Wednesday, March 31, 2010

Trying a Case--Continued

Here on Bad Lawyer I've explored jury selection in the past.  But a little refresher may be in order.

There is all sorts of advice out there for selecting the perfect jury, and I will not insult those who have tried to reduce the process to a science.  My experience is that for the average case, judges have a low threshhold of tolerance for too much focus group tinkering.  So some general rules of the road apply.  Pick sensate and alert jurors.  If you are a plaintiff's lawyer avoid "bean counters:" accountants, engineers, financial types--since you know you are never going to be able to supply the degree of  evidence required to meet their attentuated sense of what is necessary proof for that professional class--when your burden of proof is only "preponderance of evidence."  I had some success one time leaving an accountant on a panel but I warned him in Voir Dire that I was taking a risk not seeking to excuse him, because my burden of proof was "preponderance of evidence,"  not absolute proof.   After the trial was over my accountant juror laughingly told me that he thought about the committment I made him make to follow the lesser standard of proof. 

Do not try your case during voir dire, but listen carefully to the answers the prospective jurors give in the preliminary Q & A with the judge.  If you ahve a problem with an aspect of your case, deal with it  up front during voir dire, your problem may not go away but you should be able to blunt the problem and enable the jurors to get beyond a difficulty that if less unaddressed could kill the case.  For instance you client may have a criminal record that will be used to impeach them, own it up front.  Mrs, Jones my client abused cocaine while she as a student at OurState college, and she was arrested for this crime and since then she has been clean and sober for 10 years.  Will knowlege of this fact make it impossible for you to render a verdict for her in this consumer case?  Make ther jurors commit to finding for your client on damages, and liability if the evidence supports a verdict for your client.  Make the jurors commit to a full award of damges! 

Be polite, but don't ingratiate, or kiss ass, prospective jurors see through that sort of thing.  Be respectful, you don't have permission to call them by their first name.  Earn their respect by your behavior through out the trial.  Make the effort to learn their names, by keeping a seating chart at the ready and speak to them by name.  Don't be informal or casual with your client or opposing counsel in front of the jury--although you should call your client by their first name. 

Above all in every thing you do, do not waste the jury's time.  If your opponent spends an inordinate amount of time in opening statement or closing argument, do not feel the need to match the verbal marathon.  Apologize for your brevity and ask the jurors not to hold it against your client that your arguments are statements and arguments to them are brief, but ask them to think about what your are saying and to remember what your client and the witnesses said because that truly is the important part of the trial. 

If you are nervous, let them know that you are nervous, if you mispeak or the judge admonishes you ask the jurors not to hold your nervousness or your error in court against the client.  They'll appreciate your humility, and if the evidence is there they enter a verdict for your client.  Above all remember you are not the case, you do not need to make a strong impression, in fact the best tried cases are the ones where afterwards where the jurors barely remember you, or anything you said.  Jurors remember the case, not he lawyers in the well-tried lawsuit. 

Above all remember do not overstate the evidence or over promise--deliver the evidence you say exists.  Do it humbly without getting caught up in emotional reactions to arguments made by your opponent, or rulings that don't go your way.  Listen, listen, listen to what is being said by the witnesses on the stand and try to ask the next question from the perspective of the juror--what does Mrs. Smith, juror number 4, need or wnat to know next?  Ask that question.  If the witness hems and haws, ask it again.  Ask questions respectfully, not argumentatively, do not go for the TV law drama a-ha, moment.  Those rarely happen and even more rarely work out the way you want them to.  Humble, and attentive beats dramatic and overwrought everytime. 

Finally, do not under any circumstance print out a prepared speech and read it to the jurors as your opening or closing statement.  Speak from you heart, about what you know the case to be about and what the evidence will be.  When you close, summarize what evidence you believe met the elements you had to prove, thank the jury and ask for a reasonable amount of damages, then sit down.  Do not roll your eyes or make expressions while your opposing counsel is speaking, listen to him attentively and watch the jurors' reactions.

Always be brief and polite.

Rodney Alcala--Death

Bad Lawyer was one of the first blawgs to report on the third trial of serial killer Rodney Alacala, who had twice previously been sentenced to death for killing 11 year old Robin Samsoe.   Representing himself in a third trial, Alacala who purported has a genuis IQ, had the proverbial fool for a client and the fool for a lawyer.  I also reported on Alcala's conviction following this third trial which Alcala succeeded in turning into the predicted lurid travesty--with a playback of his appearance on the Dating Game.

Now he has been sentenced to death for a third time.  You can read the denouement at the link for the Orange County Register which had the best coverage, with further links to the victim impact statements.

Maureen Dowd on a Process for the Pope

This morning's NYT has a brilliant column by Maureen Dowd analyzing the "defenses" advanced by the Pope's apologists and defenders.  Like Bad Lawyer she agrees that it is time to formerly hold the Holy See to full account for the crimes against children. 

These Guys Have No Shame--Personal Injury Advertising


The Toledo Blade, is reporting at its website over the civil lawsuits filed by former employees of lawyer Donald Guernsey (pic at far left) of Fostoria, Ohio. 

Apparently this asshole put a "pinhole" camera in the restroom at his law office to video his female workers.  Guernsey was convicted of evidence tampering.   Nice!

Tuesday, March 30, 2010

Judge, Forgerer!

Delaware County, Pa. District Judge David J. Murphy forged the signatures on his nominating petitions to qualify to appear on the ballot according to a report at  Apparently in Pennsylvania you can appear on the ballots of both parties during elections and Judge Murphy an incumbent Republican had failed to obtain enough signatures to qualify to appear on the Democratic ballot, so he took the shortcut of supplying the signatures himself.

The forgeries would be laughable if they weren't so ultimately tragic for htis jurist's career.  Misspellings, the use of names of persons easily verified as not signing the petitions, the wrong addresses.  Terrible, sloppy and disastrous for Judge Murphy.

Now Judge Murphy will be lucky to (a. stay out of jail, and (b. retain his law license. 

It sounds like the Delaware County voters are lucky to have a new option for this judicial position. 

Arrest the Pope, Try Him in the Hague?

Rape is a genocidal crime against humanity.

Pope Benedict XVI is the head of state of the Catholic Church.

The Pope's role in protecting and covering up for sex criminals, rapists, and pederasts, who systematically victimized the world's children should be prosecuted, attempts to do this civilly have been aggressively and cruelly opposed by the Church and it's lawyers.  Should Benedict be arrested and put on trial at the International Criminal Court for crimes against humanity?

Benedict's apologists, say he's innocent, not in the know.  How is this possible?

Crime Scene Investigator--Guilty of Planting Evidence

The other day we were talking on Bad Lawyer about Douglas County, Nebraska chief crime scene investigator, David Kofoed on trial for planting blood and other evidence in murder cases that resulted in teh wrong people being prosecuted and jailed.  Last week, now former-Officer Kofoed was convicted.  The multi-million dollar civil suits will begin, according to the Omaha World-Herald.

Here it is proof once again, that our tough and aggressive law enforcement cost lives, ruin criminal investigations and destroy respect for the rule of law in their zeal to put bad guys behind bars, they become the bad guys and they cost you the taxpayer.  Here's proof also that better living through science is a canard, in other words "junk in, junk out."

How To Try a Lawsuit--Part Two

In preparing to walk into court on the first day of trial you should have already prepared and submitted a trial brief.  Unless there is a "standing order" from the trial court, or a local rule of court this document is pretty free form.  At a minimum it should tell the court in concise, non-purple prose, what your case is about, what witnesses you intend to call and what exhibits you intend to offer.  If there are pending motions relating to the presentation of evidence these should be summarized.  MOST IMPORTANTLY YOUR PROPOSED JURY INSTRUCTIONS SHOULD BE ATTACHED.

