Friday, September 05, 2003

Sounds almost as bad as the OJ defense

Via Instapundit, this post from Talk Left discusses the latest application of the "unidentified second ejaculator" now used by prosecutors when the DNA at the scene does not match that of the defendant.

I guess this would be the theory if it was ever determined by some means that the DNA from the Roger Coleman case did not match the DNA of Roger Coleman - he was charged with murder, not leaving DNA samples.

Senate committee tacks on $83 million for new federal courthouse in Richmond

Via Lawyers Weekly, the Richmond Times-Dispatch has this story on the progress of funding for a new federal courthouse in downtown Richmond.

Summary judgment denied in ADA claim of one-armed man

In Riffey v. K-VA-T Food Stores, Inc., Judge Jones denied the employer's motion for summary judgment in a case brought under the Americans with Disabilities Act by a man who was born without one arm.

Of course, if the plaintiff had only the one arm when he was hired, and the people who fired him were the same as those who hired him, then there might be a pretty strong inference that he was fired for something else. See Proud v. Stone, 945 F.2d 796, 797 (4th Cir. 1991) (“a strong inference exists that discrimination was not a determining factor for the adverse action taken by the employer” where the same individuals who gave a job to the plaintiff removed the plaintiff a short time later); see also Taylor v. Virginia Union University, 193 F.3d 219, 231 (4th Cir. 1999) (citing Proud); Mitchell v. Data General Corp., 12 F.3d 1310, 1318 (4th Cir. 1993) (same). Compare Schnabel v. Abramson, 232 F.3d 83, 91 (2d Cir. 2000) (“where the person who made the decision to fire was the same person who made the decision to hire, it is difficult to impute to her an invidious motivation that would be inconsistent with the decision to hire”); Grossmann v. Dillard Department Stores, Inc., 109 F.3d 457, 459 (8th Cir. 1997) (“To uphold the jury’s verdict, we would have to believe that Franzke, himself fifty-eight, was free of age bias when he hired Grossmann, suddenly turned against older workers four years later, then just as abruptly changed his mind again”); Brown v. CSC Logic, Inc., 82 F.3d 651, 658 (5th Cir. 1996) (citing Proud as best explanation of “same actor” inference); E.E.O.C. v. Our Lady of Resurrection Med. Ctr., 77 F.3d 145, 152 (7th Cir. 1996) (“The same hirer/firer inference has strong presumptive value”); Buhrmaster v. Overnite Transp. Co., 61 F.3d 461, 463 (6th Cir. 1995) (“It is simply incredible that the company officials who hired an employee at age fifty-one had suddenly developed an aversion to older people two years later”).

ASL killer held to be competent to stand trial

The AP has this report that General District Court Judge Fred Combs in Buchanan County ruled earlier today that accused murderer Peter Odighizuwa is competent to stand trial for the killing of Dean Anthony Sutin, Professor Tom Blackwell, and a student of the Appalachian School of Law.

Lame duck clerk of court appeals order on scheduling criminal matters

According to this story in the Daily Press, the circuit court judge in Hampton got together and entered an order requiring the clerk to accelerate scheduling of certain criminal matters, in accordance with their interpretation of Virginia law, and somehow the clerk (who lost the nomination in his effort to get reelected) is appealing that order to the Virginia Supreme Court.

I was just trying to explain to a new employee in our office earlier this week that in state court in Virginia, the judges and the clerks and the sheriffs answer to different people and are not always on the same page - I guess this is an extreme example.

Another Civil War site in Virginia threatened

This article from National Geographic says that development is about to take over (or under) some of the site of the Civil War battle at Chancellorsville.

I don't know much about the Civil War, but even I know that Chancellorsville is where Stonewall Jackson was shot, an event which your revisionists and dreamers might say had some effect on the shape of the outcome.

State Republicans pick leader tomorrow

According to this report in the Winchester paper and this AP report, Virginia's Republicans will pick their new leader on Saturday.

A whole orchard of Apples becomes a Tech supercomputer

From Gadgetopia, here is a link to the details of the Virginia Tech supercomputer project, which will use so many Macs the whole project just might turn my good friend Jack White into a Hokie.

Of George Wilder and other Virginia oddities

This wild article says that if only Virginia would eliminate the power vacuum caused by the hamstrung governor and part-time legislature, by means of abolishing the term limits for the governor, a powerful conservative would come long and cut the size of government in half, reduce taxes, and break up the police state.

These conclusions strike me as odd. The only government agency with the public image of running wild since the 1990s is VDOT - the rest have faced recurring budget cuts, and some of the old-timers in education and elections and other fiefdoms have been run off by the Republicans.

I can't disagree with this article from the Cavalier Daily, which concludes that this fall's elections in Virginia can't mean much, because not many people are running for legislative positions.

