Sunday, February 28, 2010

Do Not Photograph the Jury While While They Are Trying an Aggravated Murder Case

This story comes by way of Cleveland.com, the website of the Cleveland Plain Dealer, two men were watching one of the men's cousin who was on trial in a Cuyahoga County Common Pleas courtroom for gunning down another man outside of boarding house on Cleveland's eastside.  The two clowns, in the pictures--decided it would make sense to hold "flip" video cameras up in the courtroom, pointed at the jurors.  These genuises, so terrified the jurors that they triggered a mistrial.  The Judge ordered their arrest and the two are off to prison themselves for "juror intimidation."

Saturday, February 27, 2010

Catholicism, Confession,and the Bad Lawyer

I've talked about being Catholic, and the conflicts my Catholicism created for me, particularly when I became a part of the nascent reform movement attacking clergy sex abuse.

By birth I'm an "in-between" Roman Catholic.  My mother was an almost-novitiate/a graduate of a convent girls Catholic High School in Kokomo, Indiana; my father was a low-church Episcopalian.  My mother held my baptisim at the cathedral in Indianapolis and some of my earliest memories date from the late 1950s.  I recall being with my mother in what seemed an enormous, echoing church, Latin mass, and the penquins in procession.  Throughout my life when crises became manifest--I say manifest, because my professional career has always been crisis; I've never ceased seeking solace at mass.  After I quit drinking in the my early 30s, I returned to church and was confirmed.  At one point I actually sang and played guitar in a folk mass with my parish--at least until my work on behalf of clergy sex abuse victims put me at odds (in my mind) with the Pastor.

I have returned to my roots to confess on many occasions, and with this recent lack of sleep I've felt a real need to get relief.  Confession is a gift, a sacramental gift available to all Catholics. 

This morning I awoke at 4 am, my heart racing, nearly out of my mind.  I was able to take some prescription medication that I have for anxiety and get another 3 hours of sleep, oversleeping by an hour.  When I got back from coffee, I did a meditation that described the specific act of bridging myself to a future place beyond this life crisis.  This meditation instructed me to take a certain, specific act. I did this with no resultant solutions, but I felt better for doing the act. 

You see I am confronting what the Kabbalahists call my Tikkune--my life issue.  The reason my soul was sent here.  Go ahead and laugh, but have you ever noticed that in your own life or in the lives of those you love or those who you are close to,  people continue to make the same mistake, over and over?  People struggle with their life issue--that is, the problem in their life that needs resolution--it may be as Cardinal Newman said, your life has a purpose.   You may not learn that purpose it in this life, but in the next God will tell you, because there is always a reason for your life.

I went to confession, at 11 AM, and it was the longest, most intense and tearful confession I've ever experienced.  Poor priest!  But a very good priest who heard me out--in as few possible words as I could compose, --I told him the story, the same one I tell on this blawg.  I told him about my fears for my family, I owned my "corrupt and criminal" soul.  I told him that as I prayed at the Mary statute outside the confessional where I have prayed many times, before, I noticed for the first time that the Blessed Virgin stands looking down her hands gesturing downward with her left foot on a serpent, an apple in its' mouth.  I told Father that it feels like that serpent is in my heart.  As I confessed, I owned every sin that I could find in this dark heart of mine, and Father blessed me and forgave me.  I prayed my penance.

When I first drove downtown I passed through the warehouse district and I noticed a Psychic's storefornt which has been there for years.  I thought to myself, that must be a very good psychic, because that storefront has been there for a long time. After I went to confession, I thought to myself, Father must moonlight at that storefront,  because he read my psyche.  Father said I am struggling with a pattern that occurs and recurs again and again as part of my family legacy.  Father said, I have a chance to put an end to that curse with my life actions--Father sounds like he was reading my Tikunne.  He was offering peace of mind.  I believe him, I'm buying--I want that peace of mind.

There are many things about the Catholic church in the world that are heartbreaking, as with the law, as with academia, and business.  Today I was reading in the New York Times, about a Catholic theologian who offers the opinion that torture can be morally justified under Catholic teaching.  The rejoinder of both liberal and conservative Catholic critics of this stance is is that torture may be a "necessary evil," in this dangerous world, but becasue something may seem necessary, does not cease to make it "evil."  You stand convicted in the eyes of God, regardless of your intent.  But, you can look at the dark matter and forget the light, forget the stars and the heavens and human good. 

