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Murder case moves forward with multiple motions

2015-09-12T11:12:00.004-04:00

Kauffman murder case moves forward with multiple motions filed by defense attorneys

By Sabra Stafford

If there is any certainty in the case against defense attorney Frank Carson and the seven other defendants arrested alongside him in connection to the death of 26-year-old Korey Kauffman, it is that it is generating mountains of legal documents.

Carson and the other defendants are due in court Monday for what is presumably a continued arraignment, but attorneys on both sides have filed numerous motions on a variety of matters, making it an uncertainty on whether or not any of the defendants will enter guilty or not guilty pleas come Monday.

The Stanislaus County District Attorney’s Office alleges Carson orchestrated a criminal conspiracy that ultimately led to the death of Kauffman on March 31, 2012, and that thereafter the defendants worked to hide the death from authorities and thwart any investigation. Carson, along with his wife Georgia DeFilippo, Pop N Cork owners Baljit Athwal and Daljit Atwal, former California Highway Patrol officer Walter Wells, and Turlock resident Robert Lee Woody are all charged with first-degree murder and conspiracy for Kauffman’s death. Carson also faces a charge of perjury. Christina DeFilippo and CHP officers Eduardo Quintanar and Scott McFarlane are facing charges of conspiracy and being accessories in the death and cover-up. Everyone but Woody was taken into custody on Aug. 14. Woody was arrested in March of 2014 and as of now his case is being tried separately.

The case is currently assigned to retired Contra Costa County Judge Barbara Zuniga and she issued a minute order on Wednesday stating that Monday’s hearing would only deal with a motion regarding shackling at the jail, Georgia DeFilippo’s continued bail review, and the arraignment. All other matters would be scheduled for later hearings.

However, there is an issue over whether Zuniga will continue as the judge assigned to the case. On Sept. 3, Defense Attorney Ryan Roth, who is now representing Christina DeFilippo, filed a peremptory challenge to having Zuniga as the presiding judge. The challenge states Zuniga is “prejudiced against defendant or interest of the party” and therefore should be removed from the case. The challenge was joined by Defense Attorney Percy Martinez, who is representing Carson.

On Sept. 4, Zuniga ordered the challenges stricken, but on that same day Defense Attorney Alonzo Gradford filed a declaration of support for the challenge on behalf of his client, Eduardo Quintanar. His challenge was struck down on Wednesday. On Thursday, the attorneys representing Carson and Christina DeFilippo filed peremptory challenges again against the judge and as of Friday afternoon there was no reply from the judge.

One matter that will likely be debated on Monday is whether or not the defendants must remain completely shackled during interviews with their attorneys at the Stanislaus County Jail and at the Stanislaus County Public Safety Facility.

All the defendants charged with murder are currently still in custody, though Georgia DeFilippo and Wells were given the opportunity to post bail, albeit at $10 million each. They are all classified as maximum security inmates and as such they have their hands and ankles shackled and attached to a waist shackle. In the interview room they have an additional shackle which chains them to the floor, according to their attorneys.

At a previous court hearing, the defense attorneys argued that such measures make it impossible for the defendants to aid in their own defense by the mere fact they can’t turn over page documents or sign their names without difficulty. After a brief hearing on the matter, Judge Peter Socrates Manoukian issued a temporary order allowing for the defendants to have one hand free from the shackles while meeting with their attorneys at the jail.

The order has yet to have been carried out, according to the defense attorneys. Martha Carlton-Magana has filed an order to show cause and hold Stanislaus County Sheriff Adam Christianson in contempt because he has “willfully and intentionally” ignored the court's order, according to her motion. She states she went to see her client Baljit Athwal at the jail and despite the order her client was kept shackled the entire time of the interview. She states it was at this time that she was informed the sheriff would not comply with the court’s order.

Carlton-Magana’s motion was joined by Martinez on behalf of Carson on Thursday.

In response to the order to show cause, the sheriff’s department, through their attorney, argued the order to have the defendants unshackled should be vacated because in part they were not given an ample opportunity to brief the court on the legal and safety issues that would arise from unshackling.

The motion states the shackling policy that is in place is “designed to foster safety of the inmates, employees, and visitors” and “should not be disturbed by the Court.”

The motion argues that even allowing one hand to be unshackled would increase the risk and threat of violence and leaves open a possibility an inmate could obtain an item that could be later used as a weapon against the custodial staff or other inmates.

The motion points to the court’s previous ruling that the defendants remain shackled in court out of safety concerns as reason why they should remain shackled at the jail.

The court did allow for one exception to the shackling rule in court, allowing Carson to have one hand free so he could take notes during the proceeding. Carson has indicated he plans on serving as his own co-counsel, a move the district attorney’s office hopes to prohibit.

The district attorney’s office filed a motion to bar Carson from serving as his own co-counsel on the grounds that there would be a conflict of interest. Carson has served as the attorney for Woody and two likely witnesses for the prosecution – Ronald Cooper and Patrick Hampton. The district attorney’s office argued in their motion that Carson would be “in a position to use these former clients’ confidential information for his own benefit in placing blame for the current offenses upon persons other than himself.”

The motion also states that while a person has a constitutional right to counsel of their choosing, they do not have a guarantee for a “hybrid form of representation.”

While the district attorney’s office is trying to ban Carson from serving as his own co-counsel, some of the defendants have filed their own motions to stop the district attorney’s office from prosecuting the case.

Defense attorney Tim Pori, representing Georgia DeFilippo, has filed a motion to have the district attorney’s office recused from the case on the grounds that the district attorney’s office is carrying a vendetta against Carson because he has won several high profile cases against them, has filed lawsuits against their investigators, accused investigators and an attorney of jury tampering, and publically called out the office for corruption during his bid to be elected district attorney.

“There is a serious conflict of interest between the Office of the District Attorney and Ms. DeFilippo, where the district attorney’s personal entanglement with her husband, prominent local attorney Frank Carson, makes it impossible that she will be treated fairly at any stage of this proceeding by any prosecutor employed by that Office,” Pori wrote in his motion.

The motion was joined by the attorneys representing Carson, Wells, Quintanar, and Baljit Athwal.

The district attorney’s office filed a response to Pori’s motion, arguing “nowhere has defense counsel provided evidence of actual antagonism on the part of the district attorney’s office.”

The response from the district attorney’s office states the defense’s argument boils down to the district attorney disliking Carson and as such the prosecution would not go forward with the case in an evenhanded matter. Ultimately, the district attorney’s office called the contentions put forth “without merit.”

Pori has filed two other motions in the case – one is to have the Ramey warrant, which was used to make the arrests, quashed, while the other seeks to have the bail reduced for his client.

In his motion to quash the arrest warrant, Pori refers to the 326-page document as a “rambling and incoherent affidavit” and as such “the facts that mention Ms. Georgia DeFilippo in the affidavit for her arrest do not implicate her in the murder, or in the aiding, abetting, or encouragement of murder.”

Pori argues the arrest warrant in regards to Georgia DeFilippo lacks any probable cause and therefore her arrest was unlawful. Carson’s attorney joined the motion on Thursday.

The district attorney’s office filed a response to Pori’s motion that states the affidavit would lead a “reasonable person” to conclude “Georgia DeFilippo was in on the conspiracy to ‘send a message’ of violence to would-be burglars of their property in Turlock,” and that she “actively furthered and aided the plan to catch the trespassers and turn them over to Frack Carson.”

The response from the district attorney’s office also makes the argument that even if the arrest warrant was quashed it would not make the criminal charges go away.

In a matter that could potential be heard Monday is a request to have Georgia DeFilippo’s bail reduced. Stephen Krimel, owner of Nevada’s two largest bail bond companies and a certified bail expert used in the Stanislaus County case against A.J. Pontillo, submitted a statement of support for Georgia DeFilippo, saying she was an ideal candidate for release on her own recognizance or on a $100,000 bail.

All the defendants except Woody are expected in court on Monday for the continued arraignment.

law requires cord blood from some teen moms

2013-08-02T17:49:00.002-04:00

New Miss. law requires cord blood from some teen moms

JACKSON, Miss. (AP) — If a girl younger than 16 gives birth and won't name the father, a new Mississippi law — likely the first of its kind in the country — says authorities must collect umbilical cord blood and run DNA tests to prove paternity as a step toward prosecuting statutory rape cases.

Supporters say the law is intended to chip away at Mississippi's teen pregnancy rate, which has long been one of the highest in the nation. But critics say that though the procedure is painless, it invades the medical privacy of the mother, father and baby. And questions abound: At roughly $1,000 a pop, who will pay for the DNA tests in the country's poorest state? Even after test results arrive, can prosecutors compel a potential father to submit his own DNA and possibly implicate himself in a crime? How long will the state keep the DNA on file?

Republican Gov. Phil Bryant says the DNA tests could lead to prosecution of grown men who have sex with underage girls.

"It is to stop children from being raped," said Bryant, who started his career as a deputy sheriff in the 1970s. "One of the things that go on in this state that's always haunted me when I was a law-enforcement officer is seeing the 14- and 15-year-old girl that is raped by the neighbor next door and down the street."

But Bear Atwood, legal director for the American Civil Liberties Union of Mississippi, said it's an invasion of privacy to collect cord blood without consent of the mother, father and baby. She also said that an underage girl who doesn't want to reveal the identity of her baby's father might skip prenatal care: "Will she decide not to have the baby in a hospital where she can have a safe, happy, healthy delivery?"

The law took effect July 1 but hasn't been used yet. Cord blood samples would have to be taken immediately after birth, and the state medical examiner is setting administrative rules for how the blood will be collected and stored. Megan Comlossy, health policy associate for the National Conference of State Legislatures, said she thinks Mississippi is the first state to enact a law authorizing the collection of blood from the umbilical cord — a painless procedure — to determine paternity.

Bryant's staff says the idea for the law came from public meetings conducted by the governor's teen pregnancy prevention task force — a group that focuses mostly on promoting abstinence.

Statistics put the state's teen pregnancy rate among the highest in the country. In 2011 — the most recent year for which statistics are available — there were 50.2 live births in Mississippi per 1,000 females ages 15-19, according to the Centers for Disease Control and Prevention. The nationwide rate was 31.3.

And more than half Mississippi's 82 counties reported at least one pregnancy by a 10- to 14-year-old girl in 2011, according to an Associated Press analysis of state statistics.

The governor's staff also said it heard disheartening information from Chancery Judge Janace Harvey Goree, whose district covers four counties in central Mississippi.

In an interview with the AP, Goree said she was disturbed to learn that several middle school girls had become pregnant in recent years in Holmes County, where she lives. In the poor, mostly rural county, middle school and high school students are on the same campus in some places.

"Most often, it is not middle school boys that are getting the middle school girls pregnant," Goree said.

As a chancery judge, Goree oversees child support cases.

"When you're seeking child support quite often in these situations, they don't identify the father and so quite often you don't know until way down the road that the person who is the father is a relative or the boyfriend … of someone else in the household," she said.

The governor said he worked with Attorney General Jim Hood, a Democrat, on the cord blood bill. The final version passed the Senate unanimously and the House 98-17. The issue of cost received little debate.

The bill's main sponsor, Republican state Rep. Andy Gipson, said the U.S. Supreme Court has ruled that DNA left on objects, such as saliva on a disposable cup, can be tested as evidence in a criminal case. He said he thinks umbilical cord blood fits that description.

"We're not taking blood from the baby," Gipson said. "We're not taking blood from the mother. We're taking blood that is discarded … literally discarded."

Gipson said he doesn't believe a man who fathers a child with an underage girl should have a reasonable expectation of privacy. "Most cases would involve a suspect who is pretty well identified," he said.

