Disciplinary Suspension of Superstar Former Federal Prosecutor?

The BLT (Blog of the Legal Times) reports on the pending disciplinary suspension for a "Superstar" former assistant U.S. attorney for the District of Columbia arising out of multiple acts of prosecutorial misconduct dating back some 14 years.  According this guy's current "Big Law" firm biography.  G. Paul Howes (you can always tell Big Firm guys, they do this "first intial"-thing) was an Enron litigation lawyer recovering huge sums of money for defrauded stockholders, a former ABC news correspondent, and former counsel to then FBI director William Webster. 

Here's the BLT story:

"In what marks the latest twist in the long-running disciplinary proceeding against former federal prosecutor G. Paul Howes (pic), the nine-member Board of Professional Responsibility issued tonight a split recommendation on what sanctions Howes should receive for his past alleged misconduct.  In the board’s report and recommendation to the D.C. Court of Appeals, four members recommended disbarment for the former assistant U.S. attorney for the District of Columbia, three recommended a three-year suspension of his license, and two recommended a one-year suspension.

Because none of the recommendations was in the majority, the final decision on Howes’ sanction will be up to the D.C. Court of Appeals. Given that the most miniumum recommended punishment was a one-year suspension, an ethics lawyer said the appeals court could suspend Howes’ license before making a final decision.

Howes, who served as a federal prosecutor in Washington from 1984 until 1995, handled some of the District’s most high-profile drug, homicide, and gang cases in D.C.’s federal and local courts, including the Card/Moore and Newton Street Crew cases. The investigations into his alleged misconduct has spanned more than a decade and involved two disciplinary agencies. In 1998, the Justice Department’s Office of Professional Responsibility issued a report that determined Howes authorized more than $140,000 in payments to 132 witnesses, including individuals who were not entitled to receive them. Howes was also accused of intentionally failing to disclose the use and misuse of the vouchers to defense counsel.

Howes’ alleged misconduct resulted in reduced prison sentences for at least nine defendants, many of whom were serving life sentences.  In a 2007 disciplinary hearing before a committee of the Board of Professional Responsibility, Howes admitted to six ethical violations, including false statement of material fact to a tribunal, failing to timely disclose evidence that tended to negate the guilt of a defendant, and engaging in conduct that interfered with the administration of justice.

On two other charges--prohibited inducement to a witness and committing a criminal act that reflects adversely on a lawyer's honesty--Howes argued that he did no such thing. The hearing committee found in August that the evidence against Howes did not support the inducement charge but that his actions did amount to false statements, which violates federal law.

The hearing committee ultimately split on its recommendation for sanctions with one arguing for disbarment, another arguing for a two-year suspension, and a third recusing.

Howes, who now works for Robbins Geller Rudman & Dowd in San Diego, Calif., has argued that despite his admitted misconduct, there were mitigating factors that ought to be considered. The OPR report found that there was no evidence Howes personally benefited from the use of vouchers, that no witness changed his or her testimony as a result of the vouchers, and that Howes was “undoubtedly” using vouchers to advance the interest of the prosecution.

Howes has also argued that because of delays in the disciplinary proceedings against him, and because of his 'ethical and honest practice for the past 14 years,' he deserves leniency.

According to the board’s 87-page report and recommendation to the D.C. Court of Appeals, Howes conceded that 'under ordinary circumstances and taking into consideration all the facts and circumstances and all the violations stipulated to, ' a three- to six-month suspension ' may be appropriate.' He argued that once the mitigating factors were taken into consideration he should receive a 30-day suspension without having to show fitness upon reinstatement.   That argument found little traction among the board’s members, but even then they could not agree on what sanction he should actually receive.

The report, which is signed by its chair Charles Willoughby, inspector general for the District of Columbia, said, 'The board unanimously agrees with the Hearing Committee’s findings of fact and conclusions of law and we have adopted them with some exceptions. . . . There is no agreement by the Board regarding the appropriate sanction.'
Deborah Jeffrey, a Zuckerman Spaeder partner; Ernestine Coghill-Howard of the Substance Abuse & Mental Health Services Administration; and Russell Smith III of the Office of the U.S.Trade Representative, joined a statement in which they recommended disbarment for Howes to 'express the condemnation that [Howes’] conduct merits and to deter others from similar misconduct.'

In a separate statement, Theodore Frank, an Arnold & Porter senior counsel, also recommended disbarment.

Ray Bolze, a Howrey partner and the board’s vice chair, drafted a statement that was joined by Willoughby and Jean Knapp a non-lawyer member of the board. He recommended a three-year suspension without having to show fitness upon reinstatement because, 'In light of the unchallenged array of testaments by fellow attorneys, and two judges as to [Howes’] unblemished law practice since leaving the USAO over ten years ago, we find that Bar Counsel has failed to establish by clear and convincing evidence that there is a serious doubt regarding [Howes’] fitness to practice after the expiration of the suspension.'

James Mercurio, a Washington-based solo practitioner, and Carmen Cintron, an administrative law judge at the Federal Energy Regulatory Commission, recommended a one-year suspension because, 'No one has suggested that the funds expended through the vouchers [Howes] signed were not prudently and efficiently directed toward the achievement of the highly important public goals that [Howes] was pursuing during the Card/Moore and Newton Street Crew cases' and that Howes’ conduct did not warrant a 'career ending sanction.'

D.C. bar counsel Wallace 'Gene' Shipp Jr. declined to comment.

In a statement, Howes’ attorney Paul Knight of Nossaman said, 'I intend to read this Report and Recommendation carefully and make a decision within the next 20 days as to the next appropriate step for Mr. Howes.'"
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I have recorded on this Blawg many stories of bad lawyer, especially my story.   I remain amazed that disciplinary cases can drip, drip, drip like "chinese water torture."  Does that mean Mr. Howes, who apparently committed unprosecuted federal felonies of false statements, should not be disciplined?  Probabaly not, he or his attorney may have had a hand in the many delays.  But it is frightening how many years after an event--after numerous physcial relocations and career moves you can be asked to account for your alleged unethical dealing with long closed legal matters.

Innocent Houston Inmate Treated Disgracefully and Dishonorably by Judge and Law Enforcement

The Houston Chronicle documents the disgraceful and dishonorable conduct of the Texax Judge and Court in their handling of the exonerated Texas inmate who worngfully spent 27 years behind bars for a crime he did not commit and spent one more 24 hours by judicial fiat.  Be outraged, this is Brian Rogers' story:

A Houston man expected to be freed Thursday after being imprisoned 27 years for a rape he did not commit had to wait at least one more day after shouting from a holding cell and threatening bailiffs and jailers. Michael Anthony Green reacted 'emotionally' to the reality of his release, said Bob Wicoff, his attorney. 'He was threatening everybody and anybody, but nobody,' Wicoff said. Wicoff said he did not hear Green, 45, threaten anyone specifically.

Green blew up after he was put in handcuffs and leg irons for the walk to court, Wicoff said. He also said the jailer who handcuffed Green jerked his arm roughly and put the cuffs on too tight.

'There was no reason to put leg irons on a guy who is getting out,' Wicoff said. 'It's totally ridiculous[.]
In a jailhouse interview with KHOU Thursday night, Green blamed the outburst on his anger at a guard he said was hurting his wrists and forcing him to walk faster than the shackles would allow. Asked what it was like to have spent 27 years in prison for something he did not do, he said, 'Think of the most precious thing in your world, and then imagine having it taken away.'

