Saturday, November 13, 2010

I Hate Saying Goodbye

When I started writing here, and it became apparent that nothing good, from my limited perspective was going to come of my tax and disciplinary woes, I promised to at least tell it all on Bad Lawyer.

My professional conduct deviated from the standards of the ethical attorney in the maintenance of my IOLTA account;  and, in the reporting of income and payment of taxes.  I rationalized that I would be able to "catch-up and negotiate."  This was delusional on my part.  I thought to myself that I was not stealing from my clients, I was just taking from my allocated attorney fees.  While technically true, the rules mean something--if in fact, I could not pay may bills, keep the phones turned on and pay the secretary without cheating then I really had no business holding myself out as being fit to practice law.  As the secrets of my incapacity compounded I was sicker, and less able to practice.  After 15 years of sobriety I relapsed, seriously oblivious to the connections between my unethical and illegal conduct and sobriety.  I thought my relapse related to my father's dying--I recognize now that my father's dying and the crisis in my family was just an excuse to medicate my more profound disorganization and emotional disorders. I was sick.

The most painful moment until now was standing in Federal Court and admitting to the Judge that I was a tax felon.  Not something I ever envisioned, not something I ever dreamed possible.  I genuinely respect the law, I did not think I could break the law.  I broke the law.  My heart and mind are shattered by what I did and what it means for my family and for me.  Thank God for my friends, family, and support system, especially AA and OLAP; looking forward from the time when I knew charges were coming down I did not imagine surviving the psychic blow that I knew was in store for me.  But I did.

Today, tomorrow, or Monday I will have myself driven down to the US Marshall's office to surrender and commence my 5 month incarceration. 

I am in extreme emotional pain, and the desire to go early is my recognition that I am not spending these remaining moments of freedom with anything but the heaviest of hearts.  My poor kids.  I can't imagine what it's been like for them this last couple of years. 

I will miss my children the most.  Despite the day to day disappointments and gnashing of teeth that parenting teenagers presents--they are the best things that ever happened to me, and they would not be in my life but for the willfulness of the BSL who demanded that we go out and fetch them from the universe.  My children are pure joy, smart, fun, loving and beautiful.  Their friends and family are blessed to know them and have them in their lives.

My friends: Pat, Sharon, Bill, Steve, Lester, Irving, Chris, Mark, Nancy, Ron, Laura, Robbie, Carmen, John, Chuck, Mike, Alex, Gail, Betty, Gayle, Yehuda, Keith,Tom, Marcia, my sisters: Sharon and Amy, my co-workers, and my neighbors are amazing!  Instead of abandoning me, they opened their arms and showed me more love, concern and care than I deserve or thought possible.  Thank you all.  I want you to know that several folks have played roles in reporting my offenses or claiming that I did this or that wrong or unethical act.  In all sincerity, I thank former peers and colleagues who felt it incumbent upon themselves to report me to the disciplinary and tax authorities--whatever their intention or motivation, they saved my life and freed me from the bondage of my secrets.   I wish all my friends, family and former colleagues:  peace, prosperity, freedom, love, justice, and health.

Please keep me and my family in your prayers--I know you will. 

Finally, while I am in Federal custody I plan to write, if only for myself to relate to you at some future point.

I hate saying goodbyes, but this blawg was a long good bye to who I thought I was, who I admire, who I am, what I think about the law, lawyers, and judges, how I and others fail, and what I dream about.  I dream about justice and love.  I dream that children are born without physical and psychological diseases, that they are loved, and that justice and peace prevail in their lives.  I dreamed that the law, and those who are practitioners in the law will work to advance this dream. 

It was an honor to be an attorney in OurState, a privilege.  I regret that my limitations cost me this privilege.  Someday I pray that a miracle occurs that will allow me to fully pay my debts and return to the profession I loved. 

Maybe my experience will at least serve to caution you to take very seriously the obligations to uphold the laws of your state and of the United States of America;  and, to take in all seriousness your duties under the Rules of Professional Conduct. 

I'll see you in April!

the Bad Lawyer

Wednesday, November 10, 2010

Judge Salcido Resigns

Remember Judge Salcido, the San Diego municipal court judge who turned her courtroom into an audition studio? 

She wanted to become the Hispanic Judge Judy.  Here's a link to my earlier report on her outrageous and offensive courtroom demeanor which included turning everyone into a object to be jeered and mocked.  Despite ethics commission findings of 39 violations, the judge continues to characterize her alleged abuses as "[her] style" and "humor."

The San Diego Union is reporting that the Judge struck a deal to preserve her law license but requiring her to relinquish her judicial office and take a public reprimand. 

Prosecutions Worth Writing on Toilet Paper!

Former Maricopa County attorney, Andrew Thomas (pic), pursued prosecutions and lawsuits against the political opponents of his boss, um, Sheriff Joe Arpaio (pic), that senior prosecutors in his office said were worthy to have been written on toilet paper according to emails and memos obtained by the Arizona Republic.  Arpaio (America's toughest Sheriff) and his Boy Andy are currently under federal and state investigation following a reign of Stalinist terror targeting local public officials and judges--which certain Tea Party activists profess to want to take national, if Arpaio's popularity on the campaign circuits of various states is any indication.  Here's a short excerpt from Yvonne Wingett and Michael Kiefer's story at AZCentral, this AM:

"Top prosecutors in the Maricopa County Attorney's Office had repeatedly cautioned Andrew Thomas over the last year and a half against filing criminal charges and a racketeering suit against judges and county officials.  But according to detailed interviews and e-mails gathered for an administrative investigation of a prosecutor at the center of those cases, Thomas ignored the advice and instead bypassed experienced prosecutors to assign the cases to attorneys who would prosecute them.

Lawyers in and out of the County Attorney's Office told Thomas that he did not have sufficient evidence. One prosecutor later said he was shocked the agency had filed a complaint against a judge. Another told Thomas the racketeering suit was so bad, it should have been written on toilet paper. Supervising prosecutors warned Thomas that lawyers he assigned to handle the cases were too inexperienced.

Thomas pursued the cases in spite of the warnings; all were later withdrawn or dismissed."
There are so many facets to this incredible tale of public abuse and private profiteering.  The story has been continuously featured on Bad Lawyer since the inception (read the archives) of the blawg--but, truth be told I have barely scratched the service of the sickness and depravity of these so-called "public officials." 

If you ever wondered if the satirical and prophetic cautionary notes of Orwell in Animal Farm and 1984 were overblown, witness Maricopa County, Arizona.  Arizona is just one of the places in the US where this sort of wholesale abuse of power and corruption in the name of "law and order," is taking place.  Thomas and Arpaio proved that you could rarely disappoint the voters by oppressing the dispossessed and immigrant classes.  Arpaio and Thomas got away with discarding individual constitutional rights, spending the tax payers' dime like drunken sailors on all manner of toys, travel and armament--but, they stepped over the line with the frivolous indictments and federal racketeering lawsuits of other elected public officials and Maricopa County judges.

As I said when Thomas filed the RICO lawsuit, ill-advisedly--Thomas and Arpaio's days are numbered.  You don't file frivolous lawsuits in federal court and rationally expect that you will get away unscathed.  The RICO action was summarily dismissed.  The arrogance of Arpaio and Thomas has proven to be their downfall.  Thomas lost his bid to win the Republican nomination for Arizona Attorney General to a Republican lawyer who was barred from the securites industry for ethics violations.  How bad must the voters think you are--to choose your opponent with this kind of history over you? 

Tuesday, November 9, 2010

Trenton, NJ Municipal Judge: "I'm Sick of Y'all!"

A Trenton, NJ municipal court judge resigned her seat at the insistence of the presiding court Judge or Trenton's Mayor, it's not clear.  What follows is an excerpt from Alex Zdan's report for the Trenton Times:

"Embattled city municipal court Judge Renee Lamarre Sumners resigned yesterday after she was directed to do so by Superior Court Judge Linda M. Feinberg, a judiciary spokeswoman said.  Sumners returned to the city bench Friday after Feinberg ordered her off more than a week ago following revelations the lower judge bounced checks for law license renewal fees, had IRS liens on her house and a warrant for her arrest.

