The Legal Intelligencer Blog

Prevailing Parties Do Not Have to Appeal After All

A little over three years ago, in March 2006, the Pennsylvania Superior Court held, in the case of Basile v. H&R Block, that a defendant who had received the ultimate relief it sought — entry of summary judgment in its favor in a class action — was nonetheless required to file a cross-appeal if it wished to preserve its right to challenge the class certification order.  In a prior appeal in Basile, the Superior Court had vacated the entry of summary judgment and sent the case back to the trial court, which subsequently granted Block’s motion to decertify the class.  On the second appeal to the Superior Court, that court held (in a 6-3 en banc opinion) that Block’s decertification motion should not have been granted because, by not challenging the certification order in a cross-appeal in the prior appeal from the summary judgment order in Block’s favor, Block had waived its right to challenge the certification order.

In an article for The Legal Intelligencer (March 22, 2006), my colleague Carl Solano and I noted that the Superior Court’s ruling “puts appellate practitioners in a quandary — do they follow the cardinal rule of appellate practice that only an aggrieved party can file an appeal?  Or, do they file protective cross-appeals from every adverse ruling, even after prevailing on the ultimate merits of a case, in order to preserve the right to challenge those subsidiary rulings that went against them?”  Solano and I contended that the Pennsylvania Supreme Court should grant review of the case “and once again reaffirm that prevailing parties need not file an appeal or cross-appeal from subsidiary rulings when they do not seek to expand the relief they have obtained in the trial court.”  Now, in a unanimous opinion issued June 23, the Pennsylvania Supreme Court has done just that.

The Supreme Court had previously vacated the Superior Court’s 2006 opinion in Basile in a per curiam order that required the Superior Court to “specifically discuss” two Pennsylvania Rules of Appellate Procedure, two relevant precedents, and “and any other related precedent.”  In a 2007 opinion following the remand, the Superior Court complied with the Supreme Court’s order, but it reaffirmed its prior holding.

Block once again petitioned for allowance of appeal to the Supreme Court, which granted the petition and, earlier this week, issued a short, 8-page opinion reversing the Superior Court.  In its opinion, written by Justice Jane Cutler Greenspan, the court initially held that, as a factual matter, the Superior Court simply was wrong: Block had cross-appealed on the certification issue when Basile appealed the grant of summary judgment to Block.  Moreover, the court held, “the Superior Court incorrectly applied Pennsylvania law by holding that Block was required to file a cross-appeal on the class certification issue.” The court went on to conclude that, because Block was the prevailing party at the time of the earlier appeal, “it was not required to file a protective cross-appeal on the issue of class certification.”

Three of the five justices participating in the decision expressly joined the majority opinion.  Two justices, (Thomas G. Saylor and Max Baer), while agreeing with the outcome of the case, concurred separately, on the ground that the court should consider taking its ruling a step further and prohibit protective cross-appeals.  Saylor noted some of the complex issues involving waiver and judicial efficiency that could arise if cross-appeals were either entirely prohibited or permitted in some limited circumstances, but he reserved judgment on which solution would be best.  Baer indicated in his concurrence that he joined the majority opinion, but he also advocated adoption of the position that “a non-aggrieved party should not be permitted, let alone required, to file a protective cross-appeal.”

As the concurrences by Saylor and Baer point out, the court’s decision in Basile does not definitively resolve the issue of prevailing parties filing protective cross-appeals.  In correcting the Superior Court’s error, the Supreme Court has reaffirmed that only aggrieved parties need file an appeal or cross-appeal to avoid waiver of issues on appeal or in later proceedings in the same case.  However, unless and until the court adopts the view of the concurring justices, prevailing parties likely will file protective cross-appeals (as Block in fact did in this case) when they believe it is in their interests to do so, though parties choosing not to do so no longer face the prospect of waiver, as they did under the Superior Court’s decision in Basile.

One interesting side note to the case: Two of the seven current justices on the Pennsylvania Supreme Court were members of the Superior Court’s en banc panel that decided Basile; both voted with the majority that held that Block had waived its right to appeal the certification order.  Of course, neither of those Justices participated in the Supreme Court’s adjudication of the case, but it is interesting to note that the remaining five members of the Court had no qualms about reversing two of their current colleagues.

This posting is intended only to inform, not to provide legal advice; and readers should seek professional advice for specific applications of the information.

