#Appeals COurt for the Fourth District

[rodhalliburton]

Federal Court Fails K-5 Children

On May 16, 2024, Breitbart News reported the following: “A federal court on Wednesday upheld a Maryland school district policy that does not allow parents to opt their young K-5 children out of curriculum about gender identity and sexuality. In a 2-1 panel decision released by the U.S. Court of Appeals for the Fourth Circuit, federal judges affirmed a lower court decision denying the request of…

[rjzimmerman]

Excerpt from this story from Inside Climate News:

“This is the last turn and the end of the fourth hill of life, when Bad River, as a spirit, transforms into something other, something extraordinary,” Mike Wiggins said as he rounded a final bend in one of the largest and most pristine wetlands on the shores of Lake Superior, one of the biggest freshwater lakes in the world.

It’s “similar to our spiritual journey off this planet into something other and extraordinary.”

From the driver’s seat of his small fishing boat, Wiggins, the former chairman of the Bad River Band of Lake Superior Chippewa, contemplated his surroundings with awe as a bald eagle soared overhead.

Beds of wild rice, a key food source and cultural pillar of the Bad River tribe, danced in his wake, glinting under the afternoon sun and nearly ready for harvest. 

“This is a power place,” he said as he blasted Unbound, a recently released album by musicians including fellow Bad River tribal member Dylan Jennings. “It’s just no place for an oil pipeline.”

It has one, though. Seventy-one years ago, Lakehead Pipeline, a predecessor to Canadian pipeline company Enbridge, commissioned the construction of Line 5, a 30-inch diameter crude oil pipeline that transports up to 540,000 barrels of hydrocarbons per day from Superior, Wisconsin, to Sarnia, Ontario. The 645-mile line is part of a network that originates more than a thousand miles to the northwest in the oil fields of Alberta and, in the case of Line 5, ends back in Canada. It includes a 12-mile stretch that bisects the Bad River reservation, which is heavily forested with river crossings and large swaths of wetlands.

Any spill from the pipeline would drain into the Bad River and Kakagon Sloughs, where Wiggins fished. Known as the “Everglades of the North,” the area is protected under an international environmental agreement as well as multiple treaties between the U.S. and the Chippewa people, also known as the Ojibwe.

The path through the reservation was originally approved by the U.S. Bureau of Indian Affairs. However, more than a dozen easements granted to the pipeline, which was completed in 1953, have since expired.

In 2017, the Bad River tribal council voted unanimously not to renew them. Two years later, the tribe sued to have the pipeline removed from the reservation. The ongoing “David vs. Goliath” legal battle was chronicled in Bad River, a recent documentary.

In 2023, Judge William Conley of the U.S. District Court for the Western District of Wisconsin ruled in favor of the tribe and gave Enbridge three years to stop pumping oil through the reservation. The pipeline company has appealed the ruling.  

[beardedmrbean]

The Fourth Amendment's protection against unreasonable searches and seizures extends to the length of a seizure, a federal court ruled last week, significantly restricting how long law enforcement can retain private property after an arrest.

"When the government seizes property incident to a lawful arrest, the Fourth Amendment requires that any continued possession of the property must be reasonable," wrote Judge Gregory Katsas of the U.S. Court of Appeals for the District of Columbia in a unanimous ruling.

Most courts of appeal to pass judgment on the issue—namely, the 1st, 2nd, 6th, 7th, and 11th circuits—have held that, once an item is seized, law enforcement can retain the item indefinitely without violating the Fourth Amendment. These precedents have allowed police to retain personal property without clear legal grounds, effectively stripping people of their property rights merely because they were arrested. The D.C. Court of Appeals' ruling complicates this general consensus.

Though law enforcement does not have to return property "instantaneously," Katsas wrote, the Fourth Amendment requires that any "continuing retention of seized property" be reasonable. So while police can use seized items for "legitimate law-enforcement purposes," such as for evidence at trial, and are permitted some delay for "matching a person with his effects," prolonged seizures serving no important function can implicate the Fourth Amendment, the court ruled.

Given that the D.C. court finds itself in the minority on the question, some say that the case may be primed for the Supreme Court if the District chooses to appeal. "This case has potential to make national precedent," Paul Belonick, a professor at the University of California, San Francisco law school, tells Reason. "The influential D.C. Circuit deliberately intensified a circuit split and put itself in the minority of circuits on the question, teeing it up cleanly for certiorari."

The plaintiffs each had their property seized by D.C.'s Metropolitan Police Department (MPD). Five of the plaintiffs were arrested during a Black Lives Matter protest in the Adams Morgan neighborhood of D.C. on August 13, 2020.

As they were arrested, MPD officers seized their phones and other items. Though the protesters did not face any charges and were, in Katsas' words, "quickly released," MPD retained their phones for around a year. Some of the plaintiffs had to wait over 14 months to get their property back.

In the meantime, the plaintiffs say that they were forced to replace their phones and lost access to the important information on the originals, including personal files, contacts, and passwords. "The plaintiffs have alleged that the seizures at issue, though lawful at their inception, later came to unreasonably interfere with their protected possessory interests in their own property," Katsas explained.

"MPD is aware of the ruling and will continue to work with our partners at the United States Attorney's Office to ensure that our members are trained appropriately to ensure compliance with recent rulings," a spokesperson for MPD tells Reason.

"Practically, this case is important because police have been exploiting a gap in the Fourth Amendment," Andrew Ferguson, a professor at American University's Washington College of Law, tells Reason. "In situations where there is a lawful arrest, but no prosecution, there are no clear rules on retaining personal property. In these cases, police have been confiscating phones to punish protestors."

Michael Perloff, the lead attorney for the plaintiffs, agreed that the D.C. Circuit's decision could set an important precedent going forward. "Nationally, we've seen litigants attempt to challenge similar practices only to fail because the court concluded that the Fourth Amendment does not limit the duration of a seizure," he tells Reason. "Moving forward, we are hopeful that the D.C. Circuit's opinion will lead courts to reconsider those rulings and, instead, enforce the Fourth Amendment as fully as the framers intended."

[justinspoliticalcorner]

Chris Geidner at Law Dork:

On Monday, 13 months after President Joe Biden announced that Adeel Mangi would be his nominee for a seat on the U.S. Court of Appeals for the Third Circuit, Mangi issued a searing indictment of a system that has left him as the longest-pending appellate nominee in the nation. “I have battled for justice, even if it meant there would be none for me,“ Mangi wrote in the letter, acknowledging there is “no pathway to confirmation” at this point.

[...] Mangi would have been the nation’s first Muslim American federal appeals court judge, and the attacks against him never stopped. After Republicans questioned him at his confirmation hearing largely with anti-Muslim guilt-by-association attacks, the opposition later expanded to include baseless claims of terrorism and anti-law enforcement connections. Then, three Democrats — Sens. Catherine Cortez Masto and Jacky Rosen of Nevada and Sen. Joe Manchin of West Virginia — announced earlier this year that they would not support Mangi’s nomination. As I wrote at the time, their opposition “is appalling cowardice, and they should be ashamed.” And yet, their opposition stood — and Mangi’s nomination went nowhere, as many others were confirmed.

Then, in the lame-duck session, Senate Majority Leader Chuck Schumer asserted that Mangi’s nomination lacked the votes to succeed — along with three other appeals court nominees — in reaching a deal with Republicans to allow district court nominees to proceed more easily. Of the other appellate nominees, Ryan Park, who was nominated for the Fourth Circuit, has already withdrawn his nomination — prompting the judge he was to replace, Judge James Wynn, to rescind his decision to take senior status upon the confirmation of his successor. The other two include Julia Lipez, nominated for a now-vacant seat on the First Circuit, and Karla Campbell, nominated for the Sixth Circuit seat currently held by Judge Jane Stranch. Like Wynn, Stranch was planning to take senior status upon the confirmation of her successor. Many are watching now to see if she, also like Wynn, rescinds her plans.1

Adeel Mangi got screwed out of being confirmed to a seat on the 3rd Circuit Court due to three craven cowardly Senate Democrats: Joe Manchin and both Nevada Senators (Jacky Rosen and Catherine Cortez-Masto).

