New York Facebook privacy questions

To go along with our post yesterday about Twitter account ownership, MSN Business this morning’s reporting a New York appeals court’s determining there are limits to how much proof of employee shenanigans a business can legally gather from sites like Facebook.

In this instance a New York appeals court determined last October (decision) that there were limits to how much proof of employee shenanigans a business could legally gather from social media utilities such as Facebook. The Appellate Division of the New York Supreme Court ruled that commercial builder Turner Construction Co. should not have a free hand in searching the Facebook activity of an employee who was seeking compensation in a personal injury suit against the company. The company was attempting to use information from the employee's Facebook account to show that he was not being truthful about the extent of his injuries.

“Though disparate in the level to which social media activities are admissible as evidence in a legal proceeding,” MSN’s article notes, “one thing that's for sure is that social media utilities and what we post on them have wide implications. Specifically, these cases point to the emerging role social media utilities are taking in regard to civil suits, with some courts granting greater access to what was once considered private information on a social media site.

“And if you need more of a reason to pay attention to cases that involve social media, keep in mind that civil law is established through court precedents — that is, previous court decisions like those mentioned above. So don't think for a moment that rulings in faraway states won't impact your case in California or Illinois or wherever it is you do business…”

Who owns company Twitter account?

“Who, exactly, owns your Twitter account?” a CNN.com article this morning asks, stating that “It's a potentially complicated question when an account is used both professionally and personally.

Now there’s a California case concerning whether a Twitter account belongs to a company or a former employee that CNN says “may blaze new trails in social media law.”

PhoneDog, a website devoted to all things mobile products and services, filed suit against former employee Noah Kravitz in California Northern District Court for $340,000 last July, alleging Kravitz' continued use of the Twitter account he was "given use of" while employed with PhoneDog after his leaving was a misappropriation of trade secrets and damaged the company's business, goodwill, and reputation.

Kravitz' motion to dismiss because of lack of subject matter jurisdiction and failure to state a claim have up to this point been denied and denied in part, granted in part, respectively. ( Order )

Calls for Public Banking

Spurred by the recession, bank bailouts and the difficulty consumers are having getting loans, a USAToday.com article this morning says, members of the “Occupy movement” and others are stepping up calls for a public banking option similar to the one that’s been in North Dakota since just after the turn of the century.

North Dakota currently has the nation's only state-run bank, enacting its model in 1919. Supporters point out that the state is also the only one to have had a budget surplus since the economic crisis began, and an unemployment rate below 4%. All state agencies deposit their funds in the Bank which then uses that money to support economic development, make student loans and partner with community banks to make small-business and farm loans. Deposits are backed not by the FDIC, but by the state, USAToday reports.

The Public Banking Institute, a non-profit group formed last January to advocate for public banking, reported 14 states have considered legislation to either create some form of a state-run bank or study whether it is feasible. Illinois HB 2064 is one of those bills, but none of our local tri-states are among that group.

Amicus brief supporting FDA warning labels

University of Pittsburgh’s Jurist Paper Chase last Friday reported Attorney Generals from 24 states & U.S. territories -- Alaska, Arizona, Arkansas, California, Connecticut, the District of Columbia, Hawaii, Idaho, Illinois, Iowa, Maine, Maryland, Mississippi, Montana, New Hampshire, New Mexico, Ohio, Rhode Island, South Dakota, Utah, Vermont, the Virgin Islands, Washington and West Virginia-- filed an amicus brief in support of the FDA’s appeal of the U.S. Court of Appeals for the District of Columbia Circuit’s blocking the implementation of new FDA requirements mandating that all cigarette packages would have graphic warnings detailing the dangers of tobacco use back in November.

