Tuesday, September 28, 2010

The Wisconsin State Journal on Kratz--Stop Screwing the Client, Dammit

Mike Nichols, a columnist at the Wisconsin State Journal has a terrific and darkly funny column on that sexy beast District Attorney Ken Kratz.

UPDATE: The Fond du Lac Reporter is carrying calls for Kratz to be disbarred.   By the way, more victims are coming forward.  As I said at the outset, guys like this are predators and opportunistic perpetrators, there is no "one victim."  It's like the rapist, usually your 40 year old rapist who's finally been caught committed many, many crimes along the way.  You don't start your criminal sex career with a single isolated rape. 

FURTHER UPDATE: Cap Times is saying that the Wisconsin Attorney General Van Hollen is implicated in the scandal and is calling for an investigation.
I guess if the Bad Lawyer stood for anything, it was that first and foremost comes the client.  The client deserves to be treated respectfully and honestly.  This requires not exploiting the client, the client's spouse, or the client's property.  Stop screwing the client. 

This is my last post for awhile, as I indicated in a comment earlier today.  I have chosen hardship as the path to peace.  Watch this space.  Perhaps my path will permit to resume the ranting and raving soon, I don't know.

Thanks for reading.

Fulmer, Fake Lawyer

Reporter Jim Hannah at the Cincinnati Enquirer has this weird story about the Boone County local man who appears to have been masquerading, no actually fraudulently functioning as a practicing attorney handling Probate and family law matters for a long time, undetected.  Hannah's story follows:

"A man who has been practicing law at the Boone County courthouse for several years isn't a licensed lawyer in Kentucky.  Kelly F. Fulmer (pic, left)  of Walton, who also has been the chairman of the Walton-Verona school board, represented people in 13 probate cases and seven civil cases - mostly people in divorce cases - since 2006 using a fake bar license number. He even listed that number in the 2010 Northern Kentucky Bar Association legal directory.

A call to the Kentucky Bar Association or a check on its website during the last four years would have confirmed the number is fake and no 'Kelly F. Fulmer'  is licensed to practice in the Bluegrass.  Boone and Gallatin counties Commonwealth's Attorney Linda Tally Smith said Wednesday that she had learned there was no record of Fulmer being licensed and that the Boone County Sheriff's Department had launched an investigation.

It is a misdemeanor for someone to practice law in Kentucky without a license, but Fulmer could face felony theft by deception charges if he accepted money for his legal services.  It is unclear whether Fulmer had been acting as an attorney in other Kentucky counties, but the Kentucky Secretary of State's office has him identified as a lawyer in corporate records for several limited liability corporations.

Fulmer didn't respond to messages left at his home, office and on his e-mail seeking comment, but he resigned Wednesday as chairman of the Walton-Verona school board. He was first elected to the board in 2000.  Fellow board member Bill Wethington said Fulmer didn't give specifics about why he was resigning but told fellow members they would be reading about it in the newspaper. Wethington will be the acting board chairman.

Biographical information on the school district's website stated as of Wednesday morning that Fulmer received a law degree from Michigan Law School. The University of Michigan Law School said it has no record of Fulmer graduating.

The website also states that Fulmer graduated from Northern Kentucky University, but that school's alumni association doesn't have a record of him receiving a degree.  Thomas More College confirmed the school district's website information that Fulmer graduated from the small Catholic liberal arts school in Crestview Hills. He earned a bachelor of arts degree in history in December 1998 and an associate of arts in pre-legal studies.

Wethington said Fulmer would have provided the biographical information to the school board and that he presented himself as a Michigan law grad.  'I've known Kelly for a long time,'  Wethington said after being told of the investigation. 'I'm greatly surprised at these allegations, and I'm praying ... he will be able to vindicate himself, but I guess the legal process will follow its course.'  Wethington said Fulmer had always been aboveboard in any personal dealings.  'It is a shocking allegation - believe me,'  Wethington said.

The Fulmer whose qualifications to practice law are in question is not the same person as William K. Fulmer II, who is a licensed lawyer who has had a practice in Florence since 1991. William K. Fulmer II, whose middle name is Kelly, said he has never been associated with Kelly F. Fulmer in legal or other business ventures.

Kelly F. Fulmer grew up in Walton and graduated from Walton-Verona High School in 1994. He is active in politics in southern Boone County and was campaign treasurer for Walton City Council member Wayne Carlisle, who is running for mayor. Fulmer resigned Wednesday evening.  When Carlisle was called by a reporter seeking comment on the investigation, he said he thought it was a prank call from a friend.  'I am just absolutely devastated over it,' Carlisle said. 'I would have never thought something like that. I'm not going to get a whole lot of sleep tonight over this.'

Florence lawyer Edward S. Monohan V became suspicious of Fulmer's credentials this month when a woman came to his office after she became unhappy with Fulmer's representation during a probate matter in Boone District Court.  He said he had never met Fulmer, but immediately became suspicious of his qualifications because of his 'sloppy' legal work.  'I thought, 'No attorney would ever do this,' Monohan said. 'The strange thing was that everyone thought this guy was an attorney,' he said.

Monahan claimed in court filings that Fulmer had misappropriated some money from an estate. Four days after Monohan asked a judge to order Fulmer to turn over the money, Fulmer gave the court a cashier's check from The Bank of Kentucky for $449,301.

Monohan said he is concerned about the ease someone was able to practice law without a license. 'There needs to be some changes made out there. You got people out there who are relying on attorneys to do things the right way. The big concern I had was things were being done not the right way, and there was a lot of money involved.'"
When I began working in law offices in downtown OurTown law offices, as a law clerk, in the late 1970s there were still practicing attorneys who had never gone to law school.  At some point years before you could "study for the bar," and if you were able to "pass the bar exam" you became an attorney, no formal education required.  I suppose this happened more often in family run law firms where you could start out working for a parent, grandparent or uncle as an apprenticeship.   

In my early years in the profession there were no "registration" number assigned to each attorney (in fact when numbers came into being, I was one of the first 3000 lawyers registered in OurState.)  All lawyers in those years traditionally displayed their "license" ontheir office walls which was issued by the OurState Supreme Court.

This news story makes me wonder how many of the so-called "lawyers," never actually went through the formalities.  I'm guessing more than a few.  It's really interesting to me.  My era really saw the beginning of codified rules, uniform statutes, and strict professional responsibility supervison.  I was talking to an old friend recently, and he commented that "all the old 'characters' are gone."  Not quite.

A Really Bad Judge, Revealed

Various websites are noting that "Judge Judy" a faux-small law court "reality" show has surpassed Oprah in the ratings.  The "Judge" on Judge Judy makes beau coup bucks (millions), for her really obnoxious and disrespectful take on "judging."  Now a wanna-be "Judge Judy" has been revealed to have turned her courtroom into an audition studio.  The extended account from Greg Moran at the San Diego Union-Tribune is pretty surprising:

The 21-page complaint the Commission on Judicial Performance has brought against San Diego Superior Court Judge DeAnn M. Salcido itemizes more than three dozen instances of what it contends is a “pattern of misconduct” and abuse of authority.  At times, Salcido led the court’s audience in chanting slogans and regularly mocked a defense attorney who appeared before her, according to the commission, which is charged with disciplining judges.

The allegations span from January 2009 to March of this year, though many of them concern a single day — May 1, 2009 — when she used her El Cajon courtroom to film an audition for a “Judge Judy”-type reality television program.  She arranged for a television production crew to film her in session for the possible reality show, going so far as to arrange her calendar to 'line up' the most interesting cases for that day, the commission says.

The commission, which filed its complaint last week, has given Salcido 20 days to respond to the allegations in writing. A public hearing on the case, with testimony and witnesses, could be held in the coming months. She ultimately could be removed from office.  In her only public comments so far, Salcido released a statement on Thursday saying that her 'style' on the bench is different, employing humor and  'tough love' on those who come before her. She also offered a hint of what may be part of her defense.

'I believe the time is now ripe for our judicial system to begin examining whether the traditional demeanor and approach of the judiciary is the best means for accomplishing justice, particularly in a rapidly changing world with a culturally diverse population,' Salcido said.

The commission’s complaint lists 17 times when Salcido’s conduct and comments crossed into misconduct on the day of the audition taping. They include:

• When a lawyer asked for a moment to consult with his client, Salcido asked the audience, Does he need to call the lifeline? Try to tell him let’s make a deal. I think he needs to call the lifeline. Yeah. Want to poll the audience? What should he do? Take the deal, take the deal, take the deal.'  'The lawyer then said his client was opting to enroll in a court probation program instead of going to jail for 60 days, because he was the only person who could take care of his 75-year-old ailing mother.  'Then God help her,' Salcido said.

