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Today's Date: 4/27/125 | 5:14 P.M. U.S. Attorney News Feed
Supreme Court to hear Indiana voter ID law
Lawyer Blog News | 2008/01/09 15:47
Democrats and Republicans square off before the Supreme Court Wednesday over a law that requires voters to produce photo identification before they can cast a ballot. The strictest voter ID law in the nation was passed by Indiana's Republican-led legislature on party-line votes and signed by its Republican governor in 2005 as a way to deter voter fraud. The Bush administration supports Indiana's law.

Democrats who are challenging the law say it uses prevention of fraud as a pretext to discourage elderly, poor and minority voters — those most likely to lack proper ID and who tend to vote for Democrats.

Opponents say there have been no Indiana prosecutions of in-person voter fraud — the kind the law is supposed to prevent.

A federal judge who upheld the voter ID law pointed out that opponents were unable to produce evidence of a single, individual Indiana resident who had been barred from voting because of the law.

Courts have upheld voter ID laws in Arizona, Georgia and Michigan, but struck down Missouri's. Wednesday's case should be decided by late June, in time for the November 2008 elections.

The justices could use the case to instruct courts on how to weigh claims of voter fraud versus those of disenfranchisement.

The Supreme Court was bitterly divided, 5-4, in 2000 in Bush v. Gore, the case that clinched the presidential election for George W. Bush.

The consolidated cases are Crawford v. Marion County Election Board, 07-21, and Indiana Democratic Party v. Rokita, 07-25.



Supreme Court rules against local firm
Lawyer Blog News | 2008/01/09 12:48
A Lapeer County gravel operation lost out to the federal government on Tuesday in a U.S. Supreme Court ruling that could influence thousands of similar cases.

In a 7-2 ruling, the justices said Metamora-based John R. Sand & Gravel Co. waited too long to sue the U.S. Environmental Protection Agency for property it seized as a Superfund cleanup site.

Justice Stephen Breyer said a federal appeals court was correct in raising the deadline question without being asked to do so by either party, and to rule that the company missed the deadline.

In some instances, such as lawsuits against the government, the Supreme Court "has often read the time limits ... as more absolute," Breyer wrote.

Justice John Paul Stevens dissented, saying the majority's decision "has a hollow ring" because the court previously had overturned a precedent that it relied on for Tuesday's decision.

Justice Ruth Bader Ginsburg joined Stevens in dissent.

"We're very disappointed in this ruling," said Jeff Haynes, a Bloomfield Hills attorney who represented the gravel company.

The decision ends the company's chances to collect any compensation from the EPA and will prompt other claimants to sue "early and often" to avoid a similar fate, Haynes said.

John R. sued the EPA in 2002 after the agency permanently fenced off 40 acres of land the company was leasing from a property owner.

Some of the seized property had been used as a municipal dump until about 1980 and was considered a hazardous waste site, although a portion contained clean sand and gravel, Haynes said.

The case initially was filed in the U.S. Court of Federal Claims, which hears claims involving the taking of private property without fair compensation.

The high court reviewed an appeal panel's finding that the John R. suit was barred by the six-year statue of limitations.

The EPA originally agreed that the case had been filed in a timely manner and didn't raise the statute of limitations issue, Haynes said.

But companies hired to clean up landfills intervened as friends of the court and raised the jurisdictional question, he said.

The appeals panel and the Supreme Court held that the clock started running when the EPA began erecting a series of temporary fences -- not when it permanently seized the 40 acres, Haynes said.

The effect of the high court's ruling is that judges at each step in the process will have to rule on time-limit issues in cases brought for money damages against the government, he said.

And anyone who wants to sue the federal government for taking private property without compensation will have to bring their claim as early as possible or risk having it tossed out, he said.

"We'll have a lot more needless lawsuits because property owners are going to have to protect their rights," Haynes said.

The Supreme Court didn't consider whether John R. was entitled to compensation by the EPA.

