The Clerk Says There's Probable Cause to Throw Yo Ass In Jail, That's Good Enough for Ohio

According to a report at the Cincinnati Enquirer website you can get your ass arrested in Ohio, and hundreds in Hamilton County, Ohio, have--on the mere signature of a clerk of courts.  Apparently some places in Ohio have disposed of that "leetle detail" of an arrest warrant issued by a Judge of competent jurisdiction!  The shocking expose by Dan Horn follows: 

Police in Hamilton County have arrested hundreds of people in the past year because of a criminal complaint system that the county's top prosecutor says is bad public policy and some judges say violates Ohio law.  The system has allowed court clerks - rather than prosecutors or judges - to approve and issue arrest warrants based on complaints from private citizens. Those complaints have sent people to jail for domestic violence, theft and other misdemeanor offenses despite a 2006 Ohio law that requires a judge or prosecutor to review complaints before someone is arrested.

Some law enforcement officials say the lack of a review led to weak criminal cases that are more likely to be thrown out of court and to abuses by people looking to settle personal scores. In some cases, Hamilton County Prosecutor Joe Deters said, people could end up in jail and be forced to defend themselves in court against 'baseless charges.'

'You don't know if they have an ax to grind or if it's a neighborhood squabble, and then somebody gets arrested for it,' Deters said. 'My feeling is, before someone is subjected to a physical arrest, someone in law enforcement should look at it and sign off on it.'  Officials at the Hamilton County Clerk of Courts office, which issues the arrest warrants, say they changed their policy on the complaints Jan. 14, a move they say came after months of discussion and about one week after The Enquirer requested public records about the system.  They say the previous warrant policy, which had been in place for at least a decade, was legal. But they now will require a judge or prosecutor to sign off on the complaints before a warrant is issued.

'This is just better procedure,' said John Williams, the county's deputy clerk. 'We want cases that are appropriately investigated to be filed with this office. It all relates back to having some level of investigation before it comes to us.'

An Enquirer review of the clerk's records shows that hundreds of cases were filed under the old system in the past six months, and that dozens of them are still pending in Hamilton County Municipal Court. Several municipal court judges have thrown out charges based on citizen complaints after concluding they violate the 2006 law that requires a prosecutor, judge or magistrate to review them. The purpose of the law is to ensure 'probable cause' exists to justify an arrest and there is enough evidence to go ahead with criminal prosecution.

'The law was changed so private citizens couldn't cause a person to be arrested without a proper review,' said Municipal Court Judge Brad Greenberg. 'Absolutely, it concerns me. Your concern is that someone has been charged or arrested with a crime and there is no basis for it.'

Christo Lassiter, a University of Cincinnati law professor, said that happened to him in 2008 when he spent several hours on Thanksgiving Day in jail because his ex-girlfriend, Devon Dullaghan, filed a citizen complaint that accused him of violating their child-custody agreement.Dullaghan said she filed the complaint because Lassiter violated the agreement many times and she felt she had no other choice. Lassiter blamed Dullaghan for the dispute and said the 'interference with custody' charge should never have been filed because he has custody of their 3-year-old daughter. But because there was no review by a judge or a magistrate, he said, none of that information came out until he faced a criminal trial that threatened his reputation and career. 'In this system, until you get to trial, you have no way to get anyone to say, 'Let's take a look at this.' It's ridiculous,' said Lassiter, who last month sued the clerk's office and other county officials over the citizen complaint system. 'Any citizen who has a personal gripe could get an arrest warrant.' Greenberg, the judge in Lassiter's case, dismissed the charge last year after concluding it was without merit. 'I find absolutely no shred of evidence of any criminal behavior here,' Greenberg said at the time. 'In fact, I think it's outrageous that the criminal justice system would be used as a weapon between parents in a custody dispute.'

'Not a lot of evidence' As in Lassiter's case, most citizen complaints filed with the clerk's office start with a 'citizen referral'  from a police officer.

