Read the ruling here.
from Courthouse News
Briefs and rulings from courthouses across the land.
Friday, December 16, 2022
Thursday, December 15, 2022
Tornadoes rip through Louisiana, leaving 3 dead and thousands without power
NEW ORLEANS (CN) — Tornadoes that formed across Louisiana Tuesday and Wednesday left at least three people dead, cut power to thousands of residences statewide and leveled neighborhoods.
The destruction came after the same system wreaked havoc in parts of Oklahoma, east Texas and northwest Louisiana earlier this week.
In Killona, a small neighborhood in St. Charles Parish roughly 33 miles west of New Orleans, a woman was killed, eight others were injured and at least 20 families were displaced after a twister ripped through the neighborhood just after 2:20 p.m. Wednesday. The area is still repairing damage caused by Hurricane Ida in 2021.
During a press conference Wednesday evening, St. Charles Parish Sheriff Greg Champagne called the tornado “horrific” and said Killona was “probably in the eyewall” for Hurricane Ida.
“They didn’t need this again,” Champagne said.
He said the woman who died during the storm, whose name he declined to release, was found outside her home.
Search and rescue teams went door-to-door in the affected area, working around downed powerlines, blocked roads and gas leaks left in the wake of the violent storm.
Late Tuesday, a mother and her young son were killed after a twister hit their rural north Louisiana community in Caddo Parish near Shreveport.
The Caddo Parish Coroner’s Office said the body of 8-year-old Nikolus Little was found around 11 p.m. Tuesday in a wooded area a half mile from their home after tornadoes tore through the area.
The body of his mother, 30-year-old Yoshiko A. Smith, was found hours later, around 2:30 a.m. Wednesday, under storm debris near their destroyed house, according to Sheriff Steve Prator, who said the boy’s father reported them missing.
“We couldn’t even find the house that he was describing with the address. Everything was gone,” Prator told Shreveport TV station KSLA.
About 90 miles east in Farmville, Louisiana, multiple tornadoes ripped through a neighborhood with mobile homes and an apartment complex late Tuesday. About 20 people were hospitalized, some with critical injuries, according to a report the Union Parish Sheriff’s Office gave to Monroe TV station KNOE.
Louisiana Governor John Bel Edwards issued a state of emergency declaration Wednesday morning, citing six possible tornado touchdowns across the state.
“I am heartbroken to learn of the mother and child who were killed in Southwest Caddo Parish due to one of numerous reported tornadoes,” the Democratic governor said in a news release.
A tornado watch across the New Orleans area was called at 3:45 p.m. Wednesday, projected to last until around 4:30 p.m. Not long after, footage popped up on social media showing funnel clouds and flying debris in various neighborhoods around The Big Easy.
Thousands of residents were without power as the storm, consisting of loud, crashing thunder, torrents of rain, and vivid lightning, moved past. The storm brought down hundreds of power lines as it traveled across the New Orleans area, according to official estimates.
A neighborhood just beyond the Ninth Ward was hit by a twister for the second time in nine months around 4 p.m. Wednesday after funnel clouds cut across the Mississippi River and landed in the Friscoville Avenue neighborhood, which was devastated by tornadoes last March.
Wednesday’s damage in Friscoville was minor compared to the spring storm, according to early reports. The March tornadoes left two people in the neighborhood dead and damaged around 150 homes, half of which were destroyed completely by official estimates. The latest twister appeared to have followed a similar path.
St. Bernard Parish President Guy McInnis said Wednesday’s damage in Arabi – an historic area roughly 8 miles from downtown New Orleans – appeared to be mostly missing roof shingles, though a few roofs may have blown off, he said. He added that emergency responders had rescued around 10 people, but so far no casualties were reported in Arabi.
Throughout the day Wednesday, an emergency broadcast system in New Orleans sent texts in English and Spanish instructing residents what to do.
“If tornado warning is issued, prepare to shelter in an interior room on lowest level away from windows,” a 2:29 p.m. text from NOLAReady said.
City Hall, courthouses and other government buildings in New Orleans closed at 1 p.m. Wednesday. Area schools remained open. After an official tornado warning was issued at 3:45 p.m., text alerts continued.
“If in a car during tornado, try to drive to the closest sturdy shelter. Lie in an area lower than level of the roadway. Cover your head w/ your arms,” the alert system instructed.
“I guess we’re getting used to this, that’s a sad thing,” McInnis told the New Orleans Advocate. “I guess this is tornado alley now.”
Two schools in Arabi remained closed Thursday due to power outages, and at least two schools in Jefferson Parish were closed because of storm damage.
Thousands of residents were still without power statewide.
from Courthouse News
Wednesday, December 14, 2022
Mississippi executes man for rape, murder of teen girl
PARCHMAN, Miss. (AP) — A man who pleaded guilty to raping and killing a 16-year-old girl was put to death by lethal injection in Mississippi on Wednesday, becoming the second inmate executed in the state in 10 years.
A coroner pronounced Thomas Edwin Loden Jr., 58, dead at 6:12 p.m. at the Mississippi State Penitentiary at Parchman. The manner of death had been the subject of Loden’s final attempt to stave off the execution.
He has been on death row since 2001, when he pleaded guilty to capital murder, rape and four counts of sexual battery against Leesa Marie Gray. Earlier this month, a federal judge declined to block Mississippi from carrying out the execution amid a pending lawsuit from Loden and four Mississippi death row inmates over the state’s lethal injection protocol. Mississippi’s most recent execution was in November 2021.
Loden wore a red prison jumpsuit and was covered by a white sheet during the execution. Brown leather straps held him down on a gurney.
Before the injection started, Loden said he was “deeply remorseful.”
“For the past 20 years, I’ve tried to do a good deed every single day to make up for the life I took from this world,” Loden said. “If today brings you nothing else, I hope you get peace and closure.”
He concluded his last words by saying “I love you” in Japanese, officials said.
During the summer ahead of what should have been Gray’s senior year of high school, she had worked as a waitress at her uncle’s restaurant in northeast Mississippi. On June 22, 2000, she left work after dark and became stranded with a flat tire on a rural road.
Loden, a Marine Corps recruiter with relatives in the area, encountered Gray on the road around 10:45 p.m. He stopped and began speaking with the teenager about the flat tire. “Don’t worry. I’m a Marine. We do this kind of stuff,” he said.
Loden told investigators he became angry after Gray allegedly said she would never want to be a Marine, and that he ordered her into his van. He spent four hours sexually assaulting her before strangling and suffocating her, according to an interview he gave investigators.
Court records show that on the afternoon of June 23, 2000, “Loden was discovered lying by the side of a road with the words ‘I’m sorry’ carved into his chest and apparent self-inflicted lacerations on his wrists.”
After pleading guilty in September 2001, Loden told Gray’s friends and family during his sentencing: “I hope you may have some sense of justice when you leave here today.”
Wanda Farris, Gray’s mother, described her daughter as a “happy-go-lucky, always smiling” teenager who aspired to become an elementary school teacher.
“She wasn’t perfect, now, mind you,” Farris said. “But she strived to do right.”
Farris had planed on attending the execution Wednesday.
In 2015, attorneys for the Roderick & Solange MacArthur Justice Center sued the Mississippi prison system on behalf of two death row inmates, saying the state’s lethal injection protocol is inhumane. Loden and two other Mississippi death row inmates later joined as plaintiffs.
The Mississippi Department of Corrections revealed in court papers in July 2021 that it had acquired three drugs for its lethal injection protocol: midazolam, which is a sedative; vecuronium bromide, which paralyzes the muscles; and potassium chloride, which stops the heart.
