Friday, April 30, 2010

Follow Up on Critical Mass-Bicycle Assault

Yesterday I reported on the mixed verdict (as such verdicts are called) handed down by a NYC jury in the case of former NYPD rookie cop, Patrick Pogan's assault and battery upon hippie-dippy Christopher Long (pic).  The jury convicted Officer Pogan on two counts of felony fraud in the reporting on a non-existent assault and battery by Long on the police, but acquitted Pogan on the charges stemming from the assault and battery on the cyclist Long, which is preserved for posterity on YouTube video. 

There are so many reasons I find this stroy compelling, not the least of which is that so little real injury was involved, and it's a perfect morality tale.  The victim is sort of a dick, the cop a choir boy.  And yet it was the choir boy cop who committed the crime and then tried to cover it up.  We all see what the cop did by looking at the video, but a jury seeing what we see, refuses to convict the cop!  In talking about the jury nullification, one of the most light is cast on the mindsets by reading the coments at both the NY Daily News and the NY Post websites.   Laura Italiano, the reporter at the Post caught some interesting comments: 

"But Patrick Lynch, president of the Patrolmen's Benevolent Association, complained, 'This will have a chilling effect on every new, young officer when they realize that mistakes now become crimes.'


At the center of the case was the shove seen round the world -- garnering 5 million YouTube hits after another cyclist's video recording of the confrontation was posted.  The video clearly showed Pogan striding over to Long and pushing him down with his arm and shoulder."
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Patrick Lynch's "complaint" sounds like me whining about my tax nightmares. 

In reality I do think we want young officers to be "chilled" against assaulting cyclists and/or framing victims of crime. 

What Crimes Deserve Life In Prison?

Sholom Rubashkin (in the pic) is a guy I really relate to.  He is by admission a really lousy business man.  An article in the New York Times the other day about his situation shocked me and apparently has shocked the conscience of many former top U.S. law enforcement who have signed and mailed letters to the U.S. District Court judge handling Mr. Rubashkin's plea and sentencing.  US. prosecutors who are handling the case of Mr. Ruabshkin are recommending a life sentence for multiple counts of financial fraud relating to bank loans obtained by Rubashkin to try to prop up his failing family Kosher foods processor.  The following is an excerpt from Julia Preston's NYT article on Mr. Ruabshkin's case:

"Prosecutors, citing Mr. Rubashkin’s 'blatant lawlessness, utter lack of remorse, his egregious and repeated attempts to obstruct justice,' have asked Judge Linda R. Reade to impose a life sentence.

The proposed sentence startled legal experts around the country. In a letter written to Judge Reade on Monday, six former attorneys general, one former solicitor general and more than a dozen former United States attorneys criticized 'the government’s extreme sentencing position' and the 'potentially severe injustice' that could result.

The former Justice Department officials questioned the interpretation by Stephanie M. Rose, the United States attorney for the Northern District of Iowa, of the federal criminal sentencing guidelines that would apply to Mr. Rubashkin’s white-collar crime.

'We cannot fathom how truly sound and sensible sentencing rules could call for a life sentence — or anything close to it — for Mr. Rubashkin, a 51-year-old, first-time, nonviolent offender,' they wrote. The letter is signed by Janet Reno, William Barr, Richard Thornburgh, Edwin Meese III, Ramsey Clark and Nicholas Katzenbach, all of whom served as attorney general."
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Any follower of this blawg knows that I'm facing judgment for tax evasion, and I have agreed to enter a guilty plea.  I hope someday to be beyond the consequences of my blatantly careless acts and I am actively pursuing all steps I can to lessen the impact upon my children.  I am not seeking your sympathy, and I can certainly understand any contmept you feel for me as you judge my carelessness and incompetence as a businessman.  I freely admit that I wnated to be a trial lawyer and advocate--I did not want to be a businessman.  Likewise, I never intended to evade my tax obligations or cheat you, but I did.  I fell behind, I got scared, terrified, paralyzed.  I truly repent.  I repented a long time ago, but I could find no way back, no way out.  And even as I tried to bring my self into reporting compliance, it was too late.

My situation obviously makes me empathize with Mr. Rubashkin and really all business people who find themselves in over their heads, . . . and lost.  I suspect that many Bad attorneys, doctors, accountants, and other professionals are like me--they start out wanting to do good things with the skills or talents the creator gives them, but as in my case find themselves bogged down with business obligations never anticipated, and paralyzed by a lack of competence, planning or timely assets.  Do you really think Mr. Rubashkin who succeeded to his family's Kosher foods business wanted to commit crimes?  Ridiculous.  Did Mr. Rubashkin commit crimes.  Sure.  Apparently, repeatedly.  Should Rubashkin be punished?  Absoulutely.  Prison for life?  Have we lost our rational minds? 

God forbid you find yourself in financial trouble in life, because we have as-the-people enacted laws that are fantastically punitive.

Chiropractors and Lawyer--Money Grubbing

The Lousiville Courier-Journal reports on a lawsuit filed against a Louisville law firm that had a sweet deal set up with a chiropractor for mutual back massage, so to speak.  This si from Andrew Wolfson's article on the law firm and their chiropractic referral service: 

"Another lawsuit has been filed against Winters Yonker & Rousselle, asking that it be forced to forfeit all attorneys’ fees for allegedly accepting unethical referrals from a for-profit referral service.  The complaint, filed Wednesday in Jefferson Circuit Court, asks that the suit be certified as a class action on behalf of all of the firm’s clients in Kentucky. The suit was filed by James Rose and Christopher Rose of Elizabethtown, who says they hired the law firm after a motor-vehicle accident in May 2009.

The suit says that about two minutes after calling the "1-800-ASK-GARY" line, Christopher Rose was contacted by a representative of Winters & Yonker, as the firm is now known, and instructed to meet him at 1st Physicians Rehabilitation Inc., a medical office in Louisville, where the law firm signed up the Roses as clients.  The suit alleges that the law firm obtained the referrals through “illegal and/or unethical solicitation,” and that attorneys fees collected by Winters & Yonker from the Roses and other clients should be forfeited. Kentucky lawyer ethics rules prohibit referrals in return for anything of value.

The suit says that both the lawyer referral line and 1st Physicians Rehab are owned by Dr. Gary Kompothecras, a Florida chiropractor, which the suit says refers clients to Winters & Yonkers in exchange for the right to treat them as patients.  According to the lawsuit, fees for the law firm and 1st Physicians were deducted from settlements obtained for the Roses.

Similar claims were made in a suit filed in February by Sharon Langford of Louisville. Both suits were filed by Louisville lawyers Sam Carl and Richard Head.  The defendants, including the law firm and 1st Physicians, have filed an answer denying the allegations in Langford’s suit.

The complaint filed Wednesday names as defendants Bill Winters and Marc Yonker, who practice in Florida; Joseph Rousselle Jr., who left the firm; and Donald Matthew Kannady, who practices in its Louisville office.  Yonker, the firm’s spokesman, didn’t immediately respond to a request for comment."
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This sort of thing happens all the time!  Do not be shocked.  Sometimes, there are legitimate referrals to good lawyers by doctors worried that a patient needs competent legal advocacy--abd, sometimes competent lawyers feel that a client needs a good patient advocate in a medical-legal situation.  But the kind of scummy thing suggested here is also not uncommon.

A few years ago I represented one of the best supermarket chains in the OurState area.  This was and is a class operation that has been in business in OurState since the Great Depression and the family that owned it still owns it and still runs it like a family business.  They had an employee with a workers' compensation claim that I defendned for them against a real aggressive group of guys.  I go out to the lawyers' offices to take the deposition of the client and lo and behold the lawyers have an office door right next to the chiropractor's office door.  The same chiropractor treating the client.mmmmmm, what a coincidence!  Turns out the lawyers owned the building where the "doctor" rented his space.  One can only wonder at the independent judgment arising out of such a relationship.  Well not really.

