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I love teaching and sharing knowledge. The Internet is a free passage to an amazing amount of knowledge provided by some of the greatest minds of the day. MIT, Oxford and other universities are now sharing lecture notes with the public and allowing us to dip into the overflowing fonts of wisdom that abound. Yale is but one university that has put actual lectures on the web.

Tuesday, August 30, 2005

Medical Marijuana in California is still good state law

Do you see an analogy between this action and the Silver Platter era?

The New York Times
August 30, 2005
California Patrol Won't Seize Marijuana Used as Medicine

OAKLAND, Calif., Aug. 29 - In a turnaround, one of the state's biggest law enforcement agencies says it is taking a hands-off approach to the possession and use of marijuana for medical purposes.

The new policy, by the California Highway Patrol, states that an "individual is to be released and the marijuana is not to be seized" if the person qualifies under state law to possess marijuana for medicinal purposes. It also says that officers "shall not conduct traffic enforcement stops for the primary purpose of drug interdiction" involving the authorized use of medical marijuana.

Though data on arrests is incomplete, medical marijuana advocates say the highway patrol had been responsible for more arrests of patients and caregivers than any other agency in the state.

A spokesman for the highway patrol said on Monday that the new rules were issued last week in response to a ruling by the United States Supreme Court in June and legal action by Americans for Safe Access, an advocacy group based here in Oakland that sought a court order against the highway patrol's previous policy of arresting patients and confiscating their marijuana.

"There were numerous field inquiries in response to the Supreme Court ruling," said the spokesman, Lt. Joe Whiteford. "They wanted clarification of the law, and we wanted to make sure all of our officers are on the same page."

At a news conference here called by Americans for Safe Access, patients and their advocates described the policy change as a breakthrough and predicted other law enforcement agencies would follow suit.

"It gives us renewed confidence that it is appropriate to bring these cases to court and that good things can come from doing so," said Joe Elford, a lawyer for Americans for Safe Access, adding that the group would file more lawsuits if the highway patrol "model is not replicated" across the state.

The Supreme Court, in Gonzales v. Raich, declared in June that medical marijuana patients are subject to federal prosecution even if they live in a state that allows medicinal uses of marijuana. The decision dealt a blow to medical marijuana users around the country, but it did not overturn laws in 12 states, including California, that allow some uses of marijuana.

Though voters approved California's medical marijuana law in 1996, it was only after the Supreme Court ruling that the highway patrol got sufficient legal guidance from the state to relax its enforcement, Lieutenant Whiteford said.

"There was a lot of ambiguity in the law," he said, "so basically it made it a little tough for law enforcement to come up with a solid policy to enforce it."

A spokeswoman for Attorney General Bill Lockyer said Mr. Lockyer sent memorandums to law enforcement agencies throughout the state reminding them "that California law still stands."

Under the California law, people can possess up to eight ounces of marijuana for medicinal purposes on the recommendation of a doctor. So-called caregivers are also permitted to possess and cultivate the marijuana for sick people.

"It was Lockyer's intention to help guide local agencies in looking at their internal policies," said the spokeswoman, Teresa Schilling.

The highway patrol's 7,100 sworn officers are responsible for enforcing traffic laws on state and county roads.

Lieutenant Whiteford said officers would still stop people if there was a "reasonable suspicion" of illegal drug activity, including driving under the influence of marijuana.

* Copyright 2005 The New York Times Company

Friday, August 26, 2005

You will want to read this one on technology and the law

This was in Today's USA today

It opens a number of areas for all of us to consider when thinking about technology and how the law may need refining to meet the needs of technology

Posted 8/25/2005 10:47 PM

CyberSpeak by Andrew Kantor

With technology, it's easy to break the law
Legally, it's been a gray week for me.

I took apart and repaired a 15-year-old, Freon-filled air conditioner without an EPA permit. I destroyed a wasp's nest with a makeshift flamethrower, using an aerosol can of cleaner "in a manner inconsistent with its labeling."

And then I went hardcore. Well, sort of.

I got myself a new laptop at work; I bring it home on weekends for safekeeping. It has built-in Wi-Fi networking, and I had a Wi-Fi hotspot in my house.

As soon as I turned it on, the laptop found and connected to a Wi-Fi network. This was cool; I appreciate how easy it works. But it was also odd, because my Wi-Fi network is encrypted. You need a password to access it, and I hadn't entered one.

I pulled up the list of networks, and there was mine, locked down, along with a few others, also locked. There was also one unencrypted one and I was connecting through it. The computer is set to search for the strongest network it can access and use it.

As I wasn't planning on bringing my machine home more than occasionally, it was easier to piggyback on this mysterious signal than to set up my own network.

There have been plenty of stories about how you should secure your wireless network, and doing so isn't difficult: a handful of clicks, really. Some neighbors had done so, but one had not, and now I was using his Internet connection.

Technically, this is theft. Sort of. (One reason it's not is that I figured out which neighbor it was, and I told him. He didn't mind.)

But it's a good example of how traditional definitions don't always fit in the brave new world. Was I stealing? I was depriving my neighbor of bandwidth. I was slowing his access. But what if he wasn't online? (In fact, he wasn't home at the time.)

More importantly, he was leaving his network unsecured, so any PC with a Wi-Fi card in the area would pick it up.

He doesn't pay for time on the network, so I'm not costing him anything. He wasn't using the network then, so I wasn't depriving him of anything. Free WiFi connections are all over, so I wasn't depriving an ISP of revenue.

Still, that hasn't stopped other people from getting arrested for "stealing" a signal.

Terrible twos

My two-year-old does not quite understand the concept of "don't scratch your DVDs." He's already ruined a few CDs, but DVDs are more expensive and we've been good about keeping them out of his (literally) grubby hands.

The smart thing to do is make a backup and keep the original safely put away. This way Sam only risks a 50-cent disk, not a $20 one.

There are a bunch of programs out there for making backups of your DVDs with names like 1Click DVD Copy, DVD Wizard Pro, and DVD Cloner.

I use one called DVD Decrypter, which I like for two reasons: 1) It's free, and 2) it can remove UOPs from the DVD before making a copy.

If you have a DVD player, you've bumped into UOPs, or "user operation prohibitions." They stop you when you try to do something to the DVD you're not supposed to do.

For example, some of Sam's disks come from a company that fills the first 10 minutes with commercials for its other products. The UOPs prohibit you from skipping them.

Can you imagine if you tried to read your child a book but couldn't start until you flipped through 20 pages of ads?

That's why, when I made a backup of these disks, I also removed the UOPs. Now Sam can be as rough as he likes and we can skip the commercials, too. The original is safe, and Sam is spared from yet more advertising.

Is what I did against the law? Not yet, but the entertainment industry wants it to be.

Gray area

My father sent me birthday greetings with a card that has a photo of a New York scene of Fort Washington Park with the George Washington Bridge in the background. I'm always happy to see scenes of New York, but this one made me stop.

From the angle the shot was taken, you could just see, under the bridge, the Little Red Lighthouse.

"Holy moly!" I said. Entirely by accident, he had sent me a card that brought back memories of one of my favorite childhood books. I scanned the card and sent it to a friend with a note, "Holy moly!"

