Archive for December, 2006

How Federal Common Law was Derailed by Justice Brandeis in Erie v. Thompkins

Sunday, December 31st, 2006

Joanne Tetlow, J.D., Ph.D.  December 30, 2006
One dark night while walking along a railroad track, Harry J. Tompkins was struck by a projectile from a passing train. Tompkins, who resided in Pennsylvania brought an action for negligence in the federal court for southern New York, the state of incorporation for the Erie Railroad. There were different standards of care for Tompkin’s action in Pennsylvania and New York.
 If the case was tried in Pennsylvania state court or federal court, Pennsylvania common law would be applied classifying Tompkins as a “trespasser� making the Erie liable only if its negligence was wanton or willful. If the case was tried in New York federal court, federal common law would be applied making the Erie liable for any “negligent� injury.
 Pennsylvania, located in the Third circuit, deferred to state common law while New York, located in the Second Circuit, permitted wider use of federal common law; consequently, Tompkins chose to file suit in the federal court of New York. On appeal, the Circuit Court of Appeals in New York upheld the lower federal court’s jury award of $30,000 stating that, “It was unnecessary to consider whether the law of Pennsylvania was as contended, because the question was one not of local, but of general law and that ‘upon questions of general law the federal courts are free, in absence of a local statute, to exercise their independent judgment as to what the law is.’�
By applying the Swift doctrine, the Circuit Court could ignore the Pennsylvania case cited by the Erie which classified Tompkins as a trespasser. The Erie argued that this Pennsylvania case applied pursuant to § 34 of the Judiciary Act of 1789. The United States Supreme Court granted certiorari “because of the importance of the question whether the federal court was free to disregard the alleged rule of the Pennsylvania common law.�
The constitutionality of Swift v. Tyson was not an issue in the case. The Erie had argued that the lower federal court misinterpreted § 34 of the Judiciary Act of 1789 by not applying Pennsylvania law. Neither party to the case challenged the constitutionality of Swift; yet, Brandeis ruled Swift unconstitutional when it was not a legal issue before the Supreme Court.
 I submit that what animated and motivated Brandeis to overturn the Swift doctrine of federal general common law was his political Progressivism. Thus, Brandeis’s decision in Erie to overturn the Swift doctrine of federal common law was not an act of “independent” judicial interpretation, but a judgment based on his political Progressivism. To understand Erie is to understand Brandeis’s political Progressivism.
Justice Louis Dembitz Brandeis (1856-1941), appointed in 1916 by President Woodrow Wilson (1856-1924), served as the first Jewish justice on the Supreme Court from 1916-1939, the years when Progressivism was challenging the conservative Republicanism of yesterdays gone by. Erie v. Tompkins, 304 U.S. 64 (1938) stands for the principle that there is no federal “generalâ€? common law. Overturning the longstanding principle of federal general common law articulated in Swift v. Tyson, 41 U.S. 1 (1842), Erie represented a shift in the balance of power between the federal and state governments and between the federal judiciary and Congress. Erie was Brandeis’s opinion and Brandeis’s judicial philosophy. As Edward A. Purcell, Jr., in his book, Brandeis and the Progressive Constitution: Erie, the Judicial Power, and the Politics of the Federal Courts in Twentieth-Century America (2000), referring to Brandeis states, “Erie was, perhaps to an unusual degree, a decision of the Supreme Court that embodied the well-considered and fundamental constitutional theory of only a single justice.” In Erie, Brandeis unequivocally states that, “There is no federal general common law.â€?
Because of the nationalization of American industry, capital, and labor during the Progressive Era, federal common law was a major issue swirling around the judicial and legislative branches. The Progressive values that Brandeis cherished had been and were being undermined by an anti-Progressive national judiciary who was declaring many congressional regulatory laws unconstitutional. This situation was exacerbated by big business’s removal of cases to federal courts under the diversity jurisdiction granted by the Judiciary Act of 1789. Federal common law had been favorable to corporations.
 Brandeis disdained corporate power and its ability to manipulate and subvert the common man. There had been failed attempts by Congress to restrict diversity jurisdiction. Brandeis supported all of these bills; he wanted diversity jurisdiction to be abolished. So much so that when Erie came along in 1938, Brandeis was ready to make his decisive move of overturning 96 years of court precedent, something that hitherto had never been done.
Congress had failed to resolve the problem of federal general common law. Now, it was Brandeis’s opportunity to stop what he perceived as a central evil, the “curse of bigness.� And, even though the Erie railroad corporation lost the case, the grounds on which it did so was what Brandeis wanted to correct—federal general common law.
To obtain remainder of essay, please go to my website:
Other topics by Dr. Tetlow
The Consoling Power of St. Augustine
The Statesman vs. The Orator: Plato on Political Debate
Elections 2006 – Consider the Unadjusted “Man”
Machiavelli’s Political Realism: Power and Its Immoral Uses
The Horror of Frankenstein: Man Without Limits
Wilson’s legacy: Political Progressivism and Pragmatism
Plato’s Philosopher-King: A Guide to the 2006 Elections

also see:


By William R. Adkins

     Two Associate Justices of the United States’ Supreme Court were central figures in an issue influencing the development and growth of business across the United States for ninety-six years. Joseph Story [b. 1779 d. 1845; Supreme Court Tenure=1811-1845] and Louis Brandeis [b. 1856 d. 1941; Supreme Court Tenure =1916-1939] were prominent as legal scholars and as members of the United States Supreme Court during their lifetimes; each left a legacy of that scholarship and had an impact on American law few have rivaled. The question of the existence of a general federal civil common law joins the two men in legal history. Their respective decisions, Swift v. Tyson [16 Peters 1 (1842)] by Story and Brandeis’s Erie Railroad Company v. Tompkins [64 U.S. 304 (1938)], represent a historic sequence, culminating with the latter case, in which the Supreme Court directly reversed for the only time in history an entire earlier decision [Swift] of that body by declaring that finding unconstitutional.(1)

     Nearly two centuries earlier, in 1774, John Adams, patriot and future President of the United States, had written: “How then do we New Englanders derive our laws? I say not from Parliament, not from the common law; but from the law of nature and the compact made with the king in our charter. “(2) Brandeis believed that “To study law … is necessary to understanding our own and British history.”(3) Modern legal scholar Roscoe Pound thought that English North American colonists brought the mother country’s common law principles, as espoused by Sir Edward Coke and other prominent barristers and legal scholars, to America. Seventeenth- and eighteenth-century political events in England, including the Civil War of the 1640s, the Restoration, the Glorious Revolution, and the Hanoverian ascension, were influential but nonetheless substantially isolated from developments with England’s North American possessions. The latter enjoyed considerable autonomy as they built their institutions, legal and otherwise, on the models they knew and preferred.(4)

     Joseph Story was the product of a prominent family in England’s most rebellious New England province, Massachusetts. Story’s father was a member of the Sons of Liberty, a participant in the Boston Tea Party, and a veteran of the American Continental Army.(5) When Story, at age thirty-two, became the youngest Associate Justice of the United States Supreme Court in 1811, the new American states had already chosen to receive and adopt, to one degree or another, the common law of the parent country. Joseph Story would spend a large part of his life and labor in developing a system of American general federal civil common law from it.(6)

     The economic system of an independent United States necessitated the establishment of financial institutions, the passage of trade legislation, and the regulation of currency. Resulting conditions enabled some to take advantage of the system and shape it to their own interests.(7) In nineteenth-century America, law had gradually undergone transformation from a force of stability and ethics, symbolic of order and strength, to a tool by which activist business, legal, and political groups could pursue their own self interests. Accordingly, the entrepreneurial groups could corner various economic resources and do so with the force of law.(8) By the late 1830s and early 1840s, however, America was suffering from the effects of a financial panic. The Supreme Court was pressed by business and government leaders to assert itself and clarify Section 34 of the Judiciary Act of 1789, which, to some, had become an obstacle to reversing the ensuing crisis.(9) Section 34 of that act read:

The laws of the several states, except where the Constitution, treaties, or statutes of the United States shall otherwise require or provide, shall be regarded as rules of decision in trials at common law in the courts of the United States in cases where they apply.(10)

     Into this situation appeared a controversial case ultimately decided by Justice Story. Swift v. Tyson [hereafter cited Swift] was the case of a bill of exchange allegedly obtained by fraud and accepted by the plaintiff, Joseph Swift, a Maine bank cashier, as payment of a prior debt by a third party.(11) Two land speculators, Nathaniel Norton and Janus Keith, obtained the bill of exchange from one George Tyson of New York. Tyson was but one of many partners Norton and Keith had sought as financial backers in a land purchase scheme in Maine. After suffering business reverses, Norton and Keith fled New York to escape the consequences of fraud charges. Once they discovered the scheme, their partners let it be known to Wall Street they would not cover the bills of exchange. The partners minimized their losses, but George Tyson was placed in the position of having to cover his bill of exchange when it was endorsed by Norton to Joseph Swift, making Tyson a debtor to Swift.(12)

     It once was a common saying in the nineteenth-century west that “a draft on Chicago drawn in Omaha and put through the usual course of collection was subject to three different laws,” those of the different states.(13) Congress had always required the federal courts to apply state law in diversity cases, those cases involving more than one state.(14) Swift provided Story and other Supreme Court justices an opportunity to interpret Section 34 and construct a new doctrine, one that might aid the young American economy.(15)

     In his written opinion, Story made a distinction between “state laws strictly local” and “general commercial law.”(16) The first concerned real estate, immovable property, and was subject to local law. Federal courts were bound by state law in questions involving diversity. General commercial law was not subject to local statutes because it involved mobile property, such as valuable paper. Story conceived of commercial law as law which the judge might discover utilizing common law principles.(17) Applying this reasoning, Story ruled that federal courts could adhere to their own concept of law in diversity litigation.(18) In Swift and other cases between 1842 and 1856, the Court formed a “uniform and consistent general commercial jurisprudence” utilizing existing mercantile principles and customs.(19) Under common law principles, the federal court was free to meet the expectations of those who operated under those mercantile customs and obligated to protect same from local custom or judiciary officials who might interfere in those “reasonable anticipations. “(20) Story believed his approach would result in uniformity because state systems would allow federal judges to construct a predictable body of law.(21)

     Instead of a uniform commercial law approach under the Swift doctrine, two separate legal systems arose to deal with local affairs. One was state and the other, federal.(22) Story’s ruling advanced central federal authority to the detriment of states’ rights and separated the states from each other and, as a group, from the federal government as components and jurisdictions.(23) An attorney preparing for a case could not be certain in which forum, state or federal, it might be tried; nor could he, because of this, predict which issue would be questioned or which rules might be invoked. Uniformity was not the result of Swift.(24) Instead, injustice could occur, depending on which level of government possessed jurisdiction.(25)

     After the War between the States, the Court included municipal bonds and torts in the Swift doctrine. This had the effect of further blurring the line between general and local law and caused federal judges to intrude into areas previously under state jurisdiction. The confusing result inspired corporations wanting to avoid restricting state laws to move their disputes to federal courts.(26) Under Swift, federal courts utilized a legal fiction in any dispute involving diversity jurisdiction to recognize a corporation as a citizen of the state in which it was incorporated. This allowed businesses to seek out judges who might view their case kindly and grant a favorable result. Additionally, corporations could move their litigation to remote and inconvenient courts to make it difficult for opponents to attend the proceedings.(27)

     Swift was the most used antebellum Supreme Court decision in the decades after the War.(28) Rural to urban migration, population growth, and the extension of the railroads had profound effects on the economy. Prices fell, and producers became creative in methods for influencing pricing and production. Utilizing trusts, holding companies, and other tools, producers pursued their objectives. They eliminated the small middlemen as they built their own distribution networks. This resulted in fewer but larger businesses. Holding companies were attracted to states with laws permitting their formation, generally prohibited under the states’ common law. This arrangement allowed a firm to possess stock in businesses in other states and gave direct control of those assets to a board of directors. This also allowed greater utilization of diversity jurisdiction.(29)

     By the early years of the twentieth-century, twenty-eight categories of business disputes existed in which state and federal courts applied different rules.(30) Federal and state legislators moved to regulate business and transportation as interstate businesses were caught in confusing and often contradictory systems.(31) The Swift doctrine came under attack by states’ righters as a violation of the Tenth Amendment, which reserved certain powers to the states, and by lawyers as a source of confusion.(32)

     In a railroad tort case in 1893, Associate Justice Stephen Field argued that Swift was a method by which judges made law unconstitutionally, even when considering “… the great names [Story] which may be cited in favor of the doctrine.”(33) Associate Justice Oliver Wendell Holmes, Jr., believed the Court’s function was to protect free trade and communication between and among states, not the protection of property or business within any state.(34) In 1927, Holmes dissented in Black & White Taxicab & Transfer Company v. Brown & Yellow Taxicab & Transfer Company [276 U.S. 518, 532], a case in which one of the companies had incorporated in a different state to take advantage of diversity jurisdiction. Holmes criticized the manipulation of the systems to move the case to federal courts and wrote, “… what I think the fallacy is … the often repeated proposition of this and the lower courts … that the parties are entitled to independent judgment on matters of general law.” Associate Justice Louis Brandeis joined Holmes’ dissent.(35)

     In a letter in 1929 Holmes wrote,

I think our court has fallen into the error… is that … the common law is not a brooding omnipresence in the sky… The common law in a state is the common law of that state deriving all its authority from [that] state ….

     Holmes believed the court erred in supporting federal circuit courts’ use of independent judgment to discover common law in states so they could ignore the state supreme courts. This, he believed, allowed the judges power to make law rather than function as “… simply directors of a force that comes from the source that gives them their authority. “(36)

     In Kuhn v. Fairmont Coal Company [215 U.S. 349,370 (1910)], a case in which the Court reversed a West Virginia state supreme court ruling, Holmes dissented. He asserted that federal judiciary did not possess the power to ignore state law under any circumstances.