Democratic state Rep. Adrienne Wooten voted against the bill, saying it will mostly hurt poor women and could lead a prosecution "fishing expedition to find out who the father is."

"I think that that is totally outside the boundaries of what we as a Legislature should be doing," said Wooten, who, like Gipson, is an attorney. "We already have laws that deal with statutory rape."

The attorney general's office doesn't keep statistics on the number of cases that district attorneys pursue in Mississippi under the state's longstanding statuary rape law, spokeswoman Jan Schaefer said.

"A lot of DAs and judges don't want to take these cases on," Bryant said. "Oftentimes, the female doesn't want to press charges or the parents do not want to. So, we've just got to stop this."

The new law says it's reasonable to think a sex crime has been committed against a minor if the baby's mother won't identify the father or lists him as unknown, or if the identified father disputes paternity, is 21 or older, or is deceased. The law says health care workers and facilities cannot face civil or criminal penalties for collecting cord blood, and failure to collect is a misdemeanor offense. The law doesn't address whether the mother can refuse blood collection or what would happen to her if she does.

Goree said she supports using the law to prosecute older men but is concerned it could be on teenage boys.

"It's a different problem than a 13-year-old impregnated by a 21-year-old or a 30-year-old," she said. For the bigger age gap, Goree said, "I have no sympathy."

Copyright 2013 The Associated Press. All rights reserved. This material may not be published, broadcast, rewritten or redistributed.

Sexy résumé lands law grad fleeting fame if not job

2013-07-30T21:56:00.000-04:00

Sexy résumé lands law grad fleeting fame if not job

A lawyer desperate to get a job has made an impression on the legal community here, but not necessarily in a good way.

2009 Villanova Law School grad Brian Zulberti said he was about two Red Bulls into a late-night push to e-mail every lawyer he could find in the legal directory when he decided to add a photo.

Not a typical head-and-shoulders, suit-and-tie mug photo, it was a picture of Zulberti, 30, in a T-shirt with the sleeves rolled up, showing off his sculpted arms. Within a day of sending out his second round of e-mails, he became an Internet sensation.

"I was desperate to an extent," said Zulberti, adding he thought throwing in a little sex appeal might improve his chances.

This attracted the attention of the Above the Law Blog — apparently tipped off by an unimpressed lawyer that received it — which posted an item about Zulberti's letter and photo under the search term "Bad ideas."

"Seriously? Has this man no shame?" wrote Staci Zaretsky on the blog. "Who needs a résumé when you can send a selfie instead?"

The blog then went one step further and chastised Zulberti for pictures on his unsecured Facebook page, including one racy naked torso shot of Zulberti, his underwear dangerously low, holding a sign over his face that cried out for better grammar: "HIRE ME!!! no … as a Lawyer, … NOT A ESCORT… wait is it something I'm wearing."

"A picture is worth a thousand words, and here, all of those words seem to be: NO NO NO NO NO NO," Zaretsky wrote in the blog.

That started the explosion.

The blog post went viral on social media and Zulberti said he suddenly started getting a flood of friend requests on Facebook, less than 12 hours after he sent out his last batch of job-seeking e-mails. His voice mail and e-mail were soon swamped with messages.

Some were supportive, telling him not to give up hope. More called him a disgrace to Delaware, where he had just joined the bar. A number of friends told him to turn on his Facebook privacy settings.

That also was the advice of Delaware attorney and employment law expert Molly DiBianca.

"This is just wrong on so many levels," she said. Law firms want someone who is serious, professional and can show discretion. The images Zulberti posted of himself show "just the opposite."

"I'm sort of stunned by this picture. I can't stop looking at it," DiBianca said, noting that on top of everything there is a grammatical error in his "Hire Me" sign, which she said "looks like a 4-year-old wrote it."

Zulberti said soon after the blog mocked him, he started getting calls from media organizations and friends started sending him links to stories that had been posted about him from as far away as Croatia.

Among his Web hits:

• Gawker, "Lawyer Asks Hiring Firms to Google Him. Puts nude selfie on Facebook"

• MSN, "Law school grad bemoans job search, flaunts toned arms in cover letter"

• And even The Mail Online, the website of London's Daily Mail tabloid, "That's one way to bulk up your résumé!"

Some are getting the story wrong or at least misunderstanding it, Zulberti said.

"I never sent any pictures in my underwear to employers," he said. "I sent a picture in a muscle shirt. I will allow others to debate whether or not that was appropriate."

He said he already has talked to one Philadelphia radio show and has been invited to appear on The Steve Harvey Show.

The American Bar Association Journal website pointed to Zulberti's story as a cautionary tale both about the desperate job market, particularly for would-be lawyers, and the dangers of over-sharing on social media. Tuition and fees at Villanova Law School for the 2012-13 school year was $38,910, according to the Pennsylvania university's website.

But Zulberti said as far as he is concerned he sees no moral to the story.

Zulberti said he didn't intend to set off a social media firestorm. But now that it has arrived he is going to milk it, and enjoy it, for all it's worth.

"I went from being a guy with no job to a guy with no job on TV," he said with a laugh, sitting in his father's home where he lives.

In a YouTube response to Above the Law, Zulberti said while he initially felt the blog item was "rather insulting" and mean, the author also called him "a young stud."

"So it balances out," he said in the video, which has received nearly 10,000 views.

And through all the craziness, Zulberti has defiantly kept his Facebook page public and has continued to post provocative pictures of himself. Zulberti said to turn on privacy filters at this point would be to change who he is.

"I am the guy who takes pictures of himself in his underwear," he said, adding he thinks the images are funny and lawyers should be allowed a sense of humor.

"There is something to be said for being true to one's self in a job search," DiBianca said, but she added that people looking for a job have to be concerned about being a cultural fit with their employer. Reputation is an important part of being an lawyer. "And this does not come off professionally, to say the least.

"You have to keep client matters confidential," she said. "And he doesn't seem to understand the boundaries or lines of confidentiality very well."

Despite the largely negative online and media attention he's received, Zulberti said the job search is going well. He has received several invitations to submit his résumé, and one interview he had Friday went so well that he is hopeful it will lead to a job offer.

Zulberti said he recognizes that "the social media death hammer" ultimately may crush his legal dreams but hopes people judge him on his legal abilities and not Facebook pics of his pecs.

"All I need is one job," Zulberti said, even if 9,999 out of 10,000 potential employers don't like him. If he gets that job, he said he will have the last laugh.

"I feel I could be a very good attorney some day," he said.

Court overturns passport law implying Israeli sovereignty over Jerusalem

2013-07-24T09:36:00.001-04:00

Court overturns passport law implying Israeli sovereignty over Jerusalem

By Ann E. Marimow

A federal appeals court Tuesday found unconstitutional a law that gives thousands of Americans born in Jerusalem the option of listing Israel as their birthplace on U.S. passports.

In a separation-of-powers dispute centered on Middle East politics, the U.S. Court of Appeals for the District of Columbia Circuit found that the law passed by Congress in 2002 “impermissibly intrudes” on the powers of the president.

“While the president’s foreign affairs powers are not precisely defined, the courts have long recognized the president’s presumptive dominance in matters abroad,” Judge Karen LeCraft Henderson wrote in a 42-page opinion.

At issue is a provision of a 2002 foreign-relations act that challenged the U.S. policy of neutrality over the sovereignty of Jerusalem, a holy city claimed by both Israelis and Palestinians. The law allowed Jerusalem-born Americans to request that official documents list their birthplace as Israel.

Because of U.S. foreign policy regarding Jerusalem, the State Department — under Republican and Democratic administrations — has refused to follow Congress’s direction.

“Congress plainly intended to force the State Department to deviate from its decades-long position of neutrality on what nation or government, if any, is sovereign over Jerusalem,” Henderson wrote. She was joined by judges Judith W. Rogers and David S. Tatel, who also wrote a concurring opinion.

The case, which reached the Supreme Court in 2011, was brought by Ari and Naomi Zivotofsky, U.S. citizens whose son Menachem Binyamin was born in Jerusalem in 2002. The couple want their son’s passport to say he was born in Israel.

Zivotofsky attorney Nathan Lewin argued that the legislation “simply and neutrally” regulated the form and content of the passport.

Lewin said in a statement Tuesday that the “difficult case” calls for resolution by the Supreme Court. He described the State Department’s passport policy as an “isolated holdout, denying what is universally acknowledged, to the detriment of a right that a duly enacted law gives to American citizens.”

The Zivotofskys’ attorneys noted in court filings that the State Department has acknowledged inadvertently issuing passports with Israel as the birthplace to citizens born in Jerusalem and that there had been no harm done to U.S. foreign policy interests.

But the court said it found compelling the State Department’s position that the “reversal of United States policy” could “provoke uproar throughout the Arab and Muslim world and seriously damage our relations.”

The court’s opinion cited submissions from the department that argued the law “runs headlong into a carefully calibrated and long-standing executive branch policy of neutrality toward Jerusalem.”

Since Israel’s creation in 1948, Henderson wrote, U.S. presidents have “steadfastly declined to recognize any foreign nation’s sovereignty over that city.” The executive branch has made clear that the status of Jerusalem must be decided not unilaterally by the United States but by all the relevant parties.

In March 2012, the Supreme Court sent the case back to the D.C. Circuit, ruling in an 8 to 1 decision that the lower court could rule on the constitutionality of the law. The appeals court had earlier dismissed the case, writing that it posed a political question beyond the scope of the court’s authority.

Florida had first Stand Your Ground law, other states followed in 'rapid succession'

2013-07-18T22:00:00.003-04:00

By Elizabeth Chuck, Staff Writer, NBC News

In speaking out against "Stand Your Ground" self-defense laws this week, Attorney General Eric Holder criticized legislation that has been enacted in some two dozen states and has been backed by powerful gun lobbyists since the first such law was passed in Florida in 2005.

Stand Your Ground laws — sometimes referred to as "Shoot First" laws by detractors — change the legal definition of self-defense for citizens who feel they are being confronted with deadly force or imminent danger. They have been part of the public discussion around the George Zimmerman trial; although the legal team arguing on behalf of the man who was found not guilty of shooting Trayvon Martin did not ask for an immunity hearing under the law, the instructions given to the jury borrowed language from the statute.

Normally, a citizen has a duty to retreat when confronted with what they perceive to be deadly force. The Stand Your Ground doctrine mostly removes that, meaning citizens who feel threatened are no longer required to try to quell a situation first before having the right to use deadly force in self-defense.

With major support from the National Rifle Association under a Republican state legislature during Gov. Jeb Bush's administration, Florida became the first state to enact a Stand Your Ground law on Oct. 1, 2005. Since then, Stand Your Ground law has been invoked in more than 200 cases in Florida where charges were dismissed or defendants were acquitted or not charged at all, according to The Tampa Bay Times.

There are three parts to Florida's Stand Your Ground law. It states that a person is presumed to have reasonable fear of imminent death or great bodily harm when using defensive force if an intruder has broken into his or her home or vehicle and is justified in using force; it states that a person does not have a duty to retreat if he or she believes death or bodily harm is imminent; and it provides immunity from criminal prosecution and civil action for justifiable use of force.

What made it such radical legislation was the automatic presumption of reasonable fear. Inside Florida homes and cars, it overrode previous self-defense laws that required proof that an individual felt a reasonable enough level of fear to use self-defense.

Florida as a model

In other states, "Stand Your Ground" laws are strikingly similar to Florida's.

"The biggest difference in any of the laws are where they have the right to defend themselves. Some require that you be in your home or your car. Some have expanded that to say you can just be on the street corner," said Ryan Sibley, a writer and researcher at the non-profit think tank Sunlight Foundation.

Here are several other notable Stand Your Ground differences by state, as well as some court cases where it's been applied:

Texas: A person can only use Stand Your Ground if they have the right to be present at the location where the deadly force is used, and has not provoked the person against whom the deadly forced is used.

