Source: http://news.feedzilla.com/en_us/stories/law/video/377968365?client_source=feed&format=rss
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Monday, June 9, 2014
EEOC briefs on line
This is pretty cool.
EEOC briefs are now on line. [Here]
They cover briefs filed in the US Circuit Courts of Appeals in which the EEOC was a party, plus amicus briefs filed in the US Circuit Courts of Appeals, District Courts, and state courts.
And there is a user-friendly search function.
Briefs filed in the US Supreme Court are not in this collection, and can be found through the US Solicitor General's collection [here].
Source: http://www.lawmemo.com/blog/2012/06/eeoc_briefs_on.html
Gideon’s Promise: Do Low Pay and Heavy Workloads Undermine the Right to Counsel?
In its landmark 1963 decision Gideon v. Wainwright, the Supreme Court mandated the right to counsel in federal and state criminal proceedings. Fifty-one years after that unanimous decision, some question whether Gideon's promise has been fulfilled, as public defenders struggle against heavy caseloads, limited resources and low pay. On this episode of Lawyer2Lawyer, hosts Bob Ambrogi and J. Craig Williams interview Jonathan Rapping, founder of the Atlanta-based public defender training program Gideon's Promise, and Dawn Porter, director and producer of the documentary Gideon's Army. Together they discuss the daily rigors faced by public defenders in the south, their personal beliefs about unequal access to justice, and their ideas about how to better deliver on the promise of Gideon.
Jonathan Rapping is the president and founder of Gideon's Promise, a training and support group for public defenders in the south aimed at creating greater access to justice for indigent defendants. He is also the director of the Honors Program in Criminal Justice at Atlanta's John Marshall Law School, where he teaches criminal law and criminal procedure. Rapping is the former director of public defender training programs in the District of Columbia, Georgia, and Louisiana. He is the recipient of the Lincoln Leadership Award from Kentucky's Department of Public Advocacy, the Sentencing Project Award from the National Association of Sentencing Advocates and Mitigation Specialists, and the Gideon's Promise Award from the Southern Center for Human Rights.
Dawn Porter is a lawyer and the founder of Trilogy Films. She was the director and producer of the award-winning Gideon's Army, a documentary about public defenders associated with Gideon's Promise, which premiered at the 2013 Sundance Film Festival and aired on HBO Documentary Films. Prior to beginning her film and television career, Porter worked as an attorney at Baker and Hostetler and ABC Television Network. Among her many projects, she directed "Spies of Mississippi," a documentary on PBS about celebrity Chef Alexandra Guarnaschelli; produced "Serious Moonlight" starring Meg Ryan and Timothy Hutton; and produced "The Green," an independent feature starring Cheyenne Jackson (from 30 Rock) and Emmy-winning actress Julia Ormond.
Special thanks to our sponsor, Clio.
Jonathan Rapping is the president and founder of Gideon's Promise, a training and support group for public defenders in the south aimed at creating greater access to justice for indigent defendants. He is also the director of the Honors Program in Criminal Justice at Atlanta's John Marshall Law School, where he teaches criminal law and criminal procedure. Rapping is the former director of public defender training programs in the District of Columbia, Georgia, and Louisiana. He is the recipient of the Lincoln Leadership Award from Kentucky's Department of Public Advocacy, the Sentencing Project Award from the National Association of Sentencing Advocates and Mitigation Specialists, and the Gideon's Promise Award from the Southern Center for Human Rights.
Dawn Porter is a lawyer and the founder of Trilogy Films. She was the director and producer of the award-winning Gideon's Army, a documentary about public defenders associated with Gideon's Promise, which premiered at the 2013 Sundance Film Festival and aired on HBO Documentary Films. Prior to beginning her film and television career, Porter worked as an attorney at Baker and Hostetler and ABC Television Network. Among her many projects, she directed "Spies of Mississippi," a documentary on PBS about celebrity Chef Alexandra Guarnaschelli; produced "Serious Moonlight" starring Meg Ryan and Timothy Hutton; and produced "The Green," an independent feature starring Cheyenne Jackson (from 30 Rock) and Emmy-winning actress Julia Ormond.
Special thanks to our sponsor, Clio.
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Paralegals: What If Your Client Claims Innocence?
Despite US notions of innocence until proven guilty beyond a reasonable doubt, many innocent people have been sent to prison for lengthy to life sentences. Common reasons for these wrongful convictions are faulty eyewitness accounts, use of "junk" science as evidence, and informants with conflicts of interest. On this episode of The Paralegal Voice, host Vicki Voisin interviews Professor Marla Mitchell-Cichon from the Cooley Innocence Project at the Thomas M. Cooley Law School. Together they discuss the Innocence Project and the Post Conviction DNA Testing Statutes that opened the door for exoneration of the innocent around the country. Furthermore, we discover how the convicted innocent have less help than guilty parolees upon their release. Tune in to learn more about coerced confessions, bad actors who cause false convictions, and what remedies the wrongfully convicted have.
Professor Marla Mitchell-Cichon began her teaching career in 1986, following service as a public defender. Her clinical teaching includes post-conviction, criminal defense, general civil practice, elder law and externship. Professor Mitchell began teaching in Cooley's Innocence Project in 2002. She serves as the project's co-director. In 2006, Professor Mitchell received the Justice For All award from the Criminal Defense Attorneys of Michigan for her Innocence Project work. Professor Mitchell's litigation experience includes practicing before the U.S. Court of Appeals for the Sixth Circuit, the Ohio Supreme Court, and trial and appellate courts in Ohio and Michigan. Professor Mitchell's publications are in the areas of criminal law, elder law, ethics, and clinical teaching.
Special thanks to our sponsors, NALA and ServeNow.
Professor Marla Mitchell-Cichon began her teaching career in 1986, following service as a public defender. Her clinical teaching includes post-conviction, criminal defense, general civil practice, elder law and externship. Professor Mitchell began teaching in Cooley's Innocence Project in 2002. She serves as the project's co-director. In 2006, Professor Mitchell received the Justice For All award from the Criminal Defense Attorneys of Michigan for her Innocence Project work. Professor Mitchell's litigation experience includes practicing before the U.S. Court of Appeals for the Sixth Circuit, the Ohio Supreme Court, and trial and appellate courts in Ohio and Michigan. Professor Mitchell's publications are in the areas of criminal law, elder law, ethics, and clinical teaching.
Special thanks to our sponsors, NALA and ServeNow.
Source: http://legaltalknetwork.com/podcasts/paralegal-voice/2014/04/paralegals-client-claims-innocence
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Sunday, June 8, 2014
Give Me The Money, Or I Will Douse You With Water!
Of course the robber didn’t say it was a garden hose nozzle he was sticking in the manager’s back, but it was. As reported by WZVN (Florida):
Akeem Rendell Arnold, 23, of Naples, allegedly tried to steal over $14,000 shortly before [the CVS closed], according to a police report.
Police say Arnold wearing a mask and dressed in black approached the store manager, who is his brother, while he was outside taking the trash out.
Sticking up your brother? Not cool.
Arnold allegedly put what felt like a gun or knife to the manager’s back and told him to re-enter the store against his will at 294 9th street South, according to the police report.
