Posted On: May 29, 2009

ABA Journal Weekly Newsletter

Top Ten Stories of the Week ending May 29, 2009:

Layoffs
2009's Toll: More Than 10,000 Law Firm Layoffs and Lower Pay Trend
May 28, 2009, 10:43 am CDT

Law Firms
Ex-Sidley Associate Pens Tell-All Memoir of China Sexcapades
May 27, 2009, 09:28 am CDT

Law Practice Management
Mayer Brown Summer Associate May Have Swine Flu
May 27, 2009, 06:15 pm CDT

Supreme Court Nominations
The Four Likely Lines of Attack Against Sonia Sotomayor
May 26, 2009, 08:54 am CDT

Plus:

Sotomayor Confirmation Is a Certainty, SCOTUSblog Says
Few Quotable Quotes in Sotomayor Opinions; Was Ambition the Reason?
Sotomayor Made Shaw Pittman Apologize for Partner's Questions
'Fendi Crush' was Highlight of Sotomayor's IP Practice
Law Firms
Lawyers Joke that GM Bankruptcy Will Deplete Experienced Bar
May 26, 2009, 08:22 am CDT

Personal Lives
Sleep Docs Offer Tips for Legal Workers and Others Stressed Out by Economy
May 26, 2009, 12:41 pm CDT

Careers
What New Lawyers Need to Know: Business Emphasis Not a 'Torture System'
May 28, 2009, 08:45 am CDT

Law Firms
Jones Day Memo Freezes Staff Pay, Asks Troops to Work Harder
May 27, 2009, 12:21 pm CDT

U.S. Supreme Court
High Court Overrules Decision Barring Questioning After Lawyer Appointment
May 26, 2009, 09:49 am CDT

White-Collar Crime
Paralegal Bought Elderly Lawyer's Law Practice for $20
May 27, 2009, 06:11 am CDT


Posted On: May 29, 2009

Violence Against Women Act Courts Program: Input Needed

From Brenda k. Uekert, Senior Research Associate, National Center for State Courts:

The Court Training and Improvements Program (Courts Program) was created by the Violence Against Women Act of 2005. The specific criteria that will be used to solicit proposals for the Courts Program is currently being considered by the appropriate federal entities. The National Center for State Courts seeks input from courts on your ongoing needs (e.g., domestic violence courts, training, hiring/retaining specialized staff) in the areas of domestic violence, dating violence, sexual assault, and stalking.

We have the opportunity to help shape the solicitation that will introduce the Courts Program grants. We are particularly interested in the topics of domestic violence courts/dockets and training. We would like to hear from you about your current challenges and needs. What specific components of a grant program would help improve your court’s responses to the types of acts noted in the Violence Against Women Act?

To help us compile responses, we have created a very short online information collection tool. You should be able to complete the form in 5 minutes. We invite you to share your comments by clicking on the following link: www.ncsconline.org/SelectSurveyNET/TakeSurvey.aspx?SurveyID=l6L0672.

Please feel free to send this email request on to colleagues and related listservs. We thank you in advance for your help.

Posted On: May 29, 2009

Internet Society Posts Report on Internet Governance Survey

The Internet Society conducted a survey of members on the topic of
Internet Governance in April and May 2009. The purpose was to assist
ISOC in addressing Internet governance issues in the discussion up to
and including the Internet Governance Forum (IGF) in Sharm El Sheikh
in November 2009. It was also designed to help ISOC contribute to the
current consultation on "the desirability of the continuation of the
Forum in formal consultation with Forum participants" after 2010.

The summary of the results is now available here:

http://isoc.org/pubpolpillar/docs/ig-survey-report-200905.pdf

The results were reported to the IGF Open Consultations sessions
starting in Geneva on 13 May

Posted On: May 29, 2009

Elder Abuse Training - Tuition Free: Addressing Abuse as America Ages

The National District Attorneys Association/National College of District Attorneys (NDAA), the National Clearinghouse on Abuse in Later Life (NCALL), and the Office on Violence Against Women, U.S. Department of Justice (OVW), are pleased to announce a training opportunity on elder abuse, neglect, and exploitation. The conference, Addressing Abuse as America Ages: Enhancing the safety of elder abuse survivors, will begin Wednesday, September 30, 2009, and end Thursday, October 1. The course will be held at the Minneapolis Marriott City Center in Minneapolis, Minnesota.

The purpose of the conference is to strengthen the capacity of domestic violence and sexual assault programs, the justice system, adult protective services, the aging network and other organizations to respond effectively to older victims; hold elder abuse offenders accountable; and work collaboratively. Participants will work for two days in plenary sessions, workshops, and large groups to gain or renew the strength to promote victim safety and offender accountability. Any advocate who works in the fields of domestic violence, sexual assault, or elder abuse; criminal justice professionals; aging network providers; adult protective services workers; and survivors of elder abuse are all welcome and encouraged to attend. Participants from all 50 states, especially those representing underserved populations, are encouraged to apply.

No fee will be charged for the conference, but participants will be expected to pay their own travel, hotel, per diem, expenses, etc. OVW grant funds designated for training purposes may be allowed to be used for this purpose, if a program's OVW grant manager specifically approves such use. (The hotel arrangements provide for a rate of only $130/night, the Federal per diem rate.) Submission of an application is not a guarantee of attendance at the conference; please DO NOT make travel arrangements unless and until you have been notified that you are accepted.

The deadline for application has been extended; applications will be accepted through June 19, 2009. The application and additional information can be found at: http://www.ndaa.org/education/ndaa/elder_abuse_training_schedule.html.

For more information about this conference, visit the above link or
contact Erin Baldwin at 803-705-5093 or ebaldwin@ndaa.org.


Posted On: May 29, 2009

New York Appellate Criminal Cases Originating From the New York Supreme Court NY County - LexisNexis

Update from the Lexis Alert Service,

May 26 & 29, 2009:.


1. People v. Rodriguez, 614, 4545N/05, SUPREME COURT OF NEW YORK, APPELLATE DIVISION, FIRST DEPARTMENT, 2009 NY Slip Op 4005; 2009 N.Y. App. Div. LEXIS 3802, May 21, 2009, Decided, May 21, 2009, Entered, THE LEXIS PAGINATION OF THIS DOCUMENT IS SUBJECT TO CHANGE PENDING RELEASE OF THE FINAL PUBLISHED VERSION., THIS OPINION IS UNCORRECTED AND SUBJECT TO REVISION BEFORE PUBLICATION IN THE OFFICIAL REPORTS.
The People of the State ...
Judgment, Supreme Court, New York County (Michael J. Obus, ...

2. People v. Reyes, 618, 3444/05, SUPREME COURT OF NEW YORK, APPELLATE DIVISION, FIRST DEPARTMENT, 2009 NY Slip Op 4008; 2009 N.Y. App. Div. LEXIS 3804, May 21, 2009, Decided, May 21, 2009, Entered, THE LEXIS PAGINATION OF THIS DOCUMENT IS SUBJECT TO CHANGE PENDING RELEASE OF THE FINAL PUBLISHED VERSION., THIS OPINION IS UNCORRECTED AND SUBJECT TO REVISION BEFORE PUBLICATION IN THE OFFICIAL REPORTS.
The People of the State ...
Judgment, Supreme Court, New York County (William A. Wetzel, ...

3. People v. Grant, 610, 871/06, SUPREME COURT OF NEW YORK, APPELLATE DIVISION, FIRST DEPARTMENT, 2009 NY Slip Op 4001; 2009 N.Y. App. Div. LEXIS 3800, May 21, 2009, Decided, May 21, 2009, Entered, THE LEXIS PAGINATION OF THIS DOCUMENT IS SUBJECT TO CHANGE PENDING RELEASE OF THE FINAL PUBLISHED VERSION., THIS OPINION IS UNCORRECTED AND SUBJECT TO REVISION BEFORE PUBLICATION IN THE OFFICIAL REPORTS.
The People of the State ...
Judgment, Supreme Court, New York County (John Cataldo, J.), ...

4. People v. Rincon, 623, 1187/03, SUPREME COURT OF NEW YORK, APPELLATE DIVISION, FIRST DEPARTMENT, 2009 NY Slip Op 4012; 2009 N.Y. App. Div. LEXIS 3801, May 21, 2009, Decided, May 21, 2009, Entered, THE LEXIS PAGINATION OF THIS DOCUMENT IS SUBJECT TO CHANGE PENDING RELEASE OF THE FINAL PUBLISHED VERSION., THIS OPINION IS UNCORRECTED AND SUBJECT TO REVISION BEFORE PUBLICATION IN THE OFFICIAL REPORTS.
The People of the State ...
Judgment of resentence, Supreme Court, New York County (Ruth Pickholz, J.), ...

5. People v. Guardino, 5053, 3491/04, SUPREME COURT OF NEW YORK, APPELLATE DIVISION, FIRST DEPARTMENT, 2009 NY Slip Op 3995; 2009 N.Y. App. Div. LEXIS 3817, May 21, 2009, Decided, May 21, 2009, Entered, THE LEXIS PAGINATION OF THIS DOCUMENT IS SUBJECT TO CHANGE PENDING RELEASE OF THE FINAL PUBLISHED VERSION., THIS OPINION IS UNCORRECTED AND SUBJECT TO REVISION BEFORE PUBLICATION IN THE OFFICIAL REPORTS.
The People of the State ...
Judgment, Supreme Court, New York County (Robert H. Straus, ...

6. People v. Rodriguez, 615, 4545N/05, SUPREME COURT OF NEW YORK, APPELLATE DIVISION, FIRST DEPARTMENT, 2009 NY Slip Op 4006; 2009 N.Y. App. Div. LEXIS 3807, May 21, 2009, Decided, May 21, 2009, Entered, THE LEXIS PAGINATION OF THIS DOCUMENT IS SUBJECT TO CHANGE PENDING RELEASE OF THE FINAL PUBLISHED VERSION., THIS OPINION IS UNCORRECTED AND SUBJECT TO REVISION BEFORE PUBLICATION IN THE OFFICIAL REPORTS.
The People of the State ...
Judgment, Supreme Court, New York County (William A. Wetzel, ...

Continue reading " New York Appellate Criminal Cases Originating From the New York Supreme Court NY County - LexisNexis " »

Posted On: May 27, 2009

Judge Sonia Sotomayor: Background Documents, LC Materials, Two Opinions, And Completed Questionnaire

To help those who are interested in information beyond that available in the popular news media regarding Judge Sotomayor we have assembeled two background documents, two of Judge Sotomayor's opinions, one from 2002 and another from 2008. Also included is a completed copy of the questionnaire of Judge Sotoamyor prepared for and delivered to the Senate Judiciary Committee. All judicial candidates such as Sonia Sotomayor are required to complete and submit a questionnaire as part of the confirmation process. You can view these documents from the links below. The links contain brief title descriptions of the respective materials:

Background on Judge Sonie Sotomayor Prepared by the White House, May 2009

Vote Summary on the Nomination of
Sonia Sotomayor to be a U.S. Circuit Judge for the Second Circuit, Compiled Oct 2, 1998

Opinion Decided by Judge Sotomayor in Matter of Pappas v. Giuliani, May 13, 2002

Opinion Decided by Judge Sotomayor in the Matter of Ricci v. DeStefano, June 9, 2008

Completed Questionnaire of U.S. Supreme Court nominee Hon. Sonia Sotomayor as submiteed to th Committee of the Judiciary of the U.S. Senate on Thursday June 4, 2009/

In addition to the above documents The Law Library of Congress has launched a new resource on U.S.Supreme Court Nominee Sonia Sotomayor at http://www.loc.gov/law/find/sotomayor.php. The site contains information on articles and books by Sotomayor, Congressional documents, cases, and web resources.

Posted On: May 27, 2009

ABA: U.S. Supreme Court Updates

May 27, 2009.

A Service from the ABA Criminal Justice Section, http://www.abanet.org/crimjust
MONTEJO v. LOUISIANA (No. 07-1529)

Mr. Montejo was arrested on September 6th, 2002, in connection with the robbery and murder of Mr. Lewis Ferrari. During police questioning of Mr. Montejo, which lasted from late afternoon on the 6th to early morning on the 7th, Mr. Montejo repeatedly changed the account of the crime, ultimately confessing to having shot and killed Mr. Ferrari during a failed burglary. Later, after being read his Miranda rights for a second time, Mr. Montejo agreed to accompany police in retrieving the alleged murder weapon. During this excursion, Mr. Montejo wrote a letter of apology to Mr. Ferrari’s widow. Mr. Montejo did not have access to his court-appointed attorney until his return to jail, who was upset that his client had been interrogated in his absence and subsequently objected to the apology letter’s admission as evidence at trial.

The jury convicted Mr. Montejo, who was sentenced to death. The Louisiana Supreme Court affirmed the conviction and sentence, relying on Montoya v. Collins, 955 F.2d 279 (1992), explanation of the rule in Michigan v. Jackson, 475 U.S. 625, 636 (1986), reasoning that the prophylactic protection of Jackson is not triggered unless and until the defendant has actually requested a lawyer or has otherwise asserted his Sixth Amendment right to counsel. At a hearing where a judge ordered the appointment of counsel, Mr. Montejo did not explicitly request a meeting with his counsel, but rather, remained mute.

The USSC held, in deciding whether courts must presume that a waiver of an accused’s Miranda rights is invalid under certain circumstances, that when a court appoints counsel for an indigent defendant in the absence of any request on his part, there is no basis for a presumption that any subsequent waiver of the right to counsel will be involuntary. The USSC explains that the rule laid out in Jackson was designed to prevent police from badgering defendants into changing their mind about their rights, but a defendant who has never asked for counsel, such as Mr. Montejo, has not yet made up his or her mind.

Scalia, J., delivered the opinion of the Court, in which Roberts, C.J., and Kennedy, Thomas, and Alito, J.J., joined. Alito, J., filed a concurring opinion, in which Kennedy, J., joined. Stevens, J., filed a dissenting opinion, in which Souter and Ginsburg, J.J., joined, and in which Breyer, J., joined, except for n. 5. Breyer, J., filed a dissenting opinion.

Available at: http://www.supremecourtus.gov/opinions/08pdf/07-1529.pdf

ABUELHAWA V. UNITED STATES

No. 08-192 (May 26, 2009)

After tapping the phone of suspected drug dealer Mohammed Said, FBI agents recorded six calls between Said and petitioner Salman Khade Abuelhawa, during which Abuelhawa arranged to buy cocaine in two separate transactions, each time for a single gram. Under §844 of the Controlled Substances Act, Abuelhawa’s purchases were misdemeanors, and Said’s two sales were felonies. However, the government charged Abuelhawa with six felonies on the theory that each phone call violated §843(b), which makes it a felony "to use any communication facility in… facilitating" felony drug sales.

Abuelhawa moved for acquittal on the grounds that his efforts to commit the misdemeanor could not be treated as facilitating Said’s felonies, but the motion was denied and Abuelhawa was convicted on all six counts. Abuelhawa argued the same point before the Court of Appeals for the Fourth Circuit, which upheld the conviction, reasoning that Abuelhawa’s use of a phone counted as facilitation because it “undoubtedly made Said’s cocaine distribution easier.”

