Wednesday, November 29, 2006

OJ Simpson "dream team" lawyer settles malpractice claim for $ reports that "dream team" lawyer and "Innocence Project" founder Barry Scheck improperly filed a wrongful conviction damages action against the State of New York on behalf of client Lee Long. New York's highest state court, the Court of Appeals ruled in July (Lee Long v State of New York)that although procedurally the former client had a case, he loses because Scheck did not have the client verify his lawsuit. According to a press release, the settlement was to be confidential and no admission of liability.

Friday, November 24, 2006

Shame on Omaha recreational products firm Sportsstuff for not telling boaters that flying on a tethered kite at 30 miles an hour behind a power boat could be hazardous; Omaha personal injury Attorney Ronald Palagi is doing what he can to make boating boring againIn cooperation with the U.S. Consumer Product Safety Commission (CPSC), Sportsstuff, Inc., of Omaha, Nebraska is voluntarily recalling about 19,000 Wego Kite Tubes. According to the CPSC press release Sportsstuff warned boaters, "never Kite higher than you are willing to fall."The tubes were imported and sold through marine distributors, mail order catalogs, and various retailers from approximately October 1, 2005 to July 11, 2006 for about $500 to $600. According to Yahoo news, at least two people have been killed and 39 others injured in accidents linked to an Omaha company's Wego Kite Tubes. That's why four lawsuits have been filed against SportsStuff Inc. and the Wego Kite Tube is no longer available. To get on the slow lawsuit boat to China, go to this site for Kite tube lawsuits.

Wednesday, November 22, 2006

No opinions from the Nebraska Supreme Court, last week or this week
Eighth Circuit Court of Appeals affirms conviction from the District of Nebraska against Defendant for illegally entering the USA after deportation. ICE Department records were not "testimonial" business records, and therefore admissible even under Crawford v Washington; Judge Camp also cured her "prejudicial" comments about coming from Canada. USA v. Urqhart U.S. Court of Appeals Case No. 06-1242 District of Nebraska 061242P.pdf 11/22/06 . State Patrol officers arrested the defendant, a Canadian citizen whom immigration officials had earlier deported on Interstate 80 near Sidney. What do illegal immigrants from Canada like so much about Sidney? Federal prosecutors offered a "Certificate of Nonexistence of a Record" from the defendant's alien-file. Defendant objected that offering this records evidence violated his 6th Amendment rights to confront witnesses, per Crawford v. Washington, 541 U.S. 36 (2004). Eighth Circuit affirms conviction for violating 8 U.S.C. § 1326(a). The "nonexistence certificate" is nontestimonial evidence and its admission in prosecution for illegal reentry after deportation did not violate defendant's confrontation clause rights; further trial judge's statement that defendant was "from Canada" did not require a mistrial in light of the court's curative instruction.

Tuesday, November 21, 2006

Wecome new Nebraska Supreme Court Justice Heavican. Wonder if Hendry retired to avoid the skateboarding protesters who are up in arms about his eliminating political subdivisions from the immunity that the Nebraska Recrational Land Liability Act affords.

Monday, November 20, 2006

Nebraska Court of Appeals agrees with District Court that suicidal motorist's victim in fatal collision had no case against the Lincoln Police Department whose officer had earlier briefly detained the suicidal motoristPoppe v. City of Lincoln, 15 Neb. App. 164 Filed November 14, 2006. No. A-05-289. Suicidal motorist drove the wrong way on interstate 80 colliding with the deceased driver Barbara Poppe, killing Barbara. Earlier a Lincoln Police Department office had stopped Robin Siefker, on warnings that he was suicidal. Police let him go and he proceeded to kill himself by driving the wrong way on the interstate. Barbara's estate sued the City of Lincoln for failing to stop and take Siefker into custody. Nebraska court of appeals upholds District Court's 12b6 dismissal because the complaint did not state a duty the Defendant's officer breached toward the deceased. appellant alleged that the police officer stopped Siefker's vehicle but failed to identify and detain Siefker. The allegations of the complaint imply that the officer was negligent because he failed to "take charge" of Siefker. However, under § 319 (Restatement of Torts) no duty arises from failing to take charge of the third person; rather, the duty to exercise reasonable care to control the third person to prevent harm to another arises only after one has taken charge of the third person. Thus, § 319 requires that we determine whether the traffic stop and brief detention constituted "taking charge" of Siefker.We conclude that the police officer's temporary stop of Siefker did not create a custodial relationship which imposed a duty on the officer to control Siefker's subsequent behavior

