Friday, October 28, 2005

Death Penalty issues

The bill seeking to reauthorize the USA Patriot Act has “little-noticed provisions that would dramatically transform the federal death penalty system, allowing smaller juries to decide on executions and giving federal prosecutors the ability to try again if a jury ends in deadlock on sentencing issues,” an article in Wednesday morning’s Washington Post reveals. (bill summary)

As the Supreme Court entered its new session this month, death penalty issues seemed to rank high on its agenda, according to media outlets.

Capital punishment for juveniles was ruled unconstitutional last March in Roper v. Simmons, and a bill seeking to abolish the death penalty altogether for Federal laws, introduced in January, is in the Senate Judiciary Committee. (More).

Addressing the ABA in August, Supreme Court Justice Stevens commented about concerns he had with respect to the death penalty & recent exonerations of death row inmates thru scientific evidence. Pending is House v. Bell, which addresses standards of proof for granting new hearings for capital defendants based on new DNA evidence

In 2002, the Supreme Court held in Ring v. Arizona that a jury, as opposed to a judge, has to make findings of “aggravating factors” where the death or a lesser penalty lies in the balance. Now, in Brown v. Sanders, the issue is revisited, being extended to determine whether a death sentence is improper when a jury had relied on aggravating factors later found invalid.

Two cases, Oregon v. Guzek and Kansas v. Marsh, are considering whether evidence questioning guilt can be presented at sentencing and whether the death sentence should be imposed when jurors find the arguments both for & against have equal weight.

Death row inmates don’t automatically have a right to a jury trial on claims that they’re mentally retarded and therefore can’t be executed. (See Schriro v. Smith)

The Court decided not to hear a case where the issue was whether a second jury should consider whether guilty parties should receive the death penalty or a lesser sentence.

Tuesday, October 25, 2005

Judicial Conference e-government rule amendments

The United States Judicial Conference has a set of proposed amendments posted to the federal rules of civil, criminal, appellate, and bankruptcy procedures, addressing privacy & security concerns surrounding public access to case filings electronically. ( amendment proposal draft )

The amendments implement portions of the 2002 E-Government Act, which requires federal courts to make filings available online while not sacrificing privacy or security concerns. (summary of act)

Comments on the rule amendments are due by Feb. 15, 2006, and can be made in writing or electronically.

There are public hearings scheduled on the civil rule amendments in Chicago on Nov. 18th. and Washington, D.C. on Dec. 2nd. Hearings on the appellate, bankruptcy, and criminal rule amendments are scheduled for Jan. 9, 2006 in Phoenix, Arizona. Requests to testify at a hearing have to be made to secretary of the standing committee at least 30 days prior to the hearing.

Monday, October 24, 2005

Federal Bankrupctcy Law "domestic support obligations"

With the effects of the 2005 federal bankruptcy reform being as widespread & encompassing as they are, an article in the Sept./Oct. Probate Law Journal of Ohio, which addresses changes in bankruptcy relative to family law, might be helpful to some.

The distinction between alimony, child support, and property settlement obligations have now been merged under a heading called “domestic support obligations,” which include “any obligation owed to or recoverable by, a spouse, former spouse or child of a debtor, child’s parent, legal guardian or responsible relative, or any governmental unit involved in the collection or enforcement of support obligations,” and it includes obligations incurred before or after the filing of a petition for bankruptcy. DSO obligations are also nondischargeable under Chapter 7 filings. ( summary of the priority child support provisions)

Also, the new law requires bankruptcy trustees, “if there is a claim for a domestic support obligation, to provide written notice to the holder of the claim and the applicable state child support enforcement agency.” (See DOJ “trustee program” post).

Monday, October 17, 2005

Research Tools is previewing a new homepage today, “designed to make it easier for both non-lawyers and legal professionals to find features most relevant to them.” (Link under masthead at right)

Also, Sabrina Pacifici at, last Friday, had a posting about the Federal Judiciary's having set up a new court locator map on its site, searchable by city & state, zip code, county & state, or area code.

Bankruptcy Abuse Prevention & Consumer Protection Act of 2005

The new federal bankruptcy law is just a little more than 12 hours old now, but as an article this morning on says, “although the effect on debtors has been well publicized… repercussions for attorneys and their practices are at least as dramatic .” We felt one more post perhaps prudent.

Bankruptcy attorneys will now be held personally liable for the accuracy of their clients’ petitions, the article states. “They will be required to advertise themselves as ‘debt relief agencies,’ be barred from telling clients pertinent information such as the fact that it’s legal to incur new debt on the eve of bankruptcy, and be required to give advice that some practitioners say is directly contrary to other sections of the Bankruptcy Code, potentially pitting their ethical obligations against their legal responsibilities.”

FindLaw has a special section on which articles designed to help in the understanding of the new law are posted, including a “checklist of key changes.”

Interim Rules, Official Forms, and additional information are available through our previous posting.

Thursday, October 06, 2005

Federal Bankruptcy Rules

The new 500-plus page Federal Bankruptcy law generally going into effect on Oct. 17th. did not allow sufficient time to formally promulgate formal rules of procedure. Courts are therefore being urged to adopt, and attorneys made aware of, Interim Bankruptcy Rules, which have been approved by the Advisory Committee on Bankruptcy Rules and the Committee on Rules of Practice & Procedure.

The Advisory Committee on Bankruptcy Rules met last week in Santa Fe to review the need for changes to the interim rules. It was decided that five additional amendments, and an amendment of an existing interim rule, be adopted by the Standing Committee and recommended to the courts prior to October 17. The recommendations were made on “the strong consensus that the changes could not await the normal Rules Enabling Act process, but were not subject to any significant controversy.” ( 28 USC §2075 specifically on bankruptcy )

Additional updates and information are available on the Federal Courts Rulemaking and Bankruptcy Court’s websites.