Church Fires Photog Over Scalia Picture: Freelancer Pays for ‘Right Thing’

A freelance photographer has been fired by the Archdiocese of Boston’s newspaper for releasing a picture of U.S. Supreme Court Justice Antonin Scalia making a controversial gesture in the Cathedral of the Holy Cross on Sunday. Peter Smith, who had freelanced for The Pilot newspaper for a decade, lost the job yesterday after the Herald ran his photo on its front page. Smith said he has no regrets about releasing it.

“I did the right thing. I did the ethical thing,” said Smith, 51, an assistant photojournalism professor at Boston University.

Smith snapped the photo of Scalia flicking his hand under his chin after a Herald reporter asked the conservative jurist his response to people who question his impartiality on matters of church and state. Smith wouldn’t give up the photo earlier this week but chose to release it when he learned Scalia said his gesture had been incorrectly characterized by the Herald. Smith, who was standing in front of the judge, said the Herald “got the story right.”

Smith said the Pilot had an obligation at that point “to bring some clarity to it.”

“I felt that same obligation,” Smith said. “I had to say what I knew and come forward with it.”

The weekly Catholic newspaper made a “journalistic decision” not to run or release the photo, said Archdiocese spokesman Terry Donilon. “Because he breached that trust with the editor, we will no longer engage his services as a freelance photographer,” Donilon said.

“It’s nothing personal,” added Pilot editor Antonio Enrique. “I need to try and find people I can trust.”

Details here from the Boston Herald. (via Law Blog)

Symposium on Judicial Selection and Independence

Fordham University School of Law, New York City, April 7, 2006

The perennial debate over how state court judges should be selected has intensified since the U.S. Supreme Court's 2002 decision in Republican Party of Minnesota v. White which relaxed the limits on campaign conduct during judicial elections.

Through distinguished panels consisting of members from 15 states (some of which appoint some or all of their judges), this symposium will reappraise the alternative of appointive selection of judges, including both classic and new models, in light of experience.

Panelists will include professors of law and political science, judges, and practitioners, as well experts in the area of judicial conduct and court reform. National in scope and with reflections on the international context as well, the symposium will focus on types and implications of appointive systems, including what should be a good model for appointing state court judges.

Via I.M. Kierkegaard.

The Faces of Wrongful Conviction

A Conference Examining Wrongful Convictions and the Administration of the Death Penalty in California

April 7 - April 9, 2006 -- Hosted by UCLA School of Law

The purpose of this conference is to illustrate both the problem of wrongful conviction and the unfair application of the death penalty in California and to mobilize for change. Since 1990, over 200 people have been wrongfully convicted and exonerated in California. This conference will facilitate the largest gathering of California’s exonerees ever. In addition, new research discussing the causes and prevalence of wrongful conviction in California and demonstrating systemic racial and geographic disparities in the application of the death penalty in this state will be presented.

This conference will offer a series of workshops on the causes of wrongful conviction (i.e., snitch witnesses, mistaken eyewitnesses, junk science, etc.), problems with the death penalty, and opportunities for action. Workshop topics will appeal to: (1) exonerees; (2) lawyers and law students; and (3) activists. Panel speakers will include: prosecutors, jurors, judges, the family members of murder victims, and the family members of people on death row. This conference will also incorporate film, art, drama, and a new book on California exonerees.

This sounds like a great "conference," and it has a truly impressive lineup of speakers. Check out the details here.

Justices Seem Divided Over eBay Patent Injunction Case

Two veterans of the Supreme Court bar argued forcefully -- and inconclusively -- Wednesday in a high-stakes dispute over how easy it should be for a patent holder to win an injunction against an infringer.

From the tenor of the questioning in eBay v. MercExchange, justices seemed closely divided over the issue, alternately sympathetic toward Sidley Austin's Carter Phillips, arguing his 49th case at the Court, and then toward his adversary, WilmerHale's Seth Waxman, appearing before the high court for the 47th time.

The case has drawn wide interest, with businesses lining up on both sides. Some companies, including Intel, are siding with eBay, expressing concern that the holder of a single patent that covers one of thousands of processes inside a product could bring down that product too easily by obtaining a paralyzing injunction. The recent patent dispute that almost crippled BlackBerry service is cited as a prime example.

