Deep Thoughts Department: Justice Gerrard tells Duke students, "Lawyers are People Too!"(Jack Handy, Guest Blogger) What would people think Blog.Nebraska Supremes Justice Gerrard spoke to liberal evangelicals (yes I guess they're out there) at Duke University where his daughter studies. Bet the following hypotheticals have perplexed you ever since to you passed the bar exam: "How can you be a Christian and a lawyer?" "how can you be a good person and a lawyer?" The good Justice Gerrard inspired the blogging student:

J. Gerrard argued, and I agree, that we as lawyers have a responsibility beyond mere legal advocacy to improve the lives of our clients. As Christian lawyers, especially, we must love them with the same zeal that Christ loved the prostitutes, swindlers, drunkards, beggars, lepers, and outcasts.

In other words our clients; BTW I need another $5K retainer to go to trial.

United States Supreme court (per curiam opinion) allows citizen challenges to Colorado's court-imposed Congressional redistricting mapLance et al v Dennis, Colorado Secy State. #05555 Feb 22, 2006. The federal court in Colorado dismissed citizens' suit to stop the continued use of a redistricting map the Colorado supreme court had imposed for the 2002 elections. The federal court had earlier dismissed the Colorado attorney generals claim that the state court imposed map violated Federal Constitutional requirements that state legislatures draw district boundaries. Elections Clause of Article I, §4, of the U. S. Constitution ("The Times, Places and Manner of holding Elections for Sena-tors and Representatives, shall be prescribed in each Stateby the Legislature thereof"), and the First Amendment'sPetition Clause ("Congress shall make no law . . . abridg- ing . . . the right of the people . . . to petition the Govern-ment for a redress of grievances"). The supreme court finds that the citizens lawsuit is not barred under the Federal Rooker Feldman doctrine: We now note jurisdiction, and address whether the Rooker-Feldman doctrine bars the plaintiffs from proceedingbecause they were in privity with a party in Salazar. Weconclude it does not, and vacate the judgment of the Dis-trict Court. Although the citizens could in some sense be in privity with the state's representative, the attorney general, the Supreme Court finds they werenot in privity for Rooker Feldman purposes:

The Rooker-Feldman doctrine does not bar actions by nonparties to the earlier state-court judgment simply because, for purposes of preclusion law, they could be considered in privity with a party to the judgment...Incorporation of preclusion principles into Rooker-Feldman risks turning that limited doctrine into a uniform federal rule governing the preclu-sive effect of state-court judgments, contrary to the FullFaith and Credit Act.

Follow up: United States Supreme Court certs Eighth Circuit-Nebraska Federal District Court case on federal partial-birth abortion ban; does judicial trump congressional factfinding?Scotus Blog. Scotus may yet have to face down the partial birth abortion controversy, having sidestepped challenging the Stenberg v Carhart holding that any abortion regulation must contain a "health(not just life) of the (aborter)" in the Ayotte case. The Nebraska partial birth abortion law's big federal brother Pub. L. No. 108-105, 117 Stat. 1201 (codified at 18 U.S.C. § 1531) will go up for cert review to the Supreme Court however, also the fruit of Judge Kopfs good services to Dr Carhart. The Eighth Circuit dismissed the government's contention that Congressional findings could overrule earlier judicial factfindings, in this case whether Congress could find that the abortion procedure in question was not necessary for the health of the woman while the courts had found it was necessary.

In the absence of new evidence which would serve to distinguish this record from the record reviewed by the Supreme Court in Stenberg, we are bound by the Supreme Court’s conclusion that “substantial medical authority” supports the medical necessity of a health exception.

