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6/22/09 6:38 AM Big Class Actions Against the Feds May FalterThe National Law JournalA case quietly winding through the federal courts in Washington could dramatically change the rules for plaintiffs across the country who file big-money class actions against the federal government. Pending and future class actions may be chopped down to size if the Federal Circuit agrees with the Justice Department's strict interpretation of a six-year statute of limitations. Plaintiffs lawyers who handle such cases have issued dire warnings. 6/19/09 12:40 AM
Kansas City Star
WASHINGTON | The Supreme Court ruled Thursday that prisoners have no constitutional right to DNA testing that might prove their innocence long after their convictions. The court’s conservative majority prevailed 5-4 in a ruling that could be limited because 47 states and the federal government already allow DNA testing in some circumstances.
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This is perhaps one of the most disgusting and lowest moments of Chief Justice Roberts' war on the Bill of Rights. The notion that a defendant, at his own expense, should be denied access to the very piece of evidence that might exonerate him, is so reprehensible as to be indefensible,. The fact that we have five justices on the same page is the best argument to get more justices who actually understand the spirit of the constitution and individual liberty on the court.
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Here's the opinion:
Read: [Full Opinion] [ Concurrence] [ Dissent 1] [ Dissent 2]
DISTRICT ATTORNEY'S OFFICE FOR THE THIRD
JUDICIAL DISTRICT et al. v. OSBORNE
certiorari to the united states court of appeals for the ninth circuit
No. 08-6. Argued March 2, 2009--Decided June 18, 2009
Respondent Osborne was convicted of sexual assault and other crimes in state court. Years later, he filed this suit under 42 U. S. C. §1983, claiming he had a due process right to access the evidence used against him in order to subject it to DNA testing at his own expense. The Federal District Court first dismissed his claim under Heck v. Humphrey, 512 U. S. 477, holding that Osborne must proceed in habeas because he sought to set the stage for an attack on his conviction. The Ninth Circuit reversed, concluding that §1983 was the proper vehicle for Osborne's claims. On remand, the District Court granted Osborne summary judgment, concluding that he had a limited constitutional right to the new testing under the unique and specific facts presented, i.e., that such testing had been unavailable at trial, that it could be accomplished at almost no cost to the State, and that the results were likely to be material. The Ninth Circuit affirmed, relying on the prosecutorial duty to disclose exculpatory evidence under, e.g., Brady v. Maryland, 373 U. S. 83.
Held: Assuming Osborne's claims can be pursued using §1983, he has no constitutional right to obtain postconviction access to the State's evidence for DNA testing. Pp. 8-21.
(a) DNA testing has an unparalleled ability both to exonerate the wrongly convicted and to identify the guilty. The availability of new DNA testing technologies, however, cannot mean that every criminal conviction, or even every criminal conviction involving biological evidence, is suddenly in doubt. The task of establishing rules to harness DNA's power to prove innocence without unnecessarily overthrowing the established criminal justice system belongs primarily to the legislature. See Washington v. Glucksberg, 521 U. S. 702, 719. Forty-six States and the Federal Government have already enacted statutes dealing specifically with access to evidence for DNA testing. These laws recognize the value of DNA testing but also the need for conditions on accessing the State's evidence. Alaska is one of a handful of States yet to enact specific DNA testing legislation, but Alaska courts are addressing how to apply existing discovery and postconviction relief laws to this novel technology. Pp. 8-11.
(b) The Court assumes without deciding that the Ninth Circuit was correct that Heck does not bar Osborne's §1983 claim. That claim can be rejected without resolving the proper application of Heck. Pp. 12-13.
(c) The Ninth Circuit erred in finding a due process violation. Pp. 13-21.
