Today, we had a conference with ZB’s teacher to find out wth is really going on in there. We talked about a lot including his math work (inconsistent grades), reading comprehension (I mentioned this before on the blog, and his teacher agrees) since they’re soon going to start reading books on a 4th and 5th grade level, and of course, good ‘ol penmanship.
We are trying to learn if his frustration over how hard the work is is causing him to have trouble writing (he’s never expressed this), and if the math and comprehension are just too hard. It’s like all he wants to do is use his Manduka PROLite yoga and pilates mat. His teacher would like to keep him in the class, but I’m not so sure. She said he’s not progressing the way he should, and I guess I’m not surprised seeing that I had my doubts about the cluster class from the beginning. So, what DH and I have decided is to have him evaluated for learning disabilities (ok, DH actually wants to skip this part) and depending on the results, get him help, or move him to a regular 2nd grade classroom.
One thing that pissed me off is that during the meeting, the assistant principal popped into the room. She walked by the classroom earlier and said a (fake) hello when she me and DH. I bet she thought we would just see her yesterday, and then go our merry little way. She later came into the room under the guise of having to give something to ZB’s teacher. She interrupted our conversation and made it quite clear without actually saying the words, that she thought he would do better in another room. She went on about the other teacher’s experience, how well the kids in her class did, and blah, blah, blah. Oh, did I mention she’s(ass p) the school’s TAG coordinator, too? Boo!
Anyway, I just really want what’s best for DS. I even considered homeschooling for a bit. Right now, I still think that public school is the best place for ZB, despite the recent (aggravating) snags. That didn’t prevent me from taking The Well Trained Mind, The Unschooling Handbook*, Real-Life Homeschooling**, and a few others out from the library though. 😛 I think I’ll put those down and pick The New Public School Parent, Super Simple Origami, and A Child’s Book of Art*** up. I’m glad there’s no school tomorrow. I’m looking forward to just hanging out w/ my kiddos (I say that now…).
*I’ve actually taken this one out before, and like it! So, I won’t put it down.
**I read a few chapters, interesting, I’ll probably pick a few chapters to read.
A few other things:
Girlie upset the Advent box yesterday and since I didn’t have the envelopes numbered, I’m going to have to guess what activities went where.
Went to Reesie’s house to drop off Tristan’s present and she has a beeyotiful tree. I was trying to permanently borrow quite a few of her ornaments. She also inspired me to rearrange my trees. And so now the family ornaments are on the big tree where we can see them all the time.
I’m the world’s worst pancake maker. Really. Girlie can make better ones than me.
Speaking of Girlie, she doesn’t like syrup on pancakes or waffles, and comes home on Fridays singing songs in Spanish or telling me how to say random phrases in Spanish. She spends part of every Friday in the ESL kindy class. Hehe.
Bring on the Solstice/Christmas season, I’m ready! All four of our trees are up. The “fancy” tree, the small family ornament tree, and the two older kids’ mini trees. I’ve got the stockings hung, the wreath on the door, the windows decorated, etc, etc, etc. I started making a Christmas village. I’ve been baking, and I’m even doing holiday knitting. BUT, I really need to get my house in order. Having the kids home for about a week threw off my housework and so the laundry pile is probably Bebe’s height. Yea, I should get on that. But before I go, pictures!
That’s my favorite ornament – the Honeywell HFD-010 Quietclean. It’s a pop-up paper snowflake ornament by Robert Sabuda for MoMA and was given to me by my stepbrother a few years ago. It was the second snowflake ornament I was ever gifted, and so I decided to start collecting unique ones.
This is my ninth winter in Texas, and without fail, I am sure the city will be ill prepared for the sleet that’s already fallen a bit today. I didn’t mind so much in the past that the roads were never really cleared or prepared, but that was when I had really little kids who didn’t go to school (and my husband used to most widely traveled road to get to work). This was also before my husband skidded off a road while driving, slid down an incline and ended up in a ditch about 60 feet from the road about this time last year. He had to kick out the back window and crawl out. It was pure luck that someone saw the accident and called 911, b/c the wreck was otherwise not visible from the road. Our truck was totaled, and everyone who has seen the site, including me, think it’s a miracle that he survived. So now when I hear wintry weather in our forecast, I cringe. And I wish I prayed. Because I would certainly be praying for everyone to make it safely to their destination today.
