Friday, January 04, 2008

Of Miner and Minor

After mulling it over for a few years, I have actually ordered a copy of The Minor Family of Virginia, listed on this page.

Since this book by John B. Minor was published in 1923, I don't know, however, whether I could use it to prove kinship to the Chicago lawyer named Judson Miner, who according to this article hired Barack Obama to his first job out of law school.

Fourth Circuit affirms denial of post-conviction relief in Winchester death penalty case

In Bell v. Kelly, the Fourth Circuit in a 19 page opinion by Judge Shedd, joined by Judges Niemeyer and Duncan, affirmed the decision by Chief Judge Jones of the W.D. Va. to deny the petition for habeas corpus of Edward N. Bell, who was sentenced to death in state court for the murder of a Winchester police sergeant in 1999.

Thursday, January 03, 2008

The legendary D'Antoni

From the Arizona Republic, here is a delightful profile of Lewis D'Antoni, still living in West Virginia at age 94, the father of the head coach (and assistant coach) of the Phoenix Suns.

The article says in part:

"Lewis D'Antoni, who turned 94 on New Year's Eve, is a legend in this small coal-mining town nestled among the Appalachians. His daughter, Kathy, an education official, recently gave a speech to the Rotary in nearby Bluefield, and upon conclusion she asked whether anyone had a question.

No one raised a hand, which Kathy found odd. Everyone understood everything perfectly?

Finally, an older gentleman raised his hand.

"You any relation to Lew D'Antoni?"

"Yes," Kathy said. "I'm his daughter."

"Well, I tell ya what," the man said, "if he was playing ball today, he'd be making $80 million a year. The best ballplayer ever to come out of here.""

That Rotary meeting sounds like a Bristol Lions club meeting I once attended, where the wife of one of the members gave a sincere but somewhat tremulous presentation about some charitable enterprise, then opened the floor for questions - all of which were about why a good looking woman like her married such a bum.

On Judge Wood

The Staunton paper has this report on the retirement of Augusta County Circuit Court Judge Thomas Wood, a good man and good judge, to my observation.

Last week's Virginia Court of Appeals opinion on questions presented

The en banc opinion in Moore v. Com. is about the appellant's lawyer citing the wrong legal standard in stating the questions presented under Rule 5A:12, and thereby failing to present a question using the right legal standard, with the result that the case was booted without a decision on the merits.

According to the dissent, the majority came up with this 5A:12 issue "for the first time sua sponte following argument on rehearing en banc." The panel decision did not address the sufficiency of the statement of the questions presented.

Judge Humphreys in his concurrence explained: "Some might suggest our disposition of this case is an overly technical application of our Rules. However, under the constitutional and statutory scheme under which we operate, we must decide cases based upon the issues appellants present to us, not the issues they might or should have presented. At both the trial and appellate level, our system of justice is inherently an adversarial system and the courts may not properly assume the role of an advocate for either party."

Judge Petty wrote that's all well and good, but the record is not as clear that the right legal standard was not raised: "While it is clear that appellant employed the irrelevant probable cause standard in his question presented, it is also clear that all parties involved in this case addressed the relevant standard of reasonable suspicion in arguing and deciding the case. . . . In his opening brief, appellant argued that the officer had neither probable cause nor reasonable suspicion to justify the stop. The Attorney General understood the issue, rephrased the question presented to state the correct constitutional standard, and went on to address it. In a published decision, a panel of this Court decided the case on the merits. Finally, we never asked appellant to address the issue at oral argument. Simply put, at no time prior to our decision did the form of the question presented raise any concern."

An interesting combination of dissenters, Elder, Felton, and Beales, were of the view that the lawyer's statement of the question was close enough to put before the Court the issue of whether the failure to suppress the disputed evidence was legal error, and that should be close enough.

The majority's decision reinforces the idea that clarity of expression is the essence of the lawyer's art. Even so, this decision strikes me as mostly wrong. It creates incentive to waste words in an effort to cover all bases. I wondered why a petition I got in a recent Virginia Supreme Court case had the same issue restated five different ways, but maybe now I know. Also, the sua sponte aspect is troubling - after multiple layers of briefing, argument, and decision, the appeal gets whacked on some new issue without a word of oral or written argument. There is something contradictory about a decision that says, on the one hand, the Court can only act on what the lawyers define as the question presented, yet on the other hand the Court can decide what is the question presented without considering the lawyers' views.

If the case goes to the next level, I wonder how the requirements of Rule 5:17(c) will be addressed. Opinions such as in Haugen v. Shenandoah Valley Dept. of Social Services, 645 S.E.2d 261 (Va. 2007) suggest some cause for optimism on this procedural issue, but there are others not so friendly. Somewhat surprisingly, there's not much about Rule 5:17 as the ancestor of 5A:12 in any of the four opinions.

The Federal courts have a somewhat similar rule in Rule 28(a)(5), but I'm not aware of any case where a federal appeals court has applied this rule to boot an appeal where the substantive argument was addressed in the body of the brief - not that Virginia's appeals courts much care about what other courts do. See generally Wright, Miller & Cooper, 16A Fed. Prac. & Proc. Juris.3d § 3974.1. I argued Rule 28 one time where the pro se appellant didn't put anything in his brief but references to the arguments made in the District Court, citing Northland Ins. Co. v. Stewart Title Guaranty Co., 327 F.3d 448 (6th Cir. 2003), in which the Sixth Circuit "joined the other circuits in concluding that the requirements of Rule 28 may not be satisfied by reference to court papers filed in the lower court." What did I get? An order from the Sixth Circuit directing the appellant to fix his brief.