Father shared his humanity, and mine with me.  I am the angry and judgmental Bad Lawyer, but I pray that we may all find a place of love and mercy and grace.

I Fell Into a Burning Ring of Fire

Johnny Cash would have been 78, Friday. 
Fresh Air/NPR played an archive interview with the late-Cash that looked at his later recordings for Rick Rubin's American Records.  I know, you're saying to yourself, Bad Lawyer, this is a blawg not a blog; yep.  I love real country music.  And I loved Johnny Cash, June Carter, Roseanne Cash, Carlene Carter, the Carter family.  They sang/sing my life. 

I have fallen in a Burning Ring of Fire.  Oh, it's a fire ring of my own making, but it burns, burns, burns. 

These last two weeks have been the most stressful of my life and yet as my friend Pat reminded me, not on the scale of suffering like losing a spouse or a child.  I go to work at an office job that I'm grateful to work at which is far more than what I deserve; thanks to the beneficience of my "blood" brother in the law.  I walk into the building where I had my offices for 25 years and I run into friends.  And when I tell them my story they avert their eyes in embarassment for me.  I feel their pain, and fear.  It's like dying, professionally, but still walking around--I'm an apparition.  And even now, the worst is not over.  I deal daily with continuing legal peril from my tax nightmares.

Hanging on, is tough.  Johnny Cash hung on, and did some great late work that still amazes and moves me.  I may not be able to return to my former position in this professional world, in fact that outcome is a near certainty, and I may pay some further terrible legal price for failure--but, I hope to hang on.  Hang on to my dignity, return to some sanity and transcend.    Maybe there is some late work to do?

Friday, February 26, 2010

Judge Pulls Gun, Gets Reprimand

That's right folks, in Utah, if the Judge pulls a gun on his Bailiff there might just be a consequence, in the case of Judge Gary Sampson (pic) unholsering his gun in the courtroom and pointing it at his bailiff, as a a-ha-joke got him a reprimand from the Utah Supreme Court, according to the Salt Lake City Tribune.  This is from their report of the incident:

"Once upon a time, it might have been normal for a Western judge to draw a gun.  But those judges probably didn't point their weapon at a bailiff like Lehi Justice Court Judge Garry Sampson who apparently meant the gun-pointing as a joke. A state commission and a Utah Supreme Court justice took the episode seriously and reprimanded Sampson in December.

Sampson did not return a Salt Lake Tribune phone call to his home seeking comment. A brief report on the conduct commission Web site said Sampson "'accepts full responsibility for his actions and is extremely remorseful.'

According to the report, on March 30 a bailiff  'removed a lid from a bottle of water and threatened to throw water' on Sampson. Sampson removed his gun from its holster and pointed it at the bailiff  'for several seconds."' The report says Sampson acted 'in a joking manner.' But the bailiff and a victim's advocate in the courtroom were alarmed and feared Sampson might accidently fire. Court was not in session at the time.  The conduct commission investigated and recommended the reprimand. Utah Supreme Court Chief Justice Christine Durham agreed and signed the formal letter.  Public discipline against a Utah judge is rare and is applied at the rate of about one judge per year. Sampson has served as Lehi's justice court judge since 2004, according to the report, and he has no other record of misconduct. Justice court judges are appointed by city."

Maricopa County Prosecutor is Shut Down!

I've blawged quite a bit about the circus that is Maricopa County here at Bad Lawyer.   News came in late Wednesay that the prosecutor Maricopa County Attorney, Andrew Thomas, the political ally of America's toughest Sheriff, Sheriff Joe Arpaio--has been shut down by a visiting Judge and disqualified from prosecuting his political opponents in Maricopa County.  Laundry list indictments filed against county representatives were dismissed and Thomas was read the riot act, according to AZCentral.  It's good news for the citizens of Maricopa County that outside the county, sane adults still work as public servants.

Thursday, February 25, 2010

Serial Killer Alcala Convicted

Alleged genuis, serial killer Rodney Acala who we reported on here on Bad Lawyer in January was convicted, today, of multiple murders by a Santa Ana jury following a trial at which Alcala represented himself.  

As you will recall the major focus of the trial was the disappearance and murder of pre-teen, Robin Samsoe whose gold ball earrings turned up in Alcala's possession.  Once again we have the fool for a lawyer and fool for a client--Alcala who was previously on California's deathrow is in all likelihood headed back.  Await his appeal for "ineffective assistance" of counsel.

