Scott Greenfield at Simple Justice thinks not: The Supreme Slackers. Jeff Gamso at Mimesis Law expounds: Half the Work, Twice the Fun.
The Supreme Court debuts its October 2015 term on Monday.
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September 2015
September 30, 2015
How Can You Authenticate a Document If You're Not Saying That What's In It is True?
Sometimes appellate courts go so far to affirm a jury trial conviction in a criminal case that the tether of logic and reason becomes alarmingly untethered. Or maybe there are just so few jury trials and evidence law issues so rare that the appellate courts just can't handle them coherently. A recent Sixth Circuit case, United States v. Ricky Brown, is an example. Brown includes a disturbing Fourth Amendment ruling, but the one this post will concentrate on is the trial court's ruling admitting a "drug ledger" in evidence.
Brown is a garden variety federal drug case; he was charged with dealing in marijuana and also weapons charges. The opinion does not indicate what the "drug ledger" showed; presumably, it reflected information regarding various marijuana transactions such as customers, dates, amounts and prices.
Brown's first argument was that the "drug ledger" was inadmissible hearsay. Not so answered the Sixth Circuit, "because the government did not offer the document for the truth of the matter asserted[.]" How can that be? The court also stated that "the government offered the 'drug ledger' as circumstantial evidence of a 'tool of the trade' to prove that Brown was involved in illegal drug trafficking."
How can the government say, on one hand, that the "drug ledger" shows Brown was involved in illegal drug trafficking, but say, on the other hand, that it is not claiming that any of the entries in the "drug ledger" reflect any actual drug deals that occurred ever? It can't be both.
Brown's second argument was authentication. The court observed that an "agent with extensive experience in examining drug ledgers described for the jury the characteristics of the document that indicated it was a "drug ledger," and another agent linked Brown to the document through testimony that several contacts listed in one of Brown's cell phones matched names listed on the 'drug ledger.'" So, in other words, an agent explained to the jury how and why the entries/information in the "drug ledger" regarded actual drug transactions. That testimony depends on a basic assumption that the entries do reflect actual drug transactions, i.e., it relies on the truth of the matter asserted.
Circuit Judge Jane Stranch authored the majority opinion and was joined by District Judge Timothy Black of the Southern District of Ohio. Circuit Judge Eric Clay dissented on the Fourth Amendment ruling.
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September 29, 2015
Give It a Rest: Right Winger Criticism of the Very Conservative Chief Justice Roberts
Amazingly to me, the right wing of the Republican Party is criticizing Chief Justice John Roberts of the Supreme Court as not being quite reactionary enough, after all he has only joined in ruling that corporations are the equivalent of people with free speech rights, corporations have a religious conscience, and gutting the Voting Rights Act among other rulings sure to cheer the right wing. So give it a rest.
Further reading in Adam Liptak's Sidebar for the New York Times: Chief Justice John Roberts Amasses a Conservative Record, and Wrath from the Right.
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September 25, 2015
Because They Just Can't Help Themselves; Why Would the Defense Argue that a Decision Benefiting it was Incorrect?
The Kentucky Supreme Court's recent decision in Banker v. University of Louisville Athletic Association was notable and helpful in at least two respects: emphasizing the role of the jury not an appellate court to find facts and dispelling the mistaken notion that expert medical or scientific evidence was necessary to sustain a claim for emotional distress damages in an employment discrimination or retaliation case, a point we discussed on the Kentucky Employment Law Blog, Does Kentucky Require Expert Medical or Scientific Testimony to Support A Claim for Emotional Distress Damages in an Employment Discrimination or Retaliation Case? and on the website, Proving Emotional Distress Damages In Employment Discrimination & Retaliation Cases - Is Expert Medical or Scientific Proof Necessary?
Banker also called upon the Court to address an award of attorney's fees to the plaintiff's lawyer, Bryan Cassis, who is to be applauded for the perseverance and skill displayed in this case. Although Cassis submitted a attorney's fee petition documenting 678.75 hours worked on the case, the lawyers for the University of Louisville Athletic Association, Craig Dilger and Jeffrey Calabrese, argued that this amount of time was excessive, a point that seems surprising coming from lawyers who spent nearly twice as much time ("approximately 1300 hours") on the case as did Cassis and lost it. But the defense did not stop there.
Cassis had argued to the trial court that the attorney's fees award should be increased because the case was a contingent fee case. The trial court rejected the argument. Nevertheless, having won the issue and apparently not able to help itself, the defense argued on appeal that the trial court had erred. This confused the Supreme Court who remarked:
ULAA's third argument is somewhat confusing. The trial court did, as ULAA notes, look to what a reasonable contingent fee would be in this situation. However, the court did not do so to determine the lodestar amount or to deny ULAA's request for a downward adjustment. It did so as justification for denying Cassis's request for an upward amendment in the lodestar amount, which benefitted ULAA. We are not certain why ULAA is arguing that a decision from which it benefitted was incorrect; however, regardless of ULAA's reasons for making this argument, it is not persuasive.
Indeed, it is confusing why a party would argue against a ruling that benefitted it. But sometimes the defense just can't help themselves.
Robert L. Abell
www.RobertAbellLaw.com
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September 17, 2015
Religious Principles and the Public's Business
I have found through the years that Linda Greenhouse is an astute legal commentator; she was formerly the Supreme Court reporter for the New York Times and now regularly contributes to its Opinion blog on the paper's website. I have found over a couple of decades reading that she accurately reported Supreme Court's rulings, an accuracy that, in turn, gives me more confidence in the accuracy of other stories the paper reports, although it does make mistakes to be sure. Anyway, Ms. Greenhouse has offered an insightful analysis of the situation and dynamic created by the refusal of Rowan County Clerk Kim Davis to abide and follow the federal court's order to follow the law of the land: Drawing the Line Between Civil and Religious Rights.
