Legal Briefs (Tampa edition)

Legal Briefs (Tampa edition)

Lawyers in death-penalty trial strategy get top court hearing

The U.S. Supreme Court will decide whether defense lawyers in death-penalty cases must get the defendant's consent before conceding guilt as part of a strategy to avoid capital punishment.

The court agreed to hear Florida's appeal in the case of a man whose conviction and death sentence for tying a woman to a tree and setting her on fire were thrown out because there was no evidence he agreed to his lawyer's trial strategy. The Florida Supreme Court said the man must be given a new trial.

During Joe Elton Nixon's trial, his lawyer told the jury it probably would find his client had been proven guilty, though the lawyer argued that Nixon shouldn't be sentenced to death. The lawyer called no defense witnesses during the guilt phase of the trial. After Nixon was sentenced to death, he appealed on grounds his lawyer was ineffective.

Although the lawyer "did not dispute that his client was guilty of a crime for which the death penalty could be imposed, he vigorously disputed that his client was guilty of a crime for which a death penalty should be imposed," Florida's lawyers said in court papers filed in Washington.

The Florida Supreme Court granted Nixon a new trial in the death of Jeanne Bickner, who had been kidnapped from a mall in Tallahassee. The state court said last year that without evidence that Nixon specifically agreed his lawyer should concede guilt, the lawyer was required to "hold the state to its burden of proof."

In appealing to the Supreme Court, Florida's lawyers said Nixon didn't object to his lawyer's actions during the trial.

The state court didn't defer to the lawyer's decision on the risk of contesting guilt when the "issue of sentence would be litigated before the same jury who would have heard the evidence and decided the issue of guilt," the state's lawyers said.

Lawyers for Nixon said Florida courts have adopted a rule to keep the issue from arising again. If a judge suspects a defense counsel is using a strategy of conceding guilt, the judge is required to question the defendant on whether he or she agrees to the strategy, Nixon's lawyers said.

U.S. Supreme Court avoids

Indian gambling dispute

The U.S. Supreme Court rejected a Bush administration effort to limit the types of gambling offered by Indian tribes that aren't authorized to operate casino-style games such as slot machines.Led by Multimedia Games Inc. of Austin, Texas, shares of companies that make games and slot machines for gambling registered double-digit gains following the March 1 decision. The high court eliminated "significant legal uncertainty" surrounding the company's ability to sell its products to the tribes, Multimedia Games said in a filing with the Securities and Exchange Commission.

The government was seeking to stop tribes from using electronic devices that resemble video slot machines to dispense a paper "pull tab" that may be a winning ticket. The tribes say the machines are an "entertaining way" to sell the tickets and don't change the game itself. The court, without comment, left intact rulings favoring the tribes.

Federal law lets Indian tribes operate casino gambling such as slot machines and roulette only through tribal-state agreements approved by the U.S. interior secretary. Tribes without such agreements can offer games including bingo and pull-tabs, in which players buy a ticket that is pulled from a pre-printed roll. Players open a tab on the ticket to see if it's a winner. A video machine that can be used to sell the tickets "resembles, in both appearance and play, a slot machine or other casino gambling device," Justice Department lawyers said in court papers filed in Washington. Allowing such machines lets tribes operate "casino gaming without a tribal-state compact," government lawyers said.

Multimedia Games, the largest maker of bingo games for racetracks and casinos, and the other companies weren't directly involved in the appeals rejected March 1 by the Supreme Court. The cases are Ashcroft v. Seneca-Cayuga Tribe of Oklahoma, 03-740, and U.S. v. Santee Sioux Tribe of Nebraska, 03-762.

Bank of America ordered

to pay $75 million

Bank of America Corp., the third-biggest U.S. bank, was ordered by a California jury to pay at least $75 million for deducting fees from Social Security funds that had been electronically deposited into customer accounts.

Damages could eventually total $1 billion in damages, lawyers for the plaintiffs said. The jury in state court in San Francisco awarded $75 million in damages Feb. 25 plus $1,000 for each customer who may have been harmed. The lawsuit was filed on behalf of 1.1 million customers.

A judge will have to determine how many customers are eligible for the payments. Earlier in February, Bank of America agreed to pay $33 million to settle a separate California lawsuit that alleged the bank overcharged clients for trust accounts.

"We thought the suit was totally without merit. We treat these accounts the same way every other bank does," said Shirley Norton, a spokeswoman for the Charlotte, N.C.-based Bank of America.

In 2002, the 9th U.S. Circuit Court of Appeals in San Francisco ruled that Washington Mutual Inc.'s practice of deducting overdraft charges from Social Security funds with customers' consent was legal.

The Bank of America lawsuit was filed in 1998 by Paul Miller, who is disabled and received $640 a month in Social Security benefits that was deposited directly into his account. The bank improperly took money from his Social Security deposits to pay overdraft charges he incurred on another account, his lawyer said.

