BAD LAWYER

Bad Lawyer Says "Goodbye"

2011-07-21T11:45:00.001-04:00

I started the Bad Lawyer blawg in August of 2009 as my career, reputation, and life seemed to collapse. Well, the first two collapsed, amazingly with friends and family the latter did not. As painful as it has been this may prove to be the "good old days," I just need to learn to accept.

At that time I wrote because I was unable to sleep or get any relief from an abysmal depression and panic attacks I was suffering as I fearfully grappled with my disasters and the consequences caused by my conduct. So in large part I wrote in a pathetic bit of self-pitying and as I was often accused by certain commentators, rationalization.

In the last two years I documented the course of my disciplinary process (although not completely because I'm still in the midst of it), my legal proceedings, my prison sentence for attempted tax evasion, my probation and finally my return to work. As I write I do not know if I will ever be reinstated as a lawyer. I don't want to be grandiose, but I did view the law as a calling, one that I often loved as an advocate, hated as a unwilling businessman, but was privileged to practice from November 1982 till December of 2009. As we say in AA, I've "turned that over," the question of reinstatement although I am forever indebted to the amazing attorney, Lester, who has done so much for me, pro bono, to try to help me through these thickets.

I liked "blawging" because it offered me a soapbox to try to be socially relevant despite my situation. You should never doubt that the stories I posted about "bad" lawyers, judges, doctors, drivers, parents, idiots, and morons--these stories, were always about ME. Likewise, I posted the occasional story about admirable persons in and out of the law, these were stories also about me, as well. Or rather, I should say the stories were about--who I aspire to be by the grace of God.

I have some other things, other projects, and a life with my family to live. I'm now letting go of the "past" absolutely.

Thank you for reading and commenting on Bad Lawyer. There are a lot of great law blawgs: ABAJournal, Above the Law (when they remember that the law is mostly not "big law"), Simple Justice, Grits for Breakfast, How Appealing, Point of Law, the Agitator, Overlawyered, Injustice Everywhere, the WSJ Law Blog, and many others which I plan to continue to follow and comment at, in my nom de guerre, Bad Lawyer. Maybe I'll chat with you along the road.

Good bye.

How Not to Behave at Your Sentencing

2011-07-21T11:29:00.000-04:00

This video come by way of Syracuse.com; at the link you can read an excellent "print" report.

Generally speaking the sort of conduct at your sentencing shown in the video will not advantage you in anyway in your path through the justice system. Conduct like this is, also, not likely to improve the conditions or your incarceration or put you on a fast path to parole or alternative sentencing.

What an asshole.

How Are Illegal Drugs Valued?

2011-07-21T11:11:00.000-04:00

As far as I know illegal drugs do not come with UPC symbols or price tags, so my question is: how are illegal drugs seized by law enforcement valued? My question is prompted by an endless stream of articles especially from the Border states announcing eye-popping drug seizures like this one from Gustavo Solis at SignOnSanDiego:

U.S. Border Patrol agents foiled two drug smuggling attempts over the weekend resulting in the seizure of $676,880 worth of cocaine, crystal methamphetamine and marijuana.

The first seizure occurred about 3:20 a.m. Saturday when agents at the Interstate 8 checkpoint near Pine Valley stopped two men in a 1980 Chevrolet Camaro. The men, 36 and 25 years old, were from Mexico but legally in the United States.

With the help of a police dog, agents discovered in the Camaro nearly 41 pounds of cocaine worth an estimated $409,400 and about 9 pounds of crystal methamphetamine worth an estimated $164,700. The men were taken into custody and their car was seized, agent Scott Simon said.

The second seizure occurred about 12:15 a.m. Sunday at the I-8 checkpoint when agents stopped a 36-year-old U.S. citizen driving a 1993 Toyota 4 Runner. The driver appeared to be extremely nervous, so his truck was referred for a secondary inspection.

Agents searched the vehicle and discovered metal casings in all four tires and 24 black-taped bundles of marijuana. The marijuana totaled about 171 pounds and was worth an estimated $102,780. The suspected smuggler was taken into custody and his truck was seized, Simon said.
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I'm dubious about how law enforcement sets these valuations. I wonder whether there has ever been a rigorous study on this issues. I mean since we all know that law enforcement is nothing but a bunch of sweethearts who are invariable filled with proper levels of righteous integrity in all that they do for us, can we trust their numbers? Is there ever any exaggeration? A wee bit? Maybe?

Would You Convict Romeo In the Murder of Tybalt?

2011-07-21T11:09:00.000-04:00

The BBC brings us the mock trial of Romeo in the murder of Tybalt. Where's my pal Gayle, the Bard Scholar, when I need her? Would she convict, would you?

Shocking Verdict: TASER hit for $10 Million

2011-07-21T08:55:00.000-04:00

A federal jury in Charlotte, North Carolina awarded $10 million in the death of a local teen. Here's reporter Doug Miller's account at the Charlotte Observer:

A federal jury has ordered Taser International Inc. to pay $10 million to the family of a 17-year-old Charlotte teenager who died after a Charlotte-Mecklenburg police officer struck him with a Taser.
The incident happened in March 2008 at a Food Lion in northeast Charlotte.

Police at the time said the officer violated policy when he shocked Darryl Turner (pic) for about 37 seconds, contributing to the teen's death. Turner fell to the floor during the confrontation and died.

The jury returned its verdict Tuesday in U.S. District Court for the Western District of North Carolina, according to the Charlotte Business Journal.

Lawyers for Turner's family persuaded jurors that the manufacturer knew the product could cause heart problems if it struck near the heart but failed to warn customers, the newspaper reported.
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Great. Go after TASER Inernational and the Boys who think they need these toys as often as merited. While I don't think this weapon should be unavailable to law enforcement TASERS should be used rarely. In other words current usage levels are out of control. These are dangerous, often fatal weapons too often deployed by knuckleheads with badges.

Scott Greenfield on the "Nancy Grace Hours"

2011-07-21T08:23:00.000-04:00

Don't miss this excellent essay on the impact of Nancy Grace on the upcoming Dr. Conrad Murray (Michael Jackson's physician's) trial in LA.

You know you love her....just kidding.

Coke in the Courthouse Costs Counsel 90 Days

2011-07-21T06:58:00.001-04:00

When you're cokehead CDL defending a high profile accused murderer and the police investigator and lab technician are hanging out where you're hanging (the lawyer's lounge, for instance) you might want to consider not sniffing cocaine at the conference table during recesses in the court proceedings.

The Legal Profession blawg reports, this morning, on the a Twin-Cities based lawyer's Charles Ramsey's (pic) earned a 90-day suspension for Cocaine possession following his arrest in January 2009.

Ramsey was defending a murder suspect in a high profile cold case prosecution when the police investigator and lab tech noticed cocaine residue and Ramsey wandering around sniffing like he might have been tooting. Upon this suspicion other police took the CDL into custody and a search turned up 5 grams of cocaine. The criminal trial came to a screeching halt, Ramsey went to jail, and has according to the disciplinary case, successfully entered recovery for his cocaine addiction.

The client, accused murderer, Jack Nissalke, was convicted following a retrial 6 months later, now represented by different counsel.

"Okay. Allrgiht. Thank You."

2011-07-21T06:07:00.000-04:00

Did the defense attorney's utterance of these words: Okay. Allright. Thank you, constitute a waiver of his request to have a jury polled following a $1.69 million dollar verdict against a Syracuse hospital in a recent medical malpractice case?

According to court's reporter Jim O'Hara at the Post-Standard that is in fact the decision of the Appellate court in upholding the million dollar plus verdict for Tina Holstein against Community General Hospital of Syracuse. What happened is fairly ambiguous both in Mr. O'Hara's story and in the underlying facts. But apparently after the verdict was read from the bench, the defense attorney asked that the jury be polled to determine if in fact the verdict was the verdict of each juror. The judge in response to the request said to the defense attorney--each of the jurors signed the verdict form whereupon the 5 magic words were uttered which were construed by the judge to be a waiver of the "polling."

I'm struck at the judicial scrutiny is given this "waiver" in a civil malpractice case, but the US Supreme Court confronted by repeated insistence upon having a lawyer present during an interrogation can find "a waiver" through lapse of time. I realize we're talking about "apples and oranges," but it does seem remarkable to me that we bend over backwards for wealthy corporations over something as inconsequential as polling a civil jury following a verdict, but a criminal defendant--whose life and liberty is on the line gets short shrift.

Well, really I'm not surprised. You?

Busted By the Feds, um Because You're On Facebook, Idiot!

2011-07-21T05:54:00.001-04:00

Andrew Wolfson at the Louisville Courier-Journal has a witty discussion of the (Darwin Award-worthy candidates and) criminal defendants who find themselves in hot water over their Facebook postings. Here's an excerpt from Wolfson's excellent article:

If you don't want to do the time, stay offline. Or at the very least, don't “friend” your probation officer.

Convicted of possessing methamphetamine and Ecstasy, Scott W. Roby learned that the hard way. The Louisville man had his probation revoked this month — and was sentenced to two years in prison — in part for violating conditions that required him to stay alcohol-free and out of bars and liquor stores.

Roby had invited his probation officer to be his friend on Facebook, then Roby posted pictures of himself drinking — including one in which he was holding a beer while posed next to “Buddy Bat,” the mascot for the Louisville Bats, said prosecutor Dinah Koehler.

In another Facebook post, according to court records, Roby asked: “Anyone wanna go get smashed tonight one last time before the end of the Earth?”

Judges, prosecutors, defense attorneys and the Kentucky Department of Corrections say that with increasing regularity, offenders on probation are losing their freedom or incurring other sanctions after posting pictures online of themselves clubbing, using “beer bongs,” posing with firearms or bragging about out-of-town trips they've made without their probation officer's permission.

Louisvillian Donnie Lee Griffith Jr., 22, for example, who also was on probation, went to prison last year on theft and burglary convictions after posting a Facebook photo in which he was holding a jar of clear liquid over a caption that said, “Moonshine rocks and so do I!”

In another post, according to court records, he reported that he was “drinking like a fish.”

Chelsea Otto, also 22, got 60 days tacked on to her 1-year sentence for cocaine possession in 2009 after she boasted that she drank “like 20 pina coladas” during an unauthorized weekend jaunt to Clearwater, Fla.

In another post, she exclaimed, “We SHUT Hotel down!” referring to a 4th Street Live! nightclub.

Jefferson Circuit Court Judge Audra Eckerle said she's revoked probation for two offenders in part for their Facebook posts in recent years, including one who brandished a firearm in violation of his probation rules. Assistant Commonwealth's Attorney Bill Adams, who prosecuted Otto, said he's had a half-dozen cases in which offenders on probation incriminated themselves through social-media sites.

Probationers are required to stay away from alcohol, drugs and firearms and out of places that derive most of their revenue from alcohol sales.

The state doesn't track revocations triggered by social-media postings, but Lisa Lamb, a Corrections Department spokeswoman, said officers have used social media heavily for four years, both to find absconders and to monitor offenders on probation.

One officer, Shannon Blalock, who works out of the department's Murray office, does nothing but troll online and train other officers to do the same.

Blalock said some judges peruse social-media sites themselves, looking for violators.

Facebook indiscretionsKentucky is not the only place where offenders are getting kicked off probation for implicating themselves online.

In Connecticut, according to press accounts, a woman convicted of killing a teenager while driving drunk had three years added to her sentence in 2009, in part because she was shown posing with alcohol in virtually every picture on her Facebook page — “worshipping at the altar of alcohol, debauchery and lewd behavior,” a prosecutor said.

The ABA Journal recently reported that the first thing some criminal-defense lawyers tell clients now is to shut down their Facebook accounts.

In Jefferson County, judges and lawyers say the stunning thing is that offenders often disclose their indiscretions online even knowing their probation officer is watching.

Griffith, for example, was thrown out of a pretrial diversion program after friending his officer, Olivia Payne, then posting photos of himself out of town and drinking at nightclubs. “Get a clue, strap on yo' shoes and get your --- to the Pink Door,” he said in one post.

When Jefferson Circuit Judge Susan Schultz Gibson gave Griffith a choice of shutting down his Facebook page — or continuing it with Payne still looking over his shoulder as his friend — he chose to keep it. Then he posted a report saying he'd been arrested for drunk driving, which Payne read. That was the last straw for Gibson, who revoked Griffith's probation and sent him to prison.

Why would somebody tell on himself in what amounts to an online confession?

“That is the $100,000 question,” said Louisville attorney John Dolan, who defended Griffith.

Assistant Commonwealth's Attorney Ryane Conroy, who prosecuted him, suggested that it is a “cockiness that they won't be held accountable.”

Other lawyers chalk up such cases to sheer stupidity.

Griffith, who was released on shock probation after serving about six months behind bars, didn't respond to messages left on his Facebook page, which no longer shows him drinking.

Otto, who has moved to St. Louis, also didn't answer messages left on her now-sanitized page.

Roby is in prison and his lawyer, Scott C. Cox, said he had no comment, other than to note that his client's Facebook postings were only part of the reason his probation was revoked — as was true in some of the other revocations. Roby also was cited for failure to report to his probation officer and changing his address without notifying the officer.

The Posting 'High'
Experts on the psychology of social media, including Joseph Mazer, an assistant professor of communications at Clemson University, said it is so easy to post information online that the convenience “overrides a person's ability to critically consider the reach of social networking sites.”

Kieron O'Hara, who studies issues of trust and privacy online as a senior research fellow at the University of Southampton in the United Kingdom, said, “Posting is such a ‘high' that people will often ignore what they really know is their best interests.

“We shouldn't underestimate how pleasurable and addictive some people find social networking” — and that in turn causes people to “give their privacy away so cheaply,” he said in an email.

Writing last month in a blog for the Houston Chronicle — “Facebook and the 5th Amendment” — former prosecutor Murray Newman said “bad posting decisions” are more prevalent among younger defendants, who seem to think they'll be more popular among their peer group by showing how “thuggish” they are.
Postings are fair game

But Newman said Facebook confessions aren't limited to the young and foolish.

“Drunk-driving defendants of all ages seem to enjoy taking pictures of themselves at closing time looking like Keith Richards on a bender,” he wrote.

In an interview, he said, “I tell clients to consider Facebook their own personal probation officer and that it will report you for the slightest violation.”

Civil libertarians seem to have no problem with corrections officials monitoring social-media sites.

“To the extent individuals voluntarily post information on social-networking sites that are accessible to others, the use of that information to establish a violation of probation or parole is likely to withstand any claims of invasion of privacy by the poster,” Bill Sharp, a staff attorney for the ACLU of Kentucky, said in an email.

He added, however, that courts must be careful to verify the defendant really was the poster. He cited a recent decision in which the Maryland Supreme Court held that a judge improperly admitted information from a social-networking site where the only evidence that the page belonged to a witness was that it contained his birth date and photograph.

In another recent Maryland case, a judge said photographs of a man on probation for a drunk-driving death — one showing him sitting next to a nearly full bottle of rum and another next to an empty bottle — didn't on their own justify revocation, absent evidence he drank the alcohol, which he denied[.]

Cyclist Killed in LA Road Rage Incident

2011-07-20T20:24:00.000-04:00

The LA Times is reporting on the cyclist death allegedly caused by a driver in a road rage incident not involving the cyclist. Here's the LAT account:

A driver in an apparent road-rage incident that left a bicyclist dead in downtown Los Angeles has been released, though police say he may still be criminally charged. A 62-year-old bicyclist was killed Tuesday after being struck by one of two drivers in the midst of a dispute near 8th and Francisco streets. The crash was still under investigation.

The driver of a Chevrolet Avalanche, a 37-year-old man, was detained for questioning by police. He has since been released, with a “possibility of filing later on,” said LAPD Sgt. J. Jennerson. The driver of a Kia compact car, a 23-year-old woman, remained on the scene but was not detained, police said.

The drivers apparently had some dispute while heading north on Figueroa Street.They turned left on 8th Street, and near Francisco Street, the driver of the Avalanche tried to pass the Kia on the right. While doing so, he allegedly struck the bicyclist, police said.
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Cycling in a urban setting can be terrifying enough but to be the innocent victim of some knucklehead in the throes of road rage is sickening. I am reminded of the Dr. Thompson assault case which also came out of LA and which I blawged extensively about throughout the latter part of 2009. The former physician is now doing 8 years for his near-deadly assault on cyclists. We are targets, out there.

Quote of the Day: "I'm not really happy about too many things with the practice of law right now."

2011-07-20T14:21:00.001-04:00

Twenty-nine year old New Hampshire lawyer, Dan Dargon, is already fed up with the practice of law. He and his defunct law firm are currently on the hook to the tune of $330,000 in fines for illegal mortgage modification. This is Maddie Hanna's account for the Concord Monitor:

Concord attorney Dan Dargon and his disbanded law firm have been ordered by the state Banking Department to pay more than $330,000 in fines and restitution for modifying mortgages without a license. But it's unclear whether the department - or the 71 clients it decided were entitled to restitution - will see any of the money.

"It's not going to happen," Dargon said yesterday. "Number one, I don't have a half a million dollars or whatever to pay. I'm 29 years old, I'm a young lawyer. I'm actually going into the Army late October. I'm not really happy about too many things with the practice of law right now."

Dargon, who started his own firm after graduating from the former Franklin Pierce Law Center in 2008, closed the doors to the North State Street business last fall as the Banking Department pursued an investigation into its practice of modifying mortgages without a state license.

The licensing requirement had only recently been enacted by the Legislature, and Dargon took the Banking Department to court over the dispute, maintaining he and his staff of 30 attorneys and paralegals were practicing law - not working as loan originators - and were therefore exempt from oversight by banking investigators. But after several days of administrative hearings last winter, a presiding officer decided Dargon and his lawyers had, in fact, broken state law by working as unlicensed loan originators, entering into "best efforts" contracts and collecting advance fees from clients.

The officer, Stephen Judge, didn't decide until the end of last month how much Dargon would be fined for the violations. He found Dargon's firm responsible for paying $129,500 in fines and $147,196 in restitution, with amounts ranging from $500 to $3,400 per client.

Judge also found Dargon individually liable for an additional $56,000 in fines.

Although his firm no longer exists, nine of Dargon's former employees are named in Judge's order and could also be liable for the fines. "If there is no firm, we're going to chase the individuals," Richard Arcand, a spokesman for the Banking Department, said yesterday.

And if no one pays, Arcand said the department will take Dargon to court for the money - "on behalf of consumers."

"We're going to be investigating the appropriate course of legal action, which could involve the attorney general or the court system," Arcand said. The order against Dargon includes a provision that if he declares bankruptcy, he will have to list in his petition each person to whom he owes restitution.

Dargon, meanwhile, said he intends to file a motion for reconsideration. If the department rejects it, he said he'll appeal to the state Supreme Court, confident that new regulations from the U.S. Department of Housing and Urban Development would lead the justices to side in his favor. New Hampshire enacted its licensing requirement for loan originators in light of the federal SAFE Act, passed in 2008 to enhance consumer protection and cut down on fraud in the mortgage industry.

Dargon, whose firm was filing loan modification requests to get clients lower monthly payments on their mortgages, has argued that the kind of work performed by attorneys at his firm isn't regulated by the SAFE Act, a position that ran contrary to the Banking Department's interpretation.

But Dargon pointed yesterday to new HUD regulations that say the licensing requirement for loan originators wasn't meant to regulate activities that constitute the practice of law by an attorney [ . . . ]

Several hundred of Dargon's clients were waiting to hear from their lenders when his firm closed last fall. A number of those clients called the Monitor, alarmed that they suddenly hadn't been able to reach their lawyers and angry that they were never informed of the firm's closure.

Dargon's conduct also prompted a former employee to file a complaint with the Attorney Discipline Office, which doesn't make grievances against attorneys public until a certain stage in its investigation. The office has issued no public decision.

Dargon yesterday maintained that he had done what he could to help the clients who hadn't heard back from their lenders, paying lawyers to represent them with the money he got from liquidating the firm's assets.

"If I was the heartless capitalist, I could have taken the money and run," he said. He said he was still upset by the way he felt the Banking Department portrayed him in court and in administrative proceedings - part of the reason he's joining the Army, he said.

"I was really insulted to have them take my reputation, use it as toilet paper," said Dargon, who heads to basic training in October and said he has lost 80 pounds in preparation for enlistment. "Part of me said, I'll show you what I'm capable of. I'm capable of selfless service."
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Scott Greenfield has a running trope over at the Simple Justice blawg relating to the various ways young attorneys find themselves over their heads. Here's another example.

Martin Frost: Ex-Congressman, Lawyer, Proud Thief

2011-07-20T10:52:00.001-04:00

Martin Frost

Tristan Hallman a reporter for the Washington, D.C. bureau of the Dallas Morning News is marveling over ex-congressman, and lawyer, Martin Frost's admission in a Politico essay to his theft of photos from the photo morgue at the Dallas Morning News. This is what Frost had to say:

"The story about female public figures and photos is not new, unfortunately. About 40 years ago, I clerked for a terrific federal judge, Sarah Hughes (pic), who was 74 at the time. She often complained when The Dallas Morning News ran unflattering photos of her.

