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Court ruling clouds naming of Major League players
Lawyer Blog News | 2008/01/25 16:42

A federal appeals court has for the second time generally sided with Justice Department efforts to use the names and urine samples of about 100 Major League baseball players who tested positive for steroids four years ago.

But the convoluted 119-page ruling likely means federal investigators will still be unable use the controversial test results for the foreseeable future because the issue is expected to be tied up in the courts for some time.

The 9th U.S. Circuit Court of Appeal's conclusions could ultimately expose yet more names of players who tested positive for steroids in the league's 2003 anonymous testing program, beyond the recently released Mitchell report on steroids in baseball. Federal investigators seized the drug testing records of dozens of players in 2004 in connection with the Balco steroids scandal.

The showdown over the drug tests could have an impact on the perjury case against former Giants star Barry Bonds if the government obtained evidence of steroid use, although the slugger's lawyers have always insisted it has no bearing on him. The perjury indictment against Bonds already alleges that he failed a separate steroids test in 2000.

Meanwhile, the 9th Circuit - as it did in a 2006 ruling - mostly rejected the arguments of the players' union, which has insisted the seizure of the drug-testing records trampled on the medical privacy rights of the athletes and violated federal protections against unreasonable search and seizure. The appeals court in 2006 had overturned rulings in San Francisco, Los Angeles and Nevada in which the federal judges there found the government searches illegal. This recent decision upheld the majority of that previous ruling.

But it did hand the government one setback by concluding that prosecutors botched their appeal of the Los Angeles judge's ruling by filing it too late. As a result, the government may encounter a stumbling block to using some of the seized information out of the Los Angeles case, although the 9th Circuit's ruling appears to give investigators access to virtually all of the testing information they sought.

The 9th Circuit invited both sides to ask the appeals court to rehear the case with an 11-judge panel, which could delay the case.

Elliot Peters, the lawyer for the players' union, said they would need to review the ruling before deciding whether to press another appeal. Assistant U.S. Attorney Matthew Parrella declined comment.

Federal investigators connected to the Balco case seized computer files in 2004 that contained results from the 2003 testing program, which was designed to evaluate the scope of steroid use in the sport. The players' union and baseball owners had agreed to keep the results of the testing confidential.

The government originally sought the results for 10 players linked to Balco, including Bonds, New York Yankees slugger Jason Giambi and Detroit Tigers outfielder Gary Sheffield. But when investigators seized the records of dozens of other players, it triggered a legal battle pitting government powers to search computer databases with sensitive medical information against the privacy rights of the players.

9th Circuit Judge Sidney Thomas, who dissented in both the 2006 and Thursday's rulings, warned that allowing the searches would have "profound consequences for the constitutional right against illegal search and seizure."



Ohio Court Debates Rights to Body Parts
Lawyer Blog News | 2008/01/24 17:37
Justices appeared skeptical of both sides in a state Supreme Court hearing on whether the brain, heart and other body parts removed during an autopsy should be returned to the relatives of the deceased instead of being destroyed.

The case heard Wednesday pits coroners against parents of a 30-year-old man who discovered years after his death that they had buried him without his brain.

During oral arguments Wednesday, Justice Paul Pfeifer at one point called "totally lame" an argument by coroners' attorneys that coroners would be less likely to do thorough autopsies if property rights were involved.

At another moment, another justice, Evelyn Lundberg Stratton, asked an attorney for the family to cite the Constitution to bolster his legal argument, asking where guarantees of liberty or property fit into the case.

Christopher Albrecht died in December 2001 when he suddenly plunged his vehicle into a pond. The coroner determined that an epileptic seizure prompted his accident, but that his death was caused by drowning.

Albrecht's parents learned years later that they had buried him without a brain. They filed a lawsuit against coroners and commissioners in 87 of Ohio's 88 counties.

The case has drawn attention because of its possible impact on coroners, crime investigators, emergency medical technicians, funeral directors and followers of religions that espouse the importance of burying the whole body.

