Posted On: May 28, 2010

State Judicial Elections

Selections from the Fair Courts e-lert May 28, 2010, published by the Brennan Center for Justice at New York University School of Law.

State Judicial Elections

1. Retired Justice Sandra Day O'Connor continues to advocate for states to replace contested judicial elections with merit selection systems. In an op-ed appearing in the New York Times, O'Connor urges individuals to pay attention to the selection of state court judges because "In too many states, citizens are being shortchanged by the way [state court judges] are chosen . . . . When you enter one of these courtrooms, the last thing you want to worry about is whether the judge is more accountable to a campaign contributor or an ideological group than to the law."

Sandra Day O'Connor, Take Justice Off the Ballot, New York Times, May 21, 2010.

2. Sandra Day O'Connor is not the only Justice to argue that judicial elections damage public trust in impartial justice. The Wisconsin State Journal cites Justice John Paul Steven's criticism of the practice of electing state judges as evidence that "momentum is growing for reform in which justices are selected for their experience and independence, not for their ability to raise money, court the special interests and charm voters." At a legal conference in Columbus, Ohio, Stevens discussed a case he heard while sitting on the federal appeals court. Stevens told conference attendees that he remembered thinking, "'I have life tenure.' . . . So unlike the Wisconsin justices who originally heard the case, he didn't have to worry about voters punishing him if his decision was unpopular." Steven's position - "to throw out the conviction because [the defendant] had not been given due process" - was indeed extremely unpopular, but ultimately affirmed by the U.S. Supreme Court.

Editorial, Stevens Offers Stark Example, Wisconsin State Journal May 25, 2010.

3. According to the Union Tribune, although incumbent judges rarely face challenges, the San Diego Superior Court has become an unexpected judicial battleground. The Union Tribune reports that a group named Better Courts Now is targeting four sitting judges in San Diego in an attempt to replace them with judges who reflect the group's more conservative stances on gay marriage and abortion. "The challengers 'all say they're running in large part to give voters a voice on who sits on the bench'. . . and they advocate that judges should uphold laws passed by elected legislatures and not 'make the law.' One challenged incumbent decried the challenge, however, stating that "Better Courts Now adds both a partisan and 'values issue' to the race for judge."

Greg Moran, 'Moral Vote' Group Targets Four Judicial Seats, Union-Tribune, May 22, 2010.

4. "'I've never seen this kind of campaigning for appellate judicial office before, never,' said retired Court of Appeals Judge Joseph Alarid," about the fractious primary race between Dennis Montoya and Judge Linda M. Vanzi for Vanzi's seat on the New Mexico Court of Appeals. Two of Vanzi's campaign mailings call attention to Montoya's "documented record of unethical behavior," about which Vanzi claims firsthand knowledge. Before Gov. Bill Richardson appointed Vanzi to the Court of Appeals in October 2008, Vanzi was a state district judge in Albuquerque. Vanzi reported Montoya to the state Supreme Court's disciplinary board in 2008. According to the Albuquerque Journal, "Just last month, the board charged Montoya with a pattern of misconduct in several legal actions. . . The board also says it is investigating nine additional misconduct complaints against Montoya, related to other cases. The disciplinary panel is asking the state Supreme Court to suspend Montoya while the investigations are under way. The high court has scheduled a hearing for June 2, the day after the primary election."

Deborah Baker, Charges Fly In Appeals Court Race; Incumbent Calls Rivalry 'Bizarre,' Albuquerque Journal, May 23, 2010.

5. California Supreme Court Justice Ming Chin testified last week before the Assembly Judiciary Committee at a hearing entitled "Judicial Elections in California: Threats to the Perception of Fairness." According to Legal Pad, Justice Chin, who chairs the Commission for Impartial Courts, remarked that "he was 'getting closer' to opposing judicial elections completely. 'The more that I hear about what's going on across the country, the more concerned I am.'"

Cheryl Miller, Judicial Elections- A Race to the Bottom?, Legal Pad, May 18, 2010.

6. Arkansas Secretary of State Charlie Daniels reported that turnout for the May 18 Preferential Primary and Nonpartisan Judicial General Election was the highest that Arkansas has seen in a party primary since 1994, not counting 2008s presidential primary. KARK 4 News notes that "[p]arty primaries generally garner only about a third of the voter participation seen in general elections, but this year's primary and judicial elections were especially interesting to voters because of the sheer volume of candidates running for a good number of open seats."

Sec. Daniels Reports 29% Preliminary Statewide Turnout for 2010 Preferential Primary and Nonpartisan Judicial Election, KARK 4 News, May 21, 2010.

Posted On: May 27, 2010

The Third Way: A Narrowly Tailored Broadband Framework

David Badertscher

This posting is essentially a followup of two of our earlier postings on this topic which you can find here and here.

It begins with two statements released by the U.S. Federal Communications Commission (FCC) on May 6, 2010 in partial response to the recent decision in the Comcast case.and continues with a listing of recent Congressional Research Service (CRS) Reports addressing various aspects of the topic:

First Statement:
The Third Way: A Narrowly Tailored Broadband Framework. a statement by Julius Genachowski
Chairman, Federal Communications Commission.

Many have asked about the FCC’s next steps in view of the recent decision in the Comcast case. On May 6, 2010 the Federal Communications Commission (FCC) released two statements to address this question. The first statement by Julius Genachowski, Chairman of the FCC describes a path forward, which will begin with seeking public comment on a post-Comcast legal foundation for the FCC’s approach to broadband communications services. The goal according to Mr. Genachowski, is to restore the broadly supported status quo consensus that existed prior to the court decision on the FCC’s role with respect to broadband Internet service. He emphasizes that he "is open to all ideas on the best approach to achieve our country’s vital goals with respect to high-speed broadband for all Americans, and the Commission proceeding to follow will seek comment on multiple legal theories and invite new ideas".

Second Statement:
A Third-Way Legal Framework For Addressing The Comcast Dilemma, a statement by Austin Schlick, General Counsel, Federal Communications Commission prepared at the request of Chairman Genachowski:

The second statement, prepared by Austin Schlick, General Counsel of the FCC at the request of Chairman Genachowski describes the legal thinking behind the narrow and tailored approach to broadband communications services that Chairman Genachowski introduced for public discussion on May 6. It springs from a longstanding consensus about how the FCC should approach Internet access services; from a recent court decision that casts serious doubt on the FCC’s current strategy for implementing that consensus; and from a belief that Congress’s laws and the Supreme Court’s decisions provide a way to overcome this new challenge.

Those interested in this topic may also want to obtain copies of the following recently released CRS Reports: Due to restrictions we cannot provide them in full text on this blog.

Distribution of Broadband Stimulus Grants and Loans: Applications and Awards
Report No. R41164
Subjects: Rural Affairs; Telecommunications
CRS Reports, 111th Congress (4/16/2010; Posted: 4/23/2010)

Broadband Internet Access and the Digital Divide: Federal Assistance Programs
Report No. RL30719
Subjects: Telecommunications
CRS Reports, 111th Congress (4/19/2010; Posted: 5/4/2010)

Broadband Loan and Grant Programs in the USDA's Rural Utilities Service
Report No. RL33816
Subjects: Rural Affairs; Telecommunications
CRS Reports, 111th Congress (4/20/2010; Posted: 5/5/2010)

The FCC's Authority to Regulate Net Neutrality after Comcast v. FCC
Report No. R40234
Subjects: Telecommunications
CRS Reports, 111th Congress (4/23/2010; Posted: 5/6/2010)

Broadband Infrastructure Programs in the American Recovery and Reinvestment Act
Report No. R40436
Subjects: Economic Policy; Telecommunications
CRS Reports, 111th Congress (5/6/2010; Posted: 5/17/2010)

Access to Broadband Networks: The Net Neutrality Debate
Report No. R40616
Subjects: Telecommunications
CRS Reports, 111th Congress (5/6/2010; Posted: 5/18/2010)

Posted On: May 26, 2010

Book Review: The Supreme Court: A C-SPAN Book Featuring the Justices in Their Own Words

SUBTITLE: A C-SPAN Book Featuring the Justices in Their Own Words
EDITORS: Brian Lamb, Susan Swain, and Mark Farkas
PUBLISHER: Perseus Books
PAGE COUNT: 372 pp.
ISBN: 978-1-38648-835-2
PRICE: $28.95

A team of C-SPAN editors has assembled a selection of interviews with current and former U. S. Supreme Court Justices, as well as Court followers, experts, and participants in the judicial process drawn from the fields of law, government, and journalism. Taken together, the interviews provide a historical overview and policy perspective of the Court which is rarely seen in current literature. The Justices pontificate on the history of the Court, its place in the structure of government, and the role of the Court in shaping modern society. Especially revealing are the discussions centered about its inner workings, such as the manner in which cases come before the Court, how they are heard, and how the Justices discuss, debate, and decide their opinions. At the end of the book are many useful reference resources, including biographies, listings, surveys, statistics, and a summary of important decisions and seminal historical events in Supreme Court history. The book is aimed at a general audience and is thus recommended mainly for public and school libraries.

Philip Y. Blue, New York State Supreme Court Criminal Branch Law Library, First Judicial District, New York, New York


We are never paid to do a review. We never accept money to review a product or service. We invest our own time to review and test products.

Posted On: May 26, 2010

CLLB Information Security Newsletter

Volume 3 Number 5 May 2010

Identity Theft

From the Desk of David Badertscher

What is Identity Theft?

Identity theft is a crime in which your personal information such as your name, social security number, date of birth, and address is stolen and may be used by someone to assume your identity, often for the purpose of financial gain. It is also referred to as “identity fraud” when the stolen identity is used to impersonate the victim. Methods a criminal may use to steal your data over the Internet include hacking or using spam and phishing. Social media sites and file sharing can be prime targets for identity thieves, since users often make the assumption of a trusted environment, sharing personal information without understanding the consequences.