Phillips represented eBay, arguing that injunctions should not be granted automatically and that instead, judges should have broad discretion to balance equities and to decide, in some cases, that money damages are a "perfectly adequate" way to penalize infringers. Permanent injunctions, he said, represent a "sword of Damocles" over companies that can be wielded by small patent holders or "trolls" who do not even make direct use of the patent.

Waxman represented MercExchange, a small Virginia firm that sought an injunction against eBay. Both Court precedent and the will of Congress, he said, dictate that "a final judgment of infringement yields an injunction in all but the rarest of cases." He portrayed his client as a hardworking inventor, not a "patent troll" or a "promiscuous licenser" aiming to profit from his patent merely through litigation.

Details here from Tony Mauro of Legal Times via Law.com.

Apple Corps’ Lawyers Freak Out

The Law Blog ran an item earlier this week on Apple v. Apple, the battle between the Beatles’ recording company and the computer maker. Today WSJ.com has a story from The Wall Street Journal’s Aaron Patrick on today’s courtroom proceedings in London. The Beatles’ Apple Corps asked the court to order Apple Computer to stop using the Apple logo and name to promote its iTunes music store.

In what was clearly the high point of yesterday’s session, Apple Corps’ lawyer, Geoffrey Vos, downloaded and played a song to demonstrate how iTunes worked. The song? “Le Freak,” by ’70s band Chic.

Details here from the Wall Street Journal's Law Blog.

Case Tests Power of Judiciary, President

A long-awaited test of the judiciary's power during wartime came to the Supreme Court yesterday, and, contrary to the urgings of the Bush administration, the justices did not seem inclined to duck it.

During a 90-minute oral argument on the legality of the military commissions President Bush has set up to try terrorism suspects, most members of the court resisted -- sometimes sharply -- the administration's request to dismiss the case because of a new federal law circumscribing appeals by terrorism suspects.

A key comment came from Justice Anthony M. Kennedy, the closely divided court's moderate-conservative swing voter. He told Solicitor General Paul D. Clement that he has "trouble with the argument" that, because of the new law, court challenges to the commissions must wait until the trials are over.

"I had thought that the historic function of habeas corpus is to . . . test the jurisdiction and legitimacy of a court," Kennedy said. Habeas corpus is the legal vehicle through which prisoners challenge the lawfulness of their detention by the executive branch.

The court's defense of its turf does not bode well for the Bush administration's broader arguments in defense of the military commissions, but it remained unclear how the justices might ultimately rule on the merits of the case.

Details here from the Washington Post. Audio excerpts from today's oral argument can be found here.

Married Lawyer Sues eHarmony for Refusing to Help Him Find Love

A man separated from his wife but not quite divorced is suing the popular online matchmaker eHarmony for refusing to help him find a date.

John Claassen, a 36-year-old lawyer from Emeryville, filed a lawsuit in Alameda County Superior Court alleging eHarmony abridged his civil rights by refusing to match him up. He said the company, which has an "unmarried only" policy, broke state law by discriminating against him based on his marital status.

Claassen, who is seeking $12,000 in civil penalties, said Monday he expects his divorce to be official in about two months, but that he shouldn't have to wait until then to use eHarmony. It should be up to would-be dates to decide whether to pass him over because he is technically still married, he said.

Details here from the San Francisco Chronicle.

Convicted of Forging Judge's Order, Attorney Is Given 27-Month Sentence

Federal judge says of attorney, 'I'm not sure that any rational lawyer would ever do anything like this'

Perry S. Reich, the Long Island, N.Y., attorney who stands convicted of forging a federal magistrate judge's order and lying to the government, was sentenced Friday to 27 months in prison after a judge described his plight as "disquieting" and unlike any case he had ever seen.

Reich, 57, was a respected attorney whose conviction stunned many in the legal community who knew him from his days as a clerk at the Appellate Division, 2nd Department, and at the Court of Appeals, and later as an appellate specialist with a varied practice.

Eastern District Judge Nicholas G. Garaufis likened Reich's story to a Greek tragedy.

