False Conviction Syndrome

A University of Michigan study looks at wrongful convictions in America, and reaches predictable conclusions:

[University of Michigan Law Professor Samuel] Gross co-authored a report on the database that pulls together statistics on exonerations from January 1989 through February 2012. While the database is constantly updated and new exonerations are being added all the time, the report focuses on the 873 individuals whose cases had been filed before March. Gross and his report co-author, University of Michigan law school graduate Michael Shaffer, discovered correlations in the types of crimes and reasons for wrongful convictions.

• Fabricated crimes.False convictions in child sex abuse cases were usually due to fabricated crimes; sometimes a divorced parent told a child to make up lies about an ex-spouse abusing them, or police or a therapist convinced a child to say something that wasn't true.
• Eyewitness mistakes. In adult rape cases, for example, false convictions were typically based on eyewitness mistakes, "more often than not, mistakes by white victims falsely identifying black defendants," the report said.
• Misconduct by authorities. For homicides, misconduct by authorities was the second-biggest cause of false convictions, just behind false eyewitness accounts.

(Via MSNBC)

 - Garry J. Wise, Toronto

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Court Not Impresssed by Righthaven "Business Model"

Via Yahoo Finance:

Court orders from today and Thursday make it clear that the judge overseeing the Hill case has great distaste for Righthaven’s sue-first-ask-questions-later business model. The problem for Righthaven is that the same judge—U.S. District Judge John Kane—is handling all 58 of the lawsuits the company has filed in Colorado.

And Judge Kane is decidedly unimpressed:

"[W]hether or not this case settles is not my primary concern. Although Plaintiff's business model relies in large part upon reaching settlement agreements with a minimal investment of time and effort, the purpose of the courts is to provide a forum for the orderly, just, and timely resolution of controversies and disputes. Plaintiff’s wishes to the contrary, the courts are not merely tools for encouraging and exacting settlements from Defendants cowed by the potential costs of litigation and liability.

- Garry J. Wise, Toronto

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U.S. Mortgage Foreclosure Dismissals: Soaring?

Washington Post reports a mind-boggling statistic:

[Long Island Judge Jeffrey] Spinner and some of colleagues in the New York City area estimate they are dismissing 20 to 50 percent of foreclosure cases on the basis of sloppy or fraudulent paperwork filed by lenders.

- Garry J. Wise, Toronto

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Ohio AG: No Foreclosure 'Do-Overs' For Banks

Via Susie Madrak at C&L:

For the past few weeks, there have been far too many reports that indicated banks with fraudulent mortgage documentation were going to get away with a rap on the knuckles. Looks like at least one state attorney general isn't going along with that plan:

In two letters released Friday, Attorney General Richard Cordray criticized a number of banks and loan-servicing companies, including Wells Fargo & Co.; Ally Financial Inc.'s GMAC Mortgage; Bank of America Corp.; and J.P. Morgan Chase & Co. Mr. Cordray said the banks are trying to paper over fraud committed in foreclosures with temporary fixes that don't address underlying problems in the banks' practices.

"It is not acceptable for a party who believes they submitted false court documents to merely replace those documents. Wells Fargo and any other banks are not simply allowed a 'do-over,' " he wrote in the letter to Wells. The other letter was sent to Ohio judges, who were asked to notify Mr. Cordray when banks file substitute affidavits.

He demanded that the banks vacate any court order or motion that was based on improper paperwork. In an interview Friday, Mr. Cordray said the banks would "be well-served to work out a settlement with the borrowers to modify the loans and work out payments."

..."The banks are committing fraud on the court, essentially perjury, and then saying 'Whoops! You caught me! Here's some different evidence and use that instead,' " Mr. Cordray said in an interview Friday. "I know a lot of judges are not going to take kindly to that."

- Garry J. Wise, Toronto

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Judge: Keep it Short 'n Sweet (The Rules You Must Meet)

(Now, perhaps I should tweet)

Via Legal Skills Prof Blog

An attorney filed a 465 page complaint (including an 8 page title!) in a Washington state federal district court against defendant GMAC Mortgage, et al. whom, not surprisingly, responded with a Motion for a More Definite Statement. ...[T]he judge ended his order with the following rhyme:

Plaintiff has a great deal to say,
But it seems he skipped Rule 8(a),
His Complaint is too long,
Which renders it wrong,
Please re-write and re-file today.

...You can read Judge Leighton's full order here.

- Garry J. Wise, Toronto

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New York Court Rule To Require Lawyers to Certify Foreclosure Document Accuracy

New York's lawyers are about to become the Empire State's de facto filter against mortgage foreclosure proceedings based on faulty bank documentation.

A new court rule, announced yesterday, will require lenders' lawyers in foreclosure proceedings to personally certify the accuracy of the documentation relied upon in foreclosure proceedings.

New York Times reports:

The chief judge of New York’s courts implemented a new rule Wednesday requiring every lawyer handling a foreclosure to sign a form verifying that all paperwork in the case is accurate.