Identity theft is not just a risk for those who use the Internet. Criminals can obtain information by sorting through garbage, eavesdropping, stealing wallets, picking up receipts at restaurants, and other means.

Once enough information is gathered, criminals may open new credit card accounts, apply for loans, empty your bank accounts, make charges on your credit card, or develop fake forms of identification.

Identity thieves will not always use the information themselves. They may sell it to underground markets for financial gain.

What can I do to protect my identity?

• Ensure that any computer used to connect to the Internet has proper security measures in place. Use and maintain anti-virus software and keep your application and operating system patches up-to-date.
• Do not follow links provided by unknown or un-trusted sources.
• Do not open e-mail attachments from unknown users or suspicious e-mails from trusted sources.
• If you employ file sharing programs, check the configuration settings to ensure you are not inadvertently sharing your personal information.
• Be careful what personal information you distribute, particularly on social networking sites, and continuously check to see what information others may be posting about you. Also verify your privacy settings to ensure you are not inadvertently sharing your personal information.
• Check your credit reports from all three major credit bureaus (Equifax, Experian, and TransUnion) at least once a year. You are entitled to one free credit report from each bureau every year. You may wish to stagger your requests to check a different credit bureau every four months.
• Guard your personal information, including your social security number. Don’t carry your social security card with you, and don’t provide your social security number to anyone unless they have a legitimate need for it.
• Don’t put your social security number or driver’s license number on your checks.
• Be aware of your surroundings when providing personal information orally. Watch for eavesdroppers.
• Properly discard hard copy documents containing personal information. A crosscut paper shredder works best.

What do I do if my identity has been stolen?

The first step is to notify your bank, and any other entities with which you have accounts, to inform them that someone may be using your account fraudulently. File a report with your local police and report the event to the Federal Trade Commision. It is helpful to have your financial statements available to better explain your situation.

Contact all three major credit bureaus to request a credit report, and have a fraud alert or a credit freeze placed on your credit reports to prevent accounts from being opened without your permission.

Continue to monitor all of your accounts for any suspicious activity.

Additional Information:

• Multi-State Information Sharing and Analysis Center - ||

• Federal Trade Commission

• Identity Theft Resource Center

• Test your Identity Theft Knowledge

• National Cyber Security Alliance

For more monthly cyber security newsletter tips visit:

The above information is from tips provided by the Multi-State Information and Analysis Center (MS-ISAC). To learn more about MS-ISAC go to


At a Technology Managers Forum on May 13, 2010 devoted to information security issues, Spencer Parker, Director of Product Management at CISCO gave a keynote presentation titled Dispelling The Myths of Cloud Security. In his presentation Mr. Parker examined the truth behind five common myths about cloud security and outlined the factors fueling its rapid growth. He also presented data from real companies utilizing the cloud, such as:

Employee time spent on Facebook applications.
Ongoing prevelance of data theft Trojans.
A look at advanced, granular reporting capabilities.

Interview with Brian Hengesbaugh, partner with Baker & McKenzie, on global security and privacy challenges

In a May 2010 interview and podcast reported by Bank Info Brian Hengesbaugh, partner in the Chicago office of the law firm Baker & McKenzie observes there isnothing smooth about navigating the tricky waters of data security and privacy on a global basis. Regulations vary and often conflict with one another. Click here to read the interview and link to the podcast.

Posted On: May 26, 2010

Panel Presentation: Recent Trends in White Collar Prosecutions

Presented by the ABA Criminal Justice Section White Collar Crime Committee Mid-Atlantic Region Subcommittee:

This panel will address the most recent developments in White Collar prosecutions in New Jersey. The Honorable Paul Fishman will describe the challenges facing the United States Attorney’s Office and new initiatives. Seasoned defense and in-house counsel will give their perspectives on recent trends

Jack Wenik, Member, Sills Cummis & Gross P.C.

Hon. Paul J. Fishman, United States Attorney for the District of New Jersey
Jerry D. Bernstein, Partner, Blank Rome LLP
Michael R. Clarke, Biomet Spine and Trauma
Leslie Stolbof Sinemus, Law Office of Leslie Stolbof Sinemus

To register for the program go to

6-8:00 p.m.
Thursday, June 10, 2010
Complimentary cocktails and light dinner will be served.

The Newark Club
One Newark Center, 22nd Floor
1085 Raymond Blvd.
Newark, NJ 07102

The ABA CJS White Collar Crime Committee would like to thank Sills Cummis & Gross P.C., Blank Rome LLP, and LECG LLC for co-sponsoring and hosting this event.

Posted On: May 26, 2010

A U.S. Supreme Court Case Brief: Professor Rory Little's Perspective

United States v. Marcus, No. 08-1341, 130 S.Ct. ___(may 24, 2010).

A Service from the ABA Criminal Justice Section,

This summary has been created by Professor Rory K. Little (, U.C. Hastings College of the Law, San Francisco, who has long presented “Annual Review of the Supreme Court’s Term” program at the ABA’s Annual Meetings. It represents his personal, unofficial views of the Justices’ opinions. The original opinions should be consulted for their authoritative content.

The CJS hopes these summaries will be helpful to you, because they are different from the average news or blog account, in at least three ways: first, a detailed account of the rationale of ALL the opinions issued in a case, including nuances found in separate concurring and dissenting opinions; second, an account of the decision that is essentially “neutral” -- that is, not really a “perspective” in the sense of the author’s personal opinions, but rather a straightforward account that can be relied upon by lawyers of all stripes; and then third, a bit of “inside baseball” analysis of some of the twists or nuances that are not apparent in the opinion.

FEDERAL RULES – Plain Error Doctrine, Federal Rule of Criminal Procedure 52(b).

United States v. Marcus, No. 08-1341, 130 S.Ct. ____ (May 24, 2010), reversing 538 F.3d 97 (2d Cir. 2008) (per curiam) (with Sotomayor, J., concurring [and hence recused in USSCt).

Holding (7-1), Breyer; Stevens dissenting (Sotomayor recused): “Plain error” review -- for errors not objected to in the trial court but raised for the first time on appeal -- requires a “reasonable probability that the error affected the outcome of the trial,” not just “any possibility no matter how unlikely” as the Second Circuit stated. (Interestingly, while on the Second Circuit, Justice Sotomayor had concurred in the judgment while pointing out the panel’s error (but following Second Circuit precedent). Here, although Justice Sotomayor recused herself, the Supreme Court effectively instituted her concurrence as its near unanimous holding.)

Facts: Marcus was indicted on federal charges that he had committed forced labor and sex trafficking between January 1999 and October 2001. He was tried on evidence showing coercive sexual bondage and dominance conduct with a number of women during this period, and convicted on both charges. On appeal, he raised for the first time the fact that the federal statute he was charged under had not gone into effect until October 2000, in the middle of the period charged by the government. The government argued that this was not “plain error” under Fed.R.Cr.Pro. 52(b), because the conduct was a continuing offense and the evidence of criminal conduct after October 2000 was sufficient. But the Second Circuit reversed and remanded for a new trial, invoking CA2 precedent that said when such a potential “ex post facto” event occurs, retrial is necessary if there was “any possibility, no matter how unlikely,” that the jury could have convicted based exclusively on pre-enactment conduct.

Justice Breyer (for 7 members of the Court): The CA2 legal standard is “inconsistent with this Court’s” plain error precedents. Rule 52(b) allows an appellate court to reverse a conviction for even an unobjected-to error, when it is “plain error that affects substantial rights.” The Court has specified a four-step inquiry to determine “plain error”: “that (1) there is an error; (2) the error is clear or obvious,…; (3) the error affected the appellant’s substantial rights,….; and (4) the error seriously affects the fairness, integrity, or public reputation” of the judiciary. (Also (5), there may (rarely) be types of “structural error” that require reversal even without this four-poart showing – but we think the error here is no more important than other errors involving constitutional rights that we have found not to be “plain” error.) The third step requires a Strickland-like showing: “prejudice,” meaning a “reasonable probability” that the error affected the outcome. Here, there was no real “ex post facto” error; rather, the error was not instructing the jury that Marcus’s conduct was not unlawful until October 2000. For this, a “showing of individual prejudice” is required. While not “intend[ing] to trivialize” the claim, this case is remanded for CA2 to apply the more demanding plain error analysis we describe.

Stevens dissenting: Although the court of appeals did (“curious[ly]”) misdescribe the test, “I find nothing wrong with [its] judgment.” To me, “the post-enactment evidence appears to have been insufficient to prove guilt beyond reasonable doubt” (citing Judge Sotomayor’s concurrence below). There is “a very real possibility” that the jury convicted Marcus “solely on the basis of preenactment conduct.” I think this “seriously undermined the integrity of the proceedings.” In addition, I think the Court’s complicated five-step analysis has “both muddied the waters and lost sight of the wisdom embodied in the Rule’s spare text.” Courts of appeal need discretion here, because they “repeatedly confront” errors that occur but were not perceived below AND [Ed. Note: this next is an unusually candid, if also accurate to practitioners, admission] “[t]hey become familiar with particular judges.” The court’s “ever-more intensive efforts to rationalize plain-error review” has “trapped the appellate courts in an analytic maze” that “is more liable to frustrate than to facilitate sound decisionmaking.”

Posted On: May 25, 2010

Attorney General Andrew Cuomo Formally Announces His Campaign for New York Governor

On Saturday May 22, 2010, Democrat Andrew Cuomo the New York State Attorney General made an official announcement that he will seek the New York governor's job once held by his father, Mario Cuomo. Below we include two links to documents released along with the announcement. The first link is to the transcript of the announcement The second is to a policy statement which he calls his "New York Agenda: A Plan for Action". This is an extensive document which focuses on many areas including new education, environment, and energy.