Now that card was copyrighted art, yet here I was, scanning it and sending it to someone. Breaking the law or fair use? Obviously, fair use. I think. I wasn't profiting from it and wasn't depriving anyone of anything. It was in the context of a review.

Had it been a digital image I paid for, however, and not an analog one, that would have been exactly the kind of thing content creators want to prevent.

For now, though, I still have my copyrights — at least to some extent. (And let's not forget that the idea of copyright was to protect the rights of content consumers as much as those of creators. It's something the entertainment industry has paid Congress to ignore.)

I still can change my car's oil without a license, permit, or certification. I can still build a potato cannon and fix my air conditioner. I can still copy my CDs to my MP3 player and use my TiVo to watch Friday's Battlestar Galactica again.

But as technology marches on, our laws don't always march with it. They're written by men with agendas that are different than ours — men who don't understand (or have the incentive to understand) what they're trying to legislate.

So chances are there will come a day when there won't be room for men to meddle with technology. The sad thing is that we'll think what they do is against the law in the first place.

Andrew Kantor is a technology writer, pundit, and know-it-all who covers technology for the Roanoke Times. He's also a former editor for PC Magazine and Internet World. Read more of his work at His column appears Fridays on

Probably long Overdue

Jury instructions made simple
Panel to vote today on 700 newly worded judge's directives
- Bob Egelko, Chronicle Staff Writer
Friday, August 26, 2005

For decades, jurors in California have had to ponder mind-numbing instructions from the judge like this: "Circumstantial evidence is evidence that, if found to be true, proves a fact from which an inference of the existence of another fact may be drawn."

It's enough to cause even the keenest juror to furrow a brow in hopes of comprehending the nearly incomprehensible. But now relief appears to be in sight.

The state Judicial Council -- composed mostly of lawyers and judges -- is scheduled to vote today on nearly 700 newly worded jury instructions. Passage is a virtual certainty, which means that come January, judges will be talking in language everyone who speaks English can understand.

For example, the definition of circumstantial evidence will come with an illustration that goes something like this: If a witness saw someone come inside wearing a raincoat covered with drops of water, that's circumstantial evidence that it might be raining.

It's all part of an eight-year project to make instructions -- the orders judges give before sending jurors into their deliberations -- understandable to people who may have had no other contact with the court system.

"We say to jurors that there are rules that govern how you must decide, and then we do it in the least efficient way, by reading it to them, and in language that is very challenging to understand," said Carol Corrigan, a state appeals court justice in San Francisco and chairwoman of the 29-member task force that drafted the new instructions.

Instructions contain the legal rules jurors are supposed to apply as they work toward a verdict. In a criminal trial, the judge describes what the prosecutor must prove for a conviction, sets boundaries for defense claims such as self-defense and mental impairment, outlines the burden of proof for each side, and tells jurors what they can consider in evaluating witnesses and evidence.

Before the 1930s, individual judges in California formulated their own instructions to juries. But then a committee of the Los Angeles Superior Court began drafting statewide instructions, taking the language from the text of the laws and court rulings defining them. The instructions have been updated periodically, but they remain confusing for lay jurors, as the task force assigned to come up with the new, streamlined instructions found.

"California Supreme Court rulings and the Penal Code, especially, were not written to be understood by an audience of ordinary people," observed task force member Peter Tiersma, a linguist and law professor at Loyola University in Los Angeles.

Corrigan's favorite tale of misunderstanding was relayed to her by another judge, who -- as the law allows -- merely read his instructions to the jury without providing written copies.

The case was a murder trial in which jurors had to decide whether the defendant killed his victim with "malice," which has a complex definition involving an intentional act performed with conscious disregard for human life. After a couple of days of deliberations, Corrigan said, the jurors approached the judge in bewilderment, pointed out that the trial involved a fatal shooting, and asked, "What's this mallet you keep talking about?"

In that case, the judge presumably was able to clear up the confusion. But jurors may not always realize they've misunderstood an instruction, and judges, fearful that a creative answer could be grounds for appeal, may not always be helpful; Corrigan said a common response by judges who are asked for clarification is to "read the same instruction, only louder and slower."

Tiersma said it's possible that defendants have been wrongfully convicted because of misconstrued jury instructions.

"If the jury doesn't understand the difference between first- and second- degree murder, you might end up in prison for an extra five or 10 years," he said. Worse yet, he said, defendants may have been sentenced to death because penalty-phase jurors didn't understand such legalese as "weighing aggravating against mitigating circumstances."

Claims of confusing or misunderstood jury instructions are a recurring issue in criminal appeals, and occasionally prompt a court to overturn a conviction. But Chief Justice Ronald George, who appointed the task force, said it's possible that the courts haven't caught all the errors and that innocent people are sitting in prison as a result.

He said the new system should help.

The revised instructions are "designed to make jury service more user- friendly ... and an incidental benefit will be that it will improve the process," George said in an interview. "I think you may have fewer hung juries. "

Tiersma, who acted as a linguistic expert on the task force, said he encouraged its members to use active verbs, positive rather than negative definitions ("people sometimes forget" rather than "innocent misrecollection is not uncommon''), and ordinary words in place of legal terms whenever possible (a witness "deliberately lied about something important" instead of being "willfully false in one material aspect of his or her testimony'').

Today's vote comes two years after the Judicial Council approved a revision of jury instructions for civil cases, the product of another George- appointed panel. Corrigan, who chaired the task force on criminal instructions, said achieving clarity was a challenging assignment in a state whose population varies widely in language skills as well as legal sophistication.

The legal principles contained in the jury instructions, she said, are "the glue that holds the society together. But they shouldn't be a mystery, and we shouldn't speak of them in mysterious ways."
Proposed changes

Examples of how jury instructions will change if the recommendations are adopted:

Current: "A witness who is willfully false in one material aspect of his or her testimony is to be distrusted in others.''

Proposed: "If you decide that a witness deliberately lied about something important, you should consider not believing anything that witness says.''

Current: "Innocent misrecollection is not uncommon.''

Proposed: "People sometimes honestly forget things or make mistakes about what they remember.''

Current: "The law does not undertake to measure in units of time the length of the period during which the thought must be pondered before it can ripen into an intent to kill which is truly deliberate and premeditated.''

Proposed: "The length of time the person spends considering whether to kill does not alone determine whether the killing is deliberate and premeditated.''

Current: "A cold, calculated judgment and decision may be arrived at in a short period of time, but a mere unconsidered and rash impulse, even though it includes an intent to kill, is not deliberation and premeditation as will fix an unlawful killing as murder of the first degree.''

Proposed: "A decision to kill made rashly, impulsively or without careful consideration of the choice and its consequences is not deliberate and premeditated. On the other hand, a cold, calculated decision to kill can be reached quickly.''

