The Roanoke Times reported here on Saturday that a court order has been entered referring to Judge Glen Conrad for mediation the case brought by the estate of a former Wallens Ridge inmate against the Department of Corrections and others over the death of the inmate, allegedly as the result of the use of a stun gun.
I don't know what were the circumstances leading to this order. As in most things, the practice in the Western District is informal. What sometimes happens is that the judge will ask the parties whether they want to have a magistrate judge serve as mediator, and give them some chance to proceed with the mediation if that's what they want to do. I was surprised to hear at the 4th Circuit Judicial Conference that the Fourth Circuit's own mandatory mediation program results in settlements a third of the time. I've never come close to mediating a case in the Fourth Circuit - it seems to me difficult to compromise after someone has already been declared the winner. The uncertainty that generates settlement is harder to argue on appeal.
I never knew Judge Ted Dalton of the W.D. Va. He died in 1989, after more than 30 years on the bench. He was appointed by President Eisenhower after his second campaign for governor, which he lost to Lindsay Almond in 1957. (A good book about the 1957 election and other aspects of the career of J. Lindsay Almond, Jr., who was later a federal judge himself, is this one by Roanoke Times writers Ben Beagle and Ozzie Osborne.)
I have heard lawyers and judges describe how Judge Dalton could be very active in pushing settlements in civil cases. The closing thing to that kind of experience that I have had in the Western District (or elsewhere) was in Roanoke some years ago when, before the damages phase of the trial began, I got my money people on the telephone and got the trial judge (not Judge Dalton) to talk to them, and he said essentially this: "Good morning. It's my opinion that the jury will award substantially more than $200,000 in this case." Then he handed the phone back to me, said the trial would start again in five minutes, and left the room. Five minutes later, when he called the jurors into the courtroom, he told them to go home, since by then we had settled the case.
My favorite judge-aided settlement story of all time, though, involved a case where another federal judge from the W.D. Va. gave the lawyers (either at my request or with my enthusiastic agreement) one hour to try to settle a case before he ruled on my motion for a preliminary injunction. An hour later, he came back out, and when we told him that the case was over, he said very well, and went back to his office. As we were packing to leave, the opposing counsel said to me, "I wonder how the judge was going to rule on your motion for preliminary injunction." Seeing the possibilities, I told him that I thought the judge would probably tell us, if we asked, and so we went back to his chambers, and sure enough, the judge told us what he would have done - a rare chance to find out instantly whether the settlement was a good idea. (For my side, it was, and I have retold versions of that story 100 times, make it now 101.)
Sunday, August 31, 2003
Virginia's ceremonial governor
This week's column from Barney Day concludes that Governor Warner may be the Commonwealth's first "ceremonial" governor since the 1950s.
The economy by the numbers in one Southwest Virginia county
This article from the Smyth County News tells the tale of the numbers on the economy in Smyth County, Virginia:
Regarding the county, the article says:
"Smyth County is struggling to survive in a difficult state and national economic climate. According to 1990 and 2000 U.S. Census figures, the county’s population grew by about 700 people during the decade. However, labor force numbers have dropped significantly, as has the Smyth County Schools student population.
Official unemployment numbers among Smyth County workers dropped in July. June unemployment was 9.8 percent and July figures showed 259 more people working, for an 8.6 percent unemployment rate.
However, Smyth County’s overall employment has dropped by 1,012 working people in the past ten years. Oddly enough, the 1993 unemployment rate was 11.7 percent, the highest of the decade. Yet the July 2003 unemployment rate is 8.6 percent – 3.1 percent lower – when 1,000 less people are actually working in Smyth County.
If Smyth County still had its 17,888 labor force calculated in 1993, with this July’s number of employed workers (14,792), the unemployment figure for 2003 would be more than 17 percent.
What makes the difference is the labor force headcount has dropped by 1,384 – a reduction of 8.6 percent from the 1993 levels. During the past 10 years, despite the reported population increase, some workers have left Smyth County, some have started working outside the county, and others returned to school or stopped seeking work for other reasons.
Perhaps the most evident shift in Smyth County is the dropping school population. From school years ending in June 1993 to June 2003, the Smyth County school system lost almost 300 students from its overall population. School officials expect far more student losses this year."
Regarding the county, the article says:
"Smyth County is struggling to survive in a difficult state and national economic climate. According to 1990 and 2000 U.S. Census figures, the county’s population grew by about 700 people during the decade. However, labor force numbers have dropped significantly, as has the Smyth County Schools student population.
Official unemployment numbers among Smyth County workers dropped in July. June unemployment was 9.8 percent and July figures showed 259 more people working, for an 8.6 percent unemployment rate.
However, Smyth County’s overall employment has dropped by 1,012 working people in the past ten years. Oddly enough, the 1993 unemployment rate was 11.7 percent, the highest of the decade. Yet the July 2003 unemployment rate is 8.6 percent – 3.1 percent lower – when 1,000 less people are actually working in Smyth County.
If Smyth County still had its 17,888 labor force calculated in 1993, with this July’s number of employed workers (14,792), the unemployment figure for 2003 would be more than 17 percent.
What makes the difference is the labor force headcount has dropped by 1,384 – a reduction of 8.6 percent from the 1993 levels. During the past 10 years, despite the reported population increase, some workers have left Smyth County, some have started working outside the county, and others returned to school or stopped seeking work for other reasons.
Perhaps the most evident shift in Smyth County is the dropping school population. From school years ending in June 1993 to June 2003, the Smyth County school system lost almost 300 students from its overall population. School officials expect far more student losses this year."
More on Interstate 81
Mike Still of the Bristol paper had this excellent article on Interstate 81, discussing at length the difficulties with its overcrowding and the difficulties with the solutions.
Among the highlights -
1. The article notes Senator Wampler's opposition to the element of one of the plans calling for tolls for all traffic.
2. The article says both contractors' plans involve no element of improved rail transportation in Southwest Virginia.
3. The possible $1 billion in federal money already carries the proviso that there must be separate truck lanes - before the state has had a chance to decide whether that is a good idea.
Among the highlights -
1. The article notes Senator Wampler's opposition to the element of one of the plans calling for tolls for all traffic.
2. The article says both contractors' plans involve no element of improved rail transportation in Southwest Virginia.
3. The possible $1 billion in federal money already carries the proviso that there must be separate truck lanes - before the state has had a chance to decide whether that is a good idea.
More on tower siting in Virginia
The Washington Post has this article on another cellular tower siting controversy, this time in Loudoun County.
Early this year, the Fourth Circuit heard oral argument in an interesting tower siting case from Montgomery County in Southwest Virginia - Judge Kiser's opinion for the district court is here.
Early this year, the Fourth Circuit heard oral argument in an interesting tower siting case from Montgomery County in Southwest Virginia - Judge Kiser's opinion for the district court is here.
On motor sports and economic development in Virginia
This AP report notes in connection with the new motorsports economic development initiative that Southwest Virginia and other rural parts of the Commonwealth have a history with auto racing. Apparently, once there were tracks at Haysi, St. Paul, and Breaks.
About 30 some years ago, I went to the race track at Coeburn, when my aunt Lois was "Miss Lonesome Pine" and road in the pace car. It's still business, so far as I know.
About 30 some years ago, I went to the race track at Coeburn, when my aunt Lois was "Miss Lonesome Pine" and road in the pace car. It's still business, so far as I know.
On reporting crime data in schools
The Roanoke Times has this report which concludes that state and federal law creates an incentive for Virginia's schools to under-report crime on campus.
The articles explains that "[t]he Code of Virginia, the federal Gun-Free Schools Act and the federal Safe and Drug-Free Schools Act require state schools to report all incidents that occur on school property involving assaults, sexual crimes, firearm possession, drug crimes, explosive or incendiary devices, bomb threats and threats to staff," and that "[t]he new federal law contains a provision that will label a school as 'persistently dangerous' if it does not meet state-set guidelines for three years in a row. Each state adopted its own criteria for identifying 'persistently dangerous schools.'" The federal legislation "will allow parents to remove their children from schools that have consistent safety problems."
The articles explains that "[t]he Code of Virginia, the federal Gun-Free Schools Act and the federal Safe and Drug-Free Schools Act require state schools to report all incidents that occur on school property involving assaults, sexual crimes, firearm possession, drug crimes, explosive or incendiary devices, bomb threats and threats to staff," and that "[t]he new federal law contains a provision that will label a school as 'persistently dangerous' if it does not meet state-set guidelines for three years in a row. Each state adopted its own criteria for identifying 'persistently dangerous schools.'" The federal legislation "will allow parents to remove their children from schools that have consistent safety problems."
Saturday, August 30, 2003
Results of Saturday night multi-tasking experiment
Based on this evening's experience, it is barely possible to listen to this season's first broadcast of a U.Va. football game (via Yahoo! Sports), read the updated play-by-play and stats on Gametracker via CollegeSports.com, catch up on the unread e-mail at the house and the office, and do a little blogging at the same time.
This would never happen at Wellmont-Bristol
The Washington Post had this story, which I read in local papers this morning, about a woman who died after she was given the wrong blood because she had changed beds in her semi-private room before bowel resection surgery.
The hospital in Bristol (as of the last time I was there) has only private rooms.
The hospital in Bristol (as of the last time I was there) has only private rooms.
Qualified immunity denied on wrongful arrest claim against former Virginia sheriff
This somewhat obscure article suggests that Judge Hudson of the E.D. Va. has denied a qualified immunity motion of a former Virginia sheriff seeking dismissal of a civil suit for wrongful arrest.
How to find legal news, and still a place for print media
Having read this article (via Inter Alia) on how to find legal news, I think I do all of these things (sometimes).
Inter Alia also has a link to this article on why Google is not enough for legal research, and print sources are still valuable.
In our small office, when a good book goes missing, I am the usual suspect - but not always guilty. Some years ago, my now-partner and then-boss sent me after some book and I came back empty-handed and told him that all I found on the shelf where the volume should have been was a business card saying that he had it.
Inter Alia also has a link to this article on why Google is not enough for legal research, and print sources are still valuable.
In our small office, when a good book goes missing, I am the usual suspect - but not always guilty. Some years ago, my now-partner and then-boss sent me after some book and I came back empty-handed and told him that all I found on the shelf where the volume should have been was a business card saying that he had it.
Two books I bought today
I am not a "booksnake" like my wife's uncle David, but there are some books that I have to buy, and two I just bought are An Affair of Honor by Richard Marius and Trial and Error by John Tucker (both shown in the margin, I think).
Richard Marius died a few years ago - his Bourbonville books are just about my favorites. I have read After the War over and over.
Like about everyone who graduated from the law school at William & Mary, I once met John Tucker at his house on the Chickahominy, where he lives with his wife, Professor Jayne Barnard. They came to Virginia from Chicago. I started law school in 1986, just when the Bears were at their best, and the refrigerator in the house of Mr. Tucker had on it a large poster of William "the Refrigerator" Perry. (The only time I saw Perry play I think the score was Clemson 55, Virginia 0.) Mr. Tucker wrote the book about the Roger Coleman case from Buchanan County, which I have read many times and recommended to my lawyer friends and surely mentioned on this blog.
Richard Marius died a few years ago - his Bourbonville books are just about my favorites. I have read After the War over and over.
Like about everyone who graduated from the law school at William & Mary, I once met John Tucker at his house on the Chickahominy, where he lives with his wife, Professor Jayne Barnard. They came to Virginia from Chicago. I started law school in 1986, just when the Bears were at their best, and the refrigerator in the house of Mr. Tucker had on it a large poster of William "the Refrigerator" Perry. (The only time I saw Perry play I think the score was Clemson 55, Virginia 0.) Mr. Tucker wrote the book about the Roger Coleman case from Buchanan County, which I have read many times and recommended to my lawyer friends and surely mentioned on this blog.
Friday, August 29, 2003
Train hits car, words follow
Ernie Svenson has this legal writing post - with many interesting reader comments - about how to improve this sentence:
"A locomotive operated by Illinois Central Railroad Company (Illinois Central) injured Kelli Smallwood when it struck the automobile in which she was travelling."
"A locomotive operated by Illinois Central Railroad Company (Illinois Central) injured Kelli Smallwood when it struck the automobile in which she was travelling."
Denial of funds for DNA expert held to be reversible error
In Sanchez v. Com., the Virginia Court of Appeals in an opinion by Judge Annunziata joined by Chief Judge Fitzpatrick and Judge Clements reversed the appellant's hit-and-run conviction and other convictions on account of the trial court's failure to provide funding for a DNA expert to rebut the Commonwealth's evidence about whose DNA was at the accident scene.
Custody decision remanded because trial judge failed to state basis
In Kane v. Szymczak, the Virginia Court of Appeals in an opinion by Judge Kelsey joined by Judge Elder reversed and remanded an order granting custody to appellant's ex-husband of their children, where the trial court failed to comply with Va. Code § 20-124.3, which requires that "The judge shall communicate to the parties the basis of the decision either orally or in writing." Judge Baumgardner dissented, concluding that the circuit court's letter in context met the requirements of the statute.
