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More Harm Than Good

When David Prowse was hired to play Darth Vader for the first Star Wars movie, he prepared and spoke all of Darth Vader’s lines through the mouth of the suit. It wasn’t until he saw the first screening of the movie, that he learned that all of his lines had been dubbed over by the voice of James Earl Jones.

As we approach President Trump’s Thursday announcement of his Supreme Court nominee, I am reminded of David Prowse in that suit. Trump has stated that he will nominate someone “Like Justice Scalia”. Reportedly, Trump has narrowed down to three possible individuals. (here) If you scan those candidates, you might think like me and wonder “who is going to wear the ‘Scalia suit’?”.

Which brings me to one possible curious obstacle to President Trump’s wall building along the Mexican border. It comes from a majority opinion that Scalia wrote in 2015. (From the Opinion Pages of the NY Times)

Before the Supreme Court, an issue involving the Clean Air Act and whether the Environmental Protection Agency was correct in enforcing a provision to limit mercury emissions from power plants. And more specifically, whether such enforcement should balance the costs of enforcement to the power plants.

Scalia wrote that the EPA must consider the costs in such enforcement and that “No regulation is appropriate if it does significantly more harm than good”. The Secure Fence Act authorizes the Secretary of Homeland Security to take actions to enforce our borders when such actions are “necessary and appropriate”.

Now, this gives us a possible showdown at high noon, sometime in the future. The next Supreme Court Justice will be part of the Court who is expected to be faced with some case involving the”Trump Wall”. Will Scalia’s 2015 reasoning be the Court’s guide? Will the expense of the wall (15-25 billion) not be justified because of the amount of illegal immigrants still entering the U.S.? The cost will be do harm than good?

And for pic o’ day, “On the fence”:



Warrants for Cellphone Searches

      If you look at Internet home pages, you might read  “How to stop the FBI from reading your email” or  something about the IRS targeting the Tea Party and how the Justice Department is investigating.   

     Expectation of privacy, government intervention in private lives and Constitutional protection are all hot topics. Stay with me on this. I know that the prior sentence can cause anyone’s eyes to just glaze over. Instead, let me tell you about a Florida case and see what you think.

     The decision has been called a protection for drug dealers and child pornographers. Others call it an appropriate recognition of the Fourth Amendment to the U.S. Constitution, that guarantees that citizens are protected against unreasonable searches and seizures.

     The Tampa Bay Times reports on the ruling from the Florida Supreme Court. In a 5-2 opinion involving facts from a 2008 robbery of a convenience store, the Court ruled that “a warrant was required before the information, data and content of the cellphone could be accessed and searched by law enforcement”. It is all about the expectation of cellphone privacy.

     The majority ruled that police cannot just take a cellphone and go through it, without a warrant. There is an expectation of pricvacy. The two dissenting justices noted that the opinion “has the potential to work mischief in Fourth Amendment law.” 

     The police noted that a man found with five child pornography photos in his pocket, could be arrested for having child pornography photos in his possession. Conversely, if the pictures are on a cellphone, “he’s going to get away with it”.frustration




The Court did leave open the possibility that there could be an exemption for the requirement of a warrant for  “exigent circumstances”. That might leave the door open if it appears that evidence is about to be deleted. That makes me imagine a police officer snatching a phone out of the hands of some suspect who is scrolling and deleting.

     I regularly hear the expression that “our founding forefathers would have (insert a multitude of things)”.  Sometimes it does seem clear as to what the Founding Fathers and framers of the Constitution meant. Other times, it might not seem so clear. Especially when it relates to cellphones and other technology. Like this is a case where modern day meets Constitutional scrutiny. That’s why 7 Justices on the Florida Supreme Court could not agree.

     This robbery case had made it to the Florida Supreme Court after the Court of Appeals had ruled differently. They had applied a 1973 case where police had found heroin in a cigarette pack during a search. This Supreme Court overturned the lower court and distinguished the phone from drugs in a cigarette pack. What do you think?

     For pic o’ day, how about some airline non-humor:

airline nonhumor

Storming the Virginia Court System

Does rain or snow impact the Court system in Virginia? Well, “Sandy” has given an answer.

Virginia Courts are closed. According to Governor Bob McDonnell, state executive branch offices were closed on Monday and he reportedly copied his executive order to the judicial, legislative branches and independent agencies.

Monday was supposed to be a swearing in day for new Virginia lawyers. I am not sure exactly what happened; but, apparently the “show must go on”.  The Supreme Court’s website listed that, ”  the Virginia State Bar Admission Ceremony will take place as scheduled, the Court posted on its website. “Essential personnel required to support this event should report as planned.” New lawyers will be sworn in!

In Federal Courts of the Eastern District and the Bankruptcy courts, their websites posted closure notices and the U.S. Court system sent out an email closure notice. The notice said, “Jurors, litigants, lawyers, and others should check their local court’s website for closure details or use the court locator to find court websites”. Sounds like a puzzle.

The power of Sandy goes into the Court room and allows “Lady Justice” to take off her blind fold and take a break. Now that is some powerful wind and rain!


