Another Drunk Mom, Sentenced for Child's DUI Death

Carmen Huertas (pic) received 4 1/2-year sentence for the DUI death of a 4-year old child (not her daughter) consistent with the recommendation of the child's father according to a story at the New York Daily News. 

As I've said on many occasions, Ms. Huertas and drunk drivers like her, actually receive life sentence--this is not hyperbole.  If you have a conscience, you don't shake your responsibility for the harm you drunkenly did others, just because you were sentenced for the criminal offense.

According to the Daily News story:

"[Huertas] eyes red-rimmed with tears, [ . . .] agreed she deserved punishment.

'I am not a monster,' the mother of three said while members of her family sobbed. 'I am a loving mother who made a horrible decision that caused the death of a wonderful child. I know that I must be punished.'" 

Huertas, own daughter was injured in the crash when she lost control of her speeding van on a curve.

No Sharia Law In Oklahoma

The Los Angeles Times has this remarkable report of a Oklahoma ballot measure which if passed will enact a ban on Islamic Sharia Law practices.  The LAT piece notes that Sharia Law practices don't exist in Oklahoma, but hey who's to say that a good preemptive measure won't preserve freedom and liberty over the long haul, I guess.

News factoids like to cite to ridiculous archaic laws and ordinances that are still on the book in places in places around the US, this is a presumptively absurd.

Negligent 4-Year Olds

The story of the 4-year old bicyclist (on training wheels) being sued for knocking over a senior is all over the Internets and while I prefer to be the first Blawgger to discuss a legal case I find at local news websites, this now-chewed story deserves a remark. 

You can read Professor Eugene Volokh left his usual insights at the libertarian blawg Volokh Conspiracy, I have a slightly different take.

These "outrageous" stories are noxious.  What is alleged to have happened was a non-negligent 87-year old woman, on the sidewalk in front of her her residence--was knocked down suffering a hip fracture which required hospitalization and surgery.  The question is who should bear the burden of loss as a result of a serious personal injury?  Tort law provides an ancient procedure for obtaining an answer yet we get lost in the seeming absurdity of a lawsuit vis-a-vis a little girl. 

In reality, while the named child is the putative party, the representative for the elderly victim is bringing an insurance claim.  An insurance policy, generally speaking, a "homeowners' insurance policies" provide coverage for the "insured" youngster for persons including innocent elderly ladies trying to walk up the sidewalk. 

Yes, of course, the insurance company's representatives want you to be shocked, disturbed and outraged that a lawsuit against a 4-year old is permitted in this "litigious society."  Bull.

Macomb County Prosecutor: "You Mother*******. I Am Going F****** Bury You"

Macomb County, Michigan is a part of the Detroit-metropolitan area.  The Macomb prosecutor, Eric Smith (in pic, right) like many County prosecutors around the US has an inflated view of himself and his powers as evidenced by the voice mail message quoted above and set out in the MLive.com account of a call (at the MLive link you can hear the recording of the call left on voice mail, for yourself) Prosecutor Smith made to James Perna, a candidate for commissioner running against Smith's brother.  Here's reporter, Jeff Wattrick's story:

"Eric Smith, the Macomb County Prosecutor [ . . .] left a threatening and profane message on James Perna’s voicemail. Perna is running againg Smith’s brother, Clinton Township fire commissioner Bob Smith, for a Macomb County Commission seat.   The dispute stems from a basically vanilla bit of negative campaigning. Perna sent out a campaign mailer claiming the entire Smith family has long relied on government jobs instead of working in the private sector. That banal slight led Smith to say this as Perna’s voicemail was recording:

"'Jim, this is Eric Smith. It’s 20 to 12. I’m glad you’re a man of your word, you lying mother******. Fine you want to take shots at my brother, he’s running against you. That’s fine. I think it’s a weak move but you want to do that, go ahead. You throw in my mom and my dad, who’s been dead for ten years…you mother*******. I am going f****** bury you. I hope you don’t mind, because you just opened the door.'

