Wednesday, April 23, 2008

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Supreme Court rules in Fourth Amendment case

The US Supreme Court [official website; JURIST news archive] handed down its decision Wednesday in Virginia v. Moore [Duke Law case backgrounder], where the Court ruled that Virginia police did not violate Moore's Fourth Amendment right when they arrested him based on probable cause and performed a search incident to arrest, even when the arrest was prohibited by Virginia law. Moore was arrested for driving with a suspended license, even though the Virginia code directs that a police offer should issue a summons and release the suspect from custody for such an offense. A subsequent search turned up crack cocaine and Moore was convicted on drug charges. Lower courts in Virginia allowed the drug evidence, but the Virginia Supreme Court ruled that the evidence should have been suppressed [PDF text].

The Supreme Court reversed, holding that even though state arrest law may have been violated, the defendant's Fourth Amendment rights were not:

We reaffirm against a novel challenge what we have signaled for more than half a century. When officers have probable cause to believe that a person has committed a crime in their presence, the Fourth Amendment permits them to make an arrest, and to search the suspect in order to safeguard evidence and ensure their own safety.

Police Maliciously Set Him Up, Doctor Says

The Melbourne Police Department trained people to pose as patients seeking medical treatment for nonexistent illnesses, provided them with false medical records, trained them to give false medical histories, then sent them to walk-in clinics and arrested a doctor on false felony charges of distributing controlled substances, Dr. Nima Heshmati claims in Federal Court.

Heshmati claims the bogus operation caused him to be thrown into jail and his medical license to be suspended.

He claims the defendants knowingly provided false testimony about their office visits. "Each and every prescription issued by Dr. Heshmati was medically necessary and followed the medical standards for the prescribing of these controlled substances," the complaint states.
Heshmati demands punitive damages for conspiracy, false imprisonment, and civil rights violations. He also sues several Melbourne police officers as individuals, and the Florida Department of Health and other state agencies.

Paper Wins Dismissal Of Libel Suit

A circuit judge has dismissed with prejudice a defamation lawsuit against the Madison County Record. Amiel Cueto, whose brother, Lloyd Cueto, was running for judge in St. Clair County, claimed the Record defamed Amiel by reporting that Amiel was a power broker who controlled judges in the county.

G. Michael Prall, of the 11th Circuit in Bloomington, was assigned the case after the Illinois Supreme Court granted the Record's request that the case be removed from the 20th circuit, where it was filed.

Amiel Cueto, who served six years in prison for obstruction of justice, claimed the Record defamed him by calling him a power broker and stating that he owned 15 of 17 St. Clair County judges in the mid-1990s.

The Record sought dismissal, based on the alleged truth of the statements.

Judge Prall stated in his 5-page decision that while the article did not use the words power broker as a flattering term, it did not suggest criminal activity.

As to Cueto's controlling St. Clair judges in the 1990s, Prall wrote, "There is no question that witnesses made statements in official court proceedings to the effect that the plaintiff controlled judges in the mid 1990s. Plaintiff's contention that these statements were untrue would not affect the right of the defendant to report these statements."

Officers Denied Immunity For Arresting Protester

The 10th Circuit denied immunity to five police officers in Albuquerque, N.M., who allegedly arrested a University of New Mexico faculty member during an antiwar protest, simply because he was part of a "large basket containing a few bad eggs."

The court ruled 2-1 that John Fogarty may proceed with a lawsuit accusing the officers of targeting him without probable cause and using excessive force to arrest him during a March 2003 demonstration against the U.S. war in Iraq.

The protest began on the UNM campus and spread to city sidewalks and streets, with between 500 and 1,000 demonstrators voicing their opposition to the war.

Fogarty and a friend joined a drum circle that was "play(ing) a really nice samba," Fogarty claimed. But police accused the drummers of inciting the crowd and making it more difficult to clear the streets.

Capt. John Gonzales told officers to "remove the drums," a statement some interpreted as a direct order to arrest the drummers, Fogarty included. The plaintiff said he was already off the street when officers pelted him with an unknown projectile and arrested him.

Officers allegedly took the handcuffed Fogarty near an area with lingering tear gas, causing Fogarty to suffer an acute asthma attack. He also claimed to have torn a tendon in his wrist during the ordeal.

The majority refused to dismiss Fogarty's claims, ruling that he had provided enough evidence to survive summary judgment at this stage.

"The Fourth Amendment plainly requires probable cause to arrest Fogarty as an individual, not a member of a large basket containing a few bad eggs," Judge Lucero wrote. "In other words, that Fogarty was a participant in an antiwar protest where some individuals may have broken the law is not enough to justify his arrest."

Court allows search and seizure in Virginia case

The Supreme Court affirmed Wednesday that police have the power to conduct searches and seize evidence, even when done during an arrest that turns out to have violated state law.

The unanimous decision comes in a case from Portsmouth, Va., where city detectives seized crack cocaine from a motorist after arresting him for a traffic ticket offense.