(i) While Osborne does have a liberty interest in pursuing the postconviction relief granted by the State, the Ninth Circuit erred in extending the Brady right of pretrial disclosure to the postconviction context. Osborne has already been found guilty and therefore has only a limited liberty interest in postconviction relief. See, e.g., Herrera v. Collins, 506 U. S. 390, 399. Instead of the Brady inquiry, the question is whether consideration of Osborne's claim within the framework of the State's postconviction relief procedures "offends some [fundamental] principle of justice" or "transgresses any recognized principle of fundamental fairness in operation." Medina v. California, 505 U. S. 437, 446, 448. Federal courts may upset a State's postconviction relief procedures only if they are fundamentally inadequate to vindicate the substantive rights provided.
There is nothing inadequate about Alaska's postconviction relief procedures in general or its methods for applying those procedures to persons seeking access to evidence for DNA testing. The State provides a substantive right to be released on a sufficiently compelling showing of new evidence that establishes innocence. It also provides for discovery in postconviction proceedings, and has--through judicial decision--specified that such discovery is available to those seeking access to evidence for DNA testing. These procedures are similar to those provided by federal law and the laws of other States, and they satisfy due process. The same is true for Osborne's reliance on a claimed federal right to be released upon proof of "actual innocence." Even assuming such a right exists, which the Court has not decided and does not decide, there is no due process problem, given the procedures available to access evidence for DNA testing. Pp. 13-18.
(ii) The Court rejects Osborne's invitation to recognize a freestanding, substantive due process right to DNA evidence untethered from the liberty interests he hopes to vindicate with it. In the circumstances of this case, there is no such right. Generally, the Court is "reluctant to expand the concept of substantive due process because guideposts for responsible decisionmaking in this unchartered area are scarce and open-ended." Collins v. Harker Heights, 503 U. S. 115, 125. There is no long history of a right of access to state evidence for DNA testing that might prove innocence. "The mere novelty of such a claim is reason enough to doubt that 'substantive due process' sustains it." Reno v. Flores, 507 U. S. 292, 303. Moreover, to suddenly constitutionalize this area would short-circuit what has been a prompt and considered legislative response by Congress and the States. It would shift to the Federal Judiciary responsibility for devising rules governing DNA access and creating a new constitutional code of procedures to answer the myriad questions that would arise. There is no reason to suppose that federal courts' answers to those questions will be any better than those of state courts and legislatures, and good reason to suspect the opposite. See, e.g., Collins, supra, at 125. Pp. 19-21.
521 F. 3d 1118, reversed and remanded.
Roberts, C. J., delivered the opinion of the Court, in which Scalia, Kennedy, Thomas, and Alito, JJ., joined. Alito, J., filed a concurring opinion, in which Kennedy, J., joined, and in which Thomas, J., joined as to Part II. Stevens, J., filed a dissenting opinion, in which Ginsburg and Breyer, JJ., joined, and in which Souter, J., joined as to Part I. Souter, J., filed a dissenting opinion. 6/18/09 8:00 AM Federal Judge Mulls Copyright Status for Salinger's Holden CaulfieldNew York Law JournalA federal judge on Wednesday said she had "serious" doubts about whether a purported meditation on the relationship between author J.D. Salinger and his creation Holden Caulfield is a fair use of material from Salinger's classic novel "The Catcher in the Rye." Southern District of New York Judge Deborah A. Batts ended the hearing by blocking publication of "60 Years Later: Coming Through the Rye" for 10 days while she ponders the issues, including whether purely literary characters can be copyrighted. 6/15/09 6:42 AM Plaintiff Suits Against Automakers Stall OutThe National Law JournalAs Chrysler and GM dispose of billions of dollars in assets and debts, there are potentially thousands of death and injury claims that either will be out of luck or will face near insurmountable obstacles to success. When both auto companies emerge from bankruptcy, they are expected, as in the terms of Chrysler's sale to Fiat, to do so "free and clear" of all pending and future claims and interests in all property sold pre-bankruptcy. 6/12/09 4:58 AM N.Y. High Court Finds Attorney's Unsolicited Faxes Did Not Violate Communications ActNew York Law JournalUnsolicited faxes distributed by a lawyer specializing in attorney malpractice cases were basically informational, not promotional, and did not violate federal laws and rules against improper solicitations, the New York Court of Appeals ruled Thursday, reversing an appeals court finding that Andrew Lavoott Bluestone's faxes "indirectly proposed a commercial transaction." Bluestone's attorney said the ruling establishes that lawyers "have a First Amendment right to speech instead of being branded as advertisers." 6/8/09 2:56 PM Supreme Court Issues Landmark Ruling on Judicial Recusal
The National Law Journal
In a landmark ruling that could affect state judicial elections nationwide, the Supreme Court on Monday ruled that due process requires a state judge to recuse when a party in a case before him or her has had a "significant or disproportionate" influence on placing the judge on the court through a large campaign donation.