"What they claim is that they had a right to offset certain money claims and fees against the accounts," said Mark Johnson, one of Miller's attorneys. "According to the law in California, they don't have that right with respect to Social Security."

California law protects consumers from misrepresentations about their rights and authorizes special damages for elderly and disabled people. Customers such as Miller who have their Social Security payments automatically deposited in the bank sign up for overdraft protection that allows the bank to deduct fees, Norton said.

Novartis loses $18 million verdict

over lactation-suppression drug

Novartis AG, Switzerland's biggest drugmaker, must pay $18.3 million to relatives of a woman who died after taking a drug used to halt after-birth lactation, a Kentucky jury found.

Mary Margaret Gunderson, 32, had a seizure and died in October 1993, when she took the medication Parlodel to suppress breast-milk production after her second child was born, her attorney, Michael Hance, said. Gunderson's family sued the maker of the drug, Sandoz Pharmaceuticals Corp., a Novartis predecessor, claiming Parlodel had caused the seizure, he said.

The jury awarded $19.1 million on Friday, finding Novartis 90% responsible and her doctor 10% liable in Gunderson's death. Novartis said the drug wasn't responsible for her death and that it may appeal. "Strokes, seizures and other life-threatening events are risks associated with childbirth, especially in the post-partum period," the company said. "There are no scientific or medical data suggesting that the use of Parlodel increases those risks."

The jury ordered Novartis to pay $11.25 million in punitive damages, said Hance, of the Louisville firm of Franklin & Hance. The case is Gunderson v. Sandoz Pharmaceuticals Corp., No. 94-CI-04680 in the Circuit Court of Jefferson County, Kentucky.

Ford settles sudden-acceleration

Ohio lawsuit at trial

Ford Motor Co., the world's second-largest automaker, settled a sudden-acceleration lawsuit Feb. 27 brought by a Cleveland man who was left in a coma after his 1987 Crown Victoria crashed into a neighbor's house.

Attorneys for Leon Manigault, 77, said a defect in his car's electronic system caused it to speed up uncontrollably after he put it in gear. Ford and Manigault's family reached a confidential settlement just before closing arguments were scheduled in the trial in state court in Cleveland.

The suit brought by Manigault is one of a growing number of sudden-acceleration cases going to trial against Ford and other automakers.

Attorneys for accident victims contend they have new evidence that gives them a better chance of winning their damage claims before juries. Ford attorney John Coleman and Manigault attorney Thomas Murray declined to comment on the terms the settlement or the litigation.

"We just agreed it was time to settle," Murray said. "We're both relieved that it's over."

Jury: IBM isn't liable

for two workers' cancer

International Business Machines Corp. isn't liable for two former workers' cancer, a California jury decided in February in the first of about 200 toxic chemical cases against the world's biggest computer-maker to go to trial.

Former workers Alida Hernandez, who has breast cancer, and Jim Moore, who has non-Hodgkin's lymphoma, failed to prove in a four-month trial that chemicals used at an IBM hard-disk drive plant caused the cancer and that IBM doctors lied about the dangers of the chemicals, the Santa Clara, Calif. jury found.

Hernandez and Moore worked in an IBM clean room, a type of facility used by many computer and semiconductor companies to keep dust and impurities away from components. The chemicals that were scrutinized in the IBM case are used throughout the industry.

"It's probably more of a sigh of relief for technology companies in general," said Chuck Jones, who helps manage $8 billion for Stein Roe Investment Counsel in San Francisco, including IBM shares. "If IBM had been found negligent, it would have opened up the potential for a slew of lawsuits against all sorts of technology companies, especially the disk drive and the chip manufacturers."

To have ruled against Armonk, N.Y. based-IBM, jurors would have had to conclude that chemicals such as acetone and isopropyl alcohol used to coat and clean disks at the company's San Jose plant caused systemic chemical poisoning and that IBM doctors knew and hid the diagnosis from Hernandez and Moore.

IBM lawyer Robert Weber complimented the unanimous decision of the jury of 11 women and one man and said, "These claims and these allegations are nonsense," Weber said. The jury "cut through the smoke, they cut through the mirrors."

VeriSign sues ICANN

over web regulation

VeriSign Inc., the main operator of the Internet's address database, filed a lawsuit against a nonprofit group it said violated a contract and is blocking the company's attempts to start new businesses.

The Internet Corp. for Assigned Names and Numbers, known as ICANN, violated agreements with VeriSign by attempting to regulate the registration of Web site addresses, the company said in a statement distributed by PR Newswire.

The two sides are disputing who has authority over how so-called Internet domains are allocated and registered. VeriSign said in documents submitted to the U.S District Court, Central District of California, that ICANN only has authority to assist in technical coordination between companies offering registration service and cannot stop them from offering new related services.

VeriSign took legal action after two years of frustration at ICANN's failure to clarify guidelines for the introduction of new services, said Tom Galvin, the company's vice president of government relations. VeriSign has filed claims for damages, he said, declining to specify the amount.

