a crochet-covered brick, which he used to hit Joan repeatedly over the head. He then moved her body to the bathroom and repeatedly stabbed her. He informed law enforcement officers from the Ocean Springs Police Department (OSPD) that he was preparing her body to be buried by bleeding her.
He is being held pending a finding that he is competent to be tried. (Mike Frisch)
Friday, June 26, 2015
The Iowa Supreme Court reversed the Court of Appeals and reinstated a second degree murder conviction, rejecting a claim of juror bias.
The juror had disclosed that she knew and was Facebook friends with a relative of the victim but
there is no evidence the juror provided false testimony during voir dire...
Webster’s lawyer elected not to thoroughly explore the nature of the relationship, including the intriguing mention that she and Frisbie’s stepmother were friends on Facebook. Instead, Webster’s counsel asked a series of questions that seemed more designed to rehabilitate the juror than challenge her. At the conclusion of the hearing, Webster did not challenge the juror for cause. Based on the record before us, we cannot conclude the juror engaged in misconduct by lying during the in camera hearing.
This was of some concern
That brings us to the most troublesome point in the case. There is some suggestion the juror, after the in camera inspection but prior to the verdict, clicked “like” on a Facebook comment by the victim’s stepmother which stated, “Give me strength.” A juror who directly violates the admonitions of the court and communicates with the mother of a crime victim about a case certainly raises questions about her ability to be an impartial juror. This action occurred after voir dire and apparently after the in camera hearing. Thus, Webster has not waived his bias challenge based upon this event, which would not have been uncovered through diligent use of ordinary trial processes. However, the record here does not disclose the court’s initial admonition or when the juror clicked “like.” In any event, while the short form admonition to the jury in the record indicated that the juror should not communicate with parties and witnesses about the case, the juror apparently thought (erroneously) that merely clicking “like” on Facebook was not a “communication.” Moreover, the communication did not relate to the guilt or innocence of the accused, but only showed a degree of empathy for a grieving stepmother who lost her son. A juror who does not have empathy for a grieving mother whose son was a homicide victim would be awfully cold hearted. If we disqualified jurors because they empathized with the family of crime victims, we would have no jurors...
Notwithstanding our resolution of the issues in this appeal, we do not approve of the juror’s conduct in this case. While the click of the mouse does not require reversal of Webster’s criminal conviction, it is troublesome nevertheless. While it did not occur in this case, a single click of the mouse on Facebook can trigger cascading responses. Further, messages posted on Facebook may be viewed by many persons, generating a perception of a miscarriage of justice. In the future our district courts would do well to recognize that in this day and age, our jurors are part of the new electronic world. This can pose a problem in our jury trials. We have held that the click of the mouse in this case was not misconduct sufficient to require a new trial...
The court provides a useful summary of the emerging body of case law and scholarship on social media and juror misconduct. (Mike Frisch)
Wednesday, June 24, 2015
An opinion from the Oklahoma Supreme Court
The issue before this Court is whether the district court erred in sustaining the legal parent's motion to disqualify opposing counsel. The question we consider is whether the integrity of the judicial process is likely to suffer real harm when an attorney who represents a client in a proceeding to establish paternity and to determine custody of a minor child fails to report suspected child abuse to the proper authorities as required by statute, conducts a forensic interview of the child to obtain evidence to support the client's position, does not obtain the legal parent's permission prior to the interview, and files his own affidavit attesting to the credibility of the child's affidavit. We find that the district court did not err in sustaining the motion to disqualify opposing counsel when the attorney likely compromised the legal parent's right to a fair proceeding by contaminating the fact-finding procedure and by establishing a relationship of undue influence with the child...
Attorney inserted himself into the paternity proceeding as a forensic interviewer, interviewed a minor child without parental consent, and submitted a signed affidavit attesting to Child's credibility. Attorney and Child were the only persons present during the interview. Thus, Mother's only option to rebut the evidence presented in Child's affidavit, to ascertain what type of relationship Attorney may have established with Child during the interview, and to determine if Attorney distorted Child's recollections by suggestive or leading questions would be to call Attorney as a witness to Child's credibility. Were Attorney to testify at trial, the integrity of the judicial process would be harmed in all the ways Rule 3.7 is designed to protect against: (1) Attorney's interest in winning the case for Client would call into question his objectivity as a witness, (2) Attorney's dual role as advocate-witness could confuse the factfinder, and (3) public confidence would be shaken were Attorney allowed to interview Child without parental consent.
