Monday, December 29, 2008

Arkansas Court of Appeal Rules That "Mormons are Not Protestant"

The Arkansas Court of Appeals recently handed down an unusual ruling in which a man was held in contempt for involving his children in the LDS Church. Actually, it's not as dramatic as it sounds. When Joel and Lisa Rownak divorced in 2005 they agreed that their two children would be raised "in the Protestant faith." Since this agreement was entered as part of the divorce decree, it was enforceable by the court. Subsequent to their divorce, Joel Rownak converted to Mormonism and involved his two sons in his new faith, including baptizing one of the boys. Rownak made several free speech arguments, but the Arkansas court still found in contempt of the decree. The court relied heavily on the fact that Rownak himself had asked for the language to be placed in the divorce decree.The interesting part of this case, as it relates to the Mormon Church, is the court's discussion of whether the Church of Jesus Christ of Latter-day Saints was a Protestant church.

The court noted: Based upon testimony by appellant's wife, a statement by the president of LDS that was publicized on the church's website, and testimony by appellant, the court found the LDS church not to be a Protestant faith and found that appellant had promoted the LDS faith to his sons.Ark. App. CA08-193 p. 4. The question of whether Mormons are Protestants is mildly interesting, but it's fairly clear cut. The Arkansas court didn't seem to have much trouble coming to its conclusion. It would be more interesting if the divorce decree had required the children to be brought up "in the Christian faith." Then you would have a U.S. court attempting to determine an issue about which there is significant disagreement among various denominations. What sources would a court consult in determining whether Mormonism is part of Christianity? Would a court consult the LDS.org website, like the Arkansas court did on the Protestant issue? Or would the court instead rely on other religious authority outside of the LDS Church? And is even proper for a court to determine such controversial issues?As much as I'd like to see the outcome of such a case, it probably isn't the sort of issue that a court should resolve. In the Arkansas case there really wasn't much of a dispute over whether Mormonism was Protestantism. But it still raises some significant constitutional questions.

On this topic UCLA Law Professor Eugene Volokh opined: I think there are substantial limits on the enforceability of such contracts. The church property cases held that courts generally can't make theological decisions, such as which claimant's views are closer to orthodox (with a small "o") Presbyterianism; and I think the logic extends also to the interpretation of contracts, wills, and trusts that call for such decisions. Nor can courts avoid this constitutional barrier by trying to figure out what the majority of members of a religion thinks (hard to do reliably, plus it assumes the conclusion of who constitutes "members of a religion," and it privileges majority denominations within a religious group over minority denominations). And courts usually can't avoid the constitutional barrier, I think, by asking what the parties intended the term to mean — the best test of a word's intent is usually the word itself, and that is the very thing that calls for theological decisionmaking.

Thursday, December 25, 2008

Merry Christmas!


I'd be ungrateful if I didn't write a post to say how greatful I am for all the great things that I have in my life. Christmas is always a fun day to spend with family, friends and reflect on what's really important in life. On these days my mind drifts to the soldiers and missionaries spread out to the edges of the earth. It's because of those guys (and girls) that we get to enjoy days like today. "Thanks" and your sacrifice is not forgotten.

Wednesday, December 24, 2008

Free Online Legal Resources

For quite some time I'd been wanting to write an article about all the free legal research sources online. To highlight the alternatives to Westlaw and LexisNexis. Well the e-Justice Blog did all the work for me. They listed 100 different websites that cover a large range of resources from findlaw.com where you can look up case summaries, jurisdictions, and other historical documents to megalaw where you can look up everything from federal cases to legal forms to family law.

Monday, December 22, 2008

Why the Supreme Court got it wrong in Corp. of Presiding Bishop v. Amos

Over twenty years ago, the LDS Church played a small role in determining how the Establishment Clause meshed with Title VII of the Civil Rights Act of 1964. The case is Corporation of Presiding Bishop of the Church of Jesus Christ of Latter-day Saints v. Amos, and it used to appear in a lot of constitutional law texts. I find the case interesting for a couple reasons: first, it's amusing when sources such as Bruce R. McConkie's Mormon Doctrine or the Book of Abraham are cited in a Supreme Court brief. Second, and more importantly, I think the outcome of the case was wrong and that the Mormon Church should have lost.

The facts are these: the Church of Jesus Christ of Latter-day Saints operated the nonprofit Deseret Gymnasium in Salt Lake City under its sub-organization, the Corporation of the Presiding Bishop (CPB). The CPB also had some management in Beehive Clothing, along with the Corporation of the President (COP), another entity within the Mormon Church. Several employees of Beehive Clothing and at least one employee of Deseret Gymnasium were terminated after failing or refusing to receive temple recommends. They brought suit against the CPB and the COP. Readers familiar with the organization of the Mormon Church will recognize that the CPB deals with many secular matters of church administration, such as property acquisition and the management of physical facilities (such as the Deseret Gymnasium). The gymnasium was open to the public and there was no evidence that the facility was used in religious services, or that physical exercise was part of the tenets of the Mormon faith. Beehive Clothing, in contrast, produces temple garments and temple clothing worn in LDS temple ceremonies.

Plaintiffs made several claims under federal and Utah State law, but the major issue was whether the plaintiffs' terminations violated Title VII of the Civil Rights Act of 1964. The CPB raised the defense that §702 of the Act, which provided an exemption for religious entities from the equal employment requirements of Title VII.
This title shall not apply to . . . a religious corporation, association, educational institution, or society with respect to the employment of individuals of a particular religion to perform work connected with the carrying on by such corporation, association, educational institution, or society of its activities.
The terminated employees argued that §702 violated the First Amendment's non-establishment of religion clause because it favored religious employers over similarly situated non-religious employers.

The District Court applied what is known as the Lemon test, after the Supreme Court case Lemon v. Kurtzman (which really was derived from the prior Supreme Court cases of U.S. v. O'Brien and Clark v. Community for Creative Non-Violence). The Lemon test essentially requires that any statute affecting religion meet the following three requirements:
  • The statute must have a secular purpose.
  • If it has a secular purpose, the statute's principle or primary effect must be one that neither inhibits nor promotes religion.
  • Lastly, the statute must not foster an “excessive government entanglement with religion.”
It seems clear that Title VII had a secular purpose (to prevent employment discrimination), and the statute didn't entangle the government with religion. The real issue was whether the primary effect of §702 was to promote religion.

The Utah District Court declined to rule on whether §702 was constitutional as applied to the employees of Beehive Clothing due to a lack of evidence in the record. But the court did rule that §702 was unconstitutional as applied to Plaintiff Arthur Frank Mayson, the terminated building engineer at Deseret Gymnasium. Finidng that there was no clear relationship between the primary function which Deseret performs and the religious beliefs and tenets of the Mormon Church or church administration," the Utah District Court granted summary judgment in favor of Plaintiff Mayson on his Title VII claim. The case was reopened to allow the federal government to intervene in support of Title VII, but the District Court again ruled in favor of Plaintiff Mayson. The CPB appealed.

By all accounts, the case we very well argued at the Supreme Court level, with Rex E. Lee representing the appellant Corporation of the Presiding Bishop. Lee had stepped down from his position as U.S. Solicitor General just two years earlier, so he was a well-known face at the Supreme Court. Numerous religious organizations submitted amicus briefs urging that the District Court ruling be overturned, while labor and employment groups did likewise in favor of affirmance.

In a unanimous ruling, the Supreme Court held that §702 of the Civil Rights Act of 1964 did not violate the First Amendment prohibition of the establishment of religion. The Court said:
A law is not unconstitutional simply because it allows churches to advance religion, which is their very purpose. For a law to [have the primary effect of advancing religion] it must be fair to say that the government itself has advanced religion through its own activities and influence.
As impertinent as it may seem, I think the Supreme Court was dead wrong in Amos. This may be a tribute to the persuasive powers of Rex Lee and amici, but more likely, the Court failed to correctly evaluate the potential infringement on religion. Under my analysis, there doesn't seem to be a free exercise basis for this exemption to Title VII, as applied to Plaintiff Mayson, because employing a building engineer who doesn't hold an LDS temple recommend would result in negligible interference with religion, if any. I can't think of a rational reason why a physical fitness facility should be exempted. Even the most liberal reading of the Word of Wisdom or statements by LDS Church leaders on exercise wouldn't support an assertion that the activities of a gymnasium were central to Mormon theology. The only reason for the Supreme Court's ruling in Corp. of Presiding Bishop v. Amos seems to be that without the preferential treatment, Title VII would violate the Free Exercise Clause. But if employing a non-believing or non-temple-worthy building engineer for a secular-use building doesn't inhibit the free exercise of religion, this ruling seems indefensible.