Despite the events earlier in the day, the reporter described Green as almost jovial. Green said, 'I got over being angry a long time ago because, at some point, you realize it's just not worth it.'

Green's family members, who were in court, said he should have been released regardless of his behavior.

'This is ridiculous,'  said Green's aunt, Brenda Murray. 'The judge and everybody else should be ashamed of themselves. This is bad.'

[H]e was visited by his defense attorney from 1983, Bill Harmon. Harmon, now a Harris County court-at-law judge, said it was a 'mystery' why Green was not released.  'I can't tell you why he's not out today,' he said Thursday. 'He should have been released today because he's innocent.'

Harmon said Green was offered a five-year prison sentence for the 1983 aggravated rape of a woman who was abducted by four men in the Greenspoint area. He was convicted on faulty eyewitness identification by the victim and sentenced to 75 years in prison. Wicoff has blamed Green's conviction on shoddy police work, saying the then-18-year-old was identified by the victim in a photo array and a lineup after seeing him in the back of a police car and initially saying he was not involved.

After DNA from the victim's jeans was tested last year, prosecutors identified all four men suspected in the crime, including the three believed to have committed the sexual assault. Three of the men have gone to prison for other crimes and two still are behind bars.
[ . . . ]

After the case was reset for today, Wicoff said his client was angry and needed another day to compose himself before having bond set while the Texas Court of Criminal Appeals rules on his actual innocence.

'That wasn't really the issue, how he would act in the courtroom,' Wicoff said. 'The issue is whether he is emotionally stable enough to get out. Or did he just need a little bit more time.' Alan Bernstein, a spokesman for the Harris County Sheriff's Office, said Green threatened bailiffs and jailers on the way to his cell and in the holdover cell, which is adjacent to the courtroom. Bernstein said no charges were filed for the outbursts. He said Green was shackled hand and foot because he was brought back to Harris County from prison in Huntsville as a convicted violent offender. When processed by jailers, Green was put in administrative segregation because of the crime for which he was convicted. He also was put in a cell by himself. As part of administrative segregation protocols, Bernstein said, Green was handcuffed and locked in leg irons to go to court.

Green was expected to be granted a personal recognizance bond by visiting state District Judge Mike Wilkinson Thursday. He was not brought into the courtroom, but his shouting could be heard from the court's holdover cell.

'This has been a gross perversion of justice, and he's a smart guy and he knows it,' Wicoff said. [ . . . ]

They need to let him out,'  Taylor said. 'I can feel his pain. I know he's upset. He just wants to be free.'
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Here's the thing, this poor human being has been institutionalized for 27 years with the worst of the worst.  Do you think he's equipped to stay out of trouble?  Do you think Texas authorities will ever let him alone? 

He needs to leave Texas, with his family and begin his life somewhere where he will not be under the Texas microscope.  He jaywalks, Texas will have him on death row.

Hypocritical Family Value Republicans

The Atlanta Journal-Constitution reports on the Republican candidate for attorney general of Georgia.  Amazingly, this family values conservative was cheating on his wife!  Just imagine, a hypocritical, lying, fraud wanting to be the chief law enforcement official of the State of Georgia.  What a surprise, it's sort of like finding gambling at Ricks' Casablanca Cafe:

"State Sen. Preston Smith (mug shot), a Republican candidate for attorney general, had an extramarital affair with a [young] woman whom he hired to work in his Senate office in 2003 and 2004, according to transcripts of Smith’s testimony in his 2009 divorce. The woman, who also worked on his Senate election campaigns, no longer lives in Georgia.

Copies of depositions from the divorce, in which Smith discussed his infidelity, marital acrimony and the couple’s financial problems, have been sent to media outlets in recent days after Smith came in second in the race for Republican attorney general in the July 20 primary. Former Cobb County Commission Chairman Sam Olens came in first. The runoff election is set for Aug. 10.

Smith, 37, and his campaign did not return repeated calls for comment. Late Wednesday night, the campaign sent an e-mail to The Atlanta Journal-Constitution stating, 'my failed marriage was a complicated and incredibly difficult personal situation that I still live with every day. Without a doubt, I fell short in my personal life by getting a divorce, and people have the right to make a moral judgment on that if they chose.' He went on to say he still felt he was the best man to be Georgia's next attorney general.

The woman whom Smith said he had romantic relations with during his marriage and separation, did not return calls for comment. She now lives in Virginia and is married. Another woman with whom Smith said he was also involved during his separation could not be reached. The AJC has decided not to name the women, as they are not public figures.

Atlanta attorney Charles Medlin, who represented Michelle Smith in the divorce, said his client did not want to discuss the divorce, but Medlin talked about the case and depositions taken before it was settled.

Medlin said his client 'was shocked and hurt' when she first discovered the infidelity in 2004, but tried to work on the relationship. Smith’s extramarital relations continued during the separation, according to Smith’s own disposition. Part of that time, he continued to live in the Rome home of his wife and four children.

Smith, an attorney and former head of the Senate Judiciary committee, has run as a family-values, pro-Christian candidate since his first successful run for state senator in 2002. For years, Smith served on the board and the faculty of Summit Ministries, a Colorado-based ministry that supports and promotes Christian outreach programs in schools across the country. The group produces reading material for students including books on the importance of Christian morals. This year, Smith is stressing his conservative political record, but he makes no reference to his family or Christian values in his literature.

The state Ethics in Government Act does not explicitly prohibit sexual contact between superiors and employees. In a revision of the act earlier this year, language was added to prohibit 'sexual harassment,' including when conduct is made 'explicitly or implicitly a term or condition of an individual’s employment.' There is no evidence Smith made his staffer’s employment contingent upon their relationship. The state ethics law was changed this year partly in response to a series of scandals at the state house including allegations of infidelity on the part of elected officials. House Speaker Glenn Richardson resigned last fall after his ex-wife told the media he had a long-standing affair with a lobbyist.

State Senate rules do not ban supervisors from dating employees, but the standard of conduct requires senators to conduct all relationships 'in a courteous, professional, and discreet manner.'

The woman with whom Smith was involved was a Berry College student active in Republican politics. She worked on his campaigns and he hired her as a legislative aide, paying her $200 a month in 2003 and 2004, according to legislative fiscal records. In divorce depositions, Smith was questioned about his relations with two women, and acknowledged the relationships were romantic. At one point, Medlin asked about the staffer.

Medlin asked, 'Was she your personal secretary?'

Smith replied, 'I don’t know whoever gave her a title. She was an assistant and did what needed to be done on the campaign and also on the Senate side.'

Asked about when the relationship began, Smith stated, 'It grew over time and it’s hard to put a specific date on the start of it.'

Pressed further, he stated, 'some time in probably 2004.'

Medlin said Smith’s wife discovered the relationship when she arrived as his state senate campaign headquarters one night. She found Smith’s car in the lot, but all the lights were out in the office. She went inside, turned on the lights and discovered Smith and the woman.

'I don’t know what possible campaign work a politician could be doing in the dark,' Medlin said.

Medlin said Michelle Smith still wanted to stay married, in large part for the sake of the couple’s four children.

'The last thing she wanted to do was to be divorced, despite the infidelity,' he said."
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When is the "family values" bull, going to pass from view?  One of the legacies of Bill Clinton's impeachment issues was to "out" all of these braying hyenas among the evangelicals (Ted Haggard) and politics (Sen. David Vitter, Sen. John Ensign, and Gov. Mark Sanford)

Oh and 'lest you think this is just a problem on the right (it mainly is, because they feature these slogans) Ohio had an Attorney General Mark Dann who single-handedly reversed the temporary Democratic boomlet in that state with sexual misconduct not all that different from Sen. Preston Smith's. 

