Archive for the ‘Legal News’ category

Can You Say “Demagoguery?”

May 16, 2007

On Monday, I posted about this:

Alabama is one of the prime offenders in a U.S. civil litigation system that costs $865 billion per year, 75 percent of which is wasted, two new studies say.

The $664 billion in excess costs for civil justice amounts to a tort tax of $7,848 on a four-person household, according to a study released in March by the Pacific Research Institute.

Generous Alabama juries and relatively few caps on the cash they award helps make Alabama the 10th worst tort system in the country, said Lawrence McQuillan, the principal author of the PRI study, “Jackpot Justice.” Dollar figures weren’t available from the rating, which used a ratio of jury awards to the size of the state’s economy. . . .

The study concluded that $201 billion per year is spent on legitimate civil cases.

But the cost of the $664 billion per year in excess is lost lives and jobs, higher prices and a lower standard of living, the study said.

“Defensive medicine,” unnecessary tests ordered by doctors to avoid lawsuits, costs $124 billion, the study said. Rising health care prices leave 3.4 million people without insurance, it said.

So what makes Alabama one of the worst offenders? How is Alabama causing “defensive medicine” and high insurance costs while simultaneously driving doctors out of the state? Well, today, the Alabama Law Weekly says this:

A state-by-state examination of medical malpractice claims paid in 2006, including the District of Columbia, shows that Alabama was tied for 50th for the number of claims paid out per 1,000 active, nonfederally employed physicians. The study was conducted by the Kaiser Family Foundation.

Kaiser, a nonprofit health-policy research institute in California and Washington, D.C., reported that Alabama had a total of 41 medical malpractice claims paid, either through a judgment or settlement, and that number equated to 3.7 claims per 1,000 active, nonfederal physicians. Alabama’s number of claims per 1,000 physicians, which tied with Minnesota for the lowest figure in the nation, was well below the national average of 13.3 claims per 1,000 active, nonfederal physicians.

The Kaiser study also surveyed the claim amounts paid out last year. Alabama’s 41 claims paid resulted in a total payout of $15,867,500. That was an average payment of $387,012 per paid claim. Alabama’s average claims payment amount ranked 10th among the states, while the total dollars in paid claims amount ranked 38th nationally.

Out of who knows how many lawsuits, there were forty one total payouts. If that makes Alabama one of the leading causes of a medical malpractice crisis, I don’t think there’s much of a crisis.

Some Updates

March 8, 2007

First, to the questions about our local perjury trial.

Anthony Castaldo did not commit perjury:

Alabama attorney general special agent Anthony Castaldo was acquitted Wednesday on a misdemeanor perjury charge in a brief trial that exposed a state probe of a Bessemer judge.

As for the state probe of the judge, mum is still the word, and we still don’t know why Troy King wanted to prosecute Castaldo. But, we do have this from Bessemer DA Arthur Greene:

Bessemer District Attorney Arthur Green said Wednesday his investigation into a Bessemer judge’s handling of money associated with adult gaming machines found nothing amiss.

“The only thing he did wrong was make the ruling he did in making the machines legal,” Green said. “As far as any shenanigans, we didn’t find anything.”

Green said he conducted his own inquiry when he heard that Anthony Castaldo, a former investigator for Attorney General Troy King, was looking into allegations that Circuit Judge Dan King was handing down fines against arcade operators for contempt of court and mishandling some of the fine money.  . . .

Green said Castaldo did not handle the matter properly because his office was not consulted.

“Typically if someone is conducting an investigation in your jurisdiction, you would talk to the district attorney’s office,” Green said. “It was not handled professionally. … It struck us as strange.”

What? Troy King’s office handled something in an unprofesional manner? I’m shocked, just shocked. Anyway, the whole thing strikes me as strange.

Second update, it looks like the red light camera bill is already in trouble:

A bill Tuscaloosa officials are interested in that would allow red-light camera photographs to be used as grounds for traffic citations ran into more delays on Wednesday.

