Friday, September 28, 2012

Drug-maker won't allow Propofol to be used for executions

Drug manufacturer Fresenius Kabi, USA, a German company with U.S. offices based in Schaumburg, Ill., and, up till now the only domestic supplier of Propofol, the anesthetic Missouri and a number of other states had been looking at as an alternative drug for use in executions, announced yesterday that it would not sell the drug for use in executions.

An Associated Press article this morning recounted that "most of the 33 states still having the death penalty have long used sodium thiopental as the first of a three-drug combination administered during lethal injections, but that became unavailable when its European supplier acknowledged pressure from death penalty opponents and stopped selling it for executions. Supplies mostly ran out or expired, forcing states to consider alternatives, with most states retaining the three-drug method but turning to pentobarbital, a barbiturate used to treat anxiety and convulsive disorders such as epilepsy, as a replacement for sodium thiopental. Now pentobarbital supplies also have shrunk after its manufacturer said it would try to prevent its use in executions."

The Associated Press also said neither the Missouri Attorney General's office nor Department of Corrections were available for comment on the news with it having been announced last summer that it was adopting Propofol into its lethal injection protocol. There are also several suits challenging Missouri’s decision to use Propofol. (See earlier posting)

Tuesday, September 25, 2012

U.S. 5th. Circuit reverses on Katrina ruling

The 5th U.S. Circuit Court of Appeals that sided with plaintiffs earlier this year, withdrew that decision, throwing out a landmark ruling that the Army Corps of Engineers was liable for billions of dollars in Hurricane Katrina flood damage that property owners blamed on the corps' maintenance of a New Orleans shipping channel, and, reversing itself, replaced that holding with a new ruling in the federal government's favor, yesterday. (Here)

USAToday, this morning, looked at the 5th. Circuit's change of mind holding that "the corps is completely insulated from liability by a provision of the Federal Tort Claims Act called the "discretionary-function exception."

The 5th. Circuit, in re-examining the Flood Control Act of 1928 (“FCA”), 33 U.S.C. § 702 and discretionary-function exception (“DFE”) to the Federal Tort Claims Act (“FTCA”), 28 U.S.C. § 2680(a), explained:

"Our interpretation of Section 702c and the caselaw, however, provides a rule slightly different from the district court's. Instead of its strictly categorical approach, which would have immunity attach only where a flood was caused b a project that had the purpose of flood control, we recognize immunity for any flood-control activity engaged in by the government, even in the context of a project that was not primarily or substantially related to flood control. Thus, for example, if the government had attempted foreshore protection inside the Mississippi River Gulf Outlet (“MRGO”), [[a shipping channel between New Orleans and the Gulf of Mexico, and levees alongside the channel and around the city (explanatory insertion ours)]] but that protection (whether by design or negligence) caused or exacerbated flood damage, the district court’s rule would grant the Corps no immunity, because MRGO was not a flood-control project. Our rule, by contrast, attaches immunity if the foreshore protection had flood control as its purpose— that is, if installing and maintaining foreshore protection was a flood-control activity regardless of the nature of MRGO, the overall project."

Mexico reviewing Alabama immigration law under international treaty

Jurist Paper Chase last week had a post in which it passed on that "The Mexican government had announced that it was reviewing a complaint [complaint, PDF] by the Service Employees International Union (SEIU) that Alabama's immigration law [HB 56, PDF] violates the North American Fair Trade Agreement (NAFTA) and North American Agreement on Labor Cooperation (NAALC), specifically alleging that Alabama's immigration law is violating the protections granted to migrant workers under the treaty, arguing it is discriminatory and abusive towards all workers, violates both international human rights standards and labor standards."

Jurist further recounted that "a three-judge Eleventh Circuit Court of Appeals panel upheld several provisions of the law in August, including one allowing police officers to check the immigration status of persons suspected of a crime, but rejected provisions making it a crime for undocumented immigrants to work or solicit work, imposing criminal penalties on persons who rent property to illegal immigrants and requiring state officials to check the immigration status of children in public schools. Alabama state officials petitioned the Eleventh Circuit Court of Appeals earlier this month to reconsider a ruling partially striking down the state's immigration law."

