Sept. 21 USA: Judicial Conference Supports Citing Unpublished Opinions Policy-making arm of federal judiciary takes no position on splitting of 9th Circuit The policy-making body of the federal judiciary on Tuesday endorsed a sweeping rule change that will allow lawyers to cite unpublished opinions in federal appeals courts nationwide beginning in 2007. The Judicial Conference also voted not to take a position on the controversial question of whether the sprawling 9th U.S. Circuit Court of Appeals should be split in two. Members did, however, agree that they would oppose any circuit-splitting bill that does not provide adequate funding for the costs involved. The issue has been debated by Congress for years without resolution. The citation rule change, if ratified by the Supreme Court and untouched by Congress, would end a practice that brought charges of a hidden, unaccountable system of justice against some of the nation's largest and most important appellate courts. The 2nd, 7th, 9th and federal circuits ban citation of unpublished opinions outright, while 6 other circuits discourage it. Passage of the resolution by voice vote followed "a great deal of debate," said Judge Carolyn Dineen King, chair of the executive committee, at a post-meeting news conference. She said passage was eased by an amendment introduced at the meeting that would make the change prospective only, meaning that lawyers will be able to cite only those unpublished opinions issued after Jan. 1, 2007. King also stressed that individual circuit courts will be able to set their own rules about the precedential value unpublished opinions can be given. The conference vote is something of a bouquet tossed to its likely next chairman, chief justice nominee John Roberts Jr. As a private practitioner and then as a judge on the U.S. Court of Appeals for the D.C. Circuit, Roberts served on the advisory committee that recommended the new rule, 32.1. "A lawyer ought to be able to tell a court what it has done," Roberts said at the April 2004 meeting at which the advisory committee first endorsed the rule. At his Senate Judiciary Committee confirmation hearings last week, Roberts said he was in line to chair the advisory committee in October -- now unlikely, since as chief justice he would chair the entire Judicial Conference. The conference's standing committee on rules of practice and procedure approved the citation rule in June of this year. "This is one of the things John Roberts took a personal interest in," said Mark Levy, who heads the appellate advocacy group at Kilpatrick Stockton and was another member of the advisory committee along with Roberts. "It will be a terrific change that will make the process fairer and more transparent." Michael Schmier of the California-based Committee for the Rule of Law said: "We have worked for 10 years to see this day. We are gratified that the mechanism by which the rule of law is imposed upon the judiciary is restored." Schmier said that the federal rule change could have a ripple effect on California and other states that have their own non-citation rules. The meeting of the Judicial Conference was presided over by Justice John Paul Stevens in the wake of the death Sept. 3 of Chief Justice William Rehnquist. Stevens "did a fine job," King said. "He has a great deal of charm." The conference -- composed of the chief judges of all 13 circuits as well as one district judge from each circuit and the chief judge of the Court of International Trade -- passed a resolution mourning the loss of Rehnquist, who presided over the conference for nearly two decades. As many as 80 % of all appeals court opinions are designated "unpublished," though most are available on electronic databases or from the courts themselves. The practice of issuing uncitable, unpublished opinions -- many of them brief dispositions drafted by law clerks or staff attorneys -- developed over the past 30 years as a time-saving device for overburdened appeals judges. Critics say the practice produced a body of often conflicting opinions that did not need to be harmonized and could not be cited or reversed. A significant faction of appeals judges, led by 9th Circuit Judge Alex Kozinski, resisted the rule change, complaining that it would exponentially increase their workload by forcing them to polish and beef up the unpublished opinions. After Tuesday's vote, Kozinski said, "I don't have any comment. I think it's a bad idea, but that's what it is. Maybe the Supreme Court will overrule it." Kozinski, who encouraged other 9th Circuit judges and practitioners to write letters in opposition to the rule change, also asserted the change would increase litigation costs by expanding the universe of cases lawyers must search on behalf of clients. But a study by the Federal Judicial Center, issued in April, found that in circuits