Friday, March 30, 2007

FedEx no substitute for certified mail

Oops, silly me! Thinking Federal Express was just as good as, maybe even better than, registered or certified mail.

Rena Lindevaldsen represents the biological mother in the celebrated custody case of Miller-Jenkins v. Miller-Jenkins. The Virginia Court of Appeals had ruled that Vermont courts have jurisdiction over the custody of the child the mother delivered when she was in a civil union with another woman.

Lindevaldsen knew that she had 30 days from the denial of her petition for a rehearing in the Court of Appeals to file her petition for appeal with the Supreme Court of Virginia. And since the 30th day was a Sunday and the next day was President’s Day, she called the clerk’s office to make sure that mailing the petition on Tuesday would be all right.

But she didn’t think to ask, nor was she told, about any requirement for the method of delivery. Rule 5:5 specifies certified or registered mail, but she sent the petition by Federal Express the evening of the deadline day. When it arrived the next morning, the clerk’s office called to tell her that it was late because it was not sent by registered or certified mail.

Lindevaldsen’s motion asking the court to consider the petition timely filed is pending.

The relief an advisory committee on appellate rules has in mind may be a little late. Last year, the committee recommended proposals adding Federal Express, UPS and other commercial carriers to the list of acceptable forms of delivery. However, approval of the proposals by the Supreme Court probably is many months away.

Unpublished cases track 4CA sentence review

Since federal sentencing guidelines became “advisory,” defense lawyers may be trying to track even unpublished 4th Circuit cases, just to see how a particular federal judge applies the guidelines to a given defendant.

The defendant in U.S. v. Trent will get another shot at sentencing. A Newport News cop pulled Hakim Trent’s purple Ford Escort because Trent was wanted in Portsmouth for attempted capital murder of a police officer. After his state court trial for attempted murder ended in a hung jury, Trent pleaded guilty to a federal charge of being a felon in possession of the .38 caliber revolver found in the Escort.

Eastern District Judge Walter D. Kelley Jr. said Trent’s guideline range of 30 to 37 months in prison was not enough time. Among other factors, Kelley pointed to Trent’s “guns.” But he wasn’t talking about built-up biceps earned with extra gym time. Trent had “pictures of guns tattooed on each forearm.” The judge sentenced Trent to 108 months in prison.

The 4th Circuit vacated Trent's sentence on March 28, saying a lot had happened since the sentencing and the district court should take another look, in light of more recent law on the advisory guidelines.

Jamal Crump is stuck with his sentence. On March 27, the 4th Circuit upheld Western District Judge Samuel G. Wilson’s 320-month sentence for Crump, who pleaded guilty to distributing five or more grams of cocaine base. The guidelines range was 292-360 months, and the 26-year-old Crump, who said he had been dealing since age 17, cited his plea, his kids and his cooperation, in mitigation. The appellate court said in U.S. v. Crump that the sentence, which registered in the bottom half of the guidelines range, was reasonable.

Calling witnesses liars results in contempt citation

Defense attorney Jonathan K. Katz testified that he didn’t mean to ignore a trial judge’s admonition against calling witnesses “liars.” He was just so tired and stressed at the end of a 3 1/2-hour closing argument after eight days of testimony in a federal drug trial that he simply forgot the judge’s reprimand.

U.S. District Judge James P. Jones didn’t buy it.

Jones noted that his Western District colleague, Norman K. Moon, had told during the trial Katz not to use the term again to disparage witnesses after Katz had done so at least 30 times.

Katz refrained until the end of his argument, when he compared himself to Toto in The Wizard of Oz. He had exposed the falsehoods of the government’s witnesses just as the dog had pulled aside the curtain to show the true nature of the wizard, he said. He then yelled loudly and dramatically, “No good liars.”

Moon directed Katz, who is licensed in Virginia and practices out of Silver Spring, Md., to show why he shouldn’t be found in contempt. Jones presided over the show cause hearing after Moon recused himself.

The use of the closing phrase followed a careful and thoughtful analogy to the movie in a normal tone of voice and—notwithstanding Katz’s protestations to the contrary—was “a calculated theatrical stunt on his part,” Jones concluded in In re: Jonathan L. Katz. He ordered Katz to pay a $2,500 fine.

