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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Saturday, February 26, 2011

Injury Lawyer's Fees May Get Him Disbarred

In 1977, a fire burned through a popular nightclub in Southgate, Kentucky, killing 165 people and horribly scarring 200 more.  A young lawyer, Stanley Chesley, filed a plaintiffs' lawsuit on behalf of the victims in that fire, advancing a novel theory of liability.

Rather than simply suing the Beverly Hills Supper Club for the insurance policy limits, Chesley fashioned a suit that included more than 1000 defendants; the entire aluminum electrical wire industry.  The tactic paid handsomely; over $50 million.

Thanks to this and other similar lawsuits, the mass-tort era was born.  But Chesley did not stop with the nightclub case.  Incredibily, he was involved in several other big hits: breast implant litigation, the tobacco settlement, drug manufacturing cases, even the Pan Am crash over Lockerbie Scotland.  The sky was indeed the limit.

Chesley, licensed in Ohio and Kentucky, makes our own Geoffrey Fieger look like a first year law student.  And like Feiger, Chesley is getting tangled-up in disciplinary actions with the state bar where he practices.

The problem arose for Chesley when, in 1998, he allegedly muscled his way into the Fen-Phen drug product litigation in Kentucky.  The Kentucky Bar Association investigated allegations that the attorneys involved in the case were misrepresenting the parameters of the settlement to their clients.  Eventually, two of the lawyers involved went to prison and the judge on the case was forced off the Boone County Circuit Court bench.

The Kentucky Bar Association, having concluded a series of hearings, recommended this week that Chesley get disbarred and that he pay back more than $7.5 million in fees that it says were not within the scope of his fee agreement and therefore belongs to Chesney's Fen-Phen clients.

Allegedly, Chesney paid himself a multi-million dollar bonus after sweetening the lawyer fee portion of the drug settlement in an off-the-record meeting with the disgraced judge who presided over the case at the time.

The lawyer is appealing the recommendation to the Kentucky Supreme Court.  Looks like whatever the outcome, greed apparently tainted a lot of talented legal professionals in the underlying product liability case.

Sad that this is a tale that is oft re-told in our time.

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Sunday, February 20, 2011

Are Digital Inspections Constitutional?

Whether a search of your computer is legal depends, in large part, on where the search takes place.  If you are singled-out at an international boarder, for example, you are going to be searched regardless of the presence of a "reasonable suspicion".

If you are in a place where you have a reasonable expectation of privacy, on the other hand, the Fourth Amendment to the U.S. Constitution requires probable cause prior to a justified police search of your digital data.

This issue is coming-up with increasing frequency as people travel with their digital lives at their side; and thanks to the increasing sophistication of law enforcement search methods.

Courts have determined that international borders are areas where government interests trump any reasonable expectation of privacy, if one even exists at all.  Customs agents at these boarders are trained to look for smugglers, terrrorists, and child pornographers.

The heightened search and seizure powers of Customs agents were tested in a recent case involving a local contract employee with the Walled Lake Consolidated Schools.  Two years ago, Craig Aleo was intercepted at the US-Canadian border in Buffalo, NY.  Customs agents conducted a digital inspection of his laptop and discovered images of child pornography; some of them made and distributed by Aleo.

The former Davisburg resident and Walled Lake schools employee was sentenced last January by federal judge Bernard Friedman to 60-years in federal prison. 

While no one wants their digital life disturbed when traveling through borders, particularly lawyers with briefcases of confidential goldmines, neither does anyone feel sorry for child pornographers or terrorists.

In another recent case, this one involving a suspected "terrorist", the former Muslim chaplain at Guantanamo Bay was routinely subjected to digital inspections whenever he re-entered the US.  Once, upon being searched and released, the Muslim chaplin discovered that the Customs agent left a forensic scan disc in his computer.  Although the chaplain was not a terrorist, he fit the profile, so the digital inspections were conducted.

A thorough digital scan of a lap top computer can take more than 3-hours, and that's without securing a warrant.  Forensic hard-drive copies take even longer to produce.

Digitized information does not always carry signs of illegality like child porn images.  Evidence of terrorism, for example, is often well-hidden and encrypted in the machine's hard-drive. 

The National Association of Criminal Defense Lawyers has taken the position that laptop computer searches conducted at international borders are "non-routine" and thus should require some modicum of articulable suspicion. 

Such articulable suspicion is required by highly invasive search modes such as the search of a person's ailmentary canal.  A laptop search is probably even more intrusive as it encompasses your entire being, both personal and professional.