Obviously, I would agree with the Court if Plaintiff Mayson had managed the facilities of an LDS temple. I think it would be fair to say that requiring a temple recommend (and the accompanying lifestyle and beliefs) in order to gain entrance to an LDS temple is a core tenet of LDS theology, and that any interference with this practice would violate the Free Exercise Clause.

The case of the Beehive Clothing workers presents a somewhat closer case. The Utah District Court dodged the question for lack of evidence, but it opined that plaintiffs were entitled to discovery on the following issues:
(1) the manufacturing of garments prior to 1960 and any subsequent changes;
(2) the distribution of garments prior to 1960 and any subsequent changes;
(3) the tax exempt status of Beehive;
(4) the past and current employees who were or are non-members of the Mormon Church;
(5) Beehive's contracts, both past and current, with private commercial enterprises for the production of garments; and
(6) current hiring practices of the defendants' garment and temple clothing manufacturing plants in Mexico and England.
I think the District Court was honing in on the issue of whether the employees of Beehive Clothing were involved in a religious activity. The production of clothing itself is not an inherently religious activity, of course. What might make the activity religious is the purpose for which the clothing is made. Also interesting is the fact that the plaintiffs terminated from Beehive Clothing were involved in the production process "before the garments were marked with certain religiously significant symbols," which could favor an interpretation that the activities were not religious. However, since the employees also produced clothing worn in Mormon temple ceremonies, there still is a decent argument that their activities were religious in nature.

The questions posed by the District Court would likely help settle the question of whether temple clothing and garment production is a religious activity. Today, LDS temple garments and clothing may only be purchased by temple recommend-holders, and I think the activities of Beehive Clothing should safely be considered as religious activities. But there once was a time (aluded to by the District Court) when Mormon garments were available to order from the Sears Roebuck catalog, and until relatively recently anyone could buy them from Mormon distribution centers. I would still probably favor a ruling that Beehive's activities were religious, if only for the aspect of temple clothing production, but it's a close call. We'll never know how the Supreme Court would have ruled on the issue because only Plaintiff Mayson's claims were granted and appealed, but given the Court's (in my opinion) faulty logic in Amos, perhaps it was better left undecided.

Sunday, December 21, 2008

Networking Websites

A number of social networking sites hope they have lawyer appeal, including:

CasemakerX—A free social networking and research tool that allows law students to search primary federal and state law.

Facebook—The Hot Spot, it claims 90 million users. Though it began as a personal social network, its business application has grown.

LawLink—A no-cost lawyer-to-lawyer network with about 4,000 members, including the Santa Clara County (Calif.) Bar Association.

Legal OnRamp—an invitation-only site for some; in-house counsel can join without restriction, but law firm attorneys must be invited. The site stresses collaboration by sharing opinions, research, work product and other information. For such premium services as a “private ramp” accessible only to certain people and the ability to automate legal processes, members pay from $30,000-$100,000 per year.

LinkedIn—Boasted 25 million members as of July and claims 1 million new members join every month. For upgraded services, such as the ability to contact other members through the site, fees begin at $19.95 per month.

Martindale-Hubbell Connected—To launch in early 2009. Members will be able to determine whether the lawyers they’re researching are connected through their personal LinkedIn relationships. Membership will be free for attorneys who advertise in Martindale-Hubbell.

Merrill Lextranet 5.6—Merrill adds social networking. Membership is free to corporations using its case management programs. (Info only—must buy software and services to access )

MySpace—The Granddaddy, with more than 100 million members. Though some professionals use MySpace for business connections, many consider it youth-dominated and more of a personal site.

Saturday, December 20, 2008

The Drug War on Mexico

Click HERE for an interactive link from the LA Times on Mexico's Drug War. The amount of violence of absolutely shocking. The Iraq war started on March 19, 2003 and since that time, (as of today) 4,209 American soldiers have been killed in combat. Since January 1 OF THIS YEAR through November 28 OF THIS YEAR (more than) 6,836 have been killed in the Mexican drug war. This would be scary if it were happening anywhere in the world but when you see how many people are being murdered in our back yard its scary. The problem isn't likely to get better anytime soon, the Mexican government is plagued with corruption, budget shortages, lack of resources, and a very determined enemy. The amount of violent murders has many in Mexico calling for the reinstatement of the death penalty. Unfortunately, I don't think that's going to help the situation even if it were to happen.

Friday, December 19, 2008

Church Loses Land Lease Lawsuit in California

Court of Appeal, Fourth District, Division 3, California.
2151 MICHELSON, L.P., Plaintiff and Respondent,
v.
CORPORATION OF the PRESIDING BISHOP OF the CHURCH OF JESUS CHRIST OF LATTER-DAY SAINTS, Defendant and Appellant.
No. G039654.
(Super.Ct.No. 04CC05362).
Dec. 11, 2008


2151 Michelson Avenue in Irvine, California (the Property). The 55 year ground lease governing the parties' relationship provides lessee with the right to construct and operate an office building at the previously unimproved Property for the term of the lease, whereupon the rights to use and possession of the Property (including all improvements made by the lessee) revert to lessor. In exchange, the lessee pays $88,165 in annual rent for the first 25 years of the lease (until June 1, 2002), plus a minimum annual rent of $88,165 for the remainder of the lease term. The rent is subject to upward adjustment in the 25th and 40th years of the lease, but such adjustment must be calculated under the hypothetical assumption that the lessee's improvements do not exist; in other words, the adjusted rent is what lessor could obtain (in 2002 and 2017) on the “open market” for a 55 year ground lease at the Property without any of the improvements actually constructed.

Michelson filed a declaratory relief action, claiming no upward adjustment in rent was justified as of June 1, 2002. CPB requested the court to find annual rent for 2002 to 2017 in the amount of $513,000. The court found in favor of Michelson after weighing the percipient and expert testimony introduced by the parties. The court found the lease did not call for the straightforward application of the sales comparison approach advanced by CPB (appraising the value of the land by using contemporary sales of comparable properties, then multiplying the appraised land value by a market rate of return for commercial leases to obtain the adjusted rent number). Instead, the court credited evidence submitted by Michelson's experts tending to establish the Orange County commercial real estate market in 2002 would not support a ground lease transaction as contemplated by the lease-thus, the Property could not get a higher rent on the “open market” with the same terms of the lease at issue. Because we agree with the court's interpretation of the lease, and because there is substantial evidence supporting the court's application of the rent adjustment provision to the facts in this case, we affirm.

Thursday, December 18, 2008

Network It Up

As Scott Sigman rattles off some of the online social networks he’s joined, it’s plain he’s a true believer.

“MySpace was really the first. It’s for the younger crowd, but it’s OK,” says the associate at Bochetto & Lentz in Philadelphia. “Friendster is pretty much dead in the water. LinkedIn and Face­book are the two most popular, and Facebook is unbelievable. It has many of my attorney colleagues and high school and undergraduate friends. It’s an amazing way to connect with people from my past.”

Sigman has joined just about every online social networking site he can find. “I have pretty much an identical profile, with the same photo and bio on all,” he says, referring to a snapshot that plays off his Philadelphia roots by featuring him in a business suit while sporting vibrant red boxing gloves, Rocky-style.

Sigman is constantly working the sites to build more contacts that he hopes will bring him new business.

“My LinkedIn connections are probably near 1,000,” he boasts, “and I have about 965 friends on Facebook.”

