Governor who blocked public-defender budget increases is ordered to represent indigent defendant

"Taking aim at the government official who has blocked budget increases for indigent defense, the top public defender in Missouri has appointed Gov. Jay Nixon to represent a poor defendant in an assault case.
Michael Barrett, director of the Missouri State Public Defender, posted to his office’s website his Aug. 2 letter (PDF) informing Nixon of the appointment, report the Washington Post, the Kansas City Star and the St. Louis Post-Dispatch."  More.
Original Posted ABA Journal News, Aug. 4, 2016 by Debra Cassens Weiss

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Evidence, automobile accidents, depositions, and salmon carpaccio with capers and organic lemons

Civil rights -- Prisoners -- Due process -- Appeal from dismissal of prisoner's Section 1983 civil rights action alleging state prevented him from gaining access to physical evidence for purposes of DNA testing, in violation of his procedural due process rights, prohibition against cruel and unusual punishment, his right to confrontation, and his right to access to the courts compulsory process -- District court correctly determined that it lacks jurisdiction under Rooker-Feldman doctrine over claim that Florida's DNA access procedures as applied to facts of case fail to meet requirements of procedural due process -- To extent plaintiff raised substantive due process right to obtain biological evidence for DNA testing, in order to make a conclusive showing that he is innocent, claim is without merit, because Supreme Court's decisions in District Attorney's Office for the Third Judicial District v. Osborne unambiguously concluded that there is no substantive due process postconviction right to obtain evidence for DNA testing purposes -- Additionally, actual innocence claim of kind made in this case would be brought in habeas petition and plaintiff has neither sought habeas relief based on free standing actual innocence claim, nor has he shown that available discovery in a habeas proceeding is facially inadequate or that it somehow would be arbitrarily denied to him -- Claims that it is cruel and unusual punishment to subject plaintiff to sentence of life imprisonment if there is evidence that might exonerate him and that plaintiff is entitled to access evidence for DNA testing under Sixth Amendment because he has a right to government's assistance in securing favorable witnesses at trial and to put forward evidence that might influence the determination of guilt or innocence lack merit under Osborne -- Claim that state, by denying plaintiff access to physical evidence, has effectively deprived him of opportunity to litigate his claim, in violation of Due Process and Equal Protection Clauses, is foreclosed by Supreme Court and Eleventh Circuit precedent, which require a litigant asserting an access claim to show actual injury by proving he has colorable underlying claim for which he seeks relief, because plaintiff failed to establish in support of his access to courts claim necessary prerequisite of an actual injury
CARL ROBERT ALVAREZ, Plaintiff-Appellant, v. ATTORNEY GENERAL FOR THE STATE OF FLORIDA, STATE ATTORNEY FOR THE EIGHTEENTH JUDICIAL CIRCUIT OF FLORIDA, Defendants-Appellees. 11th Circuit.

Criminal law -- Concealing location of minor in violation of court order -- Error to deny motion for judgment of acquittal where state did not prove that defendant concealed location of child in violation of court order, as there was no court order expressly telling defendant that she was required to disclose location of child to court -- Statute is not ambiguous
ANALYN MERKLE n/k/a ANALYN G. MEGISON, Appellant, v. STATE OF FLORIDA, Appellee. 2nd District.

Criminal law -- Fines and surcharges -- Error to impose discretionary fines in written judgment where those fines were not orally pronounced -- Surcharges associated with those fines were likewise improperly imposed
MARSHALL S. LAMOREAUX, Appellant, v. STATE OF FLORIDA, Appellee. 1st District.

