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Why Trial Should Be an Option for Corporate Defendants

The Pacific Gas & Electric Co. (PG&E) company was just convicted on 6 out of twelve felony counts relating to the 2010 San Bruno gas explosion that caused death and massive property damage because of a deteriorated portion of the pipeline. I understand that my title seems strange in light of this conclusion but keep reading. The company was charged with eleven counts of violations of pipeline safety laws and one count of obstruction. They were convicted of five of the pipeline safety violations and one obstruction count. The trial lasted over a month and jurors had begun deliberating, when in a surprising move, the prosecutors informed the court last week that they wanted to reduce the criminal penalties they were seeking from PG&E from $562 million to only $6 million. Yes, you read that correctly: an approximately 99% reduction in the amount of penalties sought. Now with a conviction they face only a maximum penalty of $3 Million. This unexpected move by prosecutors is unquestionably a significant victory for PG&E in spite of the conviction. What strikes me is that this is yet another example of a corporation reaping the benefit of going to trial to defend against a government accusation of criminal conduct, rather than plead out by reaching an expensive, non-prosecution agreement or other costly settlement.  I think it is safe to assume that during plea negotiations either prior to or after the prosecution’s indictment that the fines proposed by the federal government far exceeded $6 million.  That is because it is easy to talk tough when your evidence or theories of the case aren’t being tested in a courtroom in front of a judge or jury.  It’s one thing to champion a winning theory or your evidence in a conference room – but you put your money where your mouth is so to speak – in the courtroom.  I recently blogged about a similar situation in a criminal case brought against FedEx in which the judge dismissed some charges against the shipping company at trial and prosecutors later voluntarily dismissed all the remaining criminal charges.   The prosecutors’ request to lower the proposed fine against PG&E to $6 million is a huge shift from their original position of $562 million, and it could be compared to an individual being charged with a felony which prosecutors then later reduce to a misdemeanor in the middle of trial. But this appears to be such a drastic reduction that one has to wonder if the Government’s pursuit of such a high penalty was anything but bluffing. When more and more corporate defendants start to stand up to the government rather than automatically thinking their only option is to “cooperate” then maybe we will start to see indictments based on stronger evidence, or criminal investigations that are simply ended because there is not enough evidence to win at trial. The post Why Trial Should Be an Option for Corporate Defendants appeared first on Women Criminal Defense Attorneys.
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Controversial Louisiana Law Makes Targeting Police a Hate Crime

A new law in Louisiana makes it a hate crime to target law enforcement and emergency personnel. The bill making these professions a protected class -- dubbed Blue Lives Matter -- was reportedly proposed in response to the Black Lives Matter movement criticizing police brutality in the black community. It is the first of its kind in the country. Hate crime legislation makes punishments more severe when crimes target a protected class, such as age, race, religion, sexual orientation, national origin, or disability. Critics say that adding law enforcement to this list of protected classes dilutes the value of this type of legislation by basing it on a mutable or changing characteristic, such as a profession, rather than an unchangeable one like race or national origin. Protecting Blue Lives According to NPR, crime statistics show an overall decline in officer killings. Still, the Louisiana law making police, firefighters, emergency medical crews, and other first responders a protected class reportedly passed easily. Anyone convicted of intentionally targeting someone in this protected class will be punished more severely than previously based on the now-protected status. "Coming from a family of law enforcement officers," Louisiana Governor John Bel Edwards said in a statement. announcing the signing of the bill into law, "I have great respect for the work that they do and the risks they take to ensure our safety." State Police Superintendent Colonel Mike Edmonson expressed his support of the law, too, pointing out the heroism of law enforcement and first responders who run toward trouble when others are running away. Edmonds said, "For those individuals who choose to target our heroes, the message formalized in this legislative act should be clear and the consequences severe. On behalf of first responders throughout Louisiana, we thank the legislature and the governor for helping to make this law a reality." Diluting Hate Crime Legislation? Critics say, however, that this legislation dilutes hate crime laws by enlarging the protected class to include people who are not targeted for what they are but for what they do for a living. The Anti-Defamation League, for example, opposed the legislation and explained the basis for its opposition to what it called the "Blue Lives Matter" bill before it was signed into law. In a statement issued earlier this month, it wrote, "The ADL strongly believes that the list of personal characteristics included in hate crimes laws should remain limited to immutable characteristics, those qualities that can or should not be changed. Working in a profession is not a personal characteristic, and it is not immutable ...This bill confuses the purpose of the Hate Crimes Act and weakens its impact by adding more categories of people, who are better protected under other laws." There is something to that argument. After all, people can choose to be blue. But there is little choice about being foreign or black or having a handicap or any of the more traditional protected classes. Accused? If you are accused of a crime of any kind, talk to a lawyer. Get help with your defense. Many criminal defense attorneys consult for free or a minimal fee and will be happy to discuss your case. Related Resources: Find Criminal Defense Lawyers Near You (FindLaw's Lawyer Directory) Understanding Criminal Law -- How to Read a Statute (FindLaw's Learn About the Law) Are Judges Becoming More Critical of Excessive Force? (FindLaw Blotter) Top Legal Questions on Hate Crimes (FindLaw Blotter)
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Prior Bad Acts: Who Can Testify in Bill Cosby’s Criminal Trial?

