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Mass. state senator charged with groping woman
Law Center | 2008/07/31 04:34
A court clerk-magistrate on Wednesday charged a state lawmaker with groping a woman in a case the district attorney declined to prosecute because it lacked evidence.

The criminal complaint charges state Sen. James Marzilli with two counts of indecent assault and battery alleging he groped a woman after an arts fundraiser April 6.

The charges were issued by Cambridge District Court Clerk-Magistrate Robert Moscow after the accuser made a citizen's request for criminal charges, a rarely used step allowed under state law. Her attorney, Wendy Murphy, said the woman swore under oath that her statement was true.

Clerk-magistrates have to find probable cause to believe a crime occurred, a lower standard than proof than beyond a reasonable doubt, the standard prosecutors must use during a trial. After the arraignment, the district attorney still can decide to dismiss the charges.

In a separate case, Middlesex District Attorney Gerry Leone is prosecuting Marzilli for allegedly sexually harassing four women in a single day in Lowell in June. He pleaded not guilty to those charges. His lawyer later said he has been diagnosed with bipolar disorder, and Marzilli has said he won't seek re-election.

In this case, Leone has said there wasn't enough evidence to prove the woman's claim. A spokesman, Corey Welford, said Leone plans to review a transcript of Wednesday's hearing to determine whether any new evidence was disclosed. If not, the case would not move forward.

Neither Marzilli, 50, nor his lawyer, Terrence Kennedy, attended the hearing. Kennedy said he believed the charges eventually would be dropped.



Iowa case raises question: Is stripping an art?
Law Center | 2008/07/28 05:39

Iowa doesn't have any all-nude strip clubs — but it does have performing arts centers where women dance naked.

However, the loophole in the state's public indecent exposure law that allows nude dancing at "art centers" is under attack in the small community of Hamburg, a town of 1,200 just across the Missouri River from Nebraska.

The case pending before a Fremont County judge effects only one business in Hamburg, but if he agrees with the prosecutor, it could eventually threaten the legal standing of nude dancing clubs across the state.

District Judge Timothy O'Grady heard arguments in a one-day trial on July 17 and took the case under advisement.

It all began on July 21, 2007, when a 17-year-old niece of Sheriff Steven MacDonald climbed up on stage at Shotgun Geniez in Hamburg and stripped off her clothing. Owner Clarence Judy was charged with violating Iowa's public indecent exposure law.

Judy responded that the law doesn't apply to a "theater, concert hall, art center, museum, or similar establishments" devoted to the arts or theatrical performances.

"Dance has been considered one of the arts, as is sculpture, painting and anything else like that. What Clarence has is a club where people can come and perform," said his lawyer, Michael Murphy.

Murphy noted that the club has a gallery selling collectible posters and other art, and it provides patrons with sketch pads.



Smith & Wesson revolver to mark legal win
Law Center | 2008/07/22 09:07

Smith & Wesson thinks the Supreme Court’s recent Second Amendment ruling is a legal victory worth notching on a gun. The Springfield firearms manufacturer said yesterday it will make an engraved version of its Model 442 revolver to commemorate the historic June 26 high court decision striking down the District of Columbia’s strict handgun ban. Smith & Wesson Holding Corp. said it will give a gun to each of the six plaintiffs in the case, including lead plaintiff Dick Heller, an armed security guard and hero to gun-rights advocates across the country. Heller couldn’t be reached yesterday.

Gun dealers will start selling the revolver this fall, with some profits going to the Second Amendment Foundation, a pro-gun legal-action group that is teaming with Smith & Wesson on the project.

“I think it’s a phenomenal idea. It’s going to be a collector’s item for sure,” said Jim Wallace, executive director of the Northboro-based Gun Owners’ Action League of Massachusetts. “I wouldn’t mind having it in my collection.”

Some see the special pistol as a shrewd move by Smith & Wesson to target gun enthusiasts, especially those who may still be sore about the company’s 2000 adoption of gun-safety measures to settle a federal lawsuit. That controversial capitulation sparked a National Rifle Association boycott.

“This commemorative gun, although seemingly tasteful, is clearly playing to the extreme gun-rights audience,” said John Rosenthal, the founder of Stop Handgun Violence Inc., a nonprofit group known for its gun-control billboard on the Massachusetts Turnpike near Fenway Park. “It’s less than an honorable move.”

The Model 442 revolver has a suggested retail price of $561 but the commemorative version would presumably cost more.

Tom Taylor, Smith & Wesson’s vice president of marketing, did not return calls for comment.

Last month’s 5-4 ruling was the Supreme Court’s first conclusive interpretation of the Second Amendment since it was ratified in 1791, according to constitutional scholars. The decision affirmed the right to keep guns in self-defense in the home but at the same time was not expected to affect existing federal gun restrictions.



Court tosses FCC 'wardrobe malfunction' fine
Law Center | 2008/07/21 08:47
A federal appeals court on Monday threw out a $550,000 indecency fine against CBS Corp. for the 2004 Super Bowl halftime show that ended with Janet Jackson's breast-baring "wardrobe malfunction."

The three-judge panel of the 3rd U.S. Circuit Court of Appeals ruled that the Federal Communications Commission "acted arbitrarily and capriciously" in issuing the fine for the fleeting image of nudity.

The 90 million people watching the Super Bowl, many of them children, heard Justin Timberlake sing, "Gonna have you naked by the end of this song," as he reached for Jackson's bustier.

The court found that the FCC deviated from its nearly 30-year practice of fining indecent broadcast programming only when it was so "pervasive as to amount to 'shock treatment' for the audience."

