Kierkegaard Lives

Two Sides To Most Stories: NYT School-Bullying Story Under Fire

2008-04-09T09:47:00.002-05:00

This story courtesy of Overlawyered.com: A NYT school-bullying story comes under scrutiny. It concerns a story that recently ran in the New York Times featuring the plight of an Arkansas boy who claimed to have been bullied at school repeatedly, despite the pleas of his family to school officials, over a long period of time. The eventually resorted to legal action. The story, and the boy's subsequent appearance on the Today Show, evoked a great deal of sympathetic reaction.

According to Overlawyered:

The article generated a big reaction, especially after young Wolfe himself appeared on the Today show to discuss his plight. Most observers seemed to agree that the harrowing tale lent credence to the whole idea of using lawsuits as a way of responding to bullying in schoolyards, Facebook, etc. -- an idea that, coincidentally or otherwise, is the subject of an increasingly visible campaign these days. Even as level-headed an educational observer as Joanne Jacobs wrote on her blog, "Normally, I'm anti-lawsuit, but this may be the only way to bully the bullies and the principal to crack down." Huffington Post writer Jonathan Fast cited the article as evidence that schools should adopt "zero tolerance" policies on bullying. Some of the many other blog reactions are assembled here (e.g.: Marcotte, Greenfield, DadTalk, The Common Room).

Unfortunately, it turns out now that the picture painted by the NYT and Today only told one side of the story. Apparently the "poster child" for victims of school-bullying has a history of bullying himself. According to a story in the Northwest Arkansas Times, school and police records document Wolfe's history of bullying other students. One incident was severe enough that police investigated a report that Wolfe had plans to bring a gun to school; no charges were filed. The story also documents this example of Wolfe's alleged past actions:

Dylan Gray smiles as he sits on the couch on a cool spring night and tells a story of a boy at school who likes to call him names, like stupid or retarded. The couch is a nice change from the wheelchair to which his muscular dystrophy normally confines him.

This same boy sneaks up behind Gray and screams in his ear, which is sensitive to noise because of his medical condition. As Gray relates the experience, this next-door neighbor once pounded him in the back of the head several times with a medium-sized rubber ball despite Gray's protest.

The story sounds familiar, perhaps as familiar as the one the national media brought out last week about Billy Wolfe, the Fayetteville High School sophomore who recently filed a lawsuit against a number of students he claims has bullied him. The only difference is that in Gray's story, Wolfe is the bully and Gray is the victim.

Certainly this does not mean that Wolfe himself was not bullied. This does not mean that his allegations and lawsuit are baseless. This does not mean that the school and other defendants in the lawsuit failed to take proper measures to respond to complaints. What it does mean is that the initial story, as reported by the NYT and Today, painted a picture of a victim with no idea why he was singled out by "bullies" and failed to present the other side of the story. It's a sad and unfortunate story all the way around.

Hat-Tip:
Overlawyered.com (April 9, 2008)

"Pole Tax" Struck Down in Texas.

2008-04-07T08:20:00.003-05:00

The LA Times is reporting that a Texas court has struck down legislation that imposed a $5-per-patron fee on strip clubs. The "pole tax" was purportedly instituted in an effort to raise more than $40 million annually for anti-sexual-assault programs and healthcare for the uninsured.

According to the Times:

The fee, which took effect Jan. 1, infuriated the owners of Texas' 162 strip clubs, who said politicians were cynically taxing a population they knew would not fight back. After all, critics reasoned, men who make a habit of drinking and stuffing currency in the attire of scantily clad women are usually not eager to tell the world about it at legislative hearings.

"It's not like Al Sharpton is going to show up and protest that we're being discriminated against," said a man who identified himself only as Dave, as he exited the Penthouse Club in Houston.

In striking down the tax, the court held that the pole tax was unconstitutional, finding that it infringed on 1st Amendment rights to free expression. The court held that the pole tax did not pass constitutional muster because, among other things, indigent healthcare had no connection to strip joints. Legislation which infringes on 1st Amendment liberties must pass a heigh scrutiny review. "There is no evidence that combining alcohol with nude erotic dancing causes dancers to be uninsured," the court wrote.

On one side of the issue, state Rep. Ellen Cohen of Houston, the former head of a women's shelter, who authored the law and garnered bipartisan support for it, commented that "We need more funding for sexual assault victims, to get the word out and to educate people. That's what this is all about, and there is general agreement that it is a good thing."

On the other side of the issue, Stewart Whitehead, an attorney for the Texas Entertainment Association, commented that adult businesses in Texas support rape crisis centers and other similar programs, but opposes strip clubs being singled out for taxation. "We hope this sends a message nationally that these establishments are protected by the 1st Amendment and you can't impose an unfair tax on them just because they are an easy political target," Whitehead said.

According to the Times, "Texas lawmakers tried to pass a fee on strip clubs in 2004 to finance education, but the levy, derogatorily dubbed 'tassels for tots,' failed."

Hat-Tip:
How Appealing (April 7, 2008)

Google Sued for Displaying "Boring" House on Google Maps Street View

2008-04-07T08:04:00.002-05:00

The Smoking Gun is reporting that Aaron and Christine Boring of Pittsburgh are suing Google for “intentional and/or grossly reckless invasion” of privacy because their luxurious Pittsburgh home is viewable on the internet through Google Maps' Street View feature.

In the suit, the Borings allege that they bought their house -- which has two garages and a swimming pool -- in 2006 “for a considerable sum of money” and that a significant factor in their purchase decision was "a desire for privacy.” Unfortunately for the Borings, when Pittsburgh was added to the cities covered by Google Maps’ Street View feature, the Borings' home became viewable to the whole world. The Borings allege that this has caused them mental suffering and has diminished the value of their home, and they have requested $25,000 in damages.

According to WSJ Law Blog:

A Google spokeswoman issued the following statement:

There is no merit to this action. It is unfortunate litigation was chosen to address the concern because we have visible tools, such as a YouTube video, to help people learn about imagery removal and an easy-to-use process to facilitate image removal.

As a matter of policy, imagery for Street View is taken in public streets and what any person can readily capture or see in the public domain. Street View is a popular, engaging feature that allows people to easily find, discover, and plan activities relevant to a location.

According to Techtree.com, "While Google is believed to be reviewing the suit, the pictures now stand removed from their Web site."

Hat-Tips:
WSJ Law Blog (April 4, 2008)
PointOfLaw.com (April 7, 2008)
Law.com (April 7, 2008)

Kansas Governor Signs Anti-Funeral-Protesting Law

2008-04-04T16:10:00.002-05:00

JURIST reported yesterday:

Kansas Gov. Kathleen Sebelius [official website] Thursday signed legislation [press release] that bans protests within 150 feet of a funeral one hour before, during and two hours after the end of a service. The Kansas Funeral Privacy Act [PDF text; supplemental note, PDF] also prohibits impeding a procession by obstructing a public street or sidewalk. A similar law was struck down [JURIST report] by the Kansas Supreme Court in March. The court ruled that the previous law's judicial trigger provision [JURIST report], which said the law could not be enforced until it was declared constitutional by a state or federal court, invalidated the entire law as it would make the courts an "advisory panel" to the legislature. The new law does not contain the provision.

The law was passed in response to picketing at military funerals by members of the Westboro Baptist Church [. . . JURIST news archive], who claim that US soldiers have been killed because America tolerates homosexuals. At least 37 other states have passed similar laws in response to the group, and a federal law [JURIST report] restricting protests at Arlington National Cemetery and other federal cemeteries has also been passed. AP has more.

Prior Kierkegaard Lives Posts on Related Subjects:
"Update: Legislation on Military Funeral Protests, Fred Phelps, and the Patriot Guard Riders" (June 2, 2006)
"Update: Military Funeral Protests, Fred Phelps, and the Patriot Guard Riders" (May 10, 2006)
"Patriot Guard Riders Vs. Fred Phelps" (February 22, 2006)

Bryan Garner's Interviews with SCOTUS on Advocacy and Writing

2008-04-04T09:21:00.002-05:00

Over at Bryan Garner's LawProse website, you can access videos of Garner's 2006-2007 interviews with eight of the nine SCOTUS Justices concerning their thoughts about legal writing and advocacy.

According to the site:

In 2006-2007, Bryan Garner interviewed eight of the nine Justices about legal writing and advocacy. These are the complete interviews. . . .

LawProse is making these interviews available as a public service. Anyone may freely use these videos for educational purposes, with appropriate attribution to Bryan Garner or LawProse.

Hat-Tips:
The Legal Reader (March 11, 2008)
How Appealing (March 11, 2008)
How Appealing (March 10, 2008)

Updates

2008-04-02T15:10:00.003-05:00

So, it's been slightly less than 1 year since I've had time and access to post and update. But I'm really hoping that's going to change. If you happen to check out any of the links listed at the right and find any of them to be broken, "on hiatus," or otherwise invalid, please post a comment. I'm working on trying to get through them and do some "cleaning," but I'd appreciate any help.

... and hopefully I'm back.

Summertime Advice for Law Students

2007-06-08T10:34:00.000-05:00

This post concerns a couple of topics I've meant to post about for some time now, but have just not previously gotten around to. Today's as good a day as any to do it, I suppose.

It's summertime, and many law students may be thinking about enjoying their summer clerking positions, taking a break from thinking about how to be more successful in the classroom, etc. Nonetheless, there have recently (in a very relative sense) been a couple of topics floating around about how law students can be more successful. Because I have many friends involved in legal education, I thought I'd pull these couple of ideas and the related posts together here, so they can be shared with those students who might have some time this summer (or later -- this post won't be going anywhere) to work on being more successful students next year.

1. More Effective Reading:

Raymond Ward, over at the (new) legal writer blog, had a POST back in March on the subject of the correlation between "how" law students (and other legal readers) read and how "successful" they are, whether in terms of better grades or efficiency in legal practice. The post was referring to work done by Professor Leah Christensen of St. Thomas Law School in Minneapolis/St. Paul.

Professor Christensen's papers would be good summer reads for law students to gain an appreciation of this correlation and to consider ways in which their own reading might be more effective. In the short term this could translate to improved grades. In the long term this could translate to more success in practice. Both papers are available for free on The Social Science Research Network:

Legal Reading and Success in Law School (August 2006).
The Paradox of Legal Expertise: A Study of Experts and Novices Reading the Law (2007).

2. Secrets of Successful Legal Writing Students:

Also back in March, Ward POSTED about a research paper authored by Anne Enquist of Seattle U. School of Law studying the secrets of successful legal writing students. In the paper, Professor Enquist discusses a study done at Seattle U. comparing several legal writing students, their individual habits and practices, and their respective levels of succcess in the legal writing class. As Ward noted:

The study suggests (not surprisingly) that a systematic, organized approach is the key:

[T]he study reveals not only the results of working harder but the specifics of working smarter. The secrets to working smarter included note-taking and note-reviewing strategies; how to divide one’s time between researching, drafting, revising, editing, and proofreading; how to research and read cases efficiently; strategies for efficient time management; techniques for organizing one’s research and staying organized while writing; and accessing the professor as a primary resource. Pitfalls to avoid included procrastination, poor management of distractions, and scapegoating.

Professor Enquist's paper is also available on SSRN.com:

Unlocking the Secrets of Highly Successful Legal Writing Students (March 2007).

Update: Fordham Symposium on Judicial Selection Articles Published

2007-06-05T08:09:00.000-05:00

This references a past post on here, about a symposium on judicial selection that occurred in April 2006 at Fordham Law School in New York.

The articles concerning that symposium have now been published in the Fordham Urban Law Journal, Volume 34, dated January 2007. Thanks to Norman Greene for leaving a comment to let us know.

See: ENotes listing of contents for 34 Fordham Urban Law Journal.

Brian Leiter's New "Rankings" of Law School Faculty Citations.

2007-06-05T06:59:00.001-05:00

Professor Brian Leiter, of University of Texas-Austin School of Law, is in the midst of conducting a study to determine the top law schools based on citations to their law school faculty. He has done this sort of ranking before (see 2005 Rankings for example). In the 2005 results, Leiter indicated:

This is a ranking of the top 30 law faculties based on a standard “objective” measure of scholarly impact: per capita citations to faculty scholarship. We looked only at the top quarter of each faculty, largely for logistical reasons--it made the study more manageable--but partly because the scholarly standing of a school depends more on its best faculty, than its average.

On June 3, Leiter posted the following (bolding in the original) on his Law School Reports Blog:

Over the summer, I plan to carry out a new citation study, and in the fall, we may (finally) undertake a new on-line reputational survey. To that end, we've compiled draft lists of faculty for 49 law schools that appear likely to rank in the top 35-40 by these different measures. We may add a few more faculties to the mix, especially for purposes of a reputational survey. The faculty lists include only academic faculty (an effort has been made to exclude clinical, adjunct, and legal writing faculty, since these studies will focus on scholarly output). The ranking study will be per capita across the whole faculty, since many have worried that by looking only at the top quarter of the faculty in the past produced distorted results because of one or two very highly cited faculty at certain schools (e.g., Chemerinsky at Duke, or Delgado at Pittsburgh). . . .

Leiter's call has generated some criticism, which he has not handled particularly well. Specifically, the decision to exclude ALL clinical and legal writing faculty from the study would seem to leave a gaping hole in the credibility of a study about which law school faculty is most oft-cited. When Richard Neumann of Hofstra Law, for example, pointed out the flawed methodology of completely ignoring all clinical and legal writing faculty, Leiter responded and referred to Professor Neumann as "someone named Richard Neumann," suggested that Professor Neumann has a "chip on the shoulder," and referred to Professor Neumann's comments as "irrational and self-serving." Never mind that Professor Neumann is nationally known, has authored significant text books, teaches both clinical and non-clinical courses, and is likely more recognizable in the community of law school faculty than Leiter.

It's worth noting that Leiter is also, per his own request for input, starting with a list of schools he "expects" to be the top schools. So not only is he ignoring a potentially very large portion of highly cited legal scholarship by clinical and legal writing faculty at law schools, he is further beginning with a list of schools he expects to be ranked at the top -- based in part on past studies that have also ignored significant legal scholarship. And then he seems shocked when others point out the flaws in his basic premises. It's worth noting that Leiter *does* include part-time and adjunct faculty in his evaluations (such as Judges Posner and Easterbrook at The University of Chicago) -- while, again, leaving out full-time, tenured or tenure-tracked faculty in clincial and legal writing.

Leiter seems to completely ignore the changing landscape of legal education. Clinical and legal writing faculty, unlike as recently as 10 years ago, are now increasingly tenured or tenure tracked, and engage in every bit as meaningful scholarship on a variety of legal topics as non-clinical faculty. Most clinical and legal writing faculty are now eligible for summer research grants, and studies by the Association of Legal Writing Directors (ALWD) indicates that there is a significant trend toward requiring legal scholarship of such faculty. It is not difficult to find information about the growing impact of clinical and legal writing faculty in the world of scholarship -- peruse the sources in this post at The Legal Writing Professors Blog for some examples.

As a final matter, it's worth noting some very basic reasons why Leiter's study is flawed, beyond the seemingly obvious fact that ignoring a significant number of law schools entirely, and then ignoring a significant portion of the faculty at the schools that are considered, casts doubt on the credibility of the survey results. In the comments on Leiter's blog, Dean Stephen Ellman of the New York Law School, commented:

In sum, it is probably true that a citation survey of only non-clinical faculty would measure the impact of the work of those who are, in general, the most likely to be the most active authors -- though not without some striking omissions and no doubt with the inclusion of a number of very unproductive classroom teachers. But such a survey would miss not only the work of a sizable number of people who are genuinely and productively committed to scholarship, by reason of professional obligation and personal inclination, but also the impact of the institutional decisions that have concentrated these people at some schools rather than others.

It seems fair to add that the task of separating clinical and nonclinical faculty is itself so difficult that undertaking it is bound to generate errors along the way. Many clinicians, of course, have titles that are identical to those of their nonclinical colleagues, and so they cannot be distinguished by title. Many also cannot be distinguished by contractual status, since they hold full, regular tenure. In addition, many clinicians do not teach only clinically. Suppose a clinical professor also teaches Civil Procedure, and so his or her teaching time is 1/4 clinical, 3/4 nonclinical. Would this professor count as a clinician? What if his or her teaching load was half clinical and half nonclinical? Or 3/4 nonclinical and 1/4 clinical? Or suppose that the professor in question is, initially, a nonclinical faculty member, but over time comes to spend a portion of his or her time teaching in a clinic? Which of these people (and I think there are a lot of people who fit one or another of these models) would count as clinicians, and why? I think that figuring out the right time-share definition of "clinician" won't be simple, but it’s important also to keep in mind that formulating the definition may well be easier than collecting the data with which to apply it.

