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Click. Right-wing judges rule a sleeping attorney is a fine advocate in a murder case.

Click. JUDGE ISSUES SWEEPING GAG (i.e. cover-up) ORDER IN XIANA FAIRCHILD AND DEAN ANDERSON CASES. There's hardly anyone who can talk about anything on pain of contempt.

PHILADELPHIA (Reuters Health) Oct 25 - A new nonlethal police weapon is much more dangerous than either the manufacturers or law enforcement officials claim, often causing debilitating and life-threatening injuries instead of just bruises, according to a report from an emergency department in Los Angeles.

"It's better than shooting them with a 9-mm weapon. The injury patterns are certainly less, but it's by no means benign," said Dr. William K. Mallon of the Keck School of Medicine, of the University of Southern California.

The weapon, which goes by the brand name Flexible Baton (as well as others), propels lead shot encased in cloth bags ("bean bags") at high velocity toward the target. Based on a telephone survey and discussion with manufacturers, the Flexible Baton has been acquired by police departments in every state, Dr. Mallon said.

Although intended only to bruise, in a blow often compared with being hit by a football or baseball, or being punched with a fist, Dr. Mallon told Reuters Health that the Flexible Baton has caused serious injury to about 50 people brought to his emergency department so far.

The injuries included rupture of an old appendectomy scar, contusions, hematomas, fractures, ruptured spleen, loss of an eye, partial thumb amputation, and pneumonthorax with pulmonary contusion. Patients were struck with an average of 2.3 bags.

Furthermore, because the weapon is touted as being relatively safe, and the wounds may look deceptively superficial, some physicians fail to adequately examine the patient. In particular, they may fail to order CT scans of the abdomen. "People didn't appreciate penetrating trauma," Dr. Mallon said.

Law enforcement officers typically resort to the Flexible Baton when they are being charged or threatened with a machete, often by a patient who is mentally ill or who screens positive for mind-altering substances, Dr. Mallon said. They then bring the wounded suspect into the emergency department so that they can be "cleared for booking," that is, have the charges against them recorded on the police blotter.

"This pressure may be part of the reason for the [inadequate] clinical estimation by the physician," Dr. Mallon noted. "The cops need to be told to sit tight while we CT this."

Dr. Mallon presented his report this week at the Research Forum of the Scientific Assembly of the American College of Emergency Physicians in Philadelphia.

By HENRY WEINSTEIN, Times Legal Affairs Writer 7/28/00

A defendant in a capital murder trial does not have an absolute constitutional right to have an attorney who stays awake for the entire trial, a sharply divided federal appeals panel in New Orleans ruled Friday.

     The ruling came in the case of Calvin J. Burdine, whose death sentence for a 1983 murder in Texas drew considerable--and unfavorable--attention to that state's death penalty system.

     During Burdine's trial, his court-appointed lawyer, Joe Frank Cannon, frequently fell asleep, according to jurors and the court clerk. Last year, a federal district judge in Houston ordered a new trial for Burdine, saying that "a sleeping counsel is equivalent to no counsel at all."

     But by a 2-1 majority, a panel of the U.S. 5th Circuit Court of Appeals disagreed. The judges were not "condoning sleeping by defense counsel during a capital murder trial," Judges Rhesa H. Barksdale and Edith H. Jones wrote in their ruling. But from the trial record, "it is impossible to determine--instead, only to speculate--that counsel's sleeping" actually hurt Burdine's case, the majority said.

     Jones, who was appointed to the appeals court by President Ronald Reagan, has been widely touted as a possible Supreme Court nominee if Texas Gov. George W. Bush wins the presidential election. Barksdale was appointed by Bush's father when he was president.

     The Texas attorney general's office, which had brought the case to the appeals court, applauded the ruling. "Today's decision confirms that a jury's verdict will not be overturned unless and until the defendant proves that actual harm occurred as a result of his attorney's conduct at trial," said spokeswoman Heather Browne.

     But in a stinging dissent, appellate Judge Fortunato P. Benavides, an appointee of President Clinton, said, "It shocks the conscience that a defendant could be sentenced to death under the circumstances surrounding counsel's representation of Burdine."

