Wednesday, August 30, 2006

Drug Offenders Pay For Testing

Ohio’s House Bill 163, passed May 16th. and effective Oct. 12, 2006, authorizes courts sentencing drug offenders, or imposing disposition on juvenile defendants, to reimburse law enforcement agencies for the cost of tests determining whether substances were, in fact, of a controlled nature.

(LSC analysis)

Monday, August 28, 2006

You're Super! No, Really, the Greatest!

The ongoing turmoil about lawyer advertising and who is a Super Lawyer or BestLawyer in America ('s report on the New Jersey ethics activity) and who isn't is interesting to watch. As this piece in Friday's Columbus Business First (online Bizjournal) notes, there are a wide variety of lists, directories and other ranking guides. Cincinnati's own Bizjournal, the online version of the Cincinnnati Business Courier, is soliciting entries for its own 2006 Who's Who in Greater Cincinnati Law. Nominations are due Sept. 12, 2006.

Superlawyers has kicked into gear on their opposition to the New Jersey Supreme Court ethics panel decision, hosting their own blog at The Supreme Court has stayed the ethics opinion. So far, other states haven't joined in. Georgia's State Bar has indicated it hasn't had any complaints about Superlawyers, although they do monitor changes in advertising, according to

Want the latest on lawyer advertising? The American Bar Association's Center for Professional Responsibility keeps its fingers on that particular pulse.

Watch Your Metadata

Donna Payne, of Payne Group, does a nice wrap up of the issues relating to metadata (or "data about data", which can include author and version information as well as changes to contractual terms in the document you just created in Microsoft Word). Of particular interest are examples of how courts and others have failed to properly eliminate metadata before "publishing" a document. The American Bar Association's Legal Technology Resource Center (Catherine Reach, director) has some additional tips and suggestions (PDF) surrounding ethical use by lawyers of technology.

Tuesday, August 22, 2006

Power Plant Emission cases

The 7th. U.S. Court of Appeals sided with the Environmental Protection Agency last Thursday in a case centering around whether to permit power plants to emit increased levels of pollutants into the air after they’d been modernized to operate for longer hours. The EPA said “no,” since the company should have gone thru a prescribed federal permit process; the Court agreed. (U.S. v. Cinergy)

The 4th. Circuit, last year, decided a like case against EPA over disputed language in EPA power plant emission regulations. That case is now before the Supreme Court, with oral arguments scheduled for Nov. 1st.. (U.S. v. Duke Energy)

In June of last year, and again in March of this year, the District of Columbia Court of Appeals considered essentially the same matters, although maybe on a much broader scale, necessitating its being considered in two parts, in New York v. EPA. That case has been cited as clarifying and, in fact, was referenced in Cinergy above. (June decision; March follow-up)

Docket Sheet, Duke Energy Supreme Court case

Additional Information on EPA’s website (i.e., “Clean Air Act,” and “Air Pollution & Control”)

Friday, August 18, 2006

"Crawford" death penalty holding in Aryan Brotherhood trial

In what may be yet another landmark sentencing case, the U.S. District Court in Central California decided yesterday that the U.S. Supreme Court’s 2004 decision in Crawford v. Washington, in fact extended to sentencing hearings in federal death penalty cases, giving accused persons the “right of confrontation” at sentencing hearings as well as the actual trial level. (Article)

The trial in particular involves the two Aryan Brotherhood gangleaders in San Quentin convicted last month for some 32 murders & attempted murders over the course of 30 years in a prosecution said to be one of the largest death penalty cases in U.S. history.

U.S. v. Mills;Bingham, Case CR 02-938, U.S. District Court, Central California, decided Aug. 17, 2006

New Ohio DUI provisions

Ohio has new DUI provisions that went into effect yesterday. (SB 8)

Of significance is that the new provisions include modifications regarding the use of chemical test results as evidence in now providing that “in any criminal prosecution or juvenile proceeding… the court may admit evidence on the concentration of alcohol, drugs of abuse, controlled substances, metabolites of controlled substances, or combinations of any of them in the person’s whole blood, serum or plasma, breath, urine, or other bodily substance at the time of the alleged violation as shown by chemical analysis of the substance withdrawn within three hours of the time of the alleged violation (increased from two hours)..”