Monday, September 24, 2012

Dodd-Frank challenge expanded

The Blog of Legal Times Friday reported that a lawsuit filed last June in U.S. District Court for the District of Columbia by a Texas community bank, the Competitive Enterprise Institute and the 60 Plus Association, challenging the constitutionality of the Dodd-Frank Act, in complaining that it gives the government too much power to take over and liquidate nonbank companies whose failure would jeopardize the financial system., was joined by Michigan, Oklahoma and South Carolina.

While "the original suit focused in large part on the Consumer Financial Protection Bureau, complaining that it 'aggregates the power of all three branches of government in one unelected, unsupervised and unaccountable bureaucrat,'" the post relayed, "the three states specifically decline going after Dodd-Frank on those grounds., limiting their participation to a new challenge added to an amended complaint asking the court to review the constitutionality of the Orderly Liquidation Authority, established under Title II of Dodd-Frank."

"Intended as a so-called third way between bankruptcy and bailout," the post explains, quoting Oklahoma Attorney General Scott Pruitt, "the new authority allows the secretary of the Treasury to order the Federal Deposit Insurance Co. to take over and liquidate a nonbank determined to be 'in default or in danger of default,' and if its collapse would have a 'serious adverse effect on the financial stability of the United States.' Such a substantial power is fundamentally inconsistent with our constitutional framework and checks and balances, making this is a very important case."

Friday, September 21, 2012

ABA/Nat'l. Institute of Justice collateral sanctions website

The American Bar Association and Department of Justice's National Institute of Justice have launched a new website that allows users search a database of federal and state laws hindering people with criminal records from being able to do basic things in their re-entering society like finding work and or a place to live. ( Here )

The Blog of Legal Times yesterday posted that the website currently includes information on federal aspects, and state laws in Vermont, Minnesota, Iowa, Nevada, Texas, Wisconsin, South Carolina and New York. The remaining states, District of Columbia, Puerto Rico, and the U.S. Virgin Islands should be included within the next 18 months or so administrators say.

In 2003, the project is backgrounded, "the ABA urged jurisdictions to identify and codify collateral sanctions and to limit the imposition of discretionary disqualifications. A few years later the Uniform Law Commission made similar recommendations. Section 4 of the Uniform Collateral Consequences of Conviction Act requires each jurisdiction to compile and make available on the internet an inventory of any provision in the state constitution, statutes, and administrative rules that create collateral sanctions and authorize disqualifications with citations and short descriptions.

"Understanding that this would be a time-consuming and expensive task for states acting independently, and that the absence of an inventory would likely discourage enactments, the drafters of the Uniform Act approached Congress for assistance., and that resulted in a provision in the Court Security Improvement Act of 2007 directing the National Institute of Justice to collect and analyze the collateral consequences for each U.S. jurisdiction, The ABA Criminal Justice Section won the contract to perform this work, and the result is the National Inventory of the Collateral Consequences of Conviction here presented.

"Through the National Inventory, each jurisdiction's collateral consequences will be made accessible to the public through a website that can be searched and sorted by categories and keywords. The website will make it possible for criminal and civil lawyers to determine which collateral consequences are triggered by particular categories of offenses, for affected individuals to understand the limits on their rights and opportunities, and for lawmakers and policy advocates to understand the full measure of a jurisdiction’s sanctions and disqualifications. It will also be possible through the website to perform inter-jurisdictional comparisons and national analyses."

Website's Users' Guide

Reminder that Ohio's "collateral reform" legislation (Senate Bill 337) goes into effect on September 28th. 2012 (See Monday's post).

Thursday, September 20, 2012

Lethal Injection/ Death Penalty news

A article this morning is relating that "according to a review of state pharmacy documents by The Associated Press, Ohio at this point in time has enough of its now-off-limits execution drug, pentobarbital, to complete seven of its 10 scheduled lethal injections, meaning that over the next year it must somehow acquire new batches or again switch to a different drug."

