Nov 30 2016

Colorado Theater Shooting Victims Stuck with $700,000 in Defendants’ Legal Fees

In 2012, James Holmes killed twelve people and injured seventy others in a ten-minute rampage at a screening of “The Dark Knight Rises.” Forty-one victims filed lawsuits some in Federal court and others in State court. According to the state lawsuit, the theater companies failed to hire sufficient security personnel in light of a previous shooting and other violence in the shopping mall where the theater is located. It also cited a lack of surveillance cameras around the property, a faulty emergency exit alarm that failed to go off when the gunman launched his attack through the cinema’s rear door, and the failure of security personnel to intervene once the shooting started. Their claims against the movie theater relied heavily on a warning issued by the Department of Homeland Security just months before the massacre advising theater chains of the possibility of a mass shooting and suggesting they take precautions.

But just before the state trial was about to begin, Arapahoe County District Judge Phillip Douglass,the Colorado judge overseeing the trial, ruled the Homeland Security document inadmissible saying “it might mislead and confuse the jury.” The movie theater’s main argument was that it did not have the legal duty to foresee the mass murderous assault, nor did it have the legal duty to prevent it. So the court’s ruling opened a huge hole in the victims’ case as without a direct warning, the previous incidents at the mall were not enough to force the theater to screen patrons as they came in or to guard against a mass shooter more vigorously. In May of this year, the State Court jury ruled in favor of the defendants and dismissed the lawsuit. At the time, some plaintiffs grumbled that their lawyer, NY mass-tort specialist Marc Bern, dropped the ball. Bern and his firm made millions off of asbestos and 9-11 related claims. He represented twenty seven of the State court plaintiffs. According to the LA Times, his clients complained that he paid one expert $22,000 to testify while the theater paid five experts $500,000 to testify in a case that came down to a battle of experts. One attorney in the State court case who had taken a small settlement to end the matter told the LA Times “A blind guy in a dark alley could have seen it coming” (referring to the State jury verdict).

Colorado Killer James Holmes

Colorado Killer James Holmes

To make matter worse, Colorado law requires the losing party to pay the winning party’s legal fees. The State court just approved the theater’s $699,000 bill of costs and judgment was entered against the remaining State court plaintiffs in that amount. While it is not likely that the defendant will pursue getting those costs, each plaintiff is individually liable for the whole $699,000 and a judgment of that size will of course affect your credit rating and ability to manage your financial affairs.

The plaintiffs in the Federal case did not fare any better. After an eight hour settlement conference produced a $150,000 settlement offer to be split among forty one plaintiffs. While it was a paltry sum, the Federal judge presiding over the case had warned them that there was pending motion to dismiss in light of the State court verdict and that he was likely to rule in the theater’s favor. Once again, he warned them, Colorado law would apply and they would be liable for attorney’s fees and costs if they lost. All but one plaintiff decided to take the settlement but the deal was off the table unless it was unanimous. The final victim could not be swayed: Her child was killed in the shooting, she was left paralyzed and the baby she was carrying had been lost. The other plaintiffs noted that in addition to the money, the theater chain would make improvements in their security measures to protect its patrons. Still, she decided to reject the settlement offer. The next day, the Federal judge dismissed the case as well. The theater has not yet submitted its Federal bill of costs.

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Nov 29 2016

South Carolina Church Shooting Case Raises Question of Whether a Defendant Should Be Allowed to Represent Himself in a Death Penalty Case?

Against the advice of a federal judge, accused South Carolina church shooter Dylann Storm Roof will represent himself in a federal death penalty trial that began Monday. Roof filed a motion under seal Sunday to represent himself having also been found competent to stand trial. Federal District Court Judge Richard Gergel granted the motion moments before jury selection began. The case stems from the June 2015 shooting deaths of nine black worshipers at Emanuel African Methodist Episcopal Church in Charleston, South Carolina. Due to Root’s affirmed white supremacist views and his brandishing of the Confederate flag in many of the images he posted on social media, Governor Nikki Haley agreed to take down the Confederate flag that had until then always flown above the State Capitol grounds.