Once inside the store, Arnold is accused of hitting the manager over the head with the garden hose nozzle, taking money from the store’s safe, and hog-tying him with a roll of plastic wrap.
So much for putting family first.
Arnold then made a run for it, and police apprehended him along US-41 with a backpack containing the money, the garden hose nozzle, a mask, bandana and multiple pairs of gloves.
Reports show it took two pepper sprays and handcuffs to get Arnold under control.
Click here for the source, including a mug shot.
Source: http://rss.justia.com/~r/LegalJuiceCom/~3/QYGIXsA-pPk/safd.html
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The End of Website Home Pages?
Does the standard approach to the website homepage still make sense in the era of social media? Some feel that the role of the homepage on your website has so diminished in importance (and traffic) that it is no longer relevant. Is it time for a new approach? In this episode of The Kennedy-Mighell Report, Dennis Kennedy and Tom Mighell discuss what people mean when they claim the website home page is dead, what role the standard website now plays, and what practical steps you might take to improve your web presence.
Special thanks to our sponsor, ServeNow.
Special thanks to our sponsor, ServeNow.
Source: http://legaltalknetwork.com/podcasts/kennedy-mighell-report/2014/06/end-website-home-pages
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Dry Times: How to Deal with the Impact of California’s Drought on Critical Commercial Agreements
On January 17, 2014, California Governor Jerry Brown declared a “State of Emergency” in California due to the severity of drought conditions across the State. Since then, the California drought continues to be severe and unprecedented in recent years, and is taking a pervasive toll on California residents, businesses, farm land, foliage and wildlife. Despite recent rainfall, local water districts and the State have called for voluntary, and in some locales, mandatory reduction in consumption of water. After considering the severe human toll, anyone doing business with an entity located in California (or other western states experiencing similar drought conditions) that requires water for any business purpose, particularly farmers in Northern and Central California where there are fewer alternative sources of water, must be concerned about inventory and the impact of the drought on its supply chain. Can my California contract counterparty fulfill its obligations to produce sufficient quantities of produce, dairy products, steel, flowers, honey, etc., to meet my contract needs? Waiting for a delivery that never arrives, is delayed or arrives in lower quantity or, worse yet, quality, is not a viable option. The key is to be prepared to find an alternative supplier so that production goals can be timely met. Successful navigation of these issues requires careful contract drafting and contemplation in advance of new agreements, and critical analysis of existing contracts. This article highlights the pertinent legal mechanisms at work and options for your business.
Section 2-609 of the Uniform Commercial Code (the “UCC”) follows the longstanding common law derived principle of allowing the concerned recipient of supplies to demand adequate assurance of its supplier’s ability to perform. The law adopted in most states provides that “when reasonable grounds for insecurity arise with respect to the performance of either party the other may in writing demand adequate assurance of due performance and until he receives such assurance may if commercially reasonable suspend any performance for which he has not already received the agreed return.” For purposes of Section 2-609, “reasonableness” will be “determined according to commercial standards” between merchants. A failure by the recipient of a justified demand for adequate assurance to provide such assurances within a reasonable time, not to exceed thirty days, will be treated as a repudiation of the contract.
The key for those seeking assurances of performance is to describe with as much specificity as possible the reasonable grounds for “insecurity.” In the case of the drought, one does not have to look far to find news articles describing the historic drought in significant detail and showing the hardest hit regions. The form of the demand need not be a formal lawyers’ letter, but can be a friendly request to a good, long term vendor asking for assurances that product of the quality and quantity the recipient has come to expect will continue to be delivered within the time expected. Setting a reasonable time frame for a response to the demand is also important and will depend upon the imminence of the need for or expected receipt of goods.
The form and clarity of the response will be key and is often heavily litigated. Anything short of a prompt promise by a supplier to meet delivery and production obligations is a red flag and may be grounds for termination of an existing contract to purchase goods from that supplier; however, an unjustified early termination of contract rights is a breach, so a party considering terminating a supplier under an agreed contract should consider the risks of termination, particularly where the supplier is attempting to retain the right to supply. Further, before demanding adequate assurance, the recipient may wish to investigate an alternative supply chain in case the response is insufficient and goods need to be reordered from another source.
Significantly, a supplier in dire financial straits that ends up in bankruptcy may still be the recipient of a demand for adequate assurance of its ability to perform. Indeed, asking a debtor in bankruptcy for adequate assurance of its ability to perform its contractual obligations is a prudent business approach, though the ability of the non-debtor contract party to terminate is limited (proceeding by motion before the bankruptcy court to terminate is often the appropriate option if adequate assurance is not received or if a debtor confirms that it cannot perform).
Where a contract calls not just for supplies but for services, contract parties should look beyond the UCC to the Restatement (Second) of Contracts (“Restatement”). Section 251 of the Restatement provides in part that “where reasonable grounds arise to believe that the obligor will commit a breach by non-performance that would of itself give the obligee a claim for damages for total breach,” then the “obligee may demand adequate assurance of due performance and may, if reasonable, suspend any performance for which he has not already received the agreed exchange until he receives such assurance.” In the Restatement, as in the UCC, failure to provide such assurance within a reasonable time is treated as a repudiation of the contract.
From the other perspective, a supplier who fears that it will be unable to meet the terms of its contract to supply goods in sufficient quantity, quality, or price, particularly where the costs of producing have markedly increased due to the impact of the drought, may attempt to invoke a claim of force majeure. Many contracts have a force majeure provision that excuses performance (or non-performance) upon the occurrence of events such as (i) acts of God (e.g., severe droughts and storms) and (ii) man-made events (e.g., wars or certain acts of governments). Employee strikes may also be viewed as a basis for a finding of force majeure in some contracts.
For the purposes of California law, the California Supreme Court gave the definitive definition of a force majeure in Pacific Vegetable Oil Corp. v. C. S. T., Ltd., 29 Cal. 2d 228 (1946). The Court explained that “‘Force majeure,’ or the Latin expression ‘vis major,’ is not necessarily limited to the equivalent of an act of God. The test is whether under the particular circumstances there was such an insuperable interference occurring without the party’s intervention as could not have been prevented by the exercise of prudence, diligence and care.” Id. at 238.
Additionally, acts of God can be involved in related “impossibility” scenarios. For example, in Squillante v. California Lands, Inc., 5 Cal. App. 2d 89 (1935), the California Court of Appeal excused a grower from having to deliver a full quantity of grapes under an excuse of impossibility due to drought conditions. There, the contract stipulated a certain quality and variety of grape. The drought made it impossible for that grower to grow grapes of the sufficient quality and variety, and therefore the court held that the grower could not be compelled to perform impossibilities and that it could not be held liable in damages for its failure to comply with the contract because the failure resulted from no fault of its own. (The court also stressed the importance of the “grower” not being a “dealer” of grapes, in that they suggest that a dealer may not have been so excused.) While this case dates from 1935, it is apparently still good law.
