Prosecutors will challenge appellate court reversal of murder verdict - Hawaii News - Staradvertiser.com

Prosecutors will challenge appellate court reversal of murder verdict - Hawaii News - Staradvertiser.com:

City prosecutors will seek an appeal of a state appeals court decision this week setting aside a murder verdict and will ask that the conviction be reinstated.

In a unanimous decision Tuesday, a three-judge panel of the Intermediate Court of Appeals overturned the conviction of Tyler Condon in the stabbing of his cousin Jake Ira Hale at an Ewa townhouse in 2007.

The court held that Deputy Prosecutor Franklin Pacarro Jr. made an improper argument to the jury that misstated the law.

The jury rejected a manslaughter verdict, which Pacarro said required "overkill," according to the appeals court. The jurors returned a verdict of second-degree murder.

I'm more or less just bookmarking this story, and the case at issue (PDF), with hopes that I'll soon have a chance to come back and read the case.

This is a good development:

Pre-Registration for Electronic Filing in the Appellate Courts:

The Hawaii Supreme Court and the Hawaii Intermediate Court of Appeals will introduce electronic filing in the appellate courts in the near future. August 23, 2010 is the tentative implementation date. Facilitated training will be offered before implementation.

In the meantime, the following may pre-register for electronic filing access:

• individual Hawaii attorneys,
• Hawaii law firms, and
• any self-represented party with an active case in the Hawaii Supreme Court or the Hawaii Intermediate Court of Appeals.

A Hawaii attorney whose status is “active," "active-government," "active-emeritus," or "active-judge" may register for electronic filing. However, attorneys admitted pro hac vice may not register for electronic filing and must file through registered-associated local counsel.

If you have questions, please email scco@courts.state.hi.us or call the Office of the Clerk at 539-4919.

Pre-registration is free. If you would like to pre-register click here.

Related information:

Proposed Hawaii Electronic Filing and Service Rules
Proposed amendments to the Hawaii Rules of Appellate Procedure
Questions and Answers

Hawaii gun laws and the Supreme Court's new 2nd Amendment decision

According to this piece in the Star Advertiser, law-and-order AG Mark Bennett and leftish law professor Jon Van Dyke are in agreement that Hawaii's relatively intrusive gun laws don't run afoul of McDonald v. Chicago (PDF), yesterday's Supreme Court decision applying against the states via the 14th Amendment's due process clause the Second Amendment's right of individuals to "keep and bear arms."

I'm not so sure. There seems to me to be a great deal of uncertainly about the contours of the right and the states' powers to reasonably regulate the right that will be worked out in courts for the foreseeable future.

Law.com - Justices Extend Gun Owner Rights Nationwide

Law.com - Justices Extend Gun Owner Rights Nationwide

(They decline, however, to overturn Slaughterhouse and apply the privileges or immunities doctrine).

Harper Lee's To Kill a Mockingbird, a contrarian view of a famously favorite among lawyers

Harper Lee's To Kill a Mockingbird, and What It Isn't | By Allen Barra - WSJ.com:

In all great novels there is some quality of moral ambiguity, some potentially controversial element that keeps the book from being easily grasped or explained. One hundred years from now, critics will still be arguing about the real nature of the relationship between Tom and Huck, or why Gatsby gazed at that green light at the end of the dock across the harbor. There is no ambiguity in 'To Kill a Mockingbird'; at the end of the book, we know exactly what we knew at the beginning: that Atticus Finch is a good man, that Tom Robinson was an innocent victim of racism, and that lynching is bad. As Thomas Mallon wrote in a 2006 story in The New Yorker, the book acts as 'an ungainsayable endorser of the obvious.'

It's time to stop pretending that 'To Kill a Mockingbird' is some kind of timeless classic that ranks with the great works of American literature.

Reading about law

Just ordered the Kindle edition of John Tucker's Trial and Error: The Education of a Courtroom Lawyer. I was intrigued for a couple of reasons set forth in the reviews quoted below. (Clicking on the image takes you to the title on Amazon.com).



From Publishers Weekly:

[A]t 51 Tucker made an unusual career move: he gave up his partnership and six-figure income with the prestigious Chicago law firm of Jenner and Block to write about legal issues that interested him.