Wednesday, November 15, 2006

Plaintiffs attorney in Nebraska wins underinsured motorist case against American Family from 3 vehicle auto accident because he was successful in shaking down 2nd vehicles insurer even though its driver was not at fault Omaha Personal Injury Lawyer Blog. Did you know if you are in a car accident, make sure you sue every driver in sight. In Pogge v American Family Insurance (Nebraska Supreme Court) Plaintiff was injured in a three vehicle accident. The injured plaintiff settled with first vehicle for total amount of liability coverage, plaintiff then settled with second vehicle for less than the liability coverage, with a release stating that the settlement is in compromise of a claim without any admission of liability. Plaintiff sued his own insurer, American Family Insurance, for underinsurance and AmFam denied coverage for failing the exhaust all of the primary coverage. Reversing the Douglas County District Court, the Supreme court rules a settlement is not an admission of liability and to rule as the trial ruled is an error of law. Normally an injured motorist who seeks underinsured motorist coverage must exhaust all available liability policies. Supreme court reverses: Without an admission of liability and without evidence of the second vehicle's driver's negligence, the Supreme Court ruled that the plaintiff's motion for summary judgment should be allowed, that there is no evidence that the liability insurance available to the plaintiff has not been exhausted, and the case is remanded to determine damages.

Friday, November 10, 2006

Nebraska Supreme Court vacates Douglas County divorce case between Canadian spouses, finding the wife who had resided in Nebraska for over three years failed to prove she had the requisite intent to reside permanently in this state. Supreme court however does not foreclose any divorce that a visiting alien might file.Rozsnyai v. Svacek, 272 Neb. 567 Filed November 9, 2006. No. S-05-876. The Douglas county district court granted a marriage dissolution awarded property and attorneys to the wife after overruling the Husband's objections that the court lacked subject matter and personal jurisdiction. the trial court refused to consider the husband's Canadian attorney's affidavit that the parties divorce in British Columbia remained pending. "One who proves that he or she has met the durational residency requirement for jurisdiction in divorce proceedings set out in § 42-349 shall be permitted the inference that such residency was with the intention to make Nebraska a permanent home, absent a showing that the residency was a sham and not bona fide. Rector v. Rector, 224 Neb. 800, 401 N.W.2d 167 (1987). However, when both parties are foreign citizens and the only party to have resided in Nebraska has done so by reason of a visitor's visa, the inference is negated and specific proof of intention is required. The Supreme Court skirts the husband's assertion however that no alien residing in the US on a visitors visa could establish residence here. "A nonimmigrant alien authorized to reside in this country on a visitor's visa does so on a temporary basis and on the condition that he or she is not abandoning his or her foreign residence. 8 U.S.C. § 1101(a)(15)(B); 8 C.F.R. § 214.2(b) (2006). The residency restrictions placed on a nonimmigrant alien residing on a visitor's visa negates the inference that a nonimmigrant alien intends to reside in Nebraska on a permanent basis merely because he or she has resided in this state for more than 1 year. Thus, in the instant case, the inference created by Rozsnyai's testimony that she has lived in Nebraska since 2001 was negated by the fact that she has done so on a visitor's visa. Because an inference did not arise that Rozsnyai has resided in Nebraska with the intention to make it her permanent home, it was necessary for Rozsnyai to put forth evidence establishing that intent. However, the only evidence presented at trial was Rozsnyai's testimony regarding the length of time she had resided in Nebraska at the time of trial. there may be instances where a nonimmigrant alien is able to establish an intention to reside in a state permanently when the alien has offered proof of that intent apart from his or her presence in that state. See, e.g., Alves v. Alves, 262 A.2d 111 (D.C. App. 1970) (holding husband established domicile for purposes of obtaining divorce in that jurisdiction, despite immigration status); Weber v. Weber, 929 So. 2d 1165 (Fla. App. 2006) (holding nonimmigration status does not bar individual's right to establish residency for purposes of obtaining dissolution of marriage in that state and citing Perez v. Perez, 164 So. 2d 561 (Fla. App. 1964), for proposition that alien's nonpermanent immigration status is factor in determining issue of domiciliary intent); Bustamante v. Bustamante, 645 P.2d 40 (Utah 1982) (noting nonimmigrating aliens may form requisite intent to establish permanent residence for purpose of divorce). However, such evidence is not present in this case. "
Follow up: Nebraska Supreme Court agrees with drug dealer that because the Attorney General did not argue to the Court of Appeals that the Leon good faith exception applied, the court of appeals should not have allowed the search to standState v. Tompkins, 272 Neb. 547 Filed November 9, 2006. No. S-05-212 Justice Connolly a one man roving commission against errors only he can find reverses the court of appeals on admittedly flimsy precedent on when the State must raise a Leon issue: "We have found very little case law directly on point regarding how the good faith exception may be raised; however, one case is instructive. In State v. Ortiz, 257 Neb. 784, 600 N.W.2d 805 (1999), after finding no probable cause for the issuance of a warrant, we explicitly stated that we would not address the Leon good faith exception as it was not raised by the State. However, we did not explain the reason for our decision. We now follow our ruling in Ortiz and provide an explanation for why an appellate court on its own motion cannot consider the good faith exception. "