Wrongful Imprsionment, On False Allegations, Lawyer with Bad Hat

Remember the case of the construction worker who  was falsely accused of gang rape and then exonerated when the accuser came forward to recant?  You can read the original account at the link, The woman, Bunny Pequero (pic with her lawyer who's weearing a stupid hat) was sentenced Tuesday to up to three years behind bars, herself, saying she was "riven with remorse for sending an innocent man to prison."

According to the Associated Press report, "Biurny Peguero, 27, pleaded guilty in December to perjury, admitting she made up the September 2005 incident that unjustly put construction worker William McCaffrey in jail and prison for nearly four years. A judge overturned his rape conviction in December, with new DNA evidence also playing a role.  'I question myself every day as to how I could have done this,' Peguero told a Manhattan state court judge.

Peguero originally said McCaffrey was the ringleader among three men who raped her at knifepoint after luring her into their car. She met them after a night out at a Manhattan nightclub with female friends."

This was a particularly strange case because there was no reason for the accusation, and the consequence to Mr. McCaffery was awful.

Judge Cronin

The Youngstown Vindicator has the story of Judge Cronin who was a Youngstown-area Common Pleas judge.  She took an $18,000 loan from a wealthy Youngstown family to pay gambling debts while she was sitting repeatedly on cases, the Cafaro famly construction and other businesses had in front of her as a Judge.  Of course the other side never knew any of this.

The judicial faud is going to cost Judge Cronin 7 years behind bars.  The loan in itself was ok, the failure to disclose the loan and the subsequent adjudication of cases of cases for the Cafaro constituted faud.

Wednesday, February 24, 2010

The Judge Has Said This Is the Deal, You Will Take the Deal

The Fort Worth Star-Telegram has this eye-popping story of Judge Bob Gill ([pic), the Tarrant County, Texas Judge who handled probation revocation hearings like Mickey-Ds dispenses burgers. 

Gill who retired in 2007 "disposed" of almost 8,000 probation violation cases in 14 years on bench dwarfing the caseload of his peers--all without the necessity of the Prosecutor's office participating in the bargaining.  Get this, if you were indigent, in front of Judge Gill on a probation violation, Gill would appoint your attorney, tell you what the deal was, and if you didn't like the deal, then too bad, you would do a lot more time in jail.  Neither he, the court-appointed attorney, (had had a favorite), or the prosecutor had a problem with this unconstitutional game of judicial solitaire.  In fact after Gill retired from the bench his buddies in the prosecutor's office made him the chief deputy. 

The story came out because some poor crazy woman sought a writ of habeus corpus and her new counsel wanted to know why this woman's mental health wasn't put in to issue as it related to the probation violation mattter in front of Judge Gill particularly when she tried to hang herself in the jail cell.  According to Danny Robbins Associated Press article:

 "An attorney who regularly represented indigent probationers facing revocation in Gill's court has testified that the jud ge personally negotiated plea deals, a role normally reserved for prosecutors. Rejecting Gill's offer often meant a tougher sentence if he later heard the case and decided that a violation occurred, the attorney, William H. 'Bill' Ray, said under oath. 'In his court as opposed to other courts, there was no interaction with the prosecutors,' Ray testified. 'They didn't enter into the conversation unless it became a contested matter.' Ray, a well-known Fort Worth criminal defense attorney, testified at a hearing in federal court in May that was part of a case that has since been sealed. Documents from the case were obtained by the AP."

Ray was the favored litigator and made mucho bucks for essentially turning a blind eye to the Judge's antics. 

This is a scary tale of a Judge entirely losing his grip on what the role of a judge is;  Judge Gill was not a neutral and impartial referee, he was Monty Hall and his courtroom was Let's Make a Deal. 

Benjamin Thomas Field--Bad Prosecutor

I get a news feed from a website called Legal Profession blawg which had the report from the California Bar Association concerning the heavy discipline imposed on a career prosecutor, a 5 year suspension over "prosecutoria misconduct."  The opinion can be read at the link. I read it with a real sense of horror at both the actions of Benjamin Field and the sanctions imposed on this guy. 

Apparently in California, win-at-all-costs prosecutors can actually lose their licenses to practice law.  In OurState, in Texas, in alot of places around the country this guy would be elevated to the bench, not sanctioned.  