Haynes said the company valued the confiscated land at $8 million, while the EPA valued it at $250,000.



High Court to Announce Opinions Tuesday
Lawyer Blog News | 2008/01/08 20:54
Several Supreme Court justices indicated yesterday that it may be difficult for them to definitely answer whether or when lethal injections violate the Constitution's protection from cruel and unusual punishment.

The morning arguments before the court came in a Kentucky case that has led to a halt to executions across the country. A lawyer arguing on behalf of two Kentucky death row inmates told the court that the three-drug protocol used by states and the federal government carries the potential to cause unnecessary and excruciating pain during executions.

"The risk here is real. That is why in the state of Kentucky it is unlawful to euthanize animals in the way it carries out its executions," said Washington lawyer Donald B. Verrilli Jr., who is representing Ralph Baze and Thomas Bowling in the case, Baze v. Rees.

The main problem, the court was told, is the second drug in the sequence, which paralyzes the muscles. If the inmate is not properly anesthetized, the paralytic could mask whether the condemned is in tortuous pain.

Justice John Paul Stevens said he was "deeply troubled" by the use of the second drug, but that there was nothing in the record in the Kentucky case that raised the issue in a way for the Supreme Court to make a definitive ruling. Kentucky, he said, seemed to have done a good job of administering the drugs in the state's only execution by lethal injection.

Justices David Souter and Stephen Breyer also said it might be better to send the case back to lower courts for a comparative analysis of whether the three-drug process carries more risk than an alternative, which uses only a massive dose of a barbiturate.



Navy must cut sonar use off California
Lawyer Blog News | 2008/01/04 16:33
A federal judge in Los Angeles on Thursday ordered the toughest set of restrictions ever imposed on the U.S. Navy's use of mid-frequency sonar off the Southern California coast as part of a protracted court battle to protect whales and other marine mammals from underwater sonic blasts. The order was the first time the judge has spelled out specific rules the Navy must follow to avoid a court-imposed ban on training missions with a type of sonar that has been linked to the death and panicked behavior of whales and dolphins.

U.S. District Judge Florence-Marie Cooper ordered the Navy to refrain from using the powerful submarine-hunting sonar within 12 miles of the coast, a corridor heavily used by migrating gray whales, dolphins and other marine mammals.

She also ordered that the Navy spend an hour before it starts any training mission searching for marine mammals in the area and that it continue using shipboard observers and aircraft to monitor for whales and dolphins while the sonar is in use.

If any marine mammals are spotted within 2,200 yards of a ship using sonar, the Navy will have to cease its use immediately.

In her 18-page order, Cooper said the Navy's proposed strategy of slowly reducing sonar power and then shutting it off when whales or dolphins come within 200 yards "is grossly inadequate to protect marine mammals from debilitation levels of sonar exposure."

The judge, who has spent years poring over studies about whale deaths and injuries after Navy exercises, has suggested in her rulings that she wants to balance competing interests of national security and fleet readiness with environmental protections.

She noted that the Navy's own study concluded that upcoming exercises off Southern California "will cause widespread harm to nearly 30 species of marine mammals, including five species of endangered whales and may cause permanent injury and death."

Because scientists have chronicled panicked responses from marine mammals as far as 40 kilometers away, Cooper said the 2,200-yard shutdown requirement "represents a minimal imposition of the Navy's training exercises" while preventing the harshest sonar-related consequences.

Cmdr. Jeff Davis, a Navy spokesman, said the Navy is considering its options.

"Despite the care the court took in crafting its order, we do not believe it struck the right balance between national security and environmental concerns," Davis said.

Davis said the Navy is mostly concerned about having to shut down sonar completely in a safety buffer zone that is far larger than it planned. Defense lawyers argued that the scientific evidence doesn't clearly show such safeguards are necessary.

The Navy has also asserted that some restrictions may hamper its ability to adequately train its sailors in antisubmarine warfare and may put sailors and national security at risk of attack by the quiet diesel-electric submarines operated by some potentially hostile nations in various hot spots around the globe.

