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Cursing and Nudity on TV

The title of the blog is more of an attention grabber than usual and it didn’t take creativity. Cursing and Nudity comes straight from a Supreme Court opinion that was published on Thursday.

In Federal Communications Commission v. Fox Television, (NY Times article)  the Supreme Court excused two broadcasters from potential FCC fines relating to past broadcasting violations  against cursing and nudity. It was an 8-0 vote.  Justice Sonia Sotomayor recused herself from the case.

The Court set aside fines against Fox relating to “fleeting expletives” that were uttered by Cher and Nicole Ritchie during a 2002 Billboard Music Awards show.

ABC and it’s affiliates had also been fined for an episode of NYPD Blue. In a 2003 show, an actresses’ bare buttocks were displayed during a shower scene.

The Court never got to the question of First Amendment rights and the possible limitation of free speech, over the airwaves. In fact, the opinion did not provide any guidance relating to when the government has the authority to regulate anything on broadcast television.

The Court did an “end-around” on the real issue. Instead, it chose to base the opinion on notice. Justice Anthony M. Kennedy wrote in the opinion that the FCC had changed the rules in the middle of the game. “The commission failed to give Fox or ABC fair notice, prior to the broadcasts in question that fleeting expletives and momentary nudity could be found actionable indecent”.

For those that believe that less government is better government, this opinion will be soup to the soul. However, there are some that don’t want government, unless they want something regulated; like what should be deemed immoral on television.  That’s what makes law full of twists and turns.

I blog… you decide!

For a TV blog, here’s pic o’ day:


“Black People From Jury Service”

Five African American plaintiffs have filed suit challenging that prosecutors have improperly excluded African Americans from serving on juries, because of race. It’s one of those topics that many are uncomfortable in discussing. It deals with the reality of the Constitutional right of a jury of your peers.

A group called the Equal Justice Initiative (EJI) has filed suit against an Alabama prosecutor. As the suit states, the Chief  Alabama prosecutor has “repeatedly been found to have illegally excluded black people from jury service with  the  peremptory strikes, in capital cases, but he continues the practice because most people don’t know about it”.

The lawsuit is filed in the US District Court of Montgomery, Alabama. It alleges that during the period between 2006-2010, prosecutors excluded 82 percent of qualified black jurors in death penalty cases. As a result, the jury in every death penalty case in Houston County, over this period, has been all white or only had one black juror . This ratio is statistically correct, according to EJI,  despite the fact that the Circuit is nearly 25% African American.

In 1986, the US Supreme Court determined in Batson v. Kentucky, that prosecutors using their peremptory challenges, could not exclude a person, based on race. It’s now known as a Batson motion or challenge. It also applies in Civil Cases to assure that a person has a true right, under the 14th Amendment, to be protected under the Equal Protection Clause.

Practically, I have made a few Batson motions during the picking of a jury. Normally, I will advise the Judge presiding over jury selection, that I have a motion to make. The Judge may send the jury out, or just call us up to the bench. At that point, I advise the Judge that I have a Batson motion, as a challenge to one of the jurors that the opposing attorney has struck.

In Virginia, in Civil trials, we normally start out with a panel of 13 jurors and some potential alternates that remain on the panel. Both sides get 3 strikes each, because of some perceived reason that the potential jury might not be fair. Or, if lawyers stated it more accurately, ” might not  be a good juror for our case”.

When a Batson challenge is raised for one of those strikes, then the opposing attorney has to give some specific  non-racial reason as to why they struck the juror.  It can’t be something like “I didn’t like the way he was looking at me” or “she just didn’t seem interested”.

Initially, Batson was only for Criminal trials. Then, the Virginia Supreme Court, in a 1992 case (FAISON), applied it to civil and said that striking a black person in a case involving a black litigant (plaintiff or defendant) satisfied the bare facts for a Batson challenge.

