Aug 16 2017

A Bad Idea Sometimes Comes From a Good Place: Illinois Erases Statute of Limitations on Child Abuse Cases

Illinois Governor Bruce Rauner signed legislation that completely removes the statute of limitation for crimes involving sexual abuse of minors. Sex abuse victims are calling the new law a great step forward. They say pursuing justice criminally will help with the closure process.Survivors of abuse say eliminating the statutes of limitations will give them the time they need to come forward and report a crime to police.

Who could possibly be against this, right? Uhm, me . . . and hopefully every person who values the Constitution. Before you start calling me a supporter of pedophiles, hear me out. Our Constitution requires those accused of crimes to (a) be presumed innocent; (b) receive due process of law and (c) obtain a speedy trial. Why? Because we recognize that the criminal justice system is already heavily stacked in favor of the prosecution and the Founding Fathers wanted to develop a system of justice that protected the innocent, not one which merely convicted the guilty. And its worked pretty well. Conviction rates across the country are well above 90% with many states at or above 97%. So its not like the guilty are getting away with crimes. So the last thing we should be doing is reducing the few protections the system has in place for the accused. One would think the recent rash of exonerations, including of some men who were on Death Row for crimes they didn’t commit, would be enough for the populace and the politicians to cherish those protections.

The scales are there for a reason

“But the children!!What about the children!!” folks will scream. Yes, child sexual abuse is an horrific crime with lifelong implications and consequences for victims. False accusations of child abuse also have far lasting implications and consequences. Statutes of limitations were developed by the Ancient Greeks who imposed a five year statute of limitations on all crimes except murder. In New York, that five year rule still applies to almost all felonies and there is still no statute of limitations on murder. Statutes of limitations strike a balance between the right of an accused to have their day in court and seek justice and the right of the accused – who remember is presumed innocent – to be able to properly defend themselves. Memories fade, witnesses disappear, crucial evidence will likely be long gone if someone can be prosecuted 50 years after a crime supposedly occurred. And believe me, people accused of this crime already walk into the courtroom with tremendous disadvantages just by the nature of the charges.

Advocates for child sex abuse victims point to the fact that children often suppress these incidents for years. In a story about the new law posted by the local ABC News affiliate, David Rudofski said he was sexually abused by Illinois priest Father James Burnett when Rudofski was just 8 years old. But, it wasn’t until he was in his mid-30’s when Rudofski reported the abuse. He’s quoted as saying: “”It takes years – sometimes decades – to have the courage to come up and talk about or even realize what happened.” No doubt. But Illinois law already had one of the longest statutes of limitations for these crimes on the books: It called for cases to be reported and prosecuted within 20 years of the victim turning 18. That time period seems to strike a sufficient balance between the two important and competing interests here.

Children can be manipulated into making false allegations of child abuse, particularly in hotly contested custody cases. Is that common? No. Studies show that the prevalence of false allegations by children is around five to ten percent of cases. While that is a low number, the statistics also show that in Illinois there was not a large number of cases that went un-prosecuted due to the statute of limitations. I saw no such statistical evidence in legislative history for the new law. The drive for the new law seems to come in part by the case of Dennis Hastert, the former Illinois Congressman who served as Speaker of the House in between Newt Gingrich and Nancy Pelosi. It was revealed that for years, while Hastert was a high school football coach in the 1970s, he abused and molested numerous of his students and players. Some of those cases fell beyond the statute of limitations though Hastert settled most of them in civil court and ended up doing 15 months in a Federal penitentiary for trying to buy off another victim.

We use the scales to symbolize our system of justice for a reason. Laws that fully eliminate the statute of limitations, or extend them to points where they no longer serve their function, sound good and provide a nice platform from which politicians can make their “Tough on Crime” speeches. But they also erode long-standing protections put into place to make sure we do not wrongfully convict an innocent person. We should be very careful to tip the scales.

