All posts by admin

Former Lawmaker Faces Spouse-abuse Case; AG’s Office Says Wife’s Dementia Precluded Consent to Sex

By all accounts, Donna Lou Young and Henry Rayhons were happily married.

But the former Iowa lawmaker is now awaiting trial in a felony spouse-abuse case. He is accused of having sex with his wife in a nursing home when she was allegedly incapable of consent because of her dementia, Bloomberg reports in a lengthy article.

The case against Rayhons was initiated by his wife’s daughters from a previous marriage and staff at the nursing home at which they had urged him to place his wife. Rayhons, who says he did nothing wrong, visited his wife there frequently. She died in August at age 78.

It is not clear that the state attorney general’s office, which is prosecuting the case, can even show that the couple had sex on the day in question, in May of this year, according to the Bloomberg article.

Meanwhile, observers with expertise in elder law issues and nursing home administration told the news agency they considered the medical assessment of Donna Lou Young’s ability to consent to sex inadequate. She could be unable to balance a checkbook, one pointed out, but eager to have sex with her husband, just as she would be able to determine when she was hungry and ready for a meal.

“Any partner in a marriage has the right to say no,” said professor Katherine Pearson of Penn State Dickinson School of Law. “What we haven’t completely understood is, as in this case, at what point in dementia do you lose the right to say yes?”

Read rest of article

Jailed Lawyer Says Judge Illegally Ordered Drug Test on His Urine

(Katheryn Hayes Tucker and Kathleen Baydala Joyner) A former Fulton County prosecutor who is fighting to limit the damage drug convictions will have on his legal career was jailed in Cobb County by a judge who suspected the lawyer was again under the influence.

Rand Csehy contends he was simply advocating for his client’s constitutional rights when Superior Court Judge Adele Grubbs held him in contempt and illegally ordered a urine sample for a drug test, according to his attorney, Daniel Kane. Kane also said Csehy maintains that test produced a false positive result.

Kane said his client “maintains the judge was agitated” because Csehy was insisting on a motion to suppress and for a jury trial for his client, who also faced drug charges.

“Rand feels that he was being pressured to plead this guy out and he wasn’t doing it,” said Kane.

The judge, who declined to comment, painted a different picture in her contempt order against the six-foot-tall, 195-pound, hazel-eyed defense attorney, as his booking record describes Csehy. Grubbs wrote that he was “disheveled,” that he was “perspiring profusely,” that his eyes were “bloodshot” and that he was “unable to stand without leaning on a bench or the podium.” The judge added that the court-ordered drug test showed the presence of cocaine and amphetamines.

Kane argued that the judge jailed his client on an “I don’t like the way you look in my courtroom” charge. He said he is researching the law to determine whether a judge has a right to order a urine test of anyone in a courtroom for any reason—other than a defendant. “It’s never happened before,” Kane said. “It’ll be a case of first impression.”

On the question of the judge’s right to order urine testing on a lawyer, Cobb County District Attorney Vic Reynolds said, “That’s probably what we’re going to be litigating.”

As to the claim that the urine test produced a false positive, Reynolds said the matter will be settled by a more time-consuming blood test, the results of which will likely be in next week. If the blood test shows drugs, then the DA said he will make a decision about whether to prosecute Csehy.

“A suspension of one to two years for [Csehy’s] criminal conduct would most certainly disrupt public confidence in the legal profession,” the bar argued.

The bar noted that Csehy’s crimes involved drugs and a loaded gun.

“[Csehy] made the conscious decision to carry a pistol loaded with 15 10mm cartridges while possessing methamphetamines and Ecstasy,” the bar’s response stated. “There was a substantial potential for violence given the number of guns [Csehy] routinely had in his possession during a time that he was admittedly impaired.”

Graham, Csehy’s lawyer in the discipline case, could not be reached for comment.

Read rest of article

And then Ferguson

(Marcia L. McCormick) The start of the semester is always a bit of a frenzied mess. I’m usually rushing to revise my syllabi, get a head start on finer tuned preparation for classes, finish up a summer project, find my grown-up clothes, and get my kids organized for the start of their school year. This year was no different. And then a police officer shot an unarmed teenager in Ferguson, Missouri, one of the ninety municipalities in St. Louis County. And then people started protesting, there was looting and a fire one night, and law enforcement engaged in a number of strategies to shut down the protests, including curtailing speech at night, prohibiting people from standing still on the city streets and sidewalks, and using tanks, tear gas, and rubber bullets. Much of the events were broadcast over live video feeds, so that people near and far could watch what was unfolding. In short, the metro St. Louis area was caught up in the turmoil, and between the public’s demand for answers and the focus of the national media, the demand for information about the law and the federal, state, and local legal systems was incredibly high. In addition, the demand for legal services and public outreach within the community was incredibly high. Those of us in the region who work in areas related to criminal law and criminal procedure, civil rights, race, the First Amendment, or other areas related to poor people and their interests were constantly on call for at least the first few weeks. We also had a responsibility to ensure that colleagues and students who lived in Ferguson were safe and supported, and that we were helping our students understand the issues and their relationship to the community as future lawyers.