'I’m tired of it, I’m tired of it,' she said. 'My health is being impacted, my family is being impacted, it’s making me sick.'  An audibly drained Sumners said her financial troubles began with a diagnosis of cancer in 2000 which has never gone into remission. 'When you are a cancer patient, and you have deductibles and you have medical bills, things snowball,' she said.

The decision to step off the bench for a week was 'mutual' between herself and Feinberg, she claimed, and Sumners had spent last week doing administrative work at the municipal court, she said.  Sumners denied her meeting with Feinberg yesterday led to her stepping down.

'The meeting with Judge Feinberg had nothing to do with my resignation,' she said. 'I met with the judge today talking about a homeless initiative for the city of Trenton.'

Feinberg and Sumners met face-to-face yesterday morning, said Winnie Comfort, a spokeswoman for the state judiciary. Comfort did not provide specifics of what was discussed at the meeting.

'All I can tell you is that she was told to step down this morning,' Comfort said.

Sumners agreed to do so and never retook the judgeship Feinberg had restored her to just this past Friday, Comfort said.

'She stepped down, she did not go down to the courthouse or down to the bench,' she said.

Sumners met with Trenton Mayor Tony Mack late yesterday afternoon, and submitted her resignation to him then, according to a statement released by the mayor’s office.

'In order to spare my family, the City Administration and Mercer Vicinage Judiciary any further embarrassment as a result of recent controversies concerning my appointment to the bench, I respectfully request that you accept my resignation as a judge of the Trenton Municipal Court effective immediately,'  she wrote.

In the city statement, Mack praised Sumners’ decision.

'Judge Sumners, thank you for your diligent and tireless effort to preserve the integrity of the City of Trenton’s judicial process,' Mack said. 'Your resignation further demonstrates your ability to serve the public’s best interest.'

City Council President George Muschal, a Sumners critic who had voted against her initial appointment and demanded she submit to a required background check, said Sumners’ resignation was the best outcome to the situation. 'Hey, it was (in the) better interest for the city of Trenton to go forward,' he said.

Only the state Supreme Court can remove a municipal judge from office.

The council approved Sumners in late August without a background check, and Sumners ignored demands she submit to one once she took the bench. A check wasn’t conducted until last Thursday, when Feinberg ordered sheriff’s officers to run Sumners’ prints. The nationwide lookup did not reveal any arrests, convictions, or outstanding warrants, the judiciary said.

'As a person, she was a very nice person, but the law is the law, you have to take a background check,' Muschal said. 'This is what the council voted on, so be it.'  Muschal, who has been accused by his fellow council members of withholding information he obtained on Sumners, denied he had a hand in forcing the judge to resign.

[Judge] Sumners remains bitter the council demanded she submit to the check. 'No municipal court judge has had to take fingerprints or do a background check, none,' she said.  Sumners still has her law license and says she could return to private practice, but is uncertain if she will remain in Trenton. 'I don’t know,' she said. 'I’m sick of y’all.'
Apparently Judge Sumners is not planning a comeback.  Then again former Vice-President Nixon had something similar to say after losing the 1960 election to John F. Kennedy and the California Gubernatorial race to Jerry Brown's father.  Oh, and Sarah Palin seems to have demonstrated that quitting can be made to work for you.

Choke Unconscious and Rape, That's OK! Advanced Consent Defense (?) Canada

The Canadian Supremes heard an argument over the Court of Appeals decision that a rape defendant can argue that he had "advanced consent" from his victim.  This is the Vacouver Sun account:

"The Supreme Court of Canada was warned Monday against creating a new legal doctrine of 'advance' consent to sex, with several lawyers arguing it would turn back the clock decades to the days of spousal immunity and before the creation of 'no means no' laws that eradicated implied consent as a defence in sexual-assault cases.

The court reserved judgment after hearing almost three hours of arguments on whether on Ottawa woman was legally able to give permission for anal sex before being voluntarily choked unconscious by her partner of eight years.

Several judges questioned where one would draw the line if the court interfered with personal autonomy in the bedroom by imposing criminal sanctions on sexual behaviour if one partner was incapacitated. Would it outlaw, for example, one spouse kissing his or her sleeping partner?  'Do we just trust that the law won't be applied in a ridiculous way?' asked Justice Louise Charron, whose sentiment was echoed by at least two of her colleagues.

The Ontario Crown brought the appeal to the Supreme Court after the province's appeal court ruled earlier this year that a man, identified only as J.A., was not committing sexual assault when he and his on-again off-again partner, K.D., engaged in 'erotic asphyxiation' one night in May 2007. He was convicted at trial of sodomizing with a dildo her against her will, with her hands bound in cables, after she blacked out.  K.D. took her complaint to Ottawa police two months after the alleged assault, after a dispute with her partner over custody of the couple's toddler. She told police in a videotaped statement she never agreed in advance to anal sex, although she backtracked during trial and said they had discussed the idea in the past, long before the night in question.

James Martin, a lawyer for the Attorney General of Canada, accused the Supreme Court of being 'over focused' on the prospect of making it a crime to kiss a sleeping partner.  The real problem, he said, is that permitting advance consent to sex could have dangerous implications for anyone who is incapacitated in any way. What about women who supposedly give permission before passing out drunk? he asked.

'They are totally subjected to the will of the person they are in the company of when they are unconscious,' Martin said.

The court should avoid regressing 30 years to the years of being able to secure spousal immunity against sex assault by arguing 'she's my wife and she consented before,' said Susan Chapman, lawyer for the Womens Legal Education and Action Fund.  'This is a thinly disguised attempt to resurrect spousal immunity and I respectfully request you not to buy into it,' she said.  Several judges appeared nervous at the prospect of validating prior consent, on grounds that unconscious people cannot make decisions on whether they want the sex to continue.

'It seems to me when you've got a situation of unconsciousness, they've waived their right to consent,' said Justice Marshall Rothstein.  The case reaches the Supreme Court almost 12 years after it ruled that there is no such thing as implied consent, upholding Parliament's 1992 changes to the Criminal Code that confirmed "no means no" and put the onus on the initiator of sex to reasonably secure consent.

In written legal arguments, J.A.'s lawyer, Howard Krongold, invoked the words of former prime minister Pierre Trudeau, who in 1968 famously declared that 'there's no place for the state in the bedrooms of the nation . . . what is done in private between adults doesn't concern the Criminal Code.'

J.A.'s conviction was overturned last March when the majority on the Ontario Court of Appeal ruled that K.D. had given her consent by virtue of agreeing to be choked and 'to hold otherwise would be to deprive individuals of their personal autonomy by limiting their ability to make choices about who can touch their body and in what circumstances.'"
While you might reasonably argue that there are problems with the conviction of this defendant in this case, the idea that someone "consents" to being sexually assaulted while unconscious is bizarre at best.  The positive of this argument tortures logic and plain English beyond all meaning. 

As a former attorney representing rape and incest victims, I'd find it nearly inconceivable that "voluntary" consent was given by any woman in this sort of relationship.  But I guess that's my problem.  In this country, at least, a person can not consent to assault, battery, or homicide

Quote of the Day

Waterboarding [i]sn’t torture . . .because the lawyers sa[y] it['s] legal.  I’m not a lawyer.

                                                             George W. Bush
                                                             43d President of the United States

Vail Daily News: Investment Banker May Not Face Felony Hit and Run

Randy Wyrick at the Vail Daily News reports that Martin Joel Erzinger (pic,right), a wealthy 52-year old, investment banker with Smith Barnery, struck a deal to plea bargain requiring him to plead guilty to two misdemeanor traffic counts for his hit and run on bicyclist Dr. Steven Milo a NYC plastic surgeon who was seriously injured. Scott H. Greenfield at the excellent Simple Justice blawg featured a post he enstyled It's Good to Be Rich In Colorado on this story yesterday; and, BikeSnob alluded to the plea bargain in his post, Monday. The "heat" and "outrage" stems from the favoritism ambitious Eagle County (Vail) District Attorney Mark Hurlbut (pic, below left) appears to be showering on the fabulous wealthy banker, Mr. Erzinger. This is the coverage at the New York Times.