Eighth Circuit agrees with USDA that farmer's sale of corn to his brother that stayed in his silo did not count as "delivery"; USDA forces farmer to repay marketing loan at higher rate Clason v.Johanns Case No. 051547P.pdf 02/22/06 District of Nebraska Farmer received marketing loan from USDA, which allowed him to repay loan at lower interest rate if he did not sell all the corn and the price declined below a set level. Farmer contended that before the deadline he sold corn to his brother but kept the corn in his silo. Farmer claimed the corn was "constructively delivered". Eighth circuit disagrees and holds that the USDA was could adopt regulations requiring physical delivery, even if local Farm Service Agency rep told farmer he could "constructively deliver" the corn.

National Appeals Division of Department of Agriculture's interpretation of regulations and forms concerning delivery of commodities was reasonable and entitled to deference; government was not estopped from requiring physical delivery of the commodities onthe ground that a employee allegedly told plaintiff constructive deliveryof the commodities was sufficient.

the NAD determined that the "delivery" required by CCC-681-1 was physical delivery. This was not plainly erroneous. The regulations governing these transactions during the relevant time period referred to the "removal of" and"moving" of farm-stored commodities. See 7 C.F.R §§ 1421.20(a), (e); 1421.23(b)

Senator Fischer introduces bill to allow parties to request juries to decide child custody casesNebraska Unicameral. LB 886 amends Sec. 42-364 RRS Neb. to add the rights of either party to a divorce case to request a jury trial for child custody disputes. LB886, Section 2:

For the determination of custody arrangements and the time to be spent with each parent, each parent has the right to a jury trial and may request such. Thedetermination shall be based upon the court shall consider the best interests of the minor child

Some judges arent too happy about this, fearing that adding more cases eligible for jury trials will clog their dockets even more. ON the other hand, if it gets harder to take child custody cases to court, maybe more will settle. In the unlikely event a good law like this ever passes however, the legislature should think about changing the Supreme Court's standard of review for child custody cases, as it will do little good to give decision making power to juries only to have capricious appellate judges' overruling them with the power to review cases de novo.

Nebraska court of appeals (J. Sievers) approves of defendants 12b6 motion to dismiss medical malpractice case with blown statute of limitations; Plaintiff had no valid "continuing treatment" excuse for her late filingHampton v. Shaw, 14 Neb. App. 499 Filed February 21, 2006. No. A-04-819 Plaintiff filed complaint under Nebraska notice pleading rules, See Nebraska Supreme Court Rules of Pleading against physician who performed abdominal surgery. The plaintiff filed her complaint more than two years after the doctor completed the surgery, and the defendant filed his 12b6 motion to dismiss, alleging the statute of limitations, 44-2828 barred her action. The court of appeals affirms, overruling Plaintiffs contention that the "continuing treatment" rule extended her filing period. The "continuing treatment" rule that tolls the statute of limitation against a medical professional must involve either a misdiagnosis upon which incorrect treatment is given or when there has been a continuing course of negligent treatment. Frezell v. Iwersen, 231 Neb. 365, 369, 436 N.W.2d 194, 198 (1989. The Court of appeals finds Hampton failed to allege a continuing treatment situation because her complaint alleged negligence in her surgery which the doctor completed on a specific date. The continuing treatment came from another doctor's removing surgical staples from her abdomen. This amounts to isolated intermittent acts of alleged negligence that do not qualify for either treatment following a misdiagnosis, nor an ongoing course of malpractice. Casey v. Levine, 261 Neb. 1, 10, 621 N.W.2d 482, 489 (2001) and Frezell , 231 Neb 365.