A lawyer is not prohibited from interviewing a child witness, and nothing in this opinion should be construed to prevent an attorney from interviewing a child witness. However, if an interview scenario results in circumstances similar to those here, then he or she is no longer able to continue as an attorney in that particular case. A lawyer in a proceeding to establish paternity and to determine custody of a minor child who ignores his statutory duty to report suspected child abuse, inserts himself into the role of forensic interviewer, interviews the minor child without the legal parent's consent, likely taints the fact-finding process with improper interviewing techniques, likely establishes a relationship of undue influence with the child witness, and submits affidavits attesting to a fact witness's credibility should be disqualified from all aspects of the proceeding. Mother proved by a preponderance of the evidence that Attorney's continued representation will likely cause real harm to the integrity of the judicial process. We affirm the district court's order sustaining the motion to disqualify counsel and remand for further proceedings. Attorney is disqualified not only from acting as an advocate at trial, but also from acting as an advocate in all aspects of the underlying proceeding.
There is a concurring/dissenting opinion that would disqualify counsel but not impose the "blanket restrictions" of the majority opinion.
While I concur that under the particular circumstances, the attorney in this case should be disqualified; I do not believe lawyers should be per se prohibited from interviewing a child witness in custody disputes. Of paramount importance in any legal decision affecting the welfare of a child is consideration of his or her best interests. The majority opinion renders this basic principle subservient to the mother's custodial rights and the majority's perceived transgression of ethical boundaries governing attorney conduct...
the abuse suffered by the minor child in this case was shocking. So much so, the trial court issued an emergency order placing custody of the child with father--a direct result of the efforts undertaken by counsel and father. There were allegations the step-father drank excessively, hit the minor child, and imposed inappropriate discipline such as forced calisthenics. Additionally, it was suggested mother inflicted undue physical punishment on her son. However, the real issue presented in the trial court was the sexual abuse endured by this child. Although mother and step-father were not the perpetrators, mother had knowledge of the child's illicit encounters. She discovered the molestation and notified father. However, she apparently did not fully disclose the severity of the situation and urged him not to confront the child. On January 11, 2014, the child voluntarily disclosed the ongoing sexual activity to his father.
The father's efforts to get help through public agencies failed
After receiving no assistance from DHS and weighing the urgency of the situation, father sought to protect his son by contacting his attorney. While the attorney's interview in this case may have exceeded what was necessary, there is no ethical proscription which forbids attorney interviews of children. Moreover, at the time the child was not represented by counsel and a guardian ad litem had not been appointed. Inherent in a lawyer's responsibilities is the obligation to thoroughly evaluate the facts of each case. This includes seeking information through witness interviews. It should be noted that [attorney] Thomas served as a Tulsa County Sherriff's Deputy for ten years prior to entering law school. During his service, Mr. Thomas interviewed numerous victims of criminal acts, including child and domestic abuse.
Monday, June 8, 2015
The Connecticut Appellate Court affirmed the imposition of punitive damages in a case where the plaintiff had given donations for chapel construction under the false belief that the defendant was a Benedictine monastery.
The Diocese of Norwich had issued a pious union decree in 1979 but the decree did not lead to recognition by the church.
Pursuant to that decree, the union consisted of ‘‘Sister Mary Peter [also known as Dorothy Jordan], professed Sister of the Benedictine Community in Stillwater, Massachusetts and one secular Oblate, Eleanor J. Tremko, by name.’
The plaintiff's story
After her initial visit to the defendant in August, 2008, the plaintiff quickly became involved in all of its activities...She participated in bible study groups and various fundraising events, mostly with the goal of raising the money to build the new chapel. She developed a close relationship with women she believed to be Roman Catholic nuns who were involved with the defendant, including Jordan, whom she respected. On August 23, 2009, because she had been spending so much time with and contributing financially to the defendant, the plaintiff transferred her oblation from the monastery in Nebraska to the defendant.
An "oblate" is defined
Sister Sally J. Tolles, a canon and civil lawyer employed by the diocese, testified at trial that oblates are ‘‘laypeople who associate themselves with monasteries or abbeys or priories in order to say that they will help in a spiritual way or in a financial way with the needs of the community . . . .’’
