Thursday, October 28, 2010

False Allegations of Crimes Made By Arpaio and Thomas--US Attorney Confrims

OK, you can read the Bad Lawyer archive of Maricopa County, Arizona stories to get the context if you haven't been following this carnival. 

Sheriff Joe Arpaio (America's Toughest Sheriff) and his boy Andy, (former Maricopa County Attorney, Andrew Thomas') engaged in a Stalinistic terror campaign to indict and prosecute all other elected Maricopa County officials not-named-Arpaio-or-Thomas--but, as we suspected all of the charges, indictments, and arrests were false.   Reporters Yvonne Wingett and JJ Hensley at AZCentral relate and supplying links to the US Attorney's summary of his investigation of cases Arapaio and Thomas forwarded to the feds for followup, after numerous dismissals by Arizona courts.  The conclusion by the feds, no evidence of any crimes by any of the Maricopa officials persecuted by Arpaio and Thomas.  

Here's the article:

"There is no evidence of federal crimes by county officials in material forwarded to federal prosecutors by Maricopa County Sheriff Joe Arpaio and former County Attorney Andrew Thomas, U.S. Attorney for Arizona Dennis Burke says.  Last March, Arpaio and Thomas forwarded nine cases of suspected county corruption to the U.S. Department of Justice's Public Integrity Section for review. Though an attorney working on behalf of Arpaio and Thomas said federal officials promised to review the material, a Justice Department section chief later chastised him for giving the impression that federal agents would likely take on the investigations.

The cases instead were sent to the U.S. Attorney's Office in Phoenix for review.

'Our thorough review has shown that there is a total lack of evidence of the commission of any federal crimes by the individuals listed in the materials,' Burke wrote in a letter to Interim County Attorney Rick Romley. 'Furthermore, in several instances, the evidence was so lacking as to make the theory of liability nearly incomprehensible.'

However, Burke recommended the matters be reviewed for any potential violations of state statutes. Romley, who cannot review the matters because of conflicts of interest, has asked the Navajo County Attorney's Office to perform that task.

Robert Driscoll, an Arpaio attorney, said Arpaio and Thomas filed a wide-ranging racketeering suit after failed attempts to get an outside prosecutor to review their allegations against other county officials. When the racketeering suit was withdrawn, Driscoll said Arpaio and Thomas wanted a prosecutor to review the cases.

'I don't think it would be fair to say that a declination (to prosecute) means there's nothing there,' Driscoll said. 'There's been a review and people are better off than they were at least knowing it's been reviewed.'

The material included Arpaio and Thomas' investigations into the county's project to build a new court tower, and use of public funds to search for listening devices in county offices. Those cases were presented to a grand jury, which determined there was no probable cause that a crime was committed."
So now you have an overwhelming finding of pure political malevolence by these two clowns, Arpaio and Thomas.  Andrew Thomas was soundly defeated in a bid to be the Republican nominee for the position of Arizona attorney general and a bar investigation is underway.

Arpaio's profligate spending on guns and lawyers, including Big Law--ended when the County Supervisors he and Thomas repeatedly and unsuccessfully indicted recently regained control of the county spending authority.  And Arpaio's Sheriff's department is itself on the verge of collapse in the face of corruption investigations and denunciations from former trusted associates. 

You gotta give it up for Sheriff Joe, he is the darling of the Tea Party.  He's on the road raising money for all the tin foil hat types, that is until he ends up in U.S. District Court. 

But Arpaio's victims: county officials who were arrested, smeared and indicted; and, the taxpayers of Maricpa County, they just keep paying.

Stomach Turning, Karma-Ready Crime--Sentencing

A woman from Baltimore County, Maryland faked stomach cancer to defraud donations from persons, mostly friends, moved by her plight.  In fact she utilized social media including Facebook to further her scheme.  The Maryland Daily Record has this account of her sentencing:

"A Baltimore County woman who stole thousands of dollars from friends by pretending she had terminal stomach cancer was sentenced Thursday to 15 years in prison and ordered to pay restitution totaling more than $14,000.  'In my opinion, you are a professional thief,'  said sentencing Judge John Grason Turnbull II, who also said he would recommend Dina Leone for treatment at the Patuxent Institution.

Leone pleaded guilty in June to one count of felony theft in Baltimore County Circuit Court.  Leone used Facebook to get in touch with old high school friends, telling them she had no insurance and could not afford cancer treatments. Friends and acquaintances rallied to her cause and raised funds. The family of professional skateboarder Bucky Lasek, a high school classmate of Leone’s, arranged an all-expenses paid trip to Disneyland last year for Leone and her family.

Inconsistencies ultimately unraveled Leone’s scheme. Police noticed her photos sometimes showed a 'catheter' in the right side of her chest, sometimes in the left. Leone shaved her head prior to buying wigs, but friends noticed she lacked bald spots that would indicate her hair had fallen out. Area hospitals also said they had no record of Leone being treated for cancer."
I know you can get less time for killing someone in and around Baltimore. 

I'm trying to figure out if Judge Turnbull is a wee bit out of control?  Grandstanding? Would the outraged Judge sentence the "blind" beggar to 15-years?  Doubt it. 

As I suggested in the title to this post, this woman's crime will bring the kind of Karma no one wants!

Colorado Hit-Skip Attorney Suspended for 3-Years

In April I told you about Colorado attorney Jeffrey S. Detlefs (pic) who was convicted of vehicular assault, and hit-skip after striking a cyclist who by coincidence was a local public defender.

Detlefs was driving while drinking and his child was in his SUV.  In my April account I reported that he received a 9-year prison sentence.  This morning, the Legal Profession blawg reports that Detlefs received a 3-year license suspension, um Law license.   Here's link to the opinion syllabus and a link to the story at the Legal Profession blawg.

Wednesday, October 27, 2010

First Amendment Provides No Academic Freedom for Public School Teachers--Sixth Circuit

Courthouse News Service has this account of a recent Sixth Circuit U.S. Court of Appeals decision holding that the firing of a Cincinnati-area teacher for assigning controversial book titles: SiddharthaFahrenheit 451, Heather Has Two Mommies, etc.,  in her class, did not contravene the doctrine of "Academic Freedom" under the First Amendment to the U.S. Constitution.  Here's the story:

"An English teacher who lost her job at an Ohio public high school after assigning books that the school board found offensive, including Hermann Hesse's Siddhartha, does not have a First Amendment claim, the 6th Circuit ruled.   The appellate panel in Cincinnati upheld a lower court's ruling for the Tipp City Exempted Village School District, writing that the right to free speech 'does not extend to the in-class speech of teachers in primary and secondary schools made 'pursuant to' their official duties.'

Teacher Shelley Evans-Marshall can speak and write publicly about academic issues outside the classroom, but her curricular choices come under the school board's oversight, Judge Jeffrey Sutton wrote for the three-judge panel.

After receiving positive performance reviews in her first year at Tippecanoe High School, Evans-Marshall came under scrutiny in 2001 when she assigned Ray Bradbury's Fahrenheit 451 and Hesse's Siddhartha to her ninth-grade class.  She asked her class to explore the government censorship theme of  Fahrenheit 451  by doing presentations on books that are frequently censored by schools and libraries.

A parent complained that some students had opted to present Heather Has Two Mommies by Leslea Newman, and the school principal, co-defendant Charles Wray, asked Evans-Marshall to have the students choose a different book.  Parents also objected to the explicit language and sexual themes of  Siddhartha.  About 100 parents attended the October school board meeting to question Evans-Marshall's teaching methods and materials, and they submitted a 500-signature petition calling for 'decency and excellence' in the classroom.

School officials grew more concerned they read writing samples from students in Evans-Marshall's creative writing class, including a first-hand account of a rape and a story about a young boy who murdered a priest and desecrated a church.  In the spring, Wray gave Evans-Marshall a critical performance evaluation, and the school board voted against renewing Evans-Marshall's contract. Evans-Marshall sued the school board, Wray and superintendent John Zigler, claiming they had retaliated against her 'curricular and pedagogical choices' and tried to restrict her First Amendment right 'to select books and methods of instruction for use in the classroom without interference from public officials.'

A federal judge ruled against Evans-Marshall, saying she failed to prove that her teaching methods led to her dismissal.