Judge Sarah Hughes

This went on for a while. One day I went down to the paper’s photo morgue — where a publication’s pictures were kept on file — and I took some of the offending photos. This was before digital photographs — so once a picture was gone, it was really gone."

Judge Hughes is a significant historical figure having administered the oath of office to LBJ aboard Air Force One following the assassinatio of John F. Kennedy.
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Pretty obnoxious bit of bragging by Mr. Frost. Could cost him a disciplinary hit--not the underlying act, but the bragging about it.

Eyewitness to Sexual Abuse

2011-07-20T09:37:00.000-04:00

The most disturbing story of the day is Sam Stanton's story at the Sacramento Bee of the school receptionist who testified that she witnessed sexual abuse by a local principal, that she reported what she saw and that the shool authorities took no action. If this story surprises you, you have not been paying attention to the news reports about the Catholic Clergy Sex Abuse scandals or sex scandals in the schools around the country over the last decade. What's unusual in Stanton's SacBee account is the eyewitness testimony. Here's an excerpt:

A worker at Creative Frontiers School claimed today she was aware of at least two instances of possible abuse in the last year at the private Citrus Heights school, including one that she says she witnessed herself involving Principal Robert B. Adams.

Irma Mertens, a 62-year-old receptionist at the school until she quit in May, said in an interview with The Bee at her home that she surprised Adams when she walked into the school's administrative office last summer and found him tending to a 7- or 8-year-old girl in a swim suit.

Mertens claims Adams did not hear her enter the office and that she saw the principal rubbing the girl and touching her in a physically and sexually inappropriate manner. Mertens said she reported the incident the next day to school administrator Cynthia Higgins but that Higgins never passed the report on to state officials or police.

Mertens' allegations first surfaced Monday in the state Department of Social Services' formal accusation against Adams. Mertens' allegations come one day after the state and Citrus Heights police shut the school down and announced they were investigating "multiple allegations of child molestation."

Police said Adams is "the focus of the investigation," but no charges have been filed. Adams did not respond to calls Monday or today, but his attorney has called the allegations "absolutely untrue."

Higgins refused to comment when visited at her Citrus Heights home this afternoon. "I do not want to talk about anything involving her at all," Higgins said.

Mertens, who is named as a witness in a complaint against the school by the state Department of Social Services, said she did not confront Adams at the time but told Higgins because, as administrator, it was her job to immediately report the incident. The state's license revocation complaint against the school indicates that Higgins did not report the allegation, and Mertens said Higgins brushed the incident aside.

Mertens said she continued to work at the facility until May, when she heard of another instance involving Adams. This time, she said in a nearly hour-long interview, she heard from a teacher that a 3-year-old student had been pulled from the school by parents after the child claimed "Mr. Bob touched my pee-pee."

"Mr. Bob" is the nickname students and parents gave Adams, who has been described by some parents as enormously popular at the school.
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Are we getting beyond denial, yet?

The Albuquerque Chief Criminal Judge Is a Rapist?

2011-07-20T08:16:00.002-04:00

Albuquerque's 2d Judicial District Chief Judge, "Pat" Murdoch (pic) was arrested after being caught on video raping a prostitute. Here's the story from kasa.com via Debra Cassens Weiss at the ABAJournal.com this morning:

District Judge Albert "Pat" Murdoch was arrested Tuesday afternoon on charges including rape. According to the arrest warrant, the charges stem from a secret video tape the prostitute made of the judge in his own bedroom.

Murdoch is the chief criminal judge in the 2nd Judicial District in Albuquerque. He is charged with criminal sexual penetration and intimidation of a witness.

The criminal complaint states undercover police received a tip of a sex tape with the judge and a prostitute. The undercover officers bought the tape from the woman and her pimp for $400. They say when they watched it they saw Judge Murdoch having sex with that prostitute.

Police say at one point on the tape Murdoch forced himself on the woman to perform oral sex on her after she told him no. Officers searched Murdoch's home, then went to District Court to arrest him.

Murdoch is being held in jail on a $50,000 bond. Police say he is being kept away from other inmates for his own safety.
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Debra Cassens Weiss includes the amazing detail that this judge sentenced a former police officer guilty of rape to probation because Judge Murdoch "reasoned that prison would be more difficult for a policeman than other rape defendants."

These stories are so disturbing, because you assume and the profession assumes that the folks in the robe are above the craziness of the rest of mankind. One of the things this blawg stands for is the reality that some pretty flawed men and women wear the robe and mete out justice. Albuquerque is waking up to that reality this morning. While we do not know the facts, look for other alleged victims to come forward as we have come to expect in many of these situations over the last couple of years.

"Bra-Lift" Searches of Female Students, Unconstitutionally Intrusive

2011-07-20T07:31:00.001-04:00

I don't think I've ever come across the concept of the "Bra-Lift" until I saw Martha Waggoner's article at the Charlotte Observer, this morning. Here's an excerpt:

A search for pills at an alternative school that required female students to untuck their shirts and pull out their bras with their thumbs was "degrading, demeaning and highly intrusive," a divided state Court of Appeals ruled Tuesday.

The court ruled 2-1 that Brunswick County Academy overstepped when it required the "bra-lift" search on Nov. 5, 2008. The judges mentioned several reasons for their decision, including that the tip about pills wasn't specific and that there's no indication that the underwear of male students also was searched. They also mention that a male law enforcement officer observed all the searches, regardless of the sex of the student.

"Here, despite the complete lack of any reasonable belief that any single student possessed any pills, the Academy searched all 134 of its students," said the ruling, written by Judge Cheri Beasley. "Further, the school required all of the girls to perform the 'bra lift' even if nothing revealed during the less intrusive part of the search suggested that the student was hiding contraband in her underwear."

Brunswick County schools Superintendent Edward Pruden Jr. said Tuesday the schools plan to conform their procedures with the law.
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I generally don't get too agitated by the idea that my kid is subjected to intrusive securtiy or searches--after all he goes to a large OurTown public high school. But this sort of intrustion is pretty outrageous, but we are voluntarily giving up our freedoms and liberty in exchange for the illusion of security.

At this link, the court's opinion.

Back to the Future?

2011-07-20T06:35:00.001-04:00

Louisiana Lawyer, Christian Goudeau represented a client in a claim against the Lousiana Patient's Compensation Fund. While the claim was pending Goudeau's client died which in many instances and most states operates to abate the claim. Did Goudeau give up the ghost? Nah, we wouldn't be writing about him if he did...would we?

In fact, Goudeau continued trying to negotiate a claim for his deceased client going so far to argue that the expired-client should receive compensation for future medical expenses! Love it.

At the link, the recommendation of the Louisiana disciplinary authorities with all credit to the Legal Profession blawg.

Penis Pump Judge Is Back in the News

2011-07-20T06:11:00.002-04:00

Oklahoma's ex-Judge Donald Thompson is back in the news. Thompson (mugshot) is being held on $75,000 bond after being arrested for DUI and possession of a controlled substance. And yes, this is the same Donald Thompson of the Penis Pump fame.

Thompson was a long time serving Creek County judge (pic) but was charged with masturbating and using a penis pump while on the bench hearing cases. Including in one case a murder trial. Thompson was convicted in 2006 on four felony counts of indecent exposure and he served 20 months of a 4 year sentence. He was released in 2008 but his problems with alcohol and substance abuse appear not to have abated.

Circumstantial Evidence of DUI Conviction Upheld by Wisconsin Supremes

2011-07-19T14:21:00.001-04:00

Bruce Vielmetti at the Journal Sentinel writes about the conviction for DUI based solely on circumstantial evidence:

Gregg B. Kandutsch was bombed when police arrested him at his wife's home in Wausau in 2006. He wasn't driving, or even in a motor vehicle, and no one saw him driving to get there. So how did prosecutors convict him of his fifth-offense drunken driving?

They relied on circumstantial evidence, the kind commonly used to prove many other crimes but extremely rare in drunken driving cases. Kandutsch appealed, but on Tuesday the Wisconsin Supreme Court upheld his conviction. Kandutsch was done in by the electronic monitoring device he was wearing while on probation for other offenses. It showed he left his mother's house in Rib Mountain about 15 minutes before he was arrested in Wausau. Jurors concluded he must have driven himself there.

Kandutsch challenged the admissibility of a computer-generated report from his monitoring device, offered without expert testimony. According to the opinion, police arrested Kandutsch after his estranged wife called to say he had broken into her home. At the hospital where he was treated for injuries suffered when he broke in, Kandutsch had a 0.23 blood-alcohol level. His green van was parked near his wife's house, so police charged him with DUI.
Kandutsch argued that he had left his mother's home in Rib Mountain much earlier in the night. After he knocked on his wife's door and got no answer, he walked to the nearby Cop Shop tavern, drank a pitcher of beer and $20 worth of Southern Comfort and then tried to break in.

The supreme court agreed with the appeals court that the technology of the electonic ankle bracelet monitor was no so complex as to require an expert's testimony, noting that it has been used successfully for years without problems. The court also found that the probation agents who installed and used the home monitoring system for Kandutsch laid an adequate foundation for the evidence that he went out of range at 10:03 p.m., not 9 p.m. as he claimed.

Chief Justice Shirley Abrahamson dissented, joined by Justice Ann Walsh Bradley.

"I disagree with the majority's conclusion that the testimony of the two Department of Corrections (DOC) agents was sufficient to admit the report generated by the electronic monitoring device that was admitted as evidence in the present case," Abrahamson wrote." The underlying scientific principles have not been presumed reliable based upon a statute, in a prior determination in our case law, or by resort to sources whose accuracy cannot reasonably be questioned such that taking judicial notice is appropriate."

She noted that reliance on technology doesn't necessarily make it reliable in court, citing law enforcement and corrections' common use of polygraphs, the results of which are not admissible in court.
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So there you are. Don't drink and drive while you are on home monitoring.

Two Words No Man Likes to Hear: Botched Circumcision

2011-07-19T09:45:00.000-04:00

A year or more, ago, the Bad Lawyer blawg featured a couple of posts on botched circumcision verdicts and lawsuits. This morning the ABAJournal blawg reports on confirmation of a $4.6 million dollar verdict in California for a botched circumcision. This "approval" by the court was necessary because of a defense challenge based on legislated malpractice caps.

I was planning to revisit this subject because of the proposed San Francisco ban on circumcision which is much in the news due to an ACLU lawsuit disputing the constitutionality of the proposed ban based on religious freedoms.

You Aren't Covered!

2011-07-19T09:18:00.001-04:00

The Oregon State Bar Liability Insurance program is refusing to cover a law firm that suffered a $150,000 loss to a thieving secretary. According to the Courthouse New Service, the law firm knew they were hiring a secretary with a propensity to embezzle (image, Janet Leigh, the greatest fictional embezzling secretary); and, as a consequence the Bar Association insurance carrier denied liability. This is an excerpt form the CNS stroy:

Oregon State Bar says its Professional Liability Fund should not have to cover a law firm that hired a secretary with a history of theft who forged checks and embezzled $150,000 from an estate.

The Oregon State Bar Professional Liability Fund sued the Williamson & Williamson law firm and the estate involved in the alleged embezzlement, in Multnomah County Court. The Bar says it does not owe coverage to the Williamson firm because it knew the secretary had a history of theft.

In 2002 the Williamson firm represented the estate of Marjorie Hope Morton in a probate action in Columbia County.

In March 2010, an attorney for the Morton Estate told the Oregon Bar that Shirley Paul, a legal secretary for Williamson & Williamson, had embezzled more than $150,000 from the estate's checking account, according to the complaint.

That letter "was the first written notification ever provided to the PLF, by anyone, concerning Paul's embezzlement of funds from checking accounts handled by and/or in the possession of Williamson & Williamson," the complaint states.

In July 2010, the estate's trustee Roy Rogers sued Williamson & Williamson for legal malpractice and breach of fiduciary duties in Multnomah County.

In that action, Rogers said Paul had "forged checks and embezzled funds from the Estate by making out checks payable to herself, forging the signature of an authorized signer, negotiating the checks, and keeping the proceeds or converting them to her own use."

Rogers said he did not know about the embezzlement until Paul herself contacted him from prison, in February 2010. He said the Williamson firm should have supervised and reviewed the checks she wrote.

In November 2010, the Columbia County Court executed an escrow agreement on the coverage dispute. In January this year, the PLF "advanced funds in the amount of $184,054.00, in full and final settlement of the Morton-related claims" from the underlying action, which it says resolved all claims by the estate.

The Williamson estate denied a claim submitted by the PLF, which led to the current lawsuit.

"Through this action, the PLF does not seek reimbursement of the defense costs it incurred to provide a defense in the underlying action," the complaint states. "Instead, the subject at issue in this action is whether or not the PLF has any duty to provide indemnity to any covered party under the applicable PLF Plan for the Morton-related claims."

The PLF says it does not owe the Williamson firm any legal duty because it knew that Shirley Paul had a history of theft and embezzlement since at least 2000. It says the firm also knew Paul had a gambling habit.

"After her thievery and established pattern and practice of dishonesty involving checks was first discovered, Paul again was provided access to checkbooks and entrusted to resume her management of checking accounts handled at the law firm," according to the complaint.

Because the firm knew of Paul's history of theft, the loss of money "was no longer unexpected or fortuitous and, therefore, ceased to constitute an insurable or contingent risk of liability or loss that could be insured," the Bar says.
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Insurance policy language is written by insurance companies in a manner intended to permit insuarnce companies to deny coverage in many instances. We have talked about this previously, and we will revisit the subject soon.

Creative DUI Sentencing

2011-07-19T07:11:00.000-04:00

Arelis R. Hernández, a reporter at the Orlando Sentinel, has this profile of Judge Carmine Bravo (pic) who has undertaken to systematically address drunk driving sentencing:

You've seen them before: the lollipop-shaped markers along state roads adorned with fake flowers, fading photographs or discolored stuffed animals. As you drive by, the words "Drive Safely" come into view in bold, blunt letters. Perhaps you slow down a bit. Maybe you stop texting. You might place a second hand on the steering wheel.

It's more likely you won't pay any attention at all. But hundreds of Florida families wish you would. And if you drive drunk, recklessly or commit repeat traffic offenses in Seminole County, Judge Carmine Bravo will make sure you start noticing.

The 18th Circuit Court judge has always been known for his creative sentences, but as one DUI case after another came across his desk, Bravo said he wanted to find a way to educate and not just punish offenders. Since 2004, he has sentenced drivers convicted of misdemeanor traffic offenses to writing 500-word essays about the people memorialized in roadside markers.

"Sentencing should include something punitive, educational and remedial if possible," Bravo said. "Many don't realize how irresponsible they can be on the road. It takes focus, care and maturity to drive."

The Florida Department of Transportation has been providing the round aluminum signs free to families of crash victims since 1997, said spokesman Steve Olson. His agency's maintenance office in Oviedo, which covers Seminole and north Orange counties, receives about 20 requests a year — particularly along Interstate 4, State Road 46 and S.R. 50.

In Bravo's Marker program, offenders are ordered to research five crash victims, retrieve accident reports, visit the memorial site, make some kind of improvement while there and take a picture. Through the years, the judge has received hundreds of reports; some were handwritten, while others were typed or bound in plastic folders.

Woman told story of sisters in angel-themed scrapbook

The essay rubric was simple. Writers were to include details about the crash, the impact it had on the victim's family and how it could have been avoided. They often included their own reflections.

"Ain't a buzz in the world worth somebody's life," wrote Elijah Ortiz on loose-leaf after being found guilty of drunken driving last year. "Cab fare is cheaper than a funeral and DUI charge." Some people took the project so seriously that they recovered photos of crash scenes and interviewed the victim's relatives.

Nelimar Baello was encouraged by her attorney to complete the program after she landed in Bravo's courtroom on a speeding charge in 2005. The 33-year-old woman placed each typed page of her work in a plastic page protector and tucked them in an angel-themed pink scrapbook.

Baello said she was uncomfortable about "going to a place where someone died, but then you understand the reality that when you speed you could end up dying or killing someone else." She focused part of her essay on two sisters, ages 2 and 5, who were killed in 2004 when another driver ran a red light and smashed into the family car.

"I have learned a lesson by doing this project. … Feeling the agony of what occurred in these sites, it made me think that innocent people could die due to reckless driving," she wrote.
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I like and agree with these sorts of creative efforts; although I have my doubts about whether there is any empirical value. It would be nice to see some sort of statistical study--enough of these programs exist, although DUI sentencing isn't standardized anywhere. Nonetheless, it would be interesting to see some sort of 5 year follow-up for defendants who undergo creative sentencing versus punitive programming. The thing is--does writing an essay help a drunk driver make some sort of neurological connection between his or her act of impaired driving and death?

NC Death Penalty Lawyer, Lisa Dubs, Profiled

2011-07-19T06:43:00.000-04:00

Dubs reacts to a jury verdict acquitting Michael Mead

The Charlotte Observer profiles death penalty defense attorney Lisa Dubs. Here's another great attorney doing remarkable work. The story needs nothing more from me apart from my admiration and respect.

Quartzsite, AZ Is at War!

2011-07-18T13:05:00.000-04:00

Quartzsite AZ caught my attention a week or two ago when I saw the following YouTube video from a City Council meeting. The lady, Jennifer Jade being arrested at the microphone is a local news publisher. The person repeatly demanding that the police desist is the town's Mayor. You can see how much influence he has:

Sunday, the Arizona Republic published its take on the disaster in little Quartzsite. Apparently, the insanity in Maricopa and Phoenix is metastasizing. This is from Dennis Wagner's story at AZCentral:

There may be debate as to who is right or which side is winning. But it's undisputed that municipal business has become a sideshow to infighting that disrupts nearly every town department and meeting.

Mayor Ed Foster, newspaper publisher Jennifer "Jade" Jones and most of the police officers in Quartzsite say the Town Council and police chief ignore Arizona's public-records law and misuse police power to silence their critics.

"There's a cabal running Quartzsite," Foster said, "and I'm about to take it down."

Council members and the police chief, in turn, say their critics are simply a bunch of agitators trying to stir up trouble.

By last Sunday, six days after the video was posted on YouTube, the political firestorm was so heated that council members announced plans to conduct future meetings without public notice and to prohibit comments from citizens.

Foster said that decision was made in violation of Arizona law. "I refused to be a part of an illegal meeting behind closed doors," he said. "I announced the meeting was canceled, but they went right ahead."

The incident is just the latest in a circus act that for years has paralyzed the town: dysfunction and distrust fueled by a historical feud, recall attempts and allegations of public malfeasance, abuse of power and government secrets.

In the past three years alone, Quartzsite has been through five mayors and a trio of recall elections. (Foster, who has been mayor since 2010, is facing a recall vote next month.) The municipal government is buried in costly lawsuits.

And at least 10 Quartzsite activists, including the mayor and four past council members or candidates, said they were charged with petty crimes after criticizing the Town Council and Police Chief Jeff Gilbert.

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On second thought, maybe the municipal cancer began with a Quartzsite-tumor.

According to media reports the Mayor and others have been, vainly, begging the Arizona attorney general to investigate. Of course, in Arizona the state government is too busy with defending anti-immigration laws, enacting restrictive abortion legislation and (yeehaw!) protecting whack-job rights to guns to bother with a little something like free speech, the right to assembly and municipal governance.

Post a Pic of Your Penis--That'll Be a Disbarment

2011-07-18T11:07:00.000-04:00

Cesar Baca, a Colorado and Missouri attorney has been getting disbarred all over the place following his conviction on indecent exposure charges following his posting of several penis pics to a person he mistakenly assumed to be a 14 year old teenage girl. Kansas is the latest state to yank his ticket.

Hat Tip to Courthouse News Service for original article.

The Exculpatory "No"

2011-07-18T08:43:00.000-04:00

Walter Olson at Overlawyered has an interesting article on prosecutions for "lying" contrasting these prosecutions with what used to be called "the exculpatory 'no.'"

Cuyahoga County Common Pleas judge, Bridgett McCafferty (pic, entering court) was scheduled to be sentenced on her conviction for multiple counts of lying to the FBI. That sentencing hearing was put off to August--her convictions falls well within this discussion. As I have said repeatedly, this "disgraced" judge was prosecuted for nothing more than "lying" in and of itself. She committed no underlying crime apart from stupidity and a breach of ethics. Her lies to the FBI were nothing more than an attempt to deny unethical phone calls she had with her political bosses that asked for favors that in and of themselves appear not to have impacted the outcome of a case she supervised. McCafferty's career is gone, she lost her law license, and reputation but, of course, that's not enough, the federal prosecutor wants her to spend years in the federal penitentiary.

Another Big Law Bad Guy Caught In Child Porn Distribution and Possession

2011-07-18T08:20:00.001-04:00

Late last week a capital markets lawyer and partner at Allen & Overy (which according to its website is a major international law firm practicing in 37 cities), Edward De Sear (pic) was arrested by the FBI and charged with distributing child pornography.

