Credit: Examiner.com

In Part I of this two-part series, I introduced the facts of People v. Tohom and the legal arguments in support of courthouse therapy dog programs.  Criminal defense attorneys, however, often object to the use of a therapy dog in the courtroom because of the potential prejudicial effect caused by using the dog and the resultant increased sympathy for the testifying victim.  Under this theory, the defense will usually argue that because the dog is so appealing, the witness becomes “more likable or vulnerable” in the eyes of the jury.

To combat this prejudicial effect, Courthouse Dogs, LLC provides a sample balancing test, based on a balancing test used in an analogous adult support person case, that could prove effective in preventing abuse.  The proposed balancing test factors include: (1) requiring a showing that there is a substantial need for the use of the dog; (2) considering potential alternatives before granting the use of the dog; (3) ensuring that the dog is only used to the extent necessary to accomplish the requisite purpose; and (4) instructing the jury about the dog appropriately.

In People v. Tohom, the trial judge concluded that the use of Rosie during the victim’s testimony was permissible, if not compelled, by “the nature of the charges in the accusatory instruments, the victim ‘qualifying’ as a child victim under Executive Law §642-a, the expert’s opinion regarding the very severe emotional and psychological stress that the victim [would] undergo while testifying and [the trial judge’s] observations.”  Additionally, the court noted that it believed “[w]ith an appropriately fashioned instruction to the jury, any possible prejudice [to the defendant would] be minimized, if not eliminated.”  In so doing, the court very closely corresponded to the proposed limiting factors.  The court obviously fulfilled the first proposed factor requiring a showing that there is a substantial need for the use of the dog by considering the nature of the charges, the mandate in Executive Law §642-a, and the victim’s severe emotional and psychological stress.  The court also obviously fulfilled the fourth proposed factor requiring appropriate jury instructions.

However, the court also stated that “[i]t is unknown whether the child can testify without the dog.  Certainly, she is better able to testify with the dog present and her art therapy clearly demonstrates her fear of the perpetrator.”  Therefore, while it is possible the court considered the second (i.e., considering potential alternatives before granting the use of the dog) and third (i.e., ensuring that the dog is only used to the extent required to accomplish the requisite purpose) factors in its decision making process, it is more likely that the court instead based its decision solely on its consideration of the first and fourth factors.

Even so, balancing tests are not mandates, and a decision can still be considered reasonable without satisfying every factor in a balancing test.  Considering the trial court’s careful consideration of the victim’s ability to testify without the dog and the potential prejudicial ramifications of allowing Rosie to assist the victim in testifying, it seems clear that the trial court, at the very least, acted reasonably in allowing Rosie to serve as a courthouse therapy dog.  Therefore, barring another legal or factual finding by the appellate court that would necessitate overturning the trial court verdict, the proper outcome of the pending People v. Tohom appeal will be to uphold the defendant’s conviction and allow courthouse therapy dogs continue to help victim’s testify in New York State courts.

Credit: The Independent E-Zine, UK

Law faculty are expected to publish their writing as an often-unwritten requirement of their profession.  Publication of a law review article adds value to the reputation of a legal scholar and influences hiring, promoting, and tenure of a law professor.  With the importance placed on publication, whether or not one is published becomes very significant.  Students sitting on law review acquisitions committees serve as gatekeepers for publication.  Because the advancement of a legal career depends to some degree on publication, it is imperative that all scholars have a “fair” chance at publication.  The problem is that diverse law journal associates are more likely to receive certain types of topics and viewpoints better than their “majority” counterparts.  Logic suggests that authors who wish to write from the viewpoint of the minority either assimilate by targeting primarily diverse journals, or go unpublished.  As a result, minority views are silenced and the future leaders of legal academia continue to lack diversity.

Because the law review is one of the first things students learn to respect upon entering law school, membership on the staff of the law review is crucial.  While writing competitions have been almost exactly the same for the past 100 years, the demographic of law students has changed.  The selection process is blind and deemed to be “fair.”  Reports show that this selection process has resulted in a remarkably low number of minorities on law reviews.  With an all-majority editorial selection committee, only certain “kinds” of people are making decisions on article selection, with far reaching effects for our legal community.  Without varied viewpoints to reach the blind spots of the “majority,” the minority voices are silenced.  The silenced minority legal scholars cannot advance like their colleagues, despite deserving the recognition and credibility that accompanies being published. This creates a racial disparity among law faculty because it is often the minority authors who choose to fill in these blind spots. The stifling of non-majority viewpoints not only cripples the advancement of non-majority legal scholars, but also denies them the opportunity to influence law reform through publication.

