Law Fish News for 01-31-2018

CBS Is Said to Fear Unusual Legal Challenge in ’60 Minutes’ Case

At the heart of CBS’s decision to cancel a “60 Minutes” interview with a tobacco company executive last weekend was the network’s fear that it would be sued under a legal theory that had never before been used against a news organization, legal experts said yesterday. An old principle of common law, tortious interference typically occurs when a company or an individual offers another company or individual some inducement to break a contract with a third company or individual. Most such lawsuits stem from cases in which a company executive has broken a contract to jump to another company for more money, law professors said. Sometimes the principle is used when a former employee goes to a new company and breaks a promise not to divulge his former employer’s trade secrets. The theory was successfully employed in the mid-1980’s, after Texaco broke up a deal between the Pennzoil Company and Getty Oil. So far, experts say they know of no case in which the theory has been used to threaten a news organization trying to interview someone who had signed a confidentiality agreement with a former employer. These are the crucial points in the case: to prove tortious interference, one has to convince a jury not only that there was a contract, but also that the interloper knew about the contract and used improper inducements to get the person under contract to break the agreement. First Amendment experts, law professors and tort lawyers were divided yesterday on whether CBS had made the right call. While most agreed that the tobacco company might have theoretical grounds for such a lawsuit, they questioned what damages the company could prove it had suffered if the interview had aired. William Bennett Turner, a First Amendment lawyer who teaches at the University of California at Berkeley, said the idea that the tobacco company could win such a suit was far from fanciful, especially because the offer to pay for the source’s legal defense could be seen as an inducement. “If you are allowed to publish what a legislature says you can’t have, I don’t see why the tobacco company’s interest is more important than the Government’s,” said Charles S. Sims, a First Amendment lawyer in New York. One problem for CBS is that there are few guideposts in the current law to steer them, said Henry R. Kaufman, director of the Libel Defense Resource Center. “There is very little case law out there,” he said, adding, “It hasn’t been answered whether it would be an adequate defense to say that our purpose was to gather newsworthy information.” A professor of law at Georgetown University, said any judge who looked at a lawsuit like the one CBS feared would have given heavy weight to the constitutional protections for the press. Some First Amendment lawyers said CBS’s decision was surprising, because the network had many defenses and it would be difficult for a company to win damages because of negative publicity about tobacco.

Keywords: [“company”,”contract”,”law”]

What Makes the Stanford Rape Case So Unusual

Despite widespread efforts to understand sexual assault, there’s no official clearinghouse that attempts to track its prevalence. It’s impossible to know how many sexual assaults go unreported. The 23-year-old victim in a sexual assault case that has touched off a national uproar did speak out. The victim’s statement to Brock Turner, the former Stanford student convicted of sexually assaulting her, has been viewed online millions of times since last week. The case, which resulted in a six-month jail sentence and probation for Turner, has touched off furor among those who say the punishment is too light, and sparked vigorous debate about the intersection of sexual assault, privilege, and justice. In March, Turner was convicted of three felony counts: sexually penetrating an unconscious person with a foreign object, sexually penetrating an intoxicated person with a foreign object, and assault with an intent to commit rape. If it’s rare for someone to report a sexual assault in the first place, it’s even more unusual for that report to result in a conviction. In the vast majority of sexual assaults the perpetrators never serve time in prison-97 percent of cases, an analysis of Justice Department data by the anti-sexual violence advocacy group RAINN concludes. Another unusual component of the case at Stanford: There were eyewitnesses. Even in instances when victims agree to go through a SART exam, the medical exam that’s conducted after an alleged sexual assault, it doesn’t always yield usable information. “He was intoxicated, and he was a really high-achieving man. Well, that describes every rape or sexual assault at Stanford. If that’s ‘unusual,’ what it would mean is that we could never prosecute a sexual assault on Stanford campus and expect to get a sentence. That’s why I’ve called this a dangerous precedent.” Stanford students are already skeptical that their institution takes sexual assaults seriously. In a university survey last year, fewer than half of undergraduate men at Stanford said they believed it was “Very likely” the school would hold accountable someone found responsible for sexual assault. In the debate over campus sexual assault in recent years, many people have advocated for reducing university involvement and automatically enlisting the help of law enforcement from the moment a crime is reported. “But there’s a nerve that’s being pushed. Here we’ve got proof, but we’re being told, ‘You know what, it doesn’t matter.’ Certain people who participate in our system of justice don’t understand sexual violence. They don’t understand violence against women, and they aren’t able to appropriately interpret the law in a way that protects women. The reason this case has really resonated for people is she did everything right. She was supposed to get justice. And she didn’t.”

Keywords: [“sexual”,”assault”,”Turner”]

Law Fish News for 01-30-2018

Cruel and Unusual Punishment: The Shame of Three Strikes Laws

California’s Three Strikes law has its origins in a terrible event from October 1993, when, in a case that outraged the entire country, a violent felon named Richard Allen Davis kidnapped and murdered an adolescent girl named Polly Klaas. Californians were determined to never again let a repeat offender get the chance to commit such a brutal crime, and so a year later, with the Klaas case still fresh in public memory, the state’s citizens passed Proposition 184 – the Three Strikes law – with an overwhelming 72 percent of the vote. The master triangulator himself, Bill Clinton, stumped for a national Three Strikes law in his 1994 State of the Union address. Once California’s Three Strikes law went into effect at midnight on March 8th, 1994, it would take just nine hours for it to claim its first hapless victim, a homeless schizophrenic named Lester Wallace with two nonviolent burglaries on his sheet, who attempted to steal a car radio near the University of Southern California campus. “He’s a guy who’s literally dying,” says Michael Romano, director of Stanford’s Three Strikes program and a key figure in the effort to reform the law, “And he’s still inside.” Three Strikes turned out to be not only an abject failure but also a terrible embarrassment to the state of California. As the years passed and word of great masses of nonviolent inmates serving insanely disproportionate terms began to spread in the legal community, it became clear that any attempt to repair the damage done by Three Strikes would be a painstaking, ungainly process at best. The first break in the struggle against the law came in 2000, when Los Angeles County District Attorney Gil Garcetti, a hardcore Three Strikes advocate, lost a re-election bid to his former deputy, Steve Cooley, who campaigned against Garcetti’s embrace of the Three Strikes law. Romano eventually left his clerking job and returned to Stanford Law, with the idea of doing something about Three Strikes. “It’s a lot harder to say, ‘Well, wait a minute – do you mean three strikes, or do you mean three serious strikes? And what do you mean by”serious”?'”. Mills, Romano and Stanford decided to put together a Three Strikes program as part of the university’s clinical curriculum, the idea being that the school would represent inmates serving Three Strikes sentences and try to reverse or at least scale some of them back. Ultimately, the DA agreed that if the Stanford group challenged some of the more absurd Three Strikes cases, his office, on a select basis, might not oppose their efforts. From the very beginning, there had always been significant opposition – from members of both parties – to the dumber aspects of the Three Strikes law. Ten years later, when a group called Families to Amend California’s Three Strikes, or FACTS, tried to reform the law, it was the same story. One of the interesting results of the polling Mills commissioned last summer was that California voters were surprisingly unmoved by the issue of the cost of incarcerating Three Strikes inmates.