One other anomaly bears mentioning: a failure to count citations to scholarship by clinicians will mean that citations to otherwise comparable works of scholarship, perhaps appearing in the pages of the same law review issue, will be counted, or omitted, depending solely on the identity of their author. An issue of the Journal of Legal Education, for example, might include articles on law school pedagogy by both clinical and nonclinical faculty – but only citations to those written by the latter group would be counted. Clinicians, it should be noted, write on a great many topics; a symposium on torts, for instance, might feature articles by clinicians and nonclinicians, but again only those written by nonclinicians would be accounted for. Or to take one more example, there may be instances where a clinician from one school and a nonclinician from another school co-author a piece (I’m not speaking hypothetically, since I know of a book that fits this description precisely); citations to the book, or article, would be credited to the nonclinician and his or her school, but not to the clinician and the school he or she taught at.

Like most random law school rankings, Leiter's must be taken with a grain of salt. Leiter's failure to recognize the significant contributions that clinical and legal writing faculty make to legal scholarship, at least with respect to a good number of schools -- I think you could look at Mary Beth Beazley at Ohio State as one example of a clinical/legal writing scholar who is both highly published and very highly cited -- is reason enough to look at his results with a highly skeptical eye, no matter how highly his own school might end up ranking in his study (top 10 in 2005, by the way).

Federal Partial Birth Abortion Ban Upheld

2007-04-18T12:43:00.000-05:00

Although I don't have time to provide any thoughts or analysis on the ruling -- other than to say it's a shame that precedent means so little to this Supreme Court than a simple change of one member means throwing out a very recent decision on identical issues -- I don't want to fall into a habit of not posting again just because I'm busy.

SO. Instead, I'll point to the following other blogs which provide some insight, analysis, summaries, etc., of the recent SCOTUS decision upholding the Federal Partial Birth Abortion Ban:

ACS Blog: BREAKING: Supreme Court Upholds Abortion Ban.
SCOTUS Blog: Court upholds federal abortion ban.
TalkLeft: Alito: The Chickens Come Home to Roost.
Althouse: The federal "partial bith" abortion ban is upheld.

**4/19/07 UPDATE:**
Obviously there is a ton of information on the blawg-o-sphere about this decision. Here a couple of the more important followups:
ACS Blog: Wednesday Roundup: Reproductive Education.
ACS Blog: Justice Ginsburg's Summary of Dissent.

**4/19/07 UPDATE #2:**
A couple of more important and valuable links about the decision:
How Appealing (with many external links included).
SCOTUS Blog: Commentary: Some Consequences of Carhart II.

USN&WR Annual Rankings.

2007-04-01T21:23:00.000-05:00

Just because everyone else in the blawg-o-sphere seems to have a link to them, I guess I better act like a sheep and follow suit:

BAAA (USN&WR Law School Rankings -- Top Law Schools).

Notes from the Midwest:
University of Iowa (#24)
University of Colorado-Boulder (#36)
University of Kansas (#66)
University of Nebraska-Lincoln (#77)
Creighton University (Tier #3)

Virginia to Pay $1.9M to Wrongfully Convicted Man.

2007-03-28T07:45:00.000-05:00

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.

Hat-tip:
How Appealing.

More coverage:
Washington Post (March 28, 2007)

A Writing Lesson: Active vs. Passive Voice.

2007-03-27T07:26:00.000-05:00

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!

LawComix -- Even Lawyers Need a Comic Strip!

2007-03-19T22:58:00.000-05:00

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!

Hat-tip:
Blawgs Blog (3-18-07)

The Story of Alejandro DeJesus, from ACS Blog.

2007-03-16T07:44:00.000-05:00

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."

Ahhh! Concise Justice!

2007-03-14T22:22:00.000-05:00

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:

Deny.

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.

Hat-tip:
the (new) legal writer (March 14, 2007).

Female Judges in Egypt

2007-03-14T22:13:00.000-05:00

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.

More:
Jurist (March 14, 2007).

Hat-tip:
How Appealing (March 14, 2007).

New Additions to the Blog-Roll.

2007-03-12T22:48:00.000-05:00

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?

New Additions to the Blog-Roll.

2007-03-07T20:58:00.000-06:00

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

2007-03-07T17:10:00.000-06:00

There's a commentary worth reading over at Jurist.com 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.

On the Lighter Side ...

2007-03-05T18:46:00.000-06:00

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?

2007-03-05T18:31:00.000-06:00

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.

Writing to Win Symposium at Washburn Law School, Topeka

2007-02-27T13:22:00.000-06:00

A friend of mine is participating in an upcoming Symposium at the Washburn School of Law in Topeka, KS. I figured that makes as good a subject as any to get back into blogging with.

The Symposium will be held on Friday, March 9 and Saturday, March 10. You can view the entire program brochure here. As noted on the website:

Registration for the Writing to Win symposium is complimentary. Seating for the symposium is limited. To ensure sufficient accommodations for guests, you must pre-register by phone at (785) 670-1105. When you register, please note special accommodations you may require.

**Special thanks to the following fellow bloggers for picking up on this:
the (new) legal writer (February 27, 2007)
Blawgs Blog (March 4, 2007)

Updates and New Posts

2007-02-27T13:16:00.000-06:00

I'm in the process of finally getting back to law-blogging. I'm starting today by checking for broken links in my blog-roll, and trying to get my archives all updated. Hopefully within the week I'll get back to actual blogging. I know I said back at the end of December that the hiatus appeared to be over, but I was wrong. Now I'm confident that it is, indeed, going to end.

Actually, I'm going to try to get something new put up today or tomorrow, and then try to more regularly blog again. Thanks for the patience, and the inquiries from so many of you.

End of Hiatus

2006-12-30T09:51:00.000-06:00

I've been without internet access for most of the past couple of months. Hopefully this situation will be remedied soon and the Kierkegaard Hiatus will end. Thanks for your patience in the meantime.

Expose: "Justice Courts" in New York State

2006-09-28T10:45:00.000-05:00

The New York Times recently ran a series of stories examining "Justice Courts" in the State of New York. Justice Courts are small "courts" throughout the state, funded by towns and villages, and utilizing many non-lawyers to act as "judges." Although the bulk of the cases handled in these courts are matters like traffic offenses, there are other more serious cases that end up in these courts: criminal offenses where defendants can be sentenced to up to two years in jail, domestic matters, etc.

These types of courts used to be relatively commonplace nationwide when lawyers were fewer and farther between and alternatives were necessary to dispense justice in rural areas. Still, according to the Times about 30 states still have some form of these courts. Although many states have reigned in the authority of these courts in recent years, or have required specific training and education (like maybe a law degree) for people to serve as judges, New York still allows people to sit as judges in these courts with less schooling than is required to become a licensed manicurist or hair stylist.

The New York Times expose detailed a year long investigation into these courts and some of the more harrowing abuses of power therein. It's a long read to get through all of the story, but it's also a fascinating read and well worth the time and effort.

Read the expose:
Part I: "In Tiny Courts of N.Y., Abuses of Law and Power"
Part II: "Small-Town Justice, With Trial and Error"
Part III: "How a Reviled Court System Has Outlasted Critics"

Hat-tip: The Legal Reader; September 24

Jill Carrol's Story: Parts IX and X

2006-09-21T13:25:00.000-05:00

Links to the final parts of Jill Carrol's Story:

Part IX: The Muj Brothers
Part X: Freedom

Previous:
Index
Introduction: 82 Days in Captivity
Part I: The Kidnapping
Part II: Spy With A Homing Device
Part III: The First Video
Part IV: A Mother As A Suicide Bomber
Part V: Mujahideen Movies
Part VI: Reciting Koranic Verses
Part VII: False Hopes
Part VIII: A New Enemy

Jill Carrol's Story: Parts VI, VII, VIII

2006-08-23T10:45:00.000-05:00

In Part VI of her story, Jill Carrol writes about her interactions with the wife of one of her captors, and the lack of sympathy she received from the woman. Carrol writes about being forced to study and recite verses from the Koran:

Part of Um Ali's growing hardness toward me came as I tried to let her know that, despite the many hours of reciting the Koran with her, I didn't plan to convert to Islam.

In the beginning I was an eager student, as I saw how much it pleased them whenever I showed an interest in learning. But I soon realized I had made a dangerous mistake.

The more I let my captors teach me, the more they expected me to convert. After a few weeks, the question was always, "Why haven't you come to Islam yet?"

I tried to put the brakes on delicately, afraid of what they might do if they thought I was rejecting Islam. How could I tell them that adopting a new religion and code for living wasn't possible when I was held captive, racked with despair, and in fear daily for my life?

One afternoon, when I was exhausted from listening to Um Ali repeat verses of the Koran over and over so I could memorize them, I said, "I don't understand the Arabic in the Koran, and so I can't understand what it really means."

"We'll bring you an English Koran," said Abu Ali, who had overheard me. "You want this?"

They were always insisting that they didn't want to pressure me into converting, while at the same time asking me why I hadn't converted yet.

"Oh, sure," I said.

Abu Ali whipped out his cellphone, and made a call. "You have a Koran in English?" he said. "Quickly, quickly, bring it."

He sounded almost frantic as he gave the person on the other end of the line directions about where to meet him.

After about 20 minutes he returned, bearing a small, green Koran. Emblazoned in gold on the cover was "Le Qur'an." It was a French translation - not an English one.

Later, I tried telling Um Ali, gently, that I probably wasn't going to convert after all.

She said she would be angry if I didn't convert, given the time she had spent teaching me.

"We are afraid for you and don't want you to go to hell," she said. "We are afraid that we'll see you [on Judgment Day] and you'll say, 'Why didn't you save me?' "

In Part VII, Carrol writes about passing time in small locations where she was periodically held, about her captors' reactions to various people calling for her release, and about discovering that the release of a handful of Iraqi women would make it more difficult for her captors to justify killing her.

In Part VIII, Carrol writes about the emergence of conflict between her captors and Shiites and how it impacted the importance of her captivity.

Today:
Part VI: Reciting Koranic Verses
Part VII: False Hopes
Part VIII: A New Enemy

Previous:
Index
Introduction: 82 Days in Captivity
Part I: The Kidnapping
Part II: Spy With A Homing Device
Part III: The First Video
Part IV: A Mother As A Suicide Bomber
Part V: Mujahideen Movies

Next: Part IX: The Muj Brothers

Jill Carrol's Story: Part V

2006-08-18T14:52:00.000-05:00

In Part 5 of her personal kidnapping story, Jill writes about how her captors made her watch DVDs of them and their fellow Al-Qaeda members waging war and killing American soldiers. She writes:

One video showed all these men who were going to be suicide car bombers. They interviewed them, and then showed a field, with cars lined up, and each man getting into a car - waving, just euphoric - and then driving off.

Others had pictures of an American Humvee driving along - and then it would blow up, and they'd cut to a graphic of a lightning flash, and thunder clapping.

She also writes about how she came to understand that, to her captors, killing Americans was "a righteous path, this was their work for God."

While I sat there watching them, I felt the insurgents were sending me a message: They hate Americans so much, they're proud of these attacks. It's normal to them.

Surely they were going to kill me. How could they not?

Today:
Part V: Mujahideen Movies

Previous:
Index
Introduction: 82 Days in Captivity
Part I: The Kidnapping
Part II: Spy With A Homing Device
Part III: The First Video
Part IV: A Mother As A Suicide Bomber

Next (Sunday Night)
Part VI: Reciting Koranic Verses

Federal Judge: Domestic Spying Program Unconstitutional

2006-08-17T12:32:00.000-05:00

I'll try to get the Wiretapping Link Repository updated later today or tomorrow. But for now, a federal judge today has ruled that the NSA program is unconstitutional.

LINKS:
Memorandum Opinion
Injunction
Jurist Coverage
MSNBC Coverage
CNN Coverage
Fox News Coverage
NY Times Coverage
LA Times Coverage
Washington Post Coverage

Blogs:
SCOTUS Blog
ACS Blog
Firedoglake
TalkLeft

Jill Carroll's Story: Part IV

2006-08-17T10:41:00.000-05:00

In Part 4 of her story about her kidnapping, Jill Carroll relates the story of learning that one of her kidnappers was proud that his wife planned to be a suicide bomber. Jill writes:

I was still unused to captivity, still learning the boundaries, both physical and mental, that my kidnappers had imposed. I didn't want to offend. But I was shocked at the talk of a mother's suicide; shocked that Um Ali would blush at her husband's praise of this plan.

"Oh, I didn't know women could be car bombers," was all I could muster.

Later I was told that this was the only way women could be part of the mujahideen. The men could have the glory of fighting in battle. Women got to blow themselves up.

Today:
Part IV: A Mother As A Suicide Bomber

Previous:
Index
Introduction: 82 Days in Captivity
Part I: The Kidnapping
Part II: Spy With A Homing Device
Part III: The First Video

Tomorrow:
Part V: Mujahideen Movies of Attacks

New Legal Writing Blog Blog-rolled.

2006-08-17T10:36:00.000-05:00

I've added "the (new) legal writer" to the blog-roll. There's lots of great legal writing links and tips, and it's well worth checking out.

DUI: "Defending" Under the Influence

2006-08-17T10:25:00.000-05:00

A judge in Las Vegas ordered a blood-alcohol test for a defense attorney who was slurring words. The judge then declared a mistrial and declared the attorney too tipsy to effectively argue his client's kidnapping case.

According to AP, via the New York Times:

''I don't think you can tell a straight story because you are intoxicated,'' the judge told Joseph Caramango as she declared a mistrial for his client.

Caramango, 41, acknowledged in court that he was drinking the previous night, but maintained he was not drunk. If convicted, his client faces life in prison.

''I don't believe I've committed any ethical violation,'' Caramango said Tuesday, disputing the accuracy of the breath-alcohol test. ''If it proved anything, it proved I was not intoxicated.''

Clark County District Judge Michelle Leavitt announced Caramango had a blood-alcohol level of 0.075 percent. Nevada's legal blood-alcohol limit for drivers is 0.08 percent.

In an exchange recorded by courtroom video, Caramango arrived about 90 minutes late for trial and was slurring his words.

The judge asked if anything was wrong, and Caramango said he suffered a head injury in a rear-end car crash while driving to court.

One of my favorite parts of the news account is the following:

Caramango also identified a woman who accompanied him to court as his ex-girlfriend, Christine, but when questioned by the judge the woman identified herself as Josephine. She said they just met about 20 minutes earlier at a bar and coffee shop.

Classic. Somehow it is apparently "not immediately clear if [Caramango will] face discipline by the State Bar. Check out the lengthy video clips below and see what you think.

More links:
Legal Reader (hat-tip)
Court TV (complete with LENGTHY VIDEO excerpts)

UPDATE: Porco Murder Trial in New York.

2006-08-16T10:43:00.000-05:00

As previously blogged about HERE and here the trial in New York of Christopher Porco, accused of murdering his father and brutally attacking his mother, has been going on recently.

On Thursday last week, a jury returned a guilty verdict. A link to the video of the verdict is available here.

Comments and reaction of a family member can be read here. The family member writes:

So as not to leave you all on a down note I will say that if anything good has come from this it’s that much of our family is as strong as or stronger than we have ever been. I personally hale from Joan’s side of the family, so even though I considered Peter one of my favorite relatives, I was related to him only by marriage. But through this experience, I, and many other family members, have had the opportunity to grow closer to the extended Porco family, and especially Peter’s sister Patty. If one person has guided all of us through this time it has been Patty. Because of her, I am proud to say that even in Peter’s absence, our two families will remain connected. If there’s a silver lining here, that has to be it.

Jill Carroll's Story: Part III.

2006-08-16T10:20:00.000-05:00

In Part 3 of her story, Jill Carroll writes about the filming of her first video while in captivity. She writes:

I was to say that they were mujahideen fighting to defend their country, that they wanted women freed from Abu Ghraib prison, and the US military, particularly the Marines, were killing and arresting their women and destroying their houses.

And I must cry, on cue.

Abu Rasha donned a jumpsuit and wrapped his head in a kaffiyeh. Two others did the same. I sat down in front of them and the camera rolled.

I started to give my speech. Abu Ali standing behind the camera ran his fingers down his cheeks, to signal that I needed to cry.

It took me a while to work up to the crying part. But I had a lot of pent-up emotion and stress, and by the time we finished, I was crying for real. (Later, I learned that Al Jazeera only aired about 30 seconds - without audio - of that first four-minute tape. The tears were never broadcast.)

Today:
Part III: The First Video

Previous:
Index
Introduction: 82 Days in Captivity
Part I: The Kidnapping
Part II: Spy With A Homing Device

Tomorrow:
Part IV: A Mother As A Suicide Bomber.

Jill Carroll's Story: Part II.

2006-08-16T10:19:00.000-05:00

In Part 2 of her story, Jill Carroll writes about the US military being very near her location early in her captivity, being accused by her captors of somehow contacting the military about her location, about her day-to-day existence in captivity. She writes:

I was moved often. They provided me meals that Iraqis would think fit for guests, as well as small luxuries such as expensive toiletries.

View the neighborhood where Jill was held the first night of her captivity in our interactive map.

Yet I was a prisoner. My captors would unexpectedly explode with bitter accusations that I was a spy, or Jewish, or hiding a homing device. They'd boast about their exploits fighting - and once sharing a meal - with American soldiers while I was in captivity.