Nebraska Court of Appeals (J. Inbody) allows streamlined records for using uncounseled convictions to enhance punishment in later proceedings. Following US Supreme Court Iowa v Tovar, Court need only advise the defendant of the right to counsel, the nature of the charges and the range of punishments State v. Brown, 14 Neb. App. 508 February 21, 2006. No. A-05-683. Trial courts taking uncounseled guilty pleas from defendants wont need to run through a long laundry list of all the good things an attorney can do for the defendant. Defendant objected to enhancing his driving while intoxicated charges with an uncounseled prior conviction The trial judge in the earlier proceeding lined out certain items on a docket sheet checklist, pertaining to juvenile court transfer, "Defendant's Presumption of Innocence; State's Burden of Proof Beyond Reasonable Doubt. Thus, the question before this court is whether the county court's alleged failure to advise Brown of the presumption of innocence and the State's burden of proof beyond a reasonable doubt rendered Brown's September 2000 waiver of his right to counsel involuntary. Iowa v. Tovar, 541 U.S. 77, 124 S. Ct. 1379, 158 L. Ed. 2d 209 (2004) holds that in a collateral attack on an uncounseled conviction, the defendant must prove that he did not competently and intelligently waive his right to the assistance of counsel." When the trial court informs the accused of the nature of the charges against him, of his right to be counseled regarding his plea, and of the range of allowable punishments attendant upon the entry of a guilty plea, it satisfies the Defendants constitutional right to an intelligently waived right to counsel. the county court's September 2000 journal entry and order establishes that Brown was informed by the county court as to the nature of the charge against him, of the possible penalties, and of his right to counsel. The fact that other portions of the rights advisory were crossed out did not render Brown's waiver of his Sixth Amendment right to counsel involuntary.

Who is Waskar Ari (Chachaki)? A terrorist's fellow traveler

Lincoln Journal Star ran this story Saturday about the paranoid over zealous Bush Administration's, swooning with Patriot Act powers denying to a simple academic and activist for Bolivia's "indigenous" peoples a visa to teach at the University of Nebraska. Turns out theres more than meets the eye, at least to any Nebraskan who is not enthralled by our liberal professors and the compliant University Administration. The administration is too busy trying to force out Hergert than keeping security risks out of its grid squares. Waskar T Ari (Chachaki) He received his BA in Sociology from the Universidad de San Andres in La Paz, Bolivia.and he also studied an MA in Political Science and have published several articles and books in Bolivia. For instance, in 1994 he published Historia de Una Esperanza, a book on economic change and the making of new tradition. He co-authored Tata Fermin (1996), a book on the Indian leader Fermin Vallejos and indigenous movements in the southern part of Cochabamba. He also edited Aruskipasinasataki: The Twenty-First Century and the Future of the Aymara Nation (2001), a book on the collective human rights of Aymarapeoples. As an Aymara activist, he founded the Kechuaymara Foundation in La Paz and other 7 grassroots organizations in Bolivia and Peru. In addition, he was the first director of the largest Internet site on Aymara peoples.Aymara Net. Dr Waskal champions a form of democracy for indigenous peoples that disregards hidebound respect for elections, much less for basic law and order, as he described in an internet aritcle "Aymara Rage, June 20004:"

In Ilave, a town of 90,000 near Lake Titicaca, some 560 miles southeast of Lima, the capital, lawfully elected Mayor Cirilo Robles was pulled out of a town council meeting, dragged several blocks, and beaten to death in the town square by an enraged mob on Apr. 26, the 25th day of a strike demanding that he resign.

Nevertheless, Waskar Ari justified the lynching: "The reaction by the Aymaras in Ilave "should not surprise anyone," said Bolivian Aymara historian, sociologist, and activist Waskar Ari Chachaki."The Aymara have a long tradition of collective government. For them democracy must be direct. It is not enough for them to go and vote every four or five years. They demand constant participation in decision-making," Waskar also favors ethnic "cleanliness:"

"In the rest of Latin America it might seem unusual for Peru’s Aymara Indians to want to separate from Lima and join Bolivia. But for us it is normal."

Segregationsists from the good old Jim Crow days might find a kindred spirit however, as he opposes racial mixing:

. " Interracial relations are "process of ethnic domestication" to be rejected by "counter-hegemonic fuerzas".

