RICHMOND, Virginia - A commission created to study Virginia's mental health system will examine the criteria used to force treatment of mentally unstable people — a topic that has invited scrutiny since a deadly shooting spree at a state university.
Virginia's involuntary commitment laws are among several issues a special mental health commission of the Supreme Court of Virginia plans to tackle at a meeting Friday. The Commission on Mental Health Law Reform was created last year and has been working on a mental health reform package for the state's 2008 legislative session.
The topic gained urgency in April, after Virginia Tech student Seung-Hui Cho killed 32 students and faculty at Tech before taking his own life. Cho had been ordered into involuntary outpatient treatment in 2005, after a special justice found that he presented "an imminent danger to himself as a result of mental illness."
"What's ridiculous about this is we're talking about changing the bar to let people intervene and put them into treatment," Earley said. "Just by lowering the standard a little doesn't mean that someone's going to be abandoned for years and years in an institution."
But others on the task force are concerned that changing the standard will infringe on people's civil rights and lead to warehousing of the mentally ill, Earley said.
Mark Bodner, a special justice who heads up the commitment task force, said he and two other judges in Fairfax, just south of Washington, D.C., handle between 650 and 700 involuntary commitment cases each year. He said the current commitment language has not been a problem.
"I think the standard works well," Bodner said. "To me, the language demonstrates the gravity of the situation."
University of Virginia law professor Richard Bonnie, who chairs the commission, said the panel also plans to focus on facilitating psychiatric advance directives — legal documents the mentally ill draft to determine how they would like to be treated if they are ever committed involuntarily.
Monday, July 16, 2007
Supreme Court Blocks Execution of Mentally Ill Killer in Texas
Pete Yost
The Associated Press
06-29-2007
A divided Supreme Court on Thursday blocked the execution of a Texas killer whose lawyers argued that he should not be put to death because he is mentally ill.
The Court ruled 5-4 in the case of Scott Louis Panetti, who shot his in-laws to death 15 years ago in front of his wife and young daughter.
The convicted murderer says that he suffers from a severe documented illness that is the source of gross delusions. "This argument, we hold, should have been considered," said Justice Anthony Kennedy, who wrote the majority opinion.
Panetti's lawyers wanted the Court to determine that people who cannot understand the connection between their crime and punishment because of mental illness may not be executed.
The Eighth Amendment of the Constitution bars "the execution of a person who is so lacking in rational understanding that he cannot comprehend that he is being put to death because of the crime he was convicted of committing," they said in court papers.
In dissent, Justice Clarence Thomas said that Panetti had petitioned the federal courts twice in his case, but that the law allows only one petition.
"The court bends over backwards to allow Panetti" to bring his current claim, despite no evidence that his condition has worsened, or even changed, since 1995, Thomas wrote.
One of Panetti's lawyers, Scott Hampton of Austin, Texas, said he was relieved.
"Executing Scott Panetti would have been a mindless, meaningless, miserable spectacle," said Hampton.
Siding with Kennedy in the majority were Justices John Paul Stevens, David Souter, Ruth Bader Ginsburg and Stephen Breyer.
Joining Thomas in dissent were Chief Justice John Roberts and Justices Antonin Scalia and Samuel Alito.
Texas said the Court should reject Panetti's appeal on procedural grounds. But it also argued that the Court should set a tougher standard for mental illness exceptions to capital punishment. Only if a death row inmate "lacks the capacity to recognize that his punishment both is the result of his being convicted of capital murder and will cause his death" should his execution be halted, the state said. Panetti is competent on that basis, it said.
Panetti was condemned for the September 1992 slayings of his estranged wife's parents, Joe Alvarado, 55, and Amanda Alvarado, 56, at their Fredericksburg home in the Texas Hill Country. His wife was living with them at the time. A week earlier she obtained a court order to keep him away.
His wife and 3-year-old daughter, sprayed with blood when Panetti shot his in-laws, were held hostage until he surrendered after a lengthy standoff with police. He blamed it all on "Sarge," one of his multiple personalities.
A former ranch hand and native of Hayward, Wis., Panetti had a history of mental problems before his conviction, recording 14 hospital stays over 11 years.
Four courts have said he was competent when he fired his trial lawyers. A jury and two courts rejected his defense of not guilty by reason of insanity. He personally argued that only an insane person could prove the insanity defense, dressing in cowboy clothing and submitting an initial witness list that included Jesus Christ and John F. Kennedy.
Then-Justice Lewis Powell said 20 years ago that a person may not be put to death if he cannot perceive "the connection between his crime and his punishment."
The case is Panetti v. Quarterman, 06-6407.
Copyright 2007 Associated Press. All Rights Reserved. This material may not be published, broadcast, rewritten, or redistributed.
Stephanie K. McCoy
Paralegal
Cohen Kennedy Dowd & Quigley
The Camelback Esplanade I
2425 East Camelback Road, Suite 1100
Phoenix, Arizona 85016
Ph: 602.252.8400
www.ckdqlaw.com
The Associated Press
06-29-2007
A divided Supreme Court on Thursday blocked the execution of a Texas killer whose lawyers argued that he should not be put to death because he is mentally ill.
The Court ruled 5-4 in the case of Scott Louis Panetti, who shot his in-laws to death 15 years ago in front of his wife and young daughter.
The convicted murderer says that he suffers from a severe documented illness that is the source of gross delusions. "This argument, we hold, should have been considered," said Justice Anthony Kennedy, who wrote the majority opinion.
Panetti's lawyers wanted the Court to determine that people who cannot understand the connection between their crime and punishment because of mental illness may not be executed.
The Eighth Amendment of the Constitution bars "the execution of a person who is so lacking in rational understanding that he cannot comprehend that he is being put to death because of the crime he was convicted of committing," they said in court papers.
In dissent, Justice Clarence Thomas said that Panetti had petitioned the federal courts twice in his case, but that the law allows only one petition.
"The court bends over backwards to allow Panetti" to bring his current claim, despite no evidence that his condition has worsened, or even changed, since 1995, Thomas wrote.
One of Panetti's lawyers, Scott Hampton of Austin, Texas, said he was relieved.
"Executing Scott Panetti would have been a mindless, meaningless, miserable spectacle," said Hampton.
Siding with Kennedy in the majority were Justices John Paul Stevens, David Souter, Ruth Bader Ginsburg and Stephen Breyer.
Joining Thomas in dissent were Chief Justice John Roberts and Justices Antonin Scalia and Samuel Alito.
Texas said the Court should reject Panetti's appeal on procedural grounds. But it also argued that the Court should set a tougher standard for mental illness exceptions to capital punishment. Only if a death row inmate "lacks the capacity to recognize that his punishment both is the result of his being convicted of capital murder and will cause his death" should his execution be halted, the state said. Panetti is competent on that basis, it said.
Panetti was condemned for the September 1992 slayings of his estranged wife's parents, Joe Alvarado, 55, and Amanda Alvarado, 56, at their Fredericksburg home in the Texas Hill Country. His wife was living with them at the time. A week earlier she obtained a court order to keep him away.
His wife and 3-year-old daughter, sprayed with blood when Panetti shot his in-laws, were held hostage until he surrendered after a lengthy standoff with police. He blamed it all on "Sarge," one of his multiple personalities.
A former ranch hand and native of Hayward, Wis., Panetti had a history of mental problems before his conviction, recording 14 hospital stays over 11 years.
Four courts have said he was competent when he fired his trial lawyers. A jury and two courts rejected his defense of not guilty by reason of insanity. He personally argued that only an insane person could prove the insanity defense, dressing in cowboy clothing and submitting an initial witness list that included Jesus Christ and John F. Kennedy.
Then-Justice Lewis Powell said 20 years ago that a person may not be put to death if he cannot perceive "the connection between his crime and his punishment."
The case is Panetti v. Quarterman, 06-6407.
Copyright 2007 Associated Press. All Rights Reserved. This material may not be published, broadcast, rewritten, or redistributed.
Stephanie K. McCoy
Paralegal
Cohen Kennedy Dowd & Quigley
The Camelback Esplanade I
2425 East Camelback Road, Suite 1100
Phoenix, Arizona 85016
Ph: 602.252.8400
www.ckdqlaw.com
Saturday, June 30, 2007
Supreme Court Limits Student Speech in 'Bong Hits 4 Jesus' Case
Mark Sherman
The Associated Press
06-26-2007
The Supreme Court tightened limits on student speech Monday, ruling against a high school student and his 14-foot-long "Bong Hits 4 Jesus" banner.
Schools may prohibit student expression that can be interpreted as advocating drug use, Chief Justice John Roberts wrote for the Court in a 5-4 ruling.
Joseph Frederick unfurled his homemade sign on a winter morning in 2002, as the Olympic torch made its way through Juneau, Alaska, en route to the Winter Olympics in Salt Lake City.
Frederick said the banner was a nonsensical message that he first saw on a snowboard. He intended the banner to proclaim his right to say anything at all.
His principal, Deborah Morse, said the phrase was a pro-drug message that had no place at a school-sanctioned event. Frederick denied that he was advocating for drug use.
"The message on Frederick's banner is cryptic," Roberts said. "But Principal Morse thought the banner would be interpreted by those viewing it as promoting illegal drug use, and that interpretation is plainly a reasonable one."
Morse suspended the student, prompting a federal civil rights lawsuit.
Students in public schools don't have the same rights as adults, but neither do they leave their constitutional protections at the schoolhouse gate, as the Court said in a landmark speech-rights ruling from Vietnam era.
The Court has limited what students can do in subsequent cases, saying they may not be disruptive or lewd or interfere with a school's basic educational mission.
Frederick, now 23, said he later had to drop out of college after his father lost his job. The elder Frederick, who worked for the company that insures the Juneau schools, was fired in connection with his son's legal fight, the son said. A jury recently awarded Frank Frederick $200,000 in a lawsuit he filed over his firing.
Joseph Frederick, who has been teaching and studying in China, pleaded guilty in 2004 to a misdemeanor charge of selling marijuana at Stephen F. Austin State University in Nacogdoches, Texas, according to court records.
Conservative groups that often are allied with the administration are backing Frederick out of concern that a ruling for Morse would let schools clamp down on religious expression, including speech that might oppose homosexuality or abortion.
The case is Morse v. Frederick, 06-278.
Copyright 2007 Associated Press. All Rights Reserved. This material may not be published, broadcast, rewritten, or redistributed.
Stephanie K. McCoy
Paralegal
Cohen Kennedy Dowd & Quigley
The Camelback Esplanade I
2425 East Camelback Road, Suite 1100
Phoenix, Arizona 85016
Ph: 602.252.8400
www.ckdqlaw.com
The Associated Press
06-26-2007
The Supreme Court tightened limits on student speech Monday, ruling against a high school student and his 14-foot-long "Bong Hits 4 Jesus" banner.
Schools may prohibit student expression that can be interpreted as advocating drug use, Chief Justice John Roberts wrote for the Court in a 5-4 ruling.
Joseph Frederick unfurled his homemade sign on a winter morning in 2002, as the Olympic torch made its way through Juneau, Alaska, en route to the Winter Olympics in Salt Lake City.
Frederick said the banner was a nonsensical message that he first saw on a snowboard. He intended the banner to proclaim his right to say anything at all.
His principal, Deborah Morse, said the phrase was a pro-drug message that had no place at a school-sanctioned event. Frederick denied that he was advocating for drug use.
"The message on Frederick's banner is cryptic," Roberts said. "But Principal Morse thought the banner would be interpreted by those viewing it as promoting illegal drug use, and that interpretation is plainly a reasonable one."
Morse suspended the student, prompting a federal civil rights lawsuit.
Students in public schools don't have the same rights as adults, but neither do they leave their constitutional protections at the schoolhouse gate, as the Court said in a landmark speech-rights ruling from Vietnam era.
The Court has limited what students can do in subsequent cases, saying they may not be disruptive or lewd or interfere with a school's basic educational mission.
Frederick, now 23, said he later had to drop out of college after his father lost his job. The elder Frederick, who worked for the company that insures the Juneau schools, was fired in connection with his son's legal fight, the son said. A jury recently awarded Frank Frederick $200,000 in a lawsuit he filed over his firing.
Joseph Frederick, who has been teaching and studying in China, pleaded guilty in 2004 to a misdemeanor charge of selling marijuana at Stephen F. Austin State University in Nacogdoches, Texas, according to court records.
Conservative groups that often are allied with the administration are backing Frederick out of concern that a ruling for Morse would let schools clamp down on religious expression, including speech that might oppose homosexuality or abortion.
The case is Morse v. Frederick, 06-278.
Copyright 2007 Associated Press. All Rights Reserved. This material may not be published, broadcast, rewritten, or redistributed.
Stephanie K. McCoy
Paralegal
Cohen Kennedy Dowd & Quigley
The Camelback Esplanade I
2425 East Camelback Road, Suite 1100
Phoenix, Arizona 85016
Ph: 602.252.8400
www.ckdqlaw.com
Defense Lawyer in Atlanta Child Slayings Case Says DNA Tests Inconclusive
R. Robin McDonald
Fulton County Daily Report
06-26-2007
A defense lawyer for Wayne Williams, the man long identified as the serial killer in a string of 29 slayings that terrorized Atlanta from 1979 to 1981, said that DNA tests of dog hairs recovered from some of the victims are inconclusive.
On Monday, John R. "Jack" Martin -- attorney for Williams -- issued the statement after receiving a report containing the results of comparative DNA tests on hairs taken from Williams' German shepherd mix, Sheba, and dozens of suspected dog hairs recovered from 11 black men and boys whose slayings were attributed to Williams.
Those animal hairs, preserved for more than 25 years, played a key role in Williams' 1982 double-murder conviction.