Bruce P. Merenstein
Schnader Harrison Segal & Lewis LLP
www.schnader.com

GCs, in Survey, Say Firms Are Bluffing When It Comes to Service, Cost

By Gina Passarella
Of the Legal Staff

For all the talk about change in the legal industry, corporate counsel are finding it hard to believe that outside firms are serious about rethinking their approach to client service and billing.

In a survey released Tuesday by Altman Weil, 75 percent of the responding chief legal officers rated their law firms between zero to four on a 10-point scale, indicating their opinion that firms had little or no interest in change. Only 5 percent of the respondents ranked their outside law firms between eight to 10, with 20 percent falling somewhere in the middle.

“This is a dramatic vote of no confidence from chief legal officers,” Altman Weil Principal Daniel J. DiLucchio Jr. said in a statement. “Either many law firms just don’t understand that clients today expect greater value and predictability in staffing and pricing legal work, or firms are failing to adequately communicate their understanding and willingness to make real change. In either case, it’s a big problem.”

In terms of how much pressure chief legal officers said they were putting on firms to change their value proposition, the results varied. About 25 percent rated the pressure they were placing on outside firms as high, 37 percent put it at a mid-range and 38 percent said their pressure on outside law firms was low, according to the survey.

One type of change that is accelerating is the use of non-hourly billing.

For 2008, 73 percent of respondents said 1 to 10 percent of their law firm fees were non-hourly with 27 percent saying more than 10 percent were non-hourly. In 2009, 57 percent of departments expect to pay between 1 to 10 percent in non-hourly billing and 43 percent will spend more than 10 percent of their budgets on such arrangements.

The survey also showed corporate counsel will decrease the use of outside counsel in the next year and will reduce their in-house staff size.

Forty percent of respondents, up from 26 percent last year, said they would give less work to outside firms this year. Since the survey was first conducted in 2000, that number had never risen above 20 percent until last year.

Twenty-seven percent of the respondents have already cut the size of their law department and another 9 percent said they could do so by the end of the year. Other types of lawyers and legal staff have been cut as well, the survey showed. Fifteen percent of law departments cut contract lawyers, 21 percent have cut paralegals and 26 percent cut support staff.

“This combination of inside and outside reductions means not only that in-house lawyers will assume greater workloads, but also that chief legal officers will need to become more strategic about triaging work, allocating resources, and, in some cases, tolerating higher levels of risk,” DiLucchio said. “And when they do hire outside counsel, you can bet that they will be shopping for value.”

The survey also found that the importance of price when hiring outside counsel decreased as the importance of the work goes up and there is a direct correlation between the importance of the firm’s capabilities and the importance of the matter. While that wasn’t surprising, DiLucchio said in the statement, he did find it surprising that CLOs said the importance of the relationship with the outside firm was the same regardless of whether the matter was commodity work or critical work.

Are Waivers Available to Lawful Permanent Residents With ‘Aggravated Felony’ Convictions Under the INA?

An issue of significant concern for some lawful permanent residents is the impact of a criminal conviction on their immigration status.  That is, could certain types of felonies subject those individuals to immediate removal proceedings, or is there still a waiver available to them under the Immigration and Nationality Act?  A waiver under the former Section 212(c) of the INA is available to those lawful permanent residents with “aggravated felony” convictions who pleaded guilty or who were convicted after trial prior to April 24, 1996. (INS  v. St. Cry.)  Whether a waiver is available to an individual who availed himself of the right to trial depends on the federal circuit court of appeal with jurisdiction over the court. A waiver under 212(c) is available to lawful permanent residents with convictions for crimes involving moral turpitude who pleaded or went to trial prior to April 1, 1997.

When determining eligibility for Section 212(c) relief based on a plea, the starting point is the date that the plea was agreed to by the individual.  In many criminal jurisdictions, the plea is agreed to before sentencing. Sometimes the plea is orally agreed to by the defense and the prosecution prior to going to court and putting the agreement on the record.  The significant date is the date that the plea was agreed to by the parties, not necessarily when the criminal judge accepted the plea. A complete copy of the record of conviction should be obtained to determine the exact date of the plea agreement.  In addition, to be eligible for 212(c) relief, the individual must not have been convicted and served more than five years in prison after Nov. 29, 1990.  If the individual was convicted before Nov. 29, 1990, and served more than five years after this date, he or she is still eligible for 212(c) relief.   An individual who was convicted after Nov. 29, 1990, is ineligible for 212(c) relief if he has served more than five years in prison.