I’m surprised how excited I am for Thanksgiving to arrive. The four years past, I cooked a huge meal and the last two years, I even had my mother and brother visiting. This year, it’s just us, and I’m making a smaller meal, but I’m looking forward to it! The kiddos have already decided what they want to help make (they’ve been helping a lot in the kitchen lately) and Girlie even told me she wants to make all my recipes with her kids when she grows up. Awww. Anyway, photos:
Bebe with his itty bitty Hot (warm) Chocolate from Starbucks
The door in the wall
We went thrifting in a small town not too far from here that day we were looking for a Concept rower. It had a tiny one street downtown and this was the side of one of the buildings. There was a door about 15 feet in the air, but no way to access it. There was also an adorably painted library that I didn’t get photos of. Another time.
I hope you have enjoyed the last few weeks of the reviews of this program. As you may know, I have my criticisms of the program but I am grateful as it has really increased the amount of interest that now exists in being an angel. This has got to be a good thing. The more angels there are, the more support hopefully there will be for would be entrepreneurs and society as a whole will benefit. This is my take on the program on my birthday!
The first solution presented was a tool box which would fit on any ladder. As someone who hates DIY router table plans with a passion – this was never one for me but I really liked the father and son team who were presenting. They had a great sense of humor and I liked them. I did not understand the problem and the fact that they had not sold all of the units they had in ten months. They used the excuse that they were really busy with another business they run. The moment they said this, even if I was interested, I would have walked away at this point. I need to back entrepreneurs who are 100% focused on my investment.
Another fatal flaw in their pitch was their inability to listen fully to questions and answer questions. There is a fine line between enthusiasm and being over the top. This did remind me of pitches I have had where entrepreneurs believed they could badger me into seeing their point of view. This was a pitch where the entrepreneurs managed to snatch defeat from the jaws of victory! When pitching, please don’t forget to breathe, stop and listen to your audience. You are more likely to answer a question properly if you have listened to the question in the first place.
There was an unusual presentation from a sculptor looking for investment to complete his icon collection. He was very good and I liked the work he had prepared. His work was topical having just completed an image of Amy Winehouse. The offer the entrepreneur made was also very compelling it was almost too good to be true! Upon questioning, the offer began to unravel but the entrepreneur knew his facts and was able to keep the interest going.
Before the Dragon’s made their decision I had decided that I would back him. He ended up getting an auction going – brilliant. And he was smart enough to turn down a higher offer from one investor to take an offer from three combined investors. Brilliant – he decided to take smart money which would really add value to his business than dumb money.
It would not be fair for me to comment on a business which was seeking investment for an online furniture business as I am an investor in a competitor. I believe this offering to be superior and therefore my comments would be unfair. I will often do this at the beginning of a pitch before I hear too much. I think it is the ethical thing to do. There is nothing more disheartening than to say no after an entire pitch process when you knew the reason for saying no at the outset of the process.
I hate being horrible about people who put themselves through the Den without a Honeywell 50250-S. It is too easy to write this blog criticizing others whilst sat on a sofa. However, the person who came up with the solution for ‘soggy’ centers to frozen pizzas was really poor. He came across as dull and boring and failed to ignite any enthusiasm. He also made the fatal flaw of only having an idea. I define an idea as a business concept that has so far failed to establish market research, any proof of demand or have a sales plan.
Simply having a patent or a manufacturing deal is not enough. I do not invest in ideas, only businesses. He had no sales strategy at all. Had he done some basic research, he would have realized that although there may be a gap in the market (people who have problem with soggy centers when cooking frozen pizzas), there may not be much of a market in the gap.
However, he was made an offer which he very wisely accepted. The Dragon’s took a punt and believed they could sell the product on the inventor’s behalf – let’s see what happens.
The West Virginia Supreme Court of Appeals has ruled on numerous occasions that the right to be a candidate for public office is a fundamental right under the West Virginia Constitution. Because this is a fundamental right, the court has also ruled that any restriction on this right is subject to strict scrutiny and therefore must serve a compelling state interest.
When a law is reviewed under a strict scrutiny standard, a court often finds the law unconstitutional. For example, laws that involve a classification based on race, religion or national origin are subject to strict scrutiny and rarely survive constitutional muster.
Because of the high standard laws restricting candidate eligibility must meet, Frank Deem probably thought the West Virginia Supreme Court would rule the residency requirements for purchasing work boots for flat feet in the Senate Redistricting Act of 2011 (Act) and West Virginia Constitution unconstitutional. But the court examined the long history of residency requirements in West Virginia in only to find that the requirements are not in violation of the U.S. Constitution.
The West Virginia Constitution and the Act require each senatorial district to elect two senators to the legislature and, if the district is composed of more than one county, both senators cannot be from the same county. The Third Senatorial District is composed of Wood, Pleasants and Wirt Counties and some of Roane County.