From Booklist:

[R]ecounts his baptism in practical trial experience, his firm's pro bono criminal representation, and his appearances before the U.S. Supreme Court....His most famous public interest case was the defense of the Chicago Eight, the major protesters involved in the demonstrations at the 1968 Democratic convention that provoked police violence. Tucker's client list has included Mafia affiliates as well as heavyweight champion Muhammad Ali. Tucker provides a glance at high courtroom drama as well as the flaws in our judicial system...

The Power of Priming in Legal Advocacy: Using the Science of First Impressions to Persuade the Reader

Via the (new) legal writer: The power of priming in legal advocacy

Prof. Kathryn Stanchi has written an interesting article on priming, the process of influencing a person’s response to later information by exposure to prior information. She explains what priming is and how brief writers can use it to influence the reader’s emotional reaction to a story or interpretation of facts and law.

One to watch

...It's just the sort of clash one expects to arise locally.

AP - Environmentalists sue over Cape Cod wind project:

Environmental and watchdog groups claim in a lawsuit that federal agencies responsible for approving a wind farm off Cape Cod violated federal law by endangering protected migratory birds.

Ag land TVRs on the agenda again

I understand that Tim Bynum's Bill 2355 addressing potential legal infirmities of County Ordinance 864 regulating temporary vacation rentals on land designated "Agricultural" was on the agenda at yesterday's County Counsel meeting. The bill would, in part, allow owners of single family vacation rentals on Agricultural land to apply for a special land use permit providing they meet certain criteria. I hope to do a follow up soon of a post I wrote last August analyzing what I take to be the salient legal points. Until then, here's what I wrote then. It generated some thoughtful and interesting comments at the time:

Someone recently asked for my comments, as a legal blogger, about Kauai Ordinance 864, regulating single family transient vacation rentals, and whether last year’s amendments to the zoning ordinance were legal – specifically the article prohibiting, barring certain conditions, the issuance of non-conforming use certificates for existing single family TVRs on ag lands. (The ordinance can be downloaded from the county website, here).

The ordinance added § 8-17.10 (d) which provides:

Pursuant to HRS Chapter 205, no nonconforming use certificate shall be issued for any single-family transient vacation rental located on land designated “Agricultural” by State law, unless:

(1) It was built prior to June 4, 1976, or
(2) The Applicant has a special permit under Hawai’I Revised Statutes, Section 205.6 which specifically permits a vacation rental and the permit was secured prior to the enactment of this ordinance.

Normally, new zoning regulations limit their reach to nonconforming uses that commence after the regulation goes into effect. For one thing, state law (specifically, HRS 46-4(a) which empowers counties to regulate zoning) does not allow zoning ordinances to retroactively prohibit the continued use of a property that had been lawful before the ordinance. That is, an ordinance regulating single family TVRs on ag land cannot prohibit the continued use of a dwelling on ag land property as a TVR that was in use at the time of the ordinance – so long as that prior use was legal.

And besides, preexisting lawful uses of property are generally considered to be vested rights protected from governmental interference pursuant to due process principles under both the state and federal constitutions. (See, e.g., Waikiki Marketplace Investment Co. v. Chair of Zoning Board of Appeals, 949 P.2d 183, 86 Haw. 343 (Haw.App. 1997)).

Indeed, Ord. 864’s article regarding uses of non-ag-land single-family TVRs rendered non-conforming by the ordinance reflects this limitation by grandfathering otherwise legal dwelling units that were “being used as a vacation rental on an ongoing basis prior to the effective date of this ordinance.” § 8-17.10 (c).

Clearly then, any legal wrangling would come down to the question of whether single-family dwellings were legally operating as TVRs before passage of Ord. 864 last year. Because, if they were, the county can’t shut them down by zoning ordinance. In the public debate, one often hears the conslusory comment that TVRs (and by implication, single-family TVRs) were already illegal on ag lands even before the new ordinance.

The trouble with that position, however, is that the Hawaii statutes provide a legal definition of transient vacation rental (in the context of time share regulations), and that definition explicitly omits single-family dwellings. (HRS §514E-1: “"Transient vacation rentals" means rentals in a multi-unit building to visitors over the course of one or more years, with the duration of occupancy less than thirty days for the transient occupant”). And prior to passage of Ord. 864, the Kauai zoning code’s definition of transient vacation rentals mirrored the state definition word-for-word.