DNA testing was not available for use in criminal investigations at the time of Williams' 1982 murder trial. Using less definitive testing, the state wove a web of forensic evidence that linked Williams to his victims through blood stains, human and dog hairs and hundreds of fibers from carpets, clothing and bed linens.
Martin said that the results of the DNA tests do not exclude Williams' dog as the source of dozens of hairs found on 11 of 12 victims whose slayings were introduced as evidence in Williams' 1982 trial. But, Martin said, given the nature of the DNA tested, "It cannot be concluded that the hairs came from Mr. Williams' dog. Thousands of dogs in the Atlanta area, including a number of different breeds, possess the type of DNA profile found. ... In sum, Mr. Williams' dog is neither specifically excluded nor included as the dog or dogs whose mitochondrial DNA profile matches the hairs found on some of the bodies."
On Monday, Aimee Maxwell, executive director of the Georgia Innocence Project, cautioned that DNA testing of animal hairs is still "in its infancy." She said DNA testing in animals is "not as discriminating" as human DNA tests because of the interbreeding common among dogs. In addition, if the dog hair evidence did not include the root of the hair, only less precise mitochondrial DNA testing could be done, she said.
Such testing would reveal only the DNA strand inherited from the mother, Maxwell said, not the strands inherited from both parents. "It would not lead to this actual, individual dog."
But, Maxwell added, if there is not even a partial DNA match, then
defense attorneys could safely argue that Williams' dog was not the
source of the hairs recovered from the victims. "That's an absolute
exclusion." If there is a partial match, Maxwell said the results will
likely not change the status of the case.
Williams was convicted of the murders of two men -- Nathaniel Cater, 28, and Jimmy Ray Payne, 21. But the jury found cause to believe that Williams had also killed 10 other victims, ages 11 to 28, though he was never charged with those deaths.
Following Williams' conviction, authorities closed the books on the murders of 24 black boys, teenagers and young men, known as the Atlanta child murders. Five more slayings and a disappearance were never resolved. Williams always has asserted his innocence in all the slayings.
Fulton County, Ga., District Attorney Paul L. Howard Jr. plans today to announce the results of the dog hair DNA tests, which were sent to him Friday following testing by the forensic veterinary laboratory at the University of California, Davis, the only private lab in the United States that does animal DNA testing. The report arrived at Howard's office a day after the 26th anniversary of Williams' arrest on June 21,
1981.
Howard is scheduled to hold a news conference at the Midtown studio WAOK-AM, the sister station of WVEE-FM, or V-103, where two years ago DeKalb County's chief law enforcement officer pronounced Williams an innocent man.
In a formal pleading in which he agreed to let the DNA testing go forward, Howard had called comparative DNA tests of dog hairs the "least significant of the trace evidence presented." At Williams' trial, forensic experts had testified that hairs from Williams' dog were a microscopic match to dog hairs recovered from 11 of the 12 victims who figured in Williams' trial.
In asking for the DNA tests, Williams' defense team, Martin and Lynn H. Whatley, had hoped to secure ammunition for Williams' lingering federal habeas corpus appeal as well as evidentiary fodder for an extraordinary motion for a new trial.
On Monday, Martin said defense attorneys are still waiting for "the more important results" of a DNA analysis of two human scalp hairs found on one of Williams' suspected victims. The FBI crime laboratory is doing comparative DNA testing of those scalp hairs with DNA samples that Williams provided voluntarily, Martin said. "These results are much more likely to be definitive. ... It is our hope that the human hair analysis can give us some definitive answers."
If the new DNA tests show no matches between evidence recovered from the slaying victims and Williams or his dog, Martin and Whatley have said they intend to file an extraordinary motion for a new trial. Williams' federal habeas appeal seeking his release from prison has been rejected, but Williams' has an appeal of the district judge's rulings pending before the 11th U.S. Circuit Court of Appeals.
In addition to DNA tests on the animal hairs, Fulton County Superior Court Judge Thelma Wyatt Cummings Moore last January also approved DNA tests to compare bloodstains found on the backseat of Williams' station wagon with blood from two of his suspected victims. Moore also authorized the DNA analysis of two human hairs recovered from an 11-year-old to determine whether the DNA matched that of Williams.
When Howard acquiesced last January to a defense petition for DNA tests of blood, animal hair and human hair preserved from the Williams trial, the district attorney was careful to note in his formal response to Williams' motion that no matter what the results of comparative DNA tests, they would not have changed the outcome of Williams' trial.
At Williams' trial, experts testified that two foreign scalp hairs recovered from the body of 11-year-old slaying victim Patrick Baltazar were a microscopic match to scalp hair taken from Williams. And they linked samples of human bloodstains recovered from Williams' car to two of Williams' suspected victims -- John Porter, 28, and William Barrett, 16. Experts testified that the stains from the car matched the blood types in combination with rare blood enzymes recovered from the victims' clothing.
Williams' attorneys petitioned for the DNA tests last year after the Daily Report located the 25-year-old evidence in a vault in the Fulton County Courthouse. The newspaper recruited experts to examine the forensic evidence in the Williams case in 2005 after then-DeKalb County Police Chief Louis Graham publicly asserted his belief in Williams' innocence on radio host Frank Ski's morning show on WVEE-FM. At the same time, Graham reopened six DeKalb homicides that had been linked to Williams, though he was never charged.
In a 2005 interview with the Daily Report, Graham dismissed the legitimacy of the carpet fiber evidence and expressed skepticism as to whether any forensic evidence still existed that could be tested for DNA.
The newspaper found during its yearlong investigation into the forensic case against Williams that DeKalb detectives never sought to locate or review the forensic evidence in the case. After Graham resigned under fire last year, his successor quietly closed the cases, saying detectives had turned up no new information.
Meanwhile, after locating the 25-year-old evidence in a vault at the Fulton courthouse, the Daily Report -- in conjunction with the Georgia Innocence Project -- filed a public records request with Fulton Superior Court Chief Judge Doris L. Downs seeking comparative DNA testing of the human and animal hair and blood evidence. Downs rejected that request, saying that state public records laws -- which permit a review of trial exhibits with the permission either of the trial judge or the chief judge -- did not cover independent forensic testing.
But Williams' defense lawyers accompanied the Daily Report, Maxwell and lawyers from the offices of the Fulton County district attorney and the Georgia attorney general to look at stored microscopic slides of hair and fiber that were preserved from Williams' trial.
Prosecutors subsequently located the rear seat of Williams' station wagon -- from which forensic investigators had extracted blood samples in 1981 in the evidence vault -- as well as the bloodstained clothes of two victims to which those samples had been favorably compared.
Martin said Monday that forensic analysts were unable to extract any blood samples from the car seat, and those used at trial are missing, so no DNA tests could be done.
A short time later, Williams' lawyers sought their own DNA tests under a state statute passed in 2003 that permits DNA testing if the technology was not available at the time of a defendant's trial, if the identity of the perpetrator was, or should have been, a significant issue in the case, or if DNA tests would raise a "reasonable probability" that the defendant would have been acquitted.
The Innocence Project's Maxwell said that, like the animal DNA tests, if the human hair samples do not include the root, the DNA tests "are going to be less discriminating." But such testing could conclusively eliminate a connection to Williams even though it could not provide a conclusive link, she said.
Comparative DNA testing on blood evidence, by contrast, could provide a "full DNA profile" that would link Williams more conclusively to the victims, Maxwell said.
While agreeing to the DNA tests, Howard has played down their significance, stressing, instead, that Williams' conviction "rests primarily" on hundreds of carpet fibers that linked the victims to Williams' home and automobiles he drove. So detailed was the fiber case that it has become a landmark in the annals of forensic fiber analysis and is still studied in college forensic science courses across the country.
Forensic fiber experts testified that hundreds of fibers found on 12 of the victims were identical to fibers found on carpeting in Williams' home and automobile. One rare carpet fiber was only made for a short time and matched a rug in Williams' bedroom.
Last year, the Daily Report asked two of the top forensic fiber experts in the country to review the fiber evidence that the jury saw as well as thousands of pages of testimony by forensic experts at Williams' trial. Those experts contacted by the newspaper concluded that, 25 years later, the fiber evidence against Williams remains compelling and credible.
Stephanie K. McCoy
Paralegal
Cohen Kennedy Dowd & Quigley
The Camelback Esplanade I
2425 East Camelback Road, Suite 1100
Phoenix, Arizona 85016
Ph: 602.252.8400
www.ckdqlaw.com
Fulton County Daily Report
06-26-2007
A defense lawyer for Wayne Williams, the man long identified as the serial killer in a string of 29 slayings that terrorized Atlanta from 1979 to 1981, said that DNA tests of dog hairs recovered from some of the victims are inconclusive.
On Monday, John R. "Jack" Martin -- attorney for Williams -- issued the statement after receiving a report containing the results of comparative DNA tests on hairs taken from Williams' German shepherd mix, Sheba, and dozens of suspected dog hairs recovered from 11 black men and boys whose slayings were attributed to Williams.
Those animal hairs, preserved for more than 25 years, played a key role in Williams' 1982 double-murder conviction.
DNA testing was not available for use in criminal investigations at the time of Williams' 1982 murder trial. Using less definitive testing, the state wove a web of forensic evidence that linked Williams to his victims through blood stains, human and dog hairs and hundreds of fibers from carpets, clothing and bed linens.
Martin said that the results of the DNA tests do not exclude Williams' dog as the source of dozens of hairs found on 11 of 12 victims whose slayings were introduced as evidence in Williams' 1982 trial. But, Martin said, given the nature of the DNA tested, "It cannot be concluded that the hairs came from Mr. Williams' dog. Thousands of dogs in the Atlanta area, including a number of different breeds, possess the type of DNA profile found. ... In sum, Mr. Williams' dog is neither specifically excluded nor included as the dog or dogs whose mitochondrial DNA profile matches the hairs found on some of the bodies."
On Monday, Aimee Maxwell, executive director of the Georgia Innocence Project, cautioned that DNA testing of animal hairs is still "in its infancy." She said DNA testing in animals is "not as discriminating" as human DNA tests because of the interbreeding common among dogs. In addition, if the dog hair evidence did not include the root of the hair, only less precise mitochondrial DNA testing could be done, she said.
Such testing would reveal only the DNA strand inherited from the mother, Maxwell said, not the strands inherited from both parents. "It would not lead to this actual, individual dog."
But, Maxwell added, if there is not even a partial DNA match, then
defense attorneys could safely argue that Williams' dog was not the
source of the hairs recovered from the victims. "That's an absolute
exclusion." If there is a partial match, Maxwell said the results will
likely not change the status of the case.
Williams was convicted of the murders of two men -- Nathaniel Cater, 28, and Jimmy Ray Payne, 21. But the jury found cause to believe that Williams had also killed 10 other victims, ages 11 to 28, though he was never charged with those deaths.
Following Williams' conviction, authorities closed the books on the murders of 24 black boys, teenagers and young men, known as the Atlanta child murders. Five more slayings and a disappearance were never resolved. Williams always has asserted his innocence in all the slayings.
Fulton County, Ga., District Attorney Paul L. Howard Jr. plans today to announce the results of the dog hair DNA tests, which were sent to him Friday following testing by the forensic veterinary laboratory at the University of California, Davis, the only private lab in the United States that does animal DNA testing. The report arrived at Howard's office a day after the 26th anniversary of Williams' arrest on June 21,
1981.
Howard is scheduled to hold a news conference at the Midtown studio WAOK-AM, the sister station of WVEE-FM, or V-103, where two years ago DeKalb County's chief law enforcement officer pronounced Williams an innocent man.
In a formal pleading in which he agreed to let the DNA testing go forward, Howard had called comparative DNA tests of dog hairs the "least significant of the trace evidence presented." At Williams' trial, forensic experts had testified that hairs from Williams' dog were a microscopic match to dog hairs recovered from 11 of the 12 victims who figured in Williams' trial.
In asking for the DNA tests, Williams' defense team, Martin and Lynn H. Whatley, had hoped to secure ammunition for Williams' lingering federal habeas corpus appeal as well as evidentiary fodder for an extraordinary motion for a new trial.
On Monday, Martin said defense attorneys are still waiting for "the more important results" of a DNA analysis of two human scalp hairs found on one of Williams' suspected victims. The FBI crime laboratory is doing comparative DNA testing of those scalp hairs with DNA samples that Williams provided voluntarily, Martin said. "These results are much more likely to be definitive. ... It is our hope that the human hair analysis can give us some definitive answers."
If the new DNA tests show no matches between evidence recovered from the slaying victims and Williams or his dog, Martin and Whatley have said they intend to file an extraordinary motion for a new trial. Williams' federal habeas appeal seeking his release from prison has been rejected, but Williams' has an appeal of the district judge's rulings pending before the 11th U.S. Circuit Court of Appeals.
In addition to DNA tests on the animal hairs, Fulton County Superior Court Judge Thelma Wyatt Cummings Moore last January also approved DNA tests to compare bloodstains found on the backseat of Williams' station wagon with blood from two of his suspected victims. Moore also authorized the DNA analysis of two human hairs recovered from an 11-year-old to determine whether the DNA matched that of Williams.
When Howard acquiesced last January to a defense petition for DNA tests of blood, animal hair and human hair preserved from the Williams trial, the district attorney was careful to note in his formal response to Williams' motion that no matter what the results of comparative DNA tests, they would not have changed the outcome of Williams' trial.
At Williams' trial, experts testified that two foreign scalp hairs recovered from the body of 11-year-old slaying victim Patrick Baltazar were a microscopic match to scalp hair taken from Williams. And they linked samples of human bloodstains recovered from Williams' car to two of Williams' suspected victims -- John Porter, 28, and William Barrett, 16. Experts testified that the stains from the car matched the blood types in combination with rare blood enzymes recovered from the victims' clothing.