As political consultants Joe DiSano and Joe Munem point out on the Saturday edition of their 'To Guys Named Joe'podcast, Smith’s Henry Hill-esque voicemail may violate laws against using profanity in a threatening manner over the telephone.  ct. 30, Joe DiSano on Two Guys Named Joe: This is a devastating situation for Eric Smith. I think there are legal implications to this. I mean this is a sitting county prosecutor threatening to bury someone."
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In OurCounty, one of the finest local Small Court judges that I knew wanted to run for the OurCounty Court of Appeals.  This Judge lined up the grass roots political support for the electoral run for this seat, but on the eve of a crucial party convention the local County Prosecutor and two other party bosses (notably: now charged or admitted federal corruption felons) informed the candidate Judge that he would withdraw from the race.  In language not much different from that used by Smith, the OurCounty prosecutor told the Judge that his judicial career was over unless he withdrew from the race because he and his cronies had a politically preferred candidate. 

The arrogance of these County prosecutors is astonishing, and yet it would be a mistake to think that this is a rare occurrence.  This sort of thing went on in the decades before I became a lawyer and throughout my sordid career.  As a young lawyer I spent a few years in the offices of the lawyers who ran the local GOP, lawyers, judges, contractors, mayors, politicians and people wanting something from politicians of all stripe sat around the lobby of this office.  Favors and deals of all sorts were exchanged.  You see, what you might think is an anomaly is in fact common practice.  My fear is that with "reform" and the inevitable growth of "merit selection" of public positions including Judgeships--this sort of deal making continues but at a level you the voter will never be able to address.  The dirty deals now done dirt cheap, will be institutionalized and beyond your purse.

Prosecutor Smith screwed up, royally.  If he has half a brain, he will be convincing his brother to withdraw from the race; he'll report himself to disciplinary counsel; and, he'll issue an abject apology to the voters with a commitment to not repeat the error.  If he's lucky he'll survive the public reprimand that he deserves, and he'll be able continue his career as a wiser and more circumspect public official.  Right now, he's just a punk.

False Allegations of Crimes Made By Arpaio and Thomas--US Attorney Confrims

OK, you can read the Bad Lawyer archive of Maricopa County, Arizona stories to get the context if you haven't been following this carnival. 

Sheriff Joe Arpaio (America's Toughest Sheriff) and his boy Andy, (former Maricopa County Attorney, Andrew Thomas') engaged in a Stalinistic terror campaign to indict and prosecute all other elected Maricopa County officials not-named-Arpaio-or-Thomas--but, as we suspected all of the charges, indictments, and arrests were false.   Reporters Yvonne Wingett and JJ Hensley at AZCentral relate and supplying links to the US Attorney's summary of his investigation of cases Arapaio and Thomas forwarded to the feds for followup, after numerous dismissals by Arizona courts.  The conclusion by the feds, no evidence of any crimes by any of the Maricopa officials persecuted by Arpaio and Thomas.  

Here's the article:

"There is no evidence of federal crimes by county officials in material forwarded to federal prosecutors by Maricopa County Sheriff Joe Arpaio and former County Attorney Andrew Thomas, U.S. Attorney for Arizona Dennis Burke says.  Last March, Arpaio and Thomas forwarded nine cases of suspected county corruption to the U.S. Department of Justice's Public Integrity Section for review. Though an attorney working on behalf of Arpaio and Thomas said federal officials promised to review the material, a Justice Department section chief later chastised him for giving the impression that federal agents would likely take on the investigations.

The cases instead were sent to the U.S. Attorney's Office in Phoenix for review.

'Our thorough review has shown that there is a total lack of evidence of the commission of any federal crimes by the individuals listed in the materials,' Burke wrote in a letter to Interim County Attorney Rick Romley. 'Furthermore, in several instances, the evidence was so lacking as to make the theory of liability nearly incomprehensible.'

However, Burke recommended the matters be reviewed for any potential violations of state statutes. Romley, who cannot review the matters because of conflicts of interest, has asked the Navajo County Attorney's Office to perform that task.

Robert Driscoll, an Arpaio attorney, said Arpaio and Thomas filed a wide-ranging racketeering suit after failed attempts to get an outside prosecutor to review their allegations against other county officials. When the racketeering suit was withdrawn, Driscoll said Arpaio and Thomas wanted a prosecutor to review the cases.