that had decided in recent years to allow unpublished opinions to be cited, neither problem had materialized to a significant degree. But another leading opponent of the rule change said that survey was misleading because it takes a long time for lawyers and judges to change their practices. "In years to come, you are going to see briefs loaded up with this junk law," said Sanford Svetcov of Lerach Coughlin Stoia Geller Rudman & Robbins in San Francisco, who voted against the move in the advisory committee. But Svetcov acknowledged that the momentum was strongly in favor of the rule change. "There was a freight train running downhill, with only me and Judge Kozinski standing in the way." Stephen Barnett, emeritus law professor at the University of California, Berkeley, a leading proponent of the citation rule change, said that the Judicial Conference deserved credit for "refusing to be swayed by an elaborate letter-writing campaign from the 9th Circuit." The conference, he added, "has followed an extensive process of deliberation, research, and reason to a courageous and laudable result." (source: Legal Times) *********************** CaseCentral Becomes a Founding Sponsor of Pro Bono Net's Corporate Sponsorship Program Mission to Provide Legal Assistance to Low-Income Individuals and Groups Depends on Support from Entire Legal Community CaseCentral, the leader in electronic discovery and litigation management solutions for major law firms and corporations, today announced that it has become a founding member of Pro Bono Net's Pro Bono Net Corporate Sponsorship Program. The purpose of the new program is to work directly with the legal community that supports lawyers and law firms to raise funds to support Pro Bono Net's mission. Pro Bono Net uses information technology and a unique collaboration among the various parts of the public interest legal community to bring legal assistance to those who cannot afford it. Pro Bono Net offers assistance in areas such as asylum law, death penalty cases, health law, human rights, and prisoners' rights, and is currently providing support for partnering legal aid and pro bono groups in 28 states, including Alabama, Florida, Louisiana, Mississippi, Georgia, and Texas. "Pro Bono Net's mission is vital to many people and communities, and we believe it is important for the entire legal community to support the group's efforts," said Chris Kruse, CEO and co-founder of CaseCentral. "In our role as a vendor interacting with many of the largest law firms in the country, I believe we can provide a broader forum for spreading the Pro Bono Net message. We look forward to working with Pro Bono Net and the other corporate sponsors to create an entity that supports the legal community." "The unmet need for legal assistance is huge," said Mark O'Brien, co-founder and executive director of Pro Bono Net. "CaseCentral's support as a founding corporate sponsor will not only help raise awareness of Pro Bono Net within the legal community, but also improve our ability to recruit and properly match attorneys with worthy cases that deserve the highest caliber counsel." About Pro Bono Net With offices in New York City and San Francisco, Pro Bono Net is a national, nonprofit organization that works in close partnership with nonprofit legal organizations across the country to increase access to justice for poor and moderate-income people and other vulnerable populations. It does so through (i) supporting the innovative and effective use of technology by the nonprofit legal sector, (ii) increasing participation by volunteers, and (iii) facilitating collaborations among nonprofit legal organizations and advocates working on similar issues or in the same region. For more information, please visit http://www.probono.net. About CaseCentral CaseCentral is the market leader in electronic discovery and litigation management solutions for major law firms and corporations. The company is chosen to handle many of the largest, most complex litigation projects in the nation. CaseCentral provides the most widely used online document repository, which hosts massive document collections for review by legal counsel, providing anytime, anywhere access for large, dispersed litigation review teams. The company is also rapidly emerging as a capacity leader in the electronic discovery services market with fast, affordable, high-quality electronic file conversion services. Headquartered in San Francisco, CaseCentral has worked with 81 of the largest 100 US law firms (the American Lawyer Top 100) and the legal departments of hundreds of leading corporations worldwide. Founded in 1994, the company is backed by leading venture investment firms including Advanced Technology Ventures and Housatonic Partners. For further information, call 800-714-2727 or visit http://www.casecentral.com. (source: CaseCentral) (source: PR Newswire) ****************** Death penalty is condemned The death penalty should be abolished if Americans want to rise above the acts of criminals, according to a former death-row inmate. "Society is supposed to be better than the criminal element," Gary Gauger said Monday at Utah Valley State College. "We revert to the criminal element." Gauger, 53, received the death penalty for the murder of his parents in 1993. He spent 3 1/2 years on death row before his conviction was overturned. His address, which was part of UVSC's Ethics Awareness Week, was 1 of 3 about capital punishment. Illinois Gov. George Ryan later pardoned him. 2 members of a motorcycle gang now are serving time for the murders - but only after a separate investigation by the Bureau of Alcohol, Tobacco and Firearms. Gauger found his parents' bodies on the family farm about 65 miles outside of Chicago. Police in McHenry County, Ill., questioned him without an attorney. Gauger didn't think he needed an attorney because he had nothing to hide. He was naive, he said. Police interrogated him for 18 hours. He was sleep-deprived and shocked by the deaths. "I was very vulnerable," Gauger said. "They took advantage of me." Police told him they found blood in his bedroom. They asked Gauger, a recovering alcoholic, if he hypothetically could have blacked out and murdered his parents. Gauger then described how he would have murdered his parents in such a situation. The "confession" was used against him during the trial. It was not recorded, and the jury had to question whether they believed Gauger's word over the police. They convicted Gauger, and the judge sentenced him to die. "We need the mechanism to keep the police and prosecution honest," Gauger said, insisting that all police interrogations must be recorded. Gauger and his family were out of money and turned to a law professor at Northwestern University who had earned a reputation for helping overturn wrongful convictions. Sixty law students prepared an appeal. In 1996, an appellate court determined Gauger's confession should not have been used as evidence in the murder trial and ordered a new trial. Prosecutors in McHenry County, where he now lives with his wife, never retried him. Meantime, Gauger learned ATF investigators planted an electronic bug at a motorcycle gang's chapter headquarters. The bureau was investigating motorcycle gang turf wars. Federal investigators heard people talking about the murders. Randall Miller is serving a sentence of life without parole for the murders. James Snyder was sentenced to 45 years but could be released sooner for cooperating with investigators, Gauger said. Still, Gauger does not wish his parents' murderers on death row. People can have remorse, he said. "There is no place in society for us to say, 'Yes, this man is evil. He needs to be killed,' " he said. (source: Desert Morning News) SOUTH DAKOTA: Prosecutor Considers Death Penalty In Webster Murder The Day County state's attorney says capital punishment will be a major decision in the case against John Trautman, a Webster man accused of killing a 26-year-old mother last week. Danny Smeins says he has not yet decided whether to seek the death penalty in the death of Stacey Gaikowski. He says all the evidence needs to be examined, and much of it is still in the hands of law enforcement. Smeins says the 39-year-old Trautman had been under investigation for a "prior matter." He says Trautman was an immediate suspect in the slaying because of what had taken place with the earlier matter. The prosecutor did not elaborate. (source: Associated Press) ALABAMA----impending execution Court denies inmate's execution preference The Alabama Supreme Court on Tuesday rejected a request to delay the execution of a Talladega man, who said he wants to die by electrocution and not by lethal injection. John W. Peoples Jr., convicted of murdering a Pell City couple and their 10-year-old son before taking their vintage Chevrolet Corvette, had asked the Alabama Supreme Court to delay his execution, set for Thursday at 6 p.m. CDT at Holman Prison near Atmore. In court papers filed Monday, Peoples said death by lethal injection would violate the death warrant issued against him and the 1984 court order calling for his death by electrocution, the means of executing condemned inmates in Alabama at the time. Alabama changed its primary method of execution from electrocution to lethal injection beginning July 1, 2002. "I think they correctly denied his motion," said Alabama Assistant Attorney General Beth Hughes. She said Peoples' recent arguments about the method of execution were a delay tactic without merit. Alabama law states inmates who were sentenced to death row prior to July 1, 2002 could have requested death by electrocution by July 31, 2002. Peoples sent his first letters