Meanwhile, environmental groups and a state official considered the order a victory.

"It's a complete vindication" of the California Coastal Commission's actions, said Peter Douglas, the commission's executive director. "We know there are things that the Navy can do to protect marine mammals while they conduct their exercises, but the Navy refused. The court said, 'No, you have to comply.' "

The Coastal Commission, which has the legal authority to comment on federal activities off the California coast, joined a lawsuit brought by the Natural Resources Defense Council and other environmental groups that have tried to force the Navy to take greater precautions.

"We've said from the beginning that we don't want to stop the Navy from training but substantially increase protections against unnecessary harm to whales and other marine mammals," said Joel Reynolds, a senior attorney with the Natural Resources Defense Council. "This order does that."

In addition to the 12-mile buffer along the coast, the judge forbade the use of mid-frequency active sonar in the Catalina Basin, an underwater canyon between Santa Catalina Island and the Navy-owned San Clemente Island, because it's an area known to have a high density of whales.

But the judge refused to bar the Navy from conducting exercises off the Tanner and Cortez banks, and the Westfall seamount -- undersea mountains that tend to attract whales. Nor would she set any restrictions on operations at night or in the fog or other times of low visibility, when spotting marine mammals may prove difficult.

Instead, she opted for a more rigorous effort to keep watch for whales, including using passive acoustic monitoring to listen for whale clicks, chirps and songs -- especially for those of deep-diving beaked whales, which appear to be particularly sensitive to sonar activities. These mysterious whales have washed ashore injured or dead after naval exercises using mid-frequency sonar in the Bahamas in 2000 and the Canary Islands in 2003.

In August, Cooper issued a temporary injunction banning all training exercises off Southern California waters until she could sort out the merits of the lawsuit. The Navy took the case to the U.S. 9th Circuit Court of Appeals, which instructed Cooper to narrow her injunction to specific safeguards the Navy could adopt to continue its training missions while the legal issues are thrashed out in court.


Fla.: Feds Approve Gambling Agreement
Lawyer Blog News | 2008/01/03 17:06

Federal authorities approved an agreement between Gov. Charlie Crist and the Seminole Tribe that allows expanded gambling at the tribe's casinos in exchange for payments to the state, officials said. Attorney General Bill McCollum and the governor's office said the U.S. Department of the Interior on Monday approved the compact Crist signed with the tribe. It now has to be published in the Federal Register to take effect. It was not immediately clear when that would happen, and a spokeswoman for the department's Bureau of Indian Affairs didn't return a call seeking comment.

McCollum said he is asking a federal judge to quickly hold a hearing on a lawsuit he filed last month to keep the agreement from going into effect until the Florida Supreme Court decides whether Crist was authorized to sign the compact without legislative approval.

The agreement allows Las Vegas-style slots and card games like blackjack and baccarat at the Seminole's seven casinos. The state would get $50 million immediately and $100 million guaranteed in the first year. In the second year, the state is guaranteed $125 million and at least $150 million in the third year. Following that, the amount depends on revenues - but everyone involved in the negotiations said it will quickly add up to billions.

Without the compact, the tribe would have at least been able to install Las Vegas style slots without paying any money to the state because the Florida approved slots at Broward County jai-alai frontons and horse and dog tracks.

Crist signed the compact in November. House Speaker Marco Rubio and Senate President Ken Pruitt are challenging Crist's authority to enter into the agreement on his own and the Supreme Court plans a hearing on the case Jan. 30.



Public Defender Builds Injection Case
Lawyer Blog News | 2008/01/02 15:25
One of the biggest capital punishment cases to come before the U.S. Supreme Court in a generation was put together largely by a young, fresh-out-of-law-school member of Kentucky's overworked and underpaid corps of public defenders.

David Barron, 29, filed an appeal on behalf of two Kentucky death row inmates, arguing that the three-drug cocktail used in lethal injections across the country can cause excruciating pain, and thus amounts to cruel and unusual punishment in violation of the Eighth Amendment to the Constitution.