The defendant had never been accorded recognized Benedictine status
On February 17, 2011, Bishop Cote sent a letter to the plaintiff advising her, among other things: that the defendant was not, and never had been, a Benedictine monastery; that the residents at Mount Caritas were not Benedictine sisters; that the defendant did not have permission from the diocese to build a Roman Catholic chapel; and that the defendant did not have permission to solicit money or to sell items in any Roman Catholic parish in the diocese. The plaintiff testified that this was the first time that she had heard anything disputing the defendant’s status as a monastic community. Upon receipt of the bishop’s letter, the plaintiff was in disbelief. Based on the pious union decree that Jordan had shown her, along with Jordan’s prior representation she plaintiff believed that the defendant had been a monastery for thirty-five years.
The record in this case is replete with evidence of the defendant’s portrayal of itself as a Roman Catholic Benedictine monastery. The record is likewise laden with evidence that Jordan knew that the defendant was not, in fact, a Roman Catholic Benedictine monastery. The plaintiffs testified that they would not have given money to the defendant if they had known that it was not a Roman Catholic institution. Although Jordan apprised the plaintiff of the contentious relationship between the defendant and the diocese, and the plaintiff later was informed by the diocese that the defendant was not a Roman Catholic Benedictine monastery, Jordan repeatedly assured the plaintiff that the diocese was lying. The plaintiff continued to trust Jordan and thus continued to fund the construction of the chapel.
The court respected the jury verdict
The jury reasonably could have concluded that the defendant repeatedly and intentionally, over a period of years, misrepresented itself to the plaintiff as a Roman Catholic Benedictine monastery, knowing that that was the type of community that she was searching for in which to continue her work as an oblate. The evidence amply supported a finding that the defendant intentionally misrepresented its status to induce the plaintiffs to fund the construction of the chapel, and that, in so doing, it displayed a reckless indifference to the rights of the plaintiffs. We therefore conclude that the court did not abuse its discretion in denying the defendant’s motion to set aside the verdict with respect to the plaintiffs’ entitlement to punitive damages.
The Hartford Courant had this story.
The trial court decision is linked here. (Mike Frisch)
Thursday, April 23, 2015
An interesting decision on authentication of documents from social media from the Maryland Court of Appeals
We shall hold that, in order to authenticate evidence derived from a social networking website, the trial judge must determine that there is proof from which a reasonable juror could find that the evidence is what the proponent claims it to be. We shall hold in Sublet that the trial court did not err in excluding the admission of the four pages of the Facebook conversation. We shall hold in Harris that the trial court did not err in admitting the “direct messages” and “tweets” in evidence. We shall also hold in Monge-Martinez that the trial court did not err in admitting the Facebook messages authored by Monge-Martinez.
The court resolved three criminal cases in its decision.
There is a concurring and dissenting opinion.
Use of social media as evidence in civil and criminal trials is likely to become increasingly important. Today we advanced our jurisprudence by adopting the “reasonable juror” standard and holding that circumstantial evidence can be sufficient to authenticate social media evidence. But the Majority set bad precedent in holding that a trial judge can establish such a high bar for authentication as the court did in the Sublet case. The Majority muddled our “reasonable juror” standard by refusing to accept Facebook posts as authenticated, based on an undisputed admission by the witness that she made posts referring to the fight at the party in a Facebook conversation with friends the day after the party, but denying the posts on the same topic occurring shortly thereafter. We would enunciate a clearer standard and advance the law more profitably if we affirmed the trial court rulings in Harris and Monge-Martinez, but reversed the trial court in Sublet.
Sunday, April 19, 2015
The Delaware Court of Chancery has held that a man had capacity to lavish gifts on a much younger woman.
Since the time of King David and Abishag—and, surely, before—certain old men have pursued an interest in certain young women. Sometimes, as in that case, the relationship is one of a powerful man and an exploited woman. Sometimes, it represents, no doubt, a May-December mutual romance, or at least a mercenary exchange of value for value. In other cases, however, it involves exploitation of an elderly and vulnerable benefactor. This case involves a relationship that quickly arose between a moderately well-to-do recent widower in his mid-eighties and a diner waitress of an age to be his granddaughter. The Petitioners—the old man’s heirs, trust and estate—allege the relationship is of the third variety described above; the Respondent contends it belongs in the second category.
