As I’ve done for the last several years, here’s a recap of the major US Supreme Court decisions of the past term, focusing on criminal and civil liberties issues. I give a brief summary of each decision, plus a link to a post where I discussed the case in more detail, if in fact I did. You can bookmark this post, or you can find it by typing “recap 2009″ in the search box at the upper right corner. (keep reading…)
I gave a summary of the provisions of the new CrimR 16, which provides for open discovery. Now it’s time to take a closer look at some of the issues that can arise in actual practice. (keep reading…)
Clothes make the man, especially if “Cuyahoga County Jail” is stenciled on the back of them, sometimes a woman is a man, and if you’re a woman and go to a place called “Bum’s Saloon,” you probably shouldn’t be surprised if you get into a fight with another woman. A big decision on double jeopardy, the court takes a do-over, and the fine points of advising a defendant of his right against self-incrimination are the features this week.
Well, SCOTUS’s term has ended, and the Ohio Supreme Court didn’t favor us with any decisions over the past week, so we’ll just go to the court of appeals cases. In a minute; first, though, an important announcement. No Briefcase on Friday, since I will be celebrating my birthday. 
Just like the 37 that preceded it, it should be a gala affair, as this artist’s rendition of last year’s demonstrates. You’ll want to check Saturday’s police blotter for the casualty list.
I’ll have the 8th District roundup tomorrow, a look at some of the potential problems with the new criminal discovery rules on Wednesday, and a recap of the important decisions from the 2009 Supreme Court term on Thursday.
By the way, there are a number of statements in the above paragraph that are actually true.
In the courts of appeals, where there’s not much going on either… (keep reading…)
Splitting Hairs Department. One thing that being a lawyer teaches you is an appreciation for the nuances of language. There’s a difference between “prior calculation and design,” for example, and “premeditation.” Contract lawyers get paid lots and lots of money to pore over contracts to ensure that every last phrase has been drained of any possible ambiguity.
Well, divorce lawyers are going to get paid lots and lots and lots of money to decide whether there’s a difference between a “sequel” and a “spinoff.” Back in 1987, Michael Douglas won an Oscar for his performance as Gordon Gekko in the film “Wall Street.” The movie “Wall Street: Money Never Sleeps,” scheduled for release in September, will feature Douglas reprising his role as Gekko, starting from his release from prison for his insider trading conviction that was the climactic point of the first movie.
So what’s the problem? When Douglas divorced his first Diandra in 1999 so that he could upgrade to Catherine Zeta-Jones, the $45 million settlement included a provision that Diandra would get one-half of whatever he made in the future on “spinoffs” of whatever he’d done in the past, so she wants one-half of whatever Douglas is going to get from the new movie. Aha! claim Douglas’ lawyers: it’s a sequel, not a spinoff. According to them, a sequel is where you pick up the story about a certain character after a period of time, while a spinoff is where you take a character from a particular movie or TV show and move him into a different setting. (The difference is linguistic, not artistic, otherwise we could have a protracted debate about which was worse: Police Academy IV or the typical Jason Alexander post-Seinfeld starring vehicle.)
I guess Diandra would have a slam-dunk if Douglas started showing up as the pitch-animal for Geico.
Bullshit Law Suit of the Week™, International Edition. Colin Dunstan of Australia is our hands-down winner. Colin, married at the time, began an office romance which ended badly in 1994, and spent the next three years complaining that his ex-lover was harassing him at work. His employer rejected his claims and eventually canned him, pushing him over the edge. He sent 28 letter bombs to various colleagues and superiors at the company, earning the sobriquet of “Australia’s worst letter bomber.” (Aside: we don’t even keep track of that sort of thing here in America. If you’re not in the running for “worst serial rapist” or “biggest mass murderer,” you’re a nobody in the pantheon of crime. If you’re batshit crazy, you get a trophy inscribed “The Unabomber” to put on your mantle, but that’s about it.)
Dunstan did eight years in prison for that, but his claim for workers compensation was reopened, and on Monday, an administrative appeals tribunal awarded him a year’s pay, deciding that while the ex-lover’s harassment wasn’t work-related, the company’s handling of his complaint aggravated an existing chronic depressive disorder was. (H/t to Overlawyered.)
