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Friday Roundup

Supreme Court news.  There are several cases still pending for decision by the Supremes -- the two cases involving life imprisonment without parole for juveniles probably being the most noteworthy -- but the Court also added another case for ruling next year.  On Monday the Court accepted certiorari in Connick v. Thompson, a civil case involving failure to disclose exculpatory evidence.  A civil case?  Yep.  Thompson was charged with murder, and the victim of a robbery which occurred shortly after the murder fingered Thompson as the perpetrator of that crime as well.  Thompson was tried and convicted of the robbery, and then tried, convicted, and sentenced to death for the murder.  At the latter trial, Thompson didn't testify, largely because prosecutors would have impeached him with the robbery conviction.  During the sentencing phase, the robbery victim testified, and the prosecutor argued that the robbery victim could have just as easily wound up as a second murder victim, and that a death sentence was necessary to punish Thompson.

One problem.  In the scuffle during the robbery, the robber had gotten some of his blood on the victim's pants.  The blood was tested, and came back as Type B.  The prosecutor later confessed that he had intentionally withheld the test from the defense, which became a big deal when it was learned that Thompson's blood type was O, and that he couldn't have committed the robbery.  That conviction was vacated, along with his death sentence in the murder case, and he sued the prosecutor's office under 42 USC §1983, arguing that the prosecutor's office's failure to properly train their attorneys in their Brady obligations violated his civil rights.  A jury agreed, and awarded Thompson $14 million.  Yes, that's a dollar sign followed by 14 and six zeroes. 

The question before the Supreme Court is whether a single Brady violation can serve as the basis of a finding that the violation was caused by an "official policy" or failure, through "deliberate indifference," in creating a policy to prevent such problems.  Still, the result here provides one possible remedy for Brady violations that I hadn't previously contemplated.  And I bet I'm not the only one.

Sentencing stuff.  I've often bewailed the disparities in sentencing that have resulted from the Ohio Supreme Court's decision in State v. Foster, which essentially gave trial judges unfettered discretion in fashioning sentences.  Turns out that the Supreme Court's decision in Booker, which changed the Federal Sentencing Guidelines from mandatory to advisory, may have had a similar effect.  Doug Berman's Sentencing Law & Policy is the go-to place for news, commentary, and analysis of Federal sentencing decisions, and yesterday morning his first post featured a story of an 845-year sentence handed down by a New York district court for financial fraud.  The second post was on an Iraq War veteran who claimed that PTSD caused him to download child pornography.  He got two years in prison.

Downsize, don't Supersize.  Volokh Conspiracy points us to this New York Times article:

Buried deep in the health care legislation that President Obama signed on Tuesday is a new requirement that will affect any American who walks into a McDonald's, Starbucks or Burger King. Every big restaurant chain in the nation will now be required to put calorie information on their menus and drive-through signs.

Just wondering.  My wife mentioned the other day that she and her fellow employees are scheduled to undergo a "diversity training" workshop at the company next week, and so it was with interest that I read this article I came across while checking out Overlawyered.  Despite massive expenditures of money on such training programs over the past 30 years, there's been little attempt to evaluate their effectiveness.  Until now:  several recent studies have shown that there's little evidence that diversity training changes attitudes, behavior, business practices in hiring and promotions, or much of anything.

Which got me to thinking.  It's been a while now since the Ohio Supreme Court mandated that lawyers have to take 2½ hours of CLE credits every two years in ethics, professionalism, and substance abuse.  It wouldn't be too difficult to study the empirical effects of that mandate:  have there been fewer disciplinary cases?  More civility among lawyers?  Fewer instances of substance abuse?  I'd be interested in knowing the results, but I kind of think there are some people who wouldn't.

That must have been some fall.  Also courtesy of Overlawyered:  this story about a lawsuit filed in Illinois claiming that the plaintiff's 77-year-old husband died as "a direct and proximate result" of a fall due to the defendant's negligence in creating an "unnatural accumulation of ice" around the shopping cart corral.  One might anticipate that Exhibit "A" for the defense at trial will be the obituary of the husband, which indicated that he fought a "courageous battle with cancer" before succumbing at his home.

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