Thursday, March 29, 2007

The latest on therapist testimony in domestic cases

Whether therapist testimony can come into a domestic relations court case – an issue that has pitted lawyers against therapists – appears to be settled enough to allow the Virginia Court of Appeals to shuttle decisions on the subject into its “Unpublished Opinion” file.

Just last December, the appellate court said in a 2-1 decision in Rice v. Rice that no testimony from a therapist can come in without the consent of a parent if the testimony would be adverse to the parent’s legal position. More recently, the family law bar tried to get the Virginia General Assembly to repeal Va. Code § 20-124.3:1, the 2002 statute that generally bars therapist testimony in custody disputes. That effort died in committee.

Earlier this week, a court of appeals panel released an unpublished opinion in Shoemaker v. Karau, affirming a Fairfax Circuit Court decision that excluded testimony from three therapists called by husband to rebut testimony from the wife: the mother’s therapist, the child’s therapist, and a communications therapist for the couple.

In a footnote, the appellate panel referred to legislative inaction on the statute, and treated the Rice decision as settled law.

Wednesday, March 28, 2007

“Ask forgiveness” strategy nixed, building must go

A Norfolk bar owner tried to justify his sans-permit construction of a second-story bar on the Ocean View Fishing Pier by calling it his “office.”

After the pier was destroyed by Hurricane Isabel in 2003, the owner promptly began reconstruction. Along the way, he apparently decided better meant bigger, and added to his commercial pier, the site of the former Harrison’s Fishing Pier, a new bait shop, restrooms, snack bar and recreational room, and a gazebo.

Owner Ronald W. Boone ultimately built a full-service restaurant and bar, with facilities for nightly live bands and other entertainment. When the Virginia Marine Resources Commission asked for more detail on the proposed project, Boone dragged his feet even though construction was underway on the $2.5 million project.

On the theory that it’s better to ask for forgiveness after the fact than to seek permission beforehand, Boone went before the VMRC in January 2006 to seek after-the-fact approval for the second-story bar he built.

Boone told commissioners, “The bar is where I do my paperwork,” and he would “put something in there where I can get up and out of the way of all the fishermen that come in.”

The commissioners approved the structure, but Norfolk Circuit Judge Norman A. Thomas said the second-story bar has to come down.

On March 22, Thomas said in Harrison v. VMRC that the commissioners didn’t even bother to consider the 100 pages of documents submitted by a neighbor who challenged the structure, or the CD she had recorded of the over-the-water noise.

Military service not a reason to go below guidelines

Maybe the 4th Circuit panel thought the appellate court already had given enough guidance on how district judges should sentence criminal defendants in light of U.S. v. Booker.
Or maybe it decided that it’s not a good time to be disparaging military veterans.
In any event, the panel took the “Unpublished” route last week to order a new sentencing hearing for Jose Medina Jr.
U.S. District Judge William D. Quarles Jr. in Baltimore decided that the now-advisory federal sentencing guidelines gave him enough leeway for a nine-level downward departure for Medina’s sentence for possession of child pornography. The guidelines called for a minimum term of 41 months, but Quarles reduced it by 70 percent to 12 months and a day.
The reason: “I start with the understanding that vets should get a break,” Quarles told Medina from the bench. “Your service to your country, your being a fine father … indicates that you are a person who certainly has more good than bad.”
The 4th Circuit panel—Judges J. Harvie Wilkinson III, Paul V. Niemeyer and Karen J. Williams—concluded in their per curiam opinion that Quarles had ignored the court’s earlier decisions that substantial departures from the guidelines must be justified under the factors in U.S.C. § 3553(a).
Quarles failed to follow earlier decisions interpreting Booker that said he should not give “excessive weight” to a single factor, especially one that the guidelines explicitly discourage, the panel said.
Moreover, his conclusion that lowering the sentence would “promote respect for the law” by recognizing good words stands the guidelines on their head. “Instead of sufficiently punishing criminal behavior, and thereby promoting respect for the law, Medina’s sentence demotes the law criminalizing the possession of child pornography in favor of rewarding and encouraging military service,” the panel said.

Kaine: Allow further waivers on court-appointed fees

Gov. Tim Kaine wants the bill allowing judges to waive the fee caps on court-appointed pay to apply in all of Virginia’s trial-level courts.