"I don't know why he did what he did -- I don't know if he knows why he did what he did," Judge Garaufis said. "I'm not sure that any rational lawyer would ever do anything like this. It defies logic."

Reich spoke briefly, expressing regret and asking the judge to consider that he had been a "good and honest lawyer" for 30 years.

"I'm standing here today with my career destroyed, my life in shambles," he said.

Prosecutors had recommended a sentence of between 63 and 78 months, or 6 1/2 years, while the Probation Department suggested between 27 and 31 months.

Note to self: Don't ever do this. Details here from the New York Law Journal via Law.com.

"More Monkeys Chasing Fewer Footballs"

Firms Buying Their Way Into the High Court Club

Once a tiny specialty, Supreme Court work is growing

It is billed as the most important patent case of the decade, and the companies on each side, eBay Inc. and MercExchange, a one-time online auction site, have fought tooth and nail. Both hired top counsel to fight the case, but when they needed to move to the Supreme Court, eBay wasn't taking any chances.

The question, how easy it should be for a patent holder to win an injunction against an infringer, was too important. Too important, apparently, to leave only to Jeffrey Randall, a veteran litigator now with megafirm Skadden, Arps, Slate, Meagher & Flom.

Instead the online auction giant reached for a familiar high court advocate, Carter Phillips of Sidley Austin, whose argument before the Supreme Court on Wednesday on behalf of eBay will be his 49th.

At MercExchange, Phillips' hire had a ripple effect. The company shoved aside Hunton & Williams for its Court argument, hiring Seth Waxman, the former Clinton administration solicitor general.

MercExchange's lawyers got it. "When you get to the Supreme Court it's a very small club, and you want people who are polished practitioners," says Scott Robertson, Hunton's lead partner on the case.

Details here from Legal Times via Law.com.

Strip Clubs and the Law (and a Lawyer!)

“Should business execs meet at strip clubs?” asks a headline in today’s USA Today (click here). Female employees have increasingly questioned whether it’s fair — or legal — for their male managers and colleagues to exclude them when they fraternize at strip clubs.

Recently, investment firms have cracked down on the practice, and the NASD and the NYSE have both proposed rules that would force firms to adopt business entertainment policies that specify appropriate venues.

Says Hydie Sumner, a financial consultant who won a $2.2 million gender discrimination judgment from Merrill Lynch in 2004: “When ‘business activities’ involve the strip club, golf course or hunting ranches … discrimination is often perpetuated as those in power support and advance those with like minds and tastes.”

What galvanized reform efforts, according to the story, was a 2003 Fidelity Investments trader’s bachelor party, paid for by brokerage firms including Jefferies & Co., that included paid female escorts (not to mention dwarf-tossing). And last fall, Morgan Stanley fired three salesmen and a researcher who took clients to a strip club on an Arizona business trip.

Details here from The Wall Street Journal's Law Blog.

N.Y. Appellate Court Rejects Suit Over Leno's Mocking Display of Photo

Talk-show host Jay Leno has scored a victory in upstate New York.

A joke on "The Tonight Show," in which Leno mocked a woman in a photograph allegedly sent in by her former employer, did not violate the state's privacy-right laws, the Appellate Division, 4th Department, has ruled.

Civil Rights Law §§50 and 51 must be "narrowly construed and 'strictly limited to nonconsensual commercial appropriations of the name, portrait or picture of a living person,'" the panel held in its per curiam decision, Walter v. NBC Television Network, 05-01646.

"Here, the use of plaintiff's photograph by the NBC defendants was not strictly limited to a commercial appropriation, and thus the use of the photograph does not fall within the ambit of those sections of the Civil Rights Law," the panel held.

According to news reports, on a November 2003 broadcast of the popular NBC late-night show, Leno used a photograph of Rochester, N.Y.-area woman Claire Walter in the "Headlines" segment of his program.

Leno displayed a card Walter alleged had been distributed by her former employer, co-defendant Dorschel Automotive Group, which features an unflattering, unsmiling image of Walter and the text, "Thanks from CLAIRE WALTER, your friendly Service Advisor," along with the dealership's name and phone number. When displaying the photograph, Leno said in a mock voice meant to be Walter's, "Want your car fixed?"

