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Saturday, September 12, 2015

Murder case moves forward with multiple motions

Kauffman murder case moves forward with multiple motions filed by defense attorneys

By Sabra Stafford

If there is any certainty in the case against defense attorney Frank Carson and the seven other defendants arrested alongside him in connection to the death of 26-year-old Korey Kauffman, it is that it is generating mountains of legal documents.

Carson and the other defendants are due in court Monday for what is presumably a continued arraignment, but attorneys on both sides have filed numerous motions on a variety of matters, making it an uncertainty on whether or not any of the defendants will enter guilty or not guilty pleas come Monday.

The Stanislaus County District Attorney’s Office alleges Carson orchestrated a criminal conspiracy that ultimately led to the death of Kauffman on March 31, 2012, and that thereafter the defendants worked to hide the death from authorities and thwart any investigation. Carson, along with his wife Georgia DeFilippo, Pop N Cork owners Baljit Athwal and Daljit Atwal, former California Highway Patrol officer Walter Wells, and Turlock resident Robert Lee Woody are all charged with first-degree murder and conspiracy for Kauffman’s death. Carson also faces a charge of perjury. Christina DeFilippo and CHP officers Eduardo Quintanar and Scott McFarlane are facing charges of conspiracy and being accessories in the death and cover-up. Everyone but Woody was taken into custody on Aug. 14. Woody was arrested in March of 2014 and as of now his case is being tried separately.

The case is currently assigned to retired Contra Costa County Judge Barbara Zuniga and she issued a minute order on Wednesday stating that Monday’s hearing would only deal with a motion regarding shackling at the jail, Georgia DeFilippo’s continued bail review, and the arraignment. All other matters would be scheduled for later hearings.
However, there is an issue over whether Zuniga will continue as the judge assigned to the case.  On Sept. 3, Defense Attorney Ryan Roth, who is now representing Christina DeFilippo, filed a peremptory challenge to having Zuniga as the presiding judge. The challenge states Zuniga is “prejudiced against defendant or interest of the party” and therefore should be removed from the case. The challenge was joined by Defense Attorney Percy Martinez, who is representing Carson.

On Sept. 4, Zuniga ordered the challenges stricken, but on that same day Defense Attorney Alonzo Gradford filed a declaration of support for the challenge on behalf of his client, Eduardo Quintanar. His challenge was struck down on Wednesday. On Thursday, the attorneys representing Carson and Christina DeFilippo filed peremptory challenges again against the judge and as of Friday afternoon there was no reply from the judge.

One matter that will likely be debated on Monday is whether or not the defendants must remain completely shackled during interviews with their attorneys at the Stanislaus County Jail and at the Stanislaus County Public Safety Facility.
All the defendants charged with murder are currently still in custody, though Georgia DeFilippo and Wells were given the opportunity to post bail, albeit at $10 million each. They are all classified as maximum security inmates and as such they have their hands and ankles shackled and attached to a waist shackle. In the interview room they have an additional shackle which chains them to the floor, according to their attorneys.

At a previous court hearing, the defense attorneys argued that such measures make it impossible for the defendants to aid in their own defense by the mere fact they can’t turn over page documents or sign their names without difficulty. After a brief hearing on the matter, Judge Peter Socrates Manoukian issued a temporary order allowing for the defendants to have one hand free from the shackles while meeting with their attorneys at the jail.
The order has yet to have been carried out, according to the defense attorneys. Martha Carlton-Magana has filed an order to show cause and hold Stanislaus County Sheriff Adam Christianson in contempt because he has “willfully and intentionally” ignored the court's order, according to her motion. She states she went to see her client Baljit Athwal at the jail and despite the order her client was kept shackled the entire time of the interview. She states it was at this time that she was informed the sheriff would not comply with the court’s order.

Carlton-Magana’s motion was joined by Martinez on behalf of Carson on Thursday.

In response to the order to show cause, the sheriff’s department, through their attorney, argued the order to have the defendants unshackled should be vacated because in part they were not given an ample opportunity to brief the court on the legal and safety issues that would arise from unshackling.

The motion states the shackling policy that is in place is “designed to foster safety of the inmates, employees, and visitors” and “should not be disturbed by the Court.”

The motion argues that even allowing one hand to be unshackled would increase the risk and threat of violence and leaves open a possibility an inmate could obtain an item that could be later used as a weapon against the custodial staff or other inmates.

The motion points to the court’s previous ruling that the defendants remain shackled in court out of safety concerns as reason why they should remain shackled at the jail.

The court did allow for one exception to the shackling rule in court, allowing Carson to have one hand free so he could take notes during the proceeding. Carson has indicated he plans on serving as his own co-counsel, a move the district attorney’s office hopes to prohibit.

The district attorney’s office filed a motion to bar Carson from serving as his own co-counsel on the grounds that there would be a conflict of interest. Carson has served as the attorney for Woody and two likely witnesses for the prosecution – Ronald Cooper and Patrick Hampton. The district attorney’s office argued in their motion that Carson would be “in a position to use these former clients’ confidential information for his own benefit in placing blame for the current offenses upon persons other than himself.”

The motion also states that while a person has a constitutional right to counsel of their choosing, they do not have a guarantee for a “hybrid form of representation.”

