Friday, October 17, 2003

The cost of free lawyers

It says here that Virginia spent $57 million on court-appointed counsel for criminal defendants in 2002.

Norfolk lawyer Walter Kelley nominated for the E.D. Va.

One of the few Tidewater lawyers I met (however briefly) while I was in law school at William & Mary and can remember to this day is Walter Kelley, who has been nominated to be a U.S. District Court judge for the Eastern District of Virginia, according to this report.

Scott County prosecutor declines ESPN interview on football team hazing incident

Interim Commonwealth's attorney Marcus McClung in Scott County is refusing to talk to ESPN about the football team hazing incident from Rye Cove, concluding that it would add to the suffering of the victims to have their stories told on national television, according to this report in the Kingsport paper (registration required).

The article quotes Mr. McClung as saying the following:

"Marcus McClung said Thursday that he has spoken with officials at ESPN, the 24-hour sports cable network, but their requests for an interview from his office about the June 16 incident have been refused.

"It's not that we are trying to be rude to ESPN or hate ESPN or any other national media (source). This is a policy issue that my office is taking,'' said McClung.

"It just doesn't seem right to do (an interview) and blow this issue up any more than it is now. To think that this issue would not be reported on given the facts would be incorrect. But to further expand upon events to a national audience, I think, is not acceptable because the victims are trying to get on with their lives,'' he said."

Unrelated to matters of law enforcement, I'm sure Marcus would be glad to hear talk on ESPN about another McClung, Seth McClung, a major league baseball pitcher with the Tampa Bay Devil Rays. I think Seth and Marcus are brothers. The last I heard, Seth was injured and did not play the last part of the season. ESPN says here that Seth pitched 38 and 3/2 innings for Tampa in 2003, with a 4-1 record and 25 strikeouts.

Thursday, October 16, 2003

States lobbying for end to bar on taxing Internet access

The Washington Post reports here on increased state lobbying of Congress for the right to tax access to the Internet, an issue not to be confused with collecting sales tax on items sold over the Internet.

Wise County files for rehearing in landfill fee case, administrator moves to dismiss civil rights claim

In these reports from the Coalfield Progress, here it says that Wise County has filed a petition for rehearing of the Virginia Supreme Court's decision in the landfill fee case, and here it says that the Wise County administrator has filed a motion to dismiss based on qualified immunity and failure to state a claim, in the federal civil rights suit brought by a woman who was criminally prosecuted for failure to pay the landfill fee before it was declared unconstitutional.

Moonshine in Fairfax County

In Fairfax County, they've got Bloomingdale's, Saks Fifth Avenue, Nordstrom's, and the latest offering sale, illegal home-brewed whiskey, according to this Washington Post article.

New theory in suit over inmate death at Wallens Ridge prison

According to this Roanoke Times report, the plaintiffs in a lawsuit over the death of an inmate at Wallens Ridge are now making the additional claim that "an automatic external defibrillator that would have saved the inmate's life was not used to revive him."

U.S. attorney for W.D. Va. speaks to county board against methadone clinic

This Roanoke Times article says that the W.D. Va.'s U.S. attorney, John Brownlee, spoke against allowing a methadone clinic to be located in Roanoke County, even though he had to admit there were no problems with crime in the areas of other methadone clinics in Southwest Virginia.

From what little I know of it, methadone treatment is sort of like probation, only those with a high-level of discipline can pull it off, and the people with the problem are often going to fail.

Viewpoints not unlike my own regarding the law schools vs. DOD

This column from the Yale Daily News says law schools who want to keep military recruiters off-campus are phony Free Speech advocates, repressing the views of both recruiters and those who might want to be recruited, and cites the words of Justice Brandeis, that "the remedy to be applied is more speech, not enforced silence."

Wednesday, October 15, 2003

Federal judgeship news - Urbanski as magistrate judge, while senators riled over 4th Circuit pick

Two stories via VLW - first, as reported here in the Roanoke Times, Mike Urbanski of the Woods Rogers firm in Roanoke, a commercial litigator and anti-trust expert, has been selected by the judges of the Western District of Virginia as the new magistrate judge to succeed Judge Glen Conrad. Second, the Richmond paper has this incredible story about opposition and snafus in connection with the nomination of William Haynes for the Fourth Circuit seat made vacant by the senior status of Judge H. Emory Widener, Jr.

