Friday, June 30, 2006

SCOTUS rejects Gitmo military courts

In HAMDAN v. RUMSFELD, the Supremes, in a 5-3 vote, said the military tribunals set up to try suspected terrorists violated both U.S. military law and the Geneva Conventions.

A news article on the decision can be found here.

Over at SCOTUS Blog, there is excellent commentary on the decision.

Thursday, June 29, 2006

S.C. Supreme Court holds that prosecutor's "King Kong" comments not inflammatory

In State v. Bennett, Bennett was convicted of murder and sentenced to death. During the course of the proceedings, the solicitor referred to the defendant as "King Kong" and the victim as the "blond lady," tying them to the recent motion picture. Bennett, a black man, argued that this unnecessarily injected race into the proceedings. The Supreme Court disagreed. According to the Court:

The comment referred to Appellant's immense size, strength, and the destructiveness of his previous crimes. In this case, the trial court properly determined that Appellant's size and strength were probative of the aggravating circumstance of physical torture, which the court charged to the jury. In this regard, the Solicitor's use of the term "King Kong" was not suggestive of a giant black gorilla who abducts a white woman, but rather, descriptive of Appellant's size and strength as they related to his past crimes.

Wednesday, June 28, 2006

SCOTUS holds IDEA does not authorize expert fees for prevailing party

In Arlington Central School District v. Murphy, SCOTUS considered whether the Individuals with Disabilities Education Act ("IDEA"), which provides that a court "may award reasonable attorneys' fees as part of the costs" to parents who prevail in an action brought under the Act, also authorizes prevailing parents to recover fees for services rendered by experts. SCOTUS based its decision on the Spending Clause. When Congress attaches conditions to acceptance of federal funds, the conditions must be set out unambiguously. States cannot knowingly accept conditions of which they are "unaware" or which they are "unable to ascertain."

In examining the words of the statue, SCOTUS held that costs is a term of art that generally does not include expert fees--unlike the term "expenses" which is much broader. Hence, the statutory language does not support the payment of expert fees and even if that were an intended result of this congressional legislation, the States did not receive clear notice under the Spending Clause of the condition.

Tuesday, June 27, 2006

SCOTUS holds that it is a Sixth Amendment violation to deny defendant first choice of counsel

In United States v. Gonzalez-Lopez, a criminal defendant was on trial for possession and distribution of marijuana. The district court, however, denied his paid attorney of choice pro hac vice admission and the defendant had to proceed to trial with another lawyer.

The Government argued that the Sixth Amendment only protects the right to competent, paid counsel, not the lawyer of the defendant's choice. The Government further contended that the Sixth Amendment violation is not "complete" unless the defendant can show that substitute counsel was ineffective within the meaning of Strickland v. Washington. SCOTUS disagreed.

SCOTUS noted that the right at stake was the right to counsel of choice, not the right to a fair trial. SCOTUS described the error as "structural" and held that the error violated respondent's Sixth Amendment right to counsel of choice and that this violation is not subject to harmless error analysis.

Fourth Circuit decides USERRA case

Francis v. Booz, Allen & Hamilton, __ F.2d __ (4th Cir. June 22, 2006) was a case arising under the Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA). The Fourth Circuit was asked to consider the parameters of sections 4311(a) and 4312(a). The Court held that section 4312 only entitles a service person to immediate reemployment and does not prevent an employer from terminating any employee reemployed under this section the following day. Section 4311, however, expands the rights of covered individuals by prohibiting discrimination against such persons when their status as a member of the armed forces is a motivating factor for the alleged prohibited conduct.

In the case before the Court, the uncontroverted evidence was that Francis had repeated attendance and related performance issues that resulted in her probation and ultimately her termination. Therefore, no inference existed that the alleged discrimination was motivated by her status as a member of the armed forces. The Court further determined that the retaliation claim was without merit because the actions that resulted in Francis' probation and termination occurred prior to her protected activity.

