"Bonds prosecutors seek to admit tests at trial"

How Appealing has a story about prosectors in the government's case against Barry Bonds. He also links to the audio of the oral argument, which the ninth circuit released today. The Mercury News article he links to describes what is at stake as: "A three-judge 9th U.S. Circuit Court of Appeals panel appeared skeptical at times of the prosecution's arguments to overturn San Francisco U.S. District Judge Susan Illston, who in March excluded perhaps the government's best evidence on the eve of trial, including three positive steroid tests allegedly linked to the former San Francisco Giants slugger. But at least one of the 9th Circuit judges, Carlos Bea, also had some tough questions for Bonds' lawyer, Dennis Riordan." 

The How Appealing post is below:

'Bonds prosecutors seek to admit tests at trial': Bob Egelko of The San Francisco Chronicle has a news update that begins, 'A prosecutor in the Barry Bonds perjury case asked a federal appeals court Thursday to remove the government's biggest obstacle to winning a conviction: the refusal of Bonds' trainer to testify about drug tests that might show the former Giants star lied to a grand jury about steroid use.'

Howard Mintz of The San Jose Mercury News has an update headlined 'Feds try to bolster Barry Bonds perjury case in appeals court.'

And The Associated Press reports that 'Feds fight for key evidence against Bonds.'

The U.S. Court of Appeals for the Ninth Circuit has made available for download the audio of today's oral argument via this link (4.76MB Windows Media audio file).

Florida Supreme Court Vacates Death Sentence For Failure To Present Evidence Of Mental Capacity

In Hurst v. State (07-1798), released today by the Florida Supreme Court, the Court vacated the defendant's death sentence and remanded for a new penalty phase proceeding.  The seventy-five page opinion rejects all but one of the defendant's arguments.  The defendant, "who was nineteen at the time of the murder, was convicted of the May 2, 1998, first-degree murder of Cynthia Harrison in Escambia County. His conviction and sentence of death were affirmed on direct appeal in Hurst v. State, 819 So. 2d 689 (Fla.), cert. denied 537 U.S. 977 (2002)."   Here, the defendant:

 appeals from an order denying his motion filed under Florida Rule of Criminal Procedure 3.851 seeking to vacate his judgment of conviction of first-degree murder and sentence of death...Hurst has raised several guilt phase postconviction claims and one penalty phase claim. He also contends that the cumulative effect of errors in the guilt and penalty phases deprived him of a fair trial. We turn first to the guilt phase claims.

All of the arguments were rejected with one exception:

Hurst contends that trial counsel failed to adequately investigate and present mental mitigation evidence of his low IQ, borderline intellectual functioning, and possible organic brain damage caused by fetal alcohol syndrome, all of which would have established statutory and nonstatutory mitigation and could have provided the jury with a basis to recommend life

The Court concluded:

We reiterate the principle that not every capital defendant requires a mental evaluation, but where, as here, available information indicates that the defendant could have significant mental health problems, counsel will be deficient in failing to investigate the defendant‘s mental condition for purposes of mitigation. Because there was no reasonable, strategic reason not to present any mental mitigation during the penalty phase of Hurst‘s trial, and a reasonable investigation would have disclosed statutory and nonstatutory mitigation that could have shored up the otherwise weak mitigation, counsel was deficient in his performance under the first prong of Strickland.

***

As the postconviction court found, after hearing the mental health experts‘ testimony at the evidentiary hearing, both statutory and nonstatutory mitigation is available for consideration that was not available during the penalty phase of Hurst‘s trial. There appears to be no countervailing "double-edged" sword to presentation of this mitigation—it did not indicate antisocial personality disorder or another unfavorable psychiatric condition and was not inconsistent with Hurst's "not guilty" posture. Because this mitigation was not made available for the jury or the trial judge to consider before the death sentence was imposed, our confidence in the imposition of the death penalty in this case is undermined. Accordingly, we must vacate the death sentence in this case and remand for a new penalty phase proceeding.

