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UNITED STATES SUPREME COURT

SCOTUS 2009 & 2010 News & Views SCOTUS 2009 & 2010 Decisions

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February 6--February 8, 2010

FEDERAL COURTS

3rd Circuit to Mull Privacy of Cell Phone Data

Case offers rare glimpse into the mechanics of federal criminal investigations where nearly all documents are filed ex parte and stay under seal until indictments are handed up

Shannon P. Duffy, The Legal Intelligencer

02-08-10 -- In a case that could prove to be one of the most important privacy rights battles of the modern era, the 3rd U.S. Circuit Court of Appeals will hear argument this week on the proper legal standard to apply when prosecutors demand cell phone location data. . . . The data, which are recorded about once every seven seconds whenever a cell phone is turned on, effectively track the whereabouts and the comings and goings of every cell phone user. . . . Justice Department lawyers argue that, by statute, they need only show "reasonable grounds" to believe that such records are "relevant and material to an ongoing criminal investigation."

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SEC Abandons Beleaguered Backdating Case Against Former Broadcom Executives

Amanda Bronstad, The National Law Journal

02-08-10 -- The U.S. Securities and Exchange Commission has voluntarily dropped its civil case against four former executives of Broadcom Corp., including the former general counsel. The move came one week after a federal judge said there were "serious problems" with the charges. . . . It was the latest setback in the U.S. government's pursuit of securities fraud tied to stock options backdating at Broadcom. On Dec. 15, U.S. District Judge Cormac Carney dismissed criminal charges against Broadcom co-founder Henry Nicholas and William Ruehle, the former chief financial officer, based in large part on prosecutorial misconduct. The judge also dismissed the SEC's related complaint but gave the commission the option to amend the charges.

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Federal judge breathes new life into 30-year-old death penalty case from San Jose

By Howard Mintz, mercurynews.com 

02-07-10 -- Few of the nearly 700 inmates on California's death row have awaited execution longer than Santa Clara County's Marvin Pete Walker Jr. . . . But as he approaches three decades inside San Quentin, Walker's long journey through the legal system has just taken one more turn that could breathe new life into his effort to overturn his death sentence and certainly prolong his legal battle. . . . Last week, a federal judge ordered new hearings into Walker's case, concluding that he has raised enough doubt about the effectiveness of the lawyer who defended him in his 1980 trial that there must be a thorough inquiry into whether his murder conviction and death sentence were tainted. . . . Although state prosecutors insist Walker received a fair trial, Oakland-based U.S. District Judge Saundra Brown Armstrong's 17-page ruling could send the case back to square one if she concludes the defense lawyer's performance fell below constitutional standards.

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GENERAL

Race & Gender of Judges Make Enormous Differences in Rulings, Studies Find

By Edward A. Adams, ABA Journal

02-06-10 -- A judge's race or gender makes for a dramatic difference in the outcome of cases they hear—at least for cases in which race and gender allegedly play a role in the conduct of the parties, according to two recent studies.

The results were the focus of a program about “Diversity on the Bench: Is the ‘Wise Latina’ a Myth?,” sponsored by the ABA Judicial Division at the ABA Midyear Meeting in Orlando on Saturday afternoon. . . . In federal racial harassment cases, one study (PDF) found that plaintiffs lost just 54 percent of the time when the judge handling the case was an African-American. Yet plaintiffs lost 81 percent of the time when the judge was Hispanic, 79 percent when the judge was white, and 67 percent of the time when the judge was Asian American. . . . The comprehensive study, by professors from the University of Pittsburgh School of Law and Carnegie Mellon University's Tepper School of Business, examined a random assortment of 40 percent of all reported racial harassment cases from six federal circuits between 1981 and 2003.

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DISTRICT OF COLUMBIA  

After Ex-Girlfriend's Conviction, Ethics Complaint Still Stalks Judge

Jordan Weissmann, The National Law Journal

02-08-10 -- When a District of Columbia jury convicted Taylar Nuevelle last week of charges that she had stalked her former girlfriend, Magistrate Judge Janet Albert, it brought closure to the public half of a drama that has played out for more than a year at the D.C. Superior Court. . . . For Nuevelle, the only uncertainty left is her sentence. The 40-year-old Nuevelle, who already has another felony conviction on her record, faces a maximum of 16 years in prison. For Albert, the remaining question is what happens to the judicial misconduct complaint lodged against her by Nuevelle after their 2008 breakup. . . . Nuevelle's complaint, filed in October 2008, is being investigated by the Superior Court's Committee on the Selection and Tenure of Magistrate Judges, which has not yet held a formal hearing, according to a source with direct knowledge of the process. Nuevelle claimed that Albert, who handles child abuse and neglect cases in Family Court, misused her judicial authority in several ways -- from privately mocking litigants to sending a U.S. marshal to investigate Nuevelle after their relationship cratered. If the committee finds the allegations are true, Albert could at worst lose her job. Albert's lawyer, Schertler & Onorato partner Robert Spagnoletti, declined to comment on the complaint.

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FLORIDA  

Judge Reprimanded for Misleading YouTube Ads

By Jeff Gorman, Courthouse News Service 

02-08-10 -- The Florida Supreme Court announced that it will publicly reprimand a judge over a misleading YouTube advertisement. . . . Judge Angela Dempsey posted an advertisement to "re-elect" herself in 2008. In addition to using the word "re-elect" in her online ad, one of her campaign mailers claimed that she had "20 years of legal experience." . . . Dempsey was not elected as a judge before the 2008 campaign; she was appointed to the bench in 2005. . . . As for the 20 years of legal experience, she was admitted to the practice of law in 1994.

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ILLINOIS  

Illinois Supreme Court Uncaps Medical Malpractice Damages Again

Lynne Marek, The National Law Journal

02-08-10 -- The Illinois Supreme Court has once again shot down a state law capping non-monetary damages in medical malpractice lawsuits, finding that such a statute violates the separation of powers between the judicial and legislative branches. . . . The high court said in the Thursday decision that the limit on non-monetary damages, such as those for pain and suffering, interferes with "the authority of the judicial branch to reduce verdicts." While four justices backed the decision, two concurred in part and dissented in part, and one didn't participate. . . . Health care industry defenders and trial lawyer opponents of the 2005 law squared off in the case, which alleged malpractice against a hospital, doctor and nurse involved in the delivery of a brain-damaged baby. The new law would have capped damages in such cases at $1 million against hospitals and their personnel and $500,000 against individual doctors.