District Attorney Hurlbut "explains" the plea deal in a column in this AM's edition of the Vail Daily News.  You can read Hurlbut's rationalizations, er explanation for yourself--but it boils down to a consideration of Mr. Erzinger's ability to "write a check, " huh?  Really!
Hurlbut wants to be a State Senator.  This is the link to his website.

DA Hurlbut is the grandstanding local prosecutor who indicted and lost the rape prosecution of Kobe Bryant in what legal commentators described as preposterous from the outset.  Local voters rewarded Hurlbut by not re-electing him as prosecutor, ergo his run for the State Senate--apparently his effort to find private employment is not going all that well.

Notably, Hurlbut has one other infamous bicycle related-prosecution.  He is the same prosecutor who charged two female mountain bikers with felony fraud over competition in the Leadville 100, an important annual Vail area mountain bike race.  This story is worth reading about because as strange as it sounds it involved nothing more than a registered competitive cyclist unable to participate in the bike race, giving her registration materials to another athlete who did participate, and won the race through her athletic endeavors.  The "crime" of riding under the registration of the non-participating athlete's registration was sufficient for Hurlbut to charge felony fraud! 
What you need to think about is that Hurlbut is operating at the nexus of law, ambition, power, and materialism at the extremes.  His decision to plea bargain the crimes of vehicular assault on a cyclist and fleeing the scene to conceal the criminal offense, to misdemeanors for a wealthy investment banker is astonishing and outrageous.  So it's not surprising that as Hurlbut, himself notes. he has received over 1000 emails "over the weekend."  Apparently Hurlbut was counting on something other than "outrage" when he cut this deal with Mr. Erzinger.

The world is often a hostile and perilous place.  Money helps.

Friday, November 5, 2010

"Life," for Hope Tilley's Husband

Hope Tilley was sick, depressed and despairing according to her letters and pleas to her husband, David (pic), 83.  She begged him to "kill" her not wishing to screw up a suicide.  An Ohio court has sentenced the wheelchair bound octogenarian to 18 Years to Life.  Here's the Columbus Dispatch account:

"For months, Hope Tilley (pic, left) begged her husband to end her depression and despair by killing her in her sleep. In the early hours of Sept. 23, he fulfilled her request and likely will spend the rest of his life in prison for it.

David Tilley, 83, of Guysville, was sentenced to 18 years to life in prison yesterday after pleading guilty to murder. Police responded to a 911 call from Tilley around 1:30 a.m., reporting that his wife had been shot and killed. Tilley, who recently had a leg amputated and is wheelchair-bound, surrendered to police after they arrived at his home.

Story continues belowAdvertisement While investigating the home, police said they found letters and notes written by Hope scattered throughout the house. In them, she described herself as depressed and unable to care for herself and her aging husband.

'She had a fear of killing herself because she thought she might mess it up,' said David McNamara, Tilley's defense attorney.  After the sentencing, McNamara read a statement from Tilley saying he was only following through with his wife's wishes.

'It's really kind of an unfortunate situation,' Athens County Prosecutor David Warren said. 'You're dealing with a man who is 83 years old, and it's unlikely that he'll survive prison.'

Warren said that, in 28 years as a prosecutor, he had never before seen a case like this. 'As a society, we can't have people deciding to end other people's lives, even if the victim consents to it,' he said."
Love story, probably.  Justice?  Maybe.

Thursday, November 4, 2010

He Said, She Said?

A western-Colorado District Attorney is under indictment for exposing himself to 3 women who worked in office over the last few years. Here's an excerpt from the summary by the Associated Press:

"Prosecutors with the state attorney general’s office filed a seven-count complaint against 48-year-old Myrl Serra (pic)Wednesday.  The Daily Sentinel reports that prosecutor Robert Shapiro said that investigators had evidence of one women’s allegations when Serra was arrested and later discovered allegations by two more women.

One of Serra’s attorneys says it’s a 'he-said, she-said' case with no physical evidence.  According to charging documents, Serra is also accused of extortion and having felony unlawful sexual contact sometime in April"
I always like it when I read or see where a defense attorney says, it's a He Said, She Said case as if that exonerates a pervert.  In this case it appears that its a He Said, She Said, She Said, She Said--case.  Good luck with that defense!

No Sharia Law In Oklahoma--Electoral Update

Barbara Hoberock at Tulsa World writes about the anticipated lawsuit challenge to Oklahoma's new ban on Sharia law:

"A lawsuit is expected to be filed Thursday challenging the legality of a state question that bans the use of Shariah law in state court cases. Voters on Tuesday approved State Question 755 with slightly more than 70 percent support. It was among 11 state questions on the general election ballot.

SQ 755 forbids state courts from considering international law or Shariah law when deciding cases. Shariah law is Islamic law. It is based on the Quran and the teachings of Mohammed.

Muneer Awad, executive director of the Oklahoma Chapter of the Council on American-Islamic Relations, said a member of the Muslim community in Oklahoma City is expected to file suit on Thursday in U.S. District Court for the Western District of Oklahoma.  Awad said SQ 755 violates the First Amendment to the U.S. Constitution, adding that it targets a particular religion.

'Disfavoring Islam, or any religion, is a violation of the First Amendment,' Awad said. 'Second, it renders all international treaties invalid in our courts.'

He called the state question ridiculous because Shariah law is not used in Oklahoma courts. Awad said his organization and other groups will hold a press conference Thursday in the Capitol to discuss the lawsuit. He said the person filing the suit did not want to be identified Wednesday.

Rep. Rex Duncan, R-Sand Springs, sponsored the legislation putting SQ 755 on the ballot. He could not be reached for comment Wednesday."
The Tea Party types who support this sort of thing, hate to spend tax money on much, but they do love to generate attorneys fees over these insulting irrational appeals to the baser instincts of the electorate.  After Oklahoma busts the budget spending to defend the indefensible they'll cut some service or another for the poor, imprisoned, handicapped, or elderly.  Brilliant.

3rd Monstrous and Shocking Jury Verdict Against Woman for Sharing 24 Songs on the Internet attributed to the Associated Press, has the jaw-dropping account of the music sharing verdict against a local woman. 

"A federal jury has decided a Minnesota woman owes $1.5 million for sharing 24 songs over the Internet.

[Federal] jurors determined Wednesday that Jammie Thomas-Rasset owes $62,500 per song.   Last year, a federal jury found Thomas-Rasset willfully violated the copyrights on 24 songs. She was ordered to pay $1.92 million in damages, or $80,000 per song.  [Note: there was an earlier trial, 3 jury trials in all. In the first case, reveresed by the jury awarded RIAA a$300,000 + verdict.  That verdict was reversed by the trial judge on his own motion based on an erroneous instruction.]

But Chief U.S. District Judge Michael Davis reduced the verdict to about $54,000 in damages, calling the jury's penalty 'monstrous and shocking.' The Recording Industry Association of America, a trade group representing the major music labels, rejected the reduced penalty, setting up the new trial to determine damages.

The RIAA says in a statement it hopes Thomas-Rasset 'finally accepts responsibility for her actions.'  A message left for Thomas-Rasset's attorney was not immediately returned."
How about that RIAA?  Are we nuts in this country, sometimes?

We are nuts. 

There is a report this morning at the news site for Portland Press Herald (Maine) about a local man who won a $125,000 federal court jury verdict for being beat up by local cops.  Maine law caps damages at $20,000.  While I profess my guilt at comparing apples and oranges, isn't it amazing that a huge corporate lobby organization can get two million dollar jury awards vis-a-vis an individual for sharing 24 songs online, while someone who sustained provable physical injuries against the constabulary has his verdict "cap[ped]" at $20,000?

Anchorage Driver Charged With 10th DUI!

The Anchorage Daily News reports on the local man who was arrested following a hit-skip accident that sent three local residents to the hospital.  That's right, friends, the "at fault" drive has 9 prior DUI convictions.  Here's the ADN account:

"A man who has been convicted of driving under the influence nine times faces new felony charges after a collision Monday that sent three people to hospitals, Anchorage police said today.