The Faison decision specifically reversed the lower Court’s ruling that a juror’s demeanor or attitude coupled with the potential juror’s employment as a radiology technician, was not good reason to meet the burden to strike.  Typically, the Judge will cure the strike by putting that juror back on the panel.

I know that is some real legal blogging. So, I thought pic o’ day should be about finding a place to rest:

Fermented Apples & Applebee’s

I am a product of “surfing distraction”. I started to do a blog on the restaurant, Applebee’s. Then, I got sidetracked by the moose that got stuck in a tree. The picture and story from Stockholm tries to explain it. Apparently, this moose go stuck in a tree because it was drunk….. from eating fermented apples.

I’m told that there is even a YouTube video of this. Maybe it was best that the moose was relaxed but that ‘s sure an odd thing to find in the yard. At least you can see how searching Applebee’s, would get me sidetracked by a fermented apple and moose story….. can’t you??? I gotta assume he’s out of the tree and has gone into apple rehab.

And now to the Applebee’s lawsuit.  There is currently a class action suit by Applebee’s employees, relating to a wage claim.

Under federal law, servers at restaurants can legally be paid $2.13 an hour, as long as they’re earning enough to make up the difference through tips. However, if the employees spend more than 20% of their time on “non-tipping” duties, then they must be paid at least minimum wage.

Over 5000 current and former employees of Applebee’s are claiming that they fit in that category and should be paid  for the back due wages. Initially, counsel for the restaurant claimed that the lawsuit should not be allowed to proceed because it should only be decided by mandatory arbitration.

Just to digress a moment. ( I promise it won’t be about fermented apples or whether a moose should replace an angel at the top of the Christmas tree.) The US Supreme Court, in their last session, did recognize mandatory arbitration clauses, which may make some lawsuits virtually not worth pursing, because a class has more power than one claim at a time. Kinda tips the scales to Big Business, doesn’t it.

Now, back to our regularly scheduled blog topic…. A Federal Appeals Court, in St Louis, allowed the lawsuit to go forward, which could include back wages and possible government fines. That happened on July 6, 2011. If it’s not appealed to the US Supreme Court;  or, they do not agree to hear it on appeal, then it will be sent back to the lower level District Court for a jury trial. One for the little guys!

Now, pic o’ day, even if it doesn’t match up to “moose in a tree” or toast on a stick. I call it “Cat in Christmas tree”.

Saved By the Bell

     Apparently, in medieval times, burying people before they were truly dead was a known problem. That’s why, a pre-burial system was developed and was known as “being saved by the bell“.

     At the time of burial, a string was tied to the “dead” person’s hand, and then the other end of the string was tied to a bell and then tied to a nearby tree branch.  On occasion, someone who was only unconscious who then revive, would obviously ring the bell in a panic; and their family would rush out and dig them up.  Truly…… “saved by the bell”.

     A recent political donation prosecution can fall under that kind of category. Two executives had been charged in an alleged scheme of recruiting political donors for Hilary Clinton’s 2006 and 2008 Senate campaigns.

     On February 16, 2011, a grand jury that was convened in an Alexandria courtroom, charged the executives with illegally soliciting campaign contributions and then reimbursing those donors for the money that they had given to the campaign. It was an illegal way around the campaign donation federal limits.

     In 2010, the US Supreme Court ruled in Citizen United  v.  FEC that corporations should be treated as individuals. Now, in the eyes of the law, corporations are entitled to equal political speech and are able to contribute politically, like an individual.

     As a result of that Court holding, the Judge in the potential criminal case against these two executives, dismissed the charges against them. In interpreting that Supreme Court case from last year, the Judge held that it created a loophole and that the charges were really now considered a corporation donation. 

     It didn’t matter that those donors were reimbursed by those two executives because, it could legally come from the corporation anyway. With that recent case, these executives were basically saved by that legal bell.   (US v. Danielczyk May 26, 2011)



Justice Thomas: The Quiet Justice

     There was a course in law school called “Moot Court”.  The professor was trying to teach us the concepts of trying a case. At the conclusion of the course, he brought local judges to sit, to hear our arguments on the case  that we had worked on, all semester.