The beginning of the "New York Agenda: A Plan for Action" includes a summary in the form of the following bullet points which collectively provide an overall picture of the agenda being presented.:

1. Clean Up Albany. We must restore honor and integrity to government, with tough new
ethics standards, expanded disclosure requirements, independent investigators to root
out and punish corruption, and an overhaul of campaign finance laws. We must remove
legislative redistricting from partisan elected politicians and place it in the hands of an
independent commission that works only for the people. And we must hold a constitutional
convention – A People’s Convention – to rewrite the Constitution and make these changes
immediately because we cannot wait any longer for the state legislature to act.

2. Get Our Fiscal House in Order. We must get our State’s fiscal house in order by immediately
imposing a cap on state spending and freezing salaries of state public employees as
part of a one-year emergency financial plan, committing to no increase in personal or
corporate income taxes or sales taxes and imposing a local property tax cap. We must
also eliminate mandates that make it impossible for school districts and localities to
contain costs.

3. Rightsizing Government. Government in New York is too big, ineffective and expensive.
We must enlist the best private sector minds to help overhaul our more than 1,000
state agencies, authorities and commissions and reduce their number by 20 percent.
We must make it easier to consolidate or share services among our more than 10,000
local governments.

4. NY Works. We must make New York the jobs capital of the nation and get unemployed
New Yorkers back to work. We will give businesses a tax credit of up to $3,000 for
each unemployed New Yorker hired for a new job. We must also replace New York’s
ineffective economic development efforts with a new strategy organized around regional
industry clusters; reduce the high costs of doing business in the state; and support small
businesses by increasing access to capital and streamlining regulatory barriers.

5. NY Leads. New York has been a national leader in protecting and advancing individual
rights and safeguarding the future of its citizens. To remain so, we must protect a
woman’s right to choose, achieve marriage equality, enact tough anti-discrimination laws,
truly regulate Wall Street, attract the best and the brightest to government, leave our
children a cleaner and greener world, and continue to oppose the death penalty

Posted On: May 25, 2010

ABA: U.S. Supreme Court Update

A Service from the ABA Criminal Justice Section,

Received: May 25, 2010.


In an opinion by Justice Kennedy, the United States Supreme Court ruled the fact that a firearm was a machinegun is an element to be proved to the jury beyond a reasonable doubt and not a sentencing factor to be proved to the judge at sentencing.

Respondents O’Brien and Burgess carried firearms during an attempted robbery. They were indicted under 18 U.S.C.§924(c)(1)(A)(i) - using a firearm in furtherance of a crime of violence, which carries a mandatory minimum of 5 years in prison. They were also indicted with a violation of §924(c)(1)(B)(ii) - use of a machinegun in furtherance of that crime, which carries a 30 year mandatory minimum prison term. The government went on to dismiss the latter count on the basis that they could not establish the count beyond a reasonable doubt. However, the government maintained that §924(c)(1)(B)(ii)’s machinegun provision should be a sentencing enhancement to be determined by the court after conviction of §924(c)(1)(A)(i). The District Court dismissed the machinegun count and rejected the government’s sentencing enhancement position. Respondents then plead guilty to the remaining counts.

The Supreme Court granted cert and the case was argued on February 23, 2010. The Court relied largely on Castillo v. United States, 530 U. S. 120, which held that in an earlier version of §924(c), the machinegun provision was an element of the crime and not a sentencing factor (which only needs to be proved by a preponderance of the evidence). The Court previously held when Congress is not clear on whether a factor is an element or a sentencing factor, courts should examine a statute’s framework and provisions for direction. The Court followed the determination in Castillo that the machinegun provision in §924’s prior version is an element and that a substantive modification of the statute should not be inferred absent a clear sign from Congress of a change in policy. Grogan v. Garner, 498 U. S. 279, 290 (1991). The Court found that nothing in the amendment of §924 indicates such a substantive change. Ultimately, the Court held that the machinegun provision is an element that needs to be proven beyond a reasonable doubt.

KENNEDY, J., delivered the opinion of the Court, in which ROBERTS, C. J., and STEVENS, SCALIA, GINSBURG, BREYER, ALITO, and SOTOMAYOR, JJ., joined. STEVENS, J., filed a concurring opinion. THOMAS, J., filed an opinion concurring in the judgment.

Case is available at:

Written by Chaz Lehman, CJS Research Attorney

United States v. Marcus, No. 08-1341

United States Supreme Court Decision: May 24, 2010

In a 7-1 opinion by Justice Breyer, the United States Supreme Court held that the 2nd Circuit’s interpretation of Federal Rule 52(b) was inconsistent with the Supreme Court’s interpretation of the plain error rule.

Glenn Marcus was convicted of unlawful forced labor and sex trafficking in violation of 18 USC §§ 1589 and 1591(a)(1) between January 1999 and October 2001. Upon appeal, Marcus raised the defense for the first time that his statutes relating to his convictions became law on October 28, 2000. The indictment and all of the evidence used against him at trial took place earlier. Marcus argued that his conviction, therefore, violated the Ex Post Facto Clause. Marcus argued that his conviction must be overturned because the constitutional error constituted “plain error” according to Federal Rules of Criminal Procedure, Rule 52(b).

The 2nd Circuit held that plain error exists if there is any possibility, no matter how unlikely, that a jury convicted a defendant exclusively on the basis of the actions the defendant took before the statute criminalizing his conduct was enacted. The Supreme Court granted cert to decide whether the 2nd Circuit’s “plain error” approach was consistent with the Supreme Court’s own interpretation.

Federal Rule 52(b) authorizes the appellate court to recognize “plain error that affects substantial rights” even if that error was not raised in the district court. The Supreme Court held the 2nd Circuit’s interpretation improper because Marcus failed to demonstrate that “the error ‘affected the appellant’s substantial rights’”, meaning it “affected the outcome of the district court proceedings”, and that “the error seriously affect(s) the fairness, integrity or public reputation of judicial proceedings.” The 2nd Circuit’s “any possibility, no matter how unlikely” analysis is inconsistent. Reversed and remanded.

Justice Breyer delivered the opinion of the Court, joined by Roberts, C.J., and Scalia, Kennedy, Thomas, Ginsburg, and Alito, JJ.. Justice Stevens dissented. Judge Sotomayor took no part in the consideration or decision of this case.

Case is available at:
Written By: Afua A. Osseo-Asare, CJS Intern

Jefferson v. Upton No. 09-8852

United States Supreme Court Decision: Decided: May 24, 2010

In a per curiam opinion issued today the Supreme Court ruled that the appellate court (11th Cir.) failed to apply all eight exceptions to a state court factual findings (regarding constitutionality of representation) and the judgment was vacated to consider several remaining potentially applicable exceptions. See 28 U.S.C. §§2254(d)(1)-(8) (1994 ed.).

Lawrence Jefferson was facing a death sentence and claimed in both state and federal court that his lawyers were constitutionally inadequate because they failed to investigate a previous brain injury which may have impacted his impulse control. As a child Jefferson suffered a serious brain injury and at the district court level expert testimony demonstrated that the injury caused “abnormal behavior” over which he had “no or substantially limited control”. Jefferson v. Terry, 490 F. Supp. 2d 1261 at 1321. In addition, testimony from Dr. Gary Dudley prepared for trial court noted that although Jefferson’s decision making capacity was not impaired, he thought it worthwhile to conduct further evaluations to rule out brain damage which could impair behavioral patterns. Jefferson’s attorneys failed to pursue such testing noting that in later conversations Dr. Dudley had told them that further investigation would be a waste of their time (a sworn affidavit by Dr. Dudley denied such statements). Relying on findings crediting the trial attorneys own testimony with regards to their efforts to investigate Jefferson’s mental condition the trial court held that the attorneys made a reasonable investigation into his mental health. The Georgia Supreme Court affirmed, despite noting that court’s opinion relied on a witness “who did not testify” or participate in the proceedings. Jefferson v. Gant, 263 Ga. 316, 318.

A federal district court substantiated factual findings of the state court but held that counsel was ineffective and on appeal Jefferson defended these findings and argued that the state court’s factfinding was ‘dubious at best’. Noting an exception enumerated in Townsend v. Sain the Court emphasized that if a habeas applicant did not receive full and fair evidentiary hearing then federal court may hold such a hearing. 372 U.S. 293 (1963). The opinion specifically states that if any of the eight exceptions are applicable (as outlined in Townsend and later codified in §2254(d)) then the state courts factfinding is not presumed correct and the federal court is not duty-bound to accept any and all state-court findings that are supported by the record. The Supreme Court held that by only considering one of the eight exceptions the appellate court failed to correctly consider the legal status of the state court’s factual findings.

Judgment vacated and case remanded.

SCALIA, J. filed a dissenting opinion in which THOMAS, J. joined.

Decision available at:

Written by: Caitlin Huggins, CJS Summer Intern

Robertson v. United States ex rel. Watson No. 08–6261.

United States Supreme Court Decision: May 24, 2010

In a per curium decision with four dissenters, the United States Supreme Court ordered the petition dismissed as improvidently granted. Chief Justice Roberts wrote a dissent joined by Justices Scalia, Kennedy, and Sotomayor. Justice Sotomayor also wrote separately and was joined by Justice Kennedy.

Petitioner Robertson was convicted in the District of Columbia of criminal contempt initiated and prosecuted on behalf of Respondent Watson for violating a protective order after he assaulted her. However, before contempt proceedings were initiated, Robertson made a plea agreement dismissing any further action against him relating to the assault. Robertson appealed the conviction because it was barred by his plea agreement. The Court of Appeals affirmed the conviction, holding that Watson was acting in a private capacity and therefore not bound to the government’s plea agreement.

