Wednesday, May 31, 2006

SCOTUS holds that First Amendment does not protect comments made by public employees

In GARCETTI v. CEBALLOS, the Supreme Court decided whether the First Amendment protects a government employee from discipline based on speech made pursuant to the employee's official duties. The majority (5-4) held that the First Amendment does not provide protection for comments that a public employee makes in the course of his typical duties, even if the comments alleged public corruption or government wrongdoing. Supervisors are free to impose discipline for comments considered disruptive or in violation of the entity's policy.

S.C. Supreme Court holds trial court erred in closing the courtroom to the press

In Ex parte Hearst-Argyle Television, Inc., the Supreme Court considered whether a trial judge was warranted in closing a suppression hearing because of concerns about racial issues and the "hot button" issue of domestic violence. The Supreme Court reversed and held that the reasons offered in support of closing the courtroom were insufficient to justify infringing upon the state and federal constitutional guarantees of open courts. The trial court's justifications were more accurately re-characterized as concerns regarding additional pre-trial publicity and its possible effect on being able to draw an impartial jury. Because closing the suppression hearing had no effect on preventing additional publicity of the trial, the trial court erred.

S.C. Supreme Court holds erroneous granting of Batson motion to be harmless error

In State v. Rafield, the Supreme Court considered the granting of an improper Batson motion. During the initial jury selection, the defense exercised peremptory challenges against five members of the jury venire: five white females, one of whom was a potential alternate, and one white male. The petit jury selected was composed of nine males and three females. The alternates were one male and one female. The State argued that the defense had discriminatorily challenged female jurors, but the State also argued that Petitioner had discriminatorily challenged one male juror, the only male he challenged. The trial judge agreed there was a violation regarding the male juror even though the defense give a gender-neutral reason for the strike. A new jury was drawn.

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

What to expect as the SCOTUS term ends

David Savage at the LA Times has this article. Savage notes that "the justices tend to put off the most difficult cases to the end of the term, and this one is no different. The court faces major decisions on terrorism tribunals, wetlands protection, lethal injection, domestic violence prosecutions and campaign finance limits."

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

South Carolina House approves Unborn Victims of Violence Act

According to the Sun News:

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

Judge Boyle's former law clerks defend his service on the bench

Salon has this article about efforts to defend the Fourth Circuit nomination of longtime federal district Judge Terrence W. Boyle of North Carolina.

Debate continues on number of black judges in SC

Debate on number of black judges in the state grows with ALJ seat and circuit court seat voting in the General Assembly. The State newspaper his this article.

And the AP has this report on the results of the latest judicial election in the General Assembly.

Wednesday, May 24, 2006

S.C. Court of Appeals issues opinion on fee shifting statute

In Douan v. County of Charleston, Douan challenged an ordinance imposing a sales tax. Proceedings were instituted in the circuit court and the Charleston County Election Commission. In the Commission action, the supreme court ultimately voided the referendum results. The previously filed civil action was called for trial in the Charleston County court of common pleas and Douan moved the circuit court for summary judgment on the issue of attorney's fees under section 15-7-300. The County moved to dismiss the civil action on the ground of mootness pursuant to Rule 12(b)(6). The circuit court denied Douan's motion, and granted the Council's motion to dismiss, holding that the supreme court opinion ended the case in Douan's favor, rendering the claim for attorney's fees under section 15-77-300 moot.

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

The South Carolina Bar votes to post disciplinary records on the internet

According to reports, disciplinary action will be up on the web for of 75 years. Interim and administrative suspensions will remain posted only while they are effective.

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

SCOTUS decides ERISA case and resolves a spit in the circuits

The opinion is not up yet on the SCOTUS web site, but according to CCH, the U.S. Supreme Court has unanimously upheld a decision by the U.S. Court of Appeals for the Fourth Circuit allowing a health plan administrator to obtain reimbursement under a subrogation clause from a participant who had recovered from a third party in a tort action. According to the Court, the health plan's claim for reimbursement was equitable in nature, and, as a result, the plan properly sought equitable relief under ERISA 502(a)(3). The High Court's opinion resolves a split among the Circuit Courts of Appeal.

