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American Indians Killed at Higher Rate Than Anyone Else in USA--But No One Talks About It

In These Times' Stephanie Woodard had a piece earlier this month about how American Indians are killed by police at a rate higher than any other group in the United States. American Indians are 3.1 times more likely to be killed by police than whites.

The next group that is most likely to be killed by police are blacks. But the amount of media coverage is much higher for blacks killed by police than for American Indians, Woodard reports, even though blacks and American Indians both experience violence and discrimination: "Native Americans’ experiences of violence and discrimination in the United States often parallel those of African Americans. Federal investigations have found that on the borders of reservations, Native Americans are treated as second-class citizens by police and public agencies in ways that echo the experience of black Americans in towns like Ferguson, Mo."



Personal Injury Litigant Accused of Falsely Claiming Mother Died to Excuse Court Absence

Submitted by Amaris Elliott-Engel on Wed, 09/14/2016 - 10:46

Here's a recent piece I wrote for the Connecticut Law Tribune about a bizarre scenario: a litigant suing for alleged personal injury has been charged with perjury because he allegedly falsely claimed his mother had died in order to excuse his absence from court. Sometimes, you can't make the world of law up.


An Arizona man sued Dollar Tree Stores, alleging that he fell due to a hole in the floor of one of the chain's stores in Hartford County.

But Kenneth Rowe has fallen into an even bigger hole after he apparently falsely claimed that his mother recently died and that was why he failed to show up in court for his civil lawsuit.

That so irked Connecticut Superior Court Judge Robert E. Young that he ordered that Rowe's testimony be referred to the state's attorney for the New Britain Judicial District to investigate if Rowe perjured himself.

In late August, an arrest warrant was issued for Rowe's arrest on one count of perjury, according to a report State's Attorney Brian Preleski sent to the judge.

Young has yet to decide if he will sanction Rowe.

Rowe started his lawsuit in February 2014, alleging that he fell Dec. 8, 2013, due to a hole in the rear of the Dollar Tree store in Rocky Hill. He claimed he had a lumbar-spinal injury and hurt his left ankle.

According to a court transcript, Rowe's first lawyer, Paul J. Garlasco of the Law Offices of Paul J. Garlasco, had trouble keeping in touch with his client, and he asked Dollar Tree to make a settlement offer of $5,000 "in order to entice [Rowe] back into communication."

When Garlasco relayed the settlement offer to Rowe late last year, Rowe allegedly hung up on his attorney. Shortly before the case was supposed to go to trial, Garlasco moved to withdraw from the case.

Rowe failed to show up at the trial management conference on Dec. 8, 2015. Then the judge, Garlasco and Nicole J. Tung, Dollar Tree's lawyer from Halloran & Sage, agreed to a judgment of nonsuit being entered against Rowe.

Rowe engaged John A. Locus, a Rocky Hill attorney, who filed a motion to reopen the judgment of nonsuit. In the motion, Locus wrote that his client was caring for his mother in the fall of 2015 after she experienced four strokes and dementia. Rowe further claimed he transferred his mother from Springfield, Illinois, to an assisted living facility in Scottsdale, Arizona, and continued to care for her until her death on Feb. 5, 2016.

"It was both reasonable and compassionate for the plaintiff to tend to his mother in her final months as her health deteriorated," Locus wrote. "To preclude the plaintiff from reopening his case would deny him his rightful day in court."

The judge held a hearing on whether to overturn the nonsuit in May. According to a court transcript, Rowe testified he had told Garlasco he couldn't make the conference because he was caring for his ailing mother.

According to the court, however, Garlasco only said that all communications had broken down with his client and he needed to withdraw from the case.

While cross-examining Rowe, Tung presented an affidavit of a defense investigator who contacted Rowe's mother, Theodora Rowe, three months after she had allegedly died. According to the law firm, it received an anonymous tip that Rowe's mother was alive and well in Chicago and a phone call proved it to be true.