In November 2007, Joe Horn, 61, of Pasadena, Texas, saw two burglars break into his neighbors' home, according to The New York Times. He grabbed his shotgun and called 911, offering to the 911 operator, "I've got a shotgun; do you want me to stop them?" Despite the emergency operator telling him no, he allegedly went over and killed the two men. Horn claimed self-defense and wasnot indicted when he went before a grand jury.

North Carolina: Exceptions to the use of deadly force as listed in North Carolina's law are against police officers or law enforcement, bail bondsmen and landlords. Stand Your Ground passed in North Carolina in 2011.

Kansas: Kansas' Stand Your Ground law specifies the person can't be engaged in illegal activity while defending him or herself. The law, enacted in 2006, has rarely been applied in Kansas, The Wichita Eagle notes.

Louisiana: Byron Thomas, 21, of Lafourche Parish, La., was cleared by a grand jury in the death of 15-year-old Jamonta Miles in February 2012 because he claimed he acted in self-defense when he shot an SUV the boy was in. The two may have been in rival gangs, according to Louisiana's HoumaToday.com; Thomas fired on the vehicle after getting into an argument while trying to buy marijuana. Louisiana's Stand Your Ground law passed in 2006.

Arizona: In April 2012, Cordell Jude, 22, was driving in Phoenix when Daniel Adkins Jr. walked in front of him with his dog. "Watch it!" Jude yelled to Adkins, who was mentally disabled, according to USA TODAY. Adkins then swung what looked like a pipe in the air and Jude shot and killed him — the pipe-like object turned out to just be a dog leash. Jude claimed self-defense; he remained free for three months, but now faces second-degree murder charges and is set to go to trial next month, according to the Maricopa County Sheriff's office. The Arizona Stand Your Ground law passed in 2010.

Oklahoma: In 2010, Carl England of Tulsa was shot in the chest and killed after attacking another man he accused of breaking into his daughter's apartment. His killer, Pernell Jefferson, 37, was not charged with the murder, due to Stand Your Ground, but is serving a six-year sentence on a weapons charge, according to The Associated Press. Oklahoma enacted its Stand Your Ground law, which closely mirrors Florida's, in 2006.

Georgia: John McNeil hired Brian Epp, a construction company owner, to build a new house for him in Cobb County, Ga., in 2005. In December 2005, McNeil's son got into an argument in the backyard with Epp, who allegedly pulled out a pocketknife. Upon hearing this, McNeil rushed home and fired a warning shot with his gun, reported Salon.com. But Epp charged toward him, allegedly reaching for his pocket knife again. McNeil fired another shot, this time hitting Epp in the head and killing him. In 2006, despite the state passing a Stand Your Ground law earlier in the year, McNeil was sentenced to life in prison, which was later reduced after he pleaded guilty to the lesser charge of manslaughter.

The laws' origins

Many of the 20-plus states that have this type of legislation passed it quickly after Florida did.

"It happened very, very quickly, in rapid succession," said Jeannie Suk, a Harvard law professor who has written extensively about self-defense and criminal law. "The National Rifle Association at the time stated its intention to do it in Florida and then use it as a jumping-off point for a sweeping change in self-defense law across the country. They were not at all shy or apologetic about that. This was the goal."

The laws, while less than a decade old, are steeped in centuries-old principles.

"There's a lot of misperception right now going on about these Stand Your Ground laws, as if they sprung out of nowhere, with no precedence or no history to them," Suk said.

In fact, they have their foundation in the Castle Doctrine — a 17th century English common law that was eventually brought to all states in the U.S. — which says that if an intruder breaks into an individual's home, the individual is not obligated to try to retreat before defending him or herself with force.

Everywhere else, according to the Castle Doctrine, individuals can use deadly force to defend themselves only after retreating as far as possible — "the phrase was to the wall at one's back," said Suk — with the idea being that in a public place in the 1600s, the king and his men were supposed to keep the peace while all other people stepped aside. But at home, or inside the castle, deadly force without retreating first was allowed.

"In no states were you obligated to try to retreat from your home if attacked in your home," Suk said. "Both in England and when it was transplanted to the U.S., every single state said you didn't have to retreat from an intruder."

But, she added, that doesn't mean one is excused from the requirements of the regular self-defense law, which generally requires citizens show they're in reasonable fear of serious bodily injury or death that is imminent.

Sunshine State Shakeup: Is Florida's Drug Law Unconstitutional?

2011-08-22T10:58:00.000-04:00

Sunshine State Shakeup: Is Florida's Drug Law Unconstitutional?

By Ashby Jones

You might think that, by now, the constitutionality of all 50 states’ drug laws would have long-been settled. After all, the drug laws have mostly been on the books for several decades, and there’s really never been a shortage of people who would have been well-served by seeing a drug law shot down.

But down in Florida, there’ve been a spate of challenges to one of the state’s key drug laws. And at least two of them have been successful. The result, as I write in Monday’s WSJ: confusion among lawyers and possibly thousands of convictions ultimately being overturned.

To win a conviction under the drug laws of most states, a prosecutor has to convince a jury that the defendant knew he owned or sold an illicit substance. But in 2002, Florida became the only state in the country to do away with the “knowledge requirement” in its main drug law.

A federal judge in Orlando was the first to strike a blow to the law late last month, ruling that a central part of Florida’s Drug Abuse Prevention and Control law violated the 14th Amendment’s Due Process Clause.

Then, last week, a state judge in Miami cited Judge Scriven’s opinion in overturning the drug-distribution convictions of 39 defendants. Judge Milton Hirsch acknowledged that the “overwhelming majority” of the 39 defendants “may have known perfectly well that their acts of possession or delivery were contrary to law.” Nevertheless, he shot down the law on grounds that it “reaches beyond those who willfully do wrong. . . and includes within its wingspan those who meant no wrong.”

The office of the Florida Attorney General, Pam Bondi, has filed notices of appeals in both cases. “This decision conflicts with binding state court precedent upholding Florida’s drug law,” said Bondi, shortly after Judge Hirsch issued his ruling on Wednesday. “This decision is flawed and it unduly hinders prosecutors’ efforts to keep criminals off our streets.”

The issue will likely be settled by a higher court—the Florida Supreme Court, the 11th U.S. Circuit Court of Appeals or, possibly, the U.S. Supreme Court. It is unlikely that Florida will see a mass exodus of its prison population until then.

But if the key part of the law is ultimately struck down, “it could get pretty chaotic,” said James Felman, the lawyer for Mackle Vincent Shelton, whose conviction Judge Scriven overturned.

According to the Florida Department of Corrections, nearly 94,000 people have been sent to state prisons for drug crimes since the start of 2002. Jo Ellyn Rackleff, a department spokeswoman, said most of them were convicted under the Drug Abuse Prevention and Control law.

American Bar Association urges Congress to reject birthright law

2011-08-09T14:30:00.000-04:00

American Bar Association urges Congress to reject birthright law

TORONTO — The American Bar Association passed a resolution Tuesday urging the U.S. Congress to reject any changes to the Constitution that would eliminate automatic citizenship for anyone born in the United States.

About 400 members of the attorneys association, which is holding its annual meeting in Toronto, passed the resolution in a voice vote.

Some Republican lawmakers have called for legislation to repeal birthright citizenship and have proposed a constitutional amendment.

Outgoing American Bar Association President Stephen Zack said in an interview that racism is underlying the call to change the constitution. Zack, the first ABA president of Hispanic origin, said it was an important statement by the American Bar Association that the U.S. Constitution must be respected.

“This is something that should be avoided at all costs,” Zack said. “Certain issues are not really about what the words are about, but what the underlying concerns are about.”

The ABA debated the issue last week ahead of Tuesday’s vote.

John Eastman, a conservative law professor at Chapman University in Orange, California, argued that it’s an open question whether the citizenship clause of the Fourteenth Amendment allows for citizenship for anyone born in the U.S. and said it’s time for the U.S. Congress to clarify the issue.

Eastman challenged a claim before the Supreme Court that Yaser Esam Hamdi, who was seized by U.S. troops on the Afghanistan battlefield in 2001, was a citizen because he was born in Louisiana while his Saudi parents were in the U.S. on a temporary work visa.

Eastman called it odd that a man who had little connection to the U.S. could be considered a U.S. citizen. The Supreme Court ruled in 2004 that Hamdi had the right to use U.S. courts to challenge his detention.

Thomas Saenz, president of the Mexican American Legal Defense and Educational Fund, which is based in Los Angeles, said the Latino community is most at issue in discussions about citizenship by birth and said it’s hard not to see that the reinvigorated debate is really about opposition to demographic changes.

Saenz said the issue is closely tied to the efforts by some states, such as Arizona, to limit immigration.

Overriding a Key Education Law

2011-08-08T10:57:00.000-04:00

Overriding a Key Education Law

Secretary of Education Arne Duncan has announced that he will unilaterally override the centerpiece requirement of the No Child Left Behind school accountability law, that 100 percent of students be proficient in math and reading by 2014.

Mr. Duncan told reporters that he was acting because Congress had failed to rewrite the Bush-era law, which he called a “slow-motion train wreck.” He is waiving the law’s proficiency requirements for states that have adopted their own testing and accountability programs and are making other strides toward better schools, he said.

The administration’s plan amounts to the most sweeping use of executive authority to rewrite federal education law since Washington expanded its involvement in education in the 1960s.

Conservatives said it could inflame relations with Republicans in the House who want to reduce, not expand, the federal footprint in education. But Mr. Duncan and White House officials described their plan as offering crucial relief to state and local educators as the No Child law, which President George W. Bush signed in 2002, comes into increasing conflict with more recent efforts to raise academic standards.

The law made its focus the use of standardized test scores in schools, particularly those serving minority students.

“I can’t overemphasize how loud the outcry is for us to do something right now,” Mr. Duncan told reporters on Friday in a conference call that he said could not be reported until midnight Sunday.

Melody Barnes, director of President Obama’s White House Domestic Policy Council, who joined Mr. Duncan in the announcement, said that all states would be encouraged to apply for waivers from the law’s accountability provisions, but that only states the administration believed were carrying out ambitious school improvement initiatives would get them.

“This is not a pass on accountability,” Ms. Barnes said. “There will be a high bar for states seeking flexibility within the law.”

Under the current law, every school is given the equivalent of a pass-fail report card each year, an evaluation that administration officials say fails to differentiate among chaotic schools in chronic failure, schools that are helping low-scoring students improve, and high-performing suburban schools that nonetheless appear to be neglecting some low-scoring students.

About 38,000 of the nation’s 100,000 public schools fell short of their test-score targets under the federal law last year, and Mr. Duncan has predicted that number would rise to 80,000 this year.

Skeptics said Mr. Duncan’s predictions were exaggerated, but a huge number of schools are falling short under No Child’s school rating system. Eighty-nine percent of Florida’s public schools, for instance, missed federal testing targets, although 58 percent of Florida schools earned an A under the state’s own well-regarded grading system.

When Mr. Duncan sketched an outline of the administration’s waiver plan in June, Representative John Kline, the Minnesota Republican who is chairman of the House education committee, demanded that Mr. Duncan show by what legal authority he would override the federal law. Mr. Duncan responded by citing provisions of the No Child law itself that give the education secretary broad waiver powers.

On Friday, Mr. Kline said in a statement, “I remain concerned that temporary measures instituted by the department, such as conditional waivers, could undermine” efforts by Congress to rewrite the law.

Mr. Kline’s committee has completed three overhaul bills focusing on elimination of federal programs, financial flexibility for states, and charter schools. But the committee has not yet produced bills rewriting the law’s crucial school accountability and teacher effectiveness provisions.