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Monday, February 14, 2011

The Silent Justice

Supreme Court Justice
Clarence Thomas
SCOTUS pundits are not expecting Justice Clarence Thomas to ask any questions during the balance of the Court's term, which ends in June.  And why should they?  Justice Thomas last asked a question during oral argument in a February 2006 death-penalty case; he's been silent ever since.

Rather than interact with the lawyers appearing before him, Justice Thomas has acquired the odd habits of slowly rotating in his leather chair in the famous courtroom, staring at the ceiling, examining his nails, while listening to the lawyers' oral arguments and the questions from his more engaged colleagues.  When I was sworn into the SCOTUS bench last term, I witnessed this peculiar behavior from the jurist first-hand.

In 1991, when President Bush (41) needed to replace the retiring Justice Thurgood Marshall, a giant on the High Court, he was looking for a conservatively-minded jurist.  Aside from those required credentials, President Bush had to select someone to follow Justice Marshall's distinguished tenure.  Before ascending to the SCOTUS bench, Marshall successfully argued the seminal Brown v Board of Education case, which abolished the "separate but equal" fallacy in the public school context.

Bush's short-list began and ended with Clarence Thomas, who had only very recently been appointed to the federal appellate bench for the D.C. circuit following a solid career in the EEOC during the Regan-era.  He had never argued a case before the SCOTUS.

But who could forget, on the other hand, how the sordid Anita Hill fiasco tarnished the selection process for the high court?  And what about last month's story about unpaid taxes on his joint return with his wife?   Well, never mind all that, as his is a job-for-life.

In noting Thomas' half-decade of "taking-up space" on the Court, Adam Liptak observed in the NYT:
His attitude toward oral arguments contrasts sharply with that of his colleagues, who seem to find questioning the lawyers who appear before them a valuable way to sharpen the issues in the case, probe weaknesses, consider consequences, correct misunderstandings and start a conversation among the justices that will continue in their private conferences.
As an appellate practitioner, that's exactly what you hope to get out of oral argument; that is how our common law is supposed to get forged.

Staying silent for so long sure seems like an ineffective way to occupy one of the more significant seats on the most storied bench in the land.

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Sunday, February 13, 2011

Retired Wayne Circuit Judge Heading to Trial as an Accused Defendant

It remains one of the biggest cocaine busts in Michigan history. Over 100-pounds were seized by the Inkster Police Department in early-2005. So much cocaine, it literally stunk-up a courtroom in the Frank Murphy Hall of Justice; Judge Mary Waterstone's courtroom.

The case was so huge, Judge Waterstone feared her courtroom, and the cast of characters surrounding it, would be overwhelmed. Her instincts were correct as the case has gone South for everyone.

Fast-forward 6-years. Judge Waterstone, the former Assistant Wayne County Prosecuting Attorney, and the Inkster police detective in charge of the original case are heading to trial next month on perjury-related felony charges of their own before Wayne Circuit Judge Timothy Kenny.

The original cocaine distribution charges alarmed now-retired Judge Waterstone. In the ensuing investigation which engulfed her, Judge Waterstone has gone on record stating the assistant prosecutor was in way over her head, that she didn't trust the drug dealers' high-profile attorney, that the case should have been charged in federal court, she feared for her own safety and for the safety of her staff, and she feared the witness-for-the-prosecution (a paid confidential police informant) would wind-up dead.

Alexander Aceval and Ricardo Pena were jury-tried on possession and distribution charges related to the massive cocaine haul. During trial, Wayne County Assistant Prosecutor Karen Plants sought an ex-parte meeting with Judge Waterstone, advising the judge that her police witnesses were lying to the jury.

The mechanics of the bust involved the informant, while in touch with the Inkster Police, transporting the cocaine from Aceval's "J Dub" bar in Riverview, with Aceval following in his own vehicle. Police took-down both vehicles but did not charge their informant. At Aceval's trial, the police apparently provided false testimony as to whether they knew or had been in contact with their informant.  Nor was the jury told that the informant was to receive a 10% commission from the forfeited funds generated in the bust upon Aceval's conviction.

Hearings had been conducted (in camera) at the request of Aceval's attorney seeking the identity of the police informant. Judge Waterstone, confident that an informant did exist, ruled that the identity of the informant was an issue that could not be raised at trial before the jury.

When she learned of the officers' perjured testimony, Waterstone says she faced the dilemma of protecting the informant's life; believing the defendant's attorney, James Feinberg, could not be trusted with such information.

Around the time of Aceval's trial, attorney Feinberg was making headlines elsewhere, representing one of the most notorious drug gangs in Detroit history; the so-called "Black Mafia Family". Once the Aceval trial got underway, Judge Waterstone observed that attorney Feinberg's obvious strategy was to simply ignore her order regarding the confidential informant's identity, and pursue a line of questioning designed to put the police witnesses "on the spot" relative to their informant.

