Kelsey (unofficially) on Evidence

This article by Judge Kelsey of the Virginia Court of Appeals and published in American Judicature describes his view (as a matter of academic interest) on the answer in Virginia evidence law to the question posed by the Daubert standard for admissibility of expert testimony, and that is, who gets to decide what is reliable science.

And, the answer is, the evidence usually goes to the jury to decide disputed questions of reliability, so long as the trial judge can agree as a threshold matter that "a reasonable juror could find the expert opinion reliable and decide the case in reliance upon it."

As I wrote here, at last year's Winter Meeting of the VBA, there was a session on Daubert and Virginia law, and "Judge Kelsey's introduction was so excellent I wish he would write it down and publish it." Now he has.

Bogus claims against Wise County judge, clerk of court, and special prosecutors dismissed

In Stanley v. Gray, Chief Judge Jones granted the motions to dismiss of Wise County (based on Monell), Judge Stump (based on judicial immunity), special prosecutors Greg Kallen and Gerald Gray (based on prosecutorial immunity), and Jack Kennedy (based on quasi-judicial immunity). The judge also dismissed the non-state actors (based on their not being state actors).

I used to follow David Stanley's case in articles like this one and this one in the Coalfield Progress.

New judgeships dead for '07?

The House bills adding circuit court (HB 2506) and district court (HB 2505) judgeships never got past the money minders. Does that mean no additional judges for the 30th Circuit and 28th District, I wonder.

Judge Greer on jury duty

In the case In re Heritage Propane, Judge Greer of the E.D. Tenn. at Greeneville explains the importance of jury duty to the American way of life.

He says in part:

Described as "the very palladium of free government" in The Federalist Papers, the right to a jury trial is a fundamental part of the American judicial system. All thirteen of the original American colonies adopted guarantees of trial by jury. By the time of the American Revolution, the abridgment of the right to jury trial was among the most grievous complaints of the colonists against George III. The 1787 convention wrote jury trial guarantees into the Constitution (Article III) and the 1791 Bill of Rights repeated the guarantee for criminal cases (the Sixth Amendment) and added one for civil trials (the Seventh Amendment). Free election and trial by jury, wrote John Adams, were the people's only security "against being ridden like horses, and fenced like sheep, and worked like cattle, and fed and clothed like hogs and hounds." Thomas Jefferson wrote in a letter in 1789, while serving as Ambassador to France: "Were I called upon to decide whether the people had best be omitted in the legislative or judiciary department, I would say it is better to leave out the legislative."

Interesting stuff

In Missouri, it says here, "[t]he Missouri Miner, the student newspaper of the University of Missouri - Rolla (UMR), is pursuing legal action against UMR for first amendment violations due to censorship and cutting one-third of the newspaper's annual budget." We know you can't do that, because of the Rosenberger v. University of Virginia case.

To heck with Orville Redenbacher, the future of corn and grain is in alterative fuels, or so this story about the Virginia Corn Growers Association and the Virginia Small Grains Association suggests.

You never know when Roe might go, and so this article describes HB 2124, proposed by Delegate Bob Marshall, which provides "that if and when Roe v. Wade is overturned by the U.S. Supreme Court, the Virginia law of June 30, 1970 would be reinstated, essentially criminalizing abortion." HB 2124 never got anywhere this year, but it involves the interesting strategy of voting now on what may never happen, a Supreme Court decision overturning Roe v. Wade.

Don't eat your cellmate's breakfast, is one lesson to be learned from this account of the capital murder case tried in Abingdon that resulted in the jury's recommendation of the death sentence, where an inmate at the federal penitentiary outside of Jonesville was charged with the murder of another inmate.

In Norfolk, after all the fuss, Senator Rerras has declared his choices are two women, one of them a Democrat, according to this article from the Norfolk paper, which suggests that either the Norfolk paper's coverage skewed the results or the coverage itself was skewed in the first place.

What the Fourth Circuit ate for breakfast

I can't say that I'm following the copyright issues, but I was much amused by the beginning of this post about the Fourth Circuit's decision in Christopher Phelps and Associates, LLC v. Galloway, by the panel of Judges Niemeyer, Motz, and Traxler. The beginning of the post includes a link to a speech from Judge Kozinski, titled "What I Ate for Breakfast and other Mysteries of Judicial Decision Making."

Interesting tale of an ex-blogger

Via Badrose, here is the compelling story from Sunday's Roanoke paper of Joe Stanley, the Perseverando blogger, now raising his sister's daughter in Franklin County.

Terry Kilgore charged once again with associating with Southwest Virginia's finest

Jeff Schapiro tries to slime just about everybody in his latest column, about how Del. Kilgore proposed a bill that Frank Kilgore wanted so he and his wife, Circuit Court Judge Chafin, could have a home on property across the river in Wise County.

I don't understand Schapiro's purpose in exposing the connection between Del. Kilgore and civic-minded people like Frank Kilgore and Chad Dotson. Southwest Virginia needs more people involved in public affairs, not less, and you can disagree with what political activists do or the candidates they support without missing the point that they are trying to make a difference when most people stay on the sidelines.

Now, as to the bill itself, I didn't like it and it deserved its fate, but this story doesn't make Terry Kilgore a tool of the special interests. Before now, I never heard of Frank Kilgore pursuing legislation for himself. I picture him traveling to Richmond with a mother elk in the back of the truck ready to testify on the need to reform the Commonwealth's hunting laws, or pitching the pharmacy school to me (as if I had anything to do with it).

Mr. Schapiro can cry "politics" but sometimes, like Professor Sabato said, politics is a good thing.

Interesting stuff

The Norfolk paper in this column and this article examine how judges are selected in Virginia.

The Richmond paper reports that computer chips have outpaced both coal and tobacco as Virginia's leading export.

The Norfolk paper reports that some character has filed a civil rights lawsuit in federal court over the Wren Cross matter. I wonder what his theories could possibly be.

This AP story and this report from the Norfolk paper describe an ethics complaint filed by some lawyer from Roanoke challenging the participation of legislators whose firm does eminent domain work in the formulation of laws in that area. The Attorney General has opined that there is no violation.

Finally, in Canada, the Supreme Court ruled that the perils of operating a Zamboni machine were not reasonable foreseeable to the manufacturer, overturning a verdict for an injured Zamboni operator.

Norm Pattis' bad day

You never know what might happen when you go to court, as demonstrated by this post from Norm Pattis, which begins:

"I learned a long time ago that anything can happen in a courtroom. But I was still surprised yesterday when I appeared in New London Superior Court for a suppression hearing in an arson case. It never occurred to me that I would be asked to make a proffer indicating that I had never been sexually involved with the presiding judge."

The post includes a link to this news report on the hearing.