In 2014, a storage facility owned and operated by Freedom Industries was discovered to have leaked numerous toxic chemicals into the Elk River. The leak greatly affected individuals in the area surrounding the Elk River, since it infiltrated water processing plants and resulted in thousands of West Virginia residents having to boil or purchase water until the leak could be addressed. As a result of the leak and the negative publicity that surrounded it, Freedom Industries was forced into Chapter 11 bankruptcy. As part of the bankruptcy resolution, Freedom Industries retained the right to any claims it had against other parties resulting from the chemical leak. In 2016, Freedom brought claims, including negligence and product liability, against Eastman Chemical Company, which manufactured and sold the chemicals stored at Freedom Industries’ storage facility. Freedom alleged that Eastman knew that the chemicals it produced were hazardous and had the ability to corrode through steel, making them predisposed to leaks. Freedom further argued that Eastman failed to share these facts with Freedom, Freedom stored Eastman’s chemicals in steel tanks, and this contributed to the ultimate chemical leak.
Under the federal sentencing guidelines, certain crimes are subject to mandatory periods of imprisonment. Under Section 924(c), whenever a defendant commits a crime of violence that involves the use of a firearm, the defendant must, at the least, be subjected to a consecutive mandatory sentence of at least 10 years in prison. Determining what constitutes a crime of violence under this section has been a subject of much debate. In a recent case before the Fourth Circuit Court of Appeals, the court evaluated whether the crime of carjacking can be a crime of violence.
As with other governmental entities, the Navy and the Army, as arms of the federal government, are entitled to sovereign immunity from lawsuits. Under the Federal Tort Claims Act (FTCA), they have waived sovereign immunity for actions that are conducted pursuant to statute or policy but not for those actions that are inherently discretionary. This is known as the discretionary function exception. While discretionary functions often arise when employees make certain decisions or undertake certain actions, courts have disagreed about whether the maintenance of premises can be considered discretionary. A recent Fourth Circuit case extends the discretionary function exception to apply to premises liability lawsuits.
Generally, when a criminal defendant receives a jail sentence, that sentence cannot be modified unless the conviction is changed or overturned. This rule promotes finality in the justice system and allows for more certainty among defendants, prosecutors, and victims. Congress has provided one exception to this rule. When a defendant is sentenced to a certain amount of time in prison, based on the sentencing guidelines at the time, and these guidelines are later changed, the defendant may petition for a reduction in sentencing if his or her sentence would be reduced under the new guidelines. A recent case before the United States Court of Appeals for the Fourth Circuit considers such a petition and looks at when district courts are permitted to make additional factual findings in order to justify rejecting sentence reduction petitions.
In our court system, criminal defendants who cannot afford to have legal counsel are entitled to have a public defender appointed to represent them in their criminal trials and proceedings. While many of these public defenders provide competent and admirable legal assistance in the face of overwhelming and stressful workloads, there may be occasional failures of representation. Such failures can also happen with privately retained counsel. When these failures gravely affect a criminal defendant’s case and compromise his or her rights, a criminal defendant can sometimes have decisions of the court, or a conviction, overturned on the basis of “ineffective assistance of counsel.” A recent case before the Fourth Circuit Court of Appeals looks at whether ineffective assistance arises when a criminal defense attorney fails to object to a court’s rejection of a plea deal.
One of the concepts involved in initiating a lawsuit that can often be very confusing to plaintiffs is determining the proper court where the lawsuit may be brought. Particularly when lawsuits involve several plaintiffs in different locations, or a defendant company that operates in many states, it can be hard to determine the correct place to begin. While plaintiffs are often given deference in bringing a lawsuit where they would like (assuming the location is still proper), defendants can have lawsuits dismissed when the location is particularly inconvenient and other, more convenient locations are available. This is known as the doctrine of forum non conveniens. A recent case before the West Virginia Supreme Court addresses this doctrine and how it can be applied.