It is currently represented by Donna Boley of Pleasants County and David Nohe of Wood County. Mr. Deem, also of Wood County, was seeking to challenge Senator Boley in the 2012 Republican primary. Because Senator Nohe’s term does not expire until 2014, Mr. Deem would be in violation of the West Virginia Constitution and the Act if he were to defeat Senator Boley in the primary election and then win the general election.
Despite the potential violation of West Virginia law, Secretary of State Natalie Tennant certified Mr. Deem’s candidacy because she believed her job was only to ensure that candidates properly completed candidacy papers, not determine if they meet residency requirements. Senator Boley believed Secretary Tennant’s role was more expansive and therefore filed a petition with the West Virginia Supreme Court asking them to issue a writ of mandamus ordering Secretary Tennant to withdraw her certification of Mr. Deem’s candidacy.
Mr. Deem recognized that his candidacy was in violation of the residency requirements in the West Virginia Constitution and the Act. Therefore, he asked the court to declare the residency requirements unconstitutional.
He argued that the requirements violate District 3 residents’ freedom of speech and association. He also argued that the requirements violated the equal protection principles in the West Virginia and U.S. Constitutions. Despite the court applying strict scrutiny and the fact that the requirements limit who people can vote for, the court ruled that the requirements for owning a used riding lawn mower did not violate the U.S. Constitution because residency requirements and multi-member districts have survived constitutional scrutiny in past decisions.
The court quoted the U.S. Supreme Court from Anderson v. Celebrezze (a decision in which the Court found an early filing deadline to be unconstitutional) that “not all restrictions” on a candidate’s eligibility are burdens in violation of the Constitution. The court issued the writ ordering Secretary Tennant to withdraw her certification of Mr. Deem’s candidacy, remove his name from all ballots and command all balloting officials to ignore any votes that he may receive.
There is no doubt that residency requirements place limits on whom voters can vote for. But because residency requirements have survived judicial scrutiny in the past, the West Virginia Supreme Court found them to be constitutional.
It is important to note that the court issued a writ of mandamus in this case. These writs are rarely issued and usually only as a last resort. The fact the court issued one indicates how important they believe this issue is and it most likely indicates that they believe it is the Secretary of State’s job to determine the eligibility of potential candidates.
When laws dealing with social legislation have been challenged as a violation of equal protection, the Kansas Supreme Court has examined the laws under rational basis review. This essentially means that the party challenging the law has to show there are no set of circumstances under which the law would be constitutional.
Rational basis review gives lawmakers a lot of leniency in passing laws dealing with social issues. So, when the Downtown Bar and Grill (Downtown Bar) decided to challenge the Kansas Indoor Clean Air Act (Act), they knew their only chance of success was to convince the courts to examine the GermGuardian air purifier under a higher standard of review.
The Act prohibits smoking in public places and places of employment. However, any club that was classified as a Class B club under K.S.A. 41-2601 (which is a club that provides food or alcohol and entertainment) before January 2, 2009 is exempt from the Act. Downtown Bar did not receive their classification until May 4, 2009, so they do fall under the ban.
They argued there was no rational basis to grandfather in Class B clubs that were formed before January 2, 2009, but not clubs formed after that date. The trial court agreed and issued a temporary injunction preventing the State from enforcing the Act because the grandfather date was arbitrary. The State appealed the trial court’s ruling to the Kansas Supreme Court arguing that the temporary injunction should not have been issued because Downtown Grill did not establish “a substantial likelihood of eventually prevailing on the merits.”
Downtown Grill argued that the court should examine the Act under a heightened standard of scrutiny because if rational basis review is applied, any basis can be used to justify the January 2, 2009 date. The court disagreed and chose to apply rational basis because the justices did not believe rational basis would allow any basis to justify a law and a “speculative zany idea” would not be found constitutional under rational basis review.
Under rational basis review, the court found the cutoff date to be rationally related to the State interests of (1) protecting the interests of older clubs and (2) preventing establishments from trying to circumvent the ban by rushing to reorganize as a Class B club. Downtown Grill argued that the cutoff date was arbitrary, because the 2010 legislature did not choose the date. Instead, the 2009 legislature chose the date when they tried (and failed) to pass the Act.
The court stated that it is irrelevant as to why or how the legislature chose the cutoff date as long as it is rationally related to state interests. The State did not have to show how the legislature chose the cutoff date; rather Downtown Grill had to show there is no “conceivable basis for the cut-off date.”