Rep. David Grimes, R-Montgomery, has tried for five years to pass legislation that would authorize cities to use photographs of license plates of vehicles running red lights to back misdemeanor criminal citations.

Grimes’ bill was in the House Public Safety Committee, but he withdrew it from consideration to mull over proposed amendments.

He said he believes the committee will send the bill to the House this time.

“There’s sentiment in the committee to pass it,” Grimes said.

However, at least one committee member, Rep. Randy Wood, D-Anniston, said he doesn’t like the bill.

“We need to carry it over a long time,” he said.

They need to crumple it up and throw it in the trash.

Third, Homewood Gardens is no more. Good thing, too; all those lower middle class renters living right there in downtown Homewood, ewww, how unseemly.

Finally, Brian has pictures of the inside of Enterprise High School.

A New Favorite Footnote?

December 13, 2006

The current champ is here. The challenger also comes from the Seventh Circuit. There’s a federal law that requires all federal prisoners upon release to provide a blood sample that will then be used for a nationwide DNA database. In this case, the prisoner argued, among other things, that extracting the blood would be cruel and unusual punishment. His truly original (and originalist) argument is dismissed in footnote three:

Hook provides an uncited, but novel assertion that the Founding Fathers would have considered “blood extraction” to be “cruel and unusual punishment” because, purportedly, “[v]ampires were feared and vilified” at the time of the Founding. Even accepting this proposition, blood extraction by a vampire is certainly distinguishable from a sanitary blood draw under current medical practice.

Back At Work

October 27, 2006

Why? Because that’s what manly men do. We don’t sit around at the hospital ooohing and ahhing over newborns, no matter how cute they are. No sir. We head back out into the jungle, to slay the wildebeests so that our family will have food to eat. Grhhhh. That’s what us men do. Until lunch anyway.

And, because some of you may read this blog for something other than information about me and mine, I will herein post some actual news.

It looks like I was right that Judge Vance’s decision about felon voting rights won’t change anything for this election. Here’s the story:

The Alabama Supreme Court has cleared the way for people who have been convicted of felonies such as DUI, attempted burglary and liquor law violations to register to vote.

In a 5-4 decision released Thursday, the court denied the state of Alabama’s request to stay a portion of Jefferson County Judge Robert Vance’s August ruling that allowed all felons to vote. The portion required the Secretary of State and Jefferson County’s registrar to stop refusing voter registration to people who have been convicted of crimes that do not involve moral turpitude.

What led to the case in the first place was that the registrars were denying ALL felons the right to vote. The problem with that is Alabama’s constitution prohibits from voting only those people convicted of crimes involving “moral turpitude.” That also means those whose crimes did not involve moral turpitude get to vote. So part one of the opinion ordered the registrars to allow the non-turpitudinous to vote.

But that led to the second part of the opinion. The legislature has never defined moral turpitude. The result has been ad hoc decisions made by local officials, the attorney general, and Alabama courts. Judge Vance wiped all of that out and held that until the legislature defined moral turpitude, all felons get to vote. This is the controversial part, and it appears that it will not go into effect.

So right now, the situation is status quo ante. Anyone who could vote under the old ad hoc system can vote now. Those who needed the second part of the decision cannot.

Update: In the comments, Lee 1) reminds me that the controversial part won’t go into effect because Judge Vance had stayed it; and 2) is kind enough to provide a link to the Court’s decision denying the stay.

Five Justices voted to deny it: See, Lyons, Harwood, Woodall and Parker.

Four voted to grant it: Nabors, Stuart, Smith, and Bolin.

The majority basically says that the order is nothing more than a command to do what the law already required: Allow felons to vote unless they’ve been convicted of a crime of moral turpitude.

Nevertheless, Justice Bolin would have granted the stay because he thinks the case has serious standing problems. Apparently the named plaintiffs were all non-moral turpitude felons and had all had been able to register to vote prior to the conclusion of the trial. So, the argument goes, they had no reason to complain about all felons being denied the vote, or even for they themselves being denied the vote.