'I don't think it would be fair to say that a declination (to prosecute) means there's nothing there,' Driscoll said. 'There's been a review and people are better off than they were at least knowing it's been reviewed.'

The material included Arpaio and Thomas' investigations into the county's project to build a new court tower, and use of public funds to search for listening devices in county offices. Those cases were presented to a grand jury, which determined there was no probable cause that a crime was committed."
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So now you have an overwhelming finding of pure political malevolence by these two clowns, Arpaio and Thomas.  Andrew Thomas was soundly defeated in a bid to be the Republican nominee for the position of Arizona attorney general and a bar investigation is underway.

Arpaio's profligate spending on guns and lawyers, including Big Law--ended when the County Supervisors he and Thomas repeatedly and unsuccessfully indicted recently regained control of the county spending authority.  And Arpaio's Sheriff's department is itself on the verge of collapse in the face of corruption investigations and denunciations from former trusted associates. 

You gotta give it up for Sheriff Joe, he is the darling of the Tea Party.  He's on the road raising money for all the tin foil hat types, that is until he ends up in U.S. District Court. 

But Arpaio's victims: county officials who were arrested, smeared and indicted; and, the taxpayers of Maricpa County, they just keep paying.

Stomach Turning, Karma-Ready Crime--Sentencing

A woman from Baltimore County, Maryland faked stomach cancer to defraud donations from persons, mostly friends, moved by her plight.  In fact she utilized social media including Facebook to further her scheme.  The Maryland Daily Record has this account of her sentencing:

"A Baltimore County woman who stole thousands of dollars from friends by pretending she had terminal stomach cancer was sentenced Thursday to 15 years in prison and ordered to pay restitution totaling more than $14,000.  'In my opinion, you are a professional thief,'  said sentencing Judge John Grason Turnbull II, who also said he would recommend Dina Leone for treatment at the Patuxent Institution.

Leone pleaded guilty in June to one count of felony theft in Baltimore County Circuit Court.  Leone used Facebook to get in touch with old high school friends, telling them she had no insurance and could not afford cancer treatments. Friends and acquaintances rallied to her cause and raised funds. The family of professional skateboarder Bucky Lasek, a high school classmate of Leone’s, arranged an all-expenses paid trip to Disneyland last year for Leone and her family.

Inconsistencies ultimately unraveled Leone’s scheme. Police noticed her photos sometimes showed a 'catheter' in the right side of her chest, sometimes in the left. Leone shaved her head prior to buying wigs, but friends noticed she lacked bald spots that would indicate her hair had fallen out. Area hospitals also said they had no record of Leone being treated for cancer."
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I know you can get less time for killing someone in and around Baltimore. 

I'm trying to figure out if Judge Turnbull is a wee bit out of control?  Grandstanding? Would the outraged Judge sentence the "blind" beggar to 15-years?  Doubt it. 

As I suggested in the title to this post, this woman's crime will bring the kind of Karma no one wants!

Colorado Hit-Skip Attorney Suspended for 3-Years

In April I told you about Colorado attorney Jeffrey S. Detlefs (pic) who was convicted of vehicular assault, and hit-skip after striking a cyclist who by coincidence was a local public defender.

Detlefs was driving while drinking and his child was in his SUV.  In my April account I reported that he received a 9-year prison sentence.  This morning, the Legal Profession blawg reports that Detlefs received a 3-year license suspension, um Law license.   Here's link to the opinion syllabus and a link to the story at the Legal Profession blawg.

First Amendment Provides No Academic Freedom for Public School Teachers--Sixth Circuit

Courthouse News Service has this account of a recent Sixth Circuit U.S. Court of Appeals decision holding that the firing of a Cincinnati-area teacher for assigning controversial book titles: Siddhartha, Fahrenheit 451, Heather Has Two Mommies, etc.,  in her class, did not contravene the doctrine of "Academic Freedom" under the First Amendment to the U.S. Constitution.  Here's the story:

"An English teacher who lost her job at an Ohio public high school after assigning books that the school board found offensive, including Hermann Hesse's Siddhartha, does not have a First Amendment claim, the 6th Circuit ruled.   The appellate panel in Cincinnati upheld a lower court's ruling for the Tipp City Exempted Village School District, writing that the right to free speech 'does not extend to the in-class speech of teachers in primary and secondary schools made 'pursuant to' their official duties.'