Perplexed by the law enforcement perjury, with death threats lodged in the case from the outset, the prosecutor (with Waterstone informally kept in the loop) consulted with the Wayne County Prosecutor's renowned appellate-chief, Timothy Baughman, who recommended using a separate sealed record of the prosecutor advising the judge on the particulars of the perjured testimony, then continue with the trial.

Both the judge and the prosecutor are now second-guessing that decision as they head into their own trial(s). Ironically, Judge Waterstone subsequently lamented to investigators that rather than follow Baughman's suggestion to continue with the trial, she wished that she had consulted with fellow-judge Tim Kenny, who is now presiding over her trial and could ultimately sit in judgment of his former colleague on the bench.

When Judge Waterstone stepped-off the case, her successor, Judge Vera Massey Jones, un-sealed the in camera hearing transcripts which revealed the prosecutor's decision not to object to known perjured police testimony to avoid "telegraphing" the informant's identity.  Judge Waterstone endorsed the decision, stating: "I think the CI (informant) is in grave danger.  I'm very concerned about his identity being found-out."

In the meantime, Pena was jury-convicted and Aceval's initial trial resulted in a hung-jury before Waterstone. Aceval's second trial ended when he pled guilty to possession of cocaine with the intent to deliver.  He was sentenced by Judge Vera Massey Jones to 10 to 15 years prison.

Aceval appealed his guilty plea conviction which was affirmed by the Michigan Supreme Court just last December.  Of note in the Supreme Court's decision, former Justice Maura Corrigan declined to take part in the case, indicating that she may be called as a character witness on Judge Waterstone's behalf.

The case against Waterstone, the prosecutor and the cops is being prosecuted by the Michigan Attorney General due to the obvious connections with the Wayne County Prosecutor's office.  Last Friday, more than twenty pre-trial evidentiary motions were argued before Judge Kenny in the lead-up to the trial, scheduled (firmly) for March.

This case impugns the very integrity of our criminal justice system.  The final result will not be clear until all the dust from the trial and subsequent appeals finally settles.

For our part, we will convey the significant developments in the case in this blog; stay tuned.

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Wednesday, February 9, 2011

Cooley Law School Ranks (Itself) 2nd in Nation, Behind Harvard

Good News!  Cooley Law School's latest law school ranking has just been published on its web site.  In a single year, they have improved from 12th to second best in the nation; only Harvard Law School remains ranked higher than Cooley according to the their own rankings.

Now, you've just got to stand back and take note of such bold and relentless devotion to self-promotion.  Simply refusing to allow reality to get in the way of its vision of excellence, Cooley actually announced its ever-higher ranking in a press-release on its web site.

Despite a firm national consensus that the law school dwels in the basement of the "4th Tier", Cooley believes it deserves top-flight status largely based on their collossal law library; one of the largest in the nation.  Nevermind that in our increasingly digitized world, actual bricks, mortar, and book volumes are rendered less-significant by the minute; think Borders.

This blog took note when Cooley drew serious national criticism by installing its good name on a minor league baseball park in Lansing; the former Oldsmobile Stadium.  That post received more comments than any other in this blog's two-year history.

A steady theme in the law-blogoshpere concerns the lack of employment prospects in the legal field after a six-figure student loan debt is incurred.  Along these lines, this blog questions the propriety of an educational institution that rakes-in premium tuition dollars on the promise of future employment, despite the absolute saturation and professional grid-lock among the already-minted lawyers in our service-based economy.

With its satelite campus system, and a jaw-dropping legion of graduates, Cooley is part of the "lawyers-gone-wild" problem in our nation.  This latest self-adulatory ranking is simply designed to entice ever-more eager but unsuspecting students into parting with a lot of dough for their shot at the American Dream; lawyer-style. 

In the opinion of this blogger, however, Cooley's self-rank is so disingenuous, it boarders on fraud.  Perhaps its time for the ABA to review this business model.  On the other hand, maybe Harvard Business School should do one of its famous case-studies on Cooley's undisputed financial success.

Post Script:  If you want to see how a federal judge views Cooley's BS self-ranking, take a look at Judge Quists' opinion, here.

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Saturday, February 5, 2011

Has Accused's Right to Effective Assistance of Counsel Been Expanded by SCOTUS?

Since 2009, I have served as a roster attorney for the Michigan Appellate Assigned Counsel System (MAACS). While a MAACS roster attorney hones his knowledge of the many facets of criminal law in the appeal context, most assignments involve assessment of yet another guilty plea appeal. No glory in that, to be sure.

