Guilty Until Proven Innocent?

In Georgia, simply having undergone an investigation once can haunt you indefinitely. This is because even if a suspect is cleared by law enforcers, his records unfortunately are not. What happens is, when he tries to go on with his life, he finds it difficult to do so, for the simple reason that this part of his past keeps surfacing in background checks by prospective employers, for example, hindering the former suspect’s ability to get a job. It can also restrict his access to housing, and even his access to the schools his children attend.

A woman named Theresa is one such example. For 13 long years, she had been haunted by the ghost of a child abuse investigation, even if she had been cleared by the police. The probe stemmed from the welts and bruises that appeared on her daughter’s body, which turned out to be an allergic reaction to antibiotics. Of her going to her daughter’s school, she says, “I used to have to call ahead and let them know I was coming. I always had to get a clearance if I wanted to participate in certain activities.” Finally, late last year, the record of her investigation was cleared from public criminal records. This was achieved with the aid of Ashley Deadwyler, a Georgia Justice Project (GJP) attorney. GJP is a non-profit advocacy group that provides criminal defense for the indigent.

Now, legislators have advanced a bill that seeks to ensure Georgians will never have to endure this kind of torment again.

GJP Executive Director Doug Ammar said many Georgians still have to undergo Theresa’s ordeal, given that the state allows district attorneys to decide whether to restrict the investigation records of suspects or not, even if there never was a resulting conviction. Ammar says, "They're the ones who often prosecute the cases. They're the ones who often lose the cases. And then they get to decide whether or not it comes off your record so that you can go on with your life.”

Republican Congressman Jay Neal sponsored a bill in the Georgia House that aims to restrict law enforcers from disclosing records of dismissed charges to employers and other non-law enforcement parties. If approved, Neal says it would remove a double standard.

Courtesy of Atty. Monica Risam Nicklin

Is Edgar Rice Burroughs, Inc. Clutching at Straws?

Guest post from The Desk of Atty. Monica Risam Nicklin

Edgar Rice Burroughs is best known for creating Tarzan, the tree-swinging jungle hero, and the Mars-visiting John Carter, in 1912. In 1923, Burroughs started his own publishing company, Edgar Rice Burroughs, Inc. (ERB), and began handling his own works through the 1930s. The author’s grandchildren and great-grandchildren currently run the company.

Since the patents of many of his early works have long expired, having been created n the early 1900s, these works have been in the public domain for many years, which means that they are available for adaptation to current works. This is exactly what Dynamite Entertainment had in mind when they based a series of comic books, Warlord of Mars and Lord of the Jungle, on some of the first Tarzan and John Carter works. But ERB objected, and took the entertainment company, along with its distributor, Dynamite Forces, to court. It would appear that ERB may not have much of a legal basis for suing, but ERB’s accusations are of trademark infringement and unfair competition, not patent infringement. The lawsuit alleges that the Dynamite companies had pressed ERB for permission to run the series, but that ERB had never granted it.

Dynamite publishes several classic-character-based comic book series, featuring the Green Hornet, Zorro, the Lone Ranger and Flash Gordon, for example, and has their own series called The Boys, about a special team that polices superheroes who, due to their popularity having gotten to their heads, forget their image as role models.

Some wonder whether the lawsuit is an attempt by ERB to hold on to its status as sole owner of the rights to Burrough’s works, given the considerable financial benefits the company enjoys from licensing deals with companies such as Walt Disney. If these companies can now use these works legally without any licensing agreements, ERB could effectively be out of business. Thus, the only way for ERB to maintain their hold on these original works would be through trademark rights. The court may hold the future of ERB in its hands, and it should be interesting to see how it rules in this case.

Is the Stolen Valor Act Worth Upholding?

On the one hand, there is the right to free speech. On the other, there is the matter of degrading the honor of distinguished military service. On February 22, the justices of the Supreme Court tossed back and forth the Stolen Valor Act, a law passed in 2006 that makes it a crime to lie about military medals, and after about an hour of discussion, deemed it worth upholding.

The deliberations had their roots in the questionable statements of Xavier Alvarez, who in 2007 was elected to the board of directors of the Three Valleys Municipal Water District. When he attended an open meeting, he declared, “I’m a retired Marine of 25 years. I retired in the year 2001. Back in 1987, I was awarded the Congressional Medal of Honor. I got wounded many times by the same guy. I’m still around.” None of which was true, since Alvarez never served in the military. The act states that it is a crime to make false statements about having, “been awarded any decoration or medal authorized by Congress for the armed forces of the United States.” Alvarez claimed protection under the First Amendment, but then his case reached the Supreme Court.

Demonstrating that there must be a limit to everything, the justices acknowledged that the right to free speech does not include calculated falsehoods that cause at least some kinds of harm. And they agreed with each other that the government has a substantial interest in protecting the integrity of its system for honoring military distinction. Nevertheless, they paid careful consideration to the First Amendment, worrying about possible damage to free speech that a ruling upholding the act might cause. In the end, Justice Anthony M. Kennedy concluded that while we must not establish a “Ministry of Truth,” he also admitted of Alvarez’s dishonesty that “I have to acknowledge this does diminish the medal in many respects.”



from the Desk of Atty. Monica Risam Nicklin