SCOTUS decides Voter ID Case

This week, the United States Supreme Court decided whether a state can require a voter to present a photo ID before casting a ballot (Crawford v. Marion County). The law was challenged by the Democratic Party alleging that it substantially burden the right to vote. The purpose, of course, of the law was to prevent election fraud. The Supreme Court in a splinter decision held that the evidence and the record was insufficient to support a facial attack on the validity of the statute. Thus, the Court affirmed the statute.

The Supreme Court stressed that the prevention of election fraud is a substantial state interest. It also stressed that the State of Indiana provides free photo identification cards to all citizens. The Court found that any inconvenience of making a trip to the motor vehicle department to obtain a photo ID "does not qualify as a substantial burden on the right to vote, or even present a significant increase over the usual burdens of voting."

The Court also noted in its opinion that the Democrats bore a heavy burden because they advanced a broad attack on the constitutionality of the statute, seeking relief that would invalidate the statute on all its applications. The Democrats had argued that the statute would impose a substantial burden on voters who were unable to obtain a birth certificate in order to secure the photo ID. Those without birth certificates could cast a provisional ballot, but would be required to go to the circuit court clerk’s office after voting to file an affidavit. The Supreme Court noted that on the basis of the evidence and the record, it was not possible to quantify either the magnitude of this burden on the narrow class of voters or the portion of the burden imposed on them that is fully justified. The record provided no evidence of a number of voters without photo identification. The record said virtually nothing about the difficulty faced by either indigent voters or voters with religious objections to being photographed.

In summary, the Court held that the record prevented it from concluding that the statute imposed excessively burdensome requirements on any class of voters. Thus, the facial challenged failed.

Justice Scalia, Thomas, and Alito concurred in the judgment of the Court. These three justices would have gone further than to hold that the record was insufficient to show a special burden. They would have held that the burden at issue was minimal and justified. These three justices conclude with the following paragraph:

"The universally applicable requirements of Indiana's voter-identification law are eminently reasonable. The burden of acquiring, possessing, and showing a free photo identification is simply not severe, because it does not ‘even represent a significant increase over the usual burdens of voting. And the State's interests are sufficient to sustain that minimal burden. That should end the matter. That the State accommodate some voters by permitting (not requiring) the casting of absentee or provisional ballots, is an indulgence - not a constitutional imperative that falls short of what is required."

South Carolina Court of Appeals reverses trial court order compelling disclosure of hospital peer review materials

In Wieters v. Bon-Secours, the State Court of Appeals considered an order compelling discovery in a defamation action. At base, a physician had his privileges suspended by the hospital, the hospital reported this action to the National Practitioner Databank, and the physician sued the hospital for defamation, alleging that the Databank report contained false information about him. In discovery, Wieters sought information about suspensions of other physicians. The trial court issued an order compelling answers in deposition to general questions regarding other summary suspensions at the hospital. The hospital appealed this order.

The South Carolina Court of Appeals realized that typically an interlocutory order is not immediately appealable. However, an exception to this rule is a discovery order compelling a hospital to produce credentialing files (McGee v. Bruce Hospital System). Because the trial court’s order also dealt with the discovery of peer review materials, the Court of Appeals found that it was immediately appealable.

Next, the Court of Appeals considered the discovery of peer review materials in this case. Again, the trial court had ordered two physicians to reveal knowledge that they learned in their service on peer review committees. The Court noted that under our peer review statutes, public policy favors the protection of peer review material. Without the promise of confidentiality, physicians would not fully and completely participate in the process. The lack of candor and openness would hinder the efforts of hospitals to monitor their own physicians.

The Court of Appeals ultimately reversed the trial court’s order compelling discovery. The Court held that committee actions are safe guarded and protected by the peer review statute. The physicians, therefore, could not be compelled to answer questions about what led to the suspension of other physicians at the hospitals.

From the Judge-said-what files..........

Only South Carolina's Judge Ralph King Anderson, when deciding the scope of the discovery of peer review material, could have written this:

"The cognoscenti of health care nomology trust and rely upon Peer Review Statutes as the quiddity and hypostasis of the hospital/physician relationship. The quintessence and elixir of the peer review process is confidentiality."

Say what?? Please put down the thesaurus and step away from the opinion, Judge.

Now wouldn't this sentence work much better:

"Peer Review Statutes recognize that the promise of confidentiality is key to a hospital's peer review process. "

Anyone got any better suggestions?

SCOTUS holds that state law does not affect the enforcement of the Fourth Amendment

Yesterday the Supreme Court in Virginia v. Moore considered whether a police officer violates the Fourth Amendment by making an arrest based on probable cause but prohibited by state law. The officers in the case stopped Moore because they heard over the police radio he was driving with a suspended license. The officers subsequently searched Moore and found that he was carrying 16 grams of crack cocaine. Under state law, the officers should have issued Moore a summons instead of arresting him. Driving on a suspended license is not an arrestable offense in Virginia.

Moore was charged with possessing cocaine with the intent to distribute in violation of Virginia law. He argued that the evidence of the drugs should be suppressed because it was obtained in violation of state law. The case eventually made its way to the Virginia Supreme Court. The Virginia Supreme Court held that because the arresting officers should have issued Moore a citation under state law, and the Fourth Amendment does not permit a search incident to a citation, the arrest search violated the Fourth Amendment.

The Supreme Court reversed. The Court concluded that a warrantless arrest for a crime committed in the presence of an arresting officer is reasonable under the Constitution, and that while states are free to regulate such arrests however they desire, state restrictions do not alter the Fourth Amendment’s protections. No matter what state law says about making an arrest or issuing a citation, the Court found that the interests justifying a search are present whenever an officer makes an arrest. A search enables the police officer to safeguard evidence and insure his safety.

In sum, while the police officer did violate the state law regarding arrest rules, the Court concluded that it was not the province of the Fourth Amendment to enforce state law. Hence, the Amendment does not require the exclusion of evidence obtained from a constitutionally permissible arrest (even if the arrest is impermissible under state law).

Could Fourth Circuit Nominees Steve Matthews and Robert Conrad be confirmed by Memorial Day?

Probably not. Under pressure from Minority Leader Mitch McConnell, Democratic leader Harry Reid has agreed to a plan to confirm three of President Bush's appellate court nominees by Memorial Day. The question is which ones? There is pressure to confirm Matthews and Conrad, but word is that the Dems plan to let these nominees hang out there.

The WSJ has this editorial on the matter.

Glen Everett Gibson murder trial begins in Greenville

The Greenville News has this story.

Breach of fiduciary duty issue not preserved for review in legal malpractice case

In Spence v. Wingate, the South Carolina Court of Appeals granted a grant of partial summary judgment in a legal malpractice claim. At base, the trial court had held that the law firm did not owe a fiduciary duty to the wife concerning her late husband’s life insurance policy. The law firm represented the wife of the late Congressman Floyd W. Spence. The law firm originally undertook representation to negotiate an agreement on wife’s behalf with four sons of her husband regarding a division of the probate estate. During the course of the representation, the wife also consulted with the law firm about her husband’s federal life insurance policy and informed the law firm that Spence had named her as a beneficiary. The facts developed that shortly before his death Spence did attempt to change the beneficiary on his life insurance policy so the wife would be the sole beneficiary. Prior to this attempted change, Spence had named each of his four sons and the wife as equal beneficiaries. The United States House of Representatives determined that the proceeds should be divided equally among the wife and the four sons.

The trial court held that the law firm did not owe a duty or obligation to the wife with respect to the life insurance policy. The wife argued that a general issue of material fact existed about a fiduciary duty in light of the law firm’s earlier representation of her in the probate matter. On appeal, the law firm contended that the wife’s argument was not preserved for review because the trial judge did not explicitly rule on this argument and the wife did not move to alter or amend the appealed order on that ground. The trial judge’s order cited S.C. Code Ann. section 62-1-109 which provides that a lawyer’s representation of a fiduciary in a probate matter does not, without more, impose on the lawyer responsibilities to the other parties with interests in a fiduciary property. This statute, according to the Court of Appeals, does not address whether attorneys representing fiduciaries could be accountable to such claimants for other reasons. The trial judge’s order did not mention that wife, as a former client of the law firm, had a continuing fiduciary relationship with them that would not be affected by Section 62-1-109. Because there was nothing in the appealed order suggesting that the trial judge determined this fiduciary duty issue, the issue was not preserved for review.

SCOTUS rules in lethal injection case: executions will likely soon begin again in the US

Yesterday the Supreme Court decided Baze v. Rees, which dealt with whether the most common method of lethal injection constitutes cruel and unusual punishment because of the dangers of pain and discomfort to an inmate. The final decision was splintered. Chief Justice Roberts announced the judgment of the court and delivered an opinion joined by Justices Kennedy and Alito. Justice Alito filed a concurring opinion, Justice Stevens and Breyer filed opinions concurring in the judgment. Justices Scalia and Thomas each filed concurring opinions and both joined the opinion of the other. Justice Ginsburg filed a descending opinion and was joined by Justice Souter. In sum, this was a royal mess.

The court’s decision does have a far reaching effect. Thirty-six states and federal government impose capital punishment for certain crimes. Lethal injection is used in every jurisdiction that imposes that penalty. The challenge before the court dealt with the Eighth Amendment's ban on cruel and unusual punishment. The petitioners argued that because of the risks that the lethal injection protocol might not be properly followed, the criminal defendant could suffer significant pain. However, the petitioners did acknowledge in oral argument that if the lethal injection procedure is properly applied, a humane death results. The Supreme Court held that "petitioners have not carried their burden of showing that the risk of pain from maladministration of a concededly humane lethal injection protocol, and the failure to adopt untried and untested alternative, constitutes cruel and unusual punishment."

