For those of you not keeping up with the latest gossip:

told you so:

http://movies.yahoo.com/news/tom-cruise-drops-50-million-lawsuit-against-life-050000610.html

It IS so hard being right all the time.

There's no way I could pass up this shot at Florida:

http://news.yahoo.com/blogs/sideshow/florida-man-tried-trading-alligator-for-12-pack-of-beer-212400309.html

Talk about in "plain view"!

http://deadspin.com/how-a-reporter-eavesdropped-on-barry-bondss-grand-jury-1476503119

For you old timers who had Charlotte Rembar's case:

SCOTUS and the covenant of good faith and fair dealing:

http://www.law.com/jsp/nlj/PubArticleNLJ.jsp?id=1202630422846&back=law

Ah-h-h, the power of words! Learn from this.

http://torrentfreak.com/mpaa-banned-from-using-piracy-and-theft-terms-in-hotfile-trial-131129/

As I have been teaching for years:

David Gingras writes the best responses to demand letters:

http://tmz.vo.llnwd.net/o28/newsdesk/tmz_documents/1127-dr-dre-letter.pdf

As my computer was fouling up, I found this:

http://www.courts.ca.gov/opinions/documents/A129583.PDF

Fingers crossed for all the Cal Bar takers today

Today should be a national holiday . . .

Today is the 144th birthdate of the greatest trialawyer who ever lived: Earl Rogers. If you fashion yourself as a litigator (or a litigator to be) and you have not read and studied Final Verdict, you will never understand what trial law really is and the sacrifices it takes to be successful.

PS - And, like me, he taught at USC!

Okay, time to open your minds again:

Does this change Kyllo?

http://www.vice.com/read/denver-police-are-using-a-nose-telescope-to-sniff-out-peoples-weed?utm_source=vicefbus

The question has always been, not why I teach, but why you need to learn:

http://www.nbcnews.com/business/why-johnny-cant-write-why-employers-are-mad-2D11577444

Remember the discussion of my rights wearing my "marijuana suit"?

http://www.ca2.uscourts.gov/decisions/isysquery/50da7012-6a1e-4372-9ead-a6a4ae20e173/3/doc/12-2233Acom_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/50da7012-6a1e-4372-9ead-a6a4ae20e173/3/hilite/

Ok, a little sports comment for me: like teaching, coaching does matter (just look at USC now):

http://sports.yahoo.com/news/ncaaf--nick-saban-breaks-character--uses-trick-play-to-turn-tide-in-rout-of-tigers-065420079.html

I often wonder what kind of world we really live in:

http://www.huffingtonpost.com/mark-godsey/for-the-first-time-ever-a_b_4221000.html

There are good lawyers, there are average lawyers, and then . . .

http://abovethelaw.com/?p=282771#more-282771

State v. Glas anyone

http://www.bostonmagazine.com/news/blog/2013/11/05/lawyer-defends-mbta-up-skirt-photos-michelle-menkin/

After hearing the Cal Supreme Court arguments in the Stephen Glass case,

sometimes you just wonder:

http://it-lex.org/lawyer-falls-for-internet-brokerage-scam-receives-public-censure/

http://www.scribd.com/doc/181793051/Order-Dismissal-for-Want-of-Prosecution

and I was worried about dog sniff searches!

4 On Your Side investigates traffic stop nightmare

Updated: 11/05/2013 5:27 PM | Created: 11/04/2013 10:35 PM
By: Chris Ramirez, KOB Eyewitness News 4

This 4 On Your Side investigation looks into the actions of police officers and doctors in Southern New Mexico. 

A review of medical records, police reports and a federal lawsuit show deputies with the Hidalgo County Sheriff's Office, police officers with the City of Deming and medical professionals at the Gila Regional Medical Center made some questionable decisions.

The incident began January 2, 2013 after David Eckert finished shopping at the Wal-Mart in Deming.  According to a federal lawsuit, Eckert didn't make a complete stop at a stop sign coming out of the parking lot and was immediately stopped by law enforcement.      