Jury Instructions which are now codified (written down) for nearly venue, should be the first place all lawyers go in preparing a case for trial, because the jury instructions provide a precise bluepirnt.   The jury instructions applicable to your case tell you what you as a plaintiff are going to be required to prove; and provide a blueprint for you as a defendant, what you are expected to refute, or in the case of "affirmative defenses" prove.   The instructions also lay out what the burden of proof in the case are and more importantly how credibility is to be assessed by the jurors when they have an opportunity to deliberate.  Why is this important to the lawyers?  Precisely because this establishes what sort of testimony or cross examination will impact the juries evaluation of your case.  Folks, this is good stuff, and if you know in advance what the Judge is going to tell the jury at the end of the case, you will know how and what to shovel onto the scales of jsutice.

It's astonishing to me the widespread disuse of these reference tools by advocates.  Genuinely if more lawyers spent an hour or so, at the outset of a representation of a client looking at the jury instructions that pertain to the case they were handling for a client wheel-spinning would cease.

As you know my friend Laura is preparing to try her first lawsuit, I know, she prepared her lawsuit, properly.  She's going to be a great lawyer!  I'm very proud of her.

Walgreens to Pay $6 Million to Settle Snake-Oil Claim

Matthew Hathaway, consumer columnist for the St. Louis Post Dispatch is reporting that Walgreens has agreed to pay a $6 million dollar penalty for foisting a "snake oil remedy" on their customers.  The product, Wal-born was a knock off of another snake oil product called AirBorne.  This is from Hathaway's column: 

"Walgreens will pay $6 million to settle Federal Trade Commission charges that the pharmacy chain’s marketing of its 'Wal-Born' concoction — a store-brand imitation of the patent medicine, Airborne — was as honest as the remedy was effective.  Which is to say, not very. According to the FTC, Walgreens advertised Wal-Born as being a cure-all that can treat colds and the flu, fight germs and boost the immune system. The retailer also touted its supplement as being similar to the 'remedy' sold by Airborne Health Inc., which agreed to pay $30 million to settle FTC deceptive advertising charges in 2008 as well as $23 million in a related class-action suit."

Monday, March 29, 2010

12 Year Old Adult

The boy in the picture is Jordan Brown of New Castle, Pennsylvania.  Jordan committed the horrific act of killing his father's 26 year old, pregnant fiancee, Kenzie Marie Houk.

Jordan used a youth-sized shotgun his father gave him for hunting.  After committing this act Jordan got on the bus with his soon to be 7 year old step sister and went to school.  Judge Dominick Motto has decided that Jordan Brown should be tried as adult according to breaking news reports from the Associated Press

A lenghty piece at the New Castle News website, examines in detail the act, and the evidence.  Essentially this homicide appears to be a response by Jordan to being moved out of his space to make room for the imminent birth of his half-brother who also did not survive the shooting. 

As horrible as this act is, I have a hard time believing a 12 year old child is able to form the mens rea (criminal intent) necessary to commit murder.  We've talked about this in the past, a crime consists of two elements: criminal intent, and the act in furtherance of the criminal intent.  Children are not tried as adults (at least North of the Mason Dixon line, usually) because we as a society of civilized men and women understand that the brains of children are not fully developed and are not capable of adult emotion, thought and motivations.   The exception to this rule is when an act so overwhelms our senses that we lose all rational thought and we react like we've lost the capacity for rational thought--as in this instance.  Or when our politicians in charge of the decision making have to stand for reelection.

The local horror over this shocking act must make it politically impossible for the Judge and prosecutor to do anything other than to take their shots at this unsympathetic child.  Certainly Jordan is disturbed, let's hope a jury can see through the demagoguey and send this sad little creature to get the sort of psychiatric support he will need for the rest of his life.  Chilling.

Dahlia Lithwick on Healthcare Litigation

If you read no other article on whether "Obamacare" is going to be upheld, read Dahlia Lithwick at Slate.

Brent Arthur Wilson--Smiling Drfiter Update!

Our Smiling Drifter, Brent Arthur Wilson is still at it according to the Missoulian, he just can't seem to get it in his head that you don't refer to the Judge by her first name.  And when she cautioned him to knock if off during the third hearing Judge Deborah Kim Christopher held in the the case, the case in which Wilson is accused of cutting off the padlock on a foreclosed house, moving in, and then submitting a deed from Yahweh--Wilson who is representing himself felt the need to remind the Judge-- "Deborah, you are not God." 

The now apoplectic judge has ordered that Mr. Wilson be evaluated, psychiatrically.  But Wilson says he will not cooperate until he, first, has an opportunity to examine the forensic psychiatrist's license, qualifications, and malpractice insurance coverage. 

Thus far, our smiling drifter has been able to thwart the Court--although he remains behind bars. 

We'll keep an eye out on this story.

Boys and Their Toys--Sick!

There's an amazing website called Behind the Blue Wall dedicated to reporting stories of law enforcement officers involved in domestic relations violence, which is endemic to that testosterone-laden profession.  They have an account of a Dellroy (Canton-area) police officer Kevin McCann who plead guilty to using his taser on his girlfriend's two young daughters.

Piece of shit.

This is pretty strong stuff, and the sort of story I see all the time but which I would prefer not to relate because it is darkness of the sort that I don't process very easily.  If this is a subject that interests you, you should become a follower of Behind the Blue Wall.   I am reporting this story because it fits in with the continuing theme of this blawg which is that entrusting law enforcement with dangerous weapons results in the endless acts of unfettered mayhem.   Cause and effect, why do we tolerate it?

Outrageous! 9th Circuit Court of Appeals Loses All Reason

Malaika Brooks (pic) a pregnant African-American woman got a ticket form the Seattle police sometime in 2004 for going 32 mph in a school zone.  Like many of us, she was angry feeling the citation was unjust. She refused to sign the ticket, so the cops tasered her, twice!

Mrs. Brooks sued.  The U.S. District Court trial judge permitted her case to proceed over motions to dismiss filed by the cops.  Seattle appealed.  Get this the 9th Circuit Court of Appeals has held (link is to the opinion) that tasering a pregnant woman over a traffic citation was not a denial of her constitutional rights, ARE YOU F%&%(&$g KIDDING ME!!!!!

Seriously, I expect to see outrageous stuff at local news websites, this story is one of those where you have to ask yourself if you are living in 2010.  Here's Gene Johnson's report from the Seattle Post Intelligencer website:

"Malaika Brooks was driving her son to Seattle's African American Academy in 2004 when she was stopped for doing 32 mph in a school zone. She insisted it was the car in front of her that was speeding, and refused to sign the ticket because she thought she'd be admitting guilt. Rather than give her the ticket and let her go on her way, the officers decided to arrest her. One reached in, turned off her car and dropped the keys on the floor. Brooks stiffened her arms against the steering wheel and told the officers she was pregnant, but refused to get out, even after they threatened to stun her.

The officers - Sgt. Steven Daman, Officer Juan Ornelas and Officer Donald Jones - then stunned her three times, in the thigh, shoulder and neck, and hauled her out of the car, laying her face-down in the street. Brooks gave birth to a healthy baby two months later, but has permanent scars from the Taser. She sued the officers for violating her constitutional rights, and U.S. District Judge Richard Jones allowed the case to continue. He declined to grant the officers immunity for performing their official duties and said Brooks' rights were clearly violated.

