How Appealing


Friday, January 4, 2008

"Court to rule on death penalty for child rape": Lyle Denniston has this post at "SCOTUSblog."

And Mark Sherman of The Associated Press reports that "Court Mulls Death Penalty for Child Rape."

You can access today's Order List of the U.S. Supreme Court, granting review in six cases, at this link.
Posted at 03:25 PM by Howard Bashman




Friday, January 4, 2008

"Padilla sues ex-Justice official over torture": The Chicago Tribune provides a news update that begins, "In the latest legal contest over the treatment of detained terrorist suspects, attorneys for Jose Padilla filed a suit in a California federal district court this morning against John Yoo, the former deputy assistant Attorney General whose legal opinions formed the basis for Padilla's detention and the interrogation techniques used against him that the attorneys call torture."

My earlier coverage appears at this link.
Posted at 03:22 PM by Howard Bashman




Friday, January 4, 2008

The 2008 edition of The Green Bag Almanac and Reader announces its selections for "Exemplary Legal Writing 2007": You can access the announcement at this link. Congratulations to all!
Posted at 02:20 PM by Howard Bashman




Friday, January 4, 2008

"John Yoo, Architect of the 'Torture Memos,' Sued by Jose Padilla": Jonathan Freiman, Clinical Visiting Lecturer in Law and Senior Schell Fellow at Yale Law School, has today issued a press release that begins, "John Yoo, the author of legal memos that gave the go-ahead for government agents to use torture against terrorism suspects, was sued this morning in federal court in San Francisco. The lawsuit was brought by Jose Padilla, an American citizen seized from a civilian setting and interrogated for years in a military prison, and his mother, Estela Lebron. The lawsuit claims that Yoo, then a senior lawyer in the Justice Department, purported to provide legal justifications for torture. This is the first lawsuit against Yoo seeking to hold him accountable for the suffering unleashed by his 'Torture Memos.' Yoo's memos justified and set in motion the use of harsh and illegal interrogation methods not only abroad -- in places like Guantanamo Bay and the secret CIA 'black sites,' -- but also here in the United States."

I will link to a copy of the complaint initiating suit when it becomes available online.
Posted at 01:35 PM by Howard Bashman




Friday, January 4, 2008

"Judicial Misconduct, Disability Orders Will Be Posted Online": The Public Information Office of the U.S. Court of Appeals for the Ninth Circuit has issued a news release that begins, "Orders pertaining to the disposition of judicial misconduct and disability complaints against federal judges sitting in the Ninth Circuit will be publicly available via the Internet, beginning January 2008."

The decisions can be accessed via this link. The first and thus far only decision available as of yet addresses, among other things, whether the term "shyster" should be construed as anti-Semitic.

I applaud the Ninth Circuit for joining the U.S. Court of Appeals for the Seventh Circuit in making these decisions available online (the Seventh Circuit's decisions can be accessed at this link), and I hope that all of the other federal appellate courts will soon join these two in providing easy online access to their adjudications of judicial misconduct complaints.
Posted at 01:30 PM by Howard Bashman




Friday, January 4, 2008

"Petitioners' Brief in DC Guns Case Now Available": The District of Columbia has today filed its opening brief on the merits in the closely-watched Second Amendment case now pending before the U.S. Supreme Court. "SCOTUSblog" has posted the Brief for Petitioners at this link and the Joint Appendix at this link.

And at "The BLT: The Blog of Legal Times," Tony Mauro has a related post titled "Walter Dellinger on the case."
Posted at 01:22 PM by Howard Bashman




Friday, January 4, 2008

The perils of waiting till the last day to file a timely notice of appeal -- only to have the trial court's electronic filing computer "eat" your notice of appeal: Because it takes the federal government a long time to decide whether to appeal from the judgment in civil cases, the Federal Rules of Civil Procedure double the amount of time for filing a notice of appeal -- from thirty to sixty days -- in a civil case where the United States or its officer or agency is a party. And, to be fair, this extra time is available to any party, not just the federal government.