Once he was found competent to stand trial, Roof had to go through a brief questioning by the court to assess if he was sufficiently competent to act as his own counsel. Most defendants who make this decision usually make a stop at the prison law library first to bone up on a few terms and issues that they may be questioned about. Newspaper accounts on the case say the inquiry lasted less than ten minutes. But the Supreme Court in the landmark decision of Faretta v. California held that a defendant has an absolute Constitutional right to represent himself in a criminal proceeding. And then in Godinez v. Moran the Supreme Court clarified that the question is if the defendant is competent to waive his right to counsel not whether the defendant is competent enough to defend himself. And if you look at the Moran case you would see how low the bar of that competency is. Justice Harry Blackmun pointed that out in his dissent in the Moran decision (he also dissented from the Faretta case:

Just a few months after he attempted to commit suicide, Moran essentially volunteered himself for execution: He sought to waive the right to counsel, to plead guilty to capital murder, and to prevent the presentation of any mitigating evidence on his behalf. The psychiatrists’ reports supplied one explanation for Moran’s self-destructive behavior: his deep depression. And Moran’s own testimony suggested another: the fact that he was being administered simultaneously four different prescription medications. To try, convict, and punish one so helpless to defend himself contravenes fundamental principles of fairness and impugns the integrity of our criminal justice system.

Fool for a client?

Fool for a client?

Here, Roof faces a slew of forensic evidence to be brought against him and is facing the death penalty for one of the most notorious crimes in recent memory. The judge cannot help him in making his decision, only instruct him as to certain rights which only a defendant can waive (right to trial, right to testify, for example). Roof also was given David Bruck (who had originally been assigned to represent him) as standby counsel to sit at counsel table with him through the process to provide advice. Bruck is a highly-experienced well-regarded death penalty practitioner who had to move aside to the second chair at counsel table to allow the 23 year old, 9th grade dropout to slide into first chair and act as sole trial counsel.

The right of a party to a legal action to represent his or her own cause has long been recognized in the United States, and even predates the ratification of the Constitution. The Supreme Court noted that “[i]n the federal courts, the right of self-representation has been protected by statute since the beginnings of our Nation. Section 35 of the Judiciary Act of 1789, 1 Stat. 73, 92, enacted by the First Congress and signed by President Washington one day before the Sixth Amendment was proposed, provided that ‘in all the courts of the United States, the parties may plead and manage their own causes personally or by the assistance of counsel.'” Why was this so important to the Founding Fathers? The framers of the Declaration of Independence and the Constitution highly valued the individual’s “inalienable rights” and wanted to assure that those rights were essentially supreme to all statutes and laws that may be enacted afterwards. Thomas Jefferson had distinguished between the rights of what he called “personal competency”(such as freedom of opinion and right to self-determination) and property rights; while the former were inviolable, the latter could be modified as times and circumstances required. They were also mindful that most of them and their class were well-educated and perhaps more capable than any lawyer the government might force them to use and whom they may not trust to have their best interests at heart. They were worried that in political trials, they could be stifled and kept from testifying or pleading a particular cause. Those are all powerful reasons in the context of early 18th Century America, but most of them do not hold true today when applied to the average criminal defendant. Though it is important to note that it is in political or high-profile cases that you most regularly now see defendants who want to represent themselves in an effort to “make a statement.”

And I think that may be what’s happening here. Here in NY, a similar issue arose when Colin Ferguson decide to represent himself in the notorious shooting on the Long Island Railroad in 1993. Even though William Kunstler and Ron Kuby – two highly regarded high-profile criminal defense attorneys – had agreed to represent him for free, once they announced that they were mounting an insanity defense, Ferguson fired them and represented himself. Ferguson wanted to present a defense that he was manipulated by a third party who had obtained control of his brain. He wanted to prove that this control was the reason for all of his recent paranoia and delusions. Of course he was quickly convicted. Here, however, Roof’s position may be closer to what the Founding Fathers intended with the right to self-representation. While Bruck was Roof’s lawyer, he filed a motion for a psychiatric examination of his client as he prepared to mount a likely insanity/emotional disturbance defense. The psych exam came out that Roof was competent to stand trial and then Roof filed his motion to represent himself. Roof may not have wanted to plead a psych defense because he may very well see himself as a martyr for a cause and didn’t want his sacrifice for his beliefs to go down as those of a madman but rather as those of a committed white supremacist. While that cause is repugnant to the vast majority of Americans, that right is his and falls into the category of Jefferson’s “personal competency” rights.

