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Gone Surfin'

I've got a trial coming up on Monday; it's a slip and fall that the judge threw out on summary judgment, but I got him reversed in the court of appeals, so you can imagine how happy he'll be to see me.  The defense attorney wants to try a personal injury case the week before Christmas like he wants to have an anesthetic-free root canal, but the judge assured him that the jury wouldn't even think about Christmas.  They will after I get done.  I figure my opening line in summation will be, "In this season of giving..."

Anyway, I've got that to do, and I'm lazy, so I'm just going to pick some stuff off the web for today...

The Ohio Supreme Court had a flurry of activity the other day, handing down over a half dozen decisions, including two affirmances on capital punishment cases.   In one of them, the court upheld the death penalty, but vacated the non-capital sentences and remanded for resentencing because of Foster violations.  That's sort of the ultimate good news/bad news joke, I suppose. The case is otherwise notable for the assignment of error arguing that the trial court erred in refusing to allow the jury to take "smoke breaks," thus possibly diverting the attention of the one smoker on the panel from the task at hand because of his "mentally wanting, and physically needing to smoke tobacco." 

On the other hand, despite these decisions, the number of death penalties imposed in the United States continues to fall.  As this article notes, while about 300 people were put to death in the US each year during the 90's, from 1999 that number steadily declined.  Last year, it was 128, the lowest since capital punishment was reinstated by the Supreme Court in 1976.  According to the Death Penalty Information Center, the number so far this year is 114.  Well, 115.  Florida executed someone yesterday, and as this article points out, it took 34 minutes and another round of injections for the guy to die. 

In fact, the Gallup poll notes that the public is now almost evenly split between preferring the capital punishment and life imprisonment without parole as penalties for murder; up until recently, the death penalty was preferred almost 3-1.  There's a downside to this, though; as I mentioned back in July, some research has shown that the effect of offering the possibility of life imprisonment without parole has been that the number of capital sentences are reduced marginally, while the number of people serving LIOP sentences for non-capital crimes has increased dramatically.  (In Ohio, for example, LIOP is available for any aggravated murder, and even some non-homicide cases.)  Whether that's a good thing or a bad thing is a matter for debate, I suppose, but I'm fairly sure it wasn't intended.

Ran across an interesting article on the Volokh Conspiracy website about a small-claims case in which the judge threw out the suit brought by a Muslim woman because she refused to remove her veil.  The judge stated that if her face remained covered, he couldn't properly evaluate her credibility.  The author of the article agrees with the judge, pointing out that viewing a witness, including her facial expressions, is regarded as a superior method of gauging truthfulness.  Not sure I agree with that, but that is one of the reasons an appellate court will almost invariably defer to the fact-finder's determinations of credibility.  There's a discussion about the whole thing on the site that makes for some interesting reading. 

If you're a lawyer with a PDA, or thinking about getting a PDA, this is the site for you

Speaking of Christmas -- and you were going to get a PDA for Christmas, right? -- a while back I had a post linking to another blog's Christmas Gift Guide for Lawyers.  Well, I got email from another lawyer asking me to tout his album of humorous lawyer-oriented Christmas carols, which you can sample and, er, um, buy at this site.

And speaking of emails, I also got one from the editor of a newspaper in Guernsey County, who'd stumbled across this piece I'd done three months ago on lawyers fees in appointed criminal cases, where I'd written that Guernsey County would be a good place to practice.  Why? he wanted to know.  So I wrote him an email back, explaining the figures that I had showed that Guernsey County paid the highest hourly rates ($60 for both in-court and out-of-court time) in the state, and that they pay among the highest maximums for felony ($3,000) and death penalty ($50,000) cases as well.  Of course, I told him in my best snobbish manner, you probably don't get a whole lot of death penalty cases down in Guernsey County.

The other death sentence that the Supreme Court affirmed on Thursday was from, you guessed it, Guernsey County.

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