RI Supreme Court Terminates Prisoner’s Parental Rights

In an opinion written by Justice Flaherty, the Rhode Island Supreme Court held in In re Jose Luis R.H. that a termination of a father’s parental rights to his son will be upheld, where the temination decision was supported by evidence (1) that the Department of Children, Youth and Families made reasonable efforts to encourage and strengthen the parental relationship between father and son; (2) that the father only began to participate in relevant programs around the time DCYF filed its petition to terminate his parental rights; and (3) that the father’s incarceration rendered it improbable that he would be able to care for his child within a reasonable period of time.

How tragic is this:

We appreciate that the respondent has demonstrated his love for and desire to be a parent to Jose Luis, but the fact remains that he presented no evidence of his actual ability to care for Jose Luis within a reasonable period. “[A] parent’s genuine love for [his] child, or an existence of a bond between parent and child is not sufficient to overcome the child’s fundamental right to a safe and nurturing environment.” In re Douglas F., 840 A.2d 1087, 1089 (R.I. 2003) (quoting In re Brianna D., 798 A.2d 413, 415 (R.I. 2002)).

Conclusion

We affirm the Family Court decree terminating the respondent’s parental rights…

RI Supreme Court on Duty of Care Owed to Commercial Tenant

In an interesting premise liability case – Holley, et al. v. Argonaut Holdings, Inc., et al. – the RI Supreme Court considered the duty, if any, owed by a commercial landlord to an employee of its tenant.  The Court, in an opinion written by Justice Flaherty, held that where a plaintiff employee of a commercial tenant brought suit seeking to hold the defendant landlord liable for an injury sustained at the leased premises, a judgment for the defendant was properly entered because no breach of duty was shown.

Justice Flaherty writes:

The plaintiffs’ complaint alleged that defendant had a duty to maintain the premises. The plaintiffs contended that their injuries were a direct result of defendant’s breach of this duty. However, under our well-settled law, a commercial landlord owes a duty of care to an invitee of its tenant only under the narrowest of circumstances. Therefore, such a landowner is not liable for injuries that the tenant’s invitee suffers on the leased premises, “unless the injury results from the landlord’s breach of a covenant to repair in the lease, or from a latent defect known to the landlord but not known to the tenant or guest, or because the landlord subsequently has assumed the duty to repair.” Lucier v. Impact Recreation, Ltd., 864 A.2d 635, 640 (R.I. 2005) (citing East Coast Collision & Restoration, Inc. v. Allyn, 742 A.2d 273, 276 (R.I. 1999); Coppotelli v. Brewer Yacht Yard at Cowesset, Inc., 636 A.2d 1326, 1327 (R.I. 1999); Izen v. Winoker, 589 A.2d 824, 828 (R.I. 1991)).

Here, we conclude that plaintiffs have failed to demonstrate that any of the three exceptions to the rule apply…

MA Bar Releases Green Guidelines

In celebration of Earth Day, the Massachusetts Bar Association Lawyers Eco-Challenge has released its latest Green Guidelines, this time with a focus on landscape management. The guidelines promote replacing traditional lawns with natural landscaping and native plants, or implementing measures to reduce pollution and improve soil health when caring for a traditional lawn. Click here to check out the Green Guidelines.

First Circuit Weighs-in on Professional Liability and Insurance

The First Circuit Court of Appeals has ruled in Centennial Insurance Company v. Patterson that where a federal judge declared that an appellant insurance company was obligated under the terms of a veterinarian’s professional liability policy to defend an appellee veterinarian in a lawsuit in US District Court in Maine, the judge’s ruling should stand, as the complaint in the lawsuit could be construed to state claims against the veterinarian for slander, libel, negligence and malpractice – all claims which were within the scope of the policy and not barred by any exclusion.

Chafee is Running for Governor as an Independent

It’s official (or maybe it’s not).  Lincoln Chafee is running for Governor as an Independent.

This is why I believe, as an independent candidate for Governor, I bring the local, national and international experience to make government work for all our citizens while at the same time insuring Rhode Island’s position in the global economy.

Chafee also talked about his decision last night on the Rachel Maddow show.

Writing on RIFuture, I put the odds of Chafee being inaugurated as Rhode Island’s next governor at 1:1.  Here’s why.

