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Can A New Jersey Resident Serve as the Personal Representative of a Florida Resident’s Estate or Trust?

Posted by on Jun 24, 2017 in Elder Care | Comments Off on Can A New Jersey Resident Serve as the Personal Representative of a Florida Resident’s Estate or Trust?

By Fredrick P. Niemann, Esq. of Hanlon Niemann & Wright, a Freehold, NJ Estate & Probate Administration Attorney

Many of our parents (and some of my loyal readers) are thinking about retirement and moving to the Sunshine State.  Their house(s) here will be sold, and they will move all of their assets and real estate to their new state of domicile.  For family members left behind in New Jersey, the question becomes whether the family member, as a citizen of New Jersey, can be appointed as executor or administrator of their loved one’s estate or trust in Florida.

Florida’s statute §733.304 generally does not allow for the appointment of a personal representative for somebody’s estate.  It does, however, carve out specific exceptions for loved ones to be appointed no matter where they live.

  • Spouse
  • Child of the decedent, no matter if adopted or blood related
  • Grandchildren, great-grandchildren of the decedent
  • Brother, sister, uncle, aunt, nephew, or niece of the decedent, and their progeny
  • Adoptive parent

So yes it is possible to manage the loved one’s estate even if you live in New Jersey or New York or California.  How about managing a trust in Florida for the benefit of a loved one who lives there?  Like in New Jersey, Florida has adopted its own version of the Uniform Trust Code.  If you are named as trustee of the person’s trust, the law does not prevent you from living out of state and managing the trust in Florida.  But if you move the bank accounts and property out of state, you do need to give notices to the beneficiary of the trust and allow them to object to the move.

To discuss your NJ Estate Probate & Trust matter, please contact Fredrick P. Niemann, Esq. toll-free at (855) 376-5291 or email him at fniemann@hnlawfirm.com.  Please ask us about our video conferencing consultations if you are unable to come to our office.

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A second mistrial is declared for Ohio officer accused in fatal shooting of black driver

Posted by on Jun 24, 2017 in Elder Care | Comments Off on A second mistrial is declared for Ohio officer accused in fatal shooting of black driver

Criminal Justice

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An Ohio judge has again declared a mistrial in the prosecution of Ray Tensing, a University of Cincinnati police officer accused of fatally shooting a black man he pulled over for driving a car without a front license plate.

Judge Leslie Ghiz declared a mistrial after jurors said they were deadlocked after five days of deliberations, report NBC News, Cincinnati.com and the New York Times. Tensing’s first trial also ended with a hung jury. He was charged with murder and involuntary manslaughter in the July 2015 death of Sam DuBose.

Jurors told Ghiz they were almost evenly split.

The trial is the third in a week in which the trial of a police officer for shooting a black man ended without a conviction, the New York Times points out. Jurors acquitted a Milwaukee police officer Wednesday, and jurors acquitted a Minnesota police officer last Friday.

In the Ohio case, prosecutors had maintained there was no justification for the shooting, while the defense said Tensing believed he was going to be dragged by DuBose’s car after DuBose closed the door and turned on the ignition. Tensing had testified he believed at the time that his arm was caught in the steering wheel—a claim contradicted by video evidence—and thought his life was in danger.


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A federal court asks jurors to confront their hidden biases

Posted by on Jun 24, 2017 in Elder Care | Comments Off on A federal court asks jurors to confront their hidden biases

Juries

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There’s something of a formula to the first morning of jury duty. It might involve a refresher on differences between civil and criminal cases, a little bit of shuffling between rooms, and a lot of waiting around in a generously named “Jury Lounge.” But in one federal district, the customary civics lessons for jurors have been given a twist to alert them to the hidden biases they might bring into the courtroom.

The source is an 11-minute video—believed to be the first of its kind—that since March has been shown to every prospective juror in the two federal courthouses, in Seattle and Tacoma, that serve the U.S. District Court for the Western District of Washington.

The video—which cost the court $15,000 to make—complements the customary voir dire process, during which judges and lawyers question potential jurors about conflicts of interest and obvious prejudices that could prevent them from deliberating fairly. It features three speakers: the district’s U.S. Attorney Annette Hayes, Reagan-appointed Judge John Coughenour, and Jeffery Robinson, deputy legal director of the American Civil Liberties Union who started his career as a criminal defense lawyer.

