Friday, May 30, 2008

Supreme Court to Decide If It Will Hear Fantasy Baseball Case

Earlier this week, I wrote about a Supreme Court decision that protected workers from retribution after making claims of discrimination. On Monday, the Court will decide whether or not it will hear a completely different matter – Do fantasy baseball leagues have to pay Major League Baseball and its players for use of their statistics? While perhaps not as popular as their football counterparts, fantasy baseball leagues can still claim a strong following of sports fans who enjoy developing hypothetical teams as a hobby. I am sure these enthusiasts will be watching to see if their pocketbooks will be affected.

Right now, large media companies like Yahoo and ESPN already pay millions of dollars to MLB every year for the right to licensing and use of player statistics. Major League Baseball and the players’ association believe smaller outfits that run fantasy leagues should also have to pay for the privilege. To do otherwise, they say, amounts to the stealing of intellectual property and implying an endorsement by a player when none has been given.

The smaller companies, led by a St.Louis-based business called CBC Distribution and Marketing, Inc have already won their case in two lower courts. They successfully argued that the players’ information is public domain, as the statistics are easily found in newspapers and the internet. To ban access to this information would be a violation of the First Amendment.

The MLB has the backing of other professional sports leagues, so the consequences will reach past just baseball if the Supreme Court overturns the previous rulings.

Will it cost you a little more this fall as you ponder whether to take Tom Brady or Peyton Manning as your quarterback? Will this have been the last season that you were able to acquire Chipper Jones for your fantasy office league for free? Stay tuned to the Supreme Court and we will all soon find out!

UPDATE: The Supreme Court has decided not to hear the case.

Thursday, May 29, 2008

Death Row Inmate Gets New Trial

A question commonly discussed (and perhaps debated) among attorneys in criminal law bar is – Would you rather see one innocent person go to jail or see twelve guilty people go free? When the resulting punishment is the death penalty, that debate becomes even more serious. With DNA testing now available to law enforcement that was not yet in existence when some of our current death row inmates were convicted, the presumption of guilt that now rests with every conviction is no longer above reproach.

The state of Tennessee is dealing with this very situation. Paul House was convicted in 1985 of killing a young mother, and he has been sitting in a jail cell and waiting for his day of execution ever since. New evidence, including sophisticated DNA testing, was put forward in the late 1990s. The Tennessee Supreme Court decided in 2006 that a reasonable jury would not have convicted House with the facts now available.

On Wednesday, U.S. District Judge Harry S. Mattice, Jr. ruled that the state would have to begin a new trial against House or release him. Somewhat to House’s credit, the prosecuting attorney has stated that he will not request the death penalty this time.

House, who suffers from multiple sclerosis and uses a wheelchair, has always maintained his innocence. In a recent interview, House said, "It's taken me all these years to prove that I didn't do it … I didn't do the crime, but I've done the time."

Criminologists, psychologists and even economists have debated the merits of the death penalty. Strong and compelling arguments have been put forward for both sides of this controversial issue. However, no one is going to advocate for the termination of an innocent man’s life. If Paul House truly is innocent of the charges brought against him so many years ago, I hope that the court gives him the justice he has sought for so long.

Wednesday, May 28, 2008

Workers Who Make Discrimination Claims Win Victory in U.S. Supreme Court

Decisions made by the United States Supreme Court are often noteworthy and have an immediate impact on a great number of people in our country. The conclusion reached on Tuesday involving two separate lawsuits is certainly no different. The nine justices determined, by a 7-2 decision in one case and a 6-3 split in the other, that workers who face retaliation after filing discrimination claims are allowed to sue in federal court.

The Supreme Court reached back to the Reconstruction-era Civil Rights Act of 1866 as the precedent for its decision:

Section 1981 of the Civil Rights Act of 1866 was the first major anti-discrimination employment statute. This act prohibited employment discrimination based on race and color. This Act has been interpreted by the Supreme Court to protect African Americans, Asian Americans, white Americans and other groups.

While workers are clearly protected from discrimination in this Act, the point of question was whether or not employers could respond if they were angered by accusations of prejudice. As noted in an article from yesterday’s The Washington Post, Justice Stephen G. Breyer wrote in the majority opinion that, while acts of reprisal are not specifically mentioned in the 1866 law, the idea that the act “encompasses retaliation claims is indeed well-embedded.”