E-mail Bob Egelko at

Page B - 1
©2005 San Francisco Chronicle

Tuesday, August 23, 2005

Wrongly Imprisoned and Compensation

Few freed by DNA evidence see payments from states
Monday, August 22, 2005; Posted: 10:14 a.m. EDT (14:14 GMT)
LOUISVILLE, Kentucky (AP) -- William Gregory still carries around the legal paperwork to prove he is not a rapist.
Gregory served seven years behind bars before DNA tests five years ago showed he could not have committed the crime.
He left prison with only a garbage bag filled with clothes and a television, and does not have much more today because Kentucky is not one of the 19 U.S. states that allow wrongfully convicted people to seek compensation.
Now, Gregory is suing the prosecutors and police that handled the investigation leading to his conviction.
"I don't have savings, I don't have nothing for retirement," Gregory said. "That's bad."
Of nearly 160 people freed from prison by DNA tests since 1989, 17 have been financially compensated by the states that locked them up. The federal government also has a compensation law.
Only in a few cases have the amounts been made public: Ohio paid $250,000 to a man wrongly imprisoned 11 years for rape and Massachusetts paid $500,000 each to three men, whose time behind bars ranged from 14 to 19 years, for mistakenly convicting them of rape.
Compensation laws often make it difficult for a person who has been exonerated to collect any money, said Richard Dieter, executive director of the Death Penalty Information Center in Washington.
Dieter pointed to Florida, where the law requires the Legislature to pass a bill awarding money to the freed inmate, and North Carolina, where a pardon from the governor is required before a wrongly convicted person can become eligible for payments of $20,000 for each year spent behind bars.
But some prosecutors see a slippery slope once the state starts writing checks to people freed from prison.
Pete Adams, executive director of the Louisiana District Attorney's Association, cites the case of famed prison journalist Wilbert Rideau. An appeals court granted Rideau a new murder trial 40 years after the crime was committed. Rideau was convicted of manslaughter and sentenced to time served in prison.
Adams points out that if the district attorney had not been able to assemble enough evidence to bring the case back to trial, Rideau would have been declared legally innocent and possibly entitled to compensation for his four decades in prison.
"The danger ... is that there is no logical line to draw between factually innocent cases and the Rideaus," Adams said.
In states with no compensation law, some found to have been wrongly convicted, such as Gregory, have sued the prosecutors and police who handled the investigation leading to the conviction.
Those lawsuits have had mixed results. For example, Gregory's case against the city of Louisville and various police officers and investigators is on appeal after a judge dismissed parts of it.
Gregory was convicted in 1993 based in part on testimony that hairs found in a stocking worn by the attacker were consistent with his. He was sentenced to 70 years in prison for rape and two counts of attempted rape.
DNA tests were not available at the time, but became available in the late 1990s. With help from The Innocence Project, a nonprofit organization that pushes for DNA exoneration, Gregory successfully appealed to have the hairs tested. The tests showed the hairs could not have come from him.
He was freed after prosecutors decided not to retry him. No one else has been arrested in the case.
Louisville police spokeswoman Alicia Smiley said the department does not comment on pending litigation. In court filings, the city and police say Gregory has failed to show that police intentionally did anything wrong, and that they should not be held responsible for honest mistakes.
Gregory, who now works in the electronics department of a Louisville-area store, is hoping to settle the case and use the money to start a foundation aimed at helping other convicts exonerated by DNA evidence.
"Any money, it'll bring some comfort," he said, "but it won't bring back all those years."
Copyright 2005 The Associated Press.

Illegal Juveniles

This article was sent to me and I decided to post it for you to read.

I have never seen this publication before but the story merits attention

Alone In America
By Amanda Levinson, AlterNet
Posted on August 23, 2005, Printed on August 23, 2005

Javier is 15 years old and deeply in debt to his smuggler. "I came here because I am poor and I want to buy some land for my parents" he says, rubbing his hands together nervously as he sits in the library of a detention facility for immigrant youth in California. "They are old and cannot work ... I am paying debt. It is rising every day. But what can I do? Nothing. I am here."

Two months ago, Javier and his parents promised a smuggler from their hometown in Guatemala that they would pay him $4000, with interest, if he would transport Javier to North Carolina, where the boy's brother lives. There, he planned to work for a few years to and save enough money to buy his parents a little piece of land. That dream ended in Arizona ten weeks after he left home, when Javier was arrested in an immigration raid on a house where he was staying.

Every year, thousands of youth like Javier risk their lives to come to the United States alone. Our nation's most vulnerable immigrants, when they are arrested, find themselves thrown into a confusing immigration system that simultaneously embraces and rejects the idea of child welfare, a system that treats them as something between child and adult, victim and criminal.

Across the country, the number of youth in detention is rising, and the vast majority never has access to legal representation. Many are housed in facilities hours from legal service providers, and states like Texas and Arizona have only one full-time staff attorney for the hundreds of minors detained there. There is also growing evidence that some children who have been labeled as unaccompanied in actuality have been forcibly separated from their parents by Border Patrol, a practice that has alarmed some lawmakers and calls into question whether funds are being used improperly by the two federal agencies charged with the protection of these children.

A Growing Phenomenon

In the past four years, the number of unaccompanied children taken into custody by immigration officials has increased by nearly 30 percent, from 4,600 in 2000 to 6,200 in 2004, and is expected to surpass 7,000 this year.

While the increase in apprehensions of children can partially be attributed to the new emphasis on border security and immigration enforcement after 9/11, the Office of Refugee Resettlement (ORR), a federal agency charged with the care, custody and placement of unaccompanied children through its Unaccompanied Children's Services, also points to deteriorating socioeconomic conditions in the children's countries of origin. Over three quarters of the unaccompanied children arrested last year came from Central America, a region where children are often mired in a cycle of crushing poverty, violent homes, and forced conscription into street gangs.

According to the ORR, most unaccompanied youth in their custody are Central American males between the ages of 15 and 17, although children of all ages and from most regions of the world can be found in the agency's care.

Alex is from Honduras, the poorest country in Central America according to the Economic Commission on Latin America, with 79 percent of its population living in poverty. The Office of Refugee Resettlement granted interviews with Alex and other youth for this article under the condition that their names be changed and their locations not be revealed.

At 18 years old, Alex is soft-spoken yet direct, with carefully coiffed hair and a hint of a mustache. He wears two gold chains around his neck, one with a dolphin charm, another with a heart that says, "I love mom."

When he was 10 years old, his father was stabbed to death by two of Alex's uncles. Alex found the body.

"They killed my father to rob him of the money he had made from selling a cow. For this reason they killed him," he said softly.

Although everybody in his town knew who had killed his father, nobody, not even Alex's grandmother, dared to turn them in. People were afraid of his uncles, who were drug users, and did not trust the authorities to investigate the crime and bring them to justice.

With his mother living in the United States and his grandmother unable to work, Alex was forced to quit school and start working on farms, making bricks, building houses -- anything he could to support himself and his three younger brothers. But his uncles were still hanging around, and Alex wanted to turn them in to the authorities. His family refused.

His uncles started threatening to kill him, a pattern that continued for several years. By the time Alex was 16, he was determined to leave Honduras. His destination was Houston, where his mother lives. In order to get there, he would have to travel over 2,000 miles and cross three borders illegally.

Alex's experience was harrowing. "I saw things I had never seen before. I saw criminals robbing a kid, and then they shot him right here," he said, pointing to his chin. "I saw a woman being raped on a train." He also spent several days without food.