Senator Tom Harkin, the Iowa Democrat who is chairman the Senate education committee, said he understood why Mr. Duncan was pursuing the waiver plan, since “it is undeniable that this Congress faces real challenges reaching bipartisan, bicameral agreement on anything.”The No Child Left Behind law is the latest version of the Elementary and Secondary Education Act, a 1965 law that over the years has become the main federal law on public schools. It has been rewritten in ways that have allowed nearly every president since its original architect, Lyndon B. Johnson, to put his policy stamp on it, usually in the first term. That has eluded President Obama so far, despite his campaign pledges to fix the law’s flaws.

In Friday’s conference call, Mr. Duncan and Ms. Barnes said theDepartment of Education would issue guidelines next month inviting states to apply for the waivers. For a waiver to be approved, they said, states would need to show that they were adopting higher standards under which high school students were “college- and career-ready” at graduation, were working to improve teacher effectiveness and evaluation systems based on student test scores and other measures, were overhauling the lowest-performing schools, and were adopting locally designed school accountability systems to replace No Child’s pass-fail system.

Those requirements match the criteria the administration used last year in picking winning states in its two-stage Race to the Top grant competition. Ms. Barnes said states would not be competing against one another with their waiver applications. But the similarity irked critics.

“It sounds like they’re trying to do a backdoor Round 3 of Race to the Top, and that’s astonishing,” said Frederick Hess of the American Enterprise Institute. He called Mr. Duncan’s plan “a dramatically broad reading of executive authority.”

The plan appears likely to gain broad support from state education officials, however. More than a dozen states have already asked the department for changes to their No Child school accountability plans, or are about to do so, said Gene Wilhoit, executive director of the Council of Chief State School Officers. “Many states feel that we need major changes in the law, because it’s identifying such an outlandish number of schools that it’s losing credibility,” he said.

The law allowed states to adopt local academic standards and determine their own passing scores on tests after it took effect in 2002. The requirement that 100 percent of students be proficient in math and reading by 2014 encouraged lower standards, which make it easier for more students to score as proficient. Since early 2010, however, more than 40 states have agreed to adopt higher standards, and the 2014 deadline is complicating their efforts, Mr. Duncan said.

In Tennessee, for instance, 91 percent of students scored at or above the proficient level in math under the state’s old standards, but under new, tougher standards adopted recently, the proportion plummeted to 34 percent.

“The current law serves as a disincentive to higher standards, rather than as an incentive,” Mr. Duncan said.

New York State Bar Prez Says Law Students Need Better Training

2011-08-05T11:30:00.000-04:00

New York State Bar Prez Says Law Students Need Better Training

The debate about whether law schools should focus more on preparing their charges to actually practice law, rather than to merely think like lawyers, continues to rage.

At an American Bar Association meeting in Toronto, the New York State Bar Associationpresented the ABA with a resolution, urging the ABA to emphasize the importance of teaching practice skills to law students, according to this report in the New York Law Journal. (HT: ABA Journal.)

The New York bar is asking the national bar to evaluate its legal education standards with a view toward “enhancing clinical work and supervised activities such as meeting with clients inside and outside the clinical setting and in court,” according to the NYLJ.

“Legal education should have more of an emphasis on making sure graduates are ready to practice law,” New York State Bar President Vincent E. Doyle III told the NYLJ. “It is something that has been de-emphasized, and it shows. Our research and our own experience show that graduates are less prepared to practice law.”

Here’s a WSJ report last month by our own Patrick Lee about how some law schools are answering the call to emphasize the practical over the theoretical.

Richard A. Matasar, dean and president of New York Law School, agrees with the view that graduates need to be more practice ready, the New York Law Journal reports.

“There is going to be a push toward more practice readiness at most law schools,” he said. “It is driven by the market. We need to send our graduates out in a way that makes them more effective, and the schools recognize that.”

ACLU might sue over law limiting teachers' Facebook use

2011-08-04T14:01:00.000-04:00

ACLU might sue over law limiting teachers' Facebook use
By Brendan Sasso

The American Civil Liberties Union of Eastern Missouri is considering suing the state over a new law that prohibits teachers from sending private message to students on social-networking sites such as Facebook.

"I do think there are First Amendment issues with the law," said Tony Rothert, legal director for the ACLU of Eastern Missouri.The Amy Hestir Student Protection Act, signed into law last month by Gov. Jay Nixon (D), bans teachers from establishing an Internet site "which allows exclusive access with a current or former student."

GOP State Sen. Jane Cunningham, the author of the law, said it is designed to prevent teachers from having inappropriate contact with students. She also noted the law defines a "former student" as a person who is 18 years of age or younger, who has not graduated.

Cunningham told The Hill she wants to encourage teachers to help students outside of the classroom, but an epidemic of sexual misconduct by teachers in Missouri and around the country convinced her of the need to keep teacher-student communications public.

According to Cunningham, many inappropriate relationships between teachers and students begin with private electronic communications.

She said the law is not intended to prevent teachers from establishing social-media profiles or even from being "friends" with students on social sites — only from sending them private messages.

"A good teacher who is really working with a student in an appropriate way, they are going to welcome parents and department heads being able to see the good work they're doing," Cunningham said.

Rothert of the ACLU said the way the law is written, it might prevent teachers from even establishing Facebook accounts.

"The law is much broader than what it's supposed to do," Rothert said.

Even if the law is rewritten to ban only private communications between students and teachers, Rothert said he would still be concerned that it violates the First Amendment's free-speech protections.

"I think the people who wrote the law don’t understand how Facebook works, or more broadly, how the Internet works," Rothert said.

According to Rothert, any measure that curbs free speech must be narrowly tailored to address a problem.

"It's fairly easy to conceive of ways that this could be much more narrow," he said.

Facebook is also investigating the legality of the law.

"Every day, there are more stories of innovative teachers using social networks as a valuable educational tool — from answering simple homework questions online to helping identify bullying," a Facebook spokesman said. "It is imperative that this law does not limit schools' and teachers' ability to use technology in this way to educate Missouri's children, and we are working with the education and legal communities to investigate."

The law requires school districts to create rules for the use of other "electronic media" that are at as least as stringent as the rules for social-networking sites.

Rothert said this provision might ban emails or text messages between students and teachers.

Rothert said he hopes to convince the legislature to revise the law or to work with school districts to implement the requirements in ways that do not infringe upon the First Amendment rights of teachers and students.

But if those efforts fail, Rothert said, the ACLU is prepared to go to court over the issue.

Abortion foes target Romney's law

2011-08-03T11:33:00.000-04:00

Abortion foes target Romney's law
Group aims to undo universal health care

By Michael Levenson

Mitt Romney, who has struggled to persuade some social conservatives that he is a committed opponent of abortion rights, could face a new headache from his home state’s leading antiabortion group, which is launching a ballot campaign to repeal the universal health care law that he signed in 2006.

Anne Fox, president of Massachusetts Citizens for Life, said yesterday that repealing the law is a “prolife’’ issue because the law could lead to what she said would be the rationing of prenatal care and other medical services.

“The way it’s constituted, they’re going to have to deny care,’’ Fox, standing with two members of the Citizens for Life board, told reporters outside the State House. “It could be care to the unborn, care to pregnant women, care to someone with disabilities, but they’re going to be denying care, and that’s the prolife concern.’’

If she succeeds in placing the question on the 2012 ballot, her campaign could complicate Romney’s efforts to persuade Republican primary voters that he is solidly aligned with activists who oppose abortion. Romney ran as an abortion rights supporter during his 1994 US Senate campaign and 2002 campaign for Massachusetts governor. But he changed positions in 2004, as he geared up for his 2008 presidential campaign.

Romney has walked a fine line on the health care issue, as well, defending his law as a state solution to a state problem, while calling for a repeal of the national law, which he has denounced as a power grab.

It is highly unusual for a group that opposes abortion rights to challenge a Republican presidential candidate who embraces its cause. But some abortion opponents have questioned the sincerity of Romney’s beliefs.

During the 2008 Republican primary, for example, antiabortion activists protested outside several of his campaign appearances, while another candidate, Senator Sam Brownback of Kansas attacked Romney’s shift on abortion.

Fox said her group is not trying to undercut Romney’s presidential campaign, merely one of the laws he signed.

“I have no problem with Mitt Romney,’’ she said. “If he is the nominee, we will back him to the hilt.’’

Even so, Citizens for Life, which is the state affiliate of the National Right to Life Committee, had a statement on its website yesterday, blasting the state law in much starker terms.

“RomneyCare covers abortions, and the mandate forces citizens to participate in a system which strives to make the murder of unborn children as cheap as $50,’’ the statement said. “There are, however, many more ways which this requirement offends against both the sanctity of human life, principles of ethical medicine and simple common sense.’’

Yesterday, Citizens for Life removed the statement from its website and immediately began distancing itself from that line of attack, after being contacted by Peter Flaherty, Romney’s liaison to social conservatives. Fox blamed the statement on a staff member at Citizens for Life, and said it did not reflect the group’s views.

“I was extremely upset,’’ she said. “He has removed it. I thought, ‘Where did this come from, because it had my name on it, and I never wrote it.’ ’’

The ballot question could repeal the mandate that requires all residents to have health insurance. That mandate is also the backbone of the national health care law that President Obama signed last year. Fox’s group opposed that law, as well, by running Internet and radio ads.

She said her organization is beginning to gather signatures and will launch a website, www.repeal-romneycare.com, in hope of placing the issue on the ballot in November 2012, when Romney hopes to be the Republican presidential nominee. To do so, Citizens for Life will need to gather 68,911 signatures by November and another 11,485 signatures by June.

Fox declined to discuss her budget, but said she would seek support from the group’s 200,000 members.

Romney’s spokeswoman, Andrea Saul, released a statement about the ballot campaign, saying: “Governor Romney shares with [Massachusetts] Citizens for Life a commitment to protecting human life. However, he signed the health care bill into law because he believes it was right for Massachusetts, and he continues to support it.’’

The referendum, even if it reaches the ballot, could face steep odds. In June, a poll by the Harvard School of Public Health and the Globe found that 63 percent of Massachusetts residents support the law, up 10 percentage points in the past two years. Only 21 percent said they were against the law. The state law has also had broad support from the state’s major business, labor, and advocacy organizations.

“We don’t see it having much chance of success,’’ said Brian Rosman, research director of Health Care for All, a group that supports universal health coverage. He said that, contrary to Fox’s assertion, the law has not rationed care. He pointed out that about 400,000 more people have obtained health insurance since the law was signed.

“Health care is rationed in the US by income, and what health reform did in Massachusetts is provide low-income people an opportunity to get affordable coverage, and the results have been dramatic in terms of improved health, more access to preventive care, and more people able to get health care services,’’ he said. “The public is benefiting dramatically.’’

Is It Time to Take Away My Right to Vote... For Judicial Candidates?

2011-08-02T09:10:00.000-04:00

Is It Time to Take Away My Right to Vote... For Judicial Candidates?
By Jessica Levinson

According to an old adage, no one is above the law. But does that include a sitting judge? Apparently so. The fate of California Superior Court Judge Harvey Silberman is now in the hands of a Southern California jury.

Silberman is accused of trying to convince his former opponent, Deputy District Attorney Serena Murillo, to drop out of a 2008 judicial election for the seat Silberman ultimately won. Silberman is charged with offering -- through intermediaries -- to pay Murrillo's filing fees (totaling less than $1,800) if she agreed to drop out of the race. That move would have allowed Silberman to run unopposed. For this purported conduct, Silberman was charged with an elections code violation. The code prohibits the payment or solicitation of money in an effort to deter another from running for office.

