Feb. 4
IOWA: Prison guard criticized for e-mailing execution poem A Newton prison supervisor has drawn criticism from the head of Iowa's prison system for e-mailing a poem to co-workers that satirizes California's execution of convicted murderer Stanley "Tookie" Williams. The poem, "'Twas the Night before Tookie's Execution," was distributed by Lt. Ron Wheeler late last year, and several versions have circulated on the Internet. The incident has been investigated by the Newton prison's warden and will also be reviewed by Gary Maynard, the director of the Iowa Department of Corrections. Prison officials would not say whether Wheeler will be reprimanded. "This is inappropriate, certainly inappropriate," Maynard told The Des Moines Register on Friday in a copyright story. Williams, 51, the founder of the Crips street gang, died by lethal injection Dec. 13 at San Quentin prison for murdering four people during 2 1979 holdups. He claimed to have redeemed himself by writing children's books encouraging youngsters to stay away from gangs. The poem, a parody of "'Twas the Night Before Christmas," describes a person watching Williams' execution on television: "It seemed that lady justice had gotten her way, and that there would be one less savage today." The poem also describes Williams getting a lethal injection and the reaction from celebrities who had publicly opposed his death: "Then up from the actors there arose such as cry, they had failed in their mission, and Tookie did die!" The poem called the celebrities "liberal, half queer" and "cop haters." Fred Scaletta, an Iowa prison spokesman, said Wheeler used the state's computer system in December to forward the poem to co-workers -- a violation of prison policy. Wheeler was not immediately available Friday. Iowa Board of Corrections members said they disapprove of Wheeler's actions. "This is ignorant and racist, among other things," said Renee Sneitzer, a board member and Cedar Rapids lawyer. "This is unacceptable on several levels, more than just race." Board member Johnie Hammond of Ames said: "I am very much opposed to the death penalty and it bothers me when someone is so angry that they rejoice at someone's death." (source: Associated Press) USA: Minimum Wage: The $1.50 Attorney Fee With so much media attention focused on outrageously large attorney fees awards and the everskyrocketing cost of litigation, it would be easy to overlook a recent en banc decision of the 10th U.S. Circuit Court of Appeals awarding a $1.50 attorney fee in favor of a lawyer who prevailed at trial on a federal civil rights claim for an imprisoned client. In exchange for that $1.50 attorney fee, the lawyer not only represented his client at trial, but also after trial -- and for no additional compensation -- the lawyer briefed and argued against the defendant's appeal to the 10th Circuit. He then filed supplemental briefs and reargued the appeal before that appellate court sitting en banc. Although I do not know for certain how many hours the plaintiffs lawyer worked to conduct trial and then handle the case on appeal, if the lawyer worked exactly 150 hours, his effective hourly rate on the case would equal one cent. A lawyer who charges one cent per hour, and manages to win, would be difficult to compete against in the marketplace for clients. Fortunately for those of us who charge our clients more than that for legal services, the plaintiffs lawyer who recently received a $1.50 attorney fee from the en banc 10th Circuit did not willingly agree to accept such meager compensation. Rather, his unfulfilling payday was the result of a federal law known as the Prison Litigation Reform Act (PLRA). Our nation's federal civil rights laws contain an attorney fee - shifting provision whereby a plaintiff who has prevailed on a federal civil rights claim ordinarily is entitled to recover from the defendant not only compensatory damages but also the plaintiff's attorney fees. Such legislatively authorized fee - shifting is an exception to the ordinary "American rule" whereby each party to a lawsuit bears its own fees and costs, regardless of who prevails. In 1995, concerned with the large volume of meritless prisoner civil rights litigation clogging the federal courts, Congress enacted the PLRA. Among other things, the PLRA imposes a ceiling on the amount of attorney fees that may be awarded against the defendant and in favor of counsel for a prisoner who has prevailed in a federal civil rights action. The PLRA's attorney fee cap is set at 150 percent of the monetary award in the plaintiff's favor. The lawyer for a prisoner who receives an especially large monetary award would probably not feel the effect of the PLRA's fee cap. But for an attorney whose client recovers nominal damages in the amount of $1.00, the PLRA's fee cap mandates that the attorney fee award in favor of the plaintiff, and against the defendant, cannot exceed $1.50. By contrast, in nonprisoner federal civil rights litigation, a plaintiff who recovers a nominal