Williams' attorneys petitioned for the DNA tests last year after the Daily Report located the 25-year-old evidence in a vault in the Fulton County Courthouse. The newspaper recruited experts to examine the forensic evidence in the Williams case in 2005 after then-DeKalb County Police Chief Louis Graham publicly asserted his belief in Williams' innocence on radio host Frank Ski's morning show on WVEE-FM. At the same time, Graham reopened six DeKalb homicides that had been linked to Williams, though he was never charged.
In a 2005 interview with the Daily Report, Graham dismissed the legitimacy of the carpet fiber evidence and expressed skepticism as to whether any forensic evidence still existed that could be tested for DNA.
The newspaper found during its yearlong investigation into the forensic case against Williams that DeKalb detectives never sought to locate or review the forensic evidence in the case. After Graham resigned under fire last year, his successor quietly closed the cases, saying detectives had turned up no new information.
Meanwhile, after locating the 25-year-old evidence in a vault at the Fulton courthouse, the Daily Report -- in conjunction with the Georgia Innocence Project -- filed a public records request with Fulton Superior Court Chief Judge Doris L. Downs seeking comparative DNA testing of the human and animal hair and blood evidence. Downs rejected that request, saying that state public records laws -- which permit a review of trial exhibits with the permission either of the trial judge or the chief judge -- did not cover independent forensic testing.
But Williams' defense lawyers accompanied the Daily Report, Maxwell and lawyers from the offices of the Fulton County district attorney and the Georgia attorney general to look at stored microscopic slides of hair and fiber that were preserved from Williams' trial.
Prosecutors subsequently located the rear seat of Williams' station wagon -- from which forensic investigators had extracted blood samples in 1981 in the evidence vault -- as well as the bloodstained clothes of two victims to which those samples had been favorably compared.
Martin said Monday that forensic analysts were unable to extract any blood samples from the car seat, and those used at trial are missing, so no DNA tests could be done.
A short time later, Williams' lawyers sought their own DNA tests under a state statute passed in 2003 that permits DNA testing if the technology was not available at the time of a defendant's trial, if the identity of the perpetrator was, or should have been, a significant issue in the case, or if DNA tests would raise a "reasonable probability" that the defendant would have been acquitted.
The Innocence Project's Maxwell said that, like the animal DNA tests, if the human hair samples do not include the root, the DNA tests "are going to be less discriminating." But such testing could conclusively eliminate a connection to Williams even though it could not provide a conclusive link, she said.
Comparative DNA testing on blood evidence, by contrast, could provide a "full DNA profile" that would link Williams more conclusively to the victims, Maxwell said.
While agreeing to the DNA tests, Howard has played down their significance, stressing, instead, that Williams' conviction "rests primarily" on hundreds of carpet fibers that linked the victims to Williams' home and automobiles he drove. So detailed was the fiber case that it has become a landmark in the annals of forensic fiber analysis and is still studied in college forensic science courses across the country.
Forensic fiber experts testified that hundreds of fibers found on 12 of the victims were identical to fibers found on carpeting in Williams' home and automobile. One rare carpet fiber was only made for a short time and matched a rug in Williams' bedroom.
Last year, the Daily Report asked two of the top forensic fiber experts in the country to review the fiber evidence that the jury saw as well as thousands of pages of testimony by forensic experts at Williams' trial. Those experts contacted by the newspaper concluded that, 25 years later, the fiber evidence against Williams remains compelling and credible.
Stephanie K. McCoy
Paralegal
Cohen Kennedy Dowd & Quigley
The Camelback Esplanade I
2425 East Camelback Road, Suite 1100
Phoenix, Arizona 85016
Ph: 602.252.8400
www.ckdqlaw.com
Friday, June 22, 2007
N.J. Justices Rule Death Penalty Barred if Single Juror Finds Defendant
Mary Pat Gallagher
New Jersey Law Journal
06-19-2007
A defendant can escape the death penalty if he convinces a single juror that he is mentally retarded, a divided New Jersey Supreme Court ruled on Monday.
The majority, in State v. Jimenez, A-75-2006, rejected prosecutors' arguments that the jury must be unanimous. The court held per curiam that mental retardation is analogous to a mitigating factor, which the U.S. and New Jersey supreme courts have held does not need to be decided unanimously.
"Because the finding of mental retardation is like a dispositive mitigating factor, we hold that if a single juror finds defendant has met his burden of proving mental retardation by a preponderance of the evidence, defendant is not eligible to receive a penalty of death,"wrote the majority, comprised of Chief Justice James Zazzali and Justices Jaynee LaVecchia, John Wallace and Roberto Rivera-Soto. Justice Helen Hoens did not participate.
The defense had asked the court to clarify its Oct. 24, 2006, ruling that a convicted defendant bears the burden of proving mental retardation to a jury by a preponderance of the evidence at a hearing held before the penalty phase. The earlier decision did not address the unanimity issue.
On Monday, in light of its finding that no unanimity is required, the majority altered its earlier view that retardation should be addressed in a separate proceeding, between the guilt and penalty phases. Instead, it should be decided during the penalty phase, the court said.
That would allow a defendant as many as three chances to present mental retardation issues: during the pretrial stage before a judge who can decide against a capital trial; during the guilt phase, to negate an element of the crime, such as intent; and during the penalty phase.
The court did not discuss whether the jury should be instructed on the impact of a non-unanimous verdict, as the prosecution requested.
It also did not address the position of the amicus curiae attorney general that unanimity should be required and if it is not achieved, a new trial should be held.
Two justices, Barry Albin and Virginia Long, dissented. They also dissented in October, saying the burden should be on the prosecutor, beyond a reasonable doubt.
On Monday, Albin, joined by Long, agreed with the majority on unanimity but reiterated that placing the burden of proof on the defendant contravened the U.S. Supreme Court precedents, Atkins v. Virginia, 536 U.S. 304 (2002), and Apprendi v. New Jersey, 530 U.S. 466 (2000).
Atkins held that, "in light of evolving standards of decency," the Eighth Amendment bars execution of the mentally retarded, while Apprendi said that, other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the statutory maximum must be decided by a jury beyond a reasonable doubt.
"It follows logically that only the fact of the absence of mental retardation permits the elevation of a sentence of life imprisonment to a death sentence," wrote Albin. "For that reason, I maintained that it was impermissible ... to shift the burden of proof to the defendant, as the majority has done."
Atkins left it up to the states to define who is mentally retarded and to devise procedures to prevent them from being executed.
In New Jersey, the Jimenez case has been the battlefield on which the issues have played out.
The first judge to grapple with applying Atkins was Salem Ahto of Morris County Superior Court in a March 2005 ruling in Jimenez.
Ahto favored a pretrial procedure that would have allowed a judge to decide against a capital trial if the defendant showed clear and convincing evidence of retardation. If there was a mere preponderance, the issue would go to the jury at the start of the penalty phase. If the judge found the defendant not retarded, the defendant would still be able argue the issue to the jury but solely as a mitigating factor to be weighed against aggravating factors.
An appeals court rejected Ahto's procedure in August 2005, saying it worked only where retardation was clear one way or the other, but not in close cases, where a defendant is at most mildly retarded, like Jimenez, whose IQ tests at 68 or 69, just below the cutoff of 70.
The Morris County prosecutor's office appealed, leading to last October's ruling by the court.
Assistant Deputy Public Defender Stephen Kirsch, who requested the clarification, says the latest ruling "puts us in a much better posture for litigating the issue than the original opinion did."
He is grateful the court did not agree with the attorney general that there should be a new trial if the jury cannot agree on retardation.
The new trial approach has "huge constitutional problems" because it weeds out pro-defense jurors, says Kirsch.
Assistant Morris County Prosecutor John McNamara Jr. was out of the office and could not be reached for comment.
David Wald, a spokesman for the attorney general, says "any party in a criminal action who bears the burden of proof has always had to prove the issue to the satisfaction of a unanimous jury."
"We don't think that's a burden at all," says Wald, of allowing a defendant to avoid the death penalty by convincing only one juror.
Jimenez is charged with the murder and sexual assault of 10-year-old Walter Contreras in 2001.
Though Jimenez has not yet been tried, this is the court's third opinion in the matter.
In 2003, the court refused to disqualify one of Jimenez's lawyers, Deputy Public Defender Dolores Mann. Prosecutors argued Mann had a conflict of interest because of her one-day representation in an unrelated matter of a man questioned as a potential suspect in the Contreras killing.
The decisions issued last October and Monday would be mooted if capital punishment were abolished, as recommended by a legislative commission in January.
Several pending bills would repeal the death penalty. The one that seems to have momentum is S-171, which was voted out of the Senate Judiciary Committee on May 10. It would substitute life without parole for the most egregious murders.
Stephanie K. McCoy
Paralegal
Cohen Kennedy Dowd & Quigley
The Camelback Esplanade I
2425 East Camelback Road, Suite 1100
Phoenix, Arizona 85016
Ph: 602.252.8400
www.ckdqlaw.com
New Jersey Law Journal
06-19-2007
A defendant can escape the death penalty if he convinces a single juror that he is mentally retarded, a divided New Jersey Supreme Court ruled on Monday.
The majority, in State v. Jimenez, A-75-2006, rejected prosecutors' arguments that the jury must be unanimous. The court held per curiam that mental retardation is analogous to a mitigating factor, which the U.S. and New Jersey supreme courts have held does not need to be decided unanimously.
"Because the finding of mental retardation is like a dispositive mitigating factor, we hold that if a single juror finds defendant has met his burden of proving mental retardation by a preponderance of the evidence, defendant is not eligible to receive a penalty of death,"wrote the majority, comprised of Chief Justice James Zazzali and Justices Jaynee LaVecchia, John Wallace and Roberto Rivera-Soto. Justice Helen Hoens did not participate.
The defense had asked the court to clarify its Oct. 24, 2006, ruling that a convicted defendant bears the burden of proving mental retardation to a jury by a preponderance of the evidence at a hearing held before the penalty phase. The earlier decision did not address the unanimity issue.
On Monday, in light of its finding that no unanimity is required, the majority altered its earlier view that retardation should be addressed in a separate proceeding, between the guilt and penalty phases. Instead, it should be decided during the penalty phase, the court said.
That would allow a defendant as many as three chances to present mental retardation issues: during the pretrial stage before a judge who can decide against a capital trial; during the guilt phase, to negate an element of the crime, such as intent; and during the penalty phase.
The court did not discuss whether the jury should be instructed on the impact of a non-unanimous verdict, as the prosecution requested.
It also did not address the position of the amicus curiae attorney general that unanimity should be required and if it is not achieved, a new trial should be held.
Two justices, Barry Albin and Virginia Long, dissented. They also dissented in October, saying the burden should be on the prosecutor, beyond a reasonable doubt.
On Monday, Albin, joined by Long, agreed with the majority on unanimity but reiterated that placing the burden of proof on the defendant contravened the U.S. Supreme Court precedents, Atkins v. Virginia, 536 U.S. 304 (2002), and Apprendi v. New Jersey, 530 U.S. 466 (2000).
Atkins held that, "in light of evolving standards of decency," the Eighth Amendment bars execution of the mentally retarded, while Apprendi said that, other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the statutory maximum must be decided by a jury beyond a reasonable doubt.
"It follows logically that only the fact of the absence of mental retardation permits the elevation of a sentence of life imprisonment to a death sentence," wrote Albin. "For that reason, I maintained that it was impermissible ... to shift the burden of proof to the defendant, as the majority has done."
Atkins left it up to the states to define who is mentally retarded and to devise procedures to prevent them from being executed.
In New Jersey, the Jimenez case has been the battlefield on which the issues have played out.
The first judge to grapple with applying Atkins was Salem Ahto of Morris County Superior Court in a March 2005 ruling in Jimenez.
Ahto favored a pretrial procedure that would have allowed a judge to decide against a capital trial if the defendant showed clear and convincing evidence of retardation. If there was a mere preponderance, the issue would go to the jury at the start of the penalty phase. If the judge found the defendant not retarded, the defendant would still be able argue the issue to the jury but solely as a mitigating factor to be weighed against aggravating factors.
An appeals court rejected Ahto's procedure in August 2005, saying it worked only where retardation was clear one way or the other, but not in close cases, where a defendant is at most mildly retarded, like Jimenez, whose IQ tests at 68 or 69, just below the cutoff of 70.
The Morris County prosecutor's office appealed, leading to last October's ruling by the court.
Assistant Deputy Public Defender Stephen Kirsch, who requested the clarification, says the latest ruling "puts us in a much better posture for litigating the issue than the original opinion did."
He is grateful the court did not agree with the attorney general that there should be a new trial if the jury cannot agree on retardation.
The new trial approach has "huge constitutional problems" because it weeds out pro-defense jurors, says Kirsch.
Assistant Morris County Prosecutor John McNamara Jr. was out of the office and could not be reached for comment.
David Wald, a spokesman for the attorney general, says "any party in a criminal action who bears the burden of proof has always had to prove the issue to the satisfaction of a unanimous jury."
"We don't think that's a burden at all," says Wald, of allowing a defendant to avoid the death penalty by convincing only one juror.
Jimenez is charged with the murder and sexual assault of 10-year-old Walter Contreras in 2001.
Though Jimenez has not yet been tried, this is the court's third opinion in the matter.
In 2003, the court refused to disqualify one of Jimenez's lawyers, Deputy Public Defender Dolores Mann. Prosecutors argued Mann had a conflict of interest because of her one-day representation in an unrelated matter of a man questioned as a potential suspect in the Contreras killing.
The decisions issued last October and Monday would be mooted if capital punishment were abolished, as recommended by a legislative commission in January.
