Boston Decision Radically Alters Libel Laws

Robert J. Ambrogi is a Massachusetts lawyer and journalist. He is executive director of the Mass. Newspaper Publishers Association. He publishes the Media Law Blog, and this week sent chills down my spine with a first amendment libel case that can have enormous impact.

Here are his opening words:

"A bedrock principle of libel law is that truth is an absolute defense. If what you say about someone is true, the person cannot win a libel case against you, even if you defame them. The federal appeals court in Boston put a jackhammer to the bedrock this week. In Noonan v. Staples, it ruled that even a true statement can be subject to a libel lawsuit if it was said with actual malice. In so deciding, the three-judge panel did an about face, reversing its own earlier decision in the same case. You need not be superstitious to appreciate the import of this Friday the 13th ruling. It is the most dangerous libel decision in decades. The decision puts a crack in the bedrock that threatens to undermine free speech."

Here is the rest of the link:
http://www.legaline.com/2009/02/think-you-know-libel-law-think-again.html

Florida's Supreme Court recently rejected the principle of a 'false light' tort of defamation. It was a close call. It was a big case. So is this one. If you practice in this area, it is a case you need to read.

Los Angeles entertainment lawyer Gordon P. Firemark blogs: "If allowed to stand, this case could make anybody a potential defendant. It will certainly have a chilling effect on important forms of speech, such as documentary films and many forms of investigative journalism."

Innocence Project Challenges Florida Execution

Today the Innocence Project of Florida (IPF) reiterated its intent to test the remaining DNA evidence in the case of Wayne Tompkins. Mr. Tompkins was executed on Wednesday, February 11th, in Raiford, Florida after being found guilty of murdering Lisa DeCarr in 1983.

IPF believes that further testing in the case could reveal that the body did not belong to the alleged victim, meaning Mr. Tompkins had been convicted of a murder that did not take place.“We have a remarkable case with Mr. Tompkins,” said Seth Miller, Executive Director of the Innocence Project of Florida. “The State supported this match between the body and the victim with a partial dental record, which was pretty unconvincing. But on top of that, several people have signed affidavits saying that they’ve seen her alive since the murder. If that’s the case, then Florida just killed an innocent man.”

If it were found that Mr. Tompkins was innocent of the 1983 murder, it would be the first case in American history of an executed man being scientifically proven innocent posthumously. In 2000, though, Frank Lee Smith was exonerated by DNA testing 11 months after he died of cancer on Florida’s Death Row.

“These agencies need to know we’re serious about going forward with testing, and we want to make sure they are preserving all of the evidence pursuant to Florida law,” said Miller. “If the State Attorney is convinced that Mr. Tompkins was guilty, they should support testing to put the doubts to rest."

Short blog on this issue. As a society, we do not want killers to go free. Nor do we want innocent people to be killed. It is that simple. But what have we learned, sadly? The faces of exoneration are many. We have discovered through the Innocence Projects nationally that too often we have criminally prosecuted the wrong person and incarcerated an innocent man. We have thus set justice back. It may not be what we intended, but in our rush to feverishly prosecute, we have instead wrongly persecuted. Injustice has been the only victor. We are all losers as a result, not just the man wrongly sentenced.

See also

http://browardlawblog.blogspot.com/2009/02/was-executed-convict-innocent.html

ACLU, Masinter, Challenge Tasers in Supreme Court

MIAMI – In a petition submitted to the United States Supreme Court on Tuesday, the American Civil Liberties Union of Florida asked the nine Supreme Court Justices to rule that a law enforcement officer’s excessive use of force with a Taser is unconstitutional.

The case offers the Supreme Court its first opportunity to address Taser abuse in an incident captured by a videocamera mounted on the patrol car dashboard of the Washington County, Florida Sheriff’s Deputy, Jonathan Rackard. Deputy Rackard administered three five-second-long 50,000 volt discharges of a Taser to Jesse Buckley with the Taser in “drive-stun” mode, which means that the device was pressed directly against the skin instead of from a distance.

The ACLU lawsuit alleges that the deputy’s actions violate the Fourth Amendment, since his only purpose was to inflict pain upon an already-handcuffed arrestee to make him stand up. Buckley’s lawyer, James V. Cook of Tallahassee, Florida, posted the video on YouTube at the suggestion of the dissenting member of the Eleventh Circuit panel, Judge Beverly Martin.

You can view the video of Jesse Buckley being actively tased by Deputy Rackard at: http://www.youtube.com/watch?v=SWC7iSGCk-s

Cook has complained that the Eleventh Circuit’s ruling licenses police officers to use Tasers as cattle prods to inflict gratuitous pain on a nonviolent handcuffed arrestee, simply to herd him towards a police car.

"The repeated and excruciatingly painful application of 50,000 volts of electricity was once the exclusive province of the agents and implements of torture, and cannot be condoned in a civilized society,” said Maria Kayanan, ACLU of Florida Associate Legal Director.

Although Mr. Buckley never once actively resisted arrest nor attempted to flee, the officer continued to tase him solely to cause pain. The federal district court held that the officer was not entitled to qualified immunity, but by a split decision, the 11th Circuit Court of Appeals panel reversed that opinion.