"A lot of these kids are at death's door" when they reach the U.S., says Martha Rickey, an attorney with Arizona's Florence Project, an organization that provides free legal services to children in detention.

Alex's hellish journey ended in May 2003, three months after he left Honduras. He was arrested by Border Patrol shortly after crossing the Rio Grande in an inflatable boat in south Texas. He was transported in handcuffs to an adult jail, where he was held for 10 days before being sent to an ORR-run shelter for unaccompanied children in Chicago.

Conditions in Detention Improving

On any given day there are approximately 700 children in ORR custody. The agency has a 920-bed capacity, and contracts with 34 facilities spread out across the country, ranging from shelters, secure facilities and foster care to housing for children with histories of mental health disorders.

Under the former Immigration and Naturalization Service, children were often detained in jails along with violent juvenile or adult offenders for months at a time, according to 2002 reports by Amnesty International and the Women's Commission for Immigrant and Refugee Children. They also were routinely handcuffed, strip-searched, and denied legal representation, in violation of the Flores vs. Reno settlement, a 1998 agreement that set the standards for juvenile immigrants in detention.

Conditions for children started improving in 2003, when INS functions were absorbed into the newly created Department of Homeland Security and the responsibility for unaccompanied immigrant children was transferred to the Office of Refugee Resettlement. Now, when unaccompanied children are arrested by Border Patrol or other immigration authorities, they must be referred to the ORR within 72 hours.

The ORR, which is housed within the U.S. Department of Health and Human Services, has sought to adopt a child-welfare model for youth in detention. According to Maureen Dunn, the director of Unaccompanied Children's Services at the ORR, the agency opts to place youth in the least restrictive environment available, and when possible, to reunite them with family members pending resolution of their cases. The agency asserts that is has decreased the percentage of children in jail-like, secure facilities by 78 percent. Today, three to four percent of children are in secure facilities.

Most non-secure detention centers have English and computer classes, as well as space for recreation. "Some of [the children] have played for the first time in their lives" at these facilities, says Dunn.

Lawyers and advocates agree that conditions have greatly improved since 2003. "We have found quite a bit of improvement" in the facilities charged with caring for detained children," says Joanne Kelsey of the Women's Commission for Immigrant and Refugee Children, an advocacy group that monitors conditions within the facilities. Martha Rickey agrees. "The facilities are very well run. ... ORR has really gone out of their way to look after the best interest of the children," she said.

While the ORR says that the average stay for children in detention is around 45-60 days, in reality the length of a child's stay depends on a variety of factors, including the child's country of origin and whether he or she has a suitable family member to be reunited with, one willing to sponsor him or her through the lengthy legal process of applying for asylum.

A Mess in Texas

The rising number of detained children has placed a strain on legal service providers across the nation, who are scrambling to identify those children that have been trafficked or have strong cases for asylum, and to provide them with adequate representation.

Nowhere is this more evident than in Texas, which has only one full-time staff attorney for the nearly 500 children currently in detention in cities as spread out as Houston, Harlingen, El Paso and San Antonio.

Some say this situation is undermining the child welfare model that the ORR has sought to create for unaccompanied children. "At this point, we don't even have the resources to identify if kids have a claim," said Natalia Walter, a collaborating attorney with the International Rescue Committee in Texas.

Sister Liliane Alam, the executive director of Las Americas, an organization in El Paso that provides free representation to detained children, says that her organization has been struggling to keep up with cases since the number of children in detention suddenly doubled -- from 50 to 100 children -- in June 2004. "We are all overwhelmed by the situation," she says. "There is a real need in El Paso -- we need pro bono lawyers, we need law students."

The frustration about the lack of resources is echoed across the Southwest. Martha Rickey is the only free legal services provider for the approximately 130 children currently detained in Arizona.

"With as many kids as we see in Phoenix, there are only so many attorneys [who can do pro bono work]," she said. "There are a huge number of kids who never get hearings or fall through the cracks."

Another exacerbating factor is that many facilities are located hours from groups that can provide legal representation. One of the biggest detention centers in Texas is located in Harlingen, a seven-hour drive from Houston. Other facilities are located in rural Indiana and Georgia.

"A lot of times you have kids that are way outside the city, and you're asking a lawyer to spend hours during their day commuting" said Yolanda Eisenstein, Legal Director of the Child Immigrant Project at the Human Rights Initiative in Dallas.

According to the ORR, approximately 40 percent of children return to their country of origin, either voluntarily or by court order. Of those who remain, a very small number go on to obtain asylum, although there are no statistics that segregate the data by age. Those that are released to their family members pending immigration hearings are given court dates, but without legal representation, it is unlikely that a child will show up to his or her hearing. While the actual numbers of those who actually make it to court are not tracked or reported, according to Maureen Dunn, it is possible that as many as 65 percent of children are no-shows.

A new D.C.-based organization, called the National Center for Immigrant and Refugee Children, seeks to reduce that figure dramatically. The Center, which was started with funding from the actress and U.N. Goodwill Ambassador Angelina Jolie intends to match unaccompanied children who have been released from detention with volunteer attorneys from around the country.

Adriana Ysern, who is a senior program officer at the Center, says that they have started training pro bono attorneys in Houston and Dallas on how to represent children in those areas. Nevertheless, some say that, in the long-term, the only solution is to fund full-time attorneys in areas with the most detained youth. According to Natalia Walter, "There aren't enough pro bono attorneys who are willing to go to Harlingen or El Paso. Each case can take a couple of hundred hours, and it's hard to commit pro bono attorneys for long periods of time."

Splitting up Families

Adding further strain to this already overloaded system is a growing trend of Border Patrol agents forcibly separating family members who are arrested when crossing the border together, placing the child into ORR custody as unaccompanied and sending the parent to a separate detention center, which is often located hours away. Critics call this practice the "manufacturing of unaccompanied children."

While DHS defends these actions as appropriate given the lack of family detention facilities, others say that separating children from their parents can take great psychological and physical tolls.

Lynette Engelhardt Stott, Director of Government Relations at Lutheran Immigrant and Refugee Services (LIRS), which has field coordinators at some of the detention facilities, recalled a case of a nursing infant being separated from her mother, whose milk dried up. The two were eventually deported.

According to attorney Martha Rickey, in Arizona this practice is "routine -- there are no family shelters here, and children are almost immediately separated from their families."

Both Engelhardt Stott and Rickey say that children are rarely allowed to see their parents -- about once every other week, and are often emotionally needy.

"Because they're taken away from their parent forcibly, they need almost constant one-on -one care," Engelhardt Stott said.

In contrast to other unaccompanied children in detention, children who have been separated from family members have their cases tied to those of their relatives. Most adults, who immigration officials do not believe have a credible fear of persecution, are placed into expedited removal, allowing them to be immediately deported -- without a further hearing.

This means that detained youth are not allowed to be released into foster care or into the custody of other relatives, and are held pending the removal of their family member.

This has raised questions about possible misappropriation of funds earmarked by Congress for Unaccompanied Children's Services. Under the Homeland Security Act, the program, whose budget for 2005 is $54 million dollars, is to provide care only for those children who have entered the country without a parent a guardian.

