News update -- Utah anti-sodomy and anti-fornication laws

The Utah Court of Appeals has just published its opinion in Berg v. State, affirming the district court's determination that a Utah County man did not have standing to challenge the constitutionality of Utah's laws against sodomy and fornication, even though the man claims he fears prosecution because he has engaged in consensual, heterosexual acts.

Low grade for appeals nominee

The Washington Post published an article (free registration required) this morning that begins:

The American Bar Association yesterday gave President Bush's choice for a seat on the U.S. Court of Appeals for the District of Columbia the lowest possible passing grade for judicial nominees, and sources said a Republican Senate chairman was expected to schedule a hearing next week on his nomination.

Thomas B. Griffith, who failed to obtain a law license in Utah or keep a current license in the District during parts of the past six years, received a slight majority from his peers after an unusually long, three-month investigation. Under the ABA's system, that means at least eight of the 15 members on the review panel rated him "qualified" for a seat on the court, and at least six rated him "not qualified."

The story goes on to say that Utah Senator Orrin Hatch, chairman of the Senate Judiciary Committee, is expected to announce today that a confirmation hearing will be scheduled for Oct. 7.

The ABA ratings are accessible here.

Law clerks breach confidentiality

I have to agree with the law clerks who are condemning the breach of confidentiality by several Supreme Court clerks who commented on Bush v. Gore in Vanity Fair. At the same time, as a journalist, I generally prefer as much access to and disclosure of information as possible.

Blogs make NY Times

The New York Times published a very interesting (and very long) story about blogs in its Magazine yesterday. Among the tidbits: 2 million Americans (including me) have their own blogs, and most of them are not read by anyone but their authors.

Wanna be a judge? Apply here

If you ever thought you wanted to don the robes and sit on the bench, here's your chance. The Third District Court is seeking applicants for judge.

First Ute at U. law school

The Salt Lake Tribune profiled David Cuch, whose family says he is the first Ute ever to attend the S. J. Quinney College of Law at the University of Utah.

Nine types of clerkships

In honor of law clerk interviewing week by federal judges across the country, the Harvard Law Record published a column outlining nine types of clerkships: perkship, jerkship and workship are the first three, and that gives you an idea of the type of humor in this well-written column by Harvard 3L Jeremy Blachman.

Court opinion on 'material support' to terrorists

The United States Court of Appeals for the Third Circuit published a very interesting precedential opinion yesterday on the question of whether providing food and setting up tents for members of terrorist organizations constitutes providing "material support" to those engaged in terrorist activities. The court concluded that it does, and thus the court affirmed the Board of Immigration Appeals' determination that a man named Charangeet Singh-Kaur was ineligible for adjustment of status.

Ambush interview or just tough questions? You decide

I heard live the now-infamous interchange yesterday on KUER-FM between host Doug Fabrizio and Salt Lake County Mayor Nancy Workman. Both the Deseret Morning News (here) and The Salt Lake Tribune (here) covered the story of how Workman walked out of the studio after Fabrizio questioned her statement that the panel recommending that she be charged with two felonies was not unbiased. One of the panel members was Utah County Attorney Kay Bryson, who, like Workman, is a Republican. You can decide whether Fabrizio's questions were tough but fair, or whether he unfairly ambushed Workman, by listening to the interchange here.

Bloggers watching the watchdogs

Deseret Morning News columnist Lee Benson began this morning's column, "Bloggers put bite on Rather," this way:

I don't know about you, but to me the fascinating part about this week's fall from grace by CBS News and longtime news anchor Dan Rather is realizing that the watchdog has a watchdog.

If journalism is the fourth estate (after the judicial, executive and legislative estates), you can now add another wing to the mansion — the domain of the bloggers, those diarists who post their journals on the Internet for public consumption.

Most competitive law schools

I'm not surprised that BYU's J. Reuben Clark Law School is the third-most competitive law school in the country. I experienced it first hand. The rankings appeared in the Princeton Review and were covered by the Deseret Morning News in "BYU law school gets raves."

CBS News backpedals

In "CBS News Admits It Was Misled by Ex-Officer on Bush Documents," The New York Times covers a very interesting breaking story, one that I had the opportunity to comment on as a guest on today's Doug Wright Show on KSL Radio (1160 AM) in Salt Lake City.

News media and law

If you haven't become convinced already that news media and law have a great deal of overlap, check out today's Salt Lake Tribune. The only two figures convicted in connection with the Olympic bid scandal of a few years ago were sentenced in federal district court in Salt Lake City yesterday. An Orem man was sentenced to 15 years to life in prison for kidnaping a kindergarten boy. Salt Lake County Mayor Nancy Workman moved to dismiss felony misuse of public funds charges. A 12-year-old boy testified against his father and stepmother in a child abuse case. A Utah corrections officer was arrested for investigation of rape. A class action lawsuit was filed regarding Utah state courts' handling of search warrants. And Ogden police are searching for a man who marries women to steal their money.

