By Carlyn Kolker

No go

6/13/12

The International Keystone Knights, a Klu Klux Klan group in Union County, Georgia, wants to clean up a highway in the Appalachian Mountains. The state's transportation department, however, denied the organization's application to the "Adopt-A-Highway" program, citing the white supremacy group's "history of inciting civil disturbance and social unrest," according to The Clarion Ledger. The Keystone Knights say they may turn to a lawsuit challenging the state's decision. "If this does go into a litigation situation, the state cannot really afford to be wasting the money on something based on somebody else's beliefs," a representative of the Georgia group told the newspaper.

Organizations in analogous situations in other states have won legal battles before, the Ledger says, possibly boding well for the International Keystone Knights.

Eyes wide shut

6/13/12

He is federal prisoner number 84888-054, but readers might know him better as Bernie Kerik, the former New York City police commissioner who pleaded guilty to tax evasion and lying to White House officials. "Going to prison is like dying with your eyes open," he tells the New York Daily News in an interview from a minimum-security prison in Cumberland, Maryland, where he is serving a four-year sentence. Kerik says he reads a lot (he's notched up 250 books, all non-fiction), writes his own books, exercises (calisthenics) and teaches life-skill classes to other inmates. He doesn't have a lot of post-release plans, the News says, except to return home.

Payday

6/13/12

Company lawyers often complain about their salaries, which, compared to the fat paychecks of their counterparts in big law firms or banks, can seem a bit skimpy. So Anthony Chiofalo, general counsel to crane company Tadano America, allegedly came up with a novel, albeit illegal scheme, according to Texas prosecutors. He submitted legal bills from fictitious law firms to Tadano, and when the company paid he deposited the money into his bank account. Last week Texas prosecutors filed criminal charges against Chiofalo, who is at large, according to the Houston Chronicle. In addition to the criminal charges, Chiofalo was also sued in a civil complaint by Tadano, for theft, conversion, fraud and breach of fiduciary duty, according to Courthouse News.

Hypothetically speaking

6/13/12

When "Los Tocayos Carlos" was released last month, it was something of a sensation in legal circles. The book-length project explored how Carlos DeLuna was executed -- wrongfully, in the opinion of project author and Columbia law professor James Liebman -- by the state of Texas in 1989 for the stabbing death of a gas station worker in Corpus Christi. The New York Times celebrated Liebman's work, noting in an editorial the "grievous injustice that was very likely done in the DeLuna case;" Reuters' Terry Baynes wrote a post on the professor's work for this humble blog; and many noted the deep analysis Liebman and his students applied to an intricate set of facts.

Now a critic has set his sights on the project. Ted Frank, best known for his work fighting class actions, has penned a scathing criticism of "Los Tocayos Carlos" on the Manhattan Institute's Point of Law blog. Frank doesn't buy that the story serves as an indictment for the system of capital punishment and argues that it has been "manipulated for political purposes."

Frank's post sticks less to a factual argument and treads more into the territory of the hypothetical, in this Summary Judgments writer's opinion. For example, he contends that even if DeLuna had been sentenced before the death penalty existed in Texas, he would have gotten life without parole and would have been sitting in prison, without a team of Columbia scholars to investigate his case. And even if DeLuna didn't commit a murder, it's "entirely in the realm of possibility" that he participated in an armed robbery gone awry, for which he could still have been sentenced to the death penalty, says Frank. The possibility that the prosecutors and courts committed errors in the DeLuna case doesn't translate into an overarching argument against capital punishment. He writes, "If the argument is that a mistake is possible in the one-in-a-million case too implausible for 'Law and Order' ... that weighs in favor of the Scalia/Thomas argument that the error rate in death penalty cases is not a reason to oppose the death penalty."

On the other hand, opponents of capital punishment would tell you that they live by the adage that it is better to let 100 guilty people go free than to sentence one innocent person to death.

I reached out to Liebman, who said Frank's statements were "from top to bottom...speculative or simply wrong." Liebman pointed to the fact that Frank refers to DeLuna and Carlos Hernandez, the person whom Liebman identified as the likely perpetrator of the killing, as cousins. "There is no basis for saying that," Liebman said. He also disputed Frank's statement that DNA evidence wasn't available at the time. Not only were DNA investigations available by the time DeLuna was executed, he said, but other forensic evidence taken at the crime scene, specifically fingerprinting evidence taken from the knife used to stab the victim, was mishandled by the police.

Frank wasn't immediately available, but responded by email late Tuesday night pointing out that since all the protagonists in the case are dead, "everyone is speculating...My felony murder theory is less speculative than Liebman's hypothesis that DeLuna is entirely innocent of wrongdoing because my theory is more consistent with the facts," Frank wrote.

He had a few other things to say. On the subject of DNA testing, Frank stood by his original position. As for the assertion that DeLuna and Hernandez were cousins, Frank said it was an error that he attributes to a story in the Guardian, and he updated his post to reflect a correction.

Frank's post makes the criticism (in this writer's opinion, a valid one) that there has been very little commentary from supporters of capital punishment in the press coverage of Liebman's story. Frank seems to have accomplished the goal of bringing attention to a differing opinion. Beyond that, we're not sure whether he sufficiently turned Liebman's report on its head.(Updated to include Frank's comments).

(Reporting by Carlyn Kolker)

Summary Judgments for June 12

Summary Judgments for June 11 

Summary Judgments for June 8