Saturday, June 05, 2004
Virginia official defends DNA test results in Earl Washington case
The Richmond paper has this article ("Official backs disputed DNA test," 6/5/04) about the defense and criticism of DNA testing performed by the Virginia Division of Forensic Science in connection with the Earl Washington case. The Virginia test results conflict with tests performed by Dr. Edward Blake in California (see earlier post below).
McGuireWoods band smoking breaks
The Richmond paper reports here ("Smoking policy stinks, some say," 6/5/04) that the McGuireWoods firm has outlawed smoke breaks for its lawyers and staff.
DNA guru Blake to Virginia - Coleman samples not leaving my lab
The Roanoke paper reports here that DNA expert Edward Blake has declared that he will not release the DNA samples from Roger Keith Coleman stored in Blake's California laboratory. Blake questions whether the Commonwealth could or would do an adequate job of testing the sample.
Years ago, Blake's own evidence was cited by Judge Williams in support of the Court's conclusion to deny post-conviction relief to Coleman, who was later executed by the Commonwealth. Coleman v. Thompson, 798 F. Supp. 1209 (W.D. Va. 1992).
Regarding Blake's role in the Coleman case, the Roanoke paper notes: "Blake has had the sample in cold storage since 1990, when he was selected by Coleman's attorneys to perform DNA testing. At the time, Coleman was challenging his conviction, and his attorneys hoped technology not available at the time of his 1982 trial would clear him. It did not. Blake found that Coleman was within 2 percent of a population that could have produced the sperm sample."
Years ago, Blake's own evidence was cited by Judge Williams in support of the Court's conclusion to deny post-conviction relief to Coleman, who was later executed by the Commonwealth. Coleman v. Thompson, 798 F. Supp. 1209 (W.D. Va. 1992).
Regarding Blake's role in the Coleman case, the Roanoke paper notes: "Blake has had the sample in cold storage since 1990, when he was selected by Coleman's attorneys to perform DNA testing. At the time, Coleman was challenging his conviction, and his attorneys hoped technology not available at the time of his 1982 trial would clear him. It did not. Blake found that Coleman was within 2 percent of a population that could have produced the sperm sample."
Gilmore throws the book at Warner
The AP has this report on Saturday's remarks by former Governor Gilmore lashing out at Governor Warner.
Federal appeals court nominee went three years without a law license?
Via this post from Marcia Oddi, the Washington Post has this article ("Appeals Court Nominee Let His Bar Dues Lapse, 6/4/04) that says the new nominee to the U.S. Court of Appeals for the D.C. Circuit practiced in D.C. for three years in private and public positions while his license was suspended for not paying bar dues.
An unrelated story ("Phony Ex-Judge Receives 2 Years," 6/4/04) in the Washington Post begins: "A local businessman who has been sanctioned again and again over the past two decades for misrepresenting his legal credentials was sentenced yesterday to a two-year prison term for failing to heed earlier court orders.
It was the maximum the judge could impose and the stiffest penalty yet in the long saga of Simon Banks, 65, who kept advertising himself as a former administrative law judge, even though he had never even passed the bar."
An unrelated story ("Phony Ex-Judge Receives 2 Years," 6/4/04) in the Washington Post begins: "A local businessman who has been sanctioned again and again over the past two decades for misrepresenting his legal credentials was sentenced yesterday to a two-year prison term for failing to heed earlier court orders.
It was the maximum the judge could impose and the stiffest penalty yet in the long saga of Simon Banks, 65, who kept advertising himself as a former administrative law judge, even though he had never even passed the bar."
Correction about strange wiretapping ruling
The criminal case described in this AP article is in Greene County, not Spotsylvania County. The article says:
"The girl's father learned of the alleged sexual abuse in February 2003 when he picked up an extension phone in his bedroom and heard his daughter and her boyfriend talking about it. Greene County Circuit Judge Daniel R. Bouton ruled last week that evidence stemming from the conversation inadmissible because the call was illegally intercepted."
I wouldn't have thought that picking up the telephone extension in another room involves the use of an "electronic, mechanical or other device" in a way that could meet the definition of "intercept." Some other kind of gadget has to be used to hear the conversation for an "interception," or so I understood the law. One of the lawyers in my firm wrote this article about the Tennessee and Virginia statutes in this area a few years back.
Under Va. Code 19.2-61,
"'Intercept' means any aural or other means of acquisition of the contents of any wire, electronic or oral communication through the use of any electronic, mechanical or other device," and
"'Electronic, mechanical or other device' means any device or apparatus that can be used to intercept a wire, electronic or oral communication other than:
(a) Any telephone or telegraph instrument, equipment or facility, or any component thereof, (i) furnished to the subscriber or user by a provider of wire or electronic communication service in the ordinary course of its business and being used by the subscriber or user in the ordinary course of its business or furnished by the subscriber or user for connection to the facilities of such service and used in the ordinary course of the subscriber's or user's business. . . ."