While I believe the right to self-representation should remain intact, three safeguards can be put into place to better protect the accused. First, I think courts need to strike a balance and allow self-represented defendants to have attorneys handle certain cross-examinations, particularly of expert witnesses or police forensic specialists. It need not be all or nothing. A defendant should be able to choose to represent himself and yet get more than mere guidance when it comes to these types of witnesses. If the defendant so chooses, he should be able to have an experienced defense lawyer cross-examine these highly skilled witnesses who testify about complicated, scientific matters. Secondly, the court should do more than just a cursory examination of whether a defendant is competent enough to waive his right to counsel. The inquiry should try to assess if the defendant has at least a rudimentary knowledge of the workings of the criminal justice system. They do that in NY – asking for example if the defendant knows what a prosecutor does and what a judge does – but in most states these issues are not addressed. Finally, the court should directly address the defendant and advise him of the various rights he has – especially the right to remain silent, the presumption of innocence, the right to confront witnesses and the right to use court process to secure documents and witnesses to court. These steps will still honor the Founders’ belief in self-determination while not making a total mockery of the judicial system and while also doing more to ensure that the accused gets a fair trial.

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Nov 18 2016

President-Elect Settles Trump U Fraud Lawsuits for $25 Million

The man who said settling is for losers just settled – big league, settled. Faced with the prospect that the Mexican-American Judge Gonzalo Curiel he labeled as biased would not postpone discovery in the case, leading to the embarrassing position of having to testify about pervasive fraud while running the country, Trump agreed to pay a whopping $25 Million to resolve three lawsuits brought by ex-students.

Many times businesses and high-profile target s settle lawsuits by making a nuisance payment to get the case out of the limelight and not tie them up in embarrassing or frivolous litigation. This is not that. NY State Attorney General Eric Schneiderman had sued for a total of $40 Million, so paying $25 Million against that is hardly nuisance value. The BBC reports that Attorney General Eric Schneiderman said in a statement:

“Today’s $25 million settlement agreement is a stunning reversal by Donald Trump and a major victory for the over 6,000 victims of his fraudulent university.
The victims of Trump University have waited years for today’s result and I am pleased that their patience – and persistence – will be rewarded by this $25 million settlement.”

Judge Gonzalo Curiel

Judge Gonzalo Curiel

The students had paid a whopping $35,000 to Trump University for what they believed were hand-picked secrets from experts Trump himself. The closest students actually ever got to the real estate mogul was having their photo taken beside a cardboard cutout of him, Mr Schneiderman has alleged. The NY AG also said that Mr Trump personally pocketed about $5m in the “scheme.” Trump also supposedly never had any dealing with the instructors who were billed as personal proteges of the next US President.

The Trump settlement includes no admission of wrongdoing as most out-of-court settlements do. But Schneiderman made no bones about making it clear he believed Trump U to be no more than a glorified snake oil scam. “More than 5,000 people across the country who paid Donald Trump $40 million to teach them his hard-sell tactics got a hard lesson in bait-and-switch,” Schneiderman said in a statement at the time. “Mr. Trump used his celebrity status and personally appeared in commercials making false promises to convince people to spend tens of thousands of dollars they couldn’t afford for lessons they never got.”

Nov 03 2016

Think Before You Shoot! Ballot Selfies May Be Illegal in Your State

As someone who is not quite a Baby Boomer and definitely not a Millennial I’m ambivalent about selfies. I get why they’re popular but sometimes I think folks are just a little too obsessed with documenting every meal, sunny day, rainy day etc in their lives by taking a picture of themselves “in the moment.” And of course, what could be more reflective of our society than the need to prove you voted by taking a selfie. I get it, especially in this most-divisive of elections. There can hardly be a more pure expression of your First Amendment right to free speech than to say “I voted”

