Civilian’s military detention reargued in 4th Circuit

This morning, the en banc 4th Circuit heard reargument in al-Marri v. Pucciarelli, the much-watched case that could set limits on presidential power to seize and hold civilians in the name of prosecuting the war on terrorism.

On June 11, a 4th Circuit panel granted a writ of habeas corpus to Ali al-Marri, a citizen of Qatar and legal resident of the U.S. who was seized in 2001 in Illinois by civilian authorities. The military took custody of al-Marri, who was initially detained for credit card fraud, after learning about his al-Qaida ties, which included training in a military camp in Afghanistan. Al-Marri filed his habeas petition from a Navy brig in South Carolina.

In the vacated panel decision, Judge Diana Motz and Judge Roger Gregory voted to issue the writ, while U.S. District Judge Henry Hudson dissented. Hudson was on the panel as a visiting district judge, and has no vote in the en banc case. The court’s remaining active judges, except Judge Dennis Shedd, joined Motz and Gregory today to rehear the case.

At regular intervals, the 4th Circuit judges described “what if” scenarios that went straight back to 9/11, questioning the lawyers about the legal framework now in place to stop another attack.

“If 25 or 30 terrorists sneak into this country,” couldn’t they be picked up under this authority, asked Judge Paul Niemeyer.

Jonathan Hafetz, al-Marri’s lawyer, said the president has the authority to repel sudden attacks, but that authority does not allow the indefinite detention of a legal resident alien such as al-Marri. Hafetz maintained that presidential police powers and authority as commander in chief support detention to halt an imminent attack, and that legislation passed since 9/11 – the Authorization for Use of Military Force and the Patriot Act – do not implicitly authorize indefinite detention.

Judge J. Harvie Wilkinson III acknowledged widespread concern that the AUMF “may have authorized some sweeping detention problem. …But people are not being swept off the streets of Omaha.”

“No, it was Peoria,” Motz noted.

Wilkinson continued. “The AUMF has been in force six years, and we’re talking about two individuals, Padilla and al-Marri. Both seem to have indisputable ties to al-Qaida. ... We’re not talking about a dragnet, a sweep, or an indiscriminate round-up. … Why does that kind of carefully targeted response by the government generate all this hoopla?”

Comparing detention of two people to the actions taken against German-Americans after World War I and against Japanese-Americans after World War II, Wilkinson asked if “we’ve lost our sense of perspective.”

“The calculus for determining constitutionality is not whether we have a good king or a bad king,” Gregory observed. “It’s not whether he stays his hand in generosity.”

Arguing for the government, Gregory Garre outlined the “extremely careful” procedures used in al-Marri to determine he was an enemy combatant. Garre said the government agencies on whose intelligence the president drew – the CIA, FBI and DOD – collected classified information and made both individual and collective assessments of the detainee’s status.

Garre also reinforced Wilkinson’s comment that al-Marri had available “channels to challenge a baseless seizure,” and that there were “no roadblocks put in his way to challenge” his transfer to military custody.

Al-Marri “squandered his opportunity to challenge” his custody, Garre said.

Richmond lawyer Margaret Sanner, who attended the argument, said debate among the judges and lawyers was “thoughtful and energetic” because “these judges had all done very serious homework” about the language of the relevant statutes and the precedents.

Sanger serves as counsel to a group of law professors from several Virginia and Ivy League schools that filed an amicus brief on behalf of al-Marri. She pointed particularly to questions by Judge William Traxler toward the close of argument that probed the “indefinite” nature of al-Marri’s detention.

“How does a person who’s held incommunicado challenge” his detention, Traxler asked.

Counterclaim, e-discovery rules proposed

The Supreme Court of Virginia’s advisory committee on rules is looking for comment on a proposal to make counterclaims compulsory and on changes to rules to make e-discovery consistent with changes in federal rules on e-discovery.

Virginia Lawyers Weekly has an article in this week’s issue that is available along with links to detailed reports from the committee on the counterclaim and e-discovery proposals.