“You might have a deep-seated belief that basketball is a better sport than football, and you may prefer strawberry to raspberry jam,” Robinson says in the video, describing examples of conscious—or explicit—bias. “Today, though,” he says, speaking slowly and looking directly into the camera, “I want to talk to you about unconscious bias: something we all have, simply because we’re human.”

Robinson, who spearheaded the project, said that alerting jurors to their underlying prejudices was a “no-brainer,” citing decades of research on the role of unconscious racial biases in “every aspect of American society,” from hiring practices to policing. “You have two choices: either talk about it or don’t talk about it, and haven’t we seen what happens when we don’t talk about it?” said Robinson. “If it goes unchecked, implicit bias will run rampant.”

Though no particular case in his decades-long career incited his passion for the issue, Robinson said he has seen many jurors who “trust police officers implicitly” and hopes that those who do may reconsider their assumptions.

“If you’re a white person and the only time you see a police officer is when he helps you with a flat tire or responds when someone steals your stereo, you have one view of the police,” Robinson said. Jurors who are distrustful of the police, he said, might be dismissed for being unfair. “Why would trusting the police make you more fair in a criminal case?”

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Seattle-area lawyers and judges have generally praised the video tutorial, but its use remains at the discretion of trial judges, according to the court clerk, William McCool. And this week, for what is believed to be the first time since the video became part of the routine, it was barred by a judge in the case of Leonard Thomas, a black man who was shot and killed by a police SWAT team after a standoff at his home four years ago.

The judge, Barbara Rothstein, ruled on Tuesday that the video would be “simply too prejudicial,” especially because the plaintiffs intended to argue that the officers were affected by racial bias when they shot Thomas. Objections to the video had been raised by the officers’ legal team in the wrongful death civil lawsuit.

Brian Augenthaler, a lawyer for the officers, argued that watching the video could lead jurors to believe that his clients shot Thomas because of an unconscious bias against black people. This was especially so, he asserted, because Robinson is a well-known civil rights attorney who had once served on the ACLU’s board of directors with one of the plaintiffs’ lawyers.

Although the video has been well-received, its effectiveness has yet to be evaluated. The body of research on implicit bias has expanded greatly in the last three decades, but there seems to be little consensus about ways to curb discriminatory behavior.

Patricia Devine, a social psychologist at the University of Wisconsin-Madison, is an expert in the study of racial bias and the unconscious effect of stereotypes. She said the court’s method of “tuning jurors into their biases” is a generally sound approach, though it’s hard to predict how well it will work without some experimental testing. “They’re giving them generally good advice,” Devine said. “But they’re not doing research.”

Although few scholars reject the concept of implicit bias, some are less confident about controlling discriminatory behavior. Calvin Lai, a postdoctoral fellow at Harvard’s Project Implicit lab, has studied hundreds of bias-reduction techniques and has found that most of them were unlikely to cause lasting shifts in behavior. Getting people to “self-regulate” their prejudices, he said, is difficult.

“Simply understanding that your biases exist doesn’t necessarily mean you’re going to stop yourself from acting on them in the moment,” Lai said. “I might know in some abstract way that eating cheeseburgers is bad for my health, but in the moment, I’m not thinking about that. I just want to eat my cheeseburger.”

The Washington federal court’s project is part of a broader effort to minimize the expression of unconscious bias in the courtroom. The American Bar Association, for example, posted guidelines for creating an impartial jury on its website (PDF), complete with recommended orientation materials and examples of jury instructions that directly address the issue of implicit bias.

In the UCLA Law Review, Jerry Kang, a law professor who is the school’s vice chancellor for equity, diversity and inclusion, and some of his colleagues wrote that implicit bias education was likely to do more good than harm, and that such strategies are worth a try, even if there is little scholarship on their effectiveness in practice.

Robinson, who helped initiate the Washington program, says he’s confident that it’s a step in the right direction. “When people ask if it works, I can say without question that it works better than saying nothing.”

