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.

Dog update

Hey, fifty days after December 20, we got another dog today, via Petfinder from the Johnson County, Tennessee Humane Society in Mountain City. So far, so good.

If I haven't said it before, let me say special thanks to all of our friends who read this blog and sent me a card or a note or just put up with my telling about the last days of Chrissy. It would be a long list of people, and your kindness will not be forgotten.

Split decision on taking custody from DSS of child subject to foster care plan

In Lynchburg Division of Social Services v. Cook, the Virginia Court of Appeals in an opinion by Judge Humphreys joined by Judge Petty with Judge McClanahan dissenting reversed a circuit court order transferring custody of a child in foster care from Social Services to the child's grandparents, concluding that the circuit court was required to make specific findings about whether the circumstances of abuse that led to the taking of custody had been substantially corrected.

The opinion is interesting on the back and forth about statutory construction.

The question I have is why such an interesting opinion and perhaps even important opinion was not published.

Take the Orange Line to Wytheville

This image of the U.S. interstate highway system in the style of a subway map is pretty neat except for the bad spelling of the Southwest Virginia town where Interstates 77 and 81 meet.

On mandatory HPV vaccine

The Instapundit links here to this "Jane Galt" post and this Volokh post, both with many interesting comments, on the question of whether the new vaccine for human papillomavirus should be made mandatory.

More broadly, the Philadelphia Inquirer has this commentary on vaccines, and how the talk of a link between vaccination and autism is likely an urban myth.

On the other side, the Roanoke Times has this editorial, suggesting the HPV vaccine is mostly about corporate greed ("State legislators should not ignore that Merck stands to make billions in sales if Gardasil becomes mandatory across the country.").

They made this vaccine mandatory in Texas (by executive order that might get reversed by the legislature) and it is the subject of HB 2035, which passed the House 80-17 and as amended includes an opt-out provision, and SB 1230, which passed the Senate 40-0.

The language from the House amendment says: "After having reviewed materials describing the link between the human papillomavirus and cervical cancer approved for such use by the Board, a parent or guardian may elect, on an appropriate form prescribed by the Board, for his child not to receive the human papillomavirus vaccine."

Brief in every sense

From the Buchmeyer blog, here's the whole thing:

Brief in Opposition to Plaintiff's
Motion for Reinstatement
Plaintiff has got to be kidding.

Respectfully submitted,
Simpson & Moran
By Donald A. Van Sullehem
Attorneys for Defendant
Birmingham, Mich.

On the need for national broadband strategy

I meant to link before now to this article by Jim Baller on the need for a national broadband strategy.

What he says makes sense, but I just wish the Comcast "broadband" at my house worked at 4 MB, much less 70 MB. The night of the Super Bowl, it measured at 4K, which reminds that when I started at as a lawyer, our Westlaw connection was 2400.

Strange job interview with legislator for would-be judge

The Norfolk paper reports here on the strange report given by a lawyer who wanted to become a juvenile and domestic relations district court judge in Norfolk with a Republican member of the House of Delegates whom she says asked her questions about religion, abortion, politics, and feminism.

Evidently, the really important questions were omitted, like who's better, Cowboys or Redskins, Army or Navy, Beatles or Rolling Stones, and if she was a cup of gelato, what flavor would she be, and whether she planned to wear racing stripes on her robe like the late Chief Justice Rehnquist.

UPDATE: No, it was a senator, not a member of the House.

Two new vacancies in the Eastern District

Senator Warner has written to The Virginia Bar Association (and presumably other bar groups) that Judge Payne and Judge Ellis have written to President Bush expressing their intention to take senior status in April and May of this year, and so the Senator wanted "to advise you of these upcoming vacancies and to offer your
organization the opportunity to make suggestions of candidates for these important
positions" in Richmond and Alexandria.

The VBA has committees for the very purpose of thinking about candidates for the federal judiciary. The thing to do if you are such a candidate is to forward (hopefully by electronic means) such material about yourself as you would like for the VBA committe to consider to the Executive Director, Guy Tower, whose e-mail address is guytower(at)vba.org.

On the administration of the death penalty in Tennessee and elsewhere

This JURIST post has links to the executive order from Tennessee's Governor Bredesen postponing any Tennessee executions at least until May while a study is made of how the death penalty is administered.

On Friday, the Washington Post had this article, with comments from Governor Kaine questioning the need for new Virginia laws expanding the crimes for which the penalty of death may be sought. The article by Michael Shear begins: "Virginia Gov. Timothy M. Kaine, who ran for office pledging to enforce the death penalty despite his personal opposition, said he has strong reservations about efforts by the General Assembly to expand the crimes that are eligible for capital punishment."

Professor Berman has this interesting post on "the federalization of the death penalty."

On jurors asking questions

Like Ernie says, read the comments to this WSJ law blog post on juror questions.

Allowing jurors to ask questions is one of the recommendations of the Virginia jury task force.