Reading the entire opinion you do find that he was nominated for a Judgeship at one point, and Mr. Field was basically well-regarded by a lot of lawyers who are defense attorneys and Judges.  But what Field did in 4 cases: withheld exculpatory evidence, defied court orders, made flagrantly improper closing arguments, and in one instance ordered a prohibited dental exam on a minor to prove a tenuous point--all resulted in convictions being reversed and the taxpayers and citizens of California bearing the brunt of the misconduct, let alone the criminal defendants who after all had certain rights under the US and California constitutions. 

Mr. Field was a public servant and he screwed up in at least 4 cases, significantly.  He should be disciplined--but 5 years!  Harsh?  As harsh as I've ever encountered for "prosecutorial misconduct" that didn't actually rise to the level of criminal conduct by the prosecutor.

Tuesday, February 23, 2010

Old Courthouses

Tom Barker, writing at the Southern (news for the southern tier of Illinois) website had a lovely article on old county courthouses and the problems associated with maintaining them.  Let me quote: 

"When the occasional construction of a new courthouse comes around, a county government is in love. Intoxicated with opportunity, county officials are like newlyweds, fully devoted to their newfound structural companion. Then, 20 years go by and the honeymoon is over. Eighty more years pass, and the relationship has turned to bickering, complaining and arguing over the remote.


But is the love still there?

Historic county courthouses have long remained architectural treasures for several Southern Illinois communities, as many standing today have been in use for more than a century. While longtime residents and history enthusiasts might not be able to imagine their towns without the landmark structures, the costs and hazards associated with maintaining the buildings aren't always ideal for county governments. The three-story courthouse in [Franklin County] has seen many changes since 1875, but some distinguishable features from the original design remain, including the original walnut staircases. .

The courthouse is a landmark and a historical centerpiece for Franklin County, . . . but 100-year-old buildings were not made for modern needs. Modern demands for public accessibility, communication and security just weren't on the minds of 19th century architects.  'It might have been an appropriate building for 1875, but, for the security concerns and needs of a county in 2010, it's just really lacking.' Gulley said he would like to think Franklin County offices will have a new administrative building in coming decades, and new construction has been considered, but there is no way the county could afford it.  Union County Courthouse in Jonesboro, much of which was built in 1857, is in last years as the chief administrative location for the county, as officials are moving forward with plans to construct a new courthouse and hope to be in the new building within the next five years.  Union County employees are looking forward to the new facilities with eager eyes, as the move will finally free the county of recurring repair costs and inconveniences caused by the 153-year-old structure.  'We're very excited," said Union County Board Chairman Randy Lambdin. "I have not talked to one employee that's not really, really excited about this project.'

Faulty heating and air conditioning systems, leaky roofs, limited storage space and dated electrical systems cause constant problems for the government. And then there's the safety and liability concerns of cramped corridors, asbestos and poor accessibility, especially in bad weather.  'There are problems with having a building that old and having sometimes 200 to 300 people going through that front door in a day,' Lambdin said. 'There's a lot of liability.' Despite the old courthouse's problems, the building is a landmark for Union County, he said. And while future plans for the building have yet to be determined, he would like to see it be preserved, if possible.

'I love history, and if there is a way, if some historical society can take it over, I would like to see it preserved,' he said.  Situations similar to Union County's can be found at more county courthouses in southernmost Illinois, as Johnson County Courthouse in Vienna still stands after 139 years of use and Pope County Courthouse in Golconda is in its 138th year of operation.

Ed Annable, president of Johnson County Historical Society, said the courthouse in Vienna, despite its structural shortcomings, is a landmark that will hopefully stand for many more years to come.  'It's always going to be there as a landmark,' Annable said. 'It's part of our heritage.'

Many of the Johnson County offices have been moved out of the courthouse into nearby buildings because of space limitations, and the courthouse is only used for court proceedings. The structure has been remodeled a few times in the past 100 years, but the courthouse still maintains its original architecture and appearance as built in 1871.

Annable said courthouses like Johnson County's were once the center for all community activities, saying in the 1800s and early 1900s, everybody went to the courthouse for everything.'All roads led directly to the courthouse,' he said.

Pope County Courthouse in Golconda was erected a year after Johnson County's, in 1872, and still retains the appearance it had 138 years ago. Necessary renovations have been made, as the second-floor courtroom has been remodeled and an elevator installed, but a few pieces of the past are still found in the building's original halls, including solid benches, large office counters and a spiraling staircase.