Keywords: [“strike”,”year”,”Three”]

The Strange Case of Everet vs. Williams: When Two Highwaymen Took Each Other To Court

In 2008, Discovery Communications launched Investigation Discovery, the 24/7 true crime network that has had fans glued to their television sets ever since. IT BEGAN AS AN ANCIENT HISTORY NETWORK. Investigation Discovery began its life in 1996 as Discovery Civilization, a network dedicated to showcasing content related to ancient history. In 2002, The New York Times purchased a 50 percent stake in the network with an eye toward shifting its focus to current events; in 2003, it relaunched as Times Discovery. In 2006, The New York Times sold its stake in the network, which is when Discovery Communications saw an opportunity to turn it into a 24/7 true crime network-and Investigation Discovery, as we know it today, was born. THERE WAS AN ECONOMIC BENEFIT TO CREATING A CRIME CHANNEL, TOO. While there was data that told Schleiff and his fellow executives that there was a thirst for an all-crime network, the fact that it would be cost-effective didn’t hurt in swaying the powers that be. WOMEN LOVE IT. Investigation Discovery continually ranks among the top five cable networks for female viewers, and is particularly popular among the coveted 24- to 54-year-old audience. MANY OF THE PERPETRATORS ARE FEMALE, TOO. In addition to being the primary audience, the network produces several series that focus on female perpetrators with titles like Deadly Women, Wives With Knives, and How To Kill Your Husband. THERE ARE SOME CRIMES THAT ARE OFF-LIMITS. Though the network deals in death and crime, there are some topics that ID executives do their best to stay away from-number one being crimes that involve children. ONE REENACTMENT SCENE WAS A LITTLE TOO REAL. Peter Muggleworth, who has done some reenactment acting for the network, was filming a scene for Nightmare Next Door, in which he played a kidnapper/murderer, when things got a little too real. FOR SOME VIEWERS, IT’S CATHARTIC. While the idea of watching violent acts play out on television may not be the preferred genre of entertainment for all audiences, some ID fans believe that the network can be a cathartic experience. IT’S THERAPEUTIC FOR SOME OF THE NETWORK’S STARS AS WELL. That catharsis that viewers get goes the other way, too. JOE KENDA IS THE NETWORK’S UNDISPUTED STAR. Though the network features dozens of original series, its highest-rated show is Homicide Hunter: Joe Kenda. Lady Gaga, Serena Williams, and Nicki Minaj are just a few of the network’s famous fans. KENDA BELIEVES ID’S POPULARITY IS BASED IN STRONG STORYTELLING. While Kenda admits that, “The twists and turns, the unknown factor, gives people an opportunity to be an armchair detective in some way,” he believes that the network’s popularity can be attributed to something much more basic. THE NETWORK HAS GONE GLOBAL. Based on ID’s popularity in America, the network began expanding into global markets just a year after its launch.

Keywords: [“network”,”Discovery”,”crime”]

Law Fish News for 01-29-2018

SC’s Unusual Direction In Hadiya Case Triggers Concerns Of Judicial Overreach- An Analysis Of SC Order

The SC bench of the Chief Justice J.S.Khehar and D.Y.Chandrachud, directed the National Investigation Agency to investigate the case, under the guidance of Justice R.V.Raveendran, retired Judge of the Court. The proposal to seek the services of Justice Raveendran arose when senior counsel, Kapil Sibal, representing Jahan, expressed doubts about the fairness of investigation, if it is entrusted to the NIA. There was agreement on Justice Raveendran, when the bench’s initial proposal of Justice K.S.Radhakrishnan, also a former Supreme Court Judge was mooted by the bench, because he knew Malayalam, and the documents of the case are in Malayalam. The bench also mooted the name of Justice K.T. Thomas, another former Judge of the Supreme Court from Kerala. The bench made it clear to the parties, that before hearing the matter finally on merits, it would require the presence of Akhila, and would speak to her in camera before taking a final decision. The bench then posted the matter for further consideration after the final investigation report is placed on the record of this case. That the bench would meet Hadiya, before taking a final decision, would suggest that the investigation report is not binding on the bench, if Hadiya is likely to contradict it during her interaction with the bench. If the bench is not likely to believe Hadiya, then there is no point in meeting her at the last stage; if she prevails on the bench, then it would be construed as a reflection on the so-called fair investigation, to be conducted by the NIA, under the supervision of the former Judge. Pleas by Kapil Sibal, and Indira Jaising, both counsel for Jahan that Hadiya is not a child, and she is now under custody, and therefore, the bench should immediately talk to her to ascertain facts for itself, did not convince the bench. Sibal repeatedly told the bench that it was prejudging, and assuming that Akhila was forcibly converted – a claim, which the bench denied. The CJI’s reference to the blue whale game, and how it has been influencing young minds showed that the bench believed that she could have been similarly influenced irrationally by her mentors. The bench did not consider the merits of Jahan’s plea that Hadiya is in custody, and therefore, cannot defend herself during the investigation. When the bench pointed to the conclusion of the two Judges of the Kerala High Court, annulling her marriage with Jahan, Sibal told the bench two other judges of the High Court said the opposite earlier. “Why give credence to one, and not the other?”, he asked the bench, which had no answer to it. Because of differences in bench, two Judges can come to different conclusions, Sibal reasoned. Chief Justice Khehar’s observation that the bench wants all the inputs before talking to Akhila, and that is why it has directed an independent investigation into the episode, could mean that the bench was subjecting itself to various biases and prejudices, rather than talk to her with an open mind, to ascertain her free will.