After the jump I want to highlight the ways that my colleagues, students, and a group of SLU alumni jumped in with both feet to serve the community we are a part of and to empower them to work for needed reforms. Much of the groundwork had actually been laid well before the protests and police response through ongoing projects to serve underserved communities. Before I do that, I want to emphasize a broader point. It is often difficult, in the midst of things, to recognize the important moments, moments when our students and the communities we serve need to see us in a variety of lawyerly roles, or moments when we need to act because we can and others cannot. To me, the most remarkable part of the stories related to Ferguson is that many people recognized their moment, and many people chose to act. For a law school committed to social justice, to training men and women to service with others, recognition of the moment and action were particularly important and helped to renew at least my faith in that mission.

So now, let me highlight some of the important contributions that lawyers and students in the St. Louis community have made.

1. Arch City Defenders. Last year, Eric Miller highlighted the work of this 501(c)(3) entity, which provides holistic civil and criminal legal services to low income people in connection with other social services. In August, they issued a white paper, describing both abuses that violate the law in municipal court proceedings, and the way that the system of municipal violations and municipal court proceedings “push the poor further into poverty, prevent the homeless from accessing the housing, treatment, and jobs they so desperately need to regain stability in their lives, and violate the Constitution.” This white paper addresses several root causes of the alienation that led to the protests in Ferguson.

Read rest of article

Nonprofit funds Drug Prosecutor and Cops, who Turn Addicts into Informants

(Debra Cassens Weiss) A nonprofit group formed by business leaders in Altoona, Pennsylvania, has funded a drug prosecutor and police efforts to fight the drug trade.

The nonprofit, Operation Our Town, and the drug-busting operations it funds are drawing some critics, the Pittsburgh Post-Gazette reports. They argue the group is funding police tactics that turn drug users into informants, and other users into drug dealers, the Pittsburg Post-Gazette reports in a separate story.

Altoona uses so many informants, one informant told the newspaper, that the joke is that the city’s new name is “Al-tell-on-ya.”

Operation Our Town has received more than $2 million in donations in its eight-year existence, and typically more than half of the money goes to the Blair County District Attorney’s office, the story says. The money covers the salary of a prosecutor hired for drug cases, as well as support staff.

The DA also uses the money to help the police department buy equipment and pay for police overtime.

One informant, 27-year-old Juniper Eugene Robbins of Altoona, told the Post-Gazette that he made about 20 drug purchases while working undercover. “I picked certain people based on crap they did to me or my friends,” Robbins told the newspaper. “I didn’t want to take anybody big down,” he said, because he feared retaliation.

According to the story, it was common for crime victims to hire prosecutors in the 1800s, but the idea has lost favor.

If you have been accused of criminal intent and you are going into criminal litigation, your top and only priority will be to find an experienced, knowledgeable, and aggressive criminal lawyer to go to bat for you.

Read rest of article

Top State Court Nixes Lawyer’s Drunken-Driving Conviction ITop state court nixes lawyer’s drunken-driving conviction over blocked effort to consult counsel Over Blocked Effort to Consult Counsel

(Martha Neil) Arrested under suspicion of drunken driving in 2013, an Iowa family law attorney tried to consult with a criminal defense lawyer before taking a Breathalyzer test to determine his alcohol level at the Polk County Jail.

But when David Hellstern asked the arresting officer to let him speak privately over the phone with his lawyer, the officer refused. Hellstern took the Breathalyzer test, blew more than twice the legal limit and was subsequently convicted of operating while intoxicated after his motion to suppress the test was denied.

However, the Iowa Supreme Court reversed his conviction (PDF) last week. It agreed with Hellstern the arresting officer should have informed him that, while he had no right to consult privately with his lawyer by telephone, he would have been able to do so if his lawyer came to the jail in person.

The case is remanded for a new trial, but the court said the Breathalyzer test should be suppressed because of the officer’s failure to advise Hellstern of his right to consult in person with legal counsel.

