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Archive for November, 2009

Bell v. Norris, No. 07-3432.

In December 1992, Albert Bell, a sixteen-year-old, and his accomplice, Terry Sims, robbed a grocery story. Bell served as a decoy to distract a store employee who Sims subsequently shot and killed. A second store employee began screaming, and Sims shot and killed the employee while Bell took money from a cash register. After the robbery and murders, the two left the store, discarded the murder weapon, and drove to a friend’s home.

Police initially considered Bell a potential witness and interviewed him, with his mother present, on January 5, 1993. Officers did not give Bell Miranda warnings, and he denied any involvement in the robbery or murders, denied having been with Sims on the night of the murders, and made no inculpatory statements. After the first interview, police interviewed another witness who contradicted Bell’s claim that he had not been with Sims on the night in question.

The second interview occurred on January 8, 1993, and officers isolated Bell in an interrogation room, read him Miranda warnings, obtained verbal confirmation that he understood each of his Miranda rights, and had him sign a written form waiving his rights. Bell placed his initials after each warning on the waiver form and signed the bottom of the form. During the second interview, Bell confessed to his involvement in the crimes and drew police a map of where to find the murder weapon.

Bell was tried as an adult and convicted of two counts of felony murder. He is currently serving two consecutive life sentences. His case has undergone multiple state appeals, and Bell eventually filed a habeas corpus petition in federal court, seeking relief based on several issues, which the trial court denied. Bell then filed an appeal with the Eighth Circuit Court of Appeals, which the court granted regarding Bell’s claim that the state court erred in concluding that he knowingly and intelligently waived his Miranda rights before making statements to police.

The Eighth Circuit noted that the Supreme Court of the United States has adopted a totality-of-the-circumstances test for determining whether a person has knowingly and intelligently waived his Miranda rights:

First, the relinquishment of the right must have been voluntary in the sense that it was the product of a free and deliberate choice rather than intimidation, coercion, or deception. Second, the waiver must have been made with a full awareness of both the nature of the right being abandoned and the consequences of the decision to abandon it.

Under the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), the court was required the follow the state court’s findings of fact unless those findings were unreasonable. Because Bell was a reasonably intelligent sixteen-year-old, had prior exposure to the juvenile justice system, expressed that he understood the words of the Miranda warnings, and waived his rights verbally and in writing, the court held that Bell had presented insufficient evidence to overcome the presumption of correctness of the state trial court’s factual findings. The court affirmed the decision of the trial court.

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Rapper Jayceon “The Game” Taylor was at a mall in Greensboro, North Carolina, when security guards told one of his entourage to stop filming without permission. He refused. The security guards called police. The Game refused to leave, and a crowd gathered to support him. The police dispersed the crowd with pepper spray and arrested The Game for disorderly conduct, trespass, and communicating threats. The Game produced a video of the incident, with footage of what they described as “The Game being wrongfully arrested and brutalized by the Police in North Carolina.” The footage appeared on YouTube, and an ad for the video appeared on stopsnitchinstoplyin.com. The police officers sued The Game for slander and libel based on the DVD ad and his post-bail statement to the press:

They really kicked our (censored) … I gotta bring up a case against the Guilford Police Department. I gotta do it, man. It’s unfair. Their behavior’s unfair.

The trial court dismissed some of the officers’ slander and libel claims. The officers appeal, but it was dismissed because there was no final order. The officers argued that the trial court’s order should be reviewed immediately because it might lead to inconsistent verdicts. The court was unconvinced, noting that the officers had failed to show that they would be prejudiced by the possibility of inconsistent verdicts in the two separate proceedings.

For the full story, click here.

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Jones v. Turner, No. 08-1438.

In this collection action, Guy Jones filed a complaint in the Faulkner County Circuit Court against J. Eric Turner and Carco of Arkansas, Inc. (“Carco”), on March 31, 2008. Turner and Carco filed a motion to dismiss, arguing that, while the complaint filed in the Faulkner County Circuit Court had been signed as required by Rule 11 of the Arkansas Rules of Civil Procedure, the copy of the complaint served on them was unsigned. Under this reasoning, service of process under Rule 4 of the Arkansas Rules of Civil Procedure was defective. Jones responded that Rule 11 required only that the complaint that filed be signed and that copies be provided to Turner and Carco. The trial court agreed that service of an unsigned copy was not proper service and dismissed the complaint.

On appeal, the Arkansas Supreme Court noted that, while Rule 4 required a summons served upon a defendant to be signed by the clerk, the rule contained no such requirement concerning the complaint. The court, therefore, refused to impose a signature requirement into Rule 4 when no such requirement could be found in the rule. Accordingly, the court reversed and remanded the case back to the trial court.

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According to its borrowers’ class action complaint, Countrywide Financial Corp. (“Countrywide”) forces buyers who put less than 20% down on their homes to buy private mortgage insurance (“PMI”) through one of six providers chosen by Countrywide. The providers then allegedly requested Countrywide to “reinsure” the policies with Countrywide affiliate Balboa Reinsurance Co. (“Balboa”) under a “captive reinsurance arrangement.” This scheme allowed Countrywide to collect a portion of the PMI premium, which was essentially a kickback for the referrals. According to the borrowers, Balboa has collected more than $892 million in reinsurance premiums since 1999 and paid nothing toward insurance claims. The borrowers said the sham reinsurance led to higher premiums, but Countrywide alleged that the monthly premiums are set by the Pennsylvania Insurance Department and that providers cannot raise them. The borrowers countered that even if their rates did not change, Countrywide’s and Balboa’s actions still violated the antitrust protections of the Real Estate Settlement Procedures Act (“RESPA”).

The trial court dismissed the class action complaint for lack of standing. On appeal, the Third Circuit Court of Appeals reversed that decision. The court concluded that, under section 8 of RESPA, Congress created a private right of action that did not require an overcharge allegation. For the full story, click here.

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