Thursday, September 04, 2003

Forum shopping for homeland security - Justice Department stashes enemy combatants in Fourth Circuit

According to this report in the Nation, one of Attorney General Ashcroft's strategems in the war on terror was to move three "enemy combatants" so that any litigation about them in civilian courts will be subject to appeal to the Fourth Circuit.

More on the powers of the disabled

Part of this feature from the NY Times (registration required) on Laura Hillenbrand, the author of Seabiscuit, focuses on how she manages to work despite a disabling illness.

On whether trademark is "advertising idea" or "style of doing business" under in coverage dispute

In State Auto Property & Casualty Ins. Co. v. Travelers Indemnity Co. of America, the Fourth Circuit in an opinion by Judge King, joined by Judges Wilkinson and Niemeyer, reversed the trial court's conclusion on the coverage question of whether the underlying claims related to misappropriation of the "NISSAN" trademark could be considered claims based on an advertising idea or style of doing business as defined in the liability policy. The appeals court concluded there was a duty to defend.

Trial court reversed for making defendant choose between testifying and keeping his lawyer

In U.S. v. Midgett, the Fourth Circuit in an opinion by Judge Traxler joined by Judges King and Gregory reversed the appellant's conviction because the trial court had forced the defendant "to choose between his right to a lawyer and his right to testify on his own behalf." After the government put on its evidence, there was some dispute between the defendant and his lawyer, who sought to withdraw, but "[r]ather than permitting his lawyer to withdraw, the court offered Midgett the choice of either acceding to defense counsel’s refusal to put him on the stand or representing himself without further assistance of counsel." The Court noted: "Defense counsel’s mere belief, albeit a strong one supported by other evidence, was not a sufficient basis to refuse Midgett’s need for assistance in presenting his own testimony."

The Court reasoned that the trial court could not know that the defendant was lying just because his own testimony would not be corroborated: "The defendant was told to waive either his right to counsel or his right to testify because neither his counsel nor the court was satisfied that his testimony would be truthful. In so doing, the court leveled an ultimatum upon Midgett which, of necessity, deprived him of his constitutional right to testify on his own behalf."

Third Circuit says lawyer not liable for client's fraudulent conveyance

Ah, I feel better, knowing that at least in some places, a lawyer cannot be liable for his client's fraudulent conveyances, as stated in this story from

Wednesday, September 03, 2003

$4 million verdict in Tidewater sexual harassment case

Via Lawyers Weekly, the Virginian-Pilot has this article on the jury verdict of $4 million in a sexual harassment case against a hospital in Norfolk division of the E.D. Va. The statutory cap will reduce the award to the $300,000 maximum.

Unions scrap over 100 jobs at Dickenson County hospital

As reported here in the Coalfield Progress, here in the Bristol paper, and here in the Kingsport paper, a jurisdictional dispute over who will represent the workforce at the new Dickenson County hospital between the Mine Workers, who represented the old employees, and the Steelworkers, who represent the employees of the contractor hired to run the new hospital, threatens the ability of the hospital to reopen in time to keep its license.

Wherever three or more of you are gathered . . .

Oops, three members of the school board of one Virginia got together to inspect school grounds, and that might be a violation of Virginia's Freedom of Information Act, as reported here.

More on the suit regarding alien admissions

The AP reports here that the Latino civil rights group proceeded to file its suit challenging the policies that limit the admission of illegal aliens to Virginia's public colleges and universities.

The remote location where V-P will hide out on Monday night - Roanoke

The Roanoke Times reports here that Vice-President Cheney will be raising money at the rate of $1,000 per head at somebody's house in Roanoke on Monday night.

On swearing

The Curmudgeonly Clerk has this interesting post on the law of swearing to tell the truth. Tim Sandefur adds to it with this interesting post about the "No Religious Test" clause of the Constitution.

I had a witness in federal court in a civil case who told me, before he told me anything else, that he would not swear an oath, as it was against his religion. No problem, I said, what the clerk asks is if you will "swear or affirm," etc. "Affirm" he said, thinking it over, "I can do that." When the time came, he replied to the clerk, "Yes, I will tell the truth." I waited, but no one questioned this response. There's nothing like having a witness come through on the hard questions.

What's this from West Virginia?

Brian Peterson has this post about a report describing as lawyer survey about the West Virginia Supreme Court as showing that the "majority of respondents [to the survey] believe that the [W.Va. Supreme] Court openly exhibits bias, is result-oriented, is not in the mainstream in its decisions and does not enforce procedural rules fairly."

Still appealing

Back from vacation, Howard Bashman has this excellent "20 questions" with Judge William Curtis Bryson of the Federal Circuit.

Tuesday, September 02, 2003

More on citing unpublished opinions

From Findlaw, here is a commentary by Michael Dorf on the proposed rule that would somewhat expand the use of unpublished appellate opinion by the federal courts.