Jim Craig, a MacArthur Center attorney, said at a November court hearing that since 2019, only Alabama, Oklahoma, Mississippi and Tennessee have conducted executions using a three-drug protocol.
According to the Death Penalty Information Center, 27 states have the death penalty. Craig said a majority of death-penalty states and the federal government used a three-drug protocol in 2008, but the federal government and most of those states have since started using one drug.
In November, Alabama Gov. Kay Ivey sought a pause in executions and ordered a “top-to-bottom” review of the state’s capital punishment system after a series of failed lethal injections. Jeworski Mallett, deputy commissioner of institutions for the Department of Corrections, told reporters that Mississippi has done “mock executions and drills” on a monthly basis to avoid a botched execution.
A week before Loden’s scheduled execution, U.S. District Judge Henry Wingate handed down a ruling saying the execution could happen even while the lawsuit is pending. He wrote that the U.S. Supreme Court had upheld a three-drug lethal injection protocol as recently as seven years ago in a case from Oklahoma.
There are 36 inmates on death row in Mississippi. Death Penalty Action, a group opposed to capital punishment, convened a news conference Tuesday in front of the state capitol in Jackson to voice their opposition to Loden’s execution.
“Clearly, something in him snapped for him to commit such a horrific crime,” said Mitzi Magleby, a spokesperson for the Mississippi chapter of Ignite Justice, an organization that advocates for criminal justice reform. “Mr. Loden was immediately remorseful. Shouldn’t there be room for grace and mercy in such a situation?”
Farris told the AP on Friday that she forgave Loden years ago, but she did not believe his apology.
“I don’t particularly want to see somebody die,” Farris said. “But I do believe in the death penalty. … I do believe in justice.”
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By MICHAEL GOLDBERG Associated Press/Report for America
Emily Wagster Pettus contributed to this report.
from Courthouse News
Winter US storm brings warnings of more tornadoes, blizzards
DALLAS (AP) — A destructive winter storm marched across the United States on Wednesday, delivering blizzard-like conditions to the Great Plains hours after tornadoes touched down in parts of Texas, Oklahoma and Louisiana.
Five tornadoes were confirmed across north Texas as of Tuesday afternoon based on video and eyewitness reports, but potentially a dozen may have occurred, the National Weather Service in Fort Worth, Texas, reported.
Dozens of homes and businesses were damaged by the line of thunderstorms, and several people were injured in the suburbs and counties stretching north of the Dallas-Fort Worth area. More than 1,000 flights into and out of area airports were delayed, and over 100 were canceled, according to the tracking service FlightAware.
Two people were missing and homes were destroyed Tuesday when a tornado hit Four Forts, Louisiana, about 10 miles from Shreveport, said Sgt. Casey Jones of the Caddo Parish Sheriff’s Office.
“I’m hoping they’re with family somewhere,” Jones said. There were no immediate reports of deaths.
The severe weather threat continued into Wednesday for Louisiana, Mississippi, Alabama and the Florida Panhandle, according to the Storm Prediction Center in Norman, Oklahoma.
Blizzard warnings stretched from Montana into western Nebraska and Colorado, and the National Weather Service said as much as 2 feet (61 centimeters) of snow was possible in some areas of western South Dakota and northwestern Nebraska. Winds of more than 50 mph (80 kph) at times will make it impossible to see outdoors in Nebraska, officials said.
“There’s essentially no one traveling right now,” said Justin McCallum, a manager at the Flying J truck stop at Ogallala, Nebraska.
Forecasters expect the storm system to hobble the upper Midwest with ice, rain and snow for days, as well as move into the Northeast and central Appalachians. Residents from West Virginia to Vermont were told to watch out for a possible significant mix of snow, ice and sleet, and the National Weather Service issued a winter storm watch from Wednesday night through Friday afternoon, depending on the timing of the storm.
In the Dallas suburb of Grapevine, police spokesperson Amanda McNew reported five confirmed injuries Tuesday.
A possible tornado blew the roof off the city’s service center — a municipal facility — and left pieces of the roof hanging from powerlines, said Trent Kelley, deputy director of Grapevine Parks and Recreation.
It was also trash day, so the storm picked up and scattered garbage all over, he said.
Photos sent by the city showed downed power lines on rain-soaked streets, as well as toppled trees, damaged buildings and a semitrailer that appeared to have been tossed around a parking lot.
In Colorado, all roads were closed in the northeast quadrant of the state. The severe weather in the ranching region could also threaten livestock. Extreme winds can push livestock through fences as they follow the gale’s direction, said Jim Santomaso, a northeast representative for the Colorado Cattlemen’s Association.
“If this keeps up,” said Santomaso, “cattle could drift miles.”
A blizzard warning has been issued on Minnesota’s north shore, as some areas are expecting up to 24 inches of snow and wind gusts up to 40 mph. And in the south of the state, winds gusting up to 50 mph (80 kph) had reduced visibility.
National Weather Service meteorologist Melissa Dye in the Twin Cities said this is a “long duration event” with snow, ice and rain through Friday night. Minnesota was expecting a lull Wednesday, followed by a second round of snow.
The same weather system dumped heavy snow in the Sierra Nevada and western U.S. in recent days.
___
By JAMIE STENGLE and STEPHEN GROVES Associated Press
from Courthouse News
Thursday, December 8, 2022
Bill protecting same-sex, interracial unions passes House
WASHINGTON (AP) — The House gave final approval Thursday to legislation protecting same-sex marriages, a monumental step in a decadeslong battle for nationwide recognition of such unions that reflects a stunning turnaround in societal attitudes.
President Joe Biden is expected to promptly sign the measure, which requires all states to recognize same-sex marriages, a relief for hundreds of thousands of couples who have married since the Supreme Court’s 2015 decision that legalized those marriages nationwide.
The bipartisan legislation, which passed 258-169, would also protect interracial unions by requiring states to recognize legal marriages regardless of “sex, race, ethnicity, or national origin.”
In debate ahead of the vote, several gay members of Congress talked about what it would mean for them and their families. Rep. Chris Pappas, D-N.H., said he was set to marry “the love of my life” next year and that it is “unthinkable” that his marriage might not be recognized in some states.
Rep. Mark Pocan, D-Wis., said he and his husband should be able to visit each other in the hospital just like any other married couple and receive spousal benefits “regardless of if your spouse’s name is Samuel or Samantha.”
Rep. David Cicilline, D-R.I., said that the idea of marriage equality used to be a “far-fetched idea, Now it’s the law of the land and supported by the vast majority of Americans.”
While the bill received GOP votes, most Republicans opposed the legislation and some conservative advocacy groups lobbied aggressively against it, arguing that it doesn’t do enough to protect those who want to refuse services for same-sex couples.
“God’s perfect design is indeed marriage between one man and one woman for life,” said Rep. Bob Good, R-Va. “And it doesn’t matter what you think or what I think, that’s what the Bible says.”
Rep. Vicky Hartzler, R-Mo., choked up as she begged colleagues to vote against the bill, which she said undermines “natural marriage” between a man and a woman.
“I’ll tell you my priorities,” Hartzler said. “Protect religious liberty, protect people of faith and protect Americans who believe in the true meaning of marriage.”
Democrats moved the bill quickly through the House and Senate after the Supreme Court’s June decision that overturned the federal right to an abortion. That ruling included a concurring opinion from Justice Clarence Thomas that suggested same-sex marriage should also be reconsidered.
The House passed a bill to protect the same-sex unions in July with the support of 47 Republicans, a robust and unexpected show of support that kick-started serious negotiations in the Senate. After months of talks, the Senate passed the legislation last week with 12 Republican votes.