Eckert's attorney, Shannon Kennedy, said in an interview with KOB that after law enforcement asked him to step out of the vehicle, he appeared to be clenching his buttocks.  Law enforcement thought that was probable cause to suspect that Eckert was hiding narcotics in his anal cavity.  While officers detained Eckert, they secured a search warrant from a judge that allowed for an anal cavity search.  

The lawsuit claims that Deming Police tried taking Eckert to an emergency room in Deming, but a doctor there refused to perform the anal cavity search citing it was "unethical."

But physicians at the Gila Regional Medical Center in Silver City agreed to perform the procedure and a few hours later, Eckert was admitted.

What Happened

While there, Eckert was subjected to repeated and humiliating forced medical procedures.  A review of Eckert's medical records, which he released to KOB, and details in the lawsuit show the following happened:

1. Eckert's abdominal area was x-rayed; no narcotics were found.  

2. Doctors then performed an exam of Eckert's anus with their fingers; no narcotics were found.

3. Doctors performed a second exam of Eckert's anus with their fingers; no narcotics were found.  

4. Doctors penetrated Eckert's anus to insert an enema.  Eckert was forced to defecate in front of doctors and police officers.  Eckert watched as doctors searched his stool.  No narcotics were found.

5. Doctors penetrated Eckert's anus to insert an enema a second time.  Eckert was forced to defecate in front of doctors and police officers.  Eckert watched as doctors searched his stool.  No narcotics were found.

6. Doctors penetrated Eckert's anus to insert an enema a third time.  Eckert was forced to defecate in front of doctors and police officers.  Eckert watched as doctors searched his stool.  No narcotics were found.

7. Doctors then x-rayed Eckert again; no narcotics were found.  

8. Doctors prepared Eckert for surgery, sedated him, and then performed a colonoscopy where a scope with a camera was inserted into Eckert's anus, rectum, colon, and large intestines.  No narcotics were found.  

Throughout this ordeal, Eckert protested and never gave doctors at the Gila Regional Medical Center consent to perform any of these medical procedures.  

"If the officers in Hidalgo County and the City of Deming are seeking warrants for anal cavity searches based on how they're standing and the warrant allows doctors at the Gila Hospital of Horrors to go in and do enemas and colonoscopies without consent, then anyone can be seized and that's why the public needs to know about this," Kennedy said.  

Search Warrant Concerns

There are major concerns about the way the search warrant was carried out.  Kennedy argues that the search warrant was overly broad and lacked probable cause.  But beyond that, the warrant was only valid in Luna County, where Deming is located.  The Gila Regional Medical Center is in Grant County.  That means all of the medical procedures were performed illegally and the doctors who performed the procedures did so with no legal basis and no consent from the patient.  

In addition, even if the search warrant was executed in the correct New Mexico county, the warrant expired at 10 p.m.  Medical records show the prepping for the colonoscopy started at 1 a.m. the following day, three hours after the warrant expired.

"This is like something out of a science fiction film, anal probing by government officials and public employees," Kennedy said.

No Comment

KOB reached out to the attorneys representing the defendants in the lawsuit and all declined to comment on the situation.  The attorneys said it's their personal policy not comment on pending litigation.  

4 On Your Side Investigative Reporter Chris Ramirez cornered Deming Police Chief Brandon Gigante.  

"As the police chief what reassurances could you give people when they come through your town that they won't be violated or abused by your police officers?" Ramirez asked Chief Gigante.

"We follow the law in every aspect and we follow policies and protocols that we have in place," Chief Gigante replied.

"Do you think those officers in this particular case did that?" Ramirez asked.

Gigante didn't answer, instead he referred Ramirez to his attorney.

The Lawsuit

David Eckert is suing The City of Deming and Deming Police Officers Bobby Orosco, Robert Chavez and Officer Hernandez.

Eckert is also suing Hidalgo County Hidalgo County Deputies David Arredondo, Robert Rodriguez and Patrick Green.

Eckert is also suing Deputy District Attorney Daniel Dougherty and the Gila Regional Medical Center including Robert Wilcox, M.D and Okay Odocha, M.D. 