I agree mostly with what he is saying, as I have stated here and here.

Hispanic groups plan to sue over Virginia college admission policies

The Virginia Tech paper has this report on the plans of "a Latino civil rights group" to file suit in federal court in the E.D. Va. challenging Virginia's policies regarding the college admissions of undocumented aliens.

Employee hazing still not action under color of state law

In Givens v. O'Quinn, Judge Jones restated his view that the plaintiff's improved allegations of co-working hazing among state corrections officers still did not state a claim under section 1983 because alleged conduct did not show that the defendants were acting under color of state law.

Ad man prosecuted for embezzling from lawyer-client

The Coalfield Progress reports here on a Wise County man whose advertising firm took over $20,000 from a local lawyer for advertising and $19,000 of the money is unaccounted for.

250' tower gets by planning commission in Wise County

The Coalfield Progress reports here that a 250-foot cell tower for the Coeburn area has won the approval of the Wise County planning commission.

Labor Day in Buena Vista with 2005 preview

Guess what the 2005 gubernatorial candidates Jerry Kilgore and Tim Kaine were doing on Labor Day? The Roanoke Times says here they were just saying hello at the annual parade in Buena Vista.

The article notes that Attorney General Kilgore said again at the event that he disagrees with the ruling that VMI cadets cannot say grace over their dinner, and that's why he is appealing the dinner prayer case to the United States Supreme Court.

Tax amnesty in Virginia

The Roanoke Times reports here that Virginia is hoping to making money from people and businesses who have become delinquent in their payment of taxes but are now being given the chance to pay what's owed without penalty, at least for the next 63 days.

Monday, September 01, 2003

Still reading the John Tucker book

I never knew before now that John Tucker represented the plaintiffs in the case of Elrod v. Burns, which became the famous leading case in which the Supreme Court declared that sometimes patronage dismissals of public employees is a violation of the employees' rights under the First Amendment.

I've litigated a few patronage dismissal cases - including Harris v. Hayter, 970 F. Supp. 500 (W.D. Va. 1997), Chester v. Wise County Electoral Board, 1997 WL 381964 (4th Cir. 1997), Cooper v. Lee County, 1999 WL 631240 (4th Cir. 1999), Gilliam v. Lee County School Board, 2002 WL 31906274 (W.D. Va. 2002) - and every one was very, very interesting and lively, and so is the John Tucker book.

I recall at oral argument in the last one, the judge asked me, was there any evidence that the man who replaced the plaintiff was a Democrat? Not at all, I answered, I asked about that in the plaintiff's deposition and she said the only thing she could think of was that some of his co-worker friends were Democrats. Otherwise, she couldn't classify him, because he was from another county and did not have a "Lee County name."

But I have a Lee County name. One day when I was hanging out in the courthouse there, a fellow started talking to me and asked who I was, and when I told him, he asked me how I spell my last name. According to him, the ones who spell it with an "o" are Republicans, and the ones that spell it with an "e" are Democrats, and cited a few examples. Another time at the same courthouse, someone else told me that the exact opposite is the case, citing another few examples. Retelling this nonsense led me to another story I have now had confirmed to me several times.

A Wise County lawyer tried a wrongful death case in Dickenson County and got a much lower verdict than he thought was right or even fair, so he asked his friends in the courthouse what he had done wrong. He was told that his error was in letting a bunch of Republicans on the jury, then telling them that his man had been buried by the Democrats' funeral home - which sounds almost like a tale from this book or this book by Harry Caudill.

Sunday, August 31, 2003

Inmate death case referred to Judge Conrad for mediation

The Roanoke Times reported here on Saturday that a court order has been entered referring to Judge Glen Conrad for mediation the case brought by the estate of a former Wallens Ridge inmate against the Department of Corrections and others over the death of the inmate, allegedly as the result of the use of a stun gun.

I don't know what were the circumstances leading to this order. As in most things, the practice in the Western District is informal. What sometimes happens is that the judge will ask the parties whether they want to have a magistrate judge serve as mediator, and give them some chance to proceed with the mediation if that's what they want to do. I was surprised to hear at the 4th Circuit Judicial Conference that the Fourth Circuit's own mandatory mediation program results in settlements a third of the time. I've never come close to mediating a case in the Fourth Circuit - it seems to me difficult to compromise after someone has already been declared the winner. The uncertainty that generates settlement is harder to argue on appeal.

I never knew Judge Ted Dalton of the W.D. Va. He died in 1989, after more than 30 years on the bench. He was appointed by President Eisenhower after his second campaign for governor, which he lost to Lindsay Almond in 1957. (A good book about the 1957 election and other aspects of the career of J. Lindsay Almond, Jr., who was later a federal judge himself, is this one by Roanoke Times writers Ben Beagle and Ozzie Osborne.)