Magistrate Judge Welsh recommends enforcing arbitration clause in title loan contract

In Reel v. Anderson Financial Services, LLC, Magistrate Judge Welsh of the W.D. Va. recommended that the District Court should grant the defendant's motion to compel arbitration, rejecting the plaintiff's argument that the arbitration clause in the contract, a "Motor Vehicle Line of Credit" was unenforceable. Among other things, the judge concluded that the plaintiff could not show that the arbitration clause was unconscionable. The analysis is consistent with, although in some ways dissimilar, from the reasoning in the recent Third Circuit case applying Virginia law in somewhat similar circumstances.

Wednesday, January 02, 2008

On Virginia v. Moore

Later this month, the Supreme Court will hear oral argument in the case of Virginia v. Moore, about Tom Goldstein has this post with links to the briefs of the Commonwealth and the respondent. The brief for the U.S. is here, the brief for the ABA is here, the brief for the VTLA is here.

In this case, the defendant Moore was arrested, instead of being given a summons, under circumstances where Virginia law requires that he be given a summons, and so the issue is whether for purposes of the Fourth Amendment the search incident to his unlawful but not unconstitutional arrest was unreasonable and the evidence obtained subject to exclusion.

The en banc Virginia Court of Appeals by 7-4 vote said the evidence was in, the Virginia Supreme Court said it was out.

It is an interesting area, the relationship between the guarantees of the Bill of Rights and state law. We know that in the area of property rights, state law defines whose property is whose, but federal law defines what process is due in connection with deprivations of property. State law defines what the crimes are, but federal law defines what is an unreasonable seizure in connection with persons suspected of committing state law crimes. Doesn't it?

Suppose the General Assembly takes an interest in this case and decides to amend the arrest statute, so it allows an arrest instead of a summons whenever there has been a misdemeanor committed in the officer's presence and he feels like conducting a search. Can constitutional rights be altered in so crude a fashion? I wonder.

On personal knowledge

I read this article about the late D.C. lawyer William Hundley, including this quote regarding Monica Lewinsky:

“She’s no Marilyn Monroe, and I knew Marilyn Monroe.”

Of Brownlee and Giuliani

The New York Times has this article that talks of Rudolph Giuliani's efforts to intervene with W.D. Va. U.S. Attorney John Brownlee, on behalf of Giuliani's then-client Purdue Pharma, manufacturer of OxyContin:

"They figured Mr. Brownlee, a younger federal prosecutor, would look up to Mr. Giuliani, who became a legend as a United States attorney in New York.

Between June and October 2006, Mr. Giuliani met or spoke with the prosecutor on six occasions. During those conversations, Mr. Giuliani was cordial but pointed in arguing against what he felt were flaws in the case.

Mr. Brownlee would not change course, though, even when the Purdue legal team appealed, unsuccessfully, at the 11th hour to his superiors at the Justice Department in Washington.

In October 2006, Mr. Brownlee told Mr. Giuliani and Purdue that he expected to ask for a grand jury indictment by the end of the month. Plea discussions ensued and Mr. Brownlee ultimately agreed that the three executives would not have to do jail time."

The article also cites Tazewell County Commonwealth's Attorney Dennis Lee: "Dennis Lee, the Virginia state prosecutor for Tazewell County, an area hard hit by OxyContin abuse, said he was stunned several years ago to learn that Mr. Giuliani was working for Purdue. He had a favorable impression of Mr. Giuliani, he said, and a poor opinion of the company, which he said had played down and dissembled about its drug’s problem."

PointofLaw has this post, which explains part of the context of the criminal investigation, suggesting that the government holds all the cards in this area even more than usual.

Monday, December 31, 2007

Three books I'd like to check out

A U.Va. law grad named Kris B. Shepard has written a book called Rationing Justice: Poverty Lawyers and Poor People in the Deep South. The Daily Report has this review, which says in part: "Shepard uses the very different histories of the two largest programs in the region, the Atlanta Legal Aid Society and North Mississippi Rural Legal Services, to shed light on the diverse currents of the poverty law movement in the Deep South. The nascent Mississippi program was rural with significant African-American leadership and a strong civil rights focus, while the longstanding Atlanta program was mostly white, supported by the local legal establishment and focused on urban issues such as substandard public housing and predatory lending." The U.Va. Lawyer also has a review here.

Over the weekend, I saw the Booknotes segment on Senator Sam Ervin, Last of the Founding Fathers, by Karl E. Campbell of Appalachian State, which has this page about the book. I guess I've got a soft spot for white-haired self-made story-telling Constitutional law experts from the rural South, or at least some of them, at least the ones from places that are west of what is now Interstate 77.

In today's Bristol paper, in the Bucky column of all places, is retold the tale behind the book The Blind Side: Evolution of a Game, which among other things tells of Michael Oher, now a scholarship offensive lineman at Ole Miss. This sounds to me like a book that doesn't just belong in the sports pages.

On Doe v. Chao, Opinion No. VII

In Doe v. Chao, the Fourth Circuit in an opinion by Judge Wilkinson held that Judge Williams of the W.D. Va. in his latest opinion (Doe VI) strayed beyond the mandate from the Fourth Circuit following its latest opinion (Doe V) reversing the post-remand decision by the District Court (Doe IV) in this long-running Privacy Act case that was the subject of an earlier Supreme Court opinion (Doe III) that affirmed the first Fourth Circuit opinion (Doe II) that reversed the District Court's opinion (Doe I).

Judge Wilkinson observed: "Even litigation spawning multiple Roman numeral suffixes must come to an end."