Former Sen. Lincoln Chafee has had a huge year ever since his February 2008 endorsement of then Sen. Barack Obama just weeks before the RI presidential primary.  On top of that, I have seen polling numbers where Chafee is the only candidate topping 60% in a state whose citizenry is largely disillusioned by the performance of many of its elected officials and disappointed in the current direction of the state.

With the recent news that Chafee is – for all intents and purposes – running for Governor and that his campaign would be led by former BankRI executive and Democrat Jim DeRentis, many political leaders across Rhode Island are taking a serious look at his candidacy.

As I said in this recent Phoenix story on the 2010 gubernatorial race, I think you may see many progressives who were responsible for Chafee’s defeat in 2006 support his ressurection for Governor in 2010.  I am not suggesting buyer’s remorse in the least.  I just believe that in 2006, progressives were looking for a check on Bush’s power, which Sen. Whitehouse has delivered.  And, in 2010, Rhode Island voters may be ready for a candidate who shuns partisanship, believes in environmentalism and smart growth and puts Rhode Island’s interests first.

At the end of the day, Chafee’s greatest strengths are that (1) he has impeccable name recognition throughout the state, (2) he is running as an Independent and can sit on the sidelines until the September 14, 2010 democratic primary is over and then steamroll whichever Democrat emerges bloody and bruised from the primary (see Chafee in 2000 or York in 2002 or Whitehouse in 2006); and (3) he has unlimited resources through his family’s wealth.

Can Linc Chafee accumulate the 40% of the vote that he would need to win a 3-way race for Governor?  Odds say even money that the answer is yes.  Cash on Hand (independently wealthy); Website and Facebook Page.

Attention New RI Attorneys

The Rhode Island Bar Association’s New Attorney Advancement Task Force has sponsored a year-long series of seminars aimed at helping new Bar members, as well as more seasoned members, with their professional and personal lives.

Their next event – on Tuesday, May 12th – is a personal financial planning seminar featuring knowledgeable and helpful representatives from the Rhode Island Society of Financial Service Professionals.   This fast-moving and interactive seminar, designed for new Bar members, but open to all Bar members, is organized to allow each attendee to spend time discussing the following important and relevant financial issues including:

• Student Loans and Other Debt
• Disability Insurance
• Life Insurance
• Retirement Planning
• Planning for Parents
• Exit and Transition Planning

The event is from 12:00 noon to 1:30 p.m., at the Rhode Island Law Center, on 115 Cedar Street, in Providence.  The cost is only $5.  To reserve your space and arrange payment, please contact the Rhode Island Bar Association’s Communications Coordinator Tanya Nieves by telephone at: 401-421-5740

Chief Justice Vacancy on the Backburner?

The deadline for Governor Carcieri to nominate his pick to replace Chief Justice Williams has come and gone.  Pursuant to statute, the governor is allowed 21 days to forward his pick to the general assembly, but it appears that Governor Carcieri is still in the initial stages.

According to the Providence Journal quoting Carcieri’s spokeswoman, Amy Kempe:

The governor will review each contender’s body of work; lengthy application to the JNC; references; and letters of recommendation as part of his deliberations. He will also interview and meet with each; those discussions have not yet been scheduled.

Understandably this is an important position with lifetime tenure, but I open this up to debate as to what political considerations are slowing this process to a halt.

Jack McConnell Receives Widespread Support for Bid for U.S. District Court

As reported by WRNI’s Scott MacKay, prominent and well-respected Providence attorney Jack McConnell has received widespread support for his bid to become a judge in the US District Court in Rhode Island (which we previously reported here).

McConnell boasts a long list of civic and political involvement. He is chairman of the board of Trinity Repertory Theatre, chairman of the Providence Tourism Council and vice-chairman of the board of directors of Crossroads Rhode Island.

Among those who sent letters supporting McConnell’s bid for the judgeship are a slew of state business, political, labor and religious leaders, including David Whalen, ceo of A.T. Cross; Merrill Sherman, ceo of BankRI; Howard Sutton, publisher of the Providence Journal; George Nee, secretary-treasurer of the state AFL-CIO; the Rev. Ray Malm; Sr. Anne Keefe [of St. Michael's Church]; and Warwick Mayor Scott Avedisian, a Republican.