I have heard lawyers and judges describe how Judge Dalton could be very active in pushing settlements in civil cases. The closing thing to that kind of experience that I have had in the Western District (or elsewhere) was in Roanoke some years ago when, before the damages phase of the trial began, I got my money people on the telephone and got the trial judge (not Judge Dalton) to talk to them, and he said essentially this: "Good morning. It's my opinion that the jury will award substantially more than $200,000 in this case." Then he handed the phone back to me, said the trial would start again in five minutes, and left the room. Five minutes later, when he called the jurors into the courtroom, he told them to go home, since by then we had settled the case.

My favorite judge-aided settlement story of all time, though, involved a case where another federal judge from the W.D. Va. gave the lawyers (either at my request or with my enthusiastic agreement) one hour to try to settle a case before he ruled on my motion for a preliminary injunction. An hour later, he came back out, and when we told him that the case was over, he said very well, and went back to his office. As we were packing to leave, the opposing counsel said to me, "I wonder how the judge was going to rule on your motion for preliminary injunction." Seeing the possibilities, I told him that I thought the judge would probably tell us, if we asked, and so we went back to his chambers, and sure enough, the judge told us what he would have done - a rare chance to find out instantly whether the settlement was a good idea. (For my side, it was, and I have retold versions of that story 100 times, make it now 101.)

Virginia's ceremonial governor

This week's column from Barney Day concludes that Governor Warner may be the Commonwealth's first "ceremonial" governor since the 1950s.

The economy by the numbers in one Southwest Virginia county

This article from the Smyth County News tells the tale of the numbers on the economy in Smyth County, Virginia:

Regarding the county, the article says:

"Smyth County is struggling to survive in a difficult state and national economic climate. According to 1990 and 2000 U.S. Census figures, the county’s population grew by about 700 people during the decade. However, labor force numbers have dropped significantly, as has the Smyth County Schools student population.

Official unemployment numbers among Smyth County workers dropped in July. June unemployment was 9.8 percent and July figures showed 259 more people working, for an 8.6 percent unemployment rate.

However, Smyth County’s overall employment has dropped by 1,012 working people in the past ten years. Oddly enough, the 1993 unemployment rate was 11.7 percent, the highest of the decade. Yet the July 2003 unemployment rate is 8.6 percent – 3.1 percent lower – when 1,000 less people are actually working in Smyth County.

If Smyth County still had its 17,888 labor force calculated in 1993, with this July’s number of employed workers (14,792), the unemployment figure for 2003 would be more than 17 percent.

What makes the difference is the labor force headcount has dropped by 1,384 – a reduction of 8.6 percent from the 1993 levels. During the past 10 years, despite the reported population increase, some workers have left Smyth County, some have started working outside the county, and others returned to school or stopped seeking work for other reasons.

Perhaps the most evident shift in Smyth County is the dropping school population. From school years ending in June 1993 to June 2003, the Smyth County school system lost almost 300 students from its overall population. School officials expect far more student losses this year."

More on Interstate 81

Mike Still of the Bristol paper had this excellent article on Interstate 81, discussing at length the difficulties with its overcrowding and the difficulties with the solutions.

Among the highlights -
1. The article notes Senator Wampler's opposition to the element of one of the plans calling for tolls for all traffic.
2. The article says both contractors' plans involve no element of improved rail transportation in Southwest Virginia.
3. The possible $1 billion in federal money already carries the proviso that there must be separate truck lanes - before the state has had a chance to decide whether that is a good idea.

More on tower siting in Virginia

The Washington Post has this article on another cellular tower siting controversy, this time in Loudoun County.

Early this year, the Fourth Circuit heard oral argument in an interesting tower siting case from Montgomery County in Southwest Virginia - Judge Kiser's opinion for the district court is here.

On motor sports and economic development in Virginia

This AP report notes in connection with the new motorsports economic development initiative that Southwest Virginia and other rural parts of the Commonwealth have a history with auto racing. Apparently, once there were tracks at Haysi, St. Paul, and Breaks.

About 30 some years ago, I went to the race track at Coeburn, when my aunt Lois was "Miss Lonesome Pine" and road in the pace car. It's still business, so far as I know.

On reporting crime data in schools

The Roanoke Times has this report which concludes that state and federal law creates an incentive for Virginia's schools to under-report crime on campus.

The articles explains that "[t]he Code of Virginia, the federal Gun-Free Schools Act and the federal Safe and Drug-Free Schools Act require state schools to report all incidents that occur on school property involving assaults, sexual crimes, firearm possession, drug crimes, explosive or incendiary devices, bomb threats and threats to staff," and that "[t]he new federal law contains a provision that will label a school as 'persistently dangerous' if it does not meet state-set guidelines for three years in a row. Each state adopted its own criteria for identifying 'persistently dangerous schools.'" The federal legislation "will allow parents to remove their children from schools that have consistent safety problems."