(contributed by Sandi Wilson)

SCOTUS broadens anti-retaliation provisions of Title VII

In Burlington Northern & Santa Fe Railway v. White, __ U.S. __ (June 22, 2006), the Respondent, White, raised causes of action under Title VII alleging discrimination on the basis of sex and unlawful retaliation. White, a forklift operator, complained that her supervisor was harassing her on the basis of her sex. Following her complaint the supervisor was disciplined, but her duties as a forklift operator were relinquished and she was assigned to other tasks. She filed a charge with the EEOC claiming that the reassignment constituted retaliation. Shortly thereafter, she was suspended without pay for 37 days which led to a second charge of retaliation. The Company reversed its decision and reinstated her with back pay. The question before the Court was whether the anti-retaliation provision of Title VII prohibits actions that are not directly related to employment or do not occur at the workplace.

The Court concluded that the anti-retaliation provision does extend to such employer actions provided that a reasonable employee would consider the action taken materially adverse (i.e., harmful to the point that the action could dissuade a reasonable worker from making or supporting a charge of discrimination). The Court reasoned that an employer can effectively retaliate against an employee by taking actions not directly related to his employment or by causing the employee harm outside of the workplace and in so doing expressly determined that the anti-retaliation provisions of Title VII are broader in scope than the anti-discrimination provisions. Under this reasoning the Court found that a sufficient evidentiary basis existed to support the jury's verdict on White's retaliation claim because it was not required to find that the challenged actions related to the terms or conditions of White's employment.

(contributed by Sandi Wilson)

Monday, June 26, 2006

South Carolina public defenders prepare for more cases

From the Times and Democrat:

Public defenders across South Carolina are preparing to get a number of new cases after the state increased penalties for domestic violence and the U.S. Supreme Court ruled more defendants have a right to an attorney.

The high court ruling in an Alabama case likely means any defendant facing jail time, even as little as 30 days, is entitled to a lawyer, said T. Patton Adams, executive director of the South Carolina Commission on Indigent Defense.That could mean public defenders would have to serve all indigent defendants even in magistrate's court, Adams said.

The state's tougher domestic violence laws, which increase jail time and fines, also will mean more defendants will have the right to a lawyer.

Will Cockburn murderess get the death penalty?

It has been 60 years since South Carolina executed a woman, but that could be the fate of Jennifer Annette Holloway. She was convicted Friday of acting in concert with her husband to murder Sara Lee executive Jim Cockman. The couple wrapped his head in duct tape and the man suffocated.

A news story on the trial can be found here.

Friday, June 23, 2006

Fourth Circuit affirms removal of ERISA fiduciaries

In CHAO v. MALKANI, the Fourth Circuit upheld a court order requiring Information Systems and Networks (ISN), Bethesda, Maryland, and its president to pay more than $700,000 to the firm's pension and profit sharing plans. The payment is restitution for contributions the employer failed to make from 1995 through 2003. Because of transgressions, in 2003 the plan fiduciaries, including company president and plan administrator Roma Malkani, were removed from their positions for violating the Employee Retirement Income Security Act (ERISA). The fiduciaries had attempted to transfer money from the plan to the company as reimbursement for expenses they claimed were incurred from 1994 through 2000.

In affirming the district court, the Fourth Circuit noted that "while ERISA fiduciaries should not be removed lightly, we conclude that defendants' actions --including attempts to raid the plan's assets and deprive employees of vested benefits --constitute an egregious misuse of authority that justified the district court's remedies."

SC Supreme Court promulgates rules governing interpreters

These new rules are effective immediately.

Thursday, June 22, 2006

SCOTUS clarifies what are testimonial statements

In Davis v. Washington, SCOTUS considered when statements made to law enforcement personnel during a 911 call or at a crime scene are "testimonial" and thus subject to the requirements of the Sixth Amendment's Confrontation Clause. In this case, a 911 operator learned that Davis had hit his girlfriend and was fleeing the scene. The operator also gathered more information about Davis (including his birthday), and learned that Davis had told the girlfriend that his purpose in coming to the house was "to get his stuff," since the girlfriend was moving.

At trial, the State's only witnesses were the two police officers who responded to the 911 call. Both officers testified that the girlfriend exhibited injuries that appeared to be recent, but neither officer could testify as to the cause of the injuries. The girlfriend refused to testify. Over Davis's objection, based on the Confrontation Clause of the Sixth Amendment, the trial court admitted the recording of her exchange with the 911 operator, and the jury convicted him.