Such a move reeked of pandering to Islamophobia, as Mangi would have been the first Muslim to serve on the federal appeals court level.

[lboogie1906]

Judge Judith Ann Wilson Rogers (born July 27, 1939) law clerk, attorney, judge, and corporation counsel, was born in New York City. Her mother is unnamed, but her father was John Louis Wilson, Jr., an architect. She married in 1968.

She received a BA from the Radcliffe College of Harvard University. She was one of 15 women out of 500 students in her graduating class when she received her LLB from Harvard Law School. She became a law clerk at the Juvenile Court of the DC. She worked as an Assistant US Attorney for DC making her the third woman to work in the Criminal Division. She was involved in two legislative reforms that transformed the DC.

She was appointed general counsel to the Congressional Commission on the Organization of the DC. She lobbied for the enactment of the 1973 DC Self-Government and Governmental Reorganization Act which helped the district form a local government to represent residents separate from federal control.

She served as a staff attorney at the San Francisco Neighborhood Legal Assistance Foundation. She then returned to DC, where she served as a trial attorney for the Department of Justice Criminal Division. She served as general counsel for the Congressional Commission on the Organization of the District Government.

She worked as the assistant city administrator for intergovernmental affairs relations in DC. She served as the corporation counsel for DC making her the first woman appointed a chief legal officer for the DC. She was nominated by President Ronald Reagan to become an associate judge on the DC Court of Appeals.

She obtained her LLM from the University of Virginia School of Law. She served as chief judge on the Court of Appeals. She was nominated by President Bill Clinton for a seat on the US Court of Appeals for the DC Circuit. She became the fourth woman and first African American woman to serve on this court.

She has been honored with the Margaret Brent Award for her efforts in diversifying the courthouse and judicial branch along with numerous other prestigious awards. #africanhistory365 #africanexcellence

[mariacallous]

President Biden’s 22 judicial confirmations from January to the April recess are more than any of his predecessors in the comparable period (President Trump had 12). Still, as I speculated in late January, President Biden is unlikely to top Trump’s 231 lower court appointments — second only to President Carter’s 262.

Senate Democrats’ narrow voting majority has confronted some snags, including within-ranks opposition to some candidates and, more prominently, Senator Dianne Feinstein’s possibly extended absence for health reasons, making it almost impossible to move more controversial nominees (however defined) out of the Judiciary Committee. But even if, or when the committee is back to full strength, the administration likely faces a dearth of fillable vacancies, the essential precursor to nominations and confirmations.

Figure 1 and Figure 2 present key metrics for court of appeals and district court confirmations at the Senate’s April recess in recent presidents’ third years. Each president’s first three bars are the numbers of confirmations, pending nominations; and vacancies with no nominees (vacancies in-place and announced).

The fourth and fifth bars show additional nominations and additional confirmations through the end of the fourth year. The first and final bars equal the total four-year confirmation numbers shown with presidents’ names.

Courts of Appeals

Trump’s 37 confirmations by the third-year April recess topped all five presidents. Only Biden’s 31 comes close, reflecting the priorities that those presidents and their Senate allies gave to staffing the appellate courts.

At the recess, Trump’s prospects for 54 total confirmations may have seemed bleak, with only five pending nominees and five more nominee-less vacancies. But eleven more vacancies occurred, and the Senate was able to confirm 17 additional nominees.

Biden also came to the April recess with few pending nominees and nominee-less vacancies, and, to boot, he has six fewer confirmations than Trump. Biden will have 42 confirmations if he gets his six pending nominees confirmed and gets nominees in place and confirmed for the five nominee-less vacancies (not counting the two recent post-recess nominees). Those eleven confirmations are hardly sure things; one nominee has been pending over 460 days and another has provoked within-ranks public opposition.

Forty-two confirmations, even if unlikely, is still 12 short of Trump’s 54 (although way ahead of predecessors). The starting point for 12 more appointments is at least 12 more vacancies. Vacancies occurring between the third-year April recess and the end of the fourth year (not shown on Figure 1) ranged, for Biden’s four immediate predecessors, from seven to 13. For Trump the figure was eleven, nine from retirements, one from death, and one from then-Judge Barrett’s Supreme Court appointment.

It seems unlikely that 12 more vacancies will occur and, if so, Biden can fill them. At the end of January 2023, 16 Democrat-appointed court of appeals judges were eligible to retire, on salary, from active status, but since then, only one has done so (one more becomes eligible this summer, and another Democratic appointee resigned). Key to Biden’s prospects is whether more will retire, perhaps including some of the six who have been eligible for over ten years. (Twenty-four Republican-appointed circuit judges are similarly eligible, but only four have retired since Biden took office, and one was apparently health-related, and another was a Democrat whom George W. Bush appointed in a deal. Other vacancies may occur.)

And a vacancy is not necessarily a filled vacancy. While Trump was able to fill nine of his 11 post-April recess vacancies, for example, Obama, in his first term, could only fill two of his 13.

District Courts

Trump’s district appointment situation at the April recess was the opposite of the circuit nominee picture — the lowest of the five presidents shown, 30 fewer than Biden’s 88.

Yet, Trump had more pending nominees and more nominee-less vacancies than any of the others. He and the Senate (with a stronger Republican majority, 53, up from 51 in 2017-18, and having concentrated on appellate appointments in the first two years) seated a record number of district judges.

To Trump’s 75 pending nominees at April recess, Biden has 30. To Trump’s 84 nominee-less vacancies, Biden has 61. Confirming those 91 current or potential nominees would lift Biden’s four-year total to 179, two over Trump’s, but a 100% confirmation rate would be unprecedented.

Moreover, five of his 30 pending district nominees have been waiting from 456 to 577 days, suggesting insufficient Democratic support for successful floor votes, a situation unlikely to change as the 2024 elections approach. And one of Mississippi’s senators has announced her opposition to a recent nominee there, using the so-called “blue-slip” rule that currently gives home-state senators of either party a virtual veto over nominees.

Indeed, of Biden’s 61 nominee-less vacancies, 40 are in states with one or two Republican senators. Of Biden’s 119 district nominees, only 15 (13%) have been in states with a Republican senator — including four each in Pennsylvania and Ohio.

Biden’s avoiding red and purple state vacancies may be because many Republican senators are threatening blue slip vetoes and perhaps because the administration finds it easier to deal with Democratic senators; median days from vacancy to nomination was 399 for the 15 red and purple state nominees, versus 253 for blue state nominees. (Trump’s 132 pre-April recess district nominations included 60 to vacancies in blue states — 45% compared to Biden’s comparable 13%. And Trump’s blue and purple state nominees also took longer — 446 median days to 229 for red state nominations.).

Biden’s pace may be picking up — five of the 15 red and purple state nominees came since November — but any hope of 177 district appointments will be just that unless large numbers of judges in blue states retire or the pace of red and purple state nominations accelerates rapidly. But that requires Democratic leadership’s ending or modifying the blue slip rule — without provoking Republicans to use the parliamentary tools at their disposal to shut the process down completely.

In sum, Senate Democrats hoped that their one-vote working majority, compared to Biden’s first two years, would give an impetus to their impressive first-two-year confirmation record. Vagaries of life and realities of fillable judicial vacancies have challenged those hopes.

[totoblgf]

North Carolina Federal Appeals Lawyers Offer Expert Representation for Civil and Criminal Appeals Before the Fourth Circuit Court

When dealing with legal issues involving civil or criminal appeals before the Fourth Circuit Court, expert representation is not a luxury but a necessity. Federal appeals are complex, requiring a nuanced understanding of legal precedents, procedural rules, and strategic advocacy. Our North Carolina federal appeals lawyers are equipped with the expertise and experience to provide unparalleled representation for individuals and businesses alike.

Understanding the Fourth Circuit Court of Appeals

The Fourth Circuit Court of Appeals is a federal appellate court that reviews decisions made by district courts within its jurisdiction. This includes cases from North Carolina, South Carolina, Virginia, West Virginia, and Maryland. Known for its rigorous standards, the Fourth Circuit demands precision and comprehensive legal arguments. Successfully appealing a decision or defending a favorable ruling requires in-depth knowledge of federal law and meticulous preparation.