Employer-employee relations -- Employee benefit plans -- Retirement benefits -- Employee Retirement Income Security Act -- Allegations that fiduciaries of retirement plan, which was structured both as an “eligible individual account plan” and an “employee stock ownership plan,” breached their fiduciary responsibilities under ERISA by continuing to purchase and failing to sell employer's stock even though they knew based on nonpublic information that stock price probably was inflated; provided inaccurate information to plan participants in fiduciary communications; and failed to disclose to plan participants certain business practices by employer that had inflated employer's stock price -- Discussion of prudence and diversification in context of EIAP and ESOP and of presumption described in Moench v. Robertson -- District court did not err in dismissing plaintiffs' claims that defendants breached fiduciary duties of prudence and loyalty -- Prudence -- Although district court improperly concluded that plaintiffs' claim that defendants acted imprudently in acquiring and holding employer's stock was actually a claim that defendants should have diversified the plan's investments and erred in concluding, alternatively, that defendants had no discretion not to invest in employer's stock, defendants' motion to dismiss prudence claim was properly granted based on district court's second alternative holding that plaintiffs' allegations were insufficient to rebut presumption of prudence -- Claim was not a diversification claim where plaintiffs alleged that defendants acted imprudently because they knew stock was overpriced, not merely that stock made up too large a percentage of the company stock fund -- Fact that plan required that plan be invested “primarily” in company stock did not require defendants to invest exclusively in the stock and did not eliminate discretion to sell company stock or stop investing in it -- ESOP fiduciary is presumed prudent for investing in, or continuing to hold, employer securities consistently with the terms of the plan, and that presumption can be overcome only by showing an abuse of discretion -- Although fiduciary is generally required to invest according to terms of plan, when circumstances arise such that continuing to do so would defeat or substantially impair purpose of plan, a prudent fiduciary should deviate from those terms to the extent necessary, and it is an abuse of discretion not to do so -- It is not necessary, as district court held, that company be on the “brink of financial collapse” in order to demonstrate abuse of discretion -- Because abuse of discretion standard applies to fiduciary's decision to continue to invest or remain invested in company stock in obedience to plan's directions, abuse of discretion is element of a claim that the fiduciary's decision was imprudent, and district court properly dismissed prudence claim for failure to state cause of action where plaintiffs failed to plead facts sufficient to raise plausible inference that fiduciaries abused their discretion by following plan's directions -- Loyalty -- District court did not err in dismissing claims that defendants violated fiduciary duty of loyalty by making misrepresentations in SEC filings that were sent to, or were accessible to, plan participants or by failing to inform plan participants of employer's business practices and the effect those practices would likely have on stock price when they became public

RAYMOND A. LANFEAR, RANDALL W. CLARK, ANTONIO FIERROS, Plaintiffs-Appellants, TERRY CLARK, et al., Plaintiffs, v. HOME DEPOT, INC., ROBERT L. NARDELLI, JOHN I. CLENDENIN, MILLEDGE A. HART, III, KENNETH G. LANGONE, et al., Defendants-Appellees, LARRY M. MERCER, et al., Defendant. 11th Circuit.

Mortgage foreclosure -- Default -- Vacation -- Service of process -- Defects -- Substitute service on defendant at address in foreign state at which wife was residing was not valid where it was not shown that this address was defendant's “usual place of abode” -- Evidence showing that defendant and his wife had separated two months earlier, that a petition for dissolution of marriage was pending, and that defendant was living in a different city was sufficient to rebut presumed validity of substitute service -- Neither copy of personal financial statement dated four days after process was served, in which defendant listed the wife's address as his address, nor testimony by plaintiff's vice president that defendant told him he and his wife were reconciling was sufficient to establish that wife's address was defendant's usual place of abode at time of service -- Error to deny motion to set aside final judgment of foreclosure and foreclosure sale for invalid service of process
STEPHEN H. HECK, Appellant, v. BANK LIBERTY, SUCCESSOR IN INTEREST TO CHAMPION BANK BY ASSET ACQUISITION FROM THE FDIC, AS RECEIVER FOR CHAMPION BANK, Appellee. 1st District.

 Torts -- Automobile accident -- Evidence -- Deposition of defendant driver -- No abuse of discretion in allowing deposition of defendant to be published to jury and read into record at rescheduled trial after defense counsel filed affidavit detailing his unsuccessful efforts to locate defendant for several weeks prior to trial and asserting that client had taken a temporary job assignment out of state with a federal military agency, defendant had stated to defense counsel that she was uncertain about her ability to contact counsel while on assignment, and counsel had been unable to obtain any information from employer about defendant's whereabouts -- Being called away for compelling reason was sufficient to show deponent's absence was not self-procured
TARA ASHLEY SUZANNE HUTCHINGS, Appellant, v. PATRICIA ANN LILES, Appellee. 1st District.

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Insurance coverage, appellate court sanctions, and poached eggs on wild baby salad greens with garlic balsamic and olive oil vinagrette and homemade croutons and shaved parmesan

Arbitration Agreement: FLORIDA HIGH COURT REJECTS DAMAGES CAPS IN ARBITRATION AGREEMENTS, Gessa v. Manor Care of Fla., 14 No. 11 Westlaw Journal Nursing Home 1, Westlaw Journal Nursing Home December 2, 2011

Provisions in a nursing home's arbitration agreement that limit a resident's potential noneconomic damages to $250,000 and bar the recovery of punitive damages violate public policy and are unenforceable, the Florida Supreme Court has ruled. The court's 4-2 majority said the limitation-of-liability provisions in the contract "directly frustrate" the remedies created by Florida's Nursing Home Resident's Rights Act.