The federal appeals court affirmed, but on different grounds.  The judges said Evans-Marshall 'has shown that her teaching choices caused the school board to fire her,' but she failed to clear the hurdle in the Supreme Court's 2006 ruling in Garcetti v. Ceballos, which states that when government employees speak 'pursuant to their official duties,' they are 'not speaking as citizens for First Amendment purposes.'

"In the light cast by Garcetti, it is clear that the First Amendment does not generally 'insulate' Evans-Marshall 'from employer discipline,' even discipline prompted by her curricular and pedagogical choices and even if it otherwise appears (at least on summary judgment) that the school administrators treated her shabbily,' Sutton wrote, quoting Garcetti.
'And if it is the school board that hires that speech, it can surely 'regulate the content of what is or is not expressed,' what is expressed in other words on its behalf,' the ruling states. 'Only the school board has ultimate responsibility for what goes on in the classroom, legitimately giving it a say over what teachers may (or may not) teach in the classroom.'
The appellate court said Evans-Marshall was representing the school as a teacher, and the board is in charge of the school's curriculum under Ohio state law.

'This is an accountability measure, pure and simple, one that ensures the citizens of a community have a say over a matter of considerable importance to many of them - their children's education - by giving them control over membership on the board,' Sutton wrote.

'Every child in Ohio must attend school, providing public school teachers with a captive audience for their in-class speech, and providing a compelling reason for putting curricular choices in the hands of 'someone [they] can vote out of office,' or who is otherwise democratically accountable.'

If Evans-Marshall's speech is protected in the classroom, the judges wrote, the same principle would support the principal's objections to Evans-Marshall's teaching methods.   'Permitting federal courts to distinguish classroom vulgarities from lyrics or to pick sides on how to teach Siddhartha not only is a recipe for disenfranchising the 9,000 or so members of the Tipp City community but also tests judicial competence,' Sutton wrote.

The 6th Circuit also ruled that the 'academic freedom' concept does not protect curricular speech at the high-school level, because the notion was conceived and applied in universities to protect teachers who are also researchers or scholars."
Link to opinion.

Boy things have changed in schools since I was a kid.  Instead of the Tipp City parents going off about the literary choices of the teacher they might be better served looking at what their kids are looking at and posting on Facebook and their cell phones.   Censorship in River City is alive and well. 

The problem for this poor academic will be trying to find future employment--all because she believed in a constitutional ideal.  Sad.

Another Whack-Job Government Lawyer

Over the last several days I've brought you a couple of stories about government-employed lawyers engaged in really mind-bending bullshit conduct.  This guy may take the cake, a New York lawyer engage in racial harassment, then again the lawyer stealing from the blind vendor....this is via the ABAJournal with a link to an article by Brenda Lyons and Paul Nelson at the Albany Times-Union:

"A state Department of Civil Service lawyer faces hate crime charges for allegedly threatening to kill an African-American woman and to kidnap a 'little black boy and tie him up' during two separate phone calls over the summer to people of color in his neighborhood, according to court papers.

James J. Hennessey Jr. (pic) attempted to hide the origins of the calls, which occurred on July 19 and July 21, by using a website called, the criminal complaint states.   Hennessey, 58, was arraigned Friday on two counts of second-degree felony aggravated harassment by Albany City Court Judge William Carter who asked him during the hearing if he could afford an attorney.

'I'm not sure but I think so,' said Hennessey, who was shackled and did not have an attorney representing him. The judge entered a not guilty plea on his behalf and set bail at $15,000.

He told the judge that he worked as a lawyer for the Department of Civil Service and later asked about the payment options for bail. Hennessey, who earns $104,080 a year, had posted bail by 3:30 p.m. Friday, about 90 minutes after the arraignment ended. Outside court, he declined comment when approached by a reporter. It was unclear late Friday if he had retained a lawyer.

Albany police said Hennessey told them he once worked for the New York Police Department. It's unclear if Hennessey had been an officer with the NYPD.  The criminal complaint alleges that at 10:30 p.m. on July 19, a woman on South Pine Street received a call in which Hennessey used racial slurs and expletives and told the woman that he was going to kill her. The court papers state that the woman was targeted because she is 'of African-American origin.'

Two days later at 1:30 p.m., a man on Winnie Street received a call in which the caller told him, 'we are going to kidnap the little black boy who plays outside and tie him up,' according to the criminal complaint. The papers state the man was 'selected because he is of Hispanic origin and has a dark-skinned nephew.'

Authorities were able to trace the calls to Hennessey through documents from Verizon Wireless and a Time Warner Cable account identifying Hennessey as the subscriber.  Albany police were assisted in the probe by the FBI and Albany County district attorney's office.  Police records show Hennessey filed at least two complaints with Albany police several years ago alleging someone had done damage to his home and vehicle.

Hennessey has been employed as an associate attorney with the Department of Civil Service since April 1993, according to David Ernst, an agency spokesman. Ernst on Friday said there was no change in Hennessey's status with the agency."
On rare occasions I've come across truly irredeemably racist individuals.   A surprising number have been cops.  While I have represented many cops as well as many municipalities vis-a-vis their safety forces, and I count many cops among my current friends--there is something that I trace to education, bent of mind, and daily exposure to peril that animates this emotional defect among the police.

What an Asshole!

The Legal Profession blawg has a link to the disciplinary opinion supporting a public reprimand for Commonwealth of Virgina attorney Hilton Gordon Oliver a Virginia Beach attorney who handled a custody matter.  His client the mother who would lose custody was described by a witness as a "prostitute" based on his personal knowledge as a former paying customer.   After the custody proceeding, the lawyer sent a letter, including a transcript of testimony by the witness,"Mr. C," to the non-party witness' wife--questioning why Mr. C. would "falsely" testify to having patronized a prostitute. 

What an asshole.

Years ago, a friend of mine was very hurt by a relationship where he strongly suspected that his wife was involved with a married neighbor.  He intercepted damning emails.  We talked over coffee about what he should do with the emails, and, of course, his first inclination was to share the evidence with the neighbor's wife, "to alert her."  Upon reflection he realized that such an act was nothing more than spreading his misery to an innocent bystander--that it was his anger, outrage, pain--his ego, motivating the desire to share the pain.

In this case we have a lawyer acting in pure spite.  Not knowing the underlying facts of the disciplinary case the offense seems to me to be one justifying a harsher sanction, perhaps there was substantial mitigation?  We do see alot of this sort of gamesmanship in the divorce and family bar.  Nasty lot.

By the way, I included a useful diagram. 

Tuesday, October 26, 2010

Bad Ideas: Asking Questions You Don't Know the Answer To; Self-Representation

In the Bad Lawyer's continuing quest to warn you against Bad Ideas, we have this story from Tracey Kaplan at the San Jose Mercury News:

"A seemingly minor witness who took the stand in a rare Santa Clara County death penalty trial dropped a bombshell Monday, linking the accused killer for the first time to the East San Jose carport where the young victim's bullet-scarred body was dumped.  Ines Sailor's (pic) partially clad, shoeless body was found on New Year's Day in 1981 in the carport of an East San Jose apartment complex, the day after the 23-year-old woman disappeared from a party in San Francisco.   Suspected killer Melvin Forte, now 60, lived in San Francisco at the time, though he worked at Langendorf Bakery in San Jose a decade earlier and 'knew the streets,' prosecutor Brian Welch contended.

In his opening statement Monday morning, Forte, who is acting as his own lawyer, took pains to draw the jury's attention to the vague link between him and the city of San Jose, saying, 'Working and homicide is two different things.'

But Monday afternoon that argument lost steam, as Forte began cross-examining San Jose housekeeper and artist Barbara Kelch. She was the assistant manager of the 142-unit apartment complex on Poco Way who discovered Sailor's body.

Forte is currently serving life in prison on a murder conviction out of San Francisco. He became a suspect in Sailor's death after a positive DNA hit in 2005. If he is convicted, he could face the death penalty, in a rare capital case brought by the district attorney's office.

Forte barely finished asking  Kelch to recall the configuration of the apartment complex -- which she said included about six buildings spread over two square blocks -- when his question seemed to trigger her memory.

'I remember seeing you,' Kelch blurted, staring at his face.

'When did you see me?' Forte asked in a skeptical tone. 

'Frequently,' Kelch said, adding 'in the afternoon, sometimes midday, sometimes early evening.'