Donald Benedix, 46, was charged with felony DUI, driving with his license revoked, and second degree assault and his bail was set at $25,000, said police spokesman Dave Parker.  The accident took place about 7 p.m. on Duben Avenue at its intersection with Muldoon Road in East Anchorage.

Three vehicles were stopped at a red light on Duben facing west.  Benedix, in a blue Ford Expedition, came up behind them and ran into the back vehicle, causing a chain reaction of collisions, with each vehicle ramming into the one in front of it, according to police.

Because the impact was severe, three people in the vehicles that were struck were taken to hospitals, police said. Benedix and a passenger in his vehicle were unhurt.  Police said both Benedix and his passenger tried to flee the scene."
What's it going to take to take this menace off the roads?

Alcohol is cunning, baffling and powerful.  Mr. Bendix is an alcoholic, or as we say a "real alcoholic."  The disease tells this guy that he doesn't have the disease, and that he's OK to drink and drive, and he'll continue to do it until the day he dies.  No excuse. 

But for the sake of all other living and breathing citizens of Alaska and elsewhere, the authorities need to lock this guy up.  Absolutely no human power can cure Mr. Bendix of his alcoholism, but he should not be permitted to continue to present a peril to others.  There is a definition of "insantity" that Mr. Bendix satisfies with his various DUI(s) and I'm sure endless drunk driving--doing the same thing expecting a different result. 

I should know.  While I don't have the DUI's are my tax woes anything other than a manifestation of the same disease with different details?  Probably not. 

There is a solution.  You must recover and there is a demonstrable way to recover. 

Transient Roofer--6th DUI Arrest

Reporter Donna Miller at reports on the transient roofer charged for his 6th DUI.

"Police arrested a 41-year-old Felicity man on his sixth drunken driving charge. James Davidson was driving a red Ford Ranger west on Interstate 90 near Columbia Road when a fellow motorist called police at 3:45 a.m. Oct. 25. The caller said the pickup truck was drifting all over the road at about 45 mph.

According to the police report, Patrolman Matt Porras stopped the truck just west of Crocker Road after seeing it roll outside the marked lanes several times. The driver's eyes were glossy and he admitted to drinking two beers. He also said he didn't have an Ohio driver's license.

Davidson failed roadside sobriety tests and was cuffed. He refused to perform the breath test. A check of Davidson's driving record revealed he had five DUI convictions; four in Tennessee, one in Ohio, Lt. Ray Arcuri said.Westlake patrolmen arrest two intoxicated roofers on Interstate 90. Davidson's passenger, Michael Weaver, was arrested for disorderly conduct while intoxicated, because he was too drunk to care for himself, Patrolman Joshua Frey said.

Weaver said they threw their beer cans away at a rest stop. Police found a Sunny D container in the truck that contained a mixture of juice and alcohol.

Davidson is charged with felony DUI and was cited for driving without a license, failing to wear a seat belt and driving outside of marked lanes.  Weaver and Davidson said they were driving from the Dayton area to Cleveland to start a roofing job."
The Great Lakes shoreline is dotted with many beautiful and old American houses often protected by gorgeous slate roofs.   I've seen them. 

While the Great Lakes region does not suffer anything near the horrific tornado alley weather, seasonal storms sometimes bring old trees down on the homes wrecking roofs.  The region frequently experiences an influx of "storm chaser" contractors and my friends tell me that this last autumn brought a lot of these contractors and their workers into the region often via I-90 a coast-to-coast highway.  While you will find alcoholics and drug addicts in every calling, with these contractors you get alcoholics and drug addicts on wheels. 

When I was a teenager, an older female cousin dated one of these guys, an alcoholic "drywall-er." He hired me as a helper, which most consisted of sitting in a bar with him until he was too drunk to work. When he did work he was an "artist," in fact I'm certain I never again saw anyone who could do what he did with dry wall and a hammer.  Remarkable.

He disappeared with the seasons.

Tax Preparer Refund Scams

Tracey Dalzell Walsh's story at the Courthouse News Service this morning has me recalling a story dating to my first year in law practice involving a scamming tax preparer who ripped off client refunds and more.  It's a cautionary tale, but first the CNS story of the scamming Montgomery tax preparer:

"A [Montgomery, Ala.] woman claims her tax preparer stole her $2,000 federal refund and told her the IRS had "kept" the money, then stole a $5,178 refund the next year though she hadn't even hired him, and when she confronted him he tried to bribe her with 'a few hundred dollars.'

Lillie Patton sued Jack Jones and his Jack Jones Income Tax Service in Federal Court. She says she hired Jones to file 2008 tax returns for her and her dependent son, co-plaintiff James Searight.  Patton says Jones told her she qualified for a $2,000 refund under Earned Income Tax Credits, but she never got it, 'because' according to Jones, 'the IRS 'kept' the same.'

The next year she went to another tax preparer, who eventually told her that her return had been rejected because her son 'had independently filed his own income tax return.'

But he hadn't.

So Patton went to the IRS office, where she was informed that 'Jack with Jack Jones Income Tax' had filed the return as a 'paid preparer.'

But he wasn't.

Nonetheless, according to the complaint, Jones had filed a return for Searight, calling him a head of household with two dependents. Patton says the IRS issued a refund of $5,178, and sent it to the address of Jones's employee Dorothy McCrae, now a defendant.  Patton says her son confronted Jones about his filing James's federal tax return with false information, without his knowledge, consent or authorization.

'Jack was unable to provide James with any explanation other than 'Our computer system is down so call back tomorrow,' according to the complaint. 'After James' repeated phone calls and visits demanding an explanation, Jack promised James that, in return for James refraining from filing a police report or contacting any tax agencies, Jack would pay James a 'few hundred dollars'. James declined Jack's offer,' according to the complaint.

Patton says Jones defrauded her and her son and the U.S. government. She sued Jones himself and his Jack Jones Enterprises, Jack Jones Income Tax Service and J and J Fast Tax Service, and McCrae.

Now, Patton says, 'James and Lillie live in fear that the IRS ... will demand of them the refunds received unlawfully and without their authorization.'  They seek punitive damages for fraud, RICO fraud and privacy invasion."
When I was a young lawyer a bunch of local manufacturing plant employees came to see me about a tax preparer who not only ripped off their refunds and lots more.  This thief learned via 1099s what these blue collar guys had on deposit in ordinary savings.  He convinced my clients to invest in his Montana gold mines, providing these guys with not much more than a story.  He must have been pretty convincing because these guys fell hard for the scam.  Even after he filed a Chapter 7 bankruptcy they still thought I could collect against his gold mines in Montana. 

Even after I told them that gold mines did not exist, even when the bankruptcy trustee told them that gold mines did not exist, and even after the bankruptcy Judge told them that gold mines did not exist--they believed! 

This told me quite a bit about the gullibility and vulnerability of clients.   These guys weren't stupid, but they were pre-disposed to believe this guys wild tales of investment grade gold mines that they had never seen.  My experience and research tells me that this mis-placed faith in what was simply a bottom-shelf Ponzi scheme sprang from personal investment, neuro-biology, and psychology.  In each case this con-artist sold these guys on what they wanted to believe and even after the scam was revealed the ingrained belief retained power.   As an aside I think this same process may be at work with Orly Taitz and the birthers who believe President Obama is Kenyan, or whatever they believe.

The IRS has a program dealing with Questionable Refund Scams which you can access at 

Wednesday, November 3, 2010

Bad Lawyer to Begin 5 Months on November 15

This AM I placed the phone call to the US Marshal Service to begin the process of "surrender" to federal custody.  I am to serve 5 month term of incarceration as part of the sentence on my "attempted tax evasion" conviction. 

Being a 56-year old, white collar criminal with arthritis, diabetes, alcoholism (in remission), and a history of bi-polar illness it will be an interesting process which I hope to document for later journalization.  As I have said many times since the inception of this blawg--learn from my example.  Do not do what I did.  My daughter will give birth to my first Grandchild in my absence.  Somehow, my wife with the support of friends and family will manage our home, and, our two teens, while continuing to be the Blond Super Lawyer. 

