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Monthly Archives: June 2009

Monday status conference: Confronting the Confrontation Clause

As the end of the term nears, the U.S. Supreme Court is set to deliver more opinions this morning. The longest outstanding remaining case could have a wide impact on prosecutors across the country: Melendez-Diaz v. Massachusetts.

In that case, the Court is considering whether state forensic lab reports prepared for use in criminal cases are testimonial evidence subject to the demands of the Confrontation Clause.

The defendant in the case argues that they are indeed and that as a result, prosecutors are required to call lab analysts to testify at trial during their case-in-chief. But the state argues otherwise, noting that prosecutors frequently rely on such reports in drunk-driving, fingerprint, DNA, drug and firearm trials.

Whatever opinions the Court releases today, we’ll bring you updates on this blog and at Lawyers USA online.


No longer in the club: Fighting critics claim questions about bias, Supreme Court nominee Sonia Sotomayor resigned her membership in a women-only group Friday. (WSJ)

Change for a bill: President Obama is acknowledging that he has failed to live up to one campaign promise: always waiting at least 5 days before signing any legislation in order to allow for public input. So far, Obama has rarely waited that long. (NYT)

Just impeachy: The House voted overwhelmingly to impeach imprisoned Texas federal District Judge Samuel Kent. A trial is expected soon. (ABA Journal)

Tobacco lobbyists spent far less cash fighting

Holder: Supreme Court DNA decision is ‘limited’

After yesterday’s Supreme Court ruling that convicts don’t have a constitutional right to access post-conviction DNA evidence, Attorney General Eric Holder issued a statement saying that the ruling won’t foreclose DNA evidence examinations of prisoners.

“[The] decision is limited: the Court merely spoke about what is constitutional, not what is good policy.  And there is a fundamental difference,” Holder said in the statement.  “Constitutional rights are only one part of a fair and full system of justice.  Simply because a course of action is constitutional does not make it wise.”

Noting that the opinion itself speaks to the “unparalleled ability” of DNA evidence “both to exonerate the wrongly convicted and to identify the guilty,” Holder said post-conviction DNA analysis will continued to be a part of DOJ policy.

“[T]his administration believes that defendants should be permitted access to DNA evidence in a range of circumstances,” Holder’s statement said. “Today’s decision reaffirmed the power of such practices, and I hope that in light of today’s decision all levels of government will follow the federal government’s lead by working to expand access to DNA evidence.”

Friday morning docket: And then there were 10

With just days left now before the Supreme Court wraps up its terms for the summer – and one justice wraps up his high court career – there are only 10 cases left to be decided. Yesterday the Court released four opinions, but it was the ruling that a prisoner does not have a constitutional right to access DNA evidence post-conviction that set the blogosphere and the Twitter world afire.  More from Lawyers USA on yesterday’s Supreme Court decision in Osborne here. Also we have a report on Gross here, the case that makes age discrimination decisions tougher to prove in some cases. The AP has a report on the Court’s Travelers opinion here, and Bloomberg News has more on the Yeager decision here. More opinions from the Court are expected Monday.


Partnership benefit: Same-sex partners of federal employees will get some new benefits, such as long-term care insurance and recognition for purposes of family and medical leave, under a memorandum signed by President Obama. (Lawyers USA)

New disability rules: The U.S. Equal Employment Opportunity Commission has voted to adopt revisions to its regulations to conform with the ADA Amendments Act of 2008. (Lawyers USA)

Secret discoveries: Lawmakers and members of various interest groups debated a bill earlier this month that would bar courts from keeping corporations’ information secret during discovery. (Lawyers USA)

Going way back: It seems there is not a stone in Judge Sonia Sotomayor’s life that hasn’t been unturned. The New York Times takes a look at her tenure as a board member of the State of New York Mortgage Agency where, they said, she focused on the interests of the poor. (NYT)

Four-letter evidence. Jurors in the trial of former Rep. William Jefferson got an earful yesterday. A profanity-laced call made by the embattled lawmaker was played. (BLT)

High court nixes ‘mixed-motive’ age bias claims

The U.S. Supreme Court this morning ruled that plaintiffs cannot bring mixed-motive age discrimination suits under the ADEA.