The courthouse has survived many natural disasters throughout its lifetime, including a catastrophic flood of the Ohio River in 1933, numerous earthquakes and a tornado in 2004. Some Southern Illinois courthouses don't have quite as many years behind them, and area residents can remember what it was like when the buildings were new.

Jackson County Courthouse in Murphysboro, a stone construction finished in 1929, still retains most of its original styling, including tile floors, marble stairs and a fa├žade reminiscent of early 20th century urbanism. 'When I was a kid, we used to go to the courthouse for everything,' said Mary 'Mickey' Korando, a Jackson County Board member. 'I have always loved that courthouse.'"
_____________________________
Barker's note on the "intoxication" of local officials at the prospect of building a new courthouse was pitch perfect--and often the cause of real tears and wailing and gnashing as we see from the Maricopa County--and Sheriff Joe Arpaio's racketeering allegations against those local county representatives.  And often these building projects DO result in corruption scandals with contractors bribing public officials, or minority contractor manipulations.  It can get ugly.

But Barker's discussion of the romance of the old courthouse should not be lost on us, either.  And I talked about this early in this blawg.  I may even have related the following story, years ago I traveled to Chattanooga with my then law partner to obtain the sworn statement of a medical expert.  My partner wondered how we were going to find a court reporter locally and I laughed and said, "easy" we go to the county courthouse, and look for a local law office where we will get a referral.  My partner said, well smart guy how do we find the county courthouse?  I'm sure after all these years she laughs at herself for the question.

The County Courthouse in America is as a rule, the most promiment and beautiful structure at the County Seat.  Abutting all county courthouses are the offices of local lawyers, as well as the services provided to local lawyers.  These structures are enormously beautiful and mysterious, exploring one is a great joy--or at least was pre-2001.  Not too long ago I was in a very famous small town that was also the county seat.  It's courthouse was nearly 200 years old, I went in to use the restroom, but the building had no waste plumbing!  The building's  restroom facilities had been graphed-on to the exterior of the building in the 1930s and those facilities had a separate means of ingress and egress.

While I love the romance of those old buildings, the buildings do present security hazards that can not be underestimated.  Moving prisoners in and out of old courthouses is an arduous process, not to be underestimated.  Escape and attempted escape is always a problem, and screening for persons who would commit a violent act in the courthouse has been a problem historically, in fact I think this fact finds its way into legal thriller plot points.

Bow-Tie Wearing Judge Gets 5 Year Suspension

The guy to the right, if Mobile, Alabama former Circuit Judge Herman Thomas.  Apparently Judge Thomas had a thing for paddling prisoners and other sorts of very strange and sexual stuff outside the presence of the inmates' lawyers.  He was indicted, prosecuted and ultimately acquitted of criminal behavior. 

The Alabama State Bar Association was not impressed by the acquittaly according to a report at AI.com which found clear evidence of misconduct.  At a minimum, even assuming the inmates who were whacked by the Judge were not credible witnesses at his criminal trial, the ovewhelming evidence of improper ex parte communications by the Judge with these inmates was satisfactory to put the Judge at considerable ethics peril. 

Well, Judge Thomas is nothing if not resilient, he is running for the State Senate, and reports are he is "very electable." 

By the way, this is the second bow-tie wearing pervy-lawyer we've covered at Bad Lawyer.   I point this out, because too many beknighted young lawyers gone down this tragic path, fashionwise.

Monday, February 22, 2010

Appellate Practice

The Michigan Supreme Court has been wracked by partisan divides over many issues as highlighted by last week's decision in a medical malpractice case reported by MLive.com.  We saw evidence of the open contempt of the Michigan justices for one another--in the Geoffrey Fieger decision from last year.  The new decison a 4-3 opinion dealing with procedural deadlines in medical malpractice cases also breaks along poitical party lines although one Republican justice crossing the partisan divide to side with the Democratic majority opinion.  Usually in these sorts of opinions the cliche` charge in the dissent accuses the majority of invading the province of the state legislature.  The response in "tort reform" cases is that the legislature has already invaded the province of the judiciary and the applicable constitutions to deprive the citizens of the equal protection of the laws, in the medical malpractice arena to throw up undeserved protections for certain classes of defendants against lawsuits from persons they injured. 