“It takes us back several decades to a time when some law enforcement agencies gave officers permission to use old-fashioned electric cattle prods, along with dogs and fire hoses, to control people who were not being violent," said his lawyer, James Cook. But when you create a world where waterboarding and torture becomes the official policy of a Presidential administration, how much easier it is to justify a few volts here or there.

A PDF of the petition can be downloaded at: http://www.aclufl.org/pdfs/BuckleyCert-final.pdf

The ACLU of Florida filed the petition in the U.S Supreme Court on Tuesday.
Counsel for Jesse Daniel Buckley is Michael R. Masinter, ACLU Board Member and Professor of Law at Nova Southeastern University Shepard Broad Law Center; James V. Cook; Randall Marshall, ACLU of Florida Legal Director; and Maria Kayanan, ACLU of Florida Associate Legal Director. Good luck, guys.

Supreme Court Denies "Judge" Abramson Seat

The Supreme Court has ruled against attorney William Abramson in his quest to assume the judicial seat he won in a hotly contested election last Fall.

In December, the justices suspended Abramson for 91 days for courtroom misconduct in front of Judge Richard Wennet, who was defeated by Abramson in August by 61 votes. The suspension took effect four days before he was to take the bench last month.

The legal issue debated by the court was whether a suspended lawyer may assume a judicial role, or whether the suspension rendered it constitutionally impermissible.

I received this notice through the online breaking news edition of the Daily Business Review, a program well worth having in your office. In this world of instant communication and immediate availability to everything newsworthy, online subscriptions are the dynamics of the present and the wave of the future. No one owns the Internet, and only childish minds would suggest one party is copying another when they report and comment on news of wide public interest.

The truth is that the Internet’s astounding capabilities, from Google Earth to breaking news alerts, put the world at our fingertips. Growing up in a world where my information came from hours in a library weeding through a card catalogue and searching the Dewey Decimal System, I am appreciative and grateful that my thirst for knowledge now comes to me as gushers in a fountain.

http://browardlawblog.blogspot.com/2009/01/abramson-fiasco-argued-at-supreme-court.html

http://www.dailybusinessreview.com/images/news_photos/53081/SC09-03.pdf

Abramson Fiasco Argued at Supreme Court

This from the late afternoon edition of the Daily Business Review- a detailed article by Bud Newman addressing the constitutional crisis facing the Supreme Court in whether to seat Bill Abramson.

We offer on the blog just some excerpts from the thoughtful article....

A skeptical Florida Supreme Court heard oral arguments today on whether Gov. Charlie Crist must sign a judicial commission for Palm Beach Circuit Judge-elect William Abramson even though his law license has been suspended for 91 days. “It seems completely absurd, and I think the general public would find it ludicrous, that someone who can’t practice law” can still be a judge, Justice Barbara Pariente said. However, she added, “We’re not dealing with [Florida Bar] policy, we’re looking at the Constitution” and what it requires or prohibits.

Tallahassee attorney Mark Herron of Messer Caparello & Self, who argued Abramson’s case, conceded to Pariente that “it may be absurd” for Abramson to preside in a courtroom when he is temporarily ineligible to practice law but said the Constitution does not bar a suspended lawyer from being a judge. He said it only requires a circuit judge to have been a member of The Florida Bar for the previous five years — a requirement Abramson meets.

“Our case is Abramson is eligible,” Herron told the court, citing Bar rules. Chief Justice Peggy Quince asked Herron whether there is “something kind of screwy about this situation” in which a suspended lawyer might still be a judge. Herron agreed with Quince but quickly added that “I’m not saying it. The Constitution is saying it.”

Attorney Stephen Grimes of Holland & Knight’s Tallahassee office — one of two former Florida justices arguing for The Bar — acknowledged the state Constitution does not have specific language barring a lawyer in bad standing with The Bar from becoming a judge. However, he argued the Supreme Court has ruled in other cases that the constitutional language is used “unless you reach an unreasonable or an absurd result.”

Justice Charles Wells appeared to agree. If Abramson’s commission is signed, he said, “You would be confronted with what would be a very harmful and absurd situation for the judiciary.”

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It was Charles Dickens who once wrote that sometimes 'the law is an ass.' Here it most certainly is. There once was a time when you did not have to be a lawyer to be a judge in Florida, but that was eons ago. So let's employ common sense and simply say that Abramson has a right to serve on the bench the moment his suspension is up and he is reinstated, assuming it is within the time parameters of his term that he was elected to serve. The Governor has to appoint a placeholder in his stead. (Of course I can see a subsequent argument being made that when the race was called and the trumpet sounded, he was unqualified to be at the gate and take the seat, and thus it is lost forever- but that is an argument for another day.)

This constitutional dilemma is quirky for sure, but not beyond judicial interpretation. Some would say it is not all that hard to figure out. You have to be a member in good standing just to be a traffic hearing officer or magistrate. It is a logical and reasonable extension that a constitutional interpretation of the 'five year rule' incorporates the principle that you must be a member of the Bar in good standing to be a judge. Laws are read in para materia with their companion statutes and legislative intentions. The Court has to give breadth to the spirit of the law as well as its letters.

What is your opinion?