I may have related the story of the Chriopractic Cuties, doublemint twin sisters who service the personal injury traffic in another large OurState town.  Occasionally a plaintiff attorney from T-town has flashed cocktail lounge photos of these beauties at me.  These "doctors" never seem to have any problem getting scandalously large chiropractic bills paid by the OurState workers' compensation fund. 

What a racket!

Thursday, April 29, 2010

Critical Mass Assault and Battery--An Acquittal

Here on Bad Lawyer I've been telling you about the assault and battery by the NYC cop, Patrick Pogan who was caught on video shoving a cyclist off a bike and onto the pavement during an organized protest by the group Critical Mass.  I embedded the video courtesy of the New York Post for you to see for yourself. 

Amazingly, the Post is reporting that a NYC jury acquitted Pogan of assault and battery.  You want to know what jury nullification is, go watch the video at the first link (above.)

Fortunately, Pogan was convicted of two counts of falsification relating to preposterous made up assault and battery charges filed against cyclist Christopher Long.  Pogan still faces jail time.  It's a good thing the jury convicted Pogan on at least a couple of counts because this bad cop was telling the press that he was planning on seeking reinstatement with the NYPD upon his projected acquittal.

Bad Reputation

I've been trying to deal with the self-inflicted humiliation that has become occupationally-specific agoraphobia of moving around my former professional world, particularly now that I am actively seeking help and attending meetings through the OurState Lawyers Assistance Program and AA--which requires me to leave my little office high up on the 9th floor of the Public Square of OurTown and walk among the living into venues where I practiced law for 28 years.   I'm trying to get at the root of my fear and dread, and it's all ego--fuck my ego, dammit.

So this morning I turned on my car stereo and the familiar crashing guitars and drums of Joan Jett and the Blackhearts sent me an inspirational message:

I don't give a damn 'bout my reputation

You're living in the past it's a new generation
A girl can do what she wants to do and that's
What I'm gonna do

An' I don't give a damn ' bout my bad reputation
Oh no not me
An' I don't give a damn 'bout my reputation

Never said I wanted to improve my station
An' I'm only doin' good
When I'm havin' fun
An' I don't have to please no one

An' I don't give a damn
'Bout my bad reputation
Oh no, not me
Oh no, not me

I don't give a damn
'Bout my reputation
I've never been afraid of any deviation
An' I don't really care
If ya think I'm strange
I ain't gonna change An' I'm never gonna care 'Bout my bad reputation

Oh no, not me
Oh no, not me
Pedal boys!

An' I don't give a damn
'Bout my reputation

The world's in trouble
There's no communication
An' everyone can say
What they want to say
It never gets better anyway
So why should I care

'Bout a bad reputation anyway
Oh no, not me
Oh no, not me

I don't give a damn 'bout my bad reputation
You're living in the past
It's a new generation
An' I only feel good
When I got no pain
An' that's how I'm gonna stay

An' I don't give a damn
'Bout my bad reputation
Oh no, not me
Oh no, not me
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Thanks, light!  Thanks, Joan!

Issues

As I cruise the blogosphere and the blawgosphere--I've noted a number of bloggers and blawgers abandoning the Google "Blogger" software format.  Apparently this relates to Google jiggling with something called the ftp-protocol which is some IP concept beyond my paygrade.  Many bloggers are migrating to Word Press--yesterday I noticed that my usual method of loading graphics was screwed with and I spent an inordinate amount of time trying to upload a headshot of the Tomato King...who needs this!?  C'mon Google!

So I need ot take a bit of a pause in my frenetic posting program to figure out whether to stay with this format or to jump ship.  If I remain using "Blogger" can I figure out how to use the graphics tool, not that I do all that much with it?

I usually, work on 4 or 5 matters at a time and I try to schedule at least two posts to run on any given day.  Right now I have several ready to run--but I feel thwarted by the software issue. 

In addition I should address where I'm at--I ahve made some progress in my effort to rehabilitate my corrupt-ass and reporting my progress is the point of this "blawg."  While I have nothing dramatic to report apart from my continuing shift in perspective, I do need to update the narrative.  Wednesday nights I attend a meeting which tonight ran way past my normal bedtimes, so off I go with a promise to tell more tomorrow. 

Since this will run at 6 AM, you'll understand the issues that kept me from posting my usual nugget of outrageousness--there should be enough backlog to keep you apoplectic, so read the archives, dammit.

Wednesday, April 28, 2010

Sleeping Lawyer, That's a Mistrial

A while back on Bad Lawyer we looked at the case of the fake lawyer in Colorado which despite discovery following "his client's" conviction--did not result in an immediate reversal;  now in Youngstown, Ohio we have the case of the sleeping lawyer.  Fortunately, this sleeping lawyer situation did result in a mistrial being declared according to the account at the Youngstown Vindicator.  This is from John Goodwin's article on jury selection:

"Prosecutors and defense attorneys were set for the start of a third trial in the case this week but did not make it past jury selection before Judge James C. Evans of Mahoning County Common Pleas Court declared a mistrial.  A prospective juror pointed out that one of the defense attorneys had been sleeping during questioning of potential jurors.  Atty. John B. Juhasz, representing Anderson, was doing the questioning. One prospective juror told Juhasz that she could not continue to pay proper attention when co-counsel Atty. David Gerchak was sleeping in the courtroom.

'That just unnerved me. This is a man here [on trial], and your partner is sleeping. Wow!' the woman said.

[The lawyer] David Gerchak explained that his sleeping in no way demonstrates a lack of interest in the case. He said he has just been diagnosed with diabetes and is taking medications to control the disease, but those medications can make him fall asleep."
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Yes, I guess at a minimum you want your lawyer to stay awake during the murder trial.    At least Gerchak was a real lawyer.

Tomato King Remains in the Can

Sacbee.com is reporting that the Tomato King (pic) is to remain behind bars for the present due to his risk of flight.  I told you about this guy back in early March, California agribusiness executive Frederick Scott Salyer, is facing federal racketeering charges in connection with his company SK Foods.  Sk Foods, Inc. supplies an estimated 14% of the nation's tomatos.  The charges against Sayler and his cronies in the agribusiness world is that they were defrauding food manufacturers and consumers with practices that included moving spoiled produce that ended up in your processed foods.  Yum!

Salyer has been incarcerated since February when he stepped off a plane after traveling overseas.  In the year before his arrest he had been liquidating all of his US assets and the feds strongly suspects he was planning to disappear to a country without an extradition treaty.  His attorneys argue that he was an international businessman and that his international travels were perfectly reasonable.  Sayler's lawyeres are also telling the federal court that Sayler's defense on complex criminal charges require him to be available to them.  Thus far, the Judge ain't buying.


An earlier SacBee article on Sayler's failed attempt to obtain his release on bond included transcripts of prison telephone conversations showing Sayler trying to manipulate his daughter,  and through her, his ex-wife:

["Sayler] told his daughter Caroline Salyer that he was 'done' and that if he killed himself 'it'll make everybody smile.'

'I have no reason to live, honey, and I cannot live in a (expletive) box,' he said. 'It's easier to live underground than it is to live above the ground in this (expletive) piece of concrete and eat (expletive) dog food.'  Each of these 'panicked, despondent' calls, as the government referred to them, was recorded March 30 – the day U.S. District Judge Lawrence K. Karlton withdrew an earlier order to release the 54-year-old erstwhile agribusiness titan awaiting trial on racketeering, conspiracy and bribery charges that could keep him behind bars the rest of his life."
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USC  Title 18, Sections 3141-3150 provides that pre-trial detention of individuals should be based on the danger to the community; under prior law as well as the risk of flight. 18 USC 3142(f) provides that only persons who fit into certain categories are subject to detention without bail, these include: persons charged with a crime of violence, or for an offense for which the maximum sentence is life imprisonment or death, or for certain drug offenses for which the maximum offense is greater than 10 years, and for repeat felony offenders, or if the defendant poses a serious risk of flight, obstruction of justice, or witness tampering. The law requires that a special hearing be held to determine whether a defendant fits within these categories; if not bail must be granted.  In Sayler's case bail has been set $6 million, but the Tomato King is unable to make bail.  His ex-wife has the keys to the property that would spring him, but she's disinclined to pledge it for his benefit.

