Research Associates
	Volume 12, Number 8       Our 23rd Year   August 2004

“The Constitution, taken as a whole, binds the conduct of federal government wherever it acts. …”
--- Rasul v. Bush & Al Odah v. United States (brief filed by eight former federal officials)

“… where the deprivation of liberty is complete, ongoing, potentially without end, and based entirely upon a secret record, the need for counsel could not be more compelling. …”
-- Hamdi v. Rumsfeld, (brief filed by the American Bar Association)

DECISIONS OF INTEREST

U.S. SUPREME COURT

TENNARD v. DRETKE, No. 02-10038 (U.S.S.C. June 24, 2004)
In a capital murder case involving a defendant with an IQ of 67, a COA should have issued, because a reasonable jurist could have found the district court's assessment of constitutional claims, relating to defendant's low IQ, debatable or wrong. http://laws.lp.findlaw.com/us/000/02-10038.html
 
BLAKELY v. WASHINGTON, No. 02-1632 (U.S.S.C. June 24, 2004)
Because the facts supporting the defendant's exceptionally harsh sentence were neither admitted by the defendant, nor found by a jury, the sentence violated defendant's Sixth amendment right to trial by jury. http://laws.lp.findlaw.com/us/000/02-1632.html

MISSOURI v. SEIBERT, No. 02-1371 (U.S.S.C. June 28, 2004)
Where an officer intentionally withheld Miranda warnings, obtained a confession, then issued Miranda warnings and elicited a second confession, the court found that both confessions were inadmissible as violating the defendant’s Fifth Amendment rights. http://laws.lp.findlaw.com/us/000/02-1371.html

US v. PATANE, No. 02-1183 (U.S.S.C. June 28, 2004)
Failure to give as suspect full Miranda warnings does not require the suppression of the physical fruits of the suspect's unwarned, voluntary statements.  http://laws.lp.findlaw.com/us/000/02-1183.html

FIRST CIRCUIT

LARGESS v. SUPREME COURT OF MASS.
The Court rejected an attempt by conservative groups and state lawmakers to stop gay marriage in Massachusetts. The plaintiffs had argued that Massachusetts' high court usurped the power of the Legislature, and thereby violated the U.S. Constitution, when it ruled last year that gay couples are entitled to wed.

For copy of opinion contact RESEARCH ASSOCIATES jmf@researchassociates.net
 

SECOND CIRCUIT

UNIVERSAL ACUPUNCTURE PAIN SERVICES v. QUADRINO & SCHWARTZ, P.C., No. 02-9469 (2d Cir. July 06, 2004)
Court ruled that an attorney originally retained on a contingency fee basis could recover in quantum meruit, even though he was discharged before the completion of the case and no recovery was ultimately had by his clients. http://caselaw.lp.findlaw.com/data2/circs/2nd/029469pv2.pdf

US v. NORDEN SYS., INC., No. 03-6152 (2d Cir. July 14, 2004)
Even though plaintiff's missed a court-imposed deadline for amending a complaint by 17-months, the Court found that plaintiff's actions, though inexcusable, were not so egregious as to warrant dismissal of his entire complaint. http://caselaw.lp.findlaw.com/data2/circs/2nd/036152p.pdf

NEW YORK NORTHERN DISTRICT

LAMERE v. N.Y.S.
Ruling on an issue that has divided trial judges nationwide, the court found that a treating physician is by definition an expert, and is therefore owed a "reasonable" fee rather than the $40 statutory stipend when providing technical definition testimony.

For copy of opinion contact RESEARCH ASSOCIATES jmf@researchassociates.net

NEW YORK COURT OF APPEALS

PEOPLE v. LAVALLE, 71 (N.Y. June 24, 2004)
Court affirmed defendant's conviction, but vacated his death sentence because the jury deadlock instruction given was unconstitutional under State Constitution, Article I, section 6. http://caselaw.lp.findlaw.com/data/ny/cases/app/71opn04.pdf

IN RE: NE YORK CIVIL LIBERTIES UNION v. CITY OF SCHENECTADY, 95 (N.Y. 6/29/04)
Incident reports prepared by police officers pertaining to the use of force are subject to production pursuant to a Freedom of Information Law request made by plaintiffs. http://caselaw.findlaw.com/data/ny/cases/app/95opn04.pdf
 

ARTICLES OF INTEREST

Anne Denecke, Mary Drobka and Cecily Fuhr of Davis Wright Tremaine LLP, “Significant Changes to FLSA ‘White Collar’ Exemptions Effective August 23, 2004.”

For copy of article contact RESEARCH ASSOCIATES jmf@researchassociates.net

“’Antagonistic Motions’ Spark Retort from Judge,” Texas Lawyer.

An order by a federal judge is making the e-mail circuit in the Texas legal community. U.S. District Judge Sam Sparks wrote in the order that certain lawyers’ behavior makes him feel as though he’s supervising kindergarten. The judge also dropped a hint about the benefit of attending anger management classes.

For copy of article and opinion contact RESEARCH ASSOCIATES jmf@researchassociates.net

“An Eye for an Eye: Foresight on Remedies for Lasik Surgery’s Problems,” University of Cincinnati Law Review, Volume 71, Number 2, Winter 2002.

“Coaches’ Liability for Athletes’ Injuries and Deaths,” Seton Hall Journal of Sport Law, Volume 13, Number 1, 2003.

“You’ve Got Mail: The Modern Trend Towards Universal Electronic Service of Process,” Buffalo Law Review, Volume 51, Number 2, Spring 2003.

BRIEF RELIEF MATTERS

1. New York - motion and affidavit seeking production of psychiatric notes.
2. New York Federal Business Law § 399-C research.
3. New Jersey and Connecticut - statute of limitations for student loan.
4. New York - research as to defenses to change of name of infant.
5. New York - memo and motion to vacate settlement agreement entered into prior to trial.
6. New York and New Jersey - owner’s liability for injury to employee of subcontractor.