Teacher Shelley Evans-Marshall can speak and write publicly about academic issues outside the classroom, but her curricular choices come under the school board's oversight, Judge Jeffrey Sutton wrote for the three-judge panel.

After receiving positive performance reviews in her first year at Tippecanoe High School, Evans-Marshall came under scrutiny in 2001 when she assigned Ray Bradbury's Fahrenheit 451 and Hesse's Siddhartha to her ninth-grade class.  She asked her class to explore the government censorship theme of  Fahrenheit 451  by doing presentations on books that are frequently censored by schools and libraries.

A parent complained that some students had opted to present Heather Has Two Mommies by Leslea Newman, and the school principal, co-defendant Charles Wray, asked Evans-Marshall to have the students choose a different book.  Parents also objected to the explicit language and sexual themes of  Siddhartha.  About 100 parents attended the October school board meeting to question Evans-Marshall's teaching methods and materials, and they submitted a 500-signature petition calling for 'decency and excellence' in the classroom.

School officials grew more concerned they read writing samples from students in Evans-Marshall's creative writing class, including a first-hand account of a rape and a story about a young boy who murdered a priest and desecrated a church.  In the spring, Wray gave Evans-Marshall a critical performance evaluation, and the school board voted against renewing Evans-Marshall's contract. Evans-Marshall sued the school board, Wray and superintendent John Zigler, claiming they had retaliated against her 'curricular and pedagogical choices' and tried to restrict her First Amendment right 'to select books and methods of instruction for use in the classroom without interference from public officials.'

A federal judge ruled against Evans-Marshall, saying she failed to prove that her teaching methods led to her dismissal.

The federal appeals court affirmed, but on different grounds.  The judges said Evans-Marshall 'has shown that her teaching choices caused the school board to fire her,' but she failed to clear the hurdle in the Supreme Court's 2006 ruling in Garcetti v. Ceballos, which states that when government employees speak 'pursuant to their official duties,' they are 'not speaking as citizens for First Amendment purposes.'

"In the light cast by Garcetti, it is clear that the First Amendment does not generally 'insulate' Evans-Marshall 'from employer discipline,' even discipline prompted by her curricular and pedagogical choices and even if it otherwise appears (at least on summary judgment) that the school administrators treated her shabbily,' Sutton wrote, quoting Garcetti.
'And if it is the school board that hires that speech, it can surely 'regulate the content of what is or is not expressed,' what is expressed in other words on its behalf,' the ruling states. 'Only the school board has ultimate responsibility for what goes on in the classroom, legitimately giving it a say over what teachers may (or may not) teach in the classroom.'
The appellate court said Evans-Marshall was representing the school as a teacher, and the board is in charge of the school's curriculum under Ohio state law.

'This is an accountability measure, pure and simple, one that ensures the citizens of a community have a say over a matter of considerable importance to many of them - their children's education - by giving them control over membership on the board,' Sutton wrote.

'Every child in Ohio must attend school, providing public school teachers with a captive audience for their in-class speech, and providing a compelling reason for putting curricular choices in the hands of 'someone [they] can vote out of office,' or who is otherwise democratically accountable.'

If Evans-Marshall's speech is protected in the classroom, the judges wrote, the same principle would support the principal's objections to Evans-Marshall's teaching methods.   'Permitting federal courts to distinguish classroom vulgarities from lyrics or to pick sides on how to teach Siddhartha not only is a recipe for disenfranchising the 9,000 or so members of the Tipp City community but also tests judicial competence,' Sutton wrote.

The 6th Circuit also ruled that the 'academic freedom' concept does not protect curricular speech at the high-school level, because the notion was conceived and applied in universities to protect teachers who are also researchers or scholars."
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Link to opinion.

Boy things have changed in schools since I was a kid.  Instead of the Tipp City parents going off about the literary choices of the teacher they might be better served looking at what their kids are looking at and posting on Facebook and their cell phones.   Censorship in River City is alive and well. 

The problem for this poor academic will be trying to find future employment--all because she believed in a constitutional ideal.  Sad.