• A defendant with mental health problems had been hearing voices. 'Okay. And we talked, right?' Salcido said, according to the complaint. 'You’re going to tell me if they say, ‘hurt the judge, hurt the judge.’

• On two occasions, she asked the audience to repeat in unison a slogan — 'Do or do not, there is no try' — when defendants were speaking to her. The phrase is posted in her courtroom.

• Salcido asked the audience to chant 'woo, woo' during the videotaping. They obliged.

The complaint also gives examples from other days of Salcido’s courtroom commentary, including:

• Three times she made disparaging remarks about Deputy Public Defender Richard Longman. She called him 'the slowest public defender we have in the courthouse.' Salcido told the father of one client, He’s named Mr. Longman' for a reason.'

The complaint says that Salcido’s negative comments about Longman 'created the appearance' of discouraging a defendant’s legal right to consult with a lawyer.   Longman was out of the office Monday and not available for comment. Chief Deputy Public Defender Randy Mize declined to speak about Salcido’s comment regarding Longman because it is part of the pending case before judicial commission. 'We were aware of it,' Mize said.

• A defendant came to court wearing an Oakland Raiders jersey. Salcido, an avid Chargers fan, asked him which door he wanted to use to leave. The choices were the 'Chargers door,' used by the public to enter and exit the court, or the 'Raiders door,' which is where people sentenced to jail leave the courtroom.  Salcido asked a woman in the courtroom who was with the man if she thought he was 'smart' coming to her court in a Raiders jersey.  'No?' Salcido said. 'What does that say about you … and the kind of men you pick?

• When a defendant accidentally called her 'sir,' Salcido pushed herself away from the bench while still in her chair and said, 'Do these look like the clothes of a sir?” She then raised her leg above the bench, held her leg by the ankle, and said, 'Do these look like the boots of a sir?'

• She ripped up a letter from a doctor that was provided by a lawyer for a woman who could not make her court date because she was pregnant, out of state and not allowed to fly.

• Salcido had a woman taken into custody for a brief period of time for contempt of court, ordering deputies to put her in the court holding tank because she believed the woman was being disrespectful, without first holding a hearing as required.

Mario Conte, a law professor at California Western School of Law and a former defense lawyer, said that some judges can be eccentric and irreverent, and each judge runs a courtroom in a different way.   'At times a good sense of humor to liven things up and relax things can be a wonderful thing for a judge to have,' he said, especially in high-volume courtrooms with full daily calendars.   But the jokes can’t be made at the expense of clients or lawyers, Conte said.  'You have to treat people with respect, he said. 'You can’t use them as a prop for humor.''

He would not say if Salcido had overstepped the bounds because the case is pending and he had not read her side of the events. But he was troubled by the allegations.  If a judge is doing certain things in order to get on a TV program, I think that is objectionable,' Conte said.  If the allegations are found to be true after the commission’s hearing, Salcido faces a spectrum of punishment — from formal admonishment to public censure to removal from office.
I once dated a young woman who said she was "brutally honest" when in fact she was just "brutal."  Likewise I hear people talk about "tough love," but forget the "love" part. 

Judges and courtrooms are dramatic enough without this sort of thing.  Judge Salcido needs "treatment" not "the treatment."

Remember the Maryland State Trooper Citation for Video Recording?

Remember the motorcyclist with the "helmet cam" who got cited for recording an officer issuing a ticket?  The Baltimore Sun reports that the citations have been dismissed.  Here's an excerpt from the Sun with what the Judge had to say:

"Judge Emory A Pitt Jr. tossed all the charges filed against Anthony Graber, leaving only speeding and other traffic violations, and most likely sparing him a trial that had been scheduled for Oct. 12. The judge ruled that Maryland's wire tap law allows recording of both voice and sound in areas where privacy cannot be expected. He ruled that a police officer on a traffic stop has no expectation of privacy.

'Those of us who are public officials and are entrusted with the power of the state are ultimately accountable to the public,'  the judge wrote. 'When we exercise that power in [a] public for[um], we should not expect our actions to be shielded from public observation.'"
Bravo!  I got a lot of email on this one, something about the citations really offended my old hippie pals.

Rape 3 Teens, Get Probation

The NY Daily News has this unbelievable report of the NYC judge sentencing a serial sex offender to probation.  

"A Manhattan Supreme Court justice came under fire Monday for granting probation to a city worker who admitted he had raped or sexually abused three teen girls under his care.

Manhattan District Attorney Cy Vance Jr. blasted the sentence Justice Cassandra Mullen [who was appointed to the bench by Republican Govenor Pataki] gave to Tony Simmons, 47, as 'outrageously lenient.' Prosecutors wanted Simmons to get at least a year behind bars. 'This was an egregious breach of the public's trust,' Vance said.

Simmons, who worked for the city Department of Juvenile Justice for 16 years, pleaded guilty to raping a 15-year-old girl in a courthouse elevator, assaulting a 16-year-old in a pantry and assaulting a 15-year-old in a waiting area. He must serve 10years' probation and register as a sex offender."

Representing Clergy Abuse Victims Takes Its Toll

Reporter Denise Lavoie at DelawareOnline.com  discusses the toll paid by lawyers in clergy sex abuse lawsuits.  I was one of these. Here's her story:

"Attorney Ray Boucher (pic, right) helped secure a record $660 million settlement from the Los Angeles Archdiocese on behalf of more than 500 people molested by priests. Five days after the settlement was announced, his wife left him.

Eric MacLeish, the hard-charging lawyer whose work for victims helped spur the resignation of Boston's Cardinal Bernard Law in 2002, later suffered a breakdown, stopped practicing law and got divorced.

And Steve Rubino, once such an observant Catholic he couldn't believe a priest would molest a child, lost his faith and eventually retired from the law.

'It moved me completely out of whatever religious context I was in -- completely,' he said.

The sex scandal that rocked the nation's Roman Catholic Church took a fearsome personal toll on some of the top lawyers who dared to challenge the institution.

While many of them ultimately reaped large fees for their services, the all-consuming workload, the pressure of battling the church and the stress of listening to graphic accounts of children's suffering were debilitating.

Since taking his first such case in 2003, Delaware attorney Thomas S. Neuberger (pic, left) said Saturday, 'the stresses have been immense.'  He and his law partner/son Stephen J. Neuberger now have 98 cases against the Diocese of Wilmington, 14 claims against the Oblates of St. Francis de Sales and three involving the Norbertine religious order that operates Archmere Academy.

The elder Neuberger said he went into the sex-scandal litigation as a veteran of intense government corruption and civil rights cases, suing entities from the Pentagon to the Delaware State Police, as well as administrative agencies, counties and municipalities, but, he said, "the difficulty of litigating against the Roman Catholic Church makes cases against the Pentagon look like Little Bo Peep.

'It is at a level of intensity and difficulty that everything else in my experience pales in comparison,' he said. 'These are the most difficult cases in my 36 years of experience.'

Sylvia Demarest, a lawyer who helped win a $119.6 million verdict against the Diocese of Dallas in 1997 and later built a national database on clergy sex-abuse cases, said, 'No one can handle these cases and come out of it the same.'  Demarest, now semi- retired, said she grew frustrated with her inability to heal the wounds suffered by her clients. 'What happens to kids when they're abused and what happens to their brains when they are abused is something that we don't know how to fix,' she said.

The crisis exploded in Boston in 2002, after internal church documents released publicly showed that church leaders for decades had shuffled sexually abusive priests from parish to parish. The scandal spread across the country as thousands of lawsuits were filed by people who claimed they had been victimized.

Caring for people with the aftermath of such victimization weighs heavily on Neuberger.

The abuse survivors are people whose lives have been 'ruined ... people with diagnoses of major depression, suffering from alcoholism or drug addiction, some already having taken their lives, people with a complex of emotional and psychiatric issues,'  Neuberger said. 'The responsibility and burden of trying to hold those people together in the face of the onslaught, the slash-and-burn-delay, is almost overwhelming, almost overwhelming.'

Emotionally rattled

For MacLeish, the clergy cases reawakened memories of being sexually abused as a child.

MacLeish and other lawyers won an $85 million settlement in Boston in 2003 for more than 500 victims. But in the months after the landmark settlement was announced, MacLeish began to unravel. He developed insomnia and nausea, lost 40 pounds and couldn't work.