Now that would certainly be a good reason to reverse, and I would not be surprised if that ends up being the actual reason for reversal, but it seems like a strange reason to stay an order that doesn’t do anything but enforce pre-existing law.

Justice Bolin is worried about confusion during the upcoming election, but if there is confusion, Judge Vance did not create it. Sure it would be easier for the registrars to deny all felons the right to vote, but Alabama law does not allow that. Alabama law allows felons to vote unless they’ve committed a crime of moral turpitude. Judge Vance told the registrars they have to follow the law; they can’t cut corners by simply denying all felons the vote. If the registrars have a hard time with that, they can blame Alabama law, not Judge Vance.

Removing “Rogue Judges”

October 23, 2006

That’s the subject of this article. It’s basically a two stage process. Someone first complains to the Judicial Inquiry Commission. Then, if the commission thinks it’s meritorious, they file formal charges with the Court of the Judiciary. That’s where the “trial” would occur. The article discusses candidate’s views on these recent changes to the process:

Informing judges each time a complaint has been made, including who made it. Previously, the commission would dismiss frivolous complaints without the judge even learning about it. Only after the commission brought formal charges would judges be informed about the allegations, and even then, the identity of the original complainant would be kept secret.

Keeping judges informed about the details of an investigation as it progresses. The commission now is required to send the judge under scrutiny a copy of all documents in the investigative file every four weeks.

Requiring complaints to be sworn in front of a notary public. Previously, people could simply submit written complaints to the Judicial Inquiry Commission.

Requiring all nine members to be present in order to hold a vote to bring charges against a judge. The new rules also require the commission members to meet in order to decide whether to start an investigation, and they must do so within 42 days of the filing of the complaint. Previously, commission staff could perform preliminary work.

The high court also made changes to the Court of the Judiciary. The justices initially required a unanimous vote to sanction a judge. Four months later, the justices backed off that position, requiring a unanimous vote to remove a judge and six votes out of nine to impose lesser punishments. Originally, a simple majority was all that was needed to remove a judge from office.

As you might suppose, opinions vary about the merits of the changes. The affect has been to reduce the number of complaints and sanctions. Whether that’s because the new rules filter out frivolous complaints, or prevent meritorious complaints, is anyone’s guess.

Some of the new rules, I think, are definitely a good idea. For instance, setting a time limit on the beginning of an investigation. No-one benefits from delayed investigations.

On the other hand, I think this is a great point:

Randall Cole, a circuit judge for DeKalb and Cherokee counties in northeast Alabama who chairs the Judicial Inquiry Commission, said he continues to have concerns about the rule changes five years later. He said people routinely call the commission’s staff with complaints about judges but fail to follow through once they learn about the process.

Cole said that shortly after the new rules went into effect, he talked to an employee of the court system who had a fairly serious complaint against a judge. He said he does not recall the details of the allegation but added that the employee did not want to make a formal complaint for fear that the judge would retaliate.

Lawyers especially are reluctant to file complaints out of concern that it will impact their clients on other cases, Cole said.

Complaints rarely result in charges. Margaret Childers, the executive director of the Judicial Inquiry Commission, said the Court of the Judiciary disciplines about one judge per year. Earlier this year, Talladega County District Judge Tommy Dobson was suspended for two months without pay for letting an assistant decide hundreds of cases without his oversight.

Still, even nonmeritorious complaints serve a purpose, Cole said.

“I think one of the important functions of the commission is to offer people a forum to complain about a judge,” he said. “If that door is closed to them in any way and they’re not allowed to file a complaint, I think that’s damaging to the system generally.”

I agree with Judge Cole. Making people jump through a thousand hoops just to file a complaint may eliminate frivolous complaints, but it’s also going to hinder meritorious complaints and even in the case of frivolous ones will reinforce the complainant’s belief that the system is corrupt. That creates an audience for the real wackos: J.A.I.L For Judges and their kind.

So make it as easy as possible to file the complaint. Let the complainant remain anonymous, at least initially. The subsequent investigation can sort out the good from the bad. And if formal charges result, then reveal the complainant.

