Wednesday, August 29, 2007

MegaFrim Humor

These are some humorous recruiting videos by Choate Hall & Stewart. I would guess these are pretty effective as well (and true).

Anyway, I got a chuckle. Nice work.

Tuesday, August 28, 2007

S.C. Supreme Court holds laches is not a defense to claims for past due alimony

In Strickland v. Strickland, the South Carolina Supreme Court held that although the equitable nature of laches generally comports with the family court's equitable jurisdiction in determining support and maintenance between former spouses, the concept of "inexcusable delay" in the laches defense is inconsistent with the judicial authority inherent in a court order. Because court orders awarding support and maintenance do not have an expiration date, the Court held that allowing a party to avoid compliance based solely on the oblique notion of delay only serves to undermine the authority of the court. Hence, the Court concluded that laches is not a defense to a claim for the enforcement of an alimony award.

Remember, denials of Motions in Limine are not immediately appealble

In a short opinion issued yesterday, the Supreme Court rebuked the Court of Appeals for deciding a case based on the denial of a motion in limine. A motion in limine is generally not considered a final order on the admissibility of evidence and, for that reason, is not immediately appealable.

Trial lawyers: remember that even if you make a motion in limine to exclude evidence and the trial court denies the motion, you must also object during trial to the admission of the evidence or your issue will not be preserved for appeal.

Lindsey Graham backs Wilkins for AG

The State has Senator Graham's comments here. As I noted yesterday, Wilkins would be a terrific candidate for the office. No doubt Graham hopes this would get some of the Upstate GOP off his back. Just recently the Greenville GOP voted to censure Graham because of his stances on immigration and border security.

Monday, August 27, 2007

Could William W. Wilkins be the 81st United States Attorney General?

With Gonzales stepping down and Judge Wilkins having just taken senior status, this is a possibility. Wilkins is a solid conservative with law and order credentials, and he also gets along well with Democrats such as Senator Joe Biden. He certainly has the integrity and the experience to bring credibility back to the Department of Justice.

We'll see how this progresses.

Friday, August 24, 2007

SC Inmate sues over "pink punishment" for gratifying himself

From Yahoo News:

South Carolina's prisons director Tuesday defended a policy of punishing inmates who perform sex acts by dressing them in pink, despite a lawsuit claiming the rule subjects prisoners to ridicule.

State Corrections Department John Ozmint said the two-year-old punishment deters inmates and protects female officers. His agency has asked a federal judge to dismiss the lawsuit.
"We don't believe the United States Constitution protects an inmate's right to publicly gratify himself," Ozmint said. "We're hopeful federal courts won't look into our Constitution and create such a right."

Inmate Sherone Nealous, 31, filed the lawsuit in June 2006, claiming the Corrections Department "is placing inmates' lives and physical well-being in danger."

"The color 'pink' in an all-male environment no doubt causes derision and verbal and physical attacks on a person's manhood. This policy also gives correctional officers an easy avenue to label an inmate," Nealous, who is serving a 10-year sentence for assault and battery with intent to kill, wrote in his lawsuit.

Reggie Lloyd Indicts Three Mexican Nationals in South Carolina Sex Trafficking Case

From The Examiner:

Three Mexican nationals were indicted yesterday for sex trafficking and related crimes, Assistant Attorney General Wan J. Kim of the Civil Rights Division and U.S. Attorney Reginald I. Lloyd of the District of South Carolina announced.

According to the 20-count indictment, Jesus Perez-Laguna, Guadalupe Reyes-Rivera a.k.a. "Mama Martina," and Ciro Bustos-Rosales violated federal law by conspiring between November 2006 and March 2007 to bring Mexican women into South Carolina for the purpose of engaging in commercial sex. The indictment alleges that in at least one instance the victim was 14 years old. The indictment also charges the defendants with various immigration violations including the harboring of illegal aliens.

Thursday, August 23, 2007

Fourth Circuit holds that data from diagnotic machine is not a statement under Crawford v. Washington

In UNITED STATES v. WASHINGTON, at trial, the government offered, over Washington’s objection, the expert testimony of Dr. Barry Levine to prove that a blood sample taken from Washington the night of his arrest contained PCP and alcohol. Washington’s argued that the raw data generated by the forensic lab’s diagnostic machines and relied on by Dr. Levine to give his testimony amounted to testimonial hearsay statements of the lab technicians who operated the machines. As a result, Washington argued that Dr. Levine’s testimony was not admissible,as Washington had a right to confront the technicians and cross examine them by reason of the Sixth Amendment’s Confrontation Clause.