Keywords: [“bench”,”Judge”,”Justice”]

The Computer Heist: An Unusual Commercial Mediation

This mediation involved an insurance claim filed by a manufacturer seeking $31 million from its insurer because of the theft of computers from the company’s warehouse. The insurance company refused to pay the manufacturer’s claim, asserting that the units were outmoded – they were no longer being marketed by the manufacturer, and in fact were slated for destruction. The insurer responded to the manufacturer’s claim with an offer of $350,000, arguing that the term “Losses” does not encompass the market effect created by stolen goods, but that the “Nuisance value” of the claim justified a $350,000 offer. Although the manufacturer’s management team found the insurer’s offer insulting, the company was in dire straits financially and needed cash. The insurer cited the opinion of an expert who contended that the market effect of the thefts could not be accurately predicted or modeled because the product was so new that there were no stable benchmarks from which to measure demand, and the entry of multiple new manufacturers of computers each year, with a wide variety of features and functions, made it difficult to measure the effect of increased supply of any one variety of computer equipment. The manufacturer did not respond to the insurer’s offer, and negotiations stalled. One year after the theft and the initial negotiations, the manufacturer filed suit against the insurer, and outside counsel for the two companies explored the idea of mediation. Prior to the mediation session, counsel for each side submitted to me voluminous, well-argued briefs, citing cases that interpreted language similar to the language of the manufacturer’s policy. The insurer’s representatives were outraged, criticized me for wasting their time, and excoriated the manufacturer’s representatives for duping them into coming to a mediation with no intention to bargain in good faith. After several rounds of back-and-forth bargaining, the parties found that they were at an impasse, with the manufacturer demanding $4.6 million and the insurer offering $2.75 million. In response to the case evaluation, the manufacturer dropped its demand to $4.48 million, and the insurer raised its offer to $4 million, but added to the settlement terms the release of another claim by the manufacturer from a different case. The manufacturer responded by offering to settle for $4.5 million and a release of all claims. The manufacturer accepted this advice, and the insurer responded with a $4.125 million offer that the manufacturer accepted, settling the case. The manufacturer did that in this case, but the insurer continued with the negotiation – after a good deal of persuasion – because of the one-year hiatus in the negotiations and because the manufacturer’s financial crisis had passed. In my two-hour caucus session with the insurer, after the manufacturer raised its demand to $6 million, the insurer’s representatives were hurling the saltiest invectives about the manufacturer’s motives and integrity, and accusing me of naivete and worse.

Keywords: [“manufacturer”,”million”,”insurer”]

Law Fish News for 01-28-2018

Cruel and Unusual Punishment under the Eighth Amendment

Introduction What exactly is a “Cruel and unusual punishment” within the meaning of the Eighth Amendment? Did the framers intend only to ban punishments- such as “Drawing and quartering” a prisoner, or having him boiled in oil or burned at the stake-that were recognized as cruel at the time of the amendment’s adoption? Or did they expect that the list of prohibited punishments would change over time as society’s “Sense of decency” evolved? One clue to the expectations of the framers comes from the debates of the First Congress that proposed the Eighth Amendment. The four dissenters contended that the sequence of events was relevant, and that no one would doubt but that a punishment that consisted of two jolts of electricity weeks apart would be cruel. By a 5 to 4 vote the Court found that the punishment was not a violation of the Eighth Amendment because, it said, the framers were concerned solely with punishments in the criminal justice context and would not have intended the amendment’s provisions to apply to discipline in the public schools. Does the Eighth Amendment contain a requirement that punishments be somewhat proportional to crimes? Would it be unconstitutional to give a life sentence for double-parking? What about a life sentence for possession of cocaine? That letter question was the issue presented in Harmelin v Michigan. Two justices argued that the Eighth Amendment did not address the proportionality of punishments at all. A key concurring opinion signed by three justices argued that grossly disproportionate punishments did violate the Eighth Amendment, but offered a test that would only rarely allow courts to reach such conclusions. The Court considered whether the beating by prison guards of a handcuffed inmate at Louisiana’s Angola prison violated the inmate’s Eighth Amendment rights. Voting 7 to 2, the Court found a violation of the cruel and unusual punishment clause even though the inmate suffered no permanent injuries or injuries that required hospitalization. The Court rejected the lower court’s argument that only beatings that caused “Significant injuries” rose to the level of Eighth Amendment violations. The Court considered whether it was cruel and unusual punishment to execute a prisoner for a crime he committed when he was a minor. In Graham v. Florida, the Supreme Court, by a vote of 5 to 4, ruled that the Eighth Amendment does not permit sentences of life without possibility of parole for minors who commit nonhomicide crimes. The Eighth Amendment: Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted. The majority in Ingraham effectively inserts the word “Criminal” before the word “Punishment” in the Eighth Amendment. What should be the test for determining when prison conditions constitute cruel and unusual punishments? Is a “Deliberate indifference” standard appropriate? Is it unconstitutional to confine an inmate to a four-by-six foot cell? To double-cell an inmate with a chain smoker? To keep cells at 55 degrees? 5. The Court said his beating constituted cruel and unusual punishment.

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

In rare step, Illinois Supreme Court removes judge from two civil cases

In what legal observers describe as a highly unusual move, the Illinois Supreme Court has for a second time in two years removed the same Cook County judge from a pending wrongful death case in civil court. Last year, the state’s high court took the unusual step of removing Judge Daniel Lynch, a former Cook County prosecutor, from a byzantine case involving a traffic death that ended with Lynch sentencing the deceased victim’s uncle to six years in prison for contempt of court. In both cases, according to court records, Lynch indicated he had uncovered wrongdoing or a conspiracy among the litigants. “The ability of the Respondent Judge to discern unfounded suspicion from provable fact has collapsed,” attorney Lance Northcutt wrote in his Supreme Court petition on the cancer case. The Supreme Court did not give a reason in its rulings for the decisions to remove Lynch, who is assigned to the Law Division, a highly sought-after posting in Cook County Circuit Court. Occasionally, a higher court will on appeal reverse a judge’s ruling and order the case randomly reassigned, but it’s almost unheard of for the state’s highest court to police pending civil cases this way, longtime legal observers said. Judicial Inquiry Board proceedings are secret and a state Supreme Court spokesman declined to say if the court had referred the matter to the agency. Soon after the plaintiff’s attorney agreed to drop JCI and the case was settled, according to court records, Lynch questioned whether there had been a conspiracy in the case to keep JCI on as a defendant to avoid having the matter removed to federal court. Even though the case had settled, Ford Motor Co., one of the defendants, followed the judge’s line of thought and asked for contempt charges to be brought against JCI for allegedly conspiring with the plaintiff’s attorneys to keep the case out of federal court. As part of what lawyers dubbed a “Vortex of treachery” in the case, the judge also had a law clerk call the plaintiff, Winford’s daughter Roxanne Richards, to tell Richards that her attorneys would no longer be allowed to represent her, the attorneys alleged in a court filing. In the first removal of Lynch last year, the state Supreme Court stopped him from presiding over a lawsuit stemming from the 2007 death of a Chicago woman named Hawa Sissoko, who was hit by a semitruck in Indiana. Attorneys almost never ask the state Supreme Court to step in and remove a judge, viewing it as a last-ditch remedy that risks further alienating the judge hearing their case. Earlier this year, defense attorneys in a 2004 murder case asked the high court to remove Cook County Judge Diane Gordon Cannon, accusing her, among other things, of falsely insisting one of their key witnesses was a fraud. The Supreme Court declined, but Cannon later recused herself after a bizarre hearing at which she denied calling one of the lead defense attorneys “Mr. Underpants.” A court clerk had allegedly shared details of a jury note with the plaintiff’s attorney as jurors deliberated and the two sides were discussing settling the case.