While the district attorney’s office is trying to ban Carson from serving as his own co-counsel, some of the defendants have filed their own motions to stop the district attorney’s office from prosecuting the case.
Defense attorney Tim Pori, representing Georgia DeFilippo, has filed a motion to have the district attorney’s office recused from the case on the grounds that the district attorney’s office is carrying a vendetta against Carson because he has won several high profile cases against them, has filed lawsuits against their investigators, accused investigators and an attorney of jury tampering, and publically called out the office for corruption during his bid to be elected district attorney.
“There is a serious conflict of interest between the Office of the District Attorney and Ms. DeFilippo, where the district attorney’s personal entanglement with her husband, prominent local attorney Frank Carson, makes it impossible that she will be treated fairly at any stage of this proceeding by any prosecutor employed by that Office,” Pori wrote in his motion.
The motion was joined by the attorneys representing Carson, Wells, Quintanar, and Baljit Athwal.

The district attorney’s office filed a response to Pori’s motion, arguing “nowhere has defense counsel provided evidence of actual antagonism on the part of the district attorney’s office.”

The response from the district attorney’s office states the defense’s argument boils down to the district attorney disliking Carson and as such the prosecution would not go forward with the case in an evenhanded matter. Ultimately, the district attorney’s office called the contentions put forth “without merit.”

Pori has filed two other motions in the case – one is to have the Ramey warrant, which was used to make the arrests, quashed, while the other seeks to have the bail reduced for his client.

In his motion to quash the arrest warrant, Pori refers to the 326-page document as a “rambling and incoherent affidavit” and as such “the facts that mention Ms. Georgia DeFilippo in the affidavit for her arrest do not implicate her in the murder, or in the aiding, abetting, or encouragement of murder.”

Pori argues the arrest warrant in regards to Georgia DeFilippo lacks any probable cause and therefore her arrest was unlawful. Carson’s attorney joined the motion on Thursday.

The district attorney’s office filed a response to Pori’s motion that states the affidavit would lead a “reasonable person” to conclude “Georgia DeFilippo was in on the conspiracy to ‘send a message’ of violence to would-be burglars of their property in Turlock,” and that she “actively furthered and aided the plan to catch the trespassers and turn them over to Frack Carson.”

The response from the district attorney’s office also makes the argument that even if the arrest warrant was quashed it would not make the criminal charges go away.

In a matter that could potential be heard Monday is a request to have Georgia DeFilippo’s bail reduced. Stephen Krimel, owner of Nevada’s two largest bail bond companies and a certified bail expert used in the Stanislaus County case against A.J. Pontillo, submitted a statement of support for Georgia DeFilippo, saying she was an ideal candidate for release on her own recognizance or on a $100,000 bail.

All the defendants except Woody are expected in court on Monday for the continued arraignment.

Friday, August 2, 2013

law requires cord blood from some teen moms

New Miss. law requires cord blood from some teen moms

JACKSON, Miss. (AP) — If a girl younger than 16 gives birth and won't name the father, a new Mississippi law — likely the first of its kind in the country — says authorities must collect umbilical cord blood and run DNA tests to prove paternity as a step toward prosecuting statutory rape cases.

Supporters say the law is intended to chip away at Mississippi's teen pregnancy rate, which has long been one of the highest in the nation. But critics say that though the procedure is painless, it invades the medical privacy of the mother, father and baby. And questions abound: At roughly $1,000 a pop, who will pay for the DNA tests in the country's poorest state? Even after test results arrive, can prosecutors compel a potential father to submit his own DNA and possibly implicate himself in a crime? How long will the state keep the DNA on file?

Republican Gov. Phil Bryant says the DNA tests could lead to prosecution of grown men who have sex with underage girls.

"It is to stop children from being raped," said Bryant, who started his career as a deputy sheriff in the 1970s. "One of the things that go on in this state that's always haunted me when I was a law-enforcement officer is seeing the 14- and 15-year-old girl that is raped by the neighbor next door and down the street."

But Bear Atwood, legal director for the American Civil Liberties Union of Mississippi, said it's an invasion of privacy to collect cord blood without consent of the mother, father and baby. She also said that an underage girl who doesn't want to reveal the identity of her baby's father might skip prenatal care: "Will she decide not to have the baby in a hospital where she can have a safe, happy, healthy delivery?"

The law took effect July 1 but hasn't been used yet. Cord blood samples would have to be taken immediately after birth, and the state medical examiner is setting administrative rules for how the blood will be collected and stored. Megan Comlossy, health policy associate for the National Conference of State Legislatures, said she thinks Mississippi is the first state to enact a law authorizing the collection of blood from the umbilical cord — a painless procedure — to determine paternity.

Bryant's staff says the idea for the law came from public meetings conducted by the governor's teen pregnancy prevention task force — a group that focuses mostly on promoting abstinence.

Statistics put the state's teen pregnancy rate among the highest in the country. In 2011 — the most recent year for which statistics are available — there were 50.2 live births in Mississippi per 1,000 females ages 15-19, according to the Centers for Disease Control and Prevention. The nationwide rate was 31.3.

And more than half Mississippi's 82 counties reported at least one pregnancy by a 10- to 14-year-old girl in 2011, according to an Associated Press analysis of state statistics.

The governor's staff also said it heard disheartening information from Chancery Judge Janace Harvey Goree, whose district covers four counties in central Mississippi.

