6/18/2010
Peggy Noonan Compares Obama to Carter, Calls Him "Snakebit"
In today's Wall Street Journal, Peggy Noonan gives a new perspective on President Obama, "A Snakebit President" -- it's worth the read.
6/16/2010
6/10/2010
Abby Sunderland, 16, Lost at Sea While Sailing Around the World Solo - What's the Legal Implication Here?
Teen sailor Abby Sunderland, 16, isn't communicating with anyone -- but her sailboat shouldn't be completely underwater according to her brother, since an alarm for that event hasn't sounded. Sixteen years old, Abby is determined to circumnavigate the globe alone in Wild Eyes, her sailboat. (For details on her story, check out the details at SailWorld.com, which includes photos of the sailboat with Abby at the helm.)
Abby turned on emergency beacons before 6AM this morning
However, no one has heard from Abby since early this morning, when Abby was somewhere in the Indian Ocean, closest land being Reunion Island in Madagascar. She turned on a couple of beacons around dawn.
Rescue operations are underway. Boats are headed toward the spot that everyone thinks Abby will be, but they'll need around 40 hours to get there, and seaplanes are also (hopefully) in route.
Family Updating Her Blog With Rescue News
It's a sailboat that the family reports on Abby's Blog today was built with 5 air-tight bulkheads (which will keep the boat afloat even if there has been major damage). Wild Eyes, moreover, was built to right itself if it were tipped over.
And it may well have tipped over, since Abby already reported that the sails have dunked into the ocean waters twice during rough weather that included 25 - 30 foot high waves.
The family is updating folk with posts on Abby's Blog - where Abby was posting regularly until this event. They are asking for prayers and support.
And I will pray for Abby and her family -- but as a lawyer, especially one that represented children for several years, I gotta wonder.
Are the parents legally responsible here in the event that Abby has been lost at sea?
One does have to ask: what the heck is a 16 year old teenage girl doing out there, doing this? No matter her skill level, under the law she is a child.
Legally, these parents are responsible for whatever happens to their minor child (at least they would be in Texas). If something happens to Abby, is there criminal liability?
Danger is Danger
Having represented children in the local's Children's Court in abuse and neglect cases - as their attorney ad litem, where Child Protective Services had become involved in the child's situation - my perception of this event may be different than some others.
Most of the kids that came thru Children's Court were from socioeconomic lifestyles that are at the opposite end of the continuum from the way of life that Abby Sutherland's sailing family enjoys.
However, danger is danger. Putting your child in a life-threatening, dangerous spot is not acceptable: if you do it intentionally, it's abuse; if you do it unintentionally, it's neglect.
The opinion of the Backseat Lawyer is this: no 16 year old teenager should be alone on a sailboat in the middle of the Indian Ocean no matter how cool they think it is, or no matter how lucrative that adventure might be.
For updates: Abby's Blog
Abby turned on emergency beacons before 6AM this morning
However, no one has heard from Abby since early this morning, when Abby was somewhere in the Indian Ocean, closest land being Reunion Island in Madagascar. She turned on a couple of beacons around dawn.
Rescue operations are underway. Boats are headed toward the spot that everyone thinks Abby will be, but they'll need around 40 hours to get there, and seaplanes are also (hopefully) in route.
Family Updating Her Blog With Rescue News
It's a sailboat that the family reports on Abby's Blog today was built with 5 air-tight bulkheads (which will keep the boat afloat even if there has been major damage). Wild Eyes, moreover, was built to right itself if it were tipped over.
And it may well have tipped over, since Abby already reported that the sails have dunked into the ocean waters twice during rough weather that included 25 - 30 foot high waves.
The family is updating folk with posts on Abby's Blog - where Abby was posting regularly until this event. They are asking for prayers and support.
And I will pray for Abby and her family -- but as a lawyer, especially one that represented children for several years, I gotta wonder.
Are the parents legally responsible here in the event that Abby has been lost at sea?
One does have to ask: what the heck is a 16 year old teenage girl doing out there, doing this? No matter her skill level, under the law she is a child.
Legally, these parents are responsible for whatever happens to their minor child (at least they would be in Texas). If something happens to Abby, is there criminal liability?
Danger is Danger
Having represented children in the local's Children's Court in abuse and neglect cases - as their attorney ad litem, where Child Protective Services had become involved in the child's situation - my perception of this event may be different than some others.
Most of the kids that came thru Children's Court were from socioeconomic lifestyles that are at the opposite end of the continuum from the way of life that Abby Sutherland's sailing family enjoys.
However, danger is danger. Putting your child in a life-threatening, dangerous spot is not acceptable: if you do it intentionally, it's abuse; if you do it unintentionally, it's neglect.