According to the Village Voice: The complaint filed by the FBI includes graphic descriptions of three videos and images they had traced back to an IP address registered to De Sear. Two feature an adult male in sexual acts with a pre-pubescent boy, and another depicts an adult male with a pre-pubescent female who was bound by rope.

During the execution of the search warrant, on or about July 14, 2011, law enforcement agents interviewed EDWARD DE SEAR, who admitted, in substance and in part, that

(1) he downloads and shares child pornography using his laptop;
(2) he uses the P2P network to download and share child pornography;
(3) he is the only person in his home who uses the P2P network; and
(4) he receives sexual gratification from viewing child pornography

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Last year, I passed along many examples of professionals of all sorts involved in this repulsive stuff.

On some psychological level I get how a person gets into the neurological habit of clicking on images and downloading this garbage. But I can't fathom the act of making it, producing computer files comprised of this disturbing stuff, and distributing it. You would think a lawyer would completely understand the perniciousness, let alone the danger in these criminal acts. But as we saw last year, Judges, lawyers, child care workers, psychologists, physicians, bankers and law enforcement are not immune from committing these crimes.

In addition, the FBI complaint states that:

Lying, Hypocrite, Lawyer, Family-Values Legislator Quits

2011-07-18T07:08:00.001-04:00

The Columbus Dispatch reports that the lying, hypocrite, lawyer, and family-values Cincinnati-area legislator Robert Mecklenborg (pic) has resigned from the Ohio General Assembly. But not before Mecklenborg worked out the most advantageous way he could stick it to Ohio taxpayers for salary and pension.

Here's reporter Darrel Rowland's story:

An embattled Cincinnati-area state representative quit yesterday afternoon, caught up in controversy after being arrested for drunken driving in Indiana with a stripper in his car and Viagra in his system.

By making his resignation effective Aug. 2, Robert Mecklenborg, R-Green Township, ensured himself that he will be paid for all of July; if he had quit this month, his legislative salary would have been prorated. He also gets a bit more from the state retirement system.

"My recent actions have become a distraction to the additional important work that lies ahead for the members of the 129th General Assembly. Therefore, it is with a heavy heart that I resign from the Ohio House of Representatives," the married father of three said in a statement today.

"Most importantly, I want to sincerely apologize for any pain and embarrassment I have caused my family, my constituents, and my colleagues. I will be forever grateful to the many constituents and colleagues who have urged me to stay, but I believe it is in the best interests of my family and my constituents to step aside during this difficult time."

His two-sentence resignation letter to House Speaker William G. Batchelder, R-Medina, was sent electronically yesterday, although it had been in the works since Saturday, said Mike Dittoe, spokesman for House Republicans. The news was emailed to reporters near the conclusion of yesterday's women's World Cup final soccer match.

Batchelder, who called for Mecklenborg to step down last week and indicated that the resignation was only a matter of time, said in a statement, "Bob has admitted his mistakes and, while difficult, I believe he has made the appropriate decision to step down as a member of the Ohio House of Representatives."

The House's No. 2 GOP leader, Lou Blessing of Cincinnati, said in the same statement: "As a friend and fellow member from Hamilton County, I believe Bob Mecklenborg has provided valuable insight on a number of legislative issues over the years. His service will be missed, but I am pleased that he has appropriately decided to put the interests of his family and constituents first by stepping down from the Ohio House."

Ohio Democratic Chairman Chris Redfern, who had earlier called on Mecklenborg to quit, said a veteran lawmaker bears a heavier burden of accountability. "He's not a freshman legislator who had a bad weekend," Redfern said. "It was clear he was going to put others at risk as well as his female passenger."

The chairman chided Mecklenborg for lying three times: to the arresting officer, to the Ohio Bureau of Motor Vehicles and to those around him.

The latest blow against the GOP representative came last week when it was revealed that four days after he was charged with DUI, Mecklenborg signed a driver's-license application in Ohio saying that he did not have any outstanding traffic citations. Mecklenborg, 59, had an expired driver's license when he was pulled over by an Indiana state trooper on April 23.

A three-term legislator who did not attend last week's House session, he has pleaded not guilty to DUI and is scheduled to appear in court on July 26. A dashboard camera video showed him repeatedly telling the trooper that he had not had anything to drink, even as he failed three field sobriety tests.

Dittoe said Batchelder doesn't regret not calling for Mecklenborg's resignation earlier. Despite Redfern's suspicions to the contrary, Dittoe said the speaker and his staff didn't find out about the indiscretions until early on June 29, shortly before the incident was reported in the press [...]
Mecklenborg was chairman of the House State Government and Elections Committee and sponsored a controversial bill that would require Ohioans to provide a photo ID before being allowed to vote. He also belonged to the Judiciary and Ethics Committee [...]
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Ihe video of the arrest shows Mecklenborg repeatedly lying to the arresting officer and attempting to deceive the Indiana officer. This and Mecklenborg's fraudulent license application may cause some bar disciplinary grief for Mecklenborg. We'll see.

Priceless: Geoffrey Fieger Advises Casey Anthony to Stay Out of Media Spotlight

2011-07-18T06:02:00.000-04:00

That's right folks, Mouthpiece Hall of Infamy media-whore Geoffrey Fieger advises Casey Anthony to stay out of the media spotlight. Apparently, Fieger feels threatened.

Black Men Live Longer in Prison than Out?

2011-07-18T05:36:00.001-04:00

A study of North Carolina inmates has been lighting up certain blawgs/blogs over at the end of last week and over the weekend. According to the study black men may survive longer in prison than on the streets, specifically, "Black men are half as likely to die at any given time if they're in prison than if they aren't[.]"

Intuitively, this makes a lot of sense.

Let me tell you a story. On the morning that I left FCI, Morgantown I was in an area of the institution called R & D, reception and discharge, changing into my street clothes from prison khakis. A young black guy was also dressing in the clothes his people sent in. His clothes were so out-sized that I remarked that he must have lost a lot of weight. He said that had he not gone to jail he would have likely died from hypertension illness that he did not know he suffered from. Setting aside the perils that live on the streets represent, the prison diet (as bad as it is) and the medical care in jail for certain populations is so much better than what was available to these guys in Detroit, Cleveland, Pittsburgh, D.C. and Baltimore where a lot of the population at Morgantown hailed from.

Then you subtract out drugs and alcohol, guns, and gang violence life in prison can be an objective improvement.

"Hello, I'm Johnny Cash"

2011-07-17T17:28:00.000-04:00

When I started the Bad Lawyer blawg I never envisioned being able to write about Johnny Cash, but the Tennessean reports on Nashville-based Sun Records' lawsuit stemming from a licensing deal with Compadre Records over the remix of some 1950s recordings that have appeared in the soundtrack of a television series called Zombieland. This is an excerpt from Brandon Gee's story at the Tennessean:

[S]un Entertainment Corp. is suing a Houston record company over the use of Johnny Cash recordings in advertisements, including a trailer for the movie “Zombieland” that featured a remixed version of “Country Boy" According to the lawsuit, Sun entered into a licensing agreement in 2007 with Compadre Records that allowed the label to remix “Johnny Cash — The Complete Sun Recordings — 1955-1958” for a new album.

[ . . . ] Specifically, Sun alleges that it has not seen its share of $40,000 that Compadre was paid by the producers of “Zombieland,” $23,250 that Compadre was paid by ABC for its use of the same remixed song in promotional advertisements for the CMA Music Festival and Awards, or $70,000 that Compadre was paid by Columbia for its use of the remixed version of “Get Rhythm” in an advertising campaign.

Sun accuses Compadre of breach of contract and copyright infringement. The label has not yet responded to the lawsuit, which is pending in the U.S. District Court in Nashville."
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I have some not very well-thought-out ideas about lawsuits over intellectual property and the fair use doctrine particularly as it relates to artists using original material in new works of art, and small-fry collectors being sued into oblivion by the RIAA. That is not what this case is about. This is an argument by some major corporations having a pissing contest about dollars.

But if you knew the historty . . . well, it's very cool.

Sun Records of Memphis was the brainchild of Sam Phillips, (1923-2003), a law school dropout. After leaving the service, Phillips worked as a deejay and engineer at WLAY in Muscle Shoals, Alabama. By 1946 he hosted a daily show at WREC, Memphis called “Songs of the West.” At WREC Phillips developed the signature sound that he would take into the recording studios. This recorded sound was so good that he was hired to make recordings for other broadcasters which were sent out for playback around the region. After leaving radio he provided sound engineering for the Memphis Recording Service and by 1952 at own Sun Records.

With “Jackie Brenston (Ike Turner's sax man) and his Delta Cats,” Phillips recorded the ur-rock and R&B hit “Rocket 88,” about the 1951 Oldsmobile 88. Some historians call this the first true rock records.

Elvis Presley came to Sun Records paying $4 to record a couple of songs for his mother’s birthday. In June and July 1954, at the urging of his secretary, Sam Phillips invited Elvis Presley back to Sun to record a couple of other "sides" including a brilliant song called “That’s All Right, Mama,” (Sun 204). By tradition it is said that with Elvis Presley, Sun Records and Sam Phillips mashed together white musicians with black music, country music and rhythm and blues thus igniting the rock and roll era. Eventually, Sun Records sold Elvis' contract to RCA and Col. Tom Parker for $40,000, a then unheard of sum. But before Elvis departed Sam Phillips recruited other top talent including Jerry Lee Lewis, Carl Perkins, and Johnny Cash who on December 4, 1956 recorded and released an album called the Million Dollar Quartet. The resulting recording not all that impressive, but the session was an amazing historical moment. (pic).

Sam Phillips and Elvis

Johnny Cash was the greatest Sun Records artist in terms of consistency and legacy of work. Sun released seven Johnny Cash albums before Cash moved to Columbia records for the larger part of his career. It is these Sun recordings that are extremely valuable both as content for licensing purpose and as individual records/iconic possessions, themselves. In mint condition these vinyl sides from Sun can go for hundreds of dollars.

But Johnny Cash is so much more than these Sun recordings in the 1950s.

Ar Folsom Prison

Part of the story was Johnny Cash's longevity, his rise and fall and rise again. Part of Cash's legacy was his marriage to the history of country music through June Carter Cash and the Carter family; and part, his amazing progeny: nor only talented children but artistic children. In large part, Johnny Cash embraced the role of patron saint of country music. Johnny Cash is sort of like Kevin Bacon in his degrees of separation to nearly all genres of indigenous American music including Jazz, blues, native american, bluegrass, and pop. Check the YouTube videos with Louis Armstrong, June Carter, Bob Dylan, Bill Monroe, Merle Haggard and Ray Charles--most of which go back to his CBS television show.

Cash in Performance at Folsom Prison

Then there was the late period Johnny Cash. Deeply profound and moving recordings with the heavy metal producer and recording artist, Rick Rubin for American Recordings capturing Johnny Cash in an almost biblical mode. Hit the YouTube archives for some amazing videos, makes the Reese Witherspoon/Joaquin Phoenix movie seem ridiculous and superfluous by comparison.

Oh, and one more thing, Johnny Cash at Folsom Prison and San Quentin are the greatest law-related recordings in western culture.

Judge McCafferty's Sentencing Memorandum

2011-07-16T20:48:00.001-04:00

The Plain Dealer, Ohio's largest paper and reporter Jim McCarty provide us with details from the government's sentencing memorandum in the case of Judge Bridget McCafferty (pic) slated to be sentenced in US District Court in Akron Monday on multiple convictions for lying to the FBI in their investigation into influence-peddling and bribery of Cuyahoga County (Cleveland) judges. This is McCarty's account, it suggests that the Judge had some dark secrets (don't we all?):

Federal prosecutors have accused former Cuyahoga County Common Pleas Judge Bridget McCafferty of intervening on behalf of her boyfriend, an employee of the county auditor's office, after he was caught working out in a gym and hanging out at a tavern during work hours.

Prosecutors also accuse her of misleading the Ohio Supreme Court about her backlog of cases, lying to a Plain Dealer reporter and misrepresenting her academic credentials on a campaign website. The new allegations are included in a memorandum that prosecutors filed late Friday with U.S. District Judge Sara Lioi. The memo argues that McCafferty deserves time behind bars for lying to the FBI agents investigating corruption in county government.

"The false statements to law enforcement was part of a pattern of improper conduct by [McCafferty] and not an aberrant act by an otherwise completely honest, hard-working, law-abiding citizen," the memorandum states.

Prosecutors have not charged McCafferty based on any of their latest allegations, including the aid she gave to her boyfriend. A jury found her guilty in March of lying to the FBI about unethical conversations she had with then-Auditor Frank Russo, then-County Commissioner Jimmy Dimora and construction executive Steven Pumper.

The man is identified only as Public Employee 41 in the memorandum. But the description fits that of Patrick McDermott, 53, of Lakewood, who once lived in McCafferty's home in Westlake, according to property records.

After McDermott was observed at the gym and the Parkview Nite Club (a legendary dive bar featured on the Food Network located) on West 58th Street in Cleveland, his supervisor reported the problem to Russo, a close friend of McCafferty's, according to prosecutors. Russo encouraged the supervisor to "go easy" on McDermott as a favor to McCafferty, the memorandum states. McCafferty subsequently called the supervisor and accused him of having a vendetta against her boyfriend. She downplayed McDermott's absences by explaining that he arrived early for work and spent a significant amount of his time in the field, the memo states.

McCafferty "used her position and her influence to influence personnel decisions in the auditor's office," the memo states. "As a common pleas judge, she should have no role in [McDermott's] dispute with his supervisor." McCafferty's lawyer, Michael Murray, did not return a call seeking comment.

Other accusations that prosecutors intend to present at the sentencing include:

In 2010, McCafferty under-reported by hundreds the number of civil cases pending in her courtroom. She told the Supreme Court that she had 356 cases. But after she was indicted and suspended from her job, and her staff filled out the reports, prosecutors found she actually had 629 civil cases on her docket. McCafferty "always wanted to have the lowest number of active cases as she was worried that The Plain Dealer would write a story about her docket," the memorandum reads.
She made false statements to The Plain Dealer that were published Sept. 24, 2008, saying she knew nothing about the FBI search of her court offices the night before.
She falsely claimed on her campaign website that she graduated summa cum laude from Miami University. She later removed the claim after The Plain Dealer reported the school had no evidence to back it up, and McCafferty could provide no proof of the high honor.

McCafferty is among nearly 50 elected officials, government employees and contractors implicated in the biggest corruption investigation in county history. Russo has pleaded guilty to 21 corruption-related crimes and faces 22 years in prison. Dimora faces racketeering charges but denies wrongdoing. He is scheduled for trial in January.

This former Judge (or "Disgraced Judge" as the Plain Dealer has taken to calling her) is in huge trouble as it relates to her sentencing which is scheduled Monday. The betting among my friends in and around Cleveland is that she's looking at 7 to 10 years.

McCafferty alienated the sentencing judge by filing a frivolous new trial motion which Judge Lioi slammed in a ruling last week as being filled with exaggerations and utterly without merit. Ex-judge McCafferty is an elected former public official caught on surveillance tape doing unethical favors for politicians. And yet, the thing is McCafferty did not commit an underlying crime. McCafferty's offense is solely that she lied to the FBI. Had she welcomed the FBI into her chambers when they came to investigate her role in the influence peddling by her political bosses and had she informed the agents that she would say NOTHING unless counsel was present, she would still be a sitting Cuyahoga County Common Pleas judge....undisgraced. This former judge ranks up there with those amazing elected officials who astound by reason of STUPIDITY.

By the way, want to find out what a lousy person you are? Let our government do a sentencing memorandum on you. I found out for the first time, ever, that my wife was surreptiously providing me with a "luxury car," to wit: an 8 year old Volvo SUV with nearly 200,000 miles on it...aka, our family car. Nothing in my government's sentencing memorandum mentions the part where at 17 years of age I volunteered and served honorably for 3 years in a combat tank unit during the years at the end of the Viet Nam War (albeit, my unit was stationed in Germany 1972-1975.) During these years the government couldn't give away Cadillacs to get young men to enlist in the military but I went fully cognizant that I'd end up in Southeast Asia. In McCafferty's sentencing memorandum we learn, inter alia, that she brazenly tried to protect her loved one. How dare she! Seriously, she pulled strings for her boyfriend . . . this makes it into the government's sentencing memorandum?

Look, I'm not defending this Judge; but, I find the whole scenario astounding. A former Judge who committed no underlying crime apart from lying about something she was justifiably embarrassed about and which should have resulted in ethics action, may go to prison for 10 years or more, because she covered-up phone conversations that amounted to really nothing. Unethical, yes. 10 years???

[Note: Cleveland.com is reporting that the sentencing scheduled for Monday, July 18th has been moved to August.]

[Note: I apologize for the formatting issues which are vexing this post]

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Deters Update: His Law Firm to Get a "Special Master"

2011-07-15T07:44:00.000-04:00

A Kentucky federal judge reviewing potential sanctions vis-a-vis mouthpiece hall of infamy honoree, Eric Deters, yesterday, ordered Deters to agree to the appointment of an outside lawyer to reivew his law firm practices, adopt any recommendations based on the "special master" review, and to attend an additional 20 hours of continuing legal eduction. Reporter Jim Hannah's follow-up story for the Cincinnati Enquirer follows:

Lawyer and radio personality Eric Deters filed a federal lawsuit in January to stop the Kentucky Bar Association from moving forward with disciplinary proceedings against him.

What he got on Wednesday was a federal judge who accused him of filing lawsuits before fully researching the facts and the laws that apply - a similar claim that has been made in the state disciplinary proceedings. To discourage such frivolous filings, U.S. District Judge Danny Reeves said that he was ordering Deters to have an independent lawyer review the operations of his law firm and adopt any recommendations. Deters must also attend 20 hours of continuing legal education on ethics.

If Deters fails to complete these tasks, he will have to reimburse Kentucky Supreme Court Chief Justice John Minton Jr. and the state bar association the about $23,000 in legal bills they incurred defending the federal suit. The suit has since been withdrawn. Deters said he would not appeal Reeves’ decision. He says he welcomes the review and gets to decide on who will conduct it, though the judge must approve the choice.

"I'd like to put this in perspective," he said. "I was not told that I or (a) loved one has cancer today. I did not lose a child today. I did not lose my good health today. I still have a great law practice, a great radio show and plenty of business interests. I will not lose any clients today. In fact, I will gain clients based upon my courage of standing up for my cause."

Reeves repeatedly expressed concern that Deters acts impulsively. Reeves said Deters' approach to litigation was "ready, fire, aim."

Reeves said another example of Deters' impulsive actions appeared to be the recent release of a YouTube video where Deters criticizes Reeves. In that video, Deters said he refuses to let Reeves paint a picture that he is "some kind of sloppy incompetent attorney."

Deters said he was just defending himself so not to lose clients because of the bad publicity the suit against the bar association created. Deters has since removed the video from his website.

Reeves then demanded Deters' attorney, former gubernatorial candidate Larry Forgy, elaborate on what he meant by statements that a "cabal" of lawyers was forming to destroy Deters' career. Forgy said lawyers jealous of the success Deters has found as a radio personality and the business it brings his firm were behind the bar association's disciplinary proceedings.

A trial commissioner has recommended Deters be suspended from the practice of law for 181 days, but the Kentucky Bar Association's Board of Governors has agreed to review all the charges before acting on the recommendation. A hearing before the board is set for September.

While Deters withdrew the January suit, he filed a second suit against the bar association in June.
Forgy said the June suit makes different legal claims than the January suit, but the underlying theme is the same. Forgy claims the trial commissioner who recommended the suspension had a conflict of interest and should have recused himself.

One of the bar association's ethics charges against Deters is that he charged an excessive $1,500 fee for filing a suit. But Forgy claims the trial commissioner's law partner took the case after Deters was no longer in it and took a $25,000 fee.

"My wife, children, family, friends, clients and fans still support me and think more, not less of me," Deters said leaving the courthouse. "My enemies, who are petty and mean people, can enjoy their victory. My life is wonderful and I'll keep fighting the good fight."
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The hemming and hawing, grandiosity, rationalizations, and bluster never ends with this guy. Eventually, unless he has a "come-to-Jesus-moment" his time to take corrective action to save his career will run out. Not yet.

Admit It, You Did It!

2011-07-15T07:08:00.001-04:00

The Iowa Supreme Court holds that prison sex offender therapy programs that insist on inmates admitting crimes they deny are constitutionally valid even though they are coercive in the sense that inmates refusing to participate are denied "good time" reductions in their prison sentences. In this story from the Des Moines Register via Jeff Eckhoff we come up against that age old question, do I really have to testify against myself? In Iowa, if you want to get out of prison--you do:

Locked-up Iowa sex offenders can be compelled to admit their crimes as part of prison treatment programs without triggering a violation of the inmates' right against self-incrimination, a narrow majority of the Iowa Supreme Court ruled Friday. Four of the seven Iowa justices found that the Mount Pleasant Correctional facility didn't violate Robert Harkins' Fifth Amendment rights by denying him time off for good behavior if he refused to participate in a treatment program.

