law

How may US judges vet experts for jurors? The new evidence rule set to take effect is sparking debate

Delaware Law Weekly

An upcoming change to a federal evidence rule has garnered support from those who say judges have not been consistently stringent in evaluating expert testimony post-Daubert, but critics say it’s a push for an unfair defense bar advantage billed as a crackdown on junk science at trial.

The update to Rule 702, set to go into effect officially on Dec. 1, has raised the issue of whether it’s a long overdue way to hold judges to an evidentiary standard they should have been following for decades or if it encourages them to cross over into the jurors’ domain.

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Delaware bar leaders: Admission changes remove obstacles, maintain high standards

Delaware Law Weekly

Attorneys are expressing hope that a series of changes to Delaware’s bar exam and admission process will remove unnecessary obstacles to practicing law in the state while keeping intact the high admission standards it’s known for.

Lowering the exam cut score by two points, offering the exam twice a year and cutting back the essay section and its possible topics significantly are overall positive, leaders in Delaware’s legal education community said, but they may be the first of many changes in a more dramatic overhaul of the country’s most exclusive bar.

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Shareholder tensions rise as corporations consider limiting officer liability

Delaware Business Court Insider

Delaware corporations and their shareholders have over the last few weeks begun navigating the recently enacted law allowing them to limit corporate officers’ liability, with the first vote approving the change closely followed by the first lawsuit on the issue.

The law, which went into effect Aug. 1, is thought by some to be in effect little more than a formality, extending officers the same exculpations board members have had for years in Delaware, but others are concerned by the impact on options shareholders would have when making breach of duty of care claims.

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The ‘longest,’ ‘most emotional’ experience: Attorneys mark final plan approval in Boy Scouts case

Delaware Law Weekly

More than two and a half years after the Boy Scouts of America first filed for bankruptcy in the District of Delaware, attorneys for tens of thousands of sexual abuse survivors are celebrating the court’s approval of a final Chapter 11 plan.

Judge Laurie Selber Silverstein’s final approval last week means a trust of more than $2.4 billion in settlement funds obtained to date can start to be distributed to the more than 82,000 abuse claimants, though there’s no set timetable for when that process will be complete.

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Corporations are (made up of) people, too: How corporate lawyers are dealing with juror mistrust

Uncategorized

Masks and plexiglass dividers in jury boxes might be on their way out as the pandemic fades, but there’s a growing trend among jurors that’s only getting stronger: skepticism toward the big, bad, faceless corporation.

That’s led many who represent companies to place more of an emphasis on humanizing their clients in an effort to offset jurors’ growing David-and-Goliath mindset in cases pitting a large corporation against one person or a smaller entity.

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Delaware DOJ’s public corruption trial success rate signals case against state auditor will be tough

Delaware Law Weekly

Delaware Auditor Kathy McGuiness is heading to trial this week, facing five corruption-related criminal charges.

If the Department of Justice’s recent track record on public official conviction is any indication, a full acquittal isn’t out of the question, but it’s also not unlikely McGuiness will be convicted of at least one charge.

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Connolly Gallagher attorney elected to Delaware senate, unseating 20-year incumbent

Delaware Law Weekly

A Connolly Gallagher attorney won election to the Delaware Senate on Tuesday, flipping the fifth district seat blue for the first time in at least four decades.

Kyle Evans Gay said Wednesday she attributed her win over 20-year Republican incumbent Catherine Cloutier to Brandywine Hundred voters’ prioritization of action on education, health care and COVID-19 relief and recovery.

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Nearly 40 years after South Dakota changed sentencing law, dozens are serving 100 years or more for first-degree manslaughter

The Daily Republic

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Nearly 25 years ago, Joaquin Ramos entered the South Dakota State Penitentiary to begin a life sentence for first-degree manslaughter, angry about the circumstances that led him there.

On Aug. 22, he sat down with The Daily Republic during regular evening visiting hours in the penitentiary’s visitation room. Over the course of about an hour and a half, as other inmates chatted and played cards with family members, he spoke about his time in prison and said if he hadn’t been put behind bars, he would likely have remained the angry person he was when he committed his crime.

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Veto of industrial hemp bill hasn’t ended discussion

The Daily Republic

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After a legislative session riddled with disagreement on the issue, the state Senate’s failure to override Gov. Kristi Noem’s veto on Tuesday pushed the possibility of legalizing industrial hemp back until at least next year.

Most of the area’s legislators were in favor of H.B. 1191, and all but one of the legislators who represent districts in The Daily Republic’s coverage area voted consistently for the bill’s passage throughout the session.