Liberal civil rights groups, such as the People for the American Way, that are not often thrilled with the decisions reached by Roberts’ court are pleased with the protections given to workers in both the private and public sector. All of these workers can now go public with claims of discrimination without fear of reprisal. On the other hand, groups such as the National Federation of Independent Business and the U.S. Chamber of Commerce are worried about the effect that this decision will have on small business owners who may now hesitate to terminate the employment of a worker even when rightful cause is apparent.

Workers certainly should be protected from all types of discrimination – without exception. At the same time, employers are sometimes also the victims of false accusations that can destroy a business’ reputation. All sides need to be treated fairly and professionally in order to create the best working environment for everyone involved.

Tuesday, May 27, 2008

Grannies and Thugs

In an apparent effort to gain notoriety of the Gangstas and Thugs variety, Palm Beach County resident, Michael Alfinez, allegedly dressed up his elderly grandmother and instructed her to flash money and weapons for a video shoot in December 2007. The allegations in the probable cause affidavit are atrocious and responses such as "1908" to the officer's question on the current year likely impair Alfinez's Florida criminal defense attorney's ability to argue the grandmother's consent to the actions displayed in the video.

Specifically, the elderly woman shouts curse words and makes statements such as, "This is for all the pigs" and "I'll shoot you," while brandishing a weapon. At one point she is heard to exclaim, "F-L-A all day." Throughout the video, a male voice behind the camera tells the elderly woman exactly what to say and at one point pulls a black mask over her head.



Based upon what they viewed in the video, prosecutors charged Alfinez with abusing an elderly person, discharging a firearm in public and improper exhibition of a dangerous weapon.

Immigration Program Strains Local Law Enforcement

Immigration is a hot button issue that has already been discussed at length in this presidential election year. Perhaps the topic is no more passionately debated than in the states that form our southern border. One of the current questions facing the police forces in the Houston area is – how far can officers go in assisting with the federal issue of immigration control without compromising responsibilities to local matters of crime and justice?

The Department of Homeland Security has a division known as the U.S. Immigration and Customs Enforcement (ICE). Part of ICE’s efforts includes a 287(g) program, which trains local authorities in immigration duties and gives the officers access to an extensive ICE fingerprint database. The hope is that giving the police officers such power will expedite the process of discovering and deporting those who have entered the country illegally.

The Houston Chronicle printed a story last week about the effect of ICE’s reliance on our communities. The main dilemma facing the suburbs surrounding Houston is the amount of time that officers would need to be away from their local duties in order to be trained by ICE – four or five weeks – as well as the fact that the county would have to continue to pay the salaries of its absent members. Because of these burdens on public safety and the county coffers, none of the six counties that surround Houston has yet applied for participation in the ICE program.

"Taking people out of pocket for an extended period of time would be a problem," said Cpl. Hugh Bishop, representative for the Liberty County Sheriff's Office.

Are the lines between federal and local responsibilities necessarily becoming blurred as the need to address immigration concerns reaches the forefront of policy discussions? If so, is there a way to train the needed law enforcement without further straining resources? These questions will need to be addressed as our country moves forward with the myriad of legal issues created by the immigrants entering our country every day.

With offices in Texas and Florida, we make it a priority at Bertolino LLP to keep ourselves at the forefront of immigration law. If you have an issue that requires legal assistance, please contact us and find out what we can do for you.

Monday, May 26, 2008

Memorial Day


Today is not a day to write about the current legal issues in our country, but to pause and to focus on our fellow countrymen who have made the ultimate sacrifice.

Our fallen heroes should be remembered and honored every day. Those who have given their lives for our country are amazing examples of bravery and patriotism. On this special holiday, let's all take the time to appreciate the freedoms that our military has protected for us. We are all fortunate to have men and women who volunteer to be of service to our country.

On behalf of the Firm, I want to thank all of our servicemen and women who are serving America around the world right now, as well as their families who are also sacrificing so much. Our gratitude can never be enough to repay all that you are giving to our country.

