The Legal Reader^™

A Spy Mission With a Two-Drink Minimum

Dennis Sichner traveled 400 miles to hang out at a Washington, D.C. bar on a Sunday night. There were $3 beers, 40 to 60 men and women, and a local bluesman playing three sets that evening. None of that mattered to Sichner.

After waiting nearly four hours -- and with just 10 minutes until closing time -- the saxophonist from Cleveland got what he came for when three Stevie Wonder songs played over the house sound system.

Sichner was a spy for a coalition of music publishers looking to make a copyright infringement case against Madam's Organ, a popular bar in Northwest Washington. And Wonder's songs apparently did the trick.

Earlier this month, a federal judge in the District ordered Madam's Organ to pay $15,000 in damages to two publishing companies for the violations, as well as $2,500 in court costs.

Madam's Organ may also have to pay $63,000 in attorneys' fees, which it says might force it to close.

Not surprisingly, folks at Madam's Organ aren't happy. "This was a shakedown," says Madam's Organ manager, William Duggan, adding that the bar may be forced to close if ordered to pay $60,000 in legal fees. "Their intention is to make a hardball example out of us and scare the shit out of everyone else."

The case also exposes the vulnerability of establishments that play music to a paying -- or dancing -- audience. Duggan of Madam's Organ argued in court papers that there were no copyright violations because the bar subscribes to Music Choice, a cable music service provider. Kollar-Kotelly, however, ruled that the copyright protections offered through Music Choice did not extend to places that charge an admission fee or allowed dancing. The judge found that Madam's Organ had done both.

Did you know that any establishment that has paying customers is violating the law if it plays copyrighted music without a license? And that includes playing a radio recieving a commercial station. In fact, that is the raison d'etre for the famous Muzak Corporation.

Details here from Legal Times via Law.com.

Lawyer Accused of Stealing From the Poor

SAN FRANCISCO, California (AP) -- Russian emigre Nikolai Tehin put himself through law school and apparently obtained the American dream after three decades of lawyering: a 73-foot yacht, a seemingly endless fleet of luxury cars and an $8 million home.

But the rags-to-riches saga could end in federal prison for the now-disgraced and disbarred attorney. Tehin's fraud trial was scheduled to begin Monday and he faces more than 20 years in prison if convicted.

Details here from the AP via CNN.com. An earlier post about Mr. Tehin is here.

Judge Charged After Calling Unwed Mom 'Disgrace To Society'

ORLANDO, Fla. -- A judicial panel has charged an Orange County judge with chastising a deputy sheriff who had a child out of wedlock, saying she was a "disgrace to society," "had no morals," and her child was "a bastard."

Judge Alan C. Todd, a judge for 14 years, was charged with making a series of "rude, intemperate and demeaning comments," according to the six-page notice released Wednesday by the state Judicial Qualifications Commission.

After discovering in January that Orange County Deputy Sheriff Mindy Hood was an unwed mother, Todd told her "it is acceptable for a male to have sex before marriage, but if a female does so, she is not respected and considered a tramp," according to the notice.

Apparently, it is still about 1920 in Orange County, FL. Details here from Local6.com.

Court Nixes Federal Judge's Copied Ruling

They try to drill it into you in elementary school: No copying other people's homework. But apparently a federal judge in western Pennsylvania didn't get the message.

A federal appeals court on Tuesday tossed out a ruling issued last year by U.S. District Judge Arthur J. Schwab after ruling that the judge had copied his opinion, nearly word-for-word, from a memorandum written by one of the attorneys in the case.

The 3rd U.S. Circuit Court of Appeals said Schwab made only two substantive changes to the memo, other than minor changes for grammar and style, then signed it as his own opinion.

In doing so, the court said, Schwab failed to show that he put the necessary thought and jurisprudence into the ruling.

The Court wrote:

We have held that the adoption of proposed findings of fact and conclusions of law supplied by prevailing parties after a bench trial, although disapproved of, is not in and of itself reason for reversal. . . . Here, however, we are not dealing with findings of fact. Instead, we are confronted with a District Court opinion that is essentially a verbatim copy of the appellees’ proposed opinion. . . . When a court adopts a party’s proposed opinion as its own, the court vitiates the vital purposes served by judicial opinions. We, therefore, cannot condone the practice . . . .

Put that in your pipe and smoke it. The AP's report is here via Findlaw.com. Or you can read the Third Circuit's Opinion. (via el rita)

UPDATE: The Legal Intelligencer is now reporting: 3rd Circuit Sees Through 'Ghostwritten' Opinion.

F-Bomb-Dropping Attorney Gets Worldwide Notoriety

So much for professional courtesy.

A Chicago lawyer's expletive-filled phone message circulating on the Internet is providing fresh evidence to those who say lawyers' standards of behavior are eroding.

In the voice mail, Winston & Strawn associate Ankur Gupta criticizes another lawyer for failing to make changes to a document in a real-estate deal.

"If you send one more f---ing e-mail message again, I can assure you your life on this deal is going to be very unpleasant.. . . Whether you consider it material or not, again, I don't give a flying f---. Make the f---ing change," Gupta said.

As reported here by the Chicago Sun-Times. The message has been posted at KinsellaLaw.com.