Several pending bills would repeal the death penalty. The one that seems to have momentum is S-171, which was voted out of the Senate Judiciary Committee on May 10. It would substitute life without parole for the most egregious murders.
Stephanie K. McCoy
Paralegal
Cohen Kennedy Dowd & Quigley
The Camelback Esplanade I
2425 East Camelback Road, Suite 1100
Phoenix, Arizona 85016
Ph: 602.252.8400
www.ckdqlaw.com
Thursday, June 14, 2007
Contrasting Cases Show Murkiness of Sex Law
Alyson M. Palmer
Fulton County Daily Report
06-14-2007
Mercer University law professor Sarah Gerwig-Moore represents a young man few know but whose plight will sound very familiar.
Like Genarlow Wilson, whose highly publicized case this week reached a new level of drama, Joshua Widner was sentenced to 10 years in prison for a sexual encounter with a fellow teenager that his lawyers say today would be considered a misdemeanor. In both cases, courts have found that neither girl was forced to give oral sex.
But while a Monroe County judge Monday tossed Wilson's sentence as "a grave miscarriage of justice," the state Supreme Court last year said Widner's sentence "does not unconstitutionally shock the conscience."
Gerwig-Moore said in an e-mail that she's rooting for Wilson, for his sake and that of her client.
But she called the Widner ruling of the high court -- called upon to hear Attorney General Thurbert E. Baker's appeal of Wilson's case -- "a big hurdle for Genarlow."
"The opinion in Josh's case shows that the [Georgia Supreme Court] just doesn't have the outrage over this situation that the legal community and so many from across the country have shown," Gerwig-Moore added.
Plenty of others are outraged. Civil rights leaders this week demanded Baker drop his appeal of Wilson's ruling -- or resign. Wilson's case fit easily into the format of media debates on criminal law, and "Primetime Live," "Good Morning America" and the "O'Reilly Factor" have featured it.
But the difference in the rulings in Widner's and Wilson's cases suggest there may not be an easy legal fix to these matters. That's a challenge not only for their lawyers but also for Baker, who is caught between public pressure on one side and his prosecutorial obligations on the other.
WILSON'S QUEST FOR RELIEF
Wilson's case began with a New Year's Eve party in a motel room in December 2003, when Wilson was 17. A jury acquitted Wilson of charges that he raped a 17-year-old girl but convicted him of aggravated child molestation based on what a judge has called apparently "voluntary" oral sex performed on him by a 15-year-old girl.
On direct appeal, Wilson's lawyers went first to the state Supreme Court, which transferred the case to the Court of Appeals. In April 2006, a panel of that court rejected arguments both that Wilson's prior counsel was ineffective for failing to make an equal protection argument and that a 1995 state law classifying statutory rape as a misdemeanor if both parties were teenagers within a specified age range meant Wilson could not be punished more harshly.
Wilson tried to get the state Supreme Court's attention again, but the court declined to take the case over the dissents of Chief Justice Leah Ward Sears and Justices Robert Benham and Harold D. Melton. When the court denied a motion for reconsideration filed by Wilson, Presiding Justice Carol W. Hunstein wrote a concurrence saying the court couldn't help him because the Legislature had refused to make retroactive the new law changing Wilson's conduct to a misdemeanor.
Taking the hint, Wilson's lawyer B.J. Bernstein turned to the law-making process, where state Democratic Sen. Emanuel Jones sponsored a bill aimed at making it easier for people in Wilson's situation to go back to the judge who sentenced them to get resentenced under the new law. When that bill didn't go anywhere, Bernstein's team turned to a state habeas petition, resulting in Monday's order by Monroe Superior Court Chief Judge Thomas H. Wilson, no relation to Genarlow.
The judge voided the 10-year sentence because of the law that would have made his acts a misdemeanor, saying the sentence was unconstitutionally cruel and unusual punishment. Under the new law, a person 18 years of age or younger convicted of aggravated child molestation based on an act of sodomy will be guilty of a misdemeanor as long as the victim is at least 13, less than 16 and not more than four years younger than the defendant. He then modified Wilson's sentence to a misdemeanor, giving him a year's prison time with credit for time served, and held that he was not required to register as a sex offender.
WIDNER PLANS FEDERAL CASE
Meanwhile, Widner's lawyers have been trying to get their client out of jail as well. Widner had been convicted of felony child molestation and statutory rape. According to the Supreme Court's decision in his case, those convictions stemmed from events in December 2002 when, then 18, Widner convinced a 14-year-old girl "to agree to have sex with him and another male friend at the same time."
On June 26, 2006, Melton wrote for a unanimous court rejecting Widner's appeal on the child molestation sentence. Melton acknowledged the imminent change in the child molestation statute. But Melton wrote that because the law wasn't in effect when Widner was sentenced, it couldn't apply.
The court also rejected Widner's cruel and unusual punishment argument, saying Widner was simply asking for "special treatment." "[B]ecause the required punishment does not unconstitutionally shock the conscience, Widner's sentence must stand." The decision was Widner v. State, 280 Ga. 675.
Mercer professor Gerwig-Moore picked up Widner's case after the high court ruling.
She tried to return to the original sentencing judge for a sentence modification, but that didn't work. Now she has plans to raise her cruel and unusual punishment argument in a habeas petition filed in federal court.
Gerwig-Moore said in light of newspaper editorials and other reaction to the Wilson case, the Supreme Court's finding that her client's sentence didn't shock the conscience was "a pretty hollow analysis."
Plus, she said, if Wilson is successful, she might be able to also file a state habeas petition on a secondary argument embedded in the decision by the Monroe County judge -- that Wilson's sentence was a "miscarriage of justice" within the meaning of the state's habeas statute.
REASON FOR HABEAS
Curiously, the state's lawyers who responded to Wilson's habeas petition never mentioned the Widner case, according to Bernstein, Wilson's lawyer.
She said from reading the court's opinion in the Widner case, it appears that Widner did not argue the case the same way that she has on behalf of Wilson.
She's relied on death penalty decisions by the Georgia Supreme Court not cited by the opinion in the Widner case. That makes a difference, she said.
"I'm solid on the law," she said.
J. Scott Key, a Stockbridge lawyer who represented Widner on his appeal to the Supreme Court of Georgia, said he agrees with what the Monroe County habeas judge did and hopes the ruling stands up on appeal. But he said he's a little worried.
Key noted there's a wider age disparity between the teens involved in Widner's case and that of Wilson. But, he said, "our reasoning on appeal in Widner was the exact same reasoning used by the trial court in granting the habeas" in Wilson's case.
"I hope that they have better luck," said Key.
PUSHING THE APPEAL
Another issue that may come up if the appeal reaches the state Supreme Court is the remedy used by the Monroe County judge in granting the habeas. When Baker announced he was appealing, his statement said habeas judges don't have authority to reduce or modify the judgment of the trial court. But an expert on Georgia habeas law said that's wrong.
Generally speaking, said Donald E. Wilkes Jr., a law professor at the University of Georgia who's written several books on habeas, when a habeas judge finds that a sentence is unconstitutional or illegal, the judge sends the case back to the county where the habeas petitioner was convicted so the original judge can re-sentence the defendant. "However, I do think the court had the authority to do this," he said.
"To begin with, the traditional rule is that when habeas judges grant relief they have very broad, flexible powers to grant whatever the relief is for the person, and on top of that, the Georgia habeas corpus statute gives the habeas judge extremely broad power to fashion a form of relief." In Wilson's case, said Wilkes, "presumably he couldn't get a sentence of more than 12 months anyway, and he's already been in prison for two years."
So Wilkes wonders why Baker is pushing his appeal in the case. One possibility is that other people currently forced to register as sex offenders might use the habeas decision as precedent.
Citing the situations of some of the Southern Center for Human Rights' clients in its federal court challenge to restrictions on people required to register as sex offenders, SCHR public policy director Sara J. Totonchi said that might happen. "If he gets to have this categorized as a misdemeanor and not be subject to the restrictions of the sex offender registry, then these women and others also should be relieved of this obligation," said Totonchi.
She said she doesn't have a clear sense of how many people on the sex offender registry might be considered low-level offenders. But she acknowledged that some might hire lawyers and use the Wilson case as precedent to try to get removed from the registry.
Bernstein said a trial court's habeas decision isn't precedent in the same way that an appellate decision is.
But is a possible opening of the habeas floodgates a reason for Baker to appeal the decision in Wilson's favor? "That's what you do in litigation, is you appeal decisions," said Totonchi. "But I would leave that to him to comment on."
Baker did not agree to an interview for this story. But the case seems to put him in the hot seat, with civil rights lawyers holding a protest outside his office.
J. David McDade, the Douglas County district attorney who prosecuted Wilson, said Baker had no choice but to appeal. "I think the order purports to grant relief in so many different ways that I think the attorney general would have been derelict had he not appealed it," said McDade.
Henry County District Attorney Tommy Floyd, who prosecuted Widner, agreed that Baker wouldn't be doing his constitutional duty if he failed to defend a conviction unless there were some legal "imperfection" with it. "That's a legal judgment that you make," said Floyd. "Here it seems to me ... there is some recent precedent on this very same issue, and I can't see how the attorney general can make any other legal decision."
Wilkes called that argument "a smoke screen."
Prosecutors, including Baker, have an enormous amount of discretion, said Wilkes. "Even if he thinks it's wrong, and even if he thinks it's appealable, he still has the discretion not to do this."
Stephanie K. McCoy
Paralegal
Cohen Kennedy Dowd & Quigley
The Camelback Esplanade I
2425 East Camelback Road, Suite 1100
Phoenix, Arizona 85016
Ph: 602.252.8400
www.ckdqlaw.com
Fulton County Daily Report
06-14-2007
Mercer University law professor Sarah Gerwig-Moore represents a young man few know but whose plight will sound very familiar.
Like Genarlow Wilson, whose highly publicized case this week reached a new level of drama, Joshua Widner was sentenced to 10 years in prison for a sexual encounter with a fellow teenager that his lawyers say today would be considered a misdemeanor. In both cases, courts have found that neither girl was forced to give oral sex.
But while a Monroe County judge Monday tossed Wilson's sentence as "a grave miscarriage of justice," the state Supreme Court last year said Widner's sentence "does not unconstitutionally shock the conscience."
Gerwig-Moore said in an e-mail that she's rooting for Wilson, for his sake and that of her client.
But she called the Widner ruling of the high court -- called upon to hear Attorney General Thurbert E. Baker's appeal of Wilson's case -- "a big hurdle for Genarlow."
"The opinion in Josh's case shows that the [Georgia Supreme Court] just doesn't have the outrage over this situation that the legal community and so many from across the country have shown," Gerwig-Moore added.
Plenty of others are outraged. Civil rights leaders this week demanded Baker drop his appeal of Wilson's ruling -- or resign. Wilson's case fit easily into the format of media debates on criminal law, and "Primetime Live," "Good Morning America" and the "O'Reilly Factor" have featured it.
But the difference in the rulings in Widner's and Wilson's cases suggest there may not be an easy legal fix to these matters. That's a challenge not only for their lawyers but also for Baker, who is caught between public pressure on one side and his prosecutorial obligations on the other.
WILSON'S QUEST FOR RELIEF
Wilson's case began with a New Year's Eve party in a motel room in December 2003, when Wilson was 17. A jury acquitted Wilson of charges that he raped a 17-year-old girl but convicted him of aggravated child molestation based on what a judge has called apparently "voluntary" oral sex performed on him by a 15-year-old girl.
On direct appeal, Wilson's lawyers went first to the state Supreme Court, which transferred the case to the Court of Appeals. In April 2006, a panel of that court rejected arguments both that Wilson's prior counsel was ineffective for failing to make an equal protection argument and that a 1995 state law classifying statutory rape as a misdemeanor if both parties were teenagers within a specified age range meant Wilson could not be punished more harshly.
Wilson tried to get the state Supreme Court's attention again, but the court declined to take the case over the dissents of Chief Justice Leah Ward Sears and Justices Robert Benham and Harold D. Melton. When the court denied a motion for reconsideration filed by Wilson, Presiding Justice Carol W. Hunstein wrote a concurrence saying the court couldn't help him because the Legislature had refused to make retroactive the new law changing Wilson's conduct to a misdemeanor.
Taking the hint, Wilson's lawyer B.J. Bernstein turned to the law-making process, where state Democratic Sen. Emanuel Jones sponsored a bill aimed at making it easier for people in Wilson's situation to go back to the judge who sentenced them to get resentenced under the new law. When that bill didn't go anywhere, Bernstein's team turned to a state habeas petition, resulting in Monday's order by Monroe Superior Court Chief Judge Thomas H. Wilson, no relation to Genarlow.
The judge voided the 10-year sentence because of the law that would have made his acts a misdemeanor, saying the sentence was unconstitutionally cruel and unusual punishment. Under the new law, a person 18 years of age or younger convicted of aggravated child molestation based on an act of sodomy will be guilty of a misdemeanor as long as the victim is at least 13, less than 16 and not more than four years younger than the defendant. He then modified Wilson's sentence to a misdemeanor, giving him a year's prison time with credit for time served, and held that he was not required to register as a sex offender.
WIDNER PLANS FEDERAL CASE
Meanwhile, Widner's lawyers have been trying to get their client out of jail as well. Widner had been convicted of felony child molestation and statutory rape. According to the Supreme Court's decision in his case, those convictions stemmed from events in December 2002 when, then 18, Widner convinced a 14-year-old girl "to agree to have sex with him and another male friend at the same time."
On June 26, 2006, Melton wrote for a unanimous court rejecting Widner's appeal on the child molestation sentence. Melton acknowledged the imminent change in the child molestation statute. But Melton wrote that because the law wasn't in effect when Widner was sentenced, it couldn't apply.