Likewise, Wisconsin's Supremes are dealing with the election of the guy in the picture, Justice Gableman who defeated a sitting justice, (Justice Louis Butler, Jr.) a singular act of the electorate in tossing a sitting justice that constitutes the first time in something like +40 years.  The election of Justice Gableman followed a lot of campaign money and television advertising characterized by alleged misrepresentations from both sides.  The problem for the Wisconsin Supreme Court, Gableman's advertsing (which you can see on You Tube) took on Justice Butler for a case the Justice handled as a public defender in the years before he became a Supreme Court Justice; and, the commercials implied that Justice Butler was soft on crime with the result that a child molester was freed to molest again.

Maybe you see, the problem, can Justice Gableman be trusted to be fair and impartial in cases and controversies involving criminal defendants?  The implication of his campaign for Justice Butler's job was that he would never vote to reverse a criminal conviction.  Cool, huh?  Not if you were wrongly convicted, not if you were innocent!

So the Wiscosins have been boxed into a partisan divide over how to deal with motions to disqualify Justice Gableman, which they dealt with last week by adopting a rule by a 4-3 vote holding that Justice Gableman can hear and vote on the criminal cases pending before the court. 

Now this all gets us back into the wisdom of election of judges a recurring theme of this blawg, but to some extent it raises another question--what is appellate law about and why would the voters toss out a good Justice based on misleading commercials?  Let's address the latter question first--voters should never reject a justice purely over an appellate decision they disagree with unless they have a reason to believe that the decision or opinion is corrupt or procured through bribery or the maybe the product of incompetence.  Voters can, of course, properly decide to vote out a justice for philosophical reasons but I'm always surprised that where a lay person views a disqualifying philosophy in one Judge, if they were the litigant the person they disagree with is usually precisely the Justice they would want to hear their case.  The appellate decisions are a thicket in any case, often maddenly so. 

You see, one appellate justice is not deciding the case before the court being afterall, just one vote among, in the case of the Wisconsin Supreme Court, seven. Appellate judges deal with controversies that are both fact-driven but policy-derived.  At the Supreme Court level in most jurisdictions the decision to hear an appeal may be discretionary and those Courts look for cases that present interesting or important public policy decisions.  Great appellate practioners learn the art of contouring their petitions to be heard in such a way as to catch the interest of this or that Justice.  It is an art form to be heard by an appellate court. 

So when voters do what was done to Justice Butler, toss his ass out because someone ran commercials that falsely portrayed him as unleashing child molesters on the populace, and elect someone to take his place who suggests that he will never fairly decide a criminal case brought before him--you have to ask:  what the hell!  Good luck with that Wisconsin.

Brilliant Essay

Bill Moyers and Michael Winship (senior writer for the Bill Moyers' Journal) have co-authored a brilliant essay on the Citizens United decision.  The Moyers-Winship essay is at the Huffington Post.  As you know I blawged about Citizens United at the time it was issued.  Moyers and Winship drive home more eloquently than I can the implications for corporate purchase of the justice system in the wake of the decision.   Don't miss it.

Sunday, February 21, 2010

Angry and Judgmental

If you had asked me as someone did today, what characteristics in another lawyer, judge or other person that most agitated me through the years, it would be the angry judgmental person, the irate finger pointer, the person who labeled and denounced.  But it's one of those terrific ironies, that, that is who I am.  That's who I struggled with as I raced along in my career, heedless to the log in my own eye.  I called this blawg the Bad Lawyer because in part I was mocking the judgment of me as a Bad Lawyer, but also in part because I fervently prayed and wished that I would gain insight in looking at "criminal under my own hat." 

It is said that more tears are shed over answered prayers than not, and so my wish has been answered.  For a long time now I've dealt with crippling anxiety and depression but nothing like the last few weeks since my struggles to attend to my unfiled and unpaid taxes have hammered home the disaster that I have caused myself personally and professional, and potentially my family.  I lay awake with my heart pounding, nearly out of my chest, and then I get up and work all day, only to lay awake again with at best snatches of sleep.  I'll try to sleep again, tonight.

I share this with you, in the event that you are not attending to something in your life because of fear and anxiety.  Deal with it now, young, good lawyers.  Deal with your small problems while they are still small, or your big problem while they are still big and not monstrous. 