The Supreme Court reversed the decision, holding that using a telephone to make a misdemeanor drug purchase does not "facilitate" felony drug sales in violation of §843(b). Where a transaction like a sale necessarily presupposes two parties with specific roles, it would be “odd” to speak of one party as facilitating the other’s conduct. The Court relied on holdings in similar cases in which adding to the penalty of the party on one side for facilitating the actions by the other would upend the “legislature’s punishment calibration.” See Gebardi v. United States, 287 U.S. 112, 119.

Furthermore, since the word “facilitate” is generally synonymous with “aid,” “abet,” or “assist,” it is likely that Congress had an equivalent meaning in mind when it enacted §843(b). Any broader reading would for practical purposes destroy the distinction between the possession of drugs and the distribution of drugs. Finally, the fact that Congress had previously downgraded possession from a felony to a misdemeanor shows that Congress meant to treat purchasing drugs for personal use more leniently than felony distribution, and to narrow the scope of the communications provision to cover only those who facilitate a felony. Therefore, Abuelhawa’s actions could not be considered “facilitation” of Said’s felonies.

Souter, J., delivered the opinion for a unanimous court.

Available at: http://www.law.cornell.edu/supct/html/08-192.ZS.html

Posted On: May 27, 2009

Cool Software Every Paralegal and Law Librarian Could Use

Kim Walker, an experienced litigation paralegal with the firm of Berger & Montague in Philadelphia, has written a useful article describing software programs that can save paralegal's time and their organizations money. Reading through Kim's article I was struck by the thought that an increasing number of law librarians are also using this same software to save them time, enable them to work smarter, and benefit their organizations as well For these reasons I have changed Kim's title slightly for this posting to also include law librains and placing a link to Kim Walker's entire article, hoping that her insights can prove valuable to both paralegals and law librarians.

Article: Cool Software Every Paralegal Could Use

Posted On: May 27, 2009

New York Appellate Criminal Cases Originating from the New York Supreme Court New York County

Update from the Lexis Alert Service,

May 27, 2009:.


1. People v. Fuller, 523, 1944/06, SUPREME COURT OF NEW YORK, APPELLATE DIVISION, FIRST DEPARTMENT, 2009 NY Slip Op 3770; 877 N.Y.S.2d 890; 2009 N.Y. App. Div. LEXIS 3653, May 12, 2009, Decided, May 12, 2009, Entered, THE LEXIS PAGINATION OF THIS DOCUMENT IS SUBJECT TO CHANGE PENDING RELEASE OF THE FINAL PUBLISHED VERSION., THIS OPINION IS UNCORRECTED AND SUBJECT TO REVISION BEFORE PUBLICATION IN THE OFFICIAL REPORTS.
The People of the State ...
Judgment, Supreme Court, New York County (A. Kirke Bartley, ...

2. People v. Smith, 543, 4858/06, SUPREME COURT OF NEW YORK, APPELLATE DIVISION, FIRST DEPARTMENT, 2009 NY Slip Op 3787; 877 N.Y.S.2d 893; 2009 N.Y. App. Div. LEXIS 3666, May 12, 2009, Decided, May 12, 2009, Entered, THE LEXIS PAGINATION OF THIS DOCUMENT IS SUBJECT TO CHANGE PENDING RELEASE OF THE FINAL PUBLISHED VERSION., THIS OPINION IS UNCORRECTED AND SUBJECT TO REVISION BEFORE PUBLICATION IN THE OFFICIAL REPORTS.
The People of the State ...
Judgment, Supreme Court, New York County (Lewis Bart Stone, ...

3. People v. Jackson, 532, 2737/06, SUPREME COURT OF NEW YORK, APPELLATE DIVISION, FIRST DEPARTMENT, 2009 NY Slip Op 3776; 877 N.Y.S.2d 892; 2009 N.Y. App. Div. LEXIS 3664, May 12, 2009, Decided, May 12, 2009, Entered, THE LEXIS PAGINATION OF THIS DOCUMENT IS SUBJECT TO CHANGE PENDING RELEASE OF THE FINAL PUBLISHED VERSION., THIS OPINION IS UNCORRECTED AND SUBJECT TO REVISION BEFORE PUBLICATION IN THE OFFICIAL REPORTS.
The People of the State ...
Judgment, Supreme Court, New York County (William A. Wetzel, ..

Posted On: May 27, 2009

Sir Tim Berners-Lee Honored With Webby Lifetime Achievement Award

"The Webby Awards is thrilled to announce that Sir Tim Berners-Lee is scheduled to attend the 13th Annual Webby Awards Gala on June 8, where he will be honored with a Webby Award for Lifetime Achievement in recognition of his enormous contribution to the world of Internet technology and communications. Widely known as the inventor of the World Wide Web, Berners-Lee created the first versions of the technologies -- including HTML, URL, and HTTP -- that turned the Internet into a mass medium. Since he invented the Web twenty years ago, Berners-Lee has remained its most active and passionate advocate, working tirelessly to ensure that it remains open, free, and a tool for helping humankind..."

Posted On: May 27, 2009

Review: Dreams From the Monster Factory: A Tale of Prison, Redemption and One Woman's Fight to Restore Justice to All

Dreams from the Monster Factory: A Tale of Prison, Redemption and One Woman's Fight to Restore Justice to All
by Sunny Schwartz, with David Boodell
Scribner, 204 pp., $24.00

Reviewed by Helen Epstein in a forthcoming issue of The New York Review of Books (Volume 56 Number 9 June 11, 2009).

Here is an excerpt from that review:

"Senator Jim Webb of Virginia is currently sponsoring a bill that would create a commission to review America's entire criminal justice system and make recommendations for reform. If the bill passes, its commissioners should bear in mind a small experiment that took place in the San Francisco County Jail in San Bruno, California, some years ago. This project, the subject of Sunny Schwartz's brief, absorbing memoir Dreams from the Monster Factory, is important not just because it dramatically reduced recidivism, but also because it could help break the tired stalemate between liberals and conservatives over punishment versus rehabilitation. In addition, Schwartz's book is revealing about the criminal mind and its thought processes, and thus contains valuable lessons for those at risk of incarceration, and for those close to them."

See the Complete Review.


Posted On: May 26, 2009

ABA Publication: Garner on Language and Writing

By Bryan A. Garner
Foreword by Justice Ruth Bader Ginsburg

"Bryan Garner has collected over a hundred of his finest essays on writing, language, and style in this substantial anthology. The book includes sections on legal language and lexicography, how to write successfully as a professional, and concludes with chapters on what he calls "bizarreries" --entertaining descriptions of puns, curiosities, vocabulary use, and other hilarious writing escapades. Finally, Garner includes several tributes to great stylists, and concludes with recommendations for making oneself a great writer, grammarian, and stylist".

"Bryan A. Garner is the best-selling author of more than a dozen books. Chief among them are A Dictionary of Modern American Usage, Legal Writing in Plain English, The Winning Brief, The Elements of Legal Style, and many others."

Product Details:
Regular Price: $59.95
ABA Member Price: $54.95

©2008 - Hardcover, 6 x 9 876 pages

Product Code:
1610057


Posted On: May 26, 2009

Findlaw Case Summaries: U.S. Supreme Court

To view the full-text of cases you must sign in to FindLaw.com. All summaries are produced by Findlaw.

May 26, 2009.

CIVIL RIGHTS, CRIMINAL LAW & PROCEDURE, GOVERNMENT LAW, LABOR & EMPLOYMENT LAW
Haywood v. Drown, No. 07-10374
In a 42 U.S.C. section 1983 action by a prisoner, judgment for Defendant-Officers is reversed where Correction Law section 24, as applied to Section 1983 claims, violates the Supremacy Clause, because New York's policy of shielding correctional officers from liability for conduct performed in the scope of their employment is contrary to Congress's judgment that all persons who violate federal rights while acting under color of state law shall be held liable for damages.


CRIMINAL LAW & PROCEDURE
Abuelhawa v. US, No. 08-192
Drug distribution conviction is reversed and the case remanded, where Defendant's drug purchases from a third party over the phone constituted misdemeanors, because using a telephone to make a misdemeanor drug purchase does not "facilitate" felony drug distribution in violation of 18 U.S.C. section 843(b).

.CRIMINAL LAW & PROCEDURE
Montejo v. Louisiana, No. 07-1529
Capital murder conviction is vacated, where Michigan v. Jackson, 475 U.S. 625 (1986), is overruled, because requiring an "initial invocation" of the right to counsel in order to trigger the Jackson presumption might work in states that require an indigent defendant formally to request counsel before an appointment is made, but not in more than half the states that appoint counsel without request from the defendant.

Posted On: May 26, 2009

Findlaw Case Summaries: Criminal Law and Procedure

To view the full-text of cases you must sign in to FindLaw.com. All summaries are produced by Findlaw.

May 17-22, 2009.

U.S. 1st Circuit Court of Appeals, May 19, 2009
US v. Paret-Ruiz , No. 06-2709
Conviction for conspiracy to import cocaine with intent to distribute is reversed and remanded with instructions to enter a verdict of not guilty where the evidence was insufficient for a reasonable jury to conclude that defendant had an agreement to import or possess cocaine with anyone other than a government agent.

U.S. 1st Circuit Court of Appeals, May 20, 2009
US v. Pulido , No. 08-1626
Conviction and sentence on drug and firearms charges is affirmed where: 1) the district court did not commit reversible error in denying defendant's motion to withdraw his guilty plea without conducting an evidentiary hearing, as defendant's allegations that his plea was not voluntary and knowing were contradicted by the record; 2) the court did not abuse its discretion in denying defendant's motion to recuse based on the court's statement about defendant in a different case, as the evidence shows that there was no likely appearance of partiality; 3) the court did not err and fail to consider mitigating evidence related to the U.S.S.G. sec. 3553(a) factors, as the record shows the court considered all of the mitigating evidence; and 4) the court did not err in imposing the mandatory minimum sentence for the firearm count under 18 U.S.C. sec. 924(c). ..

U.S. 3rd Circuit Court of Appeals, May 20, 2009
US v. Jones, No. 07-2798
Conviction for conspiracy to commit murder, attempted murder and assault with a dangerous weapon under the Violent Crimes in Aid of Racketeering Act is affirmed where: 1) the district court did not abuse its discretion in failing to restart jury selection after six co-defendants pled guilty during voir dire, and thus did not violate his Fifth and Sixth Amendment rights; 2) the court properly rejected defendant's motion for judgment of acquittal on his conviction for murder conspiracy, as a rational jury could have found all elements of the murder conspiracy charge beyond a reasonable doubt; 3) the court did not abuse its discretion by admitting challenged evidence at trial as the evidence did not overwhelm the jury or prejudice its judgment; and 4) defendant's sentence was not procedurally or substantively unreasonable.

Continue reading " Findlaw Case Summaries: Criminal Law and Procedure " »

Posted On: May 26, 2009

Findlaw Case Summaries: Constitutional Law

To view the full-text of cases you must sign in to FindLaw.com. All summaries are produced by Findlaw.

May 17-22, 2009.

U.S. Supreme Court, May 18, 2009
Ashcroft v. Iqbal, No. 07-1015
In an action alleging that Plaintiff, who was arrested on suspicion of September-11th terrorist activity, was unconstitutionally detained, the denial of the government's motion to dismiss is reversed and remanded where the complaint failed to plead sufficient facts to state a claim for purposeful and unlawful discrimination, as it did not show that the government policy under which Plaintiff was detained was based on discriminatory factors.

U.S. 4th Circuit Court of Appeals, May 21, 2009
McLean v. US, No. 06-7784
In an action by a prisoner against the U.S. claiming that the AEDPA statute of limitations is unconstitutional, the complaint's dismissal is affirmed, where Plaintiff did not violate the Prison Litigation Reform Act by filing his suit because a dismissal without prejudice for failure to state a claim does not count as a "strike" under 28 U.S.C. section 1915(g), but Plaintiff's claim nonetheless failed due to the U.S.'s immunity from suit.

U.S. 4th Circuit Court of Appeals, May 21, 2009
Fields v. Prater, No. 08-1437
In a 42 U.S.C. section 1983 action claiming that Defendants prevented a state agency from hiring Plaintiff based on her political affiliation, the denial of Defendants' motion for summary judgment based on qualified immunity is affirmed, where clearly established law did not prohibit Defendants' actions. .

U.S. 9th Circuit Court of Appeals, May 18, 2009
Nichols v. Dancer, No. 07-15654
In an action alleging that Defendants terminated public employee-Plaintiff for exercising her First Amendment rights, summary judgment for Defendants is reversed, where the patronage dismissal doctrine does not immunize public employers who terminate employees on the basis of a perceived lack of personal loyalty.

U.S. 9th Circuit Court of Appeals, May 18, 2009
Byrd v. Maricopa Cty. Sheriff's Dept., No. 07-16640
In a 42 U.S.C. section 1983 action by an arrestee alleging an illegal pat down search by a female officer, judgment for Defendants is affirmed where: 1) Plaintiff failed to allege any discriminatory intent; and 2) Plaintiff opened the door to the introduction of a video describing how searches such as the one at issue were performed.


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Posted On: May 22, 2009

New York Appellate Criminal Cases Originating from the New York Supreme Court NY County - Lexis/Nexis

Update from the Lexis Alert Service,

May 21, 2009:.

1. People v. Bolar, 599, 5414/06, SUPREME COURT OF NEW YORK, APPELLATE DIVISION, FIRST DEPARTMENT, 2009 NY Slip Op 3946; 2009 N.Y. App. Div. LEXIS 3791, May 19, 2009, Decided, May 19, 2009, Entered, THE LEXIS PAGINATION OF THIS DOCUMENT IS SUBJECT TO CHANGE PENDING RELEASE OF THE FINAL PUBLISHED VERSION., THIS OPINION IS UNCORRECTED AND SUBJECT TO REVISION BEFORE PUBLICATION IN THE OFFICIAL REPORTS.
The People of the State ...
Judgment, Supreme Court, New York County (Eduardo Padro, J.), ...

2. People v. Liggan, 573, 574, 297/04, SUPREME COURT OF NEW YORK, APPELLATE DIVISION, FIRST DEPARTMENT, 2009 NY Slip Op 3929; 2009 N.Y. App. Div. LEXIS 3781, May 19, 2009, Decided, May 19, 2009, Entered, THE LEXIS PAGINATION OF THIS DOCUMENT IS SUBJECT TO CHANGE PENDING RELEASE OF THE FINAL PUBLISHED VERSION., THIS OPINION IS UNCORRECTED AND SUBJECT TO REVISION BEFORE PUBLICATION IN THE OFFICIAL REPORTS.
The People of the State ...
Judgment, Supreme Court, New York County (Carol Berkman, J.), ...