Keywords: [“Court”,”case”,”Lynch”]

Law Fish News for 01-27-2018

Viral phylogeny in court: the unusual case of the Valencian anesthetist

During the past 20 years molecular phylogenetics has become increasingly popular as a tool for the forensic investigation of viral transmission, where it is used to infer the ancestral relationships of infections from sampled viral genome sequences. Like HIV, hepatitis C virus is a globally prevalent, blood-borne and rapidly evolving virus, yet it is unusual for its transmission to be evaluated scientifically in a criminal court. One of the difficulties in analyzing the transmission of very fast-evolving viruses such as HIV and HCV is that the genomes of strains sampled from individuals who are known without doubt to have infected each other are rarely identical. They are likely to be genetically more similar than those taken from epidemiologically unlinked individuals; hence, viral phylogenies can help to evaluate proposed transmission scenarios. A few years later HIV transmission through rape was investigated in Sweden using phylogenetic methods and the analysis, together with other evidence, condemned the accused in court. As is common in criminal cases involving viral transmission, the phylogenetic analysis presented by González-Candelas et al. The branching events in a viral phylogeny do not always correspond to the transmission events among sampled infections. In short, the existence alone of genetic similarity or phylogenetic linkage among viruses cannot show beyond doubt that direct transmission occurred between two individuals. Further, the complexity and size of the Valencian case increases the chance that complainants may belong to the same network of transmission without having been infected directly by the defendant, and it is conceivable that some putative recipients had risk factors for HCV infection other than surgery with the accused anesthetist. All of the above highlights the importance of evidence other than phylogenetic analysis when building a case for direct transmission – for example, evidence gained through medical records and interviews. Phylogenetic evidence regarding transmission can often be improved by sequencing a large number of virus genomes from each infected individual. Demonstrating direction of transmission is not identical to demonstrating direct transmission from one to another. An additional problem that may apply in populations at high risk of HCV infection is that individuals may clear infection only to be re-infected shortly thereafter with a closely related viral strain, which may preclude the use of paraphyletic clustering to support or exclude a particular direction of transmission. Although the analysis of the Valencian HCV outbreak illustrates some of the challenges inherent in the phylogenetic analysis of HCV transmission in criminal investigations, many aspects of the case are atypical, including the very large number of possible recipients of transmission, the length of time over which the infections occurred, and the lack of recipient-donor paraphyly in some instances. Highly parallel ‘deep’ sequencing approaches to within-host viral genetic diversity have become more common; whether such sequencing technologies might be applied successfully to forensic viral transmission cases remains to be seen.

Keywords: [“transmission”,”viral”,”phylogenetic”]

Bangladesh Editor Faces 79 Court Cases After an Unusual Confession

Asif Nazrul, a law professor at the University of Dhaka, said the legal cases would further weaken Bangladesh’s civil society. “These cases are a strong signal to not just Mahfuz Anam but to all media that if you go beyond the limits that have been set, then you too can be prosecuted for sedition,” he said. Pressure on the two newspapers began to build last fall. After Prothom Alo and The Daily Star published a report in August on the killing of five men by army troops in the Chittagong Hill Tracts, a former conflict area where the military has a large presence, a series of major private advertisers abruptly withdrew from the two newspapers, and advertising revenues for both publications dropped steeply. Tor Odland, a vice president with the Norwegian company Telenor Group, said in a statement at the time that the Bangladesh telecommunications company Grameenphone, which is part of Telenor, “Has, along with several other large corporations, received an instruction from the authorities to stop advertisements in two leading newspapers in Bangladesh.” Press officers for the government denied giving any such instruction. In response to a question on a televised talk show, Mr. Anam expressed regret for a decision he made in 2007, when the country was led by a military-backed caretaker government, to publish uncorroborated allegations provided to the newspaper by military intelligence officials. Her rival, the Bangladesh Nationalist Party leader Khaleda Zia, was also detained. Sajeeb Wazed, Ms. Hasina’s son, reacted immediately, writing on Facebook that he wanted “Mahfuz Anam behind bars and on trial for treason.” The defamation cases began to be filed after Mr. Wazed’s post, sometimes at a rate of five or more per day. Hasanul Haq Inu, Bangladesh’s information minister, said the government had not orchestrated the cases. “The Daily Star continues to publish, and has written pieces critical of the government since the cases were filed. The government has no problem with that. There is freedom of the press here.” Ms. Hasina has demanded that he resign from the newspaper and stand trial. Mr. Anam described himself as “Flabbergasted” at the cases filed against him, noting that the material published in 2007 was “National news, covered by everybody.” Even today, he said in an interview, journalists are under pressure to uncritically publish material provided by military officials, among them accounts of civilians killed in confrontations with police or military officials. Mostafizur Rahman, an assistant public prosecutor who filed the first sedition case against Mr. Anam, said the newspaper’s reporting was an attempt to “Try and wipe out that family, in order to put this country under the thumb of an evil force by printing falsehoods.” An article on Monday about a barrage of litigation against a Bangladeshi newspaper publisher at a time when criticism of the government has become risky referred incorrectly to the political leader Sheikh Hasina, whose 2007 arrest on corruption allegations was covered by the newspaper.

Keywords: [“Anam”,”government”,”newspaper”]