But in a 2-1 ruling Friday, a panel of the 9th U.S. Circuit Court of Appeals disagreed. Judges Cynthia Holcomb Hall and Diarmuid F. O'Scannlain held that the officers were justified in making an arrest because Brooks was obstructing them and resisting arrest. The use of force was also justified because of the threat Brooks posed, Hall wrote: 'It seems clear that Brooks was not going to be able to harm anyone with her car at a moment's notice. Nonetheless, some threat she might retrieve the keys and drive off erratically remained, particularly given her refusal to leave the car and her state of agitation.' They also noted that the force used wasn't that serious because the Taser was in 'touch' mode rather than 'dart' mode, which hurts more. They reversed the lower court's opinion and held that the officers were entitled to immunity from the lawsuit.

The officers' lawyers, Ted Buck and Karen Cobb, said the officers made the right decision under the circumstances they faced.  'Police officers have to have the ability to compel people to obey their lawful orders,'  Buck said. 'That's all the court recognized today. The 9th Circuit just applied the law instead of getting caught up in the otherwise unfortunate factual circumstances.'

The majority's opinion outraged Judge Marsha Berzon, who called it 'off the wall.'

'I fail utterly to comprehend how my colleagues are able to conclude that it was objectively reasonable to use any force against Brooks, let alone three activations of a Taser, in response to such a trivial offense,' she wrote.  She argued that under Washington law, the officers had no authority to take Brooks into custody: Failure to sign a traffic infraction is not an arrestable offense, and it's not illegal to resist an unlawful arrest. Berzon said the majority's notion that Brooks obstructed officers was so far-fetched that even the officers themselves didn't make that legal argument. To obstruct an officer, one must obstruct the officer's official duties, and the officers' only duties in this case were to detain Brooks long enough to identify her, check for warrants, write up the citation and give it to her. Brooks' failure to sign did not interfere with those duties, she said. Furthermore, Brooks posed no apparent threat, and the officers could not have known how stunning her would affect the fetus, or whether it might prompt premature labor - another reason their actions were inexcusable, Berzon said.

Brooks' lawyer, Eric Zubel, said he would ask the 9th Circuit to rehear the case.'This is outrageous - that something like this could happen to a pregnant woman, in front of an elementary school, at 8:30 in the morning, to someone who posed no threat whatsoever,' he said."
I believed that the federal courts were defenders of liberty and civil rights, but that was just one more delusion.

Sunday, March 28, 2010

How To Try a Lawsuit

You might reasonably ask yourself, why would I listen to a Bad Lawyer on the subject of how to try a lawsuit?  I myself do not purport to give you advice, but I was a petty good trial attorney and on occasion when I could get out of the way of my case, I won many if not most of the matters I took to trial as either a plaintiff's attorney, or in my later years, as a defense attorney.

Getting the verdict paid, well that was altogether another thing.

A young lawyer friend of mine is scheduled to try her very first lawsuit, next week;   and, while the probability of her matter actually going forward is slim to none, you never know.   Laura must act as if it is actually going to proceed.  This morning, Laura was agonizing (my word, not her's) over how to have a document that she believes is crucial admitted into evidence at trial in light of the fact that the attorney who prepared the matter prior to her assumption of the case skipped steps which would have made admission of the document automatic.  We talked about her scramble to get this document "authenticated," in the absence of testimony from the custodian of the document.   As I've said before, and I don't want to overuse the metaphor, but this is classic "inside baseball."

You do not have to be a young attorney to be perplexed and agitated by the rules relating to how evidence is handled at trial.  It's not unlike trying to dance, and not being able to remember the number of steps that you make with your left foot and those you make with your right foot and which direction: backwards, forwards, left or right.  While some of this important, the reality is a trial is not like being on television or the radio where "dead air" is to be avoided at all costs.  There are rule books and it is not uncommon for matters to grind to a halt while these debates are worked out.  More importantly---most of the time what should come in for the Judge or jury to consider comes in, and the stuff that should stay out, stays out.  Where the trouble comes in, most of the time are the unnecessary arguments over superfluity.  That which is beyond necessity or relevance.  The arguments themselves take on an importance and life of their own that are distracting and crippling--it has always seemed to me that evidentiary argument is a lot like martial arts, it's not the punch it's the psychic energy wasted in focus on the worng things that is to be avoided at all costs.

WHAT IS MY CASE ABOUT?  That is the question.  How do I prove my case?  That is the next most important question.  You prove your case with credible and relevant testimony which comes primarily from your client, and the defendant.  If a person says something that is not true and you can confront them with a document, even a documnet that has "not been authenticated" (and therefore can not stand on its own as separately admissible evidence, but) which contradicts what the party or witness says, no court is going to say you can't cross-examine them on this evidence. So have at it.

Stay focused on the case!

Laura is trying a lawsuit that involves another young woman who bought a "great" used BMW for $20,000.  Her dealer advertised this "great" car even though he knew or should have known that the car had been in an accident and had a damaged chasis.  The dealer denies knowing that car damage reporting services had documented this damage, notwithstanding he held this vehicle out to the public as "great."  The last time I looked the common english definition for "great" is "markedly superior in quality."  This damaged car was not, and moreover documents readily available to this dealer said so. 

That in a nutshell, is my Laura's case.  The fact that this car dealer will say he did not read the reports means that he is either a liar or grotesquely reckless.  In either event she should be able to show this from her client's testimony or the dealer's testimony.  The argument over whether my friend can independently offer the ":car fax" and otheer documentation--as stand alone evidence, should not occupy one further moment of anxiety in my young friend's preparation.

Gayle's Bard Blog--The Quality of Mercy

Don't miss Gayle's sublime post on the quality of mercy in Shakespeare's The Merchant of Venice.  A magnificent meditation for all lawyers and those becoming lawyers.  This is Shakespeare's soliloquy on mercy in the mouth of the "lawyer" Portia:

The quality of mercy is not strained.
It droppeth as the gentle rain from heaven
Upon the place beneath. It is twice blest:
It blesseth him that gives, and him that takes.
'Tis mightiest in the mightiest. It becomes
The throned monarch better than his crown.
His sceptre shows the force of temporal power,
The attribute to awe and majesty,
Wherein doth sit the dread and fear of kings;
But mercy is above this sceptred sway.
It is enthroned in the hearts of kings;
It is an attribute of God himself.
And earthly power doth then show likest God's
When mercy seasons justice. Therefore, Jew,
Though justice be thy plea, consider this:
That in the course of justice none of us
Should see salvation. We do pray for mercy,
And that same prayer doth teach us all to render
The deeds of mercy. I have spoke thus much
To mitigate the justice of thy plea,
Which if thou follow, this strict court of Venice
Must needs give sentence 'gainst the merchant there

My lawyer friend Mark says there is a Russian proverb that translated means--we all claim to want justice but what we really want and what we really need is mercy.

Mickey D's Strip Search With Fries . . . I'm Lovin' It!

The Louisville Courier Journal reports that McDonald's settled the lawsuit brought by the former employee subjected to a strip and cavity search by her manager.  A Kentucky jury awarded $1.1 million dollars plus $5 million dollars in punitive damages. In ageeing to pay the compensatory damage award McDonalds and the plaintiff avoided the pitfalls of appeal and confiscatory taxes on punitives. 

This is a strange story, apparently fast food chains in and around Louisvelle were receiving prank phone calls from a caller purporting to be a police officer.  The caller said, so-and-so employee is suspected of stealing and would instruct managment to isolate the employee in the restaurant office and conduct this search.  In this case the manager got a little more---involved? 

McDonald's obviously argued that the actions of its manager were not its actions, and that as outrageous as the acts were, they were based on a fraud committed by some one else.  The plaintiff successfully argued, that the acts of the manager were in fact exactly the actions of McDonalds, and that the chain knew or should have known that these calls were being made system-wide and that it was negligent in failing to instruct managment not to report the calls to the police, properly. 

This is a sickening case, when you think of your work-age child being subjected to this sort of thing during their first employment. 

Good call on everyone's part in reaching a settlement in my view.