Since I started to write this post, I received a call back from the US Marshal service.  I am reporting to the US Marshal's Service locally on November 15, 2010 to begin my 5 month sentence in custody.  I may or may not sporadically update the Bad Lawyer blawg depending on all the things I don't know and can't predict.

Please keep me and my family in your prayers.  Thanks.

PaySource IRS Fraud, Wow!

Dayton Daily News reporter, Lou Greico has the story on the massive fraud by officers of PaySource payroll services which is located in Dayton--with the arrest of Paysource's owner, Robert Sacco, upon his return to the United States from Costa Rica.   Greico's account is excerpted below:

The former owner and chairman of PaySource Inc. who was indicted on 67 federal counts was released on $50,000 bond Tuesday, one day after his arrest on 67 federal felony counts.   He was charged with defrauding the Internal Revenue Service of $26.7 million by filing false reports.   Robert R. Sacco, 59, formerly lived in Huber Heights and now lives in Orlando, Fla. IRS and customs agents arrested him Monday at Orlando International Airport as he returned from a vacation in Costa Rica.

'The amount is enough to be staggering,' said Cincinnati attorney Howard L. Richshafer, a former IRS agent. A federal grand jury indicted Sacco on Oct. 26, but the indictment remained under seal until late last week. According to the indictment, Sacco defrauded the government by withholding money to pay federal employment taxes from employees’ paychecks, then keeping the money.

The company’s CEO, Charles C. Painter, pleaded guilty in February to one count of aiding the preparation of a false federal employment tax return. He is to be sentenced Dec. 16 and faces a maximum of three years in prison. Federal authorities said he avoided paying $7 million in taxes during the second half of 2007. Painter is identified as an 'unindicted co-conspirator' in Sacco’s indictment as is 'T.G., a person whose identity is known to the Grand Jury,' and who 'previously served as PaySource’s Chief Financial Officer.'

Directing his co-conspirators to file false IRS documents, Sacco was able to avoid paying federal employment taxes owed by PaySource between October 2007 and April 2009, the indictment states.
Howard L. Richshafer, an attorney and former IRS agent, said that the IRS often files civil proceedings — not criminal — with the goal of getting the money paid. But with allegations of false documents and a huge amount of money, it probably made the government go a different way, he said. Richshafer said it has been his experience that companies themselves, rather than payroll service operators like PaySource Inc., fall behind in forwarding employee withholding funds to the IRS. But, if the company gives the payroll service operator control over the payroll accounts, there could be a temptation to keep money that legally should be sent to the IRS, he said.

'As the economy has gotten poorer, since 2008, I’ve seen more and more companies having this sort of problem,' he said."

It’s potentially a double-whammy problem for the government, because employees will use their W-2 forms to get refunds on amounts that were never paid in the first place, he said."
When you are a paycheck employee of a company that utilizes a payroll service, you assume everything is on the up and up.  This is the second of two stories like this I've come across in the last couple of weeks.  The second story out of Sacramento was far too complicated and involved too many plot points to talk about. 

But this should tell you something about how difficult it is trying to run an office.  People utilize companies like this because it is too complicated and too involved for the ordinary lawyer, or other professional.  You think you are buying peace of mind, now you can think again.  The question is, for those companies and for those offices who used this service--are they off the hook?  Are the employees who obtained refunds based on fraudulent W-2s off the hook?  There are a lot of ripples left in the wake of this sinking criminal enterprise.

Elections Matter

Nikki Haley, one of Sarah Palin's "Mamma Grizzly(s)" won her election to be governor of North Carolina.  This election is striking for what it says about the quality of candidates for public office which I believe would not have been electable in prior years.  Not that this new trend of looking past what in prior election cycles would have been disqualifiers--it will be interesting to see if voters will be happy with these new faces over the long haul.  I mean, clearly the romance with Barack Obama, thudded to a stop in short order--what about the Tea Party new faces?

This is from the Ames Alexander's Charlotte Observer's account of the election of Nikki Haley:

"Nikki Haley, the tea party favorite who overcame controversy and rose to national prominence this year, was elected South Carolina's first female governor Tuesday.  With more than 90 percent of precincts reporting, the rising Republican star had collected 52 percent of the vote. Democratic state senator Vincent Sheheen had 46 percent, according to the New York Times. Sheheen congratulated Haley Tuesday night, saying the race had been 'oh, oh, so close.'

In a state that has elected only white males to the Governor's Mansion, the former state lawmaker's election is historic.  Haley, the daughter of Sikh immigrants, will be the state's first nonwhite governor - and the nation's second Indian-American governor [ . . . ]

Polls showed that Haley had lost some of her edge during the final weeks of her campaign. But running in a conservative state during a difficult year for Democrats, Sheheen faced an uphill fight.  Haley will succeed Mark Sanford, a Republican whose final 18 months in office were marred by revelations of an affair with an Argentine woman and the breakup of his marriage.

Haley has championed causes popular with the tea party movement. She has vowed to fight the federal health care reform law and has said she would advocate an immigration law similar to the one in Arizona that was struck down by a federal judge.

She has also proposed eliminating South Carolina's corporate income tax and taking other steps to make the state more friendly to business.  She advocates privatizing some government functions such as public school transportation. She also wants corporations to help struggling libraries.

Her campaign successfully fought off potentially damaging allegations.[:]

Two men have said they had extramarital affairs with her - claims she has denied.

Records show that Haley, a 38-year-old former clothing store owner, has been repeatedly late paying her income taxes since 2003. She and her husband have paid more than $4,000 in fines.

Sheheen, a Camden attorney who has served for 10 years in the S.C. General Assembly, has contended that Haley accomplished little in the legislature. During her six years in the state House, Haley was able to pass one bill: It allowed unlicensed people in beauty shops to shampoo hair."
In OurState a common pleas Judge ensnared in an OurCounty scandal and under federal indictment narrowly lost her reelection bid.  The county government Commissioner system which was wholly-owned by one political party, many of whom are now convicted felons--was transformed by disgusted voters in elections last year.   Last night the irate local voters then rewarded the same old political party with the lion's share of the new elected positions.  Huh? 

In the rest of OurState, almost all other elected positions including all of the OurState Supreme Court are now in the hands of the other political party, the party that receives its financial support from the Chambers of Commerce, corporations, and Fox News. 

Yes, in OurState the elites are dead, long live the elites!

Macomb County Prosecutor--Update

On Monday, the Bad Lawyer brought you the story of the Detroit-area prosecutor who went postal on the voicemail of a local candidate.  I provided you a link to the local news account with the mp.3 of the voicemail. 

The Detroit Free Press is reporting that Macomb County prosecutor, Eric Smith (pic), has now apologized for his "language," essentially the repeated threatening use of the "f-word."  He may face misdemeanor criminal charges, and certainly disciplinary charges as I speculated.  Here's the update:

"The Macomb County Republican Party is preparing a complaint for the state Attorney General's Office, with audio recording, of a profane and allegedly threatening message left Saturday by Macomb County Prosecutor Eric Smith to County Commission candidate James Perna.  Perna is running against Smith's brother, Bob Smith Jr., for the 12th District seat.

Party Chairman Jared Maynard said Monday the party also is preparing to file an attorney grievance complaint. If a lawyer violates a criminal law, the Attorney Grievance Commission has a basis for bringing a formal complaint against the attorney with the Attorney Discipline Board, said Larry Dubin, professor at University of Detroit Mercy School of Law. If there is a conviction, he said, the commission can rely upon that conviction. If not, the commission can independently prove that a criminal law was violated.

Michigan State Police Capt. Harold Love said his agency will follow up on a complaint made by Perna with State Police. If charges are sought, the matter could be referred to a special prosecutor or the Attorney General's Office, said Joy Yearout, spokeswoman for the office.

Eric Smith admitted that he left a profane message on Perna's voice mail, in which he called Perna a liar and said that  'we are going to (expletive) bury you' over a negative campaign mailer sent by the county Republican Party.  Smith said he regretted leaving the message and apologized for his language.

Maynard said he believes Smith is 'absolutely guilty'  of violating the state law called malicious use of service provided by telecommunications service provider.  According to the law, 'a person is guilty of a misdemeanor who maliciously uses any service provided by a telecommunications service provider with intent to terrorize, frighten, intimidate, threaten, harass, molest or annoy another person.'"
The incredible arrogance of these County prosecutors needs to be circumscribed.  One hopes that the the voters in Macomb County will take appropriate action, unlikely but one can hope.