Conviction for pit-bull attack affirmed

The conviction of Deanna Hilda Large for involuntary manslaughter because she recklessly allowed dangerous dogs to run at large might have been a first, but the Virginia Court of Appeals saw it as little more than a routine sufficiency-of-the-evidence case.

Large contended that the prosecution failed to prove that she knew that the dogs were dangerous or that she owned two of the three pit bulls that attacked and killed 86-year-old Dorothy Sullivan and her pet Shih Tzu, Buttons, in Spotsylvania County in March 2005.

In the unpublished opinion, Large v. Commonwealth, issued Tuesday, Judge Jean Harrison Clements detailed the testimony of several witnesses who connected the dogs to Large at the time of Sullivan’s death and in earlier attacks on animals and aggressiveness toward people. “[F]from this evidence, the jury could properly conclude that appellant knew or should have known her dogs were dangerous,” Clements wrote.

Appeals court to convene in Fredericksburg

The Virginia Court of Appeals usually hears writs in four different cities across the commonwealth. but it doesn't get to Frederickburg very often.

According to The Free Lance-Star, the intermediate court was last there about 10 years ago.

But the court will be in Fredericksburg tomorrow as part of the reopening of the newly renovated circuit courtroom. About 20 writ panels are scheduled.

Lawyer’s ex-secretary to plead guilty

A lawyer's former secretary, charged with stealing from a dead woman’s estate, is scheduled to plead guilty today under an agreement with federal prosecutors.

Shelia Mae Boone, who worked for Richmond lawyer Harvey Latney Jr., is charged with forging checks totaling more than $272,000, reports the Richmond Times-Dispatch.

Judge who brought pants suit loses job

Roy L. Pearson Jr., who lost his $54 million lawsuit against a D.C. dry cleaning shop over a lost pair of pants, is out of a job. He had been an administrative law judge with the Office of Administrative Hearings, but a panel has voted against reappointing him, reports the Washington Post.

According to the Post, the lawsuit wasn't really a factor in the panel's decision. Members had concerns over Pearson's judgment and temperament.

As a post script to the pants story, the Korean immigrant couple who operated Custom Cleaners in Northeast DC may have won the lawsuit, but they closed that shop last month, citing the stress and strain of dealing with the lawsuit.

Santoro named bankruptcy judge

Frank J. Santoro has been named a bankruptcy judge for the Eastern District of Virginia in Norfolk, to replace David H. Adams who will retire Jan. 2, 2008, upon the completion of his term of appointment.

Santoro (right) is expected to take the bench in March 2008, according to a press release from the Bankruptcy Court. Santoro currently is the managing partner of Marcus, Santoro & Kozak P.C., a Chesapeake law firm. Santoro has served as Standing Chapter 13 Trustee since October 1987 for the Norfolk and Newport News Divisions. He also has served as a Chapter 7 Trustee.

Santoro graduated in 1976 from Allegheny College, and received his law degree in 1979 from the Marshall Wythe School of Law at William & Mary. Bankruptcy judges are appointed by the 4th Circuit U.S. Court of Appeals to serve for a 14-year term.

Woman, girl sue Beach hotel over bedbugs

A woman and her daughter, visiting Virginia Beach from the Midwest, claim they were attacked by bedbugs at the Rodeway Inn, a hotel on Atlantic Avenue.

The Virginian-Pilot reports that the pair have filed a lawsuit, seeking more than $400,000 for bites and other injuries and for damage to their property.

Lone Henry County trafficking trial to begin

Of the 20 people indicted last year in the Henry County drug-trafficking scandal, only one, a former sergeant in the sheriff’s office, sought a jury trial.

That case is scheduled to begin today in Roanoke federal court.

The Roanoke Times reports that nearly four dozen witnesses may testify.

McDonnell takes issue with ABA

Yesterday, the American Bar Association renewed its call for a nationwide moratorium on use of the death penalty; the group issued a report based on several states’ experience, calling the system “deeply flawed.” Virginia was not one of the states studied.