Math skills challenged as a lawyer?

Take a look at this case from Judge Posner:

http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2013/D10-28/C:12-2682:J:Posner:aut:T:fnOp:N:1230739:S:0

If you are going into law simply to evade math and science skills, you are avoiding what you need to know.
More and more areas of law are being influenced by the growth of technology; should you really avoid developing these skills; math skills are needed and can be developed just like any language:

http://www.theatlantic.com/education/archive/2013/10/the-myth-of-im-bad-at-math/280914/
"Basic ability in math is not the product of good genes, but hard work."

And this study will help your LSAT prep, too:

http://joshblackman.com/blog/2013/10/28/which-undergraduate-majors-score-the-highest-on-lsat/

If I had not retired from criminal defense work . . .

IN THE CIRCUIT COURT

FOR WILLIAMSON COUNTY, TENNESSEE

STATE OF TENNESSEE,

Plaintiff

v.

DONALD POWELL,

Defendant

______________________________________________________________________________

RESPONSE TO GOVERNMENT'S MOTION IN LIMINE TWO —

"The Government"

______________________________________________________________________________

            The government has moved to ban the word "government." The State of Tennessee offers

precisely zero legal authority for its rather nitpicky position, and the defense can find none. The

Plaintiff has failed to carry its burden on this motion. Moreover, the Plaintiff's proposed ban on

speech would violate the First Amendment. The motion should be denied.

            First, numerous courts do frequently use the term "the government" to describe the

prosecution. After all, "[t]he prosecutor's office is an entity[,] and as such it is the spokesman for

the Government." Giglio v. United States, 405  U.S. 150, 154 (1972). For other instances,

including many instances where the term is applied to state governments, see, e.g., Bell v.

Wolfish, 441 U.S. 520 (1979);Brewer v. Williams, 430 U.S. 387 (1977); In re: Winship, 397 U.S. 358 (1970). And although Tennessee state courts more commonly use the designation "the State," even they sometimes use the phrase "the government," and not just when quoting another court, either. See, e.g., Hickman v. State, 153 S.W.3d 16, 26 (Tenn. 2004); House v. State, 44 S.W.3d 508, 512, 513 (Tenn. 2001).State v. Caughron, 855 S.W.2d 526, 545-46 (Tenn. 1993); State v. Turnbill, 640 S.W.2d 40, 43 (Tenn. Crim. App. 1982); see alsoTenn. R. Crim. P. 16(a)(1)(F)(ii).

            Overall, it thus seems doubtful that all these judges are trying to demean prosecutors.

In any event, such a ban on terminology would violate the First Amendment. In Gentile v.

State Bar of Nevada, a divided Supreme Court noted (in various split opinions) that the First

Amendment does protect a lawyer working on a criminal case. 501 U.S. 1030 (1991) (Reversing

disciplinary sanction against lawyer who held a press conference). However, the court could not

fully agree on to what extent. But even when a court may regulate speech, this fact alone "does

not mean . . . that lawyers forfeit the First Amendment rights, only that a less demanding

standard applies," compared, e.g., to regulations affecting the press. Id. at 1082 (O'Connor,

concurring). In Gentile, the court upheld a restriction on speech posing a "substantial likelihood

of materially prejudicing an adjudicative proceeding." See id. at 1033. In the case sub judice, the

proposed word ban would not even come close to meeting this standard. Nor does it basically

serve any legitimate governmental purpose. Therefore, the ban violates the First Amendment.

            Should this Court disagree, and feel inclined to let the parties basically pick their own

designations and ban words, then the defense has a few additional suggestions for amending the

speech code.

            First, the Defendant no longer wants to be called "the Defendant." This rather

archaic term of art, obviously has a fairly negative connotation. It unfairly demeans, and

dehumanizes Mr. Donald Powell. The word "defendant" should be banned. At trial, Mr. Powell

hereby demands be addressed only by his full name, preceded  by the title "Mister."          Alternatively, he may be called simply "the Citizen Accused." This latter title sounds more respectable than the criminal "Defendant." The designation "That innocent man" would also be acceptable. 