Big chicken

The Roanoke Times has this article on the debate (or lack thereof) about who's the "Big Chicken" in the race between one of the Emicks and Morgan Griffith - and it has nothing to do with Hardees, the only place I would expect to see a Big Chicken.

Supreme Court says no to Hanover County wastewater case

According to this report, the U.S. Supreme Court has denied the petition for certiorari filed by landowners who brought suit against Hanover County, Virginia, regarding the construction of a wastewater treatment plant. In the Fourth Circuit, the district court's ruling for the landowners was reversed in favor of the County. The article notes that another form of the same litigation is still alive in the Circuit Court for the City of Richmond.

Bummed out in Southwest Virginia

In the Virginia Tech student newspaper, this report mentions, among other things, a state statistic which says that "residents of Southwest Virginia were 50 percent more likely to commit suicide than any other part of the commonwealth."

Virginia Tech still paying for suing the ACC and other Big East support

This article says that Va. Tech just got a bill of $229,657 as its share of the legal fees and costs while it was a plaintiff in the Big East vs. ACC lawsuit. In addition, Tech may continue to pay the Big East some of the other membership fees it would have owed if it stayed a Big East member.

Harmless error in baseball and law

From Findlaw, Michael Dorf in this article compares the like notions of "harmless error" in the rules of baseball and the common law.

Somehow, I doubt this will achieve the cult status of the "The Common Law Origins of the Infield Fly Rule," 123 U. Pa. L. Rev. 1474 (1974), the best-known law and baseball work known to law review nerds everywhere but unfortunately not (according to Ernie) available online.

Tuesday, October 14, 2003

The Amway-P&G feud leads to ruling on privilege to republish court documents on the Internet

In Amway Corp. v. Procter & Gamble Co., the Sixth Circuit in an opinion by Judge Batchelder, joined by Judge Clay, and with District Judge Schwarzer concurring separately, held that under Michigan's statutory "fair reporting privilege," Procter & Gamble and its law firm, Cincinnati-based Dinsmore & Shohl, could not be liable for the posting of the text of pleadings on the Internet of complaints filed in court with allegations against Amway.

The memorable opinion begins: "Recitation of the extensive and hate-filled history between P&G(1) and Amway(2) would take a writing as long as both the Old and New Testaments and involve at least one of the Good Book’s more prominent players. Although each side would likely argue, if given the chance, that its opponent was in the garden advising the serpent when Eve took her first bite of the apple, for our purposes we need only go back to the 1970s and Satan’s rumored more recent activity with and interest in soap products."

Two new law schools in Western North Carolina?

Via, this story from MSNBC reports that there both Elon University and UNC-Charlotte are working on plans for new law schools.

In recent months, there has been news about a new law school in Lynchburg, Virginia, and another in South Carolina, now these two in North Caroline. Maybe the founders of the Appalachian School of Law in Grundy were ahead of the curve.

Monday, October 13, 2003

John Edwards in Bristol today

I got some notices that U.S. Senator, former trial lawyer, and current presidential candidate John Edwards is in downtown Bristol today for some kind of rally in the park down the street by the courthouse, starting in about at 11:30 am. Perhaps this was sent to me because of my membership in the Virginia Trial Lawyers Association. (Unlike ATLA, VTLA does not require as a condition of membership that the applicant is only a plaintiff's lawyer.) The only other Democrat running for president who made an appearance this year in Southwest Virginia was Bob Graham, who since quit the race. North Carolina is not far from here but I doubt that John Edwards is very well-known in this area.

"No Child Left Behind" as potential political liability for President Bush

Today's Washington Post has this article which begins, "President Bush's No Child Left Behind education program -- acclaimed as a policy and political breakthrough by the Republicans in January 2002 -- is threatening to backfire on Bush and his party in the 2004 elections," and explains that "Bush is being criticized in swing states such as West Virginia for not adequately funding programs to help administrators and teachers meet the new, and critics say unreasonable, standards."

In Virginia, the fat will hit the fire this coming spring for graduation standards, when the Standards of Learning require tests to be passed for graduation. Last week, it was reported that the New York education authorities were lowering the standards on the mandatory tests for graduation, according to this NY Times article, titled "New York to Lower the Bar for High School Graduation," and which begins "New York State's education commissioner, Richard P. Mills, said Wednesday that the state would loosen the demanding testing requirements it has imposed for high school graduation in recent years, including the standards used to judge math proficiency."

