Can words alone kill?

A Massachusetts judge thinks so. Last week. Judge Lawrence Moniz convicted Michelle Carter of manslaughter for encouraging her boyfriend to kill himself over the phone. 

Matthew Segal of the Massachusset ACLU stated of the conviction: “This conviction exceeds the limits of our criminal laws and violates free speech protections guaranteed by the Massachusetts and US Constitutions.” If upheld on appeal, the verdict could chill “important and worthwhile end-of-life discussions between loved [ones] across the Commonwealth.” 

Read about the case and the reaction from legal scholars about the constitutional issues the verdict presents. 

Tentative Agreement on Death Penalty Procedures in Arizona

A tentative settlement has been reached between the state and a group of prisoners who sued over how executions are conducted. That’s according to lawyers representing the prisoners. The settlement would cement new execution rules published by the Department of Corrections in May.

Some of the biggest changes to the new protocol are ending the use of a paralytic drug that some say masks pain, as well as preventing the Corrections Director from closing the curtain to the death chamber if something goes wrong.

Additionally, it gets rid of the controversial provision that allows inmates to provide their own execution drugs.


Judge Posner gets frisky

Judge Posner of the Seventh Circuit issued an opinion, which struck down certification of a class of consumers seeking to sue companies in the business of selling eye drops. The class is annoyed that these companies recommended "large" size eye drops, when the smaller cheaper sizes would work just as well.

  His reasoning? Pretty amusing:

“Suppose the class members all happened to own pedigreed cats and the breeders who had sold the cats to the class members had told them that as responsible cat owners they would have to feed the cats kibbles during the day and Fancy Feast at night and buy a fountain for each cat because cats prefer to drink out of a fountain (where gravity works for them) rather than out of a bowl (where gravity works against them) and they don’t like to share a fountain with another cat.

Then suppose the cat food got expensive, and the fountains didn’t work.

The cat owners became dissatisfied. Yet would anyone think they could successfully sue the breeders? For what? The breeders had made no misrepresentations. It’s the same here."

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U.S. v. Gorman

The 9th Circuit panel affirmed the district court's order in a civil forfeiture action granting claimant's motion to suppress evidence seized pursuant to a traffic stop; affirmed the award of attorneys' fees; and held that the search of claimant's vehicle following coordinated traffic stops violated the Constitution.

The panel held that the first stop of claimant's vehicle was unreasonably prolonged in violation of the Fourth Amendment; the dog sniff and search of claimant's vehicle during the coordinated second vehicle stop followed directly in an unbroken causal chain of events from that constitutional violation; and consequently, the seized currency from the second stop was the “fruit of the poisonous tree” and was properly suppressed under the exclusionary rule.

The panel also held that none of the exceptions to the “fruit of the poisonous tree” doctrine – the “independent source” exception, the “inevitable discovery” exception, and the “attenuated basis” exception – applied to claimant's case.

Read the entire opinion here.

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Kozinski, again

Kozinski is known for being unconventional, quirky, and provocative in his opinions. The way he writes is outside of the box many judges and lawyers have limited themselves to. A perfect example is his dissenting opinion in a 2004 case. He begins with a hypothetical script between the defendant and his lawyer in the case being decided:

"One can only imagine the conversation between Ramirez-Lopez and his lawyer after this opinion is filed:

Lawyer:  Juan, I have good news and bad news.

Ramirez-Lopez:  OK, I'm ready.   Give me the bad news first.

Lawyer:  The bad news is that the Ninth Circuit affirmed your conviction and you're going to spend many years in federal prison.

Ramirez-Lopez:  Oh, man, that's terrible.   I'm so disappointed.   But you said there's good news too, right?

Lawyer:  Yes, excellent news!   I'm very excited.

Ramirez-Lopez:  OK, I'm ready for some good news, let me have it.

Lawyer:  Well, here it goes:  You'll be happy to know that you had a perfect trial.   They got you fair and square!

Ramirez-Lopez:  How can that be?   Didn't they keep me in jail for two days without letting me see a judge or a lawyer?   Weren't they supposed to take me before a judge right away?