Referrals, once widely used throughout the county, gave police another option when dealing with a citizen who complained about being the victim of a misdemeanor crime. If the officer did not witness the alleged crime and didn't have enough evidence to make an arrest, he or she could refer the person to the clerk's office to fill out a complaint. Cases typically involved feuding neighbors or couples accusing each other of harassment, petty theft, custody violations or vandalism.  'Officers get called to a lot of this stuff,' said Steve Barnett, spokesman for Hamilton County Sheriff Simon Leis, whose deputies stopped handing out citizen referrals last year. 'It's he said/she said. There's not a lot of evidence'"
_____________________________
Wow, talk about practicing law without a license, court clerks are NOT LAWYERS!  How in God's name is the authority to issue arrest warrants being issued on the legal determination of "probable cause by court clerks?"  Has Ohio lost it's collective mind?  Once again we are at that intersection of personal liberty and "small law," that seems so trivial but underlies the respect that citizens in their local communities have for the jsutice system and police. 

Uh, Supreme Court of Ohio, here's one for you.

Natural Death at Age 94, for Nation's Oldest Death Row Inmate

Associated Press reporter Bob Christie has this account  of the death of Leroy Nash, of natural casues on Arizona's Death Row.  I caught the story at the Salt Lake City Tribune website, because Nash was a Utahn, and it was news in Utah.  The picture is from an old file photo of an arrest in 1947 for the shooting of a Conneticut police officer.  The following is an excerpt from Bob Christie's story: 

"Viva Leroy Nash died late Friday [he was 94] at the state's prison complex in Florence, said an Arizona Department of Corrections spokesman.  Nash was still officially on death row, but spokesman Barrett Marson said Sunday he did not know if Nash died in his cell or in a medical facility at the prison.  Nash had been imprisoned almost continuously since he was 15, said one of his appellate attorneys, Thomas Phalen. In many ways, Nash was a throwback to the Old West, using words like 'bushwhacked' in conversation that had long been lost from everyday use.  'He was born in 1915 and he was sent to prison in 1930,' Phalen said. 'Think about it -- he had 15 years of life in southern Utah, at a time when Utah and Arizona was the wild, wild West -- and he went to prison in 1930, and he remained in prison for the next 80 years, more or less.'
Nash had suffered a series of heart attacks, the most recent early this month. His jailers recently removed him from the death row cell block on their own initiative because he was so mentally unfit, Phalen said.   At the time of Nash's death, state prosecutors were appealing a federal appeals court ruling to the U.S. Supreme Court that concluded he might not be competent [to participate in his death row appellate process.]Phalen said his research shows that Nash grew up in southern Utah and was sent to the federal prison in Leavenworth, Kan., in 1930 for an armed robbery.

He spent 25 years in prison for shooting a Connecticut police officer in 1947. In 1977, Nash was sentenced to two consecutive life sentences for a robbery and murder in Salt Lake City but escaped from a prison work crew in October 1982.  Three weeks later, on Nov. 3, 1982, Nash went into a coin shop in Phoenix and demanded money from employee Greggory West.   Nash shot West three times, killing him. Another employee was in the line of fire but was not hit, according to the corrections department. As Nash ran away, a nearby shop owner pointed a gun at him and told him to stop. Nash grabbed the weapon and the two men struggled over it until police arrived and arrested him.   He was convicted of first-degree murder, armed robbery, aggravated assault and theft, and sentenced to death in 1983."
______________________________________
Defense attorney, Phalen is quoted at the conclusion of the article as saying his heart goes out to Nash's victims, but that he celebrated the fact that Nash, an "old Cowboy," was not killed by the state of Arizona.
The account of Nash's death reminds me that Dahlia Lithwick reviewed David Dow's book the Autobiography of an Execution in the Sunday New York Times.  I linked to Terry Gross' Fresh Air interview of Dow, here on Bad Lawyer within the last week.  As always, Dahlia Lithwick brings her own special insight to the death penalty debate.

How We Present Ourselves

My friend, former tax-denier, rightwing Chuck has been sending me links to the story of Dr. Yazeed Essa (pic, smirking), a Lebanese-national and former Cleveland area physician, who murdered his wife by putting cyanide in her calcium supplement pills, according to prosecutors.

After poisoning his wife, Dr. Essa fled to Lebanon which does not have an extradition treaty with the United States.  Interpol and the FBI waited, Essa who never stopped his emails--(thus Dr. Essa was always in the sights of the authorities) to the relatives around the world.  Eventually Essa blundered by traveling to Cyprus to have a sexual assignation.  The Cypriot police took him into custody and he's been on trial in Cleveland this last month. 

