Wednesday, March 28, 2007

Virginia to Pay $1.9M to Wrongfully Convicted Man.

According to The Richmond Times-Dispatch, the State of Virginia has agreed to pay $1.9 million dollars to Earl Washington, Jr., as compensation for wrongfully convicting him of raping and murdering a 19-year old woman in 1982. Washington was sentenced to death and came within nine days of being executed in 1985, before DNA testing exonerated him.

Washington is mildly retarded and falsely confessed to the charges. A jury in Washington's civil case found that a police investigator had given Washington details of the crime that only the actual killer would have known, to bolster the credibility of his confession.

DNA testing exonerated Washington adn implicated a convicted rapist, who now faces capital-murder charges.

The settlement agreement still hs to be approved by the federal court. The agreement was reached after months of settlement negotiations involving the lawyers, the governor's office, and mediators. In 2003, State legislators were asked to compensate Washington $1 million for the wrongful conviction, but they refused. Now the agreed upon amount is nearly double that, at $1.9 million.

How Appealing.

More coverage:
Washington Post (March 28, 2007)

Tuesday, March 27, 2007

A Writing Lesson: Active vs. Passive Voice.

Just a quick little lesson in more effective writing today. Grammar Girl's most recent lesson is about active vs. passive voice. It's a simple concept, once you understand it, but one that many people struggle to get a handle on at first.

Here's a sneak peek at what GG has to say on the subject:

A lot of you have asked me to explain passive voice and how to avoid it.

I'll start with active voice because it's simpler. In an active sentence, the subject is doing the action. A very straightforward example is the sentence "Steve loves Amy." Steve is the subject, and he is doing the action: he loves Amy, the object. Another example is the title of the Marvin Gaye song I Heard It through the Grapevine. I is the subject, the one who is doing the action. I is hearing it, the object of the sentence.

In passive voice the target of the action gets promoted to the subject position. Instead of saying, "Steve loves Amy," I would say, "Amy is loved by Steve." The subject of the sentence becomes Amy, but she isn't doing anything. Rather, she is just the recipient of Steve's love. The focus of the sentence has changed from Steve to Amy. If you wanted to make the title of the Marvin Gaye song passive, you would say It Was Heard by Me through the Grapevine, not such a catchy title anymore.

Go see what else she has to say to help you understand this!

Monday, March 19, 2007

LawComix -- Even Lawyers Need a Comic Strip!

Here's a great site for getting a regular dose of legal humor: Scribble-in-Law by Charles Pugley Fincher, J.D. New comics every Monday, "plus Extras" on occasion. Go check out the archive and catch up; there's some really great stuff there:

"Abuse of Discretion"
"Surveillance Photo"
"Sock Puppet Contempt"

... and many more!

Scribble-in-Law is a law cartoon by Charles Pugsley Fincher. New Scribbles are posted on Mondays with unscheduled extras posted as they are done. Each current cartoon is rotated to the archive when a new one is posted.

Don't expect conventional lawyer jokes here, but instead inside legal humor and satire with an offbeat slant. In addition to being a cartoonist, Fincher is a lawyer so at times Scribble is inside-baseball stuff primarily for people connected to the legal field and corporate firms ... Read more.

There's even an RSS feed, so you can subscribe and be automatically notified of new updates!

Blawgs Blog (3-18-07)

Friday, March 16, 2007

The Story of Alejandro DeJesus, from ACS Blog.

Alejandro DeJesus was a U.S. Navy Veteran. Alejandro DeJesus served this country in Vietnam. Alejandro DeJesus had a history of mental illness and suicide attempts. In 1997, Alejandro DeJesus turned to the Department of Veterans Affairs for help.

The VA diagnosed DeJesus with a violent mental illness. Then the VA assigned a caseworker to provide therapy to DeJesus -- a woman who had attended nursing school but had twice failed the licensing exam and had no license to practice. Then the VA transferred DeJesus to a non-profit facility funded by the VA. Unfortunately, DeJesus' caseworker wrote on his admittance forms that he had no history of mental illness or behavioral problems, and made no mention of his history of violence and suicide attempts.

Go over to ACS Blog to read the rest of DeJesus' story. It is a sad story. It ends with DeJesus shooting and killing two of his own children, shooting and killing two neighbors, and turning a gun on himself and committing suicide. It also ends with the Third Circuit Court of Appeals upholding a $7.4 million jury award against the VA on the basis of the VA's "gross negligence."

Wednesday, March 14, 2007

Ahhh! Concise Justice!