In an interview with the AP, Goree said she was disturbed to learn that several middle school girls had become pregnant in recent years in Holmes County, where she lives. In the poor, mostly rural county, middle school and high school students are on the same campus in some places.

"Most often, it is not middle school boys that are getting the middle school girls pregnant," Goree said.

As a chancery judge, Goree oversees child support cases.

"When you're seeking child support quite often in these situations, they don't identify the father and so quite often you don't know until way down the road that the person who is the father is a relative or the boyfriend … of someone else in the household," she said.

The governor said he worked with Attorney General Jim Hood, a Democrat, on the cord blood bill. The final version passed the Senate unanimously and the House 98-17. The issue of cost received little debate.

The bill's main sponsor, Republican state Rep. Andy Gipson, said the U.S. Supreme Court has ruled that DNA left on objects, such as saliva on a disposable cup, can be tested as evidence in a criminal case. He said he thinks umbilical cord blood fits that description.

"We're not taking blood from the baby," Gipson said. "We're not taking blood from the mother. We're taking blood that is discarded … literally discarded."

Gipson said he doesn't believe a man who fathers a child with an underage girl should have a reasonable expectation of privacy. "Most cases would involve a suspect who is pretty well identified," he said.

Democratic state Rep. Adrienne Wooten voted against the bill, saying it will mostly hurt poor women and could lead a prosecution "fishing expedition to find out who the father is."

"I think that that is totally outside the boundaries of what we as a Legislature should be doing," said Wooten, who, like Gipson, is an attorney. "We already have laws that deal with statutory rape."

The attorney general's office doesn't keep statistics on the number of cases that district attorneys pursue in Mississippi under the state's longstanding statuary rape law, spokeswoman Jan Schaefer said.

"A lot of DAs and judges don't want to take these cases on," Bryant said. "Oftentimes, the female doesn't want to press charges or the parents do not want to. So, we've just got to stop this."

The new law says it's reasonable to think a sex crime has been committed against a minor if the baby's mother won't identify the father or lists him as unknown, or if the identified father disputes paternity, is 21 or older, or is deceased. The law says health care workers and facilities cannot face civil or criminal penalties for collecting cord blood, and failure to collect is a misdemeanor offense. The law doesn't address whether the mother can refuse blood collection or what would happen to her if she does.

Goree said she supports using the law to prosecute older men but is concerned it could be on teenage boys.

"It's a different problem than a 13-year-old impregnated by a 21-year-old or a 30-year-old," she said. For the bigger age gap, Goree said, "I have no sympathy."

Copyright 2013 The Associated Press. All rights reserved. This material may not be published, broadcast, rewritten or redistributed.

