Judge Removed From Office For Phone Rage

Court News 2008/06/10 07:19   Bookmark and Share
Niagara Falls City Judge Robert Restaino was removed from office in an apparent case of telephone rage. Frustrated that no one owned up to the cacophonous cell phone that rang in the back of his courtroom, Restaino sent 46 defendants to jail.

   The New York Court of Appeals said removal was proper, because Restaino acted in a way that eroded confidence in his ability to render fair, rational judgments.
When the cell phone went off, Restaino told the defendants in his courtroom, "Now, whoever owns the instrument that is ringing, bring it to me now or everybody could take a week in jail and please don't tell me I'm the only one that heard that."

After a fruitless inquiry to find the owner, he reiterated, "Everyone is going to jail; every single person is going to jail in this courtroom unless I get that instrument now. If anybody believes I'm kidding, ask some of the folks that have been here for a while. You are all going."

He questioned the 35 remaining defendants and recalled 11 defendants whom he had previously released before the phone rang. Dissatisfied with their responses, he revoked their recognizance release and imposed bail. He even set bail for a petitioner who had been standing next to the judge when the phone rang in the back of the room.

He then ranted about the breach of courtroom decorum. "You know, for some of you folks, this hurts me more than you imagine because someone in this courtroom has no consideration for you, no consideration for me and just doesn't care," he said. "Some of you people may not be in the (same) economic situation (as) this selfish person ... (is who) put(s) their interests (sic) above everybody else's. They don't care what happens to anybody."

The 46 defendants were transported to the city jail, booked, searched and placed in holding cells. Thirty-two defendants posted bail, while the remaining 14 who could not post bail were shackled and bused to the county jail.

The state court said the circumstances qualified as "truly egregious" to merit removal from office. "(I)t is ironic that petitioner displayed the very attributes by which he accused and summarily punished each defendant," the court added. Restaino had "more than 46 chances to correct himself and failed to do so."
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Black Public Defenders Sue Atlanta

Court News 2008/06/05 07:51   Bookmark and Share
In pursuit of "greater diversity," the City of Atlanta laid off five black female public defenders who were better qualified and had more experience than the white men it retained, the women claim in Federal Court.

The women claim, "the decision makers regarding the reduction in force laid off plaintiffs as part of an effort to achieve what they perceived as greater diversity in a department that had previously had primarily African American and female employees."

The woman want reinstatement, back pay, damages and costs, alleging racial and sexual discrimination.
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9th Circuit Halts Logging In Sierra Nevada Forest

Court News 2008/05/15 07:39   Bookmark and Share
The 9th Circuit has blocked the government's plan to log parts of the Sierra Nevada forest, rejecting the U.S. Forest Service's argument that it needs to cut and sell large trees in order to raise money for forest-fire prevention.

Sierra Forest Legacy and the state of California appealed the denial of an injunction against the Forest Service to ban the cutting of larger trees, in which several wildlife species thrive. Environmentalists claimed that the agency's plan to sell off trees to cover the costs of fire prevention failed to comply with the National Environmental Policy Act.

The Forest Service shirked its duty to "rigorously explore and objectively evaluate all reasonable alternatives" to logging in the Basin, Empire and Slapjack sites of the Sierra Nevada forests, plaintiffs claimed.

"In one sale, a fire hazard can be removed and the USFS paid so that it can remove the fuel of future fires," Judge Noonan wrote, acknowledging the seeming practicality of the plan. "Two for one always has an attractive ring. But are there no alternative ways of getting money to do the clearing that is imperative? Obviously, there may be."

Noonan suggested that the mere existence of a lumber-for-funds plan indicates that Congress needs to step in and provide more funding for forest fire prevention. Plaintiffs suggested other alternatives, including reprioritizing other funding and altering the Forest Service's fuel treatment program.

So long as the alternatives remain unexamined, the agency's plan violates federal law, Noonan wrote.

The court stressed that it was not deciding the merits of the case, but ruling that the government's choice of funding for fire reduction does not outweigh the state's preservation interests.
 
