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.

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

Law.com'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.

47 Virginia schools don't pass muster under federal guidelines

According to this report, 47 Virginia schools under the federal guidelines for recipients of Title I federal money.

Doctor who blamed guards for inmate death gets fired

The AP reports here and the Richmond Times reports here that a doctor who blamed prison guards at the Wallens Ridge facility for the death of an inmate has been fired from his position with a contractor for the Department of Corrections.

Judge Flannagan accepts controversial plea deal in child pornography case

The Bristol paper has this report on the acceptance by Circuit Court Judge Charles B. Flannagan II of the plea agreement in a Washington County child pornography case.

What makes the case interesting if not bizarre is that the No. 2 man in the Attorney General's office has publicly declared that the punishment under the plea deal is inadequate and the case should have been handled by federal prosecutors.

The incumbent Commonwealth's Attorney in Washington County was elected as a Democrat but is not seeking re-election. The AG's man, Joseph Carrico, was previously elected Commonwealth's Attorney in Wise County as a Republican. I would have thought, however, that the Commonwealth's attorneys and the Attorney General's office were supposed to be mostly on the same team, at least in public.

Blaster worm gets Tazewell school system

The Bluefield paper reports here that the computer systems of the Tazewell County, VA school systems were among the victims of the Blaster worm.

In this office, myself and a staffer are sort of amateur computer hobbyists, we find out sporadically about which MS updates are good and which are bad through such resources as Woody's (which I recommend completely), and when we get worried about something, we call our computer guys, who usually tell us to do whatever we have already decided to do, and we do it. So, last week we did the update to avoid Blaster. (This system does not strike me as exactly fool-proof.) Also, the two of us rule on all the virus hoaxes that someone in the firm hears about from somebody.

The message we sent around on Blaster was this:

---------------------

Donna and I have decided it is necessary for every machine to install a Windows patch - the one that is touted by the Dept. of Homeland Security.

The story below (which I just received) is part of the reason why -

Worms shut down thousands of Windows PCs

By Brian Livingston

I reported in the last issue of Brian's Buzz on the "port 135" security hole that Microsoft recently described as critical. This flaw affects not only Windows XP, 2000, and NT 4.0, but also the much-hyped new Windows Server 2003. Microsoft has released a patch, but most people haven't installed it yet. Well, time's running out - worms that exploit the flaw started making attempts to hit every PC on the Internet just a couple of weeks after the vulnerability became publicly known.

As I write this, Stanford University has reported that 2,400 of its roughly 20,000 campus PCs were infected in a matter of days by worms that took advantage of this hole. Malicious "Trojan" code that was deposited onto the machines' disks may take weeks to clean out of the systems, said Cedric Bennett, Stanford's director of information security services in a statement.

Even worse, the University of California at Berkeley announced that, due to the same attacks, it was being forced to shut down all access from outside the campus to its Windows-based file sharing and Exchange servers for a period of four days.

If you haven't yet secured your own systems against this hole, jump to my July 24 issue and read about the steps you need to take. To send me more information about this, or to send me a tip on any other subject, visit BriansBuzz.com/w/contact.

Lynchburg judge defers on recusal issue in cases where local lawyers may be witnesses

This story from the Lynchburg paper says that the circuit court judge was unprepared to determine that he and his peers from the 24th circuit were automatically disqualified from hearing the evidence in a case where one side claimed that two lawyers were likely to be witnesses. The opposing counsel in the case were identified as Wyatt Durrette and Bill Poff, which sounds like a clash of titans to me.

Construction contract claims against county fail as untimely

This article describes a circuit court ruling against a contractor on its claims related to the construction of a county water plant in Spotsylvania County.

Organized labor to focus campaign money on Southwest Virginia

"Virginia AFL-CIO President Daniel LeBlanc, who presented $10,000 checks Thursday to the Virginia Democratic Party and the Virginia Democratic Senate Caucus, said the labor movement will focus on races where it can have the most impact, including the coal-mining region of southwest Virginia," according to this news story from Channel 4 in D.C.

What are those notations on the federal district court docket from PACER?

Inter Alia links to this new legal reference blog which links to this LLRX.com article on what those notations mean on the U.S. district court docket sheets - like whether when you are COR, you want to be LD NTC.

The impossibility of remanding a case that was never removed

In Payne v. Merrill Lynch, the Fourth Circuit in a per curiam opinion for the panel of Judges Widener, Michael, and Gregory concluded that the trial court erred in "remanding" a case that was filed originally in federal court but had been consolidated with another case that was removed from state court.

Retiring Southwest Virginia judges

General District Court Judge Danny Bird from Wytheville is retiring, as reported here.