House Speaker Nancy Pelosi, D-Calif., presided over the vote as one of her last acts in leadership before stepping aside in January. She said the legislation “will ensure that “the federal government will never again stand in the way of marrying the person you love.”
The legislation would not require states to allow same-sex couples to marry, as the Supreme Court’s 2015 Obergefell v. Hodges decision now does. But it would require states to recognize all marriages that were legal where they were performed and it would protect current same-sex unions if the Obergefell decision were overturned.
While it’s not everything advocates may have wanted, passage of the legislation represents a watershed moment. Just a decade ago, many Republicans openly campaigned on blocking same-sex marriages; today more than two-thirds of the public support them.
Democrats in the Senate, led by Wisconsin’s Tammy Baldwin and Arizona’s Kyrsten Sinema, slowly won over key Republican votes by negotiating an amendment that would clarify that the legislation does not affect the rights of private individuals or businesses that are already enshrined in current law. The amended bill would also make clear that a marriage is between two people, an effort to ward off some far-right criticism that the legislation could endorse polygamy.
In the end, several religious groups, including The Church of Jesus Christ of Latter-day Saints, came out in support of the bill. The Mormon church said it would support rights for same-sex couples as long as they didn’t infringe upon religious groups’ right to believe as they choose.
Conservative groups that opposed the bill pushed the almost four dozen Republicans who previously backed the legislation to switch their position. The Republicans who supported the bill in July represented a wide range of the GOP caucus — from more moderate members to Pennsylvania Rep. Scott Perry, the chair of the conservative hard-right House Freedom Caucus, and New York Rep. Elise Stefanik, the No. 3 House Republican. House Republican leader Kevin McCarthy voted against the measure.
Thursday’s vote came as the LGBTQ community has faced violent attacks, such as the shooting earlier this month at a gay nightclub in Colorado that killed five people and injured at least 17.
“We have been through a lot,” said Kelley Robinson, the incoming president of the advocacy group Human Rights Campaign. But Robinson says the votes show “in such an important way” that the country values LBGTQ people.
“We are part of the full story of what it means to be an American,” said Robinson, who was inside the Senate chamber for last week’s vote with her wife and young son. “It really speaks to them validating our love.”
The vote was personal for many senators, too. The day the bill passed their chamber, Senate Majority Leader Chuck Schumer was wearing the tie he wore at his daughter’s wedding to another woman. He recalled that day as “one of the happiest moments of my life.”
Baldwin, the first openly gay senator who has been working on gay rights issues for almost four decades, tearfully hugged Schumer as the final vote was underway. She tweeted thanks to the same-sex and interracial couples who she said made the moment possible.
“By living as your true selves, you changed the hearts and minds of people around you,” she wrote.
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By MARY CLARE JALONICK Associated Press
from Courthouse News
Wednesday, December 7, 2022
Top 8 today
National
Supreme Court digs into redistricting play that would usurp judicial checks
Giving a major elections case intensely even debate, the Supreme Court appeared split on partisan lines Wednesday as it considered a redistricting theory that advocates say could trample a core tenet of democracy.
Sixth Circuit hears bid to dismantle horse racing authority
Regulatory authority for the horse racing industry should be left to states or the federal government, not a private entity with unfettered power, according to arguments made by Oklahoma, West Virginia and Louisiana before the Sixth Circuit on Wednesday.
Regional
‘Racial balancing’ in top Boston public schools troubles 1st Circuit
The Supreme Court’s pending case on affirmative action at Harvard weighed heavily on the First Circuit Wednesday as it tried to decide the constitutionality of a plan that changed the racial balance of Boston’s prestigious public exam schools.
South Carolina private schools argue for access to Covid relief funds
The Roman Catholic Diocese of Charleston and a private college association asked a Fourth Circuit panel on Wednesday to strike down a provision of the South Carolina Constitution that prohibits public funds from being diverted to private and religious schools, arguing they are being unfairly deprived of Covid-19 pandemic relief aid.
Indiana defends charitable bail law at Seventh Circuit
The ACLU argued before the Seventh Circuit on Wednesday that an Indiana bail law unfairly targets charitable organizations and violates their free speech rights, while an attorney for the state countered that paying bail is not expressive conduct.
International
GDP, employment growth up but slowing in EU
Despite a slower third quarter, the EU’s statistics agency reports Europe’s economy is growing at a faster annual rate than the U.S., driven by investments in fixed assets and the purchase of household goods.
Mexico lawmakers approve López Obrador’s ‘Plan B’ to tanked electoral reform
The Mexico Chamber of Deputies pushed through a batch of reforms to the country’s federal electoral system early Wednesday morning after the president’s controversial original amendment failed to pass.
Science
Asteroid that wiped out dinosaurs struck them down in their prime, study says
Dinosaurs were supremely well-adapted to their environment when the asteroid that wiped them out hit, scientists say.
from Courthouse News
Sixth Circuit hears bid to dismantle horse racing authority
CINCINNATI (CN) — Regulatory authority for the horse racing industry should be left to states or the federal government, not a private entity with unfettered power, according to arguments made by Oklahoma, West Virginia and Louisiana before the Sixth Circuit on Wednesday.
The three states, along with several governing bodies for the industry, sued the federal government in 2021, claiming the creation of the Horseracing Integrity and Safety Authority Inc., or HISA, violated the U.S. Constitution and deprived them of any rulemaking authority.
HISA was created by the Horseracing Integrity and Safety Act as a means to address doping and track safety conditions across the United States, but Oklahoma and the governing body of its horse racing industry criticized it as an unlawful delegation of legislative power to a private entity.
Senior U.S. District Judge Joseph Hood, an appointee of George H.W. Bush, sided with the federal government and dismissed the case after he determined the legislation established clear boundaries on HISA’s power, including a requirement that all rules be approved by the Federal Trade Commission, or FTC.
Oklahoma and the other states disagreed with Hood’s assessment in their brief to the Cincinnati-based Sixth Circuit and argued the FTC acts merely as a “rubber stamp” when it comes to rules and regulations proposed by HISA.
This arrangement violates the private nondelegation doctrine of the U.S. Constitution, according to the states, which allows Congress to “grant private entities no more than a ‘ministerial’ or ‘advisory’ role in the exercise of governmental power.”
“The delegation here is the ‘most obnoxious form’ of private delegation that has ever been enacted into federal law,” the brief states. “The FTC cannot refuse to publish the Authority’s regulations unless they fall outside the wide range of permissible policy choices that are ‘consistent’ with HISA. If the Authority proposes a rule that is consistent with HISA but that the FTC opposes as a policy matter, the FTC is impotent; it must promulgate that rule as federal law.”
In its brief to the Sixth Circuit, the federal government compared the system created by the Horseracing Integrity and Safety Act to that used by the securities industry, “where private self-regulatory organizations are subject to oversight by the Securities and Exchange Commission.”
According to the brief, HISA can write and propose regulations for the horse racing industry, but ultimate rulemaking authority lies with the FTC.
“The FTC can modify a proposed rule by rejecting it and directing HISA to revise it and resubmit it,” the government explained. “And the FTC can promulgate rules itself, without HISA’s participation, whenever doing so is necessary to serve the Act’s purposes of safeguarding the health and safety of horses and the integrity of horse racing.”
Attorney Matthew McGill of Gibson, Dunn, and Crutcher argued Wednesday on behalf of the states and emphasized the relative lack of power the FTC has to change or reject rules adopted by HISA.
“Rules [created under the Act] are insulated from oversight,” he said.
Chief U.S. Circuit Judge Jeffrey Sutton, a George W. Bush appointee, asked the attorney why the legislation didn’t follow the SEC model exactly to ensure proper oversight.