He was rattled by the image of a 9-year-old boy who was repeatedly sodomized over nine hours by a priest. The boy buried his bloody underwear so his mother wouldn't find out.

'The idea of him going off into the woods and burying his underwear, that really got to me,' MacLeish said. MacLeish had been sexually abused by a family friend during a camping trip at 15. And he had memories of being molested at an English boarding school he attended as a boy.

'I began to realize why I had been doing this work and how much my own abuse had affected me,' he said. He said his pursuit of the church 'was absolutely never about money.' He added: 'The wealth I received was the knowledge that I had really helped my clients and helped to change the Catholic Church.'

Rubino, who retired last year after more than 20 years of representing clergy sex-abuse victims, was incredulous after a family friend came to him in 1987 and said a priest had sexually assaulted her 14-year-old son.  'I said, 'Well, that's impossible. Priests are celibate. What are you talking about?' ' recalled Rubino, who grew up in a large Italian Catholic family.  Rubino, whose law office was in Margate City, N.J., spent the next 15 years becoming a canon law expert. He traveled all over the U.S. and to Ireland, Canada and Australia to represent victims and help other lawyers. Story after story of abuse left Rubino disheartened about the Catholic Church.

'I was a true believer. I said my Hail Marys, my Act of Contrition, I learned Latin, I served Mass, I believed in God,'  he said. 'I don't do any of that now.'  At the height of the scandal, Rubino was working 16- to 20-hour days and traveling constantly. His wife and three children resented it. 'While I was [home], I was never there,'  he said. 'I was a second away from the next text, the next e-mail, the next phone call from a client.'

Rubino's marriage survived, but Boucher's did not. Boucher's wife left him right after the 2007 settlement in Los Angeles.  'She just said, 'Look, you're on top of the world, the press is surrounding you, I haven't accomplished what I want to accomplish in life, and I just don't feel like I can stay with you,' Boucher said.

Before that, Boucher had plowed through hundreds of cases in Los Angeles, and mostly managed to 'box it up and store it away.'  But, at times, the enormity of the pain caused by the abuse was overwhelming.

In 2004, Boucher was editing DVDs of victims describing how they were raped or otherwise molested by a priest. He saw a pile of about 150 DVDs ready to be mailed to Los Angeles Cardinal Roger Mahony. Each DVD cover had a picture of the victim as a child, as they were when they were assaulted. 'I was stunned. I looked at them, and I'm sure I started to cry,' Boucher recalled. 'I will never lose that image.''

Few have regret, though

MacLeish's marriage also ended in divorce. Diagnosed with post-traumatic stress disorder, he began seeing a psychologist. Within two months, they were sleeping together and their affair led to his divorce, MacLeish said.  Neuberger, 63, said he feels lucky that instead of destroying his marriage, 'the stress has done nothing but pull us together.'  MacLeish, now a professor who teaches civil rights and criminal procedure at Plymouth State University in New Hampshire, said he doesn't regret the work he did, despite the toll it took on him and his family.

'There is not one case that I've heard of since 2004 where a known pedophile has been placed by the church into an organization where he would be able to do it again,' he said.

Rubino, 61, now spends time with his family and works as chief executive of a sports performance training center for kids. Rubino said it is a respite from the work he used to do. 'For the hundreds of damaged young lives I represented, the kids at [the center] are at the opposite end of the spectrum,'  he said.

Boucher, 53, continues to represent victims. 'I can't imagine walking away from people who are suffering from the isolation of sexual abuse,' he said. 'I don't know how -- no matter what the personal, emotional toll might be -- I don't know how you walk away from that.'
I met most of these men or talked to them over the phone in the early years of the clergy sex abuse crisis.  With Jeff Anderson, and many, many others including my former "partner" Nancy, we were the pioneers.  We took on cases that were absolutely "hopeless."  In Chicago, many years ago, we met at the behest of Jeff Anderson and Survivors Network of those Abused by Priests (SNAP.)   These are very fine lawyers who care very deeply about their clients.  Ideas like obtaining and utilizing images of survivors from the time frame of the abuse were exchanged--I had already published a brief here in OurState that incorporated black and white photographs of my then 40 something and 50 something-year old clients in their communion dresses and responded to motions to strike filed by the attorneys for the Catholic Church.

Jeff, Ray, Steve, Sylvia, and Eric have the cold comfort of eventual financial successes; while here, in OurState, the Supreme Court kept the lid sealed on the statute of limitations and the OurState General Assembly, until very recently, kept the limitation period at 1 and 2 years for victims of sex crimes.

Setting the aside the stress of a client-base, of victims of crimes on the level of soul and spiritual death as well as clients who committed actual suicides--my financial debts, and judgments accrued in the years of that effort will not go away absent some sort of unforeseen miracle.   If this sounds like the "poor me"s, yeah I'm feeling pretty low as I write this.  Almost twenty years ago, I was warned by a psychologist that the risk of acquired-PTSD was a real.  As this story accurately sets out, as an attorney having clients who have suffered these sorts of horrors and dealing with defendant with bottomless resources to crush them and you--well there's not enough money to make it worth it.

And yet, the effort by Anderson, Boucher, Demarest, Rubino, and we idiots from OurState--did change the world.  Think about this, twenty years ago, victims who came forward were dismissed as crazy, liars, fraudsters--in many cases by their own families.  I sat through deposition after deposition while these courageous men and women had their sex lives cross-examined under a microscope by lawyers for the Catholic Church.  Judges in OurState thought that was fair game, after all, these Judges were for the most part Catholic, and educated in Catholic elementary, middle, high schools and universities.  The Catholic Church gamed the system, and when the public pressure lets up, they'll game it some more.  The Church crushed me, of course, I played my own Bad part in creating and ignoring the financial black hole.

I'm exhausted, just thinking about it.  I'm shedding the tears, still.

Georgia Kills the Suicidal Death Row Inmate--Deterrence, and a Personal Note

Brandon Rhode (pic) was a suicidal death row inmate in Georgia.  He was convicted with a buddy of the heinous (really, is there any other type?) triple slaying of a trucking company operator and two children.  Prior to his execution scheduled for September 21st Rhode tried to slash his own throat and wrists; but, the heroic Georgia authorities saved his life.   Then they killed him last night. 

This is reporter Greg Bluestein's account for the Atlanta Journal-Constitution:

"A Georgia prisoner who tried to kill himself last week by slashing his arms and throat with a razor blade was executed Monday night amid heightened security for the 1998 murders of a trucking company owner and his two children.
Brandon Joseph Rhode, 31, was put to death by injection at the state prison in Jackson. He was pronounced dead at 10:16 p.m. Rhode declined to speak any last words or have a final prayer.  He was convicted in 2000 of killing Steven Moss, 37, his 11-year-old son Bryan and 15-year-old daughter Kristin during a burglary of their Jones County home in central Georgia. His coconspirator, Daniel Lucas, was also sentenced to death in a separate trial and remains on death row.

Rhode's execution had been set for 7 p.m. but was pushed back several hours as corrections officials waited for the U.S. Supreme Court to decide on his plea for a stay of execution. The court rejected appeals later that night.

Medics then tried for about 30 minutes to find a vein to inject the three-drug concoction.  The prisoner's eyes darted around the room before the lethal mixture began coursing through his veins. Within minutes he was staring blankly at the ceiling of the death chamber. Moments before Rhode was pronounced dead he turned his head, exposing a bandage over the part of his neck he slashed.

It took 14 minutes for the lethal dose to kill him.

Rhode had initially been scheduled to be put to death Sept. 21, but the Georgia Supreme Court postponed the execution after Rhode was rushed to the hospital that day following a suicide attempt.  Rhode was stabilized at a local hospital and placed in a restraining chair to prevent him from removing the sutures from his neck or doing any other harm to himself, state attorneys said.

Defense attorney Brian Kammer countered that Rhode was put in a 'torture chair'  and subjected to cruel and unusual punishment.  'He has been subjected to the surreal and incomprehensible: Heroic measures taken to stabilize his life by the prison staff that would then execute him,' Kammer said in one court filing.  Kammer urged the Georgia Supreme Court Monday to push back the execution again so experts could evaluate whether Rhode was mentally competent to be executed, or understood why he was being punished. He said Rhode lost half his blood Sept. 21 when he cut himself, went into shock and could have suffered brain damage.

'The threat of execution has pushed Mr. Rhode's limited coping skills to the breaking point,' spurring him to slash himself with blades he hid from guards while under a blanket, he said in the filing.