Blogging articles just received and read
From FindLaw -
IF BORK HAD BLOGGED - THE OPPORTUNITIES AND DANGERS OF LAWYER BLOGGING
By David Maizenberg for Modern Practice
ESSENTIAL BLOGGING - Book Review
By Cory Doctorow et al., reviewed by Patrick O¹Keefe for Sitepoint
MARKETING DIRECTLY TO CLIENTS AND PROSPECTS WITH WEBLOGS
By Larry Bodine
IF BORK HAD BLOGGED - THE OPPORTUNITIES AND DANGERS OF LAWYER BLOGGING
By David Maizenberg for Modern Practice
ESSENTIAL BLOGGING - Book Review
By Cory Doctorow et al., reviewed by Patrick O¹Keefe for Sitepoint
MARKETING DIRECTLY TO CLIENTS AND PROSPECTS WITH WEBLOGS
By Larry Bodine
AG sees nothing wrong with Commandments in courthouse
The Winchester paper reports here that Attorney General Kilgore disagrees with court rulings requiring the removal of the Ten Commandments from courthouses, and says that since Virginia is not in the same circuit as Alabama, he has no plans to have anything removed from public buildings in Virginia.
Just one big happy family
As reported here, Senator Russell Potts and his former opponents are loosely reunited against Democrats.
Looking for "equal" benefits in Charlottesville
This commentary in the Cavalier Daily urges the administration to evade the legal advice from Attorney General Jerry Kilgore and find a way to provide "domestic partner" benefits for employees of the University.
Thursday, August 28, 2003
No. 47 said to No. 3 . . .
The Trademark Blog has this interesting post on numbers as marks, which says, among other things:
"My unscientific speculation is that Chanel's trademark, No. 5, is the most famous number trademark. Pizzeria Uno's trademark lawyer has contacted me to suggest that UNO is the most famous number trademark. Levi's owns 501 and 505 (it shares 505 with a cleaning solution). And let's not forget 007."
Also, on numerology, earlier this week, I heard of the complicated deal between two Miami Dolphins players over the return of No. 27 to Terrell Buckley, who made a pact that he would pay his teammate for the right to wear his old number.
The Miami Herald has this account of the jersey deal:
"The base-salary portion of the contract, worth in excess of $7,000, stipulates that after Miami's preseason game against Atlanta last week, Freeman would relinquish his number.
''If the game ended at 11 p.m., at 11:01 he could no longer touch No. 27,'' Buckley said.
The contract even has incentive clauses. If Buckley goes to the Pro Bowl, if he gets a certain number of interceptions, if he scores a certain number of touchdowns off those interceptions, he must pay Freeman more money for the number.
''We negotiated this thing for two weeks,'' Buckley said. ``I'm serious. I was just going to drop the issue altogether, but my family kept hounding me to get back my old number. This is what it took.''
"My unscientific speculation is that Chanel's trademark, No. 5, is the most famous number trademark. Pizzeria Uno's trademark lawyer has contacted me to suggest that UNO is the most famous number trademark. Levi's owns 501 and 505 (it shares 505 with a cleaning solution). And let's not forget 007."
Also, on numerology, earlier this week, I heard of the complicated deal between two Miami Dolphins players over the return of No. 27 to Terrell Buckley, who made a pact that he would pay his teammate for the right to wear his old number.
The Miami Herald has this account of the jersey deal:
"The base-salary portion of the contract, worth in excess of $7,000, stipulates that after Miami's preseason game against Atlanta last week, Freeman would relinquish his number.
''If the game ended at 11 p.m., at 11:01 he could no longer touch No. 27,'' Buckley said.
The contract even has incentive clauses. If Buckley goes to the Pro Bowl, if he gets a certain number of interceptions, if he scores a certain number of touchdowns off those interceptions, he must pay Freeman more money for the number.
''We negotiated this thing for two weeks,'' Buckley said. ``I'm serious. I was just going to drop the issue altogether, but my family kept hounding me to get back my old number. This is what it took.''
Wednesday, August 27, 2003
Why software companies are not liable for damages resulting from security flaws
This article describes the reasons why software companies - i.e., Microsoft - are generally not liable for damages resulting from security flaws - the main reason being, the enforcement of boilerplate liability limitations in the End User License Agreements.
Fourth Circuit reverses $500,000+ in fees and costs for "marginally successful" case
In Knussman v. State of Maryland, the Fourth Circuit in a per curiam opinion for the panel of Judges Widener, Williams, and Traxler reversed the trial court's award of more than $500,000 in attorneys' fees and costs, in a section 1983 case where many of the claims and parties were dismissed, and the jury verdict for emotional distress was reduced to $40,000.
Failure to cooperate on discovery means no discovery sanctions against opponent
Last week's ABA Journal has this story about an appellate decision, the gist of which is that a plaintiff's lawyer who aggressively sought discovery without cooperating with the other side would not be allowed sanctions for discovery violations by the opponent.
I have not litigated too many discovery motions in recent years, partly because I am determined to make a strong record in advance before any such motion and partly because the court-ordered results of discovery motions are often unsatisfactory - the Court is often in the worst position of anyone to figure out enough about the case to know what is reasonable and what isn't.
One discovery motion that I contested some years ago, that generates the occasional telephone call and gets cited every now and then (sometimes against me), is described in a published opinion, Terwilliger v. York Intl. Corp., 176 F.R.D. 214 (W.D. Va. 1997), in which the Court recognized limits on the right to discovery of some kinds of private information about an individual plaintiff.
I have not litigated too many discovery motions in recent years, partly because I am determined to make a strong record in advance before any such motion and partly because the court-ordered results of discovery motions are often unsatisfactory - the Court is often in the worst position of anyone to figure out enough about the case to know what is reasonable and what isn't.
One discovery motion that I contested some years ago, that generates the occasional telephone call and gets cited every now and then (sometimes against me), is described in a published opinion, Terwilliger v. York Intl. Corp., 176 F.R.D. 214 (W.D. Va. 1997), in which the Court recognized limits on the right to discovery of some kinds of private information about an individual plaintiff.
Virginia senator seeks clarification from AG on school gun ban
According to this AP story, Senator Kevin Miller from Harrisonburg has asked Attorney General Kilgore for a formal opinion on the question of "whether a local ban on firearms on school property conflicts with a new state law."
More on the dissent in the Hamdi case
Editorialists, such as this one, critical of the government's expanded powers continue to focus on the dissenting opinions from the Hamdi case.
Retired judge to make life-or-death decision where family disagrees
The Daily Press has this article on the terrible story of a family split on the decision whether to keep their 26 year-old son/brother/fiancee on life support at the hospital in Charlottesville, and the guardian who has been appointed to resolve the dispute.
Natural gas storage operations gets started at Saltville
According to this press release, a natural gas storage operation is about to get started at Saltville in Smyth County, using an "underground salt cavern facility."
Why should private law offices have all the fun?
The Washington Post reports here that computers have been slowed at the offices of the nation's U.S. attorneys because of some worm or virus.
I'm sure that these offices are obvious targets and that keeping their computers secure is a big job.
I'm sure that these offices are obvious targets and that keeping their computers secure is a big job.
Counting broadband penetration in Southwest Virginia
This chart shows that 6% of the market in the Roanoke/Lynchburg area have broadband service, while this article relates that almost 15% of the homes in Bristol, Virginia, are now buying broadband from Bristol Virginia Utilities.
Bedford woman acquitted of murder on insanity defense
Via Virginia Lawyers Weekly, the Lynchburg paper has this account of the acquittal of a Bedford county woman who claimed that because of her insanity she should be found innocent of criminal charges for fatally shooting her husband.
The article says, in part:
"Bowles suffers from a delusional disorder that is aggravated by a methamphetamine addiction, Padgett said.
She thought for years that Morris was trying to kill her and told police on the night of the shooting that it was either him or her.
Bowles said she also thought Morris had killed his first wife for insurance money because he would change the channel when “Unsolved Mysteries” came on television.
She also thought he was planning to do the same thing to her and that’s what she told police after they arrested her for shooting him on April 12, 2001.
“She had the idea that her husband had always been against her. She also has delusions that her own lawyer and myself were against her,” Padgett told Updike.
Clinical psychologists described Bowles’ illness as a “Delusional Disorder, persecutory type.” They also said that even though she suffered from delusions, she could also “act normal” well enough to fool some experts.
“That’s why she’s dangerous,” Padgett said.
According to psychological evaluations done by both the defense and the state psychologists, Bowles believed for years that Morris was really another man named Edward Armistead Thomas and that he had had plastic surgery done to disguise himself.
She also thought that Morris was part of the Pagans motorcycle gang and that he knew all the police officers in town, who therefore wouldn’t believe anything she said, Padgett said."
The article says, in part:
"Bowles suffers from a delusional disorder that is aggravated by a methamphetamine addiction, Padgett said.
She thought for years that Morris was trying to kill her and told police on the night of the shooting that it was either him or her.
Bowles said she also thought Morris had killed his first wife for insurance money because he would change the channel when “Unsolved Mysteries” came on television.
She also thought he was planning to do the same thing to her and that’s what she told police after they arrested her for shooting him on April 12, 2001.
“She had the idea that her husband had always been against her. She also has delusions that her own lawyer and myself were against her,” Padgett told Updike.
Clinical psychologists described Bowles’ illness as a “Delusional Disorder, persecutory type.” They also said that even though she suffered from delusions, she could also “act normal” well enough to fool some experts.
“That’s why she’s dangerous,” Padgett said.
According to psychological evaluations done by both the defense and the state psychologists, Bowles believed for years that Morris was really another man named Edward Armistead Thomas and that he had had plastic surgery done to disguise himself.
She also thought that Morris was part of the Pagans motorcycle gang and that he knew all the police officers in town, who therefore wouldn’t believe anything she said, Padgett said."
More on rural telecommunications
Here is the agenda for Rural TeleCon '03, co-sponsored by the Appalachian Regional Commission and the Rural Broadband Coalition, and here is an announcement for the FCC Rural Wireless Internet Service Provider (WISP) Showcase and Workshop, both events to be held in September in Washington, D.C. I've been wondering about the status of the Dickenson County wireless internet program.
One thing I get from the municipal telecom seminars that I have attended, involving statewide and national groups, is that people know about Bristol and Southwest Virginia, almost in the same way that NASCAR fans know about Bristol.
One thing I get from the municipal telecom seminars that I have attended, involving statewide and national groups, is that people know about Bristol and Southwest Virginia, almost in the same way that NASCAR fans know about Bristol.
Not much hope for defense of Ten Commandments display in Sullivan County
According to this report, the attorney for Sullivan County will defend the Ten Commandments display in Blountville if asked, but he is not optimistic that a court would not order its removal.
Dan Street is the county attorney, which I think is an elected position in Sullivan County. A long time ago, he came to a Bristol TN bar meeting and introduced himself, and he made no particular impression, but in subsequent years as I have mostly read and sometimes heard of his work since he took office, it is my impression that he does a good job for the county, which has what seems to me like an governing structure, so many commissioners (24 of them listed here) I would expect that it would be difficult to much done.
Dan Street is the county attorney, which I think is an elected position in Sullivan County. A long time ago, he came to a Bristol TN bar meeting and introduced himself, and he made no particular impression, but in subsequent years as I have mostly read and sometimes heard of his work since he took office, it is my impression that he does a good job for the county, which has what seems to me like an governing structure, so many commissioners (24 of them listed here) I would expect that it would be difficult to much done.
Management of TennCare liberated by settlement of 4 long-running suits
Governor Bredesen in Tennessee announced the settlement of four lawsuits, in which court orders imposed a crazy quilt of obligations on what is now TennCare, as described in this Kingsport Times article.
Welcome back, Wilson
Yesterday, the Roanoke Times reported here that the Virginia State Bar has recommended the reinstatement of lawyer Doug Wilson, who lost his license after he was convicted in federal court for giving tax advice that somehow crossed the line, in a case where his client testified against Wilson and the client did not, so far as I recall, go to jail, at least not for the tax problem. Judge Turk was the trial judge, who overturned the conviction but was reversed on appeal, and he wrote to the State Bar in support of Wilson's reinstatement. The article says that the Virginia Supreme Court gets the final word on whether Wilson will be reinstated to the practice of law in Virginia.
The Virginia Supreme Court reinstated Wise County attorney Carl McAfee in somewhat similar circumstances, about the time that I became a practicing lawyer. Mr. McAfee's suspension is mentioned in this article by ethics specialist James McCauley from the Virginia Lawyer Register for May 2003, titled "Feds Draft Lawyers to Fight War on Terrorism: Anti-Money Laundering Laws and the USA Patriot Act."
The Virginia Supreme Court reinstated Wise County attorney Carl McAfee in somewhat similar circumstances, about the time that I became a practicing lawyer. Mr. McAfee's suspension is mentioned in this article by ethics specialist James McCauley from the Virginia Lawyer Register for May 2003, titled "Feds Draft Lawyers to Fight War on Terrorism: Anti-Money Laundering Laws and the USA Patriot Act."
Tuesday, August 26, 2003
Will "Big Stone Gap" be filmed in Canada?
Adriana Trigiani said in Wytheville last week that the film version of her book Big Stone Gap might be made in Canada, according to this report.