     Burdine's appellate attorney Robert L. McGlasson said that he was deeply disturbed by the decision and that he would ask for a rehearing by a larger panel of 5th Circuit judges or, failing that, seek review by the U.S. Supreme Court.

     "I am confident that, on fuller review, a higher court will agree with me that justice asleep is justice denied," McGlasson said.

     Even if Friday's ruling stands, Burdine, who already has had four stays of execution, will not immediately face execution. His lawyers have raised several other issues that have not yet been ruled on.

     The Burdine case came to national attention during the presidential primaries last spring when Bush was asked about "sleeping lawyers" in Texas death penalty cases. Bush said the fact that Burdine's guilty verdict and death sentence had been blocked showed that "the system worked." He did not mention that the state had already appealed that reversal.

     Mike Jones, a Bush spokesman in Austin, said the governor's office had not seen the decision and would have no immediate comment.

     Friday's decision arose from a trial in which Burdine was convicted of murdering his former roommate, W.T. Wise. The body, found in the bedroom of a trailer, had two stab wounds in the back and the hands were tied with a cord. Burdine conceded long ago that he and a friend went to rob Wise, with whom Burdine had had a sexual relationship. But Burdine denies participating in the killing. His co-defendant, Dennis McCreight, pleaded guilty to a lesser charge and was paroled after eight years, even though evidence introduced at Burdine's trial pointed to McCreight as the principal perpetrator.

     The Texas attorney general's office has conceded that Cannon repeatedly slept through parts of Burdine's trial. But the prosecutors argued that his performance, while shoddy, passed constitutional muster.

     Under Supreme Court rulings, it is very difficult to get a verdict reversed because of "ineffective assistance of counsel." As long ago as 1932 the high court ruled that a defendant needs "the guiding hand of counsel at every step in the proceedings against him." To prove that a lawyer's work was inadequate, however, the justices ruled in 1984 that a defendant has to show, not only that his attorney's performance was well below norms, but also that the lawyer's work prejudiced the defendant's case. On the other hand, the high court has also said that there are some circumstances in which a lawyer's performance is so bad that prejudice can be presumed.

     The federal district judge who originally overturned Burdine's sentence, Judge David Hittner, ruled that a lawyer falling asleep during substantial portions of a trial was one of those cases in which reversal should be automatic.

     The appeals court majority disagreed. "Prejudice cannot be presumed," the two judges wrote, noting that in past cases verdicts had been upheld even though the lawyers had been drunk or impaired in some other way.

     The judges acknowledged that the trial transcript shows Cannon said nothing as the prosecutors cross-examined his client--a tough grilling that ran to 72 pages of transcript. The cross-examination included a question about whether Burdine preferred to be the "man or the woman" during a homosexual act, a question that Burdine's new lawyer said during the appeals court's hearing "was irrelevant, clearly prejudicial and clearly the [potential] subject of an objection."

     But Barksdale and Jones said it was possible that Cannon had decided not to raise any objections as part of a defense strategy.

     Benavides sharply disagreed. Cannon's limited participation in the trial "demonstrate a denial [of counsel] of such significance that the adversary process was rendered unreliable."

     At a hearing in 1995, Cannon denied that he had been sleeping at all. Rather, Cannon said, he was concentrating, with his eyes closed.

     In earlier testimony, however, the clerk of the court that handled Burdine's trial, Rose Marie Berry, said that in one instance Cannon's head was tilted downward and he was asleep "for about 10 minutes . . . at least 10 minutes." There were "lots of incidents" when Cannon dozed off for shorter periods, she said. Three jurors in Burdine's case also testified that they had seen Cannon sleeping during the trial.

     Cannon, who is now dead, slept during the trial of another defendant, who has already been executed, according to appellate court records. In total, Cannon had 10 clients wind up on death row in Texas--the second highest number of any defense lawyer in the state.

     Another inmate currently on death row in Texas, George McFarland, has an appeal pending in Texas state courts, contending that he was denied due process of law because his lead lawyer slept through significant portions of his case.