Coroners' attorneys say guaranteeing families the right to the organs, tissue, blood and other fluids extracted during an autopsy could jeopardize criminal evidence.

"Plaintiffs would have you believe that you can do an autopsy and still return all of the body," Mark Landes, a lawyer representing the coroners, told the judges. "That's a definitional impossibility."

Brains are particularly difficult to reunite with a body in time for burial, because it takes three to 14 days to prepare them for examination.

In a brief, the Medical Examiners Association said material from a dead body is almost always lost. Bodies lose fluids at accident scenes and parts of some bodies are never found, the group said.

Under Ohio law, brains, hearts and other body parts and fluids removed during an autopsy are classified as medical waste, which generally means they are incinerated after use.

Justice Maureen O'Connor suggested to attorneys for the family that allowing their legal argument to prevail would have a sweeping impact on the entire medical profession.

Attorneys for the family have been taken to task by the court for making a legal question too emotional. Some briefs have contained references to Achilles' slaying of Hector in "The Iliad," the drowning of Shakespeare's Ophelia and poet Walt Whitman's "I Sing The Body Electric."

Lawyers for the coroners at one point tried and failed to get one particularly verbose submission — which traced the history of death from ancient to modern times — stricken from the record.



Ohio Court Debates Rights to Body Parts
Lawyer Blog News | 2008/01/23 16:22
During an autopsy, the Hamilton County coroner removed Christopher Albrecht's brain and never put it back — a common practice for coroners.

But when Albrecht's parents learned years later that they had buried him without a brain, they filed a lawsuit that raises ethical, moral and religious questions about the treatment of one's body after death.

The case, to be argued Wednesday before the Ohio Supreme Court, has drawn international attention for its ramifications to coroners, crime investigators, EMTs, funeral directors and followers of religions that espouse the importance of burying the whole body.

The Albrechts argue that they had a right under the Ohio Constitution to their son's brain, and a right under the U.S. Constitution to reclaim the brain before it was destroyed. The lawsuit is a class action suit against coroners and commissioners in 87 of Ohio's 88 counties covering cases dating to 1991.

Under Ohio law, brains, hearts and other body parts and fluids removed during an autopsy are classified as medical waste, which generally means they are incinerated after use.

"What this case really comes down to is, for the convenience of the government, are we Ohioans, we humans, supposed to give up our most basic rights to the human remains of our loved ones?" said John Metz, an attorney who brought the Albrechts' suit. "I am absolutely amazed to have to be standing in front of the highest court in our state to defend against such a socialist view."

Defenders of the coroners, including the Ohio State Coroners Association, Ohio State Medical Association and the National Association of Medical Examiners, contend that establishing property rights for families to the organs, tissue, blood and other fluids extracted during an autopsy could jeopardize timely autopsies and jeopardize criminal evidence.

"The longer you wait to perform an autopsy, the more evidence and information you lose," said Elizabeth Mason, an assistant Clermont County prosecutor leading the county coroners' defense.

Brains are particularly difficult to reunite with a body in time for burial, because it takes three to 14 days to prepare them for examination.

Mason anticipates an onslaught of litigation against counties if the Albrechts prevail. Relatives are often upset about autopsies taking place, and may begin negotiating with coroners about what to do with body parts. But relatives may not always agree with each other.

"I call that the 'Chicken-Little-Sky-Is-Falling' defense," Metz said. "We recognize you, as the state, have a right to our loved one's body to do an autopsy. But once you're done, all you have to do is pick up the phone and talk to these people, and say, 'I'm done with your child's heart.'"

Metz and co-counsel Patrick Perotti have been taken to task before the court for making a legal question too emotional. Perotti's briefs have contained references to Achilles' slaying of Hector in The Iliad, the drowning of Shakespeare's Ophelia and poet Walt Whitman's "I Sing The Body Electric."

Lawyers for the coroners at one point tried and failed to get one particularly verbose submission — which traced the history of death from ancient to modern times — stricken from the record.