"ORR's mandate is unaccompanied children, not children who have been rendered unaccompanied solely by DHS action," said Chris Nugent, a Washington, D.C. lawyer who represents unaccompanied children.

Nugent estimates that 1 percent of all children in ORR custody -- about 750 a year -- are children who have a family member in detention.

Maureen Dunn, division director of the Unaccompanied Children's Services of ORR, asserted that her agency often is not informed when children in their care have been separated from their families. "Since October," she said, "we've had 90 children so far that have parents who are detained" in Phoenix alone. "We only find out later when the shelter staff talk to the kids." Engelhardt Stott says it may take weeks before LIRS knows a child has a parent in a separate facility.

However, Manny Van Pelt, a spokesman for Immigration and Customs Enforcement, disputed that claim, and said that every child arrives at an ORR facility with a file that states whether they entered with a guardian, and where that guardian is held.

The controversy recently grabbed the attention of lawmakers at a hearing of a House appropriations committee, when California Representative Lucille Roybal-Allard questioned Dr. Wade Horn, the Assistant Secretary for Children and Families, on the issue.

Transcripts from the hearing indicate that although DHS and ORR have discussed the issue, there has not been a resolution. Responding to questioning from the Representative, Dr. Horn replied "[W]e're aware of the issue, and we're currently in discussion with DHS, working to endeavor to resolve that issue."

In the meantime, attorneys are lobbying for the creation of more family detention centers. Currently there is only one such center located in Berks County, Pennsylvania. Until that happens, though, attorneys have to add these cases to their already huge loads.

"At this point, all we can do is count [separated children] and notice that they are there," said Martha Rickey. "We have very limited resources."

Immigration Law: Minor Troubles

Still, immigration attorneys and advocates say that the greatest challenge to protecting unaccompanied youth is that current U.S. immigration law does not distinguish between children and adults. The majority of children are forced to navigate a complicated and confusing legal system on their own, one that holds them to the same standards as adults.

According to the American Immigration Lawyers Association, only 10 percent of unaccompanied children are represented in court hearings. This is partially because immigration law does not require that children have access to either court-appointed guardians or attorneys, which stands in stark contrast to legislation covering juveniles in general.

"The concept of 'best interests of the child' does not apply in immigration law," said Lisa Frydman, an attorney with San Francisco-based Legal Services for Children.

Unaccompanied children have few options for immigration relief beyond asylum (in which a person has to prove fear of persecution based on race, religion, political opinion or membership in a social group or nationality) and Special Immigrant Juvenile Status (which is conferred upon immigrant children who can prove abandonment, neglect or abuse). Although some Central American youth are able to obtain asylum based on their involvement in gangs, the decision as to whether a youth's involvement in a gang counts as membership in a particular 'social group' depends on the individual interpretation of the judge overseeing the case.

For the past four years, a congressional bill known as the Unaccompanied Child Protection Act has sought to remedy some of the problems facing unaccompanied minors, guaranteeing them the right to legal representation and expanding their access to foster care. First introduced in 2001 by Senator Diane Feinstein of California, the bill has never garnered the support necessary to become law. Scott Gerber, a spokesman for the Senator, is optimistic about its chances for passing this session. "We have a lot of good, solid bipartisan support," said Gerber.

Javier's Nightmare

When he realized that he did not have a strong case for asylum, Javier, the Guatemalan youth who arrived in debt to his smugglers, decided to risk an uncertain future in his country.

"I want to stay in the United States, but what do I do about the debt? The lawyer says that I cannot stay here," he said, his voice tinged with frustration. "What I can do is ask for deportation, and then pay the debt in Guatemala."

He said that he would work in one of the sweatshops in Guatemala City, making pants or shoes. When asked how long he thought it would take him to repay the debt, he shrugged. "A single dollar is a lot of money," he replied.

According to immigrant youth advocates, this is a common scenario. "There is a lot of anxiety for them," says Beth Daigneault, a paralegal for the Florida Immigrant Advocacy Center. "They realize with frustration that the only option is to return to their country."

Alex's Dream

Alex, the Honduran boy whose father was murdered by his uncles, is one of the few youth to make it through the asylum system successfully. After 11 months in detention in Chicago, he found a lawyer who would represent him and was confident that she could win asylum for him based on a credible fear that he would be killed if he returned to Honduras. His court hearings took place in July 2004.

"Going to court was quite an experience for me, because I had never been to court before," he said. "I just decided, if they deport me, fine. If I stay, fine. I didn't have anything to lose anymore."

Eventually, the judge granted Alex asylum. Today, he is living with a foster family in Massachusetts and attending high school, but the adjustment hasn't been easy for him. Accustomed to living on his own and working since he was 10 years old, he chafes a bit at living in a structured environment.

"They're used to being adults," says Carmen Quezada, Alex's social worker. "Here we're giving them the opportunity to be kids again, but it's complicated. ... I tell him, 'This is a very structured country. For everything there is a law and a process, and if you want to achieve good things, you have to have patience and get them little by little.'"

Alex's journey -- from Honduras, where his youth was violently interrupted, to the U.S., where the immigration system treated him alternately as a child in need of help or as an adult lawbreaker -- mirrors the journeys of the thousands of youth arriving to our nation every year. In the daily drama of waiting out bureaucratic movements that will decide their fate, the heaviest burdens on these youths -- impoverished relatives, psychological trauma, debt to smugglers -- are temporarily forgotten. But they are never far away.

Given their youth and all that they have been through, the dreams that 18-year-old Alex and others far younger than him have for their lives in the U.S. seem both modest and heartbreaking. Now that he has asylum, Alex is impatient to work and support his family.

"What I most want is to work and help my brothers in Honduras, for them to go to school. I want them to have everything I didn't have," he said quietly. "I have a very strong love for them because I raised them since I was 10 years old."

Amanda Levinson is an independent journalist in Somerville, Massachusetts who researches domestic and international immigration policy.
© 2005 Independent Media Institute. All rights reserved.
View this story online at:

Monday, August 22, 2005

Study shows Dallas defense strike whites most often from venire

A BCRCJ student shared this with me and I felt that it would be of interest

It appeared in the Dallas Morning News

Jurors' race a focal point for defense

Rival lawyers reject whites at higher rates

09:03 AM CDT on Monday, August 22, 2005


Nothing matters more than race to Dallas County defense lawyers when they play the high-stakes game of seating a sympathetic jury for their clients.

In fact, defense lawyers were more than three times as likely to reject whites as they were to reject blacks, according to an analysis of jury data by The Dallas Morning News.

But in following long-held, yet unproven, stereotypes that black jurors are softer on crime, defense lawyers are trampling a U.S. Supreme Court ban on race bias in jury selection.

"Most defense attorneys, if they're honest, will admit that they want to get rid of the whites because the prosecution is getting rid of the blacks," said David Baldus, one of the nationally recognized experts on race in jury selection who reviewed the newspaper's findings. "It's a kind of discrimination that no one is really objecting to very much because everybody is doing it."

While defense lawyers say their jury selection tactics are motivated by a desire for a more diverse panel, they only occasionally challenge prosecutors who eliminate black prospective jurors, the newspaper also found.