The Court originally granted cert to decide “[w]hether an action for criminal contempt in a congressionally created court may constitutionally be brought in the name and pursuant to the power of a private person, rather than in the name and pursuant to the power of the United States.” Although the Court gave no reason for its dismissal in the per curium order, it apparently agreed with the Solicitor General, supporting the respondent, Watson. The Solicitor General argued for dismissal because the issue presented was not properly argued or developed by the petitioner in the present litigation. Arguing before the lower appellate court, the United States asserted that Watson was acting in a purely private capacity in bringing the criminal contempt action against Robertson and therefore no constitutional protection applied. Although the lower court found that reasoning persuasive, the Solicitor General abandoned that argument before the Supreme Court—foreshadowing the Court’s eventual dismissal.

Case is available at:

Written By: Erin Magary, CJS Research attorney

Posted On: May 24, 2010

Findlaw Case Summaries: U.S. Supreme Court

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

May 24, 2010.

American Needle, Inc. v. Nat'l Football League, No. 08–661
In an antitrust action challenging the NFL's grant to Reebok of an exclusive license to create apparel incorporating the NFL's intellectual property, the Seventh Circuit's affirmance of summary judgment for defendants is reversed where the alleged conduct related to licensing of intellectual property constituted concerted action that was not categorically beyond the coverage of Section 1 of the Sherman Act. ..

Hardt v. Reliance Std. Life Ins. Co., No. 09–448
In an action alleging that defendant violated the Employee Retirement Income Security Act of 1974 (ERISA) by wrongfully denying her benefits claim, the Fourth Circuit's order vacating the district court's award of attorney's fees to plaintiff is reversed where: 1) a fee claimant need not be a "prevailing party" to be eligible for an attorney's fees award under 29 U.S.C. section 1132(g)(1); and 2) a court may award fees and costs under section 1132(g)(1), as long as the fee claimant has achieved some degree of success on the merits.

Continue reading " Findlaw Case Summaries: U.S. Supreme Court " »

Posted On: May 24, 2010

Findlaw Case Summaries: Constitutional Law

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

May 17-21, 2010

U.S. 1st Circuit Court of Appeals, May 17, 2010
Coggeshall v. Massachusetts Bd. of Registration of Psychologists, No. 09-1111
In plaintiffs' 42 U.S.C. section 1983 suit against the Massachusetts Board of Registration of Psychologists, claiming multiple challenges to the constitutionality of the Board's actions and the regulations involving plaintiff-psychologist's evaluation of a seven-year-old boy, district court's dismissal of the action is affirmed where: 1) the members of the Board, individually, are shielded from the damages claims by reason of quasi-judicial immunity; 2) district court's dismissal on abstention ground is affirmed as this case is a paradigm for Younger abstention; and 3) third party lacks standing to pursue his nonmonetary claims as he suffered no legally cognizable injury in fact as a result of the Board's actions.

U.S. 1st Circuit Court of Appeals, May 20, 2010
Gorelik v. Costin , No. 09-1192
In plaintiff's 42 U.S.C. section 1983 suit against the president of the New Hampshire State Board of Medicine, arising from the Board's mischaracterization of plaintiff's temporary license as disciplinary action rather than as "Board action" and posted on the Board's website and in newsletters, judgment of the district court is affirmed where: 1) the issuance of plaintiff's temporary license and the posting of the newsletter labeling it a "disciplinary action" occurred eleven years before filing of the complaint, which is well outside the limitations period; and 2) plaintiff has failed to identify any retaliatory decision or action by the Board in response to her attempts to avail herself of administrative remedies.

U.S. 2nd Circuit Court of Appeals, May 18, 2010
Adams v. Zelotes, No. 07-1853
In an action challenging the constitutionality of a Bankruptcy Code provision, 11 U.S.C. section 526(a)(4), alleging that the provision's prohibition on debt relief agencies advising clients to incur additional debt in contemplation of bankruptcy violated plaintiff's First Amendment rights, an injunction in favor of plaintiff is reversed where the Supreme Court's decision in Milavetz directly foreclosed plaintiff's as-applied challenge by narrowly construing the Bankruptcy Abuse Prevention and Consumer Protection Act to avoid his First Amendment complaint.

Continue reading " Findlaw Case Summaries: Constitutional Law " »

Posted On: May 24, 2010

Findlaw Case Summaries: Criminal Law and Procedure

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

May 17-21, 2010


U.S. 1st Circuit Court of Appeals, May 17, 2010
Parsley v. US, No. 09-1690
District court's denial of defendant's motion under 28 U.S.C. section 2255 motion to vacate his sentence for his drug related conviction is affirmed as the district court's conclusion that trial counsel did not render ineffective assistance are largely uncontested and not clearly erroneous. .

U.S. 2nd Circuit Court of Appeals, May 21, 2010
US v. Oluwanisola, No. 08-4442
Defendant's convictions for conspiring to import heroin into the U.S., conspiring to possess with intent to distribute heroin, and possessing heroin with intent to distribute are vacated where the district court erred in applying United States v. Barrow, 400 F.3d 109 (2d Cir. 2005), to whether certain evidence elicited at trial would open the door to the admission of proffer statements.

U.S. 2nd Circuit Court of Appeals, May 21, 2010
Johnston v. Maha, No. 08-6048
In a civil rights action regarding the conditions of plaintiff-inmate's confinement, plaintiff's motion for appointment of counsel in his appeal of a grant of defendants' motion for summary judgment is granted where plaintiff's claims met the threshold standard of likely merit and presented issues of substantial complexity such that appointment of counsel would be of significant benefit to the court.

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

Posted On: May 24, 2010

American Bar Association: Report of the Executive Director to the ABA Board of Governors

April, 2010

This Report of the Executive Director to the ABA Board of Governors* highlights issues related to ABA Membership, and Personnel, Also highlighted is an extensive list of Programs and Projects including those related to Bioethics and the Law, Center for Professional Responsibity, Criminal Justice, Family Law, Government Affairs, Immigration, Intellectual Property, Law Library of Congress, Mental Health and Disability, Rule of Law Initiative, Science and Technology Law, Substance Abuse, Women in the Profession, and many more. See the entire Report by clicking on the link below:

April 2010 Report of the American Bar Association Executive Director to the ABA Board of Governors
*Posted with the permission of the American Bar Association. Permission granted on May 24, 2010.

Posted On: May 21, 2010

U.S. Department of Justice Audits New York Police Interaction With Non-English Speakers

An abstract prepared for the Criminal Law Library Blog by Michael Chernicoff.

 Are language barriers playing a role in law enforcement?  The Justice Department has begun a “routine audit” in New York to determine whether federal civil rights laws were being complied with in police dealing with non‐English speakers. Such reviews have been regular since 2002 when the Justice Department required recipients of grants to provide services to no‐English speakers


Posted On: May 21, 2010

Broadening the Definition of "Sex Offender"

An Abstract prepared for the Criminal Law Library Blog by Michael Chernicoff.

The Adam Walsh Act [is] currently in place to protect children against abuse and child pornography and promote Internet safety is being used to classify criminals whose crimes were not sexual in nature as sex offenders. The Adam Walsh Act also requires information to be posted in an online sex offender registry.


Posted On: May 21, 2010

Judicial Diversity

Selections from the Brennan Center Fair Courts E-lert May 21, 2010.

Summarized news articles and editorials related to the independence of judges and the courts....:

1. A recent George Mason University study suggests that certain factors such as "support for diversity in the state's leadership," the "location of a judgeship," and the "history of diversity" have a significant impact on the success of efforts aimed at enhancing diversity on the state bench - this, irrespective of the judicial selection mechanisms used in a given state. In a broad survey of state trial court judges of color, the report's authors observed "that the varying selection mechanisms tend to operate to produce a surprising similarity in the processes, strategies, and experiences of judicial candidates . . . [R]ather than a specific selection mechanism, the judges [interviewed] overwhelmingly point to other factors - such as politics, networking, mentorship, and other resources as determinative of the ability of diverse candidates to become judges." The American Judicature Society has released another important study on judicial diversity, by Malia Reddick, Michael J. Nelson, and Rachel Paine Caufield. The AJS study explores the relationship between judicial diversity and the institutional, political, and legal environment in which judges are selected. Among other conclusions, the study reported that "Merit selection and pure gubernatorial appointment placed more minorities on high courts than did contested elections, while merit selection placed fewer women on intermediate appellate courts."

Linda M. Merola and Jon B. Gould, New Judges Speak about the Process and its Impact on Judicial Diversity, Judicature, March-April 2010; Malia Reddick, Michael J. Nelson, and Rachel Paine Caufield, Examining Diversity on State Courts: How Does the Judicial Selection Environment Advance - and Inhibit - Judicial Diversity, ABA Journal, Spring 2010.

2. According to figures cited by the Associated Press, Asian-Americans make up 5 percent of the population, comprise approximately 15 percent of all doctors, and yet remain underrepresented in the legal arena, comprising just 3 percent of all lawyers nationwide. "When it comes to lawyers becoming federal judges, which requires strong networks and political connections, Asian-American representation is even smaller," writes Jesse Washington at the AP. According to figures compiled by the National Asian Pacific American Bar Association (NAPABA), "ten of 875 active federal judges . . . are Asian-American" and of the 175 judges at the appellate level, only one, Danny Chin (confirmed just last month), is Asian.

Jesse Washington, Asian Judge Shows Community's Progress, Associated Press, May 14, 2010.

Posted On: May 21, 2010

ABA Journal Weekly Newsletter

Top Ten Stories for Week Ending May 21, 2010.

