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Ga. top court finishes hearing Wilson's appeal
Lawyer Blog News | 2007/07/21 17:55

The Georgia Supreme Court heard arguments Friday morning on a pair of appeals in the closely watched Genarlow Wilson case, though no ruling was expected immediately. The courtroom was packed for the hearing, and arguments were broadcast live over the Internet. The hearing came after justices decided earlier this month to speed up the process in the case of Wilson, the Douglas County man imprisoned for receiving oral sex from a 15-year-old girl when he was 17. Wilson's attorneys argue his 10-year prison sentence is cruel and unusual punishment.

The justices are considering two appeals in the case.

Georgia Attorney General Thurbert Baker is appealing a Monroe County Superior Court judge's decision to reduce Wilson's felony conviction to a misdemeanor and free him from prison. Baker said the judge overstepped his authority when he granted Wilson's motion last month.

Following the Monroe County judge's decision, Wilson's attorneys requested he be released on bond pending Baker's appeal, but on June 27, the trial court in Douglas County denied the request. Wilson's attorneys have appealed that decision.

B.J. Bernstein, Wilson's attorney, addressed the bond issue first at Friday's hearing, arguing for 10 minutes that her client should be granted bond while his case is under appeal.

"Every day that a defendant spends in jail is a precious day in their life," Bernstein told the justices. Bernstein said that in the past 10 days, "two clients of mine died in prison."

Bernstein argued that the trial court, in refusing bond, improperly applied the criminal appeal bond statute when it should have applied the habeas bond statute, since the Monroe County judge had ruled on a writ of habeas corpus, determining that Wilson had the right to make a claim of cruel and unusual punishment.

However, Douglas County District Attorney David McDade, the original prosecutor on Wilson's case, countered in his time before the justices that state law is clear that "no appeal bond shall be granted to any person who is convicted of a list of crimes, and aggravated child molestation is included in that list."

"It's not vague. It's not gray. It's not subject to interpretation," McDade said. "It is the plain letter of the law that applies in this case."

In its appeal of the reduction of the felony conviction to a misdemeanor, the state has argued that the ruling could open the door for many other sexual criminals to have their sentences reduced.

Wilson's attorneys argued that such fears are invalid and do not justify maintaining such a harsh sentence for consensual teen sex.

Video cameras and still photographers lined the walls well before the arguments began. Outside, satellite trucks and Georgia State Patrol cars were parked all along the street, and security was high. Officers were posted all around the building and on the floor where the Supreme Court meets.

Former state Rep. Matthew Towery, the author of the 1995 law Wilson was charged with violating, submitted a friend of the court brief supporting his release.

"The General Assembly never intended for the Child Protection Act's harsh felony sentences designed to punish adults who prey on children to be used to punish consensual sexual acts between teenagers close in age," Towery's brief said.

The state Legislature in 2006 changed the law, making oral sex between teens close in age a misdemeanor. The state Court of Appeals ruled that the new lasaveClicked(kSaveBtn,null,true)w could not be applied retroactively and the state Supreme Court upheld that ruling.

Bernstein argued in her legal brief that the move by state lawmakers to change the law marked a "tectonic shift in how Georgia views voluntary consensual teen sex and its punishment."

"The new reality is that teen sexual experimentation is commonplace in an era where the media bombards teens with sexual imagery," she wrote.

Bernstein said it is extremely rare in Georgia for lawmakers to pass legislation softening punishment, especially for an emotionally charged crime like child molestation.

But the state countered that it is well established that criminals are subject to the penalty that is in place when they violate the law. To begin to apply legislative changes retroactively would invite chaos and have a far-reaching effect throughout the criminal justice system, Baker argued.

"The decision in this case not only affects Petitioner, but it potentially affects countless others who may be in the prison system or on probation or who have completed their sentences," he wrote.



Court Gags Broadway Beast Actor's Lawyer
Lawyer Blog News | 2007/07/20 08:04

A lawyer for a Broadway actor accused of having sexual contact with a 15-year-old girl may not publicize the teen's name in an effort to learn whether she has falsely accused anyone of molesting her, an appeals court ruled Thursday. The appeals court rejected the attempt by lawyer Ronald P. Fischetti to lift the limited gag order imposed on him by the judge who is overseeing the sex abuse case of actor James Barbour, who played the beast in Disney's "Beauty and the Beast."

Fischetti told a lower court judge the district attorney's office set up a telephone hot line to receive calls about Barbour and he wanted to do something similar.

"I want to put up a hot line with her (the victim's) name on it (and place it) in the newspapers," Fischetti said. "We believe that this alleged victim has made these false allegations before."

The court upheld the judge's decision not to allow it, saying that Fischetti had shown no good faith basis for suggesting the girl had a history of falsely accusing anyone. It said that without such a showing, the policy interest of having sex crimes victims come forward without fear of exposure "outweighs what would amount to a fishing expedition."

Barbour, 40, pleaded not guilty in December to charges of sexual abuse and criminal sex act against the girl, a fan and aspiring actress, in 2001.

Barbour was starring in "Jane Eyre," and a high school drama teacher arranged for the girl and her parents to see the musical. The girl, now 20, went backstage alone after the show, and Barbour began touching her sexually, prosecutors said.



Patent Reform Bill Moves Forward in U.S. House
Lawyer Blog News | 2007/07/19 17:00

Tech has a friend in the house. In a unanimous voice vote, the U.S. House Judiciary Committee this week endorsed patent-reform legislation, which the tech industry has been pushing for decades. The Patent Reform Act of 2007 would allow a second review of patents after they have been granted to challenge the validity of a newly issued patent. The bill would also narrow the definition of willful infringement, which brings treble damages in infringement lawsuits. The legislation also calls for limiting infringement damages to the economic value of the patent's contribution to an overall product. Currently, damages are based on the entire market value of the product.