Kelch acknowledged she had not identified him before during any police interviews or the preliminary hearing. No tenant records are available because the former apartment complex has been redeveloped.  'I didn't recall you until I saw you today,' Kelch said. 'I'm an artist '... details are important to me.'

Adding insult to injury, Kelch didn't just claim she knew Forte.   She also said she asked him once if he lived there.   'You said, 'yes,' it was your apartment,' Kelch said.

She also testified that she suspected him of  'suspicious activity' because he was much older than the people she saw him with and because his apartment had a steady stream of visitors.  'I did not get a good feeling, she said, as the jury of eight men and four women listened closely."
Never, never repesent yourself. 

Never ask a question you don't know the answer to--so many times, I have seen this occur with precisely the same result Kelch had in this instance.  I did it.  I've seen it done repeatedly by persons veteran enough to know better.  Stupid, stupid, stupid.

What I like about this new account his how the defendant dug deeper and deeper into this hole.  The granular detail supplied by this witness probably will help put Kelch on California's death row.

"Man, Am I Going To Whack You, After the Jury Finds You Guilty!"

Reporter JC Reindl at the Toledo Blade says that the Ohio Supreme disciplinary panel dismissed a judicial complaint against a Toledo-area municipal judge who in essence warned a criminal defendant that a sanction to be imposed would be less than lenient when the certainty of a jury verdict was rendered.  Here's the story:

"A pending grievance against Toledo Municipal Court Judge Francis X. Gorman was dismissed Monday. The grievance, made public this summer by the Ohio State Bar Association, alleged that Judge Gorman made improper statements to a criminal defendant during a July, 2009, court appearance.

It claimed that the judge violated his obligation to be impartial by making comments about the defendant's lack of cooperation and failures to appear, particularly the statement that the defendant 'take this into consideration when the jury finds you guilty.'

Monday, the three-member panel of the Supreme Court of Ohio's Board of Commissioners on Grievances and Discipline dismissed the grievance, which it found lacking "clear and convincing evidence," said John Marshall, secretary to the board.

'The judge admitted that he said something he didn't intend to say and that he shouldn't have,' said Cincinnati-based attorney George Jonson, who represented Judge Gorman. 'The judge took responsibility for what happened in court that day, and the panel found that it was not something that rose to the level of a violation.' In 'stipulations of fact' accompanying the decision, officials stated that the defendant's case history and behavior would have led Judge Gorman to believe that the defendant was 'playing the FCO [federal court order] game,' and therefore felt free to rack up nonviolent offenses.  Because of a federal court order aimed at reducing crowding in the Lucas County jail, some repeat nonviolent offenders can avoid jail indefinitely if they're willing to be continually picked up, booked, and released within 10 to 12 days, according to court documents.

The grievance against Judge Gorman was dismissed after a hearing before the panel. Asked to comment on the outcome, the judge said 'I am happy that it's concluded and referred further comment to Mr. Jonson."
It is the role of a Judge to maintain "judicial temperament" indicative of the ideal that all criminally accused are innocent until proven guilty.  Judge Gorman clearly deviated from this ideal by his own admission.  Tough job, being a good judge--it's actually pretty amazing how many good judges there are considering all of the provocations they handle.

Alito at the Red Mass

Remember when Bad Lawyer described the multi-faceted gaming of the lawyers, judges, and law givers, here, in OurState and OurTown by the Catholic Church? 

One of the really disturbing examples of this is the Red Mass, an annual celebration of all things Catholic by zealot Catholic lawyers.  Note:  I am a zealot Catholic lawyer (by training, baptism and faith.) These masses were particularly galling in the years in which the liars at the various Dioceses nationally were denying the crimes of child rape and abuse; who (Bishop Quinn) were threatening malicious prosecution law suits against victims and their lawyers, fighting efforts to expand the statute of limitations, and who were actively covering up the criminal activity (Cardinal Law.)  These jolly little luncheons rubbed the noses of survivors of child rape and molestation in the power of the Church to override the law, to crush justice.  These masses featured the big-Kumbaya with the Justices of OurState Supreme Court, the local bench, the legislators, and the defense bar.  Lovely brass plates (the St. Thomas More awards) were given to honor these great Catholic lawyers who were screwing the victims of the Church out of any semblance of justice.  Thing of the past?


Yes, that's Associate Justice Samuel Alito re-administering the oath to the Catholic lawyers of western Michigan.  Here's the link to the story at

Feeling better?  More optimistic?  Hold on to that feeling.

As Bishop Quinn nonchalantly told the Midwest Canon Law Society in his humorous accounting of the murder and dismembering of the parish housekeeper by the New York priest, the Church survived that scandal, they'll survive the child sex abuse scandals.

Quinn, a canon and Ohio civil lawyer was a past recipient of the St. Thomas More award at a Red Mass luncheon, also advise all these Canon lawyers at the same speech, cited above, to go back to their diocese and comb through the personnel files of their priests and pack up the evidence to the Vatican embassy in Washington where there was diplomatic immunity.

It is chilling to think in light of the dump of documents by the diocese of San Diego, in light of the scope and scale of crimes against American children, in light of the active obstruction of justice by the various Diocese nationally, Justice Samuel Alito is comfortable doing what he did in Michigan.  Alito was honored at an "invitation-only" dinner.  Would Justice Alito feel as comfortable at a service for Klan lawyers? 

What You Do, On Your Way Out of the Door--Karma Ghosts

This video has played a major symbolic role in my understanding of my current situation and it has helped me organize my thinking about justice.  The reporting about a disciplinary case, and the story I published yesterday, about the lawyer caught stealing from the blind vendor brought the clip to mind, once again.  If you have never seen it, it takes about 6 minutes, but it will stick with you.

The Legal Profession blawg (as I've said on many occasions, an invaluable resource) had this link to a disciplinary case opinion from the Commonwealth of Virginia relating to a public reprimand issued vis-a-vis the outgoing Attorney for Floyd County, Va.  Former County Attorney Gordon Hannett, Jr. trashed several computer hard drives belonging presumably to the citizens of Floyd County on his way out of office. 

Obviously, most attorneys who've practiced for anytime know of situations where attorneys engage in the most juvenile behavior, generally, as I've demonstrated with extreme clarity over the last year; but, especially so, (for some) when departing from former practices.  This usually is manifest in extremely ill-advised litigation versus former partners, associates, law firms, and employers; but this vandalizing of property is so unbelievably childish that it's refreshing to see someone get whacked by the disciplinary authorities. 

In OurCounty the number of lawsuits among former law partners could fill a volume or two "reporters," although I haven't seen a hard copy "reporter" in quite a while come to think of it.  Father against son, son against father, cousins suing cousins, Big Law suing departing practice groups, associates suing former firms on various aspirational theories.  The BSL (my wife, the Blond Super Lawyer) and I were sued for fraud, etceterra, following the break up of the BSL's law practice by a former associate employee and the BSL's former law partner.  That law suit settled last week for nickels after two and half years of pre-trial hearings. 

The problem with the post-law firm break up litigation is that it accomplishes, nothing;  the litigation distracts from everything, especially representing clients and making a living;  and, when the fact of the litigation becomes well-known within the practice-area of any given region, the folks initiating the lawsuit are forever after mistrusted, unless there was some really compelling justification.  And even then who wants to work with someone who is going to sue you afterwards?  Just because you can wreck havoc, don't wreck havoc--no one will trust you; no one wants to do future business with you; no one will sympathize with you.  I realize I am repeating myself, but these are hard life lessons learned--learn these lessons at my expense. 

Now having spent years being sued into a turnip I genuinely have no animosity.

Did I call my wife's former coleagues names?  Not going to happen.  In fact, from the bottom of my heart I wish them peace, prosperity and joy. 

These lawyers initiated the reporting of my tax offenses to the IRS, as well as my escrow account practices to the OurState disciplinary counsel.  While I am going to go to prison for several months, and I have temporarily (?) lost my license to practice law, these lawyers saved my sanity and possibly my life.  I am sober.  My head is held high.  I've spent the last year and a half helping myself and others and conducting a pretty thorough inventory of character defects which if you have followed the Bad Lawyer blawg--you can read for yourself.  My wife's former colleagues did not cause my fall, they did not commit my ethical lapses or my tax offenses.  I did.  In fact, these former associates did have an obligation under the rules of professional responsibility to report what they perceived to be my offenses.  At great personal karmic cost to their reputations among the lawyers we intimately practiced together with for nearly 3 decades, these former colleagues, blew the whistle. 