S.C. Supreme Court holds county cannot ban gambling on day cruises

In Palmetto Princes v. Georgetown County, the County claimed authority to enact an ordinance prohibiting gambling day cruises. The County contended the Johnson Act allows a local government, rather than just a state government, to enact a law prohibiting gambling day cruises. The Supreme Court affirmed a grant of summary judgment in favor of Palmetto, holding that the plain language of the Johnson Act indicates that only a State, not a division of the state government such as the County, can act to prohibit gambling day cruises.

Friday, May 19, 2006

Fourth Circuit holds that sanctions for violation of Rule 11 are required in securities action

In MORRIS v. WACHOVIA SECURITIES, INC., the Fourth Circuit has a good discussion of Rule 11 and its requirements in securities actions. This case concerned a failure to sanction lawyers for misstatements. At the end of a private securities fraud action, the district court must evaluate on the record whether each party and lawyer complied with Rule 11(b) "as to any complaint, responsive pleading, or dispositive motion" filed. In this case, the district court found three Rule 11(b) violations by Morris's counsel: the unsubstantiated stock loan claim in the original and first amended complaints, the selective citation of testimony in the brief opposing summary judgment, and the mischaracterization testimony in that same brief. The district court declined to impose sanctions, but the Fourth Circuit reversed and remanded. The panel held that the Private Securities Litigation Reform Act mandates a sanction in any private securities action where a party or lawyer violates Rule 11(b).

Thursday, May 18, 2006

S.C. Police raid private poker game and issue citations under 1802 law

Mount Pleasant police arrested 22 people for playing poker in a Mt. Pleasant private home. Police seized nearly 6 thousand dollars of profits. The players were charged under Section 16-19-40 of the South Carolina Penal Code, which dates back to 1802 and forbids nearly all games with dice or cards,even if no money is involved.

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

The Daily Comet has this report.

Charges against Terrence Boyle

Ed Whelan has this essay on the controversy over Judge Boyle's nomination to the Fourth Circuit Court of Appeals.

S.C. Supreme Court holds that capping of landfill is an aggressive act supporting action for inverse condemnation

In WRB, LP v. County of Lexington, the County capped a landfill in an effort to deal with a methane gas problem. Landowner brought an inverse condemnation action alleging a migration of methane to Landowner's property resulted. This capping diverted the vertical migration of methane and caused it to vent laterally onto Landowner's property. The trial judge found that although there was a factual dispute regarding whether capping caused the migration of methane to Landowner's property, the capping in any event was not "an affirmative, positive, aggressive act" and therefore did not support an 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

S.C. Supreme Court issues opinion on standing and FOIA requests

In Sloan v. Friends of the Hunley, the Court addresses whether a private citizen has standing to bring suit because a public body has refused to respond to a FOIA request. The Court held that the citizen has standing and that FOIA does not require the information seeker to have a "personal stake in the outcome."

S.C. Supreme Court holds order granting a stay is not immediately appealable

In Edwards v. SunCom, the trial court granted SunCom's motion to stay an action while it sought a ruling from the Federal Communications Commission (FCC) as to whether an "early termination fee" constituted a "rate charged." Because the order did not discontinue the proceeding, but rather temporarily stays the matter pending a ruling by the FCC, the supreme court held the order was not immediately appealable.

Tuesday, May 16, 2006

SCOTUS holds that traditional factors for granting injunctions apply in patent infringement actions

In Ebay v. Mercexchange, the Supreme Court held that a federal court considering whether to award permanent injunctive relief to a prevailing plaintiff should apply the traditional four factor test historically employed by courts of equity: (1) that plaintiff has suffered an irreparable injury; (2) that remedies available at law, such as monetary damages, are inadequate to compensate for that injury; (3) that, considering the balance of hardships between the plaintiff and defendant, a remedy in equity is warranted; and (4) that the public interest would not be disserved by a permanent injunction. In this case, the federal circuit had ruled that courts will issue permanent injunctions against patent infringement unless there are exceptional circumstances.