In response, my mood would veer wildly. One moment I'd be sure they were going to kill me. The next I'd think they were going to let me go, that it was only a matter of time.

Overall, I just wanted it to be over with, whatever "it" was going to be. I remember being in a hurry to get done with it from the moment it began.

Today:
Part II: Spy With A Homing Device

Previous:
Index
Introduction: 82 Days in Captivity
Part I: The Kidnapping

Jill Carroll's Story: Part I.

2006-08-14T15:03:00.000-05:00

The Christian Science Monitor is now running, in parts to be posted over the next few days (10 parts in all), Jill Carroll's story, in her own words. It's worth your time to check out her account of her ordeal. In Part I, she writes about the kidnapping itself. A group of Sunni's killed her interpreter and took her hostage. She makes the following poignant observation:

[Her interpreter, Alan] and I had been focusing for several months on piecing together a clear picture of Iraq's Sunni community. Their tacit support for the insurgency allowed it to operate; understanding them was key to understanding the forces violently splitting the country.

Now I was to gain the insight we had so long sought. At such a price to Alan, I have never been so desperate for ignorance.

Today:
Index
Introduction: 82 Days in Captivity
Part I: The Kidnapping

Tomorrow:
Part II: A Spy With A Homing Device.

Natalee Holloway Civil Case: Not in New York.

2006-08-06T11:37:00.000-05:00

Back in March I posted THIS POST about the civil case filed by the parents of Natalee Holloway. As I noted then, the problem seemed to be that the parents are from Alabama, suing two men from Aruba, for actions they believe occurred in Aruba, and using Alabama law. But the suit was filed in New York state court.

As TalkLeft has reported, the judge in New York has granted the motion to dismiss, concluding that New York is, in fact, not the appropriate forum for this case. According to CBS News Online:

The lawsuit was dismissed by Judge Barbara Kapnick, who said it shouldn't have been filed in Manhattan. She rejected an argument that if the case were filed in Aruba, it would prompt a media frenzy that could interfere with the investigation.

Kapnick said taxpayers shouldn't have to pay for a case "when their interest in the suit... is so ephemeral."

Stupid Criminals: Stolen ID.

2006-08-06T11:18:00.000-05:00

Last week in Ohio, a watress checked a customer's identification to determine if the customer was legally old enough to drink. The customer handed the waitress a photo i.d. The problem? The photo i.d. was not the customer's, but was actually the waitress' identification, lost last month.

CNN.com reported the story. Needless to say, police said that "[t]he odds of this waitress recovering her own license defy calculation."

You can find more stupid criminals at DumbCriminals.com.

Update on Air Frivolity.

2006-08-02T16:10:00.000-05:00

UPDATE!

According to Oregon Live.com, the idiot who was "tired" of being "mistaken" for Michael Jordan has decided to drop his lawsuit. According to the article:

Heckard did not give a reason for dropping his request for $416 million from Jordan and $416 million from Knight, the shoe company executive he blamed for making Jordan -- and his -- a household face.

Vada Manager, Nike spokesman, said no payment was made to Heckard to get him to drop the lawsuit.

"It's fairly simple," Manager said Monday. "He finally realized he would end up paying our court costs if the lawsuit went to trial."

The lawsuit gained attention in newspapers and magazines and on radio and television -- including comedy monologues -- across the country. It was the subject of online chats around the world.

Like Jordan, Heckard is African American, has a shaved head, wears an earring and likes to play basketball. However, he is about half a foot shorter, 25 pounds lighter and 8 years older than Jordan.

End Air Frivolity.

Previous Post:
Kierkegaard Lives July 13, 2006

"Punk'd at a Deposition."

2006-08-02T14:14:00.000-05:00

There's a pretty interesting post over at Concurring Opinions about a young attorney being "punk'd" by a fellow attorney during a deposition. The basic setup involves a fake deposition in a sexual harrassment case, wherein the young attorney was representing the "victim" being subjected to increasingly objectionable questions. Some of the questions and responses of the "punk'd" attorney are priceless.

As noted in the comments, the "taste" of using this as the subject matter could be questioned, and the outrageous nature of some of the questions is tempered by the unfortunate reality that many such questions often are, properly or not, asked and allowed during depositions in this sort of case.

Nonetheless, the overall effect is pretty good, and if nothing else shows that lawyers DO have senses of humor afterall.

The video:
Candid Camera: Legally Punk'd

Hat-Tip:
Concurring Opinions

Andrea Yates Verdict.

2006-07-27T11:27:00.000-05:00

As has been reported and discussed all over the web, the jury in Andrea Yates' retrial in Texas yesterday returned a verdict of not guilty by reason of insanity.

Instead of rehashing and discussing it here, I'll just point you over to TalkLeft and THIS post. There's a relatively lively discussion going on there in the comments about whether this was a "just" verdict or not.

Personally, I don't know if it was the right verdict or not. I don't know if she truly was insane at the time, or not. If she was, then this was a just verdict; if not, it wasn't. According to a New York Daily News article, a New York psychiatrist who testified in the case is predicting she'll be released soon, no spending years in a mental institution:

Yates, 42, will be committed to a state mental hospital until a judge deems her well enough to be released.

But New York forensic psychiatrist Dr. Michael Welner - who interviewed Yates in May as the prosecution's lead expert - predicted that she would be released quickly because her disorder is being well-managed.

"I expect she will be home soon," Welner said.

Welner, of NYU's School of Medicine, said he respected the jury's "difficult decision" but disagreed with the verdict.

"There's a tremendous amount of evidence supporting the fact that she knew what she was doing was wrong," he said.

Gay Marriage in Nebraska

2006-07-24T15:29:00.000-05:00

Last week, the 8th Circuit Court of Appeals issued an opinion reversing a previous district court opinion which had struck down a Nebraska constitutional amendment defining marriage as being only between a man and a woman. The 8th Circuit held that the issue was entitled only to rational basis scrutiny, not any heightened level of scrutiny, and held that the federal Equal Protection Clause was not violated.

More:
ACS Blog (July 14, 2006)
Legal Reader (July 14, 2006)
MSNBC.com (May 12, 2005) (covering District Court opinion)
Kierkegaard Lives (May 23, 2006) (Gay Marriage No-Win for Bush Administration?)

UPDATE: Porco Murder Trial in New York

2006-07-13T13:41:00.000-05:00

As I recently blogged about HERE, there are some fascinating legal issues raised in a New York murder trial of a man accused of murdering his father and leaving his mother disfigured*; his father was a New York appellate court clerk.

The trial is currently going on, and you can follow the progress at The Porco Trial Blog. The trial has been delayed on a couple of occasions already due to deaths in the families of Porco's defense team, and one of his attorneys has just undergone heart surgery. Last week the prosecution indicated that it could take as long as 5 weeks for the prosecution to get through its case.

Stay tuned, and I'll update when there's more of specific interest to discuss.

*...edited 8/16/06. I inadvertently originally typed here that he was accused of murdering "his parents" when he was actually only accused of murdering his father, while his mother survived the attack. In response to comments, I am editing the post for accuracy.

Shaming Sentences.

2006-07-13T09:02:00.000-05:00

A compilation of posts about shaming sentences over at Sentencing Law & Policy.

The Coulter Plagiarism Story.

2006-07-13T08:49:00.000-05:00

If you have any interest in the story about Ann Coulter being a huge flaming blatant plagiarist (which really shouldn't surprise anyone), go check out this story over at Concurring Opinions.

Then, go over to Crooks and Liars and listen to the MP3 of Adam Carolla hanging up on her after she called in an hour and a half late and then told Carolla she was short on time. It's good stuff.

Infamy or Praise on Air Frivolity.

2006-07-13T08:40:00.000-05:00

Being a huge basketball fan and a huge Michael Jordan fan, I just can't let this recent post over at Infamy or Praise go without comment.

Apparently some guy in Portland is suing Michael Jordan and Nike founder Phil Knight for $832 million because "he's been mistaken as Michael Jordan nearly every day over the past 15 years and he's tired of it." The plaintiff is apparently trying to use defamation as his theory of recovery.

Perhaps the most ridiculous and humorous part of this story is the plaintiff's claim that "Even when I go to the gym I'm accused of playing ball like him (Jordan)." Right.

Needless to say, this claim was filed without the assistance of an attorney. Hopefully because every attorney in the state of Oregon politely told this guy not to let the door hit him in the a$$ on the way out.

Other links:
Oregon TV online story.

UPDATE 8/2/06:
Kierkegaard Lives Update 8/2/06.

Appellate Practice in Nebraska

2006-07-07T11:02:00.000-05:00

A friend of mine has an article in this month's edition of The Nebraska Lawyer Magazine, a publication of the Nebraska State Bar Association. The article, "Appellate Practice in Nebraska: A Primer, focuses on ideas for more effective oral and written appellate advocacy. The article is an excerpt based on a longer article that was published in Creighton Law School Law Review last fall, titled "Appellate Practice in Nebraska: A Thorough, Though Not Exhaustive, Primer in How To Do It and How To Be More Effective, 39 Creighton L.Rev. 29 (2005).

If you're involved in appellate practice, in Nebraska or elsewhere, you might find some useful information and resources by checking out these resources.

**UPDATE:
Thanks to the following blogs for linking to this post about the article:
Appellate Law & Practice (July 7, 2006)
The Legal Reader (July 11, 2006)
Legal Writing Professors Blog (July 12, 2006)

New Law Faculty Blog: Georgetown Law

2006-07-07T09:20:00.000-05:00

The law faculty at Georgetown Law have begun a group blog: Georgetown Law Faculty Blog. Among the ten contributors is Marty Lederman, a regular contributor to such other law blogs as SCOTUSBlog and Balkinization.

Hergert Impeachment Trial: Verdict: Guilty.

2006-07-07T09:14:00.000-05:00

The Nebraska Supreme Court released its opinion in the Hergert Impeachment case today. The Supreme Court convicted him of two impeachable offenses and ordered Hergert removed from office.

According to the Supreme Court:

[I]n the primary and general elections, Hergert intentionally manipulated and violated Nebraska's campaign finance laws, in a scheme to prevent his opponents from receiving public campaign funds. . . . During the campaign and, significantly, after he took office, Hergert intentionally filed false reports of campaign spending in an attempt to cover up his conduct. Hergert's various explanations for his actions contradict one another and are not believable.

You can read the full opinion HERE.

**UPDATE:
Nebraska State Paper, July 7, 2006

Kierkegaard Lives Daily Impeachment Trial Coverage:
Day One Coverage.
Day Two Coverage.
Day Three Coverage.
Day Four Coverage.
Day Five Coverage.

Other Links:
Kierkegaard Lives, May 4, 2006 (discussing arguments on Hergert's Motion to Dismiss).
Kierkegaard Lives, April 28, 2006 (discussing pending impeachment trial).

Nebraska Supreme Court Case Site (with .pdf copies of filings in the case)

The Legal Reader on Judicial Antics

2006-07-05T10:01:00.000-05:00

A series of recent posts over at The Legal Reader have discussed various recent judicial antics, primarily "naughty" judicial antics:

The Exposure of Judge Thompson (Oklahoma)

The culmination of the publicity about Judge Donald Thompson in Oklahoma and his conviction on each of four counts of indecent exposure while on the bench came with this post and this post. It's probably never a good thing when you, as a judge, are on trial for indecent exposure on the bench and your trusted court reporter testifies to having seen your penis at least 15 times, having seen you urinate into a wastebasket during trials, and having seen you shave your scrotum on the bench during closing arguments of a murder trial. More on this story (if you need it) here.

The Suspension of Judge Subryan (New Jersey)

Judge Randolph Subryan received a two month suspension for kissing a law clerk who did not want to be kissed. In addition to the suspension, the state paid out a $300,000 settlement for the related sexual harrassment suit. Expensive kiss.

The Forced Apology of Judge Downey (Florida)

Judge Brandt C. Downey III received a public reprimand and must retire at the end of his term -- and he must sign a letter of apology to fellow judges and the public. Why? Because he admitted to viewing porn on the computer in his chambers, repeatedly, after being warned to stop.

But before we stop with all these "naughty" judicial antics, let's also point out a good story:

Successful DWI Justice

Judge James Dehn in Minnesota has had success with DWI cases by developing a way to reach some of the state's most dangerous drunken drivers and cut their repeat offenses in half. His technique includes imposing jail sentences to be served over two years, in the months of July and December. If the defendant can appear before the judge and convine him they've been sober, he suspends the month in jail. And it seems to be working.

Federal Sentencing: "Reasonableness" Review.

2006-06-21T08:50:00.000-05:00

Sentencing Law & Policy is always a great resource for keeping up with federal sentencing developments. One of the best posts over there is Professor Berman's "Tracking Reasonableness Review Outcomes".

Professor Berman has collected an updated list of cases covering every category of reasonableness review: reversal of within-guideline sentence as unreasonable, affirmance of within-guideline sentence as reasonable, reversal of above-guideline sentence as unreasonable, affirmance of above-guideline sentence as unreasonable, reversal of below-guideline sentence as unreasonable, and affirmance of below-guideline sentence as reasonable.

If you have an interest in federal criminal law or sentencing, this is a great resource to keep bookmarked and follow.

Compilation of "Light-Hearted" Court Antics.

2006-06-14T09:11:00.000-05:00

In the past few months there have been a number of rather "light-hearted" moments in court proceedings, either in strange motions being filed or in somewhat humorous orders being issued. Inasmuch as I've been busy lately and do want to keep this blog "active," I'm going to simply post a compilation of some of the better ones I've seen. Let me know if you have more, and I'll update this specific post with them.

1. A Motion for Fist Fight.

Back in April, The Legal Reader posted about the "Motion for Fist Fight" filed in a Montana criminal case. An excerpt, in which it bears noting that "S.D." and "J.C." are the attorneys representing the State in the action and "K.K." and "B.B." are the defense attorneys:

COMES NOW counsel for Defendant, through his [counsel] and respectfully requests this Court to Order a fist fight between [S.D.] and [J.C.] on one sided [sic] and [K.K.] and [B.B.] on the other side.
. . .
[S.D] and [J.C.] have consistently maintained that it was perfectly right, legal and moral for the stronger [M.P.] to beat up [D.J.]. They have maintained that [D.J.] did not have to worry because [M.P.'s] drunk and stoned friends would jump in and protect [D.J.].
The defense team disagrees but would love to give [S.D.] and [J.C.] a chance to stand up for the principle they stand up for, ie. the brutal humiliation and beating up of weaker human beings is the most cherished principle in life. . . . For further insurances that [S.D.] and [J.C.] don't get beat up to [sic] bad, an group of defense attorney's drunk and stoned friends will be there to assure [S.D.'s] and [J.C.'s] safety.

The State filed a responsive pleading, also viewable at the link, in which the State asserted that the defendant "went far beyond what was necessary for self defense." The State also asserted that "[t]he latitude normally given to the exercise of free speech, especially that which, however ill conceived, is intended as humorous, should not extend to filed court pleadings in a case which has led to the death of one young man, serious and possibly permanent injury to others, and the specter of long imprisonment and community strife for others." Additionally, not wanting to be left looking "afraid" of the challenged fist-fight, the attorneys for the State asserted:

While counsel for the State are confident they could acquit themselves respectably if it were necessary to settle any part of this matter by means of a physical contest, ancient methods of trial by fire, water and the like no longer have any place in our system of justice.

2. A Game of Rock, Paper, Scissors.

While attorneys in Montana have been busy challenging each other to fist fights, down in Florida things are settled more amicably -- with a game of Rock, Paper, Scissors.

In the case of Avista Management, Inc. v. Wausau Underwriters Insurance Co., counsel for the parties have apparently been unable to reach agreements on a number of routine matters without enlisting the assistance of the federal court. The latest impasse apparently concerned the location of a deposition. Counsel for the Plaintiff brought a motion to designate the location of the deposition. The federal court denied the motion, but also "fashion[ed] a new form of alternative dispute resolution" -- a game of rock, paper, scissors. The court ordered:

. . . at 4:00 P.M. on Friday, June 30, 2006, counsel shall convene at a neutral site agreeable to both parties. If counsel cannot agree on a neutral site, they shall meet on the front steps of [the federal courthouse]. Each lawyer shall be entitled to be accompanied by one paralegal who shall act as an attendant and a witness. At that time and location, counsel shall engage in one (1) game of "rock, paper, scissors." The winner of this engagement shall be entitled to select the location for the . . . deposition.

3. A Motion to Wear Hat in Court.

Before leaving Florida, let's go back to April when a criminal defendant was due to be sentenced and filed a motion requesting permission to wear his cowboy hat in court because the defendant, Jean-Marc Brun, is a well-known hairstylist and his hat is a recongized and recognizable feature of his own style and fashion. Although the prosecutor had no objection, the court did not expressly grant the motion. Rather, the court issued an order counseling on the respect associated with removing hats. The court ultimately left it up to the defendant. The court noted, however, that "[i]f in doubt, a true gentleman will remove his hat indoors as soon as is practical. Leaving one's hat on when it is considered 'proper' to remove it is generally considered a sign of contempt and/or disrespect."

