Wednesday, June 29, 2011
"Any display of an image in a manner in which there is a reasonable expectation that it will be viewed by the victim by telephone, in writing or by electronic communication, without legitimate purpose and:
1) With malicious intent to frighten, intimidate or cause emotional distress; or
2) In a manner the Defendant knows, or reasonably should know, would frighten, intimidate or cause emotional distress to a similarly situated person of reasonable sensibilities; and
3) As a result of the communication, the person is frightened, intimidated or emotionally distressed."
A violation of this law will carry a sentence of up to 30 hours of community service or a fine of $100.00.
The intention behind the law is to prevent cyberbullying among children and teenagers. The law focuses much of its attention on social networking sites such as Facebook and Twitter where users are able to post pictures and comments on other users' walls with little restrictions.
In an effort to clarify the scope of the rule, Senator Bill Ketron states "The images must be targeted at a specific person. If you randomly stumble upon something online that was offensive, this law would not apply."
Many critics of the law feel that it is overly broad, creating a "slippery slope" when it comes to deciding what constitutes harassment and what doesn't. On its face it is hard to determine if the law applies only to minors or if it applies to adults as well. Many also feel that this new legislation will open a "pandora's box" with respect to control over the type of material that can be posted on the Internet.
TN cyberbullying law draws ridicule
The law is set to go into effect on July 1, 2011.
Wednesday, June 22, 2011
The U.S. Supreme Court decided an interesting case this week, Turner v. Rogers, addressing an indigent defendant's right to counsel for civil contempt proceedings when facing incarceration. Turner was held in contempt of court and sentenced to incarceration several times over many years because of his failure to pay child support. While imprisoned for a year, he appealed arguing that under the Fourteenth Amendment, he was entitled to counsel during his hearing (even though the custodial parent, Rogers, did not have an attorney at the hearing either).
The Court unanimously held that Turner was not entitled to an attorney at his hearing. The Court noted that the Sixth Amendment right to counsel only applies in criminal cases so they had to look to the Fourteenth Amendment's Due Process clause. Citing policy reasons for the importance of due process, the Court ultimately decided that providing an indigent defendant with an attorney in civil contempt proceedings would make the proceedings "less fair" overall. The reasoning for this is because, as here, a lot of times the custodial parent seeking child support is not represented by counsel either. Since this parent is arguably a single parent, trying to support a family, he or she may not have the money for an attorney. To appoint counsel to one party and not the other would make the proceedings vastly unfair.
The Court also held, however, that there are certain procedural safeguards that should be in place to prevent violations of due process in situations like this. For instance, the lower court should have informed Turner of the legal significance of his financial situation; or they should have had a common form for defendants to fill out regarding their financial situations; or lastly, they should have afforded Turner the opportunity to answer questions about his financial status during the hearing. Without these procedural safeguards, the Court was required to vacate the decision and remand the case for further proceedings.
Tennessee Criminal Law Review discussed this case after Oral Arguments here. There has been extensive coverage about his case: New York Times, Washington Post, and the Wall Street Journal Blog all offer analysis that is worth reading.
Three former or current Wal-Mart employees brought suit against Wal-Mart as representatives of one of the largest class action suits in history. Members of the class action included 1.5 million current or former female employees of Wal-Mart Stores, Inc. alleging Title VII violations and discriminatory practices based on their gender. Specifically, the Plaintiffs allege that Wal-Mart's promotion and employment procedures are discriminatory towards women and favorable towards men; generally men are paid more and receive more promotions than women of the same employment levels.
The question for the Court was whether this class action fully complies with the requirements of Rule 23 of the Federal Rules of Civil Procedure. There are four requirements a class action suit must meet under Rule 23: numerosity, commonality, typicality, and adequate representation. The 5-4 opinion written by Justice Scalia centered around the "commonality" requirement and whether the 1.5 million women involved could prove that there are "questions of law or fact that are common to the class." Justice Scalia suggested that the commonality requirement required much more than multiple violations of the same provision of law by Wal-Mart. Rather, all members of the class action must have suffered the same injury. The plaintiffs were trying to "literally sue about millions of employment decisions at once." According to the Court,
"without some glue holding the alleged reasons for all those decisions together, it will be impossible to say that examination of all the class members' claims for release will produce a common answer to the crucial question why was I disfavored."