It’s paying off, according to Sigman. “I get numerous requests for representation through LinkedIn and Facebook—at least 20 e-mails a month between the two sites,” says the former Philadelphia assistant district attorney. “I bring in an average of three to five cases a month from those contacts, whether it’s a driving-under-the-influence criminal case, civil representation or someone asking for a referral.”

That adds up to $20,000-$100,000 in legal business generated through online networking each year. “That’s cases and referrals for work on an hourly basis,” says Sigman. “On contingent fee cases, it could be in the millions. It’s an unlimited number.”

Sigman is an outlier, as they say in the statistical world, in both his involvement with and enthusiastic endorsement of social networks. But the two ends of the continuum of opinion about social networking can be seen in the statistics he rattles off. Five- or six-figure payoffs ain’t hay, many lawyers would say. But take in the effort to keep up with 2,000 or so contacts, and your yearly harvest divides down to between $10 and $50 per contact, others might argue.

VARYING DEGREES OF ACCEPTANCE

The appeal of social networks is undeniable, but their business value—especially among law firms—is a matter of debate and, in certain ways, generational divide.

Are social networks worth it? How much time, effort and money must be spent to maximize their potential? And what is the reward? In the end, the answers vary de­­pending on what you do online, how you do it and why.

According to the ABA’s annual Legal Technology Survey Report, only 15 percent of respondents say they’ve joined such a network.

“I have absolutely no interest in people I don’t know saying they want to be my friend,” jokes Gary Griffin, chief, General Law Bureau, Illinois Attorney General’s Office. “It’s not like I haven’t looked at these sites, but the fact that Kelly from Arkansas wants to be my friend —what do I care?”

In between Sigman and Griffin, there’s a middle ground of attorneys who’ve loaded their profiles onto at least one social networking site because doing so is generally free. For some, the network profile has drawn modest business.

“It’s generated about $5,000 worth of business to me, which on an annualized basis isn’t so much,” says Pat­rick Tracy, a solo patent attorney in Kensington, Md., of his memberships in LinkedIn and Facebook. “It’s another significant advertising opportunity, and it’s always there. But it’s not going to be a panacea for anybody.”

For others, uploading their profile is as far as they’ve gone. They’ve decided not to join as many sites as Sig­man, nor have they spent the time he has in building connections. They offer up many reasons: Online social networking doesn’t generate business. It’s time-consuming. It’s confusing. It’s invasive. It’s not professional. It’s just for socializing among the younger crowd.

Many attorneys made the same arguments about e-mail and websites just 15 years ago. Technology experts say the naysayers are wrong again.

“The impact online networking sites are having on the legal world is only beginning to be felt,” says Rob­ert Ambrogi, a solo attorney and technology writer in Rockport, Mass. “At this point, you’ll find a lot of the usual suspects on all the sites, but the sites haven’t come to the point of having widespread application. That time will come, however, because interest in them is growing.”

Denise Howell, a tech-savvy sole practitioner who specializes in intellectual property and technology law in Newport Beach, Calif., says social networks are important to the legal profession today, “yet not too many attorneys are participating in them. That’s a function of generational forces. People coming out of law school today are very steeped in this. As those people come up and begin managing the biggest law firms, you’ll see this communication become commonplace.”

For the uninitiated, let’s back up and define our terms: Online social networks are website communities that allow members to post profiles of themselves with the goal of meeting others with similar interests, whether it’s a niche legal practice or fly-fishing.

“It’s like a phone book,” says Ambrogi. “But you have unique control to build your profile, so it’s really powerful.”

The big names include MySpace, which many people consider to be youth-dominated and nonprofessional; Facebook, which has a mix of young and older, and personal and professional, members; Linked­In, a business networking site; and the invitation-only Legal OnRamp, which bills itself as a site on which in-house counsel and law firm attorneys can share opinions, research, work product and other information.

Just launched is the ABA’s social and professional networking site, LegallyMinded, which allows not just lawyers but all legal professionals—including paralegals, law students and professors—to share information, create groups and connect with others with similar interests. (See “The ABA Gets Social.”)

STRENGTHS AND WEAKNESSES

Each site has benefits and drawbacks. “Facebook and MySpace are really 90 percent social,” says Suzanne Hawkins, former chief of practice excellence at the recently dissolved Heller Ehrman in New York City. “The benefit is that if your entire group of contacts is using these sites, you can socialize with them and their contacts. But they’re not really built for business networking.

Suzanne Hawkins
Photo by Matt Carr

“For instance, in Facebook [sometimes] you have to be invited to be someone’s friend to see that person’s profile. If I wanted to use it to network, nobody could find me, which makes using it somewhat complicated.”

“If you’re looking for business networking,” continues Hawkins, “you may need to go to LinkedIn. It’s a very good and active site, and it can be very useful if you’re looking for a position, trying to find your contacts or researching companies you want to work with.

“And it’s not just for lawyers. You may have connections with a former college [acquaintance] who’s now the CEO, the chief financial officer or head of human resources at a company. That could be beneficial for networking, but also for developing business.”

But many lawyers question the utility of lawyer-to-lawyer sites, perhaps because none has yet to catch fire.

LawLink appears to be the strongest, with its 4,000 active members posting profiles and at­torney employment po­sitions. However, many parts of the site are outdated: The most recent post in a recent visit to the law marketing forum was added on Nov. 14, 2007. And there’s never been a post in the ethics forum. When contacted to ask about their membership in LawLink, several attorneys didn’t return e-mails or were no-shows for interviews.

Another issue is that many attorneys actively involved in online social networking have never heard of the lawyer-to-lawyer sites. “I’m not even familiar with them, and I’m pretty Internet-savvy,” says Jason Trump­ler, a solo with offices in Texas and California who’s had success networking on MySpace, Facebook and LinkedIn.

One standout site, however, may be Legal OnRamp. Membership in Legal OnRamp is free to any in-house counsel. However, law firm attorneys can join only if invited by in-house counsel. Once in, basic networking is free, but members can pay for premium services such as a “private ramp” accessible only to members and the ability to automate legal processes. Those services range from $30,000 to $100,000 per year.

“Legal OnRamp seems to be the only one that’s viable at this point,” says Hawkins. “But it’s still a question mark. It’s not clear that the best lawyers are on that system. Will they have time to be add­ing content to the site, or will they be in the court­room or doing deals?”

‘I’M IN. NOW WHAT?’

Many attorneys have had a two-step response to online social networking sites. First, they’ve decided they might as well load their profile because it’s free advertising. Then, when no fireworks have immediately illuminated the sky above them, they’ve wondered what all the fuss was about.

“I heard about LinkedIn and thought I’d give it a try because it can’t hurt,” says Michael D. Caccavo, a sole practitioner in Barre, Vt. “Then I thought, ‘I’m in. Now what do I do?’ ”

Caccavo has been a member of LinkedIn’s basic, no-cost service for more than a year. He’s joined a few groups (the estate-planning legal network, the New England legal network, the solo practitioners forum, solo marketing and Solosez friends), and he occasionally offers his expertise to LinkedIn’s “Answers” section, where members can pose questions and provide answers.

He hasn’t seen any tangible results, but he also isn’t disappointed. “I haven’t really advertised my LinkedIn presence too much, and I might have a better presence if I did,” Caccavo says. “But I’m not looking at it as a big marketing component. I’m experimenting a little to see where it goes.

“But so far, it has some value because I’m trying to develop more of a diverse set of connections, and it’s a diverse network. I also think, for professionals, it sets you apart as being more cutting-edge, particularly around this part of Vermont because a lot of people haven’t heard of it.”

Caccavo also joined Facebook in the summer after seeing extensive chatter on the ABA’s Solosez discussion group. “Facebook has been great for connecting with one of my kids who’s out in Oregon. I was able to see a picture of him fighting forest fires,” he says with a laugh. More seriously, he adds, “I don’t spend a lot of time on Facebook, and I don’t really know what I’m going to do with it.”