When Perpetrating Fraudulent Financial Scheme...Don't Send Info To Secret Service

If you are planning to send out faxes to perpetrate a financial fraud scheme, probably should not send one the United States Secret Service stating you are ready to buy them.  Thomas Francis at the New Times has a story here and the N.Y. Times has a story here.  The N.Y. Times article states:

The case began four years ago, when the U.S. Secret Service office in Wichita got an unsolicited fax from the Florida company saying it had buyers interested in purchasing the business.

Lori S. Rowe and Administrative Law Judge T. Kent Wetherell II Appointed To First District

Yesterday, Governor Crist appointed Lori S. Rowe and Administrative Law Judge T. Kent Wetherell II to the First District.  The press release can be found here.

"No new trial for Texas death row inmate despite Collin County prosecutor's affair with judge"

Howard Basham at How Appealing had the following today:

"No new trial for Texas death row inmate despite Collin County prosecutor's affair with judge": The Dallas Morning News has this update.

And The Associated Press has a report headlined "No retrial for condemned man after judge-DA affair."

Today's ruling of the Texas Court of Criminal Appeals -- that State's highest court in criminal cases -- consists of a per curiam order and a dissenting statement.

Interestingly, Florida reached a different result relating to allegations of an improper relationship between a Judge and prosecutor. [See here].

Third District Issues Clarified Opinion Relating To Default Judgment

In Infante v. Vantage Plus Corp., et al (3D08-1960), the Third District granted a motion for clarification.  The original opinion, released on June 24, 2009, was discussed here.  As with the original opinion, the court held that "We reverse because Infante correctly asserted all of the causes of action in her complaint, and thus, the trial court improperly vacated the default final judgment on the grounds that the complaint was technically deficient."

The main additions/changes to the clarified opinion appears to be the following:

“A default admits every cause of action that is sufficiently well-pled to properly invoke the jurisdiction of the court and to give due process notice to the party against whom relief is sought.” Bowman v. Kingsland Dev., Inc., 432 So. 2d 660, 662 (Fla. 5th DCA 1983). Furthermore, as we stated in Becerra v. Equity Imports, Inc., 551 So. 2d 486, 488 (Fla. 3d DCA 1989), a “judgment by default operates as a waiver of any mere formal errors in plaintiff’s pleading but does not cure a totally defective complaint or waive errors which go to the foundation of plaintiff’s cause of action.” (citing 49 C.J.S. Judgments § 200 at 356 (1947)).

***

In Moynet v. Courtois, 8 So. 3d 377, 380 (Fla. 3d DCA 2009), we stated that plaintiff’s “failure to allege criminal intent is fatal to their cause of action for civil theft. Moreover, there are no other facts alleged from which criminal intent may be implied.” While the words “criminal intent” did not appear on the complaint, it is quite detailed in setting forth how the defendants conspired to defraud Infante of her money. We have never required the incantation of magic words, nor voided default judgments on the basis of mere technical errors in pleading. See, e.g., Lazcar Int’l., Inc. v. Caraballo, 957 So. 2d 1191, 1193 (Fla. 3d DCA 2007)."

Magistrate Judge Must Enter Written Order - Trial Court Cannot Review Oral Ruling

In City of Key West Tree Commission v. Havlicek (3D09-1595), the Third District reversed the trial court's review of a oral ruling by a magistrate judge because "The Magistrate should enter a written order, and without it, the circuit court has no jurisdiction."

Fees Cannot Be Awarded Against Employer Who Assists Employee In Violating Restrictive Covenant - Conflict Certified

In Bauer v. Dilib, Inc. (4D08-3787), the Fourth District addressed an appeal of whether attorneys fee could be awarded against an employer who assists an employee in breaching a restrictive covenant.  The Fourth District held they cannot and certified conflict with Sun Group Enterprises, Inc. v. DeWitte, 890 So. 2d 410 (Fla. 5th DCA 2004).  The court stated:

whether an employer who has a restrictive covenant with employees can recover its attorney’s fees from a third party who knowingly aids and abets the employees’ violation of the restrictive covenant. We hold that the employer cannot recover its attorney’s fees from the third party in that situation.