Law Fish News for 01-26-2018

In our sixth year analyzing the Supreme Court’s amicus curiae docket for The National Law Journal, we found that amici filed more than 860 briefs, participated in more than 90 percent of merits cases, and, more often than not, seemed to capture the justices’ attention. MOUNTAINS OF BRIEFS In the 2015-16 term, amici curiae filed 863 briefs across all argued cases. In 2011-12, the national law journal amici filed 136 briefs in the consolidated challenges to the Affordable Care Act, breaking the previous record of 107 briefs in the 2003 affirmative action cases. These limitations are necessary because the justices obviously can only cite amicus briefs when amici participated in the case and the court issues a substantive decision on the merits. The justices cited amicus briefs in 54 percent of cases with signed opinions, which is in the middle range of the prior five terms where the justices cited amicus briefs in 46 to 63 percent of cases. The court’s citation rate to nongovernment amicus briefs, called “Green briefs” for the color of their covers, was on the high end from the past five terms. In the 2015-16 term, the justices cited 45 percent of the 29 OSG amicus briefs filed in cases with signed opinions, on the low end of the past five terms, which ranged from 44 to 81 percent. Amicus briefs Signed decisions 62 620 29 37 4-4 affirmance 4 94 3 8 Per curiam vacatur 1 69 0 2 Dismissed 1 0 0 1 Totals 68 783 32 48 ­ercentage vastly outpaces all othp er amici when it comes to citation rate, and the OSG is in no danger of surrendering its title as “King of the citation-­frequency hill.” Joseph ­Kearney & Thomas ­Merrill, “The Influence of Amicus Curiae Briefs on the Supreme Court,” 148 U. Pa. L. Rev. 743, 760. For one, several of the justices have publicly stated that they do not review all of the amicus briefs, but instead, have their law clerks plumb the mountain of briefs to pluck out those worth reading. The justices might find an amicus brief persuasive, yet for any number of reasons might never cite the brief in an opinion. Several justices referenced multiple amicus briefs during oral argument in Zubik, but the court issued an unsigned per curiam opinion that did not cite any briefs. During oral argument in McDonnell v. United States, a high-profile public corruption case against former Virginia Gov. Bob McDonnell, Chief Justice John G. Roberts described an amicus brief by former White House counsel as “Extraordinary.” Marcia Coyle, “Roberts Singles Out Former White House Counsel for ‘Extraordinary’ Brief,” Nat. More often the justices in 2015-16 cited amicus briefs for “Legislative facts”-“Generalized facts about the world that are not limited to any specific case.” Allison Orr Larsen, “The Trouble With Amicus Facts,” 100 Va. L. Rev. 1757, 1759, 1784. THE JUSTICES’ CITATION RATES Over the prior five terms, the justices varied substantially in how often they cited amicus briefs in their opinions. The past six terms suggest that what drives amicus citation is not the number of briefs or personal predilections about the value of amici, but whether the briefs were helpful to a justice in a particular case.

Keywords: [“brief”,”amicus”,”Justice”]

A Black Woman Is Arguing a Big Supreme Court Case Today. That Shouldn’t Be Unusual. But It Is. – Mother Jones

When Christina Swarns steps up to the podium on Wednesday for oral arguments in Buck v. Davis, her appearance will represent a rare event: an African-American woman arguing a Supreme Court case. Even as the case raises troubling questions about fairness in the courts, Swarns’ appearance as one of the very few black women ever to argue a Supreme Court case is another reminder of why such problems may persist. The lawyers who make up Supreme Court bar are largely white and male-less diverse, even, than the court they practice in front of. The NAACP Legal Defense Fund’s former counsel, Constance Baker Motley, argued 10 Supreme Court cases while at LDF between 1961 and 1964, winning nine of them, including the case that allowed James Meredith to enter the University of Mississippi as its first black student. There was Elaine Jones, another longtime LDF litigation director who argued before the court and is best known as counsel of record in Furman v. Georgia, the case that briefly abolished the death penalty in 1972.*. But more recently, black women lawyers have been in short supply at the court. After canvassing lawyers who work in Supreme Court advocacy, legal organizations, and the Supreme Court itself, Mother Jones identified fewer than half a dozen black women who’ve argued cases there since 1999. The last time anyone from LDF can remember a black woman arguing before the high court was three years ago, when Shanta Driver argued to preserve affirmative action in admissions at public universities in Schuette v. Coalition to Defend Affirmative Action. For a few years, Leondra Kruger helped diversify the Supreme Court bar when she was working for the US Solicitor General’s office, where she argued 12 Supreme Court cases between 2007 and 2013. California Governor Jerry Brown appointed her to the California Supreme Court, and no black woman seems to have argued a case before the high court since. Why are there so few women of color appearing before the court? To start with, there aren’t very many women period arguing before the court. The business is cutthroat: More than 500 DC attorneys claim to have a Supreme Court practice and the court only takes about 70 cases a year, meaning these lawyers are all fighting over a very small book of business. When a lawyer represents a client who makes it to the Supreme Court, Williams says, “That’s when people kind of swoop in on you. They want to take your case.” Those attorneys, usually men from elite law firms, pressure less experienced lawyers to let a “Seasoned Supreme Court litigator” take important cases for the best interest of the client, Williams explains. The last court term to see a black women argue before the court was also notable for having only one black man argue a case, for a mere 11 minutes. Most lawyers of color coming before the court tend to work for the government, such as Lisa Freeland, the federal public defender for the western district of Pennsylvania, an African-American woman who argued a Supreme Court case in 2010. This makes Swarns’ Supreme Court debut as both a minority and non-governmental lawyer even more unusual and perhaps more fitting given the case she’s arguing.

Keywords: [“Court”,”case”,”Supreme”]

Law Fish News for 01-26-2018

Sexual Harassment Makes For Some Mighty Strange Cases

I’ve handled and read enough sexual harassment cases to write a book – or more like a tome. As I’ve written before, sexual harassment has less to do with sex than with power disparity and misogyny. Over the long weekend I was thinking about some of the weirdest and most problematic cases of sexual harassment that I’ve encountered and thought that a good post could be written about them. This one has nothing to do with harassment but everything to do with sex in the workplace – or other places – and workers’ comp. It seems that she met a local male friend, and, as the Australian Federal Court tried to delicately put it: “After dining together that evening they went to her motel room where they had sex. The respondent was injured whilst engaging in sexual intercourse when a glass light fitting above the bed was pulled from its mount and fell on her, causing injuries to her nose and mouth.” Bizarre enough, but the real bizarrity is that the court held the employer liable for her injuries under the workers comp statute, because her injuries arose out of or in the course of her employment. “Here the temporal relationship between the injuries and her employment is that they were suffered by her while she was at a particular place where her employer induced or encouraged her to be during an interval or interlude between an overall period or episode of work.” A federal appeals court had a sexual harassment case a few years ago where the plaintiff was a female employee who worked part of the time in a trailer at a construction site. A male employee told her that “a large-breasted woman, whom he called ‘Double D,'” would attend a particular company event, and he asked her “Whether the size of the woman’s breasts intimidated her.” He later spoke to her about tampons and “Asked whether women ‘got off’ when they used a particular kind.” He also told her that “Women were lucky because [they] got to have multiple orgasms.” What did the court say about this outrageous harassing behavior? “Other than his references to the French maid’s costume, [he] reportedly made offensive sexual remarks to [her] on only about four occasions.” Only four? Accordingly, the court held that there was no actionable sexual harassment “Because the evidence will not support a finding that the offensive sexual conduct was so severe or pervasive that it altered the conditions of her employment and created a work environment that a reasonable person would consider hostile or abusive.” A while ago I came across an article in the Los Angeles Times by Carol Williams, in which she reported on Saudi Arabia, our new BFF. Seems that a survey by the King Abdul Aziz Centre for National Dialogue found that 80% of Saudis “Blame the scourge of sexual harassment plaguing the country on the ‘deliberate flirtatious behaviour’ of women.” In an article in SDE, Lydia Limbe wrote that “There exists a thin line between what some men consider traditional cues of seduction and sexual harassment.” Another woman told of a male co-worker who wanted to engage in “Gland to gland” combat. Back in 2013, Meera Jagannathan, a contributing writer at upstate New York’s Post-Standard, reported on a settlement of a sexual harassment case arising out of a funeral home.