Insurance -- Commercial liability -- Coverage -- Reformation -- Mutual mistake -- Appeal of declaratory judgment determining that coverage existed for a claim filed against insured arising from injuries sustained while consumer was using exercise ball sold by insured -- Declaratory judgment is reversed because trial court's findings of undisputed fact support reformation of parties' insurance policy based on mutual mistake where, although original policy included an exclusion schedule that was inadvertently left blank and insured was unaware that new copies of policy mailed to insured's agent contained corrected exclusion endorsement, insurer and insured agreed that the exercise balls would be excluded from coverage prior to the policy being issued -- Trial court's focus on how insurer failed to notify insured and insured's agent of the clerical error was misplaced because the manner of notification did not change undisputed fact that the corrected exclusion endorsement did not alter the parties' agreement to exclude the exercise balls

FEDERAL INSURANCE COMPANY, Indiana corporation, Appellant, v. DONOVAN INDUSTRIES, INC., a Florida corporation, Appellee. 2nd District.

Insurance Fraud (Durable Medical Equipment): GEICO ALLEGES $477K FRAUD BY MEDICAL EQUIPMENT SUPPLIERS, HEALTH CARE PROVIDERS, Geico v. Grand Med. Supply, 18 No. 21 Westlaw Journal Medical Devices 4, Westlaw Journal Medical Devices December 5, 2011 Several durable medical equipment suppliers and doctors participated in a scheme to defraud insurers by submitting fraudulent claims for the devices, a federal complaint by insurance giant Geico has alleged in a New York federal court lawsuit. The fraud cost Geico more than $477,000, according to the 12-count complaint filed in the U.S. District Court for the Eastern District of New York.

Insurance -- Homeowners -- Appraisal -- There is no rule or statute allowing for the filing of a petition to confirm an appraisal award -- Trial court erred in granting petition to confirm and entering final judgment pursuant to appraisal award -- Remand with instructions to allow insureds to file complaint alleging viable cause of action for insurer's failure to pay loss for ordinance and law coverage

STATE FARM FLORIDA INSURANCE COMPANY, Appellant, vs. CARLOS TOMAS GONZALEZ AND MARGARITA GONZALEZ, Appellees. 3rd District.

Dissolution of marriage -- Mediation agreement -- Where initial mediation agreement, which was incorporated into final judgment, stated that parties were to share equally in a note receivable if any money was paid pursuant to the note, the only issue pending when parties entered into second mediation agreement was former husband's petition for modification of custody, and the second mediation agreement provided that, in all other respects the previous final judgment shall remain unmodified and in full force and effect, it was error for court to find that under the second agreement former wife was not entitled to a portion of the funds received pursuant to the note -- By changing the disposition of the funds received pursuant to the note, court modified the final judgment contrary to the plain language of the second agreement -- It was also error for court to deny former wife's motion to hold former husband in contempt for failure to pay child support without establishing amount of arrearage

KERRY HARVELL IRVIN, Appellant, v. MARCUS LANE IRVIN, Appellee. 2nd District.

SANCTIONS Kim v. Westmoore Partners, Inc.,(Cal.App. 4 Dist.) Sanctions - Counsel's violations of rules of court in connection with respondent's brief warranted $10,000 sanction The violations of the Rules of Court by counsel for the respondent warranted $10,000 in sanction. Counsel had requested an extension of time to file the brief, but subsequently filed a brief which was nearly identical to a brief which counsel earlier had filed in another action. The Court of Appeal found that the request for the extension of time was thus unreasonable, as the preparation of the brief, which did not address any of the allegedly "complex" issues actually raised on appeal, could not have claimed any significant amount of time. Furthermore, the brief violated the rule of court specifying the required contents of such briefs, as the brief did not contain any thoughtful analysis or relation to the facts of the current case. Rather, a comparison of the two briefs indicated that counsel, when asserting that the appellants had "falsely argued the case," had constructed his argument simply by redacting the facts recited in the earlier brief and reproducing the resulting rhetoric without reference to the current case. The Court found that counsel's conduct warranted $10,000 in sanctions

Trusts -- Accounting -- Error to enter final summary judgment ordering trustee to file accountings for various trusts where there were disputed issues of material fact and where affirmative defenses, including estoppel and waiver and statute of limitations defenses, were not negated -- Trustee waived reliance on New York law with respect to two trusts where trustee did not raise this issue in trial court -- Fact that one of those two trusts was not in record would not prevent summary judgment for an accounting where trustee did not dispute the fact that the trust was in existence and that moving party was a beneficiary -- With respect to two other trusts, each of which had a provision which left to the discretion of the trustee the distribution of an accounting to “beneficiaries eligible within the period covered thereby to receive benefits from the trust which is the subject of said account,” moving party did not conclusively show that he was a beneficiary eligible to receive distributions from these trusts -- Although Florida statute requiring an annual accounting now overrides trust provision to the contrary, movant would still be required to show his eligibility as a beneficiary for those periods prior to enactment of statute

DORIS RICH CORYA, and as Trustee of the Trust Under Will of Paul Rich, dated December 15, 1944, and DORIS RICH CORYA and PAUL J. RICH SANDERS as Trustees of the Trust Under Will of Eleanor M. Rich, dated June 10, 1964, and DORIS RICH CORYA, as Trustee of other trusts presently unknown, Appellants, v. ROY SANDERS and PAUL J. RICH, JR., Appellees. 4th District.