“I can’t figure it out,” Sutton quipped.
McGill said it could have been the result of the FTC’s lack of knowledge of the horse racing industry, but admitted to the court his answer was speculative.
The attorney went on to say the SEC is required to enact rules that further the goals of the legislation used to create it, while “the FTC has no similar mandate here.”
“All the FTC can do,” he continued, “is make recommendations to change rules, and HISA is not required to [make the changes].”
Sutton probed into the heart of the matter near the conclusion of McGill’s arguments, asking why oversight of the industry being placed in the hands of a private entity is harmful.
“[The nondelegation clause] protects liberty,” the attorney said. “It ensures regulations are made by individuals who are accountable to elected officials.”
Justice Department attorney Courtney Dixon argued on behalf of the federal government and told the panel the “FTC has sole authority to make rules.”
“Why don’t they act like it?” Sutton asked.
Dixon assured the three-judge panel the commission reviews every rule proposed by HISA and that none take effect until they have passed its independent review process.
U.S. Circuit Judge R. Guy Cole Jr., a Bill Clinton appointee, asked the government’s attorney if she had any examples of rules being rejected by the commission. Dixon admitted she did not, but emphasized the current setup has only been implemented for a short period of time.
Attorney Pratik Shah of Akin Gump argued on behalf of HISA and urged the panel to adopt the U.S. Supreme Court’s precedent in Sunshine Anthracite Coal Co. v. Adkins.
Adkins, which dealt with the price of coal and was decided in 1940 by the nation’s high court, upheld what Shah described as a “parallel arrangement” to the one found in the current dispute.
HISA’s attorney pointed out that while his client comes up with the rules, they cannot be implemented without the review process established by the legislation and carried out by the FTC.
Sutton remained skeptical.
“If the FTC is subordinate to HISA [in certain situations], that is a serious problem,” he said.
In his rebuttal, McGill emphasized the FTC can only put forth temporary rules under the current scheme and is “utterly powerless” to change rules adopted by HISA.
U.S. Circuit Judge Richard Griffin, another George W. Bush appointee, rounded out the panel.
No timetable has been set for the court’s decision.
from Courthouse News
Wednesday, November 23, 2022
Tenth Circuit rejects bid by New Mexico court to withhold access
(CN) — In a consequential opinion on the eve of Thanksgiving, the Tenth Circuit ruled that the public right of access to new court complaints attaches at the time they are submitted. Wednesday’s 55-page opinion falls into a legal battlefield that stretches to every corner of the nation.
In addition to finding the right of access attaches upon submission, the opinion’s author, U.S. Circuit Judge Mary Briscoe, rejected another defense raised by New Mexico’s court administrators who said the federal court should abstain, which roughly translates as the state court administration saying to federal courts, stay out our business.
Critically, the Bill Clinton appointee also overturned a bright-line “five-hour rule” put in place by a federal trial court judge in Albuquerque, who said the clerks could withhold new complaints for five business hours which meant the majority could be held past the day they were submitted.
The Tenth Circuit, based in Denver, covers a wide swath of the West and Midwest including New Mexico, Colorado, Wyoming, Utah, Kansas and Oklahoma. On the panel for the case between Courthouse News and New Mexico’s administrative office were Judges Timothy Tymkovich, a George W. Bush appointee, and Barack Obama appointee Gregory Phillips in addition to Briscoe.
During oral argument this summer in front of that panel, Jon Fetterly with Bryan Cave argued for this news service that there is no need to withhold cases from the public in favor of clerical work because the public can see new cases at the same time that court clerks docket or “accept” them. The federal courts themselves give public access to new complaints when they are submitted and federal clerks do their work, at times correcting the submission, at that same time.
“Here, we conclude that the district court did not err in concluding that a First Amendment right to access civil complaints attaches when the complaint is filed (or submitted) to the court,” wrote Briscoe.
She pounded that point home by adding, “The New Mexico Courts have not cited to any case that supports the proposition that the right of access attaches at the point of acceptance, nor are we aware of any such case.”
The litigation was brought by Courthouse News against the administrator of New Mexico’s courts over their statewide “no-access-before-process” policy which held new complaints back until clerks finished reviewing the new filing and “accepting” them into a public docket. As a result, many of the new complaints — a regular source of news — were delayed until the next day.
“Reporting on complaints must be timely to be newsworthy and to allow for ample and meaningful public discussion regarding the functioning of our nation’s court systems,” wrote Briscoe, quoting from the Ninth Circuit opinion referred to as Planet III.
During a hearing in federal district court in Albuquerque, Courthouse News witnesses testified that the tradition of press and public access was very strong in New Mexico in the days of paper filing. Reporters saw new cases when they crossed the clerk’s intake counter.
Like many state courts when they converted to efiling, public access went backwards. The clerks held back the new efiled cases.
U.S. District Judge James Browning, sitting in Albuquerque, enjoined the administrators after that hearing. But he also set out a bright-line rule that gave them five hours to finish their clerical work. The case then took on an unusual procedural turn. New Mexico appealed on the issues of abstention and when the right of access attaches, while Courthouse News used one answering brief to both defend Browning’s rulings on the first two points but also attack the five-hour withholding window.
In Wednesday’s ruling on that appeal, Briscoe rejected New Mexico’s two main defenses: that the right of access attaches only after the clerks have done their administrative work; and that the federal courts should take a back seat to state courts in a constitutional challenge that affected state courts.
“Contrary to the New Mexico Courts’ assertions, their position that the right of access attaches to complaints only after clerks have completed their review is directly at odds with the principles underlying the First Amendment access right,” wrote Briscoe.
Representing Courthouse News, Katherine Keating with the Bryan Cave law firm said, “This opinion is the nail in the coffin for the notion that the First Amendment right of access does not attach until the court completes administrative processing.”
Fetterly who argued the case before the Tenth Circuit, added, “It is also the latest circuit opinion to reject abstention as a defense to this important First Amendment right.”
Four circuits have now rejected the abstention defense, the Fourth, Eighth, Ninth and Tenth. In addition, district court judges within the Second, Fifth, Sixth and Eleventh circuits have also rejected the defense. The unanimity of those opinions leaves the Seventh Circuit isolated as the lone court to rule in favor of abstention.
Briscoe’s Tenth Circuit 55-page opinion cited to key rulings in favor of Courthouse around the nation, including last year’s ruling by Judge Christina Reiss in the U.S. District of Vermont who enjoined Vermont’s clerks after finding the work of the clerks was what was holding up access to new complaints, and that it need not. The clerks could do their administrative work after or at the same time that public access was granted.
The Tenth Circuit opinion drops into an active and vast field of legal battle with cases on the same basic issues pending in trial courts in Oregon, Idaho, Texas, Ohio, Missouri and Maryland, and on appeal in the New York-based Second Circuit.
from Courthouse News
Thursday, November 17, 2022
Oklahoma executes man for 1993 killing of 3-year-old boy
McALESTER, Okla. (AP) — Oklahoma executed a man Thursday for the torture slaying of his girlfriend’s 3-year-old son in 1993, the third of four scheduled executions in the U.S. over a two-day stretch.
With Richard Fairchild’s execution, the state has now put to death seven people since it resumed carrying out executions in October 2021. In that time, Oklahoma has carried out more executions than neighboring Texas, which since 1976 has executed far more people than any other state.
More than half of the 40 people currently on Oklahoma’s death row have execution dates set over the next two years after the state Court of Criminal Appeals issued a moratorium in 2015 following a botched execution and two drug mix-ups in the death chamber.