     When the professor prepared us for our final arguments, he lets us know that the judges in the competition, would be asking us questions that might cause us to lose our train of thought. He said something like, “try to stay on track in your argument”.

     Very early in my legal practice, I tried a jury trial in the Norfolk, Virginia,  Federal Court.   I had to appeal the Judge’s ruling. That’s code for “it didn’t turn out the way it was supposed to”.

     I remember driving to the 4th Circuit Court of Appeals in Richmond. A seasoned lawyer had reminded me that I may get interrupted by the panel of Judges that were hearing the appeal. Plus, I needed to keep my eyes on the lights on the podium. As the argument progressed, they would go from green to yellow to red. At red, I had better sit down.

     Well, I got up with shaky voice and sweaty palms. My mind was filled with the cases from my appellate brief. I was ready to present my argument. After my first sentence or two, the questions began. “Tell us Mr Bieber, how do your facts compare to” and they began asking about the case law.  You can’t distract them with such remarks as, “Did you hear the one about the guy who…..”

     My best laid plans for argument went out the window. I will say, I was a bit relieved to see the red light come on. I had done all I could and survived. It felt a bit like a high speed game of ping pong, where I was reacting as fast as I could.

     I could tell you other stories about Judges during arguments and motions that are similar to this experience. Many, in the Judicial branch of appeal, feel as though that is the appropriate process for appellate argument.

     Justice Clarence Thomas (CNN article) takes a different view. In fact, he is celebrating  a quiet anniversary of five years of Court silence.  He recalled in a speech a few years back that, “One thing I’ve demonstrated is that you can do this job without asking a single question.”

     As CNN reports, his “just say nothing” approach is like Court was, many decades ago; allowing lawyers to argue their case without interruption.  Justice Thomas has also indicated that his silence relates to his opinion already being formed, based on the filed pleadings, that he has read before the argument.  In 2007, when questioned about it, he remarked as a joke, “My colleagues should shut up”.

     In my first appeal that I mentioned earlier, I was fortunate to have the lower Court’s ruling reversed, by the 4th Circuit.  I’d say that it had something to do with my amazing skills of argument. It’s probably more realistic to think that maybe, I was kept so busy by the questions, that I didn’t even have time to make a bad argument.

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?

Supreme Court Robe Room

     A few winters back, a friend asked me to meet with someone to discuss a business and possible investment. I showed up for breakfast and waited. Soon, I was face to face with the man “and his business opportunity”.

     His face was a tanning bed combination of burn/tan. He had a smile that would shock and awe any dental office, both in color and tooth arrangement.

     His suit didn’t have a natural fiber in it. As he reached to shake my hand, his gold-plated bracelet jangled. His appearance was not going to fool anyone, despite his amazing story of expected success.  (It reminded me of the person who was explaining his importance to me and told me he knew Mr Ups, and why that might help. Later, I realized he was talking about UPS. I’m serious.  That story could be a whole blog.)

     Mr Business Proposition told me, “I already have a few million committed to this project”,  I just need a little bit more so we don’t have any limitations”. Then, he went on to describe that I would double my investment money, in about a year. Of course,  in response to me questioning  as to why he just didn’t borrow from the bank, he responded that, “banks don’t understand this kind of business”.

     I suspect that his business did not get off the ground. I have given you the short version. When I saw his appearance, his story of investment only continued to crease my brow into more confusion.

     This “business introdution’ came to mind, as I was thinking about the 60 Minutes  (TV and print version here) story that was recently done on Supreme Court Justice John Paul Stevens and the inner workings of the Court.

     He has just retired at age 90. While a Justice serves, he is not to do interviews about Court dealings and opinions. Because he was retiring, he let reporter Scott Pelley follow him around during the last session, and also tape places for the TV story that had never been seen before, on camera.