In a storm like this, trees falling become big concerns. For pic o’ day, I saw this on facebook. How many faces can you find in the trees?



Kill The Head

If you follow football or watch ESPN for more than a minute per day; you probably heard the pregame “motivational speech” that the defensive coordinator for the Saints,  gave to his defense before the NFC championship game against the San Francisco 49ers.

Just by happenstance, a man making a documentary was recording when Coach Williams said in part, the following, “We’ve got to do everything in the world to make sure we kill Frank Gore’s head. We want him running sideways. We want his head sideways. Every single one of you, before you get off the pile, affect the head. Early, affect the head. Continue tough and hit the head.”

In print it looks bad. If you heard it, you know that it sounded monotone and cold;  like some serial killer. Some have defended it.  Others, like Hall-of-fame quarterback Fran Tarkenton, have said that Williams should face criminal charges.

It was a speech that addressed attacking a man to give him a head injury. The other part of the speech included going after a player’s knee and also injuring their quarterback.

Some defensive players have tried to provide some defense that includes that he really didn’t mean it. Intentionally injuring someone is just hyperbole for the violence of football.  These are probably the same people that listen to Jim Nance announce the Masters as though everything in the present is actually history; and they conclude that it’s all historical. Living in fantasy. (I just wanted to throw something in about the Masters. I did want one man to move because he was blocking my golf course view with his stomach. Yep, no pictures because no cell phones, and now I know why!)

When I heard this speech, it made me think about practicing law a bit. Recently, we have had some cases continued because there were no judges available.

The Virginia General Assembly just entered into a compromise state budget that supposedly includes money for filling 23 trial court judge positions. Unfortunately, that’s only a start.

When someone says that they want their day in court, they usually don’t think of how it will happen. Our case in two weeks has been set for almost a year. Experts from out of state and in state have been retained and they have their schedules set to come to trial. Unfortunately, most of those retainers are non-refundable and will have to be paid again for the next trial setting.

It really is a good strategy for insurance companies, lobbyists and wrongdoers. You don’t always have to donate to campaigns or causes on a large scale; just target a few on such committees as the Appropriations committee or Finance to fight funding. If there are no judges to hear the cases and no one gets appointed, then cases take longer to get to court.

Sometimes I use my blog for personal venting. Forgive me for some venting. In legal terms, one way to “Kill the Head” is  to make sure that there is no funding. No Judges… No trials. Kills Justice.

For pic o’ day, I went with two. When you take a bit of vacation and come back; sometimes it makes you wonder why you would ever leave. I thought I would find some pictures about “being busy” and these made me laugh.


Defense Witness: Dr Kennedy Daniels

     To me, some things just don’t make sense. I heard that Ronald McDonald is no longer being used to market hamburgers. Maybe he has been reduced to a shopping cart and a cigarette. The Hamburgler can’t be far behind. Still, it just doesn’t match up.

     In researching this blog on Dr Kennedy Daniels, I came across two facebook accounts. Neither this  nor this  match up as the “Dr Kennedy Daniels”.  Cup doesn’t match saucer.

     Dr Kennedy Daniels is an orthopaedic doctor in Richmond, Virginia. Today, he was supposed to testify in trial for the defense. Originally, I was going to type “against one of our clients” because that is the way he seems to always testify. The case got continued because Richmond Circuit Court did not have enough Judges for trial today. One of those times that most of the Judges were at a conference.

     Dr Daniels is also scheduled to testify tomorrow, on behalf of the defense. His testimony is also adverse to our client’s interests.

     In both cases, he never saw our client;  He did a record review and is basing his testimony solely on “his review of the records”. You don’t need Alex Trebeck to be able to guess what his testimony is going to be again.  He has determined that the client did not need all of the treatment that was received. In these instances, different defense attorneys have identified his expected testimony as eerily the same in both cases.

          Defense attorneys usually can find doctors to testify. Plaintiffs have treating doctors and defense have their medical evaluations or record review doctors testify.

      Right now, Dr Daniels appears to be the “flavor of the month” for the defense. He will get on the stand and say that he can be more objective, being removed from the care. Somehow, he wants the jury to believe that not seeing the plaintiff/patient, is more objective.  That’s why it’s called a defense medical examination or defense medical record review.

     Here’s what doesn’t match up to me. He would never operate or treat someone, without seeing them, would he? At least that’s what I asked him in the most recent trial where he testified. Last trial I asked him how many patients he currently has in California. He gave me a confused look. I then said, “Well doctor, based on your testimony about objectivity, when not seeing the patient; it seems to me that you would only have out of state patients”.  He just smirked.

     For consideration, he wouldn’t get paid $5,000 (cost of his appearance in court that is paid by defense) if he did not render an opinion that was favorable to the defense.  They would not call him to testify. That $5,000 doesn’t include his expense for reviewing the records and writing his report.

               In tomorrow’s jury trial, he is supposedly going to render the opinion that the treatment of one of his partners was unnecessary.  That’s right…. one of his partners. That doesn’t seem to match up, to me. 

     He admits that he does these medical record reviews from his house and that the billing and payment use his home address. He doesn’t have to share that with the rest of his practice or partners, I’m told. It’s a separate business.

