Bend Over, It's the Law

Courtroom security can be a bitch.
Just ask Dianna Johnson, who complained that all female prisoners appearing in Superior Court in D.C. were subjected to strip, visual body cavity and/or squat searches. Johnson and other arrested women noted in a lawsuit that men weren't subjected to the same humiliating round of searches, unless authorities had some reasonable and particularly suspicion to act upon.

"A female Marshal directs the arrestee to pull up her skirt or lower her pants and to pull down any undergarments," Johnson's original complaint explained. "A female Marshal then makes the arrestee squat and turn around and display their buttocks and their genitals to the female Marshal...in front of all the female arrestees already in the cell block."

This is actually an excruciatingly long-running case, coming upon the sixth anniversary of its filing back in December 2002. Unfortunately for Johnson, the U.S. Marshal overseeing security in the DC Superior Court is a federal employee. U.S. District Judge Rosemary Collyer on Friday i this opinion, https://ecf.dcd.uscourts.gov/cgi-bin/show_public_doc?2002cv2364-202 consequently dropped the District of Columbia as a defendant in Johnson's lawsuit.

"Because the District of Columbia has no authority to control the Superior Court Marshal and no choice but to turn over arrestees to him, the District of Columbiacannot be held liable for his allegedly unconstitutional acts."

Diana Levine

Diana Levine looked radiant at the Supreme Court on Monday.

Strikingly white hair. Silver medallion around her neck. Purple dress. And, oh yes, one arm cut off below the elbow.
Did the justices see her? For that matter, was she deployed by her attorneys as a visual reminder of the human element in the case called Wyeth v. Levine? It's not out of the question. After all, uniformed military officers seem to show up in the justices' lines-of-sight during national security cases.
Levine's attorney, David Frederick, brought this handsome, artistic-looking woman out to the steps of the Capitol following oral arguments in the closely watched case called Wyeth v. Levine. (Is there any more commonly used phrase in Supreme Court reporting than "closely watched case?" The answer is, yes: "high-stakes case.")
"The drug manufacturer was negiligent in its warning," Frederick told reporters on the court steps, with Levine by his side, "and the results are here for all to see."
Levine declared herself "speechless" and said she was "just trying to digest" the legal arguments she had just heard. Other than that, Levine was silent; at least, in front of the mass of reporters. Which was too bad; Diana Levine struck me as an intriguing character whose physical presence articulated just the start of a fascinating story.

Businesses have much at stake in drug suit's outcome

By Michael Doyle | McClatchy Newspapers

WASHINGTON — Supreme Court conservatives on Monday sounded sympathetic to a drug company's pleas for protection from state court lawsuits.

http://www.mcclatchydc.com/257/story/55218.html

Ted Stevens: What, Me Convicted?

I'd like to know where Sen. Ted Stevens learned his criminal law.
Oh, that's right: Harvard Law School, class of 1950.
A former U.S. Attorney, Stevens now has an aggressive interpretation -- one might say, a Williams & Connolly-ian interpretation -- of what it means to be "convicted."
On Thursday, Stevens told the Fairbanks Daily News-Miner:

“I’ve not been convicted yet,” Stevens insisted. “There’s not a black mark by my name yet, until the appeal is over and I am finally convicted, if that happens."

Is Stevens right, in some bizarro technical sense, or is it time for a little refresher course? On Oct. 27, a 12-member jury in Washington found Stevens guilty of seven felony counts of lying on financial disclosure statements. Sounds convicted to me; that's certainly the plain-language understanding of the term. The Federal Rules of Criminal Procedure, moreover, speak of "post-conviction procedures" initiated once the verdict is rendered. Case closed? No, it gets trickier!

18 U.S.C. 921(a)(20) states that "What constitutes a conviction [is] determined in accordance with the law of the jurisdiction in which the proceedings were held." In immigration law, for instance, if I read the cases right, "conviction" requires a sentence to be rendered. And in the Federal Rules of Criminal Procedure, as well, the "judgment of conviction" is something signed by the judge after the verdict and sentence is rendered.
So, uhh, if I get this right: Stevens was convicted, but the judgment of conviction has not yet been rendered. Meaning: pick the definition that best suits your purpose!
http://newsminer.com/news/2008/oct/30/alaska-sen-stevens-says-he-will-clear-his-name/

Marijuana Mercy

Score one for the little guy. If, by ‘little guy,’ you mean someone caught hauling 94 pounds of marijuana.

Tammy Levesque seemingly hasn’t caught a lot of breaks in her life. She’s a 33-year-old single mom and a high school dropout, basically unemployed since 2005. She had been trying to save money to fulfill her dream of opening a beauty parlor in Madawaska, Maine.

Unfortunately, her money came from earning $2,000 a trip for transporting pot in her pickup truck from Maine down the Eastern Seaboard to North Carolina. The cops busted her. She pled guilty to conspiracy to distribute, and agreed the government would seize some of her assets through forfeiture. Then, prosecutors overreached and demanded she cough up $3 million. Typical prosecutor math: number of trips Levesque made times the estimated amount of pot carried times the estimated dealer’s price of $2,000 a pound.

Nuh-uh. On Thursday, the 1^st Circuit Court of Appeals determined the $3 million asset forfeiture was an excessive fine in violation of the Eighth Amendment. That’s right: the same amendment the Supreme Court uses to cap corporate liability payments has now been used to cap a drug courier’s payments. The 1^st Circuit reasoned http://www.ca1.uscourts.gov/cgi-bin/getopn.pl?OPINION=08-1344P.01A that “ruinous monetary punishments” that would effectively deprive a defendant of a future ability to earn a living are excessive.