To prevent an over-encompassing class action claim, the Court noted that the Plaintiffs would have to provide "significant proof" that Wal-Mart "operated under a general policy of discrimination." The only proof offered by the Plaintiffs was expert testimony which claimed there was a social culture at Wal-Mart that makes it vulnerable to gender bias. The expert could not say how regularly stereotypes or discrimination play a role in the decision-making processes. Without more specific evidence, the Court ruled that this was not significant proof and held that the class action was not in compliance with Rule 23.
Monday, June 20, 2011
J.D.B. is a 13-year-old boy who was interrogated by police at his middle school when he was suspected of theft. He admitted to stealing, but later argued that his confession could not be used because the police did not recite his Miranda rights to him. Specifically, he argued that because of his age, he did not reasonably believe he was free to leave during the interrogation.
The Court, in a 5-4 decision authored by Justice Sotomayor, agreed with J.D.B. and held that age can be used as a factor for determining whether a child is in custody. The reasoning is mainly because of the obvious psychological differences between children and adults and the increased vulnerability of children. Most children are more easily intimidated by authority figures than adults, and would be more likely to feel they could not leave an interrogation until they were told to do so. Their inability to withstand coercion requires officers to use their "common sense" when deciding whether to recite the warnings.
The Court also held, however, that age may not always be relevant. It will be relevant when the child is obviously of a young age, or when the police officer knows the child is a minor.
The dissenting justices fear that this new test marks the continuation of the erosion of Miranda warnings. They believe this ruling will be hard for police to follow and fear that they will soon be required to examine other types of personal characteristics of a suspect before interrogating them.
Friday, June 17, 2011
The United States Supreme Court recently held that drug rehabilitation is no longer an appropriate reason for a longer prison sentence. Tapia was given a longer sentence because the Judge wanted to recommend her for the 500-hour drug treatment program offered in U.S. Prisons. The Judge believed Tapia would have a better chance to get into the program if she had a longer sentence, but he could not guarantee Tapia a spot in the program.
Tapia argued that section 3582(a) of the Sentencing Reform Act (SRA) precludes Judges from considering rehabilitation as a factor when deciding the length of a prison sentence. 3582(a) states:
"The Court, in determining whether to impose a term of imprisonment, and, if a term of imprisonment is to be imposed, in determining the length of the term, shall consider the factors set forth in section 3553(a) to the extent that they are applicable, recognizing that imprisonment is not an appropriate means of promoting correction and rehabilitation."The Court looked to the plain meaning of the statute to determine Congress' intent. They began by stating that the definition of "recognize" is "to acknowledge or treat as valid" and that the definition of "appropriate" is something that is "suitable or fitting for a particular purpose". Given these definitions, the Court reasoned that Congress would have them interpret this section as meaning, "that the courts should acknowledge that imprisonment is not suitable for the purpose of rehabilitation."
With this interpretation of the statute, the Court held that rehabilitation is not an appropriate reason to impose a longer prison sentence. The Court also noted that if Congress had intended on allowing courts to use rehabilitation as a reason for a longer prison sentence, they would have provided the courts with the authority to ensure those defendants a spot in the 500-hour drug program. Since Congress has not granted this authority, the plain meaning of the statute precludes judges from imposing longer prison sentences because of rehabilitation.
Monday, June 13, 2011
Sykes had two previous convictions of armed robbery and one for vehicle flight which violates Indiana's Resisting Arrest law. The question for the Court was whether vehicular flight should be considered a violent felony, the result of which would increase Sykes' sentence to a minimum of 15 years.
The Court examined the relevant provisions of the ACCA which state that an offense is deemed a violent felony if it is a crime punishable by more than one year of imprisonment and that:
i) has as an element the use, attempted use, or threatenedSpecifically, the Court had to decide if vehicular flight is conduct that "presents a serious potential risk of physical injury to another." Using what it calls the "categorical approach", the Court looked to the nature and risk of the crime generally, not at the specifics of the crime committed by the particular defendant. Comparisons of vehicular flight to the specific crimes of arson and burglary made it clear that vehicular flight involves some of the same risks as the specific crimes listed. Police chases have always been dangerous, posing a serious risk of harm to the driver, the police officer, and bystanders. Some have produced seriousinjuries or, in some instances, were fatal. Seeing no difference in the serious risks of harm posed by vehicular flight and the specific crimes listed in the statute, the Court held that vehicular flight should be considered a violent felony.
use of physical force against the person of another; or
ii) is burglary, arson, or extortion, involves the use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another.