Ideas for law review articles I’ve never had. Writing one about which is the most-sued mascot in the major leagues, as Professor of Sports Law Bob Jarvis did for the 2002 Cardozo Law Review. I have no idea how he did it, but he concluded that the dubious distinction belonged to the Phillie Phanatic. However many times the Phanatic has been sued, that number has been increased by one: last week a 75-year-old woman filed suit, claiming that “the massive, green, bird-anteater hybrid” had climbed onto her legs, causing a serious flareup of her arthritis.
A #$!$%^ rose by any other name. So I’m surfing the web when I come across this story in Legal Blogwatch about the MoFo2Go iPhone App. It’s a story about an application for the iPhone developed by Morrison & Foerster, which can be downloaded by their clients and used to more easily communicate with the firm. Morrison & Foerster is one of the largest law firms in the world, with offices in ten US cities, as well as in Beijing, Brussels, London, Hong Kong, Shanghai, and Tokyo. In fact, I wound up checking out the firm’s web site, which tells us that “MoFo” is synonymous with imagination, innovation, expertise, and commitment. And all I can think is that I’m pretty sure Morrison and Foerster has a very limited “urban” practice, because it’s synonymous with something else, too.
Two years ago, when the Supreme Court decided in District of Columbia v. Heller that the 2nd Amendment granted an individual right to bear arms, rather than the collective right that virtually every court decision prior to that had recognized, I made numerous predictions about the significant impact the decision was going to have. And, as I recounted here, I wasn’t the only one. Unfortunately, I proved as prescient as Irving Fisher.
Now that the Supreme Court has extended Heller, and the 2nd Amendment, to the states in last week’s decision in McDonald v. City of Chicago, does that change anything? (keep reading…)
How rare is it for a criminal case to be dismissed for a speedy trial violation? According to the 2007 Ohio Court Report (the latest one available on the Supreme Court website), of 99,779 criminal cases disposed of that year, only 84 — 8/100ths of a percent — were dismissed for that reason. So it’s somewhat surprising that the 8th would find such a violation for the second time in two months, and for the same reason. (keep reading…)
The Supreme Court’s 2009 term ends, with the big decision being McDonald v. City of Chicago, holding that the 2nd Amendment’s individual right to bear arms pronounced two years ago in District of Columbia v. Heller also applies to the states. I’ll have a discussion on that on Thursday, and next week I’ll have a recap of all the significant decisions of the term.
McDonald was a 5-4 decision, and so was Christian Legal Soc. v. Hastings College of Law, the only difference being that Kennedy sided with the conservatives in the former case and with the liberals in the latter. The Christian Legal Society was turned down for a Registered Student Organization at Hastings because it wouldn’t accept members who didn’t subscribe to its “Statement of Faith,” which prescribed, among things, that sexual activity sh
ould not occur outside of a marriage between a man and a woman. RSO status would have conferred certain benefits upon the organization, such as eligibility for school funds, none of which, it seems likely, would have been used for Bacchanalian celebrations such as those pictured at right. The College denied RSO status because the group violated the school’s non-discrimination policy. The Court relies on the “limited public forum” doctrine — that a governmental entity, in regulating property it owns, may impose restrictions on speech so long as they are reasonable and viewpoint-neutral — to uphold the school’s decision.
Sears v. Upton presented a classic miscalculation on the part of defense counsel in a capital case. The attorney strove to show that his client was the product of a middle-aged background, with family and friends testifying to what a loving, stable childhood he had, and how a death sentence would devastate the family. The prosecutor turned the tables on this argument, telling the jury that the defendant was “privileged in every way, [and] has rejected every opportunity that was afforded him.” Turns out that it wasn’t merely bad strategy, it was bad investigation: the defendant had actually been abused as a child, suffered from learning disabilities and was behaviorally handicapped, which may have been due to significant brain abnormalities. The state court found counsel’s failure to unearth this constitutionally inadequate, but determined that Upton failed to establish the prejudice prong of an ineffective assistance of counsel claim. In a per curiam opinion, the Court vacates this and sends it back for another look; Scalia dissents, concluding that, considering the heinous circumstances of the offense, “it is impossible to say that substituting the ‘deprived-childhood-cum-brain-damage’ defense for the ‘good-middle-class-kid-who-made-a-mistake’ defense would probably have produced a different verdict.”