Say Hello to SFist

A hearty welcome to SFist ("EssEffist"), a recent addition to the growing family of "ist" blogs now including Gothamist, LAist, Chicagoist, DCist, and (ba-da-boom!) SFist.

In its own ponderous, breathy words: "Sfist is a website about San Francisco."

If you want to know what is (or isn't) happening and where, read SFist. If you have an overwhelming penchant to be groovy (a.k.a. "ice"), read SFist. SFist knows where you want to be, where you should have been, and where you can't remember being. SFist believes before knowing remembers. Believes longer than recollects, longer than knowing even wonders.

Uhhh . . . . Whatever.

Holy Truffled Scallops, Batman -- Restaurant Sues Reviewer!

Three of my favorite things are newspapers, restaurants, and strange lawsuits. Now they're all rolled into one in this juicy nugget of salacious goodness!

Restaurateur Phil Romano wants to put a few people on notice, namely Dallas restaurant critics. Romano is mad as hell, and he's not going to chew their tripe anymore. To prove he means business, last week Romano slapped Dallas Morning News restaurant critic Dotty Griffith and the Belo Corp., the newspaper's parent, with a suit alleging fraud, malice, defamation and an "attempt to cripple the business of one of Dallas' finest new restaurants" via an April 16 restaurant review. That finest new restaurant is Il Mulino New York, the Romano-shepherded Dallas extension of the much heralded Greenwich Village venue founded in 1981 by Fernando and Gino Masci.

What did Griffith do to stoke such wrath? She awarded Il Mulino four out of five stars (3.5 for food). But what steams Romano is the apparent disconnect between that row of stars and the supporting narrative in Griffith's review. "With what she said about Il Mulino, I shouldn't have gotten any stars," Romano argues. . . .

[R]omano cites a handful of instances to justify his ire. In the review, Griffith posits that Il Mulino's spaghetti Bolognese and penne with tomato vodka sauce are overwrought with butter (not a drop of butter in there, Romano insists); that the risotto is partially cooked in advance and then finished to order (a "scandalous accusation," bristles the suit); and that the porcini-stuffed ravioli with champagne truffle sauce "whispered of Gorgonzola" (no Gorgonzola in the dish, Romano says, though more than a few ingredients could arguably speak in such tangy tones).

Yet it would be ludicrous to file a fraud/defamation/malice suit based on possibly mistaken sauce and rice-prep impressions. So, Romano adds a couple of other charges. . . .

[R]omano says he had no choice but to file a lawsuit. The News refused to print four letters to the editor challenging Griffith's assessment of Il Mulino, and the paper declined to issue a correction. A lawsuit was his only recourse, he says. But his story isn't the only thing he wants to get out. He wants to keep Dallas Morning News writers out of his establishments, which include Nick & Sam's and Medici in addition to Il Mulino. "One of the things I'm gonna want out of this is an injunction to keep them out of my restaurants," Romano pledges. "They can't do it right. I don't want them in there."

Obviously, there was no option but to sue. Allegations of butter in the Bolognese?! Gorgonzola in the porcini-stuffed ravioli??!! What's next? Slanderous hints of cardamom in the duck l'orange? Mon dieu!

Details here from the Dallas Observer. Obviously, an injunction must issue. Forthwith!

Talk about your "imminent and irreparable harm"! We can't very well have these unwashed newspaper people running amok, willy-nilly printing things about imaginary "whisper[s] of Gorgonzola"!

Gamblers: Odds Are Scott Peterson Is Guilty of Murder

Legal experts and trial watchers continue to speculate on the outcome of the Scott Peterson murder case. But what about those willing to lay down money on their opinions? What do gamblers see in store for the fertilizer salesman?

Judging by Vegas odds, Peterson will be found guilty.

"For the past few months, the lines have favored a guilty verdict for Scott Peterson," said a gambling agent at BetOnSports.com.

The British online gaming site, which maintains an office in Costa Rica, gets its odds from bookies in Las Vegas.

Details here from CourtTV.com.

Dirty Little Secrets: GCs Reveal Outrageous Bills

Want proof that human beings can transmute into fire-breathing dragons? Just ask general counsel about the most outrageous bills they've received from firms.

Some great examples are provided here from Corporate Counsel. (via The Blawg Channel)

A Year Out of Law School, Lawyer Tackles City Hall

Lawrence Williamson Jr., the lawyer representing female and black officers in discrimination allegations against the Wichita [KA] Police Department, is 27 and little more than a year out of law school.

But already he has taken on City Hall, rejected an offer to join a top local law firm, opened his own law office and earned an acquittal for a white supremacist.

Bearded, pensive and enthusiastic about the law, Williamson -- one of the city's few African-American lawyers -- gained attention three weeks ago when he filed a lawsuit against the Police Department on behalf of four female officers. They are alleging sexual harassment, as well as unequal treatment in pay, assignments and promotions.

Two weeks later, he created more headlines when he announced he also was representing 30 to 40 black police officers alleging discrimination. Their charges include racial slurs, a lack of backup from white officers during calls and a lack of promotions. . . .

Dan Monnat, one of the city's most respected criminal defense lawyers, said Williamson is not afraid to take on a high-profile case.

"He's a very smart, absolutely up-to-date, aggressive young lawyer," Monnat said. "He has very impressive academic credentials. He was very well respected by his law school professor. That's why I knew that when he filed that lawsuit, it was filed by somebody who knew what they were doing."

