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High court takes up death penalty for retarded
Legal Career News | 2007/09/10 16:56
A man who has been on Georgia’s death row for most of his life should not be executed because he is mentally retarded, the defendant’s lawyer told the state Supreme Court Monday.
But a Floyd County prosecutor said IQ tests show that James Randall Rogers, 46, of Rome does not meet the standard of “significantly subaverage” intelligence required by state law to exclude a convicted killer from capital punishment.

Rogers was convicted and sentenced to death for murdering Grace Perry, his 75-year-old neighbor, with a rake handle in 1980, when he was 19. He also was sentenced to 10 years for aggravated assault for attacking the victim’s 63-year-old cousin.

In 1988, Georgia became the first state to prohibit the death penalty for defendants who are mentally retarded. Then in 2002, the U.S. Supreme Court held that executing the mentally retarded is unconstitutional.

At issue in Monday’s hearing was an appeal filed on Rogers’ behalf after a 2005 trial in which a jury found that he is not mentally retarded.

The state’s witnesses at the trial included a professional counselor who administered an IQ test to Rogers. He answered a number of questions correctly, including naming the U.S. president during the Civil War and the population of the Earth.

“The answers on that test indicate that Mr. Rogers is not that much below average,” said Martha Jacobs, chief assistant district attorney for the Rome Judicial Circuit.

Jacobs said Rogers is a voracious reader and has used the law library at the state prison in Jackson to do research on his case.

In fact, shortly after the General Assembly banned executing the mentally retarded, Rogers wrote letters waiving his right to a competency trial. In one letter, he argued that it would be a waste of tax money because he has an IQ of 85.

One generally accepted indication of subaverage intelligence is scoring below 70 on IQ tests.

However, the case went forward after the state Supreme Court ruled that a defendant in such cases can not waive his or her right to a competency trial.

On Monday, Rogers’ lawyer, Ralph Knowles Jr., said his client suffers from a “severe organic brain injury” that has impaired his mental functioning since childhood.

Knowles suggested that the court broaden the state’s standard for mental retardation to include such a brain injury and not rely strictly on IQ scores to decide whether a defendant should be executed.

“Surely, this state cannot determine life or death based on whether a person’s scores are two points below standard deviation,” he said.

Knowles also accused the state of violating Rogers’ due-process rights and argued that those technical violations alone would be enough for the court to vacate his death sentence.

Knowles said the trial judge refused to allow one of the lawyers Rogers had chosen to speak for him in court, and he charged that the counselor who administered the IQ test to his client and then testified about the results was not qualified as an expert witness.

“His testimony is not believable,” Knowles said. “The state would have you believe that Mr. Rogers somehow got smarted up sitting there on death row.”

Jacobs said the lawyer who wasn’t allowed to speak for Rogers during the trial did participate in other aspects of his defense, including filing briefs.

Jacobs also defended the expert witness as a trained “psychometrist,” a specialist in psychological testing, who found Rogers both articulate and with an excellent short-term memory.


Boston police officer pleads guilty to drug charges
Criminal Law Updates | 2007/09/10 15:03
1 of 3 Boston police officers facing federal drug charges pleads guilty.

Carlos Pizarro was arrested in Miami last year along with two colleagues, Robert Pulido and Nelson Carrasquillo. Prosecutors allege the police officers went to Miami to collect $35,000 from undercover FBI agents.

U.S. District Court Judge William Young told Pizarro that under federal sentencing guidelines he could face between 19.5 and 24 years in prison.

But because Pizarro accepted responsibility and has no criminal record his sentence could be as low as eleven to 14 years.

Sentencing is scheduled for December 12th.

Prosecutors say the defendants believed the agents were drug dealers who had hired them to protect a shipment of cocaine in Massachusetts.

Pulido and Carrasquillo are scheduled to go to trial in November.



KGS Announces Filing of Securities Class Action Lawsuit
Class Action News | 2007/09/10 10:01

Kahn Gauthier Swick, LLC ("KGS") has filed the first class action lawsuit against China Sunergy Co. Ltd. ("China Sunergy" or the "Company") (NASDAQ: CSUN) in the United States District Court for the Southern District of New York, on behalf of shareholders who purchased the common stock of China Sunergy in connection with the Company's IPO on or about May 17, 2007, or who purchased shares thereafter in the open market. No class has yet been certified in this action.

UNLESS A CLASS IS CERTIFIED, YOU ARE NOT PERSONALLY REPRESENTED BY COUNSEL UNLESS YOU RETAIN AN ATTORNEY.