So, with regard to single-family dwellings, there’s no obvious way, prior to Ord. 864, to legally distinguish those with a duration of occupancy of less than thirty days from those with a duration of occupancy of thirty days or more. In other words, there appears to be no legal ground prior to Ord. 864’s change of definition, to tell those owning single-family TVRs that the use of their property, as a legal matter, constituted anything other than residential use.

And certainly people running single-family TVRs had nothing approaching legal notice that their activity was anything other than legal. After all, the county ordinances that regulated short-term rentals explicitly omitted their properties from regulation by defining TVRs as “multi-unit buildings.”

I’m going to predict, then, that those arguing that single-family TVRs in operation before the ordinance are by law grandfathered in have the upper hand, legally speaking, anyway, and that it will be an expensive prospect for the county to try to enforce the prohibition of single-family TVRs on ag land against those in existence before the ordinance was passed.

Congress Shall Make No Law

Congress Shall Make No Law: - a new First Amendment blog

Justice 'gave life to Hawaiian law' - Staradvertiser.com

via inversecondemnation.com:

Justice 'gave life to Hawaiian law' - Staradvertiser.com

This is a good development: Hawaii Bar Litigation Section meeting webcast

In this morning's email -

HSBA Litigation Section Members:

Thanks to the hard work of one of our board members, Shan Wirt, we are ready to webcast our Litigation Section meeting today.  This is a first test of our webcasting capabilities, so please have patience with any technical difficulties.  Below is the link to join our meeting at noon today:

The link is: http://www.ustream.tv/channel/hsba-litigation-section-meeting.  There is no need to register/provide info on ustream to watch the webcast, but one must submit some basic info (e.g., login, password, email and birthdate) in order to submit comments/questions to the broadcaster.  

If you are able to test the system for us today, please send us feedback later, particularly to let us know the quality of the audio and video and any other issues you may encounter. 

Lisa A Bail, Esq.

Update: The webcast went well. I hope more bar sections start webcasting meetings and events. I imagine it would increase membership from the neighbor islands.

Groucho-Father's Day

Bringing courts back into the public square

Mass. Court to be Test Pad for Blogs, Tweets via Robert Ambrogi's LawSites

A courtroom in Quincy, Mass., will become a test kitchen for using new media to cover legal proceedings, thanks to a $250,000 Knight News Challenge grant announced today...

The project will turn a courtroom in Quincy District Court into a laboratory to help establish best practices for digital coverage that can serve as a model for courts elsewhere. The courtroom will have a designated area for live blogging and the ability to stream court proceedings live to the public.
...
“The courts have sort of gone further and further way from the public and public access,” Davidow told Laura McGann, who wrote about the grant at Nieman Journalism Lab. “In the old days, they were built in the center of town. The community was able to walk into the courts and see what was going on. Modern life has done away with that. The bridge that was going in between the courts and the public was the media. The media has just less resources.”

Opening PDFs with Google Docs

Tired of my computer bogging down from all the pdf documents I open in a day, I went looking for a way to view online pdfs using Google Docs. (I've been using Google Docs to view pdfs from my files and those sent to me through email for some time). I did find a workaround in the Google Docs Viewer into which you enter the URL of the pdf document and a link is generated. You can email the link or embed it in a blog or website - or you can open it. That's kind of a lot of steps, though, for opening a document. So I was happy to stumble onto this Firefox add on which, when I click on a pdf link, provides the option of opening it with Google Docs.

Some recent local land use stories

via the Garden Island's Léo Azambuja -

Home on hold pending [citizen] lawsuit over the shoreline setback determination. The county planning commission

approve[d] the house design, but the approval includes a condition preventing him from building his house until a court decision is reached, which could take months.

Billionaire proposes massive home on grass farm in Kilauea - This piece has a really strange tone. Suffused with sarcasm, it reads like an editorial.

Kawakami’s change of heart could mean passage of farm-housing bill

Bill requires land owners to keep (their) vegetation off the beach

Via the Hawaii House Blog: Governor Lingle today signed into law House Bill 1808 (pdf) which requires the DLNR to "maintain access within beach transit corridors" by in turn requiring "private property owners to ensure that beach transit corridors abutting their lands [] be kept passable and free from the landowner's human-induced, enhanced, or unmaintained vegetation that interferes or encroaches in the beach transit corridors."