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Supreme Court rules magistrates may preside

Court News 2008/05/15 07:36   Bookmark and Share

The US Supreme Court ruled Monday in Gonzalez v. United States that allowing a magistrate judge to oversee jury selection does not deprive a criminal defendant of the right to a jury trial and complies with the Federal Magistrates Act. The holding affirmed a judgment of the US Court of Appeals for the Fifth Circuit that defendant's counsel may waive the right to have an Article III judge preside over voir dire, and that it was not error to proceed without first getting the defendant's personal consent. Justice Kennedy announced the judgment of the Court; his opinion was joined by Chief Justice Roberts and Justices Stevens, Souter, Ginsburg, Breyer, and Alito. Justice Scalia filed an opinion concurring in the judgment, and Justice Thomas wrote a dissent.

In affirming the Fifth Circuit ruling, Justice Kennedy wrote:

Numerous choices affecting conduct of the trial, including the objections to make, the witnesses to call, and the arguments to advance, depend not only upon what is permissible under the rules of evidence and procedure but also upon tactical considerations of the moment and the larger strategic plan for the trial. These matters can be difficult to explain to a layperson; and to require in all instances that they be approved by the client could risk compromising the efficiencies and fairness that the trial process is designed to promote.

In a separate concurrence, Justice Scalia agreed with the conclusion but not with the reasoning upon which it was based. He wrote:

I would not adopt the tactical-vs.-fundamental approach, which is vague and derives from nothing more substantial than this Court’s say-so.

In his dissent, Justice Thomas advocated overruling the precedents for the decision and wrote:

Where, as here, a mistaken interpretation of a statute leaves the Court with no principled way to answer subsequent questions that arise under the statute, it seems to me that the better course is simply to acknowledge and correct the error.

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Makers of Paxil, Zoloft Win

Court News 2008/04/25 07:48   Bookmark and Share

In a significant victory for drug manufacturers, the 3rd U.S. Circuit Court of Appeals has ruled that the makers of Paxil and Zoloft cannot be sued for failing to warn of a risk of suicide because the Food & Drug Administration has explicitly refused to order such warnings.

Voting 2-1 in a pair of cases where the lower courts issued conflicting rulings, the 3rd Circuit found that such lawsuits must be pre-empted because they directly conflict with action already taken by the FDA.

Writing for the majority, 3rd Circuit Judge Dolores K. Sloviter said the FDA has "actively monitored" the possible risk of suicide from taking the class of antidepressant drugs known as selective serotonin re-uptake inhibitors, or SSRIs, for two decades, and concluded that the suicide warnings demanded by plaintiffs "are without scientific basis and would therefore be false and misleading."

But Sloviter, who was joined by visiting Judge Jane A. Restani of the U.S. Court of International Trade, emphasized that the ruling was a narrow one.

"Our holding is limited to circumstances in which the FDA has publicly rejected the need for a warning that plaintiffs argue state law requires," Sloviter wrote in Colacicco v. Apotex Inc.

In dissent, 3rd Circuit Judge Thomas L. Ambro said he would have allowed both cases to go forward.

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Paper Wins Dismissal Of Libel Suit

Court News 2008/04/21 07:35   Bookmark and Share
     A circuit judge has dismissed with prejudice a defamation lawsuit against the Madison County Record. Amiel Cueto, whose brother, Lloyd Cueto, was running for judge in St. Clair County, claimed the Record defamed Amiel by reporting that Amiel was a power broker who controlled judges in the county.

    G. Michael Prall, of the 11th Circuit in Bloomington, was assigned the case after the Illinois Supreme Court granted the Record's request that the case be removed from the 20th circuit, where it was filed.

    Amiel Cueto, who served six years in prison for obstruction of justice, claimed the Record defamed him by calling him a power broker and stating that he owned 15 of 17 St. Clair County judges in the mid-1990s.

    The Record sought dismissal, based on the alleged truth of the statements.
    Judge Prall stated in his 5-page decision that while the article did not use the words power broker as a flattering term, it did not suggest criminal activity.

    As to Cueto's controlling St. Clair judges in the 1990s, Prall wrote, "There is no question that witnesses made statements in official court proceedings to the effect that the plaintiff controlled judges in the mid 1990s. Plaintiff's contention that these statements were untrue would not affect the right of the defendant to report these statements."
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