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.

SCOTUS holds taxpayers have no standing to challenge corporate tax breaks

In Daimler Chrysler v. Cuno, the city of Toledo and State of Ohio sought to encourage the current manufacturer of Daimler Chrysler to expand its Jeep operation in Toledo, by offering local and state tax benefits for new investment. Taxpayers in Toledo sued, alleging that their local and state tax burdens were increased by the tax breaks for DaimlerChrysler, tax breaks that they asserted violated the Commerce Clause. The Sixth Circuit agreed that a state tax credit offered under Ohio law violated the Commerce Clause.

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

On May 12 a panel for the Fourth Circuit Court of Appeals issued an opinion in which it further limited the instances in which employees can sue their employers under Title VII. The case, Jordan v. Alternative Resources Corp., involved an employee who alleged that his employer retaliated against him by terminating his employment because he complained about an admittedly racially charged comment made by a co-worker. The Fourth Circuit upheld an order granting the employer's motion to dismiss for failure to state a claim on the basis that a single verbal comment is insufficient to create a hostile work environment and therefore the employee did not have an objectively reasonable belief that a violation of Title VII had occurred. According to the Court, absent an objectively reasonable belief that a violation of Title VII had occurred, the employee was not entitled to protection under Title VII. As noted in the dissenting opinion drafted by Circuit Judge King, the Court's opinion arguably leaves employees in the peculiar position of having to report what they believe to be hostile or harassing conduct, but being at their employer's mercy if they do so immediately after the conduct occurs and before it becomes sufficiently egregious or repetitive to constitute an objectively hostile working environment.

(contributed by Sandi R. Wilson)

Monday, May 15, 2006

Fourth Circuit issues qualified immunity opinion

In RIDPATH v. BOARD OF GOVERNORS the Fourth Circuit issued an opinion on the collateral order doctrine. The court held that the denial of qualified immunity, whether at the dismissal stage or at summary judgment is immediately appealable.

Friday, May 12, 2006

From the only in South Carolina category: Hog-dog, cockfighting bill clears House panel

Those of you into "hog-dog" fights are in for a disappointment. It looks like the General Assembly has answered the pressing need for legislation in this area and is banning the "hog-dog" pastime.

Thursday, May 11, 2006

Will the Fourth Circuit Remain the Most Conservative??

The Fourth Circuit is regarded as the most conservative in the nation. This could quickly change with the departure of Judge Luttig coupled with the troubled nominations of Boyle and Haynes.

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

Judge Michael Luttig rumored to have resigned from the Fourth Circuit

According to my sources, Fourth Circuit Judge Michael Luttig has delivered a letter to President Bush announcing his resignation from the U.S. Court of Appeals for the Fourth Circuit. The Texas native has been a judge on the Fourth Circuit since being appointed by the first President Bush in 1991. He worked briefly as an assistant counsel in the administration of President Reagan and clerked for Chief Justice Warren Burger and for Antonin Scalia.

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).

Hanky Panky in South Carolina Magistrate's Court

On Monday the state Supreme Court removed Spartanburg County Magistrate Johnny Cash from office because he violated the code of judicial conduct when he engaged in affairs with two women employed by the judicial system. The court said Cash used his position to pressure one woman into an affair and to grant a promotion to the other.

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

In Ex parte Capitol U-Drive-it v. Wallace, the Supreme Court considered whether an order to unseal the record of a divorce proceeding is immediately appealable. The court found the order was immediately appealable because the order issued by the family court unsealing the record determined a substantial matter forming the whole or part of the family court proceeding in which Capital sought access to the record of the Beavers' divorce and because after a court file is unsealed and the information released, no appellate remedy is likely to repair any damage done by an improper disclosure.