It is said that we must exercise our independent judgment – but as to what? Surely as to the laws of the States.. When we know what the source of the law has said that it shall be, our authority is at an end. The law of a State does not become something outside of the State court and independent of it by being called the common law. Whatever it is called it is the law as declared by the state judges and nothing else.(37)

     Holmes once said of Louis Brandeis,

…I should say that he always desires to know all that can be known about a case where as I am afraid that I wish to know as little as I can safely go on. He loves facts and I hate them except as the necessary peg to hang generalizations on.(38)

     Holmes and Brandeis maintained that Story’s decision in Swift utilized an incorrect misinterpretation of Section 34.(39)

     In 1938 Brandeis was presented with an opportunity to destroy what Story had fashioned in 1842, producing the ninety-six year-old legacy of state-federal relations.(40) While walking along the Erie Railroad’s tracks in Pennsylvania, Harry Tompkins was struck by the door of a passing freight train. A Federal District Court judge in New York had instructed a jury in the accepted fashion under the Swift doctrine. The result was a $30,000 award for Tompkins. The railroad appealed, maintaining Pennsylvania law perceived Tompkins as a trespasser and did not deem him eligible to win damages in such a case. The Court prepared to “… blow a doctrine that never should have been into kingdom come. “(41) Chief Justice Charles Evans Hughes wrote, “If we wish to overrule Swift v. Tyson here is our opportunity.”(42) Swift had become the target of legislation and had been under attack for decades. Applied for almost a century, the doctrine had become notorious.(43)

     Brandeis was assigned the case by Hughes.(44) Brandeis chose to question Story’s interpretation of Section 34, accepting the authority of Charles Warren, a legal scholar who had found the original draft of Section 34 authored by Oliver Ellsworth. In it, the word “law” had replaced the words “statute law.”(45) Warren reasoned from this discovery that Ellsworth’s original intent was for federal courts to “follow state court decisions as well as state statutes… “(46) Brandeis did not base his decision on Warren’s interpretations, but he utilized, as was his practice, law review articles to substantiate his views. In Erie Railroad Company v. Tompkins [hereafter cited Erie], Brandeis cited twenty-eight such articles, though he did not overtly refer to them in his decision. This was in deference to fellow Associate Justice, the irascible James McReynolds, who did not, as Brandeis put it, ” favor Law Review citations.”(47)

     Brandeis wrote his opinion for a five judge majority and cited the repeated criticisms of the Swift doctrine and its “prerogative power.”(48) Brandeis held that the federal judiciary had acted in an unconstitutional manner for nearly a century by misinterpreting Section 34 to allow independent judgment in cases involving diversity jurisdiction.(49) Brandeis concluded, utilizing Warren’s work and previous dissents by Field and Holmes, as well as the law review articles critical of Story’s decision, that Story’s interpretation of Section 34 allowed for the usurpation of powers reserved to the states, led to “forum shopping,” and was otherwise unsupported in endowing the federal judiciary independent judgment.(50)

     Under advice from Associate Justice Harlan Fiske Stone, Brandeis emphasized that Swift was unconstitutional. Stone believed the only possible rationale for repudiating Swift was unconstitutional action by the Court itself.(51) Brandeis’s opinion stated,

There is no federal general common law. Congress has no power to declare substantive rules of common law applicable in a state whether they be local in their nature or “general,” be they commercial law or a part of the law of torts. And no clause in the Constitution purports to confer such a power upon the federal courts.(52)

Brandeis’s opinion did not allow Congress the authority to define law applied in diversity cases and federal courts could no longer use independent judgment to discover law.(53) The ruling necessarily excepted situations involving federal and constitutional questions.(54)

     Erie was not widely noted in the press. Journalist Arthur Krock wrote, “If the Supreme court, like so many other arms of the government, had a publicity agent eight days would not have passed before the importance of its decision in the Tompkins case became known … .”(55) In this manner, Erie eliminated nearly a century of labor in the construction of general law using independent judgment.(56) The decision restored states’ authority taken by Swift. In citing Story’s interpretive error as applied to Section 34 the court made a correction that reversed, surprisingly, a ninety-six year old precedent that had not been questioned by any attorney.(57)

     Associate Justice William 0. Douglas noted years later that,

… the Court never had hesitated to overrule a constitutional adjudication. … The question was not whether the case was too old to overrule; the overriding consideration was whether the old interpretation suited modern need, modern problems.(58)

Joseph Story was a professional man of his time, and he applied law in the context of his period. Nearly a century later, in 1938, Louis Brandeis worked his way through a similar process, and Joseph Story’s decision of 1842 failed the test of time.


1. Alfred H. Kelly, et al., The American Constitution: Its Origin and Development, 7th ed. (New York: W.W. Norton, 1991), 506.

2. Roscoe Pound, “The Place of Judge Story in the Making of American Law,” The American Law Review 48 (1912): 691.

3. Richard A. Cosgrove, Our Lady the Common Law: An Anglo-American Legal Community. 1870-1930 (New York: New York University Press, 1987), 15.

4. Roscoe Pound, The Spirit of the Common Law (Francestown, New Hampshire: Marshall Jones Company Publishers, 1921; reprinted 1931), 42.

5. Gerald T. Dunne, Justice Joseph Story and the Rise of the Supreme Court (New York: Simon and Schuster, 1970), 32.

6. Pound, “Place of Judge Story,” 682.

7. William E. Nelson, Americanization of the Common Law: The Impact of Legal Change on Massachusetts Society. 1760-1830 (Cambridge, Massachusetts: Harvard University Press, 1975), 145.

8. Ibid., 173.

9. Tony A. Freyer, Forums of Order: The Federal Courts and Business in America, Vol. 1: Industrial Development and Social Fabric: An International Series of Historical Monographs, ed. Glenn Porter (Greenwich, Connecticut: JAI Press, Inc., 1979), 48.

10. Dunne, Justice Joseph Story, 405.

11. Karl N. Llewellyn, The Common Law Tradition: Deciding Appeals (Boston: Little, Brown and Company, 1960), 414.

12. Freyer, Forums of Order, 54, 57, 58.

13. Pound, Spirit of the Common Law, 55.

14. Wallace Mendelson, Justices Black and Frankfurter: Conflict in the Court (Chicago: The University of Chicago Press, 1961), 81.

15. Freyer, Forums of Order, 74.

16. R. Kent Newmyer, Supreme Court Justice Joseph Story: Statesman of the Old Republic (Chapel Hill: The University of North Carolina, 1985), 334.

17. Ibid., 327, 334.

18. James Willard Hurst, The Growth of American Law: The Law Makers (Boston: Little, Brown and Company, 1965), 189.

19. Freyer, Forums of Order, 90.

20. George Lee Haskins and Herbert A. Johnson, Foundations of Power: John Marshall. 1801-1815. Vol. 2: History of the Supreme Court of the United States, The Oliver Wendell Holmes Devise, ed. Paul A. Freund (New York: Macmillan Publishing Company, 1981), 566.

21. Alpheus Thomas Mason, Harlan Fiske Stone: Pillar of the Law (New York: The Viking Press, 1956), 477.

22. Mendelson, Justices Black and Frankfurter, 82.

23. William R. Leslie, “The Influence of Joseph Story’s Theory of the Conflict of Laws on Constitutional Nationalism,” Mississippi Valley Historical Review 35 (1948): 184.

24. Henry J. Friendly, “In Praise of Erie – and of the New Federal Common Law,” New York University Law Review 39 (1964): 405.

25. Mason, Harlan Fiske Stone, 477.

26. Newmyer, Justice Joseph Story, 335.

27. Hurst, Growth of American Law, 189.

28. Newmyer, Justice Joseph Story, 383.

29. Freyer, Forums of Order, 99-101.

30. James McClellan, Joseph Story and the American Constitution: A Study in Political and Legal Thought (Norman: University of Oklahoma Press, 1971), 183, 184.

31. Freyer, Forums of Order, 102.

32. McClellan, Joseph Story, 184.

33. Newmyer, Justice Joseph Story, 335.

34. Hurst, Growth of American Law, 191.

35. Alfred Lief, ed., The Dissenting Opinions of Mr. Justice Holmes (New York: The Vanguard Press, 1929), 135.

36. Mark DeWolfe Howe, ed., Holmes-Laski Letters: The Correspondence of Mr. Justice Holmes and Harold J. Laski. 1916-1935 (Cambridge, Massachusetts: Harvard University Press, 1953), 822.

37. Ibid., 100-102.

38. Cosgrove, Our Lady the Common Law, 108.

39. McClellan, Joseph Story, 185.

40. Mason, Harlan Fiske Stone, 478.

41. Ibid.

42. Ibid.

43. Friendly, “In Praise of Erie ” 390.

44. Mason, Harlan Fiske Stone, 478.

45. McClellan, Joseph Story, 185.

46. Ibid.

47. Philippa Strum, Louis D. Brandeis: Justice for the People (Cambridge, Massachusetts: Harvard University Press, 1984; reprint, New York: Schocken Books Inc., 1989), 363-364.

48. Freyer, Forums of Order, 153.

49. Randall Bridwell and Ralph U. Whitten, The Constitution and the Common Law: The Decline of the Doctrines of Separation of Powers and Federalism (Lexington, Massachusetts: Lexington Books, D.C. Heath and Company, 1977), 1.

50. Freyer, Forums of Order, 153.

51. Mason, Harlan Fiske Stone, 479-480.

52. Albert B. Saye, ed., American Constitutional Law: Cases and Text, 2d ed. (St. Paul, Minnesota: West Publishing Company, 1979), 52.

53. Mason, Harlan Fiske Stone, 480.

54. Freyer, Forums of Order, 152.

55. Mason, Harlan Fiske Stone, 477.

56. Charles T. McCormick, et al., eds., Cases and Materials on Federal Courts, 5th ed., University Casebook Series (Mineola, New York: The Foundation Press, Inc., 1970), xiii.

57. John R. Schmidhauser, The Supreme Court as Final Arbiter in Federal-State Relations 1789-1957 (Chapel Hill: The University of North Carolina Press, 1958), 180.

58. William O. Douglas, The Court Years. 1939-1975: The Autobiography of William O. Douglas (New York: Random House, 1980), 121.

Legal services go a la carte

Sunday, December 31st, 2006

By KATHARINE WEBSTER  Associated Press
CONCORD, N.H. – When Mary Noyes’ husband asked for a separation four years ago, she asked a lawyer in her family business to recommend a good divorce attorney.
At the first meeting, lawyer Elizabeth Scheffee told Noyes, who lives in Freeport, Maine, that she could handle the whole divorce or coach Noyes through mediation – required by Maine law – and provide help as needed. Noyes chose the second alternative.
The disintegration of Noyes’ marriage left her heart “in a mud puddle,” she said. Yet over the next six months, the couple managed to agree on custody of their two daughters, child support and division of their real estate, investments, cars and boats.
Scheffee told Noyes what to expect, outlined her choices, filled out the necessary forms and drafted the final agreement. But Noyes and her then-husband, who also was coached by an attorney behind the scenes, negotiated the terms themselves.
Noyes liked being in control instead of being swept through the process by experts. Yet she also needed objective, professional advice at a time of great vulnerability.
“The most valuable part is there is an active role, as opposed to just being told what to do and what my rights and responsibilities were. You can choreograph and build an agreement that hopefully is amenable to both parties,” she said. Also, “It’s always great just to pay for what you need.”
A decade ago, that would have been impossible. But starting in 1999 with Colorado, states began adopting rules allowing lawyers to provide a menu of limited legal services to people who can’t afford an attorney from soup to nuts. Maine, New Hampshire, California and Florida are among them, and most other states are considering such rules.
The change is driven partly by judges and bar associations trying to help the overwhelming number of people representing themselves in court, or appearing “pro se.”
“It’s a response to the pro se dilemma throughout the country: Let’s try to get you some help when you need it, when you want it and in a manner that you can afford,” said John Norton, a Keene attorney who worked on New Hampshire’s new rules and corresponding ethics rules for lawyers.
About 70 percent of family law cases in Maine and New Hampshire involve at least one person without a lawyer, court officials and lawyers say. The National Center for State Courts says there are no national statistics, but some states and other jurisdictions report comparable numbers, especially in family law and probate cases.
Consumers also are able to get more legal information online, while lawyers are facing the fact that most potential clients can’t afford a full-service divorce, said Jeanne Charn, a senior lecturer at Harvard Law School who advises the American Bar Association’s Committee on the Delivery of Legal Services.
Starting in the mid-1990s, courts began responding. They put forms and rules in plain English and online; set up self-help centers at courthouses; and hired mediators, neutral evaluators or case managers to guide people. Lawyers adapted.
“One of the things lawyers began to offer was, ‘We’ll help you with your issues, we’ll help you decide, we’ll prepare you, we’ll go to court with you if you want.’ But they broke it down into discrete fees for each service,” Charn said. “In some sense, it’s a consumer-oriented movement.”
Noyes said her divorce was “pretty ugly” when she was in the thick of it. But where court battles often add fresh wounds, Noyes believes Scheffee’s coaching helped her get past the hurt and achieve an agreement she could live with.
As a result, communication with her ex-husband has improved and their daughters have benefited, she said.
“I have no doubt he wants the best for the children,” she said. “If we didn’t have any kids, the divorce probably would have been a no-brainer.”
They also saved money. Scheffee, who pushed for “unbundled” legal services as president of the Maine Bar Association in 2001, said a full-service divorce costs $5,000 to $8,000. But coaching someone like Noyes costs about $1,000 – more if real estate or children are involved, less if the divorcing partners have already negotiated an agreement and just need someone to put it in a legal document.
“My retainer from soup to nuts is four times what it is for unbundling, and it usually needs to be replenished, whereas most of your unbundled clients get a refund,” she said.
New Hampshire’s rules took effect July 1 and apply to all civil cases. Even at the state Supreme Court, 25 percent to 30 percent of appeals are filed by nonlawyers, Associate Justice James Duggan said. Most are in landlord-tenant actions, small claims cases, petitions filed by prisoners and post-divorce disputes.
“A lot of them are handwritten. I mean, people do the best they can, but our concern is people may have a good issue and they don’t raise it,” Duggan said. “What we hope is those people who are representing themselves will go to a lawyer to help them with a significant piece of the litigation, and that will help the courts.”
The new rules also protect lawyers, said Amherst attorney Honey Hastings. If a lawyer starts a full-service divorce and the client runs out of money, the lawyer has to get a judge’s permission to withdraw if the client objects.
Now lawyers and clients can sign a contract specifying exactly what they will and won’t do and how much it will cost. If the client stops paying, the lawyer can stop working.
“Before, if the client stopped paying you – and they might be into you for thousands of dollars – you might not be able to get out of the case,” Hastings said. “It made lawyers say, ‘I’m not going to take a case,’ or ‘I’m going to have to charge more money,’ and I think that priced some people out.”

Is prosecutorial misconduct getting out of hand?

Friday, December 29th, 2006


WASHINGTON, June 26, 2003 — Local prosecutors in many of the 2,341 jurisdictions across the nation have stretched, bent or broken rules to win convictions, the Center for Public Integrity
 has found.

 Since 1970, individual judges and appellate court panels cited prosecutorial misconduct as a factor when dismissing charges, reversing convictions or reducing sentences in over 2,000 cases. In another 500 cases, appellate judges offered opinions—either dissents or concurrences—in which they found the misconduct warranted a reversal. In thousands more, judges labeled prosecutorial behavior inappropriate, but upheld convictions using a doctrine called “harmless error.”

Misconduct by prosecutors led to the conviction of innocent individuals who were later exonerated. Guilty defendants have also had their convictions overturned and are placed back on the street. In addition, the Center found many prosecutors who were cited multiple times for misconduct. These prosecutors give recidivism—a word usually used to describe those they work to put behind bars—a disturbing new meaning. >>


Who suffers when a prosecutor is cited for misconduct?
By Steve Weinberg

WASHINGTON, June 26, 2003 — When Larry Johnson walked out of a Missouri prison during the summer of 2002, exonerated by DNA testing from a wrongful rape conviction after avowing his innocence for 18 years, St. Louis legal community insiders nodded knowingly as word trickled out who had led the prosecution back in 1984—Nels C. Moss Jr.

Moss, assistant circuit attorney for the city of St. Louis and later a trial prosecutor in neighboring St. Charles County, earned a well-deserved reputation as an aggressive, effective trial prosecutor. During his 33 years of trying cases for the people, however, he simultaneously was a recidivist breaker of the rules by which prosecutors are supposed to operate.

After joining the St. Louis city prosecutor’s office in 1968, Moss found his conduct formally challenged in at least 24 cases. In seven of those, judges reversed the conviction, declared a mistrial or issued some other ruling adverse to the prosecution.