Legal Ethics
Law Firm Partner Accused of Putting Camera Under Employee's Desk
May 17, 2010 6:42 am CDT

Lawyer's C-Word Invective Spurs Criminal, Ethics Charges by Animal Rights Group
Lawyer Suspended Over DUI Arrests and Secret Sex Tapes
$9M Malpractice Suit Sparks Finger-Pointing Among Multiple BigLaw Firms
Business of Law
Kirkland & Ellis Is to Represent BP in Big-Ticket Oil Spill Litigation
May 18, 2010 4:22 pm CDT

Law Professors
Law Prof Decries 'Beauty Bias' and Killer Shoes, Suggests Legal Remedies for the Former
May 20, 2010 8:44 am CDT

Study Finds 'Unattractive Harshness Effect' for Uglier Defendants
Have JD, Now What? Many Law Grads Get Jobs, But Not Dream Careers
May 20, 2010 1:46 pm CDT

Business of Law
Ex-Law Partner Secreted Assets from Tennis Star Jimmy Connors, Suit Contends
May 18, 2010 12:04 pm CDT

National Security
Lawyer Catches ID Mixup Missed By 'Incredibly Bored' Screener at LaGuardia
May 18, 2010 3:02 pm CDT

Criminal Justice
Defense Lawyer Holds Possible Record for Most Clients Sentenced to Death
May 18, 2010 10:43 am CDT

U.S. Supreme Court
Supreme Court Says Life Sentence for Juveniles Not Charged with Murder Is Unconstitutional
May 17, 2010 9:21 am CDT

Kagan Docs Reveal: Warren Court Criticism, Millionaire Status, Skadden Arps Prep
Attorney General
A New Bybee Memo Surfaces--on Practices Authorized by Ariz. Immigration Law
May 18, 2010 7:10 am CDT

'Quotable Judge Posner' Is Law Prof's Life Project
May 19, 2010 12:25 pm CDT

Posted On: May 19, 2010

Department of Technology NYC: How Are We Doing?

An Internet Society NYC update with video:

ISOC-NY on May 8 2010, hosted a seminar "dot nyc - How are we doing?" at NYU. NYC Council Member Gale Brewer delivered keynote remarks, then vendor Eric Brunner-Williams of CORE Internet Council of Registrars revealed details of their proposal to the City, and Antony Van Couvering of Minds + Machines and Public Advocate Beill DeBlasio’s earlier comments to the City Council were shown in video. There was a discussion "What’s it for?" about possible applications - civic, community, commercial, and "outside the box" - for a local top level domain. Speakers included Tom Lowenhaupt of Connecting .nyc and Richard Knipel of Wikimedia NYC. Audio/video is available .

Posted On: May 19, 2010

Search and Seizure Evidence in the Computer Age: Fourth Amendment Implications

A program presented by the state trial judges during the 2010 Annual Meeting of the American Bar Association in San Francisco at the Marriott Marquis On August 5, from 1:30-4:30 p.m..

Attendees registered for the 2010 ABA Annual Meeting are invited to join the National Conference of State Trial Judges for an in-depth look at search and seizure of digital evidence and the Fourth Amendment implications. This program is designed to provide an understanding of the sources and types of digital evidence encountered in modern litigation, including the introduction of meta data; examine the approaches courts take to address the search and seizure of digital evidence; explore cutting-edge issues such as search and seizure considerations with cell phones, e-mails, virtual worlds, and the like; and discuss judicial management of cyber-crime cases.

The program will end with a final segment titled “Technology Tools for Judges,” that focuses on digital tools available for judges to use while dealing with electronic documents and data, and metadata, now so prevalent in the courts. Participants will learn the components of
Knowledge Management systems, how security issues have been treated, and the relative merits of generic search systems vs. legalspecific systems.

Posted On: May 18, 2010

Nylink To Close Its Operations In A Year

Many of us just learned the sad news that Nylink, which has served New York State Libraries for 37 years, is phasing out its operations and will be closing in one year. We understand that Nylink will be closing its operations primarily due to a steep decline in its revenue stream which has seriously degrated Nylink's ability to remain fully self supporting and continue delivering an acceptable level of service to its members beyond this period. Throughout the years many of us have come to rely on Nylink for its sustained high level of dedicated, personalized service. Nylink will be missed. We wish the employees a good 12 months and every success in the future

David Badertscher

For additional details see:

Letter to Nylink members from Executive Director W. David Penniman May 17, 2010

May 17, 2010 Press Release Announcing Nylink Closure in One Year.

FAQ Regarding Nylink Phasing Out Operations

Posted On: May 18, 2010

U.S. Supreme Court Update: Graham v. Florida No. 08-7412:

A Service from the ABA Criminal Justice Section,

Graham v Florida No. 08–7412.

United States Supreme Court Decision: May 17, 2010

In a 5-4 opinion by Justice Kennedy, the United States Supreme Court ruled that sentencing juveniles to life without the possibility of parole for non-homicide cases is impermissible under the Eighth Amendment’s cruel and unusual punishment clause.

Petitioner Terrence Graham was charged as an adult at 16 years old for the armed robbery of a barbeque restaurant in Jacksonville, Florida. Mr. Graham subsequently entered into a plea agreement and was sentenced to three years of probation. Less than six months later, Mr. Graham was arrested again for participation in a home invasion robbery. Mr. Graham’s probation officer filed a violation of probation affidavit alleging that Mr. Graham violated his probation by possessing a firearm, committing crimes and associating with persons engaged in criminal activity. Although Mr. Graham denied his involvement in the home invasion robbery, the trial court found him in violation of his probation for the aforementioned allegations and sentenced him to that maximum penalty, life in prison. Since Florida had abolished its parole system in 2003, Mr. Graham had no possibility of release unless he was granted executive clemency.

The Supreme Court granted cert and the case was argued in November 2009. The court, armed with amicus briefs from the American Medical Association , the American Physiological Association and the American Bar Association, discussed the developmental differences between adults and juveniles. The court held that “ the inadequacy of penological theory to justify life without parole sentences for juvenile nonhomicide offenders, the limited culpability of such offenders, and the severity of these sentences all lead the Court to conclude that the sentencing practice at issue is cruel an unusual”. The court referred to its holding in Roper v. Simmons 543 U.S. 551 (2005) where it found that juveniles were less culpable than adults and further concluded that because life with out parole is the maximum penalty for an adult nonhomicide offender having the exact same maximum penalty for a juvenile is impermissible under the eighth amendment.

The court did not address the constitutionality of life without parole for juveniles convicted of homicide offences. reversed and remanded.

KENNEDY, J., delivered the opinion of the Court, in which STEVENS, GINSBURG, BREYER, and SOTOMAYOR, JJ., joined. STEVENS, J., filed a concurring opinion, in which GINSBURG and SOTOMAYOR, JJ., joined. ROBERTS, C. J., filed an opinion concurring in the judgment. THOMAS, J., filed a dissenting opinion, in which SCALIA, J., joined, and in which ALITO, J., joined as to Parts I and III. ALITO, J., filed a dissenting opinion.

Case is available at:


Sullivan v. Florida 560 U. S. ____ (2010)

The United States Supreme Court also issued the following per curium opinion in a companion case to Graham. The case of Joe Sullivan, a thirteen year old sentenced to life without possibility parole, was dismissed but it is understood that ruling in Graham will allow Mr. Sullivan’s to re-appeal his case according to a statement by Mr. Sullivan’s Attorney Bryan Stevenson to the New York Times. “Mr. Sullivan’s lawyer, Bryan Stevenson, said his client and everyone else in his situation would be entitled to challenge their sentences under the Graham decision”

Per Curiam.

The writ of certiorari is dismissed as improvidently granted.

It is so ordered.

American Bar Association | 321 N Clark | Chicago, IL 60654 | 1-800-285-2221

For news commentary on this decision also see:


Justices Limit Life Sentences for Juveniles
Published: May 17, 2010
The ruling forbids sentences of life without parole for juveniles who do not participate in homicides.


Supreme Court restricts life without parole for juveniles
By Robert Barnes
Washington Post Staff Writer
Tuesday, May 18, 2010

Juveniles may not be sentenced to life in prison without parole for any crime short of homicide, the Supreme Court ruled yesterday, expanding its command that young offenders must be treated differently from adults even for heinous crimes.


Justices Rule on Prison Time for Juveniles, Sex Offenders
ByTony Mauro and Marcia Coyle
The National Law Journal
May 18, 2010

Posted On: May 17, 2010

U.S. Supreme Court Case Update: U.S. v. Comstock

A Service from the ABA Criminal Justice Section,

United States v. Comstock (No. 08-1224)

United States Supreme Court Decision: May 17, 2010

In United States v. Comstock (08-1224), the Court reversed and remanded the lower court’s decision ruling that federal officials can indefinitely hold inmates considered “sexually dangerous” after their prison terms are complete. Today’s Supreme Court opinion upholds the law passed by Congress allowing civil commitment of a federal prisoner who is a sex offender to continue beyond the date the inmate otherwise would be released.

The Adam Walsh Child protection and Safety Act, signed into law by President George W. Bush in 2006, authorized, in 18 U.S.C. § 4248, the civil commitment of “sexually dangerous” federal inmates already held in custody. This act provides authority to the government to have individuals either completing federal prison sentences or incompetent to stand trial, to remain in federal custody indefinitely if they are found through clear and convincing evidence to be a person who is legally “sexually dangerous.”

The Adam Walsh Child Protection and Safety Act was challenged by four men, who served prison terms for possession of child pornography or sexual abuse of a minor. When these four men were completing terms in federal prison, the federal government initiated civil-commitment proceedings stating they would be a risk of sexually violent conduct or child molestation if they were released. The four men moved to dismiss the proceedings on constitutional grounds that 18 U.S.C. § 4248 exceeded Congress’ powers under the Commerce Clause, the “clear and convincing requirement” did not meet due process standards, and that the section violated the Fifth, Sixth and Eighth Amendments of the U.S. Constitution. The federal district court ruled in their favor and granted a motion to dismiss.

