Blogs > The Law Blogger

The Law Blogger is a law-related blog that informs and discusses current matters of legal interest to readers of The Oakland Press and to consumers of legal services in the community. We hope readers will  find it entertaining but also informative. The Law Blogger does not, however, impart legal advice, as only attorneys are licensed to provide legal counsel.
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Tuesday, August 23, 2016

When the Prosecutor Becomes the Judge

Former Judge Elizabeth Coker
In the legal system, there is a natural progression for assistant prosecuting attorneys to get elected to the district or circuit court. Their extensive trial experience puts them in an excellent position to run an efficient courtroom.

What about the rest of the equation? Judges must be fair and impartial for the legal system to work. A case from Polk County Texas from a few years back comes to mind that illustrates what can happen when judge's are not impartial.

Former Polk County District Judge Elizabeth E. Coker, a former assistant prosecutor herself, was busted texting questions to an assistant prosecutor that she thought the APA should ask in order to secure a criminal conviction. The matter came to light in late 2013 via a "whistleblower"; an investigator for the district attorney's office that did the right thing when he became aware of what the judge was doing.

Judges cannot conduct ex parte -one-sided- communications with the parties or lawyers involved in a lawsuit. Obviously, even innocent banter about a case can cause a drastic shift from a level playing field to one that tilts toward one of the litigants.

Since her brokered resignation in 2014, many of the defendants that were convicted in her court room have lodged appeals invoking their right to a fair trial under the 6th Amendment to the United States Constitution. Immediately following her resignation from the bench, Coker announced her bid for district attorney for Polk County; she was roundly defeated.

What this story tells us is that some lawyers are not fit to be judges. Our legal system can only work when the judges are fair and impartial.

Many prosecutors seek judgeships; many prosecutors have become excellent judges. Thankfully, all states have a judicial tenure commission charged with the investigation and prosecution of crooked judges.

Post #555

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Thursday, August 18, 2016

Pokemon Go Raises Legal Issues

Yep, that Pokemon Go; its been trending in the news. From proponents: it's good because it gets the tech nerds, the "twitchers" among us, out and about burning calories. From detractors: it's bad because it places hoards of techies where they otherwise would not be, including private property, and presents a high level of distraction for drivers and pedestrians alike.

This cell phone app has swept the country, if not the globe, with over 10-million downloads and counting. It is an augmented reality game where players present themselves at pinpoint locations, usually but not always some form of local or significant landmark, in order to capture a wide variety of creatures familiar to those that have sampled the Pokemon wares.

Of course, the service agreement for the app attempts to disclaim liability for Niantic, the game's software developer, and Nintendo, which owns a one-third stake in the game, if a user is injured or laws are broken during play. Nintendo's stock has soared since the game's release in early July.

Pokemon Go is a free app that can be downloaded to your cell phone; a Google account is sufficient to get registered, select and customize an avatar. Then its all about using the bare-bones Google-style map -which does not label streets or other landmarks and only indicates true North- to locate PokeStops and to capture creatures like Pikachu, the long-serving ambassador for the Pokemon franchise.

The media has reported on more than one vehicle collision caused by a driver distracted by the game. Private property owners have complained, and one California couple has sued the producers of the game in federal court, for creating a nuisance on or near their property. The plaintiffs' theory of liability is that the game makers have intentionally embedded GPS coordinates near their home without their permission resulting in property damage, trespass and other disruptions to the quiet enjoyment of their property.

For their part, the game makers have developed a user agreement that warns players to obey laws, to maintain their own insurance, and to avoid inflicting "emotional distress" during play. The agreement also contains this warning:
To the extent permitted by applicable law, Niantic, The Pokemon Company and TPCI disclaim all liability related to any property damage, personal injury, or death that may occur during your use of our Services, including any claims based on violation of any applicable law, rule, or regulation or your alleged negligence or other tort liability.
Considering the trend in courts throughout Michigan to uphold contracts as they are written, these terms may be difficult to overcome.

Participation in the game causing injury to a player also raises issues of comparative fault. If a player is injured by a driver, for example, while playing the game, the driver's insurance company can assert that the cause of the pedestrian's injury was due, in part, to the distraction of the augmented reality game.

As the popularity of the game increases along with the enthusiasm of the players, the lawsuits cannot be far behind. We here at the Law Blogger plan to keep an eye on the situation.

Post #554

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Wednesday, August 3, 2016

Lawyers Mine Jurors' Social Media Profiles

If you are serving as a juror these days, you need to know that lawyers are snooping around your social media profile before you even step foot into a courtroom. Is this an invasion of privacy, or simply due diligence on the part of the lawyer?

The practice of lawyers researching the social media profiles of prospective jurors is being examined by judges conducting trials in both state and federal courts, as well as by the American Bar Association. In 2014, the ABA issued a statement that lawyers can and should conduct due diligence for their clients heading to trial by researching jurors' profiles.

This practice received much attention in a recent jury trial in federal court that pitted Google against Oracle. In the lead up to the trial, it came to the federal judge's attention that the big-time lawyers were conducting mining operations on the prospective jurors.

The judge in this case, with jurors' privacy rights in mind, required that the lawyers in the case inform him of the scope of their juror research. He further ordered that if the scope of the jury research included their social media platforms, the jurors were to be offered the opportunity to adjust their privacy setting in advance of the lawyers' scrutiny.

