Thursday, April 28, 2011

Class Action Ruling an Earthquake for California Litigation

Class action attorneys handling cases in California are scrambling to figure out what the U.S. Supreme Court's latest ruling on arbitration clauses means for their practices.

Today's 5-4 decision in AT&T Mobility v. Concepcion held that the Federal Arbitration Act trumps a California rule invalidating as "unconscionable" a class action waiver provision in a cellphone arbitration agreement.

Plaintiff and defense lawyers agree that the result will be far fewer consumer class actions filed. Plaintiff attorneys won't have incentive to bring small-money cases if they must be arbitrated individually, rather than pooled into a class.

"This is a devastating decision for people whose practices depend on class actions," said San Francisco employment attorney Cliff Palefsky, who's brought class actions in the past but doesn't specialize in the area now. "It affects not only the right to bring class actions in the future but the validity and status of cases that are presently in class action arbitration proceedings. The status of most of those cases is uncertain at best and in jeopardy at worst."

Lieff Cabraser Heimann & Bernstein partner Jonathan Selbin, who's based in New York but works on litigation in California, said the decision was on his mind all day. "This is an earthquake," he said, adding that the firm is looking at the impact on legal strategies, policy and legislative issues, and specific cases.

Selbin said that in the past 16 years he's recovered more than $2 billion in cash from corporations on behalf of consumers in these types of cases. "That's what's at risk here," he said. "That's why corporations care so much."

San Francisco plaintiff attorney James Sturdevant was taken aback by the ruling, given that even the conservative justices seemed to be leaning toward upholding the California law during oral argument. He said he hopes the ruling will prompt an outcry from consumers and employees across the country that will lead Congress to act. "I'm very hopeful that Congress will quickly pass legislation to overturn this decision," Sturdevant said.

Defense attorneys, meanwhile, are focusing less on the drop in future class action litigation and more on an expected increase in counseling for companies that want to add mandatory arbitration clauses into their employment agreements.

Seyfarth Shaw partner Brian Ashe, who represents employers in class actions, said he views the ruling as a clarion call for employers, especially in California, that are facing wage-and-hour, Title 7 and other class actions. "I think it's going to be just fine for business," said Ashe, who's based in San Francisco. Those employers who don't have arbitration agreements and now need them, and those who don't have class action waivers but want them, are going to be looking for advice. For those reasons Ashe doesn't expect litigation to drop in the next two years. "There's an entire industry built around this area of law," Ashe said. "The agreements aren't out there."

Covington & Burling partner Sonya Winner, whose practice focuses on class actions centered around financial services products, said she spent the morning thinking about new strategies, including bringing arbitration back into matters where it was off the table. She estimated that about 80 percent of the matters she's worked on this week are affected by the new rule.

She doesn't expect this to be the end of class actions, though. "I didn't call the business committee to say I need a new practice area," she said with a laugh.

Other plaintiff employment lawyers similarly expect the impact to be circumscribed. Michael Rubin of San Francisco's Altshuler Berzon said the decision doesn't actually prohibit class actions in arbitration, so the handful of class actions his firm has will likely move forward.

"All the decision today says is that a clause prohibiting class actions cannot be the basis for striking down an arbitration agreement as unconscionable," Rubin said. "That means arbitration agreements can still be struck down as unconscionable on other grounds," such as if it limits substantive rights or remedies. He said he expects to see a rise in mass tort cases to make up for the curb in class actions.

Palefsky sounded more pessimistic, and pointed out a seeming irony for defense attorneys: "These lawyers who've been inserting these clauses into contracts have just eliminated a significant portion of their business."

By Petra Pasternak


State court rules attorneys must participate in home closings

The Massachusetts Supreme Judicial Court today released a ruling requiring the "substantive participation" of attorneys in real estate transactions in a long-awaited decision celebrated by local lawyers.

The state's top court addressed issues prompted by a high-stakes turf battle between local real estate attorneys and a Pennsylvania-based real-estate services company over what constitutes the practice of law in residential home closings.