It is impressive to see so many business and Republican leaders lining up behind McConnell’s nomination.  He has a big tent of support.

Law Students Answer to Public Defender Problem?

This is clearly a problem.

As Rhode Island Public Defender John J. Hardiman looked around at the lawyers in his downtown office, he realized something had to give. The attorneys were overworked, providing legal representation for the steady stream of Rhode Islanders who can’t afford private attorneys, and Hardiman needed a way to lighten the load. In February, he sent a letter to the presiding justice of the Superior Court stating that the office would no longer accept any post-conviction-relief cases — those which seek some sort of remedy after a defendant has been sentenced. Hardiman has learned that he would have to file a formal motion with the court to get a reprieve on the cases.

…The public defender’s office, created in 1941, is a subsidiary of the executive branch, rather than the judiciary. The office has a $9.3-million budget this year. By contrast, Hardiman said, the State of Delaware, which is of similar size to Rhode Island, allotted $14 million in state and federal funds to its public defender’s office.

In an average year, each lawyer in the Rhode Island office disposes of 1,517 misdemeanor cases and 239 felony cases. By contrast, the National Advisory Commission on Criminal Justice Standards and Goals suggests public defense attorneys handle no more than 400 misdemeanors or 150 felonies a year. In the 26 years Hardiman has worked as a public defender, he said, the office’s lawyers have exceeded the national recommendations. The number of criminal cases alone referred to the office increased substantially, from 15,168 in 2004 to 19,641 in 2008.

And barring a significant increase in funding to hire new public defenders, this looks like a possible solution.

The judiciary is looking to strengthen its partnership with Roger Williams University School of Law to help the state public defender’s office handle post-conviction relief cases.

Acting Supreme Court Chief Justice Maureen McKenna Goldberg has proposed a partnership with the law school that would allow senior law students to handle post-conviction relief matters for indigent defendants in Superior Court. McKenna also proposes having court-appointed attorneys work with the students.

“In my view, such a project would present enormous and beneficial opportunities for Roger Williams’ law students,” she said in a letter to the law school. “With your assistance, such an endeavor may prove to be worthwhile and beneficial to the students, indigent members of the community, and the judiciary.”

With their passion, zeal and unbridled enthusiasm, law school students will be able to do a great job on post-conviction relief cases.  You may recall that Northwestern law students were instrumental in their Governor commuting over 100 death row cases after students found exonerating evidence in several cases.

RI Supreme Court Denies Derick Hazard a New Trial

Amidst significant community protests, the Rhode Island Supreme Court ruled on Monday denying Derick Hazard’s appeal for a new trial.

Acting Chief Justice Maureen McKenna Goldberg wrote the unanimous opinion of the Court.

This case came before the Supreme Court on January 27, 2009, on an appeal by the applicant, Derick Hazard (Hazard or applicant), from the denial of his application for post-conviction relief. On July 17, 1998, a jury found Hazard guilty of first-degree murder, conspiracy to commit murder, and assault with intent to murder. Hazard subsequently appealed to this Court, and we affirmed the judgment of conviction. State v. Hazard, 797 A.2d 448 (R.I. 2002). On June 6, 2005, Hazard filed an application for post-conviction relief based on the alleged ineffective assistance of his trial counsel. After three days of testimony, the hearing justice issued a written decision in which he denied Hazard’s application for post-conviction relief. For the reasons stated in this opinion, we affirm the judgment of the Superior Court.

The Court held that Hazard and his attorney – former Assistant Attorney General J. Richard Ratcliffe, failed to meet the 2-prong test from Strickland v. Washington for proving ineffective assistance of counsel pursuant to the Sixth Amendment.

Before this Court, Hazard asserts that Oddo’s performance as trial counsel was so deficient as to violate Hazard’s constitutional right to counsel. His contention is based on Oddo’s failure to investigate the New Jersey traffic stop despite knowing of it before trial. The applicant argues that Oddo’s inaction was “palpably unreasonable”; he further argues that, in light of the flawed eyewitness testimony provided by Williams at trial evidence of the traffic stop would have independently corroborated applicant’s alibi and, therefore, would have altered the outcome of the trial…

…In view of the totality of the circumstances, we agree with the hearing justice’s conclusion that Oddo was not provided with enough details to investigate the stop before trial or to allow him to make a good faith request for a continuance pending the outcome thereof. We are satisfied that the hearing justice properly rejected the testimony elicited from Hazard and his family, which was riddled with inconsistencies and mendacities, and chose to believe Oddo’s recollection of these events.