This article was originally published by The Marshall Project, a nonprofit news organization covering the U.S. criminal justice system. Sign up for their newsletter, or follow The Marshall Project on Facebook or Twitter.


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Marc Kasowitz’s law firm gets a ‘Trump bump’ in prestige rankings

Posted by on Jun 24, 2017 in Elder Care | Comments Off on Marc Kasowitz’s law firm gets a ‘Trump bump’ in prestige rankings

Law Firms

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The law firm founded by President Donald Trump’s personal lawyer, Marc Kasowitz, has broken into the top 100 in Vault’s prestige rankings.

Kasowitz Benson Torres got a “Trump bump” with its No. 99 ranking, the New York Times DealBook blog reports.

The rankings are based on a survey of 18,000 associates asked to rate the prestige of law firms other than their own. The survey was taken in the spring.

Kasowitz was already in the news at that time for representing Trump in defamation suits and business matters, but he had not yet been named to lead Trump’s legal team in the Russian influence probe.

Cravath, Swaine & Moore took the top spot in the rankings, according to DealBook and Above the Law.

The top 10 law firms in the Vault rankings are:

1) Cravath, Swaine & Moore

2) Wachtell, Lipton, Rosen & Katz

3) Skadden, Arps, Slate, Meagher & Flom

4) Sullivan & Cromwell

5) Davis Polk & Wardwell

6) Simpson Thacher & Bartlett

7) Latham & Watkins

8) Kirkland & Ellis

9) Gibson, Dunn & Crutcher

10) Weil, Gotshal & Manges

Vault’s full list is here.


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Prepaid legal services provider LegalShield adapts by ‘adding a layer of technology’

Posted by on Jun 24, 2017 in Elder Care | Comments Off on Prepaid legal services provider LegalShield adapts by ‘adding a layer of technology’

Reinventing Professionals

Ari Kaplan

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Ari Kaplan spoke with Keri Norris, the senior vice president for regulatory affairs and a chief legal officer at LegalShield, a provider of prepaid legal services.

This Q&A has been condensed.

Ari Kaplan: Tell us about your background and your role at LegalShield.

Keri Norris: I am the senior vice president of regulatory affairs and the chief legal officer, which means I am a little bit of a generalist. I oversee the company’s litigation and traditional corporate work, as well as regulatory affairs, legislative affairs, and product development. I came to LegalShield directly from Crowe & Dunlevy in Oklahoma City and was also with Hunton & Williams in Raleigh. I spent the first part of my career as a traditional large-firm litigation attorney focusing on bankruptcy, creditors’ rights, oil and gas, and intellectual property contracting.

Ari Kaplan: What does LegalShield offer?

Keri Norris: We are a provider of affordable legal plans and we also offer identity theft protection and restoration, for individuals, as well as family and small businesses in all 50 states and four provinces of Canada. We have more than 1.6 million families that are protected by our legal plan. We also sell a small-business legal plan where we protect over 140,000 companies that either offer LegalShield as a voluntary benefit or are members. We recently launched our newest product in the legal shield portfolio, which helps startup founders structure their new business.

Ari Kaplan: Can you describe the typical law firm that is supporting your customers?

Keri Norris: LegalShield is a little bit different in how we operate our business than some of our competitors. We have designated law firms in every state. Most of these firms have been in a partnership with LegalShield for almost 20 years, so they are established law firms that people recognize and are familiar with. We also have a network of panel or referral attorneys also in all 50 states, and we are looking to grow that network all the time. All of the lawyers on of our panel of provider law firms and in the attorney network must meet certain requirements, including a minimum number of years of practice, areas of expertise, and current malpractice insurance, among others. What we really value and consider our real secret is that all of the lawyers in our network absolutely must believe in and buy into the LegalShield customer service model. We have very stringent expectations of our lawyers in terms of timeliness, responsiveness, explanations, and helpful representation. We monitor and value that.

Ari Kaplan: How is LegalShield adapting to the changing legal market?