For the most part these clowns are predator pols are lawyers.  Nice.

New Jersey "Boorish" Lawyer

The invaluable Legal Profession blawg reports on the opinion of the NJ Supreme Court suspending a lawyer for one year.  NJ must be a pretty tolerant state, because this guy has had several go rounds with the authorities in the past, mostly relating to client communication problems. 

David Witherspoon's client communication problems now include soliciting sex from his clients in exchange for proposed discounts on attorney fees or as the NJ Supreme Court calls it "attempted sexual bartering."  Mike Frisch at Legal Profession summarizes as follows:

The . . . charges involved allegations that [Witherspoon] offered discounted legal services or refunds to three female clients and the daughter of a fourth client 'in the context of suggestions that they perform certain acts with him or with other women while he watched.' He told one lesbian client that her lesbianism was caused 'by a bad experience with the male sexual organ,' that she was 'looking good,' and that he 'would return $600 of fees she had paid him if she joined him on the office couch.' He claimed that these and other similar comments were made in jest.


The attorney's explanation was rejected by a district ethics committee and the Disciplinary Review Board. The DRB proposed a three-month suspension with two dissenters favoring a six-month sit down. The court here took a sterner view, although the court majority concluded that disbarment was 'disproportionate...for his boorish, insensitive and offensive, but hardly criminal, conduct.'
Justice LaVecchia, joined by Justice Albin, would disbar: 'A zero-tolerance policy toward attorneys who prey on clients, whether financially or as [he] has done, is needed to protect the public and the reputation of the profession.'"
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You know where the Bad Lawyer comes down on the exploitation of clients.  Clients are vulnerable and easy prey, the lawyer/predator is not fit to practice law.

The Tennessee Tantrum

A Greenville, Tennessee divorce attorney showed up for court believing the case was an "uncontested" divorce only to learn that in fact the matter was a "contested divorce.  According to the disciplinary opinion suspending him from the practice of law attorney Francis X. Santore went wild.

Santore exploded, he threw a cup of coffee across the courtroom and as he stormed down the court house stairs.  He violently wrenched a railing out of the risers.  Ultimately Santore was charged and plead guilty to vandalism and received a suspended year long sentence.  The disciplinary authorities suspended him for 33 months with all but 45 days "active suspension."

The Bad Lawyer blawg index is replete with accounts of outraged and angry lawyers some leading to fisticuffs, some involving bat wielding maniacs, vandals, nose biting, and tantrums of all sorts.  Some lawyers file ill-considered law suits and other forms of ridiculous pleadings traceable to out of control egos, immaturity and drug and alcohol abuse.  When I joined this profession I was astounded by the out of control acting out of lawyers, judges and others--usually unpunished and unsanctioned.  While still a law clerk, back in the day when complex documents were typed from scratch with each change I told a a veteran "probate referee" that he changed multi-page real estate transfer document in an estate matter 7 times requiring hours of re-typing.  The referee, who knew I was challenging his unthinking and arbitrary modifications--exploded and threatened to kill me.   Boy, was I surprised.

Now here's the thing.  I was wrong, according to the attorney I clerked for, why?  Because who cared how many times we walked this document back and forth between the courthouse in the middle of a blizzard, who cared how many times we had our secretary re-type this complex deed transfer--we got paid by the hour and this same referee would approve any fee we submitted for this work.  So, I apologized. 

Are you getting this? 

Who got screwed over ego?  The client.  In actuality, the beneficiary of whatever estate we were handling because larger fees were paid because the referee involved prolonged the process to assuage his ego; and, because some smart aleck law clerk called him on it.

Lawyers, especially young lawyer can be big baby's.  The divorce lawyer in Tennessee had planned his day out in a way that was rigidly fixed in his mind.  Perhaps he thought he could breeze from one proceeding to the next--and, when he discovered that what he though was a no-contest 15 minute divorce was in fact a "contested divorce trial" his control of his universe was upended.  He didn't get his way.  Reading between the lines of the disciplinary case, Mr. Santore is required to continue his involvement with the state lawyers' assistance program--this means he may also be coping with drug and alcohol issues.  This usually means the following equation applies:  attorney + alcohol=flaming asshole.  At least the latter calculus was true for me. 

Cheesburger Engine Additive Not Advisable

As I said there are certain stories that I pick up in trolling local news websites that need little or no comment, this one from reporter, Kimberly Dick at the Charlotte Observer falls into that category:

Cheeseburger stuffed in car's gas tank causes $1,000 damage

Mechanics found a cheeseburger in the gas tank of a Rock Hill woman’s car, police say.  The 30-year-old told police she noticed her car was running “rugged” late last week, according to a Rock Hill police report. The car would stop running, and let her start it again only to cut off a few minutes later.

Why?

A mechanic found a cheeseburger and a pickle inside the car’s gas tank, the report said. The lunch caused about $1,000 in damages to the car. It is not known how the sandwich got inside the vehicle’s tank.

In a separate incident reported Tuesday in Rock Hill, another woman reported seeing the door to her gas tank open when she was leaving her residence Tuesday.  Someone had poured sugar in her gas tank and scratched the outside of her car, a report said. Damage was estimated at $500.
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Putting a cheeseburger in someone's gas tank is not kosher.

Aaron Biber Update--Incarcerated

Aaron Biber, the former Super Lawyer, and Minnesota Bar Association President-elect has been incarcerated following findings by Hennepin County District Court Judge Lloyd Zimmerman that aggravating factors applied to his prolonged "grooming" and rape of a neighbor boy.  What follows is Rochelle Olson's StarTribune.com report:

"Former [Minneapolis] lawyer and state Bar Association treasurer Aaron Biber walked out of a Hennepin County District courtroom with hands cuffed tightly behind his back Thursday after a judge determined he had raped a child he knew with particular cruelty last fall.

'I have sat through every moment of this horrific trial filled with graphic, searing evidence that is mind boggling to any adult much less a child,' Judge Lloyd Zimmerman said before he revoked bail for Biber, whose sentencing is scheduled for October.  Since Tuesday, Zimmerman had heard testimony and arguments to determine whether 'aggravating factors' existed in Biber's crime.

Biber pleaded guilty last week to first-degree criminal sexual conduct with a boy over whom he was in a position of authority. Now that the judge has determined his crime to be particularly egregious, Biber can be can sentenced to more than the minimal 14 years.  Biber's lawyers have said they will ask for probation for the 47-year-old who until his arrest in December was a civil lawyer at the respected Minneapolis firm Gray Plant Mooty. At the hearing, prosecutors and defense lawyers talked about some 900 text messages between Biber and the boy.

South Lake Minnetonka Police Detective Stephen Neururer testified about the investigation. The boy's recorded 60-minute interview with a social worker was played, as was a police-monitored call between him and Biber.  An agreement on facts by both sides was reached so the 15-year-old boy didn't have to testify. He didn't attend the hearing. The victim's parents and supporters wept quietly as Zimmerman delivered his preliminary findings on the aggravated factors. He is expected to issue a formal written order on Aug. 12.

The judge said he had 'meticulously and painfully reviewed every text message' between Biber and the boy, who was a close friend to Biber's younger son.Zimmerman pointedly detailed his disgust with the defense's repeated argument that the boy was not just a willing participant in sex with Biber, but the dominant figure in their 'loving' and 'homosexual relationship.'