Rhode and Lucas were ransacking the Moss' home in search of valuables in April 1998 when Bryan Moss saw them through a front window, and entered through a back door armed with a baseball bat, prosecutors said. They said Moss and his son and daughter were shot to death. Lucas later shot each of the victims again to make sure they were dead, according to the records.

Rhode appealed the case several times, arguing that his trial attorneys failed to present enough evidence to persuade the jury to spare his life. Kammer argued more recently that his client should be granted clemency because doctors discovered he suffered from organic brain damage and a fetal alcohol disorder."
Deterrence is "specific" and "general or indirect."  Punishment is intended to prevent further crimes by the offender as well as "incapacitate" the offender.  Punishment is also meant to send a message to the community of humankind about community and societal values.

The goal of specific deterrence was met in Mr. Rhode's case through his incapicitation achieved by his incarceration.  The ghastly execution of this loser sends the message of vengence. 

Recently, I was sentenced to prison for 5 months by a very wise federal judge; he expressed the need to send a general or indirect message of deterrence to other professionals who might rationalize tax offenses by looking at a "too lenient" punishment for my offense.  Mistakenly everyone in the courtroom connected to my case believed that Judge P had granted me leave to serve this sentence on house arrest with work release.  I posted about this in the Bad Lawyer Sentencing post. An alarmed email from my lawyer (who also mistakenly believed that I was given home detention in lieu of prison), late yesterday alerted me. 

I will be winding down (since most of my posts are written in advance I don't know what will still publish automatically), but the Bad Lawyer blawg for the time being is going on hiatus, in light of this clarification of my federal court sentence.  Obviously, my friends, and especially my family are in shock this morning. I can't say that I am being treated unjustly or unfairly, the mistake was mine, "wishful listening."  To the extent that I can, I'll focus any further posts on the twists and turns of this process, but effective immediately my regular trolling of local news sites and commentary ends.

Thank you for reading.  Watch this spot!

Al Capone's Miami Trial for Perjury

This is a great story, Al Capone's Miami, Florida perjury trial is being reenacted for historical purposes.  This is reporter Luisa Yanez's Miami Herald account:

"A historic Miami courtroom goes back in time this week to the days when local prosecutors had the nation's most famous gangster -- Al `Scarface' Capone -- on the ropes and on trial for perjury.  Tuesday morning, in the same courtroom where he stood 80 years ago, actors will take part in a mock recreation of Capone's trial at the Dade County Courthouse [.]

Al Capone will take the stand in the now restored Courtroom 6-1 and utter the same words he did during his three-day trial there in July 1930. Starting at 9 a.m., the public is invited to attend the proceedings of the State of Florida vs. Alphonse Capone, Case #621.

So how did Capone break the law in Miami? Let's set the stage. It's April 1930. The pudgy and dapper Capone, fresh from serving 10 months in a Pennsylvania prison for carrying a concealed weapon, returns to his 93 Palm Island home in Miami Beach.  He doesn't know new legal problems await him. Miami's civil society is up in arms. Local newspapers describe Capone as a menace to their way of life. So city officials and the local sheriff adopt the so-called `Chicago Plan' -- geared to hassle the gangster so much he'll move out of his beautiful mansion by the bay.

An order to arrest Capone `on sight' is issued by Dade Public Safety Director S.D. McCreary. Every time he leaves home, Capone could end up in jail. That's just what happens four times during May 1930.  The first arrest comes as Capone is headed to a matinee showing at the old Olympia Theatre, now the Gusman, of The New Adventures of Fu Manchu. The charges against him often range from the nonexistent crime of `investigation' to vagrancy because Capone doesn't have any visible means of support.

`All the methods they employed to arrest Capone were clearly illegal,' said Miami-Dade Circuit Judge Scott J. Silverman, official historian for the 11th Judicial Circuit of Florida, which is sponsoring the Capone mock trial as part of its centennial celebration.

Capone fights back. He accuses Public Safety Director McCreary of falsely imprisoning him. In retaliation, Capone is charged with two counts of perjury for alleging that during his arrests he was secretly confined and denied the use of a telephone.  At the original trial, the Miami Daily News described the scene: `The courtroom was crowded, exits being blocked and many women and children were present. A sister of the defendant, Mafalda, was seated beside him and attracted much attention.'

After days of testimony, the jury didn't get the chance to decide Capone's legal fate. Instead, Judge E. C. Collins announced his ruling from the bench. He acquitted Capone.

`As Judge Collins announced his decision, the crowd that had jammed the court room through the three days of the trial cheered wildly. They halted their demonstration only when the judge instructed bailiffs to arrest any who continued to cheer,' the Associated Press wrote.

Capone smiled broadly and thanked the crowd, the AP said. He didn't know it, but it would be the last time he fought the law and won.

The day after his acquittal, Capone said he was abandoning his Palm Island mansion and moving to a 35-acre plot that he owned in Broward County, where he lived briefly. Pleased, prosecutors dropped all other pending perjury charges. It seemed as though the `Chicago Plan'  had worked. Capone had been run out of town.  But Capone would return. After Chicago federalauthorities sent him to prison for tax evasion in 1931. A sickly Capone was paroled in 1939 and moved back to his Palm Island home.

Capone died there of a heart attack on Jan. 25, 1947. He was 48."

Monday, September 27, 2010

Remember Stephen Brodie? He's Innocent.

I told you about Stephen Brodie last July and advised you as a practical matter to avoid being arrested in Texas.  Brodie (pic, above) was arrested, prosecuted, convicted and incarcerated ro sexually assaulting a young girl he did not sexualy assault.   No physical evidence connected Brodie to the crime (which in actuality was committed against the 5 year old victim by someone else), and the charges against him followed a marathon interrogation; and, he's deaf.  No interpreter was present.  Ah, . . . Texas, what a country!

According to reporter Jennifer Emily at the Dallas Morning News, Judge Lena Levario has issued an order exonerating Brodie who will soon be released.  Brodie promised in July that if this occurred he was "leaving Texas."

Kratz Quits!

Madison.com is reporting that disgraced Calumet County, Wisconsin, DA, Ken Kratz, the so-callled "sexting" prosecutor has agreed to resign.  Here's the link to the breaking story. 

"You'll Screw Up Again"

After the Bad Lawyer's sentencing, and my post about the sentencing, an anonymous commentator offered the observation that the he or she detected that the Bad Lawyer was still all about self. My anonymous commentator opined that based on my age, 56, I would doubtless screw up again.  I sincerely hope not. While not a saint, I hope to grow and mature, even at my late stage--God willing, I'd like to become a better human being. 

But my commentator's remark struck a chord with me.  The local news websites and disciplinary cases are rife with precisely the sort of recidivist bad lawyers, I hope not to become.  Columbus, Georgia lawyer Mark Shelnutt (pic, above) didn't have enough.  After being acquitted in a 2009 federal drug and money laundering prosecution, he got himself on audio and video surveillance dealing prescription drugs.  Good job.

At the link you can read the ABAJournal.com summary with links to the original stories.

Times-Picayune Columnist on Porteous' Impeachment and Pals

New Orleans' Times-Picayune columnist, Jamie Gill, has a disgusted albeit slightly humorous look at the "friends of Judge Thomas Porteous," which is well worth reading.  At the link. 

Contempt of Court

The Oregonian's fabulous court's writer, Aimee Green,delivers again with her report on the Multnomah County Circuit Court Judge who slammed a local defendant on multiple counts of contempt of court and homicidal high-risk driving.  This is Aimee Green's story:

"Up until the moment the judge sentenced him, 25-year-old William Kinney III insisted he was above the law. That's why he was carrying cocaine and driving in 2007 even though his license had been revoked as a teenager after crashing into another car. The impact killed a man and severely injured the man's wife.  That's why Kinney skipped out on court date after court date, forcing authorities to issue a warrant for his arrest in 2008 and 2009.   And that's why he was driving again in May 2010, when police finally found and arrested him. He was held in jail until his trial last week in Multnomah County Circuit Court.

Judge Leslie Roberts showed Kinney that he wasn't above the law when she sentenced him Friday to 5 1/2 years in prison.   The judge also took the highly unusual measure of finding Kinney in contempt of court 12 times, for loudly and repeatedly interrupting and talking over her and the attorneys. The judge sentenced Kinney to an additional four months in prison and ordered him to pay a $3,000 fine.

Kinney dug a deep hole for himself, one that wouldn't have been so deep if he had accepted a pretrial plea offer from the prosecutor: plead guilty in exchange for about a year in prison.   Jurors deliberated for about 20 minutes before finding Kinney guilty of two counts of driving with a revoked license and possessing a substantial quantity of cocaine.