Professor Waskar expresses at best disdain for the "nation=state," labelling them artificial constructs of imperial powers, and the obstacle to native independence: When those national states (i.e. Peru, Bolivia, etc.) will disappear, "Amerindian nationalism will emerge from the ruins..." Change the date to the 1930's and the location to central europe and what do you have? http://www.frontpagemag.com/Articles/ReadArticle.asp?ID=16843

Should spouses ever file separate tax returns? Most spouses filing separately lose deductions and credits, but if one spouse is in the hole with the IRS, what else are you going to do?Kansas City Star. Even though Congress eliminated the marriage penalty, sometimes it pays for couples to re-examine how they file. There definitely are instances when filing separately might be warranted. one spouse has high medical expenses Separate returns could produce tax savings if one spouse has lots of medical expenses and a low income. By filing separately, the partner with the doctor bills might be more likely to meet the 7.5 percent threshold needed to itemize medical costs married-filing-separate taxpayers face the 28 percent, 33 percent and 35 percent brackets sooner than do single taxpayers. But at lower brackets the difference is negligible. If one spouse itemizes, both must itemize, splitting the items to be listed on a separate Schedule A for each. That means a partner with few deductions couldn’t use the standard amount and might get cheated. Many credits and deductions are forfeited. You can’t take the earned income credit, claim adoption expenses or child and dependent care costs, use educational tax credits or even deduct the interest you paid on a student loan if you’re married and filing separately. If you have children, you might find the child tax credit reduced since it phases out at different income limits for the various filing statuses. And the amount of capital gains losses you can deduct is cut in half.

Eighth Circuit approves of search warrant for firearms against defendant in Nebraska a protection order case even though defendant did not have an opportunity to challenge the protection order's filingUSA v. Merrill D. Olvey, Jr 052617P.pdf02/14/06 District of Nebraska Gruender, Author, with Bye and Beam, Circuit Judges Defendant filed a request to challenge the protectionorder against him § 42-925, but the paperwork got lost in the jail. He tried to modify the protection order, but sent his lawyer and the court turned him down. Later the FBI obtained a search warrant against him to search for firearms, owning firearms while subject to a protection order violates 18 USC 922. Eighth Circuit holds that even though the defendant might not have been able to challenge the protection order he had a chance to vacate the order under Nebraska courts' inherent authority to vacate orders and under 25-2001. Even if the Magistrate signing the warrant was wrong on interpreting Nebraska law on opening up protectionorder cases, the police could rely on his order under Leon. In this case, law enforcement relied in good faith on the magistrate judge's legal determination that the protection order as modified by the journal entry met the criteria of § 922(g)(8).

Nebraska Court of Appeals orders evidentiary hearing for second degree murder convict who pled State v. Gonzales, 14 Neb. App. 493Filed February 14, 2006. No. A-04-299. Gonzales was co defendant with Juan Leonor, see State v. Leonor, 263 Neb. 86, 638 N.W.2d 798 (2002). Gonzales pled guilty to amended charges of one count of manslaughter, one count of second degree murder, and one count of use of a deadly weapon in the commission of a felony. Gonzales sentence was 19 to 20 years' imprisonment on the manslaughter conviction, a concurrent term of 30 to 40 years' imprisonment on the second degree murder conviction, and a consecutive term of 10 to 20 years' imprisonment on the use of a deadly weapon conviction. Gonzales seeks post conviction relief alleging that he would not have taken the plea had his counsel been effective, the alleged ineffectiveness was attorney's advising Gonzales that testimony against Leonor would come up against him and lead to a conviction. Court of appeals concludes that Gonzales plea came from counsel's conclusion that damning testimony from Leonor's case would come up in his case. Appeals court probably finds hearsay problems with this and reverses for an evidentiary hearing.

