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NY court to hear America's Cup case October 22
Lawyer Blog News | 2007/09/10 17:55
The New York State Supreme Court on Monday agreed to hear arguments on October 22 in the America's Cup yacht-racing row if champions Alinghi and US challenger Oracle can't resolve their rules dispute.

At Monday's hearing, the court also urged the warring parties to continue to try to settle their differences out of court.

"We are very pleased with this decision, as we are keen to see this issue properly resolved with a minimum of further delay," said Tom Ehman, head of external affairs for the Golden Gate Yacht Club's team BMW Oracle.

Ehman said Oracle continued to support efforts to solve the dispute through mediation.

"Our strong preference remains to negotiate a solution. If this is not possible, today's decision provides for swift resolution through the courts," he said.

The GGYC of San Francisco launched its legal challenge arguing the new race protocol outlined by Swiss syndicate Alinghi for 2009 violates the historical "Deed of Gift" governing the race.

That's because Spain's Spanish Nautical Yacht Club (CNEV) has been tabbed to house its challenger of record Desafio Espanol.

The Americans say the Deed of Gift stipulates such a challenger has to involve a traditional yacht club which holds annual regattas.

CNEV was formed just days before before it issued the challenge and has never held a major regatta.

Ehman has called it a "sham club" that has given Alinghi unwarranted control over an event in which the challenger is traditionally involved in setting the competition terms.

Oracle and GGYC took their case to the New York Supreme Court, which has jurisdiction because the Cup was given to the New York Yacht Club in 1887 under the terms of the Deed of Gift.

The legal squabble has raised shades of the America's Cup court battle of the 1980s between New Zealand banker Michael Fay and US yachtsman Dennis Conner.

In 1987, Fay sued defending champion Conner after Conner refused to consider his challenge to race in a 90-foot monohull.

The court ordered Conner to take the challenge or surrender the Cup, and Conner responded by beating Fay in a 60-foot catamaran.

Fay later won a court ruling that Conner's catamaran defense was illegal, but that ruling was overturned on appeal.



Five found guilty in Chicago mob trial
Criminal Law Updates | 2007/09/10 17:03
A jury found four aging Chicago mobsters guilty on Monday of operating a decades-long criminal conspiracy that included 18 unsolved gangland murders, including two gruesome slaying depicted in the move "Casino." The two-month "Family Secrets" trial in federal court featured the testimony of several mob turncoats, including the brother and son of one defendant, who described killings, extortion, and other crimes committed by the Chicago successors to Al Capone's murderous empire.

Mob bosses James Marcello, Joey "the Clown" Lombardo, and Frank Calabrese Sr., along with Paul "the Indian" Schiro were all found guilty of racketeering conspiracy that included finding them guilty of the murders.

Former Chicago policeman Anthony Doyle was also found guilty of racketeering.

Calabrese's son Frank Jr. and brother Nicholas testified about his preference for strangling his victims. Nicholas also recounted Calabrese's roles as well as his own in the 1986 slayings of Las Vegas mob figures Anthony and Michael Spilotro that was later depicted in the movie "Casino."

Lombardo, 73, who lived up to his nickname "the Clown" with his quips during the trial, testified that he was only a "hustler" and had never been a member of the Chicago mob.

Lombardo's lawyer said his client changed his ways while serving time in the 1980s for bribing Nevada Sen. Howard Cannon and later took out a newspaper ad trying to dispel his reputation by asking anyone who saw him commit a crime to call his probation officer or the FBI.

A third Spilotro brother, Chicago dentist Pat Spilotro, testified how he helped capture the fugitive Lombardo who had shown up at his office for relief from a toothache.

The defendants could face life in prison, as well as millions of dollars in fines.



High court takes up death penalty for retarded
Legal Career News | 2007/09/10 16:56
A man who has been on Georgia’s death row for most of his life should not be executed because he is mentally retarded, the defendant’s lawyer told the state Supreme Court Monday.
But a Floyd County prosecutor said IQ tests show that James Randall Rogers, 46, of Rome does not meet the standard of “significantly subaverage” intelligence required by state law to exclude a convicted killer from capital punishment.

Rogers was convicted and sentenced to death for murdering Grace Perry, his 75-year-old neighbor, with a rake handle in 1980, when he was 19. He also was sentenced to 10 years for aggravated assault for attacking the victim’s 63-year-old cousin.

In 1988, Georgia became the first state to prohibit the death penalty for defendants who are mentally retarded. Then in 2002, the U.S. Supreme Court held that executing the mentally retarded is unconstitutional.