Details here from The Wichita Eagle.

Judge Allows Disks in Porn Case

This is unbelievable:

A 28-year-old St. Charles [IL] man will head to a child pornography trial partly because he chose not to keep his own house clean.

Kane County Judge Patricia Piper-Golden agreed to allow evidence picked up by Charles E. Clendenin's housekeeper at his trial. . . .

According to court documents, Clendenin gave a key to his neighbor to clean his house while he was away on a work trip in August 2003. While in the house, the woman started snooping around. She looked through a closed computer case full of unmarked computer disks and took several home with her to peruse.

She found what she thought was child pornography and took it to West Chicago police where she knew people, according to court filings.

After reviewing the disks, West Chicago police called St. Charles police, who initiated a search of Clendenin's apartment without a warrant, according to court documents filed by the defense.

[Clendenin's Attorney Larry] Wechter has argued that because the housekeeper had no right to the disks, the police couldn't base an investigation on their contents.

Prosecutors, on the other hand, claimed that because the housekeeper wasn't working for the police she didn't have to follow the same privacy rules of the police, such as needing a warrant to take the disks.

Not that I'm a fan of child porn or those who use it, but it sounds like Mr. Clendenin has good grounds for a civil suit against his housekeeper for conversion and invasion of privacy. Discuss among yourselves. Details here from Chicago's Daily Herald.

Federal Judge Dismisses Kindergartner's Suit Against School for Censoring His Picture of Jesus

SYRACUSE, N.Y. -- A federal judge's decision to dismiss a freedom-of-speech lawsuit over a kindergartner's picture of Jesus in a school assignment about the environment is "not only unconstitutional, it's unconscionable," the family's attorney said Friday.

It is the second time U.S. District Court Judge Norman Mordue has thrown out the 1999 lawsuit brought by student Antonio Peck and his family against the Baldwinsville Central School District. . . .

The Peck family accused the Baldwinsville Central School District and the Catherine McNamara Elementary School of violating Antonio's constitutional rights by censoring a poster he made because it contained a religious drawing. . . .

The incident occurred in June 1998, when Antonio and his classmates were given an assignment to create a poster about the environment.

Antonio submitted a crayon drawing of children picking up garbage and putting it in trash cans, a man and a woman dropping trash into a recycling bin and a picture of a globe with cutout children holding hands circling it. Off to one side was a man in a flowing robe kneeling down with both hands outstretched to the clouds above. . . .

School officials displayed the poster, but it was folded in half so that the picture of the robed man was not visible. Teacher Susan Weichert and Principal Robert Creme objected to the poster because they said it promoted one religion over another and could offend others.

Details here from the AP via Newsday.com.

"Fajitagate" Case To Be Moved from San Francisco

SAN FRANCISCO (AP) - A San Francisco judge has agreed to move the trial of the son of the city's former police chief and two others facing assault charges. Superior Court Judge Kay Tsenin ruled Friday that Alex Fagan Jr., the son of former police chief Alex Fagan Sr., along with David Lee and Matthew Tonsing, will not be tried in San Francisco.

The three face assault charges stemming from a November 2002 street brawl, when Fagan Jr., then a rookie officer, and the two other officers were arrested for getting into an off-duty fight with two men over a bag of steak fajitas.

The incident became known as "fajitagate" after a grand jury last year issued conspiracy indictments for the elder Fagan, who was then the second-ranking officer in the San Francisco Police Department, then-police chief Earl Sanders, and five other high-ranking officials.

The charges against the seven police leaders alleging they conspired to cover up the fight were eventually dropped.

Details here from the AP via The Bakersfield Californian.

Bad News for Bad Lawyers

Getting bad lawyers out of the legal profession isn't cheap. Just ask State Bar of California officials who have calculated that policing their own puts the agency in a financial hole to the tune of about $600,000 a year.

But that might be changing soon as agency leaders push aggressive new measures that could force errant attorneys to pay a substantial portion of the costs of their own prosecution in State Bar Court.

Details on this controversial proposal are here from The Recorder via Law.com.

Why Prosecutors Should Dismiss Bryant Case

Jury selection is in the sexual assault case pending against NBA superstar Kobe Bryant is slated to begin on August 27.

Given the time pressure, you might think prosecutors would be busy lassoing last minute witnesses, marshaling their evidence, and generally making final preparations in such a high profile, high stakes case. . . .

But if you thought that, you'd be wrong. Despite thirteen months of preparation -- which included nearly twenty days of pre-trial hearings, as well as over seven hundred filed court pleadings -- prosecutors have abruptly tried to put on the brakes. . . .

At this point, with trial impending, the smartest thing for prosecutors to do now would be to dismiss their case outright. But if they do, should Bryant rejoice? One might think the words "case dismissed" would be music to Bryant's ears. But for reasons, I will also explain, that's not the case.

Details here from Findlaw's Jonna M. Spilbor via CNN.

9th Circuit: Grokster Not Liable for Copyright Infringement

This appeal presents the question of whether distributors of peer-to-peer file-sharing computer networking software maybe held contributorily or vicariously liable for copyright infringements by users. Under the circumstances presented by this case, we conclude that the defendants are not liable for contributory and vicarious copyright infringement and affirm the district court’s partial grant of summary judgment.