asking for the electric chair to the Holman warden and Hughes this month. Prosecutors argued that Peoples simply made his request too late. No other death row inmate has requested death by electric chair since Alabama changed its execution method, Hughes said. "It was a surprise because (the defense) had the opportunity to do that and they didn't," Hughes said. William C. Cagney, Peoples' New Jersey-based attorney, did not immediately return calls Tuesday from The Associated Press. Peoples, now 48, was convicted in 1983 in the murders of Pell City businessman Paul G. Franklin, and his wife, Judy Choron Franklin, both 34, and Paul Franklin Jr., their 10-year-old son. The boy and his mother were beaten to death with a rifle, and Peoples led authorities to the spot where their bodies were dumped in a field. The man's body was too decomposed by the time he was found for investigators to determine a cause of death. Prosecutors in Talladega contended that Peoples killed the three because he wanted the Fanklins' 1968 red Corvette. Peoples was arrested in the Corvette soon after the slayings. In his request for a delay of execution, Peoples also argued that his trial attorney failed to make arrangements to get him a life sentence for directing authorities to the bodies. "John's trial attorney abandoned him to a death sentence, told his jury they had no 'options' but to execute him," Peoples' state Supreme Court filing reads in part. According to court records, Judy Franklin wrote Peoples' name inside a clothes hamper with eye makeup before she and her son were abducted. Peoples' cousin, Timothy Gooden, also testified for the prosecution under a plea deal that allowed him to receive a life sentence with the possibility of parole. Gooden, who was with Peoples the night of the killings, later claimed investigators pressured him into testifying falsely against Peoples. Gooden was re-indicted for capital murder and, after pleading guilty, sentenced to life without parole. (source: Associated Press) ******************************************* Prisoner asks to be electrocuted An Alabama prisoner scheduled to die by lethal injection Thursday has asked the state to electrocute him instead. John W. Peoples, 48, asked the Alabama Supreme Court to stay, or delay, his death, saying execution by lethal injection would violate the death warrant and the court order calling for his death by electrocution, the only method the state was using at the time of his conviction in 1983. State authorities asked the court to refuse his request, saying it is a delay tactic without merit. "Peoples should not be rewarded for his transparent attempt to game the system. He offers no legitimate reason for waiting until the last minute to challenge the State's method of execution," Alabama Assistant Attorney General Beth Hughes wrote in the state's response. Peoples was convicted of the 1983 murders of Paul and Judy Franklin and their 10-year-old son, Paul Jr. Authorities say the motive was Franklin's red Corvette. Judy Franklin and Paul Jr. were beaten to death with a rifle. Paul Sr.'s body was too decomposed to determine a cause of death. Peoples also contends in his motion for a stay that he received bad counsel from an attorney who told him to help law enforcement early on in a high-profile missing-persons case "but failed to counsel appropriate arrangements with law enforcement authorities to resolve the matter short of a death sentence," his Sept. 16 motion reads. Peoples led investigators to the bodies, but received nothing in exchange. In papers filed Friday, Peoples claims that he must be re-sentenced in Talladega County before his execution is legal. Alabama lawmakers switched the state's method of execution from electrocution to lethal injection in July 2002. The law gave death row inmates 30 days to file requests to be electrocuted if they wanted to die that way. Peoples' argued that he never made that request nor waived his rights to have his sentence handed down in the specific terms on the death warrant. On Sept. 8, he sent a handwritten note requesting the electric chair to Holman Prison Warden Grantt Culliver, who carries out executions. In asking for a re-sentencing, Peoples raised the case of Clyde Bachelor, who had been sentenced "to be hanged by the neck until he is dead," in accordance with the state's practice at the time. Before he was hanged, the state switched to electrocution. In 1927, the Alabama Supreme Court sent his case back to the Circuit Court for resentencing to electrocution. Hughes argued that Bachelor's case was different, in part because Bachelor raised his claims early on - not days before execution. Alabama's electric chair, known as "Yellow Mama," remains in good working order, said Alabama prisons spokesman Brian Corbett. All 9 people executed since the law was changed have died