4. DaVinci Code Order's Code.

These unusual and lighter moments are not reserved to the United States. Back in April, Justice Peter Smith issued a judgment in the DaVinci Code case in England, which pitted author Dan Brown against authors of another work who claimed that Brown had breached copyright restrictions in writing the DaVinci Code. The judgment was crafted with its "own" code. You can read about it here.

5. Billy Madison as Legal Precedent.

As I posted about back in March, a Texas bankruptcy judge dismissed a motion due to "incomprehensibility." In doing so, the judge quoted the movie Billy Madison in his footnote, commenting:

Or, in the words of the competition judge to Adam Sandler's title character in the movie, "Billy Madison," after Billy Madison had responded to a question with an answer that sounded superficially reasonable but lacked any substance,

Mr. Madison, what you've just said is one of the most insanely idiotic things I've ever heard. At no point in your rambling, incoherent response was there anything that could even be considered a rational thought. Everyone in this room is now dumber for having listened to it. I award you no points, and may God have mercy on your soul.

Deciphering motions like the one presented here wastes valuable chamber staff time, and invites this sort of footnote.

6. An Invasion of Sea Sponges.

I also posted about the importance of proofreading as demonstrated by the "Sea Sponge" case. In that case, an attorney drafted a brief and his spell-check system inadvertently changed every reference to "sua sponte" to "sea sponge" and the attorney did not catch the error when proofreading. A couple of the good examples were:

"An appropriate instruction limiting the judge's criminal liability . . . must be given sea sponge explaining that certain acts or omissions by themselves are not sufficient to support a conviction."
"It is well settled that a trial court must instruct sea sponge on any defense, including a mistake of fact defense."

7. Motion to Transfer Denied.

Judge Samuel Kent, a federal district court judge in Texas, has a bit of a reputation for "colorful" language in his orders. Kent recently issued an order denying a motion to transfer a case from Galveston to Houston. An excerpt:

Defendant should be assured that it is not embarking on a three- week-long trip via covered wagons when it travels to Galveston. Rather, Defendant will be pleased to discover that the highway is paved and lighted all the way to Galveston, and thanks to the efforts of this Court’s predecessor, Judge Roy Bean, the trip should be free of rustlers, hooligans, or vicious varmints of unsavory kind. Moreover, the speed limit was recently increased to seventy miles per hour on most of the road leading to Galveston, so Defendant should be able to hurtle to justice at lightning speed. To assuage Defendant’s worries about the inconvenience of the drive, the Court notes that Houston’s Hobby Airport is located about equal drivetime from downtown Houston and the Galveston courthouse. Defendant will likely find it an easy, traffic-free ride to Galveston as compared to a congested, construction-riddled drive to downtown Houston. The Court notes that any inconvenience suffered in having to drive to Galveston may likely be offset by the peacefulness of the ride and the scenic beauty of the sunny isle.

As to Defendant’s argument that Houston might also be a more convenient forum for Plaintiff, the Court notes that Plaintiff picked Galveston as her forum of choice even though she resides in San Antonio. Defendant argues that flight travel is available between Houston and San Antonio but is not available between Galveston and San Antonio, again because of the absence of a commercial airport. Alas, this Court’s kingdom for a commercial airport! (fn) The Court is unpersuaded by this argument because it is not this Court’s concern how Plaintiff gets here, whether it be by plane, train, automobile, horseback, foot, or on the back of a huge Texas jackrabbit, as long as Plaintiff is here at the proper date and time. Thus, the Court declines to disturb the forum chosen by the Plaintiff and introduce the likelihood of delay inherent in any transfer simply to avoid the insignificant inconvenience that Defendant may suffer by litigating this matter in Galveston rather than Houston.

fn. Defendant will again be pleased to know that regular limousine service is available from Hobby Airport, even to the steps of this humble courthouse, which has got lights, indoor plummin’, ‘lectric doors, and all sorts of new stuff, almost like them big courthouses back East.”

Update: Legislation on Military Funeral Protests, Fred Phelps, and the Patriot Guard Riders.

2006-06-02T11:56:00.000-05:00

As I noted recently, among the most often viewed and searched for articles here at Kierkegaard Lives are the posts about Fred Phelps and his "church" protesting at military funerals and the Patriot Guard's "counter-protest" and attendance at these funerals.

Prior Kierkegaard Lives Posts on this subject:
Update: Military Funeral Protests, Fred Phelps, Patriot Guard Riders (May 10, 2006)
Patriot Guard Bikers vs. Fred Phelps (February 22, 2006)

In my last post on the subject, I noted that

According to Jurist, the U.S. House of Representatives [had] passed a bill that is titled "The Respect for America's Fallen Heroes Act." The bill seeks to block unapproved protests at Arlington National Cemetery and other federal cemeteries and creates a 500-foot no-protestor zone around military funerals. Apparently, similar legislation has been passed or proposed in states such as South Dakota and Oklahoma.

On May 25, 2006, the Senate passed a similar bill. And on May 30, President Bush also signed the Act into law.

According to CNN.com:

Demonstrators would be barred from disrupting military funerals at national cemeteries under legislation approved by Congress and sent to the White House.

The measure, passed by voice vote in the House Wednesday hours after the Senate passed an amended version, specifically targets a Kansas church group that has staged protests at military funerals around the country, claiming that the deaths were a sign of God's anger at U.S. tolerance of homosexuals.

Additionally,

In an interview when the House bill passed, Phelps said Congress was "blatantly violating the First Amendment" rights to free speech in passing the bill. He said that if the bill becomes law he will continue to demonstrate but would abide by the restrictions.

Sen. Pat Roberts, a Republican from Kansas, said the loved ones of those who die have already sacrificed for the nation and "we must allow them the right to mourn without being thrust into a political circus."

In response to the demonstrations, the Patriot Guard Riders, a motorcycle group including many veterans, has begun appearing at military funerals to pay respects to the fallen service member and protect the family from disruptions.

Legal Questions Raised by Slaying of NY Appellate Clerk.

2006-05-23T09:31:00.000-05:00

Peter Porco, at age 52, was the principal clerk to Presiding Justice Anthony V. Cardona of the Appellate Division, 3rd Department, in New York. Porco was a career appellate court clerk and devoted student of the law. During the early morning hours of November 15, 2004, Porco was brutally murdered with an ax. His wife was by his side, was similarly attacked, but miraculously survived. Their 22-year-old son is now charged with Porco's murder and with Porco's wife's attempted murder.

The case presents a myriad of complex legal and factual issues that Porco's co-workers say he would have found fascinating. There is evidence that somebody entered the home after cutting telephone wires that operated the burglar alarm. But there is also evidence that the alarm had been deactivated by someone who knew the access code before the alarm's control box was smashed. A garage window screen was cut, but a key the family had hidden was found in the front door lock. The family dog was locked in the basement.

Police who found the crime scene found Porco's wife clinging to life. Certain that she was going to die, they tried to question her to find out what had happened. They asked her if she had been attacked by a family member, and she apparently nodded "yes." When asked if her son was responsible, she apparently again nodded "yes."

Police interrogated the son for more than 6 hours, without counsel, but got nothing. He continuously insisted he was asleep at his college when the attacks occurred. Police were unable to find any physical evidence to conclusively establish that he had been anywhere near the home at the time of the attacks.

The investigation ultimately revealed that the son was heavily in debt, had argued with his father about loan applications, and had allegedly staged burglaries in his home and allegedly burglarized a veterinarian's clinic where he worked, although no charges had ever been filed.

The son was ultimately charged based on the theory that he attacked his parents to get their money. The son apparently stood to inherit at least enough to get himself out of debt.

The case is scheduled to go to trial in June 2006.

Among the legal issues to be resolved include whether the son's right to counsel was violated because a family friend had introduced himself to police and advised them he was the son's attorney prior to the 6 hours of uncounseled interrogation. Also at issue is whether Porco's wife's "nods" to police are admissible as "excited utterances" or "dying declarations." Also at issue will be the admissibility of evidence about the alleged prior burglary stagings. Finally, there will be issues related to two of the detectives who investigated the case having died in recent months.

Is Gay Marriage Ban a No-Win for Bush?

2006-05-23T09:16:00.000-05:00

In a Philadelphia Inquirer commentary, political analyst Dick Polman opines that the White House's relatively mute push to support the proposed Constitutional amendment banning gay marriage is a product of "[t]hree words: competing political interests." Specifically, the issue seems to be that not everyone in the Republican party is entirely fixated on banning gay marriage, and some Republicans actually feel other issues are also pretty important.

For example, "[p]arty moderates are concerned about the fate of House incumbents from socially tolerant districts . . . [and] [t]he fear is that many party voters might stay home, or swing to the Democrats, if they feel their leaders are more fixated on gay marriage than on issues they deem more important, such as Iraq and the price of gas." With Bush's approval rating among moderate Republicans and independents plummeting to record lows, it seems that "[a] full-throated crusade against gay marriage would not bring [approval] northward."

"'There is a fear, among some in the [Republican] party, that the Republicans are being identified too much as a theological party.'" "[H]alf of today's Republicans are 'theocrats' who want government to 'promote traditional values by protecting traditional marriage,' as opposed to wanting less government intrusion into personal lives."

The dilemma for Bush and other Republicans: push too hard on the gay marriage ban and the "theocratic" base may respond well, but that could be damaging with the politically moderate or independent voters.

This commentary also recognizes something I wish more political pundits would pick up on and discuss: It may well be true that a majority of people "oppose" the concept of gay marriage. But that is not the same thing as saying that a majority of people favor amending the Constitution to actually ban gay marriage. The two concepts are not parallel. Further, a significant portion of those who will answer a poll question by indicating that they "oppose" gay marriage really don't feel so strongly about it that they would like to see actively outlawing it made a priority.

The result of all this is that Bush is once again finding himself in a no-win situation. If he actively supports the proposed amendment, he risks alienating moderates and independents and risks spending money in a potentially losing causing. If he fails to actively support the proposed amendment, he risks alienating religious conservatives who were largely responsible for his reelection.

Hergert Impeachment Trial: Day Five.

2006-05-16T09:38:00.000-05:00

Following are links to Monday, May 15, 2006, coverage of the impeachment trial of University of Nebraska Regent David Hergert before the Nebraska Supreme Court:

Day Five Coverage:
Omaha World Herald: Regent's Fate Now Rests With High Court.

The five-day impeachment trial ended on Monday. Prosecutor David Domina argued that Hergert "snubbed his nose at [the] law." Hergert's attorneys "respectfully ask[ed the court] to decline [the] invitation to overturn an election." No word on how long it will be before the court will issue a ruling.

Lincoln Journal Star: Hergert's Fate in Court's Hands.

Hergert's impeachment trial wrapped up on Monday. Prosecutor David Domina argued that Hergert failed to compete fairly and honorably and snubbed his nose at the law. Hergert's attorneys argued that the articles of impeachment were not proven and that the case was built on innuendo. According to Hergert's attorneys, "technical violations" fail to prove that Hergert acted intentionally.

Nebraska State Paper: Supreme Court Hears Final Arguments on Removing NU Regent From Office.

The Hergert impeachment trial wrapped up on Monday. Prosecutor David Domina argued that the evidence showed Hergert consistently and deliberately violated the law. The defense argued that the violations were not intentional and a finding of guilt would "rewrite the constitution."

WOWT TV.com: Impeachment Trial Concludes.

Hergert's fate now rests with the Supreme Court. Prosecutor David Domina argued that Hergert repeatedly lied and broke campaign finance laws to deprive his challenger from accessing public money. Hergert's attorneys argued that the Legislature had "used 'special effects' in order to 'make innocent conduct appear sinister.'"

Kierkegaard Lives Daily Impeachment Trial Coverage:
Day One Coverage.
Day Two Coverage.
Day Three Coverage.
Day Four Coverage.
Day Five Coverage.

Other Links:
Kierkegaard Lives, May 4, 2006 (discussing arguments on Hergert's Motion to Dismiss).
Kierkegaard Lives, April 28, 2006 (discussing pending impeachment trial).

Nebraska Supreme Court Case Site (with .pdf copies of filings in the case)

Friday Fantastic Four #9

2006-05-12T10:08:00.000-05:00

After an inexcusable absence of almost a month and a half, here is the return of the Friday Fantastic Four, this the 9th installment:

1. Featured Law-Oriented Blog.

This week's featured law-oriented blog is Split Circuits, a blog "dedicated to tracking developments concerning splits among the federal circuit courts.

The blog is maintained by A. Benjamin Spencer, an Assistant Professor of Law at The University of Richmond School of Law. A Harvard grad, Spencer teaches Civil Procedure, Administrative Law, Complex Litigation, and a seminar in Advanced Issues in Civil Procedure. He has another blog, Federal Civil Practice Bulletin.

Split Circuits is a potentially invaluable resource for anyone who practices in the federal courts and needs to stay abreast of how the various circuits may differ in application of federal law, as well as a great resource for those of you out there who teach and are in need of good scenarios for class problems. Go check the site out; it's clear that Professor Spencer has devoted a great deal of time and effort to this project.

2. Featured Law Commentary.

This week's featured legal commentary comes courtesy of Michael J. Kelly, Professor of Law at Creighton School of Law. Kelly's short piece over at Jurist Hotline is titled, "Now is the time to dump the CIA and transform the intelligence community."

Kelly argues that Porter Goss's resignation as CIA director offers President Bush "an opportunity to make real and lasting changes to a broken intelligence system." Kelly argues that the CIA "continues to sink ever more deeply to the abyss of public skepticism as more abuses come to light involving torture, detention, rendition to third countries, and the use of secret 'black sites' where suspects remain hidden from public scrutiny indefinitely." Kelly argues that Bush should utilize this opportunity to "really shake up the intelligence community in such a way that moves us further from the model of fighting the Cold War against the non-existent KGB and toward the model of engaging an enemy that is more unpredictable, unascertainable, and stubbornly impenetrable."

3. Featured Non-Law-Oriented Blog.

This week's featured non-law-oriented blog is a blog I only recently discovered because its author stopped by and left a comment here on my post about Stephen Colbert at the White House Correspondents' Dinner. The blog is Dark and Moody Chicks.

Don't let the name scare you off. This is a really funny daily comic blog. Today's strip even pokes fun at those of us who are *still* talking about Stephen Colbert. Interspersed with the daily comics are insights into the daily life of the author.

For example, today Michelle got pulled over making an improper left turn -- no ticket, though.

"The Chicks" have tackled a variety of topics recently, including some that are (ahem) a bit "adult" in nature, the different views of liberals and conservatives, and David Blaine.

Speaking of David Blaine, and Stephen Colbert, after Blaine failed to break the "how long can he hold his breath inside a giant fish bowl in front of the whole world" record, Colbert noted that it'd be impossible for anyone to hold their breath for 9 minutes. Colbert said something like, "to do that would take a magician or something." I know, random thought, off-topic, but it does tie "the chicks", David Blaine, and Colbert all together rather nicely, don't you think? Anyway, go peruse some of the past strips of the chicks. There's some really good stuff there.

4. Featured Just-For-Fun Site.

Finally, since Mother's Day is this weekend, this week's featured just-for-fun site is a site about Mother's Day. If you have kids, go check out Kids Domain's Mother's Day page. You'll find great craft ideas for kids to make mom a nice card or other gift, and other fun Mother's Day activities for kids and moms.

Previous Friday Fantastic Four Posts:
March 24, 2006 (FFF #8)
March 3, 2006 (FFF #7)
February 24, 2006 (FFF #6)
February 10, 2006 (FFF #5)
January 27, 2006 (FFF #4)
January 20, 2006 (FFF #3)
January 6, 2006 (FFF #2)
December 30, 2005 (FFF #1)

Hergert Impeachment Trial: Day Four.

2006-05-11T14:05:00.000-05:00

Following are links to Thursday, May 11, 2006, coverage of the impeachment trial of University of Nebraska Regent David Hergert before the Nebraska Supreme Court:

Day Four Coverage:
Omaha World Herald: Hergert Testifies at His Impeachment Trial.

Hergert took the stand today. Hergert testified that he failed to file paperwork for a variety of reasons, first because he "misplaced it;" then because he thought he had already mailed it; then because he found it misfiled with other paperwork.

Lincoln Journal Star: Hergert Testifies at His Impeachment Trial.

Hergert took the stand today. Hergert testified that he failed to file paperwork for a variety of reasons, first because he "misplaced it;" then because he thought he had already mailed it; then because he found it misfiled with other paperwork.

WOWT TV: Hergert Testifies.

Hergert took the stand today. Hergert testified that he failed to file paperwork for a variety of reasons, first because he "misplaced it;" then because he thought he had already mailed it; then because he found it misfiled with other paperwork.

NSA Spying Discussions.

2006-05-11T14:00:00.000-05:00

With the story broken by USA Today about the NSA's surveillance of domestic phone calls, there has been a resurgence of discussion across the blog-o-sphere about wiretapping, surveillance, and NSA spying. As such, there's a flurry of new links in the Wire-Tapping Link Repository.