Friday, June 10, 2011
|(Photo courtesy of Meli.)|
We hold that the term “cocaine base” as used in §841(b)(1) means not just “crack cocaine,” but cocaine in its chemically basic form.In this case, out of the First Circuit, DePierre attempted to distinguish crack cocaine from other types of base cocaine and argued that the federal minimum guidelines only applied to crack. The Supreme Court rejected that argument finding that the mandatory minimums apply to all forms of base cocaine.
The decision does not mean that powder cocaine is covered by these mandatory guidelines as the powder form of cocaine was not contemplated to be included by congress and is a different chemical form of cocaine from base cocaine.
Wednesday, June 8, 2011
Sunday, June 5, 2011
- The Six Count Indictment: US v. John Reid Edwards.
The indictment, predictably, is a retelling of the cover up of Edward's affair with Rielle Hunter. Significant and new are the descriptions of specific activities that Edwards himself directed others to misuse campaign contributions, $925,000, i.e. that Edwards' aid's wife falsified check memo lines for such things as antiques and furniture. Purportedly these checks were written as campaign expenses but in actuality it is alleged that these were continuing payments to Rielle Hunter and for her benefit while pregnant with Edwards' child. These are the kinds of details that, if proven, a jury will convict on in a heartbeat. The rest of the indictment details examples of his cover up, from chartered flights to conversations, showing the arrogance of a man using campaign funds for personal gain, and he did so because he thought the law doesn't apply to him. How else to explain the obvious abuses he took with federal campaign contributions? It is not like he lacks money.
The Washington Post reports that:
the payments, which covered Hunter’s living, medical and other expenses, are at the heart of the dispute. Prosecutors say that they were campaign contributions because they were meant to prevent Edwards’s 2008 presidential bid from collapsing if the affair was discovered. They say the contributions also exceeded legal limits.
If it were not paying for Reille Hunter's life style and pregnancy with campaign contributions that motivated a team of prosecutors to indict, then it was how Edwards suggested a staffer claim the child as his own. Later, Edwards directed the campaign to pay the staffer and then to pay hush money to Reille Hunter. How could the same man who claimed to be the champion of "sons of mill workers across this country" have drifted so far away from the basic values of honesty and integrity that many believed they had seen in him?
"And what we students of history always learn is that the human being is a very complicated contraption and that they are not good or bad but are good and bad and the good comes out of the bad and the bad out of the good, and the devil take the hindmost."
- Robert Penn Warren, All the King's Men
Friday John Edwards was indicted by a Federal Grand Jury in Raleigh. News agencies across the country are reporting on the spectacular fall of a once favored son of the South: Tennessean, Washington Post, Los Angeles Times, Hufffington Post blog, and the WSJ blog.
Reille Hunter told her side in an interview with GQ magazine last April.
Saturday, June 4, 2011
The Tennessean reports that Netflix Sharing is now a crime in Tennessee.
Maryland v. Shatzer answered the question of whether a detained suspect who has asked to speak with an attorney can ever be questioned again without a lawyer present. The Court held that law enforcement could resume interrogation if 14 days have passed since the suspect last expressed a desire to have a lawyer present and the suspect has waived his right to an attorney for the current interrogation.
Friday, June 3, 2011
The Tennesean reports today on the Court's deciding whether a woman who earns $72,000 a year should get $15,000 a year in alimony for the rest of her life or until she remarries. The case is important because it could determine how money is awarded in divorce cases across the state. The husband's income is nearly $140,000, including his base salary and bonus.
In the lower courts, a Sumner County Judge split the couple’s assets nearly evenly and ruled that the wife did not deserve alimony. The couple have two adult children. The Tennessee Court of Appeals unanimously overturned the trial court and ordered the husband to pay $1,250 a month in alimony. The Husband appealed, and the Tennessee Supreme Court took the case.
In accepting this case the Supreme Court should clear an unsettled area of law by setting guidelines on when courts should award alimony on a permanent or limited basis.
The case is Gonsewski v. Gonsewski, Sumner County.