Fairchild’s execution was the 16th in the U.S. this year — including one in Texas and one in Arizona on Wednesday — up from last year’s three-decade low of 11. An execution was also scheduled for later Thursday in Alabama.
After Thursday, three more executions are scheduled in the U.S. for the remainder of 2022 — one each in Missouri, Oklahoma and Idaho, according to the Death Penalty Information Center.
Fairchild, who turned 63 on Thursday, began receiving the first of a lethal three-drug combination at 10:10 a.m. at the Oklahoma State Penitentiary in McAlester. He was declared dead at 10:24 a.m.
Fairchild, an ex-Marine, was convicted of killing Adam Broomhall after the child wet the bed. Prosecutors say Fairchild held both sides of Adam’s body against a scorching furnace, then threw him into a table. The child never regained consciousness and died later that day.
Strapped to a gurney inside the death chamber, Fairchild thanked his attorneys and prison staff and apologized to Adam’s family.
“Today’s a day for Adam, justice for Adam,” Fairchild said.
“I’m at peace with God. Don’t grieve for me because I’m going home to meet my heavenly father.”
Michael Hurst, the slain child’s uncle, said the boy would have been 34.
“Our long journey for justice has finally arrived,” Hurst said, adding that he was surprised to hear Fairchild express remorse for killing his nephew. “He hadn’t said that in 30 years.”
Prosecutors from the Oklahoma attorney general’s office had described the boy’s killing as torture when they wrote to the state’s Pardon and Parole Board, which voted 4-1 last month against recommending clemency for Fairchild.
Attorneys for Fairchild argued that he was abused as a child, was mentally ill and was remorseful.
“As Richard Fairchild’s brain has deteriorated, he has descended into psychosis, a fact well-documented in his prison records,” Emma Rolls, one of Fairchild’s attorneys, said in a statement to the Pardon and Parole Board. “Yet despite having lost touch with reality, Richard remains remorseful for his crime and continues to have an unblemished prison record. There is no principled reason for Oklahoma to execute him.”
Fairchild’s attorneys filed last-minute appeals Wednesday with Oklahoma’s Court of Criminal Appeals and the U.S. Supreme Court, but both courts denied his requests Thursday.
Also Thursday, the Oklahoma Court of Criminal Appeals denied a request from death row inmate Richard Glossip for a hearing to determine whether a co-defendant sought to recant his testimony that Glossip hired him to kill motel owner Barry Van Treese. Glossip’s execution is scheduled for February.
Glossip’s attorneys allege evidence was withheld by prosecutors, including interviews with witnesses. The court rejected a similar request by Glossip earlier this month and on Thursday ruled that the matters are not eligible for review because they either were settled previously by courts, could have been presented in earlier appeals or were not raised within 60 days of their discovery.
The U.S. has seen waning support in recent years for the death penalty across all political parties. About 6 in 10 Americans favor the death penalty, according to the General Social Survey, a major trends survey conducted by NORC at the University of Chicago. While a majority continue to express support for the death penalty, the share has declined steadily since the 1990s, when nearly three-quarters were in favor.
__
By SEAN MURPHY Associated Press
Associated Press reporter Ken Miller in Oklahoma City contributed to this report.
from Courthouse News
Wednesday, November 16, 2022
FTX investors sue cryptocurrency executive and his celebrity endorsers after going bankrupt
MIAMI (CN) — An Oklahoma attorney filed a lawsuit Tuesday night against Sam Bankman-Fried, the CEO of one of the world’s largest cryptocurrency exchanges, along with multiple of his paid celebrity endorsers including Tom Brady and his model ex-wife Gisele Caroline Bündchen and Shaquille O’Neal.
30 year-old Bankman-Fried announced Friday that he was resigning from his company FTX and filing for bankruptcy after failing to raise cash to solve liquidity issues, leaving millions of investors angry and empty handed.
After the company’s sudden collapse over just a few days, the money in customer’s accounts is now frozen.
The suit, filed in Florida by Edwin Garrison, accuses FTX of devising a fraudulent scheme to “take advantage of unsophisticated investors from across the country,” causing $11 billion in damages.
Garrison further seeks to hold several of the company’s famous athlete and entertainment endorsers accountable for convincing customers to purchase cryptocurrency through FTX. Some of the names mentioned in the suit include professional tennis player Naomi Osaka, Boston Red Sox star David Ortiz, the Golden State Warriors NBA team, which promoted the company around San Francisco’s Chase Center, as well as their star player Stephen Curry.
“The Deceptive FTX Platform maintained by the FTX Entities was truly a house of cards, a Ponzi scheme where the FTX Entities shuffled customer funds between their opaque affiliated entities, using new investor funds obtained through investments in the yield-bearing accounts and loans to pay interest to the old ones and to attempt to maintain the appearance of liquidity,” wrote Garrison.
The attorney claims that these FTX partners violated federal security laws by failing to perform any “due diligence” prior to their marketing of the company and by not disclosing the full amounts they were being paid in exchange for their promotions.
He points out that the U.S. Securities and Exchange Commission took action against boxing champ Floyd Mayweather and music producer Dj Khaled in 2018 for similar “touting violations” after they failed to disclose payments they received by cryptocurrency issuers to promote Initial Coin Offerings on Twitter.
The SEC also went after Kim Kardashian in October, forcing her to pay $1.26 million in penalties for touting on social media a crypto asset security from EthereumMax without disclosing how much they paid her.
One of the nation’s most well known lawyers, David Boies, whose represented Al Gore in the 2000 Supreme Court election dispute as well as some of the victims of Jeffrey Epstein, joined Wednesday to represent Garrison’s claims.
Just days before the seemingly stable crypto exchange plummeted, the CEO of rival crypto exchange Binance, sold about $530 million worth of an FTX-issued crypto token after discovering they “mishandled customer funds,” causing other large scale investors to withdraw $5 billion in funds.
Bankman-Fried sent out a tweet last week that said, “I’m sorry. That’s the biggest thing. I fucked up should have done better.”
The SEC as well as the Justice Department and Commodity Futures Trading Commission have launched investigations into FTX to see if the exchange properly safeguarded consumer deposits and relationships with trading affiliates.
On Wednesday, the House Financial Services Committee said they will be holding a hearing on the crash, where Bankman-Fried and other representatives from the company will testify before Congress.
Cryptocurrency surged in popularity during the pandemic with millions of new investors. But as inflation intensified the cost of living and federal interest rates hiked over 2022, many investors have pulled their deposits out of the increasingly volatile industry.
This has caused the value of bitcoin and other tokens to fall significantly to about $17,000 from last year’s $68,000.
Other key crypto institutions such as hedge fund Three Arrows Capital, lenders Voyager Digital and Celsius Network and stablecoin issuer Terra Luna, have all also quickly bottomed out over the past year
BlockFi, a New Jersey-based crypto lending platform that received a $250 million bailout from FTX in June, said in a statement last week that they are halting customer withdrawals, “given the lack of clarity on the status” of the platform.
from Courthouse News
Monday, November 14, 2022
Google reaches $392M settlement over location data
(CN) — Google joined attorneys general in 40 states on Monday in announcing the settlement of a lawsuit accusing the company of violating consumer protection laws by recording and sharing user location data without comprehensive disclosures or the ability to easily opt-out.
The tech giant will pay $391.5 million to settle the claims, as well as take measures to ensure information about the data is more transparent.
The settlement agreement states that between 2014 and 2019, “Google misrepresented and omitted material information regarding the location history and web & app activity settings … [confusing] users about how location information would be captured, stored and used without users’ knowledge or consent.”