The court also rejected Widner's cruel and unusual punishment argument, saying Widner was simply asking for "special treatment." "[B]ecause the required punishment does not unconstitutionally shock the conscience, Widner's sentence must stand." The decision was Widner v. State, 280 Ga. 675.
Mercer professor Gerwig-Moore picked up Widner's case after the high court ruling.
She tried to return to the original sentencing judge for a sentence modification, but that didn't work. Now she has plans to raise her cruel and unusual punishment argument in a habeas petition filed in federal court.
Gerwig-Moore said in light of newspaper editorials and other reaction to the Wilson case, the Supreme Court's finding that her client's sentence didn't shock the conscience was "a pretty hollow analysis."
Plus, she said, if Wilson is successful, she might be able to also file a state habeas petition on a secondary argument embedded in the decision by the Monroe County judge -- that Wilson's sentence was a "miscarriage of justice" within the meaning of the state's habeas statute.
REASON FOR HABEAS
Curiously, the state's lawyers who responded to Wilson's habeas petition never mentioned the Widner case, according to Bernstein, Wilson's lawyer.
She said from reading the court's opinion in the Widner case, it appears that Widner did not argue the case the same way that she has on behalf of Wilson.
She's relied on death penalty decisions by the Georgia Supreme Court not cited by the opinion in the Widner case. That makes a difference, she said.
"I'm solid on the law," she said.
J. Scott Key, a Stockbridge lawyer who represented Widner on his appeal to the Supreme Court of Georgia, said he agrees with what the Monroe County habeas judge did and hopes the ruling stands up on appeal. But he said he's a little worried.
Key noted there's a wider age disparity between the teens involved in Widner's case and that of Wilson. But, he said, "our reasoning on appeal in Widner was the exact same reasoning used by the trial court in granting the habeas" in Wilson's case.
"I hope that they have better luck," said Key.
PUSHING THE APPEAL
Another issue that may come up if the appeal reaches the state Supreme Court is the remedy used by the Monroe County judge in granting the habeas. When Baker announced he was appealing, his statement said habeas judges don't have authority to reduce or modify the judgment of the trial court. But an expert on Georgia habeas law said that's wrong.
Generally speaking, said Donald E. Wilkes Jr., a law professor at the University of Georgia who's written several books on habeas, when a habeas judge finds that a sentence is unconstitutional or illegal, the judge sends the case back to the county where the habeas petitioner was convicted so the original judge can re-sentence the defendant. "However, I do think the court had the authority to do this," he said.
"To begin with, the traditional rule is that when habeas judges grant relief they have very broad, flexible powers to grant whatever the relief is for the person, and on top of that, the Georgia habeas corpus statute gives the habeas judge extremely broad power to fashion a form of relief." In Wilson's case, said Wilkes, "presumably he couldn't get a sentence of more than 12 months anyway, and he's already been in prison for two years."
So Wilkes wonders why Baker is pushing his appeal in the case. One possibility is that other people currently forced to register as sex offenders might use the habeas decision as precedent.
Citing the situations of some of the Southern Center for Human Rights' clients in its federal court challenge to restrictions on people required to register as sex offenders, SCHR public policy director Sara J. Totonchi said that might happen. "If he gets to have this categorized as a misdemeanor and not be subject to the restrictions of the sex offender registry, then these women and others also should be relieved of this obligation," said Totonchi.
She said she doesn't have a clear sense of how many people on the sex offender registry might be considered low-level offenders. But she acknowledged that some might hire lawyers and use the Wilson case as precedent to try to get removed from the registry.
Bernstein said a trial court's habeas decision isn't precedent in the same way that an appellate decision is.
But is a possible opening of the habeas floodgates a reason for Baker to appeal the decision in Wilson's favor? "That's what you do in litigation, is you appeal decisions," said Totonchi. "But I would leave that to him to comment on."
Baker did not agree to an interview for this story. But the case seems to put him in the hot seat, with civil rights lawyers holding a protest outside his office.
J. David McDade, the Douglas County district attorney who prosecuted Wilson, said Baker had no choice but to appeal. "I think the order purports to grant relief in so many different ways that I think the attorney general would have been derelict had he not appealed it," said McDade.
Henry County District Attorney Tommy Floyd, who prosecuted Widner, agreed that Baker wouldn't be doing his constitutional duty if he failed to defend a conviction unless there were some legal "imperfection" with it. "That's a legal judgment that you make," said Floyd. "Here it seems to me ... there is some recent precedent on this very same issue, and I can't see how the attorney general can make any other legal decision."
Wilkes called that argument "a smoke screen."
Prosecutors, including Baker, have an enormous amount of discretion, said Wilkes. "Even if he thinks it's wrong, and even if he thinks it's appealable, he still has the discretion not to do this."
Stephanie K. McCoy
Paralegal
Cohen Kennedy Dowd & Quigley
The Camelback Esplanade I
2425 East Camelback Road, Suite 1100
Phoenix, Arizona 85016
Ph: 602.252.8400
www.ckdqlaw.com
Thursday, June 07, 2007
Top 10 Examples of Workplace Wackiness
By Gerald Skoning
The National Law Journal
06-07-2007
Despite the prolonged national agony over the war in Iraq, there was reason to smile in 2006. This year's survey of the top 10 bizarre employment law situations presents another potpourri of workplace wackiness.
10. Workplace hustler
The California Superior Court in Los Angeles has certified an arbitrator's decision that Hustler magazine publisher Larry Flynt must pay $1.1 million to a former secretary who alleged that having to comply with Flynt's trysts with prostitutes in his private office created a hostile work environment. Elizabeth Rene Raymond alleged that she had to participate in an "early warning system" when Flynt's wife was approaching the executive offices during one of these trysts. It seems that Flynt didn't understand that what is portrayed in his magazines isn't quite appropriate office behavior.
9. Discharge-of-the-year award
Two employees of a Boise, Idaho, ice skating rink were fired for making a midnight fast-food run with two Zambonis. An anonymous tipster reported seeing the two big ice-surfacing machines chug through a Burger King drive-through and return to the rink at about 12:30 a.m. The squat vehicles, which have a top speed of about 5 miles an hour, drove 1.5 miles in all. To date, the two have not challenged their discharge in court. A few experienced lawyers say that, if they do, they'll be skating on thin ice.
8. Family-leave hoax
A newly hired salesman did no work for months, after telling bosses his 3-year-old son had cancer. He was revealed to be a liar when his employer tried to send flowers to the family, after being told the boy had died. That was the allegation in a suit filed last year by Lancope Inc., a software firm against Michael Ruffalo, who launched his tales of hardship right after he took a job and was given paid leave for several months. Lancope was awarded $52,517 in damages this year.
7. No claim over jealous wife
The 8th U.S. Circuit Court of Appeals has ruled that an employee who admittedly engaged in physical, suggestive contact with the owner of the company for which she worked has no sex discrimination claim against him or the company, nor a tort claim against his wife, who insisted she be fired. The court reasoned that the plaintiff, Maelynn Tenge, was not fired by Scott Phillips, owners of Phillips Modern Ag Co., because of her sex, but rather because of his "desire to allay his wife's concerns over Tenge's admitted sexual behavior with him." The court concluded that "Title VII is not implicated because any benefits of the relationship are due to the sexual conduct, rather than the gender, of the employee."
6. An explosive arbitration award
The U.S. District Court for the Eastern District of New York has ruled that an arbitration panel did not err in ordering the reinstatement of a warehouse employee, with a history of violent behavior and felony indictments, to his job, which involved handling highly explosive chemicals. According to the court, Anthony Bennett was repeatedly disciplined for misconduct at work. His co-workers were afraid of him, citing erratic behavior, including beating a woman and on another occasion bringing a 9-millimeter gun to work. Amazingly, the court ruled that enforcement of the arbitration award did not violate public policy.
5. Dubious 'team building'
A California jury has awarded $1.7 million to a female sales employee on her claim for sexual harassment against her former employer, Alarm One Inc. Janet Orlando alleged that she was spanked on three occasions in what the company called a "camaraderie-building exercise." She claimed that being spanked in front of her colleagues, many of them young men who taunted her and made lewd remarks, was so humiliating she was compelled to quit.
4. Sex, drugs and religion
The 8th Circuit has rejected sexual and religious harassment, retaliation and other claims by a Yellow Book U.S.A. employee who alleged that her female co-worker propositioned her for sex, spiked her drink with methamphetamine and, after a religious conversion, tried to proselytize her. The court reasoned that the company had taken prompt and effective remedial measures in response to Tammy Powell's complaints about co-worker Victoria Kreutz's proselytizing, that the sexual harassment was not severe or pervasive and that Powell provided no evidence of the drink-spiking.
3. Profitable panic attack
A California superior court jury has awarded $6.5 million to a health care case worker who claimed he was denied a promotion because a panic disorder prevented him from meeting clients. George Alberigi was diagnosed in 1986 with panic disorder and agoraphobia. For most of his 14 years with the county's Human Services Department, he was allowed to interview clients by phone, but a promotion he applied for required meeting clients in person. He was denied the promotion and eventually went on permanent medical disability. His award included $1.5 million in lost wages and $5 million for pain and suffering.
2. Shoot self in foot, then sue
A Drug Enforcement Administration agent who accidentally shot himself in the foot while demonstrating gun safety to school children is suing the agency, saying that a video of the incident has made him the laughing stock of the Internet. Moments before the shooting, Lee Paige, a 14-year agency veteran, told the students he was the only one in the room professional enough to handle a gun. His suit alleges that the agency leaked the video to the public and that he has become the "target of jokes, derision, ridicule and disparaging comments."
1. Peeping and poison ivy
The 8th Circuit has ruled that a supervisor who spied through a peephole into a women's restroom for years and placed a substance apparently containing poison ivy on the toilet seat did not create hostile environment liability for the employer. Jill Cottrill and a co-worker sued their employer, MFA Inc., based on these activities of which they were, at the time, unaware. The court ruled that an employee "may only rely on evidence relating to harassment of which she was aware during the time she was allegedly subjected to a hostile work environment."
Gerald Skoning is a senior partner at Chicago's Seyfarth Shaw.
Stephanie K. McCoy
Paralegal
Cohen Kennedy Dowd & Quigley
The Camelback Esplanade I
2425 East Camelback Road, Suite 1100
Phoenix, Arizona 85016
Ph: 602.252.8400
www.ckdqlaw.com
The National Law Journal
06-07-2007
Despite the prolonged national agony over the war in Iraq, there was reason to smile in 2006. This year's survey of the top 10 bizarre employment law situations presents another potpourri of workplace wackiness.
10. Workplace hustler
The California Superior Court in Los Angeles has certified an arbitrator's decision that Hustler magazine publisher Larry Flynt must pay $1.1 million to a former secretary who alleged that having to comply with Flynt's trysts with prostitutes in his private office created a hostile work environment. Elizabeth Rene Raymond alleged that she had to participate in an "early warning system" when Flynt's wife was approaching the executive offices during one of these trysts. It seems that Flynt didn't understand that what is portrayed in his magazines isn't quite appropriate office behavior.
9. Discharge-of-the-year award
Two employees of a Boise, Idaho, ice skating rink were fired for making a midnight fast-food run with two Zambonis. An anonymous tipster reported seeing the two big ice-surfacing machines chug through a Burger King drive-through and return to the rink at about 12:30 a.m. The squat vehicles, which have a top speed of about 5 miles an hour, drove 1.5 miles in all. To date, the two have not challenged their discharge in court. A few experienced lawyers say that, if they do, they'll be skating on thin ice.
8. Family-leave hoax
A newly hired salesman did no work for months, after telling bosses his 3-year-old son had cancer. He was revealed to be a liar when his employer tried to send flowers to the family, after being told the boy had died. That was the allegation in a suit filed last year by Lancope Inc., a software firm against Michael Ruffalo, who launched his tales of hardship right after he took a job and was given paid leave for several months. Lancope was awarded $52,517 in damages this year.
7. No claim over jealous wife
The 8th U.S. Circuit Court of Appeals has ruled that an employee who admittedly engaged in physical, suggestive contact with the owner of the company for which she worked has no sex discrimination claim against him or the company, nor a tort claim against his wife, who insisted she be fired. The court reasoned that the plaintiff, Maelynn Tenge, was not fired by Scott Phillips, owners of Phillips Modern Ag Co., because of her sex, but rather because of his "desire to allay his wife's concerns over Tenge's admitted sexual behavior with him." The court concluded that "Title VII is not implicated because any benefits of the relationship are due to the sexual conduct, rather than the gender, of the employee."
6. An explosive arbitration award
The U.S. District Court for the Eastern District of New York has ruled that an arbitration panel did not err in ordering the reinstatement of a warehouse employee, with a history of violent behavior and felony indictments, to his job, which involved handling highly explosive chemicals. According to the court, Anthony Bennett was repeatedly disciplined for misconduct at work. His co-workers were afraid of him, citing erratic behavior, including beating a woman and on another occasion bringing a 9-millimeter gun to work. Amazingly, the court ruled that enforcement of the arbitration award did not violate public policy.
5. Dubious 'team building'
A California jury has awarded $1.7 million to a female sales employee on her claim for sexual harassment against her former employer, Alarm One Inc. Janet Orlando alleged that she was spanked on three occasions in what the company called a "camaraderie-building exercise." She claimed that being spanked in front of her colleagues, many of them young men who taunted her and made lewd remarks, was so humiliating she was compelled to quit.
4. Sex, drugs and religion
The 8th Circuit has rejected sexual and religious harassment, retaliation and other claims by a Yellow Book U.S.A. employee who alleged that her female co-worker propositioned her for sex, spiked her drink with methamphetamine and, after a religious conversion, tried to proselytize her. The court reasoned that the company had taken prompt and effective remedial measures in response to Tammy Powell's complaints about co-worker Victoria Kreutz's proselytizing, that the sexual harassment was not severe or pervasive and that Powell provided no evidence of the drink-spiking.