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Very distressing is that four justices, in dissent, essentially think it's okay to in effect bribe judges via campaign donations. Those four are Alito, Roberts, Scalia and Thomas. Their lack of ethical standards on this issue is appalling. The other five justices got it exactly right.
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CAPERTON v. A. T. MASSEY COAL CO. (No. 08-22)
Web-accessible at:
http://www.law.cornell.edu/supct/html/08-22.ZS.html
Argued: March 3, 2009 -- Decided: June 8, 2009
Opinion author: Kennedy
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After a West Virginia jury found respondents, a coal company
and its affiliates (hereinafter Massey), liable for fraudulent
misrepresentation, concealment, and tortious interference
with existing contractual relations and awarded petitioners
(hereinafter Caperton) $50 million in damages, West Virginia
held its 2004 judicial elections. Knowing the State Supreme
Court of Appeals would consider the appeal, Don Blankenship,
Massey's chairman and principal officer, supported Brent
Benjamin rather than the incumbent justice seeking reelection.
His $3 million in contributions exceeded the total amount
spent by all other Benjamin supporters and by Benjamin's
own committee. Benjamin won by fewer than 50,000 votes.
Before Massey filed its appeal, Caperton moved to disqualify
now-Justice Benjamin under the Due Process Clause and the
State's Code of Judicial Conduct, based on the conflict
caused by Blankenship's campaign involvement. Justice Benjamin
denied the motion, indicating that he found nothing showing
bias for or against any litigant. The court then reversed
the $50 million verdict. During the rehearing process,
Justice Benjamin refused twice more to recuse himself,
and the court once again reversed the jury verdict. Four
months later, Justice Benjamin filed a concurring opinion,
defending the court's opinion and his recusal decision.
Held: In all the circumstances of this case, due process
requires recusal. Pp. 6-20.
(a) The Due Process Clause incorporated the common-law
rule requiring recusal when a judge has "a direct, personal,
substantial, pecuniary interest" in a case, Tumey v. Ohio,
273 U. S. 510 , but this Court has also identified additional
instances which, as an objective matter, require recusal
where "the probability of actual bias on the part of the
judge or decisionmaker is too high to be constitutionally
tolerable," Withrow v. Larkin, 421 U. S. 35 . Two such
instances place the present case in proper context. Pp.
6-11.
(1) The first involved local tribunals in which a judge
had a financial interest in a case's outcome that was less
than what would have been considered personal or direct
at common law. In Tumey, a village mayor with authority
to try those accused of violating a law prohibiting the
possession of alcoholic beverages faced two potential conflicts:
Because he received a salary supplement for performing
judicial duties that was funded from the fines assessed,
he received a supplement only upon a conviction; and sums
from the fines were deposited to the village's general
treasury fund for village improvements and repairs. Disqualification
was required under the principle that "[e]very procedure
which would offer a possible temptation to the average
man as a judge to forget the burden of proof required to
convict the defendant, or which might lead him not to hold
the balance nice, clear and true between the State and
the accused, denies the latter due process of law." 273
U. S., at 532. In Ward v. Monroeville, 409 U. S. 57 , a
conviction in another mayor's court was invalidated even
though the fines assessed went only to the town's general
fisc, because the mayor faced a " ' possible temptation'
" created by his "executive responsibilities for village
finances." Id., at 60. Recusal was also required where
an Alabama Supreme Court justice cast the deciding vote
upholding a punitive damages award while he was the lead
plaintiff in a nearly identical suit pending in Alabama's
lower courts. Aetna Life Ins. Co. v. Lavoie, 475 U. S.