During a fourteen-month relationship, George Reed, Jr. (“George Jr.”) lavished gifts on the Respondent, Lisa Grandelli, ranging from a few hundred dollars to a pickup truck costing over $30,000. He also paid cash—nearly a quarter-million dollars—for a condominium in Rehoboth Beach, titled jointly with Lisa with right of survivorship. The Petitioners, George Jr.’s estate, his trust and the beneficiaries of his will, seek, principally through imposition of equitable remedies, to recoup the value of these gifts.
Individuals are presumed competent unless proven otherwise, and are free to deploy their assets, wisely or foolishly, as they see fit. Equity may act in appropriate cases to remedy breaches of fiduciary duty or oppression, or to carry out the true intent of parties. If, however, equity were empowered to remedy every improvident expenditure in aid of unrequited love or misplaced desire, Delaware would need a Chancery Courthouse on every corner.
Lisa must account for the condo and pay back the estate for a Key West jaunt that was financed under false pretenses (her testimony on that issue was "a concatenation of self-serving lies").
The concluding lament
George Jr.’s heirs are upset that in the last months of his life, their father lavished expensive gifts on a much younger woman. Their position is natural; frankly, this is a case that was neither a pleasure to hear or write on. As a competent individual, however, George Jr.’s choices were his to make. Lisa, on the other hand, has treated as her own a condominium unit owned in common with George, Jr.’s Trust, for which she must account. In addition, loans made to her by George Jr. must be repaid, together with amounts to pay for the Key West trip, which she received based on false representations. The parties should submit an appropriate form of order. Each party must bear its own fees and costs.
Friday, April 3, 2015
The Georgia Supreme Court held that the subject of an internet campaign is not entitled to injunctive relief as the posts about her were not "contact" and thus not prohibited stalking
Matthew Chan has a website on which he and others publish commentary critical of copyright enforcement practices that they consider predatory. Linda Ellis is a poet, and her efforts to enforce the copyright in her poetry have drawn the ire of Chan and his fellow commentators. On his website, they have published nearly 2,000 posts about Ellis, many of which are mean-spirited, some of which are distasteful and crude, and some of which publicize information about Ellis that she would prefer not to be so public. At least one post is written in the style of an open letter to Ellis, referring to her in the second person, and threatening to publicize additional information about Ellis and her family if she continues to employ the practices of which Chan and the other commentators disapprove. It is undisputed that Chan never caused any of these posts to be delivered to Ellis or otherwise brought to her attention. But it also is undisputed that Chan anticipated that Ellis might see the commentary on his website, and he may have even intended that she see certain of the posts, including the open letter to her.
No relief was granted because
the commentary about which Ellis complains was posted on Chan’s website, and Ellis learned of that commentary— that is, it arguably was communicated to her — only as a result of her choice to discover the content of the website. The evidence shows that Ellis visited the website herself — it appears, in fact, that she registered herself as an authorized commentator on the website — and that she had others visit the website and report back to her about the commentary published there. Generally speaking, our stalking law forbids speech only to the extent that it is directed to an unwilling listener and even if Ellis did not likewhat she heard, she cannot be fairly characterized as an unwilling listener. Ellis failed to prove that Chan “contacted” her without her consent, and the trial court erred when it concluded that Chan had stalked Ellis.
Tuesday, March 31, 2015
Herbert M. Kritzer (U. Minn., Law) has published a new volume Lawyers at Work, collecting and updating his 35 years of empirical and theoretical study of attorneys in action, including daily office work, use of expert witnesses, contingency fees, "professionalism," sanctions, and international comparisons. He's known as one of the most insightful and sustained researchers in law and political science on the legal occupation and professional literature. The book is published as part of my Quid Pro Books project and is found as such places as Amazon and Barnes & Noble, in print (hardcover and paperback) and ebooks. (Alan Childress)
Tuesday, March 17, 2015
The New Jersey Supreme Court has held that the state's bias crime statute is unconstitutionally vague.