The Role of Federal Appeals Lawyers

Federal appeals lawyers serve as your advocates in navigating the complexities of appellate law. Unlike trial court proceedings, appeals focus on identifying legal errors in the initial trial, whether procedural or substantive. Our team of attorneys specializes in crafting persuasive written briefs and delivering compelling oral arguments to ensure your case is presented in the strongest possible light.

Key Responsibilities of Federal Appeals Lawyers

Analyzing Trial Records: A thorough review of transcripts, evidence, and rulings to identify potential errors.

Legal Research: Comprehensive research to support arguments with precedent and statutory authority.

Drafting Appellate Briefs: Preparing detailed, well-structured briefs that articulate the legal issues and advocate for a specific outcome.

Oral Advocacy: Presenting arguments before the appellate judges with clarity and precision.

Why Choose Our North Carolina Federal Appeals Lawyers?

Expertise in Appellate Law

Our attorneys are seasoned professionals with years of experience handling civil and criminal appeals. We are intimately familiar with the procedural requirements of the Fourth Circuit and stay updated on changes in federal appellate law.

Comprehensive Case Evaluation

We begin each case with an in-depth evaluation, examining every detail of the trial court proceedings to identify errors that may have impacted the outcome. This meticulous approach ensures no stone is left unturned.

Tailored Legal Strategies

Every case is unique, and our lawyers craft personalized strategies tailored to the specific needs and circumstances of your appeal. Whether challenging a wrongful conviction or defending a favorable judgment, we provide representation designed to achieve the best possible outcome.

Proven Track Record of Success

Our firm has a history of success in the Fourth Circuit, with numerous favorable rulings for our clients. Our commitment to excellence and dedication to our clients’ rights set us apart.

Civil Appeals: Protecting Your Interests in Complex Cases

Civil appeals often arise from disputes involving contracts, property, personal injury claims, or administrative decisions. In such cases, our lawyers meticulously analyze the trial court record to uncover legal errors, including:

Misapplication of the law.

Improper admission or exclusion of evidence.

Procedural violations affecting the fairness of the trial.

Our goal is to ensure that justice is served and that your rights are upheld. Whether you are seeking to overturn an unfavorable decision or defend a favorable outcome, our team is here to provide expert guidance.

Criminal Appeals: Fighting for Justice

Criminal appeals are particularly high-stakes, as they often involve matters of personal liberty and justice. Our attorneys are adept at handling cases involving wrongful convictions, sentencing errors, and violations of constitutional rights. Common issues we address in criminal appeals include:

Ineffective assistance of counsel.

Prosecutorial misconduct.

Judicial errors during the trial.

Sentencing discrepancies.

We understand the emotional and legal challenges faced by individuals navigating criminal appeals. Our team works tirelessly to ensure that every client receives fair treatment under the law.

Navigating the Appeals Process

The appeals process in the Fourth Circuit involves several critical stages:

Notice of Appeal: Filing a timely notice of appeal is the first step to initiate the appellate process.

Record on Appeal: Compiling all relevant documents, transcripts, and evidence from the trial court.

Appellate Briefs: Drafting and submitting opening, response, and reply briefs that outline the legal arguments.

Oral Arguments: Presenting the case before a panel of appellate judges, answering their questions, and advocating for the desired outcome.

Ruling: Awaiting the court's decision, which may affirm, reverse, or remand the case for further proceedings.

Our attorneys guide clients through each stage with clarity and professionalism, ensuring they are fully informed and prepared.

Commitment to Excellence and Client Advocacy

At our firm, we pride ourselves on providing top-tier legal representation. Our commitment to excellence is reflected in our meticulous attention to detail, robust legal research, and unwavering dedication to our clients. Whether representing individuals, corporations, or nonprofit organizations, we are steadfast in our pursuit of justice.

Contact Us for Expert Representation

If you are considering an appeal or need expert representation for a pending case before the Fourth Circuit Court, contact our Carolina federal appeals lawyers today. Our team is ready to provide the guidance and advocacy you need to achieve a favorable resolution.

Contact us: 

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Phone us: (888) 233-8895)

[thellawtoknow]

The Concept of Circuit Splits in U.S. Law: Implications and Significance

The Concept of Circuit Splits in U.S. Law: Implications and SignificanceUnderstanding Circuit Splits Causes of Circuit SplitsJudicial Philosophy Regional Diversity Ambiguity in Law Evolving Legal Standards Role of the Supreme Court in Addressing Circuit SplitsMechanism of Supreme Court Intervention Challenges in Addressing Circuit Splits Examples of Circuit Splits Resolved by the Supreme Court The Concept of Circuit Splits in U.S. Law: Implications and Significance In the legal landscape of the United States, a circuit split refers to a situation in which different federal appellate courts (circuits) reach divergent conclusions on the same legal issue. The United States is divided into 13 federal judicial circuits, each overseen by its own Court of Appeals. These courts serve as intermediate appellate courts, addressing appeals from federal district courts within their jurisdictions. While the autonomy of these circuits fosters regional jurisprudential development, it also gives rise to circuit splits, which can have profound implications for the coherence and predictability of federal law.

