Wednesday, August 29, 2007
Tuesday, August 28, 2007
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.
Monday, August 27, 2007
We'll see how this progresses.
Friday, August 24, 2007
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.
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
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
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
Friday, August 17, 2007
Wednesday, August 15, 2007
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
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
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
Thursday, August 09, 2007
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
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.
For anyone interested, here is my post from February giving my take on the Court's opinion.
Tuesday, August 07, 2007
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
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.