Fourth Circuit affirms death penalty in Montgomery County murder case
In Reid v. True, the Fourth Circuit in a decision by Chief Judge Wilkins, joined by Judges Gregory and Shedd, affirmed the denial of habeas corpus in a murder case from Montgomery County, Virginia, in which the defendant was sentenced to be executed for stabbing to death an 80 year-old woman. The Virginia Supreme Court affirmed the defendant's conviction and sentence on direct appeal in Reid v. Com, 256 Va. 561, 506 S.E.2d 787 (1998), in an opinion by Justice Kinser.
The opinion mostly deals with explaining the substance and purpose of the Fourth Circuit's new Local Rule 22(a), dealing with certificates of appealability in post-conviction appeals. I'm not sure that I have ever seen an opinion which deals at such length in explaining a local rule of court - should one set of three judges, even with the Chief Judge among them, be allowed to submit a lengthy advisory opinion on what a new rule means, in ways that might go beyond the requirements of the particular case, almost as if they were providing a commentary to the new rule?
The opinion mostly deals with explaining the substance and purpose of the Fourth Circuit's new Local Rule 22(a), dealing with certificates of appealability in post-conviction appeals. I'm not sure that I have ever seen an opinion which deals at such length in explaining a local rule of court - should one set of three judges, even with the Chief Judge among them, be allowed to submit a lengthy advisory opinion on what a new rule means, in ways that might go beyond the requirements of the particular case, almost as if they were providing a commentary to the new rule?
Trial court must award costs or explain why not
In the case of In re: Bonds Distributing, the Fourth Circuit in a per curiam opinion for the panel of Judges Widener, Michael, and Motz, reversed and remanded the final judgment entered in the case for the trial court to award costs or explain why not, and also to take action on whether to provide relief from the supersedeas bond filed in connection with an earlier appeal.
Judge Jones has denied costs a time or two. In one of my cases, I asked that the plaintiff be required to pay restitution to his employer of the employer's payments for his health insurance while the case was on appeal. The judge held that restitution was a matter of discretion and it would be unfair to require the plaintiff to pay back that money. In another case, Judge Jones denied the usual costs to the defendant in a slip-and-fall case, in this opinion, where the facts included these: "In the present case it is undisputed that Mrs. Crusenberry is in her eighties, is physical disabled, lives alone in an apartment, has meager assets consisting of her furniture and an amount saved for her burial, and subsists only on her monthly government checks." When I first read that opinion, I thought, oh no, the defense lawyers have stepped in it, won the case but gone too far, looking for costs from a crippled old lady.
Judge Jones has denied costs a time or two. In one of my cases, I asked that the plaintiff be required to pay restitution to his employer of the employer's payments for his health insurance while the case was on appeal. The judge held that restitution was a matter of discretion and it would be unfair to require the plaintiff to pay back that money. In another case, Judge Jones denied the usual costs to the defendant in a slip-and-fall case, in this opinion, where the facts included these: "In the present case it is undisputed that Mrs. Crusenberry is in her eighties, is physical disabled, lives alone in an apartment, has meager assets consisting of her furniture and an amount saved for her burial, and subsists only on her monthly government checks." When I first read that opinion, I thought, oh no, the defense lawyers have stepped in it, won the case but gone too far, looking for costs from a crippled old lady.
More on zealous representation (and reporting) in Wise County and elsewhere
For another view on the Coalfield Progress story about the lawyer who interviewed the alleged rape victim at the defendant's house, here is the take from Ken of CrimLaw.
Ken finds that there is a lot missing from the article, information he'd like to know. Strangely, I thought the article was full of interesting facts, particularly since I know the lawyers and the reporter, O'Donna Ramsey, who writes many delightful articles about courthouse matters from Wise County.
I had a case years ago where, when it was done and my side had won on summary judgment, I wrote up sort of a press release, got it approved by the client, and sent it to the Bristol paper, which printed it almost as written, and to the local weekly (in another county), which made a complete hash out of it, in spite of my best efforts to spoon feed the story to them. Strangest of all, in the reporting of that case, the reporter for the weekly ended every article he wrote with the suggestion that for further information, his readers should call the deputy clerk of U.S. District Court, and gave her office phone number.
Ken finds that there is a lot missing from the article, information he'd like to know. Strangely, I thought the article was full of interesting facts, particularly since I know the lawyers and the reporter, O'Donna Ramsey, who writes many delightful articles about courthouse matters from Wise County.
I had a case years ago where, when it was done and my side had won on summary judgment, I wrote up sort of a press release, got it approved by the client, and sent it to the Bristol paper, which printed it almost as written, and to the local weekly (in another county), which made a complete hash out of it, in spite of my best efforts to spoon feed the story to them. Strangest of all, in the reporting of that case, the reporter for the weekly ended every article he wrote with the suggestion that for further information, his readers should call the deputy clerk of U.S. District Court, and gave her office phone number.
Front Royal citizens sue over Wal-mart rezoning
The Richmond Times-Dispatch has this account of the appeal filed by some Front Royal residents of the town's decision to rezone property to permit the construction of a new Wal-Mart on the edge of town.
New FCC rules on local telephone service and broadband viewed as gift to litigators
About six months ago, there was much hype over the FCC's new ruling on the extent to which the big incumbent local exchange carriers of telephone service would have to share their facilities with others, for local telephone service and for broadband data service. The outcome was announced at a press conference (that I saw replayed on C-SPAN) but the writing did not come out until last week, as described here (among other places), and this article covers the range of reactions to it, including one lawyer's statement that "Every word will be challenged," telecom lawyer Dana Frix told the Times. "My children will go to college on this stuff. This is a lawyer's dream."
Greatest bankruptcy story ever told
The Lee County Community Hospital went bankrupt, and was auctioned off by the bankruptcy court for money than enough money to pay all the creditors with some money left over for charity, as described here in the Kingsport Times interview with the head man of the successor entity, Mark Crawford of Lee Regional Medical Center, a subsidiary of Health Management Associates of Naples, FL.
The article says, in part:
The hospital filed for bankruptcy protection on July 20, 2000, after revelations of a massive fraud committed by the former chief executive officer, a doctor, a physical therapist and a lawyer who served on the board of directors. All four eventually received federal prison terms and at least two - the doctor and the CEO - are still incarcerated.
The men were convicted of participating in a $7 million kickback scheme involving contracts brokered by former CEO James Luther Davis, who remains in prison. Dr. Richard Norton also remains in prison. Two others prosecuted were physical therapist Michael Redman and Charles Fugate, a former board of directors chairman.
The hospital went on the auction block in April 2001, and HMA prevailed with its top bid of $24.9 million, which included cash, assumption of debt and other issues. Although a final order has not been entered, the case has all but concluded, and all creditors are expected to be paid in full by the end of the month, said A. Carter "Chip" Magee, bankruptcy lawyer for the defunct hospital.
After all debts are settled, there will be approximately $1.5 million left over for the establishment of a trust fund that can be used to help financially and medically needy Lee County residents obtain health care, said Magee.
Crawford clarified Thursday that this trust fund will be governed not by his facility's board of directors, but by the former LCCH board of directors. Magee has said the trust fund's bylaws call for the board to govern only until a new board of Lee County residents can be elected.
The article says, in part:
The hospital filed for bankruptcy protection on July 20, 2000, after revelations of a massive fraud committed by the former chief executive officer, a doctor, a physical therapist and a lawyer who served on the board of directors. All four eventually received federal prison terms and at least two - the doctor and the CEO - are still incarcerated.
The men were convicted of participating in a $7 million kickback scheme involving contracts brokered by former CEO James Luther Davis, who remains in prison. Dr. Richard Norton also remains in prison. Two others prosecuted were physical therapist Michael Redman and Charles Fugate, a former board of directors chairman.
The hospital went on the auction block in April 2001, and HMA prevailed with its top bid of $24.9 million, which included cash, assumption of debt and other issues. Although a final order has not been entered, the case has all but concluded, and all creditors are expected to be paid in full by the end of the month, said A. Carter "Chip" Magee, bankruptcy lawyer for the defunct hospital.
After all debts are settled, there will be approximately $1.5 million left over for the establishment of a trust fund that can be used to help financially and medically needy Lee County residents obtain health care, said Magee.
Crawford clarified Thursday that this trust fund will be governed not by his facility's board of directors, but by the former LCCH board of directors. Magee has said the trust fund's bylaws call for the board to govern only until a new board of Lee County residents can be elected.
Personal war story re-discovered about a case in Kentucky
The other day, I went to see the new Bristol, TN offices of the Penn Stuart law firm, and one of the lawyers there reminded me of the tall tales I used to tell about a case I had in Kentucky, and I told him that I had written some of them down a couple of years ago and posted them on a list serv, and that I would send them to him.
Today I found the stories, and here they are:
Some years ago I tried a case in Kentucky with local counsel. The judge
has since passed away.
When I appeared before him to be admitted to practice pro hac vice, the
judge said that my partner was ok but he'd have to hear oral argument on
whether I should be allowed to appear in the case, and started asking
questions. He asked where I went to law school and was told William and
Mary. The judge commented, "That must be a co-ed school." We were
bewildered at the counsel table. The judge explained, "well, you've got
both your William and your Mary, that makes it co-ed."
Later on, recalling that I was from out of town but not that I was also
from out of state, the judge asked me with which of the Lexington firms
did I work. Lexington is the "big city" in Eastern Kentucky. When I
reminded him that I was not from Lexington at all, he said it was all
right then. After he made the connection that we were from a town with a
popular NASCAR track, he told us how much he liked going to the races
there.
En route to a motion hearing in the case, I was running late and got
stopped for speeding, and called ahead telling them to try to move us
back in the docket until I got there. As it turns out, I got there in
plenty of time, but someone had already told the judge that I had been
ticketed. When I rose to argue the motion, the judge said, "Mr. Minor, in
light of your recent brush with the law, have your civil rights been
restored to where you are able to argue this motion?" "Judge," I said,
"I'm innocent until proven guilty."
Our client was a company in the food business. At trial, one of the
essential company witnesses, a nice woman who worked in the bakery/deli,
was very shy and nervous and I wanted to get her on and off the stand as
quickly as possible. After a minimal cross-examination by plaintiff's
counsel, I jumped up and declared the witness was free to go. Detecting
my anxiety, the judge said "Not so fast, the Court has some questions."
My heart sank. The judge turned to the witness and said, "Are you the
woman who makes those fried chicken livers on Saturdays? I go up there
every weekend and spend all my money there." When the woman left the
courtroom and went out where the other witnesses were waiting, she
exclaimed, "He asked me about my chicken livers!"
In the same trial I tried to question another witness, who was a licensed
attorney working in-house for the company, about what he heard the
plaintiff say at the earlier hearing on her claim for unemployment
benefits. We expected some arguments about the admissibility of this
evidence, but no one mentioned the statute I had in mind. Instead, the
lawyer on the other side objected on the inscrutable grounds that the
witness "was going to testify about something he heard while he was a
lawyer." Before I could say anything in response, the judge ruled, even
more inscrutably, "Objection sustained, the witness can answer." I told
the judge I didn't understand his ruling. He pointed back to the table
where our local counsel was still seated and said, "go back over there
and find out." I thought he meant I could get the answer from local
counsel, who of course had no idea what the judge meant. As it turns out,
the judge meant for me to ask more questions, that the witness could say
what he heard but that the unemployment hearing transcript (which we had
not yet tried to introduce, but the witness held in his hands) would not
be allowed into the case as an exhibit.
Eventually, the judge grew tired of our evidence. The claim was about
hostile environment sexual harassment. After several of the plaintiff's
co-workers recounted incidents in which she was the one telling detailed
and unusual stories in the workplace about sexual matters, the judge
called me to the bench and let me know that no more such evidence would
be allowed. "This is a court of law," the judge said, "and we're not
going to have any more of that kind of talk in here."
When the jury retired, immediately upon the closing of the door to the
jury room, all of them laughed together so loudly we could hear them as
we were packing up in the courtroom. Some minutes later, the jury brought
back a the defense verdict, so we can laugh when these stories are
retold. As the day was fine, the local lawyer and I retired to the golf
course, and got in about 15 holes before dark, then I left to drive back
to Virginia.
Today I found the stories, and here they are:
Some years ago I tried a case in Kentucky with local counsel. The judge
has since passed away.
When I appeared before him to be admitted to practice pro hac vice, the
judge said that my partner was ok but he'd have to hear oral argument on
whether I should be allowed to appear in the case, and started asking
questions. He asked where I went to law school and was told William and
Mary. The judge commented, "That must be a co-ed school." We were
bewildered at the counsel table. The judge explained, "well, you've got
both your William and your Mary, that makes it co-ed."
Later on, recalling that I was from out of town but not that I was also
from out of state, the judge asked me with which of the Lexington firms
did I work. Lexington is the "big city" in Eastern Kentucky. When I
reminded him that I was not from Lexington at all, he said it was all
right then. After he made the connection that we were from a town with a
popular NASCAR track, he told us how much he liked going to the races
there.
En route to a motion hearing in the case, I was running late and got
stopped for speeding, and called ahead telling them to try to move us
back in the docket until I got there. As it turns out, I got there in
plenty of time, but someone had already told the judge that I had been
ticketed. When I rose to argue the motion, the judge said, "Mr. Minor, in
light of your recent brush with the law, have your civil rights been
restored to where you are able to argue this motion?" "Judge," I said,
"I'm innocent until proven guilty."