Through a spokesman, Attorney General Bob McDonnell says he disagrees with the ABA study, adding that the death penalty is constitutional and that the system works.

As a practical matter, there has been a general freeze in executions across the country since Sept. 25, when the U.S. Supreme Court agreed to hear the case of a Kentucky man challenging lethal injections as cruel and unusual punishment.

The Richmond Times-Dispatch has the story.

It’s Halloween: Yo mama, mwah ha ha ha!

Just in time for Halloween, a contract and copyright dispute over the rights to a documentary that may be coming soon to a venue near you: Your Mommy Kills Animals.

Plaintiffs Richard Berman and Maura Flynn and Flynn’s business, Speakeasy Video, say they had a deal with defendant Curt Johnson, of Indie Genius Productions, for joint production of the documentary YMKA that was supposed to focus on People for the Ethical Treatment of Animals and the animal rights movement.

Berman, the money man, operated a D.C. public affairs company that opposed PETA and advocated for consumer choice. Flynn had worked with Johnson as a producer on “Michael Moore Hates America.” The “Your Mommy” title purportedly comes from a comic book produced by PETA.

With cameos from stars like Jessica Biel, James Cromwell, and Katherine Heigl, the documentary YMKA displeased the plaintiffs because they said it devoted little screen time to PETA and a lot of screen time to another animal rights group presented as champions of free speech. The plaintiffs won contract damages and copyright protection in Berman v. Johnson.

Flynn conducted interviews and provided contacts for the movie, according to Senior U.S. Judge T.S. Ellis III’s Oct. 19 decision in Berman. Ellis recognized Flynn as a joint author under federal copyright law. Ellis applied a test for joint authorship test used by the 2nd and 7th Circuits, rejecting a test from the 9th Circuit.

A jury awarded Berman of $360,000 in contract damages and $10,000 in compensatory damages. Ellis denied Berman’s post-trial claim to an exclusive right to promote the film, saying he was not entitled to both contract damages and specific performance.

Oliver Hill’s Legacy: The next 100 years

When civil rights giant Oliver W. Hill died Aug. 5 at age 100, the Richmond chapter of the Old Dominion Bar Association already was looking forward to the “Next Hundred Years.”

For several years, the Richmond chapter’s flagship program has been providing scholarships to first-year law students in order to nurture the next generation of civil rights advocates.

The chapter joined with the Richmond Bar Foundation Oct. 24 for its seventh annual Hill-Tucker Scholarship dinner to congratulate the six law students honored with the 2007 scholarship awards.

The top award this year went to Howard University School of Law student Yasmine Gabriel, who was saluted for her work with Hurricane Katrina survivors. William and Mary law students Chanel Gray, Adrienne Sakyi and Chantel Mills also received scholarships, as did Jessica Childress of the University of Virginia and Andria George of Liberty University School of Law.

Richmond lawyer Courtney Malveaux, president of the Richmond chapter, recalled the days when Oliver Hill “walked among us,” observing that Mr. Hill “did not dwell on what he endured in the past, but on our future.” He balanced his somber recollection with a lighter note, saying prior to the dinner that a year ago this time, he was just collecting a bourbon on the rocks for Mr. Hill.

Henry Marsh told the audience of lawyers, judges and community and business leaders that he was “the luckiest person in this room, perhaps in this whole state, having had the good fortune” of practicing law with both Mr. Hill and Samuel W. Tucker at the Richmond firm of Hill, Tucker and Marsh.

Marsh said he witnessed thousands of lawyers give Mr. Hill a prolonged standing ovation in response to rousing remarks Mr. Hill delivered when he accepted an award fro m the American Bar Association. Marsh heard nearby comments that hailed Mr. Hill: “Look at that, he’s 95 years old, blind, and he’s still fighting.”

Keynote speaker Viola O. Baskerville, Secretary of Administration for the Commonwealth of Virginia, told the scholarship recipients that it’s “their legacy to pick up this fight,” and build on the heritage of students who staged sit-ins and rode freedom buses. “The activism has not changed, only the medium has changed,” she said.