Jul 31 2017

Fed Ct. Rules First Amendment Stops Public Official From Blocking Social Media Followers

A Virginia Federal Court has ruled that a public official’s blocking of a Twitter follower of the public official’s Facebook was a violation of the follower’s First Amendment rights. The caseDavidson v. Loudon County Board of Supervisors, involved the chair of the Loudoun County Board of Supervisors, Phyllis J. Randall. In her capacity as a government official, Randall runs a Facebook page to keep in touch with her constituents. In one post to the page, Randall wrote, “I really want to hear from ANY Loudoun citizen on ANY issues, request, criticism, compliment, or just your thoughts.” She explicitly encouraged Loudoun residents to reach out to her through her “county Facebook page.” Well maybe not “ANY”. It seems one Brian Davidson, posted a comment to a post on her FB page alleging corruption on the part of Loudoun County’s School Board. Randall, who said she “had no idea” whether Davidson’s allegations were true, deleted the entire post and blocked him. The next morning, she decided to unblock him. During those intervening 12 hours, Davidson could view or share content on Randall’s page but couldn’t comment on the posts or send private messages.

That pesky First Amendment strikes again!

Well, he sued, alleging a violation of his free speech rights. As U.S. District Judge James C. Cacheris explained in his decision, Randall essentially conceded in court that she had blocked Davidson “because she was offended by his criticism of her colleagues in the County government.” In other words, she “engaged in viewpoint discrimination,” which is generally prohibited under the First Amendment. The Court held as follows:

Defendant’s offense at Plaintiff’s views was therefore an illegitimate basis for her actions—particularly given that Plaintiff earned Defendant’s ire by criticizing the County government. Indeed, the suppression of critical commentary regarding elected officials is the quintessential form of viewpoint discrimination against which the First Amendment guards. By prohibiting Plaintiff from participating in her online forum because she took offense at his claim that her colleagues in the County government had acted unethically, Defendant committed a cardinal sin under the First Amendment. . . .The Court cannot treat a First Amendment violation in this vital, developing forum differently than it would elsewhere simply because technology has made it easier to find alternative channels through which to disseminate one’s message

Of course, the decision may have big implications outside ole Loudon County (population 375,000). The Knight First Amendment Institute at Columbia University has sued President Trump on behalf of blocked users and followers of his famed Twitter account. The decision in the Davidson case is likely to be a harbinger of the result in the Knight case against President Trump. A public official using social media on their official page or feed, cannot discriminate against particular users on the basis of the users’content. Vulgar and threatening language can likely withstand a challenge but that leaves wide latitude for what you can post and say on an official’s website. The court noted that the site in question had no policy in effect as to what could be posted and that it unquestionably constituted a public forum as Ms. Randall used it for governance by asking persons on her private page to follow her on her official page and post questions and comments. The court noted the distinction between her official page and her campaign page, “Friends of Phyllis Randall,” in finding that by banning Davidson, Randall was engaging in State action.

The case shows how social media pages have become the new public square. Public officials at the local and national level need to take note of that and understand that their social media posts and their conduct of their social media pages amount to State action and that therefore these pages must be operated in accordance with the Constitution.

Jul 24 2017

SCOTUS Ruling on “Slants” Trademark Leads to More Offensive Filings

Back on June 19, a unanimous Supreme Court struck down a law prohibiting the registering of “disparaging” trademarks, in a case dealing with an Asian-American band called “The Slants.” The ruling also ended the appeal filed by the Washington Redskins which had been denied a trademark for their name under the same provision. The Court struck down the law as violating the free speech rights of the applicants. It also ruled that by providing the registration for the trademark, the US government was not condoning or sponsoring the mark.

Coming to a store near you?

The decision has opened the floodgates for other filers to seek trademark protection for racially offensive trademarks. For example, on the very day the Slants ruling came out Marlon Andrews of Washington DC has field for a trademark to sell T-Shirts and other articles of clothing with the phrase “Nigger Please” emblazoned on them. Other applications that would have been previously denied under the regulation include an application for clothing with the Nazi swastika on them. Reuters reports that nine applications for use of “Nigga” have been filed mostly by a company called “Snowflake Enterprises” which plans on using the word on alcoholic and non-alcoholic beverages as well as on all sorts of clothing. Trademarks of course, often lead to litigation, so it won’t be long until we see “Nigger Please, Inc. v. Nigga Please, LTD” or something of the sort before that Trademark Appeals Board.

