Thursday, November 5, 2009

Prior Bad Acts--The LA Doctor/Cyclist Road Rage Case


Charles Pelkey, a Wyoming lawyer and cycling advocate had a terrific "explainer" at VeloNews today, relating to the question of admission of evidence of "Prior Bad Acts" in the criminal trial of the LA emergency room physician Dr. Christopher Thomas Thompson convicted Monday of multiple counts of felony assault.  As you will recall Dr. Thompson pulled his luxury sedan in front of two road cyclists and stopped propelling one cyclist into the rear window of his car nearly severing the cyclist's nose and causing various serious injuries to both riders.

Pelkey's essay dealt with the introduction of evidence at trial of numerous other incidents involving this doctor and bicyclists.  The question is how does this evidence come in against a criminal defendant when as a general principle a person may not be convicted of crime based on evidence of prior similar acts.  The same principle applies generally to civil lawsuits.  Read Pelkey's explanation, see http://www.velonews.com/article/99827/the-explainer---doctor-behaving-badly

Further Evidence that it is Dahlia Lithwick World and the Rest of Us are Just Sniffing Our Own Briefs

http://www.slate.com/id/2234604/pagenum/all/#p2

Dahlia on the Supreme Court Oral Argument in Pottawattamie County v. McGhee see also:  http://www.supremecourtus.gov/oral_arguments/argument_transcripts/08-1065.pdf

Judge Not, Less You Be Judged: the Cops can fill you with Lead!

Bad Lawyer went to law school with a bunch of smart boys and girls.  I noticed that the really smart gurrrrllll, who became a US District Judge was bawled out by the Sixth Circuit Court of Appeals, yesterday, for "exactly the sort of theoretical speculation that the courts are prohibited from engaging in." Judge Kate O'Malley wrote a 54 page opinion refusing to throw out the civil lawsuit filed by Brandon's relatives.  Judge O'Malley "speculated" that jurors just might think that the cops were slightly excessive when they filled poor 15 year old Brandon McCloud with lead.  See, Dorothy Chappel v. City of Cleveland, CA6 08-4456  see: http://www.ca6.uscourts.gov/internet/index.htm.


The facts of this case are just...well, reasonable men and women, "speculate" for yourself.

Brandon was in his bedroom, the cops were in the home searching for evidence relating to the robbery of a pizza store.  Brandon was hiding in his room with a matress set up to block the door.  He had a knife in his hand.  The cops had 9 millimeters.  Brandon was on one side of the mattress, the cops the other.  Brandon did not lunge or otherwise attack Cleveland's Boys in Blue, but Brandon also didn't drop the knife quickly enough according to the cops.  Cleveland's finest pumped 10 rounds into the former-fifteen year old.  

The US constitution has this not very important provision, well not nearly as important as the right to bear arms, but well it's the Seventh Amendment it goes something like this :   In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise re-examined in any Court of the United States, than according to the rules of the common law.  When Judge O'Malley was "engaged in impermissible speculation" she was making a decision in a FRCP Rule 12(b)(6) proceeding that implicated this little known constitutional right.

Bad Judge!

Single, Celibate Men All Over Ohio Meet to Save Your Marriage



It's reassuring that these men have time, after decades of molesting your children, covering up their crimes, bribing your public officials and making sure the right legislators were elected in order to keep restrictive statute of limitations in place--to attend to the status of your marriage.  A pal sent this link along.   http://blog.cleveland.com/metro/2009/11/ohio_catholic_clergy_to_meet_i.html

Wednesday, November 4, 2009

The Prosecutor has an absolute right to frame you!

The Supremes hear an oral argument, today, that addresses the unfettered right of  prosecutors to frame suspects in criminal cases--or, as the prosecutors frame the issue, "there is no-freestanding right not to be framed."

Council Bluffs, Iowa County prosecutor David Richter participated in the framing of two black men who were sentenced to life without parole for the shotgun murder of a white man.  The suspects Terry Harrington and Curtis McGhee were innocent, weren't there, didn't do it--someone else did, probably a white guy.  But Richter was running for office and needed to convict someone of the crime and these two recent high school grads from across state lines fit nicely.  So Richter and the cops coached a 16 year old (criminal) on the facts to act as their star witness and an all white jury convicted Harrington and McGhee.  After 25 years in prison Harrington and McGhee were exonerated and released from Prison, now former Bush-administration Solicitor General, Paul Clement, is trying to sue Richter, et al.

But, prosecutors are immune from lawsuit for framing innocent people. "Huh?!  Are you freaking kidding me, Bad Lawyer."  I kid you not.