. . .
"The girl's father learned of the alleged sexual abuse in February 2003 when he picked up an extension phone in his bedroom and heard his daughter and her boyfriend talking about it. Greene County Circuit Judge Daniel R. Bouton ruled last week that evidence stemming from the conversation inadmissible because the call was illegally intercepted."
I wouldn't have thought that picking up the telephone extension in another room involves the use of an "electronic, mechanical or other device" in a way that could meet the definition of "intercept." Some other kind of gadget has to be used to hear the conversation for an "interception," or so I understood the law. One of the lawyers in my firm wrote this article about the Tennessee and Virginia statutes in this area a few years back.
Under Va. Code 19.2-61,
"'Intercept' means any aural or other means of acquisition of the contents of any wire, electronic or oral communication through the use of any electronic, mechanical or other device," and
"'Electronic, mechanical or other device' means any device or apparatus that can be used to intercept a wire, electronic or oral communication other than:
(a) Any telephone or telegraph instrument, equipment or facility, or any component thereof, (i) furnished to the subscriber or user by a provider of wire or electronic communication service in the ordinary course of its business and being used by the subscriber or user in the ordinary course of its business or furnished by the subscriber or user for connection to the facilities of such service and used in the ordinary course of the subscriber's or user's business. . . ."
. . .
More on the Republican Party's party
The Charlottesville paper has this article ("Va. GOP gathers for convention," 6/5/04) about the Republican convention, including some discussion that only Republicans should be allowed to cast ballots in Republican primaries. The article goes on to talk about how a potential Republican candidate in 2009 impressed one commentator by the way he attracted a lot of Democratic voters. So, do Republicans want the votes of Democrats, or not?
City says response to FOIA request will cost $16,000
The Daily Press has this story ("Information request tops $16,000," 6/5/04) about a fellow in Suffolk who was told his FOIA request would cost him $16,000.
Ah, that sounds completely bogus. It is like the problem sometimes with written discovery, where one side apparently can't write out adequately what it wants and the other side apparently can't read adequately to produce what was requested. I suspect that quite a few of the 10,000 documents said to be within the scope of the FOIA request are not really within the scope of the FOIA request, or if so, the FOIA request could be easily be rewritten to get at whatever is the nub of the matter.
Nobody knows the actual cost of a FOIA response. I sometimes think the General Assembly should fix a fee schedule for FOIA responses and leave it at that, take the cost issue out of the hands of government officials who even with the best intentions can only make some wild guess. The other thing of course is that public documents ought to be available online anyway, to the maximum extent possible consistent with the constraints of cost, privacy, and security.
Ah, that sounds completely bogus. It is like the problem sometimes with written discovery, where one side apparently can't write out adequately what it wants and the other side apparently can't read adequately to produce what was requested. I suspect that quite a few of the 10,000 documents said to be within the scope of the FOIA request are not really within the scope of the FOIA request, or if so, the FOIA request could be easily be rewritten to get at whatever is the nub of the matter.
Nobody knows the actual cost of a FOIA response. I sometimes think the General Assembly should fix a fee schedule for FOIA responses and leave it at that, take the cost issue out of the hands of government officials who even with the best intentions can only make some wild guess. The other thing of course is that public documents ought to be available online anyway, to the maximum extent possible consistent with the constraints of cost, privacy, and security.
Docket control in general district court
The Norfolk paper has this article ("Traffic courts limit number of cases heard per session," 6/5/04) about new efforts to control the traffic offense docket in general district court in Norfolk.
The article says: "At the urging of Leroy Rountree Hassell Sr., chief justice of the Supreme Court of Virginia, district courts are trying to reduce the wait for cases to be called."
Chief Justice Hassell is always working on something.
The article says: "At the urging of Leroy Rountree Hassell Sr., chief justice of the Supreme Court of Virginia, district courts are trying to reduce the wait for cases to be called."
Chief Justice Hassell is always working on something.
S.C. doctor proposes at AMA convention to deny medical treatment to trial lawyers
The Richmond paper has this article ("Doctor's malpractice cure doesn't care for attorneys," 6/5/04) about a proposal at the American Medical Association convention that no doctor should treat trial lawyers.
The doctor's proposal did not mention whether coverage would be provided to the officers, directors, and shareholders of malpractice insurance companies, or whether there would be an exception for trial lawyers representing injured doctors, their spouses, children, friends, and relatives. He did leave out the children of trial lawyers.
The doctor's proposal did not mention whether coverage would be provided to the officers, directors, and shareholders of malpractice insurance companies, or whether there would be an exception for trial lawyers representing injured doctors, their spouses, children, friends, and relatives. He did leave out the children of trial lawyers.