Tuesday, July 30, 2013

Sexy résumé lands law grad fleeting fame if not job

Sexy résumé lands law grad fleeting fame if not job

 A lawyer desperate to get a job has made an impression on the legal community here, but not necessarily in a good way.
2009 Villanova Law School grad Brian Zulberti said he was about two Red Bulls into a late-night push to e-mail every lawyer he could find in the legal directory when he decided to add a photo.
Not a typical head-and-shoulders, suit-and-tie mug photo, it was a picture of Zulberti, 30, in a T-shirt with the sleeves rolled up, showing off his sculpted arms. Within a day of sending out his second round of e-mails, he became an Internet sensation.
"I was desperate to an extent," said Zulberti, adding he thought throwing in a little sex appeal might improve his chances.
This attracted the attention of the Above the Law Blog — apparently tipped off by an unimpressed lawyer that received it — which posted an item about Zulberti's letter and photo under the search term "Bad ideas."
"Seriously? Has this man no shame?" wrote Staci Zaretsky on the blog. "Who needs a résumé when you can send a selfie instead?"
The blog then went one step further and chastised Zulberti for pictures on his unsecured Facebook page, including one racy naked torso shot of Zulberti, his underwear dangerously low, holding a sign over his face that cried out for better grammar: "HIRE ME!!! no … as a Lawyer, … NOT A ESCORT… wait is it something I'm wearing."
"A picture is worth a thousand words, and here, all of those words seem to be: NO NO NO NO NO NO," Zaretsky wrote in the blog.
That started the explosion.
The blog post went viral on social media and Zulberti said he suddenly started getting a flood of friend requests on Facebook, less than 12 hours after he sent out his last batch of job-seeking e-mails. His voice mail and e-mail were soon swamped with messages.
Some were supportive, telling him not to give up hope. More called him a disgrace to Delaware, where he had just joined the bar. A number of friends told him to turn on his Facebook privacy settings.
That also was the advice of Delaware attorney and employment law expert Molly DiBianca.
"This is just wrong on so many levels," she said. Law firms want someone who is serious, professional and can show discretion. The images Zulberti posted of himself show "just the opposite."
"I'm sort of stunned by this picture. I can't stop looking at it," DiBianca said, noting that on top of everything there is a grammatical error in his "Hire Me" sign, which she said "looks like a 4-year-old wrote it."
Zulberti said soon after the blog mocked him, he started getting calls from media organizations and friends started sending him links to stories that had been posted about him from as far away as Croatia.
Among his Web hits:
• Gawker, "Lawyer Asks Hiring Firms to Google Him. Puts nude selfie on Facebook"
• MSN, "Law school grad bemoans job search, flaunts toned arms in cover letter"
• And even The Mail Online, the website of London's Daily Mail tabloid, "That's one way to bulk up your résumé!"
Some are getting the story wrong or at least misunderstanding it, Zulberti said.
"I never sent any pictures in my underwear to employers," he said. "I sent a picture in a muscle shirt. I will allow others to debate whether or not that was appropriate."
He said he already has talked to one Philadelphia radio show and has been invited to appear on The Steve Harvey Show.
The American Bar Association Journal website pointed to Zulberti's story as a cautionary tale both about the desperate job market, particularly for would-be lawyers, and the dangers of over-sharing on social media. Tuition and fees at Villanova Law School for the 2012-13 school year was $38,910, according to the Pennsylvania university's website.
073013 brian zulberti
But Zulberti said as far as he is concerned he sees no moral to the story.
Zulberti said he didn't intend to set off a social media firestorm. But now that it has arrived he is going to milk it, and enjoy it, for all it's worth.
"I went from being a guy with no job to a guy with no job on TV," he said with a laugh, sitting in his father's home where he lives.
In a YouTube response to Above the Law, Zulberti said while he initially felt the blog item was "rather insulting" and mean, the author also called him "a young stud."
"So it balances out," he said in the video, which has received nearly 10,000 views.
And through all the craziness, Zulberti has defiantly kept his Facebook page public and has continued to post provocative pictures of himself. Zulberti said to turn on privacy filters at this point would be to change who he is.
"I am the guy who takes pictures of himself in his underwear," he said, adding he thinks the images are funny and lawyers should be allowed a sense of humor.
"There is something to be said for being true to one's self in a job search," DiBianca said, but she added that people looking for a job have to be concerned about being a cultural fit with their employer. Reputation is an important part of being an lawyer. "And this does not come off professionally, to say the least.
"You have to keep client matters confidential," she said. "And he doesn't seem to understand the boundaries or lines of confidentiality very well."
Despite the largely negative online and media attention he's received, Zulberti said the job search is going well. He has received several invitations to submit his résumé, and one interview he had Friday went so well that he is hopeful it will lead to a job offer.
Zulberti said he recognizes that "the social media death hammer" ultimately may crush his legal dreams but hopes people judge him on his legal abilities and not Facebook pics of his pecs.
"All I need is one job," Zulberti said, even if 9,999 out of 10,000 potential employers don't like him. If he gets that job, he said he will have the last laugh.
"I feel I could be a very good attorney some day," he said.

Wednesday, July 24, 2013

Court overturns passport law implying Israeli sovereignty over Jerusalem

Court overturns passport law implying Israeli sovereignty over Jerusalem

By Ann E. Marimow

A federal appeals court Tuesday found unconstitutional a law that gives thousands of Americans born in Jerusalem the option of listing Israel as their birthplace on U.S. passports.
In a separation-of-powers dispute centered on Middle East politics, the U.S. Court of Appeals for the District of Columbia Circuit found that the law passed by Congress in 2002 “impermissibly intrudes” on the powers of the president.
“While the president’s foreign affairs powers are not precisely defined, the courts have long recognized the president’s presumptive dominance in matters abroad,” Judge Karen LeCraft Henderson wrote in a 42-page opinion.
At issue is a provision of a 2002 foreign-relations act that challenged the U.S. policy of neutrality over the sovereignty of Jerusalem, a holy city claimed by both Israelis and Palestinians. The law allowed Jerusalem-born Americans to request that official documents list their birthplace as Israel.
Because of U.S. foreign policy regarding Jerusalem, the State Department — under Republican and Democratic administrations — has refused to follow Congress’s direction.
“Congress plainly intended to force the State Department to deviate from its decades-long position of neutrality on what nation or government, if any, is sovereign over Jerusalem,” Henderson wrote. She was joined by judges Judith W. Rogers and David S. Tatel, who also wrote a concurring opinion.
The case, which reached the Supreme Court in 2011, was brought by Ari and Naomi Zivotofsky, U.S. citizens whose son Menachem Binyamin was born in Jerusalem in 2002. The couple want their son’s passport to say he was born in Israel.
Zivotofsky attorney Nathan Lewin argued that the legislation “simply and neutrally” regulated the form and content of the passport.
Lewin said in a statement Tuesday that the “difficult case” calls for resolution by the Supreme Court. He described the State Department’s passport policy as an “isolated holdout, denying what is universally acknowledged, to the detriment of a right that a duly enacted law gives to American citizens.”
The Zivotofskys’ attorneys noted in court filings that the State Department has acknowledged inadvertently issuing passports with Israel as the birthplace to citizens born in Jerusalem and that there had been no harm done to U.S. foreign policy interests.
But the court said it found compelling the State Department’s position that the “reversal of United States policy” could “provoke uproar throughout the Arab and Muslim world and seriously damage our relations.”
The court’s opinion cited submissions from the department that argued the law “runs headlong into a carefully calibrated and long-standing executive branch policy of neutrality toward Jerusalem.”
Since Israel’s creation in 1948, Henderson wrote, U.S. presidents have “steadfastly declined to recognize any foreign nation’s sovereignty over that city.” The executive branch has made clear that the status of Jerusalem must be decided not unilaterally by the United States but by all the relevant parties.
In March 2012, the Supreme Court sent the case back to the D.C. Circuit, ruling in an 8 to 1 decision that the lower court could rule on the constitutionality of the law. The appeals court had earlier dismissed the case, writing that it posed a political question beyond the scope of the court’s authority.