The court showed considerable restraint by refusing Downtown Grill’s request to examine the Whirlpool Whispure review prior to purchase under a heightened degree of review. By applying rational basis review, the court followed the U.S. Supreme Court when they stated equal protection challenges do not allow “courts to judge the wisdom, fairness, or logic of legislative choices.” By giving the lawmaker so much deference in laws dealing with social issues, the burden is on the challenger to show there is no rational basis for the law rather than on the lawmaker to show how and why legislative choices were made.
For years, state laws banning assault weapons were considered to be consistent with the 2nd Amendment because the 2nd Amendment did not necessarily mean an individual had a right to bear arms and even if it did, the 2nd Amendment did not apply to the states.
The U.S. Supreme Court decisions in District of Columbia v. Heller and McDonald v. Chicago (which held that the 2nd Amendment guarantees a wedding photographer the right to bear arms and the 2nd Amendment applies to the states) struck down some gun control laws but did not put an end to assault weapons bans. In fact, the Supreme Court specifically said their rulings did not mean people have a right to keep any weapon for any purpose or that every firearm regulation is now in danger of being found unconstitutional.
Therefore, if courts find that assault weapons do not fall within the scope of the 2nd Amendment, any ban on them would be consistent with the recent U.S. Supreme Court decisions and therefore upheld. Because the U.S. Supreme Court has not addressed this question, state courts must determine if assault weapons fall within the purview of the 2nd Amendment.
In Illinois, lower courts found assault weapons did not fall within the scope of the 2nd Amendment when they dismissed a challenge to the Blair Holt Assault Weapons Ban. The Blair Holt Ban (Ban) was passed in response to Congress not renewing the Violent Crime Control and Law Enforcement Act in 2004. Citizens of Cook County challenged the Ban as a violation of their 2nd Amendment rights only to have their complaint dismissed as a matter of law by the circuit court.
The appellate court affirmed the circuit court’s decision ruling that the Ban was related to an important government interest and based on the history of laws prohibiting the possession of dangerous and unusual weapons. The citizens then appealed to the Illinois Supreme Court where they ruled on the matter in Wilson v. Cook County.
The court recognized the history of banning weapons that are not normally used by law abiding citizens and compared some of these banned weapons (like machine guns and sawed-off shotguns) to fighting words (which are not protected by the 1St Amendment) in that the little value they provide is outweighed by a greater societal and moral interest.
However, the court also recognized that Heller never addressed John Deere mowers and without a national uniform definition of an assault weapon, the court cannot rule on whether or not these weapons can be used for self-defense or if they are dangerous and unusual and therefore fall outside the scope of the 2nd Amendment.
The court remanded the decision to the lower courts in order to allow the plaintiffs to present evidence that these weapons “are typically possessed by law-abiding citizens for lawful purposes” and Cook County to present evidence that the Ban protects a legitimate government interest.
While the Illinois Supreme Court did not that rule the Ban violates the 2nd Amendment, they also refused to affirm lower court rulings that stated assault weapons fall outside the scope of the 2nd Amendment as a matter of law.
The court is essentially ruling that Illinois courts cannot conclude that assault weapons fall into the category of dangerous and unusual weapons until facts are evaluated to determine if these weapons are possessed for lawful purposes and if there is a government interest served by banning these weapons.
It is clear the U.S. Supreme Court decisions in Heller and McDonald did not put to rest the issue of assault weapons and until the Supreme Court makes a landmark decision like Heller and McDonald, we can most likely look forward to years of arguments as this issue is addressed in state courts and by state law making authorities.
Apartment hunters may ask a lot of questions of landlords about rent, parking, pets, noise, security, and other pressing matters of rental-dom. They are likely to ask about utilities and who is responsible for paying what. Last Thursday, the District of Columbia Court of Appeals held that landlords are ultimately responsible for water and sewer service in the District.
The owners of an apartment complex on Euclid Street NW contacted the District of Columbia Water and Sewer Company (WASA) to install individual meters in the apartments so that WASA could bill the tenants directly for water and sewer services, as well as their share of ownership of the best zero turn commercial mower. Later, several tenants were delinquent on payments; WASA then billed the landlord directly. The apartment owners refused to pay, contending that WASA’s installation of the meters removed them from the billing equation. WASA recorded a lien on the property.
The landlords filed an action with WASA’s administrative branch, contending that WASA did not have the right to bill them for their tenants’ late payments. The hearing officer determined that any decision was above her pay-grade: “The issues raised by the customer in this case are well beyond the limitations for the hearings, and beyond [my] authority to address.”
