Wednesday, May 31, 2006
The Supreme Court, however, held that any error was harmless because the second jury was not tainted by the trial judge's erroneous Batson ruling. No juror whom the defense challenged in the initial drawing was selected to serve on the trial jury. A defendant, according to the court, has no right to a particular jury.
Tuesday, May 30, 2006
The case that interests me most is Rapanos v. United States. The core issue in this case is whether extension of Clean Water Act jurisdiction to every intrastate wetland with any sort of hydrological connection to navigable waters, no matter how tenuous or remote the connection, exceeds Congress' constitutional power to regulate commerce among the states. The Rapanos argue that the "wetlands" in this case, which is really just a corn field, do not abut a traditional navigable water. Instead, they lie up to twenty miles away and are connected to traditional navigable waters only by means of intermittent surface flow through a long series of natural and manmade conduits. Since there is no "significant nexus" binding these wetlands with a traditional navigable waterway, then the federal government has no jurisdiction over the man's corn field. Here is a summary of the case and issues from the Pacific Legal Foundation website.
Those of you interested in the briefs can find them here.
Friday, May 26, 2006
The House gave key approval Thursday to a bill that creates a separate criminal offense for harming a fetus during an attack on the mother.
Under the "Unborn Victims of Violence Act," if a pregnant woman is the victim of a violent crime, and the fetus is also killed or injured, the suspect is charged with a separate offense.
The measure, approved 81-18, is similar to a law signed by President Bush in 2004 for federal crimes. It protects women's existing abortion rights and applies only to violent crimes.
The bill doesn't allow prosecutors to seek the death penalty solely for killing a fetus.
The Senate approved the bill in March. The House passed similar bills in 2004 and 2005 that died in the Senate.
Thursday, May 25, 2006
And the AP has this report on the results of the latest judicial election in the General Assembly.
Wednesday, May 24, 2006
The supreme court reversed, holding that:
In our view, dismissal of Douan's claim for attorney's fees, based on the doctrine of mootness, was improper. The Council contended at oral argument that Douan's claim for attorney's fees is essentially premature since the underlying merits of the civil action have yet to be adjudicated, a view at odds with the doctrine of mootness. Indeed, Douan's request for attorney's fees may be addressed only after the underlying merits have been adjudicated
I'm not too comfortable with this. While I respect the public's right to information, this bothers me from an individual privacy standpoint--especially the 75 year period. I'll post more on this later.
Tuesday, May 23, 2006
Friday, May 19, 2006
Thursday, May 18, 2006
The Code Section reads as follows:
SECTION 16-19-40. Unlawful games and betting.
If any person shall play at any tavern, inn, store for the retailing of spirituous liquors or in any house used as a place of gaming, barn, kitchen, stable or other outhouse, street, highway, open wood, race field or open place at (a) any game with cards or dice, (b) any gaming table, commonly called A, B, C, or E, O, or any gaming table known or distinguished by any other letters or by any figures, (c) any roley-poley table, (d) rouge et noir, (e) any faro bank (f) any other table or bank of the same or the like kind under any denomination whatsoever or (g) any machine or device licensed pursuant to Section 12-21-2720 and used for gambling purposes, except the games of billiards, bowls, backgammon, chess, draughts, or whist when there is no betting on any such game of billiards, bowls, backgammon, chess, draughts, or whist or shall bet on the sides or hands of such as do game, upon being convicted thereof, before any magistrate, shall be imprisoned for a period of not over thirty days or fined not over one hundred dollars, and every person so keeping such tavern, inn, retail store, public place, or house used as a place for gaming or such other house shall, upon being convicted thereof, upon indictment, be imprisoned for a period not exceeding twelve months and forfeit a sum not exceeding two thousand dollars, for each and every offense.
A bill that would eliminate common law marriages in South Carolina has sparked the beginnings of a filibuster in the Senate
S.C. Supreme Court holds that capping of landfill is an aggressive act supporting action for inverse condemnation
The Supreme Court reversed. The court held that capping was an affirmative, aggressive, positive act and that summary judgment should not have been granted.
Wednesday, May 17, 2006
Tuesday, May 16, 2006
The case had been closely watched by businesses of all types. High-tech companies said that they needed protection from "patent trolls," small companies that sue larger firms over ideas they have never developed into products.
The Supreme Court, however, held that the taxpayers--suing merely as taxpayers--lacked standing. Hence, it did not reach the commerce clause issue
Fourth Circuit holds in Title VII case that a single oral comment does not create a hostile work environment
(contributed by Sandi R. Wilson)
Monday, May 15, 2006
Friday, May 12, 2006
Thursday, May 11, 2006
Right now, the judges of the Fourth are loosely grouped as follows:
Chief Judge William W. Wilkins
Judge H. Emory Widener, Jr.
Judge J. Harvie Wilkinson III
Judge Paul V. Niemeyer
Judge Karen J. Williams
Judge Dennis W. Shedd
Judge William B. Traxler, Jr. (leans right)
Judge Allyson K. Duncan (leans left)
Judge M. Blane Michael
Judge Diana Gribbon Motz
Judge Robert B. King
Judge Roger L. Gregory
Labels are difficult, depending on the issue. For example, with "tough on crime" issues, one could easily put Judges King and Traxler (both former prosecutors) with the conservative judges. And Nixon appointee Judge Emory Widener is known to march to the beat of his own drummer, especially in the last few years. But, the above is about the best we can do as a general matter.
Right now, the conservatives have six votes out of 12. Judge Widener has indicated that his senior status will be effective as soon as his replacement is confirmed. William Haynes has been nominated as Widener's replacement, but it looks like that nomination is dead because of the torture memos.