In Crawford v. Washington, 541 U. S. 36, 554 (2004), SCOTUS held that the Confrontation Clause bars "admission of testimonial statements of a witness who did not appear at trial unless he was unavailable to testify, and the defendant had a prior opportunity for cross-examination." The Court, however, did not define testimonial statements. With Davis, the Court did supply a definition:

Statements are nontestimonial when made in the course of police interrogation under circumstances objectively indicating that the primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency. They are testimonial when the circumstances objectively indicate that there is no such ongoing emergency, and that the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution.

The Court found that the statements made to the 911 operator were not testimonial. In so holding, the Court noted that the girlfriend was not describing past events, but was speaking about events as they were actually happening. Any reasonable listener would recognize that she was facing an ongoing emergency. Finally, the nature of what was asked and answered was such that the elicited statements were necessary to be able to resolve the present emergency, rather than simply to learn what had happened in the past.

SCOTUS approves suspicionless searches of parolees

In Samson v. California, the Court considered the constitutionality of a state statute providing that upon release on state parole, the inmate "shall agree in writing to be subject to search or seizure by a parole officer or other peace officer at any time of the day or night, with or without a search warrant and with or without cause." In this case, Samson was stopped on the street by a police office, a suspicionless search was conducted, and drugs were discovered. At trial, Samson moved to suppress the evidence, but his motion was denied.

In determining whether the search violated the Fourth Amendment, SCOTUS applied a totality of the circumstances test. In balancing the liberty interest versus the state's interests, the Court noted that the "ability to conduct suspicionless searches of parolees serves [the state's] interest in reducing recidivism, in a manner that aids, rather than hinders, the reintegration of parolees into productive society." The fact that a parolee is still under much state supervision and restrictions coupled with the state's interest in reducing recidivism, persuaded the Court that the statute did not violate the Fourth Amendment.

Wednesday, June 21, 2006

S.C. Court of Appeals holds that there is no appellate jurisdiction in fee dispute cases

In Wright v. Dickey, the Court of Appeals considered an appeal from a decision of the Resolution of Fee Disputes Board of the South Carolina Bar. The Court noted that Rule 20 within SCACR Rule 416 provides that a party may appeal a final decision of the Board to the circuit court on certain limited grounds. No mention is made of further appeal and therefore no further appeal is authorized.

Supreme Court holds that in PCR setting decision whether to seek writ of cert is within attorney's discretion

In Douglas v. State, the Supreme Court considered whether the circuit court erred in granting leave to appeal in a PCR context where petitioner's direct appeal attorney did not to pursue discretionary review. Apparently, the PCR judge granted petitioner the right to seek a belated writ of certiorari to review the Court of Appeals' decision on direct appeal under the belief that case law compelled the attorney to seek a writ even though the attorney saw no merit in the appeal. The Supreme Court reversed, holding that the decision whether to pursue certiorari is a matter left solely to the appellant's attorney's professional discretion.

Tuesday, June 20, 2006

SCOTUS decides Rapanos wetlands case

In Rapanos v. United States, SCOTUS considered whether four Michigan wetlands, which lie near ditches or man-made drains that eventually empty into traditional navigable waters, constitute "waters of the United States" within the meaning of the Clean Water Act, making the "wetlands" fall under the jurisdiction of the Army Corps of Engineers. The Act makes it unlawful to discharge dredged or fill material into "navigable waters" without a permit, and defines "navigable waters" as "the waters of the United States, including the territorial seas." The Corps, which issues permits for the discharge of dredged or fill material into navigable waters, interprets "the waters of the United States" expansively to include not only traditional navigable waters, but also wetlands "adjacent" to such waters and tributaries.

According to the plurality opinion, the Corps has also "asserted jurisdiction over virtually any parcel of land containing a channel or conduit--whether man-made or natural, broad or narrow, permanent or ephemeral--through which rainwater or drainage may occasionally or intermittently flow. On this view, the federally regulated 'waters of the United States' include storm drains, road-side ditches, ripples of sand in the desert that may contain water once a year, and lands that are covered by floodwaters once every 100 years."