The Florida Third District Court of Appeal recently issued a nice, concise opinion. In Francis v. Florida, Albert Russell Francis, in proper person, brought an original action in the Court of Appeal seeking relief on an allegation that his appellate counsel had been ineffective. The decision of the appellate court was concise enough that I will quote it in its entirety:


Really. Click the link above. Take a look at the actual opinion. My description here is significantly longer than the one word decision! I guess some cases just don't really merit any explanation.

the (new) legal writer (March 14, 2007).

Female Judges in Egypt

According to the AP, Egypt's judiciary chief has recently named the country's first female judges. 31 women have been appointed positions as either judge or chief judge in Egypt's courts.

From the article:

The move is expected to give a boost to President Hosni Mubarak's political and social reforms that have been widely criticized as too restricted. But others said the announcement still falls short of providing women equal opportunities.

The decree said the women, who previously were state prosecutors, passed a special test before being named to their new posts.

Women's rights advocates have been pushing for female judges for decades, but the government had refused, fearing angry reaction from conservative Muslims opposed to a move they consider un-Islamic.

In 2003, Mubarak named a female lawyer, Tahany el-Gebaly, as a judge in the nation's constitutional tribunal, a post which does not include overseeing civil or criminal court cases. It was not immediately clear what courts the 31 women would preside over.

There is, obviously, debate in Egypt about whether this is a good development. Some Islamics have decried the move, citing such Islamic tenets as one that provides "that two women are equal to one man if they are called as witnesses in a court" -- thus, one woman should not be able to be a judge because she cannot even be a sole witness -- and one that prohibits women from spending time alone with men. Others, however, have argued that the decree appointing the women does not go far enough and is merely cosmetic because only selected women who had already worked for the government were chosen, leaving out defense lawyers and other civil servants.

Jurist (March 14, 2007).

How Appealing (March 14, 2007).

Monday, March 12, 2007

New Additions to the Blog-Roll.

I've added a few more NEW sites to the blog-roll:

"Wash Law" -- Washburn Law's comprehensive legal research resource site, complete with a plethora of useful links to free sources for research all over the net, covering most state and federal jurisdictions.

Set in Style -- an interesting blog about legal writing from a publishing/publisher's/editor's point of view.

Legal Research and Writing Blog -- providing practical insight into legal research and writing; the only drawback to this site is that there is no RSS feed for it.

Grammar Girl -- because who doesn't love a chick who can talk grammar rules?

Wednesday, March 07, 2007

New Additions to the Blog-Roll.

I'm making a couple of new additions to the blog-roll. I've discovered a couple of great new sites that you should all be aware of and check out:

1. "Minor Wisdom"

First, go over and check out Minor Wisdom, a great multi-topic blog by Raymond Ward. Regular readers of this blog are no doubt already aware of Ward's other blogs, The Legal Writer (now archival only) and the (new) legal writer. Ward's legal writing blogs, and the blog-rolls thereon, have tons of great resources for anyone who does writing, legal or otherwise. Minor Wisdom is a great, eclectic blog that has, in the past couple of weeks alone, covered such topics as Airline Arseholes (concerning assholish behavior by travelers -- who hasn't encountered that?), Unlikely Blues Singers (including the incomparable Johnny Cash, one of my favorites), and Blidgets (a great tool for bloggers with multiple blogs). Go spend some time at Minor Wisdom, and I promise you won't be disappointed.

2. Blawgs Blog

Also, go check out (and maybe subscribe via RSS) The Blawgs Blog, a great site that collects some of the best posting from the blawg-o-sphere. Blawgs Blog is a great, one-stop, resource for you to go to quickly get a taste of what the legal blogging world is all abuzz about. I highly recommend this site, especially if you are in a pinch and don't have time to peruse all your normal sites and just want a quick taste of what's being talked about.

Legal Commentary: The Case of Khalid El-Masri

There's a commentary worth reading over at concerning the case of Khalid El-Masri and his claims related to his extraordinary rendition.

According to Wikipedia:

Khalid El-Masri (born June 29, 1963) is a German citizen who was, in the course of the CIA's extraordinary rendition programme, detained, flown to Afghanistan, and interrogated and allegedly tortured by the CIA for several months as a part of the War on terror, and then released without charge. This illegal detention was apparently due to a misunderstanding that arose concerning the similarity of the spelling of El-Masri's name with the spelling of suspected terrorist al-Masri. [citation needed]

El-Masri was born in Kuwait to Lebanese parents. He grew up in Lebanon and moved to Germany in 1985 to escape the Lebanese Civil War. He became a German citizen in 1994, married a fellow Lebanese in 1996 and has several children.[1]