Understanding Circuit Splits Circuit splits occur when two or more circuit courts issue conflicting decisions on a question of federal law. These divergences often arise in cases involving statutory interpretation, constitutional rights, or federal regulations. For example, one circuit may interpret a statute narrowly, while another may adopt a broader interpretation. Such splits underscore the dynamic nature of legal interpretation and highlight the challenges of applying uniform federal standards across a vast and diverse nation. Causes of Circuit Splits Circuit splits arise from a variety of factors inherent in the federal judicial system. These causes are rooted in the interpretative philosophies of judges, regional disparities, ambiguities in the law, and the fluid nature of legal standards. Below, each of these factors is discussed in detail. Judicial Philosophy Judges often approach legal questions through distinct interpretative frameworks that reflect their understanding of the law’s purpose and scope. These philosophical differences can lead to conflicting rulings among circuits. - Textualism: Textualists prioritize the literal meaning of the statutory or constitutional text. They avoid considering external factors, such as legislative intent or policy outcomes. For example, textualist judges may interpret ambiguous terms in isolation, leading to narrow rulings that differ from those of more context-driven approaches. - Example: In cases involving statutory phrases like "waters of the United States," textualist judges may restrict interpretation to the dictionary meaning of "waters," while others might consider legislative history to include broader ecological concerns. - Originalism: Originalist judges aim to interpret legal texts according to their meaning at the time of enactment. This approach often contrasts sharply with more dynamic methods, particularly in cases involving constitutional rights, such as privacy or free speech in the digital age. - Example: A split could emerge between circuits on whether a new technological development, such as drone surveillance, constitutes an unconstitutional search under the Fourth Amendment. Originalist judges might focus on 18th-century notions of privacy, while others consider evolving societal expectations. - Purposivism: Purposivists emphasize the broader purpose and legislative intent behind a law. Their decisions may differ significantly from those of textualists or originalists when a statute's language is vague. - Example: In employment discrimination cases, purposivist judges might interpret statutes expansively to address systemic issues, creating splits with textualist courts that adhere strictly to the statutory text. The interplay of these judicial philosophies means that the same legal question can be analyzed through profoundly different lenses, often resulting in divergent outcomes across circuits. Regional Diversity The federal circuits are geographically distinct, and their rulings often reflect the unique economic, cultural, and social characteristics of the regions they serve. This diversity can lead to splits in areas where localized concerns strongly influence judicial perspectives. - Economic Factors: Regions with different economic profiles may interpret federal statutes in ways that align with local industries or interests. For instance, a circuit with a significant agricultural economy might approach environmental regulations differently from one with a focus on manufacturing or technology. - Example: Circuits covering rural areas may favor interpretations that prioritize landowners' rights in environmental cases, while urban circuits might emphasize ecological preservation. - Social and Cultural Norms: Social attitudes toward contentious issues like abortion, gun rights, or LGBTQ+ protections vary widely across regions. These differences often manifest in judicial reasoning, with circuits reflecting the dominant values of their jurisdictions. - Example: A circuit in a socially conservative region may interpret the Second Amendment more expansively than one in a liberal region, leading to splits over the scope of gun rights. - Historical Contexts: Historical events and traditions specific to a region can shape how courts view certain legal questions. For instance, circuits with a legacy of civil rights activism might take a broader view of anti-discrimination laws compared to those without such a history. Ambiguity in Law Ambiguous language in statutes, regulations, or constitutional provisions is a significant driver of circuit splits. Such ambiguities arise when lawmakers fail to anticipate future scenarios, use vague terms, or draft laws without adequate precision. - Vague Terminology: Words or phrases with multiple plausible meanings often lead to divergent interpretations. Courts in different circuits may choose interpretations based on textual emphasis, contextual factors, or policy implications. - Example: The term "reasonable accommodation" under the Americans with Disabilities Act (ADA) has been interpreted variably, with some circuits requiring employers to take significant steps, while others impose less stringent obligations. - Complexity of Modern Issues: Many statutes fail to address complex modern realities, such as digital privacy or emerging technologies. Courts are left to fill gaps, resulting in varying decisions. - Example: Circuits have differed on whether emails stored on foreign servers are subject to U.S. warrants under the Stored Communications Act. - Legislative Oversight or Inconsistency: When Congress fails to reconcile conflicting provisions within a statute or neglects to amend outdated laws, courts must navigate these inconsistencies. Different circuits may prioritize different parts of the statute, creating splits. Evolving Legal Standards The law is not static; it evolves alongside societal norms, technological advancements, and shifts in judicial precedent. Circuit splits frequently emerge when courts interpret the law in light of these changes. - Social Norms: As societal attitudes shift, courts may differ in how quickly they incorporate these changes into their interpretations of the law. - Example: Before the Supreme Court's decision in Obergefell v. Hodges (2015), circuits were divided on whether same-sex marriage bans violated the Constitution, reflecting differing regional norms and judicial willingness to embrace evolving standards of equality. - Technological Advancements: Rapid technological progress often outpaces legislative updates, leaving courts to interpret outdated laws in new contexts. - Example: Circuits have split on whether a smartphone's location data constitutes protected information under the Fourth Amendment, as privacy expectations evolve in the digital age. - Precedent and Judicial Activism: As courts revisit old precedents, they may diverge on whether to uphold, modify, or overturn them. Some circuits are more inclined toward judicial activism, while others emphasize judicial restraint. - Example: The doctrine of qualified immunity for law enforcement officers has been applied inconsistently across circuits, with some courts narrowing its scope and others maintaining broad protections. Circuit splits are an inevitable consequence of the decentralized nature of the federal judiciary. Differences in judicial philosophy, regional diversity, ambiguous laws, and evolving legal standards all contribute to these inconsistencies. While such splits can create challenges, they also serve as a valuable mechanism for testing legal principles and fostering robust debate within the judiciary. Ultimately, they underscore the importance of a dynamic and responsive legal system capable of adapting to the complexities of modern society. Implications of Circuit Splits - Legal Uncertainty: Circuit splits create uncertainty for individuals, businesses, and government agencies, as the same legal issue may yield different outcomes depending on the jurisdiction. - Forum Shopping: Litigants may strategically file cases in circuits with favorable precedents, leading to uneven access to justice. - Burden on the Supreme Court: Circuit splits often compel the U.S. Supreme Court to intervene to resolve inconsistencies, adding to its already heavy caseload. - Incremental Development of Law: On the positive side, circuit splits allow for diverse judicial experimentation, which can lead to the development of more robust legal principles when the Supreme Court eventually provides resolution. - Role of the Supreme Court in Addressing Circuit Splits The Supreme Court of the United States serves as the final arbiter of federal law, playing a vital role in resolving circuit splits to ensure uniformity and consistency across the nation. In a federal judiciary divided into 13 circuits, each capable of interpreting the law independently, such inconsistencies are inevitable. The Supreme Court's intervention is crucial to maintaining the principle of equal justice under law, as conflicting interpretations can lead to unequal application of federal law based on geographic location. Mechanism of Supreme Court Intervention - Petitions for Certiorari: When a circuit split occurs, parties affected by the conflicting rulings may petition the Supreme Court for a writ of certiorari, requesting that the Court review the case. Circuit splits are a common and compelling basis for granting certiorari, as they signify a broader need to clarify the law. - Selective Case Review: The Supreme Court exercises discretion in choosing which cases to hear, granting certiorari to a small fraction of the thousands of petitions it receives annually. Typically, the Court selects cases involving significant legal questions, particularly those with widespread impact or where uniformity in federal law is imperative. - Resolution and Precedent Setting: When the Supreme Court resolves a circuit split, its decision establishes binding precedent for all lower federal courts. This ensures that the interpretation of federal law is consistent nationwide, eliminating disparities that could otherwise undermine the rule of law. - Refinement of Legal Doctrine: By addressing circuit splits, the Supreme Court refines and clarifies legal doctrines, often providing definitive interpretations of ambiguous statutes or constitutional provisions. This process contributes to the stability and predictability of the legal system. Challenges in Addressing Circuit Splits - Limited Caseload Capacity: The Supreme Court hears only about 70–80 cases per term, a fraction of the petitions filed. Consequently, some circuit splits may persist for years before the Court addresses them, leaving lower courts and litigants to navigate inconsistent legal landscapes. - Balancing Judicial Priorities: The Court must prioritize cases with the most significant legal or societal implications, often leaving less prominent but equally problematic circuit splits unresolved. - Potential for Judicial Activism: The Court's resolution of circuit splits can sometimes reflect broader judicial philosophies, raising concerns about judicial activism or perceived overreach in politically sensitive areas. Examples of Circuit Splits Resolved by the Supreme Court A prominent example of the Supreme Court's role in resolving circuit splits involves Title VII of the Civil Rights Act of 1964 and workplace discrimination based on sexual orientation and gender identity. - Title VII and Workplace Discrimination: Title VII prohibits employment discrimination "because of... sex." However, the scope of "sex" was debated in federal courts for decades. - The Split: Some circuits, such as the Second and Seventh Circuits, interpreted Title VII as encompassing discrimination based on sexual orientation and gender identity. These courts reasoned that such discrimination inherently involved sex-based considerations. Conversely, other circuits, such as the Eleventh Circuit, held a narrower view, excluding sexual orientation and gender identity from Title VII’s protections. - The Supreme Court’s Intervention – Bostock v. Clayton County (2020): In Bostock, the Supreme Court resolved the circuit split by holding that Title VII's prohibition on sex discrimination does indeed cover discrimination based on sexual orientation and gender identity. Writing for the majority, Justice Neil Gorsuch applied a textualist approach, reasoning that an employer who discriminates against an individual for being gay or transgender inherently considers the individual's sex in doing so. - Impact: This landmark decision provided nationwide clarity and uniformity, ensuring that LGBTQ+ individuals are protected under federal employment discrimination law. It also underscored the Supreme Court's essential role in addressing and resolving deeply divisive legal questions. The Supreme Court's role in resolving circuit splits is fundamental to preserving the integrity of the U.S. legal system. By providing definitive interpretations of federal law, the Court eliminates disparities across circuits, fosters predictability, and strengthens the rule of law. While its selective approach to granting certiorari leaves some splits unresolved, the Court's decisions on pivotal issues, such as those in Bostock v. Clayton County, demonstrate its indispensable function in harmonizing federal jurisprudence. Examples of Circuit Splits One prominent example is the disagreement over the interpretation of Title VII of the Civil Rights Act of 1964 concerning workplace discrimination based on sexual orientation and gender identity. Before the Supreme Court's 2020 decision in Bostock v. Clayton County, some circuits held that Title VII's prohibition of sex discrimination encompassed these protections, while others did not. The Supreme Court's ruling resolved this split, providing nationwide clarity. Potential Solutions To mitigate the effects of circuit splits, several approaches can be considered: - Legislative Action: Congress can amend ambiguous statutes to provide clear guidance, preempting divergent interpretations. - Judicial Collaboration: Greater inter-circuit dialogue and consistency in adopting precedent could reduce the likelihood of splits. - Enhanced Role for Specialized Courts: Expanding the jurisdiction of specialized federal courts, such as the Federal Circuit, could help unify certain areas of law. Conclusion Circuit splits are an inherent feature of the decentralized federal judicial system in the United States. While they pose challenges to legal uniformity and predictability, they also serve as a mechanism for testing and refining legal doctrines. By fostering diverse judicial perspectives, circuit splits contribute to the richness of American jurisprudence. However, their resolution requires careful intervention by Congress, the Supreme Court, and the judiciary at large to ensure that federal law remains cohesive and accessible. As the legal system continues to evolve, the management of circuit splits will remain a crucial aspect of maintaining justice and equality under the law. Read the full article

[dankusner]

Defense lawyers think criminal case against Pete Arredondo is a dud

After a teenage gunman slaughtered 19 students and two teachers at Robb Elementary School in Uvalde, the victims’ relatives, elected officials and others demanded accountability.