Today, the U.S. Court of Appeals for the Federal Circuit decided an appeal whose merits involve retaliatory tariffs imposed on toasted breads imported from Spain. The company doing the importing wanted to appeal from a ruling in favor of the United States, but its attorney waited until the sixtieth day to accomplish the filing of the company's notice of appeal using the electronic filing website maintained by the Court of International Trade. According to today's opinion:

After the trial court entered its order granting the government's motion to dismiss on October 10, 2006, Gilda had 60 days within which to file a notice of appeal. Gilda's counsel asserts that on December 11, 2006, the last day of that 60-day period, he logged on to the electronic filing website maintained by the Court of International Trade. He entered the information that Gilda was taking an appeal from the trial court's judgment and entered the required information to effect payment of the filing fee. However, he apparently logged off the website before reaching the final confirmation page. As a result, Gilda's notice of appeal was not recorded as having been filed on that day. The following day, when counsel realized he had not received the standard email notification that a filing had been received, counsel again logged on to the electronic filing website. Upon discovering that the notice of appeal had not been recorded as filed, counsel once again completed the electronic form to file the notice and made the required payment. This time, the filing was received and recorded as docketed by the Court of International Trade.
Unfortunately, however, because the notice of appeal was filed on the day after the deadline had expired, the appeal was previously dismissed as untimely by the Federal Circuit. Today's decision involves whether the CIT had the ability to consider Gilda's motion to extend the filing deadline for the notice of appeal after an untimely notice of appeal had been filed, or whether at that point exclusive jurisdiction over the case was lodged with the Federal Circuit.

Today's ruling holds that the CIT had jurisdiction to consider that motion and remands for that purpose. Today's ruling even goes so far as to opine that "if the facts attested to by Gilda's counsel are accurate, Gilda has made a strong showing of excusable neglect." I know of a few other federal appellate courts that might not be as forgiving under the circumstances.
Posted at 12:14 PM by Howard Bashman




Friday, January 4, 2008

"A raise that's hard to justify: Federal judges exhibit no link between performance and pay." Law Professor Scott Baker has this provocative op-ed today in The Los Angeles Times.

The op-ed's final paragraph states, "In a time of strained budgets, both Democrats and Republicans need to make hard choices on spending priorities. Federal judges earn six figures. Why choose to pay judges more -- as opposed to equally deserving, lesser-paid federal employees such as park rangers, members of the military or FBI agents -- if it ultimately makes no difference to how well the judges perform their jobs?"

Via SSRN, you can access Baker's law review article titled "Should We Pay Federal Circuit Judges More?" (abstract with links for download). According to its abstract, "the article finds that judicial pay is largely irrelevant to the performance of the circuit courts."
Posted at 08:15 AM by Howard Bashman




Friday, January 4, 2008

"2003 letter told CIA: Trashing tapes would harm image; Rep. Harman discloses her warning against disposing of interrogation videos." This article appears today in The Los Angeles Times, along with an editorial entitled "Handling the CIA tapes case: With a criminal investigation underway, Congress members should tread carefully."

And today's edition of USA Today contains both an editorial entitled "Give 'Bull' Durham a chance: Career prosecutor, not a special counsel, is best bet for swift probe" and an op-ed by John Conyers entitled "Appoint a special counsel: The administration can't be trusted to keep politics out of prosecutions."
Posted at 08:05 AM by Howard Bashman




Friday, January 4, 2008

"City Picks Head of Team for Supreme Court Case": The Washington Post today contains an article that begins, "Acting D.C. Attorney General Peter Nickles has selected former acting U.S. solicitor general Walter E. Dellinger to defend the District's handgun ban in a high-stakes Supreme Court case."