David Lee Moore was pulled over for driving on a suspended license. The violation is a minor crime in Virginia and calls for police to issue a court summons and let the driver go.

Instead, city detectives arrested Moore and prosecutors say that drugs taken from him in a subsequent search can be used against him as evidence.

"We reaffirm against a novel challenge what we have signaled for half a century," Justice Antonin Scalia wrote.

Scalia said that when officers have probable cause to believe a person has committed a crime in their presence, the Fourth Amendment permits them to make an arrest and to search the suspect in order to safeguard evidence and ensure their own safety.

Moore was convicted on a drug charge and sentenced to 3 1/2 years in prison.

The Virginia Supreme Court ruled that police should have released Moore and could not lawfully conduct a search.

State law, said the Virginia Supreme Court, restricted officers to issuing a ticket in exchange for a promise to appear later in court. Virginia courts dismissed the indictment against Moore.

Moore argued that the Fourth Amendment permits a search only following a lawful state arrest.

In a concurring opinion, Justice Ruth Bader Ginsburg said she finds more support for Moore's position in previous court cases than the rest of the court does. But she said she agrees that the arrest and search of Moore was constitutional, even though it violated Virginia law.

The Bush administration and attorneys general from 18 states lined up in support of Virginia prosecutors.

The federal government said Moore's case had the potential to greatly increase the class of unconstitutional arrests, resulting in evidence seized during searches being excluded with increasing frequency.

Looking to state laws to provide the basis for searches would introduce uncertainty into the legal system, the 18 states said in court papers.

Imagining a Public Law Firm’s Earnings Report

Nearly a year after an Australian law firm went public, many in the legal profession are still tittering over whether any American players would follow suit.

By necessity, law firms are fairly tight-lipped about much of the work they do. That would have to change if any were to become a publicly traded company, what with the disclosure requirements and the probing questions of shareholders.

In the midst of earnings season, Above the Law’s David Lat pens a mostly tongue-in-cheek piece for The New York Observer speculating on what a quarterly earnings report by an American firm would look like. (A hint: It wouldn’t say much.)

Mr. Lat, a former corporate lawyer himself, gently jabs the pampered-partners culture of Big Law, which may take a hit as corporate profits slide. Niceties like $160,000 starting salaries for first-year associates, 18 weeks of paid parental leave and Friday Swedish massages, he imagines, would go out the window.

And how would the firm describe secrecy-shrouded practices like mergers and acquisitions work or criminal defense? Perhaps thusly:

The M&A department spent a significant amount of time on several potential transactions for a client in the energy sector that were never consummated. Unfortunately, the firm was unable to bill for most of this time …

The firm cannot provide additional details about this representation, due to client confidentiality rules.

As a point of comparison, consider the semiannual disclosures of Slater & Gordon, the personal injuries firm that now resides on the Australian stock exchange. Its recent annual report (PDF) resembles virtually any other public firm’s, with general income statements and descriptions of its business.

Which is not to say that public law firms would ever fully open their kimonos, much as representatives of another industry tend to play their cards close to the vest. Alternative asset managers — including private equity firm Blackstone Group, buyout- and hedge-fund manager Fortress Investment Group and hedge fund Och-Ziff Capital Management — have been criticized by some analysts and investors as presenting opaque looks into their businesses.

Monday, April 21, 2008

9th Circuit Won't Rehear English-Learner Ruling

The 9th Circuit let stand a February ruling that Arizona may not cut off its additional funding for English-language learner programs after two years.

Republican legislative leaders and state school superintendent Tom Horne sought to reduce the amount taxpayers would have to pay under court orders requiring the state to step up its funding of the ELL programs. Parents first complained about the state's alleged inadequate funding in a 1992 class action.

The two-year limit pushed by legislators and Horne would have reduced the state's obligation from $40.6 million in new funding to less than $20 million. Horne says he plans to appeal the issue to the U.S. Supreme Court.

On the other side, attorneys for the plaintiffs claim the state needs to pay more than $40.6 million in order to comply with the Equal Educational Opportunity Act.

After more than a decade of court orders and minimal response, Gov. Janet Napolitano allowed HB 2064 - the Legislature's attempt to create a compliant funding system - to become law in 2006 without her signature.

The three-judge panel ruled that although HB 2064 has improved conditions, Arizona's ELL students still fail to meet the requirements of state academic standards and the No Child Left Behind Act. Additionally, the two-year funding cutoff renders the law inadequate and includes grant programs that violate federal education-funding law, the judges concluded.

Friday, April 18, 2008

Surgeon Could Lose License Over Sex With Patient

A prominent North County surgeon could be in trouble with the state medical board and learned he could lose his license.

Dr. Dennis Nigro is the subject of a hearing at the state building in which he is accused of having sex with a patient.

Nigro admitted to having a brief affair with a woman in 2003, but said she was no longer in his care during their relationship.

Nigro’s Medicare defense attorney, Michael Khouri, said, “The woman does not believe Dr. Nigro was her doctor when the sex occurred.”

