On Ephrata

In Teleguz v. Pearson, the petitioner has raised as one of the factual issues in support of his actual innocence that a witness gave testimony that the petitioner killed a man in Ephrata, Pennsylvania, but in fact there was no such murder. Judge Jones ruled in the opinion that since it was stipulated that there was no such murder, there was no need for discovery on that point.

Apropos of nothing, I have been to Ephrata many times, it is still home of the Hilltop Restaurant, where my high school girlfriend's mom asked me thirty years and a couple of months ago, "you're not going to ask her to the prom, are you?"

Hearsay in the W.D. Va.

Judge Jones of the W.D. Va. has written two recent opinions in which important hearsay evidence was kept out of the case.

In Electro-Mechanical Corp. v. Power Distribution Products, Inc., the Court excluded the minutes of a meeting between the plaintiff and a potential customer, finding that the substance of the document along with the timing of when it was created "indicated a lack of trustworthiness," in the language of the business records exception to the hearsay rule, FRE 803(6).

In U.S. v. Benko, where Mr. Benko is accused of lying about something someone else did, and that someone else made a statement that he never did it, Mr. Benko is out of luck in trying to get that evidence admitted because the declarant has invoked the Fifth Amendment and refused to testify, the Court cannot require the government to give him immunity and make him testify, and the out-of-court statement is not admissible as a statement against interest under FRE 804(3) because the statement lacked "corroborating circumstances that clearly indicate its trustworthiness."

These opinions excluding highly relevant evidence because it was too obviously self-serving to the point of unbelievability are a far cry from what Magistrate Judge Roy Wolfe described to me as the only evidentiary rule of the Western District, "let it in for what it's worth," which I heard from the bench only once in an actual case.

On FOIA and the Attorney General

My old blog friend Waldo Jaquith has been in the news lately in connection with the claim stated on a response he received from the Virginia Attorney General that Virginia's Freedom of Information Act may not apply at all to the Attorney General, citing the 2011 decision by the Virginia Supreme Court in Christian v. State Corporation Commission. In that case, the Supreme Court gave three reasons why, despite the broad definition of "public body" in FOIA, the State Corporation Commission was not included. One of those reasons was the idea that the SCC derives its authority to act from the Virginia Constitution, rather than the legislature, suggesting sort of a separation-of-powers issue. The Court cited Connell v. Kersey, a 2001 case in which the Court held that a Commonwealth's Attorney was not subject to FOIA, explaining that the language of FOIA refers only to "entities to which responsibility to conduct the business of the people is delegated by legislative or executive action. By contrast, a Commonwealth's Attorney derives his or her authority from the Constitution." Along somewhat similar lines, the Court held in Taylor v. Worrell Enterprises, that the Governor could not be required by legislative act to provide certain records.

Interestingly, the General Assembly took action to overrule Connell, by chapter 393 of the 2002 Acts of the Assembly, which amended the definition of "public body" with the addition of this sentence: "For the purposes of the provisions of this chapter applicable to access to public records, constitutional officers shall be considered public bodies and, except as otherwise expressly provided by law, shall have the same obligations to disclose public records as other custodians of public records." In this act, the General Assembly expressly declared its intent to "address the recent Virginia Supreme Court holding in the case styled Connell v. Kersey, which held that attorneys for the Commonwealth are not 'public bodies' as defined in the Freedom of Information Act (§ 2.2-3700 et seq.), by clarifying that the Freedom of Information Act (FOIA) applies to constitutional officers and providing an exemption for attorneys for the Commonwealth." It is not obvious to me how the separation-of-powers rationale from Connell survives this amendment as to whatever is included within the term, "constitutional officers." In cases such as Blair v. Marye, 80 Va. 485 (1885), the Supreme Court has explained that the Attorney General is a "constitutional officer." In addition, the Supreme Court has already held that the Virginia Constitution "unequivocally permits the General Assembly to prescribe the duties of the Attorney General." Wilder v. Attorney Gen. of Virginia, 247 Va. 119, 127, 439 S.E.2d 398, 403 (1994). Unlike the SCC, FOIA includes several exemptions that expressly reference the records of the Attorney General.

In fact, the Attorney General never used the legal argument that his office is not subject to FOIA to avoid responding to FOIA requests, and has now abandoned that argument altogether. The Christian case provided a good-faith basis for raising the point, but it is not obvious that the weight of authority would place the Attorney General in the position of the SCC as opposed to other "constitutional officers."

The memorial for Judge Williams

Thanks to Judge Pam Sargent and all others who made possible the memorial yesterday afternoon for Judge Williams, and to Chief Judge Conrad, Judge Sargent, Judge Birg Sergent, Ronnie Montgomery, Joe Wolfe, David Harless, Randy Ramseyer, Jack White, and Don Williams for their words. I was glad to get a chance to speak about the Judge once more.