Jurist recounted that President Obama had signed the Family Smoking Prevention and Tobacco Control Act (FSPTCA) [HR 1256 text] in 2009, with the Food & Drug Administration (FDA) then mandating that by September 2012 all cigarette packaging contain new warning labels with graphic images of the health issues related to smoking and related textual warnings. A suit filed by the R.J. Reynolds Co. requested an injunction [ complaint ] on the basis that the new regulations violated their First Amendment rights and burdened their right to commercial speech by compelling placement of the new warning labels on the top 50 and bottom 20 percent of all packaging & advertisements. The District of Columbia Circuit agreed.

Applications for Ohio Southern District indigent defense attorneys

The Ohio Southern District Court, pursuant to its Criminal Justice Act Plan, has begun soliciting applications from those wishing to serve as appointed counsels for indigent criminal defendants under the 18 U.S.C. §3006A for the Dayton and Cincinnati areas.

Applicants must complete the application form found on the Court’s website, by contacting the Clerk of Court by mail to:

“Clerk, U.S. District Court ,Federal Building ,Room 712, 200 West Second Street, Dayton, Ohio 45402” or telephoning (937)-512-1400 in Dayton, or “Clerk, U.S. District Court, 100 E. Fifth Street, Room 103, Cincinnati, Ohio 45202” or telephoning (513) 564-7500 in Cincinnati.

Existing panel members must complete an application if they wish to be considered for continued membership in the CJA Panel, and continued membership is not guaranteed.
(Court’s announcement)

Ohio Innocence Project wins man's release

Cincinnati.com articles last week reported on the release of Roger Dean Gillispie, a Dayton-area man who spent two decades in prison for rapes that U.C. “Innocence Project” law students and others believe he did not commit.

U.S. District Court Magistrate Judge Michael Merz, on Dec. 15th. found Gillespie’s habeas corpus “meritorious,” ordering his release from custody unless retried & convicted by July 1, 2012. That was slightly modified yesterday in response to the State’s appealing the decision, by the Court’s “recognizing that Fed. R. App.P. 23(c) creates a presumption in favor of release pending appeal of a successful application for the writ, but that the presumption must be balanced against “the factors traditionally considered in deciding whether to stay a judgment in a civil case.” Gillispie’s release is conditional, pending the Sixth Circuit appeal and any subsequent review by the U.S. Supreme Court, and his remaining within the Southern District of Ohio on electronically monitored home detention.

( Court’s order )

Ohio Supreme Court holds trial court can't modify own final judgment

Ohio’s supreme court on Dec.22, held that, unless authorized by a specific statutory provision, a trial court generally does not have authority to modify its own final judgment that imposes a criminal sentence.

The Court summarized that “Jack Carlisle of Cleveland had been convicted by a jury of charges in connection with a sexual assault on his 6-year old foster daughter & sentenced to prison terms of three years for kidnapping and one year for gross sexual imposition, with those terms to be served concurrently. The trial court then stayed execution of Carlisle’s sentence and allowed him to remain free on bond while he appealed his convictions.

“The 8th District Court of Appeals affirmed Carlisle’s conviction, revoked his bail, and issued a special mandate (directive) ordering the trial court to proceed with execution of its sentence. But before the trial court acted on the court of appeals’ mandate, however, Carlisle filed a motion asking the trial judge to reconsider and modify his sentence. Asserting it retained authority to modify his sentence until it was executed by delivering him to prison, Carlisle advised the trial court that health conditions from which he had suffered at the time of his trial were chronic and life-threatening, requiring ongoing treatment, including kidney dialysis three times a week, that would have to be paid for by the state if he was sent to prison.

“In addition to challenging the trial court’s authority to modify Carlisle’s sentence in the first instance, the state acknowledged the significant medical expenses associated with Carlisle’s incarceration but represented that it was willing to bear the costs in light of the seriousness of the offense. The state also argued that Carlisle’s medical problems did not prevent him from committing the offenses and, therefore, incarceration was necessary to protect the community.