The Fourth Circuit rejected this argument:

In the case before us, the "statements" in question are alleged to be the assertions that Washington’s blood sample contained PCP and alcohol. But those statements were never made by the technicians who tested the blood. The most the technicians could have said was that the printed data from their chromatograph machines showed thatthe blood contained PCP and alcohol. The machine printout is the only source of the statement, and no person viewed a blood sample and concluded that it contained PCP and alcohol. Yet, the very samedata that would have permitted the lab technicians to say that the blood contained PCP and alcohol were also seen and interpreted byDr. Levine. Moreover, those data were the only basis upon which Dr.Levine stated in court that the blood sample contained PCP and alcohol.In short, the inculpating "statement" — that Washington’s blood sample contained PCP and alcohol — was made by the machine on printed sheets, which were given to Dr. Levine. The technicians could neither have affirmed or denied independently that the blood contained PCP and alcohol because all the technicians could do was to refer to the raw data printed out by the machine. Thus, the statements to which Dr. Levine testified in court — the blood sample contained PCP and alcohol — did not come from the out-of-court technicians,and so there was no violation of the Confrontation Clause.

Wednesday, August 22, 2007

S.C. Supreme Court issues guidance on personal data identifiers in appellate filings

In an effort to protect privacy of material filed in the appellate courts, the Supreme Court has issued this order. The gist is as follows:

Parties shall not include, or will partially redact where inclusion is necessary, the following personal data identifiers from documents filed with an appellate court:

1. Social Security Numbers. If a social security number must be included, only the last four digits of that number should be used.

2. Names of Minor Children. If a minor is the victim of a sexual assault or is involved in an abuse or neglect case, the minor's name will be completely redacted and a term such as "victim" or "child" should be used. In all other cases, only the minor's first name and first initial of the last name (i.e., John S.) should be used.

3. Financial Account Numbers. If financial account numbers are relevant, only the last four digits of these numbers should be used.

4. Home Addresses. If a home address must be included, only the city and state should be used.

Tuesday, August 21, 2007

Top 100 Power Players in SC

This is an interesting list, with more than a few lawyers listed. (Hat tip to Palmetto Scoop)

One wonders, however, how former Chief Judge William Wilkins was left off??

Ravenel Trial Delayed has this story:

Jury selection was previously scheduled to take place on September 5, but a district court judge signed an order delaying the trial for Ravenel and co-defendant Michael Miller to November 8.

Friday, August 17, 2007

Fourth Circuit upholds derivative jurisdiction requirement under section 1442

In PALMER v. CITY NATIONAL BANK, a panel of the Fourth Circuit held that the doctrine of derivative jurisdiction, which requires that a federal court’s jurisdiction over a removed case mirror the jurisdiction that the state court had prior to removal, survives and is applicable to the federal officer removal statute, 28 U.S.C.A. 1442. Congress specifically eliminated the doctrine for cases removed under 28 U.S.C. § 1441, the general removal statute, but failed to make these changes to section 1442. Hence, derivative jurisdiction still lives in cases removed under section 1442.

SC prisoner sues Michael Vick for $60 billion

Check out this prisoner complaint! It is classic. I'm especially impressed that he demands the money via UPS and to be backed by gold and silver. Dude has no trust in those depreciating greenbacks. And, this is the first I've heard of Vick's affiliation with Osama bin Laden.

Wednesday, August 15, 2007

Court of Appeals holds that CDR Code cannot trump provisions of statute

In State v. Bennett, Bennett was sentenced to four years in prison for distribution of crack cocaine and ordered to submit to community supervision (CSP) thereafter. Bennett violated his community supervision and was returned to prison on multiple occasions. At one CSP hearing, Bennett finally argued that S.C. Code § 44-53-375(B)(1), under which he was convicted does not provide for CSP. Thus, he should be released from CSP. The state countered that although the statute did not provide for CSP, because the CDR Code used did provide for CSP, the offense code controlled. The Court of Appeals ruled in Bennett's favor.

Because the South Carolina Code of Laws is the controlling authority for classifications, definitions and penalties for criminal offenses, a statute listed on a sentencing sheet, and not a CDR code, will dictate a criminal’s sentence. Therefore, we find Bennett was sentenced as a first offender. Bennett’s warrant, indictment, and sentencing sheet all list S.C. Code § 44-53-375(B)(1), indicating a first offense. The additional listing of the CDR code on Bennett’s sentencing sheet, indicating a second offense, may not trump the listed statute. Due to SCDOC’s erroneous interpretation of Bennett’s sentencing sheet, Bennett has served more than the original sentence of four years and should be released from CSP.

