Some people never learn...

Remember the DC administrative law judge who claimed $54 million in damages over a missing pair of pants? He's at it again, although this time he is only after $1 million and his job back.

Inside the mind of a juror

Trial attorneys often wonder what goes on inside the jury room. Here's a very detailed look thanks to a juror in the Uma Thurman stalking case who also happens to be a reporter for the Wall Street Journal.

How did this slip through?

Not being a patent attorney, I don't pay much attention to patent law. There are occasionally stupid patent decisions that get my ire up, but by and and large the ins and outs of patent procedure, but apparently two-thirds of the patent judges were unconstitutionally appointed. DoJ hasn't even denied it, and constitutional lawyers are all in agreement that it's not even close.

This could REALLY muck things up for the patent bar, which (unsurprisingly) didn't notice the error because patent attorneys are generally not accustomed to thinking about things constitutionally. Imagine all the patent hearings and appeals that must be redone, that are invalidated, all those millions once again at stake.

The dark side of DNA

The Times has an excellent article on "surreptitious sampling," the police practice of collecting DNA samples from suspects without their knowledge (and without a warrant). In a typical case, the cops follow a suspect who may happen to be smoking a cigarette or drinking a soda. The cigarette butt or soda can collects trace amounts of saliva, which contains the suspect's DNA. The suspect throws the butt on the ground (with his DNA on it), the cops pick it up, and then they have a sample.

Prosecutors love the practice, defense attorneys hate it. I don't know how I feel, to be honest. The ordinary rule is that if a person throws something away, they lose any expectation of privacy they may have in the item- no probable cause. The ordinary rule, however, was for objects. In these cases, what the cops want is the traces of DNA left on the object, something that the suspects may not have even realized they were leaving behind. I honestly don't know what to make of this right now, but I am damn intrigued.

A return to blawgging

I haven't been posting lately. By lately, I mean in the past 10 months. I am not really at liberty to discuss it, but I had to focus on other things. My situation is stabilizing, and I really miss writing about the law. So I am back.

This is patently offensive

The Supreme Court of Washington has affirmed a murder conviction that was based in large part by DNA evidence obtained through absolutely appalling trickery, even by cop standards. Trying to close a cold case, the police concocted a ruse to obtain the DNA- they sent the suspect a letter from a fictitious law firm, claiming that he was a class member in a (phony) class action. Naturally, he signed a few documents and licked an envelope.

They got the DNA off the envelope.

This is an outrage! The cops subverted the legal process, claiming to be his attorneys! This is an instance in which bad facts made bad law. The guy was a rapist and murderer, so why let "technicalities" like the Constitution stand in the way.

I have been uninspired recently

I tried to hard to overreach with this blog. I think I wrote some interesting things at times, but I also went for weeks without anything to say.

When you cast too wide a net, you will come up empty.

Yet, I don't particularly want to reel in my focus. I am a law geek, first and foremost. I love the law, including matters outside my immediate practice.

Which is why Scott v. Harris is so fascinating. It is a summary judgment case on the issue of whether a police officer has qualified immunity when using force to stop a high speed chase. The rule at summary judgment is to accept the non-moving party's version of events as true, and then decide if there any issue of fact worthy to reach a jury.

Here, the plaintiff alleged that he was moving slowly and carefully, and that force was unnecessary. The defendant argued that the plaintiff was, essentially, a bat out of hell. Had the Court followed the usual rule, and summary judgment denied. Instead, the Court did something truly unique- they found their own facts, based on a video of the chase, then made the video part of the public record in the case, including it as part of the opinion (92Mb RealPlayer file).

Because of the video, the Court found that qualified immunity existed, 8 to 1. This is a first- the Court is usually deferential to the formalities of the law. Here, the formalities were just thrown out the window. Good- formalities run the risk of becoming meaningless lawyer's tricks when used to thwart the obvious (and just) outcome.