The scenarios above do not address the situation where a supplier is not necessarily prevented from supplying, but the cost of supplying increases so significantly higher than anticipated, that performance under the contract becomes commercially “impracticable.” While related to the concepts of force majeure and impossibility, impracticability is a distinct problem. Section 2-615 of the UCC provides that, absent a supplier assuming a greater obligation, “delay in delivery or non-delivery in whole or in part by a seller . . . is not a breach of his duty under a contract for sale if performance as agreed has been made impracticable by the occurrence of a contingency the non-occurrence of which was a basic assumption on which the contract was made or by compliance in good faith with any applicable foreign or domestic governmental regulation or order whether or not it later proves to be invalid.”
A successful defense of impracticability also requires that seller “notify the buyer seasonably that there will be delay or non-delivery,” and, in the case of reduced or limited capacity to perform, that the seller then allocate production and deliveries among his customers in a “fair and reasonable” manner.
In the Official Comments to UCC Section 2-615, the American Law Institute explained that generally, “increased cost alone does not excuse performance unless the rise in cost is due to some unforeseen contingency which alters the essential nature of the performance. Neither is a rise or a collapse in the market in itself a justification, for that is exactly the type of business risk which business contracts made at fixed prices are intended to cover. But a severe shortage of raw materials or of supplies due to a contingency such as war, embargo, local crop failure, unforeseen shutdown of major sources of supply or the like, which either causes a marked increase in cost or altogether prevents the seller from securing supplies necessary to his performance, is within the contemplation of this section” (emphasis added).
Whether a defense of impracticability rests on the increased cost resulting from shortages of water or other inputs affected by the drought, or from a governmental regulation or order limiting access to water, impracticability clearly represents an intractable problem absent clear contract drafting and advice. Contract drafters have several tools at their disposal to more clearly delineate the parties’ risk allocation. For example, properly constructed force majeure clauses should address the risk of supervening events expressly in the agreement. Additionally, “hell or high water” provisions make it clear the parties’ intend to implacably bind themselves despite any contingencies.
When problems raising impossibility, force majeure, or impracticability issues arise, the key will be managing expectations. If buyers suspect there are delays or other issues on the horizon, they should not hesitate to seek adequate assurances of performance from their suppliers. Likewise, if there are substantial additional costs or problems in maintaining the quality or quantity or the timing of supply, suppliers should notify their buyers as soon as practicable to adequately manage the relationship in the near term and maintain the relationship as the drought subsides and production gets back on track.
Think ahead when drafting important supply contracts. Read your contracts closely when a problem arises and reach out to counterparties early to address potential problems before they arise or worsen.
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Honk At Your Own Risk.
The urge to honk in certain situations is almost irresistible. This man will definitely resist the urge in the future. As reported in The Brooklyn Paper‘s police blotter for the 62nd Precinct (Bensonhurst—Bath Beach):
The victim said he honked his horn at the pair while they were inside their vehicle ahead of him for not moving fast enough at 12:10 am. The pair got out, the woman carrying a Louisville Slugger, and the man holding a black firearm.
Um. Never mind?
The femme fatale struck the victim on the back, then hit his driver’s-side door and smashed his mirror, a report said. The male then threatened him with a firearm before the two got back in their car and drove off, cops said.
Yikes!
Source: http://rss.justia.com/~r/LegalJuiceCom/~3/e6IEHyIzcco/fdsa.html
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Living in Multiple Tech Worlds: Windows, Mac, and Android
The rise of cloud computing has made it easier for lawyers to live in multiple tech worlds, whether it's Windows, Mac, iOS, or Android. This phenomenon is becoming a trend that affects many people and is changing how we think about, talk about, and use technology. On this episode of the Kennedy-Mighell Report, hosts Dennis Kennedy and Tom Mighell discuss living in multiple tech worlds simultaneously, how this changes our experience of technology, and practical ways to prepare and adjust to this growing trend.
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The Day Tripper Dilemma
If I was hoping to court the legally-ignorant, politically conservative reader, yesterday would not have been a good day for me. While lawprof Glenn Reynolds, Instapundit, couldn't be bothered to learn about the criminal justice system before opining about how to fix it, he had time to write about how mean I was to him. Not terribly surprising, given how lawprofs tend to be a bit sensitive,
What came of Reynolds' post was a curious thing, a swarm of his followers commenting in his defense. Most were just silly, reflecting the folks who follow his political agenda, and good for some lulz, but they raised an interesting dilemma: lacking education, practical experience or sufficient interest to learn about the substantive issues and problems involved, they ripped me a new one because the post here to which they were directed was the culmination of both numerous posts about Reynolds' disastrous Ham Sandwich Nation "fix" for the criminal justice system and even more numerous posts on the underlying issues.
One commenter made a good point, that my telling them to read a bunch of posts that would provide the substance that isn't in the one post to which they were directed is "weaksauce." He's right. It's not that this matters much, as they haven't come because they have any sincere interest in the subject. If they did, they would already be knowledgeable and wouldn't demand to be taught from the ground up.
But then, to the extent this is anything other than a humorous aside for those of us who are involved in criminal justice issues, it's an opportunity to educate the poor souls who are limited by Reynolds deep commentary (Heh?), and their point that the one post they read wasn't substantive is well-taken.
So if they can't be expected to read a hundred posts (and it's not really reasonable to expect them to do so), they lack any foundational knowledge on the subject and they're generally disinclined to disagree with their political guru, is there any way to address this gap?
Bear in mind that when the post that made Reynolds cry was written, it wasn't for the purpose of educating his followers but as the coda in the series of posts about his awful ideas to fix the system at the expense of defendants, which in turn was based on innumerable posts here about specific issues and problems with the system. Way too much to include in one post (and likely one full-length book, for that matter), and completely unnecessary for regular readers here or people who are knowledgeable about criminal law.
Obviously, I can't go back and rewrite the post as Criminal Law 101 for the benefit of Instapundit readers, with lengthy explanations that are obvious to the rest of us. Perhaps I should have anticipated that Reynolds would get all butthurt about it, write a post with his deepest thoughts, and cause an influx of his readers to come here to salvage his damaged dignity, but I didn't. And even if I had, it would have bored the daylights out of regular readers here. As SJ is neither political nor a plea for popularity among the Instapundit fans, the idea of writing a post in anticipation of the swarm seems outlandish.
One answer could be found on the flip side, if only Reynolds had an appreciation of the more thoughtful legal and practical impact of his politically driven ideas, such that his purportedly well-intended, if misguided, fixes were themselves more substantive, but it's hardly useful to blame the guy who proffers bad ideas for not understanding why his ideas are bad. If he did, he wouldn't have done so in the first place.
One might expect him, as a lawprof, to try to gain a far better basis of knowledge before going off, but that was one of the primary points of my rant about Reynolds in the first place. And he's playing to a political audience (which is a large part of the problem) rather than to an audience knowledgeable or seriously concerned about criminal law. It's easy to pass off shallow ideas to those who know nothing about the practical impact.
Yet, I missed an opportunity to educate a not insignificant group of day trippers who think they've got a clue because they read tripe like Reynolds' Ham Sandwich Nation. It's a shame to pass up an opportunity like that. It's a dilemma. I regret not having done a far better job of making use of the opportunity to illuminate.