So says the 9th Circuit this morning in MGM v. Grokster.

Say Hello to "I'm a PD"

I first found and blogrolled this blawg a few weeks ago and I've been reading it ever since. It's really a great read. If you are a would-be or beginning criminal defense lawyer, you need to read it. I'm a PD is nice work. You go, girl!

Md. Judge Acquits College Football Player

OCEAN CITY, Md. - A judge, while acknowledging he believed a college football player was "guilty as sin," acquitted him of charges related to a run-in with police after a lawyer argued that a conviction could end the player's career.

Gregory D. Powell, 20, was charged with assaulting police and disorderly conduct after a June disturbance at a motel where police had ordered underage drinkers to pour out their beer. . . .

"Son, you are about to get an early Christmas present, because I know what effect a probation would have," Hayman told the defendant Monday. "And it is a gift, because you are guilty as sin. I'm going to find you not guilty."

Although his "crime" doesn't sound very serious, I have issues with a judge who could say: "[B]ecause you are guilty as sin. . . , I'm going to find you not guilty." Details here from the AP via the Ledger-Enquirer.

Falwell's New Law School to Teach Integrating Faith with Law

ROANOKE, Va. -- The Rev. Jerry Falwell will open a law school this month in hopes of training a generation of attorneys who will fight for conservative causes.

"We want to infiltrate the culture with men and women of God who are skilled in the legal profession," Falwell said in a telephone interview Tuesday with The Associated Press. "We'll be as far to the right as Harvard is to the left."

Graduates of the law school--part of Falwell's Liberty University in Lynchburg, which is affiliated with his Baptist ministry--could tackle such issues as abortion rights and gay marriage, Falwell said. Classes begin Aug. 23 for the first-year class of 61 law students. . . .

[F]alwell said his law school will be similar to its Christian-leaning counterparts like Regent University in Virginia Beach, which religious broadcaster Pat Robertson founded.

There are now multiple right-wing fundamentalist Christian law schools in this country???!!! Chrikey! Details here from the AP via the Virginia Daily Press. (via How Appealing)

Public Defender Collared For Coke Found In Purse

A managing attorney for the San Francisco public defender's felony unit was arrested for a felony -- allegedly carrying cocaine in her purse. Marla Zamora, a longtime deputy public defender and onetime judicial candidate, was arrested at a domestic terminal checkpoint at San Francisco International Airport Aug. 7. She was found with a "small amount" of suspected cocaine, booked and released on $10,000 bail. It's unclear what, if any, consequences Zamora could face at work as a result of the arrest.

The blurb above is from CalLaw.com, but you can't read the whole article unless you are a paid subscriber of San Francisco's The Recorder.

UPDATE (8/17): More details are available here (though still not the whole story). For example:

According to the San Francisco Chronicle, which reported the arrest Saturday, Zamora told police that she thought the package in question was a small bag of silica used to preserve leather goods.

And I'm the Queen of Sheeba! The referenced story from the San Francisco Chronicle is here.

Little Relief for Victims of Ex-Lawyer

From the beginning, the case against disbarred Camden County [PA NJ] lawyer Dennis O'Brien was unlike any other faced by prosecutors. And authorities say it has required an equally "unique response."

O'Brien, who built a practice around a reputation as a church-going family man, pleaded guilty last August to stealing $2.5 million from 33 clients, including $850,000 from an autistic Audubon man. The total amount stolen, officials have discovered, has risen to $2.75 million from 39 clients.

This Friday, he faces sentencing for those thefts, mainly from elderly, grieving and disabled people who named him guardian of their estates or entrusted him with other financial accounts.

Details here from The Philadelphia Inquirer. (free reg. req'd) May he burn in hell if he has done what he is accused of.

Shark Fin Traders Lose Lawsuit Against Wildlife Group

BANGKOK (AFP) - An alliance of Thai shark fin traders lost a 110 million baht (2.6 million dollar) lawsuit they filed against a wildlife group which claims the Asian delicacy is putting both sharks and consumers at risk.

The US-based conservation group WildAid was hit by the lawsuit three years ago after claiming the delicacy was behind a worldwide decline in shark numbers and that toxic levels of mercury stored in the fins posed a hazard to consumers.

A group calling itself the Bangkok Association of Shark Fin Restaurants had accused WildAid of damaging their businesses through the awareness campaign.

Hailing Monday's decision as a major victory, WildAid said the ruling would now legally allow the group to renew its campaign to have shark fin banned from Thai dinner tables.

Details here from Yahoo! UK News.

Oprah Winfrey a Juror in Chicago Murder Trial

CHICAGO, Illinois (Reuters) -- U.S. television talk show host Oprah Winfrey was picked to serve on a jury in a murder trial Monday, court officials said.

"It's not every day that you have a celebrity on a jury," a spokesman for the Cook County prosecutor's office in Chicago said.

For daily pay of $17.20, the billionaire Chicago resident will travel from her tony North Side apartment to the grubby courthouse on the city's South Side.

Winfrey will help decide whether Dion Coleman is guilty of shooting to death Walter Holley after a dispute over a counterfeit $50 bill Holley had accused Coleman of passing.

Details here via CNN.com.

