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Friday, April 4, 2008

Johnson denies disqualifications in Weaver retrial

Ramsey County District Court Chief Judge Gregg Johnson has denied a defendant’s motion to disqualify the Ramsey County Attorney’s office and the entire county bench from the murder trial of Gordon Weaver.

Weaver was convicted was convicted of second-degree murder in the 1999 death of his wife, Jean. But last July, the Minnesota Court of Appeals granted him a new trial, saying the trial court judge shouldn't have allowed testimony about blood-test results after they were destroyed. The blood test would show if Jean Weaver died in an accidental fall or as a result of a fire that Weaver set.

Prosecutors have said that information about the person who tested Jean Weaver's blood and the machine used to measure her carbon monoxide levels was lost and later found. Defense attorney Joe Friedberg has said that prosecutors knew about that evidence but sat on it until Weaver's conviction was overturned. He also said that Ramsey County District Court Judge Joanne Smith may have known of the prosecutor’s misconduct. Smith recused herself from the case.

Weaver argued that since Friedberg filed an ethical complaint against Smith, the entire bench should be disqualified. “If such a complaint were grounds for removal of a judge or an entire bench, parties could exercise continuing veto power over the assignment of trial court judges,” Johnson wrote. He also said there was no reason to disqualify the county attorney’s office.

It happened in Wisconsin; will it happen here?

The hard-fought battle for a seat on Wisconsin’s Supreme Court ended this week with a win by a little known county judge.

On Tuesday, Michael Gableman defeated incumbent justice Louis Butler, the state’s first black high court jurist, in an election that is being touted by many as a tragedy and a sign of how far special interest groups will go to gain control of the court.

It was a close race, with Gableman squeaking by with 51 percent of the vote, but it was still a victory -- the second in two years for conservatives who have criticized the Wisconsin court as antibusiness and activist. Gableman’s win will likely shift the leaning of the court from liberal to conservative.

The race has been widely publicized because of its negativity and cost.

“The combination of the money, the tenor, the disrespect for facts and the racially charged nature of the campaign makes it one of the true low points around the country for judicial elections,” said James Sample, counsel at the Brennan Center for Justice at New York University.

“It's certainly going to join the ranks of the worst examples nationally of negative court races,” agreed Jesse Rutledge, deputy director of Justice at Stake, a national group dedicated to keeping courts fair and impartial.

It is exactly this kind of judicial race that many members of Minnesota’s legal community are taking steps to avoid. The changes to our judicial canons have a lot of people worried that special interests and big money will begin seeping into our elections like they did in Wisconsin and many other states around the country. To that end, a bill was introduced in the Legislature this session that would alter our current method of selecting judges, although it appears unlikely to go very far in this session.

I don’t know the solution -- the Legislature and the voters will have to figure it out -- but I certainly don’t want to see what just took place in our border state happen here.

Thursday, April 3, 2008

No gaps in discussion of Watergate at St. Thomas

Lawyers and history buffs have been enjoying an up close and personal look at the Watergate era this week thanks to the efforts of the University of St. Thomas to bring to Minnesota John Dean, Bud Krogh, Jill Wine-Banks and Judge Charles Breyer, the former being defendants and the latter being prosecutors in the illegal activities and cover-up thereof during the administration of President Richard Nixon. The panel discussion was “Watergate Revisited: The Ethics of the Lawyers.” Dean observed that of all the participants in the wide-ranging scandal, about 22 had law degrees. “So why did so many lawyers get involved? Blind loyalty to the president, incompetence and an absolute arrogance in believing that the law was inapplicable to them,” he said.

The good news from Watergate is proof that the constitutional process works, Breyer said. The Pentagon Papers incident showed that the First Amendment works, the hearings showed that Congressional oversight works, and the investigation and special prosecution showed that an independent judiciary is important, he said. Furthermore, when Nixon fired the special prosecutor in what came to be known as the Saturday Night Massacre, outraged citizens made their voices heard. In other words, they petitioned for redress of grievances and that made an enormous difference to the successful prosecution of wrongdoers, said Breyer, who is now a U.S. District Court judge in San Francisco

Wednesday, April 2, 2008

Behind the scenes in a hotly contested judicial election

The cover story in this week's City Pages is a provocative look at what one former judge feels are unduly political machinations behind the scenes in Minnesota's courts system.

In Paul Demko's article, retiring Ninth District judge Terrance Holter talks about the complications and gamesmanship involved in the 2006 judicial campaign that resulted in the election of a former clerk of Holter's, John Melbye -- and how outgoing Supreme Court Chief Justice Russell Anderson declined to appoint Holter as a retired judge after he lost the race to Melbye.

The article has a tinge of sour grapes to it, but the article is an interesting look at how loyalties and even family ties can become knotted in politics when a place on the bench is at stake.

Tuesday, April 1, 2008

Jesse Ventura appointed to the Minnesota high court!

OK, OK, not really, but we had to give you at least one April Fool's Day headline on the Minnesota Lawyer blog. Ventura, of course, is not now, nor has he ever been, a lawyer, but he used to quip that he had "never lost a case." (Apparently a reference to the fact that he had gone to court representing himself once and "won." I have no idea whether his "record" remains intact.)