Someday I will have completely paid the price for what I did.  Someday the BSL may re-emerge from our crushing debt.  But these guys who went out the door, my sense is that they are haunted by karma ghosts.

Monday, October 25, 2010

Being an Elected Judge in an Era of Angry Voters

It's tough being a good judge, especially when the voters are angry and ill-informed about the ethical obligations of your job. 

In Nebraska  Judge John P. Murphy  who is up for a "retention election" is being held to account for a decision to "recuse" himself form presiding over cases involving a law firm that filed a judicial complaint against a colleague.  The colleague, Judge Kent Florom was removed by the Nebraska Supreme Court for judicial misconduct; Judge Murphy objected to the actions of the law firm that filed the complaint against his former colleague.  Instead of prejudicing the law firms' clients Judge Murphy is doing what the rules of ethics require him to do--not hear the law firm's cases.  Here's the rest of the story from reporter Leslie Reed at the Omaha World-Herald:

"Opponents are asking voters to oust a Lincoln County district judge when he stands for retention on the Nov. 2 ballot.  District Judge John P. Murphy (pic, right)  of North Platte is among more than 50 Nebraska judges whose names will appear on the ballot for a constitutionally mandated vote on whether they keep their jobs.

Mike Groene, leader of the Western Nebraska Taxpayers Association, said he and other citizens have been calling radio stations and writing letters to newspaper editors in a word-of-mouth campaign against Murphy.  'There’s no political action committee — it’s just citizens getting involved who are irate with his behavior,' Groene said. 'He’s costing us tax dollars, he’s costing individuals when they appeal and he’s costing the court system.'

[Judge] Murphy came under fire recently for his decision to recuse himself from handling cases involving members of a North Platte law firm whose complaint led to the removal of Lincoln County Judge Kent Florom.

[Judge] Florom, a county judge in North Platte, was ousted by the Nebraska Supreme Court for threatening a local prosecutor and trying to influence a juvenile court case.  [Judge] Murphy said he recused himself because he disagreed with how the law firm handled its complaint against Florom.

'I did what I was supposed to do,' he said, saying he recused himself because he did not think he could be impartial in handling the firm’s cases.

However, in a pending ethics complaint against Murphy, former State Sen. Ernie Chambers of Omaha says the judge’s actions would discourage other lawyers from coming forward to report suspected judicial misconduct.  The Nebraska Constitution requires judges to go before voters at the first general election that occurs three years after their appointment. After that, they stand for retention every six years.

Groene said he was concerned about the misconduct allegation, as well as Murphy’s relatively low approval rating by lawyers who practice in his court and the number of his decisions that are overturned on appeal. Groene also said he was angered over Murphy’s decision to cancel an election on a petition drive that challenged the use of a hotel tax to pay for North Platte’s Golden Spike monument.

Murphy said it’s in the voters’ hands whether he should be retained after 27 years on the bench.

Other judges facing a retention votes this November include:

---Chief Justice Michael Heavican, who will face voters for the first time since his October 2006 appointment.

---Lancaster County District Judge Jeffre Cheuvront, who made national headlines with a 2007 order prohibiting a woman from using the word 'rape' when she testified against a man accused of sexually assaulting her.

----Douglas County Juvenile Court Judge Elizabeth Crnkovich, who received the lowest approval rating of any judge in the state in a recent performance evaluation conducted by lawyers.

The Nebraska State Bar Association makes no recommendation whether an individual judge ought to be retained or removed, said executive director Jane Schoenike.  However, it attempts to assist voters by conducting a performance evaluation every two years in which lawyers submit anonymous reviews of the judge’s skills and recommend whether the judge should be retained. The results of the evaluation are available on the bar association’s website.

The Nebraska Judicial Branch also provides an online voter’s guide on judges, including brief biographies of some judges. 'We urge citizens to take the decision very seriously. They have the ultimate responsibility,' said Schoenike.

[Judge] Crnkovich, a former juvenile court prosecutor, was appointed a juvenile court judge in 1995. She has a lengthy résumé of involvement in issues facing youths and played a leadership role in developing Douglas County’s 'problem-solving'  courts, designed to aid juveniles and their parents in overcoming chemical dependency.  However, in the 2010 bar association survey, only 37.3 percent of lawyers participating thought she should be retained in office. She received her lowest marks for temperament and demeanor and for making  'undue personal observations or criticisms' of those in her courtroom.

[Judge] Cheuvront’s controversial ruling came in a case in which a woman accused a man of taking advantage of her drunkenness to sexually assault her. He granted a defense attorney’s request that the woman be forbidden from using the word 'rape' when she testified about what happened to her.  Cheuvront nonetheless appears to be a well-regarded judge among lawyers who practice before him. Appointed to the bench in 1983, Cheuvront was recommended for retention by more than 91 percent of the lawyers who evaluated his performance.  Cheuvront said that facing a retention vote every six years is better than having to raise money and campaign for office, as judges in some states have to do.

'It’s a good balance, and it serves the people of Nebraska very well,' he said."
Look, Judge Murphy may be a martinet but, he's right--if he can not be fair and impartial in the matters before him brought by this law firm, the code of judicial conduct requires that he remove himself.  This "angry taxpayer" is right, Judge Murphy's decision probably costs the taxpayer the services of the guy they hired to be judge.  On balance, I think removing a judge because of an "ethical" decision sets a pretty poor precedent for Nebraskans, but this sort of thing seems to be the thing of the day.  We all, are in our Robespierre-moment.

Why Are Some Killers Put to Death and Others Not?

This country's system of capital punishment is fundamentally flawed by arbitrary, inconsistent, dangerously inaccurate convictions and sentencing as well as documented racist state sanctioned slayings. 

The report at of the death by natural causes of this country's former youngest death row inmate, confirms this firmly held belief:

"Todd Ice (legt) died Thursday at Jefferson Regional Medical Center in Crystal City. He was 47, according to an obituary posted by Garden View Funeral Home.  Ice was sentenced to death at the age of 16 after being convicted of murder for the 1978 slaying of his 7-year-old neighbor in eastern Kentucky's Powell County. Ice's father, Dean Ice, told The Courier-Journal in Louisville, Ky., that his son died of an apparent heart attack.
Syl Knox, whose 7-year-old daughter, Donna, died in the attack, said he and his wife Sheila were relieved to learn of Ice's death. Sheila Knox, who was bound, beaten and stabbed by Ice, survived and later identified him as the assailant.

The Kentucky Supreme Court in 1983 reversed his conviction and death sentence, and he was retried in 1986. He was convicted of the lesser offense of manslaughter during extreme emotional disturbance and sentenced to 20 years.  Ice was eligible for parole at the time of sentencing based on time already served, but the state Parole Board, after being inundated with petitions from eastern Kentucky residents, ordered Ice to serve his full sentence.

He was released from prison in the mid-1990s and appeared on CBS' 60 Minutes in 1996, where he said he was taking anti-psychotic medication and was "not a violent person any more."

Ice later settled in Missouri. The family is holding a private burial at a cemetery in Muncie, Ind."
Some men and women accused of heinous crimes die by capital punishment, some do not.  We are supposed to believe that capital punishment is a rational and civilized method of justice.  It is not.  The death penalty is arbitrary and capricious and cruel to all involved.  Capital punishment serves only our collective outrage and even then the administration of this penalty is so wildly imperfect and unpredictable that it serves our righteous anger, poorly if at all. 

The thing is, we all die.  Are we ever free of the crimes we committed?  I think not. 

Stealing from the Blind

Elwood J. Walzer (real name) is a retired New Jersey attorney who according to a Debra Cassens Weiss story at the was censured for stealing from a blind courthouse vendor.  This is a link to the New Jersey Suprme Court disciplinary opinion which contains, Walzer's excuse, the vendor was an old crank who didn't like to make change.  According to Ms. Weiss' story, "[Attorneyh] Walzer was a lawyer and regulatory officer for the Department of Human Services. He was caught on a surveillance camera in the fall of 2007 taking food and beverages at least 14 times. He was not criminally prosecuted."

Many of the State buildings and courthouses, here, in OurState have "blind" stands for purchasing refreshments or newspapaers. 