I met a man tonight as I sat in the lobby of a hotel outside of a conference waiting for the blonde super lawyer.  Richard was a friendly guy maybe a few years younger than myself and he in the fewest words imagineable told me the story of his life.  He was a Puerto Rican kid growing up in a Irish neighborhood on the westside of OurCity.  He was insulted and harassed by neighbor kids, but he got through school and made it into the Air Force.  Honorably discharged after 4 years Richard beat around the streets and was hitting the bottle and smoke pretty heavily--then one day he robbed a gas station.  He was so mortified and ashamed when it occured to him what he had become, he turned himself in to the police.  Richard had a small son, a girlfriend and something of a life--but, he became a convicted felon and spent two and a half years in the penitentiary.  Since that time he has lived a pretty model life although his life and career opportunities are pretty circumscribed.  He works three jobs and supports 5 small kids.  He gave me more relief and empathy in the few minutes he shared with me than any single person has, and believe me I am the beneficiary of alot of love and caring.

Richard told me, "I am not the sum of the crime that I committed." 

I am the "criminal under my own hat" but I am not the sum of those acts and failures.  I would like to be remembered for correcting this legacy of anger and judgment, and anything else within my power to address.  To the extent that I share this with you, it is because it is the insight given to me.

Bad Poetry--That'll Get You Jailed

Johnny Logan Spencer, Jr. is not Ezra Pound.  I thought of Ezra Pound when I first saw this story and the mugshot of Mr. Spencer.  Like Pound, Spencer finds himself incarcerated for his words, in Pound's case the crazy and paranoid genuis was spewing propaganda from Italy during WWII for the axis powers.  In Johnny Logan Spencer, Jr.'s case his poem, the Sniper, posted on a neo-Nazi website got him arrested for threatening the President of the United States.  According to a report in the Lousiville Courier-Journal, the "poem" included the line "DIE negro DIE"--I know what you're thinking, poets so rarely use all-caps and it's refreshing to see this artist utilizing this ignored technique.  Threatening the president of the United States is a federal offense, no surprise there--it will get you 5 years in prison and a quarter-million dollar fine.

Now, maybe I'm guessing you're wondering how this "poem" constitutes anything other than wildly obnoxous, and odious free speech?  Yeah, me either.  I'd be surprised if this turns into a full-fledged prosecution. 

The story comes on the heels of reports that certain right wing ministers including Wiley Drake, pastor of First Southern Baptist Church in Buena Park, Calif., and former running mate of American Independent Party presidential candidate Alan Keyes, who told Fox News Radio that he's calling for "imprecatory prayers" asking God to kill the President! 

Wow!  We live in a violent culture, folks, and Louisville may have its poet laureate. 

Fake Cop, Busted by Real Cop


Wanna-be cops have always amused the Bad Lawyer and his pals at the 'bucks--and it's been the topic of conversation on more than one occasion here at Bad Lawyer, so you can imagine my delight when I encountered this delightful account at KC Crime Scene with a link to the original article at the KC Star.

Captain Rich Lockhart of the Kansas City Police rolled into a local charter school the other day and encountered a security guard dressed up as if he were a Kansas City Police officer.  I mean he was all uniformed and leathered-up but the colors weren't quite right, the weapon was wrong, Captain Lockhart suspected that Jeff A. Swanson was not who he said he was.  Sure and night follow day, he was a wanna-be cop!

The Kansas City Police confiscated his uniform, his badge, a police baton, pepper spray, KCPD  "collar brass" and .380-caliber sidearm.  Nice.

Saturday, February 20, 2010

Angels of Torture and Death

One of the stories that has astonished me, is the story of the lawyers at the Justice Department and the White House who ordered up and rationalized the torture of prisoners of war in violation of the Geneva Conventions.  The New York Times and others are reporting on the report that clears (now Judge) Jay Bybee (pic top) and (now UCLA law professor) John Yoo (pic bottom) of "ethics" violations for authoring a memorandum laying a legal foundation for the "water boarding" and other "stress" strategies used agasinst our prisoners of war.
These two are clebrities in conservative circles, in fact Professor Yoo got the 20 questions treatment by Deborah Solomon in the Sunday New York Times Magazine feature back in December, he's a rockstar!

I'm a Bad Lawyer, but I'm at a loss how any lawyer can rationalize in a legal memorandum a jurisprudential basis for harming another human being, even an "enemy" combatant.  There is no jurisprudence of torture, there is no jurisprudence for enhancing "stress" on human beings.  The logic, that these steps were necessary to "keep America safe in the days after 9/11" is a not a legal argument.  Lawyers consistent with their professional oaths and oaths of office saw fit to offer "legal opinions" that said in effect--flout the Geneva Conventions, violated their professional ethics and the oaths and promises they undertook when they became lawyers.  That a supervisor at the Justice Department in a supervisory role, said otherwise, letting them off the hook for ethics violations, doesn't change that fact.