Our client was a company in the food business. At trial, one of the
essential company witnesses, a nice woman who worked in the bakery/deli,
was very shy and nervous and I wanted to get her on and off the stand as
quickly as possible. After a minimal cross-examination by plaintiff's
counsel, I jumped up and declared the witness was free to go. Detecting
my anxiety, the judge said "Not so fast, the Court has some questions."
My heart sank. The judge turned to the witness and said, "Are you the
woman who makes those fried chicken livers on Saturdays? I go up there
every weekend and spend all my money there." When the woman left the
courtroom and went out where the other witnesses were waiting, she
exclaimed, "He asked me about my chicken livers!"
In the same trial I tried to question another witness, who was a licensed
attorney working in-house for the company, about what he heard the
plaintiff say at the earlier hearing on her claim for unemployment
benefits. We expected some arguments about the admissibility of this
evidence, but no one mentioned the statute I had in mind. Instead, the
lawyer on the other side objected on the inscrutable grounds that the
witness "was going to testify about something he heard while he was a
lawyer." Before I could say anything in response, the judge ruled, even
more inscrutably, "Objection sustained, the witness can answer." I told
the judge I didn't understand his ruling. He pointed back to the table
where our local counsel was still seated and said, "go back over there
and find out." I thought he meant I could get the answer from local
counsel, who of course had no idea what the judge meant. As it turns out,
the judge meant for me to ask more questions, that the witness could say
what he heard but that the unemployment hearing transcript (which we had
not yet tried to introduce, but the witness held in his hands) would not
be allowed into the case as an exhibit.
Eventually, the judge grew tired of our evidence. The claim was about
hostile environment sexual harassment. After several of the plaintiff's
co-workers recounted incidents in which she was the one telling detailed
and unusual stories in the workplace about sexual matters, the judge
called me to the bench and let me know that no more such evidence would
be allowed. "This is a court of law," the judge said, "and we're not
going to have any more of that kind of talk in here."
When the jury retired, immediately upon the closing of the door to the
jury room, all of them laughed together so loudly we could hear them as
we were packing up in the courtroom. Some minutes later, the jury brought
back a the defense verdict, so we can laugh when these stories are
retold. As the day was fine, the local lawyer and I retired to the golf
course, and got in about 15 holes before dark, then I left to drive back
to Virginia.
Bank officer claims he was fired for whistleblowing at federal administrative hearing
The Roanoke Times has this article on the claims of the former CFO of a bank in Floyd County that he was fired for refusing to go along with financial irregularities. The former employee is represented by Kingsport attorney Bruce Shine, while Doug Densmore from Roanoke represents the bank.
Sending a lawyer back to school for being bad
Law.com has this interesting story of the lawyer who was sanctioned for trying to revive time-barred state law claims in the guise of federal RICO and civil rights claims (what a concept) and the sanction was court-ordered classes on federal civil procedure, professionalism, and legal ethics.
Monday, August 25, 2003
DBS providers sue over sales tax in Tennessee
As reported here in the Kingsport paper, direct broadcast satellite providers Echostar and DirecTV have filed suit claiming the sales tax on satellite service is discriminatory: "In the lawsuit, the satellite dish providers maintain the sales tax is not imposed equally on local cable television customers, even though satellite television companies compete with incumbent cable operators in the same market." The suit was filed last week in Davidson County.
Changes to Virginia Rules of Court
Amendments to the Rules of Court taking effect in October include changes to Rules 1:7, 1:12, 1:13, 4:7 and 4:9, as shown here.
Particularly noteworthy is the new Rule 1:12, which says regarding service by e-mail:
All pleadings, motions and other papers not required to be served otherwise and requests for subpoenas duces tecum shall be served by delivering, dispatching by commercial delivery service, transmitting by facsimile, delivering by electronic mail when consented to in writing signed by the person to be served, or mailing, a copy to each counsel of record on or before the day of filing.
Service pursuant to this Rule shall be effective upon such delivery, dispatch, transmission or mailing, except that papers served by facsimile transmission completed after 5:00 p.m. shall be deemed served on the next day that is not a Saturday, Sunday, or legal holiday. Service by electronic mail under this
Rule is not effective if the party making service learns that the attempted service did not reach the person to be served.
At the foot of such pleadings and requests shall be appended either acceptance of service or a certificate of counsel that copies were served as this Rule requires, showing the date of delivery and method of service, dispatching, transmitting, or
mailing. When service is made by electronic mail, a certificate of counsel that the document was served by electronic mail shall be served by mail or transmitted by facsimile to each counsel of record on or before the day of service.
Particularly noteworthy is the new Rule 1:12, which says regarding service by e-mail:
All pleadings, motions and other papers not required to be served otherwise and requests for subpoenas duces tecum shall be served by delivering, dispatching by commercial delivery service, transmitting by facsimile, delivering by electronic mail when consented to in writing signed by the person to be served, or mailing, a copy to each counsel of record on or before the day of filing.
Service pursuant to this Rule shall be effective upon such delivery, dispatch, transmission or mailing, except that papers served by facsimile transmission completed after 5:00 p.m. shall be deemed served on the next day that is not a Saturday, Sunday, or legal holiday. Service by electronic mail under this
Rule is not effective if the party making service learns that the attempted service did not reach the person to be served.
At the foot of such pleadings and requests shall be appended either acceptance of service or a certificate of counsel that copies were served as this Rule requires, showing the date of delivery and method of service, dispatching, transmitting, or
mailing. When service is made by electronic mail, a certificate of counsel that the document was served by electronic mail shall be served by mail or transmitted by facsimile to each counsel of record on or before the day of service.
New marketing website for Southwest Virginia
Earlier this month, the Virginia Coalfield Economic Development Authority announced the kick-off of its new Southwest Virginia Promise website, which has the facts to convince businesses that Southwest Virginia is a great place to be.
One employer linked to that site whose product interests me the most is the Tempur-Pedic outfit from over at Duffield.
One employer linked to that site whose product interests me the most is the Tempur-Pedic outfit from over at Duffield.
Navy keeps dinner blessing despite 4th Circuit ruling
According to this report, the U.S. Naval Academy will continue to have a blessing before dinner, notwithstanding the court rulings in the VMI case, which are now being appealed to the Supreme Court of the United States.
Sunday, August 24, 2003
Virginia budget gap of $1 billion foreseen for 2005-06
According to this AP report, Governor Warner will tell the legislature yet again that there is still not enough revenue to meet the Commonwealth's spending obligations without cutbacks or revenue increases.
Should Republicans nominate a Northern Virginian for statewide office in 2005?
The Washington Post had this article last week, in which some Northern Virginia Republicans were urging that one of their own should be the party's nominee for lieutenant governor in 2005.
The article explains:
"They may be too late. Although it will be two years before the major parties decide their '05 tickets, state Sen. Bill Bolling (R) of the Richmond area has already lined up the support of many grass-roots activists with a staunchly conservative message of no new taxes and restrained government spending.
Bolling has also built alliances with other lawmakers by donating to their campaigns through his Virginia Conservative Action political action committee.
A lot can happen between now and nominating season, and Bolling has no lock on the No. 2 spot. But he would be formidable, especially if Attorney General Jerry W. Kilgore (R), a gubernatorial contender, and other party leaders opt for a nominating convention rather than a primary election. A convention would play to the organizational strength of the Republican right wing; a primary would automatically give a boost to a candidate from a vote-rich region such as Northern Virginia.
The leading proponent of getting a Washington suburbanite on the '05 ticket is Rep. Thomas M. Davis III (R-District 11), who has his eye on an eventual U.S. Senate run and increasingly is using his standing as a regional and national player to influence downstate affairs.
Republican sources said that on at least two occasions, Davis has suggested strongly to Kilgore that he take care to include a Northern Virginian on the ticket. (A Republican state delegate from Virginia Beach and a Richmond lawyer are battling for the attorney general nomination, leaving the lieutenant governor position basically the only one available to someone.)
Davis's logic is selfish and strategic. Selfish, because he doesn't entirely trust Richmond to look out for the interests of Virginia's economic engine -- one that is also plagued by monstrous traffic congestion, huge social service demands and an educational infrastructure badly in need of major repairs."
The article explains:
"They may be too late. Although it will be two years before the major parties decide their '05 tickets, state Sen. Bill Bolling (R) of the Richmond area has already lined up the support of many grass-roots activists with a staunchly conservative message of no new taxes and restrained government spending.
Bolling has also built alliances with other lawmakers by donating to their campaigns through his Virginia Conservative Action political action committee.
A lot can happen between now and nominating season, and Bolling has no lock on the No. 2 spot. But he would be formidable, especially if Attorney General Jerry W. Kilgore (R), a gubernatorial contender, and other party leaders opt for a nominating convention rather than a primary election. A convention would play to the organizational strength of the Republican right wing; a primary would automatically give a boost to a candidate from a vote-rich region such as Northern Virginia.
The leading proponent of getting a Washington suburbanite on the '05 ticket is Rep. Thomas M. Davis III (R-District 11), who has his eye on an eventual U.S. Senate run and increasingly is using his standing as a regional and national player to influence downstate affairs.
Republican sources said that on at least two occasions, Davis has suggested strongly to Kilgore that he take care to include a Northern Virginian on the ticket. (A Republican state delegate from Virginia Beach and a Richmond lawyer are battling for the attorney general nomination, leaving the lieutenant governor position basically the only one available to someone.)
Davis's logic is selfish and strategic. Selfish, because he doesn't entirely trust Richmond to look out for the interests of Virginia's economic engine -- one that is also plagued by monstrous traffic congestion, huge social service demands and an educational infrastructure badly in need of major repairs."
Judge Moon orders disclosure to wrongfully-convicted man
Last week, Judge Moon of the W.D. Va. ordered the Virginia State Police to disclosure to Earl Washington the name of the convicted rapist whose DNA was found at the scene of the crime for which Washington was jailed for years before he was pardoned based on the DNA evidence, as reported here in the Washington Post.
At least it's not a Wal-Mart
The prospect of a Hooters restaurant in Williamsburg has some in county government looking for a way to stop them, according to this story in the Williamsburg Gazette, while others say the county is powerless to discriminate against Hooters so long as the proposed use of the property is within existing zoning.
Odd connection between candidates for Republican chairmanship
I knew that that the father of Kate Obenshain Griffin died in a plane crash, but what I didn't know was that the father of Richard Neel, Griffin's opponent for the post of party chairman, was one of the pilots, until I read this column.
One Canadian's view of Thomas Jefferson
It says here, more or less, that Thomas Jefferson was just plain no good, and that columnist George Will is no good, and much of the Bush administration is no good, and the French revolution was no good, and the American electoral system is no good, and the CIA . . . .
I'm guessing this writer did not attend the University.
I'm guessing this writer did not attend the University.
How can the online calendar be wrong on a guilty plea
The Roanoke Times has this story on confusion following the appearance in the online calendar of a notation that one of the co-defendants of Dr. Cecil Knox was going to plead guilty, when in fact she wasn't.
Well, this doesn't sound like much of a story to me. The few times I've seen something related to one of my federal cases on the calendar or the docket that did not make sense to me, I've called the clerk's office, and either they explained it to me or they changed it, if necessary after consulting with the judge, or so I understand. There's nothing sinister about such things. The constant dance of scheduling is one of the most inefficient things that goes on in litigation, the opportunities for someone to make a misstep are many.
Well, this doesn't sound like much of a story to me. The few times I've seen something related to one of my federal cases on the calendar or the docket that did not make sense to me, I've called the clerk's office, and either they explained it to me or they changed it, if necessary after consulting with the judge, or so I understand. There's nothing sinister about such things. The constant dance of scheduling is one of the most inefficient things that goes on in litigation, the opportunities for someone to make a misstep are many.
The role of magistrates in Virginia's criminal justice system
The Winchester paper has this detailed article on the role of Virginia's magistrates, who are often not lawyers (but increasingly less so) and work all hours, mostly at the jails, deciding whether to grant warrant applications and setting bail bonds.
Son of WV Congressman sought in Virginia, out on bond in WV
As reported here, the son of WV Congressman Rahal is allowed to stay at home in connection with arrest on a fugitive warrant from Virginia.
It seems to me I once examined the issue of whether the circuit court could set a bond for a fellow who was to be extradited to one of the New England states, and for better or worse either I lost on the issue or gave it up. My recollection is that the man got into some trouble in Bristol and while in jail the authorities figured out there were these old outstanding warrants on him from this other state. It took almost as long for the other state to decide whether they wanted him as it did for the guy to get back to Bristol after he was taken up there. (My advocacy did not prevent his extradition.)
It seems to me I once examined the issue of whether the circuit court could set a bond for a fellow who was to be extradited to one of the New England states, and for better or worse either I lost on the issue or gave it up. My recollection is that the man got into some trouble in Bristol and while in jail the authorities figured out there were these old outstanding warrants on him from this other state. It took almost as long for the other state to decide whether they wanted him as it did for the guy to get back to Bristol after he was taken up there. (My advocacy did not prevent his extradition.)