813 . The proper constitutional inquiry was not "whether
in fact [the justice] was influenced," id., at 825, but
"whether sitting on [that] case ... ' "would offer a possible
temptation to the average ... judge to ... lead him not
to hold the balance nice, clear and true," ' " ibid. While
the "degree or kind of interest ... sufficient to disqualify
a judge ... '[could not] be defined with precision, ' "
id., at 822, the test did have an objective component.
Pp. 7-9.
(2) The second instance emerged in the criminal contempt
context, where a judge had no pecuniary interest in the
case but had determined in an earlier proceeding whether
criminal charges should be brought and then proceeded to
try and convict the petitioners. In re Murchison, 349 U.
S. 133 . Finding that "no man can be a judge in his own
case," and "no man is permitted to try cases where he has
an interest in the outcome," id., at 136, the Court noted
that the circumstances of the case and the prior relationship
required recusal. The judge's prior relationship with the
defendant, as well as the information acquired from the
prior proceeding, was critical. In reiterating that the
rule that "a defendant in criminal contempt proceedings
should be [tried] before a judge other than the one reviled
by the contemnor," Mayberry v. Pennsylvania, 400 U. S.
455 , rests on the relationship between the judge and the
defendant, id., at 465, the Court noted that the objective
inquiry is not whether the judge is actually biased, but
whether the average judge in his position is likely to
be neutral or there is an unconstitutional " 'potential
for bias,' " id., at 466. Pp. 9-11.
(b) Because the objective standards implementing the Due
Process Clause do not require proof of actual bias, this
Court does not question Justice Benjamin's subjective findings
of impartiality and propriety and need not determine whether
there was actual bias. Rather, the question is whether,
"under a realistic appraisal of psychological tendencies
and human weakness," the interest "poses such a risk of
actual bias or prejudgment that the practice must be forbidden
if the guarantee of due process is to be adequately implemented."
Withrow, 421 U. S., at 47. There is a serious risk of actual
bias when a person with a personal stake in a particular
case had a significant and disproportionate influence in
placing the judge on the case by raising funds or directing
the judge's election campaign when the case was pending
or imminent. The proper inquiry centers on the contribution's
relative size in comparison to the total amount contributed
to the campaign, the total amount spent in the election,
and the apparent effect of the contribution on the outcome.
It is not whether the contributions were a necessary and
sufficient cause of Benjamin's victory. In an election
decided by fewer than 50,000 votes, Blankenship's campaign
contributions--compared to the total amount contributed
to the campaign, as well as the total amount spent in the
election--had a significant and disproportionate influence
on the outcome. And the risk that Blankenship's influence
engendered actual bias is sufficiently substantial that
it "must be forbidden if the guarantee of due process is
to be adequately implemented." Ibid. The temporal relationship
between the campaign contributions, the justice's election,
and the pendency of the case is also critical, for it was
reasonably foreseeable that the pending case would be before
the newly elected justice. There is no allegation of a
quid pro quo agreement, but the extraordinary contributions
were made at a time when Blankenship had a vested stake
in the outcome. Just as no man is allowed to be a judge
in his own cause, similar fears of bias can arise when--without
the other parties' consent--a man chooses the judge in
his own cause. Applying this principle to the judicial
election process, there was here a serious, objective risk
of actual bias that required Justice Benjamin's recusal.
Pp. 11-16.