“The trial court agreed with Carlisle that it retained authority to modify his sentence, and, taking note of the state’s recent budget cuts and the ‘astronomical’ costs the state would incur for Carlisle’s medical treatment, and finding that Carlisle posed no threat to the community, vacated its original sentence and resentenced Carlisle to five years of community control based on ‘a change of circumstances.’

“The state appealed resentencing, arguing that the trial court had acted without legal authority in reconsidering and modifying its original judgment order in the case, which included the sentence.

State v. Carlisle, Slip Opinion No. 2011-Ohio-6553

Ohio Supreme Court Law Library catalog application

The Ohio Supreme Court yesterday announced that its law library back on Dec. 6 activated a software application by which the public will now be able to access its catalog with on iPhone and iPad devices.

Mobile access can now be acquire by downloading the free mobile app, BookMyne, and then searching “Ohio Supreme Court.”

The application currently now only works on iPhones, iPads, and iPods, but Ken Kozlowski, the Supreme Court of Ohio’s Law Library director, said it is expected be available for Androids in 2012.

With a collection of nearly a half-million volumes, the Law Library is one of the largest state supreme court law libraries in the nation. In addition to providing library services to the Justices and Supreme Court staff, the Law Library also serves the state legislature, state administrative agencies, attorneys, and is the primary law library for all state agencies located in Columbus. It is also open and available to the general public, providing a full range of services to all patrons, although registration is there required.

The catalog application can be downloaded via iTunes here or thru the Library’s website here.

Ohio Supreme Court upholds death sentence for murder of Cincinnati 3-Year-Old

Ohio's supreme court has upheld the convictions and death sentence of one Lamont Hunter of Cincinnati for the 2006 rape and aggravated murder of his girlfriend's three-year-old son.

Hunter was indicted on charges of child endangerment, rape and aggravated murder with the death penalty specifications that 1) he killed the toddler in the course of committing a violent felony (rape), and 2) purposely caused the death of a child under the age of 13, the Court summarized. He entered not guilty pleas on all charges and specifications. Shortly before his trial was scheduled to begin, He hired Cincinnati attorney Clyde Bennett II to replace the two attorneys who had been appointed by the court to represent him.

Hunter subsequently waived a jury trial in favor of a trial before a three-judge panel. The court returned guilty verdicts on all charges. Following consideration of aggravating and mitigating factors during the penalty phase of the trial, the panel concluded that the aggravating factors outweighed the mitigating factors and sentenced Hunter to death on the aggravated murder charge. The court also imposed a life sentence on the rape count and eight years imprisonment on the child endangering count. Hunter’s convictions and death sentence were subject to automatic review by the Supreme Court.

State v. Hunter, Slip Opinion No. 2011-Ohio-6524

Ohio Supreme Court "limited liability" language usage

The Ohio Supreme Court this morning reported it has adopted amendments to its Government of the Bar of Ohio & Rules of Professional Conduct changing references to “partnership having limited liability” and “registered partnership” to “limited liability partnership,” effective Jan. 1, 2012.

Rules affected are Rule III, Sections 1-4, and Rule VI, Section 1, of the Rules for the Government of the Bar and Rule 1.4, Comment [8], and Rule 7.5(a) of the Ohio Rules of Professional Conduct.

The changes act to conform Supreme Court Rules to the language used in the updated Ohio Revised Code chapter and statutory references to the Ohio Uniform Partnership Act back in 2008.


View the complete text of the amendments.

Notices to Hamilton County Lawyers

As of January 1, 2012, the Hamilton County Court of Common Pleas Assignment Commissioner’s Office will no longer send post-cards to counsel with future court dates via U.S. Mail. All attorneys must register for e-mail notifications to receive future court dates via the form posted on the Court’s website under the “forms” icon or downloaded here.

also

Beginning January 3, 2012, in accordance with the newly revised Local Rules 10, 11, and 34 of the Hamilton County Rules of Civil Procedure, the Court of Common Pleas will require most civil suits to be
filed electronically with the Clerk of Courts. This requirement applies to all cases in which a case number
beginning with “A” is assigned.