The remaining justices said they would have allowed the requirement only if the state offered immunity to prevent any admissions from being used against Harkins in court.

Iowa law says state prison inmates can earn 1.2 days off their sentences "for each day the inmate demonstrates good conduct and satisfactorily participates" in any program he or she is determined by prison officials to need.Harkins, convicted of third-degree sexual abuse in 2006, argued in court pleadings he filed himself that linking those "earned-time credits" to completion of sex-offender treatment violated his constitutional rights because the treatment required signing a contract that would have forced Harkins to "assume full responsibility" for his past offenses and behavior.

Harkins was still on a second round of appeals in his criminal case at the time he brought a lawsuit in Webster County court. Both sides appealed after a Webster County judge restored part, but not all, of Harkins' time credits.

"I cannot enter treatment because this would be an admission of guilt and would perjure myself in changing my story," Harkins said in court filings. "Also, it would hinder any chance at a new trial if I would sign a confession."

But the majority of justices - Thomas Waterman, Edward Mansfield, Bruce Zager and Chief Justice Mark Cady - ruled Friday that state prison officials have "important rehabilitative goals" in using the possibility of a longer prison term to compel sex-offender treatment.

"The state is not using a threatened loss of credits to try to extract testimony; instead it is attempting to administer a bona fide rehabilitation program for sex offenders who have already been found guilty under a statutory scheme that afforded them all required due process," Mansfield wrote in a 27-page opinion for the majority.

"Harkins had every right not to be a witness against himself. ... Now that he has been convicted as a sex offender, though, the State of Iowa may constitutionally establish an incentive for him to obtain treatment in prison by withholding earned-time credits if he declines to participate."

Justice Brent Appel, author of a 30-page dissenting opinion on behalf of a minority that included Justices David Wiggins and Daryl Hecht, said the case boils down to a tough choice for Harkins: "Simply put, if he chooses to remain silent by not participating in the program, he likely will be incarcerated for a substantially longer period of time."

Appel's opinion concludes that Iowa has imposed "an impermissible penalty for the exercise of (Harkins') Fifth Amendment rights" and argues that "the state may force Harkins to choose" between self-incrimination and a longer sentence "only if it provides Harkins with use and derivative-use immunity from prosecution."

Fred Scaletta, spokesman for the Iowa Department of Corrections, declined to make Harkins available for an interview based on the possibility of future appeals. Scaletta said prison officials were "pleased with the ruling because it allows us to continue with the treatment program, which we think is very effective."
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Does the prohibition against self-incrimination contained in the Fifth Amendment to the US Constitution mean anything, anymore?

A recent case in the news relates to encrypted computer files and the ability of the government to compel the turnover of passwords and encryption keys. Perhaps we will soon learn if there is any remaining area where the Fifth Amendment protection remains robust.

By the way, during the month I was incarcerated at the CCA in Youngstown, Ohio I voluntarily attended Drug Therapy program classes since 12-Step programming was unavailable. Frankly, it was pretty stupid. The class was taught by an "educator" who was not a recovering person and who shared with us that he really didn't get the whole-prohibition against marijuana-thing. Essentially his class consisted of running videos with a few minutes of pointless chatter.

Prison therapy programs may involve well-meaning and motivated persons, but in my experience is that the program offereings are rarely well-thought out or executed. Additionally, nothing offered at FCI, Morgantown disabused me of this impression.

Scott Greenfield Asks: Does Clemens Get a Walk?

2011-07-14T15:33:00.000-04:00

Scott Greenfield at the Simple Justice blawg asks, Does Roger Clemens Get a Walk?
Yes.

What a disgusting waste of tax payer money. The prosecution of Clemens for perjury was dubious at best. The expenditure of resources in investigating and readying this case for trial was unspeakable. Well not for Rusty Hardin who made it the focus of his opening statement. It's almost as if the government intended to throw the ball away.

While not an expert on this issue, the government's mistrial would seem to bar further prosecution based on the principle of Double Jeopardy.

If You're Going to Make a Federal Case Out of Your Daughter's Cheerleading Issues, Hire a Lawyer who Excelled at Legal Writing Class

2011-07-14T13:30:00.000-04:00

Samantha Sanches appealed a Summary Judgment in her Civil Rights lawsuit against the local school district relating to her daughter's dispute over the cheerleading squad. The 5th Circuit Court of Appeals was appalled at her appeal and more so with her attorneys' grammatical efforts. You don't want to be on the receiving in of an opinion like this one. Ouch!

The court's opinion begins: "Reduced to its essentials, this is nothing more than a dispute, fueled by a disgruntled cheerleader mom, over whether her daughter should have made the squad." And concludes with this footnote critique of the grammatical deviations of Sanches' counsel: "These sentences are so poorly written that it is difficult to decipher what the attorneys mean, but any plausible reading is troubling, and the quoted passage is an unjustified and most unprofessional and disrespectful attack on the judicial process in general and the magistrate judge assignment here in particular. This may be a suggestion that Magistrate Judge Stickney is incompetent. It might be an assertion that all federal magistrate judges are incompetent. It could be an allegation that only Article III judges are competent. Or it may only mean that Magistrate Judge Stickney’s decisions in this case are incompetent, a proposition that is absurd in light of the correctness of his impressive rulings. Under any of these possible readings, the attorneys’ attack on Magistrate Judge Stickney’s decisionmaking is reprehensible. [ . . . ]The summary judgment on all of Sanches’s claims is AFFIRMED."

[footnote, quotation marks ommitted] Usually we do not comment on technical and grammatical errors, because anyone can make such an occasional mistake, but here the miscues are so egregious and obvious that an average fourth grader would have avoided most of them. For example, the word “principals” should have been “principles.” The word “vacatur” is misspelled. The subject and verb are not in agreement in one of the sentences, which has a singular subject (“incompetence”) and a plural verb (“are”). Magistrate Judge Stickney is referred to as “it” instead of “he” and is called a “magistrate” instead of a “magistrate judge.” And finally, the sentence containing the word “incompetence” makes no sense as a matter of standard English prose, so it is not reasonably possible to understand the thought, if any, that is being conveyed. It is ironic that the term “incompetence” is used here, because the only thing that is incompetent is the passage itself.
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Hoo boy. By the way, I picked this up via Howard Bashman at the amazing HowAppealing blawg.

Gotta Love the Cops, Right?

2011-07-14T08:52:00.000-04:00

From Raleigh, North Carolina, a state trooper is serving a 4 day suspension for profane texting following a bad arrest. Here's the story via the Charlotte Observer:

A trooper whose profane text messages about a Raleigh woman suspected of driving while impaired became public has been suspended from the N.C. Highway Patrol for four days.

Trooper Andrew Smith (pinhead, at right) sent the messages to fellow trooper Edward Wyrick last month ridiculing the woman, Gina Tessener, after she twice blew a 0.00 on a breath alcohol test at a police station in Wrightsville Beach. The woman's husband told Wyrick he should be ashamed of himself for arresting his wife for being intoxicated when she was not.

"Hahahaha f--- her and f--- him," Smith texted Wyrick on his personal cellphone.

The messages between the two troopers were disclosed by the patrol following a public records request by The News & Observer.
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No, Trooper Smith f--- you.

When Is a Homicide Not a Crime?

2011-07-14T08:34:00.000-04:00

The Yolo County (California) has indicated that he is not going to pursue criminal charges out of the homicide of Scott Heinig (pic) by one of his friends who punched him in the face and killed him. The story by Hudson Sangree at the Sacramento Bee is pretty sad, but illustrates tough decision-making in when to pursue criminal charges in an unusual and tragic fact pattern. Do you agree?:

Authorities said Wednesday that the death of a well-liked Davis baseball player and coach, who was punched in the face by a friend on Picnic Day and died, was a homicide. But Yolo County prosecutors will not file charges in the killing of Scott Heinig, 22.

Though "caused by human hands," Heinig's death was "the result of a tragic set of circumstances that do not rise to the level of criminal conduct," the Yolo County District Attorney's Office said in a press release.

"We have talked to the family of Mr. Heinig, and they are behind this decision," Assistant Chief Deputy District Attorney Michael Cabral said.

The details of Heinig's death were made public for the first time Wednesday, after nearly three months of investigations by the Davis Police Department and the Yolo County Coroner's Office. Heinig was a recent UC Davis graduate and university baseball player. He also played baseball at Davis Senior High School and was working as an assistant coach there.

On April 16, Heinig celebrated Picnic Day, the UC Davis annual open house, authorities said.   "He had been out enjoying the Picnic Day festivities and had consumed alcohol throughout the day," Lt. Paul Doroshov, Davis police spokesman, said Wednesday.

Afterward, a small number of friends gathered at a home in the 1000 block of Fifth Street, officials said. Heinig and three or four friends were in the driveway about 8 p.m., when Heinig insisted they hit him in the face, authorities said.

A police investigation "revealed that this type of conduct was a common occurrence between Heinig and his friends," the news release said.

Heinig's friends initially refused, but then Heinig hit one of them in the face and the man punched back, it said.   The blow to Heinig's face and twisting motion of his head caused an artery in his neck to rupture, a rare injury sometimes seen in boxers, authorities said.

Heinig collapsed, hitting his head on pavement. Lifesaving efforts at UC Davis Medical Center were unsuccessful, and Heinig died shortly after midnight.

His blood-alcohol content was measured at 0.11 five hours after the incident, authorities said. The legal level of drunkenness is 0.08. Alcohol breaks down in the bloodstream at a rate of about 0.02 per hour, Cabral said.

Officials did not identify the man who struck Heinig but described him as a close friend who was distraught after the incident.
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Many years ago I defended a biker/iron worker who hit another man in the jaw knocking him to the pavement causing one of his orbital sockets to shatter permamently disrupting an optical nerve and blinding the man in one eye.   My client intentionally struck the "victim" and yet a jury acquitted my client. Why?

Every case exists on its own set of facts and circumstances. In my client, Fran's case, he was confronting another biker who he had every objective and subjective right to fear. He was at the scene to collect a terrified young woman and her few belongings who was moving out of the "victim's" house. The victim had a long history of violence, criminal priors, and was in fact incarcerated for an aggravated armed robbery at the time the case against my client went to trial.

Still, if the unthinking reactionary prosecutions are any indication this was a pretty brave decision by this Yolo County prosecutor. It seems to me that once again it comes down to mens rea, although I think this is a pretty close case. When you volitionally hit someone in the face with enough force to knock them to the ground it seems to me you are knowingly assuming the risk that this sort of outcome could result.

DeKalb County Ga. Judge Is Pissed Off at Defense Lawyer and Declares Mistrial

2011-07-14T08:12:00.000-04:00

This remarkable video is from the Atlanta Journal Constitution website. It nicely illustrates a pissed off Judge who perceives that the court is dealing with defense lawyer "tactics" or unpreparedness. In either event you do not want to be this lawyer.

Drunk Driving Costs an Ohio Legislator His Job?

2011-07-14T07:22:00.003-04:00

Idaho Sen. McGee

I read, or scan anywhere from 100-150 local news websites everyday, thus I see certain patterns in the stories and specific trends emerge. For a while, there were tons of child porn prosecutions, child abuse and neglect stories, police misconduct, Ponzi schemes, in the spring and summer bicycle fatalities--right now there is a remarkable predominance of stories of public officials and drunk driving. Yesterday, I featured the story of the Texas Assistant District Attorney who resigned after a drunk boating arrest. The beleaguered Bronx assistant prosecutor, Jennifer Troiano was back in the news as the poster girl for favoritism in the NYC tabloids. An Idaho republican senator, John McGee (pic) who stole a neighbors' Ford SUV and crashed it into a immovable object after a bizarre night of drinking got a misdemeanor plea deal and looks like he's getting a second chance at his political career with a misdemeanor plea deal and kind words from the sentencing judge.

Jennifer Troiano

But Ohio Rep. Robert Mecklenborg (pic, below right), a right wing and right to life zealot is being kicked to the curb for a DUI according to an article at the Columbus Dispatch. As a commentator said yesterday, in each case there is more. There is always more. Let's see if we can figure out why Mecklenborg is losing his seat. This is an excerpt from the Columbus Dispatch article:

The House speaker says a Cincinnati Republican who went through an embarrassing drunken-driving arrest and did not tell leadership about the incident until it became public should resign from his seat soon.

Speaker William G. Batchelder, R-Medina, has said he holds Rep. Robert Mecklenborg in high regard for his legislative work, but he added yesterday: "I don't think he'll come back to the capitol building."

Mecklenborg, 59, was arrested in April in Indiana on a DUI charge by an Indiana state trooper. The three-term lawmaker refused to blow into an alcohol-detection machine, and a dashboard camera video shows him repeatedly telling the trooper that he had not had anything to drink, even as he failed three sobriety tests. A blood test later registered his blood-alcohol content at 0.097 percent, above the 0.08 percent level at which a driver in Indiana is considered to be drunk - the same as in Ohio. Mecklenborg, who is married, also had a younger female passenger [ a stripper that he took to a local Burger King] in the car, and his blood contained Viagra.

Rep. Robert Mecklenborg

Mike Dittoe, spokesman for Batchelder, said the speaker will continue to work with Mecklenborg on a timeline for his resignation [. . . ] Batchelder said Mecklenborg is getting treatment, but he didn't specify for what purpose.

Earlier yesterday, Ohio Democratic Chairman Chris Redfern called on Mecklenborg to resign, saying he endangered the lives of his female passenger and the public when he drove intoxicated.

"I believe Rep. Mecklenborg showed a disregard for his family and the constituents he is supposed to represent. He failed them. It is time for him to go," Redfern said in a statement.
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Robert Mecklenborg, a trial lawyer (which he tells the arresting officer in the video at the link) in addition to being a legislator, climbed out on that whole family values limb. He was an outspoken advocate of recent (probably unconstitutional) restrictive Ohio abortion legislation. It's hypocrisy, not alcoholism or drunk driving claiming Mecklenborg's public service career. One local blogger titles a recent post about Mecklenborg abortion posturing and DUI arrest, "If Fetuses Were Able to Take Strippers to Burger King..." Politically, all sorts of shenanigans can be survived. Hell, in Louisiana, the 4-term ex-governor and felon, Edwin Edwards is being feted all over Louisiana media. But you politically can't survive hypocrisy.

Guns Are Great for Night Time Hunting!

2011-07-14T06:37:00.000-04:00

A Milesburg Pa man killed his girlfriend after a little night time hunting accident. Didn't you know? Night time is the best time to get all shooty with your hunting rifle while you and your sweetie are crawling around in the dark. This is an excerpt from Cliff White's story at CentreDaily.com:
Troy Tierney (pic), 25, pleaded guilty to involuntary manslaughter in May. Judge Pamela Ruest handed out the maximum sentence for the crime — two-and-a-half to five years in state prison. Tierney also must pay a $1,000 fine for game law violations.

“Life was lost. A very young woman has a family now that visits her at a gravesite, and that will never change,” said District Attorney Stacy Parks Miller. “Based upon the gravity of the offense and the effect upon the victims, we thought that was an appropriate sentence and the judge agreed.”

In 2009, Tierney and 21-year-old Racheal Perryman were poaching deer after dark in the woods off state Route 504 in Union Township when they became separated and Tierney shot Perryman. Tierney told police he shot at a moving object in the woods and didn’t know it was Perryman. He was on multiple prescription medications at the time and police reported him to be stumbling and talking with slurred speech at the crime scene.
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What a thing to live with for the rest of your dumbass life.

Boating While Drunk, That'll Cost You Your Job, Mr. Prosecutor

2011-07-13T14:38:00.000-04:00

From reporters: Eva Ruth Moravec and Craig Kapitan at MySanAntonio.com there is this account of serious consequences for a prominent lawyer and assistant district attorney as a result of boating while intoxicated:

A 26-year veteran Bexar County (Texas) assistant district attorney has resigned after spending a night at the Bandera County Jail on a boating while intoxicated charge. Jim Kopp filed a letter of resignation June 20, two days after he was arrested for the Class B misdemeanor while on an outing on Medina Lake.

Texas Parks and Wildlife Department Game Warden Jeff Carter said he pulled over a small motorboat for a routine water safety inspection and noticed its operator, Kopp, showed signs of intoxication. There were a few empty beer cans in the boat, Carter said, but no one was drinking at the time.

A few preliminary tests convinced Carter to escort Kopp's boat to shore, where he gave Kopp 15 minutes to “get his land legs back” and conducted a field sobriety test, the game warden said

“He was very cooperative and very much a good guy through the whole thing,” Carter said. “He didn't use (his position) in any way, as far as influence goes.”

Kopp, 53, is still on the county payroll using the remainder of his vacation but has not been in the office since resigning, said First Assistant District Attorney Cliff Herberg, who described Kopp's service to the county over the years as “extraordinary.” Herberg declined to comment on the circumstances of the resignation.

A former chief of criminal trials, Kopp most recently served as chief information officer for the district attorney, compiling databases for the DWI Task Force and other programs. Usually behind the scenes, he made a rare courtroom appearance last year to serve as lead prosecutor for the high-profile Joe Estrada Jr. capital murder case.
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Seems like a pretty harsh outcome, assuming this was a first offense for Prosecutor Kopp. I realize that his role on the DWI Task Force made him a pretty prominent target, but this seems pretty extreme.

Danzinger Bridge Murder and Cover-up

2011-07-13T10:12:00.000-04:00

Five New Orleans police officers are on trial in the Danziger Bridge case. They are, from top left: Kenneth Bowen, Robert Faulcon, Robert Gisevius, Arthur Kaufman and Anthony Villavaso.

While it seems as if all of America is in a trance over a brainless twit's responsibility for the death and missing body of her infant and whether Florida would manage to put the mother on a death row gurney--the real trial of this century, thus far, the Danzinger Bridge murders and cover-up trial is underway in New Orleans. The coverage by the New Orleans Times Picayune is as you might expect amazing and heartbreaking.

The massive and "brazen" cover-up of the reacist killings in the wake of Katrina is one of the all-time Bad Cop stories.

School Teacher Pleads "Insanity" When She Had Sex with Those Boys

2011-07-13T07:22:00.000-04:00

A Mason, Ohio former physical education teacher, Stacy Schuler (pic, left), says she was "insane" when she had sex with 5 teenage boys in an alcohol-fueled incident or incidents last year. Here's Janice Morse's story from this morning's Cincinnati Enquirer:

Stacy Schuler, who faces 19 charges, changed her plea from "not guilty" to "not guilty by reason of insanity." The change in plea, filed in a one-line document Monday, left Warren County Prosecutor David Fornshell scratching his head Tuesday.

"It’s certainly an interesting development," Fornshell said, noting Schuler previously denied the incidents happened and now, in essence, is admitting they occurred but says she should not be held legally responsible.

Schuler’s lawyer, Charlie H. Rittgers, declined to discuss why he changed the plea on behalf of Schuler, 33, of Springboro. The so-called insanity defense is highly unusual and rarely succeeds, experts say, although there’s typically some basis for it when it is attempted.

"Generally, when I’ve seen these pleas, there’s something behind this – it tells me something came up that’s cause for concern," said Akron lawyer Carmen Roberto, past president of the Ohio State Bar Association. During his 38-year law career, Roberto estimated he had seen fewer than 10 such pleas amid thousands of cases as both a defense lawyer and prosecutor.

Because the defendant is admitting the offense occurred in an insanity plea, "you start off a little bit behind the eight-ball," making the case difficult to win, Roberto said.

As of 2002, only about 2 percent of all suspects pursued an insanity defense -- and only about one-third of them secure an acquittal for mental-health reasons, Rita J. Simon, a professor of public affairs and law at American University in Washington, D.C., told the Enquirer previously.

Under Ohio law, Rittgers must show "by a preponderance (majority) of the evidence" that his client suffered a mental problem that blocked her ability to understand right versus wrong. By filing the insanity plea, Rittgers opened the door for Schuler to possibly undergo three separate mental evaluations. The defense, prosecutor and judge may each request a separate one.

Attorney Kent Scheidegger, legal director of the Criminal Justice Legal Foundation, a Sacramento-based organization that advocates "swift and certain punishment" of convicted criminals, said "most people are skeptical and reasonably so," when they hear of an insanity plea being filed. The insanity plea may be a "last-ditch argument" by a desperate defendant, he said.

But Simon has said that insanity pleas tend to draw a lot of attention, leading to a misperception that they are more common than they actually are.

Fornshell said the case is his first involving an insanity plea since he was appointed county prosecutor in February. He said Judge Robert Peeler could take some action related to the plea when the case heads to its next hearing July 21 in Common Pleas Court in Lebanon.