Brett Howard's Bread of Shame

The great Louisville Courier-Journal legal affairs reporter Andrew Wolfson has the account of the mortgage broker Brett Howard's credit spree/identity theft crimes in today's CJ.  Here's an excerpt from Wolfson's story which like all of Wolfson's stories is worth checking out:

"Handsome, charming and effervescent, Brett Howard had it all going for him as a mortgage broker for Louisville's HomeQuest Mortgage Network.In one month alone last year, he made $20,000 at the company in Middletown, according to one of its former partners. Howard drove a BMW and lived in a designer-decorated Old Louisville home with a 'casual chic environment,' the Voice-Tribune of St. Matthews wrote in September in a story about his housewarming party.

But Howard wanted more — and he allegedly took it, according to police and court records.

Using credit card numbers he allegedly stole from 19 clients, Howard, 21, embarked on a luxury goods spending spree last year, according to an indictment against him in U.S. District Court in Louisville.

According to court papers and Louisville Metro Police Detective Steve Glauber, Howard bought a $2,900 suit at British Custom Tailors, an Apple computer and Godiva chocolates. He bought $700 worth of clothes from Von Maur, $900 worth of shoes from and ran up a $2,100 bill at one of the fashionable W hotels.

Howard flew himself and a significant other to New York, bought tickets for a Broadway show and shopped at Saks Fifth Avenue. He even allegedly used one of the purloined card numbers to make a $250 donation to the Louisville AIDS Walk, according to Glauber and court records.

'He was a piece of work,' Glauber said in an interview.  But the bill is coming due.

Indicted on 19 counts of aggravated identify theft and 19 counts of fraud, Howard is set to enter a guilty plea Nov. 15 in U.S. District Court, where he faces a mandatory minimum penalty of two years in prison.  Howard's friends and acquaintances describe him as engaging but self-centered.

'He always had a very, very inflated sense of self,' said Justin Chelf, an Internet entrepreneur who attended Howard's party in September. 'He wanted it all, and he wanted it fast.'

Glauber said Howard acknowledged that he was living beyond his means when he was arrested last November — wearing one of the custom suits allegedly purchased with a stolen credit card number.  'He looked like a million bucks,' Glauber said.

HomeQuest, an on-line mortgage company, says on its website that it maintains 'appropriate security measures' to keep information it collects from clients private and that it hires 'only the most qualified mortgage consultants that are dedicated to our mission of putting each client's best interests above their own.'

CEO Jerry Van Slavens and former managing partner Paul Knopf said Howard was following standard procedures when he asked loan applicants for their credit card numbers to pay for third-party appraisals of their homes that are required under federal mortgage law.  But from September through November of last year, according to the indictment, Howard allegedly used those numbers to buy 'luxury extravagant type items,' Glauber said, running up total charges of $16,444.

Some of the victims were Howard's own friends, who had come to him for mortgages or to refinance their homes, said Chelf, who ran for the Louisville Metro Council on Tuesday in District 19.

A taste for sushi

The scheme was detected when a Laurel County schoolteacher, Karen Jones, who was one of Howard's clients, noticed a charge on her credit card for sushi, along with the custom-tailored clothing.

'I don't eat that,' Jones said in an interview.

Howard, by contrast, says on his Facebook page that sushi is the one food he could eat 'every day for two weeks and not get sick of.'

Jones said she had visited Louisville when the credit card charges were incurred but that her budget — her husband is a state park ranger — limits her shopping to 'J.C. Penney and maybe the Gap on a good day.' Another HomeQuest client noticed that Broadway show tickets had been charged to his card, according to Knopf, who said he normally wouldn't have suspected Howard of wrongdoing 'in a million years' because he seemed 'very innocent.'  But Knopf said the complaint about the tickets aroused his suspicion because he knew Howard had requested time off to go to New York in a few weeks.

Knopf also said he called the theater ticket broker, who said Howard had listed his college e-mail address when the tickets were purchased.

Howard, who grew up in New Albany, told the Voice-Tribune that he was a recent transplant from Myrtle Beach, S.C., and a student at the University of Louisville.

On his Facebook page, he said he has five televisions in his house on South Brook Street. Responding to the theoretical question, 'Would you allow one of your little fingers to be cut off for $200,000?' he says, 'Honestly, I think I would.'"
This is a classic case of the concept of Bread of Shame.  It will be interesting to see how Mr. Howard's life develops.  Certainly it does not sound like there is a strong moral code at work.  It also sounds like there is a profound emotional disorder that is sometimes labeled narcissism.  Wolfson notes in another part of his story about this character that while at school Howard penned an essay on "trust" by which Howard seems to have meant the loyalty of others.  He does not appear to understand the concept of "trust."

On the other hand, he is a young man, and I have seen amazing transformations in my life and the lives of others.  Miracles do occur.

Tuesday, November 2, 2010

Oral Argument Prognostication, um Not!

A terrific story at the Houston Chronicle website caught my interest because of its coverage of the Oral Argument over the "honest services" theory used to convict former Enron "smartest guy" Jeffrey Skilling was being assessed by the Fifth Circuit in light of the US  Supreme Court decision declaring this provision of the US criminal code unconstitutional. 

In essence, Skilling's counsel, Daniel Petrocelli, (former plaintiffs' counsel in the OJ Simpson "wrongful death" civil lawsuit--) argued that the heart of the criminal convictions of Skilling, was the "honest services" allegations thereby tainting the entire prosecution of the former Enron exec.  Skillings argues that all remaining convictions should be dismissed, obviously the government disagrees.  Reporter Tom Fowler's story was interesting because it perfectly captured the absurdity of predicting appellate court decisions based on questions asked by the panel judges:

"A three-judge appeals court panel grilled attorneys for former Enron CEO Jeff Skilling and the government on Monday, trying to decide whether to throw out or order new trials on any of Skilling's 19 convictions.  His defense lawyer, Daniel Petrocelli, argued the U.S. Supreme Court's decision that the government was wrong to use a particular legal theory in charging Skilling with conspiracy means that charge and the remaining 18 should be thrown out.

The government contends that a rational jury would have convicted even without the faulty theory that he deprived Enron of his 'honest services,' because evidence overwhelmingly supported Skilling's guilt.  But the hearing, in which each side had 30 minutes to provide oral arguments, was more about the judges' questions than the lawyers' answers.

Judge Edward Prado asked if it would make more sense for the federal district court where Skilling was tried in 2006 to decide the issues raised by the Supreme Court decision.  Determining if the 'honest services' theory tainted the other charges would involve digging into the voluminous details of the five-month trial, Prado said.  Petrocelli said nothing would prevent the appeals court from sending the issue to the trial judge, but that the question is one of law.

'The court isn't being asked to act as a 13th juror,' or guess what the original jury was thinking, Petrocelli said. Rather it needs to look at the court record and determine if a 'reasonable jury' could find Skilling not guilty based on the evidence.

When the panel posed the same question to Assistant U.S. Attorney Doug Wilson, who argued for the government, he said the 5th Circuit would eventually have to tackle the issues anyway because whatever the district court decided would be appealed.

In its ruling on the case, the Supreme Court said 'honest services' prosecutions must involve bribery or kickbacks, and Skilling wasn't accused of those offenses.

The high court left it to the 5th Circuit to determine whether the error was harmful enough to require dismissal or retrial of any of Skilling's convictions.  The burden of proof before the appeals court lies with the government, which argued the honest services element was just one of several offered to the jury.

Judges questioned Wilson when he said honest services played a minor role in the case, but Wilson countered that 'honest services'  was mentioned just once in government closing arguments and not at all during Skilling's closing arguments. 'Every transaction, every representation made to the public was meant to deceive the investing public by propping up the share price,' Wilson argued. The evidence against Skilling was overwhelming, Wilson said. The judges asked Wilson why the jury deliberated for five days if evidence was overwhelming.  'Five days is not very long for a five-month trial,' Wilson said, noting 'this was a very careful jury.'

