By Carlyn Kolker 

Shorter sentences in child pornography cases 

2/13/12

In 2005, the U.S. Supreme Court issued its landmark opinion in U.S. v. Booker, which gave federal judges far more leeway in determining criminal sentences than they had previously. One consequence of Booker, the Boston Globe reports, is that in pornography cases, judges increasingly are handing down sentences that are lower than what prosecutors sought. In 2010, for example, federal judges gave sentences below the recommended guidelines in 43% of the child pornography cases, versus an 18 percent departure from the guidelines in all other cases, according to U.S. Sentencing Commission data. The Globe looks at a few Massachusetts cases to illustrate the statistics: In one, U.S. District Judge Michael Ponsor gave a defendant four years of probation, rather than the six to eight years suggested by federal sentencing guidelines. Prosecutors, while recognizing that the guidelines may need to be re-written, note that both Congress and the public have asked for harsher and harsher sentences for child pornography. "There's been recognition nationwide that there's been an epidemic," says James Lang, a federal prosecutor in Boston.

The U.S. Sentencing Commission with hold a hearing on Wednesday in Washington to discuss the issue of sentences in child pornography cases.

Where the jobs are 

2/13/12

Amid all the dire news about legal services jobs, the Washington Post brings good new tidings: that law firms are opening in the nation's capital (Summary Judgments' birthplace) at "a rate not seen since before the recession." At least seven out-of-town law firms have opened up in the city in the past 10 months, most in an attempt to increase their regulatory and international law practices. One of the first was Los Angeles-based litigation boutique Quinn Emanuel Urquhart & Sullivan, which opened its D.C. doors in September. As part of its bid to expand its international disputes and government investigations practices, the firm brought on board William Burck, a former Bush administration lawyer. (Reuters also had a story on the Burck hire.) Another newcomer seeking to increase its regulatory practice is Allen & Overy, a global firm with London roots. Jeffrey Lowe, of legal recruiting firm Major, Lindsey & Africa says there is a "prestige factor" related to being in D.C. Maybe we never should have left.

Defining the strip search 

2/13/12

What are the limits of a school search? In 2008, a North Carolina school for at-risk kids pulled a 14-year old girl through a metal detector, forced her to un-tuck her shirt and pull forward her bra, according to the Associated Press. The search turned up a white powder identified as Percocet, but the girl's lawyer argues the search was unconstitutional. For its part, the state asserts that students at so-called alternative schools like the one attended by the student have lower expectations of privacy "because most of the student body has had problems with substance abuse and violence," the AP notes. North Carolina has appealed theappeals court finding that the search was "degrading, demeaning and highly intrusive," and the case now will be considered by North Carolina's top court.

The limits of school searches has gone up to the U.S. Supreme Court in recent years - in 2009 the U.S. Supreme Court ruled in an 8-1 decision that a strip search of an 13-year-old girl violated the Constitution. At the time, the case generated an outspoken commentary from Justice Ruth Bader Ginsburg, who told USA Today that her colleagues on the bench didn't sympathize with the young girl: "It's a very sensitive age for a girl. I don't think that my colleagues, some them, quite understood." Nevertheless, Ginsburg's view won out.

New partners for British law firms 

2/13/12

British lawyers are getting ready for some new bosses, the Financial Times reports. Last fall, new rules went into effect allowing non-lawyers to make financial investments in United Kingdom law firms. Now, about one-third of the country's top firms say they are considering tie-ups with non-legal entities, according to recent survey by accounting and investment management firm Smith & Williamson suggests. One example of such an investment that has taken place in recent months: Slater & Gordon, a publicly-traded Australian law firm, said it is buying U.K. firm Russell Jones & Walker. Rest assured, U.S. lawyers: the USA has no such rules allowing for outside ownership.

A well-timed warning 

2/13/12

Ex-lovebirds, beware. If you are involved in a divorce, thinking about getting a divorce, or advising friends and family about a divorce, here's our advice: stay away from text messages. A survey by the American Academy of Matrimonial Lawyers reports a major spike in the use of text messages as evidence in matrimonial cases. Ninety-four percent of surveyed matrimonial lawyers said they saw an uptick in text message and "smart phone evidence" in divorce cases. (The survey was the first of its kind, so there's no point of comparison).

I checked in with Kenneth Altshuler, president of the American Academy of Matrimonial Lawyers and an attorney at Childs, Rundlett, Fifield, Shumway & Altshuler in Portland, Maine. He said the new genre of evidence was most likely to surface at contested divorce or custody trials - versus during negotiations. Text messaging evidence can provide a treasure trove of information at cross-examination, says Altshuler. Scenario One: it can be used to refute an allegation. Say the husband on the stand says, "she never told me she would be late to pick up the kids, and so I left them alone." The cross-examining lawyer can pull out a text that says, "I'm going to be late." Scenario Two: It can be used to undermine an adversary's credibility. Say the husband on the stand says, "I always treated my wife with respect," but text messages have him calling her by unsavory names. That doesn't help a case.

"It's quick and angry, so you have people who send back an emotional response, like 'I wish you were dead,'" says Altshuler. "If you are having a custody battle, how you behave is really important."

A previous survey by the matrimonial group concluded that Facebook, too, was playing a greater role as evidence at divorce trials. Altshuler says he conducted a trial in which his adversary told a judge he'd been sober for a year, but a photo on Facebook showed him at a holiday party with a beer.

"Every client gets the instruction: close your Facebook page now. They don't do it, but I give them that instruction," says Altshuler.

Note to readers, on this Valentines Day, send flowers, chocolate -- and pleasant text messages.

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(An earlier version of Summary Judgments incorrectly stated the day of a U.S. Sentencing Commission hearing on child pornography offenses and federal sentencing guidelines. It is Wednesday, February 15, not Thursday, February 16.) (Reporting by Carlyn Kolker)