"Several states," the article noted, “including Florida, Georgia, Ohio, Oklahoma and Texas, had switched to pentobarbital after supplies of a previous execution drug dried up. Texas prison officials disclosed last July that they had enough of the drug to execute as many as 23 people, while Oklahoma, that same month, reported that it had secured 20 additional doses…”

Ohio’s supply of pentobarbital expires next September, the article says, and “it’s unclear what the state would do once the supply runs out. Prisons director Gary Mohr had testified in federal court back in March that an altered version of the drug or a supply imported from overseas would not necessarily violate the prison’s execution policies… Expired batches of it would.”

Last May the Missouri Department of Corrections announced it was switching from its longstanding three-drug execution method to use of a single drug, propofol, making it the first state ever to use that drug for executions. Propofol is the same anesthetic that caused the overdose death of pop star Michael Jackson, a CBS News article back then had relayed, “causing a stir among critics who question how the state could guarantee a drug untested for lethal injection wouldn’t cause pain and suffering for the condemned.”

Missouri Attorney General Chris Koster asked the state’s Supreme Court to set execution dates for up to 19 condemned men the same month, but an Associated Press article in early June was already reporting that court records released by then showed the court had advised attorneys for six of those inmates that they have until the end of June to show why an execution date should not be set, with the Wall Street Journal and St. Louis Post-Dispatch reporting in mid-August that its supreme court had taken the position that “it would be ‘premature’ to set execution dates for the six men on death row with a lawsuit pending that claims the state’s new lethal injection procedures are inhumane.”

That suit, originally filed in Cole County Circuit Court in June, was removed to Missouri’s Western District Federal Court in August on the state’s motion, with the earliest court date appearing to be in August 2013.

The Post-Dispatch article also reported that “It was also not clear whether propofol would be available for that purpose. In response to questions from the Post-Dispatch, one manufacturer, Fresenius Kabi, said it would not accept orders from prison systems and is "currently examining whether there may be possibilities to more tightly control access to propofol in the United States as a whole, in order to effectively prevent it from being used for purposes other than the approved medical indications."

Wednesday, September 19, 2012

Revised Cincinnati Police taser policies

Cincinnati Police along with the city's law department announced last Monday the completion of a comprehensive review of the Department's Use of Force policy, specifically related to deployment of the Taser X26 electronic stun device, triggered in part due to concerns about the Taser's capacity to cause death in certain rare situations. (City's memo)

In that regard, Cincinnati police officers are instructed that "When deploying a cartridge from the TASER X26, frontal shots are prohibited except in situations of self defense or defense of another. The TASER X26 should never be aimed at an individual's head, neck, eyes, throat, chest/breast, or genitals. The preferred target area is the back of the individual actively resisting arrest."

The policy review also sought to address a number of other objectives including:

*CPD Use of Force policies need to emphasize provisions outlined in the Supreme Court's
Graham v. Connor decision, in which the Court determined that an objective reasonableness standard should apply to a free citizen's claim that law enforcement officials used excessive force in the course of making an arrest, investigatory stop, or other "seizure" of his person.
* Reducing the number of secondary injuries resulting from Taser deployment;

*· Bringing the policy up to date with Department reorganization and new reporting enhancements.
The policy review "concluded that Tasers remains an important and beneficial tool in the police profession, and allows arresting officers to keep distance between themselves and suspects, which reduces the need to resort to lethal force options. Moreover, significant reduction of injuries to officers and suspects has been documented since introduction of the Taser."

Enquirer article this morning had more information, including repeated mention of the City's consideration of an article by Dr. Douglas Zipes, of Indiana University's Krannert Institute of Cardiology, in which he "noted seven deaths among the eight cases he studied, concluding that a shock from the Taser 'can cause cardiac electric capture and provoke cardiac arrest' as a result of an abnormally rapid heart rate and uncontrolled, fluttering contractions."