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MASSACHUSETTS   

SJC says lewd IMs to minors not illegal

Patrick, legislators aim to close loophole

By Jonathan Saltzman and John R. Ellement, Boston Globe Staff

02-08-10 -- A Beverly man who sent a series of sexually explicit instant messages to someone he thought was a 13-year-old girl had his convictions overturned yesterday by the state’s highest court, which declared that state law does not bar people from sending lewd computer messages to minors. . . . Although state law bans the dissemination of “any matter harmful to minors’’ - including photographs, magazines, movies, and “handwritten or printed material’’ - it does not mention instant messaging or other text sent online. . . . “The online conversations in this case, as they were not written with pen or pencil, cannot be considered `handwritten’ materials,’’ Justice Francis X. Spina wrote on behalf of the Supreme Judicial Court, in a ruling that illustrates how evolving technology outpaces changes in legal language. . . . “If the Legislature wishes to include instant messaging or other electronically transmitted text in the definition,’’ the court added in the unanimous decision, “it is for the Legislature, not the court, to do so.’’

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NEW YORK  

As 9/11 health trials loom, first cases include some with credibility problems

David B. Caruso, Associated Press Writer, Los Angeles Times

02-08-10 -- As the first cases in a massive battle over illnesses linked to 9/11 near trial, an Associated Press investigation has found that several of the initial 30 suits contain inconsistent or exaggerated claims about how the workers got sick or how much time they spent at ground zero. . . . One demolition worker who said he developed health problems after toiling for six months in the toxic ruins of the World Trade Center has actually been severely ill since the 1990s. In a previous medical malpractice case, he said he was so sick between 2000 and 2003 that he couldn't work regularly. He never mentioned 9/11 during his testimony in that lawsuit. . . . Lawyers for a police officer from northern New Jersey who died in 2006 claimed in a court filing that he spent nearly 300 days handling debris at ground zero, but his work records indicate that his actual time and duties related to 9/11 were far more limited. During the months the lawyers said the man worked at ground zero, he was recording full-time shifts in Cresskill, N.J. . . . Another police officer who was listed by her lawyers as having lung cancer, doesn't have cancer at all. Her actual illness involves something akin to chronic asthma. She insists her lawyers were mistaken. . . . The three cases are among the 30 plaintiffs whose suits are being considered for May trials over the city's culpability for chronic illnesses caused by exposure to contaminated dust in the months after the Sept. 11, 2001 terrorist attacks. . . . Those cases are among the thousands filed over the health of ground zero workers, but they have an outsized importance.

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OHIO  

More proof of dysfunction in criminal justice system

Youngstown Vindicator

02-07-10 -- A community in shock over the cold-blooded slaying of an 80-year-old God-fearing woman should not have to wonder about the ability of the criminal justice system to make the killer pay for his dastardly deed. . . . But that’s exactly what residents of the city of Youngstown and of the Mahoning Valley at large are experiencing today as the criminal history of the 18-year-old accused murderer, Jamar Houser, becomes public. . . . A major part of that history is the revelation that Houser had been in the Mahoning County jail in November on $500,000 bond when Judge Lou D’Apolito of the Mahoning County Common Pleas Court reduced the bond to $20,000, with a 10 percent cash option. As a result, Houser walked out of jail after posting the $2,000. . . . On Jan. 23, 80-year-old Angeline Fimognari was found shot to death in her car in the fenced-in parking lot of St. Dominic Church on Youngstown’s South Side. Angeline’s purse was missing. Six days later, city police arrested Houser, also known as “Mook,” and charged him with aggravated murder and aggravated robbery. Bond has been set at $3 million. . . . Why was he on the streets of the city in the first place? Because Judge D’Apolito reduced his $500,000 bond. Why did the judge do that? He isn’t saying. The case is still open.

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February 4--February 5, 2010

FEDERAL COURTS

Do 3rd Circuit Rulings Over Student Speech on
MySpace Pages Contradict?

Shannon P. Duffy, The Legal Intelligencer

February 05, 2010

02-05-10 -- Lawyers were scratching their heads on Thursday over a federal appellate court's seemingly conflicting rulings in a pair of closely watched student-speech cases that both involve high school students who were suspended for creating fake MySpace pages on their home computers to ridicule their principals. . . . Although the cases appeared at first glance to raise nearly identical legal questions about the limits on a school's power to discipline students for off-campus speech, the 3rd U.S. Circuit Court of Appeals sided with the student in Layshock v. Hermitage School District and with the school in J.S. v. Blue Mountain School District. . . . In Layshock, a unanimous three-judge panel declared that punishing students for off-campus speech violates their First Amendment rights. But the Blue Mountain panel split, voting 2-1 in holding that students may be punished for lewd speech on the Internet about school officials that has the potential to create a substantial disturbance at the school.

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Settlement Pressure Builds for Parties in 9/11 Injury Cases

Mark Hamblett, New York Law Journal

02-05-10 -- A draft settlement has been negotiated in the nearly 10,000 lawsuits seeking damages for respiratory and other ailments allegedly incurred in the first response and massive cleanup after the Sept. 11, 2001, terror attacks on the World Trade Center. . . . "There have been intensive discussions going on, as I've been given to understand, looking to settlements of individual cases and globally of all cases," Southern District of New York Judge Alvin K. Hellerstein disclosed at a Jan. 21 hearing with lawyers for the plaintiffs and counsel for New York City and other defendants, according to a transcript of the session. . . . The possibility of a settlement was disclosed when Hellerstein asked how negotiations were going. The judge said that "the settlement is complicated," and added, "I don't know what numbers have been discussed or what terms have been discussed or what a timetable will be."

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Lawsuits Accusing Banks of Illegal Overdraft Fees
Start to Add Up

Tresa Baldas, The National Law Journal

02-05-10 -- For the third time in a month, Washington, D.C.'s Tycko & Zavareei has filed a lawsuit challenging overdraft fees. The latest case, filed Monday in federal court in Atlanta, targets Cincinnati-based Fifth Third Bank. . . . Two similar suits were filed in January -- one against TD Bank in Washington, D.C., and the other against Citizens Financial Group in Chicago. The firm says more are in the pipeline. . . . In the Fifth Third suit, customers allege that the bank charges unjustified overdraft fees in violation of state and federal laws. Specifically, the suit accuses Fifth Third of manipulating debit postings to maximize overdraft fees, even when the customer has enough funds to cover some of the withdrawals or purchases. The suit also challenges the bank's practice of charging overdraft fees every day an account is overdrawn, even if it's overdrawn solely because of the overdraft fees.