The newspaper also contains an editorial entitled "Mr. Dellinger at Bat: The city gets a top lawyer to argue its gun control case, but the process wasn't pretty."
Posted at 08:00 AM by Howard Bashman




Friday, January 4, 2008

"U.S. District Chief Judge Calls a Career Recess; Hogan Was in Thick of Post-9/11 Debates": This article appears today in The Washington Post.
Posted at 07:58 AM by Howard Bashman




Friday, January 4, 2008

"Prisoners' lethal injection case stirs debate; Kentucky appeal sparks unofficial moratorium on most common form of capital punishment": Joan Biskupic has this article today in USA Today.
Posted at 07:28 AM by Howard Bashman




Thursday, January 3, 2008

"CIA in 2003 Planned Destruction of Tapes; Congresswoman Argued Against the Move": This article will appear Friday in The Washington Post.
Posted at 11:40 PM by Howard Bashman




Thursday, January 3, 2008

Available online from law.com: An article reports that "11th Circuit Wrestles With Sentencing; Panels split in upholding sentences in child pornography and bribery cases that fell below sentencing guidelines."

And Amaris Elliott-Engel reports that "Sperm Donor Not Required to Pay Child Support." My earlier coverage appears at this link.
Posted at 10:35 PM by Howard Bashman




Thursday, January 3, 2008

"Clark loses appeal for new trial in Brinks robbery-murder case": The Journal News of Westchester, New York provides a news update that begins, "A federal appeals court today ruled against convicted murderer Judith Clark's bid for a new trial in the 1981 Brinks robbery-murder case, reversing a lower court ruling. The U.S. Court of Appeals held that Clark's right to have an attorney present during her 1983 trial on triple murder charges and robbery had not been violated. The panel ruled that Clark chose to defend herself and would not participate without disrupting the trial. The three-judge panel found her claims that she had been denied her Sixth Amendment right to counsel were without merit."

And The Associated Press reports "No new trial for getaway driver in Rockland Brink's robbery."

My earlier coverage of today's Second Circuit ruling appears at this link.
Posted at 10:30 PM by Howard Bashman




Thursday, January 3, 2008

"The Inside-Outsider: Can the CIA tapes investigation truly be an independent one?" Dahlia Lithwick has this jurisprudence essay online at Slate.
Posted at 07:55 PM by Howard Bashman




Thursday, January 3, 2008

"Death Penalty Walking": Time magazine has today posted to its web site an article that begins, "On Jan. 7, the supreme court will hear oral arguments in a pair of Kentucky lawsuits challenging the lethal three-drug cocktail used in most U.S. executions."
Posted at 07:54 PM by Howard Bashman




Thursday, January 3, 2008

"Lack of courtroom drama is boring judges to sleep": This article appears today in The Australian.
Posted at 07:52 PM by Howard Bashman




Thursday, January 3, 2008

"Two Important Supreme Court Anniversaries for 2008: The Cases of Trop v. Dulles, Concerning Citizenship, and Cooper v. Aaron, Concerning Civil Rights Enforcement." Edward Lazarus has this essay online today at FindLaw.
Posted at 07:50 PM by Howard Bashman




Thursday, January 3, 2008

"WA court: Signs on apartment doors protected speech." The Associated Press provides a report that begins, "A ban on apartment door displays in public housing projects is an unconstitutional violation of free speech, the state Supreme Court said Thursday. In a 5-4 ruling, the court agreed that the Seattle Housing Authority's restrictions on signs, flags, and other exterior door displays constituted an illegal government ban on speech."

My earlier coverage appears at this link.
Posted at 07:48 PM by Howard Bashman




Thursday, January 3, 2008

"Judges call for reprimand for high court justice Ziegler": The Wisconsin State Journal provides a news update that begins, "Saying it must not bow to 'public clamor,' a three-judge panel recommended Thursday that Wisconsin Supreme Court Justice Annette Ziegler receive a public reprimand -- the mildest discipline possible -- for presiding over cases as a circuit judge in which she had a conflict of interest."
Posted at 07:45 PM by Howard Bashman