3. People v. McNeely, 589, 590, 531/08, SUPREME COURT OF NEW YORK, APPELLATE DIVISION, FIRST DEPARTMENT, 2009 NY Slip Op 3940; 2009 N.Y. App. Div. LEXIS 3783, May 19, 2009, Decided, THE LEXIS PAGINATION OF THIS DOCUMENT IS SUBJECT TO CHANGE PENDING RELEASE OF THE FINAL PUBLISHED VERSION., THIS OPINION IS UNCORRECTED AND SUBJECT TO REVISION BEFORE PUBLICATION IN THE OFFICIAL REPORTS.
The People of the State ...
Judgment, Supreme Court, New York County (Renee A. White, ...

4. People v. Tucker, 176, 800/07, SUPREME COURT OF NEW YORK, APPELLATE DIVISION, FIRST DEPARTMENT, 2009 NY Slip Op 2469; 60 A.D.3d 595; 2009 N.Y. App. Div. LEXIS 2510, March 31, 2009, Decided, THE LEXIS PAGINATION OF THIS DOCUMENT IS SUBJECT TO CHANGE PENDING RELEASE OF THE FINAL PUBLISHED VERSION., THIS OPINION IS UNCORRECTED AND SUBJECT TO REVISION BEFORE PUBLICATION IN THE OFFICIAL REPORTS.
The People of the State ...
Judgment, Supreme Court, New York County (Bonnie Wittner, J. ...

5. People v. Jackson, 185, 11990/91, SUPREME COURT OF NEW YORK, APPELLATE DIVISION, FIRST DEPARTMENT, 2009 NY Slip Op 2475; 60 A.D.3d 599; 2009 N.Y. App. Div. LEXIS 2488, March 31, 2009, Decided, March 31, 2009, Entered, THE LEXIS PAGINATION OF THIS DOCUMENT IS SUBJECT TO CHANGE PENDING RELEASE OF THE FINAL PUBLISHED VERSION., THIS OPINION IS UNCORRECTED AND SUBJECT TO REVISION BEFORE PUBLICATION IN THE OFFICIAL REPORTS.
The People of the State ...
Judgment, Supreme Court, New York County (Jeffrey M. Atlas, ...

Continue reading " New York Appellate Criminal Cases Originating from the New York Supreme Court NY County - Lexis/Nexis " »

Posted On: May 22, 2009

ABA Journal Weekly Newsletter

Top Ten Stories of the Week ending May 22, 2009:

Trials & Litigation
‘Reply All’ Was a Mistake, Peeved Partner Tells Quinn Emanuel Associate
May 19, 2009, 03:53 pm CDT

Careers
How a Jones Day Associate Dealt with an ‘Ornery Senior Partner’
May 19, 2009, 06:56 am CDT

Lawyer Pay
Meganumbers’ Pay for Lawyers Is On the Wane, Recruiter Says
May 18, 2009, 08:49 am CDT

Personal Lives
Two Lawyers and a Paralegal Among Esquire’s Best-Dressed Real Men
May 20, 2009, 07:16 am CDT

Women in the Law
Male Judges Advise Women Lawyers to Lose the Distracting ‘Ally McBeal’ Look
May 21, 2009, 08:46 am CDT

Law Practice Management
Billable Hour Hullabaloo is ‘Overblown,’ Drinker Partner Says
May 21, 2009, 02:30 pm CDT


Legal Ethics
NY PI Lawyer Accused of Stealing $650K from Clients’ Cheap Settlements
May 20, 2009, 07:30 am CDT


Law Practice Management
Law Firms Go to Business School
May 20, 2009, 09:51 am CDT


Criminal Justice
‘Extremely Bored’ Juror Walks Out, May Find Jail Time Mind-Numbing, Too
May 20, 2009, 02:56 pm CDT


Associates
Sweeping Sonnenschein Pay Plan Eliminates Lockstep, Offers ‘Flexibility’
May 21, 2009, 04:23 pm CDT


Question of the Week for May 22
What Boundaries Have You Set for Your Own Facebook or Twitter Use?

Posted On: May 22, 2009

The Survey of Library Database Licensing Practices and Related Titles

Published by Research and Markets Ltd. Dublin, Ireland.

The study presents data from 90 libraries - corporate, legal, college, public, state, and non-profit libraries - about their database licensing practices.

More than half of the participating libraries are from the USA, and the rest are from Canada, Australia, the UK, and other countries.

Data is broken out by type and size of library, as well as for overall level of database expenditure.

For more information please click on:
http://www.researchandmarkets.com/product/686dbc/the_survey_of_library_database_licensing_prac

Title Index:

Chapter One: Database Licensing Volume

Chapter Two: Range of Access

Chapter Three: Use of Consortiums

Chapter Four: Content License Pricing

Chapter Five: Disputes and Legal Expenditures for Databases

Chapter Six: Contract Terms

Chapter Seven: Electronic Resources and Interlibrary Loans

Chapter Eight: Use of Open Access Resources

Chapter Nine: Use of Gratis Resources

Chapter ten: Perpetual Access

Chapter Eleven: Paying for Licenses

Chapter Twelve: Course Reserves

Chapter Thirteen: License Renewal Decision-Making Process

Chapter Fourteen: Service Interruption Issues


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Electronic (Single User) : EUR 96
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Posted On: May 22, 2009

Who Were the Most Important Legal Thinkers in American Law in the Past Century?

Brian R. Leiter the John P. Wilson Professor of Law and Director of the Center for Law, Philosophy and Human Values at the University of Chicago has conducted a poll to determine who people think were the most important legal thinkers in american law in the past century. There were 180 votes cast. Professor Leiter has post the top 25 on his blog, Brian Leiter's Law School Reports. When looking at the list don't forget to scroll down and read the comments which are also thought provoking. As one would expect on such a list there are always questions about why so-and-so was or was not included.

Posted On: May 21, 2009

Obama Delivers Critique Defending His Decision to Close Guantanamo

In Congressional Quarterly (CQ) Online News, Keith Perine writes: "...Obama, speaking with the Declaration of Independence, the Constitution and the Bill of Rights as a backdrop, defended his order to close the detainee prison at Guantánamo Bay, Cuba, and outlined several tenets of his own counterterrorism strategy. The president tried to reframe the complex problem of how to treat the Guantánamo detainees as one that requires pragmatism above politics and bipartisan deliberation over partisan attacks.

“As president, I refuse to allow this problem to fester. I refuse to pass it on to somebody else,” Obama said, in one of several thinly veiled digs at the George W. Bush administration. 'It is my responsibility to solve the problem. Our security interests will not permit us to delay. Our courts won’t allow it. And neither should our conscience.' " To see the entire article, including an account of a rebuttal speech by former Vice President Cheney, delivered from the American Enterprise Institute, click here.

Posted On: May 20, 2009

New York Appellate Criminal Cases Originating from the New York Supreme Courrt NY County - Lexis

Update from the Lexis Alert Service,

May 20, 2009:.

1. People v. McDonald, 157, 5982/07, SUPREME COURT OF NEW YORK, APPELLATE DIVISION, FIRST DEPARTMENT, 2009 NY Slip Op 2287; 60 A.D.3d 553; 2009 N.Y. App. Div. LEXIS 2233, March 26, 2009, Decided, THE LEXIS PAGINATION OF THIS DOCUMENT IS SUBJECT TO CHANGE PENDING RELEASE OF THE FINAL PUBLISHED VERSION., THIS OPINION IS UNCORRECTED AND SUBJECT TO REVISION BEFORE PUBLICATION IN THE OFFICIAL REPORTS.
The People of the State ...
Judgment, Supreme Court, New York County (Carol Berkman, J.), ...

2. People v. Batista, 163, 5636/05, SUPREME COURT OF NEW YORK, APPELLATE DIVISION, FIRST DEPARTMENT, 2009 NY Slip Op 2292; 60 A.D.3d 557; 874 N.Y.S.2d 808; 2009 N.Y. App. Div. LEXIS 2229, March 26, 2009, Decided, March 26, 2009, Entered, THE LEXIS PAGINATION OF THIS DOCUMENT IS SUBJECT TO CHANGE PENDING RELEASE OF THE FINAL PUBLISHED VERSION., THIS OPINION IS UNCORRECTED AND SUBJECT TO REVISION BEFORE PUBLICATION IN THE OFFICIAL REPORTS.
The People of the State ...
Judgment, Supreme Court, New York County (Bonnie G. Wittner, ...

3. People v. Ramirez, 168, 6600/03, SUPREME COURT OF NEW YORK, APPELLATE DIVISION, FIRST DEPARTMENT, 2009 NY Slip Op 2296; 60 A.D.3d 560; 875 N.Y.S.2d 482; 2009 N.Y. App. Div. LEXIS 2235, March 26, 2009, Decided, March 26, 2009, Entered, THE LEXIS PAGINATION OF THIS DOCUMENT IS SUBJECT TO CHANGE PENDING RELEASE OF THE FINAL PUBLISHED VERSION., THIS OPINION IS UNCORRECTED AND SUBJECT TO REVISION BEFORE PUBLICATION IN THE OFFICIAL REPORTS.
The People of the State ...
Judgment, Supreme Court, New York County (Edwin Torres, J.), ...

4. People v. Pequero, 143, 1348/06, SUPREME COURT OF NEW YORK, APPELLATE DIVISION, FIRST DEPARTMENT, 2009 NY Slip Op 2242; 60 A.D.3d 542; 2009 N.Y. App. Div. LEXIS 2418, March 24, 2009, Decided, March 24, 2009, Entered, THE LEXIS PAGINATION OF THIS DOCUMENT IS SUBJECT TO CHANGE PENDING RELEASE OF THE FINAL PUBLISHED VERSION., THIS OPINION IS UNCORRECTED AND SUBJECT TO REVISION BEFORE PUBLICATION IN THE OFFICIAL REPORTS.
The People of the State ...
Judgment, Supreme Court, New York County (Bonnie G. Wittner, ...

5. People v. Cantey, 120, 2132/07, SUPREME COURT OF NEW YORK, APPELLATE DIVISION, FIRST DEPARTMENT, 2009 NY Slip Op 2228; 60 A.D.3d 533; 874 N.Y.S.2d 805; 2009 N.Y. App. Div. LEXIS 2259, March 24, 2009, Decided, March 24, 2009, Entered, THE LEXIS PAGINATION OF THIS DOCUMENT IS SUBJECT TO CHANGE PENDING RELEASE OF THE FINAL PUBLISHED VERSION., THIS OPINION IS UNCORRECTED AND SUBJECT TO REVISION BEFORE PUBLICATION IN THE OFFICIAL REPORTS.
The People of the State ...
Judgment, Supreme Court, New York County (Lewis Bart Stone, ...

Continue reading " New York Appellate Criminal Cases Originating from the New York Supreme Courrt NY County - Lexis " »

Posted On: May 19, 2009

Update: OCLC Policy On Record Use

Late in October 2008 rumors were circulating around the lbrary community that OCLC was in the process of updating its Guidelines for the Use and Transfer of OCLC Derived Records These rumors proved true; OCLC published its new policy on Sunday November 2, 2008. The reaction to these changes was sufficiently "swift and harsh" that on November 19, 2008 OCLC removed the original updated version and released a second updated version on November 19. Since that time reaction has continued to be animated, resulting in a continuing series of meetings, proposed changes, commentaries etc.

What is the present status of this discussion? To help answer that question Phyllis Post, who attended the May 2009 OCLC Members Council Meeting where a presentation was made by OCLC, has provided a brief but most helpful update which I received as an e-mail. With the permission of Phyllis I am posting her message below:

Colleagues,

I just got in from the May OCLC Members Council meeting. One of the agenda items was a report from Jennifer Younger who chaired the Review Board of Shared Data Creation & Stewardship. The actual written report from this committee is not quite finished. When complete it will be submitted to the OCLC Board of Trustees in June and hopefully made available to the public before ALA. Meanwhile, Ms. Younger's presentation to Members Council & her presentation slides are now available for viewing here: http://www.oclc.org/us/en/memberscouncil/meetings/2009/default.htm#may

In a nutshell, remember that for now the original 1987 policy remains in effect. The Review Board has concluded that an updated policy is necessary, but not the policy as written late last year. Assuming the Board of Trustees agrees with the Review Board's conclusions, a task force will be convened to reconsider the policy and write a new one that we can all live with. Informally I conclude that OCLC will seek greater member input and community discussion if/when it creates a new policy.


Posted On: May 19, 2009

The Jury Expert May 2009

Volume 21, Issue 3 May 2009.
A publication of the American Society of Trial Consultants.

LEAD ARTICLES:

Narcissism in Gen Y: Is it Increasing or Not? Two opposing perspectives
by Jean Twenge, Keith Campbell, Kali Trzesniewski, Brian Donnellan

Two articles (authored by researchers with opposing perspectives on the prevalence of narcissism in Gen Y) present evidence for their differing positions on narcissism and Generation Y. Three experienced trial consultants offer their reactions on how this controversy should be considered in litigation advocacy. Each set of authors then responds to the trial consultant comments.


Asking the Tough Questions: How to Examine a Child Witness in Sexual Abuse Cases
by Roger Arnold, Renee Fields

How to question child witnesses in sexual abuse cases without re-traumatizing the child or looking like a bully. Matter-of-fact and straightforward strategies and sample questions.


The Key to Voir Dire: Use Your EAR
by Susan Macpherson, Jeremy Rose

A voir dire strategy to help you identify the impact of a juror's prior experiences on your specific case facts and to aid you in making good decisions about striking specific jurors.


Deception: "Do You Swear to Tell the Whole Truth and Nothing But the Truth, So Help You God?"
by Andrew Sheldon

Improve your litigation advocacy by learning (and then practicing) tactics recognized as legitimate detectors of deception.


How Jury Service Makes Us Into Better Citizens
by Eugene P. Deess, John Gastil

An article ten years in the making on how the process of participating in jury deliberation makes us better citizens. With responses by two experienced trial consultants.


Juror Stress: The Hidden Influence of the Jury Experience
by Anne Reed

How jury duty is stressful for jurors and how you (as attorney, judge and courtroom personnel) can identify and decrease that stress.


Jurors and Technology in Trial: What Were Once Vices Are Now Habits
by Ted Brooks

How technology can be used in high profile trials to clearly communicate your message and aid jurors in hearing it.


Redefining Credibility: Turning Expert Witnesses into Teachers
by Richard Gabriel

An experienced trial consultant presents his perspective on the importance of preparing expert witnesses to be better teachers for your jury.


What Preparation Does Your Witness Need?
by David Cannon

An experienced trial consultant looks at how to identify the specific sort of preparation your expert witness needs by assessing witnesses individually and planning tailored interventions.

Click here to see complete issue

Posted On: May 19, 2009

Pruning Prisons: How Cutting Corrections Can Save Money and Protect Public Safety

The Justice Policy Institute, an advocacy organization based in Washington DC, has just issued a report, Pruning Prisons: How Cutting Corrections Can Save Money and Protect Public Safety, which argues that states can improve public safety and save millions of dollars by investing in community based alternatives to incarceration. Quoting from the Introduction: "as the United States grapples with harsh economic realities, states and localities continue to cut budgets, shed jobs, and trim institutions that are not cost effective. Among the least cost effective are prisons and jail systems. Bulding on these observations the remainder of the of the report outlines a number of findings and recommendations supported by charts and other data .