A Post For Federal Practitoners And Egg Heads

October 19, 2006

Those are the only type of folks who will find this post interesting, as it involves a federal sentencing decision from the Seventh Circuit. But what a decision!

As we all know, the Federal Sentencing Guidelines are now just that: Guidelines. They are one factor among several a judge should use in setting the sentence. Well, in this case, as in many others, the defendant argued on appeal that the judge reached and unreasonable sentence. Here is the court’s response:

The defendant pleaded guilty to being a felon in possession of a firearm. The guidelines range for his offense was 188 to 235 months, but the judge sentenced him to 264 months, and the defendant challenges the sentence as unreasonable.

Because it exceeded the guidelines range, there is no presumption that it is reasonable. United States v. Robinson, 435 F.3d 699, 701 (7th Cir. 2006). But the standard of reasonableness, introduced by the Booker decision, confers broad sentencing discretion. The judge must consider the guidelines but is in no sense bound by them. He is bound only by the statutory sentencing factors, 18 U.S.C. § 3553(a), which are both numerous and vague, thus giving the judge a great deal of running room. United States v. DeMaree, 459 F.3d 791, 795 (7th Cir. 2006); United States v. Walker, 447 F.3d 999, 1007 (7th Cir. 2006)

There was no basis for the defendant’s challenging the exercise of discretion by the sentencing judge in this case—and, we add, in cases like it. Not because there were no mitigating factors, but because the balance that the judge struck between them and the aggravating factors was so far inside the outer bounds of his sentencing discretion as to make the claim of unreasonableness frivolous and the appeal a compelling candidate for anAnders brief.

When we put this to the defendant’s lawyer at argument, she said that the defendant wanted her to appeal. No doubt; had he not wanted her to appeal, it would have been serious misconduct for her to appeal. But a defendant has no right to file a frivolous appeal, and his lawyer has a duty to file an Anders brief rather than to argue frivolous grounds for reversal. McCoy v. Court of Appeals of Wisconsin, District 1, 486 U.S. 429, 438 (1988); United States v. Cooper, 170 F.3d 691, 692 (7th Cir. 1999); United States v. Osuna, 141 F.3d 1412, 1415 (10th Cir. 1998); United States v. Humphrey, 7 F.3d 1186, 1191 (5th Cir. 1993).

The reason this blows my mind is that when the Government appeals a sentence as being too lenient, the sentence is routinely reversed. There’s none of this stuff about wide discretion and deferring to the trial court. The appellate courts – including the Seventh Circuit – almost always find an abuse of discretion when the trial court sentences the defendant below the guidelines. Now here is the Seventh Circuit (Posner, who else?) saying that when the situation is reversed – i.e. the defendant arguing the sentence is too harsh – it borders on misconduct for the attorney to file the appeal; that an appellate court has no business re-weighing all these factors.  

The court considered some of the defendant’s arguments in favor of a less severe sentence and then concluded:

But we have gone on at too great a length about the infirmities in the defendant’s arguments. These are arguments to address to a sentencing judge, not to an appellate court. No precise weights can be assigned to such factors in the sentencing balance as the dangerousness of the criminal and (as mitigating that dangerousness) his age and ill health. The striking of a balance of uncertainties can rarely be deemed unreasonable, and certainly not in this case.

That makes great sense. But it needs to apply to appellate arguments by the Government too. If these are issues best left to the trial court in the one situation, they are likewise best left to the trial court in the other situation.

If I was practicing in the Seventh Circuit, the next time the Government appealed one of my clients’ sentences, this language would be all over my brief. Shoot, I’m in the Eleventh, and I’ll still gonna make heavy use of it.

“I don’t think he was ever called ignorant or unaware of the law,”

September 21, 2006

That’s attorney George Douglas, speaking of former Alabama AG Bill Pryor. The occasion for the remark? Current AG Troy King’s opinion – contrary to an AG opinion by Pryor – that Alabama’s compensation for indigent defense does not include the attorney’s overhead expenses.