UNTIMELY APPEALS: Nationwide Ins. Co. v. Parmer,(Ind.App.) Appeals - Motion to reconsider does not toll time limit to certify an order for interlocutory appeal. As a motion to reconsider does not toll the time limit to file a notice of appeal, it necessarily follows that a motion to reconsider does not toll the time limit to certify an order for interlocutory appeal. This was decided as a matter of first impression by the Indiana Court of Appeals.

Walton v. State ,(Fla.) Criminal Justice - Porter decision could not form basis for untimely successive motion for collateral relief from death sentence. The Florida Supreme Court has held that the decision of the United States Supreme Court in Porter v. McCollum, holding that it was objectively unreasonable for a murder defendant's trial counsel to have concluded that there was no reasonable probability that the defendant's sentence would have been different had the sentencing judge and jury heard the significant mitigation evidence that trial counsel had neither uncovered nor presented, did not constitute a fundamental change in constitutional law mandating retroactive application in post-conviction proceedings. Rather, Porter addressed a misapplication of Strickland, and involved a mere application and evolutionary refinement and development of the Strickland analysis. Thus, the instant movant was not entitled to a hearing on his second successive, and untimely, motion for collateral relief from his sentence of death. This decision may not yet be released for publication.

U.S. v. All Funds in the Account of Property Futures, Inc. ,(S.D.Fla.) Criminal Justice - Claimants lacked Article III standing to assert claims in civil forfeiture action. The minority-interest members of limited liability companies (LLCs) lacked Article III standing to assert claims in a civil forfeiture action, on the members' own behalf, to the defendant real properties owned by the LLCs, which were allegedly acquired as the result of fraud. The minority-interest members had no ownership interest in the specific real properties that were subject to forfeiture. Rather, they had merely a proportionate equitable interest in the LLCs' general holdings.

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Supreme Court Justices Debate DNA and Confrontation Clause with Little Need for Lawyers

Supreme Court Justices considering the need for a lab analyst to testify at the trial of an accused rapist knew the issues so well and became so lively during the debate that the lawyers became secondary, according to several press reports of oral arguments on Tuesday.  More.
Posted originally by Debra Cassens Weiss, Dec 7, 2011, ABA Journal

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Supreme Court issues decision on Eighth Amendment Cruel and Unusual Punishment

In Brown v. Plata, on May 23, 2011, the U.S. Supreme Court issued a strong opinion about prison overcrowding and inadequate medical care and the Eighth Amendment cruel and unusual punishment clause, which will impact both prisons and future civil rights cases based on these provisions. The opinion can be found here.


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Defense Lawyer Subpoenas Docs Detailing Prosecutor’s Cash Bonuses for Convictions

A Colorado defense lawyer has filed a motion claiming a prosecutor’s policy of paying bonuses for convictions should result in her office’s ouster in his client’s case.
Public defender Stephen McCrohan won more time to subpoena documents about the bonuses in a hearing on Monday, the Denver Post reports. The motion is the first of many expected to challenge the bonus program created last year by District Attorney Carol Chambers of Arapahoe County.
Posted in ABA Journal Law News by Debra Cassens Weiss    More.

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Cleveland Sole Practitioner Wins Supreme Court Decision on Ex-Prisoner's $625K Award Reinstatement

ABA Journal Law News Now posted by Debra Cassens Weiss, Jan 24, 2011

"A Cleveland solo who works out of a spare bedroom in his apartment has won a U.S. Supreme Court victory for his client, a former Ohio inmate who sued prison officials for doing nothing to prevent her sexual assault.

David Eduard Mills had never argued a case before the U.S. Supreme Court before his Nov. 1 appearance, the ABA Journal reported last fall. . . . .Mills’ client, Michelle Ortiz, had won a $625,000 judgment against Ohio prison officials, but it was overturned by the Cincinnati-based 6th U.S. Circuit Court of Appeals. Ortiz had claimed a prison official did nothing after she complained of threats by a male guard who later sexually assaulted her. Then when she complained again, she was placed in solitary confinement."

More.
The Supreme Court decision.

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