Bill Cosby is the elder statesman of American comedy whose life has turned into a bad drama, now including a criminal case. Next month, Cosby will return to criminal court in Pennsylvania for pretrial proceedings on three charges of felony indecent assault of Barbara Constand and faces ten years in prison if convicted. Despite the dozens of accusations of abuse that have surfaced from women all over the country, this is Cosby's first criminal prosecution. The case was filed just two days before the 12-year statute of limitations on such claims in Pennsylvania expired, according to USA Today. It raises many interesting legal questions, all complex. Today, let's consider prior bad acts and whether Cosby's other accusers can testify against him. Prior Bad Acts Generally speaking, a crime cannot be proven based on a defendant's behavior in other situations. While a criminal record informs sentencing, each crime must be proven based on the facts of the case at hand and not based on evidence of similar acts in the past . But for every rule in the law, there are important exceptions because a foolish consistency is the hobgoblin of small minds. That is to say, sometimes it makes sense to consider external evidence if it is highly relevant to the matter at hand. In a case like this one, where there are about 50 women saying that Cosby drugged and touched them without their consent, the prosecution will no doubt argue that it's relevant. Prosecutors will seek to admit evidence from other women whose stories are consistent with Constand's. To the extent that there are questions about the alleged victim's credibility because she waited a year to report the crime and thus there is no physical evidence, a slew of witnesses telling the same story would certainly support her claim that Cosby drugged and touched her against her will. Admitting the Evidence Admitting evidence of prior bad acts is not a given, however. The defense will no doubt fight it, relying on precedent to show that the stories would not be considered consistent evidence. The burden of proof on prosecutors is high -- they must show the evidence is more relevant than prejudicial. Dennis McAndrews, a former prosecutor, who teaches criminal law at Villanova University explained to reporters, according to USA Today: "It's very challenging because courts are reluctant. They hold the prosecution to a tight burden to establish that (the testimony) is highly relevant, that the facts of other cases are close to the case (on trial), and that the probative value significantly outweighs the prejudicial effect." In light of this, it is not yet clear that the judge will allow the testimony of other women to prove Bill Cosby assaulted Barbara Constand, But it's certain the Cosby's defense lawyers will challenge admission of that evidence at every turn. If he is convicted, admission of prior bad acts will be a major issue in the inevitable appeal. Accused? If you have been accused of a crime, don't delay. Meet with a criminal defense attorney today. Many lawyers consult for free or a minimal fee and will be happy to discuss your case. Related Resources: Find Criminal Defense Lawyers Near You (FindLaw's Lawyer Directory) Cosby Counterclaims Against 7 Accusers (FindLaw's Celebrity Justice) Cosby Complains in Court: Insurers Threaten Defamation Claim (FindLaw's Celebrity Justice) Model Drops Playboy Assault Case Against Cosby (FindLaw's Celebrity Justice) Janice Dickinson Sues Bill Cosby for Defamation (FindLaw's Celebrity Justice)
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Top 5 Reckless Driving Issues

The dangers of driving are many and you must pay close attention when you're on the road. Not only do you risk serious injury or even death when you're distracted, but there is also the possibility of being stopped by the cops and being charged with a traffic infraction or crime. Aggressive driving and road rage are not crimes in and of themselves. But they do lead to reckless driving, which is an offense. Let's look at the top issues surrounding reckless driving. 1. How Road Rage and Reckless Driving Are Related The National Highway Traffic Safety Administration considers aggressive driving a serious danger. Aggressive driving occurs, according to the NHTSA, when "an individual commits a combination of moving traffic offenses so as to endanger other persons or property." Aggressive driving and road rage lead to reckless driving, which leads to accidents and criminal cases. 