The hearing justice also concluded that the applicant deliberately failed to make a timely disclosure of the traffic stop for the purpose of avoiding any investigation, at or near the time of the stop, that seemingly would establish that he was not in the vehicle and place him, by inference, in Rhode Island at the time of the murder. Simply put, this Court will not fault counsel for his client’s deliberate attempt to withhold potential exculpatory information; Strickland does not require counsel to figure out why the client is not forthcoming. Accordingly, Oddo’s failure to develop the lead that the applicant may or may not have provided about the traffic stop does not rise to the level of constitutionally deficient assistance of counsel. Because the applicant has failed to show that Oddo’s performance fell below the objective standard of reasonableness, we need not reach the remaining prong of the Strickland test.

Wyatt Detention Facility Fires its Director

After significant local and national news coverage about the tragic death of a detainee, Hiu Liu “Jason” Ng, the board of the Wyatt Detention Facility last night fired its executive director and his management firm, stressing his role in creating economic problems for the Central Falls prison.

In a sweeping denunciation, the Central Falls Detention Facility Corporation board unanimously passed a series of motions that terminated Anthony Ventetuolo Jr. and his Warwick-based real estate management firm, Avcorr Management LLC.

Bruce Corrigan, board vice chairman, issued a blistering condemnation of Ventetuolo and accused him of trying to intimidate the newly reorganized board by bringing in a video photographer, stenographer and lawyers to meetings.

He also accused Ventetuolo and various spokesmen that he has employed of questioning the intelligence of the board members — working-class people, including two retired firefighters, a prison guard, a janitor and a factory floor manager.

Meanwhile, Corrigan said, under Ventetuolo’s management, the city-owned jail continues to bleed money and costly criminal and civil investigations have been launched into the death of a Chinese national who died while in Wyatt custody last summer.

“While all this exists, Avcorr has disappeared and provided us with no answers,” he said. “What we need now is leadership.”

Neither Ventetuolo, nor his lawyer, Joseph J. McGair, of Warwick, attended the board meeting. Afterward, McGair, who was reached by telephone, was highly critical of the board and its actions. He accused the board of carrying the water for Mayor Charles D. Moreau, who has been intent on ousting Ventetuolo and his firm.

“I think this is reckless,” McGair said. “We have tried to cooperate with them since day one. They aren’t interested in cooperating with us. They are interested in a political witch hunt.”

McGair said he has no intention of going to court on Tuesday to seek a restraining order that would block the board from terminating Ventetuolo and Avcorr. But he said that the firing is illegal and a court battle will ensue.

The board voted to have Warden Wayne Salisbury Jr. and Tammy Novo, the jail’s chief financial officer, handle all of Wyatt’s “operational and administrative matters.” Those duties include having Salisbury and his staff secure all documents, disks and corporate assets belonging to the board or jail that are in Ventetuolo’s possession.

This move comes on the heels of a federal lawsuit filed by Ng’s family against Wyatt and others.

Biography of Matthew Jerzyk

After graduating magna cum laude from Brown University in 1999, Matthew spent a decade fighting for justice and to advance the common good. As a criminal justice consultant, he advised the Governor’s Commission on Race, Police and Community Relations, briefed the Department of Justice and co-wrote legislation creating a civilian review board in Providence. Matthew then became the founding executive director of Rhode Island Jobs with Justice, a labor and community coalition with over forty organizational members. In that position, Matthew developed strategic initiatives to benefit working families including a reform of government tax stabilization policies to include affordable housing, worker protections, higher wages, increased benefits, local hiring and increased use of minority and women contractors. Matthew also worked as a communications and government relations organizer for District 1199 of the Service Employees International Union (SEIU) where he crafted legislation and developed public relations strategies to win collective bargaining rights for home-based child care providers. He also used his community and union organizing skills in the political area. In 2002, he was the campaign manager for Providence City Councilman Miguel Luna and, in 2004, he ran the successful campaign for State Representative Grace Diaz, the first Dominican-American woman elected to state office in the history of the United States.