Supporters of the ruling say it is good for local attorneys and homeowners who often are making one of the most important financial decisions of their lives.

"The interests of private clients and the public alike are safeguarded when an attorney participates in real estate conveyancing,” said Martin W. Healy, chief legal counsel of the Massachusetts Bar Association.

The dispute began in 2006 when the Real Estate Bar Association for Massachusetts filed suit against National Real Estate Information Services, claiming some of its practices constitutes, "the unauthorized practice of law." The company provides services to mortgage lenders, including title examinations, the disbursement of settlement funds and drafting federal housing documents.

In 2009, a US District Court judge found in favor of the Pennsylvania company and ordered the local real estate bar to pay nearly $1 million in fees and costs. Last year, the 1st United States Circuit Court of Appeals vacated the decision and sent clarifying questions to the Supreme Judicial Court for consideration.

The top court ruled unanimously that some of the services provided by National Real Estate Information Services are lawful, including title examinations and the preparation of mortgage-related forms. But overall, justices found that real-estate closings require, "Not only the presence but the substantive participation of an attorney on behalf of the mortgage lender."

Local real estate attorney Richard Vetstein said the decision creates a barrier for out-of-state companies interested in coming into Massachusetts and taking over local closings at bargain-basement prices.

"The threat was we were going to be outsourced,'' said Vetstein who authors a local blog about real estate.”It reaffirms Massachusetts attorneys long standing involvement in residential real estate transactions."

By Jenifer McKim, Globe Staff

Source: The Boston Globe

Saturday, April 23, 2011

Recovery prompts US divorce rebound

In a perverse sign of the economic recovery, the US divorce rate, which dipped in the recession, has bounced back, lawyers and matrimonial experts say.

A stronger economy, lower unemployment and a housing market that – while still weak – is no longer in free fall are all contributing to a rebound in divorce filings.

“There is huge pent-up demand,” said Marshal Willick, a Las Vegas matrimonial attorney, who has noted an upturn in his business.

During the recession, couples who were out of work or unable to sell their house stayed married to save money. The percentage of the population 15 years and older who counted themselves divorced dropped to 9.7 in 2009, from 9.9 three years earlier, according to the Census Bureau. More than half of the 1,600 attorneys who are members of the American Academy of Matrimonial Lawyers reported a downturn in their business in 2009, the most recent year for which survey data are available.

Now, those same lawyers are inundated with new clients. Linda Lea Viken, the group’s president, said her practice in Rapid City, South Dakota, was 25 per cent busier this year, compared with the same period in 2009.

One client first approached her about leaving his wife in 2008, but put the divorce on hold when the local bank would not lend him the money to buy her out of their ranch. As property values in the area rebounded following a steep rise in the price of corn and wheat, the once stalled divorce is “moving full steam ahead”, Ms Viken said.

Divorce has not become any less acrimonious but the fights have changed, lawyers said.

“People no longer argue about who’s keeping the house, but about who’s stuck with it,” Mr Willick said.

So-called underwater homes, that are worth less than the balance on their mortgage, are flummoxing judges who cannot decide whether to treat them as an asset or a liability.

In one Las Vegas case, the husband wanted to sell and the wife did not. While they argued, the value of the home continued to fall, said Gary Silverman, their lawyer. The couple is still in the process of splitting.

Other divorce rituals are also going by the wayside. It was once standard practice to make copies of family photos. “But today, people don’t want to shoulder the expense,” said Madeline Marzano-Lesnevich, a New Jersey lawyer.

Even in times of economic distress, however, there is only so much misery that people can bear. One divorcing Manhattan man had planned to use the proceeds from his Bernard Madoff account to pay for a new apartment when he had left home.

The man still moved out after Mr Madoff’s investment fund was exposed as a Ponzi scheme. “But he got a much smaller apartment,” said his lawyer, Alton Abramowitz.

By Suzanne Kapner in New York


Lusk's attorneys ask for a change of venue

Linda Lusk's attorneys want a judge to move her sex crime trial to another county or sequester the jurors because of "voluminous and vicious" media coverage during the past 10 months.