2. Is Road Rage a Crime? In some states there are added penalties for crimes that arise from road rage. According to the NHTSA two-thirds of all accidents are caused by road rage, which leads to recklessness. So keep your eyes open, signal lane changes, and breathe deep when you feel angry, t could save you time, money, and your life. 3. Distracted Driving: Would You Pass a Textalyzer? Law enforcement officers are concerned about the prevalence of phone use on the road and though there is not yet a way to examine the role of phones in accidents, there may soon be. The textalyzer will allow police to analyze the phone activity of drivers before a crash =, and New York is the first state considering adopting the technology. 4. Can My Car Turn Me In for a Hit and Run? New cars are great for their innovations but would you feel the same way if one of those developments allowed your car to call the cops on you? Leaving the scene of an accident is a crime and, depending on your car's Emergency Assist functions, your car could call the police even if you don't think you need it. 5. Texting and Driving: 5 Potential Consequences You don't want to miss a text as plans can change at any minute. But you also don't want to drive and text or you could end up in an accident or facing a reckless driving charge. In California, fees and fines stemming from a first texting and driving ticket can reach $300. Talk to a Lawyer: If you are charged with a driving offense or a crime, speak to a lawyer today. Many criminal defense atorneys consult for free or a minimal fee and will be happy to assess your case. Related Resources: Find Criminal Defense Lawyers Near You (FindLaw's Lawyer Directory) Reckless Driving (FindLaw's Learn About the Law) Distracted Driving and Texting While Driving (FindLaw's Learn About the Law) State Traffic Laws Directory (FindLaw's Learn About the Law)
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Four Superhero Women Embark to Break Open the Glass Ceiling

Once upon a time, four great women were asked to participate on a panel about the effects of gender in the courtroom at the ABA White Collar Conference but instead of simply opining about the topic- they decided to conduct their own research and find real answers.  These superhero women were: Moderator Patricia Brown Holmes, a Partner at Riley Safer Holmes & Cancila Ellen Brickman, Ph.D. Director, DOAR a litigation consulting firm Laura Colombell Marshall, Partner, Hunton & Williams LLP Joan McPhee, Partner Ropes & Gray LLP The panel was titled Women in the Courtroom: A View from the Jury Box.  I spoke to Joan McPhee last week about the study and the panel discussion, which I unfortunately missed.  She told me that when they first started to explore the topic it was disappointing to discover there was very little if any data or research on the topic.  This inspired them to conduct their own research to get to the bottom of many questions such as: How do jurors view male and female attorneys? How does a juror’s gender influence perception of attorney effectiveness? Does attorney gender have power to influence the ultimate outcome? Thankfully they had Ellen Brickman on the panel from DOAR Litigation, a Ph.D. with extensive experience in conducting juror research. A study was developed using a pool of 880 mock jurors of equal gender from major metropolitan areas from around the country.  These jurors were surveyed using two components. One was the IAT (Implicit Association Test) measuring implicit biases and the other was a survey that included an attorney opening statement case scenario.  They had the jurors read the opening statement, which was identical except one version described the attorney as female and the other described the attorney as male. The jurors then were asked questions with reference to the gender of the attorney about their perceptions of the opening statement and its effectiveness across a range of attributes.  You can read more details about the study in the PowerPoint presentation here.  