Prior to filing electronically, attorneys may get information & register by logging on to http://www.courtclerk.org/efiling.asp Attorneys should register now at the Clerk’s website to prepare for the January 3rd. deadline.

Kentucky indigent defense representation

The Kentucky Bar Association’s Board of Governors unanimously adopted a resolution at its November 18th meeting endorsing findings and recommendations that call for Gov. Steven L. Beshear and the Kentucky General Assembly to immediately address and improve the system for the representation of indigents in conflict cases. (See “Report of Kentucky Bar Association Task Force on Provision & Compensation of Conflict Counsel for Indigents” attached to resolution)

The nine recommendations relate to the funding and structure of the system, their press release stated, including allocation of an additional $5.2 million to implement changes that will bring the system into compliance with the ethical and constitutional requirements of the Kentucky Supreme Court and with the professional standards set out by the American Bar Association.

Southern District of Indiana civil rule amendments

Indiana’s Southern District Court is entertaining its period for public comment thru December 15 of all Local Civil Rules of Court which, if adopted, will be effective Jan. 1, 2012.

Proposed amendments are available on the court's website here

Comments should be sent to:

Local Rule Comments
Office of the Clerk
105 U.S. Courthouse
46 East Ohio Street
Indianapolis, IN 46204

or via email to:LocalRules@insd.uscourts.gov

Federal Rule amendments

The U.S. Judicial Conference has a reminder posted that a number of amendments to the Federal Rules of Appellate, Bankruptcy, Criminal Procedure, and Evidence took effect December 1, 2011.

Congress took no action after the changes were approved by Supreme Court more than seven months earlier, allowing those amendments to these rules to now go in effect:

• Appellate Rules 4 and 40
• Bankruptcy Rules 2003, 2019, 3001, 4004, and 6003.
• Criminal Rules 1, 3, 4, 6, 9, 32, 40, 41, 43, and 49.
• Evidence Rules 101-1103

Additionally, new Bankruptcy Rules 1004.2 and 3002.1 are in effect, as well as new Criminal Rule 4.1.
More information available at their website here

New Illinois Circuit Court civil jury instructions

The Illinois Supreme Court's Committee on Jury Instructions in Civil Cases announced four revisions today:

105.01 Professional Negligence - Duty
3.03 Insurance/Benefits
3.08 Opinion Testimony
60.01 Violation of Statute, Ordinance or Administrative Regulation

Note is made that “while Illinois Supreme Court Rule 239(a) prescribes the use of Illinois Pattern Jury Instructions, an instruction is approved or rejected only after it has been judicially questioned and considered. [Powers v. Illinois Central Gulf Railroad Company, 91 Ill. 2d 375 (1982)]

A complete listing of recent civil & criminal jury instructions are posted by the Court here and here.

Supreme Court updates

Playing “catch-up” again, we’ve come across three cases before the Supreme Court we feel important.

The first is Setser v. United States, which was heard on Nov.30th. -- the Court here considering whether a federal judge may impose a sentence and direct that it be served consecutively to, or concurrently with, a term of imprisonment that is expected to be – but has not yet been – imposed in a state court for a state crime.

ScotusBlog recapped Petitioner Monroe Setser’s “having been on probation for a state drug crime when he was arrested for possessing (more) methamphetamine. That drug possession violated both federal and Texas state law. He was tried first for the federal offense and was convicted. The federal judge imposing the sentence knew that Setser was likely to receive a state sentence for the same conduct, and was also likely to have his probation revoked. The judge accordingly directed that the federal sentence would be served consecutively to any sentence imposed as a result of the probation revocation, but concurrently with any state sentence imposed for the drug possession. The question before the Court was whether the judge had the power to issue such a directive…”

The 5th. Circuit’s appeal opinion is here; Setser's petition for certiorari here; and the Brief in Opposition here. ScotusBlog posts an argument transcript here.