Many local news stories, like this one, make me think of Karmic justice; will Walz come back as a blind dog in is next reincarnation?  Maybe just thinking this stray though makes it so in some dimension. Remarkable to think that a lawyer working and retiring from a "human services" job could do this to another human being.

The San Diego Catholic Diocese Document Dump

At this link you can read comprehensive documents about the pedophile preists of San Diego, California.  The documents were released in the wake of the 2007 financial settlement reached with victims. 

Remember that those of us who brought these lawsuits were telling you the truth.  It's what allows me to hold my head up.

Thursday, October 21, 2010

When You Funnel Hundreds of Thousands of Dollars to the Wife of a US Supreme Court Justice, What Do You Call That?

Read Karen Tumulty and Kevin Merida's article at the Washington Post for this and other head-scratching conudrums about Justice Clarence Thomas and his questionably-hinged spousal unit.

Grave Site Eavesdropping

Sometimes I come across local news stories in my trolling of websites that are so mind-boggling that they need and deserve amplification, but with my limited education and experience I don't quite know what to say or how to say it.  Of course as any follower or occasional reader of this blawg will readily tell you, that rarely do I desist from posting.  Notwithstanding when totally flummoxed there are a few cyber resources available to me and on the criminal defense-side I've sent one or two items to Scott Greenfield who writes the Simple Justice blawg. 

Yesterday, I came across the story of the Detroit area brothers who were secretly recorded at their parents' grave site.  The local cops and prosecutor want to use the recorded surveillance of "non-expression" of grief by one of the brothers to supply motive for a homicide prosecution.  That's right, the cops planted(!), "bugged," the grave!

I must say, I found this story breath-taking in what it reveals about the audacity and arrogance of law enforcement, but as I said words failed me.  Fortunately, Scott is smart enough to handle the story and he wrote a brilliant essay--which is must reading if you care at all about liberty, freedom, and justice.  Oh, and decency.

Aaron Biber Update--18-Years for Raping Teen

Former Big Law attorney, president-elect of the Minnesota State Bar Association, and Super Lawyer Aaron Biber was sentenced to 18-years in prison for raping his 15-year old neighbor. 

Here's the story at the Minneapolis Star-Tribune.

This is the link to all the past Bad Lawyer stories on Biber.

More on Lying Florida Politicians

Remember the Miami Herald columnist Fred Grimm, the journalist who told us the incredible story, re-posted on Bad Lawyer, of the North Miami, Florida mayor who can't remember who gave him the new Porshe?  Grimm has further tales of lying Florida politicians, all characters right out of the novels of Grimm's Miami Herald colleague, Carl Hiaasen:

"Four years ago, a Hillsborough County commissioner's wife bought a house on a lake in the Ozark Mountains with someone else's money.  Her hinky real estate deal in Arkansas now threatens to take all the fun out of political mendacity back in Florida.

Used to be that lying-by-omission on a candidate's financial disclosure form was a low-risk way to avoid embarrassing revelations. Like Bal Harbour City Councilman Joel Jacobi who failed to disclose that he was collecting rent on his condo. Which might have caused voters to wonder whether he actually lived in Bal Harbour.
Last year, the Florida Ethics Commission's advocate characterized Jacobi's credibility as `zero. If there is a number lower than zero, than it's that.'  Yet he was fined only $3,500. Chump change.

Among the sins of ousted Miami Commissioner Angel Gonzalez was a failure to disclose $135,000 in rental income. Other crimes led to his removal from office last year. The disclosure problem cost him a piddling $2,400 fine.  Another Miami commissioner in legal trouble, Michelle Spence-Jones, failed to disclose $46,000 legal liability. But that was considered the least of her alleged transgressions. Rung up a $500 fine.

U.S. Senatorial candidate Kendrick Meek's failure to disclose a relationship with a now-bankrupt medical waste firm amounted to a shrug.

And congressional candidate David Rivera still can't seem to remember his employers over these last few years. But Rivera's onetime claim to have worked for USAID magically disappeared from his amended disclosure form this week after the Miami Herald reported that the agency had no records of a relationship with Rivera.

Good timing, David. Suddenly, dodgy disclosures might mean something.

[But, Change is in the Air, at Least Temporarily]
Mearline Norman's Arkansas vacation house changed the calculation. The wife of Hillsborough Commissioner Jim Norman paid $527,717.34 for their resort home. Turns out that $500,000 of the cost was covered by Ralph Hughes, a Tampa concrete magnate who did lots of business with the Hillsborough County Commission.  Norman, who won this year's Republican nomination for state senate in a district with no Democratic opponent, failed to disclose the Arkansas house. The fellow who Norman defeated in the Republican primary filed suit.

The trial featured Big Jim claiming he never asked his wife, who hasn't worked since 1993, how she came up with the money. He explained the vacation home as the product of a `business partnership'  between Mearline and Ralph.  `The court finds this testimony patently absurd,' said Leon County Circuit Judge Jackie Fulford.

Then she utterly changed the game in Florida. On Friday, Judge Fulford tossed Norman off the ballot. A six-man committee from the Hillsborough and Pasco Republican Parties will choose a replacement candidate.

[But Has Anything Changed?]
Lying on disclosure forms finally meant more than a piddling fine. You could feel the tremors running through the political establishment.  Except the political establishment has never been much bothered by candidates who fudge disclosure forms. Not even a $500,000 omission.

The St. Petersburg Times reported this week that the nominating committee would likely replace the lying Jim Norman with -- you've guessed it -- the lying Jim Norman. So much for consequences."
Locally, we have a suburban mayor, who was a high school drop-out.  He was the son of a man who owned and operated a gas station.  Over his many decades in public office, the Mayor became a millionaire.  How?  I'm not sure I have a precise answer. It had something to do with getting a "taste" of every development that happened in his affluent 'burb.

When one of his daughters accused him in a lawsuit of sexaully abusing her, the mayor dealt with the charges that he learned were about to surface in the media by preemptively calling his own press conference at the local firehouse--denouncing his daughter as "brain washed" by a hypnotist.  Hizzoner did not reveal what I knew, his other daughter corroborated the abuse, in depositions conducted by his attorneys. 

Later, Mayor Molester's constituents re-elected him.  Subsequently, he single-handedly undermined the expansion of the statute of limitations for victims of child sex abuse.  He testified at the OurState General Assembly through his testimony about the consequences of "false accusations" that "ruined [his] family" and caused him to have a heart attack.  The chain-smoking mayor omitted to mention that his marriage fell apart when he began screwing his City Hall secretary who was young enough to be his daughter. 

Mayor Molester sued me too, after  I appeared on the OurTown version of Good Morning America with his daughter.  In response to a question about the status of his daughter's lawsuit I accurately summarized the claim which had settled in his daughter's favor.   In the  "defamation" lawsuit he claimed I "smirked" when I provided the journalists with digest of his daughter's case against him. The case Mayor Molester filed against me was dismissed as frivolous. Unfortunately, it triggered a very poor decision on the part to shelter my finances from that time forward thinking I would protect my then newlywed wife.  I now recognize that these early practical decisions were the seeds of my destruction as a businessman; whihc I then compounded by many more unethical decisions on money management, as a practicing lawyer. 

Dahlia Lithwick on Ginni Thomas

At Slate there is further proof that it is Dahlia Lithwick's world and the rest of us pick up the crumbs.  Lithwick correctly notes that the Ginni Thomas "olive branch"-demand for an apology/further twist in the Clarence Thomas-Anita Hill controversy--is utterly inexplicable beyond Thomas-centric egoism.

Curious Case of Constance Pinson Heard Candidate for DeKalb County Prosecutor

The Atlanta Journal-Constitution has the remarkable account of the local lawyer with serious prior disciplinary history who is a serious candidate to become the Dekalb County (Georgia) prosecutor.  As the Bad Lawyer I know I have a lot to offer the legal profession even from my lowly perch as a blawger, but run for public office?  I think not.  Then again, there's Yale Law graduate, Joe Miller, who is about aa unethical a character to come down the pike in a long time--who might just become a U.S. Senator from Alaska, of course that's Alaska.  Oh, and then there's: Sen. David Vitter, Sen. John Ensign, Sen . . . I digress, here's AJC reporter Megan Mattecucci's story:

"One of DeKalb County’s two candidates for district attorney has been suspended twice by the State Bar of Georgia.  Decatur attorney Constance Pinson Heard (pic) is running against former DeKalb Solicitor-General Robert James.  The two are competing for the seat vacated by Gwen Keyes Fleming, who resigned last month to become a regional administrator with the federal Environmental Protection Agency.