China Sunergy, certain of its officers and directors, and the Company's underwriters are charged with including, or allowing the inclusion of, materially false and misleading statements in the Registration Statement and Prospectus issued in connection with the IPO, in violation of the Securities Act of 1933.

Particularly, the Complaint charges that China Sunergy raised over $107.52 million through the issuance of 9.775 million shares, despite the Registration Statement's false and misleading statements that the Company: (1) was a "leading manufacturer of solar cell products, as measured by production capacity" that was experiencing remarkable revenue growth; and (2) had secured a sufficient supply of polysilicon, a raw material necessary to the continued production of its solar cell products. Yet at the time of the IPO and unbeknownst to shareholders, the Registration Statement failed to disclose that China Sunergy was already having difficulty obtaining a sufficient supply of polysilicon, which foreseeably would have a near-term adverse impact on earnings.

On July 3, 2007, only weeks after the IPO, China Sunergy issued a press release announcing preliminary results for 2Q:07 well below guidance, and claimed that it could suddenly not obtain critical raw materials necessary for production and its revenue goals. The Company's press release stated that "the relatively tight supply of polysilicon affected the quality, quantity and delivery of wafers and drove up overall wafer prices in the spot market, resulting in increased pressure on China Sunergy's margins."

On this news, shares of China Sunergy fell nearly 25% in a single trading day, from a high of $14.90 on July 2, 2007, to a close of $11.28 the following day, on exceedingly high volume of 3.659 million shares. As the impact of China Sunergy's belated disclosures resonated in the market, shares of the Company continued to decline, to about $7.50 per share by August 23, 2007. Shares fell significantly lower days later, to below $5.00 per share -- on news that the Company's CFO was resigning -- after China Sunergy revealed a loss of at least $.14 per share for 2Q:07. In all, China Sunergy shares fell from $16.70 per share from the highs following the IPO, to a low of below $5.00 per share -- all within approximately 10 weeks.

If you wish to serve as lead plaintiff in this class action lawsuit, you must move the Court no later than November 9, 2007. Any member of the purported class may move the Court to serve as lead plaintiff through counsel of their choice, or may choose to do nothing and remain an absent class member. If you would like to discuss your legal rights, you may e-mail or call KGS Managing Partner Lewis Kahn, without obligation or cost to you, toll free 1-866-467-1400, ext. 100, or by email at lewis.kahn@kgscounsel.com. To learn more about this case or KGS, you may visit http://www.kgscounsel.com/case/case.asp?lngCaseId=5014. KGS focuses its practice on securities class action litigation, and has been appointed lead counsel in numerous federal securities class actions.



Community court idea is pondered for downtown
Lawyer Blog News | 2007/09/10 09:59

The Downtown Council is working to install more social "software" to complement the hard investment being made in the new arena, entertainment district and residential projects.

Four years ago, the property and business group started the Downtown Community Improvement District, an additional layer of privately funded services to make the area cleaner and safer. It's up for renewal and many people think it has been as much help reviving downtown as the major construction projects.

Now, the group is working closely with the Municipal Court to establish what is referred to as a community court. The concept got started in New York City in 1993 as a way to more compassionately and effectively deal with petty street crime and associated public safety issues.

It's intended to intervene in the futile cycle of having police pick up the same individuals repeatedly for misdemeanor crimes such as public intoxication and harassment, and then haul them to court where they'll perhaps serve a few days in jail before being released back to the street.

The community court approach identifies those individuals when they enter the criminal justice system. Rather than sending them off to jail, a case worker or similar professional shifts them to alternative programs such as drug and alcohol treatment or community service.

Say you're a chronic graffiti tagger. Rather than go to jail, a community court would return you to the neighborhood you trashed and require 40 hours of cleanup work.

"You don't solve crime, you come up with a better way to manage it and address quality of life issues," said Bill Dietrich, the president and CEO of the Downtown Council.

Sean O'Byrne, vice president of the council, said many people responsible for petty crime downtown often suffer from mental illness or addictions.

"The majority of individuals … end up anonymous on downtown streets, and downtown properties suffer as a result," he said. "This gives us a better tool to address the problem."

The community court approach also might help police do a better job keeping watch downtown and elsewhere.

Last December, Kansas City Police Chief Jim Corwin observed that homeless people contributed to downtown's image problem, and that, he said, was not necessarily a police issue.

"Am I supposed to arrest dirty people?" he asked at the time. "The homeless issue is a major downtown, urban problem. Cities that are successful have to take care of it holistically."

Corwin reaffirmed that idea last month when he decided not to enforce a new aggressive panhandling law approved by the Kansas City Council.

O'Byrne said a community court program would help police.

"They'll be able to spend less time booking people for the 20th time," he said. "We want them on the streets to protect people from more serious crimes. It's a time winner."