Over the course of his career as a prosecutor, Moss reneged during trial on a pre-trial stipulation with the defense; called the jury’s attention to the defendant’s failure to testify, thereby compromising the Fifth Amendment rights of the accused; alluded to the defendant’s uncharged criminal conduct, a violation of the rules of evidence; attacked the character of the defendant with information not in the court record; used inadmissible material from a separate trial of an accomplice; promised during jury selection or opening argument to present testimony never offered; attacked the truthfulness of defense counsel; cast aspersions on the integrity of an insanity defense; and inflamed jurors’ passions during closing argument.

When one appellate panel reversed a conviction in a case won by Moss, a judge writing a concurring opinion emphasized that the blame lay with the prosecutor and not with the courts:

“Most regrettable … is the fact that we are required to remand this case for retrial, with all of the expense, delay and inconvenience attendant thereto, because of a trial incident that need not and should not have occurred … It was a deliberate effort by one of the most experienced assistant circuit attorneys in the City of St. Louis to interject even more poison than his extensive review of defendant’s prior convictions had already accomplished … The sole purpose … was to poison the minds of the jurors regarding the defendant’s character … Where, as in this case, the record discloses a patent effort to deprive a defendant of a fair trial, the onus for the delay and added expense should be directed toward the prosecutor who caused it. This is especially true when, rather than resulting from youthful zeal, the error is but one example of a consistent pattern of improper tactics reflected by other transcripts in cases tried by the same experienced prosecutor.”

In another 17 cases prosecuted by Moss, appellate judges affirmed the conviction or trial judges allowed the proceeding to continue, despite finding Moss committed prosecutorial error.

Moss declined an interview request from the Center for Public Integrity, and wrote that he sees no point in subjecting himself to “second guessing by those that have not walked in my shoes.” In his response to the interview request, Moss characterized himself as “a hard-hitting but honest prosecutor.” He estimated that he tried more than 400 cases before juries, including “high-profile, racially and politically explosive cases. Obviously the friends and representatives of those convicted are dissatisfied with the outcomes and are prone to see fault and perceived injustice.”

Of judges who criticized his tactics, Moss wrote that some “have never tried cases as prosecutors or defense attorneys and have never experienced the heat of the courtroom.” Moss wondered if his detractors realize that, “I have refused to proceed on numerous cases where confessions did not match the evidence, where identifications did not measure up to appropriate standards, where alibis while not conclusive have left too much reasonable doubt. … I have never approved or sponsored testimony I suspected to be false. I have never prosecuted anyone on the basis of race; indeed most of the victims of the crimes I prosecuted were minorities.”

Though Moss’ record of 7 reversals due to misconduct and 17 other findings that he committed prosecutorial error is extreme, he is hardly an anomaly.

Recidivist prosecutors
Local prosecutors in many of the 2,341 jurisdictions across the nation have stretched, bent or broken rules while convicting defendants, the Center has found. Since 1970, individual judges and appellate court panels cited prosecutorial misconduct as a factor when dismissing charges at trial, reversing convictions or reducing sentences in at least 2,012 cases. The nature of the questionable conduct covers every type attributed to Moss, and more.

In 513 additional cases, appellate judges offered opinions—either dissents or concurrences—in which they found the prosecutorial misconduct serious enough to merit additional discussion; some of the dissenting judges wrote that they found the misconduct warranted a reversal. In thousands more cases, judges labeled prosecutorial behavior inappropriate, but allowed the trial to continue or upheld convictions using a doctrine called “harmless error.”

The Center analyzed 11,452 cases in which charges of prosecutorial misconduct were reviewed by appellate court judges. In the majority of cases, the allegation of misconduct was ruled harmless error or was not addressed by the appellate judges, and the conviction stood. The relative rarity of reversals makes these opinions useful from an empirical standpoint: Any prosecutor who has more than one reversal to her credit belongs to a select club.

Prosecutorial misconduct falls into several categories, including:

  • Courtroom misconduct (making inappropriate or inflammatory comments in the presence of the jury; introducing or attempting to introduce inadmissible, inappropriate or inflammatory evidence; mischaracterizing the evidence or the facts of the case to the court or jury; committing violations pertaining to the selection of the jury; or making improper closing arguments);
  • Mishandling of physical evidence (hiding, destroying or tampering with evidence, case files or court records);
  • Failing to disclose exculpatory evidence;
  • Threatening, badgering or tampering with witnesses;
  • Using false or misleading evidence;
  • Harassing, displaying bias toward, or having a vendetta against the defendant or defendant’s counsel (including selective or vindictive prosecution, which includes instances of denial of a speedy trial);
  • Improper behavior during grand jury proceedings.

Some of the most common allegations of prosecutorial misconduct involved improper closing arguments and excluding jurors on the basis of race, ethnicity, gender or some other discriminatory grounds.

In 28 cases, involving 32 separate defendants, misconduct by prosecutors led to the conviction of innocent individuals who were later exonerated, the Center found. Innocent men and women were convicted of serious charges, including murder, rape, and kidnapping and assault.

Guilty defendants have also had their convictions overturned. Sometimes those defendants cannot be retried because of double jeopardy rules, and are placed back on the streets of the community. In other words, prosecutorial misconduct sometimes has severe consequences for the entire citizenry, not just a lone defendant.

In addition, the Center found some prosecutors who had convicted innocent defendants in more than one case over the course of their careers; some of these prosecutors were cited multiple times for misconduct in other cases as well.

Most of the nation’s approximately 30,000 local trial prosecutors strive to balance their understandable desire to win—a desire supported by the vast majority of the citizenry—with their duty to ensure justice. There are some prosecutors, however, who have exalted winning and ignored the other half of the equation. Those prosecutors who repeatedly break the rules give recidivism—a word usually used to describe those they work to put behind bars—a disturbing new meaning.

It is impossible to know for sure how often a specific prosecutor (or a specific defense attorney, judge, police officer, etc.) bends or breaks the rules. In most jurisdictions, at least 95 percent of the cases that pour in from the police never reach a jury, which means any misconduct occurs away from public view. The only trial those defendants receive takes place in the prosecutor’s office; the prosecutor becomes the judge and the jury. The prosecutor is the de facto law after an arrest, deciding whether to charge the suspect with committing a crime, what charge to file from a range of possibilities, whether to offer a pre-trial deal, and, if so, the terms of the deal.

Katherine Goldwasser, a law professor at Washington University in St. Louis who served as a prosecutor in Chicago before joining academia, suggested that misconduct often occurs out of sight, especially in cases that never go to trial. Those cases by definition do not generate appellate opinions (and thus are for the most part beyond the scope of the Center study). Goldwasser told the Center. “It is not a safe assumption that cases ending with guilty pleas are absent prosecutorial misconduct.”

Perhaps the most difficult type of misconduct to unearth, Goldwasser said, is the failure of the prosecutor to turn over possibly exculpatory information to the defense. Such lack of disclosure is commonly known as a “Brady violation,” after the 1963 U.S. Supreme Court case Brady v. Maryland and its progeny. After all, if only police and prosecutors know about evidence that suggests innocence, how is defense counsel to know for certain such evidence even exists?

To complicate quantification, any listing of mistrials and appellate reversals involving a specific prosecutor might be incomplete. While legal databases like Lexis and Westlaw (both of which were used in this study) contain appellate rulings, some remain unpublished, and those that are published rarely identify the trial prosecutor. And, short of visiting every courthouse in the country, there is no way to determine how many cases are dismissed or ruled mistrials by trial judges (and thus never reaching the appellate courts) because of a prosecutor’s misconduct.

Despite those limitations in the data, the study determined that, like Moss in St. Louis, other prosecutors around the country have been found by appellate court or trial court judges to have bent or broken the rules multiple times.

In Cuyahoga County, Ohio, Carmen Marino, who served for 30 years as a prosecutor before retiring in 2002, won five convictions that were overturned by the Ohio appellate courts. Appellate judges have ruled that Montgomery County, Ala., District Attorney Ellen Brooks’ discriminatory tactics deprived defendants of fair trials four times since she began prosecuting in 1977. Former Hinds County, Miss., District Attorney Edward Peters was involved in six cases in which judges ruled that his conduct prejudiced a defendant.

The pattern of behavior of John Zimmermann, a trial prosecutor in Davidson County (Nashville), Tenn., so alarmed six former Tennessee prosecutors that, during July 2002, they filed an amici curiae brief to the U.S. Supreme Court on behalf of Death Row defendant Abu-Ali Abdur’Rahman. The six, who constitute a who’s who of the Tennessee legal profession, cited Zimmermann’s misconduct in the case – confirmed by the state Supreme Court but nevertheless ruled as harmless error – and his behavior in previous, unrelated cases.

The brief argues that Zimmermann withheld evidence from the defense and misrepresented a prior conviction of the defendant. Even more troubling, it cites Zimmermann’s conduct during three other, unrelated cases, including a murder case in which the verdict was overturned because of the Davidson County prosecutor’s behavior. (In a response to the Center for Public Integrity, Zimmerman vociferously contests the charges.)

Fighting Misconduct
Perhaps nothing better demonstrates the serious problem prosecutorial error and misconduct pose to the justice system than the efforts of a handful of jurisdictions to combat it. In Boston, Ralph Costas Martin II, who became district attorney of Suffolk County in 1992, worked hard to change a system that had been characterized by one prominent defense attorney as “the best place to have a guilty client, and the worst one to have an innocent client,” according to journalist Sean Flynn’s book, Boston D.A.: The Battle to Transform the American Justice System.

Among numerous examples, Flynn explains how Martin began hiring young trial prosecutors who understood the concept of elevating justice over winning at all costs. Job candidates would be asked how they would handle the following scenario: On a busy morning, with three dozen cases stacked up, you, the prosecutor, are approached by defense counsel in one of those cases. “My client will plead out if you recommend probation,” the defense lawyer says. You skim the case file, which contains nothing but a police report. It says the officer stopped the car because the driver allegedly made a “furtive gesture.” While searching the stopped car, the officer says he found a small amount of cocaine. What, the job candidate is asked, should a good prosecutor do?

The obvious answer seems to be accept the plea. But that is not the answer Martin wanted. Instead, he hoped job candidates would say they would ask the judge for a delay, in order to question the arresting officer privately. The first question of the officer should be to describe the “furtive gesture.” Much of the time, Martin believed, police officers listed that rationale to cover up a bogus stop of a racial minority or some other targeted group. Unless the police officer offered a plausible explanation, Martin hoped the job candidate would say the case should be dismissed. Why? Because an alert defense lawyer or judge will understand the traffic stop was a pretext, thus leading to suppression of the evidence that resulted—the cocaine. The prosecutor moving ahead with the case will lose the trust of the judge and the defense lawyer, and will have done nothing to halt the police officer’s improper behavior.

In San Diego County, elected District Attorney Paul J. Pfingst and his staff introduced a number of innovations, including distribution of a comprehensive training manual to all attorneys in the office, initiation of post-conviction DNA review of 766 pre-1992 cases, and even allowing television cameras to follow prosecutors around as they did their work. The videotape became the basis of a national television show that aired weekly on NBC during the summer of 2002. But not even all the legitimate reforms could save Pfingst from defeat at the polls in November 2002. Too many voters perceived his office as housing prosecutors whose misbehavior resulted in high-profile mistrials and appellate reversals.

Within a jurisdiction, elected prosecutors can preside over a culture of misconduct in their offices. Unelected, nearly anonymous prosecutors, like Nels Moss in St. Louis, do not operate in a vacuum. Individual prosecutors accused of misconduct must be understood within the context of the culture of the office to which that prosecutor belongs.

The St. Louis Circuit Attorney’s office has served as a home for aggressive trial prosecutors, including Moss. Sometimes that aggressiveness leads to brilliant lawyering within bounds. Other times it leads to rule breaking.

Since 1970, the Center study found, there were 129 rulings by trial judges and appellate judges, including the cases tried by Moss, that addressed alleged prosecutorial error by the circuit attorney’s office.

Those cases involve at least 40 St. Louis city prosecutors other than Moss. Of the 129 rulings, 45 resulted in reversals or acquittals. Another 13 upheld convictions, but at least one appellate judge issued a dissent in favor of reversing the conviction. The remaining 71 rulings found prosecutorial error, but the judges allowed the convictions to stand, without any dissents.

A culture of misconduct
Bennett L. Gershman, a former New York County (Manhattan) prosecutor who now teaches law at Pace University, is an authority on professional conduct. Gershman, who has written textbooks and law review articles about prosecutorial misconduct, testified at Congressional hearings, conducted seminars and provided perspective to countless journalists, told the Center about St. Louis, “Compared to other offices that I have looked at, the number of reversed cases for prosecutorial misconduct from a single office is rather large, particularly since reversals are not commonplace given the various techniques used by appellate courts to try to uphold convictions.”

Moss is not the only prosecutor in the St. Louis office to be cited multiple times for error and misconduct. Three assistant circuit attorneys other than Moss were cited or reversed multiple times for misconduct. Appellate judges cited misconduct when reversing three convictions won by Joseph W. Warzycki, who joined the circuit attorney’s office in 1977. In five other cases, defendants alleged misconduct, which was ruled as harmless error. Gordon L. Ankney, now in private practice, was reversed twice for misconduct. John D. Chancellor was reversed once for misconduct; in 13 other cases, defendants alleged misconduct but appellate courts ruled it harmless error. Chancellor left the prosecutor’s office in 1987 to become a trial judge, a position he held until his death in 1991.

Though St. Louis-area defense lawyers mention Warzycki, Ankney, Chancellor and other prosecutors from time to time, Nels Moss almost always is mentioned first, and discussed with the greatest amount of passion. Like so many other prosecutors who bend or break the rules in jurisdictions across the nation, Moss has never been publicly sanctioned by his office supervisors or by the state bar disciplinary counsel.

Gershman, the Pace University professor, said of Moss’ record that the number of “reversed cases from one prosecutor’s misconduct is fairly astounding.”

Ronald Weich, a former assistant district attorney in New York County (Manhattan), has studied the atmosphere of prosecutors’ offices and the conduct of individual prosecutors in those offices from his perch at the Washington, D.C., law firm of Zuckerman Spaeder. The co-author of a study for the Leadership Conference on Civil Rights that addresses what he terms “the unequal treatment of minorities in the exercise of prosecutorial discretion,” he told the Center that, “Prosecutorial abuses often arise from structural problems and an utter lack of accountability within the office.” When the elected prosecutor cares little about serving justice, that attitude trickles down to the trial prosecutors, Weich says. Even when the elected prosecutor sets the right tone, Weich believes many offices house what he calls “cowboys” who ignore reasonable doubt. Moss’s career in St. Louis suggests that both office culture and his own aggressiveness played a part in his “astounding” record of reversals due to misconduct.

Moss served 16 of his 33 years as a prosecutor under the supervision of former Circuit Attorney George A. Peach, the elected district attorney. Peach, who first won election in 1976, resigned in 1992 because of personal financial and sexual improprieties. A staff prosecutor before his election to the top spot, Peach is one of the more than 40 prosecutors whose conduct led to reversals and other findings of error.

Dee Joyce-Hayes and Moss worked as trial prosecutors from 1981 until 1992 under Circuit Attorney Peach. Both Joyce-Hayes and Moss wanted to succeed Peach after he stepped aside in 1992. Joyce-Hayes won the job.

