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Friday Roundup

And Phillip Morris says smoking is good for you.  A month ago I mentioned complaints about the increasing use of Tasers by law enforcement personnel, which has allegedly led to a number of deaths.  I labeled the item "March of Technology," and in a true indication of how technologies overlap, you can find the 20 Top Taser Videos on YouTube

Of course, technology and law overlap too, and Taser International, which manufactures -- well, if you can't guess, you're too dumb to be reading this blog -- has been the subject of numerous lawsuits over the past few years.  Up until last year, it had an unblemished record of success:  70 cases had been decided in its favor or dismissed, although it had reputedly agreed to settle some of those cases.  In July, though, a California Federal court jury hit up Taser International for $6.2 million for the family of a man killed after being hit multiple times by Salinas police officers using Tasers.  That prompted a drop in the company's stock of more than 10%.

The company rebounded with a win in Kentucky last month, when a jury returned a defense verdict in another suit involving Death by Taser.  Turns out that might go by the boards:  the plaintiffs' attorneys have asked the judge to set aside the verdict because a number of jurors, including the foreman, had researched Tasers --more overlapping technologies -- on the Internet.  Where did they look for their research?  The web site of Taser International.

Fleeting [expletives].  I've written a number of posts (here, for example) on the FCC's "fleeting expletives" policy.  The short version goes like this:  up until 2004, the FCC would not punish a TV or radio station for use of profanity unless the material "dwells on or repeats at length descriptions of sexual or excretory organs or activities."  At that point, the FCC decided to change its policies, and announced that henceforth any use of the word "fuck" would be punishable.  "Shit" was subsequently added to that list.

Fox TV sued, and the 2nd Circuit reversed, finding that the policy hadn't met the requirements of the Administrative Procedure Act.  The opinion also said that the change raised questions of constitutional law, on both First Amendment and vagueness grounds, but didn't decide them.  Last year the Supreme Court reversed, but remanded the case back to the 2nd for reconsideration of the constitutional issues.

The 2nd heard oral argument on the case on Wednesday, and from the looks of it (video here), things don't look so good for the FCC.  The judges openly baited the FCC's lawyer, attempting to get him to say the naughty words.  He resisted in manly form, going no further than references to the "F-word" and the "S-word."  His argument that such words could cause harm to children was met with one judge's rejoinder, "Don't people in small towns use these words?"  Another judge asked whether those people with no tolerance for profanity keep their children from going outside "because they might hear a nasty."

As I'd mentioned in my post addressing the Supreme Court's decision in Fox, the Court didn't reach the constitutional issue, but the decision was only 5-4, and Justice Thomas wrote a concurring opinion questioning the continued vitality of the Court's 1976 decision in Red Lion which gave the FCC authority to regulate "decency" in the first place.  So you might want to get a head start on getting earmuffs for your kids when they watch television.  I've been in, seen, and read hundreds of oral arguments, and I've never seen a panel so openly hostile to one side in its questioning.  This one's coming back.

Spisak update.  Back in October I talked about Frank Spisak, the erstwhile Neo-Nazi who was sentenced to death in 1983 for killing three Cleveland men.  The 6th Circuit had granted habeas and vacated his sentence, finding the jury forms improper and the conduct of Spisak's lawyer in oral argument during the penalty phase inadequate.  I thought there was some substance in the latter contention, but wrote,

I don't believe in the death penalty, but one comes away from looking at everything involved here with the feeling that if there is indeed a case to made for a it, Spisak is Exhibit "A," and nothing anybody could have possibly said would have dissuaded a jury from imposing that punishment.

Earlier this week, the Supreme court, in Smith v. Spisak, came to pretty much the same conclusion.  A claim of ineffective assistance of counsel requires proof that (a) the attorney's conduct was deficient, and (b) it prejudiced his client.  Previous decisions have established that if a court determines there was no prejudice, then it doesn't need to consider the deficiency question, and that's exactly what the Court did here: 

We assume for present purposes that Spisak is correct that the closing argument was inadequate. We nevertheless find no "reasonable probability" that a better closing argument without these defects would have made a significant difference.

One point worth noting, though.  I've mentioned before that appellate courts tend to sweep a lot of ineffective assistance claims under the rug by deciding that they fall within the category of "trial strategy and tactics."  That was precisely the argument that the State raised here, contending that Spisak's counsel's closing argument was a reasonable strategic decision "to draw the sting out ofthe prosecution's argument and gain credibility with the jury by conceding the weaknesses of his own case."  Justice Stevens, in his concurring opinion (the only one; the decision was unanimous) had a good response to that:  "But, surely, a strategy can be executed so poorly as to render even the most reasonable of trial tactics constitutionally deficient."

That's a little line which should find its way into some appellate briefs.

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