Keywords: [“sexual”,”harassment”,”work”]

Definition, Examples, Cases, Processes

To help ensure the accused returns for trial after his release, the system of bail was set up, in which the accused may post a specified amount of money or other valuable item which will be returned to him only after he shows up for all of his scheduled court hearings and the matter is concluded. The amount of bail required is set by the court, which considers the severity of the offense, and whether there are strong indicators that the accused might flee the jurisdiction to avoid trial. The Supreme Court has interpreted the 8th Amendment to mean that bail can be denied if the charges are serious enough, or if it is reasonably believed that releasing the accused may pose a danger to the community. Because fines are imposed after a defendant has been convicted, and have nothing to do with depriving him of his liberty prior to trial, U.S. courts have greater discretion in imposing fines for criminal acts. There are still checks and balances built into the system where fines are concerned, as, if a lower court imposes a fine determined by a higher court to be an abuse of discretion, the fine may be overturned by a higher court. The court further held that the court cannot interfere with state legislation when it comes to fixing fine amounts, unless they are so excessive as to effectively amount to deprivation of property without due process. In 1998, the U.S. Supreme Court heard the matter of United States v. Bajakajian, in which Mr. Bajakajian took more than $10,000 with him as he left the country, but failed to make the appropriate report. While the Amendment does not specifically define punishments to be considered cruel and unusual, case law throughout U.S. history has deemed such punishments as castration, burning alive, drawing and quartering, public dissection, and any punishment designed to cause a lingering death, to be beyond the concept of public decency, and therefore cruel and unusual. The Supreme Court has also held that any punishment handed down should be proportionate to the nature of the crime committed. Finally, the Supreme Court has ruled, in 1988, that the death penalty amounts to cruel and unusual punishment if applied to anyone who was under the age of 18 at the time the crime was committed. The Court ruled that it would be cruel and unusual punishment to execute any mentally handicapped individual. As the Supreme Court has ruled that the imposition of the death penalty is not a violation of the Constitution, or of the Eighth Amendment, the issue of whether to utilize the punishment is left to each individual state. Atkins’ attorneys appealed the sentence to the Virginia Supreme Court, which upheld the lower court’s decision. The Court agreed, stating that a trend had begun with certain states banning use of the death penalty for the mentally retarded, which shows “Evolving standards of decency that mark the progress of a maturing society.” Justice Stevens went on to say that clearly “The practice has become truly unusual.” As such, the imposition of the death penalty on anyone with a mental disability is unconstitutional. Related Legal Terms and Issues Defendant – A party against whom a lawsuit has been filed in civil court, or who has been accused of, or charged with, a crime or offense.

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

Law Fish News for 01-24-2018

U.S. Supreme Court Cases

a. Establishes the proportionality principle under 8th. b. “What constitutes a cruel and unusual punishment has not been exactly decided. It has been said that ordinarily the terms imply something inhuman and barbarous, torture and the like. McDonald v. Commonwealth, 173 Massachusetts, 322. The court in that case conceded the possibility”that imprisonment in the State prison for a long term of years might be so disproportionate to the offense as to constitute a cruel and unusual punishment. a. State prisoners can bring suit against prison officials under 42 U.S.C. 1983. a. Due process challenge by prisoners transfered to less desirable living conditions in a max-security prison without having received a written statement of evidence. b. The Court found that because the inmates had no property interest or right to stay in the first prison, the transfer to a harsher facility did not violate due process. c. Once a criminal defendant is convicted, there ceases to exist a liberty interest to the extent that a state “May confine him and subject him to the rules of its prison system so long as the conditions of confinement do not otherwise violate the Constitution.” d. Due Process does not protect prisoners from being transferred between prisons, despite the conditions being far worse. b. “As long as the conditions or degree of confinement to which the prisoner is subjected is within the sentence imposed upon him and is not otherwise violative of the Constitution, the Due Process Clause does not in itself subject an inmate’s treatment by prison authorities to judicial oversight.” It’s worth looking into Powell’s notes to see if the overall satisfactory nature of the prison led him to make the statements he does about prisons not needing to be comfortable. b. “Society is not prepared to recognize as legitimate any subjective expectation of privacy that a prisoner might have in his prison cell.” a. In cases alleging cruel and unusual punishment, it is necessary to examine a prison official’s state of mind. Subjective component requires showing that prison officials were deliberately indifferent and knew of and disregarded harm to prisoners. Justice White’s concurrence criticizes the majority for improperly requiring the subjective prong in prison conditions cases. a. Prison conditions may be found to be cruel and unusual when prison officials are deliberately indifferent to prisoner health and safety. a. “The punishment of incarcerated prisoners, on the other hand, serves different aims than those found invalid in Bell and Ingraham. The process does not impose retribution in lieu of a valid conviction, nor does it maintain physical control over free citizens forced by law to subject themselves to state control over the educational mission. It effectuates prison management and prisoner rehabilitative goals.” The Court reasoned that, although Hope’s allegations if true established an Eighth Amendment violation, prison guards could be shielded from liability for their constitutionally impermissible conduct if their actions did not violate clearly established statutory or constitutional rights of which a reasonable person would have known.

Keywords: [“prison”,”prisoner”,”b.”]

The Unusual Case of Ian Paterson and Criminally Harmful Surgery – Journal of Medical Ethics blog