Prosecutors also accused Silberman's consultants -- without Silberman's knowledge -- of later telling Murillo that Silberman would drop out of the race if Murillo would pay more than $80,000 to cover the cost of Silberman's ballot statement. Murillo, instead of accepting either alleged offer, went to the district attorney's public integrity division.

The sordid Silberman affair points to a larger question: should judges be elected? On the federal level, district court judges, court of appeals judges and Supreme Court justices are nominated by the president and confirmed by the U.S. Senate. U.S. bankruptcy judges are appointed to 14-year terms by U.S. court of appeals judges. U.S. magistrate judges are appointed to eight-year terms by district court judges.

Things are often different on the state level, where the voters directly weigh in on the composition of the state judiciary. In my home state of California, for instance, trial judges are elected, or appointed by the governor if there is a vacancy, to six-year terms. Every six years superior court judges stand for retention elections and may be challenged by otherwise qualified California attorneys. Justices of the California Supreme Court and Courts of Appeal are appointed to 12-year terms by the governor and confirmed by the California Commission on Judicial Appointments. Justices stand for retention elections at the end of their 12-year terms.

Does being a good jurist have anything to do with being a good judicial candidate? Would moving to a system where both trial and appellate court judges are appointed and confirmed, rather than elected, create a judicial branch with better-qualified, less political judges?

Since leaving the bench, former U.S. Supreme Court Justice Sandra Day O'Connor has advocated for the abolition of judicial elections. As Justice O'Connor once stated, "Judicial elections are just difficult to justify in a constitutional democracy in which even the majority is bound by the law's restraints."

Can we count on judges to be truly independent, to make decisions only based only on the law, and not based on politics and/or what is popular, if they must stand before the public every few years in order to keep their jobs?

Judicial elections may be increasingly problematic as the U.S. Supreme Court continues to dismantle campaign finance reforms. Judicial elections are therefore ever more susceptible to the influence of large inflows of money. Will it be any surprise when special interests pour large sums of money into judicial races?

The Silberman matter sheds light on troubling questions concerning the propriety of judicial elections. One thing that does seem clear is that voters will be loath to give up their ability to directly determine the composition of the judicial branch.

Florida Gov. Rick Scott Hosts Anti-Abortion Law Celebration

2011-08-01T11:45:00.000-04:00

Florida Gov. Rick Scott Hosts Anti-Abortion Law Celebration

Gov. Rick Scott on Saturday hosted a celebration of the four new laws intended to limit access to abortion. Dozens of pro-life activists gathered at the manion for the event, along with several of the bill's sponsors and supporters , including representatives Matt Gaetz, Rachel Burgin, Dennis Baxley, Larry Ahern, Elizabeth Porter, Kelli Stargel and Keith Perry.

Asked why he held the bill-signing ceremony a month after the laws went into effect, Scott said: "A lot of people put a lot of effort into these things. I think they want to have an event to memorialize it. For these bills, a lot of these people have worked on these bills for years and years, and it's a way for them to celebrate the accomplishments."

Lawmakers passed five abortion-related bills in the 2011 session. One requires women to receive an ultrasound before undergoing an abortion and be offered the opportunity to have it described to her. Another tightens requiremens for parental notification when a minor seeks an abortion. A third prohibits insurance policies created through the federal health care law from covering abortions, and the fourth redirects proceeds from Choose Life license plates from counties to Choose Life, Inc., which counsels pregnant women. Lawmakers also passed a bill proposing a Constitutional amendment, which doesn't require the governor's signature, that would prohibit using tax dollars to pay for abortions."It would be hard to top this session for the pro-life cause. We had great success," Gaetz said.

Asked what his response it to those who say the laws limit choice for women, Gov. Scott referred to the ultrasound bill, passed by a previous Legislature but vetoed by then Gov. Charlie Crist. "You should have the opportunity to see see an ultrasound of your child," Scott said. "It's your choice. You don't have to. This creates choice. I think it's very positive."

Bradlee Dean’s Lawyer Claims Rachel Maddow’s Career Is Over For Telling The Truth

2011-07-29T12:20:00.000-04:00

Bradlee Dean’s Lawyer Claims Rachel Maddow’s Career Is Over For Telling The Truth

by Bridgette P. LaVictoire

Radio minister and former rock singer Bradlee Dean may want to have his and his lawyer’s head examined. It is possible to sue someone for defamation if- and only if- you can prove that the information that they disseminated was both patently false and designed to hurt the career of a particular person. The problem here is that what Dr Rachel Maddow told her viewers was, well, the truth. She aired a clip of Dean praising the murder of lesbians and gays by Muslims in its entirety, and then aired the disclaimer by Dean that he did not call for the murder of lesbians and gays.

The fact that his ministry and personal finances have been severely damaged over this is not her fault. People today are far less tolerant of homophobes like Dean than they were a decade ago. The trial will be very quick. The lawyers for Dr. Maddow and MSNBC will say “Mr. Dean, did you or did you not say these things in this clip here?” Dean will say, under oath, “Yes, sir” The lawyers will then ask “did you or did you not issue this disclaimer also found in this clip?” Dean will say “Yes, sir.” The lawyers will then say “So, exactly how did Dr. Maddow defame you and destroy your ministery?”

That is not stopping Dean’s lawyer Larry Klayman from claiming that Maddow’s career was over. The two spoke by phone to the Michele Tafoya Show on CBS Radio. According to Talking Points Memo:

Maddow is “trying to destroy Bradlee Dean, trying to destroy Bachmann,” Klayman said, adding that Maddow’s remarks were the “most outrageous statement I’ve heard in my entire life, and I’ve lived a bit here.”
Tafoya, pressing Dean a bit on his position on homosexuality, asked him if he indeed believes it is an “abomination.”
“If you’re asking if I’m in agreement with the word of God, then yes I am,” Dean responded.
Maddow’s remarks have harmed both Dean’s reputation and finances, Klayman said. “You can’t just say whatever you want,” he said. “This is going to cost MSNBC hundreds of millions of dollars and will probably end the career of Rachel Maddow.”

Yes, she reported exactly what Dean said without much in the way of condemnation or anything other than laughing her backside off. So, how this is going to cost MSNBC or Dr. Maddow anything is rather hard to figure out. At issue is this statement from Dean:

“Muslims are calling for the execution for homosexuals in America, this was just released yesterday and it shows you that they themselves are upholding the laws that are even in the Bible, the Judeo Christian God. They seem to be more moral than even the American Christians do. Because these people are livid about enforcing their laws, they know homosexuality is an abomination. And I continually reach out to the homosexual communities on this radio show, and I warn them, which ones love? Here you have Obama condemning it behind the backs of the homosexuals but to their faces he’s promoting it. I say this to my gay friends out there the ones that continuously nitpick everything I say. Hollywood is promoting immorality and the God of the Heavens in Jesus names is warning you to flee from the wrath to come, yet you have Muslims calling for your execution. If America won’t enforce the laws, God will raise up a foreign enemy to do just that’s what you’re seeing in America today. Read Leviticus 26 America.”

Dean also said “The bottom line is this … they [homosexuals] play the victim when they are, in fact, the predator. On average, they molest 117 people before they’re found out. How many kids have been destroyed, how many adults have been destroyed because of crimes against nature?” In fact, the last statement has been proven manifestly incorrect repeatedly despite constant repetition by the homophobes out there.

And this clip from Dr. Rachel Maddow:

Visit msnbc.com for breaking news, world news, and news about the economy

Klayman is also claiming that MSNBC and Dr. Maddow are trying to sabotage the Presidential Campaign of Michele Bachmann by going after Dean, though that claim is also untrue since this began back during the Minnesota gubernatorial race. Here is the audio of the program:

Dean has been doing a lot of ducking and only going on supportive venues for his interviews. He canceled an appearance on Michelangelo Signorile’s show recently, but appeared on the show of Alex Jones. Dean, of course, pulled out all the stops on his homophobia by claiming that lesbians and gays are targeting children for recruitment. Of course, that is false. Rather religious leaders love to target children for recruitment. What is the old Jesuit motto? “Give me a child until the age of seven and he is mine for life.” Dean and Jones talked about children as young as seven being taught about ‘fisting’, which is rather absurd. Here is the transcript:

DEAN: It’s about protecting a particular people who are being attacked, namely the young in public high schools and that’s what this is really about and what they want to do is they want to keep me on the defense so they can stay on the offense so they can continuously play the victim.
JONES: All over the country, it is a fact, and I wouldn’t want heterosexuals [sic] recruiting 7-year-olds. They target children and I can’t even say on the radio for 20 years what’s been taught.
DEAN: Yep.
JONES: But they teach children sexual acts that can kill you.
DEAN: Yep.
JONES: I mean, we’re talking about fisting, ladies and gentlemen. Things like that are taught to 7-year-olds.

Dean, basically, is claiming that people who have an agenda opposite or opposed to his are targeting him for destruction for a variety of reasons. This is not defamation. That is the normal course in a political debate. So, honestly, Dean might want to walk away before he and his ministry are in worse shape than they are now.

Here is the statement from the American Independent News Network:

The allegations by Bradlee Dean and You Can Run But You Cannot Hide International (YCR) are completely without merit. The American Independent News Network stands firmly behind our news site, The Minnesota Independent; our reporter, Andy Birkey; as well as their reporting on Dean and his ministry. The complaint describes Birkey as taking “a ‘special interest’ in Plaintiffs Dean and YCR because he is a secularist and/or atheist and gay activist with a politically left ideology who despises people of faith.” However, in giving Birkey and The Minnesota Independent first prize for Best Continuing Coverage of their reporting on YCR, the 2010 judges for the Minnesota Professional Chapter of the Society of Professional Journalist’s Page One Awards stated, “the reporter [Birkey] takes a deep-dive with an even-handed approach into a weighty subject sure to provoke controversy from various standpoints. Leads readers to think about serious public policy and constitutional issues.”

All defendants rest cases in Ala. gambling trial

2011-07-29T12:06:00.000-04:00

All defendants rest cases in Ala. gambling trial

By BOB JOHNSON
Associated Press

MONTGOMERY, Ala. (AP) - All nine defendants in the federal gambling corruption trial have rested their cases after calling only one defense witness.

Lawyers for Macon County casino owner Milton McGregor and the other eight defendants walked one at a time to the microphone at the start of court Friday and announced their clients were resting their cases.

Prosecutors spent more than seven weeks putting on 17 witnesses. Prosecutors say the defendants, including four former and current state witnesses, conspired to buy and sell votes on a bill to legalize electronic bingo at some locations in Alabama.

Defense attorneys started putting on the cases Thursday morning after U.S. District Judge Myron Thompson refused to throw out any of the charges. Only one witness was called Thursday by defendant Tom Coker, who joined the other defendants in resting Friday.

5 years later, states struggle to comply with federal sex offender law

2011-07-28T14:42:00.001-04:00

5 years later, states struggle to comply with federal sex offender law
By Emanuella Grinberg

This story was assisted by an H.F. Guggenheim/John Jay reporting fellowship from the Center on Media, Crime and Justice at John Jay College.

(CNN) -- Five years ago this week, President George W. Bush signed the Adam Walsh Child Protection and Safety Act with the intention of making it the law of the land for keeping tabs on sex offenders.

Named for the 6-year-old whose slaying by a stranger galvanized child safety reforms and turned his father, John Walsh, into one of the nation's most recognizable victims' advocates, the law set forth the most comprehensive national standards to date for monitoring sex offenders in America's communities.

This week also marks a key deadline for states, tribes and U.S. territories to meet the act's requirements or face a 10% cut in federal justice assistance funding, not exactly small change in tight economic times.