3. Profitable panic attack
A California superior court jury has awarded $6.5 million to a health care case worker who claimed he was denied a promotion because a panic disorder prevented him from meeting clients. George Alberigi was diagnosed in 1986 with panic disorder and agoraphobia. For most of his 14 years with the county's Human Services Department, he was allowed to interview clients by phone, but a promotion he applied for required meeting clients in person. He was denied the promotion and eventually went on permanent medical disability. His award included $1.5 million in lost wages and $5 million for pain and suffering.
2. Shoot self in foot, then sue
A Drug Enforcement Administration agent who accidentally shot himself in the foot while demonstrating gun safety to school children is suing the agency, saying that a video of the incident has made him the laughing stock of the Internet. Moments before the shooting, Lee Paige, a 14-year agency veteran, told the students he was the only one in the room professional enough to handle a gun. His suit alleges that the agency leaked the video to the public and that he has become the "target of jokes, derision, ridicule and disparaging comments."
1. Peeping and poison ivy
The 8th Circuit has ruled that a supervisor who spied through a peephole into a women's restroom for years and placed a substance apparently containing poison ivy on the toilet seat did not create hostile environment liability for the employer. Jill Cottrill and a co-worker sued their employer, MFA Inc., based on these activities of which they were, at the time, unaware. The court ruled that an employee "may only rely on evidence relating to harassment of which she was aware during the time she was allegedly subjected to a hostile work environment."
Gerald Skoning is a senior partner at Chicago's Seyfarth Shaw.
Stephanie K. McCoy
Paralegal
Cohen Kennedy Dowd & Quigley
The Camelback Esplanade I
2425 East Camelback Road, Suite 1100
Phoenix, Arizona 85016
Ph: 602.252.8400
www.ckdqlaw.com
Missing Madeleine
Here is the latest article on this website. For the official website go to www.bringmadeleinehome.com To see how they are asking for money and for previous blog entries by Gerry.
Latest Update - Gerry's Blog/Diary
06th June 2007
Day 34
Today seemed to go very well with huge interest in our search for Madeleine. There has also been a little bit of criticism in the German press about the amount of media coverage but this did not seem to diminish the level of interest. The German interviewers are a little more direct with their questions but I was still surprised by the question as to whether Kate and I may be involved in Madeleine?s abduction! Hopefully our answers removed any doubt on that score and that our sole focus in all of the family campaigning is to get Madeleine back.
After the media we met with a couple of politicians in private. Firstly, we saw the deputy justice minister for Germany who gave us reassurances regarding the investigation. Following this we met the Mayor of Berlin who is a very powerful and charismatic politician. He asked us what he could do for us and following this meeting asked German tourists who were in the Algarve around the time of Madeleine?s abduction to come forward. He is very popular and such public backing should help our appeal.
We had to delay our onward flight to Amsterdam because of some information received by the police, which we needed to be consulted on. We diverted to the embassy in Berlin but it turned out to be nothing of interest. We unfortunately had to miss 2 TV programmes as we arrived in Amsterdam 3 hours late, very tired and emotionally drained. We did manage to catch up with a few friends briefly who we know from the year we lived in Amsterdam. They have been actively campaigning here on our behalf with poster distribution, contacting media and liasing with companies to get advertising space for large posters of Madeleine.
Keep up to date with Gerry
View previous entries also
Day to day life for the McCann's
Usually there’s some free time then for a few stories or games with the twins before heading out.
9.00-9.15 We take Sean and Amelie to Kids’ Club. They really enjoy it and run in. They know the staff well and the staff are all excellent. Both love the domestic corner and Amelie particularly likes to look after ‘babies’. We use the kids club a bit like nursery at home but we think Sean and Amelie still think they are on holiday!
9.30~12.15. We return to the apartments, usually for a series of meetings with our press officer, Mark Warner Reps, occasionally Consulate staff, lawyers and British Liaison officers. During this time we catch up with family and close friends, usually by telephone and discuss ideas how to keep Madeleine’s profile high especially throughout continental Europe.
12.30 Time to pick up Sean and Amelie from Kids’ club then head back to apartment for lunch, which has usually been prepared by one of our family/friends group who have been tremendously supportive.
13.30 –14.30 This is time to spend time playing with the twins either in the apartment or in the play area next to kids club.
14.30-15.00 Usually we take the twins back to Kids’ Club although Sean has had the odd afternoon in the apartment as it’s a bit cooler and he’s not much of a sun worshipper! They have been taking part in many different activities including painting, singing, stories, swimming, trips to the beach and they have lots of toys to play with.
15.00~17.00 We try to get some time together alone, going for a walk to talk things over or getting some exercise. This is often the time for quiet trips to the church for prayers.
17.00-17.30 Meet kids for high tea with other mums and dads. They love pasta and have been doing really well with their vegetables although a few chips have been squeezed in.
17.30-18.30. Games with kids at play area. Amelie loves trying to get in the baby pool!
18.30-19.30 Bath and story time with the twins.
20.00 We put the kids to bed.
20.30-23.00 We try to sit down for a family meal, again usually cooked by one of the small family group out here with us. Chat about the day’s events and plan the next day
23.30 bed and prayer for Madeleine that she will be returned to us safely ASAP.
In addition to above we try to attend various church services during the week, and make multiple phone calls to family and friends. We try to watch the main news early morning and late evening but have had almost no time to read the newspapers or even look at the pictures!
Kate is a keen runner and in the last few days has tried to include a run in the daily routine. Yesterday (Sat) at 7am we ran to the monument at the top of the steep cliff overlooking Praia de Luz. We reached it in 19 minutes.
Sponsored by Infohost LTD
Latest Update - Gerry's Blog/Diary
06th June 2007
Day 34
Today seemed to go very well with huge interest in our search for Madeleine. There has also been a little bit of criticism in the German press about the amount of media coverage but this did not seem to diminish the level of interest. The German interviewers are a little more direct with their questions but I was still surprised by the question as to whether Kate and I may be involved in Madeleine?s abduction! Hopefully our answers removed any doubt on that score and that our sole focus in all of the family campaigning is to get Madeleine back.
After the media we met with a couple of politicians in private. Firstly, we saw the deputy justice minister for Germany who gave us reassurances regarding the investigation. Following this we met the Mayor of Berlin who is a very powerful and charismatic politician. He asked us what he could do for us and following this meeting asked German tourists who were in the Algarve around the time of Madeleine?s abduction to come forward. He is very popular and such public backing should help our appeal.
We had to delay our onward flight to Amsterdam because of some information received by the police, which we needed to be consulted on. We diverted to the embassy in Berlin but it turned out to be nothing of interest. We unfortunately had to miss 2 TV programmes as we arrived in Amsterdam 3 hours late, very tired and emotionally drained. We did manage to catch up with a few friends briefly who we know from the year we lived in Amsterdam. They have been actively campaigning here on our behalf with poster distribution, contacting media and liasing with companies to get advertising space for large posters of Madeleine.
Keep up to date with Gerry
View previous entries also
Day to day life for the McCann's
Usually there’s some free time then for a few stories or games with the twins before heading out.
9.00-9.15 We take Sean and Amelie to Kids’ Club. They really enjoy it and run in. They know the staff well and the staff are all excellent. Both love the domestic corner and Amelie particularly likes to look after ‘babies’. We use the kids club a bit like nursery at home but we think Sean and Amelie still think they are on holiday!
9.30~12.15. We return to the apartments, usually for a series of meetings with our press officer, Mark Warner Reps, occasionally Consulate staff, lawyers and British Liaison officers. During this time we catch up with family and close friends, usually by telephone and discuss ideas how to keep Madeleine’s profile high especially throughout continental Europe.
12.30 Time to pick up Sean and Amelie from Kids’ club then head back to apartment for lunch, which has usually been prepared by one of our family/friends group who have been tremendously supportive.
13.30 –14.30 This is time to spend time playing with the twins either in the apartment or in the play area next to kids club.
14.30-15.00 Usually we take the twins back to Kids’ Club although Sean has had the odd afternoon in the apartment as it’s a bit cooler and he’s not much of a sun worshipper! They have been taking part in many different activities including painting, singing, stories, swimming, trips to the beach and they have lots of toys to play with.
15.00~17.00 We try to get some time together alone, going for a walk to talk things over or getting some exercise. This is often the time for quiet trips to the church for prayers.
17.00-17.30 Meet kids for high tea with other mums and dads. They love pasta and have been doing really well with their vegetables although a few chips have been squeezed in.
17.30-18.30. Games with kids at play area. Amelie loves trying to get in the baby pool!
18.30-19.30 Bath and story time with the twins.
20.00 We put the kids to bed.
20.30-23.00 We try to sit down for a family meal, again usually cooked by one of the small family group out here with us. Chat about the day’s events and plan the next day
23.30 bed and prayer for Madeleine that she will be returned to us safely ASAP.
In addition to above we try to attend various church services during the week, and make multiple phone calls to family and friends. We try to watch the main news early morning and late evening but have had almost no time to read the newspapers or even look at the pictures!
Kate is a keen runner and in the last few days has tried to include a run in the daily routine. Yesterday (Sat) at 7am we ran to the monument at the top of the steep cliff overlooking Praia de Luz. We reached it in 19 minutes.
Sponsored by Infohost LTD
Wednesday, June 06, 2007
Supreme Court Reinstates Death Sentence for Man Who Argued Juror Was Wrongly Excluded
Mark Sherman
The Associated Press
06-05-2007
The Supreme Court reinstated the death sentence Monday of a man convicted of carjacking, rape and murder who initially won a reprieve by arguing that a potential juror was wrongly excluded from his trial.
The Court, in a 5-4 decision, said that the Washington state judge who presided over the trial of Cal Coburn Brown properly used his discretion to excuse a potential juror who expressed equivocal views about the death penalty.
The juror in question was challenged by prosecutors because he indicated he would impose the death penalty only if the defendant were in the position to kill again. Jurors' options were limited: they could sentence Brown to death or life in prison with no parole.
Defense lawyers did not object at trial. When the issue was raised on appeal, Washington state courts and a federal judge affirmed the conviction.
But the 9th U.S. Circuit Court of Appeals said the juror should not have been excused because he said he would consider the death penalty in an appropriate case.
Justice Anthony Kennedy, the deciding vote in every death case the Court has heard this session, said the appeals court should have deferred to the trial judge.
"But where, as here, there is lengthy questioning of a prospective juror and the trial court has supervised a diligent and thoughtful (examination), the trial court has broad discretion," Kennedy wrote for the majority. Chief Justice John Roberts and Justices Samuel Alito, Antonin Scalia and Clarence Thomas joined the opinion.
Justice John Paul Stevens, reading a strong dissent from the bench, said the Court wiped away earlier decisions that allow death penalty opponents to sit on juries in capital cases, provided they demonstrate they can set aside their beliefs and follow the law.
Stevens noted that in this case, "the juror struck for cause was not even an opponent of the death penalty." Justices Stephen Breyer, Ruth Bader Ginsburg and David Souter also dissented.
Brown carjacked Holly Washa, 21, and drove her to a hotel near Seattle-Tacoma International Airport. He held her at the motel before leaving her to die.
Brown turned himself in after he raped and tried to kill another woman in Palm Springs, Calif. He admitted to both crimes. In 1993, a King County jury convicted him and sentenced him to die.
A three-judge appeals court panel set aside the death sentence in December 2005.
The case is Uttecht v. Brown, 06-413.
Copyright 2007 Associated Press. All Rights Reserved. This material may not be published, broadcast, rewritten or redistributed.
Stephanie K. McCoy
Paralegal
Cohen Kennedy Dowd & Quigley
The Camelback Esplanade I
2425 East Camelback Road, Suite 1100
Phoenix, Arizona 85016
Ph: 602.252.8400
www.ckdqlaw.com
The Associated Press
06-05-2007
The Supreme Court reinstated the death sentence Monday of a man convicted of carjacking, rape and murder who initially won a reprieve by arguing that a potential juror was wrongly excluded from his trial.
The Court, in a 5-4 decision, said that the Washington state judge who presided over the trial of Cal Coburn Brown properly used his discretion to excuse a potential juror who expressed equivocal views about the death penalty.
The juror in question was challenged by prosecutors because he indicated he would impose the death penalty only if the defendant were in the position to kill again. Jurors' options were limited: they could sentence Brown to death or life in prison with no parole.
Defense lawyers did not object at trial. When the issue was raised on appeal, Washington state courts and a federal judge affirmed the conviction.
But the 9th U.S. Circuit Court of Appeals said the juror should not have been excused because he said he would consider the death penalty in an appropriate case.
Justice Anthony Kennedy, the deciding vote in every death case the Court has heard this session, said the appeals court should have deferred to the trial judge.
"But where, as here, there is lengthy questioning of a prospective juror and the trial court has supervised a diligent and thoughtful (examination), the trial court has broad discretion," Kennedy wrote for the majority. Chief Justice John Roberts and Justices Samuel Alito, Antonin Scalia and Clarence Thomas joined the opinion.
Justice John Paul Stevens, reading a strong dissent from the bench, said the Court wiped away earlier decisions that allow death penalty opponents to sit on juries in capital cases, provided they demonstrate they can set aside their beliefs and follow the law.
Stevens noted that in this case, "the juror struck for cause was not even an opponent of the death penalty." Justices Stephen Breyer, Ruth Bader Ginsburg and David Souter also dissented.
Brown carjacked Holly Washa, 21, and drove her to a hotel near Seattle-Tacoma International Airport. He held her at the motel before leaving her to die.
Brown turned himself in after he raped and tried to kill another woman in Palm Springs, Calif. He admitted to both crimes. In 1993, a King County jury convicted him and sentenced him to die.