Records obtained by The Atlanta Journal-Constitution show Heard was suspended twice for violating State Bar standards. James has no complaints with the Bar, according to its records.  The state Supreme Court found Heard guilty of three Bar standards: dishonesty and fraud; willful abandonment to the detriment of her clients; and commingling clients’ funds with her own.

The director of the National Institute for Teaching Ethics & Professionalism, who is not involved in the DeKalb race, said he would be concerned about any lawyer who violated those specific standards.  'I have no hesitation in saying that someone who has been suspended for violating [these standards] should not be a candidate for district attorney.' said Clark D. Cunningham, who also teaches law and ethics at the Georgia State University College of Law.

According to court records, Heard accepted retainer funds from clients for divorces but never filed anything in court on their behalf or represented them.

In 1998, she admitted to violating the Bar standards and agreed to a six-month suspension. She subsequently was suspended again in 2002 and ordered to return the money to her clients, court records show.  For both complaints, Heard failed to respond to the Bar’s notices, according to court records.

Heard said the complaints occurred when she was suffering from depression, but she declined to talk about the specifics of her condition.  'That was medical. I’ve never done anything criminal,'  she told the AJC on Tuesday.  Heard said she stopped practicing from 1998 to 2002 and was treated. The Supreme Court reinstated her in 2002 after completing a mental evaluation, court records show.

'I’ve been practicing successfully since then,' she said. 'I’m doing quite OK.'

But Cunningham said those Bar standards, which are set by the Supreme Court, are some of the most important rules that govern lawyers.  The three standards Heard was cited for are all punishable by disbarment or suspension -- the highest punishments.

'If the Supreme Court suspended a lawyer from practice, that means the court did not find any circumstances that excused the misconduct,' Cunningham said.

Both candidates said they hope voters make a decision based on their records.  'My record speaks for itself. Her record speaks, including multiple suspensions, speaks for itself,' said James, who resigned as solicitor-general last month to qualify for the race.  Heard, 63, touts 15 years of working in private practice. Before becoming a lawyer, she taught in Atlanta public schools and at what is now Georgia Perimeter College.

James, 38, has spent his entire 11 years practicing as a prosecutor, including working with the DeKalb and Rockdale County district attorney's offices. In DeKalb , he served as the special prosecutor for crimes against children. In 2006, he was elected solicitor-general.

Both candidates said they are focused on public corruption, along with making DeKalb safer.  Fighting public corruption is one of the reasons its is essential that the right candidate for district attorney win, officials said.

'There is no public official in the U.S. with more discretionary power than a district attorney or the equivalent position in the federal government. For example, a decision not to prosecute is not reviewable by any court or higher official,' Cunningham said. 'Such incredible power should only be given to persons who exemplify the utmost in integrity and ethics.'"
Some of the finest, most profound, and probably ethical people, I know, are active in recovery and professional mental health programming.  Could you reasonably expect that some of us might be able to one day, honorably serve in positions of trust and public service after recovery?  Sure.  Might one of us prove to be more ethical and more honest than someone who has not experienced what we have experienced--you betcha! 

Examples of this paradox work themselves out around the country all the time, witness, New York's Eliot Spitzer, Maricopa County;s Andrew Thomas, Cuyahoga County's William Mason--all paragons of piety and ethics.  All gentlemen who were all quick to see the moat in the eye of others but blind to their visual defects. 

Now objectively, does the idea of a lawyer who has been disciplined multiple times with a history of depression sound like a good candidate for prosecutor?  No.

Does Constance Pinson Heard sound pretty clueless?  Yes.

Wednesday, October 20, 2010

Father Sam Update--Sentencing

Father Sam Ciccolini, the Akron-Canton area priest caught smurfing (or structuring) huge sums of cash; and, who embezzled millions from his "charitable" foundation for alcoholics and addicts was sentenced to 1 day in prison according to a story at  Fr. Ciccolini was also ordered to pay $4 million dollars in restitution and fines.  Here's the update from

Three Things To Say If Ginni Thomas Calls

The New Yorker has a list of three things you should say if Associate Justice Clarence Thomas's wife, Ginni Thomas calls demanding an apology.  At the link.

Not a Bright Man, Not a Lawyer, Not a Firm Partner

New Orleans Times Picayune writer James Gill has this column on the law firm faux pas of Breazeale, Sachse & Wilson for hiring former Governor, and unlicensed Lawyer, Mike Foster (pic, left with current Governor, Bobby Jindal then a 24 year old boy whiz and member of Foster's cabinet) and featuring former Governor Foster on the firm's website as a "partner," despite his having never taken the Louisiana bar exam or being otherwise admitted to practice law in Louisiana.  Here's Gill's column:

"If you accused a major law firm of having former Gov. Mike Foster as a partner, you could probably be sued for defamation.  For that to be true, it is not necessary to disparage the Foster intellect. What the hell. Let's do it anyway. He wasn't the swiftest governor we ever had.  But, even if he were, anyone employing him as an attorney could be in big trouble, because he has never taken the bar exam.

It was therefore quite a knock on the Baton Rouge firm Breazeale, Sachse & Wilson to suggest that its clients could expect legal advice from Foster in return for their fat fees.  Breazeale, Sachse were in no position to protest, however, and do not appear to have been fazed by the canard that they were harboring a phony. It was their own website that contained what the state Supreme Court found to be 'false, deceptive and misleading information' about Foster, who was identified as 'a government relations specialist and a partner' although he 'is not now nor has he ever been a licensed Louisiana attorney.'

You'd almost think that Breazeale, Sachse, where Foster's son Murphy really is a partner, was touting its gubernatorial connections to drum up business. The firm boasts a governmental relations department, which provides lobbying services and drafts bills for legislators to pass and, sometimes, read.

Banish any unworthy suspicions, because neither Murphy Foster, nor any of the other four attorneys who made up Breazeale, Sachse's management committee, had any idea what was on the firm's website. That was all handled by an office manager, who up and posted the bogus dope on the sly.

It is amazing, when corporate mischief comes to light, how often it turns out that the fault belongs entirely to a relatively humble employee who is no longer around, and so it was here. The office manager has left the company for unrelated reasons, so the motive for spreading 'false, deceptive and misleading information'  can only be guessed at. If the management committee was unaware that Foster père had been transformed into an attorney on the firm's website, unnamed parties outside the firm were more vigilant and a complaint was filed with the state Office of Disciplinary Counsel.

The Disciplinary Counsel investigated and concluded that the management committee was not party to any deception but had broken the rules of professional conduct by failing to supervise 'a non-lawyer assistant.' Evidently whatever the management committee does, it does not do much managing. The Supreme Court accepted the Disciplinary Counsel's findings and issued Murphy Foster et al. a reprimand.

Mike Foster does have a law degree, having concluded, when he became governor, that there wasn't that much to do so he might as well enroll at Southern to fill in the time. Whether he could pass the bar exam will never be known.  He does work as a consultant for Breazeale, Sachse, however, albeit as a layman and no doubt his name has a lot of pull for clients seeking favors from government. It is unlikely that clients came running because they wanted the benefit of Foster's legal brain; his clout as a former governor is the obvious come-on, and listing him as a partner on the website may not have made all that much difference.

Mike Foster is well qualified to provide political advice. He has, for instance, unrivaled experience in the field of ethics, having surreptitiously paid David Duke the hugely inflated price of $150,000 for a list of donors to his Aryan cause. For that subterfuge, committed in his first campaign, Foster became the only sitting governor ever fined by the state Ethics Board. The experience may also have given Foster a unique insight into coincidence, for, no sooner had Duke trousered the moolah, than he abandoned his own plans to run for governor.

Not long after going on to win the election, Foster gave Bobby Jindal his first big government job. With such connections, legal expertise would be superfluous.
Non-lawyers are not permitted to practice law, nor are law firms permitted to "partner" with non-lawyers even in areas where the non-lawyers are utilizing their expertise. 

In my career I occasionally encountered very dicey relationships between defense law firms and insurers, and third-party administrators (TPA) that seemed to cross those lines.  A major lawsuit filed in OurState concerning the unauthorized practice of law dragged out for nearly a decade and shaped many of the current practices of TPAs in various employment and labor related areas of the law.