Keri Norris: The legal market is absolutely changing faster than ever. LegalShield was founded in 1972, at a time when group and prepaid legal plans were a little bit unknown. They have become a very efficient tool to match clients with lawyers for specific legal needs. Group legal plans like LegalShield offer a panel of lawyers with expertise in various areas who are connected directly with clients for the services that they need. Consumers are expecting legal services to be delivered faster than ever before, and they want to be able to find an attorney more easily. LegalShield is adapting by adding a layer of technology to our lawyers and helping clients access them with the touch of a button on our mobile app. Clients can send them speeding tickets or attach contracts for review through their mobile phone so that their lawyers can easily return calls and talk to them about their everyday legal issues. We now have a will inside of our mobile app, where the customer answers a few questions and speaks with his or her law firm, which can then complete that will. Everyone has to find a way to keep lawyers and clients connected. We are not a DIY (do-it-yourself) service. We don’t just put information out there and ask the customer to figure it out. We think every person should have a lawyer and a law firm in their corner so we are constantly focused on making the connection between the client and the attorney.

Ari Kaplan: The company is holding its annual conference in July. What is the theme for this event?

Keri Norris: We are holding our first attorney conference for the lawyers that are in our family today, as well as lawyers that want to join our family and our mission. We are calling this conference “Elevate by LegalShield,” and we really want to help lawyers elevate their practices, their businesses, their personal lives, and just really take themselves and their legal practices to a whole new level. It is a three-day event from July 6 through the 8th in San Diego.

Listen to the complete interview at Reinventing Professionals.

Ari Kaplan regularly interviews leaders in the legal industry and in the broader professional services community to share perspective, highlight transformative change, and introduce new technology at his blog and on iTunes.


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5th Circuit tosses challenge to Mississippi’s controversial religious freedom law

Posted by on Jun 24, 2017 in Elder Care | Comments Off on 5th Circuit tosses challenge to Mississippi’s controversial religious freedom law

Religious Law

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A federal appeals court ruled on Thursday that LGBT activists and other plaintiffs don’t have standing to challenge a controversial Mississippi law that allows businesses to deny marriage-related services to same-sex couples.

The New Orleans-based 5th U.S. Circuit Court of Appeals reversed a federal judge who had blocked the law, House Bill 1523, from taking effect, report The Associated Press and the Clarion-Ledger. How Appealing links to the decision (PDF).

The formal name of the law is the Protecting Freedom of Conscience from Government Discrimination Act. It bars the state from taking any “discriminatory action” against those who act in accordance with these religious beliefs or moral convictions: that marriage should be recognized as the union of one man and one woman, that sexual relations should be reserved for marriage, and that a person’s biological sex is determined by anatomy and genetics at birth.

The law protects businesses that offer wedding-related services; religious groups in their decisions regarding employment, housing and the placement of children in foster or adoptive homes; parents who raise foster children in accordance with their beliefs; and doctors and mental health counselors, provided that their belief doesn’t interfere with visitation, recognition of health care decision makers and emergency treatment.

The law also provides that county clerks and state judges can’t be compelled to license gay marriages, as long as notice is given and a legally valid marriage is not impeded or delayed as a result of the recusal.

The plaintiffs included religious leaders who support gay marriage, gay and transgender persons who could be affected by the law, the Joshua Generation Metropolitan Community Church and the Campaign for Southern Equality. They had claimed HB 1523 violated the establishment clause and the equal protection clause.

The appeals court said none of the plaintiffs had shown an injury in fact, and none had standing.

The plaintiffs had argued they suffered stigma as a result of the law, and they had standing similar to plaintiffs in establishment clause cases who encounter religious displays.

The 5th Circuit disagree and said “just as an individual cannot ‘personally confront’ a warehoused monument, he cannot confront statutory text.”

Mississippi civil rights attorney Robert McDuff told the Clarion-Ledger that the plaintiffs “intend to seek further review, perhaps from the full 5th Circuit and definitely from the United States Supreme Court.”


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7th Circuit refuses to reinstate conviction of Brendan Dassey in ‘Making a Murderer’ case

Posted by on Jun 23, 2017 in Elder Care | Comments Off on 7th Circuit refuses to reinstate conviction of Brendan Dassey in ‘Making a Murderer’ case

Law in Popular Culture

Brendan Dassey

Brendan Dassey. Photo by Tracy Symonds-Keogh, via Wikimedia Commons

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A federal appeals court has refused to reinstate the conviction of a Wisconsin man convicted of helping his uncle kill a woman in a murder case featured in the Making a Murderer Netflix series.

