Federal Courts, Equitable Discretion, and the Continuing Problems with Lethal Injection

by Justin Marceau and Alan K. Chen. Marceau is an associate professor at the University of Denver Sturm College of Law and a former public defender in Arizona. Chen is the William M. Beaney Memorial Research Chair and Professor of law at the University of Denver Sturm College of Law and a former staff attorney at the ACLU’s Chicago office.

The State of Arizona’s recently botched execution of Joseph Wood is just the latest in a series of horrific events that have introduced the American public to a criminal justice problem that practitioners and legal scholars long have known about – lethal injections are an extremely troubling method for carrying out capital punishment. Similar to the cases of Clayton Lockett in Oklahoma and Dennis McGuire in Ohio, Wood reportedly endured extensive suffering during the hour and 52 minutes it took for the drugs administered by the state’s executioners to end his life.

The Wood Litigation Seeking Access to Information about the Drugs and Executioners

In the days preceding Wood’s execution, his attorneys mounted an impressive campaign to overturn a lower court order denying him access to basic information about the qualifications (but not the identity) of the executioners and the source of the drugs to be used. Wood argued that he had a qualified First Amendment right of access to such information.

On Monday of this week, things looked promising for Wood and his legal team. An erudite panel of the Ninth Circuit concluded that it was not too much to ask of Arizona to require it to turn over the information Wood sought, or to delay the execution. Behind such litigation is the reality that without such information, of course, it would be impossible to assess whether the execution might violate the Eighth Amendment and create too great a risk of cruel and unusual punishment. In other words, in order to know whether their client had a colorable substantive claim that the execution would be cruel and unusual, the lawyers first had to gain access to the details of the execution procedures. The procedural claim at issue in the Ninth Circuit, then, was a necessary precursor to being able to litigate the substantive legality of Arizona’s execution system.

The Ninth Circuit panel voted 2-1 that Wood had raised a serious First Amendment claim and would suffer irreparable harm if an injunction against his execution were not granted. To be clear, all the Ninth Circuit ordered was that Arizona either turn over the information and proceed to execution as planned on Wednesday, or delay the execution until full and fair litigation regarding the right to access this information was conducted. Instead, Arizona successfully petitioned the Supreme Court, which quickly overturned the stay of execution.

Was this Just a Gimmick to Delay Litigation?

Some might ask why, with a thirty year track record and tacit Supreme Court approval in 2008, lawyers were inquiring about lethal injection methods. We hear about delays in executions – we even see California’s death penalty held unconstitutional, in part, because of delay. But the reason for the litigation is clear: lethal injection is not working.

With drug shortages for the previous three-drug execution cocktail of choice, states have begun to experiment with the doses and types of drugs, and the qualifications of executioners are not getting any better. In a very perverse turn on Justice Louis Brandeis’ famous quote that states may “serve as a laboratory, and try novel . . . experiments” that the rest of the country might not, states are innovating in their execution methods. In the rush to continue with executions, Arizona and other states are using their execution chambers as laboratories for human experimentation. What combination will create the most aesthetically pleasing execution for public consumption is the question the Departments of Correction seek to answer.

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American Bar Association – Focus on Marketing

I n its help-wanted on Mediabistro.com the American Bar Association is recruiting for help in marketing. Here is that ad.

The job title is “Digital Marketing Specialist.” That professional will, says the help wanted, be:

“Responsible for one or more aspects of translating marketers’ needs and and visions into digital experiences that are member/customer friendly and moves the member to action relating to the message, irrespective of the medius, [e.g. social media, targeted e-mail, shopaba.org, americanbar.org., et.].

Obivously, the ABA has joined the rest of the legal sector in the urgency of hustling. Actually, that mandate is sweeping through most disciplines.

In public relations, although a growing field, those who are thriving are cagey relentless marketers who know how to close sales. Ther rest have become stuck. A sign of that state of limbo is their, you bet, digital promotional material. Everything from their website to tweets (or lack of them) screams they have become clueless how to put themselves out there in 2014.

ABA, like most trade associations, has to fight for its financial existence. Many of us who used to consider it standard to join at least one trade association know we can shrug it off. So much of the knowledge they used to provide is available free on the Internet. As for lobbying for our interests, we can do that ourselves quite well with digital tools. The last time I paid membership to any trade association in communications was 2002.


5 Things You Should Bring to a Personal Injury Consultation

You’ve already scheduled a consultation with an experienced personal injury lawyer. So what should you do to prepare for your meeting?

While you should leave the legal research to your lawyer and his or her staff, there are several things you can and should, if at all possible, bring to the table to ensure your consultation goes smoothly.