In Gross v. FBL Financial Services, the Court held that a plaintiff bringing an ADEA disparate-treatment claim must prove, by a preponderance of the evidence, that age was the “but-for” cause of the challenged adverse employment action. The 5-4 opinion authored by Justice Clarence Thomas further held that the burden of persuasion does not shift to the employer to show that it would have taken the action regardless of age, even when a plaintiff has produced some evidence that age was one motivating factor in that decision. Justices John Paul Stevens, Ruth Bader Ginsburg, Stephen Breyer and David Souter wrote or joined dissents.

In another 5-4 ruling split down the Court’s ideological lines, District Attorney’s Office v. Osborne, the Court held that a convict has no constitutional right to obtain post-conviction access to the state’s evidence for DNA testing. Chief Justice John G. Roberts, Jr. authored the majority’s opinion.

In a third ruling, Yeager v. United States, the Court held that a former Enron official who was acquitted of securities and wire fraud charges cannot be retried for insider trading or money laundering – charges on which the jury originally hung – without violating the Double Jeopardy Clause. Retrial is prohibited because of the common elements of the charges for which he was acquitted.

The Court also issued a narrow, fact-specific ruling the bankruptcy court jurisdiction case Travelers Indemnity Co. v. Bailey.

Much more to come on the Gross and Osborne rulings on this blog and on Lawyers USA Online.

SCOTUS rulings at 10am

As the U.S. Supreme Court’s term inches even closer to the history books, the Court will begin the late-in-the-term tradition of releasing some opinions on Thursdays before its regularly-scheduled private conference – beginning today.

There are 14 cases remaining on the docket, including some of great interest to civil and criminal trial attorneys including:

Melendez-Diaz v. Massachusetts, which considers whether state forensic lab reports prepared for use in criminal cases are testimonial evidence subject to the demands of the Confrontation Clause;

District Attorney’s Office v. Osborne, which will determine whether convicts have a right constitutional right to post-conviction access DNA evidence in their cases;

Ricci v. DeStefano, which considers whether an employment action meant to prevent minorities from being denied promotions can itself be discriminatory;

Gross v. FBL Financial Services, which involves the burdens of proof the plaintiff and defendant face in age discrimination cases and the kind of evidence parties must present to win in mixed-motive age discrimination cases;

Safford Unified School District v. Redding which asks when an invasive school drug search is reasonable; and

Forest Grove School District v. T.A. where the Court will finally rule on whether the Individuals with Disabilities Education Act allows parents to seek private school tuition reimbursement for a child who never received special education services from his school district.

Updates to come on this blog and on Lawyers USA Online.

Consumer group takes auto bailout anger to the airwaves

A consumer group outraged over the Chrysler and General Motors bankruptcy deals it says will strip consumers of protections against defective vehicles is taking its message to the airwaves and internet.

The Ad Hoc Committee of Consumer Victims of GM & Chrysler today launched a television and online ad campaign aimed at urging President Barack Obama and Congress to amend the bankruptcy deals in order to allow products liability suits to go forward against the newly organized auto companies.

This move comes after another group of consumer and legal advocacy groups sent a letter to Obama urging him to halt the Chrysler and GM bankruptcy plans. Plaintiffs’ attorneys have also lambasted the plans, saying it leaves car owners without adequate rights and protections.

The new ad will air on television stations in Washington, DC and online on the group’s website.

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Fed judges: We need a bankruptcy bailout too

No, the Judicial Conference of the United States isn’t filing Chapter 13. But the federal judiciary group does want more bankruptcy judges in order to ease the strain from a deluge of bankruptcy filings during the nation’s economic crisis.

The group told lawmakers that 13 more bankruptcy judges are needed to try to get ahead of the bankruptcy backlog.

“Our judicial resources are strained. And the cost to society of an overburdened bankruptcy system, especially in this economic climate, is enormous,” said conference representative and U.S. District Judge Barbara Lynn to the House Judiciary Subcommittee on Commercial and Administrative Law.