To get past that “now what?” feeling, lawyer-blogger Carolyn Elefant suggests starting small. “Pick one social network and focus on that instead of signing up for five or six and spreading yourself thin,” says the sole practitioner in Washington, D.C., and author of the e-book Social Networking for Lawyers: What, Why & How.

“Investigate a couple of sites and speak with colleagues to find which they’ve found to be the most useful,” Ele­fant says. “Join one and upload as much information as you can to make it a robust site. Then spend time looking around the site, doing searches, making contacts with­in the site and finding people who share similar interests. If you make a connection, the most useful thing to do is to take the conversation offline privately through phone or e-mail and get to know people on the sidelines.”

Before Thomas Rossmeissl joined Pillsbury Winthrop Shaw Pittman in Palo Alto, Calif., he was a trust attorney at a major West Coast bank. When the bank reorga­nized in January, Rossmeissl found himself out of a job.

“Because I had a fairly extensive network on Linked­In that I could connect with immediately, I got another job fairly quickly,” he explains. “Whenever a change is made to the status of your profile, LinkedIn sends an e-mail to your network.”

That, Rossmeissl believes, is what made some legal recruiters get in touch. He was also able to send e-mails to all his connections on the network, which helped get the word out quickly that he was on a job hunt.

“Would I attribute getting my job so quickly directly to LinkedIn?” Rossmeissl asks. “Not 100 percent, but it helped to have that resource available.”

Griffin is still not sold. “Maybe it’s just an age thing, but I’d rely more on word of mouth because I think that while you open up more possibilities [with online networks], you also open up more dead ends,” he says. “It’s sort of like online dating. Do you want to go on more dates and have more dates fail, or do you want to narrow your search?”

Attorneys have benefited from information exchanges. “I’ve made a lot of connections with lawyers on Legal OnRamp who I probably never would have met any other way,” says David Cohen, director of legal affairs and risk management at the Major League Baseball Los Angeles Angels franchise in Anaheim, Calif. “I’ve also tapped into the expertise of others without generating a huge cost for my company.”

Specifically, when Cohen decided he wanted to test an alternative billing model to pay outside counsel handling general liability claims, he turned to Legal On­Ramp. “I got into a discussion with a couple people, and they gave me tips for developing it and making sure it’s fair. Be­cause of that, we’ve been able to de­velop a billing system with our [outside counsel] that works really well.”

STRENGTH FOR SOLOS

Many solos and small-firm attorneys say online networking has leveled the playing field between them and their big-firm counterparts.

Take Jonathan Davidoff, a former New York City solo who recently merged with two others to form Schwartz, Resnick & Davidoff in New York City. Davidoff is a member of both LinkedIn and Facebook. Though he praises LinkedIn for helping him reconnect with faces from his past, he’s getting more business because of Facebook’s instant-messaging feature, which isn’t available on LinkedIn. (IMs allow you to send a brief message that instantly appears on a friend’s computer screen and continue the discussion in real time.)

About 15 percent of Davidoff’s business comes from referrals from Facebook friends because of its instant-messaging feature. “The personal interaction of an IM adds a lot more to the domain than LinkedIn,” he says. “It’s also free.

“This is basically how it goes: I get an IM from a friend that says, ‘Hey Jonathan, how are you doing? I see you’re living in New York City now. What kind of law are you practicing?’ I tell him and later get another response: ‘I have a friend who has this situation and doesn’t want to spend a fortune on an attorney. Can you help?’ All of a sudden, that’s a $20,000 client.”

Though attorneys at large firms can also get those kinds of referrals, Davidoff says they’re more valuable for solos and smaller firms. “The truth is that big law firms don’t want their attorneys on Facebook because the business they’d get is minimal to none,” he says. “Big firms don’t want $15,000 matters. They want $150,000 matters. But for small firms, every client and every penny counts in today’s economy.”

Still, many attorneys get into online social networking with trepidation. Primary concerns include privacy, professionalism, increased spam and the time spent online.

Sometimes concerns about privacy and professionalism are related. “Your information is out there for the whole world to see, so you need to make sure you’re not afraid for others to see it,” says Sigman. “I’m very selective about what I put on these sites. I try to keep personal information out of my profiles, and that includes any photograph I’d consider unprofessional.

Stay away from pictures of you getting drunk at a bar.”

That also means being judicious about publicizing personal beliefs that could make the wrong first impression. “Be cautious about the groups you join because that will show up on your profile,” says Caccavo. “For that reason, I’ve stayed away from listing my political and religious preferences.”

“The conclusion I’ve reached is that you shouldn’t mix business with pleasure,” says Melody Kramer, a sole practitioner in San Diego who belongs to several online social networks. Kramer is not only careful about her profiles, but also about comments her friends post on them. “Remember that anything that’s accessible to the public, opposing counsel can access, too,” she says.

Others, however, don’t see a problem. “Some sites like Facebook and MySpace are less professional, but I don’t really have concerns,” says Elefant. “They’re self-regulating. Lawyers putting pictures of themselves in a bikini online isn’t very professional, but that’s happened even without social networking sites. There are always opportunities for lawyers to make themselves look ridic­ulous, and it’s not the tools but how you use them.”

Some attorneys complain that online social networks can be time-suckers. You sign on, and the next time you look up, your morning’s gone, and what do you have to show for it?

“You could spend days managing and upgrading these sites and responding to inquir­ies,” says Elefant. “Like everything else, you have to limit these activities to a certain time of day and a set number of hours so that you don’t get lost in them and get nothing done.”

Those aren’t just concerns for individual attorneys; they’re also potential headaches for large firms. “Law firms are concerned about online social networks as either a time-wasting vehicle or a way that information that the law firm would ordinarily hope to keep under wraps gets out into the world,” Howell says.

“I’ve heard stories about firms turning off Facebook access or having a policy against social networking, and I just laugh,” she says. “It’s the stupidest policy I could imagine if you want lawyers to develop as lawyers and as people who bring business into the firm. It’s like saying to generations past, ‘We’re not going to let you call your friends on the phone, go golfing with them or have cocktails after work.’

“Social networking has supplemented those kinds of real-world networks and made them something that’s persistent and always on. A cultural shift is under way, and law firms are behind the curve,” Howell adds. “Law firms are going to have to accept the fact that the distinction between personal and professional is blurred, and they’re going to have to accommodate that in a way that makes sense. The smart law firms will find a way to embrace this.”

Smart individual attorneys will, too, says Davidoff. “This isn’t just a temporary wave,” he says. “It’s a wave of today and tomorrow. It’s just like the telephone. There will be variations and improvements, but the telephone is here to stay, and so are these networking domains. These sites have the potential to be great.” by G.M. Filisko who is a lawyer and freelance journalist in Chicago.

Wednesday, December 17, 2008

Technical Question

I have recently attempted to submit my blog to the ABA Journal's Blawg list; however there they have said that our RSS Feed has a problem and therefore can't be submitted. They advised me to go to http://validator.w3.org/feed/ and submit the feed and make the changes that it suggests. However, upon attempting to validate the RSS feed it gave me a long list of XML fixes that need to be made. But does anyone know of a work around or any other suggestions? Thanks.

Tuesday, December 16, 2008

First ABA Accredited LLM, Completely Online

Thomas Jefferson School of Law remains the first and only law school to offer graduate law degrees and certifications entirely online at an ABA accredited law school.

The student body adds an interdisciplinary element to the educational experience. Although individuals with law degrees make up roughly half of the student body, the other half is drawn from the fields of accounting, finance, economics and other business disciplines. The result is an educational environment that permits the students to learn as much from each other as they do from the instructors and the courses they teach. Eventually, each student will belong to a growing international network of alumni who work in the most influential law firms, financial institutions and government agencies throughout the world.

Initially created to culminate in an LL.M. in international tax, the online program has grown to meet a wide range of career objectives and needs represented by the individuals who seek the flexibility that only this online program can offer. Additionally, students who do not seek a traditional law degree can pursue a course of study that culminates in a certificate in one of six areas of specialization. Both degree candidates and non-degree students may seek "Certificates of Expertise" to make themselves more marketable in the job field. The Thomas Jefferson School of Law 's online LL.M. in international tax is $1000 per credit hour.