As a suspended lawyer, my activities are incredibly circumscribed by a rule of the OurState Supreme Court.  I am not permitted to give legal advice to clients, I am not allowed to talk to clients other than as a "receptionist," and more importantly each of the client matters I work on generates a notice to the client of my status as a "suspended" lawyer, a client can choose to have me not work on their matter.  Amazingly, despite these limitations the incredible folks I work for find value in my efforts--and, provide me with income and health insurance. 

I will be forever grateful. 

Toledo's Correspondence Course Colonel--Rich Iott, Re-enactor, Retard

Tom Troy at the Toledo Blade has this remarkable account of a local republican congressional candidate that falls within the narrative arc of the "stolen valor" cases that we've talked about on Bad Lawyer and in the media generally this year.

A "stolen valor" case, to refresh your recollection, is where a guy falsely claims to be a war hero or army veteran, usually for no other reason than for the perception that the status brings some sort of prestige or honor.  These sorts of cases range from individuals who maybe overly-identify with veterans and possibly mean well, to outright scoundrels who use the claimed status to defraud benefits or money from governmental agencies.  Laws to target these sorts of frauds have been widely-enacted and are being struck down as unconstitutional infringements on free speech while prosecutions for criminal fraud which encompass misrepresentations of military honors or veteran status are appropriate and proper. 

Troy's story is not a "stolen valor," case.  It's more consistent with an attempted theft, or gross exaggeration a la, Attorney General and Senate candidate Richard Blumental in Conneticut or Mark Kirk in Illinois. 

"Nothing dresses up a politician's resume like military experience — and Republican Rich Iott has not been shy in making the most of his in the contest for the 9th Congressional District seat.  Mr. Iott, who is running against incumbent Marcy Kaptur (D., Toledo), is a colonel in the Ohio Military Reserve, an unarmed, volunteer state militia that is authorized by the Ohio Adjutant General.

The Monclova Township businessman often mentions his Ohio Military Reserve experience on the campaign trail and in mailings to prospective voters.  One glossy mailing portrays Mr. Iott in civilian and military garb and says, 'Rich Iott understands the sacrifices our men and women in uniform have made because he serves himself.'  Another one says, 'Reservist Rich Iott will stand up and fight for our veterans.'  But Mr. Iott's claim to be a member of the military, when he was never on active duty, have rankled those serving in or retired from the armed forces.

Retired Ohio Adjutant General John Smith, a Vietnam veteran who was once commander of the 180th Air National Guard fighter wing based at Toledo, said the OMR has no role in the national defense and has never been called up for duty.  'He's stretching it in terms of what the Ohio Military Reserve does. He's giving the impression, I would suggest, that he is involved in matters related to national security and to state matters, and they are not. They are never consulted,' General Smith said.

General Smith said it's unlikely the governor ever will activate the reserve because of the cost of paying a lot of high-ranking reservists.  'They are extremely rank-heavy,' General Smith said.

The Ohio Military Reserves may be the Rodney Dangerfield of military organizations, but the members take their jobs seriously.

'Our people are sworn in. They are working for the state,' said Mr. Iott, who is deputy commander.

Unlike the Marine Corps and Army Reserves and the Ohio Air National Guard and the Ohio Army National Guard, the Ohio Military Reserves cannot be called up for national service.  However, if the governor needed the services of the Ohio Military Reserve, he would only need to order them up and they would go on the state's payroll in service of the state defense forces.

Sarah Reeseman, public information officer for the reserve, said the Ohio Military Reserve is an official state 'militia' authorized in state law.  'There is the legally authorized Ohio Revised Code militia and then there's the guys who run around in the woods who are illegal militias,' Ms. Reeseman, who holds the rank of major, said. 'We do serve as a component of the adjutant general's office.'

The reserve has an authorized force of 491 and an actual force at present of about 350, she said.  Its members train one weekend a month and one week a year at Camp Perry, west of Port Clinton. They receive no pay for their service, but the state budget has in the past authorized $15,000 to subsidize the cost of training.

'How I got involved is basically out of high school,' Mr. Iott told The Blade. 'I wanted to join the Army but was turned down because I had a heart murmur. I didn't know about this organization at the time. I joined in January, 1984, and have been in ever since.'

Most of Mr. Iott's resume involves assignments as a military policeman in Walbridge, Bowling Green, and Lima, Ohio.  One typical entry reads: 'Commander, 4th Military Police Brigade, Bowling Green, Ohio — May '06-Aug. '06,' with the note, 'not on active duty.'

As a member of the Ohio Military Reserve, Rich Iott cannot be called into national service.
Mr. Iott's military biography includes 59 courses he has taken from the Army, the Marine Corps, the Air Force, and other agencies — most by correspondence.

But in his campaign appearances Mr. Iott at times has faced criticism that his claims to a military status are exaggerated.  During a televised debate Sept. 27, Miss Kaptur quizzed Mr. Iott on how many 'battalions and brigades' he commands and in what theaters of operation they were deployed.

Miss Kaptur said voters are getting an outsized impression of Mr. Iott's military record and his status as a 'colonel.'  'I think that his service is being misperceived by the public, because a lot of people think or assume that he was a colonel in regular forces,' Miss Kaptur said. 'It is not an active unit. It has not served in the active duty forces of the country.'

Miss Kaptur was once made an honorary captain of the Ohio Military Reserve, but hasn't mentioned it in her campaign mailings.  Miss Kaptur said she applied for admission to the U.S. Air Force Academy while in high school but was denied because the academy wasn't admitting women at the time.  She instead cites her lead role in the creation of the World War II Memorial in Washington.

During the GOP primary campaign in the spring, Mr. Iott was assailed by supporters of his Republican opponent, Jack Smith, a Marine Corps veteran, that he was overstating his military service. 'It stretches the point about being military,' Mr. Smith said during one candidate forum.  One of Mr. Smith's supporters, Tom Morgan, state co-chairman of United Veterans for Ohio, said at the time: 'For him to tout himself as a 30-year military guy is a slap in the face to a veteran. He's a noncompensated volunteer.'

And in a televised debate last week, Mr. Iott was unable to explain why his occupation was identified as 'soldier' and his employer as  'state of Ohio' on a $500 contribution he made to the Republican National Committee in March, on a Federal Election Commission record.

During that debate, Miss Kaptur said, 'Well, it seems that that isn't true, that you weren't a soldier.'  When Miss Kaptur asked him if he was a veteran, Mr. Iott said, 'I have never claimed to be a veteran. My opponent in the primary claimed that I claimed that. But I have never served in the United States armed forces. All of my service has been in the state guard.'

The reserve traces its history to before the founding of Ohio, according to the reserve's commanding officer, Brigadier General Charles Rowell. And it has had several names, including Ohio Volunteer Cavalry.

It received its current name in the mid-1980s, converting from the Ohio Defense Corps, Mr. Rowell said.

In the past two years, the Ohio Adjutant General's office has revised the reserve's mission, from military police to 'civil support and sustainment brigade,' with specific duties for mass care — shelters for people displaced by a tornado or flood, for example, and logistics and resource support — moving material where it needs to be.  Mr. Iott said a lot of members quit the reserve because they didn't like the new mission. He said he supported the switch  '100 percent.'

Members say the new mission makes them more likely to be used at some point because there was a surplus of units capable of being military police and too few capable of providing mass care and logistical support. Mr. Iott said those were shortages that became apparent after the Hurricane Katrina disaster.  The unit quit training with firearms a few years ago because of the cost of staying certified, he said.

Mr. Iott has battled criticism over the last two weeks over revelations that he participated in war re-enactments wearing the uniform of a Nazi SS soldier. Critics have accused him of insensitivity to the victims of Hitler's Holocaust, while Mr. Iott has insisted he simply was indulging an interest in history.

He said there's no parallel to be drawn between his re-enactment activities — which included other wars, as well — and the Ohio Military Reserve.  And he said he's not surprised to be taking abuse from higher up the military pecking order.  'The active Army looks down its nose at the Army Reserves, the Army Reserves looks down its nose at the National Guard. That's been going on for hundreds of years,' Mr. Iott said."
Yes, this is the same idiot who was running around dressed up in a Nazi SS uniform.  He's a wanna-be-something.