"We don't dispute that it is a cultural norm for us to accord that kind of respect for our dead," Mason said. "But that doesn't mean that when they went out to get Hector's body back, they scraped up every drop of blood to make sure they got everything."

In a brief, the Medical Examiners Association said material from a dead body is almost always lost. Bodies lose fluids at accident scenes and parts of some bodies are never found, the group said.

It argued that material taken by coroners is being singled out unfairly in this case.

Christopher Albrecht, 30, died in December 2001 when he suddenly plunged his vehicle into a pond.

The coroner determined that an epileptic seizure prompted his accident, but that his death was caused by drowning.

According to the autopsy, a portion of his brain had been removed during his life as part of a surgical procedure related to his epilepsy.



Court Rules Inmates Can't Sue for Property Loss
Lawyer Blog News | 2008/01/23 12:31

Abdus-Shahid M.S. Ali's lawsuit against prison guards was based on allegations of harassment and mistreatment. But the Supreme Court's decision yesterday that he is barred from suing rests on an ambiguous federal statute that has confounded the courts and sharply divided the justices.

It involves the word "any."

Ali's lawsuit alleging a missing Koran and prayer rug is barred under the Federal Tort Claims Act, the court said in a 5 to 4 ruling, because the law includes prison guards among those immune from suit.

The confusion in the courts comes because the immunity is mentioned in a section of the law that blocks lawsuits against the government over the "loss of goods, merchandise or other property" detained by customs or excise officers. The law then adds "or any other law enforcement officer."

"Congress could not have chosen a more all-encompassing phrase than 'any other law enforcement officer' " to show that it intended broad immunity, Justice Clarence Thomas wrote for the majority. Therefore, the law "forecloses lawsuits against the United States for the unlawful detention of property by 'any' not just 'some,' law enforcement officers."

Thomas was joined by Chief Justice John G. Roberts Jr. and Justices Antonin Scalia, Ruth Bader Ginsburg and Samuel A. Alito Jr.

Justice Anthony M. Kennedy wrote the dissent for the rest of the court. He said the court was wrong not to look at the context of the statute -- that it related to customs rather than prisons -- and said the implications of the decision were great.

"The seizure of property by an officer raises serious concerns for the liberty of our people and the Act should not be read to permit appropriation of property without a remedy in tort by language so obscure and indirect," Kennedy wrote.

Ali said in lower-court proceedings that the Koran, prayer rug and other religious materials -- worth about $177 -- went missing during his transfer from a federal penitentiary in Atlanta to Big Sandy prison in Kentucky. He alleged it was one of a number of incidents of mistreatment and harassment of Muslim prisoners.

But a district court said the lawsuit was barred by federal law, and the U.S. Court of Appeals for the 11th Circuit agreed. It is one of six circuits that have read the law to cover all law enforcement officers, in the same manner as Thomas and the court majority. Five circuits have read the law to limit the protection to officers performing customs or excise functions.

Justice Stephen G. Breyer agreed with Kennedy's dissent and added his own to reinforce his view of the importance of context.

"When I call out to my wife, 'There isn't any butter,' I do not mean, 'There isn't any butter in town,' " Breyer wrote. "The context makes clear to her that I am talking about the contents of our refrigerator.

"That is to say, it is context, not a dictionary, that sets the boundaries of time, place and circumstances within which words such as 'any' will apply," Breyer wrote.

The court's decision extends the law to "tens of thousands of officers performing unrelated tasks" to those covered by the statute, Breyer said.



Supreme Court Refuses to Hear Enron Case
Lawyer Blog News | 2008/01/22 17:43
The Supreme Court dealt a blow Tuesday to Enron investors who sued major investment banks to recover money lost when the Texas energy giant collapsed amid a massive accounting fraud. By refusing to review the investors' lawsuit, the court took away what may have been their only hope of keeping the case alive. Enron stockholders may seek to revive their case in the lower federal courts, though the 5th U.S. Circuit Court of Appeals in New Orleans has ruled against them once before.

Enron's demise wiped out thousands of jobs, more than $60 billion in market value and more than $2 billion in pension plans.