Ms. Greenhouse points to at least one of the problems that stances as taken by Clerk Davis would create to the functioning of our government. She mentions a case decided in 1998 by the Seventh Circuit Court of Appeals, Rodriguez v City of Chicago, 156 F3d 771 (7th Cir. 1998), where a police officer sought unsuccessfully to be relieved of duty requiring him to guard an abortion clinic because he had a religious objection to abortion. The concurring opinion of Judge Richard A. Posner, one of the true titans of American law, explains the dilemma created if public officials and employees were to be granted a religious veto to performance of their public duties:
Mr. Rodriguez, a Chicago police officer, claims, I have no reason to doubt sincerely, that it violates his religious principles to guard abortion clinics. He is entitled to his view. He is not entitled to demand that his police duties be altered to conform to his view any more than a volunteer member of the armed forces is entitled to demand that he be excused from performing military duties that conflict with his religious faith (I specify "volunteer" because the claim of a conscripted soldier is stronger, see Welsh v. United States, 398 U.S. 333, 344, 90 S.Ct. 1792, 26 L.Ed.2d 308 (1970); United States v. Seeger,380 U.S. 163, 185-87, 85 S.Ct. 850, 13 L.Ed.2d 733 (1965)), or than a firefighter is entitled to demand that he be entitled to refuse to fight fires in the places of worship of religious sects that he regards as Satanic. The objection to recusal in all of these cases is not the inconvenience to the police department, the armed forces, or the fire department, as the case may be, though that might be considerable in some instances. The objection is to the loss of public confidence in governmental protective services if the public knows that its protectors are at liberty to pick and choose whom to protect.
The public knows that its protectors have a private agenda; everyone does. But it would like to think that they leave that agenda at home when they are on duty--that Jewish policemen protect neo-Nazi demonstrators, that Roman Catholic policemen protect abortion clinics, that Black Muslim policemen protect Christians and Jews, that fundamentalist Christian policemen protect noisy atheists and white-hating Rastafarians, that Mormon policemen protect Scientologists, and that Greek-Orthodox policemen of Serbian ethnicity protect Roman Catholic Croats. We judges certainly want to think that U.S. Marshals protect us from assaults and threats without regard to whether, for example, we vote for or against the pro-life position in abortion cases.
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September 13, 2015
Michigan Legislators Gamrat & Courser; When the Weird Not Only Turn Pro but Also Get Elected
Michigan legislators Todd Courser and Cindy Gamrat, who were newly elected last November, managed to shame themselves, their families, the state, get expelled from the legislature and now face criminal probes. They are really strange. Fittingly strange is the following video done by the Washington Post:
So, they changed their lives, got changed greatly by that change and it all added up to a shameful historical footnote.
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September 10, 2015
Can You be Charged for Committing a Crime on Yourself?
You would think not but the answer, it appears, is yes, at least in Cumberland County, North Carolina. Law sometimes stands on its head, read NC Teen Charged As Adult For Taking & Having Naked Pictures of a Teen -- Himself.
Josie Duffy at Daily Kos brought this story to my attention.
I looked for quotes about rules and found this one by George Bernard Shaw: The golden rule is that there are no golden rules. That's not quite it; there is an element of unthinking stupid here and for that it appears that we should thank the sheriff's office in Cumberland County.
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September 06, 2015
Will the Courts Close Down in Kansas? Gov. Sam Brownback and the Chaos He Hath Wrought
Kansans elected Sam Brownback their Governor in 2010 and re-elected him last year, the first one being understandable since they may not have known how inept and foolish he was but the second one not since they do. For a sample: Kansas' Failed Experiment. In any event, the dim Governor and his apparently dimmer allies in the state legislature have succeeded in boxing themselves into a corner such that they have eliminated the judicial branch of their government. Say Again: they have eliminated the judicial branch of their government.
Here's how it happened. The Kansas Supreme Court ruled in 2014 that funding for the state's education system was constitutionally deficient. This is similar to the ruling of the Kentucky Supreme Court some 25 years ago, which led to increased funding and improvements in Kentucky's schools. Anyway, the Kansas legislature, which is controlled Republican super-majorities in both houses, in a fit of pique passed a law that transferred the appointment power of chief local judges away from the Supreme Court. This was only to figuratively poke the Supreme Court in the eye.
Last year, the Kansas legislature in its wisdom passed a law that defunded the court system -- effectively abolishing it -- if the 2014 law was struck down as unconstitutional legislative overreach. Last week the law was struck down on separation of powers grounds; Solomon v. State of Kansas. That ruling then had the effect of automatically triggering the defunding of the Kansas state court system. As a result, the Republican state Attorney General Derek Schmidt was forced to ask the court to stay the ruling so that the court system could continue to function.
There is excellent coverage of these developments in at theatlantic.com: The Court Case That Could Shut Down Kansas' Courts.
Robert L. Abell
www.RobertAbellLaw.com
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September 04, 2015
Jailed for Being Poor; Justice in the Courtroom of Judge Richard A. Diment of Bowdon Municipal Court
Our justice system at its lowest levels is sometimes inelegant to say the least. But going to jail because one is poor is rarely the result. But in the courtroom of Judge Richard A. Diment it is the reality as this video shows:
The New York Times has the fuller story: A Surreptitious Courtroom Video Prompts Changes in Georgia Town.
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