“There is documentation required to terminate relationship. It was not done in this case,” said Deputy Attorney General Mary Agnes Matyszewski.

An administrative law judge will issue a proposed decision that will be sent to the state medical board for final disposition.

Nigro’s license could be suspended if discipline is deemed necessary.

On the subject of the "worst five things a doctor can do," he provided the 10News Investigation Team the list of the "worst five" and then commented on each individual item. There were no specific cases or doctors mentioned in the course of this interview. Among the items provided by Mr. Alexander as one of the "worst five things a doctor can do," was a sexual relationship between a doctor and his or her patient. Clearly, in reporting the allegations against Dr. Dennis Nigro there was no intention or effort to tie Alexander’s separate interview specifcally to the Dr. Dennis Nigro case.

Thursday, April 17, 2008

Defense in CIA case wants Berlusconi as witnesses

A former Italian secret services chief's defense lawyers requested Wednesday that Premier-elect Silvio Berlusconi testify in the trial of 26 Americans and others charged with kidnapping a terror suspect during a CIA operation.

Nicolo Pollari's defense also requested outgoing Premier Romano Prodi as a witness, said lawyer Alessia Sorgato, who represents some of the American defendants.

Berlusconi _ who won Italy's national elections Monday _ is considered a key witness because he was premier when an Egyptian cleric, Osama Moustafa Hassan Nasr, also known as Abu Omar, was abducted from a Milan street in February 2003.

The alleged kidnapping was part of the CIA's so-called extraordinary renditions program _ moving terror suspects from country to country without public legal proceedings.

Berlusconi's testimony in the Milan trial is being sought to clarify which evidence might be protected as classified and prove that Pollari was against the rendition, Sorgato said. Also among the requested witnesses are the defense ministers and undersecretaries in both Berlusconi's 2001-06 government and Prodi's 2006-08 government.

Judge Oscar Magi will decide May 14 on whether to allow their testimony. On the same day, Abu Omar's wife, Ghali Nabila, and Milan's lead anti-terrorism investigator, Bruno Megale, will also be heard.

The issue of classified documents has held up the trial, which opened in June, for months as the court awaited a decision by Italy's highest court on whether the indictments improperly relied on state secrets as evidence. It is part of the Italian government's request to throw out the indictments.

The high court still has not ruled, but the judge decided last month to resume the trial anyway. The Constitutional Court is set to hear the case July 8.

Italian prosecutors say the cleric was transferred to U.S. bases in Italy and Germany before being moved to Egypt, where he was imprisoned for four years. Nasr, who was released last year, said he was tortured.

All but one American suspect in the case have been identified by prosecutors as CIA agents. Seven Italians also were indicted in the case, including Pollari.

Pollari has denied any involvement by Italian intelligence in the abduction, and Berlusconi has publicly supported his military secret services chief.

Tuesday, April 15, 2008

Discovery Across Borders

You are a United States company but a global citizen. Your shares are traded on U.S. exchanges. You have sales forces in Europe, manufacturing in Asia, and your eyes on the Middle East. It used to be that only the largest companies had a broad international reach. Now, it seems corporations of all sizes, in order to be competitive, must carefully consider overseas operations. While technology has made transition into the new global economy easier, it also creates special risks.

Imagine the following: You wake up one morning to a flurry of activity in France, where regulators have raided your main sales office seeking documents and information regarding alleged kickbacks to a key customer. You are asked to turn over hard drives, backup tapes and access to your servers. A reporter from Le Monde picks up the story, and by the time the U.S. opens for business there is a story on Your stock price falls throughout the day; by the end of the week a leading class action law firm has announced the filing of a securities fraud case. The Securities and Exchange Commission (SEC) asks for information about your global sales practices and accounting policies.

Suddenly, you are faced with a swirl of information demands and document preservation obligations. French regulators want to cart your computers away-but the SEC wants the information they contain. American plaintiffs' lawyers will want it as well, and there's no telling whether additional regulators or litigants will become involved.

In today's business, all information is electronic. Paper may have been heavy, hard to store, and time-consuming to review-but it was a tangible thing, easy to inventory, and it tended to be limited in volume, even in the largest cases. More importantly, identifying relevant documents for preservation or production was relatively easy: Either a document was in your possession or custody, or it wasn't, and if it wasn't, either you controlled the people who had it, or you didn't. Electronic communication has led to exponential increases in the amount of data that companies store, and the locations where the information is stored: desktops, laptops, servers, PDAs, BlackBerries™, smart phones, optical drives, thumb drives, iPods™ and more.

Unless you spend a great deal of time talking shop with your IT managers, you probably don't know how many e-mail or file servers your company uses. You probably don't know exactly where your electronic documents are stored, what happens to your e-mails after you delete them, or how frequently your company's servers are backed up to tape. Are you prepared for information discovery across borders? Do you understand how to preserve, collect and analyze data in a way that will meet the requirements of foreign as well as U.S. courts and regulatory bodies? Are you sure?