Martel v. Clair and Williams v. Illinois were heard by the Court yesterday – Martel being the topic of yesterday’s posting. Transcript to that case may be read here.

Williams v. Illinois, ScotusBlog referred to last Monday as “the next in the line of cases involving the Court’s more defendant-friendly interpretation of the Confrontation Clause. The question being whether the Confrontation Clause is violated if an expert testifies about the results of testing conducted by a non-testifying third party, if the report itself is not introduced at trial.

“Here, an expert testified about the results of a DNA test conducted by an analyst, but the DNA test was not admitted. The Supreme Court of Illinois held that there was no constitutional violation, but the U.S. Supreme Court granted certiorari to resolve a conflict in the lower courts over the Confrontation Clause’s application in these circumstances.”

Williams’ petition for certiorari, and Illinois’ response in opposition are here & here. That transcript is here.

A bit akin to Martel, ScotusBlog yesterday made note of the petition for Alabama v. Lane, 11-627, as “raising one or more questions that have a reasonable chance of being granted” and of future interest. The issue here is “Whether a criminal defendant, to whom the Sixth Amendment grants no right to choose which lawyer a court will appoint to represent him in the first instance, nevertheless has a Sixth Amendment right to choose continued representation by that appointed lawyer, such that a court's erroneous replacement of that lawyer is structural error requiring automatic reversal, even when substitute counsel provides effective representation and the defendant is not otherwise prejudiced.”

Alabama’s petition for certiorari

Habeas counsel & death row inmates

The question is asked, "How easy should it be for someone on death row, challenging his state court conviction or sentence in federal court, to get his court-appointed lawyer replaced by another one?"

California, supported by twenty-six states, including Ohio & Kentucky, contends that the Court of Appeals for the Ninth Circuit has made it much too easy. As the states frame the case, the question is whether the condemned prisoner is entitled to a replacement lawyer "just because he expresses dissatisfaction and alleges that his counsel was failing to pursue important evidence." (States' amicus brief )

The Supreme Court heard this case this morning.

ScotusBlog had this background preview posted last Wednesday.


Petition for certiorari
Brief in opposition

9th. Circuit’s opinion

Supreme Court resolving crack cocaine split between federal courts

“Selling cocaine in crack form used to subject offenders to the same sentence one would get for selling 100 times as much in powder,” a New York Times article from last week began. “Then the new law -- the Fair Sentencing Act of 2010 -- reduced the disparity to 18 to 1, at least for people who committed their offenses after the law became effective on Aug. 3, 2010…. But what about people who committed their offenses before the statute came into force but were not sentenced until afterward?”

The lower courts have produced split decisions almost as soon as Congress had passed the law, sometimes even within the same court. Now the Supreme Court has agreed to resolve the question.

In essence, as aptly summarized by Law.com’s Daily Report last October, “the Justice Department initially argued defendants who committed their crimes before it became law were ineligible for the new mandatory minimum rules if they hadn't been sentenced by then. Prosecutors argued the new law couldn't help those defendants because the statute didn't expressly say it applied retroactively, and that divided the lower federal courts."

The 7th Circuit sided with the government, while the 1st Circuit went the other way. (See U.S. v. Douglas)

In May, an 11th Circuit panel adopted the prosecution's view in the case of Charles Hudson, serving a 20-year mandatory minimum sentence for crack convictions out of South Florida. The unpublished decision said the panel's conclusion was mandated by language from a 2010 ruling by the 11th Circuit on the new fair sentencing law, United States v. Gomes, 621 F.3d 1343. Then, later in June, an second 11th Circuit panel went the other way in an unsigned but published opinion deciding the fate of Carmelina Vera Rojas, another South Florida drug defendant sentenced under a pre-FSA mandatory minimum, this one 10 years. While the Rojas panel didn't mention the earlier decision in Hudson's case, its June 24 opinion said that the 2010 Gomes decision didn't mandate a ruling for the prosecution because, in that case, Gomes had been sentenced by the time the Fair Sentencing Act was signed into law. The Federal Public Defender's office in South Florida, the Daily Report observed, which represents both Rojas and Hudson, had missed the deadline to ask for a rehearing in Hudson's case, but quickly asked for and was granted permission to do so based on the Rojas opinion. (Here)