VeriSign's locator service offers Internet users alternative Web sites that are spelled similarly to mistyped addresses. A user typing in "www.bookstre.com" would be offered the alternatives "www.bookstore.com" or "www.bookstores.com," an example VeriSign gave in its legal filing.

Tampa land use attorney

spoke to builders, contractors

Tampa land use lawyer Ron Weaver criticized the grassroots Florida Hometown Democracy campaign at a recent meeting of Tampa builders and contractors, saying the bill would create chaos if approved by voters.

Weaver, who chairs the environmental and land use department at Stearns Weaver Miller Weissler Alhadeff & Sitterson PA, said the ballot initiative is a result of the public's frustration with governments' inability to control sprawl and overdevelopment. But if it's passed, it would disrupt orderly growth in Florida, cripple local economies and adversely affect property values, Weaver said. He urged residents to vote against the initiative that would mandate voter approval of all future changes to local comprehensive land use plans.

"Nearly 12,000 comprehensive plan changes are proposed in Florida in any given year," Weaver told the Tampa Bay Chapter of Associated Builders and Contractors at a Feb. 12 meeting. "That volume alone would put an incredible, if not impossible, burden on a voter approval process. Voters don't have the time or inclination to study these highly complex and technical issues before voting on plan amendments. Eliminating competent professional planning staff from the process is a recipe for sure failure."

Weaver is the immediate past chair of the Governmental Affairs Committee for the Tampa Bay Chapter of the National Association of Industrial and Office Properties.

Florida Bar seeks

Nominees for JNCs

Lawyers interested in applying for a position on the local Judicial Nominating Commission should apply to the Florida Bar by March 19.

The Florida Bar will send the names of three nominees for each vacancy to Gov. Jeb Bush who will make the final choice. Applicants must be engaged in the practice of law and a member of the circuit served by the commission on which they seek to serve. In addition, applicants must comply with Florida's financial disclosure laws.

Applications can be downloaded from the bar's Web site, flabar.org, or obtained by calling (850) 561-5600, extension 5757. Completed applications should be sent to the bar's executive director, 651 E. Jefferson St., Tallahassee, Fla. 32399-2300.

Tampa attorney nominated

for American Bar position

Tampa lawyer Michael A. Bedke, a partner with Piper & Rudnick, was recently nominated for membership on the American Bar Association Board of Governors. The board oversees management of the ABA, the world's largest voluntary professional membership association.

Bedke, rated "AV' by the Martindale-Hubbel Law Directory, represents clients in all aspects of real estate and commercial lending work. His clients include institutional lenders, major developers and national retailers.

The names of the ABA nominees will be presented to the association's House of Delegates for election in August.

'The Esquire Flyer'

Run for Law

The 13th annual 5K Law Run is April 3 in Gulfport.

"The Esquire Flyer," sponsored by the St. Petersburg Bar Association, Stetson University College of Law and city of Gulfport begins at 9 a.m., with registration beginning at 8 a.m. Proceeds benefit the Community Law Program.

Call (727) 823-747 for more information.

New associate at

Akerman Senterfitt

Harry P. Teichman recently joined Akerman Senterfitt in Tampa as an associate in the firm's tax group.

Teichman, a graduate of the University of Miami School of Law, holds an LL.M. in taxation from the New York University School of Law. He represents clients embroiled in disputes with the Internal Revenue Service.

Stetson law trial team

wins regional competition

A team of students from Stetson University College of Law recently won the Association of Trial Lawyers of America's Regional Student Trial Advocacy Competition in Jacksonville. The team now advances to the national competition.

The four-person team - Nicole Deese, Joel Elsea, Chris Hersem and Shawn McMillen - defeated the University of Georgia team in the finals. The Stetson team will compete March 11 in West Palm Beach.

The students were coached by 1998 Stetson graduate Creighton Shafer and professor Pamela Bell.

Free Hispanic legal clinic

At Hispanic Outreach Center

Local lawyers are hosting a March 8 workshop for Spanish-speaking people in need of legal advice at the YWCA Hispanic Outreach Center, 612 Franklin Street, Clearwater.

The volunteer attorneys will provide free information on immigration, landlord/tenant, divorce, custody, child support, labor/employment and home buying issues. The workshop is sponsored by the Clearwater Bar Association, Pro Bono Committee, co-chaired by attorney Ky Koch and Judge Nancy Moate Ley in cooperation with Gulfcoast Legal Services and the YWCA. Members of Stetson Law School's Hispanic Bar Association will assist with interviews.

For more information contact Jane Helms of Gulfcoast Legal Services, (727) 443-0657 or [email protected].

Nominees sought for

Professionalism Award

Nominations for the fourth annual Professionalism Award, sponsored by the Gulf Coast Business Review (GCBR) and St. Petersburg Bar Association, are being sought. Nominees should exemplify the Florida Bar's Creed of Professionalism.

Fax the name of a nominee, along with a description of why the lawyer deserves the award, to the St. Petersburg Bar at (727) 823-8166.