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Supreme Court OK’s Judge’s use of facebook / twitter

jerrykaltenbach

You can "like" me now!

On December 3, 2010, the Ohio Supreme Court’s Board of Commissioners on Grievances & Discipline issued an advisory opinion saying that Ohio Judges can have facebook friends and twitter followers that are also attorneys appearing before them in Court.  The Supreme Court’s website issued this release:

In one of the most comprehensive and detailed examinations in the nation, the Supreme Court of Ohio’s disciplinary board has issued an advisory opinion examining the ethical implications of judges using social media sites like Facebook and Twitter.

The opinion from the Board of Commissioners on Grievances & Discipline advises judges that social media use is permitted but must be done with caution, and it offers wide ranging, specific guidance to judges on how to navigate the new waters of social media without violating judicial canons that require judges to avoid even the appearance of bias or impropriety.

“This is a topic of great interest to the legal community because, like the rest of the nation, more judges are experimenting with social media in both their personal and professional lives,” said Jon Marshall, the board’s secretary. “For those judges who choose to use this technology, we hope this opinion gives them practical guidance on how to do so and maintain their obligations under the Code of Judicial Conduct.”

A recent national study found that 40 percent of judges report using social media profile sites like Facebook and LinkedIn, a proportion roughly equal to that in the general U.S. adult population. Smaller numbers reported using microblogging sites like Twitter and other less popular social media, but the numbers are expected to grow.

Opinion 2010-7 finds that a judge may be a “friend” on a social networking site with a lawyer who appears as counsel in a case before the judge, but cautions: “As with any other action a judge takes, a judge’s participation on a social networking site must be done carefully in order to comply with the ethical rules in the Code of Judicial Conduct.”

Some very logical restrictions include that (1) a  judge may not give anyone legal advice through social media sites, (2) judges may not comment on matters pending before the judge, and (3) judges cannot communicate with an attorney appearing before the judge about the matter.  The advisory opinion goes on to say that a judge should disqualify herself from a proceeding if her social media relationship with a lawyer on that case creates bias or prejudice.  All very fair rules and it demonstrates the pervasive qualities of social media and that, like it or not, it is here to stay.

You can find the entire advisory opinion here.

Thomas Parenteau could not save himself – surprised?

jerrykaltenbach 4 Comments

"Fee-fi-fo fum," benching your lawyer is pretty dumb.

Back in June, I wrote this post about the Thomas Parenteau trial where Parenteau (not a lawyer) was representing himself against 13 federal charges in a multi-million dollar fraud scam.  I discussed what a bad idea that was.  As it turns out, the jury convicted Parenteau of 11 of the 13 charges against him.  Parenteau was acquitted of two money-laundering charges.  I guess he left the stolen money dirty and maybe that’s why he was caught in the first place.

Parenteau was convicted on 11 counts including wire fraud, tax fraud, obstruction of justice, and witness tampering.

I am a firm believer that criminals should pay the price for their crimes and should not “get off easy.”  That belief stands whether you are a starlett like Lindsay Lohan who is getting jail time for violating probation or a less-well-known real estate scammer like Thomas Parenteau.  However, one big difference is that Ms. Lohan was represented by an attorney who will likely succeed in getting Lohan’s actual jail time reduced to a fraction of her sentence, while Mr. Parenteau’s ill-advised courtroom antics probably did nothing to help his cause.

According to Kathy Lynn Gray’s recent article in The Columbus Dispatch, the trial was expected to last six weeks.  It lasted two months and a lot of that extra time was a result of Parenteau’s decision to represent himself.

Trials are like traffic.  When the jury is taking in evidence like a nonstop cruise down I-71 at 65 MPH, the jurors are comfortable, attentive, and understanding.  But when the jury’s evidence show hits a traffic jam brought on by constant objections, improper questions, recesses, sidebars, and antics, the jurors become irritable, restless, fatigued, and annoyed.  You just want to lay on that horn and get the people in front of you moving to arrive at your destination.