For me, the Sayler story is a real grabber. 

This guy carelessly and recklessly tried to poison American consumers, then he gave every indication he was set to flee.  Instead, Sayler finds himself in what seems like the Karmic jail cell of his own making.  Many of us do what Sayler did (I know I have--) just not as spectacularly as Sayler has.  What jail cell do you find yourself in, today?

Tuesday, April 27, 2010

Don't Like the Outcome? Sue the Judge!

Christopher Savoie is one pissed off Dad.  Dr. Savoie is so pissed off that he's crossed a line not usually or successfully crossed, he's sued the Judge.  According to the Tennessean, Savoie is angry because during the post-divorce custody proceedings, Williamson County Circuit Court Judge James G. Martin dissolved a restraining order on Savoie's Japanese wife, Noriko Savoie, preventing her from taking the young children out of the country.   Judge Martin also ordered the return of Japanese passports on behalf of the kids.  Noriko Savoie promptly packed up the Savoie children and returned to Japan.

Dr. Savoie is apparently one of those guys who will go to any lengths to have his way.  He obtained a custody order stateside which he had affirmed by a Tennessee Supreme Court order and off he went to Japan where he stalked his ex- and kidnapped the children.  This little act of self-help got Dr. Savoie arrested and jailed in Japan for 18 days. 

Since returning to the U.S. Dr. Savoie has sued everyone connected with his divorce case including his former divorce attorney.  Now I should add, to be fair to Dr. Savoie, something is a little out of ht eordinary as it relates to Judge Martin's assignment to the custody case, since Judge Martin served as a private mediator in the Savoie custody dispute prior to being assigned the adjudicatory role.  This aspect of the case is troubling--nonetheless it's difficult to see how the Judge's actions are anything but immune under applicable legal doctrines.  There's actually a pretty good reason why the law says you can't sue the Judge, can you imagine how many lawsuits unhappy litigants would file?

As a father, in love with my children I can imagine Dr.Savoie's angst.  I also get the sense from the slender reeds of this report in the Tennessean that Dr. Savoie's ego is running completely wild.  He's is not going to be a happy man until he has spent a lot of money, and caused a lot of pain to those he perceives have wronged him.  Frankly, I would not want to be the attorney currently representing Dr. Savoie, we already know he handles bad outcomes less than gracefully or functionally.  Dr. Savoie may quickly find out that suing a Judge, in Federal Court because he didn't like an outcome is right on par with suing over a birth certificate because you don't like the outcome of a election.  I think we all remember how that's working out.

Bad Doctor--Dr. Robert Stokes

Mlive.com reports that the notorious D. Robert Stokes is to be featured in the new season of American Greeed on CNBC.  Stokes (pic) lived in the palatial mansion (pic, below) in East Grand Rapids overlooking beautiful Reeds Lake.  The house has been compared to the fictional Xanadu owned by publishing magnate in Citizen Kane based on the real life William Randolph Hearst, and the Hearst Castle.  How did Stokes get his money?  The old fashion way, unnecessary operations performed on his patients who are scarred for life, the disgusting reuse of medical equipment including sutures, and exploiting the system as completely as possible!  

Stokes is now doing 10 years in a federal prison in California.  Nice house. 

Medical Examiner Can't Figure Police-Shooting Victim's Cause of Death, MMMMMmmm. . . Maybe It Was Bullets?

The Maine Press Hearld reports that 55 year old Neil Begin was shot by an agent of the Maine State Police. Begin died the next day.

According to the Associated Press report in the Press Herald, the medical examiner conducted an autopsy but has not been able to determine a cause of death.  Maybe the cause of Begin's death was shock from being shot by the cops?  I don't know.  Clearly you don't want to leap to conclusions in these matters.

That's Okay We Don't Need No Stinkin' Evidence, You're Guilty Anyways!


The Charleston, South Carolina Post and Courier is reporting on the local magistrate who convicted a criminal defendant in abstentia without the presentation of that little detail we like to call,  evidence. 

That's right folks, Mary Brown Holmes a magistrate judge at the Ravenal/Adams Run Court got herself a public reprimand for finding a criminal defendant guilty of misdemeanor "simple assault" when the defendant failed to appear for trial--without any testimony and without any admissible evidence introduced against the defendant.  Magistrate Judge Brown casused a letter to be mailed out to the defendant informing the defendant that she had 15 days to pay a fine and court costs imposed by the court as a penalty or spend 30 days in jail.  The defendant explained her absence by telling the Post and Courier that she thought she had a deal with the prosecutor to dismiss the charges.  Apparently not. 

Do not skip your court dates.  Go to court.  Generally, speaking if you do not show up for court a warrant for your arrest will be issued.  In the rare instance, the court may proceed but with the proper notice to you and with actual evidence of your guilt to the charges being introduced in the proper fashion.

Drunk Driving Cop to Walk? Looks Like It

The Chicago Sun-Times relates the travesty of the Cop, John Ardelean (pic above left) who appears to be getting away with . . . well, two counts of vehicular homicide. This is from the Sun Times article by Kim Janssen:

"Key evidence can’t be used against a Chicago cop filmed drinking large amounts of alcohol minutes before he was involved in a car crash that claimed the lives of two young men, a Cook County Judge ruled this morning.  Judge Thomas Gainer Jr.’s ruling that evidence was illegally seized from Officer John Ardelean following the deaths of Miguel Flores and Erick Lagunas (pic above, right) on Thanksgiving Day 2007 severely weakens the case against Ardelean.

[T]wo fellow officers: a sergeant, and a fire department paramedic all said Ardelean didn’t appear intoxicated at the scene [of the motor vehicle accident where he killed these two young me], so [Officer Ardelean] wasn’t subjected to a Breathalyzer test until several hours later.  In his ruling, [Judge] Gainer [claimed] that Lt. John Magruder — who said Ardelean had seemed drunk when he was brought back to the police station — was an 'incredible' witness."
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The astonishing thing about this case is ther can be little doubt that this drunk maniac killed two kids and is walking.  Good work, Chicago!

Monday, April 26, 2010

God Bless the Jury!

In my experience, law enforcement are rarely wrong in the eyes of the Court.  This was evident to me years ago when as a very young Bad Lawyer I sat in a municipal court and watched a gentleman successfully defend himself on a traffic ticket only to have the magistrate adjudge him guilty on the "incredible" testimony of the cop.  As I've pointed out on Bad Lawyer in the past I also have known Judges independent enough to stand up to the local police, but let's be honest, there is a lot of pressure on Judges to back up local law enforcement.   So absent a pretty strong, independent-minded judge, it is always the citizen's fault if the cops choose to give a citation.

So this account from the Kokomo (Indiana) Tribune, made me smile:

Kokomo police said Addie Etherington was completely at fault when she collided with a police squad car in 2009.  A Howard County jury, however, wasn’t buying the official version.  It decided Etherington didn’t commit either of two alleged traffic citations, rejecting police testimony Etherington failed to yield and made an unsafe lane change.

The decision could end up costing the city, which has already received notice from Etherington that she may sue over the Oct. 20, 2009, incident. Etherington collided with a brand new Dodge Charger, driven by KPD Officer Adam Martin, at the intersection of Monroe and Washington streets. Police said Martin and other officers were pursuing individuals wanted on felony charges when the accident occurred.  According to witness testimony, Etherington was stopped at the intersection, ready to turn west onto Monroe, when Martin’s cruiser came up behind her and attempted to pass her on the left. Witnesses disagreed as to whether Martin was using his siren as he came up on Etherington.