Thursday, January 3, 2008

"The death penalty is wrong, always": Rachel Walsh has this op-ed in Friday's edition of The Age of Melbourne, Australia.
Posted at 07:37 PM by Howard Bashman




Thursday, January 3, 2008

"Son seeks estate of mother he killed": This article appears today in The Seattle Times. According to the article, "Hoge's claim to that money is now poised to set legal precedent for interpretation of Washington's sometimes-vague Slayer Statute: the law that prohibits most killers from profiting off their victims. While some states have decided whether people found not guilty by reason of insanity can inherit the estates of their victims, Washington has not."
Posted at 07:34 PM by Howard Bashman




Thursday, January 3, 2008

"Injured fan will be given hearing; High court looks at case involving LV baseball team": The Las Vegas Review-Journal today contains an article that begins, "The Nevada Supreme Court has decided that all of its members will consider the appeal of a Las Vegas 51s fan who was injured by a foul ball in 2002. A panel of three justices heard oral arguments in the case in October, but the court issued an order Friday announcing that it will consider the appeal 'en banc.'"

Via this page at the web site of the plaintiff's appellate attorney, you can access the appellate briefs and the oral argument audio from when the appeal was argued before the three-judge panel.
Posted at 03:55 PM by Howard Bashman




Thursday, January 3, 2008

"Since the placebo effect can be obtained from sugar pills, charging $200 for a device that is represented as a miracle cure but works no better than a dummy pill is a form of fraud." Defendants ordered to disgorge more than $16 million in profits obtained through selling the Q-Ray Ionized Bracelet as a miraculous cure for chronic pain failed to obtain any relief today when a unanimous three-judge panel of the U.S. Court of Appeals for the Seventh Circuit affirmed in all respects a federal district court's ruling in favor of the Federal Trade Commission. The FTC has made available various trial court documents in the case via this link.

You can access Chief Judge Frank H. Easterbrook's entertaining decision on behalf of a unanimous three-judge panel at this link.
Posted at 12:15 PM by Howard Bashman




Thursday, January 3, 2008

Does a chemist violate the Confrontation Clause when testifying that the substance seized from defendants was cocaine based on the output of infrared spectrometer and a gas chromatograph test results that another, non-testifying chemist produced? On behalf of a unanimous three-judge panel of the U.S. Court of Appeals for the Seventh Circuit, Chief Judge Frank H. Easterbrook today holds that "the instruments' readouts are not 'statements', so it does not matter whether they are 'testimonial.'"

The Seventh Circuit's ruling goes on to explain:

A physician may order a blood test for a patient and infer from the levels of sugar and insulin that the patient has diabetes. The physician's diagnosis is testimonial, but the lab's raw results are not, because data are not 'statements' in any useful sense. Nor is a machine a 'witness against' anyone. If the readings are 'statements' by a 'witness against' the defendants, then the machine must be the declarant. Yet how could one cross-examine a gas chromatograph? Producing spectrographs, ovens, and centrifuges in court would serve no one's interests. That is one reason why Rule 703 provides that the expert's source materials need not be introduced or even admissible in evidence. The vital questions--was the lab work done properly? what do the readings mean?--can be put to the expert on the stand. The background data need not be presented to the jury.
You can access the complete ruling at this link.
Posted at 12:05 PM by Howard Bashman




Thursday, January 3, 2008

Does a Seattle Housing Authority regulation prohibiting the posting of signs on the exterior of resident apartment doors violate the First Amendment rights of low income tenants? Today, by a vote of 5-4, the Supreme Court of the State of Washington answers "yes." Today's decision consists of a majority opinion and a dissenting opinion.
Posted at 11:27 AM by Howard Bashman




Thursday, January 3, 2008

"New Trial Ordered For Former Radical; Judge Rules Judith Clark Did Not Get Fair Trial In Brinks Robbery": So reported The Associated Press in an article published in late September 2006. The article begins, "A federal judge has ordered a new trial for a radical Weather Underground cell member serving 75 years in prison after she was convicted as a getaway driver in a 1981 armored-truck robbery in which a guard and two policemen were killed."