Because so much of LLM programs are lecture based a student could view these lectures from their laptop in a different part of the country. Online LLM's make a lot of sense and I can see more law school's offering them in the future but then again when a school is based in San Diego who wouldn't want to go to school there in person? It's not like it's in Ohio.

Church Zoning Passes Another Hurdle

A controversial church plan received a preliminary blessing Wednesday from East Hempfield Township officials — but also a warning that final approval will require more work. The township planning commission voted 5-1 to recommend approval of a preliminary plan submitted by the Church of Jesus Christ of Latter-day Saints to build a 25,790-square-foot Church.

However, the commission rejected the church's request to endorse a final land development plan and demanded more detail before it comes back for consideration. The plan has already cleared hurdles with the zoning hearing board, obtaining a special exception for a church in a residential-1 zone. It still must go before supervisors for final approval.

Supervisors earlier this month considered — and abandoned — a motion to appeal the zoning board's decision. The vacant 10.22-acre tract is at the corner of Harrisburg Pike and Sylvan Lane. The plan includes 236 permanent parking spaces, 51 temporary spaces in a grassy overflow lot and a sanctuary with a seating capacity of 320.

Planning commission chairman Keith Falco urged architects to add sidewalks and a landscape buffer around the parking lot before the plan comes back for final approval. David Blackman, from township planning and development, said East Hempfield wants sidewalks along Sylvan Lane and Sunwood Lane as part of the initial construction. A sidewalk along Harrisburg Pike should be delayed until officials determine a "codified plan" for the busy corridor, he said.

That means traffic heading west to the Route 283 exchange would have to exit onto Sunwood Lane, drive east to Sylvan Lane and turn onto Harrisburg Pike at a traffic signal. Residents have said the plan puts a burden on their residential lane. They also worry that motorists might turn west onto Sunwood Lane and cut through the neighborhood. Supervisors have said the church must restrict right turns by church patrons, possibly by placing temporary barriers on the street.

"A lot of us would love to see full access out onto Harrisburg Pike," township planning director Mark Stivers said. "I think we agree that's the best place for it." However, he said, the township can't overrule PennDOT's decision.

Several residents said parking is inadequate for twice-annual church conferences, which church leaders have said could draw up to 900 people. Dan Crocker of 1004 Sunwood Lane said excess cars will park on the streets. And Edward Hunter of 1106 Sweetbriar Way said ordinances should require the church to provide 450 permanent parking spaces to handle the crowd.

But Falco said the issue will be addressed by a building code inspector during the final land development process. Karen Schmitz of 1110 Persimmon Drive argued the plan exceeds the 30 percent maximum lot coverage. The plan lists lot coverage at about 22 percent. Schmitz said the plan does not account for some drives, walks and impervious parking surfaces, which she said take coverage to closer to 35 percent. Blackman said he would look into the matter.

Several residents said church leaders are unwilling to meet with neighbors to address their concerns. But a church spokesman said later that efforts to meet with residents have been rebuffed. Falco urges both parties to get together and hammer out their differences.

Falco also said he wants the church to take another look at bringing traffic into the site from Harrisburg Pike. "There is a lot of cleanup that needs to be done," he said. "There are some items and details that need to be worked out." Planning commissioner Andrew Weaver voted against the motion. He said access issues should be resolved before a preliminary plan is approved.

The Legal Office of the Future?

There’s a new law office on 24th St. N.W. and M St., but you won’t find any partners roaming the halls. There aren’t any secretaries there either. The entire office, in fact, is only about 1,000 square feet.

It’s the newly opened D.C. location of Axiom, the law firm that started in New York seven years ago and touts itself as an innovative, less expensive alternative to traditional firms. Axiom, which employs 216 lawyers, doesn’t have a partnership, doesn’t use the billable hour, and its lawyers work from home or in the offices of clients. The new D.C. digs, like Axiom’s other offices in New York, San Francisco, Chicago, and London, serve largely as a hub for taking client calls that are then filtered out to the firm’s remote attorneys.

Will McKinnon, general manager in Washington, says he expects the office to be fully up and running by January. Presently, he and the office’s practice management head, Ben Lieber, are focused on recruiting. McKinnon says 26 lawyers have either joined or are in the final stages of accepting offers to start at Axiom. The office will have capabilities in transactional work, intellectual property, securities, and labor and employment. Axiom also hopes to get into government affairs and government contracts work in the District.

Lieber says the recruits are dominantly coming from large Washington and New York-based firms. “The household names,” he says, though he wouldn’t specify further. Lieber himself was once an associate at Covington & Burling, though he was most recently general counsel of the D.C. lobbying firm Carmen Group. Lawyers in Axiom’s other offices come from firms such as Latham & Watkins, Cravath, Swaine & Moore, and Skadden, Arps, Slate, Meagher & Flom. Lieber says Big Law attorneys are attracted to Axiom’s flexibility, since unlike at traditional firms, they get to choose their hours and client assignments.

They also escape the pressure of the billable hour, since Axiom bills clients by the week. McKinnon says Axiom’s rates break down to “one-half to one-third of the benchmark rate for big firms, which is generally $500 an hour.” Lieber says firmwide revenues will break $50 million this year, and that the average Axiom lawyer makes $210,000 a year.

It may be pulling talent from Big Law, but Axiom is a long way from becoming a serious competitor with traditional high-end firms. It operates a bit like a contract-attorney service, since Axiom lawyers are often assigned to work for months in the in-house legal departments of clients.

McKinnon and Lieber say the firm has not yet established clients in the D.C. area, but that it’s eyeing Fortune 1000 companies that operate here, and even federal government agencies. Axiom’s Web site lists companies such as Bank of America, NBC Universal, Sun Microsystems, and Yahoo as clients. by

Saturday, December 13, 2008

Mormon Missionary Shooter Found Guilty of First- Degree Murder

A jury has found James Boughton guilty of killing Morgan W. Young and wounding Joshua Heidbrink, two Mormon missionaries shot nearly three years ago while proselytizing door-to-door in the city.

The jury returned the verdicts Friday night against James Boughton Jr., 22, after deliberating more than two days in Chesapeake Circuit Court.

Judge Randy Smith asked the jury to return Monday morning for the sentencing phase of the trial. The jury found Boughton guilty of first-degree murder, malicious wounding, attempted malicious wounding and three counts of use of a firearm. Boughton, faces the possibility of life in prison.

Boughton, in suit and tie, stood in court as the verdict was read, with no outward sign of emotion. He was 19, a recent graduate from Deep Creek High School, at the time of his arrest for the crime.

Young and Heidbrink were in the Deep Creek section of Chesapeake proselytizing the night of Jan. 2, 2006, as a violent neighborhood dispute was unfolding. A hooded gunman had attempted to shoot an Elkhart Street resident, Gregory Banks Jr., and was fleeing the area when he crossed paths with the missionaries.

The missionaries assured the approaching gunman that they hadn't seen anything, according to court testimony. The gunman, armed with a 9 mm gun, shot them both and fled. Young, 21, of Bountiful, Utah, died of a wound to the head. Heidbrink, then 19, from Greeley, Colo., managed to go for help at the nearby Charity House.

Commonwealth's Attorney Nancy Parr and Deputy Commonwealth's Attorney D.J. Hansen used DNA evidence and the testimony of a Chesapeake teen to link Boughton to the crime. The surviving victims, Heidbrink and Banks, were unable to identify the hooded gunman.

Boughton's defense attorney, Andrew Sacks, argued his client was at a friend's house in Camelot playing video games the night of the shootings. He produced several witnesses who supported the alibi. Sacks argued in court that the real shooter that night was Mario Felton, a 17-year-old who was feuding with Banks over $80 in drug money. Felton initially told police he was the one who fired the 9 mm weapon three times that night, but later told police he made the story up to cover for Boughton.