She turned into the police car, witnesses said.

Howard Superior Court 3 Judge Doug Tate, who presided over the trial, said that much was evident from the damage to Martin’s right-front quarter panel and Etherington’s left-front quarter panel.  Tate said Etherington may have thought she was clear to turn when she saw another police cruiser go by on Monroe Street in front of her.  'I think if she had heard or seen the cop behind her, she would not have turned,' Tate said.  But proving 'failure to yield' required convincing the jury Etherington should have known she was required to yield. Tate said he might have ruled the same way as the jury, if the case had been handled as a bench trial.

'Given all the facts, I can’t say the jury’s decision was the wrong one,' Tate said. 'I also don’t feel the officer was in the wrong, in any way, shape or form.'
The April 16 trial was punctuated by Tate admonishing KPD Major James Calabro from the bench.

A defense attorney saw Calabro and Martin conferring in a courthouse hallway during a break, in apparent violation of a court order separating the witnesses.  'I take full responsibility for what happened. I made a mistake,' Calabro said Friday. 'I meant no disrespect to the court, to Ms. Etherington or to the lawyers involved in the case. It happened and I offer no excuse for my actions.'

The Dodge Charger sustained more than $9,000 in damage, and last year, city officials said the matter would go to litigation as to fault.  They made that statement more than a month after receiving a tort claim notice from Etherington’s attorney, Matt Golitko, blaming the city for the collision.  According to Martin’s police report, which Martin said Calabro contributed to, Etherington complained of a bruise to her face. In the tort claim notice, Golitko said Etherington suffered 'serious injuries.' Kokomo attorney Erik May defended Etherington during the jury trial.

Tate said the jury deliberated for about 15 minutes before issuing a finding of “false” on the traffic citations. 'The reality of it was that we were forced to take it to trial,' Golitko said. 'We requested it be dismissed ... but the state wanted to proceed. I don’t think it’s any lawyer’s desire to go to trial on traffic tickets.'”
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Are you hearing what the Judge is saying--I'm telling you folks, this Cop caused an accident by foolishly trying to pass a driver be going left of center, and the Judge is saying:  the officer didn't do anything wrong!  Are you kidding me.  Notice, Judge Tate says, "[I] might have ruled the same way as the jury." 

Uh, Huh, good thing Mrs. Ethertington opted for a jury trial. 

Good judges, and good cops are a community treasure--but, God bless the jury!

Affirmative Defense to Prosecution for Child Porn Discovered. . .

Carlos Simon-Timmerman a NYC pizza deliver guy traveled to Puerto Rico with an adult video in his baggage that resulted in a prosecution in Puerto Rico for possession of child porn according to the New York Post.  The Post article reports:

[In Mr. Simon-Timmerman's luggage customs discovered a] DVD called 'Little Lupe the Innocent' in his bags as he passed through San Juan Airport security on his way back to the city.  The agents said the actress in the video, porn star Lupe Fuentes (pic, uh the cleanest one I could locate via Google images), appeared to be underage. Mr. Simon-Timmerman was cuffed and taken into custody.  But Simon-Timmerman was sprung earlier this month after Fuentes flew to Puerto Rico and proved in court that she was 19 at the time the film was made.  'I'm thankful to her,' his mom, Eff Simon, told The Post yesterday. 'It was a big relief.'

Simon said her son had been visiting his sister last year in Venezuela when he bought the DVD in a flea market, believing it was nothing more than legal smut.  When Simon-Timmerman arrived in San Juan last Aug. 11, customs agents found porn videos, including: 'Little Lupe the Innocent -- Do Not Be Fooled By Her Baby Face.'"
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Nice.

Sunday, April 25, 2010

Give Me Back My Bullet!

The guy in the picture is Billy Joe Shaver.  He is no stranger to fans of hardcore Honky Tonk, or Outlaw Country music.  Billy Joe Shaver is an undeservedly obscure entertainer. He is a sometime actor (he was in the incredible movie:  Apostle, and Shaver is) a full-time Texas Hall of Fame singer/songwriter, and life-long hell raiser.  Shaver ranks with Waylon Jennings, Willie Nelson, Ray Price, and countless name artitsts in the pantheon of hardcore country outlaws.  Recently, he proved it again.

Billy Joe has lived a hard, storied life.  His son, Eddy Shaver, a virtuosos guitarist and Billy Joe's band leader throughout the 1990s died of a drug overdose.  That Billy Joe who was born in 1939 has not been long dead from organ failure is a medical miracle. 

I've been planning a story on Billy Joe Shaver for a while now.  Let me summarize:

Police in Lorena, Texas, 10 miles south of Waco, issued arrest warrants for Shaver April 2, 2007 on charges of aggravated assault and possessing a firearm in a prohibited place. This was in connection with an incident outside a tavern, Papa Joe's Texas Saloon in Lorena on March 31, 2007, in which Shaver shot a man, Billy Bryant Coker, in the face with a handgun. Coker's injuries were reported as not life-threatening.

Witnesses told police that Shaver asked Coker: "where do you want it?" and then, after the shot was fired, "Tell me you are sorry" and "No one tells me to shut up." Coker told police the attack was unprovoked. Shaver's attorney declared that Shaver had shot Coker "in self-defense" after Coker threatened Shaver with a knife.  In fact Coker, who was a "shirt tail relative" of Shaver's wife--had been stirring his cocktail with a knife in what Billy Joe construed to be a threatening manner. 

After unsuccessfully attempting to surrender to police in Austin, TX, who were unaware of the warrant, Shaver turned himself in at McLennan County Jail in Waco, TX on Tuesday, April 3. He was released after an hour on $50,000 bond and gave his scheduled performance at Waterloo Records in Austin that evening, where he reportedly told fans, "Don't forget to pray for me, and tell your kids to pray for me, too."

At his trial, Willie Nelson and actor Robert Duvall among others showed up to offer "character witness" testimony.  I think it's important to bear in mind that this is Texas, and perhaps the rules for "character" evidence as well as the jurisprudence of "self-defense" vary from the rest of the contiguous US and territories.  This is ture, because despite pretty good evidence that Shaver walked headlong into this confrontation, a confrontation he could have avoided.  So in the parking lot of Papa Joe's Bill Joe plugged Billy Coker.

A Waco jury acquitted him after a short trial on April 9, 2010.  I'm sure it didn't hurt that Shaver was represented by one of the greatest living trial attorney's,  Dick DeGuerin, or the phalanx of Texas Honky Tonk heroes and actors. 

The night of his acquittal Shaver was back on stage at the Firehouse Saloon in Houston, Texas with the great Dale Watson where he said of Billy Bryant Coker. . . "give me back my bullet!"  You can watch YouTube videos of this performace at the link.  Austin Legal which is at the link--has full coverage of the trial and of Shaver in performance.

Touchy-Feely Lawyer, In Trouble for Being Touchy-Feely Lawyer!

The Legal Profession Blawg had another account of a Lawyer with a screw loose. A Springfield, Illinois attorney is in hot water with the Illinois disciplinary authorities for "overreaching" in the attorney-client relationship.  James Rodney Reppy is a personal injury and workers' compensation attorney. 

Reppy is in trouble because he was falling into pattern of calling up both male and femal clients of the firm and offering, er, um, ...other services.  In one situation he offered to perform certain oral services not related to argument or advocacy for a male client while the client's wife was listening on the speaker phone.  And in a second instance Reppy offered massotherapy to a female workers' compensation client along with gas money and cash.  Touchy-feely (illustration) attorneys are probably in the wrong profession. 

As I have said many times on Bad Lawyer, do not screw the client!