The reason was obvious:

Responding officers from two dozen law enforcement agencies waited 77 minutes before storming the classroom and killing the shooter.

In June, a Uvalde County grand jury indicted Pedro “Pete” Arredondo, the school district police chief at the time of the massacre, and a former school police officer.

The charge:

endangering or abandoning children.

They are the only people to face criminal charges in the tragedy.

Now, the case is progressing toward a possible trial.

The next hearing is scheduled for Thursday in Uvalde.

But lawyers who have studied the indictments say the case is fatally flawed.

They say the child abandonment and endangerment law doesn’t apply to a mass shooting and that the indictment ignores U.S. Supreme Court rulings that broadly protect police from liability for decisions made in the heat of the moment.

“To criminalize behavior that’s based on a judgment call — however unpopular it is — it’s going to be hard to obtain convictions,” said Jorge Aristotelidis, a longtime criminal defense attorney in San Antonio who is now a public defender in Houston.

“People want heads on a platter. This is what the DA’s doing, in my view.”

“They reaching. They're really, really reaching,” said Mario Del Prado, who has practiced law for 36 years as a defense attorney and prosecutor in San Antonio.

“I mean, the elephant in the room is you had (hundreds of) cops out there. And we’re only going after the two school cops? That stinks to high heaven.”

Defense attorney Raymond Fuchs, a practitioner for 47 years, including nine as a prosecutor in Bexar and Harris counties, called the charges “a real stretch.

“If you don’t go in and do something in the military, you can be court-martialed for desertion,” Fuchs said.

“These peace officers are not in the military.”

Fuchs, Del Prado and Aristotelidis were among five defense attorneys who discussed the case with the Express-News after reviewing the indictments and related legal documents at the paper’s request.

Three of the five have served as prosecutors.

None is involved in the Uvalde case.

Most of them said that even if a jury found the defendants guilty, the verdicts would very likely be overturned on appeal.

“I do not know why the case will be prosecuted,” said Ben Sifuentes Jr., a San Antonio attorney who has defended police officers and other public employees in criminal cases.

Christina Mitchell, district attorney for Uvalde and Real counties, bristled at the criticism and said political pressure or public rancor stemming from the shooting played no role in her decision to pursue indictments.

“I do not make prosecutorial decisions based on anything other than the facts of any given situation and the laws as they exist in the state of Texas and how the laws apply to those particular set of facts,” Mitchell said in an email.

She’s a Boerne native who has practiced law for almost 30 years.

“Unfortunately, many individuals have used the mass shooting in the Uvalde community for their own personal gain and to make a name for themselves. I, personally, would never comment on a pending criminal case on which I did not have an intimate knowledge of all the facts,” Mitchell said.

She declined to comment on the substance of the indictments.

'Egregiously poor decision making'

The Robb Elementary shooting was the deadliest in Texas history.

It happened on the morning of May 24, 2022, three days before the start of summer break.

The shooter was armed with an AR-15-style rifle he had purchased legally on the internet a week earlier, on his 18th birthday.

At 11:33 a.m. that morning, he walked into the school through an unlocked rear door, entered two interconnected classrooms filled with fourth graders and fired more than 100 rounds in 2½ minutes.

Nearly all of the victims are believed to have been killed or mortally wounded in that initial fusillade.

A team of Uvalde Police Department officers was at the scene within three minutes, and they approached the classrooms with guns drawn.

The attacker fired at them through a steel door, and the officers retreated.

Two were lightly injured by shrapnel.

They began calling for reinforcements and for rifle-rated ballistic shields so they could enter the classrooms and confront the gunman without being killed first.

Arredondo was the de facto incident commander.

Although police doctrine calls for officers to confront an active shooter immediately, even at risk to their own lives, he held off on ordering officers into the classrooms.

He wanted to evacuate the rest of the building first, which proved to be a lengthy process.

He later told investigators his aim was to avoid further injuries or loss of life from an exchange of gunfire with the attacker.

As officers from the Texas Department of Public Safety, the Border Patrol and other agencies rushed to the school, the police response descended into chaos.

Communications were fragmented, and the assembled officers — at least 380 from 22 agencies — were unsure who was in charge or what they were supposed to do, official reviews found.

At least 380 officers from two dozen local, state and federal agencies responded to the Robb Elementary School shooting.

Seventy-seven minutes elapsed before a column of Border Patrol agents and sheriff's deputies stormed a classroom and killed the shooter.

At least 380 officers from two dozen local, state and federal agencies responded to the Robb Elementary School shooting.

Seventy-seven minutes elapsed before a column of Border Patrol agents and sheriff's deputies stormed a classroom and killed the shooter.

Finally, at 12:48 p.m., four Border Patrol agents and two local sheriff’s deputies formed a “stack” and breached the classrooms.

One of them shot the gunman dead at 12:50 p.m., 77 minutes after he began his rampage.

Investigations by the Texas House and the Department of Justice depicted the police response as a fiasco.

The Texas House report criticized Arredondo and others for what it called “egregiously poor decision making.”

The Uvalde school district fired Arredondo 3½ months after the tragedy.

Mitchell convened a grand jury in January of this year, and it handed down indictments against Arredondo and former school police officer Adrian Gonzales six months later.

The indictment against Arredondo, 52, says he “intentionally, knowingly, recklessly and with criminal negligence” placed in danger 10 named survivors who were held at gunpoint by the shooter.

Arredondo faces 10 counts of child abandonment or endangerment, one for each of those children.

Gonzales, 51, was one of the first officers at the scene, and he helped to evacuate children from other parts of the building.

Little else is publicly known about his actions that day.

He is charged with 29 counts of abandoning or endangering a child — one for each of the 19 children killed and one for each of 10 survivors.

Mitchell has not explained why he faces more counts than Arredondo.

Child abandonment or endangerment is a state jail felony, the lowest level felony in the Texas Penal Code.

If convicted, Arredondo and Gonzales could be sentenced to up to two years in jail each.

The lawyers who reviewed the indictments for the Express-News questioned why, of the many law enforcement officers at the scene, Mitchell pursued charges against only two.

Mitchell has offered no public explanation for that decision.

“If you do it to one (police officer), you’ve got to do it to all of them,” said Charles Bunk, who has been practicing law in San Antonio for more than 30 years, including 15 as a prosecutor.

“I can’t imagine these are the only two guys that made a bad choice that day.”

'Split-second decision'

A fundamental problem with the indictments, the defense lawyers said, is that courts have held police officers don’t have a legal duty to protect people not in their custody from harm caused by a third party.

“There’s a big difference between a legal obligation and a moral or ethical obligation,” Fuchs said.

He said there was no question that officers from various agencies who responded to Robb Elementary “failed in their moral and ethical obligation. But the famous motto that’s on police cars — ‘Protect and Serve’ — it doesn’t say, ‘Defend you to my death.’”

In a 2005 case called Castle Rock v. Gonzales, the U.S. Supreme Court ruled against a grieving Colorado mother who claimed that police violated her right to due process when they failed to enforce a restraining order against her estranged husband after he abducted the couple’s three daughters, ages 7, 9 and 10.