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Senate panel backs Obama's judge nominee

Bob Egelko, Chronicle Staff Writer

02-05-10 -- The Senate Judiciary Committee approved President Obama's nomination of U.S. Magistrate Edward Chen to a federal judgeship in San Francisco on a party-line vote for the second time Thursday, with Republicans criticizing his public statements and background as an American Civil Liberties Union lawyer. . . . The 12-7 vote was identical to Chen's margin of approval at a committee hearing in October. Democratic leaders never brought the nomination up for a Senate floor vote and instead returned it to Obama, who renominated Chen last month. . . . Chen, 56, was appointed as a magistrate by Bay Area federal judges in 2001. He would be the first Asian American judge in the federal Northern District of California, which extends along the coast from Monterey County to the Oregon border.

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BofA Settles With SEC, Faces New Suit From New York Attorney General

Zach Lowe, The American Lawyer

02-04-10 -- Are $127 million and some oversight provisions enough to placate Judge Jed Rakoff? Last September, Rakoff ferociously rejected a proposed settlement agreement under which Bank of America would have paid $33 million fines to settle a Securities and Exchange Commission lawsuit charging the bank with failing to notify shareholders that Merrill Lynch, which BofA purchased under pressure in late 2008, was going to pay as much as $5.8 billion in employee bonuses in early 2009. . . . Rakoff dismissed the proposed $33 million settlement as "trivial" and "absurd," and wondered why the bank -- and ultimately its shareholders -- should pay the fine instead of the individual executives who committed the alleged disclosure violations. He even raised the possibility that BofA's outside counsel at Wachtell, Lipton, Rosen & Katz might deserve some punishment.

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CALIFORNIA  

Judge: Taping by spokesman OK

Wyatt Buchanan, SF Gate

02-05-10 -- A former spokesman for California Attorney General Jerry Brown did not break the law when he secretly recorded telephone conversations with several reporters, including a reporter from The Chronicle, the Alameda County District Attorney has decided. . . . Scott Gerber, the former spokesman, resigned last year after it was revealed that he taped six interviews with five reporters without their consent.

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Judge Censured for Ordering Lawyers to Be Paid by
Retailer Gift Vouchers

Mike McKee, The Recorder

02-04-10 -- No one was more dumbfounded than now-retired Judge Brett Klein when California's Commission on Judicial Performance initiated an investigation into his handling of a class action settlement. . . . That investigation, begun three weeks ago, concluded Tuesday with the CJP issuing a seven-page order publicly censuring the 20-year veteran, who stepped down from the bench on Dec. 1, and barring him from future judicial assignments. . . . "I was a bit surprised that after they received my written response in their preliminary investigation that they went ahead with this," the 60-year-old former Los Angeles County Superior Court judge said Tuesday. "In the past, they have mostly seemed interested in corruption and judges who don't get their work done and then falsely sign their pay stub affidavits. . . . "But now," he added, "they seem to be moving into a different area for them, which is reviewing the correctness of trial judges' rulings, which I find more the function of an appellate court."

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DISTRICT OF COLUMBIA  

D.C. Lawyer Will Defend Chicago's Gun Law Before Supreme Court

Tony Mauro, The National Law Journal

02-05-10 -- A Washington, D.C. solo practitioner with extensive experience before the Supreme Court will argue in defense of the city of Chicago's strict handgun ordinance in a closely watched Second Amendment case next month. . . . James Feldman, who argued 45 times before the high court as an assistant to the U.S. solicitor general, got the nod to argue in what is widely viewed as an uphill battle for gun control advocates. The case is McDonald v. City of Chicago.

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FLORIDA  

Fla. justices order reprimand of Tallahassee judge

The Associated Press, MiamiHerald.com

02-04-10 -- Florida Supreme Court had agreed to publicly reprimand a Tallahassee judge for misleading campaign claims. . . . The justices Thursday ruled unanimously in the case of Circuit Judge Angela Dempsey. She admitted violating ethics rules and apologized to a hearing panel of the Judicial Qualifications Commission last year.

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ILLINOIS  

Illinois Supreme Court strikes down medical malpractice law

Court says limiting damages violates separation-of-powers clause by allowing lawmakers to interfere with a jury's right to determine damages

By Bruce Japsen and Ameet Sachdev, Chicago Tribune reporters

02-04-10 -- The Illinois Supreme Court on Thursday struck down the state's medical malpractice law, saying limits on damages awarded to victims of medical negligence are unconstitutional. . . . The much-anticipated ruling deals a blow to doctors and hospital officials who say caps on damages are a way to tame rising health care costs. . . . State lawmakers in 2005 passed legislation, which was signed into law by then-Gov. Rod Blagojevich, that established limits on pain and suffering and other non-economic damages of $500,000 in cases against doctors and $1 million against hospitals. Illinois followed other states, such as California, that capped damages years ago. . . . The court said the law violates the state's separation-of-powers clause between the branches of government by allowing lawmakers to interfere with a jury's right to determine damages. "The crux of our analysis is whether the statute unduly infringes upon the inherent power of the judiciary," the majority opinion said.

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A disastrous decision

Chicago Tribune Editorial

02-04-10 -- The Illinois Supreme Court on Thursday threw out a sound law passed by the General Assembly in 2005 to protect health care in this state. The court threw out a sound law that has worked. The court threw out a sound law and essentially told the state's lawmakers: Don't even bother to try this again. . . . This is a disastrous decision. . . . It declares that caps on medical malpractice awards violate the state constitution's separation-of-powers clause. The caps limited noneconomic damages, such as pain and suffering, to $500,000 in claims against doctors and to $1 million in claims against hospitals. . . . The Legislature acted appropriately in response to a crisis. Malpractice costs were skyrocketing in Illinois because insurers were afraid to do business here. They were afraid of runaway jury verdicts. They also knew that more than 20 states had some caps on damages, making those states much safer places to do business. . . . Malpractice premiums in Illinois were particularly egregious for doctors in riskier specialties such as obstetrics and neurosurgery. As a result, doctors were leaving, particularly doctors in rural areas. They couldn't afford to practice in their communities. That made it more difficult for patients to find the care they needed. . . . The 2005 law eased the crisis. Malpractice premiums declined. The exodus of doctors stopped.