UPDATE: Oprah and fellow jurors find Chicago man guilty of murder. That didn't take long . . . . (via TalkLeft)

Speculation Mounts Regarding Kobe Dismissal

DENVER (AP) -- With Kobe Bryant's sexual assault trial scheduled to begin in less than two weeks, speculation is mounting that prosecutors are looking for a way to dismiss the charge after a series of setbacks.

The NBA star is due in court Monday in Eagle, his final court appearance before jury selection begins on Aug. 27.

But events of the past two weeks suggest prosecutors might be seeking an avenue to dismiss the charge with minimal embarrassment, legal experts said.

Details here from Sports Illustrated. (As predicted earlier here.)

Korean Lawfirm Brings Charges Against "Netizens" for Copyright Infringement

According to a report by Munhwa Ilbo on Thursday, Dongnyuk Law firm plans to bring charges against 20 Korean Internet users for violating copyright laws. Those netizens are accused of downloading and sharing singer Baek Ji-young’s music video “Concert for Adults” and several movies -including “Kill Bill 2”, “The Grudge 2”, and “Shin Yukiguni”- on the Internet without permission.

The law firm is entrusted in dealing with criminal lawsuits relating to copyright infringement by Digitalprizm, the copyright holder of Baek Ji-young’s music video; Taewon Entertainment, the company that imported “Kill Bill 2” and “The Grudge 2”; and Hanmaek Entertainment, the representative company for the Korean Film Producer Association.

The Munhwa Ilbo report cited the firm’s lawyer Jo Myun-sik saying, “We confirmed that as many as 3,500 Korean Internet users have violated the copyright law. We sent the certification of contents to a 100 of them, and we are initiating procedures to negotiate with them. But 20 refused to negotiate, so we made criminal complaints against them.”

Put that in your pipe and smoke it. Details here from The Chosun Ilbo.

Big Tobacco in the Dock as America Prepares for Biggest Ever Lawsuit

The tobacco industry will face its biggest legal challenge yet next month, when it will finally appear in the dock to fight a $280bn claim from the US Government for deceiving the public over the health risks of smoking for more than 50 years.

It is the largest suit ever launched by the Department of Justice and promises to reveal whether scientific research on nicotine was withheld, destroyed and ignored by a number of companies in a conspiracy designed to keep "profits above the public health", dating back to 1954. . . .

[T]hese giant corporations stand accused of conspiring to wilfully mislead the public over the health dangers of smoking in a pact that began in January 1954. The US Department of Justice claims that a group of chief executives met at the Plaza Hotel in New York to agree a "long-term public relations campaign based on fraud and deception". It is claiming $280bn from the past profits of these companies on racketeering charges, making it the largest case of its kind in history.

The trial is set to begin on September 13 in Washington, DC. Details here from the Independent.co.uk.

Judge Upholds Virginia's Anti-Spam Law, Setting Up Trial

RICHMOND — A Loudoun County [VA] judge on Friday upheld the constitutionality of Virginia's law against fraudulent, unsolicited bulk e-mail, commonly known as spam, state Attorney General Jerry Kilgore said.

The ruling by Circuit Judge Thomas D. Horne came in the nation's first challenge of a felony spam statute, Kilgore said. The decision clears the way for a jury trial for Jeremy D. Jaynes of Raleigh, N.C., and his alleged co-conspirators in one of the world's most prolific spamming operations.

"This case establishes valuable case law for other judges to follow in the fight against spam in the commonwealth and across the United States," Kilgore said.

Jaynes and Richard Rutkowski of Cary, N.C., were indicted in December, becoming the first people in the U.S. charged with felonies accusing them of sending unsolicited bulk e-mails. Virginia prosecutors charged them under a tough new state anti-spam law that took effect July 1, 2003.

They face up to 20 years if convicted. Details here from the AP via the Virginian-Pilot.

'Antagonistic Motions' Spark Retort From Judge

Kindergarten is the time when 5- and 6-year-olds learn some important life skills, such as how to print their full names, how to share and take turns, and how to get along with others.

Lawyers practicing in Texas are way past kindergarten, but U.S. District Judge Sam Sparks of Austin said in a recent order that he feels like he is supervising kindergarten because lawyers involved in a civil suit in his court are acting like they never learned how to get along with others.

Sparks didn't send the lawyers back to kindergarten, but he did threaten to order the parties in Klein-Becker, LLC, et al. v. William Stanley, et al. to find new lawyers "if the lawyers in this case do not change, immediately, their manner of practice and start conducting themselves as competent to practice in the federal court."

Details, including the text of the Order, are here from Texas Lawyer via Law.com.

Cal. Supreme Court: Same Sex Marriages Void

The court's opinion has been published.

It held: What Mayor Newsom did was illegal and violated the separation of powers. Moreover, all of the issued marriage licenses are VOID. The opinion totals 114 pages.

J. Moreno concurs separately. J. Kennard concurs and dissents separately (shouldn't void licenses ab initio). J. Werdergar concurs and dissents separately (shouldn't void licenses).

More later. . . .

UPDATE: The Recorder's coverage is here via Law.com.

Former RI Mayor Cianci Loses Bid to Void His Conviction

Ever since his stunning corruption conviction two years ago, Vincent A. "Buddy" Cianci Jr. had held out hope for his appeal, hope that has nurtured him over the past 20 months in prison.