Meanwhile, freshman Sen. Rocky Blare, R-Ideal, was one of the 13 senators statewide who voted against the veto override, and he has consistently voted against the bill.

“There’s a lot of people that think that I’m wrong – and maybe I am – that we’re probably going to be late to the game and not get this done, and it’s going to hinder our farmers’ processes and economic development in the state,” Blare told The Daily Republic in a phone interview Wednesday morning. “I heard a lot of people that had concerns about it, and I’ve heard people call me every name in the book for not doing it.”

Blare, a member of the Senate Agriculture and Resources Committee, said he’s not opposed to considering future bills legalizing hemp, but that several factors kept him from supporting the bill that was under consideration this year.

While he said he shared Noem’s concern that legalizing hemp could lead to legalizing marijuana and was wary of the $1.2 million the Legislative Research Council said the bill would cost the state, his primary concerns were those outlined in a presentation by the South Dakota Department of Public Safety that he said indicated legalizing hemp would lead to testing issues for law enforcement.

“The state’s attorney, attorney general, Department of Health were all against it, which are all big in my mind, so I’m not going to second guess or question their thoughts and their concerns about it,” Blare said. “They’ll never be 100 percent, but they understand that we want this to come in and (be done) legally, and we want to support our farmers and their ability to do this.”

However, Sen. Stace Nelson, R-Fulton, doesn’t think the issue of law enforcement potentially not being able to discern hemp from marijuana immediately was pressing enough to justify voting against the bill.

“Cocaine and some of these other refined drugs are a white, powdery substance,” Nelson said. “Are we supposed to outlaw flour? Are we supposed to outlaw sugar, salt, because you can’t tell from the naked eye whether that’s the illegal item? It’s ridiculous that we expended so much effort to try and keep a legal substance illegal because of the excuse that it’s difficult for law enforcement to tell it from its illegal cousin.”

Like others who advocated for the hemp bill throughout this year’s legislative session, Nelson said that being able to grow hemp would have had significant economic benefits for farmers in his district and across the state who are struggling with the markets for other crops.

Nelson also questioned Noem’s stance on hemp, saying that she supported the legalization as part of the recently passed federal farm bill but not as a proposal for South Dakota.

During a media call Wednesday afternoon, Noem said that asserting she’s taken opposing stances on hemp with the two bills is an inaccurate twisting of her words. She said the farm bill did not endorse or mandate the legalization of industrial hemp, but that she had supported its inclusion of a provision that allowed states to determine whether they would allow it.

“I fully support the fact that South Dakota should have been having this debate, and the fact that we did was entirely appropriate,” Noem said. “I know that many of the proponents of the hemp bill were twisting that and making it into something that wasn’t true.”

Noem said she asked legislators to wait to legalize industrial hemp until a point where USDA and FDA guidelines across the country were laid out and included regulations for CBD oil, which became a larger part of the bill as it made its way through the legislature.

“We do not have testing kits that we can utilize. We do not have room in our state lab to house the equipment we would need to purchase to handle this,” Noem said. “We have seen other states that are being sued because they haven’t conducted enforcement adequately, and it opens up a whole new realm of consequences that I just believe we can’t take a risk in the state of South Dakota.”

Nelson, meanwhile, feels that Noem, along with those who voted against overriding her veto of H.B. 1191, are making hollow excuses. He also said allowing farmers to grow hemp in South Dakota is not a new concept.

“During WWII, South Dakota and other states had massive hemp crops,” he said. “Basically, what we’re trying to do is get South Dakota back to its roots. Industrial hemp was grown by our founding fathers. It just does not make a lot of sense for these people who claim to be limited-government conservative Republicans to say that we need more government to keep people from growing illegal products.”

Presumptive probation remains controversial six years after passage

The Daily Republic

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At 31 years old, Nick Tischler has spent nearly a third of his life in prison for drug charges.

In a letter he sent to The Daily Republic recently, Tischler wrote that if presumptive probation had been in place when he was first sentenced at age 18, he might have been able to get treatment, rather than being sent somewhere he said did not rehabilitate him.

“The years in the penitentiary taught me the code of conduct, taught me the rules to survive in prison,” Tischler wrote from the Davison County Jail. “What it did not do is prepare me for the real world. It has absolutely crippled me, chastised me; realistically, it institutionalized me.”

Presumptive probation was one of many changes made to the state’s criminal justice system as part of Senate Bill 70, also known as the Public Safety Improvement Act, which was passed in 2013. Now, it’s written into South Dakota law that courts are to sentence people convicted of a Class 5 or 6 felony to probation, unless there are aggravating circumstances in the case or if the person being sentenced is otherwise ineligible for probation.