Whether law reviews acknowledge it or not, discrimination in our country has left a gaping hole in the diversity of our law reviews.  While statistical findings are still growing as more schools attempt to research the racial disparities on law reviews, one author in the Harvard Blackletter Journal found that 76% of law journals have no African-American members.

Although academic benefits are stripped from students of color by their non-admission to law reviews, the long term effects of this non-admission are of particular concern.  Unfortunately, unconscious discrimination is even more invidious.  If minority professors suffer from the bias toward “majority” authors through unconscious discrimination, it will further curtail their advancement.  For example, only 30% of the professoriate was female in 2010.

Many studies performed on unconscious discrimination involve modes of thinking that can influence law review editors’ selection of law review articles.  Our perceptions of writing styles and viewpoints and our interpretation and retention of information regarding certain delicate topics play on our implicit biases.  Cognitive biases can be unintentional and unconscious, but harmful nonetheless.

Placing blame on certain parties is not the answer to racial disparities on law reviews.  Instead, we need to take affirmative action to right the wrongs we can’t see.  Affirmative action is not ideal, but given the racial background in American history, it is the best solution.  Hopefully, methods will someday develop that eliminate unconscious prejudices and the systems most law reviews use now will be more meritocratic and fairer, allowing for the selection of diverse law review staffs.  Reports indicate that there are number of prestigious law journals that have experimented with some form of affirmative action in recent years, including Columbia University Law School, Cornell Law School, Harvard Law School, University of Michigan Law School, New York University Law School, The University of Pennsylvania Law School, and the University of Virginia Law School.  Setting a valuable example, these schools recognize not only the need for ideological diversity on law journals but in the legal profession as a whole.

Credit: Rob Meinychuk/Getty Images

These days, DNA is routinely used in criminal investigations to aid law enforcement in identifying perpetrators of crimes.  While 99% of human DNA is exactly the same for every person, the remaining 1% contains a string of 13 alleles unique to each person—a sort of genetic equivalent of a fingerprint.  A profile of the 13 alleles can be produced from a sample from a suspect or a crime scene and then be stored in an electronic DNA bank.

DNA data banks are searchable electronic databases, which contain profiles of DNA strands.  They are established at the local, state, and federal levels.  The banks are then linked to a searchable nationwide storage database named National DNA Index System (NDIS).  The NDIS can be searched using the Combined DNA Index System (CODIS), a powerful search software program.  Through the search, the software can link a suspect to an earlier crime or link a crime to an earlier suspect. NDIS and CODIS together form a nationwide program, CODIS, named after the software.

The DNA Identification Act of 1994 authorized the CODIS program and established the FBI as its overseer.  The database aimed to speed up the process of catching repeat offenders.  Initially, the only samples collected were from convicts with high recidivism probability, including convicted felony sex offenders and those convicted of violent crimes.  Since then, Congress has steadily increased the reach of CODIS through a series of Acts.  In the most recent update, the Violence Against Women Act of 2005 gave law enforcement the authority to collect DNA from anyone who is arrested and from any foreigner detained by federal authorities.

DNA banks prompt Fourth Amendment concerns since there are at least two warrantless searches that take place before the profile is stored.  The first search is the collection of blood or buccal swab.  Some courts have dismissed this as a minimal physical intrusion.  The second search is the DNA analysis used to create the DNA profile, and the main worry of this search is the broad scope of the information it could yield, considering the wealth of information stored in DNA.  However, in the latest challenge to the law, the court argued that since the DNA profile is limited to the 13 alleles, it currently does not expose any sensitive genetic information to the government.  The court did not consider the fact that the original DNA sample is stored in a lab indefinitely.  Some also argue that the search run in CODIS, to see if the DNA sample matches any of the evidence samples in the database, constitutes yet another search.  Courts have not had to rely on this argument, and some have outright rejected it.