"Taser International, which manufactures the devices, attacked Zipes' conclusions," this morning's article says, with a spokesman for the Arizona-based company countering that "Zipes' Circulation case series is contrary to the three major Taser position statements by the American Academy of Emergency Medicine, American Medical Association, and the U.S. Department of Justice’s National Institute of Justice."

In response to Cincinnati's policy changes, though, that spokesman agreed "Their new policy…is consistent with legal principles when a suspect is an immediate threat. We agree that back shots remain the preferred area when practical… the suspect's back has always been a preferred target zone."

Monday, September 17, 2012

New Ohio"collateral sanctions" Reform

Back in June Ohio Governor John Kasich signed Senate Bill 337, reforming "collateral sanctions" in the state.

The bill, sponsored by Cleveland Democratic Sen. Shirley Smith and Cincinnati Republican Sen. Bill Seitz, was introduced in April and had been noted to have surprised some conservative Republican friends of the Governor when he announced that he would support a bill that eases restrictions on job-hunting felons who have been released from prison, after a decade of Republicans passing tough-on-crime bills in Ohio's legislature.

Senator Smith was quoted as telling the Cleveland Plain Dealer that enactment of the bill would "benefit thousands of rehabilitated citizens who have paid their dues to society and want to move on with their lives."

Once time served, the new law will allow a former inmate to seal one felony and one misdemeanor conviction or two misdemeanor convictions, but not two felony convictions. It creates a certificate of qualification that will give him/her access to some occupational licenses that they previously could not obtain, such as jobs such as truck drivers and barbers, and excludes certain juvenile records from public records requests.

Full text of the bill is here, and the Ohio Legislative Service’s analysis here.

The bill goes into effect on Friday, September 28th. 2012

Longest-running civil law case in U.S. may be nearing end

A civil back-pay/ benefits case that started back in 1969 and has proceeded thru federal bankruptcy court, corporate reorganization, and 43 years of litigation and arbitration, challenge & cross-challenge in three jurisdictions, may finally being nearing a close according to Cleveland Plain Dealer and Ashland (Ohio) Times Gazette articles last week. It is, without much question, one longest-running cases in U.S. history.

It's a case that has gone on for so long that only two of the 32 original people filing the suit are still alive, and one in which, had defendant Penn Central settled back in 1968, would cost them $564,820, according to court records. That amount now – with interest added in – is $14.7 million.

U.S. District Court (Eastern Pennsylvania) Judge Harvey Bartle last month, in Philadelphia, ruled in favor of a $14,761,238 judgment entered against "the Penn Central" in United States District Court for the Northern District of Ohio, confirming an arbitration award, modified by the Surface Transportation Board ("STB"), in favor of claimants for benefits and pre-judgment interest owed under a 1964 collective bargaining agreement.

The case started back in 1968, when the Pennsylvania and New York Central Railroads merged, a short time later furloughing 29 employees of the Central Union Terminals Company, a subsidy of New York Central, without extending time served or other benefits because, in their view, the merger agreement didn’t include them. In 1969, 17 of the 29 furloughed employees filed suit in the U.S. District Court for Northern Ohio. (Knapik v. Penn Central, case 69-722).

Judge Bartle's memorandum on Aug. 28th. details how complicated and involved the proceedings got from there over the next intervening forty-three years.

Friday, September 14, 2012 had an interesting article last Tuesday not so much because of the specifics of the case involved, but respective of the overall & evolving issues of electronic surveillance, privacy, and the like entailed in it.

The cases in question were born in conjunction with a local divorce case in which a man, suspicious of his former wife, wired their home with cameras, microphones, phone taps, and computer-based software to monitor everything she did.

The recordings, which came out in the divorce proceedings in 2009 --but were disallowed --are now at the heart of two U.S. District Court lawsuits involving almost a dozen friends and relatives, a prominent Cincinnati defense attorney and a company that manufactures computer monitoring software over the growing use of surveillance technology and the right to privacy in the 21st century, according to the article.

"No criminal charges were filed, but Domestic Relations Judge Ronald Panioto declared the recordings from the parties' home were obtained by 'illegal means' when he threw them out of the couple's divorce in 2010.