More from the Introduction:

The United States’ prison system continues to grow every year. Over 2.3 million
people are incarcerated in U.S. prisons and jails. As state prisons hold nearly 60
percent of the people incarcerated, yearly increases in the prison system are most
keenly felt by states.

The United States spends billions of dollars on incarceration each year. Over the last
10 years the average yearly increase of state spending on corrections has been
approximately 3 percent. If such trends continue, states would be expected to spend
more than $50 billion on corrections per year by 2010.2

Increasing the availability of parole could save government agencies millions of dollars.
State and federal agencies would save roughly $3 billion dollars per year if they reduced
the prison population by 10 percent by moving individuals into the parole system.
Improving parole services and supports could save states millions of dollars.
Approximately 26 percent of people on parole in 2007 returned to prison for a
technical violation. By shifting the modality of supervision to one of support and
service, states could send fewer people back to prison for technical violations. If
states returned only half as many people to prison for technical violations, the justice
system could save approximately $1.1 billion.

Substance abuse treatment provided in the community is more cost-effective than
imprisonment. Substance-involved people have come to compose a large portion of
the prison population and substance use may play a role in the commission of certain
crimes. Approximately 16 percent of people in state prison and 18 percent of people
in federal prison reported committing their crimes to obtain money for drugs.
Treatment delivered in the community is one of the most cost-effective ways to
prevent such crimes and costs approximately $20,000 less than incarceration per
person per year.

To see the entire report click on the link below:

Complete Report: Pruning Prisons...

Posted On: May 18, 2009

Safeguarding Library Collections at the Dawn of the 21st Century

In a recent e-mail Robert Richards, a Law Librarian and Legal Information Consultant from Philadelphia, mentions a recent Associatiion of Research Libraries (ARL) preservation report, "Safeguarding Collections at the Dawn of the 21st Century: Describing Roles & Measuring Contemporary Preservation Activities in ARL Libraries," http://www.arl.org/bm~doc/safeguarding-collections.pdf .. More details are at http://www.arl.org/news/pr/preservation-14may09.shtml The report is organized around three main sections: Preservation Functions; Networked Digital Environment; and Collaboration. Within each section, background and analysis are provided and recommendations offered for consideration by ARL

Posted On: May 18, 2009

CLLB Information Security Newsletter

Volume 2 Number 5 May 2009.

Rogue (Fake) Anti-Virus Software: How to Spot It & Avoid It!*

From the Desk of David Badertscher


Your PC May Be Infected! Click here to clean it!

Have you seen this advertisement or similar pop-up messages? A free PC scan or an offer to clean yur computer of supposedly infected files are often attempts by malevolent persons or organizations to install malicious software (malware) such as a Trojan horse, keylogger, or spyware Such software is referred to as rogue (fake) anti-virus malware.

How can my system get infected?

The primary way rogue anti-virus software gets on your system is the result of you clicking on a malicious link in an advertisement or similar pop-up message. The wording contained in the advertisement is usually something alarming, designed to get your attention and attempt to convince to you scan your PC or clean it immediately with the offered tool. The names of the fake programs sound legitimate, and often, in a further attempt to make the malware appear legitimate, the programs may prompt you to pay for an annual subscription to the service.

Any kind of website could host ads for rogue anti-virus: news sites, sports pages, and social networking sites as well as “riskier” sites such as hacker blogs. Some varieties of rogue anti-virus programs will also get installed on your machine just by you visiting a website with a malicious ad or code, and you might never know you’ve been impacted.

Won’t my valid anti-virus and anti-spyware program protect my computer?

Though good anti-virus and anti-spyware programs will protect against many threats, they cannot protect against all malware threats, especially the newest ones. There are millions of different versions of malware, with hundreds more being created and used every day. It may take a day, a week, or even longer for anti-virus companies to develop and distribute an update to detect and clean the newest malware.

What can rogue anti-virus software do to my computer?

Just about anything, especially if you are using administrative-level access when using your computer. Rogue anti-virus software might perform many activities, including installing files to monitor your computer use or steal credentials, installing backdoor programs, or adding your computer to a botnet. The malware might even use your computer as a vehicle for compromising other systems in your home or workplace network.

Rogue anti-virus software can also modify systems files and registry entries so that even when you clean off some infected files or registry keys others might remain, or even allow the infections to be restored and active again after your system is rebooted. For example, one recent rogue anti-virus program reportedly installed several malicious Trojan files, and also made over two-dozen different changes to ensure that the malware stayed on the system and stayed running. This type of malware also often blocks access to valid security sites (anti-virus and anti-spyware companies, and operating system and application update sites) so that you won’t be able to patch or clean your system by visiting those valid sites.

What can I do to protect my computer?

1. Don’t click on pop-up ads that advertise anti-virus or anti-spyware programs. Even though pop-up ads are used for valid advertising they can also be used for malicious purposes, like getting you to install fake security programs. If you are interested in a security product, search for it and visit its homepage, don’t get to it through a pop-up ad.

2. Use and regularly update firewalls, anti-virus, and anti-spyware programs. It is very important to use and keep these programs updated regularly so they can protect your computer against the most recent threats. If possible, update them automatically and at least daily.

3. Properly configure and patch operating systems, browsers, and other software programs. Keep your system and programs updated and patched so that your computer will not be exposed to known vulnerabilities and attacks.

4. Turn off ActiveX and Scripting, or prompt for their use. ActiveX controls are small programs or animations that are downloaded or embedded in web pages, which will typically enhance functionality and user experience. Many types of malware can infect your computer when you simply visit a compromised site and allow anything to run from the website, such as ads. Turning off ActiveX and Scripting can help protect your computer if you inadvertently browse to or are unwillingly redirected to a malicious site. (You can limit the functionality of your Internet browser through its configuration choices, but be sure to look for a guide if you are unfamiliar with how to limit scripting and active content—see below for resources.)

5. Keep backups of important files. Sometimes cleaning infections can be very easy; sometimes they can be very difficult. You may find that an infection has affected your computer so much that the operating system and applications need to be reinstalled. In cases like this it is best to have your important data backed up already so you can restore your system without fear of losing your data.

6. Regularly scan and clean your computer. If your organization already has configured this on your computer, do not disable it. If you need to scan your computer yourself, schedule regular scans in your programs. Also, several trusted anti-virus and anti-spyware vendors offer free scans and cleaning. Access these types of services from reputable companies and from their webpage, not from an unexpected pop-up.

For more information, please visit:

Partial Listing of Rogue Security Software: http://en.wikipedia.org/wiki/Rogue_software

Free Security Checks: www.staysafeonline.info/content/free-security-check-ups

Pop-ups: www.msisac.org/awareness/news/2008-12.cfm

Web Browser Attacks: www.msisac.org/awareness/news/2008-07.cfm

Malware: www.onguardonline.gov/topics/malware.aspx

Spyware: www.onguardonline.gov/topics/spyware.aspx

Free Check for File Infection: www.virustotal.com/


*The above comments are based on information tips provided by the Multi-State Information and Analysis Center (MS-ISAC). To learn more about MS-ISAC go to http://www.msisac.org/

OTHER NEWS:

U.S. Department of Defense Seeks E-Mail Security for Grid Network.
by Doug Beizer
Federal Computer Week May 15, 2009.

System would scan incoming e-mail messages

The Defense Department needs a security system to scan e-mail on its Global Information Grid (GIG) network, and it has asked industry to submit information on such a system, according to an announcement on the Federal Business Opportunities Web site.

http://fcw.com/articles/2009/05/15/dod-email-security.aspx?s=security_180509

Warrant Required to Use GPS to Track Suspects
New York Law Journal

A divided N.Y. Court of Appeals ordered a new trial for a man convicted of burglary in part with evidence from a GPS device. Chief Judge Jonathan Lippman wrote for the majority that "this dragnet use of the technology at the sole discretion of law enforcement authorities to pry into the details of people's daily lives is not consistent with the values at the core of our state Constitution's prohibition against unreasonable searches."


Posted On: May 18, 2009

Employee Web Use: What is OK and What is Not

A White Paper from MessageLabs.

Although this white paper was written primarily for IT managers we think it has considerable broader applicability and are therefore posting it here.

Summary:
Where do you draw the line when it comes to employee Web use? Is it okay to send the occasional personal e-mail at work? What about a little Internet shopping or spending sometime on social networking sites, playing online games, downloading pirated movies and music, gambling or downloading porn? The Internet has created new opportunities for mischief and new challenges for IT managers.

Every company is unique and may have different ideas as to what is appropriate when it comes to employee Internet usage. There is a balance between monitoring and blocking Web use in the workplace. IT Managers need to determine the best way to deal with employee internet access, while keeping the overall good of the business a priority.

To See Complete White Paper Click Here

Posted On: May 18, 2009

Guide to Lawyers Representing Religious Organizations

A 2009 publication of the American Bar Association.

" A practical reference for any attorney who is asked to represent a religious organization."

Guide to Representing Religious Organizations

By Editors: Lisa A. Runquist and Jeannie Carmedelle Frey; Managing Editor: Patricia A. Tauchert

--------------------------------------------------------------------------------

The Guide to Representing Religious Organizations addresses critical issues and risk factors of concern for religious organizations ranging from formation and governance, to taxes, fundraising and employment issues, and property rights. It outlines the general requirements of applicable law and highlights areas in which religious organizations receive special consideration under the law. The Guide's topical discussions are well organized for ease of reference. This book will assist attorneys who are asked to represent religious organizations as well as provide general information for religious leaders faced with a legal challenge.

Product Details:

February 2009
7 X 10, 250 Pages, Paperback
Product Code: 5070530

Regular Price: $89.95
Section Member Price: $69.95

Posted On: May 18, 2009

SciTech e-Merging News - Highlights

Volme 1 Issue 4 Spring 2009.

A quarterly newsletter of the American Bar Association Section on Science and Technology.

CHAIR'S WELCOME by RUTH HILL BRO

Come Together, Right Now

For many of us, it’s been a long, cold lonely winter as we’ve tried to find our way through a seemingly endless economic blizzard. But the summer is finally coming and with it the ABA Annual Meeting in Chicago, July 30-August 2, 2009. Whether you’re looking for networking opportunities, fabulous programs, CLE credit, other ways to enhance your practice and further your career, or simply fun in the sun, you’ll find it at the ABA Annual Meetinng.
read more...


Practice Edge

ABA's Response to Recession

The ABA's Economic Recovery Resource website responds to the challenging economic times we face. ABA members may access free content, resources, and benefits on the Economic Recovery Resources portal at http://new.abanet.org/economicrecovery. The ABA also offers 4 free recession recovery programs focused on practice and career development. This program includes FREE CLE.

BioBlurb

The Biotechnology Law Committee's weekly update publishes a roundup of hyperlinks to current legal, business, regulatory, and scientific developments in the industry.


Clinical Trials and the Financial Markets

Since 1980, U.S. policy has encouraged scientists to collaborate with commercial enterprises, particularly in the biomedical sector, in an effort to drive innovation. Generally speaking, there is consensus that entrepreneurial relationships with pharmaceutical and biotechnology companies have produced significant benefits for science and the economy.


E-Discovery and Digital Evidence Case Digest

Five decisions for this week’s digest. The first, a duty to preserve decision. The second decision reminds us that eDiscovery abuse sanctions can survive summary judgment, and is followed by two authentication cases (one of which is a criminal matter, but each of which pays some degree of homage to Magistrate Judge Grimm’s decision in Lorraine v Markel American Ins.), and a decision discussing the standards of a federal district court’s review of a U.S. Magistrate’s Report and Recommendation.

Free Cleantech Brown Bag

The Section's new Cleantech and Climate Change Committee hosts free educational programs to learn about hot clean technology and the law topics.


How to Get a Job and Grow Your Practice

The SciTech Edge: Insights from ABA SciTech Section Leaders: for law students and young lawyers...


ABA Member Advantage

ABA Member Advantage company discounts make it easy and affordable to streamline tasks and communications. ABA Member Advantage companies such as Starwood Hotels, Hertz and Bank of America are ready to put you on the road to a happy place.


Proposed Patent Case Legislation

The Section of Intellectual Property Law sent the attached letter and supporting documents to the House Judiciary Committee in support of the enactment of legislation to establish a pilot program to support enhancement of expertise in patent cases among U.S. District Court judges.
read more...

Posted On: May 18, 2009

Findlaw Case Summaries: Constitutional Law

To view the full-text of cases you must sign in to FindLaw.com. All summaries are produced by Findlaw.

May 11-15, 2009.

U.S. 4th Circuit Court of Appeals, May 12, 2009
Midi v. Holder, No. 08-1367
Petitioner's petition for review of the BIA's order removing her from the U.S. is denied, where: 1) the Child Status Protection Act (CSPA) does not apply to immigrants seeking relief pursuant to the Haitian Refugee Immigration Fairness Act; and 2) the BIA's construction of the CSPA did not violate the Equal Protection Clause.

U.S. 4th Circuit Court of Appeals, May 13, 2009
Iota Xi Chapter of Sigma Chi Fraternity v. Patterson, No. 08-1417
In an action by a fraternity at a public university claiming that disciplinary action against it violated the First Amendment, summary judgment for Defendants is affirmed, where: 1) the university did not deprive Plaintiff's members of associational rights; and 2) the sanctions imposed on the chapter were reasonable. ..

U.S. 8th Circuit Court of Appeals, May 13, 2009
US v. Tom, No. 08-2345
District court judgment granting defendant's motion to dismiss petition having have him civilly committed as a sexually dangerous person is reversed where: 1) the court erred in finding the 18 U.S.C. sec. 4248 (the Adam Walsh Act) was an unconstitutional exercise of Congress's powers under the Commerce Clause, as Congress is empowered by the Commerce Clause to criminalize and punish the conduct of which defendant is guilty and has the ancillary authority under the Necessary and Proper Clause to provide for defendant's civil commitment; and 2) 18 U.S.C. sec. 4248 does not upset the delicate federal state balance mandated by the Constitution.

Continue reading " Findlaw Case Summaries: Constitutional Law " »

Posted On: May 18, 2009

Findlaw Case Summaries: Criminal Law and Procedure

To view the full-text of cases you must sign in to FindLaw.com. All summaries are produced by Findlaw.

May 11-15, 2009.

U.S. 1st Circuit Court of Appeals, May 11, 2009
Pina v. Maloney , No. 07-1267
Denial of petition for habeas relief is affirmed where although plaintiff did not procedurally default his ineffective assistance of counsel claim, the claim still fails on the merits as counsel's decision to pursue a defense of misidentification rather than an alibi defense was a reasonable, tactical decision. ..

