How Appealing

Thursday, May 24, 2007

Tenth Circuit refuses to grant defendant qualified immunity on summary judgment where Orthodox Jewish inmate sued to challenge prison’s failure to allow him to wear yarmulke and tallis while being transported for surgery at off-site hospital: You can access today’s ruling at this link.

Posted at 11:20 PM by Howard Bashman

“New questions after testimony by Gonzales aide; Wednesday’s appearance by former Justice official Monica Goodling has provided congressional Democrats with more subjects for possible investigation”: This article will appear Friday in The Christian Science Monitor.

Posted at 11:15 PM by Howard Bashman

“N.C. Judge OKs Witness Oaths Using Quran”: The Associated Press provides a report that begins, “Witnesses and jurors being sworn in at state courthouses can take their oath using any religious text, not just the Bible, a judge ruled Thursday.”

Posted at 5:03 PM by Howard Bashman

“Ruling tosses Amico verdicts; Court: Brothers were denied fair trial in $58.5M fraud case.” The Rochester Democrat & Chronicle today contains an article that begins, “Brothers Robert J. Amico and Richard N. Amico didn’t get a fair trial on charges of mortgage fraud because a federal judge improperly refused to take himself off the case, a federal appellate court said Wednesday. Ruling that U.S. District Judge Charles J. Siragusa should have recused himself because of a past business dealing with a key prosecution witness, the U.S. Second Circuit Court of Appeals reversed the Amicos’ convictions.”

You can access yesterday’s ruling of the U.S. Court of Appeals for the Second Circuit at this link.

Posted at 3:40 PM by Howard Bashman

Unanimous en banc U.S. Court of Appeals for the Third Circuit holds that federal civil rights action cannot be brought against school officials for violations of the Individuals with Disabilities Education Act: In so ruling, the en banc court overturned a Third Circuit ruling to the contrary from 1995. You can access today’s ruling at this link.

Posted at 3:15 PM by Howard Bashman

“Supreme Decider: Justice Anthony Kennedy has cast the deciding vote in all 12 of the Supreme Court’s 5-to-4 rulings.” This audio segment (RealPlayer required) featuring Law Professor Garrett Epps appeared on today’s broadcast of the public radio program “Here & Now.”

Posted at 2:23 PM by Howard Bashman

“Report: Judicial Corruption Is Worldwide.” The Associated Press provides a report that begins, “Widespread bribery of judges around the world and inappropriate political interference in legal systems are denying millions their right to a fair and impartial trial, a leading global anti-corruption group said Thursday.”

Posted at 2:00 PM by Howard Bashman

“The district court did not abuse its discretion in concluding that the stories in Curtin’s PDA in his possession at the time of his arrest contained relevant evidence pursuant to Rule 404(b) insofar as they related to sexual acts between adults and minors.” So holds the majority opinion that a fifteen-judge en banc panel of the U.S. Court of Appeals for the Ninth Circuit issued today. This case presents the fascinating question of when can lawful reading material be admitted in a criminal trial to prove that because the defendant possessed the reading material, he intended to commit the crime charged. The fifteen-judge panel divides 8.5-5.5 on that question, with one judge not expressing any opinion on the issue.

According to Circuit Judge Stephen S. Trott‘s majority opinion:

[O]ur holding here should not be interpreted as a holding (1) that the simple possession of any book or written materials generically similar to a charged crime is automatically admissible against the possessor defendant, or (2) that all pornography or obscenity in the possession of a defendant in these cases is admissible without undergoing the scrutiny required of Rules 401 and 403. In this respect, our holdings are properly limited to the facts of this case. For example, a book such as The Great Train Robbery would not necessarily be relevant and admissible in a run-of-the-mill theft case. On the other hand, if the crime charged happened to be theft of a money shipment from a train, then possession of the book might possibly be relevant — depending upon the precise facts and circumstances of the case. All we hold today is (1) that the information in the stories in Curtin’s possession in Las Vegas when he intended to contact Christy was relevant in this case, (2) that the First Amendment provides no bar to its use as evidence under these circumstances, and (3) that the district court properly exercised its discretion in so concluding. In this connection, we note that Curtin is not being prosecuted for possession of literature, but for crossing a state line with the intent to engage in sexual acts with a minor. We are confident in the ability of our trial judges to discern the difference between relevant and irrelevant written or graphic materials and that our holding will not inappropriately impinge upon or chill anyone’s legitimate First Amendment rights to possess books or other written materials.

Circuit Judge Andrew J. Kleinfeld issued what is labeled a concurring opinion, in which four other judges joined, in which he vociferously disagreed over whether the stories in question were relevant and admissible to show intent. Judge Kleinfeld writes in his separate opinion:

Rule 404(a) prohibits admitting evidence to prove “action in conformity” with a “trait of character.” Perverse sexual desire is a trait of character. Using a person’s perverse sexual fantasies to prove action in conformity therewith is exactly what subsection (a) of Rule 404 prohibits. The exceptions in subsection (b), “motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident,” are not a meaningless litany that deletes subsection (a). The stories admitted against Curtin were not a guide, fictional or otherwise, to arranging a tryst for sex with a minor. They shed no light on his motives, intentions, or plans. Good prosecution proves that the defendant committed the crime. Bad prosecution proves that the defendant is so repulsive he ought to be convicted whether he committed it or not. Rule 404(a) prevents this sort of bad prosecution. We held in Shymanovitz that “possession of lawful reading material is simply not the type of conduct contemplated by Rule 404(b),” and we should follow our precedent. A jury is entitled to decide the truth, without having the window it looks through covered with slime.