Schuler, who resigned from her job, is set for trial Aug. 8. She’s accused of 16 counts of sexual battery, which allege she had sexual contact with boys, plus three counts of providing alcohol to minors. The sex charges carry up to five years in prison if she’s convicted; each alcohol charge is punishable by six months in jail.
Schuler was released in February from the Warren County Jail on her promise to appear in court. Schuler’s location is being electronically monitored, officials said.
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This is an interesting article for several reasons: an interesting, um provocative underlying story; an interesting legal defense; interesting comment from legal experts; and, a local reporter trying to convey something about the situation that actually conveys something informative. I particularly liked when the reporter offered a parenthetical explanation of the burden of proof for an insanity defense. What Ms. Morse meant was that in pleading "insanity" the burden of proof shifts to the defendant to prove her lack of capacity by a "preponderance of evidence," as opposed to a normal "not guilty" plea in which the prosecution must prove all elements of the charged offenses "beyond a reasonable doubt."

But the story really caused me to think about "capacity" and my own changing view. You might say I am uniquely qualified.

This blawg has several running themes not the least of which is the role of alcoholism and impairment. You don't have to follow this blawg for long to see many examples of profoundly impaired people from all walks of life doing inexplicable, judgment-impaired acts of near-insanity (or complete insanity) often with tragic results. I also recognize that real time "insanity" attributable to active alcoholism is not the same thing as a valid defense of "insanity." But personally, I can't think of a clearer example.

Would I even bother talking about this if we were talking about a male school teacher drinking and getting all touchy, feely with female high school students? Probably not. I confess, I would probably say, "throw the book at him." And yet, I genuinely think our paradigms for legal responsibility are not terribly nuanced. This is largely because we insist on calling the defense of capacity: "insanity." What the hell is that?

In fact, we really don't mean insanity. "Insanity" is not like "cancer" or "AIDS" or any condition which can be objectively diagnosed. You'll look in vain for a definition in the Diagnostic and Statistical Manual of Mental Disorders of the American Psychological Association. There are no diagnostic criteria to say for instance: x + y = Insanity; although, remarkably MRI studies do demonstrate "changes" in the brains of alcoholics and addicts. And yet the term, insanity, is tossed around in court as if there is some sort of objective standard or quantifiable status. The reality is that "insanity" is a legal conclusion, the outcome of some sort of legal sausage-making. We mean when we say someonw is "insane" that certain charged criminal acts lacked mens rea therefore the defendant is not criminally responsible.

If the evidence shows that Stacy Schuler suffers from alcoholism and that her actions with her students were causally-related to her use and abuse of alcohol should she be forgiven, no. (But, would you forgive her if her actions were related to dementia caused by medications taken to treat a serious medical condition?) Should Stacy be helped, yes. I don't find anything ridiculous or absurd about Stacy Schuler's change of plea. We'll see how it works out.

Young Woman/Drunk Driver Sentenced to 6 Years for Killing a Cyclist

2011-07-13T05:13:00.001-04:00

From the San Juan Capistrano Patch:

A 30-year-old San Juan Capistrano woman was sentenced to six years in state prison today for running her car off the road in Dana Point and killing a bicyclist In March, Michelle Nicole Stearns pleaded guilty to gross vehicular manslaughter while intoxicated for the October 2007 incident.

Orange County Superior Court Judge Craig Robison could have granted Stearns probation or sentenced her up to 10 years. Robison said he struck a middle ground because she had no criminal history and family and friends wrote letters to the judge on her behalf.

"I do believe her expressions of remorse are genuine,'' Robison said. Stearns formed a nonprofit organization called Safe Cruz that
provides rides home for impaired drivers, Deputy District Attorney Nancy Hayashida said.
"Not a second goes by that I'm not in agony over this,'' Stearns told the judge. "I would do anything to make this not real ... That's the torture. I can't change this.''

Stearns was driving her BMW north on Del Obispo Street near Quail Run at 2 a.m. when she lost control of the car, jumped the curb, hit a traffic sign and crashed into Jose Umberto Barranco-Patino, 32, as he pedaled home from his job as a busboy, prosecutors said.

She also hit a utility box, triggering a power outage in the area for about 600 customers. Stearns' blood-alcohol level was almost three times the legal limit, according to prosecutors. Barranco-Patino was pronounced dead at the scene.

"I am so sorry,'' she tearfully said in court.

Barranco-Patino's brother, Cesar Barranco, and his wife, Martha Pliego, said after the hearing they were satisfied with the sentence. With help from a translator, they told reporters the victim was a "great father'' who was happy and concerned with his family's welfare.
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In the blink of your eye, your whole life changes when you get behind the wheel of a car drunk. You take the drink, the drink takes the drink, the drink takes you and innocent others.

Kitsap County Juror, I Wanna Punch That Lawyer in the Nose,. . . um, That's a Mistrial

2011-07-12T09:18:00.000-04:00

John Henry Browne

In my imagination, Kitsap, Washington must be an incredibly beautiful place. It's one of those places in Northwest Wa near Seattle where folks live on islands and take ferrys to do their business. In fact both the prominent Seattle lawyer, John Henry Browne, and Kitsap County Judge Theodore Spearman live on nearby Bainbridge Island. But apparently a law degree and residence is about all they share. Here's the Kitsap Sun's account (by Josh Farley) of a recent case which ended when a juror was overheard uttering the desire to punch attorney Browne in the nose. Here's the story:

It's not often a lawyer is nearly sent to jail for his conduct in a Kitsap County courtroom. Then again, it's also rare for an attorney to accuse a judge of being incompetent during a trial.

But that's what happened this week when John Henry Browne, a prominent Seattle defense attorney representing a man accused of drug crimes, called into question Kitsap County Superior Court Judge Theodore Spearman's ability to administer a fair trial. [The judge fined Browne $500 twice during the trial and threatened to jail him.]

In the end, Browne, who had repeatedly asked for a mistrial, refused to go forward with defending his client on ethical grounds. He said the judge's rulings called into question his mental state.

"I do believe that the legal community in Kitsap County knows he has cognitive deficits," said Browne, whose high-profile cases include defending Colton Harris-Moore, the so-called "Barefoot Bandit."

Browne said he will appeal the fines and file a complaint with the Washington State Commission on Judicial Conduct. He will also have to return to Port Orchard this month to appear before Spearman to answer for his own conduct.

According to court clerk records and observers in the courtroom, Browne disobeyed Spearman's orders, giving the judge no choice but to discipline him.

Judge Spearman

Kitsap County Prosecutor Russ Hauge declined to comment on Browne's actions, but said prosecutors will request that Browne be ordered to pay for the cost of retrying the case, because it was his "intentional conduct" that spurred the mistrial.

Hauge said Spearman has suffered recent health problems, including a heart attack in October 2008 that sidelined him from the bench, but they did not interfere with his abilities on the bench. He called the judge, who has been a member of the superior court bench since 2004, "an extraordinarily well experienced lawyer." [ . . . ]

Browne was defending Dominic Briceno, who had been accused by county prosecutors of six drug-related felonies before trial, including the rare charge of leading organized crime. Briceno had been arrested in December 2009 at the Suquamish Clearwater Casino [ . . .]
Spearman had fined Browne before the recess for failing to abide by an earlier motion to keep objections to a single word. In order to avoid [speeches], Spearman had ordered Browne and deputy prosecutor Alexis Foster to ask that jurors be excused before any lengthy discussions.When the trial resumed Tuesday, the courtroom got even more contentious. About an hour into Tuesday's proceedings, Foster objected to Browne's "ongoing speaking objections" and asked that he be penalized, according to court records. Browne was fined another $500.

At that point, Browne declared he could not effectively represent his client and that "he no longer wants to participate in this trial," according to court records.

Spearman gave Browne a day to think about how he wanted to proceed.

On Wednesday, Browne filed a document called a "memorandum regarding judicial conduct." In the brief, Browne asserted that various rulings Spearman made throughout the trial violated Briceno's constitutional rights, and that the "court's misapprehension and misapplication of the law — always in favor of the state — demonstrates the court's incompetence to preside over (the) trial."

Browne contended Spearman had interfered with his client's right to a fair trial by, among other things, failing "to even consider the defense argument" and those decisions "thus call the court's faithfulness to the law and professional competence into serious question."

Browne ultimately asked for Spearman to recuse himself [ . . . ]

Browne again told Spearman he would not continue arguing the case and he was refusing to participate. Spearman was inclined at that point to call for a mistrial due to defense counsel "behaving improperly" and "obstructing justice," the clerk's notes say.

Foster, however, believed then a mistrial could be avoided and recommended finding Browne in contempt — and also holding him in custody until Thursday.

At that point, Browne brought forth his own counsel — longtime Port Orchard attorney Roger Hunko — to defend him.

Ultimately, Spearman didn't believe jailing Browne for the night would "change his behavior." But Browne's position about the judge's handling of the case wouldn't change either. He opted for a recess to consider what to do.

But in the end, it was an offhand comment by a juror during that recess that forced a mistrial.

Though the jury had been advised not to discuss or comment on the case, the bailiff informed the court she had overheard a juror, outside the jury box, express a desire to "punch that defense attorney in the nose," according to courtroom observers.

Spearman declared that Browne's behavior had "thwarted" the administration of justice, creating an "incurable prejudice," the clerk's notes said.
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This is about as over-the-top trial conduct as you are going to see outside of maybe NYC or Boston (okay, maybe Orlando.) And the story is nicely laid out by the Kitsap Sun reporter who is clearly not a lawyer. While the behavior of lawyer Browne will probably cost him a major disciplinary hit, what may not be apparent from the story is what happened in chambers and in pretrial proceedings. Clearly, Mr. Browne feeling the way he felt about the Judge should have withdrawn prior to mid-trial, but it's possible, maybe even likely that there is a whole story underlying the story.

We'll keep an eye on it.

Chase Bank Says You're a Nigerian Scammer; Chase Bank Says You're Dead

2011-07-12T08:09:00.001-04:00

Over the weekend Scott Greenfield ran the story at his Simple Justice blawg of the African-American construction worker who tried to pay his mortgage with a REAL Chase check at his local Chase Bank branch and ended up in jail accused of various crimes by Chase for his innocent and responsible effort. Read Scott's post, but at left is a picture of Ikenna Njoku, the 28 year old victim of Chase's utter stupidity.

This morning, Rene Stutzman at the Orlando Sentinel reports that Chase Bank declared a Florida woman dead, and Wrenella Pierre's lawsuit describes the nightmares associated with her bank's erroneous declaration:

Wrenella Pierre is not dead, she insists. Her bank, however, disagrees. In November, Chase Bank USA sent her family a letter of condolence.

"We are very sorry to hear of your loss," it said.

Pierre, of Oviedo, is not amused. She is suing Chase Bank, saying it has stymied her attempts to refinance her mortgage and ruined her credit rating.

Who, after all, wants to lend money to a dead woman?

"I don't know why the bank made this type of disastrous mistake," said her attorney, William Peerce Howard of Tampa. "There is no possible way to have credit extended when you're deceased."

Pierre and her husband, Curtis, built a home in Oviedo in 2007. They got two mortgages totaling $460,000 from JPMorgan Chase Bank, according to Seminole County records.

Two years later, after the home had declined in value, Wrenella Pierre tried five or six times without success to have the mortgage modified, according to her lawsuit.

Last year, the bank, for some reason, notified credit-reporting agencies that she had died, the lawsuit says.

On Nov. 2, Chase sent her family the letter of condolence, an unsigned form letter. Someone from the bank would be in touch, it said, about the outstanding balance.

She notified the bank that she was still alive, according to the lawsuit, and a few weeks later tried again, going into one of its branches, asking it to correct the error.

A month later, credit-reporting agencies were still reporting she was dead, according to her lawsuit.

Nancy Norris, a spokeswoman for JPMorgan Chase, on Monday would not discuss details of the case, citing the lawsuit.

"We're investigating how it happened," she said.
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As I said in a comment at Scott's blawg, Chase's priors would make Whitey Bulger blush. Here's further evidence.

As you sit around tonight eating your salad and idly staring at Wheel of Fortune or whatever you run in the background while you eat and one of those sexy Chase ads come on, remember the examples of Wrenella Pierre and Ikenna Njoku. That's the real JP Morgan Chase.

Did Senator Klein Really Point Her Loaded Hot Pink Pistol at a Reporter? Yep!

2011-07-12T07:18:00.001-04:00

Sen Klein with her laser-sighted Pink Ruger

Transcript of the interview wiht Senator Klein:

Klein: A friend of mine said, it looks like a water pistol. I'm like, yeah, wait until you see the laser pointer.

Henle: It has a laser on it?

Klein: Yeah. Yeah. I showed it to you.

Henle: I didn't see the laser part.

(Simultaneous) Klein: I pointed it at him.

(Simultaneous) Ruelas: She pointed it at me.

(laughter)

Ruelas: With the safety on, you pointed it at me.

Klein: No, there is no safety on that.

Ruelas: OK.

Klein: I just didn't have my hand on the trigger, god.

Ruelas: Oh no, but it does look, I mean, if I could see it again, it does look like a, like a, makeup bag . . .
Henle: There's no safety on that?

Klein: Yeah, no. There is no safety.

Ruelas: ... it looks like you're carrying sunglasses in there, I mean . . . actually, yeah.

Klein: I won't point it at you.

Ruelas: I have sunglasses. It's about that size . . .

Klein: So OK, this is the laser. Look, look, that's the laser. But see this gun is basically for self protection. You're really accurate 20 feet away from you. Do you know what I mean? That's basically ... now, notice, I don't have my hand on the trigger. There is no safety on this gun. But you have to really pull the trigger, to you know, it's a harder trigger. That's part of your safety.
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At the AZCentral website you can follow this controversy which is a fascinating sidelight to the larger article I linked to yesterday about the gunslinger legacy in Arizona.

Oh, and more on Senator Klein. At her campaign website Klein first listed endorsement....? Sheriff Joe Arpaio, big surprise, there, uh huh?

The SC Attorney Who Tried to Hire a Hit Man to Kill a Former Colleague, He's Disbarred

2011-07-12T06:52:00.001-04:00

Back in 21009 I related the story of Irby Ezell Walker, Jr. who was caught trying to hire a hit man to kill a former colleague and office mate. This is a link to Walker's firm website which is still up and running. The Associated Press is reports that Walker confessed to the crime, and the Legal Profession blawg links to Walker's voluntary disbarment. This is an excerpt from the local news report at WIS10 Columbia, SC:

A South Carolina attorney sentenced to three years in prison for trying to hire someone to kill another lawyer has been disbarred. The state Supreme Court on Monday ordered that Irby Walker's law license be revoked.

Walker in August was sentenced after pleading guilty to solicitation to commit a felony.

Police said they recorded conversations Walker had with another person about how much Walker would be willing to pay to have Conway attorney Doug Thornton killed.

Authorities say Walker paid the prospective hit man with a post-dated check because he didn't have enough money in his account to cover the check's face value.
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The underlying story relates to a lot of bad blood between Walker and his intended victim(s). There is also a connection to a small town mayor that Walker represented, a blown divorce representation, and bad real estate deals.

Now get this, under South Carolina rules, Walker can apply for reinstatement after he completes his criminal sentence. Amazed? I am.

By the way when I originally wrote about this case I linked to this article which spells out in some detail what was going on with Walker at the time he pulled these stunts. It's worth reading for the Southern Gothic quality of the attempted murder.

We're Drunk, But We Aren't Driving, Officer, um Doesn't Work

2011-07-12T05:57:00.000-04:00

Debbie Arrington at the Sacramento Bee has this unique peek at driving while drunk:

Maybe this wasn't the best example of driver's education.

Two parents who had too much to drink were cited for letting their 14-year-old son drive them to a Sacramento liquor store, police said.

With his intoxicated parents in the car, the unlicensed teen driver was stopped Saturday night by police at a DUI checkpoint at Florin Road and Franklin Boulevard in South Sacramento. According to police reports, the parents - who were not identified - weren't arrested. But they received a citation for allowing their underage son to drive without a license.
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Excellent. Nice job on the parenting. Let's get the kid in rehab right now.

Arizona Republic Special Report on Arizona's Gunslinger Mentality

2011-07-11T10:13:00.000-04:00

Legislator Lori Klein with her Pink Ruger .380

The Arizona Republic is running a special report on its "Gunslinger Legacy." Want to know why this country is gun nuts, you might find some answers in this terrific special series at AZCentral, the Republic's Internet portal.

No Charges Planned in Pottygate, huh?

2011-07-11T08:21:00.000-04:00

Christopher Reavey

Every once in a great while you stumble upon a fantastically ridiculous feud within the courts that rival in the imagination the Hatfields and McCoys, Michigan v. Ohio State, Yankees and Red Sox. I guess it's apropos that I mention the Sox, because from greater-Boston, Ma region, we have Fred Contrada's report at MassLive's tale of "Pottygate:"

More than three years after the Northwestern district attorney’s Office began a grand jury investigation of Franklin-Hampshire Juvenile Court Clerk Christopher D. Reavey, the case known as “Pottygate” is finally down the toilet.

Northwestern District Attorney David E. Sullivan announced Friday that the investigation is officially over and no charges will be forthcoming. Reavey’s initial response was a single word: “Wow!” He then added, “This whole thing was just a horrible waste of taxpayer funds on an investigation of a crime that never happened.”

Reavey’s lawyer, David P. Hoose, who was subpoenaed by prosecutors to testify before the grand jury in the case, said Sullivan’s announcement was “about time.”

“This whole thing was nonsense,” Hoose said

Prosecutor Scheibel

“Pottygate” became the popular term for the investigation of [Clerk] Reavey and all the bizarre side-shows surrounding it. These included a failed effort to subpoena Reavey’s lawyers before the grand jury, the subpoenaing of the Boston Globe reporter in an effort to make him disclose his sources and a stinging rebuke by a Superior Court judge who denied former District Attorney Elizabeth D. Scheibel on both these matters.
The term “Pottygate” came from reports that [Prosecutor] Scheibel had called a grand jury [investigate] a dispute involving [Clerk] Reavey and a bathroom key. The key was allegedly taken from a locked office in the Hadley juvenile courthouse controlled by [Prosecutor's] Scheibel’s office. [Clerk] Reavey came under suspicion for allegedly authorizing a court officer to retrieve the key because someone needed to use the bathroom.

When word of the supposed bathroom dispute got out in the newspapers, Scheibel widened the grand jury probe to find the source of the information, attempting to bring in Boston Globe reporter Jonathan Saltzman and [Clerk] Reavey’s lawyers, Hoose and Luke Ryan. The matter came to a head at an April, 2009, hearing in front of Judge John A. Agostini in which Saltzman cited the First Amendment and Hoose and Ryan attorney-client privilege as arguments for not appearing before the grand jury.

Essex First Assistant District Attorney John T. Dawley, who was brought in by Scheibel as a special prosecutor in the case, surprised many in the courtroom, notably Reavey, by insisting it was not about a bathroom key but Reavey’s efforts to “administer self-imposed justice to select juveniles represented by certain attorneys.” A stunned Reavey later called the allegation “a total fabrication.”
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Ok folks, this story goes on and on, and is utterly preposterous. A hacked-off prosecutor initiated a Grand Jury investigation into a "potty key!"

Obviously there was some bad blood between former Prosecutor Scheibel and someone, possibly even Mr. Reavey over something, not the bathroom--that the key came to represent in the mind of Ms. Scheibel. This was an argument over power, respect, boundaries, and who-knows-what. Ms. Scheibel so lost her perspective that she embroiled lawyers and the press in her pursuit of God-knows-what but which boiled down to Ms. Scheibel's perceived slight over her perogatives. To be viewed as the villain in something called "Pottygate" can not have been all that good for her career as a prosecutor.

The reality is this sort of thing happens all the time in your local courts. Petty annoyances play out in these silly little disputes. Rarely do they make the press, but inexplicable things occur that impact lawyers, litigants, and court employees while these power struggles play out behind the scenes. A dear friend of mine, who I've often referred to in connection with my accounts about small law spent two decades smoothly transacting his job at a local municipal court. But a couple of years before his retirement and unfortunate untimely passing from cancer, his community elected a court clerk who defiantly informed the judges that he would no longer do certain things the way those things had always done them in the past. Obviously, I know only a little about the underlying dispute, but I do know that that the arguments in that court caused no little angst for my friend the judge--I'm sure he tried hard not to let these feelings color how he did his job, but it can not have been easy.

In one of the Courthouses I routinely practiced in years ago, we "regular" practitioners had a key to the judges' restroom while lesser mortals had to go to the Plaza level of the building to use the facilities with the public at large. Eventually, the obvious bias in favor of the "insiders" was too much to be ignored and we all lost this privilege.

Pettiness abounds, but you aren't surprised if you're reading this blawg.

Boys and Their Toys: Just a Couple of Kidders...

2011-07-11T06:54:00.003-04:00

More from the annals of Boys and their Toys, Dan Kelly at the Reading Eagle reports on the investigation into TASER usage by two West REading, Pa cops:

Berks County detectives are investigating two West Reading police sergeants for allegedly stunning fellow officers, a relative and others with their department-issued Tasers, officials confirmed Thursday.

Matthew R. Beighley and Ryan Phillips had been suspended and are under investigation for improperly stunning people, said Joseph A. Brown, president of the Berks County Fraternal Order of Police Lodge 71 and a borough detective.

Police department records show Beighley and Phillips were suspended with pay April 26 and returned to duty Thursday. Brown called the incidents embarrassing to the department and all police.