The allegations of Gonzales' motion, if proven, demonstrate that Gonzales' counsel advised him that the exact same evidence used at Leonor's trial would be used in Gonzales' trial, that the evidence used at Leonor's trial which implicated Gonzales consisted entirely of testimony by witnesses of statements made by Leonor, and that the statements were admissible against Leonor because they were his own statements being offered against himself, but those statements could be argued to be hearsay if offered against Gonzales. Because no evidentiary hearing was granted, we are unable to determine why counsel might have believed Leonor's out-of-court statements would be admissible against Gonzales. Although it is entirely possible that counsel had a reason for such belief or a reason for advising Gonzales that the statements would be admissible, there is simply no way for this court to know without an evidentiary hearing, and speculation at this time would be improper. At this stage of the proceedings, there is no way for this court to know if the advice was even given, let alone whether the advice was correct. It is sufficient that the allegations of the motion, if proven, demonstrate Gonzales might be entitled to relief and that the records and files do not affirmatively demonstrate he is entitled to no relief. As such, we reverse, and remand for an evidentiary hearing on Gonzales' motion for postconviction relief.

Ohio State Professor Berman is federal Judge Bataillon's biggest fan, for his Booker rulings; can we move him to the 6th Circuit?Sentencing Law & Policy Blog.

Hall of Famer Judge Joseph Bataillon has recently produced two more important opinions on post-Booker sentencing procedure and practice: US v.Fleck, No. 8:03-cr-00194 (D. Neb. Feb. 6, 2006), and US v. Beltran-Acre, No.8:02-cr-00279(D. Neb. Feb. 2, 2006).

You have to admire how thoroughly Judge Battailon analyzed all the strings Booker left hanging, but I dont think the Supremes envisioned turning every sentencing into a mini-trial after that ruling.

Lawsuit funding companies are switching focus to loaning to attorneysPoint of Law.comLoaning money to attorneys seems to be safer and more profitable than loaning directly to the plaintiffs, one would hope. Law.com. Law firm loans on contingent fees dont run into banking regulations, as much. And apparently these companies arent running into champerty charges, as they loan only on existing cases.

Large worker compensation insurer St Paul to offer coverage to Indian TribesNew Mexico Business Journal. St Paul Insurance will being offering worker compensation coverage to indian tribes in Arizona, New Mexico and Washington. In many states, Indian Tribes are not subject to state worker compensation laws' requirements. In Nebraska Indian tribes are subject to unemployment insurance. And generally tribes in Nebraska are subject to state civil and criminal jurisdiction, according to Public Law 280, subject to State retrocession agreements.

Nebraska Supreme Court affirms traffic stop search where State Patrolman had to detain driver and three passengers and requested assistance from officers outside their counties, a common occurrence in rural areas State v. Voichahoske, 271 Neb. 64 Filed February 10, 2006. No. S-05-132. Nebraska Supreme Court upholds detention and search of vehicle and subsequent strip search of front seat passenger after traffic stop. Supreme Court rules that 29-215 which states conditions for officers to conduct arrests outside their jurisdictions does not require the officer articulate those reasons to the suspect. The Court figures it needs to give law enforcement leeway in sparsely populated areas of the state and wont require hypertechnical interpretations of 29-215, especially when meth use and traffic is on the rise there.Passenger helped conceal driver's identity, a woman who was wanted on a bench warrant. Drug dog found evidence of drug activity. The officer therefore had probable cause to search the passenger and detain him as the suspect was part of a common enterprise with the driver. See Maryland v. Pringle, 540 U.S. 366, 372, 124 S. Ct. 795, 157 L. Ed. 2d 769 (2003). The patrolman had to wait to have drug dogs from other counties come sniff the car and also had to wait to have officers from other counties assist in arrestingthe passengers. Under 29-215 RRS NE the officer requesting assistance from officers outside their jurisdiction need to have the proper reasons, such as evidence being lost, but does not need to articulate those reasons to the suspect.

Subsection (2)(c)(ii)(C) does not require that an officer requesting assistance tell the responding officer that he or she fears evidence will be lost. It asks (1) whether the suspect "may destroy or conceal evidence of the commission of a crime," § 29-215(2)(c)(ii)(C), and (2) whether an officer "needs assistance in making an arrest," § 29-215(2)(c)(ii). The statute fails to specify whether these questions are answered subjectively--what the requesting officer believed, or objectively--what a reasonable person under the circumstances could believe. But we need not decide this because both standards are met.