     Since the Supreme Court permitted states to reinstate capital punishment in 1976, Texas has executed 232 people, including 145 while Bush has been governor, far and away the most of any state in the nation.

CHARLESTON, S.C. (October 27, 2000 12:31 p.m. EDT http://www.nandotimes.com) - Two former school administrators bear responsibility for a teacher's sexual abuse of boys, a jury said, ordering $90 million in damages drawn from the administrators' estates.

Jurors on Thursday held former principals James Bishop Alexander and Berkeley Grimball liable for not stopping teacher Eddie Fischer's molestation of students at Porter-Gaud School.

On Wednesday, the jury had ordered the late principals' estates pay Harold Glover, a victim's father, a separate $15 million in actual damages.

"Kids need to be protected, and things like this shouldn't be swept under the carpet," juror Mary Cobb said after the verdict.

Fischer, 72, is serving 20 years in prison after admitting he molested more than 40 boys during his 40-year teaching career. Several of the boys attended Porter-Gaud.

Alexander had helped Fischer get another school job in 1982 after a sex complaint got Fischer fired from Porter-Gaud, witnesses testified. Witnesses also said Grimball had written Fischer a letter in appreciation of his work at Porter-Gaud and offered to help him in the future.

Grimball was not impelled to call police about the abuse complaint, he said in a sworn statement last year prior to his death. Alexander killed himself in 1998, days before he was to submit a sworn statement.

Porter-Gaud's liability is limited to $250,000 of the $105 million verdict because of a state exemption law. School insurance on the estates of Grimball and Alexander have a reported cap of $2 million.

The school issued a statement Wednesday saying "everyone is a victim here" and that the school had taken steps to prevent future abuse.

The rule, an outgrowth of a California Supreme Court decision last year, requires judges to state on the record why they are sealing a record. The reasons must be in accordance with guidelines spelled out by the high court.

Open-records advocates hailed the rule, approved 18-1 by the Judicial Council -- the administrative arm of California's court system.

The only negative vote came from John Collins, a Pasadena lawyer appointed by the State Bar to sit on the council. He said the Judicial Council has no place to adopt such a controversial rule, adding that is the state legislature's job.

"There is an awful lot of stuff that may get daylight that shouldn't," said Collins, whose vote does not reflect the position of the State Bar that represents all of California's lawyers.

Advocates said the rule would stop judges from the common practice of "casually" sealing records at the request of attorneys.

"It's not going to stop all sealings. But I think it will cut down on the number of casual sealings that occur without any good reason except that the parties in the case think it is OK," said Terry Francke, counsel of the California First Amendment Coalition.

Sacramento Superior Court Judge Ronald Robie agreed with Francke. Robie, a Judicial Council member, said judges immediately seal records at the request or by so-called "stipulations" of lawyers, regardless of whether the documents should remain open.

Now a judge must conduct a hearing and state the reasons for sealing, which might make judges leery of sealing a record, Robie said.

When a judge seals a record, the judge must find an "overriding" interest. That is the standard the California Supreme Court spelled out last year when the high court ruled that a lower court erred when it excluded the public and media from portions of a civil trial in which the jury was not present.

The high court said there was a First Amendment right to access courts and the justices requested the Judicial Council propose how and when court records could be sealed.

Even so, the definition of an overriding interest is at the judge's discretion. Such interests include sealing trade secret information in a lawsuit, the addresses and phone numbers of witnesses and, in some cases, psychiatric and medical reports.

However, even under the new rules, settlement agreements of lawsuits remain confidential as well as a host of juvenile court records and documents of family mediation disputes.

Some lawmakers have said they may introduce legislation next year requiring that lawsuits settled out of court become public records.

Applied Digital Solutions, the US outfit behind a chip that can be stuck inside a human body, will unveil its device in the Big Apple next week.

The Digital Angel demonstration will show "the first-ever working prototype that combines bio-sensors and Web-enabled wireless telecommunications linked to Global Positioning System (GPS) satellite technology", according to the company blurb on the invite.

The chip itself is due to be released in approximately eight months, and will be a wafer-thin matchbox size device. It will cost between $100 and $300, and be powered from heat generation. Speaking at Internet World today, Keith Bolton, CTO at the Florida-based company, moved to allay fears that the technology would encourage a Big Brother environment.

