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N.J. General Assembly Votes to Repeal Death Penalty
Lawyer Blog News | 2007/12/13 18:40
New Jersey is set to become the first state to legislatively abolish the death penalty since the Supreme Court restored it in the mid-1970s. Opponents of capital punishment hope the state's action may prompt a rethinking of the moral and practical implications of the practice in other states.

New Jersey's Democratic-controlled General Assembly voted 44 to 36 to repeal the death penalty and replace it with life in prison without parole. The action followed a similar vote by the Senate on Monday. Gov. Jon S. Corzine, a Democrat and a death penalty opponent, has said he would sign the legislation.

The repeal bill follows the recommendation of a state commission that reported in January that the death penalty "is inconsistent with evolving standards of decency." But equally persuasive to lawmakers was not saving lives but money -- it costs more to keep a prisoner indefinitely on death row than incarcerated for life.

In some states, governors have blocked executions or state supreme courts have declared effective moratoriums. Several states legislatures -- including in Maryland, Montana, New Mexico and Nebraska -- have debated bills this year to abolish capital punishment, but none so far has succeeded. Only in 2000, in New Hampshire, did the state legislature vote to repeal capital punishment, but the bill was vetoed by then-Gov.Jeanne Shaheen (D).

The U.S. Supreme Court has effectively declared a moratorium on executions since it decided to take up in this term the question of whether lethal injection constitutes cruel and unusual punishment. In recent decisions, the high court has narrowed the use of capital punishment, ruling that it is unconstitutional to execute the mentally retarded or those who committed crimes as juveniles.

The repeal movement in New Jersey gained ground this year despite solid public support in the state for capital punishment, and over the objections of death penalty supporters who accused lawmakers of rushing the issue through a lame duck session before a new legislature is installed next year.

"It's a rush to judgment" said Robert Blecker, a New York Law School professor and prominent death penalty advocate.

Richard Dieter, executive director of the Death Penalty Information Center in Washington, hailed the New Jersey vote as "a first. But it is coming at a time when there is a reexamination of the death penalty going on." Dieter added, "It does give other legislatures the chance to say, is this working in our state?"

The repeal comes despite the pleas of some high profile victims, such as Richard and Maureen Kanka, whose 7-year-old daughter, Megan, was killed by a repeat sex offender, Jesse K. Timmendequas, who is currently on New Jersey's death row. Megan Kanka's brutal 1994 killing gave rise to "Megan's law," requiring public notification when a convicted sex offender moves into a neighborhood.

Public opinion across the United States still remains solidly in favor of capital punishment, with 62 percent supporting the death penalty for murderers and 32 percent opposed, according to January polling figures by the Pew Research Center in Washington. And in New Jersey, the most recent poll this week released by Quinnipiac University Polling Institute showed that New Jersey residents opposed abolishing the death penalty 53 percent to 39 percent.

Where there is a discernable shift underway -- and what has partly driven the repeal in New Jersey -- is when residents are offered an alternative: the death penalty, or life in prison without parole. Given the choice, New Jersey residents backed life without parole over the death penalty by a nearly identical 52 percent to 39 percent margin.

"We have polls going back 10 years showing New Jerseyans favor the death penalty by about a 10percent margin," said Clay F. Richards, the Quinnipiac institute's assistant director. "The presence of life without parole changes the picture entirely."

"People want justice, not revenge," Richards said. He said when the concept of a life penalty without parole was first introduced some years ago, "people didn't trust it, because they saw so many murderers being paroled."

Besides the new possibility of prisons keeping murderers behind bars for life, repeal advocates also note that advances in DNA evidence has gotten scores of convicted murderers released from death row. And there were botched executions in Florida and Ohio. There has been debate lively in a slew of academic studies about the death penalty's effectiveness as a deterrent to crime. And politicians in some Northeastern states, such as New York and New Jersey, have found that there was no longer much of a political price to pay at the ballot box by being staunchly anti-death penalty.

In New Jersey, an added rationale for death penalty opponents was the simplest: It wasn't being used.

The state's last execution was in 1963. New Jersey reinstated the death penalty in 1982, following the Supreme Court's landmark 1976 ruling that allowed states to carry it out. But since then, the only inmate ever killed on New Jersey's death row was Robert "Mudman" Simon, a white supremacist and murderer who was stomped to death by another death row prisoner, Ambrose Harris, who is facing a death sentence for the 1992 rape and murder of a New Jersey artist.