The original three-judge panel in the case had ruled that the reading material was not admissible, and Judge Trott had dissented from that ruling. My coverage of the original three-judge panel’s ruling appears at this link.

Posted at 12:54 PM by Howard Bashman

Second Circuit considers whether principles of sovereign immunity are violated when a state plaintiff voluntarily prosecutes a claim in state court and the action is removed from state to federal court pursuant to a statute that expressly authorizes removal: Perhaps even more interesting than that, however, is the question whether the state plaintiffs’ interlocutory appeal challenging the denial of sovereign immunity confers appellate jurisdiction on the Second Circuit to consider whether the bases for removing the case from state court to federal court — which the federal district court found proper in denying the States’ motion to remand — were in fact legally sound.

In today’s ruling, a unanimous three-judge Second Circuit panel holds that the States had waived their sovereign immunity but that the grounds for removing the case to federal court were invalid. The opinion concludes, “We hold that, if the criteria of a valid removal statute are met, sovereign immunity does not bar the removal of a case commenced by a state in its own courts. Because the requirements of the applicable removal statutes have not been met, we vacate the order of the district court and remand with directions to return these cases to the forums from which they were removed.” The caption of this case is In Re: Methyl Tertiary Butyl Ether (“MTBE”) Products Liability Litigation.

Posted at 12:24 PM by Howard Bashman

Second Circuit affirms convictions of Timothy J. Rigas and John J. Rigas on seventeen out of eighteen counts charging federal criminal offenses: You can access today’s ruling at this link. The Rigases are former high-ranking officials at Adelphia Communications Company.

In early press coverage, Bloomberg News reports that “Adelphia’s John Rigas, Son Timothy Lose Their Appeal.”

The Associated Press reports that “Rigas Conviction Upheld.”

And Reuters reports that “US court upholds bulk of verdict in Adelphia case.”

Posted at 11:55 AM by Howard Bashman

By a vote of 8-7, en banc U.S. Court of Appeals for the Sixth Circuit holds that criminal suspect in custody who invokes his right to a lawyer can re-initiate discussions with police through a family member even if a lawyer has not yet been provided: You can access today’s en banc ruling at this link.

The majority opinion begins:

Following the arrest of a suspect, the police advise him of his rights outlined in Miranda v. Arizona, 384 U.S. 436 (1966). The suspect asks for a lawyer. Under Edwards v. Arizona, 451 U.S. 477, 484-85 (1981), all questioning must then stop (a) until a lawyer has been provided, or (b) unless the suspect “himself” initiates a discussion. Later, police talk to the suspect’s mother (or a close friend, sibling, etc.), and, based on that conversation, they believe that the suspect now wants to talk with them without a lawyer. Are they permitted to approach the suspect and inquire whether he now wants to talk, based solely on the discussion with the mother? Or, rather, are they precluded from acting on that information because it was not communicated to them directly by the suspect? Today we join several of our sister circuits in holding that the police can make the limited inquiry without running afoul of Edwards.

And the lead dissenting opinion concludes:

In holding that custodial suspects may initiate communication with the police through a third party other than his attorney, the majority today repudiates the only interpretation of Edwards that is consistent with the Supreme Court’s custodial-interrogation jurisprudence. Applying its new rule, the majority infers, based on evidence that is not in the record, that Van Hook initiated communication with the police through his mother. Because I believe that the majority’s endorsement of third-party initiations impermissibly heightens the risk of constitutional error, and that such an error has occurred in this case, I respectfully dissent.

The original three-judge panel’s ruling was a unanimous decision in favor of the suspect.

Posted at 10:25 AM by Howard Bashman

“Tax, fraud trial of combative litigator opens”: The Los Angeles Times today contains an article that begins, “When he was arraigned last July, civil rights attorney Stephen Yagman wore shoes adorned with the skull and crossbones and turned the traditional ‘not guilty’ plea upside down by pleading ‘presumed innocent.’ But Wednesday, a more subdued Yagman, in a gray suit and tie, showed deference to the federal justice system he so often criticized as his trial for tax evasion and bankruptcy fraud began.”

Posted at 8:30 AM by Howard Bashman

“Former Justice aide cites political agenda; She tried to block Democratic hires”: Charlie Savage has this article today in The Boston Globe.

The Los Angeles Times reports today that “Ex-Gonzales aide says she may have ‘crossed the line’; Her testimony confirms politics were a factor in Justice Dept. personnel decisions, but the extent remains unclear.”

The Chicago Tribune reports that “Ex-Justice official admits she ‘crossed a line’; Goodling testifies before House panel on firing of U.S. attorneys.”

USA Today reports that “Ex-Gonzales aide details ‘uncomfortable’ discussion.”

The Milwaukee Journal Sentinel reports that “Gonzales reviewed story on firings, ex-aide says.”

The Washington Times reports that “Gonzales aide admits using politics.”

The Washington Post contains an editorial entitled “‘That Strikes at the Core’: Monica Goodling concedes that a political line was crossed in hiring at the Justice Department.” And Dana Milbank’s “Washington Sketch” column is headlined “Monica’s Own Monica Problem.”

The New York Times contains an editorial entitled “Witness for the Prosecutors.” The newspaper has also posted a complete transcript of yesterday’s testimony at this link.

And C-SPAN has posted online the video of yesterday’s hearing in two parts: morning session and afternoon session.

Posted at 8:22 AM by Howard Bashman

“Is it a Crime to Prescribe Medication in Cyberspace? A California Court Says It May Be, If the Prescriber Is Not Licensed by the Relevant State, and Has Not Met His Patient.” Anita Ramasastry has this essay online at FindLaw.

Posted at 6:45 AM by Howard Bashman