Also, the Bristol Bar has circulated a letter from Judge Charles B. Flannagan, II, indicating that he will retire as of February 1, 2004.

E.D. Va. judge allows class action in land use dispute over fiber-optic cable

Judge Payne of the E.D. Va. will allow plaintiffs to proceed in the form of a class action to seek relief against Dominion Resources on their claim that the power company ran its fiber-optic cable over their property without permission, as reported here in the Richmond paper.

More on the VMI prayer case

The Roanoke Times has this article and the Richmond Times-Dispatch has this article and the Washington Post this article on the denial of rehearing en banc by the Fourth Circuit in the VMI dinner prayer case.

Piping sewage straight into the creek in Wise County

The Coalfield Progress has articles here and here on the problem of homeowners in Wise County who pipe their sewage straight into the nearest creek.

Odd case filed against Lynchburg YMCA

As reported here, the Lynchburg YMCA has been sued on a theory that it was negligent in failing to provide adequate parking, and therefore it is responsible for the death of a woman run down in the street while en route to the YMCA.

Without any research, I don't see that there is any such duty (outside of maybe the zoning ordinance) and I don't see what the parking has to do with anything anyhow. Also, would the Y's charitable immunity extend to such a case? There are cases still where local YMCAs win on charitable immunity, but maybe that would not apply to matters of parking.

Solicitation case brings challenge to Virginia's sodomy statute

As reported here in the Virginian-Pilot, a defendant in a Virginia Beach solicitation case is trying to claim that the Virginia sodomy statute is unconstitutional. The case law, including the last round of cases from Roanoke, says he has no standing to raise the issue. The constitutional right of privacy, whatever its limits, does not extend to the men's room at Sears.

Fourth Circuit denies rehearing en banc in VMI supper prayer case

Here is the order by which the Fourth Circuit denied rehearing in the VMI prayer case, by a vote of 6-6, with opinions dissenting from the denial of rehearing by Judges Widener, Wilkinson, and Niemeyer.

Perhaps the Commonwealth will take the case on to the Supreme Court, where Mr. Hurd has had some luck in his last couple of cases arguing for Virginia.

Obenshain daughter a contender for state GOP post

The Winchester paper has this article on Kate Obenshain Griffin, the daughter of Richard Obenshain who died in 1978 plane crash after being nominated for the U.S. Senate, and a leading contender to replace the fellow who just quit as the head of the state Republican party in Virginia.

Nice work if you can get it?

According to this report, the State of Nevada has given a Virginia law firm a contract for up to $4 million to fight the location of a nuclear waste dump in that state. The hourly rate for the lead partner in the matter is said to be $450 per hour. The firm is Egan, Fitzpatrick & Malsch based in McLean, and has this website, www.nuclearlawyer.com.

Landowners sue Virginia town challenging validity of historic district

As reported here, landowners in the Town of Washington (home of the Inn at Little Washington) in Rappahanock County are suing because the local historic district laws prohibit them from building a new house on their property.

The discovery requests, served with the complaint, include the following:

"In papers accompanying the lawsuit, the Worleys requested the issuance of subpoenas to Architectural Review Board member Susan Babcock, Town Council member Claudia Mitchell and the Inn at Little Washington seeking documents "relating" to the lawsuit.

Computers belonging to Babcock and Mitchell were also being sought "for inspection and analysis" and were to be delivered to the office of the Clerk of the Circuit Clerk, according to the subpoena request.

Babcock and Mitchell were also asked to provide documents relating to any visits to the Inn at Little Washington "as invitee, patron or guest" since July 26, 2002, the date when the Worleys first applied for approval for construction of their house.

The Inn at Little Washington was also asked to supply documents and receipts relating to any council members, ARB members or any other town official who has been "a customer, guest or patron" since July 26, 2002."

So, if you can beat them, really annoy them.

Why John Kerry will never win in Philadelphia

This delightful article in the Washington Post explains why John Kerry hasn't a clue when it comes to ordering and eating a Philly cheese steak.

The article says in part:

"If Sen. John F. Kerry's presidential aspirations melt like a dollop of Cheez Whiz in the sun, the trouble may well be traced to an incident in South Philadelphia on Monday.

There, the Massachusetts Democrat went to Pat's Steaks and ordered a cheesesteak -- with Swiss cheese. If that weren't bad enough, the candidate asked photographers not to take his picture while he ate the sandwich; shutters clicked anyway, and Kerry was caught nibbling daintily at his sandwich -- another serious faux pas.

'It will doom his candidacy in Philadelphia,' predicted Craig LaBan, food critic for the Philadelphia Inquirer, which broke the Sandwich Scandal. After all, Philly cheesesteaks come with Cheez Whiz, or occasionally American or provolone. But Swiss cheese? 'In Philadelphia, that's an alternative lifestyle,' LaBan explained.

