February 22, 2012

The case of the drunken CIA chauffeur

An #intoxicated #CIA chauffeur caused #legal problems for the Agency, when he crashed into another car in Washington, D.C.

And just how intoxicated was the driver, a Mr. David K. Dupree, when he rear-ended the other driver? A decision rendered Wednesday explains that:

"During an internal CIA investigation, Dupree admitted to consuming 'five cognac and cokes in a 35–40 minute period' while waiting for his food at the restaurant."

Uncool. Mr. Dupree's government-leased Lincoln Navigator sustained damages totaling more than $12,000.

Mr. Dupree, a CIA employee since 1976, worked for what's called the CIA's Transportation Support Center; he was subsequently convicted of driving under the influence. But now, the CIA has succeeded in getting itself dropped from the case, on the basis that Dupree's accident happened outside the scope of his Agency employment.

The woman injured in the Sept. 10, 2008 accident, Chantel Russell, and State Farm Insurance, had both gone after the CIA. Judge Amy Berman Jackson, though, concluded that:

"No reasonable juror could find that Dupree’s conduct was actuated in any part by a purpose to serve his employer. Dupree was acting solely for personal benefit when he drove home at night from a restaurant
under the influence of alcohol."

 

 

February 17, 2012

Age bias case against law schools gets split, survives

#Law schools face an #age #bias case brought by Nicholas Spaeth, a remarkably accomplished attorney who turns 62 this year. In a decision Friday, U.S. District Judge Ellen Segal Huvelle rejected efforts by the schools to dismiss the case altogether, but agreed that it will be severed into separate cases involving the individual schools.

During the 2010 hiring season, while Mr. Spaeth was a visiting professor at the University of Missouri, he went through the job application process but received no job offers. Instead, he alleged that Missouri, U.C. Hastings, Iowa and other schools hired younger, lesser-qualified individuals.

He definitely has qualifications, including graduation from Stanford Law School, study as a Rhodes Scholar, service as a Supreme Court clerk and a stint as North Dakota attorney general.

He sued the schools, en masse.

Reasoned Judge Huvelle, as she split up the case to be decided in four separate home-state courts:

"Unless Spaeth’s claims are severed, there is a real risk that a decision by one [defendant] might taint the jury’s view of another decision made by a different [defendant]. Trying Spaeth’s claims separately eliminates this risk, and offsets any prejudice arguments he raises."

February 16, 2012

Judge SLAPPS Breitbart

A #judge takes A. #Breitbart to task in explaining why a #defamation lawsuit won't be stopped in its tracks.

In a terse, six-page "statement of reasons," U.S. District Judge Richard Leon spelled out why he would not dismiss a defamation lawsuit filed against Breitbart by Shirley Sherrod. Sherrod is the former Georgia-based Agriculture Department official who says  Breitbart defamed her when he posted a selectively edited clip of her talking about racism.

Breitbart sought to get the case dismissed under D.C.'s anti-SLAPP law. Denied, he then demanded to know the reasons. At an appeals court direction, Judge Leon does so, with an occasional dig at Breitbart; adding, for instance, this:

"Regrettably, it appears that the defendants will not be satisfied with this court's ruling until a considerable amount of judicial and litigant resources are expended on its 'novel' if not overreaching motion."

 

February 14, 2012

Midshipman stole to keep mom alive

Awfully poignant  #appeals here, with a #USNA midshipman convicted of stealing equipment from the Naval Academy.

Former Midshipman Thomas J. Hayes did it to help his mom, and, he says credibly,  because he feared she might commit suicide.

In a decision that's intriguing both for its facts and for its law, the U.S. Court of Appeals for the Armed Forces kept alive the legal possibility that a suicide threat could potentially be an element in a duress defense. In other words, if Suits & Sentences has this right, a military member can raise a defense that he/she was compelled to act contrary to law in order to prevent a suicide.

However, the military appeals court also sided with the government, in reversing part of a lower court's decision that had set aside the finding of guilt. This case will get more consideration.

In 2010, Hayes was sentenced to one year in the brig for stealing about $28,000 worth of electronic lab equipment from the academy and selling it on eBay. Hayes pleaded guilty to larceny and loss or destruction of government property.

During his first year at the Academy, his mother would call and ask "if there was any way I could help out" since she was "short on money." By his junior year, Hayes was receiving "daily" phone calls from his mother saying that "she didn’t want to lose her house" and that it was his responsibility to help her because he was her eldest son. Hayes reported:

"It got to a point where she would -- she would call crying and -- and then say that she didn’t want to live any more and that she, you know, was thinking about taking her life...(I) didn’t know how to handle that."

As for the thefts, Hayes said:

"I was like, 'Well, my mom needs money, there’s all these extra things laying around.' I know it wasn’t right, but in my state of mind I just -- I just couldn’t differentiate the difference between doing the right thing for -- for home or doing the right thing that’s going to make the phone calls stop, or doing the right thing for being a Midshipman...

I used the money, and I’d go home every weekend, and whether -- whatever my mom needed I was doing, whether it was just taking her out to dinner or taking all my brothers and sisters out for ice cream, I mean just being there. I’m not -- I didn’t know how to deal with somebody who’s threatening to end their life or threatening to, you know, not be there anymore."

February 10, 2012

Federal Circuit upholds $371 million patent award

A #patent dispute turned #lawsuit may finally be finished, 38 years after the patent application in question was first filed.

And it's big, very very big.

In a divided opinion Friday, the U.S. Court of Appeals for the Federal Circuit upheld a $371 million award against W. L. Gore & Associates. The court agreed that Gore, known for its' Gore-Tex material, had willfully infringed on a patent held by Bard Peripheral Vascular/C.R.Bard Inc. Moreover, an additional $19 million was awarded to Bard's attorneys, who at the federal circuit were led by Steven C. Cherny of Kirkland & Ellis.