award of damages may, at the discretion of the court, nevertheless receive a meaningful attorney fee award. Thus, attorneys for imprisoned clients who prevail on a civil rights claim but only recover nominal damages are precluded from recovering anywhere near full compensation for their work, while attorneys for non - incarcerated clients with an identical claim may, at the discretion of the court, recover their actual attorney fees from the defendant. In the case from Kansas that recently produced a ruling from the en banc 10th Circuit, the plaintiff's civil rights claim arose from events that predated his incarceration. Although the PLRA's attorney fees cap appears to apply both to civil rights claims that arose before incarceration and to civil rights claims that arise during incarceration, the federal district court (which had appointed counsel for the plaintiff) ruled that it would be absurd to apply the PLRA's fee cap to claims arising before imprisonment. As a result, the district court awarded to plaintiff's counsel a fee of $9,680. The defendant, believing that his liability for plaintiff's attorney fees should be capped under the PLRA at $1.50, appealed to the 10th Circuit from the district court's much larger award. The appeal initially came before a 3-judge 10th Circuit panel, which by a 2-1 vote affirmed the trial court's attorney fee award. The majority agreed that applying the PLRA's fee cap to civil rights violations that occurred prior to incarceration would be absurd, and thus the PLRA's plain language capping fees on all prisoner civil rights actions, regardless of when they accrued, could be disregarded. Armed with a strong dissenting opinion from a judge on the appellate panel, the defendant sought rehearing en banc. The 10th Circuit agreed to rehear the case before the full court, and late last month the en banc court unanimously overturned the district court's absurdity ruling. The en banc 10th Circuit ruled, without dissent, that the maximum attorney fee that the defendant could be required to pay to compensate plaintiff's counsel was $1.50, regardless of when the civil rights violation at issue occurred. If it is any consolation to the latest recipient of a $1.50 fee award under the PLRA, my research discloses that both the 1st Circuit and the 8th Circuit have likewise upheld the imposition of $1.50 attorney fee awards on nominal damages awards of $1.00, while the 5th Circuit has upheld the imposition of a $3.00 attorney fee award on nominal damages of $2.00. Although the 10th Circuit's recent en banc ruling demonstrates that the PLRA's attorney fees cap is not so lacking in justification as to satisfy the stringent requirements of the legislative absurdity doctrine, it does appear that Congress, fed up with the volume of frivolous litigation brought by prisoners, has overreacted by making it more difficult for prisoners with meritorious but financially inconsequential federal civil rights claims to attract qualified counsel than it is for non-prisoners with similar claims. In accordance with the U.S. Supreme Court's 5-4 ruling from 1992 in Farrar v. Hobby, a persuasive argument can be made for applying PLRA's fee cap to all civil rights litigation, whether brought by prisoners or not. But depriving all civil rights plaintiffs who recover nominal damages of adequate counsel fees would likely prove politically unpalatable, perhaps explaining why the fee cap has only been applied to a group that possesses the least amount of political influence: incarcerated prisoners. In response to an enormous volume of frivolous prisoner litigation, Congress decided not only to deter frivolous suits but also to make it much more difficult for prisoners to obtain counsel to handle meritorious civil rights claims of small monetary value. While Congress' decision to address frivolous prisoner litigation by deterring meritorious suits may not qualify as absurd, it certainly does not qualify as especially just toward those pursuing valid civil rights claims from inside a prison cell. (source : Law.com (Howard J. Bashman operates his own appellate litigation boutique in Willow Grove, Pa., a suburb of Philadelphia. He can be reached via email at [email protected]. You can access his appellate Web log at http://appellateblog.com/. ) CALIFORNIA: Man Charged With Killing Couple Could Face Death Penalty Contra Costa County prosecutors say a man charged with fatally stabbing his sister and her husband in El Cerrito could face the death penalty. Edward Wycoff allegedly killed Julie Wycoff Rogers and her husband Paul Rogers after breaking into their rented home Tuesday morning. He was charged with 2 counts of murder. Wycoff was reportedly angered at how the Rogers were raising their children and handling an aunt's finances. Prosecutor Harold Jewett said during a court hearing yesterday that both victims were stabbed and bludgeoned with a wheelbarrow handle. Wycoff is due back in court on February 16th to enter a plea. (source: Associated Press)