Hergert Impeachment Trial: Day Three

2006-05-10T13:47:00.000-05:00

Following are links to Wednesday, May 10, 2006, coverage of the impeachment trial of University of Nebraska Regent David Hergert before the Nebraska Supreme Court:

Day Three Coverage:
Omaha World Herald: Witness Says Hergert Changed Story.

A Nebraska State Patrol investigator testified that he interviewed Hergert in connection with an Attorney General investigation of Hergert's campaign finance violations and that "several discrepancies" existed between what Hergert said then and what Hergert said in a more recent deposition. The alleged inconsistencies concern who was responsible within Hergert's campaign for reporting his campaign expenditures and whether Hergert received a warning letter from the Accountability and Disclosure Committee.

Omaha World Herald: NU Regent Didn't Report Payments By His Campaign.

Heregert paid a fundraiser and political consultant to work on his campaign, but never reported the expenditure on disclosure statements.

Lincoln Journal Star: Witness: Hergert was Inconsistent.

A Nebraska State Patrol investigator testified that he interviewed Hergert in connection with an Attorney General investigation of Hergert's campaign finance violations and that "several discrepancies" existed between what Hergert said then and what Hergert said in a more recent deposition. The alleged inconsistencies concern who was responsible within Hergert's campaign for reporting his campaign expenditures and whether Hergert received a warning letter from the Accountability and Disclosure Committee.

Lincoln Journal Star: Regent's Role in Campaign Recounted.

Testimony Wednesday, May 10, 2006, indicated that Hergert testified in a deposition that he was the one that guided the campaign and made the decisions; this revelation could bolster the prosecution's case that Hergert intentionally manipulated the system to keep his opponent from receiving public money in the race.

WOWT TV: Investigation Detailed.

A Nebraska State Patrol investigator testified that he interviewed Hergert in connection with an Attorney General investigation of Hergert's campaign finance violations and that "several discrepancies" existed between what Hergert said then and what Hergert said in a more recent deposition. The alleged inconsistencies concern who was responsible within Hergert's campaign for reporting his campaign expenditures and whether Hergert received a warning letter from the Accountability and Disclosure Committee.

Update: Military Funeral Protests, Fred Phelps, Patriot Guard Riders.

2006-05-10T13:20:00.000-05:00

One of the posts here at Kierkegaard Lives that has gotten the most viewership is a post from back in February about The Patriot Guard Bikers, a group of motorcyclists that ride around counter-protesting the disgusting protests that are frequently held by Fred Phelps and his "church" at military funerals. Well, here's an update to that story.

According to Jurist, the U.S. House of Representatives has passed a bill that is titled "The Respect for America's Fallen Heroes Act." The bill seeks to block unapproved protests at Arlington National Cemetery and other federal cemeteries and creates a 500-foot no-protestor zone around military funerals. Apparently, similar legislation has been passed or proposed in states such as South Dakota and Oklahoma.

More information:
Associated Press.

**UPDATE May 12, 2006:
Reader_I_Am has posted some thoughts on this development over at >Done With Mirrors. Some good thoughts.

Hergert Impeachment Trial: Day Two.

2006-05-09T11:22:00.000-05:00

Following are links to Tuesday, May 9, 2006, coverage of the impeachment trial of University of Nebraska Regent David Hergert before the Nebraska Supreme Court:

Day Two Coverage:
Omaha World Herald: Hergert Didn't Steal Election, According to His Lawyer.

During Day 1, Hergert's attorney argued that Hergert may have failed to comply with technical requirements concerning his campaign, but that he did not do so with any illegal or fraudulent intent. The special prosecutor argued that Hergert intentionally delayed reporting to avoid getting caught.

Omaha World Herald: Despite Warning, Papers Filed Late.

Hergert received an uncommon warning from the Accountability and Disclosure Committee about filing deadlines, but failed to get papers filed in time anyway. Additionally, he missed similar deadlines and received a warning after the primary election, but still made the same "error" in the general election.

Omaha World Herald: Hergert Filing Delay was Deliberate, Former Regent Says.

Former Regent who was defeated by Hergert testified about the impact Hergert's failure to properly disclose campaign spending had on the election, including its impact on "matching" funds.

Lincoln Journal Star: Hergert Trial Continues.

Day two of the trial proceeded with testimony from the Nebraska Accountability and Disclosure Commission about the rules that must be complied with by candidates for political office.

Lincoln Journal Star: Hergert Election Foe Testifies.

Former Regent who was defeated by Hergert testified about the impact Hergert's failure to properly disclose campaign spending had on the election, including its impact on "matching" funds.

Nebraska State Paper: Prosecution Says Hergert Intentionally Violated Campaign Finance Law.

Day two of the trial began with testimony from the Nebraska Accountability and Disclosure Commission about the rules that must be complied with by candidates for political office.

WOWT TV: Hergert Impeachment: Day Two.

Former Regent who was defeated by Hergert testified about the impact Hergert's failure to properly disclose campaign spending had on the election, including its impact on "matching" funds.

Update: Stephen Colbert at Correspondents' Dinner.

2006-05-09T11:19:00.000-05:00

I just posted an update in the middle of my earlier post about Colbert's presentation at the White House Correspondents' Dinner. I have heard several different news items lately about CSpan requesting that video host sites, such as youtube, ifilm, etc., remove the clips of Colbert because they are copyrighted material and CSpan did not give permission for their posting. CSpan has, however, apparently authorized google-video to host the clip.

So I added a link to the google-video video of the clip, but I'm leaving the youtube links up for now.

**UPDATE (May 10):
Youtube has removed the videos. Details courtesy of Yahoo! News.

Hergert Impeachment Trial: Day One.

2006-05-08T15:10:00.000-05:00

I have posted previously about the impeachment trial of David Hergert. The impeachment trial got underway today, Monday, May 8, 2006, before the Nebraska Supreme Court. I plan to post some links to coverage of each day of the trial, as that coverage becomes available.

Day One Coverage:
Omaha World Herald: Hergert Case Open to Public and TV.

This article notes that the case is being covered, gavel to gavel, by Nebraska Educational Television. Additionally, the case is open to the public, on a limited first come first seated basis. The case pits two reputed trial attorneys from Nebraska, and should present a good legal battle to observe.

Omaha World Herald: Hergert Case Underway.

The case got underway Monday morning with brief testimony from Nebraska Governor Dave Heineman.

Lincoln Journal Star: Hergert Case Underway.

The case got underway Monday morning with brief testimony from Nebraska Governor Dave Heineman.

Washington Post: University of Nebraska Impeachment Trial Begins.

Impeachment case got underway Monday morning with opening statements by attorneys and testimony from Nebraska Governor Dave Heineman.

Guardian Unlimited: University of Nebraska Impeachment Trial Begins.

Impeachment case got underway Monday morning with opening statements by attorneys and testimony from Nebraska Governor Dave Heineman.

Seattle Post Intelligencer: University of Nebraska Impeachment Trial Begins.

Impeachment case got underway Monday morning with opening statements by attorneys and testimony from Nebraska Governor Dave Heineman.

MSNBC.com: Campaign Finance Fiasco.

Overview of the case.

Search Incident to Arrest -- Search of a Bicycle, That Is.

2006-05-08T09:41:00.000-05:00

Over at Decision of the Day, there was a short write up on Thursday last week about a pretty interesting case decided by the Fourth Circuit last week. The case concerns application of the "search incident to arrest" exception to the Fourth Amendment, but applied to searching a bicycle.

The exception is often used to allow searches of automobiles or homes when suspects are lawfully arrested. In this case, however, officers received a tip about a suspect selling drugs from a bicycle. When they arrested him, they found no drugs on his person. After the suspect was arrested, officers searched and found crack inside the handlebars of his bicycle.

The trial court granted a motion to suppress. The trial court concluded that "opening" the handlebars of the bicycle was comparable to opening the trunk of a car, which exceeds the permissible scope of a search incident to arrest. On appeal, however, the Fourth Circuit reversed. The Fourth Circuit held that the permissible scope of a search incident to arrest is allowable for areas within the immediate control of the suspect, where the suspect might be hiding a weapon that could be used against law enforcement officers. The Fourth Circuit held that the handlebars were within that scope, and that the search was therefore lawful.

**UPDATE:
OrinKerr.com also picked up on this. And there's a little bit of discussion going on in the comments, too.

Blawg Review #56.

2006-05-08T09:37:00.000-05:00

Blawg Review #56 is now up at Point of Law. This edition of Blawg Review has some of the most thorough coverage of last week's law-blogging that I've seen in quite a while. Go check out the myriad of topics and posts highlighted by the fine folks over at Point of Law, and then start following the blog's regular posts. You won't be disappointed.

Update: Nebraska Impeachment of Regent Hergert.

2006-05-04T10:29:00.000-05:00

Last week I posted about the Nebraska impeachment trial of C. David Hergert, here. The trial is scheduled to begin next week, but yesterday the Nebraska Supreme Court heard arguments on Hergert's motion to dismiss the case.

The Omaha World Herald reports on the arguments:

Every elected official in Nebraska could be subject to a "political witch hunt" if the Legislature's impeachment of Regent David Hergert for violating election law is allowed to stand, a lawyer argued Wednesday to the State Supreme Court. "The impeachment is an attempt by the Legislature to rewrite the Nebraska Constitution and reverse more than 100 years of precedent," said Christopher Ferdico, a lawyer for Hergert. "The underlying offenses do not rise to impeachable offenses even if they are true." Ferdico said the Nebraska Constitution allows officials to be impeached only for offenses committed while in office.

But prosecutor David Domina said Hergert must be held accountable for the campaign finance violations that enabled him to get into office. Domina likened the case to shooting someone. Pulling the trigger is the first step, but the crime doesn't occur until the bullet hits the victim. "The acts committed before he was in office enabled him to get into office," he said. "The fraud doesn't become complete until his incumbency."

The high court did not immediately rule on the request from Ferdico to throw out the case against Hergert. The impeachment trial is scheduled to begin Monday and could last up to 15 days.

I think it unlikely that the Supreme Court is going to dismiss the case, but it's less clear whether the Court will find that Hergert should be removed from office. Stay tuned for updates next week when the trial gets underway.

Update: Sedition in Montana.

2006-05-04T10:13:00.000-05:00

Back in December I had a couple of posts about a group of law students in Montana who were seeking clemency for people convicted under a World War I law criminalizing public speech criticizing the government and war efforts. Those posts can be found here and here. In the second post, which was a brief update, I noted that Colin over at Infamy of Praise had also picked up on the story, and I noted that Colin, while arguing that clemency was appropriate because such speech should not have been criminalized, also recognized the difference between criminalizing speech and noting that speech might be unpatriotic. To say that the speech should be "legally allowed" is not the same as defending the speech or somehow implicitly suggesting that the speech is not rightly characterized as unpatriotic.

Colin has an UPDATE on what's going on in Montana on his blog today. It looks like the current governor is going to go ahead and grant the clemency requests. Go read the excerpts from NY Times article that prompted Colin's latest update. And, once again, I don't disagree a bit with Colin's commentary:

Notwithstanding, I think that those commentators who equate the official repression of unpatriotic speech with a more generalized societal disfavor of unpatriotic speech are misguided. The former is dangerous and unconstitutional; the latter is an entirely appropriate promotion of widely-held group norms. Protecting the constitutional right of each American to virulently criticize our nation's government during wartime does not require that we as a society actively encourage or reward such criticism.

Did Texas Execute an Innocent Man?

2006-05-03T09:53:00.000-05:00

A new report was recently submitted to the Texas Forensic Science Commission by The Innocence Project. In the report, the Project "formally submitted two arson cases to [the Commission], along with a request that the panel order a review of arson convictions across the state" based on "expert arson analysis" which the Project asserts "shows an innocent man was executed -- and that other people in Texas may have been wrongly convicted of arson based on erroneous forensic analysis."

This is allegedly "the first time in the nation that scientific evidence showing an innocent person was executed has been submitted to a government entity that is legally obligated to investigate cases, reach conclusions, and direct system-wide reviews to the determine the extent of the problem."

According to the Project's press release:

The two cases the Innocence Project submitted today are the convictions of Ernest Willis and Cameron Todd Willingham. Willis was convicted of arson murder and sentenced to death in 1987, and he served 17 years in prison before he was exonerated. Willingham was convicted of arson murder in 1992 and was executed in February 2004. Among the documents submitted to the commission today is a 48-page report from an independent five-member panel of some of the nation's leading arson investigators, who reviewed more than 1,000 pages of evidence, testimony, and official documents in the two cases.

In the report, the arson experts - with a combined 138 years of experience in the field - say that neither of the fires which Willingham and Willis were convicted of setting were arson. The expert report notes that the evidence and forensic analysis in the Willingham and Willis cases "were the same," and that "each and every one" of the forensic interpretations that state experts made in both men's trials have been proven scientifically invalid. "While any case of wrongful conviction, acknowledged or not, is worthy of review, the disparity of the outcomes in these two cases warrants a closer inspection," the report says.

Links:
Innocence Project Home Page.
ACS Blog coverage.
How Appealing coverage.
Legal Reader coverage.
TalkLeft coverage. (And see the comments for good discussion from a relative of one of the experts involved in the case.)

AP coverage.
Chicago Tribune related article.

Stephen Colbert at the White House Correspondents' Dinner.

2006-05-02T10:15:00.000-05:00

Just in case anyone might have missed it, I think the highlight of the White House Correspondents' Dinner over the weekend was Stephen Colbert's sharp presentation at the very end of the Dinner. Not surprisingly, the more light-hearted "cutesy" exchanges between Bush and the Bush-impersonator who appears on Jay Leno's show regularly have gotten most of the coverage from the big news outlets. Although I enjoyed that and thought it just further underscores the credibility problems that abound with the current administration, I think Colbert's "roast" was by far the best part of the night.

Colbert, in his persona from the Colbert Report, stood up for Bush on such matters as ignoring silly approval polls that really just show what the public thinks "in reality," the implementation of an effective government in Iraq (because the government that governs best is the one that governs least), and disregard for factual accuracy and instead letting "history decide what did or did not happen." Colbert got shots in on a number of others, including Fox News, Tony Snow, and John McCain. One of the funniest moments was an exchange between Colbert and Justice Scalia, which Colbert described as merely exchanging pleasantries with his "paison."

Following is Colbert's entire presentation:

**UPDATE (May 9):
There is some "rumbling" around the internet that CSpan has asked video host sites such as youtube to remove the videos of Colbert. I don't know whether they will, but even if they do, the entire video can be viewed on a CSpan approved host at google-video:
Google-Video Video of Colbert
**UPDATE (May 10):
Youtube has complied and removed the videos. You can read about it HERE

**UPDATE:
DailyKos has the transcript for the entire presentation, if you'd prefer reading it to watching it, or if you'd prefer to follow along.

Blawg Review #55: A Road Trip!

2006-05-01T13:53:00.000-05:00

Ben Cowgill is hosting Blawg Review #55 over at his SoloBlawg. The theme for today is a day-long Road Trip across the Blawg-o-sphere. Cowgill has been posting regular updates all day, "road trip" fashion, about great legal blawg posts from last week. So far he's covered Law Day, the "Day Without Immigrants" protests, the ABA TechShow, and the "Bloggership" conference at Harvard Law School last week. There's more to come as the day progresses, so go check it out.

Hooray! It's Another Husband-Wife Sex Slave Contract!

2006-05-01T13:37:00.000-05:00

Courtesy of The Smoking Gun comes yet another fascinating story of young love, as a Minnesota businessman allegedly forced his wife into a six-page "Master" and "Slave" contract setting out explicit rules for the parties' relationship and punishment if the wife violated its terms. This contract includes provisions such as:

"Slave agrees at all times to make her body readily available to Master for use. Slave agrees to wear any and all clothing Master chooses."

"It is the duty of slave to please.
Personal Duties: Physical/emotional needs of Master, amusement, sexual toy/plaything, physical comfort, obedience, honesty, loyalty, waiting on Master as desired and needed."

"Slave shall address Master as Master Jon at all times ..."

"Slave is to achieve orgasm ONLY by permission of Master."

It's interesting to note that "Master Jon" is really named "Kevin."

Anyway, this is another contract, although not as graphic, like the one I blogged about a couple weeks ago in Iowa. Maybe it's a midwest thing?

Nebraska Legislature's Impeachment of Regent David Hergert.

2006-04-28T13:34:00.000-05:00

More interesting legal news from the Cornhusker state (Nebraska). The Nebraska Legislature recently voted to impeach a member of the University of Nebraska Board of Regents, C. David Hergert.

According to the Notice of Impeachment, Hergert's impeachment is based on various election fraud complaints and Hergert's representations upon taking office that he had been "dutifully" and "properly" elected when, apparently, he was actually (allegedly) elected as a result of election fraud. Trial has been scheduled before the Nebraska Supreme Court on May 8, 2006.

The special prosecutor appointed to represent the Legislature in the impeachment trial, David Domina has called the case "unprecedented." In a brief filed by Domina, Domina has indicated that Regent could become the first state or federal official ever ousted for election fraud. According to Domina:

The court's opinion could become focal in yet-to-unfold international settings where the integrity of elections, and America's role in another nation's political process, is at stake.