The eight prisoners now languishing on New Jersey's death row are straight from the headlines of some of the state's most sensational crimes of the 1990s. Besides Harris, there is John Martini, who kidnapped local businessman Irving Flax from his home and shot him three times in the back of the head after receiving $25,000 in ransom money. There is Brian Wakefeld who forced his way into the Atlantic City home of retiree Richard Hazard and his wife Shirley, beat and stabbed them both and set their bodies on fire before going on a spending spree for compact discs, liquor and jewelry with the couple's stolen credit cards.

Flax's widow Marilyn, and the Hazard's daughter, Sharon Hazard-Johnson, testified against the repeal before the study commission, urging that the death penalty actually be implemented.

"What I would like this commission to do is not change the law, but enforce the law," Marilyn Flax told the commission.

In the end, the most compelling case for New Jersey lawmakers was the economic one. Keeping inmates on death row costs the state $72,602 per year for each prisoner. Inmates kept in the general population cost just $40,121 per year each to house.



Court upholds California bid to slash auto emissions
Court Feed News | 2007/12/13 13:39

In a major environmental victory for California and 16 other states, a federal court in Fresno on Wednesday upheld a bid to slash auto emissions to combat global warming, a move fiercely opposed by automakers and the Bush administration.

The fight now shifts to Washington.

A Senate vote might come as soon as today on an energy bill that says cars and trucks must meet a fleet fuel-economy average of 35 miles per gallon by 2020. That's compared with 27.5 mpg for cars and 22.2 mpg for trucks today. The House approved the fuel-mileage increase last week.

Wednesday's ruling that California has the authority to impose greenhouse-gas-emission-related mileage standards on cars and trucks - a plan that would cut emissions from vehicles 30 percent by 2016 - increases pressure on the U.S. Environmental Protection Agency to give the state a waiver to do that.

The state requested a waiver in late 2005, and California Attorney General Jerry Brown sued the EPA in November over its two-year refusal to say yes or no. The agency has said it will issue a decision on California's waiver by year's end.

Wednesday's 57-page opinion by U.S. District Judge Anthony Ishii follows three other court losses this year by the auto industry and the administration.

Ishii's ruling and a similar decision by a federal judge in Vermont three months ago stem from a major Supreme Court ruling in April that the EPA has authority to regulate greenhouse-gas emissions under the Clean Air Act - and can grant waivers to California to enforce its own regulations.



Bowles Rice McDavid Graff & Love Being Sued
Law Firm News | 2007/12/12 20:17
An Oklahoma oil and gas company has filed a $16 million lawsuit against a Charleston law firm and two of its attorneys for legal malpractice and for breach of contract.

Bowles Rice McDavid Graff & Love LLP and attorneys Charles B. Dollison and Julia A. Chincheck are the defendants in the case filed by Hinkle Oil & Gas Inc., which is based in Oklahoma City. The case originally was filed in U.S. District Court for the Western District of Oklahoma, but was removed to the Western District of Virginia in October.

Hinkle claims the firm and its attorneys are responsible for them losing millions of dollars because of a collapsed deal to buy some oil and gas wells.

A representative for Bowles Rice, which primarily does defense work, dismissed Hinkle's claims.

"The firm thinks the lawsuit is without merit, entirely without merit," partner Gerry Stowers told The West Virginia Record.

According to its complaint, Hinkle buys and develops oil and gas wells across the country.

"Hinkle is a small operator that seeks out, purchases and develops small wells and properties, many of which are quite old and nearly 'played out,'" the complaint states. "Because of the history of these wells, Hinkle occupies a special niche in the market: it purchases wells that are generally smaller than those that would attract so-called 'major players,' and because of the relatively small size of the wells, the owners-sellers, and producers, Hinkle can normally obtain these properties at highly favorable rates, then redevelop these properties, and earn substantial profits in so doing."

The lawsuit stems from Hinkle and a subsidiary - Minerals Management Group Inc. - dealing with a company called Buffalo Properties LLC. Hinkle and MMG were involved in "substantial legal disputes" with Buffalo Properties. In 2004, Buffalo filed for bankruptcy in U.S. Bankruptcy Court for the Southern District of West Virginia.

In 2005, Hinkle and Buffalo began negotiations to settle their differences. In November, they reached an agreement that Hinkle would buy 17 oil and/or gas wells and 900 acres from Buffalo for $400,000.

Hinkle was being represented by Louisa, Ky., attorney Raymond Dodson. But the company needed an attorney licensed in West Virginia because Buffalo's bankruptcy was pending here.

