Friday, December 28, 2007

Google patent case

A PC World article, yesterday, summarized in some detail the Federal Circuit Court of Appeals decision in Hyperphase/Hyperphase Technologies v. Google on Wednesday.

Hyperphase Industries sued Google in April 2006, according to the article, alleging Google’s “AdSense” and “AutoLink” toolbar functions infringed on Hyperphase patents relating to contextual linking and presentation of information. The District Court for Western Wisconsin rejected those allegations, awarding summary judgment to Google in September 2006. Hyperphase appealed

The Federal Appeals Court, Wednesday, upheld parts of the summary judgment relating to “AdSense,” and some of the “AutoLink” claims, but overturned those parts dealing with AutoLink’s alleged infringement of two of the patent issues in remanding the case.

Company-paid health benefits cuts OK'd for retirees, spouses, over 65

The Equal Employment Opportunity Commission Wednesday said employers could reduce or eliminate health benefits for retirees, their spouses, or any dependents once the retiree hits 65 and becomes eligible for Medicare.
(See Final Rule)

AARP had filed suit in Eastern Pennsylvania District Court earlier this year trying to block the new rules. Losing both that and the subsequent appeal in June, AARP approached the Supreme Court back in September.

New York Times article

Thursday, December 27, 2007

Tennessee death penalty stays of execution

The Middle Tennessee U.S. District Court, , as have a number of others around the country, last Friday granted a stay of execution for Paul Dennis Reid pending the Supreme Court’s decision once hearing Baze v. Rees on Jan 7th.

The District Court earlier this year had declared the state’s execution protocol for lethal injection unconstitutional and enjoined it from executing Edward Jerome Harbison. The state is appealing that, but in the meantime, on October 31st., the Sixth Circuit has ordered that aspect held in abeyance pending the outcome in Baze.

The Court also stayed the execution of Pervis Payne on Dec. 7th., based on Harbison and pending Baze.

Also still pending, another lethal injection challenge in Ohio’s Southern District Court, is Cooey v. Taft., where two more death row inmates have petition for inclusion in that class action.

Tennessee Judicial “capital cases” webpage

Monday, December 24, 2007

Confrontation Rights at Sentencing

SCOTUS had an interesting post last week about the Justice Department urging Supreme Court justices to allow lower courts continue to explore whether to apply the Sixth Amendment right of confrontation to sentencing hearings—including those involving the death penalty.

Being discussed was Fields v. U.S (07-6395) and a reply brief filed Thursday opposing Fields’ case’s acceptance.

Fields’ appeal does not ask for the right of confrontation to be applied to all criminal sentencing instances, SCOTUS says, only those involving death sentences, seeking to test the scope of two previous Supreme Court rulings – the 1949 decision in Williams v. New York (holding that the confrontation clause does not apply at sentencing), and Crawford v. Washington in 2004, barring the use as evidence of testimonial statements that had not been subject to cross-examination.

The Government, in its brief, did not “forcefully dispute that a conflict existed among courts around the country concerning the applicability of confrontation rights at capital sentencing,” but opposed review by the Court because that conflict is not “sufficiently well developed to warrant intervention.” Reasoning here “for leaving the issue percolate in lower courts was that the Supreme Court’s 2002 ruling in Ring v. Arizona was said to be reshaping the issue of applying Sixth Amendment rights to death sentencing… requiring jurors to apply a reasonable doubt standard when it decides on the existence of a fact that would be necessary to make a murder defendant eligible for the death penalty.

Fields’ petition for certiorari (Sept. 4) and the brief in opposition (Dec. 13) are here.

Friday, December 21, 2007

"West Memphis Three" habeas corpus writ

In Spring 1993 three cub scouts were brutally murdered in West Memphis, Arkansas. Jason Baldwin, Damien Echols, and Jessie Misskelley, who were teenagers at the time, were arrested by police and found guilty of the crimes. Baldwin was sentenced to life imprisonment without parole. Misskelley got life in prison plus 40 years. Echols was sentenced to death.

The convictions have withstood numerous appeals, an AP article, yesterday, said – including the Arkansas Supreme Court in 1996 holding that there was “ ‘substantial evidence’ of guilt.” The U.S. Supreme Court turned down an appeal by Echols in 1997.

The case has long evoked skepticism, however, according to a CNN article early last month. Echols’ attorneys said that -- even with the level of DNA testing available in 1993-- there was no forensic evidence tying the three to the murders, and statements made by Misskelley – who’s “borderline retarded -- which played a significant role in their conviction has long been called into question.

Now there may be such evidence which, in fact, might clear the renowned “West Memphis Three.” A writ of habeas corpus filed in the Eastern District Court of Arkansas is being held in abeyance pending Echols’ further exhaustion of his state court remedies.

Taxation of Railroad Property

The Supreme Court, back on December 4th., decided that railroads could challenge state methods for determining the value of railroad property along with the manner in which those methods are applied, resolving a split in federal circuit court holdings as to whether a state’s property tax valuation methodologies could be challenged under the federal Railroad Revitalization & Regulatory Reform Act of 1976 (4-R Act)

An article in CCH’s State Tax Review on Dec. 13th. says “the 4-R Act, which bars states from discriminating against railroads when levying property taxes, provides an exception to the general rule of the Federal Tax Injunction Act that federal courts won’t interfere with matters of state taxation.

