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December 2005

Supreme Court hears arguments in abortion case

Today , the Supreme Court, with Chief Justice John Roberts at its helm, heard oral arguments in Ayotte v. Planned Parenthood of New England, the first abortion case that it has accepted in five years.  This case is being coined as having the potential to eliminate the requirement that abortion laws must include an  exception for the protection of the woman's health.  The case arises from a challenge to a New Hampshire law that prevents physicians from providing an abortion to a teenager under the age of 18 until a parent has been notified and 48 hours have elapsed following the notification.  The law does not include an exception for the health of the mother.  Under the law, a physician who performs an abortion on a minor without parental is subject to both civil liability and criminal charges.

The Bush administration has joined the case and seeks to uphold the New Hampshire law.

The simplified issues presented were 1) whether the United States First Circuit Court of Appeals applied the correct legal standard and 2) whether laws restricting abortions must include medical emergency exceptions to protect the health of the mother.

Petitioner's questions for review and Respondent's questions for review can be found in Wikipedia's entry on this case.

The decision that is under review can be found here.

There is a website  devoted to the case that includes the briefs  that have been submitted to the Court.

To bolster or not to bolster?

If you practice in the Fourth Department, it would appear that it's probably not the best tactic.  On November 10, 2005, in Carr v. Burnwell Gas of Newark, Inc. , the Court concluded that the admission of a written statement of  the defendant over the objection of the plaintiffs' counsel constituted bolstering and was not harmless error, thus warranting reversal of the judgment.

Defense counsel sought to introduce a written statement of the defendant that had been affirmed under penalty of perjury.  In that statement, the defendant asserted that the plaintiff veered into his lane, which comported with his testimony at trial.  The plaintiffs' counsel objected on the basis of improper bolstering.  The defense also elicited testimony regarding two oral statements made by the defendant.  Neither was preserved for review because plaintiff's counsel made only a general objection to the first statement, and failed to object to the second statement.

The Court considered the admissability of only the written statement, and concluded that it did not constitute a recent fabrication simply because the plaintiffs' challenged the reliability of the defendant's recollection of the accident.  The Court clarified that recent fabrication "means...that the (plaintiffs are) charging the witness not with mistake or confusion, but with making up a false story well after the event."

The Court also held that the statement did not constitute an admissible business record, given that the defendant was under no business obligation to report the incident to the police and, further, that the statement did not constitute a party admission, as it was consistent with the defendant's trial testimony.

Accordingly, since no exceptions applied which would allow the statement to be admitted, the admission of the statement consituted improper bolstering.  The Court concluded that the error may have very likely prejudiced the plaintiffs' case, thus requiring reversal of the judgment and a new trial. 

All you need to know about the Patriot Act

A number of provisions of the Patriot Act will expire on December 31, 2005 unless renewed by Congress.  Last week, Congress  was unable to reach an agreement  regarding renewal of the provisions. Congress will reconvene  in December and attempt to reach a compromise before the December 31st deadline.

In the meantime, here's your chance brush up on the Patriot Act.  The full text of the Patriot Act can be found here .  Senator Patrick Leahy of Vermont offers a section-by-section analysis of the Act on his website.  Wikipedia also has an informative page on the Act.

The current status of legislation relating to the provisions that are due to expire at the end of the year can be found at the Library of Congress' website .

Finally, legislative updates regarding the Act can be found at Reform the Patriot Act, an ACLU blog devoted to the Patriot Act.

Ineffective X 2

In People v. Turner, 2005 N.Y. Slip Op. 08766, the defendant, who had been indicted for murder in the second degree, sixteen years after the commission of the crime, was subsequently convicted of manslaughter in the first degree, an offense with a five year statute of limitations.  The Court of Appeals held that appellate counsel was ineffective for failing to raise the statute of limitations defense and for failing to argue that trial counsel was ineffective due to his failure to preserve the statute of limitations defense.  Likewise, the Court held that trial counsel was ineffective for failing to preserve the defense.  The Court concluded that this was the rare case in which a single lapse, by otherwise competent counsel, constituted a deprivation of the right to effective legal representation in light of the strength of the statute of limitations defense.

Additionally, the Court noted that appellate counsel had chosen to raise only one point on appeal, and "(t)his might be a different case if defendant's appellate counsel had found herself choosing among half a dozen, or even four or five, substantial arguments, and had decided not to make them all."

Alito round up

Here's a round up of information available online regarding the divisive Supreme Court nominee, Judge Samuel Alito.

The following are links to in-depth analysis of Judge Alito's decisions on a variety of legal issues:

  • From First Amendment Center's web site, an online symposium on Alito's First Amendment decisions
  • From the Reporter's Committee for the Freedom of the Press web site, Alito's record on free press issues
  • Two articles on Alito's judicial stance on criminal issues, one from the Star Ledger and one from the National Law Journal
  • A summary of high profile cases with majority opinions and dissents from Findlaw

A summary of everything Alito-related, minus the kitchen sink, from the University of Michigan Law Library can be found here.

And, all of his published opinions are available here at askSam in a searchable format.