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Judicial inaction...
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Topic Started: Nov 4 2010, 12:42 PM (391 Views)
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Quasimodo
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Nov 4 2010, 12:42 PM
Post #1
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http://www.nytimes.com/2010/06/15/nyregion/15daniels.html
Families in 9/11 Financing Case Ask to Have Judge Replaced By BENJAMIN WEISER Published: June 14, 2010
Lawyers for families of 9/11 victims have taken the unusual legal step of asking a federal appeals court in Manhattan to replace a judge overseeing a group of terrorism-financing lawsuits, saying he is moving too slowly in resolving key motions.
The judge, George B. Daniels of Federal District Court in Manhattan, has yet to rule on almost 100 motions by defendants to dismiss the case, the lawyers said in a petition to the United States Court of Appeals for the Second Circuit.
The judge’s inaction is “effectively suspending the litigation,” the lawyers wrote, “and immunizing those alleged to have sponsored the attacks from having to answer for their conduct in this nation’s courts.”
Judge Daniels has allowed motions to linger in the past. In 2003, he was found to have 289 motions in civil cases pending for more than six months, easily the highest total of any federal judge at that time. But he has since cleared the backlog, leaving fewer than two dozen such motions pending.
[Is six months the cut-off point after which delaying a decision is considered to be too long?]
“The simple fact is we put into Judge Daniels’s hands our most important and urgent life issue,” said a plaintiff, Alice Hoagland of Los Gatos, Calif., whose son, Mark Bingham, was a passenger on United Airlines Flight 93 who fought back against the hijackers before the plane crashed in Shanksville, Pa.
Ms. Hoagland, 60, has submitted an affidavit concerning the delays. She said by telephone she feared that if Judge Daniels was not replaced with “someone else who will work faster, I won’t live to see any satisfactory outcome to this case at all.”
(snip)
Stephen Gillers, a legal ethics professor at New York University School of Law, said: “This is, of course, a massive case. The tasks required would be daunting to any judge. But that’s no excuse. Judges get paid to decide cases expeditiously. If they have trouble doing that, they should look for work elsewhere.”
(snip)
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Quasimodo
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Nov 4 2010, 12:45 PM
Post #2
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Evans et. al. v. Durham et al :
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October 5, 2007 COMPLAINT against LINWOOD WILSON, STEVEN W. CHALMERS, BEVERLY COUNCIL, RONALD HODGE, JEFF LAMB, STEPHEN MIHAICH, MICHAEL RIPBERGER, LEE RUSS, DNA SECURITY, INC., RICHARD CLARK, BRIAN MEEHAN, DURHAM, NORTH CAROLINA, CITY OF, MICHAEL B. NIFONG, MARK GOTTLIEB, BENJAMIN HIMAN, DAVID ADDISON ( Filing fee $ 350 receipt number 368490.), filed by DAVID F. EVANS, COLLIN FINNERTY, READE SELIGMANN.(DAVANT, CHARLES)
April 15, 2010 131 REPLY BRIEF with Respect to the City of Durham's 130 Supplemental Brief in Support of its' 127 MOTION to Dismiss Plaintiffs' Second Amended Complaint; filed by DURHAM, NORTH CAROLINA, CITY OF. (GILLESPIE, REGINALD) Modified on 4/16/2010 to reflect accurate title of pldg. (Lee, Lisa).
May 4, 2010 Motions Submitted: 125 MOTION to Dismiss Second Amended Complaint, 124 MOTION to Dismiss Plaintiffs' Second Amended Complaint, 120 MOTION to Dismiss Plaintiffs' Second Amended Complaint, 126 MOTION to Dismiss, 119 MOTION to Dismiss Second Amended Complaint, 127 MOTION to Dismiss Plaintiffs' Second Amended Complaint, 117 MOTION to Dismiss OF MICHAEL B. NIFONG, 123 MOTION to Dismiss Second Amended Complaint, 121 MOTION to Dismiss Plaintiffs' Second Amended Complaint to CHIEF JUDGE JAMES A. BEATY, JR. (Kemp, Donita)
November 4, 2010
No decision yet on whether or not the video of Nifong demonstrating a choke hold for a crime which never happened, is sufficient grounds for plaintiffs to proceed with their case against him...