Another Whack-Job Government Lawyer

Over the last several days I've brought you a couple of stories about government-employed lawyers engaged in really mind-bending bullshit conduct.  This guy may take the cake, a New York lawyer engage in racial harassment, then again the lawyer stealing from the blind vendor....this is via the ABAJournal with a link to an article by Brenda Lyons and Paul Nelson at the Albany Times-Union:

"A state Department of Civil Service lawyer faces hate crime charges for allegedly threatening to kill an African-American woman and to kidnap a 'little black boy and tie him up' during two separate phone calls over the summer to people of color in his neighborhood, according to court papers.

James J. Hennessey Jr. (pic) attempted to hide the origins of the calls, which occurred on July 19 and July 21, by using a website called www.bluffmycall.com, the criminal complaint states.   Hennessey, 58, was arraigned Friday on two counts of second-degree felony aggravated harassment by Albany City Court Judge William Carter who asked him during the hearing if he could afford an attorney.

'I'm not sure but I think so,' said Hennessey, who was shackled and did not have an attorney representing him. The judge entered a not guilty plea on his behalf and set bail at $15,000.

He told the judge that he worked as a lawyer for the Department of Civil Service and later asked about the payment options for bail. Hennessey, who earns $104,080 a year, had posted bail by 3:30 p.m. Friday, about 90 minutes after the arraignment ended. Outside court, he declined comment when approached by a reporter. It was unclear late Friday if he had retained a lawyer.

Albany police said Hennessey told them he once worked for the New York Police Department. It's unclear if Hennessey had been an officer with the NYPD.  The criminal complaint alleges that at 10:30 p.m. on July 19, a woman on South Pine Street received a call in which Hennessey used racial slurs and expletives and told the woman that he was going to kill her. The court papers state that the woman was targeted because she is 'of African-American origin.'

Two days later at 1:30 p.m., a man on Winnie Street received a call in which the caller told him, 'we are going to kidnap the little black boy who plays outside and tie him up,' according to the criminal complaint. The papers state the man was 'selected because he is of Hispanic origin and has a dark-skinned nephew.'

Authorities were able to trace the calls to Hennessey through documents from Verizon Wireless and a Time Warner Cable account identifying Hennessey as the subscriber.  Albany police were assisted in the probe by the FBI and Albany County district attorney's office.  Police records show Hennessey filed at least two complaints with Albany police several years ago alleging someone had done damage to his home and vehicle.

Hennessey has been employed as an associate attorney with the Department of Civil Service since April 1993, according to David Ernst, an agency spokesman. Ernst on Friday said there was no change in Hennessey's status with the agency."
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On rare occasions I've come across truly irredeemably racist individuals.   A surprising number have been cops.  While I have represented many cops as well as many municipalities vis-a-vis their safety forces, and I count many cops among my current friends--there is something that I trace to education, bent of mind, and daily exposure to peril that animates this emotional defect among the police.

What an Asshole!

The Legal Profession blawg has a link to the disciplinary opinion supporting a public reprimand for Commonwealth of Virgina attorney Hilton Gordon Oliver a Virginia Beach attorney who handled a custody matter.  His client the mother who would lose custody was described by a witness as a "prostitute" based on his personal knowledge as a former paying customer.   After the custody proceeding, the lawyer sent a letter, including a transcript of testimony by the witness,"Mr. C," to the non-party witness' wife--questioning why Mr. C. would "falsely" testify to having patronized a prostitute. 

What an asshole.

Years ago, a friend of mine was very hurt by a relationship where he strongly suspected that his wife was involved with a married neighbor.  He intercepted damning emails.  We talked over coffee about what he should do with the emails, and, of course, his first inclination was to share the evidence with the neighbor's wife, "to alert her."  Upon reflection he realized that such an act was nothing more than spreading his misery to an innocent bystander--that it was his anger, outrage, pain--his ego, motivating the desire to share the pain.

In this case we have a lawyer acting in pure spite.  Not knowing the underlying facts of the disciplinary case the offense seems to me to be one justifying a harsher sanction, perhaps there was substantial mitigation?  We do see alot of this sort of gamesmanship in the divorce and family bar.  Nasty lot.

By the way, I included a useful diagram.