Saturday, March 27, 2010

You Might Be Drunk--If You Are Trying To Give Mouth-to -Mouth to a Dead Opposum

An Oliver Township, Pa. (north of Pittsburgh) man was spotted by witnesses trying to resuscitate a dead Opossum (anyone know the difference between a possum and an opossum, or are they the same thing?)  I suspect that this may be a heretofore unknown automatic indication that the lifegiver sammaritan is probably under the influence of something--probably alcohol. 

This report comes via the Pittsburght Tribune.  According to "Trooper Jamie Levier said several witnesses saw Donald Wolfe, 55, of Brookville, near the animal Thursday afternoon along Route 36 in Oliver Township. She said one person saw Wolfe kneeling before the animal and gesturing as though he were conducting a seance, while another saw the mouth-to-mouth attempt. Levier said Wolfe was 'extremely intoxicated' and 'did have his mouth in the area of the animal's mouth, I guess.'"

As an ex-drinker, I can strongly relate to this story.  While I don't recall ever trying to resuscitate any dead thing, I do recall the sentimental impulse.  Then again I don't remember all the things I did do drunk (alliteration alert,) however, I do have vague recall of running around a city street in less than all my clothes one night, why I can't say I recollect the reason. 

Health Care--'Bet It's Constitutional!

The Bad Lawyer was out to a restaurant, last night, with the Blonde Super Lawyer, a physician friend, a professor of nursing, and her husband an OurTown attorney/legend.  Good restaurant, great friends, a fun time!

The subject of the new HealthCare reform came up in conversation and various opinions were offered including the observation by my friend, the famous OurTown attorney--who observed that he and a mutual lawyer friend were separately, talking about the eventual Supreme Court decision that he and our mutual friend concluded would result in the declaration of the reform as unconstituional. 

As you know, the Bad Lawyer blawg rarely weighs in with opinions on the big stories and debates, because, frankly, smarter and more expert people than moi carry that ball.  And this is a forum for a dirt bag guy with 28 years of experience and no current law license to expound on what he thinks is interesting.  But I listen to a lot of folks, who are all over the place on this subject and I do have my opinions .

For a long time, I've wondered why in this country only a few people pay for health care.  In fact only a few people pay for all the health care.  Those people fall into two categories, people with health insurance and people without health inusrance who can pay the undiscounted full price (usually against their will.)  In the first category you have people with health insurance through their jobs or who are lucky enough to be able to afford health insurance.  In the latter category you have people who are poor but not poor enough to be uncollectable--so health care providers can sock these folks with the full boat payment, plus interest and the costs of collecting the full amount from them.  You see, in this country health care is fully paid for by somebody, and that somebody is you and my health insurance carrier.  Those who can't pay get health insurance and we subsidize them by paying more.  Now it's getting too expensive for many of us. 

So the solution--mmmmm, I'm not real smart, but isn't it that we all participate in paying for what we all receive?

So my friend suggested last night that there were constitutional infirmities to an individual mandate to buy health insurance coverage.  Why?  I pointed out that we all are mandated to "buy social security," or opt out through some recognized alternative like teacher's retirement, PERS, and so forth; but, my super smart friend said well that's a tax.  Well it's only a tax if you aren't doing one of the recognized alternatives--you are required to do something--it ain't voluntary.  But the argument was Congress can not enact a law requiring you to buy health insurance.

As I say, Congress and our state legislators enact all kinds of laws requiring us to do this or that--but you do not have to be a constitutional scholar to know that in fact the Constitution in Article I, Section 8 grants Congress the power to tax, impose financial obligations of all sorts to provide for the common defense and general welfare of the United States.  And in this regard the same Article of the Constitution enables Congress to regulate commerce among the states (ahem, insurance companies), and to make all laws necessary and proper for carry out the enumerated purposes of Article I. 

Hear me out, I am no constitutional scholar, and I am not engaging in any sophisticated discussion of the nuances of the the case law or legal arguments, now or ever; but this is not case law, this is not an "amendment," this is not a regulation--this my friends is the body of the US Constitution.  So when your friends shoot their mouths off about this or that right being taken away by Obamacare, you can ask them:  Have you ever really read the US Constitution?  Uh, the body of it? 

Good luck, there's no reasoning with a lot of people, frankly what's going on right now--isn't at all about reason.

The Serial Killer and the Judges

Anthony Sowell is allegedly Cleveland, Ohio's most notorious serial killer.  Sowell was luring young black women into an Imperial Avenue house where at least 11 were brutally raped and murdered. 

The Sowell case is pending in Cleveland courts since last year when the original Judge, Timothy McGinty (pic right), a hot-head former prosecutor recused himself from the case.  According to my sources in Clevealnd it is doubtful whether McGinty would even have a law license were he to become a lawyer in the current disciplinary environment since the Judge failed to disclose at least one DUI convictions on his bar application which came to light during McGinty's ugly campaign to become a judge. Modern day law students are permanently prevented from taking the bar exam for less dishonesy that McGinty exhibited in his bar application, but that was then.  Additionally McGinty's conduct as a prosecutor notoriously involved th the sorts of things that resulted criminal conviction reversals and in as we saw California prosecutor taking a 5 year suspension as recounted, here, on Bad Lawyer.  So it was no surprise when Judge McGinty stepped down in December from the Sowell prosecution, particularly after he had shot his mouth off in the press about the case before he was assigned it.  But McGinty's ego wouldn't let him stay out of the case, leaked a confidential psychiatric examination on Sowell to the press.  When the new trial judge learned about the leak--not realizing it was her colleague who leaked the report--she was on the verge of jailing the reporter who published the story for contempt of court.  

That judge, Judge Shirley Strickland Saffold (pic, below,) is in big trouble herself.  What remained of her reputation has taken a big hit and the story is all over major web blawgs including the ABA Journal and others.  While most of these websites leave out the Judger McGinty portion of this tale of judicial malpractice.  You see what's going on, and why anybody in their right mind should care, Anthony Sowell is far more dangerous than any of these clowns at Guantanamo Bay--and the judges presideing over his case are playing a dangerous game that implicates whether he stays behind bars. 

Now, the new judge, Judge Shirley Strickland Saffold is also a  controversial and mercurial Cleveland jurist.  She has battled openly with the Cleveland media over the years, but this time, she may have gone way over the line;  one thing is for certain she is about to lose the highest profile case she has ever been assigned.  This may not be the only consequence for Judge Saffold who committed a mind-boggling act of stupidity and injudiciousness--using a pseduonym, Judge Saffold has been anonymously posting comments at the website of Cleveland's only daily newspaper, the Cleveland Plain Dealer.  In posts under the name "lawmiss" traced to the court's computer the Judge has offered sarcastic, and racist comments about legal matters pending in front of her and specifically comments critical of Sowell's african-american attorney Rufus Sims.  When confronted by reporters for the Plain Dealer, the Judge tried to claim that the posts were made by her daughter, a non-lawyer who resides 2 1/2 hours away in Columbus, Ohio.  Even allowing for her alibi, why would her daughter would have access to the court's Cleveland computer?   The Judge isn't saying, but let's not kid ourselves--the Judge, herself, is caught doing what no judge should do, exhibiting extreme bias and prejudice.

Mr. Sowell (pic center) is represented by a number of reputedly excellent lawyers, including Mr Rufus Sims (on the left).  What follows is from the website:

"The judge's personal AOL account was used to set up the lawmiss account.  One of the comments criticized [attorney Rufus Sims] for his defense work in a [separate] vehicular homicide trial in which Saffold was the judge. Sims' client in that case was convicted of vehicular homicide and sentenced to six months in jail. [Lawmiss] advised attorney Sims to 'shut his Amos and Andy style mouth.' The post said Rufus Sims did a disservice to his client and that other lawyers could've done a better job.