Young immediately asked for a recess at the spring hearing. After the recess, Locus said that Rowe consented to withdraw the motion to reopen his case.

"We have a situation here where either Theodora Rowe is dead or alive," Young said. "She can't be both. And if, in fact, Theodora Rowe is alive, and Mr. Rowe—Ken Rowe is here today sitting next to me under oath and testifying to the death of his mother, that would be a very serious fraud upon the court."

Rowe could not be reached for comment. Locus did not respond to a request for comment, while Tung declined comment.


Politician's Suicide Raises Questions About Unsealing Criminal Charge

The Rochester Democrat & Chronicle's Gary Craig has highlighted an interesting legal question in the wake of a state assemblyman's suicide. Bill Nojay committed suicide before a federal criminal charge against him was unsealed. Now what? Can that charge be made public even though the criminal defendant is dead? 

One local attorney said that, under the First Amendment, a criminal charge against a public figure like Nojay should be unveiled. That hasn't happened yet, but the D&C is going to make that argument in federal court.

The D&C reports that Nojay may have allegedly taken money from an attorney client-trust account. 

Police Partner with Law Firms in Asset Seizure Cases

The City of London Police are embarking on a "radical" pilot project in which the details of fraud suspects will be shared with law firms so they can try to use the civil courts to seize the suspects' assets, The Guardian's Vikram Dodd reports.

Questions are being raised on whether the profit motive for the law firms could damage the fairness of the process. Questions are also being raised on the wisdom of transferring punishment from the state system to private law firms and to civil courts.

British law enforcement is turning to the law firms and civil courts because of the high volume of cybercrime.

Court Overturns Employment Ban for People with Criminal Convictions

Submitted by Amaris Elliott-Engel on Sun, 02/21/2016 - 22:11

How do you overcome the ax murderer taking care of Grandma problem?

Lawyer Peter H. “Tad” LeVan knows a thing or two about that.

A few weeks ago, the Pennsylvania Commonwealth Court, sitting en banc, ruled that the state's ban on former convicts working in elder care was unconstitutional.

LeVan gave me a recent interview about this litigation. It started with a challenge to the law's constitutionality on an individual basis; the Pennsylvania Supreme Court ruled that the law’s “employment ban was not rationally related to the Commonwealth’s legitimate interest in protection elderly citizens.” LeVan won that case in 2003. But then the Pennsylvania General Assembly never moved to amend the law after the court’s ruling.

So, in the spring of 2015, Levan, his co-counsel and his clients challenged the law on its face as unconstitutional.

It's always easier to attack the constitutionality of law by arguing that it’s unconstitutional “as applied” to particular plaintiffs, than arguing that the law is unconstitutional for everyone on its face.

The Pennsylvania Older Adults Protective Services Act was passed in the 1990s to create a lifetime ban on employment for convicted murderers and rapists in healthcare facilities; people convicted of felony drug violations and several other crimes were banned for a decade from working in healthcare facilities. The law, which was amended in 1997, required anyone who had been working at an eldercare facility for a year or less to be fired. However, people who had been working for a year or more could keep on working for their present employer.

By 2015, the social science had developed enough on reintegration and recidivism to support a challenge that the ban on people with criminal convictions working in elder care had zero “scope of rationality,” LeVan said.

“Social science research conducted subsequent to the [prior case] shows that the lifetime employment ban is built on a faulty premise because the risk of recidivism declines over time and eventually ‘loses any meaningful value in predicting future criminal conduct,’” Judge Mary Hannah Leavitt wrote for the Commonwealth Court.

The court ruled that the employment ban violates the Pennsylvania Constitution.

“There is simply no rational basis to treat those employed for a year in a facility providing services to older adults as of July 1, 1998, as having rehabilitated themselves following their criminal convictions solely because of the amount of time they worked in one facility such that they do not pose a threat to older adults, but treat all other employees and applications as incapable of rehabilitation and forever a threat to adults,” Leavitt opined.