Police told her to wait and see if he brought the girls back.

He shot and killed all three of them.

In a 7-2 ruling, the court held that police have broad discretion in enforcing restraining orders, and that the mother was not entitled under Colorado law to mandatory action by the police.

In a 1989 case, the court rejected an appeal from a boy who claimed child welfare officials in Wisconsin had violated his constitutional rights by failing to protect him from his abusive father.

“While the state may have been aware of the dangers that (the child) faced in the free world, it played no part in their creation, nor did it do anything to render him any more vulnerable to them,” the court held in a 6-3 vote in DeShaney v. Winnebago County Department of Social Services.

“Under these circumstances, the state had no constitutional duty to protect … Remember once again that the harm was inflicted not by the state of Wisconsin, but by (the boy’s) father.”

Arredondo’s lawyers have made the same argument in asking a judge to toss the indictment against their client:

The Uvalde shooter is solely to blame for the loss of life, they wrote.

Mitchell’s office has opposed the motion.

Senior State District Judge Sid Harle, who is presiding over the case, will rule on the matter.

One defense lawyer said he expects Arredondo’s and Gonzales’ attorneys to invoke the 1989 U.S. Supreme Court ruling in Graham v. Connor.

In that case, the court held that police officers’ decisions on use of force “must be judged from the perspective of a reasonable officer on the scene.”

The ruling noted “that police officers are often forced to make split-second decisions about the amount of force necessary in a particular situation.”

The Robb Elementary massacre was the deadliest school shooting in Texas history.

Nineteen fourth graders and two teachers were killed.

'Imminent danger'

The Uvalde indictments are believed to be the first in Texas to use the state’s child abandonment or endangerment law to prosecute police for line-of-duty conduct.

But it has happened in Florida, and the result was the opposite of what Mitchell must be hoping for.

Scot Peterson, then a Broward County sheriff’s deputy, was on duty at Marjory Douglas Stoneman High School in Parkland, Fla., when a gunman killed 17 people in February 2018.

During the shooter's six-minute rampage, Peterson took cover at a nearby building for 40 minutes even as other law enforcement officers rushed into the school.

He was charged with felony child neglect and misdemeanor culpable negligence.

A jury acquitted him of all charges.

Students filed a civil lawsuit against Peterson and other defendants.

In that case, a federal judge ruled that Peterson and law enforcement officials had no constitutional duty to protect the students from the shooter.

A federal appeals court upheld the ruling.

Texas’ child endangerment law makes it a crime to knowingly and intentionally place a child “in imminent danger of death, bodily injury, or physical or mental impairment.”

The law also forbids abandoning a child “under circumstances that expose the child to an unreasonable risk of harm.”

The law typically is used to prosecute parents and caregivers who leave a child alone and unsupervised at home or in a car, or when drugs they used are detected in a child’s system.

Defense lawyers said they strained to understand how the law could apply to the Robb Elementary massacre.

It “certainly was never intended” as the basis to prosecute police officers responding to a mass shooting, Del Prado said.

Arredondo and Gonzales did not cause the children to be at Robb Elementary that day or to remain there, Sifuentes said.

“One must wonder how far back in the speculative chain of causation can the state go to hold a person responsible,” he said.

“For example, could teachers and school administrators be criminally responsible for failing to prevent the shooter from coming on campus?”

Defense lawyers said they expect attorneys for Arredondo and Gonzales will try to have the trial moved out of Uvalde.

It would be next to impossible for the two to receive a fair trial in the same community where the massacre occurred, the lawyers said.

If the case were tried in Uvalde, “everybody who’s on the jury, most people in town are going to know who they are,” Fuchs said.

Pete Arredondo will appear in court on Dec. 19, his attorney told the Leader-News last week.

Attorneys representing Adrian Gonzales did not respond to calls seeking whether the fellow former Uvalde school police officer will also appear.

Both defendants are scheduled for a joint pre-trial hearing at 10 a.m. at the Uvalde County Justice Center and Jail.

The hearing will be the second in a handful of pre-trial conferences in the officers’ criminal cases related to the 2022 Robb Elementary shooting.

The Uvalde County Sheriff’s Office told the Leader-News on Dec. 11 that it will finalize hearing details this week. UCSO suggested that people wanting to attend the hearing, which will likely have a 40-person capacity, arrive early.

Both men in July, Arredondo via document submission and Gonzales in person, pleaded not guilty to criminal child endangerment and abandonment charges for their responses to the shooting that resulted in the deaths of 19 fourth graders and two teachers.

Arredondo faces 10 counts of child endangerment and abandonment on behalf of the injured and surviving children in classroom 112; Gonzales faces 29 – 10 for the survivors and one for each of the 19 deceased children.

Arredondo and Gonzales are so far the lone two indicted among the 376 officers that participated in the failed, 77-minute law enforcement response.

Paul Looney, representing former Uvalde Consolidated Independent School District Police Chief Pedro “Pete” Arredondo, confirmed his client will be in court.

Nico LaHood, representing former school cop Adrian Gonzales, did not return Leader-News calls.

The two men last appeared in court during their first hearing on Sept. 16. Attorneys discussed their collective struggle to obtain evidence from U.S. Customs and Border Protection and visiting Judge Sid Harle did not rule on a motion to quash Arredondo’s indictment.

During the Sept. 16 hearing, the county set its gallery capacity in the small courtroom to 40 people, including family members of the defendants and of victims and survivors and media.

People that wanted to attend were permitted to enter an hour and a half before the hearing began.

[bllsbailey]

Georgia Appeals Court Order Makes Fulton County Trump Verdict Nearly Impossible Before Election Day

(L) Republican presidential candidate, former U.S. President Donald Trump and Former first lady Melania Trump on stage and the conclusion of the fourth day of the Republican National Convention at the Fiserv Forum on July 18, 2024 in Milwaukee, Wisconsin. (Photo by Win McNamee/Getty Images) / (R) Fulton County District Attorney Fani Willis arrives for the final arguments in her disqualification hearing at the Fulton County Courthouse on March 1, 2024, in Atlanta, Georgia.

A decision in the Fulton County election meddling lawsuit against former President Donald Trump prior to election day is all but impossible, due to an order issued late on Tuesday afternoon by the Georgia Court of Appeals.

The order, shared by the lead counsel for former President Trump, approved petitions for oral arguments in an ongoing appeal by eight defendants in the case, including the former president, to have Fulton County District Attorney Fani Willis removed from the case.

Most notably, those oral arguments were scheduled by the appeals court for December 5th, over a month after the presidential election.

Trial proceedings are halted until the Court of Appeals reaches a ruling.

During oral arguments, the appeal court will take up the co-defendants’ appeal of Fulton County Superior Court Judge Scott McAfee’s March decision, which resulted in the removal of special prosecutor Nathan Wade from the election interference case but left D.A. Willis in place.

The co-defendants contend that McAfee’s decision was insufficient and that Willis’s disqualification and the dismissal of the charges should have resulted from it. They also argue that an unlawful conflict of interest resulted from Willis and Wade’s romantic relationship.

However, according to McAfee, there was no conflict of interest arising from the circumstances under Georgia law. He continued, saying that the facts gave the prosecution team an “appearance of impropriety” that “infected” them.

Wade later chose to step down, which gave Willis permission to proceed with the case after the judge’s ultimatum declared that she must recuse herself from the case or remove the special prosecutor.

Stay informed! Receive breaking news blasts directly to your inbox for free. Subscribe here. https://www.oann.com/alerts

[judgejamesshapiro]

Should Minors be Cross-Examined in Sexual Abuse Cases?

The question of whether minors should be subjected to cross-examination in sexual abuse cases is a complex and sensitive one. On one hand, it is crucial to ensure that victims of sexual abuse receive justice and that the perpetrators are held accountable for their actions. Cross-examination can play a significant role in establishing the truth and uncovering any inconsistencies in the victim's testimony. As Dean Wigmore said, “Cross-examination is the greatest legal engine ever invented for the discovery of truth.” However, it is equally important to consider the potential harm that cross-examination can cause to minors, especially considering the trauma, emotions, and potential post-traumatic stress disorder (PTSD) that they may have experienced as a result of the abuse.