Friday, December 12, 2008

Jurors Continue Deliberations in Mormon Missionary Shooting Case

Jurors are expected to continue their deliberations today in the trial of James Boughton Jr., the Chesapeake man accused of shooting two Mormon missionaries nearly three years ago.

Jurors began deliberations Wednesday afternoon and spent much of the day Thursday deciding Boughton’s fate. The 22-year-old faces charges of first-degree murder, malicious wounding and three counts of use of a firearm.

Morgan W. Young and Joshua Heidbrink were shot the night of Jan. 2, 2006, while proselytizing in Deep Creek. Young died from a wound to the head. Heidbrink survived his injury.

Wednesday, December 10, 2008

Idaho Mormon Church Vandalized

The Bonneville County Sheriff's Office is investigating a vandalism to an LDS Church construction site. This is the third time vandals have struck at the Mormon Church building on East Iona Road since construction began. This time, someone turned on the valves to the buildings fire sprinkler system over the weekend. When crews showed up Monday morning, they found water running everywhere. Up to six inches of water was on the floor in the gym and all the sheet rock that was just installed was destroyed. Work had to be halted while the water cleared out, says foreman Ken Gorver.

Ken Grover: "Well, we couldn't do anything for a while because of the electrical inside. You didn't want to walk in the water and get shocked, it was that deep in there. Running out the doors, covered all the floors like a waterfall inside, running across the parking lot."

The sheriff's office believes it's juveniles committing the crimes but so far, they have not been able to identify who they are. Other vandalism crimes at the construction site include theft, spray painting and small fires inside the church.

Friday, December 5, 2008

Prosecutors Rest Their Case in Mormon Missionary Murder

CHESAPEAKE, Va. -- Prosecutors rested their case Thursday against James Boughton Jr., a 22-year-old man accused of shooting two Mormon missionaries in January 2006.

Boughton has been on trial in Chesapeake Circuit Court since early November for the first-degree murder of Morgan W. Young and the malicious wounding of Joshua Heidbrink, missionaries shot while proselytizing in Deep Creek. Boughton, a Camelot resident, also faces a charge of attempted malicious wounding.

The jury could begin deliberating Boughton's fate next week. Boughton's defense attorney, Andrew Sacks, expects to wrap up his case today.

On Thursday, Sacks called the defense's first three witnesses, including a 44-year-old inmate who told federal agents in 2006 that a jail inmate by the name of Marvin Basnight admitted to the shootings.

Nurney Hurdle Jr. said he once shared a cell with Basnight at the Chesapeake Correctional Center.

"He was speaking of the Mormon murder," Hurdle testified. "I guess his conscience was getting the best of him." by www.mormontimes.com

Friday, November 21, 2008

Kyrgyzstan's New Law Affects Mormon Church

The Kyrgyz Republic — a former Soviet republic that has recently hindered efforts by The Church of Jesus Christ of Latter-day Saints for official recognition — is about to severely further erode religious freedom, a U.S. watchdog agency says.

The U.S. Commission on International Religious Freedom warned Wednesday that the country's parliament passed a law that would make it more difficult for churches to register before they can operate legally, ban children from participating in religious organizations and ban distribution of religious materials in public places.

"If the president signs the law as passed by the parliament, religious freedom will be eroded in Kyrgyzstan, which used to enjoy the reputation of being (the) most democratic of the post-Soviet Central Asian republics," said Felice D. Gaer, head of the commission established by Congress to watch religious freedom globally.

She called for the United States to work through diplomatic channels to urge Kyrgyz President Kurmanbek Bakiyev not to sign the legislation, which she said would provide "legal cover for egregious discrimination on the basis of religion."

A State Department report released earlier this year said the LDS Church was already having troubles there even before the new law.

That report said, "Several religious groups had difficulties registering. The Church of Jesus Christ of Latter-day Saints (Mormons), which initially applied for registration in 2004, was still not registered at the end of the reporting period," a requirement before it may operate legally in the country.

The new law would make it much more difficult to register. Instead of requiring just 10 members in the country before a church could register, it would now require 200, the commission said.

Members of the European Parliament, in a visit to Kyrgyz last month, raised concerns about the new bill. Also, Alexander Shumilin, chairman of the Kyrgyz Council of Church of Evangelical Christians, told a press conference last month the new law could force many churches there into operating illegally and in hiding.

"We respect Kyrgyz laws, but our main mission is spreading of the gospel and we are so committed to it," he said.

The Kyrgyz Republic, which is slightly smaller than South Dakota, has a population of about 5.4 million. It is 75 percent Muslim, 20 percent Russian Orthodox, with other religions accounting for 5 percent of the population. It is bounded by Kazakhstan, Uzbekistan, Tajikistan and China. by Deseret News

Thursday, November 20, 2008

Mormon Missionary Testifies Against Shooter

Morgan W. Young, of Bountiful, was on one knee, writing down the name and number of a man he and his missionary companion had met while proselytizing.

Fellow Church of Jesus Christ of Latter-day Saints missionary Joshua Heidbrink, of Greeley, Colo., was by Young's side as the two prepared to end their day on the streets of Deep Creek on the day after New Year's 2006.

They saw a man up the street backing away from a house, his arm extended. There was a gunshot, then the hooded man with a gun ran toward them.

"It was very quick," Heidbrink testified Wednesday in Chesapeake Circuit Court.

Heidbrink said he recalled two flashes. The first sent him to the ground.

"Then I saw another flash, and then I heard a bang from a pistol,'' he said.

The second shot sent 21-year-old Young face-first to the rain-soaked pavement. He had been shot in the head and would soon be dead.

Heidbrink tried to wake his companion, but there was no response. He went for help at the nearby Charity House.

"I opened up my raincoat and suit coat and saw the blood running down my chest,'' Heidbrink testified. He had been shot in the shoulder.

Heidbrink was a prosecution witness in the trial of James Boughton Jr. The 21-year-old is charged with first-degree murder, malicious wounding, attempted malicious wounding and three counts of use of a firearm.

Police had shown Heidbrink a photo lineup of six people after the shooting.

"I could not identify anybody," he testified.

Commonwealth's Attorney Nancy Parr and Deputy Commonwealth's Attorney D.J. Hansen used the testimony of another witness, 19-year-old Mario Felton, in an attempt to tie Boughton to the shootings.

Felton and Boughton had gone to the Elkhart Street duplex of Gregory "Life" Banks Jr. They laid in wait for Banks outside his home, Felton said.

Felton and Banks were feuding over $80 in drug money.

"Why were you going to go over there?" Hansen said.

"To beat him up," Felton said.

Boughton had a gun that night and wore a black hoodie, Felton said. Boughton waited at one end of the house; Felton waited behind the other end of the duplex.

Felton testified that he ran away when he heard a car coming. As he ran, he noticed two white men, with a black man on the street nearby, he said.

He continued to run and heard a single shot, he said. Then there were two more. Then, he testified, Boughton ran up behind him yelling a racial slur and said, "I got them. I got them."

Felton admitted to hiding the 9 mm handgun Boughton was carrying. He also gave police a statement when they approached him about his actions that night.

"I told them that I shot the gun three times," he testified.

He said that was a lie to cover for Boughton, a friend he often referred to as "Sleep.''

"I was trying to protect Sleep. Then I started thinking, for what?" he testified.

Andrew Sacks, Boughton's attorney, is expected to cross-examine Felton today when the trial resumes. by the Virginia Pilot

Tuesday, November 18, 2008

Trial Underway in Virginia for Mormon Missionary Killer

CHESAPEAKE, Va. - The trial of a Virginia man accused of killing one Mormon missionary and wounding another in 2006 is under way in Chesapeake. The jury heard opening statements on Monday in the case of James Boughton, who is charged with first-degree murder, malicious wounding, attempted malicious wounding and three firearms violations. Missionaries Morgan W. Young, of Bountiful, and Joshua Heidbrink were shot while knocking on doors in Chesapeake in January 2006. Young died of his injuries. Heidbrink, of Greeley, Colo., recovered from the shooting. Attorneys for Boughton told the jury that another man was responsible for the shootings and that Boughton has an alibi. Prosecutors say a dispute over money led Boughton to the neighborhood and a run-in with the missionaries.