Hergert's attorneys, Christopher Ferdico and Sean Brennan, have attempted to limit the Nebraska Supreme Court from allowing the Legislature to subpoena witnesses and conduct discovery for the trial. They have argued that the Legislature was required to conduct discovery prior to issuing the notice of impeachment and that the Nebraska Constitution gives the Supreme Court authority to convene for trial only.

The charges upon which Hergert's impeachment was issued stem from alleged election law violations during a 2004 campaign and subsequent oath of office. Hergert earlier settled with the Accountability and Disclosure Commission, acknowledged accepting an illegal campaign loan and failing to report a contribution on time. In that settlement, Hergert agreed to pay more than $33,000 in fines in exchange for the Commission not seeking criminal charges.

Making the case even more interesting is the fact that Domina has attempted to subpoena Nebraska's current sitting Governor, Dave Heineman as a potential witness. Accoring to the Omaha World Herald this is the first time a sitting governor in Nebraska has been subpoenaed to testify "since 1993, when then-Gov. Ben Nelson was subpoenaed in a case over the proposed low-level radioactive waste diposal site in Boyd County."

If you're looking for some light reading, check out the Nebraska Supreme Court's website containing .pdf files of all the legal documents in the Hergert case: Nebraska Legislature v. C. David Hergert.

Update: Symposium on Judicial Selection and Independence.

2006-04-24T13:47:00.000-05:00

I posted a while back about a Symposium to be held at Fordham Law School in New York City on the subject of Judicial Selection and Independence. That Symposium was held a couple weeks ago and, from all reports, was a huge success.

If you are interested in the subject, you can view videos of the various panels and their presentations:

Panel #1.
Panel #2.
Panel #3.
Panel #4.

Omaha's New School Districts -- Segregation Returns?

2006-04-24T10:23:00.000-05:00

On Sunday, the Kansas City Star had an article about recent legislation passed by the Unicameral in Nebraska concerning the Omaha Public School district. As the article notes, "legal challenges are expected." Of course, legal challenges were coming no matter what the state legislature did on this mess.

For the "history" of why this all happened, check out the Omaha World Herald's feature with a ton of articles about the "One City, One School District" controversy. Basically, this mess started when the Omaha Public Schools District (OPS) "announced" last fall, without any prior warning or discussion with anyone (including legislatively required public hearings), that it was going to "take over" portions of the suburban school districts that are within Omaha City Limits, including Millard Public Schools (MPS) and Ralston Public Schools (RPS).

The controversy became extremely heated, as a number of people have moved out of OPS and into the other districts because they perceived the suburban districts to do a better job of educating their children. Although the schools use different testing systems, the suburban schools generally score better on standardized tests than the OPS schools do. This is not entirely because of "better" teaching, but also partially a product of socio-economic makeup, etc. Nonetheless, many people made a conscious decision to enroll their children in these suburban districts specifically to get out of the OPS district.

OPS cited an ancient state statute that, according to OPS, required "one city, one school district" in Omaha. Legal representatives of MPS and RPS disputed that the statute actually authorized or required OPS to take over the schools in question. After a hugely divisive several months, during which people being effected by OPS's decision and the manner in which OPS made the takeover bid engaged in heated public debates, a number of issues were brought to light. Among the issues were the perceived inequity in funding, including state tax funding, for the OPS district and the suburban districts; although OPS receives more state funding per pupil than the other districts, OPS has a higher percentage of "high needs" students.

Eventually, the Legislature stepped into the debate. Several proposals were on the table. One of the proposals called for a "learning community" that would combine all school districts in Douglas and Sarpy Counties (which is where Omaha is) into a super-district for purposes of funding and joint efforts at integration. That proposal would also allow students to enroll in any district within the "community" and would provide funded transportation. Passage of that bill was questionable, until a last second effort from one of Nebraska's most controversial state Senators, Ernie Chambers.

Chambers added an amendment at the last minute that called for splitting OPS into three smaller districts. The district boundaries are drawn in a fashion that results in one largely black district, one largely white district, and one largely hispanic district. Although relatively similar "segregation" exists within the schools now, the district boundaries themselves are not currently segregative. Under this new law, they will be.

This has obviously garnered a fair amount of national attention, including mentions on CNN.com and Dateline. The City is more divided now than ever. And, of course, now OPS is inviting the other districts to sit down and "talk" about ways to resolve the issue. It's too bad that approach couldn't have been taken way back when OPS began this mess, and perhaps something more amicable could have been done in the first place.

I'm sure there's more to come on this.

Kierkegaard Returns -- Blawg Review #53.

2006-04-17T12:56:00.000-05:00

After a hiatus of a week or so to tend to things going on in "the real world," I am happy to be back. Hopefully I'll be able to keep on top of posting now that life has, shall we say, slowed back down to a more normal blur.

Since I missed all of last week, perhaps one of the best ways to catch up on what happened is to check out Blawg Review #53 being hosted over at "MauledAgain" a tax blawg. The theme is, obviously, "taxes," but the posts cover a wide variety of legal topics that were all over the blawg-o-sphere last week. Go check it out, as I will, and get all caught up.

Brief Hiatus.

2006-04-04T07:30:00.000-05:00

I will likely be blogging very lightly for the next week or so. I am swamped with real life obligations this week. Before I go on "hiatus," however, check out these great things:

Blawg Review #51:
Blawg Review #51 is up over at Declarations and Exclusions. Go check out the links to some of the best and most entertaining blawg posts of the previous week. AND, you might even learn a little bit about Apollo, while you're at it.

Valerie Plame Resource:
Over at TalkLeft they've posted 400 posts on the Valeria Plame investigation. The posts range from July 29, 2003, to Monday, April 3. If that isn't the most complete Plame compilation out there, I don't know what is.

South Carolina Approving Death Penalty for Pedophiles.

2006-03-31T10:05:00.000-06:00

According to the AP, the South Carolina Senate has approved a bill that makes repeat child rapists eligible for the death penalty. According to the report, Republican Senator Larry Martin said, "What we've got to do today is vote our conviction." The proposal allows prosecutors to seek the death penalty for sex offenders who are twice convicted of sexually assaulting a child younger than 11.

Links:
ABC News Report March 29, 2006.
Wilmington Star News Online March 28, 2006.
Text of Bill

Husband on Trial for Domestic Assault and Kidnapping of Wife.

2006-03-30T15:04:00.000-06:00

A Council Bluffs, Iowa, man is currently on trial in a case that has gained international attention. The man, Travis Frey, is accused of tying up his wife and sexually assaulting her. He is facing first degree kidnapping charges and faces life in prison if convicted.

The case gained notoriety primarily because of evidence about a bizarre sex contract Frey allegedly gave to his wife. The full contents of the contract are available at The Smoking Gun. The document is titled a "Contract of Wifely Expectations" and it establishes "guidelines" for Frey's wife in terms of hygiene, clothing, and sexual activities. A few of the highlights:

Hygiene & Self-Care:

You will shave every third day, which includes underarms, chest, legs, and pubic area (navel to anus), all areas are to be completely shaven. Above your vaginal slit you may have a patch of pubic hair in any shape, that must be centered above your vaginal slit, it will measure no greater than 2.0"X1.0", and will maintain a hair length of less 1/3".

Sleepwear & Sleeping:

When we are at home, and alone as a family, you will be naked within 20 minutes of the kids being in bed, and then sleep naked, unless instructed otherwise. If I am not home when the kids go to bed you are still to be naked before I return home. The only exception will be during your menstrual cycle.
When we are not at home, or not alone as a family, you will try to ensure that we sleep together. If we do sleep together you will sleep naked. I will make exceptions for sleepwear, but only if you do not ask for them. Exception will be given based on how well you follow this contract in its entirety. . . .
When exceptions are given the following is acceptable and is your choice: T-Shirts, pajama tops, or gowns as long as the over-all length is not past your knees. Panties (any type) can be worn also. Absolutely no bottoms, shorts, pajama pants, or full gowns can be worn.
. . .

My Time:

When we are at home and alone as a family, from when you are to be naked until 12:00 am, or for three hours, whichever is later, will be My-Time. This time will be, time you will devout (sic) solely to me, whereas you will be in my service to do anything and everything I want, which may or may not be sexual in manner.
. . .
During My-Time you --
WILL NOT:
1) Argue about anything with me or to me.
2) Complain about anything to me, or about me.
3) Cry, sob, whine, or pout.
4) Sigh, moan, sulk, or otherwise show displeasure or unhappiness.
5) Raise your voice at or to me.
6) Be condescending to, or about me.
7) Ask for anything from me or for me.
8) Be distracted from me, by other things.
During My-Time you --
WILL:
1) Be subservient, submissive, and totally obedient.
2) To do what you are asked, when you are asked, exactly how you are asked.
3) Be cheerful and adoring towards me.
4) Be close at all times, unless otherwise told to.
5) Perform any and all sexual acts, excluding anal penetration and/or ingestion of [semen], when told to.

. . .
Fellatio, Intercourse, & Other Sex Acts:

Fellatio must last at least 5 min. and may include climax. Intercourse includes anal and vaginal intercourse. Sex Acts can be oral, anal, or vaginal, and include but are not limited too (sic): stripping, hand-jobs, fingering, masturbation, dildoing, vibrators, and object insertions. All applications of lube to myself, you, or any object, will be done by you.

The contract further provides that the wife can earn "good behavior days" for being compliant and performing "with complete and total enthusiasm." If the wife misbehaves or is noncompliant, she loses "good behavior days." Noncompliance specifically includes starting something and then not finishing "even if [the wife states] that [she is] in pain or something hurts." If the wife did not have sufficient "good behavior days" accumulated to "pay" for her noncompliance, the contract specifies that she would "be tied to the bed and [Frey] will do whatever [he] wish[es] too (sic) [her]." The wife also is required to apologize for the noncompliance and "explain how [she is] ready to be [his] sex slave again." The contract allows the wife to "redeem" good behavior days to "get out of" compliance on some days, as long as she provides sufficient notice of her intent to "cash in" a good behavior day.

The trial began this week and the victim took the stand on Wednesday to describe "in painful detail the events that led to her husband's arrest." She told of two "relatively minor incidents" that had led her to call a domestic violence hot line, then testified about the contract, and then testified about how she had been "noncompliant" on one night and Frey had restrained her arms with a rope and performed "a sex act" on her. Local television coverage has indicated that the "sex act" in question was actually anal penetration.

The case is continuing, and Frey was expected to take the stand in his own defense. If convicted, Frey faces life in prison. Oh, and he also faces charges in an "unrelated" case in which he faces 40 counts of "sexual exploitation of a minor" based on pornographic images found on his computer in which he superimposed the faces of his wife and her younger sister onto the bodies of children.

**UPDATE -- March 31, 2006:
On Thursday, March 30, 2006, Frey took the stand in his own defense. His testimony depicted that he was "fixated on a certain sex act that he wanted his wife to perform," but he testified that he did not force it upon her. Frey testified that he asked his wife if he could tie her up, but that she said no. He testified that he "asked for a certain sex act and they tried it" but stopped because she was uncomfortable. He acknowledged drafting the "contract" but argued that it was just part of a sexual fantasy, was not enforced, and was "no big deal."

Closing arguments were made yesterday, as well. The prosecutor argued that Frey forced "the sex act" on his wife after she refused. The defense argued that no "attack" happened and that the event was merely "a playful sexual relationship that was not criminal."

**UPDATE: March 31, 2006:
Today the jury found Frey GUILTY of sexually assaulting his wife. The jury concluded that there was not sufficient evidence that Frey had tied his wife up, so they did not convict on the kidnapping charge; they concluded, however, that he had forced a sex act on her. The jury deliberated for approximately 4 hours before returning the verdict.

Pottawatttamie County Attorney Matt Wilber said, "I don't care if you're married or not. You can't sexually assault your wife."

Frey faces up to 10 years in prison for this conviction, and substantially more on the other charges for which he is still awaiting trial.

Links:
Omaha World Herald Second March 31, 2006 Article.
Omaha World Herald March 31, 2006, Article.
Omaha World Herald March 30, 2006, Article.
Omaha World Herald March 29, 2006, Article.
The Smoking Gun (Contract .pdf).

Frankie Can't Relax (February 21, 2006) (commenting on contract and providing Francesca's own humorous spin on the story)

Jill Carroll Released, Safe and Unharmed.

2006-03-30T09:14:00.000-06:00

How about some GOOD news for a change?

The Christian Science Monitor posted the following simple and powerful message on its website at 7:03 this morning:

After being held hostage for nearly three months, Jill Carroll is free.

The Washington Post reports this morning that "American journalist Jill Carroll, abducted in early January by gunmen in Baghdad, was released to a Sunni Arab political party in the capital Thursday morning after 82 days in captivity." Carroll's statement:

"I was treated very well. That's important for people to know," she said in an interview with an Arabic-speaking questioner at the headquarters of the Iraqi Islamic Party. "They never hit me, they never even threatened to hit me. I'm just happy to be free, and I want to be with my family."

Carroll said that she does not know where she was held or why her kidnappers decided to release her. During her captivity, Carroll spent her days sitting in a small room with one window, was fed well, allowed to shower whenever she wanted, but given very little information from the outside world.

Carroll's captors had previously aired videotapes in which they threatened to kill Carroll unless all female prisoners in American detention facilities in Iraq was released. Carroll was last seen in a February 9 video broadcast on Kuwaiti television, in which Carroll asked her supporters to do whatever was necessary to gain her release.

CNN.com has more on the developing story.

Coverage of Hamdan v. Rumsfeld Arguments.

2006-03-29T09:24:00.000-06:00

Yesterday SCOTUS heard arguments in the case of Hamdan v. Rumsfeld, concerning the validity of war crimes tribunals set up by President Bush. I won't provide much personal commentary, but there is plenty of it elsewhere in the blogosphere:

SCOTUS Blog has a nice recap of how the arguments went. It is worth noting, when reviewing SCOTUS Blog's impressions, that the firm is co-counsel for Hamdan. According to SCOTUS Blog, the Court "probed deeply into the validity of the war crimes tribunals set up by President Bush, and came away looking decidedly skeptical. From all appearances during the 90-minute argument, the Court may have some difficulty fashioning an opinion, but perhaps not a result: the existing 'military commission' scheme may well fail." Additionally, SCOTUS Blog noted that "[w]ith only eight Justices participating (Chief Justice John G. Roberts, Jr., is recused) it appeared that Justice Anthony M. Kennedy might well emerge as holding the decisive vote. In a variety of ways, Kennedy seemed troubled about the legitimacy of the tribunals as presently arranged." (Transcript of Argument.)

Georgetown Law has posted a link to the audio from the arguments, for your listening pleasure.

The Pocket Part has a general overview of the case, as well as positions from both sides of the issues.

ACS Blog posted yesterday about Scalia sitting in on the arguments and hearing the case. As I posted about last weekend, there was controversy about whether Scalia should continue to hear this case in light of comments he made recently in Switzerland. Observers of the arguments have reported that Scalia appeared to be the most amenable to the government's position (not surprisingly).

The Legal Reader also posted a brief summary yesterday, with links to the The Washington Post coverage.

Jurist has a link-rich summary of the case, it's history, and the arguments.

Finally, the folks over at TalkLeft also had a summary of the goings-on.

Pretty much all of the above posts contain links to even more analysis and commentary on the case.

**UPDATE (3/30/06):**
Miami Herald Article (March 29, 2006)
SCOTUS Blog Link to Transcripts from Argument

New York City Symposium on Judicial Selection and Independence to be Held April 7, 2006.

2006-03-27T09:36:00.000-06:00

Here's an announcement about an extremely important and timely symposium of interest to the legal community. I have a friend who is involved in this, so talk it up, spread the word, and if possible, check it out:

On Friday April 7, 2006, there will be a SYMPOSIUM held at Fordham University School of Law in New York City on the subject of judicial selection and independence. The Symposium is free and open to the public.

The Symposium, titled "Rethinking Judicial Selection: A Critical Appraisal of Appointive Selection for State Court Judges," will focus on discussion of various models of appointive selection of state court judges. Norman Greene, a partner at Schoeman, Updike & Kaufman in Manhattan, was recently quoted in the New York Law Journal shedding some light on the content of the Symposium:

An appointive system by itself tells you nothing about whether it is a good system, absolutely nothing," Mr. Greene said. "But almost all of the good government groups . . . support an 'appointive' system. If we start with the assumption that an appointive system is the way to go, how do we develop a good appointive system? To say that you need a diverse, independent, credible body making these decisions doesn't make it so. What are the mechanics?"

Papers will be published in the distinguished Fordham Urban Law Journal in the Summer of 2006. The Symposium will feature panels comprised of distinguished jurists, law professors, and political science professors from all over the country. Registration is free for the event, but encouraged in advance. RSVPs are encouraged by April 3, 2006.

The Symposium is being sponsored by The American Judicature Society, The Constitution Project, New York State League of Women Voters, Stein Center for Law and Ethics, Fordham Law School, and The Fund for Modern Courts.