"Like any agency, the FCC may change its policies without judicial second-guessing," the court said. "But it cannot change a well-established course of action without supplying notice of and a reasoned explanation for its policy departure."

The 3rd Circuit judges — Chief Judge Anthony J. Scirica, Judge Marjorie O. Rendell and Judge Julio M. Fuentes — also ruled that the FCC deviated from its long-held approach of applying identical standards to words and images when reviewing complaints of indecency.



Court denies Gatlin's appeal on Olympic trials
Law Center | 2008/06/27 08:00
Justin Gatlin's pursuit of Olympic gold in Beijing is really over now. His fight against the powers that banned him from the games — well, that will be more like a marathon than a sprint.

The defending Olympic 100-meter champion lost his appeal Thursday to run in the U.S. Olympic track trials and said he will not take the case to the Supreme Court, meaning there are no more back doors or last-second maneuvers that could land him in China in six weeks.

But he will continue to seek monetary and other damages from the U.S. Olympic Committee, the U.S. Anti-Doping Agency and other defendants, saying they discriminated against him because his first doping violation, in 2001, was for taking prescribed medication to treat attention deficit disorder.

Because that penalty was on the books, his second violation in 2006 triggered the suspension that has barred him from Beijing.

Earlier this month, the Court of Arbitration for Sport upheld that ban.

In the lawsuit, Gatlin said banning him from Olympic trials violated his rights under the Americans with Disabilities Act. Gatlin claims he has never intentionally doped.



High court rules for workers in age bias suit
Law Center | 2008/06/19 09:24
The Supreme Court made it easier Thursday for employees to prove they have suffered discrimination because of their age.

In a 7-1 ruling, the court said that when older workers are disproportionately affected by an employment decision, the employer bears the burden of explaining whether there was a reasonable explanation other than age for the company's action.

The case involves workers over 40 who challenged their dismissals from jobs at the Knolls Atomic Power Laboratory in upstate New York.

Thirty of the 31 workers laid off by the lab in 1996 were over 40. Twenty-six of those employees sued Knolls claiming that the layoffs violated the federal Age Discrimination in Employment Act.

Justice David Souter acknowledged, in his majority opinion, that the decision "makes it harder and costlier to defend" age discrimination lawsuits. But Souter said, "We have to read it the way Congress wrote it."



Gun rights is biggest issue for court to decide
Law Center | 2008/06/16 09:06
One momentous case down, another equally historic decision to go. The Supreme Court returns to the bench Monday with 17 cases still unresolved, including its first-ever comprehensive look at the Second Amendment's right to bear arms.

The guns case — including Washington, D.C.'s ban on handguns — is widely expected to be a victory for supporters of gun rights. Top officials of a national gun control organization said this week that they expect the handgun ban to be struck down, but they are hopeful other gun regulations will survive.

Last week, the court delivered the biggest opinion of the term to date with its ruling, sharply contested by the dissenting justices, that guarantees some constitutional rights to foreign terrorism detainees at Guantanamo Bay, Cuba. The 5-4 decision, which Justice Anthony Kennedy wrote for his four more liberal colleagues, was the first case this term that broke along ideological lines.

The conservative-liberal split was seen frequently last term, including in cases that limited abortion rights, reined in voluntary school desegregation plans, made it harder to sue for pay discrimination and prodded the Bush administration to combat global warming by regulating tailpipe emissions. Kennedy was the only justice in the majority in all those cases, siding with conservatives in all but the global-warming dispute.

It's hardly unusual that the cases that take until late spring to resolve are the most contentious and most likely to produce narrow majorities.

The dispute over gun rights poses several important questions. Although the Second Amendment was ratified in 1791, the court has never definitively said what it means to have a right to keep and bear arms. The justices also could indicate whether, even with a strong statement in support of gun rights, Washington's handgun ban and other gun control laws can be upheld.

Officials at the Brady Campaign to Prevent Gun Violence said recently that they expect Washington's 32-year-old handgun ban to fall but believe that background checks, limits on large-volume gun sales and prohibitions on certain categories of weapons can survive.

In addition to the guns case, the justices are still weighing whether Exxon Mobil Corp. has to pay a $2.5 billion punitive damages judgment over the Exxon Valdez disaster in Alaska in 1989 and whether people convicted of raping children may be executed.

Exxon has been fighting an Alaska jury's verdict for 14 years, contending that the $3.5 billion it already has spent following the worst oil spill in U.S. history is enough. The jury initially awarded $5 billion to 33,000 commercial fishermen, Native Alaskans, landowners, businesses and local governments, but a federal appeals court cut the verdict in half.

Some justices appeared, based on their comments when the case was argued in February, to favor cutting the judgment further. Justice Samuel Alito is sitting out the case because he owns $100,000 to $250,000 in Exxon stock.

Also awaiting a decision is the case of a man sentenced to death in Louisiana after he was convicted of raping his 8-year-old stepdaughter. Only five states — Montana, Oklahoma, South Carolina and Texas are the others — allow executions for the rape of a child, but only Louisiana has imposed death sentences on people convicted of the crime.

The Supreme Court banned executions for rape in 1977 in a case in which the victim was an adult woman. The last executions for rape or any other crime that did not include a victim's death were in 1964.

Retirements typically are announced at the end of the term, although it would be a huge surprise if anyone decided to retire this year with a presidential election looming and little prospect of a nominee being confirmed before then.

Five justices, though, will be at least 70 by the time the court reconvenes in October. Justice John Paul Stevens is 88, Justice Ruth Bader Ginsburg is 75, Justice Antonin Scalia is 72, Kennedy will turn 72 in July and Justice Stephen Breyer will celebrate his 70th birthday in August.



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