U.S. 1st Circuit Court of Appeals, May 12, 2009
US v. Del Valle , No. 08-1234
District court's denial of defendant's motion for a new trial is affirmed where: 1) the defendant did not meet his burden of proving that the newly discovered evidence met the requirements for warranting a new trial; and 2) the court properly rejected defendant's claim that the government violated Brady by failing to disclose evidence, as defendant cannot show a reasonable probability that this evidence would have changed the outcome of the trial.

U.S. 1st Circuit Court of Appeals, May 15, 2009
US v. Melendez-Rivas, No. 07-1962
Conviction for conspiracy and aiding and abetting a motor vehicle hijacking with intent to cause death is vacated and remanded where: 1) the district court properly denied defendant's motion for aquittal as the evidence was sufficient to support his conviction; and 2) the district court's intervention in questioning a defense witness went beyond the appropriate limits and elicited inadmissible, prejudicial testimony that interfered with defendant's fair trial rights

U.S. 2nd Circuit Court of Appeals, May 13, 2009
Brisco v. Ercole , No. 05-4339
Grant of petition for habeas relief is reversed where: 1) plaintiff failed to establish that the state court's decision was an unreasonable application of clearly established federal law, as the challenged showup procedure was not unnecessarily suggestive; and 2) the showup identification was independently reliable. .

U.S. 2nd Circuit Court of Appeals, May 14, 2009
US v. Tureseo, No. 07-2933
Conviction and sentence for reentering the U.S. after deportation, making a false claim of U.S. citizenship, and aggravated identity theft is affirmed in part and vacated in part where: 1) the district court erred when it instructed the jury in defendant's absence, but the error did not cause prejudice and was harmless beyond a reasonable doubt; but 2) the court made a constitutional error that was not harmless beyond a reasonable doubt when it omitted an essential element of the offense in its jury instruction on the aggravated identity theft charge

Continue reading " Findlaw Case Summaries: Criminal Law and Procedure " »

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Posted On: May 18, 2009

Findlaw Case Summaries: Second Circuit U.S. Court of Appeals

To view the full-text of cases you must sign in to FindLaw.com. All summaries are produced by Findlaw.

May 14, 2009.

CRIMINAL LAW & PROCEDURE
US v. Ness, No. 05-440
Conviction for conspiring to commit three money laundering offenses is reversed where: 1) a reasonable jury could not find beyond a reasonable doubt that the purpose of defendant's transportation of narcotics proceeds was to conceal the nature, location, or source of the narcotics proceeds; and 2) the government failed to prove that defendant violated 18 U.S.C. sec. 1957(a), as it did not present sufficient evidence that a financial institution was involved. .

IMMIGRATION LAW
Mendez v. Holder , No. 06-0032
Petition for review of the Board of Immigration Appeals' decision affirming denial of cancellation of removal is granted and remanded where an error of law occurred in the Board's decision, as facts important to the determination of exceptional and extremely unusual hardship were totally overlooked and others were seriously mischaracterized.


CRIMINAL LAW & PROCEDURE, HABEAS CORPUS
Brisco v. Ercole , No. 05-4339
Grant of petition for habeas relief is reversed where: 1) plaintiff failed to establish that the state court's decision was an unreasonable application of clearly established federal law, as the challenged showup procedure was not unnecessarily suggestive; and 2) the showup identification was independently reliable.

ERISA, LABOR & EMPLOYMENT LAW
Rahm v. Halpin , No. 07-3206
In a dispute involving an employer's contributions to an employee benefit plan, district court judgment is affirmed where defendant's failure to make the required contributions to the plan did not constitute a breach of a fiduciary duty, as defendant's unpaid contributions were not assets and thus defendant was not a fiduciary over the funds and not personally liable for any loss resulting from his conduct.

CRIMINAL LAW & PROCEDURE, IMMIGRATION LAW
US v. Tureseo, No. 07-2933
Conviction and sentence for reentering the U.S. after deportation, making a false claim of U.S. citizenship, and aggravated identity theft is affirmed in part and vacated in part where: 1) the district court erred when it instructed the jury in defendant's absence, but the error did not cause prejudice and was harmless beyond a reasonable doubt; but 2) the court made a constitutional error that was not harmless beyond a reasonable doubt when it omitted an essential element of the offense in its jury instruction on the aggravated identity theft charge.

Posted On: May 18, 2009

New York Appellate Criminal Cases Originating from the New York Supreme Court NY County - Lexis

Update from the Lexis Alert Service,

May 18, 2009.

1. People v. Smith, 558, 2680/07, SUPREME COURT OF NEW YORK, APPELLATE DIVISION, FIRST DEPARTMENT, 2009 NY Slip Op 3839; 2009 N.Y. App. Div. LEXIS 3674, May 14, 2009, Decided, THE LEXIS PAGINATION OF THIS DOCUMENT IS SUBJECT TO CHANGE PENDING RELEASE OF THE FINAL PUBLISHED VERSION., THIS OPINION IS UNCORRECTED AND SUBJECT TO REVISION BEFORE PUBLICATION IN THE OFFICIAL REPORTS.
The People of the State ...
Judgment, Supreme Court, New York County (Richard D. Carruthers, ...

2. People v. Garcia, 563, 2994/06, SUPREME COURT OF NEW YORK, APPELLATE DIVISION, FIRST DEPARTMENT, 2009 NY Slip Op 3843; 2009 N.Y. App. Div. LEXIS 3675, May 14, 2009, Decided, May 14, 2009, Entered, THE LEXIS PAGINATION OF THIS DOCUMENT IS SUBJECT TO CHANGE PENDING RELEASE OF THE FINAL PUBLISHED VERSION., THIS OPINION IS UNCORRECTED AND SUBJECT TO REVISION BEFORE PUBLICATION IN THE OFFICIAL REPORTS.
The People of the State ...
Judgment, Supreme Court, New York County (Bonnie G. Wittner, ...

3. People v. Huddleston, 391, 659/07, SUPREME COURT OF NEW YORK, APPELLATE DIVISION, FIRST DEPARTMENT, 2009 NY Slip Op 3829; 2009 N.Y. App. Div. LEXIS 3680, May 14, 2009, Decided, May 14, 2009, Entered, THE LEXIS PAGINATION OF THIS DOCUMENT IS SUBJECT TO CHANGE PENDING RELEASE OF THE FINAL PUBLISHED VERSION., THIS OPINION IS UNCORRECTED AND SUBJECT TO REVISION BEFORE PUBLICATION IN THE OFFICIAL REPORTS.
The People of the State ...
Judgment, Supreme Court, New York County, (Robert M. Stolz, ...

4. People v. Ai Jiang, 570, 1495/05, SUPREME COURT OF NEW YORK, APPELLATE DIVISION, FIRST DEPARTMENT, 2009 NY Slip Op 3848; 2009 N.Y. App. Div. LEXIS 3686, May 14, 2009, Decided, May 14, 2009, Entered, THE LEXIS PAGINATION OF THIS DOCUMENT IS SUBJECT TO CHANGE PENDING RELEASE OF THE FINAL PUBLISHED VERSION., THIS OPINION IS UNCORRECTED AND SUBJECT TO REVISION BEFORE PUBLICATION IN THE OFFICIAL REPORTS.
The People of the State ...
Judgment, Supreme Court, New York County (Rena K. Uviller, ...

5. People v. Tavarez, 553, 6247/05, SUPREME COURT OF NEW YORK, APPELLATE DIVISION, FIRST DEPARTMENT, 2009 NY Slip Op 3834; 2009 N.Y. App. Div. LEXIS 3693, May 14, 2009, Decided, May 14, 2009, Entered, THE LEXIS PAGINATION OF THIS DOCUMENT IS SUBJECT TO CHANGE PENDING RELEASE OF THE FINAL PUBLISHED VERSION., THIS OPINION IS UNCORRECTED AND SUBJECT TO REVISION BEFORE PUBLICATION IN THE OFFICIAL REPORTS.
The People of the State ...
Judgment, Supreme Court, New York County (Laura A. Ward, ...

6. People v. Brooks, 567, 5778/06, SUPREME COURT OF NEW YORK, APPELLATE DIVISION, FIRST DEPARTMENT, 2009 NY Slip Op 3846; 2009 N.Y. App. Div. LEXIS 3696, May 14, 2009, Decided, May 14, 2009, Entered, THE LEXIS PAGINATION OF THIS DOCUMENT IS SUBJECT TO CHANGE PENDING RELEASE OF THE FINAL PUBLISHED VERSION., THIS OPINION IS UNCORRECTED AND SUBJECT TO REVISION BEFORE PUBLICATION IN THE OFFICIAL REPORTS.
The People of the State ...
Judgment, Supreme Court, New York County (Lewis Bart Stone, ..

Posted On: May 15, 2009

List: Law Library Blogs

We are delighted to see the updated List of Law Library Blogs. It was originally compled by Bonnie Shucha, University of Wisconsin Law School, and has been updated by Michael Robak, University of Illinios College of Law. When viewing this list it is important to note that it contains only law library blogs; all others have been removed. Many thanks to Bonnie for her pioneering efforts in creating the original list and to Michael for maintaining it at a high standard.

Posted On: May 15, 2009

Meghan McCain: Why I Love Guns

Meghan McCain, John McCain's daughter, writing in the Daily Beast discusses her love of guns. Here are some excerpts from her posting.

According to Meghan: "...I find it empowering, especially as a woman, to fire off a few rounds....Lets get something straight: Individual responsibility and personal liberty are inherent Republican philosophies. And nothing could be more essential in protecting those ideals than the Bill of Rights. Its no accident the second of the first 10 amendments protects the right to bear armsand has done so for more than 200 years. Obviously, I realize the Second Amendment has been heavily scrutinized. Its simplicity is sometimes mistaken for ambiguity. But it stands as a fundamental right, ensures the conditions for a 'free state,' and rewards responsible, trained citizens with the freedom to protect themselves. Thats what the NRA is truly about: providing Americans who choose to take advantage of their Second Amendment rights the appreciation for the serious responsibilities and safety precautions necessary to ensure gun owners safety and the safety of others."

Although some of us don't especially love guns or agree with her interpretation of the Second Amendment, Meghan does have a right to express her opinion. See her entire posting at http://www.thedailybeast.com/blogs-and-stories/2009-05-14/trigger-happy/ and don't forget to read the comments.

Posted On: May 15, 2009

Announcement and Survey: AALL Publication on Legal Research for Non-Lawyers

The American Association of Law Libraries (AALL) Legal Information Services to the Public SIS has updated its publication, "How to Research a Legal Problem: A Guide for Non-Lawyers." The text of the revised version, by LISP members Lee Warthen and Angus Nesbit, can be viewed here:
http://www.aallnet.org/sis/lisp/research.htm

In the past this Guide has been published by AALL as a pamphlet and sold through AALL's publications program for a modest fee. AALL wishes to evaluate whether publishing and selling the Guide as a print pamphlet, while also providing free digital access, remains viable, or whether a digital-only publication is more suitable. We've created a quick five-question survey to find out how your library might use the Guide and how you would prefer to receive it.

Please take a minute or two to complete the survey. Your feedback will be invaluable in designing the new Guide.

http://www.surveymonkey.com/s.aspx?sm=LL_2btbOgadcVie7fo4_2bPnLw_3d_3d

The survey will be kept open until May 22.

Posted On: May 15, 2009

ABA Journal Weekly Newsletter

Top Ten Stories of the Week ending May 15, 2009:

Law Firms
Did 'Financial Insanity' and 'Greedy Lawyers' Doom WolfBlock?
May 14, 2009, 09:07 am CDT

Law Firms
Some 2010 Summer Associate Programs Are Being Axed or Scaled Back
May 13, 2009, 08:40 am CDT

Plus:

Some Deferred Start Dates May Become Withdrawn Job Offers

DLA Piper Axes 124 in UK Offices

Fish & Richardson Lays Off 120

Hunton & Williams Lays Off 23 Lawyers and 64 Staffers

Law Firms
Firm Named for Bill Gates' Father Is Axed as Microsoft Preferred Provider
May 14, 2009, 06:33 am CDT

Law Schools
US News 'Investigating' Brooklyn Law School's Ranking
May 11, 2009, 10:00 am CDT

Plus:

Website Uses Student E-Mail Spam to Rank Top Party Law Schools

U.S. Supreme Court
Justice Scalia Tells Law Student Why She Probably Won't Be His Law Clerk
May 12, 2009, 07:20 am CDT

Financial Crisis
Judge Posner Blames 'People Like Me' for the Economic Crisis
May 13, 2009, 11:47 am CDT

Law Practice Management
Disappointments Preceded Suicides by Lawyers at Three Major Law Firms
May 11, 2009, 07:27 am CDT

Women in the Law
Michelle Obama: Why I Left BigLaw
May 12, 2009, 06:40 pm CDT

Careers
What Gender Gap? Many Women Lawyers w/ Kids Do as Well as Men, Researcher Says
May 12, 2009, 07:14 pm CDT

Judiciary
O'Connor on Judicial Elections: 'They're Awful. I Hate Them'
May 9, 2009, 08:09 am CDT

Posted On: May 15, 2009

ABA Journal Weekly Newsletter

Top Ten Stories of the Week ending May 8, 2009:

Law Practice Management
Downturn's Losers: BigLaw, 'Entitled' Associates, Top Schools
May 7, 2009, 10:12 am CDT

Law Schools
Blog Questions 'Rankings Malpractice' by Law Schools
May 4, 2009, 06:49 am CDT

Legal Ethics
Attorney Can't Ask 3rd Party to 'Friend' Witness on Facebook, Opinion Says
May 5, 2009, 07:38 pm CDT

In-House Counsel
Study Predicts 5 Percent Growth in Legal Spending by Fortune 1000
May 7, 2009, 08:55 am CDT

Civil Procedure
Judge Blasts Law Firm for 'Grisly Game of Asbestos Litigation'
May 7, 2009, 06:24 am CDT

Law Firms
Business-Building Struggles for Lawyer Who Died in Apparent Suicide
May 4, 2009, 06:17 am CDT

U.S. Supreme Court
Odd Details of Souter's Life Chronicled, Including Apple Appetite
May 4, 2009, 08:55 am CDT

Criminal Justice
Arrested at 13, Freed 16 Years Later After Witnesses Recant
May 4, 2009, 08:59 pm CDT

Attorney Fees
Study Claims Bankruptcy Lawyers Are Billing Illegally
May 7, 2009, 08:00 am CDT

Legal Ethics
Lawyers Say Embarrassing Voice Mail of Marvell GC May Have Been Edited
May 7, 2009, 07:05 am CDT

Posted On: May 14, 2009

Report of New York State Inspector General Investigating Allegations Related to the NY Commission on Public Integrity

A Report of the New York State Inspector General, Joseph Fisch, released on May 13, 2009 concluded that Herbert Titelbaum Executive Director of the New York State Council on Public Integrity and a close friend exchanged at least 165 phone calls and held regular dinners over a five month period in 2007, during which Mr. Titelbaum disclosed the progress and details of the inquiry conducted by the panel, the Commission on Public Integrity, into the handling by former governor Spitzer's administration of the travel records of longtime Senate majority leader Joseph L. Bruno. Since the Report was released there have been calls for the resignation of Mr. Titelbaum

Below are links to two news articles which discuss the Report and its implications, followed by links to the Executive Summary and Findings of the Report, ending with a link to the complete Report itself:

New York Times Article May 13, 2009 "Paterson Asks Ethics Panel to Quit by Danny Hakim.