Joyce-Hayes told the Center she thought of firing Moss, partly because she believed he behaved unfairly toward her as a political opponent, partly because of his over-aggressiveness as a trial lawyer. She retained Moss, she said, to keep from angering some of their office colleagues, to refrain from alienating certain St. Louis power brokers who admired Moss—and because he could win convictions that might have eluded other prosecutors. But, Joyce-Hayes added, “I isolated him in the homicide unit; I did not make him a team leader. I worried about him having too much contact with impressionable young assistant circuit attorneys.”

The current elected prosecutor in St. Louis is Jennifer M. Joyce, who joined the staff before Moss left but never served as his supervisor. Joyce, who has served about half of her first four-year term, has instituted a number of reforms aimed at cleaning up the office culture of St. Louis.

Though Moss’ elected supervisors failed to discipline or rein him in, he was ultimately responsible for his own conduct in the courtroom. And that conduct earned him the mistrust of lawyers who opposed him at trial. Some defense attorneys began to assume that Moss would bend or break rules.

During 1999, shortly after he left his position in St. Louis to prosecute cases in neighboring St. Charles County, Mo., Moss entered a high-profile murder case. Appellate courts had overturned the defendant’s death sentence two separate times before his involvement.

Upon Moss’ entry, public defenders collaborated on a petition they said was unprecedented in their experience: They asked the judge to bar Moss’ participation. Failing that, they asked the judge, before the proceeding even began, to admonish Moss “against engaging in any effort to circumvent the constitution … the rules of evidence, and from any effort to make prejudicial arguments, speaking objections or other improper remarks within the hearing of the jury.” The public defenders told the judge they had “no desire to engage in vexatious bickering, yet Mr. Moss comes to this case with a record of deliberate misconduct that sharply jeopardizes defendant’s right to and hope for a fair, constitutional sentencing hearing.”

The judge allowed Moss to enter the case. The trial got off to a bad start, as defense counsel had feared. The public defender complained to the judge that “Yesterday morning before we began opening statements, we … received from the prosecuting attorney, Nels Moss, an endorsement of four new witnesses and then a number of items, a photo album. … The matters that have now been disclosed are brand new witnesses, documents, items that have not previously been disclosed. … We are at a significant disadvantage.” The judge did not grant a mistrial. Moss eventually argued in favor of the death penalty, which the jury granted him.

Defense counsel appealed, alleging improper conduct by Moss. The Missouri Supreme Court agreed that, once again, Moss had conducted himself improperly. The court, however, upheld the death sentence, ruling Moss’ overall performance, despite some specific “improper” conduct, could not be proved to have prejudiced the jurors:

“The three trials of this case unfortunately exhibit a consistent attempt by the prosecutor to push the envelope of proper advocacy. We condone the prosecutor’s strategy no more in this trial than in the previous two that were reversed.”

Judges scolded Moss in others cases, too, where they nevertheless upheld the conviction under a doctrine called “harmless error.” Prosecutors and defense counsel disagree on the term’s meaning. The former tend to emphasize the word “harmless,” while the latter tend to stress the word “error.”

Moss’ partisans note that appellate judges—those with no trial experience, those with criminal defense backgrounds and even those who once served as prosecutors—sometimes misinterpret the antiseptic written trial record from which they work. As a result, appellate judges might find prosecutorial misconduct where none was intended. Those same partisans emphasize that Moss helped convict hundreds of guilty defendants without allegations of improper conduct arising on appeal.

Convicting the innocent
There is no doubt, however, that in cases like Larry Johnson’s, unambiguously innocent defendants suffer for a long time while the perpetrators remain at liberty.

Determining unintentional error or intentional misconduct by the prosecution in an actual innocence case can be difficult; sometimes the prosecutor has sound reason to believe in the suspect’s guilt until new evidence, or new ways to evaluate old evidence, emerge. The justice system is acknowledged by all its participants to be imperfect, and even when there is no misconduct, when there are no lapses—either intentional or unintentional—on the part of the police, the prosecutor, the judge, or the defense counsel, an innocent defendant can go to prison. At virtually any step in a trial, from the initial questioning of a suspect through the marshalling of forensic evidence and experts to closing arguments and appellate maneuvering, errors by the state—prosecutors and police—can convict the innocent.

In the Johnson case, Moss had plenty of reason at first to think the defendant guilty, given the accused rapist’s criminal past and the victim’s eyewitness identification. It is also worth noting that DNA testing, which eventually cleared Johnson, was not easily available nor particularly credible when the case first came to trial.

The rape that led to Johnson’s arrest occurred Jan. 31, 1984. The next day, the victim helped a police artist produce a composite drawing of her assailant. He appeared clean-shaven, based on the victim’s recollection. With the composite completed, the police artist showed the victim about 140 photographs of possible suspects. The victim set one of those photographs aside. The man pictured wore a mustache, contradicting the victim’s original description. Moss asked the police artist to add a mustache to the composite. The artist complied.

Later that day, the victim picked Johnson from a police line-up. He had facial hair, contradicting the original physical description and the original composite.

When Johnson’s public defender asked the victim questions at a deposition in late June, she said she was “fairly certain” the photograph she chose from the 140 looked like her assailant. During the August trial, a police crime analyst said he found sperm, but said nothing about using it to type the perpetrator’s blood. Defense counsel asked about blood typing. Moss objected, and the judge sustained the objection. Why? Because the judge opposed allowing forensic tests into evidence.

As a result of Moss’ objection and the judge’s ruling in Moss’ favor, the jurors convicted Johnson based solely on eyewitness testimony. He lost his only appeal, limited to jury selection issues, in 1986. So Johnson remained in prison, with no realistic hope of a hearing to reconsider his conviction, until 1995, when a letter he wrote to the Innocence Project staff in New York City meshed with their interest in post-conviction DNA testing.

Lawyer Barry Scheck, director of the Innocence Project, sued the St. Louis prosecutor’s office toward the end of Dee Joyce-Hayes’ term. Current prosecutor Jennifer Joyce inherited the litigation.

The Innocence Project staff claimed the prosecutor’s office was obstructing post-conviction DNA testing in at least six rape cases, including Johnson’s. Joyce responded there had never been obstruction. She said testing is being done, as time and budget permit, in accordance with a new Missouri law and U.S. Justice Department guidelines. Scheck and his staff are failing to consider the anguish of rape victims when cases are re-opened, Joyce said, as well as ignoring the common-sense theorem that testing should occur only if the results can definitively establish innocence or guilt. Since the litigation began, Joyce took the initiative to start examining about 1400 pre-1994 convictions, to determine if DNA evidence exists and, if so, whether it makes sense to test it. Joyce estimated each case will require about 10 hours of initial review after the paperwork is gathered.

The first scientific testing related to the Innocence Project litigation, on behalf of convicted rapist Fred Hamilton, confirmed his guilt. The finding cast a shadow over Scheck’s effort and led St. Louis prosecutors to complain about wasting time and money, as well as forcing Joyce’s staff to, as she put it, “re-victimize the victim” by asking her about sexual relations with men other than the rapist. “It was a gut-wrenching interview,” Joyce said. “It reminded me of my time as a sex-crimes prosecutor.” She wondered whether Hamilton believed he might benefit from a testing mistake, or whether he was acting sadistically.

Then the tables turned. The second DNA test, negotiated in court on behalf of Johnson, demonstrated a wrongful conviction. After spending 18 years behind bars for a crime he did not commit, Larry Johnson finally attained his freedom. And a longstanding miscarriage of justice was finally undone.

Additional Resources:

Prosecutor Profiles

A Poisoned Prosecution
Misconduct in sexual abuse cases damages reputations—and can ruin lives

Changing an Office’s Culture
In San Diego County, prosecutors have tried to do the right thing—but haven’t always succeeded


Inside an Office
An Elected Prosecutor Explains


Turning on Their Own
A group of former prosecutors cites a colleague’s pattern of misconduct


Playing By the Rules
Even when a prosecutor tries to do everything right, the wrong person may still be convicted



Anatomy of Misconduct
There’s much to learn when a trial goes terribly wrong


A Question of Integrity
Prosecutors dispute the significance of ‘prosecutorial misconduct’


Punishing the Wrongfully Convicted
Federal law keeps defendants denied a fair trial – including those who may be innocent – behind bars


Shielding Misconduct
The law immunizes prosecutors from civil suits


A Short History of Exposing Misconduct
An unlikely cast of characters has shone a spotlight on bad prosecutors, and on occasion sparked reform


Actual Innocence
Exonerated defendants whose cases involved prosecutorial misconduct


Misconduct and Punishment
State disciplinary authorities investigate prosecutors accused of misconduct



Why Prosecutorial Misconduct and Abuses Are Taking Place So Brazenly
by Carl Person

North Carolina Bar files ethics complaint against Duke rape prosecutor Mike Nifong

Friday, December 29th, 2006

   Prosecutors who can’t pass up a chance to get face time on television by making public inflammatory claims about the guilt of a defendant prior to trial, should closely watch the outcome of the ethics complaint filed against North Carolina prosecutor Mike Nifong.


The North Carolina bar filed ethics charges yesterday against the prosecutor in the Duke lacrosse rape case, accusing him of saying misleading and inflammatory things to the news media about he athletes under suspicion.


The punishment for ethics violations can range from admonishment to disbarment.

Among the four rules of professional conduct that District Attorney Mike Nifong was accused of violating in a prohibition against making comments “that have a substantial likelihood of heightening public condemnation of the accused.:


The ethics charge will be heard by an independent body of lawyers and non-lawyers.


How Business Trounced The Trial Lawyers

Friday, December 29th, 2006

By focusing on litigation reform at the state level, business has won key battles. Suddenly, it’s a tough time to be a plantiffs’ attorney

In 1901 a well at Spindletop Hill sent petroleum shooting 200 feet in the air and made Beaumont, Tex., one of the first oil boomtowns. Decades later some locals tapped into a different kind of gusher: personal-injury litigation. Starting with highway and refinery accidents, and then moving to asbestos and tobacco, lawyers at the firm of Provost & Umphrey hauled in the kinds of fees that would make Wall Street lawyers drool. 


But as is the case with oil in Texas, the easy money in injury lawsuits is gone. Thomas Walter Umphrey says the firm he co-founded in 1969 is downsizing. It’s also prospecting in other fields of law to try to keep the business flowing. A couple of hundred miles to the north, in Daingerfield, plaintiffs’ firm Nix Patterson & Roach is also pushing in new directions. “If today we were relying on personal-injury cases in Texas, we would be bankrupt,” says partner Nelson J. Roach. 


What has happened in Texas is not unique. In state after state, the tide has turned in one of the most protracted, hard-fought political struggles of the past two decades—the battle over so-called tort reform. Few other business issues have generated more controversy, polemics, and campaign spending than the effort to scale back the types of lawsuits people can file and how much they can recover. In a speech on Nov. 20, for example, Treasury Secretary Henry M. Paulson Jr. charged that “the broken tort system is an Achilles’ heel for our economy” and exhorted his audience to tackle “one challenge that will take a concerted effort over the long term to correct—the need for reform of our legal system.”

But what Paulson and others have overlooked is that in large areas of the country, that “reform” has taken place, and business has emerged triumphant. The American Lawyer, an influential trade publication, recently declared an end to the era of mass-injury class actions, but the changes are far broader than that. Courthouse doors have slammed shut on a wide variety of claims. Michigan, for example, has virtually wiped out all lawsuits against drugmakers in the state. Six states have passed laws seriously restricting the kinds of asbestos suits that can be filed, and 23 now have statutes saying you can’t sue the likes of McDonald’s (MCD ) for making you fat. Damage limits in many states have rendered medical malpractice litigation nearly comatose.

Both federal and state courts are reinforcing the trend. In December a U.S. appeals court in New York nixed a class action accusing investment firms of manipulating the price of initial public offerings. That was a big loss for securities fraud plaintiffs’ lawyers, especially in a year when the total number of shareholder suits filed was about half the level of prior years, according to statistics compiled by Stanford Law School. In 2005 the Illinois Supreme Court struck down a $10.1 billion judgment against Philip Morris (MO ), saying a state law protects the company from suits alleging that its marketing of “light” cigarettes was deceptive.

It all adds up to an extraordinary turnabout for the plaintiffs’ bar, which has reveled in public-savior images of its top guns hauling Ford (F ) and Firestone into court for disintegrating tires; standing side by side with state attorneys general to extract $300 billion from cigarette makers; and trotting up courthouse steps with smoking-gun Enron documents. These days the law firm that once was the nation’s most prolific filer of shareholder lawsuits is under indictment, thousands of asbestos and silicosis claims are being probed for fraud, and Vioxx litigation, once thought to be a gravy train express, is chugging in reverse. (Of 12 cases tried to verdict involving the painkiller, Merck & Co. (MRK ) has won 8.)

Even many victories are evanescent. According to a report issued by Beasley, Allen, Crow, Methvin, Portis & Miles, an Alabama personal-injury firm, the Alabama Supreme Court reversed 27 of 31 plaintiffs’ verdicts during its 2004-05 session. Thomas J. Methvin of the firm asserts: “It’s a tough time to be a plaintiffs’ lawyer, and it’s a tough time for consumers.”

Of course, when plaintiffs’ attorneys see a falloff in business, lawyers opposing them do, too, and in Texas both sides are feeling the pain. Surprisingly, even businesses may occasionally feel the sting of lawsuit reform. Plaintiffs’ lawyers, closed out of their traditional pursuits, are working harder to drum up claims companies can bring against one another. Additionally, the conservative legal climate may be making it harder for companies that believe they have legitimate claims to get what they feel they’re entitled to when they file a lawsuit.

In late November about 300 attorneys descended on the W (HOT ) Dallas-Victory hotel for the annual conference of the Texas Trial Lawyers Assn. But rather than plotting the next industry-threatening mega-litigation, their goals were decidedly more modest. Attendees could sign up for a full-day “car wrecks seminar.” One presentation explored whether an automobile manufacturer’s failure to include electronic stability control on a crashed vehicle could be the basis for a negligence claim. Another offered tips on creating “trial exhibits on a budget.”

Coming up with creative new lines of litigation—and doing it on the cheap—is imperative for plaintiffs’ lawyers in Texas these days. No other state’s trial bar has suffered a greater reversal of fortune. Until well into the 1990s, Lone Star State plaintiffs’ lawyers walked tall. They pioneered asbestos litigation in the U.S., racked up eye-popping verdicts in cases involving everything from business fraud to diet drugs, and perfected the art of “forum shopping.” Companies dreaded getting sued in places like Eagle Pass, in the Rio Grande Valley, which has bucked the trend in Texas and remains a “hellhole” for business defendants, according to the American Tort Reform Assn.

Money poured in. Five firms, Umphrey’s among them, shared $3.3 billion for representing Texas in its suit against the tobacco companies. Even putting aside the cigarette windfall, top plaintiffs’ lawyers boasted eight-digit incomes. That was several times higher than blue-chip corporate attorneys in New York, Washington, and Houston, whose annual take topped out in the low seven digits. For Umphrey’s 70th birthday bash this summer, organizers had to move three planes and a helicopter out of his firm’s private hangar so 400-odd guests could rock out to live performances by Jerry Lee Lewis and Chuck Berry. Houston attorney John M. O’Quinn, who has cashed in on tobacco, breast implants, and diet drugs, has amassed a classic car collection worth $100 million.