More than a dozen Skilling supporters, including his wife, children and a brother, attended the hearing. FBI agents and other attorneys involved in the case also helped fill much of the courtroom. Skilling, serving a 24-year sentence in a federal prison near Denver, did not attend.

The panel gave no indication of when it will rule on the case. The 5th Circuit took six months after hearing arguments to make a decision on its first go-around with the Skilling appeal.

'There's a very lengthy record that we think is very favorable to us,' Petrocelli said after the hearing. 'We have no interest in a quick decision.'

Although courtroom observers often try to guess which way a court is leaning based on questions the judges ask lawyers, such handicapping seldom is successful.

'You've got a better chance of betting right on all the ponies at Aqueduct than you do of predicting how a panel of judges will go,' said Brian Wice, a Houston attorney who specializes in appellate issues. 'Judges sometimes use their questions to test the limits of a party's arguments or to tease out answers to questions others on the panel have about an issue [ . . . ] I've walked out of arguments where, based on the questions, I think I was beaten like a mule and I've won,' Wice said. 'And there are other times where I thought the questions meant I won, and I lost.'"
Just before the OurState Supreme Court decided I lacked the character and fitness to continue to practice law, I was admitted to a federal Circuit Court of Appeals where I defended OurTown manufacturer sued over a decision not to hire a female at one of their foundries.   The oral argument was terrific, largely because my opponent was rude, inept, and unprepared.  The panel threw me softballs and excoriated opposing counsel as I defended a grant of summary judgment and he sought an order overturning the veteran District Judge famous for her probity in the area of employment law.

At the conclusion of the Oral Argument, my opponent turned to me and said, "Well, I lost that one!" 

He was wrong.  When the opinion was finally published many months later the Circuit Court of Appeals held, 2-1 (with an angry dissent,) for the plaintiff/appellant.  No one, who heard this Oral Argument could have guessed the outcome.

Sarah Palin Quote--What Does This Mean?

"I suppose I could play their immature, unprofessional, waste-of-time game, too, by claiming these reporters and politicos are homophobe, child molesting, tax evading, anti-dentite, puppy-kicking, chain smoking porn producers … really, they are. … I've seen it myself … but I'll only give you the information off-the-record, on deep, deep background; attribute these 'facts' to an 'anonymous source' and I'll give you more"

Sarah Palin in an email to the Daily Caller (really, I'm not kidding)

White Collar Criminal Plea Deals

Reporter David Hammer at the Times-Picayune has this look at the plea deal by a former New Orleans technology official who had been recruited from the public sector.  You might ask: why does some one plead guilty when they might initially be convinced that they have valid defenses to white collar criminal charges?  Well, for one thing, being guilty is a significant motivator; but, there are other considerations as this story clearly reminds us:

"Former New Orleans city technology chief Greg Meffert, who barged into City Hall from the private sector eight years ago and quickly established himself as the brash face of reform in Mayor Ray Nagin's nascent administration, could muster only a whisper in federal court Monday as he pleaded guilty to taking kickbacks from a former city vendor.
Meffert pleaded guilty to one count of conspiracy to commit wire fraud and bribery and one count of filing a false income tax return. Asked what had precipitated the change of heart from Meffert after he had dug in his heels for a trial set to start in January, Meffert's lawyer Randy Smith said: 'It is what it is. Sometimes a man just has to step up. He does have two kids to consider that he and his wife are trying to raise in San Antonio. He is a humbled man.' [emphasis supplied]

As part of his plea, Meffert signed a statement admitting he steered roughly $4 million in no-bid city work to city contractor Mark St. Pierre -- who had once worked for Meffert in the private sector -- and accepted more than $860,000 in bribes and kickbacks in return.Meffert also "agreed to fully cooperate and provide truthful testimony when called upon," U.S. Attorney Jim Letten said.

Meffert's wife, Linda, who was also charged in the conspiracy, has agreed to complete a pretrial diversion program. She will remain free on bail, allowing her to continue raising the couple's two teenagers; the charges against her will be dropped, provided she joins her husband in giving information to prosecutors, Letten said. [emphasis supplied]

It starts with a yacht

Meffert's business dealings first came under scrutiny in 2006, when The Times-Picayune reported that Meffert often used, and claimed to own, a 57-foot yacht, the Silicon Bayou, that public records showed was actually the property of St. Pierre and other technology employees. The city's inspector general issued a scathing report on the city's purchase and oversight of a system of crime cameras, many of which were provided by a St. Pierre-owned firm.   That report helped spark the federal investigation, Letten said, praising the city office for its help. About six months after the inspector general's investigation was made public, a grand jury charged Meffert, his wife and St. Pierre with conspiracy, bribery and public corruption in a sweeping 63-count federal indictment.

'It is a new day in New Orleans,' said inspector general Ed Quatrevaux, who joined Letten on Monday at a news conference announcing the plea deal.  Meffert, dressed in a dark suit, entered his plea before U.S. District Judge Eldon Fallon. When asked by Fallon if he was pleading guilty because he was in fact guilty, Meffert said in a barely audible voice:  'Yes, sir.'

Mark St. Pierre's lawyer, Eddie Castaing, said, 'It's apparent that Greg Meffert decided to enter this plea to protect his wife from facing a criminal trial, and he did the honorable thing in admitting to these charges so she could be set free to take care of their children.'"
It's probably too easy to not have a whit of sympathy for Greg Meffert, after all, he's just another hustler. Then again, there is an arbitrary and capricious quality in White Collar prosecutions.  We laud, honor, esteem successful scoundrels who are able to turn networking, and contacts into business.  We claim to want to attract successful business and entrepreneurial types into public service.  Then we act astonished when these men and women continue their entrepreneurial practices and lifestyles while "in office." 

I am not saying that happened in the Meffert prosecution.  I know less than nothing about the underlying story. What I am saying is that it seem to me that the rules have changed.  As a young man I sat in endless seminars encouraging me to "network," don't buy into "limitations," and so forth.  When I became a lawyer, we were in a previous recession. An Associate Justice of the OurState Supreme Court speaking at our swearing in, exhorted we newly-minted young lawyers to go out there and just do it.  He told us to be fearless, to invent our way as we went along, be "game changers." Um, didn't work for me. 

So the music stopped and some got a seat, some didn't.  Some paid, some paid all.

Obviously, what I related to was the familial peril Meffert found himself in as it related to the prosecution of his wife and the subsequent impact upon his children.  Did Meffert create the peril, seems so.  But, I relate.  No excuses, I relate.  No yacht, but I relate. 

Hennepin County Attorney-Pimp, uh, That's a Disbarment

The is carrying a follow-up to a story I covered over the sumer.  A Hennepin County (Minneapolis) attorney has relinquished his license to practice law after his arrrest on charges related to running a prostitution ring.  This is the link to the Star Tribune-AP story.

John Paul St. Marie, 66, ran the so-called "nice guy" prostitution operation.  St. Marie's "Johns" were supposedly "clean and affluent."  St. Marie faces 6 felony counts in connection with his non-governmental activities. 

MLB Star Jim Leyritz Drunk Driving/Vehicular Homicide Trial Underway in Florida

Jim Leyritz, a MLB legend, killed Fredia Ann Veitch, 30, in a drunk driving collision after a night of drinking to celebrate his 44th birthday at the Fout Lauderdale Blue Martini.  His blood alcohol level tested at .18 after some distracted driving he "t-boned" the SUV driven by Ms. Veitch who was ejected from her car into the roadway.  Leyritz' DUI/vehicular homicide trial in underway in Florida.  This is the link to the Sun Sentinel account of the trial.  There is also a good deal of coverage at the NY Post and Daily News websites.  Leyritz, a star, catcher hit a "game-changing" home run on behalf of the NY Yankees in the 1996 World Series. 

If convicted of the charges, Leyritz faces a 4-15-year prison sentence.

Monday, November 1, 2010

Young Lawyer Goes to Jail, 6-18 Mos for DUI Fatality

Young Stroudsburg lawyer, Robert Kidwell (pic) drove drunk and killed a Bushkill, Pennsylvania man in the early hours of January 10, 2009.  This afternoon it is reported that Kidwell was sentenced to 6-18 months in the Monroe County Correctional facility.  His blood alcohol was .13 at the time that he cut down twenty-two year old Daniel Gallagher. 