Attorneys Jim Egan and Larry Stephenson on Friday filed a motion in Benton County Superior Court to change the venue of the upcoming trial for the former Prosser mayor.

Lusk, 50, is accused of exchanging sexually explicit text messages and having sexual contact with a teenage boy. She is charged with third-degree child molestation, third-degree rape of a child and communicating with a minor for immoral purposes.

"This case received notorious attention from TV and the newspaper and the internet," Egan wrote. "The blogs and YouTube videos contain vicious, untrue, mocking information about the defendant and her family. Strong opinions have been generously expressed."

Egan said that if Judge Carrie Runge wants to keep the case in Benton County, the alternative is to have jurors fill out a detailed questionnaire. That would help the lawyers understand each juror's knowledge of the case, though they still would need to be individually questioned, he said.

He argued that a majority of potential jurors would know the parties and be familiar with the allegations because of Lusk's background as a political figure and her husband's role as the Prosser High principal.

If the trial stays in Kennewick, he said the jury panel should be housed in a hotel during the trial to prevent exposure to outside information from the media, family or friends.

"Sequestering will not cure all the same defects as a change of venue, but will prevent the jury from being influenced by what they see and hear and what they might seek on their own," Egan wrote.

Prosecutor Andy Miller said he only learned of this request before Friday's hearing. He told the court he has been "a little disappointed with the media on this case" because he doesn't feel the victim's family has been respected in the coverage, but added that he doesn't think people read a lot of the blogs that mention Lusk.

Miller said he would be surprised if he couldn't find a fair and impartial jury in Benton County, and told the court that a jury questionnaire is the more appropriate option.

Runge noted that the lawyers weren't ready to address the motion Friday, but said it "seems premature" at this point. At a minimum, a questionnaire will be used given the nature of the case and the media attention, she said.

Lusk's trial is May 16, but Egan notified the court that he has a two-week drug trafficking trial scheduled at the same time in U.S. District Court. Egan said he cannot move the federal case and asked if he could delay Lusk's trial two weeks, pointing out that he and Stephenson only have been handling the case for 80 days.

Miller was frustrated that Egan's drug trafficking case is taking precedence over the Lusk case, considering this one has been set for two months and has a teen victim who is waiting to get on with his life once the trial is over.

Miller questioned if Egan even mentioned this case to Judge Robert Whaley in federal court, and encouraged Runge to speak to the other judge to see if that case could be delayed.

Runge said she does not know Judge Whaley, but will talk to him before a hearing next week. If Whaley doesn't feel the facts of the Benton County case warrant a postponement of his case, then Lusk's trial will be moved to late May, Runge said.

The judge also said she is holding off ruling on a motion to suppress statements Lusk gave to police because her new defense lawyers want to re-argue the issue. A hearing was held Feb. 17 on the issue, when Lusk was represented by Scott Johnson.

By Kristin M. Kraemer, Herald staff writer

Source: The News Tribune

Sunday, April 17, 2011

Phil Spector lawyers urge new trial on murder charge

Lawyers for record producer Phil Spector urged a California appeals court on Tuesday to throw out his 2009 murder conviction and grant a third trial

But after a day of oral arguments in Los Angeles, 71-year-old Spector will have to wait for up to three months to find out if his request has been granted.

Spector, once revered in the music industry for creating the layered "Wall of Sound" recording technique, is serving a prison sentence of at least 19 years for the 2003 murder of actress Lana Clarkson.

He did not attend Tuesday's court appeal hearing.

Spector was convicted of second degree murder by a Los Angeles Superior Court jury in April 2009, in his second trial. A 2007 trial ended in a mistrial after jurors deadlocked.

Spector's attorneys argued on Tuesday that both trials were prejudiced by testimony from five women who said they were victims of gun-related incidents with Spector years ago.

They also sought to persuade the appeals court that trial judge Larry Fidler effectively turned himself into a prosecution witness when the second jury was shown a videotape of him describing evidence about blood spatter given by a technician in the first trial.

Prosecutors argued that Spector's prior gun play with other women were both relevant and explained the motive for the shooting.