While most courts have declared collection of DNA from convicts to be constitutional due to decreased expectations of privacy, courts now have the difficult task of setting the privacy expectations of arrestees.

To evaluate the constitutionality of the federal law, many courts have used the totality of the circumstances test.  The totality of the circumstances test balances the strength of the compelling interests of the government that justify a purpose of the law against the strength of the individuals’ expectations of privacy.  Using this test, United States v. Mitchell, the Third Circuit Appellate Court found that in comparison, the governmental interests overwhelmed privacy interests.  The strongest interest found on the government side was confirming the identity of arrestees, though this is not known to be the statute’s primary purpose.  The court noted that individuals’ privacy interests are protected by safeguards the federal statute placed on the use of CODIS, mainly relating to the limited access to information included in the DNA profiles.

As science develops, questions remain about the fate of DNA banks. What happens if the 13 identifier alleles are found to reveal sensitive private information, such as predisposition to diseases?  Will the safeguards of CODIS be enough to protect individuals’ privacy then?

A human "holds paws" with a dog.

In courthouses across the United States, dogs are taking the stand—not to testify, but to serve as emotional support for testifying victims and witnesses.  Courthouse therapy dogs are professionally trained dogs that provide emotional support to people involved in the criminal justice system.  Rosie, one such courthouse therapy dog, rose to national prominence in 2011 when the New York Times ran an article detailing her role in People v. Tohom, a criminal sexual assault case and also the first New York State case to utilize a courthouse therapy dog to help a victim testify.  The victim who utilized Rosie’s services as a therapy dog in this case was a 15-year-old girl; the defendant, the victim’s father, was accused of raping and impregnating his own daughter.  The victim’s therapist believed that the victim, who had been diagnosed with PTSD, would likely suffer “very severe emotional and mental stress” while testifying in court about the trauma of her experience.  With Rosie’s help, however, the victim was able to testify and her father was convicted and sentenced to prison for 25 years to life. The case is currently up for appeal in the New York State court system, and, with an onslaught of recent media attention, it has become part of the national debate about whether and to what (if any) extent service dogs should be used by courthouses.

Established by former King County Senior Deputy Prosecutor and courthouse therapy dog pioneer Ellen O’Neill-Stephens, Courthouse Dogs, LLC identifies significant legal support for the use of therapy dogs to assist crime victims and others in the courtroom, including
both statutes and case law.  Federal Evidence Rule 611, for example, tasks trial judges to “exercise reasonable control over the mode and order of interrogating witnesses and presenting evidence” so as to “make the interrogation and presentation effective for the ascertainment of the truth,” to “avoid needless consumption of time,” and to “protect witnesses from harassment or undue embarrassment.”  Marianne Dellinger argues that this Rule supports the use of courthouse therapy dogs because “the truth of testimony may be construed more easily from a relatively composed witness rather than from a distraught one” and “the use of dogs to emotionally support witnesses may preclude time-consuming breaks otherwise needed to let upset witnesses recompose themselves.”

In New York, Executive Law § 642-a governs “fair treatment of child victims as witnesses.”  Section four of the statute instructs the “judge presiding [to] be sensitive to the psychological and emotional stress a child witness may undergo when testifying.”  In People v. Gutkaiss, the New York courts interpreted this statute to permit child victims to testify while holding teddy bears.  In Gutkaiss, an 11-year-old victim testified while holding a teddy bear and the defendant was convicted of sexual assault.  Appealing his conviction, the defendant claimed that the fact that the victim held a teddy bear while he was testifying was prejudicial.  The Third Department upheld the County Court’s decision to allow the victim to hold the teddy bear, because the County Court had informed the jury that the teddy bear had “nothing to do with the truth or falsity of [the] witness’ [sic] testimony” and that the jury “should  [not] consider and evaluate the witness on [the] basis . . . he had a teddy bear in his possession.”  The Third Department additionally held that permitting the victim to hold the teddy bear was “entirely appropriate in view of Executive Law § 642–a(4), which directs the judge presiding at a trial of this type to be sensitive to the psychological and emotional stress a child witness may undergo when testifying.”