And don't even mention Kerry's dainty bites. 'Obviously, Kerry's a high-class candidate, and he misread the etiquette,' LaBan said. 'Throwing fistfuls of steak into the gaping maw, fingers dripping -- that's the proper way.'"

The last summer I lived in PA I ate steak sandwiches every night, but they are harder to find in Southwest Virginia - the best places are out toward S. Holston Lake on U.S 421, far from the office but worth the trip.

Waiver and limitations bar claim for death in charity bike ride

The Washington Post has this article on the ruling by D.D.C. Judge Rosemary Collyer against the claims of the representatives of a woman who died as the result of her participation in a bike ride, because she had signed a written waiver as to some claims and others were barred by the Virginia statute of limitations.

When I was a law clerk, Judge Collyer, then a lawyer with Crowell & Moring, appeared in a case in Big Stone Gap, on the interesting issue of whether the special commissioners who were attempting to collect the contempt fines imposed by Judge McGlothlin of the Circuit Court of Russell County in enforcement of his injunction against strike misconduct by the United Mine Workers could garnish the dues collected by employers for union members under pursuant to the check off requirement in their collective bargaining agreements with the Mine Workers. (Judge Jones was representing the special commissioners, Ms. Collyer and some other lawyer were there for the employers, opposing the garnishment.) So far as I recall, Judge Williams never ruled on this issue, which was a good idea, since the state court contempt fines were ultimately thrown out by the Supreme Court of the United States.

More on the schism within the Sixth Circuit

The NY Times (registration required) has this article on the split within the Sixth Circuit, and it says, among other things:

"In an extraordinary breach of judicial etiquette, the judges on the federal appeals court there have repeatedly accused each other of lying and underhanded conduct in important cases involving the death penalty and affirmative action. The public airing of these internal battles in decisions of such social importance has been the talk of appellate specialists nationwide."

Judge Turk reversed for refusing mixed-motive instruction in W.D. Va. Title VII case

In Rowland v. American General Finance, Inc., the Fourth Circuit in an opinion by Judge Motz joined by Chief Judge Wilkins and Judge Wilkinson held that Judge Turk of the W.D. Va. erred in refusing to give the plaintiff's requested jury instruction regarding "mixed motive," applying the Supreme Court's decision from this term in the case of Desert Palace, Inc. v. Costa.

In the opinion, Judge Motz says, "there is no question that without the mixed-motive
instruction, Rowland had almost no chance of prevailing." That seems like a strange thing to say, and I'm not sure that I agree with it, as either necessary or even true.

The court went on to say that Judge Turk abused his discretion in admitting hearsay evidence, but concluded that there was no error in allowing the defendant to use exhibits and witnesses that were not disclosed in full compliance with the pre-trial disclosure requirements of Rule 26.

South Carolina rules no negligence claim against banks for issuing credit card to impostors

Law.com has this article about a recent decision by the Supreme Court of South Carolina on a certified question from the D.S.C., in which the Court held that banks could not be liable for negligence in issuing credit cards to impostors.

The question certified was this: "Does South Carolina law recognize the tort of Negligent Enablement of Impostor Fraud? If so, what are the elements of the tort and does plaintiff's complaint state an actionable claim for the tort?" Man, that's a weird question. Negligence in negligence. I would have guessed the question was more like, do banks have a duty to exercise reasonable care to prevent impostors from causing harm to others by obtaining credit cards in their names - or something like that.

The Court ruled on the basis that the connection between the credit card issuers and the consumers is too attenuated.

The bear was just looking around

According to this report, authorities in NC south of Danville are charging a man for shooting a black bear, discounting his story that the bear was chasing his children, and concluding with this comment:

"'This is black bear,' said Joyce of the bear that was recently shot. 'It’s not a grizzly bear or anything that people see in the movies and all. (The bear) was just looking around. We ask that people not shoot them.'"

More on Allyson Duncan, newest member of the Fourth Circuit

The Virginian-Pilot has this interesting story on Judge Allyson Duncan, who was nominated to the U.S. Court of Appeals for the Fourth Circuit by President Bush and has been confirmed by the U.S. Senate.

Richmond paper tells on Lynchburg paper for AG fundraising story

In this editorial, the Richmond paper says the Lynchburg paper messed up in pointing the finger at Virginia Attorney General Jerry Kilgore for fund-raising that was done by Mark Earley.

The editorial concludes: "Pesky little facts sometimes get in the way. And the attempted smear was a tad tawdry."