During that time, even if a user had turned off location history, Google continued to track their location through other account settings, other apps or device-level features, Wi-Fi and Bluetooth scans and IP addresses, among other methods, according to the agreement. The company is said to have learned about user movements through apps including Google Maps, Google Play and YouTube, even if the user was not signed into their account.
Google did not admit to any wrongdoing as part of the settlement.
Under the agreement, Google will post pop-up notifications to users who have location history or web and app activity enabled at the time of the notification “disclosing whether these settings collect location information and instructing users how to disable each setting, delete the data collected by the settings, and set data retention limits.”
Along with other concessions, the company will maintain a dedicated web page with comprehensive details about its location data practices and user rights and controls, while it has also agreed to certain limitations on the use and retention of location data. For example, Google must refrain from providing a user’s precise location to third parties without express affirmative consent. Google will automatically delete most personally identifying location data between 30 and 180 days after it was collected and submit annual compliance reports for a period of four years.
In a statement Monday, Louisiana Attorney General Jeff Landry called the agreement “the largest multistate attorney general privacy settlement in the history of the United States,” adding his state will receive $12.7 million.
“I have been ringing the alarm bell on Big Tech for years, and this is why,” Landry said. “Citizens must be able to make informed decisions about what information they release to Big Tech. Additionally, Big Tech must recognize the limitations in their collection efforts as it relates to various state laws.”
Landry credited a 2018 Associated Press article for the states’ investigation, adding that Google uses location data to financially benefit from targeted advertising sales.
A statement from Google on Monday noted the company has provided its users more “choice and transparency” about location data in recent years, including the introduction of auto-delete controls, incognito mode and tools to show how location data is collected and shared.
“Consistent with those improvements, we settled an investigation with 40 U.S. state attorneys general based on outdated product policies that we changed years ago,” the statement read. “As well as a financial settlement, we will be making updates in the coming months to provide even greater controls and transparency over location data. Today’s settlement is another step along the path of giving more meaningful choices and minimizing data collection while providing more helpful services.”
Other updates under development include clear and concise disclosures, simplified comprehensive location history deletion and more up-front information for new accounts.
Arizona first sued Google over the location tracking in state court in 2020. It reached an $85 million settlement with the company last month, but that didn’t resolve claims that had since been filed by attorneys general in other states.
Louisiana was joined in Monday’s settlement by Alabama, Alaska, Arkansas, Colorado, Connecticut, Delaware, Florida, Georgia, Hawaii, Idaho, Illinois, Iowa, Kansas, Kentucky, Maine, Maryland, Massachusetts, Michigan, Minnesota, Mississippi, Missouri, Nebraska, Nevada, New Jersey, New Mexico, New York, North Carolina, North Dakota, Ohio, Oklahoma, Oregon, Pennsylvania, South Carolina, South Dakota, Tennessee, Utah, Vermont, Virginia and Wisconsin.
from Courthouse News
Tuesday, November 8, 2022
‘Disinformation’ can be a crime, 1st Circuit rules
BOSTON (CN) — New Hampshire lawmakers did not run afoul of the Constitution in making it a crime to ridicule people with false statements, the First Circuit held Tuesday, but a concurring judge said it’s time for the Supreme Court to overrule its precedent in this area.
“The case could be a vehicle for the Supreme Court to revisit the doctrine of criminal defamation for the first time in more than 50 years,” said Jeffrey Hunt, a First Amendment expert at Parr Brown in Salt Lake City, Utah.
It was in 1964 that the Supreme Court held defamation can be a crime while looking at the prosecution of New Orleans District Attorney Jim Garrison for verbally attacking a number of judges. Garrison was famously portrayed by Kevin Costner in Oliver Stone’s 1991 film “JFK.”
In a concurring opinion Tuesday, however, U.S. Circuit Judge O. Rogeriee Thompson called it time to revisit that idea.
Such laws “cannot be reconciled with our democratic ideals of robust debate and uninhibited free speech,” Thompson opined.
“These laws have their genesis in undemocratic systems that criminalized any speech criticizing public officials,” she added. “It strikes me as out of touch with reality to suggest these laws are not being selectively harnessed or that these laws aren’t particularly susceptible to … abuse.”
The ruling comes less than three months after the Department of Homeland Security disbanded its Disinformation Governance Board, which had attempted unsuccessfully to federalize the policing of false statements.
Today’s case out the New Hampshire Supreme Court involves a comment posted online to a newspaper article. Robert Frese, 67, who lives in a trailer park in Exeter, accused the police officer described in the piece of being corrupt, and he said the officer’s daughter was a prostitute.
After he was arrested for the comment, state law said he wasn’t entitled to a jury trial or a court-appointed lawyer. Ultimately, however, the charges were dropped. Frese and the ACLU in turn brought a lawsuit to strike down the law proscribing false statements that expose someone to “public hatred, contempt or ridicule.”
On the First Amendment issue, the First Circuit said it was bound by the Supreme Court’s 1964 precedent. The 27-page ruling by U.S. Circuit Judge Jeffrey Howard also rejects the ACLU’s claim that the law was unconstitutionally vague.
The statute “provides adequate guidelines for law enforcement,” Howard wrote. “We doubt that reasonable persons will have much difficulty in ascertaining objectively whether a false statement exposes the victim to public hatred, contempt, or ridicule.”
Frese was also charged in 2012 and had to pay a $372 fine after he called someone’s life-coaching business a “scam” on Craigslist,. The police claimed there was no evidence that his statements were true, but the New Hampshire Department of Justice stepped in after the case generated local publicity. It said that, even if the statements were false, Frese shouldn’t be prosecuted if he believed they were true.
Criminal defamation laws developed as part of the “star chamber” proceedings against Henry VIII’s political enemies. In the U.S. they were originally seen as a less drastic alternative to dueling, but their popularity gradually waned due to the First Amendment and the availability of civil suits for libel.
Today 13 states still have such laws: Idaho, Kansas, Louisiana, Michigan, Minnesota, New Hampshire, New Mexico, North Carolina, North Dakota, Oklahoma, Utah, Virginia and Wisconsin. Another dozen or so states criminalize hate speech against minorities.
Michigan, Oklahoma and Virginia specifically prohibit questioning a woman’s chastity, although the fine for calling a woman a slut in Oklahoma is only $25.
In New Hampshire, police can decide whether to prosecute someone for defamation without a neutral magistrate being involved — which the ACLU claims creates a conflict of interest when a person is accused of disparaging the police.
A common criticism of criminal defamation laws is that they’re frequently used to silence political opposition, as they were in Henry VIII’s day. A study in a Texas law review found that nearly half of such prosecutions are “basically political,” and another study of 77 cases from 1965 to 2002 found 68.8% were about public figures and matters of public concern, with cops and politicians being the most frequent complainants.
“It’s hard to square the concept of seditious criminal libel embedded in the New Hampshire statue with our modern conception of the First Amendment and its robust protections for political speech,” Hunt said.
In one recent case in Georgia, a woman was arrested and put in jail after she griped on Facebook that her husband, a sheriff, wouldn’t go out and buy Tylenol for her child who had the flu. The case was thrown out because Georgia’s criminal defamation law had previously been repealed.
According to the ACLU, prosecutions for criminal defamation are on the increase as a result of social media, which makes it easier for police and others to know who is criticizing them — a development highlighted by Thompson in her concurrence.
“When, as has been the case in this country of late, the truth often seems up for grabs and objectively accurate facts are tossed aside in favor of alternative versions that suit a given narrative, drawing the line between truths and lies — and malicious lies at that — is exceptionally tricky,” wrote Thompson, an Obama appointee.
