Saturday, August 23, 2003

Right to private goofiness vs. universal appeal of chunky kid with light saber

Mitch Mobley forwarded to me this story about a chunky kid in Quebec who videotaped himself wielding (with ever increasing energy and enthusiasm) a golf-ball retriever as if it were a light saber in one of the Star Wars movies, and after someone else found the video and put it on the Internet, and it became popular (with websites such as this one), the kid is now suing over his lost privacy.

A fan of the video had this comment:

"Contrary to popular belief, I think it is not the Jedi kid's awkwardness that keeps him in people's hearts but his undeniable enthusiasm for what he is doing," Murphy says. "While I feel bad for him because he hates his new found popularity, I revisit the site anytime I am feeling down. It just cracks me up. I love this kid!"

Said another:

"I definitely want to respect the kid's privacy. But...," he says, starting to laugh, "It's so funny. He's the 'Star Wars Kid' in all of us."

Friday, August 22, 2003

Cruel and unusual

WV's Rory Perry explains an afternoon in the life of an appellate court clerk.

On whether a town's Architectural Review Board can regulate building materials

In Abingdon, we have an architectural review board for development in the historic area. It has become an increasing controversial government agency, particularly with regard to the development of the Barter green property. The ARB proceedings seem to have been something of a success in terms of good government, since they had the courage to say no at least initially to the Barter Foundation, causing the Foundation to compromise on the initial excesses of its proposals. (My wife laughs when I start shouting and cursing at the newspaper over the grandiose pronouncements of the Barter's director Richard Rose, which often put me into a rage when I read them, and then she laughs at me even more when I smile and say hi to Mr. Rose when we see him on our way into the theater -- but I digress.)

This article talks about the ARB in the Town of Warrenton (which has a very nice Old Town area), and the limits of its authority - particularly, whether the ARB can regulate what building materials are used.

What's the point of broadband for the coalfields

On a past theme of my own legal writings, this article in the Coalfield Progresss addresses why the investment of Tobacco Commission money for broadband connections in the Southwest Virginia coalfields is a good idea.

On the harvesting of marijuana in Southwest Virginia has this commentary on the harvest season for marijuana in Southwest Virginia.
Sorry not much blogging this week.

Yesterday's strangest development was my first-ever chance to demonstrate to a client my ability to change a tire while wearing a business suit, after we suffered a flat in my car driving back from depositions in Knoxville. (The temperature alongside the interstate was in the 90s, made more comfortable by the intermittent blasts of air caused by the passing trucks.) After depositions, driving, and tire changing, I went home and took a nap.

Wednesday, August 20, 2003

On the Fourth Circuit's newspaper antitrust case

On Monday, in Berlyn Inc. v. The Gazette Newspapers, Inc., the Fourth Circuit in an unpublished opinion by Judge Gregory joined by Chief Judge Wilkins and Judge Shedd affirmed the dismissal of antitrust claims brought by local newspapers in Maryland against a subsidiary of the Washington Post.

The Gazette reported on its own victory here.

HOV lanes and hybrid cars

As reported here, the Commonwealth is considering revoking an exemption for gas-electric hybrid cars from the occupancy requirements of HOV lanes.

There are no HOV lanes in Southwest Virginia. The first time I ever saw HOV lanes, around Springfield in 1987 or so, I passed everybody for a while, then decided something had to be wrong. It's a wonder no one shot me, as a blatant and undeserving HOV-lane offender.

ethicalEsq? picks up on Wise County story

David at ethicalEsq? has this post on the story about Stephanie Pease in the Coalfield Progress, pondering whether her representation was over-zealous.

Photo on county guide depicts area not in county

As reported here in the Roanoke Times, the photograph gracing the cover of the sourcebook for Montgomery County is property that is not part of the County, at least not since 1892.

Tuesday, August 19, 2003

Michael Vick on Tech in the ACC

From a PCMag interview with Michael Vick:

DSE: What do you think about Virginia Tech's move to the ACC?
MV: I think it's a good move, I think it's a conference where we can dominate.

Waiver of attorney-client privilege found when client tells FBI he acted on advice of counsel

In U.S. v. Under Seal, the Fourth Circuit in an opinion by Chief Judge Wilkins joined by Judges Williams and Traxler held that a terrorism suspect waived attorney-client privilege when he told the FBI that the reason for one of his answers on a questionnaire about his criminal history was that he was acting on advice of counsel, and therefore the lawyer could be made to answer limited questions to the grand jury investigating whether the client lied to the FBI.