The beach transit corridor is the area seaward of the shoreline, while shoreline adopts the famous definition from HRS § 205A-1: "the upper reaches of the wash of the waves, other than storm and seismic waves, at high tide during the season of the year in which the highest wash of the waves occurs, usually evidenced by the edge of vegetation growth, or the upper limit of debris left by the wash of the waves."

In addition to criminal penalties, the bill authorizes the DLNR to issue notice to landowners who fail to maintain access within beach transit corridors:

If any landowner fails to remove the landowner's human-induced, enhanced, or unmaintained vegetation within twenty-one days of notice being issued, the department shall take any action authorized under section 183C-7 as necessary to maintain access within beach transit corridors; provided that if the landowner contests the basis upon which the notice was issued prior to the expiration of the notice period, the department's enforcement actions under section 183C-7 shall be tolled until the final resolution of the contested matter.

Kauai considering eminent domain for coastal path

...according to the Garden Island.

Resolution 2010-34, authorizing the condemnation of lands chosen for the path, went before the full council last week, but action was deferred pending an executive session.

Nudity on the beach: When are man boobs illegal?

A 1958 debate in the Harvard Law Review between legal theorists Lon Fuller and H.L.A. Hart produced the famous hypothetical of a theoretical law prohibiting vehicles from a park. The debate, which is rehashed in law schools every semester, explores the relationship of law and morality and legislative intent and the meaning of words, etc. Obviously the statute prohibits cars, but what about a military truck placed on a platform as a war memorial? What about bicycles? Does it depend upon the purpose of the law? If it is to to prevent noise pollution, a bicycle would not be a vehicle for the purposes of the law. The debate progresses toward the outer edges - or "penumbras" - as the discussion moves to roller skates, childrens' wagons, and strollers.

I bring it up because this story reminded me of it:

REHOBOTH BEACH, Delaware - Rehoboth Beach lifeguards requested police assistance late Saturday afternoon for a situation involving a group of transgender men who had their breasts exposed according to a report by the Rehoboth Weekend Update.
...
Over the radio the lifeguard reported that the male individuals claimed to be transgender and claimed they did not have to wear tops.
...
The beach patrol and police officer insisted the group was not in compliance with city ordinances.

According to the Update, a police source told them at least two of the men appeared to have breast implants.

The article helpfully quotes the ordinance at issue:

Offenses Against Morals

A male is guilty of indecent exposure if he exposes his genitals or buttocks under circumstances which he knows his conduct is likely to cause affront or alarm to another person.

A female is guilty of indecent exposure if she exposes her genitals, breasts or buttocks under circumstances which she knows her conduct is likely to cause affront or alarm to another person.

Topless bathing suits prohibited.

No female over the age of five years shall wear a topless bathing suit or otherwise fail to cover her breasts with less than a full opaque covering of any portion thereof below the upper portion of the nipple.

I wish I had time to pursue the legal positivist vs. moralist debate that this story naturally raises. As it is I'll just pose the question: If the statute encompasses men with augmented boobs, or transgender men (however we want to define that) then what about enormous boobs on men who are neither transgender nor augmented?

Big Huge Thesaurus

Supreme Court: absent clear waiver of Miranda rights, police can question you 'til you crack

The Court handed down a decision today - Berghuis v. Thompkins (08-1470) - setting out two new custodial interrogation rules that will make criminal defense attorneys' jobs a little more difficult.

First, invoking the famous Miranda right to remain silent requires a clear statement. Simply remaining silent doesn't cut it and police can continue to question a silent suspect for, well, in this case almost three hours. Second, if the suspect finally cracks and provides an incriminating response, that will work as a waiver of the right to remain silent and the statement can be used as evidence.

In Berghuis, officers informed a murder suspect of his rights after which the suspect sat more or less silently for nearly three hours as police continued to question him. Finally, an officer asked, "Do you pray to God to forgive you for shooting that boy down?" and the suspect tearfully answered, "yes." He refused to sign a confession or say anything further, but he was convicted of first-degree murder based largely on his one-word answer.

Of course, this case addresses the federal Fifth Amendment privilege against self-incrimination and it should serve as a reminder to all defense counsel to always make state constitutional arguments in addition to federal arguments when asserting that a suspect's constitutional rights were violated.