Saffold has denied writing any of the comments. Her 23-year-old daughter, Sydney, on Thursday took responsibility for writing all of the comments. Sydney Saffold is a former law student living in Columbus. Court records -- obtained by the newspaper under a public-records request -- showed that three of the comments were made at the exact times and dates someone was logged on to on the judge's office computer."
According to the Plain Dealer the extended post said:    "“Rufus Sims did a disservice to his client,” the Nov. 21, 2009, post reads. “If only he could shut his Amos and Andy style mouth. What makes him think that is [sic] he insults and acts like buffon [sic] that it will cause the judge to think and see it his way. There are so many lawyers that could’ve done a much better job. This was not a tough case, folks. [The bus driver] should’ve hired a lawyer with the experience to truly handle her needs. Amos and Andy, shuffling around did not do it.”

Lawmiss/Judge Saffold was referring to a case where Mr. Sims represented a local bus driver who killed a pedestrian in a downtown Cleveland crosswalk while she was distracted and using a smartphone to text. 

This afternoon, Mr. Sims filed motions to have Judge Saffold removed from the case.  If she fails to remove herself, the Supreme Court of Ohio will remove her.  Can you imagine the incredible cost to Ohio taxpayers if this Judge had proceeded to handle the trial, conviction and sentencing of this defendant only to have this stuff come out later, only to have his convictions reversed.  Imagine for a moment, the pain and mental torture of the family members and friends of his victims as they relive again and again the testimonial horror of what happened to their daughters and sisters and loved ones because some thoughtless, egotistical Judge who couldn't restrict her opinions during the most important case of her judicial career.  Frankly it makes me wonder how many of the matters she has handled that are now going to have to be revisited because of bias and prejudice. 

Kashimir Hill at Above The Law, one of my favorite Blawgs, named Saffold,  Judge of the Day--this is not a compliment.

Look I think I can feel some empathy with Judge Saffold, it's tough to be a minority anything and feel dogged by the media, second guessing anything and everything you do, questioning even your basic intelligence.  By going after Mr. Sims, Judge Saffold betrays her tremendous insecurity. But more importantly, the Judge unintentionally reveals her own inability to separate herself as from, the basic instinct--victim hood.  Judge Saffold makes it impossible for her to do the job she was elected to do.  Judge Saffold should step down from not only this case, but she she ask herself whether she needs to step down from the bench.  The disciplinary authorities of Ohio may not let her have a choice in the matter, now.

The Ohio Supreme Court should also look at the intemperate Irish dry-drunk, I empathize with him too, but I'm not sending people to prison or to the death house, let alone abusing civil litigants or parties as a Judge. 

Friday, March 26, 2010

Clay County, Kentucky Justice For Sale

Clay County, Kentucky with an estimated population in 2004 was 24,254 is nestled in the eastern tip of the State.  Yesterday a U.S. District Court jury convicted 8 of its most prominent citizens inlcuding it's County Judge of running a corrupt vote buying scheme.  According to the Louisville Courier Journal among those convicted are former Circuit Judge R. Cletus Maricle (pic) and former school Superintendent Douglas C. Adams.  In addition to vote buying, the convicted the defendants of mail fraud, and extortion charges. 

The original indictment alleged that Maricle and Adams were political bosses who used their positions to steer the corruption. Others chose election officers to help with buying votes; paying voters; and lining up people to sell their votes. Testimony indicated that the defendants participated in the scheme by checking voter lists to identify peersons who would take bribes and lined up people to drive them to the polls, where precinct workers made sure they voted correctly and gave them a sticker or ticket to redeem for their payment.  The Judge admitted on the stand that he had purchased votes in the past, but Judge Maricale claimed he had not purchased votes during the periods covered by the indictments obatined by the federal prosecutors. 

The jurors weren't buying.

What If Jesus Were Tried Under Texas' Death Penalty Law?

The Dallas Morning News has an intriguing interview with law professor and former federal prosecutor, Mark Osler (pic) who poses the question, What if Jesus were prosecuted under the Texas Death Penalty statute?

Bearing in mind that actual innocence is not an obstacle to death in the Big T, what chance would Jesus have?

Editor, Michael Landuaer does an awesome job of confronting the issue of this very bizarre practice in this death-wish region of our Country.  Professor Osler is a very brave man, to recontextualize the debate in such a startling perspective.  Maybe he will turn more than a few hearts. 

You can read the interview at the link.

6 1/2 Years to Enter Judgment, C'mon Judge!

The 5th U.S. Circuit Court of Appeals is all over Chief Judge Henry Wingate (pic) for taking more than 6 1/2 years to perform the ministerial act of entering judgment in a jury verdict rendered in his courtroom in 2002.

Okay, this may sound like inside baseball for your non-attorneys, let me explain: a jury verdict and a judgment are not the same thing.  A judgment is an order entered by the Judge.  Judgment entries are ordered by Judges all the time in cases of all sorts of situations.  A jury verdict is not a judgement until the Judge records the verdict in a judgment entry.  This ministerial act of the court makes the verdict enforceable, and appealable.  Time frames begin to run after a verdict is "reduced" to judgment, conversely nothing happens when the court fails to record a verdict as a court order. 

It is axiomatic that a court "speaks through its docket" which means that the court by recording its decisions establishes the framework for the litigants to prosecute their claims, conduct their discovery and pursue their remedies.  A docket is a record maintained by the clerk of courts, that the court, the attorneys, the parties and others can refer to see what is going on in a case. Court dockets are mostly online and can be looked at in most courts 24/7 via your internet hook up.  The court that ignores the administrative functions leaves the litigants in limbo, which is what Judge Wingate did in the case of Jimmy Ford versus Brandon Technologies, according to the Clarion Ledger story.

The Fifth Circuit appellate panel noted that this is not the first time that Judge Wingate failed to take administrative acts that are expected of him as a U.S. District Court judge.  Whoa!  I can't say I've seen a recent U.S. Circuit Court panel as agitated at a U.S. District Court Judge as you see in this opinion.  You have got to wonder what has paralyzed Judge Wingate?  I, personally, know the feeling--a slight difference, Judge Wingate  has a well paid and fully staffed administrative office which the Court of Appeals was at pains to point out to him, so how did this happen and why does the appellate panel feel the need to point out that this failure on Judge Wingate's is part of a pattern? 

To Judge Wingate's credit he owned his responsibility for the failure.

Thursday, March 25, 2010

Maricopa County Update

According to the ABA Journal, John Gleason,  head of the Colorado Supreme Court disciplinary authority, has been appointed by the Arizona Supreme court to conduct the disciplinary investigations into County Attorney Andrew Thomas and Sheriff Joe Arpaio.  This is a particularly astute move by the Arizona Supreme Court in light of the vicious fighting and claims of conflict of interest. 

Additionally the Arizona Repubic is reporting that one of the Maricopa County Judges frivolously sued by Thomas and Arpaio for racketeering is now contemplating a malicious prosecution lawsuit.

Finally, one of the County officials who has been repeatedly indicted by County Attorney on trumped up charges brought by Arpaio and Thomas, only to have visiting Judges dismiss the indictiments--County supervisor, Don Stapley has called Arpaio and Thomas, "evil." 

Fear seems to be striking out in Maricopa County.  The Stalinist terror has come to an end.

Fugitive Found After 38 Years, Running a Wedding Chapel

The Columbia, Missouri Tribune (with a big hat tip to KC Crime Blog) has this incredible story of Frank Dryman a convicted murder who disappeared off of parole for 38 years to turn up in Pinal County, Arizona running a wedding chapel under the name, Victor Houston.  Apparently Dryman/Houston had so assimilated into Arizona society he befriended severeal Pinal County Sheriffs over the years. 