Initially in the liability-reform wars, the plaintiffs’ bar and their opponents pursued very different strategies. While trial lawyers poured considerable resources into electing plaintiff-friendly state judges and legislators, business groups aimed to win federal liability limitations in Washington, but repeatedly saw their efforts founder. One player who realized that a different approach was needed: Karl Rove. Not only did the current White House deputy chief of staff help elect George W. Bush as governor of Texas in the 1990s, but he also was instrumental in judicial-election campaigns that, by 1998, had converted the makeup of the Texas Supreme Court from 100% Democratic to 100% Republican. He played a similar role in flipping Alabama’s high court. Particularly during the Bush presidency, tort reform has become a major talking point for Republican candidates at both the state and federal levels.

For years, says Stephen B. Hantler, an assistant general counsel at DaimlerChrysler Corp. (DCX ) and chairman of the American Justice Partnership, a recently formed litigation reform organization, “the business community stood on the sidelines and watched,” reluctant to get involved in state politics. But by the mid-’90s, national groups like the U.S. Chamber of Commerce and the American Tort Reform Assn. realized, as Hantler puts it, “that the greatest return on investment is at the state level.”

The trial lawyers and the business community entered a campaign-spending arms race, but even for the well-heeled trial bar, it was no contest. In 2004, for example, business groups spent $21.5 million on state supreme court elections, eclipsing the amount spent by plaintiffs’ attorneys and their allies ($13.3 million) for the first time, according to Justice at Stake Campaign, a Washington group that monitors judicial independence.

Much of the money, from both sides, was channeled through state-level organizations that played a critical role in reshaping the legal landscape. The most powerful force for change in Texas has been the home-grown Texans for Lawsuit Reform. Since 1996, tlr’s political action committee has spent more than $13 million promoting liability limits, according to Texans for Public Justice, a not-for-profit organization that tracks campaign spending and opposes litigation curbs. Big donors to tlr’s pac in 2006 included Bob Perry, a Houston homebuilder and funder of the Swift Boat group that attacked John Kerry ($601,000); financier and oilman T. Boone Pickens ($500,000); and real estate magnates Harlan and Trammell Crow ($220,000 together).

Sipping wine in his Houston home one afternoon in November, Hugh Rice Kelly, former general counsel of Reliant Energy Inc. (RRI ) and a leader of tlr, ticks off the changes his group has helped usher in. “We have covered most of the things we wanted to have corrected,” he says, looking more than satisfied.

The changes came not all at once but in waves, starting in 1995 and crescendoing in 2003 with a far-ranging set of liability limitations. Collectively, they have eliminated just about all of the litigation concerns in Texas that keep company executives awake at night. Punitive damages now have ceilings that, for example, will reduce an August, 2005, award of $253 million against Merck & Co. (MRK ) in a Vioxx case to $26 million—if the verdict survives an appeal. Plenty of other states have cracked down in this area, as well. Georgia, for instance, limits punitive damages to $250,000, unless “the defendant acted with a specific intent to harm,” and New Hampshire bars them altogether. As for class actions in Texas, a series of judicial rulings has set the bar so high for a judge to approve them that it’s effectively impossible to meet, practitioners say.

The far-ranging changes passed by Texas lawmakers in 2003 included one that bars injury suits against a seller more than 15 years after a product is sold. One result: After a doctor was decapitated by a Houston hospital elevator in August, 2003, no suit could be filed against the manufacturer, since the elevator was too old. Dallas attorney Todd Tracy notes that many other products, including automobiles, farm and construction equipment, and factory machinery are used for extended periods and now enjoy the same protection. The rule is “one of the worst things about tort reform,” says Tracy, who has his own firm, Tracy Car Boy (“’cause that’s what I do. I’m a boy, and I sue car manufacturers”).

Doctors also gained substantial shielding under the 2003 statute, with a $250,000 maximum on “noneconomic damages”—essentially pain and suffering. Both defense and plaintiff firms say this has been a death knell for many medical malpractice suits. The reason is that a huge number of potential claimants, such as kids and the elderly, suffer no lost income in the view of courts. That means the top recovery is $250,000, and it can easily cost $100,000 or more in expert fees to prepare a case for trial—making litigation a money-losing proposition for attorneys, who now turn these cases away in droves. “They’ve just taken away so many of the rights of victims here,” says Carolyn St. Clair, a nurse and medical malpractice attorney in Houston.

Consumer advocates worry that Texas lawmakers will move next to limit pain-and-suffering awards in product liability cases, too. On a national level, Hantler of the American Justice Partnership says he’s not nearly done. He worries that lawsuits are migrating to states like West Virginia and New Mexico, after crackdowns elsewhere. And while he acknowledges that the results of the November elections will have business playing defense for the next couple of years, he’s already girding for battle in judicial elections in Wisconsin and Ohio in 2008.

The decade-long spending assault by tlr, the U.S. Chamber, and others has done more than just win judicial elections and change laws. Lawyers in Texas say that after years of exposure to tv commercials, billboards, and campaign speeches, public opinion in the state has been profoundly affected. “They have demonized trial lawyers as money-hungry thugs,” complains Houston litigator David Berg. “They have brainwashed jurors.”

The result, say Berg and others, is that they are often hesitant to bring cases before a jury. And when they do, the obstacles become quickly apparent. St. Clair says that during jury selection for a negligence trial she handled, dozens of prospective jurors had to be dismissed because they stated that they would not be able to award punitive damages or damages of more than $1 million. “Everybody was raising their hands” to say they couldn’t, St. Clair says.

While big jury verdicts are increasingly rare in Texas, they still occur. Thus the giant Vioxx award in 2005 and a $36 million verdict in a highway crash case handed down in November. But such awards are vulnerable on appeal. According to Texas Watch, an Austin consumer advocacy group, of the 69 consumer cases accepted for appeal by the Texas Supreme Court during its 2005-06 term, it decided against the consumer in 57, or 83%, a trend Texas Watch says has been consistent for the past six years. “When you have a large verdict that you receive from a jury, you can’t settle the case anymore because the defendants will walk in and say: We know we’re going to win in the Supreme Court,” says Frederick M. Baron, a Dallas attorney who has handled cases involving exposure to asbestos and industrial toxins.

In fact, lawyers on both sides have had to adjust. When the first round of liability limits passed in Texas, Carol Butner, then a partner handling mainly medical malpractice and product liability defense cases at Fulbright & Jaworski in Houston, recalls some younger lawyers at her firm cheering. “Well guys, if nobody’s going to be filing lawsuits, what do you think you’re going to be doing?” replied Butner, who now does intellectual property litigation at McKool Smith.

Roy Camberg, a solo practitioner in Clear Lake, Tex., who built a practice representing plaintiffs in nursing-home abuse cases (also now subject to strict damage limits), says he is simply making less money. In November, he said, he settled a case for $75,000 that three years ago would have settled for $375,000. In Beaumont, Provost & Umphrey still bills itself as a personal injury firm. But Umphrey says 25% of his firm’s work now involves representing companies in patent suits and other commercial disputes. Lawsuit reform, he says, “changed our direction.”

Gwinn & Roby, a Dallas medical malpractice and product-liability defense firm, closed its Fort Worth office in March. Houston’s Beirne Maynard & Parsons, which has also worked in those areas, is retooling some of its 90 attorneys. But it has had modest attrition, and partner Martin D. Beirne says: “We’re probably going to see some more.” Another pressure that firms like his face, Beirne says, is the influx of plaintiffs’ attorneys into business practice, which may push hourly rates down as more lawyers compete for the same work.

Sitting in a conference room high over Houston’s Galleria neighborhood, James L. Reed Jr. and two other attorneys from Looper, Reed & McGraw contemplate the new legal landscape. Looper Reed’s 60 attorneys represent small and midsize businesses, so one would presume that their clients have only benefited from the new environment. But Reed notes that there has been a “ripple effect” from the changes that is affecting commercial cases, too. His colleagues J. Cary Gray and Jack Rains, both self-described conservative Republicans, agree.

“It’s a hell of a lot harder for one of our clients when a contract gets breached to collect all of their damages,” complains Gray, noting that conservative judges take a very narrow view of what kind of damages they will even allow a jury to consider. In general, Gray says, he thinks many Texas judges are “afraid of big verdicts coming out of their courtrooms,” even in a dispute between businesses. Citing a group of rice producers he and Gray represent and the limits they may face on their claims, Reed notes: “They’re starting to get educated about how much tort reform is too much tort reform.”

That’s certainly an idea that would get a sympathetic reception among those who attended the Texas Trial Lawyers Assn. conference. But Amarillo attorney Joe L. Lovell says that thanks to the Democrats’ strong showing in the November elections, “this was the first kind of upbeat meeting that we’ve had in a long time.” Does he think conservatives will now see some of the liability limits reversed? “It brought a lot of people hope,” Lovell says, “that perhaps at a minimum, they’ll stop trying to do any more.” 


Filing for nine new judgeships beginning Jan. 2. Papers must be submitted by Jan. 30th. for Nov. 2007 election.

Thursday, December 28th, 2006

The legislature has created nine new judgeships which will be subject to election this fall.  If you are interested in being a candidate, you must file for these offices no later than Jan. 30, 2007.  Candidates may file their papers beginning Tuesday Jan. 2, 2007.

The Judicial Nominating Commissions of the various nine districts will be making nominations to the Governor for these nine positions in the near future.  The judges appointed will serve until the election in November.

The judgeships will be in the judicial districts covering:

Allen, Boone, Bourbon, Breathitt, Clark, Gallatin, Hardin, Hopkins, Madison, Powell, Russell, Scott, Simpson, Warren, Wayne, Wolfe and Woodford counties.

Some of these positions are for District Judges who will serve until 2010, and Circuit Judges who will serve until 2014.

Candidates who are appointed by the Governor until November must also file to be on the November 2007 ballot.

Have you missed these important LawReader news stories?

Wednesday, December 27th, 2006

the following stories have been posted during Dec.  View our LawReader Blog Archives  to find past stories published on LawReader.


Executive Branch Ethics Commission appears to have exceeded their jurisdiction in proceeding against Dan Druen, and attempting to block Stumbo out of race for Governor.

The world loses James Brown. Christmas greetings from the Boss

How the world sees judges.  Judge videos

Sixth Circuit rules that state rules re: Recusal of judges (and other bar rules) may be reviewed by U.S. District Court.

Jonathan Miller and Anne Northrup are party favorites in Bluegrass Report poll.

Ky. Law Update Program of the Ky. Bar Association is again a success, and remains a great service for Ky. Bar Members. KBA Staffers deserve a pat on the back.

Legal billing auditors. Why a hearse horse snickers when it carries a lawyers bones.

Florida: Judge may not appear at a symposium on a specific legal issue

U.S. District Judge Charles Simpson of Louisville throws out Ky. Wine distribution law.

U.S. District Judge Joseph Hood grants $11 million default judgment against trucking firm.

Sixth Circuit Ct. of Appeals announces job vacancies

Minnesotas high court is targeting trial misconduct by prosecutors. County attorneys are crying foul. Defense lawyers are applauding.

Have you considered offering your services through a group legal insurance plan?

Destruction of misdemeanor records by AOC draws blistering Critique by Courier-Journal

Judicial Transparency and Ethics Enhancement Act of 2006, now before Congress

Chief Justice Josephn Lambert appoints Jason Nemes as Acting Director of the Aministrative Office of the Courts.

Retiring judges have looser tongues, can make news and commentary

Rep. Gray: Make divorce harder. Rep. Stine: just outlaw all divorces.

Attorney Thomas Clay: Fletcher dodging discovery in U.S. District Court civil action and should be deposed
 How a candidate for Governor could rise above the crowd of wanabees…

 Author says TV has lost marketing power

 Just how rich are you compared to everyone else in the world?

Justice Breyer says courts should look after political rights of minorities

Louisville lawyer Teddy Gordon takes School integration back before Supreme Court

LawReader publishes ALL decisions of the Ky. Court of Appeals. 52 important decisions handed down this week. Eight cases are published and should be read immediately.

Mark Your Calendar. The Ky. Bar Assoc. announces date for 2007 State Convention

Justice for a Parent and Child. Virginia’s Court of Appeals does the right thing for common sense and custody laws.

U.S. Supreme Ct. Vets False Claims Act. QUI TAM HURDLES

California Supreme Court . Justices change precedent on warrantless searches for youths

Search and Seizure. US Supreme Court Lets State Rulings Barring Drug Dog House Searches and Restricting Traffic Stop Drug Searches Stand

No-Knock warrants and Kentuckys new No Duty to Retreat Self-Defense statutes are a dangerous combination.

Sixth Circuit Ct. of Appeals announces job vacancies

Wednesday, December 27th, 2006

Vacancy Announcement

The United States Court of Appeals for the Sixth Circuit, Staff Attorney’s Office, is currently recruiting for a Staff Attorney position. More Information

Vacancy Announcement

The U.S. Court of Appeals for the Sixth Circuit, Staff Attorneys Office, is currently accepting applications for an Administrative Support Staff position. Persons interested in being considered for appointment must submit a cover letter and resumé. More Information

Vacancy Announcement

The United States Court of Appeals for the Sixth Circuit is seeking applications for a CJA Case Budgeting Attorney. More Information

Law Clerk Hiring Information
By the time of appointment to a law clerk position, the candidate must be a law school graduate or be certified as having completed all law school studies and requirements and merely awaiting conferment of degree.
More Information

U.S. District Judge Joseph Hood grants $11 million default judgment against trucking firm.

Wednesday, December 27th, 2006

  A default judgment of such a large amount raises the specter of either bankrupting the trucking company against whom it was granted, or the parties having to find someway to back off this judgment.  

One would assume that the trucking company has an insurance company covering their trucking activities.  The insurance company apparently will not be liable for this judgment since it appears the trucking company failed to notify the insurance company of the filing of the lawsuit.  Since the insurance company appears not to have been notified of the service of summons on the trucking company, they will not be liable if their policy has the boiler plate language of most motor vehicle liability policies.

Of course, East-West trucking may have sufficient assets to pay this claim. Let’s hope they do.  The judge sent the defendant a pointed message when he told them it would be in their best interest to take more than a token attempt to settle this matter.  This case screams for mediation.

It may be in the interest of the plaintiff to do likewise.  An uncollectible judgment (do we hear the filing of a Chapter 11 bankruptcy petition) is worth little.

We would suspect that the parties will take Judge Hood’s sound advice and figure someway to settle this judgment.

This case sends a message to corporate counsel to educate their clients that all papers served on them should immediately be delivered to counsel.