Tuesday's turndown for the Enron investors came without comment in a routine Supreme Court list of cases the justices had decided not to hear.

The chances that Enron shareholders can recover some money dimmed a week ago with the Supreme Court's decision against investors in a separate suit. It alleged that two suppliers doing business with a cable TV company engaged in securities fraud.

That suit was politically sensitive for the Bush administration because of its potential to affect the Enron case. The administration sided with the business community against investors, despite the recommendation of the Securities and Exchange Commission to side with the investors. It was left to attorneys general from 30 states to support shareholders in the case against the cable TV suppliers.

The justices ruled that the investors in Charter Communications Inc. did not have the right to sue because they did not rely on the deceptive acts of the suppliers.

The same principle could apply to the Enron case, where investors relied on Enron's glowing description of its business, but were arguably unaware of any deceptive conduct by the investment banks.

Lawyers for Enron investors say the circumstances in the two cases are not comparable.

In the Enron suit, stockholders are accusing Wall Street investment banks of colluding with the energy company to hide its losses.

To date, Enron plaintiffs have settled for $7.3 billion from several financial institutions including JPMorgan Chase & Co., Citigroup and Canadian Imperial Bank of Commerce.

Enron stockholders are seeking more than $30 billion from Merrill Lynch & Co., Credit Suisse First Boston and Barclays Bank PLC.

The investment banks, say Enron investors, schemed with the energy company, scheming with Enron by entering into partnerships and transactions that enabled the energy company to take liabilities off its books, recording revenue from the deals when it was actually incurring debt.

Now that the Supreme Court has rejected the case, "I think that the chances of succeeding on a scheme liability theory are nearly zero; the resolution of this Enron case was made clear by the decision" last week against investors in the cable TV suppliers suit, said attorney Greg Markel, who represents corporate clients in securities fraud lawsuits.

Last March, the appeals court in New Orleans reversed a decision by U.S. District Judge Melinda Harmon in Houston, who had said Enron shareholders could sue as a class.

The issue of certifying a class is a critical one. Once the courts allow huge numbers of investors to pursue a securities fraud lawsuit, the defendants almost always settle rather than exposing their corporations to potentially catastrophic liability.

The appeals court decision in the Enron case meant that shareholders and investors could not pool their resources to sue as a group. Lawyers for Enron investors estimate the class size at over 1 million shareholders.

Enron Corp., once the nation's seventh-largest company, crumbled into bankruptcy in December 2001. The failure became a symbol of the corporate scandals that rocked Wall Street early this decade.



Supreme Court will hear employee harassment case
Lawyer Blog News | 2008/01/20 16:52
A longtime local government worker is fired after she cooperates with an investigation of sexual harassment allegations against a high-ranking official. The Supreme Court said Friday it will decide whether federal civil rights law protects employees from such retaliation.

The justices agreed to review claims by Vicky Crawford, who was fired in 2003 after more than 30 years as an employee of the school system for Nashville, Tenn., and Davidson County.

Months earlier, investigators interviewed Crawford about the school district's director of employee relations, Gene Hughes, and Crawford told them Hughes had sexually harassed her and other employees.

The investigation found Hughes had acted inappropriately, but did not recommend that he been disciplined.

Instead, Crawford learned she faced charges of irregularities in her job as payroll coordinator, and she was fired. Crawford then filed a federal lawsuit claiming she had been dismissed in retaliation for alleging harassment by Hughes.

A U.S. district judge and a three-judge panel of the 6th U.S. Circuit Court of Appeals dismissed the suit. The courts said the anti-retaliation provision of Title VII of the 1964 Civil Rights Act did not apply to Crawford because she didn't raise harassment claims on her own but merely responded to investigators' questions.

The Bush administration is supporting Crawford. "Internal investigations are an integral aspect of Title VII and there is no reason to leave cooperating witnesses unprotected," said Solicitor General Paul Clement.

The justices also will review a separate case involving age-discrimination claims filed by former workers at the Knolls Atomic Power Lab.



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