Dryman had orginally been sentenced to death by hanging in Montana for shooting the 1955 shooting death of Clarence Pellett.  Dryman a hitchhiker at the time of the killing had been picked up in a blizzard by Pellett who Dryman shot in the back six or seven times.  The Montana death sentenced was changed to life in prison and after 15 years Dryman was out on parole.  In 1972 Dryman vanished "into thin air," only to turn up in 2010 happily marrying Arizona couples.  Clem Pellet a surgeon in Washington state, and the murder victim's grandson, hired a private detective to solve the family mystery which led to the recent capture of the long time fugitive.

Dryman was 16 at the time of the crime, he's 78 now.  Here's link to the Arizona account of the recent arrest.

Wednesday, March 24, 2010

Hit In the Head With Hockey Puck At Chuck E. Cheese, That's a Lawusit is reporting on the lawsuit filed over the injury sustained by the hockey puck to the head at the Skokie, Illinois, Chuck E. Cheese. 

A Chicago area woman alleges in her lawsuit that she took a hockey puck to her cabeza suffering a head injury with memory loss (this may actually be a blessing if she was eating what passes for pizza in these joints.)

Reyna Mason, 45, filed a lawsuit in February against the parent company of the childrens' party palace:  CEC entertainment, Inc.  Mrs. Mason says the restaurant didn't take adequate precautions to guard against injury from the air hockey table.  Mrs. Mason was in a booth, eating pizza and drinking pop at a Skokie Chuck E. Cheese's when a puck flew from an air hockey table and struck her on the right side of the head on Feb. 22, 2008, according to her attorney Sheldon Aberman.

Mason was there with her 9-year-old son as well as a friend and his 10-year-old child, Aberman said.
Frankly, when my children were small I had the occasion to be in a few of these places, and I would think any potential juror who's had the experience would be biased and prejudiced in favor of the plaintiff as these places are preternaturally hostile, chaotic and emotionally injurious HELLS-ON-EARTH!

Crouching At My Door

"If you do what is right, will you not be accepted? But if you do not do what is right, sin is crouching at your door; it desires to have you, but you must master it"

Maybe you recognize this expression, maybe you don't.  My eyes are open to it almost as if I had never heard it before, and yet I know I've read it countless times.  It is God's injunction to Cain, his warning immediately before Cain kills his brother.  The Old Testament Creator warns Cain in terms we all can understand, and yet do we ever pause to think about what this means in our own lives?

Perhaps I thought God was telling Cain about Satan, or the serpent, or some exterior force, warning Cain not to do what God knew he would do anyway.   Let me be presumptious, I think God was talking about ego (and free will,) and I don't mean Freudian notions of ego; I think God is talking about our distorted projections of self--in fact the sin crouching at our doors is the very thing I've unsuccessfully wrestled with my entire life.  In trying to do good, I again and again gave in to my opponent, my ego, my perverse view of who I am.   Oh, I stood for this or that, but what I did and what I failed to do emanated from my failure to wrestle my darker angel, my opponent, my ego, myself. 

When I embraced the notion of the "criminal under my own hat,"  I was trying to accept a judgment of myself that I heard from the outside.  I knew that I was undertaking a journey, but I did not relaize that this journey would actually bring me within sight of a real self-awareness, or that the self-awareness would be so painful.  Oh, I suspected the legal and disciplinary outcomes would be painful--but, that the genuine insight into who I am would cause me to flinch,  Wow.  I am shaken to my core.  And as I look around, people that I reflexively dismissed as clueless and probabaly not worth the time of day, they turn out to be the ones that have the most insight.  Who am I becoming?  I'm scared, but give me time.

Marrying for Money, That's Illegal in Kentucky, No Kidding!

The Cincinnati Enquirer has this incredible story of the widow convicted of "exploiting an adult" under a new Kentucky Criminal statute.  The widow, Cathleen Kenter-Nevins faces 10 years on 3 counts of exploiting her husband, a mentally and physically handicapped adult 27 years older than her.  Here's a excerpt from Jim Hannah's story:

A 40-year-old Burlington woman was convicted Tuesday of financially exploiting a man 27 years her senior [...the prosecution] was unique because the defendant, Cathleen Kenter-Nevins, was the first person charged with the felony to go to trial and receive a verdict, Boone County Commonwealth’s Attorney Linda Tally Smith said.  'It was plowing new ground in that aspect,”'she said.
[. . .] Senior Judge Steve Jaeger sentences her April 15 in Boone County Circuit Court.

The law had been in effect 33 months when a grand jury indicted Kenter-Nevins in March 2008. Court records state she stole about $1 million from Danny Nevins, a mentally and physically impaired man who died in March 2008 at the age of 66 after being hospitalized with pneumonia.  Kenter-Nevins declined to comment on the verdict as she rushed out of the courtroom with a Global Position System monitor strapped to her ankle that tracks her whereabouts while she’s free on bond.

Jaeger handed down his verdict in the bench trial that stretched from April 16 to Oct. 19 when prosecutors submitted their closing arguments in writing. The trial was plagued with lengthy delays that included defense lawyer Charles Schaffner claiming that prosecutors withheld evidence.  While Jaeger refused to declare a mistrial after the claim of prosecutorial misconduct, Smith said the defense lawyers contentious personalities had threatened to turn the trial into 'a farce.'
The trial started when [defense attorney] Schaffner used his opening statement to compare the case to a story by Damon Runyon, famous for writing the story on which 'Guys and Dolls'  is based. He told Judge Jaeger that the witness list was filled with odd people and gamblers, whom he described as 'colorful characters.' His characterization of the trial came to fruition as witnesses were called to describe how Kenter-Nevins befriended Nevins at an Indiana riverboat casino, married him in the back seat of a car in Tennessee and stole his money by selling off his family homestead near Dayton, Ohio, for $1.1 million – $2 million less than the asking price.

A retired sea captain who briefly moved to Kentucky to breed thoroughbreds even took the stand to say Kenter-Nevins confessed to the crime. Despite the damning testimony, the retiree confessed his love for Kenter-Nevins and said she remained the beneficiary of $100,000 in his will. Kenter-Nevins, a self-confessed gambling addict, was nearly broke when she met Nevins in March 2006, according to court records. Smith said during the trial that Kenter-Nevins must have thought she had 'hit the jackpot' when she was introduced to wheelchair-bound man.

Nevins was an eccentric man who was the child of elderly parents, his father being 75 when Nevins was born. He lived off a trust fund in the family’s Dayton, Ohio, area mansion with about 50 cats until the home became so dilapidated he moved to a motel. He liked to travel, eat at Bob Evans and hang out at a Fifth Third branch where he showered his favorite tellers with 13-pound boxes of chocolates. Nevins gave several people power of attorney over his affairs over the years. They all made questionable financial decisions on his behalf before he met Kenter-Nevins, according to court records.

A month before the pair met someone else took Nevins to Las Vegas where they stayed at the Stardust Resort & Casino and spent an estimated $40,000, those records state. Another person with power of attorney let Nevins’ health insurance lapse, something he didn’t know until he was hospitalized with a stroke in September 2005. Kenter-Nevins claimed in court she was looking out for Nevins’ best interests when she moved her soon-to-be husband to a Franklin, Ohio, home she shared with a former lover and her teenage son. The move took place just days after their initial meeting.

Within three months of the meeting, Nevins moved away from the Dayton, Ohio, area for the first time in his life to a home in Burlington with Kenter-Nevins. He had no immediate family and his lifelong friends and acquaintances testified at trial they lost contact with Nevins for a year after the move.  During that year, Kenter-Nevins went to Boone District Court several times to gain legal control of Nevins’ finances and become his guardian, according to court records.