Compensation for court-appointed lawyers in Virginia ranks dead last in the nation. House Bill 2361, passed by the 2007 General Assembly, could alleviate that problem, at least partially. The bill would permit a judge to waive the cap on a court-appointed attorney’s fees in an adult felony case in circuit court.

But Kaine has proposed an amendment to HB 2361, adding a fee-cap waiver in juvenile court cases and for misdemeanor cases in general district court. The Assembly will consider the amendment when it returns to Richmond for the April 4 veto session.

Tuesday, March 27, 2007

Custody: If Mama ain’t happy, ain’t nobody happy

A papa tried a gender reversal on that truism when he asked a divorce judge to switch custody from the mother to the dad, who wanted to relocate to Florida.

The divorce judge said evidence showed the father’s response to a “strained relationship” with his daughter was to set ever stricter limits on the girl’s behavior and activities.

But all would be well, the father, said, once the family moved to sunny Florida.

“Specifically, the father argues that moving to Florida would cause his stress level to drop, in turn making him a better, more reasonable parent,” the Virginia Court of Appeals wrote in Priest v. Credle.

The trial judge said the kids would be better served by staying in Williamsburg, where they had lived their whole life and where they had friends and extended family. Case affirmed by the appeals court.

Earl Washington case settled?

The final chapter in the 25-year saga that began with the rape and murder of a Culpeper woman may be written soon.

The Richmond Times Dispatch reports that the state has agreed to pay $1.9 million to Earl Washington Jr., the mildly retarded man who falsely confessed to the murder of 19-year-old Rebecca Lynn Williams.

The settlement is still subject to the approval of U.S. District Judge Norman K. Moon. Washington won a $2.25 million jury award last year in federal court in Charlottesville, but the case is on appeal.

By the time of trial, the only defendant left was the estate of Virginia State Police Investigator Curtis Reese Wilmore, who died in 1994. Under the instructions the jury received, it had to believe that Wilmore fabricated Washington’s confession. That was a very bitter pill for the family of Wilmore, who enjoyed a strong reputation for integrity, and his attorney, William G. Broaddus.

Broaddus said Wilmore was the most diligent of all law enforcement officials involved in the investigation in pointing out the inconsistencies between Washington’s “confession” and other evidence that contradicted it. Those inconsistencies and DNA testing that was not available when he was arrested in 1982 eventually led to his exoneration.

In part because of the concerns of Broaddus and Wilmore’s family, the jury verdict will be set aside.

Risk also appeared to drive the settlement. If the verdict had been upheld on appeal, Washington would have been entitled to hundreds of thousands of dollars in attorneys’ fees in addition to the verdict. On the other hand, the state’s risk-management plan has a $2 million cap, and a question remained over whether the state has an obligation to indemnify what the jury found to be the willful misconduct of one of its agents.

Monday, March 26, 2007

Folded-up bill wasn’t origami; search upheld

To an experienced narcotics detective, a dollar bill folded in a certain way can only mean drugs. A defense lawyer tries to get the fact-finder to see other possibilities.

In Snell v. Commonwealth, police found a folded-up dollar bill in the wallet of a runaway kid. Unfolding the bill, which contained cocaine, was an unlawful search, his lawyer claimed. But the Court of Appeals, in an opinion written by Judge D. Arthur Kelsey, upheld the search.

Narcotics detectives are trained to recognize the “peculiar nature” of a tightly folded buck as a “characteristic method of packaging narcotics.”

Kelsey knows the value of a rhetorical device, and that a little hyperbole can go a long way. “In theory,” Kelsey wrote, someone might manipulate a dollar bill in this manner simply for the origami fun of it.”

But as a practical matter, the little bitty bill, together with the boy’s flight and his tossing something from his pocket, allowed the cops to unfold the bill and seize its cocaine contents.

No additional visitation to do more sports

A dad in Fairfax asked a judge to give him more visitation time with his sons. The reason? He wanted to maximize his participation in the social, recreational and sports groups of his sons, ages 9 and 11. The boys play football, baseball, basketball and soccer. Mom expressed concern, testifying that the dad put an “emphasis on sports above all else.” Plus, when he coaches the boys, he yells a lot, she testified. The trial judge, applying the standard, found a change in visitation wasn’t “in the best interests of the children.” The appeals court backed him up in a new decision, Duda v. Hunt.