This case concerned Rapanos' cornfield, which included 54 acres of land with sometimes-saturated soil conditions. The nearest body of navigable water was 11 to 20 miles away. Regulators informed Mr. Rapanos that his fields were "waters of the United States," that could not be filled without a permit. Twelve years of criminal and civil litigation ensued.

Justice Scalia, writing for a the plurality, rejected the government's broad interpretation of "waters of the United States." Using the canons of statutory construction and giving Chevron difference to the Corps' broad interpretation, the Scalia held that the Act's use of the traditional phrase "navigable waters" confirms that it confers jurisdiction only over relatively permanent bodies of water--not ditches and cornfields. The government expansive interpretation also implicated federalism concerns, and Scalia noted that the result would be a "significant impingement of the States' traditional and primary power over land and water use."

The result was that SCOTUS remanded the case "to determine if these wetlands are covered 'waters of the United States,' and because of the paucity of the record in both of these cases, the lower courts should determine, in the first instance, whether the ditches or drains near each wetland are 'waters' in the ordinary sense of containing a relatively permanent flow."

Because there was only a plurality opinion, uncertainty has been injected into the law. This one could be a mess for the lower courts to sort out.

Monday, June 19, 2006

Fourth Circuit upholds North Carolina's comity admission requirements

In MORRISON v. BOARD OF LAW EXAMINERS, Morrison sought admission to the North Carolina bar under its comity rules and was denied admission. In North Carolina, if an applicant is duly licensed to practice law in a state having comity with North Carolina and has practiced in a state having comity for four out of the last six years, the applicant is eligible for admission. Morrison had not practiced four out of the last six years in a state with comity and thus was denied admission to the North Carolina bar. He challenged this denial on constitutional grounds. The district court granted summary judgment for Morrison, but the Fourth Circuit reversed. According to the panel:

However, the negative impact on Morrison does not render the rule invalid. North Carolina is not discriminating against citizens of other States in favor of her own. The rule simply represents North Carolina's "undertaking to secure for its citizens an advantage by offering that advantage to citizens of any other state on condition that the other state make a similar grant."

Friday, June 16, 2006

SCOTUS holds exclusionary rule inapplicable in knock-and-announce cases

In Hudson v. Michigan, the police obtained a warrant authorizing a search for drugs and firearms at the home of Booker Hudson. They knocked on the door, waited about 3-5 seconds before entering, and discovered large quantities of drugs and loaded gun. Hudson was charged under Michigan law with unlawful drug and firearm possession. The case reached the Supremes because Hudson moved to suppress all the inculpatory evidence, arguing that the premature entry violated his Fourth Amendment rights. The Michigan Court of Appeals held that the evidence should not have been suppressed and a 5-4 majority of SCOTUS agreed. According to the Court (in an opinion authored by Scalia):

In other words, exclusion may not be premised on the mere fact that a constitutional violation was a "but-for" cause of obtaining evidence. Our cases show that but-for causality is only a necessary, not a sufficient, condition for suppression. In this case, of course, the constitutional violation of an illegal manner of entry was not a but-for cause of obtaining the evidence. Whether that preliminary misstep had occurred or not, the police would have executed the warrant they had obtained, and would have discovered the gun and drugs inside the house.

. . .

[Mapp v. Ohio and similar cases] say nothing about the appropriateness of exclusion to vindicate the interests protected by the knock-and-announce requirement. Until a valid warrant has issued, citizens are entitled to shield "their persons, houses, papers, and effects," U. S. Const., Amdt. 4, from the government's scrutiny. Exclusion of the evidence obtained by a warrantless search vindicates that entitlement. The interests protected by the knock-and-announce requirement are quite different and do not include the shielding of potential evidence from the government's eyes.

. . .

What the knock-and-announce rule has never protected, however, is one's interest in preventing the governmentfrom seeing or taking evidence described in a warrant. Since the interests that were violated in this case have nothing to do with the seizure of the evidence, the exclusionary rule is inapplicable.

The dissent suggests that the majority opinion destroyed "the strongest legal incentive to comply with the Constitution's knock-and-announce requirement" by holding the evidence need not be suppressed if the police ignore the knock-and-announce rule.

