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What Happened at the "Incident"?

An editor of the Daily Business Review must have been asleep when he let this article receive approval for publication:

Southern District of Florida Judge Shelby Highsmith and a U.S. Marshals Service deputy are drawing criticism for intervening in a personal dispute involving the judge's clerk and her daughter at a downtown Miami store.

The incident is raising eyebrows in the legal community as well as questions about whether Highsmith may have violated judicial canons by misusing his judicial powers.

Sounds interesting.  I wonder what Judge Highsmith and the federal agent did.

Both Highsmith and an unidentified deputy showed up at the store during the incident, flashed their government identifications, and began questioning store employees and asking for their addresses.

What was the incident?  More:

The incident occurred in December, but it only recently came to light when the city's Civilian Investigative Panel took up the issue Aug. 15, after Highsmith filed a complaint against a Miami police officer who responded to the scene.

The officer, Michael Ragusa, was cleared of charges of discourtesy.

What was the incident?  Please, please, please tell me!

Both Highsmith and an unidentified deputy showed up at the store during the incident, flashed their government identifications, and began questioning store employees and asking for their addresses.

Again, would someone (like, say, the writer!) please tell me what happened during the incident?  The article continues:

The incident occurred in December, but it only recently came to light when the city's Civilian Investigative Panel took up the issue Aug. 15, after Highsmith filed a complaint against a Miami police officer who responded to the scene.

Please read the rest of the aricle and tell me if you can figure out what happened at the incident.

PMBR Ordered to Pay $11.9 Million to NCBE

PMBR is a bar-review course that prepares law graduates to take the MBE portion of the bar exam.  The MBE consists of 200 multiple-choice questions.  The bar examinee takes one hundred questions in the morning, takes a two-hour-or-so break, and then returns to take one hundred more questions.  Most bar examinees consider the MBE to be the most-difficult aspect of the bar exam.

The MBE is also the most pointless part of the bar exam, as it has little to do with the lawyer's craft - issue spotting and legal writing.  But it's something bar examinees have to live with.

Thus many of them turned to PMBR, which advertised itself as being as close to the real thing as possible.  In a recent court opinion, a judge concluded that many of PMBR's questions are not close to the real thing: They're clones of the real thing. 

He thus ordered PMBR to pay $11.9 million to the National Conference of Bar Examiners - the copyright holders of the MBE questions.  Here's the story.

During the trial, the judge learned that PMBR's instructors themselves failed the MBE.  From this, he concluded:

"Given that these individuals are highly paid to prepare students to take (and presumably to pass) the bar exam, their failure rate is strikingly high. Mr. Feinberg, for example, failed five consecutive bar examinations in Alaska before barely passing in February 2004," Fullam wrote.

"Perhaps even more startling, Ms. Zimmerman twice failed the Kentucky bar examination despite passing the essay portion, because her scores on the MBE were so low," Fullam wrote.

Zimmerman testified that she failed because the MBE "is quite a difficult examination," but Fullam said her explanation "speaks poorly of either her professional qualifications or her credibility as a witness."

Umm, no.  While I have no inside knowledge of PMBR's practice, I am willing to bet that their MBE test-taking strategy goes thusly:  The instructors, along with several employees take the MBE in several different states.  Each of them is responsible for memorizing, say, ten questions in the morning, and ten questions in the afternoon. 

GIven that the MBE is three hours, they have a lot of time to memorize your ten questions.  (Then, during the break, they write down their memorized questions.)  But they don't have time to do well on the test.

So of course they're going to fail!  After all, they're not there to take the test.  They're there to memorize the questions.

So I don't think it's probative of competency that PMBR's instructors themselves failed the MBE.  I do think their failing is probative of copyright infringment. 

When Complaints and Briefs Don't Match

Robert Chavis filed a criminal complaint against Karl Schenk.  After the complaint was dismissed, Chavis filed an affidavit claiming that Schenk had committed perjury.  Can Chavis sue?  A unanimous three-judge panel of the Eighth Circuit Court of Appeals said, No.  Was the panel correct?

Let's narrow the legal issue to find out.  At issue in Schneck v. Chavis (CA8) was whether.... Well, we don't know the issue for sure.  Schneck's appellate brief brilliantly argued that:

Prosecutors enjoy immunity for prosecutorial acts. But, the delivery of an Affidavit to a State Court Clerk for public filing in a closed criminal file, after case dismissal, while purporting to act under color of law, and while nothing is pending, is not a prosecutorial act.