Friday, May 23, 2008

Texas Court Determined Children Wrongly Removed from Polygamist Ranch

"The existence of the FLDS belief system as described by the department's witnesses, by itself, does not put children of FLDS parents in physical danger” – Texas 3rd District Court of Appeals on May 22, 2008

Just two days ago on this blog, I wrote about allegations that children removed from the Fundamentalist Church of Jesus Christ of Latter Day Saints (FLDS) ranch in El Dorado, TX were being interrogated without legal counsel. Since that post, the Texas 3rd District Court of Appeals has determined that these same children should never have been removed from their homes in the first place!

Texas State law allows for the Texas Department of Family and Protective Services to take emergency possession of a child if authorities have reason to suspect that there is an "immediate danger to the physical health or safety" that absolutely requires removal of the children.

To summarize a complicated legal situation, the recent raid on the FLDS ranch was determined not to meet state criteria for the following reasons:

  1. Authorities treated the entire complex as one household, taking allegations of abuse in one instance and assuming the same crime was occurring in all families;
  1. Real measures were not taken to remedy the problem without implementing the drastic step of removing all children from their parents; and
  1. Evidence of a questionable environment did not reach the level of proving an “imminent” threat to the children’s safety.

As of this writing, the children still remain in state custody. The lower court has ten (10) days to reverse its actions, or the Court of Appeals will take the steps necessary to return the boys and girls to their homes. It is widely speculated that the state will appeal the decision reached on Thursday, so you can expect several more rounds of courtroom activity involving the residents of the Yearning for Zion ranch. So stay tuned for the next round to take place in the Texas Supreme Court.

While the raid on the FLDS sect produces family law dilemmas on a scale rarely seen, the attorneys at Bertolino LLP believe that all legal issues involving families are sensitive and deserve great care and attention. In short, it is all about the best interest of the children. Please let us know if we can be of assistance to you.

Thursday, May 22, 2008

Longhorns Facing a Legal Challenge on Race and Ethnicity




The envelope arrives in the mail. You open it with trembling fingers as your parents watch the expression on your face for clues as to what information the letter’s contents might hold. For students in Texas who are not in the top ten percent of their class and therefore not guaranteed admission to a state public university, this scenario is quite familiar. As it stands now, the decision found in that envelope may be based in part on your race and ethnicity. Two high school seniors and their attorneys are looking to put a stop to that practice.

The Supreme Court case of Regents of the University of California v. Bakke (1978) determined by a 5-4 decision that race could be one of many factors used to determine admissions but that racial quotas were discriminatory and, therefore, unconstitutional.

More recently, the United States Supreme Court ruled in 2003 (based on two lawsuits brought against the University of Michigan Law School) that there is merit to a diverse student body. The efforts to create such a population must be "narrowly tailored" after "good faith consideration" of race-neutral qualifications.

U.S. District Judge Sam Sparks is the man given the task of interpreting the Supreme Court’s language for Texas’ institutions of higher learning, and he is not thrilled with the circumstances. In his words, “I feel like I'm out walking in a snowstorm barefoot.”

The white students challenging the current admission policies are claiming a violation of their constitutional and civil rights. The two young women believe that they are both more qualified for admission than some of their peers who were accepted, in some small part, based on race.

This is a contentious issue that stirs up plenty of emotion among students, parents and administrators. With offices in Austin, Houston and San Antonio, you can be certain that the attorneys in our firm will be following this story closely.

A ruling in this case is expected shortly, but I do not expect the issue of race and college admissions to disappear anytime soon. But stay tuned!

Wednesday, May 21, 2008

Children of Polygamist Sect Questioned without Legal Counsel

There are countless legal issues surrounding the raid of the Yearning for Zion ranch near El Dorado six weeks ago, not to mention the complex ethical and moral questions that have been debated on every 24-hour news channel in America. Where does freedom of religion cross the line into our government’s responsibility to protect children? How do we respectfully care for children and young adults who have previously experienced a secluded way of life? Are there civil rights and liberties that have been violated?

One situation that was discussed last Friday in The Houston Chronicle is the apparent videotaped interrogations of some of the sect’s young women without the presence of an attorney.

Technically, the interviews were led by Child Protective Services and law enforcement just happened to be present as well. One of the legitimate roles of CPS is to investigate whether or not a crime has been committed, and then to alert law enforcement if needed. So, one certainly could argue that CPS was simply developing a case as allowed by Texas law. The problem, however, is that the line seems to have been blurred.