The construction on Interstate 81

The Richmond Times-Dispatch has this article on the impact of the proposed widening of Interstate 81 on its view of the surrounding countryside.

Roanoke Times says extend 21-day rule for people who plead guilty

The Roanoke Times has this editorial saying the proposed revision of the 21-day rule allowing post-conviction evidence of innocence should be extended to include those who enter guilty pleas.

More on prayer at Chesterfield County board of supervisors' meetings

This opinion piece recites the following:

"Officials in Chesterfield County still don’t get it. So a few weeks ago a priestess of the Wiccan religion took them to court, challenging the “prayer policy” as a violation of religious freedom. It seems that the Chesterfield Board of Supervisors has decreed that “Judeo-Christian” prayers are constitutional – apparently because they are part of something called “American civil religion.” And since they worship one God, Muslims have been added to the list. Other faiths with deities that don’t pass muster – including Wiccans, Hindus and Buddhists – need not apply."

The piece concludes that "The day a court orders Chesterfield County to add a Wiccan priestess to the prayer list will be the last day of prayer at a board meeting."

Don Beyer is a Howard Dean man

Just in case you were wondering, former Virginia lieutenant government Don Beyer is supporting presidential hopeful Howard Dean, as reported here. (I wonder what kind of car Dean drives.)

Hunton & Williams lawyer becomes president-elect of ABA

The Richmond Times-Dispatch has this report on the selection of Robert Grey as president-elect of the American Bar Association.

Judge Turk and Judge Jones of the W.D. Va. comment on sentencing restrictions

In this Roanoke Times article, Judge Turk and Judge Jones offer their perspectives on the federal law limiting their discretion in imposing criminal sentences.

Judge Turk noted that he has been reversed four times for downward departures from the federal guidelines. Judge Jones said he would be undeterred by the Justice Department's monitoring in deciding which cases are appropriate for downward departures.

Last week, as reported here, a federal judge in North Carolina "issued an unusual order declaring he would no longer accept plea agreements negotiated by federal prosecutors and defense attorneys in which defendants waived and the government retained rights to appeal the sentence."

Apparently, however, the judges of the W.D. Va. are more restrained than many of their colleagues, if these statistics from the article are correct:

"Federal judges in the Western District departed in only 1.8 percent of the cases in fiscal year 2001, the last year for which figures were available. That figure does not include instances in which judges have sentenced defendants to less time based on recommendations from federal prosecutors, which happened 30.1 percent of the time in fiscal year 2001.

In the 4th Circuit as a whole, federal judges sentenced defendants to less than the guidelines called for in 5.2 percent of the cases during fiscal year 2001, according to the U.S. Sentencing Commission.

By contrast, in the 9th Circuit, which is widely considered the most liberal circuit in the country, federal judges in Arizona departed below the guidelines in more than 62 percent of the cases."

4th Circuit nominee Allen described as "hard to pin down"

The Virginian-Pilot has this story on those with varying views about Claude Allen, who has been nominated by President Bush to a vacancy on the U.S. Court of Appeals for the Fourth Circuit.

The article includes this paragraph regarding Allen's rating from the ABA:

"Those concerns were highlighted late last month when the American Bar Association rated Allen as 'qualified' for the bench, but withheld the organization's top evaluation of 'well qualified.' The ABA panel did not explain its rating, although the criteria it uses suggests that a nominee to federal court should have been admitted to the bar for at least 12 years. Allen spent 7 1/2 years as a judicial clerk, as a private attorney and working for the Virginia Attorney General's Office."

The article also notes:

"The Senate Judiciary Committee has not yet scheduled a hearing to consider Allen's nomination. Although the Republican's beliefs on reproduction, immigration and other topics are likely to be scrutinized closely, it is unclear how many organizations will formally oppose the nomination."

Inaccuracies in online directories about health providers

The Washington Post has this story on inaccuracies in online directories on health care providers, including those in Virginia.

More than you want to know about PDF

With electronic filing coming to the federal courts in our neighborhood, area lawyers will soon need to know more about PDFs. Dennis Kennedy links to an article from the PDFzone, a site which he accurately describes as "always useful."

Appeals court affirms attorneys' fees against EEOC

Abstract Appeal links here to this 11th Circuit decision where the court of appeals upheld an award of fees against the EEOC, with a final footnote questioning the motives of the agency's litigation strategy.

More on Ashcroft, judges, and sentencing

Curmudgeonly Clerk has this interesting post, whileLegal Theory Blog has a post citing this post by Is That Legal.

More on the Alexandria circuit court judge dispute

In July, the Virginia Connection had this detailed article on the reaction of local officials to the efforts of Republican legislators to influence the selection of the Circuit Court judge for Alexandria.