Daniel P. Emkey, a Reading attorney representing borough Officer Chad T. Marks, said Beighley approached Marks from behind and stunned Marks in the buttocks as he was talking to a borough employee in borough hall in late March or early April.

Marks immediately reported the incident to another sergeant, who told Chief Edward C. Fabriziani, officials said. When Fabriziani took no action, Marks filed a written report with Fabriziani and Brown. Brown and Fabriziani took the matter to the district attorney's office May 2, officials said.

Marks declined comment and referred questions to Emkey.

"They got 2½ months of paid vacation and now Chad Marks has to resume working in that environment," Emkey said.

Officials said Beighley also allegedly stunned a family member in the chest.

During a 2010 Halloween party in Phillips' house, officials said, Phillips allegedly stunned Beighley and a woman, and Beighley stunned another officer and a woman at the same party. Officials said videos of some of the incidents were posted on YouTube until investigators seized copies of the videos and had them removed from the site.

District Attorney John T. Adams confirmed county detectives are investigating the incidents and that they have given their 60-page report to Fabriziani, Mayor Shane J. Keller and borough Solicitor Daniel P. Becker.

Fabriziani, Keller and Becker were unavailable. Beighley and Phillips could not be reached for comment.

Chief County Detective Michael J. Gombar said the investigation continues.

"We are investigating incidents of possible criminal wrongdoing within the ranks of the West Reading Police Department," Gombar said. "We are not an internal affairs unit. Our detectives investigate allegations of criminal acts that violate the state crimes code."
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Cops, what a bunch of jokers! Har, har . . . must have been real funny watching their pals thrash around with a TASER probe in their asses!

I wonder how it is that these Cops were able to muscle down the YouTube videos?

Oops, My Bad, er, My Glock I Mean

2011-07-11T05:47:00.005-04:00

Thomas Grassia, (pic) a Natick, Massachussets attorney makes the news for leaving something more embarrasing than his wallet in the bathroom. Here's reporter Norman Miler's story from the MetroWest Daily News:

A Natick attorney admitted in Framingham District Court yesterday that he accidentally left a loaded gun in an office bathroom in May. Thomas Grassia, 64, of Wayland, admitted there were sufficient facts to find him guilty of the improper storage of a firearm. That admission is not a guilty plea.

On May 10, police went to 5 Commonwealth Ave., Natick, an office building that is home to Grassia's law office. Someone had called police and said they found a gun in a fourth-floor bathroom, according to a police report filed in Framingham District Court.

Officers found the loaded 9mm Glock 26 on a toilet paper dispenser in one of the bathroom stalls. No one in the building knew who the gun belonged to, police said.

The same day, Grassia called police and said he had left the gun there accidentally while using the bathroom. Grassia had a gun permit at the time [ . . . ]

Judge James Barretto fined Grassia $500, placed him on administrative probation for one year and said he could not carry a gun during his probation.

This is not Grassia's first brush with the law.

The U.S. Court of Appeals last month upheld a federal judge's ruling that Framingham Police did not violate Grassia's constitutional rights when they arrested him in 2004.

Even though the criminal harassment and witness intimidation charges against Grassia were later dismissed, the detectives who obtained a warrant and arrested Grassia at his Natick law office acted reasonably, a panel of appellate judges ruled.
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Ouch, how to get some old stuff dredged up.

Personally, I don't get the whole gun thing as I suggested many times, here, at Bad Lawyer. My lunatic father handed out shotguns one Christmas when my brother and I were 13 and 14 and took us hunting. I shot a rabbit that did not immediately die. My father beat its brains out. I was so disgusted I never went hunting again. At 17 I went into the US Army and shot lots and lots of weapons as part of my MOS (military occupational specialty) as a M60-A1 tanker. Maybe I got it out of my system, but I've no interest in guns, weapons, or armament of any sort.

Then there is my healthy fear. I read about the idiots like this bozo who showing off a gun at a Memorial Day picnic kills himself, or this Darwinian triumph who kills himself demonstrating the safety features of his nifty new handgun by pointing it at his head and pulling the trigger.

What is the obsession? As I write this, another mass murder drama is unfolding in Grand Rapids, Michigan, but I can assure you that the preemptive pushback by the NRA and its cadre of political and media elites is already underway. God forbid that we the people ever come ot our collective senses over the need to fondle our guns...even while we're in the shitter.

Jamie Leigh Jones Loses Her Lawsuit Against KBR

2011-07-08T21:44:00.001-04:00

Nearly 2 years ago I told you about the then 4 year long struggle of Jamie Leigh Jones (pic), a former KBR employee who alleged that she was gang-raped and ultimately held captive in a shipping container while serving KBR in Iraq.

The point of my post then was to argue that Jones was entitled to be heard on the merits of her claim. A Texas federal jury has heard Ms. Jones' claim and rejected it. Prior to receiving the case, the federal trial judge removed various claims from consideration by the jury due to a lack of evidence including some of the more spectacular allegations made by Ms. Jones.

As you might expect the "tort reform" blawgers were already crowing in advance of this verdict based on reports from the trial raising doubts about the direction of the plaintiff's case including a fairly pessimistic progress report from Stephanie Mencier at Mother Jones. But don't kid yourself or let yourself be oversold on the lessons to be drawn from the tort "reformer" commentary--KBR and Corporate defendants don't want plaintiffs, right or wrong, to be heard on the merits in the courts. That is the agenda of this commentary and gloating. In fact, the ever-brilliant (but fallible) Ted Frank is demanding that Senator Al Franken apologize. For what? Apparently, Franken deserves condemnation because Franken advocated the position that citizens should not be required to submit their claims to arbitration and instead should have access to the courts. That Ms. Jones lost should demonstrate to the federalist society polemicists, et al. that they are overselling the snake oil of tort reform. Not surprisingly to me, American juries appropriately mete out justice when given the opportunity, as they apparently did in the case of Jamie Leigh Jones.

Do not draw the wrong lesson from the right verdict.

Manilla Gets 10-25 Years

2011-07-08T16:40:00.001-04:00

In May I told you about the Pennsylvania lawyer with the felony history who nonetheless continued to illegally possess and shoot guns with the net result that he killed a friend on the first day of hunting season. As I reported, then, David Manilla (pic, right) entered a plea of guilty to involuntary manslaughter of Barry Groh (pic, left). Today, Bucks County Judge Albert J. Cepparulo told Manilla he would never hold a gun again, or pull a trigger as long as he lived. Judge Cepparulo sentenced Manilla to 10-25 years in prison.

At the link there is an excellent local account with video of Manilla being walked out of the courtroom to begin his incarceration. At right, is a picture of Manilla entering the courthouse in the company of his girlfriend and her daughter.

Guns.

A Lawyer's Really Offensive Use of Language, C**t, Draws Colorado Bar Censure

2011-07-08T07:38:00.000-04:00

Jeff Gamso, an ACLU activist, Ohio attorney, and blawger behind the terrific blawg Gamso for the Defense revisits the State of Colorado's January censure of a lawyer who used the c-word in reference to a female judge during an semi-private conversation with two prosecutors. Gamso's essay is really worth taking some time with not the least for the fact that he embeds the great Geroge Carlin's Seven Words video. I'd be reducing to banality, Gamso's essay by repeating it's salient points . . . go read the original if you care about language.

Shame, Disgrace, Pain--Been There

2011-07-08T05:51:00.004-04:00

James Agar at the Grand Rapids Press reports on the sentencing of "a 3d generation" lawyer, Nancy Dilley (pic) who along with her husband, Charles Rominger, Jr. are going to federal prison for a variety of tax offense including not filing returns, paying taxes due, and in the case of Mr. Rominger, actively evading payment of taxes. They claim their financial problems can be traced to losses sustained in a Ponzi scheme.

Obviously, I strongly relate to Ms. Dilley's circumstances, perhaps an excerpt from Mr. Agar's story will illustrate why I do:

As a third-generation lawyer in a prominent legal family, Nancy Dilley's court appearance Wednesday brought nothing but shame. She stood before U.S. District Judge Paul Maloney in Kalamazoo, to be sentenced in a tax case. The charge was a misdemeanor, but nothing that Dilley – described as a nurturing mother, caring friend and hard-working, respected attorney – could have envisioned.

“She is mortally embarrassed and ashamed to have disrespected her family and the legacy that the Dilleys created over three generations,” attorney Mark Pendery wrote in a court filing.

Dilley, who earlier pleaded guilty to failing to file a federal tax return in 2007, was sentenced to eight months in prison [ . . . ]

Once released, she will serve one year on supervised release. She owes $86,703 in restitution. She is to self-surrender when notified by the government.

Her husband, attorney Charles Rominger Jr. (pic), awaiting sentencing for tax evasion, asked that she avoid incarceration. In court documents, he urged the judge to blame him, not his wife, for tax troubles. He faces up to five years in prison[.] Rominger said that he is the “real target” of federal prosecutors, who used “my conduct to exacerbate Nancy's sentence.”

“In sentencing my wife, you should not attribute my conduct to her,” he wrote. “She is well regarded for her work ethic, honesty and compassion. She has served her family legacy well and is humbled by this shameful event.”

He asked Maloney to “not separate Nancy” from their son, “especially in light of my pending sentence.”

The couple failed to file federal tax returns from 2001-2007, Assistant U.S. Attorney Matthew Borgula said. He said Dilley, living on a 68.5-acre horse ranch in Ada Township, has not provided an adequate explanation, Borgula said.

“For example, during 2006 and 2007 alone, over $350,000 in income flowed undetected through (Dilley) and Rominger's defunct bank accounts, from which the following disbursements were made: $16,415 to clean the house and provide in-house day-care, $57,780 to American Express … $8,200 in care payments for expensive cars registered to third parties … ,” Borgula wrote.

He said, however, that Dilley had “genuine remorse … from the guilt of staining the Dilley family name.”

Dilley, a life-long Grand Rapids-area resident, had no previous criminal record. Her family, friends, clients and pastor wrote letters on her behalf. Former Kent County Circuit Judge Dennis Kolenda said he never expected to vouch for a defendant's integrity, but wrote: “Nonetheless, although I regret the circumstance which necessitates my first such letter, I write it unreservably on behalf of a still-trusted colleague.”

“Ms. Dilley's conviction creates for her a depth of pain and embarrassment unique to her as a member of the Dilley family,” Pendery, her attorney, wrote in court documents.

Her grandfather started a law practice in Grand Rapids, and her father, Albert, invited her to attend law school and join the family firm after she graduated from the University of Michigan.

“There is nothing more painful for her than the disappointment she has brought to her family. There is nothing more painful for her than the footnote in the Dilley family history that she stood before the court also as a criminal,” her attorney wrote.
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There's a picture of me that is almost identical to the one of Ms. Dilley, in shock, tear-stained, shamed. It's the US Marshal's booking photo taken after I entered my guilty plea. Her US Marshal photo probably comes from her sentencing. I feel her pain.

There are obvious differences between Ms. Dilley's situation and mine. She pleaded to a misdemeanor, my offense was one count of attempted tax evasion, a felony. She received 8 months, I did 5 months. She was living a much more luxurious lifestyle by all indications, but we both clearly were in way over our heads and what was once prominent legal careers are gone.

But, truth be told, there is life after the law. It's not easy. The financial stressors following a federal tax conviction may never go away, but one day at a time there are ways to resume a valuable life. I found that attending meetings of the OurState Lawyers' Assistance Program and Alcoholics Anonymous where I share my experience with others and more importantly--get help. I know this works for me and others say it helps them. I have hope that maybe I will return as a licensed lawyer, someday--then again that may not happen. I do know that whatever I end up doing my empathy for others, especially for those in legal peril has grown enormously. Good luck.

Hang in there.

Is This Bar Discipline Worthy?

2011-07-07T10:17:00.000-04:00

One of the Casey Anthony's defense lawyers, Cheney Mason, responded to television and news photographer cameras trying to intrude on the lawyers' post-trial supper with the pictured gesture. Another lawyer filed a Bar complaint claiming the gesture reflects poorly on Florida lawyers. You be the judge, fair comment by Mason?

Court to KY Lawyer/Alleged Rapist, You've Suffered Enough

2011-07-07T09:42:00.000-04:00

Here's a disturbing story. Kentucky lawyer, D. Keith Johnson (pic) allegedly raped a local woman but was able to plead down to a misdemeanor. His sentence: 90 days house arrest with time off for the family va-kay....nice. Here's Jim Hannah's account for the Cincinnati Enquirer:

A Northern Kentucky lawyer charged with felony rape has pleaded guilty to a misdemeanor sex offense, angering the victim in the case. D. Keith Johnson, 45, of Fort Mitchell pleaded guilty Friday in Campbell Circuit Court to the misdemeanor charge of sexual misconduct. Kentucky law states that someone is guilty of this crime when they engage in sexual intercourse without the other person's consent.

Judge Fred Stine sentenced Johnson to 90 days of house arrest, but the Newport lawyer will be allowed to take a summer vacation during that time.

"Talk about a slap on the wrist," said the victim's lawyer, Tad Thomas of Louisville. "He gets 90 days in his own home ... and he is allowed to take vacation in the middle of it. My client is outrage at this sentence."

Johnson was also ordered to pay $655 in fines and court costs, complete 100 hours of community service, have no contact with the victim, take substance abuse and mental health evaluations and complete any recommended treatment.

If Johnson violates any of the conditions of his sentence during the next 12 months, Stine could order Johnson to serve one year in prison. There is nothing in Stine's order that requires Johnson to attend any sex offender treatment or register as a sex offender.

"It is incredibly disappointing that he gets this sentence," Thomas said.

Johnson's attorney, former Campbell County Commonwealth's Attorney Jack Porter, didn't return calls seeking comment. Porter previously said his client, who is married with children, admitted to having a romantic encounter on Jan. 1 in Campbell County but that it was consensual.

Thomas said his client was agreeable to the reduced charge only if Johnson was sentenced to prison time. Thomas said his client would try to "seek justice" through a civil lawsuit.

Johnson's guilty plea and sentencing was moved to the Friday before the Fourth of July holiday weekend despite the fact that a court calendar posted on the Kentucky Court of Justice website listed Johnson's next hearing date for the Tuesday after the holiday [ . . . ]
Thomas said the special prosecutor assigned to the case, Fayette County Commonwealth's Attorney Ray Larson, notified his client that the hearing was last week but didn't inform her until after the fact that Johnson would get no jail time.

When asked whether he thought Johnson received favorable treatment because he has been a lawyer for more than 20 years in Northern Kentucky, Thomas said, "I don't know, but I'm very surprised at this sentence [ . ]"
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Maybe, Johnson didn't rape this lady. Perhaps his plea deal was reluctantly entered into because of the significant legal peril how does this sentence make any sense. What's left out my excerpt was that there was apparently something real shady about the scheduling of the hearing in a way in which it appears that the victim and her advocates were prevented from participating. In short what happened, here, smells like special treatment.

We shall see what the Ky Bar does with his license, probably not much since he took a misdemeanor.

Erwin Chemerinsky on The Supreme Court Closing the Doors to Justice

2011-07-07T08:36:00.001-04:00

Professor Erwin Chermerinsky has a scathing review in a Op-Ed at the LA Times, of the U.S. Supreme Court term just completed. Chermerinsky concludes that the Court has lost faith in the justice system to resolve the disputes of citizens. Cherminsky sets out the examples and observes:

• The court ruled that patients who suffer devastating injuries from generic prescription drugs cannot sue the manufacturers for failing to provide adequate warnings even when drug companies making the non-generic versions of the same drugs can be sued on the same basis.

• The court held that standard clauses in consumer contracts calling for arbitration preclude consumers from joining class-action suits even when the effect almost surely would be that no individual lawsuits would be filed because the amount involved was too small.

• The court decided that employees who claim to be victims of sex discrimination cannot sue in class actions when the employer has a policy that prohibits discrimination.

• The court concluded that a man who spent 18 years in prison for a murder that he did not commit could not sue the prosecutors who hid key evidence.

• The court said that taxpayers cannot bring an action in federal court arguing that a state impermissibly established religion by giving tax credits that go almost entirely to religious schools.

• The court held that prisoners convicted in state court cannot obtain a hearing in federal court even when they have new evidence that calls into question their convictions — because of matters such as ineffective defense counsel or failure of prosecutors to turn over evidence — notwithstanding a federal statute that expressly authorizes such hearings.

One way of interpreting these decisions, and others like them, is that the conservative justices are simply pro-business and pro-prosecutor and are denying access to the courts to consumers, employees and criminal defendants. That certainly explains the rulings. But something else that is even more disturbing seems to underlie these rulings: distrust of the courts.

In limiting class-action suits, Justice Antonin Scalia expressed the concern that such litigation terrorizes business and forces them to settle even non-meritorious claims. In precluding suits for money damages by those injured by prescription drugs or those wrongly incarcerated, the court gives little weight to the need for such damages to deter wrongdoing in the future. In denying prisoners the chance to prove the unconstitutionality of their convictions despite a statutory provision expressly allowing for such hearings, the Supreme Court seems distrustful of lower federal courts and worried that they will unjustifiably release dangerous individuals.
[emphasis supplied]
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It was a pretty grim term for individuals, citizens, and consumers. Remember when the Supreme Court was supposed to be looking out for the little guy? Me either.

Byron G. Stewart Is Drinking His Law License and Freedom Away

2011-07-07T07:22:00.000-04:00

The Missouri disciplinary authorities have suspended Byron G. Stewart a lawyer who has progressively moved from simple drinking and driving into felony drinking and driving. Here's a link to their opinion courtesy of the Legal Profession blawg. Apparently, Mr. Stewart impressed the authorities with his recovery, but the Mo. Supremes think that a felony drunk driving conviction reflects poorly on the profession and are suspending Mr. Stewart for 6 months. Mmmmm, maybe.

Leland Beasley Is a Piece of Crap, but....

2011-07-07T06:06:00.003-04:00

Seriously, Leland Beasley (pic) is a piece of crap. He is guilty of producing child porn which means he turned at least 10 children into his victims. Beasley is garbage. But please explain how it is that a federal judge justifies giving him a sentence of 290 years in prison? Here's Kristin Gosling's local account for KDSK:

The largest sentence ever imposed in the Eastern District of Missouri came down against a child pornography producer. The U.S. Attorney's Office said Leland Beasley was sentenced to 3480 months in prison, which is more than 290 years.

At his jury trial in April, Beasley was found guilty of 10 counts of production of child pornography and two counts of possession of child pornography. The ten counts of production involve 10 different victims.

According to testimony presented at trial, Beasley owned and operated video gaming businesses called Gamestation Sector 19, located on Lemay Ferry Road in St. Louis County. Several of the victims were molested by Beasley and videotaped at this business.

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Any long time follower or reader of this blawg knows the Bad Lawyer earned his props going after pedophiles, what I want to know is why are absurd sentences being handed out. We get it. This man is a beast. But isn't a life sentence or one just short of his life expectancy, if he can stay alive as an SO in prison--sufficient to send the message? We are entering an era of science fiction in some of the sentencing schemes.

Mike Lukovich Nails, the Casey Anthony Verdict

2011-07-06T20:06:00.003-04:00

18 Months-4 Years for Misdemeanor Resisting Arrest. Gee, That's Fair!

2011-07-06T08:12:00.002-04:00

Judge Garfunkel

A New York man was sentenced to 18 months to 4 years in the State Penitentiary by a New Hamsphire judge for a misdemeanor offense of resisting arrest. This is the Union-Leader's account:

A Rochester, N.Y., man convicted last week of misdemeanor assault on a Manchester police officer and resisting arrest could spend four years in prison under a state law that allows extended sentencing for minor crimes.

Hillsborough County Superior Court Judge David Garfunkel (pic) on June 29 ordered Dominic Stanin, 44, serve 18 months to four years in state prison on a resisting arrest conviction. The judge also imposed a 2- to 4-year suspended sentence on the simple assault conviction. The offenses occurred May 19, 2010.

A misdemeanor conviction carries a maximum 12-month term in the county house of correction and up to $2,000 in fines. However, state law allows the court to impose up to 2- to 5-year state prison terms if an individual has two prior convictions and served sentences exceeding one year, Hillsborough County Attorney Dennis C. Hogan said in a statement Tuesday.

Stanin served terms exceeding one year for three prior New York convictions, Hogan said. The convictions were for possession of stolen property, robbery and criminal mischief, he added.

A Hillsborough County jury convicted Stanin in May of pushing Manchester police Sgt. Jamie Gallant with his hand and resisting arrest, Hogan said.

It costs at least $25,949 a year to keep an inmate in prison in New Hampshre according to the National Institute of Corrections.
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Neat factoid at the end of this story. Puts it in perspective.