Despite judges placing restrictions on how Kenter-Nevins could spend the money, the trial was filled with testimony about her spending habits. She purchased seven cars and three homes within 13 days of gaining near unfettered access to Nevins’ money, according to court records. More cash was withdrawn at automated teller machines at casinos, those records state.  Friends from Ohio who couldn’t locate Nevins and a suspicious bank teller eventually called authorities in both states, and Kentucky Adult Protective Services began to investigate. Kenter-Nevins was summoned in September 2007 to district court to explain how she was spending Nevins’ money.

Less than 24 hours after that court appearance, Kenter-Nevins drove Nevins to Tennessee to get married. After the closest county clerk to the state line refused to issue a marriage license, the pair got a clerk in a neighboring county to issue the license.  They were married in a Tennessee state park while Nevins sat in the back seat of the car.  By December 2007, Nevins’ health had deteriorated to the point that he was placed in a nursing home. He died three months later, but not with Kenter-Nevins at his side.

She was spending the majority of her days at casinos gambling her husband’s mone away.
Wow, I really don't know how I feel about this case.  Don't we all exploit one another in our marriages and relationships?  What makes this different?  What makes this criminal?  That this woman was so transparent about it, or so single-minded in the pursuit of her own addictions?    While this certainly sounds like immorality, how does it become criminal behavior?  Isn't this just some version of the age old gold digger story?  Kentucky?  Isn't this the place where you can legally marry your sister?  Just kidding.

In immigration law, the "meretricious marriage" is a common scheme to obtain a green card (remember the movie with Gerard Depardieu?)  Those are marriages in name, alone, so that in one instance many years ago I was asked to defend a guy who married what turned out to be a woman old enought to be his his mother--in fact the "wife" turned out to be his girlfriend's mother--in attempt to obtain "residency" status.  When last I heard, my former client was back in Syria.

Your Bicycle Stereo Can Get You Cited

The Lorain (Ohio) Morning Journal is reporting on the excessive noise citation issued to Juan Rivas-Figueroa, age 20 who was riding his bike hauling a child's pull along trailer (unfortunately the article did not include a photo, but the illustration above might give you an idea of what was involved) becuase Mr. Rivas-Figueroa and equipped his bike with a full car stereo and speakers.

 According to the account, "The officer told Rivas-Figueroa that he was playing his music too loud and that the police department had received several complaints in regards to a bicycle matching his. He was riding a black BMX bicycle and the trailer was purple." The stereo was powered by a specially-oused car battery.

A slightly more elaborate version of this fine groovin' example of music on wheels.

Tuesday, March 23, 2010

Virtual Probation Violation--Um, No.

The 7th Circuit Court of Appeals has issued a ruling that a "virtual parole revocation hearing"--the Judge was in Florida and the parole violator was in Rockford, Illinois--is a no go according to the Milwaukee Journal-Sentinel. 

 Here's a excerpt from Bruce Vielmetti's article on the 7th Circuit decision:

"Early last year, Christopher Thompson was arrested on drunk driving charges, while he was on supervised release for a bank robbery conviction. A revocation hearing was set March 25, when he, his lawyer and the prosecutor assembled at the Rockford courthouse. The judge, however, had taken to the balmier surroundings of Key West, Fla., where he presided over the hearing via videoconference -- over the objection of Thompson's attorney.

'I can both see and hear everybody in the courthouse in Rockford and can comprehend everything that has transpired,' the judge said from Key West. Then he sent Thompson back to prison for a year.

But on Friday, the 7th Circuit Court of Appeals reversed the ruling, saying the it violated federal rules of criminal procedure.  Writing for the court, Milwaukee's own Judge Diane Sykes agreed with Thompson's argument on appeal. She cited several definitions that 'suggest that the 'appearance' required by this rule occurs only if the defendant comes into the physical—not virtual—presence of the judge.'"
I've talked about this sort of thing in the context of "small law" cases, remember 78 year old Getrude Shaink Trudeau who spent two weeks in jail, last Thanskgiving following a "video arraignment?"  The revocation of parole for a bank robber is U.S. District Court is far from small law, the action of this U.S. District Judge really offends notions of "due process."  As I've said before, these Judges are the cream of the crop, so it's surprising to hear a story like this one.

Hey, this Bar Has a Dress Code!

Elbert Lewis Thompson, II is wanted on a Michigan warrant for bank robbery.   Mr. Thompson was arrested while sitting in a Pittsburgh, Pa. bar, JR's Bar (saloons of quality rarely require more than initials for names don't you think?), wearing only a hospital gown with an IV sticking out of his arm. 

Apparently Mr. Thompson had been hospitalized after a traffic stop north of Pittsburgh.  After he complained of chest pains and feeling faint, he passed out.  He miust be better now, or he was until the Police showed up and took him into custody on the Michigan warrant.

The thing is Elbert Thomspon is only 20 years old according to he Pittsburgh Tribune report, so one wonders how he was able to produce the required ID to purchase a beer?  Maybe the hospital attire made him look older than his years.

This story reminds me of scenes from near the OurTown local metropolitan hospital campus which abuts a very urban street scene populated by bars, wig shops, small convenience stores, and check cashing store fronts.  The hospital itself is a pretty distinquished teaching facility with awesome physicians and skilled health care professionals. 

It is not uncommon to see patients like the gentleman in the pic, pushing their IV cart along the street puffing a cigarette, especially in the era of the smoke-free hospital and workplace.  Pretty amusing juxtapositions, the street, the hospital gown, the medical equipment, and the smoker. 

Monday, March 22, 2010

Flabby-Assed County Attorney Suspended

Well there is another account of an attorney alleging screwing the client and the disciplinary (this time in Iowa) authorities treating the offense as something less than the heinous act that it is.  Jesse Marzen drew an indefinite suspension not to exceed 6 months.  This elected official represented a mentally ill woman in his seperate private practice and according to her engaged in sexual realtions with her in lieu of attorney fees.  She described his buttocks as "flabby."

At the time the allegations surfaced, Marzen was in a race for Floyd County attorney which he won.  Marzen disclosed intimate and confidential information about his client to the media.  The Iowa disciplinary authorities sanctioned this guy for those disclosures but dismissed the sexual misconduct charges, as "not proved."  I linked the Iowas Supreme Court opinion and you can see for yourself why I think this guy got a huge break on the sexual misconduct charges. 

It is abundantly clear from the evidence that Marzen and the woman called "Jane Doe" in the Iowa Supreme Court opinion had a personal relationship.  She says Marzen had repeated sexual intercourse with her. 

She descirbes his buttocks and his unclothed appearance as being that of someone who has lost an enormous amount of weight and carrying skin folds around his waist and buttocks.  Marzen weighed 350 pounds in school and weighs half that now.   She also describes a mole on his back, which he admitted he has, but claims she "could have seen" at the town pool or while he was cutting his grass which he says he does shirtless.   Various witnesses claim to have seen him at her house, even exiting a bedroom with her.  She described the layout of his house in detail, but he denies that she waas ever in his home, but he acknowleges being in her home on several occasions, "purely business."

What is apparent, is that Marzen set himself up.  His accuser suffers from at least one diagnosed mental defect and Marzen handled his relationship with her in a way that invited the allegations which may be true, at least one of the hearing panel memebers thought the allegations were proved.  Iowa's Supeme Court found credibility "problems with both Marzen and Doe." 

In the end, Marzen's sanction came from telling a local television channel that his client had had a sexual relationship with a probation officer and that she did not pay his fee bill.  Both matters were subject to professional obligations to maintain confidentiality.  Mr. Marzen was throwing mud on his client to deflect her accusations because Marzen was in a political contest for County attorney.   Look, however you look at it, Jesse Marzen screwed his client.  His 6 month suspension is a trravesty.