The link is to Cleveland.com, the website of the Plain Dealer, Dr. Essa's story is as good as any pulpy detective story.  Even if it turns out that Dr. Essa didn't kill his wife (sure) he's the sourt of guy who gives your ordinary philandering piece of shit husband, a good name.  When you look up narcissism at Merriam Wesbter, Essa's picture should be illustration "1."

His family and friends are pretty nasty tools as well.  The efforts of friends and family to cover and protect this worthless character, reached novelistic proportions.  In the Essa billiard's room at the time of Mrs. Essa's burial, there were jokes among the boys.  The doctor and his brother planned to blame one of his girlfriends for the murder--hell, since the defense case hasn't  happened yet, that may still happen.  If murder cases interest you keep your eye on this one.

But I didn't plan to tell you about the Essa case.  I don't care about Dr. Essa, but my pal Chuck pointed out something to me this morning at the shrine to coffee, that made me rethink.  One of Dr. Essa's many "mistresses" or ex-girlfriends testified,yesterday.  Chuck noticed something in the reports of the testimony of Madeline Michelle, the mistress, that was noteworthy.  It's how she tries to present herself as a "good person."  This is from the Plain Dealer coverage of her testimony:

"Madeline said she drove home that night, troubled and guilt-ridden for having done what she knew to be wrong. But the following morning, she awoke to find the first of many weekly flower deliveries from Essa -– a dozen red roses, with a note that simply said, 'Smile.'

Essa invited Madeline to dinner in the days that followed, and Madeline accepted, though not without guilt.

'I chose to because of the way I felt, the way the relationship made me feel,' she said. 'I had never had a man treat me the way he did -- with words, gestures, physically -- up to that point in my life. It was something I had never had in my previous relationships. Men never seemed to be that giving… He was attentive to me, loving towards me and wanted to be with me.'

The couple starting rendezvousing every Wednesday night at Madeline’s Cuyahoga Falls apartment for conversation, company and sex, she said. But Madeline had her reservations about the relationship and began to pull away, she said. Essa turned up the charm, however, and won her back with flowers and sweet messages."
___________________
There's more of this sort of self-justification that permeates in Madeline Michelle's narrative of her relationship with this bad doctor.

I personally strongly relate to Madeline Michelle, I suspect if we are honest with ourselves most of us do.  Not that we would do what she did; not that we would get into a relationship with a person like this monster.  But if you are at all, like the Bad Lawyer, you have done things or failed to do things that you regret.  When forced to to relate that which we did or failed to do we justify, we rationalize, we reach for explanations and rationalizations.  How can we explain that we were intimate with a monsterous person, how is it that we failed to do this, or that we did that objectively rotten action?  We want, we need to tell our story, to say that I am a good person.

You see, I am a Bad Lawyer, but I am a good person.  But maybe I'm not.  I wanted to be a good lawyer, I wanted to be a good lawyer and a good person.  I intended to be a good lawyer, but maybe I wasn't a good person--then again I may have it backwards.  I feel rotten.  Sometimes, just looking at all this dark matter, makes me feel pretty dark.   No wonder we proclaim our good intentions in hindsight, how else can we live with ourselves.

Child Porn--Even the Police Do It

The Bakersfield.com website has this report ont he arrest of a Bakersfield Police officer snared in a chld porn sting.  This is from the report by Jason Kotowski:

"A Bakersfield police officer who admitted to engaging in online chats describing rape and murder fantasies involving children was arrested by the FBI Friday on a criminal complaint alleging possession and receipt of child pornography, detectives said in the criminal complaint.Christopher Kent Bowersox, 38, was removed from duty and placed on administrative leave when the allegations first surfaced, and he resigned earlier this week, a Bakersfield Police Department news release said. Bowersox had been a detective in the department and worked there since 2002."

[. . . ]On Nov. 6, 2009, Bakersfield police served a search warrant at Bowersox's residence, according to the criminal complaint. Two computers and two external hard drives were seized as evidence, and detectives found digital images and digital video containing child pornography, the complaint filed in federal court saidThere were also five digital images of what appeared to be surveillance photographs of students on the Bakersfield High School campus, the criminal complaint said.