Tuesday, August 14, 2007

Supreme Court clarifies summary judgment standard when dealing with tort of outrage

In Hansson v. Scalise Builders of South Carolina, the Supreme Court considered the application of the summary judgment standard in connection with the tort of outrage. The basis for the action was Hansson's allegations that his coworkers and supervisor constantly derided him with callous and vulgar remarks and gestures related to homosexuality. To claim outrage, a Plaintiff must show:

1) the defendant intentionally or recklessly inflicted severe emotional distress, or was certain, or substantially certain, that such distress would result from his conduct;
(2) the conduct was so ‘extreme and outrageous’ so as to exceed ‘all possible bounds of decency’ and must be regarded as ‘atrocious, and utterly intolerable in a civilized community;’
(3) the actions of the defendant caused plaintiff’s emotional distress; and
(4) the emotional distress suffered by the plaintiff was ‘severe’ such that ‘no reasonable man could be expected to endure it.’

Summary judgment was granted below but the Court of Appeals reversed. The court of appeals found that Hansson demonstrated a genuine issue of material fact regarding the element of “outrageous conduct” required for an intentional infliction of emotional distress claim. The Supreme Court granted cert and reversed the Court of Appeals. The Supreme Court held that the Court of Appeals' analysis extended only to element two of the tort and ignored elements 1, 3, and 4. Because Hansson never sought physician help, claimed only to have lost sleep at night, the Supreme Court reasoned summary judgment was proper.

Hansson failed to provide any legally sufficient evidence in this case to show that his resulting emotional distress was “severe” within the contemplation of this Court’s mental anguish jurisprudence. Assuming, without deciding, that Petitioners’ conduct was sufficiently “outrageous” to come within the ambit of intentional infliction of emotional distress, Hansson’s passing references to fairly ordinary symptoms are nonetheless insufficient to create a jury question on the damages element of his claim for intentional infliction of emotional distress.

Monday, August 13, 2007

Fourth Circuit reverses sanctions for lawyer copying juror notes after jury had been discharged

In Thomas v. Schatz, the district court reprimanded and censured Alan Thomas and Isaac Southerland, trial attorneys for Ford Motor Company, for looking at and copying jurors' noted in the jury room after the jury had been discharged. The two lawyers were in the jury room to retrieve items introduced into evidence. The district court concluded that the lawyers had violated the spirit, if not the letter,of Local Rule 47.01, which prohibits an attorney from“communicat[ing] or attempt[ing] to communicate with any member of the jury regarding the jury’s deliberations or verdict without obtaining an order allowing such communication.” . The court determined that by reading and copying the jury’s notes on the easel, the lawyers essentially communicated with the jury without the court’s permission.

The panel disagreed, noting that "Local Rule 47.01 is aimed at preventing lawyers, without permission of the court, from bothering jurors after they have completed their service by writing them or attempting to talk to them." The court noted that it had found no rule or law that makes sanctionable the viewing or copying of jurors’ notes after the case has ended. Thus, the sanctions were reversed.

Friday, August 10, 2007

More associate pay increases in the South


Troutman Sanders raised associate pay $15,000 across the board in its Atlanta, Washington, Virginia and North Carolina offices Thursday, with the starting salary going from $130,000 to $145,000.

Thursday, August 09, 2007

Internal operating procedure at SCOTUS

Tony Mauro of Legal Times has a good piece up on a recent talk given by Justice Alito on the High Court's internal operations. Here is my favorite tidbit:

During oral argument, Alito said in a talk at Pepperdine University School of Law in California, his colleagues are so inquisitive that "it's extremely difficult to get a question in."

Alito said his natural tendency would be to ask a question when the lawyer arguing before the Court gets to the subject he is curious about. But because his colleagues are asking so many questions of their own, Alito said, he sometimes has to use "a strategic opportunity to get a word in edgewise," posing his own query whenever he can, whether it changes the subject or not. Alito wryly suggested that the bench may be so garrulous because the current Court contains "the greatest proportion of former law professors" in Supreme Court history.

Wednesday, August 08, 2007

Is the Fourth Circuit now the Motz Court??

Here is an interesting article from the Washington Post on the Fourth Circuit's vacancies and how the Court is no longer a bastion of conservative jurisprudence.

Motz's ascension illustrates a remarkable turnaround: The U.S. Court of Appeals for the 4th Circuit, long considered one of the nation's most conservative appellate courts, is shifting to a moderate direction with the balance up for grabs. A growing list of vacancies -- now five -- has left the court evenly divided between Republican and Democratic appointees.

With an election year approaching, experts predict the court will tilt decisively to the left if Democrats keep control of Congress and reclaim the White House.

Charleston School of Law hosts punitive damages symposium

Mark your calendars for this one. The Charleston School of Law has invited an impressive group of practitioners and academics to discuss punitive damages post Philip Morris v. Williams. The event will be held on September 7, 2007. Here is a link to the brochure. Props to Professor Sheila B. Scheuerman for organizing this event.

For anyone interested, here is my post from February giving my take on the Court's opinion.