Assistant County Attorney Judy Johnston said in her closing argument that gay men don't choose children as partners.

Zimmerman said of the defense argument, 'The idea behind that is one that I find repulsive. I find it repulsive as a matter of fact and as a matter of law.'

The judge said that from the time Biber met the boy at age 11, he began the manipulating and planning that led to the rape. 'As a judge, I've heard murder cases. I've heard rape cases, I've heard every conceivable horrible thing that humans can do to one another,' Zimmerman said, then added that Biber's push for sex after the boy's hospitalization for depression was among the most cruel.

The judge determined that prosecutors had proven beyond a reasonable doubt four aggravating factors: Biber engaged in multiple forms of sexual penetration, the boy was 'drunk out of his mind' after Biber gave him vodka and Schnapps, Biber inflicted cruelty because he used no lubrication or protection during sex and he spent the previous 14 months escalating his sexual pressure on the child. The judge, who speaks calmly even when outraged or angered, held up DVDs admitted as evidence. 'What kind of adult provides to a child 'Well Hung Amateurs' and 'Sin City' ... so they can masturbate together?' he asked.

The boy's depression, which culminated in his hospitalization last December, was the result of Biber's actions and betrayal of trust, the judge said. The boy reported the molestation to a social worker, who then reported it to law enforcement, culminating in Biber's arrest at the Eden Prairie Mall on Dec. 11. The lawyer thought he was meeting the boy to give him oral sex, according to a recorded phone conversation played in court.

Biber's ex-wife and children were not in the courtroom. The victim's mother managed a slight smile when Biber was taken away to jail."

Mother Gets Life Sentence For Drunk Driving Death of Her Toddler

This is from the Columbus Dispatch:

Mother gets 3 years in drunken-driving death of her toddler
By John Futty

"A mother whose drunken-driving crash killed her 2-year-old daughter was sentenced today to three years in prison.  'I blame myself every day,' Jessica C. McKinley said in Franklin County Common Pleas Court before sentencing. She pleaded guilty last month to one count of aggravated vehicular homicide and one count of driving while intoxicated. McKinley, 23, Dartmouth Ave., had a blood-alcohol level of 0.224 percent, nearly three times the level at which Ohio considers someone impaired, at the time of the crash.

She was driving at least 64 mph in a 35-mph zone when her car struck a traffic barrier on Nelson Road on Jan. 6, 2009. Her daughter, Lanyah McKinley, was in the back seat unrestrained and in an unsecured booster seat. The girl died at Nationwide Children's Hospital.

Judge Tim Horton sentenced McKinley to three years for the vehicular homicide and six months for drunken driving, to be served concurrently. He also imposed a five-year suspension of her driver's license.
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While you see that the Court's sentence seems lenient consdiering the consequences, in fact any mother, any real parent understands why this post says Mrs. McKinley received a "life sentence."

12-Year Old Designated Driver

Okay, Bad Lawyer has been obsessed over the last week or so with DUI stories, and I intend to move on, but I can't resist this story from TrueCrimeReport.com  which is a great resource.  They call this guy their "moron of the day:"

"59-year-old Thomas Skinner (mug shot) of Houston likes to party. But he likes to party safely. So when he decided to get hammered Monday night, he got a designated driver. The problem: The driver was his 12-year-old grandson.


Police in Liberty Hill, Texas got a 911 call about a truck driving erratically on Highway 29. When they stopped the vehicle, they found a hammered grandpa riding shotgun, with the 12-year-old boy behind the wheel. Skinner's 11-year-old grandson was also in the back seat.

When asked why the boy was driving, Skinner responded by saying the kid was learning to drive.  Police still don't know why they were on the highway, but the boy had apparently driven 20 miles.   Skinner is now in jail, and his grand kids have been returned to their Houston home. At least grandpa gave them a good story to tell when they get older."
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Moron of the day may be a stretch when you consider some of the other stories here on Bad Lawyer, but Skinner's in the running, no doubt about it.

Report Child Abuse and Neglect, Dammit!

AZCentral reports on the arrest of a child molesting father and two pastors who knew about the abuse and failed ot report the abuse.  This is Arizona Republic reporter Krystal Klei's story:

"A father was arrested on suspicion of molesting his two daughters, and two of the family's pastors were arrested on suspicion of failing to report the accusations to authorities, according to the Phoenix Police Department.

The father was booked in connection with one count of sexual abuse, two counts of child molestation, and eleven counts of sexual conduct with a minor on July 9, Phoenix police spokesman Detective James Holmes said in a written statement. The Arizona Republic is not releasing the father's name to protect the identities of the victims. The man was arrested after his then 16-year-old daughter told a neighbor that she had been molested by her father for several years, Holmes said.

According to police, when the neighbor confronted the father about the accusations, he apparently admitted his involvement. The father also told the neighbor he knew what he was doing was wrong.  Following the confrontation, Phoenix Police officers were flagged down, Holmes said. The girl was with the neighbor when she talked to the officers, he added.

During an interview with Phoenix Police Child Crime detectives, the girl told officers of at least one instance of sexual intercourse, several instances of sexual contact over nearly a five year range, and of the molestation of her older sister by her father, Holmes said. He added that she told officers the molestation lead to her older sister moving out when she turned 18 years old.

According to police, the father admitted to sexually abusing both his daughters when questioned and was then arrested. The older daughter, now 19, told her two pastors, Daniel and Laura McCluskey, about the alleged abuse in 2008 at Church of the Word [check their website with pics of the pastors] on the 8000 block of West Camelback Road, but they did not report the accusations to police, according to Holmes.

Instead, the pastors met with the older daughter and the father. During the meeting, according to police, the father said he snuck into his daughter's room at night to touch her. The pastors suggested the girl forgive her father, because he was repentant, Holmes added. The pastors told the girl to restore her relationship with her father.

According to police, the father stopped sexually abusing his older daughter after meeting, but continued to sexually abuse his younger daughter.  Under Arizona Revised Statue, the pastors were arrested for their failure to report the abuse. The Statue states the pastors had the duty to report to Child Protective Services and/or law enforcement.

The pastors were arrested on Tuesday in connection with one count each of failure to report sexual abuse, Holmes said."
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A decade or more ago I represented a family, the Greens (not their real name)--who's daughter, Erin (not her real name,) was digitally raped by her grandfather while riding on his lap on the tractor at the family farm.  Erin was treated at the local hospital and she reported her rape to the resident child psychiatrist.  The doctor claimed Grandpa's crime was possibly "inadvertent" and family members begged the psychiatrist to not report the crime. The doctor did not report the crime.

Turns out grandfather raped every child in the Green family and others.  Even after this report by brave little Erin Green.

OurState criminal laws mandated reporting "suspicions of child abuse," nonetheless no legal consequences for the psychiatrist, or medical facility resulted.  The civil lawsuit I brought against the psychiatrist, and the hospital were dismissed and the dismissals were upheld by the OurState appellate and Supreme Court. 

Things have changed since that time.  I'm glad I was a lawyer long enough to beat on these doors.

Report suspicions of child abuse.  Do it. 

The Arizona Immigration Law Preliminary Injuction-Federal Preemption

This little Blawg is fortunate to have a number of readers who are not lawyers, and even a few who are not US citizens.  The Bad Lawyer is grateful to anyone, even the critics who read and comment.