Virginia county issues campaign sign rules

This article describes the restrictions on campaign signs in Loudoun County.

What to do with a bad hearing transcript

In U.S. v. King, the Fourth Circuit in a per curiam opinion for the panel of Judges Luttig, Motz, and Shedd affirmed the guilty plea and convictions of the defendant, based on the written record, of which it was noted in a footnote: "The material includes the supplemental appendix in which the court reporter who transcribed the Rule 11 proceeding stated in an affidavit that she omitted a word in the original transcript. The court reporter stated in her affidavit that defense counsel responded to the court’s question as to whether he had any question about King’s competence, 'I have no doubt, Your Honor.' A corrected transcript page was submitted."

I've wondered about that before - for in-court proceedings, no one gets to fill out an errata sheet on the court reporter's transcript, which is usually remarkably good but not perfect. (I wouldn't take the court reporter's job for any amount of money.)

If you're scoring at home, or even if you're . . .

Sometime earlier this week, the 5,000th visit was made to SW Virginia law blog (since I figured out the SiteMeter in March), with over 3,000 in June and July.

By contrast, the Bravenet counter on Howard Bashman's How Appealing site says something over 1,800,000.

Probably the same ratio applies between his income and mine.

UT president resigns

The AP reports here that the president of the University of Tennessee at Knoxville is resigning, amid questions about money and ethics.

I've been vaguely following this via HobbsOnline AM.

In the perfect world, every university would have a president like John Casteen.

More on 21-day rule reform efforts

The AP has this report on further efforts to reform Virginia's 21-day rule limiting when new evidence of innocense can be introduced after a final order of conviction. The latest news is that defense lawyers are arguing that people "who plead guilty to crimes should not be excluded from a proposal eliminating Virginia's time limit for convicted criminals to produce new evidence of innocence."

This article in the Virginian-Pilot says the panel is thinking those who plead guilty should not get the benefit of extra time.

Thinking on the Justice Department plan to keep score on judges and sentencing

If the Attorney General is keeping score on federal judges, with the idea of creating a judicial blacklist, as speculated here in the NY Times (registration required) and here in the Washington Post, just how is that supposed to work? If a judge makes too many downward departures, will the Justice Department pursue a higher or lower number of criminal cases before him or her? If the answer is lower, is that like punishing your friends and rewarding your enemies? What else is there - bad job ratings for trial court judges seeking promotion to the court of appeals? Few of the trial court judges over say 55 are going to be considered for promotion to the courts of appeals.

On the other hand, I guess the Justice Department is as entitled to try to forum-shop like anyone else when they have a choice between "friendly" and "unfriendly" jurisdictions - so maybe this data collection effort is not really news.

Prosecutors apply Virginia's lynch law to death case

This article in the Virginian-Pilot explains why prosecutors are using Virginia's "lynch law" in the prosecution over a death in Virginia Beach.

Fredericksburg sets up e-mail archive

This article describes the efforts by the City of Fredericksburg, VA to archive all the e-mail to and from the City Council. The woman in charge was quoted as saying, "This has been an absolute nightmare." I can believe it.

Support for UCITA erodes further

According to this article, support from the National Conference of Commissioners on Uniform State Laws for the Uniform Computer Information Transactions Act ("UCITA") is fading - while UCITA has been passed only in Maryland and right here in Virginia. The article notes that "four states--Vermont, Iowa, West Virginia and North Carolina--have passed anti-UCITA "bomb-shelter" provisions, which make UCITA laws in Maryland and Virginia inapplicable to residents of those states." The article says the following regarding NCCUSL's dropping of support for UCITA:

"The lack of acceptance has prompted NCCUSL to announce on Friday that it had pulled the plug on all efforts to help states introduce and enact the bill. Without that backing, UCITA is unlikely to gain further consideration from the states, according to Katie Robinson, a NCCUSL spokeswoman.

"Without the conference pushing UCITA, I don't see any other legislative activity happening on it," Robinson said.

NCCUSL, which concluded its annual meeting in Washington this week, also disbanded the special committee that oversees its UCITA activity. Robinson said politics had interfered with the group's efforts in support of the bill, adding that the group may revisit the subject of state laws that govern software contracts and digital information in the future."

NCCUSL's withdrawal of support for UCITA also caught the eye of this commentator, who asks "What's to be done with UCITA?".

Streaming video helps kids learn in rural Virginia

This interesting article says that a study of 1,400 elementary and middle school students in rural Virginia shows that their academic achievement improved by 12% after implementation of a program that included the use of streaming video as a teaching tool.