This would be one way around prosecutorial immunity.  (On the flip side, Chavis would be absolutely immune for filing the criminal complaint.)  But while the plaintiff's appellate brief strongly argues that issue, the plaintiff's other document seemed to support a different legal theory.  Thus, Judge Lay wrote for the panel:

The paramount task we must first address is identification of the issue presented on appeal.  [Ed's note: Namely, whether Chavis sued Chavis sued Schneck for filing the complaint, or for making false statements in the affidavit.]

A close review of 1) the Schenks’ Complaint in this case, 2) the district court’s statement listing the Schenks’ claims, 3) the district court’s analysis under the heading “Regarding the Sworn Complaint,” and particularly 4) the district court’s citation to Document 50, Exhibit 16, which is the Complaint and not the Affidavit, reveals what is at issue in this case: whether summary judgment on the question of absolute or qualified immunity for signing the criminal Complaint was appropriate. Each of these documents indicates that the Schenks’ original claim was that Chavis violated Schenk’s constitutional rights by filing the Complaint, not by filing the Affidavit of Probable Cause.

Ouch! --- The plaintiff might have won had his arguments been better-framed in the lower court.  How sad.

A Right to Subpoena a Detective's Computer?

More evidence has been released in the Duke LaCrosse case (Via Overlawyered).  Included in this batch of recently-released evidence is a damning police report:

[T]he sergeant’s case notes also recount what the nurse told him in response to his questions: that the woman appeared to be in so much pain that it took “an extended period of time” to examine her, and that the “blunt force trauma” seen in the examination “was consistent with the sexual assault that was alleged by the victim.” About a week later, the sergeant met with the Durham County district attorney to go over the case.

That's some report.  There are two problems with this.  First, in the actual medical report, the nurse seemed almost blasse about the complaining witnesses' [non?]-injuries, reporting: "some swelling, no visible bruises."  How do you go from "some swelling" to "blunt force trauma"?  That's quite a change.

Second, the report was not released to the defense until July 17th - well after the defense had presented its trial strategy to the press, and had discussed the nurse's medical report. In other words, the report is a nice refutation of the defense's arguments. 

Everyone is wondering why the report wasn't released much earlier.  After all, didn't Mike Nifong say, months ago, that all relevant discovery information had been handed over to defense lawyers?  This police report is certainly relevant.  Why then was it released several months after his statement?

Was Nifong lying when he said that he had complied with all of his legal obligations?  Or did the report somehow get "lost in the shuffle?"  The defense has a right to know.  Nifong and the report's author should be held to answer in an evidentiary hearing.

Here's what the defense would like to know about the report: When was it typed?  What edits were made to the report?  When, most importantly, were those edits made?

Assuming the report was prepared on a computer, all of this information can be readily ascertained by examining the word-processing program used to draft the report.  Heck, as the police are fond of saying, since there's nothing to hide (right?), why not turn this information over?

I suspect that the report was drafted after-the-fact, and that it contains several lies.  But how can anyone prove this?  The detective will take the stand and say that everyone he wrote in his report was true.  When asked about when the report was drafted, or what edits were made, he'll say whatever he needs to say to remain consistent with the prosecution's theory of the case.  That's distrubing. 

Under Franks v. Deleware, the defense is entitled to an evidentiary hearing where there is evidence that a police officer perjured himself in his search-warrant affidavit.  Perhaps, in cases where substantial suspicion surrounds the veracity of a police report, the defense should be entitled to the file history of a police report.  Call it a Franks hearing for the 21st Century.

Any ideas under what constitutional basis this could be argued for?

David Sheehan/Saeed R Sehizadeh, Spammer-At-Law

We all get a lot of spam.  Usually I just delete it and move on.  But just now I received a particularlry irksome piece of spam:  In the blog's inbox came this bit of spam from a lawyer:

Subject line: Wrongful Death Case.

As a Personal Injury Lawyer practicing in the PI field, I know the challenges facing all of us as we try to bring in more business and have a stream of new clients.... 

Join the largest network of personal injury lawyers while it is still free. Once we are on the first page of Google, you have to pay a premium to become a member. Enjoy the most sophisticated listing at the most sophisticated network of Personal Injury Lawyers in the nation: [redacted], where we continue to offer free membership.