The facts from the case headnote
Defendant David Pomianek, Jr., co-defendant Michael Dorazo, Jr., and Steven Brodie, Jr., worked for the Parks and Recreation Division of the Gloucester Township Department of Public Works. Defendant and Dorazo, who are Caucasian, worked as truck drivers. Brodie, who is African-American, worked as a laborer. On April 4, 2007, these men were assigned to work at an old garage used for storage by Public Works. In the garage was a sixteen-foot long and eight-foot wide steel storage cage. The cage was enclosed by a heavy chain-link fence on three sides and a cinder block wall on the fourth side and was secured by a sliding chain-link door with a padlock. A number of employees were horsing around in the building and "wrestling" in the cage. In a ruse, Dorazo approached Brodie and told him that their supervisor needed an item from the cage. Once inside the cage, Dorazo shut the cage door, locking Brodie inside.
A number of Public Works employees began laughing, but Brodie found no humor in his predicament. Brodie recalled defendant saying, "Oh, you see, you throw a banana in the cage and he goes right in," which triggered more laughter among the men. Brodie considered the remark to be "racial" in nature. From his perspective, the line about "throwing the banana in there" was like "being called a monkey in a cage." Brodie admitted, however, that he never heard defendant call him a monkey. The cage door was unlocked after three to five minutes. Brodie felt humiliated and embarrassed. After his release, Dorazo was heard saying, "You all right, buddy? We were just joking around." Brodie replied, "Yeah, yeah, I’m fine."
The incident led to a 16 count indictment and conviction on the bias charges.
At issue in this appeal is the constitutionality of N.J.S.A. 2C:16-1(a)(3), a bias-crime statute that allows a jury to convict a defendant even when bias did not motivate the commission of the offense. Under the statute, a defendant may be convicted of bias intimidation if the victim "reasonably believed" that the defendant committed the offense on account of the victim’s race. Unlike any other bias-crime statute in the country, N.J.S.A. 2C:16-1(a)(3) focuses on the victim’s, not the defendant’s, state of mind. The defendant’s fate depends not on whether bias was the purpose for the commission of the crime but on whether the victim "reasonably believed" that was the purpose. Whether a victim reasonably believes he was targeted for a bias crime will necessarily be informed by the victim’s individual experiences and distinctive cultural, historical, and familial heritage –- all of which may be unknown or unknowable to the defendant.
Although a jury found defendant David Pomianek, Jr., guilty of the disorderly persons’ offense of harassment, it found him not guilty of purposely or knowingly harassing the victim because of the victim’s race or color. The jury, however, convicted defendant of bias harassment on the ground that the victim either "reasonably believed that the harassment was committed with a purpose to intimidate him" or that "he was selected to be the target [of harassment] because of his race [or] color." Based on the bias-intimidation verdict, defendant was also convicted of official misconduct.
The Appellate Division reversed the bias-harassment conviction. It concluded that a conviction "based on the victim’s perception" and not on the "defendant’s biased intent" would violate the First Amendment of the United States Constitution. State v. Pomianek, 429 N.J. Super. 339, 343, 358-59 (App. Div. 2013). To save N.J.S.A. 2C:16-1(a)(3), the Appellate Division rewrote the statute to impose a state-of-mind requirement and remanded for a new trial on both bias harassment and official misconduct. Id. at 343-44.
We hold that N.J.S.A. 2C:16-1(a)(3), due to its vagueness, violates the Due Process Clause of the Fourteenth Amendment. In focusing on the victim’s perception and not the defendant’s intent, the statute does not give a defendant sufficient guidance or notice on how to conform to the law. That is so because a defendant may be convicted of a bias crime even though a jury may conclude that the defendant had no intent to commit such a crime. We are therefore constrained to reverse...
The decision is unanimous. (Mike Frisch)
Wednesday, February 11, 2015
The New York Appellate Division for the First Judicial Department affirmed the dismissal of a suit brought against Vanity Fair.
Plaintiff failed to state a cause of action for defamation based on allegedly false and disparaging statements in an article published in the September 2010 issue of Vanity Fair ("Cassini Royale") that reports on plaintiff's secret marriage to the late designer, Oleg Cassini, and her conduct in litigation concerning his estate. Contrary to plaintiff's contention, the allegedly defamatory statements, including a quoted statement that plaintiff and her sisters used to throw parties in the 1960s that were attended by many wealthy "older guys looking for action," do not imply that plaintiff was a prostitute and lacked sexual morals. Given the overall context in which the statements were made, a reasonable reader would not conclude that plaintiff was a prostitute or otherwise unchaste. Nor were the statements so "extreme and outrageous" that they would support an action for infliction of emotional distress (citations omitted).