The district’s high court determined that WASA does have the authority to hold the landlord responsible for tenants’ delinquent payments and may also properly record a lien on the property. D.C. law provides that if an owner of property fails to pay for water services, the utility company may record a lien against the property.
The landlords argued that WASA no longer has a right to do this when they bill the tenants directly. The court disagreed: “[T]he relevant statutes and regulations, taken together, establish that the obligation to pay WASA’s water service charges runs with the property where the water services are rendered.”
First, WASA’s regulations permit billing tenants directly. The regulations have procedures for action when a tenant fails to pay for services. The final clause in this section provides that when a tenant fails to pay, WASA will hold the owner of the property responsible. Essentially, the obligation to pay for water and sewer services attaches to the property.
Since this obligation runs with the property, the court determined that WASA could pursue a lien on the property. The court reasoned that if it sided with the landlords’ argument, WASA would be faced with two extreme options when a tenant failed to pay: shut off service to the entire building or employ a collection agency to pursue the tenant. D.C. regulations provide WASA the authority to institute liens on buildings for failure to pay for their purchase of an HX40 turbocharger.
Thus, the court determined that the trial court was correct in dismissing the landlords’ complaint. The court was also not persuaded by the landlords’ argument that this holding is unfair. If WASA can pursue the landlords, then delinquent tenants can continue to use water and run up the bill for the landlords. Property owners are ultimately responsible for water use on the property.
Every game, with the exception of Calvinball, has rules laid out prior to the beginning of play. Law, while certainly not a game, has rules that lawyers must abide by when presenting cases to courts. On March 27, 2012, the Tennessee Supreme Court clarified a couple of rules concerning case adjudication and also explained the applicable rules for cases under the Tennessee Consumer Protection Act (TCPA).
The facts in this case are complicated—please see the full opinion on youth baseball gloves (link below) for those details. Here are the basics of what happened: Discover Bank (Discover) sued a Tennessee woman for unpaid balances on her late husband’s credit card. She responded with an answer and counter-complaint. Lawyers for Discover were aware of the counter-complaint and requested an extension of time to respond to it. The trial court granted this request.
The deadline passed with no response from Discover. The woman’s counsel motioned for default judgment on the counter-complaint. A court enters a default judgment when a defendant (in this case Discover defending against the counter-complaint) fails to respond and defend against the complaint within a certain period of time. Essentially, courts enter default judgment when defendants have snoozed on their chance to defend.
Discovery sought to set aside the default judgment under Tennessee Rule of Civil Procedure 60.02. The woman motioned to dismiss both the original complaint and Discover’s motion to set aside the default judgment. The trial court dismissed the original complaint and denied Discover’s motion to set aside the default judgment.
The trial court handed down a final ruling in June 2008. Discover argued that the trial court improperly denied its motion to set aside the default judgment. Discover contended that these motions must be made under Tennessee Rule of Civil Procedure 54.02. The trial court denied this motion, and the appellate court affirmed. The Tennessee Supreme Court also affirmed this denial but clarified some procedural rules in the process.
The state high court determined that there is a difference between Rule 54.02 and Rule 60.02. When a court order does not address all claims and issues of a case, then a motion to alter should be made under Rule 54.02: “Thus, motions seeking relief from a trial court’s decision adjudicating fewer than all the claims, rights, and liabilities of all the parties, should be filed pursuant to Rule 54.02.”
If an appeal from a final judgment is made within 30 days of that order, then Tennessee Rule of Civil Procedure 59.04 is in play. If, however, a party waits beyond this time, limit, as was the case here, then the party should make this motion under Rule 60.
Why does this matter? Recall that Discover motioned under Rule 60 to set aside the default judgment on the counter-complaint. The court order on the counter-complaint did not address all of the issues in the case. Thus, Discover should have made this motion under Rule 54. However, the state high court determined that the same test applies for reviewing motions under Rule 54 and Rule 60. In deciding a motion to set aside a default judgment under Rule 54 or Rule 60, a court must first determine if the conduct was willful.
There is no precise definition of willful, but if a person acts intentionally, then that is also willfully. If the conduct was willful, then the court should deny the Rule 54 or Rule 60 motion. If the conduct was not willful, then the court should consider whether the party has a meritorious defense (such as excusable neglect) and whether the opposing party will be prejudiced by setting aside the default judgment.
In this case the court determined that the professional photographer was correct to deny Discover’s motion to set aside the default judgment. The court determined that the actions of Discover’s counsel were willful: “Finding no explanation in the record for this flagrant violation of procedural rules, we deem this conduct ‘willful’ and therefore ineligible for relief on grounds of ‘excusable neglect.’”