Virginia Democrats vow to get in the faces of Virginia Republicans
This AP report by Bob Lewis says that the leaders of Virginia's Democrats are declaring their determination to get in the faces of Republicans particularly on the issue of education funding. The article notes that Governor Warner "enters his third General Assembly session still looking for a major legislative policy victory as a legacy for the single four-year term he is allowed by state law."
Studies show taxes are lower in Virginia for the rich and for the poor
According to this report in the Washington Post, "despite its image of operating on a soak-the-poor tax policy, several studies have found that the total tax burdens of Virginians -- state and local -- are at most income levels just plain lower than those of D.C. and Maryland residents."
Oliver Hill and others recall the March on Washington
Richmond lawyer Oliver Hill, now 96, and others from Richmond recall the March on Washington in August, 1963, in this story from the Richmond Times-Dispatch.
Why the NCAA report has not much to do with Virginia
Sports columnist David Teel from the Daily Press explains here why the NCAA's conclusion that big-time sports does not do much for America's universities is particularly skewed with regard to, say, U.Va. and Virginia Tech, which get no (direct) money from the Commonwealth.
Saturday, August 23, 2003
Right to private goofiness vs. universal appeal of chunky kid with light saber
Mitch Mobley forwarded to me this story about a chunky kid in Quebec who videotaped himself wielding (with ever increasing energy and enthusiasm) a golf-ball retriever as if it were a light saber in one of the Star Wars movies, and after someone else found the video and put it on the Internet, and it became popular (with websites such as this one), the kid is now suing over his lost privacy.
A fan of the video had this comment:
"Contrary to popular belief, I think it is not the Jedi kid's awkwardness that keeps him in people's hearts but his undeniable enthusiasm for what he is doing," Murphy says. "While I feel bad for him because he hates his new found popularity, I revisit the site anytime I am feeling down. It just cracks me up. I love this kid!"
Said another:
"I definitely want to respect the kid's privacy. But...," he says, starting to laugh, "It's so funny. He's the 'Star Wars Kid' in all of us."
A fan of the video had this comment:
"Contrary to popular belief, I think it is not the Jedi kid's awkwardness that keeps him in people's hearts but his undeniable enthusiasm for what he is doing," Murphy says. "While I feel bad for him because he hates his new found popularity, I revisit the site anytime I am feeling down. It just cracks me up. I love this kid!"
Said another:
"I definitely want to respect the kid's privacy. But...," he says, starting to laugh, "It's so funny. He's the 'Star Wars Kid' in all of us."
Friday, August 22, 2003
On whether a town's Architectural Review Board can regulate building materials
In Abingdon, we have an architectural review board for development in the historic area. It has become an increasing controversial government agency, particularly with regard to the development of the Barter green property. The ARB proceedings seem to have been something of a success in terms of good government, since they had the courage to say no at least initially to the Barter Foundation, causing the Foundation to compromise on the initial excesses of its proposals. (My wife laughs when I start shouting and cursing at the newspaper over the grandiose pronouncements of the Barter's director Richard Rose, which often put me into a rage when I read them, and then she laughs at me even more when I smile and say hi to Mr. Rose when we see him on our way into the theater -- but I digress.)
This article talks about the ARB in the Town of Warrenton (which has a very nice Old Town area), and the limits of its authority - particularly, whether the ARB can regulate what building materials are used.
This article talks about the ARB in the Town of Warrenton (which has a very nice Old Town area), and the limits of its authority - particularly, whether the ARB can regulate what building materials are used.
What's the point of broadband for the coalfields
On a past theme of my own legal writings, this article in the Coalfield Progresss addresses why the investment of Tobacco Commission money for broadband connections in the Southwest Virginia coalfields is a good idea.
On the harvesting of marijuana in Southwest Virginia
Roanoke.com has this commentary on the harvest season for marijuana in Southwest Virginia.
Sorry not much blogging this week.
Yesterday's strangest development was my first-ever chance to demonstrate to a client my ability to change a tire while wearing a business suit, after we suffered a flat in my car driving back from depositions in Knoxville. (The temperature alongside the interstate was in the 90s, made more comfortable by the intermittent blasts of air caused by the passing trucks.) After depositions, driving, and tire changing, I went home and took a nap.
Yesterday's strangest development was my first-ever chance to demonstrate to a client my ability to change a tire while wearing a business suit, after we suffered a flat in my car driving back from depositions in Knoxville. (The temperature alongside the interstate was in the 90s, made more comfortable by the intermittent blasts of air caused by the passing trucks.) After depositions, driving, and tire changing, I went home and took a nap.
Wednesday, August 20, 2003
On the Fourth Circuit's newspaper antitrust case
On Monday, in Berlyn Inc. v. The Gazette Newspapers, Inc., the Fourth Circuit in an unpublished opinion by Judge Gregory joined by Chief Judge Wilkins and Judge Shedd affirmed the dismissal of antitrust claims brought by local newspapers in Maryland against a subsidiary of the Washington Post.
The Gazette reported on its own victory here.
The Gazette reported on its own victory here.
HOV lanes and hybrid cars
As reported here, the Commonwealth is considering revoking an exemption for gas-electric hybrid cars from the occupancy requirements of HOV lanes.
There are no HOV lanes in Southwest Virginia. The first time I ever saw HOV lanes, around Springfield in 1987 or so, I passed everybody for a while, then decided something had to be wrong. It's a wonder no one shot me, as a blatant and undeserving HOV-lane offender.
There are no HOV lanes in Southwest Virginia. The first time I ever saw HOV lanes, around Springfield in 1987 or so, I passed everybody for a while, then decided something had to be wrong. It's a wonder no one shot me, as a blatant and undeserving HOV-lane offender.
ethicalEsq? picks up on Wise County story
Photo on county guide depicts area not in county
As reported here in the Roanoke Times, the photograph gracing the cover of the sourcebook for Montgomery County is property that is not part of the County, at least not since 1892.
Tuesday, August 19, 2003
Michael Vick on Tech in the ACC
From a PCMag interview with Michael Vick:
DSE: What do you think about Virginia Tech's move to the ACC?
MV: I think it's a good move, I think it's a conference where we can dominate.
DSE: What do you think about Virginia Tech's move to the ACC?
MV: I think it's a good move, I think it's a conference where we can dominate.
Waiver of attorney-client privilege found when client tells FBI he acted on advice of counsel
In U.S. v. Under Seal, the Fourth Circuit in an opinion by Chief Judge Wilkins joined by Judges Williams and Traxler held that a terrorism suspect waived attorney-client privilege when he told the FBI that the reason for one of his answers on a questionnaire about his criminal history was that he was acting on advice of counsel, and therefore the lawyer could be made to answer limited questions to the grand jury investigating whether the client lied to the FBI.
Judge Jones upholds million dollar verdict in Roanoke auto accident case
In Shelton v. Barreto, Judge Jones refused to throw out the jury's verdict or order a remittitur in a case where the jury in the Roanoke division of the W.D. Va. awarded more than $1 million. The claimed special damages in the case were $143,433.22.
Matthew Broughton among others represented the plaintiff.
Years ago, I heard someone say as a rule of thumb that you were not a good trial lawyer until you had lost a million dollar case, and I repeated to this story to a lawyer who had suffered such a verdict, then told it again to a lawyer I knew in Kentucky, whose reply was "you tell your friend in Virginia by that measure I'm twice as good a lawyer as he is."
Matthew Broughton among others represented the plaintiff.
Years ago, I heard someone say as a rule of thumb that you were not a good trial lawyer until you had lost a million dollar case, and I repeated to this story to a lawyer who had suffered such a verdict, then told it again to a lawyer I knew in Kentucky, whose reply was "you tell your friend in Virginia by that measure I'm twice as good a lawyer as he is."
Congressman Goodlatte and immigrant labor
This article talks about what Congressman Bob Goodlatte is doing on issues affecting the immigrant workforce in agriculture.
Amnesty International and the war on terrorism
This article by Amnesty International includes that group's take on, among other things, the Fourth Circuit's decision in the Hamdi case.
Interviewing the underaged, mentally-disabled victim at the accused's house
The Coalfield Progress has this story on obstruction of justice charges brought against two Wise County women for organizing a meeting between an alleged rape victim and the counsel for the defendant, who was married to one of the two women.
Today's tax tales
The Washington Post has this negative report and the Roanoke Times has this somewhat more optimistic report on the legislative tax reform efforts yesterday.
Fifth Circuit and the death penalty
The NY Times has this article (registration required) criticizing the Fifth Circuit's handling of death penalty cases from Texas.
The article says, in part:
"Opponents of the death penalty say the imminent execution of Mr. Robertson is a demonstration that the federal appeals court that heard his case, in New Orleans, has not followed the law set out in Supreme Court decisions. They add that the court, which has the heaviest capital docket of all of the federal courts of appeals, is prone to deciding cases in short opinions without hearing oral arguments."
The article says, in part:
"Opponents of the death penalty say the imminent execution of Mr. Robertson is a demonstration that the federal appeals court that heard his case, in New Orleans, has not followed the law set out in Supreme Court decisions. They add that the court, which has the heaviest capital docket of all of the federal courts of appeals, is prone to deciding cases in short opinions without hearing oral arguments."
Roanoke jury awards $1.3 M in med mal case
The Roanoke Times has this report on the jury's verdict in a case against an obstetrician/gynecologist for an unsuccessful laparascopic procedure that nearly killed the patient.
Monday, August 18, 2003
Finding the VCOG newsletter
I just found the July newsletter for the Virginia Coalition for Open Government, which has been hidden on my desk since, well, July, I suppose. The newsletter is always interesting and never dull, written almost in the breathless style of the horse racing commentator played by William H. Macy in Seabiscuit.
Anti-gridlock conservatives
According to this commentary in the Virginian-Pilot, some Republican businessmen in Virginia are more concerned about infrastructure than they are with purity on the no new tax issue.
Second appeal decided on subject-matter jurisdiction
In M.E. v. Buncombe County Bd. of Educ., the Fourth Circuit in a per curiam opinion for the panel of Judges Widener, Williams, and Motz vacated the district court's decision following a prior appeal for lack of subject-matter jurisdiction, which makes me wonder where was that issue before the first appeal, but I guess subject-matter jurisdiction can never be waived or manufactured by the conduct of the parties.
Why not do federal criminal practice
Ken at Crim Law makes federal criminal practice sound pretty horrible, particularly in his description of the "federal defense game" in this post.
I'm ashamed to say that I have avoided federal criminal practice thus far in my career, for no particular reason other than that the federal judges apparently can't or won't appoint me to defend indigents without my consent (as sometimes happens in state court) and it would take too much work for me to avoid looking foolish in criminal cases (as has happened in state court, most recently a pro bono case over on the Tennessee side).
The closest that I ever came to getting involved in a federal criminal case was one day when I was in the hallway at the federal court in Abingdon as Judge Wilson was walking the opposite direction talking to someone about how he needed to find more lawyers for some case that very afternoon, and as I passed him, he said something like, "Steve, how would you like to be on the court-appointed list for this court? I can appoint you to a case right now." I don't remember whether I made some reply or whether I just jumped out the nearest window.
I'm ashamed to say that I have avoided federal criminal practice thus far in my career, for no particular reason other than that the federal judges apparently can't or won't appoint me to defend indigents without my consent (as sometimes happens in state court) and it would take too much work for me to avoid looking foolish in criminal cases (as has happened in state court, most recently a pro bono case over on the Tennessee side).
The closest that I ever came to getting involved in a federal criminal case was one day when I was in the hallway at the federal court in Abingdon as Judge Wilson was walking the opposite direction talking to someone about how he needed to find more lawyers for some case that very afternoon, and as I passed him, he said something like, "Steve, how would you like to be on the court-appointed list for this court? I can appoint you to a case right now." I don't remember whether I made some reply or whether I just jumped out the nearest window.
Circuit judge blasted for routinely reducing DUI convictions on appeal
A judge in Portsmouth is being criticized for his routine reduction of DUI sentences on cases appealed from General District Court, according to this report and this report.
More on sodomy prosecutions in Virginia
Some "experts" seem to be dumbfounded that anyone can still be prosecuted for sodomy in Virginia after the Supreme Court's decision in the Lawrence case, according to this AP story about arrests made at a Harrisonburg book store.
I don't expect that the General Assembly will act to change the language of the Virginia Code unless and until someone with actual standing to have it declared unconstitutional convinces some court to do so, and then the legislature will act to limit the court's decision as best they can.
I recall that the Virginia Supreme Court's ideas about standing in the Richmond public housing trespass case were shot down 9-0 by the U.S. Supreme Court in the Hicks case last year. The overbreadth of the statute did not apply to Hicks because he was not engaging in any First Amendment activity. It would seem wrong to throw out a criminal statute because of a possible constitutional defect that does not apply to the defendant raising the issue.
I don't expect that the General Assembly will act to change the language of the Virginia Code unless and until someone with actual standing to have it declared unconstitutional convinces some court to do so, and then the legislature will act to limit the court's decision as best they can.
I recall that the Virginia Supreme Court's ideas about standing in the Richmond public housing trespass case were shot down 9-0 by the U.S. Supreme Court in the Hicks case last year. The overbreadth of the statute did not apply to Hicks because he was not engaging in any First Amendment activity. It would seem wrong to throw out a criminal statute because of a possible constitutional defect that does not apply to the defendant raising the issue.