Sunday, October 12, 2003

"The ACC can run but it cannot hide"

Rule of Reason has this post on the dismissal for lack of personal jurisdiction of the NC-based Atlantic Coast Conference from the Big East lawsuit filed in a Connecticut state court, after which ruling the Connecticut Attorney General Blumenthal declared, ""The ACC can run but it cannot hide."

Still more on law schools suing over military recruiters tied to federal money

The Curmudgeonly Clerk caught my ramblings on this subject, and wrote even more on the subject in this interesting post, which among other things describes the lengthy disclaimer one law school is using to comply with the law under protest.

How will they distinguish the Agricultural Adjustment Act case from 1942?

In Wickard v. Fillburn, 317 U.S. 111 (1942), the Supreme Court held that a farmer who grew wheat for his own consumption (more or less) was nevertheless engaged in interstate commerce enough to fall legitimately within the scope of the Agricultural Adjustment Act.

Now, some lawyers in California are arguing that Congress does not the power to regulate marijuana grown for intrastate consumption, according this report, via CrimLaw.

Virginia criminal laws to be revamped

Via CrimLaw, this AP article reports on the efforts of Virginia's Crime Commission to revamp the criminal law in Virginia.

Wahoo on the Eleventh Circuit

This month's Twenty Questions on How Appealing features Judge Stanley F. Birch, Jr., of the U.S Court of Appeals for the Eleventh Circuit, who says (among many, more profound things) that he follows the fortunes of the Virginia Cavaliers.

Proud to make the honor roll, sad to see your blog go

As Ernie Svenson describes in more detail here, the author of ethicalEsq? is giving up his blog. The background on David Giacalone and his blog are here.

David is someone who has read and thought and written about some of the weird stuff on this blog, and I'm sad and proud that among his parting shots, he listed this blog on the ethicalEsq? "honor roll."

Jet ski case to be reheard, Bashman will be watching

As described here in this Howard Bashman post, the Fourth Circuit will rehear en banc the case of the jet skiier who went over the Robert Byrd dam.

Judge Niemeyer's dissent sparked a debate among Bashman readers, described here, on the issue of how to resolve conflicting lines of precedent from within the same circuit.

Coaches sue parent for defamation

Here is the Virginian-Pilot's version of the story about the three basketball coaches who have brought suit against the father of one of their players for defamation, after he has criticized them repeatedly to the School Board and threatened to sue the Board if the coaches were not fired.

As you might expect, the case caught the attention of Overlawyered, as shown here.

Newport News police cars missing an ''i'' in ''Virginia''

The headline says it all in this story about police cars with decals that say "Virgina."

The "tan man" used by the FBI for the evidence on Richmond city council member

Mark Holmberg has this column on the wild character used by the FBI to record evidence against Richmond political figures now facing prosecution in the E.D. Va.

Appalachian Regional Commission conference on telecommunications in Abingdon this week

As described here, this week Abingdon's Southwestern Virginia Higher Education Center will be the site for the annual conference of the Appalachian Regional Commission, with a focus on the role of telecommunications in the development of the Appalachian Region, which in Virginia includes (according to the government) the Counties of Alleghany, Bath, Bland, Botetourt, Buchanan, Carroll, Craig, Dickenson, Floyd, Giles, Grayson, Highland, Lee, Montgomery, Pulaski, Rockbridge, Russell, Scott, Smyth, Tazewell, Washington, Wise, and Wythe, and the Cities of Bristol, Buena Vista, Covington, Galax, Lexington, Norton, and Radford.

Tennessee man nabbed by Nigerian scam

The Kingsport paper (registration required) has this article describing how a man lost $6,300 in a version of the Nigerian scam.

The man posted an ad to sell his dog for $2,500. He was contacted by someone from Nigeria, who said that the man would be sent a cashier's check for $6,300 from someone who owed the Nigerian money, out of which the man could keep the money for the dog and send the rest back to Nigeria. At the last minute, the Nigerian wrote that the dog could not be shipped to Nigeria because of customs restrictions, and that the man should send on the rest of the money. The cashier's check turned out to be counterfeit.