A three-judge appeals court panel set aside the death sentence in December 2005.
The case is Uttecht v. Brown, 06-413.
Copyright 2007 Associated Press. All Rights Reserved. This material may not be published, broadcast, rewritten or redistributed.
Stephanie K. McCoy
Paralegal
Cohen Kennedy Dowd & Quigley
The Camelback Esplanade I
2425 East Camelback Road, Suite 1100
Phoenix, Arizona 85016
Ph: 602.252.8400
www.ckdqlaw.com
Wednesday, May 16, 2007
Jury Practices Vary Widely Across the Nation
By Vesna Jaksic
The National Law Journal
05-08-2007
In South Carolina, voir dire in a civil trial typically lasts 30 minutes, a breeze compared with 16 hours in Connecticut. If you're trying a case in Rhode Island, there's a good chance you will question jurors individually, a rare occurrence in North Carolina. And count on Arizona's jurors to submit questions to witnesses -- but don't waste your time worrying about this if your trial is in Mississippi.
Such differences are among the findings of a new report, the first of its kind to examine jury practices from state to state. Released last week, the report was produced by the National Center for State Courts in Williamsburg, Va., and the State Justice Institute in Alexandria, Va.
The report included responses to surveys from more than 11,000 attorneys and judges, and court officials in more than 1,500 counties.
The length of the jury-selection process is one of many factors that lawyers may need to be aware of, said Paula Hannaford-Agor, director of the Center for Jury Studies in Williamsburg and one of the report's three co-authors.
"A huge host of practices vary greatly and if you take someone out of one culture and drop them in another, they really would be quite taken and astounded," she said. That leads back to Connecticut's 16-hour voir dires.
Sixty-three percent of Connecticut respondents said jurors were questioned individually at sidebar or in chambers, which was behind only Rhode Island and Maryland. North Carolina is least likely to question jurors separately, reporting it for fewer than 3 percent of cases.
Jon Schoenhorn, a Hartford, Conn., attorney who is president of the Connecticut Criminal Defense Lawyers Association, said voir dire can often take as long or longer than a trial in the Nutmeg State.
"It's a cumbersome process, but it ensures fairness," said Schoenhorn, who estimated his longest jury impaneling took two months for a capital murder case. "It's the only way to get true answers and the only way you get jurors to speak fairly."
South Carolina is most likely to have a judge-dominated voir dire, which surprised one New York lawyer when he recently tried a fraud case in a federal district court in Columbia, S.C.
"You don't really get to interact with jurors or ask them questions," said Thomas F. Liotti of Law Offices of Thomas F. Liotti in Garden City, N.Y. "I think lawyers need to be more involved in the voir dire process."
Lawyers may receive varying amounts of information about jurors before jury selection depending on which state they are in.
Six states -- Alaska, California, Colorado, North Carolina, Oklahoma and Utah -- provide attorneys with very little access before voir dire, while Hawaii, Minnesota, Massachusetts and New Hampshire are most likely to give out juror information, which could include marital status or number of minor children.
Pamela Wood, Massachusetts' jury commissioner, said that the finding was among many she found useful since it shows what other states are doing.
"I always felt we were quite conservative and resisting pressure to release and collect more information on jurors," she said. "This is helpful in showing that if you don't like what we're doing in Massachusetts, consider what you'd get in other states where you'd not be able to get this information, such as address or marital status."
From state to state, jurors are also compensated differently. New Mexico, for example, has a flat daily rate of $41.20. In California, jurors get $15 a day starting with the second day of service.
16,000 JURY TRIALS PER YEAR
With about 16,000 jury trials per year, California has the highest number in the nation, while Vermont and Wyoming have the fewest, with 126 trials annually. Nationwide, more than a third of Americans can expect to be impaneled as jurors at some point in their lifetimes, the report found.
The survey found that more than half of the courts reported some jury improvement efforts in the past five years (see "Jury-Improvement Efforts http://www.law.com/jsp/article.jsp?id=1178541411751"), with upgrading of technology as the most common focus, followed by decreasing jurors' nonresponse rates.
Examples of new technology include Arizona, where three-quarters of courts reported using video during orientation; Iowa, where more than half of the courts said prospective jurors check their reporting status online; and California, which has an initiative to equip jury assembly rooms with Internet access.
In New York, major trial courts now have wireless Internet and the state has been working on making laptop computers available to jurors, said Alissa Krauss, research director for the Office of Research in the New York State Unified Court System.
There is also an effort to automate the disqualification process so that those who don't qualify for jury duty can provide that information online or by telephone, which is currently not the case, she said.
Stephanie K. McCoy
Paralegal
Cohen Kennedy Dowd & Quigley
The Camelback Esplanade I
2425 East Camelback Road, Suite 1100
Phoenix, Arizona 85016
Ph: 602.252.8400
http://www.ckdqlaw.com
The National Law Journal
05-08-2007
In South Carolina, voir dire in a civil trial typically lasts 30 minutes, a breeze compared with 16 hours in Connecticut. If you're trying a case in Rhode Island, there's a good chance you will question jurors individually, a rare occurrence in North Carolina. And count on Arizona's jurors to submit questions to witnesses -- but don't waste your time worrying about this if your trial is in Mississippi.
Such differences are among the findings of a new report, the first of its kind to examine jury practices from state to state. Released last week, the report was produced by the National Center for State Courts in Williamsburg, Va., and the State Justice Institute in Alexandria, Va.
The report included responses to surveys from more than 11,000 attorneys and judges, and court officials in more than 1,500 counties.
The length of the jury-selection process is one of many factors that lawyers may need to be aware of, said Paula Hannaford-Agor, director of the Center for Jury Studies in Williamsburg and one of the report's three co-authors.
"A huge host of practices vary greatly and if you take someone out of one culture and drop them in another, they really would be quite taken and astounded," she said. That leads back to Connecticut's 16-hour voir dires.
Sixty-three percent of Connecticut respondents said jurors were questioned individually at sidebar or in chambers, which was behind only Rhode Island and Maryland. North Carolina is least likely to question jurors separately, reporting it for fewer than 3 percent of cases.
Jon Schoenhorn, a Hartford, Conn., attorney who is president of the Connecticut Criminal Defense Lawyers Association, said voir dire can often take as long or longer than a trial in the Nutmeg State.
"It's a cumbersome process, but it ensures fairness," said Schoenhorn, who estimated his longest jury impaneling took two months for a capital murder case. "It's the only way to get true answers and the only way you get jurors to speak fairly."
South Carolina is most likely to have a judge-dominated voir dire, which surprised one New York lawyer when he recently tried a fraud case in a federal district court in Columbia, S.C.
"You don't really get to interact with jurors or ask them questions," said Thomas F. Liotti of Law Offices of Thomas F. Liotti in Garden City, N.Y. "I think lawyers need to be more involved in the voir dire process."
Lawyers may receive varying amounts of information about jurors before jury selection depending on which state they are in.
Six states -- Alaska, California, Colorado, North Carolina, Oklahoma and Utah -- provide attorneys with very little access before voir dire, while Hawaii, Minnesota, Massachusetts and New Hampshire are most likely to give out juror information, which could include marital status or number of minor children.
Pamela Wood, Massachusetts' jury commissioner, said that the finding was among many she found useful since it shows what other states are doing.
"I always felt we were quite conservative and resisting pressure to release and collect more information on jurors," she said. "This is helpful in showing that if you don't like what we're doing in Massachusetts, consider what you'd get in other states where you'd not be able to get this information, such as address or marital status."
From state to state, jurors are also compensated differently. New Mexico, for example, has a flat daily rate of $41.20. In California, jurors get $15 a day starting with the second day of service.
16,000 JURY TRIALS PER YEAR
With about 16,000 jury trials per year, California has the highest number in the nation, while Vermont and Wyoming have the fewest, with 126 trials annually. Nationwide, more than a third of Americans can expect to be impaneled as jurors at some point in their lifetimes, the report found.
The survey found that more than half of the courts reported some jury improvement efforts in the past five years (see "Jury-Improvement Efforts http://www.law.com/jsp/article.jsp?id=1178541411751"), with upgrading of technology as the most common focus, followed by decreasing jurors' nonresponse rates.
Examples of new technology include Arizona, where three-quarters of courts reported using video during orientation; Iowa, where more than half of the courts said prospective jurors check their reporting status online; and California, which has an initiative to equip jury assembly rooms with Internet access.
In New York, major trial courts now have wireless Internet and the state has been working on making laptop computers available to jurors, said Alissa Krauss, research director for the Office of Research in the New York State Unified Court System.
There is also an effort to automate the disqualification process so that those who don't qualify for jury duty can provide that information online or by telephone, which is currently not the case, she said.
Stephanie K. McCoy
Paralegal
Cohen Kennedy Dowd & Quigley
The Camelback Esplanade I
2425 East Camelback Road, Suite 1100
Phoenix, Arizona 85016
Ph: 602.252.8400
http://www.ckdqlaw.com
Friday, February 16, 2007
Cancer Victim Wins $1 Million, but Can't Get It Rules say that the prize must be stretched over 20 years
By MARCUS BARAM
(Feb. 13) - On Jan. 12, Wayne A. Schenk thought he was the luckiest man alive.
A month earlier, he'd been diagnosed with inoperable lung cancer. But on this afternoon, the 51-year-old Marine veteran was hanging out with his buddy Domonick Gallo, enjoying the unseasonably warm weather in their hometown of Naples, N.Y., by indulging a favorite ritual: scratching off lottery tickets.
And one of Schenk's $5 High Stakes Blackjack tickets hit it big, winning the $1 million prize. It was more than enough money to pay for the $400,000 in cancer treatments that he desires.
But Schenk's dream-come-true soon turned into a nightmare. When he contacted the New York State Lottery about paying him the money in a lump sum, he learned that the rules of that particular game mandate a payout over 20 years, providing him only $50,000 a year. And he's been given only 12 to 18 months to live.
"Three times we talked to the lottery and they've said that they can't do it," says Schenk, who recently got a brush cut because his hair has started to fall out. "That was more depressing than anything."
Schenk does not have health insurance but as an ex-Marine he's been getting some treatment from the Veteran Affairs hospital in Syracuse, N.Y. "The VA is good but only as good as they can be — they're not up to date on everything and they're a little slow."
Schenk wants to get treated at a cancer center, such as the Eastern Regional Medical Center in Philadelphia. But that facility requires $125,000 up front and $250,000 in reserves for him to get cancer care. He's thought about selling the Orange Inn, a tavern he bought last year, but that would probably take too long and it might not sell for enough money.
Gallo, his buddy, has been working the phones on his behalf, reaching out to hospitals and financial institutions. "When he won the million dollars — as soon as we calmed down and stopped high-fiving each other — he said, 'Now I can get myself into a cancer hospital and save my life," says Gallo. "Why wouldn't the lottery help him out? They just told him no."
Schenk's plight has attracted some attention — State Assemblyman Joseph A. Errigo, R, has been in contact with the state lottery about assigning the winnings directly to a hospital, such as Buffalo's Roswell Cancer Institute. And he is putting together a bill to carve out a one-time exemption from the lottery's rules.
But Errigo acknowledges that legislative action can take years. He says he would help organize a fundraiser for Schenk if all else fails. "What are the odds of winning the lottery and finding out that you only have a year to live?"
Indeed, any change to the lottery's rules would probably take too long — time that Schenk doesn't have. Several years ago, when the state legislature passed a bill to allow a lottery winner who'd lost his ticket to reap his winnings, it took three years from start to jackpot finish.
Lottery officials claim that they are doing what they can to help Schenk. "This is the first time that we've ever had something like this," says deputy director Susan Miller. "We wish we could [give him a lump sum] but we're constrained by the rules and the rules of the game stipulate that's the prize."
Miller says that the best option is for Schenk to get a court order telling the lottery to pay out his winnings to a financial institution or a medical facility. "We're hopeful that we can help Mr. Schenk resolve this to his satisfaction."
But Gallo says that he and Schenk approached several banks which turned them down and that hospitals are equally resistant. "They have to pay their electricity, their doctors — they have to pay those bills today — they can't wait 20 years for their money."
They've also been in discussions with several buyout firms, which would pay $467,000 to buy Schenk's ticket. But after taxes, that amount would be reduced by almost half.
"Why won't someone help out?" asks Gallo. "Wouldn't this be a great story — with great publicity — veteran who has cancer wins money to save his life?"
(Feb. 13) - On Jan. 12, Wayne A. Schenk thought he was the luckiest man alive.
A month earlier, he'd been diagnosed with inoperable lung cancer. But on this afternoon, the 51-year-old Marine veteran was hanging out with his buddy Domonick Gallo, enjoying the unseasonably warm weather in their hometown of Naples, N.Y., by indulging a favorite ritual: scratching off lottery tickets.
And one of Schenk's $5 High Stakes Blackjack tickets hit it big, winning the $1 million prize. It was more than enough money to pay for the $400,000 in cancer treatments that he desires.
But Schenk's dream-come-true soon turned into a nightmare. When he contacted the New York State Lottery about paying him the money in a lump sum, he learned that the rules of that particular game mandate a payout over 20 years, providing him only $50,000 a year. And he's been given only 12 to 18 months to live.
"Three times we talked to the lottery and they've said that they can't do it," says Schenk, who recently got a brush cut because his hair has started to fall out. "That was more depressing than anything."
Schenk does not have health insurance but as an ex-Marine he's been getting some treatment from the Veteran Affairs hospital in Syracuse, N.Y. "The VA is good but only as good as they can be — they're not up to date on everything and they're a little slow."