As of Wednesday, the 30th anniversary of Adam Walsh's disappearance from a Florida department store, 14 states, nine tribes and the territory of Guam had "substantially implemented" what's known as the Sex Offender Registration and Notification Act, or SORNA, provisions of the Adam Walsh Act. On the eve of the July 27 deadline, last-minute submissions were trickling into the Office of Sex Offender Sentencing, Monitoring, Apprehending, Registering, and Tracking, known as the SMART office.

The law expanded the categories of crimes eligible for registration and increased the period and frequency of registration for certain adults and juveniles, effectively growing registries by as much 500% in some states. It called for jurisdictions to retroactively register some adult offenders who'd already done their time on the registry. It also called for registration of certain juveniles who'd been shielded from the registry in the past, based on the notion that confidentiality offers them a greater likelihood of rehabilitation.

The goal was to corral the information into a national public registry and FBI database. But the act is still very much a work in progress.

It's not from a lack of desire, said Susan Frederick, federal affairs counsel with the National Conference of State Legislatures. Since 2008, 48 states have enacted nearly 350 laws related to residency restrictions, sentencing and monitoring sex offenders, according to an NCSL database.

"States are very sympathetic to the need to supervise and penalize registered sex offenders. There's no softness on that population," Frederick said. "But any time you're going to be collecting and cataloging information on more people more often, that comes at a high cost. The question is whether it's worth it."

Many states don't want to change their laws; others believe the legislation's cost outweighs its predicted benefits, she said. Texas has put the estimated federal funding cuts at $1.4 million, compared to a cost of $38.7 million.
To see how the law has fared in practice, one need look no farther than Ohio, the first state to adopt the law in its original, most stringent form, in 2007.

Adam Walsh was 6 years old when a stranger took him from a Florida store. His decapitated body was later found.

Ohio's version of the Adam Walsh Act, SB 10, has resulted in more than 7,000 legal claims, according to the state public defender's office. It also has led to years of litigation, two state Supreme Court rulings and separate registry criteria for sex offenders whose crimes occurred before and after the law's enactment.

The slow unraveling of Ohio's law underscores some of the major criticism of the new federal scheme and the registry in general: that it stigmatizes offenders beyond hope of rehabilitation while giving the public a false sense of security.

The federal agency created to help the states implement the act acknowledges that compliance has been an uphill battle. It has also listened to the states' concerns and issued supplemental guidelines that offer states more flexibility than Ohio had when it adopted its law.

Controversial legal issues like retroactive registration -- requiring an offender who was sentenced before the legislation to follow the new rules -- and juvenile registration get the most notice. For most states, however, the biggest hurdles are implementing technology and adjusting statutes, said Linda Baldwin, director of the SMART office.

"What happens across the board is some states are finding it more difficult to implement SORNA depending on their starting point," she said. "We've found that states whose systems are not centralized and digitized have had to make great changes to their registry system, but those changes require an investment that states have been able to apply to our office for funding for."

Uniform laws and a centralized database enable law enforcement to share information and ensure offenders don't slip through the cracks, Baldwin said. Community notification makes information about released sex offenders broadly available through various means, such as postcards in the mail, phone calls, e-mail alerts and police going door to door.

Online registries don't include everyone who is a threat, she said, because not all dangerous predators are known to law enforcement. Online registries also are not a tool to reduce repeat offenses, she said.

"It's hard to measure whether these important public safety goals are being met and figuring out how to measure that is challenging and may take years for us to complete," Baldwin said. "But what we've found is, as an alternative, many people are focusing on registration notification programs as tools to reduce recidivism, which really is not a major goal of these laws."

She stressed that the registries are "primarily a law enforcement tool, an ability to allow the public to take measures to protect themselves."

The effectiveness of registries -- for sex crimes and other offenses -- has long been a topic of debate. Supporters like Baldwin tout their public safety benefits, while critics say they can have the unintended consequence of destabilizing sex offenders.

"Public notification creates barriers to successful sex offender management and treatment and supervision," said Alisa Klein, Public Policy Consultant for the Association for the Treatment of Sexual Abusers and co-author of the report, "A Reasoned Approach: Reshaping Sex Offender Policy to Prevent Child Sex Abuse (PDF)."

Offenders re-entering the community need strong support systems to prevent them from reoffending, she said, through family, faith communities and a steady job.

"Going on a public registry creates an immediate stigma. It can prevent employment, prevent them from living with families, get them thrown out of faith communities; it has the consequence of putting someone in an emotional state that may make them more likely to reoffend," she said.

Some states have attempted to evaluate the benefits of SORNA. In Texas, home to more than 60,000 registered sex offenders, a 2010 report from the Senate Criminal Justice Committee (PDF)concluded, "It is clear registries do not provide the public safety," noting the issue contained "gray areas."

The California Sex Offender Management Board also recommended against implementing the provisions of the Adam Walsh Act, stating, "California state law and practice related to offender risk assessment, juvenile registration and sex offender monitoring is more consistent with evidence-based practice that can demonstrate real public safety outcomes."

Who commits sex crimes against children?

- Family member: 34.2%
- Acquaintance: 58.7%
- Stranger: 7%

-- U.S. Department of Justice, Bureau of Justice Statistics, 2000

People on both sides of the debate agree that truly dangerous sexual predators, such as pedophiles and rapists, need to be monitored closely if they're going to be released into communities.

The federal law uses a three-tiered system based on the sex crimes offenders are convicted of to determine the length of time they must remain on the registry and the frequency with which they must check in with law enforcement. Critics say that using offense-based registration instead of an approach based on risk-assessment -- favored by states like Texas and California -- pulls too many offenders onto the registry and overburdens law enforcement, preventing police from keeping a close eye on the worst of the worst.

"I think we would have a better use of our time if we could determine who the most dangerous ones are," said Sheriff Jeff Grey of Mercer, Ohio. "Sometimes we get tied up registering the ones who are trying to do the right thing and don't have time to look for the ones that are out of compliance, but just because someone's registering and doing everything he's supposed to doesn't mean he's not going to reoffend."

In Ohio, law enforcement is working closely with the state Attorney General's Office to explore ways that technology can streamline the process. Sheriffs' departments use software that sends e-mail notifications to offenders or calls them seven days before they have to register. If the e-mail bounces back or the call goes to the wrong person, law enforcement knows an offender is not complying, Grey said.

The state also recently released an iPhone app -- Shaquille O'Neal is its spokesman -- that locates registered sex offenders in a given area. Authorities in Ohio also are looking into kiosks to allow offenders to self-register through iris and fingerprint scans at the sheriff's department if the technology proves reliable.

"We need to keep up with the technology because it's there to help us do the job," said Grey, chairman of the sex offender registration and notification committee for the Buckeye State Sheriff's Association.

Besides Ohio, states that have adopted SORNA are Alabama, Delaware, Florida, Kansas, Louisiana, Maryland, Michigan, Mississippi, Missouri, Nevada, South Carolina, South Dakota, and Wyoming. The number of offenders on Wyoming's registry increased from 125 to 1,450 after the state moved from risk-based assessment to a tier system for registration, said Kevin R. Smith, deputy director of the state's Criminal Justice Information Services.

The biggest change for Wyoming involved juveniles, who were exempt from registration under old state law. New guidelines passed in January 2011 allowed Wyoming to exclude juveniles from appearing on the online registry, but they're still subject to community notification, he said.

"It's always been a difficult decision for the Legislature, the need to register juveniles for public safety versus the idea of confidentiality to rehabilitate juveniles." Smith said. "Wyoming didn't want to be seen as any more or any less restrictive than the national standard. ... We didn't want to be seen as the place to come to that was easier on sex offenders."

There's a saying among critics of the registry, that the rare cases of "stranger-danger" inspire the most sweeping legislative reforms. The slayings of Adam Walsh, Jacob Wetterling, Jessica Lunsford and Dru Sjodin, all sparked legislation that has been incorporated in the Adam Walsh Act.

Sadly, it often takes a tragedy to inspire needed reforms, said Linda Walker, Sjodin's mother. She thinks if the Dru Sjodin National Sex Offender Public Website had existed in 2003, it might have saved her daughter's life.

The abduction and murder of Dru Sjodin led to a law named after her that established a national sex offender registry.

Neither Sjodin, a University of North Dakota student, nor her mother knew that a sex offender considered likely to reoffend was living across the border in Crookston, Minnesota. Alfonso Rodriguez was released from prison in May 2003 after serving 23 years for sexual violence against a Crookston woman. He abducted Sjodin from a mall parking lot in Grand Forks, North Dakota, on November 22, raped and murdered her. Rodriguez is awaiting execution on federal death row.

Sjodin's death inspired Dru's Law, which required convicted child molesters to be listed on a national online database and face a felony charge for failing to update their whereabouts. It was included in the Adam Walsh Act and signed into law the same day, five years ago.

Sjodin's mother has become a member of a club no one wants to belong to: The Surviving Parents Coalition. The group advocates for legislative initiatives in areas of child safety education, the expansion of DNA laws and national standards for sex offender legislation -- Walker's main focus.

She maintains that the Adam Walsh Act sets minimum standards, not a ceiling, so the public can protect itself.

"Our borders, we don't see them, and we're such a mobile nation, we move to different communities frequently, so this gives you a better awareness of who you might be living among," she said.

"I get so angered that we humanize these people who choose to victimize. We give these offenders two, three, four different chances -- what does that say to the victims?"

Some people would rather die than face a lifetime on the registry. One of those people, Roy Martin, hanged himself in his garage after learning he would be reclassified as a Tier III offender in Ohio.

Martin was released from prison in 2004 after serving 10 years for raping a female relative, though he maintained his innocence, said his lawyer, Shimane K. Smith.

Under the state's Megan's Law, which took effect in 1997, a judge classified Martin a sexually oriented offender, which meant he had to register once a year for 10 years after his release. Then he received a letter in November 2007 from the Ohio Bureau of Criminal Identification and Investigation notifying him that under Ohio's SB 10, he would be reclassified effective January 1, 2008, as a Tier III offender.

For the rest of his life, he would have to check in every 90 days with law enforcement to confirm his home address, employer, school address and Internet identifiers and vehicle make.

His sex offender status was already a source of deep shame for the introverted, 50-year-old construction worker, who was prone to drinking in times of despair, said his companion, Denise Sees.

"You go to get a job, they know your record, they don't want you. Everybody knows who you are. You're marked for life," she said.

She never suspected he was capable of killing himself. But upon reflection, there were signs to indicate he had prepared for it, she said. He cleaned up the garage, organized his tools, finished an addition to the house. Then, early in the morning of February 27, 2008, he came home smelling of alcohol.

"I went to bed; told him we didn't have to talk about it. In the middle of the night, I heard coughing. I thought he was smoking a cigarette. I woke up the next morning and was calling for him. He was in the garage. He had hung himself with a cord," she said.

He didn't leave a note, but she knew that the prospect of lifetime registration was too much to bear.

"If you've not been involved in it you do not know what it's like," she said. "I just think him having that label on him, he couldn't take it anymore. I think he thought that was his best choice."

Since Martin's suicide, retroactive registration under SB 10 has been found unconstitutional by the Ohio Supreme Court in two cases, including a July 13 ruling that found imposing "current registration requirements on a sex offender whose crime was committed prior to the enactment of SB 10 is punitive."

Ohio Attorney General Mike DeWine said he does not agree with the court's decision in State v. Williams (PDF), but his office will not appeal the ruling. He does plan to seek clarification on how the panel reached its decision and how that could apply to cases down the road.

DeWine, a former U.S. senator and representative, continues to support public registration. His next step is to figure out how to make sure offenders retain their pre-SORNA classification.

"The public has an interest in making sure these people check in with police and that we know where they are," he said. "The public policy goal of the attorney general's office is to make sure that the sex offenders who were classified before remain classified."

The recent court ruling creates a cliffhanger ending for those watching three juvenile cases that raised similar claims regarding retroactive registration.