Malveaux said that with the support of its numerous sponsors, the group plans to start an endowment to fund future scholarships.

“The mission is not nearly complete, but that is something he left in our hands,” Malveaux said.

4th Circuit not up for ‘reading tea leaves’

Maybe a defendant convicted of drug conspiracy deserves a break because most of his crack distribution occurred during the three-year period before he turned 19.

But what if the defendant, “K-Smooth,” was one of the few members of the 30-odd defendants from Petersburg’s “Third Ward Gang” to go to trial in Richmond federal district court? Criminal defendants usually get a break for taking a plea. Maybe Batts’s decision to go to trial should offset his youth as a basis for mercy.

Because the 4th U.S. Circuit Court of Appeals couldn’t get a clear picture of why Kevin Batts was sentenced to only 120 months in prison – a 54-percent deviation from the advisory federal sentencing guidelines range – it vacated Batts’s sentence for RICO and drug conspiracy offenses and sent the case by to Chief U.S. District Judge James R. Spencer.

In U.S. v. Batts, released yesterday, the appellate court said it had “never upheld such a significant variance,” and would only do so if presented with a sufficient explanation.

When he imposed the 120-month mandatory minimum sentence, Spencer said the sentence was “in line with” the defendant’s argument that the court should focus on Batts’s post-majority criminal conduct.

The district judge said he had “thought about this at great length before” and “considered all of the facts and circumstances.”

The 4th Circuit said the sentence was unreasonable.

It wasn’t clear whether the district court considered the need to avoid unwanted sentence disparities, the appellate panel said, especially in light of the fact that Batts’s sentence was lower than the sentences imposed on most of the gang members who pleaded guilty.

The district court also failed to give complete consideration to the defendant’s history, specifically, his age during the conspiracies.

“To the extent that much of Batts’s drug activity occurred while he was a minor, a variance of some sort might be considered,” the appellate court wrotein its unpublished opinion. “On the other hand, the fact that Batts continued the same illegal activity after he had reached the age of majority and spent time in juvenile detention may indicate that he should not be afforded such a significant break, since it is not clear that his coming of age has changed his unlawful conduct."

“The task of reviewing a sentence’s reasonableness should not be akin to reading tea leaves,” the court said. Given the “significant deviation” in Batts, the need for an adequate explanation “is particularly important.”

You can sit down now, counsel

The Virginia Court of Appeals did some line-drawing yesterday, and let criminal defense lawyers know there is at least one case that should not have drawn a Rule 5A:18 argument.

Defense lawyers know the power of the contemporaneous objection rule, and how carefully the appellate court scrutinizes the record to make sure trial counsel hit all the right marks to give the trial judge the chance to cure any alleged errors down below.

During trial, lawyers sometimes feel like they’re walking a tightrope, trying to object enough to preserve an issue for appeal, but not object so much they irritate the trial judge.

The lawyer in Byrd v. Commonwealth got it just right.

Bobby Byrd wanted a Portsmouth Circuit judge to suppress heroin found in his pocket when Byrd was picked up on an informant’s tip. The judge admitted the heroin and found Byrd guilty.

On appeal, the commonwealth argued Byrd’s claim was barred because he “failed to object with the requisite level of specificity,” wrote Judge Robert J. Humphreys for the appeals court.

Humphreys, a former prosecutor, took a look at how much objecting was enough. Humphreys said Byrd’s only argument on appeal was that the confidential informant’s tip did not establish probable cause to arrest him.

“Byrd went to great lengths to bring this argument to the attention of the trial court,” through a pretrial motion to suppress, argument at the suppression hearing and through a continuing objection at trial, Humphreys wrote.

In fact, the trial court said enough already.

The trial judge acknowledged Byrd’s “continuing objection,” saying he would “consider your objection made. You’re not waiving it when you don’t make it again.”

“[I]t could hardly be any clearer that Byrd properly preserved this issue for appeal,” Humphreys said.