Nothing out of Columbus, so lets’ go to the courts of appeals…
Back to the Future. For those of us who grew up in the 60′s, having your own FBI file was a rite of passage. Of course, we didn’t know it at the time; it wasn’t until later that the full extent of spying on domestic organizations was revealed. The worst abuse in this area was by the Mississippi Sovereignty Commission, which for twenty years used state agents to infiltrate civil rights groups. Disbanded in 1977, the Commission’s files were opened by court order in 1998. Among other revelations was the fact that the state was involved in the murder of three civil rights workers in Philadelphia, Miss.: one of its investigators gave the license plate number of one of the workers to the Commission, who in turn provided it to the sheriff of Neshoba County, who was subsequently implicated in the murders.
Well, the increased concern about security since 9/11 has led to an upsurge in “political spying,” as evidenced by the ACLU’s recent report, “Policing Free Speech.” Among the incidents:
Bullshit lawsuit of the week™. ”Kim Kreis, et al. v. American Multi-Cinema Inc.; AMC Entertainment Inc., No. CGC-10-501102 (San Francisco Super. Ct. filed June 25, 2010).
“Trip and fall lawsuit. The plaintiffs injured themselves on a stationary escalator at the defendants’ movie theatre, as there was no sign posted warning them that it was not moving.”
To the point. The recent push for laws banning texting while driving has me somewhat flummoxed. As I’d mentioned recently, despite the supposed technological prowess necessary to run my own blog, I’ve never sent a text message. The complications inherent in doing that while sit
ting at my desk pale in comparison to what I would imagine are involved in texting while simultaneously trying to maneuver a car through rush-hour — or any — traffic. But there must be a lot of people doing it, else why would a law prohibiting it be necessary?
Still, for those of us who don’t subscribe to the belief that for every ill of society, the first response should be, “Let’s pass a law making it a crime to do it,” the church message here suggests that education of the risks might be a suitable alternative, and that in any event, the application of simple Darwinist principles might solve the problem in due course.
Ethnic stereotypes 101. If by some chance the Republicans muster enough votes to deny Elena Kagan a Supreme Court seat, she may want to look into getting a steady gig on the Comedy Channel, as witnessed by this exchange during her confirmation hearings, when Sen. Lindsey Graham was asking her about whether the Umar Farouk Abdulmutallab, who failed in his attempt to blow up an airliner this past Christmas, should’ve been Mirandized before he was interrogated:
GRAHAM: Where were you on Christmas Day?
KAGAN: Like all Jews, I was probably at a Chinese restaurant.
She might want to be the opening act for this guy:
The Briefcase will be off on Monday, just like all of you.
So Tuesday morning I’m sitting in my office when I get a panicked call from my good buddy John Martin, the appellate guru over at the county public defender’s office. While Martin is extremely comfortable in the appeals court setting — in his last oral argument before the Supreme Court, the justices invited him back to chambers, where he presented his case over cigars and brandy snifters — he’s now engaged in an actual trial, and he’s as nervous as a cat in a Korean restaurant. He’s got a question about discovery, and figures that my abundant knowledge and keen insight will provide him the answer. Well, actually, he figured that no one else was going to take his call at 7:30 in the morning.
At any rate, we needed to clarify a point about the discovery rules, so I pulled up Criminal Rule 16 on my BFF Lexis. Except it’s a different Rule 16 — the one that goes into effect on July 1. Check the Supreme Court website, John tells me: they’ll have the current rule. No, they don’t; they also have the rule which actually won’t take effect for another two days.
Which is today. So while Lexis and the Supreme Court jumped the gun, I didn’t. But now that it’s the law — and there was a long stretch when nobody was sure it would be — it’s time to check it out. We’ll take a broad look at the rule today, and the changes it makes in the discovery process. Next week we’ll take a closer look and focus on some of the legal questions that might arise under the new rules. (keep reading…)