In In re Marriage of Doe, 2024 IL App (1st) 230935, the First District of the Illinois Appellate Court struggled with this very issue.

Joan and John Doe married in 2008 and had four children together. In early 2020, Joan filed for divorce; by December 2020, the divorce was finalized, and an agreed parenting plan was entered.

Around March 2021, C.T., who was 16 at the time, outcried that her father had sexually abused her, with the abuse starting in fourth grade. In July 2021, Joan filed a petition for an Emergency Order of Protection (EOP) against John, alleging several instances of John sexually abusing C.T. The EOP was granted, protecting C.T. and her three siblings, and denying John all parenting time. The trial court conducted an in-camera interview of C.T.

without any cross examination. In May 2023, the court issued a Plenary Order of Protection (POP) and denied his parenting time with the minor children until further order of the court.

One of the arguments John made on appeal.

was that the trial court’s decision to bar cross-examination of C.T. violated his due process rights. He further argued the trial court erred by conducting an in-camera with C.T. because the IDVA and the rules of civil procedure do not allow it, and the IMDMA does not apply OP petitions.

The appellate court agreed with John, holding the trial court erroneously reasoned it had authority, pursuant to 750 ILCS 5/604.10(a), to conduct an in-camera of C.T. An in-camera allows the court to learn a child’s preferences about their parents absent the pressures of open court.

Here, the trial court conducted an in-camera of C.T. to hear C.T.’s allegations of sexual abuse, therefore exceeding the scope of 604.10(a). Next, to determine whether a procedure comports with due process, a court must consider and balance (1) the private interests affected, (2) the risk of an erroneous deprivation of that interest through the procedures used, and the probative value of any additional safeguards, and (3) the governmental interest.

Here, the private interest affected is John’s right to parent his children. The governmental interest is preserving and promoting the welfare of C.T. The appellate court held barring cross-examination of C.T. created a risk of John’s right to parent being erroneously deprived, and that risk outweighed the government’s interest in protecting C.T. because there were reasonable alternatives available to protect C.T. Therefore, the trial court’s decision to bar any cross-examination of C.T. violated John’s due process rights.

Joan argued the bar of cross-examination was a harmless error because John was allowed to submit 20 questions for the in-camera. The appellate court staunchly disagreed with this argument, holding that barring cross-examination created a substantial danger of prejudice because it denied John’s right to test the truth of C.T.’s testimony, and an error cannot be a harmless error if it “affected the outcome of the trial.”

Lastly, the appellate court found the comments made by the trial court both during and after the in-camera of C.T. suggests the trial court had already decided John sexually abused C.T. even before John testified, which is the “antithesis of a fair trial.” For these reasons, the circuit court is affirmed in part, reversed in part, and remanded the case for a new evidentiary hearing.

The dissent argued there is no violation of John’s due process rights by the trial court, and that John’s argument implicated the sixth amendment, which does not apply to civil cases. The 2-1 split decision illustrates the difficult tension between the due process right to cross examine in civil cases and the desire to avoid retraumatizing a possible victim of sexual assault by having her relive the experience on cross.

Parents and legal guardians play a vital role in protecting minors and ensuring their well-being. When a child is subjected to cross-examination in a sexual abuse case, it can be an extremely distressing experience for both the child and their parents. The emotional toll of recounting traumatic experiences in a courtroom setting can be overwhelming, potentially exacerbating the trauma already suffered by the child. Parents may also feel helpless and powerless as they watch their child being subjected to questioning by the opposing attorney, which can further add to their emotional distress.

Moreover, cross-examination can have long-lasting effects on minors, particularly those who have experienced sexual abuse. Children who have been sexually abused often suffer from psychological trauma, which can manifest in various ways, including anxiety, depression, and PTSD. The process of cross-examination can trigger these traumatic memories and emotions, potentially retraumatizing the child. This can have significant implications for the child's mental health and well-being, potentially hindering their ability to recover from the abuse and move forward with their lives.

The role of attorneys and judges in sexual abuse cases is crucial in ensuring a fair trial and protecting the rights of all parties involved. Attorneys must be diligent in their approach to cross-examining minors, taking into account the potential harm it may cause. It is essential for attorneys to exercise sensitivity and empathy when questioning child victims, ensuring that they are not retraumatized or subjected to unnecessary distress. Judges also play a critical role in safeguarding the interests of minors during cross-examination. They must carefully consider the potential harm that cross-examination can cause to child victims and take appropriate measures to mitigate this harm, such as limiting the scope of questioning or allowing for closed-door testimonies.

In conclusion, while cross-examination plays an important role in establishing the truth in sexual abuse cases, it is crucial to consider the potential harm it may cause to minors who have already experienced trauma. The emotional toll of recounting traumatic experiences in a courtroom setting can be overwhelming for children, potentially exacerbating their trauma and hindering their recovery. Attorneys and judges must exercise sensitivity and empathy when questioning child victims, ensuring that their rights are protected while minimizing further harm. It is essential to strike a balance between obtaining justice for victims and safeguarding the well-being of minors involved in these cases.

[pashterlengkap]

These 11 LGBTQ federal judges are making history – and are all appointed by Joe Biden

President Joe Biden announced that his 200th federal judge got confirmed earlier this week, beating both Presidents Donald Trump and President Barack Obama in the number of confirmations at similar points in their terms. In a statement, Biden celebrated the most diverse group of judges to be appointed. “These judges are exceptionally well-qualified. They come from every walk of life, and collectively, they form the most diverse group of judicial appointees ever put forward by a president – 64% are women and 62% are people of color,” said Biden. “Before their appointment to the bench, they worked in every field of law—from labor lawyers fighting for working people to civil rights lawyers fighting to protect the right to vote.” Included among these judges are 11 LGBTQ+ judges, the most put forward by a sitting U.S. president, tied with Obama. Here are all of Biden’s LGBTQ+ judicial appointees. Stay connected to your community Connect with the issues and events that impact your community at home and beyond by subscribing to our newsletter. Subscribe to our Newsletter today Beth Robinson – U.S. Court of Appeals for the 2nd Circuit Beth Robinson is the first openly lesbian woman to serve on a U.S. appeals court, being confirmed on November 1, 2021. She was previously the first out LGBTQ+ Vermont Supreme Court justice. Robinson also served as co-counsel in the famous Baker v. Vermont case, which granted equal rights to LGBTQ+ couples. Alison Nathan – U.S. Court of Appeals for the 2nd Circuit Alison Nathan was confirmed on March 23, 2022 and is the second openly LGBTQ+ woman to serve on the U.S. appeal court. She gained national attention for presiding over the prosecution of Ghislaine Maxwell. Nicole Berner – U.S. Court of Appeals for the 4th Circuit Lisa McFarland, Fourth Circuit court photographer Judge Nicole G. Berner Nicole Berner is the first openly lesbian judge to serve on the Fourth Circuit, which covers Maryland, North Carolina, South Carolina, and West Virginia. She was confirmed on March 19, 2024. She previously served as legal counsel for the Service Employees International Union, supporting many progressive policies. Ana C. Reyes – United States District Court for the District of Columbia Ana Reyes is the first LGBTQ+ woman and the first Latina to serve in the U.S. District Court for Washington, D.C. She was confirmed on February 15, 2023, and worked previously at the firm Williams and Connolly, often working pro bono for refugees and asylum seekers. Daniel Calabretta – United States District Court for the Eastern District of California Daniel Calabretta was confirmed on February 16, 2023, and is the first openly gay judge to preside over California’s Eastern District. He previously served on the California Superior Court and as a presiding judge on the Juvenile Court. He’s also served under the California governor as deputy legal affairs secretary. Gina R. Méndez-Miró – United States District Court for the District of Puerto Rico Gina R. Méndez-Miró is the first LGBTQ+ judge to preside over Puerto Rico’s District Court. She was confirmed on February 14, 2023, and was Biden’s 100th judge to be confirmed. She previously served as chief of staff to the Puerto Rico Senate and on the Puerto Rico Court of Appeals. Charlotte Sweeney – United States District Court for the District of Colorado Charlotte Sweeney is the first lesbian judge to preside over a District Court in Colorado and the first one west of the Mississippi. She was confirmed on May 25, 2022, and previously worked as a partner at Sweeney & Bechtold. She’s a member of the Colorado LGBT Bar Association and is on the board of directors for the Matthew Shepard Foundation. Nina Morrison – United States District Court for the Eastern District of New York Nina Morrison is the second openly LGBTQ+ judge to serve in the Eastern District of New York. She was confirmed on June 8, 2022.… http://dlvr.it/T7RFhL

[beardedmrbean]

Diane Rwigara, an outspoken critic of Rwandan President Kagame, has been barred from standing in next month’s presidential election.