The court observed that some risk of pain is inherent in method of execution in as much as the prospect of error exists in most procedures. The court further observed that the Constitution does not demand the avoidance of all risk of pain and carrying out executions. Of course, the petitioners did not claim that all risks must be prevented. Instead, the petitioners argued that the Eighth Amendment prohibited procedures that create an "unnecessary risk" of pain. Because of the intrinsic risk of maladministration or accidents with any execution, the court held that a condemned prisoner cannot successfully challenge a state's method of execution merely "by showing a slightly or marginally safer alternative" exists. The court feared that to allow such challenges would "transform courts into boards of inquiry charged with determining 'best practices' for executions, with each ruling supplanted by another round of litigation touting a new and improved methodology." The court feared that the approach as urged by the petitioners "would embroil the courts in ongoing scientific controversies beyond their expertise, and would substantially intrude on the roll of state legislatures in implementing their execution procedures."

The court also noted that the use of the three-drug cocktail (sodium thiopental, pancuronium romide, and potassium chloride) is difficult to regard as 'objectively intolerable' when this cocktail is used in 36 states. The court recognized that this consensus is probative, but not conclusive. The court placed much weight on the fact that the petitioners agreed that if the first drug of the cocktail is properly administered, the condemned prisoner will feel no pain.
The court averred that "a stay of execution may not be granted on grounds such as those asserted here unless the condemned prisoner establishes that the state’s lethal injection protocol creates a demonstrated risk of severe pain. He must show that the risk is substantial when compared to the known and available alternatives. A state with a lethal injection protocol substantially similar to the protocol we uphold today would not create a risk that meets this standard."

In other words, so long as the states continue to use the three drug cocktail and follow protocols similar to that of Kentucky, they will be immune from attack under the Eighth Amendment. This decision should end the moratorium on executions currently in place.

The most interesting part of the court’s decision occurs in an exchange between Justice Stevens and Justice Scalia. Justice Stevens, of course, believes that the death penalty is unconstitutional. Justice Scalia, expressing no opinion of his own on whether the death penalty is proper, notes that it is expressly permissible under the Constitution. Justice Scalia’s opinion ends with this paragraph:

"Purer expression cannot be found of the principal of rule by judicial fiat. In the face of Justice Stevens' experience, the experience of all others is, it appears, of little consequence. The experience of the state legislatures and the Congress – who retained the death penalty as a form of punishment – is dismissed as 'a product of habit and inattention rather than an acceptable deliberative process.' The experience of social scientists whose studies indicate that the death penalty deters crime is relegated to a footnote. The experience of fellow citizens who support the death penalty is described, with only the most thinly veiled condemnation, as stemming from a 'thirst for vengeance.' It is Justice Stevens’ experience that reins over all."

Fourth Circuit decides major Confrontation Clause Case dealing with state rape shield laws

In Barbe v. McBribe, the Fourth Circuit Court of Appeals dealt with a confrontation clause issue. The issue presented to the court was whether the district court erred in holding that Barbe’s rights under the confrontation clause were not violated when the state trial judge mechanistically applied the state’s rape shield statute without evaluating whether the interests served by the statute justified the total limitation enclosed upon Barbe’s federal constitutional right to cross-exam an expert witness. Barbe was seeking habeas corpus relief under Section 2254. He had been convicted in 1999 in West Virginia of 8 counts of sexual abuse. Six of the 8 counts related to his granddaughter. In order to bolster the granddaughter’s testimony, the state prosecutor called an expert witness in clinical psychology to opine that the granddaughter exhibited the profile of a sexually abused child and that she had in fact been sexually abused. Barbe sought to cross-exam the expert based on other incidents of sexual assault. Defense counsel explained to the court that he sought to provide an alternative explanation for why the granddaughter exhibited the psychological profile and problems. A trial judge forbade this cross-examination. According to the trial judge, under the West Virginia rape shield law other claims of sexual abuse could be admitted only if the defense could prove the falsity of the other claims. Of course, in this case, the defense did not want to prove the falsity of the other claims. The defense depended on the other claims being true to explain the source of the profile.

The Fourth Circuit held that Barbe should have been granted a writ of habeas corpus. The court held that “his Sixth Amendment confrontation right was indisputably contravened, however, by the state circuit court’s application of a per se ruling restricting cross-examination of the prosecution’s expert under the state rape shield law.” The Fourth Circuit held that the state court’s ruling was in clear conflict with the Rock-Lucas principal established by the Supreme Court of the United States in 1991. The state court’s decision involved an objectively unreasonable application of federal law by ignoring the Rock-Lucas principal.

The Fourth Circuit held that the state court should have considered: (1) the strength of the state’s interest that weigh against admission of excluded evidence, (2) the importance of the excluded evidence to the presentation of an effective defense, and (3) the scope of the evidence ban being applied against the accused. The court found that each of these factors favored permitting cross-examination of the expert witness. Accordingly, the court remanded for the issuance of writ of habeas corpus.

Light Blogging this week

I'll be in trial the week of April 7, 2008. Wish me luck!!!

Check back next week for posting.

States file suit against EPA on global warming

From the AP:

Officials of 18 states are taking the EPA back to court to try to force it to comply with a Supreme Court ruling that rebuked the Bush administration for inaction on global warming.
In a petition prepared for filing Wednesday, the plaintiffs said last April's 5-4 ruling required the Environmental Protection Agency to decide whether to regulate greenhouse gas emissions, including carbon dioxide, from motor vehicles.

The EPA has instead done nothing, they said.

"The EPA's failure to act in the face of these incontestable dangers is a shameful dereliction of duty," Massachusetts Attorney General Martha Coakley said.

The petition asks the U.S. Court of Appeals for the D.C. Circuit to require the EPA to act within 60 days.

SC residents can still use driver's license in boarding aircraft

South Carolina residents will continue to be able to use their driver's licenses to get on airplanes and into federal buildings, the Department of Homeland Security said Monday as it granted the state an extension to comply with a new federal ID law.

The AP has this report.

SC Supreme Court upholds Greenville Smoking Ban

On January 1, 2007, a Greenville County ordinance went into effect that banned smoking from a number of places, including restaurants and bars. A few bar and restaurant owners brought suit and a trial judge (The Hon. John Few) permanently enjoined the city from enforcing the ordinance. The trial court held that the ordinance was preempted by state law and that it violated the South Carolina Constitution. The trial court's order can be found here.

The South Carolina Supreme Court has now reversed. The court held that the ordinance was not preempted by state law and is not inconsistent with the Constitution of South Carolina. The trial judge had determined that the General Assembly intended to prohibit local government from imposing any restriction on indoor smoking beyond the restrictions contained in the Clean Indoor Air Act. The trial court focused on a portion of S.C. Code Ann. section 16-17-504 which stated that "any laws, ordinances, or rules enacted pertaining to tobacco products may not supersede state law or regulation."

The state supreme court held that the trial court erred when it "isolated a phrase from section 16-17-504 and interpreted it in such a way as to accomplish preemption under the Clean Indoor Air Act." The supreme court further stated that “it is patent that the language regarding ‘ordinances’ found in section 16-17-504 is intended to relate specifically to the distribution of tobacco products" and not the regulation of indoor smoking.

The trial court had also found that the ordinance violated Article VIII, section 14 of the South Carolina Constitution. The trial court held that because a violation of the Clean Indoor Air Act constitutes a misdemeanor punishable by a fine, and the Greenville ordinance provides for a fine for smoking in areas not prohibited by state law, the city unconstitutionally criminalized a matter not illegal under the State of South Carolina’s criminal laws.

Article VIII deals with the creation of local government and limits the power of local government in certain areas. The supreme court construed the Greenville Smoking Ordinance as a non-criminal law. Accordingly, the provisions of Article VIII that prohibit a local government from setting aside the criminal laws of the state were not implicated. The supreme court observed that violation of the smoking ordinance constituted an infraction or a public nuisance and thus did not criminalize any conduct.

Accordingly, the court reversed the trial judge’s decision to enjoin the Greenville smoking ban.

While the public has followed this case, the decision does not change much about smoking in bars. Many bars learned that business actually increased because of the ban. Patrons could enjoy a brew and eats without smog.

SC Supreme Court holds that filing of an ODC complaint is not grounds to remove appointed PCR counsel

In Richardson v. State, the State Supreme Court dealt with the issue of a PCR judge refusing to relieve PCR counsel. The court addressed this matter because of the recurring problem of PCR applicants seeking repeatedly to have their appointed counsel relieved. The court reiterated that there is no constitutional obligation to appoint counsel in a PCR matter. The court further noted that a PCR applicant is not entitled to appointed counsel of his choice. The applicant has the right to reject or discharge court-appointed counsel and proceed pro se or to retain his own counsel. The court observed that a common tactic in PCR matters is for the applicant to file a complaint against appointed counsel with the Office of Disciplinary Counsel. The complaint has been used as a basis for a motion to relieve counsel. The court cautioned the trial bench that the filing of a disciplinary complaint should not result in automatic removal of appointed counsel. If this were the case, applicants could easily abuse the system and obtain substitute counsel by the simple matter of filing an ethical complaint with the Office of Disciplinary Counsel.