The plaintiff below and two employees entered into confidentiality agreements containing a restrictive covenant stating that, for two years after the employees’ last date of employment, they would not compete with the plaintiff’s business. The employees later left the plaintiff’s business. Within a few months, the plaintiff’s owner received a phone call from a competitor, Denise Bauer, asking whether a non-compete agreement bound one of the employees. The plaintiff’s owner allegedly told Bauer that the employee was bound, although Bauer claimed that the owner refused to respond. In any event, Bauer hired the employees.

The trial court entered an order awarding attorneys fees to the plaintiff and against the defendants - both the former employee and the former employee's new employer.

We hold that the plaintiff was not entitled to recover its attorney’s fees from Bauer. To the extent the circuit court awarded attorney’s fees as a matter of equity, the court erred. “Attorney’s fees cannot be awarded as a matter of equity.”...“The fundamental rule in Florida is that attorneys’ fees are in derogation of the common law and will only be granted pursuant to a contractual agreement or statutory authority.”

***

To the extent the plaintiff sought to recover its attorney’s fees under section 542.335(1)(k), no such statutory authority exists against a third party like Bauer...“A court shall not enforce a restrictive covenant unless it is set forth in a writing signed by the person against whom enforcement is sought.” § 542.335(1)(a), Fla. Stat. (2007) (emphasis added). If a plaintiff cannot enforce a restrictive covenant against a person who did not sign it, then it follows that a plaintiff cannot recover its attorney’s fees from that person either.

***

Even though section 542.335(1)(a) precludes a plaintiff from enforcing a restrictive covenant against a third party, a plaintiff still may enjoin a third party who aids and abets the violation of a restrictive covenant. As we have said in the past, “‘There is no doubt that a court can enjoin others who were not parties to the non-compete agreement’ as long as they ‘receive notice and have an opportunity to be heard.’”

The court then certified conflict with the Fifth District's decision in Sun Group Enterprises, Inc. v. DeWitte, 890 So. 2d 410 (Fla. 5th DCA 2004) as quoted below:

In their briefs, the parties have identified one decision which facially contains a contrary result. In Sun Group Enterprises, Inc. v. DeWitte, 890 So. 2d 410 (Fla. 5th DCA 2004), a plaintiff unsuccessfully sought to enforce a restrictive covenant against defecting employees and their subsequent employer. Id. at 412. The Fifth District granted appellate attorney’s fees under section 542.335(1)(k) to the employees and the subsequent employer, even though the subsequent employer did not sign the restrictive covenant. Id. The Fifth District did not provide any reasoning to support its decision or indicate whether the plaintiff contested the issue. We certify conflict with Sun Group. Reversed as to judgment for attorney’s fees against appellant.

Reservation Of Jurisdiction To Award Prejudgment Interest Questions Certified To The Florida Supreme Court

In Westgate Miami Beach, Ltd. v. Newport Operating Corp. (3D09-264),  the Third District granted a motion for certification of questions of great public importance.  The underlying decision was previously discussed here.  The Second District also recently discussed the issue [see here].  The questions certified by the Third District to the Florida Supreme Court as questions of great public importance are below:

WHERE THERE HAS BEEN AN AGREEMENT ON, OR NO OBJECTION TO, A RESERVATION OF JURISDICTION TO AWARD PREJUDGMENT INTEREST, SHOULD THE RESERVATION BE UPHELD IN ORDER TO PREVENT AN INJUSTICE NOTWITHSTANDING THE RULE IN MCGURN V. SCOTT, 596 So. 2d 1042 (Fla. 1992)?

WHERE A JUDGMENT CONTAINS A RESERVATION OF JURISDICTION TO AWARD PREJUDGMENT INTEREST, SHOULD THE APPEAL OF SUCH A JUDGMENT BE TREATED AS A PREMATURE APPEAL UNDER FLORIDA RULE OF APPELLATE PROCEDURE 9.100(l), OR MUST THE APPEAL BE TREATED AS ACCOMPLISHING A WAIVER OF PREJUDGMENT INTEREST PURSUANT TO MCGURN V. SCOTT, 596 So. 2d 1042 (Fla. 1992)?

WHETHER A TRIAL COURT SHOULD BE ALLOWED TO RESERVE JURISDICTION TO AWARD PREJUDGMENT INTEREST POST-APPEAL AS IT CAN WITH ATTORNEYS’ FEES AND COSTS?