Judge Jones upholds million dollar verdict in Roanoke auto accident case

In Shelton v. Barreto, Judge Jones refused to throw out the jury's verdict or order a remittitur in a case where the jury in the Roanoke division of the W.D. Va. awarded more than $1 million. The claimed special damages in the case were $143,433.22.

Matthew Broughton among others represented the plaintiff.

Years ago, I heard someone say as a rule of thumb that you were not a good trial lawyer until you had lost a million dollar case, and I repeated to this story to a lawyer who had suffered such a verdict, then told it again to a lawyer I knew in Kentucky, whose reply was "you tell your friend in Virginia by that measure I'm twice as good a lawyer as he is."

Congressman Goodlatte and immigrant labor

This article talks about what Congressman Bob Goodlatte is doing on issues affecting the immigrant workforce in agriculture.

Amnesty International and the war on terrorism

This article by Amnesty International includes that group's take on, among other things, the Fourth Circuit's decision in the Hamdi case.

Interviewing the underaged, mentally-disabled victim at the accused's house

The Coalfield Progress has this story on obstruction of justice charges brought against two Wise County women for organizing a meeting between an alleged rape victim and the counsel for the defendant, who was married to one of the two women.

Today's tax tales

The Washington Post has this negative report and the Roanoke Times has this somewhat more optimistic report on the legislative tax reform efforts yesterday.

Fifth Circuit and the death penalty

The NY Times has this article (registration required) criticizing the Fifth Circuit's handling of death penalty cases from Texas.

The article says, in part:

"Opponents of the death penalty say the imminent execution of Mr. Robertson is a demonstration that the federal appeals court that heard his case, in New Orleans, has not followed the law set out in Supreme Court decisions. They add that the court, which has the heaviest capital docket of all of the federal courts of appeals, is prone to deciding cases in short opinions without hearing oral arguments."

Roanoke jury awards $1.3 M in med mal case

The Roanoke Times has this report on the jury's verdict in a case against an obstetrician/gynecologist for an unsuccessful laparascopic procedure that nearly killed the patient.

Monday, August 18, 2003

Finding the VCOG newsletter

I just found the July newsletter for the Virginia Coalition for Open Government, which has been hidden on my desk since, well, July, I suppose. The newsletter is always interesting and never dull, written almost in the breathless style of the horse racing commentator played by William H. Macy in Seabiscuit.

Anti-gridlock conservatives

According to this commentary in the Virginian-Pilot, some Republican businessmen in Virginia are more concerned about infrastructure than they are with purity on the no new tax issue.

Second appeal decided on subject-matter jurisdiction

In M.E. v. Buncombe County Bd. of Educ., the Fourth Circuit in a per curiam opinion for the panel of Judges Widener, Williams, and Motz vacated the district court's decision following a prior appeal for lack of subject-matter jurisdiction, which makes me wonder where was that issue before the first appeal, but I guess subject-matter jurisdiction can never be waived or manufactured by the conduct of the parties.

Why not do federal criminal practice

Ken at Crim Law makes federal criminal practice sound pretty horrible, particularly in his description of the "federal defense game" in this post.

I'm ashamed to say that I have avoided federal criminal practice thus far in my career, for no particular reason other than that the federal judges apparently can't or won't appoint me to defend indigents without my consent (as sometimes happens in state court) and it would take too much work for me to avoid looking foolish in criminal cases (as has happened in state court, most recently a pro bono case over on the Tennessee side).

The closest that I ever came to getting involved in a federal criminal case was one day when I was in the hallway at the federal court in Abingdon as Judge Wilson was walking the opposite direction talking to someone about how he needed to find more lawyers for some case that very afternoon, and as I passed him, he said something like, "Steve, how would you like to be on the court-appointed list for this court? I can appoint you to a case right now." I don't remember whether I made some reply or whether I just jumped out the nearest window.

Circuit judge blasted for routinely reducing DUI convictions on appeal

A judge in Portsmouth is being criticized for his routine reduction of DUI sentences on cases appealed from General District Court, according to this report and this report.

More on sodomy prosecutions in Virginia

Some "experts" seem to be dumbfounded that anyone can still be prosecuted for sodomy in Virginia after the Supreme Court's decision in the Lawrence case, according to this AP story about arrests made at a Harrisonburg book store.

I don't expect that the General Assembly will act to change the language of the Virginia Code unless and until someone with actual standing to have it declared unconstitutional convinces some court to do so, and then the legislature will act to limit the court's decision as best they can.

I recall that the Virginia Supreme Court's ideas about standing in the Richmond public housing trespass case were shot down 9-0 by the U.S. Supreme Court in the Hicks case last year. The overbreadth of the statute did not apply to Hicks because he was not engaging in any First Amendment activity. It would seem wrong to throw out a criminal statute because of a possible constitutional defect that does not apply to the defendant raising the issue.