The week in review

Check out Blawg Review #153, for the best of blog posts from last week. Lot's of good stuff on the recent SCOTUS rulings. Declarations and Exclusions does a nice job hosting this one.

SCOTUS hears arguments on pro se representation by the mentally ill

When mentally ill defendants are found competent to stand trial, does that also mean they are competent enough to represent themselves in court?

Tony Mauro, over at Law.com, has this discussion on standard of competence for self-representation. The case concerns a diagnosed as a schizophrenic who was denied his right to represent himself at a 2005 trial for a department store robbery and shooting.

SCOTUS decides Medellin, checks executive power, and limits the reach of the ICJ

Yesterday SCOTUS decided MEDELLIN v. TEXAS. This was one of the most important cases of the term with huge implications for American sovereignty. At stake was whether the International Court of Justice could command state and federal courts to alter PCR procedural default rules. President Bush and the ICJ said yes, but thankfully, SCOTUS said no. The decision is a blow to unchecked executive power, which the Bush Administration is so fond of, and a blow to efforts of international courts to erode American sovereignty.

Here's a synopsis of the case:

Jose Ernesto Medellin is a Mexican national who has lived in the United States since pre-school. Medellin was also a member of a Texas street gang. He was convicted of murder and sentenced to death in Texas after his significant participation in the gang rape and killings of two Houston teenagers. After a trial and a direct appeal, Medellin raised a claim under the Vienna Convention when he filed an application for post-conviction relief in state court. The state court held that the Vienna Convention claim was procedurally defaulted because Medellin had failed to raise the claim at trial or on direct appeal. At base, Medellin argued that as a Mexican national he was entitled to have the Mexican authorities notified of his arrest and that the failure to do so affected the validity of his conviction and punishment.

Medellin turned to the federal courts and filed a 2254 petition. While the federal courts litigated this matter, the International Court of Justice held that the United States had violated Article 36(1)(b) of the Vienna Convention by failing to inform Medellin and 50 other Mexican nationals of their rights under the Vienna Convention. The ICJ held that the United States was obligated to review these convictions and that procedural default rules of the state and federal courts should not be a barrier.

President George Bush entered the mix after receiving the ICJ decision. Bush ordered state courts to give affect to the ICJ’s decision.

In considering the claims of Medellin, the Supreme Court first considered whether the ICJ judgment constituted a binding obligation on the federal courts and the state courts of the United States. Medellin invoked the supremacy clause to argue that the Vienna Convention was a supreme law of the land and that state law or federal rules preempting certain post-conviction relief matters must yield.

The supreme court recognized that treaties may comprise international commitments, but they are not binding domestic law unless Congress has enacted implementing statutes or the treaty conveys an intention that it is self-executing. The court observed that there is no self-executing language and that the signatories of the Convention understood that if a state failed to perform an obligation under a judgment of the ICJ, then the other parties to the action could petition the United Nations Security Council for assistance. This was the understanding at the time of ratification.

The court next turned to the contention that the ICJ judgment was binding on state courts by virtue of George Bush’s declaration that it was. The court observed that the President has a number of political and diplomatic means available to enforce international obligations, but unilaterally converting a non-self-executing treaty into a self-executing one is not among them. Congress has the responsibility of passing legislation if it desires to transform a non-self-executing treaty into a self-executing treaty. The President cannot assume legislative power under our Constitution.

Accordingly, the Supreme Court affirmed the Texas Court of Criminal Appeals and its refusal to re-exam Medellin’s claims based on the directives of the ICJ and President Bush.

SCOTUS removes much discretion from trial judges in Batson hearings

On March 19, 2008, the Supreme Court decided Snyder v. Louisiana. In this case Snyder was convicted of first degree murder in Louisiana and sentenced to death. The case for before the Supreme Court dealt with a decision of the Louisiana Supreme Court to reject Snyder’s claim that the prosecution violated Batson v. Kentucky, when it allegedly used some of its preemptory jury challenges based on race.

The Court focused on a strike used on Jeffrey Brooks, a college senior who was also student-teaching. In offering race-neutral reasons for striking Mr. Brooks, the prosecutor informed the trial court that Brooks looked nervous during questioning and that Brooks raised the concern that he would miss class. The prosecutor stated “my main concern is for that reason…that being that he might, to go home quickly, come back with guilty of a lesser verdict so there wouldn’t be a penalty phase.”

The Supreme Court noted that the trial judge has much discretion when evaluating race-neutral reasons for striking a juror. The Court further noted that “deference is especially appropriate where a trial judge has made a finding that an attorney credibly relied on demeanor in exercising a strike.” However, the Court found nothing in the record to show that the trial judge actually made a determination regarding Mr. Brooks’ demeanor. The trial judge should have made a specific finding in the record. Because there was no specific finding in the record, the Court refused to presume that the trial judge credited the prosecutor’s assertion that Mr. Brooks was nervous.

With regard to Mr. Brooks’ concern about missing student teaching time, which was supported by the record, the Court found that this scenario was highly speculative. “Even if Mr. Brooks had favored a quick resolution, that would not have necessarily led him to reject a finding of first-degree murder. If the majority of jurors had initially favored a finding of first degree murder, Mr. Brooks’ purported inclination might have led him to agree in order to speed the deliberations. Only if all or most of the jurors had favored the lesser verdict would Mr. Brooks have been in a position to shorten the trial by favoring such a verdict.”

The court also cited that the trial was very short. The Court believed the prosecutor anticipated a short trial and thus would have known that jury service would not have seriously interfered with Mr. Brooks’ ability to complete his student teaching. This fact, in the Court’s mind, rendered the prosecution’s justification for striking Mr. Brooks “suspicious.” The Court’s suspension was reinforced by the prosecutor’s acceptance of white jurors who disclosed conflicting obligations that, in the Court’s opinion, “appeared to have been at least as serious as Mr. Brooks’.” Accordingly, the Supreme Court held that the trial court committed clear error in its ruling on the Batson objection.

Justice Thomas and Justice Scalia dissented. The dissenters argued that the majority was “only playing lip service to the pivotal role of the trial court” in evaluating a Batson challenge. The dissenters would have deferred to the trial court’s expertise in making credibility determinations and would have affirmed the judgment below.”

I believe that the Supreme Court’s decision will only lead to more appellate litigation of Batson issues. This opinion, unfortunately, strips the trial judges of much discretion in handling Batson challenges. Only a trial judge, thoroughly familiar with a particular situations and the lawyers involved can make a decision on whether a ground supporting a strike is neutral rather than discriminatory. Batson hearings usually happen very quickly. If the defendant makes a Batson motion, the prosecutor (in my experience) receives 10 to 15 minutes to gather his thoughts and to explain his strikes to the Court. Much of this depends on the prosecutor’s demeanor and the Court’s “feel” for the situation. This real-world discretion required to handle Batson challenges has now been stripped by Snyder v. Louisiana.

We must also not forget that Batson applies to civil cases as well. There is nothing in the Court’s opinion in Snyder to indicate its holding is limited to criminal cases. Hence, the Supreme Court has made trial practice for the ordinary lawyer much more difficult.

SC Supreme Court hears Home Gold Conflict of Interest Issue

At issue is the trial court's ruling that found a conflict of interest because Bill Bannister represented certain witnesses and John M. "Jack" Sterling in interviews with agents investigating the failures of Carolina Investors and HomeGold. The witnesses are now ready to roll on Sterling. Sterling never waived attorney-client privilege, and the only parties that were unquestionably aware of the representation of multiple parties were the attorney and the state.

The Greenville News has this story.

Smart money is on the right to bear arms being an individual right

"A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed. "

By all accounts, arguments went well yesterday in Heller. The Court seems primed to reject the assertion that the right to bear arms exists only in connection with state-regulated militias. If gun ownership is limited to "state militias," Chief Justice Roberts asked, why does the Constitution say "the right of the people"?

It is no different than if the First Amendment were prefaced with "An educated population being necessary to intelligent use of the franchise, Congress shall make no law abridging the freedom of the press." Surely, no one would argue that the freedom of the press is limited to educational setting because of the prefatory language. It is really the same thing with the Second Amendment. The right is an individual right.

Good cause requirement for sex offender registration interpreted broadly

In State v. Hicks, Hicks was indicted for criminal sexual conduct with a minor (Victim). At trial, Hicks pled guilty to the lesser offense of assault and battery of a high and aggravated nature. (ABHAN). Although ABHAN, the crime to which Hicks pled guilty, is not included in the list of crimes for which sex offender registration is required under Section 23-3-430 of the South Carolina Code , Section D of the statute provides that:"[U]pon conviction, adjudication of delinquency, guilty plea, or plea of nolo contendere of a person of an offense not listed in this article, the presiding judge may order as a condition of sentencing that the person be included in the sex offender registry if good cause is shown by the solicitor." The judge required Hicks to register as a sex offender. Hicks appealed and the Court of Appeals affirmed:

Hicks contends the State failed to show “good cause” sufficient to require him to register as a sex offender. In the reconsideration hearing, the court heard from Victim’s father that, contrary to defense counsel’s statement during the initial sentencing, Hicks did indeed know where Victim lived; Hicks lived within a half mile of Victim’s house. Describing the nature of Hicks’ behavior, Victim’s father stated Hicks had been by Victim’s house on numerous occasions, both before and after the ABHAN. During the course of several of these occurrences, Hicks made gestures towards Victim’s father that could be interpreted as confrontational or predatory.