Clarkson died in the foyer of Spector's home of a gunshot to the mouth just hours after meeting him at a night club where she was working.

Spector's lawyers argued at the two trials that Clarkson shot herself because she was depressed. Spector pleaded not guilty but did not testify in his own defense.

The three judge panel will issue its ruling within 90 days.

Spector, a millionaire by the time he turned 21, worked with the Beatles, the Ronettes, Cher and Leonard Cohen at the height of his fame in the 1960s and 1970s. Before his imprisonment, he had lived for years as a virtual recluse in a mock castle in suburban Los Angeles.

Source: Reuters

Barry Bonds' lawyers to file motion asking judge to toss guilty verdict, attorney Allen Ruby says

Lawyers for Barry Bonds will file a motion asking U.S. District Judge Susan Illston to toss the home run king's obstruction of justice guilty verdict, according to Allen Ruby, one of the home run king's lead attorneys.

The motion, Ruby said Thursday, will argue that the statement to the BALCO grand jury that jurors said was evasive - "Statement C" - did not support the obstruction of justice charge.

When a prosecutor asked Bonds, at his Dec. 4, 2003 grand jury appearance, if trainer Greg Anderson had ever given him anything that required a syringe, Bonds replied, "I've only had one doctor touch me. And that's my only personal doctor."

Bonds continued to tell the grand jury that he and Anderson got along because they didn't talk about each other's respective jobs. As the child of a celebrity - Bonds' father, Bobby, played for the Giants, Yankees and several other teams - he learned not to "get into other people's business."

During jury instructions, Bonds' legal team expressed concern that the jury could fail to convict the former baseball star on the three counts that alleged he lied when he claimed he never knowingly used performance-enhancing drugs but still could convict him on the obstruction charge. Attorney Dennis Riordan cited Statement C when he raised those concerns.

Ruby said the motion would be filed on or before a May 20 hearing to determine if the slugger will face a new trial on the three perjury charges the jury deadlocked on after nearly four days of deliberations. Bonds' legal team could still file an appeal with the Ninth Circuit Court of Appeals if Illston refuses to toss the guilty verdict.

A Justice Dept. spokesman, meanwhile, declined comment when asked if prosecutors would seek a new trial on the three deadlocked counts. The jurors said they overwhelmingly did not believe the government proved two counts that said Bonds lied when he denied using steroids and human growth hormone.

But prosecutors Matt Parrella and Jeff Nedrow did convince 11 of the 12 jurors that Bonds lied when he claimed he only received injections from his physician.

Still, Parrella and Nedrow might have a hard time convincing their superiors at Justice to seek a new trial after years and millions of taxpayer dollars have been spent prosecuting Bonds. Sports fans and sports journalists have complained that Bonds' alleged crimes aren't worth the resources spent on the case, and a congressman recently said at a hearing that the money spent on the Bonds case had been wasted.

"Why did it take eight years to get to this point on Barry Bonds?" Rep. Jack Kingston (R-Ga.) told The Associated Press after the verdict. "And with all the problems we've got, why are we sitting here at the end of an eight-year investigation?"

Justice Dept. officials will also have to decide whether to bring a new trial in front of a judge who has lost her temper more than a few times with prosecutors. As Bonds' lawyers and the feds tried to figure out what to do next after the jury's split-the-baby verdict, Illston snapped at Parrella as he tried to explain why the prosecutors needed time to consider a new trial.

"The trial is over," Illston said sharply. "We don't need any more speeches."


Source: NY Daily News

Sunday, April 10, 2011

Client Protection Fund Sees Spike in Claims and Payouts in 2010

Claims by clients whose attorneys stole from them surged in 2010, as did the size of payouts from the Lawyers' Fund for Client Protection.

There were 820 claims to the fund last year, 67 percent more than in 2009, according to its annual report released Friday.

The $8.5 million paid out last year to the clients of 47 attorneys was 42 percent higher than the $5.6 million paid out in 2009.

Individual awards in 2010 ranged from $179 to $300,000, the maximum under the program. The median award was $12,962 and the median claim made to the fund was $109,000.