Many of the guilty-plea appeals involve the Sixth Amendment issue of ineffective assistance of counsel. Often, youthful offenders claim they are forced by trial counsel to "take a deal" that they later regret. Rarely do these claims have merit. In almost every case, the Michigan Court of Appeals is not persuaded that the accused youth tendered anything but a knowing and voluntary guilty plea.

The mantra of the trial court taking the plea comes to mind: "Are you pleading guilty here today because you are guilty of this offense?"  The accused, sheepishly, states in the affirmative.

Last year, however, the SCOTUS decided Padilla v Kentucky. The case reversed the conviction of a legal immigrant on the basis of ineffective assistance of counsel where the accused was not properly and fully advised of the immigration consequences of his guilty plea.  Padilla was told not to worry about deportation because he had been in the country so long.

The Padilla case has drawn much attention among scholars of the criminal law; not for its immigration component, but for how it has expanded the scope of a lawyers duty to advise their clients of all the myriad consequences associated with their plea.

These consequences go far beyond the mere risk of incarceration and fines.  The potential "collateral" consequences could an individual's right to obtain a loan, obtain insurance benefits, bear arms, to vote, serve on a jury, serve as a foster parent, to participate in particular professions, terminate pension benefits, determine where a person can live, result in the loss of child custody, and in the case of sex crimes, doom the individual to a near lifetime of onerous registration requirements.  This is but a partial listing of the potential consequences.

Difficulties certainly arise for the lawyer facing her client's guilty plea.  The collateral consequences associated with the plea are often scattered across the Michigan Penal Code, and the federal statutes.

Defense counsel is often oblivious to this trap-laden universe.  The courts are wholly unconcerned with consequences to a plea that they do not impose.  For their part, prosecutors are not troubled with matters outside their direct control.

Add to this the fact that Michigan's court-appointed defense counsel advises the accused on nearly a pro-bono basis, and you have the makings for a constitutional catastrophe; or at least an imminent collision with the Padilla holding.

In the Internet-Age, as the number of people with criminal records have increased, so has the ability of employers, educators, lenders, and landlords to gain direct access to those records.  This makes obtaining legal advise as to the collateral consequences of a guilty plea all the more compelling.

Lawyers will have to be sharper than ever as they ambulate across the minefield of the criminal case.  Keep your eyes wide open has always been a trait of the best criminal defense attorneys.

Related story in Sunday NYT:  No sooner was this post uploaded when the Times published a story on the problem with monitoring people that once had the right to carry a weapon, but lost that right due to a felony conviction.

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Wednesday, February 2, 2011

Illinois Becomes 6th State to Recognize Same-Sex Civil Unions

Like neighboring Iowa, Illinois just passed a same-sex civil union law; the 6th state in the union (plus D.C.) to do so.  This law will likely be tested in court, as in other states passing such progressive legislation.

Like the same-sex marriage law floated in California, civil union statutes, once passed, usually have a rocky road.  In Maine like in California, for example, the same sex union become law via referendum, only to be subsequently invalidated by a court.

Invariably, there is a political price attached to this legislation.  No surprise, given such a polarizing issue that scholars have long-heralded as the next civil rights struggle in the USA.

Recently in Iowa, Lambda Legal sponsored litigation on behalf of gay couples, asserting that denying a marriage license on a same-sex basis violated the liberty and equal protection interests of the state constitution.  In April 2009, the Iowa Supreme Court ruled in favor of the same-sex couples; three of these justices were voted-off the court in the election last fall.  [Here's a powerful Iowan's clear view on the topic.]

A civil union is an intermediate legislative step toward the institutionalization of same-sex marriage.  In addition to the 6 states recognizing civil unions, another four states endorse "domestic partnerships", which provide broad rights for same-sex partners, but do not formalize the union.  Many gay couples do not avail themselves of such status, rejecting the compromise.

On the other hand, same-sex legislation has been rejected in more than 30 states. Some states, like Michigan, have amended their constitution to expressly limit the scope of marriage to the union of a man and woman.

Same-sex couples have long-sought benefits and rights enjoyed by conventional married couples such as health insurance coverage, tax breaks, even hospital visitation.  Like they did in Iowa, gay advocates often have the means to "put their money where their mouth is" in the form of expert lobby campaigns.

In the nearly two decades since the issue was first litigated in Hawaii, the same-sex movement has taken on religious as well as political tones. Nationally, the issue remains far too close to call.

As our common law tapestry continues to evolve, only time will tell whether this issue will achieve civil rights recognition and eventual institutionalization.

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