The court also heard from Victim’s mother a second time, but she was limited to providing information she had not given during the initial sentencing. She confirmed Victim’s father’s statement that, not only did Hicks know where Victim lived, but that it was her understanding from Victim that Hicks had actually been in Victim’s house on two occasions. This new information combined with the previous statements Victim’s mother made regarding the many girls, similar in age to Victim, who lived in the same neighborhood within a half mile of Hicks, supports the circuit court’s finding that good cause was shown.

This seems pretty flimsy to have someone register as a sex offender. So Hicks knows where the Victim lives and has mad gestures towards her. The circuit court already had included as a condition of probation that Hicks not live within five miles of Victim’s family and have no contact with the family or Victim. That seems a much better and more logical protection than having him register as a sex offender.

SCOTUS to hear arguments in DC guns case today

ScrippsNews has this article.

This is probably the most important case of the term. I'll post more on this topic later.

Notice and Hearsay

In Thomas v. Dootson, the central issue of the case was whether Dr. Dootson had notice that a surgical drill overheated prior to the injury to the patient. Testimony was offered that an assistant had told Dootson that the drill had malfunctioned on prior occasions. This testimony was objected to as hearsay. The Court held that it was not hearsay because it was not offered for the truth of the matter, but notice.

“‘Hearsay’ is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.” Rule 801(c), SCRE. Conversely, statements offered not for the truth of the matter asserted, but rather as evidence of notice, do not constitute hearsay. Player v. Thompson, 259 S.C. 600, 610, 193 S.E.2d 531, 535 (1972).

From an evidentiary standpoint, the facts and analysis in Player mirror those in this case. In Player, the court held testimony a filling station attendant told the defendant she had slick tires prior to the accident did not constitute hearsay. Id. The testimony was not offered to prove the tires were slick, but only to establish the defendant had notice of her tires’ condition prior to the accident. Id. Other evidence established the slickness of the tires. Id.

Similarly in this case, Thomas attempted to offer additional testimony from Rivers that Dr. Dootson had been warned the drill was hot prior to the injury. The trial court improperly ruled the statement was hearsay. The testimony, just as in Player, was not offered for the truth of the matter asserted, but rather as evidence of notice. The argument for admissibility is at least equally strong here as in Player, for here we are presented with a concession concerning the defective condition of the surgical drill. It was error to exclude this testimony.

But doesn't having notice depend on the statements being truthful?

South Carolina Supreme Court hints that SC might recognize tort for spoliation of evidence

In Austin v. Beaufort County, Austin sued the sheriff's department after the department destroyed evidence related to the drug overdose of Austin's son. Austine claimed she was entitled to damages because the destruction of evidence impaired her ability to bring a wrongful death action. In an amended complaint, Austin explained her theory regarding her son's death as follows: “On July 25, 2001, decedent was assaulted by unknown assailants who inflicted bodily injuries and a fatal dose of drugs on decedent.” The trial court granted summary judgment and the Supreme Court affirmed. In affirming, the Court hinted that SC law might recognize a tort claim for spoliation.

Under the particular facts of the instant case, it is clear that appellant’s allegations do not rise to the level of stating a claim. First, although appellant contends there is a potential wrongful death action, no tortfeasor has been identified, beyond the “unknown assailants” mentioned in the complaint. Therefore, it is merely speculative that a potential civil action for wrongful death exists. Second, it obviously follows that the Sheriff’s Office, could not have actually known of the potentiality of a lawsuit, especially given the fact that the Sheriff’s Office apparently concluded that Bair’s drug overdose had been self-inflicted. Certainly, appellant never notified the Sheriff’s Office of the fact that she sought to pursue a civil lawsuit related to her son’s death.

SC Supreme Court holds that plaintiff may bring negligent hiring and supervision claim even after the employer admits vicarious liability

In James v. Kelly Trucking Co., the Supreme Court considered whether a plaintiff in South Carolina is precluded, as a general matter, from maintaining a cause of action for negligent hiring, training, supervision, or entrustment after an employer stipulates that it is vicariously liable for its employee’s negligence. The court held that the plaintiff would not be precluded:

Primarily, we think the argument that an independent cause of action against an employer must be precluded to protect the jury from considering prejudicial evidence presumes too much. Our court system relies on the trial court to determine when relevant evidence is inadmissible because its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury. Rule 403, SCRE. Similarly, we rely on the trial court to craft instructions describing what a jury may or may not infer from a particular piece of evidence, and we grant the trial court discretion to give such instructions to the jury at the time such evidence is introduced, when charging the jury at the close of the case, or at any proper time in between. In our view, the argument that the court must entirely preclude a cause of action to protect the jury from considering prejudicial evidence gives impermissibly short-shrift to the trial court’s ability to judge the admission of evidence and to protect the integrity of trial, and to the jury’s ability to follow the trial court’s instructions.

Check out Blawg Review #150

For the best posts on law related matters from last week, please drop by Trust Advisor for the the hosting of Blawg Review # 150.

Fourth Circuit holds that to be convicted of aggravated indentity theft a defendant must assume the identity of a specific person

In UNITED STATES v. MITCHELL, Mitchell used a false driver’s license and counterfeit checks in the name of Marcus Jackson to buy merchandise and return it for cash refunds. He was convicted of aggravated identity theft. Mitchell argued that the district court erred when it held as a matter of law that the use of another person’s name by itself constitutes the use of a means of identification of another person (a specific individual) under § 1028A. The Fourth Circuit agreed:

As we have said, a bare name may not be sufficiently unique — indeed, it is not likely to be sufficiently unique — to identify a specific person. That is the case here, as the undisputed evidence confirms. Two persons named Marcus Jackson have a driver’s license issued by the Georgia Department of Driver Services. The false Georgia driver’s license used by Mitchell bore the name Marcus Jackson, but that name used alone did not identify one of the real Marcus Jacksons. In other words, the name alone was not sufficient to identify a specific Marcus Jackson, as required by the statute.

Scalia on the Living Constitution

Got to love Scalia. The man lays it on the line.

Scalia compared the philosophical shift on the Constitution with the sales pitch of a stock broker who tells a wary investor that poor economic performance is merely a case of the markets resting before climbing again.

"Get real. The stock market is not a mountain climber, and the Constitution is not a living organism," Scalia said. "It's a legal document."

Fourth Circuit issues opinion on standing

In NEESE v. JOHANNS, tobacco producers challenged the Secretary of Agriculture’s implementation of the Fair and Equitable Tobacco Reform Act of 2004 ("FETRA"). The Act authorized the Secretary to offer buy out contracts to tobacco producers who had previously operated under a fixed quota system, which had been in place since the late 1930s. The producers accepted a series of contracts for annual payments over the course of ten years and then assigned those contracts, and all accompanying rights, to third parties in exchange for a lump sum payment. After the assignment, the producers argued that the Secretary improperly calculated their contract payouts under FETRA and asserted an entitlement to additional payments. The Fourth Circuit affirmed the district court's decision that the producers lacked standing.

To have standing to bring this action, appellants must allege a "personal injury fairly traceable to the defendant’s allegedly unlawful conduct and likely to be redressed by the requested relief." Allen v.Wright, 468 U.S. 737, 751 (1984). To satisfy the injury-in-fact element, a plaintiff must demonstrate "an invasion of a legally protected interest which is . . . concrete and particularized." Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992).

In this case, any claim to a specific sum of money must flow from the contractual relationship between the Secretary and the producer. See 7 U.S.C. § 518b(a) ("The Secretary shall offer to enter into a contract. . . under which the producer of quota tobacco shall be entitled to receive payments under this section . . . .") (emphasis added). Appellants, however, cannot maintain such a claim. After accepting the Secretary’s offer of payment contracts without reservation and entering into those contracts, they transferred all their rights under those contracts to third parties. Quite simply, appellants have no rights left to invoke and, therefore, lack standing to pursue further contracts or payments from the Secretary.

Night out on the town for Ricky Raccoon

Only in South Carolina do have opinions like the one in Singleton v. Sherer. A mild mannered raccoon comes home after a night on the town and takes a hunk out a its owner and others. Lawyers are called and pleadings filed. This opinion could only be better if a possum had done the damage. The facts are pretty straightforward:

A raccoon bit Roger Singleton while he was on George Sherer and Julie Underwood’s jointly owned property. Approximately a year before this incident, Singleton rescued the raccoon from the yard of a home where he was delivering furniture “but wanted someone else to take care of it.” Subsequently, Underwood agreed to take the raccoon. According to Singleton, he was familiar with the raccoon from the time it was removed from the wild and placed in Underwood’s care. Indeed, Singleton “would come to [Underwood’s] home from time to time and was often around the [raccoon]. He would play with the raccoon and he liked it.”

Singleton testified the raccoon was neither vicious nor dangerous and had never bitten anyone prior to the incident. The night before the incident, the raccoon escaped from his outdoor pen and reappeared the next morning in a “disheveled” state. After letting the raccoon into the house, Underwood attempted to calm the animal by picking him up and feeding him. However, when her dog entered the room, the raccoon bit Underwood’s arm severing an artery and median nerve. Underwood was taken by ambulance to the emergency room accompanied by her children.

Being afraid Ricky Raccoon would hurt her dog, Underwood calls her father, who then call Singleton for help. The father told Singleton to wait for him to arrive with nets and other equipment to subdue the creature, but Singleton entered the home alone and was attacked by the raccoon (apparently still suffering ill effects of its night on the town).