Saturday, March 24, 2007

Norfolk law firm to move after 40 years

The law firm of Willcox & Savage was one of the first tenants to move into the Bank of America Building when it opened in downtown Norfolk in 1967. But The Virginian-Pilot reports that that the firm’s Norfolk office will be changing addresses in 2010. The firm will move to the Wachovia Center, a $150 million project currently under development next to the MacArthur Center.

Friday, March 23, 2007

In Memoriam: Judge Robert K. Woltz

Judge Robert K. Woltz served on the circuit bench in Winchester for 21 years until his retirement in 1989. He died March 22 at the age of 88. Colleagues and friends told the Winchester Star (registration required) that the judge was a man who was fair and courteous and a man who loved the celebrate the annual Shenandoah Apple Blossom Festival. While some judges liked to move quickly through a trial, Judge Woltz loved the courtroom so much that he didn't mind long case, one friend said.

Wednesday, March 21, 2007

No basketball played on these courts

March Madness is in full swing, and once again many an office worker with a basketball jones will be trying to sneak a peek at his team’s game over the Internet. Unless he works for the federal court system.

Once again our friend and source in the Eastern District (identified here only as “Shallow Throat”) has sent along a warning memo from the court IT guys. Last year, the bandwidth was nearly maxed out, and the no b-ball forces would block any streaming sports site they discovered, a tactic they’re using again this March.

But the IT guys have a graver warning this time around: Watching sports could sacrifice security. During the Super Bowl, hackers managed to get into the live feed from Dolphin Stadium, where the game was played. Anyone who watched the game on the computer got a surprise present: A keylogging program embedded in the feed.

The courts memo concludes with a sniff: “Judiciary personnel are reminded that it is inappropriate to use judiciary resources to the detriment of business processes.” No doubt the IT guys will be pleased when March Madness is over.

Note to employers: Listen to workers’ fears

Employees at a Harrisonburg medical supplies office say they tried to warn their boss about a coworker’s strange and threatening behavior. But because the company, American HomePatient Inc., allegedly turned a deaf ear, it now faces the possibility of punitive damages on a claim for negligent retention.

Last spring, a man named Brewer Hoover Jr. developed a romantic obsession for a woman at the office, Bonnie Sue Crump. Hoover threatened Crump because he believed she was having an extramarital affair with Gary Gibson, another guy in the office. Crump was scared: she kept a cane at her desk for protection, and she wouldn’t visit the restroom alone.

On May 16, 2006, Hoover came to the office in the morning, shot Crump and Gibson, and then killed himself. The victims’ families sued American HomePatient and the estate of the killer. And they’ll be able to go after punitives from the company.

The company tried to get that part of the suit kicked out of court, but Rockingham County Circuit Judge John H. McGrath Jr. held in Crump v. Morris and American HomePatient Inc. that the families had alleged “sufficient facts to support the possibility of a finding of punitive damages by a jury.” Motion denied.

Monday, March 19, 2007

Got a license for that contract?

A Fairfax restaurant hired a rent-a-cop company to provide security services. When the restaurant and the contractor had a dispute over payment for those services, the security company sued. The contractor obtained a default judgment against the restaurant, and instituted garnishment proceedings. A year later, the underlying judgment against the restaurant was vacated.

The contractor sued again, claiming it was entitled to even more than the $16,000-plus it got through garnishing the restaurant’s bank account. The contractor based its claim on theories of unjust enrichment and quantum meruit. Not so fast, said Fairfax Circuit Judge Kathleen A. MacKay.

The contractor, Urban Protective Services, “could not contract to engage in private security services as it was not licensed as required by” Virginia Code § 9.1-139(A), the judge said. The contract was illegal as a matter of law, MacKay said. Fairfax Judge Michael P. McWeeny followed up by granting summary judgment for the restaurant in Urban Protective Services v. Great Latin Restaurants LLC.