New fax rules rile businesses
This article in the Lynchburg paper discusses the new FCC rules for unsolicited business faxes.
I don't know what the deal is with these new rules, right now I keep getting faxes asking for permission to send me faxes.
I don't know what the deal is with these new rules, right now I keep getting faxes asking for permission to send me faxes.
Why go to law school
This Washington Times article has some answers on why new students are going to law school, many with motives other than money (or so they say).
Federal death penalty sought in Charlottesville drug murder case
This Daily Progress story describes the decision by federal prosecutors to seek the death penalty in the case of three men "accused of killing a Charlottesville man over drugs last summer."
Whenever I read about a federal death penalty case, the first question that enters my mind is, why is this a federal case?
Also, the article says the prosecutor is Tim Heaphy. If that's the Tim Heaphy I knew a little bit at U.Va. in the 1980s, I wonder whether he is personally in favor of the death penalty. I would have guessed that he is more a rehabilitation and reconciliation man, but then again, that was a long time ago.
Whenever I read about a federal death penalty case, the first question that enters my mind is, why is this a federal case?
Also, the article says the prosecutor is Tim Heaphy. If that's the Tim Heaphy I knew a little bit at U.Va. in the 1980s, I wonder whether he is personally in favor of the death penalty. I would have guessed that he is more a rehabilitation and reconciliation man, but then again, that was a long time ago.
On the office of solicitor general for a state government
Law.com's Tony Mauro has this article on the rise of the office of solicitor general for states as one way for lawyers to get before the U.S. Supreme Court - but the article does not mention Virginia's William Hurd.
I saw Tony Mauro talking on C-SPAN to a gathering of former U.S. Solicitor Generals replayed on C-SPAN over the weekend, from this year's ABA convention - the panelists were Charles Fried, Drew Day, Ted Olsen, Ken Starr, and Walter Dellinger. (Forgive me, if their names are misspelled.) The funniest part, though, was at the end, when the ABA litigation section head thanked everyone and explained that it was a historic gathering, to have so many of the holders of this office together at once, and how the other living former solicitors general were unable to attend, Robert Bork and Archibald Cox, and described the letter from Mr. Cox, who supposedly wrote something like, "I was excited to appear on this panel, but then I realized, I'm 90 years old, and so I have to stay home."
I saw Tony Mauro talking on C-SPAN to a gathering of former U.S. Solicitor Generals replayed on C-SPAN over the weekend, from this year's ABA convention - the panelists were Charles Fried, Drew Day, Ted Olsen, Ken Starr, and Walter Dellinger. (Forgive me, if their names are misspelled.) The funniest part, though, was at the end, when the ABA litigation section head thanked everyone and explained that it was a historic gathering, to have so many of the holders of this office together at once, and how the other living former solicitors general were unable to attend, Robert Bork and Archibald Cox, and described the letter from Mr. Cox, who supposedly wrote something like, "I was excited to appear on this panel, but then I realized, I'm 90 years old, and so I have to stay home."
Why not to have elected judges
The recent articles in the NY Times about state court judges, including this one (registration required), make me think that Virginia has the right away in not picking judges by popular election. The article says, among other things, that "[i]n New York, where State [trial court] judges are elected rather than appointed, the dominant political party in a county can virtually dictate who goes on the bench, and further, who fills hundreds of courthouse jobs. Not surprisingly, those in the courthouses and those hoping to become judges make sure to donate to the party, interviews and campaign finance records show."
Of course, it is no less possible that in Virginia, political activism and campaign contributions to decisionmakers can and sometimes does make a difference in who gets the judgeship, but the outcomes don't seem to based on party standing alone.
Of course, it is no less possible that in Virginia, political activism and campaign contributions to decisionmakers can and sometimes does make a difference in who gets the judgeship, but the outcomes don't seem to based on party standing alone.
Wireless interference with emergency radios?
This story in the Washington Post about problems with emergency frequencies strikes me as suspicious, as it is either about empowering the FCC or giving private industry more spectrum or spending more local government money, or all three. The odd part is that it says that Montgomery County, MD, "took care to ensure there wouldn't be any interference problems" with its new system, and has no problems, so why isn't the question what's wrong with the other government systems?
California chaos a respite from dull Virginia politics?
This commentary in the Daily Press suggests that Virginians bore with the politics here can get their entertainment watching goings-on in California.
As I understand it, the big deal with Gray Davis was that he got re-elected then told everyone there was no money. In Virginia, since the governor cannot run for re-election, it is possible for the incumbent governor to minimize the bad facts about the budget to help elect a successor from his own party, who then can say he's not to blame for how bad things are. (Or so I've been told is what happened in 1989.)
As I understand it, the big deal with Gray Davis was that he got re-elected then told everyone there was no money. In Virginia, since the governor cannot run for re-election, it is possible for the incumbent governor to minimize the bad facts about the budget to help elect a successor from his own party, who then can say he's not to blame for how bad things are. (Or so I've been told is what happened in 1989.)
New magistrate judge in Knoxville
Within this page is a short account on the swearing-in of Knoxville attorney Bruce Guyton, a Knoxville native and U.Va. law graduate, as the new magistrate judge for the E.D. Tenn., following the promotion of Judge Thomas Phillips to the district court bench.
Local school boards try to keep up with changing gun laws
The General Assembly tinkers with gun laws every year, leaving school boards to figure out how to bring their policies into compliance with the new laws affecting guns on school property that took effect on July 1, as reported here.
AG Kilgore "returns to the fields"
It says here that Virginia Attorney General and gubernatorial candidate Jerry Kilgore was "was raised on a tobacco and cattle farm in Southwest Virginia" and "returned to the fields" last week to help other Republicans in rural Virginia.
On the swearing-in of new Fourth Circuit Judge Allyson Duncan
This report describes the swearing-in last Friday of Judge Allyson Duncan of the U.S. Court of Appeals for the Fourth Circuit. The oath was administered by her husband, William Webb, a U.S. magistrate judge.
More on prison doctor who lost job over stun gun case
The Roanoke Times has this additional report on the prison doctor who lost his job after blaming guards for the stun gun death of an inmate at Wallens Ridge in Wise County.
Friday, August 15, 2003
47 Virginia schools don't pass muster under federal guidelines
According to this report, 47 Virginia schools under the federal guidelines for recipients of Title I federal money.
Doctor who blamed guards for inmate death gets fired
Judge Flannagan accepts controversial plea deal in child pornography case
The Bristol paper has this report on the acceptance by Circuit Court Judge Charles B. Flannagan II of the plea agreement in a Washington County child pornography case.
What makes the case interesting if not bizarre is that the No. 2 man in the Attorney General's office has publicly declared that the punishment under the plea deal is inadequate and the case should have been handled by federal prosecutors.
The incumbent Commonwealth's Attorney in Washington County was elected as a Democrat but is not seeking re-election. The AG's man, Joseph Carrico, was previously elected Commonwealth's Attorney in Wise County as a Republican. I would have thought, however, that the Commonwealth's attorneys and the Attorney General's office were supposed to be mostly on the same team, at least in public.
What makes the case interesting if not bizarre is that the No. 2 man in the Attorney General's office has publicly declared that the punishment under the plea deal is inadequate and the case should have been handled by federal prosecutors.
The incumbent Commonwealth's Attorney in Washington County was elected as a Democrat but is not seeking re-election. The AG's man, Joseph Carrico, was previously elected Commonwealth's Attorney in Wise County as a Republican. I would have thought, however, that the Commonwealth's attorneys and the Attorney General's office were supposed to be mostly on the same team, at least in public.
Blaster worm gets Tazewell school system
The Bluefield paper reports here that the computer systems of the Tazewell County, VA school systems were among the victims of the Blaster worm.
In this office, myself and a staffer are sort of amateur computer hobbyists, we find out sporadically about which MS updates are good and which are bad through such resources as Woody's (which I recommend completely), and when we get worried about something, we call our computer guys, who usually tell us to do whatever we have already decided to do, and we do it. So, last week we did the update to avoid Blaster. (This system does not strike me as exactly fool-proof.) Also, the two of us rule on all the virus hoaxes that someone in the firm hears about from somebody.
The message we sent around on Blaster was this:
---------------------
Donna and I have decided it is necessary for every machine to install a Windows patch - the one that is touted by the Dept. of Homeland Security.
The story below (which I just received) is part of the reason why -
Worms shut down thousands of Windows PCs
By Brian Livingston
I reported in the last issue of Brian's Buzz on the "port 135" security hole that Microsoft recently described as critical. This flaw affects not only Windows XP, 2000, and NT 4.0, but also the much-hyped new Windows Server 2003. Microsoft has released a patch, but most people haven't installed it yet. Well, time's running out - worms that exploit the flaw started making attempts to hit every PC on the Internet just a couple of weeks after the vulnerability became publicly known.
As I write this, Stanford University has reported that 2,400 of its roughly 20,000 campus PCs were infected in a matter of days by worms that took advantage of this hole. Malicious "Trojan" code that was deposited onto the machines' disks may take weeks to clean out of the systems, said Cedric Bennett, Stanford's director of information security services in a statement.
Even worse, the University of California at Berkeley announced that, due to the same attacks, it was being forced to shut down all access from outside the campus to its Windows-based file sharing and Exchange servers for a period of four days.
If you haven't yet secured your own systems against this hole, jump to my July 24 issue and read about the steps you need to take. To send me more information about this, or to send me a tip on any other subject, visit BriansBuzz.com/w/contact.
In this office, myself and a staffer are sort of amateur computer hobbyists, we find out sporadically about which MS updates are good and which are bad through such resources as Woody's (which I recommend completely), and when we get worried about something, we call our computer guys, who usually tell us to do whatever we have already decided to do, and we do it. So, last week we did the update to avoid Blaster. (This system does not strike me as exactly fool-proof.) Also, the two of us rule on all the virus hoaxes that someone in the firm hears about from somebody.
The message we sent around on Blaster was this:
---------------------
Donna and I have decided it is necessary for every machine to install a Windows patch - the one that is touted by the Dept. of Homeland Security.
The story below (which I just received) is part of the reason why -
Worms shut down thousands of Windows PCs
By Brian Livingston
I reported in the last issue of Brian's Buzz on the "port 135" security hole that Microsoft recently described as critical. This flaw affects not only Windows XP, 2000, and NT 4.0, but also the much-hyped new Windows Server 2003. Microsoft has released a patch, but most people haven't installed it yet. Well, time's running out - worms that exploit the flaw started making attempts to hit every PC on the Internet just a couple of weeks after the vulnerability became publicly known.
As I write this, Stanford University has reported that 2,400 of its roughly 20,000 campus PCs were infected in a matter of days by worms that took advantage of this hole. Malicious "Trojan" code that was deposited onto the machines' disks may take weeks to clean out of the systems, said Cedric Bennett, Stanford's director of information security services in a statement.
Even worse, the University of California at Berkeley announced that, due to the same attacks, it was being forced to shut down all access from outside the campus to its Windows-based file sharing and Exchange servers for a period of four days.
If you haven't yet secured your own systems against this hole, jump to my July 24 issue and read about the steps you need to take. To send me more information about this, or to send me a tip on any other subject, visit BriansBuzz.com/w/contact.
Lynchburg judge defers on recusal issue in cases where local lawyers may be witnesses
This story from the Lynchburg paper says that the circuit court judge was unprepared to determine that he and his peers from the 24th circuit were automatically disqualified from hearing the evidence in a case where one side claimed that two lawyers were likely to be witnesses. The opposing counsel in the case were identified as Wyatt Durrette and Bill Poff, which sounds like a clash of titans to me.
Construction contract claims against county fail as untimely
This article describes a circuit court ruling against a contractor on its claims related to the construction of a county water plant in Spotsylvania County.
Organized labor to focus campaign money on Southwest Virginia
"Virginia AFL-CIO President Daniel LeBlanc, who presented $10,000 checks Thursday to the Virginia Democratic Party and the Virginia Democratic Senate Caucus, said the labor movement will focus on races where it can have the most impact, including the coal-mining region of southwest Virginia," according to this news story from Channel 4 in D.C.
Thursday, August 14, 2003
What are those notations on the federal district court docket from PACER?
Inter Alia links to this new legal reference blog which links to this LLRX.com article on what those notations mean on the U.S. district court docket sheets - like whether when you are COR, you want to be LD NTC.
The impossibility of remanding a case that was never removed
In Payne v. Merrill Lynch, the Fourth Circuit in a per curiam opinion for the panel of Judges Widener, Michael, and Gregory concluded that the trial court erred in "remanding" a case that was filed originally in federal court but had been consolidated with another case that was removed from state court.
Retiring Southwest Virginia judges
General District Court Judge Danny Bird from Wytheville is retiring, as reported here.
Also, the Bristol Bar has circulated a letter from Judge Charles B. Flannagan, II, indicating that he will retire as of February 1, 2004.
Also, the Bristol Bar has circulated a letter from Judge Charles B. Flannagan, II, indicating that he will retire as of February 1, 2004.