The most amazing finding from this study was that male jurors have an automatic preference for male lawyers, and female jurors have an automatic preference for female lawyers.  Even more surprising, the women’s preferences were much stronger. If conducting their own research wasn’t enough, these women also conducted an attorney survey of experiences relating to gender bias. They found that 72% of female colleagues surveyed reported negative experiences with colleagues because of their gender, 69% reported negative experiences with opposing counsel, and 43% reported negative experiences from judges.  The take away is that gender bias is alive and well in our field. When I spoke to Joan she shared with me how surprised she was by certain parts of the study’s findings.  Having anticipated that gender stereotypes embedded in our culture might lead both male and female jurors to have automatic preferences for the male attorney, and to prefer the male opening statement as stronger and more effective, it was notable that male and female jurors each held a clear preference for the attorney of their own gender with the female jurors exhibiting a preference for the female attorney that was twice as strong as the male jurors’ preference for the male attorney. Given that juries are gender diverse, Joan noted that, all other things being equal, these results suggest that a gender-diverse trial team should have an edge at trial in connecting with jurors and maximizing persuasiveness.  She noted that the jurors’ preferences for the attorney of their own gender was reflected in the results of both the IAT, in the form of an “automatic preference,” and in the opening statement case scenario.  Specifically, with regard to the latter, female jurors found the female attorney’s opening statement to be clearer and more logical and to reflect greater care for the client. The reverse was true for the male jurors.  She noted that the recent ABA report on women as first chair found that, for women serving in lead counsel roles at trial, almost 70% appear for the government as prosecutors and only 30% for the defense. Joan questioned, in light of the research findings and the government’s apparent greater ability to field a strong, gender-diverse trial team, whether we are effectively “ceding an advantage to the Government.” This study suggests that the defendant has a clear disadvantage if the only female in the courtroom is at the Government’s counsel table. Ellen Brickman cautioned, based on her years of experience in working with mock juries, that jurors are sensitive to how women and minorities are treated as members of a team, and that just having a token female member at counsel table who is not playing an active role has the opposite effect and can backfire. Joan also spoke to me about the “Audition Screen” that has been written about extensively, and which involved a symphony conducting blind auditions of musicians using screens and carpeted floors to mask any information about the gender of the performers.  Orchestra directors traditionally had a strong preference for men, believing that men were better able to perform at the highest levels of the field, particularly with certain instruments that were viewed to require a level of physical strength and stamina.  The judges were shocked that one of the best performers turned out be a petite woman.  Audition screens thereafter came into more prevalent use and, when the judges’ implicit bias against female performers was walled off and removed from the selection process, the result was a dramatic increase in the number of women being chosen. What does that tell us? Joan would say that our own implicit biases may interfere unconsciously with our ability to identify and promote the strongest talent, to the detriment not only of those passed over, but also to the overall performance of the team.  In the context of a criminal trial, with our clients’ liberty on the line – if we are to field the strongest team and harness full persuasive power with a gender-diverse jury – we cannot ignore the potential role of gender in the courtroom. Joan challenged the audience and and all of us to ask, “What is going to be our trial lawyer’s equivalent of the Audition Screen?” The post Four Superhero Women Embark to Break Open the Glass Ceiling appeared first on Women Criminal Defense Attorneys.