by lethal injection. (source: The Birmingham News) TENNESSEE: Jury hears doomed woman's futile pleas -- 911 tape captures children's struggle with father, gunshots The audiotape began with a frantic Freda Elliott telling a 911 operator that her ex-husband, Parker Ray Elliott, had broken into her house with violence on his mind. The call ended 8, excruciatingly long minutes later with the woman's shout for mercy: "Parker, please don't! Don't hurt my babies!" Followed by deafening silence. The 911 tape was the final piece of the state's proof in the first-degree murder trial of Parker Ray Elliott, 43, who is charged with killing his ex-wife, Freda, 42, and the couple's daughter, Rachel, 18. Previously in testimony, the jury heard from Seth Elliott, 16, the only survivor of the June 24, 2004, attack at the family's home near Culleoka. They also had seen a police-made video of the crime scene, including an image of Rachel's lifeless body lying on her mother's bed and close-up images of .22-caliber cartridges littering the carpet. Rachel and her mother were shot multiple times in the head. But it was the 911 tape that had a decided effect on the jury of seven men and five women. One member of the panel wiped away tears once, twice, three times. A bailiff offered facial tissues to one alternate juror, who also cried. The remainder of the jury, brought in from Wayne County to hear the trial, listened with pained expressions. Before the introduction of the audiotape, Circuit Judge Stella Hargrove, outside of the jury's hearing, warned the audience she would not tolerate emotional outbursts while the tape was played. With about 16 of Freda Elliott's family in the courtroom, Hargrove asked spectators to seriously consider whether they wanted to hear the disturbing tape. Most of the woman's family left the room, including Seth. The defense, knowing the tape probably would have a detrimental effect on its case, had tried to stop its introduction. Assistant Public Defender Shipp Weems argued that Freda Elliott was hiding in a closet in her bedroom at the time of making the 911 call and did not witness what was happening elsewhere in the house. Weems said this lack of "personal knowledge" had been cause in another case to exclude similar evidence from a jury. The defense, having already admitted that Parker Ray Elliot was the shooter, is seeking a decision based on diminished capacity, in other words, that the man lacked the mental clarity at the time of the shootings to commit first-degree murder. If found guilty, the defendant could receive the death penalty. But District Attorney General Mike Bottoms noted that near the end of the recorded emergency call, Freda Elliott identified her attacker, her former husband, by name. Hargrove agreed with the prosecution. Jurors leaned forward when the "play" button was pushed. Members of the prosecution and defense teams eyed papers on their desks for the most part. Sheriff's investigators in the case, who no doubt had heard the tape many times, leaned over in their seats, elbows dug into knees, hands on their faces. What the jury heard for eight minutes was a woman frantic for help to save her children from harm as Seth, armed with a Louisville Slugger baseball bat, and Rachel, trying without success to push her father back into the living room, struggled with their father. At times, the mother's voice was just above a frightened whisper. "He's going to kill them, hurry." As the confrontation escalated, as the struggle grew closer to her bedroom, Freda was inconsolable in her panic and fatalistic dread, only made worse when shots reverberated through the small house. "He's coming. He just shot the gun again. Please! Please!" Finally, about 7 minutes into the recording, it is obvious that the shooter is in the bedroom and knows the frightened woman is in the closet. There is a commotion of a door being broken and shots being fired and Freda's voice shouting her final words. "Parker, please don't! Don't hurt my babies!" The defendant, dressed in a blue, long-sleeved dress shirt, his back to the gallery, showed no emotion as the incriminating tape played out. He sat with elbows on the table, his fingers woven together and pressed so tightly against his mouth his knuckles were often white. As the tape neared its grisly conclusion, defendant Elliott's shoulders slowly listed to the left. "The state closes its case," Bottoms told Hargrove after the "stop" button was pushed. The defense team, led by Public Defender Claudia Jack, begins its case today. She announced the first witness will be an expert, most likely a mental health practitioner. She also told the court that Parker Ray Elliott will not testify in his own defense. Initially the trial was expected to last at least 10 days, but now is expected to go to the jury before the weekend. (source: Tennessean)