By Brett Barrouquere  ASSOCIATED PRESS
LOUISVILLEA South Dakota trucking company has been ordered to pay nearly $11 million to a Central Kentucky couple after it failed to respond to a lawsuit over a highway accident.
U.S. District Judge Joseph Hood in Lexington admonished East West Motor Express of Black Hawk, S.D., for its failure to respond to the lawsuit, and ordered the company to pay the unusual default judgment. Hood encouraged the company to settle before an appeals court could review the matter.
“This is an extreme case,” Hood wrote in an opinion released yesterday. “In case the court needs to spell it out again, it would be in East West’s best interest to make more than a token attempt to settle this matter.”
Robert and Janet Orms of Danville sued East West in August 2005 after a crash on Interstate 64 near Owingsville.
Robert Orms, who was injured in the crash, claimed that an oversize commercial truck owned by East West contributed to the collision because the driver was negligent in the way he handled the vehicle.
In motions filed after the default judgment was entered earlier this year, East West denied any liability. It said the failure to file a response was a clerical error, and that company general manager William Stevens never received a copy of the lawsuit.
“Neither Mr. Stevens nor anyone else at East West learned of the default judgment entered against East West or the details of the incident in question until November 2006,” Charles Cassis, the attorney for East West, wrote in a court filing.
Court records show that Stevens signed a letter acknowledging receipt of a notice that the company was being sued and received a copy of the suit. But attorneys said the lawsuit was not attached to the letter and that Stevens wasn’t aware of what he was signing.
But Hood didn’t buy the company’s story, and he ordered it to pay the couple.
East West said in court filings it will appeal the judgment.

U.S. District Judge Charles Simpson of Louisville throws out Ky. Wine distribution law.

Wednesday, December 27th, 2006

   Kentucky appealed a federal court decision allowing small wineries in and out of the state to ship to Kentucky customers who order over the telephone from catalogs or from the Internet.


   In an opinion issued Dec. 26, 2006, Judge Simpson through out several Ky. Alcoholic Beverage Control laws which will make it easier for the consumer of wines to use the internet for wine purchases which may then be shipped to Ky. purchasers.


A courier journal story discussed the effect of  the court’s ruling.


See affected statutes below.



Judge: Wineries can ship to Ky.   New law takes effect on Jan. 1
By Alex Davis Reprinted from The Courier-Journal
Small wineries across the country can ship wine directly to Kentuckians who order it on the phone or the Internet, a federal judge in Louisville ruled yesterday.
Steve Humphress, an attorney for the state’s office of Alcoholic Beverage Control, said in an interview that the ruling sets up a “pretty big modification” of the state’s existing laws for alcohol sales. Those requirements, which date to the end of Prohibition, created a three-tier system in which producers sell to distributors who then sell to retailers.
U.S. District Court Judge Charles R. Simpson III’s ruling covers a new law set to take effect Jan. 1. Most of the new law remains intact under Simpson’s ruling, including a provision that shipments can be made only from wineries that produce no more than 50,000 gallons of wine annually.
The new rules could make buying more convenient in some instances, but long-distance orders wouldn’t replace the local wine shop, said several customers at The Wine Rack, 2716 Frankfort Ave.
Paul Kichler and his fiancée, Casie McCafferty, frequent visitors to Louisville from their home in Chicago, said it would be handy to be able to buy and ship wine as gifts — and to order makes not available at local stores. “We love Oliver Wines in Bloomington,” Ind., Kichler said.
However, good shops offer more than the wine itself, McCafferty said. “We would go to the store to get expert opinions.”
The Huber Orchard and Winery in Clark County, Ind., initially challenged Kentucky’s wine-shipping laws in a suit filed in May 2005. Huber has since dropped out of the matter, and an Oregon winery, Cherry Hill Vineyards, is now the plaintiff.
Humphress said he could not comment in detail about Simpson’s ruling, but predicted that the state will appeal to the 6th U.S. Circuit Court of Appeals in Cincinnati.
Simpson had initially ruled in August that the state’s existing alcohol laws were unconstitutional. He reiterated that argument in Tuesday’s ruling on the new law, saying it puts out-of-state wineries at an unfair disadvantage by allowing them to ship only to customers who visit their properties in person. Simpson ruled that while Kentucky’s law aimed to be fair by requiring in-person purchases whether the winery was in the state or not, the effect was discriminatory because it’s impractical for Kentucky consumers to shop at distant wineries.
The ruling will allow properly licensed small-farm wineries to ship to Kentucky without the in-person requirement, either over the Internet, by fax or by phone. Purchases will be limited to two cases per person.
Ted Huber, co-owner of Huber Orchard and Winery, said it was too soon to tell if his winery would apply for a $100 shipping license. He said shipping usually makes sense only for wines that cost more than $10 a bottle, because of the relatively high cost of postage.
James Tanford, one of the lawyers for Cherry Hill, said last week that he and a fellow attorney have been involved in similar legal battles in about 18 states, and that of the roughly half-dozen cases that have been decided, all but one of the rulings has been favorable.
Tanford, a law professor at Indiana University, did not return a message left at his Bloomington, Ind., office yesterday. A message left with Cherry Hill also was not returned.
After the initial lawsuit filed by Huber, a trade group called Wine and Spirits Wholesalers of Kentucky Inc. voluntarily entered the case as a defendant.
The group’s leaders have argued that allowing direct shipments to customers over the Internet would compromise the three-tier distribution system and circumvent the law in dry counties where alcohol sales are not allowed.
The new law also sets aside $400,000 in public funds next year for the state’s wine industry. Three-fourths of the money will be used to promote and market wine made in Kentucky. Another $75,000 will be used to pay fees to wholesalers who distribute the wine, and $25,000 will go toward administrative costs for the Kentucky Grape and Wine Council.
John Johnson, owner of The Wine Rack, said he wasn’t sure how much impact the rule change might have on Kentucky wine stores. Other states that allow Internet and phone orders find they account for less than 5 percent of total sales, he said.
One customer Johnson can count on is Louisville Mayor Jerry Abramson, who stopped by early yesterday evening.
Asked by a reporter about the rule change, Abramson paused and smiled. “All I know,” he said, “is I only buy my wine at my local store.”
Reporter Bill Wolfe also contributed to this story.
Reporter Alex Davis can be reached at (502) 582-4644.



The plaintiff had filed motions asking the court to:


Declare Ky. Rev. Stat. §§ 243.032 and 244.165 unconstitutional to the
extent that they prohibit out-of-state wineries from selling and delivering wine directly to consumers and retail wine sellers in the Commonwealth of Kentucky, as a violation of the Commerce Clause of the United States Constitution.


Declare Ky. Rev. Stat. §§ 241.010(22), 241.010(45), 243.155 and 243.156
unconstitutional to the extent that they limit the issuance of licenses authorizing wineries to sell and ship wine directly to consumers and retail wine sellers to wineries located in Kentucky or using fruit or honey produced in Kentucky, as a violation of the Commerce Clause of the United States Constitution.


Enjoining defendant from enforcing Ky. Rev. Stat. §§ 241.010, 243.032,
243.155, 243.156 and 244.165 so as to prohibit out-of-state wineries from selling and shipping wine directly to consumers and retail wine sellers in Kentucky.


KRS 244.165 Unlawful sale and shipment by out-of-state seller directly to a Kentucky consumer — Penalty.
(1) It shall be unlawful for any person in the business of selling alcoholic beverages in
another state or country to ship or cause to be shipped any alcoholic beverage
directly to any Kentucky resident who does not hold a valid wholesaler or
distributor license issued by the Commonwealth of Kentucky.


(2) Any person who violates subsection (1) of this section shall, for the first offense, be
mailed a certified letter by the office ordering that person to cease and desist any
shipments of alcoholic beverages to Kentucky residents, and for the second and
each subsequent offense, be guilty of a Class D felony.
Effective: July 15, 1996
History:Created 1996 Ky. Acts ch. 72, sec. 1, effective July 15, 1996.
Legislative Research Commission Note (6/20/2005). 2005 Ky. Acts chs. 11, 85, 95, 97,
98, 99, 123, and 181 instruct the Reviser of Statutes to correct statutory references to
agencies and officers whose names have been changed in 2005 legislation confirming
the reorganization of the executive branch. Such a correction has been made in this

KRS 242.010 (22)  ”Farm winery” means a winery located on a Kentucky farm with a producing vineyard, orchard, or similar growing area, manufacturing and bottling wines in an amount not to exceed twenty-five thousand (25,000) gallons per year.


KRS 242.010  45) “Small winery” means a winery producing wines from grapes, other fruit, or honey produced in Kentucky, unless exempt under KRS 243.155(2), in an amount not to exceed fifty thousand (50,000) gallons in one (1) year.

Portions of the following law which was to become effective Jan. 1, 2007 have been ruled unconstitutional by Judge Simpson’s ruling.

KRS 243.155 Small farm winery license — Eligibility and application process — Business authorized by license — Off-premise retail sales outlet in wet territory — Use of Kentucky products — Other permitted licenses — Application to persons previously licensed as small or farm wineries. (Effective January 1, 2007)
(1) Any in-state or out-of-state small farm winery may apply for a small farm winery
license. In addition to all other licensing requirements, an applicant for a small farm
winery license shall submit with its application a copy of the small farm winery’s
federal basic permit and proof documenting its annual wine production. An out-ofstate
winery shall submit additional documentation evidencing its resident state. As
part of the application process, an out-of-state winery shall publish its notice of
intent, as required by KRS 243.360, in the Kentucky newspaper of highest
circulation. The office shall promulgate administrative regulations establishing the
form the documentation of proof of production shall take.
(2) A small farm winery license shall authorize the licensee to perform the following
functions without having to obtain separate licenses, except that each small farm
winery off-premises retail site shall be separately licensed:
(a) Manufacture wines and bottle wines produced by that small farm winery;
(b) Bottle wines produced by another small farm winery;
(c) Serve on the premises or at small farm winery off-premise retail sites
complimentary samples of wine produced by it in amounts not to exceed six
(6) ounces per patron per day, if the small farm winery or its off-premise retail
site is located in wet territory;
(d) Sell by the drink or by the package on premises, at small farm winery off premise
retail sites, and at fairs, festivals, and other similar types of events,
wine produced on the premises of the small farm winery or produced by a
licensed small farm winery, at retail to consumers if all sales sites are located
in wet territory;
(e) Sell and transport wine produced on the premises of the small farm winery to
wholesale license holders and small farm winery license holders;
(f) Consume on the premises wine produced by the small farm winery or a
licensed small farm winery and purchased by the drink or by the package at
the licensed premises, if the small farm winery is located in wet territory; and
(g) Ship to a customer wine produced by a small farm winery if:
1. The wine is purchased by the customer in person at the small farm
2. The wine is shipped by licensed common carrier; and
3. The amount of wine shipped is limited to two (2) cases per customer per
(3) If a licensed small farm winery is located in a dry territory, KRS 242.230 to 242.430
shall apply, unless a local option election is held in accordance with the provisions
of this subsection. A limited sale precinct election may be held in a precinct
containing a licensed small farm winery or a proposed small farm winery located in
a dry territory. The election shall be held in the same manner as prescribed by KRS
242.010 to 242.040 and 242.060 to 242.120. If the precinct contains a licensed
small farm winery, the proposition to be voted on shall state, “Are you in favor of
the sale of wine at the (name of the licensed small farm winery or wineries)?” If the
precinct contains a proposed small farm winery or wineries, the proposition voted
on shall state, “Are you in favor of the sale of wine at the (name of the proposed
small farm winery or wineries)?” If the proposition is approved, a licensed small
farm winery within the precinct may sell wine in accordance with subsection (2) of
this section.
(4) Other provisions of this chapter and KRS Chapter 244 notwithstanding, a small
farm winery license holder may also hold a restaurant wine license and a retail malt
beverage license, provided the issuance of these licenses is in connection with the
establishment and operation of a restaurant, hotel, inn, bed and breakfast,
conference center, or any similar business enterprise the purpose of which is to
promote viticulture, enology, and tourism. The retail malt beverage license issued
under this subsection shall limit the licensee to the sale of malt beverages for
consumption on the premises only.
(5) This section shall not exempt the holder of a small farm winery license from the
provisions of KRS Chapters 241, 242, 243, and 244, nor from the administrative
regulations of the board, nor from regulation by the board at all premises licensed
by the small farm winery, except as expressly stated in this section.
(6) Nothing contained in this section shall exempt a licensed out-of-state winery from
obeying the laws of its resident state.
(7) Any person previously licensed as a small or farm winery under this chapter prior to
January 1, 2007, shall hereby be authorized to conduct business as a small farm
winery licensee, until such time as the term of his or her small or farm winery
license expires. Upon the expiration of the term remaining on his or her small or
farm winery license, a licensee who is in good standing shall be issued a small farm
winery license as part of the renewal process after he or she submits to the office the
winery’s federal basic permit and proof of its annual wine production.
Effective: January 1, 2007
History: Amended 2006 Ky. Acts ch. 179, sec. 1, effective January 1, 2007. –
Amended 2005 Ky. Acts ch. 142, sec. 1, effective June 20, 2005. — Amended 2000
Ky. Acts ch. 167, sec. 1, effective July 14, 2000. — Amended 1998 Ky. Acts ch. 357,
sec. 1, effective July 15, 1998. — Amended 1996 Ky. Acts ch. 148, sec. 1, effective
July 15, 1996. — Amended 1994 Ky. Acts ch. 451, sec. 1, effective July 15, 1994. –
Amended 1990 Ky. Acts ch. 54, sec. 5, effective July 13, 1990. — Amended 1988
Ky. Acts ch. 433, sec. 2, effective July 15, 1988. — Amended 1982 Ky. Acts ch. 244,
sec. 2, effective July 15, 1982. — Created 1976 Ky. Acts ch. 381, sec. 2.

Florida: Judge may not appear at a symposium on a specific legal issue

Wednesday, December 27th, 2006

An ethics opinion issued by the Florida Supreme Court has ruled that a judge cannot ethically engage in extra-judicial conduct such as to present an address at a symposium on a specific legal issue.

By appearing with the principals involved in the Schiavo case, Judge Greer associated himself with an advocacy group, advocates for euthanasia and assisted suicide, both of which are prohibited by law in Florida.

Legal billing auditors. Why a hearse horse snickers when it carries a lawyers bones.

Tuesday, December 26th, 2006

By LawReader Senior Editor Stan Billingsley 

We recently ran across an article in the magazine Baseline. The title of the article was  Throwing the Book at Wayward Lawyers.Your billing practices may be audited.  Did you know that there is such a thing as a legal auditing company?  One company (Stuart Maue) produces auditing revenues in the range of $20 million a year just from auditing lawyers billing practices.Carl Sandburg long ago wrote a poem that poses the question, Why a hearse horse snickers hauling a lawyer’s bones.  (See full text of poem below.)  The existence of auditors who focus on legal billing practices may finally answer the famous question posed by Carl Sandburg in his poem. 