Defense attorneys prefer almost any black juror over a white one

Blacks serve on Dallas County juries in numbers that approximate their proportion of the population, but primarily because defense strikes against whites effectively cancel prosecutors' strikes against blacks, the newspaper's analysis showed.

Defense lawyers used only 6 percent of their peremptory, or discretionary, strikes against blacks. By contrast, they used 82 percent of their strikes against whites – eliminating more than a third of white eligible jurors.

Nothing was as significant as race in determining why defense lawyers rejected prospective jurors, according to the statistical analysis of factors in the jury selection process.

Nearly 20 years ago, The News revealed that prosecutors were excluding almost all blacks from jury service. The Supreme Court later ruled in a 1986 Dallas County murder case that the district attorney's office was "suffused with bias" at the time.

To determine whether there had been any change, The News spent two years collecting and analyzing data from 108 felony trials conducted in 2002 in Dallas County courts.

The analysis showed that defense attorneys were more likely to strike potential jurors who had been crime victims or who worked in law enforcement or had friends or family in law enforcement. But even when blacks and whites had similar backgrounds or relationships, defense attorneys rejected white prospective jurors more often.

Where prosecutors were more likely to strike those who are single, the defense was more likely to strike those who are married. Prosecutors strike people in blue-collar jobs at higher rates; the defense strikes people in white-collar jobs at higher rates.

Next to preferring almost any black person over a white person, the analysis showed, the defense works to seat those who readily admit that they consider rehabilitation the most important aspect of punishment.

Like prosecutors, defense lawyers say that if they choose members of one race over another, it's based on something other than skin color.

JR Cook said that if he prefers blacks over whites, it's only to put some people on the jury who may have an understanding of his client's perspective.

"When was the last time you got rousted for being white?" the defense lawyer asked. "I'm not saying it's right. It's called reality."

For the judges who oversee jury voir dire – the group interview of prospective jurors by both sides – defense attorney strike patterns are no surprise.

"If there is a white male over the age of 35 wearing a suit, that guy's got zero chance of getting on the jury," state District Judge Robert Francis said. "The defense is striking him, and they're not going to ask him any questions."

Defense lawyers sometimes won't strike black prospective jurors even if the potential jurors acknowledge a bias that could hurt the defendant, judges and prosecutors noted.

"A black juror who is dressed in a coat and tie, who works for Bank of America, who graduated from Harvard, who lives in Preston Hollow – he's going to hang your client – but they leave him because he's black," said prosecutor Eric Mountin. "Instead, they get rid of some no-account white guy who probably has more in common with their client than this banker."


Supreme Court rulings also ban defense attorneys from race bias

In 1992, six years after the Supreme Court barred prosecutors from discriminating against even one potential juror on the basis of race, the high court ruled in an Ohio case that race bias by defense lawyers also violated jurors' rights.

Peter Barrett, president of the Dallas Criminal Defense Lawyers Association, strongly criticized prosecutors for rejecting black prospective jurors at a higher rate than whites. But, he argued, the newspaper's findings that defense lawyers rejected whites at a higher rate than blacks don't necessarily prove that defense attorneys are guilty of discrimination.

"You need to remember that jury selection is not picking jurors so much as eliminating jurors," said Mr. Barrett, who has practiced criminal law for 11 years. "And I tend not to eliminate people of color as often."

Mr. Barrett said he tries to have a cross-section of the community on a jury panel that includes men and women, Hispanics, blacks and whites.

"I don't perceive myself as striking more whites, but maybe I do – subconsciously," he said. "But I don't consciously agree with using stereotypes and profiles. I want people who can understand the issues – and that tends to be educated people."

Defense lawyer Kenneth Weatherspoon said he believes his colleagues "probably strike whites at a higher rate," but added that race plays the greatest role "where you see a white juror who lives in an all-white area" and has little contact with people of color.

Timothy Bray, an assistant professor of criminology at the University of Texas at Dallas, said that race bias by both sides, as shown by the strike rates, could in a "weird" way be proof that the system is working.

The pool of prospective jurors is not supposed to reflect the defendant's population; it should be a fair cross-section of the community, he said.

"These strike rates look alarming, but remember, the defense and the prosecutors have different goals in mind. To that end, one might imagine that the defense attorney has a little more of a stake in the race of the jurors. He has someone sitting next to him that is of a certain race," Mr. Bray said. "The dynamics of the defense is completely different from dynamics of the prosecution."

Although the Supreme Court banned all lawyers from using race or gender in their juror selections, prosecutors complain that their courtroom adversaries aren't held to the same standard.

"We, of all parties involved in the case, have to follow the rules," said Rick Jackson, a chief felony prosecutor. "Quite frankly, the defense bar does not. That's a fact of life. Their job is solely to see that their client gets the best defense."

But defense lawyer Cheryl Wattley said the high court's application of the same anti-discrimination rules to the defense clouded the original intent of curbing race bias against black jurors.

"What you have done is taken a ruling that was supposed to ensure minorities the opportunity to serve on the jury and then put a burden on a defendant to explain a strike of every Caucasian," she said.


Vague legal guidelines make race-based strikes hard to prove

Under procedures established by the Supreme Court in its 1986 landmark ruling on race bias in jury selection, Batson vs. Kentucky, if either side suspects racially motivated strikes, it can request a formal review by the court.

But defense lawyers requested Batson hearings in only 16 of the cases reviewed by The News. Prosecutors raised Batson objections in just two of those cases. Trial judges rejected them all.

Of the cases appealed to higher courts, only five mentioned Batson, and none was overturned.

Defense lawyers readily admit that race bias is nearly impossible to prove.

"If you can't get out of a Batson challenge, you can't get out of your own way," said assistant public defender Mike Byck. "Just like a prosecutor can think of a reason [to overcome a Batson challenge], so can I."

Mr. Byck said lawyers will cite gestures, looks or body language that are impossible to disprove in a Batson challenge.

On occasion, however, Dallas County prosecutors have managed to successfully challenge defense lawyers for using discriminatory strikes.

In 2002, prosecutor John Kull convinced a judge that defense attorney Scott Becker removed a black juror for racial reasons in the trial of a white man accused of assaulting a black man in a road rage incident.

State District Judge Karen Greene ruled in Mr. Kull's favor and seated the 65-year-old black woman on the jury after Mr. Becker acknowledged that he hadn't asked her any questions – and had marked her for exclusion when she walked into the courtroom for jury selection.

Frequently, lawyers for both sides will avoid formal challenges of racial bias in favor of informal discussions. That can help prevent someone from being accused of racism in jury selection and creates an air of collegiality and trust between opponents, said state District Judge Keith Dean.

These informal hearings do not preclude an on-the-record challenge of a juror strike, Judge Dean said, but can make one unnecessary if the two sides have developed some degree of trust with each other.

"Ideally, everyone operates in good faith," he said.

Defense lawyers admit privately that they often forgo formal Batson objections because they usually don't work and they don't want to risk the repercussions of suggesting a prosecutor is racist.

But it's that courtroom chumminess that Houston appellate attorney Brian Wice finds so objectionable.

"One of the things you need to figure out early on is who you're working for," said Mr. Wice, who also handles appeals on Dallas cases. "Are you working for the court? Or do you represent that guy in the jumpsuit who had a bologna sandwich for lunch?"