Read rest of article

Teaching Copyright Law – Blurred Lines

(Jake Linford) “Blurred Lines,” the summer hit of 2013, is the subject of a copyright dispute. The estate of Marvin Gaye claims that the composers of the hit song (Pharrel Williams, Robin Thicke, and T.I.) appropriated the song from the Gaye hit, “Got to Give it Up.” Williams et all filed a declaratory judgment action, and moved to dismiss the Gaye family’s counterclaims alleging copyright infringement. Last month, Judge John A. Kronstadt denied a motion to dismiss. The order interests me for two reasons. Here I focus on the first.

I used the “Blurred Lines” case last year as the basis for a memo assignment on substantial similarity in my copyright class. For those of you who don’t think often about copyright law, proving infringement requires evidence of copying, which is usually inferred from 1) access to the original work and 2) substantial similarity between the original and the alleged copy. In this case, Alan Thicke said in multiple interviews that he and Pharell meant to write an homage to the Gaye song, so I let the students assume access. I tasked the students with summarizing the state of the law in the Ninth Circuit on protectable elements of musical composition, i.e., which elements in a song can be copied without triggering liability, and which elements cannot. I then asked them to opine on a likely outcome in the case. At the time, the report from a musicologist hired by the Gaye family had leaked via Hollywood reporter. There was no competing report from the Williams camp available at the time, so I invited a musicologist from across campus, Brian Gaber, to walk the students through differences in the two works of music as if he were advising Williams and his co-writers about the similiarity of the musical elements.

The students were nervous about digging into the similarities and differences in the musical composition (what the song would look like if you wrote it up in standard notation) and the sound recording (what the song sounds like). Some students expressed concern that classmates who knew something about music would perform better on the assignment than those who knew little or nothing. But I invited them to think of the assignment as an opportunity to learn about substantial similiarity in a musical context, and to develop the ability to teach themselves about a complex issue in the course of preparing for a case. This is a challenge that will face lawyers providing legal advice in any substantial similarity case. Handling substantial similiarity requires familiarizing oneself with the norms of an industry, and how common elements or scènes à faire (unprotectable stock elements) manifest in a given genre.

Read rest of article

Using Criminal Background Checks in the Hiring Process; Handle With Care

The Office of Legislative Research, whom I’ve praised in several posts before (here and here),recently issued a report on the consequences of a felony conviction on employment. 

Overall, it does a good job summarizing the issues when it comes to state employment.

But later on in the publication it states the following when discussing the federal restrictions on employer use of criminal background information:

Asking job applicants to indicate whether they have been convicted of a crime is permissible but Title VII of the Civil Rights Act of 1964 appears to restrict an employer’s ability to use criminal background information in the hiring process (42 USC. § 2000e, et seq.). The Equal Employment Opportunities Commission (EEOC), the federal agency that enforces Title VII, has decided that disqualifying people who have criminal records from jobs is discriminatory because the practice disproportionately affects African American and Hispanic men. (Those two groups generally have higher criminal conviction rates than do Caucasian men.)

The EEOC has ruled repeatedly that covered employers cannot simply bar felons from consideration, but must show that a conviction-based disqualification is justified by “business necessity.” The legal test requires employers to examine the (1) nature and gravity of the offense or offenses, (2) length of time since the conviction or completion of sentence, and (3) nature of the job held or sought. Under this test, employers must consider the job-relatedness of a conviction, the circumstances of the offense, and the number of offenses (EEOC Guidance 915.002, April 25, 2012:http://www.eeoc.gov/laws/guidance/upload/arrest_conviction.pdf).

Back in April, I discussed the EEOC’s latest guidance at length.  As a result, I think the OLR’s report has misstated the EEOC’s position and made it sound like the rules on criminal background check are set in stone at the federal level.  They are not.

criminal defense attorney goes to court to defend his clients against criminal accusations.

Read rest of article

Defense lawyers press for more info as probe of FBI agent linked to dismissed cases continues

(MARTHA NEIL) After news that the U.S. Attorney’s office in Washington, D.C., has agreed to dismiss 28 drug cases, including approximately a dozen that had already resulted in convictions, defense lawyers are pressing for more information.

An investigation is continuing concerning an FBI agent accused by the feds of tampering with evidence being held for trial, though he is not criminally charged. Meanwhile, defense lawyers want to know why some of the individuals whose cases are linked to the agent are being granted immediate dismissals, while others are not, the Washington Post (reg. req.) reports.

At a Monday hearing, U.S. District Judge Emmet G. Sullivan ordered the U.S. Attorney General’s office to provide daily updates on the progress of the investigation but said some defendants will have to await developments.