New York Law Journal article: "Inspector General, Governor Call for Integrity Head to Resign" by Joel Stashenko May 14, 2009.

Executive Summary and Findings of Report of State of New York Office of the Inspector General Regarding the Investigation of Certain Allegations Related to the New York State Office of Public Integrity: May 13, 2009.

Report of State of New York Office of the Inspector General Regarding the Investigation of Certain Allegations Related to the New York State Office of Public Integrity: May 13, 2009. Full Report:

Posted On: May 13, 2009

FBI Releases Preliminary Statistics for Law Enforcement Officers Killed in 2008

In its preliminary statistics released on May 11, 2009 the FBI reports that 41 of our nation's law enforcement officers were feloniously killed in the line of duty in 2008. All but five were killed with firearms. The number of officers feloniously killed was 17 fewer than in 2007. A more detailed explanation of these numbers is provided in the Press Release announcing the release of these statistics:

FBI Press Release May 11, 2007

Posted On: May 13, 2009

Champagne Corks, Mickey Mantle & Muskets: Trials and Tribulations of Law Practice

This enertaining article, Champagne Corks, Mickey Mantle & Muskets, is a May 10, 2009 posting by Adrian M. Baron on the Nutmeg Lawer blawg which is described as a blawg "...developed to share tips on law firm marketing, legal practice, office management and anything else that might pique your interest about the trials and tribulations of law practice." Adrian Barron's posting did certainly "pique" our interest and we thought you would enjoy it also.

Posted On: May 13, 2009

ABA Teleconference; How to Sell Yourself: Developing the Perfect Pitch

Tuesday May 19, 2009.

This teleconference is part of the ABA Recession Recovery Teleconference Series. Faculty will provide advice on how to strke just the right note on paper and in person to land a job. Free to ABA members.

For more information click here.

Posted On: May 13, 2009

Findlaw Case Summaries: Second Circuit U.S. Court of Appeals

May 12-13, 2009

To view the full-text of cases you must sign in to FindLaw.com. All summaries are produced by Findlaw.

CIVIL PROCEDURE
Yakin v. Tyler Hill Corp. , No. 07-5300
District court order enforcing a forum selection clause and remanding the case to state court is affirmed where there is no ambiguity in the forum selection clause, as a reasonable person reviewing the clause would conclude the parties intended the litigation take place in an appropriate venue in Nassau County, where there is a state court but no district court.

LABOR & EMPLOYMENT LAW
NLRB v. Special Touch Home Care Serv., Inc., No. 07-5422
In an unfair labor practices action, NLRB order is enforced in part, denied in part, and modified in part where: 1) the Board properly found that employee Miller was properly discharged; 2) the Board erred in not considering the intersection of the plant rule doctrine and National Labor Relations Act sec. 8(g) in connection with the reinstatement of strikers, and on remand the Board should determine the relationship between these two rules; and 3) two employees of defendant unlawfully interrogated aides regarding their support for the union in violation of the Act

CRIMINAL LAW & PROCEDURE, HABEAS CORPUS
Brisco v. Ercole , No. 05-4339
Grant of petition for habeas relief is reversed where: 1) plaintiff failed to establish that the state court's decision was an unreasonable application of clearly established federal law, as the challenged showup procedure was not unnecessarily suggestive; and 2) the showup identification was independently reliable.


Posted On: May 13, 2009

Findlaw Case Summaries: New York Court of Appeals

May 12, 2009

To view the full-text of cases you must sign in to FindLaw.com. All summaries are produced by Findlaw.

CONSTITUTIONAL LAW, GOVERNMENT BENEFITS, HEALTH LAW
Khrapunskiy v. Doar, No. 52
In an action by disabled legal resident aliens who were ineligible for SSI payments due to their non-citizenship, judgment for Plaintiffs is reversed, where Article XVII of the New York Constitution does not compel the state to assume the federal government's obligation when a disabled person becomes ineligible for SSI benefits.

CONSTRUCTION, INJURY AND TORT LAW, LABOR & EMPLOYMENT LAW, PRODUCT LIABILITY
Misicki v. Caradonna, No. 68
In an action under N.Y. Labor Law section 241(6) for injuries Plaintiff construction worker suffered while working, summary judgment for Defendant is reversed, where Plaintiff adequately alleged that the tool his supervisor directed him to use lacked a proper handle and that Defendant had actual notice of the defect.

CRIMINAL LAW & PROCEDURE
People v. Weaver, No. 53
Defendant's burglary conviction is reversed, where the police violated Article I, Section 12 of the New York Constitution by conducting a warrantless surveillance of Defendant's vehicle for several months, because Defendant had a reasonable expectation of privacy in the whereabouts of his vehicle.

DEBT COLLECTION, PROPERTY LAW & REAL ESTATE
Gletzer v. Harris, No. 66
In an action by mortgage lenders seeking a determination of superiority of their liens, judgment for Plaintiff is affirmed, where a renewal lien secured pursuant to NY CPLR section 5014 for a second 10-year period cannot take effect nunc pro tunc on the expiration date of the original lien, cutting off the property interests of intervening mortgagees.

Posted On: May 12, 2009

Findlaw Case Summaries: Constitutional Law

May 4 -8, 2009

To view the full-text of cases you must sign in to FindLaw.com. All summaries are produced by Findlaw.

U.S. Fed. Circuit Court of Appeals, May 05, 2009
Ellamae Phillips Co. v. US , No. 08-5042
In a takings action, district court grant of summary judgment against the government is vacated and remanded where court of Federal Claims improperly applied the present court's prior decision in Hash v. US in ruling that a taking had occurred, as Hash did not decide the scope of the easement granted under the 1875 Act or whether any residual easement has been abandoned in this case.

Supreme Court of California, May 07, 2009
People v. Burgener, No. S116882
Trial court judgment sentencing defendant to death is vacated where the court erred in granting defendant's motion to represent himself, as the record is insufficient to establish that defendant's waiver of his Sixth Amendment right to the assistance of counsel was knowing and intelligent. The matter is remanded for reconsideration of defendant's request to represent himself and the automatic application for modification of the penalty death verdict.

Posted On: May 12, 2009

Findlaw Case Summaries: Criminal Law and Procedure

May 4 -8, 2009

To view the full-text of cases you must sign in to FindLaw.com. All summaries are produced by Findlaw.


U.S. Supreme Court, May 04, 2009
Flores-Figueroa v. US, No. 08-108
Defendant's aggravated identity theft conviction is reversed where 18 U.S.C. section 1028A(a)(1) requires the government to show that a defendant knew that the means of identification at issue belonged to another person.

U.S. 1st Circuit Court of Appeals, May 04, 2009
Rice v. Hall, No. 07-2660
In conviction for murder, denial of petition for habeas relief is affirmed where plaintiff failed to show: 1) counsel's performance was unreasonable or incompetent; and 2) any error that prejudiced him such that the outcome would likely have been different but for the error.

U.S. 1st Circuit Court of Appeals, May 05, 2009
US v. Angulo-Hernández, No. 07-2428
Conviction and sentence for drug crimes is affirmed where: 1) the evidence presented was sufficient to support each of the defendants' convictions; 2) any possible error in the admission of lay testimony was harmless; 3) district court's participation in trial did not constitute prejudicial error; 4) the defendants' jurisdictional challenge under the Maritime Drug Law Enforcement Act was meritless; 5) the court did not abuse its discretion in denying the defendants' multiple requests for a continuance and proceeding with the trial as scheduled; and 6) defendant's sentence was reasonable.


Continue reading " Findlaw Case Summaries: Criminal Law and Procedure " »

Posted On: May 12, 2009

New York Appellate Criminal Cases Originating from the New York Supreme Court NY County - LexisNexis

Update from the Lexis Alert Service,

May 11, 2009.

1. People v. Acevedo, 511 70/06, 512 70/06, SUPREME COURT OF NEW YORK, APPELLATE DIVISION, FIRST DEPARTMENT, 2009 NY Slip Op 3673; 2009 N.Y. App. Div. LEXIS 3554, May 7, 2009, Decided, May 7, 2009, Entered, THE LEXIS PAGINATION OF THIS DOCUMENT IS SUBJECT TO CHANGE PENDING RELEASE OF THE FINAL PUBLISHED VERSION., THIS OPINION IS UNCORRECTED AND SUBJECT TO REVISION BEFORE PUBLICATION IN THE OFFICIAL REPORTS.
The People of the State ...
... Defendant-Appellant. The People of the State ...
Judgment, Supreme Court, New York County (Renee A. White, ...

2. People v. Fernandez, 6694/05, 2871, SUPREME COURT OF NEW YORK, APPELLATE DIVISION, FIRST DEPARTMENT, 2009 NY Slip Op 3677; 2009 N.Y. App. Div. LEXIS 3558, May 7, 2009, Decided, May 7, 2009, Entered, THE LEXIS PAGINATION OF THIS DOCUMENT IS SUBJECT TO CHANGE PENDING RELEASE OF THE FINAL PUBLISHED VERSION., THIS OPINION IS UNCORRECTED AND SUBJECT TO REVISION BEFORE PUBLICATION IN THE OFFICIAL REPORTS.
The People of the State ...
... appeals from a judgment of the Supreme Court, New York County (Carol Berkman, J.), ...
... People v Van Norstrand, 85 NY2d at 136). Accordingly, the judgment of Supreme Court, New York County (Carol Berkman, J.), ...
... trial. All concur. Judgment, Supreme Court, New York County (Carol Berkman, J.), ...

3. People v. Wash., 478, 6643/06, SUPREME COURT OF NEW YORK, APPELLATE DIVISION, FIRST DEPARTMENT, 2009 NY Slip Op 3600; 2009 N.Y. App. Div. LEXIS 3502, May 5, 2009, Decided, THE LEXIS PAGINATION OF THIS DOCUMENT IS SUBJECT TO CHANGE PENDING RELEASE OF THE FINAL PUBLISHED VERSION., THIS OPINION IS UNCORRECTED AND SUBJECT TO REVISION BEFORE PUBLICATION IN THE OFFICIAL REPORTS.
The People of the State ...
Judgment, Supreme Court, New York County (Ruth Pickholz, J.), ...

4. People v. Otero, 3714, 5602/02, SUPREME COURT OF NEW YORK, APPELLATE DIVISION, FIRST DEPARTMENT, 2009 NY Slip Op 3604; 2009 N.Y. App. Div. LEXIS 3494, May 5, 2009, Decided, May 5, 2009, Entered, THE LEXIS PAGINATION OF THIS DOCUMENT IS SUBJECT TO CHANGE PENDING RELEASE OF THE FINAL PUBLISHED VERSION., THIS OPINION IS UNCORRECTED AND SUBJECT TO REVISION BEFORE PUBLICATION IN THE OFFICIAL REPORTS.
The People of the State ...
Judgment, Supreme Court, New York County (Budd G. Goodman, ...

5. People v. Dimatteo, 490, 491, 7694/02, SUPREME COURT OF NEW YORK, APPELLATE DIVISION, FIRST DEPARTMENT, 2009 NY Slip Op 3614; 2009 N.Y. App. Div. LEXIS 3504, May 5, 2009, Decided, May 5, 2009, Entered, THE LEXIS PAGINATION OF THIS DOCUMENT IS SUBJECT TO CHANGE PENDING RELEASE OF THE FINAL PUBLISHED VERSION., THIS OPINION IS UNCORRECTED AND SUBJECT TO REVISION BEFORE PUBLICATION IN THE OFFICIAL REPORTS.
The People of the State ...
Judgment, Supreme Court, New York County (Bruce Allen, J.), ...

6. People v. Hernandez, 463, 4905/06, SUPREME COURT OF NEW YORK, APPELLATE DIVISION, FIRST DEPARTMENT, 2009 NY Slip Op 3591; 2009 N.Y. App. Div. LEXIS 3491, May 5, 2009, Decided, May 5, 2009, Entered, THE LEXIS PAGINATION OF THIS DOCUMENT IS SUBJECT TO CHANGE PENDING RELEASE OF THE FINAL PUBLISHED VERSION., THIS OPINION IS UNCORRECTED AND SUBJECT TO REVISION BEFORE PUBLICATION IN THE OFFICIAL REPORTS.
The People of the State ...
Judgment, Supreme Court, New York County (Maxwell Wiley, J. ...

7. People v. Smith, 495, 3435/05, SUPREME COURT OF NEW YORK, APPELLATE DIVISION, FIRST DEPARTMENT, 2009 NY Slip Op 3618; 2009 N.Y. App. Div. LEXIS 3500, May 5, 2009, Decided, May 5, 2009, Entered, THE LEXIS PAGINATION OF THIS DOCUMENT IS SUBJECT TO CHANGE PENDING RELEASE OF THE FINAL PUBLISHED VERSION., THIS OPINION IS UNCORRECTED AND SUBJECT TO REVISION BEFORE PUBLICATION IN THE OFFICIAL REPORTS.
The People of the State ...
Judgment, Supreme Court, New York County (Marcy L. Kahn, ...

8. People v. Correa, 476, 3493/06, SUPREME COURT OF NEW YORK, APPELLATE DIVISION, FIRST DEPARTMENT, 2009 NY Slip Op 3598; 2009 N.Y. App. Div. LEXIS 3515, May 5, 2009, Decided, May 5, 2009, Entered, THE LEXIS PAGINATION OF THIS DOCUMENT IS SUBJECT TO CHANGE PENDING RELEASE OF THE FINAL PUBLISHED VERSION., THIS OPINION IS UNCORRECTED AND SUBJECT TO REVISION BEFORE PUBLICATION IN THE OFFICIAL REPORTS.
The People of the State ...
Judgment, Supreme Court, New York County (Marcy L. Kahn, ...

9. People v. Smith, 127, 4805/05, SUPREME COURT OF NEW YORK, APPELLATE DIVISION, FIRST DEPARTMENT, 2009 NY Slip Op 3606; 2009 N.Y. App. Div. LEXIS 3510, May 5, 2009, Decided, May 5, 2009, Entered, THE LEXIS PAGINATION OF THIS DOCUMENT IS SUBJECT TO CHANGE PENDING RELEASE OF THE FINAL PUBLISHED VERSION., THIS OPINION IS UNCORRECTED AND SUBJECT TO REVISION BEFORE PUBLICATION IN THE OFFICIAL REPORTS.
The People of the State ...
Judgment, Supreme Court, New York County (Roger S. Hayes, ...

Posted On: May 12, 2009

New York State: Commission on Judical Conduct Annual Report 2009

Pursuant to Section 42, paragraph 4, of the Judiciary Law of the State of New York the New York State Commission on Judicial Conduct respectfully submits the Annual Report 2009 of its activities covering the period from January 1 through December 31, 2008.