Here are five things you’ll want to bring to your personal injury consultation:

  1. A list of questions you’d like to ask. The consultation is a time for an injury lawyer to assess the strengths and weaknesses of your case. But it’s also a time for you to get to know the lawyer and determine whether he or she will be a good fit for you, as well as to decide whether you want to move forward with a personal injury lawsuit. Jot down a list of a questions beforehand, so you can be sure to get all the information you need to make these important decisions.
  2. Your medical bills. The amount of damages awarded in a personal injury case will depend in large part on the severity of your injury as well as your past, present, and future medical bills. Bringing your medical bills with you to the consultation will give the attorney the information he or she needs to assess the strength of your potential lawsuit.
  3. A written timeline of the circumstances surrounding your accident or injury. Memories fade over time, which is why it’s important to to take notes on your accident or injury as soon as possible after it happens. An important part of any personal injury case is being able to prove who was at fault, and having a contemporaneous timeline of events will help your lawyer gauge the likelihood of being able to prove fault in court.
  4. Photos and other evidence from the scene of your injury. Also important for proving fault are photographs from the scene of your injury or other evidence of how your injury was caused. This includes the names and contact information of those who may have witnessed your injury. Bring anything you may have with you to your consultation and your lawyer will be able to determine how relevant, admissible, or helpful to your case this evidence may be.
  5. Correspondence from the other party, if any. If you have received any correspondence or legal documents from a possible defendant in an injury lawsuit (such as correspondence from the insurance company of the other driver in an automobile accident), it is important to bring these documents with you to the consultation to give your lawyer an idea of who you’ve talked to and what’s been said.

If you’ve been injured and have questions about getting legal help, check out FindLaw’s Learn About the Law section on Getting Legal Help for an Accident or Injury. You can also head to our State Laws section to learn about how injury cases are handled in your state or metro area.

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N.H. Driver Brakes for Ducklings, Gets $100 Ticket

A New Hampshire woman recently learned the hard way that state police don’t consider rescuing baby ducklings worthy of the “emergency” status required for stopping on the state’s highway medians.

Hallie Bibeau, 33, of Newfields, was driving on New Hampshire’s Route 101 when she saw a mother duck and a group of ducklings trying to cross the road. Bibeau slammed on her brakes and pulled to the side, but the mother and several of the ducklings were hit by another car, reports Manchester’s WMUR-TV.

When Bibeau noticed that several of the ducklings were still alive, she got out of her car to try to do the right thing … or at least, so she thought.

2 Survivors, 1 Ticket

Bibeau said that after stopping, she saw that the mother duck was dead, but that several of the ducklings were still alive. She watched as a few of them made it to the opposite lane of the highway, only to get run over.

Bibeau got out of her car and was able to rescue the two remaining survivors. As she did so, an ambulance on its way to a different incident stopped to see if she needed help.

While she was explaining the situation to the ambulance driver, a New Hampshire state trooper also stopped. But he wasn’t there to help. Instead, he issued Bibeau a $100 citation for stopping her car in the median.

Law Prohibits Stopping, Parking on Highway Median

Under New Hampshire law, stopping, standing or parking a vehicle between roadways of a divided highway is prohibited, with the exception of emergency vehicles or “when necessary to avoid conflict with other traffic.”

As New Hampshire State Police Lt. Nicole Armaganian told WMUR, the law is designed to keep medians free for emergency situations, and “Stopping for an injured duck or ducklings is not what we would consider to be an emergency.”

Bibeau said she plans to fight the ticket in court (and there are many ways to potentially do that, as our Learn About the Law section explains). But she also told WMUR she’d do the same thing all over again, even if she has to pay the fine.

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Is It Legal to Be High in Public?

The notable side effect of consuming marijuana is getting high (duh), and many Americans wonder whether it’s illegal to simply be high in public.

This is an even more pressing question in states where marijuana possession and use is legal — either for medicinal or recreational purposes — but public use is still heavily restricted.

So is it legal to be high in public? Here’s what you need to know:

Know someone who has been arrested or charged with a crime? Get in touch with a knowledgeable criminal defense attorney in your area today.

Consuming Weed in Public Is Still Illegal

Even in Colorado, where recreational marijuana is currently on sale in state-licensed shops, it is illegal to smoke marijuana in public. The same is true in Washington and just about every other jurisdiction which has allowed the “legal” use of marijuana.

While there may be some slight variations in local laws with regard to whether vaporizers and e-cigarettes count as “smoking”, its generally illegal to smoke up in public.

And you may be surprised to learn that even marijuana-infused edibles are not supposed to be consumed in public. Colorado even warns residents and tourists that “Possession laws are the same for all retail marijuana types, and public consumption is always illegal, regardless of form.”

What If You Get High in Private, but Then Walk Around in Public?