            Moreover, defense counsel does not wish to be referred to as a "lawyer," or a "defense

attorney." Those terms are substantially more prejudicial than probative. See Tenn. R. Evid. 403.

Rather, counsel for the Citizen Accused should be referred to primarily as the "Defender of the

Innocent." This title seems particularly appropriate, because every Citizen Accused is presumed

innocent. Alternatively, counsel would also accept the designation "Guardian of the Realm."

            Further, the Citizen Accused humbly requests an appropriate military title for his own

representative, to match that of the opposing counsel. Whenever addressed by name, the name

"Captain Justice" will be appropriate. While less impressive than "General," still, the more

humble term seems suitable. After all, the Captain represents only a Citizen Accused, whereas

the General represents an entire State.

            Along these same lines, even the term "defense" does not sound very likeable. The whole

idea of being defensive, comes across to most people as suspicious. So to prevent the jury from

being unfairly misled by this ancient English terminology, the opposition to the Plaintiff hereby

names itself  "the Resistance." Obviously, this terminology need only extend throughout the

duration of the trial — not to any pre-trial motions. During its heroic struggle against the State,

the Resistance goes on the attack, not just the defense.

WHEREFORE, Captain Justice, Guardian of the Realm and Leader of the Resistance,

primarily asks that the Court deny the State's motion, as lacking legal basis. Alternatively, the

Citizen Accused moves for an order in limine modifying the speech code as aforementioned, and

requiring any other euphemisms and feel-good terms as the Court finds appropriate.

Respectfully submitted,

______________________________

Drew Justice, #29247

Counsel for Donald Powell

125 Cedar Creek Drive

Franklin, TN 37067

(615) 419-4994

drew@justicelawoffice.com

Never, ever lie in your law school application

http://www.newyorklawjournal.com/PubArticleNY.jsp?id=1202624319541&Admission_Rescission_of_St_Johns_Student_Is_Upheld

Remember the Lindsay Lohan letter?

Here is a response to a similar letter:

http://www.scribd.com/doc/176257074/Albert-Pujols-Case-Settlement-Offer

If this were your only competition, perhaps law school apps would be easier

http://abovethelaw.com/2013/10/man-tries-to-outsource-applying-to-law-school-via-craigslist/#more-278763

Why preparation perspiration is often the highest virtue

http://joshblackman.com/blog/2013/10/16/that-time-justice-sotomayor-answered-justice-alitos-question-because-the-lawyer-couldnt/

If you want to have some fun, read the Trump complaint

http://i.cdn.turner.com/money/2013/images/08/26/Verified_Petition.pdf?iid=EL

Why my class should be mandatory for every plaintiff's lawyer in America . . .

http://docs.justia.com/cases/federal/district-courts/mississippi/msndce/3:2012cv00100/33737/40/0.pdf?ts=1376380861

I couldn't let this one go by - I have a new favorite lawyer:

http://www.scribd.com/doc/148538709/Stephen-Kaplitt-Cease-and-Desist-Response-Letter

Yes, you do laugh at first, BUT . . .

http://www.scribd.com/doc/138711177/35-Bar-and-Grille-v-City-of-SA-Order-Re-Prelim-Injunction-Part-I

If you are the attorneys for the clubs, how do you respond to this (and what if you're John Roberts)?

Gee-whiz, I guess what we teach does matter . . .

http://usnews.nbcnews.com/_news/2013/04/27/17946173-faa-suspends-employee-furloughs-bill-held-up-by-typos#.UXw9xiJ9NSw.twitter


Someone should lose a job for inability to proofread!