...Lawyers already have an obligation to ensure that the documents they present to the court are valid, but New York Chief Judge Jonathan Lippman said having them sign a document affirming that all papers received a proper review will hold them accountable as never before.

...The rule applies to both new cases and the 78,000 foreclosure actions already under way in New York courts.

Lawyers handling pending foreclosure actions will probably need to go back to their clients and verify that all proper steps were followed, the judge said. The form, which is being created by the court, requires lawyers to give the name of the bank employee who affirmed that the records were accurate and the date the conversation took place.

In related news that highlights the deep potential of widespread clouds on title in the wake of the American foreclosure mess, Washington Post reports:

The country's largest title insurer said Wednesday that banks and other lenders must vouch for the accuracy of their mortgage documents before the firm will write insurance for a foreclosure sale.

- Garry J. Wise, Toronto

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Where Judicial Dignity and Stand-Up Comedy Intersect

Judicial ethics panels tend to frown...

Via Law.com:

A judge walks into a bar and launches into a stand-up routine. The bartender asks, "Is this a joke?" The judge says, "Let me check with the Advisory Committee on Extrajudicial Activities."

That's not exactly how South Hackensack, N.J., Judge Vincenzo Sicari -- alias comic "Vince August" -- got into an ethics pickle. But he did make the inquiry, and the outcome wasn't so funny: The panel that regulates New Jersey municipal judges' moonlighting said he can't decide cases by day and do shtick by night.

Sicari, though his term on the bench ends Dec. 31, isn't taking the ultimatum lying down. He's asked the state Supreme Court for review, and the justices on Oct. 8 agreed to hear the case, In the Matter of Opinion No. 12-08 of the Supreme Court Committee on Extrajudicial Activities, A-23-10

- Garry J. Wise, Toronto

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Top Ten Obscure U.S. Marriage Laws

Did you know:

In Truro, Massachusetts, a groom-to-be must "prove himself manly'" prior to marriage by hunting and killing either six blackbirds or three crows. Manly is a good thing. Dead birds? Not so much

See Woman's Day: 10 Obscure Marriage Laws in the U.S. - Find out about the most unusual matrimonial rules on the books

(h/t Family Law Prof Blog)

- Garry J. Wise, Toronto

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No Pledge, No Service

A lawyer in Mississippi has been found in contempt of court for refusing to say the Pledge of Allegiance:

Lampley told The Northeast Mississippi Daily Journal he respected the judge but wasn't going to back down.

"I don't have to say it because I'm an American," Lampley told the newspaper. "I'm just not going to back off on this."

Jurisprudence in the United States has long held that the Pledge of Allegiance cannot be made mandatory (most recently in Lane v. Owens in 2003, where the ACLU sued the state of Colorado over a new state law requiring schoolchildren to recite the Oath), but admittedly almost all of that caselaw is based around reciting the Pledge in schools.

That having been said, it's hard to argue that rights of dissent and free expression given to schoolchildren cannot also apply to those present in a court of law.

(Unless the judge rules otherwise?)

- Christopher Bird, Toronto

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From An Employee Handbook in America

A mega-media company where management just wanted boys to be boys, I presume:

“Working at Tribune means accepting that you might hear a word that you, personally, might not use,” the new handbook warned. “You might experience an attitude you don’t share. You might hear a joke that you don’t consider funny. That is because a loose, fun, nonlinear atmosphere is important to the creative process.” It then added, “This should be understood, should not be a surprise and not considered harassment.”

Apparently the lawsuits that followed didn't turn out quite the way the old boys had hoped.

(via Atrios)

- Garry J. Wise, Toronto

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N.C. Student Suspended for Nose-Piercing, Claims Discrimination

She belongs to the Church of Body Modification.

Yes, it really exists.

More from CBS News.

- Garry J. Wise, Toronto

Update - October 8, 2010

Overlayered has seen this Church before.

Update - October 10, 2010

Via MSNBC:

RALEIGH, N.C. — An attorney says a federal judge has ordered a North Carolina school to admit a 14-year-old student suspended for wearing a nose piercing she says is part of her religion. Attorney Jon Sasser says U.S. District Judge Malcolm Howard announced the decision Friday.

- GJW

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Facebook, My Space and Pre-Sentencing Reports

From Law.com, a very thorough survey of the emerging importance of defendants' social media postings in sentencing dispositions by U.S. criminal courts:

Embarrassing Facebook photos and regrettable MySpace statements are starting to become commonplace in pre-sentencing reports and disposition hearings. At the same time, defendants and their advocates are acknowledging the power of social media as a tool to generate mitigating evidence.

...How deeply must defense attorneys delve into social media in representing their clients at sentencing? The U.S. Supreme Court in Townsend v. Burke, 334 U.S. 736, 741 (1948), cautioned that defendants ought to be guarded from punishments based on false or misleading information. It would seem that this injunction compels counsel to challenge sentencing information drawn from the social centers of cyberspace.