Tischler was discharged from the Department of Corrections in May of 2018 but was arrested a total of four times in November and December. He’s now spent several months in the Davison County Jail as he awaits trial for charges of possession of a controlled substance, forgery and possession of an invalid license.

“If I was condemned at 18 years old to be broken and penitentiary bound, should one expect a rehabilitated me or a broken me after 10 years inside the South Dakota (State) Penitentiary?” Tischler wrote.

South Dakota Attorney General Jason Ravnsborg has made repealing presumptive probation one of his top priorities since he took office in January, arguing that the statute restricts power from law enforcement and courts.

But Senate Bill 19, which would have been a step toward implementing the repeal, failed with an 18-12 Senate vote on Feb. 22.

Ravnsborg told The Daily Republic in December, before he took office, that he admired SB 70’s goal of decreasing the state’s prison population, but that it had not been effective. He also said that by repealing presumptive probation, he hoped to use the possibility of prison time to incentivize lower-level drug offenders to work with law enforcement to track down and put away drug dealers.

Legislators estimated prior to the vote on SB 19 that repealing presumptive probation would cost the state an additional $4 million per year to house additional inmates, and with current facilities nearing capacity, an additional prison would have to be constructed, at an estimated cost of $14 million.

Ron Freeman, chief court services officer for South Dakota’s First Judicial Circuit, said that he’s seen an uptick in the number of people on probation in the circuit since SB 70 was passed, estimating the number of those on probation has increased by about 10 to 15 percent.

“I think we would definitely see an increase in the number of offenders sentenced to the penitentiary and, from what I am hearing, most likely a need for the state to build additional prison space,” Freeman said on what might happen if presumptive probation were repealed.

Freeman said that in fiscal year 2017, it cost $75.83 per day to house one inmate in the South Dakota State Penitentiary. Some of the state’s other facilities, however, cost significantly less.

In South Dakota, people on probation don’t have to pay supervision fees on top of their court-ordered fines and other payments, but the average daily cost to supervise someone on probation is $3.74, according to Freeman

As of Feb. 12, 13.64 percent of the state’s prisoners were incarcerated for possession of a controlled substance in schedules I or II, a Class 5 felony which includes the possession of drugs such as methamphetamine, according to the South Dakota Department of Corrections. More people are in prison for that charge than for any other.

The next most-represented charge in South Dakota’s prisons is unauthorized ingestion of a controlled substance in schedules I or II – also a Class 5 felony – of which an additional 9.48 percent of all inmates were convicted.

For those two charges, 890 people are currently serving time in one of South Dakota’s prisons – more than are incarcerated for rape, robbery, murder, manslaughter and burglary combined.

In total, drug offenders make up just under a third of the state’s current prison population, and 82 percent of those offenders are serving time for violating one of South Dakota’s 15 Class 5 or 6 felony drug statutes.

At the end of January, there were 2,930 people in South Dakota on either parole or supervision for a suspended sentence, meaning about 43 percent of people who have been convicted of a crime and haven’t yet completed their sentences are not currently serving prison time.

Freeman said that although slightly more people may be on probation now, because the Department of Social Services administers many of the community-based treatment programs implemented by SB 70, such as drug courts, Cognitive Behavioral Interventions for Substance Abuse (CBISA) and Moral Reconation Therapy (MRT), court services has not seen a drastic change in workload.

Freeman thinks it’s beneficial to send people to treatment programs rather than prison, though it depends on the person.

“People need to remember that prisons are for punishment,” he said. “Drug Court programs are intended to provide rehabilitation in the community with the additional expectation of accountability.”

Since May 2015, 25 people have graduated from the James Valley Drug and DUI Court, which meets regularly in Davison County. Of those 25, two are currently in prison for offenses committed after their graduation, and one is currently awaiting sentencing for drug charges.

Freeman also said that while presumptive probation does place some restrictions on sentencing, most people who have been placed on probation under it would have been placed on probation anyway if presumptive probation were not in place, and those who violate probation or commit subsequent offenses are not exempt from going to prison.

“Some of the folks that are on presumptive probation are under the impression that, ‘Well, I can’t go to the penitentiary because I’m on presumptive probation, and the court doesn’t have a choice,'” Freeman said. “Well we do have a choice, and if you aren’t going to follow the rules and we bring you back into court on a probation violation maybe once or twice, eventually the judge will get tired of seeing you, and you will go to the penitentiary.”