Thursday, July 18, 2013

Florida had first Stand Your Ground law, other states followed in 'rapid succession'

By Elizabeth Chuck, Staff Writer, NBC News

In speaking out against "Stand Your Ground" self-defense laws this week, Attorney General Eric Holder criticized legislation that has been enacted in some two dozen states and has been backed by powerful gun lobbyists since the first such law was passed in Florida in 2005. 
Stand Your Ground laws — sometimes referred to as "Shoot First" laws by detractors — change the legal definition of self-defense for citizens who feel they are being confronted with deadly force or imminent danger. They have been part of the public discussion around the George Zimmerman trial; although the legal team arguing on behalf of the man who was found not guilty of shooting Trayvon Martin did not ask for an immunity hearing under the law, the instructions given to the jury borrowed language from the statute.
Normally, a citizen has a duty to retreat when confronted with what they perceive to be deadly force. The Stand Your Ground doctrine mostly removes that, meaning citizens who feel threatened are no longer required to try to quell a situation first before having the right to use deadly force in self-defense.
With major support from the National Rifle Association under a Republican state legislature during Gov. Jeb Bush's administration, Florida became the first state to enact a Stand Your Ground law on Oct. 1, 2005. Since then, Stand Your Ground law has been invoked in more than 200 cases in Florida where charges were dismissed or defendants were acquitted or not charged at all, according to The Tampa Bay Times.
There are three parts to Florida's Stand Your Ground law. It states that a person is presumed to have reasonable fear of imminent death or great bodily harm when using defensive force if an intruder has broken into his or her home or vehicle and is justified in using force; it states that a person does not have a duty to retreat if he or she believes death or bodily harm is imminent; and it provides immunity from criminal prosecution and civil action for justifiable use of force.
What made it such radical legislation was the automatic presumption of reasonable fear. Inside Florida homes and cars, it overrode previous self-defense laws that required proof that an individual felt a reasonable enough level of fear to use self-defense.
Florida as a model
In other states, "Stand Your Ground" laws are strikingly similar to Florida's.
"The biggest difference in any of the laws are where they have the right to defend themselves. Some require that you be in your home or your car. Some have expanded that to say you can just be on the street corner," said Ryan Sibley, a writer and researcher at the non-profit think tank Sunlight Foundation.
Here are several other notable Stand Your Ground differences by state, as well as some court cases where it's been applied:
Texas: A person can only use Stand Your Ground if they have the right to be present at the location where the deadly force is used, and has not provoked the person against whom the deadly forced is used.
In November 2007, Joe Horn, 61, of Pasadena, Texas, saw two burglars break into his neighbors' home, according to The New York Times. He grabbed his shotgun and called 911, offering to the 911 operator, "I've got a shotgun; do you want me to stop them?" Despite the emergency operator telling him no, he allegedly went over and killed the two men. Horn claimed self-defense and wasnot indicted when he went before a grand jury.
North Carolina: Exceptions to the use of deadly force as listed in North Carolina's law are against police officers or law enforcement, bail bondsmen and landlords. Stand Your Ground passed in North Carolina in 2011. 
Kansas: Kansas' Stand Your Ground law specifies the person can't be engaged in illegal activity while defending him or herself. The law, enacted in 2006, has rarely been applied in Kansas, The Wichita Eagle notes. 
Louisiana: Byron Thomas, 21, of Lafourche Parish, La., was cleared by a grand jury in the death of 15-year-old Jamonta Miles in February 2012 because he claimed he acted in self-defense when he shot an SUV the boy was in. The two may have been in rival gangs, according to Louisiana's HoumaToday.com; Thomas fired on the vehicle after getting into an argument while trying to buy marijuana. Louisiana's Stand  Your Ground law passed in 2006.
Arizona: In April 2012, Cordell Jude, 22, was driving in Phoenix when Daniel Adkins Jr. walked in front of him with his dog. "Watch it!" Jude yelled to Adkins, who was mentally disabled, according to USA TODAY. Adkins then swung what looked like a pipe in the air and Jude shot and killed him — the pipe-like object turned out to just be a dog leash. Jude claimed self-defense; he remained free for three months, but now faces second-degree murder charges and is set to go to trial next month, according to the Maricopa County Sheriff's office. The Arizona Stand Your Ground law passed in 2010.
Oklahoma: In 2010, Carl England of Tulsa was shot in the chest and killed after attacking another man he accused of breaking into his daughter's apartment. His killer, Pernell Jefferson, 37, was not charged with the murder, due to Stand Your Ground, but is serving a six-year sentence on a weapons charge, according to The Associated Press. Oklahoma enacted its Stand Your Ground law, which closely mirrors Florida's, in 2006.
Georgia: John McNeil hired Brian Epp, a construction company owner, to build a new house for him in Cobb County, Ga., in 2005. In December 2005, McNeil's son got into an argument in the backyard with Epp, who allegedly pulled out a pocketknife. Upon hearing this, McNeil rushed home and fired a warning shot with his gun, reported Salon.com. But Epp charged toward him, allegedly reaching for his pocket knife again. McNeil fired another shot, this time hitting Epp in the head and killing him. In 2006, despite the state passing a Stand Your Ground law earlier in the year, McNeil was sentenced to life in prison, which was later reduced after he pleaded guilty to the lesser charge of manslaughter.
The laws' origins
Many of the 20-plus states that have this type of legislation passed it quickly after Florida did.
"It happened very, very quickly, in rapid succession," said Jeannie Suk, a Harvard law professor who has written extensively about self-defense and criminal law. "The National Rifle Association at the time stated its intention to do it in Florida and then use it as a jumping-off point for a sweeping change in self-defense law across the country. They were not at all shy or apologetic about that. This was the goal." 
The laws, while less than a decade old, are steeped in centuries-old principles.
"There's a lot of misperception right now going on about these Stand Your Ground laws, as if they sprung out of nowhere, with no precedence or no history to them," Suk said.
In fact, they have their foundation in the Castle Doctrine — a 17th century English common law that was eventually brought to all states in the U.S. — which says that if an intruder breaks into an individual's home, the individual is not obligated to try to retreat before defending him or herself with force.
Everywhere else, according to the Castle Doctrine, individuals can use deadly force to defend themselves only after retreating as far as possible — "the phrase was to the wall at one's back," said Suk — with the idea being that in a public place in the 1600s, the king and his men were supposed to keep the peace while all other people stepped aside. But at home, or inside the castle, deadly force without retreating first was allowed.
"In no states were you obligated to try to retreat from your home if attacked in your home," Suk said. "Both in England and when it was transplanted to the U.S., every single state said you didn't have to retreat from an intruder."
But, she added, that doesn't mean one is excused from the requirements of the regular self-defense law, which generally requires citizens show they're in reasonable fear of serious bodily injury or death that is imminent.