The bill also implements a first-to-file standard consistent with international practice.

"Intellectual property industries not only drive a significant part of the American economy, but also provide millions of Americans with well-paying jobs," bill co-sponsor Lamar Smith (R-Texas) said in a statement. "The Patent Reform Act protects intellectual property by addressing critical weaknesses in the current law and eliminating the legal gamesmanship that rewards lawsuit abuses over creativity."

The bill now goes before the full U.S. House for an as yet unscheduled floor vote. Similar legislation is pending before the Senate Judiciary Committee, which has a vote scheduled on the bill Thursday.

Since the legislation was first introduced in April, the pharmaceutical, bio-technology and manufacturing companies have lined up to oppose the key portions of the legislation.

Wednesday, though, that opposition seemed to be lessening.

"The leadership and several members of the committee recognized that changes to the bill are still necessary and we look forward to working with them to further improve the bill," 3M's Gary Griswold, representing the Coalition for 21st Century Patent Reform, said in a statement. "While there is still much work to do before the coalition can support the legislation, we are encouraged by the incremental progress made during today's mark-up."

Griswold added that while the group, which includes Eli Lilly, General Electric, Johnson & Johnson and Proctor & Gamble, still has "serious concerns" about the bill, amendments to it approved Wednesday were a "positive step." The amendments narrow the "second window" of post-grant reviews.

Last week, the Senate Judiciary Committee approved much the same amendments.

According to Sen. Patrick Leahy, infringement damages would be limited, "unless the claimant shows that the patent's specific contribution over the prior art is the predominant basis for market demand for an infringing product or process."

Sen. Arlen Specter (R-Penn.) added an amendment that seeks to eliminate the popular practice of "forum shopping" by limiting venues for patent-infringement cases.

"Few issues are as important to the economic strength of the United States as our ability to create and protect intellectual property," Smith said. "The Patent Reform Act of 2007 updates current law to better protect intellectual property, enhance patent quality and increase public confidence in the integrity of patents."



Microsoft Hit With A Second Xbox 360 Class Action Suit
Lawyer Blog News | 2007/07/19 14:02

Microsoft has been hit with a new class action lawsuit alleging that the company's Xbox 360 console damages game discs.

"Microsoft improperly and/or negligently manufactured the Xbox 360 console in a manner that causes the expensive game discs ... to be scratched, rendering the games unusable," the suit alleges.

The complaint was filed Monday in the U.S. District Court for Southern California by two residents of the state: Christine Moskowitz and Dan Wood. The suit is seeking not less than $5 million in damages for Xbox 360 buyers affected by the alleged glitch.

Microsoft was slapped with a similar action last week in a Florida court.

In the California court filing, Moskowitz says that in March 2006 she purchased for her son an Xbox 360, along with the popular games Gears of War, Crackdown, and Saints Row. Within a few months, the games bore circular scratch marks and wouldn't work properly, Moskowitz claims. Wood says he purchased an Xbox 360 last December and the unit soon damaged his copy of Tom Clancy's Splinter Cell.

Both plaintiffs claim that the Xbox 360 console damaged their discs and that Microsoft refused to replace the ruined games or pay for them.

Earlier this month, Microsoft acknowledged that a hardware defect in the console was leading to what the company called "an unacceptable number" of general hardware failures. To deal with the problem, Microsoft said it would extend the warranty period on the units by three years, at a cost of between $1.05 billion and $1.15 billion.

The company made no mention of a disc scratching problem, however.

On Tuesday, Microsoft announced that Xbox division head Peter Moore was leaving the company to take a position at games publisher Electronic Arts.

In their lawsuit, Moskowitz and Wood argue that Microsoft's scramble to get a next-generation video game system into the market to compete with those from rivals Sony and Nintendo is at the root of the Xbox 360's problems. "Microsoft's rush to market, while positive for Microsoft, was detrimental to consumers because the Xbox 360 suffered from numerous hardware defects," the suit claims.

Responding to the Florida lawsuit, a Microsoft spokesman told InformationWeek that the company has not received a significant number of complaints about scratched discs, despite the fact that "there are millions of Xbox consoles in use."



Court upholds Phila. waterfront casinos
Lawyer Blog News | 2007/07/18 16:28

The Pennsylvania Supreme Court upheld the decision to allow the development of two waterfront casinos in Philadelphia.

The decision affirms the decision of state regulators to allow Foxwoods Casino Philadelphia and SugarHouse Casino to open slots parlors on Columbus Boulevard in Philadelphia. The case was brought by a rival casino proposal whose application was rejected.

However, both casinos must still get city approvals. The casinos could open as early as next year, pending city approvals.

It's likely neighborhood groups, who have fought the proposals, will continue their opposition.



Court upholds Phila. waterfront casinos
Lawyer Blog News | 2007/07/18 09:29

The Pennsylvania Supreme Court upheld the decision to allow the development of two waterfront casinos in Philadelphia.

The decision affirms the decision of state regulators to allow Foxwoods Casino Philadelphia and SugarHouse Casino to open slots parlors on Columbus Boulevard in Philadelphia. The case was brought by a rival casino proposal whose application was rejected.

However, both casinos must still get city approvals. The casinos could open as early as next year, pending city approvals.

It's likely neighborhood groups, who have fought the proposals, will continue their opposition.



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