Singleton brought suit alleging that Underwood was negligent. The trial court found no negligence and also concluded that even if Underwood was negligent Singleton’s own negligence was, as a matter of law, greater than any negligence attributable to Underwood. The Court of Appeals affirmed:

The undisputed facts establish Singleton freely and voluntarily exposed himself to a known danger which he understood and appreciated. By Singleton’s own admission, his actions on the day of the incident were “pretty stupid.” Any factual issues which might exist as to Sherer and Underwood’s contributory negligence cannot alter the inescapable conclusion Singleton’s negligence exceeded fifty percent. Under South Carolina jurisprudence, where evidence of the plaintiff’s greater negligence is overwhelming, evidence of slight negligence on the part of the defendant is simply not enough for a case to go to the jury. See Hopson v. Clary, 321 S.C. 312, 314, 468 S.E.2d 305, 307 (Ct. App. 1996) (noting where the evidence as a whole is susceptible to only one reasonable inference, no jury issue is created). The trial court did not err in barring Singleton’s claim under the assumption of risk doctrine because Singleton was more than fifty percent at fault in causing his injuries.

Yep, once your client admits his own actions were "pretty stupid," summary judgment typically follows.

SCOTUS opinion could potentially create new flood of ERISA suits

Until the decision of the United States Supreme Court in LaRue v. DeWolff, Boberg & Associates, Inc., employee benefit plan participants who sued plan fiduciaries for investment losses in their retirement account faced significant legal hurdles to recovery. In LaRue, an opinion released February 20, 2008, the Court removed most of those hurdles, potentially opening the floodgate to new lawsuits. As fiduciaries of employee benefit plans are personally liable for losses to the plan, this decision represents a significant expansion of the liability faced by fiduciaries.

The fact scenario in LaRue was straightforward: LaRue’s employer offered a 401(k) plan to itsemployees. Plan participants could direct the investments in their individual accounts.According to the allegations, LaRue gave instructions to the plan fiduciary to make changes inthe investment of his individual account. For whatever reason, those instructions were notfollowed. As a result, La Rue’s account was allegedly worth $150,000 less than it would havebeen had his instructions been followed. LaRue sued the plan fiduciary for his investmentlosses.The Employee Retirement Income Security Act (“ERISA”) governs the enforcement of claimsinvolving employee benefit plans.

Since the U.S. Supreme Court’s decision in MassachusettsMutual Life Ins. v. Russell in 1985, a participant’s ability to recover for individual losses due toan alleged fiduciary breach has been significantly limited. In Russell, a plan participant receivedher benefits, but sued the plan fiduciary for damages allegedly resulting from a delay inprocessing her benefit claim. The Court ruled that while ERISA Section 502(a)(2) allowedrecovery for fiduciary breaches damaging the plan as a whole, it did not allow recovery fordamages to an individual participant.

After Russell, unless a disgruntled plan participant couldallege a class-action type of harm, the ability to recover for individual losses appeared severelylimited.In LaRue, however, the Court opened the door for individual participant lawsuits by focusing onthe type of retirement plans at issue: the plan in Russell was a defined benefit plan, and the planassets were not affected by the alleged breach about which the participant complained.

TheLaRue Court reasoned that with a 401(k) plan (a defined contribution plan), an individualparticipant’s account was a part of the plan’s assets, and therefore, investment losses to anindividual account affected the plan.

S.C. Supreme Court clarifies Baggerly decision and admission of expert testimony

In Fields v. J. Haynes Waters Builders, the state supreme court revisited the admission of expert testimony. On of the issues at stake was whether the initial inspector of the Fields’ home, was qualified to testify as an expert witness inasmuch as he failed to comply with South Carolina’s home inspection licensing requirements. This gave the Supreme Court a chance to revisit Baggerly v. CSX Transportation, Inc., 370 S.C. 362, 635 S.E.2d 97 (2006), in which the Court rejected the legislature's attempt to require certain professionals to be licensed in SC before they could offer expert testimony.

This case throws an important aspect of our decision in Baggerly into sharp focus. Baggerly properly recognizes that local licensing requirements are arguably inconsistent with Rule 702’s operational framework for expert testimony. Rule 702 does not contain a set of mandatory qualifications that a witness must meet in order to be qualified as an expert. Instead, Rule 702 recognizes that there are a variety of ways in which a person can become so skilled or knowledgeable in a field that their opinion in a scientific, technical, or specialized area can assist the trier of fact in determining a fact or in understanding the evidence. Because a specific licensing requirement is potentially inconsistent with the variety of ways a person may gain specialized knowledge, Baggerly recognizes that a trial court’s decision to refuse to qualify a person as an expert based solely on the failure to meet a licensing requirement arguably impairs the truth-seeking function of courts.

At the same time, however, this Court’s jurisprudence emphasizes the role of the trial court as the gatekeeper in determining both the qualifications of an expert and whether the expert’s testimony will assist the trier of fact. See State v. Council, 335 S.C. 1, 20, 515 S.E.2d 508, 518 (1999). While Baggerly makes it clear that non-compliance with licensing requirements or with the statutory law in specialized areas should not require, a fortiori, a trial court to refuse to qualify a witness as an expert, Baggerly does not stand for the proposition that a trial court should not consider these factors when judging a purported expert’s qualifications. Instead, Baggerly supports the notion that in determining a witness’s qualification as an expert, the trial court should make an inquiry broad in scope. Specifically, the trial court ought to take into account the factors delineated in the rules of evidence, the statutory law, and any other sources of authority that may be relevant to a purported expert witness’s level of skill or knowledge; and the trial court must further determine whether the offered testimony will assist the trier of fact. In this case, the trial courtappears to only have considered the fact that Flaherty did not have the required license from the State of South Carolina. In our view, the trial court cannothave such a solitary focus. Although lack of licensing and violations of statutory law may often coincide with a lack of specialized skill or knowledge, these attributes are not always bedfellows.

In other words, not being licenses is a relevant factor a court can consider, but it is only one piece in the puzzle of expert qualification.

Guilty pleas keep wheels of justice turning

The Greenville News has an interesting article in today's paper about the number of guilty pleas in state court. I know that civil jury trials are becoming rarer, but this appears to be the case for the criminal trial too . Only 89 cases out of 6,800 total criminal defendants in 2007 made it to a jury.

SCOTUS rules on medical device preemption

The United States Supreme Court, in Riegel v. Medtronic, sided with the majority of the federal circuit courts today, holding that federal law regulating medical devices preempts common law tort actions that would impose different or additional requirements than those approved by the federal Food and Drug Administration (“FDA”). This ruling puts to rest a long running dispute over whether there is federal preemption for medical device product liability lawsuits, but may have opened the way for an even longer dispute on the scope of that preemption.

Affirming the Second Circuit, the Supreme Court held that FDA premarket approval of a medical device under the Medical Device Amendments of 1976, 21 U.S.C. § 360(k), precludes common law claims challenging the safety or effectiveness of the medical device. The Court agreed with Medtronic that obtaining the FDA’s safety and efficacy approval pursuant to stringent premarket approval process established certain federal requirements for the medical device. The Court held that common claims based upon different or additional requirements were preempted by the Medical Device Amendments of 1976.

Justice Scalia, who delivered the opinion of the Court, broadly confirmed federal preemption for any state law requirements different from or additional to those imposed by the FDA on approved medical devices. The Court specifically declined to adopt a more narrow view (once espoused by the FDA but now abandoned) that the statute only preempted requirements specific to medical devices, not requirements of general applicability to all types of products.

Curative instructions and mistrial motions

In State v. Ferguson, Ferguson was convicted of murder and possession of a firearm during the commission of a violent crime. During the second day of trial, in response to a question about Ferguson’s behavior at the time of the shooting, Ferguson's Girlfriend responded that Ferguson allegedly told her she “was next.” Defense counsel asked the court to strike Girlfriend’s response as unresponsive to the question asked. Ferguson’s counsel requested a mistrial, contending the court should strike Girlfriend’s answer because the State did not notify the defense, in writing and during discovery, about Ferguson’s alleged statement. The court sustained Ferguson’s objection, ruling Girlfriend’s answer to the solicitor’s question was unresponsive. However, the court denied Ferguson’s motion for a mistrial, finding a curative instruction to the jury would overcome any potential prejudice to Ferguson. The Court of Appeals affirmed the denial of the mistrial motion.

We find the trial court properly exercised its discretion in deciding to give a curative instruction rather than granting Ferguson’s motion for a mistrial. We additionally find the court cured any potential prejudice to Ferguson with its instruction to disregard Girlfriend’s response to the question posed by the solicitor. Here, as in Edwards, the trial court’s curative instruction was simple, and the court refrained from reiterating or emphasizing the unresponsive answer. Accordingly, we find the instruction cured any potential prejudice, and we hold the trial court properly exercised its discretion in denying Ferguson’s motion for a mistrial.

This seems like a close call. On a statment such as "you are next," if that was not supposed to come in, I don't see how a curative instruction does any good at all. There is no way to put the genie back in the bottle. The court should have granted the mistrial motion.

SCOTUS to reconsider the exclusionary rule

The Supreme Court agreed Tuesday to reconsider the reach of the "exclusionary rule," a doctrine that has been controversial since the 1960s because it requires judges to throw out evidence if it was obtained improperly by the police.

The precise question presented is: "Whether the Fourth Amendment requires evidence found during a search incident to an arrest to be suppressed when the arresting officer conducted the arrest and search in sole reliance upon facially credible but erroneous information negligently provided by another law enforcement agent."

This should be a fun one to watch. The case is Herring v. United States, No. 07-513.

