Latest 3 Cases This Week: United States v. Caviedes-Zuniga (7th Cir.), Washington v. Nickels (Wash.), Wisconsin Judicial Commission v. Gorski (Wis.)

Should Animals Be Allowed to Sue?

SHERRY F. COLB

Cornell law professor Sherry F. Colb comments on case in which Animal Legal Defense Fund (ALDF) brought a civil damages suit on behalf of an abused horse, now named Justice, against the horse’s former owner. Colb dismantles three arguments critics raise in opposition to recognizing abused animals as plaintiffs in lawsuits such as this one.

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United States v. Caviedes-Zuniga

Court: US Court of Appeals for the Seventh Circuit

Docket: 19-1104

Opinion Date: January 27, 2020

Judge: Frank Hoover Easterbrook

Areas of Law: Criminal Law, Legal Ethics

Caviedes-Zuniga pleaded guilty to distributing 140 grams of heroin. 21 U.S.C. 841(a)(1), (b)(1)(B). He was sentenced to 111 months’ imprisonment, 77 months below the 188 -235 months recommended by the Sentencing Guidelines. After filing a notice of appeal, he told his lawyer that he wants a trial. He also told his attorney that he does not wish to contest his sentence if the conviction remains in place. Counsel asked to withdraw, representing that he deems the appeal frivolous; he argued that a successful appeal could upset the sentence and harm the defendant. The Seventh Circuit agreed and dismissed the appeal as frivolous, allowing counsel to withdraw. A judge might well reconsider the sentencing discount for acceptance of responsibility on learning that on appeal Caviedes-Zuniga tried to have the plea vacated, even if the attempt failed.

Washington v. Nickels

Court: Washington Supreme Court

Docket: 96943-4

Opinion Date: January 30, 2020

Judge: Susan Owens

Areas of Law: Constitutional Law, Criminal Law, Legal Ethics

The State charged David Nickels with first degree murder in 2010 in Grant County, Washington. Though represented by counsel. Nickels acquired additional legal assistance from a local criminal defense attorney, Garth Dano. The parties agreed that Dano's involvement in Nickels' defense created a conflict of interest requiring Dano's personal disqualification, but they disputed the scope of his involvement. The record established that Dano entered a notice of association of counsel and appeared on the record to receive a jury question and to receive the jury's verdict. The record further establishes that after Nickels' conviction in 2012, Dano conducted interviews with jurors and potential exonerating witnesses. Via his counsel's uncontested affidavit, Nickels claimed Dano received privileged work product through his participation in crafting the defense's strategy and theory of the case, and his meeting personally with Nickels. In 2014, while Nickels' appeal was pending, Dano was elected Grant County prosecutor. Subsequently, in 2017, the Court of Appeals reversed Nickels' conviction. On remand, the Grant County Prosecuting Attorney's Office immediately sought to screen now-Prosecutor Dano. Nickels moved to disqualify the entire office, arguing that under “Stenger,” Dano's prior involvement in his defense necessitated the blanket recusal. The trial court denied Nickels' motion; but the Court of Appeals reversed and, applying Stenger, ordered the disqualification of the entire Grant County Prosecuting Attorney's Office. The Washington Supreme Court determined Stenger’s narrowly crafted rule applied only to Washington's 39 elected county prosecutors who, despite adequate screening, retained broad discretionary and administrative powers over their offices and employees. Accordingly, the Supreme Court held that Stenger remained good law, and affirmed the Court of Appeals' decision disqualifying the Grant County Prosecuting Attorney's Office.

Wisconsin Judicial Commission v. Gorski

Court: Wisconsin Supreme Court

Docket: 2019AP000199-J

Opinion Date: January 30, 2020

Judge: Per Curiam

Areas of Law: Legal Ethics

In this judicial disciplinary proceeding, the Supreme Court adopted a Judicial Conduct Panel's findings of fact, agreed that those facts demonstrated that Honorable Kenneth W. Gorski, a part-time commissioner for the Wood County circuit court, committed judicial misconduct, and publicly reprimanded Commissioner Gorski for that misconduct. After adopting the panel's findings of fact the Supreme Court agreed with the panel's conclusion that those factual findings demonstrated that Commissioner Gorski willfully violated specified provisions of the Code of Judicial Conduct, thereby committing judicial misconduct. The Court then held that a sanction was necessary to impress upon Commissioner Gorski the damage that such conduct does to the judicial system and the rule of law and ordered that Commissioner Gorski be publicly reprimanded for judicial misconduct.