Friday, January 23, 2015
The Washington State Supreme Court has held
The city of Yakima claims the protection of statutes that were designed to protect the rights of those who engage in First Amendment protected communicative activity. U.S. CONST. amend. I. Those statutes-Washington's "anti -SLAPP" laws-protect speakers against frivolous, speech-chilling lawsuits. We hold that a governmental entity like Yakima cannot take advantage of the anti-SLAPP statutes at least where, as here, the challenged lawsuit is not based on the government's own communicative activity. We reverse the Court of Appeals' decision to dismiss as moot Yakima's appeal of the trial court's decision to deny Yakima's anti-SLAPP motion. Instead, we hold that the case is ripe for review and reinstate the trial court's decision to deny Yakima's antiSLAP motion.
The case involves an employment claim by the police officer contending that he had been subjected to a hostile workplace as a result of internal investigations into complaints filed by fellow officers. (Mike Frisch)
Thursday, January 15, 2015
The Florida Supreme Court has approved an ethics opinion dealing with whether providing medicaid advice violates prohibitions on the unauthorized practice of law
the Florida Bar Elder Law Section’s Unlicensed Practice of Law Subcommittee petitioned the Florida Bar’s Standing Committee on the Unlicensed Practice of Law (Standing Committee) for an advisory opinion on whether it constitutes the unlicensed practice of law for a nonlawyer to engage in the following Medicaid planning activities leading up to the Medicaid application: (1) drafting of personal service contracts; (2) preparation and execution of qualified income trusts; or (3) rendering legal advice regarding the implementation of Florida law to obtain Medicaid benefits.
It is the opinion of the Standing Committee that it constitutes the unlicensed practice of law for a nonlawyer to draft a personal service contract and to determine the need for, prepare, and execute a Qualified Income Trust including gathering the information necessary to complete the trust. Moreover, a nonlawyer should not be authorized to sell personal service or Qualified Income Trust forms or kits in the area of Medicaid planning.
It is also the opinion of the Standing Committee that it constitutes the unlicensed practice of law for a nonlawyer to render legal advice regarding the implementation of Florida law to obtain Medicaid benefits. This includes advising an individual on the appropriate legal strategies available for spending down and restructuring assets and the need for a personal service contract or Qualified Income Trust.
It is the position of the Standing Committee that a nonlawyer’s preparation of the Medicaid application itself would not constitute the unlicensed practice of law as it is authorized by federal law. As noted earlier, it is also not the unlicensed practice of law for DCF staff to tell Medicaid applicants about Medicaid trusts and other eligibility laws and policies governing the structuring of income and assets when relevant to the applicant’s facts and financial situation.
The court order states that the inquiry was a result of activities of the Forida Department of Children and Families.
The opinion has the force and effect of the court's orders. (Mike Frisch)
Tuesday, November 18, 2014
The double parker is not always responsible for any accident that results from being double parked, according to a decision from the jurisdiction most likely to deal with double parkers.
The New York Appellate Division for the First Judicial Department affirmed summary judgment for the double parker
The fact that a vehicle is double parked "does not automatically establish that such double parking was the proximate cause of the accident" (DeAngelis v Kirschner, 171 AD2d 593, 595 [1st Dept 1991]). Here, plaintiff established her prima facie entitlement to summary judgment by demonstrating that the location of her vehicle merely furnished the condition or occasion for the occurrence of the event but was not one of its causes...
The record demonstrates that plaintiff's vehicle was double parked on a one way street. Defendants' vehicle, moving in the same direction, successfully passed plaintiff's vehicle on the left and pulled approximately three to four car lengths in front of it before stopping. One to two seconds later, defendants' vehicle drove in reverse in an erratic manner and struck the front of plaintiff's car, which was stationary at all times. According to plaintiff, while defendants' vehicle was moving in reverse towards her vehicle, she had her foot on the brake and sounded her horn. Defendants' vehicle did not stop, and plaintiff had no time to react before the collision. After the accident, the driver of defendants' vehicle told plaintiff that he was sorry, that the accident was his fault, and that he was having an argument with his passenger and had accidently backed up into plaintiff's vehicle.
No mention whether George Costanza had anything to do with this. (Mike Frisch)