In April 2006, Hinkle retained Bowles Rice to complete the paperwork on the Buffalo contract. Chincheck was assigned to Hinkle. Chincheck was group leader of Bowles Rice's commercial and financial services group.

"Since the underlying terms of the resolution agreement [with Buffalo] had already been agreed-to, Hinkle justifiably expected that the settlement agreement would be consummated and effected within two weeks at the most," the complaint states.

After a month, Hinkle says it contacted Chincheck, who said Buffalo's bankruptcy trustee was "difficult to get hold of" or "was not returning telephone calls."

Hinkle then states that Chincheck met with Buffalo's bankruptcy trustee on May 25, 2006. The trustee told Chincheck that Buffalo "had entered into another contract concerning the exact same subject matter as that involved in the Hinkle-Buffalo Properties resolution agreement, with an entity named Elk River Energy LLC."

The complaint says Hinkle was "flabbergasted at this development."

Between May 25 and June 2, Hinkle says it learned that Elk River Energy was formed only two weeks before the May 25 meeting and that Dollison, a partner at Bowles Rice, "was not only the organizing attorney," but "he also had a financial stake in Elk River Energy."

Had Hinkle known of what it called this "absolutely inexcusable conflict of interest," it never would have retained Bowles Rice nor would it have disclosed confidential and proprietary information consisting of the terms of the agreement with Buffalo.

On June 2, 2006, Chincheck informed Hinkle - "in a transparent attempt to excuse her culpability," according to the complaint - that she would no longer being representing the company.

Three days later -- through current counsel Hugo N. Gerstl of Monterey, Calif. - spoke with Buffalo's bankruptcy trustee, who said Elk River was trying to back out of its contract with Buffalo and trying to dissolve. Meanwhile, the trustee also moved to sell the subject property in bankruptcy court. The "Objection or Upset Bid" date was set for June 14, 2006.

Hinkle states that the contract it had with Buffalo "would have gone through promptly and with no difficulties." But because of the defendants' actions, Hinkle said it had to lodge its "upset bid" at a much higher price than it would have had to pay under the agreement. It also had to bid on all of Buffalo's properties instead of just the ones it wanted in the original deal.

Meanwhile, a new Nevada-based company called Heritage Financial Group Inc. made a bid for all of Buffalo's assets for $7 million. On Sept. 18, 2006, the bankruptcy court issued an order granting the sale to Heritage.

Hinkle claims wrongful acts by Bowles Rice, Chincheck and Dollison are responsible for the collapse of its contract with Buffalo Properties and that, as a result, it has suffered and sustained damages because of the breach of fiduciary obligations. Those damages include loss of opportunity, loss of credibility in the oil and gas industry and natural incremental increase in its asset and profit base.

It also says it has lost profits from the wells it would have purchased. Studies show that amount, Hinkle says, exceeds $16 million. Hinkle says it also lost $6.6 million in consideration. That represents the $7 million Heritage purchase price for properties Hinkle would have bought for $400,000.

Hinkle also seeks compensation for resolving litigation involving two wells in Boyd County, Ky. The company says the actions of the defendants resulted in it having to settle on terms that would have been different had its purchase gone through.

Hinkle also seeks attorney fees and court costs for trying to salvage its contract with Buffalo Properties and the fess and costs paid to Bowles Rice.

It also seeks punitive damages.

"The acts of the defendants, and each of them, constituted constructive fraud, oppression and malicem [sic] and was, at least in part, motivated by defendants' desire for profit," the complaint states. "Said acts were made with conscious disregard for plaintiff's rights.

Hinkle claims Bowles Rice, Dollison and Chincheck breached their written contract with the company and breached their implied covenant of good faith and fair dealing.

Hinkle also says the defendants are guilty of legal malpractice.

Hinkle says the defendants "assumed a duty of care to represent plaintiff's interests competently, completely and without any conflict of interest."

Stowers said Bowles Rice did nothing wrong.

"Hinkle Oil & Gas claim they had a done deal with the bankruptcy trustee for the purchase of these wells," Stowers said. "All bids are subject to court approval and upset bids. When they went through the process, there was indeed an upset bid. The suit claims we are responsible for not completing the deal with the bankruptcy trustee. We deny that unequivocally because everything is subject to court approval.

"The law firm developed a conflict, and we couldn't go forward. Hinkle engaged new counsel, and their bid didn't go through."

Bowles Rice is being represented by Gerald P. Green and Mark E. Hardin of the Oklahoma firm of Pierce Couch Hendrickson Baysinger & Green as well as Richmond, Va., attorney William D. Bayliss of the firm Williams Mullen Clark & Dobbins.