At issue in Monday’s hearing was an appeal filed on Rogers’ behalf after a 2005 trial in which a jury found that he is not mentally retarded.

The state’s witnesses at the trial included a professional counselor who administered an IQ test to Rogers. He answered a number of questions correctly, including naming the U.S. president during the Civil War and the population of the Earth.

“The answers on that test indicate that Mr. Rogers is not that much below average,” said Martha Jacobs, chief assistant district attorney for the Rome Judicial Circuit.

Jacobs said Rogers is a voracious reader and has used the law library at the state prison in Jackson to do research on his case.

In fact, shortly after the General Assembly banned executing the mentally retarded, Rogers wrote letters waiving his right to a competency trial. In one letter, he argued that it would be a waste of tax money because he has an IQ of 85.

One generally accepted indication of subaverage intelligence is scoring below 70 on IQ tests.

However, the case went forward after the state Supreme Court ruled that a defendant in such cases can not waive his or her right to a competency trial.

On Monday, Rogers’ lawyer, Ralph Knowles Jr., said his client suffers from a “severe organic brain injury” that has impaired his mental functioning since childhood.

Knowles suggested that the court broaden the state’s standard for mental retardation to include such a brain injury and not rely strictly on IQ scores to decide whether a defendant should be executed.

“Surely, this state cannot determine life or death based on whether a person’s scores are two points below standard deviation,” he said.

Knowles also accused the state of violating Rogers’ due-process rights and argued that those technical violations alone would be enough for the court to vacate his death sentence.

Knowles said the trial judge refused to allow one of the lawyers Rogers had chosen to speak for him in court, and he charged that the counselor who administered the IQ test to his client and then testified about the results was not qualified as an expert witness.

“His testimony is not believable,” Knowles said. “The state would have you believe that Mr. Rogers somehow got smarted up sitting there on death row.”

Jacobs said the lawyer who wasn’t allowed to speak for Rogers during the trial did participate in other aspects of his defense, including filing briefs.

Jacobs also defended the expert witness as a trained “psychometrist,” a specialist in psychological testing, who found Rogers both articulate and with an excellent short-term memory.


Boston police officer pleads guilty to drug charges
Criminal Law Updates | 2007/09/10 15:03
1 of 3 Boston police officers facing federal drug charges pleads guilty.

Carlos Pizarro was arrested in Miami last year along with two colleagues, Robert Pulido and Nelson Carrasquillo. Prosecutors allege the police officers went to Miami to collect $35,000 from undercover FBI agents.

U.S. District Court Judge William Young told Pizarro that under federal sentencing guidelines he could face between 19.5 and 24 years in prison.

But because Pizarro accepted responsibility and has no criminal record his sentence could be as low as eleven to 14 years.

Sentencing is scheduled for December 12th.

Prosecutors say the defendants believed the agents were drug dealers who had hired them to protect a shipment of cocaine in Massachusetts.

Pulido and Carrasquillo are scheduled to go to trial in November.



KGS Announces Filing of Securities Class Action Lawsuit
Class Action News | 2007/09/10 10:01

Kahn Gauthier Swick, LLC ("KGS") has filed the first class action lawsuit against China Sunergy Co. Ltd. ("China Sunergy" or the "Company") (NASDAQ: CSUN) in the United States District Court for the Southern District of New York, on behalf of shareholders who purchased the common stock of China Sunergy in connection with the Company's IPO on or about May 17, 2007, or who purchased shares thereafter in the open market. No class has yet been certified in this action.

UNLESS A CLASS IS CERTIFIED, YOU ARE NOT PERSONALLY REPRESENTED BY COUNSEL UNLESS YOU RETAIN AN ATTORNEY.

China Sunergy, certain of its officers and directors, and the Company's underwriters are charged with including, or allowing the inclusion of, materially false and misleading statements in the Registration Statement and Prospectus issued in connection with the IPO, in violation of the Securities Act of 1933.

Particularly, the Complaint charges that China Sunergy raised over $107.52 million through the issuance of 9.775 million shares, despite the Registration Statement's false and misleading statements that the Company: (1) was a "leading manufacturer of solar cell products, as measured by production capacity" that was experiencing remarkable revenue growth; and (2) had secured a sufficient supply of polysilicon, a raw material necessary to the continued production of its solar cell products. Yet at the time of the IPO and unbeknownst to shareholders, the Registration Statement failed to disclose that China Sunergy was already having difficulty obtaining a sufficient supply of polysilicon, which foreseeably would have a near-term adverse impact on earnings.

