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CONSTITUTIONAL LAW Indiana photo I.D. voting law isn’t undue burden It is not unconstitutional for Indiana to require in-person voters to present government-issued photo identification, the 7th U.S. Circuit Court of Appeals held on Jan. 4. Crawford v. Marion County Election Board, No. 06-2218. Indiana enacted a law that requires, with some exceptions, in-person voters to present a government-issued photo I.D. Voters without an I.D. can get one from the state motor vehicle bureau by showing their birth certificate (or certificate of naturalization). Provisional ballots may be cast on Election Day by those without I.D.’s. Indigent voters then have 10 days to file an indigency affidavit; nonindigent voters have 10 days to get an I.D. Some candidates for public office, voters and organizations such as the Democratic Party, challenged the law as an undue burden on the right to vote. An Indiana federal court granted summary judgment for the defendants. The 7th Circuit affirmed, holding that the law’s purpose is to reduce voting fraud, which impairs the right of legitimate voters to vote, by diluting their votes. The court said,”There is not a single plaintiff who intends not to vote because of the new law . . . .There are plaintiffs who have photo IDs and so are not affected by the law at all and plaintiffs who have no photo IDs but have not said they would vote if they did and so who also are . . . unaffected by the law. There thus are no plaintiffs whom the law will deter from voting.” The motivation for the suit, the court said, is “that the law may require the Democratic Party and the other organizational plaintiffs to work harder to get every last one of their supporters to the polls.” CRIMINAL PRACTICE Perjury must be material for sentence increase A federal district judge erred in enhancing a sentence for obstruction of justice based on perjury without first making a finding that the perjury was material, the 9th U.S. Circuit Court of Appeals held on Jan. 5. U.S. v. Jimenez-Ortega, No. 06-50007. After fleeing from a vehicle loaded with marijuana, Jose Jimenez-Ortega was charged with importing and possessing narcotics with intent to distribute. At trial, a federal judge found his testimony “incredible,” and imposed an upward adjustment on his sentence for obstruction of justice based on perjury, pursuant to the Federal Sentencing Guidelines. Jimenez-Ortega appealed, arguing that the court had erred in adjusting his sentence upward because it made no finding of fact that his perjury was material. Reversing and remanding, the 9th Circuit resolved a conflict between two of its earlier cases, and held that materiality must be determined by a trier of fact before a sentence can be adjusted upward for perjury. Noting that the U.S. Supreme Court had addressed the issue in its 1995 decision, U.S. v. Gaudin, in the period between the two earlier 9th Circuit decisions, the court said, “Post-Gaudin, the materiality of a false statement is one of the factual predicates of an obstruction enhancement, and we must remand where the district court failed to make a finding on this point.” Training shows reliability of drug-sniffing dog When assessing a drug-sniffing dog’s reliability, the dog’s and his handler’s certification and training are more important than field reports, the South Dakota Supreme Court ruled on Jan. 3. State v. Nguyen, No. 23613-a-JKK. A South Dakota police officer led a drug-sniffing dog around Tam Thi Thu Nguyen’s car after stopping her for following too closely. The dog bit at the fender under the trunk. Though the biting was not the usual, aggressive response the dog usually gave when he smelled drugs, the officer said the dog’s behavior gave him probable cause to search the vehicle. The officer opened the trunk, and found nearly 54 pounds of marijuana inside. The trial court denied Nguyen’s motion to suppress and she was convicted for possession with intent to distribute. Nguyen appealed, pointing to field reports showing that the drug-sniffing dog failed to find drugs in 54% of the cases. Since the dog was unreliable, it was improper to base probable cause on his behavior. The South Dakota Supreme Court affirmed. Field reports, standing alone, do not establish a drug-sniffing dog’s reliability, the court said, noting that because dogs are trained to alert to the scent of drugs, not necessarily the drugs themselves, there would be times when the dog would smell drugs (because drugs were once present), but not find any drugs. The dog’s and his handler’s certification and training history are more important and, in this case, support a finding of the dog’s reliability. Dismissal