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Quasimodo
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Nov 4 2010, 01:02 PM
Post #3
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Maybe the lax cases ought to be moved to Louisiania:
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http://www.lasc.org/opinions/98o2882.opn.pdf
SUPREME COURT OF LOUISIANA No. 98-O-2882 IN RE: JUDGE PAUL R. WIMBISH
ON RECOMMENDATION FOR DISCIPLINE FROM THE JUDICIARY COMMISSION OF LOUISIANA
Marcus, Justice
(snip)
Judge Wimbish assumed the office of Judge of the Thirty-Second Judicial District Court for the Parish of Terrebonne on January 2, 1980. On May 4, 1990, Ms. Mabel Demarco, a litigant in Judge Wimbish’s court, filed a complaint with the Judiciary Commission, stating:
The trial of this matter took place on March 30, 1990. It is now May and no decision has been rendered. I am particularly concerned about this because it is very common knowledge in Terrebonne Parish that Judge Wimbish’s decisions are delayed far in excess of what would be considered normal.
(snip)
La. Sup. Ct. Rule G, § 2(b) provides:
Each judge of a district, juvenile, family, parish, city municipal or traffic court shall report to this court, through the office of Judicial Administrator, on or before the tenth day of each month, all cases which have been fully submitted and under advisement for longer than thirty days, together with an explanation of the reasons for any delay and an expected date of decision.
(snip)
4 La. R.S. 13:4207 provides:
The district judges and the judges of the city courts, shall render judgments in all cases taken under advisement by them, within thirty days from the time the cases are submitted for their decision. All motions or applications for a new trial shall be passed upon by these judges within seven days from the time such motions or applications for a new trial are submitted to them for their decision; but by written consent of the attorneys representing both sides, filed in the records or spread upon the minutes, the time herein granted may be extended for a further period of ten days, but no longer.
(snip)
The failure of a judge to promptly dispose of the business of the court when there is no justifiable reason for the delay reflects adversely on the entire judicial system.
Prompt disposition of cases is important to the parties appearing in court and necessary to prevent backlogs that interfere with the administration of justice. This is especially true at the trial court level where the court’s primary function is finding facts and applying the law, and not one of making weighty pronouncements of law binding throughout the circuit. Because unjustified decisional delay serves to damage the esteem of the public for the judiciary, we conclude that such conduct is “prejudicial to the administration of justice that brings the judicial office into disrepute.”
(snip)
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Quasimodo
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Nov 4 2010, 01:36 PM
Post #4
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A criminal case from Canada, but with many applicable principles:
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http://csc.lexum.umontreal.ca/en/1987/1987scr1-588/1987scr1-588.html
R. v. Rahey, [1987] 1 S.C.R. 588 Carl R. Rahey v. Her Majesty The Queen INDEXED AS: R. v. RAHEY File No.: 18906. 1986: June 17; 1987: May 14. (snip)
Section 11(b) of the Charter gives an accused the right to be tried within a reasonable time. . . rather, it [also] encompasses protection against overlong subjection to the vexations and vicissitudes of a pending criminal accusation. The purpose ... is to limit the impact of various forms of prejudice to the accused by circumscribing the time period within which they may occur. . .