As I said many times I am not interested in covering or particularly remarking on the "Big Story" whatever that is--and, yet aspects of the "Big Story" du jour, remind me of experiences from my career.  So yesterday a U.S. District Court Judge, Susan Bolton, issued an order granting a preliminary injunction barring the essential elements of an anti-immigration law, Arizona SB 1070 the“Support Our Law Enforcement and Safe Neighborhoods Act,” from taking effect.

I believe that it is real easy to misunderstand this story from the perspective of a non-lawyer or someone living outside of the United States so I thought I would offer a bit of insight.  On a very superficial level this story is about xenophobia, and racism versus tough immigration law enforcement and the exasperation of a border state with overburdened social and law enforcement resources.  It is naive to believe that Arizona, New Mexico, Texas and California are not bearing the brunt of a terrible drug war along their southern borders. Nonetheless, Arizona's SB 1070 was predictably prevented from going into effect. 

The primary reason SB 1070 was prevented from going into effect was because Judge Bolton made a determination that on the merits, the federal government would prevail in its case challenging the law based on the doctrine of "federal preemption."  What is federal preemption?  In its simplest terms, it is the constitutional provision that says in certain areas federal jurisdiction to make and enforce law trumps state jurisdiction to make and enforce laws.  There are specific areas of international relations, constitutional protections of individual liberties, and a requirement for uniform enforcement of police powers across borders by the national government that supersede the interest of any given state.  State laws in conflict with federal law are invalid.

While the Arizona anti-immigration enactment obviously impacts international relations and federal immigration law--the federal preemption doctrine bumps into many mundane areas of practice: medical malpractice, health insurance, "diverse corporate citizenship", and discrimination claims.  In my sordid career I filed half a dozen state court actions that were "removed" to federal court under claimed "preemption."  For a lawyer comfortable in state court, being "removed" to federal court can signal a disaster, because the rules of federal court and the sanctions for the unaccustomed practitioner are a minefield.  Defense attorneys count on "preemption" as a procedural defense for the unwary plaintiff's counsel.  This tactic is particularly effective for the young solo lawyer lacking a network of colleagues and strategic alliances to enable him or her to cope with this maneuver. 

U.S. District Court is a frightening and unyielding place to pursue a civil lawsuit unless you the young lawyer are fully on top of your federal practice skill set, and are sufficiently disciplined to meet all deadlines and filing requirements of both the FRCP (federal rules of civil procedure) and the local rules.  Most of the lawyers I know in OurTown have colorful stories of dealing with the now late-Judge John EgoManiac, who vaguely resembled a cross between Aristotle Onasis and Mr. Clean.  The unwary young attorney who filed a federal lawsuit and or was "removed" to federal court and ended up in his Honor's vast chambers could justifiably feel like a meal in the lion's den. 

Years ago, the Blond Super Lawyer wanted to adopt a child and we visited an adoption attorney's office to discuss a "targeted adoption."  When we sat down in this wonderful young attorney's office we noticed that she had beverage coasters that had Judge EgoManiac's picture in the area where your wet beverage glass was placed.  It was her creative response to being having had the experience of being held hostage in his chambers with orders "to bring [her] toothbrush," until she dismissed a lawsuit she filed that was pending in his courtroom.  Nearly every lawyer of a certain age in OurTown has similar stories of this strange old monomaniacal  Judge. 

From the outsider's perspective American law can seem a crazy patchwork, that's because . . . it is.

The Case, All About Greed

Reporter, A.G. Sulzberger at New York Times relates the story all about greed. 

David H. Brooks, the guy in the pic with the $100,000 jeweled American flag belt buckle is on trial in federal court in Central Islip, New York for fraud arising out of his running a military contractor that supplies questionable body armor to American troops in Iraq and Afghanistan. 

This case is not all that different from Bernie Madoff, Scott Sayler (the Tomato King), or Scott Rothstein's--all about greed. 

This is the pathology of money and needless things overriding morality and common sense.

911, Mom's Drunk And All Over the Road!

The ABAJournal tips us to this story in the New York Post by Beth Weinstein with contributions from Kieran Crowley and Robert Kalfus:

"A young girl fearing for her life made a frantic cellphone call to cops to report her mom was swerving wildly through traffic while driving drunk.   The Long Island mother was busted upstate for driving while intoxicated with her terrified kids in the car -- one of whom dialed 911 from the car for help, authorities said yesterday.

The boozed-up woman's 12-year-old daughter used a cellphone to tell the dispatcher that her mom was 'acting strange, speaking strange and swerving in and out of traffi'" as they barreled along Interstate 84 near Brewster in Putnam County around 6 p.m. Sunday, officials said.

'The girl reported [her mom] was driving erratically' and then hurriedly said she had to hang up, said State Police Capt. Robert Nuzzo. 'The 911 operator lost connection and tried calling the number back several times. At one point, [the phone was] picked up, and no one was talking. There was just an argument going on in vehicle.'

The mom, Jamie Hicks (pic), 48, of Islip, later registered a blood-alcohol level of 0.18 -- more than twice the legal limit of 0.08, police said. The bust occurred just a day before the one-year anniversary of the horrific Taconic Parkway wrong-way crash in which another drunk-driving mom killed herself, four children and three others.  Hicks was driving her daughter and 10-year-old son back from their grandparents' home in Southbury, Conn., cops said. After the girl phoned 911 for help, the mom pulled her 1995 Buick LeSabre to the side of the road, authorities said.

Two people driving in a minivan nearby witnessed the mom and daughter arguing inside the parked car and pulled over to investigate, cops said. By this time, troopers had arrived, guided to the location after authorities traced the cellphone."
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Tragedy averted?  Maybe. 

Certainly fatalities were averted by this brave 12 year old girl;  I don't need to remind you of the horrific Taconic Parkway DUI fatalities involving the intoxicated mom who left a picnic and killed so many in a wrong way crash along the same stretch of highway last year.

Still this remains a terrible tragedy regardless of the lives not lost to this insane woman's drunk driving.  The family tragedy of Jamie Hicks' driving under the influence will resonate throughout the lives of her family.  But there is also an incredible opportunity for Mrs. Hicks and her family and others--in darkness there is the capacity for great light, may we all find it.

Too Late for Bad Sheriff Day, Joe Arpaio Weighs In . . .

Maricopa Sheriff, Joe Arpaio waited a day too long to make onto Bad Lawyer Bad Sheriff Day, but what the Hell we knew he'd make it back in short order and sure enough the Associated Press is reporting the following:

The sheriff of the most populous county in Arizona says he's 'not going to put up with any civil disobedience' when the state's new immigration law takes effect.

Maricopa County Sheriff Joe Arpaio says that if protesters want to block his jail, he'll put them in it. The Arizona law, which takes effect Thursday, requires officers enforcing other laws to check a person's immigration status if they suspect the person is in the country illegally.  Arpaio told ABC's  Good Morning America  he doesn't know 'what the big hype is.'  He says it's 'a crime to be here illegally and everyone should enforce' the law.
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This guy is the Bull Connor of our era--thug justice.  Arpaio epitomizes disrespect for the rule of law.  His day will pass and Maricopa County will shudder at the historical association with his image.

Grand Rapids', MI "Ridiculously" Drunk Driver on Trial for Murder

Barton Deiters a reporter for the Grand Rapids Press reports on the murder prosecution of Leonel Franco-Avina (pic) who killed local resident Aaron Haynes after stumbling behind the wheel of his pick up truck with a BAC of 0.425 percent.  This is the account from MLive.com:

Death came for the 30-year-old teacher in the pre-dawn hours, from a curvy stretch of the East Beltline at the hands of a man whom authorities say had a blood-alcohol level high enough to make four people legally drunk.  And that is why a jury should convict Leonel Franco-Avina not simply of drunken driving causing death, but of second-degree murder for the head-on collision on Nov. 23 that killed Aaron Haynes, Assistant Kent County Prosecutor James Benison told a jury Tuesday.  It was the opening day of testimony in Franco-Avina's trial in Kent County Circuit Court.