SCOTUS declines to hear domestic spying case

From Reuters:

The Supreme Court on Tuesday turned down a legal challenge to the warrantless domestic spying program President George W. Bush created after the September 11 attacks.
The American Civil Liberties Union had asked the justices to hear the case after a lower court ruled the ACLU, other groups and individuals that sued the government had no legal right to do so because they could not prove they had been affected by the program.

Department of Justice meets with Fountain Inn Police

From the Greenville News:

A U.S. Department of Justice representative who specializes in mediating racial and ethnic conflicts met behind closed doors Monday night with Fountain Inn officials and members of the community to address complaints about the city's police.

Fountain Inn Mayor Gary Long said "a lot" of members of the community as well as he and the city's police chief attended the mediation session, which came after the death of an inmate in the city's jail last year.

Light Blogging This Week

I'll be out in the field meeting with clients and interviewing witnesses for a 2255 case I am working on.

Check back next week for more posts.

Memo to self: Don't help any of your criminal clients escape

From Law.com:

An attorney charged with smuggling a 14-inch saw blade to a jailed client was sentenced to five years in prison Thursday, although nearly one year will be subtracted because the lawyer has been jailed since his arrest last February.

Albany, Ga., attorney William P. Keenan was representing Dareon Varner against charges of armed robbery, aggravated assault and possession of a firearm during the commission of a felony when, last Feb. 22, the lawyer slipped Varner the blade. According to Keenan's indictment, he first gave Varner a photo of the blade, then later supplied the actual weapon to the inmate, who was later caught with the blade and a diagram of the outside area of the jail.

State House Judiciary Committee declines to organize a commission to study the "Orangeburg Massacre"

From the Greenville News:

The Judiciary Committee Chairman, Rep. Jim Harrison, a Columbia Republican, told The Greenville News, "My personal feeling is we don't need to create something that is going to create more division."

Harrison added, "Unless I heard from a broad range of people within the House that this is good for uniting us instead of dividing us, then I'm not inclined to be supportive.

Wikipedia provides this summary of the Orangeburg Massacre:

In the days leading up to February 8, 1968, around 200 protesters had gathered on the campus of South Carolina State University (located in the city of Orangeburg) to protest the segregation of All Star Bowling Lane (now called All-Star Triangle Bowl), on US 301, now SC 33). The bowling alley was owned by the late Harry K. Floyd. Students continued their days of protesting by starting a bonfire. As police attempted to put out the fire, an officer was injured by a thrown piece of banister, according to an article in Nieman Reports at Harvard University.

The police believed they were receiving small weapons fire during the incident. Protesters insist that they did not fire at police officers, but did hurl various objects (and insults) at the police. Evidence that police were being fired on was inconclusive, and there is no evidence that protesters were armed or had fired on officers.

The officers responded by firing into the crowd, killing three young men, Samuel Hammond, Delano Middleton, and Henry Smith, and wounding 27 others. Henry Smith and Samuel Hammond were SCSU students; Delano Middleton, a local high school student, was seventeen.

Fourth Circuit holds that a knowing waiver to jury trial is not dependent upon a good attorney-client relationship

In United States v. Boynes, Boynes argued that he "could not have" knowingly, intelligently and voluntarily waived his right to a jury trial because his relationship with his attorney was "characterized by adversarial contentious interactions." The Fourth Circuit rejected this argument.

A knowing, intelligent, and voluntary waiver and contentiousattorney-client interactions are not mutually exclusive. Although there are no doubt circumstances calling into question the validity of a jury waiver that would require reversal if not sufficiently resolved by the district court, that is certainly not the case here. On this record we are presented with a presumptively valid written waiver, a full hearing on the validity of the waiver in open court, and a judicial finding that the waiver is knowing, intelligent, and voluntary. The district court noted there is "no evidence" that Everhart filed the motion to waive jury trial without Boynes’ consent.

Bill proposes change in SC drinking age for solidiers

State Rep. Fletcher Smith, D-Greenville, is trying to jar loose from a House subcommittee a bill that would exempt military personnel ages 18 to 20 from the state's minimum age for purchasing and possessing alcoholic beverages of 21.

"It treats our military personnel like the adults and heroes we say they are," Smith said. "If you can take a shot on the battlefield, you ought to be able to take a shot in a bar."

The Greenville News has this story.

John McCain and Judicial Nominations

Stephen Calabresi and John McGinnis have this op-ed in the WSJ. Here is a snippet:

We believe that the nomination of John McCain is the best option to preserve the ongoing restoration of constitutional government. He is by far the most electable Republican candidate remaining in the race, and based on his record is as likely to appoint judges committed to constitutionalism as Mitt Romney, a candidate for whom we also have great respect.

We make no apology for suggesting that electability must be a prime consideration. The expected value of any presidential candidate for the future of the American judiciary must be discounted by the probability that the candidate will not prevail in the election. For other kinds of issues, it may be argued that it is better to lose with the perfect candidate than to win with an imperfect one. The party lives to fight another day and can reverse the bad policies of an intervening presidency.

Judge John Kittredge vows restraint as justice

From the Greenville News:

Kittredge said today that he "was grateful to God for the opportunity" and that he would ensure that he would honor what called the necessary judicial restraint required of a Supreme Court justice.

"The two finest qualities in a judge are humility and restraint," he said. "I believe very strongly in the rule of law and following the law instead of creating it from the bench on a case-by-case basis. I believe adjudicators ajudicate and legislators legislate. I think judges should not cross the line from adjudication to legislation."

Congratulations to Judge Kitteredge on his election.

Kittredge to Supreme Court and Konduros to Court of Appeals

Judge John W. Kittredge is now running unopposed for the state Supreme Court and Judge Aphrodite K. Konduros is running unopposed for the state Court of Appeals.

Making partner at the big firm

The Snark has some great humor here. As usual, he is on the money.

Fourth Circuit holds that FLSA's "consent in writing" requirement does not apply in arbitration proceeding

In LONG JOHN SILVER’S v. COLE, the Fourth Circuit considered whether an employee can be made a party to an FLSA-related civil proceeding without his consent. At base, FLSA § 16(b) contains a consent in writing provision requiring that the employee submit a written statement that he desires to be part of the class. AAA Class Rules do not require opt-in in writing, and the arbitration agreement called for the application of the class rules. LJS argued that FLSA 16(b) created a substantive right that is not waivable.

The Fourth Circuit rejected the LJS contention. The Court found "uncertainty as to whether Congress intended to apply the FLSA § 16(b) provision’s 'consent in writing' requirement in arbitration proceedings," and concluded that the arbitrator was not, therefore, bound by any "clear principle of law" in rendering the Award. The text and legislative history cited by LJS was ultimately not persuasive.

Although LJS’s references to the text and legislative history of the FLSA reassure us of Congress’s intention that the "opt-in" procedure should apply in arbitration as in court proceedings, they fail to also convince us that Congress expressly intended that the "opt-in"procedure could not be waived by the parties’ agreement to an alternate procedure.

Supreme Court reduces attorney fee award in TERI cases

In Lyman v. State, the Supreme Court considered the trial court's award of $8 million in attorney fees to lawyers who garnered an order holding that an act of the General Assembly requiring certain state retirement plan participants to continue to pay into the state retirement system breached a legislatively-created contract as to the class of TERI participants and requiring the return of contributions made by all TERI participants. The trial court awarded fees under the state action statute, but the Supreme Court reversed.

In our view, utilizing common fund methodology when awarding attorneys’ fees pursuant to a fee-shifting statute is wholly inappropriate in light of the underlying theoretical distinction between a common fund source of attorneys’ fees and a statutory source of attorneys’ fees. Although both sources are exceptions to the general rule that each party is responsible for the party’s own attorneys’ fees, the common fund doctrine is based on the equitable allocation of attorneys’ fees among a benefited group, and not the shifting of the attorneys’ fee burden to the losing party. This Court certainly acknowledges that a percentage-of-the-recovery approach may be appropriate under circumstances in which a court is given jurisdiction over a common fund from which it must allocate attorneys’ fees among a benefited group of
litigants. However, where, as here, a fee-shifting statute shifts the source of reasonable attorneys’ fees entirely to the losing party, we find it both illogical and erroneous to calculate fees using the methodology justified under a fee-spreading theory.

Under the trial court's calculation, the $8 million figure resulted in each lawyer for the plaintiffs earning about $6000 per hour worked. The Court further held that an award based on a percentage of the TERI plaintiffs' recovery is inconsistent with the express terms of the statutory scheme. Although the state action statute neither requires that attorneys’ fees be awarded based on an hourly rate, nor places a numerical cap on attorneys’ fees, the court found it significant "that the statute provides that attorneys’ fees assessed to the state agency may only be paid 'upon presentation of an itemized accounting of the attorney’s fees.'" According to the court, the requirement of an "itemized accounting” squarely contradicts the utilization of the percentage-of-the-recovery method in awarding attorneys’ fees under the statute.

Beware of Waiver on Appeal, Even if You Represent the Party That Won Below

Howard Bashman offers sound advice on waiver issues for parties prevailing at the trial court level.

E. Duncan Getchell Jr. asks that his nomination be withdrawn

Getchell has asked that he not be considered for a seat on the Fourth Circuit. He was to fill one of the Virginia seats, but his nomination was going nowhere because of Virginia's two senators. It will be interesting to see what Bush does now.

The Washington Post has this article.