Friday, November 03, 2006

Nebraska Supreme court clarifies when an appellant may seek review of a dissolution action when she accepts some of the judgment; Supreme court overrules earlier cases that limited exceptions to the "acceptance of benefits" rule to child custody and support situationsLiming v. Liming, 272 Neb. 534 November 3, 2006. No. S-06-015. Parties disputed the value of their home and the court also awarded the wife alimony, which the husband paid in a lump sum. While the appeal was pending the wife took the money. The Court of appeals summarily affirmed the trial court based on Shires 240 Neb. 856and Giese 243 Neb. 60, which held that only child support and visitation issues are exceptions to the appellate rule prohibiting appeals of judgments where the appellant accepted the benefit of the ruling. Still the Supreme court affirms the trial court's property division. The husband's lottery winnings were in 1997 and the parties didnt file for divorce until 2004. "To the extent that Shiers v. Shiers, 240 Neb. 856, 485 N.W.2d 574 (1992), and Giese v. Giese, 243 Neb. 60, 497 N.W.2d 369 (1993), limit the exceptions to the acceptance of benefits rule in a dissolution of marriage action to issues affecting the interests and welfare of children, they are disapproved"
Arrested? Dial 1-800-LIAR! Nebraska Supreme court finds plain error when histrionic Prosecutor alleged defense attorneys mislead juries when defending clientsState v. Barfield, 272 Neb. 502 Filed November 3, 2006. No. S-05-973. Revival meeting prosecutor accused drug ring leader of being a "vicious dictator who rules with intimidation and tyranny like a two-headed hydra." The prosecuting attorney went further by complimenting defense counsel's advertising: You know, in 20 years as a prosecutor the hardest thing I think I've had to do is sit there with a straight face when a criminal defense lawyer had to look up the definition of "lie" in a dictionary. Why, I thought that was printed on the back of their business cards. Defense counsel did not object during argument. "Considering the cumulative effect and the egregious nature of the prosecutor's comments presented here, we similarly conclude that to leave such conduct uncorrected would result in damage to the integrity, reputation, and fairness of the judicial process. We again emphasize that the remarks made by the prosecutor, especially the prosecutor's statement to the effect that defense lawyers are liars, are of a very serious nature. In addition, the prosecutor's unacceptable remarks do not reflect a single, isolated instance, but were numerous. Moreover, because the disparaging remark as to defense attorneys was made during rebuttal, defense counsel had no opportunity to respond to and mitigate the last impression left with the jury before deliberations: that defense counsel, like all defense lawyers, was a liar."
Follow up; according to the Omaha World Herald, candidates for Douglas County Attorney are exchanging war stories of who committed bigger snafus. In State v Alba the Supreme Court said the Prosecutor's error led to a child sex predator's plea bargain to Class IV instead of Class II Each candidate had his share of dropped balls, and big city ennui as to street crime. The Alba case stands out because all the sides missed the effective date of the pertinent statutes. The world herald comments: Peter J. Alba case: Mark Rhodes, Dornan's former chief criminal prosecutor, agreed in 2004 to a plea bargain, allowing a convicted sex offender to plead to two counts of sexual assault of a child. Rhodes thought that the counts were punishable by up to 50 years in prison. However, sexual assault on a child carries a maximum term of 20 months to five years in prison. An appeals court overturned Alba's 15- to 25-year sentence. He was sentenced instead to 20 months to five years in prison on each count. (The Supreme court agreed with the Court of appeals that the sentence was excessive but refused to vacate the guilty plea.) Dornan noted that the judge and defense attorney also misunderstood the punishment. He said he will seek to place Alba under parole supervision after Alba's release.