Ventura is a wrestler, turned actor (is there really a difference?), turned Minnesota's governor (again, is there really a difference?) and, most recently, I guess you'd have to call him an author. His latest book -- "Don't start the Revolution without Me!" -- was, appropriately enough, released today, on April Fool's Day.

Here is an excerpt from the books description on Amazon.com --"Ventura pulls no punches in discussing our corrupt two-party system, the disastrous war in Iraq, and what he suspects really happened on September 11. ... He reveals the illegal role of the CIA in states like Minnesota."

I have not yet read this scholarly tome, and surely do not intend to. I tend to shy away from books with exclamation points in the title. In fact, I haven't read any of Ventura's stuff since I leafed through "Do I Stand Alone? Going to the Mat against Political Pawns and Media Jackals." I didn't think that diatribe was very good at all, but I'm a media jackal, so you can take that with a grain of salt if you like. I note with some satisfaction Amazon is currently advertising the book with a "new or used" price starting at $ .01. Another book, "The Wit and Wisdom of Jesse 'the Body...the Mind' Ventura" is listed as starting at $ .90, which I think is 45x too much to pay for Ventura's two cents worth. But then again, it's probably a popup book, so maybe your kids will enjoy it.

I almost hate to say it, but from the legal community's perspective, Ventura was not a bad governor at all. He was good with court funding and made excellent, nonpartisan judicial picks. Much of the credit for the judicial appointments has to go to the efforts of the Commission on Judicial Selection and its then chair, Minneapolis attorney George Soule, but Ventura had the good sense to listen to their advice. As a result, Ventura's lasting legacy on the bench is one of the best of any Minnesota governor. That doesn't mean I'd want Ventura in the U.S. Senate though, something he coyly hints that he would at least consider ("Never say never.") It might make C-SPAN more interesting, but so would releasing a bag full of rabid squirrels with sparklers on their tails into the Senate chamber during a debate.

High court's high ranking due to both bench and bar

As has been previously reported, a recent University of California-Davis law review study shows that the Minnesota Supreme Court ranks fifth in the nation among state high courts that are followed by other courts. The study analyzed each state's Supreme Court opinions back to 1940, some 24,000 rulings. The full text is available here.

Responding to the reports at a panel discussion with students at the University of St. Thomas School of Law yesterday, Chief Justice Russell Anderson said he was proud, but not surprised, at the study’s findings. The court’s opinions are often followed because the court is not result-oriented, he said. “We [want] reasoned, rational decisions explaining how we got [to our conclusions],” he said.

Justice Helen Meyer also attributed the study’s results to the high level of practice before the court. “It’s also because we have a great bar,” she said.

Monday, March 31, 2008

Hamline's new law dean a good fit for the school's innovative culture

Hamline University School of Law today named its new dean -- respected Twin Cities lawyer Donald Lewis. Lewis is a partner at what, pound for pound, is one of the most business savvy firms in town -- Halleland Lewis Nilan and Johnson. The Halleland firm, known for its focus on providing solutions to business clients, has been an innovator in its marketing campaigns (including posting billboards in airports and elsewhere), ability to differentiate itself and collaborative management style. The firm has shown a willingness to eschew the conventional wisdom of the buttoned-down legal world, thereby giving it an advantage over some of its more traditional (and less creative) competitors.

It will be interesting to watch Lewis import some of these types of techniques to Hamline -- a school that has already itself shown no shyness about being innovative. Hamline has, for example, smartly carved out niches in ADR and internatonal law that have garnered it both national and international recognition. In fact, the school has already run counter to the prevailing trend by tapping a lawyer directly from practice to be its dean rather than opting for a full-time academic. I cannot recall the last time that happened at a Twin Cities law school (and feel free to blog in an answer if you have one). It's certainly been quite a while.

Is the school's decision to hire a lawyer direct from practice to be its dean an indication that it plans to deepen its commitment to nuts-and-bolts practice training, perhaps moving a little further away from the purely theoretical courses that have historically been the underpinning of a legal education? Or is it just a way of saying, "Hey, we're willing to think outside the box?" Stay tuned.

Happy Judge Allen Oleisky Day!

Beloved is rarely an adjective you see used before a judge's name any more, but if it is appropriate anywhere for a member of the local bench, it is appropriate before the name of retiring Hennepin County District Court Judge Allen Oleisky. Oleisky is the state's longest serving judge, having been appointed a municipal court judge in Hennepin County 36 years ago, when he was just 34. (The municipal court was later merged into the District Court.)

I recall that when the Hennepin County Bar Association used to conduct a plebiscite in which lawyers voted whether or not judges should be retained, Oleisky was a top vote-getter. His name always comes up when lawyers list off judges they respect.

It is unfortunate that the state requires that judges retire on their 7oth birthday. It seems a waste that, through an arbitrary cut-off line, the state deprives its citizens of wise and experienced, albeit somewhat gray, heads. Personally, I would much rather have the 70-year-old Oleisky presiding over my case than the 34-year-old one, but the state seems to have a preference for the latter. I think forced retirement at 70 is an anachronism that itself ought to be retired.

In any event, Gov. Tim Pawlenty has declared today Allen Oleisky Day. It is fitting that the governor has done so. We at the Minnesota Lawyer blog would like to take this opportunity to thank the good judge for his many excellent years of service to the people of this state. We wish him well in his new career as an ADR provider.
Judge Oleisky at his retirement party last week
with Court Administrator Mark Thompson