Judicial Lottery Outcome Determinative in Criminal Cases?

aclake@gwllawfirm.com (Anthony Lake) — Thu, 15 Mar 2012 19:34:39 GMT

A piece on OpEdNews yesterday asks the question why Milton McGregor and the other defendants in the Victoryland gambling prosecution found not guilty while former Alabama Governor Don Siegelman and former CEO Richard Scrushy convicted in the HealthSouth prosecution several years ago? The piece submits that the difference in outcomes may be due to the judicial lottery: the Judge in the HealthSouth case was U.S. District Judge Mark Fuller, a George W. Bush appointee with a few years on the bench, while McGregor and his co-defendants were tried before U.S. District Judge Myron Thompson, a Jimmy Carter appointee with 32 years on the bench. It suggests that judges who have served longer have greater respect for ethics and the law.

Image source: startupmeme.com/federal-court-awards-3315-million-to-verizon-communications/

This is not always the case, however. Judges are individuals in possession of myriad different perspectives, as with all individuals. While a judge's background and experience informs, to some extent, his or her view of the matters before them and their rulings, political appointments and time on the bench do not necessarily determine a judge's point of view. In our experience, some very conservative and, one would imagine, pro-goverment judges have kept an open mind towards the evidence and have ruled in favor of the defense. In actuality, there are infinite variables which impact the outcome in a case, most critically the allegations and the evidence itself. And, in most cases, at the end of the day, the outcome is in the hands of the jury.

The piece also suggests jury instructions as another reason for the difference in the results between the VictoryLand and HealthSouth cases. It points out the fact that courts can tailor jury instructions to favor the prosecution over the defense. While in most cases the courts give uniform "pattern" instructions which are adopted by the Court of Appeals, this point has some merit. In many cases the defense presents a proposed theory of the defense jury charge, which are typically objected to by the government, and which courts are often loathe to give. However, a defendant possesses a right under the Sixth Amendment to the Constitution to present his or her defense.

Finally, although acknowledging the many differences between the two cases, the writer complains about the different outcomes in the HealthSouth and VictoryLand cases as "deeply disturbing," citing the Equal Protection Clause. The piece contends that McGregor and company should have been "more guilty" of the charged offenses than were Siegelman and Scrushy. Putting aside the fact that this view assumes the sufficiency and credibility of the prosecution's alleged criminal evidence in each case, equal protection does not require a uniform outcome in similar cases. If it did, it would effectively abolish the constitutional right to trial by jury in all criminal cases and to have guilt or innocence decided by a jury of ones peers. Equal protection means that persons should enjoy the same protection under laws as other, similar persons. In most cases, it does not curb the effect of penal statutes, which require proof beyond a reasonable doubt to enforce against the individual. Giving credit where it is due, the attorneys in the Victoryland prosecution simply put up a great defense effort. After being placed in jeopardy and running the gauntlet of a Federal criminal trial, the defendants and their counsel are entitled to enjoy their victory.

Hiding in Plain Sight

Wed, 15 Feb 2012 01:30:41 GMT

As featured in Rick Reilly's column on ESPN.com, how could everybody have missed Jeremy Lin? Stanford, Cal? The Golden State Warriors? Houston? Heck, his high school team was in Palo Alto and won the state championship.

Might I suggest modesty. Don King, notorious boxing celebrity and promoter once opined: "I am the best promoter in the world, and I say that humbly." Dizzy Dean, once said, "It ain't braggin' if you can do it." Heck, I went to a high school game where James Harden's mom wore a jacket proclaiming, "James Harden's mom."

Likewise, go to the Yellow Pages and see how many lawyers advertise their greatness. And then there are the ones who emerge over time.

I once had a case against a Palm Springs lawyer known by professionals as the "Desert Fox." He was over 40 before he tried his first case, and he tried that one because no one else would try it for him. Seven figures later..... Sometimes it just takes awhile for greatness to emerge.