“In order to evaluate an assessment ratio under the 4-R Act, however, federal courts have to calculate the true market value of in-state railroad property, and that requires the court to ‘look behind’ a state’s choice of valuation methods, and preventing courts from scrutinizing methodologies would force them to accept the market value estimates of the state, a party to the litigation. States would then be free to use methodology that routinely overestimates market values of railroad property, perpetuating the discriminatory taxation of railroads Congress sought to eliminate.”

Monday, December 17, 2007

Death Penalty Updates

Last week New Jersey continued setting about to abolish the death penalty – now only awaiting the governor’s signature in a couple of days.

According to the Toledo Blade , New Jersey reinstated the death penalty in 1982, six years after Gregg v. Georgia. New Jersey’s supreme court affirmed the constitutionality of the death sentence in 1987, but didn’t uphold it until 1992. That case was subsequently overturned in federal court in 2005, however, and the inmate re-sentenced to life in prison, being eligible for parole in 2014. There hasn’t been an execution in New Jersey since 1963, either.

New Jersey has been one of several states having the death penalty, but some sort of moratorium halting executions. The Appellate Division of New Jersey’s Superior Court ruled in 2004 that the state’s department of corrections had to examine its lethal injection procedure before carrying out further executions

The U.S. Supreme Court’s hearing of Baze v. Rees has executions halted in Kentucky and for all intents everywhere else as well.

In Ohio, Lorain County Common Pleas Court Judge James Burge has two capital cases on hold while he conducts hearings on the manner in which this state administers lethal injections (Here), and Southern Ohio’s District Court is still entertaining intervenor motions in Cooey v. Taft, now with twenty petitioners.

“New Jersey’s abolition vote,” a Reuters article this morning says, “could be a small step in the direction of an eventual nationwide ban. But with capital punishment still on the books in 36 states, a conservative majority on the Supreme Court, and broad political support for putting the worst offenders to death, the road to abolition will be long.”

Wednesday, December 12, 2007

Indiana Local Government Reform

Indiana cities, townships & counties would be undergoing drastic reorganization & reform under 27 proposals from the governor’s Commission on Local Government Reform announced today.

Conceived of back in May, just after the close of this year’s session of the Indiana General Assembly, Governor Mitchell Daniels created the Commission in July to develop recommendations to reform and restructure local government in Indiana.

Its findings, in a nutshell, were that “for its size and population, Indiana has far too much local government.

Full Report

U.S. Sentencing Commission makes cocaine rule amendments retroactive

The United States Sentencing Commission unanimously voted to allow 19,500 federal prison inmates seek reductions in their crack cocaine sentences yesterday, making roughly 3, 800 persons eligible for release within a year after Tuesday’s March 3rd effective date for the decision. (Press Release)

A CNN/AP article commenting on the Supreme Court’s decision in Kimbrough v. U.S., Monday, however, commented that that decision “didn’t present the ultimate fairness question—That Congress wrote the harsher treatment for crack into a law that sets a mandatory minimum of five years in prison form trafficking in 5 grams of crack cocaine or 100 times as much powder cocaine….. With 70% of crack defendants getting the mandatory minimum.”

Neither the Supreme Court’s decision, Monday, nor the Sentencing Commission’s recent actions affect minimum sentences, which only Congress can change.

Tuesday, December 11, 2007

Supreme Court's Kimbrough/Gall Sentencing Guideline Decisions

Two significant cases were decided by the Supreme Court Monday, giving federal judges new authority to set sentences for crack cocaine crimes below federal guidelines in Kimbrough v. U.S., and impose sentences below specific guideline ranges while still having them be regarded as “reasonable.” in Gall v. U.S..

There are bound to be ripples.

The Court in Gall overturned an Eighth Circuit decision holding that below-Guidelines sentences were “reasonable” only if justified by “extraordinary circumstances,” professing the use of deferential abuse-of-discretion standards. “The Guidelines are the starting point,” the Court said, “but not the only consideration.” After both parties have argued their case for a particular sentence, the trial court judge should consider all factors, and make a decision based on the facts presented. If he decides on a sentence outside of Guideline ranges he has to consider the extent of departure from those ranges and explain his chosen sentence “to allow for meaningful appellate review and to promote the perception of fair sentencing.”

Kimbrough held that federal sentencing guidelines for cocaine convictions were advisory, rejecting a Fourth Circuit ruling that they were “effectively mandatory.”

Citing Booker, Rita v. U.S., and Gall, the Court in Kimbrough stated that “Booker rendered the Sentencing Guidelines advisory, but preserved a key role for the Sentencing Commission. In the ordinary case, the Commission’s recommendation of a sentencing range will ‘reflect a rough approximation of sentences that might achieve §3553(a) objectives’ [Rita, slip op. @ 11]… The sentencing judge, on the other hand, is ‘in a superior position to find facts and judge their import under §3553(a) in each particular case’ [Gall @ 13]

“Significant issues remain to be resolved,” a Legal Times article this morning noted, “including how much weight the guidelines must be given, as well as the retroactivity of the decisions to those sentenced under stricter standards.”