That means that Ms. Levesque might still have a shot at making a go at that beauty parlor once she’s released next year from the Alderson minimum security facility in West Virginia.

Ted Stevens: What's Next

Boomp3.com


Anchorage Daily News reporter Erika Bolstad discusses the next steps in the criminal case of Alaska Sen. Ted Stevens.

Nader v. Blackwell

Ralph Nader on Wednesday won a battle but lost a war, or maybe it's vice versa, when the 6th Circuit Court of Appeals rejected his effort to sue former Ohio secretary of state Kenneth Blackwell. The case arose out of Nader's frustrated efforts to secure a place on the 2004 ballot, an effort blocked when he couldn't produce 5,000 valid signatures. Nader challenged Blackwell, personally, over enforcement of the Ohio law that requires petition-circulators to reside and be registered to vote in Ohio.

It's an intriguing opinion, packed with anecdotes about oddball behavior by Nader's petition-circulators, including the saga of Ronald Waller. Mr. Waller submitted 366 signatures on Nader's behalf, but the court noted that "Waller’s mother swore in an affidavit that he had not lived at the given address since March 2004. One individual whose name was on the petition swore that he signed a petition circulated by a white man and a white woman. Waller is a black man."

The appellate panel, moreover, determined Blackwell enjoys some of that sweet, sweet sovereign immunity that protects him Nader's lawsuit. For Blackwell, that may be the bottom line. Bye bye, lawsuit.

But then, in what may prove to be the longer-lasting part of the ruling,
http://www.ca6.uscourts.gov/opinions.pdf/08a0391p-06.pdf, the three-member appellate panel also concluded that Ohio's ban on out-of-state petition circulators violated the First Amendment. Saeth the court:

it is undisputable that Blackwell’s conduct sharply limited Nader’s ability to convey his message to Ohio voters and thereby curtailed Nader’s core political speech..

Effing Brilliant

An R-rated case requires R-rated briefs, or so one might think.
But as the Supreme Court prepares to hear oral arguments Tuesday in the closely watched case FCC v. Fox Television Stations, many lawyers are delicately averting their eyes, and our ears, from the words in question. This is the case in which the FCC wants to fine television stations for naughty words ejaculated by Bono, Cher and Nicole Richie.
A DoyleReports Special Investigation -- thanks, Mr. PDF Search Mechanism! -- reveals that a majority of the amicus briefs filed in the dirty words case http://www.abanet.org/publiced/preview/briefs/nov08.shtml actually avoid using the words themselves. Of seven amicus briefs filed in support of the FCC's position, only Morality in Media used the swear words. The others, filed by the likes of the National Religious Broadcasters, prefer circumlocutions like "the f-word." The words are just too hot to handle!
Briefs supporting the broadcasters, perhaps predictably, are considerably more likely to let us in on the $#@!ing secret. Five such briefs, filed by the likes of the ACLU, cite the words in question. The idea, maybe, is to de-mystify them: see, they're mere words. However, five other briefs filed by the by the likes of Time Warner and the ABC affiliates avoided the swear words.
Of course, if I was smart, I would use the words in this post and thereby optimize search results...

Stevens: Go Now

McCain, Palin ask Stevens to step down from Senate

By Erika Bolstad | McClatchy Newspapers

WASHINGTON — Wasting no time to separate their campaign from the "corruption and insider dealing that has become so pervasive in our nation's capital," Sen. John McCain and his running mate, Alaska Gov. Sarah Palin, called Tuesday on their fellow Republican, Alaska Sen. Ted Stevens, to step down from the Senate.

http://www.mcclatchydc.com/231/story/54879.html

Short and Plain

I would like to know: Precisely how many seconds does it take a judge to resolve a case like Dixon v. Bush? I mean from start to finish: intake, reading, typing the opinion, sighing resignedly...
A Mr. Ernest Dixon, who has crossed our path before, sued First Lady Laura Bush for $40 million. Mr. Dixon dutifully explained in U.S. District Court in DC that:

"(she) has helped tear down (his) apartment building" in New York City and has "built her a building there."

On Tuesday, U.S. District Judge Ellen Huvelle dismissed the suit, https://ecf.dcd.uscourts.gov/cgi-bin/show_public_doc?2008cv1845-3 explaining that it failed to include the necessary "short and plain" statement of the claim. Although, I get the feeling the plaintiff's explanation might end up being very long and very complicated.

Taxed

And you think you have deduction problems.
On Monday, the U.S. Tax Court rejected WellPoint Inc.'s bid to claim more than $113 million in deductions on the insurance company's 1999 and 2000 tax returns. WellPoint had paid out the money in a settlement with Kentucky, Ohio and Connecticut after those states sued. Those original lawsuits arose following WellPoint's merger with the Blue Cross and Blue Shield system.
In Tax Court, WellPoint argued that the settlement payment was an ordinary and necessary cost of doing business, and hence deductible. The government argued they were capital expenditures and not deductible. Insert boring legal reasoning here.
Judge Diane Kroupa agreed with the IRS on this one, http://www.ustaxcourt.gov/InOpHistoric/Wellpoint.TCM.WPD.pdf
and the resulting tax deficiency appears to be over $51 million, which is enough to make anyone sick.