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Kimberly Bryan’s Seminar Earns International Recognition

A legal seminar planned, authored, and moderated by Kimberly Bryan (along with co-planner Whit Clanton and a stellar team of speakers) won the 2014 Award of Professional Excellence presented by the Association for Continuing Legal Education (ACLEA). ACLEA is an international organization of continuing legal education professionals from all 50 US States, Canada, Australia, and New Zealand.

Kimberly planned and presented the program, titled “The War of the Roses in the Digital Age,” in conjunction with the NC Bar Association. Kimberly’s seminar took Top Honors in the highly competitive “Programs” category. The seminar has been attended by nearly 1000 lawyers through the State and focuses on legal and ethical issues presented by electronic and digital communications and evidence.

This is the second ACLEA award for Kimberly. Her seminar (co-planned with Nancy Grace accompanied by a team of excellent speakers and presented by the NC Bar Association), “Critical Cases: the Top 50 Family Law Cases,” took 2nd place in 2013, receiving the award for “Outstanding Achievement,” also in the competitive Programs category. Kimberly is the Managing Editor for the book of the same name that was spun off following the success of the seminar.

 

Cheshire Parker Celebrates Certification of Two Paralegals

Two of our wonderful paralegals, Sara Fagel and Lisa Rampello, recently graduated from Meredith College’s Paralegal Certification Program, making them North Carolina State Bar Qualified Paralegals.

Lisa Rampello (left) and Sara Fagel (right)

As with all of our paralegals, we are lucky to have them and are quite proud, and we celebrated the graduation at Raleigh Times.

Cheshire Parker celebrates paralegal certification of Sara Fagel and Lisa Rampello.

 

FBI will now record (some) interviews

Since its founding in 1908, DOJ policy explicitly prohibited the recording of suspect and witness interviews.  That will change on July 11th, 2014.

The new policy, announced in a memo from Deputy Attorney General James M. Cole, “establishes a presumption” that the FBI, DEA, AFT, and US Marshals “will electronically record statements made by individuals in their custody.”  The policy “also encourages agents and prosecutors to consider electronic recording in investigative or other circumstances where the presumption does not apply.”  This would include in the questioning of witnesses.

This policy is a positive step in the pursuit of truth and justice.  It will help protect against mistakes and lies in the recounting of witness statements, and will expose and possibly curb “deceit and psychological trickery legally employed by agents to obtain information and confessions.”  (AZ Republic).

The policy contains exceptions for public-safety situations and national security intelligence-gathering interviews, among others.

While it remains to be seen how quickly agents respond to this policy and how often the exceptions are utilized, as a former U.S. Attorney for Arizona commented, “It’s a step in the right direction[.]”  (AZ Republic).

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Here is a link to the memo – 225510239-DOJ-Recording-Policy

 

Study Finds 1 in 25 Sentenced to Death Likely Innocent

A study authored by Samuel Gross, a professor from University of Michigan Law School, and others suggests that several of the 1,320 people executed in the United States since 1977 were likely innocent. The following is from a Washington Post article on the subject:

“Gross and three other researchers, including a biostatistics expert, looked at the issue using a technique often used in medical studies called survival analysis. Yale University biostatistics expert Theodore Holford, who wasn’t part of the study, said the work done by Gross ‘seems to be a reasonable way to look at these data.’

“Because of various assumptions, it might be best to use the margin of error in the study and say the innocence rate is probably between 2.8 percent and 5.2 percent, said University of South Carolina statistics professor John Grego, who wasn’t part of the study.

“The study is the first to use solid and appropriate statistical methods to address questions of exoneration or false convictions, an important subject, said Columbia Law School professor Jeffrey Fagan, who also is a professor of epidemiology at the Mailman School of Public Health. The research combines data from three independent sources, a rigorous approach used by few studies on capital punishment, he said.”

While the authors conclude that this percentage is relatively low, their findings provide additional support for the concept that innocent people have been and will continue to be put to death in the United States as long as the death penalty is an option.

 

CHESHIRE PARKER RUNNERS GO FAST AND LONG

Raleigh was home to the Rock’n’Roll Marathon Series on Sunday, April 13, 2014.  Cheshire Parker had three members run in the race.  Ben Spiker completed the full marathon and achieved his goal (and personal record) of under four hours (!!).  Jenny Bradley competed in her first ever half-marathon and finished strong.  Kimberly Bryan also ran the half-marathon and earned herself a personal record.  Ben, Jenny, & Kimberly are not the only Cheshire Parker runners — Keat Wiles has completed so many full marathons that he can’t remember how many he’s done.  Keat will be back on the marathon track in June.

 

Joe Cheshire Named Top North Carolina Lawyer by Super Lawyers

Joe Cheshire was named the top lawyer in North Carolina by SuperLawyers.com in its 2014 rankings.

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Super Lawyers is a ranking service that uses a multiphase selection process, which includes peer nominations and evaluations, as well as independent research, to select outstanding lawyers throughout the state.  Only five percent of all practicing attorneys are selected for inclusion in Super Laywers.  To read more about the SuperLawyer.com selection process, please click here.

 

Nine Cheshire Parker Lawyers Listed in N.C. Super Lawyers

SuperLawyers.com has released its 2013 awards.  Three of our lawyers were listed among the “Best of the Best” lawyers in North Carolina, and nine of our lawyers were honored with distinctions as SuperLawyers and Rising Stars.