As the nature of our movements and communications become more electronic, the federal courts and courts in West Virginia are increasingly confronted with the complexities of balancing personal protections and privacy rights with governmental access to electronic data. While the right against unreasonable searches and seizures in the Fourth Amendment was once limited to physical searches of one’s home or car, it must now address government efforts to reach computers, cell phones, and the online “cloud.” One of the more perplexing questions that must be considered is whether these electronic spaces are indeed private, or whether conveying information by cell phone, or saving it online, is essentially a voluntary waiver of privacy. A recent case before the Fourth Circuit takes a look at the specific circumstances in which police use cell phone towers to retrieve information about defendants.
When we use our cell phones, whether for calling, texting, or GPS, they are in a constant state of communication with local cell towers, providing messages and feedback between the two. Cell phone companies typically maintain data regarding with which cell phone tower a particular cell phone interacts, and this data can be used to provide a rough sense of the location of a cell phone user at any time. While governments cannot actively monitor such data, they can request it directly from a cell phone provider. In United States v. Graham, this is precisely what the government did when investigating a series of armed robberies. Such evidence was subsequently used to help convict the defendants, and the defendants argued, on appeal, that the government obtained such data in violation of the Fourth Amendment because it did not have a search warrant.
All criminal defendants are entitled to certain constitutional protections before and after trial. They must be informed of their right to an attorney and their right to remain silent when being asked questions by law enforcement. At trial, defendants are constitutionally entitled to the opportunity to cross-examine witnesses who would testify against them, and to have an attorney by their side. More importantly, the attorney must provide them with effective assistance of counsel. If they are not provided with effective counsel, and the defendant is prejudiced as a result, this is a constitutional basis for overturning a criminal conviction.
The question of what constitutes ineffective assistance of counsel is a complicated one. In most instances, it turns on whether the actions or inactions of counsel so prejudiced the defendant as to prevent him or her from having a fair trial. In certain circumstances, however, the actions of counsel, such as failing to show up at court entirely, can be so markedly ineffective as to be presumptively prejudicial. This is because the decisions or failures of the counsel amount to a complete lack of assistance whatsoever.
When individuals are convicted of crimes in West Virginia and other states, they are given multiple opportunities to appeal their convictions. Initially, these appeals must take place in state court, where any aspect of the merit of the conviction and sentence can be addressed. After the defendant has exhausted his or her appeals in state court (i.e., been unsuccessful), the defendant may appeal the merits of the conviction to the U.S. Supreme Court. After that, if still unsuccessful, the defendant may begin the process of applying for a separate type of “appeal,” known as a writ of habeas. Technically, a habeas petition is not an appeal at all, but it is a separate cause of action that focuses on constitutional claims that a defendant may have against unlawful imprisonment. However, many of the issues raised in a habeas petition are similar to those raised on appeal. Generally, defendants get only one opportunity to apply for a habeas writ. Only in rare circumstances will a court grant multiple or successive habeas petitions. This is in part due to restrictions put in place through the passage of the 1996 Antiterrorism and Effective Death Penalty Act (AEDPA).
When we think of crimes committed and criminal punishments, jail time is usually the first penalty that comes to mind. Criminals who have harmed others must pay with their time and freedom by spending a period in a jail or prison. In lesser circumstances, this may be converted to probation or a suspended sentence, but restrictions on freedom are still imposed. Another, but less often thought of, remedy available to prosecutors is that of restitution. When a crime has imposed a significant financial loss on another individual or entity, the criminal may be required to pay that money back. However, restitution may not be universally imposed. Instead, it must be authorized by statute.
In United States of America v. Serafini, Mr. Serafini was rescued after the boat that he was on drifted into a restricted marine area. When questioned about how he came to be on the boat and how he ended up in this restricted area, Mr. Serafini said he had been assisting another man to get on the boat and was then unable to safely return to shore. Instead, he stayed on the boat. According to Mr. Serafini, the other man and he later got into a dispute, and Mr. Serafini pushed the other man off the boat and then drifted into the restricted area. The Coast Guard then began a search to look for the other man.