When a case heads to a jury trial, jurors are summoned to the court well in advance of the trial date with a notice and a questionnaire they must complete regarding basic data such as their employment, marital status and prior involvement with the court system. This information, along with their address, is accessible to the attorneys involved in the case.

A lot can be learned about a person if this data is used for further personal research. Social media, in particular, is a veritable goldmine of public information that is useful to gleaning how a juror may view a particular case.

Some lawyers, however, go too far and attempt to "connect" or "friend" the person on social media in order to delve deeper into their electronic profile. This practice has been disavowed by the ABA, and gives lawyers a bad name if you were to ask us here at the Law Blogger.

Various state High Courts have began to weigh in on the issue. The Kentucky Supreme Court, for example, overturned a murder conviction on the basis that the victim's mother was Facebook friends with one of the jurors.

Social media users should keep in mind that their posts are not private. There are lawyers lurking about, apparently mining your data as soon as you are summoned for jury duty.

Post #553

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Saturday, July 30, 2016

Notorious RBG and an Independent Judiciary

United States Supreme Court Justice Ruth Bader Ginsburg, sometimes known by her tag Notorious RBG, has been mixing it up of late, openly trashing Republican presidential nominee Donald Trump in a series of interviews. She asserts Trump is uniquely disqualified to be President and that the exercise of his powers of appointment under Article II of the U.S. Constitution would be catastrophic for the federal judiciary and the SCOTUS.

Now, full disclosure: if you were to stroll down the halls of our law firm, you'd bump into a few card-carrying Republicans, but you would not likely find a Trump supporter among them. Nevertheless, we here at the Law Blogger do find it disturbingly distasteful whenever a SCOTUS justice speaks their mind about a sitting President or, more generally, partisan politics.

There are good reasons for that. The federal judiciary is designed to remain independent of the other two branches of government. Recognizing that partisan politics are alive and well at the High Court and throughout the federal courts across the nation, legal professionals still count on the judges assigned to their cases to bring an unbiased and neutral mindset to the decisions they make based on the evidence presented in the cases.

When justices speak out publicly, it shatters this illusion. Who could forget election night 2000 when Justice Sandra Day O'Connor, the first woman appointed to the SCOTUS, infamously quipped that it was "terrible" that Al Gore was apparently heading for victory and then, months later, participated in one of the more historically partisan decisions ever to be issued by the High Court.

The code of judicial ethics only binds lower federal court judges; one tenet proscribes a federal judge from commenting on a presidential election. While this ethical code does not bind justices of the Supreme Court, there is nevertheless a powerful custom, usually observed by the justices, requiring them to maintain a safe distance from the partisan politics in which the other  two branches marinate.

Predictably, Trump immediately called upon RBG to resign following her public commentary on his candidacy. Democrats have been calling for the 83 year old justice to resign since 2010, long before President Obama became a lame duck, now powerless to appoint a successor to the Notorious One.

Post #552

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Monday, July 25, 2016

The Prosecutor's Blue Book

Full disclosure: as criminal defense lawyers, we would certainly appreciate getting our hands on the so-called "Blue Book"; a practice manual rumored to circulate among federal prosecutors. One of the primary topics allegedly covered in the manual is a prosecutor's duty to disclose exculpatory evidence.

Our criminal justice system is designed to prevent, to the largest degree possible, the possibility that an accused person is convicted of a crime they did not commit. One of the tenets that furthers this principle is that prosecutors have a solemn duty to disclose exculpatory evidence to the defense lawyer representing the accused.

A few years ago, as this Blogger was heading to trial with a client accused of a sexual assault, the assistant prosecutor turned over reports from the alleged victim's high school that she had, on at least two other occasions, made similar allegations involving fellow students that were proven false. Here's the catch: the assistant prosecutor was leaving her job to practice criminal defense and did not send me the evidence until a week before she left her job.

We were acquitted in that case but I've often wondered whether I would have received the evidence if the assistant prosecutor did not leave her post a month prior to the trial. Although our use of the evidence was limited by the trial court judge, it still had a favorable impact on the development of our defense.

In an interesting recent case, the National Association of Criminal Defense Lawyers sued the Justice Department using the Freedom of Information Act to obtain a copy of the federal criminal discovery blue book. The genesis of the case arose from the reversed conviction of former U.S. Senator from Alaska Ted Stevens, where prosecutors elected not to turn over materials necessary for his defense.

According to the D.C. Circuit Court of Appeals, the book contains, "information and advice for prosecutors about conducting discovery in their cases, including guidance about the government’s various obligations to provide discovery to defendants." The USDOJ refused to disclose the book, asserting it was exempt from FOIA as attorney-client work-product; both the district court and the Ninth Circuit agreed.

So the blue book will not see the light of day unless an Assistant United States Attorney leaks one to the press or to the criminal defense bar. Not a likely scenario.

Nevertheless, we can presume the blue book deals with exculpatory evidence and how to handle it from a prosecutorial point-of-view. As criminal defense lawyers, we would like to believe that such evidence is routinely disclosed so that innocent folks are not convicted and the path toward the truth is respected in each case.

The cynical among us say that's way too much to ask.

Post #551

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