How Not to Behave at Your Sentencing

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?

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.

Would You Convict Romeo In the Murder of Tybalt?

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

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"

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

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."

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!

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.

Cyclist Killed in LA Road Rage Incident

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."

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."

Martin Frost: Ex-Congressman, Lawyer, Proud Thief



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

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.

The Albuquerque Chief Criminal Judge Is a Rapist?

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.

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

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?

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

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

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.

Two Words No Man Likes to Hear: Botched Circumcision

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!

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.

Creative DUI Sentencing

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.

NC Death Penalty Lawyer, Lisa Dubs, Profiled

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!

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.

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

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"

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

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

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

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?

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"

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

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.

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

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!

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?

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

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?

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?

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

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?

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.