The New York State Commission on Judicial Conduct is the state agency responsible for investigating complaints of misconduct against judges of the state unified court system and, where appropriate, determining to admonish, censure or remove from office those judges found to have engaged in unethical behavior. All determinations are subject to review in the Court of Appeals, New York State's highest court.

New York State. Commissdion on Judicial Conduct, Annual Report 2009

Note: The document is large and may take up to half a minute to open, depending on your computer and Internet connection speeds.

Press Release accompanying 2009 Annual Report

Posted On: May 12, 2009

Is Forensic Science Becoming Fragmanted and Less Reliable?

While most agree that forensic science is a critical element of the criminal justice system, there are increasing expressions of concern as to whether it is becoming fragmanted, less reliable, and urgently needs an infusion of financial and research support in order to remain viable.

These and related concerns have been discussed in a variety of books, journals as well as the web media. Of particular interest to many is the National Academy of Sciences Report on Forensics which addresses directly many of the points mentioned above. While I cannot link directly to that Report here I can link to the National Academy of Sciences (NAS) catalog where you can purchase a copy: http://www.nap.edu/catalog.php?record_id=12589 . There may be a free summary available at that site. The NAS Report is also discussed in some depth in an American Judicature Society Editorial at http://www.ajs.org/ajs/ajs_editorial-template.asp?content_id=797 Also recommended is the Comments on the Release of the NAS Report on Forensic Sciences by the American Society of Crime Laboratory Directors (ASCLD).

Recognizing the growing concern and importane of viable forensics, the New York Times has devoted most of the Science Section of its May 12, 2009 issue to what it calls the "New Forensics". This issue contains a wide selection of articles addressing various aspects of forensic science as related to criminal justice. Links to a few are included in the listings below:"

Plugging the Holes in the Science of Forensics. by Henry Fountain. "A push in forensic science for the kind of rigorous peer-related research that is the hallmark of classic science."

In the Lab, An Ever-Growing Database of DNA Profiles," by Solomon Moore
"The FBI's National Index System, a database of 6.7million genetic profiles is the world's largest repository of DNA information."

"Tracking Cyberspies Through the Web Wildnerness" by John Markoff "Cyberforensics is a new genre of detective work that presents immense technical challenges."

"Judging Honesty by Words, Not Fidgets" by Benedict Carey "Identifying the telling clues in the accounts of liars.

Speech Patterns in Message Betray a Killer by Elizabeth Swoboda
"...He knew Julie was always careful to let her children know where she would be and he couldn't shake a feeling that something was off about the text messages."

Posted On: May 7, 2009

CLE: PLI Corporate Compliance and Ethics Institute 2009

We received the following announcement today which is being posted for your information.

As regulators in the U.S. and around the world are issuing more stringent rules and strengthening their oversight, the current economic conditions are creating more challenges for compliance programs. At no time has promoting and maintaining an ethical corporate culture been as challenging and as essential for a companys survival, well-being, and success.

At PLI's Corporate Compliance and Ethics Institute 2009, scheduled to be held in Chicago on May 20-21, 2009, in New York City and via Live Webcast on June 4-5, 2009, a distinguished faculty, drawn from major corporations, ethics organizations, law firms, academia, and the government, will give you the tools you need to advance or develop an effective compliance program. Experts in the field will discuss how to ensure that your companys compliance program satisfies the rigorous new standards.

The new highly interactive format will allow you to benchmark on a real-time basis and learn best practices from your peers:

Effects of the economic downturn and subsequent rulemaking on compliance programs
Higher expectations for reporting on and documenting your program
Conduct and design Compliance Risk Assessments to obtain the most valuable information
The evolving role of the Board — where governance and compliance meet
International considerations — including Anti-bribery developments
Hypotheticals and interactive panels based on real-world scenarios

Corporate Compliance and Ethics Institute 2009

Chicago, May 20-21, 2009
New York City, June 4-5, 2009
Live Webcast, June 4-5, 2009

Register now.

If you prefer to register by phone, please call PLI's Customer Relations Department at (800) 260-4754. If you register by phone, be sure to mention your Priority Code: CWE9-8AEM6. To simplify the registration process, please provide your Customer ID when registering: 221624.

I look forward to seeing you at the program.

Sincerely,

Rebecca Walker
Program Co-Chair

PS: Upon registration for this PLI program, you will receive an email invitation to PLI XChange.

PLI XChange is the first online learning and collaboration service for the legal community. Designed to utilize the power of enterprise social networking, PLI XChange offers the ability to network with PLI faculty and other program attendees. Share ideas, create new legal relationships and engage in peer-to-peer discussions before and after a PLI program. PLI XChange also offers real-time news feeds, expert commentary and advance copies of course materials. If you do not receive your email invitation to PLI XChange and wish to participate, please contact kobrien@pli.edu.

Posted On: May 7, 2009

Amazon Has Now Released the Latest Version of It's Wireless eBook Reader: Kindle DX

Amazon has now released Kindle DX, a larger, more versatile veriion of its wireless Kindle ebook device. The new DX version has a larger display and a screen which rotates from portrait to landscape to view Web pages and spreadsheets, etc.

Kindle DX and other wireless ebook reading devices certainly do not portend the end of the tradional book as we know it; they are simply useful, but additional, methods of conveying information to readers.

Here are some of the features of the Kindle DX as listed by Amazon:

Slim: Just over 1/3 of an inch, as thin as most magazines

Carry Your Library: Holds up to 3,500 books, periodicals, and documents

Beautiful Large Display: 9.7" diagonal e-ink screen reads like real paper; boasts 16 shades of gray for clear text and sharp images

Auto-Rotating Screen: Display auto-rotates from portrait to landscape as you turn the device so you can view full-width maps, graphs, tables, and Web pages

Built-In PDF Reader: Native PDF support allows you to carry and read all of your personal and professional documents on the go

Wireless: 3G wireless lets you download books right from your Kindle DX, anytime, anywhere; no monthly fees, no annual contracts, and no hunting for Wi-Fi hotspots

Books In Under 60 Seconds: You get free wireless delivery of books in less than 60 seconds; no PC required

Long Battery Life: Read for days without recharging

Read-to-Me: With the text-to-speech feature, Kindle DX can read newspapers, magazines, blogs, and books out loud to you, unless the book's rights holder made the feature unavailable

Big Selection, Low Prices: Over 275,000 books; New York Times Best Sellers and New Releases are only $9.99, unless marked otherwise

More Than Books: U.S. and international newspapers including the New York Times and Wall Street Journal, magazines including The New Yorker and Time, plus popular blogs, all auto-delivered wirelessly

I cannot leave this posting without also referring you tl Lance Ulanoff's review "Amazon's Kindle DX, Cool but Lacks Surprises". Lance attended Amazon's coming out party for the Kindle DX at Pace University on May 6.

Posted On: May 7, 2009

U.S. Said To Halt Program in New York to Detect Biological Attacks

Spencer S. Hsu writes in the May 7, 2009 Washington Post that according to U.S. officials "the Department of Homeland Security is dismanteling a next generation biological attack warning system in New York City subways because of technical problems. Click here to see entire article.

Posted On: May 6, 2009

Studies in Law Related Information Behavior

Rob Richards, a law librarian and legal information consultant in Philadelphia writes: "A list of empirical studies of law-related information behavior is now available at http://home.comcast.net/~richards1000/InformationBehavior.html . If you know of additional studies not listed, I'd be grateful to learn of them. Persons interested in this topic may be interested to know of the availability of a major new dissertation on this topic:

Stephann Makri, A Study of Lawyers' Information Behaviour Leading to the Development of Two Methods for Evaluating Electronic Resources (2008) (unpublished Ph.D. dissertation, University College London), also available at http://eprints.ucl.ac.uk/14729/ ." We are always grateful to Rob for sharing such insights with us.

Posted On: May 5, 2009

Journal: Law & Social Inquiry

A quarterly journal published by John Wiley and Sons, Inc. on behalf of the American Bar Foundation.


Law & Social Inquiry is a multidisciplinary quarterly that publishes original research articles and wide-ranging review essays that contribute to the understanding of sociolegal processes.
Law & Social Inquiry's combination of empirical and theoretical research with critique and appraisal of the sociolegal field make the journal a useful source for the latest research and commentary. Law & Social Inquiry's ambit spans law and sociology, criminal justice,economics, political science, social psychology, history, philosophy and other social science and humanities disciplines. The journal publishes a wide range of scholarship on specific topics in law and society, including but not limited to law, legal institutions, the legal profession, and legal processes.

Posted On: May 5, 2009

New Books and Releases from the ABA Criminal Justice Section

Below is a message, useful to law librarians and others, from the current Chair of the ABA Criminal Justice Section. It includes information about new books and some discussion about publication activities within the Section :

Message from the Chair:

The Criminal Justice Section is comprised of a number of committees charged with the responsibility of addressing a broad array of criminal law topics. While each committee tends to focus on issues related to their special interest, when needed they all work in unison to make clear that we serve as the voice of criminal justice in the nation.

The State of Criminal Justice 2009 is an outstanding example of how our committees collaborate to produce a quality product that informs and provides a valuable service to the public and the entire legal community.

The 2009 edition features authors from across the criminal justice spectrum who provide commentary on a wide range of topics, ranging from white collar crime to international law to juvenile justice. This annual publication examines and reports on the major issues, trends and significant changes in the criminal justice system. As one of the cornerstones of the Section's work, the publication serves as an invaluable resource for lawyers, policy-makers, academics, and students. The 2009 volume contains 21 chapters focusing on specific criminal justice issues, as well as an appendix containing a full text and reports of all ABA policies adopted in 2008-2009 that address criminal justice issues.

I would like to thank first-time editor Myrna S. Raeder, CJS Director Jack Hanna and Publications Manager Kyo Suh for their tireless efforts to ensure this year’s edition provided the same high-quality writing and in-depth analysis as past volumes.

Other recent Section-published releases include Do No Wrong: Ethics for Prosecutors and Defenders, which is a compilation of columns that address a myriad of ethical issues faced by prosecutors and defense attorneys alike in their everyday practice. Crime, Incorporated: Legal and Financial Implications of Corporate Misconduct addresses how the approach to understanding organizational crime has become more difficult because of the increased multi-organizational character of corporate crime, and provides a complete re-examination of traditional legal rules and their application in light of changes in corporate crime over the past decade.

Our Book Board committee, chaired by Andrew Taslitz, should be commended for the outstanding job it does to ensure that we continually issue publications that address the latest cutting-edge topics in the field of criminal law.

Posted On: May 5, 2009

ABA: U.S. Supreme Court Update - May 4, 2009

A Service from the ABA Criminal Justice Section, http://www.abanet.org/crimjust

Flores-Figueroa v. United States
(No. 08-108)

Decided: May 4, 2009

Petitioner Flores-Figueroa, a Mexican citizen, gave his employer counterfeit Social Security and alien registration cards containing his name but other people's identification numbers, he was arrested and charged with two immigration offenses and aggravated identity theft. Flores moved for acquittal on the latter charge, claiming that the Government could not prove that he knew that the documents' numbers were assigned to other people.

The District Court agreed with the Government that the word "knowingly" in sec.1028A(a)(1) does not modify the statute's last three words, "of another person," and, after trial, found Flores guilty on all counts. The Eighth Circuit affirmed.

The USSC held that Section sec.1028(a)(1) requires the Government to show that the defendant knew that the means of identification at issue belonged to another person. As a matter of ordinary English grammar, "knowingly" is naturally read as applying to all the subsequently listed elements of the crime. Where a transitive verb has an object, listeners in most contexts assume that an adverb (such as "knowingly") that modifies the verb tells the listener how the subject performed the entire action, including the object. The Government does not provide a single example of a sentence that, when used in typical fashion, would lead the hearer to a contrary understanding. And courts ordinarily interpret criminal statutes consistently with the ordinary English usage.

Finally, the Government's arguments based on the statute's purpose and on the practical problems of enforcing it are not sufficient to overcome the ordinary meaning, in English or through ordinary interpretive practice, of Congress' words. Pp. 4-11.

Reversed and remanded.

Breyer, J., delivered the opinion of the Court, in which Roberts, C. J., and Stevens, Kennedy, Souter, and Ginsburg, JJ., joined. Scalia, J., filed an opinion concurring in part and concurring in the judgment, in which Thomas, J., joined. Alito, J., filed an opinion concurring in part and concurring in the judgment.

Available at: http://www.law.cornell.edu/supct/html/08-108.ZS.html

Posted On: May 5, 2009

Findlaw Case Summaries: Criminal Law and Procedure - April 27-May 1, 2009

April 27 - May 1, 2009

To view the full-text of cases you must sign in to FindLaw.com. All summaries are produced by Findlaw.

U.S. Supreme Court, April 28, 2009
Cone v. Bell, No. 07-1114
In a capital habeas proceeding, the denial of Petitioner's habeas petition is reversed where the state courts' rejection of Petitioner's Brady v. Maryland claim did not rest on a ground that barred federal review, and the lower courts failed to adequately consider whether the allegedly withheld evidence was material to Petitioner's sentence. .

U.S. Supreme Court, April 29, 2009
Kansas v. Ventris, No. 07-1356
The state supreme court's reversal of defendant's burglary conviction is reversed where the state obtained a confession from a confidential informant but defendant's statement to the informant, concededly elicited in violation of the Sixth Amendment, was admissible to impeach his inconsistent testimony at trial.

U.S. Supreme Court, April 29, 2009
Dean v. US, No. 08-5274
Defendant's firearm conviction is affirmed where defendant claimed he unintentionally fired his gun during a robbery, but 18 U.S.C. section 924(c)(1)(A)(iii) requires no separate proof of intent, and its 10-year mandatory minimum applies if a gun is discharged in the course of a violent or drug trafficking crime, whether on purpose or by accident.

Continue reading " Findlaw Case Summaries: Criminal Law and Procedure - April 27-May 1, 2009 " »

Posted On: May 5, 2009

Findlaw Case Summaries: Constitutional Law April 27-May 1, 1009

April 27 - May 1, 2009

To view the full-text of cases you must sign in to FindLaw.com. All summaries are produced by Findlaw.


U.S. 2nd Circuit Court of Appeals, April 28, 2009
Molinari v. Bloomberg , No. 09-0331
In an action challenging amendments to New York term limits legislation, district court's grant of summary judgment for defendant is affirmed where: 1) plaintiffs do not have a viable First Amendment claim as any chilling of plaintiffs' First Amendment activity is self-imposed and thus incidental and constitutionally insignificant; 2) the challenged law does not violate plaintiffs' substantive due process rights guaranteed by the Fourteenth Amendment; 3) New York Municipal Home Rule Law sec. 23(2)(b) does not require a referendum to enact the challenged law; and 4) court properly dismissed plaintiff's claim that defendants violated the conflicts of interest provisions of the City Charter as any any conflict of interest was not in the terms and conditions of public office.

