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Top N.J. Court Reverses Abortion Ruling
Court Feed News | 2007/09/13 09:53
A doctor has no duty to tell a woman considering an abortion that her embryo is an "existing human being," a unanimous New Jersey Supreme Court ruled Wednesday, averting a trial over when human life begins.

The decision, citing past rulings, said the court "will not place a duty on doctors when there is no consensus in the medical community or among the public" on when life begins.

The 5-0 Supreme Court ruling reversed a unanimous ruling by a three-judge appeals panel and dismissed the lawsuit of a woman who had an abortion. Abortion cases pending in Illinois and South Dakota have raised the same issue.

"On the profound issue of when life begins, this court cannot drive public policy in one particular direction by the engine of the common law when the opposing sides, which represent so many of our citizens, are arrayed along a deep societal and philosophical divide," New Jersey Justice Barry T. Albin wrote for the court.

The ruling came in a lawsuit filed by a woman who accused a doctor of failing to give her enough information before she signed a consent form for him to perform an abortion.

Rose Acuna questioned whether Dr. Sheldon C. Turkish misled her in 1996 about the development of the pregnancy, then in the sixth or seventh week. She was 29 at the time and had two daughters following a miscarriage when she consulted Turkish, who had delivered her second child.

"According to Acuna, Turkish told her that she 'needed an abortion because (y)our kidneys are messing you up,'" court papers said. "Acuna asked Turkish whether 'the baby was already there.' According to Acuna, Turkish replied, 'Don't be stupid, it's only blood.'"

Acuna signed a consent form, and Turkish did the abortion. Bleeding continued, however, and seven weeks later Acuna went to a hospital. She was diagnosed with an incomplete abortion and had another procedure.

"According to her, one of the nurses caring for her explained that the procedure was necessary because Turkish 'had left parts of the baby inside of (her).' Thus, Acuna concluded based on the reference to 'the baby' that she had given consent to an abortion based on erroneous information," the appellate panel wrote last year.

Acuna, now 40, says she suffered emotional distress for the death of an unborn child.

Acuna's lawyer, Harold J. Cassidy, said he was considering an appeal to the U.S. Supreme Court.

"Millions of women across the nation have made the same complaint as Mrs. Acuna," said Cassidy, an anti-abortion lawyer based in Monmouth County who is also involved in the South Dakota case.

"They have lost something of great value, which is dismissed as mere tissue," added Cassidy, who is also known for successfully arguing against surrogate parenting contracts in the 1987 "Baby M" case.

The doctor's lawyer, John Zen Jackson, said "the court properly recognized there are limits to a physician's duty in obtaining a patient's consent."

In South Dakota, Planned Parenthood is challenging a 2005 law that requires abortion doctors to tell women several things, including that an abortion ends human life. It has never been enforced, however, having been put on hold by a federal judge. The lawsuit challenging its constitutionality is pending.

The American Civil Liberties Union said a class-action medical malpractice lawsuit with similar claims as those raised by Acuna was recently brought in Illinois.

Marie Tasy, executive director of the anti-abortion group New Jersey Right to Life, decried the ruling. "My reaction is that once again the court relies on an outdated schizophrenic mentality to the detriment of women and indulges in semantic gymnastics to avoid the indisputable fact that a child in the womb is a human being," she said.

The ACLU praised the decision, saying it "sends a message that New Jersey will not tolerate backdoor efforts to curtail reproductive rights or free speech," said Ed Barocas, legal director of the state's ACLU chapter.



Judge rejects bonus for NWA law firm
Court Feed News | 2007/09/12 14:09

A bankruptcy court judge on Tuesday approved $124.2 million in fees and expenses for the lawyers and advisers who helped Northwest Airlines Corp. through Chapter 11 bankruptcy. But he held off on awarding another $4.2 million in possible bonuses. U.S. Bankruptcy Judge Allan Gropper, who presided over the Eagan-based carrier's bankruptcy case, denied a petition for a $3.5 million bonus for Northwest's lead law firm, Cadwalader, Wickersham & Taft and a $700,000 bonus for creditor law firm Otterbourg, Steindler, Houston & Rosen, according to the Associated Press.

To be eligible for those payments, their work should have produced a "remarkable result" that wouldn't have been the result of ordinary performance.

The Association of Flight Attendants, the U.S. trustee on the case and a former creditor had opposed the bonuses.