The opinion of the Backseat Lawyer is this: no 16 year old teenager should be alone on a sailboat in the middle of the Indian Ocean no matter how cool they think it is, or no matter how lucrative that adventure might be.
For updates: Abby's Blog
6/04/2010
Third Party Litigation Funding: Outside Investors Fund Litigation for a Piece of the Pie
Companies opening their checkbooks to pay for lawsuits? Yepper, looks like Third Party Litigation Funding has crossed over the pond. Attorneys in the United States appear to be following the trend set by litigators in Great Britain and Australia with Third-Party Litigation Funding. Seems there are a couple of companies already offering to finance American business lawsuits in exchange for a cut in the settlement proceeds or judicial award. (They also share the risk of loss if their side loses the case.)
It's reasonable to think that there will be other financiers entering the fray. After all, Great Britian has been testing the waters on this lawsuit funding investment option for several years now (albeit not without controversy).
Two Front Runners: Juridica Investments Ltd and Burford Capital
Juridica Investments Limited explains that its goal is to "make the legal system better for business claims." And its risk analysis is simple: Juridica has funding for business claims only -- it's not interested in personal injury matters, toxic torts, or the like. Ewww.
Burford Capital is a British company that is also ready to invest in business litigation, both in the United States and across the globe. Burford is traded on the London stock exchange as BUR, in case you'd like to check the company out. These aren't fly by night organizations by a long shot.
What are they looking for? In one interview with Juridica CEO Richard Fields, it was suggested that the British third party financier (TPF) was interesting in disputes ranging between $15 and $25 million involving business causes of action.
Can torts be far behind? Just think of the Toyota class action litigation, ponder the inevitable Oil Spill claims .... I'm thinking that the question of when Third Party Litigation Funding enters into the American Tort arena is sooner rather than later.
It's reasonable to think that there will be other financiers entering the fray. After all, Great Britian has been testing the waters on this lawsuit funding investment option for several years now (albeit not without controversy).
Two Front Runners: Juridica Investments Ltd and Burford Capital
Juridica Investments Limited explains that its goal is to "make the legal system better for business claims." And its risk analysis is simple: Juridica has funding for business claims only -- it's not interested in personal injury matters, toxic torts, or the like. Ewww.
Burford Capital is a British company that is also ready to invest in business litigation, both in the United States and across the globe. Burford is traded on the London stock exchange as BUR, in case you'd like to check the company out. These aren't fly by night organizations by a long shot.
What are they looking for? In one interview with Juridica CEO Richard Fields, it was suggested that the British third party financier (TPF) was interesting in disputes ranging between $15 and $25 million involving business causes of action.
Can torts be far behind? Just think of the Toyota class action litigation, ponder the inevitable Oil Spill claims .... I'm thinking that the question of when Third Party Litigation Funding enters into the American Tort arena is sooner rather than later.
5/25/2010
Texas Death Row's Hank Skinner and the US Supreme Court - What About Post Conviction DNA Testing Under 42 USC 1983?
On Monday, the U.S. Supreme Court granted the Petition for Writ of Certiorari filed by Texas Death Row Inmate Hank Skinner. It's a case to watch, because it means that the High Court will hear Skinner's argument he has a right to pursue a civil claim, not a criminal one, regarding his continuing assertion that he is innocent of the crime for which he has been sentenced to death.
Savvy Appellate Counsel file Civil Rights Claim
What Hank Skinner's savvy defense attorneys have done is file a civil rights claim which argues that his constitutional rights have been violated because the State of Texas didn't allow him to test evidence that was not tested at trial. He's not arguing this as part of his criminal case (writ of habeas corpus); he's arguing it as a civil matter.
The Fifth Circuit Court of Appeals already denied him, standing on past precedent and opining that any violations of his constitutional rights to (1) due process and (2) protection against cruel and unusual punishment based upon "the defendant district attorney’s refusal to allow him access to biological evidence" for purposes of forensic DNA testing need to be addressed in a petition for habeas corpus, not a petition for writ of certioriari.
What Hank Skinner wants is to test evidence for the absence of his DNA long after the jury trial is over
Skinner wants to test things that were left outside the courtroom during the jury trial that found him guilty and sentenced him to die. Professing his innocence of the crime, Hank Skinner wants the chance to take things in possession of the State of Texas, send them to a laboratory, and have the lab results show his DNA isn't on the stuff and therefore, he wasn't the killer. (If you want to read the background facts of the case, read them in Skinner's own words in a Q and A he answers at the Texas Death Penalty Blog.)
What About the Evidence?
It's obvious from his arguments that not all the evidence found at the scene of the crime was tested for Hank Skinner's DNA. And, of course it's true that DNA testing has exonerated many who have been wrongfully accused in this country (often, thanks to the efforts of The Innocence Project).
