Monthly Archives: April 2014

Criminal Forfeiture is Taking the “Just” out of Justice: Kaley v. United States

Author: Cameron Downer, Associate Member, University of Cincinnati Law Review

On February 25, 2014, the United States Supreme Court in Kaley v. United States held that defendants are not constitutionally entitled to a pre-trial hearing to challenge a grand jury’s probable cause determination that they committed a crime. This decision means a grand jury determination is an appropriate trigger to allow forfeiture of the defendant’s property under 21 U.S.C. §853(e).[1] Justice Kagan, in her majority opinion, reasoned that since a grand jury indictment may lead to the pre-trial restraining of persons, it similarly has the power to deprive a person of his assets. Therefore, the grand jury may deprive someone of both liberty and property, even if that property is used to pay for the person’s attorney.

Although the Supreme Court hopes to prevent pitting judges against grand juries, the majority’s opinion in Kaley opens the door for prosecutorial abuse. Pre-trial forfeiture can now be used as a weapon by the prosecution to deprive a defendant of his counsel, without challenge. Considering a grand jury indictment is a mere “rubber stamp” in the perspective of the prosecution, the prosecution now has unfettered discretion to deprive a defendant of counsel, thus unfairly increasing the chances of successful prosecution.[2]

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Disclosing a “Butt-Dial”: A Funny (but Important) Crack in Title III

Author: Matthew Byrnes, Associate Member, University of Cincinnati Law Review

Although many people have suffered from the potentially humiliating consequences of a so-called “butt-dial” or “pocket-dial,” it is likely that few, if any, have ever sought civil damages against the recipient. That is, until Jim Huff, chairman of the Kenton County Airport Board and his wife, Bertha, filed suit against Carol Spaw, a secretary at the airport, for receiving, recording and disclosing conversations she overheard when Mr. Huff placed a pocket-dial to her desk phone. U.S. District Court Judge David L. Bunning dismissed the lawsuit on the grounds that the Huffs lacked an objectively reasonable expectation of privacy and the Huffs have filed an appeal.[i] The case is likely one of first impression with ramifications that extend well beyond the civil context. For example, many individuals have been arrested after placing pocket-dials to 911 while discussing or in the commission of criminal acts.[ii] If an objectively reasonable expectation of privacy were to be found, this evidence would have to be suppressed under Title III’s exclusionary rule.[iii] But despite the novelty of the issue and circumstances, the history of Title III and its application in both civil and criminal contexts support dismissal of pocket-dial based claims.

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Where Personal Meets Professional:  The Difficulties of Proving Tortious Interference by Clients in the Firm Environment

Author: Bradley Dunkle, Associate Member, University of Cincinnati Law Review

Carol Sparks Drake, an Indiana attorney, recently saw her home and work lives collide in a most unfortunate manner.  For more than twenty years, Drake worked as a partner in the law firm of Parr Richey Obremskey & Morton (“Parr Richey”).  However, in 2006, the partners reconstituted the partnership, electing to leave Drake out.[i] Why did the partners of Parr Richey choose to cut out this long term partner despite Drake’s impression that “none of the partners had indicated in any way that [her] future with the firm was in any jeopardy?”[ii] Drake’s dispute with Duke Realty, a Parr Richey client, over land use near her family residence, a forty-six acre farm in Boone County, Indiana, appears to be the answer.[iii] Although Drake’s contract with Parr Richey could be terminated at-will, she claims that Duke Realty impermissibly interfered with her employment contract and influenced Parr Richey to terminate her.[iv] The Indiana Supreme Court’s determination in Drake v. Dickey that a third party can tortuously interfere with an employment contract could prove important in determining how much influence clients have on businesses.[v]

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The New Batson Challenge, Part II: Clarifying Windsor’s Standard of Review

­ [1] Author: Ryan Goellner, Associate Member, University of Cincinnati Law Review

In Batson v. Kentucky,[2] the Supreme Court held that peremptory challenges of members of a jury pool are subject to the guarantees of the Equal Protection Clause. Last year, in United States v. Windsor,[3] the Court struck down the federal Defense of Marriage Act (DOMA) as violative of the Fifth Amendment’s Equal Protection and Due Process Clauses. In January 2014, the Ninth Circuit applied these decisions in SmithKline Beecham v. Abbott Laboratories[4] to extend the protections of Batson to peremptory challenges of gay and lesbian jurors. In so doing, the court relied heavily on Windsor, essentially appropriating the Supreme Court’s reasoning in Windsor to declare that laws that classify persons based on sexual orientation are reviewed under a heightened scrutiny standard. This case is notable, first, because it represents a further extension of Batson’s growing protections, but more importantly, because it demonstrates how the Supreme Court’s decision in Windsor invited lower federal courts to declare a standard of review for laws that classify persons based on sexual orientation and initiated a legal battle to distill the “spirit of Windsor” into a manageable judicial standard.

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