But hopes for another Cianci comeback, in a storied career of comebacks, suffered a devastating blow yesterday, when a federal appeals court in Boston upheld the former Providence mayor's conviction for racketeering conspiracy.

The long-awaited decision was not without some classic Cianci drama, as one of the three judges dissented and said that he would have overturned the conviction.

But in the end, Cianci -- who was unbeaten in six races for mayor, winning once by 709 votes and another time by 317 votes -- didn't have the votes.

In a 2-1 decision, the 1st U.S. Circuit Court of Appeals ruled that there was sufficient evidence to convict the longest-serving mayor in Providence history of running a criminal enterprise out of his corner office at City Hall.

You can find more of the above from the Providence Journal. (link via Bashman)

I lived in Providence for many years, so this story is particularly interesting to me. If you want the details, check out this fascinating recent book:

Details about the book here: The Prince of Providence: The True Story of Buddy Cianci, America's Most Notorious Mayor, Some Wiseguys, and the Feds

Boies' Bid for Massive Class Fails

The cards came up lucky for dozens of casino owners Tuesday when the 9th U.S. Circuit Court of Appeals denied class status to video poker players who claimed their electronic cards were marked -- by computer programmers.

The court held that class status wasn't possible because the nature of gambling made each claim of financial loss uniquely individual and, therefore, not based on any common misrepresentation by the casinos.

"As the unique facts of this case demonstrate," Judge M. Margaret McKeown wrote, "'the infinite variety of claims that may arise make it virtually impossible to announce a black-letter rule that will dictate the result in every case.'"

Judges J. Clifford Wallace and Consuelo Callahan joined in the ruling.

It was a rare defeat for "David Boies -- who took on Bill Gates and Microsoft on behalf of the U.S. Department of Justice, represented Napster in its Internet music fight, and litigated on behalf of Al Gore in the 2000 Florida election recount . . . ." But it was a big win for the casinos: "[T]he proposed class would have encompassed nearly everyone who had played video poker or electronic slot machines at more than 60 casinos within the past 15 years."

Details here from The Recorder via Law.com.

Kobe Bryant's Alleged Victim Files Civil Suit

The Smoking Gun has a copy of the civil lawsuit, filed today, at this link. Interestingly, it was filed in Federal District Court, not state court, under diversity jurisdiction. It alleges a single cause of action for sexual assault. It does not specify an amount of damages, other than that they exceed $75,000.

Could this be the prelude to dropping the criminal prosecution?

Giggling Drunk Lawyer Delays Hearing

HONG KONG (AP) -- A visibly drunk prosecutor who was giggling uncontrollably prompted a halt in a sentence hearing and later posed for journalists outside the courthouse as Auguste Rodin's sculpture ``The Thinker,'' newspaper reported Tuesday.

A judge was forced to call a two-minute recess after Roderick Murray, a government prosecutor, put on sunglasses, giggled, clapped his hands and drummed his fingers on the desk during the session at Hong Kong's District Court on Monday, the South China Morning Post and the tabloid The Standard reported.

Judge Chua Fi-lan then sought help from a defense lawyer to ``assist'' Murray in controlling himself, The Standard said.

Murray, who witnesses said smelled strongly of alcohol as he staggered into court, later admitted to reporters that he had consumed two dry martinis and a number of beers before attending the hearing, the Post said.

Details here from the AP via The New York Times.

Without Access to Lawyers, Three Accused Drug Dealers in Mass. Are Freed

A judge Monday freed three accused drug dealers because they hadn't seen a lawyer for weeks, and charges against them could be dropped. A prosecutor warned he was "concerned about the safety of the community."

Superior Court Judge Peter Velis' decision followed a Supreme Judicial Court ruling in July that defendants held for more than seven days without seeing a lawyer must be released -- and that charges must be dropped against those who haven't had access to an attorney for more than 45 days.

The defendants had been in jail without seeing lawyers for 88, 105 and 126 days, respectively. "The issue stems from a standoff between court-appointed attorneys and the court system over how much lawyers are paid for representing poor defendants." Details here from the AP via the San Francisco Chronicle.

Charges Filed Against Private Eye in Scott Peterson Case

Prosecutors filed criminal charges against a New York private investigator Friday, accusing him of passing himself off as a peace officer while poking around Modesto looking for leads in the Laci Peterson case.

Scott H. Bernstein -- who has appeared on news and entertainment TV shows including "60 Minutes" and "Rivera Live" -- is facing five felony and six misdemeanor charges.

He must surrender to Stanislaus County Superior Court on Sept. 8.

"Whatever he said to people, and whatever he showed them as a badge, gave them the distinct impression that he was an officer," Chief Deputy District Attorney John Goold said.

Details here from the Modesto Bee.

GOP Sen. Comes to U.S. Attorneys' Defense

In blunt, private letters, the Senate Finance Committee chairman has told Attorney General John Ashcroft he believes the Justice Department has retaliated against prosecutors in a Detroit terror trial because they cooperated with Congress.

Sen. Charles Grassley, R-Iowa, has written Ashcroft or his deputies at least three times to accuse department officials of taking "hostile actions" and "reprisals" against the trial prosecutors. . . .