After three years of long hours on Barron's part, the Supreme Court agreed to hear arguments in the case on Jan. 7.

"I can't believe I've got a case before the Supreme Court and I'm not even 30 years old," Barron said.

This is the first time in more than a century that the high court will address the legality of a method of execution. Thirty-six states use lethal injection, and executions across the U.S. have come to a halt in the meantime.

Barron, an assistant public defender, arrived in Kentucky in 2004, just over a year out of law school, to represent some of the worst of the worst — death row inmates. He was admitted to the Kentucky bar in July of that year, and filed his lethal-injection challenge the following September, employing a strategy he had tested out in other jurisdictions.

He was paired with John Palombi, a fellow public defender with at least a decade of experience.

The challenge was brought on behalf of convicted cop killer Ralph Baze and Thomas Clyde Bowling, who was found guilty of killing a couple. Barron lost the cruel-and-unusual argument at a trial and at the Kentucky Supreme Court. But he kept pushing the case, hoping to keep his clients alive a bit longer.

He beat long odds: The Supreme Court gets as many as 7,000 petitions a year but agrees to hear only 100 to 150 cases.

Lethal injections have come under legal attack around the country in recent years, with experts and others arguing that it is not the humane, painless method of execution it was supposed to be.

Legal experts said the Kentucky case apparently got the attention of the high court because it arrived fully developed — it went through a full-blown trial with more than 20 witnesses, who argued both sides of the question of whether inmates suffer extreme pain while immobilized, unable to cry out.

Death penalty proponent Kent Scheidegger, legal director of the Criminal Justice Legal Foundation, said the case gives the Supreme Court "a clear shot at the merits of the injection question."

"The trial court took extensive testimony, building a substantial record. That makes a better case for review than one decided summarily in the trial court," Scheidegger said.

The challenge is the ninth case the Kentucky's public defenders have gotten before the high court in the past three decades. Among the others was the landmark 1986 ruling Batson v. Kentucky, in which the Supreme Court found it unconstitutional to dismiss a juror because of his race.

Barron works in the public defender's capital post-conviction unit, a corps of 10 attorneys who handle appeals for Kentucky's 38 death row inmates.

The unit's chief is the only one who has ever argued a case before the U.S. Supreme Court. In fact, for this case, the public defender's office is bringing in Donald Verrilli, a Washington lawyer who frequently appears before the high court, to argue the challenge.

Such a move is not uncommon. Only those who are admitted to the bar of the Supreme Court can argue before the justices.

The shaggy-haired Barron — a Billerica, Mass., native who received a law degree from Brooklyn Law School in 2003 — can be found in his office at nearly all hours. His office is about the size of a walk-in closet and is so cluttered that Barron must move boxes and books for visitors to sit down.

Barron is a hardcore Boston Red Sox fan, papering his office door with pictures and headlines. He draws professional hope from the way the Red Sox finally won the World Series after 86 years of futility.

"There's something to be said about representing the people who society casts aside," Barron said. "They are the ones often left to fend for themselves."

Public defenders work one of the lowest rungs of the legal profession, one that is often not very highly regarded by other lawyers. Many young lawyers right out of law school often get their start as public defenders, and often race from case to case with barely enough time to read the file, much less do the in-depth investigation attorneys in private practice can do.

Public defenders have traditionally received little funding, particularly in the South. Kentucky has one of the lowest-funded offices in the country.

The starting pay for most Kentucky's public defenders is about $38,000 a year.

Kentucky spends about $33.5 million in 2005 (the last year for which numbers were available) on a population of 4.1 million. That's about $8.14 per person for public defense — 23rd among the 30 state-run public defender offices nationally. Oregon leads the nation at $23.75 spent per person.

"It's an uphill battle," said Ernie Lewis, head of the Kentucky Department of Public Advocacy. "We can't provide an O.J. defense."



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