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MASSACHUSETTS   

Boston Skycap Suit Goes National After Ruling

The Associated Press, Law.com

02-05-10 -- Skycaps across the country who claim they lost tips after American Airlines imposed $2 curbside baggage fees can now join a Boston lawsuit. . . . U.S. District Court Judge William Young on Thursday certified a national class action suit against the airline. . . . The class action lawsuit comes 18 months after a federal jury awarded nine current and former American Airlines skycaps from Massachusetts $325,000 for tips they lost as a result of the baggage fees.

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MICHIGAN  

Cox: Close canal to stop carp

DNA data was kept from U.S. Supreme Court, he says

By Tina Lam, Free Press Staff Writer  

02-05-10 -- Michigan Attorney General Mike Cox filed a renewed request for an immediate injunction Thursday with the U.S. Supreme Court, asking the justices to close locks on the Chicago shipping canal leading to Lake Michigan. . . . Cox's filing said the request for an injunction was based on new information that was not available to the court when it denied an injunction on Jan. 19. . . . Cox said the new information was an economic study showing the lock closure would not cause serious economic harm and the fact that federal officials knew days before the court's ruling that there was DNA evidence of Asian carp in Lake Michigan, but failed to tell the court. . . . The U.S. Army Corps of Engineers got the DNA data on Jan. 15, but didn't make it public until hours after the Supreme Court's rejection of the injunction.

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NEW JERSEY  

N.J. Court Revives Accutane Suicide Suit, Reversing Exclusion of Expert Opinion

Mary Pat Gallagher, New Jersey Law Journal

02-05-10 -- A New Jersey suit alleging Accutane caused a 19-year-old's suicide is back on track, thanks to an appeals court ruling that gives the plaintiffs another shot at admitting expert testimony that the acne drug causes depression. . . . The state's Appellate Division on Wednesday found that a flawed study, which led the trial court to dismiss the case, made up only a small part of the basis for Dr. J. Douglas Bremner's opinion. The panel remanded the case, Palazzolo v. Hoffman La Roche, Inc., A-3789, for the trial court "to consider whether Bremner should be allowed to testify on causation, without reference to the study." . . . Since the anti-acne drug was introduced in 1982, it has been the subject of myriad suits alleging it caused birth defects, psychiatric problems and bowel disease. It was withdrawn from the U.S. market in 2009, though generic versions are still available.

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Third-Party Sale Puts Product Maker Under N.J.'s Long-Arm Jurisdiction

Michael Booth, New Jersey Law Journal

02-04-10 -- Applying a liberal reading of the stream-of-commerce doctrine, a divided New Jersey Supreme Court ruled Tuesday that a product liability suit can be pursued against a foreign manufacturer whose only contact with the state is that one of its products was sold here through an independent distributor. . . . Justice Barry Albin, writing for the 5-2 majority, said that given the nature of modern international commerce and New Jersey's long-arm rule, there is no reason why a foreign manufacturer cannot be held liable, even if it has barely any contact here. . . . "The increasingly fast-paced globalization of the world economy has removed national borders as barriers to trade," Albin wrote. "Due process permits this State to provide a jurisdictional forum for its citizens who are injured by dangerous and defective products placed in the stream of commerce by a foreign manufacturer that has targeted a geographical market that includes New Jersey." . . . Chief Justice Stuart Rabner and Justices Jaynee LaVecchia, Virginia Long and John Wallace Jr. joined in Albin's opinion in Nicastro v. McIntyre Machinery America Ltd, A-29-08.

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N.J. Supreme Court rules schools can search cars of students

By Mary Fuchs/Statehouse Bureau

02-03-10 -- School officials can search students’ cars on school property if they suspect them of illegal activity, the state Supreme Court unanimously ruled today in a decision that further broadens administrators’ investigatory rights. . . . Expanding the standard of "reasonable suspicion" to students’ vehicles, the court said that "represents the best way to vindicate each student’s right to be free from unreasonable searches and to receive a thorough and efficient education." . . . "Obviously the education process is hampered when drugs and other illegal activities are present," Justice John E. Wallace Jr., wrote for the court. "Indeed, the need for school officials to maintain safety, order, and discipline is necessary whether school officials are addressing concerns inside the school building or outside on the school parking lot."

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NEW YORK  

N.Y. Jury Finds Scientist Guilty of Trying to Kill Americans in Afghanistan

Mark Hamblett, New York Law Journal

02-04-10 -- A jury convicted a U.S.-educated Pakistani neuroscientist Wednesday of trying to kill FBI agents and U.S. military personnel while she was detained in a police compound in Afghanistan in 2008. . . . Aafia Siddiqui, 37, was found guilty on all seven counts against her by jurors who deliberated for less than two full days. She faces up to life in prison when she is sentenced May 6. . . . Turning toward spectators after the jury had left the courtroom, Siddiqui said, "This is a verdict coming from Israel, not America -- your anger should be directed where it belongs. I can testify to this and I have proof." . . . Siddiqui was convicted of attempted murder of U.S. nationals and attempted murder of U.S. officers and employees, although the jury declined to find that she had acted with premeditation on either count.

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OREGON  

Circuit judge resigns

Lynn Ashcroft was being investigated for reasons related to 2008 incident

By Stacey Barchenger And Ruth Liao • Statesman Journal

02-04-10 -- Judge Lynn E. Ashcroft resigned his position on the Marion County bench Wednesday in a one-sentence letter to the governor and Supreme Court chief justice. . . . "I hereby submit my unconditional resignation from the position of Circuit Court Judge for Marion County, Oregon, to be effective February 2, 2010," his resignation states. . . . Ashcroft stopped working in his judicial capacity Jan. 27. . . . In an interview Wednesday evening, Ashcroft said that he resigned rather than undergo a public battle to defend himself. . . . "If I can benefit the system by doing this, I will," he said. "The justice system is for everybody, not just me."