© 2007-13 Simple Justice NY LLC. This feed is for personal, non-commercial & Newstex use only. The use of this feed on any other website is a copyright violation. If this feed is not via RSS reader or Newstex, it infringes the copyright.
What came of Reynolds' post was a curious thing, a swarm of his followers commenting in his defense. Most were just silly, reflecting the folks who follow his political agenda, and good for some lulz, but they raised an interesting dilemma: lacking education, practical experience or sufficient interest to learn about the substantive issues and problems involved, they ripped me a new one because the post here to which they were directed was the culmination of both numerous posts about Reynolds' disastrous Ham Sandwich Nation "fix" for the criminal justice system and even more numerous posts on the underlying issues.
One commenter made a good point, that my telling them to read a bunch of posts that would provide the substance that isn't in the one post to which they were directed is "weaksauce." He's right. It's not that this matters much, as they haven't come because they have any sincere interest in the subject. If they did, they would already be knowledgeable and wouldn't demand to be taught from the ground up.
But then, to the extent this is anything other than a humorous aside for those of us who are involved in criminal justice issues, it's an opportunity to educate the poor souls who are limited by Reynolds deep commentary (Heh?), and their point that the one post they read wasn't substantive is well-taken.
So if they can't be expected to read a hundred posts (and it's not really reasonable to expect them to do so), they lack any foundational knowledge on the subject and they're generally disinclined to disagree with their political guru, is there any way to address this gap?
Bear in mind that when the post that made Reynolds cry was written, it wasn't for the purpose of educating his followers but as the coda in the series of posts about his awful ideas to fix the system at the expense of defendants, which in turn was based on innumerable posts here about specific issues and problems with the system. Way too much to include in one post (and likely one full-length book, for that matter), and completely unnecessary for regular readers here or people who are knowledgeable about criminal law.
Obviously, I can't go back and rewrite the post as Criminal Law 101 for the benefit of Instapundit readers, with lengthy explanations that are obvious to the rest of us. Perhaps I should have anticipated that Reynolds would get all butthurt about it, write a post with his deepest thoughts, and cause an influx of his readers to come here to salvage his damaged dignity, but I didn't. And even if I had, it would have bored the daylights out of regular readers here. As SJ is neither political nor a plea for popularity among the Instapundit fans, the idea of writing a post in anticipation of the swarm seems outlandish.
One answer could be found on the flip side, if only Reynolds had an appreciation of the more thoughtful legal and practical impact of his politically driven ideas, such that his purportedly well-intended, if misguided, fixes were themselves more substantive, but it's hardly useful to blame the guy who proffers bad ideas for not understanding why his ideas are bad. If he did, he wouldn't have done so in the first place.
One might expect him, as a lawprof, to try to gain a far better basis of knowledge before going off, but that was one of the primary points of my rant about Reynolds in the first place. And he's playing to a political audience (which is a large part of the problem) rather than to an audience knowledgeable or seriously concerned about criminal law. It's easy to pass off shallow ideas to those who know nothing about the practical impact.
Yet, I missed an opportunity to educate a not insignificant group of day trippers who think they've got a clue because they read tripe like Reynolds' Ham Sandwich Nation. It's a shame to pass up an opportunity like that. It's a dilemma. I regret not having done a far better job of making use of the opportunity to illuminate.
© 2007-13 Simple Justice NY LLC. This feed is for personal, non-commercial & Newstex use only. The use of this feed on any other website is a copyright violation. If this feed is not via RSS reader or Newstex, it infringes the copyright.
Source: http://blog.simplejustice.us/2013/07/12/the-day-tripper-dilemma.aspx?ref=rss
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Values Collide In Texas Over 'Open Carry' Protests
Texan gun advocates have been visibly bringing guns into stores and restaurants as part of "open carry" protests, but some business owners are unhappy. What does this mean for Texas gun politics?
Source: http://www.npr.org/2014/06/05/319072135/values-collide-in-texas-over-open-carry-protests?ft=1&f=1070
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Spotlight on the Houston Bar Association
Established in 1870, the Houston Bar Association's purpose was to maintain high standards in the legal profession and provide legal education for Harris County attorneys. Today, the HBA is the fifth largest metropolitan bar association in the nation and has expanded its goals to include public service and better access to legal services for all citizens in the Greater Houston area. Ringler Radio host Larry Cohen talks with colleague, Robert P. Caples and guest, Attorney David Chaumette, President of the Houston Bar Association, to discuss the HBA's initiatives for 2014, public service and giving back and a fantastic community project program called The Veterans Legal Initiative.
Source: http://ringlerradio.com/?p=13798
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Saturday, June 7, 2014
Jeopardy Tax Assessment Avoided by Ex-Pa. State Sen. Fumo
Because the IRS couldn't prove that former state Sen. Vincent J. Fumo had taken concrete steps toward sheltering his wealth with family members, a federal judge has tossed a special assessment that the department had levied on him.
Spain drafts constitutional law to facilitate royal succession
[JURIST] The Spanish government on Tuesday approved [press release] a draft constitutional law that will facilitate the abdication of King Juan Carlos I. Spain's Council of Ministers submitted the proposed law to parliament, requesting that the House and Senate vote quickly on whether to make the draft part of the constitution. The King had submitted official notice to Spain's president [official website] on Monday that he intended to step down from the throne. The notice referenced the constitutional provision that...
Source: http://jurist.org/paperchase/2014/06/the-government-of-spain-approved.php
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Q&A: Will the FCC Read My Net Neutrality Comment?
FCC spokeswoman Kim Hart assures commenters that even though they are one of thousands, every submission is being read. Here is a Q&A on how the FCC's commenting system works.
Source: http://blogs.wsj.com/law/2014/06/05/qa-will-the-fcc-read-my-net-neutrality-comment/?mod=WSJBlog
Supreme Court throws out conviction on chemical weapons charge
[JURIST] The US Supreme Court [official website] ruled [opinion, PDF] Monday in Bond v. United States [SCOTUSblog backgrounder] that prosecutors cannot use an international chemical weapons treaty to convict a woman who attacked her husband's lover. Carol Anne Bond attempted to poison the woman by applying two toxic chemicals to her mailbox, car door handles and house doorknob. She was then convicted under the Chemical Weapons Convention Implementation Act [18 USC § 229 text], a federal law that enforces the...
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Probe Found Pattern of Incompetence, Says GM CEO
WARREN, Mich.--General Motors Co. Chief Executive Mary Barra has dismissed 15 employees and reprimanded five others in the wake of what she called a "brutally tough and deeply troubling" report by former U.S. Attorney Anton Valukas that chronicled why it took the auto maker 11 years to recall cars equipped with a defective ignition switch linked to numerous accidents and deaths. "What [the report] found was a pattern of incompetence and neglect," Ms. Barra said Thursday during a town hall style meeting with about 1,000 employees at the company's Warren, Mich., technical center. Her presentation was broadcast to employees around the world.