With all those legal stories, you would think every journalist would be required to have a law degree.

Mark Hacking and 'Son of Sam'

The Salt Lake Tribune reported today that "Mark Hacking intends to pen book 'about everything'." Hacking is charged with slaying his wife, Lori Hacking.

What the story does not mention is that Utah, like many states, has a "Son of Sam" law that would prevent Hacking, if convicted, from profiting from the sale of a book about the crime. There is a loophole, however, because the statute applies only after conviction; thus, if Hacking were to publish a book during the trial and before conviction, perhaps he could avoid application of the law. (The Trib story states that Hacking would donate the proceeds to a memorial scholarship fund in Lori Hacking's name).

Here is the text of the Utah statute in question:

(1) At the time of sentence, the court may order the defendant to be prohibited from directly or indirectly engaging in any profit or benefit generating activity relating to the publication of facts or circumstances pertaining to the defendant's involvement in the criminal act for which the defendant is convicted.
(2) The court's order may prohibit the defendant from contracting with any person, firm, corporation, partnership, association, or other legal entity with respect to the commission and reenactment of the defendant's criminal conduct, by way of a movie, book, magazine article, tape recording, phonograph record, radio, or television presentations, live entertainment of any kind, or from the expression of the defendant's thoughts, feelings, opinions, or emotions regarding the criminal conduct.
(3) The court may order that the prohibition includes any event undertaken and experienced by the defendant while avoiding apprehension from the authorities or while facing criminal charges.

Utah Code Ann. 77-18-8.3

D-News: Confirmation not likely

The Deseret Morning News asserted this morning that BYU general counsel Tom Griffith is not likely to be confirmed by the Senate to the U.S. Court of Appeals for the D.C. Circuit. With the election approaching, time is quickly running out, although Utah Senator Orrin Hatch thinks there's still a chance for confirmation. If not, Griffith would have to be re-nominated by whomever is elected president.

The News story perpetuates an error throughout by calling the nominee Thomas Griffiths. Actually, there is a Thomas Griffiths on campus, and he recently received a broadcast educator award. But Thomas Griffith is the lawyer.

Access to court records

Utah's Committee on Privacy and Public Court Records has balked at allowing journalists and others to access in database form the same information publicly available in individual form. The Salt Lake Tribune reports: "Court records panel suggests privacy protections." The committee's draft report, including recommendations for changes to court record classifications, may be accessed here.

Hatch: There is no Thurmond Rule

Utah Sen. Orrin Hatch today disputed the existence of a rule that would prevent hearings on judicial nominees during the run-up to a presidential election. Hatch told The Salt Lake Tribune: "There is no Thurmond Rule, that's just [Vermont Democratic Senator Patrick] Leahy popping off."

The Trib story says a confirmation hearing has been scheduled for D.C. Circuit nominee Thomas Griffith, BYU's general counsel. No date, however, has been given.

Santa Claus banned or not?

The Deseret Morning News is reporting that Salt Lake City has decided to remove an exemption that allowed low-flying reindeer to enter the city's airspace on Christmas Eve. The Salt Lake Tribune, however, reported that while removal of the exemption was considered, it was ultimately shot down -- meaning Santa can still deliver the goods.

Criminal defense via media

Salt Lake County Mayor Nancy Workman, who is currently on administrative leave because she was charged with two felony counts of misusing public funds, has launched a defense effort via television ads. The Salt Lake Tribune reports: "Workman starts media campaign." Interestingly, Workman is campaigning for re-election even though she cannot currently fulfill her duties because she was placed on leave by the all-male Salt Lake County Council. All references to Workman have apparently been removed from the Salt Lake County website, and the only mention of the "Office of the Mayor" is located here.

Meanwhile, the Deseret Morning News turned to a tried and true formula for analyzing legal news when there's really nothing to report: interview the law professors.

BYU athletics

Both The Salt Lake Tribune and Deseret Morning News spent significant resources today in covering BYU's decision not to renew the contracts of its men's and women's athletic directors. The Trib wrote: "ADs fired; programs set to be consolidated." Meanwhile, the front page, above-the-fold headline in the News blared: "BYU athletic directors fired."

Not surprisingly, both newspapers made attempts to link the changes to the recent troubles of BYU football players with the Honor Code. That's a stretch, though, because the internal study that led to the changes has been in the works for some time and did not stem from allegations of sexual misconduct by football players.