On 28th April 2017 in the case of breast surgeon, Ian Paterson, the jury in Nottingham Crown Court agreed that in carrying out unnecessary and mutilating surgery the defendant had done what no reasonable surgeon would do. Paterson was convicted of seventeen counts of wounding with intent to cause grievous bodily harm and three counts of unlawful wounding against nine women and one man. The “Obscure motives” that compelled Paterson may forever remain a mystery but it is interesting that the charges against him relate only to patients he treated in his private practice. Without greed as a possible motive his actions are baffling, and the prosecution’s case, in alleging that surgery which Paterson argued was performed in the patient’s best interests actually constituted GBH or unlawful wounding, would be more challenging because of the medical context of the allegations. Paterson’s conviction is a landmark case, which might have implications for the prevailing assumption that non-fatal surgical violations are not a criminal matter. The offences of which Paterson has been convicted – which require either intention to cause GBH or, for the lesser section 20 offence, intention or foresight to inflict some harm – are generally not applied to surgery because although the surgeon does technically satisfy the requirements of the lesser offence by intentionally wounding the patient, she is acting in the patient’s interests and not maliciously. Paterson misled his patients by falsely telling them that the surgery was necessary and appropriate. The prosecution’s case was that the inaccurate information that Paterson conveyed in order to gain consent meant that the patients had not given real consent. Thus Paterson’s case necessitated a complex decision by the jury that also drew from civil law principles, notably the Bolam standard: they were asked to decide if the advice Paterson provided to patients was advice that no responsible body of appropriately qualified breast surgeons would give. If it was, did Paterson know this when he misled the victims into consenting to the surgery? The facts pointed towards multiple situations in which Paterson knew very well that his advice was inaccurate and designed to mislead. Consequently, his actions in obtaining false consent and performing the surgery that inflicted wounds and seventeen instances of GBH could not be regarded as legitimate within the medical exception. In Paterson’s case, there was a systematic failure to prevent him from harming patients over many years preceding the criminal investigations. Sir Ian Kennedy’s Review of the Heart of England NHS Trust’s response to concerns about Paterson’s surgical practice revealed that a hierarchical and oppressive culture made it difficult for colleagues to raise concerns about senior colleagues. The managerial approach prioritised meeting targets over patient safety and patient-centred consent within an environment that misused principles of confidentiality to perpetuate secrecy, concealing vital information that should have been scrutinised and then used to prevent Paterson’s misdeeds. Although Paterson’s crimes are indeed unusual, hospital environments in which harmful medical practices are permitted to flourish in spite of concerns raised are sadly not so unusual, which may be the most important issue raised by this appalling case.

Keywords: [“Paterson”,”patient”,”consent”]

Law Fish News for 01-23-2018

The one weird court case linking Trump, Clinton, and a billionaire pedophile

NEW YORK-A woman who claims in a lawsuit that she was lured into a sex-trafficking ring run by billionaire Jeffrey Epstein contends that the depravity began at a Florida resort now known as the winter White House: Mar-a-Lago. Dershowitz defended Epstein amid an investigation into his involvement with underage girls more than a decade ago, and it was Acosta-then the U.S. attorney overseeing south Florida-who allowed Epstein’s case to be resolved in state court in 2008. Giuffre, formerly Roberts, claims she was 15 and working as a towel girl at Trump’s posh Palm Beach club when she was recruited nearly two decades ago into sexual slavery by socialite Ghislaine Maxwell, then Epstein’s girlfriend. Giuffre asserts in her complaint that Maxwell, the sole defendant in the suit and the daughter of late publishing magnate Robert Maxwell, routinely recruited underaged girls for Epstein and was doing so when she approached the $9-an-hour locker room attendant at Mar-a-Lago in 1999 about giving massages to the wealthy investment banker. A lawyer for Epstein did not return messages seeking comment; he’s repeatedly invoked his 5thAmendment rights in depositions in the Giuffre suit and other cases. Testimony in a prior court case indicated that Trump flew at least once on one of the planes Epstein owned and Trump’s phone numbers were in Epstein’s personal phone directory. Maxwell’s legal team wants to ask the jury pool if they know about suits filed-then dropped or dismissed-alleging that Trump and Epstein raped a teen at Epstein’s Manhattan residence. Trump Organization attorney Alan Garten said Trump had no relationship with Epstein. Over the years, Giuffre has claimed that while traveling with Epstein she saw Clinton on Epstein’s private island and once ate with Vice President Al Gore and his then-wife Tipper. Epstein’s own lawyers once sought to capitalize on his ties to the former president, claiming during plea negotiations a decade ago that the financier “Was part of the original group that conceived the Clinton Global Initiative”-a. In addition, Clinton and Hollywood guests including Kevin Spacey and Chris Tucker toured AIDS projects in Africa in 2002 aboard a 727 jet Epstein owned. Trump’s ties to Epstein have triggered speculation that Cernovich might be gathering information on those who’ve leveled sex-related accusations at Trump or trying to collect information damaging to Trump for his own purposes. POLITICO reported in 2014 that Giuffre had filed court papers accusing several prominent Epstein acquaintances of taking part in her sexual abuse, including Dershowitz and British royal Prince Andrew. “I would like [the] discovery unsealed. My deposition is already unsealed. I have nothing to hide. The other side is trying to hide the truth,” he said in response to a query from POLITICO. The same 2014 court filing also accused Maxwell of a being “a co-conspirator in Epstein’s sexual abuse” and of taking “Numerous sexually explicit pictures of underage girls involved in sexual activities, including” Giuffre. The Giuffre suit isn’t the only one still pending in the aftermath of Epstein’s conviction. Acosta’s handling of the Epstein case came up at his confirmation hearings in March, where Acosta defended the deal, saying it was a “Broadly held” view in his office that ending the federal probe without charges was appropriate if Epstein pled guilty in state court and registered as a sex offender.

Keywords: [“Epstein”,”Trump”,”Giuffre”]

Unusual Settlement Caps Sex-Discrimination Case

Observers laud the fact that the agreement lets Heidi Weissmann and her former employers keep their controversial debate alive Despite a recently announced out-of-court settlement in medical researcher Heidi S. Weissmann’s seven-year-long sex-discrimination case against her former employers, each side still insists that it would have prevailed had the case gone to trial. Weissmann, formerly an attending physician at Montefiore Medical Center and an associate professor of radiology at Yeshiva University’s Albert Einstein College of Medicine in Bronx, N.Y., says she hopes the settlement of her United States District Court suit against the two institutions will “Let women know they can have the courage of their convictions and be successful in the end.” According to the settlement agreement, $35,000 of the amount constitutes back pay, $540,000 compensates Weissmann for pain and suffering, and $325,000 represents legal fees and expenses. An attorney for Weissmann, Edward S. Rudofsky of New York, says that the plaintiff’s lawyers “Agreed to accept fixed fees instead of their time charges to accommodate the settlement and see that Dr. Weissmann received a substantial recovery for her injuries and damages.” Weissmann has estimated the value of legal services rendered in her case at more than $1 million. As part of the settlement, Weissmann has agreed not to seek employment at Montefiore, Einstein, or any of 29 affiliated institutions. B.S. Weissmann’s lawyer, Rudofsky, says District Court Judge Lawrence M. McKenna’s findings in response to a motion filed by another Weissmann attorney, Eleanor Jackson Piel, “Indicated that Dr. Weissmann had a very strong case and had already satisfied most of the elements. The issue was whether the other side’s justification of it would stand up before a jury.” Eleanor Smeal, president of the Feminist Majority Foundation, which supported Weissmann, says the plaintiff’s success in her copyright case strengthened her claim of discrimination. In a separate but related case during this time, Weissmann charged that on two occasions, her former lab chief, Leonard M. Freeman, represented a book chapter she had written as his own. Letty Lutzker, a former colleague of Weissmann and Freeman’s who is now chief of nuclear medicine at St. Barnabas Medical Center in Livingston, N.J., says the case damages the feminist cause. A 1989 settlement offer from the institutions, under which Weissmann would have been paid $150,000, included a provision that neither side disclose the terms. Houston attorney Thomas H. Padgett, Jr., who represents plaintiffs in sex-discrimination suits, speculates that Weissmann might have been awarded more had the case gone to trial. Smeal says it’s disturbing that Montefiore’s insurance covers the settlement as well as Freeman’s expenses in the copyright case, even though Weissmann sued him as an individual. Weissmann says the case has hurt her prospects of returning to her field. Noting the length of Weissmann’s case, Didion says, “She had the stamina and the emotional and financial support to stay this long. Most womendon’t realize the type of commitment that is. We counsel women to be as informed as possible about what the costs are and what the alternatives are.”