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TEXAS  

Federal Jury Convicts Former El Paso Criminal District Court Judge Manuel Barraza

Department of Justice Press Release

02-04-10 -- United States Attorney John E. Murphy and David Cuthbertson, Special Agent in Charge of the Federal Bureau of Investigation–El Paso Division, announced that a federal jury this morning found former El Paso Criminal District Court Judge Manuel Joseph Barraza, aka Manny Barraza, guilty of charges related to a bribery scheme. . . . The jury convicted Barraza of two counts of wire fraud and the deprivation of honest services and one count of making false statements. The jury acquitted Barraza of one count of mail fraud. . . . Evidence presented during trial revealed that beginning on or about December 2008 and continuing and including February 26, 2009, Barraza solicited, agreed to accept, and accepted bribes in the form of cash money. He also solicited sex and agreed to accept a bribe of engaging in sexual activity with women. These acts were all committed in exchange for his influence and exercise of discretion in his official capacity as an elected judge. In carrying out his bribery scheme, Judge Barraza promised to intervene in a felony criminal case filed by the State of Texas pending in state district court in order to influence the outcome of the case.

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Even judges should say ‘I'm sorry'

By Rick Casey, Houston Chronicle Commentary

02-04-10 -- You may remember the case of Casey Price, the young woman who back in 2008 was put on trial for driving while intoxicated and then forced by the judge to undergo a drug test — after the jury came back with a verdict of not guilty. . . . It was about as blatant an abuse of judicial authority as I can remember. . . . The judge, Carolyn Marks Johnson (who is retired and was sitting as a visiting judge), ordered the drug test while the jury was deliberating and told Johnson if it turned out positive she would give that information to the jury. . . . The jury returned with its verdict before the urine test could be arranged. At that point, the judge had no more authority over Price than over any spectator in the courtroom, yet she ordered her to have the test anyway. . . . Two hours later and, to add insult to injury, an $11 charge to Price, the test came back negative. . . . It has taken a year and a half, but the judicial system's wheels of accountability have turned in this matter, and the spectacle is not pretty.

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Houston judge resigns on eve of recusal hearing

By Brian Rogers Copyright 2010 Houston Chronicle

02-03-10 -- Harris County criminal Court-at-Law Judge Reagan Helm resigned this week, more than six months after a judicial intervention in which he agreed to retire because was he suffering from dementia, according to the administrative judge over the county criminal courts. . . . “He acknowledged he was having some medical issues and talked about retirement,” County Court-at-Law Judge Jean Hughes said. She said Helm told her it was dementia. . . . Helm, 68, agreed to retire in September and would have received disability benefits, but changed his mind, she said. . . . News of Helm's resignation came on the eve of a recusal hearing in which the Harris County District Attorney's Office wanted to remove him from “any and all” cases involving accusations of domestic violence because of “deep-seated bias and prejudice.”

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UTAH  

Hands off

Supreme Court should govern itself

Salt Lake Tribune Editorial

02-04-10 -- We don't think they would get very far if Utah's judges or the governor tried to tell the Republicans who run the Legislature whom they should choose as their leaders. That's one reason we find ludicrous Sen. Scott Jenkins' bill to give the governor the power to choose the Utah Supreme Court's chief justice. . . . In Utah the governor names a lieutenant governor and appoints officers to help run the executive branch. The members of the Legislature choose speaker of the House, Senate president and majority and minority leaders. Jenkins, in fact, was elected by his peers to be majority leader. . . . Similarly, the five justices who sit on the Supreme Court are best able to select who among them is qualified to handle this important job. Even more to the point are the bedrocks of judicial independence and separation of powers. To give the executive branch the power to choose the Supreme Court's chief justice would upset this delicate balance.

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WASHINGTON   

Is Artist’s Suit Over Photo of His Bronze-Feet Sculpture Standing on Solid Legal Ground?

By Martha Neil, ABA Journal

02-05-10 -- A photographer in Washington state seemingly has an interesting fair-use argument to make concerning his photograph which, as he describes it, depicted "a woman dancing" on a public art work in Seattle that features bronze footprints inlaid in concrete. . . . His photograph, Mike Hipple says in a Mike Hipple Legal Defense Fund blog post, showed only a small portion of the sculpture by Jack Mackie. And if "a photograph taken on a public sidewalk, showing a woman interacting with a piece of public art, paid for by public funds" doesn't qualify as fair use, Hipple wonders, what does? . . . But Mackie apparently disagreed with this analysis, filing a copyright infringement suit in the Western District of Washington last year against Hipple and the photo stock agency to which he provided it for commercial use. Although Mackie declined to discuss the merits of his case with the Capital Hill Seattle Blog, it notes that artists can lose copyright protection if they don't aggressively enforce over infringement.

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February 2--February 3, 2010

FEDERAL COURTS

'Law of Nature' or 'Invention'? Court Mulls Patentability of Genes

Mark Fass, New York Law Journal

02-03-10 -- A federal judge in Manhattan heard arguments Tuesday in a lawsuit questioning the patentability of human genes.

The case, Association for Molecular Pathology v. U.S. Patent and Trademark Office, 09-civ-4515, centers on whether genes, once separated from the lengthy DNA sequence, are sufficiently "new and useful" to be deemed patentable under federal patent law. . . . The genes in dispute in the present case are BRCA1 and BRCA2, two genes closely associated with breast and ovarian cancer. . . . At Tuesday's hearing before Southern District Judge Robert W. Sweet regarding the two sides' motions for summary judgment, the lead attorney for the plaintiffs, Christopher Hansen of the American Civil Liberties Union, argued that the defendants, Myriad Genetics and the University of Utah Research Foundation, had patented the human body and "a law of nature." . . . "They uncovered a law of nature. It is very much to their credit," Hansen said. "But uncovering a law of nature is not creating an invention. Uncovering a law of nature is not patentable."

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DOJ Calls Ruling in International Extradition Dispute 'Misguided'

Mike Scarcella, The National Law Journal

02-03-10 -- Justice Department lawyers who handle extradition requests are arguing that a federal judge's ruling in Washington, D.C., that compels the government to search for and turn over favorable evidence to lawyers for a fugitive creates damaging precedent that hurts foreign relations. . . . DOJ lawyers handling the extradition of Zhenli Ye Gon, who had been charged in the United States in a drug trafficking conspiracy, on Tuesday in court criticized a ruling in January by Magistrate John Facciola of the U.S. District Court for the District of Columbia. . . . Justice attorneys filed court papers (.pdf) Monday challenging the Jan. 8 ruling, which requires the government to produce evidence that would negate the showing of probable cause that the Mexican government has offered in its effort to bring back Ye Gon to face charges there. Ye Gon is charged in Mexico with crimes that include drug and weapons offenses. He has been detained in the United States since his arrest in suburban Maryland in July 2007.