Detectives interviewed Bowersox, who told them he had a Yahoo! account with the username 'cbowersox' and he used the name 'Colby' as his identity on the Internet, the criminal complaint said. It also says Bowersox 'reluctantly described' sharing fantasies with others in online chat rooms about 'things between men and boys and violence between men and boys.'"
______________________________________
I made the claim, last week that even law enforcemnt get caught in this crime.  I knew I would be able to show you anecdotal evidence (I see news accounts regularly) without looking very hard.  This story came in the ordinary course of looking at local websites, not a search.

Overheard In Court: New Website

I stole this anecdote from a website I came across this week for the first time, which has some clever submissions allegedly overheard in court, in fact that is the name of the blawg, Overheard In Court.

Mid-trial hearing stemming from late notice of witness changing testimony:

Defense Atty: Judge, this started way back at the beginning of this case with lack of notice from the prosecutor. They planted the seeds, in the beginning, and now it’s sprouting, and we need…

Judge: We need to examine all the leaves, right?

Defense Atty: Judge, we need to examine the whole arboretum!

US Atty: Your honor, the whole arboretum was in the indictment.

Judge: The prosecutor is not impressed with your arboretum metaphor, Mr. Jones.

Defense Atty: Well, that’s ’cause he’s not from Cincinnati, Judge. We’re more botanical in our orientation in Cincinnati.

Keep Your Hands Off My Bicycle!

The LA Times is reporting on the uptick in bicycle thefts, and the rise of vigilante justice in response to the crime wave.  The picture at the left from the LAT is the LA police impound warehouse. The following is from Richard Winton's report:

Although crime across L.A. is dropping, there is one glaring exception: bicycle thefts, which rose 29% last year. Nearly 2,000 bikes were reported stolen last year -- and authorities believe the actual number of thefts was much higher because so many people don’t report stolen bikes.

LAPD detectives believe the increase is due in part to more people using bikes to get around in some neighborhoods. A Times analysis found the USC campus, downtown L.A. and Venice to be hot spots for bike thefts.  Detectives recently broke up a bicycle theft ring and nabbed two men who swiped bikes downtown and sold them on Craigslist. At the motel of one of the alleged thieves, they said they found bolt cutters, hacksaws and a Mercedes-Benz equipped with a bike rack.

Some bike messengers last month took justice into their own hands when they caught two suspected thieves, teenage boys who attended a local Catholic high school. According to police, the messengers stripped down the teens to their boxer shorts before taking their cellphones, backpacks and clothes. 'They meted out street justice. We don’t condone street justice. They never threatened them. But they made it clear: don’t mess with another person’s property,' Los Angeles Police Lt. Paul Vernon said. 'This incident and the arrests are the tip of the iceberg when comes to people stealing bicycles.'   Vernon said the two boys told police they were robbed by about 20 men on bicycles at 6th Street and Grand Avenue about 3 p.m. on Jan. 12. Investigators said they cannot prove the boys were stealing bikes and continue to look for the assailants.  Still, the incident has been the talk of the downtown biking world. 'There wasn’t any violence. ... They were stripped of their clothes and sent home,' said bike messenger Douglas Forrest, who says the action was the talk of various bike shops and collectives.

In the downtown area, the number of bikes reported stolen increased last year by 57% -- and cyclists have noticed. 'They’ll take anything they can get these days. It has gotten really bad.' Forrest said.
Downtown, bicycles are most likely to be stolen between noon and 6 p.m. and Wednesdays are the hottest days for theft, according to an LAPD analysis.
__________________________________________
It's interesting that this catergory of crime has experienced an increase.  As I've mentioned many times on Bad Lawyer, the Bad Lawyer is a cyclist and one of the inspirations for this Blawg, was the cultural criticism of Bike Snob a NYC cyclist/humorist who writes a M-F blog of all things cycling, fashion, hipsterism, art, and excess.  One of the recurring themes of BSNYC is the "curating" of bicycles by their owners, particularly the courier/messenger bicyclistas.  For this class of bicyclists the challenge of trying to make a living using a bicycle is complicated by the need to secure the bicycle and its component parts, especially the wheels.  I can understand the frustration and impotence they feel at being victimized as easily as they are in places like LA, NYC and major urban areas. 