needs evidence prosecutor seeks mistrial To dismiss an indictment for double jeopardy based on prosecutorial misconduct, the district court must find that the government in fact intended to goad the defendant into requesting a mistrial, the 3d U.S. Circuit Court of Appeals ruled on Jan. 4. U.S. v. Williams, No. 05-4292. Philadelphia prosecutors charged Kenneth Williams with two counts of possession with intent to distribute crack cocaine. Before trial, Williams and the prosecutor agreed not to introduce evidence of previous drug convictions. Nonetheless, during the trial, and despite admonitions from the judge, the prosecutor twice asked Williams about his prior convictions. A Pennsylvania federal court granted Williams’ motion for a mistrial. At a hearing on Williams’ motion to dismiss the indictment, the prosecutor insisted that he had misunderstood the pretrial order. The district court granted the motion to dismiss. The 3d Circuit reversed. Though acknowledging that it is hard to discern the prosecutor’s intent from a “cold record,” the court noted that the case for the government was going very well, so there was no reason for the government to want to induce Williams into asking for a mistrial. Dismissal for prosecutorial misconduct would have required a showing that the prosecution intended to goad Williams into asking for a mistrial. INTERNET LAW Internet file-sharing of child porn is ‘distribution’ A member of a peer-to-peer file-sharing network who kept child pornography in an accessible shared folder engaged in the “distribution” of child pornography, the 10th U.S. Circuit Court of Appeals held on Jan. 3. USA v. Shaffer, No. 06-3145. A 27-year-old college student, Aaron Shaffer, was a member of the Internet file-sharing network “Kazaa.” He copied child pornography files from other users’ shared folders, and placed them into his shared folder. Other members then copied some child pornography files from Shaffer. The government charged him with possession and distribution of child pornography. The distribution charge was based solely on the “sharing” of files via Kazaa. Shaffer was convicted in a Kansas federal court and sentenced to 60 months in prison. The 10th Circuit affirmed, holding that it had “little difficulty in concluding that Mr. Shaffer distributed child pornography in the sense of having ‘delivered,’ ‘transferred,’ ‘dispersed,’ or ‘dispensed’ it to others.” The court compared the shared folder to a self-service gas station, in which the owner may be passive, but is still no doubt encouraging others to take what is being offered. LABOR LAW Marine’s firing must be seen to be nonpretextual Under the uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA), an employer must show that the stated reason for the dismissal of an employee was not pretextual, the 1st U.S. Circuit Court of Appeals ruled on Jan. 4 in a case of first impression. Vel�zquez-Garc�a v. Horizon Lines of Puerto Rico Inc., No. 06-1082. Since 1999, Carlos Vel�zquez-Garc�a had worked at a marine terminal for Horizon Lines of Puerto Rico Inc. In 2002, he enlisted as a reservist in the U.S. Marines. This required monthly weekend sessions that conflicted with his weekend shifts. In 2004, Vel�zquez began operating a side business cashing the checks of Horizon employees. Upon discovery, Horizon fired him, claiming that his check-cashing activity violated the company’s code of business conduct. Vel�zquez sued under USERRA, alleging that his firing constituted illegal discrimination due to his military service. A Puerto Rico federal court granted Horizon summary judgment, holding that Vel�zquez had not shown sufficient discriminatory animus, or that the stated reason for his firing was pretextual. The 1st Circuit reversed, holding that under USERRA the issue is not whether an employer is entitled to dismiss an employee for a particular reason, but whether it would have done so if the employee were not in the military. Usually, once an employee establishes a prima facie case of discriminatory animus, the employer only has to produce “some legitimate, nondiscriminatory reason” for the employee’s firing. In this case, “While Vel�zquez’s violation of the code may well be a fireable offense . . . that is only the beginning of the analysis. Horizon has to demonstrate that it would have fired Vel�zquez, regardless of his military status.” Horizon had not met its burden of showing that no jury could find that Vel�zquez’s check-cashing business was a mere pretext for his dismissal. LEGAL PROFESSION OK to sanction attorney despite eight-year delay An eight-year delay between the filing of an original grievance and the initiation of a disciplinary proceeding against an