     When doing defense examinations, there is no doctor/patient prvilege. So, the only relationship of Dr Daniels, is with the defense attorney. I wonder if that is what the hippocratic oath ever contemplated? 

     It will be interesting to see what happens in this trial. I hope that the jury places no belief in a $5,000 record review. Hopefully, they will say that it just doesn’t match up.

Court Advice to Pot Smokers

     Normally you don’t see the Supreme Court giving advice to pot smokers. A Yahoo   story tells us about a case that was just recently heard, that gave some indication, by the questioning, as to the philosophy of some of the Justices.

     A man was entertaining two friends at his Kentucky apartment. No one contests that they had a small amount of marijuana and cocaine in the apartment.

     Nearby, the police had entered the building to go to another apartment, based on the tip of an informant. As they were going to raid the nearby apartment and while passing this man’s apartment door, they smelled the aroma of marijuana.

     As the police knocked on this “new door of interest”, they heard a toilet flushing, which caused them to kick in the door. The renter later pled guilty to drug charges. The Kentucky Supreme Court threw out the evidence and conviction because they held that the evidence was obtained without a warrant.

     The matter was appealed to the US Supreme Court. The primary issue was whether a noise that suggests possible destruction of evidence, is a basis to justify a warrantless search.

     The ruling by the Supreme Court won’t come out until sometime in the Spring. Some of the questions of the Justices could give some indication of how they are thinking.

     Justice Kagan said that she worries that allowing the evidence would make it too easy for police to avoid the necessity of a warrant. She stated that the police might regularly say, “we smelled pot, we heard noise”.

     Justice Ginsburg wondered why the police didn’t just go get a warrant when they smelled the drugs. She could not understand why they knocked in the first place.

     Justice Scalia decided he would question with tongue in cheek. With  fake outrage, he accused the police of “taking advantage of the stupidity of the criminals”.

     It wasn’t addressed in the article, but I wonder what ever happened to the apartment down the hall. Did they end up avoiding arrest because of their neighbors?

Clues of Kagan

     We were huddled around our high school basketball coach. He looked us in the eye and congratulated us on another victory. Then, he grabbed the scorer’s book and began reading the point total. “Crombie had 20 and Saxon had 23; Good job guys.” The rest of us just looked at each other. We didn’t dare shake our heads or say anything but I knew what everyone else was thinking.

     My high school senior year, I worked in the school Printing Department. I can’t say that it was good money.   I was being paid under the guise of “great experience”.  I did learn how to operate a printing press. My job was to basically clean the ink on each of the presses. I’m not sure that anyone even does the old fashioned printing anymore.   

     Anyway, I came up with this “great” idea that I would publish a paper and sell it at school. A couple of my buddies decided they wanted to go in on it. We would all write articles, I would print the paper, and we’d  sell the papers to the other students. We were emerging journalists.

     We called the paper “B-Ball Probe”, because we were going to do stories about the basketball team. I haven’t yet seen any copies pop up on PBS’s “Antique Roadshow” as collectors items; We only lasted 3 publications.

     We reported on the emphasis on scoring,  and how the Coaches put no emphasis on defense, assists or rebounding. This blog isn’t making me look real good, is it? Anyway, I can’t really say that it was “Bernstein and Woodward” reporting,  but apparently it got under the coaches’ collars. (Imagine that?)

     It was great to be a player/reporter because you got the inside story. Unfortunately, there is no freedom of the press when a coach tells you to “knock it off”. I think there might have even been something about a reward of getting to run extra laps everyday,  before practice. I did learn that there is “power in the pen”. I also learned that no one likes criticism; especially from some high school kid. I also learned a new term,  “rabble rouser”.

     Where am I headed with this rabbit trail? Well, I can’t really remember what I wrote back then, but I’m glad I don’t have to be accountable for it today.  That’s why I am always fascinated with the  machinations and process, when a Supreme Court nominee is facing scrutiny by the US Senate. 

     Everyone wants to find anything that has been written by the nominee. They pull out every writing and study it like the FBI studied the Unabomber’s manifesto, looking for clues. Well, maybe that’s not such a good metaphor for law. OK, they study the nominee’s past writings with a fine tooth comb.

     On Friday, 160,000 pages of documents were being readied and about half  were released  from the Clinton Library, which represents  the writings and works during Kagan’s tenure as a Clinton White House lawyer. Now, Senate clerks will begin “combing” over these documents to look for clues that might suggest the thinking and moral compass of nominee Elena Kagan.

     Historically, nominees have repeatedly surprised, when they have become Justices. Some supposed liberals show conservatism and some conservatives become “middle of the roaders”. It may be that the clues are not in past papers. Maybe it would be better served to talk to the everyday people that interact with the nominee and have personal relationships. What influences them today?

     I’m glad that I am not judged by my sophomoric writings of “B-Ball Probe”. Past writings probably show state of mind at the time, or even mood. In fact, maybe they show a leaning toward what an employer was seeking. This nominee’s writings might be  more about President Clinton than about her. Well, I guess it gives something for Senate clerks to work on,  late into the night.  Soon, our airways will be filled with those golden nuggets that were penned back then.

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