Appellate Court rejects expert testimony based on distance diagnosis

A defendant was convicted of murder based on the testimony of a human bite mark expert who never viewed the bite site, but viewed nine year old photographs of the deceased, instead.  The defendant's state court trial counsel did not object to the admissibility of the evidence.  On a habeas corpus petition, the Sixth Circuit Court of Appeals set aside the conviction because the expert testimony regarding bite marks was inadmissible.  The court correctly notes that the case was deeply troubling.  The crime was horrific.  Nevertheless, the evidence of guilt depended almost entirely on the testimony of a bitemark expert.

The expert testimony should never have been admitted in the first place.  As the opinion makes clear, the defendant was charged with a crime more than nine years after the victim's death.  Obviously, the bite mark expert did not examine the body after nine years.  How did he make the match?  By analyzing photographs of the purported bite mark on the victim's body! 

No testimony was elicited regarding the reliability of bitemark identification from photographs.  You may not be surprised to learn that the expert who testified at this trial was found to be unreliable in two subsequent reported decisions.  In one of those decisions the DNA evidence contradicted the expert's bitemark "match" and, in the other, his opinion was contradicted by another expert. Bitemark evidence must be carefully analyzed before it is admitted.  There is substantial disagreement on the reliability of the evidence and any court considering it should carefully examine the underlying science. 
 
In California, there are two reported cases admitting bitemark evidence:  People v. Marx (1975) 54 Cal.App.3d 100, and People v. Slone (1978) 76 Cal App3d 611.  A court should still carefully examine the underlying science for the requisite reliability before admitting any such evidence, notwithstanding these cases.

Posted by Joseph R. McFaul on Saturday, May 05, 2007 at 00:00 Comments Closed

Bongs hits 4 Jesus at the Supreme Court.

This case arose from an off campus event in the city of Juneau, a very small city crammed between a fiord and a glacier. The Winter Olympic torch was making its way through the city.  The Torch Relay was a big event for this city and the entire high school was excused for the day to turn out and watch the passage of the torch.  One student, intent on have his moment of TV fame, made up a big sign "Bong Hits 4 Jesus" and strategically placed himself for maximum camera time.   He unrolled the fourteen foot long sign right as the torch went by.

The school principal predictably took offense and ripped up the sign.  The student, perhaps more predictably, sued the school and the principal.  At the Ninth Circuit, the court held that the student's first amendment rights were violated and the principal faced personal liability because she should have known that her actions violated the Constitution.  Therefore, she was not entitled to the qualified immunity that protects nearly every police officer kicking in doors of unsuspecting citizens in this country.
 
Briefs can be found on the school district's website.  Transcripts of oral arguments can be found on the Supreme Court's website:
 
As you can see, Juneau Douglas High school is located at 1639 Glacier Ave., on the parade route.  Everywhere in Juneau was on the parade route.
 
This seems to be overlooked by the Court and by Kenneth Starr in oral argument.  The close quarters situation in Juneau meant that the sign unquestionably disrupted school activities.  Any banner not associated with the Olympic torch would have been disruptive in these circumstances.  The Court, if looking for narrow grounds for a reversal, could stop right there.
 
The school board also argued for a policy of broad discretion in regulating student speech, especially student speech advocating unlawful behavior.  The Court's questioning became more pointed on this issue and the Justices seemed reluctant to impose limits on certain types of speech.  In this line of argument, the school board attempted to get the Court to narrow its Tinker ruling allowing students to wear black armbands to protest the Vietnam war.  In Tinker v. Des Moines School District, the Supreme Court approved the black armbands even if some school disruption could be expected.  After Columbine, it is fair to say that the calculus of student speech has shifted.

I predict that the Court will indeed restrict Tinker to some extent.  The  school district should be accorded very wide latitude in controlling time, place and manner of speech.  On the other hand, minority views should be allowed expression.  The Supreme Court has already hinted at that in its handling of Harper v. Poway School District, blogged here.

A student should have the opportunity to express unpopular opinions at school in an age appropriate manner at the proper time place and manner.  For example, "Bong Hits" Fredrericks should be able to express an opinion favoring legalization of marijuana at school, perhaps in the form of an in-class essay or in an op-ed piece in the school newspaper.  He shouldn't be able to express it on a T shirt or on a 14 foot banner at an Olympic Torch ceremony.