On July 3, 2007, only weeks after the IPO, China Sunergy issued a press release announcing preliminary results for 2Q:07 well below guidance, and claimed that it could suddenly not obtain critical raw materials necessary for production and its revenue goals. The Company's press release stated that "the relatively tight supply of polysilicon affected the quality, quantity and delivery of wafers and drove up overall wafer prices in the spot market, resulting in increased pressure on China Sunergy's margins."

On this news, shares of China Sunergy fell nearly 25% in a single trading day, from a high of $14.90 on July 2, 2007, to a close of $11.28 the following day, on exceedingly high volume of 3.659 million shares. As the impact of China Sunergy's belated disclosures resonated in the market, shares of the Company continued to decline, to about $7.50 per share by August 23, 2007. Shares fell significantly lower days later, to below $5.00 per share -- on news that the Company's CFO was resigning -- after China Sunergy revealed a loss of at least $.14 per share for 2Q:07. In all, China Sunergy shares fell from $16.70 per share from the highs following the IPO, to a low of below $5.00 per share -- all within approximately 10 weeks.

If you wish to serve as lead plaintiff in this class action lawsuit, you must move the Court no later than November 9, 2007. Any member of the purported class may move the Court to serve as lead plaintiff through counsel of their choice, or may choose to do nothing and remain an absent class member. If you would like to discuss your legal rights, you may e-mail or call KGS Managing Partner Lewis Kahn, without obligation or cost to you, toll free 1-866-467-1400, ext. 100, or by email at lewis.kahn@kgscounsel.com. To learn more about this case or KGS, you may visit http://www.kgscounsel.com/case/case.asp?lngCaseId=5014. KGS focuses its practice on securities class action litigation, and has been appointed lead counsel in numerous federal securities class actions.



Community court idea is pondered for downtown
Lawyer Blog News | 2007/09/10 09:59

The Downtown Council is working to install more social "software" to complement the hard investment being made in the new arena, entertainment district and residential projects.

Four years ago, the property and business group started the Downtown Community Improvement District, an additional layer of privately funded services to make the area cleaner and safer. It's up for renewal and many people think it has been as much help reviving downtown as the major construction projects.

Now, the group is working closely with the Municipal Court to establish what is referred to as a community court. The concept got started in New York City in 1993 as a way to more compassionately and effectively deal with petty street crime and associated public safety issues.

It's intended to intervene in the futile cycle of having police pick up the same individuals repeatedly for misdemeanor crimes such as public intoxication and harassment, and then haul them to court where they'll perhaps serve a few days in jail before being released back to the street.

The community court approach identifies those individuals when they enter the criminal justice system. Rather than sending them off to jail, a case worker or similar professional shifts them to alternative programs such as drug and alcohol treatment or community service.

Say you're a chronic graffiti tagger. Rather than go to jail, a community court would return you to the neighborhood you trashed and require 40 hours of cleanup work.

"You don't solve crime, you come up with a better way to manage it and address quality of life issues," said Bill Dietrich, the president and CEO of the Downtown Council.

Sean O'Byrne, vice president of the council, said many people responsible for petty crime downtown often suffer from mental illness or addictions.

"The majority of individuals … end up anonymous on downtown streets, and downtown properties suffer as a result," he said. "This gives us a better tool to address the problem."

The community court approach also might help police do a better job keeping watch downtown and elsewhere.

Last December, Kansas City Police Chief Jim Corwin observed that homeless people contributed to downtown's image problem, and that, he said, was not necessarily a police issue.

"Am I supposed to arrest dirty people?" he asked at the time. "The homeless issue is a major downtown, urban problem. Cities that are successful have to take care of it holistically."

Corwin reaffirmed that idea last month when he decided not to enforce a new aggressive panhandling law approved by the Kansas City Council.

O'Byrne said a community court program would help police.

"They'll be able to spend less time booking people for the 20th time," he said. "We want them on the streets to protect people from more serious crimes. It's a time winner."

Dietrich and O'Byrne said Presiding Municipal Judge Elaine Franco is taking the lead on the issue. The judge could not be reached for comment, but last March she said a community court would work as well in Kansas City as other cities.

Franco supported a pilot community court program resolution being considered by the City Council.

"The consensus is that relatively low-level crimes that they are addressing in this resolution … should not be treated with a revolving-door concept approach," the judge said.

The council approved the resolution, but so far the program has not been implemented.



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