The issue before the Supreme Court was narrowed to whether congress had the constitutional authority to enact 18 U.S.C. 4248 under the Necessary and Proper Clause and whether congress could authorize the civil commitment of a “sexually dangerous” person who is already in the custody of the Bureau of Prisons (but who are coming to the end of their federal prison sentences) or who are in the custody of the Attorney General because they have been found mentally incompetent to stand trial. The United States argued that this potential civil commitment is a “necessary and proper” exercise of federal power. Justice Stephen Breyer, writing the majority opinion stated, "[T]he statute is a 'necessary and proper' means of exercising the federal authority that permits Congress to create federal criminal laws, to punish their violation, to imprison violators, to provide appropriately for those imprisoned and to maintain the security of those who are not imprisoned but who may be affected by the federal imprisonment of others." Thus the Supreme Court concluded that the United States Constitution does provide legislative power for Congress to enact 18 U.S.C. § 4248.


A 7-2 decision with an opinion written by Justice Breyer. Justice Thomas dissented, Justice Scalia joined in part on Justice Thomas’ dissenting opinion. Justice Kennedy concurred in the judgment only, joined by Justice Alito.

Posted On: May 12, 2010

From: ABA Criminal Justice Section E-News

May 2010 (Vol. 5)

Excerpt from message of Chair,Charles Hynes:

The ABA Criminal Justice Section is the national entity that brings all the players in the criminal law arena together to address critical issues for the field. The focus of the Section is not only on policy development concerning those critical issues, but also on designing collaborative practical projects that help forge solutions to those systemic problems at the local and national levels. Our work on reentry and on the disparate racial impact of the criminal justice system are but two examples of how the CJS has developed cutting edge policy coupled with consequential project work. We are currently working on a project to address issues raised by the U.S. Supreme Court Padilla decision and have already developed a web resource page to assist attorneys in complying with the decision. Further, former Chair Stephen Saltzburg is forming a Task Force on Padilla which will strengthen resources to support the ability of defense lawyers to comply.

The Section also has a new project to create Model Racial Justice Task Forces in four selected communities across the country. The project is chaired by Third Circuit, U. S. Court of Appeals Chief Judge Theodore McKee and is seeking proposals from those in the criminal justice field to apply to be one of the communities receiving financial and technical assistance under the project. The application is available here.

In light of these and many other successful policies and projects, it seems appropriate to build on this momentum and get the word out to criminal justice practitioners who are not members of the Section about the outstanding programming and numerous other activities we undertake.

Posted On: May 12, 2010

Harvard Law School Library Joins the Chesapeake Project Legal Information Archive

Sarah J. Rhodes, Digital Collections Librarian at the Georgetown University Law Center writes: "The Chesapeake Project Legal Information Archive, now in its third year, is pleased to welcome a new law library partner. See the announcement below."


Cambridge, Mass. (May 9, 2010)--As the first annual National Preservation Week begins, the Chesapeake Project Legal Information Archive is pleased to announce that its digital preservation efforts are expanding with the addition of a new partner library, the Harvard Law
School Library.

By joining the project, the Harvard Law School Library is taking part in
the first collaborative digital preservation program of its kind in the law library community. Libraries participating in the project share costs, resources, and expertise to preserve important Web-published, born-digital legal materials within a shared digital archive.

"We are thrilled to become part of this project addressing the crucially important issue of preserving born-digital materials," said John Palfrey, Vice Dean of Library and Information Resources at Harvard Law School. "We feel fortunate to be participating in such a very relevant,
collaborative project, harnessing the economies of scale and benefitting from the training and expertise of our new partners who have already been working in this area."

The Harvard Law School Library is currently prioritizing content for preservation and will be developing its digital archive collections in the coming months.

The Chesapeake Project was launched by the Georgetown, Maryland State, and Virginia State Law Libraries in 2007 as a collaborative digital archive. Today, as the project expands with a new partner library, it is also working with the Legal Information Preservation Alliance (LIPA)
in the formation of the new Legal Information Archive, a collaborative digital preservation program for the law library community modeled after the Chesapeake Project.

For more information, visit the Chesapeake Project at or the LIPA Web site at Additional information about the first annual National Preservation Week is available at

Posted On: May 12, 2010

Important Information Resource on U.S. Supreme Court Nominee Elena Kagan

Many thanks to Luis Acosta of the Library of Congress for forwarding the following:

Elena Kagan Nominated to the Supreme Court:

On April 9, 2010 Justice John Paul Stevens announced that he would retire after nearly 35 years on the bench of the U.S. Supreme Court. President Obama announced the nomination of Solicitor General Elena Kagan to replace Stevens on May 10, 2010. This is President Obama's second nomination to the nation's highest court, following his selection of Justice Sonia Sotomayor in May 2009. Notably the first female Solicitor General and first female dean of Harvard Law School, if Kagan is confirmed, she will also be the fourth woman to serve on the Court.

To serve congressional and public requests for resources pertaining to this historic nomination, the Law Library of Congress has developed a web presentation on Kagan on its Supreme Court Nominations site Visit this presentation site to find out more about her work and background, including books and articles she has written as well as other related material including Congressional Documents, U.S. Supreme Court Oral Arguments, web resources, video, and related resources at The Law Library of Congress

Posted On: May 10, 2010

Q&A: Court Ordered Debt


On behalf of the California Administrative Office of the Courts, we would like to know if there are any courts in the United States that “sell” delinquent court-ordered fines, fees, penalties, and assessments. In specific, we are looking for criteria, and private vendors used, including pricing structure.


1. I asked one of my clients, a pre-eminent collections firm that also specializes in purchasing debt, how many government clients use this technique, and of those how many are courts. They replied that few (but a growing number) of government agencies are beginning to realize that this is a legitimate way to recover otherwise lost revenue, but the number of courts is painfully fewer.

Part of the reason is understandable ... the underlying nature of the debt has to be free of other legal encumbrances, such as terms and conditions of probation, drinking driver treatment program completions, etc., and ideally those debts that are dispositive solely by payment of the fine. This being said, that leaves a siginificant amount of court ordered debt that could or should fall into this category.

Since the street value and therefore the amount paid for old and uncollectable debt is low, it is best that courts exhaust all reasonable efforts to skip trace and otherwise seek compliance before this option is used. Thereafter, merely writing off the debt as a total loss is unwise if there is a way to recover some of the amount due.

2. Selling court debt that arises from a conviction for an offense is an appalling concept.

Generally, most court debt for an offense is discretionary, that is a judge exercised some discretion to establish the fine, etc., in a particular case. Generally, the court that entered the judgment retains the ability to exercise discretion in the interests of justice if the circumstances of the judgment debtor change following the entry of judgment. Typically it is a negative change in circumstances that is brought to the attention of the court in an enforcement action. The court may then adjust the debt to fit the new circumstance as appropriate.

Selling the judgment eliminates that discretion. While courts should vigorously enforce judgments entered for offenses, may even use private collection agencies, courts must also retain the discretion to deal appropriately judgment debtors in the interest of justice, not in the interest of a "bottom line."

3.And my recollection is that there is a [U.S.] Supreme Court decision that says in effect some who is fined must be given the equivalent of an installment plan (in the context of "you may not jail for failure to pay fine").**

*In deference to privacy and confidentiality concerns expressed by some readers, all references to personal names in the above responses have been deleted. This however does not detract in any way from our appreciation of the professionalism and generosity of spirit exhibited by those participating in this discussion.

** In part of an exchange resulting from the above discussion, Patrick H. Scott, Court Services Division, Arizona Administrative Office of the Courts sent the following additional material related to the U.S. Supreme Court decision mentioned in the above Q & A discussion. In his e-mail Patrick said he found this information at

The U.S. Supreme Court has placed limits on incarceration for nonpayment of fines. In Williams v. Illinois, 399 U.S. 235, 90 S. Ct. 2018, 26 L. Ed. 2d 586 (1970), the defendant, Willie E. Williams, was convicted of petty theft and sentenced to one year in prison and a $500 fine, the maximum sentence allowed under the applicable statute. When Williams was unable to pay the fine upon completing his year in jail, he was kept incarcerated to "work off" the fine at a rate of $5 a day. Williams appealed, and the U.S. Supreme Court ruled that, under the equal protection clause of the Fourteenth Amendment, no state may increase the sentence of a defendant beyond the maximum period specified by statute for failure to pay a fine.

Shortly after the Williams case, the Supreme Court ruled that a state may not convert a fine into incarceration if the conviction warrants only a fine. In Tate v. Short, 401 U.S. 395, 91 S. Ct. 668, 28 L. Ed. 2d 130 (1971), the defendant, Preston A. Tate, was unable to pay $425 in fines for traffic offenses and was committed to prison to work off his fine at a rate of $5 a day. The Supreme Court ruled that a state may not "impos[e] a fine as a sentence and then automatically conver[t] it into a jail term solely because the defendant is indigent and cannot forthwith pay the fine in full."

Neither the Williams ruling nor the Tate ruling prevents a court from imprisoning a defendant who is able, but refuses, to pay a fine. The court may do so after finding that the defendant was somehow responsible for the failure to pay and that alternative forms of punishment would be inadequate to meet the state's interest in punishment and deterrence (Beardenv. Georgia, 461 U.S. 660, 103 S. Ct. 2064, 76 L. Ed. 2d 221 [1983]).

In a case of willful nonpayment, the court may order incarceration for a period of time specified under statute. In Kentucky, a prison term of up to six months may be ordered if the unpaid fine was imposed for the conviction of a felony. Nonpayment of a misdemeanor fine may result in a prison term of up to one-third the maximum authorized term for the offense committed. For a violation, the maximum term is ten days. This amount can be cumulative. For example, if a person refuses to pay the fines for ten violations, that person can be incarcerated for one hundred days (Ky. Rev. Stat. Ann. § 534.060).