(c) Massey and its amici err in predicting that this decision
will lead to adverse consequences ranging from a flood
of recusal motions to unnecessary interference with judicial
elections. They point to no other instance involving judicial
campaign contributions that presents a potential for bias
comparable to the circumstances in this case, which are
extreme by any measure. And because the States may have
codes of conduct with more rigorous recusal standards than
due process requires, most recusal disputes will be resolved
without resort to the Constitution, making the constitutional
standard's application rare. Pp. 16-20.
___ W. Va. ___, ___S. E. 2d ___, reversed and remanded.
Kennedy, J., delivered the opinion of the Court, in which
Stevens, Souter, Ginsburg, and Breyer, JJ., joined. Roberts,
C. J., filed a dissenting opinion, in which Scalia, Thomas,
and Alito, JJ., joined. Scalia, J., filed a dissenting
opinion.
6/7/09 8:21 PM
TechNewsWorld - Jun 5, 2009
In its first enforcement action against an ISP, the FTC squelched a company accused of aggressively soliciting business in the distribution of child pornography, violent pornography, depictions of bestiality and other sordid criminal wares. It also allegedly hosted a vast collection of malware including spyware, viruses, trojan horses, phishing exploits, and botnet command-and-control servers.
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PC World - Jun 6, 2009
Although a Federal Trade Commission order shut down Internet access for San Jose Web-hosting firm Pricewert based on several complaints, the company says the action was unfair and plans to fight the FTC in court.
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Jawa Report - Jun 4, 2009
Based upon a complaint by the Federal Trade Commission (FTC), a federal district judge has issued a restraining order against Pricewert LLC, an Internet Service Provider (ISP) doing business under the names 3FN, APS Telecom and others.
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Mediapost.com
by Wendy Davis, 6 hours ago The Federal Trade Commission has obtained a temporary restraining order against the Internet service provider Pricewert, alleged to have hosted "a witches' brew" of illegal material. 6/4/09 10:32 PM Attorneys Who Defend Poor Want a RaiseThe Associated PressAttorneys who are paid by the state of Wisconsin to defend the poor say they deserve a raise. The State Bar of Wisconsin and the state public defender's office are pushing for a $30 an hour increase in the rate paid to private attorneys who volunteer to defend people who can't afford a lawyer. Public defender Nick Chiarkis says the current $40 an hour rate doesn't cover the overhead at even a small law firm. 5/27/09 5:18 AM Attorney Convicted of Sex Abuse for 'Cupping' Buttocks of Law GuardianNew York Law JournalA 72-year-old New York lawyer has been convicted of harassing a law guardian during a court proceeding, a misdemeanor charge of third-degree sexual abuse. Robert Kahn was accused of "cupping the left side of [the law guardian's] buttocks" as she leaned over to retrieve a file, according to the DA's office. During trial, the prosecution introduced into evidence a disciplinary committee decision suspending Kahn for six months for offensive remarks aimed at women lawyers, such as calling one "pig vomit on my shoes." 5/26/09 4:10 PM Supreme Court Rules Suspects Can Be Interrogated Without Lawyer
The Associated Press
The Supreme Court has overturned a long-standing ruling that stops police from initiating questions unless a defendant's lawyer is present, a move that will make it easier for prosecutors to interrogate suspects. The high court, in a 5-4 ruling, overturned the 1986 Michigan v. Jackson ruling, which Justice Antonin Scalia said "was poorly reasoned, has created no significant reliance interests and ... is ultimately unworkable."
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California Upholds Gay Marriage Ban
The Associated Press
The California state Supreme Court upheld a voter-approved ban on same-sex marriage Tuesday, but also decided that the estimated 18,000 gay couples who tied the knot before the law took effect will stay wed. The 6-1 decision, written by Chief Justice Ron George, rejected an argument from gay rights activists that the ban revised the California constitution's equal protection clause to such a dramatic degree that it first needed the Legislature's approval.
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