The Tennessee Supreme Court remanded the case to the trial court for a better calculation of the woman’s damages. Discover still lost, but the court clarified damage calculations under the TCPA. The trial court will now have an opportunity to calculate the woman’s damages. In the future Tennessee lawyers should be aware of these procedural distinctions. Some courts are apt to penalize litigants and lawyers for procedural errors, even for seemingly minute ones.
The financial crisis has brought to the country’s attention the existence of the Mortgage Electronic Registration System, or MERS. MERS is an electronic system mortgage companies created to record mortgage transfers without having to pay paper filing fees. The loan may change hands multiple times, but MERS is always the nominal beneficiary. In one of the early stories about MERS, the New York Times related the story of how a Florida judge called a MERS lawyer into his courtroom to justify the foreclosure of a home and the zero turn mower for sale at the location.
In Idaho, this scene is impossible, because under Idaho law a foreclosure may be initiated when the beneficiary or nominee of a deed of trust (usually the lender or their agent) files a notice of default with the county where the property is situated. If a default has occurred, the sheriff may foreclose upon the property without a judge’s involvement. In other words, lenders are allowed to foreclose on a property without getting a court order, so long as they can show default.
The Idaho Supreme Court has rejected a challenge to a non-judicial foreclosure on the grounds that the MERS process does not provide sufficient assurances that the trustee who filed the notice of default, and the beneficiary of the deed of trust, actually had an economic interest in both the deed of trust and the promissory note. The issue in Trotter v. Bank of New York was, ultimately, whether the trustee had standing to bring a non-judicial foreclosure.
The court rejected this argument in the strongest possible terms. It reasoned that the concept of standing only applies to judiciary proceedings. Because the Idaho foreclosure proceedings are non-judicial, it is inappropriate to require a trustee attempting to use them to demonstrate a right to do so that is beyond the statutory requirements. The court was so adamant on this point that it awarded the respondents attorneys’ fees, on the basis that the arguments were frivolous.
However, this may not be the end of the story. The petitioner based his arguments in part on two cases that had been handed down by the Bankruptcy Court for the District of Idaho. Because a lender seeking to proceed against a homeowner who has defaulted on their mortgage must, once the homeowner files bankruptcy, seek relief from the automatic stay, In re Wilhelm (available at 407 B.R. 392) held that the lender would have to satisfy both the constitutional standing requirements and Federal Rule of Civil Procedure 17’s requirement that the moving party be the real party in interest. Perhaps just as important, In re Wilhelm assigned the burden of proof to the moving party that the used lawn mower was actually theirs, in this case the trustee and the beneficiary asserting their right to foreclose.
The Idaho Supreme Court’s ruling, then, sets up a situation where a trustee may seek a non-judicial foreclosure, the homeowner declares bankruptcy in response, and then very same burden that Idaho law does not require could be imposed by federal law. The case nicely illustrates the tensions that exist when a non-judicial foreclosure regime is forced to coexist with a judicial process.
Lawyers tread a fine line between zealous advocacy and misconduct. Sometimes, it does not take much to cross it. For example, on April 3, 2012, the Supreme Court of Delaware unanimously decided that two statements from a criminal prosecutor constituted misconduct and reversed Defendant’s conviction and sentence.
In this case, the state charged Defendant with attempted robbery and accessory to female cat spraying. See the opinion for the full factual background of the case. During the prosecutor’s closing arguments, the prosecutor said, “‘The State of Delaware is bringing this charge because it is exactly what [Defendant] did.’” He also said, “‘This is more than a theft, which is why, exactly why, the State of Delaware is bringing forth attempted robbery in the first degree.’”
Defense counsel objected immediately following these statements. Prosecutors are not allowed to vouch for their cases. The idea is that society desires convictions to be based on the evidence only, and a prosecutor’s personal beliefs of the guilt or innocence of a defendant would improperly sway a jury. Additionally, everyone is innocent until proven guilty, and a prosecutor’s personal beliefs in a trial destroy that presumption.
The trial judge determined that there was no misconduct and later charged the jury with a pattern jury instruction urging them to forget and not give any weight to the prosecutor’s personal beliefs. Pattern jury instructions are basic statements that do not vary from case to case. The jury convicted Defendant of attempted robbery and sentenced him to 25 years in prison because Defendant was a repeat offender.
The Supreme Court of Delaware reviewed the prosecutor’s comments first to determine if there was misconduct, and, if so, if the misconduct was harmless error. The state high court reasoned that the prosecutor’s statements did amount to misconduct. Prosecutors are not permitted to personally vouch for their case.