Source: http://blogs.wsj.com/law/2014/06/05/probe-found-pattern-of-incompetence-says-gm-ceo/?mod=WSJBlog
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Supreme Court rules vacates ruling on patent 'indefiniteness'
[JURIST] The US Supreme Court [official website] ruled [opinion, PDF] unanimously Monday in Nautilus, Inc. v. Biosig Instruments, Inc. [SCOTUSblog backgrounder], a long-running patent infringement case. Biosig sued Nautilus [corporate websites] in 2004, alleging that Nautilus infringed its patent for a heart-rate monitor. A district court found Biosig's patent invalid because of "indefiniteness." However, the US Court of Appeals for the Federal Circuit reversed the lower court and found that the patent was clear and valid, as long as the...
Source: http://jurist.org/paperchase/2014/06/supreme-court-vacates-ruling-on-patent-indefiniteness.php
Conviction Tossed; Juror Couldn't Look at Child Porn Evidence
A federal appeals court threw out a 14-year prison sentence and ordered a new trial in a child pornography case because a judge didn't remove a juror who couldn't vow to give the defendant a fair trial.
Source: http://www.nationallawjournal.com/id=1202637051379?rss=rss_nlj
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Friday, June 6, 2014
Prison Rape Law A Decade Old, But Most States Not In Compliance
A law to educate inmates about their rights and how to report sexual violence crimes went into effect in 2003. But most states are still not in full compliance. Others are protesting the rules.
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What Would Atticus Have Done?
Hearing that the mob was going to storm the jail and lynch Tom Robinson, the fictional Atticus Finch stood at the doorway to block their entrance. Among criminal defense lawyers, Atticus Finch is revered as a paragon of honor. Not all lawyers saw it that way.
Yesterday was Race Day at the New York Times, where two op-eds argued the failure of a certain verdict in Florida was due to the one word unspoken throughout the trial, race. In a "surprising" choice that suggests the power of an excellent public relations team, one op-ed was by Gloria Allred's daughter, Lisa Bloom, who, after explaining the basis for her assumption about what was inside George Zimmerman's head, illuminated the race issue with the insightful:
This isn't a legal argument, however. Bloom and Yankah are both writing from the legal perspective, but what they are writing about isn't legal. It's sociological, a condemnation of a society that is still racist despite having a black president. Anyone who thinks it's "problem solved" is delusional.
But Yankah contends that it is "the simplest of truths: that race and law cannot be cleanly separated." Cleanly? No, it probably can't be cleanly separated, though it's similarly unclear that this constitutes "the simplest of truths." There is nothing simple about it.
It gives rise to a troubling question, that Yankah fails to adequately address and is way over Bloom's head.
Does the introduction of race by the prosecution into Zimmerman's perceptions alter the rule of self-defense? Does it render his subsequent conduct unlawful, even if it would have been lawful otherwise? Should there be two rules of law, one for interactions between people of different races where perceptions of the significance of conduct is assumed to be racially related, if not motivated?
To point out that we still live in a society where race remains a pervasive unresolved issue is to state the obvious. To suggest that the criminal law should accommodate it is to present an intractable problem. Atticus Finch didn't hesitate to put his life on the line for his client, a black man accused of raping a white woman. But he didn't do enough because he didn't confront the racist society in defending Tom Robinson?
If the prosecution had been allowed, and inclined, to argue that George Zimmerman's conduct was racially motivated, and that his ultimate decision to shoot and kill Trayvon Martin was, at least in the tiniest of ways, based upon his race, would that have rendered his belief that he was about to suffer death or serious injury unreasonable? If his head was being beaten against concrete by a white youth, as opposed to a black youth, would the harm have been different?
The argument that this scenario would never have commenced had Trayvon Martin been a white youth in a sports jacket and khakis is likely true. It's pure speculation no matter how much your head screams "yes, yes, yes," of course, but still. Yet how would the law have been any different at the point where a shot was fired?
If we are to have a nation of laws to guide ourselves, how do we draw these vague, fuzzy lines where the law ceases to apply, where it's a free for all, where there is no longer a fixed right and wrong and everything becomes a matter of feelings, assumptions and personal perspective? Yankah may be right that race and law cannot be cleanly separated in our collective consciousness, but then we cease to be a nation of laws when we ignore one for the other.
You might prefer that to happen here, but will you feel the same when you sit in the defendant's chair? So what would Atticus Finch have done? He would have defended George Zimmerman based on the law, even if he failed to meet Monroe Freedman's expectation that he not be morally ambiguous. Atticus Finch would have still been the paragon of honor, even in the face of societal condemnation. That's what criminal defense lawyers do. That's what we are sworn to do.
© 2007-13 Simple Justice NY LLC. This feed is for personal, non-commercial & Newstex use only. The use of this feed on any other website is a copyright violation. If this feed is not via RSS reader or Newstex, it infringes the copyright.
In 1992, Monroe Freedman, a legal ethics expert, published two articles in the national legal newspaper Legal Times calling for the legal profession to set aside Atticus Finch as a role model. Freedman argued that Atticus still worked within a system of institutionalized racism and sexism and should not be revered. Freedman's article sparked a flurry of responses from attorneys who entered the profession holding Atticus Finch as a hero, and the reason they became lawyers. Critics of Atticus such as Freedman maintain that Atticus Finch is morally ambiguous and does not use his legal skills to challenge the racist status quo in Maycomb.While Atticus might have fulfilled the highest calling of a lawyer, Freedman saw the character as failing his calling as a human being in a racist society, and considered that to be a fatal flaw.
Monroe H. Freedman, ""Atticus Finch, Esq., R.I.P.,"" 14 LEGAL TIMES 20 (1992); Monroe H. Freedman, ""Finch: The Lawyer Mythologized,"" 14 LEGAL TIMES 25 (1992) and Monroe Freedman, Atticus Finch – Right and Wrong, 45 Ala. L. Rev. 473 (1994).
Yesterday was Race Day at the New York Times, where two op-eds argued the failure of a certain verdict in Florida was due to the one word unspoken throughout the trial, race. In a "surprising" choice that suggests the power of an excellent public relations team, one op-ed was by Gloria Allred's daughter, Lisa Bloom, who, after explaining the basis for her assumption about what was inside George Zimmerman's head, illuminated the race issue with the insightful:
Huh?In contrast, Cardozo lawprof Ekow Yankah invokes the spirit of his fellow lawprof, Freedman, in writing:
The anger felt by so many African-Americans speaks to the simplest of truths: that race and law cannot be cleanly separated. We are tired of hearing that race is a conversation for another day. We are tired of pretending that “reasonable doubt” is not, in every sense of the word, colored.This conforms with my assumption as well. I find it impossible to believe that Zimmerman's perception of Martin as being "a punk" wasn't colored by race. Sure, there was also youth and attire, but it was part of the whole package. And to the extent that his skin color played a role in his perception that this was a kid who needed to be followed, who posed a threat of doing something wrong, it is racist. Maybe not white hooded, cross-burning racism, but racist nonetheless.
Every step Mr. Martin took toward the end of his too-short life was defined by his race. I do not have to believe that Mr. Zimmerman is a hate-filled racist to recognize that he would probably not even have noticed Mr. Martin if he had been a casually dressed white teenager.