Maybe the commonwealth fought so hard on the waiver because they suspected the search was shaky. The unanimous panel said there was no probable cause and reversed Byrd’s heroin conviction.

Benchmarks for the board room: corporate counsel metrics

“How’m I doing?” was former New York City Mayor Ed Koch’s trademark greeting to his constituents.

Lawyers may ask themselves the same question.

Lawyers who labor in a law firm often use the almighty billable hour as their primary measure of productivity.

But an attorney who works for a corporation may come at that billable-hour standard from the opposite direction. For the in-house counsel who hires and manages an outside law firm, the less time that law firm bills, the more readily the in-house lawyer can demonstrate her productivity.

A group of corporate lawyers is attempting to develop their own metrics, or performance standards, for corporate legal departments. Two of these lawyers described their “Open Legal Standards Initiative” yesterday to the Virginia Bar Association’s Corporate Counsel Fall Forum in Richmond.

Steve Lauer said he and Nena Wong co-founded OLSI “to help the in-house profession improve its business practices” and to develop methodology that lets corporate lawyers document performance in order to make comparisons within the legal field and within a particular industry.

In-house lawyers may know “they’re winning cases and handling transactions,” but their corporate bosses want to know “how much it costs and how long does it take?” Lauer said.

OLSI is a voluntary organization dedicated to developing uniform approaches to measure how law departments function, with the ultimate goal of using the data to improve performance.

Gathering good data can help lawyers learn “what can you do to reduce the number of lawsuits against your company, what can you do to reduce the cycle time for drafting contracts,” Wong said. And maybe, as a byproduct, you can “decrease the number of lawyer jokes” you have to hear from the non-legal types in the company.

The OLSI Web site identifies the top 25 “key performance indicators” that help measure cost effectiveness, staff productivity, process efficiency and cycle time. Tracking in-house time shouldn’t be the record-keeping burden that drove many lawyers from firm practice into corporate legal departments. Once law departments establish the right record-keeping habits, all they have to do is “rinse and repeat,” Wong said.

In Memoriam: Neill H. Alford Jr.

Professor Neill H. Alford Jr., who taught law at the University of Virginia law school for 41 years, has died at the age of 88.

The Richmond Times-Dispatch has an appreciation.

Norfolk paper: Judge has been barred from court

The Virginian-Pilot is reporting that Norfolk Circuit Judge Alfred M. Tripp has been barred from court.

The paper’s source did not state the reasons for the action. The judge’s docket was transferred to another judge Friday and a substitute judge was scheduled to sit today.

The source spoke anonymously due to the secret nature of proceedings of the Judicial Inquiry & Review Commission, the paper said.

Protecting the public

The Virginia State Bar Council took decidedly different positions Friday on two issues described as public protection measures.

One was a proposal to require insurance companies to notify claimants when they mail settlement checks to the claimants’ attorneys. That measure stemmed from the theft of the proceeds of such checks by a small percentage of attorneys. A study of lawyer disciplinary cases showed that lawyers had taken $247,000 in that manner over a four-year period.

The list of objections to the proposal, recited by Virginia Trial Lawyers Association President Chuck Zauzig and plaintiff’s attorneys on the council, was long: interference with the attorney-client privilege, the possibility of improper conduct by insurance companies, fear of the claimant that family members or neighbors would learn about the money, and a bad message about the integrity of the plaintiff’s bar. The proposal “creates a presumption that plaintiff’s lawyers are crooks,” said executive committee member Irv Blank.

Arguments that the notice would alert the client to possible dishonesty by the lawyer or prevent serial thefts by the lawyer were not nearly enough to carry the day. The measure failed by a 54-7 vote.

The second issue was whether the VSB should continue to explore requiring all lawyers in private practice who routinely represent public clients to carry malpractice insurance. Almost 90 percent of such lawyers do so now. Darrell Tillar Mason, chair of the Special Committee on Lawyer Malpractice, said support from the proposal turns on whether one views the issue from a “data driven” or “principle driven” perspective. Evidence of a serious problem for lawyers or the clients is slim, she acknowledged, but some lawyers believe that insurance against their negligence is part of their fiduciary duty to their clients.