Lastly, to be eligible for 212(c) relief when the individual is charged under Section 237 or the former Section 241, the charge of removability must have a statutory counterpart in section 212.   An “aggravated felony” under Section 237 may not necessarily have a statutory counterpart in Section 212.     Nevertheless an argument can be made for fitting many aggravated felonies into the definition of a crime involving moral turpitude in Section 212.   In general, in order to establish a claim under 212(c), the equities of granting the waiver need to outweigh the negative aspects of the particular case.  This needs to be done with the use of sufficient supporting documentation by an astute criminal defense or immigration attorney on behalf of the lawful permanent resident seeking the waiver under the former Section 212(c).  The facts of the particular case, including the lawful permanent resident’s prior arrest/criminal history, if any, could obviously affect his or her prospects of prevailing on the 212(c) claim.  That being said, a lawful permanent resident who is convicted of an “aggravated felony” may be subjected to removal proceedings. However, the availability of the 212(c) waiver still offers him/her some glimmer of hope.

Rob C. Tonogbanua, Esq.
Dickie McCamey & Chilcote, P.C.
www.dmclaw.com

U.S. Supreme Court Establishes New Standard for Judicial Recusal

On June 8, the U.S. Supreme Court issued its opinion in Caperton v. A.T. Massey Coal Co. Inc., establishing a new standard for judicial recusal. In 2002, a West Virginia jury found A.T. Massey Coal Co. liable to Hugh Caperton and others on fraudulent misrepresentation and other claims, awarding $50 million in compensatory and punitive damages. In anticipation of Massey’s appeal to the state Supreme Court, Don Blankenship, Massey’s chairman, threw his financial support behind Brent Benjamin, an attorney running for a seat on that court in West Virginia’s 2004 judicial elections, contributing more than $3 million to Benjamin’s campaign. Blankenship’s contributions exceeded the total contributions by all other Benjamin supporters combined, and were three times as much as Benjamin’s own campaign committee spent, helping Benjamin win the election with 53.3 percent of the vote.

On appeal, the West Virginia Supreme Court reversed the $50 million verdict against Massey in a 3-2 decision. Caperton moved for rehearing and for Benjamin’s recusal three times. Each time, the court affirmed the reversal of the verdict and each time Benjamin denied the motion for recusal on the grounds that there was no objective evidence that he was biased.

The U.S. Supreme Court considered whether Benjamin’s failure to recuse himself violated the Due Process Clause. In a 5-4 opinion authored by Justice Anthony Kennedy, the court reversed the West Virginia Supreme Court’s decision. The court noted that historically a court could find a constitutionally unacceptable bias sufficient to invoke the Due Process Clause in very limited circumstances typically involving the judge’s personal interest in the case. In those instances, the Supreme Court noted that the inquiry regarding the necessity for recusal must be objective – a court must not inquire into whether a judge was actually biased for some reason, but rather whether the average judge in that position is likely to be biased.

On those grounds, the court rejected Massey’s argument that Benjamin’s reason for denying the recusal motions – that Benjamin’s own analysis concluded that Caperton could not provide any objective evidence that Benjamin was actually biased – was correct. The court noted that judges are asked every day to consider the existence of their own personal bias. It is because of the frequency and the complexity of such self-analysis that an objective standard is required. The court agreed with Caperton’s argument – that the extraordinary nature of Blankenship’s financial contributions to Benjamin’s campaign created a constitutionally intolerable “probability of bias.” While Benjamin would not realize a direct, personal financial gain, the court decided he would certainly feel a “debt of gratitude” to Blankenship and Massey. Considering the size of the contribution and its likely effect on the election outcome, the court held that Benjamin had a duty to recuse himself.

Chief Justice John Roberts issued a blistering dissent, joined by Justice Antonin Scalia, Justice Clarence Thomas and Justice Samuel Alito. The dissent noted that the majority had introduced new grounds for recusal – “probability of bias” – that would prove virtually impossible to limit in any meaningful way. The dissent noted that the majority opinion would require judges to act as political scientists, economists and psychologists in determining the degree to which campaign contributions affected the outcome of a campaign. Thus, the dissent argued, “the cure is worse than the disease” in that the new standard would increase the number of recusal motions, leading to further erosion of public confidence in judicial impartiality – the very ideal the majority claimed its holding was meant to protect.

Ryan J. Fleming, a member of Stradley Ronon Stevens & Young's employment and labor practice group, focuses on employment litigation including discrimination and wrongful discharge claims and counsels employers on a variety of employment-related issues.

Blog postings are not legal advice and do not create an attorney-client relationship. Materials posted here represent the views of the poster or commenter and not the views of Stradley Ronon Stevens & Young, LLP or its clients.