Schenk wants to get treated at a cancer center, such as the Eastern Regional Medical Center in Philadelphia. But that facility requires $125,000 up front and $250,000 in reserves for him to get cancer care. He's thought about selling the Orange Inn, a tavern he bought last year, but that would probably take too long and it might not sell for enough money.
Gallo, his buddy, has been working the phones on his behalf, reaching out to hospitals and financial institutions. "When he won the million dollars — as soon as we calmed down and stopped high-fiving each other — he said, 'Now I can get myself into a cancer hospital and save my life," says Gallo. "Why wouldn't the lottery help him out? They just told him no."
Schenk's plight has attracted some attention — State Assemblyman Joseph A. Errigo, R, has been in contact with the state lottery about assigning the winnings directly to a hospital, such as Buffalo's Roswell Cancer Institute. And he is putting together a bill to carve out a one-time exemption from the lottery's rules.
But Errigo acknowledges that legislative action can take years. He says he would help organize a fundraiser for Schenk if all else fails. "What are the odds of winning the lottery and finding out that you only have a year to live?"
Indeed, any change to the lottery's rules would probably take too long — time that Schenk doesn't have. Several years ago, when the state legislature passed a bill to allow a lottery winner who'd lost his ticket to reap his winnings, it took three years from start to jackpot finish.
Lottery officials claim that they are doing what they can to help Schenk. "This is the first time that we've ever had something like this," says deputy director Susan Miller. "We wish we could [give him a lump sum] but we're constrained by the rules and the rules of the game stipulate that's the prize."
Miller says that the best option is for Schenk to get a court order telling the lottery to pay out his winnings to a financial institution or a medical facility. "We're hopeful that we can help Mr. Schenk resolve this to his satisfaction."
But Gallo says that he and Schenk approached several banks which turned them down and that hospitals are equally resistant. "They have to pay their electricity, their doctors — they have to pay those bills today — they can't wait 20 years for their money."
They've also been in discussions with several buyout firms, which would pay $467,000 to buy Schenk's ticket. But after taxes, that amount would be reduced by almost half.
"Why won't someone help out?" asks Gallo. "Wouldn't this be a great story — with great publicity — veteran who has cancer wins money to save his life?"
Sunday, February 11, 2007
Homosexuality discussed in the classroom
Officials from a suburban Massachusetts school district asked a federal judge Wednesday to dismiss a lawsuit filed by two couples who claim their parental rights were violated when homosexuality was discussed in their children's classrooms. U.S. District Judge Mark Wolf did not immediately issue a decision in the case from Lexington, but peppered lawyers on both sides with questions and said he understood the importance of the case to both parents and school administrators.
Tonia and David Parker sued after their 5-year-old son brought home a book from kindergarten that depicted a gay family. David Parker was later arrested for refusing to leave his son's school after officials would not agree to notify him when homosexuality was discussed in his son's class.
Another Lexington couple, Joseph and Robin Wirthlin, joined the Parkers in the suit after a second-grade teacher read "King and King" to her class. The fairy tale tells the story of two princes falling in love. Both couples claim Lexington school officials violated their parental rights to teach their own morals to their children.
The case has attracted a great deal of attention in Massachusetts, the only U.S. state that allows same-sex marriage. John Davis, an attorney for Lexington school officials, argued in court Wednesday that teaching diversity is a "legitimate state interest." He said that it would be "an administrative nightmare" for schools in Massachusetts to try to predict when the topic of same-sex marriage will come up and to inform parents ahead of time. "The parents do have rights . . . but they don't have the right to dictate to the public school system what their children can be exposed to in the way of ideas," Davis said.
Robert Sinsheimer, an attorney for the parents who filed the lawsuit, called the homosexual discussions and materials "a form of propaganda" that goes against the parents' religious beliefs. He said the parents do not want to dictate curriculum, but do want to be able to remove their young children from classrooms when homosexuality or gay marriage is being discussed. "What they fear is that their children are being brainwashed," he said. About 30 people on both sides of the issue demonstrated outside the courthouse.
(Denise Lavoie, AP)
Copyright 2007 Associated Press
Tonia and David Parker sued after their 5-year-old son brought home a book from kindergarten that depicted a gay family. David Parker was later arrested for refusing to leave his son's school after officials would not agree to notify him when homosexuality was discussed in his son's class.
Another Lexington couple, Joseph and Robin Wirthlin, joined the Parkers in the suit after a second-grade teacher read "King and King" to her class. The fairy tale tells the story of two princes falling in love. Both couples claim Lexington school officials violated their parental rights to teach their own morals to their children.
The case has attracted a great deal of attention in Massachusetts, the only U.S. state that allows same-sex marriage. John Davis, an attorney for Lexington school officials, argued in court Wednesday that teaching diversity is a "legitimate state interest." He said that it would be "an administrative nightmare" for schools in Massachusetts to try to predict when the topic of same-sex marriage will come up and to inform parents ahead of time. "The parents do have rights . . . but they don't have the right to dictate to the public school system what their children can be exposed to in the way of ideas," Davis said.
Robert Sinsheimer, an attorney for the parents who filed the lawsuit, called the homosexual discussions and materials "a form of propaganda" that goes against the parents' religious beliefs. He said the parents do not want to dictate curriculum, but do want to be able to remove their young children from classrooms when homosexuality or gay marriage is being discussed. "What they fear is that their children are being brainwashed," he said. About 30 people on both sides of the issue demonstrated outside the courthouse.
(Denise Lavoie, AP)
Copyright 2007 Associated Press
Tuesday, January 16, 2007
Man files lawsuit to take wife's name
By GREG RISLING, Associated Press Writer Fri Jan 12, 5:52 PM ET
LOS ANGELES - Mike Buday isn't married to his last name. In fact, he and his fiancee decided before they wed that he would take hers. But Buday was stunned to learn that he couldn't simply become Mike Bijon when they married in 2005.
As in most other states, that would require some bureaucratic paperwork well beyond what a woman must go through to change her name when marrying. Instead of completing the expensive, time-consuming process, Buday and his wife, Diana Bijon, enlisted the American Civil Liberties Union and filed a discrimination lawsuit against the state of California. They claim the difficulty faced by a husband seeking to change his name violates the equal protection clause of the 14th Amendment. "Diana and I feel strongly about gender equality for both men and women," Buday said. "I think the most important thing in all of this is to bring it to a new level of awareness."
Mark Rosenbaum, legal director of the ACLU in Southern California, said it is the first federal lawsuit of its kind in the country. "It's the perfect marriage application for the 17th century," Rosenbaum said. "It belongs in the same trash can as dowries." Only six states — Georgia, Hawaii, Iowa, Massachusetts, New York and North Dakota — have statutes establishing equal name-change processes for men and women when they marry. In California and other states, men cannot choose a different last name while filing a marriage license.
In California, a man who wants to take his wife's name must file a petition, pay more than $300, place a public notice for weeks in a local newspaper and then appear before a judge. Because of Buday's case, a California state lawmaker has introduced a bill to put a space on the marriage license for either spouse to change names.
The Census Bureau does not keep figures on how many U.S. men are taking their brides' names. But clearly it happening more and more. Milwaukee County, Wis., Clerk Mark Ryan estimated that one in every 100 grooms there now takes the name of his wife. Bijon, 28, approached Buday about the idea when they were dating. She had no brothers but wanted to prolong the family name. Buday, a 29-year-old developer of interactive advertising, was estranged from his own father and was not attached to his own last name. "I knew immediately it was pretty important to her or else she wouldn't have brought it up," Buday said.
At one point, the couple tried the Department of Motor Vehicles to get a name change. But Buday said he was told by a woman behind the counter: "Men just don't do that type of thing." Couples who want to hyphenate or combine their names also must endure the lengthy court procedures in California. One of the more notable examples was Los Angeles Mayor Antonio Villaraigosa, who went to court to fuse his last name, Villar, with his wife's, Raigosa, when they married in 1987.
Laws giving women an easy choice of names were largely a byproduct of the feminist movement. A 2004 Harvard University study found that the number of college-educated women who kept their surnames upon marriage rose from about 3 percent in 1975 to nearly 20 percent in 2001.
LOS ANGELES - Mike Buday isn't married to his last name. In fact, he and his fiancee decided before they wed that he would take hers. But Buday was stunned to learn that he couldn't simply become Mike Bijon when they married in 2005.
As in most other states, that would require some bureaucratic paperwork well beyond what a woman must go through to change her name when marrying. Instead of completing the expensive, time-consuming process, Buday and his wife, Diana Bijon, enlisted the American Civil Liberties Union and filed a discrimination lawsuit against the state of California. They claim the difficulty faced by a husband seeking to change his name violates the equal protection clause of the 14th Amendment. "Diana and I feel strongly about gender equality for both men and women," Buday said. "I think the most important thing in all of this is to bring it to a new level of awareness."
Mark Rosenbaum, legal director of the ACLU in Southern California, said it is the first federal lawsuit of its kind in the country. "It's the perfect marriage application for the 17th century," Rosenbaum said. "It belongs in the same trash can as dowries." Only six states — Georgia, Hawaii, Iowa, Massachusetts, New York and North Dakota — have statutes establishing equal name-change processes for men and women when they marry. In California and other states, men cannot choose a different last name while filing a marriage license.
In California, a man who wants to take his wife's name must file a petition, pay more than $300, place a public notice for weeks in a local newspaper and then appear before a judge. Because of Buday's case, a California state lawmaker has introduced a bill to put a space on the marriage license for either spouse to change names.
The Census Bureau does not keep figures on how many U.S. men are taking their brides' names. But clearly it happening more and more. Milwaukee County, Wis., Clerk Mark Ryan estimated that one in every 100 grooms there now takes the name of his wife. Bijon, 28, approached Buday about the idea when they were dating. She had no brothers but wanted to prolong the family name. Buday, a 29-year-old developer of interactive advertising, was estranged from his own father and was not attached to his own last name. "I knew immediately it was pretty important to her or else she wouldn't have brought it up," Buday said.
At one point, the couple tried the Department of Motor Vehicles to get a name change. But Buday said he was told by a woman behind the counter: "Men just don't do that type of thing." Couples who want to hyphenate or combine their names also must endure the lengthy court procedures in California. One of the more notable examples was Los Angeles Mayor Antonio Villaraigosa, who went to court to fuse his last name, Villar, with his wife's, Raigosa, when they married in 1987.
Laws giving women an easy choice of names were largely a byproduct of the feminist movement. A 2004 Harvard University study found that the number of college-educated women who kept their surnames upon marriage rose from about 3 percent in 1975 to nearly 20 percent in 2001.
Saturday, January 06, 2007
Rehnquist Addicted to Painkillers for Years
By PETE YOST
AP
WASHINGTON (Jan. 5) - A physician at the U.S. Capitol prescribed a powerful sleep aid for William Rehnquist for nearly a decade while he was an associate justice of the Supreme Court , according to newly released FBI records.
The records present a picture of a justice with chronic back pain who for many months took three times the recommended dosage of the drug Placidyl and then went into withdrawal in 1981 when he abruptly stopped taking it.
Rehnquist checked himself into a hospital, where he tried to escape in his pajamas and imagined that the CIA was plotting against him, the records indicate.
Although Rehnquist's drug dependency was publicly known around the time he was hospitalized in 1981, the release of the FBI records provides new details.
The justice was weaned off Placidyl in early 1982 in a detoxification process that took a month, according to the records. The hospital doctor who treated Rehnquist said the Capitol Hill physician who prescribed Placidyl for Rehnquist was practicing bad medicine, bordering on malpractice. Both doctors' names were deleted from the documents before they were released.
The FBI documents were prepared in 1986 when Rehnquist - who began serving on the court on Jan. 7, 1972 - was nominated for chief justice, years after his problems with the drug had ended. They were released by the agency in response to requests under the Freedom of Information Act. The agency said one of the seven folders of Rehnquist documents could not be found.
A psychiatrist told the FBI that Rehnquist's family in 1981 noted "long-standing slurred speech which seems to coincide with administration of Placidyl," one FBI interview report stated. The psychiatrist also indicated that Rehnquist's chronic back pain led to his heavy use of such substances as Darvon and Tylenol 3, which the psychiatrist said also played a part in Rehnquist's condition.
An attending physician at the U.S. Capitol detailed Rehnquist's problems with Placidyl for the FBI, saying that prior to his seeing the justice in 1972, Rehnquist was prescribed the drug by another doctor for relief from insomnia. The attending physician told the FBI he continued to prescribe Placidyl for the entire 10-year period that he treated Rehnquist.
The physician said that Rehnquist had been prescribed 500 milligrams of Placidyl per evening, but that Rehnquist was actually taking 1,500 milligrams each night. The doctor said this increased consumption may have coincided with Mrs. Rehnquist's illness and treatment for cancer.
Rehnquist had told the physician that he was taking one pill before going to bed and he would take other pills if he awakened during the night.
The physician indicated that he decided to discontinue the drug's use and to try another medication. Rehnquist said the new medication was not strong enough, an FBI interview report stated. The physician said he then prescribed a substitute and then another, at which point Rehnquist went into the hospital..
The hospital doctor who successfully weaned Rehnquist from the drug told the FBI that the toxicity of Placidyl causes blurred vision, slurred speech and difficulty in making physical movements. Once a patient stops taking the drug, the withdrawal symptoms of delirium begin, which is what happened to Rehnquist at the hospital.
The doctor who helped Rehnquist get off the drug said the justice's wife was highly upset and felt that the prescribing physician and the pharmacist who filled the prescription were probably intimidated by such high-ranking officials as Supreme Court justices and senators and probably would have agreed to almost any request.
Copyright 2007 The Associated Press. The information contained in the AP news report may not be published, broadcast, rewritten or otherwise distributed without the prior written authority of The Associated Press. All active hyperlinks have been inserted by AOL.
2007-01-05 10:40:48
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