Council voted 38-21 to have the committee develop a proposal or proposals for a mandatory malpractice program.

July bar exam results are in

The results for the July 2007 Virginia Bar Examination are in.

Click on the words above and you'll head to a list of the 1,081 applicants who were successful in Roanoke last summer. A total of 1,502 people sat for the exam. Do the math and that makes a pass rate of 71.9 percent.

Congratulations and cheers!

E-discovery one year later, the view from Richmond

Read the 2006 federal rules on e-discovery, but don’t ignore the old case law, a Richmond federal district judge told lawyers yesterday at a Richmond-area bench-bar conference.

The changes to Federal Rules 26, 33, 34 and 37 didn’t develop in a vacuum, and the case law framework for resolving discovery disputes is still relevant, regardless of changes in how information is stored and retrieved.

Senior U.S. District Judge Robert E. Payne said when lawyers come to his court for a “meet and confer” under Fed. R. Civ. P. 26(f), they fall into two categories: those who already have solved their discovery problems, including retrieval of ESI, or electronically stored information, and “those who don’t have any earthly idea what you’re talking about.”

Asked how he deals with the latter group, Payne joked, “I’ve got a taser gun.”

The e-discovery rules have had a salutary effect, according to Frank Telegadas, in-house counsel for Circuit City, because the “publicity around the rules got corporate America to understand this is here to stay … and resources need to be freed up to deal with” e-discovery issues.

Richmond lawyer John Craddock said it’s often easier to hash out discovery issues when it’s one corporate client against another. The parties’ common aim to survive, as in the old cold war doctrine of “mutually assured destruction,” encourages cooperation.

Or maybe it’s more like the Willie Nelson song: “You show me yours and I’ll show you mine.”

But pit a little-guy plaintiff against a big, bad corporation and the discovery contest may feel pretty one-sided. A company can’t always stave off a plaintiff determined to find a smoking gun.

Payne said the new rules “are part of the body of rules that’s been around since 1934, and individual plaintiffs and corporations have always said it’s going to cost a lot of money” to produce requested documents.

Before Payne went on the bench, he helped McGuire Woods handle uranium cases for Westinghouse, who had to retrieve old documents from storage in salt mines.

“Judges have been hearing this for years,” Payne said. “They don’t pay any more attention now than earlier. Pleas about the fact that it costs a lot of money fall fairly much on deaf ears because they sound exactly like the arguments I used to make years ago to try and save my clients money.”

“A corporation that chose to save money by putting their data in electronic form is not going to be heard to argue it costs too much to retrieve,” if the information is pertinent, Payne said.

Taser news: Evolution of a brand name?

Speaking of tasers, more people are speaking of tasers these days.

Virginia Lawyers Weekly reports three taser-related cases in next week’s issue, which doubles the number of “taser” cases reported in prior years since 1993.

A Richmond federal district judge said in Keller v. Town of Colonial Beach (VLW 007-3-410)that a man who alleged injury from a police officer’s use of a Taser X26 to subdue the apparently deranged man after he emerged from the Potomac River could sue the officer, but not the police chief or the town.

And in Crihfield v. City of Danville Police Dep’t, a Danville federal court refused to dismiss an excessive force case filed by two men against two city police officers who allegedly hit them multiple times with a taser gun after arresting them at a convenience store for possible intoxication.

In another case from Danville Circuit Court, the Virginia Court of Appeals upheld a cocaine conviction in a case in which the defendant said the officer had illegally seized the defendant by brandishing a taser gun as the defendant walked away from a “known drug house” after spotting the cop.

Increased use of tasers by police actually has been credited with leading to lower rates of injury and death among suspects, but their use is controversial.

Maybe the increased use of “taser” is the result of an inevitable evolution in branding, a switch from the generic “stun gun” to “taser” as a lower-case verb form, like “xerox.”