For more details and analysis I yield the floor to NPR's  Nina Totenberg  http://www.npr.org/templates/story/story.php?storyId=120069519

Tuesday, November 3, 2009

The Catholic Church Games You!


The guy to the right  is Brooklyn Bishop Nicholas DiMarzio.

Bishop DiMarzio made a robocall (that's him on the phone now!)--on behalf of the reelection of that great assemblyman and Brooklyn Democratic Boss, Vito J. Lopez.  Lopez earned the endorsement of our dear representative of Christ on earth by:  (a pulling a little girl from a burning tenement?; (b sponsoring legislation to feed and clothe the poor during this recession?; (c protesting the opening of an abortion clinic in our district?;  or,(d defeating legislation that would have expanded the statute of limitations to allow victims of rape and sexual molestation to sue the perpetrators and the institutions that protected and covered-up the crimes?

If you guessed (d and you voted for Vito--that'll be 10 points plus all your sins are forgiven.  Don't you feel cleansed?

The LA Times Update on Doctor Road Rage Assault on Cyclists

http://www.latimes.com/news/local/la-me-cyclist3-2009nov03,0,761131.story  With pic of Dr. Chrostopher Thomas Thompson taken into custody to await sentencing.

Monday, November 2, 2009

Dr. Thompson Verdict

http://www.velonews.com/article/99800/dr-thompson-is-found-guilty-of-all-counts-in-la-road-rage

Guilty on all counts!

You Must Go Bust

A friend sent me an item from the Toledo Blade about a Toledo-area lawyer who filed for personal bankruptcy protection.  The Toledo Blade reports "Attorney goes bust after losing suit."

Get this, the suit was 18 years ago.  The Judge in the case--long dead.  So why was this bankruptcy of interest to the Blade?

It turns out that the "suit" lost 18 years earlier (by this bankrupt attorney), was a libel action against the Blade, and the Blade has a long memory.

Now granted this lawyer appears not to have been the sharpest knife in the drawer.  In the lawsuit that our bankrupt lawyer lost 18 years ago, the County Judge said that Mr George C. Rogers (the attorney who went bust) and his co-counsel were "lazy, shabby, [and] inexcusably negligent."  the Judge characterized their briefs and the research that they did as "untrustworthy."  Ouch!

Sanctions were imposed against Mr. Rogers and his co-counsel in the amount of $18,981 which were paid by the lawyers in 2000.


It is not unreasonable to assume that the Blade in publishing this article was doing the victory lap around the financial bones of Mr.George C. Rogers.  It goes without saying that the article by reporter Erica Blake was entirely misleading; losing the lawsuit to the Toledo Blade does not appear to have had any relationship to the bankruptcy, but then again who knows.  Let me add and I hope this BLAWG-post doesn't appear to be a gratuitous attack upon the Toledo Blade.  The Blade is an awesome newspaper, it won a Pulitizer prize a number of years ago for it's coverage of the Catholic Clergy Scandals which repeatedly quoted me (I am not a Toledo attorney), and I am not knocking the paper.  I am empathizing with the brother, bad lawyer--Mr. Rogers.

You see, I do know that lawyers lose lawsuits.  Sometimes, lawyers are so bad, that they lose the lawsuit in spectacular fashion--through their own stupidity, or incompetence.  More often, the loss is the outcome of the evidence and the law as perceived by the jury or the judge.  Just the OUTCOME.

When I was a young litigator I thought I was in charge of the OUTCOME.  This mindset made me a terrible attorney.  I distorted everything I presented in court in a misguided effort to zealously represent my client, in otherwords to get money for my client and me.  This approach made me unreliable and untrustworthy.  As a consequence I was ineffective, to a degree where I couldn't trust my own judgments let alone anything that came out of my mouth. Thank God!, a judge had mercy on me.   Judge H. told me I was full of shit and that I needed to make a big change or get out. I changed.  The overall outcomes for clients improved dramatically.  Maybe the outcomes improved because with better judgment I took better cases, but I know I started to do just my job--simple advocacy:  present the facts unvarnished and let the outcomes be determined by the judges and juries.

Lawyers are messengers, not the message--even good lawyer forget this fact at their client's peril.  The Lawyer's job is to create the scenario for and supply the evidence for just and appropriate outcomes.  Then get out of the way.

True, there are lousy  and unjust OUTCOMES attributable (in the rare circumstance) to crooked or corrupt judges, to incompetent judges, or (most instances to) judges who make mistakes.  In some cases the lawyer dared to try to extend the reach of the remedies and mercies of the law to clients who traditionally get no remedies.   This latter approach--daring to reach for remedies is the Bad Lawyer Way.  It is the path to sanctions, condemnation and ridicule, and the path to"going bust."