Bolton said the chip would not, after all, be placed under the skin. Although this was part of the original patent, ADS abandoned the idea after it found it would probably take years to get approval for the idea from the Federal Drug Administration (FDA).

Instead it will be worn next to the skin, via a patch or underneath a watch, for which the company claims there are a plethora of applications. Lost pets could be found, human bodily functions such as blood sugar or heartbeat tracked online, or the health of livestock such as cattle monitored. Other such revelations, such as how it could be used to improve physical authenticity and security over the Net, are promised for Monday's event. ®

EMAIL: IN DEFENSE OF THE DELETE KEY.

Posted: 27/10/2000 at 13:31 GMT

James Rosenbaum, a district judge in Minnesota, has sparked a debate about the legal status of email with an essay called In Defence of the Delete Key.

He argues that it is unethical to take words never intended for publication and to use them in evidence against their author - likening this to punishing people for thinking things that they shouldn't.

Rosenbaum proposes that the deletion of email should be regarded as permanent in the eyes of the law. He says his comments are intended to get the debate going, rather than to define what should be done. He recommends a finite lifespan of six months be put on an email - an arbitrary figure to start the discussion.

The problem, he says, is that as the law stands you can libel someone even if you never showed the defamatory comments to another soul. All you have to do is leave it in a place where it can be found, and at the moment that stretches to include a hard drive.

This means that an employee can be sacked for a draft email that was never even completed, let alone sent, before deletion.

However, emails that had been deleted were an essential part of the case against Microsoft in the Anti Trust trial. There are other areas of concern too: New Scientist writer Donald Ramsbottom that it was unclear why should a criminal escape prosecution just because email evidence has "expired"?

Gainfully unemployed
Meanwhile, some rather spurious research results out this week show that employees cost companies up to £2.5 million per year in lost time by spending surfing the net or sending personal emails. The report was presented to the Chartered Institue of Personnell and Development.

Of course, if people were not wasting time online, they would work solidly all day long. No-one would gossip by the kettle, have non-work related conversations at their desks or just sit staring into space, nosiree. So heads down, noses to the grindstone, and stop reading this article. Now.

Papers seek end to gag order

10/26/00

Judge silenced press, cops in Vallejo child kidnapping case

Newspapers including The Examiner want a state appeals court to overturn a Solano County judge's gag order in a high-profile child kidnapping case, saying the order violates free expression and is interfering with legitimate news coverage.

In papers filed Wednesday with the 1st District Court of Appeal, media lawyers said there was no evidence to justify a judge's findings that coverage of Curtis Dean Anderson's case - including disclosures that police had looked into the possibility of his involvement in another child kidnapping - was threatening Anderson's right to a fair trial.

Since the gag order was imposed Aug. 24, law enforcement and court officials have refused to release any new information about Anderson's case or about the disappearance last December of another Vallejo girl, 7-year-old Xiana Fairchild, newspaper lawyers said.

The court must act immediately to protect the "rights of parties, police and witnesses to speak and of the press to gather and report the news," wrote attorney Roger R. Myers on behalf of The Examiner, the San Francisco Chronicle, the Vallejo Times-Herald and the Sacramento Bee.

Anderson is accused of kidnapping an 8-year-old Vallejo girl as she walked home from school Aug. 10, and of sexually molesting her. She freed herself from shackles and escaped from her abductor's car in Santa Clara Aug. 12. Anderson was arrested the same day.

Defense lawyers sought a gag order after police said they were investigating possible connections between Anderson and other kidnappings, including the still-unsolved disappearance of Xiana Fairchild.

Anderson has a long criminal record but has not been charged in any other kidnapping case.

Myers noted that news articles have quoted police as saying they found no evidence of his involvement in Xiana's abduction.

Superior Court Judge Allan Carter issued the order prohibiting out-of-court statements by lawyers, police and other participants in the case, including potential witnesses.

They are barred from discussing the evidence or trial testimony, from identifying future witnesses and from describing expected testimony in Anderson's case or any related case.