Salvatore Piemonte is Innocent

2011-07-06T07:32:00.001-04:00

Syracuse attorney Salvatore Piemonte is innocent of taking $20k from drug dealers in a marijuana deal gone wrong. This is an excerpt from John O'Brein's Syracuse.com account of Piemonte's acquittal:

The jury deliberated three hours in federal court in Utica before finding Piemonte innocent of the felony charge of aiding and abetting a conspiracy to sell marijuana. A felony conviction would have automatically disbarred him from from the practice of law. Piemonte has two previous misdemeanor convictions -- for witness-tampering in 1999 and filing a false document with the IRS in 2001.

When the jury announced the verdict at 2 p.m., Piemonte patted the back of his lawyer, Edward Z. Menkin, then leaned his head on Menkin's shoulder and began to break into tears.

"This is without a doubt one of the most difficult things I've had to go through in my life," Piemonte said. "I just want to go back to work."

Piemonte, 56, a former prosecutor and village court judge, was accused last year of accepting $20,000 in cash from the three drug dealers in exchange for providing them with phony documents that they used to convince their marijuana supplier in Canada that their load had been seized by police.

Menkin told jurors the prosecution's case was based on three convicted criminals who'd concocted the story of a crooked lawyer to get reduced prison sentences.
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Wow, talk about a bullet dodged! It's a rare thing these days to see a federal jury return a not guilty verdict. What remains to be seen is whether the feds will let this guy alone.

What Blago Has to Look Forward To

2011-07-06T06:05:00.000-04:00

The St. Louis Post Dispatch addresses the unspoken as it relates to former Governor Blagojevich who is estimated to face something in the neighborhood of 10 years in the BOP custody. This is an excerpt from Michael Tarm's Associated Press story:

An eight-digit number affixed to his prison clothes. A job scrubbing toilets or mopping floors at 12 cents an hour. His incessant jogging confined to a prison yard. Most painful of all, restricted visits from his wife and two daughters.

After sentencing for his conviction on federal corruption charges, that is likely to be the new life for impeached Illinois Gov. Rod Blagojevich, who is more accustomed to fancy suits, a doting staff and a comfortable home in a leafy Chicago neighborhood.

Most legal experts estimate that Blagojevich, 54, will get close to a 10-year sentence, though technically he faces up to 300 years after he was convicted last week of 17 of 20 counts at his retrial. [. . . ]

One fellow Illinois politician who served time in federal prison on corruption charges, former Chicago City Clerk Jim Laski, says Blagojevich can't begin to fathom how hard prison will be. "I missed my kids' birthdays, graduations. ... You don't ever see children playing, there's a sense of total isolation. You're subject to body-cavity searches — it's horrible!" said the 57-year-old Laski, a father of three. "And I was only in two years."

Once he walks through the prison doors, no one will care that Blagojevich was once governor, Laski and others said.

"If he thinks he'll come in and get special treatment, he's in for a rude surprise," said Phil Turner, a former federal prosecutor in Chicago. "If you come in with that attitude, prison guards and other inmates will go out of their way to break you."

No sentencing date has been set yet for Blagojevich, though it should happen by year's end. A decision on what prison Blagojevich will go to won't be made until weeks after a sentence is imposed, but it could very well be the same facility in Terre Haute, Ind., that houses another former Illinois governor, George Ryan. Lawyers will likely appeal Blagojevich's convictions, but appeals of federal convictions rarely prevail.

What may weigh most on Blagojevich's mind is the welfare of his daughters — Amy, 14, and Annie, 8. If he does spend a decade or more imprisoned, he could miss many landmarks of their lives, including their high school and college graduations.

"There's always a sense of precariousness because a child whose parent has gone wonders, 'What else in my life can be taken away?'" said Mindy Clark, spokeswoman for Oregon-based Children's Justice Alliance, which helps families of imprisoned relatives.

While Blagojevich would go to a prison with minimal security, possibly with just a simple fence around it, his routine will be highly regimented, including limits on family visits and phone calls.

Laski said he ran into Blagojevich in a federal court restroom before his retrial ended and tried to convey how crushing the prison experience is. Blagojevich, he said, looked shocked.

"I told him the worst day in my life, bar none, was the day I said goodbye to my children and headed off to prison," he said. "I said, 'Rod, you better pray you don't have to go through that.'"
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Obviously, I've been talking about this at considerable length, here, on Bad Lawyer. Get your Goodfellows-ideal of a bunch of happy guys sitting around razoring garlic into a pasta sauce out of your head. Federal prison is tough, tough, tough and this story gets it just right when they describe the worst part of it being your separation from you kids, family and friends.

I found it nearly impossible ot say "goodbye" to my kids last November when I went off to do my 5 months in custody. When the BSL dropped me off in front of the OurTown federal courthouse, I kissed her and jumped out of the car at the curb. I did not look back, I could not look back. It was many days before I spoke via phone to my family, again. While I was away, my daughter gave birth to my grandson. I was not there. While having them back in my life is wonderful, I have this permament pain in my heart.

As I said in connection with my posts about Lord Conrad Black, and the Mississippi judges who were recently resentenced--federal custody on any level is horrible, stressful, frightening, and difficult in the best of all possible situations. By the way, if Blagojevich is sentenced to more than 10 years he will not be assigned to a minimum security camp.

Prosser Grabs Newsman's Mic, On Second Thought Gives it Back

2011-07-05T12:54:00.000-04:00

The picture is of Justice David Prosser of the Wisconsin Supremes who allegedly got all chok-y with a female colleague he angrily disagreed with. At the link you can see an extended video of the mic-grabbing incident and interviews with other Wisconsin Supreme Court Justices including the very circumspect Chief Justice.

Things are so politically fractured in Wisconsin right now, that the local Sheriff investigating the alleged assault by Prosser on his colleague felt constrained to recuse himself after it was claimed by Wisconsin republicans that the Sheriff, a democrat, would be biased against the republican Prosser. Here's a link to that story.

After 15 Disciplinary Actions, Is Robert Slameka a Bad or Good Lawyer?

2011-07-05T10:18:00.002-04:00

Reporter Joe Swickard at the Detroit Free Press has this profile of Detroit attorney Robert Slamka, the subject of much official and unofficial scrutiny. Somehow despite 15 separate disciplinary actions resulting in admonishments and reprimands, but he has never been suspended and the Courts keep referring cases to him for representation of indigent locals. Here's an excerpt from Swickard's story:

Attorney Robert Slameka (pic) has amassed quite a record: He has been admonished 11 times, reprimanded four times and had a client's conviction overturned because of his poor performance.

And the record could get worse: The state's Attorney Grievance Commission is prosecuting him on charges that he improperly revealed a client's purported confession when the man tried to back out of a plea deal in 2007. He was tried on those charges in May and written arguments are due this month. There is no timetable for a decision. If he is found in violation of professional rules, Slameka could be reprimanded again or have his license suspended.

Slameka's 42-year legal record stands out among Michigan lawyers. A review of Attorney Disciplinary Board records shows only four other lawyers in the state have been reprimanded as many times as Slameka, but three of them also have been suspended.

"Its inexplicable how (Slameka) has avoided having his license suspended," said Larry Dubin, a University of Detroit Mercy law professor and ethics expert who helped set up the state's system for policing attorneys.

Slameka repeatedly declined to speak to the Free Press about his past troubles, the current complaint -- which he briefly described as "political in nature;" retribution for a more than two-decade-old murder case -- or the impact of a 2009 National Public Radio report that made him the face of bad court-appointed lawyers: "A lot of lawyers in Detroit say if you want to see what's wrong with this country's public defender system, just take a look at Bob Slameka: He has gotten into trouble a lot during his 40 years as a public defender, but the county still appoints him to cases."

Slameka's lawyer, Thomas Loeb, said that "four reprimands in 42 years of practice doesn't trouble me at all."

He added that two reprimands dealing with clients' fees probably wouldn't be problematic under recent court rulings. Loeb said Slameka is a solid attorney often dealing with difficult clients in serious trouble. "He's a good guy," Loeb said. "He knows (criminal) court as well as anyone else." [ . . . ]
A private attorney, Slameka remains on Wayne County's list of lawyers eligible to be appointed to represent indigent clients because the sheer amount of cases moving through the county's criminal justice system far outpaces the number of public defenders, and each defendant is entitled to counsel.

The standards aren't stringent. To be on the list, a lawyer has to be a member in good standing of the state bar and Wayne County criminal bar associations, attend ongoing education programs and have an office in Wayne County, said the county's Presiding Circuit Judge Timothy Kenny. [ . . . ]
Attorney Grievance Administrator Robert Agacinski chalked up part of Slameka's woes to his caseload and longevity, saying a busy criminal defense lawyer can get many complaints from unhappy convicted clients. And recently retired Wayne County Assistant Prosecutor Augustus Hutting stuck up for Slameka: "He's straight to his word. In 15 years, I've never had a problem with Bob."

Hutting said Slameka can size up a case quickly and cut a realistic deal when necessary. The brusqueness, he said, may seem insensitive or cold to someone expecting a table-thumping shouter. But Hutting said he has never seen Slameka act contrary to his client's interests.
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The real question is whether Slameka's clients receive adequate representation and whether those who are convicted can automatically claim ineffective assistance of counsel based on this track record. You see the problem?

Give Me My Prison Porn!

2011-07-05T09:41:00.000-04:00

A Macomb County Michigan man is suing the State of Michigan demanding that he and his fellow be allowed porn in prison. I realize I'm not breaking this story or even the first to re-blawg the story, but I'm one of the few blawgers to have actually been an inmate. One of the remarkable things about life in federal custody is that there is a bizarre to me at least, form of prison porn. Before I talk about what passes for prison porn let's look at the story from MLive.com:

"Gov. Rick Snyder and the state are subjects to a lawsuit filed by a Macomb County inmate over a prison pornography ban, among things, reports show. The Detroit News: "A Macomb County inmate is suing Gov. Rick Snyder and the state, claiming he is being subjected to cruel and unusual punishment because jail rules ban pornographic materials.

"Kyle Richards (pic) filed the five-page handwritten lawsuit June 10 in U.S. District Court in Detroit. He wants a judge to let inmates possess erotic/pornographic materials along with personal televisions, video game consoles and radios." [ . . . ]

According to The News, state prisons allow inmates to possess pornographic material with a few exceptions. Playboy and Penthouse magazines are allowed, but porn depicting simulated rape, bestiality and sadomasochism is forbidden."
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At Club Fed, Playboy and Penthouse were not permitted let alone some of these more exotic....mmmm tastes. But there was there were these "urban" flavored publications that featured photography of scantily-clad (understatement alert) women with a particular emphasis on the Boo-tay.

I spent 3 years in the US Army 1972-1975, so I've seen my share of centerfolds, but this "acceptable" prison porn was pretty bizarre stuff. Like R.Crumb caricatures of women with impossibly large butts (a tame example, right) covered by a line of something that looks like dental floss. It was everywhere. Until I went to prison I didn't know this stuff existed. Since then, friends tell me you can buy this sort of publication or order it for your absent loved one via inner OurTown gas stations and cigarette vendors. Really?

One of my bunkees during my 5 months at Morgantown was this big sweet kid from Louisville, Ky, nicknamed, Big. At 6'7" this was an appropriate name for my soft spoken pal. Big's hustle related to obtaining and re-selling these slightly pornographic photos of girls that looked "homemade" as if from your girlfriend or wife. These were pretty nasty things, and guys would come by our cubicle to thumb through these 6x4s. The conversation over these pics were hysterical as these guys would talk about the girls in the pics as if they were girls they actually knew from the streets. I think Big got these sent to him from classifieds at the back of the Thug-porn publications. Frequently during locker sweeps, Big would lose his collection of pictures because of the contraband limitation on the number of personal photographs and publications each inmate was limited to at any given time.

Chicago Tribune White Collar Crime Gallery

2011-07-05T07:06:00.000-04:00

According to the Chicago Tribune, the sociologist Edwin Sutherland coined the term: White Collar Criminal, circa 1939, to describe acts "committed by a person of respectability and high social status in the course of his occupation." The Tribune points out taht white-collar crime costs the U.S. some $300 billion annually which is based on FBI statistics. At the link a gallery of 17 white collar criminals from our era.

Court: Don't Get Hung Up on the Details, "Worrisome"...Kill Him Anyway

2011-07-05T06:41:00.001-04:00

Cleveland.com reported last week on the 6th Circuit Court of Appeals decision upholding the death penalty in the case of Tyrone Noling, (pic.)

According to the Court's decision, there are some real concerns about whether Mr. Noling did the deed. Regardless the Court says under existing law there is no way to stop this freight train....scary. This is reporter Andrea Simakis' summary of the decision and implications for Noling:

Though two federal judges described his case as "worrisome" and questioned whether the state would be killing an innocent man, the 6th U.S. Circuit Court of Appeals decided to let Tyrone Noling's 1996 death sentence stand.

The ruling by the Cincinnati-based court Wednesday also bars Noling from presenting new evidence that others might have committed the double murder that put him on Ohio's death row.

Kelly Schneider, Noling's longtime attorney, called the decision "heartbreaking."

"Basically, they see problems in Tyrone's case but [write that] their hands are tied by the rules that govern their ability to grant relief," Schneider said. "Literally, we've got a man I believe to be innocent who's just a few steps away from death and [they say] their hands are tied. It's horrifying."

Noling was sentenced to death six years after the bodies of Bearnhardt and Cora Hartig were found dead of gunshot wounds on the floor of their kitchen in Portage County's Atwater Township.

He was largely convicted on the word of three men, one of whom admitted during the trial that he'd been coerced by prosecutors and police to implicate Noling to save his own skin. The other two men also later recanted, saying they lied on the stand to avoid a death sentence.

Earlier this year, another man claimed that his foster brother, Daniel Wilson, admitted to killing the Hartigs. Wilson was executed for an unrelated murder in 2009.

Those questions about Noling's guilt plagued at least two members of the three-judge panel.

Citing the "worrisome scenario" of possible witness coercion, "absolutely no physical evidence linking Noling to the murders" and the existence of "other viable suspects that the prosecutor chose not to investigate or did not know of at the time," the panel said nonetheless that the lower courts had not acted unreasonably.

A legal expert said the judges had to abide by a sweeping antiterrorism law passed after the 1995 Oklahoma City bombing that severely restricts the ability of federal courts to overturn state court decisions.

Federal judges who look at a state case and think "the state got it absolutely, totally wrong cannot reverse that case unless they find that . . . the state was unreasonable in being wrong," said Michael Benza, visiting associate professor at the Case Western Reserve University School of Law.

"It really has created this bizarre situation, as in the Noling case, where you have a court saying, 'this conviction or this sentence is, in fact, unconstitutional in our opinion, but we are not authorized to do anything about it.' "

Though Noling has appeals pending in state court, his federal appeals are all but exhausted. His defense team will ask the U.S. Supreme Court to hear his case, but the odds are long. Of 10,000 to 20,000 petitions each year, the nation's most powerful jurists agree to hear "like 75," said Benza.

Confederate Flag License Plates?, Why Not Al Qaida Plates?

2011-07-04T07:02:00.001-04:00

Dallas-Fort Worth CBS is reporting that Texas is considering officially putting the confederate flag on its license plates which raises the question, why not Al Qaida license plates? Here's the CBSDFW.com story:

Would you buy a license plate with a Confederate flag on it? State officials are looking at possibly launching a new Texas state license plate honoring veterans of the War Between the States.

Mr. Hilary Shelton, with the NAACP in Washington, D.C., said that the Civil War may not be something we want to celebrate.

“When many look at that history, we think about it in terms of secession, that is we were seceding from the Union in the southern parts of the country,” explained Shelton. “Many would view that, quite frankly, as treason, because they meant to actually destroy the existing governmental structure. But when we dig deeper, the issue becomes even more offensive to many African Americans and those that sought freedom for those of darker skin in our country.”

“When you understand the Confederate history, and what it stood for,” said Dallas resident Mark Jones, “it’s directly slapping African Americans in the face.” In terms of the Civil War, Shelton said that the Confederate flag was actually very un-American. “It was the flag that was flown during a war to actually tear the nation apart,” Shelton explained.

“I don’t think that this will unify us,” said Carrollton resident Carolina Arreola. “Our patriotism is to the Unites States flag.” But the Texas Sons of Confederate Veterans have renewed their push for a Texas license plate that includes the rebel flag in its design [. . . ]

Currently, nine states already allow the license plates. A statement in a recent newsletter from the Texas Division of the Sons of Confederate Veterans said, “…the Florida Division, the eleventh state, has just filed a lawsuit against the DOT there after their request was denied. I am confident their case will prevail, because legal precedents are in place. I am hopeful that the Texas DOT also realizes this as they consider our application.”
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Arguably, some southern states can claim confederate heritage, because God knows you want to be proud of your terrorist past--but, Texas was not even a state during the Civil War. An article at the Houston Chronicle indicates that Texas is one vote short at the DMV board to obtain this license option. How nice.

I consider this sort of thing garbage. The same sort of politicians who want to slap confederate flags on their license plates would howl over the "dimming the light of liberty" if a corporate television network left "under God" out of the pledge allegiance as part of a golf broadcast. The demagoguery behind this sort of thing turns my stomach.

Roger Clemens Perjurer/Lance Armstrong Fraudster--New York Times Columnist: So What?

2011-07-03T19:37:00.000-04:00

Jonathan Mahler writing at the New York Times yesterday argued that pending prosecutions of Roger Clemens for perjury and prospective indictments of Lance Armstrong are misguided. Mahler is highly critical of Roger Clemens, not so much for lying to Congress during its investigation into performance enhancing drugs but for his tone deaf public relations and press conferences which ought to tip you off to this journo's take on sports fraud.

Mahler has the following to say about Lance:

"Then there’s Armstrong, the cancer survivor who won, again and again, the most physically demanding contest in all of sports and as he did so spun himself into a role model and inspiration to millions. But would it really be a surprise to discover that his Nike-sponsored mythology of survival and triumph was really just that — mythology?

There was real betrayal in the revelation that baseball was contaminated. With cycling, we knew better. The history of the sport is the history of performance-boosting pharmacology, from the cocaine and strychnine cocktails of the 19th century to today’s designer hormones. Including Armstrong, six of the last seven riders who finished first at the Tour de France have been linked to doping.

When the first Balco indictments were handed down in February 2004, they were trumpeted as a blow for democracy, the sports equivalent of the toppling of the statue of Saddam in Firdos Square, which had taken place less than a year earlier. 'This is not just a call to action,' John Ashcroft, the United States attorney general at the time, declared in a nationally televised news conference. 'It is a call to the values that make our nation and its people strong and free.'

But a lot has changed since then. Most notably, we’ve lived through two endless wars and our nation’s worst financial crisis since the Great Depression. Now here we are, well into the second year of the Armstrong investigation, and we are still waiting for criminal charges to be brought against top executives at many of the firms that left our economy in tatters [. . . ]

For his part, [federal investigator Jeff] Novitzky is starting to look more and more like Ken Starr, circa 1998, myopically pursuing a case whose relevance diminishes with each new news cycle.

Armstrong’s critics might call him a cheat and a liar, but what law did he break?

The government may find a way to charge him with defrauding the United States Postal Service, one of his sponsors, saying he falsely claimed he was clean. This may be a legitimate legal argument, but it won’t be easy to prove. More to the point, is it worth trying to prove?

If there’s one thing we’ve learned from the steroids era — and Novitzky deserves credit for this — it’s that a lot of professional athletes will cheat if they can. They might even lie about it. A handful of prosecutions is not going to change that.

Of course, Armstrong was more than a cyclist. He was a humanitarian, as much Greg Mortenson — the mountain-climber-cum-Third-World-school-builder whose own heroic narrative has come under question — as Roger Clemens. In other words, he’s just another guy who disappointed us. The sports world, like the real world, is full of them. Do we really need to devote scarce government resources to proving they let us down?

A Georgia congressman, Jack Kingston, has asked the F.D.A. for a financial accounting of the globe-trotting Armstrong investigation. Whatever we have spent to date, it will rise exponentially if a prosecution goes forward. As we saw with the trial of Bonds, the last object of Novitzky’s obsession, there is no guarantee that it will result in a conviction that justifies the investment. How much is it going to cost us to add Lance Armstrong to our list of compromised heroes, when, let’s face it, in the court of public opinion he’s already there?

The real moral of Novitzky’s taxpayer-financed crusade may be that it’s time to put sports back in their proper place. Our nation’s values are not at stake, as Ashcroft once had us believe. But that doesn’t mean we can’t all still hope to witness some truly inspiring sports moments in our lifetime that aren’t ultimately tainted by P.E.D.s.

While we’re at it, it may be time to look differently at the tainted performers themselves, not as heroes or villains but as human beings who existed in the context of their dirty games, who did some impressive things on the field and some deplorable things off it. Their falls from grace may have something to teach us not only about their hubris but also our own misplaced desire for transcendent athletes. Those are lessons that go beyond sports, and we can learn them without the help of a modern-day Eliot Ness."
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It's pretty obvious what Jonathan Mahler's bias is. From the ridiculous and gratuitous quote from that great sportsman, John Ashcroft, to comparing Jeff Nowicky to Elliot Ness and Kenneth Starr, to the overwrought discussion of Lance's bout with cancer, and finally, to Lance's cancer charity--we are obligated to conclude that Lance Armstrong is a victim if you accept Mr. Mahler's argument.