Monday, August 22, 2011

Sunshine State Shakeup: Is Florida's Drug Law Unconstitutional?

Sunshine State Shakeup: Is Florida's Drug Law Unconstitutional?
floridaYou might think that, by now, the constitutionality of all 50 states’ drug laws would have long-been settled. After all, the drug laws have mostly been on the books for several decades, and there’s really never been a shortage of people who would have been well-served by seeing a drug law shot down.
But down in Florida, there’ve been a spate of challenges to one of the state’s key drug laws. And at least two of them have been successful. The result, as I write in Monday’s WSJ: confusion among lawyers and possibly thousands of convictions ultimately being overturned.
To win a conviction under the drug laws of most states, a prosecutor has to convince a jury that the defendant knew he owned or sold an illicit substance. But in 2002, Florida became the only state in the country to do away with the “knowledge requirement” in its main drug law.
A federal judge in Orlando was the first to strike a blow to the law late last month, ruling that a central part of Florida’s Drug Abuse Prevention and Control law violated the 14th Amendment’s Due Process Clause.
Then, last week, a state judge in Miami cited Judge Scriven’s opinion in overturning the drug-distribution convictions of 39 defendants. Judge Milton Hirsch acknowledged that the “overwhelming majority” of the 39 defendants “may have known perfectly well that their acts of possession or delivery were contrary to law.” Nevertheless, he shot down the law on grounds that it “reaches beyond those who willfully do wrong. . . and includes within its wingspan those who meant no wrong.”
The office of the Florida Attorney General, Pam Bondi, has filed notices of appeals in both cases. “This decision conflicts with binding state court precedent upholding Florida’s drug law,” said Bondi, shortly after Judge Hirsch issued his ruling on Wednesday. “This decision is flawed and it unduly hinders prosecutors’ efforts to keep criminals off our streets.”
The issue will likely be settled by a higher court—the Florida Supreme Court, the 11th U.S. Circuit Court of Appeals or, possibly, the U.S. Supreme Court. It is unlikely that Florida will see a mass exodus of its prison population until then.
But if the key part of the law is ultimately struck down, “it could get pretty chaotic,” said James Felman, the lawyer for Mackle Vincent Shelton, whose conviction Judge Scriven overturned.
According to the Florida Department of Corrections, nearly 94,000 people have been sent to state prisons for drug crimes since the start of 2002. Jo Ellyn Rackleff, a department spokeswoman, said most of them were convicted under the Drug Abuse Prevention and Control law.