Thursday, June 15, 2006

Fourth Circuit holds that without a 3553(e) motion, a sentence may dip below statutory minimum

In UNITED STATES v. ALLEN, the Fourth Circuit examined a sentence below the statutory minimum where there was no specific motion pursuant to Section 3553(e). The government argued that it was standard policy for the U.S. Attorney for the District of Maryland to consider a motion made pursuant to 5K1.1 to include a 3553(e) motion. The Court rejected this argument, noting that "there simply is no evidence in the record, other than the parties' unsupported allegations, suggesting that this policy, which is incongruous with settled precedent from this court and the United States Supreme Court, does, in fact, exist." Hence, in the absence of a specific motion pursuant to 3553(e), a sentence below the statutory mandatory minimum is not permitted.

S.C. Court of Appeals holds that constitutional concerns are not implicated when civil and criminal matters are pending at same time

In South Carolina Department of Social Services v. Walter, the Court of Appeals considered whether William Nelson's due process and equal protection rights were violated by the fact that the family court intervention action proceeded to trial while related criminal charges were also pending against him. Nelson was alleged to have sexually abused a 16 year old girl and allowed her to smoke marijuana. At the family court probable cause hearing, Nelson appeared with counsel and raised concerns that he might not be able to testify due to pending criminal charges. The family court denied the request to hold the family intervention action in abeyance pending resolution of the criminal charges. A trial was held, and the family court found that Nelson had sexually abused the girl. Nelson did not testify at the hearing.

The Court of Appeals found no constitutional violation. According to the Court, there is nothing inherently repugnant to due process in requiring a party to choose between giving testimony at a family court hearing and keeping silent, even though giving testimony at the hearing may damage his criminal case and keeping silent will most likely lead to an adverse ruling in the family court proceeding.

Wednesday, June 14, 2006

S.C. Court of Appeals issues employee handbook opinion

In a continuing trend, the South Carolina Court of Appeals upheld the dismissal of a cause of action for breach of contract based on an employee handbook. (Grant v. Mount Vernon Mills, Inc. Opinion No. 4122 (June 12, 2006). The plaintiff, Cynthia Grant, who was employed as a salaried Pension Benefits Manager at Mount Vernon Mills, was summarily terminated without warning for poor work performance and attitude. She argued that the termination provision in the company's employee handbook altered her at-will status. Specifically, Grant pointed to the fact that the handbook did not contain a conspicuous disclaimer. She also presented evidence by affidavit that other salaried employees routinely received warnings prior to termination. The Court rejected both of these arguments. According to the Court, the lack of a conspicuous disclaimer was not relevant because the termination policy expressly stated that it did not apply to salaried employees. The Court found that this was true notwithstanding the fact that the handbook had general statements relating "fair and just" treatment and it went on to opine that even if the termination policy could be construed as applying to Grant, nothing in the policy was couched in mandatory terms and therefore it did not contain promises enforceable in contract. With regard to the issue of whether other employees were issued warnings, the Court declined to recognize a contractual claim premised on an alleged practice stating, "Absent a contract of employment or other legally cognizable claim, courts have no business interfering with employers' decisions to warn or fire at-will employees."

(contributed by Sandi R. Wilson)

SCOTUS eases process for death row appeals

In Hill v. McDonough, Clarence E. Hill challenged the constitutionality of a three-drug sequence the State of Florida likely would use to execute him by lethal injection. Seeking to enjoin the procedure, he filed in the United States District Court a Section 1983 suit. The District Court and the Court of Appeals for the Eleventh Circuit construed the action as a petition for a writ of habeas corpus and ordered it dismissed for noncompliance with the requirements for a second and successive petition. The Supreme Court held that this was error and that Hill should have been allowed to proceed under Section 1983.

In House v. Bell, the Court considered the procedural default rule in connection with a petition for habeas corpus. Twenty years ago, a jury convicted Paul Gregory House for murder and sentenced him to death. Since then, new revelations cast doubt on the jury's verdict. House sought access to federal court to pursue habeas corpus relief based on constitutional claims that were procedurally barred under state law. As a general rule, federal courts are closed to claims that state courts would consider defaulted. The Supreme Court held that the DNA evidence discovered was an exceptional circumstance involving a compelling claim of actual innocence and thus the state procedural default rule cannot bar a federal habeas corpus petition.