Defense attorney Christine Tober said the state has failed to gather evidence to prove beyond a reasonable doubt that her client committed actions that he should have known could end in someone's death. Tuesday, the jury got to see video of Franco-Avina wandering around the Northland Drive Family Fare Store where he worked overnight in the hours before the fatal crash. It showed him cleaning the floors and spilling water as he tried to work a cleaning machine.

Employees who came into work that morning said Franco-Avina left big puddles throughout the store and did a lousy job cleaning. But none of them said they smelled alcohol on the defendant, and there was nothing on the video that showed him drinking.  But when he left work around 7 a.m., people getting coffee at the Starbucks or eating their Egg McMuffin from the nearby McDonald's say they saw Franco-Avina stumbling and falling down as he walked to his pickup, then drive over a shrub-decorated traffic island before exiting out the entrance of the strip mall parking lot.

Rebecca Kohn said she was driving on the East Beltline not far from Plainfield Avenue NE when she saw a southbound pickup without its headlights on slide into the northbound lanes. Around the same time, Robenna Banfill and her 18-year-old son, Joshua, also saw the wrong-way pickup.

'I said 'Oh my God, he's going to hit someone,'  Robenna Banfill said. 'And a few moments later, a vehicle came over the hill.'

Benison projected pictures taken at the crash scene showing the massive damage done to both vehicles; the engine compartments had collapsed into the cabs of the trucks.  Kent County Sheriff's Deputy Joseph Glynn was the first to arrive on the scene and saw Franco-Avina with his head gushing blood on the blacktop, his feet pointed at the truck's cab roof, trapped in the collapsed vehicle. He checked on Haynes, who was dead.

Kent County Coroner Stephen Cohle said Haynes suffered massive trauma, including a broken neck that killed him instantly. But he also had a ripped aorta that would have killed him if the brain stem trauma had not.

Michigan State Police crash reconstructionist Bruce Cojeen testified the impact of the crash was so violent that the two vehicles lost 45 mph of velocity in one-tenth of a second.

Personnel at Spectrum Health did a blood test on Franco-Avina, showing his blood-alcohol level to be 0.425 percent. A person is considered drunk under state law with a 0.08 percent content.

The prosecutor [said] that to Franco-Avina, whom he said was 'ridiculously intoxicated. This wasn't just drunk driving, this crosses the line,' Benison said."
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Terrific reporting of details by the Grand Rapids reporter. 

I don't have an answer but at some point we have to ask why our motor vehicle laws make a distinction between vehicular homicide and murder if alcohol is involved.  Are we "over-criminalizing" drinking and driving?  What was the intention of the legislators when they enacted separate provisions for vehicular homicide, manslaughter and murder 2?    If a person is so impaired by alcohol how does he or she form the requisite mens rea--or do we track back intent to the decision to drink, to drink too much?

I know that alcohol has the effect of "telling the alcoholic" that he or she is "okay" and okay to continue drinking and okay to drive.

Drunk Driving Murder 2-Update

The Charlotte Observer has this update on the DWI death of seventeen year old Laura Elizabeth Fortenberry (pic).  Two of her friends were seriously injured in the crash caused by Howard Clay Pasour.  Ms. Fortenberry had just graduated from North Gaston, North Carolina High School. 

The Chicago Tribune on Sam Adams, Jr., Blago's Mouthpiece's Closing Argument

The Chicago Tribune's Sam Kass has a wonderful account of the closing argument by the colorful Sam Adams, Jr. who was featured on Bad Lawyer and who we promised would deliver an old time trial lawyering. 

There are other accounts of this memorable day in US District Court in Chicago, but this is the best account that I've seen.  Click on the first link to read the colorful original from someone who was there.

Golf Outing Drunkeness Yields Illinois Bar Complaint

The Legal Profession "blawg" features the Bar Complaint against the Illinois lawyer (pic, for amusement only) who after a game a golf and multiple alcoholic beverages got behind the wheel of his car, headed home, hit a bicyclist causing serious injuries, dragged the bicyclist down the road, drove off the pavement, and then left the scene of the accident.  Mike Frisch at the LP summarizes the tale of DUI woe as follows:

A recent complaint filed by the Illinois Administrator alleges ethical violations based on the following facts:

On May 28, 2008, while playing golf near Portage, Michigan, Respondent consumed four beers and four shots of bourbon.

Respondent entered his automobile after leaving the golf course property, and entered South 11th Street in Prairie Ronde Township, Michigan, a public roadway.

Shortly after Respondent entered South 11th Street, his automobile struck Jared Sweet ("Sweet"), who was riding a bicycle along the road. Respondent's automobile knocked Sweet to the ground and dragged him several yards, inflicting upon him a compound bone fracture and skin abrasions.

After striking and dragging Sweet, Respondent's automobile left the roadway and entered an adjoining field. Respondent then reversed back onto the roadway, told a bystander that someone had been hurt 'back up the road,' and drove away from the scene. Prior to leaving the scene of his collision with Sweet, Respondent did not identify himself or offer to render assistance to Sweet. Respondent was arrested later that day. The complaint further alleges that the attorney pleaded guilty to criminal charges and was ordered to pay restitution to the victim."
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Years ago the practice area that I was most active in had an annual Golf Outing at a Country Club in a more rural area of the OurTown region.  To get to this location you had to negotiate curvy rural roads and every year, there was some car or another that went off the road on the way home.  The next day the regular practitioners would check in with one another to share laughs over drunken debacles of our close associates.

We were pretty clueless.

Lance Update--The WSJ Analysis

The Wall Street Journal has a thorough look at Lance's legal peril.  The analysis by Reed Albergotti and Vanessa O'Connell sets out the underlying story, the issues, the witnesses, the history and the implications.  This is by far the best discussion of what's in the cards for Lance Armstrong arising out of the Floyd Landis pre-Tour disclosures. 

Prison Justice

The San Francisco Chronicle is reporting on the San Quentin murder of a newly-arrived inmate who was convicted of murder in teh DUI death of a 9 year old girl and her father.  This is reporter Henry K. Lee's chilling account:

"A newly arrived [inmate] at San Quentin State Prison [. . . ]convicted of murder and drunken driving in the death of a 9-year-old Novato girl was fatally stabbed by another inmate, authorities said today.  Edward John Schaefer (pic, right), 44, was stabbed in the chest and neck at about 10:35 a.m. Monday in the prison's reception center yard and died that night, said Lt. Sam Robinson, prison spokesman.

The suspect is Frank Anthony Souza (pic, left), 31, a convicted murderer from San Jose, Robinson said. Souza had fashioned a homemade weapon, authorities said.

Schaefer was killed just 10 days after he arrived at San Quentin. The prison's reception center is where all convicted murderers in California are processed before they are transferred to other prisons.  Schaefer was sentenced July 13 to 24 years to life in prison for second-degree murder and gross vehicular manslaughter while intoxicated for killing Melody Osheroff, 9, and critically wounding her father, Aaron Osheroff in May 2009. Schaefer was under the influence when he slammed his motorcycle into the victims as they were in a crosswalk.