If you operate internationally, you must be cognizant not only of a patchwork of laws and regulations-many of which could conflict-but also of cultural differences that affect your response to requests for electronic information.

The initial stage in any litigation or regulatory effort is to ensure preservation of relevant materials. But an international scope makes this far more complicated than just issuing a directive to employees to stop deleting e-mails or drafted documents. You need to know where information is located, how it is stored, when it is backed up, and whether backups are rotated or destroyed. Automatic deletion or rotation policies mean that if you do nothing, you may lose files that are subject to a regulatory or litigation request.

Data collection also is far more complicated in an international context than in a purely domestic one. Local laws may prohibit an employer from searching employee e-mail files. As a cultural matter, most Americans are accustomed to the idea that an employee's computer and e-mail account belong to the employer. Outside of the U.S., the cultural understanding is frequently just the opposite: An employee's computer and e-mail account are considered private, and it may be a criminal offense to invade that privacy. Collection of data outside the U.S. may be seen as coercion by an employer, and it may lead to labor union grievances or complaints.

Once the information is collected, getting it reviewed and produced to a U.S. regulator or litigant is also no simple matter. Data privacy and blocking statutes in Europe, Asia and South America may forbid the transfer of personal data outside of their borders to an "unprotected" jurisdiction like the United States-and personal data include names, e-mail addresses and office phone numbers. Indeed, special procedures may be required before individuals outside a company-including the company's outside counsel-may review the data. And local laws may dictate that only data specifically responsive to a request may be exported, requiring counsel to review materials locally rather than shipping them to the U.S. to one centralized location, as is normally done in U.S. litigation.

Do not expect, however, any sympathy from U.S. regulators or plaintiffs' lawyers. U.S. regulators are skeptical of data protection laws and may take the view that international companies hide behind them to avoid cooperating with the regulators' investigations. U.S. courts may not be more understanding. The Supreme Court has held that U.S. discovery rules presumptively apply in civil litigation involving an international company, even if producing data in response to a discovery request would be unlawful in the international company's host jurisdiction.

Monday, April 14, 2008

French Court Bars Champagne Cookies

A Paris court on Wednesday barred a Swiss-based cookie maker from using the term "from Champagne" on its packaging.

The ruling said the advertising by SAS Cornu violates the trademark used by makers of the sparkling wine in the Champagne region of eastern France.

Cornu is based in a Swiss village that also happens to be called Champagne, and its cookie packages note that they use recipes "from Champagne."

The French court ruling also said the company's Swiss-based web site — — illegally co-opts the name.

The CIVC, a Champagne winegrowers' committee that brought the case, hailed the ruling, which applies only in France. It says cigarettes, perfume and a bubble-bath product had wrongly tried to use the name in the past.

Under French law, the name can only be used in commercial marketing for the sparkling wine. A group of winemakers from the Swiss village of Champagne lost a similar legal battle last year to attach the town's name to locally produced wine.

Thursday, April 10, 2008

Stanford Doctor Free to Practice

Stanford physician Cheryl Walker, cleared of charges she abused her elderly grandmother and embezzled from her estate, is once again free to practice medicine in California.

However, officials at Stanford Medical Center, which put the world-renowned reproductive science expert on unpaid leave after charges surfaced, did not return calls for comment on whether she would also be reinstated in her job.

The Medical Board of California suspended Walker’s license in May 2002, several months after she and her mother, Janice Walker, were indicted in what prosecutors said was a scheme to loot the estate of family matriarch Mary Lee Koleber, 95, and hasten her death with a “lethal cocktail” of drugs.

Prosecutors dropped charges against Cheryl Walker and cut a deal with her mother last month after a key witness against the pair admitted forging documents, shattering his credibility.

The medical board had 30 days after the charges were dropped –which was Thursday – to file papers to keep the suspension in place, said David Carr, deputy attorney general representing the medical board. Though the suspension expired, the board has up to three years after the arrest to investigate and take further action.Friday, Walker paid the renewal fee for her medical license, which expired during the suspension, her lawyer, medicare defense attorney Mike Khouri said. Khouri said he did not know the status of his client’s discussions with Stanford.

Tuesday, April 8, 2008

Justices to Hear Broadcast Indecency Case

The U.S. Supreme Court agreed Monday to hear arguments regarding the use of profanities on radio and television broadcasts, the first time the court will rule on such indecency matters in 30 years.

The case focuses on a policy implemented by the Federal Communications Commission in 2006 that allows the agency to impose heavy fines on broadcasters for "fleeting expletives" -- one time occurrences of foul language, the Associated Press reported.

The FCC, backed by the Bush administration, brought the case to the high court after an appellate court nullified the policy in a case between the agency and Fox Broadcasting Corp.

"The Commission, Congress and most importantly, parents, understand that protecting our children is our greatest responsibility," FCC Chairman Kevin Martin said in a prepared statement, according to the AP. "I continue to believe we have an obligation then to enforce laws restricting indecent language on television and radio when children are in the audience."