Subsequent to that sequence, the 11th. Circuit now appears to be rehearing both Rojas and Hudson, with preceedings being consolidated & scheduled for in February. (Here)

The Times article is about the pair of 7th. Circuit cases -- Hill v. United States, 11-5721 and Dorsey v. United States, 11-5683, which the Supreme Court has also consolidated and will hear together – but, as ScotusBlog last Nov. 10th. has also observed, the Court may well hold Hill so that it can be considered alongside several other cases that raise the same issue including: Dorsey, Robinson v. United States, 11-5842, Fisher v. United States, 11-6096, Hyde v. United States, 11-6364, Lewis v. United States, 11-6464, and, Hernandez v. United States, 11-6602.

Ohio looking at employability blocks for ex-convicts

A Cleveland Plain Dealer article last Monday wrote of a meeting between Ohio Governor John Kasich and prosecutors, judges & lawmakers to begin exploring ways to better deal with some of the roadblocks to employment many non-violent ex-convicts recently released from prison currently face -- an issue that likely won't be too popular with many of his fellow Republican lawmakers who over the past decade passed a series of tough-on-crime laws with mandatory sentencing guidelines.

There are some "800 or so stipulations written into Ohio's constitution, laws, administrative codes and court rules – collectively referred to as 'collateral sanctions' -- that keep many former inmates from qualifying for a myriad of jobs in today’s markets," the article says and that will be looked at. "Depending on their crime, some felons cannot obtain a driver's license or a professional license to hold jobs requiring even minimal education, such as cutting hair or driving trucks. And they could be blocked from dozens of other professions, too, from banking to insurance sales to athletic training or being a pawn broker."

Gov. Kasich noted that he and State Senator Shirley Smith, who for years has fought for legislation to help convicts re-assimilate into their communities, already won't agree on eliminating what they call the "box" -- the question on most, or many, job applications that asks whether the applicant has been convicted of a felony. Many employers won't consider hiring a person who has checked the yes box to that question.

Smith wants it removed, but Kasich wants to keep it, saying employers still ought to know that a prospective employee is a felon but should be encouraged to consider other factors in deciding whether to hire the person.

Influential at this onset and point in time has been a report entitled, "Collateral consequences of criminal conviction in Ohio," authored by a group led by Lawrence Travis at the University of Cincinnati's Center for Criminal Justice Research, which surveyed "hundreds of Ohio judges, prosecutors, defense attorneys and parole officers," who generally agreed that it was time for the state's criminal justice system to address the unintended impact of some collateral sanctions.

Ohio cyber fraud legislation

The Ohio Senate passed its version of a bill aimed at strengthening the state's telecommunications fraud law yesterday. [Bill's analysis]

"In 2010, 7,304 Ohioans reported losing more than $10 million through thefts or scams involving electronic communications.," according to an Attorney General's press release yesterday. "Cyber fraud scammers often use e-commerce sites like eBay and Craigslist, social media platforms like Facebook, or telephone ruses posing as family members or telemarketers. Most local law enforcement agencies lack the resources to investigate complex cyber fraud cases; in addition, local efforts are also hindered by the fact that most cyber fraud is reported to state and federal agencies because the crimes occur over the phone or Internet.

"The legislation would complement efforts started by Attorney General DeWine in creating the Economic Crimes Division, which conducts criminal investigations within the Consumer Protection Section of his Office. After only two such cases were prosecuted in 2010, the new division indicted nine suspects in several counties for more than 35 felonies committed against Ohio consumers. The division also has over 40 further investigations still pending."

Senate Bill 223, introduced back in September, is companion legislation to House Bill 329.