Ryan J. Fleming
Stradley Ronon Stevens & Young, LLP
rfleming@stradley.com
www.stradley.com

 

City Council Gets Vote on City's Criminal Justice Stakeholder Group

By Amaris Elliott-Engel
Of the Legal Staff

Executive and judicial branch members of the group that bring leaders in the city's criminal justice system together to coordinate policy voted unanimously to add a voting City Council representative to the Criminal Justice Advisory Board.

The CJAB was created just about a year ago after Mayor Michael Nutter took office.

Anthony Radwanski, a spokesman for City Council President Anna Verna, said Verna must appoint a City Council member to sit on the CJAB and no decision has been made yet about which City Council member will sit on the CJAB.

"Because Council provides funding for the criminal justice system, we think it's appropriate for Council has a seat on the board," Radwanski said.

CJABs have been encouraged across the state by the Pennsylvania Commission on Crime and Delinquency to coordinate policymaking. Counties that have CJABs are able to qualify for criminal justice pass-through funding from the federal government that otherwise would not be available. Common Pleas President Judge Pamela Pryor Dembe and Deputy Mayor for Public Safety Everett Gillison co-chair the CJAB. The CJAB is coordinating work on police overtime, prison overcrowding and a mental health court.

During the monthly CJAB meeting Tuesday, City Councilman Curtis Jones Jr. presented about his interest in the expansion of community courts in Philadelphia based upon a community court in the Red Hook neighborhood of Brooklyn, New York. A CJAB subcommittee is being formed to look at expanding community courts in the city. Jones and Gillison traveled to visit the Red Hook court.

District Attorney Lynne Abraham, however, warned that there was never the political will in the past to expand the community court in Philadelphia Municipal Court that covers Center City and a little beyond.

How Aware of you of Your Own Biases? Implications for Trial

Understanding Your Own Bias

As the title of this post asks, how aware are you of your own biases? You, as most other people, are probably not. The truth is that all of us have them. No exceptions. So, how do we become aware of our own biases? Luckily, there is a test specifically designed to evaluate just that. It is called Harvard’s Implicit Association Test (www.implicit.harvard.edu). Take it. You will probably learn something about yourself that you probably didn’t really want to know, but, if you are a trial lawyer, or anyone who interacts with people on a regular basis, you probably should.

The fact of the matter is that biases, whether we are aware of them or not, cause us to act, making choices based on our bias as opposed to other and more rational reasons. It may compel some people to hire or not hire a person, to cross to the other side of the street or to strike a potential juror.

The Research on Bias

What does the research say about how bias comes about? One thing that is clear is that it starts very young. Kids as young as 3 years old start to identify themselves with social categories and express preferences (Aboud & Amato, 2001) and negative inter-group attitudes emerge between ages 4 and 5 (Bigler, 1995) -- Think "cooties." What is more disturbing, although not surprising, is that kids from socially disadvantaged groups are found to be more likely to show preference for other groups perceived to be more valued by the mainstream (Dasgupta, 2004).

The point is that biases can be damaging, are developed extremely early and become so well imbedded into our subconscious by adulthood, we are hardly aware of them.

Implications for Trial

So now we know that we all have biases, and that some of us hold biases against our own demographic group. What does it all mean in the jury context? Well, I recently read an interesting article in the September 2008 issue of American Psychologist called "Race and Jury Selection." The authors, Samuel Sommers and Michael Norton discussed how stereotypes are likely to affect judgments made on limited information, under cognitive overload and under time pressure (sounds like jury selection to me). They discussed some of the social implications of attorney tendencies to strike people based on race (Batson notwithstanding).

It got me thinking, though, not just about the social implications related to making decisions based on race, but strategic implications as well. Specifically, do biases lead trial teams to make the wrong striking choices? As an example, Sommers and Norton discussed research that debunked the myth that that black jurors will be unwilling to convict someone within their own racial group. There is simply more to it than that. Context needs to be considered.

The mock jury research I have conducted has revealed, time and time again, that external variables such as race and gender are not predictive of verdict orientation-- attitudes and experiences are. On the other hand, time and time again, I see trial teams make jury selection judgments based in external characteristics, relying on what they can easily see and the "gut" reaction to a person (which typically comes from an unconscious bias or stereotype).

So, take the Implicit Association Test, and the next time you are in jury selection ask yourself this question before you make a strike. "Am I making this strike because this juror is likely biased against my client or because I am likely biased against this juror?"