Summary judgment affirmed where plaintiffs failed to file a response to defense motion

In Wilson v. Dryvit Systems, Inc., the Fourth Circuit in a per curiam opinion for the panel of Chief Judge Wilkins and Judges Gregory and Shedd affirmed summary judgment in a case where the plaintiffs (for reasons not stated in the opinion) failed to file anything in response to defendants' motion for summary judgment, though they did later file a motion for reconsideration.

Government accuses Lentz counsel of misconduct for talking to jurors

As reported here by the AP, federal prosecutors are accusing the defense lawyers for Jay Lentz of misconduct in talking to jurors about their deliberations in the case where Lentz was convicted of federal kidnapping but the verdict was overruled by the trial judge, Judge Lee. The defense is claiming that by some means, parts of exhibits that were not admitted into evidence were allowed into the jury room and considered by the jurors.

I often tell the story that after a trial, a juror called me at my office, and when we hung up, I panicked, wondering whether something was wrong with talking to the juror. Eventually I called someone who told me there was no problem ethically, and moreover, I should forget about it because it was his considered view that the jurors lie - the ones who say they were with you were actually the ones blackening your client's name back in the jury room, and the reason they talk to you is because they have a guilty conscience.

The ethics rule in Virginia says this, as reported here:

RULE 3.5 Impartiality And Decorum Of The Tribunal
(a) A lawyer shall not:
(1) before or during the trial of a case, directly or indirectly, communicate with a juror or anyone the lawyer knows to be a member of the venire from which the jury will be selected for the trial of the case, except as permitted by law;
(2) after discharge of the jury from further consideration of a case, ask questions of or make comments to a member of that jury that are calculated merely to harass or embarrass the juror or to influence the juror’s actions in future jury service; or
(3) conduct or cause, by financial support or otherwise, another to conduct a vexatious or harassing investigation of either a juror or a member of a venire.

...

(c) A lawyer shall reveal promptly to the court improper conduct by a member of a venire or a juror, or by another
toward a venireman or a juror or a member of the juror’s family, of which the lawyer has knowledge.

The duties of a circuit court clerk in Virginia

The Supreme Court of Virginia has published these 106 pages describing the duties of a Virginia circuit court clerk.

Bleak House in Charlottesville

In Grover v. Comdial Corp., Judge Michael granted the plaintiff's motion to for a second remand of the case to state court, over the defendant's claim of ERISA preemption, in an opinion that begins: "The history of this case is long and tortured, evoking the well-known image of Mr. Dickens’ Jarndyce and Jarndyce, a case in equity dragging 'its dreary length before the court, perennially hopeless.'"

We had no Dickens references in the opinions that were published during my clerkship, years ago, but my fellow law clerk did manage to insert what to my knowledge is the only published reference to the plot of the movie "Body Heat." See U.S. v. Stapleton, 730 F. Supp. 1375, 1378 n.6 (W.D. Va. 1990) ("This motive for murdering the husband has been the subject of countless books and films, e.g., the recent motion picture entitled Body Heat."). Body Heat is well-known to law students (or it was in my day) as the film in which the Kathleen Turner character picks out the lawyer played by William Hurt to be her paramour and co-conspirator in the murder of her husband based on his prior history of flubbing the Rule Against Perpetuities, as discussed here, here, and here.

Summary judgment in public employee procedural due process case

In Franklin v. Hanson, Judge Michael of the W.D. Va. granted summary judgment on the plaintiff/public employee's pre- and post-termination procedural due process claims.

City of Roanoke settles brain injury case for $8 million

The Roanoke Times reports here that the City of Roanoke has settled for more than $8 million the case of a woman who was injured when a city utility truck struck the motorcyle she was riding. Brent Brown was one of the lawyers for the plaintiff.

Embezzler from the homeless in Harrisonburg

According to this report, "[t]he former executive director of shelters for families in need was sentenced to one year of probation for using money intended for the homeless to buy beer and groceries for himself and food and litter for his cats." The defendant's former employer, Mercy House, "owns 12 apartments in Harrisonburg that serve as temporary housing for homeless families."

Mansoor First Amendment case against Albemarle County settled

The Daily Progress has this report on the settlement of a county police officer's First Amendment case against his employers. The case was the subject of this opinion by Judge Michael of the W.D. Va., denying in part the employers' motion for summary judgment.

That time of the year

Twenty years ago this month, I rode down (from Pennsylvania) to Charlottesville with my dad and all my stuff and moved into the Emmet dorm, met another future lawyer who would be my roommate for the next three years, and starting saying "Grounds" and "first-year" instead of "campus" and "freshman." As this item from the Cavalier Daily describes, it's happening all over again for a new bunch (of whom few or none were born in 1983).

