- First, in the interest of pimping those fine institutions for which I will still be paying in 2015. From the Mondale Red Brick Oven: The MN Life. A superstar-to-be in the legal firmament. You think he ain't? And from lovely Northfield, home of Cows, Colleges and Contentmenttm, the Debate Link. Young debater is a student at Carleton who is interested in the law. There's still time, young man. save yourself while you still can.
- Apropo, David's current lead item is Cory Maye, a story I've been watching this week with disgust. In Mississippi, a black man sits on death row for murdering a white cop. We've seen that movie before of course. But this is not the one where the accused is innocent. There is no question he actually shot and killed the officer. However, the details are shocking. Via The Agitator:
Here are the details, culled from various media reports and conversations with a couple of people close to the case:In the interest of fairness, Balko has clarified a few facts in the above quotation, and has spoken with the prosecutor on the case. The prosecutor's thoughts can be found here and here.
Sometime in late 2001, Officer Ron Jones collected a tip from an anonymous informant that Jamie Smith, who lived opposite Maye in a duplex, was selling drugs out of his home. Jones passed the tip to the Pearl River Basin Narcotics Task Force, a regional police agency in charge of carrying out drug raids in four surrounding counties. The task force asked Jones if he'd like to come along on the raid they'd be conducting as the result of his tip. He obliged.
On the night of December 26, the task force donned paramilitary gear, and conducted a drug raid on Smith's house. Unfortunately, they hadn't done their homework. The team didn't realize that the house was a duplex, and that Maye -- who had no relationship with Smith,-- rented out the other side with his girlfirend and 1-year-old daughter.
As the raid on Smith commenced, some officers - including Jones -- went around to what they thought was a side door to Smith's residence, looking for a larger stash of drugs. The door was actually a door to Maye's home. Maye was home alone with his young daughter, and asleep, when one member of the SWAT team broke down the outside door. Jones, who wasn't armed, charged in, and made his way to Maye's bedroom. Because police believed Maye's side of the duplex was still part of Smith's residence, they never announced themselves (Note added on 12/09/05: Police said at trial that they did announce themselves before entering Maye's apartment -- Maye and his attorney say otherwise. I'm inclined to believe Maye, for reasons outlined in this post. However, even if they did, announcing seconds before bursting in just before midnight, isn't much better than not announcing at all. An innocent person on the other end of the raid, particularly if still asleep, has every reason to fear for his life.). Maye, fearing for his life and the safety of his daughter, fired at Jones, hitting him in the abdomen, just below his bulletproof vest. Jones died a short time later.
Maye had no criminal record, and wasn't the target of the search warrant. Police initially concluded they had found no drugs in Maye's side of the duplex. Then, mysteriously, police later announced they'd found "traces" of marijuana and cocaine. I talked to the attorney who represented Maye at trial. She said that to her knowledge, police had found one smoked marijuana cigarette in Maye's apartment. Regardless, since Maye wasn't the subject of the search, whether or not he had misdemeanor amounts of drugs in his possession isn't really relevant. What's relevant is whether or not he reasonably believed his life was in danger. Seems pretty clear to me that that would be a reasonable assumption.
It apparently wasn't so clear to Mississippi's criminal justice system. In January of last year, Maye was convicted of capital murder for the shooting of Officer Jones. He was sentenced to death by lethal injection.
Let's summarize: Cops mistakenly break down the door of a sleeping man, late at night, as part of drug raid. Turns out, the man wasn't named in the warrant, and wasn't a suspect. The man, frigthened for himself and his 18-month old daughter, fires at an intruder who jumps into his bedroom after the door's been kicked in. Turns out that the man, who is black, has killed the white son of the town's police chief. He's later convicted and sentenced to death by a (Pooh: Majority) white jury. The man has no criminal record, and police rather tellingly changed their story about drugs (rather, traces of drugs) in his possession at the time of the raid.
Balko has been all over this with not just regurgitatiton by actual orignial investigation and reportage. Go there and read on. But remember, Jim Crow is dead.
- Moving on, the Vioxx trials had an interesting development this week. The New England Journal of Medicine issued a "Statement of Concern" about a published Vioxx study. Apparently, the study as released ignored three patients from the experiment group. Unsurprisingly, (though perhaps incredibly) those critical of the suits immediately spun the news by claiming that NEJM was in cahoots with the plaintiffs. Because the medical establishment and the plaintiff's bar are such natural allies, you see. See the comments at this Legal Underground post for more. Though it does appear that this might be something of a tempest in a teapot:
I've gone both ways on that question in the last few hours, but now I don't think so. While this story makes Merck look bad, idiotically bad, on closer inspection there isn't as much here as you'd think. The data in question are three heart attacks in the final weeks of the VIGOR trial. But the adverse cardiovascular event data in the paper, as published, didn't reach statistical significance, and they don't seem to reach it with these added in, either. On top of that, these data were submitted to the FDA during the drug's approval process, and (according to Point of Law) are on the Vioxx package insert itself.
So Merck might be guilty of making their data look better for the New England Journal of Medicine, but they're not guilty of hiding it from the world. And I'm not sure about that first charge, either. The lead author on the VIGOR study, Claire Bombadier of Toronto, told Forbes that the paper accurately disclosed the data and the she and the other authors are working on a response to the journal. But the headlines today are going to be variations on the theme of "Merck Hides Data". But as far as I can tell, they should be "Merck Looks Like Gang of Idiots, Blasts Away At Own Foot For Fourteenth Time". But that's not a crime. Yet.
- From the Judicial Activism Goes Both Ways file: Apparently, for purposes of immigration law, an Aggravated Felony is not neccesarily Aggrevated or a Felony. Warning, extreme law-like substance lies beyond hither link.
- Finally, Joe reminds me, once again, that I know nothing about IP law with his analysis of the recent 7th Circuit decision in a KaZaa file-sharing case. Unsurprisingly, the "it was good for them" defense did not work for the copywrite infringer, though Joe does question whether she should have been able to mitigate damages under an "innocent infringer" defense. I'm not sure I agree, but he knows much more than me about this...
Edit: Not 20 minutes after I posted this, I came across this bit. Under our system of liberalized pleading, you can file a motion to do just about anything. On the margins, this leads to such things as "Motion for the Judge to Kiss My Ass." Strangely, the judge in question was not amused.