Casey Anthony's Lawyers Are Breaking Bad

San Diego Attorney
Todd Macaluso

I recall putting on my shirt and tie for court while watching GMA two years ago and seeing one of my law school acquaintances, Todd Macaluso, being interviewed as the newest member of Casey Anthony's so-called "dream team" of defense lawyers.  The interview in Florida was surprising to me, as I thought Todd was a product liability lawyer in California.  Hey, headlines are headlines, right.

Todd comes from a wealthy family out east and he married well; very well.  Not interested in Harvard, NYU, or any of the tony east coast law schools, Todd collected his sheepskin right here in the "D" from the University of Detroit School of Law; class of 1987.

Before his graduation ceremony was even concluded, Macaluso was probably on a private jet to San Diego, where he hung his shingle and hasn't looked back.  And apparently he has not stopped playing around with private aircraft either, from the way the headlines read this week.

Although forced to quit the Casey Anthony case due to a serious attorney discipline conviction and imminent disbarment in California, Todd is right back in the cockpit, just in time to seize the spotlight, allegedly ferrying Ms. Anthony about the country on his private Pilatus PC-12 turbo-prop aircraft.

The national media, led by Nancy Grace, is in an absolute frenzy over Anthony's location.  Knowing Todd, he is loving every minute that he is able to steal the show by flying the infamous "Tot Mom" hither and yon.  Hopefully, his 15-minutes will expire by month's end.

Macaluso is a poster child for the adage: "image is everything".  He is acknowledged, among dozens of others, in United States Supreme Court Justice Antonin Scalia's book, Making Your Case.  A mutual friend who's been to Macaluso's home says there is a photo of Todd on his yacht with Justice Scalia, apparently a friend of the extended Macaluso family.

In 2007, Macaluso received the President's Award from the UDM School of Law.  In presenting this award, UDM acknowledged Todd's lobby efforts in Congress to regulate pharmaceutical sales over the Internet. Nothing was mentioned, however, about the opportunistic nature of his burgeoning criminal defense practice.

With the benefit of hindsight, I just have to wonder if my alma mater would have bestowed its President's Award on a graduate who soon would be disbarred for misspending client trust funds; or whether Justice Scalia would acknowledge an attorney that has not only joined forces with a most infamous client, but has positively delighted in concealing her location, while she prepares with her lawyers to fleece all of us.

Only in America folks; only in America.

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Posted in: Casey Anthony,criminal defense attorney,defense lawyer,Justice Antonin Scalia,Nancy Grace,Todd Macaluso,Tot Mom,University of Detroit School of Law

SCOTUS Orders the Release of More than 45k California Felons

Photo Credit: LA Times

In a hotly contested 5-4 plurality decision that will surely go down as one of the more controversial cases of this decade, SCOTUS affirmed the 9th Circuit Court of Appeals in ordering the release of more than 45,000 California felons.  The decision will precipitate the largest release of prisoners in American history.

Brown v Plata began it's marathon crawl through the federal court system in 1990, when a case was filed challenging the poor status of mental health treatment in the California prisons.  Then in 2001, a companion case challenging the medical care of prisoners was initiated.

These consolidated cases have everything, from a procedural standpoint.  For example, a "special master" first was appointed by the federal court to make findings about the prison conditions.  The State of California stipulated to violations of the Eighth Amendment's prohibition of cruel and unusual punishment and agreed to remedy the problem by reducing overcrowding in the prisons.  Next, when remedial measures fell short, or did not occur, the court appointed a receiver to oversee the California Department of Corrections.

The cases were even assigned to a special three-judge panel to oversee the CDC's progress; or lack thereof.

Justice Anthony Kennedy wrote the majority's opinion, finding that prison conditions had gone too far for too long.  The opinion provides a few slices of life in the CDC like sharing a toilet with 55 of your good buddies, or doing your entire four-year bit in a sweaty gymnasium. 

The always-conservative Justice Antonin Scalia opined that the majority's decision was "absurd", noting that SCOTUS routinely overruled 9th Circuit decisions that called for the release of individual prisoners.  Justice Scalia sees grave problems that will come home to roost from the Plata ruling.

In a separate dissent, Chief Justice John Roberts wrote that the majority's decision conflicts with a federal law which prohibits judges from releasing prisoners.

The one thing SCOTUS gave the State of California was time.  California has busied itself with transferring thousands of state prisoners to county jails across the state.  This will not amelioriate the entire problem, however, and some of California's "happy-go-lucky" [Scalia's characterization] felons will wind up on the streets.

This High Court decision brings into focus the inherent tension between our individual freedoms and enforcement of the laws.  There is a constant tension between the two concepts.  Sometimes, that tension cycles to the breaking point like in California, where too many law breakers are stuffed into concrete boxes that are ready to explode.