“There is no readily discernible boundary between what gossip or loose talk amounts to being criminal and that which does not. … And this is troubling because it underscores the simple truth that a criminal defamation law can be wielded, weaponized by a person who disagrees with whatever speech has been uttered.”
from Courthouse News
Friday, November 4, 2022
US jails rife with violence, abuse and overcrowding
(AP) — In California, lawyers accused staff at the Los Angeles County jail of chaining mentally ill detainees to chairs for days at a time. In West Virginia, people held in the Southern Regional Jail sued the state, saying they found urine and semen in their food. In Missouri, detainees in the St. Louis jail staged multiple uprisings last year, while in Texas, a guard at Houston’s overcrowded Harris County Jail said she and her coworkers had started carrying knives to work for fear that they wouldn’t have backup if violence broke out.
And while the infamous Rikers Island jail complex in New York City has been the focus of media coverage for its surging number of deaths, rural and urban lockups from Tennessee to Washington to Georgia are not faring much better.
In other words, America’s jails are a mess.
“It’s hard to believe, but it seems jails are even more wretched than usual these last few months,” said David Fathi, director of the American Civil Liberties Union’s National Prison Project. “Having worked in this field for 30 years, I don’t remember any other time when there seem to be so many large jails in a state of complete meltdown.”
Several lockups denied claims about deteriorating conditions or did not respond to requests for comment. A few, including Rikers, acknowledged problems such as infrastructure issues, detainee deaths and high staff attrition.
“We are working hard to stem the rippling effect of years of mismanagement and neglect within our city’s jails,” a spokesperson for the New York City Department of Correction, which runs Rikers, said in a statement. “Turning our jails around requires a collaborative effort, transparency and time.”
Unlike prisons, most jails are funded and managed locally, so the problems they face can vary widely from one county to the next. While there’s crumbling infrastructure in Atlanta’s Fulton County Jail, there’s been murky brown drinking water in Seattle’s King County Jail and overcrowding in Houston because of a backlog in the court system.
But more than a dozen employees, detainees and experts who spoke with The Marshall Project and The Associated Press highlighted two problems they’ve seen at jails across the country: too many people incarcerated, and not enough guards.
“Our jail facilities are at capacity,” said David Cuevas, president of the Harris County Sheriff’s Office deputies’ union. “It is truly not safe.”
The twin issues of overcrowding and understaffing have plagued jails across the country for years, and even before the pandemic many facilities were in disarray. Yet in the months after Covid-19 hit, the number of people in local lockups plummeted. People stayed home and committed fewer crimes. Police did not make as many arrests. Courts reduced bail. And jails let more people go home early. Nationally, the number of people in jail decreased by about 25% by the summer of 2020, according to data compiled by the federal Bureau of Justice Statistics.
But as concern about the virus faded, so did many of the measures designed to combat it — and soon jail populations began to rise. By the summer of 2022, many lockups held more people than they had in years, or became so overcrowded that detainees were forced to sleep on floors, in underground tunnels or in common areas without toilets.
“Everyone is on edge because it is crowded,” one man detained in Los Angeles wrote in a sworn declaration filed as part of a lawsuit by the American Civil Liberties Union. “The place smells of urine and excrement because some toilets don’t work, and people who are chained to chairs sometimes pee on the floor because the deputies won’t unchain them.”
Celia Banos, whose son was one of the people chained to a bench for several days, told The Marshall Project that she was shocked to learn how little the jail had done to take care of him.
“His condition has deteriorated in there,” Banos said. Though her son — who has schizophrenia — has been incarcerated before, she said this time the jail seemed to be getting worse.
Some jails found that they still needed to use isolated cells to quarantine potentially sick prisoners. A jail official in Houston said that meant cells that once held two or three people might only be able to hold one, and detainees with a record of violence couldn’t be separated from the general population as easily.
But even as the number of detainees increased, the number of guards did not. Just like state prisons, many local lockupssaw a rise in officer vacancies — sometimes even at facilities that appeared fully staffed on paper. The City, a nonprofit news outlet in New York, reported last year that more than 1,000 Rikers Island guards were calling out sick every day due to a frequently abused policy allowing unlimited sick leave.
“The things that led to the Great Resignation were happening in jails, too: It was a depressing time, and lots of people were getting sick,” Vincent Schiraldi, a former New York City jail commissioner, said in an interview.
The guards’ union has disputed that members overuse sick leave, saying they are legitimately absent, often due to on-the-job injuries and exhaustion. In October, the jail said it still had as many as 800 employees out at a time.
With fewer officers, those who remain are often forced to work longer hours, including double, triple and even quadruple shifts. Guards in Cleveland said they didn’t have time to eat, while some jail workers in Houston reported urinating in bags when they couldn’t find someone to replace them at their posts.
Having fewer jail employees can also make life worse for detainees because there are fewer workers to let them out of their cells, take them to court, teach their educational programs or tend to their most basic needs.
In Houston, a man in one of the jail’s isolation units said violence sometimes broke out after guards didn’t let them out to shower for days at a time, while in Philadelphia — at a lockup with a 36% staff vacancy rate — incarcerated people said they couldn’t always get meals or toilet paper. (A jail spokesman “categorically denied” that allegation.) In Ohio, local media reported that guards at Cleveland’s Cuyahoga County Jail have taken to locking people in their cells 23 hours a day because there aren’t enough staff.
And in one extreme example, a man detained at the Oklahoma County jail in Oklahoma City is accused of raping a handcuffed woman after guards at the understaffed facility left them unsupervised during booking. A detention officer at the troubled facility, which the county took over from the sheriff two years ago, eventually intervened, and the man was later charged with first-degree rape. A jail official said that no disciplinary measures against staff have been announced, but the matter is still under investigation.
According to Andrea Armstrong, a law professor at Loyola University New Orleans who studies deaths in jails and prisons, staffing problems are particularly dangerous when it comes to medical care.
“We are seeing increased mortality in jails, and they are the types of deaths that could have been avoided if the person had better access to emergency care,” she said.
In February, a man at Rikers Island choked on an orange and died after staff failed to intervene in time. He was one of eighteen people who have died in the city’s jails this year. Two months later, a detainee at the jail in Anoka County, Minnesota, died in his cell after the guards could not find any medical staff on duty to save him. In Houston, the family of a man who caught Covid-19 and died alone in his cell last year sued the jail. According to the family’s lawyer, U.A. Lewis, none of the staff noticed the man was dead until officers came to get him for a visit.
Despite the consensus among experts that conditions are deteriorating in many lockups, there’s far less agreement on solutions. While jails officials said they needed basic infrastructure improvements and more staff, some prisoner advocates point out that more lenient bail policies could help ensure fewer people stay behind bars when they don’t have money to pay for their freedom.
In the meantime, researchers say they need better information from the jails to be able to measure the scope of the problem.
“There’s so little data out there,” said Michele Deitch, a law professor at the University of Texas at Austin who studies jails and prisons. “We literally do not have the means to assess the safety or dangerousness of a facility in any comparative way.”
Some of the starkest examples of poor conditions — like semen-tainted food or brown drinking water — aren’t easy to measure.
Even for those things that can be measured — like overcrowding, understaffing or an increase in jail deaths — the available numbers are often years delayed and unreliable. For example, the U.S. Department of Justice said that its annual in-custody death reports undercounted jail deaths by at least 39%. And although the federal government issues an annual report about the number of people in jails nationwide, the most recent data is more than two years old.
Experts said that lack of data makes it hard to say how much of the growing alarm now actually reflects a change in jail conditions and how much is the result of heightened interest from media and the public.
But they say that so far, that increased concern has not translated into better conditions.
“It is horrible in here,” another detainee in Los Angeles wrote in a sworn declaration. “In fact, it is worse than being homeless. Even when I sleep on the streets, there is some room to stretch out. But in here, there are so many people walking by you or sleeping next to you that I’d rather be on the streets.”