Here is a summary of the benefit of your membership...

 Sincerely, David Sheehan, Attorney ...

After some digging, I learned that David Seehan is a lawyer.  But his real name is Saeed R Sehizadeh.

Now I recognize that everyone has to hussle.  But spamming?!  Aren't there other ways of doing business?

In any event, Mr. Sheehan did three things wrong.  First, his subject line was misleading.  The e-mail had nothing to do with a "Wrongful Death Case."  Rather, it was a commerical solicitation.  Likely, Mr. Sheehan wanted to trick his e-mail's receipients into thinking a potential client, rather than a spammer, was e-mailing him.

Second, since Mr. Sheehan sent the e-mail to the Crime And Federalism inbox, it appears he is harvesting e-mail addresses from law blogs.  In other words, he's a professional spammer.

Third, he sent spam to a computer-savvy blogger.  Big mistake - times two.  I found his e-mail addresses, which I am going to share.  And now anyone looking for information on David Sheehan will learn that he's a spammer.  [Ed's Note: Mr. Sheehan, if you apologize to me and everyone else you spammed, then I will delete this post.  Otherwise, anyone Googling you will know that you are a spammer.]

Given that Mr. Sheehan is a spammer, he should have no moral objection to my publicizing his e-mail for the spammers who, like him, crawl C&F.  His e-mail address for his new association is: [email protected].  On his built-by-a-high-school-student website, he refuses to list his e-mail address.  Perhaps because he is trying to avoid spammers such as himself?  In any event, here is his other e-mail address: [email protected].

Is "Hot Air" a Matter of Public Concern?

A Brooklyn prosecutor, Robert Reuland, wanted to hype his upcoming book.  Like most New York lawyers, he was prone to bullshit overstatement.  In an interview with New York magazine, he said of his burrough:

Brooklyn is the best place to be a homicide prosecutor [because] we've got more dead bodies per square inch than anyplace else.

His superiors got upset with this statement - first because it was false, and second because it made it seem like the lawyer was more interested in trying cases (for his own glory) than he was with the harm murder victims and their families suffered.  So they demoted him.

Was that overly harsh?  Sure.  It was a the type of silly overreaction government bureacrauts have every day.  But Reuland turned his demotion into a constitutional case.  And a split panel of the Second Circuit agreed with him in Reuland v. Hynes (here).

Brief summary of the law.
Government employees, unlike you and me, have limited First Amendment rights when discussing job-related topics.  Generally, a government employee's speech is free only when he is talking about a matter of public concern.  Courts will sift through the speech asking whether it was a matter of public, or private concern.  It's a sticky distinction, but an example helps clear the mud.

Imagine a prosecutor is required to work long hours but isn't given a raise.  He writes a letter to the editor complaining about his situation.  He doesn't note that his office is understaffed.  He just complains.  Now imagine a different prosecutor writes a letter to the editor noting that he was passed over for promotion because he was black - and that his supervisor has passed over several qualified black applicants.

Can you see the difference between complaining about a personal slight, and informing the public about a matter of public concern?

Assuming the employee's speech is a matter of public concern, the court will balance, under two leading Supreme Court cases (Pickering and Connick), the interests of the employee in commenting upon matters of public concern against the interest of the government/employer, in promoting the efficiency of the workplace.  In other words, even public-concern speech might lead to discipline if the speech prevents the government agency from getting its job done.

In reality, under Pickering and Connick, courts tend to ask this question: Was the speech more valuable than the harm it caused?  Thus, a police officer who discusses rampant corruption in his police department will likely be protected under the First Amendment, even if his speech causes substantial dispution.  In government-employee cases, speech is free only if it is valuable.

The split-panel's decision.
The split panel concluded that homicide rates are matters of public concern.  The court also held that the speaker's motive for speaking does not resolve the public-concern issue.  Thus, the fact that Reuland made his (false) statements only because he wanted to hype his book doesn't mean his speech is a matter of personal, rather than private concern.  [Ed's note: This is an important, if somewhat small, doctrinal development, and worth further exploration by a law student looking to write a law review article.]

Thus, Reuland's speech would be protected unless it was too disputive. Unfortunately, the panel does not apply Pickering balancing, as the defendant's trial lawyers waived the issue at trial.  (!)  Thus, given that murder-rate-related speech was a matter of public concern, the panel held that Reuland's First Amendment rights were violated when his supervisor punished him.