Excellent straight ahead coverage of this scene can always be found at the "bible" of cycling, VeloNews which also has an superb website.  Velo News is a tremendous resource of cycling advocacy.

Disbarred Attorney, Just Keeps On Stealin'

Aisling Swift's article in the Naples News website gives us another example of why the Disciplinary authorites do all that they can do to shut down the disbarred attorney-class.  In Gary Gramer, we have a disbarred New York lawyer who pled guilty to stealing a little client money.  So what does Gramer do?

Why he takes his show on the road to the sunshine state, where he continues to practice law despite fugitive warrants and the NY disciplinary proceedings.  Oh, and he wasn't hiding, he actually had an office and multiple pending civil actions. 

When I got out of law school years ago, a lot of guys took the OurState bar, and promptly took the Florida bar, so they could "write off their Florida vacations," somone out there, please explain that one to me?  For those of us east of the Mississippi, Florida bar registration as your second state of admission was not an uncommon phenomena.  My guess is Gramer was one of those guys. 

It's Criminal How We Treat Our Strippers!

Masslive.com has this report on the strippers of Springfield, Mass. getting hosed in the wage and hour department.  One of the smartest attorneys I have ever known is a whiz at this "wage and hour" stuff, and he is especially adept at seeing through the games employers play to put workers in "exempt" categories to avoid operation of the provisions of the law which is designed to give workers a fair living wage.  The so-called "independent contractor" is the gold standard for screwing over the employees. 

The following is from Patrick Johnson's article:

"The suit in Springfield, filed by three strippers, two bartenders and two disc jockeys against Mardi Gras Entertainment Inc., and its owners James and Helen Santaniello, of Longmeadow, and Anthony Santaniello, of Springfield, alleges management paid them no salaries, denying them benefits including the state’s minimum wage of $2.63 per hour for employees who also receive tips and overtime. It also charges the clubs required the dancers to pay a $40 to $100 fee for each shift.

A class-action suit filed by exotic dancers over what they say are unfair labor practices at the Mardi Gras and four other area strip clubs parallels a [previous] suit filed by dancers earlier this year against a club in the city of Chelsea, the lawyer for the Springfield area dancers said Friday.  Tod A. Cochran, lawyer with the Boston law firm of Pyle Rome Ehrenberg, went so far as to say the two cases are nearly identical.  “They are not different in any important way,” he said.

The Chelsea case, filed against King Arthur’s Lounge, involves dancers who said the club classified them as independent contractors, rather than employees, and as such denied them minimum wage and other benefits, charged them a $35 fee per shift and kept $10 of every $30 they received for private dances.

In August, Suffolk Superior Court Justice Frances A. McIntyre ruled the management of King Arthur’s erroneously classified the dancers as independent contractors. The ruling allows the class action suit to proceed and opened the door for as many as 70 women who danced at the club to seek thousands in damages for lost wages.  Since then, numerous similar suits have been filed against strip clubs across the state.  The suit in Springfield, filed by three strippers, two bartenders and two disc jockeys against Mardi Gras Entertainment Inc., and its owners James and Helen Santaniello, of Longmeadow, and Anthony Santaniello, of Springfield, alleges management paid them no salaries, denying them benefits including the state’s minimum wage of $2.63 per hour for employees who also receive tips and overtime. It also charges the clubs required the dancers to pay a $40 to $100 fee for each shift.

Mardi Gras Entertainment Inc., since renamed The Worthington Shops, operates five strip clubs, the Mardi Gras, Lace, Fifth Alarm and Center Stage in Springfield and Anthony’s in South Hadley.

In Massachusetts, a worker is considered an employee unless three conditions are met. The worker must be free from control and direction in the performance of a service, the service is done outside the usual course of business of the employer, and the worker is engaged in an independently established trade that is the same as the service performed.   Massachusetts law places the burden of proof on the employer, and failure to any one of the three conditions is sufficient to establish employment.  In the Chelsea case, Judge McIntyre determined King Arthur’s, on all three conditions, “mis-classified its dancers as independent contractors and not employees.”