Timothy J. O'Sullivan, the counsel and executive director of the fund, called last year's increased activity "dramatic" and said administrators believe it is related in some way to the sputtering economy.

While the economy appeared to make a slow recovery in 2010 in parts of New York, Mr. O'Sullivan said that many of the awards made last year reflected attorney conduct in 2008 or 2009, when the state was more deeply mired in recession.

Mr. O'Sullivan said the desperation levels of the 47 offending lawyers seemed to be reflected in the far higher overall payout in 2010.

"When the economy slows down and there are problems, a lawyer who may have a problem of some kind, those losses tend to surface more," Mr. O'Sullivan said in an interview Friday.

The fund ended the year with 852 claims pending, the highest year-end total in its existence. Those claims allege losses of $82.3 million, though only a fraction of claims tend to result in awards once they are examined by the fund.

Former Manhattan attorney Marc A. Bernstein was responsible for the largest overall fund expenditure—$1.5 million to 25 former clients. Mr. Bernstein, formerly of Bernstein & Bernstein, stole money he had won on behalf of medical malpractice clients. He was disbarred and sentenced to three years in state prison (NYLJ, Oct. 13, 2010).

The most claims, 36, were paid out against former Manhattan attorney Marc A. Zirogiannis for his role in a mortgage scam (NYLJ, July 9, 2009). His former clients received $770,782 from the fund last year.

Attorney misconduct for which the fund reimburses clients includes the theft of funds held in escrow, the theft of funds from court awards or debt collections, the embezzlement of investments placed with lawyers on clients' behalf and the nonperformance of agreed upon services for which fees have been taken.

Fund administrators said the mishandling of clients' real property escrow accounts made up the largest share of reimbursable awards in 2010, totalling $3.5 million.

Over the fund's 28-year history, most thefts have involved solo practitioners, the majority male and middle-aged. The most typical causes of attorney theft are substance abuse, economic pressures, mental illness and marital difficulties.

Sixty dollars is assigned to the fund out of the $375 biennial attorney registration fee paid by New York attorneys. There are 262,000 registered lawyers in the state.

By Joel Stashenko,

Source: New York Law Journal

Trial lawyers want a voice in tort reform

RALEIGH North Carolina is almost certain to restrict medical malpractice and other types of lawsuits this year, thanks to a Republican-controlled General Assembly that has made that one of its top priorities.

At stake are the rights of those who have been harmed to be fairly compensated, balanced against the need to protect doctors and others from unfair lawsuits, and to control insurance costs. That tug-of-war has been playing out in legislators' offices and in committee meetings in recent weeks. Another is scheduled for Thursday.

But the lawyers who sue on behalf of injured people are complaining that lawmakers have cut them out of the process and are only listening to corporate interests behind closed doors. GOP legislators don't see it that way, and counter that they are listening to all sides.

N.C. Advocates for Justice, the state trial attorneys' organization, contends that when major changes to criminal and civil procedures have come up in previous years they were part of the discussion from the beginning. They say in those days - before the last election - all sides would try to find common ground in a deliberative process that went on for some time before a bill ever showed up in committee.

But now, Dick Taylor, chief executive officer for the lawyers' group, says the Republican-controlled General Assembly is rushing through one-sided bills with limited input.

"This is the most sweeping proposed set of changes in our justice system in my career, and only one side is at the table," Taylor said on Thursday.

Rep. Daniel McComas, a veteran Republican House member from New Hanover County who co-chairs the House Select Committee on Tort Reform, disagrees and says he has met with the trial lawyers.

"I've had an open-door policy," he said Friday. "We've had speakers from both sides. Everyone has known the process would take place. We're looking at amendments. I think we're being very fair and very even-handed."

Of course, there's an element of the shoe being on the other foot now that Republicans are in charge. The trial attorneys have traditionally been big financial supporters of Democratic candidates. Last year they contributed nearly half a million dollars to statewide candidates, with half of that going to those running for the General Assembly. Not all of it went to Democrats.