LawPivot: Another Legal Advice Web Site

rich@granat.com (Richard Granat) — Sat, 29 Jan 2011 00:04:02 GMT

Another interesting start-up has emerged out of Silicon Valley to provide crowdsourced legal advice to other start-ups for free.

Vertical Q&A web sites seems to be the next new thing among venture capital investors. Even Facebook rolled out this year a crowd-sourced Q&A service.

LawPivot, a legal Q&A web site founded in 2009, hopes to fill a niche by providing legal advice to the founders of start-up and early stage high-tech companies based in California at a legal fee they can afford -- FREE. Legal advice is provided by an experienced network of high-priced business law attorneys, recruited from the top 200 hundred or so law firms, who hope to pick up new clients by entering into discussions by providing free legal advice services to start-up companies.

Free legal advice or the “free consult” has been employed by lawyers for years, pre-Internet, as a tried and true marketing strategy for acquiring new clients. Now many lawyers are beginning to offer free legal advice online from their web sites directly. See for example, VirtualEsq.Com . By next year there will be hundreds of these free legal advice services offered directly by lawyers from their web sites as the virtual law firm movement begins to scale.

However, free legal advice from an individual law firm's web site, is not the same thing as a vertical web site that aggregates answers from many lawyers, giving consumers a wider variety of responses to their particular situation.

Free legal advice online is not a completely new idea. FreeAdvice has been doing it for years, and consumers can get answers to their basic legal questions from sites such as AVVO, RocketLawyer, and JustAnswer. What is new, is that LawPivot provides through its network of lawyers “real” legal advice that applies to the client’s particular situation, as distinguished from merely legal information. And this advice is reputedly to be "high quality" given the stature of the lawyers recruited to the LawPivot network.

However, genuine legal advice, [as distinguished from “legal advice” that is characterized as “legal information” ], like any legal service, has to be delivered in an ethically compliant way requiring that the client’s information be kept confidential, that an attorney/client relationship be established, and that the attorney providing the legal advice be a member of the bar within the jurisdiction where the client is located. Presumably LawPivot is addressing these issues. The LawPivot service is presently limited to California, but the company, according to its representations, plans to expand nationwide.

Although the company recently raised $600,000 from Google Ventures, the venture capital arm of Google, after a $400,0000 round from from a group of angel investors, it will be interesting to see how or whether it survives. At this point, neither the clients are charged for legal advice, nor are the participating attorneys charged an advertising fee. So there is no revenue, and apparently no business model. However, I doubt that the investors thought they were making charitable contributions, so there must be a business model lurking in the background somewhere?

Unfortunately, the only business model that is ethically compliant in the US, is one where the participating lawyers pay an advertising fee to play (get listed) and get exposure. Splitting legal advice fees between a law firm and a non-law firm , is a big “No, No” and an ethical prohibition that exposes the participating attorneys to bar sanctions which could lead to disbarment. Perhaps because Google is now involved as a major backer of LawPivot , and the company is planning to move to the GooglePlex campus start-up incubator, "they can do no wrong.!"

Many other Western common law jurisdictions, like the United Kingdom, have abolished the division of fees, but the rules against splitting fees with non-lawyers remains sacrosanct in the US, on the theory that splitting fees would compromise the independent judgment of the attorney. However, in the UK, lawyers are permitted to work for a profit-making company and provide legal advice directly to consumers, and no one seems to be complaining about compromised judgment. [ See: FirstAssist in the UK for an example ].

Charging clients an administrative fee to “use” the web site, as an alternative revenue source, has been tried before in an earlier Internet era, and it failed then. [ e.g. AmeriCounsel ]. I doubt that this model will work today when consumers are expecting everything on the web to be for free.

I think it is a good sign that innovation is happening in the legal industry, and that private capital is finally looking for a way to get a return by investing in the delivery of legal services. [See: Total Attorneys Receives Multi-Million Dollar Investment ].