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UK Millionaire Acquitted of ‘Accidental’ Rape

A man who claimed he accidentally penetrated an 18-year-old woman when he fell on her was acquitted of rape charges by a British jury. After brief deliberations, millionaire Ehsan Abdulaziz was found not guilty, despite some very strange explanations of what happened, according to the New York Daily News. Money Can't Buy Me Love? Abdulaziz, 46, is a millionaire property developer with an apartment in London. He was apparently out drinking at an exclusive nightclub in August 2014 and invited two women to join him at his pricey private table. Then, he offered them a ride home in his Aston Martin. They ended up at his apartment for a drink instead. The two women -- one 24 and the other 18 -- stayed the night. The younger one slept on the sofa in the living room. Abdulaziz claimed in his defense that he had sex with the older woman and in the morning just fell on the younger one. He accidentally penetrated her when he just meant to ask if she needed a t-shirt or a taxi home. The considerate older gentleman said in his defense that the woman pulled him as he was making his offer and he fell. He admitted his penis may have poked through his underwear. "I'm fragile, I fell down but nothing ever happened. Between me and this girl, nothing ever happened." As for evidence of semen? He said it was possible he had some on his hands after the sexual encounter with her friend. The young woman had an altogether different story. She said Abdulaziz raped her. She woke up in the early morning to find the man forcing himself on her as she slept on the sofa in his London apartment.What Are the Elements of Rape?In criminal law, the elements of rape are satisfied if there was 1) non-consensual sexual intercourse that was 2) committed by physical force, threat of injury, or other duress.According the the young woman's account, Ehsan Abdulaziz used physical force without her consent to commit the sexual act. By her account, rape would have occurred. However, the jury found differently ... Jury Deliberates Briefly The British newspaper, The Mirror, reported that the case took an unusual procedural turn. Twenty minutes of evidence were heard in private. The jury apparently did not spend long pondering the tale anyway, perhaps finding it tasteless. After only 30 minutes of deliberations, it rendered a verdict of not guilty. Abdulaziz was acquitted. Charged With a Crime? If you or someone you know has been accused of a crime, speak to a lawyer. As this case makes plain, a creative defense can go a long way. Get help from a criminal defense attorney. Related Resources: Browse Criminal Defense Lawyers by Location (FindLaw Directory) What Is the Role of a Jury in a Criminal Case? (FindLaw) Criminal Trial Overview (FindLaw)
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Elizabeth Macedonio and Diane Ferrone win a stunning victory in Asaro trial

Vincent Asaro was just acquitted at trial in the Eastern District of New York of charges related to the ‘Lufthansa Heist’ depicted in the movie GoodFellas.  And by his side at trial were two prominent female criminal lawyers: lead attorney, Elizabeth Macadonio, and co counsel, Diane Ferrone. This was probably one of the biggest mafia trials in most recent history – but unlike other organized crime trials, Vincent Asaro walked out of the courtroom flanked by his two lawyers after a jury acquitted him of all counts. I loved watching a video of Asaro walking out of the courthouse, arm around his two female criminal defenders saying, “I’d like to thank my two lawyers, without them I wouldn’t be here now.” You can watch the same video in the New York Times article, “Vincent Asaro, Accused in Lufthansa Heist, is Found Not Guilty.”   The trial has been closely followed by the media and was based entirely on paid Government snitches, including Asaro’s own cousin.  The defense reportedly did minimal cross examinations, and put on only two witnesses. They later came out swinging in closing argument, focusing on the credibility of paid snitch witnesses. It was reported that Macedonia argued that the cooperators were “despicable people” and “accomplished liars.” She went on to explain to the jurors that they would have to rely on career criminals, expert liars and confessed killers to convict Mr. Asaro – obviously points that were persuasive to the jury. You can read The New York Times detailed portions of the closing arguments here and in the Wall Street Journal here. Ironically, another fact that caught the media’s attention was the gender of Asaro’s counsel – I am not the only one paying attention to the strong defense provided by his female attorneys. Bloomberg Business published an article entitled ‘Goodfellas’ trial, macho lawyers give way as women take over,’ which called the Asaro trial both an ’anomaly’ and a ‘sign of progress’ for women in the field. The Bloomberg article also cited the fact that men are almost four times more likely to act as lead counsel in criminal trial defense based on the ABA study we highlighted early this year. The image of the acquitted client flanked by two women defenders is so powerful it transcends the case – more powerful than any article, blog post, or interview. It creates a lasting picture of women defenders, and speaks to the fact that we are fighters, victors, and successful. Bravo to Elizabeth and Diana for a job well done and for moving us all forward. The post Elizabeth Macedonio and Diane Ferrone win a stunning victory in Asaro trial appeared first on Women Criminal Defense Attorneys.
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Are There Limits to Presidential Pardons?