The dissent.
Judge Winter's dissent was powerful, and persuasive.  Although several pages long, its first sentence summarizes it brilliantly:

A prosecutor's statement to a magazine about homicide rates within his jurisdiction is not protected by the First Amendment when it was admittedly false, admittedly made without any belief of a basis in fact, and made to promote sales of the prosecutor’s novel.

The dissent should have carried the day.  Although murder rates are a matter of public concern, untruthful crime statistics is worthless speech.  The public did not benefit or learn anything from Reuland's speech.  Reuland was simply blowing hot air in an attempt to boost his book sales.

The First Amendment was not vindicated in Reuland v. Hynes.  Instead, the split panel allowed a lawyer who used his official office to hype his book, to reap a financial windfall.

Pain and Suffering Damages Will Lead to Pain and Suffering has this story about a lawyer's attempt to change tort law as it applies to loss of one'sBest_3_3 animal.  He wants to make it so that you can sue for "loss of companionship" damages when your dog is harmed through veterinary negligence. 

Under existing law, one can sue for loss of companionship when someone negligently or intentionally harms your spouse or child.  You can't, however, sue for loss of companionship when someone harms your best friend - even when your best friend is a dog.

As an animal lover, I respect the activist's sentiment.  But ultimately it will do allowing these suits would cause much more harm than good.

Before changing existing law, you must first show a problem.
Are veterinarians running wild, negligently and recklessly killing animals?  If there isn't a vast record of veterinarian malpractice, why should existing law change?  Ultimately, tort law should decrease human suffering.  So if vets are causing significant human suffering by untimely killing animals, the law should be changed.

But proponents of changing existing law have offered no such evidence - probably because they can't!  Of course there are incompetent vets, but competent vets far outnumber the incompetent ones.  Indeed, having had dogs for most of my life, and having visited with many different vets, I'd more willingly place my dog's life in the hands of a vet, than I would place my own life in a doctor's hands.  I think vets are better at taking care of dogs than doctors are of taking care of people.

Existing law would increase health costs, thus leading to more human suffering.
My dog is a high energy Austrian shepherd.  When he was neutered and had fresh stitches, he tried running and jumping.  We literally had to drug him to keep him from re-opening his stitches.  Given his breed and crazy energy levels, there is about a 90% chance that, in a few years, he will need hip surgery.

Do you know how much this will cost?  Five-thousand dollars.  That's it.

Now, the wife and I are far from rich, so $5,000 is still a lot of money for us.  But for an advanced operation, that's very inexpensive.

One reason this operation is so inexpensive is because vets can not be sued for veterinary malpractice.  They thus don't have to spend tens-of-thousands or hundreds-of-thousands of dollars on malpractice insurance.

As every business owner knows, increases in overhead leads to increased costs to the consumer.  Vets would have to charge more for their services.  How much more?  Who knows, but for every price increase, there would be a consumer priced out of getting that operation for his pet.

Without hesitation, my wife and I do whatever we needed to do if that was what we needed to do to save our dog.  But what about people who don't have access to savings, a 401(k), or a friend or relative who would help out?

They'd have to euthanize their dogs.   

In the tort reform debates, far too many claims are overstated.  But there's no overstatement here: Allowing loss of companionship suits in animal tort cases would literally mean that more dogs would die.

Al Gore: Do As I Say...

... not as I do.  (Via Ted Frank)

As I'm not prone to blogging political subjects, this was not a cheap shot at Gore.  My point was larger. 

Al Gore is a member of the elite.  People like him want to regulate just about everything average Americans do.  At the same time, they ignore (or find ways around) those laws.   (Granted, carbon-neutral living is not a law, but even if it were, Gore would find a way around it.)  Thus, Gore's behavior goes to the fundamental fairness of the very laws he supports.

If people like him refuse to obey the laws (or find ways around them), is such a law fair?  If a law is unfair because it regulates the conduct of some, but not all, similarly-situated people, should the law ever have been enacted?

Thus, those of us who lack Gore's money and social standing should be very concerned when he refuses to abide by the same standards he would have everyone else comply with.  Gore and his ilk want to sets of laws: One for the rich and powerful, and one for everyone else.