Bunk.

Let's think about it. You decide you are going to steal let's say . . . mmmmm, how about something in the neighborhood of $200 million dollars. You could knock off an armored car, or you could go into a variety of white collar criminal activity, or you could perhaps take your extraordinary athletic prowess and aggressively manipulate your body with designer drug cocktails to devastate your competitors. Then you could misrepresent that you and your co-conspirators are cleanly competing in a notorious dirty sport. You can claim that you are different, you are sportsmen of integrity and thereby harvest huge international corporate and governmental sponsorships running into the tens of millions of dollars. If anyone, anywhere crosses you, well nothing beats a good defense better than a good offense. Consequently, you lawyer-up and turn the civil law system into a weapon, suing your critics or anyone else into submission. In litigation you lie and perjure when asked about the Performance Enhancing Drugs you and your cohorts are cheating the system with--and by abusing the legal system you obtain additional millions.   These in are some of the allegations against Armstrong.

Should someone be prosecuted for obtaining this kind of money, by illegally and fraudulently cheating and covering up mail and wire fraud, because as we all know "everyone in cycling cheats?"

Look, I was prosecuted and went to prison for cheating on my tax obligations. Lots of others cheat and lie about their tax obligations and don't get prosecuted and don't go to prison, but you won't hear me say I was treated unfairly. FCI, Morgantown was filled with persons who did various illegal acts, often de minimus offenses that others do all the time and don't get prosecuted or incarcerated for. In some instances I felt like there were some examples of miscarriage of justice, nonetheless thousands of criminals are doing substantial periods of incarceration for fraudulent financial crimes involving far less fraud and substantially less than the sums of money than Armstrong is alleged to have gamed the cycling world and its sponsors for. You don't prosecute someone committing financial fraud on the scale that Armstrong is alleged to have committed it, then you might as well open the prisons.

So what about Armstrong's charity? Before the full outline of what appears to be the criminal enterprise took shape I was in the Armstrong's charity-made-deviations-irrelevant camp. Most of his defenders are in this camp. Sad. Yeah, the Livestrong Foundation is great. But don't forget, there is an inextricable public relations aspect to the foundation that is providing camouflage for Armstrong and never forget that many legendary crooks take refuge in their charitable works, let's see Bernie Madoff comes to mind.

The Second Stage Team Time Trial TdF 2011

Today is the second stage of the Tour de France, you can get great moment-to-moment coverage at VeloNews. The leading contender is Alberto Contador, who in prior years a great Armstrong rival, and one time team mate. Contador is presently fighting his own international cycling doping ban, and faces the prospect of winning this year's tour only to have the victory invalidated based on his pre-Tour doping offense. Contador claims his offense was due to eating doped meat! Cycling is a bizarre world, no doubt. For many years, I was on pins and needles excited over following Lance and his various teams: 7-11, Motorola, US Postal Service, and Discovery. This year I'm long past being disillusioned, but I am a little disgusted that a sports writer at the New York Times would argue that sports frauds like Lance Armstrong is alleged to be are victims of overzealous prosecutors. Give us a break.

Truth from the NYT Obituary of Richard H. Poff, Retired Virginia Supreme Court Justice

2011-07-02T16:07:00.000-04:00

Congressman Richard Poff

As a young man of this era, I confess some embarrassment at not remembering Richard H. Poff a Virginia Congressman that Richard Nixon nearly nominated to the US Supreme Court in 1971 to replace Justice Hugo O. Black, Lewis Powell received the nomination instead. Poff who died Tuesday at age 87, withdrew from consideration because he was ashamed of his anti-civil rights voting record especially his publicly-professed segregationist views. Poff aggressively abandoned those views and engaged in a remarkable public mea culpa over his calculated segregationist politics which he shared with his generation of Southern republicans.

Poff said, "I can only say that segregation is wrong yesterday, segregation was never right. But is is one of the most lamentable frailties of mankind that when one's wrong is most grievous, his self-justification is most passionate, perhaps in the pitiful hope that the fervor of his self-defense will some how prove him right. But this doesn't make it so. And he doesn't foll himself."

Last week, I had the occasion to formally revisit some of my worst professional misconduct dating back to 2003-7 with precisely the same feeling of self-loathing. No one, can punish you for a moral or ethical wrong more than you yourself can, if you have the capacity to be honest. Richard Poff went on to redeem his error, I fervently hope to retain at least the hope that I might someday be able to. We'll see.

Bad Lawyer is Traveling Tuesday and Wednesday this Week

2011-06-28T04:58:00.002-04:00

The Bad Lawyer blawg will publish irregularly through the 4th of July holiday. A brief summer hiatus to focus on professional obligations and the annual family picnic for the 4th.

Please rejoin me for regulary posting July 5.

Blagojevich Guilty on Multiple Counts of Wire Fraud

2011-06-27T15:14:00.000-04:00

A Chicago jury has found former Governor Rod Blagojevich guilty on multiple counts of wire fraud, attempted bribery, and extortion in connection with trying to sell the former senate seat of President Barack Obama.

Verdicts in the Rod Blagojevich Re-Trial Have Been Reached

2011-06-27T12:30:00.001-04:00

A Chicago federal jury has informed the trial judge that it reached a verdict on 18 of 20 counts. Expect the verdicts to be announced within the hour.

Violent Video Games for Kids, "That's OK"--SCOTUS

2011-06-27T10:57:00.000-04:00

The Supreme Court of the United States has struck California's ban on violent video games for persons under the age of 18 years. 7-2 vote, wasn't even close.

Did Prosser Commit a Tort?

2011-06-27T09:17:00.001-04:00

Did Justice David Prosser (pic, left) of the Wisconsin Supreme Court assault and choke his female colleague, Justice Ann Walsh Bradley (pic, right)? The Blawgosphere and some mainstream media are asking precisely this question this morning. Prosser, a close political ally of controversial Governor, Scott Walker, survived a squeaker of a reelection bid in April.

Justice Prosser previously acknowledged calling his ideological opposite Chief Justice Shirley Abrahamson a "total bitch." According to local reports Justice Prosser threatened to "totally destroy her;" and, later acknowledging that he may have "overreacted."

"Mom's Just a Little Buzzed"

2011-06-27T08:36:00.002-04:00

Cierra Baughcum

WBSTV Channel 2 reports that a Clayton County, Georgia mother, Cierra Baughcum was nearly 5 times the legal limit for blood alcohol when she drove herself and her two young unrestrained children into a mobile home picnic area wiping out her Camaro and two picnic tables before coming to a stop at a chain link fence near a busy highway.

Here's a link to Channel 2's story with video. Are you terrified for these kids? I am.

10,839 persons died from drunken driving in the US in 2009 according to government statistics.

Judge Sentencing Man on 11th DUI: You are a Highway Terrorist

2011-06-27T05:28:00.001-04:00

Allegheny Judge David R. Cashman (small pic, right) has been known to go over the top in his colloquies with defendants when handing down sentences or taking pleas. But he seems to have nailed the situation recently while accepting a guilty plea from Richard Caporal on his 11th DUI. This is the local news account from WPIX.com:

A Pittsburgh man pleaded guilty to his 1[5]th driving under the influence charge on Monday.

Channel 11's Alan Jennings was in court when a judge called him a "highway terrorist."

Judge David Cashman asked Richard Caporal, 58, why he was pleading guilty. Caporal responded, "Because I am, your honor."

Police records show that Caporal's 11th DUI charge came during a snowstorm in February 2010. Police reports stated that Caporal crashed into a parked car at 2 a.m. on Mount Joseph Street.

Neighbors said they heard the crash and watched as Caporal fell down repeatedly. One neighbor told police that, "It was like watching the Three Stooges." Police said Caporal's blood alcohol level at the time of the crash was 0.25 percent.

During the court hearing, the judge told Caporal that, "You are like a highway terrorist, driving drunk for decades. Well, you won't kill anyone on my watch."

Cashman reviewed Caporal's arrest record, noting that his driver's license has been suspended since 1977.Caporal is not eligible to get his license back until 2043, when he'll be 93 years old.

[H]e [received 15 years.]

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Get him off the road. He's a terrorist and a menace to other drivers, pedestrians, and other living things. Keep him off the road. Caporal is a sick man. Good job, Judge Cashman.

The First Innocent Man

2011-06-27T05:21:00.005-04:00

The man in the mugshot is Randall Dale Adams, the subject of Eroll Morris' great documentary The Thin Blue Line. Randall Dale Adams was one of the first Texas death row inmates to be exonerated. Adams' exoneration for killing a police officer during a traffic stop predated the innocence project and the advent of DNA technology. It was based on the astonishing efforts of a handful of people including Morris who questioned the illogical sequence of facts and proffered testimony in the case. In exonerating Adams, Morris et al. demonstrated that highly motivated law enforcement will massage the evidence and testimony to put an innocent man on death row when the underlying crime involves a cop killing. Big surprise, right? The following is an excerpt from the Dallas Observer's obituary notice:

"It's an Everyman's story. It's the story of someone slipping through the cracks -- if you like, a nonfiction Twilight Zone episode." That was filmmaker Errol Morris talking, in 1988, about his documentary The Thin Blue Line -- otherwise known as the film that proved Randall Dale Adams did not kill Dallas Police officer Robert Wood in 1976, despite his having been convicted of the crime and sentenced to die in '77.

Errol Morris did not come to Dallas in 1985 to spring Adams; he didn't even know who he was. The filmmaker had arrived instead to profile Dr. James Grigson, the local psychiatrist known as "Dr. Death," because his expert testimony on behalf of the District Attorney's Office all but guaranteed a death sentence. That's what Adams received, thanks to Grigson, who told the jury he'd kill again if ever released. But Randall told the director: "I'm innocent." Well, of course he was; who on Death Row isn't? But Morris looked into it: "History, properly considered, is a mystery," the director told me in '04 when speaking about The Thin Blue Line. And he discovered: Adams wasn't lying. This is what we wrote in 2007 in summation:

The documentary alleged that [Dallas County District Attorney Henry] Wade's first assistant, Doug Mulder, withheld exculpatory evidence from the defense. Adams' attorney maintained Mulder manipulated key witnesses. Mulder denied that and said he'd simply "forgotten" to turn over a witness statement pointing to another man. The Texas Court of Criminal Appeals ordered Dallas County to grant a new trial, and then-District Attorney John Vance dropped the charges.

The real cop-killer, David Harris, told the Dallas Times Herald and District Court Judge Larry Baraka shortly after the film's release that he'd lied about Adams's involvement in the shooting. It took a while for D.A. John Vance to come around, but, finally, Adams was released in the spring of '89. Two years later Adams wrote a book about his case in 1991, but finally left Texas a few years later to lead "a quiet life in Columbus, Ohio." And that is where he died in October, at the age of 61. Few knew of his quiet farewell till an obit appeared in yesterday's paper, buried in the Metro section; the Associated Press picks up the tale today.

Adams wasn't the first whose wrongful conviction in Dallas County became national news; before Randall Dale Adams, Errol Morris and The Thin Blue Line, there was Lenell Jeter, Morley Safer and 60 Minutes. And God know he wouldn't be the last, as the parade of exonerees from the Dallas County courthouse reminds every few months. But as Adams's longtime attorney -- Randy Schaffer of Houston, who took the case pro bono in '82 -- tells the AP: "Within the context of the modern criminal justice system as we know it, he was the first innocent man, the first death row inmate exonerated based on innocence, even though in the court's opinion he was exonerated on the state's use of false testimony."
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I vividly remember watching Morris' documentary and being awe struck by the horror story at the heart of Morris' film. It forever changed my view of the death penalty.

For proof that innocent men die in Texas (and elsewhere) look no further than the Bad Lawyer posts on the Cameron Todd Willingham case. Willingham was murdered by Texas. Governor Rick Perry, an assessory to the official killing, will be haunted by the spectre of the execution of Willingham, an Op-Ed at the New York Times claimed over the weekend. Good.

Cy-Pres: Make 'em Pay What They Said They'd Pay

2011-06-24T08:18:00.002-04:00

Dr. Edw. Michaelson at University Hospital Cleveland, Ohio

Cy-Pres is an equity doctrine (which I originally wrote about in November 2009) adopted and advanced by certain innovative plaintiffs' Class Action attorneys to benefit charities and make corporate defendants pay what they promised to pay when they settled claims for civil wrongs.

Yesterday, Dworken and Bernstein in Cleveland led by my long time friend, Patrick Perotti distributed millions from the settlement of a Wells Fargo and CITIFinancial Class Action cases. This is one of the good news stories and one of the really excellent examples attorneys "walking the walk" thereby accomplishing genuine social good.

Here's an excerpt from the Cleveland.com report:

Leaders of 13 local charities and seven more from throughout Ohio learned Thursday that they'll split more than $2 million in unclaimed funds from settlements in two class-action lawsuits.

"Oh my God, who knew?" exulted Agaytha Corbin, who received a check for $78,000 for her Dayton-based economic development group.

Corbin said that when she got the call inviting her to Thursday's reception for the announcement, she initially thought it was a prank.

The windfall came from settlements that the Painesville-based Dworken & Bernstein law firm secured earlier this year in cases involving Wells Fargo and CitiFinancial. Invoking a legal doctrine known as "cy pres," the law firm insisted that any funds unclaimed in the settlements be distributed to charities, rather than returned to the defendants.

[L]awyers do[nated . . . ] more than $2.1 million. Twelve local charities were selected by Dworken & Bernstein; the defendants' lawyers chose the other eight, including Neighborhood Housing Services of Greater Cleveland.

Cindy Norwood, executive director of The Arc of Greater Cleveland, cried softly after learning on Wednesday from a reporter that her organization would be given nearly $75,000.

Only three weeks ago, she had been hit with the devastating news that her agency, which serves people with disabilities, had lost out on $72,000 it had sought in United Way grants. "I've been working so hard to replace that money," Norwood said. "To hear we're going to get almost the exact amount -- oh my God, I can breathe."

The gift amounts to a big chunk of The Arc's $300,000 annual budget.

For the Antioch Community Development Corp., which provides family outreach, free meals and HIV awareness and education, the timing couldn't have been better: State funding for its marriage enrichment program runs out June 30. "The funds (more than $52,000) will help us to continue," said the agency's executive director, Kelvin Berry.

Patrick Perotti

The money distributed Thursday came from two Dworken & Bernstein class-action suits claiming mortgage liens on homes of borrowers were not released after the loans were paid in full. The settlement with CitiFinancial provided four charities with about $74,000 each: Project Love, The Arc, E Prep School and Society for Rehabilitation.
The Wells Fargo settlement generated varying amounts for: Malachi House, Trinity Episcopal Cathedral, University Hospitals, the Gathering Place, Cornerstone of Hope, Antioch Community Development, Ohio College of Podiatric Medicine and Gordon Square Arts District.

Dworken & Bernstein lawyers have been invoking the cy pres doctrine since 2002 and have won more than $22 million for charities. Nonprofit groups can apply for future distributions by going online to ohiolawyersgiveback.org Lawyer Patrick Perotti, a vocal advocate for broader use of the doctrine, said that if more law firms specified that unclaimed funds should go to charity, as much as $60 million could be raised annually for Ohio nonprofits doing vital work.
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Way too often this blawg has been about Bad Lawyers and Judges, Prosecutors, and crooks it is relief to bring you news of lawyers doing actual social good.

I understand that Cy-Pres is controversial, but as Perotti, one of the founders of LawyersGiveBack.org, says, Cy-Pres guarantees that when a corporate defendant agrees to settle a lawsuit the unclaimed class funds are not refunded to the wrong doer. The defendant pays what they agreed to pay and our communities and charities benefit.

When Judge Gaines Throws the Book at You, Watch Out!

2011-06-24T07:47:00.001-04:00

Atlanta Municipal Judge Crystal Gaines (pic) apparently thinks she's a federal judge the way she hands out the time. Municipal court judges are limited by Georgia charter to handing out no more than 6 month sentences in their courts. This, um, limitation has not inhibited Judge Gaines who keeps her municipal court defendants on paper for YEARS. Here's Christian Booth's story from the AJC.com:

If you've received a sentence of more than six months from an Atlanta Municipal Court judge, you might want to continue reading.

Attorney Jackie Patterson said his client, Anthony Brooks, was sentenced to 48 months probation last fall by Chief Municipal Court Judge Crystal Gaines on two counts of marijuana possession and two counts of driving with a suspended license. The sentence -- 12 months per count -- exceeds the limit mandated in the city's charter, said Patterson, adding his client is not the only one affected.

"This is happening all the time," said the attorney.

According to Section 4-102, Article 5, punishment for violations may not exceed a fine of $1,000 "or imprisonment for six months." Probation and imprisonment are interchangeable[.]
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There is some debate according to the article about the jurisdiction of the court in sentencing, but 48 months, is probably way beyond even arguable power in the Atlanta city municipal court.

Took a Village to Raise Him, Now He's a Lawyer

2011-06-24T06:15:00.000-04:00

OK, here's my feel-good story for the month courtesy of the Fresno Bee. Tyrone Wilson was raised by wolves, well almost--20 foster families and now he's a lawyer. Here's an excerpt from a lovely story at the fb:

Despite growing up in 20 foster homes and being warned that he would end up in prison one day, Tyrone Wilson, 28, of Tulare was sworn in last week as a member of the State Bar of California.

He's a lawyer now.

"He could have become bitter -- he became better," said Tulare County Superior Court Judge Valeriano Saucedo, who administered the oath as Wilson's former foster parents and his biological mother watched with pride.

"Miracles can happen," Wilson said, choking up. "I was told all my life I was a bad kid -- 'You're going to be dead or in prison.'"

Last month, he passed the bar exam after a few tries. He shouted for joy when he got the news, causing neighbors to wonder what was going on.

Local sports fans might recognize Wilson's name.

Ten years ago, he was a football player at Tulare Western High School, played at Fresno City College for two years and then at the University of Buffalo in New York, where he graduated with a degree in African-American studies. He graduated from the Buffalo Law School in 2009.

It wasn't an easy road.

His mother was a drug addict. When he was 6, Child Protective Services removed him and his siblings from her home, and he bounced between foster homes. He engaged in petty crime and got kicked out of school for fighting.

But some foster parents fought for him, he said.

Cathy Frasquillo of Tulare was one. She yelled at a principal behind closed doors until he agreed to let Tyrone back in school, Wilson told the crowd in Saucedo's courtroom.

"Don't prove me wrong!" she sternly told Wilson. But she died, and he started backsliding. Then Jess Washington, an African-American pig farmer in Pixley, became his first real father figure, making him do chores like everyone else in the family. "I'm so indebted to the guy," Wilson said. "He gave me life lessons. He was a good, strong Christian man who loved me." Washington died March 5.
Later, firefighter Carlton Jones and Tia Coleman of Tulare let Wilson live with them. [. . . ] Two years ago, Saucedo heard Wilson speak to a group of young people who were living in foster homes or caught up in the court system. Saucedo liked what he heard and ended up tutoring Wilson for the bar exam.

"It took a village to raise me," Wilson said[.]
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Very cool.

Now stay out of trouble!

Fla Death Penalty is Unconstitutional, Fla Taxpayers--Tell Us Again Why Were Paying for this Case Anthony Carnival?

2011-06-23T11:09:00.000-04:00

At least that's the question Florida taxpayers should be screaming at prosecutors in the wake of the 94-page ruling by U.S. District Judge Jose Martinez striking down Florida's death penalty. Judge Martinez repeatedly cited a 2002 U.S. Supreme Court decision as a basis for his finding that Florida's law is fatally flawed.

So Florida prosecutors are proceeding with a media circus in nearby Orlando in a declared effort to kill that idiot-child, Casey Anthony. At the cost of how many millions? And does Florida have so much revenue that they can feed and house all the abused and neglected children?

Uh, Oh, Here Comes Judge Gummo

2011-06-23T08:35:00.001-04:00

Judge Gummo (pic) is a Huntingdon County, Pennsylvania District judge who needs to stay away form the bottle. With a hat tip to the ABAJournal, here's the local media report from WHTM abc27:

" A district judge has pleaded guilty to harassing a woman at a Cumberland County hotel.

Douglas Gummo, 42, of Petersburg, was fined $438 for the April 1 incident at the Radisson Penn Harris Hotel in East Pennsboro Township.

Police said Gummo was drunk and wearing only a bed sheet when he repeatedly tried to enter the room of a female guest, who is also a district judge. Gummo is a district judge in Huntingdon County. He and the woman were at the hotel for a conference. Prosecutors dropped charges of public drunkenness and disorderly conduct in exchange for the guilty plea."
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No one is immune from the chaos, confusion, and humiliation of alcoholism. As we've seen again and again, alcohol is cunning, baffling, and powerful. Good luck to Judge Gummo, he's young enough that he can make this ridiculous episode a powerful component in his personal story. Of course only Judge Gummo can figure out for himself whether he needs help. But here's a clue: drink = trouble? You might want to take a long hard look at yourself.