By Joseph Schuman

Clerks dismissed cases while St. Louis judge was away

12/20/11

With clerks like these, who needs judges?

Associate Circuit Judge Barbara T. Peebles was in China for two weeks in October, but that didn't keep her office from handling court business, according to an investigation by the St. Louis Post Dispatch. During the time Peebles was out, her clerks took care of at least 350 cases: they decided on their own to dismiss five lawsuits, issued as many as 18 arrest warrants and told defense attorneys no bail reductions would take place until Peebles' return. At the same time, the clerks rescheduled more than 300 cases to later dates - a move that may have added weeks of jail time for defendants who sought release ahead of their trials. "I think it's as illegal as hell," defense lawyer David Stokely tells the paper.

It turns out Judge Peebles had arranged for colleagues to handle cases that concerned recently-arrested inmates who had to appear before a judge. But the arrangement did not extend to the rest of her caseload. Reached by the Post-Dispatch, Peebles declined to comment, saying some of the cases were still pending.

But Circuit Court Presiding Judge Steven Ohmer described the conduct of the clerks and Peebles as "wrong," and said he had considered the so-called "nuclear option" of removing her from the bench that initially handles criminal cases. In the meantime, he said, the Commission on Retirement, Removal and Discipline was looking into the matter.

Embryo disputes pit right to avoid reproducing against right to make babies

2/20/11

Which constitutional right takes the higher priority: the right to avoid procreation or the right to have your own biological babies?

That question is largely unsettled by our judicial system, but courts may soon have to answer it thanks to disputes over frozen embryos that are working their way through the legal pipeline.

In one case currently on appeal, a married Pennsylvania couple had embryos frozen in 2004 ahead of the woman's chemotherapy treatments, the Wall Street Journal reports. Nearly three years later, they filed for divorce. But the woman, Andrea Reiss, wants to use the embryos to have children while her soon-to-be-ex-husband, Bret Reber, wants the embryos destroyed. The trial court made a surprising ruling on this, but we'll get to that in a moment.

Many fertility centers make couples agree on embryo divorce scenarios ahead of time, but without such an agreement, the courts in most states have been pretty clear. "The rationale is that people have a right to change their minds, and nobody should be forced to become a parent against his or her wishes," say Susan Crockin, an adoption and reproductive-technology lawyer in Massachusetts. No high court in any state has ruled in favor of a woman who wanted to use embryos when the ex-husband opposed it.

But there aren't definitive rulings for when a woman's only chance of bearing a biologically-related child relies on disputed embryos. "The constitutional right to avoid procreation is well defined," Boston family lawyer Maureen McBrien says. "But what's less clear is the constitutional right to reproduce and whether that right extends to a right to bear a biologically-related child."

Now back to the case of Andrea Reiss and Bret Reber. Reber argued the couple never intended to have children and froze the embryos just as a precaution in case he changed his mind. For her part, Reiss said that she wouldn't be able to bear children without the embryos, and that adoption wasn't a "comparable alternative." Judge David Bortner, moved by her arguments, ruled last May that that Reiss could use the embryos despite Reber's objections. This was the first time a court has issued such a decision, and it is now being appealed to the Superior Court of Pennsylvania.

U.S. airlines wait court's ruling over EU emissions rules

12/20/11

A trans-Atlantic legal fight is brewing over European Union plans to charge airlines for their carbon emissions, and the American carriers could get stuck between an insistent Brussels and a resistant Washington, the Financial Times reports.

On January 1, the EU will launch an emissions-trading system designed to reduce greenhouse gases by requiring airlines to pay for the carbon dioxide they emit as a condition for flying into and out of Europe. That prospect doesn't thrill U.S. carriers, which unsuccessfully challenged the requirement at the European Court of Justice.

Now the fight is escalating. In a letter to top EU diplomat Catherine Ashton, Secretary of State Hillary Clinton said China, Japan, Russia and Brazil are ready to join the U.S. effort to challenge the EU's environmental policies.

But the airlines could lose either way when the full European Court of Justice, which rarely breaks from the preliminary decision, issues a final ruling tomorrow. If the ruling stands, the U.S. airlines could face penalties starting next month. And if they pay the penalties, they could be penalized as well, since a bipartisan majority in Congress passed a law making it illegal for the U.S. airlines to comply with the EU plan.