“The proper thing to do is to assess what happened, and then if we have to do something, we do so swiftly,” Sullivan said.

Attorney Robert Bonsib represents the agent being investigated. He declined to discuss specific allegations against his client but called some accusations “grossly overblown” and said his client is cooperating.

Read rest of article

Screening Applicants With Domestic Violence Criminal History

(Melanie Chaney) The National Football League’s handling of several recent high-profile domestic violence incidents involving players Ray Rice, Greg Hardy and Jonathan Dwyer has raised the national consciousness regarding how employers handle domestic violence issues. Domestic violence has been, and continues to be, a prevalent problem that creates many challenging issues for employers.  A recent Centers for Disease Control and Prevention study found that domestic violence victims lose a total of nearly 8.0 million days of paid work which is the equivalent of more than 32,000 full-time jobs as a result of the violence.  Employers have to consider issues including workplace security, whether discipline is appropriate for off-duty conduct, and handling accommodations for the victims of domestic violence.

Because of the many challenges that employers face, the natural inclination may be systematically to screen out all job applicants who have any criminal history of engaging in domestic violence, so that the agency can protect against the pernicious effects of domestic violence on the workplace.  However, employers should be extremely cautious in screening for particular types of criminal history, including when it involves domestic violence. Employers must comply with all applicable federal and state laws regarding the collection and consideration of criminal history records.

California “Ban the Box” Law

Since July 1, 2014, California state and local agencies are prohibited from making any inquiry about conviction history on the initial employment application.  This does not mean that the employer cannot inquire about convictions at all.  Rather, criminal background inquiries can only be made after the employer has established that the applicant meets the minimum qualifications of the position. This does not apply to those positions in which the agency is required by law to conduct a criminal history background check (e.g., peace officers) or to positions within a criminal justice agency.

Once minimum qualifications have been established, the employer can ask about criminalconvictions. In California, with the exception of peace officers, the agency still cannot ask about arrests not resulting in convictions.

Title VII of the Civil Rights Act of 1964

Title VII prohibits employment discrimination based on race, color, national origin, and other protected classifications. The Equal Employment Opportunity Commission (EEOC) interprets and enforces Title VII. According to the latest EEOC Guidance on the use of criminal records information, blanket criminal record exclusions may have a disparate impact on African-American and Hispanic applicants. While a policy that automatically screens out applicants with a domestic violence criminal history does not on the face of it discriminate against any protected classification, employers must avoid creating a disparate impact on any protected group.  If an applicant can establish that the policy has a disparate impact, then the employer must show the policy is job related for the position in question and consistent with business necessity.

Read rest of article

The Injustice of Bumpy Laws

(Adam Kolber) Whether a person has been sexually assaulted can turn on the reasonableness of a defendant’s belief that the alleged victim consented. Presumably, the more reasonably one believed consent was given, the less culpable one is for proceeding with sexual intercourse. Similarly, the more reasonably one believed consent was given, the less dangerous one is likely to be. For both these reasons, the amount of punishment a person receives should be at least in part a function of the reasonableness of his belief in consent. In my terminology, reasonableness is an input into a legal decision that likely ought to have a smooth relationship with the pertinent output: amount of punishment. As the input gradually increases, the output gradually decreases. At some point, a person’s beliefs are sufficiently reasonable that he no longer warrants any punishment (because he is not sufficiently culpable or because the costs of punishing him exceed the benefits).

In this instance, we seem to prefer smoothness in theory, but the criminal law’s treatment is in fact quite bumpy. One person deemed just reasonable enough that consent was given may have no criminal liability while a similarly-situated person who was just a bit less reasonable may be sentenced to at least the statutory minimum. Even though both defendants are virtually alike in terms of culpability and dangerousness, they are treated quite differently under our bumpy treatment of beliefs about consent: gradual changes to the reasonableness input do not affect conviction, except at a critical threshold. At that threshold, a gradual change in reasonableness has enormous effects. 

So there appears to be a deviation between our normative theories of criminal law and what the law actually does. Now, criminal law may actually be less bumpy than many other areas of the law. At sentencing, judges can smooth the relationship to some degree by giving more reasonable offenders shorter sentences than less reasonable ones. But judges are often limited by statutory minima. Such minima may have certain advantages, too, by controlling the allocation of sentencing discretion. But the value of such discretion must be weighed against the harms of deviating from our best theories of just punishment. And many retributivists are committed to never knowingly overpunishing an offender, allocations of discretion be damned.

Read rest of article