Monday, March 2, 2015

Child Abuse: Is the child victim's statement to a mandatory reporter "testimonial" for purposes of Crawford?

While the U.S. Supreme Court's consideration this Wednesday of the Affordable Care Act in King v. Burwell, will attract much attention, another case scheduled for Monday -- Ohio v. Clark -- bears watching. Clark involves the question whether a young child abuse victim's statements to his teacher is "testimonial" under Crawford, where the teacher is a mandatory reporter under state law. It's a troubling case, because the three-and-a-half year-old child was deemed incompetent to testify at trial and the most significant evidence identifying the abuser is the child's answer to the teacher's questions. The state appellate courts in Ohio deemed the statement inadmissible under the Crawford line of cases, and SCOTUS granted cert. to examine that decision.

Thursday, November 6, 2014


The Supreme Court of Rhode Island has reiterated -- for about the hundredth time -- that a notice of appeal must be filed within twenty days of entry of the judgment or order appealed from, and that a motion to reconsider does NOT toll that time period. City National Bank v. Main & West LLC. The case involved a judgment creditor's unsuccessful effort to get an execution on its judgment. The appeal was untimely in a number of ways, and SCORI disposed of it in conference without argument. In a two-page order, the Court reminded that "motions to reconsider do not serve as a substitute for a party's failure to file a timely appeal."

Tuesday, October 14, 2014

Big Changes Coming to Non-dispositive Motion Calendar in Providence.

Judge Richard Litch will institute some major changes to the Providence Superior Court Non-dispositive Motion Calendar, effective November 12. Non-dispositive motions are heard in Providence every Wednesday. Judge Licht's Order eliminates the general 9:30 Wednesday calendar call and requires counsel to email the clerk ( by midnight Monday with some specific information regarding the motion and its nature. Formal matters will still be called at 9:30, medical subpoena matters at 10:45, ready matters at 11:00, and all discovery motions will be heard at 2:00 pm. Judge Licht has been testing some of these procedures since taking over the Motion Calendar in September, but they will now be fully implemented. h/t to Attorney Matt Jerzyk for spreading the word on Judge Licht's innovation.

Sunday, October 5, 2014

Red Mass at the Cathedral on Wed. Oct. 8 at 5:00 pm.

The Rhode Island legal community will participate in the Annual Red Mass, marking the opening of the judicial year, on Wed. Oct. 8 at 5:00 pm at the Cathedral of Saints Peter and Paul in Providence.

SCOTUS 2014 Term opens with a question of . . . . brake lights.

The United States Supreme Court will open its new term with a case that turns on whether a North Carolina police officer's erroneous application of the "defective brake light" statute could be the basis of a lawful arrest. In Heien v. North Carolina the defendant was driving a vehicle with only one operational brake light. Because the other brake light was not working, the police stopped the defendant's vehicle. During the course of the stop the police asked and obtained consent to search the vehicle, resulting in the discovery of cocaine. Defendant was charged with drug trafficking, and he moved to suppress the fruits of the search, claiming that the original stop had been unlawful. An intermediate appellate court in North Carolina accepted the argument, concluding that the applicable statute only required one working brake light, which defendant's vehicle had. Because there was no violation, the court reasoned, the stop itself was unlawful and all of its fruits were inadmissible. The North Carolina Supreme Court reversed holding that, notwithstanding the police officer's possible misapplication of the brake light statute, the stop itself was objectively reasonable based on the officer's reasonable understanding of the statute. The U.S. Supreme Court granted cert. and will hear arguments in the case on Monday October 6. Given the trend in recent Fourth Amendment Exclusionary Rule cases, this one seems likely to go the government's way.

Tuesday, September 9, 2014

Superior Court rules for E.P. City Councillor Joseph Larisa, overturning Ethics Commission

Superior Court Associate Justice Susan McGuirl has issued a decision, reversing the Ethics Commission's finding against former East Providence City Councillor Joseph Larisa. The Commission had found a violation of the Ethics Code because Larisa, while still serving on the City Council, had appeared on behalf of a client before the East Providence Probate Court. Larisa filed an administrative appeal to the Superior Court. Judge McGuirl reviewed the convoluted set of regulations upon which the Commission relied and concluded that there was no knowing and willful violation. It should be noted that Larisa appeared in the Probate Court pro bono. Judge McGuirl's decision was released on September 4, and the Ethics Commission has the right to seek review SCORI by way of a petition for certiorari.

My interview on Sean Herriott's Podcast, "Faith as a Second Language"

Sean Herriott interviewed me for today's edition of his podcast Faith as a Second Language. The topic was the certiorari petition filed by the Diocese of Baton Rouge, seeking review of a Louisiana Supreme Court ruling that required a local priest to break the sacramental seal of the confessional.