Councilman v The Judge, part II: Nebraska Court of Appeals resolves continuing disputes between the spouses partially in favor of both, but on balance in Jon Camps favorCamp v. Camp, 14 Neb. App. 473 February 7, 2006. No. A-04-685. On remand from the court of appeals initial decision Camp v Camp (Camp I) the Court of Appeals orders that the wife's (Judge Camp)money judgment for her share of business accounts should advance to the date of the money judgment determination, nearly 2 years after the divorce decree date. This saved Councilman Camp substantial interest and nearly a 1% cut in the judgment interest rate, hardly small change on $82K. However Councilman Camp must apply his annual property division judgment payments to Judge Camp first to accrued interest. Also Jon Camp may not claim the Court should have included certain liabilities against the business accounts before ordering a 39% share to Judge Camp because the first court of appeals ruling covered this issue (law of the case doctrine). Finally even though Judge Camp had to pay income taxes on from IRS Form K-1 distributions, she was not entitled to reimbursement from Jon. The Court figures she gets nearly $3million in property settlements without having to pay taxes on distributions, so call it good.

Laurie received a money judgment for her 39.95-percent interest in the entities, apart from the cash in the entities' checking and savings accounts. Jon was ordered to make yearly installment payments for the judgment, to continue until paid in full, with interest to accrue from April 10, 2002. Under the judgment, Laurie will receive undistributed entity income long after she has ceased paying taxes on entity income, and part of the judgment will include income for which Laurie has already paid taxes. In effect, because the judgment correlates with Laurie's interest in the entities, Laurie was awarded her share of the entities' income for which she paid taxes in 2001 and 2002; she was merely receiving it over an extended period of time. In a dissolution action, the court will consider all pertinent facts in reaching an award that is just and equitable. The ultimate test for determining an appropriate division of marital property is one of reasonableness. The division must, most of all, be reasonable. Halouska v. Halouska, 7 Neb. App. 730, 585 N.W.2d 490 (1998). Because the effect of the judgment was to award Laurie the entity income for which she paid taxes in 2001 and 2002, we conclude that the district court did not abuse its discretion in denying her request for a money judgment.

For a summary of the first Camp appeal, Camp I, see Valuation Information.com: essentially, the court of appeals in the first ruling required actual business results based on income capitalization of the business in valuing the company in the divorce. The husband did not get a discount for buying out the wife's minority share. And he could not claim an additional share for prospective tax consequences, which the court found he failed to prove were very definite or certain

I think Southwest is a phenomenal school with amazing faculty and amazing administration, fantastic facilities. I get to play in a $9 million theater every day after school.I needed to get off the legal trail a little bit to tip my hat to this lovely young woman who loves her studies at new Lincoln Southwest High School. Journal Star. com. As Lincoln nears a vote for a huge new $250million bond issue I think voters should consider that the $9million was money well spent so this talented young lady can leave Nebraska for an exciting career in New York City.

Is this racial profiling? Second Circuit Court of Appeals rules Hartford Connecticut police officers do not have first amendment right to wear exposed spider web tattoos while on dutyFirst Amendment Center.Org. While on duty Hartford police officers may not have exposed tattoos the department deemed “offensive and/or presenting an unprofessional appearance.” In particular the officers objected to having to cover spider web tattoos on their elbows. Apparently a disgruntled officer complained that wearers of the elbow spider web tattoo represent white power or neo-nazi sympathies. Inturri, et al v. City of Hartford (2nd Circuit unpublished opinion). The plaintiffs contended that the symbol represented military service, especially from the Vietnam War, although white supremacist groups have adopted the symbol, especially those who had served time in prison. Funny, a tattoo that might represent rascist opinions may be banned but beards may not if they represent a third world fundamentalist religion, such as Islam or Sikh. More likely suspects complained about the officers'tattoos. If the tattoos' significance comes from prison life, minority suspects who had gone to prison likely were the only ones who knew what the tattoos really meant. Thats probably more than Justice Alito knew when he was on the 3rd circuit.