New fax rules rile businesses

This article in the Lynchburg paper discusses the new FCC rules for unsolicited business faxes.

I don't know what the deal is with these new rules, right now I keep getting faxes asking for permission to send me faxes.

Why go to law school

This Washington Times article has some answers on why new students are going to law school, many with motives other than money (or so they say).

Federal death penalty sought in Charlottesville drug murder case

This Daily Progress story describes the decision by federal prosecutors to seek the death penalty in the case of three men "accused of killing a Charlottesville man over drugs last summer."

Whenever I read about a federal death penalty case, the first question that enters my mind is, why is this a federal case?

Also, the article says the prosecutor is Tim Heaphy. If that's the Tim Heaphy I knew a little bit at U.Va. in the 1980s, I wonder whether he is personally in favor of the death penalty. I would have guessed that he is more a rehabilitation and reconciliation man, but then again, that was a long time ago.

On the office of solicitor general for a state government's Tony Mauro has this article on the rise of the office of solicitor general for states as one way for lawyers to get before the U.S. Supreme Court - but the article does not mention Virginia's William Hurd.

I saw Tony Mauro talking on C-SPAN to a gathering of former U.S. Solicitor Generals replayed on C-SPAN over the weekend, from this year's ABA convention - the panelists were Charles Fried, Drew Day, Ted Olsen, Ken Starr, and Walter Dellinger. (Forgive me, if their names are misspelled.) The funniest part, though, was at the end, when the ABA litigation section head thanked everyone and explained that it was a historic gathering, to have so many of the holders of this office together at once, and how the other living former solicitors general were unable to attend, Robert Bork and Archibald Cox, and described the letter from Mr. Cox, who supposedly wrote something like, "I was excited to appear on this panel, but then I realized, I'm 90 years old, and so I have to stay home."

Why not to have elected judges

The recent articles in the NY Times about state court judges, including this one (registration required), make me think that Virginia has the right away in not picking judges by popular election. The article says, among other things, that "[i]n New York, where State [trial court] judges are elected rather than appointed, the dominant political party in a county can virtually dictate who goes on the bench, and further, who fills hundreds of courthouse jobs. Not surprisingly, those in the courthouses and those hoping to become judges make sure to donate to the party, interviews and campaign finance records show."

Of course, it is no less possible that in Virginia, political activism and campaign contributions to decisionmakers can and sometimes does make a difference in who gets the judgeship, but the outcomes don't seem to based on party standing alone.

Wireless interference with emergency radios?

This story in the Washington Post about problems with emergency frequencies strikes me as suspicious, as it is either about empowering the FCC or giving private industry more spectrum or spending more local government money, or all three. The odd part is that it says that Montgomery County, MD, "took care to ensure there wouldn't be any interference problems" with its new system, and has no problems, so why isn't the question what's wrong with the other government systems?

California chaos a respite from dull Virginia politics?

This commentary in the Daily Press suggests that Virginians bore with the politics here can get their entertainment watching goings-on in California.

As I understand it, the big deal with Gray Davis was that he got re-elected then told everyone there was no money. In Virginia, since the governor cannot run for re-election, it is possible for the incumbent governor to minimize the bad facts about the budget to help elect a successor from his own party, who then can say he's not to blame for how bad things are. (Or so I've been told is what happened in 1989.)

New magistrate judge in Knoxville

Within this page is a short account on the swearing-in of Knoxville attorney Bruce Guyton, a Knoxville native and U.Va. law graduate, as the new magistrate judge for the E.D. Tenn., following the promotion of Judge Thomas Phillips to the district court bench.

Local school boards try to keep up with changing gun laws

The General Assembly tinkers with gun laws every year, leaving school boards to figure out how to bring their policies into compliance with the new laws affecting guns on school property that took effect on July 1, as reported here.

AG Kilgore "returns to the fields"

It says here that Virginia Attorney General and gubernatorial candidate Jerry Kilgore was "was raised on a tobacco and cattle farm in Southwest Virginia" and "returned to the fields" last week to help other Republicans in rural Virginia.

On the swearing-in of new Fourth Circuit Judge Allyson Duncan

This report describes the swearing-in last Friday of Judge Allyson Duncan of the U.S. Court of Appeals for the Fourth Circuit. The oath was administered by her husband, William Webb, a U.S. magistrate judge.

More on prison doctor who lost job over stun gun case

The Roanoke Times has this additional report on the prison doctor who lost his job after blaming guards for the stun gun death of an inmate at Wallens Ridge in Wise County.