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Suit May Proceed Alleging Cancer Risk in J&J, Wal-Mart Baby Bath Products

Similar suits are pending against Gerber Products Co., Kimberly-Clark and Procter & Gamble Distributing

Henry Gottlieb, New Jersey Law Journal

02-03-10 -- A federal judge in Newark, N.J., has ruled plaintiffs can pursue a class action suit alleging that Johnson & Johnson and Wal-Mart baby bath products are unfit for sale because they contain a banned chemical that could cause cancer. . . . U.S. District Judge Dennis Cavanaugh denied the companies' motions to dismiss for failure to state a claim, saying the plaintiffs had made a good enough case to seek economic damages on theories that the companies committed deceptive trade practices and breached an implied warranty. . . . The allegations about Johnson & Johnson's Baby Shampoo and Wal-Mart's Equate Tearless Baby Wash do not say anyone has been harmed, and two of the three allegedly hazardous chemicals in the products have not been banned by the Food and Drug Administration for use in cosmetics.

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A Victims-of-Law Advertiser

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LAX 'millennium bomber' to be resentenced; 22 years is too lenient, court rules

Carol J. Williams, Los Angeles Times

02-02-10 -- The 22-year prison sentence given to would-be Los Angeles International Airport bomber Ahmed Ressam is so lenient that it constitutes procedural error and failure by the Seattle judge who sentenced him to adequately protect the public, a federal appeals court ruled Tuesday. . . . A divided three-judge panel of the U.S. 9th Circuit Court of Appeals ordered the Algerian's case transferred to a different judge for resentencing, saying that U.S. District Court Judge John C. Coughenour failed to heed federal sentencing guidelines and a U.S. Supreme Court rebuke. . . . Ressam was detained in Washington state in December 1999 when he attempted to smuggle explosives into the United States on a ferry from Canada with plans to detonate them at LAX. He initially cooperated with interrogators and provided what Coughenour termed vital insight into the workings of terrorist organizations like Al Qaeda.

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Relief, Regret Greet Anticipated Move of 9/11 Trial

Mark Hamblett, New York Law Journal

02-02-10 -- Judges, attorneys and court personnel at the Southern District courthouse at 500 Pearl St. reacted with relief, and also regret, now that it appears the trial of accused Sept. 11 mastermind Khalid Sheikh Mohammed and four co-defendants will not be held in lower Manhattan. . . . There was also the recognition that, even though the prosecution may not take place near Ground Zero, the intense security planning already under way will pay off because the Southern District will continue to handle its share of terrorism trials. . . . Court personnel interviewed declined to speak for attribution, noting that the U.S. Department of Justice has not yet determined the location of the Mohammed trial, but several people said they had been concerned that a proposed security lockdown extending outwards from the Worth Street side of 500 Pearl would make it increasingly difficult to conduct business as usual at the courthouse.

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At 1st Circuit, Unum Group Challenges Verdict Based on Insureds' False Claims

Sheri Qualters, The National Law Journal

02-02-10 -- In an appeal of a jury verdict against insurer Unum Group, a panel of the 1st U.S. Circuit Court of Appeals repeatedly grilled a whistleblower's attorney. The lawyer was seeking affirmation of the verdict, which found that Unum violated the False Claims Act by causing its insureds to file false Social Security Disability Insurance claims. . . . On Momday, the three-judge panel, which included retired U.S. Supreme Court Justice David Souter, heard oral argument in U.S. ex. rel. Loughren v. Unum Group, an appeal challenging the liability standard for private insurance companies. . . . An October 2008 jury verdict held Unum, the nation's largest private disability insurer, liable under the False Claims Act for allegedly prompting two insured individuals to submit Social Security Disability benefit claims it knew were false.

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High Court Campaign Finance Opinion Roils Dozens of Cases

Marcia Coyle, The National Law Journal

02-02-10 -- The U.S. Supreme Court's landscape-altering ruling in Citizens United v. FEC (pdf) is already triggering aftershocks in some of the dozens of campaign finance-related lawsuits in federal and state courts. . . . In SpeechNow.org v. FEC, argued before a federal appellate court less than a week after the ruling, the potential impact of the decision dominated questioning in that challenge to limits on independent expenditure committees. In two separate, high-profile cases targeting the federal ban on soft money and a state campaign disclosure law, the courts have ordered supplemental briefing on Citizens United's relevance. And the Supreme Court this term is not yet finished in this area. The justices will hear arguments in April on an appeal involving Washington's petition disclosure law.

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IMMIGRATION COURTS

Report Urges Overhaul of Immigrant Removal Adjudication System

Marcia Coyle, The National Law Journal

02-03-10 -- Neither the Department of Homeland Security nor the nation's immigration courts -- both overwhelmed by exploding caseloads and inadequate resources -- are ensuring fair decisions and due process for noncitizens, according to a top-to-bottom investigation of the system for removing aliens from the United States. . . . A pro bono team of 50 lawyers and legal assistants at Washington, D.C.'s Arnold & Porter spent more than a year examining the removal adjudication system at the request of the American Bar Association's Commission on Immigration. . . . In a 500-plus-page report to be released today, the law firm details its findings, including inconsistent positions taken by DHS on asylum and other issues, high levels of stress and burnout among immigration judges, inefficient circuit court review of removal orders, unsupportable disparities in decisions by immigration judges, a dramatic expansion of the grounds for removing noncitizens based on "aggravated felony" convictions, and too many judges who display bias or intemperate behavior on the bench. An example of one judge's behavior and the consequences it had for an immigrant family were chronicled by The National Law Journal last month. . . . The report also urges a major restructuring of the adjudication system by elevating immigration courts to Article I status and makes roughly 60 other recommendations, about half requiring action by Congress and other non-legislative steps, to address the myriad problems with the system.