Post-script:  Reppy's law firm website connects itself to Abraham Lincoln,--this is very amusing to me.  Somehow I doubt that the attorney, Abraham Lincoln even with all of his prophetic skills could have envisioned  a day in which his name would be bandied about by a personal injury operation staffed by a perv.  Then again histories of Lincoln "riding circuit" as a lawyer--get pretty suggestive.

Saturday, April 24, 2010

Critical Mass Assault and Battery--You Be the Judge

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The defense of former NYPD rookie, Patrick Pogan is torn from the pages of every bad rape defense--the victim, had it coming because the victim is a bad person.  Oh, and even though the video shows Pogan clearly attacking the victim Christopher Long--Pogan and his lawyer are claiming that the jurors can't believe their "lying eyes (you know, the eyes that look at a video of a cop walking across the street to shove a cyclist off his bike onto the pavement.)"  This is because, according to Pogan's attorney Stuart London, Christopher Long is a dirtbag, pot-smoking, anit-government piece of shit.  In other words, he had it coming.  This is from the New York Post coverage of the story: 

" The cyclist came at me -- and I had to stop him from hurting me,' ex-NYPD rookie officer Patrick Pogan insisted to a Manhattan jury today, giving his own, eyebrow-raising account of a notorious, 2008 cop-on-biker take down for the first time publicly. 'I thought he ran through a red light. He had his hands in the air...He had up what I perceived to be a middle finger. I told him to stop,' the baby-faced Pogan remembered to jurors.  But Christopher Long -- a kooky Critical Mass activist who told jurors earlier this week that he gets stoned every day, believes bikes have more right to the roads than cars, and finds the NYPD 'beyond reform' -- did not stop, Pogan testified.

The collision of bodies and egos that came next would be caught on a snippet of video that became an instant YouTube classic -- and some of the prime evidence against Pogan in his ongoing trial on charges of misdemeanor assault and felony false filing of a police report against Long. Today on the stand, the 24-year-old former altar boy sat on the witness stand as the video played on a screen to his side, giving the footage his own novel -- bike activists called it "dumbfounding" -- personal narration.  'I saw him going toward the sidewalk,' Pogan remembered of Long.

'He's either going there to go around me or he's going there to stop. Iok a walk to the side,' Pogan remembered. 'I see him rise up on his bike. I see him crouch down his shoulder as he's coming toward me... at this point I know he's going to try to use that shoulder against me.' Long, in his own testimony, had told jurors that he'd turned his shoulder toward Pogan at the last minute, to brace himself and put something 'not steel' between him and the cop so as to minimize the inevitable impact for both of them.

But to Pogan, Long raised his shoulder, 'maybe to scare me or use that shoulder to come through me,' the ex-cop testified.  Pogan insisted that in the split second between seeing Long's shoulder come up and the moment of impact, he performed in his head a complicated, by-the-book computation of his "force' options...'I could have used my mace but that would have cost the city more than $65,000,' the cost of settling Long's federal lawsuit, Pogan told jurors. 'Maybe I'll use my baton,' Pogan said he then wondered. 'But the baton was useless at that point. There was no way I could have used any of the tools at my disposal.'

Finally, 'I prepared myself for a hit. He was coming toward me. I braced for impact. I lowered my shoulder. There was a collision. I used my arms to get that bicycle away from me.'

Pogan conceded to the defense lawyer examining him, Stuart London, that the account in Long's arrest report and criminal complaint -- in which Pogan claimed Long had knocked him to the ground in the impact -- was less than spot on.  'It's not true -- I did not go down at that moment. I went down two later times in that incident,' Pogan averred.  The ex-cop's testimony continues this afternoon.

'I was dumbfounded,' Barbara Ross, a spokeswoman for Times Up, the environmental group that promotes the Critical Mass ride, said at the lunch break of watching Pogan testify. 'It's clear on the video that Christopher Long is avoiding [Pogan], not coming toward him. He's flipping reality upside down.'"
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It's amazing how Pogan can perjure himself from the witness stand in the face of this video. 

In another forum, I offered the opinion that the defense on this case is built on the old--good offense=good defense theory as demonstrated recently by the acquittal in february of this year of a group of NYPD cops who were alleged to have shoved a flashlight into the backside of suspect.  Despite testimony of at least one other NYPD officer who witnessed the assault the defense attorneys in that case aggressively went after the victim for being a punk and these officers "walked."  There was no video evidence.

Let's hope the jurors in this case can keep their "lying" eyes open.

$18.5 Million, Punitives Against the Boy Scouts of America

An Oregon jury awarded $18.5 million dollars in punitive damages against the Boy Scouts of America late Friday afternoon.  This involves the case of the former scout Kerry Lewis (pic, below,with lawyers,) and the revelation that the Scouts maintained "perversion" files which they tried to explain away as a proactive method of keeping child molesters out of scouting.  Apparently, not.

I'm going to quote from Aimee Green's article at the Oregonian website because I thinnk she does a really good job of laying out how one gets to "pun-ees:"

"During the punitive-phase of the trial, the jury was asked how much the Boy Scouts of America should have to pay to deter future lapses in protecting children and to punish past 'reprehensible' acts that failed to stop the man who sexually abused Lewis, who is now 38 and lives in Klamath Falls.


In closing arguments Thursday, one of Lewis' attorneys said punishing the Boy Scouts is no different than disciplining a thief who steals cash out of a till or the misdeeds of a Wall Street executive.  'Even if they apologize and say they won't do it again, they still have to be punished,' said Paul Mones, who represents Lewis along with Kelly Clark.

But Mones said the Scouts have yet to even issue an apology to Lewis or thousands of other boys who were molested by Scout volunteers.   Chuck Smith, an attorney for the Boy Scouts of America, discounted the importance of an apology.  'You've heard the argument we haven't apologized to the plaintiff, we haven't apologized to the parents, we haven't apologized to the country,' Smith said. 'Had there been an apology, what would these lawyers be telling you?: 'Why did it take so long?''

Then, Smith added: 'Is the only way to prevent child sexual abuse ...to apologize?'

During the first phase of the trial, Lewis' attorneys argued that the Boy Scouts of America failed to warn parents and boys of the danger of pedophiles within its ranks because it worried doing so would drive down membership and donations. The organization has documented thousands of suspected pedophiles in 'perversion' files since the 1920s, the Scouts said to keep the men from trying to sneak back into the organization.

In Lewis' case, assistant Scoutmaster Timur Dykes in 1983 admitted molesting 17 Scouts to a Scouting coordinator and bishop at the Church of Jesus Christ of Latter-day Saints in Southeast Portland. Lewis' attorneys argued Dykes was allowed to continue in Scouting, and he went on to molest Lewis. The Oregonian, which usually protects the identity of sexual-abuse victims, is identifying Lewis after he gave permission.

'We're not asking you to shut down the Boy Scouts. That would be wrong,' Mones told jurors. 'But you can make the Boy Scouts better. ...Some of you may have concerns about using money to punish the Boy Scouts of America, but that's all we have.'

Lewis' attorneys said it would take $25 million to get the Scouts to take notice. The $929 million organization pays its top executive $1.16 million annually; owns $100 million in property; owns a $45 million art collection and allows employees traveling with volunteers to fly first class in order to discuss business. Each month, the non-profit earns about $2.5 million a month on interest on $633 million in investments"
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So you see the analysis is about "deterrence," making an example of the BSA, punishment for really loathsome disregard of scouts;  and, the scale of the BSA's financials come into the calculus for the purpose of enabling the jury to consider what feels appropriate in the circumstances.  In other words, what will get the attention of the Boy Scouts and similar organizations. 

Interestingly, under Oregon law, 60% of he verdict remits to the State of Oregon's crime victims' compensation fund.

Friday, April 23, 2010

Ohio to Twitter Execution News--How Charming!

