Law Fish News for 10-18-2018

15 Things You Need to Know When Dealing With the Police

As the 2015 Term opens: The Court’s unusual Eighth Amendment focus

Which makes it all the more interesting that in the Term that will open on October 5, five of the thirty-four cases in which the Court has granted review involve Eighth Amendment issues, four of them the death penalty. In a non-Eighth Amendment argument, Gleason also contends that the Kansas Supreme Court’s decision ought to be construed as one applying its own state law, not the Constitution, and thereby immune from federal review. The Supreme Court ruled in Miller v. Alabama that mandatory LWOP sentences, when imposed upon juvenile offenders, violate the Eighth Amendment. The Court has also directed argument on a separate question, which could preclude it from reaching the Eighth Amendment question at all: whether it has jurisdiction to review the Louisiana decision, on this successive habeas petition. 

Because Louisiana and Montgomery agree that the Court does have jurisdiction, the Court has appointed an amicus to brief and argue the other side of this question. Foster obviously raises concerns apart from the Eighth Amendment, and the Court could decide the case without reference to the death penalty at all. It is not a coincidence that the Court’s strongest Sixth Amendment Batson precedents are also capital cases; the specter of improper racial influences in administration of the death penalty has long haunted the Court. Some may well divert attention from what appears to be an unusual focus on Eighth Amendment cases and questions. The granting and argument of five Eighth Amendment cases to open the Supreme Court’s 2015 Term signals, I think, the deep cultural concerns that Americans in general seem to have regarding capital punishment. 

While affirming the defendants’ guilt, the Kansas Supreme Court nonetheless found reason to vacate their death sentences. Such cases thus starkly showcase the divergent views on the Eighth Amendment – and a nine-Justice Court is not different in this regard from much of America. So stay tuned for what may be the most dramatic Supreme Court discussion of Eighth Amendment values since its re-affirmation of capital punishment statutes long before the Justices’ law clerks were born. 

Keywords: [“Court”,”Amendment”,”Eighth”]

Five Ways to Keep Disputes Out of Court

U.S. corporations pay more than $20 billion a year to litigation attorneys-an alarming fact that distracts our attention from other and often more important business costs of litigating our disputes. An aggregate dispute managment system for coordinating, tracking, and troubleshooting all current disputes. To most people, ADR means any method of resolving disputes other than litigation, which is correct only if litigation includes not only cases that actually go to trial but also lawsuits that are settled before they get to court. The theory behind ADR is that settling disputes as painlessly as possible requires good communication, that good communication requires some degree of trust, and that the adversary system of dispute resolution nurtures distrust, distortion, and animosity. 

The decision to seek arbitration is sometimes made after a conflict has arisen, but much more often the parties have a clause in their contract committing them to arbitration of disputes arising from their business together. Summary jury trial is based on the observation that litigants are often unable to settle their disputes quickly because of the huge gap in their differing expectations of how a jury will view their claims. Aetna Life Insurance, among others, now actively seeks ADR solutions to all its disputes except those involving policyholder claims. For companies with frequent disputes to settle, it may be a good idea to have an ADR expert in the general counsel’s office. ADR is very good at settling disputes between companies with mutually advantageous relationships that both parties want to maintain. 

Conversely, disputes arising from one-shot transactions between parties with no expected future together are harder to resolve out of court. The minitrial works well in cases of factual and legal complexity but doesn’t seem to lend itself well to multiparty disputes. No type of ADR is inherently limited in terms of the dollar size of the disputes it can resolve, but some disputants may feel that big-ticket cases belong in a court, with its procedural protections and rights of appeal. 

Keywords: [“dispute”,”ADR”,”case”]

State v. Mitchell

State v. Mitchell, 170 Mo. 633, 71 S.W. 175, is a precedent-setting decision of the Supreme Court of Missouri which is part of the body of case law involving the prosecution of failed attempts to commit a crime. In United States law, cases involving failed criminal attempts can bring up interesting legal issues of whether the crime was unsuccessful due to factual impossibility or to legal impossibility. In the United States, 37 states have ruled out mistake of fact as a defense to charges of attempt. In United States v. 

Thomas, 13 U.S.C.M.A. 278, the United States Court of Military Appeals held that men who believed they were raping a drunken, unconscious woman were guilty of attempted rape, even though the woman was actually dead at the time the sexual intercourse took place. An act that is considered legally impossible to commit is traditionally considered a valid defense for a person prosecuted for a criminal attempt. An example of a legally failed attempt is a person who shoots a tree stump; that person can not be prosecuted for attempted murder as there is no manifest intent to kill by shooting a stump. The underlying rationale is that attempting to do what is not a crime is not attempting to commit a crime. At trial, the defendant was found guilty of attempted murder. 

The court held that a person who shoots into the bed of another person on purpose, believing that person to be in the bed, is guilty of attempted murder. This case is part of a body of law developed in the United States on the issue of how to handle attempt cases. A case similar to this one is State v. Moretti 52 N.M. 182, 244 A.2d 499, in which the defendant agreed to perform a abortion upon a female undercover officer. With few exceptions, all cases in which an attempt to commit a felony was impossible to carry out because the defendant was mistaken in fact have been categorized as factually impossible and the conviction was upheld on appeal. 

Keywords: [“attempt”,”defendant”,”defense”]

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