The gag order also prohibits the release of documents or items that have not been admitted into evidence.

Violators can be found in contempt of court and fined or jailed.

Carter held a hearing Sept. 7 and reaffirmed his order, saying unrestrained public comments would pose a serious danger to a fair trial.

He also said the gag order appeared to be working because "the press has not covered this case so thoroughly" since it was issued.

Myers told the appeals court that Carter had ignored Supreme Court rulings requiring a showing of a clear and present danger to a fair trial, and the futility of alternative measures, before free expression can be restrained.

Potential jurors, even those who read newspapers, are unlikely to be inflamed by articles saying police looked into Anderson's possible involvement in other kidnappings, or that they found no incriminating evidence, Myers wrote.

He also said Carter refused to consider moving the trial, if questioning of prospective jurors showed they were biased by news coverage.

The gag order's ban on comments about related proceedings is so broad and vague that police have refused to discuss the Xiana Fairchild case, Myers said.

Kahalekulu visits Midsi's alleged abductor in prison

By Richard Freedman, Times-Herald staff writer

Stephanie Kahalekulu left a Solano County jail visit in Fairfield with few answers, but Xiana Fairchild's great aunt was relieved after a surprise 40-minute conversation Friday with Midsi Sanchez's accused kidnapper.

Curtis Dean Anderson, charged with taking the 8-year-old Sanchez from her Vallejo neighborhood Aug. 10, "was calm and straight-forward and I didn't get the impression he was lying," said Kahalekulu, who intentionally restricted her questions to Fairchild, the 8-year-old missing since Dec. 9.

"I felt I needed to ask him myself whether or not he knows where Xiana is," Kahalekulu said. "I wasn't there to point fingers. I don't know whether or not he's involved."

Anderson, arrested after Sanchez made a daring escape Aug. 12, never smiled as he faced Kahalekulu in the interview booth as he answered most of her questions, she said.

"It was a very calm conversation. He wasn't stone-cold," Kahalekulu said. "I really don't know whether or not he's involved (in Xiana's disappearance), but I wanted to ask him if he knew. He said, "I don't know that right now.' I asked him if he knew if she was alive or not. He said he didn't know."

Anderson said he couldn't provide information directing volunteers to search any particular area.

"I tried to ask questions that may lead to Xiana," said Kahalekulu, noting that the last time she visited a prison was to assume guardianship of Fairchild from her mother, Antoinette Robinson, who was incarcerated.

Kahalekulu did not ask Anderson if he was responsible for Xiana's disappearance.

"Basically, I knew he would never say "Yes' or "No,'" said Kahalekulu, believing Anderson's lawyer was unaware of his conversation with her.

"I don't think Anderson said anything that would get him in trouble," she said, adding that Vallejo police were aware she was seeking a meeting with Anderson.

"They said it was OK if it was something I needed to do," she said.

Anderson denied he knew Robinson or her boyfriend, Bobby Turnbough, central figures in the Xiana investigation.

"He said he never met them and doesn't know why Antoinette would say he has," Kahalekulu said.

Kahalekulu considered the conversation "a step" in finding Xiana, adding that she can't be sure one way or another if Anderson was completely truthful.

"In my experience, I've talked to many people who can keep a straight face," she said. "I didn't go in there with any expectations of coming out with the location of Xiana. I didn't expect Anderson to say, "Go pick her up over there.' I wanted to go in and just see what would happen."

Kahalekulu believed Anderson was honest "in the sense of, if he couldn't or didn't want to answer a question, he would say that."

Kahalekulu said Sanchez's name never came up in the 40 minute discussion.

"That wasn't my mission," she said. "The conversation would have probably been cut short if I had started pointing fingers."

Never did Anderson appear uncomfortable with the questioning, said Kahalekulu.

"He may have chosen his words carefully, but he didn't seem uncomfortable," she said.

Kahalekulu said she spent Friday morning watching home videos of Xiana and took sacks of pictures of Fairchild to Fairfield. She wore a Xiana photo button while talking with Anderson.

