Public Trial. The Second Circuit granted a writ of habeas corpus to a criminal defendant whose relatives were order excluded during the testimony of an undercover officer unless they consented to sitting behind a screen. The Court, in Rodriguez v. Miller, held that such a procedure violated Rodriguez's Sixth Amendment right to a public trial. The decision can be found on the Second Circuit website. The case was decided on February 17, 2006.

Certified questions. In Colavito v. New York Organ Donor Network, Inc., the Second Circuit certified certain questions to the New York State Court of Appeals. The questions certified are as follows:

Do the applicable provisions of the New York Public Health Law vest the intended reipient of a directed organ donation with reights that can be vindicated in a provate party's lawsuit sounding in the common law tort of conversion or through a private right of action derived from the Public Health Law?

Does the Public Health Law immunize either negligent or grossly negligent conduct?

If a donee can bring a provate action to enforce the rights referred to in the first question, may the plaintfiff recover nominal or punitive damages without demonstrating pecuniary loss or actual injury?

The decision can be found at the Second Circuit website. The case was decided on February 23, 2006.

Another new blog. My law firm, Cox Padmore Skolnik & Shakarchy LLP is starting a new blog, which will deal with commercial law. The template of the blog already exists, but the content will be appearing shortly, probably some time nex week. Please check it out.

New blog. Well, it's not really new. I've known about it for some time, but for some unknown reason I never added it to my blogroll. Second Circuit Blog is run by members of the Federal Public Defenders office in the Second Circuit. It appears to deal exclusively with Second Circuit criminal cases, though, if I am wrong on that, I hope someone will correct me so that I can correct the error. It is now on my blogroll and I encourage my readers (such as they are) to check it out.

Spanish Isn't Hispanic. New York's definition of "Hispanic" for purposes of certifying minority-owned businesses for possible affirmative action excludes people of Spanish or Portugese descent who do not also come from Latin America. The Second Circuit, in Jana-Rock Construction v. New York State Department of Economic Development held that under rational basis review the distinction passes constitutional muster. The decision, which was rendered on February 21, 2006, can be found at the Second Circuit website.

New Policy. This is my policy, not the Court's. While I will continue to provide summaries of Second Circuit cases, I am going to also post on my general views on the law, appellate practice and other legal matters. I hope that you will continue to find this blog to be interesting and informative. If you have comments, complaints or suggestions, feel free to e-mail me.

Fully retained. In the Western District of New York, they have a practice of asking retained attorneys whether they are "fully retained," i.e., retained for the duration of the case, to avoid mid-trial motions for the appointment of counsel once the defendant's money has run out. This policy was challenged in United States v. Parker, which was decided on February 21, 2006. The Second Circuit held that the policy is proper. The decision can be found at the Second Circuit website.

Constitutional. The Second Circuit has held that the Religious Freedom Restoration Act of 1993 is Constitutional as applied to federal age discrimination law. The case involved a church policy requiring retirement of ministers at age 70. Paul Hankins, a Methodist minister who challenged the policy. In that RFRA had been found unconstitutional as it applied to state law, I'm looking forward to a close reading of the decision to see the Court's reasoning in upholding it as applied to federal law. Stay tuned for a further post. I've noticed that the "link" to Hankins v. Lyght is not working, but you can find a link to it at Findlaw. (If you are reading this post long after February 20, 2006, the link may not be there (it's the recent cases link), but search around and you should be able to find it. The case was decided on February 16, 2006.)

Family planning. It's well known that China has a family planning policy which allows couples to have only one child. Violation of that policy was punished by sterilization. The Chengs claimed that they could not be removed from the United States based on Article III of the United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. The Convention prohibits the expulsion of an alien if there are substantial grounds to believe that he or she would be in danger of being subjected to torture. The Chengs claims that the Chinese policy constituted torture. The Immigration Judge rejected their claims for relief from removal and the Board of Immigration Appeals affirmed. The Second Circuit, in Ni v. Board of Immigration Appeals, held that the immigration judge's failure to consider the Chengs' claims constituted reversible error, granted the Chengs' petition and remanded the case for further proceedings. The decision can be found at the Second Circuit website. The case was decided on February 13, 2006.

Changes to Blog Roll. I've noticed that some of the blogs on my blog roll are no longer active. Second Circuit News is long gone. There hasn't been a post on On Appeal in many a moon. The Induce Act Blog has changed it's name to Legislating IP. And the Blawg Channel has fallen apart, and it's mission has been taken over by Between Lawyers. These changes have been made to the blog roll. If you know of any suitable blogs that should be added, don't be shy; let me know.

Help! I used to be able to get direct links to cases through Findlaw. Now when I find a case, I get an adobe document without an URL. The same thing happens at the Second Circuit website. If anyone knows a way to get a direct link, I'd appreciate it. E-mail me at the link on the right.

Diversity Jurisdiction Under the Telephone Consumer Protection Act. The Telephone Consumer Protection Act prohibits the sending of unsolicited junk faxes. The statute provides the state courts with exclusive jurisdiction. But the Second Circuit has held that where there is a basis for diversity jurisdiction, a federal district court can hear the case. The decision in Gottlieb v. Carnival Corp., decided on February 3, 2006, can be found at the Second Circuit website

Partial Birth Abortion Law is Out. The Second Circuit, in National Abortion Federations v. Gonzalez held the the Parial Birth Abortion Ban Act was unconstitutional because it lacked an exception for the protection of a woman's health. Chief Judge Walker concurred in the result, and Judge Straub dissented from the ruling. The decision (by Judge Newman), concurrence and dissent can be found at the Second Circuit website.

Without Prejudice. In Camilli v. Grimes, the Second Circuit held that a District Court properly exercised its discretion in allowing the plaintiff to dismiss her claim without prejudice, even though such an action would prevent the defendant from bringing a malicious prosecution action. The dismissal in this case would only allow the plaintiff to reassert her claims if the defendant brought an action against her. The decision can be found at the Second Circuit website.