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FEDERAL JUDGE TAKES PASS ON DIVORCE CASE A federal judge declined to wade into a Contra Costa County divorce battle in which a woman argued the state court’s rules violated her constitutional rights. Senior U.S. District Judge Thelton Henderson, in a ruling Thursday, said the case did not constitute “extraordinary circumstances. “While this court is sympathetic � it cannot set aside well-settled precedent or principles on comity to intervene in plaintiff’s ongoing state proceedings,” Henderson said. Contra Costa court rules limit live testimony in certain family law proceedings, and Pacific Grove-based attorney Seth Goldstein argued those rules violated his client’s civil rights. Goldstein said live testimony was crucial in his client’s case because Contra Costa County Superior Court Judge John Kennedy would have to weigh allegations of child abuse and other crimes. Goldstein was backed by an amicus brief from the California chapter of the National Organization for Women. The attorney general’s office, which represented Judge Kennedy, argued Henderson had little legal ground to become involved. In particular, the case did not meet the “extraordinary circumstances” criteria set out in 1971′s Younger v Harris, 401 U.S. 307. In his ruling, Henderson agreed. “The court acknowledges that domestic violence and sexual abuse may present ‘extraordinary circumstances’ in the everyday sense of the term, but the court finds no authority to conclude that they present extraordinary circumstances as contemplated under Younger.” Goldstein says he plans to file a writ to the state appellate court on the same issue. He may also try his luck in federal court again. “We will try it again another way,” Goldstein said. The case is Margaret F.-G. v. Superior Court, 03-1175. — Jahna Berry JUDGE DEFENDS HIS DOWNWARD DEPARTURE NEW YORK — Southern District Judge Robert Patterson on Monday denounced Congress’ toughening of the federal sentencing guidelines as he gave a lesser sentence to a man who admitted firing shots at the United Nations building. Calling recent legislation in Congress aimed at reducing downward departures by judges “their latest attack on the third branch of government,” Judge Patterson gave a man who fired the shots in a political protest a lesser sentence than agreed to in a plea agreement between the prosecution and the defense. Judge Patterson found that Steven Kim’s decision to fire seven shots at the United Nations to call attention to the repressive regime in North Korea in October 2002 did not meet the definition of aggravated assault, the crime to which Kim had already entered a plea of guilty. So instead of sentencing the 57-year-old U.S. citizen to somewhere between 30 and 37 months, Judge Patterson ordered Kim to serve two years and three months in prison. The judge departed from the guidelines because, he said, aggravated assault is a felonious assault that involves a “dangerous weapon with intent to cause bodily injury (i.e., not merely to frighten) with that weapon.” “Here, the court finds that aiming a gun at eighty-five degrees in front of an office building is not bound to result in bodily harm,” the judge said, adding that “strict application” of the guideline “is inappropriate in this case.” — The New York Law Journal STEWART E-MAIL IS RULED WORK PRODUCT NEW YORK — An e-mail Martha Stewart sent to both her attorney and her daughter during a grand jury investigation is still protected as attorney work product, a federal judge ruled Monday. Analyzing the work-product doctrine in the context of an “unusual set of facts,” Southern District Judge Miriam Goldman Cedarbaum said that “although the e-mail to Stewart’s daughter does not realistically risk revealing the thought processes of Stewart’s attorneys, I conclude that it is protectible as preparation for litigation.” The ruling in United States v. Stewart, 03 Cr. 717, came in response to a motion by the government for clarification of whether the e-mail was covered by the doctrine and whether Stewart had waived the privilege when she forwarded the message to her daughter. Stewart is facing a January trial, along with co-defendant and former broker Peter Bacanovic, for conspiracy, obstruction of justice, making false statements and securities fraud in connection with her alleged cover-up of her sale of ImClone Systems Inc. stock based on inside information. Stewart was not charged with insider trading. Stewart composed an e-mail for attorney Andrew Nussbaum of Wachtell, Lipton, Rosen & Katz on June 23, 2002, outlining her version of events on the ImClone sale. She forwarded the same e-mail to her daughter, Alexis Stewart, the next day. — The New York Law Journal

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