In Michigan, although we are far behind California in maxing-out our prison capacity, we have an awful lot of population encased in concrete and barbed wire.  In fact, we have the opposite problem.  Due to budget cuts, we have at least one brand new facility, in Lake County, sitting empty due to lack of funding.

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Posted in: California,California Department of Corrections,Chief Justice John Roberts,constitution,cruel and unusual punishment,eighth amendment,Justice Antonin Scalia,prison,prisoners,SCOTUS

The Right to be a Millionaire

The NFL team owners, a tony group, just announced an official lock-out of their players.  For their part, the players have dissolved their union and several super-stars have filed a high profile class action law suit against the owners.

Football is America's most popular sport and has grown into a billion dollar industry over the past decade.  With the lock-out and the law suit, however, looks like the 2011 season is in jeopardy.

The super-star quarterbacks' lawsuit, formally known as Brady vs NFL, was filed in the U.S. District Court in Minneapolis, MN and asserts an antitrust claim against the storied league while seeking an injunction to terminate the lockout.

The quarterbacks are represented in Minneapolis by the Berens Miller law firm.  The league is in the good hands of Attorney Aaron Van Ort, a former law clerk to both SCOTUS Justice Antonin Scalia and well-known 7th Circuit Judge Richard Posner.

Another Justice Scalia connection:  The players' case, initially assigned to U.S. District Judge Richard Kyle who promptly recused himself, was re-assigned to Judge Patrick Schiltz, also a former Scalia law clerk.

For their part, the owners, on average only slightly wealthier than the league's star players, are claiming poverty in the complexity of operating a modern football franchise. 

While millions of NFL fans wait to see whether there will be a season, and drafted rookies wait to see whether they will become newly minted millionaires, the attorneys in the case will be walking away with millions in legal fees.

Now go count your money.

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Posted in: attorneys,collective bargaining,Judge Richard Posner,Justice Antonin Scalia,NFL,players union,U.S. District Court

SCOTUS Erodes Witness Confrontation Requirement

This case was straight out of Detroit.  Anthony Covington was lying next to his car at a gas station, shot in the stomach, bleeding out, but still alive and speaking with the Detroit Police.

Just before he died, he identified Rick Bryant as his shooter.  Bryant's subsequent conviction, based largely on the dying man's identification, went all the way to the SCOTUS and was decided last month.

Conviction affirmed; and in the process, one of the many exceptions to the hearsay rule is broadly expanded at the expense of accused persons everywhere.

The 6-2 decision in Michigan v Bryant erodes the confrontation clause of the Sixth Amendment requiring that all witnesses against an accused be brought to court.  Surprisingly, Justice Sotomayor wrote for the majority; Justice Giinsburg recused herself; and just as surprisingly, Justice Scalia wrote in dissent.

This case is significant to the extent that it allows police officers to testify at a trial about what an out-of-court (i.e. hearsay) witness said when that witness is no longer available for purposes of cross-examination and in-court confrontation.  Whether a dying man's declaration comes into evidence at a criminal trial depends on the "testimonial" nature of his utterance.

Prior SCOTUS decisions have addressed this problem.  Until now, two domestic violence cases established each end of the continuum.

In the well-known case of Davis v Washington, the declarant's statment -made during a 911 call- was admitted because the emergency was ongoing when the statement was made.  The presence of the emergency made the statement non-testimonial and thus, admissible in court even though the declarant was not present at the trial.

On the other hand, when a statement is made after the emergency is extinguished, as in Hammond v Indiana, then such a statement is clearly testimonial; that witness must be brought into court, or the statement is excluded from trial.  The witness in Hammond made her statement from the safety of her home during a subsequent police visit. 

The Bryant Court constructs a complicated two-perspective test to determine the "testimonial" nature of a dying man's declaration.  A reviewing court must now consider both the declarant's primary purpose in uttering the statement, along with the recipient's purpose in receiving the statement.  Say what??

Writing for the dissent, Justice Scalia, not usually a champion for the defense but an ardent supporter of the confrontation clause, thinks the question "is an absurdly easy one".  The murder victim from Detroit, in his last breath, was telling the Detroit Police who shot him so they could apprehend the shooter; not to stop any "emergency".  Therefore, the statement was testimonial in nature and should not be admissible in court according to Scalia's analysis.

Seems like each year SCOTUS issues at least one decision from Detroit and the surrounding area that has a local murder at issue.  Last year it was Warden Berguhis v Thompkins; this year it's Rick Bryant's case.

Kinda sad that we're known for the laws that get spawned from these murders.

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Posted in: confrontation clause,Detroit,Detroit Police Department,evidence,hearsay evidence,Justice Antonin Scalia,Justice Sonia Sotomayor,SCOTUS,Sixth Amendment,statement,witness