Some selected quotes from the Baseline article:

   Stuart Maue has developed a reputation for being a thorn in the side of the legal profession. Over the years, the St. Louse firm ahs helped corporation uncov er some of the …creative accounting methods used by their outside legal teams. Take for example the lawyerw who bill clients for more than 24 hours worth of work in a single day.  Or the lawyers that send four $150 an hour lawyers to take a deposition where one would suffice.    There was the team of Texas lawyers defending a Texas golf course developer and (billed the developer their hourly rate for several rounds of golf.)   Stuart Maue’s weapon of choice for reining in runaway lawyer’s bills is business intelligence, in the form of databases, software and tools to analyzes reams of bills and invoices. Since 2000 the company has invested more than $10 million dollars in expanding its capabilities, creating portals for clients to they can better understand how and where their money is being spent.    The firm’s big break came in l980 when it was hired by Fireman’s Fund Insurance of Novato, California to audit suspicious legal bills it was receiving related to claims filed against an real estate scam. (The company) helped uncover an operation run by 20 lawyers who had bilked insurance companies for as much as $100 million in dubious fees.   Corporations usually develop a standard set of operating guidelines for law firms acting on their behalf, such as no more than two lawyers may attend a deposition, or lawyers may not travel first class. If an audit finds that four lawyers took part in a deposition, that item would be flagged as not-compliant.The Lawyers Know Too Much
Carl Sandburg (1878-1967)
  The lawyers, Bob, know too much.
  They are chums of the books of old John Marshall.
  They know it all, what a dead hand wrote,
  A stiff dead hand and its knuckles crumbling,
  The bones of the fingers a thin white ash.
      The lawyers know
      a dead man’s thought too well.
  In the heels of the higgling lawyers, Bob,
  Too many slippery ifs and buts and howevers,
  Too much hereinbefore provided whereas,
  Too many doors to go in and out of.
      When the lawyers are through
      What is there left, Bob?
      Can a mouse nibble at it
      And find enough to fasten a tooth in?
      Why is there always a secret singing
      When a lawyer cashes in?
      Why does a hearse horse snicker
      Hauling a lawyer away?
  The work of a bricklayer goes to the blue.
  The knack of a mason outlasts a moon.
  The hands of a plasterer hold a room together.
  The land of a farmer wishes him back again.
      Singers of songs and dreamers of plays
      Build a house no wind blows over.
  The lawyers–tell me why a hearse horse snickers
      hauling a lawyer’s bones.

Ky. Law Update Program of the Ky. Bar Association is again a success, and remains a great service for Ky. Bar Members. KBA Staffers deserve a pat on the back.

Tuesday, December 26th, 2006

By Stan Billingsley, Senior Editor,
  Have you every stopped to think about all the work that goes into the execution of  the Kentucky Bar Association’s Kentucky Law Update (KLU) program each year? 

    LawReader interviewed John D. Meyers, Director for CLE for the Kentucky Bar Association to learn about the work, time and expense of the Kentucky Law Update program for 2006.  He was kind enough to share a great deal of interesting information which we are glad to pass on to you along with our statistics and observations. 

We can only guess at the number of days KBA staff members and presenters were away from home, the thousands of miles they collectively traveled, the hundreds of telephone calls they made, the arranging of baby sitters, and the number of fast food meals consumed. 

    The end result is another successful completion of a CLE education program that is second to none in the U.S. It may look easy to the casual observer, but behind the curtain the KBA wizards were pulling a lot of levers and pushing a lot of buttons to make this thing work at the level or professionalism that you expect. 

  This year the KBA provided free CLE classes in Ashland, Louisville, Lexington, Covington, Prestonsburg, Bowling Green, Somerset, Owensboro, & Paducah to members of the Kentucky Bar. A satellite program was beamed into Harlan.

  Kentucky is the only state that provides all required annual CLE classes without charge to members. By our calculation (not including staff salaries) the cost of the program came to $51.18 per each attendee.  The commercial value of this program, if the KBA were to charge the FMV, would likely be $300 to $400 per attendee.

   One of the ways the costs of this program are managed by to leasing space to the vendors at the various seminar sties.  The vendors (LawReader included) set up their booths at the various sites to market their wares to bar members in attendance.
 These vendors appreciate your patronage which helps them justify the expense of their lease, and which indirectly reduces the cost to you. So next year please take time to visit as many vendors booths as possible.

  The Kentucky Law Update series is the evolution of the District bar programs that are mandated by SCR 3.651 (adopted eff. 9-15-90). That Rule requires that the KBA CLE Commission conduct a 12.5 credit CLE seminar in each Supreme Court District during each educational year. Due to the geographic characteristics of several districts, the current schedule includes 9 live programs and one live satellite feed (Harlan).
   Each January, a committee of the CLE Commission meets with the staff to review comments from the last year’s programs, proposed topics from KBA sections and any other relevant input to plan the coming year’s program agendas.

   Once the program is set, the KBA staff contacts the program sponsors to assemble the course materials in a timely manner. Once received by the KBA, the staff formats and proofs the submissions, with each receiving a minimum of 4 reviews. After these steps, each section of the book goes to the CLE Director for the final proof and revision, if necessary. While this is in process, the CLE staff is bidding out the book.

This year the total print run of the course materials book was 4300 books at a total cost of slightly over $32,000. (This was a savings, over the previous year’s costs, by nearly $25,000.)

   It is said that tobacco is a 13 month crop, meaning that you must start next years crop before you finish this years. The KLU is like a crop of tobacco.  By now, contracts for locations for next year have been negotiated, signed and all dates are firmed up for the 2007 KLU program.
The next step in the process is the scheduling of speakers for all locations. This past year several programs were presented by the same speakers at all locations, but many others required a different presenter at each site.

 The KLU required a total of 100 different speakers this year, all volunteers. The KBA owes a huge debt of gratitude to the many individuals who so generously donate their time to this project. It is not unusual for a speaker to have a last-minute conflict that prevents their participation and requires the KBA staff to locate a replacement speaker.  So if the KBA calls on you, in the future, please consider accepting their invitation.
   Primarily responsibility for the programs are John Meyers and Shannon Roberts, along with Dianna Moore, who has 20 years experience in planning events for the KBA.

Once on the site, the KBA crew varies in size from 4 staff, plus 2 audio-visual technicians at the smaller events to the entire CLE Department staff of 9 people plus 4 audio-visual technicians at the major events.

   The estimate of KBA staff hours spent working the events is over 1700 hours this past year (nearly 2400 hours if Audio Visual crew time is included).
   Last year (2005) the total cost of the KLU programs was slightly over $225,000 (not including any staff salaries).   This year (2006), due to savings in printing costs and other line items, the total cost of the program was anticipated to be closer to $190,000.  This number would have been far greater without the many volunteers who annually pitch in.

The 2006 program was attended by 4,396 people, the highest total yet.

The Louisville program had the largest attendance and set a single-event record of 1,617 attendees.

KBA members have reported 36,836 CLE credits  earned from this year’s KLU’s (vs 33,603 last year).
   The KLU programs are unique in the CLE world as we are aware of no other state that offers a program, entailing no out-of-pocket fee to the attendee, that allows the member to obtain their ENTIRE annual CLE requirement.�

   The KBA CLE workers must negotiate contracts with the various meeting sites.  Their work requires a great deal of input from bar members, and they are always looking for sites that are adequate to the needs of the bar.   The various convention centers charge fees for virtually everything.  You may have noticed that over the last few years there is no longer complimentary coffee provided.  Some convention centers charge up to $5,000 to provide coffee for the attendees at one site. These convention centers forbid the KBA from bringing in their own donuts and coffee.  Fortunately some convention centers provide coffee bars where attendees can purchase their own caffeine. 
  So next year when you attend the KLU, you might take a little time to express your appreciation to KBA staffers, John Meyers,  Shannon Roberts, Dianna Moore, Beth Barnes, Lori Alvey, Clifford Timberlake, Leona Stratton, Stephanie Presley and Jane Herrick.  The audio-visual support is provided by Mike Walsh of OnQ Productions .

There were about 100  presenters who agreed to research, write and present their programs to you, often traveling hundreds of miles to do so.  The next time you attend a CLE it would be nice if you were to express your appreciation to these pro bono speakers.
  If you would like to personally express your appreciation to the KBA CLE staff, you can e-mail the director at:

Jonathan Miller and Anne Northrup are party favorites in Bluegrass Report poll.

Tuesday, December 26th, 2006

In a survey conducted by Bluegrass  Jonathon Miller by a wide margin beat out Steve Beshear as the favorite democratic candidate for Governor among the 1,000 + people who participated in the poll.


Republicans favored Anne Northrup by a slight margin over Rep. Rogers


For complete poll results go to:

Sixth Circuit rules that state rules re: Recusal of judges (and other bar rules) may be reviewed by U.S. District Court.

Tuesday, December 26th, 2006

Fieger wins partial victory in feud with state high court
Paul Egan / The Detroit News
A federal appeals court today upheld lawyer Geoffrey Fieger’s challenge to the way the Michigan Supreme Court handles requests for judges to recuse themselves.
The decision of the U.S. 6th Circuit Court of Appeals in Cincinnati is a partial victory for Fieger and a setback for a Michigan Supreme Court that has been in the news because of internal dissension.
Fieger, the Southfield attorney known for his inflammatory comments and multimillion-dollar tort judgments, had challenged the refusal of four of the state’s seven Supreme Court justices to recuse themselves from his cases.
Fieger alleged Justices Maura Corrigan, Clifford Taylor, Robert Young Jr. and Stephen Markman have demonstrated personal dislike and bias toward him.
The 6th Circuit upheld a lower court ruling that federal courts have no jurisdiction to overturn past refusals by the justices to recuse themselves. But the appeals court reversed the decision of U.S. District Judge Marianne O. Battani when it said federal courts may consider a challenge to the constitutionality of the recusal process.
“This is basically the end for them,” Fieger said today of the four justices. “They’ve basically considered themselves above the law and they’re not answerable to anybody.”
Michigan Supreme Court justices make their own decisions on whether to recuse themselves from cases and provide no review process. Fieger alleged that violates his due process rights.
Michigan Supreme Court Justice Elizabeth Weaver, who has criticized her four colleagues for refusing to disqualify themselves from Fieger’s case, last week criticized them again in a dissenting opinion, saying they were advancing a policy of greater secrecy and less accountability.
Those justices have alleged Weaver is resentful over being replaced by her colleagues as chief justice.
Rusty Hills, a spokesman for the Michigan Attorney General’s Office that represented the Michigan Supreme Court in the appeal, said he had no comment.
You can reach Paul Egan at (313) 222-2069 or

Quote from 6th. Circuit Ruling in Fieger Motion:
To the extent that Fieger challenges the constitutionality of Michigan’s recusal rules by
alleging that “[t]he threat that the Plaintiff cannot, and will not, receive a fair hearing before an impartial and independent tribunal is real, immediate, and continuing,” Rooker-Feldman does not bar his action.


To that extent, the source of Fieger’s alleged injury is not the past state court judgments; it is the purported unconstitutionality of Michigan’s recusal rule as applied in future cases.


Such a claim is independent of the past state court judgments. Thus, insofar as the district
court dismissed Fieger’s challenge to the constitutionality of Michigan’s recusal rule pursuant to the Rooker-Feldman doctrine, the court’s judgment must be reversed.


For the reasons set forth above, the district court’s judgment of dismissal is AFFIRMED to the extent, if any, that Fieger challenges the Justices’ past recusal decisions.


The district court’s judgment of dismissal is REVERSED to the extent Fieger challenges the constitutionality of Michigan’s recusal rule.

The case shall be REMANDED to the district court for further proceedings consistent with this opinion.

Find full text of this 6th. Circuit Opinion at: CLICK HERE FOR FULL TEXT
JOHN D. FERRY, JR., et al.,
No. 05-1295

Appeal from the United States District Court
for the Eastern District of Michigan at Ann Arbor.
No. 04-60089—Marianne O. Battani, District Judge.
Argued: September 21, 2006
Decided and Filed: December 26, 2006
Before: SILER and CLAY, Circuit Judges; STAFFORD, District Judge.
STAFFORD, District Judge. Plaintiff, Geoffrey N. Fieger (“Fieger”), appeals the district court’s dismissal of his § 1983 civil rights action challenging the refusal of certain Michigan Supreme Court Justices to recuse themselves from cases in which he is involved. We AFFIRM the district court’s decision to dismiss Fieger’s challenge to the Justices’ past recusal decisions. We REVERSE the district court’s decision to dismiss Fieger’s challenge to the constitutionality of Michigan’s recusal rule.


Michigan Court Rule (“MCR”) 2.003 governs the disqualification of judges in civil
proceedings, providing, in pertinent part, as follows:
(A) Who May Raise. A party may raise the issue of a judge’s disqualification by
motion, or the judge may raise it.
(B) Grounds. A judge is disqualified when the judge cannot impartially hear a case,
including but not limited to instances in which:
(1) The judge is personally biased or prejudiced for or against a party
or attorney.
. . . .
(C) Procedure.
. . . .
(3) Ruling. The challenged judge shall decide the motion. If the
challenged judge denies the motion,
(a) in a court having two or more judges, on the request of a party,
the challenged judge shall refer the motion to the chief judge, who
shall decide the motion de novo;
(b) in a single-judge court, or if the challenged judge is the chief judge, on
the request of a party, the challenged judge shall refer the motion to the state
court administrator for assignment to another judge, who shall decide the
motion de novo.



Fieger maintains that the Michigan Supreme Court does not follow the procedures set forth in MCR 2.003(c)(3) for review of a judge’s decision not to recuse himself or herself from a case.


He contends that, by failing to follow such procedures, the Michigan Supreme Court violates the Constitutional guarantee to due process. In his complaint, he asks the court to enter a declaratory judgment that the word “judge” in MCR 2.003 includes a “Justice” of the Michigan Supreme Court, thus making the review procedures applicable to the Michigan Supreme Court. In the alternative, Fieger asks the Court to declare that the rule is unconstitutional, both on its face and as applied.


In Rooker v. Fidelity Trust Co., 263 U.S. 413 (1923), the Supreme Court held that a federal district court may not review a state court decision for alleged federal law error. Such holding was reaffirmed sixty years later in District of Columbia Court of Appeals v. Feldman, 460 U.S. 462 (1983). In Feldman, the court wrote:


[L]ower federal courts possess no power whatever to sit in direct
review of state court decisions. If the constitutional claims presented
to a United States District Court are inextricably intertwined with the
state court’s denial [of a claim] in a judicial proceeding . . . then the
District Court is in essence being called on to review the state-court
decision. This the District Court may not do.

Id. at 483 n.16 (internal quotation marks and citation omitted). The principles enunciated in Rooker and Feldman have become known as the Rooker-Feldman doctrine. As clarified in Exxon Mobil, application of the doctrine is confined to “cases brought by state-court losers complaining of injuries by state-court judgments rendered before the district court proceedings commenced and inviting district court review and rejection of those judgments.” Exxon Mobil, 544 U.S. at 284.


As stressed in Exxon Mobil, “[i]f a federal plaintiff present[s] some independent claim, albeit one that denies a legal conclusion that a state court has reached in a case to which he was a party . . . , then there is jurisdiction and state law determines whether the defendant prevails under principles of preclusion.” Id. at 293 (internal quotation marks omitted); see also McCormick v. Braverman, 451 F.3d 382, 394 (6th Cir. 2006) (explaining that “[i]n Exxon, the Supreme Court implicitly repudiated the circuits’
post-Feldman use of the phrase ‘inextricably intertwined’ to extend Rooker-Feldman to situations where the source of the injury was not the state court judgment”); Hoblock v. Albany County Bd. of Elections, 422 F.3d 77, 87 (2d Cir. 2005) (explaining that “federal plaintiffs are not subject to the Rooker-Feldman bar unless they complain of an injury caused by a state judgment” (emphasis omitted)); Davani v. Virginia Dep’t of Transp., 434 F.3d 712, 719 (4th Cir. 2006) (explaining that “[u]nder Exxon, . . . Feldmans ‘inextricably intertwined’ language does not create an additional legal
test for determining when claims challenging a state-court decision are barred, but merely states a conclusion: if the state-court loser seeks redress in the federal district court for the injury caused by the state-court decision, his federal claim is, by definition, ‘inextricably intertwined’ with the state-court decision, and is therefore outside of the jurisdiction of the federal district court”).


