This week’s highlights
- After a judge made disparaging comments on accidental livestream, a high profile defense attorney plans to file an ethics complaint
- A lawyer who used Zoom’s whisper feature to feed answers to a client is ordered to receive counseling
- The Missouri supreme court decided that the use of video testimony violated the defendant’s Sixth Amendment right to confrontation
- Houston company is hit with a lawsuit after allegedly failing to safeguard medical records and sensitive data from a September 3 cyberattack
- Facebook loses bid to dismiss FTC anti-trust vote over claims of bias, a major blow to tech anti-trust lawsuits
Judge must take sensitivity training and receive counseling after accidentally broadcasting disparaging comments
A Chicago judge was unaware that his comments were being broadcast on YouTube as he made insulting comments about Jennifer Bonjean, a high-profile criminal defense attorney who was seeking to overturn her client’s criminal conviction.
Judge William B. Raines made comments such as “Can you imagine waking up next to her every day? Oh, my God!” and “Did you see her going nuts? Glasses off, fingers through her hair, the phone’s going all over the place, it’s insane,” before he realized that his comments were being streamed live on YouTube and stopped the feed. Prosecutors in the case also responded with disparaging remarks, including “There would be a number of things wrong with my life if I was waking up next to her every day,” and comments about the appearance of Bonjean’s assistant.
Cook County Circuit Court Chief Judge Timothy Evans signed an order Tuesday reassigning Raines to other duties that likely include paperwork, the Chicago Tribune reports. He also must take sensitivity training and receive counseling on gender bias. The order said the matter will be referred to the Illinois Judicial Inquiry Board…Cook County State’s Attorney Kim Foxx said in a statement the prosecutors’ conduct “will be addressed appropriately” as a personnel matter. Bonjean told the Chicago Tribune that the prosecutors and Foxx have reached out to her to apologize. (From ABA Journal)
During the trial, Raines had grown frustrated with Bonjean for behaviors such as interrupting, shaking her head, and accusing the prosecutors of lying. Bonjean intends to file an ethics complaint against Raines.
Attorney sanctioned and ordered to receive counseling after using Zoom whisper feature to improperly assist client
Boston attorney Jeffrey Rosin must receive counseling after improperly assisting his client at a Zoom deposition in 2021. During the deposition, Rosin used Zoom’s whisper feature to secretly give his client answers. Both Rosin and his client were wearing masks at the time, obscuring their mouths.
U.S. District Judge Leo Sorokin was assigned to weigh any additional reprimand after one of his colleagues, U.S. District Judge Indira Talwani, found Rosin committed misconduct. Talwani said Rosin “exploit[ed] the remote nature of the deposition to improperly assist” a client. She disqualified Rosin from participating in the lawsuit…Sorokin noted Rosin has “suffered several consequences for his misconduct” and declined to impose any further reprimand. He was forced to withdraw from the employment case, and his firm gave up $65,000 in legal fees. (From Reuters)
Rosin will receive counseling from Lawyers For Concerned Lawyers. Judge Sorokin notes that Rosin has accepted full responsibility for his actions.
Missouri Supreme Court rules that use of video testimony violated defendant’s Sixth Amendment rights
Legal analysts are questioning the ramifications of a recent Missouri Supreme Court decision about video evidence.
The Court decided on January 11 that the use of video testimony violate the defendant’s right to confrontation. Rodney A. Smith, the defendant in the case, was convicted with the help of Zoom testimony regarding DNA evidence.
The witness who testified via video was a police lab employee on paternity leave at the time. He testified that Smith’s DNA matched what was found on a 16-year-old girl who initially accused him of sexual assault. The teenager later recanted, which made the lab employee’s testimony key to Smith’s conviction for statutory rape. Smith’s lawyer had objected to the video arrangement. The state supreme court noted that the U.S. Supreme Court has allowed one-way video testimony by child-abuse victims who would be traumatized if they could see the defendant. That case, Maryland v. Craig, said such testimony was allowed when necessary to advance an important public policy. But in Smith’s case, the witness “was neither a victim nor a child,” and the trial court had made no finding that he was unavailable, the Missouri Supreme Court said. The admission of his testimony was not harmless beyond a reasonable doubt, and the conviction must be reversed, the court said. (Via ABA Journal)
Many speculate that this case will reach the Supreme Court. In other similar cases, the use of Zoom testimony has been hotly contested. The use of remote testimony is a legal question that still does not have a definitive answer.
Lawsuit filed after cyber attack on Marker Group
After a cyber attack exposed the medical records and social security numbers, Houston-based Marker Group is being accused of failing to safeguard sensitive data. Marker Group is hired by defense firms to electronically organize fact sheets and medical records in mass torts, and at the time, they were handling data for a class action lawsuit against proton-pump inhibitor makers with nearly 14,000 plaintiffs.
“At this time it is unknown the full scope of the breach,” wrote Martin, who is in Tampa, Florida. “Marker Group has not given a fulsome disclosure in this regard. We are aware that our PPI clients had their information compromised. We are asking that plaintiffs on other MDLs remain vigilant in monitoring their personal accounts and information.” Marker Group did not respond to a request for comment but, in its statement disclosing the breach, said the cyberattack was “associated with past and ongoing litigation matters in the United States.” The firm said there was no evidence the hacked information had been misused but disclosed the breach “out of an abundance of caution.” (Via Law.com)
The two lead plaintiffs in the case are class members from the proton-pump inhibitor case. Both have received communications that indicate that their social security numbers and personal data are being used illegally. Their complaint seeks financial damages and injunctive relief.
Judge rejects Facebook’s attempt to dismiss anti-trust complaint and request for recusal, setting precedent for other big-tech pushback
The Federal Trade Commission’s antitrust claims against Facebook will proceed after a judge rejected Facebook’s requests for recusal and dismissal. Facebook’s motion to dismiss alleged that the FTC’s complaint was improper because Chair Linda Khan has shown a strong bias and prejudice towards the company.
However, the judge found that Khan’s track record and published views about antitrust laws and technology do not constitute a personal bias against Facebook or its parent company, Meta.
“Although Khan has worked extensively on matters relating to antitrust and technology, including expressing views about Facebook’s market dominance, nothing the company presents suggests that her views on these matters stemmed from impermissible factors. Indeed, she was presumably chosen to lead the FTC in no small part because of her published views,” Boasberg wrote. The judge’s ruling doesn’t bode well for similar attempts by Big Tech to force recusals of antitrust enforcers. (Via Law.com)
Amazon has also filed a similar petition for recusal against Khan in their antitrust case. The FTC is currently reviewing the retailer’s proposed acquisition of the Hollywood studio MGM. This decision in Facebook’s case seems to indicate that Amazon’s chances of success are low.