Walter initiated an action against NBC, Leno, "The Tonight Show" and Dorschel Automotive alleging violations of her right to privacy and intentional infliction of emotional distress.

Details here from the New York Law Journal via Law.com.

Law Firm Ordered to Pay $10.8M for Dumping Clients for More Lucrative Suit

A jury ordered a law firm to pay at least $10.8 million for dropping three small bottlers from a dispute with giant Poland Spring Water Co. in order to bring a more lucrative class action suit. The jury unanimously found Wednesday that lawyers from Hagens Berman Sobol Shapiro, a Seattle law firm, violated their duty of loyalty to three small businesses that in 2003 were close to settling a claim with Nestle Waters North America, Poland Spring's owner. Jurors will return to federal court next week to consider possible punitive damages.

In its decision Wednesday, the jury awarded Maine companies Glenwood Farms Inc. and Carrabassett Spring Water $3.9 million each, and New York-based Tear of the Clouds $3 million.

"This was not a case of the attorneys taking care of consumers. This was a case of the attorneys grabbing everything they could for themselves," said Tear of the Clouds co-owner Robert F. Kennedy Jr.

The bottlers contended the "natural spring water" labels on the Poland Spring brand were misleading because the water is pumped from wells, not springs. But they were seeking an out-of-court settlement without a public disclosure that would damage the entire Maine bottled water industry, attorney William Robitzek said.

The three companies said Hagens Berman was assisting them in their case against Poland Spring, but defected at the last minute and filed class action claims in five states, causing Nestle Waters to withdraw its settlement offer.

Details here from the AP via Law.com.

Adult Entertainment Lawyer Prevails at 11th Circuit in Battle Over Obscenity Law

Adult entertainment lawyer Cary S. Wiggins has the boyish looks, good manners and perfectly pressed shirt of someone who was raised right.

Last month Wiggins, 34, succeeded in overturning Georgia's obscenity law, which includes a ban on so-called sex toys.

Wiggins acknowledges not everyone would congratulate themselves on such a feat. He said that when he announced the news to his father, a retired U.S. Air Force pilot, his initial response was, "You're not proud of that, are you?"

Wiggins told his father that he was, explaining he "convinced a panel of three federal judges to see the statute violates one of the public's most cherished rights," namely, free speech -- even though obscenity is not protected by the First Amendment.

The case is This That and the Other Gift v. Cobb County, Ga., No. 04-16419 (11th Cir. Feb. 15, 2006). Circuit judges Susan H. Black, Frank M. Hull and Jerome Farris heard the case.

Details here from the Fulton County Daily Report via Law.com.

Millionaire Prefers 10 Years in Jail to Paying Ex-Wife

Man, 68, spends a decade in jail rather than disclose assets

A millionaire jailed for more than a decade for contempt in his divorce case continues to block efforts to trace his missing assets and should remain jailed, a three-judge panel ruled.

H. Beatty Chadwick, 68, is believed to hold the record for time served in a U.S. civil contempt case.

He was jailed in 1995 for allegedly hiding $2.5 million in overseas banks during a bitter divorce. Since then, a series of judges have told him he could go free once he tells the court what happened to the money, but Chadwick hasn't budged, the judges said.

Chadwick, a former corporate lawyer, maintains he lost the money in an overseas investment. Experts say it would now be worth more than $8 million.

Details here from the AP via CNN.com.

Texas Arresting People in Bars for Being Drunk

SAN ANTONIO, Texas (Reuters) - Texas has begun sending undercover agents into bars to arrest drinkers for being drunk, a spokeswoman for the Texas Alcoholic Beverage Commission said on Wednesday.

The first sting operation was conducted recently in a Dallas suburb where agents infiltrated 36 bars and arrested 30 people for public intoxication, said the commission's Carolyn Beck.

Being in a bar does not exempt one from the state laws against public drunkenness, Beck said.

The goal, she said, was to detain drunks before they leave a bar and go do something dangerous like drive a car.

Jesus! First they ban smoking in bars, and now they're trying to ban drinking??? Details here from Reuters via Yahoo!. (cudos to FBK)