Boston lawyer Barry Miller, representing the Worthington Shops, said he could say little about the case and was not interested in a war of words with the lawyer for the other side.  “I’m not inclined to respond to out of court from Mr. Cochran.”   The suit has been filed in Hampden Superior Court, and Miller said the Worthington Shops now have until March 3 to file a response with the court. After that, a determination will be made on whether it has merit to proceed.   Miller said he is familiar with the King Arthur ruling and suggested the two cases are not nearly as similar as Cochrane suggest.   “We believe the situation at the Mardi Gras is different from the situation at King Arthur’s,” he said. He declined to elaborate. Cochrane said if the class suit is allowed to continue, it could be extended beyond the seven people listed as plaintiffs to several hundred people who have worked in the five clubs during the past three years.

“The customers are not just coming there to drink beer, they’re coming to see beautiful women dance in the nude,” he said. “To not pay them (the dancers) for their work is unfair..”  Meanwhile some patrons of clubs in downtown Springfield said they did not know very much about the lawsuit and didn’t care to comment.  An older patron at the Mardi Gras did express sympathy for the dancers.  “I’ve been coming to these places for a lot of years and I can’t believe what they have to do for a dollar,” said the man who declined to give his name.   Another patron, smoking a cigarette outside the 5th Alarm on Worthington Street, said in relation to the suit, “I’m only here to see the girls. I don’t really care.”
_____________________________________________
I really love the patron comments! 

Patrick Johnson did a yeoman's job of laying out the basic issue, these strip club operators are saying in effect that dancers are "exempt" from wage and hour protections because they are "independent contractors."  The controlling analysis in "independent contractor" claims is the degree to which the "employer" exercised "control."  "Control" can be defined by many differrent elements of the relationship but primarily relates to who determines and controls the times, tools and tasks to be performed.

For these women to be independent contractors you would have to believe that these dancers were entertainers, with their own costume departments, who are able to choosing the terms, conditions and times of their performances.  That the clubs exist as mere concert like venues for these artists to perform their acts.  Uh, huh. 

My dear friend, retired tax denier, rightwing Chuck, knew a bunch of these Strip club operators.  If you want to get quickly depreseed about a dirty business exploiting young women, talk to Chuck.  According to Chuck the dirtbags that usually operate these clubs are as a rule pretty disgusting characters.  These (usually) young women are often drug dependent, debased, and degraded by "businessmen" who are not much more than pimps. 

I hope Mr. Cochran and his colleagues nail these goons, er businessment.

Whistle-Blowing Nurse Acquitted by Texas Jury!

Here at Bad Lawyer we talked about Anne Mitchell the Texas registered nurse who went on trial Monday in the most malicious prosecution to come down the pike in a long, long time.  Nurse Mitchell's crime, reporting shoddy medical practices of a physician at the Winkler County Memorial Hospital where she worked with a Dr. Rolando G. Arafiles, Jr. who happened to be pals with the local sheriff, hence the charges.  Well I am relieved to report that the ABA Journal is reporting that a Texas jury took less than one hour following a 4 day trial to acquit Nurse Mitchell. 

Here's hoping nurse Mitchell sues the hell out of the local sheriff and his quack pal

Memphis Lawyer Steals from Children's Trust Funds to Gamble His Career Away

James Hoots, (pic) a Memphis, Tennessee bad lawyer who specializes in Probate matters was stealing from a children's trust fund so he could feed his gambling addiction according to the Memphis Commerical Appeal.  This is from the CA newsite story:  James M. Hoots has been charged with stealing some $76,000 from a children's trust fund and blowing it at the Tunica casinos.


Hoots . . . has been licensed in Tennessee since 1990.  The 56-year-old attorney was booked into the Shelby County Jail on Friday and is scheduled to be in General Sessions Criminal Court on Monday.  He was to be released on his own recognizance.  Authorities received a complaint several months ago that Hoots had taken money from the children's trust fund without permission.

The administrator of the estate, Lana Scott, told detectives that when she confronted Hoots about the missing money, he told her he had a gambling problem and had lost it.  'I took the children's money and took it to Tunica to try to make more money,' Scott said Hoots told her in November.  She said that on Nov. 18, Hoots gave her a promissory note, pledging to pay the children $76,206.10.  The additional $206.10 was for interest normally earned on probate accounts, according to an affidavit.  He is charged with theft of property over $60,000, which carries a standard sentence of eight to 12 years in prison.
__________________________________
Casino investment strategies tend not to "make more money" as Mr. Hoots claims to have believed.