"Privacy experts and divorce lawyers," the article comments, "say the case is unusual only because their fight is being played out in court and that high-tech snooping among friends, housemates and relatives is increasingly common, but that those targeted often don’t find out about it – or are too embarrassed to challenge it.

"The widespread use of that technology is proving a challenge for judges and police, who are struggling to resolve disputes over text messages and hidden cameras with privacy laws written in the days of rotary phones and cassette tapes," it continues, quoting Julie Wilson, spokeswoman for Hamilton County Prosecutor Joe Deters, who said, "With the technology evolving at such a rapid rate, the case law is in flux and quite often not a real black and white issue."

In keeping with the spirit of this developing sphere of question & inquiry, Marcus P. Zillman, timely enough appearing on Sabrina Pacifici's reference database, has "a comprehensive listing of both free and low cost privacy resources currently available on the Internet, including associations, indexes and search engines, as well as websites and programs that provide the latest technology and information on Web privacy. Also published Tuesday, this guide will help facilitate a safer interactive environment for your email, your internet browsing, your health records, your data storage and file sharing exchanges, and internet telephony." (Here)

Tuesday, September 11, 2012

State Rankings of Tort Liability Systems

Blog of Legal Times writer Don Tartaglione yesterday posted an entry about pro-business U.S. Chamber Institute for Legal Reform's releasing its latest survey gauging which states U.S. businesses perceive as having the most "fair and reasonable" tort liability systems.

Tartaglione wrote that Institute President Lisa Rickard said that in large part the survey results stemmed from how much a state's litigation climate affected important business decisions within that state, and that "Litigation climate was an important factor…in determining whether to do business in that state -- that is a critical factor for potential job growth."

Seventy percent of those surveyed reported that a state's litigation environment is likely to impact important business decisions at their companies -- an increase from 67 percent in 2010 and 63 percent in 2008.

The top five states according to the survey, in order from the highest-ranked, were Delaware, Nebraska, Wyoming, Minnesota and Kansas. West Virginia, Louisiana, Mississippi, California and Illinois received the lowest rankings in the study, which earlier this year surveyed more than 1,100 in-house general counsels, senior attorneys and other leaders of companies that earn at least $100 million annually.

Ohio, Kentucky, and Indiana fall in between the above list, being 30th., 38th., and 14th., respectively.

Lawsuit Climate: 2012 State Liability Systems Survey, Ranking the States (PDF)

Thursday, September 06, 2012

Ohio CrimR 11/EvidR 410 per "no contest" pleas

The Ohio Supreme Court held Tuesday that provisions of the state's Rules of Criminal Procedure and Rules of Evidence that generally bar reference to a defendant's plea of "no contest" to a criminal charge in any subsequent civil or criminal court proceeding do not apply to proceedings in which the defendant collaterally attacks the criminal conviction that resulted from his no-contest plea. ( See Hollingsworth v. Timmerman-Cooper, 2012 Ohio 3907 )

Petitioner filed a habeas corpus action in district court asserting that he had received ineffective assistance of counsel at his criminal trial. Respondent warden of the London Correctional Institution countered that petitioner's plea of "no contest" in the underlying criminal case constituted a waiver of his right to the effective assistance of counsel, to which petitioner objected, arguing that under Ohio law the state could not use his no-contest plea and resulting conviction against him, including using the plea as evidence that he waived his right to effective assistance.

At issue here was whether "Ohio R. Crim. P. 11(B)(2) and Ohio R. Evid.410(A)(2), which prohibit the use of a defendant's no contest plea against the defendant 'in any subsequent civil *** proceeding' apply to prohibit the use of such a plea in a subsequent civil proceeding which is a collateral attack on the criminal judgment which results from the no contest plea, such as a petition for post-conviction relief under Ohio Revised Code § 2953.21, or a federal habeas corpus action under 28 U.S.C. § 2254"

The case was a certified question from the Southern Ohio District Court upon finding no controlling precedent on the admissibility of a no-contest plea in a habeas proceeding.