And The New York Times, on October 1, 2006, published an article headlined "New Trial for Woman in 1981 Brink's Case Is Reopening Old Wounds." The article begins, "It has been a quarter-century since a group of self-styled freedom fighters, including Judith A. Clark, carried out an armored-car robbery in Rockland County, N.Y."

Today, however, a unanimous three-judge panel of the U.S. Court of Appeals for the Second Circuit issued a 40-page ruling overturning the grant of a new trial in favor of Judith Clark.
Posted at 11:17 AM by Howard Bashman




Thursday, January 3, 2008

"Gag order raises questions in Liberty City terror retrial": The South Florida Sun-Sentinel today contains an article that begins, "A federal judge who declared a mistrial last month for six South Florida men charged with conspiring to support al-Qaida is taking aggressive steps to limit publicity related to the case, including silencing lawyers for a man the jury found not guilty." (Via "Southern District of Florida Blog.")

And a few weeks ago, Jay Weaver of The Miami Herald had an article headlined "Judge lays out rules for terror retrial."
Posted at 10:57 AM by Howard Bashman




Thursday, January 3, 2008

On today's broadcast of NPR's "Morning Edition": The broadcast contained audio segments entitled "Federal Prosecutor Named to CIA Probe" and "Updating the Foreign Intelligence Surveillance Act."
Posted at 10:01 AM by Howard Bashman




Thursday, January 3, 2008

"For judges, a justifiable raise: A bill to increase their wages and sever a link to Congress members deserves approval." This editorial appears today in The Los Angeles Times.
Posted at 08:40 AM by Howard Bashman




Thursday, January 3, 2008

"Criminal Probe on CIA Tapes Opened; Case Assigned to Career Prosecutor": The Washington Post contains this front page article today, along with an article headlined "Probe Leader Called A Tough Prosecutor; Durham Handled Corruption, Mafia Cases" and an editorial entitled "Mr. Mukasey's Move: The destruction of CIA interrogation tapes will get the criminal investigation it deserves."

The New York Times today contains a front page article headlined "Justice Dept. Sets Criminal Inquiry on C.I.A. Tapes" and an editorial entitled "The Right Move on the C.I.A. Tapes."

The Los Angeles Times reports that "Mukasey launches probe of CIA; A top mob-busting prosecutor will head the Justice Department's inquiry on the agency's destruction of videotapes of terrorism suspects' interrogations."

USA Today reports that "CIA to yield to criminal probe; Mukasey assigns outside prosecutor in destroyed-tapes case."

The Hartford Courant reports that "Leader Chosen In CIA Probe; Attorney General Names Prosecutor From Connecticut."

And The Washington Times reports that "Justice commences CIA videotape inquiry."
Posted at 08:38 AM by Howard Bashman




Thursday, January 3, 2008

"Attorney For D.C. in Gun Ban Case Fired; Counsel Was Set To Defend Law Before High Court": This article appears today in The Washington Post.

And The Washington Times reports today that "District fires lead lawyer in gun-ban case."
Posted at 08:24 AM by Howard Bashman




Thursday, January 3, 2008

"Reversed 1970 Adoption Decision Is Circulating In Blogosphere As Current": The blog "Religion Clause" has this post today.

As if to prove the point, just last night a reader sent me a link to this Time magazine article -- which currently ranks as the "most popular" article on the entire Time web site -- along with the message "Here's an interesting case the NJ Supreme Court agreed to hear." True enough -- although the Time article is from 1970 and, according to the "Religion Clause" post, New Jersey's highest court reversed the ruling in question in 1971.

The Technorati site compiles recent links to the Time article.
Posted at 08:15 AM by Howard Bashman




Thursday, January 3, 2008

"Accused judge's return to bench draws protest": This article appears today in The Houston Chronicle.

And The Associated Press reports that "Protesters greet return of judge accused of sexual harassment."
Posted at 07:28 AM by Howard Bashman



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