[IE, damage to reputation is also considered. This should IMHO also apply to a civil suit in which many matters are still unresolved in the public mind, to the extent that the plaintiffs are still suffering continuing injury from the wrongs originally done them] (snip) The time frame to be considered in computing trial within a reasonable time starts at the moment a person is charged but does not end at the moment the trial begins. It must continue until the end of the matter. Indeed, the stigma of being an accused does not end when the person is brought to trial but rather when the trial is at an end and a decision is rendered. In the case at bar, while the charges against the accused were complicated, the eleven‑month period of inaction on the part of the trial judge to decide a motion on a directed verdict, when inserted into the overall period of time, was unreasonable and unjustified. (snip) In assessing whether or not the delay was reasonable in disposing of the charges against an accused, prejudice to the accused resulting from the delay is very relevant. If the delay has prejudiced the accused in his ability to make full answer and defence to the charges, this factor should be considered in determining the reasonableness of the delay notwithstanding that the accused's right to a fair trial is protected by s. 11(d). The prejudice relevant under s. 11(b) is the prejudice arising from the delay in processing or disposing of the charges against an accused and not the prejudice arising from the fact that he has been charged. . . . Viva voce testimony played a fairly central role in this case and it was open to the judge to infer that the passage of time would affect the witnesses' memories, particularly in this case where the events are routine book‑keeping transactions which occurred ten years earlier. The appellant's liberty and security interests were also impaired by the receivership. The appellant succeeded in establishing a direct causal link between the delay in the criminal proceedings and the ongoing receivership. He was completely disabled from carrying on his business during this period. There is no reason why the civil impact of criminal proceedings cannot constitute prejudice to an accused resulting from delay under s. 11(b). (snip) The factors to be considered and weighed in determining whether there has been an infringement of the right to be tried within a reasonable time are: (a) whether the delay complained of is prima facie unreasonable, having regard to the inherent time requirements of the particular case; (b) the reasons or responsibility for the delay... and (c) the prejudice caused to the accused by a particular delay. With respect to prejudice, the prejudice caused by delay to an accused's right to a fair trial, and in particular to his right to full answer and defence, is a relevant consideration in determining whether there has been an infringement of the right to be tried within a reasonable time. . .Where the issues in a case may turn to some significant extent on testimony such prejudice may be inferred from the elapse of an unreasonable period of time. In the present case, such prejudice was sufficiently established to be a relevant factor in the determination whether there had been an infringement of the right to be tried within a reasonable time. (snip) The right to trial within a reasonable time is an ancient right, whose novelty in the Charter context is primarily a function of the flexible remedy provided to enforce it. In practice, the contours of the Charter remedy will do much to govern the present shape of that right. That being the case, there can no more be a single notion of breach than there can be a single remedy to meet it. The question of breach must, therefore, be assessed in terms of the interests protected by the section and such remedy as the court can provide to secure them. The principal interests of the accused relevant to trial within a reasonable time are first, the liberty interest, which may be impaired either by imprisonment or by bail conditions; second, the security interest, which as a general rule is impaired by the anxiety, stress and stigmatization arising out of delay, strongly added to in this case by the seizure of the appellant's assets; and finally, the fair trial interest, which may be impaired in this context to the extent that delay foreseeably damages the ability to present an effective defence. [IE, though the loss of memory by the witnesses] In assessing the reasonableness of any delay, a court may assume that the accused will have suffered an impairment to his security interest. The impairment to these interests must, in making a determination of reasonableness, be balanced against any proper reasons for delay advanced by the Crown. (snip) In the case at bar, the delay caused by the Provincial Court judge substantially impaired the accused's security interests and also seriously prejudiced his ability to conduct his defence. The eleven‑month period of inaction on the part of the trial judge to decide the motion on the directed verdict was clearly unreasonable and in breach of s. 11(b). There was no adequate explanation for the delay.
(snip)
To what extent have the plaintiffs' cases been harmed by the delay? (Two witnesses have died, and no one knows the state of the electronic and other records sought, or how witness memories may have been affected.)
To what extent have they suffered distress, emotional trauma, and anxiety over an unnecessarily extended period of time?
To what extent have their reputations continued to be harmed by the original wrong done them, by the failure to dispose of the litigation with relevant revelations of the truth of the claims made?
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Quasimodo
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Nov 6 2010, 12:33 PM
Post #5
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http://ftp.resource.org/courts.gov/c/F3/364/364.F3d.1112.01-36006.html
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"There can be no doubt that [Brotby's] baseless two year fight against each and every discovery request and court order has been conducted willfully and with the intent of preventing meaningful discovery from occurring. It has clogged the Court's docket, protracted this litigation by years, and made it impossible for [CTG] to proceed to any imaginably fair trial."
Different circumstances; but could anyone change a few words and fit making a $180 million claim of bankruptcy into the above?
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Quasimodo
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Nov 7 2010, 10:32 AM
Post #6
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Comment from another forum about another matter, but perhaps applicable:
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I propose a new Federal Rules of Civil Procedure rule allowing litigants a single peremptory challenge of a judge, a rule that is common in state and local courts. Federal judges who make a habit of not issuing written opinions [or deciding motions?] might then soon find themselves with a shortage of cases to decide.
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