Important Links:
Fordham Law School Information Page.
Registration Page.
ABA Net Publicity Page.
Justice at Stake Campaign Publicity Page.
Demos Democracy Dispatch Publicity Page.
NY State Bar Association Publicity Page.
New York Law Journal Article (subscription required).

**UPDATES:**
Thank you to the following fine blogs for helping me to get the word out on this Symposium:
Either End of the Curve (Reader_IAm)
Infamy or Praise (Colin Samuels)
The World According to Pooh (Seth)
The Legal Reader (John)

Justice Scalia Opposes Civil Trials for Military Detainees.

2006-03-26T12:20:00.000-06:00

Justice Scalia has, in recent years, become involved in a number of cases where his potential recusal garnered headlines. For example:

Elk Grove Unified School District v. Newdow, the "pledge of allegiance case" out of California. Several months before the case was scheduled to be argued before the U.S. Supreme Court, Scalia was a speaker at a "Religious Freedom Day" ceremony. During his speech, Sclaia criticized how courts and society have handled church-state issues in recent years. Mayor Bill Beck of Fredericksburg, Va, who introduced Scalia at the ceremony, recalled Scalia's remarks as making it "clear that he thought anyone who did not want school children to say the Pledge of Allegiance with the words 'under Go' in it deserved a spanking." The party in that case seeking to have "under God" removed from the Pledge, Michael Newdow, affirmatively requested Scalia's recusal. The request brought a great deal of public commentary and debate about the relatively non-specific ""rules" that dictate when Justices of SCOTUS decide to recuse themselves and when they decide not to. Ultimately, Scalia decided to recuse himself from the case.

Somewhat similarly, the question of whether Scalia should recuse himself from a case arose concerning a case in which Vice President Dick Cheney was the named party. In that case, while the case was pending before SCOTUS, Cheney and Scalia went on a duck hunting trip in Louisiana together; a trip "sponsored" by an energy company. The case involved whether energy companies played too significant a role in developing Bush's energy policy and involved requests for Cheney to disclose the names of individuals who had comprised an energy task force. Scalia commented to the L.A. Times that he did "'not think [his] impartiality could reasonably be questioned' and that the only thing really wrong with the trip was that the hunting was 'lousy.'" Scalia ultimately refused to recuse himself.

And now it's happening again. According to SCOTUS Blog, this time the issue concerns comments Scalia made a couple of weeks ago in Switzerland concerning whether alien military detainees are entitled to civil trials. SCOTUS Blog reports:

[I]n response to a question about affording constitutional rights to Guantanamo detainees, he states unequivocally that "foreigners, in foreign countries, have no rights under the American Constitution" and that "nobody has ever thought otherwise." But see Rasul v. Bush, 542 U.S. 466, 483 n.15 (2004).

Of potential relevance to the current docket, in answer to one question from the audience (just after the 56:00 mark), Justice Scalia expresses incredulity at the notion that detainees captured "on the battlefield" should receive a trial in civil courts. It is, he says, a "crazy idea." To a follow-up question about the Geneva Conventions and other human rights treaties, he responds with evident disdain: "What do they mean? They mean almost anything." The questioner then refers again to a hypothetical Guantanamo detainee, at which point Justice Scalia interjects: "If he was captured by my army on a battlefield, that is where he belongs. I had a son on that battlefield and they were shooting at my son. And I am not about to give this man who was captured in a war a full jury trial. I mean it's crazy."

SCOTUS is scheduled to hear arguments on Tuesday in Hamdan v. Rumsfeld, a case in which, inter alia, a military detainee at Guantanamo Bay is asserting a right to be tried in a civilian court or by court-martial, rather than in the Pentagon's military tribunal. Other issues include the extent to which the Geneva Conventions protect detainees.

Stay tuned for updates on whether Justice Scalia concedes that his statements in Switzerland at least bring his partiality into question and merit recusal.

**UPDATES:**
Kierkegaard Lives Post-Argument Post (March 29, 2006)
How Appealing Links to Coverage (March 28, 2006)
How Appealing Links to Coverage (March 27, 2006)

The Friday Fantastic Four #8.

2006-03-24T12:29:00.000-06:00

My apologies for not having any "Fantastic Four" posts for the past two weeks. Sometimes real life just gets hectic, you know? So, without further adieu, here is the return of the Friday Fantastic Four, this the Eighth installment:

1. Featured Law-Oriented Blog.

This week's featured Law-Oriented Blog is I respectfully dissent, providing "random thoughts, ramblings and rants about things legal, illegal, tortious, outrageous and otherwise." The author, Bryan Gates, is a North Carolina lawyer focused primarily in family and domestic law, state and federal criminal defense, civil trial, traffic and DWI, and bankruptcy law. In addition to the blog, Gates also maintains another site, "Ask The Law Guy", where he answers some of the more interesting legal questions received via email.

A persual of some of Gates' recent blog entries will lead you to some interesting thoughts and discussions, including:

A discussion of the "red herring" in SCOTUS' recent decision in Georgia v. Randolph, where Justice Souter responded to Chief Justice Roberts' dissent expressing concern about the danger domestic violence victims face when abusive spouses object to searches of their homes. Gates suggests that the danger is actually quite small for a number of reasons, including the myriad of apparent loopholes to the "new" doctrine espoused in the majority's opinion and the general minimal physical evidence collected in domestic violence cases. Gates points the reader to several prior examples of "the first 'red herring'" of the SCOTUS season from past years, as well.

A discussion of how much time is reasonable to spend (or, more appropriately, to bill) on a given case. Gates discusses differences in practice between state and federal courts, as well as some of the practical difficulties encountered by lawyers in deciding how much time to spend trying to research potential witnesses and evidence.

A lighthearted discussion of Gates' "inner WalMart". Despite all the aversions to WalMart, Gates concludes that "sooner or later you have to admit that being able to buy a set of margarita glasses for $5.77 is pretty irresistible."

2. Featured Law Commentary.

This week's featured Law Commentary comes courtesy of Jurist, where guest columnist Peter Shane of The Ohio State University Moritz College of Law argues that the Bush Administration's proposed "Line-Item Veto Act" has two significant problems, including that it is not really proposing a line-item veto at all.

Shane sums up the Act as a proposal that "would allow the President to recomment to Congress that it take back or 'rescind' any item of budget authority it had previously approved" and that "envisions an expedited process for considering the President's proposals" and "allows the President to withhold the funds he proposes to rescind for up to 180 days while Congress considers his proposal. According to Shane, the President pretty much already has this exact same power, and this power is not really a line-item veto at all.

First, Shane notes that every President has an absolute right to "recommend" to Congress that it enact specific legislation to rescind previously granted budget authority, based on section 3 of Article 2 of the Constitution. Additionally, the U.S. Code includes a provision expressly authorizing the President to rescind budgetary authority when "all or part of [such authority] will not be required to carry out the full objectives or scope of programs for which it is provided" or where the President believes the authority needs to be rescinded for fiscal policy or other reasons. The U.S. Code provision even provides an expedite process. According to Shane, the new Act would make the process "even more expedited" and would allow the President to hold onto the money for a longer period of time before spending it elsewhere, but it otherwise does not really provide new powers. And, perhaps even more importantly, if this power is something the President really feels he needs "even more" of than he currently has, why doesn't he use the existing power more?

Second, the Act does not really create a line-item veto power. As Shane notes, a true line-item veto really allows the executive "to strip out of an appropriations measure an item of spending that could not be justified by the public interest, but exists entirely because of bargaining within the legislature. What the current Act would do is simply allow the President to ask Congress to go back and undo its bargain on particular pieces of arrangements already made.

Shane's discussion of this topic is interesting, and puts everything into pretty simple terms. Go check it out in its entirety.

3. Featured Non-Law-Oriented Blog.

This week's featured Non-Law-Oriented Blog is AHISTORICALITY, "because history is not destiny . . . yet." You can get a good sense of Ahistoricality's author by checking out the "Who Am I?" link. Apparently, the author has characteristics of Remus Lupin, Einstein, sloth, and Chewbacca, among other interesting tidbits.

This blog features commentary on a vast range of topics, including politics, writer's block, religion and, of course, history.

Take some time to dig through the archives. There's a wealth of good reading there.

4. Featured Just-For-Fun Site.

Finally, this week's featured Just-For-Fun Site is Google Sightseeing, a site devoted to collecting fascinating locations on "Google local" (f/k/a Google Maps). You can find locations of historical import and lots of anomolies in the google satellite captures, ranging from "UFO's" to passing aircraft to "black holes." Don't check this site out unless you are prepared to waste a big chunk of time, but it's pretty addictive to see what all is there, and pretty tempting to go look for more on your own using the google local service.

Previous Friday Fantastic Four Posts:
March 3, 2006 (FFF #7)
February 24, 2006 (FFF #6)
February 10, 2006 (FFF #5)
January 27, 2006 (FFF #4)
January 20, 2006 (FFF #3)
January 6, 2006 (FFF #2)
December 30, 2005 (FFF #1)

SCOTUS Upholds Anticipatory Warrants -- US v. Grubbs.

2006-03-21T13:01:00.000-06:00

The US Supreme Court has issued its ruling in US v. Grubbs, concerning the use of "anticipatory search warrants." The question presented in the case was whether the 4th Amendment requires suppression of evidence when the anticipatory warrant's triggering condition is satisfied, but the triggering condition is not set forth in the warrant itself.

The defendant in the case, Grubbs, was charged with possession of child pornography after ordering a videotape. Investigating officers applied for an "anticipatory warrant," to become operative after a "triggering event" occurred to indicate probable cause. The affidavit asked for a warrant that could be executed after the pornographic videotape was delivered to the house, received by Grubbs, and taken into the house. The warrant was granted, but the warrant itself did not indicate what the "triggering events" were; affidavits attached to the warrant did indicate the triggering event, however. When police executed the warrant, after Grubbs' wife received the videotape from a postman, the police presented Grubbs with the warrant (which did not list the triggering event), but not the affidavit (which did list the triggering event).

The trial court denied Grubbs' motion to suppress. The Ninth Circuit reversed, finding that the triggering event needed to be shown to the person whose property is being searched.

Today, SCOTUS reversed the Ninth Circuit. In an opinion by Scalia, the Court upheld the use of anticipatory warrants, held that the "triggering event" in the present case provided sufficient probable cause for the issuance of an anticipatory warrant, and held that the warrant itself does not require the "triggering events" to be set forth. The Court held that the "particularity" requirement in the 4th Amendment requires only that the warrant particularly set forth the place to be searched and the persons or things to be seized.

Links:
Jurist post.
SCOTUS opinion

Texas Man Freed After 18 Years; DNA Evidence Exonerates.

2006-03-21T09:45:00.000-06:00

The Dallas Morning News reports today that a Texas man has been freed after serving 18 years in prison on a rape conviction after a second DNA test exonerated him.

Gregory Wallis was 29 years old when he was accused of breaking into a woman's home and attacking her in 1988. The attacker spent hours in the home with the woman, and she made a positive identification. Wallis' photograph was placed in a photographic lineup after an anonymous tip indicated that he was involved in the attack. Wallis said that he did not know how the victim came to pick him. He said, "I was sitting at home and they came and arrested me. The next thing I know, I'm standing trial."

Wallis was convicted after a jury trial. The conviction was for burglary with intent to commit sexual assault. Wallis was sentenced to 50 years in prison. Wallis had several prior robbery convictions, but had never been known to assault anyone.

At the time of Wallis' trial, an expert testified that authorities could not extract DNA evidence to test. As a result, the trial was based on the victim's testimony and her identification of Wallis as her attacker. Wallis did not take the stand on his own behalf.

In 2004, Wallis moved for post-conviction DNA analysis. Investigators had to track down new samples from the victim and her former boyfriend, adn had to find the original DNA evidence from the attack. Initial testing in December suggested that Wallis was not guilty, but could not entirely exclude him. As a result, Wallis could have been freed then, but only if he agreed to live as a registered sex offender for the rest of his life. Wallis found that option unacceptable, and he sought more sophisticated DNA testing.

The more sophisticated testing found no match with Wallis' DNA. It further concluded that the woman was assaulted by someone who had "smoked a cigarette recovered from the crime scene."

A Texas District Court Judge granted Wallis a personal recognizance bond and said, "You should not be incarcerated -- not a moment longer." The Judge said, "I don't know how to apologize. I don't know where to start, but I'll start with me and 'I'm sorry.'" The Judge was not involved in Wallis' trial.

Wallis said he's eager to begin his new life. He speculated on his first meal as a free man -- maybe steak -- and said he's going to settle down and get a job. Like others falsely convicted in Texas, he's eligible for up to $250,000 in compensation for the years he spent locked up. Additionally, he learned to repair heating and cooling systems while in prison, and he plans to seek work in that trade.

Hat-tip: Talk Left (March 21, 2006)

Natalee Holloway Case: Is New York the Proper Forum?

2006-03-21T09:34:00.000-06:00

Elizabeth Ann Twitty and Dave Edward Holloway, the parents of Natalee Holloway have filed a civil suit against two men they believe are responsible for Natalee's disappearance. The problem? Twitty and Holloway are from Alabama, are suing two men from Aruba, for actions they believe occurred in Aruba. And they have pled Alabama law. But the suit was filed in state court in Manhattan, New York.

The Defendants have filed a forum non conveniens motion. In the motion, the Defendants allege that they are sympathetic to the Plaintiffs' not knowing the present whereabouts of Natalee, recognize the Plaintiffs' hardship and the vast media attention that has been brought upon them and the case. However, the Defendants allege:

. . . the courts of New York will not entertain claims which lack a "substantial nexus" with this state. [citation omitted.] This action not only lacks the requisite substantial nexus to New York, but lacks any nexus to this State. All parties to the action are nonresidents and nondomiciliaries of New York. All causes of action alleged in the complaint arose in Aruba, a foreign jurisdiction. Aruban law must be applied to adjudicate this case. To litigate this case in New York would put a tremendous burden on the parties and the Court given the great distances involved and the location of witnesses and evidence some 2000 miles away.

Hat-tip: Appellate Law & Practice (March 20, 2006)

**UPDATE:
Kierkegaard Lives, August 6, 2006 (NY judge dismisses civil case)

Geoffrey Fieger, Insulting Judges, and Free Speech.

2006-03-21T09:15:00.000-06:00

Geoffrey Fieger, the outspoken former attorney for Dr. Jack Kevorkian, is at the center of a constitutional battle involving a lawyer's right to "insult" judges outside the courtroom. The controversy involves comments made by Fieger while appearing on a radio talk show in 1999 after a Michigan appeals court overturned a $15 million verdict Fieger had won in a medical malpractice case.

The Michigan Attorney Grievance Commission has reprimanded Fieger for the comments made on the radio talk show. The grievance commission found that Fieger "used numerous obscenities, called the justices 'three jackass court of appeals judges,' declared war on them and referred to them as 'Nazis.'" Fieger's attorney is arguing that the comments are protected by the First Amendment and that there's no "law" that says an attorney must be dignified.

Michigan, however, has two unique Rules of Professional Conduct, including a "courtesy" rule which requires lawyers to treat judges with respect and courtesy. The grievance commission is now asking the Michigan Supreme Court to draw the line between an attorney's free speech rights and the attorney's obligation to courtesy and professionalism.

The history of the case is outlined in this article.

Hat-tip: Legal Reader (March 20, 2006).

Welcome to Spring. Here's your Blizzard.

2006-03-20T13:25:00.000-06:00

Today is supposed to be the first day of Spring. So, since I'm in Nebraska, it is naturally snowing approximately 12"-18" today. That sounds about right. Needless to say, I'm a little busy today and don't really have time to blog about legal news and happenings.

Instead, check out some of the following other bloggers:

Orin Kerr has an interesting post this morning about his observations of two Confrontation Clause arguments before SCOTUS. He's got links to the cases and the predecessors, etc.

Blawg Review #49 is up over at Jim Calloway's Law Practice Tips Blog. Some good stuff from last week in the blawg-o-sphere.

SCOTUS Blog has its own "Blog Round-Up" posted for today. More in depth and thorough than this minimalist effort on my part to be sure. But, hey, I AM sending you over there, right? It all works out in the long-run.

Ann Althouse has a Monday morning post for discussion (in the comments) about the new episodes of Sopranos and Big Love.

Pooh calls out Congressional Democrats by asking: "Are You About Anything?" (with one of my favorite online graphics of all time, I might add).

New GOP Bill on Warrantless Surveillance.

2006-03-17T10:10:00.000-06:00

New developments yesterday concerning the NSA Warrantless Surveillance program.

Senator Mike DeWine of Ohio sponsored a bill yesterday that would "legalize" additional warrantless domestic surveillance of US citizens by the government. As Jurist reports, DeWine indicates:

To engage in such surveillance, the President must have probable cause to believe that the target of surveillance is a member of or affiliated with a terrorist organization. And, he must believe that the surveillance is necessary to protect the United States from a terrorist attack.