Only Mr Kagame and two other politicians - Frank Habineza of the Democratic Green Party and independent Philippe Mpayimana - were cleared by the electoral body.

Ms Rwigara, who was also disqualified from the 2017 poll, took to X, formerly Twitter, to express her disappointment to Mr Kagame.

“Why won't you let me run? This is the second time you [have] cheat[ed] me out of my right to campaign,” she said.

The 42-year-old, who is the leader of the People Salvation Movement (PSM), had earlier told the BBC’s Newsday programme that she had hoped to be a able to stand this time round.

"I'm representing the vast majority of Rwandans who live in fear and are not allowed to be free in their own country,” she said.

��Rwanda is portrayed as a country where the economy has been growing. But on the ground, it's different. People do lack the basics of life, food, water, shelter."

But on issuing its provisional list of candidates, the electoral commission said Ms Rwigara had failed to provide the correct documentation to show she had no criminal record.

It also said she had failed to show she had enough support nationwide to stand.

"On the requirement for 600 signature endorsements, she did not provide at least 12 signatures from eight districts," Oda Gasinzigwa, the electoral commission chief, was quoted as saying.

Another reason the commission gave was that Ms Rwigara had failed to prove she was Rwandan by birth. She once held Belgian citizenship but surrendered that in 2017 before her last bid to become a candidate.

But Ms Rwigara has told the BBC that she was born in Rwanda and dismissed all the other grounds for the rejection of her candidacy.

A total of nine applications to stand for president were received by Rwanda's National Electoral Commission. Their final list will be announced next Friday as it still considering appeals lodged earlier in the process – though at this stage it is too late for the PSM leader to appeal.

In 2017 she was barred following accusations of forging the signatures of supporters for her application.

Ms Rwigara was imprisoned for more than a year but acquitted in 2018 over charges of inciting insurrection and forgery. She said the charges were politically motivated.

In March, a Rwandan court blocked efforts by prominent opposition figure Victoire Ingabire to lift a ban on her running in the presidential election.

She was freed in 2018 after spending eight years in prison for threatening state security and "belittling" the 1994 genocide.

In Rwanda, people who have been jailed for more than six months are barred from running in elections.

The two cleared candidates - Mr Habineza and Mr Mpayimana - were also the only candidates approved to stand against Mr Kagame in the 2017 election.

Mr Kagame is running for a fourth term, which could extend his presidency to nearly three decades should he win.

He won the last presidential election in 2017 with nearly 99% of the vote.

The 66-year-old president has faced criticism from rights groups for cracking down on the opposition.

But he has always fiercely defended Rwanda's record on human rights, saying his country respects political freedoms.

[justinspoliticalcorner]

Chris Geidner at Law Dork:

A little past 7 p.m. Friday, the U.S. Senate confirmed Serena Raquel Murillo to a district court judgeship for the Central District of California. With the 49-47 vote, Murillo became the 235th lifetime-tenure judge nominated by President Biden and confirmed by the Senate. The count is one more than Donald Trump got confirmed in his first term in office. Earlier Friday, the Senate also confirmed Benjamin Cheeks to a seat on the Southern District of California. “One out of every four active judges on the bench” was nominated by Biden and confirmed by this Senate, Majority Leader Chuck Schumer said in a press conference after hitting that mark. In all, the Senate confirmed 22 judges in the lame-duck session — and 14 since Thanksgiving.

With Friday’s four votes done, the Senate is likely finished confirming Article III judges for the year — and for the Biden administration. There are only three remaining nominees pending on the floor — three of the four appellate nominees who Majority Leader Chuck Schumer has said lacked the votes to be confirmed. As such, Schumer agreed to a deal in which he wouldn’t put those up for a vote — again, that he has said they would lose — in exchange for Republicans not forcing extra votes on every nominee that did get through. In addition to Adeel Mangi, who spoke out via letter this week about his stalled nomination to the Third Circuit, Julia Lipez’s nomination to the First Circuit is not expected to get a vote. It should be noted, however, that all five active judges on the First Circuit currently are Democratic nominees. Finally, Karla Campbell’s nomination to the Sixth Circuit is not expected to get a vote. Unlike Mangi and Lipez, though, Campbell would be replacing a judge still in active status. Judge Jane Stranch, who announced that she would be taking senior status upon the confirmation of her successor, could withdraw her plans if Campbell does not get confirmed. (Judge James Wynn, on the Fourth Circuit, already did so when Park Park withdrew his nomination because it was not going to get a vote.) Additionally, Judge Kent Jordan is retiring from the Third Circuit in January. In all, then, there will only be three or four appeals court vacancies, depending on whether Stranch withdraws her plans, when Trump takes office in January. Additionally, there are 32 current district court vacancies, as of Friday, and another nine district court judges who have announced they will be retiring or taking senior status in the future, on a date certain or upon the confirmation of their successor. If you haven’t followed judicial nominations for a while, this might seem like a lot and — to be sure — it is. But to have lowered that number in any real way, there was basically only one thing that they could have done but did not do: Get rid of blue slips. Continued adherence to the blue slip rule, which allows home-state senators to stop district court nominees from proceeding, explains nearly all of the vacancies that will be awaiting Trump. All but two of the district court nominees are in states with at least one Republican senator, and the vast majority are in states with two Republican senators.

President Biden got one more judicial nominee confirmed than Donald Trump did in his one term.

See Also:

The Guardian: Biden beats Trump’s record of judicial confirmations with 235th appointee

[lboogie1906]

Troy Anthony Davis (October 9, 1968 – September 21, 2011) was a man convicted of and executed for the August 19, 1989 murder of police officer Mark MacPhail. During his 1991 trial, seven witnesses testified they had seen him shoot MacPhail, and two others testified he had confessed the murder to them. 34 witnesses testified for the prosecution and six for the defense. The murder weapon was not recovered, and ballistic evidence presented at trial linked bullets recovered at or near the scene to those at another shooting in which he was charged. He was convicted of murder and various lesser charges and was sentenced to death in August 1991.

He maintained his innocence up to his death. He and his defenders secured support from the public, celebrities, and human rights groups. Amnesty International and other groups such as the NAACP took up his cause. Prominent politicians and leaders called upon the courts to grant him a new trial or evidentiary hearing.

In 2009, the SCOTUS ordered the District Court for the Southern District of Georgia to consider whether new evidence. The defense presented affidavits from seven of the nine trial witnesses whose original testimony had identified him as the murderer. Some of these writings disavowed parts of prior testimony or implicated Sylvester “Redd” Coles, who he contended was the actual triggerman. The state presented witnesses, including the police investigators and original prosecutors. He did not call some of the witnesses who had recanted, despite their presence in the courthouse. Evidence that Coles had confessed to the killing was excluded as hearsay because Coles was not subpoenaed.

The conviction was upheld. The court described defense efforts to upset the conviction as “largely smoke and mirrors” and found that several of the proffered affidavits were not recantations at all. A fourth execution date was set for September 21, 2011. Nearly one million people signed petitions urging the Georgia Board of Pardons and Paroles to grant clemency. The Board denied clemency and, it refused to reconsider its decision. After a last-minute appeal to the SCOTUS was denied. #africanhistory365 #africanexcellence