As I read through my Newfeeds in Opera I get a bunch of ideas that I want to share with you all. Unfortunately by the time I have worked all day and read through the 75 or so blawgs, I am out of time to write. By the time the weekend comes around some of the stuff I read gets stale. Anyway I am going to try to do something pithy with this weekends best feeds and see if you like it. So HERE WE GO:
Family Law Profs have a note about a recent Georgia legislative proposal: reduce child support payments if the "out of custody" parent spends more than 90 days with the kids. The post can be found here. Of course I can see this as being a problem with deadbeat parents who will spend all the time they can as long as they don't have to give any money to their ex-spouse. I have a better idea. If the "out of custody parent" spends more than 90 days with their kids, they get to take a tax credit for the dependent child.
Professor Berman over at Sentencing Law and Policy offers very complete coverage of Tennessee v. House. House is a death penalty case that asks "what right a defendant has if DNA evidence indicates that he may actually be innocent." House's conviction was definitely based on circumstantial evidence. It was also pretty damaging circumstantial evidence. Part of that evidence was blood found on his pants that matched the victims. Of course it turns out that the prosecutor's poor handling of the evidence may have (and probably did) contaminate the pants with the victims blood. (Now before you all go saying that I always fault the prosecution, if the defense had the only chance to preserve a piece of evidence and screwed it up I would be just as hard on them.)Thereafter the prosecutor's theory that the defendant's semen was on the victims panties and nightgown goes down the tube when we find that previously unavailable DNA testing proves the seman belongs to the victims husband (who was a suspect too, originally.) Now add on that the defendant has a prior violent sex history, and that he's a stranger to the town and you can see where there might be a conundrum. The constitutional problem is that there has been no ruling that innocence is enough to negate a jury finding of guilt and sentence of death. Fundamental fairness (which is what most of us would like to think our Constitution is about) would seem to dictate that there is a right to a re-trial and a right to have the evidence evaluated. Constituional stare decisis does not dictate that however. On the other hand if one believes the Bill of Rights should be interpreted to protect the liberty or the individual, then it seems that equities are in favor of the defense. This is a tough case however. If you really want to learn about many of the issues facing the SCOTUS and law in general in a non arcane case, look at Professor Berman's blog on this case. Read all the primary and secondary sources he offers you. Too bad I am going to be busy this week, it would be nice to go to DC and see the court work with this case.
Blonde Justice gives us a look at how cases get assigned in her office at this post. Blonde works in a vertical system and she got to handle her cases from start to finish. I worked in a horizontal system. I would have preferred a vertical system but I can tell you the cases got to the best lawyers anyway. Not only that, but the cases did get attention between dates. Nevertheless, I still think vertical is the way to go.
Blonde's discussion is both interesting and important in light of the SCOTUS decision to take on U.S. v. Gonzalez-Lopez which asks: should a district court's denial of a criminal defendant's qualified right to be represented by counsel of choice require automatic reversal of his conviction? The case is an interesting set of facts. I feeel that short of a very good reason, a Client should be able to have any attorney he can pay for. I think that the Sixth Amendment's right to counsel means counsel of your choice if you can afford it. The reasons that the district court posits in refusing to allow a pro hac vice admission just don't cut it for me. The attorney they denied was probably overly aggressive. Get into a scrap with the US Government and you will understand that over aggressiveness is nearly impossible to avoid much less attain. There is no time to go through all the twists but suffice it to say the judge in this case, by his impossible pro hac decisions predestined the conviction here. The ruling that really bugs me is that co-counsel cannot communicate with co-counsel by note passing during cross. Hey you know, a criminal trial is not grade school. It is about protecting someone's rights. I want the help of any co-counsel I have. I have seen this before and just will never understand it. In the unlikely event I ever become a judge and I make a ruling like that (assuming that the lawyers didn't disrupt the proceedings) somebody show me this column. You can read all about this case by going to the Medill Law School SCOTUS site.
Ok, I still have to get a couple of things done over at Long Island (criminal) Trial Law, and there are Christmas decorations to take down, but I have only one more thing to say:
Since when did Ted Kennedy think he had the right to question ANYBODY ELSE'S CREDIBILITY? I mean really. Before you can question someone's credibility shouldn't you have some of your own? Hey Teddy what did ever happen to Mary Jo? When Teddy tells the truth about that, he can start commenting about the credibility of Judge Alito.