Melissa M. Gomez, Ph.D. is a jury consultant and owner of MMG Jury Consulting, LLC. She holds a Ph.D. in psychology from the University of Pennsylvania. Her experience includes work on more than 100 jury trials in Philadelphia and across the country, with a focus on the psychology of juror learning, behavior and decision-making. She has more than a decade of expertise in research design and methodology, as well as in behavioral and communication skills training.

This posting is for general informational purposes only and should not be construed or interpreted as advice specific to any matter. Each case is different and no strategy applies uniformly to all.

If you have any questions regarding jury psychology that you would like to see addressed in this blog, please contact Dr. Gomez at melissa@mmgjury.com or call 215-292-7956.

Melissa M. Gomez, Ph.D
MMG Jury Consulting, LLC
www.mmgjury.com

Who Said Capital Markets Work Was Dead?

By Gina Passarella
Of the Legal Staff

K&L Gates has formed a new practice group around the changing capital markets structure.

The firm said today it has formed an international capital markets reform group to provide expanded services to clients as new capital markets regulatory reform measures are introduced.

Daniel F. C. Crowley, a partner in the firm's Washington, D.C., public policy and law practice, will lead the group.

"In the past, it was sufficient for financial services industry participants to focus on policy developments relating only to specific business sectors," Crowley said in a statement. "However, it is clear that such an approach will be insufficient in the weeks and months ahead because the reforms will occur at a macro level and will impact all financial services interests."

The practice will consist of partners who handle matters in the areas of broker-dealer/securities trading, commodities/futures, depository institutions, derivatives/securitization, hedge funds, insurance/annuities, investment banking, investment management, mortgage banking/consumer finance and public policy.

As part of this new group, the firm issued a 10-page alert this month on President Obama's plan for regulating the financial services arena.

The capital markets reform group includes lawyers from the firm's Washington, New York, London, Boston, and San Francisco offices, among others.

FJD Honored Twice Last Week for Administration of Justice Efforts

By Amaris Elliott-Engel
Of the Legal Staff

The First Judicial District was honored last week by the National Judicial College for enacting reforms that raised its performance from the second-slowest court in the country in moving civil cases to being a national leader in innovative court programs. The FJD also was honored by the National Association for Court Management for the court's residential mortgage foreclosure diversion pilot program.

The Advancement of Justice Award has been given annually for five years by the NJC, a group that offers around 90 courses to judges every year. The NAMC's 2009 Justice Achievement Award is an award established to publicly recognize projects that "enhance the administration of justice and can be replicated in other jurisdictions," according to a news release.

Bill Dressel, president of the NJC and a former Colorado state judge, said the FJD was honored this year because it reformed itself by leaps and bounds from a time when it took seven years for civil cases to get to trial. Now with the day-forward case management system, cases get to trial within one to two years, he said.

The court's fraudulent conveyance program, commerce program for business litigation, residential mortgage foreclosure program and its civil electronic-filing system were also reasons for the Philadelphia court system to receive the honor, Dressel said.

"They've made the courts accessible. They've made them timely," Dressel said, adding, "You learn from the past and you move forward. This court continues to move forward."

The award was kept a secret from Philadelphia Common Pleas President Judge Pamela Pryor Dembe until it was announced Monday night, said Philadelphia Common Pleas Judge Rosalyn K. Robinson, who as co-chairwoman of the Common Pleas' education committee helped organize the NJC's meeting in Philadelphia this week.

Dembe said she almost burst into tears when the award was announced. Dembe was first elected judge in 1989, when the bench was demoralized by the case backlog and by the Roofers scandal in which a dozen judges were implicated in a massive bribery scheme involving Roofer's Union officials giving out envelopes of cash as Christmas gifts to judges, she said.

Dembe, who was elected as president judge just last fall, said she was pleased that the FJD was recognized for its multiple innovations and as more than "just a one-trick pony."

A Philadelphia judge and a Philadelphia attorney separately received Advancement of Justice Award.

Edward W. Madeira Jr., chairman emeritus of Pepper Hamilton, and Philadelphia Common Pleas Senior Judge Alfred J. DiBona Jr. also received awards.

Madeira was honored because of his work to ensure the independence of the country's judiciary and to have adequate funding for the courts, Dressel said.

DiBona was honored for several initiatives to improve justice, including his work with an American Bar Association commission on case management that DiBona helped involve in improving Philadelphia's case management, Dressel said.

Forty judges are in the city this week for a course on alternative dispute resolution.