Here is a news story from the Boston Globe on the two opinions.

SCOTUS Blog has this post.

Tuesday, June 13, 2006

S.C. Court of Appeals issues opinion on self defense jury charge

In State v. Lockamy, Dana Lockamy was sentenced to 30 years for the murder of his brother James. James had beaten Dana and Dana returned to the scene with a pistol. When James went to strike Dana with a wrench, Dana was able to locate and disengage the safety on the gun and pump a shell into the chamber. According to the testimony, James dropped the wrench and started to run away. Dana then stood up and walked a short distance holding the gun down by his side. As James ran away, Dana said "don't ever beat me in my head and face like that again, and don't ever come to our father's home and harm him in any way or there will be no warning shot fired the next time." Dana then shot James in the back.

Dana alleges the trial court erred in failing to charge the jury on self defense. The Court of Appeals affirmed the trial court because Dana could not show that he had no other probable means of avoiding the danger.

S.C. Supreme Court holds that in condemnation action accrual of interest cannot be stopped by Rule 67

In SCDOT v. First Carolina, SCDOT condemned property of First Carolina and a jury trial was held to determine the proper amount of compensation due and owing. The jury returned a verdict of $1,990,975.00; of which $640,300.00 was for the land acquired and $1,350,675.00 for the damage to the remainder.

Pursuant to Rule 67, SCRCP, SCDOT also sought to deposit with the court the judgment amount plus accrued statutory interest, less the draw down amount, while it pursued an appeal. First Carolina objected. However, the court granted SCDOT's motion, allowing it to deposit the funds and stop the accrual of post judgment interest. First Carolina then appealed, questioning whether the trial court err by allowing SCDOT to deposit the judgment amount pursuant to Rule 67, SCRCP, in order to stop the accrual of post-judgment interest.

The Supreme Court held that the Eminent Domain Procedure Act, which requires post judgment interest to be added to any judgment which is not paid within the twenty day period, trumps the provisions of Rule 67 allowing the deposit of the judgment amount to stop accrual of interest.

Monday, June 12, 2006

Judge Orders a Game of 'Rock, Paper, Scissors' to Settle Dispute

File this one under "When Lawyers Act Like Children."

Decisions by the Judicial Merit Selection Commission are Nonjusticable

In South Carolina Public Interest Foundation v. South Carolina Judicial Merit Selection Committee, the trial court found that the issue of whether the Judicial Merit Selection Commission (Commission) properly evaluated a candidate seeking election to a circuit court seat was a nonjusticiable political question. The Supreme Court affirmed:

[T]he State Constitution, in unequivocal terms, vests the power to determine the qualifications for judicial candidates in the General Assembly. Were we to review this case, this Court would be delving into the decision making process of the very body that determines whether the members of this Court are qualified to seek election to the bench. We decline to put the judiciary in a position that would interfere with the selection of its very own members. Accordingly, we hold that the issue of whether Mullen was properly qualified is a nonjusticiable political question.

Wednesday, June 07, 2006

Suspect held in murder of Clemson student

The suspect is a registered sex offender. Props to the authorities for the quick work on this one.

Loss-of-companionship awards in a pet death cases

File this under legal news of the weird. It seems that an Oregon lawyer has too much time on his hands and spends too much time with his pets.

SCOTUS to revisit race based school assignments

This is a huge case. Considering the change in composition of the Court with Alito and Roberts, I would bet that the Court prohibits use of race in assigning students to public schools.

Tuesday, June 06, 2006


There is a good post with the above title over at Virginia Appellate News and Analysis. Some good points on oral argument preparation. (Hat tip to Have Opinion).

I personally don't believe that oral argument serves much of a purpose in this age of lengthy briefs, reply briefs, and multivolume JAs. I'd say oral argument makes a difference in less than 5 percent of the cases. But, it's still nice to make that trip and feel like you had an opportunity to be heard.

S.C. Supreme Court holds that statement in PCR application that petitioner would have not have pled guilty is insufficient without testimony

In Smith v. State, the Supreme Court reversed the granting of relief in a PCR proceeding. In Smith, the prisoner did not testify at the PCR hearing that he would have not pled guilty absent trial counsel's erroneous advice. He did much such a contention in the PCR application. The statement in the PCR application, according to the Supreme Court, was insufficient.