Somebody's fooling us about the Va. Economic Development Partnership
As made plain by this article ("Wampler sees VEDP board disconnect," 6/5/04) in the Bristol paper, this article ("Wampler blames commerce secretary for bill's veto," 6/5/04) and this article ("Kilgore sides with Wampler in dispute over VEDP appointments," 6/5/04) in the Kingsport paper, either the Republican legislators or the Warner administration is making stuff up about the effect of legislation related to the membership of the board of the Virginia Economic Development Partnership and the rationale for Governor Warner's veto.
Friday, June 04, 2004
Suppression of evidence by Judge Smith of E.D. Va. reversed
In U.S. v. Foreman, the Fourth Circuit in an opinion by Senior Judge Hamilton, joined by Judge Luttig, with Judge Gregory concurring in part and dissenting in part, reversed Judge Smith's ruling on a suppression motion related to the drugs found in the defendant's vehicle.
I've got the vague impression from reading opinions over the years that Judge Smith is pretty sound.
Judge Gregory, in his separate opinion, says, among other things, "Before this case, I was not familiar with the notion that compliance with the letter of textbook driver’s education instructions would trigger police suspicion, i.e., both hands on the wheel, no rubbernecking." Judge Gregory also suspects that part of the problem on appeal was bad briefing: "the Appellee’s briefing may be partly to blame for the majority’s willingness to accept the government’s narrative."
Reading through this opinion, I wondered about the race of the defendant, and I didn't see it mentioned until I got to Judge Gregory's opinion.
I've got the vague impression from reading opinions over the years that Judge Smith is pretty sound.
Judge Gregory, in his separate opinion, says, among other things, "Before this case, I was not familiar with the notion that compliance with the letter of textbook driver’s education instructions would trigger police suspicion, i.e., both hands on the wheel, no rubbernecking." Judge Gregory also suspects that part of the problem on appeal was bad briefing: "the Appellee’s briefing may be partly to blame for the majority’s willingness to accept the government’s narrative."
Reading through this opinion, I wondered about the race of the defendant, and I didn't see it mentioned until I got to Judge Gregory's opinion.
More on the statute of limitations for post-contractual section 1981 claims
Following the Supreme Court's decision in May in the case of Jones v. R.R. Donnelley & Sons, Co., the Fourth Circuit in James v. Circuit City Stores, Inc. held in an opinion by Judge Williams, joined by Judge Widener and Judge Motz, that claims under section 1981 "alleging discrimination after the formation of the employment relationship (post-formation conduct claims)" are subject to the four-year statute of limitations under 28 U.S.C. 1658.
This conclusion does not, I would argue, and have argued, reach claims that allege discrimination in the formation of the employment relationship, for which I think the two-year statute applies.
In Williams v. Giant Food Inc., the Fourth Circuit in an opinion by Judge Shedd, joined by Judge Duncan with Judge Widener concurring, did not apply or discuss holding in Jones, for reasons unknown, but then ruled that summary judgment should have been denied on the merits with respect to discrimination within the limitations period, which makes me wonder - how will the district court deal with limitations on remand, if at all.
This conclusion does not, I would argue, and have argued, reach claims that allege discrimination in the formation of the employment relationship, for which I think the two-year statute applies.
In Williams v. Giant Food Inc., the Fourth Circuit in an opinion by Judge Shedd, joined by Judge Duncan with Judge Widener concurring, did not apply or discuss holding in Jones, for reasons unknown, but then ruled that summary judgment should have been denied on the merits with respect to discrimination within the limitations period, which makes me wonder - how will the district court deal with limitations on remand, if at all.
Virginia parties set to party
Hugh Lessig of the Daily Press has this piece ("In Richmond and Roanoke, it's schmooze time," 6/4/04) on the upcoming state party conventions in Virginia.
Fiber-optic connections in Scott County
The Kingsport paper reports here ("High-speed Internet coming to rural Scott County homes," 6/4/04) that the Scott County telephone co-op is receiving a federal grant to bring fiber optic connections to some homes in Scott County.
Thursday, June 03, 2004
Man who ran after trooper with skillet ruled insane
The Winchester paper has this report ("Judge Finds Skillet-Wielding Attacker Insane," 6/3/04) on the successful insanity defense in a Frederick County case for a man who tried to clobber a state trooper with a skillet.
Losers in court, anti-loggers turn to civil disobedience training
The AP reports here that opponents of logging in the Jefferson National Forest in Southwest Virginia are learning civil disobedience techniques to fight logging.
One step over the line
This Washington Times editorial calling for the impeachment of the federal judge who ruled against the federal Partial-Birth Abortion Act goes off in the wrong direction. It is difficult to expect that many trial court judges, negotiating the grisly appellate precedents and expert testimony on this subject, would have ruled differently.
More and more candidates for 2005
This Washington Post article ("Lines Forming for '05 Va. Candidates," 6/3/04) studies the list of likely and unlikely statewide candidates for 2005.
Accused mouse planters protest their innocence
The Norfolk paper reports here ("Mother, son deny placing mouse in soup," 6/3/04) that the mother and son accused of planting a mouse in their soup at the Cracker Barrel say they didn't do it.
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