Oh, and she is suing him. 

Let me repeat myself, don't screw the client!

Worst Drivers By Profession; Yep, That'll Be Lawyers has conducted a survey on the worst drivers by profession.  No big surprise here but lawyers, and I ain't even talking Bad Lawyers, lawyers generally top the list.  While I have no insight into the methadology of this survey, I give you the list:

Top 10 Most Dangerous Drivers by Profession

1.Attorney/Judge – Why chase ambulances if you can bring them to you?

2.Financial professionals – Do they cover their cars with a “tarp”?

3.Government worker (GS6) – Fender benders are a little known GS6 requirement.

4.Bartender or Waiter – It’s just a different way of getting served.

5.Other – Professional – AKA “I was hit by that ‘other’ guy.”

6.Dog Groomer – Following the rules of the road must be a real pet peeve.  [Huh?!]

7.Marketing/Advertising – If they have road rage can we call them “Mad Men”?

8.Barber/Stylist – Mostly likely to cut you off.

9.Coach – Always crying foul.

10.Nurse – Bedside manner: Great! Roadside manner: Yikes!
My hero, legendary class action attorney and Cy Pres founder-advocate, Pat Perotti, is one of the lawyers who has no doubt caused huge distortions in these survey results.  For one thing even before the common era of the cell phone/smart phone distraction, Pat would haul ass during his morning commute, highlighter and brief in hand careening all over the road.  You could not pull beside him and attract his attention even at a red light, because he would be engrossed in some sort of fugue state even when he wasn't proof reading pleadings.  He was famous for it; amazingly Pat never lost his driver's license although OurState's 12-point system was severely tested.
Personally I confess to be be a reformed aggressive driver.  It is only the fact that my daughter came of driving age that I came to my sanity and realized that I need to be a teacher by example.  This reality began to alter some pretty obnoxious and impatient driving habits.  My terror about my children learning poor driving habits from me has been altered some pretty piss poor skills.   My daughter dropped me off at a local repair shop one afternoon 6 or 7 months after she got her license and pulled out of the lot with a "smart phone" in hand.  When I reached home 30 minutes later, she lost the smart phone and the car keys for a few weeks.
I caught this article up at the Lowell Sun, and their interview with local lawyers is pretty amusing.   We are just so full of ourselves.  My life would be so much better if I could have slowed down, dismissed my ego and the static in my head, and just existed within myself as I drove to work.  My bad driving was symptomatic of all my other pathologies.  All my creations of my ego.

Sunday, March 21, 2010

Gayle's Bard Blog--I Crave the Law

Don't miss the current post at Gayle's Bar Blog.  This is the her post/meditation on Shakespeare's seminal dramatization of the controversies that still animate modern legal debate, the letter versus the spirit of the law.  Or to put it another way, what role if any does mercy play in our insistence upon justice.  Gayle's blog is always excellent but it's a particular must read, because she is blogging on Shylock and the famous courtroom scene.

Yaweh Is My Realtor, Here on the Third Rock from the Sun

The other day I was telling you about the "smiling drifter" who got "personal" with the Judge whom he called "Deborah" (her first name) at a preliminary hearing. Brent Arthur Wilson was in court on a case on a charge of  breaking and entering into a foreclosed and padlocked home. His "B & E" came to light whe he submitted a deed claiming ownership of the house at the county recorder's office near Polson, Montana. 

This morning the Missoulian followed up with an interesting story about the eccentric nature of the deed language the drifter, Brent Arthur Wilson utilized  It turns out that the deed mimics langugage in deeds filed previously in Bozeman, Montana purporting to be grants of real property from Yahweh.  For a "legal description" of the property (precise descriptions of location) the real estate is described as being on the  "third rock from the sun." 

Maybe my right wing pal, and sometimes commentator, "the Pope" will weigh in with insight on these type of real estate filings.  According to the Missoulian story, this deed language turns up in financial documents and at websites like: - and (the latter of which has been shut down.)

The smiling drifter appears to be part of the fringe, anit-government, anti-taxation group.  His interaction in court tends to corroborate this impression.  The failure to give recognition of the jurisdiction of the Judge e.g. calling her by her first name instead of "Judge" or "Your Honor," and asking about the "establishment of a trustee," are all signature attributes of that strange and anarchic worldview.

Confession Is Good for the Soul!

The guy in the picture is Tory Davis, he and buddy, Donald Martin West, II, both from Tennessee were visiting the big city.  They had pulled over just outside of the Lincoln Tunnel in their beater with tinted windows and no license plate when the New York City Port Authority Police pulled up behind them.

 According to the report in the New York Post upon questioning these two "slack jawed yokels" (as the Post calls them) promptly confessed to possessing scads of pot, guns and ammo as casually as most folks share resident addresses and dates of birth. As you can see from Mr. Davis' mugshot they have not seen as much of Broadway as they might hope to see. 

The Matrix Says, Kick Your Ass. Grandma!

The Lousiville Courier-Journal is relating the story of the 57 year old Okolona, Ky. grandmother, Sharon Ramage, who was ironing clothes in June of 2007 when a flash grenade exploded at her back door (pic of home) , the door was shattered with a 45 pound ram, and a SWAT team stormed in.  The team comprised of Lousivelle Police threw Mrs. Ramage to the ground and handcuffed her; oh yeah, they seriously re-injured her post surgical knee.  A helicopter was hovering in the sky over the house and a $300,000 armored vehicle was at the stand-by.  Why? 

No reason. 

Well, not quite, the Louisville police were looking for her son, because he had processed film at the local Wal-Mart snd it contained a non-pornographic nude image of her son, Michael Ramage with his two young sons.   By the way, Michael Ramage was nowhere to be found. 

Ultimately all charges against Michael Ramage were dropped for the simple reason that he had not committed any crime.

Why did this occur?  Well apparently, the Lousiville Police and police departments around the country use a "scoring matrix" to assess risk assessments in serving warrants, which explains why we've been seeig these ridiculous looking armored vehicles pop up all over he internet that local police are acquiring as the toys, er, tools of law enforcement.  As explained in the news account, the police are "slavishly" using these scoring matrixes to determine when to go commando, and God forbid if you're in the way, or for that matter the wrong person, they will kick your ass. 

Grandma is suing, and the U.S. District Judge has given the Louisville Police until Monday morning to submit a response to her motion for summary judgment for violating one or two of her Constitutional rights.  

Let's be rational for a second, if justice is nothing more than a computer algorithm we are in a whole lot of trouble--the great late Phillip K.Dick forecast this dystopian future in Minority Report. 

Douglas County Crime Scene Investigator On Trial for Manufacturing and Planting Evidence

The Omaha World Herald is reporting on the trial of the Douglas County, Nebraska, Chief Crime Scene Investigator.  The allegations against David Kofed are essentially that he is a corrupt cop he manufactured and planted evidence in two grisly Nebraska murder cases where apart from the evidence Koefed manufactured and planted, no physical evidence existed.

In one case, shotgun slayings of the Strocks, a Murdock, Nebraska farm couple, blood evidence planted by Officer Kofed led to the conviction and incarceration of two men: Nicholas Sampson and Mathew Livers neither of whom had anything to do with the crimes.  In a twist right out of crime novel which should send a chill down the spine of anyone who thinks that just because someone "confesses" to murder the state can comfortably execute the defendants,--Matthew Livers "confessed" and in a deal with prosecutors implicated Sampson.   Eventually the real killers:  Jessica Reid and Greg Fester of Wisconsin, both pleaded guilty and are serving life sentences!

The trial is hair-raising, and a real cautionary tale that seems to be emerging as a theme in new accounts around the country;  rogue cops, prosecutors, medical examiners, short cutting their way to nail the bandit pervert justice and take lives, libety and respect for the law.