It's good not to be a securities lawyer

I don't even those who have to deal with the new catch-22 described in this Washington Post article between the federal law requiring lawyers to describe misconduct of publicly-traded companies and state law that might punish them for revealing client secrets.

Judge Young of D. Mass. on decline of jury trials

Via Jurist's Paper Chase, the Boston Herald has this article on an open letter from Judge Young of the D. Mass. to his fellow judges addressing what he calls "the withering away'' of the nation's jury system, a development that he believes to be the "most profound change in our jurisprudence in the history of the Republic," and more or less chastizing the other judges for not being more excited about the issue.

Virginia lawyer's campaign against wetlands rules

The Virginian-Pilot has this story on the efforts of lawyer Douglas Kahle to contest implementation of state and federal environmental law regulating wetlands.

Political phenomena least likely to be understood by the NY Times

In this item, the NYT writes about that group known as the "NASCAR dads" (as opposed to the "soccer moms").

The article says: "Political consultants have no end of ways to slice and dice the always desirable uncommitted voter. Last time, she was a waitress. This year, he's rooting for Jeff Gordon." Not Jeff Gordon. Last year he came in third in this poll, behind Wild Bill from Dawsonville and Earnhardt, Jr.

Three-judge panel sustains sufficiency of notice in Big Stone Gap annexation case

As reported here in the Kingsport paper and here in the Bristol paper and here in the Coalfield Progress, the three judge panel of Judge Roush, Judge Alexander, and Judge Horne, has ruled that the Town of Big Stone Gap gave legally sufficient notice to begin its annexation effort, and therefore the annexation case can go forward, with a trial scheduled in November.

Judge Roush is best-known these days as the judge in the Malvo sniper case, while Judge Alexander has gotten some publicity for overruling the jury's death penalty verdict in a case without, in the view of some members of the public, offering a sufficient public statement of his reasons.

Fine-tuning employees' Weingarten rights

In Anheuser-Busch, Inc. v. NLRB, the Fourth Circuit in an opinion by Judge King, joined by Judge Widener, denied the employer's petition to review and granted the NLRB's petition for enforcement on a series of discrimination charges under section 8(a)(1) of the NLRA. Judge Shedd dissented in part, on the issue of whether the employee is entitled to a specific union representative in investigative interviews.

Senators Allen and Warner suggest 3 names to fill Judge Morgan's seat in E.D. Va.

Via Lawyer's Weekly, this story in the Richmond paper says that Senators Allen and Warner have submitted three names to President Buch for the vacancy in the Eastern District of Virginia: "James L. Chapman IV, who ran twice in the 1990s for the House of Representatives; Patricia L. West of Virginia Beach, whom Allen named secretary of public safety when he was governor; and Walter DeKalb Kelley Jr., a commissioner in chancery for the Norfolk Circuit Court."

More on filing Judge Murnaghan's seat on the 4th Circuit

Something else interesting from How Appealing was a link to this letter to the editor, published in the Washington Post, about how "Maryland and Virginia are about to go to war again" over the nomination of Claude Allen (who is not from Maryland) to fill the appeals court seat vacated by the death of Baltimore's own Francis Murnaghan.

The letter notes that President Bush chose well in his two district court nominees for Maryland, Richard Bennett and William Quarles, and suggests that the White House ought to find another Maryland Republican, but I thought that had already been tried and the Democrat senators refused to accept the names put forward.

What does a 4th Circuit panel do when prior panel decisions go both ways?

Judge Niemeyer's dissenting opinion in McMellon v. U.S. on how a later panel is to resolve apparent conflict between two earlier panel decisions has drawn some criticism from here from How Appealing and here from its readers.

The gist is whether the later panel can pick whichever rule it likes best, or must go with the first one. Howard Bashman thinks the best outcome would be for the case to be reheard en banc, which seems likely enough since the government was the loser in the case and the majority opinion by Judge Traxler might well be wrong on the merits of the "duty to warn" issue, regardless of how the sovereign immunity issue plays out.

More on constitutional offices

It came to my attention today, strangely enough, that there is a statutory procedure for a jurisdiction to abolish constitutional offices by referendum, Va. Code § 24.2-685.

More on judicial selection and the vacancy in Alexandria

This Lessig & Scanlon column in the Daily Press says that "Republicans from Southwest Virginia and Hampton Roads are trying to pick [Alexandria's] next circuit court judge. And, naturally, Democrats are upset," and quotes a Democrat delegate from Alexandria as saying "I would not presume to go to Virginia Beach or Smyth County to select judges."

The writers suggest that "[t]raditionally, judges are selected by local lawmakers. When Republicans took control they said they were keeping that system of local selection in place."