Judge Terrence Boren of Marin County Superior Court sentenced Schaefer a day after Melody would have turned 11.Schaefer had previously served a four-year sentence for corporal injury to a spouse. 

Souza was convicted in Santa Clara County Superior Court of first-degree murder for fatally strangling and beating John Carl Riggins, 59, who was homeless, in an alley near Lincoln Avenue in San Jose in August 2007. The two men had gotten into a confrontation after Souza stole Riggins' mountain bike, authorities said.

Souza arrived at San Quentin in January to begin serving a sentence of 60 years to life, Robinson said. Souza had served three stints in prison for grand theft, receiving stolen property and threatening a prosecution witness with force and violence."
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This story reminds me of the plot of the Fritz Lang movie, M. 

Do Not Vote For My Dad For Judge!

The Huffington Post and probably by now, a dozen or more websites feature the story of the judicial candidacy of Oklahoma attorney, John Mantooth (pic) which is being actively opposed by his own daughter that features advertising, a website and a facebook page opposed to his candidacy.

This is from the Huffington Post account:
"An Oklahoma judicial candidate is fending off a political attack from his daughter, who has taken out a local newspaper ad urging voters: 'Do not vote for my dad!'

McClain County judicial hopeful John Mantooth's daughter and son-in-law paid for the quarter-page advertisement, which features a picture of the daughter's family, highlights cases in which Mantooth has been sued and lists a website the couple started, . http://www.donotvoteformydad.com/

Mantooth said the bad blood stems from his 1981 divorce from his daughter's mother.  'This is a family issue which should have been kept private,'  he said Monday. 'I'm very sad about this. I'm very disappointed. I'm hurt, but I love my daughter, and I want things to get better, and I hope they will.'

Jan Schill, 31, said she never has had a good relationship with her father and doesn't think he'd make a good judge.

'We just felt like it would be bad if he were to become a judge,' Schill said in a telephone interview from her home in Durango, Colo. 'I assumed that he would not appreciate it, but he's made so many people mad, I'm just another mark on his board of people's he's had a beef with.'

Keith Gaddie, a professor of political science at the University of Oklahoma, said such campaigning illustrates that 'none of us wants our lives too closely examined. It's reality show politics,' Gaddie said. 'It's unsavory. It's undignified, and it's real.'

But Mantooth also suspects political maneuvering. He said his son-in-law, Andrew Schill, was once law partners with one of his opponents in Tuesday's primary, Greg Dixon.  'That's a very strange set of circumstances,' Mantooth said. 'For a person to believe that Greg Dixon had nothing to do with this is like trying to believe that cows give chocolate milk.'

Andrew Schill said he and Dixon were law partners for about three years, but that the partnership was dissolved after Schill and his family moved to Colorado in 2007. He said he and his wife are responsible for the ad and that there was no coordination with Dixon.  'We put that stuff out there,' Andrew Schill said. 'We want people to look at this record and his cases. I think people can look at that and draw their own conclusions.'

Dixon also said he had nothing to do with the ad or website.
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Talk about some unresolved family issues.

BJs for the Sheriff--More Bad Sheriff Day

Courthouse News Service is report on the Texas Sheriff, Bill Keating (pic) who solicited sexual favors from female inmates and the  wives of men in trouble with the law.  This is Dan McCue's report:

"The former sheriff of Montague County (near Wichita Falls, Tx) used his position to demand 'blow jobs' and other sexual favors from female inmates and other women whose relatives or husbands were entangled with the law, three alleged victims claim in Federal Court.  The women say the county failed to stop or prevent former Sheriff Bill Keating from 'coercing, intimidating, and threatening' women who relied on him to deliver justice.

Two of the three alleged victims, Lashana Dykes and Dawnita Knight, say they were repeatedly targeted for sexual assault and harassment by Keating. The third plaintiff, Shelley Lemon, says Keating made several inappropriate sexual propositions after he let her severely disabled husband off on a probation violation.

Keating allegedly visited Lemon's home after a warrant was issued for her husband, who had recently suffered two severe strokes that left him 'confused' and 'child-like.' Lemon says she offered Keating a cup of tea, which he declined, stating, 'what I really need is a good piece of ass.' He then 'demanded that Lemon 'owed him a favor' in return for his efforts in getting the warrant lifted and explicitly stated that he thought he was entitled to a 'blow job,' the lawsuit states.

Lemon says she 'put him off' that day, but later enlisted the help of police investigators after Keating kept calling to try to 'arrange a sexual encounter.'  Investigators allegedly asked her to wear a wire during her next meeting with Keating. Suspicious, the sheriff cooled his advances, but asked a community 'snitch' -- a local drug addict whom he allegedly paid for sex -- whether she thought Lemon could be trusted, according to the complaint. Lemon says she moved to Waco, Texas, because she feared for her life after Keating found out that she had been talking to police.

Dykes claims that within hours of her arrest, Keating drove her to a remote area in his patrol car and asked for oral sex. When she declined, he began rubbing her breast and between her legs, the lawsuit claims. When she continued to resist, he allegedly offered her cigarettes, marijuana and meth, which she also turned down.

She says Keating called her into his office about a month later. He allegedly handcuffed her when she arrived, telling her that 'today is your lucky day.' He then 'bent Dykes over his desk then pulled down her pants and told Dykes that they were going to do some 'role playing,' the lawsuit states.

'Keating pull (sic) down his own pants and tried to rape Dykes in his office,' the complaint states. But his plans were foiled when a jailer knocked on the door, she claims. 

Knight says her severe depression made her 'easy prey' for the sheriff. Although she resisted his overt sexual advances, she says she was repeatedly taken to his office to give him massages and watch porn on his office computer while she sat on his lap. Knight said she was twice required to have sex with a male jail trustee and was constantly reminded of her jailers' power over her. She was ultimately transferred to another jail by state officials.

The three women have sued Montague County for alleged civil rights violations.  They say the county is liable for failing to properly train and supervise its employees, allowing the sexual victimization of inmates by jail staff, fostering and encouraging such abuse, and failing to redress the situation."
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Consider the vulnerability of these women, and the incredible power of the Sheriff.   When one inmate makes an allegation, . . . you know what I mean.  When three make the claim with the sort of detail you have here, I think you might have something.

The Orange County, California Sheriff Says This Lady Punched Herself In the Face

Yeah, that's right, the nice lady in the pic, with the black eye that is suing the Orange County Sheriff's department claiming they used excessive force according to the Orange County Register, they are claiming she punched herself in the face sustaining the injury.  This is reporter Teri Sforza's account:

"Might the county’s defense be summarized as, 'The lady gave herself a black eye, and you can’t sue us anyway, and everything regarding our officers’ history of troublesome behavior must be kept from the jury?'


The wheels of justice do grind.

We’ve been telling you about the lawsuit involving an Old English sheep dog, a woman named Toy (who suffered a nasty black eye), and Orange County Sheriff’s deputies (including one who was arrested for DUI after two crashes within a half-hour). Even though the federal judge handling the case seemed to give the county the kiss of death — 'a reasonable jury could conclude that the defendant officers used excessive force' – the case is proceeding to trial[.]

[The Cirty of]Mission Viejo paid $24,000 to make this suit go away, mind you, but the county is fight, fight, fighting on. The final pretrial conference is set for July 29, and the trial is set to begin Aug. 24, according to a proposed order (read it here: pretrial conference order). We’ve asked the county to provide the billing totals for the law firm handling this case, and we’ll alert you when they arrive.

[Orange] County’s planned defense for excessive force charges in the Toy/sheep dog case?