South Carolina Supreme Court rejects medical battery cause of action

In Linog v. Yampolsky, the South Carolina Supreme Court declined to recognize the tort of medical battery. According to the court:

In light of the availability of a medical malpractice claim or a civil battery claim to any patient that is injured by a physician, we believe medical battery would constitute an unnecessary and superfluous cause of action. We see little need to recognize an additional cause of action related to tortious injuries arising out of interactions with medical providers when the tort of medical malpractice fully covers all acts performed in relation to medical services and when the remaining area of private tort law applies to acts not related to medical services. Accordingly, we limit the holdings of Hook, Harvey, and Banks to the extent that they indicate that our State recognizes medical battery and hold that no independent cause of action for medical battery exists in South Carolina. We further hold that in order for a patient to pursue a claim stemming from a situation involving lack of or revocation of consent, a physical touching within the medical context, and a resulting injury, the patient must bring this claim under the medical malpractice framework.

Expert opinion issues arise in Court's affirming conviction of Earle Morris

In State v. Morris, the Supreme Court affirmed the conviction of Earle Morris in the Carolina Investors/HomeGold debacle. On of the more interesting and far reaching aspects of the opinion deals with expert testimony. At trial, the State offered Gregory B. Adams as an expert in corporate and securities laws. Morris argued that Adams was not qualified to opine on issues of corporate and securities laws in South Carolina because Adams is not licensed to practice law in South Carolina. The Supreme Court disagreed and held that generally, "defects in the amount and quality of an expert’s education or experience go to the weight to be accorded the expert’s testimony and not to its admissibility. In South Carolina, expert testimony is admissible where the testimony will assist the trier of fact in understanding the evidence or determining a fact in issue." The Court further held that "the status of Adams’ law license is completely irrelevant to his qualification as an expert. The evidentiary rule governing the qualifications of experts says nothing about professional licensing requirements, and a licensing requirement seems wholly incompatible with Rule 702’s operational framework."

I think the Court went way overboard on this one. To day that the status of an expert's license is "completely irrelevant" to his qualification as an expert is an absurd statement. I know the Supreme Court and the General Assembly are in a turf war over whether the legislature can impose statutory restrictions on expert testimony. But to make such a broad statement about licensure is reckless. Surely when an expert's field is subject to licensure, the holding or failing to hold the requisite license is relevant to the expert's qualification. Perhaps licensure in not dispositive in all cases, but it surely is relevant.

Monday Humor

New Year's Resolutions for lawyers. Here is a taste:



SPEND MORE TIME WITH LOVED ONES


Here's where your lawyering skills come into play because this could seriously eat into your billable hours. After all, what exactly constitutes "more time," and who falls into the "loved ones" category? Where are the code definitions for these terms, anyway? Is there any applicable legislative history? Or has this stuff even made it out of the public notice and comment period yet?
Sure, you could resolve to come into work late Wednesday mornings and take the kids to school, but why get your children accustomed to such luxuries? You know you can't sustain such a regular schedule of child involvement. Worse yet, don't go volunteering to coach Little League. You'll not only anger the partners who need you to stay late, you'll also disappoint your own kids and dozens of innocent children of other parents too busy to impart the wisdom of the slap bunt.
A more realistic resolution within the spirit of this one: Call when you are going to be home late. This is a completely attainable goal. Just ask your assistant to set your phone to dial home each night at the necessary hour with a prerecorded message: "Honey, I am running late. Something came up. I'll be home soon! Love you!"

Bush could fill court vacancies

Here is an interesting op-ed by Carl Tobias on the Fourth Circuit and Dubya's failure to nominate folks to fill vacant slots:

If Bush hopes to fill the Luttig vacancy in 2008 when the presidential election slows judicial confirmations, he should work with Virginia's senators to find a consensus nominee. The place to start (and end) is the five highly-qualified consensus candidates designated in the careful, bipartisan approach that Warner and Webb employed. If Bush ignores the five and the senators, the next president will fill Luttig's seat.

Fourth Circuit holds that district court must give pro se petitioner notice of recharacterization of pleading as 2255 petition

In United States v. Blackstock, the Fourth circuit overruled its opinion in United States v.Emmanuel, 288 F.3d 644 (4th Cir. 2002), which held that a district court may not recharacterize a prisoner’s filing as a § 2255 petition without notifying the prisoner of its intent to recharacterize the motion, warning the prisoner of the effects of recharacterization, and giving the prisoner an opportunity to withdraw or amend his motion. However, the Emmanuel court created an exception "[i]n cases where no adverse consequences will ensue, the district court need not give the movant any notice prior to proceeding with the recharacterization." The Fourth Circuit has now rejected this exception:

Accordingly, we conclude that the Supreme Court’s decision in Castro effectively overruled Emmanuel’s exception to the notice requirement. Under Castro, notice was required before the recharacterization of Blackstock’s 2001 discovery motion; because no notice of the recharacterization was given, the 2001 motion cannot be counted as Blackstock’s first § 2255 petition.

In the Castro opinion, SCOTUS held the district court must notify the pro se litigant that it intends to recharacterize the pleading, warn the litigant that this recharacterization means that any subsequent § 2255 motion will be subject to the restrictions on "second or successive" motions, and provide the litigant an opportunity to withdraw the motion or to amend it so that it contains all the§ 2255 claims he believes he has.

SCOTUS hears voter ID case

From Voice of America:

The U.S. Supreme Court is hearing arguments Wednesday to determine whether states can require citizens to show government-issued photo identification when they go to vote.
The case comes from the midwestern state of Indiana, which passed a strict identification law in 2005. Indiana Republicans passed the legislation on party lines, saying it would reduce voter fraud.

Democrats and other opponents argue the law addresses a type of fraud that rarely occurs. They also say it hinders poor, elderly and minority residents from voting because they are likely to not have the proper identification. Those groups tend to vote for Democrats.

Banishment an issue in Georgia

In 2008 we don't hear to much about folks being banished for certain crimes. Well, in Georgia the appellate courts are dealing with this issue. Gregory Mac Terry, who has spent the past 12 years in prison after pleading guilty on allegations that he had threatened his estranged wife, had an opportunity for parole in 2001, but he was returned to prison because his banishment from all but one of Georgia's 159 counties meant he couldn't complete a work release program that was not available in Toombs County.

The Georgia Constitution says that "[n]either banishment beyond the limits of the state nor whipping shall be allowed as a punishment for crime." But Terry's attorney says in some counties it's common for judges to employ what he calls a disingenuous technique to get around that -- banishing defendants from all but one county.

The Daily Report has this article on the case.

SCOTUS unlikely to overturn 3-drug cocktail for executions

From the LA Times:

The Supreme Court gave a skeptical hearing today to lawyers who are challenging the use of lethal injections to carry out executions in the United States.Death penalty foes had hoped the high court was about to rein in the most commonly used method of execution, but there were few signs of that during today's oral argument.Instead, in comments and questions, most of the justices said they were not convinced that the commonly used, three-chemical compound causes inmates to die a painful death. They also said they were not convinced a better method was available.

Hon. Edwin Messe to speak to Greenville Federalist Society on January 14

One third of the active seats on the U.S. Court of Appeals for the Fourth Circuit are vacant. These vacancies threaten the prompt administration of justice, long held to be a hallmark of the Fourth Circuit. To discuss the Fourth Circuit vacancies and broader issues related to the federal judicial confirmation process, the Greenville Lawyers Chapter of the Federalist Society has invited Edwin Meese III. Mr. Meese served as the 75th Attorney General of the United States from February 1985 to August 1988. As the nation's chief law enforcement officer, he directed the Justice Department and led international efforts to combat terrorism, drug trafficking and organized crime. In 1985, he received the Government Executive magazine's annual award for excellence in management. From January 1981 to February 1985, Mr. Meese held the position of Counsellor to the President – the senior position on the White House Staff – where he functioned as President Reagan's chief policy adviser. As Attorney General and as Counsellor, Meese was a member of Reagan's Cabinet and the National Security Council. He also served as chairman of the Domestic Policy Council and of the National Drug Policy Board.

The Federalist Society invites you to this luncheon meeting of the Greenville Lawyers Chapter. The cost is $10 for lunch. Lunch will be served at noon, and the discussion will begin shortly thereafter. Adjournment is at about 1:15 p.m. RSVP to Bill Watkins at bwatkins@wcsr.com no later than January 10, 2008.

SCOTUS returns to the bench today

From Law.com:

From the moment it returns to the bench today, the Supreme Court will be embarking on a schedule that almost guarantees it will make controversial headlines in the midst of the 2008 presidential campaign.

At times in its history, the high court has deliberately stepped back from the limelight in presidential election years. But for all its talk of judicial modesty, the current Court seems to be ignoring the political calendar and saying, "Bring it on."

The Court's high-profile year begins at 10 a.m. Monday with consideration of Baze v. Rees, a challenge to the lethal-injection formula used in most executions.

The pace continues Wednesday with arguments in Crawford v. Marion County Election Board, which could affect the 2008 election directly by either upholding or striking down voter identification laws -- laws that critics say will suppress Democratic voter turnout.

Then in March the high court takes up District of Columbia v. Heller to decide the hottest-potato question in constitutional law: the meaning of the Second Amendment's right to "keep and bear arms."

And sometime soon after that, most likely, it will rule on the legal rights of Guantanamo detainees in Boumediene v. Bush, a case it first declined to review, then added to its docket.

And sometime soon after that, most likely, it will rule on the legal rights of Guantanamo detainees in Boumediene v. Bush, a case it first declined to review, then added to its docket.