The Parenteau trial was no cruise down I-71 with Parenteau’s appointed counsel locked in the trunk of the car.  Instead, Parenteau tells the jury “I’m an entrepreneur, not a criminal” and “fee-fi-fo-fum, the government says I am a cheap bum.”  Well, guess what?  Saying you’re an entrepreneur and and not a criminal is something I think Al Capone would say.  Spouting off “fee-fi-fo-fum” makes me think of an ogre, a bully – basically not someone with whom I want to be friends.  These statements do no paint a picture of a victim of circumstance or generate much sympathy.

I do not have any reason to believe that Parenteau was wrongfully convicted.  All evidence to the contrary.  But, competent legal counsel can mean the difference between life in prison and maybe seeing the dawn on an open field of freedom one day.

Parenteau will be sentenced in a few weeks.  If he has any appealable issues, I wonder if he’ll let his attorneys finally get involved.

Class Action against Apple and AT&T to proceed

jerrykaltenbach

I have an iPhone.  I love it.  I have AT&T service on my iPhone because I have to.  I don’t love it.

I honestly don’t know if I would love the iPhone more on Verizon, T-Mobile, Sprint, or any other carrier.  A device so powerful, so popular, and so demanding of bandwidth has the capacity to cripple any carrier.  That’s why I hope all the carriers will have the iPhone someday.  I may not even switch from, AT&T.  At least, not right away.  I will wait to see how network traffic across carriers is affected.  Fewer iPhones on multiple networks will should reduce traffic and dropped calls. Also, competition amongst the communication giants should reduce the “sticker shock” when I get the monthly bill.

These topics and more, including anti-trust and claims of secret deals between Apple and AT&T, are the subject of many lawsuits filed since 2007 and now consolidated in the Northern District of California.  The AP reported this morning:

SAN JOSE, Calif. – A federal judge says a monopoly abuse lawsuit against Apple Inc. and AT&T Inc.’s mobile phone unit can move forward as a class action.

The lawsuit consolidates several filed by iPhone buyers starting in late 2007, a few months after the first generation of Apple’s smart phone went on sale.

An amended complaint filed in June 2008 takes issue with Apple’s practice of “locking” iPhones so they can only be used on AT&T’s network, and its absolute control over what applications iPhone owners can and cannot install on the gadgets.

The lawsuit also says Apple secretly made AT&T its exclusive iPhone partner in the U.S. for five years. Consumers agreed to two-year contracts with the Dallas-based wireless carrier when they purchased their phones, but were in effect locked into a five-year relationship with AT&T, the lawsuit argued.

The actions hurt competition and drove up prices for consumers, the lawsuit claims.

Apple and AT&T have not commented on the terms of their deal. In its response to the complaint, Cupertino,California-based Apple said it did not hurt competition.

In court documents filed July 8, Judge James Ware of the U.S. District Court for the Northern District of California said parts of the lawsuit that deal with violations to antitrust law can continue as a class action. The class includes anyone who bought an iPhone with a two-year AT&T agreement since the device first went on sale in June 2007.

Apple has sold more than 50 million iPhones in the last three years. The company does not specify how many have gone to U.S. customers.

Ware dismissed other claims against Apple, among them allegations that the company broke laws when an update to the iPhone’s operating software caused some phones to stop working and deleted programs that users had purchased.

The lawsuit seeks an injunction to keep Apple from selling locked iPhones in the U.S. and from determining what iPhone programs people can install. It also seeks damages to cover legal fees and other costs.

We will continue to follow this story on the blog.  Would you like links to filed court documents from this case?  Let us know in the comments and we will provide.

The Second Amendment’s Arms get Beefier

jerrykaltenbach

Woo-hoo! Mr. Blasty gets to stay at home with me!