The Columbus Dispatch is reporting that those charming folks at the State of Ohio Department of Corrections are exploring the possibility of utilizing Twitter to disseminate execution announcements.  How completely thoughtful of them!

Saffold Gone, Gone, Gone...

As predicted, here, on Bad Lawyer the Ohio Supremes removed Judge Shirley Strickland Saffold from further proceedings in the Cleveland serial killer case.  According to Cleveland.com the Judge was posting comments at their website under several pseudonyms critical of law enforcemnet, public figures, lawyers, and regarding proceedings which were pending before her. 

This story is, perfectly, at the intersection of race, ego, social networking, justice, and ethics.  More to come.

Late Friday morning, Cleveland.com reported that former Cleveland Browns linebacker and currrent Common Pleas Judge drew the re-assignment of the Sowell case.

Jeff Anderson--A Great Lawyer

Here is the link to the profile of St. Paul, Minnesota legal warrior, Jeff Anderson that ran over the weekend in the Washington Post.  I had the honor of working with Jeff on several matters at a couple different junctures in the history of the priest-child sex abuse scandal.  Jeff is a profoundly committed and courageos advocate.  The reform of the Catholic Church in the WORLD would not be where it is but for Jeff's generosity, time, intellect, and insights--particularly as it relates to the posturing of the narrative.

Jeff's great insight, in my opinion, is that priestly sex abuse isn't about whether a priest committed a crime--it is about the aftermath of crime--the victims.  At every opportunity, Jeff shines the light on the victims and Jeff dares the Church and the courts to turn their eyes away from the survivors of priestly crimes. This morning as I shaved I listened to the BBC discuss his lawsuit against the Pope.  In fact he's been in the United States Supreme Court over the last year challenging the Holy See on jurisdiction in American courts.  So Jeff Anderson has always been more than a show horse--he's a role model and a work house, doing the heavy lifting because Jeff genuinely cares.

Jeff Anderson is a great lawyer.

P.S. If you haven't already don't forget to look at the Bad Lawyer post on Father Gilbert Gauther, who was released from a Galveston Jail this week.

Thursday, April 22, 2010

Mothers That Permit Boyfriends to Abuse Their Kids

This story from KansasCity.com reminds me of many cases I was involved in through the years where female adult relatives turned a blind eye to the abuse of grandkids, or nephews and nieces and sometimes of the their own children by the adult male child sex perpetrator living in the household.  The stories are tragic enough but to add the layer of the so-called loving mother-figure permitting it, is almost to much to bear.  No wonder so manyof these victims take their lives.  How do you bear the conscious awareness of your mother's abandonment of you into the hands of an abuser?

In the case reported at the website of the Kansas City Star a "boyfriend" but his girlfriend's young children in a hot dryer.

But it most reminded me of my much older first cousin Nancy (long deceased) and her children: Tammy and Jesse.   Sharon was a single mother, abandoned by the father of her children in the 1960s.  She lived upstairs in a duplex we lived downstairs.  All of us were dirt poor.  Nancy subsisted on welfare and handouts. My father was too proud to take "charity"--so my family, full of young kids subsisted on squeak. 

Nancy had a succession of hillbilly/pieces of shit-boyfriends that exploited her and molested her children.  Why do these women permit this exploitation and sexual abuse of heir children? 

Fear.

Who To Abuse?--Perfect Victims!

The Odessa Caller has an excellent article on a youth prison official who is being prosecuted for sexually abusing youngsters in custody.  According to an Associated Press report athe Caller website:

"Ray Brookins, the former assistant superintendent at the Texas Youth Commission’s West Texas State School, is being tried in Odessa on charges alleging he sexually abused at least young inmate.  'The perfect predator looks for a victim no one will believe,' Assistant Attorney General Ralph Guerrero said told jurors in his opening statement. 'He picked the wrong victim.'  Guerrero said the victim would testify in the trial that 'he just wanted to get out of jail, he just wanted to get home.”

Ray Brookins (pic) is the former Assistant Director of the Texas Youth Commission.  Law enforecement found child porn and teenagers in residence with Brookins at the time of his arrest according to news reports.

The prosecutor's claim about the calculation underlying the selection of child sex abuse victims is something I've talked about on Bad Lawyer.   Here, in OurTown the Archdiocese operated vaious youth facilities.  At one particular facility, Happydale, a pedophile correctional worker pulled nearly identical crimes to those perpetrated by Mr. Brookins.  How was this not detected?  The perpetrator was victimizing pathetic, intellectually and emotionally impaired children.  Who would believe them?  Who would believe angry family members, to the extent that any family members were around to object on behalf of the children?

These crimes are terrible.  There should be no place in our world where are children are exploited and victimized by "public servants" employed by our Church, OurTown, or OurState.

Shea Shares Light With You

This story from the Columbus Dispatch breaks my heart.  It should remind all of us, who are parents about what really counts; hint, it's not money, or prestige, or achievement, or righteousness.  This is from Holly Zachariah's account:

The judge didn't wear his robe yesterday, and no one addressed him as 'Your Honor.'  Instead, Union County Common Pleas Judge Don Fraser sat in the back of his own courtroom, wearing a suit. And the shackled and handcuffed defendant turned and called him 'Dad.'  Sumner Walters, a visiting judge appointed by the Ohio Supreme Court after Fraser stepped off the case, sat behind the bench and presided over the hearing for Fraser's 19-year-old daughter, Shea.

Shea Fraser, caught in a heroin sting in October, pleaded guilty on Feb. 11 to trafficking in heroin and possession of heroin, both fifth-degree felonies. In exchange for her plea, two other felony heroin charges were dropped.  Yesterday, Walters sentenced her to intensive probation and ordered her into Allen County's drug court, which removes the responsibility for monitoring the case from her father's court.

Judge Fraser said after the hearing that his daughter's longtime battle with drug addiction has changed him.

He has spent his retirement fund and his savings to send her to private treatment centers in Utah and in California. He hired private counselors, immersed himself in the treatment culture and attended Alcoholics Anonymous meetings himself to learn all he can.  Now, he is committed to starting his own drug court by July, and he has applied for a state grant to help fund it. If that money doesn't come through, he will at least hire a coordinator with funds from his current court budget.

He said he recognizes that few who come through his court have the opportunity for treatment like his daughter's.  Ultimately, a strong system of accessible treatment will benefit the entire community, he said.  'I have now seen the gaps, the holes. If this court can provide a safety net, a longer-term solution to the drugs that are the root of the problem of so much of the crime in this community, then we are compelled to try and do that.' He remains impartial on the cases he hears, he said, but admits he now comes to work each day with wider eyes and a broader perspective.

'I am heartbroken by the choices Shea has made, just as I've always been heartbroken by the choices the people who come before me have made. But in the end, they are their choices, and I will hold them responsible.'

Fraser wept as his daughter turned to address her parents in court.

'This isn't because of the way I was raised,' she told them. 'Mom and Dad, you are really, really good people, and you don't deserve everything I've put you through.'

Allen County Prosecutor Juergen Waldick, who handled the case instead of the local prosecutor, said Shea Fraser has a long history of abusing almost every kind of drug but had no criminal record until now.

Fraser said that just as he hopes his new drug court will change lives, he hopes his daughter takes the second chance she has been offered.
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There is so much tragedy inthe world.  Here, in the face of loss and tragedy, a glimmer of light that I feel honored to share with you.  Perhaps, Shea and her father, have transformed darkness into light.  Those tears in my eyes are for all of our children.  My tears are for the lost and lonely child in you and me.

Judging Priorities--Ego!



The Legal Profession Blawg had a citation to a compelling opinion about former North Carolina Judge Bill Belk. That's Belk's commercial from his run for the Judgeship, presumably from which he has just been removed by the NC disciplinary authorities. 