Justice Harlan's dissent in Tinker may be the last word, " I would, in cases like this, cast upon those complaining the burden of showing that a particular school measure was motivated by other than legitimate school concerns--for example, a desire to prohibit the expression of an unpopular point of view, while permitting expression of the dominant opinion."

Under that anaylysis, Fredericks loses and Harper wins.  Since Harper has already essentailly "won,"  Justice Harlan may carry the day after all.

Posted by Joseph R. McFaul on Tuesday, March 20, 2007 at 00:00 Comments Closed

Lemon Law attorneys fees award turns sour.

The California Court of Appeals held that California's Lemon law does not pre-empt Code of Civil Procedure Section 998. Under California's Lemon Law, manufacturers and retailers of consumer goods, including automobiles, must promptly fix or replace defective products. Failure to do so allows the buyer to recover attorneys fees and other statutory damages. The defendant is generally not allowed to recover attorneys fees if the defendant wins. This one way entitlement to attorneys fees explains why many cases do not settle. Plaintiff will recover all reasonable attorneys fees as long as plaintiff wins even a small judgment. The attorneys fees often overtake the amount originally in dispute as an important consideration in the lawsuit.

For example, a plaintiff that recovered a modest $12,000 judgment for replacement of an $8,000 car may recover reasonable attorneys fees that exceeded $75,000.00. She could have recovered $150,000 in attorneys fees if her attorney had simply billed more that $120 per hour. See, e.g., Nightingale v. Hyundai Motor America (1994) 31 Cal. App. 4th 99. This is not an atypical result in Lemon Law cases.

In Dauale v Mercedes Benz, Third Division Februry 14, 2007) the defendant made a Code of Civil Procedure section 998 offer to buy back plaintiff's Mercedes Benz for its purchase price of $51,466 plus "plaintiff's reasonably incurred attorneys fees and costs to date" as determined by the court.  Section 8998 encourages settlemetns becasue if a party does not  do better at trail then that [party will be barred from recovering costs, inclduign nay attoensy fee.  Seciton 998 encouraged  amking resaonable settlement becasue a rejected reasonable offer may protect the party attemtpigntot settle and a resonable offer might actually be accepted savign tiem moenya nd effort for all.

Plaintiff rejected the offer. After a five day jury trial, plaintiff was awarded $49,000, less than the amount of the offer.  In spite of the lesser verdict, the trial court then awarded plaintiff costs and attorneys fees in the amount of $57,753, a totla award in excess of $100,000.00.

The defendant challenged the attorneys fees award because plaintiff had not done better than the pretrial offer. The CCP 998 penalty for failing to obtain an award greater than the offer is that a the prevailing party at trail may not recover attorneys fees. The trial judge held that CCP 998 was a "general" statute while the Lemon Law was intended to remedy a specific consumer issue. Therefore, under the udge's analysis, CCP 998 did not apply to Lemon Law actions.

The appellate court reversed, holding that CCP 998 did apply to Lemon law cases. The court declared that he legislature's "carrot and stick" policy behind section 998 applied to lemon law cases as well.

You'll notice the clever language in the offer. The offer included an offer to pay "reasonable attorneys fees." The result is that attorneys fees do not need to be calculated and included as a factor in determining who is the prevailing party.

Posted by Joseph R. McFaul on Friday, March 16, 2007 at 00:00 Comments Closed

ISP's may be required to save and store internet customer data

Representative Smith of Texas has offered a bill that would require all Internet Service Providers (ISP's) to track customers' online activities and retain customer identities. There are a number of problems with this bill that all fit under the heading of "Big Brother."  The bill's proponents claim that the information is necessary to track cyber crime, especially child pornography and terrorism threats. 

It isn't.  When contacted for a specific information for specific cases, ISP's already provide information to law enforcement officials as required under the 2003 Electronic Communication Transactional Records Act.

There is no indication that the ECTRA is not adequate to do the job.  The seriousness of child pornography and terrorism can't be minimized.  But, we must remember, the war is with Eurasia, not with our own citizens.

Posted by Joseph R. McFaul on Wednesday, February 14, 2007 at 00:00 Comments Closed

You want a lawyer? You must be sane!

Criminal law has its own principles.  Those of you over 6 years of age who watch television know that an arrested criminal has the right to consult with a lawyer and the right to remain silent.  It is considered unfair to tell the jury that a defendant asked for a lawyer or chose to exercise his right to remain silent.  You can't even hint.  People v. Vargas,(1973) 9 Cal 3d 474.