Norfolk Circuit Clerk seeks to go paperless

Norfolk Circuit Clerk George Schaefer is overseeing an ambitious project: He wants to make his office paperless. Right now, his staff scans every civil filing that comes in the door. They’ve scanned almost all the land records – which, in an old jurisdiction such as Norfolk, date back to the 1700s. The Virginian-Pilot reports that Schaefer could cut $2 million off the cost of building a new courthouse by reducing the need for storage space.

Saturday, March 17, 2007

Chuck Rosenberg’s new part-time job

Although no one here in the Old Dominion got the ax, the U.S. Attorney firings story now has a local angle: Attorney General Alberto Gonzales yesterday appointed Chuck Rosenberg, the U.S. Attorney in the Eastern District of Virginia, as his interim chief of staff, reports the Richmond Times-Dispatch. Rosenberg, who has past experience in the Justice Department, replaces Kyle Sampson, who quit last Monday amid calls for Gonzales' own resignation. A Republican source said that Rosenberg will stay on the job in Alexandria and the new position is only temporary.

Thursday, March 15, 2007

Experts’ reports

A discovery ruling in a black lung case may have ramifications for protecting work-product and confidential communications in other kinds of litigation.

Elm Grove Coal Company was trying to overturn black lung benefits awarded to a retired miner named Ivan Blake. The two physician experts who supported Blake’s claim admitted that Blake’s lawyer might have had something to do with the substance of their factual reports.

That being the case, Elm Grove may have a right to get a copy of draft reports and communications between Blake’s lawyers and the experts, according to the 4th Circuit in Elm Grove Coal v. Director, OWCP. The mine actually was trying to get at the “trustworthiness and reliability” of the doctor experts, the panel wrote, so the reports and communications were fair game. But the court said the situation might be different when it comes to consulting experts, as opposed to testifying experts.

A law firm's worst nightmare?

U.S. Attorney John Brownlee and Attorney General Bob McDonnell made a joint announcement this morning that may strike fear in just about any law office...or at least send lawyers scurrying to check their internal procedures.

A woman who was a legal secretary in a Louisa County law firm has been indicted in Charlottesville federal court for identity theft, fraud and a number of other crimes.

She stands accused of taking the personal information of one of the firm’s partners – such as his birth date and Social Security number – to open a credit card account, adding herself as an authorized user. She also is charged with opening another account and using credit-line checks to get cash. And then she allegedly used the lawyer’s personal bank account, for which she also had access, to pay off the bills as they came into the office. The estimated total loss: $145,000. The Daily Progress has the report.

Monday, March 12, 2007

In Memoriam: Thomas Mason

Thomas Mason served in the Navy during World War II with a young Bostonian named John F. Kennedy. In 1962, when he was in the White House and there was opening in the U.S. Attorney’s post in Roanoke, Kennedy named his old friend to the job, where Mason served until 1969. Mason died March 8 at the age of 88. Friends recalled that in addition to his legal work, he was an actor who relished the role of Elwood P. Dowd, the guy who can see "Harvey." The Roanoke Times has an appreciation.

Back to the future: Accident reports

Accident report cases were a big deal about eight or 10 years ago, as plaintiffs’ lawyers duked it out with insurance companies over access to accident reports or statements taken by adjusters after an incident. Cases came in frequently and from all over the state. The results went both ways, so everyone could stay tuned and have a rooting interest.

The accident reports issue never made its way to the Supreme Court of Virginia. The cases often are fact-based, turning on whether the report was "prepared in anticipation of litigation." That is, if the carrier was getting ready for suit, the plaintiff couldn't have it. And practically speaking, there usually wasn't enough at stake to merit a trip to the Supremes. But you can believe that both the plaintiff's bar and their defense colleagues were keeping tally and reading the facts of each decision closely.

A new one came down last week. Judge Everett A. Martin Jr., who seemed almost surprised to find an accident report case on his desk, ruled in McKinnon v. Doman that a carrier must fork over the taped statement its adjuster took of its insured driver following a wreck. A bicyclist is claiming that the guy caused her to collide with a truck as she sought to avoid hitting his car.

Martin dusted off the prepared-in-anticipation test. It boiled down to whether the insured had hired a lawyer before talking (he had not) or whether the plaintiff’s lawyer had notified the carrier before the statement was taken. In the McKinnon case, the plaintiff’s lawyer, Buz Gilbert, signed on three days after the tape was made. Motion granted.

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