Regarding the Boyle nomination, Democratic members of the Gang of 14 seem poised to request that Judge Boyle be recommitted to the Judiciary Committee. This would likely mean the death of his nomination as well.
With mid-term elections likely to go poorly for the GOP, it will be very difficult for a conservative nominee to sail through--especially with the Luttig seat now open. If Judge Widener decided to simply take senior status regardless of whether his replacement is confirmed, then that would leave the core conservatives with 5 votes out of 11 (maybe six in a pinch because Judge Traxler does lean toward the conservatives). If the three open seats are filled by moderates, or after the next presidential election by liberals, the conservatives could easily find themselves in the minority on many issues.
Yep, things on the Fourth--they are a changin'.
Wednesday, May 10, 2006
UPDATE: Yes, it is true. In a press release issued just minutes ago, Luttig is headed for Boeing. As senior vice president and general counsel, he will report directly to Boeing's Chairman. He will also be a member of the company's Executive Council. (Hat tip to Howard Bashman for the press release).
My guess is that after having been passed on for SCOTUS by Dubya, the lure of dollars was too great forLuttig. Most of his employment experience has been in public service. It must be difficult for a judge to watch his clerks leave and immediately make more $$ than he does. In my opinion, the bench is much poorer without him. He was one of the greatest intellects on the federal bench and should have been elevated to SCOTUS.
UPDATE II: Here is a link to the letter of resignation. (Thanks, Howard).
The opinion can be found here.
Tuesday, May 09, 2006
S.C. Supreme Court holds that order to unseal the record of a divorce proceeding is immediately appealable
Monday, May 08, 2006
Friday, May 05, 2006
The General Assembly changed the rules of the game with Act 153, under which old TERI participants are now required "to pay to the system the employee contribution as if a program participant were an active contributing member,"while gaining no additional service credit. The Supreme Court held that Act 153 was improper because the old TERI statute created a contract with state employees. Act 153 sought to materially alter terms which formed a substantial part of the basis for the bargain struck between the State and old TERI participants.
Thus, the Court found that "the provision of the old TERI statute created a binding contract and hold that the State breached that contract by applying the requirements of Act 153 to old TERI participants enrolled prior to July 1, 2005."
Thursday, May 04, 2006
Wednesday, May 03, 2006
For those of you interested in popular culture, this is the Anna Nicole Smith case.
Pleicones offered this dissent:
The first question is not whether the PCR court erred in finding counsel's performance deficient in failing to make a Brady request, but rather there is any evidentiary support in the record for the finding. Cherry, supra. While I may not have reached the same conclusion as the PCR judge regarding counsel's performance, I cannot say it lacks evidentiary support especially in light of trial counsel’s testimony that he did no independent investigation but instead relied solely on information supplied by law enforcement and by the solicitor's office.
The second question is whether the record contains any evidence of probative value to support the PCR judge's finding that Porter established prejudice as the result of this deficient performance, that is, evidence that but for counsel's deficient performance Porter would not have pled guilty but would have insisted on going to trial. In my opinion, Porter's testimony that he would not have pled had he had all relevant information is sufficient to uphold the PCR judge's prejudice finding. E.g., Solomon v. State, 313 S.C. 526, 443 S.E.2d 540 (1994) (great appellate deference to PCR judge's credibility findings required Court to uphold judge's determination even where testimony at PCR hearing flatly contradicted by trial record).
While I may not have made the same findings as did the PCR judge on the failure to file a Brady motion claim, under our limited scope of review these findings should be upheld. Cherry, supra. I therefore respectfully dissent, and would affirm the grant of PCR to Porter
Tuesday, May 02, 2006
The background of the Holmes case is as follows. On New Year's Eve in 1989 an 86-year-old woman was beaten, robbed and assaulted in her home. She later died of her injuries. Bobby Lee Holmes was arrested and charged with the woman's murder. Blood and fingerprint evidence linked Holmes to the crime. His lawyers said Holmes was innocent and pointed to witnesses who had seen another man, Jimmy White, near the woman's house on the night of the murder. Four witnesses said at a preliminary hearing that they had heard White admit to the crime or say Holmes was innocent. The trial judge excluded this evidence from Holmes' trial because prosecutors had "strong forensic evidence" of his guilt. He was convicted and sentenced to death.
The Supreme Court held that the rule applied in this case deprived Holmes of his constitutional rights. The efficacy and logic of the rule, according to the Court, depends on an accurate evaluation of the prosecution's proof, and the true strength of the prosecution's proof cannot be assessed without considering challenges to the reliability of the prosecution's evidence. Just because the prosecution's evidence, if credited, would provide strong support for a guilty verdict, it does not follow that evidence of third-party guilt has only a weak logical connection to the central issues in the case. Such credibility and reliability determinations are for the triers of fact and not the courts.
Writing for the unanimous Court, Justice Alito made this point about the South Carolina rule:
The rule applied in this case is no more logical than its
converse would be, i.e., a rule barring the prosecution from
introducing evidence of a defendant's guilt if the defendant
is able to proffer, at a pretrial hearing, evidence that, if
believed, strongly supports a verdict of not guilty. In the
present case, for example, the petitioner proffered
evidence that, if believed, squarely proved that White, not
petitioner, was the perpetrator. It would make no sense,
however, to hold that this proffer precluded the prosecu-
tion from introducing its evidence, including the forensic
evidence that, if credited, provided strong proof of the petitioner's guilt.
Monday, May 01, 2006
Appellate judges read a lot of these things day in and day out and like any human beings, they (and I include myself) are more likely to be persuaded by fewer strong points (four or less) that are thoroughly and logically analyzed against the background of the facts and prevailing law, than anything the members of the audience (remember, these are the folks you are trying to persuade) find "excessively wordy and repetitive."This post is worth a read and offers some good advice on drafting arguments.