Wednesday, November 01, 2006

Eighth circuit court of appeals reverses death sentence from Dallas county Missouri because the Prosecutor was playing sociologist poorly and the Judge was getting his anthropology wrongHerbert Smulls v. Donald Roper U.S. Court of Appeals Case 052456P.pdf 11/01/2006 U.S. District Court for the Eastern District of Missouri - St. Louis . The eighth circuit issues a rare reversal of a death sentence on Batson grounds. The prosecutor removed the only "dark" person on the jury and his reason was he didnt trust postal workers, even though some of his inlaws were postal workers. The judge during jury selection added to the farce by challenging the defense attorney's assumption that she could pick out black persons from among shades of skin color. Neverthe less the Eighth Circuit reverses and remand for a new Batson hearing at the district court or an outright vacation of the death sentence. The Prosecutor commented on how distrustful postal workers are: "Venire person indicated that she is a mail sorter for Monsanto Company. That she sorts mail for, I believe she said, 5000 people. And her husband works for the post office. And I believe she listed him as a custodian. It's been my experience in the nine years that I've been a prosecutor that I treat people who work as mail sorters and as mailcarriers, letter carriers and people who work for the U.S. Post Office with great suspicion in that they have generally – in my experience in many of the trials that I've had – are very disgruntled, unhappy people with the system and make every effort to strike back. In my experience as a prosecutor, in trying cases where I've had several cases and left mail people on the jury, had them result in a hung jury. The most recent of which was a murder case in this courthouse last September, State versus Dana Ruff (phonetically) where a mail carrier was the holdout for a hung jury in that case. I also have several in-laws who are employees of the postal department and even though they are somewhat relatives, I share the same opinion of them. So I treat them with great suspicion. The trial judge topped this with some brillant anthropology, worth of Gunnar Myrdal: I don't know what it is to be black. I don't know what constitutes black. And I never, in this Court,no matter what any appellate court may say, I never take judicial notice that anybody is black or that only one person or four persons or eightpersons are black. That to me is something that I don't think this Courtis wise enough or any other appellate court is wise enough unless thereis direct evidence as to who is black and who is white and who is orange and who is purple. I do not under any circumstances in this division ever take judicial notice of the number of people who are black. And Ibelieve that's counsel's responsibility to prove who is black and who isn'tor who is a minority and who isn't. There were some dark complexionedpeople on this jury. I don't know if that makes them black or white. As I said, I don't know what constitutes black. Years ago they used to sayone drop of blood constitutes black. I don't know what black means. Cansomebody enlighten me of what black is? I don't know; I think of themas people. I listened to the responses of Ms. Sidney. I watched her attitude very briefly as it may have been, and I'm not going to sit hereand say to you that Ms. Sidney is not black. But I'm not going to makea judgment as to whether anybody else on the panel was, so in any event,I'm merely telling you that for the record. I'd rather not even discuss it onthe record. But, in any event, I'm going to deny your motion for amistrial on the basis stated. Are we ready to proceed