ALEC 'boot camp'

Some of the trial attorneys' fears have been bolstered by the presence of special-interest groups other than their own now having ringside seats with those running the show. Taylor says one group, the free-market advocates American Legislative Exchange Council, "foments very conservative, anti-consumer legislation."

Last month about two dozen legislators met with ALEC in the auditorium of the General Assembly building for what it calls a "boot camp," where lawmakers discussed the organization's ideas for changes in medical malpractice and other civil law reforms.

The next day, Lincoln County Republican Rep. Johnathan Rhyne, co-chairman of the tort reform committee, presented a draft version of a bill that went much further than the medical malpractice bill passed in the Senate. Until it was changed last week, it would have protected virtually any product from liability in lawsuits, among other proposals.

Rhyne permitted only one speaker at the committee meeting that day: John Del Giorno, a GlaxoSmithKline executive who serves on ALEC's private sector board, because Del Giorno couldn't attend the following week's meeting when speakers were invited.

ALEC has put on presentations in North Carolina before, and General Assembly members have traveled to its meetings. Rep. Harold Brubaker, a Randolph County Republican, is on its national board, was the national chairman in 1994, and in 2009 was honored by the association. Along with GSK's Del Giorno, Reynolds-American vice president for state governmental affairs David Powers also serves on the group's private enterprise board.

Rep. Fred Steen, a Rowan County Republican, is the North Carolina state chairman for the group. He says he got involved several years ago and likes the way it comes up with model legislation. He said the model laws are crafted after lengthy debate, and are valuable to lawmakers. He said it's no different than belonging to the National Conference of State Legislators, a resource group that is politically impartial.

By Craig Jarvis,

Source: The Charlotte Observer Newspaper

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Source: SFGate

Lawyers for condemned Arizona inmate seek federal intervention for scheduled execution

Lawyers for an Arizona death row inmate filed motions Saturday asking the U.S. Supreme Court and federal appeals court to stay his scheduled execution next week.

A state clemency board already has decided against intervening in the case of Daniel Wayne Cook, who was convicted of raping, torturing and strangling two men in 1987.

Cook, 49, is scheduled to die by injection Tuesday at the state prison in Florence.

Dale Baich of the Arizona Federal Public Defender’s Office said he filed paperwork asking the U.S. Supreme Court to review Cook’s claim that his state post-conviction lawyer didn’t effectively represent him in those proceedings.

Baich said another motion asks the U.S. Ninth Circuit Court of Appeals in San Francisco to review claims that the drugs used in Arizona’s executions are illegally imported and that there could be problems with their efficiency.

In the effort to stop Cook’s death sentence altogether, his attorneys told the Arizona Board of Executive Clemency that he suffered from extreme physical and sexual abuse during childhood, and only recently was diagnosed with post-traumatic stress disorder and brain dysfunction.

The board discussed the severe sexual and psychological abuse that Cook suffered as a child, but ruled Thursday that his crime 24 years ago was too severe to recommend he get a life sentence instead.

Cook’s lawyers have argued that the state broke federal law when it imported drugs used in its injection process, such as sedative sodium thiopental and the muscle relaxant pancuronium bromide, because they were listed in forms as being intended for “animals (food processing),” rather than humans. His lawyers say the sodium thiopental could be ineffective, leading to severe pain during an execution.

Baich said Cook shouldn’t be executed until the state implements a new single-drug method of lethal injection, a change that Arizona Department of Corrections Director Charles Ryan recently announced because of “perceived concerns” about the current three-drug method.

Assistant Attorney General Kent Cattani has denied that Arizona broke the law. He said the paperwork mistake came from a clerical error by the federal Food and Drug Administration.

The state is switching to one drug because of a U.S. shortage of sodium thiopental, not because of any alleged ineffectiveness, according to Cattani.

Cook suffered numerous rapes at the hands of family members and a group home worker, was burned with cigarettes and was forced to have sex with his sister, according to attorneys and court documents.

Cook was convicted of two counts of first-degree murder in the gruesome July 1987 killings of Kevin Swaney, 16, and Carlos Cruz-Ramos, 26, in Lake Havasu City.