Unveiling some secret recipes of the Supreme Court

12/20/11

Martin Ginsburg was a tax lawyer and law professor. But cookbooks outnumbered the legal tomes in his library, according to his wife, who happens to be Supreme Court Justice Ruth Bader Ginsburg. The professor's rule of thumb was simple: "My wife does not give me any advice about cooking, and I do not give her any advice about the law."

Martin Ginsburg died last year, and now his widow has helped publish a book of his favorite recipes, "Chef Supreme: Martin Ginsburg." "He was quite an artist in the kitchen, and he wanted to communicate to others the pleasure that he derived from making something successfully," the justice tells the Associated Press, adding that if he hadn't become a lawyer, he might have studied to be a chef. The cookbook is a compilation published by the Supreme Court Historical Society with recipes from his wife and grandchildren, as well as other Supreme Court families.

"One of the goals as spouses is to be supportive to each other as well as the court family. Marty led the way with perfect pitch," says Martha-Ann Alito, the wife of Justice Samuel Alito. Ginsburg's "culinary creations awed and delighted" his fellow high court spouses and their families.

Ginsburg tells the news service that since her husband died, she has dealt with his recipes in the book but not in the kitchen, and admits she never understood why he spent so much time on them. "I could spend hours writing an opinion. But when it's done it's there on paper, and I can see it again," she says. "What Marty made was consumed too quickly, but he didn't regard it that way."

Exonerated Texan goes after prosecutor and process that sent him to prison

12/20/11

Legal stories often have three themes: fair, unfair or egregiously unfair. And it's the latter that seems to have the best chance of changing the system.

Take the case of Michael Morton, a Texan man wrongfully jailed for 25 years for the murder of his wife. Morton's lawyers are trying to turn the tables on the prosecutor who sent Morton to prison and their effort might help bring the state a more open discovery process for criminal cases.

A quarter of a century ago, Morton, now 57 years old, was imprisoned for the fatal beating of his wife, the Los Angeles Times reports. The lead prosecutor in the case was Ken Anderson, now a state District Court judge. This past fall, Morton's lawyers concluded an investigation of Anderson and the case that resulted in Morton being freed. "The problem in the Morton case is not that the system failed, but that Judge Anderson did not play by the rules," the report says. Anderson, they say, illegally suppressed evidence that would have proven Morton's innocence and even failed to provide documents sought by the trial judge. At the hearing on Monday where Morton was officially exonerated, Morton's legal team asked a judge to set up a "court of inquiry" to examine Anderson's behavior.

Typically, this kind of a request goes to the presiding judge of the district, but since that judge has recused himself, the decision will probably go to Texas's Supreme Court, the Times says. Anderson's lawyer, Eric Nichols, called the investigation "one-sided" and points out that Anderson has apologized to Morton, though he has denied misconduct. University of Texas Professor Susan Klein tells the Times it would be "incredibly unusual" for Anderson to be prosecuted or even disciplined over the case.

Still, Barry Scheck, one of Morton's lawyers and a co-founder of the Innocence Project, is aiming for broader repercussions. "We are really hoping there will be hearings and not just in Texas, but across the country to get a remedy to this problem to make sure this never happens to anybody else again," Scheck says. One way of doing that is to enact the kind of "open file" laws other states now have guaranteeing defendants access to all prosecutorial files. A state committee created to prevent wrongful convictions urged the Texas legislature last year to enact such a law, and a spokeswoman for Gov. Rick Perry says he supports the idea.

One in three adults have been arrested by age 23, study finds

12/20/11

We Americans are part of a very incarcerated society.

That's one way of looking at a study out Monday and reported by the New York Times that finds nearly a third of U.S. citizens have been arrested for a crime by the age of 23. It's a staggering demographic and legal piece of information to contemplate, and compares with the 22 percent rate found by a 1965 study. "This estimate provides a real sense that the proportion of people who have criminal history records is sizable and perhaps much larger than most people would expect," New York State University at Albany criminologist and study co-author Shawn Bushway tells the Times. The reasons aren't clear. It might be a sign that the U.S. justice system has become more aggressive, or be partly to blame on the surge of drug-related crimes over the decades.

But its implications go beyond the law, culturally and even economically, especially for those who have been arrested. Criminal justice experts point out to the Times that prospective employers these days often conduct criminal background checks before they hire someone.

Summary Judgments for Dec. 19

Summary Judgments for Dec. 16

Summary Judgments for Dec. 15

Follow us on Twitter: @ReutersLegal