In 2008, Matthew received his Juris Doctorate from Roger Williams University School of Law. While in the honors program at the law school, Matthew started the law school’s first chapter of the American Constitution Society and received recognition for his efforts to change the name of the law school. In 2008, the student bar association gave him an award as the best student organization president of the year. Throughout law school, Matthew worked as a law clerk at Motley Rice LLC where he focused on litigation against the lead paint industry in Rhode Island and dozens of other jurisdictions in addition to working on complex litigation involving environmental contamination and corporate misconduct.

Matthew is an attorney with a practice in medical malpractice, catastrophic injury, products liability and workers rights at DeLuca and Weizenbaum, Ltd. in Providence, Rhode Island.  He is admitted to practice in Rhode Island and Massachusetts. His professional memberships include the Rhode Island Bar Association, the Massachusetts Bar Association, the American Constitution Society, the American Association for Justice and the American Civil Liberties Union.

Matthew created the Closing Argument legal blog in 2009 after selling the award-winning RIFuture.org political blog which he created and edited from 2005 through 2009.  He has appeared in the Wall St. Journal, the Phoenix, the USA Today, the Providence Business News, the Providence Journal, Newsmakers, NPR’s All Things Considered, the Democratic National Convention, NBC 10 News Conference, Daily Kos, MyDD.com and was named 1 of the most 8 notable Rhode Islanders in 2008.Matt’s law review article “Gentrification’s Third Way” will be published in the 2009 Summer edition of the Harvard Law and Policy Review.  Email Matt here.

What Works for Lawfirm Websites

In the current issue of the ABA Journal, there is an interesting look at what works for lawfirm websites:

Websites have become the shingles, business cards and phone-book ads of modern lawyering.

Even law firms that don’t expect much interest from the Internet crowd are being pressed to put up some sort of site, including one called “the world’s worst” by its Aussie firm owners.

But what makes a good website? In many ways, it depends on what the site owners want it to do.

We asked several experts in Internet presence to recommend websites they feel work well within certain categories. Their choices are meant to be exemplary, not exhaustive.

Here’s what our panelists recommend:

Branding, Burkey Belser

Solo, Susan Cartier Liebel

Innovation, Tom Mighell

Virtuality, Richard Granat

All Business, Neil J. Squillante

Youth Appeal, Rex Gradeless

Justice Thomas Decries “Rights”

Before a group of high school students, Supreme Court Justice Clarence Thomas revealed a real lack of enthusiasm for the Bill of Rights.

“Today there is much focus on our rights,” he said. “Indeed, I think there is a proliferation of rights. I am often surprised by the virtual nobility that seems to be accorded those with grievances. Shouldn’t there at least be equal time for our Bill of Obligations and our Bill of Responsibilities?”

Where would I even start?

DOJ Releases Torture Memos

The Justice Department released memos this week from the Bush administration detailing harsh interrogation methods used by CIA officers on terrorism suspects. Read them here.

The DOJ noted, in a press release, that Holder left open the door to future prosecutions by saying that CIA officials “who acted reasonably and in good faith on authoritative legal advice from the Justice Department that their conduct was lawful, and conformed their conduct to that advice, would not face federal prosecutions for that conduct.”  President Obama also issued a similar statement that, “In releasing these memos, it is our intention to assure those who carrying out their duties relying in good faith upon the legal advice from the Department of Justice that they will not be subject to prosecution.”

Here is what the ACLU had to say about it:

To restore America’s commitment to human rights, we must demand a thorough criminal investigation. Tell Attorney General Eric Holder to appoint an independent prosecutor to investigate the detainee abuse.

Click here to take the ACLU’s Action Alert.

More pointedly, here is Amnesty International:

In a pivotal moment in our call for accountability, yesterday the Obama administration finally released the four infamous memos crafted to provide legal cover for the U.S. torture program. You and I know there is no legal form of torture. But Obama wants us to believe that “this is a time for reflection, not retribution.”

We’ve done plenty of reflecting, and the information in the memos only confirms what we’ve known all along. Torture is illegal under both domestic and international law and no set of legal memos can change that.

Click here to take Amnesty International’s action alert.