That its deputies have 'qualified immunity' because they 'acted reasonably, in good faith, without malice and within the scope of their duties as sworn peace officers.' That 'a public employee is not liable for injury caused by his instituting or prosecuting any judicial or administrative proceeding within the scope of his employment, even if he acts maliciously and without probable cause.'

And that 'any injury sustained by plaintiffs were self-inflicted.'

Hmmmm.Both sides are asking the judge to exclude stuff that might make them look bad. White’s lawyer doesn’t want the county mentioning that Toy White is currently unemployed; the county doesn’t want White’s lawyer mentioning the troubled history of some of the deputies, particularly former double-crash Deputy/suspected drug dealer Allan Waters. (The county settled another case involving former Deputy Waters for $32,000. And Waters is no longer a deputy; shortly after he turned in his uniform, he was arrested for DUI and on suspicion of being a drug dealer who traded fake drugs and cash in exchange for real prescription drugs.)

So what’s the fuss about?

Toy White’s Old English sheepdog nipped a trespasser on her Mission Viejo property in July 2007. Soon four OC sheriff’s deputies and a Mission Viejo animal control officer arrived at White’s home, demanding that the dog be surrendered for quarantine. White’s husband asked if there were any other options for quarantine besides seizing the dog; White asked if the officers had a search warrant; when they said no, White proceeded to try to close her front door. What happened next depends on which side of the door you were on:

White maintains that the animal control officer stuck his foot into the door stop her from closing it, one of the sheriff’s deputies shouted,  'She’s resisting,' [BL:  Hmmmm, where have we heard that before?"] and then three deputies collectively stormed White, slamming her head and left side into the limestone flooring.

The county maintains that White pushed the animal control officer in the upper torso, and that the deputies rushed in to 'prevent her from further assaulting' the animal control officer. White was combative and struggled with the deputies, who then restrained her and arrested her for obstructing a peace officer. She was later charged with assault and battery on a police officer, though criminal charges were dismissed.
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I have a feeling we will be covering a number of Bad Sheriff stories in the next day or so . . .

I remember looking far worse in a booking photo as a result of my "resisting" and "non-cooperation" with Sheriff McFoul's pepper-spraying deputies--aremd as I was with a briefcase and raincoat.

Hot Cleveland Steamer--McFaul Blames Clevelanders and the Media for Being a Crook

Former sheriff Gerald McFaul sentenced to house arrest

The sound in this video may be a little muffled, but what McFauls says is: "And that paper [the Plain Dealer  and] this town. It ruined my health, and my wife's health and my kids and family. And I am sorry."  He adds that if he had known how illegal and unethical his behavior was he "might not" have continued to be a crook and do the illegal and unethical acts that got him prosecuted.  Decades of bribery, theft, nepotism, cronyism and McFaul gets a year of house arrest and three years of probation. 

Oh by the way, McFaul has leftover campaign funds sufficient to cover his penalties although it's doubtful whether he can directly draw on these sums to pay his fine.  Cleveland-area colleagues tell me McFaul is set in terms of his pesnion-situation, also thanks to the taxpayers.

Cuyahoga County Sheriff McFaul, House Arrest

Long time Cuyahoga County Sheriff, Gerald McFaul (pic, center) was sentenced to a year of house arrest by a visiting Judge in Cleveland, Ohio yesterday, after admitting to the court that he is a crook and thief. 

McFaul who ran an old-style patronage and bribery business out of his county office in Cleveland, Ohio is the middle guy in the courtroom photo. His son stands to one side and Vice-President Joe Biden's pal, John Climaco, is on McFaul's right in the pic above.  McFaul, a former pipe fitter and Cleveland Councilman held an annual clam bake and birthday bash where bundles of cash were passed to him in thick envelopes.  His employees were forced to sell clam bake tickets even the Cuyahoga County Courthouse. McFaul was also a drunk and a sexual harasser.  He got away with it.  Because electoral politics in this old rust belt city was a name game he had life tenure. 

McFaul and his ilk represented the easier softer way into a lucrative law enforcement career:  know him, be related to him, be married to someone related to him, be related to another county official.  Cuyahoga County, like Cook County, Illinois, Wayne County, Michigan, and Maricopa County, AZ--has been going through an unwinding from the former era of corrupt politicians interested in enriching themselves and their pals.  Goodbye Sheriff McFaul.

At the link you will find Plain Dealer reporter Mark Puente's story and a list of the Plain Dealer's coverage of this unbelievable "law enforcement" career.  There's one further point that deserves to be made--the Plain Dealer coverage over the last 8 years or more is directly contributory to the reform of Cuyahoga County government.  But this estimable investigative coverage of current scandals in county government was preceded by decades of unquestioning, ignorant, and enabling jounalist malpractice by publishers and editors invested in the status quo.

Drunk Driving, Murder 2

The Charlotte Observer is reporting on the second degree murder charges against a Gaston, NC driver who killed a 17 year old local girl resulting in his 4th DWI arrest.  This is the Observer by reporters David Perlmutt and Steve Lyttle: 

"A Gaston County man was charged this afternoon with second-degree murder after a Jeep Cherokee he was driving Sunday night slammed into a car and killed a 17-year-old girl who had recently graduated from North Gaston High. Authorities arrested Howard Pasour (mugshot left), 28, of Bessemer City, this afternoon and charged him with second-degree murder, habitual DWI, two counts of assault with a deadly weapon with intent to inflict serious injury and three counts of death by vehicle, said a spokeswoman with the Gaston County Sheriff's Department.

Pasour, who has three prior DWI convictions and an array of other arrests, is being held in the Gaston County Jail.

Shortly before 9 p.m. Sunday, he was behind the wheel of a Jeep Cherokee, traveling about 60 mph, when the SUV crossed the center line and collided head-on with an 1984 Oldsmobile driven by 19-year-old Victoria Elizabeth Iffergan, the N.C. Highway Patrol said this morning.  The brunt of the impact was on the Oldsmobile's passenger side, instantly killing Laura Elizabeth Fortenberry, 17, who had graduated from North Gaston High in June. She was pronounced dead at the scene, Patrol First Sgt. Tracy Greene said this morning. Iffergan and a back-seat passenger, 17-year-old Evan Griffith, were air-lifted to Carolinas Medical Center in Charlotte. Iffergan, Greene said, underwent surgery Sunday night. The condition of the two teens isn't known at this time.

Pasour was treated and released, and was at his father's home in Bessemer City this morning, Greene said Pasour's father reported to the highway patrol. So far, the patrol has charged Pasour with DWI -- his fourth since 2002 -- possession of open alcohol containers, driving with a revoked license and reckless driving. N.C. court records show that Pasour has been charged with offenses dating back to 2002, including three DWI convictions, all in Gaston County, and other traffic charges, drug charges, larceny and shoplifting.

Greene said he and Sgt. J.A. Brodhage plan to meet with District Attorney Locke Bell today to discuss additional more severe charges, including death by vehicle, manslaughter or second-degree murder charges. 'We'll present the evidence; we have put together a good package,' Greene said.  Pasour, he said, wasn't given a Intoxilyzer exam because he'd been taken to a hospital. 'Blood was taken and it has been sent to the state lab,' he said. It could take months for blood-alcohol results to be returned.

Open 'alcohol containers' were found the Cherokee, Greene said."
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Yeah, you don't want to hear me preach but there is a terrible, cosmic and paradoxical message about the power of alcoholism in this fatality.  Thank God, this young woman was not your daughter or mine.