Copyright 2011 The Associated Press. All rights reserved. This material may not be published, broadcast, rewritten or redistributed.

By Associated Press

Source: The Washington Post

Friday, April 1, 2011

Facebook Is Tool for Trial Lawyers Scouring Juror Profiles to Unearth Bias

When jurors were chosen for the perjury trial of baseball star Barry Bonds this month, they were barred from using social media in regards to the case. Such a ban doesn’t extend to lawyers, who mine Facebook Inc. profiles of jurors to unearth a bias that might hurt or help their side.

Facebook, Twitter Inc. and other services have become a major resource for both prosecutors and defense attorneys, letting them glean more insight than they can get from jury questionnaires, said Joseph Rice, chief executive officer of Jury Research Institute in Alamo, California.

“Social media has given us an incredible tool, because it’s something jurors voluntarily engage in, and they post information about their activities or affiliations or hobbies,” Rice said. That reveals “their life experience or attitude that may have an impact on how they view the facts of the case.”

The practice adds fuel to the debate over social-networking privacy and whether Internet postings should be used to reject someone from a job or academic program -- or a seat in the jury box. Facebook has more than 500 million users, while Twitter members post 140 million messages daily. That yields a wealth of data that lawyers can use to screen people or hone arguments.

David Wenner, a partner at Snyder & Wenner in Phoenix, said any piece of information about a juror’s life that’s relevant to a case could help determine who may be biased.

“Let’s say you have a case involving an emergency room -- you’re suing a hospital for negligence,” he said. “Wouldn’t it be nice to know that there’s some picture posted on a website of you attending some hospital charity event?”
Definition of Friend

If jurors aren’t truthful about their social-networking connections during vetting, convictions can be overturned. Take the 2008 example of Amber Hyre, a West Virginia juror who didn’t disclose that she was MySpace friends with the defendant, a police officer being tried on criminal charges. After the relationship came to light, a state appeals court threw out the defendant’s conviction and ordered a new trial.

Hyre, who lives in Gassaway, West Virginia, said the defendant had requested to be her friend before the trial, and she accepted. When he posted messages about being depressed, she sent him a note online to cheer him up. During jury selection, she was asked if she had ever visited the defendant’s house or had other interactions, which she hadn’t.

“Maybe I should have said he was on my MySpace page, but then I thought to myself, I really don’t know him, so I’m really not lying,” Hyre, 30, said in an interview. Since then, she’s been “much more cautious” about whom she communicates with online.
Easier Detective Work

To ensure lawyers aren’t surprised, companies are selling social-media monitoring services. DecisionQuest, a trial consulting firm, started offering it three years ago, said Christine Martin, a senior consultant with the firm in New York.

“In the old days, they could use private investigators,” Martin said. “This just makes it a lot easier.”

She cites an example last year of a Michigan woman who was removed from a jury because she said on Facebook that the defendant was guilty -- before arguments were finished.

In the Bonds case, jurors had to agree in writing not to communicate about the case via social media, the Internet “or any other means, electronic or otherwise,” according to a filing in federal court in San Francisco.
Jury Questionnaire

That language was added to the jury questionnaire, an unusual step, said Chris St. Hilaire, president of Jury Impact, a consulting firm in Costa Mesa, California. It’s more routine for judges to admonish jurors verbally not to discuss the case outside of court.

Assistant U.S. Attorney Jeff Nedrow, who is prosecuting Bonds and participated in jury selection, declined to comment, as did Allen Ruby, an attorney for Bonds.

There are rules governing how far firms and lawyers can go to obtain the information, said DecisionQuest’s Martin.

“You can’t use trickery to get someone to friend you or get behind their privacy wall,” she said. “It’s a breach of legal ethics.”

Even so, the searches raise privacy questions, said Kurt Roemer, chief security strategist of Citrix Systems Inc., a software company in Fort Lauderdale, Florida. He focuses on Internet security and privacy issues.