In his commentary, Ben Davis of the Toledo College of Law, compares El-Masri's situation with that of Joseph K. in Kafka's The Trial. As a result of a recent decision of the Fourth Circuit El-Masri was declared to be unable to litigate his claims because of the state secrets doctrine. As Decision of the Day reported:

El-Masri argued that the state secrets doctrine did not apply because he was challenging policies that were public knowledge – namely, Tenet’s well-publicized “extraordinary rendition” program for rounding up Middle Easterners around the world who have suspected ties to terrorists. The government countered that El-Masri’s law suit would require the CIA to disclose too many details about its program. The Fourth agrees. For one thing, El-Masri has sued the unknown individuals who held him in custody, which would require the CIA to disclose protected information about its staffing. In addition, El-Masri’s claims against corporations would require disclosure of highly confidential espionage contracts. Finally, the identities of many of the witnesses in this case would also be protected by the state secrets doctrine.

For these reasons, the Fourth Circuit concludes that El-Masri’s suit is one of the rare instances in which the state secrets doctrine operates to deny a plaintiff an opportunity to litigate his claims. Thus, the Fourth affirms the dismissal of all claims.

In his commentary, Davis pointed out the legal dilemma facing El-Masri:

This decision presents us with the lawlessness of the internal law situation we have. The Executive cannot be criminally prosecuted domestically (above a few low level soldiers - Abu Ghraib - or CIA interrogators - Passarro) for its acts because it controls the federal prosecutors. If the Executive charges someone in court, then as a defense the person can seek to have evidence of horrible treatment brought in but will be confronted with the state secrets doctrine (see Padilla). If the Executive charges the person in a military commission the evidence issues again will come up against the state secrets doctrine (watch Hicks). If the person injured brings a civil suit as did el-Masri, the Fourth Circuit has told us that the state secrets doctrine will be allowed to trump and dismissal will occur.

On the international plane, el-Masri can seek to have the German government raise his claims in a state to state manner with the United States by having his claims espoused by his government. However, if he does that it is expected that the state-to-state solution, if it does occur, will be binding on him. His claim will fall into the pile of issues that impact US-German relations. One poor schmuck in that situation is not usually considered very important. Secretary of State Rice has apparently apologized to Germany and if Germany accepts that as the remedy, that appears to be all that el-Masri can get - an apology to his country for the treatment that happened to him. The United States has not apologized to el-Masri. El-Masri might sue other countries that allowed this to happen and maybe even Germany but would be unable to get relief from the principal cause of his injury - the United States.

Davis concludes:

Not providing some mechanism in the United States for addressing this kind of official misconduct ordered at higher levels places us in the unfortunate situation of being an emperor with no clothes as regards our commitments.

Moreover, the person who has been treated this way, who is innocent, who is the iconic Joseph K., finds in the United States the exact type of trial of which Kafka wrote. Such a person can look to the left or to the right, to those above or around him, to all the powers that be, and the message that keeps coming back is that he has no rights which we will recognize. That is a recipe from Dred Scott for objectification of the human being that I thought we had long since transcended. Put another way, el-Masri ends up being just a poor schmuck that the judiciary will not hear. That might be fine in Pinochet's Chile, Argentina under the generals, or Soviet-era Russia, but it is not fine today, now, in the USA. Shame on us.

Shame on us, indeed.

Monday, March 05, 2007

On the Lighter Side ...

A couple of items of news from the "lighter side" of the legal world:

1. Sex With Roadkill
Yep. You read that heading correctly. Courtesy of The Legal Reader comes the story of one Ronald E. Kuch, from Bay County, Michigan:

Bay County Circuit Judge Joseph K. Sheeran ruled Friday that even though Michigan law does not explicitly define sex with a dead dog as a crime, charges against a Saginaw man will stand.
Sheeran set a trial date of May 8 for the trial, when Ronald E. Kuch, 45, of Saginaw will face charges of sodomy, indecent exposure and resisting and obstructing an Animal Control officer. If convicted of either of the first two charges, Kuch will then have a hearing on May 30, at which Sheeran will determine whether Kuch is a ''sexually delinquent person.'' If so, the judge could sentence Kuch to prison for any amount of time, from one day to a year, on top of the sentence from the initial charges, which carry up to 15 years in prison.

Kuch's defense attorney, Kathryn Fehrman, argued that Michigan's statute on sodomy and bestiality is vague and does not outlaw sex with a dead dog. Kuch is accused of sexual contact with the carcass of his girlfriend's dog on Oct. 20, about a week after the animal had been hit by a car. The alleged crime occurred near the Forest Day Care Center, 2169 W. Midland Road, on a school day. The teacher was leading an Animal Control officer to the dead dog so he could dispose of it when the pair discovered Kuch, who allegedly scuffled with the officer before fleeing into the woods.