Fox was also pleased at the court's decision to hear the case. In a statement, Fox spokesman Scott Grogin told the AP that the court's opinion will "give us the opportunity to argue that the FCC's expanded enforcement of the indecency law is unconstitutional in today's diverse media marketplace where parents have access to a variety of tools to monitor their children's television viewing."

At issue in the Fox case are two separate instances in which celebrities uttered variations of four-letter expletives during live broadcasts of the Billboard Music Awards. At the 2002 awards show, singer Cher said "[expletive] 'em" to her critics. A year later, reality show star Nicole Richie used two expletives during on-stage banter with fellow reality show celebrity Paris Hilton.

Fox was not fined for the incidents, but an FCC ruling in March of 2006 found that the network had violated decency rules and could be fined for future violations.

Fox went on to challenge the ruling in court, arguing that the agency's decency standard was unclear, violated free-speech protections and that the rulings had contradicted earlier findings, according to a Reuters synopsis.

On June 4, the New York Court of Appeals for the Second Circuit ruled on the side of the broadcasters, arguing that the FCC had not justified its reasoning for changing its rules, the AP reported. The appeals court also suggested that the policy may violate the First Amendment.

The appeals court referred the case back to the agency for further review, but stated that it was "skeptical that the commission can provide a reasoned explanation for its fleeting expletive regime that would pass constitutional muster."

The FCC decided to change its policy after several instances of vulgarity during live programs, including an expletive uttered at the 2003 Golden Globes awards and in continued response to a 2004 Super Bowl halftime show in which singer Janet Jackson's breast was exposed, according to Reuters.

In 2006, Congress voted to increase fines for indecency against broadcasters tenfold.

The last time the Supreme Court heard an indecency case was in 1978, when it sided with the FCC in stating that the deliberate, repeated utterance of profanities constituted indecency. The court has not yet ruled on whether one-time occurrences of an expletive could be subject to FCC fines.

Fox, along with ABC, NBC and CBS have opposed the FCC regulations, arguing that it represents an unwarranted and sudden shift in policy. The networks also argue that the fines represent an undue burden not imposed on cable TV, Internet and satellite radio, according to the Los Angeles Times.

The Supreme Court will hear the case in the fall.

Monday, April 7, 2008

What's the Next Generation of 401(k) Litigation

The Supreme Court's LaRue DecisionApril 8, 2008

Location 90-minute Teleconference1:00-2:30 pm ET / 12:00 pm -1:30 pm CT / 11:00 am-12:30 pm MT / 10:00 am-11:30 am PTNationwide, District of ColumbiaUnited States of America

DescriptionModerator: Karen Handorf, Cohen Milstein Hausfeld & Toll PLLC. Panelists: Bob Eccles, O'Melveny & Myers LLP; Tim Hauser, Department of Labor; Mary Ellen Signorille, AARP.

The Supreme Court’s decision in LaRue v. DeWolff, Boberg & Associates, Inc. makes it clear that a single participant can bring a fiduciary breach claim on behalf of a defined contribution plan, even if the losses relate only to that participant’s account. However, with two concurring opinions, the LaRue decision leaves many unanswered questions. Our panel of experienced ERISA litigators will discuss how the LaRue decision is likely to impact future 401(k) plan litigation. Topics will include: Do participants have to exhaust administrative remedies; Are fiduciary claims in defined contribution plans really benefit claims; What actions should 401k plans take to lessen the possibility of lawsuits; Can former participants bring suit if they’ve gotten a distribution;

Additional InformationWhat are the implications of LaRue for other types of plans; What types of claims & equitable remedies will be available under Section 502 (a)(3); Will this case impact issues surrounding auto-enrollment & investment advice; Who's liable if participant's investment instructions aren't followed.

ContactMs. Mary KarounosPhone: 202-662-8676Email:

Friday, April 4, 2008

Plans to drop case on hold; Prosecutor to evaluate

Instead of dropping the armed robbery case against Elton Phillips, the Louisiana attorney general's office on Monday asked Criminal District Court Judge Dennis Waldron for a week to consider possible new evidence against the suspect, accused of a gas station stick-up. Phillips' case became high-profile after it came to light he had left the gas station and gone straight to the home of then-Orleans Parish District Attorney Eddie Jordan, whose girlfriend knew Phillips. On Monday, Assistant Attorney General Matthew Derbes said he needs the time to examine footage that aired on WDSU on Thursday, the night he announced he would drop the case because of contradictory witness testimony.

The television news report quoted Carolyn Jackson, describing her as Phillips' aunt, who said the 20-year-old defendant confessed the robbery to her. During the broadcast, she said she had prayed with Phillips and he confessed. "I said, 'You need to pray, you need to confess. I need to agree with you,' " Jackson told Travers Mackel with WDSU, according to the clip on the station's Web site. "He took my hand, he held his head down and he said, 'Lord, I am sorry for what I've done.' " "I said, 'Uh uh, you have to say what you've done,' " Jackson continued. "He said, 'I'm sorry for robbing.' And he asked God to forgive him." Jackson, however, told a different story when she was briefly called to the stand by defense attorney John Thomas during the short hearing.