Sometimes the evidence is so strong that a defendant will find the need to assert the insanity defense.  If the arrested defendant asks for a lawyer upon arrest,  is that evidence of sanity?  In other words, "Are you crazy not to ask for a lawyer?"

"Yes" says the Ninth Circuit. The court held that asking for a lawyer after being arrested seems to be a good idea.  So good, that you must be thinking pretty clearly.  Therefore, asking for a lawyer upon arrest is evidence of sanity.  I suppose you could still assert the "Ron White" defense, a lesser form of insanity, even if you did ask for a lawyer.  Now, you might think that asking for a lawyer is solid evidence of a life wasted watching too much TV.  Well, despite television, the Ninth Circuit says that asking for a lawyer is such a good idea that it can be used to demostrate you're not crazy.

That's good to know. If you are in legal trouble, don't be crazy, get a lawyer.

Posted by Joseph R. McFaul on Tuesday, February 13, 2007 at 00:00 Comments Closed

eBay Bans Sale Of Imaginary Items

You might think that it would be hard to sell things that don't really exist.  For one thing, buyers might be scarce.  It turns out you would be mistaken.  People who play in online games role playing games or MMORPGs (Massive Multi-player Organized Role Playing Games), may go on quests, fight battles, hunt for treasure or even live a simulated life in simulated towns and suburbs all in the comfort of their own homes.  Participation in virtual adventures can sometimes blur the distinction between reality and virtual roles.

The everyday accoutrements of virtual life exist only in electrons, yet have become so valuable that people are willing to spend cold hard cash (or pay by credit card or PayPal) in a secondary market where role players can purchase virtual or imaginary weapons, spells, or even that hard-to-find, yet indispensable, Cloak of Flames.

If you are a real loser, you can even replenish your supply of play money poker chips for online use.

And, if somebody has something to sell and somebody want to buy it, sooner or later, it will be up for auction on eBay.  eBay, though, is going out of the virtual goods market and will no longer accept bids for virtual items.  Transactions in virtual goods is a grey area in copyright law.  Most role-playing game licenses prohibit the trading or sale of virtual spells, orcs, trolls and cloaks in RMT (Real Money Trade) auctions.  eBay apparently wants to avoid potential copyright infringement litigation, but is turning away from a market with annual sales of $880 million.

That's right - $800 million for imaginary stuff.  Just think, for the price of an imaginary cloak of fire, you cold invest in real life tulip bulbs.

Posted by Joseph R. McFaul on Tuesday, January 30, 2007 at 00:00 Comments Closed

Defend a client, go to jail?

Via Volokh Conspiracy, an administration official apparently has suggested that law firms representing Guantanamo detainees might want to re-consider that representation because the law firms' collective corporate clients will object to the firms representing terrorists and take their business elsewhere.  This is disturbing, if the official is accurately quoted.

I agree with VC contributor Jonathan Adler that it is simply wrong to attack law firms who do pro bono work on behalf of clients who may be criminals and terrorists.  So far, it is still a principle of American justice that all persons, even organized terrorists from other countries who kill American citizens in cold blood on American soil are entitled to legal representation.

The administration official drops dark hints as to the source of funding for the the legal representation.  Accepting funds from criminal enterprises, whether the Mafia, drug cartels or international terrorists, is rightly a crime.  If there is evidence of such, then charge the law firms with the appropriate crimes.  Threatening lawyers with "consequences" for representing clients is against the basic principles of our country.  The administration should disown the comments.

Posted by Joseph R. McFaul on Monday, January 15, 2007 at 00:00 Comments Closed

Airline sued for being

Legal Newsline reports on several lawsuits arising from the Southwest Airlines flight that skidded off the end of the runway at Chicago's Midway airport during snowy conditions in December 2005.  There was one fatality, a six year old boy who was a passenger in a car struck by the plane as it slid into the intersection. 

 A much luckier bystander claims he was injured by the plane's emergency chute and seeks to recover damages because Southwest is "despicably focused on keeping within flight schedules, punctuality and cost savings."  According to the complaint, Southwest "gave the pilots great discretion ... to make life-and-death policy decisions."  Those allegations would normally seem to be good things, but, in this case, the plaintiffs are alleging that the decision to land the plane may have been a poor one.  According to Boeing, the plane's manufacturer (and a defendant), it may have taken a plane about 5,800 feet of runway to stop int he snowy weather conditions that evening.  The runway is 5,826 feet long.

Posted by Joseph R. McFaul on Sunday, January 14, 2007 at 00:00 Comments Closed