Respondent's failure to take the stand resulted in a failure of proof-- i.e. the allegation in the complaint that he would not have pled guilty was not proven because of Respondent's reluctance to testify to that assertion. An applicant seeking relief from a guilty plea must present probative evidence to support the allegations in the PCR application that but for trial counsel's erroneous advice, the applicant would not have pled guilty.

Monday, June 05, 2006

Questioning the ABA's role in rating judicial nominees

The Weekly Standard has this piece that deals with the ABA procedure employed against Brett Kavanaugh, who was recently confirmed to the D.C. Circuit.

Should jurors be permitted to question witnesses?

According to this op-ed, the approach has worked well (so say the lawyers and judges involved) and results in a better informed jury. (Hat tip How Appealing)

Friday, June 02, 2006

S.C. Supreme Court affirms TERI ruling and remands for consideration of attorney fees

I posted earlier this month about the Supreme Court's decision that the State should not have deducted pension contributions from 14,000 working retirees. Now, the Court has denied petitions for rehearing and has remanded the attorney fee issue to Judge Breeden.

There is speculation that the lawyers could receive close to $50 million in fees.

Jessica's Law awaits governor's signature

Under Jessica's Law, violent sex offenders against children 11 and under in South Carolina would be sentenced to at least 25 years in prison for their first offense. Their second offense would make them eligible for the death penalty.

I question this use of the death penalty in this situation, but expect the governor to sign this bill.

Poker players challenge 200-year-old gaming law that bans games of cards and dice.

Earlier this month, I posted about the police raid on a private poker game and use of an archaic law to charge the players with a crime. Well, it appears the poker players will be challenging the law in court.

The AP has this report.

Thursday, June 01, 2006

"I'm sorry legislation" receives third reading in S.C. House and is enrolled for ratification

Here is the relevant portion of the bill:

In any claim or civil action brought by or on behalf of a patient allegedly experiencing an unanticipated outcome of medical care, any and all statements, affirmations, gestures, activities, or conduct expressing benevolence, regret, apology, sympathy, commiseration, condolence, compassion, mistake, error, or a general sense of benevolence which are made by a health care provider, an employee or agent of a health care provider, or by a health care institution to the patient, a relative of the patient, or a representative of the patient and which are made during a designated meeting to discuss the unanticipated outcome shall be inadmissible as evidence and shall not constitute an admission of liability or an admission against interest.

This is more malpractice reform and we be helpful in the defense of health care providers.

S.C. Court of Appeals issues instructive opinion on burden shifting under Batson

In State v. Cochran, the State Court of Appeals held that the trial court's handling of a Batson hearing in effect placed the burden on Appellants to prove the absence of purposeful discrimination even after Appellants articulated race-neutral reasons for their strikes. Because jurors properly struck were seated on a second jury, which found Appellants guilty, the error was reversible.

Here's an example of some of the trial court's faulty reasoning:

Defense counsel struck Juror 78, a white woman, because she was the wife and office manager of a prominent dentist in the community. The employment status of a prospective juror is a race-neutral reason for using a peremptory challenge. Before the State had an opportunity to carry its burden by showing pretext, the trial court asked defense counsel if he knew Juror 78. The trial court held that the strike violated Batson because the defense attorney did not know the juror and it was improper "to prejudice somebody by their position."

S.C. Supreme Court holds that localities cannot ban possession of pleasure boats used for gambling

In Palmetto Princess v. Town of Edisto Beach, the state supreme court once again considered gambling issues. Section 58-138 of a local Edisto ordinance prohibits the possession of a gambling device on a vessel within the waters of the municipal boundaries of Edisto operated for the purposes of conducting a day cruise. In a DJ action, the trial court held that this ordinance violates South Carolina Code Ann. 5-7-30: "Each municipality of the State . . . may enact . . . ordinances, not inconsistent with the Constitution and general law of this State, . . . for preserving health, peace, order, and good government in it . . . ." (Emphasis added). Because it is not against state law to have a gambling day cruise, the Supreme Court agreed that Edisto's ordinance is unconstitutional.