Interestingly, the same day that the Supreme Court granted writ on the Skinner case, a Wisconsin County Judge freed William Avery, 38, after DNA evidence showed that Mr. Avery did not kill a Milwaukee prostitute 12 years ago. He had served 5 years of a 40 year sentence.
It's also true that failure to properly test the state's evidence has led to the execution of innocent men. Texas executed Cameron Todd Willingham in 2004; today, there are few that doubt that Mr. Willingham was innocent of the arson deaths of his children, and that faulty testing of the evidence (and failure of the system) was to blame.
What Happened at the Trial?
However, what I'm wondering is what happened during the criminal trial? Was this a defense attorney strategy back then -- to not dig too deep in the State's evidence bag, for fear that it would only reveal more evidence that could be used against the defendant?
Why didn't the defense counsel at the trial do this testing? Was it error? Or was it a conscious decision made in what was considered the best interests of their client at the time?
And, here's why I'm asking - gamesmanship and the jury trial.
1. In future cases, what if criminal defense attorneys make strategic decisions NOT to go into all the things that came from the criminal investigation. Is the Skinner case going to mean that years down the road, a whole new series of appeals will begin, based upon a constitutional need to go back and check that stuff then? Assuming so, then how can we protect against gamesmanship while allowing for legitimate claims?
2. What does this do to the respect of the jury that is inherent in our system? Already, we have seen mediation and other forms of ADR (Alternative Dispute Resolution) cast aside the constitutionally recognized sanctity of a trial by a jury of our peers in civil actions. What impact will Skinner have upon the criminal jury system over the years, if the U.S. Supreme Court agrees with Mr. Skinner's arguments?
Savvy Appellate Counsel file Civil Rights Claim
What Hank Skinner's savvy defense attorneys have done is file a civil rights claim which argues that his constitutional rights have been violated because the State of Texas didn't allow him to test evidence that was not tested at trial. He's not arguing this as part of his criminal case (writ of habeas corpus); he's arguing it as a civil matter.
The Fifth Circuit Court of Appeals already denied him, standing on past precedent and opining that any violations of his constitutional rights to (1) due process and (2) protection against cruel and unusual punishment based upon "the defendant district attorney’s refusal to allow him access to biological evidence" for purposes of forensic DNA testing need to be addressed in a petition for habeas corpus, not a petition for writ of certioriari.
What Hank Skinner wants is to test evidence for the absence of his DNA long after the jury trial is over
Skinner wants to test things that were left outside the courtroom during the jury trial that found him guilty and sentenced him to die. Professing his innocence of the crime, Hank Skinner wants the chance to take things in possession of the State of Texas, send them to a laboratory, and have the lab results show his DNA isn't on the stuff and therefore, he wasn't the killer. (If you want to read the background facts of the case, read them in Skinner's own words in a Q and A he answers at the Texas Death Penalty Blog.)
What About the Evidence?
It's obvious from his arguments that not all the evidence found at the scene of the crime was tested for Hank Skinner's DNA. And, of course it's true that DNA testing has exonerated many who have been wrongfully accused in this country (often, thanks to the efforts of The Innocence Project).
Interestingly, the same day that the Supreme Court granted writ on the Skinner case, a Wisconsin County Judge freed William Avery, 38, after DNA evidence showed that Mr. Avery did not kill a Milwaukee prostitute 12 years ago. He had served 5 years of a 40 year sentence.
It's also true that failure to properly test the state's evidence has led to the execution of innocent men. Texas executed Cameron Todd Willingham in 2004; today, there are few that doubt that Mr. Willingham was innocent of the arson deaths of his children, and that faulty testing of the evidence (and failure of the system) was to blame.
What Happened at the Trial?
However, what I'm wondering is what happened during the criminal trial? Was this a defense attorney strategy back then -- to not dig too deep in the State's evidence bag, for fear that it would only reveal more evidence that could be used against the defendant?
Why didn't the defense counsel at the trial do this testing? Was it error? Or was it a conscious decision made in what was considered the best interests of their client at the time?
And, here's why I'm asking - gamesmanship and the jury trial.
1. In future cases, what if criminal defense attorneys make strategic decisions NOT to go into all the things that came from the criminal investigation. Is the Skinner case going to mean that years down the road, a whole new series of appeals will begin, based upon a constitutional need to go back and check that stuff then? Assuming so, then how can we protect against gamesmanship while allowing for legitimate claims?
2. What does this do to the respect of the jury that is inherent in our system? Already, we have seen mediation and other forms of ADR (Alternative Dispute Resolution) cast aside the constitutionally recognized sanctity of a trial by a jury of our peers in civil actions. What impact will Skinner have upon the criminal jury system over the years, if the U.S. Supreme Court agrees with Mr. Skinner's arguments?
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