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Case Update

Lots of news from DC, topped with the announcement that David Souter will be retiring from the Supreme Court.  For those of you with a bent for walking down Memory Lane, check out this article from the Washington Post right after Souter first took the bench:

Justice David H. Souter's moderate-sounding testimony at his confirmation hearings last September left some conservatives nervous about whether they were getting the judicial hard-liner they had been promised.

Souter's performance during his first eight months on the bench should help allay that anxiety. If Souter does not turn out to be a home run for conservatives, as White House Chief of Staff John H. Sununu reportedly predicted at the time of Souter's nomination, his votes suggest at the very least "a stand-up triple," as one court observer put it.

Well, not so much.

The Court handed down a bevy of rulings, the biggest being FCC v. Fox, which reversed the 2nd Circuit's decision striking down the FCC's "fleeting expletives" policy.  I've blogged about this before (here and here), and I'm not pleased with the result, but it was on the very narrow ground that the FCC's adoption of its policy didn't violate the Administrative Procedure Act.  Several points worth noting, though.  First, the Court never reached the First Amendment issue, because the 2nd hadn't; that issue was raised below, though, and the 2nd is free to consider it on remand.  Second, it was a 5-4 decision, and Justice Thomas, while concurring in the result, indicated he had great difficulty with the Court's prior decisions upholding regulation of broadcasting, and that he would be "open to reconsideration" of those cases.  Third, he could get his wish:  the case involving Janet Jackson's breast exposure at the Super Bowl, FCC v. CBS,  is before the Court, and was put on hold to resolve this one.  The CBS case does involve a First Amendment question. 

The other decision of note this past week was Kansas v. Ventris, which involves the use of a jailhouse informant whom the police had put into defendant's cell.  The Court had previously held that the government can't use statements made to the informant, any more than it could use statements made directly to the police, because that violates the defendant's Sixth Amendment right to counsel.  (Note that this only applies if the informant is put in with the defendant by the police.  If the informant "voluntarily" comes forward with the information, there's no violation.)  Ventris holds that while statements given to the informant can't be used in the government's case-in-chief, they can be used to impeach the defendant if he testifies.

Nothing out of the Ohio Gang, and a paltry array of cases in the courts of appeals, too; only thirty-some cases.  The notables:

Criminal.  As the Bible says, there's a time for war, a time for peace, a time to plead guilty, and a time to withdraw a plea, but the latter isn't ten or twenty years later:  the 10th District rejects a motion to withdraw a plea made in 1993, and the 8th District rejects a motion to withdraw one made in 1991... 3rd District rules that burglary and attempted theft of motor vehicle are not allied offenses, especially since they weren't committed at the same time.  Well, yeah... Trial court has parties give opening statements before voir dire, no one objects, so 2nd District says it would be tough to rule this was abuse of discretion, certainly isn't plain error... While stuff found on defendant was definitely cocaine, there was no evidence it was crack cocaine, and since that's what the indictment alleged, evidence is insufficient, and conviction gets reversed...

Civil.  3rd District says that divorce court's decision not to retain jurisdiction to modify spousal support reviewable only for abuse of discretion... 2nd District says that injury sustained by employee in employer's parking lot, while coming to pick up her paycheck on day off, was in course of employment and thus compensable...

Hyle update.  Last year, in Hyle v. Porter, the Supreme Court held that the restriction on where sex offenders can live can't be applied to those offenders who committed their crime and moved into their residence before the law took effect in 2003 (case discussed here).   But what happens if the offender committed his crime before that date, but moved into the residence after that?  Doesn't matter, says the 10th District in O'Brien v. Whalen:  it can't be applied to anyone who committed the crime before 2003, regardless of when they moved into their residence.  As I mentioned a while back, though, the legislature is considering a bill to cure the problem. 

Today's metaphysical riddle.  How vexatious a litigator can you be, if you file your notice of appeal 94 days after the judgment finding you to be one, thus easily allowing the appellate court to dismiss the whole thing without much of a fuss?

Raw deal of the week.  Father files motion for shared parenting plan, when mother shows up at hearing without lawyer, announces that he's withdrawn plan and wants custody.  Court says mother has option to settle or proceed to hearing, mother proceeds pro se, loses.  In Morris v. Messer, the 9th District affirms this, saying there's nothing in record to indicate that mother requested continuance; as dissent points out, maybe because trial court didn't explain that was an option.  Oh, by the way, did I mention that father had moved out of state?  That's the other thing that the trial court, and mother, found out about for the first time at the hearing.

Hey, you want to screw with money, that's fine.  But don't screw with somebody's liberty, and don't screw with their kids.  This was wrong.

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