Follow up; "The (divorce) baked meats did coldly furnish forth the re-marriage tables;" apologies Hamlet. Supreme Court's Strunk ruling gets the attention of family law scholars from its approving an apparently "conditional" judgment in a divorce decreeFamily Law Prof Blog. Ex wifes transferring real estate she gained from divorce settlement incorporated into a decree to joint tenancy with new husband triggered her owing the exhusband $75K.

The Nebraska Supreme Court affirmed. Strunk v. Chromy-Strunk, 270 Neb. 917, January 20, 2006. While noting that ordinarily conditional judgments are void, the court stated that this rule does not extend to equity or to equitable relief. "Rather, where it is necessary and equitable to do so, a court of equitable jurisdiction may enter a conditional judgment and such judgment will not be deemed void simply by virtue of its conditional nature."

Follow up: Douglas County District Court reduces attorney David Domina's legal malpractice verdict against La Vista Keno parlor from $1,600,000 to $229KJournal Star.com. District Judge Patricia Lamberty ruled that McGrath North Mullin & Kratz should pay $229,000 to Richard T. Bellino, a La Vista keno operator. Lamberty said the evidence at trial did not support the amount a jury awarded. Plaintiff's attorney, David Domina of Omaha, promised to immediately appeal the judge's decision to reduce the award.

Latest from Dauber's Department: Nebraska Supreme Court (J. Miller-Lerman) holds that discarded Frye "general acceptance" test is good enough for evidence it is accustomed to receiving, in this case firearms evidence State v. Mason, 271 Neb. 16 February 3, 2006. No. S-04-852. Defendant challenged admission of expert testimony regarding firearms and ballistics evidence under Daubert/Schafersman. the Nebraska Supreme Court (J. Miller-Lerman) holds that firearms/ ballistics evidence to which there has been no recent challenge to its scientific validity meets Daubert standards by its general acceptance. The trial court is the gatekeeper to ensure the evidentiary relevance and reliability of an expert's opinion. This gatekeeping function entails a preliminary assessment whether the reasoning or methodology underlying the testimony is valid and whether that reasoning or methodology properly can be applied to the facts in issue. The party objecting to expert evidence must show that its basis is questionable, then "[o]nce a party opposing an expert's testimony has sufficiently called into question 'the testimony's factual basis, data, principles, [or] methods, or their application . . . the trial judge must determine whether the testimony has a reliable basis in the knowledge and experience of the relevant discipline.'" Zimmerman v. Powell, 268 Neb. 422, 429, 684 N.W.2d 1, 8 (2004) (quoting Schafersman v. Agland Coop, 262 Neb. 215, 631 N.W.2d 862 (2001)).

The type of ballistics and firearms testimony that Bohaty presented in this case was not novel and is fairly routine in cases involving the use of firearms. Therefore, the Daubert analysis did not need to be as extensive as it might have been if the testimony involved more complicated, less routine methods of testing...In a case involving a more novel methodology or a methodology which had been more significantly called into question, a more extensive inquiry and more extensive analysis and reasoning would have been indicated. Considering the nature of the expert testimony involved in this case, we conclude that the court's inquiry, analysis, and ruling with respect to Mason's challenge were adequate and that the court did not abuse its discretion in admitting Bohaty's expert testimony