I'd love to know the provenance of the chest full of medals in the top image.  My guess is questionable at best.  He has on an array of insignia and awards that seem highly improbable if not actually fraudulent.  The image on the left was supplied by Iott, himself, according to the Blade website.  This guy is so over the top he makes Christine O'Donnell and Sarah Palin seem credible.

Jury Voir Dire Uncovers Witness to Crime

The Cincinnati Enquirer has the story of the juror, who becomes the witness.  Check out reporter Kimball Perry's story and tell me that this isn't ready-made for a Law & Order episode:

"In a stunning twist to a Tuesday Hamilton County jury trial, Najah Johnson-Riddle went from juror to witness.  'I was astonished,' said defense attorney Roger Bouchard.  'I was shocked and surprised,' Assistant Prosecutor Ryan Nelson said.

Common Pleas Court Judge Robert Ruehlman said from the bench he'd seen nothing like it in his 33 years as a prosecutor and judge.  Johnson-Riddle was one of 12 jurors seated to hear the domestic violence and felonious assault charges against James Capell, 42, of Colerain Township.

Capell is accused of - but has pleaded not guilty to - brutally beating a woman in her College Hill home May 30. He is accused of breaking the glass out of the woman's door in the 1200 block of West Galbraith Road, entering her home and using his keys to beat her in the face, then choking her and biting her ear. 'He punched her in the face. He beat the crap out of her. He brutalized her,'  Nelson said of the victim who needed several staples to close a head wound

A neighbor across the street anonymously called 911 to report the brutal beating.

When police arrived, though, Capell is accused of keeping the woman in the bedroom, covering her mouth and threatening to kill her if she cried out. The police, seeing nothing amiss and hearing nothing, left.  When they did, the beating resumed. The victim was able to call a relative who called 911, resulting in the arrest of Capell - who already had two felony domestic violence convictions involving another woman and was sent to prison for it for two years in 2007.

Jurors were seated late Monday. The trial began Tuesday. Nelson gave his opening statements, telling jurors what he expected the evidence to prove. Bouchard was doing the same for the defense when juror number eight, Johnson-Riddle, stunned the courtroom and stopped the trial by blurting out she couldn't sit on the jury.

'She said, 'I was the (anonymous) person who made the 911 call,'  the assistant prosecutor said.

'She said, 'It woke me up out of my bed and I saw him beating on her. I thought she must be dead.''

Her outburst tainted the entire jury because it corroborated statements made by the prosecution and claims made by the victim, Ruehlman declared a mistrial.  The new trial begins Wednesday - and Johnson-Riddle will be called by prosecutors to testify against the man she originally was to sit in judgment against.

'My thought was 'No way.' There are millions of people here. She must be asking about another incident,'  Nelson said.

During jury selection, potential jurors aren't told the facts of the case. Instead, they are questioned so attorneys can determine the person's background, job and other information that will help them decide if that person should be seated.

The charges against Capell carry a maximum prison sentence of 13 years.
Judge Ruehlman may have not encountered this situation in 33 years, but I have.

Many years ago, I was trying a simple car accident case, when the jury venire (prospective, jurors) was ushered into the box.  I was given a list of the jurors, and their occupations.  One of the prospective jurors was the investigating officer in the underlying car accident--he signed the police report.  While the juror/cop was not called as a witness in my case, "liability" was not the issue, we were trying the case for a jury determination of damages, only--he was obviously not eligible to sit as an impartial juror. 

Unfortunately, the court began voir dire (questioning of the prospective jurors) without giving me an opportunity to point out the problem.  The Judge described the case is some detail with no obvious sign of reaction from the prospective juror.  The judge asked if any of the jurors knew any of the parties, no reaction.  The Judge asked if any of the jurors knew any of the attorneys, the cop/witness raised his hand.  "I think I know, Mr Bad Lawyer, over there (pointing at me,)" he said.  The Judge asked how he knew me. "I think he represented me in a workers' compensation claim," he replied.  He was excused from the jury.  It never dawned on this prospective juror that he was the investigative police officer in the motor vehicle accident.

I represented thousands of injured workers (and employers) in workers' compensation matters (I covered hearings for referring attorneys in addition to my own small practice) over two decades.  It never occurred to me that in addition to being the investigative cop, a witness, and a prospective juror--this officer also had been a client, if only, momentarily at a workers' compensation hearing.  This was just a remarkable coincidence.

Tuesday, October 19, 2010

Cuyahoga County Corruption Rears Its Ugly Head In Cross-Examination of Coroner

Cleveland Plain Dealer crime reporter Leila Atassi has this account of the murder trial of Matthew Warmus (pic, with legendary Cleveland attorney Edward LaRue) who by various accounts gunned down a parking lot attendant either in self-defense or in some sort of rage over a parking spot depending on who you believe.

"Lawyers for a man on trial for aggravated murder departed from questions about gunshot wounds at today to ask Cuyahoga County Coroner Frank Miller whether his relationship with Prosecutor Bill Mason's office compromises the scientific integrity of his work.   Miller did not have to answer the question. Common Pleas Judge Daniel Gaul sustained a prosecutor's objection to the question posed by attorney John Pyle, which drew on recent headlines that Mason influenced Miller's decision to hire the prosecutor's friend and political ally Patrick Coyne as his top aide.

Pyle and attorney Edward LaRue are representing defendant Matthew Warmus, who is accused of killing parking attendant David Williams -- shooting him twice in the abdomen and once in the head -- during an argument over a parking space before a Cavs game in April.

Warmus claims he acted in self-defense when he retrieved .40-caliber gun from his car and fired on Williams.

An emergency medical responder testified this morning that Williams was wearing an empty gun holster beneath his orange parking vest and insulated jumpsuit, but he did not recall seeing a gun that could have belonged to Williams lying on the ground as some crime scene photos depict.

Prosecutors called Miller among their first witnesses to describe his autopsy of Williams, photos he took of the victim's gunshot wounds and the coroner's homicide ruling.   Miller testified that two bullets entered Williams' abdomen near his belly button and exited from his lower back and right hip. Another entered behind his left ear, severing his brain stem and lodging in his face beneath his right cheek bone. Williams also had a wound on his left wrist that could have been caused by a bullet grazing the skin, Miller said.

[Defense attorney] Pyle began his cross-examination by asking about the gunshot wounds and whether Williams could have continued clutching his gun until he was shot in the head. Miller said it was a possibility. Pyle then asked whether the fact that the coroner's office is funded by the state could compromise the integrity of his work. When Miller said no, Pyle asked Miller if he works closely with [disgraced prosecutor Bill] Mason and whether the prosecutor recommends personnel for Miller to hire.

After Gaul sustained Assistant County Prosecutor Aaron Brockler's objection, Pyle asked Miller if he had ever been called to testify for the defense at trial.   Miller said, "Maybe once."

Miller told Plain Dealer reporters Sept. 8 that Mason and his chief trial lawyer, Steve Dever [put the major squeeze on the Coroner to hire Mason's pals and], told him to hire [a local politician and friend of Mason, Pat] Coyne in exchange for help with his political campaign.   Mason and Dever deny the accusation.  Miller also accused Coyne of pocketing thousands of dollars in campaign cash solicited from other coroner's office employees. The coroner fired Coyne less than two weeks ago, rescinded the termination letter, then fired him again this week, effective Friday.

Miller's spokesman, Powell Caesar, said Coyne ultimately was dismissed for budgetary reasons.  Cuyahoga County Public Defender Robert Tobik said last week that he did not expect the suggestion of impropriety in hiring decisions to prompt more defense attorneys to challenge work performed by the coroner's office.

Typically, the work done in the coroner's lab is based on hard science and is separate from the administrative function that Coyne served, Tobik said. If defense attorneys feel they have reason to challenge lab findings, they are always free to request independent testing, he said."
Here you have excellent criminal defense attorneys seizing on startling revelations that local corrupt politics have also tainted the objectivity of the important function of the elected-Cuyahoga County coroner.  The sheer scale of the bleeding in this county is breath-taking. 

Federal Prosecutor Won't Be Charged in Indecent Exposure Incident--Insufficient Evidence

Sean Cronin (pic), a federal prosecutor was arrested for exposing himself at a Miami River Bar but local prosecutors have elected not to charge him based on "insufficient evidence." 

The story is at the Miami Herald. 

Setting aside the seriousness of the alleged incident, when charged with indecent exposure I'm not sure you want it publicly said that there is "insufficient evidence."