Because courthouse therapy dogs serve an analogous function to teddy bears and other comfort items, they could be permitted under a similar analysis.  But not everyone thinks courthouse therapy dogs should be allowed.  In Part II of the two-part series, I will explore these counter-arguments and analyze whether the trial court’s decision in People v. Tohom to allow Rosie to accompany the victim to the witness stand was appropriate.

This merger would have consolidated AT&T’s 95.5 million subscribers with T-Mobile’s 34 million, creating the largest mobile telecommunications services provider in the United States.  AT&T would also have replaced Verizon Wireless as the number one wireless carrier in the nation, relegating Sprint Nextel to a distant third.  The DOJ worried that the merger would have reduced competition in the wireless communication market and have led to higher prices, fewer products for consumers, and significant layoffs.  In response, AT&T argued that the merger would have been beneficial to consumers because the integration of the two networks would have created a substantial “new capacity to meet the spectacular growth in demand resulting from an increasingly on-line world.”  Additionally, AT&T denied that T-Mobile is a challenger brand, correctly pointing out that T-Mobile has continued to lose customers and market share.

Unfortunately, we will never see how these arguments would have played out in court.  Nevertheless, based on a cursory review of several recent merger attempts, AT&T should have realized that this merger had little chance of success.  In addition to saving itself the embarrassment, AT&T would have saved a $4 billion breakup fee compensating T-Mobile for the failed deal, the largest corporate breakup fee ever paid.  Since 1990, the DOJ has investigated only 4.4% of all merger filings and filed lawsuits against only 0.3%.  The proposed AT&T and T-Mobile merger, however, raised two glaring red flags: 1) AT&T and T-Mobile were direct competitors in the mobile wireless telecommunications market, and 2) the merger would have resulted in Verizon Wireless and AT&T owning an eighty percent market share, resulting in clear anti-competition concerns.

Unlike the proposed AT&T-T-Mobile deal, Proctor & Gamble’s (“P&G”) successful 2005 acquisition of razor giant Gillette for $57 billion did not raise the same anti-competition concerns.  Although the acquisition created the world’s largest consumer-products enterprise, P&G and Gillette had complementary skills and were, generally, not in competition with each other.  Specifically, P&G was regarded as an expert in marketing to women, “given its long history in household, hygiene and food products.”  Gillette, on the other hand, was “synonymous with shaving for millions of men . . . .”  Consequently, the FTC conditionally approved the merger as long as the companies divested a limited variety of overlapping assets ranging from toothbrushes to deodorant.  Instead of raising strong anti-competition concerns, analysts at the time argued that P&G’s acquisition of Gillette reflected how much the balance of power had shifted from consumer products manufacturers to enormous discount retailers like Wal-Mart, and predicted that a combined P&G-Gillette company would greatly strengthen its bargaining positions relative to such retailers.

The unsuccessful 1998 merger attempt between defense contractors Lockheed Martin (“Lockheed”) and Northrop Grumman (“Northrop”) sharply contrasts with the P&G-Gillette deal and provides a clear blueprint of a merger destined for failure.  The relative sizes of Lockheed and Northrop resembled those of AT&T and T-Mobile, respectively, and the two companies competed aggressively in the manufacture of military aircraft and several types of radar and sonar.  Moreover, the merger would have reduced the defense market to only three significant competitors, namely, the merged entity, Boeing, and Raytheon.  The DOJ had reported that, if combined, Northrop and Grumman would have received nearly twenty-eight percent of the Department of Defense’s procurement and research and development budgets.  The parallels between this merger and the wireless telecommunications services industry in the United States are strikingly clear; AT&T, Verizon, Sprint Nextel, and T-Mobile, as the “Big Four,” are effectively only in competition with each other, and consumers face several limitations in contracting with smaller, local carriers.

So why did AT&T and T-Mobile pursue their deal in the first place?  It is hard to tell, although some analysts have speculated that AT&T may simply have been overly optimistic.  An analyst with Macquarie Capital has argued that AT&T “‘made an unprecedented move bidding on T-Mobile and appear[s] to have miscalculated the risks and the regulatory opposition.’”  Another analyst with Forrester Research opined that, “‘[t]hey [AT&T] overestimated their ability to influence the regulatory agencies and influence that process.’” As AT&T considers its future, it needs to realize that it overreached in this acquisition attempt.  Due to its financial losses, it may be wisest for AT&T to wait before it attempts another merger that may be just as difficult to push through Washington.