A law enforcement officer quoted in the article said "be wary of anything from Nigeria."

As I recall, it is written in this book that scam artist Martin Frankel is among those who have been taken in by some version of a Nigerian scam. The book about Frankel is a great book.

More on the Commonwealth's Attorney race in Wise County

This article in the Bristol paper about the race for the position of Commonwealth's Attorney for Wise County raises the issue about why one of the candidates lost her job as an assistant Commonwealth's Attorney. Democrat Karen Bishop's old boss, Republican Joe Carico, says that she was fired after he found out she had filed motion to expunge the criminal record of drug dealer. Republican Chad Dotson has declared that he is the only candidate who has "never attempted to expunge the record of a convicted drug dealer."

In the article, Dotson also mentioned his daughter Reagan, whom I understand was named for Ronald Wilson Reagan, and not for King Lear's daughter - and thus I predict she won't have sisters named Cordelia and Goneril. (Anyhow, Shakespeare spelled it "Regan," and I have no doubt that young Reagan is of an entirely different character than the middle daughter of the play.)

Loser's appeal no bar to award of costs

In Singleton v. Virginia Department of Correctional Education, Judge Jones ruled that the pendency of the plaintiff's appeal was no bar to going forward with an award on the defendants' bill of costs.

Maybe the defendants would be willing to drop their claim for costs if the plaintiff would drop her appeal.

Judge Jones sets aside defaults in DirecTV cases

In DirecTV v. Adkins, Judge Jones of the W.D. Va. granted the motions of some of the defendants in one of the Virginia DirecTV suits relief from their default under Rule 55. The defendants were represented by Carl McAfee from Norton. The judge mentioned in a footnote that more that 8,700 defendants have been sued across the country by DirecTV. For earlier posts about this litigation, see here and here.

Link observed between choice of medical school and malpractice claims

Via the VTLA Eclips, graduates from some medical schools are more often sued for malpractice than graduates of other schools, according to this report.

Perhaps this will be a new consideration in the U.S. News review of schools - how often do the grads get sued.

Library rule requiring patrons to wear shoes pass constitutional muster

In Neinast v. Board of Trustees of the Columbus Metropolitan Library, the Sixth Circuit in an opinion by Judge Julia Smith Gibbons decided that the plaintiff, who "was asked to leave the Library for failure to comply with the Library’s requirement that patrons wear shoes while on its premises," had not suffered any violation of his constitutional rights, holding that "[t]he Library regulation survives rational basis review because the regulation provides a rational means to further the legitimate government interests of protecting public health and safety and protecting the Library’s economic well-being by seeking to prevent tort claims brought by library patrons who were injured because they were barefoot."

As Sneaking Suspicions points out here, however, who would have thought that what might you walk on around a library would be so nasty?

State enjoined from regulating voice-over-IP

Via Findlaw, this AP article says that a federal court has entered an injunction prohibiting the State of Minnesota from regulating voice-over-IP provider Vonage like a regular telephone company. The article notes that Vonage "advertises unlimited calls to anywhere within the United States and Canada for $39.99 per month."

VoIP is one of those things that I wonder whether the regular phone companies will either jump on the bandwagon or figure out how to suppress it or both. A consultant in this NY Times story from October 12 is quoted as saying, "VoIP is going to change everything," while another says that "The big telecom companies worry that VoIP could completely undermine their business within 12 months." A fellow I know in Bristol told me the other day that his office has voice-over-IP. It won't work when the server is down, but then I generally start thinking about going out to hit some golf balls when the server is down, anyway.

The Times article explains what is VoIP: "With VoIP, when someone speaks into the telephone, or microphone, the sounds are broken down into ones and zeros, sorted into packets of information, and then shot across the worldwide network of fiber lines, just like e-mail messages. At the designated end points, the packets of binary code are reassembled and turned back into sounds. In the regular phone network, calls initially pass over less efficient copper wires and the phone companies must maintain dedicated connections between users, instead of just mixing the information in with the rest of the Internet."

The Times article goes on to say, regarding the phone companies' response: "On the one hand, they are rapidly building the technology into their own offerings. MCI expects to have made a complete transition to VoIP by 2005. AT&T will offer a major digital voice service to businesses in 2004 and has begun a consumer pilot program, based mainly in New Jersey.