Here related is that “if an arresting officer requests a person under arrest … to submit to chemical tests, that person must (comply) within two hours of the time of the alleged violation, and if that person does not (comply) within that two-hour time limit, the failure to do so constitutes a refusal to submit and specifies that the three-hour time limit (described above) regarding the admission of evidence does not extend or affect this two-hour limit specified as the maximum period of time during which a person may consent to such chemical test or tests.”

Ohio Legislative Service analysis

NSA wiretapping verdict

The U.S. Eastern District Court in Michigan Thursday ruled that the federal government’s clandestine warrantless surveillance program initiated just days after the Sept. 11th. terrorist attacks violated the 1978 Foreign Intelligence Surveillance Act, and was therefore unconstitutional. (More)

The decision is being appealed.

ACLU v. NSA, Case 06-CV-10204, U.S. District Court, Eastern Michigan

Wednesday, August 09, 2006

New Ohio Rules of Professional Conduct

The Ohio Supreme Court on Aug. 1st. adopted new rules of professional conduct for lawyers, based on the American Bar Association’s model rules. They will be effective Feb. 1, 2007.

Among the changes are rules for enhanced client communication, requiring attorneys to inform clients, preferably in writing, of essential elements of their representation, including its nature, scope, and any limitations which may be present; more detailed record-keeping, including new requirements that specify the nature & content of financial records that have to be kept, a 7-year retention period on these records, and monthly reconciliations of the attorney’s records and bank account records.

There are also new rules regarding client confidentiality, new rules imposing specific obligations on lawyers with respects to prospective, former, and organizational clients, and those with diminished capacity.

(Supreme Court’s announcement)
(Full text version of new Rules of Professional Conduct)

Monday, August 07, 2006

2nd U.S. Circuit Court upholds "gut feeling" sentence

In March 2005, U.S. District Court judge for the western district of New York, David Larimer found Eric Jones guilty of possession of marijuana, and the possession of a firearm by a felon, and sentenced him to 15 months, concurrently, on the two charges based on his “gut feeling” about the defendant.

Larimer at the time “candidly acknowledged part of his thinking was not explainable..”

The Government didn’t feel the sentence or Larimer’s explanation were adequate, and appealed the case the first part of this year.

Chief Judge John Walker dissented from the 2nd. Circuit Court of Appeals’ decision last Wednesday, but it was held that Larimer’s oral statement of reasons for the sentence was adequate and the sentence reasonable, but that “the failure to include those reasons for sentencing in the judgment violated 18 USC § 3553 (c)(2) and requires correction..”


Friday, August 04, 2006

North Carolina passes "innocence commission" law

North Carolina has passed a law creating a “state innocence commission,”-- modeled after that in Great Britain, but being the first of its kind in the United States – through which inmates claiming to have been wrongly convicted & being able to produce new evidence a new venue of appeal. (Article)

An eight-member commission -- comprised of a superior court judge, prosecuting attorney, a victim advocate, a criminal defense lawyer, a sheriff, a member of the public, not an attorney or officer of the judicial department, and two other individuals “the vocations of whom shall be at the discretion of the Chief Justice”-- will begin accepting claims in November, and if five or more of those commission members agree that there is enough evidence to suggest an inmate’s innocence, the case will be sent to a panel of three Superior Court judges. All three of them would have to agree in overturning a conviction.

Additional information about “innocence commissions,” including the British counterpart and efforts by the Innocence Commission of Virgina project here in the U.S., is available on a site posting by the National Association of Criminal Defense Lawyers

Thursday, August 03, 2006

Woman on Ohio death row's sentence vacated

The Ohio Supreme Court yesterday vacated an initial sentence of death for 62-year old Donna Roberts, remanding the case back to its trial court for proper sentencing, finding no justification to reverse her conviction, but holding “that the trial court’s sentencing opinion supporting the death penalty was so grievously flawed that it cannot properly support the sentence imposed.” (State v. Roberts)

Roberts and Nathaniel Jackson were both found guilty of aggravated murder, robbery, and burglary in 2001. Jackson’s sentence was upheld earlier this year. (State v. Jackson)

Roberts is one of two women currently on death row in Ohio. Nicole Diar, found guilty of complicity to corrupt with drugs, murdering her four-year old son, tampering with evidence, arson, and felonious assault last year, is the other. She filed a notice of direct appeal on Dec. 2nd., which is now pending