Vote Button

Vote Button

But 20 states (including New York) have laws that directly prohibit taking a picture of a marked ballot and some even make it illegal to take any picture in a polling place.Some of those states do allow pictures of absentee or mailed-in ballots. The ACLU recently lost a challenge to a California law that banned pictures of marked ballots. They decided not to appeal right now as the election is too soon to have a court rule in time so for now the ban stands (though it is rarely enforced). The prohibition on taking picture of ballots or of marked ballots started almost as soon as photography itself was invented. Most of these laws are over 120 years old. The reason they were put in place in the first place was to prevent voter intimidation. Local political leaders and goons could force their underlings or local residents to prove who they voted for or that they voted at all by requiring proof in the form of a photograph of their marked ballot or at the polling place. So laws were passed to render such conduct illegal and preserve the privacy of the ballot box. Opponents say those days are long gone and that in today’s digital world the selfie is too valuable a form of free expression to be denied. As in California, most states that have bans don’t even enforce them. The Associated Press has compiled information on all 50 states on this issue which I have compiled in a chart:

STATELEGAL, ILLEGAL OR
MIXED
COMMENT
ALABAMAILLEGAL
ALASKAILLEGAL
ARIZONAMIXEDBars photography within 75 feet of polling places. But the Legislature changed the law that barred showing photos of completed ballots in 2015 to allow posting of early ballots on social media.
ARKANSASLEGALNothing in state law prohibits taking photos while in a polling place as long as it’s not disruptive or being used for electioneering purposes,
CALIFORNIAILLEGALBill pending to make it legal
COLORADOILLEGALAttempt to repeal it in 2016 failed
CONNECTICUTLEGAL
DELAWAREMIXEDPolicy against cellphones in voting booths
FLORIDAILLEGAL
GEORGIAILLEGAL
HAWAIILEGALA law passed this year allows voters to share a digital image of one’s own marked ballot.
IDAHOLEGAL
ILLINOISILLEGAL
INDIANALEGALA federal judge last year barred the state from enforcing a new law prohibiting ballot selfies.
IOWAILLEGALPhotos of absentee ballots are OK.
KANSASILLEGAL
KENTUCKYLEGALSecretary of State spokesman Bradford Queen says state law does not allow people to record the likeness of a voter, but the law does not say whether voters can record their own likeness. Therefore, the secretary of state’s office routinely tells county clerks the law does not prohibit ballot selfies.
LOUISIANALEGAL
MAINELEGAL
MARYLANDILLEGALPhotos of mailed ballots are OK.
MASSACHUSETTSILLEGAL
MICHIGANLEGALA federal judge on Monday blocked enforcement of a ban on ballot selfies, saying it violates free speech. Lawyers for Secretary of State Ruth Johnson predicted "chaos" at polling places and asked the judge to consider freezing her order while they pursue an appeal in a higher court.
MINNESOTALEGAL
MISSISSIPPIILLEGAL
MISSOURIMIXEDLaw prohibits voters from allowing others to see their ballots if the intent is to show how they voted.
MONTANALEGAL
NEBRASKALEGAL
NEVADAILLEGAL
NEW HAMPSHIRELEGALFederal Court last month ruled it was free speech
NEW JERSEYILLEGAL
NEW MEXICOILLEGAL
NEW YORKILLEGAL
NORTH CAROLINAILLEGAL
NORTH DAKOTALEGAL
OHIOILLEGAL
OKLAHOMAMIXEDThere is a law against it but the law states no penalty for violating it
OREGONLEGAL
PENNSYLVANIAMIXEDLaw prohibits someone from revealing their ballot "letting it be known how" they’re "about to vote." But officials recently released guidance on electronic items in polling places that noted the recent court cases that "found a First Amendment right to take ’ballot selfies.’"
RHODE ISLANDLEGAL
SOUTH CAROLINAILLEGAL
SOUTH DAKOTAILLEGAL
TENNESSEEILLEGALPhotos of mail-in ballots OK
TEXASILLEGALPhotos of mail-in ballots is legal
UTAHLEGAL
VERMONTLEGAL
VIRGINIALEGAL
WASHINGTONLEGAL
WEST VIRGINIAILLEGALMail-in pictures OK
WISCONSINILLEGAL
WYOMINGLEGAL

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