attorney accused of misappropriating funds doesn’t warrant a reduction in the sanction against the attorney, the Massachusetts Supreme Judicial Court held on Jan. 2. In re Grossman, No. SJC-09658. An attorney disciplinary hearing committee found that Jodie Grossman, an attorney licensed in Massachusetts who had opened a bank account for the estate on which she worked, had withdrawn funds for her personal use. In 1994, an attorney filed a bar grievance against Grossman. Bar counsel subpoenaed bank account records in 1998, but did not initiate disciplinary proceedings until 2002. Citing what it called a “prejudicial delay” in the bar counsel’s filing of disciplinary proceedings, the hearing committee recommended a suspension of one year and one day, instead of the presumptive sanction of disbarment or indefinite suspension. However, the Massachusetts Board of Bar Overseers recommended a four-year suspension, and a single justice of the Massachusetts Supreme Judicial Court ordered an indefinite suspension. Affirming the order of the single justice, the full Massachusetts Supreme Judicial Court, the state’s highest court, found that Grossman wasn’t substantially prejudiced. The court said an indefinite suspension was appropriate. “There is no excuse for the delay in this case. However, the respondent did not demonstrate to the satisfaction of this court that she had sustained her burden of establishing that the delay met the ‘substantially prejudicial’ standard . . . .For that reason we impose the presumptive sanction for her misconduct,” the court said. Attorney-public official exchange is protected The attorney-client privilege protects disclosure of e-mail between a county attorney and an elected official, the 2d U.S. Circuit Court of Appeals ruled on Jan. 3 in a matter of first impression. In re The County of Erie, No. 06-2459. In connection with a lawsuit against Erie County, N.Y., over the sheriff’s department’s strip-search policy, a New York federal court ordered the county to produce the e-mail exchanged between an assistant county attorney and county officials. The court said that the e-mail, which discussed the pros and cons of the strip-search policy, went beyond legal analysis or legal advice, and concerned policy recommendations. The county sought a writ of mandamus to compel the district court to rescind its order. The 2d Circuit granted the writ, noting that the case presents a key issue: “whether the attorney-client privilege protects communications that pass between a government lawyer having no policymaking authority and a public official, where those communications assess the legality of a policy and propose alternative policies in that light.” The court said it does. So long as the purpose of the communication is legal advice, the discussion of consequences and alternatives can’t be severed from the communication. The purpose may be discerned from the client’s overall needs, and here, the county was seeking to ascertain whether its policy would run afoul of the Fourth Amendment. TORTS No recovery on ground of fear of future illness Mississippi law doesn’t recognize a cause of action for medical monitoring, the Mississippi Supreme Court held on Jan. 4 in answer to a certified question from the 5th U.S. Circuit Court of Appeals. Paz v. Brush Engineered Materials Inc., No. 2006-FC-007710-SCT. Current and previous employees of the John C. Stennis Space Center in Mississippi and Canoga Park facility in California filed a class action against four corporations for exposure to beryllium. The plaintiffs claimed that the defendants’ negligence had caused their exposure to beryllium. Although the plaintiffs suffered no physical injuries, they sought medical-monitoring costs associated with their possibly developing Chronic Beryllium Disease. A Mississippi federal court granted the defendants’ motion to dismiss, saying that the plaintiffs had failed to state a claim because Mississippi does not recognize a medical-monitoring cause of action. The 5th Circuit asked the state high court to decide the issue. The Mississippi Supreme Court affirmed. The court said that even in an emotional distress action a victim must be shown to have suffered some injury. “The possibility of a future injury is insufficient to maintain a tort claim,” the court said. “Recognizing a medical monitoring cause of action would be akin to recognizing a cause of action for fear of future illness. Each bases a claim for damages on the possibility of incurring an illness with no present manifest injury. There is no tort cause of action in Mississippi without some identifiable injury, either physical or emotional.”

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