Cadwalader earned $35.4 million in fees and $2.2 million in expenses. Otterrbourg earned $7 million in fees and $210,231 in expenses. They were among 24 law firms and advisers that were part of Northwest's bankruptcy team. The group included Minneapolis-based Dorsey & Whitney, which had applied for final fees of $3.2 million and expenses of $171,753, according to legal filings.




Knicks' Thomas in Court As Jury Selection Begins
Court Feed News | 2007/09/11 17:00

New York Knicks Coach Isiah Thomas and a former team executive who claims he subjected her to unwanted sexual advances appeared in federal court yesterday as jury selection began in her $10 million sexual harassment lawsuit. Thomas and his accuser, Anucha Browne Sanders, sat stoically within a few feet of each other, both flanked by teams of lawyers. Thomas, also the Knicks' president and considered one of the best players in NBA history, stood and smiled as the judge introduced him to the scores of potential jurors sitting in the gallery.

The jury pool was asked to fill out a lengthy questionnaire. One of the questions: "Do you regularly follow professional basketball or consider yourself a fan?"

U.S. District Judge Gerard Lynch also read aloud a list of names of possible witnesses, including Knicks players Stephon Marbury and Malik Rose.

During individual questioning, the judge dismissed one prospective juror, a coffee trader, after the man revealed his anguish over being fired from a job based on a co-worker's claim of inappropriate touching.

A maintenance man and Knicks fan was kept in the pool despite suggesting that game tickets were overpriced and that Thomas's track record as coach was poor. "I can speak freely? The team's not doing too well," he said as Thomas listened nearby.

Eight jurors were to be picked for a trial expected to last three weeks, meaning a verdict could come just before the Knicks open training camp.

Browne Sanders, a former Northwestern basketball star and married mother of three, wants reinstatement to her job as senior vice president of marketing and business operations. She's also seeking hefty damages after spending five years with the storied franchise.

The plaintiff contends she was fired in January 2006 "for telling the truth" while going through internal channels to stop the harassment by Thomas. Madison Square Garden, which owns the team, insisted her dismissal was because she "failed to fulfill professional responsibilities."



NY’s High Court Hears Death Penalty Arguments
Court Feed News | 2007/09/10 19:54

Prosecutors argued on Monday before New York State's highest court that the lone man remaining on the state's death row should face execution despite a landmark 2004 court ruling that effectively invalidated the state's death penalty law. The man, John B. Taylor, 43, was sentenced to death for his role in the murders of five workers at a Wendy's restaurant in Queens seven years ago. The court's decision in the case could determine not only Mr. Taylor's fate, but also the future of the death penalty in New York.

No man or woman has been executed in New York since 1963; the court ruled in 2004 that elements of a 1995 law restoring the state's death penalty made it unconstitutional. That decision left it to the State Legislature to modify the law, and opposition to the death penalty among Assembly Democrats has nullified any such effort.

But the 2004 decision was closely split, 4 votes to 3, and two of the judges in the majority have since retired. They were replaced by one appointee each of former Gov. George E. Pataki, a strong advocate for the death penalty, and Gov. Eliot Spitzer, who supports capital punishment only under narrow circumstances, as in the case of terrorists and the killers of police officers.

As in any death penalty case, the debate before the Court of Appeals on Monday was lengthy and highly technical, touching on dozens of questions of law and as many different elements of Mr. Taylor's crimes and trial. But questioning from the judges focused most intently on the prosecution's argument that the court should revisit its own 2004 decision.

In that case, the defendant, Stephen LaValle, was sentenced to death for raping and murdering a Long Island schoolteacher. As required by law, a judge told the jurors that if they could not choose unanimously between a sentence of death and one of life without parole, he would impose a sentence that would make Mr. LaValle eligible for parole after 20 to 25 years.

The Court of Appeals ruled in June 2004 that such instructions could coerce deadlocked jurors to vote for the death penalty out of fear that a violent defendant might be released from prison.

Mindful of the court's ruling, the trial judge presiding over Mr. Taylor's case, Steven W. Fisher, told a jury that he would "almost certainly" impose consecutive terms totaling more than a century if the decision were left to him, and that Mr. Taylor would be ineligible for parole until every year was served. Mr. Taylor and an accomplice, Craig Godineaux, had forced seven people into a walk-in freezer; bound and gagged the workers, and forced them to kneel before shooting each in the head.