After Andrew Meyer yelled, “Don’t tase me, bro” before he was “escorted” from a University of Florida lecture hall for haranguing Senator John Kerry, Wired reported that the phrase “hovered between 9th and 11th place as the most searched for term on Google two days later.”

On another note in taser-related news, a study released Oct. 8 by the Wake Forest University School of Medicine, which included data from Inova Fairfax Hospital, concluded that in nearly 1,000 cases of taser use, 99.7 per cent of the subjects had either no injuries or mild injuries such as scrapes and bruises.

Reed Smith to merge with Chinese firm

Reed Smith LLP will establish a presence in China when it merges with a Hong Kong firm on Jan. 1.

The partners of Richards Butler Hong Kong will become partners in Reed Smith, an international law firm originally founded in Pennsylvania. The firm has 77 lawyers in three Virginia offices, located in Falls Church, Richmond and Leesburg.

The Richards firm has more than 110 lawyers in Hong Kong and has an office in Beijing. There are plans to establish a practice in Shanghai.

Goodwyn takes oath as a justice

Supreme Court Justice S. Bernard Goodwyn was sworn in yesterday at an investiture ceremony in downtown Richmond, reports The Associated Press.

Law profs: Death penalty debate not resolved soon

Three death-penalty law experts met yesterday at the University of Richmond law school. Even with the U.S. Supreme Court poised to rule soon on whether lethal injection is cruel and unusual punishment, they agreed the debate over the death penalty won’t be over any time in the near future. The Richmond Times-Dispatch has the story.

Valpo law prof to decide fate of Vick’s dogs

A Valparaiso University law professor who is an expert in animal control law has been selected to decide what to do with the 48 pit bulls seized at Michael Vick’s Surry County property. The Daily Press has the story.

Group files suit to stop Interstate 73

An environmental activist group has filed a federal lawsuit, seeking to stop construction of Interstate 73, a proposed highway from the Roanoke Valley to the North Carolina state line. But the Roanoke Times reports that a group called Virginians for Appropriate Roads filed suit in Richmond, hoping to halt funding for the $4 billion project.

Judges usually approve negotiated plea deals

When a Newport News circuit judge recently approved a plea deal that suspended all 45 years of a pedophile’s prison term, The Daily Press saw its online message board light up with angry comments.

But the paper talked to Peninsula prosecutors and defense lawyers and found that judges usually trust the lawyers to get it right and generally will approve plea deals when presented.

‘Abusive driver’ fees could be campaign issue yet

The furor over Virginia’s new scheme of civil remedial fees aimed at “abusive drivers” was loud during the summer, and some politicians, mostly Republicans concerned about keeping their majority, worried the fees would be a campaign issue this fall.

The hubbub has died down, but some in the GOP worry about a last-minute push in tight races. The Richmond Times-Dispatch has the story.

Court dismisses fraud suit based on SOX Certifications

An Alexandria federal district court has dismissed a securities fraud suit against two former executives who allegedly published false financial information despite knowing about their company’s “lax internal controls” and “dysfunctional accounting systems.”

A class of disappointed investors sued BearingPoint Inc., formerly KPMG Consulting LLC, its former president and CEO Randolph Blazer and former vice president and CFO Robert Falcone.

The plaintiffs claimed the former executives’ Sarbanes-Oxley Certifications showed they either knew or should have known about widespread accounting errors.

U.S. District Judge Liam O’Grady said in In re BearingPoint Inc. Securities Litigation (VLW 007-3-392), that no court in the 4th Circuit has yet addressed whether SOX Certifications can show scienter for a § 10(b) or Rule 10b-5 violation.

But district courts elsewhere have followed an 11th Circuit decision and given little weight to SOX Certifications absent “glaring accounting irregularities” or other “red flags” supporting an inference of severe recklessness or intent, O’Grady said.

BearingPoint apparently got into trouble after it gobbled up more than 30 consulting companies in Europe, Asia and South America, starting in late 2001. It developed a new financial accounting system, “OneGlobe,” to bring all North American operations under the same system.