"[F]ederal law provides individuals who are congressional witnesses or assisting congressional investigations protection from retaliation," Grassley wrote.

Details here from the AP via My Way News.

The Shield That Failed

Dahlia Lithwick's first column as a guest columnist appears in todays Sunday New York Times. It's an interesting piece on the troubling aspects of rape shield laws. (via Volokh)

Ninth Circuit Orders Man Released In Medical Pot Case

SAN FRANCISCO -- A Chico man who claims the marijuana he grew was for medical purposes is hoping to be released from prison on bail this week following the order of a federal appeals court in San Francisco.

Bryan Epis, 37, is appealing his conviction and 10-year sentence for conspiring to grow more than 1,000 marijuana plants near a school. He has been in prison since being convicted in federal court in Sacramento in 2002.

On Friday, the 9th U.S. Circuit Court of Appeals in San Francisco ordered Epis released on bail until his appeal is decided.

Details here from NBC11.com, or read the Court's Order here.

Biographer Sees Thomas As Chief Justice

Clarence Thomas has been interviewed by White House lawyers as a possible choice to be the next chief justice of the United States, says the author of a new biography.

Thomas says he isn't interested but could find it hard to turn down an opportunity to be the first black man to lead the Supreme Court, said biographer Ken Foskett.

"Judging Thomas," out this week from William Morrow, traces Thomas' life from rough beginnings in rural Georgia, through Yale Law School to his life today.

I thought the familiar phrase was "doubting Thomas," not "judging Thomas." In any case, it won't happen if you vote for Kerry. Details here from the AP via FindLaw.com.

State's Law Students Get Free Pass on Bar Exam

Despite detractors, age-old privilege likely to remain

After years of schooling and months of cramming, more than 150 would-be Wisconsin lawyers converged on Madison last week to take the bar exam, just like aspiring attorneys in every other state.

But no one from the law schools at Marquette University or the University of Wisconsin was among them.

It's the same way nearly every year, thanks to one of the first legalities that students at both schools commit to memory: Wisconsin is the only state in the country to maintain a "diploma privilege" that exempts most graduates of the state's law schools from taking the bar exam.

This means nearly two-thirds of Wisconsin's 21,000-plus licensed attorneys never had to take the state bar exam, including 33 of Milwaukee County's 47 circuit judges, six of the seven state Supreme Court justices, Mayor Tom Barrett and Attorney General Peg Lautenschlager.

I never knew that . . . . Details here from the Milwaukee Journal Sentinal. (via How Appealing)

Haidl Mistrial Results in Shift of Tactics

SANTA ANA [CA] – Prosecutors streamlined their case Friday against three teenage boys accused of filming the gang rape of an unconscious teenage girl by dropping 15 of 24 felony counts, potentially giving the defendants a shot at probation if convicted at a second trial.

Chief Assistant District Attorney Charles J. Middleton, who joined the prosecution's trial team, said his office wanted to simplify the case against Gregory Scott Haidl – the son of an assistant sheriff – Kyle Joseph Nachreiner and Keith James Spann, all 19, after the first trial ended with a hung jury in July.

The nine remaining charges, including rape, oral copulation, sexual penetration with a foreign object and assault, could lead to a maximum 23-year prison sentence if a jury convicts on all charges.

Details here from the Orange County Register. (via How Appealing)

Mom Awarded $1 Million Over Embryo Mix-Up

A Campbell [CA] woman who gave birth to a baby boy through in vitro fertilization has won a $1 million settlement from the fertility doctor who implanted her with the wrong embryos and then failed to tell her of his error until nine months after the baby was born.

Details here from the San Francisco Chronicle.

New Blawg

Check out Law under the Microscope, born just last Friday, and already discussing "News, updates and ruminations on legal and regulatory developments related to the life sciences, bioagriculture and nanotechnology." Best of luck!

S.F. Lawyer Accuses Baker & McKenzie of Stealing Client

A San Francisco lawyer is accusing Baker & McKenzie of stealing his client after the megafirm agreed to handle a small task for him in Taiwan.

Douglas Akay, of the two-attorney Akay & Associates, says that he filed a suit for shareholders in a noodle restaurant chain in 2002. Due to the challenge of serving foreign parties, Chicago-based Baker & McKenzie was enlisted to serve several of the defendants in Taiwan, as well as a few in the British Virgin Islands and Bermuda, according to a complaint Akay filed Monday in San Francisco Superior Court.

The problem for Akay came, according to his allegations, when the bigger firm bad-mouthed him and seduced his clients away -- and earned more than $1 million in fees from the business. He's named Baker & McKenzie as well as two partners in the firm's San Francisco office, Christopher Van Gundy and Bruce Jackson, as defendants.

Details here from The Recorder via Law.com.

Lawyer's Joke Earns Reprimand from Court

Jim Carpenter insists it was just a practical joke.

Three years ago, the Grant County lawyer impersonated a former classmate who is now a coach and counselor at a local high school and posted the following message on an Internet bulletin board.

"Hey all! How is it going. I am married to an incredibly beautiful woman, AND I get to hang out with high school chicks all day (and some evenings too). I have even been lucky with a few. It just doesn't get better than this."

The former classmate didn't laugh -- especially when school officials launched an investigation that could have ended his career.