Do any counts get past a motion to dismiss?

http://images.eonline.com/static/news/pdf/RRSuit.pdf

Remember exigent circumstances?

http://www.supremecourt.gov/opinions/12pdf/11-1425_cb8e.pdf

Remember when we studied responses to demand letters . . .

http://www.popehat.com/2013/04/11/dr-bharat-aggarwals-attorneys-make-bumptious-legal-threats-against-retraction-watch-blog/

Duh! "Florida has the scariest schoolteachers in the United States"

http://news.yahoo.com/florida-scariest-schoolteachers-united-states-140221361.html

Be sure to check out the latest statistics on jobs

http://www.law.com/jsp/nlj/PubArticleNLJ.jsp?id=1202594953783

Jardines comments

Okay – since a couple of people actually asked (believe it or not) – a few early thoughts on Jardines (thanks to sabbatical, I was able to sleep in):

1. Told you so! (There really is a reason for Sally Handmaker’s gift of the “I am Always Right” sign in my office.)

2. Scalia had to “save” Kyllo, but that’s not really the reason for the majority decision (and notice how little real legal analysis there is): the State lost in the opening paragraph of their brief: their ONLY argument was that a dog sniff is not a search under Caballes. As someone we all know and love often argued in class, the holding in Caballes is that a dog sniff is not a search of a CAR on a PUBLIC highway and, as Kyllo held (independent of the garbage about something not in reach of the general public; but notice, the concurrence equates the thermal gun and the dog), a house is a HOUSE dammit, and the privacy rights are different (realize how the majority just eases through this argument).

Rabb was correct: once the police “search” (and in both Rabb and Jardines they WERE searching) a house, they have crossed the line and need to develop real probable cause for a warrant.

3. The concurrence finally gets to the Katz test, but it was not needed here but will be in closer cases (what happens when the dog is not “searching”?)

4. Exactly WHAT is the rule of the dissent?

5. When you have time, go back and read the transcript of the oral argument – really notice how little of what the Court asked ended up as dispositive.

OK - learning time

Listen to this and ask yourself:

http://www.supremecourt.gov/oral_arguments/argument_audio_detail.aspx?argument=12-144

Is this the best oral argument the one side could find?

Told you so! Notice the author

Jardines IS a search.


http://www.supremecourt.gov/opinions/12pdf/11-564_jifl.pdf

yes, this IS where I used to live

http://www.tampabay.com/news/localgovernment/fluoride-returns-to-pinellas-water-at-midnight/1276900

Oh, Florida . . .

make certain to read the whole article -

http://www2.highlandstoday.com/news/news/2013/feb/25/dog-shoots-man-accidentally-police-say-ar-643226/

If your goal is big law . . .

(but that is not the only reason to go to law school!)

pay attention to these statistics:

http://www.law.com/jsp/nlj/PubArticleNLJ.jsp?id=1202589189668&interactive=true

and
http://www.law.com/jsp/nlj/PubArticleNLJ.jsp?id=1202589190391&interactive=true&slreturn=20130125125721

and this breakdown by school and firm
http://www.law.com/jsp/nlj/PubArticleNLJ.jsp?id=1202588887416&et=editorial&bu=National%20Law%20Journal&cn=20130228nlj&src=EMC-Email&pt=NLJ.com-%20Daily%20Headlines&kw=Explore%20the%20Data%20Behind%20the%20Go-To%20Law%20Schools

Gosh, being so right all the time is exhausting

http://movies.yahoo.com/news/lindsay-lohan-chewed-pieces-pitbull-lawsuit-010859054.html

ah, commercial appropriation in NY...

Any oddsmakers on Jardines after this today?

http://www.supremecourt.gov/opinions/12pdf/11-817_5if6.pdf

OK, all you parody experts: win or lose on the chubby checker?

http://www.tmz.com/2013/02/14/chubby-checker-lawsuit-penis-measuring-app-hp-hewlett-packard-palm/

As always, "A-h-h-h Florida"

http://abovethelaw.com/2013/02/florida-im-still-tired-of-these-motherfkin-snakes-in-this-motherfkin-state/#more-223283

Not that I am to-o-o-o cynical, but might this have been planned?

http://news.yahoo.com/blogs/sideshow/man-prosthetic-eye-falls-during-trial-judge-declares-222913099.html

On sabbatical, but could not let this go by - why I love FL #6012

http://news.yahoo.com/dj-trial-lawyer-alleged-honey-trap-dui-120426139--abc-news-topstories.html