When Kinney got a chance to speak at his sentencing hearing, he reiterated the point he had made many times before. He is a sovereign individual, an 'indigenous' man, a 'remnant of the divine people. I'm an endangered species to this continent,'  he said.  He said that he answers only to God and not to the laws of Oregon

Prosecutor Ryan Lufkin used Kinney's words to urge the judge to send him to prison for 5 1/2 years, as long as possible under Oregon sentencing guidelines, to protect the public from him. Lufkin noted that Kinney's disrespect for the law had resulted in death before.   In 2002, when Kinney was a 17-year-old student at Cleveland High School, he was driving a carload of his friends back from lunch when he crashed into a car just blocks from school. Kinney was speeding and driving without a valid license.

Ann Goetz, 74, was seriously injured and her husband, Fred Goetz, 83, died. Kinney pleaded guilty to the juvenile equivalent of hit-and-run driving, third-degree assault and criminally negligent homicide, and was sentenced to six years of incarceration. His license was revoked for life, although Oregon law allows him to ask to get it back after 10 years.   'He repeatedly keeps driving,' Lufkin said. 'We are going to see Mr. Kinney again. He is not going to obey the law.'

Earlier this year, a judge ordered a psychological review of Kinney, and he was allowed to proceed to trial.

Kinney's attorney, James Britt, asked the judge not to give Kinney the maximum as punishment for Kinney's unpopular beliefs and lack of 'sophistication. Mr. Kinney suffers from an inability ... to understand a complicated system,' Britt said, adding that 2 1/2 years would be a fitting sentence.  

The judge didn't take long to decide that Kinney should spend more than double that in prison. By continuing to drive, Roberts said, 'you're playing Russian roulette with everyone's lives.'

Kinney will be eligible for 20 percent off his prison sentence. That is, if he follows the prison's rules."
If you needed an example of mental illness in the petri dish of ego, this is it.  You could probably add the bacteria of immaturity and race to have a complete picture of what's going on here.   The comedian Chris Rock has instructive video dealing with "how not to get your ass kicked by the police," which would have been helpful to Mr. Kinney, had he viewed it before he opened his mouth in court.

I do not understand disrespect in court--from anyone. 

Have a Blessed Sukkot!

One of my favorite foreign films celebrated the lives of an impoverished and childless Orthodox Jewish couple during the Sukkot Holiday.  This great, great, great movie, Ushpizin (2005), more than any film opened my eyes to Orthodox Jewish holidays especially the marvelous harvest holiday, the Feast of Tabernacles (or Ingathering, or of the Lord,) which began last Wednesday and continues through thisWednesday.  Wikipedia has an instructive article. Here's a link to the Amazon.com link for the movie.

Have a great holiday!  Note to self: gotta get one of those fur hats!

Probate Court Exploitation in Maricopa County, AZ

One of the areas of the law that I find most interesting that I have only a passing familiarity with as the law currently exists is Probate Law.  I've covered a number of cases over the last year where lawyers or others have ransacked estates or exploited the aged or beneficiaries of testamentary estates for their own personal gain.  The dark advice when I was a young Bad Lawyer was: practice Probate Law, your clients can rarely complain--because, they are dead or incompetent.  Probate Law deals with not only decedent estates but it is intimately involved in the administration of guardianships and other forms of financial estates for handicapped or aged persons. 

Technically, the word "probate" means proof and refers to the process where a court looks at whether a will or trust is "true" in the sense of being the Will or Trust instrument of the person who purported to sign (or "execute') the document.  In reality, Probate courts have jurisdiction or power to decide all sorts of matters relating to property utilizing the tools of the old courts of "equity."  During the English common law era, courts of law and courts of Chancery had separate jurisdiction, in the modern era in America, under the rules of civil procedure these jurisdictional distinctions have been "merged" with codified probate laws.  While there are differences from state to state there are also many similarities based on "uniform" codes enacted by most states.

The coverage of issues in the Maricopa County Probate Court by AZCentral.com is worth reading.  As with all things, Maricopa, the problems there mirror the problems in OurCounty, and in your county.  Over the next year I plan to focus on the issue of lawyers, judges and others involved in elder abuse.  It will be a theme of this blawg, with the point being that we all hope to live long, healthy, and prosperous lives. 

The Arizona Republic found that the Maricopa County Probate Court has allowed probate estates to become "cash machines" for those who would abuse the elderly and handicapped.  The Republic's investigative work has identified four issues:  1. Familial and other disputes trigger the problems of system-exploitation with "fees mounting quickly;" 2. Cozy relationships among the lawyers, Judges, and probate vendors cost the vulnerable and beneficiaries excessively; 3. Persons objecting to the rapacious practices of these exploiters end up getting blamed; and 4. Oversight is lax.

Gotta change this system, before we all get old.

Shhhh....Mommy's Sleeping!

Here's a police blotter item from the Lorain (Ohio) Morning Journal to break your heart:

"When police found a 25-year-old Lorain woman passed out in a parking lot Wednesday night, her 3-year-old daughter told them 'Mommy is sleeping,' according to a Lorain police report.  Officers went to an apartment building at 1120 E. Erie Ave. around 6:54 p.m. where they saw the mother, Amber Connor (pic, left), lying flat on her back, 'passed out' in the parking lot. An empty bottle of vodka was next to her and her daughter was standing nearby, according to the report.

Neighbors had called police because the girl was wandering the parking lot by her mother. The girl was 'covered from head to toe in dirt and mulch' and “didn’t appear to have had a bath or been cleaned in some time,” the report stated. Paramedics were able to awaken Connor. Police said Connor was intoxicated to the point she urinated on herself and could not keep her balance. Officers tried to question Connor, but could not understand what she was saying, according to the report. Connor was treated for alcohol poisoning and released from Mercy Regional Medical Center around 10:30 p.m. She was then charged with disorderly conduct by intoxication and endangering children and was taken to Lorain County Jail. Connor’s boyfriend took care of the child for the night. He told police Connor’s alcoholism has been a continuously growing problem and she is scheduled for inpatient rehab beginning Sunday."
Wow, 25-years old and already creating memories for the next generation to revisit in rehab.

Sunday, September 26, 2010

Bad Lawyer Sentencing

The lawyer, that goes by the name Bad Lawyer was sentenced last Thursday for the tax crime of attempted tax evasion. 

The journey to this moment was a difficult one, and involved years of pain and suffering and secrecy.  There was a legacy of childhood fear and dread; seeming escape; academic and professional achievement; personal and professional good works; and lots and lots of bad.  Ultimately, the lawyer that goes by the name Bad Lawyer had crossed many lines, the most egregious were hardly the ethical and legal offenses that resulted in the history documented on Bad Lawyer over the last year; no, the bigger offenses were those that involved dishonesty, anger, rage, and self-seeking at the soul level.  The toxic human, lawyer, businessman, father, and husband that I became meant that I went down a path that you should not take.  It is a natural human tendency to minimize your responsibility for what you did or who you are, but I confess, I knew long ago that I was crossing lines of appropriate and ethical conduct that brought me to where I am today.  I did not know whether my good works and my good intentions would save me; I hoped that they would--but, as I have said many times over the last year--I did what I did.  I brought myself to this place of "disgrace" through my own actions and inaction; and, yes I knew that I was doing it.

I've talked somewhat about the familial sources of dishonesty, and corruption but I intend no excuse.  I also had the exposure to moral and ethical training that I ignored.  I became a thief of time, love, and material things.

I became an alcoholic, who knows, maybe 1982...out of sheer boredom.  I got into some habits, the springs of which were already in place before I crossed over.  By May of 1986 I was divorced from my first wife, sober and actively engaged in Alcoholics Anonymous.  By then I was diagnosed or probably suffering undiagnosed with multiple psychological ailments including manic-depression or what is now called Bi-polar disease.  I report these facts because a federal judge noted these facts on the record last Thursday at my sentencing.  We throw these terms a lot; so that the language or terminology loses its salience, but in a very real sense these diseases have actual symptoms and given routine life stresses, persons laboring under these ailments do and react in ways that can be incredibly dysfunctional.  These diseases don't commit crimes, in my case, I did--but, these diseases operated in my life to make the things I did or failed to do rational to me, if only in hindsight. 