Thomas asked Jackson, "Did he confess?" She replied, "No, sir, he did not." Under cross examination by Derbes, Jackson said that she isn't Phillips' aunt -- in fact isn't related to him at all. Phillips confessed only to "doing wrong" in general while they were praying, she added. Jackson said she drove from her home in Hammond to New Orleans for the TV interview so she could talk to the public about the importance of prayer. Waldron granted the request for a continuance, asking Jackson and the attorneys to return to Criminal District Court next Monday, when they would decide whether to proceed with a trial. Jackson at times appeared distraught by the repercussions of her statement, dropping to her knees outside the courthouse to ask that Phillips' family forgive her.

erbes had been prepared to drop the case against Phillips because of contradictory statements made by the chief witnesses in the case: robbery victim Roy Joseph and his girlfriend. The Louisiana attorney general's office is handling the case because of the connection to Jordan and the conflict of interest that represents. The case against Phillips ended up having some problems. Neither Joseph nor his girlfriend could identify Phillips as the man who on Oct. 11 robbed Joseph at a gas station in Algiers, taking $800, a white metal chain and a cell phone. The armed robbery charge against Phillips took on prominence because Phillips allegedly left the gas station in a Dodge Avenger, which Joseph followed in his Hummer H2, eventually ramming the fleeing car. Police documents said that Phillips got out of the vehicle and ran on foot to the Algiers home of Jordan and Cherylynn Robinson, the former DA's live-in girlfriend. Both Jordan and Robinson talked to Phillips before he left their house.

They were expected to testify at the trial. Jordan left office about a week after the incident became public, but said it did not play a part in his decision to resign with more than a year left in his term. After the Monday court hearing, Thomas, the defense attorney representing Phillips, questioned why the prosecutor needed a week to consider Jackson's statements, calling them just as problematic as the potential testimony of the robbery victim and his girlfriend. "She is not the aunt like she claimed to be, and she never got a confession," Thomas said.

But Derbes, speaking with reporters after the hearing, said the attorney general's office also has questions about statements made by Phillips' mother, Kim Wicker, to WDSU that her son had been prepared to deal with the consequences of his behavior. Wicker also said that her son did not confess to committing the robbery, adding that she never asked him that question. Still, Derbes said the interview was troubling. "Why was he ready to face consequences?" Derbes asked. Thomas said that Phillips' mother was speaking more in a spiritual sense about her son. Phillips will remain locked up at the Orleans Parish jail until attorneys resolve the case.

Battle Over Warrantless Surveillance

The Bush Administration’s warrantless surveillance program has stymied Congress since its revelation in 2005. Should Congress legitimize the program through legislation, essentially gutting existing restrictions on domestic surveillance and concentrating power in the executive branch, or should it provide meaningful oversight of a potentially far-reaching and otherwise illegal operation?

The approach chosen has far-reaching ramifications for executive surveillance initiatives yet Congress is at an impasse, with both houses enacting vastly differing legislation.The current battle arises out of the “Terrorist Surveillance Program” (TSP) authorized by President Bush soon after September 11, 2001. Although most of the program’s details are unknown, the administration has described it as involving warrantless NSA surveillance of information related to electronic communications where the government reasonably believed a party was associated with Al Qaeda and another party to the communication was outside the United States.

The Bush administration has acknowledged that the program intercepted electronic information from people in the United States who were not involved with terrorism.Because the TSP involved warrantless domestic surveillance, it was illegal. The Foreign Intelligence Surveillance Act (FISA), arguably the exclusive mechanism for conducting such surveillance, requires a warrant from a special intelligence court to engage in domestic surveillance for foreign intelligence purposes.

To obtain that warrant, government officials must provide certain specific information about the intelligence operation to the court. None of the statutory exceptions to the warrant requirement apply to the TSP.Almost immediately, Congress began investigating the TSP. Instead of reining it in, however, Congress enacted the “Protect America Act” last August. That Act amended FISA to allow warrantless surveillance of people “reasonably believed to be outside of the United States.”

The Act allowed such surveillance for up to a year with the Attorney General or Director of National Intelligence’s authorization, did not require specific identification of targets, and provided little meaningful judicial review. Worried about the Bush administration’s failure to provide specific information and the Act’s potential ramifications, Congress also included a sunset provision causing it to expire in early 2008.

The ensuing months have involved a series of battles over the future of the warrantless wiretap program.In February, the Senate passed a bill that largely extends the Protect America Act and grants retroactive immunity to telecommunications companies who assisted the TSP and are now defending against civil lawsuits alleging that their actions violated the law.