This is the link to the story at the Poconos Record.  Presumably, Mr. Kidwell who was a 2007 graudate of Villanova Law School will sustain a significant disciplinary sanction in conjunction with his vehicular homicide conviction.   

I was at an AA meeting over the weekend at which the discussion centered on the suggestion sometimes heard that if the prospective AA participant doesn't truly believe he or she "qualifies" for AA membership they should go back out and try some "controlled social drinking."  A very wise person at theis AA meeting (not me) observed that outcomes such as the one reported concerning Mr. Kidwell and his victim Mr. Gallagher, are often the tragic consequence of just such experiments in "controlled drinking."  An article at the Lancet that I read in summary this AM analyzes research that demonstrates that alcohol is by far the most dangerous of all recreational drugs (exceeding cocaine, heroin, ecstasy, meth) in terms of every parameter of individual and social costs.  Career, lives, health, crime, safety,  .  .  .

Call Pavilack Today!

Reporter David Wren at the Myrtle Beach Sun reports on the local personal injury lawyer caught in Titanic debt.  The lawyer Harry Pavilack is also one of the regions big time advertisers.  He is reportedly causing major headaches for creditors and bankruptcy examiners trying to assess what remains of assets.  In one remarkable moment described by reporter Wren, Pavilack who was being examined by the bankruptcy investigator in Pavilack's office.  Attorney Pavilack goes "off the record" to collect nearly a million dollars he hid in an office closet.

Wren's original story is quite detailed and is presented below, in excerpt:

"Harry Pavilack - the Myrtle Beach lawyer perhaps best-known for his television commercials and billboards urging potential clients to Call Pavilack Today!' - is $72.5 million in debt and is facing allegations in bankruptcy court that he could be hoarding cash and hiding assets from creditors, court records show. The allegations were raised in a report last week by George DuRant, a court-appointed examiner from Columbia who said Pavilack has been taking cash out of his corporations, transferring some of his assets to relatives and friends and opening bank accounts in Peru.

Pavilack, 70, initially told The Sun News he would schedule an interview through his lawyer, William McCarthy of Columbia. Pavilack did not schedule the interview and McCarthy did not respond to requests for comment.  Court records show a Myrtle Beach attorney well known for his television commercials and highway billboards is almost $73 million in debt. 
[Bankruptcy examiner] DuRant, in his report, said Pavilack has been conducting mainly cash transactions since February 'in order to frustrate the collection efforts of a creditor.'

That creditor is Shaul and Meir Levy, the owners of the Wings beachwear stores, according to court records. The Levys obtained a $2.5 million judgment against Pavilack and others this year over a failed condominium project.  Pavilack - who has refused to say how much cash he has on hand, according to DuRant's report - handed the examiner three stashes of cash totaling $1.1 million this month after another court-appointed investigator stressed to Pavilack the importance of disclosing assets.

Pavilack retrieved one of those stashes - totaling $994,400 - from the closet in his law office, DuRant said. DuRant told The Sun News that he did not want to comment on his investigation. 'The report will have to speak for itself,' he said.  In his report, DuRant said Pavilack's financial records are in such disarray that it might be impossible to determine how much money exists and where it all is.

Among the problems, according to DuRant's review of 39 general ledgers for Pavilack's businesses: Deposits and withdrawals are incomplete, inaccurate and lack documentation; asset transfers between Pavilack and the entities he controls are poorly documented and remain unaccounted for; real estate transfers are not recorded; and at least $3 million in certificates of deposit have been unaccounted for since the end of 2007. In addition, a court-appointed accountant said she is not able to complete Pavilack's 2009 personal tax return because 'his income and expenses could not be determined,' the report states.  'At this stage, it is impossible for the examiner to determine if the cash turned over to date is all or only a portion of the total amount of cash held by [Pavilack],' DuRant said in his report.

'Unfortunately, the trail for [Pavilack's] cash transactions is cold, and accurately reconstructing the trail from [Pavilack's] memory and from third parties seems a pipe dream,' DuRant stated.
Pavilack - a W.Va. native who grew up in Pittsburgh and earned his law degree in 1966 at the University of South Carolina - initially estimated that he had assets totaling $50,000 or less, according to a bankruptcy court petition he filed in September.  Less than two months later - after disclosing at least some of the cash he was holding to the examiner - Pavilack filed another court document showing about $8.9 million in assets.

Those assets include a condominium in New York City; two homes in Myrtle Beach, one along the oceanfront and another along the Intracoastal Waterway; and eight automobiles, including three Bentleys and a Lexus. Although Pavilack's vocation was the law, property records and court documents show he also was one of this area's most prolific real estate investors.

Pavilack says in court documents that he owes about $72.5 million to creditors, most of it mortgages and personal guaranties on real estate loans. DuRant estimates that Pavilack has created more than 60 corporations that own more than 400 homes, commercial buildings and real estate parcels in at least six states.  Some of those corporations are empty shells that have no purpose other than to provide an entity for a bank account, DuRant said." [ . . . ]
Do not screw around with the bankruptcy court.  Pavilack's retrieval of the $994K from his closet during his bankruptcy deposition is documented acknowledgement of fraud.  He's screwed.

By the way, my take on this story is that Pavilack was running a classic "legal services brokerage," while actually trying to make and protect his real estate fortune.  Things must have been rockin' for him for a long time--that is, until the real estate market collapsed.  I wonder what culpability the creditors had in terms of due diligence prior to making he loans that provided the structure for this house of cards?

Another Drunk Mom, Sentenced for Child's DUI Death

Carmen Huertas (pic) received 4 1/2-year sentence for the DUI death of a 4-year old child (not her daughter) consistent with the recommendation of the child's father according to a story at the New York Daily News

As I've said on many occasions, Ms. Huertas and drunk drivers like her, actually receive life sentence--this is not hyperbole.  If you have a conscience, you don't shake your responsibility for the harm you drunkenly did others, just because you were sentenced for the criminal offense.

According to the Daily News story:

"[Huertas] eyes red-rimmed with tears, [ . . .] agreed she deserved punishment.

'I am not a monster,' the mother of three said while members of her family sobbed. 'I am a loving mother who made a horrible decision that caused the death of a wonderful child. I know that I must be punished.'" 

Huertas, own daughter was injured in the crash when she lost control of her speeding van on a curve.

No Sharia Law In Oklahoma

The Los Angeles Times has this remarkable report of a Oklahoma ballot measure which if passed will enact a ban on Islamic Sharia Law practices.  The LAT piece notes that Sharia Law practices don't exist in Oklahoma, but hey who's to say that a good preemptive measure won't preserve freedom and liberty over the long haul, I guess.

News factoids like to cite to ridiculous archaic laws and ordinances that are still on the book in places in places around the US, this is a presumptively absurd.

Negligent 4-Year Olds

The story of the 4-year old bicyclist (on training wheels) being sued for knocking over a senior is all over the Internets and while I prefer to be the first Blawgger to discuss a legal case I find at local news websites, this now-chewed story deserves a remark. 

You can read Professor Eugene Volokh left his usual insights at the libertarian blawg Volokh Conspiracy, I have a slightly different take.

These "outrageous" stories are noxious.  What is alleged to have happened was a non-negligent 87-year old woman, on the sidewalk in front of her her residence--was knocked down suffering a hip fracture which required hospitalization and surgery.  The question is who should bear the burden of loss as a result of a serious personal injury?  Tort law provides an ancient procedure for obtaining an answer yet we get lost in the seeming absurdity of a lawsuit vis-a-vis a little girl. 

In reality, while the named child is the putative party, the representative for the elderly victim is bringing an insurance claim.  An insurance policy, generally speaking, a "homeowners' insurance policies" provide coverage for the "insured" youngster for persons including innocent elderly ladies trying to walk up the sidewalk. 

Yes, of course, the insurance company's representatives want you to be shocked, disturbed and outraged that a lawsuit against a 4-year old is permitted in this "litigious society."  Bull.