President Obama commuted prison sentences for 46 drug offenders on Monday, noting that their long sentences (lifelong in 14 cases) didn't fit their crimes. The commutations reflect a trend at federal, state, and local levels of relaxing harsh minimum sentences for non-violent drug offenses. These commutations also reflect Mr. Obama's view of America, which he called "a nation of second chances." As The New York Times pointed out, this brings the President's commutation total to 89, the most by any president since Lyndon Johnson, and more than the last four presidents combined. So what are the differences between commutations and pardons, and what are the limits to the presidential pardon? Commutations vs. Pardons A commutation is a form of clemency whereby an official lessens an offender's punishment after he or she has been convicted. Whereas a pardon removes the conviction and any civil disabilities that come from it (like restricted voting rights), a commutation just removes the remaining sentence. So while these 46 drug offenders will be released from prison, their criminal convictions will remain on their records. This is compared to the pardon that new President Gerald Ford gave to former President Richard Nixon regarding the Watergate scandal, which was a "full, free, and absolute" pardon, precluding any potential criminal trial and conviction. The Pardoning Power The power to pardon comes from Article II of the U.S. Constitution, which gives the president "Power to Grant Reprieves and Pardons for Offenses against the United States." While the Supreme Court has interpreted the power broadly -- "It extends to every offense known to the law, and may be exercised at any time after its commission, either before legal proceedings are taken, or during their pendency, or after conviction and judgment" -- it is limited to those offenses falling under the jurisdiction of the pardoning official. Therefore, Mr. Obama has the authority to issue pardons for federal crimes. There are no statutory or judicial limits on the number of pardons or commutations a president can grant. (Lyndon Johnson commuted 226 sentences.) And while some commutations are often reserved for political allies, these 46 seem representative of larger criminal justice reforms. Related Resources: Pardons Aren't Just for Turkeys (FindLaw Blotter) Obama Commutes Sentences in 8 Crack Cocaine Cases (FindLaw Blotter) Obama Pardons Humans, Not Turkeys (FindLaw Blotter) Post-Conviction Proceedings (FindLaw)
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5 Reasons Criminal Trials Are Often Delayed

Although an accused criminal is often arrested immediately following an alleged crime, that person's criminal trial may take years to complete because of delays in the proceedings. The ongoing trial of accused Colorado theater gunman James Holmes, for example, was delayed several times before jury selection began earlier this week. According to Yahoo! News, the trial has been delayed for two and a half years, more than three times the timetable recommended by the Supreme Court of Colorado for felony criminal cases. The case has already had five trial dates and two judges, with a request for a third denied. In addition, more than 1,700 motions, notices, orders, and other court documents have been filed in the case. What are some of the more common reasons for delays in a criminal trial? Here are five: Psychiatric evaluations. Criminal trials may be delayed while the defendant undergoes psychiatric evaluation to determine whether or not he is fit to stand trial. The trial of another accused gunman, Jared Loughner -- who was convicted of killing six people in a shooting in which former Congresswoman Gabrielle Giffords was also injured -- was delayed for more than a year after Loughner was found mentally unfit. Loughner eventually plead guilty. Change of venue. In high-profile cases like Holmes', defense attorneys often ask for a change of venue, arguing that it'd be impossible for their client to get a fair trial in the jurisdiction where the crime occurred. This may lead to delays, even if the request is eventually denied, as it was in Holmes' case. More time needed to prepare. Trial delays may also be granted if attorneys can show they have not had adequate time to prepare. Judges generally have wide discretion to grant delays in order to allow attorneys to prepare or review evidence. But these requests may also be denied, as it was in the trial of George Zimmerman when his attorneys requested a six-month delay to ready their case. Scheduling conflicts. If an attorney involved in the case has a scheduling conflict with another case, a judge may agree to delay a trial in order to accommodate the attorney. In some instances, a judge may even agree to delay a trial for more personal reasons, such as the birth of a lawyer's grandchild. Emergencies. Personal emergencies, such as medical issues or family issues, may also delay a trial. But criminal trials are generally bound by a defendant's constitutional guarantee of a speedy trial (though this can potentially be waived). The need for a speedy trial may compel a judge to deny a request for a continuance, even if it means an attorney is obligated to appear in court along with her newborn baby. Find more information about criminal proceedings, criminal procedure, and a defendant's constitutional rights at FindLaw's section on Criminal Trial. Related Resources: Browse Criminal Defense Lawyers by Location (FindLaw) Zimmerman Seeks 6-Month Trial Delay (FindLaw's Blotter) Why Do DUI Cases Take So Long to Resolve? (FindLaw's Blotter) Judge Urged to Reject Rod Blagojevich Trial Delay (FindLaw Blotter)
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