The one good thing to come out of this ruling is that it may perhaps educate folks that hate speech is still protected speech. Too often I hear TV pundits talking about the right to restrict speech on college campuses because the banned speech is “hate speech.” Well with the Supreme Court of the United States saying that the USPTO must allow companies to trademark racial slurs on First Amendment grounds, clearly then an actual speaker offering racist lectures on college campuses is also protected under the First Amendment provided he/she is not directly inciting violence (a valid First Amendment exception). Hopefully the marketplace will straighten this out and these products won’t last too long on the shelves.

Jul 19 2017

Golf is a Lot Like Trying Cases

Out on Long Island, where I have a law office and where I live, lawyering and golfing go hand in hand. Its expected that if y practice law out here, you golf. Personally, I hate golf and only do so rarely and only at Golf Outings. I’m terrible at it since I only took the game up in my 40s and have not the time (or desire) to practice as much as I would need to in order to get any good at it. The rare times I do go out on the course with clients, I make them agree beforehand that they will not equate my golf skills with my lawyering ability. But in playing the game I realize that there are lots of similarities between golfing and trying cases. Here’s my top 5:

#5. What you wear matters Golfers can get away with wearing stuff you can’t wear anywhere else. Garish colors, odd combinations, etc. But being cool and comfortable is top priority. For trial lawyers, dress is also important because jurors (and judges) will sometimes form impressions of you from their initial view of your appearance. So while you don;t want to go too far and look like a peacock, you want to look “put together.” Sometimes dressing down or way up may be right to send a message to the jurors about your position and case, but the general target you are going for is neutral – you want jurors to think you’re well dressed, neat and in control.

#4. Where you do it matters Golfers are always trading stories about beautiful courses they have played and trial lawyers are no different. We love a nice courtroom that sends a message of gravitas and dignity to jurors and witnesses. But more importantly, you have to know your jurisdiction and audience. What are the judges like? What types of folks make up the jury pool? What are the issues going on in the county or municipality? And just like playing the same course over and over again helps your game, being a regular in a courtroom is a tremendous advantage. Unless of course you’re obnoxious.

#3. Remember its a long game You’re going to have good shots, good holes, and your share of bad shots and horrible rounds. Same with a trial. Chances are if all the evidence was completely in someone’s favor, you wouldn’t be going to trial. Trials generally occur when both sides see a path to winning based on the evidence or the law. So realize that you’re going to take your hits. What matters is that you are prepared for it and that you have prepared the jury for it in jury selection.

#2. Practice, Practice, Practice You cannot get good at golf without lots of practice. It takes very little to make a golf shot go very wrong. You need to hit the driving range, get lessons, and play round after round of horrible golf to get to the point where the awkward cumbersome motion that is a golf swing looks and feels natural. So it is with trials. Preparation and practice are the keys to success as a litigator. I’ve been doing it for over 30 years, and I still practice my opening and summation out loud several times before the start of every trial to see how it sounds, to feel if i am making a logical connection with the evidence and yes, to make it look like I am speaking off the top of my head when in fact, every word – usually every pause – is thought out and has a reason for its placement and inclusion.

#1. Getting good requires public humiliation Unfortunately, there is no way to learn golf or trial law without failing in public. Neither activity are for folks who are shy about “putting it out there.” That’s one of my favorite things about trial law. The competitiveness and the isolation of it. When you flop, its on you and no one else. There’s no masking your weaknesses and flaws. Your skills are on display and there ain’t no place to hide. Each time you do it, you get more comfortable until you develop your own sense of style as a trial lawyer. just like a golfer needs know what his weaknesses are and adjust his game accordingly, so too must the trial lawyer know what his Achilles’ Heel is and deal with it. For young lawyers out there, I wish I could tell you that there was a better way to learn how to try a case but there isn’t. You can reduce the risk of this by reading my Top Ten Tips For Young Lawyers but you are going to get yelled at by some judge, you are going to go home one night feeling horribly about all the questions you forgot to ask or for freezing like a deer in headlights before the jury, but its all part of the process.

Fore!

Follow me on Twitter @oscarmichelen

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