The issue has been in court ever since King issued this AG opinion, holding that attorneys representing indigents can not recover overhead expenses. A circuit court has already ruled against King, and the state Supremes heard oral argument yesterday. King ought to lose. Whether he will or not, I do not know, but he should.

Alabama Code 15-12-21(d) sets the fees for indigent defense:

the amount of the fee shall be based on the number of hours spent by the attorney in working on the case and shall be computed at the rate of sixty dollars ($60) per hour for time expended in court and forty dollars ($40) per hour for time reasonably expended out of court in the preparation of the case. The total fees paid to any one attorney in any one case, from the time of appointment through the trial of the case, including motions for new trial, shall not exceed the following:

(1) In cases where the original charge is a capital offense or a charge which carries a possible sentence of life without parole, there shall be no limit on the total fee.

(2) Except for cases covered by subdivision (1), in cases where the original charge is a Class A felony, the total fee shall not exceed three thousand five hundred dollars ($3,500).

(3) In cases where the original charge is a Class B felony, the total fee shall not exceed two thousand five hundred dollars ($2,500).

(4) In cases where the original charge is a Class C felony, the total fee shall not exceed one thousand five hundred dollars ($1,500).

(5) In juvenile cases, the total fee shall not exceed two thousand dollars ($2,000).

(6) In all other cases, the total fee shall not exceed one thousand dollars ($1,000).

Notwithstanding the above, the court for good cause shown may approve an attorney’s fee in excess of the maximum amount allowed. Counsel shall also be entitled to be reimbursed for any expenses reasonably incurred in the defense of his or her client, to be approved in advance by the trial court. 

The dispute centers on the highlighted language. Before King’s opinion, everyone was in agreement that this language included overhead expenses. That is, every time an attorney represents a client, part of the fee is that client’s share of the expenses incurred in keeping the office open: rent, utilities, employees, equipment, etc. An opinion by Bill Pryor even held that an attorney practicing out of his apartment could recover overhead. King, however, decided that this language meant only expenses directly related to the defense: expert witnesses, filing fees, court reporters, etc.

So how did King change the situation? Here is the key section of his opinion:

The decision of the Alabama Court of Criminal Appeals that office overhead expenses were reimbursable was based on the predecessor language to the language emphasized above: “any expenses rea­sonably incurred in such defense.”

His argument is that by replacing “such defense” with “the defense of his or her client” the legislature clearly intended to stop the existing practice of reimbursing attorneys for overhead expenses.

Can you say “results oriented reasoning?” 

First, the important language is “reasonably incurred in.” It does not say “directly related to.” Part of every fee is a share of the expenses necessary for the office to stay open. A lawyer can not represent clients without an office and equipment any more than a mechanic can work on cars without a shop and tools. That is just the cost of doing business, and every client pays for it because every client benefits from it. Overhead is incurred in every case. The reasonableness of the amount may be disputable, but the necessity of some amount is not.

Second, the new language says the same thing as did the old language: “Such defense” obviously refers to the defense of the client. So if the overhead was recoverable under the old language, it is also recoverable under the new language. 

Why does this matter? Under King’s interpretation, lawyers who represent poor people are doing so for free. The forty to sixty bucks an hour that they now receive will barely cover their overhead. That means they get no compensation for their services to the client. For a typical jury trial, that could mean the lawyer receives no compensation for several days worth of work.

That is not fair to the lawyer or to the client. As for the lawyer, sure we all ought to occasionally give away our services for free. But that is very different from the state fulfilling its constitutional obligations by mandating that lawyers work for free. As for the client, it’s all about incentives. Some attorneys cannot afford to work for free. Others can, but are not going to sacrifice three hundred dollar hours for zero dollar hours. Those who are willing and able will still have to do the indigent’s work in the shortest time possible. When the compensation is zilch, corners must be cut.

The result is that one side of the adversarial system is not well represented. That means the system does not work. The truth, then, is the ultimate victim.