This isn't a legal argument, however. Bloom and Yankah are both writing from the legal perspective, but what they are writing about isn't legal. It's sociological, a condemnation of a society that is still racist despite having a black president. Anyone who thinks it's "problem solved" is delusional.
But Yankah contends that it is "the simplest of truths: that race and law cannot be cleanly separated." Cleanly? No, it probably can't be cleanly separated, though it's similarly unclear that this constitutes "the simplest of truths." There is nothing simple about it.
It gives rise to a troubling question, that Yankah fails to adequately address and is way over Bloom's head.
What is reasonable to do, especially in the dark of night, is defined by preconceived social roles that paint young black men as potential criminals and predators. Black men, the narrative dictates, are dangerous, to be watched and put down at the first false move. This pain is one all black men know; putting away the tie you wear to the office means peeling off the assumption that you are owed equal respect. Mr. Martin’s hoodie struck the deepest chord because we know that daring to wear jeans and a hooded sweatshirt too often means that the police or other citizens are judged to be reasonable in fearing you.Being fully willing to accept that race factored into Zimmerman's perception, based on my own personal bias, the question that remains unanswered is what should the law have done about it?We know this, yet every time a case like this offers a chance for the country to tackle the evil of racial discrimination in our criminal law, courts have deliberately silenced our ability to expose it. The Supreme Court has held that even if your race is what makes your actions suspicious to the police, their suspicions are reasonable so long as an officer can later construct a race-neutral narrative.
Does the introduction of race by the prosecution into Zimmerman's perceptions alter the rule of self-defense? Does it render his subsequent conduct unlawful, even if it would have been lawful otherwise? Should there be two rules of law, one for interactions between people of different races where perceptions of the significance of conduct is assumed to be racially related, if not motivated?
To point out that we still live in a society where race remains a pervasive unresolved issue is to state the obvious. To suggest that the criminal law should accommodate it is to present an intractable problem. Atticus Finch didn't hesitate to put his life on the line for his client, a black man accused of raping a white woman. But he didn't do enough because he didn't confront the racist society in defending Tom Robinson?
If the prosecution had been allowed, and inclined, to argue that George Zimmerman's conduct was racially motivated, and that his ultimate decision to shoot and kill Trayvon Martin was, at least in the tiniest of ways, based upon his race, would that have rendered his belief that he was about to suffer death or serious injury unreasonable? If his head was being beaten against concrete by a white youth, as opposed to a black youth, would the harm have been different?
The argument that this scenario would never have commenced had Trayvon Martin been a white youth in a sports jacket and khakis is likely true. It's pure speculation no matter how much your head screams "yes, yes, yes," of course, but still. Yet how would the law have been any different at the point where a shot was fired?
If we are to have a nation of laws to guide ourselves, how do we draw these vague, fuzzy lines where the law ceases to apply, where it's a free for all, where there is no longer a fixed right and wrong and everything becomes a matter of feelings, assumptions and personal perspective? Yankah may be right that race and law cannot be cleanly separated in our collective consciousness, but then we cease to be a nation of laws when we ignore one for the other.
You might prefer that to happen here, but will you feel the same when you sit in the defendant's chair? So what would Atticus Finch have done? He would have defended George Zimmerman based on the law, even if he failed to meet Monroe Freedman's expectation that he not be morally ambiguous. Atticus Finch would have still been the paragon of honor, even in the face of societal condemnation. That's what criminal defense lawyers do. That's what we are sworn to do.
© 2007-13 Simple Justice NY LLC. This feed is for personal, non-commercial & Newstex use only. The use of this feed on any other website is a copyright violation. If this feed is not via RSS reader or Newstex, it infringes the copyright.
Source: http://blog.simplejustice.us/2013/07/16/what-would-atticus-have-done.aspx?ref=rss
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Washington's sexual orientation discrimination amendment is not retroactive
The Washington State Supreme Court held today that a sexual orientation discrimination amendment adopted in 2006 is not retroactive.
The court also concluded that conduct that took place prior to the amendment is admissible background evidence to prove the discriminatory nature of certain conduct occurring after the amendment.
Loeffelholz v. Univ of Washington (Washington 09/13/2012)
Loeffelholz sued under the Washington Law Against Discrimination (WLAD) claiming discrimination based on sexual orientation. WLAD was amended in 2006 to include sexual orientation as a protected class, and Loeffelholz alleged several pre-amendment acts and one post-amendment act.
The Washington Supreme Court held that (1) the WLAD amendment is not retroactive and the pre-amendment conduct is not actionable as it was not unlawful when it occurred, and (2) the post-amendment allegedly discriminatory comment is arguably similar enough to the pre-amendment conduct to survive summary judgment.
Loeffelholz alleged that her supervisor between 2003 and June 2006 maintained a hostile work environment based on sexual orientation. This was prior to the WLAD amendment. Loeffelholz also alleged a single act of discrimination by this supervisor after the WLAD amendment.
The court's findings:
(1) Pre-amendment conduct is not actionable. Retroactive application of the amendment would violate the employer's due process rights. The plain language of the amendment and its legislative history indicate only prospective application.
(2) Pre-amendment conduct is admissible as background evidence to prove why the post-amendment conduct is discriminatory.
(3) The post-amendment conduct was a single statement by Loeffelholz's supervisor, who was about to be deployed to Iraq, that he was "going to come back a very angry man." The court found that a reasonable jury could infer that this comment was a natural extension of pre-amendment conduct - the supervisor's dislike of lesbians and his anger management problems as illustrated by his comments that he had a volatile temper and kept a gun. This is enough to preclude summary judgment.
Source: http://www.lawmemo.com/blog/2012/09/washingtons_sex.html
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Managing Overflow Work with Freelance Attorneys
When overwhelmed with work, some firms hire freelance attorneys to fill the gap between client demand and firm capacity. Whether it's niche expertise, transactional labor, or long-term temp. assignments, these contract attorneys are well-equipped to support the unique interests of their hiring firms. On this episode of Legal Toolkit, host Jared Correia interviews talent placement experts Leila Kanani from Intermix Legal Group and Gil Schipani from Tempus Fugit Law to learn more about the benefits of freelance attorney placement. Kanani discusses how firms who hire freelance attorneys benefit from improved workflow and enhanced expertise without the need to hire a permanent associate. Tune in to learn more.
Leila Kanani is an IP solo attorney and founder of Intermix Legal. After over 10 years of practice in BigLaw, she left for more control and balance in her life. Her objective in creating Intermix was to provide a flexible framework for experienced attorneys to participate in project-based contract legal services for solos and small firms.
Gil Schipani is the founder of Tempus Fugit Law, which specializes in substitute counsel/court coverage for lawyers as well as single transaction services. He is currently a partner with Schipani and Sinay and former Assistant City Solicitor of Brockton, Massachusetts. His practice area focuses on real estate, personal injury, business, and employment law.
Leila Kanani is an IP solo attorney and founder of Intermix Legal. After over 10 years of practice in BigLaw, she left for more control and balance in her life. Her objective in creating Intermix was to provide a flexible framework for experienced attorneys to participate in project-based contract legal services for solos and small firms.