     On the surface, the Supreme Court looks pretty intimidating, I think. A story book view of the Court is that they read past caselaw and apply it. They sit in those black robes and reason among themselves, as they arrive at an opinion that is then published as the law of the land.

      However, if you watch the story, you might find initial appearances to be a bit deceiving. His discussion of the Court, including  a view of where the Justices put their robes on; as well as a look into what happens behind the scenes, was fascinating. I think that if you read or watch the 60 Minutes piece, it might give you a different insight into what you think of the Supreme  Court’s activities, beyond that solemn appearance.

     Justice Stevens also discusses three recent Court decisions that gave him problem in the result.  First, when the  Court decided the 2000 Presidential election. If you recall, the Court told Florida to stop the re-counting of the votes. The basis for the 5-4 decision was that the Court ruled that the count could not have been completed by the deadline. Justice Stevens dissented, with the belief that nothing should have been done by the Court, until the time for counting had expired. His view was that the Court was too proactive.

     Another decision he discussed was the Padilla appeal, where an American citizen was declared a terrorist by the President and imprisoned, without any trial. It is a precedent where those who are considered  a danger, can be imprisoned by order of the President, without Constitutional due process. Some feel that religious liberty will be attacked under this same reasoning, in the future.

     One other decision of note that was discussed in the story, involved the Court’s recent ruling in allowing Corporations to be recognized as individuals, for political contribution purposes. Never before has this been the law.  Congress could have enacted such a determination; Instead, the Court  created new law  without precedent regarding Corporations having rights as a person.

     If someone shakes your hand with crooked teeth and looks a bit homeless, you probably know that it’s not a good idea to hand over your money for investment. When a Justice of the Supreme Court  gave a rare glimpse into the robe room and the inner workings of the Court, it seemed a bit surprising to see some unexpected things in the judicial system.

Pledge of Allegiance or Jail

     Remember the  joke about the boy who got in trouble during the Pledge of Allegiance?

“The teacher advised the class that they start each day with the pledge of allegiance and instructed them to put their right hand over their hearts and repeat after her. As she starts the recitation, she looks around the room, “I pledge allegiance to the flag . . .” When her eyes fell on Johnny, she found that he had his hand over the right cheek of his buttocks.

“Johnny, I will not continue until you put your hand over your heart.”Johnny replied, “But it IS over my heart.”

After several attempts to get Johnny to put his hand over his heart, the teacher asked, “Why do you think that is your heart?” “Because every time my Grandma comes to visit, she picks me up and pats me here and says, ‘Bless your little heart,” and my Grandma wouldn’t lie!”

     For a Mississippi lawyer, not saying the Pledge of Allegiance landed him in jail. When the Judge asked everyone to stand, before Court started, to recite the Pledge of Allegiance, Attorney Danny Lampley remained silent. As a result, the Judge jailed him for 5 hours. In response to a reporter’s question, Lampley replied, “I don’t have to say it because I’m an American”.

     70 Years ago, the US Supreme Court ruled that school children could not be required to recite the Pledge. The expected extension of this Court ruling is that no one can be required to recite it.  As such, even a Judge can’t require a lawyer to do so.

     There are at least two reactions to this story. On one hand, this attorney has the right and protection to  exercise his freedom of speech. This Judge should abide by the law of the land, the ruling of the Supreme Court.

     The other opinion can be summed up by one Mississippi resident. When he learned of Lampley’s refusal, maintenance worker Bobby Martin said of Lampley, “I thought he was a disgrace to the United States. If he can’t say that in front of a judge, he don’t deserve to be here”.

     I guess the third viewpoint would be “Why”. Why would this lawyer feel that he needed to exercise his right of freedom of speech, by not reciting the Pledge.

    This story also is a reminder of when “under God” was inserted into the Pledge. In 1943, the Court issued its ruling about school children. In 1954, “Under God” was inserted by Congress, because they wanted to send the message that the United States was different than those “godless communists”.  Since then, there have been those that have attempted to get “under God” removed, as a violation of separation of church and state. No Judge has agreed.