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Court: Part of Oklahoma immigrant law enforceable now

By The Associated Press The Oklahoman   

02-02-10 -- A federal appeals court panel on Tuesday upheld much of an injunction against Oklahoma's tough anti-illegal immigrant law but said the state can now force public contractors to cross-check employee names against a government list of eligible workers. . . . In a divided opinion, a three-judge panel of the 10th U.S. Circuit Court of Appeals in Denver ruled that the U.S. Chamber of Commerce and several other pro-business groups had legal standing to challenge Oklahoma's immigration law. . . . The law sought to subject businesses that hire illegal immigrants to financial penalties, dictate who can and cannot be fired and require contractors to withhold taxes for workers without proper documentation. . . . The panel said that though the plaintiffs would likely triumph with most of their claims, Oklahoma can direct employers to a federal database of workers eligible to work in this country. / You can access the ruling at this link.

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Fate of Obama’s aunt to be fought behind closed doors

By Laurel J. Sweet, Boston Herald

02-02-10 -- The illegal alien aunt of President Obama could learn this week whether she can put down roots in Boston - or start packing her bags for a one-way trip back to Kenya. . . . And, save for U.S. Immigration Court Judge Leonard I. Shapiro, she’ll know before anyone else. Zeituni Polly Onyango has persuaded Shapiro to bar the public from her removal proceeding Thursday morning at the John F. Kennedy Federal Building, though it’s unclear why. . . . “I assume (Shapiro) thought it would be a three-ring circus. She’s the aunt of the president of the United States - the most famous man in the world,” said Mike Rogers, spokesman for the Ohio law firm defending Onyango, 57, against the Department of Homeland Security.

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ARIZONA  

Maricopa County Sheriff's official faces hearing

Contempt case is tied to failure to transport inmates

by Michael Kiefer, JJ Hensley and Yvonne Wingett The Arizona Republic

02-02-10 -- The Maricopa County Sheriff's Office is still failing to meet a state-law mandate to transport county jail inmates to their court hearings. . . . And a sheriff's deputy chief, who last fall was held in contempt of court for the office's failure to follow the law, will appear before a judge on Friday to answer nearly 200 new counts. . . . The Sheriff's Office has struggled to get inmates in court on time since last summer, and a series of steps that court and sheriff's administrators took to alleviate the strain has done little to help. . . . From Sept. 24, 2009, to Jan. 20, there were at least 198 incidents in which inmates were not brought to court on time or at all, and 19 Maricopa County Superior Court judicial officers filed paperwork to have sheriff's Deputy Chief Dave Trombi, the person in charge of transporting inmates, held in contempt. . . . Some people accused of crimes are held in custody because they are deemed a potential danger to society, but many are jailed only to be sure that they appear for court hearings. Under state law, it is the sole responsibility of the Sheriff's Office to bring in-custody inmates to hearings.

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CALIFORNIA  

Judicial panel disciplines retired L.A. County judge

Brett C. Klein was censured and barred from presiding over cases after he ordered that a lawyer in a class-action suit be paid $125,000 in $10 gift cards to a women's fashion store.

By Jack Leonard, Los Angeles Times

02-03-10 -- A retired Los Angeles County judge who ordered that a lawyer be paid in $10 gift cards from a women's fashion store as part of a legal settlement was censured Tuesday and barred from presiding over court cases. . . . The Commission on Judicial Performance accused Brett C. Klein of showing bias, abusing his authority and "grandstanding to the press" in a class-action lawsuit that he briefly presided over last year. . . . The lawsuit accused a clothing store chain of violating privacy laws by asking for personal identification information when customers used credit cards to make purchases. . . . As part of a settlement, which had been given preliminary approval by a different judge, the two sides agreed that Windsor Fashions would pay the customer who brought the suit $2,500 and her attorney $125,000. Other customers who came forward as part of the suit would each be given a $10 gift voucher, according to state disciplinary records.

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Guilty Verdict in San Francisco Mortgage Fraud Case

Wiretaps helped seal the deal, says one of the jurors at a woman's federal trial

Dan Levine, The Recorder

02-03-10 -- One mortgage fraud prosecution has shown, once again, why the feds just love wiretaps. . . . Judy Yeung, the former head of American Educational Foundation International, was found guilty Tuesday on several counts of wire fraud and witness tampering. According to juror Ken Hughes, the government's key witnesses had varying credibility issues because of their history of deception before deciding to cooperate with prosecutors. . . . But Yeung sounded extremely savvy and knowledgeable about the fraud on recorded phone calls, he said. Without the wiretaps, "it would have been very difficult to come up with the verdict that we did," Hughes said.

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San Francisco Mortgage Fraud Closings Draw Crowd

Dan Levine, The Recorder

02-02-10 -- Some experienced white-collar hands assembled for closings Monday in one of the few federal mortgage fraud cases to hit a Northern California jury. . . . Judy Yeung, a Chinese-American woman well known in political circles -- her business cards read "The Honorable Lady of San Francisco" -- is accused of using straw buyers to obtain fraudulent mortgages totaling $6.5 million. Yeung's case is fairly representative of the Justice Department's local mortgage fraud docket; since the housing market collapsed federal prosecutors haven't brought any large-scale indictments against corporate lenders in the Bay Area. . . . Assistant U.S. Attorney Susan Badger, the Northern District's mortgage fraud coordinator, tried Yeung's case, along with her colleague Jeffrey Rabkin. A pack of white-collar AUSAs showed up in court to watch Rabkin deliver closings. Prosecutors called several witnesses who cooperated with the government, but their testimony was corroborated by wiretaps featuring Yeung, Rabkin said.

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California sex offender residency restrictions upheld

Housing restrictions barring offenders from living near schools or parks apply even to those convicted years before the law took effect, state Supreme Court says.

By Maura Dolan, Los Angeles Times.

02-01-10 -- The California Supreme Court upheld residency restrictions for sex offenders Monday, ruling that thousands may be barred from living near schools and parks even if their sex crimes were committed years before the restrictions became law. . . . The state high court's 5-2 decision permits California to continue enforcing residency restrictions on thousands of sex offenders who were paroled after Proposition 83, known as "Jessica's Law," took effect in November 2006. . . . Four parolees challenged the residency rules, arguing that there was no place where they could live and comply with the law in the cities to which they had been paroled. The law bans sex offenders from living within 2,000 feet of schools or parks where children congregate. . . . Each challenger was convicted of a sex crime requiring lifetime registration years before Proposition 83 passed, and none was on parole for a sex crime when Jessica's Law took effect. The parolees contended that the state was illegally applying the law retroactively.