On the other hand, the regional Bell companies are arguing for new regulations that would tie up VoIP companies that let consumers make calls to customers on the regular phone network, as Skype hopes to do soon.

According to critics, VoIP companies receive an unfair advantage because the F.C.C. and state governments regulate them as information, not phone, companies because they rely completely on the Internet. That frees them from multiple tax and regulatory commitments, like directly paying into the federal "universal service fund" that subsidizes rural telephone access. Some state governments are considering that issue; in Minnesota last week, a federal judge overruled a decision by the state's Public Utilities Commission to force Vonage and other VoIP companies to submit to the state's traditional phone regulations. The F.C.C. and Congress will almost certainly take up the issue soon, too."

On strict scrutiny and grandparents' visitation rights

I don't know anything about domestic relations law, but one recurring question I get from a few people is what are the visitation rights of grandparents. Via Findlaw, in this opinion, the Iowa Supreme Court declared the state's grandparents' visitation rights statute unconsitutional, as the statute was not drawn narrowly enough to pass muster as an infringement on a fundamental right.

New tenant comes back from vacation, all her stuff has been sold

Yesterday's Roanoke paper had this article on travails of a young woman who moved all her possessions into her new apartment and went on vacation for a month, only to find on her return that the landlord sold all the stuff for $150, thinking it was leftovers from the prior tenant.

I guess these were bona fide purchasers, if this was a U.C.C. case.

Trying to move another "terrorist" case to the 4th Circuit

This column from the Village Voice mentions that the Department of Justice is trying to get the Jose Padilla case transferred from the Second Circuit to the Fourth Circuit:

"Ashcroft's Justice Department is striving mightily to persuade the Second Circuit that the case should be transferred to the Fourth Circuit Court of Appeals in Virginia, on jurisdictional grounds. Regarded by many lawyers, as well as civil libertarians, as the most conservative of all the circuit courts (which are just one level beneath the Supreme Court), the Fourth Circuit has already bowed to the president in the case of Yaser Hamdi. He is another American citizen being held indefinitely, without charges, and without access to his lawyer in a military brig. The Fourth Circuit has ruled that commander in chief Bush has the power to haul away an American citizen anywhere—at O'Hare, in Afghanistan, or on any American street. All Bush has to do is call him or her an 'enemy combatant.'"

Expert on the smells of the '60s testifies at trial of Dr. Knox

In this update on the trial of Dr. Cecil Knox in the W.D. Va. in Roanoke, one witness is reported as saying that "she certainly would know the smell of pot because she's 'from the '60s.'"

The article on the trial also reported on the voodoo bear and the dead squirrel:

"The stuffed brown bear bearing a flag with the first name of federal prosecutor Rusty Fitzgerald made its appearance during the early weeks of the trial. It was seized during a raid at Knox's practice, Southwest Virginia Physical Medicine and Rehabilitation, in February 2002. Fitzgerald introduced the bear as evidence in the early weeks.

Fitzgerald questioned former practice employee Tiffany Durham about the stuffed animal, which also had pins sticking in it and a target drawn on its head. Durham testified that the daughter of another former employee of the practice wrote his name on the flag. (The daughter was not charged in the case.)

Chief U.S. District Judge Samuel Wilson interjected.

"You didn't think you were doing Mr. Fitzgerald any harm by sticking pins in the stuffed animal?" Wilson asked.

Durham replied that she didn't think she was doing any harm. Fitzgerald was sick one day, but no link to the stuffed bear was ever established.

The squirrel carcass

Former practice employee Donna Stone first raised the specter of the dead squirrel in Knox's office. Durham later confirmed the report of the dead squirrel in Knox's office and elaborated on its demise.

She said she followed the smell to Knox's office, where the squirrel must have crawled up into one of the arms of a sweater that was lying on the couch.

Durham thought that at some point, someone must have mistakenly sat on the squirrel and squashed it. The squirrel remained in the sweater arm until Durham discovered it.

During a break in proceedings days later, lawyers from both sides of the case acknowledged that squatting squirrels are an underreported menace."

Criminal records don't deter Buchanan County candidates

The Roanoke paper reports here on the Board of Supervisors races in Buchanan County, where two of the candidates have convictions for misappropriation of public funds.