What the Supreme Court said about whether a tomato is a vegetable

Last night I caught the tail end of the seed library presentation at the library in Abingdon and one of the seed people said that a tomato is botanically a fruit but the Supreme Court has ruled that it is a vegetable. So, of course, I had to look up the case, which is Nix v. Hedden, 149 U.S. 309 (1893). The issue before the Court in Nix was whether the tax collector for the Port of New York could collect a federal tax on imported "vegetables in their natural state" with respect to imported tomatoes, where the tax did not apply to "fruit." The opinion was written by Justice Gray, who preceded Justice Holmes on the Court and had a similar background as a well-to-do Bostonian who had served on the appeals court in Massachusetts.

Justice Gray wrote that the terms "fruit" and "vegetables" did not have any special meanings, that the Court was bound to take judicial notice of their ordinary meanings, that dictionary definitions were not evidence but aids to the "memory and understanding of the Court" regarding the ordinary meanings, and that while "[b]otanically speaking, tomatoes are the fruit of a vine, just as are cucumbers, squashes, beans, and peas," nevertheless, "in the common language of the people, whether sellers or consumers of provisions, all these are vegetables which are grown in kitchen gardens, and which, whether eaten cooked or raw, are, like potatoes, carrots, parsnips, turnips, beets, cauliflower, cabbage, celery, and lettuce, usually served at dinner in, with, or after the soup, fish, or meats which constitute the principal part of the repast, and not, like fruits generally, as dessert." And so, a tomato is a vegetable, because of how we talk about it when we eat it, regardless of what the scientists say - and the tax collector wins. Surely, my old professor David Yalden-Thomson would have approved of this analysis, as he believed the most profound sentence ever written was that "the meaning of a word its use." The Nix case is sometimes cited for its use of dictionaries.

Referencing the Court's decision, this article makes the case for tomatoes as dessert. If tomato tarts and tomato yogurt took the notion by storm, would a tomato then become a fruit as that term was used in subsequent legislation? I wonder. Pictured below are what I think are some of what are my dad's favorite tomato, the Pink Lady.

On joining up with Bearing Drift

Norm Leahy has included me in the latest crop of new contributors to Bearing Drift, describing me as "[o]ne of the grand old men of the Virginia blogosphere." As long as I have been a blog writer, I have been a blog reader, and the Bearing Drift contributors include several grand old men and women of the Virginia blogosphere whose words I have pondered for many years. Thank you for the invitation.

On the black dog syndrome

I have read from time to time of the Black Dog Syndrome, which is probably a myth. It is interesting to think about why would there be a preference for or against a dog of a particular color, and how could it ever be proven. This topic is also of interest because of the three dogs I have owned since 1991, Ladybug (2010 - present), Chrissy (1991 - 2006), and Jenna (2007-2008).

Comparing law and science

I have been studying this article titled "The Law of Physics & the Physics of Laws," by Judge Kelsey, published in 2012 in the Regent University Law Review, in which he endeavors to "rake through the ashes of science (as well as some of its hot coals)" in the pursuit of "symmetries that reinforce our understanding of the law."

In the first section, titled "An Underlying Order," he points to the historical view of common law scholars that the law like sciences derived from universal truths, that were capable of being discovered incrementally through the process of deciding individual cases. It brings to mind the concept from Revolutionary times, that all men "are endowed by their Creator with certain unalienable Rights," that were natural laws that preceded the institutions of the legislatures and the courts. It also makes me think of the dismissal by Justice Holmes and other "legal realists" of the validity of the quest for natural law.

The second section makes interesting comparisons between the physical laws of inertia and the doctrine of stare decisis, and also between Newton's law of motion and the adversary system. He suggests that judicial precedents have "mass," that consist of "the strength of judicial consensus on the truth of the precedent and the longevity of its journey over time," that must be overcome for the law to change, and that absent sufficient force for change to overcome this mass, the precedents will "simply move from age to age along their original trajectories." He also suggests that the adversary system in its reliance on the concept that "truth can best be found in the competing contest between opposing forces" corresponds with the Newtonian concept that "all forces in come in pairs."

The third section compares the difficulty of categorizing and determining the truth, in law and in science. He compares the difficulty of scientists in characterizing the nature of light with the challenge for lawyers of drawing the line between law and equity - a task which continues into the modern age, for example, where there is an issue of the right to a jury trial. He concludes with the problem of "doubt," in science and the law, which seems to me the most interesting of these several points - how do we overcome the problem of knowing what is true, when the quest for truth itself may obscure the truth? The priority of the opposing parties is to win the case, with the result that " lawyers and jurists alike have known for centuries that irrefutable truth is almost always, if not invariably, garbled by the exercise of discovering it."

This article seems like the introduction to a seminar on the philosophy or history of law, the sort of class that I signed up for whenever I could, back in the day, when I had professors like John Simmons and Charles McCurdy.

On launching out into the deepest waters

A few days ago, Mitt Romney gave the commencement address at Southern Virginia University, as shown here, and advised the graduates to go out into the deep waters, like Jesus instructed Peter and the other fishermen. In particular, he told them to get married and have children. I can't say that I was trying to keep up with Romney, but I jumped into the deep end in 2011 and married Jill and started living with four step-children, three of them girls. My biggest regret to date is that the oldest - the prom girl in red with her old step-dad - will be gone from our house all too soon, but then again Romney in the same speech declared that is the "new American Dream," getting the children out of the house you own. It has been a few years since I last posed with a high school senior.