The Chicago-based 7th U.S. Circuit Court of Appeals affirmed a ruling that overturned the conviction of Brendan Dassey, report USA Today and the Associated Press.

A federal magistrate judge who overturned the conviction last August had found police used coercive techniques in getting 16-year-old Dassey to confess to helping his uncle, Steven Avery, kill photographer Teresa Halbach.

Judge Ilana Rovner wrote the decision (PDF) for Dassey, while Judge David Hamilton dissented.

Halbach, a 25-year-old photographer for Auto Trader Magazine, was killed after being called to take photos of a car at Avery’s salvage yard. Her “brutally burned body” provided few clues about the death, Rovner said. Witnesses had reported a large bonfire outside Avery’s residence on the night of Halbach’s death.

Dassey had an IQ that fell “fairly below an average range of intelligence,” Rovner said. A psychological expert said he was highly suggestible, docile and withdrawn.

Dassey originally told investigators that he had helped his uncle load tires and an old van seat onto the bonfire that evening, and he saw nothing unusual. He changed his story over time, “increasing his culpability in response to suggestions by the investigators,” Rovner said.

In a March 1 confession, Dassey said he had helped his uncle clean some fluid from a vehicle from the garage floor. The story changed “after much encouragement,” and Dassey said he helped his uncle put Halbach’s body in the bonfire, Rovner said.

In a final telling of the story, Dassey “admitted to a horrific series of crimes—raping Halbach, cutting her throat, tying her up, cutting her hair, and then taking her to the garage where Avery shot her in the head and the two of them disposed of her body in the fire,” Rovner said.

Dassey had told his initial defense lawyer, Len Kachinsky, that he was innocent, but Kachinsky told the media his client was sad, remorseful and overwhelmed, Rovner said. According to media reports, Kachinsky blamed Avery for “leading Dassey down the criminal path” and said he had not ruled out a plea deal. Kachinsky later testified that he made the statements so Dassey’s family would become accustomed to the idea that Dassey would take a legal option they didn’t like.

Kachinsky asked his investigator to compel Dassey to confess to get Dassey’s cooperation in Avery’s prosecution. The investigator told Dassey his lie detector test showed deception, though it was inconclusive, and told him he could spend the rest of his life in prison because “you did a very bad thing.” Dassey originally told the investigator “I don’t know [if I’m sorry] because I didn’t do anything.” After being told he did a bad thing, Dassey responded, “Yeah, but I was only there for the fire.”

Dassey finally confessed, providing another version of the story. Kachinsky set up another interrogation with police, and did not accompany Dassey there. Dassey confessed yet again during the May 13 police interrogation, though the details differed from the May 1 confession.

The trial court learned that Kachinsky allowed his client to be interrogated without counsel present and held a hearing on his effectiveness. Kachinsky withdrew from the representation.

A state court considering Dassey’s appeal had stated the general standard for evaluating whether a confession is voluntary, but it didn’t apply the standard and didn’t note that juvenile confessions require more care, Rovner said.

“If a state court can evade all federal review by merely parroting the correct Supreme Court law,” Rovner wrote, “then the writ of habeas corpus is meaningless.”

Defendant’s last name corrected at 4:00 p.m.


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Undisclosed evidence doesn’t merit overturning convictions in ‘84 gang murder, Supreme Court rules

Posted by on Jun 23, 2017 in Elder Care | Comments Off on Undisclosed evidence doesn’t merit overturning convictions in ‘84 gang murder, Supreme Court rules

U.S. Supreme Court

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Evidence withheld by prosecutors in the group prosecution of gang members in a high-profile 1984 murder case wasn’t material to guilt, the U.S. Supreme Court ruled on Thursday.

The 6-2 decision upheld convictions for seven defendants in the murder of Catherine Fuller, a case that “helped cement the image of the nation’s capital as a violent and dangerous place,” the Washington Post reports.

Fuller had been robbed, beaten and sodomized with an object that caused extensive injuries, according to the majority opinion (PDF) by Justice Stephen G. Breyer. Her body was found in an alley garage.