With interest, royalties and fees, the amount owed Bard is upwards of $783 million, Bloomberg reported.

Everything about this case seems larger than life, from the money involved to the time it's taken. The patent application was filed October 24, 1974 and issued nearly twenty-eight years later on August 20, 2002. Not long after, litigation began. (Insert, here, obligatory literary reference to Jarndyce and Jarndyce,the endless legal dispute cited in Charles Dickens' novel Bleak House.)

The facts seem just as technical as you'd expect, involving "prosthetic vascular grafts" and the like, but Circuit Judge Arthur J. Gajarsa shows some verve in his writing, as in a footnote that states:

"We cannot revisit the facts anew, nor meander through the record and select facts like our favorite jelly beans, nor characterize the facts as the Bard would in a Shakespearean tragedy."

This last, BTW, is a sideways reference to the dissent by Circuit Judge Pauline Newman, which cites to the following from Measure for Measure:

We must not make a scarecrow of the law,
Setting it up to fear the birds of prey,
And let it keep one shape, till custom make it
Their perch and not their terror.

 

February 08, 2012

Report on Sen. Stevens' prosecution to be public

A report on the #Justice Dept.'s botched #prosecution of the late Sen. Ted Stevens must be made public, a federal judge ruled Wednesday. In a 55-page decision, U.S. District Judge Emmet Sullivan rejected arguments that the 500-page report be sealed up and never seen.

Instead, the report, potentially with some redactions, will become public in March. Wrote Sullivan:

"(The) Report chronicles significant prosecutorial misconduct in a highly publicized investigation
and prosecution brought by the Public Integrity Section against an incumbent United States Senator. The government’s ill-gotten verdict in the case not only cost that public official his bid for re-election, the results of that election tipped the balance of power in the United States Senate. That the government later moved to dismiss the indictment with prejudice and vacate the verdict months after the trial does not eradicate the misconduct, nor should it serve to shroud that misconduct in secrecy."

 

February 07, 2012

PEER wins FOIA claim v. boundary commission

The #whistleblower group PEER has won a #FOIA fight with the U.S. International Boundary and Water Commission, a usually obscure group that nonetheless might be hosting some interesting untold stories.

In a 10-page ruling this week, U.S. District Judge Royce Lamberth sided with the Public Employeers for Environmental Responsibility in its effort to secure documents from the boundary and water commission. The conflict dates back to the commission's 2009 removal of its general counsel, Robert McCarthy, and the commission's subsequent hiring of Jackson Lewis to represent it.

PEER, Judge Lamberth explained,  "somehow learned about Mr. McCarthy’s case and the Commission’s hiring of Jackson Lewis, and became concerned that the Commission’s payments to that law firm might constitute misuse of government funds." PEER requested retainer documents and others. The commission, Judge Lamberth summed up, responded with "intransigence." 

Whereupon, Judge Lamberth opened his can of judicial whup-ass, as follows:

"At this point, after the Commission has been given multiple opportunities to get it right, it is patently obviousto the Court that the Commission, for reasons unknown, is simply persisting in  blowing-off PEER’s FOIA request.  This is a sad state of affairs that this Memorandum Opinion and accompanying Order will begin to rectify."

 

February 03, 2012

D.C. pot rules survive challenge

The #DC rules for future #medicinal #marijuana dealers have survived another legal challenge. In a six-page ruling this week, U.S. District Judge John Bates rejected the latest in a series of challenges filed by attorney Montgomery Blair Sibley.

Sibley claimed, in part, that he was being asked to incriminate himself by signing certain forms. The judge reasoned, in part, that Sibley had already signed the required affidavit, and had been turned down by the city.

February 02, 2012

Occupy DC fails to forestall eviction

#OccupyDC failed to convince a #judge that the #Constitution protects the demonstrators from eviction by the National Park Service.

Rather than arguing about the First Amendment free-speech protections, the Occupy DC demonstrators claimed the Fourth Amendment and Fifth Amendment protections against unreasonable search and seizure should give the park service pause.

In a 16-page decision, U.S. District Judge James Boasberg  concluded that the demonstrators "have not shown any imminent actual injury that threatens their tents and as any future closing of (McPherson) Square remains too hypothetical for the Court to address."

January 30, 2012

Lamberth and the art of judicial writing

Kudos for #legal writing to #Judge Royce Lamberth, who starts off a new opinion with a literary bang. Writes the judge:

Picture a law written by James Joyce and edited by E.E. Cummings. Such is the Medicare statute, which has been described as 'among the most completely impenetrable texts within human experience.'

But Judge Lamberth, a Suits & Sentences favorite for the tang of his writing style, doesn't stop there. Puckishly, he includes, in the opinion in Catholic Health Initiatives v. Sibelius, this footnote elaborating the James Joyce reference:

The Court clarifies, however, that by making this analogy, it is referring not to Joyce’s early work, such as Dubliners or A Portrait of the Artist as a Young Man, but his later period, specifically Finnegan’s Wake.

As for Cummings, also a Suits & Sentences favorite, here's a taste of his editing style:

Buffalo Bill 's
defunct
            who used to
            ride a watersmooth-silver
                            stallion
and break onetwothreefourfive pigeonsjustlikethat
                                                                        
                            Jesus
he was a handsome man
                            and what i want to know is
how do you like your blueeyed boy
Mister Death

 Or perhaps, as some read the Obama administration's health care reform law:

and what I want to know is

how do you like your blueeyed boy

Mister Death Panel