The two sides also disagreed on the correct standard for considering the plaintiffs’ challenge to the constitutionality of the employment ban.

Lawyers for the Commonwealth of Pennsylvania argued that a law can be declared facially unconstitutional only if there is no set of circumstances under which the statute would be valid. LeVan argued on behalf of his clients that a statute is facially unconstitutional if a substantial number of its potential applications are unconstitutional.

The Commonwealth Court followed the U.S. Supreme Court’s ruling in Washington State Grange v. Washington State in State Republican Party in deciding that challengers who argue that a law is unconstitutional on its face need only demonstrate that a substantial number of the “‘challenged statute’s potential applications are unconstitutional.’”

Illinois Supreme Court Opens Door to Expert Testimony on Eyewitness Evidence

The Illinois Supreme Court has issued a ruling that could lead to more expert testimony on the unreliablity of eyewitness evidence, the Chicago Tribune's Dan Hinkel reports.

The reversal of defendant Eduardo Lerma's conviction of murder was affirmed by the Illinois Supreme Court. The trial judge was found to have abused his discretion by barring defense lawyers from calling experts about the fallibility of eyewitness evidence.

Koch Brothers, White House Continue to Press for Criminal Justice Reform

Koch Industries, the funding powerhouse behind many conservative causes, and President Barack Obama's administration are continuing to push for criminal reform, The Washington Post's Juliet Eilperin reports. Both sides have agreed that a proposed change to white-collar prosecutions should be jettisoned if it will imperil sentencing reform in Congress.

The change would require prosecutors to prove that defendants "'knew or had reason to believe the conduct was unlawful'" in cases like corporate pollution or food tainting.

But the change to the mens rea standard is not in the Senate version of the sentencing-reform bill, and Koch Industries general counsel Mark Holden said having mens rea reform would not impede the Koch brothers supporting the package.

Delaware AG Pushing for Video Recording of All Interrogations

Delaware Attorney General Matt Denn is close to issuing guidelines that would suggest that police interrogations--from start to finish-- be recorded, The News Journal's Jessica Masulli Reyes reports. The reason for the move is because advocates say recording interrogations helps avoid false confessions.

Advocates also said the guidelines should be made mandatory by stating prosecutors wouldn't use statements obtained from non-recorded interrogations. Denn said law enforcement would be incentivized to follow the guidelines because "'adhering to this policy increases the odds we could successfully prosecute a case."'

Arson Science Debunked After Decades of Misuse

The ABA Journal's Mark Hansen has a cover story about how two decades of research into the cause of fires has shown that many criminal defendants have been wrongfully convicted of arson-related crimes because of faulty evidence admitted against them. Arson expert John Lentini estimates that there may be a few hundred innocent people in prison for arson.

Arson cases are "particularly difficult to undo," Hansen reports. "Arson cases are not like typical murder or rape cases, where DNA evidence may still exist that not only can establish one’s innocence but also implicate another. In arson cases, evidence is usually consumed in the fire. And a fire investigator can rarely rule out arson as the cause of a blaze, which is often a requirement for overturning a conviction.

Justin McShane, a Pennsylvania lawyer who has won one man's freedom from allegedly killing his mentally ill daughter in a fire, said Pennsylvania and other states should follow the lead of Texas and California in allowing defendants to get new trials if the underlying forensic science used to convict them is shown to be flawed.

Mistrial Declared in Dewey & LeBoeuf Criminal Trial

A mistrial was declared today in the trial of former executives at a leading white shoe law firm that melted down amid financial irregularities and partner defections, Reuters' Brendan Pierson reports. The New York Supreme Court jury said it was hopelessly deadlocked on charges against former Dewey & LeBoeuf Chairman Steven Davis, Executive Director Stephen DiCarmine and Chief Financial Officer Joel Sanders, "including grand larceny, scheme to defraud and violating New York's securities law, the Martin Act."

The jury deliberations--at 22 days--are believed to be the longest in the state's history.


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