The government had contended that Fuller was attacked by a large group of people that included eight convicted defendants, one of whom later died. The defendants had pursued a “not me, maybe them” defense that claimed they were not part of the group that attacked Fuller, according to Breyer.

One piece of undisclosed evidence concerned a report that one of two men seen by a witness in the vicinity had been arrested after the attack for beating and robbing two women in the neighborhood. In addition, seven years after the trial in Fuller’s murder, the man robbed, sodomized and murdered a young woman in an alley.

The defendants claimed that, if they had known about the man in the area, they would have challenged the government’s theory of a group attack.

Breyer, however, said the withheld evidence “is too little, too weak, or too distant from the main evidentiary points to meet” to meet the materiality standard established in Brady v. Maryland.

Virtually every witness to the crime agreed that Fuller had been attacked by a large group of people, Breyer said. It is not reasonably probable that disclosure of the evidence would have changed the result.

Justice Elena Kagan dissented in an opinion joined by Justice Ruth Bader Ginsburg.

The case is Turner v. United States.


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Trump says he never recorded his conversations with James Comey

Posted by on Jun 23, 2017 in Elder Care | Comments Off on Trump says he never recorded his conversations with James Comey

Executive Branch

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President Donald Trump said in a tweet on Thursday that he did not record his conversations with former FBI director James Comey.

Trump’s tweet said that “I did not make, and do not have, any such recordings,” the New York Times, the Washington Post and Bloomberg News report.

Trump’s denial puts an end to speculation that arose after he tweeted May 12 that, “James Comey better hope that there are no ‘tapes’ of our conversations before he starts leaking to the press!”

Comey had referenced Trump’s May 12 tweet when he testified about his conversations with Trump before the Senate Intelligence Committee on June 8. “I’ve seen the tweet about tapes,” Comey said. “Lordy, I hope there are tapes.”

Comey said Trump told him in private conversations that he wanted his loyalty and he hoped he could let go of the investigation into former national security adviser Michael Flynn’s contacts with Russia.


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7th Circuit chastises lawyer for telling judge he was advocating for prosecutors, abdicating his job

Posted by on Jun 23, 2017 in Elder Care | Comments Off on 7th Circuit chastises lawyer for telling judge he was advocating for prosecutors, abdicating his job

Judiciary

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A defense lawyer who told an 80-year-old federal judge that he was “advocating for the government” and “abdicating your job as a judge” can’t be rewarded for her inappropriate conduct, a federal appeals court has ruled.

The Chicago-based 7th U.S. Circuit Court of Appeals rejected arguments that U.S. District Judge Charles Norgle Sr. had prejudiced the jury in a mortgage fraud trial by showing contempt toward lawyer Jennifer Bonjean, the Chicago Tribune reports.

Some trial decisions by Norgle may have been “puzzling,” but they didn’t justify Bonjean’s “frequent and serious” outbursts, the court said in a June 20 opinion by Judge David Hamilton. “We do not reward defendants ‘for success in baiting the judge,’” he wrote, quoting from a 1983 appellate decision.

At one point, Bonjean asked Norgle whether “the court would like to take off its robe and come down here and do the government’s job for it?” She claimed, in front of jurors, that the judge was “doing recross for the government,” attempting to influence jurors, and violating her client’s Sixth Amendment rights.

Bonjean “got off on the wrong foot even before voir dire began,” the opinion said, “telling the judge his questions as she argued a motion were ‘exceptionally rude’ and ‘interrupting.’” Her arguments “quickly became sarcastic to the point of hyperbole,” the court said.

The judge “did not show infinite patience” in the face of those provocations, but his responses weren’t excessive, the court said.

The Tribune describes Bonjean as a “feminist lawyer” who is known for her advocacy on behalf of wrongfully convicted inmates. She told the Tribune that practicing before Norgle is “a miserable experience” and she believes some of his reactions were partly influenced by the fact that both she and her client are female.

She was unable to point to evidence of sexism, but she said it was conveyed in the judge’s demeanor, including his tone, his interruptions and his eye-rolling. She said she regrets about 5 percent of comments she made “in the heat of emotion, but 95 percent I stand by.”


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