Tuesday, August 9, 2011

American Bar Association urges Congress to reject birthright law

American Bar Association urges Congress to reject birthright law

TORONTO — The American Bar Association passed a resolution Tuesday urging the U.S. Congress to reject any changes to the Constitution that would eliminate automatic citizenship for anyone born in the United States.
About 400 members of the attorneys association, which is holding its annual meeting in Toronto, passed the resolution in a voice vote.
Some Republican lawmakers have called for legislation to repeal birthright citizenship and have proposed a constitutional amendment.
Outgoing American Bar Association President Stephen Zack said in an interview that racism is underlying the call to change the constitution. Zack, the first ABA president of Hispanic origin, said it was an important statement by the American Bar Association that the U.S. Constitution must be respected.
“This is something that should be avoided at all costs,” Zack said. “Certain issues are not really about what the words are about, but what the underlying concerns are about.”
The ABA debated the issue last week ahead of Tuesday’s vote.
John Eastman, a conservative law professor at Chapman University in Orange, California, argued that it’s an open question whether the citizenship clause of the Fourteenth Amendment allows for citizenship for anyone born in the U.S. and said it’s time for the U.S. Congress to clarify the issue.
Eastman challenged a claim before the Supreme Court that Yaser Esam Hamdi, who was seized by U.S. troops on the Afghanistan battlefield in 2001, was a citizen because he was born in Louisiana while his Saudi parents were in the U.S. on a temporary work visa.
Eastman called it odd that a man who had little connection to the U.S. could be considered a U.S. citizen. The Supreme Court ruled in 2004 that Hamdi had the right to use U.S. courts to challenge his detention.
Thomas Saenz, president of the Mexican American Legal Defense and Educational Fund, which is based in Los Angeles, said the Latino community is most at issue in discussions about citizenship by birth and said it’s hard not to see that the reinvigorated debate is really about opposition to demographic changes.
Saenz said the issue is closely tied to the efforts by some states, such as Arizona, to limit immigration.

Monday, August 8, 2011

Overriding a Key Education Law

Overriding a Key Education Law

Secretary of Education Arne Duncan has announced that he will unilaterally override the centerpiece requirement of the No Child Left Behind school accountability law, that 100 percent of students be proficient in math and reading by 2014.

Mr. Duncan told reporters that he was acting because Congress had failed to rewrite the Bush-era law, which he called a “slow-motion train wreck.” He is waiving the law’s proficiency requirements for states that have adopted their own testing and accountability programs and are making other strides toward better schools, he said.

The administration’s plan amounts to the most sweeping use of executive authority to rewrite federal education law since Washington expanded its involvement in education in the 1960s.

Conservatives said it could inflame relations with Republicans in the House who want to reduce, not expand, the federal footprint in education. But Mr. Duncan and White House officials described their plan as offering crucial relief to state and local educators as the No Child law, which President George W. Bush signed in 2002, comes into increasing conflict with more recent efforts to raise academic standards.

The law made its focus the use of standardized test scores in schools, particularly those serving minority students.

“I can’t overemphasize how loud the outcry is for us to do something right now,” Mr. Duncan told reporters on Friday in a conference call that he said could not be reported until midnight Sunday.

Melody Barnes, director of President Obama’s White House Domestic Policy Council, who joined Mr. Duncan in the announcement, said that all states would be encouraged to apply for waivers from the law’s accountability provisions, but that only states the administration believed were carrying out ambitious school improvement initiatives would get them.

“This is not a pass on accountability,” Ms. Barnes said. “There will be a high bar for states seeking flexibility within the law.”

Under the current law, every school is given the equivalent of a pass-fail report card each year, an evaluation that administration officials say fails to differentiate among chaotic schools in chronic failure, schools that are helping low-scoring students improve, and high-performing suburban schools that nonetheless appear to be neglecting some low-scoring students.

About 38,000 of the nation’s 100,000 public schools fell short of their test-score targets under the federal law last year, and Mr. Duncan has predicted that number would rise to 80,000 this year.

Skeptics said Mr. Duncan’s predictions were exaggerated, but a huge number of schools are falling short under No Child’s school rating system. Eighty-nine percent of Florida’s public schools, for instance, missed federal testing targets, although 58 percent of Florida schools earned an A under the state’s own well-regarded grading system.

When Mr. Duncan sketched an outline of the administration’s waiver plan in June, Representative John Kline, the Minnesota Republican who is chairman of the House education committee, demanded that Mr. Duncan show by what legal authority he would override the federal law. Mr. Duncan responded by citing provisions of the No Child law itself that give the education secretary broad waiver powers.

On Friday, Mr. Kline said in a statement, “I remain concerned that temporary measures instituted by the department, such as conditional waivers, could undermine” efforts by Congress to rewrite the law.

Mr. Kline’s committee has completed three overhaul bills focusing on elimination of federal programs, financial flexibility for states, and charter schools. But the committee has not yet produced bills rewriting the law’s crucial school accountability and teacher effectiveness provisions.

Senator Tom Harkin, the Iowa Democrat who is chairman the Senate education committee, said he understood why Mr. Duncan was pursuing the waiver plan, since “it is undeniable that this Congress faces real challenges reaching bipartisan, bicameral agreement on anything.”The No Child Left Behind law is the latest version of the Elementary and Secondary Education Act, a 1965 law that over the years has become the main federal law on public schools. It has been rewritten in ways that have allowed nearly every president since its original architect, Lyndon B. Johnson, to put his policy stamp on it, usually in the first term. That has eluded President Obama so far, despite his campaign pledges to fix the law’s flaws.

In Friday’s conference call, Mr. Duncan and Ms. Barnes said theDepartment of Education would issue guidelines next month inviting states to apply for the waivers. For a waiver to be approved, they said, states would need to show that they were adopting higher standards under which high school students were “college- and career-ready” at graduation, were working to improve teacher effectiveness and evaluation systems based on student test scores and other measures, were overhauling the lowest-performing schools, and were adopting locally designed school accountability systems to replace No Child’s pass-fail system.

Those requirements match the criteria the administration used last year in picking winning states in its two-stage Race to the Top grant competition. Ms. Barnes said states would not be competing against one another with their waiver applications. But the similarity irked critics.