[L]ast week, the Oregon Supreme Court publicly reprimanded Carpenter, whose practice includes criminal defense work, divorce, civil litigation and probate.

Details here from The Oregonian, or read the Court's opinion here. (via How Appealing)

Prisoners' Dilemma

In the first two years after Sept. 11, whenever its terrorism or detention policies were challenged in the courts, the Bush administration waged a scorched-earth legal campaign in its own defense. Justice Department lawyers routinely deployed an arsenal of procedural motions and legal delay tactics to keep the federal courts from ever hearing a terrorism case on the merits. When the Supreme Court stepped in last June with the last word on the legality of such wartime practices, observers (including me) had a right to hope that the administration would cease its foot-dragging and finally conform its policies to the demands of the justices and the rule of law.

The Bush administration dashed that hope last month with a series of actions concerning detainees from the war on terrorism and the war in Iraq.

Details here from Phillip Carter of Slate. (link via How Appealing)

UPDATE (8/4): In the article above, Mr. Carter predicted that many detainees would wisely refuse to cooperate in the new "U.S. military review hearings," which are designed to develop evidence justifying the initial seizure of the suspects. Now this:

Four Guantanamo Prisoners Refuse Hearings

[H]uman rights groups criticize the process as a sham, saying the three officers assigned to hear cases can't be considered impartial and that each detainee should be allowed a lawyer.

"What you have is a process that would be suitable for resolving a dispute over a parking ticket. It's not an acceptable process," said Alistair Hodgett, of Amnesty International. "It's really an after-the-fact justification for detaining people without charge or fair trial."

Details here from the AP.

Indiana Man Jailed for Sending Obscene Notes to Judge

A Kouts [IN] man cited for contempt of court Monday morning was given a seven-day jail sentence.

Jeffrey L. Gast’s trouble began after he failed to pay a Porter hospital emergency room bill.

Gast, 46, of 800 block of Kouts Street, was sent some forms to fill out to see if he qualified for an exemption protecting some of the money in his checking account, Porter Superior Court Judge David Chidester explained.

Instead of answering questions, Gast returned four court papers with an obscenity printed on each document.

Chidester, on July 12, ordered Gast to appear in his courtroom Monday morning to show cause why he should not be held in contempt of court.

Gast told Chidester he figured the judge would have looked at the papers and tossed them in the trash. The judge didn’t see it that way.

Details here from the Indiana Post-Tribune.

Reports That Led to Terror Alert Were Years Old, Officials Say

Much of the information that led the authorities to raise the terror alert at several large financial institutions in the New York City and Washington areas was three or four years old, intelligence and law enforcement officials said on Monday. They reported that they had not yet found concrete evidence that a terror plot or preparatory surveillance operations were still under way.

Details here from Tuesday's front page of The New York Times. (reg. req'd)

EFF Files Lawsuit for JibJab

(In case you've been living in a cave, here's the JibJab song.)

As has been widely reported, EFF [Electronic Frontier Foundation] has filed suit on behalf of JibJab to defend the "This Land" animated short. As we reported last week, music publisher Ludlow Music Inc., owner of Woody Guthrie's "This Land is Your Land," had threatened copyright litigation against JibJab. In light of the July 30 deadline that Ludlow had set down in its threat letters to JibJab and its upstream hosting providers, we felt we had little choice but to file suit to defend JibJab's fair use and free speech rights.

Both sides continue to exchange correspondence, and JibJab hopes this dispute can be resolved without further litigation. For the reasons discussed in our July 28 letter to Ludlow, we continue to believe that "This Land" is a fair use, especially in light of the fact that Woody himself borrowed the melody from an earlier song.

The press release above is here from EFF.org. (via The Blawg Channel)

Former Wisconsin Prosecutor Sentenced

GREEN BAY, Wis. -- A former prosecutor who accepted more than $48,000 in bribes in exchange for dismissing or reducing charges against defendants was sentenced Monday to nearly five years in prison.

U.S. District Judge William Griesbach said the four-year, 10-month term exceeded federal guidelines because Joe Paulus' "horrendous crime" undermined public confidence in the criminal justice system. "Justice was for sale," prosecutors had said of the scheme.

Details here from the AP via Newsday.com.

Supreme Court Will Hear 2 Cases On Sentencing

WASHINGTON - Reacting to what has been a summer of chaos in lower courts, the Supreme Court said Monday it will clarify whether a June ruling that bars judges from unilaterally increasing jail terms might render current federal sentencing guidelines unconstitutional.

The justices will hear two cases on Oct. 4, the first day of their new term, that address the fallout from Blakely v. Washington, a bombshell ruling from the last days of their previous term.

Details here from Knight-Ridder.

Ten Commandments Judge Appeals to U.S. Supreme Court to Reclaim Job

A former Alabama chief justice who refused a federal court order to move a Ten Commandments monument claims he was ousted for "professing a belief in God" and is appealing to the U.S. Supreme Court.

Attorneys for Roy Moore argued a judicial ethics panel imposed an "unconstitutional religious test" on Moore when it expelled him in November. It also argued the panel wrongly refused to consider Moore's contention that the court order was illegal.

"Certainly you should not be removed from office for professing a belief in God," Moore said at a news conference.

No, but you should be removed from the bench for repeatedly ignoring the Constitution. Details here from the AP via the San Diego Union-Tribune.