Fines are often used to pay for incarceration and other sentencing costs. In 1984, Congress passed the Comprehensive crime control act (codified in scattered sections of 5, 8, 29, 41, 42, and 50 App. U.S.C.A.), which established the U.S. Sentencing Guidelines Commission. According to section 5E1.2 of the act, a federal court shall impose a fine that is at least sufficient to pay the costs of imprisonment, probation, or supervised release order. Many states have followed suit, and fines are increasingly used to defray the costs of punishment.

Posted On: May 10, 2010

Findlaw Case Summaries: New York State Court of Appeals

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

May 6, 2010

City of N.Y. v. Maul, No. 65
In an action concerning the alleged failures of the New York City Administration for Children's Services (ACS) and the New York State Office of Mental Retardation and Developmental Disabilities (OMRDD) to fulfill their statutory and regulatory duties with respect to certain children in ACS's foster care system, the appellate division's order affirming the trial court's order certifying a class is affirmed where the appellate division identified four common allegations that transcended and predominated over any individual matters, which tended to establish a de facto policy followed by ACS of delaying the receipt of services as a result of its practices.

Zakrzewska v. The New School, No. 62
In an action asserting claims for sexual harassment and retaliation under the New York City Human Rights Law (NYCHRL), in which the Second Circuit certified to the Court of Appeals the question of whether the affirmative defense to employer liability articulated in Faragher v City of Boca Raton, 524 US 775 (1998) and Burlington Industries, Inc. v Ellerth, 524 US 742 (1998) applied to sexual harassment and retaliation claims under section 8-107 of the New York City Administrative Code, the court responded in the negative where subdivision 13 of section 8-107 of the NYCHRL created an interrelated set of provisions to govern an employer's liability for an employee's unlawful discriminatory conduct in the workplace, and this legislative scheme simply did not match up with the Faragher-Ellerth defense.

Continue reading " Findlaw Case Summaries: New York State Court of Appeals " »

Posted On: May 10, 2010

Findlaw Caselaw Summaries: Criminal Law and Procedure

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

May 3-7, 2010

U.S. Supreme Court, May 03, 2010
Renico v. Lett, No. 09–338
In a murder prosecution, a grant of petitioner's habeas petition is reversed where it was reasonable for the Michigan Supreme Court to determine that the trial judge had exercised sound discretion in declaring a mistrial, and thus the state court's decision was not an unreasonable application of clearly established federal law under a proper application of the AEDPA's deferential standard of review. .

U.S. 1st Circuit Court of Appeals, May 03, 2010
US v. Guzman, No. 08-1693
Conviction and life sentence of defendant for his role in an arson that killed a mother and her infant daughter are affirmed where: 1) there was no error in the denial of defendant's motion to suppress statements made to ATF agents; 2) there was no error in the court's exclusion of hearsay statements offered by defendant and limits on cross-examination; 3) district court correctly found a jurisdictional nexus with interstate commerce; and 4) defendant was properly sentenced as the district court's failure to explain the sentence was not plain error, correctly applied the sentencing guidelines and the life sentence was substantively reasonable.

U.S. 1st Circuit Court of Appeals, May 03, 2010
US v. Aranjo , No. 08-2307
Convictions of a former CEO of a federal credit union and her husband for conspiracy to embezzle and to make false entries, and other related crimes, are affirmed where: 1) the defendants' Batson claims are rejected as district judge did not clearly err in accepting the proffered reasons with respect to the government's peremptory challenge of an African-American juror; and 2) the husband's remaining claims are rejected as sufficient evidence supported his convictions.

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

Posted On: May 10, 2010

Findlaw Caselaw Summaries: Constitutional Law

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

May 3-7, 2010

U.S. 3rd Circuit Court of Appeals, May 04, 2010
Estate of Oliva v. Dep't of Law & Pub. Safety , No. 09-2082
In an action by the estate of a now deceased state trooper who committed suicide, claiming harassment by numerous individuals connected with the State Police for his objections to what he believed was a State Police practice to profile motorists when making traffic stops, a grant of summary judgment to defendants and denial of plaintiff's leave to amend his complaint is affirmed as plaintiff is not entitled to relief as he has failed to establish that his section 1981, 1985(3) and other various statutory causes of action can be sustained according to their requirements or establish that the district court abused its discretion in denying him leave to amend his complaint. ...

U.S. 3rd Circuit Court of Appeals, May 06, 2010
Dique v. New Jersey State Police, No. 05-1159
In plaintiff's Fourteenth Amendment claim for selective-enforcement, arising from his 1990 traffic stop that led to his conviction for drug related offenses which was vacated in 2002 on the ground that colorable issues of racial profiling existed at the time of the arrest, district court's dismissal of the claim as time barred is affirmed where: 1) under Wallace v. Kato, 549 U.S. 384 (2007), in a case of selective-enforcement, it will no longer be required that the complainant have been convicted and have had that conviction reversed, expunged or invalidated, and the statute of limitations begins to run at the time the claimant becomes detained pursuant to legal process; and 2) plaintiff asserted his selective-enforcement claim over two years after July 2001, when his attorney became aware of the extensive documents describing the State's pervasive selective enforcement practices, that plaintiff discovered, or by exercise of reasonable diligence should have discovered that h! e might have a basis for an actionable claim. .

U.S. 6th Circuit Court of Appeals, May 06, 2010
Flanory v. Bonn , No. 09-1161
In a pro se prisoner's section 1983 suit against various prison officials and others claiming violation of his Eighth Amendment right, dismissal of the complaint for failure to state a claim is reversed and remanded as plaintiff has made allegations which satisfy the objective and subjective components required for an Eighth Amendment violation as he has alleged that he was completely denied certain hygiene items and that he specifically was without toothpaste for a period of 337 days, and he also alleged that defendants were aware that he was without toothpaste and were deliberately indifferent to his hygiene needs.

Continue reading " Findlaw Caselaw Summaries: Constitutional Law " »

Posted On: May 7, 2010

Federal Conspiracy Law: A Sketch

CRS Report No. R41222; 4/30/2010; Posted 5/7/2010
Author(s): Charles Doyle, Senior Specialist in American Public Law
Subject(s): Criminal Justice; Law
No. of Pages: 9

Zacarias Moussaoui, members of the Colombian drug cartels, members of organized crime, and
some of the former Enron executives have at least one thing in common: they all have federal
conspiracy convictions. The essence of conspiracy is an agreement of two or more persons to
engage in some form of prohibited misconduct. The crime is complete upon agreement, although some statutes require prosecutors to show that at least one of the conspirators has taken some concrete step or committed some overt act in furtherance of the scheme. There are dozens of federal conspiracy statutes. One, 18 U.S.C. 371, outlaws conspiracy to commit some other federal crime. The others outlaw conspiracy to engage in various specific forms of proscribed conduct.General Section 371 conspiracies are punishable by imprisonment for not more than 5 years; drug trafficking, terrorist, and racketeering conspiracies all carry the same penalties as their underlying substantive offenses, and thus are punished more severely than are Section 371 conspiracies. All are subject to fines of not more than $250,000 (not more than $500,000 for organizations), most may serve as the basis for a restitution order, and some for a forfeiture order.

The law makes several exceptions for conspiracy because of its unusual nature. Because many
united in crime pose a greater danger than the isolated offender, conspirators may be punished for the conspiracy, any completed substantive offense which is the object of the plot, and any
foreseeable other offenses which one of the conspirators commits in furtherance of the scheme.
Since conspiracy is an omnipresent crime, it may be prosecuted wherever an overt act is
committed in its furtherance. Because conspiracy is a continuing crime, its statute of limitations
does not begin to run until the last overt committed for its benefit. Since conspiracy is a separate crime, it may be prosecuted following conviction for the underlying substantive offense, without offending constitutional double jeopardy principles; because conspiracy is a continuing offense, it may be punished when it straddles enactment of the prohibiting statute, without offending constitutional ex post facto principles. Accused conspirators are likely to be tried together, and the statements of one may often be admitted in evidence against all.

In some respects, conspiracy is similar to attempt, to solicitation, and to aiding and abetting.
Unlike aiding and abetting, however, it does not require commission of the underlying offense.
Unlike attempt and solicitation, conspiracy does not merge with the substantive offense; a
conspirator may be punished for both.

This is an abridged version of a longer report, CRS Report R41223, Federal Conspiracy Law: A
Brief Overview, by Charles Doyle.

Posted On: May 7, 2010

Postcard Campaign to Save New York City Libraries

The following is being posted as an urgent message at the request of a law librarian colleague :

As I am sure you know this year is on track to produce a budget disaster for libraries in New York City. The cuts currently proposed will result in massive layoffs and cuts in public service. A small group of library workers and concerned citizens has started a postcard campaign to highlight support for public libraries and ask the City Council to restore as much funding to library budgets as possible.

The idea is that we are going back to an old fashioned postcard writing campaign. Individuals are encouraged to write postcards in support of libraries and mail them to the offices of City Council Member Jimmy Van Bramer. His office will collect the postcards and present them to the City Council, en masse as a sort of Miracle on 34th Street statement. Any postcards will do. We suggest being creative, but inexpensive postcards, ten for a dollar in Time Square, work great too.

This effort was started by the group Urban Librarians Unite and is now being endorsed and supported by Queens Library Guild Local 1321, Metropolitan New York Library Council (METRO), and Desk Set. It is not a part of the formal campaigns by the city public libraries, and it is our intention to augment, not compete, with those official efforts. We are asking you to pass the word to your members, encourage them to solicit postcards, and promote the campaign. As we move forward we hope to organize events including a possible read-in to support New York City libraries.

The deadline for sending postcards to Council Member Van Bramer is Tuesday, June 15. But, of course, there is no time like the present for information profession and librarian colleagues to support one another.

Thank you for your time and consideration. I hope that you will ally yourself with us as we fight for every dime we can get for public libraries in the city.