Due process must temper the unchecked use of aggravating social media evidence at sentencing, as well as arraignment and other proceedings. At the same time, these online forums are opening unprecedented opportunities for developing mitigating evidence that can provide courts with a fair picture of the person appearing for sentence.

Read the article by Ken Strutin, director of legal information services at the New York State Defenders Association: The Role of Social Media in Sentencing Advocacy.

- Garry J. Wise, Toronto

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"From Writer's Block to Cell Block"

A chronically overdue Michigan court reporter has been sentenced to thirty days in the slammer for contempt of court.

More from ABA Journal: Court Reporter Tossed in Jail for Missing Transcript Deadlines, Fleeing Courthouse

- Garry J. Wise, Toronto

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Videotaping On-Duty Police Officers in America

Radley Balko, senior editor at Reason Magazine summarizes the law on videotaping on-duty police officers in the various American states:

This summer the issue of recording on-duty police officers has received a great deal of media attention. Camera-wielding citizens were arrested in Maryland, Illinois, and Massachusetts under interpretations of state wiretapping laws, while others were arrested in New Hampshire, Ohio, Oregon, Florida, and elsewhere based on vaguer charges related to obstructing or interfering with a police officer.

So far Massachusetts is the only state to explicitly uphold a conviction for recording on-duty cops, and Illinois and Massachusetts are the only states where it is clearly illegal. The Illinois law has yet to be considered by the state's Supreme Court, while the Massachusetts law has yet to be upheld by a federal appeals court. Maryland Attorney General Douglas Gansler recently issued an opinion concluding that arrests for recording cops are based on a misreading of the state's wiretapping statute, but that opinion isn't binding on local prosecutors.

- Garry J. Wise, Toronto

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Judging The Price of Incarceration

Missouri judges are now able to utilize a new software tool when considering sentencing decisions: Missouri Tells Judges Cost of Sentences

(Via New York Times)

- Garry J. Wise, Toronto

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California's Proposition 8 Restriction on Gay Marriage Ruled Unconstitutional

A California federal court today ruled that the State's voter-enacted ban on gay marriage is unconstitutional.  The full ruling of U.S. District Court Judge Vaughn Walker is below:

- Garry J. Wise, Toronto

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Conrad Black: The Birth of a Liberal?

Conrad Black reflects, after two years inside the U.S. penal system:

"In my 28 months as a guest of the US government, I often wondered how my time in that role would end. I never expected that I would have to serve the whole term, though I was, and am, psychologically prepared to do so," he wrote in the piece that discussed his final hours behind bars.

"Now that I have learned more of the fallibility of American justice, which does convict many people, who, like me, would never dream of committing a crime in a thousand years," he wrote.

...Black also spoke of seeing "the failure of the US War on Drugs, with absurd sentences, (including 20 years for marijuana offences, although 42 percent of Americans have used marijuana and it is the greatest cash crop in California)."

A trillion dollars, he noted, have been spent on the effort by US authorities, but the only result has been illegal substances in question being "more available and of better quality than ever, while producing countries such as Colombia and Mexico are in a state of civil war."

- Garry J. Wise, Toronto

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When Courts Are Not Colour-Blind

Via Steve Benen:

"Someone accused of killing a white person in North Carolina is nearly three times as likely to get the death penalty than someone accused of killing a black person, according to a study released Thursday by two researchers who looked at death sentences over a 28-year period."

- Garry J. Wise, Toronto

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Conrad Black Granted Bail

MSNBC reports:

Jailed former newspaper magnate Conrad Black was granted bail on Monday , weeks after the U.S. Supreme Court kicked his 2007 fraud conviction back to a lower court.

Last month, the Supreme Court weakened the "honest services" law that was central to Black's fraud conviction. The justices left it up to a lower court to decide whether the conviction should be overturned.

Black, who has served more than two years of a 6 1/2-year sentence at a low-security federal prison in Florida, was also convicted of obstruction of justice after jurors saw a video of him carrying boxes of documents out of his offices, loading them into his car and driving off with them. The documents were sought by government investigators.

- Garry J. Wise, Toronto

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McClatchy: Criminal Charges Likely In Gulf Oil Catastrophe

Marisa Taylor of McClatchy Newspapers:

WASHINGTON — Federal investigators are likely to file criminal charges against at least one of the companies involved in the Gulf of Mexico spill, raising the prospects of significantly higher penalties than a current $75 million cap on civil liability, legal experts say.

...Such a likelihood has broad legal implications for BP and the two other companies involved — not the least of which is the amount of money any responsible party could be required to pay. The White House is asking Congress to lift the current $75 million cap on liability under the Oil Pollution Act of 1990, but there's no cap on criminal penalties. In fact, prosecutors in such cases can seek twice the cost of environmental and economic damages resulting from the spill.

- Garry J. Wise, Toronto

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