"We think with the court's finding that SB 10 can't be applied retroactively to adults should lead to the same finding for children," said Brooke Burns with the Ohio Public Defender's Office, who represents two juveniles in claims that retroactive application of the law for juveniles is unconstitutional.

The cases underscore concerns nationwide that placing teens on a public registry will stigmatize them and hamper their chances of moving beyond the offense.

Given juveniles' positive response to treatment and room for cognitive development, the juvenile system has traditionally been regarded as rehabilitative, unlike the adult system, which counts punishment among its goals, Burns said.

"The court's finding that registration is punishment opens the door for us to start advocating that juveniles cannot be given a punishment because they're in juvenile court, which in itself is a rehabilitative system," she said.

Another scenario she hopes for is that the court might consider terminating the requirement to register at 21, the age at which the juvenile court loses jurisdiction over an offender -- except when it comes to the registry, Burns said.

"The only penalty that sticks beyond the juvenile system in and of itself is registration," she said. "We hope with (the court calling the registry) punishment, perhaps the court will find ... that you cannot impose a lifetime punishment on children or a person when the court that imposed it only has jurisdiction on a person 'til 21."

The use of the word "punitive" in the ruling has been a source of hope to opponents of the registry, who disagree with case law that says sex offender registration does not constitute cruel and unusual punishment because it is a civil remedy intended to protect the public.

Critics of the registry say it perpetuates fears that strangers are most likely to commit sex offenses on children, when research shows the most frequent perpetrators are relatives and acquaintances. Victim advocacy groups and policy think-tanks cite volumes of academic research and a Department of Justice study to support the argument that registries are not a cure-all for preventing sex crimes against children.

"It's such a misleading statement to send to the public that we somehow have a notion of where all sex offenders are and that we can keep the public safe from them because we have a registry," said Elizabeth Barnhill, executive director of the Iowa Coalition Against Sexual Assault. "It's fueled by awful things that happened to children and very understandable, but unfortunately that's not a fix that makes sense for most offenders."

Sex crime prevention begins in the home, she said, by instructing parents of the warning signs and teaching children not just about good touches and bad touches, but also about basic respect.

"Primary prevention is very long-term work that involves a cultural shift in terms of how we deal with children, what we teach children, the messages communities send toward children and women," she said. "There are still a lot of cultural norms that allow for the victimization of people who are vulnerable."

Do Smoking Regs Violate Tobacco Companies' Free-Speech Rights?

2011-07-27T13:05:00.000-04:00

Do Smoking Regs Violate Tobacco Companies' Free-Speech Rights?

By Nathan Koppel

The 6th Circuit today is due today to hear an interesting challenge to the federal government’s regulatory power — and, no, we are not referencing another case involving the federal healthcare law.

At issue in the 6th Circuit case is the Family Smoking Prevention and Tobacco Control Act, which gives the Food and Drug Administration the power to regulate tobacco advertising.

Tobacco companies claim that the law, which bans the companies from sponsoring athletic, social and cultural events or offering free samples, violates their free-speech rights, the AP reports in this preview of today’s hearing.

The Tobacco Control Act has been a hot topic this year, after U.S. regulators mandated that cigarette makers add graphic warning labels to their products depicting such images as a man exhaling smoke through a hole in his neck — a development we wrote about here. (The tobacco industry’s free-speech challenge predated the new smoking regulations, which are due to take effect new year.)

Last year, Kentucky federal judge Joseph McKinley Jr. largely rejected the industry’s free-speech challenge to the federal law.

Kenly Ames, an attorney for the tobacco companies, wrote in an appellate brief that the federal law doesn’t serve any purpose other than to make it difficult for companies to sell cigarettes, the AP reports.

Justice Department attorney Alisa B. Klein countered with a brief contending that the restrictions at issue are needed because of tobacco companies’ track record in seeking out new customers, according to AP. Tobacco imagery “seeks to distract potential users from the fact that tobacco products are lethal and addictive,” Klein wrote.

Reputed South Florida Mob Boss Appeals Fraud Conviction

2011-07-27T08:41:00.000-04:00

Reputed South Florida Mob Boss 'Vincent Artuso' Appeals Fraud Conviction

he man considered to be the head of the Gambino crime family’s operations in South Florida has asked a federal appeals court to overturn his nine-year prison sentence for real estate fraud.

Vincent Artuso claims prosecutors didn’t have enough evidence to convict him of fraud and racketeering charges involving a lengthy scam that cost ADT Security Services Inc. at least $11 million. Federal prosecutors counter that the evidence was sufficient to convict Artuso of the fraud charges.

Prosecutors said Artuso was a “made member” of the Gambino family and has been linked to the infamous hit that led to John Gotti’s rise to power.

Judge OKs spitting suit against Pa. Burger King

2011-07-26T13:32:00.000-04:00

Judge OKs spitting suit against Pa. Burger King

A federal judge says a black trucker's lawsuit against a Burger King franchise in northwestern Pennsylvania should be heard by a jury and not dismissed as the restaurant's attorneys requested.

ERIE, Pa. —

A federal judge says a black trucker's lawsuit against a Burger King franchise in northwestern Pennsylvania should be heard by a jury and not dismissed as the restaurant's attorneys requested.

Glenn Goodwin, from Cleveland, Ohio, filed the civil rights lawsuit against Fast Food Enterprises (hash)3, which operates the restaurant along Interstate 90 in Fairview. Goodwin contends a white worker there spit in his burger in 2008.

Defense attorneys wanted U.S. District Judge Sean McLaughlin to dismiss the lawsuit, claiming there's no proof of the spitting or that the worker was motivated by racial prejudice.

But McLaughlin says there's enough evidence in dispute that a jury should hear the case. State police found saliva in the burger, but didn't charge anyone because it was thrown away without a DNA test.

Lawyers decry public comments from DSK's accuser

2011-07-25T11:06:00.000-04:00

Lawyers decry public comments from DSK's accuser

Lawyers for Dominique Strauss-Kahn are blasting back after the first public comments from the hotel maid accusing him of sexual assault.

"I want him to go to jail," Nafissatou Diallo told Newsweek in a cover story posted online Sunday. ABC News says it will broadcast an interview with her on three of its programs on Monday. In the interviews, she gives new details about the alleged attack in a Midtown hotel room.

Lawyers for the former International Monetary Fund chief say Diallo is looking for money and call the interviews "an unseemly circus" designed to inflame public opinion.

The case against Strauss-Kahn is in limbo after prosecutors raised doubts about the maid's credibility.

Her lawyers call the defense's conduct "an unprecedented smear campaign against the victim of a sexual attack."

Lawyer for Leiby Kletzky's Killer Quits Case for His Kids

2011-07-22T12:43:00.002-04:00

Lawyer for Leiby Kletzky's Killer Quits Case for His Kids

I didn't think I could be more disturbed and sickened by the murder of 8-year-old Leiby Kletzky than I was already. Then I saw defense attorney Gerard Marrone on the news, explaining why he suddenly resigned from the case. Looking like a haunted man, Marrone said that as the father of three boys, he could not in good conscience continue to representKletzky's alleged killer, Levi Aron.

"I looked at my own children and there are no words. You see the victim and you feel so sad," said Marrone, who admitted to breaking down in tears over the "horrific" way Kletzky's life was ended.

"A little piece of me died when I got this case," he said.

That's when the gut-wrenching tragedy hit me on a whole new level. Criminal defense attorneys are tough guys; it comes with the territory. I've never seen someone in that line of work so openly repulsedby his client that he's forced to not only drop the case, but to drop all legal pretense and publicly react on a strictly human level: I'm too horrified by this man to defend him. 

What did Marrone see in Aron's eyes that shook him so badly? Those were the last eyes Leiby Kletzky ever looked into. To think that a perfectly innocent child had to spend the final moments of his life under that cold, empty stare makes me doubt the very order of the universe. So I completely understand what Marrone meant when he said, "Before I got involved I believed in the divinity of human beings, and when I got involved I questioned the divinity of human beings."

Of course he had to give up the case. As parents, how can we carry on raising our children if we don't harbor even the faintest hope that there's some meaning behind human life? I admire Marrone's honestyand his decision to put his children first.

Do you agree that Marrone did the right thing when he gave up the Leiby Kletzky case?

Megan's Law not intended for pranksters

2011-07-21T11:50:00.002-04:00

Megan's Law not intended for pranksters

Often, the law is complex. A three-judge panel this week ruled that bullying by two 14-year-old Somerset County boys was serious enough to require them to register as sex offenders for the rest for their lives.

The crime? The two boys sat on the faces of 11-year-old and 12-year-old schoolmates, with bare buttocks.

One boy was convicted of criminal sexual contact. The other boy who was implicated pleaded guilty to the same offense and received the same penalty.

The trial court found that while the boys placed their buttocks on (or above) the victims’ faces, at least one of the boys’ penises touched the lips of a victim and might have parted the lips. Although that contact was unintended, it raises the act from horseplay and bullying to a more serious offense.

But how serious?

The question the panel grappled with was whether the boys are sex offenders and deserve an indelible punishment that could mark them for the rest of their lives. The panel, acknowledging “profound lifelong ramifications” for the boys, nonetheless said its hands were tied, because the law is the law, and Megan’s Law, when applied literally, fit.

Despite the horrid nature of an attack by stupid teens that got out of hand, we don’t believe Megan’s Law intended to punish teenage pranksters or bullies. The trial judge concluded the boys’ motive was to humiliate or degrade the victims. There was no evidence of sexual gratification.

This is not to dismiss the acts with boys-will-be-boys absolution. The punishment, however, should fit the crime, and while we acknowledge the humiliation suffered by the victims, there is no evidence this was a sex crime.

Asked why he did it, the teen said he “thought it was funny and I was trying to get my friends to laugh.”

While the state Legislature should consider changing the law to exclude similar situations, we hope the judges, if they’d had any leeway, would have used it. We hope they weren’t, as a defense attorney charged, “simply offended by the behavior and just couldn’t get past that issue.”

Emotion and a thirst for revenge could lead us to insist that making the boys register as sex offenders is a small price to pay for the psychological damage they have done.

But the question is, are they predators and sex offenders as Megan’s Law intended to define them? The answer is no.

Courtroom drama: Actors bring depositions to life

2011-07-20T11:27:00.000-04:00

Courtroom drama: Actors bring depositions to life
By Manuel Rueda

Florida attorney Marc Brumer's client broke his heel after falling from a pedestrian ramp. But by the time he took the construction company that built the ramp to trial, the only witness had moved out of the state.

Brumer had a solution: he hired a professional actor to read the absent witness's deposition to the court.

Reading the deposition word for word and replicating the witness's Hispanic accent, the actor described how the ramp was badly lit and had no warning signs for pedestrians.

"We were all floored," Brumer said of the performance. "It was like the witness was there." The building company settled.

A specialist in personal injury cases, Brumer is among a handful of lawyers in Florida who hire actors to read the statements of absentee witnesses. He also runs Actors at Law, a small company that finds actors for lawyers when their witnesses cannot make it to a trial.

"I'm all for using tools that will help the jury understand the evidence," Brumer said. "When you go to trial on a difficult case, you need every tool you can get to win."

Attorneys in the United States are allowed to read out depositions to juries when their witnesses cannot attend a trial. Witness testimony can also be videotaped.

But as long as it is made clear to the court the reader is not the actual witness, anyone can read the depositions.

Brumer says that in most cases, the judge and the jury don't even notice he hired an actor to read a deposition.

Unorthodox ways to present evidence are easy to find in U.S. courts, where some cases like the recent trial of Florida mother Casey Anthony that found her not guilty of murdering her 2-year-old daughter Caylee become prime-time media events.