By 2001, I had fallen away from active participation in AA, and I was taking Celexa for depression and rage.  My law practices were scatter shot, joint ventures often with the finest people in and around OurTown, and yet my fundamental negativity no doubt led to the ultimate disasters and failures that plagued me.  Which is not to say that I lacked successes and even a philosophical vision, it's just that my core existentialism and illness meant that whatever achievements would ultimately turn to shit. 

I raged against my religion, Roman Catholicism, the only real belief system I understood as a central system of ethics and belief.  Everywhere I looked for a longtime, I saw only scoundrels and crooks.  My negativity was a black hole--still is, if I let it be.  If all I could see were scoundrels and crooks, perhaps because I was the scoundrel and crook.   Business disaster after business disaster dogged me; when I did make money I was already in such a deep hole so that I sheltered or spent my income thinking that until I have "enough" I'll never be able to negotiate my way out of my pit.  This sort of thinking is absurd, although it did not seem so at the time.  I made and discarded what would have seemed to my parents, a fortune--without reporting the income to the authorities or paying my share of the taxes.

Many solo practitioners are in this situation, someone kindly pointed this out to me when my guilt was so awful that I was on the verge of suicide.  Scratch many a solo professional of any sort and there will be as we say in the law "exposure."  This is not to say:  "everyone does it."  They don't.  This is to say that there is a lot of sickness and professional dysfunction and many of us need help.

As I related at the outset of my "blawg" in the "BSL"'s office (my wife's law firm where I had an "of counsel" role as an on-call litigator)--an associate angry over being called to account for sexually harassing my secretary purloined bank statements and cancelled checks from my office.  It took little or no accounting genius to figure out that I was "laundering" my income through a trust account; and, it took less than what passes for normal intuition to guess that I was not reporting income or paying taxes.  This associate reported my ethical and criminal lapses to the authorities, thereby, saving my life.  This "angel." and I mean no sarcasm by labeling him in this way--saved me and maybe my family.

Despite my increasing bleak view of the world and unrealistic and irrational self-view I did not abandon faith or prayer.  I continued to pray for myself, for my family, for my friends.  Sometimes all I could muster was "Your Will!"  Often I prayed only the "Lord's Prayer," the "Hail Mary," on a good day I could muster the Holy Rosary--often when I cycled many, many miles.  And as Saint Teresa is reported to have said, "more tears are shed over answered prayers."  My prayers have been answered in the descent that is manifest in the creation of the Bad Lawyer "blawg", my disciplinary suspension, a return to sobriety and effective mental health counseling; and finally my felony tax plea and sentencing.

The Plea

I already described the plea, but I don't recall what I said, here on Bad Lawyer; and, I'm not going to go back to look, because it does not matter to me--but, entering the guilty plea was doubtless one of the most mind altering moments of my life.  My brain felt like it was stabbed by a hot knife.  When I stood in court, I felt as stripped of ego and self as any moment in my life.  Academic and career achievements were gone, I was agreeing that I was a felon. 

When you negotiate a plea deal prior to indictment you receive a "information." which is actually a digest of your criminal activities.  It abstracts from your life activities only that portion which is activity which the government believes contributed to your criminal conduct or which actually was criminal conduct.  You are forced to look at the sheer scale of your stupidity and I must say it was revelatory.  Mostly "fair" the criminal information had a few minor things wrong; and one major inaccuracy.  There was an attempt to implicate by inference the BSL.  In fact just the threat of this implication ended any resistance that I had to embracing my sole responsibility.  We have always maintained separate finances, filed taxes, separately, never owned anything jointly or held joint accounts of any sort.  This may seem bizarre to you, but when the BSL came into my life I was already pursuing child molesters and in the early years there was zero support in the legal community for accusing a seemingly upright and prominent cleric or citizen of sexual crimes against children.  So I was already being sued or being threatened with lawsuits.  I knew in those years that I would have difficulty maintaining effective liability insurance or own property of any sorts.  In a deliberate effort to insulate her from the consequences of this insane effort we never joined our financial lives.  I gave her money as I had money and as she needed it--unfortunately, sometimes when I didn't actually have it.  This decision was not criminal, but the criminal information and the earlier "threat" against the BSL implied that she conspired in my tax offense.  She knew nothing.

Part of my insanity, negativity and anger was closely associated with the habit of not telling her my true financial peril, but not being able to tell her.  I was unable to get help from the person closest to me.  And she wanted to help me.

The wonderful, dear man, and great lawyer, Lester, helped me get the factual inaccuracies edited from the information and I signed the plea "deal." 

At the Plea hearing, Judge P was fantastically respectful and decent.  He asked me whether the Information was accurate since it was incumbent upon him to find a basis to accept that the "guilty plea"had a basis in fact. Having represented hundreds if not thousands of persons over the years who I merely wanted to say "yes" or "no," I found myself against my will not able to simply agree.  I could not agree that the "information accurately reflected what happened." The Information was such an abstract of facts, reducing a period of time in my life to only the actions proving that I was a tax cheat. I told the Judge, that I had trouble agreeing that what the Information said portrayed what I did.   My life and career was a whole lot more than a digest of these criminal acts which I admitted to--and, while I did not want to test his or any one's patience, I admitted the offenses but that the Information did not fairly describe my law practice or life.

I can't begin to describe the kindness with which Judge P, accepted this statement.  He offered that I would have an opportunity to supplement the record with a sentencing memorandum and the pre-sentence report and andy letters or testimony I wished to offer.  Judge P accepted my pleas and that hearing was over.  Oh, one other thing, he granted me a "signature" bond.  Since I, personally,  have very little money at this moment in my life--this was good.  I was handed over to the US Marshall's and still at this point I was doing pretty well, but then I turned around and I saw my wife in tears, and I crumbled.   I wept. Whenever I think of her like that, I cry.

At no point before or afterwards was I handcuffed.  I was taken into the sterile, familiar (from my summers in BOP internships) labyrinth of the federal courthouse jail, where I was "booked," urine tested, photographed, where my scars (plenty) and tattoos (none) were catalogued.  The US Marshall employees were curt, professional, and I was out the door in an hour with instructions to report for pre-sentence services and a presentence investigation.


The Pre-Sentence process involves a "probation officer" in my case, "TJ", a real sweetheart of guy who while totally specific about my requirements has been genuinely positive and dead-on accurate about the process.   At one point "TJ" made a surprise home visit.  The house was a mess, but he looked at everything and everywhere--the BSL said, well he knows we aren't throwing money away on housekeepers (a luxury we had for many years.)

My pre-sentence investigation was performed by Kim W.  This consisted of a very detailed interview, urine testing (supervised by her male colleague,) and an exchange of many multiple page forms which took me some time to complete.

While I was waiting in the lobby of Kim W's office with Lester (this lawyer-Saint, did not receive accept one cent from me, and who insisted on being present even though I asked him not to unnecessarily expend his time on this matter)--we watched Closed Circuit television of prison industry videos.  I was admiring the khaki uniforms, and remembering from my Army years how comfortable these clothes are (as I recall , not very.)  I wondered how my mild carpal tunnel and arthritic knees were going to hold up under the rigors of my prison work assignment.  I contemplated the pleasures of losing my personal privacy and dignity and subsisting on a diet of prison offerings.  Bearing in mind that I spent 3 years in the US Army and two summers working in federal correctional facilities--these are not abstract ideas.  I know precisely what is in store for me, and rest assured I wallowed in fear and self-pity.

While this process continued I figured I legitimately looked at 14 months of actual incarceration.  Given the benefit of the calculation of the "guidelines" I was informed that I was looking at a potential of 5 years and guidelines of 18-24 months.  I would owe restitution and probably a $600,000 fine. 

I turned 56 on September 16.

That morning, the family's pristine condition 2007 Toyota Camry was legally parked along the curb in front of the house.  I use the car to commute to and from work.  A drunk driver slammed into the rear of the car without any indication that she touched her brakes prior to impact.  Asleep as usual on the third floor of our house, I thought I heard a gunshot.  Maybe I heard her airbags discharging, maybe the collision.  My wife was on the steps to my mancave at 3:20 AM to inform me of the accident and wish me a "happy birthday."  We sat on the front porch making sardonic observations about life, and happy that the young woman who destroyed the family car had not been physically injured as she demonstrated by wobbling her way through the field sobriety test.  The first thing I pulled from the Camry after prying the door open was my "Big Book."  While tempted, I did not give the Alcoholics Anonymous text to the young drunk, I figure, by the Grace of God I will see her "on paper" in one of the meetings I go to as I go along.  Later the BSL and Yehuda Dan, her Kabbalah teacher expressed the hope that the "car took [my pending] judgment."