All this is happening under the stewardship of Chief Justice John Roberts Jr., who said during his 2005 confirmation hearings, "I don't think the courts should have a dominant role in society." The Constitution’s Framers, Roberts continued, "would not have sat around and said, 'Let's take all the hard issues and give them over to the judges.' That would have been the furthest thing from their mind."

SC Supreme Court to Hear Greenville Smoking Ban

From the Greenville News:

Greenville's attempt to ban smoking in public places will be back on the front burner when it takes its case to the state Supreme Court on Jan. 9, according to City Manager Jim Bourey.
The city's attorney will present an oral argument at 10:30 a.m. that the city should be smoke free in most public places, officials said.

The city's ordinance to ban smoking was overturned in March of 2006 by a circuit court judge. Judge John Few ruled that the ban was unenforceable, saying it violates the state Constitution by violating a "home rule" provision. He said a city cannot prohibit conduct that isn't unlawful under state laws governing the same subject.

What is a mandate from an appellate court??

In DOE v. CHAO, the Fourth Circuit does a nice job of describing this all important appellate concept. In this Black Lung case, the district court the district court awarded claimant attorney fees for work performed on a contempt motion. However, earlier the district court had denied these fees and Doe did not appeal that ruling. Later on, the district court changed mind and did award fees after the appeal to the Fourth Circuit. The Fourth Circuit held that the denial of fees for work performed on the contempt motion became final after it decided the appeal. Because the mandate rule "forecloses litigation of issues decided by the district court but foregone on appeal or otherwise waived," the district court was not free to deviate from the mandate by reconsidering Buck Doe’s claims for attorneys’ fees that it had denied before appeal and that had not been raised by Buck Doe on cross-appeal.

At base, the Fourth Circuit affirmed that the mandate rule prohibits lower courts, with limited exceptions, from considering questions that the mandate of a higher court has laid to rest. "When matters are decided by an appellate court, its rulings, unless reversed by it or a superior court, bind the lower court." In other words, the mandate is more powerful version of what some might all the law of the case doctrine.

Prejudgment interest in South Carolina

In Dixie Bell, Inc. v. Redd, a breach of contract action arose when the parties failed to reach an agreement on the purchase price of Dixie Belle’s interest in another company. The case was tried to a jury and the jury returned a $100,000 verdict for Dixie Belle. The trial court awarded prejudgment interest on this sum. The Court of Appeals reversed. The Court held that prejudgment interest was improper because it has not been pled and that Dixie Belle’s damages,were unliquidated. In South Carolina prejudgment interest is only allowed on a liquidated sum. The claim was unliquidated because:

(1) there was no agreement between the parties as to a sum certain, (2) it could not be reduced to a sum certain by computation or formula, (3) the purchase price was not contractually stipulated, (4) it is not reduced to a sum certain by operation of law or a controlling statute, and (5) it could only be reduced to certainty by a jury determination. Furthermore, the conditions existing at the time the claim arose did not fix the measure of recovery.

On the whole, the opinion is a good discussion of the law of prejudgment interest in South Carolina.

SC Supreme Court issues personal jurisdiction opinion

In Coggeshall v. Reproductive Fertility Clinics, the plaintiff underwent in vitro fertilization in a North Carolina clinic and then brought suit when the baby was born with Downs Syndrome. The trial court dismissed because of lack of personal jurisdiction and the Supreme Court affirmed. The Court held there were insufficient contacts with South Carolina to permit the exercise of personal jurisdiction. In a concurring opinion, Chief Justice Toal found that there was personal jurisdiction, but argued that plaintiff's were essentially seeking damages directly resulting from their child being born--a claim for wrongful life, which is not permitted in South Carolina.

Thirteenth juror doctrine may not be used to grant a new trial on damages

In Coward v. Roberson, after a verdict for the plaintiff and an award of damages, the circuit judge granted a new trial on damages alone based on the thirteenth juror doctrine. The Court of Appeals reversed, holding that "the grant of a new trial based on the thirteenth juror doctrine grants a new trial in toto" and that the "thirteenth juror doctrine is not the proper vehicle for ordering a new trial on a singular issue such as damages."

This opinion is a reminder on the limits of the Thirteenth Juror Doctrine.

Truth as an affirmative defense

In Parrish v. Allison, the Court of Appeals reminds the bar that in a slander case truth must be pled and as an affirmative defense. It is not enough to argue truth, it must be pled in the answer.

Congress proposes to overhaul judicial pay and retirement

Here's the scoop on the proposed revisions.

Congress may be offering federal judges a major pay raise for the first time in 16 years, but lawmakers are also embracing a plan to deter senior judges from taking high-paying jobs in the private sector.The House Judiciary Committee approved a bill last week that will bump up salaries of all federal judges by a whopping 31 percent.But another provision in the bill would penalize any judges at retirement age who leave the bench for a high-paying job by reducing the amount of pension they receive.

(Hat tip to How Appealing)

Sentencing Commission makes crack cocaine amendment retroactive

From the Commission's press release:

The United States Sentencing Commission unanimously voted today to give retroactive effect to a recent amendment to the Federal Sentencing Guidelines that reduces penalties for crack cocaine offenses. Retroactivity of the crack cocaine amendment will become effective on March 3, 2008.

Not every crack cocaine offender will be eligible for a lower sentence under the decision. A Federal sentencing judge will make the final determination of whether an offender is eligible for a lower sentence and how much that sentence should be lowered.

That determination will be made only after consideration of many factors, including the Commission’s direction to consider whether lowering the offender’s sentence would pose a danger to public safety. In addition, the overall impact is anticipated to occur incrementally over approximately 30 years, due to the limited nature of the guideline amendment and the fact that many crack cocaine offenders will still be required under Federal law to serve mandatory five- or ten-year sentences because of the amount of crack involved in their offense.

SCOTUS gives district judges more discretion in sentencing

Linda Greenhouse has this report. Here is taste:

Judges still may not impose sentences above the range written into law by Congress or state legislatures. But the decision on Monday gives judges broad discretion to impose sentences higher or lower than the guidelines, which are not statutes and are issued by the United States Sentencing Commission.

SC Supreme Court finds no due process violation where man incarcerated with peitioner served on the jury

In Smith v. State, the SC supreme court upheld a decision of the PCR court denying petitioner post conviction relief. Juror Walling, who had been incarcerated with petitioner and who petitioner allegedly had a fight with, was seated on the jury. Only later after trial did Petitioner realize who Walling was. Petitioner discovered that he and Juror Walling had been incarcerated together at the Colleton County Detention Center in 1997. Petitioner made the connection when his cellmate noticed that Floyd Walling, the cellmate’s cousin, was listed as a juror on Petitioner’s trial transcript. At the PCR hearing, Petitioner testified he did not recognize Walling as the man he knew in prison because Walling had shaved his beard and was not wearing prison attire. Petitioner argued Wallings presence was a per se violation of his constitutional rights. The supreme court disagreed:

Here, it was reasonable for Juror Walling to remain silent when asked during voir dire whether any member of the jury pool was “related by blood or marriage or a close personal friend of [Petitioner].” At the PCR hearing, Juror Walling testified that he and Petitioner were not close friends. Petitioner corroborated Walling’s testimony when he acknowledged that he did not know Walling very well. Juror Walling also testified that he did not have any bias or prejudice against Petitioner, and he and the other members of the jury held the State to its burden of proof before finding Petitioner guilty of the two murder charges.

Based on Juror Walling’s testimony at the hearing, we believe that Walling did not intentionally conceal the existence of his prior relationship with Petitioner. Furthermore, because the disposition of this issue essentially involves a credibility determination as to whether Juror Walling intentionally concealed his prior relationship with Petitioner, we defer to the PCR judge’s findings. The PCR judge specifically found Juror Walling’s testimony to be “highly credible.” Accordingly, we affirm the judge’s holding that Petitioner did not suffer a per se violation of his due process right to a fair and impartial jury.

Book Review of My Grandfather's Son

Jeffrey Rosen has this review of Justice Thomas' new book.

Magna Carta for Sale

It would be pretty cool to own a copy of Magna Carta. Problem is that I'm a little short of the $20-30 million price tag.

SC Ct. of Appeals holds trial court did not error in permitting spectators to wear buttons bearing the victim's photo

In State v. Paige, Paige was convicted of manslaughter and requested a new trial because the trial judge denied his request to order the victim's family and friends to remove buttons with the victim's photograph on them. The Court of appeals applied an “actual or inherent prejudicial effect on the jury” test. After reviewing the record, the court found no prejudice.

The record shows the only mention of the buttons was prior to jury selection, and out of the presence of the jury venire, at which time defense counsel had to inquire whether the buttons did in fact depict a picture of the victim. There is no evidence of the size of the buttons, or the number of spectators who wore the buttons. While the trial court stated he would not require the individuals to remove the buttons, he insured that these spectators would not be called as witnesses, nor would they be seated in the front row. He further instructed that these individuals would not be allowed to make gestures, point to the pictures, or do anything in an attempt to influence the jury. Because no other mention was made of the buttons, this court cannot even determine that these spectators remained in the courtroom for the remainder of the trial or, if they did, whether they continued to wear the buttons. Simply put, there is absolutely no evidence of record that the jurors in this matter were ever exposed to these button photos, and, if they were, whether they could perceive that they depicted the victim. Accordingly, we find no actual or inherent prejudice to Paige based on the record before us.

SCOTUS to hear another Gitmo case

The New York Times has the latest on court's upcoming argument in Boumediene v. Bush, No. 06-1195.