E.D. Va. judge allows class action in land use dispute over fiber-optic cable
Judge Payne of the E.D. Va. will allow plaintiffs to proceed in the form of a class action to seek relief against Dominion Resources on their claim that the power company ran its fiber-optic cable over their property without permission, as reported here in the Richmond paper.
More on the VMI prayer case
The Roanoke Times has this article and the Richmond Times-Dispatch has this article and the Washington Post this article on the denial of rehearing en banc by the Fourth Circuit in the VMI dinner prayer case.
Piping sewage straight into the creek in Wise County
Odd case filed against Lynchburg YMCA
As reported here, the Lynchburg YMCA has been sued on a theory that it was negligent in failing to provide adequate parking, and therefore it is responsible for the death of a woman run down in the street while en route to the YMCA.
Without any research, I don't see that there is any such duty (outside of maybe the zoning ordinance) and I don't see what the parking has to do with anything anyhow. Also, would the Y's charitable immunity extend to such a case? There are cases still where local YMCAs win on charitable immunity, but maybe that would not apply to matters of parking.
Without any research, I don't see that there is any such duty (outside of maybe the zoning ordinance) and I don't see what the parking has to do with anything anyhow. Also, would the Y's charitable immunity extend to such a case? There are cases still where local YMCAs win on charitable immunity, but maybe that would not apply to matters of parking.
Solicitation case brings challenge to Virginia's sodomy statute
As reported here in the Virginian-Pilot, a defendant in a Virginia Beach solicitation case is trying to claim that the Virginia sodomy statute is unconstitutional. The case law, including the last round of cases from Roanoke, says he has no standing to raise the issue. The constitutional right of privacy, whatever its limits, does not extend to the men's room at Sears.
Wednesday, August 13, 2003
Fourth Circuit denies rehearing en banc in VMI supper prayer case
Here is the order by which the Fourth Circuit denied rehearing in the VMI prayer case, by a vote of 6-6, with opinions dissenting from the denial of rehearing by Judges Widener, Wilkinson, and Niemeyer.
Perhaps the Commonwealth will take the case on to the Supreme Court, where Mr. Hurd has had some luck in his last couple of cases arguing for Virginia.
Perhaps the Commonwealth will take the case on to the Supreme Court, where Mr. Hurd has had some luck in his last couple of cases arguing for Virginia.
Obenshain daughter a contender for state GOP post
The Winchester paper has this article on Kate Obenshain Griffin, the daughter of Richard Obenshain who died in 1978 plane crash after being nominated for the U.S. Senate, and a leading contender to replace the fellow who just quit as the head of the state Republican party in Virginia.
Nice work if you can get it?
According to this report, the State of Nevada has given a Virginia law firm a contract for up to $4 million to fight the location of a nuclear waste dump in that state. The hourly rate for the lead partner in the matter is said to be $450 per hour. The firm is Egan, Fitzpatrick & Malsch based in McLean, and has this website, www.nuclearlawyer.com.
Landowners sue Virginia town challenging validity of historic district
As reported here, landowners in the Town of Washington (home of the Inn at Little Washington) in Rappahanock County are suing because the local historic district laws prohibit them from building a new house on their property.
The discovery requests, served with the complaint, include the following:
"In papers accompanying the lawsuit, the Worleys requested the issuance of subpoenas to Architectural Review Board member Susan Babcock, Town Council member Claudia Mitchell and the Inn at Little Washington seeking documents "relating" to the lawsuit.
Computers belonging to Babcock and Mitchell were also being sought "for inspection and analysis" and were to be delivered to the office of the Clerk of the Circuit Clerk, according to the subpoena request.
Babcock and Mitchell were also asked to provide documents relating to any visits to the Inn at Little Washington "as invitee, patron or guest" since July 26, 2002, the date when the Worleys first applied for approval for construction of their house.
The Inn at Little Washington was also asked to supply documents and receipts relating to any council members, ARB members or any other town official who has been "a customer, guest or patron" since July 26, 2002."
So, if you can beat them, really annoy them.
The discovery requests, served with the complaint, include the following:
"In papers accompanying the lawsuit, the Worleys requested the issuance of subpoenas to Architectural Review Board member Susan Babcock, Town Council member Claudia Mitchell and the Inn at Little Washington seeking documents "relating" to the lawsuit.
Computers belonging to Babcock and Mitchell were also being sought "for inspection and analysis" and were to be delivered to the office of the Clerk of the Circuit Clerk, according to the subpoena request.
Babcock and Mitchell were also asked to provide documents relating to any visits to the Inn at Little Washington "as invitee, patron or guest" since July 26, 2002, the date when the Worleys first applied for approval for construction of their house.
The Inn at Little Washington was also asked to supply documents and receipts relating to any council members, ARB members or any other town official who has been "a customer, guest or patron" since July 26, 2002."
So, if you can beat them, really annoy them.
Why John Kerry will never win in Philadelphia
This delightful article in the Washington Post explains why John Kerry hasn't a clue when it comes to ordering and eating a Philly cheese steak.
The article says in part:
"If Sen. John F. Kerry's presidential aspirations melt like a dollop of Cheez Whiz in the sun, the trouble may well be traced to an incident in South Philadelphia on Monday.
There, the Massachusetts Democrat went to Pat's Steaks and ordered a cheesesteak -- with Swiss cheese. If that weren't bad enough, the candidate asked photographers not to take his picture while he ate the sandwich; shutters clicked anyway, and Kerry was caught nibbling daintily at his sandwich -- another serious faux pas.
'It will doom his candidacy in Philadelphia,' predicted Craig LaBan, food critic for the Philadelphia Inquirer, which broke the Sandwich Scandal. After all, Philly cheesesteaks come with Cheez Whiz, or occasionally American or provolone. But Swiss cheese? 'In Philadelphia, that's an alternative lifestyle,' LaBan explained.
And don't even mention Kerry's dainty bites. 'Obviously, Kerry's a high-class candidate, and he misread the etiquette,' LaBan said. 'Throwing fistfuls of steak into the gaping maw, fingers dripping -- that's the proper way.'"
The last summer I lived in PA I ate steak sandwiches every night, but they are harder to find in Southwest Virginia - the best places are out toward S. Holston Lake on U.S 421, far from the office but worth the trip.
The article says in part:
"If Sen. John F. Kerry's presidential aspirations melt like a dollop of Cheez Whiz in the sun, the trouble may well be traced to an incident in South Philadelphia on Monday.
There, the Massachusetts Democrat went to Pat's Steaks and ordered a cheesesteak -- with Swiss cheese. If that weren't bad enough, the candidate asked photographers not to take his picture while he ate the sandwich; shutters clicked anyway, and Kerry was caught nibbling daintily at his sandwich -- another serious faux pas.
'It will doom his candidacy in Philadelphia,' predicted Craig LaBan, food critic for the Philadelphia Inquirer, which broke the Sandwich Scandal. After all, Philly cheesesteaks come with Cheez Whiz, or occasionally American or provolone. But Swiss cheese? 'In Philadelphia, that's an alternative lifestyle,' LaBan explained.
And don't even mention Kerry's dainty bites. 'Obviously, Kerry's a high-class candidate, and he misread the etiquette,' LaBan said. 'Throwing fistfuls of steak into the gaping maw, fingers dripping -- that's the proper way.'"
The last summer I lived in PA I ate steak sandwiches every night, but they are harder to find in Southwest Virginia - the best places are out toward S. Holston Lake on U.S 421, far from the office but worth the trip.
Waiver and limitations bar claim for death in charity bike ride
The Washington Post has this article on the ruling by D.D.C. Judge Rosemary Collyer against the claims of the representatives of a woman who died as the result of her participation in a bike ride, because she had signed a written waiver as to some claims and others were barred by the Virginia statute of limitations.
When I was a law clerk, Judge Collyer, then a lawyer with Crowell & Moring, appeared in a case in Big Stone Gap, on the interesting issue of whether the special commissioners who were attempting to collect the contempt fines imposed by Judge McGlothlin of the Circuit Court of Russell County in enforcement of his injunction against strike misconduct by the United Mine Workers could garnish the dues collected by employers for union members under pursuant to the check off requirement in their collective bargaining agreements with the Mine Workers. (Judge Jones was representing the special commissioners, Ms. Collyer and some other lawyer were there for the employers, opposing the garnishment.) So far as I recall, Judge Williams never ruled on this issue, which was a good idea, since the state court contempt fines were ultimately thrown out by the Supreme Court of the United States.
When I was a law clerk, Judge Collyer, then a lawyer with Crowell & Moring, appeared in a case in Big Stone Gap, on the interesting issue of whether the special commissioners who were attempting to collect the contempt fines imposed by Judge McGlothlin of the Circuit Court of Russell County in enforcement of his injunction against strike misconduct by the United Mine Workers could garnish the dues collected by employers for union members under pursuant to the check off requirement in their collective bargaining agreements with the Mine Workers. (Judge Jones was representing the special commissioners, Ms. Collyer and some other lawyer were there for the employers, opposing the garnishment.) So far as I recall, Judge Williams never ruled on this issue, which was a good idea, since the state court contempt fines were ultimately thrown out by the Supreme Court of the United States.
More on the schism within the Sixth Circuit
The NY Times (registration required) has this article on the split within the Sixth Circuit, and it says, among other things:
"In an extraordinary breach of judicial etiquette, the judges on the federal appeals court there have repeatedly accused each other of lying and underhanded conduct in important cases involving the death penalty and affirmative action. The public airing of these internal battles in decisions of such social importance has been the talk of appellate specialists nationwide."
"In an extraordinary breach of judicial etiquette, the judges on the federal appeals court there have repeatedly accused each other of lying and underhanded conduct in important cases involving the death penalty and affirmative action. The public airing of these internal battles in decisions of such social importance has been the talk of appellate specialists nationwide."
Tuesday, August 12, 2003
Judge Turk reversed for refusing mixed-motive instruction in W.D. Va. Title VII case
In Rowland v. American General Finance, Inc., the Fourth Circuit in an opinion by Judge Motz joined by Chief Judge Wilkins and Judge Wilkinson held that Judge Turk of the W.D. Va. erred in refusing to give the plaintiff's requested jury instruction regarding "mixed motive," applying the Supreme Court's decision from this term in the case of Desert Palace, Inc. v. Costa.
In the opinion, Judge Motz says, "there is no question that without the mixed-motive
instruction, Rowland had almost no chance of prevailing." That seems like a strange thing to say, and I'm not sure that I agree with it, as either necessary or even true.
The court went on to say that Judge Turk abused his discretion in admitting hearsay evidence, but concluded that there was no error in allowing the defendant to use exhibits and witnesses that were not disclosed in full compliance with the pre-trial disclosure requirements of Rule 26.
In the opinion, Judge Motz says, "there is no question that without the mixed-motive
instruction, Rowland had almost no chance of prevailing." That seems like a strange thing to say, and I'm not sure that I agree with it, as either necessary or even true.
The court went on to say that Judge Turk abused his discretion in admitting hearsay evidence, but concluded that there was no error in allowing the defendant to use exhibits and witnesses that were not disclosed in full compliance with the pre-trial disclosure requirements of Rule 26.
South Carolina rules no negligence claim against banks for issuing credit card to impostors
Law.com has this article about a recent decision by the Supreme Court of South Carolina on a certified question from the D.S.C., in which the Court held that banks could not be liable for negligence in issuing credit cards to impostors.
The question certified was this: "Does South Carolina law recognize the tort of Negligent Enablement of Impostor Fraud? If so, what are the elements of the tort and does plaintiff's complaint state an actionable claim for the tort?" Man, that's a weird question. Negligence in negligence. I would have guessed the question was more like, do banks have a duty to exercise reasonable care to prevent impostors from causing harm to others by obtaining credit cards in their names - or something like that.
The Court ruled on the basis that the connection between the credit card issuers and the consumers is too attenuated.
The question certified was this: "Does South Carolina law recognize the tort of Negligent Enablement of Impostor Fraud? If so, what are the elements of the tort and does plaintiff's complaint state an actionable claim for the tort?" Man, that's a weird question. Negligence in negligence. I would have guessed the question was more like, do banks have a duty to exercise reasonable care to prevent impostors from causing harm to others by obtaining credit cards in their names - or something like that.
The Court ruled on the basis that the connection between the credit card issuers and the consumers is too attenuated.
Monday, August 11, 2003
The bear was just looking around
According to this report, authorities in NC south of Danville are charging a man for shooting a black bear, discounting his story that the bear was chasing his children, and concluding with this comment:
"'This is black bear,' said Joyce of the bear that was recently shot. 'It’s not a grizzly bear or anything that people see in the movies and all. (The bear) was just looking around. We ask that people not shoot them.'"
"'This is black bear,' said Joyce of the bear that was recently shot. 'It’s not a grizzly bear or anything that people see in the movies and all. (The bear) was just looking around. We ask that people not shoot them.'"
Sunday, August 10, 2003
More on Allyson Duncan, newest member of the Fourth Circuit
The Virginian-Pilot has this interesting story on Judge Allyson Duncan, who was nominated to the U.S. Court of Appeals for the Fourth Circuit by President Bush and has been confirmed by the U.S. Senate.