Justice Stevens Gives a Wave

         I was afraid to title my blog “Justice Stevens” for fear that this would be one blog that you would just skip. So, I thought I’d better add a slight addition to that. Maybe you’d think that Justice Stevens was taking up surfing. Plus, I want to post an attachment to a blog   at the National Law Journal, which does a good job of hitting some of the highlights of his years on the Court. I thought about inserting the question, “Why do we call a chair a bench?’ Well, that probably would have driven you to Gilligan reruns too.

      If you check out bestseller lists, normally you won’t see books flying off the shelf,  that are written by or about Supreme Court Justices. Their rulings as part of the check and balance system of government and are impacting all of our lives. Despite their importance, it’s easy to think that their lives might be as colorful as their robes.

     The better information that usually finds it way into the information highway, does so, usually, through some unidentified clerk. With Justice Stevens announcing his retirement from the Supreme Court, it now becomes front and center as to who will be nominated to replace him. Meanwhile, it allows us to look back at the legacy of Justice Stevens, while looking forward to what the vacancy might mean.

     For the purposes of this blog, I’ll just recite three stories as told by clerks that served for Justice Stevens, and written in an article by Diane Marie Amann and posted in the above attachment. These may tell us a bit about the man. It certainly shows that he has a sense of humor.   

     Story 1: When arriving in Washington in 1975, Stevens listed his occupation as “Justice” on a form, which caused him to remark about the reaction to his entry that, “OK, last week, I had a guy who said ‘Peace.'”

     Story 2 : At an oral argument during the 1998 term, one lawyer called Justice Rehnquist “Judge”  which caused Justice Rehnquist to reply with a stern reminder that the Court comprised of “Justices.” No one spoke up.  A few days later, when the scene repeated itself in another argument, Justice Stevens, who had expressed unease at the first exchange, when  he returned to his chambers,  then remarked; before Rehnquist could respond to the “offending lawyer”.  According to the story, he recited the Constitution, to point out his thoughts on “Judge” versus “Justice” by saying , “Excuse me, but if I am not mistaken, Article III refers to us as judges.”

     Story 3:  One time,  when walking into a Court reception,  Justice Stevens relieved a law clerk of the task that another Justice had assigned her: serving coffee to that Justice and the other men in the room. “Thank you for taking your turn with the coffee,” Stevens told her. “I think it’s my turn now.”

Knock Knock, I’m Coming In

     The Mercury News  is reporting that The U.S. Supreme Court has upheld a ruling by the 9th U.S. Circuit Court of Appeals that  allows a lawsuit to proceed.  A  former California resident  filed suit against the city of San Carlos and two police officers. The officers had appealed the filing as having no basis to proceed against them as officers. 

      In 2003, the resident, Bruce Hopkins, was involved in a traffic accident. It was a low impact accident and he apparently just left the scene without stopping. According to the factual account, the other driver followed Mr Hopkins to his residence and called the police.

     When the officers arrived, they knocked on a screen door but got no answer. They then cut through the screen and entered the house with their guns drawn. According to the officers, as listed in court documents, they entered the home “because they had been trained that what a layperson might describe as an odor of alcohol (according to the other driver) might be a ‘fruity smell associated with a diabetic emergency. The officers found Hopkins on the floor of his bedroom and handcuffed and arrested him on suspicion of driving under the influence of alcohol,  after he failed a Breathalyzer test. No mention as to whether the officers tested his blood sugar.

      County prosecutors dropped all charges after Hopkins’ attorney had filed a motion to suppress the evidence as illegally received, after they had entered the residence to “rescue”  Mr Hopkins.  Then, Mr Hopkins filed a civil rights action against the officers. Based on the Supreme Courts’  ruling,  a trial in the case is expected to be scheduled  in the next few months. 

     The officers have left the police department and are working as officers in other cities. I wonder if they think that it would be ok to break into an ice cream store and take the ice cream, to make sure it doesn’t all melt. Just a thought.

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