In a 5-4 decision issued today by Justice Samuel Alito in McDonald v. Chicago, the U.S. Supreme Court signaled the strengthening of the Second Amendment’s right to keep and bear arms with respect to a state law out of Illinois.  For the AP, Mark Sherman writes:

WASHINGTON — The Supreme Court held today that the Constitution’s Second Amendment restrains government’s ability to significantly limit “the right to keep and bear arms,” advancing a recent trend by the John Roberts-led bench to embrace gun rights.

By a narrow, 5-4 vote, the justices also signaled, however, that some limitations on the right could survive legal challenges.

Writing for the court in a case involving restrictive laws in Chicago and one of its suburbs, Justice Samuel Alito said that the Second Amendment right “applies equally to the federal government and the states.”

The court was split along familiar ideological lines, with five conservative-moderate justices in favor of gun rights and four liberals opposed. Chief Justice Roberts voted with the majority.

Two years ago, the court declared that the Second Amendment protects an individual’s right to possess guns, at least for purposes of self-defense in the home.

That ruling applied only to federal laws. It struck down a ban on handguns and a trigger lock requirement for other guns in the District of Columbia, a federal city with a unique legal standing. At the same time, the court was careful not to cast doubt on other regulations of firearms here.

Gun rights proponents almost immediately filed a federal lawsuit challenging gun control laws in Chicago and its suburb of Oak Park, Ill., where handguns have been banned for nearly 30 years. The Brady Center to Prevent Gun Violence says those laws appear to be the last two remaining outright bans.

Lower federal courts upheld the two laws, noting that judges on those benches were bound by Supreme Court precedent and that it would be up to the high court justices to ultimately rule on the true reach of the Second Amendment.

The Supreme Court already has said that most of the guarantees in the Bill of Rights serve as a check on state and local, as well as federal, laws.

Monday’s decision did not explicitly strike down the Chicago area laws, ordering a federal appeals court to reconsider its ruling. But it left little doubt that they would eventually fall.

Still, Alito noted that the declaration that the Second Amendment is fully binding on states and cities “limits (but by no means eliminates) their ability to devise solutions to social problems that suit local needs and values.”

The Opinion effectively strikes down Chicago’s hand gun ban, however the case was remanded back to the Illinois’ federal court for further proceedings.  The five Justices concurring in the Opinion are Chief Justice John Roberts and Justices Antonin Scalia, Anthony Kennedy, and Clarence Thomas in addition to Alito.  The dissenting Justices were John Paul Stevens, Stephen Breyer, Ruth Bader Ginsburg, and Sonia Sotomayor.  You can read their bios here.

If you have some time on your hands, you can read the Court’s entire 214 page opinion here.  The Court’s opinion is actually 51 pages, with the rest dedicated to a concurring opinion by Scalia, Thomas’ opinion concurring in part,  and dissenting opinions by Stevens and Breyer.

What do you think?  Should states be able to ban handgun possession by private citizens, or does the Second Amendment guarantee our right to keep guns?

Speeding tickets based on a guess are OK, Ohio Supreme Court says

jerrykaltenbach 1 Comment

If I guess 5 MPH over, you get a green frog. If I'm under, you get a $100 fine.

In a 5-1 decision, the Ohio Supreme Court upheld a conviction on a speeding ticket solely based on the arresting officer’s guess as to how fast the car was moving.  No radar.  No lasers.  Just a cop that said, “Man, it looks like he’s going 79 miles per hour in this 60 mile per hour zone.”  That’s right, 79.  Not 75 and certainly not 80.  Exactly 79.

Officer Christopher R. Santimarino testified that he had worked traffic enforcement since 1995 and received specialized training to visually estimate the speed of a vehicle.  This training means that Santimarino was able to correctly guess the speed of a vehicle within 4 miles per hour of its actual speed. It must have been plain luck that Santimarino did not write the driver a ticket for going 64 in a 60.