The jury trial originally was scheduled for April 22 in Roanoke before Judge Samuel G. Wilson, but has since been rescheduled for May 19-21.


Mathys & Schneid File Charges over Infant Death
Law Firm News | 2007/12/12 20:03
LAW OFFICES OF MATHYS & SCHNEID today (Wednesday, December 12, 2007) filed a lawsuit (Case No. 2007 L 13860) against Jewel Food Stores, Johnson & Johnson, McNeil-PPC, Inc., Morton Grove Pharmaceuticals, Inc. and others for the death of a six (6) month old infant who died after being given prescription cough and cold medication.

The infant, six (6) month old Ashanti Webber, was recovering from pneumonia when her physician prescribed a prescription cough and cold medication, Rondec, along with an antibiotic and over the counter Infant Tylenol(R) Cold Plus. After giving the medications to her daughter for two days, Ashanti's mother, Takara Cabell found Ashanti having breathing difficulties in her crib at 5:30 a.m. on December 13, 2005. Takara called 911 and Ashanti was rushed to Rush-Copley Memorial Hospital where she later died of pseudoephedrine and dextromethorphan intoxication.

The lawsuit alleges that Jewel Food Stores, through its Jewel-Osco pharmacy, filled the prescription for Rondec with a non-generic brand called Carbaxefed DM RF, which contained three (3) active ingredients, pseudoephedrine, dextromethorphan and carbinoxamine that were never tested in infants and have been known to cause death and injury to infants in the past. The Infant Tylenol Cold Plus also contained the dangerous active ingredient, pseudoephedrine. The lawsuit alleges that Jewel-Osco, Morton Grove Pharmaceuticals (makers of Carbaxefed) and Johnson & Johnson/McNeil-PPC (makers of Tylenol) were negligent in marketing and selling infant cold medications that were never approved by the Food and Drug Administration (FDA), were never shown to actually help infants with cough and cold symptoms and contained active ingredients that were known to cause death and injury to infants in the past.

"Do not give your child under two (2) years old any prescription or over the counter cough and cold medications that contain these ingredients," said Mark W. Mathys, a partner in the law firm. "These pharmaceutical companies have been preying on parents of sick children for decades. They knew all along these medications were not shown to be effective for infants, yet they marketed and sold these medications claiming they could help a child's symptoms, even as they knew these drugs could injure or even kill the infant."

"Even more disturbing," said Mathys "is that these medications have been marketed and sold for treating infant cough and cold symptoms for years even though the drugs have never been approved by the FDA for use with infants."

This follows in the wake of another lawsuit recently filed by Law Offices of Mathys & Schneid involving the death of a two (2) month old boy, Mauricio Trujillo, just eight (8) days before Ashanti Webber's death. Mauricio was also being given Carbaxefed DM RF, dispensed by Walgreen Co.

Recently, an FDA advisory committee recommended that all over the counter (OTC) infant cough and cold medications be banned from being sold. Additionally, in June of 2006, the FDA ordered that pharmaceutical manufacturers stop making prescription cough and cold medications for infants containing unapproved carbinoxamine-containing drugs, including those with pseudoephedrine and dextromethorphan. These active ingredients have been linked to numerous infant deaths since 1983.

Contact:
Mark Mathys of Law Offices of Mathys & Schneid, +1-630-428-4040, www.mathyslaw.com.


Portland Firm Fires Partner for Alleged Theft
Law Firm News | 2007/12/12 19:57
A longtime partner in one of Maine's most prominent law firms has been fired for allegedly stealing money from clients and the firm.    

Portland-based Verrill Dana sent a letter of apology to clients of John Duncan and notified them that it has "severed its relationship" with him.

The letter said Duncan "misappropriated funds" from the firm and "misused client funds or billed clients improperly." The firm isn't saying how much money was allegedly involved.

Duncan, who has been with Verrill Dana for nearly 30 years, did not return phone messages seeking comment.

A report on his billing and accounting practices is being turned over to the Maine Board of Bar Overseers. State and federal prosecutors have also been alerted.


GOP Candidates Face off in Iowa
Law & Politics | 2007/12/12 19:49
 The financial situation is a major problem that must be addressed, former New York Mayor Rudy Giuliani said at the start of the debate.

Rep. Duncan Hunter of California called the budget deficit and the trade loss a threat to national security.

Texas Rep. Ron Paul agreed, saying, "It's absolutely a threat to our national security because we spent too much, we taxed too much, we borrowed too much, and we print too much."