Belk is a corporate mover and shaker, and NC judicial ethics requied that he recuse himself from various boards that he served on.  This did not sit well with Judge Belk (who is a nephew of Charlotte's former mayor and owner of Belk's Department Store)--and Judge Belk flouted the NC Supreme Court requirements in fact he openly defied Supreme Court established rules for the judiciary.  Judge Blek decided on his own accord that this Judging-thing really wasn't what he wanted to do after all;  and, he quit the job mid-term.

The disciplinary opinion is remarkable in the sense that it accuses Belk of all sorts of dishonesty, lying to judicial authorities, and showing disrespect to other Judges, but apart from "removing him from the bench" the disciplinary  opinion takes no other action.  You might be excused from wondering if Judge Belk's apparent political and financial "juice" stayed the hand of the NC Supremes....nah, that never happens.

Wednesday, April 21, 2010

Father Gilbert Gauthe--How It All Began

I came across a story at the Beaumont, Tx Enterprise reporting on the release of the guy in the pic after a two year jail term in Galveston for not registering as the sex offender, that he is.  Why should we care?

The guy in the picture is Gilbert Gauthe, a former Louisiana priest and one of the first priests in US history to be prosecuted as a pedophile priest.  In 1985 following a lenghty scandal, investigation, and attempted cover-up by the National Conference of Catholic Bishops, Gilbert Guather was convicted of 34 counts of child molestation.  This is from the Enterprise article on the Guathe's release:

"Former Catholic priest Gilbert Gauthe, 64, who in 1985 was convicted on 34 counts of child molestation and possession of child pornography in a Louisiana case, was arrested by La Marque police in April, 2008. Gauthe was living in his recreational vehicle at Galveston State Park when police arrested him for failing to register. Before then, he was living in La Marque and driving for a limousine service."
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The Gauthe scandal was investigated by Jason Berry.   Jason Berry detailed the heroic efforts of Father Tom Doyle, who fully faced down the National Conference of Catholic Bishops (NCCB) and their hit man, Auxilliary Bishop A. James Quinn.  Bishop Quinn, a civil and canon lawyer, was an architect of the cover up of priest sex abuse scandals in the US.  Quinn was capable of any every loathsome act in his crusade to protect the Magisterium of the Church.  Quinn attempted to slime Doyle and Berry and really anyone critical of the Church.  If you're interested at all in how the Church finds itself where the Church  finds itself, read Berry's books!

When I practiced law in my prior life, I deposed Bishop Quinn and subsequently discussed evidence developed in connection with that discovery with Jason Berry, producers for 60 Minutes, and the investigators at  Boston Globe.  Yeah, OK that's a little bit of pride oozing out from under my hat.

The real heroes of the effort to reform the Church are people like Fr. Tom Doyle, Barbara Blaine of SNAP, David Clohessy of SNAP, Jeff Anderson, victims like Frank Fitzpatrick who came forward in the Father James Porter case, and so many nameless victims and others who had the courage to withstand the hatred of parishoners egged on by the likes of Bishop Quinn and the Red Mass militia.

The "Father Gilbert Gauthe case" is significant because it was the subject of the first 60 Minutes stories on priestly-child sex abuse in America.

So look closely at the picture of Father Gilbert Gauthe, his crimes are the crimes that toppled the very first dominoes.  In his way, Gauthe's crimes still resonate, louder and louder.

My Lawyer, the Fence

The ABAJournal.com which is nominated for a Webby and deserves it, (go vote for them) has this extraordinary account that sounds like a sequel to the Thomas Crown Affair (a very cool movie whihever versio of it you see.)  Here's their account which I believe they derived from the Assoicated Press:

Robert Mardirosian's client was an art thief who pulled off one of the biggest art heists in US history..


When David Colvin brought the paintings which included a Cezanne still life which eventually sold at auction years later for nearly $30 million—to Mardirosian shortly after the 1978 heist, the lawyer initially [hid] them for safekeeping[.]

[At some point, the thief] Colvin was shot to death in 1979.   [His lawyer, Robert Mardirosian] apparently succumbed to the temptation of trying to cash in on their extraordinary value. He held the paintings until 1988, then shipped them to a Swiss bank, according to prosecutors and the appellate opinion. After cutting a deal to return the Cezanne in order to obtain legal title to the other paintings, which were of far lesser value, Mardirosian finally tried to sell them in London, anonymously, approximately a decade ago.  That led to his arrest and federal conviction for possessing stolen property which had crossed a United States boundary. Yesterday, the appellate court upheld Mardirosian's conviction and seven-year prison term, finding the retired attorney's argument that he believed he had legal title to the paintings unpersuasive.

Contracts entered into for illegal purposes are void, the court pointed out. And, whether or not Mardirosian really believed that he had subsequently obtained legal title to the paintings, he could not and did not claim that he had acted innocently when he kept them after his client died rather than contacting authorities.

"We know of no case—certainly, none has been cited by the parties—that has recognized a mistake-of-fact defense once all the elements of the crime have been met. Although we are hesitant to announce categorically that we would never extend the doctrine, the facts of this case illustrate why we would be reluctant to to do so, and why we will not do so here," the court writes.  "Were we to recognize subsequent mistakes of fact, sophisticated criminals would have the incentive to generate reasons to believe that their conduct is no longer wrongful. Like Mardirosian, some might seek to 'contract' with their victims and could use more violent means of persuasion. We could not countenance such a result"
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Now, here's the honest to God, truth, this lawyer committed a crime when he took the art work originally.  This is no different than laundering drug money through a turst account, stolen art work is the proceeds of  criminal activity and the lawyer was receiving stolen property,

Oregon Justice of the Peace Opens Mouth, Is Gone!

This story is an eye-opener and I owe a big tip of the cyber-hat to KC Crime Blog for the account. 

A self-described "300lb. asexual virgin," and long-time Justice of the Peace,  lost her job after an investigation revealed a pattern of pathologically inappropriate sexual banter with court personnel, clerks, adult and minor defendants in her court.  This story is breath taking in terms of the sheer scale of what was tolerated for so long by this Oregon community.   Here's the account from Karen McGowan at the Eugene, Oregon's Register-Guard:

"A longtime justice of the peace at Central Lane Justice Court has resigned after a county investigation found that she made repeated offensive comments to her staff — and sometimes to parties appearing in her courtroom.  County officials and Oregon Gov. Ted Kulongoski confirmed receipt Monday of Cynthia Sinclair’s resignation letter.  It followed a three-month probe in which an outside investigator concluded that the 58-year-old judge made unwelcome sexual comments to court clerks 'with such frequency that it permeated their work environment and … unreasonably interfered with their ability to do their jobs.'

The investigation by human resources consultant Bev Russell found that one longtime clerk resigned years ago because of Sinclair’s behavior, while another complainant said she would also quit if Sinclair remained because her repeated sexual references made work unbearable. Sinclair was elected three times and served 13 years in the post. She is a former court clerk who has no law degree, which is not required for a justice of the peace position.

Sinclair was known for her colorful pre-court statements dramatizing the dangers of the minor offenses she handled, from speeding to truancy. But five female clerks who worked under her in the justice court banded together in December to complain to county officials about some of those comments — as well as about her sexually fixated statements to them. Among Sinclair’s in­-appropriate courtroom remarks, her accusers said, was asking a mother of five children, one of whom was in court for delinquent behavior, 'Don’t you wish you could shoot all teenagers?'

The judge also allegedly warned truant girls that they would 'end up dancing naked on tables' at a Springfield strip club. She also reportedly told young defendants: 'You will learn about sex when you are in jail showering with other people.'

One clerk allegedly balked at typing Sinclair’s letter warning a truant child that 'any man with a penis will do a sixteen-year-old girl.' The judge reportedly disagreed with her objections and sent the letter unchanged. Sinclair told Russell she 'probably' wrote letters to parents of truant children warning them that adults would take advantage of their offspring.  Sinclair told Russell she warned juveniles that 'bad things can happen in jail' because she wanted them to understand it is not a good place for kids.