S.C. Supreme Court holds that Rule 5 and Brady do not apply to probation revocation proceedings

In State v. Hill, the state supreme court considered whether the specific requirements of Brady and Rule 5 apply to probation revocation proceedings. The court of appeals had held that both apply to probation revocation proceedings, but the supreme court disagreed. The supreme court reasoned that while the underlying probation violations may be criminal offenses, the probation revocation proceeding is not a criminal trial of those charges and thus Brady and Rule 5 do not apply.

Monday, May 08, 2006

S.C. Supreme Court changes dates for CLE reporting

The Supreme Court has amended Rules 408(a), 419, and 504(b), South Carolina Appellate Court Rules, to change the date for members of the South Carolina Bar to file annual compliance reports with the Commission from January 1 to March 1. The amendments change the reporting periods for both judges and lawyers from the current calendar year system. For CLE credit hours for 2006, the annual reporting period shall begin January 1, 2006, and end February 28, 2007. Thereafter, the annual reporting period shall run from March 1 through the last day in February.

Friday, May 05, 2006

S.C. Supreme Court issues opinion holding statute created a contract with teachers

In Layman v. State, the Supreme Court considered whether provisions of the Teacher and Employee Retention Incentive Program ("TERI") created a binding contract that could not be altered by a subsequent statutory enactment. Under TERI, the state provided a means for eligible employees to retire, but continue to work subject to several limitations. Under this old TERI program, an employee could retire, but continue to work for an additional five years after retirement. Instead of receiving their retirement check, the old TERI program participants' retirement money was placed in a non-interest bearing account to be paid out at the end of the five-year program period. During the five year period, the employees were deemed retired and made no further contributions to the retirement system out of their paycheck. In addition, old TERI program participants gave up the opportunity to accrue further service credit, thus, any increase in salary would not result in an increase in retirement benefits. In return, the State was able to retain a large number of experienced and well-trained employees for a period not to exceed five years.

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

Fourth Circuit issues opinion on collateral orders and state action antitrust immunity

In SOUTH CAROLINA STATE BOARD OF DENTISTRY v. FTC, the Fourth circuit considered whether the denial of "state action antitrust" immunity falls within the narrow class of "collateral orders" that may be appealed notwithstanding their lack of finality. The panel held that the denial of this immunity is not a collateral order. The panel concluded that because the requisite analysis under Parker v. Brown, 317 U.S. 341 (1943) is neither "completely separate from the merits" nor "effectively unreviewable" after trial, immediate appeal was inappropriate.

Wednesday, May 03, 2006

SCOTUS issues opinion on probate exception to federal jurisdiction

In Marshall v. Marshall, the Supreme Court reversed the Ninth Circuit, holding that the Circuit Court read the probate exception too broadly so that it excluded from the federal courts' adjudicatory authority not only direct challenges to a will or trust, but also questions which would ordinarily be decided by a probate court in determining the validity of the decedent's estate planning instrument.

For those of you interested in popular culture, this is the Anna Nicole Smith case.

Justice Pleicones and Judicial Restraint

The more opinions I read from Justice Pleicones the more I like him. Take, for example, his dissenting opinion yesterday in Porter v. State, a PCR case. The PCR judge held that trial counsel was ineffective for failing to file a Brady motion. The evidence Porter claimed his trial counsel failed to obtain through a Brady motion consists of the fact that the witness did not identify Porter at the crime scene. The Supreme Court, however, held that this information was immaterial in light of the subsequent identification of Porter in a photographic line-up.

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

SCOTUS decides South Carolina death penalty case

In Holmes v. South Carolina, the Supreme Court considered whether a criminal defendant' s federal constitutional rights are violated by an evidence rule under which the defendant may not introduce proof of third-party guilt if the prosecution has introduced forensic evidence that, if believed, strongly supports a guilty verdict.

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

Wordy Briefs

Have Opinion Will Travel has a thoughtful post up on wordy briefs. Here is a taste:

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.

Lexington judicial center named in honor of Judge Westbrook

The State newspaper has a good article on Judge Westbrook and the dedication of the Marc H. Westbrook Lexington County Judicial Center.