___
By KERI BLAKINGER The Marshall Project/Associated Press
Blakinger and Rachel Dissell in Cleveland reported for The Marshall Project. Associated Press writers Ken Miller in Oklahoma City and Claudia Lauer in Philadelphia contributed to this report.
from Courthouse News
Friday, October 28, 2022
Deaths of 8 in burned Oklahoma home investigated as murder-suicide
(AP) — The deaths of eight family members — including six children — found in a burning Oklahoma home are being investigated as a murder-suicide, authorities said Friday. Police are trying to determine whether both adults were involved in the killings.
The children, who ranged in age from 1 to 13, were the victims, Broken Arrow Police Chief Brandon Berryhill said during a news conference. He did not provide their identities, ages or explain their relationships to one another except to say they were family members believed to be living in the home.
Police said both adults who live in the home were considered “primary suspects” because they were found dead in the front of the home while the children were all found in a bedroom, where the fire was contained. A police spokesman declined to say whether authorities believe the two adults were both responsible for the killings or whether it could be just one of them.
“It’s because investigators are still trying to piece together what happened with eight people dead,” police spokesman Ethan Hutchins said in an email to The Associated Press.
Hutchins also said police would not be able to identify the dead adults until the medical examiner’s office has completed its work.
The causes of death are still under investigation but Broken Arrow Fire Department Chief Jeremy Moore said it doesn’t appear that anyone died because of the fire. Guns were recovered from the home, the police chief said.
“To arrive on scene yesterday and to see the looks on our first responders’ and firefighters’ faces just absolutely broke my heart,” Moore said Friday.
Sara Abel, a spokeswoman for the Bureau of Alcohol, Tobacco, Firearms and Explosives, said the agency is assisting local police in tracing guns found in the home but she did not have any details about the type or number of firearms.
The fire was reported about 4 p.m. Thursday in a quiet residential area of Broken Arrow, Oklahoma, 13 miles (20 kilometers) southeast of Tulsa.
The two adults found dead in the front of the house had injuries that “appeared to be criminal in nature,” Moore said.
The children were found dead in another area of the home, he said.
A week ago, a similar tragedy occurred in Wisconsin, where four children and two adults were found in a burning apartment in a suspected murder-suicide.
In Broken Arrow, Catelin Powers said she was driving with her children nearby when she saw a column of smoke near her house, so she drove past to investigate.
“When I got closer to the house, I saw smoke pouring out from the very top of the house, which looked like maybe the attic,” she told The Associated Press on Thursday.
Two men and a woman on her phone were standing in front of the house, Powers said, when another man emerged from the front door dragging an apparently unconscious, unresponsive woman. “Her arms were flopped to her sides,” she said.
Suspecting the woman was dead, Powers said she drove on so her children would be spared the sight.
Tragedy has struck before in Broken Arrow, which is Tulsa’s biggest suburb with almost 115,000 residents. In 2015, two teenaged brothers killed their mother, father, two younger brothers and 5-year-old sister at their home — which was about 6 miles (10 kilometers) south of Thursday’s fatal fire.
The home where the 2015 killings occurred was later demolished and the site was transformed into a community park.
__
By JILL BLEED and SEAN MURPHY Associated Press writers
Associated Press reporters Jake Bleiberg and Terry Wallace in Dallas contributed to this report.
from Courthouse News
Thursday, October 27, 2022
McKinsey & Company remains on hook in class action over opioid crisis
SAN FRANCISCO (CN) — Global consulting firm McKinsey & Company must face multidistrict litigation seeking to hold it accountable for its part in fueling a nationwide opioid crisis with aggressive marketing strategies, after a federal judge found it cannot use jurisdictional grounds to escape liability.
McKinsey is accused of devising strategies for its client, Oxycontin maker Purdue Pharma, that boosted sales of high-dose pills with deceptive messaging to doctors that downplayed the risks of addiction.
The plaintiffs are private citizens, city governments, Native American tribes, school districts, and children with neonatal abstinence syndrome from opioid exposure in the womb. They are from 19 states: Alaska, Arizona, Colorado, Hawai’i, Indiana, Kentucky, Louisiana, Maryland, Mississippi, Montana, New Mexico, Oklahoma, Oregon, Tennessee, Utah, Virginia, Washington, West Virginia, and Wisconsin, and the cases have been consolidated into a multidistrict litigation.
The plaintiffs argued that McKinsey consultants conducted extensive research that helped Purdue carry out a targeted marketing plan to increase sales.
“McKinsey’s documents contain email after email describing its consultants riding along with Purdue’s sales team visiting doctors, including in Tennessee, Maryland, Indiana, Louisiana, and other states where McKinsey claims it did not work. For example, Purdue arranged to have a McKinsey consultant spend a day working with a sales representative in Tennessee,” a recent court filing says. “Don’t think McKinsey didn’t know the consequences of its field research and doctor targeting. McKinsey analyzed those, too, developing a method for Purdue to identify abuse and diversion hot spots — but without ever acting to address them. McKinsey knew exactly the places it was targeting and where the harms of its work impacted communities.”
U.S. District Judge Charles Breyer, who is overseeing the sprawling case, sided with the plaintiffs in a ruling Thursday.
“Plaintiffs have established that McKinsey committed intentional acts directed toward the subject states,” he wrote. “McKinsey performed numerous acts directed at the subject states. These acts included creating granular analyses of market attractiveness of the subject states, creating target lists of prescribers in the subject states, working alongside Purdue sales representatives in the subject states, and working with Purdue to implement sales strategies in the subject states.”
In its bid to fend off negligence, fraud, public nuisance, and state consumer protection claims, McKinsey claimed it never manufactured, distributed or sold prescription painkillers in any of these states, nor has it ever interacted with any of the plaintiffs, “much less made any representations to them about opioids.”
Accordingly, “McKinsey is not subject to expansive nationwide personal jurisdiction in the same way that other defendants in other opioid-related litigation may be,” the company said.
In rejecting that argument, Breyer wrote, “McKinsey effectively contends that it can help Purdue develop and manage strategies to increase opioid sales in the subject states, but that it cannot be subject to jurisdiction when those strategies result in increased opioid sales that cause harm in the subject states.”
The judge determined the plaintiffs showed more than random negligence. “To the contrary, plaintiffs plausibly allege that McKinsey’s actions significantly contributed to the wide-ranging harms that have affected the subject states,” he wrote. “McKinsey is more akin to an advertising agency that advised a manufacturer on how to sell boilers to residents of specific states, despite knowing that the boilers carried a significant risk of exploding. There is no random or attenuated chain of contacts here. Plaintiffs have plausibly alleged that McKinsey intentionally and purposefully directed contacts at the subject states for several years.”
He also found the plaintiffs had adequately asserted that McKinsey’s methods to increase opioid sales caused foreseeable harm because their consultants delivered presentations to Purdue that mentioned prescribers’ concerns about opioid abuse, and even worked with Purdue to “counter emotional messages from mothers with teenagers that overdosed in [sic] OxyContin.”
Breyer’s ruling allows the litigation to move forward, though McKinsey will likely try to get it dismissed on the merits.
Attorneys for the parties did not respond to requests for comment by press time.
The decision comes just as the firm announced it had reached an agreement to settle lawsuits brought by school districts and local governments. The details of the agreement have not been made public, but the parties expect to have an update for Breyer at a hearing in December.
McKinsey also admitted no wrongdoing as part of a nearly $600 million settlement with 47 states, the District of Columbia and five territories last year.
from Courthouse News
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