A trickier question arises when a person gets high at home (or in a parked car, cannabis cafe, etc.) and then enters a public place, thus technically being “high in public.”

Public intoxication laws cover intoxication or influence by substances including alcohol and THC, but these laws vary wildly in their interpretation and enforcement.

Most public intoxication laws require a suspect to be breaching the peace, harassing others, or endangering lives or safety in addition to being altered in public. Laws that have tried to criminalize simply being intoxicated and “annoying” have often been struck down as being unconstitutionally vague.

For the purposes of these laws, “public” can mean movie theaters, parks, sidewalks, and malls. Being stoned in these places may be perfectly legal, though, as long as you’re not bothering anyone or endangering yourself or others.

Colorado and Washington State

Coindentally, Colorado and Washington are two the few states which have decriminalized being publicly intoxicated, treating the condition more as a societal issue needing treatment than a crime. These states have even prevented cities and municipalities from passing their own local public intoxication ordinances.

In these states, it seems very likely that it would be legal to be high in public, although you could potentially break other laws while being high.

If you feel like you’ve been arrested simply for being high in public, contact an experienced criminal defense attorney as soon as possible.

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Crime & Punishment – Legal Systems May Only Be Superimposed on Biology

Smart lawyers know that law often does not have that much to do with how juries and judges will make their decisions. They present arguments which, sure, include points of law. But they hammer what they have found to be the deep defaults in the human mind. Perhaps more lawyers should play that hand.

Trial judge Morris Hoffman has given this a lot of thought. Now he has published a book on it. It’s “The Punisher’s Brain: The Evolution of Judge and Jury.” it is reviewed by no less than The Economist.

In “The Punisher’s Brain,” Hoffman contends, reports The Economist:

“People’s view of others’ misdoings have more to do with evolution than abstract legal philosophy … In all their modern complexity, legal systems are a biological solution to a simple problem …”

The problem is that there are rogue human beings who decide to turn their backs on the benefits of being a social animal. Instead they push against the norms. That might be to get what they want. Or if they are pyschopaths they don’t feel any restraint not to.

Unfortunately, Hoffman doesn’t have recommendations on how to deter that aberrant behavior. For much of it, we in 12-step programs observe, punishment does not halt anti-social behavior. It’s the rare addict who gets something out of incarceration. The majority is determined to booze it up and/or score illegal substances after release.

Eventually, app developers might come up with signals from smartphones which can persuade miscreants to choose the social good instead of robbing the convenience store and offing the counter help.


5 More Types of Insurance Your Small Business May Need

As we’ve recently discussed, your business may require various types of insurance to protect it from the unpredictable storms of liability. But as you might imagine, it was impossible to cover all of the many helpful types of business insurance in the same digital breath.

For example, what about employee health insurance? Or insurance for corporate events? We hear you.

Now that we’ve had a breather, here are five more types of insurance your business may need:

Need legal advice on how your small business should operate? Consult with an experienced business attorney about your options.

1. Health Insurance

In 2012, one in four small businesses lacked health insurance, and in 2015 Obamacare’s employer mandate will take effect (probably, barring any more delays). Regardless of the size of your business, you have several options when it comes to obtaining health insurance for your employees in compliance with the Affordable Care Act.

The much-maligned online health insurance exchanges can also be used by small businesses through the Small Business Health Options (SHOP) Marketplace.

And while it’s true that your small business may not be required by law to supply your employees with health insurance, you still may not want the liability that comes with an office full of sick employees.

2. Event Insurance

Your business may already have commercial liability insurance, but it may pay off in the long run to purchase event insurance for your next business retreat or grand opening. The extra coverage for liquor liability and personal injury couldn’t hurt, and if the event is canceled, you’ll be able to get some money back for those non-refundable deposits (e.g., the chocolate fountain that you ordered).

3. Malpractice/Professional Liability Insurance

Professional liability insurance, also known as malpractice or error and omissions insurance, may be required if your business or firm largely employs:

  • Doctors,
  • Lawyers,
  • Dentists,
  • Chiropractors,
  • Accountants,
  • Architects, or
  • Engineers.

This type of insurance protects you from liability from claims that an error or omission that caused a client to suffer physical or financial harm.

4. Disability Insurance

For very small businesses or sole proprietors, disability insurance can be the key to keeping you (and your future business) financially afloat in the event of a short-term or long-term disability. Employers may also consider offering this benefit to employees.

5. Auto Insurance

If your business involves travel or delivery by car, then it might be smart to get some auto liability insurance. Since you’re likely to be held liable for accidents that occur while your employee is driving (even his or her own car) within the scope of his or her employment, you’ll want a policy that covers those potential risks of liability.

Talk to your business attorney about which insurance policies are right for you.

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