Among the many impressive speakers scheduled to present is Makoma Lekalakala, of Earthlife Africa in Johannesburg, South Africa. She will speak on “Second Class Citizens: Gender, Energy and Climate Change in South Africa.”

Check out the following video interview of Makoma for a glimpse of what her organization does.

For the full schedule of events this weekend, click here.

One way to incentivize universities to police activities in the Greek system is to extend tort liability for hazing and illegal drinking that occurs at the universities’ fraternities and sororities.  One form of tort exposure for universities stems from a duty to “supervise and control,” based on the underlying principle that one who voluntarily renders services should perform those services in a reasonable manner.  In Coghlan v. Beta Theta Pi Fraternity, for instance, the Idaho Supreme Court held that the parents of an underage sorority sister had stated a valid claim of action against the University of Idaho for breach of a voluntarily assumed duty.  Eighteen-year-old Regena Coghlan brought a tort action for the permanent injuries she sustained from falling from her third-story fire escape after drinking at two fraternities.  The court noted that university-employed Greek Organization advisors attended the fraternity parties and even spoke to Coghlan, so the advisors either knew or should have known that Coghlan was intoxicated.  Under the “supervise and control” theory, the court held that the university should have taken steps to ensure Coghlan’s safety and they faced tort liability for her injuries.

At Cornell, the Office of Fraternity and Sorority Affairs oversees what happens at the university-owned fraternity houses. For instance, when a fraternity house hosts a party, it must register the party, and university personnel then inspect the premises for fire hazards like decorations and smoke machines.  Because hazing often occurs at parties, the occurrences should alert university personnel that hazing might exist beyond these parties in more drastic forms when no inspectors are present.  Moreover, many Greek Affairs personnel are former fraternity and sorority members who went through the pledging process, and they must either know or have a reason to know that hazing may be occurring.

Universities may also be liable through the “voluntary attempt to rescue” tort theory.  Under this theory, “one who acts gratuitously . . . is liable for the negligent performance of an act, even though there was no duty to act originally.”  In Nisbet v. Bucher, for instance, fraternity members turned an intoxicated and unconscious pledge, Michael Nisbet, face down so he would not choke in case he vomited, then left him unattended.  The Maryland Court of Appeals ruled that the proximate cause of the plaintiff’s death “was the abandonment of him by defendants while he was in a state of acute alcohol intoxication brought on by their acts.”  The court reasoned that by leaving the plaintiff unattended, the defendants delayed the plaintiff’s medical treatment, and their “failure to call 911 or to take Michael to the hospital when they realized he was in a perilous condition effectively terminated his chance of survival.”

This theory can potentially extend to universities who create “hazing hotlines,” where students can anonymously report hazing incidents, because a court can reasonably view these hotlines as a university’s attempt to render aid.  Of course, this gives universities a perverse incentive against helping their students.  With an increase in university liability and a decline in the value of maintaining ignorance of fraternity affairs, however, universities might finally look for policy enforcement mechanisms that do not endorse fraternity autonomy at the expense of student safety.

Image by Scientific American

Since the unveiling of Dolly the cloned sheep in 1997, serious and contentious questions about the ethical and legal implications of genetic technology, and specifically its use on humans, have come to dominate many religious and cultural debates.  The central question seems to turn on the relative value of the “natural” form, and consequences flowing from its alteration.  More concretely, it asks whether it is wise to allow genetic technology to “pollute” our “pure” genetic code.

While the technology that would allow such alteration is still in a relatively infantile state today, its maturity is closer than we might think.  In part due to this perceived immediacy, some Americans worry about the implications of such a science fiction-esque state of affairs, and so a number of Congresspersons have sought unsuccessfully to ban prospectively the technology and all associated research.  As we come closer to the realization of the technology’s full capacity, such attitudes will become more widespread, and similar efforts will likely have greater traction.  In the not-so-distant future, the question of what to do about genetic technology will become a necessary one, and will require an answer.