Lawyer:  Yes, they sure were.   But it's OK because you didn't show that it harmed you.   We have a saying here in America:  No harm, no foul.

Ramirez-Lopez:  What do you mean no harm?   There were twelve guys in my party who said I wasn't the guide, and they sent nine of them back to Mexico.

Lawyer:  Yeah, but so what?   Seeing the judge sooner wouldn't have helped you.

Ramirez-Lopez:  The judge could have given me a lawyer and my lawyer could have talked to those guys before the Migra sent them back.

Lawyer:  What difference would that have made?

Ramirez-Lopez:  My lawyer could have taken notes, figured out which guys to keep here and which ones to send back.

Lawyer:  Hey, not to worry, dude.   The government did it all for you.   They talked to everyone, they took notes and they kept the witnesses that would best help your case.   Making sure you had a fair trial was their number one priority.

Ramirez-Lopez:  No kidding, man.   They did all that for me?

Lawyer:  They sure did.   Is this a great country or what?

Ramirez-Lopez:  OK, I see it now, but there's one thing that still confuses me.

Lawyer:  What's that, Juan?

Ramirez-Lopez:  You see, the government took all those great notes to help me, just so we'd know what all those guys said.

Lawyer:  Right, I saw them, and they were very good notes.   Clear, specific, detailed.   Good grammar and syntax.   All told, I'd say those were some great notes.

Ramirez-Lopez:  And twelve of those guys all said I wasn't the guide.

Lawyer:  Absolutely!   Our government never hides the ball.   The government of Iraq or Afghanistan or one of those places might do this, but not ours.   If twelve guys said you weren't the guide, everybody knows about it.

Ramirez-Lopez:  Except the jury.   I was there at the trial, and I remember the jury never saw the notes.   And the officers who testified never told the jury that twelve of the fourteen guys that were with me said I wasn't the guide.

Lawyer:  Right.

Ramirez-Lopez:  Isn't the jury supposed to have all the facts?

Lawyer:  Not all the facts.   Some facts are cumulative, others are hearsay.   Some facts are both cumulative and hearsay.

Ramirez-Lopez:  Can you say that in plain English?

Lawyer:  No.

Ramirez-Lopez:  The jury was supposed to decide whether I was the guide or not, right?   Don't you think they might have had a reasonable doubt if they'd heard that twelve of the fourteen guys in my party said it wasn't me?

Lawyer:  He-he-he!   You'd think that only if you didn't go to law school.   Lawyers and judges know better.   It makes no difference at all to the jury whether one witness says it or a dozen witnesses say it.   In fact, if you put on too many witnesses, they might get mad at you and send you to prison just for wasting their time.   So the government did you a big favor by removing those nine witnesses before they could screw up your case.

Ramirez-Lopez:  I see what you mean.   But how about the notes?   Surely the jury would have gotten a different picture if they had just seen the notes of nine guys saying I wasn't the guide.   That wouldn't have taken too long.

Lawyer:  Wrong again, Juan! Those notes were hearsay and in this country we don't admit hearsay.

Ramirez-Lopez:  How come?

Lawyer:  The guys writing down what the witnesses said could have made a mistake.

Ramirez-Lopez:  You mean, like maybe one of those twelve guys said, “Juan was the guide,” and the guy from Immigration made a mistake and wrote down, “Juan was not the guide”?

Lawyer:  Exactly.

Ramirez-Lopez:  You're right again, it probably happened just that way.   I bet those guys from Immigration wrote down, “Juan wasn't the guide,” even when the witnesses said loud and clear I was the guide-just to be extra fair to me.

Lawyer:  Absolutely, that's the kind of guys they are.

Ramirez-Lopez:  You're very lucky to be working with guys like that.

Lawyer:  Amen to that.   I thank my lucky stars every Sunday in church.

Ramirez-Lopez:  I feel a lot better now that you've explained it to me.   This is really a pretty good system you have here.   What do you call it?

Lawyer:  Due process.   We're very proud of it."

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