The clerks said Sinclair also privately made disparaging remarks about defendants of certain races and generations. They said Sinclair made disparaging remarks about 'Arabic' men, about a 'new class of blighters with no moral code' and Latinos.  They also said she gave Latino children piƱatas, while other children were given toys unrelated to their ethnicities. Sinclair denied such bias, adding that, 'if she had to choose' a favorite clientele, it would be Latinos.

Current and former Central Lane clerks told Russell that Sinclair made comments to them about dancing naked on their tables; about vibrator use and masturbation; and about their partners’ sexual functioning.  She reportedly asked them about their degree of sexual experience in front of co-workers. And she allegedly drew a 'very gross' picture of one employee being lifted by a crane on top of another employee.

Also included among the 284 findings:

The judge gave court employees a written quiz about what they would do if there were a fire in the office. One of the optional answers the judge listed was 'masturbate.'

One witness said the judge tells employees at least once a month to take off their clothes and dance naked on the tables, and did so as recently as this past February.  When one employee received a gift basket at work, the judge said to her: 'Who did your husband have sex with this time? Is he having more affairs with other women?'  One witness said she heard the judge say repeatedly that a sheriff’s deputy would have an orgasm when he learned how many of his cases were on the docket. Witnesses said, and the judge agreed, that she told employees their clothes were sexy.

One clerk complained that Sinclair signed the names of two troublesome defendants in the clerk’s wedding guest book. And she reportedly gave an employee with sleep apnea a gift catalog with the employee’s name written above two alarm clocks.  Sinclair told Russell that such actions were intended as jokes for co-workers she considered friends rather than employees. The investigator concluded that Sinclair made no effort to hide her comments, sometimes making the remarks in a public area of the court clerk’s work area.

In a 10-page letter responding to the complaints, Sinclair denied that her conduct was sexual harassment, saying she had never “hit on” an employee, posted “nudie” photos or made “naughty telephone calls.” She described herself as a 300-pound, hetero­sexual, 'essentially asexual virgin.'  She also wrote that the U.S. Constitution protects free speech and trumps 'sexual harassment claims based solely on verbal insult, pictorial or literary matter.There has to be some tangible element of threat to overcome the free speech component,' said Sinclair, who twice completed county sexual harassment training that makes clear that no such element is required. Sinclair also wrote: 'While there is a requirement that a RAPE victim must make clear to her attacker that the physical assault is unwanted,'  employers do not have to tell a supervisor that a joke is unwanted.

Several court workers told Russell they did tell the judge her remarks were offensive and inappropriate. Sinclair often responded, they said, by 'pouting' and shutting workers out of her office for days at a time.

One clerk declined to join in the complaint, telling Russell that the others could have done more to let the judge know her behavior was unwanted.  One of the complainants called Sinclair a personal friend, but said she had been unable to persuade the judge to stop her explicit comments. That clerk told Russell she believed Sinclair may suffer from some sort of mental illness that compelled her behavior. Sinclair is accused of allegedly retaliating against the court workers who filed the complaint. She reportedly changed the job evaluation of one, and told others that their complaints could prompt the county to close the Central Lane Court.

She allegedly put up a sign in her office, saying: 'NEVER, EVER, EVER, EVER, EVER, EVER, EVER, EVER, EVER, EVER, EVER, EVER, EVER, EVER JOKE WITH THEM AGAIN. THEY ARE NOT YOUR FRIENDS.' And she suggested in her rebuttal, 'If I was trying to push someone over the edge, trying to make them suicidal, I could not do a better job than what my ‘friends’ have done to me here.'  The clerks charged that Sinclair locked her office door and slept from 11 a.m. to 1 p.m. most days, not responding to their knocks or phone calls when they had questions about court matters. The judge said the county bought her a couch for her to nap on. Sinclair resigned effective July 1, meaning Lane County taxpayers will continue to pay her $50,939 annual salary until then. Because she is an elected official, the county has no authority to halt her pay before that date, Lane County Counsel Liane Richardson said Monday. Area voters could theoretically force a recall election to remove her from office, but it’s unlikely that could be accomplished before July 1, Richardson said."
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Years ago there was a court that I practiced in regularly that had a Judge who was on par with this character. 

In those days, Judges would smoke in their courtrooms and this guy was a chain smoker.   Even after the rules changed he continued flouting the no-smoking bans.  He was a totally creepy guy, and at the same time there was something pathetic and slightly endearing about him.  Maybe it was just because he was such a loser, and you knew he knew it.  Then again that was a different era.  It is a good thing that things have changed but a lot of colorful people have been left behind. 

I'm sure it wasn't easy being around Ms. Sinclair.  She certainly had no appropriate role in lecturing youngsters.

Tuesday, April 20, 2010

Alcoholism and the Bad Lawyer

I am an alcoholic.  If you read the Bad Lawyer, this is not surprise I've written about this many times since I launched this blawg last summer.  Local websites and professional blawgs are full of funny, tragic, and disgusting stories of alcoholism and it's effects including domestic violence, injury, disgrace and death.

I've related many stories of lawyers and lives ruined by alcoholism.  Alcoholism is a mental illness of which a symptom is drinking excessively and obsessively.  Stop the drinking, and you are still and alcoholic.  I still have the mental illness.  I'm afraid despite 24 years of not drinking (with, let me acknowledge 3 brief ill-advised relapses), I have not recovered from alcoholism.  My grandfather on my mother's side was a notorious alcoholic if I can trust my memory of my family history--and, my gandmother on my mother's side died an alcoholic. 

According to the family history I recall hearing, my mother's father, who I have no recollection of but there is an old family photo of him holding either me or my brother--was a regional salesman for the Del Monte Company out Indianapolis in the 1940s-50s.  According to family lore he was a charismatic man, but a doomed alcoholic.  I've outlived him, he died of a heart attack changing a tire.  My mother told me that he was "in and out of sanitariums" to dry out, "get the cure."  The cure never stayed around. 

So I was intrigued by a story in the NYT this AM about the Charles B. Towns Hospital in NYC that opened in the early 19th century.  This story is very cool, it actually talks about "the cure," which was thought to be a pharmacological mixture of belladonna (nightshade extract) and other chemicals.  The pharmacology turned out not to effect an overall good outcome for patients.  Except, perhaps, in the view of the article's author, Howard Markel, M.D. for one very special patient--the legendary Bill W. 

Dr. Markel's remarkable account suggests that Bill Wilson, an east coast stockbroker who would later connect with Dr. Bob Smith in the gatehouse at the famous Seiberling mansion (Stan Hywet Hall) in Akron, Ohio--may have been in the throes of a belladonna hallucination when Wilson experienced the ecstatic calm, that Wilson and Smith later described in the "Big Book" as the spiritual experience that some alcoholics experience prior to or immediately after achievin sobriety.

Personally I don't buy Dr. Marke's speculation because my own personal experience and that of so many others that I met, not under the influence of the AA "kool aid" or legend is remarkably similar.  I had this soul shaking moment, a genuine spiritual experience. I feel goose bumps as I write about even now.  The challenge for most alcoholics is to remember this experience, to remember the way out of the morass of their own disorder.  I admit that I have been lost again, too. I have been hiding for so long, like Adam in the Garden when he recognizes his nakedness before God.  

Fortunately, I have an appointment with the OurState Lawyers' Assistance Program people for a mid-day meeting tomorrow.  I'll keep you posted.  I have a long road back, but what options do I have?  Suicide is not an option if you are genuinely a parent--and, I genuinely love my children.  Or as my friend the R-man says, suicide is the supreme act of selfishness.  Let me visualize the death of the angel of death--that Angel (my ego) has been stalking me.  Not today, dammit!