Lets pass the hat around so that Mr. McCray can rent a nice place next to the Stephans'. Follow up: Nebraska Supreme Court (J. Stephan) withdraws July 2005 opinion on sex offender classification appeal and now rules that State Patrol must drop sex offender's risk score level from III to II despite Unicameral command to give no benefit to offenders for expungements . State (Nebraska State Patrol) v. McCray, 271 Neb. 1 Filed February 3, 2006. No. S-04-395 superseding opinion State v McCray (McCray I) Supreme Court agrees to rehearing from its July 2005 ruling that the offenders expunged misdemeanor convictions would still count in determining his risk profile under the Nebraska Sex Offender Registration Act (SORA), Neb. Rev. Stat. §§ 29-4001 to 29-4013 (Cum. Supp. 2004), and now holds that notwithstanding the Legislature's intervening amendments specifically applying expunged convictions to offender risk scores, the Court will not allow the Patrol to count convictions expunged under § 29-2264 RRS Neb., thereby dropping the offender's risk level from Level III ( § 29-4013(2)(c)(iii); 272 Neb. Admin. Code, ch. 19, § 13.04 ) to Level II (§ 29-4013(2)(c)(ii); 272 Neb. Admin. Code, ch. 19, § 13.03) During the pendency of McCray's appeal, the Legislature addressed this issue. In 2005, § 29-2264(5) was amended to provide that the setting aside of a conviction pursuant to § 29-2264(2) shall not: (h) Preclude proof of the conviction as evidence whenever the fact of the conviction is relevant to a determination of risk of recidivism under section 29-4013; or (i) Relieve a person who is convicted of an offense for which registration is required under the Sex Offender Registration Act of the duty to register and to comply with the terms of the act. Further, this amendment was retroactive, Laws 2005, LB 713, {amendment shall be retroactive in application and shall apply to all persons, otherwise eligible in accordance with the provisions of this section, whether convicted prior to, on, or subsequent to September 4, 2005." }See § 29-2264(6) (Supp. 2005).

We conclude that the 2005 amendments to § 29-2264(5) are not applicable to this case. The orders setting aside McCray's convictions are final judgments which nullified the convictions and removed all civil disabilities which were not exempted from restoration by § 29-2264(5)(a) through (g) as it existed on the date of the orders. See State v. Spady, 264 Neb. 99, 645 N.W.2d 539 (2002). A legislative act will not be permitted, even if an intent to do so is clear, to operate retrospectively where it will have the effect of invalidating or impairing rights which have vested by virtue of the judgment of a court. Karrer v. Karrer, 190 Neb. 610, 211 N.W.2d 116 (1973). The 2003 orders vested McCray with a right to have the three set-aside convictions used only for those purposes enumerated in the statute at the time the orders were entered. Applying the amended version of § 29-2264(5) to this case would have the effect of modifying the judgments to add a new purpose for which the set-aside convictions could be used, thereby impairing McCray's rights.

Does this get you CLE credit? Expert on lawyer jokes to speak at Vanderbilt University Nashville Business Journal. How many lawyers does it take to change a light bulb? How many can you afford? Jokes at the expense of attorneys says much about society perceptions of the perception and lawyer joke expert Marc Galanter take up the subject during a speaking engagement at Vanderbilt University on Feb.. 21.

"Lowering the Bar: Lawyer Jokes and Legal Culture," includes hundreds of lawyer jokes and traces their evolution as an avenue for changing the public's attitudes about lawyers and the law. Galanter thinks the increasing popularity of lawyer jokes, which began in the 1980s, reflects anxiety about a highly legalized society in which the law has come to dominate our lives.

Order of the Knee-pads update: Police arrest Omaha area attorney for stealing clients' accident settlement funds; Nebraska Supreme Court had suspended the attorney in 1995 for identical conductOmaha Law Blog. Attorney Tom Gleason may have stolen as much as $60000 from clients. For doing the same thing the Nebraska Supreme Court suspended him in 1995. The linked blog is dismayed that the Supremes' leniency will come back to haunt it and will make the Court less willing to consider leniency in the future. On the contrary, the results of this case shows the Supreme Court is not capable of policing the ranks of lawyers. The Supremes discipline lawyers in part to protect the "image of the profession." But covering up problems protects it also, as long as no one pays attention. Its time an outside state agency start disciplining attorneys, one subjec to the greater priority the Courts should have of protecting the public.