In addition to the above three, the following lawyers were rated as Super Lawyers by SuperLawyers.com:

Three of our Raleigh lawyers were recognized as “Rising Stars” by the rating site.  They are:

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Super Lawyers is a ranking service that uses a multiphase selection process, which includes peer nominations and evaluations, as well as independent research, to select outstanding lawyers throughout the state.  Only five percent of all practicing attorneys are selected for inclusion in Super Laywers.  To read more about the SuperLawyer.com selection process, please click here.

 

Marijuana Legalization Trend Leads Federal Judge to Give Reduced Sentences

On November 1, 2013, a U.S. District Court judge in Maryland gave sentences that were up to 25% lower than suggested by the U.S. Sentencing Guidelines to 20+ defendants being sentenced in a large scale marijuana trafficking operation case, citing the national trend of states legalizing and decriminalizing marijuana and the Justice Department’s recent decision not to prosecute marijuana distribution operations that are legal under state law.  (U.S. v. Dayi; August 2013 DOJ Memo).

Specifically, the judge found that changes in public opinion, state law and DOJ policy alter the calculus for two sentencing factors: (1) the seriousness of the offense and (2) the need to avoid unwarranted sentencing disparities amount those found guilty of similar conduct.

As to the first, the court stated, “Ultimately, the Court finds that, in 2013, strict Guidelines sentences would overstate the seriousness of the underlying offenses and therefore fail ‘to reflect the seriousness of the offense, to promote respect for the law, and to provide just punishment for the offense.'”  For, “although the Guidelines for marijuana-related offenses have remained the same since 1987, state law and federal enforcement policy have changed significantly.”

Regarding the second factor, the court noted, “Although the illegal enterprise in these cases is not identical to these commercial distributors [in Colorado and Washington state] — i.e., it did not comply with the laws or regulations of any state and implicated several federal enforcement priorities — it nonetheless bears some similarity to those marijuana distribution operations . . . that will not be subject to federal prosecution. The Court therefore finds it should use its sentencing discretion to dampen the disparate effects of prosecutorial priorities.”

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This opinion could be an important first step toward a widespread understanding by sentencing courts that changes in public opinion, law and policy surrounding the decriminalization and/or legalization of marijuana affect the traditional understanding of appropriate sentences in marijuana cases.

See Sentencing Law and Policy Blog for more.

 

Can Lawyers Use Judge’s Compliments as Website Testimonials? NJ Federal Judge Says No.

A New Jersey lawyer’s website featured excerpts from unpublished opinions that complimented the lawyer’s work.  A federal judge asked the lawyer to remove the testimonial and the lawyer refused.  The judge then referred the matter to the New Jersey Committee on Attorney Advertising.  Thereafter, the Committee issued a guideline prohibiting attorneys from posting excerpts of opinions on their websites, but allowing them to post entire opinions, on the basis that the rule was necessary to prevent misleading advertising.  (NJ, Attorney Advertising Guideline 3).  The lawyer then sued in the U.S. District Court for the District of New Jersey, arguing that the guideline was unconstitutional.

On June 26, 2013, the District Court upheld the guideline, holding that it “is not a ban on speech but is instead a disclosure requirement.”  The court found that the requirement was reasonable under the test outlined by the Supreme Court in Zauderer v. Office of Disciplinary Counsel (1985), which requires that “disclosure requirements [be] reasonably related to the State’s interest in preventing deception of consumers” and that they not be “unduly burdensome.”

An ABA Journal article (“Unshared Compliments, by David Hudson Jr.) quotes Richard T. Kaplar, vice president of Media Institute in Arlington, VA, who says that the opinion provides no explanation as to why the requirement to post the entire opinion, and disallowing excerpts, is not unduly burdensome.  Kaplar futher states that “Guideline 3 appears to be a de facto restriction on speech masquerading as a disclosure requirement.”

The lawyer plans to appeal the ruling to the Third Circuit.

UPDATE (11/18/13): WSJ discusses the lawyer’s appeal – http://blogs.wsj.com/law/2013/11/18/when-paying-a-lawyer-a-compliment-doesnt-pay/.

 

Candidate’s Testimonial Ad for Construction Company Possibly Violated Federal Election Law

Congressional candidate Tom Emmer provided a video testimonial for a construction company in which he says, “Hi, I’m Tom Emmer, and I’m running for Congress . . . .  If you’re looking for someone to do remodeling, siding or general construction . . . you need to call the folks at Integrity Exteriors and Remodelers.  They’re the best.”  (Star Tribune).

A lawyer at the Campaign Legal Center commented that “If this thing ran on TV, this is an illegal, corporate in-kind contribution to a candidate for federal office, in the form of a coordinated ad.”

Coordination is problematic in this context because, while a company can engage in “independent expenditures” in support of a candidate, companies cannot donate directly to candidates or campaigns—and coordinated expenditures are deemed direct contributions.  Because Mr. Emmer was clearly involved in the creation of the ad, and because he discussed that he was running for office, the testimonial commercial may have provided direct value to the campaign in violation of federal election law.

The campaign maintains that the commercial was an advertisement for the construction company, not Mr. Emmer’s campaign.  The problem is that Mr. Emmer mentioned his candidacy, and because informing voters that the candidate is running for office is a key campaign goal, the commercial arguably helped the campaign.

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While these issues are relatively straight-forward in hindsight, Mr. Emmer clearly did not think about them when he agreed to do the testimonial.  This story shows how easy it is to accidentally run afoul of election laws, and thus how important it is for every campaign to have an election law attorney.

 

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