BearingPoint encountered problems and made errors when it attempted to integrate the accounting systems of its foreign acquisitions into its overall operations.

The investors said that BearingPoint defrauded the market with misrepresentations and omissions about the timing and size of a $397 million goodwill impairment charge precipitated largely by a reduction in the value of recently acquired companies.

But the plaintiffs’ complaint foundered on what the defendant executives knew, and when they knew it.

O’Grady wrote that the “fact that a corporate officer certified financial statements later proved to be erroneous does not, in and of itself, give rise to an inference of scienter. Rather, there must be other alleged facts establishing that the signor recklessly ignored ‘red flags’ that the attested-to financial statements contained material falsities.”

Wipes suit wiped out

U.S. Magistrate Judge Michael F. Urbanski yesterday dismissed a $2 million lawsuit filed by a Lynchburg woman claiming that the company that makes pre-moistened Pledge and Windex wipes stole her idea.

The News & Advance has the follow-up story.

Goodwyn is newest justice

Chesapeake Circuit Judge S. Bernard Goodwyn was picking up his 12-year-old daughter from dance class last week when Gov. Tim Kaine called his house. His wife quickly relayed a message, and the governor told Goodwyn that he was going to be appointed to the Supreme Court.

He is the first justice from Hampton Roads in 49 years. The Virginian-Pilot has the story of yesterday's press conference and appointment.

Defense attorney raises money for prosecutor

Richmond criminal defense lawyer Craig Cooley is raising funds to help Caroline County Commonwealth’s Attorney Harvey Latney Jr. repay $300,000 that allegedly was stolen from a client by Latney’s former secretary. The Richmond Times-Dispatch has details.

Cleaning-wipes suit could be resolved today

A Lynchburg woman says that she came up with the idea for pre-moistened cleaning wipes eight years ago and tried to sell the idea to S.C. Johnson & Son Inc., makers of Windex and Pledge.

The lawyer for the company calls her claim “garbage” and “frivolous.”

A U.S. magistrate judge will hold a hearing on a motion to dismiss this afternoon, reports The News & Advance.

Kaine to tap Goodwyn for high court

Gov. Tim Kaine will appoint Chesapeake Circuit Judge S. Bernard Goodwyn to the Supreme Court of Virginia, according to the Associated Press.

The governor will hold a news conference this morning to introduce his choice.

Goodwyn, 46, will succeed Justice Elizabeth B. Lacy, who retired in August. Goodwyn will be the second African-American justice on the current court, joining Chief Justice Leroy Rountree Hassell Sr.

Legal Aid of Eastern Virginia celebrates 40

The Legal Aid Society of Eastern Virginia will be marking its 40th anniversary this week, reports The Virginian-Pilot. Judge Roger L. Gregory of the 4th U.S. Circuit Court of Appeals will be the speaker at Friday’s banquet.

Congress has questions about Gen Re, ROA

The House Judiciary Committee has asked Paul J. McNulty what he knows about why the criminal investigation of General Reinsurance and an officer at Reciprocal of America were dropped earlier this year.

McNulty was the U.S. attorney for the Eastern District of Virginia during much of the investigation and had been elevated to deputy attorney general in the U.S. before the investigation was dropped. He is now a partner in the Washington office of Baker & McKenzie.

Corporate Crime Reporter has a long article about the investigation with a link to the letter the subcommittee sent McNulty in July. McNulty has asked for an extension of time to reply to the letter, which also includes questions about what Democrats allege to be political reasons for replacing some U.S. attorneys.

The CCR article credits Virginia Lawyers Weekly with publishing the first article about the apparent demise of the investigation.

Virginia AG gets national pub

Attorney General Bob McDonnell has recived national exposure for his program to keep children safe from Internet predators.

The spot broadcast on the CBS Evening News and on the CBS Morning Show features Assistant Attorney General Rusty McGuire talking to a eighth-grade class about the danger of too much information on such social networking sites as myspace.com.

You can watch the spot, athough you'll have to endure a 20- or 30-second commercial that proceeds it.