I would like to see companies like LawPivot thrive, but at this point I don’t see the juice. Are advertising revenues sufficient to make this venture sustainable, or has LawPivot figured out another legitimate source of revenue that doesn't violate US ethical prohibitions? Only time will tell.

Paddle the Don

Fri, 30 Apr 2010 09:00:00 GMT

Hull and Hull LLP is the proud sponsor of a corporate team in this years’ Paddle the Don event.

This annual event, put on by Toronto and Region Conservation, allows canoeists to paddle down the Don River, from Eglinton to the mouth of Lake Ontario.

In addition to allowing us to enjoy a day in nature within the city, the event serves as a fundraiser for Don River regeneration projects.

The river is making a magnificent recovery, and is not the Don River that it was in the 1970’s. It is becoming more like the Don River as it was in the 1870’s. In my neighbourhood, near a tributary near Finch Avenue, trout have been spotted. Beaver are returning to the area, and deer have been seen on many occasions.

For more information on the Paddle the Don event, visit Paddle the Don.

Unfortunately, the event is fully booked for this year. However, it still is possible to contribute. To sponsor our team, visit Paddle the Don - 2010 : Volunteer Page

Thank you.

Paul Trudelle

Policyholder Advocate Matt Gaetz Picks Up Endorsement From Jeb Bush

Mon, 08 Mar 2010 18:31:57 GMT

Matt Gaetz is running for a seat in the Florida House of Representatives. His chances of getting elected have become better since former Governor Jeb Bush provided his endorsement to Gaetz. Here is Gaetz commenting on the endorsement:

Matt Gaetz and his father, Senator Don Gaetz, are proof that conservative elected officials can also support strong pro-policyholder legislation and stand up to the insurance companies that do not want to be held accountable to their customers and the law. We held a campaign fundraiser for Matt last September and noted his active support for policyholders in Matt Gaetz is a Policyholder's Advocate Running for Public Office.

Senator Don Gaetz filed three very pro-consumer bills last year.

SB 964 - Insurer has a fiduciary duty to treat those it insures in good faith
SB 960 - Civil Remedy against Citizens Property Insurance Corporation
SB 962 - Requiring insurance companies to adopt and implement standards to follow when adjusting claims to reach a proper settlement

The Special Election will take place on March 23. We hope Matt will be able to take part in the debate and advocate for policyholders before this legislative session is over.

Couple didn't know what they were eating

casey.jo.jacob@gmail.com (Casey Jacob) — Wed, 13 May 2009 16:16:59 GMT

A 47-year-old Israeli woman crawled feebly to the front door to call for help from a neighbor before passing out. Her partner, also 47, had already fallen unconscious.

FOX News reports that the couple began to feel dizzy after eating a meal of fried blowfish, and could barely breathe when the ambulance arrived.

“From what they have been able to tell us,” Rambam Hospital spokesman David Ratner said, “a neighbor gave them the fish as a gift. They didn’t know what it was; they fried it up for dinner and ate it.“

The couple was unaware of the neurotoxins contained in the skin and certain internal organs of blowfish that are highly toxic to humans. Contacting or ingesting these toxins leads to muscle paralysis and can result in an excruciatingly slow and painful death.

Marine biologist Dr. Nadav Shashar said, though the fish is the second most poisonous vertebrae in the world, it is considered a delicacy in Japan and Korea, "but they know how to prepare it."

Dr. Shashar concluded by saying, “The basic rule of thumb is simple: Don’t stick things in your mouth if you don’t know what they are.”

Don't eat poop or blowfish poison.

Don't eat poop cupcakes and more

dpowell@ksu.edu (Doug Powell) — Sun, 10 May 2009 04:56:26 GMT

Things are winding down at Kansas State University for the year – at least on the teaching side. In the past, Amy and I have planned some exotic trip to France or Canada to get out of Kansas for the summer, but this year, we’re staying fairly put, with baby Sorenne. Maybe she’ll get acclimated to the heat.