“It sounds like they’re trying to do a backdoor Round 3 of Race to the Top, and that’s astonishing,” said Frederick Hess of the American Enterprise Institute. He called Mr. Duncan’s plan “a dramatically broad reading of executive authority.”

The plan appears likely to gain broad support from state education officials, however. More than a dozen states have already asked the department for changes to their No Child school accountability plans, or are about to do so, said Gene Wilhoit, executive director of the Council of Chief State School Officers. “Many states feel that we need major changes in the law, because it’s identifying such an outlandish number of schools that it’s losing credibility,” he said.

The law allowed states to adopt local academic standards and determine their own passing scores on tests after it took effect in 2002. The requirement that 100 percent of students be proficient in math and reading by 2014 encouraged lower standards, which make it easier for more students to score as proficient. Since early 2010, however, more than 40 states have agreed to adopt higher standards, and the 2014 deadline is complicating their efforts, Mr. Duncan said.

In Tennessee, for instance, 91 percent of students scored at or above the proficient level in math under the state’s old standards, but under new, tougher standards adopted recently, the proportion plummeted to 34 percent.

“The current law serves as a disincentive to higher standards, rather than as an incentive,” Mr. Duncan said.

Friday, August 5, 2011

New York State Bar Prez Says Law Students Need Better Training

New York State Bar Prez Says Law Students Need Better Training

The debate about whether law schools should focus more on preparing their charges to actually practice law, rather than to merely think like lawyers, continues to rage.
At an American Bar Association meeting in Toronto, the New York State Bar Associationpresented the ABA with a resolution, urging the ABA to emphasize the importance of teaching practice skills to law students, according to this report in the New York Law Journal. (HT:  ABA Journal.)
The New York bar is asking the national bar to evaluate its legal education standards with a view toward “enhancing clinical work and supervised activities such as meeting with clients inside and outside the clinical setting and in court,” according to the NYLJ.
“Legal education should have more of an emphasis on making sure graduates are ready to practice law,” New York State Bar President Vincent E. Doyle III told the NYLJ. “It is something that has been de-emphasized, and it shows. Our research and our own experience show that graduates are less prepared to practice law.”
Here’s a WSJ report last month by our own Patrick Lee about how some law schools are answering the call to emphasize the practical over the theoretical.
Richard A. Matasar, dean and president of New York Law School, agrees with the view that graduates need to be more practice ready, the New York Law Journal reports.
“There is going to be a push toward more practice readiness at most law schools,” he said. “It is driven by the market. We need to send our graduates out in a way that makes them more effective, and the schools recognize that.”

Thursday, August 4, 2011

ACLU might sue over law limiting teachers' Facebook use

ACLU might sue over law limiting teachers' Facebook use
By Brendan Sasso

The American Civil Liberties Union of Eastern Missouri is considering suing the state over a new law that prohibits teachers from sending private message to students on social-networking sites such as Facebook.

"I do think there are First Amendment issues with the law," said Tony Rothert, legal director for the ACLU of Eastern Missouri.The Amy Hestir Student Protection Act, signed into law last month by Gov. Jay Nixon (D), bans teachers from establishing an Internet site "which allows exclusive access with a current or former student."

GOP State Sen. Jane Cunningham, the author of the law, said it is designed to prevent teachers from having inappropriate contact with students. She also noted the law defines a "former student" as a person who is 18 years of age or younger, who has not graduated.

Cunningham told The Hill she wants to encourage teachers to help students outside of the classroom, but an epidemic of sexual misconduct by teachers in Missouri and around the country convinced her of the need to keep teacher-student communications public.

According to Cunningham, many inappropriate relationships between teachers and students begin with private electronic communications.

She said the law is not intended to prevent teachers from establishing social-media profiles or even from being "friends" with students on social sites — only from sending them private messages.

"A good teacher who is really working with a student in an appropriate way, they are going to welcome parents and department heads being able to see the good work they're doing," Cunningham said.

Rothert of the ACLU said the way the law is written, it might prevent teachers from even establishing Facebook accounts.

"The law is much broader than what it's supposed to do," Rothert said.

Even if the law is rewritten to ban only private communications between students and teachers, Rothert said he would still be concerned that it violates the First Amendment's free-speech protections.

"I think the people who wrote the law don’t understand how Facebook works, or more broadly, how the Internet works," Rothert said.

According to Rothert, any measure that curbs free speech must be narrowly tailored to address a problem.

"It's fairly easy to conceive of ways that this could be much more narrow," he said.

Facebook is also investigating the legality of the law.

"Every day, there are more stories of innovative teachers using social networks as a valuable educational tool — from answering simple homework questions online to helping identify bullying," a Facebook spokesman said. "It is imperative that this law does not limit schools' and teachers' ability to use technology in this way to educate Missouri's children, and we are working with the education and legal communities to investigate."

The law requires school districts to create rules for the use of other "electronic media" that are at as least as stringent as the rules for social-networking sites.

Rothert said this provision might ban emails or text messages between students and teachers.

Rothert said he hopes to convince the legislature to revise the law or to work with school districts to implement the requirements in ways that do not infringe upon the First Amendment rights of teachers and students.

But if those efforts fail, Rothert said, the ACLU is prepared to go to court over the issue.