The Senate also rejected an amendment clarifying that FISA is the exclusive means under which surveillance can be conducted, thus encouraging the administration’s continuing arguments that inherent executive authority and congressional authorization for the use of force in Iraq and Afghanistan justify warrantless surveillance.In contrast, the House bill, passed in March, contains an exclusivity provision, a provision requiring prior intelligence court approval of surveillance measures except in emergencies, and various oversight mechanisms including audit and reporting requirements.

The House bill rejects blanket immunity for telecommunications companies although it makes clear that they can defend themselves by presenting evidence of compliance with the law.The differences between the oversight and accountability mechanisms in the Senate and House bills are manifest. The Senate bill leaves unchecked the NSA’s surveillance abilities. Government officials can easily justify an interception of domestic electronic communications under a standard requiring only that they “reasonably believe” that the target was outside of the United States. Nothing in this standard protects communications to which Americans are parties from being swept up in surveillance dragnets.

Indeed, the government may never need to justify such an interception as the Senate will not commit to FISA as the exclusive means of conducting surveillance.This represents a substantial step backward from FISA’s original purposes. Congress enacted FISA after revelations of widespread NSA domestic surveillance abuses in the 1970s – specifically that the NSA had, with the cooperation of U.S. telegraph companies, intercepted all American overseas telegraphic communications. FISA was designed to provide clear guidelines for surveillance and stop its unwarranted expansion.

The Senate bill effectively rolls back those safeguards. In contrast, the House bill’s warrant requirement and other oversight mechanisms are more consistent with FISA’s original purposes. Until the Bush administration can show (and to date it has not shown) that such oversight poses a threat to national security there is no reason to give it carte blanche with respect to surveillance.

The same is true regarding retroactive immunity. The Bush administration has characterized that provision as vital to national security and chastised the House for threatening telecommunications companies with financial ruin merely for helping their country. Such companies, the Bush administration claims, will be unwilling to cooperate with intelligence activities absent retroactive immunity.The administration’s arguments are misleading. The House bill unquestionably forces telecommunications companies to defend their actions in court but it hardly forces them to the brink of financial ruin. In fact, it allows those companies to present evidence to exonerate themselves.

Furthermore, the Bush administration’s real concern is not that telecommunications companies will walk away from the intelligence game – what remotely sane, public-minded, heavily regulated industry would refuse to cooperate with legal intelligence activities? The telecommunications industry hasn’t and it wouldn’t and the Bush administration knows it.The Bush administration’s real concern centers on the “state secrets” privilege at the heart of these lawsuits. That privilege allows courts to exclude evidence revealing information potentially endangering national security. Courts often defer to government assertions of this privilege, even dismissing whole cases based on it. As a result, government officials can hide wrongdoing behind broad assertions of the privilege.

The Bush administration has asserted the state secrets privilege in the telecommunications lawsuits but some courts have nevertheless refused to dismiss the lawsuits. The administration thus faces the possibility of having to account for itself and its warrantless surveillance program in court (albeit behind closed doors). Retroactive immunity prevents the lawsuits from reaching court altogether and achieves the administration’s goal via a different route. Hence, the Bush administration’s call for retroactive immunity has far more to do with keeping its own secrets than with protecting the telecommunications industry or national security.

The House bill adequately protects the secrecy of national security information revealed in the telecommunications lawsuits while forcing the Bush administration to provide actual proof that information endangers national security instead of ill-defined assertions of harm. The Senate bill insulates the Bush administration from having to account for itself at all. Is there really any debate as to the right choice?

Thursday, April 3, 2008

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Lawyer to be Suspended Over Conduct

The former head of the Wayne County, MI Prosecutor Office's drug unit will be suspended with pay Friday and now faces an investigation that could lead to criminal charges for her actions in a 2005 cocaine case.

Prosecutor Kym Worthy, in a prepared statement released late Wednesday afternoon, said she asked the Michigan Prosecuting Attorney's Coordinating Council to find a prosecutor to probe Karen Plants' conduct in the case in which she allowed perjured police and witness testimony. Plants said she did so to protect the identity and safety of a paid informant.

Legal ethics experts and criminal attorneys said the allegations against Plants -- using perjured testimony to win a conviction -- strike at the heart of the criminal justice system.
"I would not bother to ask my class about it, the answer is so obvious," said Len Niehoff, a University of Michigan professor of evidence and legal ethics.

"As a prosecutor, you strike hard, fair blows and let justice be done," said defense lawyer Walter Piszczatowski, a former state and federal prosecutor. "Sometimes you face that choice: Disclose the confidential informant or kiss your case bye-bye. In the end, you have to do the right thing. You don't have people lie."

He said he was especially troubled that the informant stood to collect a percentage of the assets seized from the alleged dealers.

"The guy's got a tremendous motive to lie," Piszczatowski said. "Maybe the testimony's not about trapping criminals. It's about making money, and that's scary."

Worthy asked for the outside prosecutor because it would be a conflict of interest for her office to investigate Plants, a 17-year veteran of her office.

Plants was charged Monday with professional misconduct by the state Attorney Grievance Commission and could lose her law license. The commission also accused Plants of intentionally misleading jurors in her closing arguments. Worthy reassigned Plants from head of the office's Major Drug Unit on Tuesday.