Christian Zabriske
Urban Librarians Unite

Posted On: May 7, 2010

Ray Simon's Commentaries on the New York Rules of Professional Conduct

A publication announcemenrt from the New York Professional Responsibility Report (NYPRR)

Comparing The New York Rules of Professional Conduct
to The New York Code of
Professional Responsibility
By Roy D. Simon

A collection of ten articles- 138 pages- by Professor Simon on the new New York Rules of Professional Conduct, appearing exclusively in NYPRR and on

This handbook by Professor Roy Simon contains his exclusive commentary on the differences between the Rules and the outgoing Code. The commentary is built on a Correlation Chart developed by Professor Simon comparing each provision of the Rules with the corresponding provisions of the Code and its ECs.

Professor Simon begins with a Correlation Chart comparing the new Rules to the old Code and proceeds through a collection of brilliant articles dissecting every provision of the Rules.

Complete Handbook: 138 pages, spiral bound… $19.95

Roy D. Simon, Howard Lichtenstein Distinguished Professor of Legal Ethics at Hofstra University School of Law. He served as vice chairman of the NYSBA Committee on Standards of Attorney Conduct (COSAC), the committee which initiated the process by which the new Rules of Professional Conduct were adopted. He is editorial advisor and a monthly contributor to NYPRR.

Posted On: May 7, 2010

Brennan Center: Judicial Selection in the States

From: Fair Courts E-lert, May 7, 2010
Published by the Brennan Center for Justice, New York University School of Law.

1. Show Me Better Courts, a Missouri organization seeking to replace the state's merit selection of judges with contested judicial elections, claims to have raised $1.5 million "to gather petition signatures" to put the organization's proposal for a constitutional amendment on the November ballot. In a conference call with reporters, director of the organization James Harris said he expected "another $2 million to $4 million will be spent on the fall campaign if enough signatures are valid." Missourians for Fair and Impartial Courts, "the group leading opposition to the measure," and defending the so-called "Missouri Plan" has thus far raised approximately $268,000.

Dave Helling, The Battle Over Missouri's Courts: A Million Dollar Bash, Kansas City Star, May 3, 2010.

2. "Echoing Justice Ruth Bader Ginsburg and retired Justice Sandra Day O'Connor, [Justice John Paul] Stevens suggested that the federal system of appointed judges who hold life tenure promoted judicial independence better than popular election of judges, the practice in many states." Stevens criticized the practice of electing state judges while at a conference of judges and lawyers in the federal Sixth Circuit, in Columbus, Ohio.

Jess Bravin, Justice Stevens: To Life, To Life, L'Chaim, Wall Street Journal, May 5, 2010.

Posted On: May 7, 2010

ABA Journal Weekly Newsletter for Week

Top Ten Stories of the week ending May 7, 2010:

Stevens Explains Death Penalty Stance, Bow Ties
May 6, 2010 7:05 am CDT

Lawyers Spot Justin Bieber on Flight, But Didn't Recognize Justice Stevens
Kagan Has Her Supreme Court Interview; Short List Said to Be Shorter
As 'Troubling Indicators' Mount for 2010 Law Grads, an ABA Expert Issues a Warning
May 6, 2010 7:35 am CDT

Would-Be Law Student Sets Up Paypal Account, Asks for Tuition Donations
Law Schools
Law Dean Boycotts US News Rankings
May 5, 2010 5:30 am CDT

Bad News for Laid-Off Associates: BigLaw Is Shunning You, Recruiter Says
May 5, 2010 6:00 am CDT

First Amendment
Comedian Wins Defamation Suit Over Mother-in-Law Jokes
May 5, 2010 7:27 am CDT

Legal Technology
7th Circuit Warns of Dangers of Computers and Tequila, But Gives E-Filer a Pass
May 5, 2010 10:46 am CDT

Constitutional Law
Judge Jails Courtroom Observer for Wearing Raunchy T-Shirt
May 5, 2010 7:01 pm CDT

Business of Law
Insurers Outraged at Law Firm's Suits to Collect Very Small Amounts of Money
May 3, 2010 5:41 pm CDT

Work/Life Balance
List of Top 10 Family-Friendly Law Firms Has Only Four Repeats
May 3, 2010 7:53 am CDT

Attorney Fees
Lehman and GM Bankruptcy Charges: $2,100 for Limo Rides, $48 to Leave a Message

Posted On: May 7, 2010

Some Good News About Law Libraries in Connecticut

Jonathan Stock who along with others has been working tirelessly to save six threatened law libraries in Connecticut from closure due to financial constraints. Here is Jonathan's latest report, received as an e-mail on May 6, 2010.:

The Connecticut General Assembly closed down last night. We now know that the bill, its substance merged with the 2011 Budget, passed. You will find herein as an attachment [ see download link below] the latest bulletin from the Judicial Office of External Affairs. We have saved at least three of the six threatened law libraries: Bridgeport, Litchfield, and Hartford. Depending on the Branch's negotiations with the Department of Public Works, we may also get back the Willimantic Law Library as well as the Willimantic Courthouse.

The good news Jonathan writes about would not have occurred without his continuing, tireless efforts along with those of many other people and organizations such as the American Association of Law Libraries (AALL), Southern New England Law libraries Association (SNELLA).
You may also want to review other postings on this blog regarding efforts to save law libraries in Connecticut:

Separation of Powers Regarding Judicial Funding in the State of Connecticut

Help Save Connecticut Courthouse Libraries By Spreading the Word

Click on the below link to download the document referenced in Jonathan Stock's e-mail:

Connecticut Judicial Branch - External Affairs Division - 2010 Legislative Session Update Number 5 May 5, 2010

David Badertscher

Posted On: May 6, 2010

OCLC Discontinuing Access to NetLibrary Database on May 30, 2010

NYLINK reports that on May 30, 2010 OCLC plans to discontinue access to the NetLibrary database on, WorldCat Local and WorldCat Local “quick start” on May 30. This database of NetLibrary metadata was released in July 2009 to facilitate discovery of NetLibrary eBooks and eAudiobooks through services. Discontinuation of the discrete NetLibrary database is a result of the March 2010 acquisition of NetLibrary by EBSCO Publishing. For more information, please see the NYLINK Status Line blog at

Posted On: May 6, 2010

The State of Criminal Justice 2010

New publication from the American Bar Association, Criminal Justice Section

The State of Criminal Justice 2010

Edited By Myrna Raeder

Find out recent developments and trends in the criminal justice field.

Authors from across the criminal justice field provide essays on 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 Criminal Justice Section's work, the publication serves as an invaluable resource for policy-makers, academics, and students of the criminal justice system alike.

The 2010 volume contains 19 chapters focusing on specific aspects of the criminal justice field, with new addition of full text and reports of all of the adopted official ABA policies passed in 2009-2010 that address criminal justice issues.

Regular Price: $29.95
Section Member Price: $24.95

8 1/2 x 10 - Paperback
360 pages
Product Code:

Posted On: May 6, 2010

OCLC and Cassidy Cataloging Services, Inc.- Re: OCLC WorldCat Local

By Joni L. Cassidy
Cassidy Cataloging Services, Inc,

On March 17, 2010, my post about and OCLC included the following statement:

“OCLC and Cassidy Cataloguing Services, Inc. may finally reach a compromise. OCLC may grant permission to allow a WorldCat Local institution that has purchased Cassidy MARC record sets to view the records as part of its WorldCat Local subscription.”

Cassidy Cataloguing is very happy to report that we have signed an agreement with OCLC that enables us to display our records in WorldCat Local for Cassidy subscribers using that service as their OPAC. The records will only display to users of that institution’s WorldCat Local OPAC and will not be available to other libraries, or other commercial members, for copy cataloguing or to attach holding codes.

Cassidy Cataloguing will continue to upload P-CIP (cataloging-in-publication) MARC records into WorldCat on a monthly basis. Cassidy Cataloguing has also been offered the right to edit their records uploaded to WorldCat without having to relinquish the rights to them.

If you need additional information, please contact us at

Posted On: May 3, 2010

Book Review: Capitlal Punishment on Trial

TITLE: Capital Punishment on Trial
SUBTITLE: Furman v. Georgia and the Death Penalty in Modern America
AUTHOR: David M. Oshinsky
PUBLICATION DATE: April 14, 2010
PUBLISHER: University Press of Kansas
PAGE COUNT: 160 pp.
ISBN: 978-0-7006-1711-1 (Paper)
978-0-7006-1710-4 (Cloth)
PRICE: $14.95 (Paper)
$29.95 (Cloth)

Oshinsky , a Pulitzer-prize winning historian at the University of Texas, summarizes the tangled web of legal arguments for and against the death penalty in modern American justice. He focuses on the brief period of time during the 1970s in which capital punishment was banned by the U. S. Supreme Court, how the prohibition occurred, and how it ended as suddenly as it began. Highlighting the case that brought about the temporary halt to executions, the author details the appeal of William Henry Furman and how a deeply-divided Supreme Court concluded that a process so pervasively riddled with discrimination and arbitrary standards violated the Eighth and Fourteenth Amendments. Oshinsky concludes that it was exactly this determination by the Court in 1972 that precipitated the reinstatement of the death penalty four years later by requiring the elimination of capricious and discriminatory standards from state death penalty statutes. The author describes the current Supreme Court as bitterly divided over the concept at a conceptual level, as Justices continue to struggle with the legal implications of a process that attempts to impose uniform standards and guidelines while at the same time pursues what Oshinsky believes to be an arbitrary, and thereby imperfect, formula for death that is the hallmark of the past. He argues that the issue is far from settled, as a stream of reports and findings portray the current system as racially biased, weighted against the poor, marred by substandard defense attorneys, expensive to maintain, and subject to intolerable error. The book is aimed at an academic audience and is thus recommended mainly for college, university, and law libraries.

Philip Y. Blue, New York State Supreme Court Criminal Branch Law Library, First Judicial District, New York, New York


We are never paid to do a review. We never accept money to review a product or service. We invest our own time to review and test products.