Friends, Employers, Family, OLAP, and Alcoholics Anonymous

When my descent began, with a letter from disciplinary counsel indicating that my banking practices had been turned over to them by my wife's associate; followed by a visit from the IRS investigator--I had to to make an initial decision:  while I didn't particularly feel like my life had much value and I thoroughly hated myself, was there anything at all worth living for?  As bad as I felt and as fearful of being revealed, disgraced, and jailed--I knew how to do an inventory and I recognized that I had continued to value and be of value to my family and friends.  If I were to survive I knew that I needed help; and that I needed to be totally honest.  This I did. 

I returned to Alcoholics Anonymous, I began this "blawg" and I told my family and friends every secret.  When the disciplinary suspension happened, which surprised me and everyone who knew anything at all about the subject, but in hindsight the suspension seems absolutely appropriate; I was plunged into depression.  Lester and I knew I had to proactively confront my tax status which my college-pal and long-time CPA, Steve, selflessly helped me complete and prepare to submit to an IRS revenue agent.  This as you may know if you read Bad Lawyer was way too late. 

My pal Ron, an IP pro and entrepreneur offered me a job in the week after my suspension, and through my "brother" Pat, an "in house" case management position was created in a law firm in downtown OurTown.  This job has been my salvation in so many ways.  My boss, Irving, is an old friend, and former colleague--he understands the minutiae of what I'm going through.  Irving's parents are holocaust survivors, Irving had been a federal prosecutor, and he has a genuine understanding of judgement and mercy.  I don't profess to understand the politics of this wonderful, talent-filled, crazy place I work at--but, my hiring caused a minor mutiny among the younger lawyers who understandably objected to the hiring of a controversial, disgraced guy like myself. Irving overruled the objections and I went back to work in February.  I had the first W-2 income of my adult life, and health insurance for my family.  I was a tax payer. 

Early on, I was so humiliated by my situation that I declined all invitations to leave my office for fear of who-knows-what.  Scorn, abuse?   It was pure self-pity and ego; while not all gone, I frequently go out and about onto the Public Square.  I meet and talk to former colleagues, and I answer all questions most of which come in expressions of empathy, support and concern.  I was told that eventually I would have to account for the obvious, how is it that I stood in the Capital of OurState, at the Capitol and lifted my right hand and swore to uphold the laws and the constitution of OurState and US government.  I'm ok.

My employer permits my active participation in Alcoholics Anonymous programming and OurState Lawyer's Assistance Programming.  In the later program, I get mental health counseling, advocacy, and random drug testing.   In the latter regard, I log onto a website every morning and learn whether I need to go to a medical lab and pee in a bottle--I don't drink and I haven't used an illegal substance since sometime in the early 1980s, but it is a minimal price to pay for all that I receive in exchange for participation.

My friends knew what I was up against and soon all my AA pals would know.  I wrote letters to all my brothers and sisters and my Uncle apprising them of my situation.  Then at the behest of my closest friends I began the daily grind of working a regular job, attending AA meetings writing this "blawg" and exercise.  Everyday I asked myself what I could do to improve my conscious contact with God and do his will for me.  I am convinced that the answer, in part, was to humbly and honestly ask others to help me in with my peril.  Mostly this came in the nature of advice, and letters of support.  Sometimes it was meals or coffee.  People I had not spoken to in years, at least intimately, either sought me out or I sought out.  I gave them the information about this "blawg" or a letter or email explaining my circumstance in the firmest and most blunt terms about my responsibility for my ethical and tax offense.  When friends made excuses for me, I shot down their reasoning and rationale. 

Not surprisingly as I went along, both before and after the plea a number of acquaintances have sought out my personal experience; and, as a consequence, I'm praying for others who are experiencing their own "Come to God" moments and by his Grace, avoiding my consequences.  As I've said on this "blawg" many times, do not do what I did, but if you are in my situation, get active--address the issue head on.  You may yet avoid my consequences, even if you don't have the money, now, to deal with the obligations.  Don't wait, not even one day. 

My sisters and many friends offered to write letters.  A close friend who is a local "small law" judge wrote on my behalf.  My AA sponsor and former AA running pals wrote, my former law partner, my boss, Irving, co-workers, a well-known political activist, my closest friends, new friends, my neighbor, former clients, former colleagues, my cyber pal Gayle, some of my morning coffee buddies, nearly two-dozen letters, some detailed accounts of various moments in my life and career, all incisive insights into my personality traits and, yes, shortcomings of character.  I specifically, asked friends to not write them for me, and in fact not send me a copy of the letters unless they felt they absolutely had to; because I didn't want them to feel inhibited in being critical of me.  This was essential, I wanted Judge P in considering whether to jail me or not, to think about every aspect of my character.  I also viewed every letter, short or long, detailed or general, from my neighbor to the drunks at AA, to a highly-regarded professional--all these were invaluable not just as pleas for me, but for ME to make a connection with God and my family and friends, because the process itself is miraculous, not just the outcome. 

The BSL has been a long time life partner, and admittedly it has rarely been easy for her or vice versa.  As I said, there is very little we have held in common apart from two children that we absolutely adore and want nothing less than the best outcomes, spiritually, morally, and ethically.  She has been a great mother, and despite all my adversity and mental illness, I've tried to be a good and certainly loving and supportive Dad.  When my self-inflicted disasters began to hit, she became my champion.  She dragged me off to a Kabbalah lecture where I met and hear Yehuda Berg speak about child slavery and being "fully conscious."  I blogged about this at the time.  Since that time I have been looking intently at the Torah, morality, and ethics with a new outlook.  I attended Lag Ba-Omer, Shavuot, and Rosh Hashanah services; I observed the Yom Kippur fast.  At the BSL's insistence I received federal court permission to travel to Washington, D. C. where I recorded my family name "in he Book of Life," and have the Shofar blown over the "judgments" against me.  My friend Yehuda Dan told me that this would be the best year of my life, . . . if I was absolutely certain of that fact.

So everyday, I engaged in the paradoxical effort to "let go and let God," while asking myself each day where do I need to have the courage to change the things that I can change and should change.  This is not easy when you are a Black Hole of negativity--which often, I am. 

When this process began, it seemed interminable, but sentencing set for noon Thursday proceeded as scheduled.  As time drew closer, I felt little if any resolve or resolution.  I was anxious that I would lose the power of speech (I would be expected to speak and acknowledge my responsibility and remorse), and yet I could not stop weeping as I though about friend sand family.  Then I remember riding my bicycle through the park and suddenly coming upon a large truck with a cartoon Moses arms outstretched showing me the way.  I received many spiritual objects including the guardian angel that belonged to her Mother, a long time recovering alcoholic that I knew from years previous.  The "Red String" that was tied on by Cindy months before was still on my left wrist, unbroken, while the BSL had gone through three, remarkable words were being said to me, and remarkable coincidences were occurring.

The Sentencing

The BSL and I were waiting outside the federal courthouse on Thursday when Paul from OLAP appeared to be there to speak as an advocate, this on short notice when my long time psychologist inexplicably ignored requests to supply information.  The BSL and Paul went into the courthouse, when Lester came into view.  By then I had lost all power of speech and I was wondering how I could speak on my own behalf, this after a career of shooting my mouth off on every occasion, whether it was appropriate or not.  Then it occurred to me, what if you were there when Jesus was crucified, would you be able to speak up for him?  Say something for him?  This idea, did not help except as it led to the next idea.  Speaking on behalf of Jesus was way too grandiose, way too remote; but, but then I imagined that I'd be called upon to speak for my son, Will--could I tuck away my grief.  It was in that thought that I regained something of my composure.

Let's face it, with all the good things that were said about me---and, may good things were said about me in letters to Judge P, partly because, I had done a number of good things in my career.  I had helped a few people in my career--certainly, not unselfishly; nonetheless the sheer scale of what I did made prison probable. As the sentencing began, the Judge had just sent a man to prison for 2 years.  I took my seat at the table next to Lester.  The Judge began with calculating the "guidelines" finding that based on the pre-sentence investigation I earned reductions, I believe he moved me downwards towards 13-15 months.  I had benefited from a glittering pre-sentence report from Kim W who was in the courtroom.  Lester rose to speak at Judge P's invitation.

Lester gave what I would call the "full-Torah" argument actually addressing in the context of ancient teachings where I was in my life and career and what I had "deposited" through good acts in my life.  He cited the descriptions of my life and career from my sisters, my employer, my accountant, my AA sponsors and my friends who Lester called "the salt of the earth."  Then I was asked to speak. 