Terry McDonald, a criminal defense attorney and law professor at St. Mary's University School of Law, said it would not be illegal for Child Protective Services to interview the children without parents or attorneys present and to bring in law enforcement officers to assist.

With this in mind, McDonald adds the following:

"I think you could make the argument that CPS is not acting in their capacity to protect children from abuse, but is acting as an agent of the state, as law enforcement. Whether a judge would agree, I don't know."

The central question is – were the officers in the room during taping regulated to the role of “assistant”? If any part of the investigation was actually led by law enforcement, then Texas state law may have been violated, since an attorney or guardian must be present in such an instance.

But, guess what? There’s a catch. Child Protective Services has been responsible for the children’s shelter and food since the raid and essentially has adopted the role of legal guardian. Therefore, a case can be made that all required parties were present after all.

It is unfortunate that so many children are at the center of the controversy, even if most parties involved have the best interest of these girls at heart. And, as it becomes more apparent every day, the courtroom battles are just beginning.

Tuesday, May 20, 2008

Woman Crushed by Drunk Fan at Mets Game

"People shouldn't have to deal with drunks flying through the air at a ballgame."

The above quote is from the attorney of a woman who sued the New York Mets last year after being crushed by an intoxicated fan of substantial weight. With baseball season again in full swing (pardon the pun), I was reminded of the incident. I never saw a resolution to the case, but it does provide some interesting points to discuss.

Ellen Massey attended Opening Day and, late in the game, a drunk 300-pound man fell on her from several rows above. The incident broke one of Ms. Massey’s vertebrae and required the insertion of two rods in her back. Massey filed suit against both the New York Mets and Aramark (the company that runs concessions at the stadium).

There are laws in place in every state known as Dram Shop Laws, and the burden of proof and recourse available varies from state to state. According to the Alcohol Beverage Control Law Section 65(2) in New York, it is “unlawful for anyone to sell, deliver or give away alcoholic beverages to any ‘visibly intoxicated’ person.” But, the question becomes … what attributes define visible intoxication? The courts have been given a lot of leeway in making this decision, and most often the proof comes through the submission of circumstantial evidence (eyewitness affidavits). So, a drunk really is in the eye of the beholder.

Aramark has found itself in this situation before. In 2005, the concessions company was on the losing end of a $135 million lawsuit for serving an intoxicated fan at a Giants game. The man paralyzed a two-year-old girl in a car accident after the game. The decision was later thrown out on appeal, with a final resolution still pending.

In the words of countless public service announcements, let’s all make responsible decisions when alcohol is involved. The consequences can be catastrophic and last for a lifetime. If you have been the victim of someone’s irresponsible drinking, please contact Bertolino LLP and we can discuss your case.


Monday, May 19, 2008

MySpace Mom Indicted on Federal Charges


A mom in Missouri, Lori Drew, has been indicted in federal court after posing as a sixteen-year-old boy on My Space and taunting a girl in her neighborhood named Megan Meier. After reaching a point of extreme distress, Meier hung herself in her bedroom.

The question that is posed so often in courtrooms is now finding relevance in cyberspace. At what point are you responsible for the actions of another person? I doubt anyone would argue against the fact that this mother acted in a childish and reprehensible manner. Not only did she make malicious remarks about a girl the same age as her own daughter, but she conspired with teenagers to keep the fake identity a secret after Meier committed suicide. However, is Drew criminally responsible for the death of Megan Meier?

The state of Missouri never filed charges because there were no applicable laws on the books. As users of online dating sites across the country will tell you, there is no law against creating a fake online persona (you know that picture was from ten years ago and you have never actually taken a walk on the beach!) and then befriending or rejecting somebody. Unfortunately, this protection extends beyond those simply looking for romance.

As it stands now, Drew faces up to twenty years in prison on federal “charges of conspiracy and accessing protected computers to obtain information to inflict emotional distress” and the attorneys involved will be breaking new ground in proving their case. Lawmakers on both the state and federal level will be playing catch up for some time to combat those who find new ways to abuse one another through the anonymous and emboldening nature of the internet.

Check out this site to find out where your state currently stands concerning computer harassment.

UPDATE: View a copy of the Federal indictment here.