Dietrich and O'Byrne said Presiding Municipal Judge Elaine Franco is taking the lead on the issue. The judge could not be reached for comment, but last March she said a community court would work as well in Kansas City as other cities.

Franco supported a pilot community court program resolution being considered by the City Council.

"The consensus is that relatively low-level crimes that they are addressing in this resolution … should not be treated with a revolving-door concept approach," the judge said.

The council approved the resolution, but so far the program has not been implemented.



Naked Montclair carpenter not guilty
Court Feed News | 2007/09/10 06:04

Carpenter Percy Honniball enjoys practicing his craft in the nude and, according to at least one Alameda County Superior Court judge, there is nothing legally wrong with that.

Judge Julie Conger found Honniball not guilty of indecent exposure Thursday for being naked while he worked in a Montclair home last year.

Honniball, who has a history of not wearing clothes while working, was caught in the buff in 2005 as he made repairs to the home. A neighbor had called police.

At the time, Honniball, 51, said he was more comfortable working naked and didn't want to get his clothes dirty as he sawed wood and nailed cabinets together.

Police arrested Honniball for indecent exposure, a crime that includes public nudity and acting lewdly by intending to direct attention to one's genitals for sexual gratification.

If convicted of indecent exposure, a person could be sentenced to a year in jail and be required to register as a sex offender.

While there is no dispute Honniball was naked, Conger found that the carpenter was not acting lewdly, nor did he attempt to bring attention to his genitals for the purpose of sexual gratification.

"What he learned was that you can get in trouble even when you do legal things," said David Beauvais, Honniball's attorney. "Even though there is a reaction, on the part of some people, to nudity . . . it is not enough to charge somebody with this."

Honniball could not be reached for comment, but last year he said in an interview, "The primary reason is so I won't dirty my clothes and have to get into my truck with dusty clothes on. "It's more comfortable," he said.

Honniball knew working in the nude caused problems.

The carpenter was caught three times working naked in Berkeley. In 2003, he was given two years probation for violating Berkeley's ban on public nudity.

Oakland does not have such a ban.

"For Honniball, he feels that it facilitates his work; he has better range of movement," Beauvais said. "I could tell you some stories about nail guns, but we won't get into that."



Weil, Gotshal & Manges opening Hong Kong office
Law Firm News | 2007/09/07 16:04



New York law firm Weil, Gotshal & Manges plans to open an office in Hong Kong in October to serve its private equity and corporate clients.

The office, which was approved by the Hong Kong authorities in August, will have five attorneys: two New York partners, Akiko Mikumo and Peter Feist; a Shanghai partner, David Meredith; and two associates. The group will focus on private equity and project finance, Feist said.

The 1,200-attorney Weil firm, whose private equity clients with Chinese operations include Bain Capital and Providence Equity Partners, is the last of the five largest New York firms to open in Hong Kong.

"In order to get the most out of our Asia practice, we had to be in Hong Kong," said Mikumo, who is a member of the firm's management committee and will be managing partner of the new office. "Once you're in Shanghai, you need to be in the key financial centers."

The firm, which opened its Shanghai office three years ago, intends to use Hong Kong as its base for representing clients in Asia. Weil has plans to open an office in Beijing next and is in the process of applying for a license. Tokyo "would be a natural next step," Mikumo said.

Feist said: "There are so many foreign investors asking about doing business in mainland China and how to deal with the regulatory environment. The whole modus operandi is so different from how U.S. businesses are run."

Though the U.S. subprime crisis has virtually halted private equity activity in the United States, Feist said he was not worried about the firm's prospects in Hong Kong.

"I don't expect the private equity firms to stop looking at the opportunities in Asia," said Feist, who moved to Hong Kong on Monday.

The firm's clients did not ask the firm to open an office in Hong Kong, though "private equity clients had voiced their concern," Mikumo said.

The Hong Kong office will look to hire additional lawyers, including intellectual property and general corporate practitioners, after the opening, she said.

"We're going to start modestly," Mikumo said. "It's easy to hire laterals if you have an office there. The firm wanted people from the home office to start operations."

Weil, whose clients include General Electric, Reuters, Johnson & Johnson and Koch Industries, had revenue of $1.05 billion in 2006, the ninth-highest among U.S. law firms, according to the trade publication American Lawyer.

Weil was fourth among legal advisers to principals in mergers and acquisitions deals involving private equity in 2007, according to Bloomberg data. The firm provided advice on 48 deals worth a total of $129.7 billion. Sullivan & Cromwell is first with $205.7 billion in private equity deals.

http://www.weil.com



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