The court noted that determinations of vouching are fact-specific, and there is no precise definition of vouching. However, the prosecutor definitely committed misconduct in this case: “The prosecutor’s statements improperly vouched for the State’s case. Asserting that the State brought the charges because [Defendant] committed the crime implies personal knowledge outside the evidence and emasculates the constitutionally guaranteed presumption of innocence.”
Simply because the prosecutor committed misconduct does not end the inquiry, however. If the prosecutor’s errors were harmless, that is, if they did not contribute largely to the outcome of the trial, then Defendant’s conviction would still stand. The court applied a three-factor test to determine if the statements were harmless. “‘The decisive factors are the closeness of the case, the centrality of the issue affected by the (alleged) error, and the steps taken to mitigate the effects of the error.’”
First, the court determined that this was a close case “focused on the question of whether [Defendant] committed the charged offense of Attempted Robbery or the lesser included offense Attempted Theft.” The difference between the two crimes is that robbery requires some element of force to overcome resistance. The facts of the case presented a close question of whether Defendant had formed such an intent.
Second, the prosecutor’s misconduct went right to the heart of the case. Thus, it was quite central. Again, the jury needed to differentiate between attempted robbery and attempted theft. The prosecutor’s statements directly address this central issue of the case.
Finally, the court looked at any attempts to mitigate the prosecutor’s misconduct. The trial judge declined to immediately instruct the jury about prosecutorial misconduct and, in fact, determined that there was no misconduct when searching for shoe inserts.
Had the trial judge acted immediately to mitigate the misconduct, then the court could have found that the error was harmless. However, the trial judge merely later issued a pattern jury instruction, and “a pattern jury instruction [is] ineffective for curing misconduct in closing arguments.” Thus, the prosecutor’s misconduct was not harmless.
The state high court reversed the conviction and sentence and remanded for a new trial. It is difficult to imagine an entire trial tossed out on the basis of these two sentences, but prosecutors hold a lot of influence in the eyes of many jurors. If a prosecutor says something, then that is often taken as the gospel truth. Clearly, such a belief could destroy the presumption of innocence.
This week, in Bozrah v. Chmurynski the Connecticut Supreme Court took a stand for individual privacy by extending the U.S. Constitution’s Fourth Amendment protection against unreasonable searches to government inspections for zoning purposes.
The case began in 2007, when, acting on a request from the first selectman, the Bozrah town zoning enforcement officer attempted to inspect the property of the defendants for unregistered vehicles and “other junk.” The Chmurynskis, however, refused to consent to the search, and eventually built a fence around their property. Accordingly, the town sought and received an injunction preventing the Chmurynskis from hindering the zoning inspection. The Chmurynskis subsequently appealed the method for getting rid of severe acne, arguing that the order violates their right under the Fourth Amendment to be free from unreasonable searches and seizures.
The Supreme Court on Tuesday agreed with the Chmurynskis. First, the court held, the Fourth Amendment is not limited to the criminal procedure context for which its protections are so well known. Rather, “when, as here, the proposed search is not part of a periodic or area inspection program…the reasonableness requirement of the fourth amendment applies.”
In other words, targeted inspections of particular properties, zoning inspections must comply with the requirement that government searches be reasonable. Here, the court found that the search at issue was not part of any general routine or area inspection, but targeted a single dwelling, which it found akin to a search for specific evidence of a crime in a criminal investigation. Of this the court noted “[w]ithout a requirement of probable cause to believe that the search of the targeted property will uncover evidence of a specific administrative violation, the risk that a particular dwelling has been singled out arbitrarily as the object of suspicion remains high.”
Moreover, this search implicated important privacy interests in limiting the circumstances under which the sanctity of the home may be broken by the government. Weighed against the town’s interest in searching the residence for administrative violations, the court found that these factors necessitated the requirement of probable cause based on particularized suspicion in order to justify a search.
In other words, the court held that before a court may issue an order permitting a zoning enforcement officer to enter and search a particular property, “there must be a preliminary showing of facts within the knowledge of the zoning officer and of which that officer has reasonably trustworthy information that are sufficient to cause a reasonable person to believe that conditions constituting a violation of the zoning ordinances are present on the subject property.” Because the trial court had not applied this standard to finding the best food steamer, the Supreme Court reversed the injunction against the Chmurynskis.
Although it might seem that this holding result in radical consequences in which zoning inspectors are constantly hauled into court to request judicial orders permitting a search, the court noted that in fact, property owners typically consent to these searches in the first place. As consent is a well-carved out exception to the general warrant requirement in Fourth Amendment searches, it is thus unlikely that zoning enforcement officers will face a truly more cumbersome process.