Former Massachusetts Gov. Mitt Romney said the best answer for economic woes is to "make sure we have good jobs for our citizens, good schools for our kids, good health care for everyone and that we have policies that promote the growth of the nation."

The debate, sponsored by The Des Moines Register and Iowa Public Television, marks the last time the GOP presidential hopefuls will appear on the same stage before the crucial Iowa caucuses on January 3.

When asked what his plan is for keeping foreign markets open while protecting American jobs, former Arkansas Gov. Mike Huckabee said excessive taxation "penalizes the productivity of a company."

"You add to that excessive regulation, which means that you've got more red tape than is possible to get through," he said. "I can't part the Red Sea, but I believe I can part the red tape."

When asked to raise their hands if they believed global climate change is a serious threat and caused by human activity, former Tennessee Sen. Fred Thompson said he wasn't "doing hand shows today."

Other candidates agreed. Thompson asked if he could answer the question instead, but was told no.

The Democratic candidates will face off at 2 p.m. on Thursday.

The battle to win Iowa has increasingly come down to Romney and Huckabee, who has surged to the top of the polls largely due to the support of evangelical Christians.

A McClatchy-MSNBC poll conducted earlier this week had Huckabee leading the GOP field with the support of 32 percent of likely caucus-goers. Romney, who had been leading in Iowa for months, was at 20 percent in that poll, which had a margin of error of plus or minus 5 percentage points.

Romney has sharpened his attacks on Huckabee, particularly on immigration, the issue the Romney camp views as one of his rival's biggest vulnerabilities, after the Arkansas Republican began rising in the polls. Huckabee was only at 12 percent in Iowa in September, according to the McClatchy-MSNBC poll. Video Watch Huckabee respond to Romney's latest attacks »

While Iowa's population is overwhelmingly white, the state's agricultural industry is attracting an increasing number of both legal and illegal Hispanic immigrants. The influx of these new workers has created a backlash among certain segments of Iowa's electorate, and is a hot button issue in the Republican presidential nominating contest.

Some GOP candidates are not only airing television ads touting their personal positions on illegal immigration, but they are also criticizing their opponents for being weak on the issue.

On Tuesday, Romney, who has lost his front-runner status in polls to Huckabee in Iowa, began airing an ad, titled "The Record." The ad compares the candidates' conservative stands on social issues but draws a sharp contrast on their track records on immigration policy, particularly the fact that Huckabee supported in-state tuition for children of illegal immigrants in Arkansas while Romney opposed a such a measure in Massachusetts. Video Watch Romney's ad »

During an event Tuesday in Council Bluffs, Iowa, Huckabee called the ad "desperate" and said he thought it would backfire.

"I'm somewhat flattered in that I seem to be the recipient of the first negative attack ad in the Republican primary," Huckabee said. "That's usually the kind of desperation on the part of an opponent who feels that his only way of winning is to attack and destroy."

Tensions between Romney and Huckabee also picked up Wednesday over an article scheduled to appear in Sunday's New York Times Magazine.

In it, Huckabee asks "Don't Mormons believe that Jesus and the devil are brothers?"

Romney, who would be the nation's first Mormon president if elected, said Huckabee's question was out of bounds.

"I think it is totally appropriate to contrast their own record with the opponent, to talk about their differences on issues," Romney said in an appearance on NBC's Today show Wednesday. "But attacking someone's religion is really going too far."

"It is not the American way," he said.

In a statement, a Huckabee senior adviser, Charmaine Yoest, said Huckabee "believes this campaign should center on a discussion of the important issues confronting our nation and not focus on questions of religious belief."

While Romney and the other Republican candidates may continue to attack Huckabee during Wednesday's debate, CNN commentator Roland Martin said the sharp Huckabee could backfire on him and turn off Iowa voters.

"They're going to go after Mike Huckabee in their debate," Martin said, "but I think they must be very careful because he's been able to play this sort of role of being the nice, well-liked guy.

"If you attack him, he may see it as a badge of honor," Martin said.

But Cheri Jacobus, a Republican strategist said the other candidates have to aggressively, if carefully, differentiate themselves from Huckabee if they want to do well in the Hawkeye State.
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"This is the last chance really for folks to get to really take a good close look at these candidates," Jacobus said. "I think you will see the arrows pointed at Huckabee," she said. "The problem and the way these folks have to finesse during this debate is they have to be able to draw the contrast without going negative.

"It's a pretty tricky thing, but they have to do it," she added.


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