Phoenix to begin its 16-story Criminal Court Tower

The Maricopa County Board of Supervisors sacrificed $86 million in capital-improvement projects Monday, instead unanimously deciding to spend the money on a courtroom complex in downtown Phoenix.

The 16-story Criminal Court Tower could cost $340 million and likely will be the county's most expensive project, filling a block bounded by First and Second avenues and Jackson and Madison streets.

Most criminal cases are tried in the downtown Phoenix Superior Court Complex, but with 40,000 felony cases filed yearly and the number projected to grow, the tower is meant to handle ever-increasing caseloads.

In shelving other projects, the board hammered home that it is committed to the tower, despite slumping revenues, a gaping hole in its budget, and bleak briefings from economists who predict the economic situation will get worse.

"There will never be a better time to build that building than right now," said Republican Supervisor Max Wilson.

To help cover court-tower costs, the board shelved a $67 million plan to expand a regional court in Mesa, a $13 million project to build a sheriff's office 911 center and crime lab, and a $6.3 million plan to knock down First Avenue Jail.

For years, county officials have squirreled away money for the judicial complex, which will add 32 courtrooms. Now's the time to spend it, they say, when prices for labor and building materials are down.

"We consider it a business decision," County Manager David Smith said. "It's one that's made apart of the ups and downs of the current economy. We've been saving money for at least eight years, and it's the right way to do economic stimulus, with the 500 jobs (that will be added during) the next three years during construction. We're doing it with cash, we're injecting that savings account back into the economy, (and) that will circulate several times, all to local employees and contractors and so on."

Kenny Harris, an assistant county manager, said, "We're going to save money . . . because of the recession. As long as the economy struggles, it's the best time for government projects to step up.

"In order to keep their businesses open, (subcontractors) are willing to do the work and reduce their profit margins and their fees to do the work. It's better to stay in business and take less money than close your doors."

The county hopes to open the court-tower doors in early 2012.

Eighteen months ago, the board gave the go-ahead to design and build the tower, and authorized spending $342.4 million. Officials have spent about $11 million, and on Monday, reduced the project's funding to $339 million. The county will break ground on the project next month, starting with storm-sewer relocation and garage demolition.

The court tower is designed at 16 floors, including two underground floors. At 682,000 square feet, it would house 32 criminal courtrooms; 22 courtrooms would be built immediately; and 10 more would be finished later.

Plans also include a jury-assembly room for the entire criminal-court complex, state-of-the-art technology, and separate waiting rooms for victims and witnesses. The tower would include judges' chambers and restorative-justice services, in which people try to repair the harm caused by crime by working in the community. by azcentral.com

Friday, November 14, 2008

Is the Sixth Circuit Overulling Miranda?

Yesterday, Judge Gilbert Merritt of the U.S. Court of Appeals for the Sixth Circuit wrote quite a fiery dissent in Davie v. Mitchell, suggesting that the Court was effectively overruling Miranda v. Arizona.

The majority in this case is reading the AEDPA statute unlawfully to suspend the writ of habeas corpus in violation of the Suspension Clause of the United States Constitution, Article I, § 9 (“The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it.”). Here, as I shall explain below, the majority is using the AEDPA statute as a license to overrule Miranda v. Arizona and its lineal progeny developed by the Warren-Brennan Court four decades ago to outlaw coerced confessions that abridge the Sixth Amendment right to counsel and the Fifth Amendment right against self-incrimination. The capital defendant invoked both his right to silence and counsel to no avail before he was then enticed to confess.
He concluded his opinion in similar tones:
I . . . dissent from the effort by my colleagues to bury Miranda under a mountain of AEDPA rhetoric. Until the Supreme Court overrules Miranda, we should follow it, no matter how much we prefer to side with the police against the liberties created by the Fifth and Sixth Amendments.
What could have Judge Merritt so upset? The decision by Judge John Rogers, joined by Judge Guy Cole, to deny the habeas petition of Roderick Davie, who was sentenced to death for the murder of two people and the attempted murder of a third. Specifically, Judge Merritt believes Davie's confession was obtained in violation of his Constitutional rights to remain silent and have the assistance of counsel.

Here is how Judge Rogers describes the circumstances surrounding the confession.

At approximately 8:30 a.m., Davie was arrested, read his Miranda rights, and transported to the police station. At approximately 9:05 a.m. at the police station, Detective Hill read Davie his Miranda rights with Lieutenant Carl Blevins present. Davie initialed the rights form but refused to sign the waiver. At that point, the officers made no attempt to interrogate Davie. At approximately 9:59 a.m., Captain Downs and Blevins entered the interrogation room and again advised Davie of his Miranda rights. Davie initially made some comments, he ultimately declined to speak further with the officers, and the interview ceased. At approximately 12:15 p.m., authorities again questioned Davie. Davie provided some information to police, including the fact that he had his gun with him that morning, but he did not confess to the crime. At 12:35 p.m., Davie indicated that he had nothing more to say and the interview ceased. At approximately 2:00 p.m., Davie indicated that he wanted to speak with Detective Vingle. After Vingle advised him of his Miranda rights, Davie confessed. See 686 N.E.2d 245, 256 (Ohio 1997). At no time during the relevant events did Davie ask for a lawyer.
Based upon these facts (discussed in far greater detail in Judge Cole's concurrence), and the degree of deference federal courts are required to show state courts under AEDPA, Judges Rogers and Cole concluded Davie's confession was voluntary, particularly because he initiated the discussion with the police that led to the confession. Indeed, "even under a nondeferential analysis," Judge Rogers wrote, "the police did not violate Davie's constitutional rights under Miranda v. Arizona. Judge Merritt obviously disagreed, in part because Davie never signed a waiver of his rights.

This case strikes me as something of a close call, and is largely dependent upon how one characterizes the repeated interactions between Davie and the police. If one thinks these interactions were relatively benign and non-coercive, the majority is correct. If, on the other hand, the repeated interactions with the police were more menacing — Judge Merritt characterizes each interaction as a "confrontation" — then Davie's confession may have been obtained in violation of Miranda. Given the deferential standard of review under AEDPA, however, this means the majority is probably correct as a matter of law. And although I live in the Sixth Circuit, I am not about to lose sleep about this alleged erosion of Miranda. by Jonathan Alder

Possible Anthrax Sent to Two Mormon Temples

            Envelopes containing a suspicious white powder were mailed to two LDS temples and a Catholic fraternity, prompting a hazardous materials response and a federal investigation into who is behind it. The white powder scares were reported Thursday at Salt Lake City's Temple Square, the LDS Church's temple in Los Angeles and at a printing plant belonging to the Knights of Columbus in New Haven, Conn.

          "Our mailroom employees discovered an envelope that had been mailed to us from California shortly before noon," Pat Korten, vice president of communications for the Knights of Columbus, told the Deseret News late Thursday. "When they opened it some white powder escaped."

          The Church of Jesus Christ of Latter-day Saints and the Knights of Columbus are both major backers of the controversial Proposition 8, which banned same-sex marriage in California. However, the FBI cautioned late Thursday there is no evidence to link the threats to Prop. 8 opponents.

          "We've got to follow the evidence and at this point we have not received anything that would lead us to believe the opponents of Prop. 8 are behind any kind of terroristic activity," FBI Special Agent Juan Becerra said from the agency's Salt Lake City office. "It would be irresponsible to say that at this point."
LDS Church security officials called Salt Lake police and firefighters about 4 p.m. Thursday when an employee in the recorder's office inside the Salt Lake Temple annex opened a manila envelope.

          "When the employee opened it up and looked inside it, there was actually another white envelope inside that had a white powdery substance in it," Salt Lake Fire spokesman Scott Freitag said.
The employee who opened it immediately set the envelope down and called church security officials, who came over wearing a respirator and plastic gloves. They sealed the envelope inside a plastic bag, Freitag said. Three employees in the room at the time were quarantined. Security denied access to the room and shut off the air vents. "They are not complaining of any injury or illness," Freitag said, adding that they did not have to undergo a decontamination process.