Keywords: [“Weissmann”,”case”,”Montefiore”]

Law Fish News for 01-22-2018

Is it a crime to “encourage suicide”? Unusual Massachusetts case of teens Conrad Roy and Michelle Carter

Michelle Carter, of Plainville, was 17 when police say she encouraged her friend, 18-year-old Conrad Roy, of Mattapoisett, to commit suicide. Scott Gordon wrote, “Carter not only encouraged Conrad [Roy] to take his own life, she questioned him repeatedly as to when and why he hadn’t done it yet, right up to the point of when his final text was sent to her.” The report further alleges that, prior to his death, Roy texted Carter that he was scared and didn’t want to leave his family, but despite that, Carter continued to encourage him to take his own life, “And when he actually started to carry out the act, he got scared again and exited his truck but instead of telling him to stay out of the truck and turn off the generator, Carter told him to ‘get back in.'”. He tells 48 Hours’ Crimesider that once all the evidence is made public it will be clear that Carter “Counseled” Roy not to take his own life. “What we have here is a young man who made a voluntary decision to end his own life. It was his voluntary decision. His death was not caused by Michelle Carter.” Barbara Coombs Lee, an attorney and president of Compassion & Choices, a non-profit organization that provides guidance and resources about aid in dying, says Massachusetts’ lack of a criminal prohibition against assisted suicide will make the case against Carter an uphill battle for the prosecution. She says what went on between Michelle Carter and Conrad Roy is precisely what such laws are designed to prohibit. CBS News’ legal analyst and former Massachusetts prosecutor Rikki Klieman acknowledges that while the accusations against Carter are “Horrendous,” the case doesn’t neatly fit into any statute in Massachusetts. Beaumaster, the prosecutor in the Melchert-Dinkel case, told Crimesider he believes the case against 18-year-old Michelle Carter in Massachusetts will center around similar issues, such as whether or not words in and of themselves constitute assisted suicide and whether certain statements made via text or on the Internet are protected under the First Amendment. The Melchert-Dinkel case resulted in a very narrow statute in Minnesota which clearly defines when it is still a crime to assist in suicide, and Beaumaster said similar statutes are needed throughout the country. In the Michelle Carter case, “I do think there is culpabilty,” he said. Michelle Carter, now 18, is charged as a youthful offender since she was 17 at the time of Roy’s death, but she could still face punishment as an adult – up to 20 years – if convicted. Authorities have not commented on a motive in the case, but according to police documents, Conrad allegedly sent text messages to her friends and to Roy’s mother expressing concern about Roy’s whereabouts on the day he committed suicide, despite having been in constant contact with him and encouraging him to take his own life. The police documents indicate authorities believe she was putting together “a plan to get sympathy.” They also allege that after Roy’s death, Carter organized a softball tournament to raise money for mental health awareness in honor of Roy and posted several messages on social media about suicide prevention and how much she missed Roy. In a message to Roy’s mother dated July 25, 2014 – twelve days after his death – Carter wrote, “…There was nothing anyone could do to save him no matter how hard they tried. I never tried harder at something in my life.”

Keywords: [“Carter”,”suicide”,”Roy”]

The Strange Case of ‘Mr. Holmes’ Vs. U.S. Copyright Law

If everything goes according to plan, U.S. audiences will get to see Ian McKellen portray an elder Sherlock Holmes this July 17th in Miramax and Roadside Attractions’ Mr. Holmes. After the copyright to the Holmes intellectual property expired in the U.K. in 2000, we were ushered into the age when the Conan Doyle estate would be increasingly litigious with the few American copyrights left before all the Holmes stories are in the public domain. The estate argued at the turn of the century that their ownership of the Sherlock Holmes character was still valid until the complete works of Doyle enter the public domain in 2023. This lead to legal action against novelists who were publishing new Holmes stories as well as the television and film adaptations that were sold in America, like BBC’s Sherlock and Guy Richie’s movies. The straw that broke the camel’s back with the estate’s aggressive litigation was when they turned their attentions on Leslie Klinger, who was about to publish his second anthology of original Holmes stories. The first collection of stories, A Study In Sherlock, featured Sherlock Holmes stories from American authors and was published by Random House who paid the Conan Doyle estate $5,000 in licensing fees for the right to publish. When Klinger collected a sequel called In the Company of Sherlock Holmes, he found a deal to have it published at Pegasus Books, who received a request from the estate for another $5,000 in licensing fees. In June of 2014, the Seventh Circuit of the United States Court of Appeals ruled on the Klinger case and defined the copyright of the Sherlock Holmes stories. With American copyright law only extending 95 years after publication, 46 of the 56 Sherlock Holmes stories and all 4 novels were in the public domain. The final ten stories, collected in The Case-Book of Sherlock Holmes, were all published from 1923 to 1927 and will enter the public domain one by one up until 2023. The estate was also not allowed to pursue licensing fees on the characters of Sherlock Holmes and Watson. Judge Richard Posner, who wrote the decision, took the opportunity to scoff at how ridiculous that idea was as a legal argument using a Shakespeare as an analogy: “It’s not unusual for an author to use the same character in successive works, yet with differences resulting, in the simplest case, just from aging. In Shakespeare’s two Henry IV plays, the Henry who later becomes Henry V is the Prince of Wales, hence Crown Prince of England; in Henry V he is the King of England. Were Henry IV in the public domain and Henry V under copyright, Henry Prince of Wales could be copied without Shakespeare’s permission but not Henry V. Could the Doyle estate doubt this? Could it think Holmes a more complex and altered character than Henry?”. From the outset of the series of Arthur Conan Doyle stories and novels that began in 1887, Holmes and Watson were distinctive characters and therefore copyrightable. In November of 2014, the Supreme Court of the United States rejected the appeal from the Conan Doyle estate and the Sherlock Holmes and Watson characters were legally protected property of the American public domain. This month, the estate filed suit against Miramax and Roadside Attractions for damages and an injunction on their film Mr. Holmes on the grounds that an aged Sherlock Holmes is a derivative work that still falls under their copyright on the Case-Book stories.

Keywords: [“Holmes”,”stories”,”Sherlock”]