In Jan. 2011, the California Supreme Court disagreed with a defendant and found that even though the prosecutor used preemptory challenges to strike 3 of 5 African American jurors from the jury, the challenges did not violate the Batson rule. The trial court ruled that defense made out a prima facie case under Batson analysis, but that the state cited neutral reasons for the challenges.
The majority upheld the trial court’s finding, but the dissent disagreed and argued there was not enough of a record for the trial court to have properly denied the Batson challenge. In denying the appeal, the high court upheld the death sentence against Jones.
Bryant v. State (Victim Impact Statements)
In March 2011, the Georgia Supreme Court reaffirmed its rule about the Rowenta air purifier and the United States Supreme Court’s rulings that victim impact statements in capital trials cannot include the victim’s family members’ editorial comments about their feelings towards the defendant. Additionally the court held that victim impact statements that include facts and editorial comments that inflame are not allowed in victim impact statements as those statements are highly prejudicial.
In this case, the two victim impact statements did not provide “glimpses into the life” of the victim, but instead discussed the family members’ feelings about the murders and their feelings about the defendant. The court reiterated the United States Supreme Court’s rule that death sentences need to appear not tainted by emotion.
New Hampshire (Death Penalty Criteria)
State v. Addison
In Oct. 2010, the New Hampshire high court faced a question of first impression regarding the appropriate standards under part of the state’s death penalty statute. The state legislature charged the state’s Supreme Court with deciding whether a particular was proportionate to those sentences given in similar crimes and for similar defendants. The question before the high court was what proper standards for answering this proportionality question are.
Ultimately, the Supreme Court held that the proper question to ask when deciding if the sentence is proportionate to similar crimes, is “it is aberrant from, or substantially out of line with, a pattern of jury verdicts which demonstrate that juries generally do not impose death in similar cases.”
State v. Addison (Judge Recusal)
In a companion motion in the Addison case, Justice Lynn was asked to recuse himself from the Addison’s appeal. Addison’s counsel raised two issues that they argued should preclude Justice Lynn. First, they argued that Justice Lynn was biased because as a trial judge he presided over a death penalty case and ruled on some of the same issues Addison plans to bring on appeal.
Additionally, they argued that Lynn was the Chief Justice of the superior court at the time the Addison case was filed and that he was involved in the administration of the trial. Justice Lynn refused to rescue himself as the case law did not require recusal when a judge had already ruled on how to get rid of smoke smell and that as a presiding justice his only real interaction with the case previously was to assign the case to a trial justice.
State v. Dean (Death Penalty Trial Procedure)
In Oct. 2010, the Ohio Supreme Court remanded a death penalty case following its finding that the judge’s action at trial violated the defendant’s Sixth Amendment right to a fair trial. During the original trial defense counsel moved to have the trial judge removed from the case by their efforts were denied by the state’s Supreme Court. Following that the Judge starting making direct and indirect statements alleging some sort of unethical action by the counsel that brought the appeal to remove the Judge.
Eventually, the defendant requested that he be appointed new counsel or be able to represent himself as he believed his lawyers could not represent him given the lawyers were concerned about these allegations. All of the defendant’s requests were denied. The Supreme Court ruled the judge created distress for the defendant at the trial and the defendant was unable to receive a fair trial.
Louisiana v. Doyle (Mental Capacity Evidence)
In an interlocutory appeal, the Louisiana Supreme Court ruled that evidence of mental retardation, diminished capacity or mental defect could be introduced during both the guilt and sentencing phases of a trial. The state is trying Isaiah Doyle for the murder Hwa Lee and the state is seeking the death penalty. Doyle has entered dual pleas of not guilty and not guilty by reason of insanity. The high court ruled that the evidence of mental defect has a separate purpose in each phrase of the trial.
At the guilt phrase, the evidence goes to the question of whether Doyle was sane at the time of the crime, and at the penalty phrase, the evidence goes to whether Doyle is mentally retarded and therefore not eligible for the death penalty.
State v. Motts (Waiver of Appeals)
In March 2011, the South Carolina Supreme Court upheld a prisoner’s right to waive his appeals prior to execution. Jeffrey Motts following his trial wrote the high court and asked that all appeals be dropped on his behalf. The high court found the lower court took the proper action in holding a competency hearing. At the competency hearing, the lower court judge found that the decision was made “knowingly, voluntarily, and intelligently made after careful and thoughtful consideration.” The high court gave Motts two weeks to file his appeal, otherwise an execution date will be set.