Gil Schipani is the founder of Tempus Fugit Law, which specializes in substitute counsel/court coverage for lawyers as well as single transaction services. He is currently a partner with Schipani and Sinay and former Assistant City Solicitor of Brockton, Massachusetts. His practice area focuses on real estate, personal injury, business, and employment law.
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Sound The Retreat (Update)
Remember when the word "wilding" was introduced into the general lexicon so that we would have a word to capture the "super-predator" gangs of youths who were intent on destroying society? It came out of the Central Park Five case, and produced a huge shift in our approach to juvenile prosecution and punishment.
"Justice," people cried. They demanded justice. Don't let these super-predator kids destroy our world with wilding.
Except it didn't happen. The kids never beat and raped a woman in Central Park, and were coerced into false confessions. Of course, we didn't learn that until much later, after the wilding scare had done its damage to our laws, procedures and psyches, to save us from the super-predators and give us justice.
The New York Times has a post-Zimmerman-verdict editorial today that threatens to do the same. It's titled "Trayvon Martin's Legacy," a blatant appeal to emotion. Invoking the name of a dead child has proven one of the most utilitarian methods of manipulation available, and the Times unabashedly uses it to further its point.
But the point of the editorial is just plain wrong:
Stand Your Ground laws apply to one aspect of the larger concept of self-defense, and only one: they eliminate the requirement that a person retreat if he can safely do so. To be clear, I believe that Stand Your Ground laws are fundamentally wrong. The balance is a human life, on the one hand, and some machismo principle that a person should not have to endure the humiliation of retreat on the other.
The argument is that they have a right to stand their ground and fight rather than be forced to run away in the face of an attack, even if they can safely do so. Life is not so cheap that it should be taken to protect ego. Many disagree with me, and they're allowed. This isn't a legal judgment, but a moral balance. I come out in favor of life, and have no plans to change.
But that's not how the Times plays the game in its editorial. While blaming Stand Your Ground, they are attacking the basic concept of self-defense having absolutely nothing to do with Stand Your Ground. It's not merely intuitive, which is used to suggest the inherent fight or flight instinct in human beings, but characterized by the Times as some unnatural shift imposed by law to empower "self-deputized" gun nuts with "a grudge."
This is an artfully crafted diversion from the law that existed long before anybody came up with the cool phrase, Stand Your Ground. We always had the right to defend our lives when threatened with death or serious physical injury. If we could safely retreat, then that was the best option and we were required to do so. If not, then we defended our lives.
The underlying gripe is twofold, neither of which have anything to do with Stand Your Ground. The first is playing the race card. Like most people, I can't let go of the assumption that race influenced perceptions here, even though I have no basis for the assumption. But there is no law, nor can there be, that requires us to behave one way when the interaction is black and white versus white and black, or people of the same race. Does the Times suggest we start writing two sets of laws, maybe more, to accommodate the races of participants?
The second is the gun card, as reflected in the "Kel-Tec 9 millimeter" language. New York, not being at all gun-friendly, is easily shaken by words that make guns sound particularly vicious and high tech. And again, I'm no personal fan of guns, having no interest in strapping one on. But a great many other people are fans, and the Second Amendment protects their right to be fans. It's irrelevant whether that's my favorite amendment, just as it's irrelevant whether cops like the Fourth.
The same Constitution we invoke to protect the rights we favor protects some things that we don't. Either we honor the Constitution or not, and that includes all the parts, even the ones that aren't as dear to us as others.
A guy is cornered, there is no escape. The other guy is big. Huge. Strong. And is about to bash his head in. The cornered guy has a gun (give it whatever nasty gun-type name you want). Should the law prohibit him from using it to save his life? But that's not the facts in Zimmerman, you say. True, but laws don't exist for every conceivable set of facts and circumstances people can come up with, and the law of self-defense applies to this scenario the same as it did in Zimmerman. Would it make you feel better to have the cornered guy die because the law prohibited him from using his gun to save his life?
While the New York Times editorial may fairly argue for racial tolerance and the evils of guns, Second Amendment be damned, what it cannot do is lie to people by claiming that Trayvon Martin would not be dead but for Stand Your Ground laws, and then call for the evisceration of our basic, age-old right to self-defense. The alternative to self-defense when one cannot safely retreat is to die.
While it's painfully hard to know whether a person's fear of harm was "reasonable," especially when there is only one side to the confrontation who is alive to tell the story, it's a necessary evil in distinguishing whether force can be lawfully used. The choice was made hundreds of years before anyone ever heard of Trayvon Martin or George Zimmerman, and it's been the right choice for all those years since.
As much as many feel that it played out poorly here, it was always understood that some variations in fact on the same theme would touch our sensibilities differently than others. But the flaw was never with the law. The flaw is that we're human and subject to feelings that may defy reason, and not every application of sound and neutral law will make us feel good about what happened. It's what we must suffer in a society of laws. And the New York Times should know this and be ashamed of itself for engaging in this deception.
Update: In an interview on Anderson Cooper 360, one of the jurors spoke:
© 2007-13 Simple Justice NY LLC. This feed is for personal, non-commercial & Newstex use only. The use of this feed on any other website is a copyright violation. If this feed is not via RSS reader or Newstex, it infringes the copyright.
"Justice," people cried. They demanded justice. Don't let these super-predator kids destroy our world with wilding.
Except it didn't happen. The kids never beat and raped a woman in Central Park, and were coerced into false confessions. Of course, we didn't learn that until much later, after the wilding scare had done its damage to our laws, procedures and psyches, to save us from the super-predators and give us justice.
The New York Times has a post-Zimmerman-verdict editorial today that threatens to do the same. It's titled "Trayvon Martin's Legacy," a blatant appeal to emotion. Invoking the name of a dead child has proven one of the most utilitarian methods of manipulation available, and the Times unabashedly uses it to further its point.
But the point of the editorial is just plain wrong:
The jury reached its verdict after having been asked to consider Mr. Zimmerman’s actions in light of Florida’s now-notorious Stand Your Ground statute. Under that law, versions of which are on the books in two dozen states, a person may use deadly force if he or she “reasonably believes” it is necessary to prevent death or great bodily harm — a low bar that the prosecutors in this case fought in vain to overcome.It's been explained, calmly and rationally, over and over. It's impossible to believe that the editorial board of the Times, a smart bunch of folks, didn't hear it or grasp it. If so, then what's written here can only be attributed to disingenuousness and a deliberate effort to deceive.These laws sound intuitive: who would argue that you may not protect yourself against great harm? But of course, the concept of “reasonable belief” is transformed into something deadly dangerous when firearms are involved. And when the Stand Your Ground laws intersect with lax concealed-carry laws, it works essentially to self-deputize anyone with a Kel-Tec 9 millimeter and a grudge.
Stand Your Ground laws apply to one aspect of the larger concept of self-defense, and only one: they eliminate the requirement that a person retreat if he can safely do so. To be clear, I believe that Stand Your Ground laws are fundamentally wrong. The balance is a human life, on the one hand, and some machismo principle that a person should not have to endure the humiliation of retreat on the other.
The argument is that they have a right to stand their ground and fight rather than be forced to run away in the face of an attack, even if they can safely do so. Life is not so cheap that it should be taken to protect ego. Many disagree with me, and they're allowed. This isn't a legal judgment, but a moral balance. I come out in favor of life, and have no plans to change.