U.S. 3rd Circuit Court of Appeals, April 27, 2009
McTernan v. City of York , No. 07-4437
In a First Amendment action, district court's judgment is affirmed in part and vacated and remanded where: 1) the court erred in granting summary judgment in favor of the officer on plaintiff's free exercise claim as a reasonable jury could conclude that the restriction imposed on plaintiff failed the general applicability requirement; 2) the court erred in granting summary judgment on plaintiff's free speech claim as significant fact questions persist as to whether the restriction was narrowly tailored and burdened no more speech than necessary to protect traffic safety; and 3) the court properly dismissed plaintiff's municipal liability claims against the defendant and co-defendants in their official capacity.

U.S. 3rd Circuit Court of Appeals, April 27, 2009
Holman v. City of York , No. 07-4438
In a First and Fourth Amendment action, district court judgment is affirmed where: 1) plaintiff failed to demonstrate a cognizable First Amendment violation; 2) plaintiff's Fourth Amendment claim fails as the officer had probable cause to arrest plaintiff for trespass at the scene; and 3) the court properly dismissed plaintiff's municipal liability claims against the defendant and co-defendants in their official capacity.


Continue reading " Findlaw Case Summaries: Constitutional Law April 27-May 1, 1009 " »

Posted On: May 4, 2009

Obama CIO Apointee: Obsolete Regulations Block Government Adoption of Social Media


The U.S. government's CIO recently appointed by President Obama told Congress this week that obsolete regulations are blocking agencies from serving the people by participating in top Web sites and social media. Regulations governing the use of cookies and -- ironically -- disclosure laws are keeping government stuck in the 20th Century. See:

Obsolete Regulations Block Government Adoption Of Social Media

Posted On: May 4, 2009

Comments on How and Where to Write Better Tweets

According to C.G. Lynch's provocative artice in the CIO Insider Newsletter,Twitter's growing popularity is exposing a considerable "fraility" of writing among those tweet. He observes that Twitter's 140 character message format demands concise, engaging writing "and that's a skill that a lot of people don't have. To read more of Mr. Lynch's practical, expert advice click here.

As for where to write, sometimes it seems as though tweeting or twittering is almost universal. Amy Hale-Jenke, Head of Reference at the 5th Circuit Court of Appeals has found many fellow twittering, or tweeting, law librarians by going to the Twitter Yellow Pages. To "meet" all types of legal professionals, including law librarians who like to tweet, you can also go to Justia's Legal Birds, a "Twitter Community." Perhaps all of this gives the quotation, "birds of a feather flock together" a special meaning. Thinking of all this one wonders if tweets are becoming sort of information age variations of haiku that are being spread around the web.

Posted On: May 1, 2009

ABA Journal Weekly Newsletter

Top Ten Stories of the Week ending May 1, 2009:

Law Firms
Profits Drop at 12 of 15 Top Firms
Apr 30, 2009, 07:11 am CDT

Law Schools
Number of Students Applying to Law School Jumps 3.8 Percent
Apr 29, 2009, 12:22 pm CDT

Law Students
Summer Associates Advised to Lose the Sense of Entitlement
Apr 28, 2009, 06:46 am CDT

Criminal Justice
Utah Woman Sentenced to 30 Days in Jail for Texting in Court
Apr 29, 2009, 06:42 am CDT

Privacy Law
Fordham Law Class Collects Personal Info About Scalia; Supreme Ct. Justice Is Steamed
Apr 29, 2009, 01:58 pm CDT

Law Firms
Kilpatrick Stockton Lawyer Dead from Gunshot Wound
Apr 30, 2009, 10:50 am CDT

Obituaries
D.C. Lawyer Dies Saving Drowning Boys
Apr 29, 2009, 06:18 am CDT

Layoffs
Law Firms Use Downturn as Opportunity to Ax Older Partners, Recruiter Says
Apr 27, 2009, 07:39 am CDT

Trials & Litigation
Oops. Partner's No-Show at Hearing Doesn't Help WilmerHale Client's Cause
Apr 28, 2009, 06:25 pm CDT

Health Law
Will Swine Flu Merit Quarantines? If So, New Laws Give States Authority
Apr 27, 2009, 09:29 am CDT

Posted On: May 1, 2009

NYLJ: Special Articles for Law Day


Free: Law Day
Friday, May 1, 2009

Every year on May 1 (Law Day) the New York Law Journal devotes a special section to articles written by prominent members of the New York legal community in commeration of Law Day. Here are abstracts of the articles for 2009.

Staying True to Lincoln's Commitment to Equality
By Jonathan Lippman
"For this 51st annual celebration of Law Day in the United States, the American Bar Association has selected an excellent but challenging theme: "A Legacy of Liberty: Celebrating Lincoln's Bicentennial." Thousands of books and millions of Web pages have been published about Lincoln, who is widely believed to be our nation's greatest president, and many focus on his words in speeches and his many writings. All of that is both a blessing and a curse. To select a theme or quotation for Law Day, we have such a wealth of material that choosing is difficult. I have happily settled on Lincoln's lifelong commitment to equality".

Assisting Homeowners Facing Foreclosures
By Ann Pfau
"The partnering of the court system with legal services organizations, bar associations, and other branches of government to secure legal representation for civil foreclosure defendants, and the centering in the courthouse of an intensive early screening and conference program at the very outset of litigation, all represent creative, collaborative and non-traditional approaches to addressing an extraordinary societal need. The unique nature of these efforts would make them foreign to a lawyer from President Lincoln's time. What would be familiar and welcome to Mr. Lincoln, however, would be our court system's central role in guaranteeing fundamental freedoms".

Courage of the Great Emancipator
By Luis A. Gonzalez
"By the year of Lincoln's birth, the U.S. Constitution was on a steadfast march toward disproving George Washington's gloomy prediction that it would not last 20 years. However, our Constitution was not without its faults, and it was Abraham Lincoln's destiny to champion abolishing one particularly offensive component of the document, the written endorsement of the institution of slavery."

Lincoln's Lessons For the Judiciary
By A. Gail Prudenti
"The problems facing Lincoln were unprecedented in the history of our country. By comparison, the tasks I encounter on a daily basis - building consensus and resolving problems confronted by judges and court staff - are less momentous. Nonetheless, Lincoln's approach to problem-solving has provided helpful guidance to me time and time again."

The Influence of Two New Yorkers
By Henry J. Scudder
"President Abraham Lincoln believed the Emancipation Proclamation would be his greatest legacy. As he signed the document on Jan. 1, 1863, he proclaimed, "If my name ever goes into history, it will be for this act." As we celebrate the bicentennial of his birth, we should recall the contributions of two New York residents who influenced his decision to issue the Emancipation Proclamation, namely, William Seward and Frederick Douglass."

Responsibility for the Common Good
By Michael R. Bloomberg
"Although rightly remembered as a champion of individual liberty, Lincoln also had a tremendous sense of the common good, of our responsibility to each other, and in the ability of people to come together to build a better, brighter future for their neighbors - especially during times of tumult."

As a Lawyer, Lincoln Saw Our Higher Calling
By Bernice K. Leber
"Many have commented that Lincoln possessed a service mentality; and while he was ready to represent any client, he also drew upon his love of the rule of law as a springboard for public action."

Matching Needs in the Economic Crisis
By Patricia M. Hynes
"As we lawyers celebrate Lincoln's bicentennial and think of the liberty we so dearly cherish and defend, we are constantly reminded that our liberty depends upon a justice system that guarantees these liberties. But the justice system only works for those who can gain access to it."

Call to Serve Those Less Fortunate
By Steven S. Orlow
"Lawyers, among the most fortunate in our society, who themselves represent a culturally and ethnically diverse population, coming to the aid of the "other" - in this case the less fortunate - and doing so in a way that stands as one sign among so many that this nation has gratefully come a very long way."

Inspiration From Speech at Cooper Institute
By Ann B. Lesk
"I attended the public reading of the Constitution in the Great Hall at Cooper Union in 2004, and my first surprise was to find that the hall was overflowing. The next, continuing surprise was that the audience was deeply, enthusiastically and vocally responsive to the words of the Constitution".

Raises for Judges Promote Liberty
By Peter H. Levy
"Would Abraham Lincoln be proud of his country as it stands in 2009? From President Barack Obama's election to the mere fact that the U.S. Constitution still stands as a living and breathing guide to our daily lives, the answer would be a resounding yes. But then if he looked north from his perch in Washington or east from his home in Illinois to the capitol of the Empire State, he might have to rethink his enthusiasm."

Progress Made, Hard Work Continues
By James P. Chou
"On this Law Day, while we celebrate the legacy that has opened doors of opportunity for the historically oppressed and disenfranchised, let us be mindful that much work lies ahead if we are to ensure that Lincoln's legacy of liberty and equality endures."

Legacy Includes Ending Gender Bias
By Hemalee J. Patel
"Lincoln's legacy was certainly one of liberty but also of hope, perseverance and the idea that one must always do what is right, even if it is not easy".

Posted On: May 1, 2009

American Libraries Direct

April 29, 2009.

An e-publication of the American Library Association (ALA)

HIGHLIGHTS:

OCLC challenges ILS vendors
In what clearly represents a challenge to the integrated library system industry, OCLC announced April 23 that it has created what it calls “the first web-scale cooperative library management service,” inviting member libraries to “take the first step to realizing this cooperative service model with a new, ‘quick start’ version of the OCLC WorldCat Local service.” The service expands WorldCat Local’s cataloging and discovery tools to include functions now performed in most libraries by a locally installed integrated library system. Andrew Pace, OCLC’s executive director for networked library services, explains why this service is a “sea change” in this exclusive interview....
American Libraries Online, Apr. 24

Groups submit comments in favor of access
ALA, ACRL, and the Association for Research Libraries jointly submitted comments (PDF file) to the U.S. Copyright Office April 28 on the topic of facilitating access to copyrighted works for the blind or persons with other disabilities. The associations believe they should be afforded the same access to materials as sighted persons. Currently, only about 5% of published books are available in accessible formats for the visually impaired. Some materials are not available at all, particularly scholarly journals, research materials, professional resources, and local history materials....
District Dispatch, Apr. 28

Congress supports National Library Week
The U.S. House of Representatives passed H. Res. 336, a resolution in support of National Library Week, April 22. During the floor debate, Reps. Paul Tonko (D-N.Y.), Vern Ehlers (R-Mich.), and Michele Bachmann (R-Minn.) made statements highlighting the significant role libraries and librarians serve in communities across the country....
District Dispatch, Apr. 23

Continue reading " American Libraries Direct " »

Posted On: May 1, 2009

ABA: U.S. Supreme Court Update

May 1, 2009.

Service from the ABA Criminal Justice Section, http://www.abanet.org/crimjust

DEAN v. UNITED STATES (No. 08-5274)

United States Supreme Court Opinion Decided: April 29, 2009

Petitioner Dean was convicted of conspiring to commit a bank robbery and discharging a firearm during an armed robbery. Because the firearm was "discharged" during the robbery, Dean was sentenced to a 10-year mandatory minimum prison term on the firearm count. sec.924(c)(1)(A)(iii).

On appeal, he contended that the discharge was accidental, and that sec.924(c)(1)(A)(iii) requires proof that the defendant intended to discharge the firearm. The Eleventh Circuit affirmed, holding that no proof of intent is required.

The Supreme Court held that Section 924(c)(1)(A)(iii) requires no separate proof of intent. The 10-year mandatory minimum applies if a gun is discharged in the course of a violent or drug trafficking crime, whether on purpose or by accident.

Subsection (iii) provides a minimum 10-year sentence "if the firearm is discharged." It does not require that the discharge be done knowingly or intentionally, or otherwise contain words of limitation.

Mr. Dean argued that subsection (iii) must be limited to intentional discharges in order to give effect to the statute's progression of harsher penalties for increasingly culpable conduct. While it is unusual to impose criminal punishment for the consequences of purely accidental conduct, it is not unusual to punish individuals for the unintended consequences of their unlawful acts. The fact that the discharge may be accidental does not mean that the defendant is blameless.

Because the statutory text and structure demonstrate that the discharge provision does not contain an intent requirement, the rule of lenity is not implicated in this case.

Affirmed.

Roberts, C. J., delivered the opinion of the Court, in which Scalia, Kennedy, Souter, Thomas, Ginsburg, and Alito, JJ., joined. Stevens, J., and Breyer, J., filed dissenting opinions.

Available at: http://www.law.cornell.edu/supct/html/08-5274.ZS.html

KANSAS v. VENTRIS (No. 07-1356)

United States Supreme Court Opinion Decided: April 29, 2009

Respondent Donnie Ray Ventris and Rhonda Theel were charged with murder along with other crimes. Prior to trial, an informant heard Ventris admit to shooting and robbing the victim, but Ventris testified at trial that Theel committed the crimes. When the State sought to call the informant to testify to his contradictory statement, Ventris objected. The State conceded that Ventris's Sixth Amendment right to counsel had likely been violated, but argued that the statement was admissible for impeachment purposes. The trial court allowed the testimony. The jury convicted Ventris of aggravated burglary and aggravated robbery.

The Kansas Supreme Court reversed holding that the informant's statements were not admissible for any reason, including impeachment.

The Supreme Court held that Ventris's statement to the informant, concededly elicited in violation of the Sixth Amendment, was admissible to impeach his inconsistent testimony at trial.

The interests safeguarded by excluding tainted evidence for impeachment purposes are "outweighed by the need to prevent perjury and to assure the integrity of the trial process." Stone v. Powell, 428 U. S. 465. Once the defendant testifies inconsistently, denying the prosecution "the traditional truth-testing devices of the adversary process,"

Harris, supra, at 225, is a high price to pay for vindicating the right to counsel at the prior stage. On the other hand, preventing impeachment use of statements taken in violation of Massiah would add little appreciable deterrence for officers, who have an incentive to comply with the Constitution, since statements lawfully obtained can be used for all purposes, not simply impeachment. In every other context, this Court has held that tainted evidence is admissible for impeachment. See, e.g., Oregon v. Hass, 420 U. S. 714.

Reversed and remanded.

Scalia, J., delivered the opinion of the Court, in which Roberts, C. J., and Kennedy, Souter, Thomas, Breyer, and Alito, JJ., joined. Stevens, J., filed a dissenting opinion, in which Ginsburg, J., joined.

Available at: http://www.law.cornell.edu/supct/html/07-1356.ZS.html

Posted On: May 1, 2009

AALL Washington E-Bulletin

Volume 2009, Issue 4
April 30, 2009

Published by the American Association of Law Libraries (AALL) Government Relations Office

Through its Washington E-Bulletin, the AALL Government Relations Office keeps the AALL membership abreast of governmnt policy news important to law libraries and law law librarians.

True to form, the April 2009 issue includes summaries of key policy issues the Office is covering. Topics include: Updates from the Hill, Outside the Beltway Chapter News, and Further Readings for the Information Policy Junkie. More specifically, efforts to urge President Obama to strike a balance in his positions on intellectual property issues and efforts to urge the National Archives and Records to maintain public access to Presidential documents are discussed in some detail.

Regardless of whether you are an AALL member we urge you to examine this issue of the Bulletin, especially if you are an "information policy junkie."