The Court's summary relates that Justice Paul Pfeifer cited the Supreme Court's 2010 holding in Elevators Mutual Ins. Co. v. J. Patrick O’Flaherty’s Inc. that the purpose behind Crim R.11(B)(2) and Evid.R. 410(A)(2) was to encourage criminal defendants to enter into plea bargains with the state, but that "The purposes served by these two rules are of limited applicability in the present case, the present case involving a habeas action, not a civil suit by a victim. In post-conviction proceedings, there is no risk of subsequent civil liability or even of enhanced criminal liability."

In answering the issued question in the negative and referring to its decision in State v. Mapes, 19 O St. 3d 108 (1985) Justice Pfeifer further wrote, "At its core, a habeas action is a collateral attack on the underlying conviction. Wall v. Kholi, ___ U.S. ___, ___, 131 S.Ct. 1278, 1284, 179 L.Ed.2d 252 (2012). In the instant case, the conviction was the result of a no-contest plea. To prohibit the state from using the no-contest plea to defend the validity of the conviction that resulted from the plea would render the state mute. The state has no defense if the no-contest plea is not in play. As noted earlier, the clear purposes of Crim.R. 11(B)(2) and Evid.R. 410(A)(2) are to encourage the use of plea bargaining by removing the civil consequences of the plea and to avoid an admission of guilt. Prohibiting the state from introducing evidence of a no contest plea in a habeas action to show that the petitioner has waived his claim of ineffective counsel does nothing to advance those purposes, and permitting use of the plea does not frustrate them. The plea is not being used to impose liability on the petitioner or to prove his guilt. There is no risk of subsequent civil liability or even of enhanced criminal liability. The worst-case scenario for a defendant in a post-conviction proceeding such as habeas corpus is the status quo. As we stated in Mapes, the purposes of the two rules 'are not disserved' here. 19 Ohio St.3d at 111, 484 N.E.2d 140."

Ohio State Bar Association The Law & You" Free Publication

While not intended to be a definitive work substituting for professional consultation, the 14th edition of the Ohio State Bar Association's "The Law & You" provides laypersons with a wide overview of the fundamentals of law, particularly as applicable in the state of Ohio.

Supreme Court's announcement from last month says "the 349-page handbook, funded by the Ohio State Bar Foundation, is divided into 15 chapters that include summaries as well as web links. According to the book's introduction, the basic subjects covered are the sources of law, organization and operation of the courts, legal procedure, criminal law, torts, contracts, business transactions and corporations, property law, probate law, family law, workplace law, school law, online law and media law. In addition, a glossary explains many technical terms the layperson is likely to encounter."

It available online @

Wednesday, September 05, 2012

Lawsuit challenges rules of conduct in recently renovated city park

The Cincinnati Park Board and nonprofit Cincinnati Center City Development Corporation finished renovation of Washington Park in July after its being closed for almost 18 months, during which time cemetery & archeological remains were excavated & cataloged, and the property was expanded from 6 acres to 8 acres, which included the construction of a parking garage beneath it for up to 450 cars, complementing the City's historic Music Hall across the street. Renovations cost about $46 million.

A article back in June predicted that "Importantly, the park plan should contribute to the neighborhood's efforts to reduce crime. In 2000, police responded to 3,135.5 crimes per 1,000 people in Over-the-Rhine and nearby Pendleton. Although the number of crimes dropped 39 percent by 2010, the rate remains twice as high as the average city neighborhood. And serious crime incidents increased again last year.

The park officially re-opened Friday, July 6, 2012 with a ribbon cutting ceremony and a concert by a choir in town for the World Choir Games which had just begun in Cincinnati.

But now, a lawsuit has been filed against the Park Board by three Over-the-Rhine residents alleging it of improperly adopting the rules and surrendering too much of its authority to the Cincinnati Center City Development Corp. (3CDC), which now manages the park. The suit challenges several rules that homeless advocates say are not posted in other city parks and discriminate against the less fortunate, such as prohibitions against rummaging in trash and dropping off food or clothing. (
Article and Complaint )