Tuesday, August 07, 2007

Fourth Circuit grants habeas relief for counsel's failure to inform client of justification defense

In United States v. Mooney, John Mooney presented evidence in his 2255 hearing that he seized a firearm from his ex-wife in self-defense, when his ex-wife, who was intoxicated, pointed it at his head. He then walked several blocks to his place of employment to hand the weapon over to the police. Because Mooney was a convicted felon, however, he was charged with the unlawful possession of a firearm.

Counsel advised Mooney that justification provided no defense to a violation of § 922(g). Relying on counsel’s advice, Mooney reluctantly pleaded guilty, and the district court sentenced him to 180 months’ imprisonment. After an unsuccessful direct appeal, Mooney filed a timely § 2255 motion, claiming that his guilty plea was involuntary in that his counsel rendered him ineffective assistance by not investigating the justification defense and by advising him to plead guilty because there was no such defense.

The Court granted the petition. The panel found that Mooney was under unlawful and present threat of death or serious bodily injury, did not recklessly place himself in a situation where he would be forced to engage in criminal conduct, had no reasonable legal alternative to both the criminal act and the avoidance of the threatened harm, and that there was a direct causal relationship between the criminal action and the avoidance of the threatened harm.

Monday, August 06, 2007

Judge Matthew Perry to receive ABA award

Federal judge Matthew J. Perry Jr. will be honored this month with the Thurgood Marshall Award from the American Bar Association for his years of contributions to civil rights.

State circuit judge throws out evidence garnered in kiddy porn prosecution

From The State:

South Carolina Attorney General Henry McMaster is telling members of a task force that targets Internet sex predators to continue their work despite a judge's ruling that could put the cases in jeopardy.

Circuit Judge Mark Hayes ruled last month that investigators incorrectly used a federal law to get the identity of a suspect accused of trying to solicit sex from an undercover officer posing as a 13-year-old girl.

McMaster has appealed the ruling but acknowledged that most pending cases would be threatened if the decision stands.

"Frankly, it's a much worse scenario than we originally thought," said McMaster spokesman Mark Plowden. "The consequences of that order being upheld are dire."

The judge's ruling came in the case of 33-year-old former prosecutor Anthony Clark Odom, who was charged with criminal solicitation of a minor after authorities said he used the Internet to try to entice what he thought was a 13-year-old girl to have sex with him.

Hayes ruled the federal law authorities used to get subscriber information from Odom's phone company and Internet provider was not supported by South Carolina law, and he wouldn't allow the information to be used at Odom's trial. Prosecutors said they need the information to link Odom to the online chats.

The federal law only requires a judge to sign a document. Hayes ruled state law requires a higher standard, including probable cause and submitting a sworn oath, to obtain similar evidence.

The task force made its 85th arrest Thursday - 75-year-old Donald Joseph Murphy of North Charleston was charged with one count of criminal solicitation of a minor.

Of the previous arrests, 24 have resulted in guilty pleas and two defendants have been found guilty at trial, Plowden said.

In his letter to the task force, McMaster noted that the use of the federal "d-order" has been upheld by another South Carolina Circuit Court judge.

"No one can guarantee the outcome of an appeal, but I am confident that our d-order process is sound and will continue to utilize it vigorously to prosecute these sexual predators of children," McMaster wrote.

Friday, August 03, 2007

S.C. Court of Appeals affirms that statute of repose is "substantive" for choice of law issues

In Nash v. Tindall Corp., plaintiffs were injured when a bridge collapsed in North Carolina. Tindall defended on the grounds that the suit was barred by North Carolina's statute of repose. Plaintiff countered that that South Carolina law, not North Carolina law, should be applied in this case. The Court of Appeals disagreed, holding that the substantive law of the place of the injury applies and that a statute of repose creates a substantive right in those protected to be free from liability after a legislatively-determined period of time.

Wednesday, August 01, 2007

South Carolina Supreme Court Issues Warrantless Search Opinion

In State v. Weaver, Weaver argued that evidence found in a Jeep should have been suppressed because it was searched without a warrant. The Supreme Court disagreed and held that there was probable cause to conduct a warrantless search of the Jeep. Investigators knew that Weaver, a suspect in McKnight’s murder, had been seen driving the Jeep around the time of the murder. Upon finding the Jeep, it seemed apparent there had been an attempt to destroy evidence given the Jeep’s interior was wet and smelled of bleach. Therefore, upon finding the Jeep, the investigators could have conducted the search at that time; however, they chose to impound the vehicle and search it later. The fact investigators chose to wait to search the Jeep after it had already been impounded did not affect the propriety of the warrantless search because there is no requirement that the warrantless search of a vehicle occur contemporaneously with its lawful seizure.