On Friday, for the second year now, Amy hosted the Modern Languages departmental end-of-semester soiree, where all the language professors get together in a Tower of Babel sorta thing. Good fun, good food. And in a food porn moment, Katie made language-based cupcakes. What’s your favorite?

(Oh, and the A-Goo cupcake was in honor of baby Sorenne, cause she says that a lot.)

Lessons from Wales; fallacy of food safety inspections

dpowell@ksu.edu (Doug Powell) — Thu, 26 Mar 2009 13:10:35 GMT

Do more inspectors make food safer?

No.

The latest evidence is from Professor Hugh Pennington, who concluded in a report last week that serious failings at every step in the food chain allowed butcher William Tudor to start the 2005 E. coli O157 outbreak, and that while the responsibility for the outbreak, “falls squarely on the shoulders of Tudor,” there was no shortage of errors.

Welsh First Minister Rhodri Morgan picked up on that theme yesterday and pledged to do everything possible to prevent a repeat of the E.coli outbreak of 2005 – for the sake of the families affected.

“Poor hygiene practices at the abattoir and the butcher’s premises” caused the outbreak, but he added,

“These failings were not dealt with effectively by the Meat Hygiene Service or local authority environmental health officers. …” Environmental health inspectors need to “sharpen up” and “drill down beyond the box-ticking part of the inspection process to the potential danger of the reality beyond.”

In his report Pennington said an inspector who made four pre-arranged visits to Tudor’s in the run-up to the outbreak, should not have allowed him to continue using one vacuum-packing machine for both raw and cooked meat because of the risk of cross contamination.

Among his 24 recommendations, Pennington said all checks should be unannounced, unless there were exceptional circumstances.

Don’t tell mom the babysitter’s dead.

Looking out for the farmers of the "safest food in the world"

casey.jo.jacob@gmail.com (Casey Jacob) — Wed, 25 Feb 2009 13:52:26 GMT

This summer at the Kansas State Fair, I felt like I was getting a lot of strange looks. I tried to brush it off, telling myself that it was no crime to have never slopped a pig or stolen eggs from under a roosting a hen—I should still be welcome at the fair.

I was positive there were other non-farm girls there. Probably even some that grew up in the city; I, at least, shared a property line with a cow pasture. But people just kept staring.

I really got embarrassed when a representative from the Farm Bureau Federation started to laugh out loud and point at me.

When it finally donned on me that I was wearing my Don’t Eat Poop t-shirt that day, I turned to let him read the back: Wash Your Hands.

I explained that I worked for an organization that wants to turn the public’s attention to food safety.

He seemed to think that particular method was effective. “But do you make farmers look bad?” he asked while raising one eyebrow.

I told him we felt it was important that everyone does their part, from the farm to the fork.

He smiled, but I think he remained skeptical.

I raised my eyebrow today at a press release in which the director of congressional relations in the California Farm Bureau National Affairs and Research Division, Josh Rolph, was quoted as saying,

"Congress and the new administration will be sure to consider changes to the way the government oversees the safety of food production. We want to make sure that any changes don't prove to be burdensome to farmers, who are growing the safest food supply in the world."

I wish I could meet this guy and stare strangely at him. If anyone’s going to claim to grow the safest food in the world, they’re going to have to take some pains to prove it.

“The nation's farming community understands the need to improve food safety, Rolph said, but the farm-level impact to producers must be considered in any new food safety proposals.”

Salinas vegetable farmer Dirk Giannini referred to the surge in food safety action plans following the outbreak of E. coli from spinach in 2006, and explained that a frenzy of “non-scientific ideas” were putting farmers out.

"And don't get me wrong,” said Giannini, “The farmers do not want to jeopardize anyone's health or life—we have the safest food supply in the world. But the scientific-based decisions are the ones that we need to move forward."