 In other words, “[t]he key point is that the source of the injury must be from the state court judgment itself; a claim alleging another source of injury is an independent claim.” McCormick, 451 F.3d at 394.

It is important to note that Howell and Chafin were both decided before the Supreme Court clarified the reach of Rooker-Feldman in Exxon Mobil.


 Indeed, given the lessons taught in Exxon Mobil and its progeny, the decisions in Howell and Chafin are not persuasive here.


In Feldman, the Supreme Court explained:


Challenges to the constitutionality of state bar rules . . . do not necessarily require a
United States District Court to review a final state court judgment in a judicial
proceeding. . . . United States District Courts . . . have subject matter jurisdiction
over general challenges to state bar rules, promulgated by state courts in non-judicial
proceedings, which do not require review of a final state court judgment in a
particular case.  Feldman, 460 U.S. at 486.


 In Exxon Mobil, the Court emphasized that “[i]f a federal plaintiff ‘present[s] some independent claim, albeit one that denies a legal conclusion that a state court has
reached in a case to which he was a party . . . , then there is jurisdiction and state law determines whether the defendant prevails under principles of preclusion.’” Exxon Mobil, 544 U.S. at 293.

To the extent that Fieger challenges the constitutionality of Michigan’s recusal rules by
alleging that “[t]he threat that the Plaintiff cannot, and will not, receive a fair hearing before an impartial and independent tribunal is real, immediate, and continuing,” Rooker-Feldman does not bar his action.


To that extent, the source of Fieger’s alleged injury is not the past state court judgments; it is the purported unconstitutionality of Michigan’s recusal rule as applied in future cases.


Such a claim is independent of the past state court judgments. Thus, insofar as the district
court dismissed Fieger’s challenge to the constitutionality of Michigan’s recusal rule pursuant to the Rooker-Feldman doctrine, the court’s judgment must be reversed.


For the reasons set forth above, the district court’s judgment of dismissal is AFFIRMED to the extent, if any, that Fieger challenges the Justices’ past recusal decisions.


The district court’s judgment of dismissal is REVERSED to the extent Fieger challenges the constitutionality of Michigan’s recusal rule.


The case shall be REMANDED to the district court for further proceedings consistent with this opinion.

How the world sees judges.

Monday, December 25th, 2006

  You may want to use these videos to illustrate a CLE class.  Or you may just get a good laugh.  These videos are posted on Click to view.

 Judge Video’s
Jamie Kennedy Experiment – Judge Jaime  How not to conduct your court. (Note: Even though there is an amazing resemblance between this Judge and Judge Charlie Moore of Boone County, it is not Judge Moore.)
Judge Jamie Kennedy  TV ownership.  Judge hurries parties up.
Jamie Kennedy Experiment – Judge Jamie home improvement case
Greater Tuna: Funeral For The Judge
Greater Tuna, Pt. 6  courtroom scene
Greater Tuna, Pt. 5 speak English- Captain Kangaroo
Greater Tuna, Pt. 2  Stanley the defendant
Greater Tuna, Pt. 3 Judge died of a stroke
Greater Tuna, Pt. 4  You can’t kill a corpse
Judge Judy
JTS Judge Judy  If you get drunk at party Host is liable for your tort?
Judge Judy slaps more deadbeats
Judge scratching nose on microphone
Don’t Judge Too Quickly   lost coin for meter
Don’t Judge Too Quickly  shocking
Dont Judge to soon  daughter and father at grocery
Don’t Judge too quickly ! cat and knife
Dont judge too quickly mistaken holdup
Don’t judge  Airplane
Judge Mike
Judge Dredd Trailer  I am the Law
Ali G – Judge Pickles  5th. Amendment doesn’t apply in Britian
Judge Hatchett – aired 10/2/00  Scuba Tank pain and suffering
Judge JoJo  hand puppet judge

The world loses James Brown. Christmas greetings from the Boss

Monday, December 25th, 2006

    We have lost The Hardest Working Man in Show Business on Christmas Day.  James Brown danced off to Rock and Roll Heaven this morning.  The man who made us all feel good with “I feel good� and “Papa has a brand new bag� was in his seventies. He appeared in the movies The Blues Brothers and Rocky IV.  We particlularly enjoyed his stage act, where aids put a cape on his shoulders, and tried to get him to leave the stage, and then almost giving in and leaving, he threw off the cape and began his song and dance again. This was endlessly repeated to the joy of the audience. His brand of totally committed soul music will be missed.  See video clips of James Brown:

James Brown – Roundhouse – Please Please Please  Cape Dance,  –  James Brown – I Feel Good  -     James Brown – Super Bad

ALSO:   Someone sent us a link to The Boss singing a Christmas Greeting with the E Street Band, we pass it on to our great LawReader users.  Please go to:

Minnesotas high court is targeting trial misconduct by prosecutors. County attorneys are crying foul. Defense lawyers are applauding.

Monday, December 25th, 2006

By Paul Gustafson, Star Tribune


Minnesota prosecutors, the people accustomed to dishing out punishment, have found themselves on the receiving end of two recent state Supreme Court decisions that targeted improper closing arguments and other out-of-bounds trial behavior.

Prosecutors are bristling over the decisions, but many defense lawyers believe the stiff medicine is overdue.

In one case, the court reversed a gang member’s first-degree murder conviction because of what it called “pervasive” misconduct by the prosecutor, even though the state’s evidence was strong.

“You wouldn’t know the truth if it hit you in the face, would you, Mr. Mayhorn?” then-Clay County Attorney Lisa Borgen asked the defendant during questioning. The justices said Borgen tried to play on the passions of the jury and misstated the evidence. Borgen has since said she should not have questioned the defendant in that manner.

In another case the court changed a longstanding legal rule, putting the burden on prosecutors to prove that their misconduct didn’t substantially harm defendants’ rights in some criminal cases.

“We have identified numerous kinds of trial conduct that are improper for prosecutors. … Nevertheless, we continue to see cases in which prosecutors persist in clearly proscribed conduct,” Justice Helen Meyer wrote in September for a 4-3 majority in State vs. Ramey.

Ramsey County Attorney Susan Gaertner said that she understands that the goal is to do justice, not just win.

“But this is an adversarial system, and if you tie the hands of the prosecutors when they go into that arena, it doesn’t serve either public safety or justice,” she said.

Many defense lawyers and legal experts, however, think it’s about time that courts stop warning prosecutors about misconduct and start doing something to stop it.

“There has to be some kind of remedy, some consequences for behavioral errors that occur over and over again,” said Hennepin County Chief Public Defender Lenny Castro. “I don’t think the new standard is unfair at all.”

In Minnesota, prosecutors’ misconduct generally involves improper questioning of witnesses and closing arguments, according to prosecutors and defense lawyers.

Examples are when prosecutors voice their own opinion on the truthfulness of witnesses, appeal to the base emotions of jurors or use facts not introduced in evidence.

The Minnesota Supreme Court isn’t the only court expressing frustration with the issue.

In 2003, the Illinois Supreme Court overturned the convictions of two men given life sentences for their roles in the murder of a Chicago police officer, citing improper prosecutor trial tactics and arguments.

It threatened to overturn more cases to reduce the “alarming frequency” of prosecutor misconduct, which it called “a problem that courts across the country have, for the most part, been unable or unwilling to control.”

Appeals court judges in several states “are starting to wring their hands” trying to find effective ways to discourage prosecutor misconduct, said Peter Joy, a professor at Washington University School of Law in St. Louis.

Some judges have tried shaming misbehaving prosecutors by naming them in court decisions. But they found that it only enhanced the prosecutors’ reputations among peers, “because it shows they are willing to do what it takes to get the ‘bad guy’ … that they’re willing to get down in the gutter,” Joy said.

In most states, even when prosecutor misconduct is found, defendants still carry a heavy burden to prove that their constitutional rights were substantially violated, he said.

Some of the worst examples of misconduct attributed to prosecutors in other states, such as withholding evidence or hiding witnesses from the defense, have not cropped up in Minnesota courtrooms.

Prosecutors also complain that appeals court judges keep adding — after the fact — entries to the list of trial conduct they consider improper.

“Over the years, [judges] have found 20 different ways for prosecutors to commit misconduct in closing arguments. But it’s a little hard to understand how it’s misconduct if you didn’t know that it was wrong,” Anoka County Attorney Robert Johnson said.

County attorneys are upset about what they say is an unwarranted state investigation of Borgen, who is now a district court judge in Moorhead.

In August, the state Supreme Court reversed purported gang member Troy Mayhorn’s 2003 first-degree murder conviction because of what it called Borgen’s “pervasive” and “unprecedented” misconduct when she prosecuted the case.

Borgen’s attorney, Richard Pemberton, a former Minnesota State Bar Association president, said the facts will exonerate her. As a result of the court’s decision, he said, “a very dangerous man” whom Borgen took off the streets is unlikely to be retried.

Prosecutors worry that the Supreme Court’s new misconduct standard will allow defense attorneys to “lay in the weeds” and raise objections on appeal instead of at trial when the judge hearing the case can address them, said Gaertner.

Castro thinks Gaertner’s dire predictions about the impact of the Ramey decision won’t pan out. He recalled how prosecutors were wrong when they predicted in 1994 that a state Supreme Court decision requiring police to tape-record most suspects’ statements would cause problems.

Gaertner said the two decisions aren’t the same. “It’s not as if there was a bright line set down,” she said. “It seems like the line is a wavy one, and we’re not sure where it is.”

The Associated Press contributed to this story. Paul Gustafson • 651-298-1545 • 

Have you considered offering your services through a group legal insurance plan?

Monday, December 25th, 2006

The Herald-Leader published an article discussing group legal insurance.  Some lawyers are building their practice by signing up to offer legal services through insurance companies. 



It’s a problem we’ll all probably face at some point. 

Whether it’s to look over a mortgage, deal with a speeding ticket or draft a will, there are times when you need the expert advice of a lawyer. 

Legal plans, commonly called legal insurance, promise to do that at an affordable price. 

They work similar to medical insurance under a preferred provider organization. For a monthly fee, you can consult with the plan’s network of lawyers either for free or at a discounted rate. 

“We give access to a system that most people are simply frozen out of,” said John Gardner, of Pre-Paid Legal Services Inc. 

Common in Europe, group legal plans have been a foreign concept in the United States. But they’ve grown over the last 40 years as unions have negotiated them into contracts and, in more recent years, large companies have searched for affordable benefits to attract workers. 

Growth has also been spurred by the rise of identity theft — some plans cover lawyer fees associated with ID theft, but not actual losses — and news coverage of the Terri Schiavo drama, which generated interest in living wills. 

Some companies also offer legal plans to individuals, though they typically are less comprehensive and more expensive, industry experts say. 

Providers and clients 

Hyatt Legal Plans, which has been in the business 30 years and is owned by MetLife, offers a group legal plan that provides unlimited telephone consultation; document review; will and estate matters; debt collection and civil litigation defense; traffic ticket defense; juvenile criminal defense; and adoption assistance. 

In cases of identity theft, the plan’s lawyers will provide courtroom representation and deal with creditors, said Marcia Messett, Hyatt’s national marketing and sales director. 

“We covered identity theft before it was known as identity theft,” Messett said. “We covered it when it was just known as ‘somebody stole my wallet.’” 

ARAG, another provider of legal plans, offers a similar group legal plan. Steve Champion, a regional sales manager in Louisville, said it is marketed toward midsize and large companies and sells for $12 to $20 a month, depending on the company’s size. 

ARAG’s optional benefit costs the employer nothing and is financed completely through paycheck deductions, Champion said. 

Hyatt’s premium plan averages $16.95 a month per employee, depending on the company’s size, Messett said. The optional benefit is paid through a paycheck deduction, although companies can choose to subsidize all or part of the benefit. 

Like other employer-sponsored legal plans, you cannot use it to sue your boss, Messett said. Employment and business matters are not covered. 

“We would never be as successful as we are if we promoted that,” she said. 

Kentucky employers such as Yum Brands and Papa Johns offer the benefit, Messett said. 

Ashland Inc., which employs about 1,500 Kentuckians and 12,000 people worldwide, has offered the benefit in the United States since 2001, company spokesman Jim Vitak said. 

“People frequently may not know where to turn or the best way to seek an attorney,” Vitak said. “This kind of provides that one-stop avenue to them and can be very efficient and stress-relieving.” 

Limits to representation 

Legal plans, particularly those for individuals, do have their pitfalls. 

Individual plans typically have vast exceptions. Pre-Paid Legal’s, for example, does not cover adoptions and divorces for free. It covers traffic offenses, but not those involving alcohol, drugs, invalid driver’s licenses, improperly licensed vehicles, hit-and-run cases, leaving the scene of an accident and “unmeritorious cases.” 

And while it promises unlimited consultation, it places strict time limits on in-person consultation and courtroom representation. Once those limits are met you’ll have to pay a retainer to keep your lawyer, though the company promises a discount on hourly rates. 

Several legal plans also appear to be loosely regulated. 

Legal insurance, but not legal plans, is regulated by the Kentucky Department of Insurance. 

Those in the industry consider the terms interchangeable. But Kentucky, like many states, says there is a distinction. 

What’s the difference? It’s a little complicated. 

Insurance has an element of economic loss that triggers coverage; premiums are based on the insurer’s expected losses, said Tracy Bertram, director of the agency’s property and casualty division. Legal plans are more like subscription services that provide access to an attorney, he said. 

“We’d almost have to look at the contract to see which one it is,” Bertram said. 

Consumers who have problems can file a complaint with the state attorney general, but the office does not regulate the plans, a spokeswoman said. 

Nor does the Kentucky Bar Association. The bar association would become involved only if a legal plan tries to interfere or control the lawyer’s advice, Executive Director Bruce Davis said. 

Pre-Paid Legal’s plan, which sells for $26 a month, has come under fire by critics who accuse it of misrepresenting its benefits. In 2005, the company weathered a $9.9 million jury verdict for allegedly defrauding a Mississippi customer. 

Pre-Paid’s Gardner said his company is no different from other publicly traded companies “that occasionally get sued.” The company cannot control what independent agents say, Gardner said. He advises customers to read the fine print. 

“You think you can control what a thousand salespeople say?” Gardner said. “Some people oversell every product in the world. That is why we have the written materials. So you can see exactly what is covered and what is not covered.” 

When it comes to the identity theft services, be sure to read the fine print. 

The Identity Theft Resource Center says you should be aware of exactly what the plan’s cover. 

“Some of them are good, some are less than good,” Executive Director Jay Foley said. 

They frequently do not cover lost wages, a big issue since identity theft victims must spend time talking to lawyers and creditors during business hours, Foley said. Some services do not cover copy and notarization fees. 

If a local notary charges $15 per document and you need to send documents to six credit agencies, “that starts to get a little steep pretty quickly,” Foley said. 

size=1 width=”100%” noshade color=”#cccccc” align=center>

Reach Brandon Ortiz at (859) 231-1443, 1-800-950-6397, Ext. 1443, or 


Merry Christmas to all.

Sunday, December 24th, 2006

LawReader’s staff wishes you a very Merry Christmas.  We hope everyone takes time to enjoy this special holiday season with their loved ones.