          Hazardous materials teams sanitized the substance to ensure it was not a biological agent like anthrax.
On the Main Street plaza, missionaries and other church employees were allowed to come and go. A lone LDS security official stood behind the temple gates. He opened the gate for firefighters, then closed and locked it behind them. A pair of FBI agents left Temple Square with the envelope in a black plastic bag. The envelope was taken to a lab to be tested. "We are working to find out what it is and hopefully it's harmless," Becerra told the Deseret News.

         Firefighters said they did not see anything of a threatening nature with the envelope. Because the annex is a separate building, the temple itself was not evacuated. However, church security did not allow anyone to come or go while hazmat teams were there. A portion of North Temple was also closed to traffic. "At first, we thought it was maybe picketing again," said Poulsen Udall, who was inside the temple at the time. He was referring to mass protests outside Temple Square last week against the LDS Church's backing of Prop. 8. Similar demonstrations were held outside LDS temples in California and New York. "It's a sad thing that all of this is going on," said Udall's wife, Pauline.

           At the LDS Church's temple in Westwood, Calif., the grounds were closed Thursday afternoon after an employee there opened an envelope similar to the one at church headquarters in Salt Lake City. "They received an envelope with a suspicious white powdery substance," Los Angeles police officer Karen Smith told the Deseret News. "It's been cleared and there was no hazardous material." In New Haven, Conn., workers at a printing plant for the Knights of Columbus opened the envelope containing white powder. Hazardous materials teams responded, Korten said, and took it to a lab to be tested. "We do not yet know what was in that envelope," he said. The Knights of Columbus did not know if it had been targeted over Prop. 8. "We've got a great deal of pretty vulgar communication from people who are not happy with our role to help pass Prop. 8," Korten said. "Whether this has any connection or not, we don't know." The LDS Church declined to speculate on whether Prop. 8 had a role in the hazardous materials scares. "We're working with local law enforcement and the FBI," church spokesman Scott Trotter said.

Thursday, November 13, 2008

Supreme Court Justices Hear Arguments in Religious Monument Case

The Supreme Court on Wednesday seemed likely to give its blessing to a Utah town that rejected a small religious sect's request to install a monument on public park land, even though the town accepted a Ten Commandments display in the same park 32 years earlier.

Most justices during oral argument Wednesday seemed to oppose the idea that by accepting one, Pleasant Grove City had to accept the other because of the First Amendment's bar against content-based speech discrimination by the government.

"You have a Statue of Liberty; do we have to have a statue of despotism?" Chief Justice John Roberts Jr. asked. "Or do we have to put any president who wants to be on Mount Rushmore?"

In the same vein, Justice Antonin Scalia wondered aloud if a city that allows any kind of memorial on public land would have to also permit "a monument to chocolate chip cookies" if a resident proposed it.

But during oral arguments in the case Pleasant Grove City, Utah v. Summum, several justices also expressed discontent with the Court's own First Amendment doctrines that make the Utah case so difficult to resolve. The 10th U.S. Circuit Court of Appeals had ruled that the Summum memorial had to be accepted, because the park was a public forum where such discrimination is not allowed under the Court's First Amendment rulings.

Under Court precedent it also appears that the only way a municipality could say yes to the Ten Commandments display and no to the Summum group's "Seven Aphorisms" monument is to define the Ten Commandments memorial as a form of speech by the city government, rather than private religious speech. The Court has ruled that when the government speaks it can pick and choose its messages, adopting some and rejecting others.

Jay Sekulow, chief counsel of the American Center for Law and Justice, arguing for Pleasant Grove City, told the justices that monuments in the city's park "have been selected by the government, are owned by the government, controlled by the government, and are displayed on government property. When the government is speaking, it is free from the traditional free speech constraints of the First Amendment."

Even that rule was questioned. Deputy Solicitor General Daryl Joseffer, arguing in support of the Utah city, said that because of the government speech doctrine, "the Vietnam Veterans Memorial did not open us up to a Viet Cong memorial." In the same way that a library or a museum curator can select some works and not others, so can the government pick which events or beliefs to commemorate.

But Justices Samuel Alito Jr. and John Paul Stevens asked whether that level of government discretion also means that in the case of the Vietnam Veterans memorial, the government could choose to exclude the names of veterans who espoused views the government did not like, or who were homosexuals. With apparent reluctance, Joseffer said those names could be excluded under First Amendment principles, though he said there could be equal protection or due process issues.

Sekulow's insistence on the "government speech" position also prompted some justices to warn him that if in fact the government was speaking when it favored the Ten Commandments over the Summum display, it could be in violation of the establishment clause of the First Amendment, which has been interpreted to bar government endorsement of one religion over another.

"It seems to me you're walking into a trap under the establishment clause," Roberts told Sekulow. "If it's government speech, it may not present a free-speech problem, but what is the government doing speaking, supporting the Ten Commandments?"

Sekulow noted that no establishment clause claim had been raised in Summum's initial challenge to the city's action. But several briefs filed in the case asserted that such a claim was precluded by 10th Circuit precedent.

"This case is an example of the tyranny of labels," said Justice Anthony Kennedy, a potential swing vote in the case. He was objecting to another set of First Amendment principles involved in the case -- whether public park land, usually viewed as the classic public forum where all speakers are allowed, can be categorized as a nonpublic forum when it comes to placement of permanent monuments in limited public spaces.

Pamela Harris, of counsel at O'Melveny & Myers, insisted on behalf of the Summum sect that in a public forum "the government may not favor one message over another."

But when justices asked how cities, practically speaking, could be selective in which memorials it would allow, Harris said there was a simple option. She said governments could formally "adopt any existing monuments as government speech" and announce that, henceforth, "these parks are available only to government displays."

Justices wrestled with Harris' proposal, with Justice Antonin Scalia stating, "Ms. Harris, we need a clear rule here." Scalia suggested it would be impractical for cities to investigate and adopt all the memorials on public lands.

"It may be a very nice world," said Scalia, "but it happens not to be the world under which our Constitution has subjected this country." by law.com

Wednesday, November 12, 2008

Jury Selection Continues in Mormon Missionary Shooting

Jury selection resumed today in the trial of 21-year-old James Boughton, a Deep Creek man accused in the killing of one Mormon missionary and the wounding of another in January 2006.
Chesapeake Circuit Court Judge Randy Smith also denied a defense motion to delay the case.
On Monday, Smith dismissed more than 60 potential jurors for Veterans Day and asked that they return this morning for what is expected to be another full day to determine their qualification to serve. Commonwealth’s Attorney Nancy Parr and Deputy Commonwealth’s Attorney D.J. Hansen could begin the state’s case Thursday morning with opening statements, followed by witnesses.
Boughton, a Camelot resident, is charged with first-degree murder, malicious wounding, attempted malicious wounding and three counts of use of a firearm. The trial is expected to last about two weeks.
On Monday, Boughton pleaded not guilty to killing 21-year-old Morgan W. Young of Bountiful, Utah, and not guilty to wounding Joshua Heidbrink of Greeley, Colo. The two missionaries were walking on Elkhart Street in Deep Creek, proselytizing door-to-door, when they were shot on the night of Jan. 2, 2006.
Boughton also pleaded not guilty to the attempted malicious wounding of Gregory L. Banks Jr., a man who lived in the neighborhood.
Young and Heidbrink, who was 19 at the time, may have unwittingly walked into and witnessed an unfolding crime between other men, according to earlier court testimony. A gunman in the crime, after firing at Banks, approached the two missionaries and shot them both, then fled.
Boughton’s attorney, Andrew Sacks, asked the court on Monday for a trial delay, arguing that he had been “caught totally off guard’’ by evidence the prosecution just turned over to him the day of the trial.
Sacks argued that the prosecution had evidence since February involving a potential witness who has a criminal record but failed to disclose it.
“I’ll have to say I’m not ready to go forward in light of this,’’ Sacks argued Monday.
Judge Smith denied the motion this morning. by The Virginia Pilot