"I was very focused," she said. "I wanted to know where Xiana is. In a sense, I didn't want to psyche myself out. I didn't walk in trying to understand why anyone could do anything. I didn't want to mess up my mind. I tried not to expect anything."

The demeanor of the six-foot tall Anderson couldn't be described as "pleasant," Kahalekulu said, "but he didn't have the evil, hard-criminal look."

Though there were no major breakthroughs, Kahalekulu said it was worth the effort.

"I don't think it was a waste of time," she said. "He answered the majority of the questions. I didn't get the impression he was lying, not making any judgment. Again, if he didn't want to answer questions, he didn't."

Kahalekulu said she "didn't walk away with an opinion, one way or another" of Anderson.

"I had no gut feeling," she said.

Kahalekulu said the conversation ended when she ran out of questions.

"I asked him if I had anything else to say, could I come back and he said, "Yes,'" said Kahalekulu.

Xiana's great-aunt still has hope the child is alive.

"Definitely," she said. "All these avenues they're looking at and not finding her. Maybe somebody does just have her and is keeping her. You never know. You don't until you know and I'm not going to give up on her."

There are family members in Hawaii that questioned whether Xiana is still alive, said Kahalekulu.

"I tell them, "Do you know that she's not?' And that's it. You don't know one way or another. People tend to think negative. It's easier for them. It's not easier for me."

BERKELEY ATTORNEY BUSTED FOR DRUGS.
Oakland Tribune 10/28/00

BERKELEY -- About 15 pounds of packaged marijuana, 290 marijuana plants, assault rifles and pistols were seized from an attorney's home Friday by Oakland narcotics officers.

The attorney, Michael Moore, 56, who specializes in criminal defense, was stopped and arrested as he was driving away in his Mercedes from his split-level hillside home in the 1100 block of Glen Avenue in Berkeley.

Most of the packaged marijuana was in the garage, police said. The marijuana plants were found in a basement under the kitchen, accessible by what police described as a hidden lift. Police also found cocaine and hashish in the home.

The packaged marijuana is worth at least $130,000 on the street and police believe Moore was selling it, Sgt. Bruce Brock said.

Scales were found in the home and a safe yielded $4,000 in cash, police said.

Police found documents at the house indicating the marijuana was for medicinal purposes. But officers said what was found "far surpassed any legitimate amount" for just medicinal use.

Additionally, police said they found 14 weapons, including assault rifles and assault pistols, a "street sweeper" shotgun able to fire multiple rounds, two silencers for one of the assault pistols, and a bullet-proof vest.

Narcotics Officer Jim Beere said he thinks the guns were mainly for protection "from other dealers, robbers and maybe some of his clients."

Moore was booked at the Oakland City Jail on suspicion of nine felony drug and weapons charges. His bail was set at $290,000.

The 8 a.m. raid ended a two-month Oakland police investigation headed by Beere, who developed information Moore allegedly had illegal weapons and a "marijuana grow" at his home.

Beere said 15 pounds of the marijuana was in half-pound packages.

The plants were in different stages of growth, some as high as 5 feet, and were in a variety of pots. The basement contained track lighting on timers and a special ventilation system, Beere said. The plants were watered by hand with a hose.

Beere said one of the ways Moore allegedly gained access to the basement was by a hidden elevator from the kitchen. He said carpet covered a portion of the linoleum floor, underneath which was an electronically operated elevator that could hold two people.

Beere said the guns were found hidden in closets and file cabinets throughout the house. A half-ounce of powder cocaine and 12 grams of suspected hashish were also found in various parts of the house.

Police said Moore recently moved his practice from an office on Eighth Street, a block away from Oakland police headquarters, to his house.

According to State Bar Association records, he has been a practicing attorney since May 1973 and has no current disciplinary problems. He has represented a wide variety of clients over the years, including the Hell's Angels.

One of his current clients is Paul Sonsken, a man Oakland police described as a "survivalist." Sonsken was arrested Sept. 27 after police found a cache of weapons, ammunition and drugs hidden behind secret panels and floor coverings throughout his home in the 2300 block of San Pablo Avenue.

Moore is expected to be arraigned Tuesday in Alameda County Superior Court.