Apparently, the authors think it is an odd thing for Terry Kilgore, whom they describe as representing "a district that's wedged between Tennessee and Kentucky," to be involved in the selection of a state circuit court judge for an office so far away from the Cumberland Gap. I would think that this is no more odd than that Senator Schumer of New York or Senator Leahy from Vermont is involved in opposing federal circuit court judge nominees for courts in D.C. or Alabama or Texas.

Does Virginia still have too many constitutional offices?

In Virginia, each county and city has its own independently elected commonwealth's attorney, clerk of court, commissioner of revenue, treasurer, and sheriff. This commentary in the Daily Press says that's a waste.

My understanding is that when the Constitution of Virginia was last rewritten, about 20 years ago, there was an effort made to reduce further the number of constitutional officers but there was too much political resistance. (Some offices, like that of "constable," were eliminated.)

Could your dog do this?

The old dog at our house is part border collie, but I think she might get spooked by geese. This report has trained border collies keeping the geese on the run at a pond in Northern Virginia, and it makes me wonder what would Highland County's Donald McCaig think? (McCaig is the author of such books as Eminent Dogs, Dangerous Men.)

Speaker Howell as fund-raiser, tax reformer, commentator on the role of courts

Today's Washington Post has this story on the successful fundraising efforts of Delegate William Howell, the Speaker of the House of Delegates.

This week's Jeff Schapiro column in the Richmond paper focuses on the limitations on Howell and Governor Warner to make things happen on tax reform.

This article describing a conference of legislators says that Howell agreed that courts are infringing on the prerogatives of the legislatures, with the following quotes:

"It is 'one of the most fundamental concerns that we as legislators should have,' and it amounts to 'the taking away of our legislative powers,' said Virginia Delegate William J. Howell, speaker of the state House of Delegates. He addressed fellow lawmakers at the annual meeting of the American Legislative Exchange Council (ALEC) in Washington, D.C.

'We are finding more and more, in states all over the country, legislative actions are being overruled by the courts,' said Howell. 'As a result, we're seeing an explosion of litigation all across the country that is costing untold billions of dollars and is causing all sorts of havoc with...state budgets.'"

Congressman Goodlatte responds to criticism of his class action bill

Congressman Bob Goodlatte wrote this defense in Saturday's Roanoke paper of the class action reform bill he has sponsored, which would, among other things, expand federal jurisdiction over class actions involving non-diverse parties.

More on the reassignment of psychiatrist who tested Walton

The Roanoke Times has this article with more news on the state-employed psychiatrist who was reassigned after some dispute over the IQ testing of deathrow inmate Percy Walton, whose case is now pending before Chief Judge Samuel Wilson of the W.D. Va., who will decide whether Walton is fit to be executed.

The article notes the following: "Assistant Attorney General Robert Harris admitted in a federal court hearing last week in Roanoke that he was angry that General ordered the test so close to Walton's scheduled execution. And one of Walton's lawyers, Nash Bilisoly of Norfolk, suggested at the same hearing that Harris may have had something to do with General's reassignment."

Nothing like checking the charter

In Johnson City, the mayor got into a tiff with fellow members of city council over who can be on the city's Power Board, but now the advice of counsel after reading the City's Charter (as the Johnson City paper did) is that the city manager, rather than the mayor, gets to put forward names for the Power Board, according to this article in the Johnson City Press, which says:

"Citing Tennessee Code Annotated Section 7-52-108 — which says, “such chief executive officer shall also, with the consent of the governing body of the municipality, designate a member of such governing body,” — McKee [the lawyer] wrote in the letter that the mayor was the CEO of the city and was thus the only person who could bring up names for nomination to the Power Board.

But after an inquiry from the Press with the results revealed to the attorney, McKee said he has changed his opinion over who is actually the CEO of the city.

“I was clearly wrong,” McKee said this week of his declaration that the mayor was the CEO. “I did not review the (City) Charter.”

During a review of the City Code section of the charter outlining administration, the Press found the city manager is actually listed as the city’s CEO.

“The city manager shall be the chief executive officer of the city,” Section 2-60 of the city code reads."

First amendment rights of fortune tellers

The Kingsport paper argues here that the ACLU has "gone round the bend" in its lawsuit on behalf of a tarot card reader in Tennessee, claiming that a Tennessee town violated her First Amendment rights by putting her out of business.

The more things change . . .

In the last paragraph of The American Inquisition, the author notes that "[i]n ancien regime France, Cardinal Richelieu argued that for reasons of state 'urgent conjecture' must sometimes take the place of assured truth."

This struck me as quite like the much-ballyhooed reference by Paul Wolfowitz to "murky" intelligence about terrorism, in this Fox News interview.