Richmond paper tells on Lynchburg paper for AG fundraising story
In this editorial, the Richmond paper says the Lynchburg paper messed up in pointing the finger at Virginia Attorney General Jerry Kilgore for fund-raising that was done by Mark Earley.
The editorial concludes: "Pesky little facts sometimes get in the way. And the attempted smear was a tad tawdry."
The editorial concludes: "Pesky little facts sometimes get in the way. And the attempted smear was a tad tawdry."
The construction on Interstate 81
The Richmond Times-Dispatch has this article on the impact of the proposed widening of Interstate 81 on its view of the surrounding countryside.
Roanoke Times says extend 21-day rule for people who plead guilty
The Roanoke Times has this editorial saying the proposed revision of the 21-day rule allowing post-conviction evidence of innocence should be extended to include those who enter guilty pleas.
More on prayer at Chesterfield County board of supervisors' meetings
This opinion piece recites the following:
"Officials in Chesterfield County still don’t get it. So a few weeks ago a priestess of the Wiccan religion took them to court, challenging the “prayer policy” as a violation of religious freedom. It seems that the Chesterfield Board of Supervisors has decreed that “Judeo-Christian” prayers are constitutional – apparently because they are part of something called “American civil religion.” And since they worship one God, Muslims have been added to the list. Other faiths with deities that don’t pass muster – including Wiccans, Hindus and Buddhists – need not apply."
The piece concludes that "The day a court orders Chesterfield County to add a Wiccan priestess to the prayer list will be the last day of prayer at a board meeting."
"Officials in Chesterfield County still don’t get it. So a few weeks ago a priestess of the Wiccan religion took them to court, challenging the “prayer policy” as a violation of religious freedom. It seems that the Chesterfield Board of Supervisors has decreed that “Judeo-Christian” prayers are constitutional – apparently because they are part of something called “American civil religion.” And since they worship one God, Muslims have been added to the list. Other faiths with deities that don’t pass muster – including Wiccans, Hindus and Buddhists – need not apply."
The piece concludes that "The day a court orders Chesterfield County to add a Wiccan priestess to the prayer list will be the last day of prayer at a board meeting."
Don Beyer is a Howard Dean man
Just in case you were wondering, former Virginia lieutenant government Don Beyer is supporting presidential hopeful Howard Dean, as reported here. (I wonder what kind of car Dean drives.)
Hunton & Williams lawyer becomes president-elect of ABA
The Richmond Times-Dispatch has this report on the selection of Robert Grey as president-elect of the American Bar Association.
Judge Turk and Judge Jones of the W.D. Va. comment on sentencing restrictions
In this Roanoke Times article, Judge Turk and Judge Jones offer their perspectives on the federal law limiting their discretion in imposing criminal sentences.
Judge Turk noted that he has been reversed four times for downward departures from the federal guidelines. Judge Jones said he would be undeterred by the Justice Department's monitoring in deciding which cases are appropriate for downward departures.
Last week, as reported here, a federal judge in North Carolina "issued an unusual order declaring he would no longer accept plea agreements negotiated by federal prosecutors and defense attorneys in which defendants waived and the government retained rights to appeal the sentence."
Apparently, however, the judges of the W.D. Va. are more restrained than many of their colleagues, if these statistics from the article are correct:
"Federal judges in the Western District departed in only 1.8 percent of the cases in fiscal year 2001, the last year for which figures were available. That figure does not include instances in which judges have sentenced defendants to less time based on recommendations from federal prosecutors, which happened 30.1 percent of the time in fiscal year 2001.
In the 4th Circuit as a whole, federal judges sentenced defendants to less than the guidelines called for in 5.2 percent of the cases during fiscal year 2001, according to the U.S. Sentencing Commission.
By contrast, in the 9th Circuit, which is widely considered the most liberal circuit in the country, federal judges in Arizona departed below the guidelines in more than 62 percent of the cases."
Judge Turk noted that he has been reversed four times for downward departures from the federal guidelines. Judge Jones said he would be undeterred by the Justice Department's monitoring in deciding which cases are appropriate for downward departures.
Last week, as reported here, a federal judge in North Carolina "issued an unusual order declaring he would no longer accept plea agreements negotiated by federal prosecutors and defense attorneys in which defendants waived and the government retained rights to appeal the sentence."
Apparently, however, the judges of the W.D. Va. are more restrained than many of their colleagues, if these statistics from the article are correct:
"Federal judges in the Western District departed in only 1.8 percent of the cases in fiscal year 2001, the last year for which figures were available. That figure does not include instances in which judges have sentenced defendants to less time based on recommendations from federal prosecutors, which happened 30.1 percent of the time in fiscal year 2001.
In the 4th Circuit as a whole, federal judges sentenced defendants to less than the guidelines called for in 5.2 percent of the cases during fiscal year 2001, according to the U.S. Sentencing Commission.
By contrast, in the 9th Circuit, which is widely considered the most liberal circuit in the country, federal judges in Arizona departed below the guidelines in more than 62 percent of the cases."
4th Circuit nominee Allen described as "hard to pin down"
The Virginian-Pilot has this story on those with varying views about Claude Allen, who has been nominated by President Bush to a vacancy on the U.S. Court of Appeals for the Fourth Circuit.
The article includes this paragraph regarding Allen's rating from the ABA:
"Those concerns were highlighted late last month when the American Bar Association rated Allen as 'qualified' for the bench, but withheld the organization's top evaluation of 'well qualified.' The ABA panel did not explain its rating, although the criteria it uses suggests that a nominee to federal court should have been admitted to the bar for at least 12 years. Allen spent 7 1/2 years as a judicial clerk, as a private attorney and working for the Virginia Attorney General's Office."
The article also notes:
"The Senate Judiciary Committee has not yet scheduled a hearing to consider Allen's nomination. Although the Republican's beliefs on reproduction, immigration and other topics are likely to be scrutinized closely, it is unclear how many organizations will formally oppose the nomination."
The article includes this paragraph regarding Allen's rating from the ABA:
"Those concerns were highlighted late last month when the American Bar Association rated Allen as 'qualified' for the bench, but withheld the organization's top evaluation of 'well qualified.' The ABA panel did not explain its rating, although the criteria it uses suggests that a nominee to federal court should have been admitted to the bar for at least 12 years. Allen spent 7 1/2 years as a judicial clerk, as a private attorney and working for the Virginia Attorney General's Office."
The article also notes:
"The Senate Judiciary Committee has not yet scheduled a hearing to consider Allen's nomination. Although the Republican's beliefs on reproduction, immigration and other topics are likely to be scrutinized closely, it is unclear how many organizations will formally oppose the nomination."
Inaccuracies in online directories about health providers
The Washington Post has this story on inaccuracies in online directories on health care providers, including those in Virginia.
Friday, August 08, 2003
More than you want to know about PDF
With electronic filing coming to the federal courts in our neighborhood, area lawyers will soon need to know more about PDFs. Dennis Kennedy links to an article from the PDFzone, a site which he accurately describes as "always useful."
Appeals court affirms attorneys' fees against EEOC
Abstract Appeal links here to this 11th Circuit decision where the court of appeals upheld an award of fees against the EEOC, with a final footnote questioning the motives of the agency's litigation strategy.
More on Ashcroft, judges, and sentencing
Curmudgeonly Clerk has this interesting post, whileLegal Theory Blog has a post citing this post by Is That Legal.
More on the Alexandria circuit court judge dispute
In July, the Virginia Connection had this detailed article on the reaction of local officials to the efforts of Republican legislators to influence the selection of the Circuit Court judge for Alexandria.
Virginia county issues campaign sign rules
This article describes the restrictions on campaign signs in Loudoun County.
What to do with a bad hearing transcript
In U.S. v. King, the Fourth Circuit in a per curiam opinion for the panel of Judges Luttig, Motz, and Shedd affirmed the guilty plea and convictions of the defendant, based on the written record, of which it was noted in a footnote: "The material includes the supplemental appendix in which the court reporter who transcribed the Rule 11 proceeding stated in an affidavit that she omitted a word in the original transcript. The court reporter stated in her affidavit that defense counsel responded to the court’s question as to whether he had any question about King’s competence, 'I have no doubt, Your Honor.' A corrected transcript page was submitted."
I've wondered about that before - for in-court proceedings, no one gets to fill out an errata sheet on the court reporter's transcript, which is usually remarkably good but not perfect. (I wouldn't take the court reporter's job for any amount of money.)
I've wondered about that before - for in-court proceedings, no one gets to fill out an errata sheet on the court reporter's transcript, which is usually remarkably good but not perfect. (I wouldn't take the court reporter's job for any amount of money.)
If you're scoring at home, or even if you're . . .
Sometime earlier this week, the 5,000th visit was made to SW Virginia law blog (since I figured out the SiteMeter in March), with over 3,000 in June and July.
By contrast, the Bravenet counter on Howard Bashman's How Appealing site says something over 1,800,000.
Probably the same ratio applies between his income and mine.
By contrast, the Bravenet counter on Howard Bashman's How Appealing site says something over 1,800,000.
Probably the same ratio applies between his income and mine.
UT president resigns
The AP reports here that the president of the University of Tennessee at Knoxville is resigning, amid questions about money and ethics.
I've been vaguely following this via HobbsOnline AM.
In the perfect world, every university would have a president like John Casteen.
I've been vaguely following this via HobbsOnline AM.
In the perfect world, every university would have a president like John Casteen.
More on 21-day rule reform efforts
The AP has this report on further efforts to reform Virginia's 21-day rule limiting when new evidence of innocense can be introduced after a final order of conviction. The latest news is that defense lawyers are arguing that people "who plead guilty to crimes should not be excluded from a proposal eliminating Virginia's time limit for convicted criminals to produce new evidence of innocence."
This article in the Virginian-Pilot says the panel is thinking those who plead guilty should not get the benefit of extra time.
This article in the Virginian-Pilot says the panel is thinking those who plead guilty should not get the benefit of extra time.
Thinking on the Justice Department plan to keep score on judges and sentencing
If the Attorney General is keeping score on federal judges, with the idea of creating a judicial blacklist, as speculated here in the NY Times (registration required) and here in the Washington Post, just how is that supposed to work? If a judge makes too many downward departures, will the Justice Department pursue a higher or lower number of criminal cases before him or her? If the answer is lower, is that like punishing your friends and rewarding your enemies? What else is there - bad job ratings for trial court judges seeking promotion to the court of appeals? Few of the trial court judges over say 55 are going to be considered for promotion to the courts of appeals.
On the other hand, I guess the Justice Department is as entitled to try to forum-shop like anyone else when they have a choice between "friendly" and "unfriendly" jurisdictions - so maybe this data collection effort is not really news.
On the other hand, I guess the Justice Department is as entitled to try to forum-shop like anyone else when they have a choice between "friendly" and "unfriendly" jurisdictions - so maybe this data collection effort is not really news.
Thursday, August 07, 2003
Prosecutors apply Virginia's lynch law to death case
This article in the Virginian-Pilot explains why prosecutors are using Virginia's "lynch law" in the prosecution over a death in Virginia Beach.
Fredericksburg sets up e-mail archive
This article describes the efforts by the City of Fredericksburg, VA to archive all the e-mail to and from the City Council. The woman in charge was quoted as saying, "This has been an absolute nightmare." I can believe it.
Support for UCITA erodes further
According to this article, support from the National Conference of Commissioners on Uniform State Laws for the Uniform Computer Information Transactions Act ("UCITA") is fading - while UCITA has been passed only in Maryland and right here in Virginia. The article notes that "four states--Vermont, Iowa, West Virginia and North Carolina--have passed anti-UCITA "bomb-shelter" provisions, which make UCITA laws in Maryland and Virginia inapplicable to residents of those states." The article says the following regarding NCCUSL's dropping of support for UCITA:
"The lack of acceptance has prompted NCCUSL to announce on Friday that it had pulled the plug on all efforts to help states introduce and enact the bill. Without that backing, UCITA is unlikely to gain further consideration from the states, according to Katie Robinson, a NCCUSL spokeswoman.
"Without the conference pushing UCITA, I don't see any other legislative activity happening on it," Robinson said.
NCCUSL, which concluded its annual meeting in Washington this week, also disbanded the special committee that oversees its UCITA activity. Robinson said politics had interfered with the group's efforts in support of the bill, adding that the group may revisit the subject of state laws that govern software contracts and digital information in the future."
NCCUSL's withdrawal of support for UCITA also caught the eye of this commentator, who asks "What's to be done with UCITA?".
"The lack of acceptance has prompted NCCUSL to announce on Friday that it had pulled the plug on all efforts to help states introduce and enact the bill. Without that backing, UCITA is unlikely to gain further consideration from the states, according to Katie Robinson, a NCCUSL spokeswoman.
"Without the conference pushing UCITA, I don't see any other legislative activity happening on it," Robinson said.
NCCUSL, which concluded its annual meeting in Washington this week, also disbanded the special committee that oversees its UCITA activity. Robinson said politics had interfered with the group's efforts in support of the bill, adding that the group may revisit the subject of state laws that govern software contracts and digital information in the future."
NCCUSL's withdrawal of support for UCITA also caught the eye of this commentator, who asks "What's to be done with UCITA?".
Subscribe to:
Posts (Atom)