Most important, he said, off-the-record hearings eliminate the possibility of race bias being raised on appeal.

"I think it's unconscionable," Mr. Wice said. "If you don't have a half-minute, two minutes, 10 minutes or 30 minutes to spend on your client [in a formal Batson challenge], shame on you."


Informal agreements between defense and prosecution hurt blacks

Another informal practice used by both sides in Dallas County courts that also eliminates potential jurors from service is known as the "agreed excusal."

These excusals occur just before both sides must begin using their limited number of peremptory strikes – 10 each for the defense and prosecution.

So-called "agreeds" are prospective jurors who give ambiguous answers during questioning or are otherwise considered unpredictable – but have not specifically said anything to indicate they cannot follow the law, which would allow for an automatic dismissal by the trial judge.

So defense lawyers and prosecutors – sometimes along with the judge – will discuss and agree that such prospective jurors should be removed.

Doing this, both sides agree, keeps them from "burning" valuable peremptory strikes on a person neither side wants.

But these mutual agreements have a greater impact on black jurors. In The News' analysis of juror records from the 108 cases, the number of blacks excused by agreement nearly equaled the number of blacks excused for not being able to follow the law. Together, these two groups represent about one in three black prospective jurors excused from jury service, the analysis showed.

Only about one in five white prospective jurors was eliminated for those two reasons.

Some legal experts say that eliminating agreed excusals could put more blacks on juries.

"What you are in essence doing [is] giving the prosecutor more strikes," said Robert Hirschhorn, a lawyer and nationally known jury consultant from Lewisville. He called agreed excusals "a dangerous practice."

Mr. Hirschhorn, who advises primarily defense attorneys, said that the relationship between the prosecution and defense in Dallas is much more congenial than in other big cities, and that "familiarity tends to promote a get-along attitude and not rocking the boat and not making waves."

Agreed excusals also lower the odds of any error in jury selection resulting in a conviction being overturned because most appeals are based only on the court record.

"There is nothing to complain about," Mr. Hirschhorn said. "There is no real issue on appeal."

But the president of the local defense lawyers association said agreed excusals are not the problem.

"It's a way to ensure that someone you don't want on the jury doesn't get there," Mr. Barrett said. "I don't think it favors either side."

The real problem, he said, is that the law barring race bias in jury selection has been rendered ineffective by trial and appeals court judges who for years have accepted virtually any reason to remove a juror, no matter how outrageous and racially suspect the excuse might sound.

"I've never had a juror put back on a jury" because of race bias, Mr. Barrett said. "The legal remedy for this is intellectually dishonest."

Indeed, the Dallas appeals court has not overturned a conviction based on race bias in jury selection in more than 12 years, and defense attorneys say they are justified in their cynicism that discrimination can ever be eliminated from the process.

Larry Mitchell, an appeals lawyer from Dallas, said he never thought the law against race bias would succeed among lawyers.

"I didn't think it was a good idea to try to do your social work in a jury room," he said. "Lawyers are going to try to win their cases the best they can. They're going to pick the best jury they can."

Peter Lesser, another longtime criminal defense lawyer, said race would remain a big factor in jury selection for both sides until society decides it's no longer relevant.

"Anybody who tells you society is race-neutral is lying, or they're very naïve," he said. "Race is involved in everything we do in this country."

Stories by Tim Wyatt, Jennifer LaFleur, Steve McGonigle and Holly Becka

Online at:

Sunday, August 14, 2005

Not CJ but influence of email on policy is really interesting

No matter where you stand on tort-reform issues, the effect of the Internet is quite remarkable.

Legal Urban Legends Hold Sway
Tall tales of outrageous jury awards have helped bolster business-led campaigns to overhaul the civil justice system.
By Myron Levin
Times Staff Writer

August 14, 2005

Merv Grazinski set his Winnebago on cruise control, slid away from the wheel and went back to fix a cup of coffee.

You can guess what happened next: The rudderless, driverless Winnebago crashed.

Grazinski blamed the manufacturer for not warning against such a maneuver in the owner's manual. He sued and won $1.75 million.

His jackpot would seem to erase any doubt that the legal system has lost its mind. Indeed, the Grazinski case has been cited often as evidence of the need to limit lawsuits and jury awards.

There's just one problem: The story is a complete fabrication.

It is one of the more comical tales in an anthology of legal urban legends that have circulated widely on the Internet, regaling millions with examples of cluelessness and greed being richly rewarded by the courts. These fables have also been widely disseminated by columnists and pundits who, in their haste to expose the gullibility of juries, did not verify the stories and were taken in themselves.

Although the origins of the tales are unknown, some observers, including George Washington University law professor Jonathan Turley, say their wide acceptance has helped to rally public opinion behind business-led campaigns to overhaul the civil justice system by restricting some types of lawsuits and capping damage awards.

"I am astonished how successful these urban legends have been in influencing policy," Turley said. "The people that created these stories did so with remarkable skill."

The tales are making the rounds at a time when business lobbyists and conservative politicians seem to have gained the upper hand in their drive to rein in lawsuits — a campaign that they call tort reform but that trial lawyers and consumer groups say is an assault on the legal rights of ordinary people.

According to the American Tort Reform Assn. — which is backed by insurance, drug, auto and other major industries — 49 states have enacted at least one measure on the group's wish list over the last two decades, including limits on punitive damages and caps on awards for pain and suffering in medical malpractice claims.

In February, President Bush signed a federal law that will make it harder to bring class-action suits in state courts.

And some polls suggest that there is public support for further change.

For example, a survey conducted for the American Tort Reform Assn. in 2003 found that by a ratio of 2 to 1, respondents believed that lawsuits were harming the economy and stifling job creation. In a survey released in June by Common Good, a conservative legal reform group, 83% of respondents said it was too easy to file invalid lawsuits, and 55% agreed with the statement that "many people use the justice system almost like a lottery — they start lawsuits to see if they can win millions."

Such fears, fanned by anecdotes like the Grazinski tale, have no empirical basis, said Joanne Doroshow, executive director of the Center for Justice and Democracy, a consumer group that opposes the agenda of the business groups. "The data tends not to support the allegation that there is an out-of-control crisis with the legal system," she said.

She and others point to surveys by the National Center for State Courts and the federal Bureau of Justice Statistics showing an apparent decline in personal injury suits and in the size of jury awards to successful plaintiffs.

But advocates of reining in lawsuits say there is no need to invent fictitious examples of legal abuse. "All false stories should be exposed," said Victor Schwartz, general counsel of the tort reform association. But "you don't have to go to the surreal" to find dubious verdicts, he added.

The group's website includes a link to what it says are real but "Looney Lawsuits," including a recent case in which a Portland, Ore., jury awarded $1.6 million to a woman who was seriously disfigured in a botched liposuction surgery. The jury imposed the judgment on the publisher of a phone directory after concluding that the company had knowingly allowed a dermatologist to falsely advertise himself as a board certified plastic surgeon.

Whether it's the rich detail of the phony yarns that resonates or the fact that people are prepared to think the worst of the legal system, the bogus tales have attracted crowds of believers.