That, in part, would be up to the Sentencing Commission—which is meeting this afternoon. “As many as 20,000 convicted drug offenders could be released or have their sentences significantly reduced,” according to ABC News.

New Ohio Medicaid Agency

Ohio Governor Ted Strickland yesterday signed an executive order establishing the Executive Medicaid Management Administration as a central coordinating body to administer the state’s Medicaid program across the several agencies now involved.

“Federal law requires every state to appoint one agency to be responsible for applying for Medicaid grants or waivers, administering and/or amending that state’s plan, and ensuring that activities such as claim processing are conducted properly,” the order says. “Traditionally, the Department of Job & Family Services has fulfilled that responsibility and will continue to serve as the single state Medicaid agency.”

More Here

Thursday, December 06, 2007

2006 Prison/ Probation & Parole Reports

The Justice Department’s latest prison statistics report was released yesterday, indicating that 3.2% of the U.S. adult population – something like seven million men and women, or 1 in every 31 persons in the country – were in prison, jail, on probation, or out on parole by the end of 2006; an increase of 159,500 over the year.

Prison populations grew at a faster rate in 2006 than in five previous years , although the rate in Federal prisons slowed a bit, while it increased proportionately in state institutions. An increase of 5,428 prisoners (2.9%) was seen under federal jurisdiction in 2006, as opposed to 5.8% between 2000 and 2005, according to the report, while the increase of 37,504 inmates (2.8%), represented an increase of 1.5% over the same five year period.

A report on probation & parole in the U.S. was also released, showing 5, 035, 225 men and women in the U.S. on probation or parole in 2006, an increase of 87, 852 or 1.8%

798, 202 persons were on mandatory conditional release. That was an increase of 2.3%.

Reports are part of the Department of Justice’s series, a list of which can be accessed (Here )

“Prisoners in 2005
Probation & Parole in the U.S. (2005)”

Wednesday, December 05, 2007

Right-to-Counsel Supreme Court Case

As far back as 1932 the Supreme Court had been recognizing a defendant’s right to counsel as “essential to the safeguarding of American freedoms,” leaving the extent of that, however, to the individual states. (Here)

In 1963, Gideon v. Wainwright held that “no one, regardless of wealth, education or class, should be charged with a crime and then forced to face his accusers in court without the guidance of counsel.”
We sidebar here, demitting & referring the reader to Wikipedia’s excellent summary as to differences in state and federal viewpoints of the right to counsel and waivers of that right.

On Monday, the Supreme Court announced it would undertake to further clarify when a suspect taken into custody by police has a right to a lawyer. The question is whether that right sets in when an individual has been taken before a magistrate, who finds reason to believe a crime has been committed, or whether it only attaches when a prosecutor prepares or makes a charge. [ Rothgery v. Gillespie County (Texas) 07-440],

The Fifth Circuit Court of Appeals, last June, had approached the subject based on late-’70 and early-‘80 precedents holding that “the right to counsel does not attach in Texas when a defendant appears before a magistrate for statutory warnings if prosecutors are unaware of and uninvolved in the arrest & appearance.” (i.e. Kirby v. Illinois)

The petitioner’s writ of certiorari also refers to late ‘70s law, citing Brewer v. Williams, which had quoted Kirby, but stated that “there can be no doubt... that judicial proceedings have been initiated and the Sixth Amendment right to counsel had attached when a defendant was arrested, made an initial appearance before a court, and was committed by the court to confinement in jail pending trial.”

Rothgery’s petition for writ of certiorari
Fifth Circuit Appeal
District Court’s Opinion

Alleged Accessory Denied Change of Venue in Knoxville Murder Trial

A Knoxville, Tennessee attorney, who had described his client’s case as “one of the most heavily publicized & misreported cases in recent local East Tennessee history,” was denied a change of venue last Saturday. ( Here )

Eric Boyd’s attorney referred to the Internet as “the largest unregulated source of information” – spreading lies and helping create an urban legend surrounding the details of the final state of the victims’ bodies—meant to outrage and taint any jury pool” last month, stating that “literally thousands and thousands of internet blogs & news accounts have been published about the case, both partially factual and fictional.”

Part of his inference, though, is that his client isn’t directly involved in the case drawing all of the attention, but will be colored because of it. (Motion)

An article on, yesterday, said George Washington University Law School professor Stephen Saltzburg, who chairs the ABA’s Criminal Justice Section, called the case the first time he’d heard of blogs being cited in a change of venue motion, and doubted that postings added much volume to the pervasive television & newspaper coverage surrounding sensational criminal cases. “They’re just another form of communication,” he said. “Courts have examined prospective jurors as to what they have read or heard about a case. Now the inquiry will be not only about newspapers, magazines, TV and radio, but Internet communications and e-mail.

The district court in fact found the motion premature, and said it would be preferential to “properly question potential jurors to determine the extent of the ‘veniremen’s exposure to the publicity and the effect it has had on them.”