The country's adversarial legal system, which requires two sides in a case to argue orally in front of juries, encourages innovation and drama in the courtroom.

Computer programs are used regularly to recreate accidents, while medical diagrams are common props. In larger cases, image consultants school defendants and witnesses on how to take the stand and behave. And psychologists help lawyers to analyze jurors' attitudes toward their clients.

CHEAPER THAN EXPERTS?

However, legal experts have mixed feelings about the use of actors during trials.

"If you bring in a professional actor -- to read a deposition -- you could tint the situation" said Jan Jacobowitz, a former trial lawyer who directs the Professional Responsibility and Ethics program at the University of Miami's School of Law.

"But in other situations maybe you engage the jury and get them to pay better attention," she added.

Jacobowitz said the Florida Bar Association's professional rules of conduct contain provisions on candor, impartiality and fairness to the opposing party that could be used in some circumstances to challenge the use of actors in the courtroom.

The American Bar Association also contains similar provisions in its rules of conduct. But the legal entity has no specific rules governing use of actors in the courtroom.

"I think it should be left to the discretion of the judge," Jacobowitz concluded. "The issue here is the witness isn't going to appear anyway, and you're permitted to have the deposition written into the record, are you going to restrict the ability to choose who's going to read it?"

Ellen Jacoby, Brumer's partner in Actors at Law, argues attorneys could save some money by using actors.

Rather than hiring experts like doctors and scientists to spend an afternoon at court, she says law firms could take depositions in expert's offices, and hire actors to read out the testimonies for a fee of, say, $200 per hour.

"A lawyer doesn't want to pay $25,000 to bring in an expert witness," she said. "This makes the justice system a little bit more affordable."

Jacoby runs a casting agency that has found actors for several major TV series and films shot in Miami. Over the past 20 years she has worked for "Miami Vice," "CSI Miami," and the Hollywood comedy, "There's Something About Mary."

The thought of providing actors for the legal community came to Jacoby after she sued her insurance company for not covering a back injury she suffered in a car accident.

During the trial in which Brumer represented her, Jacoby was shocked to see jurors doze off as lawyers read the deposition of a police officer who witnessed the crash scene but was absent from the hearing.

"There were many things about the justice system that I was unhappy about. And the fact that the judge doesn't wake anybody up when they fall asleep? It's frightening," she said.

The logo of Actors at Law reads "don't let the jury fall asleep."

SPOTTY DEMAND

But lawyers in Florida and elsewhere around the country, have been slow to adopt the use of actors in court. Actors at Law has only received a dozen requests for deposition readers since it was launched in 2006.

Law Actors, a Chicago-based company that provided the same service back in the 1990s, peaked at some 20 requests per year in 2005, says its founder, Ian Harris. Clients were mainly based in Chicago, but Harris also found actors to read depositions for lawyers in Texas, Nevada and Florida.

After the 2008 recession, however, the company's business tanked, with no requests for actors coming in during 2009, and only 10 orders in 2010. Unable to make a living from Law Actors contracts, Harris took a daytime job in a Chicago condo.

"With the economy the way it is, it's much tougher to get anyone to use this kind of service," he said.

Harris says the demand for this sort of service before a jury has also dropped because lawyers are now more likely to settle cases before bringing them to trial.

U.S. lawyers took 2,154 civil cases to juries at district courts around the country in 2010 and 2,928 criminal cases. But five years earlier, when Law Actors' business was at its peak, juries heard 2,312 civil cases in U.S. district courts and a much higher number of criminal cases, 3,768.

Searching for new streams of revenue, Law Actors has developed workshops, in which actors teach lawyers how to get the most compelling testimony from their witnesses.

However, Harris hopes the risk-takers and "mavericks" in the legal profession will continue to see the benefits of using actors during trials.

"What the actors are able to do is bring a sense of reality," he said. "They're used to reading somebody else's words and making them come alive."

Does new law elevate sexuality in our schools?

2011-07-19T11:25:00.000-04:00

Does new law elevate sexuality in our schools?
By Dennis Wyatt

Was Aristotle gay? And what about speculation that Leonardo DiVinci was also gay?

Given their contributions, does it really matter?

Apparently it does to the California Legislature but only if they were Americans. The new state law requires California public schools to teach students about the contributions of lesbian, gay, bisexual, and transgender Americans.

And who says what goes on in the bedroom between consenting adults is a private matter.

The first law of its kind in the nation is aimed at increasing tolerance. And how else to do it but teach kids that your sexuality is something to flaunt in public right up there with other character traits.

Their objective is to show that gays et al contribute to society as well.

There are some gays whose sexuality is the cornerstone of their contributions. Harvey Milk - the assassinated San Francisco supervisor - comes to mind. He clearly made his mark on society with his crusade for gay rights. But after that, shouldn’t sexuality have some relevance in teaching about the contributions of individuals?

Does it really matter that we teach Tennessee Williams Ford was gay? Given the fact the prolific American writer is already given short shrift in public schools it seems to be a slap upon his contributions to elevate them now simply because he was gay.

And what about the fact Assembly Speaker John Perez is openly gay? Does anyone really think he was elected to the assembly simply because he was gay? It would be like insinuating that Willie Brown was elected just because he’s black. You may disagree with the politics of either man but it was their consistent liberal stance, ability to deliver on campaign promises, and intelligence that got them elected from their districts and not their sexuality or skin tone.

But now the California Legislature is elevating sexuality to a level that it is highly doubtful they intended it to be lifted.

One’s sexual orientation shouldn’t dilute or validate your accomplishments or contributions to society.

It’s absolutely rubbish to imply that artists for the most part are gay just like it is to contend war heroes are all straight.

Defenders of State Senator Mark Leno’s legislation would contend people need to be made aware that gay people do the same things and make significant contributions just like heterosexuals do.

A cheap counter argument is to contend that by doing so they are drawing attention to the fact sexuality somehow makes a difference.

Schools should concentrate on important historical contributions of Americans and Californians regardless of skin tone, ethnicity, gender, or sexuality. There should be no debate on that matter.

Our public schools also should be a hot bed of tolerance.

What they should not become is a place where sexuality percolates to the surface for gratuitous purposes. Nor should public schools tolerate any openly sexual behavior whether it is a boy and girl kissing, two boys holding hands, or anything else of that nature.

If schools are teaching kids how to function in the real world, government rules make it clear that such behavior is not tolerated in the workplace as it constitutes sexual harassment to others who may be gay, straight, or otherwise.

Sexuality should be eradicated from public schools while at the same time sexual orientation shouldn’t matter in terms of how one is judged either in history books or as a student.

Illinois ramping up fight against child porn

2011-07-18T12:35:00.000-04:00

Illinois ramping up fight against child porn
BY DAN ROZEK

A major effort is under way in Illinois to fight child pornography, even as authorities say more people than ever are being prosecuted for such crimes, including a rash of high-profile cases such as the conviction of a former state police trooper who admitted he viewed kiddie porn on his state-issued laptop computer while on duty.

Technology has made it easier for people trafficking in child pornography to stay in the shadows. But it’s also aided investigators trying to combat the problem.

Now, Illinois Attorney General Lisa Madigan is aiming to tip the scales even further in investigators’ favor. Madigan plans to meet this week with a number of Internet companies to urge them to adopt a technology called PhotoDNA to aid child pornography investigations in Illinois.

Developed in 2009 by Microsoft Corp., which donated the technology to the National Center for Missing & Exploited Children, PhotoDNA makes it easier to track online child porn files and defeat the high-tech tactics that child pornographers increasingly have employed in an effort to remain out of authorities’ reach, says Ernie Allen, president of the Virginia-based center, which works with law enforcement agencies on child pornography crimes.

“This is an extraordinary tool,” said Allen, whose organization is asking Google and other major Internet companies to adopt the technology. Facebook already has.

PhotoDNA makes it possible to track the files, typically shared over the Internet, even if users change the sizes of the images or reformat them, which in the past have helped them avoid detection, said Allen.

Madigan’s new push for more companies to adopt the technology is the latest in a series of efforts aimed at attacking Internet child pornography.

“Illinois is really a leader in this effort,” Allen said of the effort led by the attorney general’s office, which runs a federally funded “Internet Crimes Against Children” task force that covers all Illinois counties except Cook. The Cook County task force is run by the county state’s attorney.

No one knows the precise extent of Internet child pornography. But nationwide more cases than ever are being prosecuted, with more people than ever being convicted and being hit with increasingly tough prison sentences, according to the Justice Department.

Allen points to figures showing that, in 1995, federal authorities prosecuted only about 50 people on child pornography charges throughout the entire country — the figure now is about 2,500 a year.

State officials say they don’t have statistics for Illinois but have seen — and are prosecuting — a growing number of cases.

“There’s no question there’s been an explosion of prosecutions and investigations, but I’m convinced we’re just scratching the surface,” said Allen.

There have been several cases in the Chicago area that have attracted attention in recent months.

In one such case, a Bartlett man was sentenced by a federal judge in Chicago last month to serve 40 years in prison for streaming video on the Internet that showed him sexually molesting an infant. Brian Annoreno, 35, broadcast the attacks in a private online chatroom, authorities said.

State’s attorneys say they’ve stepped up their efforts to fight child pornography over the past few years.

“It’s a crime that crosses all economic and social sectors of the community,” DuPage County State’s Attorney Robert Berlin said.

“The numbers are so big, they just turn your stomach,” said Mike Hood, an assistant attorney general who runs Madigan’s high-tech crimes unit. “The Internet has allowed this to explode — it has allowed all these people to connect.”

At one time, child pornography was virtually eradicated, but it’s gained new life in recent years as the Internet became available in virtually every home.

Efforts to stop the crime by policing commercial sites where the porn could be sold have largely succeeded, but that didn’t eradicate the problem.

Most Internet child porn now is traded or shared much like music or video files, often in private chatrooms, making it harder for investigators to uncover.

“It is now overwhelmingly a product of networks and file-sharing,” Allen said.

But advanced technology also is making it easier for investigators to track those trading and trafficking child porn. A decade ago, undercover investigators largely had to troll online in chatrooms, looking for someone to offer to trade or swap child porn, according to Hood and others. Now, when investigators locate online files containing child pornography, they tag them by their so-called “hash values” — a series of identifying digits, Hood said.

“Every file has a genetic fingerprint,” Hood said.

Investigators from Madigan’s office and other jurisdictions then can trace those files when they are downloaded, tracking them to a specific computer by its unique Internet protocol address.

Launching an intensive hunt for Internet viewers of child pornography last summer, Madigan’s investigators quickly found they had no shortage of targets.

Checking IP addresses, they discovered about 8,000 that were tapping the Internet to access child pornography — including graphic images showing sexual assaults of children and even infants.

“It’s disturbingly prevalent, and it just can’t be ignored,” said Madigan.

Working with local police, state investigators from Madigan’s office went after the “worst of the worst” offenders, those who trafficked heavily in the most violent, vicious child porn.

“These are truly the most horrendous, vile images,” she said, describing many of the pictures as “crime scene photos” documenting sexual attacks on children.

Once investigators identify an IP address that’s downloaded child porn, authorities can obtain search warrants for that computer and then file charges if pornography is found, Madigan said.

Since the “Operation Glass House” effort began, 22 people have been arrested statewide on child pornography charges — a crime that in Illinois can carry a 30-year prison term.

Even with stepped-up enforcement efforts, images of child pornography still abound in cyberspace.

Since 2003, the National Center for Missing & Exploited Children has used a computerized system to help review 53 million images — including 13 million last year alone, as part of its effort to help authorities identify children victimized in sexual attacks that are filmed or photographed. This year, it’s reviewing 300,000 images a week, according to Allen, the organization’s president. It’s a monumental task.

“The pictures of the kids stay out there forever,” Allen said.