The new bill would allow warrantless electronic surveillance for 45 days of the phone calls and e-mails of a "suspected terrorist" where one party is in the United States, and after 45 days the government would be required to obtain a warrant under FISA or justify continued warrantless surveillance to the Senate Intelligence Committee.

Obviously there are a lot of questions surrounding this bill. Some critics are arguing that the new bill gives the government too much discretion and is nothing more than an attempt to legalize an illegal practice. According to the ACLU:

"This bill makes a mockery of congressional oversight and must be rejected," said Caroline Fredrickson, Director of the ACLU Washington Legislative Office. "Congress cannot approve an illegal program when so many questions remain unanswered. When the rule of law has been broken by anyone, especially a president, the proper response is a full and independent investigation -- not a whitewash of the unlawful activity."

Links:
DeWine Bill (courtesy of SCOTUS Blog)
Jurist Report
SCOTUS Blog Commentary
ACLU Letter to Senate

Battered Woman Syndrome.

2006-03-15T09:16:00.000-06:00

There is a very thoughtful feature piece over at Medill's 'On The Docket' about Battered Woman Syndrome and how courts treat the subject when expert evidence is offered.

The focus in this particular piece is on Dixon v. U.S., a woman who attended two gun shows in Dallas, TX, accompanied by her boyfriend. Dixon's boyfriend was a convicted felon and was unable to legally purchase a firearm at the gun shows, so he had Dixon "do the dirty work for him." Dixon purchased seven guns for him. Dixon was ultimately charged with receiving a firearm while under indictment (for participation in an unrelated check-cashing scheme) and for making a false statement to purchase a firearm. Dixon acknowledging breaking the law, but said she had acted under duress because she had been abused for many years by the boyfriend and feared serious bodily harm or death if she did not follow his instructions to purchase the firearms.

The court refused to allow expert testimony relating to Battered Woman Syndrome and its possible role in Dixon's actions. The court reasoned that the expert testimony would be overly subjective. Dixon did present evidence about the abuse she suffered at the hands of her boyfriend, but the jury was not convinced. Dixon was convicted and sentenced to 34 months in prison. Dixon appealed, challenging the court's refusal of the expert evidence and concerning the court's conclusion that BWS is an affirmative defense that the defendant bears the burden to prove. The 5th Circuit Court of Appeals unanimously rejected Dixon's arguments on appeal. Now SCOTUS has agreed to hear the case, but only on the issue of what standard of proof the defendant should be held to in proving duress.

In the article about BWS, there is a good discussion of how BWS is treated differently in various states and of the juxtaposition of law, advocacy, and science involved in matters such as BWS and post-traumatic-stress disorder. Some really good food for thought in there, and certainly support for, at the least, the notion that there should be some kind of uniform treatment of BWS from state to state.

The Constitutionality of 'Good Driver' Stops.

2006-03-15T09:06:00.000-06:00

Professor Orin Kerr has branched out to start up his own blog, OrinKerr.com. No real welcome is probably necessary, since Kerr has long been blogging over at mega-blog Volokh Conspiracy, but I am going ahead and adding this new one to the blog-roll. As one of the most prolific posters at Volokh, Kerr's blog is sure to have consistently thought-provoking posts.

One such post is Kerr's post from earlier in the week asking the question, "Are 'Good Driver' Stops Constitutional?". Kerr raises some interesting questions about a relatively recent law enforcement practice, having "good driver" traffic stops where officers pull over a few good drivers who are obeying traffic laws, commend them, and offer token gifts. I've seen such a program where officers stop people and then give out drinking mugs if the driver is properly wearing his/her seatbelt.

The question Kerr raises is what happens if the officer stops somebody for obeying the law, but then through plain view or otherwise gains reasonable suspicion or probable cause to believe some violation of law is occurring. For example:

Imagine this hypo: A police officer sees a person driving in compliance with all traffic laws, and pulls over the car to reward the driver with a gift certificate. When the driver rolls down his window, however, the officer smells something funny; he looks in the car, and observes a lit marijuana cigarette sitting on the edge of the ash tray. The officer then searches the car on the ground that he has probable cause to believe it contains narcotics, and finds more drugs.

We know that the observation of the cigarette and search of the car are permitted, if the stop is lawful; but is the initial stop lawful?

The answer is not necessarily easy, but Kerr concludes that the stops probably aren't constitutional, at least to the extent they lead to incriminating evidence. The basic bottom line conclusion is probably best summed up in one of the comments to Kerr's post:

The real problem is that this creates absolutely unbounded discretion for police officers. There is nobody on the road who does not satisfy one of the following criteria: (1) in violation of some driving rule or (2) not in violation of any driving rule. If you can pull over either one, you are really asking for discretionary enforcement.

It's an interesting and thought-provoking post. We should expect no less of Kerr.

Chief Justice Roberts is a Bobblehead. (Scalia, Too)

2006-03-13T09:27:00.000-06:00

Today's Featured E-Bay auction is nothing short of spectacular. It's the Chief Justice Roberts bobblehead. According to the description, this is "Number 84 out of 100. The piece is made of high quality resin and captures the Chief's look perfectly, right down to his bald spot."

You know you want one. At last check the current bid was a "paltry" $51.00.

**UPDATE 3/15: The Roberts bobblehead ended up selling for a WHOPPING $105.60 when the bidding ended on March 14.

Now, there is a Justice Antonin Scalia bobblehead for sale. At posting the high bid is already up to $200. Not sure what to make of Scalia's bobblehead already being bid at nearly double Roberts'.

Justice O'Connor on Judicial Independence.

2006-03-13T09:04:00.000-06:00

Sandra Day O'Connor has been in the news some lately for her public commentary on the subject of judicial independence. O'Connor has delivered a number of speeches since her "retirement" from the U.S. Supreme Court in which she has vigorously defended the notion of judicial independence.

In a speech on November 7 to the American Academy of Appellate Lawyers in Washington, D.C., O'Connor described "threats to judicial independence worldwide -- including an episode in the mid-1990s in Russia in which presidential guards killed the chief judge's pet cat." O'Connor noted that threats exist closer to home, and she pointed specifically to speeches and public comments by Tom DeLay criticizing court decisions striking down school prayer and involving the Terri Schiavo case and a speech by John Cornyn suggesting a cause and effect relationship between "judicial activism" and courthouse violence.

O'Connor implored the attorneys in the audience to protect judicial independence. According to O'Connor:

There is no natural constituency for judicial independence except for a vibrant, responsible lawyer class. We can't just trust the courts to protect themselves.

O'Connor made a similar speech last week at Georgetown University. She again called out GOP leaders for posing "a direct threat" to constitutional freedoms by attacking judges and the judiciary. She again pointed specifically to past speeches and commentary by DeLay and Cornyn. Speaking about DeLay's commens on the Schiavo case, O'Connor noted that the courts became involved only after Congress passed a "one-time-only statute about Schiavo" and that the courts applied the statute "as it was written -- not as the Congressman might have wished it were written. The response to this flagrant display of judicial restraint was that the Congressman blasted the courts" for judicial "activism."

Ann Althouse noted over the weekend that O'Connor's speeches on this subject appear to basically relate to incidents that are "old news" in many respects and appear to be primarily a recycling of speeches, rather than new material. As Althouse notes:

Listening to Totenberg's report, I got the feeling she'd heard a stock speech composed a year ago. It referenced those old Cornyn and DeLay remarks, as Totenberg reports. I agree with O'Connor's points and think Totenberg put together a spiffy report, but it felt like a report from last year, too stale to address. Cornyn and DeLay haven't continued with that idiocy, and a lot of things have happened since then. Why not address those things? Why not say something about how the push-back against Cornyn and DeLay changed their behavior? Maybe she did say some other things that would have seemed fresher. I don't know. I don't have the text to use to find other things that might inspire some blogging. But the text is withheld. Why? Well, one reason for not releasing the text of a speech is because you want to deliver the same speech over and over again.

The topic, judicial independence, and Justice O'Connor's public voice continuing to advocate for independence, is likely going to be an ongoing story. Hopefully the almost universal respect that O'Connor brings to the table will enable her to be a forceful voice on this important topic, and hopefully she will continue to deliver public commentary on it. Hopefully she will also manage to deliver some "new" material to further support her advocacy.

Other Links:
NPR Audio
RawStory "rush" transcript.

Creative College Basketball Fans.

2006-03-09T09:52:00.000-06:00

I came across this post over at The World According to Pooh this morning, and it's simply too good not to share. As a huge college basketball fan sitting on pins and needles this week hoping my favorite team gets off the bubble and into the big dance, I cannot help but truly appreciate the effort and creativity of the California Golden Bears' fans.

I don't think I can add anything or say anything about this particularly better than Pooh did, so I'm going to just cannibalize his entire post for your pleasure:

Cal Golden Bear hoops fans, well played:

When USC guard Gabe Pruitt took his first trip to the free throw line early in the game, the Cal student section hollered in unison: "VIC-TOR-IA, VIC-TOR-IA," and then yelled out a telephone number. Pruitt glanced back at the crowd in horror and bewilderment before clanking his free throws.

It turns out that a couple of mischeivous little bastards from the Cal student section had been IM'ing with Pruitt all week under the identity of "Victoria," a fictional UCLA hottie, and Pruitt was eagerly anticipating a date with this nubile co-ed back in Westwood after the game. In preparation for the date, Pruitt had handed over his digits, which the Cal student section recited back to him in unison.

He of course clanked them both. There's more. Allegedly,

Transcripts of their conversation were handed out to the [B]ench [Pooh: That's the Cal student section]. My personal favorite quotes by Gabe: "You look like you have a very fit body." and "Now I want to c u so bad."

Awesome. Embarassing? Bet your ass. But for this, you Cal Crazies, you are fitting winners of this weeks reconstituted AHW. My faith in the goodness of humanity is restored.

(links via Deadspin)

Awesome, indeed.

Compiling "Guides" to the Blawg-o-Sphere.

2006-03-09T09:39:00.000-06:00

Earlier in the week I POSTED about Blawg Review's new comprehensive blogroll (in progress).

Well, it turns out that that project is not the only one currently going on to compile a comprehensive index of of the blawg-o-sphere. Ian at 3L Epiphany is doing a "similar" project. But his is, in some ways, more ambitious. Ian is actually "blogging for credit" right now in his third year of law school, and is undertaking a project that he describes as follows:

I will use 3L Epiphany to propose various methods for classifying legal blogs. My goal is to create a comprehensive infrastructure for the legal blogosphere. I will accomplish this by recommending possible categories that can distinguish among legal blogs, and describing examples of how the classification would be applied. I will design my taxonomy to be both useful and user-friendly. My sincere hope is that legal bloggers will embrace this project, and that it will stimulate a long-overdue discussion in this area.

You can access Ian's current list by checking out this post. It's a good project, and a good start to something that is potentially very meaningful and useful. So go check it out, make some recommendations if you have any, and help this 3L with his project.

Tennis Dad Drugged Kids' Opponents.

2006-03-09T09:32:00.000-06:00

This story comes courtesy of the bastion of competitive sports fire that is France. Really. I'm not kidding.

A French man has been accused of "drugging" his children's tennis opponents. The man's daughter is apparently a "rising star" in French tennis. So to give his daughter (and his son, as well) a "competitive advantage," the man took to "spiking the water bottles of his children's opponents 27 times in tournaments from 2000 to 2003, using Temesta [an anxiety drug], which can cause drowsiness." Several of the victims had to be hospitalized. Unfortunately, that's not where the story ends.

In July 2003 the man's son defeated an opponent, who complained of fatigue after the match and slept for two hours -- apparently because this man had drugged the opponent. While the opponent was driving home later, he crashed his car and was killed. Police believe he fell asleep at the wheel -- also, apparently because of the drugs. Toxicology results showed traces of Temesta in the victim's system.

Now th eman is arguing that he was "gripped by panic and anguish as his desire to see his son and daughter succeed spun out of control." He's facing up to 20 years in prison if convicted of unintentionally caused the death. The man testified:

It's something that completely took me over, and I couldn't imagine that I could be responsible for the death of your son," Fauviau, a former military pilot, told the court last week. "I never wanted things to come out like this.

Judges are expected to reach a verdict today (Thursday) in the case. I'll update this as soon as I hear whether they let him off the hook because of his "panic and anguish" or whether they send him away.

A Couple of Writing / Practice Tips.

2006-03-07T09:35:00.000-06:00

1. Careful Brief Writing.
Earlier this month, the New York Times reported on the Supreme Court argument in a case about Vermont's campaign finance laws. The article notes an exchange between Chief Justice Roberts and Vermont's Attorney General, in which

The chief justice challenged the attorney general's assertion that money was a corrupting influence on Vermont's political system, the state's main rationale for its law. "How many prosecutions for political corruption have you brought?" he asked the state official.

"Not any," Mr. Sorrell replied.

"Do you think corruption in Vermont is a serious problem?"

"It is," the attorney general replied, noting that polls showed that most state residents thought corporations and wealthy individuals exerted an undue influence in the state.

The chief justice persisted. "Would you describe your state as clean or corrupt?" he asked.

"We have got a problem in Vermont," Mr. Sorrell repeated.

The chief justice pressed further. If voters think "someone has been bought," he said, "I assume they act accordingly" at the next election and throw the incumbent out.

He also challenged a line from the attorney general's 50-page brief, an assertion that donations from special-interest groups "often determine what positions candidates and officials take on issues." Could the attorney general provide an example of such an issue, Chief Justice Roberts asked. Mr. Sorrell could not, eventually conceding that "influence" would have been a better word than "determine."

By the end of the argument, it appeared clear that Vermont's spending limits would fall, and that its contribution limits, the lowest in the country, were hanging by a thread.

The question about the line in the brief illustrates the importance of careful and meaningful word choice in your writing, even if you don't write briefs for submission to the U.S. Supreme Court. You might get called on your word choice.

Hat-Tip: Legal Writing Prof Blog (March 3, 2006)

2. Careful Proofreading.
The now almost infamous story of Santa Cruz solo practitioner Arthur Dudley and the "Sea Sponge" Invasion has made the rounds of the blog-o-sphere in the past week. Just in case you missed it, here's the story:

Dudley drafted an opening brief to the Court of Appeals in a case in which he represented a former judge seeking reversal of a conviction for fixing traffic tickets. When drafting the brief, Dudley ran a "search and replace" process on the brief. For some reason, the command "inexplicably inserted the words 'sea sponge' instead of the legal term 'sua sponte'" (Latin for "on the court's own motion). The context for the changed term was argument about jury instructions. A couple of the good examples:

"An appropriate instruction limiting the judge's criminal liability . . . must be given sea sponge explaining that certain acts or omissions by themselves are not sufficient to support a conviction."

"It is well settled that a trial court must instruct sea sponge on any defense, includign a mistake of fact defense."

Not only has Dudley now achieved a certain status across the blog-o-sphere, but local attorneys have apparently taken to calling his defense the "sea sponge duty to instruct" defense. So. Yeah. Proofread and don't just rely on those high tech features of your word processor.

Hat-tip: Legal Writing Prof Blog (March 2, 2006)

3. Madison, Billy Madison, as Precedent.
Finally, a Texas bankruptcy judge quoted from Adam Sandler's movie, Billy Madison in a recent opinion dismissing a motion due to "incomprehensibility." The judge wrote that "[t]he court cannot determine the substance, if any, of the Defendant's legal argument, nor can the court even ascertain the relief that the Defendant is requesting. The Defendant's motion is accordingly denied for being incomprehensible." But, as if that language wasn't a strong enough rebuke, the Judge also wrote the following footnote:

Or, in the words of the competition judge to Adam Sandler's title character in the movie, "Billy Madison," after Billy Madison had responded to a question with an answer that sounded superficially reasonable but lacked any substance,

Mr. Madison, what you've just said is one of the most insanely idiotic things I've ever heard. At no point in your rambling, incoherent response was there anything that could even be considered a rational thought. Everyone in this room is now dumber for having listened to it. I award you no points, and may God have mercy on your soul.

Deciphering motions like the one presented here wastes valuable chamber staff time, and invites this sort of footnote.

Hat-tip: The Smoking Gun

California's Sex Offender Hierarchy.

2006-03-07T09:22:00.000-06:00

California's Sex Offender Laws Challenged.

The California Supreme Court this week struck down a 1947 state law in California that made registration mandatory for offenders having consensual oral sex with a 16-year-old, but which allowed judges to decide on a case by case basis whether registration should be required for illegal intercourse with a minor. That's right, oral sex = mandatory registration; intercourse = not mandatory registration.

The California Court concluded that this differentiation in the law was unconstitutional because it treats oral sex more harshly than unlawful intercourse. The Court concluded that the differing requirements "appeared to be an unexamined remnant of state laws that did not legalize oral sex even between consenting adults until 1975." One Justice, Marvin Baxter, opined that there are "several reasons for punishing intercourse more leniently than oral sex, such as recognition of the negative effects of registration when intercourse leads to the birth of a child." I'll reserve comment on whether it's really plausible to justify more registration for oral sex than intercourse with minors.

More: San Francisco Gate.com article.