The first time he heard of the Grazinski case, Cornell University law professor Theodore Eisenberg was a guest on a Rochester, N.Y., radio talk show. Annoyed by Eisenberg's defense of the justice system, a caller flung the Winnebago windfall in his face.

"You're saying the system's not crazy," Eisenberg recalled the man saying, "but what about this case?"

Besides the Grazinski saga, there's the mythical case of Amber Carson of Lancaster, Pa., who got into an argument with her boyfriend in a restaurant, threw a drink at him and then broke her tailbone when she slipped on the wet spot on the floor. Naturally, Carson sued — and won $113,500.

Then there's Kara Walton, a Delaware woman so eager to avoid a $3.50 cover charge that she tried sneaking into a nightclub through a bathroom window but fell and lost a couple of teeth. Walton sued and won $12,000 plus payment of dental bills.

A database search shows the Grazinski, Carson and Walton tales have been cited as true by a wide range of media outlets, including CNN; U.S. News & World Report; the American Spectator; the Oakland Tribune; the Ft. Worth Star-Telegram; the Deseret News of Salt Lake City; the Akron Beacon-Journal; the Greensboro, N.C., News & Record; and the Augusta, Ga., Chronicle.

Some later issued corrections. Chuck Thomas, a columnist for the Ventura County Star, offered a mea culpa in a follow-up column, anointing himself winner of the "Chucklehead Award."

Wide acceptance of the myths has been an eye-opener for Sheila Davis, public relations manager for Winnebago Industries in Forest City, Iowa. Davis says she has repeatedly had to explain that, no, there was no Grazinski lawsuit, and, no, the company did not have to change the owner's manual to avoid a swarm of copycat claims.

"Unfortunately, we do have some people who write about it and don't call us," Davis said.

The cases are often listed together on Internet postings as winners of the "Stella Awards," — supposedly a dubious achievement list of the nation's most outrageous and ridiculous lawsuits. Although entirely fictitious, the Stellas take their name from the real-life case of 79-year-old Stella Liebeck, whose hot-coffee case against McDonald's became the poster child for frivolous claims.

According to popular accounts of the lawsuit, Liebeck coaxed nearly $3 million from an Albuquerque jury in 1994 after being scalded by McDonald's coffee she spilled on herself while riding in a car. These are the story's best-known elements, but filling in the missing facts puts the case in a different light.

Trial testimony showed that at 180 to 190 degrees, McDonald's coffee was much hotter than that served by other restaurants or by people in their homes. The fast-food chain had received at least 700 complaints about hot coffee in the previous decade and had paid more than half a million dollars in settlements, according to trial testimony cited by the Wall Street Journal.

Liebeck's injuries were hardly minor. She suffered third-degree burns on her thighs and groin area, was hospitalized for a week and had to undergo painful skin grafts. Before filing a lawsuit, she wrote McDonald's requesting that it lower the temperature of its coffee and cover her uninsured medical bills and incidental costs of about $20,000. McDonald's offered $800.

Later, as the case neared trial, a mediator recommended that McDonald's pay a settlement of $225,000. The company refused.

Jurors ultimately awarded Liebeck $160,000 in compensatory damages and about $2.7 million in punitive damages. "The facts were so overwhelmingly against the company," one of the jurors told the Journal. "Their callous disregard was very upsetting," another said.

Soon after the verdict, the trial judge slashed the punitive damages by more than 80% to $480,000. Then the case settled for an undisclosed amount.

"The irony about the McDonald's case is that it actually, in my view, was a meaningful and worthy lawsuit," George Washington University's Turley said. Yet advocates and pundits have "made it synonymous with court abuse."

Unlike the popular version of the McDonald's case, the Stella Awards push mythmaking past mere exaggeration.

Barbara Mikkelson of Agoura Hills, who with her husband, David, operates a website dedicated to debunking urban legends (, says the Stellas have sometimes appeared with an e-mail chain letter in which the mythical law firm of Hogelman, Hogelman & Thomas exhorts people to "assist our law offices in a tort reform program" by publicizing "insane jury awards." Mikkelson noted that with the way information travels on the Internet, it would be impossible to determine the original authors.

Randy Cassingham, a Colorado resident who also debunks the Stellas on his website , says he is angry about the tales — not only because they are false but also because they divert attention from what he believe are real abuses in the legal system.

According to Cassingham, the Stellas allow trial lawyers to say, "See, there is no problem with frivolous lawsuits. Our opponents have to make up cases to make a point."

Although business groups are obvious beneficiaries of the fables, Schwartz of the tort reform association said his group had had nothing to do with them and was careful to verify all of its claims. "We try to be absolutely accurate in anything we're presenting," including examples of outrageous suits, Schwartz said.

In fact, Schwartz said, over-the-top self-promotion by some trial lawyers have made the best case for the need for change. "Their ads making things seem as if it's just free money" have done "more to convince the American public that we have jackpot justice than anything put out by any tort reform organization — including the 'looney lawsuits' stories," he said.

Thursday, August 11, 2005

Life Term Prisoners Meet with Criminologists

A group of lifers have organized a prison group aimed at helping those who will eventually be released to become rehabilitated. They met with a group of academic criminologists during a conference recently (academics spent day at prison). The comments and philosophy are worth reading.

Culture Means Legal here, unlegal there

The New York Times
August 11, 2005
Entrenched Epidemic: Wife-Beatings in Africa

It is important to understand that tribal customs underpin legal actions and reactions. To change things is a very slow and difficult process in the face of age-old traditions

Link to the article:

Monday, August 08, 2005

Sandra Day O'Connor gets a new job

The findings that are causing Justice O'Connor to take a new job is quite surprising and disturbing.

The article is here:

Justice Stevens and Death Penalty

Justice Stevens spoke about the death penalty to the American Bar Association and his comments are worth reading. He speaks about retiring Justice O'Connor as well

Here is article link

Sunday, August 07, 2005

Where Killers are out of Style

This article is fascinating:

Where Killers Are Out of Style

THE lions aren't lying down with the lambs yet at the Bronx Zoo, but New York is becoming an increasingly peaceable kingdom.

With the year more than half over, it appears the number of homicides in the city may fall below 500 for the first time since 1961, when the subway fare was 15 cents and Roger Maris hit 61 home runs. If that happens, this could be the first year in nearly half a century when more New Yorkers kill themselves than are murdered, as well as the first time since then that New York's murder rate, the number of murders per 100,000 people, is lower than that of the nation as a whole.

To read the article:

Thursday, August 04, 2005

Bahrain's Justice System praised

This article gives you some insight into the workings of the ICJ and the judges involved:

I do not know how long this link will work.

Culture and Language Make Prosecution Difficult

Cultural Differences Complicate a Georgia Drug Sting Operation
Published: August 4, 2005

The federal undercover agents used the slang associated with making methamphetamine; those charged are 49 convenience store clerks and owners in rural northwest Georgia who are all immigrants from India, many with the same last name Patel (very common surname in India). Defendants are claiming that culture and language combined with a result that they were not aware of reason for purchase.
A few excerpts from transcripts are included and give a slightly clearer look at the issue and problems involved.