If potential jurors are concerned, they should limit who can see their profiles to friends only, he said. They also need to be mindful of location-based applications, such as Foursquare, which broadcast a person’s location for all the world to see, Roemer said.

In Danger?

“They definitely expose your privacy and erode your anonymity,” he said. “From a jury perspective, you want to be really careful that people don’t know who you are, that you’re on the jury, that you’re actively considering this type of a case, because they could try to influence you or potentially even harm you.”

In some cases, an Internet search can reveal when potential jurors lie during questioning, said Kathy Kellermann, who runs a litigation consulting firm in Marina del Rey, California.

She says she worked on a case where a prospective juror indicated he had never been in court for any reason. It turns out the person served as an expert witness as part of his job -- something Kellermann found in a Google search.

Twitter, a site that lets users share 140-character messages, is rife with jury members posting their thoughts. A search for the term “juryduty” brings up new posts every few minutes. Comments range from observations about other people in the jury pool to remarks such as, “Dear judge, thank you for a two-hour lunch break. I needed the rum and Coke to carry on.”

If a juror suggests online that a witness didn’t seem believable, or that she’s made up her mind about the evidence without a judge’s guidance, “that would be something that you’d like to bring to somebody’s attention,” said Rice, the litigation consultant. “That’s inappropriate activity.”

Courts are still hashing out how to handle social media, especially in high-profile cases, he said.

“The court system is struggling to understand the roles that technology can play in a juror’s life,” Rice said, “and how to keep that genie in a bottle.”

By Ryan Flinn,

Source: Bloomberg

Texas illegally obtaining lethal drugs: lawyers

The lawyers of two Texas death row inmates asked Attorney General Eric Holder Wednesday to open an investigation on the state's alleged illegal purchases of lethal injection drugs.

In a letter made public by the lawyers, they said they had uncovered official documents through a Freedom of Information Act request that "leads us to believe that the Texas Department of Criminal Justice has violated the federal Controlled Substances Act."

According to the lawyers, the state has purchased for the past 25 years controlled substances used in lethal injections by using a Drug Enforcement Administration registration number for the the Huntsville Unit Hospital, which has been closed since 1983.

The Texas execution chamber is located in the same city.

"As a result, we believe that TDCJ is unlawfully in possession of and unlawfully dispensing controlled substances," the lawyers said.

Prison authorities did not immediately respond to AFP's requests for comment.

Attorneys for condemned convicts Cleve Foster and Humberto Leal noted that the products used by correctional authorities to carry out executions were "neither kept by a pharmacy, hospital or clinic, nor dispensed by an authorized practitioner through a prescription or otherwise."

Rather, they were kept inside the state's Huntsville unit where executions take place by TDCJ staff, rather than officials legally authorized to be in possession of the drugs.

"Given these potential violations of federal law and the resulting impact on the legality of the executions imminently contemplated, we respectfully urge you to direct appropriate agencies within your department to conduct a prompt and thorough investigation of these issues," the lawyers wrote.

Their letter was also addressed to Texas Department of Public Safety chief Steve McCraw.

"Federal and state laws governing the purchase, possession and transfer of controlled substances exist to guard against diversion, and ensure the efficacy and lawful use of these drugs," said Maurie Levin, an Austin attorney who represents Foster.

"For TDCJ to have misrepresented for 25 years the information the DEA relies upon to assess the legitimacy of these drugs reflects a profound disregard for protocol and the law."

On Tuesday, Levin had asked a court to stop the executions of Foster, who is to be executed April 5, and Leal, whose execution has been scheduled for July 7, claiming Texas violated procedure when it switched drugs to be used for lethal injections.

Texas, which executes more inmates than any other US state, announced March 16 that it will replace thiopental with pentobarbital, an anesthetic commonly used to euthanize animals.

Sodium thiopental is no longer manufactured in the United States and existing stocks are expiring.

Texas made the switch because its sodium thiopental expires at the end of March, according to Michelle Lyons, public information director for the Texas Department of Criminal Justice.

But lawyers for the inmates argue that Texas failed to follow administrative procedure requiring public notification of such changes.


Source: Google News