An outright ban of this technology goes too far.  The potential benefits of the capacity to alter the human genome far outweigh its potential costs, and the preclusion of any development by an outright ban will eliminate all of those benefits.  Of course, the calculus here is not a simple one and is by necessity speculative.

Central to the policy arguments of those who advocate a ban (or at the very leastsignificant regulation) of human–focused genetic technology is a worry that its use would necessarily exacerbate the already significant problem of social stratification by making manifest the markers of that stratification.  In other words, the rich would not only wield significant and economic resources, but they would be biologically superior.  But this is already true.  Through the miracle of cosmetic surgery, one can purchase physical beauty, limited only to the contents of one’s bank account.  Would the addition of another option really change that much?

Moreover, is it morally acceptable to limit a person’s choice to improve oneself in any way one sees fit?  This question brings us to examination of the myriad potential benefits that the technology offers.  Those benefits are not limited to superficial ideals of beauty and intelligence but would have a real impact on human suffering and human potential.  It promises to cure all genetic disorders, to augment our immune system to eliminate communicable disease, and even to allow habitation of Antarctica and Mars.  Can we really throw away all of that in the face of possible social disruption?  Is maintenance of the status quo so vital that we must foreclose all of the benefits of this technology to achieve it?

The past couple months, new content has been sporadic (as you can see from the frequency of posts lately).  From now until the Fall, we will have about one post a week during our “off-season,” so to speak.  Over the next few months, we have some great posts in the pipeline!

We look forward to a fantastic year of new content and features on the Blog and we welcome your ideas!

All the best,
Suzy Marinkovich

A mug shot of Casey Anthony

In the summer of 2011, Casey Anthony, a young, attractive mother was accused of taking part in the disappearance and subsequent death of her darling baby girl, Caylee Marie. Thousands followed the trial; when the verdict came out, minutes later there were 352,283 reactions on Twitter. One of the defense team’s members stated, “social media was the difference between winning and losing.”

Although the prosecution ultimately put forth a weak case, the nation’s resounding digital fury at the verdict raises a number of legal concerns. One is the delicate balancing act affected by the rise of social media: how to properly view a defendant’s Sixth Amendment right to a fair trial in light of the public’s equal First Amendment right to a public trial. The case against Casey is an ideal window from which to examine the dilemma: Casey’s trial was met with unprecedented social media attention in a state with an unprecedented statutory right to public access for all court documents, including discovery records.

In Florida, the Public Records laws allowed for the release of more than 25,000 pages of public documents, including depositions of witnesses, forensic documents and scans, bank statements, emails with friends, family, and acquaintances, and photographs of Casey drinking alcohol and photos of Casey posing with her little girl. This provided an arsenal for the media and spawned news stories as far out as New Zealand and the United Kingdom.

For Casey Anthony, Twitter became a treasure trove of information.  During the trial, updates were tracked and followed by thousands of users anxious to voice their opinions on the goings of the courtroom.  When various witnesses would take the stand, the public would link their reactions directly to Twitter feeds.  Even the Court itself took to Twitter: NinthCircuitFL continued to provide real-time updates on Casey Anthony’s post-trial hearings and related affairs months after the trial.

The defense team saw an opportunity: they hired Amy Singer, a trial consultant who based her work on the media’s accessibility.  Singer gauged the public’s reaction to various stages of the trial by monitoring 40,000 highly charged opinions on social media sites and used this information to help the defense team adjust their strategy.  What the public did not like, the jurors, as members of that public, would not like either.

To be effective, a state’s criminal process must “satisfy the appearance of justice.”  Often, allowing public access to the process through the use of technology and open records laws may seem to achieve this purpose.  However, even the Supreme Court has expressed doubt with the purely positive effect of technology.  Efforts must be made to avoid a “mistrial in 140 characters or less.”  In Florida, the public has greater access to court documents than anywhere else in America; thus, Florida should be the first to consider the implications of Twitter’s facilitation of access to these documents.

According to author Paul Lambert, with increasing access and publication of these documents, “the advent of social networking websites such as Twitter and Facebook pose new threats with jurors breaching their obligations and the impartiality and fairness of the justice system.”  The time has come to address Twitter’s implications for a defendant on trial.