Not so sure that I could be the attorney to make the argument that the statute on sodomy and bestiality "is vague and does not outlaw sex with a *dead* dog." Yikes. Perhaps even more troubling is the fact that this is not the first such story to catch The Legal Reader's eye; an earlier similar story involved Bryan Hathaway who was accused of having sex with a dead deer. His defense? Eerily similarly, he also argued that because the deer was *dead* his actions were not covered by criminal statutes.

2. Misspelled Tattoo
Courtesy of How Appealing comes the sad story of Michael Duplessis of Chicago. Michael wanted to have "CHI-TOWN" tattooed onto his chest above a rendering of the Chicago skyline. Unfortunately, the artist misspelled the tat and put "CHI-TONW." Could proofreading be more important in any profession than that of tattoo artist? More details available courtesy of Chicago Business

A Fourth Amendment Problem?

The San Francisco Chronicle reported last week on a decision by the Ninth Circuit ruling that "Federal agents were entitled to search a San Francisco man's home computer after learning that he had been sent e-mails by a child pornography trafficker, without needing evidence that he had solicited or read the messages."

The decision was in the case United States v. Kelley. The decision was handed down by a divided panel of the appellate court, on which Ret. U.S. SCOTUS Justice Sandra Day O'Connor sat.

As the Chronicle reported:

The e-mails, found in a February 2005 search of Kenneth M. Kelley's computer, contained numerous pictures of sex acts by young boys, officers said. Kelley was indicted a month later on charges of possessing and receiving child pornography and is awaiting trial.

A federal judge ruled the search illegal in July 2005, noting that people frequently receive unwanted e-mail and saying that authorities need to have evidence that the recipient intentionally violated the law in order to justify a search. The Ninth U.S. Circuit Court of Appeals disagreed Thursday in a 2-1 ruling, with the deciding vote cast by retired U.S. Supreme Court Justice Sandra Day O'Connor, part of her temporary assignment to the appeals court in October.

Although the nine messages that were sent to Kelley in a nine-month period before the search could all have been spam, the circumstances of their delivery indicated at least a "fair probability'' that he had received them willingly, Judge Pamela Rymer said in the majority opinion, joined by O'Connor.

Rymer said the e-mails, which contained numerous pictures of sexual conduct by young boys, were also found by federal agents in the computers of a distributor of child pornography and a collector. She said they had been sent on different occasions to two screen names that Kelley used.

"The reasonable inference ... is that Kelley was part of (a) network of persons interested in child pornography primarily involving young boys,'' Rymer said. "As a matter of practical, common sense, this is unlikely to occur without prior communication or connections."

Dissenting Judge Sidney Thomas said previous rulings upholding computer searches have required authorities to produce evidence about the computer owner.

"Lowering our standards of probable cause to permit government intrusion into private residences based solely on proof of mere transmittal of unsolicited e-mail constitutes an unwarranted erosion

The case generated some analysis by Professor Kerr over at Volokh Conspiracy. Professor Kerr acknowledges that "the parties agreed that the warrant was valid only if the affidavit showed probable cause that Kelley knowingly received the images, not just that the images were there in the account." Kerr argues that this was an improper focus and resulted in an incorrect Fourth Amendement query. According to Kerr, "both the majority and dissenting opinions focus on whether the affidavit offered sufficient evidence that Kelley was a knowing recipient of the images rather than someone who was being "spammed" with the e-mails without knowing about it or against his will. The majority says that there was enough evidence to conclude that Kelley had asked to be a recipient of the e-mails; Judge Thomas concludes that there was a good chance that Kelley was an unwilling recipient and therefore that the warrant was invalid."

Kerr argues that the focus, instead, should have simply been on whether there was child pornography in the email account at all. Kerr makes the case, in his post and in the comments thereto, that the underlying offense being the transmission of child pornography in violation of 18 U.S.C. 2252(a)(1) & (a)(2) means that it does not matter whether Kelley himself was suspected of any criminal activity for a warrant to search his email to be valid -- the question should have simply been whether searching the email account would result in the discovery of evidence of criminal activity, regardless of "who" the criminal might have been. Here there was sufficient evidence to suggest that child pornography would be found in Kelley's email, regardless of whether he knew about it, solicited it, or even opened it, which should have been enough to support searching. The question of whether Kelley was guilty of knowingly receiving, etc., would require further proof, of course, of Kelley's knowledge and intent, but that has nothing to do with the underlying warrant in this case.

Interesting case, and interesting discussion. Go check out the VC post and comments for more thoughts.

Other coverage:
Volokh Conspiracy.
How Appealing.