Worthy's request Wednesday for a special prosecutor, which was done pending approval by the attorney general, raises the specter of a top figure in the battle against illegal drugs undergoing a criminal investigation.

Kim Warren Eddie, the council's assistant executive director, said his office should be able to find another prosecutor to pick up the matter within "a couple of days." Reassignments are made many times a year because a potential case involves someone with close professional, personal or family ties to a local prosecutor, Eddie said, adding that the Attorney General's Office could opt to handle the case itself.

Worthy would not comment beyond the prepared statement. Plants' lawyer, Kenneth Mogill, said that "on a personal level it's hard" for his client.

"But it's the right thing to do institutionally," he said. "And just as Kym Worthy is doing the right thing for the institution while this cloud hangs over Karen's head, the evidence is going to show that Karen acted with similar total integrity while prosecuting the case."

The grievance commission, the state Supreme Court's watchdog, charged Plants with professional misconduct Monday for allowing two Inkster cops and their confidential informant to lie under oath during a 2005 cocaine trial.

The episode stems from a March 11, 2005, Downriver drug bust that took 47 kilograms of cocaine off the streets.

During a preliminary examination, two evidentiary hearings and the trial, Plants allowed the officers and a witness to hide his role as the confidential informant, repeatedly denying that they knew one another, preventing defense lawyers from challenging the informant's credibility.
The informant, a paid tipster, was arrested during the bust but was freed without being charged.

Where Lawyer Creativity Shines

A new type of legal service provider emerges through innovation. When it comes to technology, let me confess, I am definitely not an expert. Nevertheless, I am fascinated by the two types of creativity involved with technology. The most obvious is the technical creativity required to invent and develop a new product or system. But the other, less-obvious type is the client-focused creativity that innovative lawyers demonstrate in developing new products and services as the result of existing technology.

One recent example of this is a product developed by Nova Legal and Advisory, which is located in Sydney, Australia, and consists of both a traditional law firm and a consulting firm. The law firm specializes in commercial legal services and complex corporate transactions, while the consulting firm specializes in corporate governance and risk management. The lawyers worked with the consulting firm’s technology staff to come up with a product called Nova Solutions. As Nova Legal and Advisory describes it, the product is “an integrated online management tool for the governance infrastructure needs of organizations.”

Lawyers and Technicians CollaborateBasically, Nova Solutions is an online training and compliance program. The firm’s lawyers had developed an extensive understanding of client needs in human relations, compliance, governance and training. They then collaborated with the consulting group’s researchers, technical writers and technicians to convert basic systems into, as the firm summarizes it, “an Internet package tailored to each company, where users can click on a screen to see the company’s policies in relation to a range of regulatory and compliance issues.”

But this product goes even further. Users can click again “to complete a training course to bring them up-to-speed on the company’s requirements in these areas.”

This is at least the fourth such online training and compliance product developed by a law firm. Blake Dawson Waldron, one of Australia’s largest firms, offers Salt TM Enterprise, a fully managed, Internet-delivered service supported by the professional team at Blake Dawson Technology Pty Ltd.

Salt TM Enterprise is quite an extensive program. In Australia, it currently offers 14 courses covering key areas of the law, including corporate governance, environmental compliance and insider trading. There is also a module for information and communication technology companies to help them benefit from Australia’s Free Trade Agreements with the United States, Singapore and Thailand.

And recently Blake Dawson extended Salt TM Enterprise to New Zealand through an affiliation with Kensington Swan, a full-service commercial law firm. Among the 12 courses offered there, several are different from the courses offered in Australia, including “Consumer Guarantees,” “Money Laundering” and “Resource Management.”

There are Stateside examples, too. “Down Under” law firms aren’t the only ones that offer online training and compliance programs. Holland & Hart offers the Holland & Hart Compliance Management System (HHCMS). Developed in collaboration with My Learning Advantage, Inc., an e-learning software provider, HHCMS is offered as a “fully hosted,” customizable and continually updated service. Its design utilizes a multimedia approach, with video segments at the beginning and end of each course.

A similar training program, but without the compliance component, has been developed by the multi-office law firm Howrey in the form of its Howrey Virtual University, which is a system designed for a group of internal clients—the firm’s associates. Located on the firm’s intranet, this program allows associates to manage their training individually, on their own time schedules.
Applying Preventive Legal MedicineThe point here isn’t the technical creativity. The underlying technology already existed. What is noteworthy is the client-focused creativity employed by the lawyers in these firms. They took an existing system and, with the assistance of technology experts, developed it into a product that not only provides clients with information and knowledge 24-7, but also provides the ability to anticipate and resolve issues that otherwise could grow into major legal problems.

In other words, just like many doctors do with their patients, these firms don’t just “cure” their clients-—they try to keep them healthy by providing preventive legal medicine. And in the process, by applying creativity to technology, they have created a new type of legal service provider. To me, that is really fascinating.