Of course any actions to increase the safety of the food supply should be backed by scientific evidence, but public claims of safety should have the same foundation.

To the farmers who grow the food I appreciate every day: In your products and in your claims, Don’t Sell Poop.

Are petting zoos safe for kids?

casey.jo.jacob@gmail.com (Casey Jacob) — Mon, 09 Feb 2009 23:35:24 GMT

Last week, an E.coli outbreak involving at least 17 kids and 3 adults was linked to a Denver cattle show.

In light of that, a reporter for the San Antonio Express-News spent a day at the petting zoo at the San Antonio Stock Show & Rodeo asking parents if they were worried about the "germs" their kids were being exposed to.

Some said yes; many others were confident in the precautions they were taking.

The stepfather of a three-year-old wasn't worried. "We wash his hands," he said.

One mother said of her thumb-sucking two-year-old,

“I can’t keep her in a bubble. [But] it’s definitely something I think about every day with her.”

One of the largest petting zoo outbreaks of E.coli O157:H7 to date was linked to the North Carolina State Fair in 2004. A study of the outbreak by Goode and colleagues found,

Persons became infected after contact with manure and engaging in hand-to-mouth behaviors in a petting zoo having substantial E coli O157:H7 contamination.

Use of alcohol-based hand-sanitizing gels was not protective [against infection with E.coli O157:H7], although knowledge of the risk for zoonotic infection was protective.

Are petting zoos safe for kids? Maybe, if you're aware of the risks and make sure they don't eat any poop. But that might be easier said than done.

In the San Antonio article, Bill Marler was quoted as saying the threat of exposure to new and dangerous pathogens was too high for him to risk taking a small child or anyone with a compromised immune system to a petting zoo.

Its your call.

Edward S. Godfrey Professor of Law Don Zillman Publishes Two Books

Tue, 28 Oct 2008 13:39:10 GMT

Edward S. Godfrey Professor of Law Don Zillman has had two books recently published. The first book, Beyond the Carbon Economy - Energy Law in Transition (Oxford University Press, 2008), which is co-edited with Catherine Redgwell, Lila Barrera-Hernandez and Yinka Omorogbe, explores the legal ramifications of the unsustainability of our carbon-based, global economy. The book was discussed at a conference of the International Bar Associations, held recently in Copenhagen, Denmark. The second book, Strategic Legal Writing (Cambridge University Press, 2008), which is co-authored with Assistant U.S. Attorney Evan J. Roth, is designed to help law students sharpen their writing skills. The text was used by Professor Zillman and Assistant Dean Sherry Abbott in their spring Advanced Legal Writing course.

Chinese poop turns heads in Lawrence (Kansas)

dpowell@ksu.edu (Doug Powell) — Sun, 17 Aug 2008 04:29:27 GMT

Bryan Severns, a new food science student at Kansas State and a former chef, writes about the discussion prompted by his Chinese language Don’t Eat Poop shirt, and general hygiene at the Lawrence market:

On a beautiful sunny Saturday in Lawrence, the handwashing word was spread from the Farmers market, through the fabric store, to the Merc. The combination of Chinese characters and the Don’t Eat Poop web address were enough to spark conversations in food safety and educational techniques. The most common initial reaction is wide eyed disbelief that anyone would say that in public, but upon further explanation most people have stories of their own to relate, and the conversation is off and rolling.

In related news, it was nice to see a complete handwashing station set up at the Farmer’s Market. Actually saw it in action, very cool. I’m a total supporter of local producer markets, but quite often the sanitation is left up to individual participants, and most seem to barely get their product out on display, let alone take care of the clean up details. Big points to the Market Manager and city of Lawrence.

On a more general note, after spending three weeks and 3000 miles to get to KSU from Vermont, my wife and I are glad to be here and have a great time learning about the area. Thanks to all who have been friendly and helpful, Manhattan is a very welcoming city.

That’s me with the beard visiting our son at Coast Guard Station Fire Island, New York (below).

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