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DELAWARE  

Court upholds state's death penalty

After three-year delay, judges allows executions to resume

By Sean O'Sullivan • The News Journal of Wilmington

02-02-10 -- Delaware's death penalty was upheld as constitutional on Monday, paving the way for executions -- on hold since May 2006 -- to resume. . . . Delaware Attorney General Beau Biden said Monday he was pleased the court ruled that Delaware is meeting its constitutional obligations and that his office will be working with Superior Court to begin "scheduling executions as appropriate." . . . Biden said the three-year delay "caused uncertainty, and I'm glad this has resolved that uncertainty." . . . In its 47-page opinion, the 3rd U.S. Circuit Court of Appeals warned Delaware about "the worrisome course it appears to have taken at times" in executions.

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DISTRICT OF COLUMBIA  

Woman Found Guilty of Stalking Judge

Jordan Weissmann, The National Law Journal

02-03-10 -- Taylar Nuevelle, the woman accused of stalking a D.C. magistrate judge, was convicted of all three counts against her Tuesday, and was ordered held without bond until sentencing on April 7. . . . Jurors found Nuevelle guilty of unlawful entry, stalking and second degree burglary. Prosecutors alleged that Nuevelle broke into the home of her former girlfriend, Magistrate Judge Janet Albert of the D.C. Superior Court, in an attempt to harass her after their breakup, and inundated her with e-mails, text messages and phone calls. A spokesman for the U.S. Attorney's Office for the District of Columbia said Nuevelle could face a maximum of 16 years in prison.

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KENTUCKY  

Louisville Bar Association releases findings on judges' performance

By Ray D'Alessio, WAVE

02-02-10 -- Do area judges make the grade? That was the question Tuesday as the Louisville Bar Association released the findings of its yearly evaluation. . . . "I think most of the time the scores are relatively high," said Jim Lunger, Vice President of the Thoroughbred Research Group.

To view the evaluation results, follow the links listed below:

Report of Findings

Comparison of Judges Summary Report

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NEW JERSEY

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NEW YORK  

Snooping by Detective 'Legitimate' Part of Divorce Process, Judge Finds

Noeleen G. Walder, New York Law Journal

02-02-10 -- A man who hired a detective to trail his wife to a motel where she was having an affair with a local priest was not stalking her, an Orange County, N.Y., judge has ruled. . . . Forced to resign after her husband turned over a recording of her and the priest to officials at the church where she worked, the wife accused her husband of violating an order of protection requiring him to stay away from her home and place of employment. . . . But Family Court Judge Debra J. Kiedaisch, who was sitting in the Supreme Court's integrated domestic violence part, held that the husband, who only handed over the tape at the urging of church officials, had the right to gather evidence to defend himself in a divorce proceeding. . . . "The hiring of a professional licensed private investigator in a matrimonial action to gather evidence is for a proper and legitimate purpose," the judge wrote in Anonymous v. Anonymous.

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N.Y. Chief Judge Rallies State Bar Backing for Threatened Judiciary Budget

Joel Stashenko, New York Law Journal

02-02-10 -- Facing the prospect of a budgetary showdown with Gov. David A. Paterson, New York Court of Appeals Chief Judge Jonathan Lippman has won support from the New York State Bar Association against what he called the governor's "outrageous" criticism of the court system's new spending proposal. . . . In his first speech to the State Bar's House of Delegates as chief judge, a feisty Lippman on Friday defended the judiciary's $2.7 billion spending plan, especially the $183.5 million increase from the current year that Paterson had blasted as "business as usual" in the face of crushing state fiscal and economic problems. . . . The increase in the judiciary's budget proposal contains $48 million for the first pay raise for state judges since 1999.

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PENNSYLVANIA  

Judicial watchdog criticized over Luzerne scandal

By Amy Worden, Philadelphia Inquirer Harrisburg Bureau

02-03-10 -- A special panel on the Luzerne County juvenile-court scandal yesterday accused the state's judicial watchdog of failing to act on complaints about one of the judges at the center of the scandal. . . . "While the Judicial Conduct Board waited, 2,000 juveniles' rights were violated," said panel member Kenneth J. Horoho said. "You had red flags and you did nothing." . . . And to help guard against misconduct, the president of the Pennsylvania Bar Association told the panel, performance evaluations for judges would increase accountability. Clifford E. Haines, a Philadelphia lawyer, said the state should establish a commission that would issue "report cards" on judges - as 17 other states do - to help "foster judicial integrity and respect."

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Judge Slashes Punitives, Upholds Jury's Finding in Hormone Replacement Therapy Case

Amaris Elliott-Engel, The Legal Intelligencer

02-03-10 -- In an opinion reducing punitive damages awarded to a breast cancer survivor by almost $70 million, Senior Judge Norman Ackerman has become the first Philadelphia Common Pleas Court judge to uphold a jury finding that drugmaker Wyeth failed to warn a plaintiff's prescribing physician of the dangers of breast cancer from using Wyeth's hormonal drugs. . . . A Philadelphia jury awarded $75 million in punitive damages and $3.7 million in compensatory damages last fall in Barton v. Wyeth. . . . Both the plaintiff and defendant in Barton could claim wins and losses in Ackerman's Jan. 29 opinion. Cross-appeals are expected, according to interviews and press statements.

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'Original victims' cheated in Luzerne scandal?

By Amy Worden, Philadelphia Inquirer Harrisburg Bureau

02-02-10 -- The state's victim advocate yesterday urged a special panel not to forget the thousands of "original victims" allegedly harmed by juveniles whose cases were heard by judges at the center of the Luzerne County criminal-justice scandal. . . . Carol L. Lavery, who heads Pennsylvania's Office of the Victim Advocate, says she has received letters from numerous victims - and parents of victims - of juvenile offenders whose cases were vacated as a result of the "cash for kids" corruption investigation. . . . Former Luzerne County Court Judges Mark A. Ciavarella Jr. and Michael T. Conahan are accused of collecting $2.6 million in kickbacks for sending thousands of children to detention at private facilities. . . . The two pleaded guilty last year to fraud charges, but a federal judge threw out their plea agreements, saying the men had not accepted responsibility. They are awaiting trial.

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