The real kick in this case is that Santimarino claimed that his radar gun clocked the driver at 82 miles per hour – but he could not produce a copy of his radar training certificate on the day of trial so that evidence was thrown out.  But the trial court allowed his guess to be considered as evidence and convicted the driver based on that alone.

From an academic standpoint, I understand what Justice Maureen O’Connor is saying in her opinion.  She’s saying that a properly trained police officer’s account of the event is admissible evidence so the jury should be allowed to hear the officer’s guess.  Maybe that is admissible persuasive evidence, but maybe a guess is not “sufficient evidence” to convict.

Ohio appellate courts were split on this “guess evidence.”  Six appellate districts have held that a guess is good enough and three districts have held that a guess is not enough to overcome the presumption of innocence and the burden of proof beyond a reasonable doubt for conviction.

The theory here is that machines, like radar guns, are exacting instruments, but humans can make mistakes – even the highly trained ones.  Just ask Major League umpire Jim Joyce who mistakenly called a Cleveland Indians runner safe at first base robbing the Detroit Tigers’ Armanda Galarraga of a perfect game this season.  Joyce has officiated major league baseball games for 21 years including All-Star games, division championships, league championships, and World Series games.  The Indians runner was out by a mile and Joyce called him safe based solely on his visual observation and standing just a few feet away.  He later acknowledged his mistake upon seeing the replay footage.  Human error.  Highly trained human error.

You can’t reverse a bad call like Joyce’s in baseball because it is accepted that human error is a part of the game.  But, is human error an accepted part of our justice system to the point where an erroneous allegation can result in a criminal conviction?  Our Nation’s “presumption of innocence” and the necessity for “proof beyond a reasonable doubt” does not sound like guess work to me.

You can read the decision in Barberton v. Jenney right here.

Defending yourself in court: the quickest road to ruin.

jerrykaltenbach 6 Comments

Now, I know what you’re thinking.  Didn’t Jerry write an article a couple of months ago with tips on how to represent yourself in small claims court?  Yes, I did.  But there’s a big difference between $1,200 in damage to your car and a federal indictment for a bajillion counts of fraud.  Yes, bajillion is a highly technical legal term.

When I was clerking in the Franklin County Court System, I observed a murder trial where the defendant insisted on representing himself.  It reminded me of the courtroom scene from “Airplane 2” – it was just ridiculous.  The Judge was beyond irritated to the point where the Judge’s forehead vein was having a better time than the jury.  When you are on trial for your life, or in a civil trial that can affect your entire life, I firmly believe in the old adage that one who is his own lawyer has a fool for a client.  I’m writing this post after reading John Futty’s article in today’s Columbus Dispatch about a man on trial for fraud.  He’s representing himself despite repeated warnings not to do so from the Judge, his court appointed attorneys, and probably every single person he has come across that knows about this case.  As someone who has tried several cases for clients and has observed a trial where an accused has represented himself, I can say with confidence that this will not end well for Thomas Parenteau.  For the Dispatch, Mr. Futty writes:

As Thomas Parenteau prepared for a second day of cross-examining his former mistress in a multimillion-dollar fraud case last week, he received a harsh critique from the federal judge handling his trial.

"I'm not a lawyer, but I play one in real life at a federal trial where I stand accused."

“You stepped on some land mines yesterday that wounded you pretty good,” Judge Michael H. Watson told Parenteau before bringing the jury into the courtroom for more testimony.

Watson urged Parenteau to reconsider his decision to represent himself, a recommendation he has made more than once since the jury trial began three weeks ago in U.S. District Court in Columbus.

Parenteau hasn’t taken the judge’s advice, insisting instead on exercising his constitutional right to handle his own defense.

A 1975 U.S. Supreme Court ruling that upheld a defendant’s right to self-representation “has been the bane of judges and prosecutors,” said Joshua Dressler, a professor at Ohio State University’s Moritz College of Law who specializes in criminal law. Continue reading →