Two survived to testify at trial. (Mr. Godineaux, who is mildly retarded, pleaded guilty to murder and is serving a life sentence without parole.) Because of Justice Fisher's careful instructions, Queens prosecutors argued on Monday, the jurors could be confident that Mr. Taylor would not walk free whatever their decision, and had voted to impose the death penalty without fear.

Under questioning, prosecutors told the judges that upholding that sentence would not amount to reversing the court's previous decision but would merely clarify part of it. The existing death penalty law could be constitutional in Mr. Taylor's case, said Donna Aldea, an assistant district attorney, even if unconstitutional in others.

"There would be no appearance of impropriety if the court unanimously agrees that the final sentence in LaValle, in fact, went too far," said Ms. Aldea.

But defense lawyers argued that because the original law that reinstated the death penalty in the state in 1995 had been rendered unconstitutional, absent legislative amendments, any death sentence stemming from it was also unconstitutional. Mr. Taylor's sentence, they said, should be changed to life without parole.

The prosecution's reasoning drew sharp questioning from some judges, including Chief Judge Judith S. Kaye. Reversing even one portion of the court's decision, she said, was the equivalent of telling the Legislature, "We didn't mean it." She also described as "fighting words" language in the prosecution's brief suggesting that the court's decision in the LaValle case was "unnecessary, inappropriate, and incorrect."

Even Judge Robert S. Smith, who sided against the 2004 decision, noted that overturning the court's own precedent — and one set so recently — would be a "radical" step.



Naked Montclair carpenter not guilty
Court Feed News | 2007/09/10 06:04

Carpenter Percy Honniball enjoys practicing his craft in the nude and, according to at least one Alameda County Superior Court judge, there is nothing legally wrong with that.

Judge Julie Conger found Honniball not guilty of indecent exposure Thursday for being naked while he worked in a Montclair home last year.

Honniball, who has a history of not wearing clothes while working, was caught in the buff in 2005 as he made repairs to the home. A neighbor had called police.

At the time, Honniball, 51, said he was more comfortable working naked and didn't want to get his clothes dirty as he sawed wood and nailed cabinets together.

Police arrested Honniball for indecent exposure, a crime that includes public nudity and acting lewdly by intending to direct attention to one's genitals for sexual gratification.

If convicted of indecent exposure, a person could be sentenced to a year in jail and be required to register as a sex offender.

While there is no dispute Honniball was naked, Conger found that the carpenter was not acting lewdly, nor did he attempt to bring attention to his genitals for the purpose of sexual gratification.

"What he learned was that you can get in trouble even when you do legal things," said David Beauvais, Honniball's attorney. "Even though there is a reaction, on the part of some people, to nudity . . . it is not enough to charge somebody with this."

Honniball could not be reached for comment, but last year he said in an interview, "The primary reason is so I won't dirty my clothes and have to get into my truck with dusty clothes on. "It's more comfortable," he said.

Honniball knew working in the nude caused problems.

The carpenter was caught three times working naked in Berkeley. In 2003, he was given two years probation for violating Berkeley's ban on public nudity.

Oakland does not have such a ban.

"For Honniball, he feels that it facilitates his work; he has better range of movement," Beauvais said. "I could tell you some stories about nail guns, but we won't get into that."



Tennessee court rejects Winkler custody case
Court Feed News | 2007/09/05 14:32
Mary Winkler's efforts to regain custody of her three daughters suffered another blow Tuesday. The Tennessee Supreme Court, in an order issued in Jackson, denied Winkler's request for a hearing on an Appeals Court decision that will not allow her custody petition in juvenile court to proceed. Mary Winkler was convicted in April and sentenced in May on a conviction of voluntary manslaughter in the death of her husband, Matthew Winkler, a Church of Christ minister in Selmer.

After the conviction, Matthew Winkler's parents filed a suit to terminate Mary Winkler's parental rights and to adopt the girls - Patricia, 9, Allie, 7, and Brianna, 2.

Dan and Diane Winkler have cared for the girls since Mary Winkler was arrested in March 2006, after Matthew Winkler's death.

Tennessee law places adoption petitions, which are heard in chancery court, ahead of custody petitions heard in juvenile court. The Court of Appeals decision allowed Dan and Diane Winkler to continue pursuing permanent custody of the girls, and this week's Tennessee Supreme Court ruling lets this decision stand.

The Supreme Court's order further assessed all court costs in the matter to Mary Winkler, who received donated legal services during her murder trial.


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