The BYU press release about the changes is available here.

The News story contained a jab from former men's athletic director Val Hale at journalists:

"If I can't find a job that is reputable, I can always go back to work in the media," Hale said, poking fun at his situation and work 25 years ago as a newspaper reporter.

Hale is a classy and talented individual, and there's no doubt he will land on his feet.

NASA boondoggle

The New York Times is reporting: "Space Capsule Crashes in Utah." It appears that a $260 million mission (to capture solar wind and the matter it carries) may have crashed and burned along with the capsule, which had a faulty parachute. Thus, the Hollywood stuntmen who were to catch the probe with hooks from their perch in helicopters were unable to perform the job for which they had trained for five years.

The crash took place in Utah's Dugway Proving Ground.

Suspended or not?

The Salt Lake Tribune and Deseret Morning News are engaged in a war of words over whether BYU football coach Gary Crowton suspended three freshmen players before Saturday's 20-17 victory over Notre Dame. The Tribune reported that they were suspended. The News, relying on a statement from Crowton, reported that they were not.

Ham sandwiches

Do you ever get the feeling that Salt Lake Tribune columnist Gordon Monson likes to eat ham sandwiches while watching football on television? In today's column about the University of Utah's victory over Texas A&M last night, Monson mentions ham sandwiches again, for what must be at least the third time in his columns in recent years. All I have to say is this: I prefer roast beef.

Breaking news -- Utah v. Thomas A. Green

The Utah Supreme Court has just filed an opinion affirming polygamist Tom Green's bigamy conviction. Green, who has been married to nine women and fathered 25 children and who is now serving time in the Utah State Prison, challenged Utah's bigamy statute as a violation of the free exercise clause of the First Amendment to the United States Constitution.

In his appellate brief before the Utah Supreme Court, Green brought up 39 issues. Bringing more than three issues to an appellate court is rarely a good idea because it signals that you do not believe any of your issues, standing alone, justifies an appellate decision in your favor.

The bigamy statute upheld by the Utah Supreme Court today reads:

A person is guilty of bigamy when, knowing he has a husband or wife or knowing the other person has a husband or wife, the person purports to marry another person or cohabits with another person.

Utah Code Ann. § 76-7-101(1) (2003).

In today's decision, the court held that Utah's bigamy statute does not target bigamists whose bigamy is based on their religious beliefs and practices but rather affects all bigamists (religious or not) the same.

Unfortunately for Green, he failed to preserve his arguments based on free association (although they were briefed by amici) and, thus, the court declined to address those issues.

Justice Christine Durham, who took the liberty to cite to her own law review article, concurred in the opinion but expressed her belief that Green may have been entrapped by the state of Utah into committing bigamy when he had taken careful steps not to do so.

Reading book reviews after books

Typically, I read book reviews to determine whether I will read the books themselves. Recently, however, I came upon a book review by Judge Richard Posner of the U.S. Court of Appeals for the Seventh Circuit that reversed this process. I read Judge Posner review of Bruce Allen Murphy's book, Wild Bill: The Legend and Life of William O. Douglas, after I had savored all 688 pages of the book itself. I enjoyed the book very much, and I found Judge Posner's review to be generally on target with my own impressions.

One thing I would have liked, however, was to hear more about Judge Posner's own impressions of and interactions with Justice Douglas and his law clerks during the time Judge Posner was a Supreme Court law clerk.

Kobe Bryant

The story, "Prosecutors Drop Kobe Bryant Rape Case," in today's New York Times, brings up some interesting issues. The story quotes a law professor who complained about prosecutor Mark Hurlbert's continued use of the word "victim" in a press conference yesterday. The professor said Hurlbert was "quasi-announcing that Kobe Bryant is a rapist and that's the way it is." Should prosecutors be zealous advocates for conviction, even in the face of weak facts? Should they cast themselves in the role of quasi-judges, making judgment calls about when a victim's story does not justify bringing charges?

Another interesting point about the coverage of the Bryant dismissal in the last two days: I would venture to say that many journalists can hardly hide their glee that the charge against Bryant has been dropped.

Tooth-in-soup suit dismissed

The lawsuit of a West Jordan, Utah, woman who found a human tooth in her can of Campbell's soup has been dismissed by a state district judge. The Deseret Morning News reported "Judge dismisses tooth suit." Apparently, the judge determined that losing 30 pounds as a result of the discovery did not constitute "bodily harm or illness." In some quarters, losing 30 pounds will cost you thousands of dollars. In this case, Campbell's compensated the woman with $10.