I have spoken more eloquently at coffee, half asleep, than I did on this day.  I certainly spoke more powerfully in court in situations that meant very little to me.  But on this day, I spoke directly from my heart.  I said that standing out in the lobby in the bright sunshine I could see across the city skyline to the gray federal building where on another occasion I stood uncertain about my future ready to take an oath to uphold the laws and the constitution and that I am reminded that I did that again in 1982 and in the chaos and stupidity that I fomented I repeatedly violated that oath and promise and that I was deeply ashamed and disgraced by my acts alone.  I told him that this "consequence" that I choose to believe is a "revealed blessing" brought about through prayer, bringing to an end awful secrets that had caused me terrible pain and suffering.  I said I was ready for whatever judgement and sentence that Judge P was prepared to impose, then I sat down.

The AUSA is a remarkable man, who I may write about at another point, but Mr. S. spoke very briefly and then only to remind the Judge that the view of the government and the IRS was that his sentence had to send a message to other professionals about the scale of my offenses and unethical machinations I was involved in in hiding my tax crime

When the Judge spoke he said that he had rarely received the sort and variety of materials provided to him from my employer, my family and my friends and others like OLAP.  Judge P spoke approvingly of my accomplishments but then he indicated that a sentence of "probation" sent the wrong message.  Judge P said his job in my case really turned on only one parameter, deterrence.  "I have no doubt, you will never commit a further crime," he said.  "But I have an obligation to craft a sentence that will deter, other professionals who might mistakenly believe that "I can do what [you] did' and get probation."  So I am going to sentence you to . . ."

The entire time I was still hanging on.  The entire time I have not let go, and as I was absolutely certain I was going to go to prison, as my wife in the back of the courtroom was sobbing, a miracle occurred.  I let go.  I was perfectly at peace, ready to go where God sent me. 

" . . . 5 months incarceration to be served on home confinement, electronic monitoring, work release. continued [Alcoholics Anonymous meetings], 2 years of probation, and restitution to be negotiated with the IRS.]"   Judge P added that he believed that I suffered from two diseases (Bi-Polar illness and alcoholism) that I didn't ask for and didn't deserve;  that did not justify my offenses but which he believed contributed to the commission and perpetuation of the crime.

The Future

Who knows what the future holds.  I am by the Grace of God, not going to prison.  I self-report for home monitoring by the first of December, and I'll have my ankle bracelet off by the beginning of May.  Provided I follow the rules.  I intend to follow the rules. 

Is there a way back to my license?  I don't know.  I would not have given you a nickle against a dollar bet prior to last Thursday.   I don't know how I can make restitution, I don't know what further disciplinary action the OurState authorities will impose.

I live one day at a time. God is great!  We live in an Age of miracles!  I will be here at home in January when my daughter gives birth to the Baby boy that she is carrying. 


I am profoundly grateful to Lester, Pat, the BSL, Steve, Irving, Yehuda Dan, Yehuda Berg, Gail, Marcia, Bill, Nancy, K, Fenton, Tim, Pat C., Paul and Cindy, John G, Carmen, Ron, Chris, all of my family, friends, former colleagues--yes, especially the guys who handed my checkbook over to the authorities, Paul, OLAP, AA, Gayle, the Court, my neighbors, and each and everyone's respective families.  You will all remain in my prayers and prayers of my family.

I am grateful to you.   Light.

Drunk Cop, Mows Down Pastor's Daughter, Will Be Home By the Holidays

Stinkin' like a whiskey bottle, NYPD cop Andrew Kelly mowed down a Brooklyn pastor's daughter but his buddies in blue delayed the blood alcohol testing.  Now former Officer Kelly will be home by Christmas following his 90 day sentence for vehicular manslaughter.  He faced 7 years.  This story is remarkable for the charity shown not only by Kelly's NYPD colleagues who are serving suspensions for their role in the coverup of Kelly's DWI; but, also for the forgiveness shown by Pastor Varius Vainord who quietly but publically forgave the killer cop in Court, when Kelly entered his guilty plea.  At the link connect to the NY Daily News accounts of the sentencing and the other stories. 

Friday, September 24, 2010

Bad Lawyer Update

The Bad Lawyer is off this weekend, working on  Personal Thank You notes and an Update, following his sentencing in US District Court on this last Thursday.   Regular posting will resume Monday.

Go ride a bike!


The Baltimore Sun is reporting that the Maryland Supremes are addressing one of the lesser known Jewish holidays; that is, to non-Jews--but, one of the most important: Shavuot, or the Festival of Weeks.  Shavuot is the day which by tradition celebrates the anniversary of Moses receiving the Torah on Mount Sinai.   The Torah is actually the "Teachings" although most of us are guilty of claiming that it is the "law." In fact as I've noted previously, Torah and specifically, Mishpatim which is Hebrew for "law." 

The Sun story sets out one more fascinating interstice between religious observance and justice:

"In one of the cases kicking off its fall term, Maryland's highest court is being asked whether a judge violated an Orthodox Jew's right to religious freedom by holding a medical malpractice trial without him and his lawyer during a major Jewish holiday. Lawyers for Alexander Neustadter of Silver Spring argued before the Maryland Court of Appeals last week that Montgomery County Circuit Court judges got so wrapped up in the 'efficiency of the docket' that rather than delay the trial or suspend it for two days of Shavuot, the court trampled Neustadter's constitutional rights.

The upshot, Neustadter's attorney, Thomas J. Macke, told the appellate judges, was that key testimony by witnesses for Holy Cross Hospital went unchallenged in the June 2008 trial. Neither Neustadter, nor his lawyer, whom he ordered not to work on his behalf on the holiday, was there to object to the witnesses' characterizations of points that were crucial to Neustadter's claims about his father's treatment and death in 2003.

'It was prejudicial like we've never seen,' Macke argued.

Judge Sally D. Adkins asked if Neustadter's lawyer could have appeared over his client's objections if the judge had insisted.

Y'ou can't cut this in half,' Macke said.

Two judges — Joseph F. Murphy Jr. and Mary Ellen Barbera — wondered aloud how courts that handle extreme circumstances and emergencies could not craft a solution with a month's notice, though Murphy said he was less concerned with the court's schedule than with the availability of expert witnesses, whose court appearances are planned in their schedules.  What the judges will consider in weighing the competing interests of religious observance and orderly operation of government is unclear.

Judge Lynne A. Battaglia said that 'the court would never have any discretion' if forced to agree to 11th-hour requests for schedule changes and couldn't scrutinize them.  According to the arguments, Neustadter had testified during the trial that he wanted a breathing tube reinserted in the airway of his desperately ill 91-year-old father, Israel Neustadter, a Holocaust survivor who relished each day of his life.

The doctors and hospital contended that Neustadter, with physicians, decided against re-intubating the elderly patient. An expert witness for the hospital told jurors that not re-intubating Israel Neustadter met the standard of care because the patient would not benefit.  The other defendants settled before trial, and, with more than two dozen witnesses no longer being called, trial time was freed up, Neustadter's lawyers contended.

The hospital won at trial. The Court of Special Appeals upheld the verdict. Neustadter asked the Court of Appeals to hear the case.  Michelle R. Mitchell, arguing for the hospital, countered that Neustadter and his lawyer realized soon after the trial date was chosen, in January 2008, that June 9 and 10 would conflict with Neustadter's strict religious observance.

They failed to alert Judge Louise Scrivener quickly that not only could Neustadter not come to court, but he could not allow his lawyer to go.  Neustadter's attorney immediately told the defendants' lawyers. But the conflict was not broached with Scrivener until about a month before trial, Mitchell said. Efforts to switch the order of witnesses failed.  Though courts must reasonably accommodate religious worship, Scrivener said, this was too late to alter the tight court schedule. She told the lawyers that her hands were tied by the crowded docket, shortage of judges and related concerns.

'The trial court's management of its docket is a compelling state interest,' Mitchell said.

Timely notice is important for judges filling calendars months away, she said.  Macke argued that the trial could have been pushed back. Scrivener had postponed it from the first trial date at the defendants' request with less than a month's notice.

In a brief supporting Neustadter on behalf of a dozen law professors, University of Baltimore law professor Kenneth Lasson argued that Maryland's high court should consider the state's history of religious tolerance, which dates to the colony's founding decades in the 1600s. 'If the court decides in favor of Neustadter, I wouldn't be surprised if it quotes some of the historical facts to bolster the case,'  he said."
Actually, I find the lack of scheduling flexibility by this Judge, dubious regardless of the merits.