Governor Signs Bill Creating Pennsylvania Mini-COBRA Law Affecting Small Employers

On June 10, Gov. Edward G. Rendell signed into law a Pennsylvania “mini-COBRA” bill that will provide for continued health insurance in a manner comparable to the federal COBRA law for employees of small employers in Pennsylvania. The new law will have two important effects. First, it will require small employers’ group health plans that are not subject to the federal COBRA law (those employers with between two and 19 employees) to offer continued group health insurance to employees and qualified dependents of employees who experience a qualifying event, including death of a covered employee, termination of a covered employee’s employment (other than for the employee’s gross misconduct) and a spouse’s divorce or legal separation from the covered employee. Such continuation coverage must be offered at the same level of benefits that the employee received prior to the qualifying event, and for a period of up to nine months from the date of the qualifying event. Coverage will be offered at the employee’s or the qualified dependent’s expense (up to 105 percent of the normal cost of coverage).

The law will exclude from continuation coverage any individual who was not covered by the employer’s group health plan for at least three months prior to the qualifying event; who is eligible for coverage under Medicare; or who is, or could be, covered by another group health insurance arrangement.

Second, and perhaps more importantly, the Pennsylvania mini-COBRA law will enable covered individuals to take advantage of the premium subsidy provisions of the American Recovery and Reinvestment Act of 2009, or ARRA. Under ARRA, any employee of a small employer who becomes entitled to continuation coverage under the Pennsylvania mini-COBRA law by virtue of his or her involuntary termination from employment will be entitled to a federal government subsidy of 65 percent of the premiums for the coverage, so long as the employee pays the remaining 35 percent. An employee will only be eligible for the subsidy if his or her employment termination occurs after the effective date of the new law, which, according to the text of the bill, will be the 30th day after signature by the governor – or July 10 – and before Jan.1, 2010. Therefore, an employer may wish to defer the employment termination of an employee until the expiration of 30 days following the governor’s signature to allow the employee to receive the subsidy.

The new law includes notification requirements applicable to employers, employees and dependents, plan administrators and insurers. The group policy must provide notice of the new law to policyholders within 45 days of the effective date of the law. Employers of covered employees must notify the employee or dependent, the insurer and the plan administrator (unless, obviously, the plan administrator is the employer) of a qualifying event (and, for the employee or dependent, his or her rights under the law) within 30 days of the qualifying event. The covered employee or eligible dependent must notify the plan administrator of his or her election of coverage within 30 days of receiving the notice of rights from the employer.

Employers with between two and 19 employees should review the requirements of the new law and revise their policies to ensure compliance.

Ryan J. Fleming, a member of Stradley Ronon Stevens & Young's employment and labor practice group, focuses on employment litigation including discrimination and wrongful discharge claims and counsels employers on a variety of employment-related issues.

As co-chairman of Stradley Ronon’s employee benefits & ERISA practice group, James Podheiser advises for-profit and not-for-profit organizations and individuals in the areas of employee benefits law, deferred compensation arrangements, stock plans, employee vs. independent contractor issues and all aspects of ERISA.

Blog postings are not legal advice and do not create an attorney-client relationship. Materials posted here represent the views of the poster or commenter and not the views of Stradley Ronon Stevens & Young, LLP or its clients.

Ryan J. Fleming
RFleming@stradley.com
Stradley Ronon Stevens & Young, LLP
www.stradley.com

Fumo Loses Bid for New Trial

By Shannon P. Duffy
U.S. Courthouse Correspondent

Former state Sen. Vincent J. Fumo has lost his bid for acquittal or a new trial now that U.S. District Judge Ronald L. Buckwalter has handed down a 129-page opinion that rejects all of the post-trial motions of both Fumo and his co-defendant, Ruth Arnao.

Significantly, Buckwalter found there was no merit to the defense claims of juror misconduct based on the Facebook and Twitter comments made by juror Eric Wuest while deliberations were underway.

"Although Wuest had violated the court’s instruction to not discuss the case outside of the jury room, his Facebook postings, like his Twitter comment, were nothing more than harmless ramblings having no prejudicial effect. They were so vague as to be virtually meaningless," Buckwalter wrote.

Fumo, 66, was convicted on all 137 counts, including three fraud schemes and a cover-up scheme. Arnao, his longtime aide, was convicted on all 45 counts.

The ruling paved the way for Fumo's sentencing, scheduled for July 14.

Prosecutors said Fumo could face a prison term of 21 to 27 years under the federal sentencing guidelines. But because the guidelines are now merely advisory, Buckwalter is free to impose a shorter term.