According to ABA Journal, the conference wants 13 additional permanent bankruptcy judges in 10 judicial districts. It also wants to convert 22 temporary bankruptcy judgeships that already exist in 15 judicial districts to permanent positions. Two other existing temporary bankruptcy judge jobs would be extended for another five years under the conference’s plan.

There are currently 324 bankruptcy judgships nationwide, reports Reuters.

When Obama talks med-mal reform, Dems and AAJ don’t listen

For at least the second time since taking office, President Barack Obama has medical malpractice litigation reform could be a part of his overall plan for reforming the nation’s health system.

In March, Obama told members of the business community that reducing med-mal lawsuits is something that has to be considered. “Medical liability issues – I think all those things have to be on the table,” Obama said then.

Now, after meeting with members of the American Medical Association who pressed the idea last month, Obama is again receptive to the idea – so respective that he has begun making the case to lawmakers, although few Democrats are biting, according to The New York Times. The president hopes that including medical lawsuit reform in the mix would keep GOP lawmakers and doctors groups at the table, which is necessary to build a broad consensus on health care reform.

But trial attorneys don’t seem to like the idea one bit.

“According to the Institute of Medicine, 98,000 people die every year because of medical errors. Eliminating these errors, not further hurting the victims of negligence, is where lawmakers should focus their attention,” said American Association for Justice President Les Weisbrod. “By taking away the rights of people to hold wrongdoers accountable, the quality of health care will suffer tremendously.”

Weisbrod said the president’s focus should be on insuring Americans and implementing empirically-based practice guidelines to raise the standard of care and better protect patients.

“Limiting the legal rights of injured patients will do nothing to lower health care costs or aid the uninsured,” Weisbrod. “We will work over the coming weeks and months to educate members of Congress and the administration on how to best protect victims of medical negligence.”

SCOTUS rules in deportation, port tax cases

Today the U.S. Supreme Court held that a conviction for bank fraud can constitute an “aggravated felony” under a federal immigration law which carries the penalty of deportation.

The ruling in Nijhawan v. Holder was one of two opinions issued by the court today.

In today’s other opinion, Polar Tankers, Inc. v. City of Valdez, the Court invalidated a tax imposed on cargo ships that used a municipal port. More on the Nihawan decision later on Lawyers USA Online.

The Court also added four cases to its docket for next term. The new issues the Court has agreed to consider include whether a bankruptcy filer must show undue hardship before he or she may discharge student loan debt, and whether a court may certify a class action in a case where parties have agreed to arbitration. More on the cert grants here from SCOTUSBlog, and more to come later on Lawyers USA Online.

Monday status conference: Tobacco regs and SCOTUS ops

As the U.S. Supreme Court prepares to unofficially wrap up its term at the end of this month, the justices are set to release some of the term’s remaining opinions this morning. Issues still yet to be decided include whether a state forensic analyst’s laboratory report prepared for use in a criminal prosecution is “testimonial” evidence subject to the demands of the Confrontation Clause, and whether convicts have a right to post-conviction access to DNA evidence.

And lawmakers continue to ponder the Supreme Court nomination of Sonia Sotomayor. Senate Republican leader Mitch McConnell, saying it’s still to early to know just how her confirmation will play out, didn’t rule out the possibility of blocking her with a filibuster.


No if ands or butts: The Senate has passed a bill that would allow the Food and Drug Administration to regulate tobacco products, clearing the way for it to head to President Barack Obama’s desk. (Lawyers USA) Obama can’t wait to sign it. (AP)

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Sister justice: Among those who are pretty psyched about the nomination of Sonia Sotomayor to the high court: Justice Ruth Bader Ginsburg. (BLT)

That was fast: The U.S. Justice Department has moved to dismiss the first gay marriage case filed in federal court, saying it is not the right venue to tackle legal questions raised by a couple already married in California. (AP)

Rising bankruptcies: Bankruptcy filings for the 12-month period ending March 31, 2009, were up 33.3 percent over the same time period last year, according to statistics released Monday by the Administrative Office of the U.S. Courts. (Lawyers USA)