But that's not how the Times plays the game in its editorial. While blaming Stand Your Ground, they are attacking the basic concept of self-defense having absolutely nothing to do with Stand Your Ground. It's not merely intuitive, which is used to suggest the inherent fight or flight instinct in human beings, but characterized by the Times as some unnatural shift imposed by law to empower "self-deputized" gun nuts with "a grudge."
This is an artfully crafted diversion from the law that existed long before anybody came up with the cool phrase, Stand Your Ground. We always had the right to defend our lives when threatened with death or serious physical injury. If we could safely retreat, then that was the best option and we were required to do so. If not, then we defended our lives.
The underlying gripe is twofold, neither of which have anything to do with Stand Your Ground. The first is playing the race card. Like most people, I can't let go of the assumption that race influenced perceptions here, even though I have no basis for the assumption. But there is no law, nor can there be, that requires us to behave one way when the interaction is black and white versus white and black, or people of the same race. Does the Times suggest we start writing two sets of laws, maybe more, to accommodate the races of participants?
The second is the gun card, as reflected in the "Kel-Tec 9 millimeter" language. New York, not being at all gun-friendly, is easily shaken by words that make guns sound particularly vicious and high tech. And again, I'm no personal fan of guns, having no interest in strapping one on. But a great many other people are fans, and the Second Amendment protects their right to be fans. It's irrelevant whether that's my favorite amendment, just as it's irrelevant whether cops like the Fourth.
The same Constitution we invoke to protect the rights we favor protects some things that we don't. Either we honor the Constitution or not, and that includes all the parts, even the ones that aren't as dear to us as others.
A guy is cornered, there is no escape. The other guy is big. Huge. Strong. And is about to bash his head in. The cornered guy has a gun (give it whatever nasty gun-type name you want). Should the law prohibit him from using it to save his life? But that's not the facts in Zimmerman, you say. True, but laws don't exist for every conceivable set of facts and circumstances people can come up with, and the law of self-defense applies to this scenario the same as it did in Zimmerman. Would it make you feel better to have the cornered guy die because the law prohibited him from using his gun to save his life?
While the New York Times editorial may fairly argue for racial tolerance and the evils of guns, Second Amendment be damned, what it cannot do is lie to people by claiming that Trayvon Martin would not be dead but for Stand Your Ground laws, and then call for the evisceration of our basic, age-old right to self-defense. The alternative to self-defense when one cannot safely retreat is to die.
While it's painfully hard to know whether a person's fear of harm was "reasonable," especially when there is only one side to the confrontation who is alive to tell the story, it's a necessary evil in distinguishing whether force can be lawfully used. The choice was made hundreds of years before anyone ever heard of Trayvon Martin or George Zimmerman, and it's been the right choice for all those years since.
As much as many feel that it played out poorly here, it was always understood that some variations in fact on the same theme would touch our sensibilities differently than others. But the flaw was never with the law. The flaw is that we're human and subject to feelings that may defy reason, and not every application of sound and neutral law will make us feel good about what happened. It's what we must suffer in a society of laws. And the New York Times should know this and be ashamed of itself for engaging in this deception.
Update: In an interview on Anderson Cooper 360, one of the jurors spoke:
COOPER: Because of the only, the two options you had, second degree murder or manslaughter, you felt neither applied?
JUROR: Right. Well, because of the heat of the moment and the stand your ground. He had a right to defend himself. If he felt threatened that his life was going to be taken away from him or he was going to have bodily harm, he had a right.
This mention of stand your ground gave rise to an apology from Eugene Volokh, who had also written about this Times editorial subsequent to this post.
It thus appears that at least one of the jurors did “consider Mr. Zimmerman’s actions in light of the ... Stand Your Ground provision in Florida’s self-defense law,” and on that the Times editorial was right, and I was wrong to criticize it; my apologies to the editorialists, and to our readers.
While there is no issue that stand your ground had no legal bearing on the case, Eugene apologized for arguing that the aspect of the editorial suggesting that the jury somehow relied on it in reaching its verdict. My view is that these were empty words to the juror, having been uttered too many time in the media before trial, and she offered them in the interview either without any grasp of what they meant or inadvertently.
It was a loose phrase, not a reflection that an unrelated legal concept, mentioned in passing as part of pattern jury instructions, and never argued to the jury, played a role. Loose language shouldn't be taken too seriously and serve as a basis for assuming scholar-like attention to something that scholars universally agree had no place in the case.
While it was gracious of Eugene to apologize, it was both unnecessary and, perhaps, a mistake to feed misguided understandings about a law which is being blamed for a role it never played.
© 2007-13 Simple Justice NY LLC. This feed is for personal, non-commercial & Newstex use only. The use of this feed on any other website is a copyright violation. If this feed is not via RSS reader or Newstex, it infringes the copyright.
Source: http://blog.simplejustice.us/2013/07/15/sound-the-retreat.aspx?ref=rss
Mexico doubles prison sentences for kidnapping
[JURIST] The Mexican government has published new sentencing guidelines that will double prison sentences for kidnapping crimes. This increases the minimum sentence for such crimes from 20 to 40 years, and the maximum from 50 to 140 years for those who kill their victims. Other factors that affect sentence length include injuring the victim, abduction of minors and if the convict is a current or former police officer or soldier. This legislation is the result of a drastic increase in...
Source: http://jurist.org/paperchase/2014/06/mexico-doubles-prison-sentences-for-kidnapping.php
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LawBiz® Legal Pad: Retainers- Do They Do Any Good For You?
Ed examines the complexities of retainers and discusses their use within the legal profession.
Source: http://feeds.lexblog.com/~r/LawBizBlog/~3/uUcsklaftuY/
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THE PRACTICE: Retaliation Suits Put Firms Up Against the 'Ropes'
A second critical maxim of employment law litigation is illustrated by the Ropes & Gray lawsuit: Do not speak ill of the departed.
Source: http://www.nationallawjournal.com/id=1202631180267?rss=rss_nlj
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Thursday, June 5, 2014
Driver Blames It On The Manzilian
How about this explanation given by a man arrested for exposing himself while driving? As reported by The Kitsap Sun (Washington):
A 24-year-old Bremerton man arrested Wednesday for indecent exposure told a State Patrol trooper he was driving his car while not wearing pants because he recently received a body wax.
The “Manzilian,” or Brazilian for men, resulted in his jeans irritating his skin, he told the trooper, so he had been driving in his underwear.
A witness told investigators she had seen the man exposing himself and sticking out his tongue while driving on Highway 16 near the Tremont Street overpass, and had been doing so “since Gig Harbor,” according to court documents.
The man was booked into Kitsap County Jail and held on $5,000 bail.
Are you buying it? Here’s the source.
Source: http://rss.justia.com/~r/LegalJuiceCom/~3/JjjIwIKwPwg/adf-11.html
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Experts Question Legality of Bergdahl Swap
Source: http://blogs.wsj.com/law/2014/06/04/experts-question-legality-of-bergdahl-swap/?mod=WSJBlog
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