Oh, let me deal with the "24 hour/ticking time bomb" scenario--which is the only rationale for torture.  Fine, torture away, but don't claim it was "legally"-based.  If you were right then "bravo" the country will hail you as a hero and your pardon and medal will be forthcoming.  You might even have a "necessity" defense available to you if I remember my criminal law correctly, but do not pretend that a foundation in law or logic necessitates a systematic legal rationale for clearly criminal acts.

You don't have to read deeply at the Bad Lawyer Blawg to realize that my soul is deeply troubled and has been for sometime by many things (mostly by my own failings) and by the Angels of torture and death.  I see them everwhere.  We, collectively and daily,see the consequences of the dark spirits in our violent society.  From the Alabama professor who takes a gun and kills her colleagues; or the Information Technology professional who enraged at the IRS flies his small plane into an Austin, Texas office building recreating his own personal 9/11; and,  to all the horrific local accounts of murder and violence especially among families.  In so many ways we have supplanted the values of love and respect for one another with attitudes and righteous anger.  We are bleeding away our humanity.  Who are the angels of torture and death?  We are.

When we rationalize hatred and killing, when we see the world as us versus them, when we resort to the gun and the bomb--the angels of torture and death are in the mirror.   Let's visualize the death of these angels.  That, I believe, will bring us to a more civilized place.

When Offering to Lay Pavement, Don't Offer to Lay Pipe!

This eye-opener comes by way of the Spartanburg Herald Jouranl website: 

"Billie Bobbie Harrison, 24, of 655 Old Hollow Road, Winston-Salem, N.C., on Tuesday was arrested and charged with indecent exposure. Harrison is accused of exposing his private part to a 55-year-old Chesnee woman near a Crawford Road residence Tuesday and offering to pave the driveway in exchange for oral sex. The victim said Harrison was a passenger in a truck who approached the victim about purchasing pavement. The victim said the suspect, later identified as Harrison, began making sexual comments and exposed himself. The victim said the driver 'seemed embarrassed' by the incident and drove off."
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My friend Sharon would have a grandfather's clock serviced at her house over the years.  An older man would come out and quietly do his work.  One day he asked her for kisses and hugs!  She was kind to him, but declined.  Someone else cleans her clock now. 

Friday, February 19, 2010

Annals of Bad Lawyer Advertising--Text Me!

Here's one that comes by way of the ABA Journal website, and the Las Vegas Review Journal website accident attorneys advertising to prospective clients, "Text Me."  That's right Ed Bernstein, pic, has spent about $50k last year alone to tell accident victims to text him. 

This is from Jennifer Robinson's piece in the Las Vegas Review Journal:

"'If you want to reach out to potential clients under the 'age of 40, texting is a really important way to do that," said Bernstein, a pioneering legal marketer who was the first local attorney to buy billboard space and advertise in Spanish. 'I see texting as another new beginning, another first for our firm that will help us make legal services available to the public as easily as possible.'

So Bernstein has rolled out television spots advertising a specialized, dedicated business-texting number -- 24-00-00 -- through which consumers can text him in an emergency, or if they think they might have a case."
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This reminds me of my days with the ambulance chasers, I had lunch with one of the veteran bottom-feeders and we were crossing OurTown public square when we witnessed a city bus rear end a car sitting at a light.  Very minor "fender bender."  My senior collegue reached in his pocket and handed the apparently unharmed passengers business cards.  I was astounded, especially when they showed up to file a claim against the cirty bus operators. 

Well, let's just hope that Bernstein's prospective clients text the attorney after the accident!

Boys and their Toys--New Nebraska State Trooper Patrol Cars

Check out some of Nebraska's new patrol vehicles, pictured.   I kid you not, Nebraska's Boys in Smokey Hats decided they needed three of these babys.  These Army Suplus LAV-25s are all terrain, all weather and ready to take on the Bad Boys who pass through the Cornhusker state with bad intent.  The original report is at the Omaha World-Herald.

Thursday, February 18, 2010

Back to Work!

The Bad Lawyer landed his first job in 28 years with W-2 withholding. 

By the grace of professional friends who went to extraordinary lengths to assist me, and to comply with the restrictive requirements of the OurState rules relating to disqualified attorneys, I am performing file reviews and updating law firm data bases.  My gratitude to my lawyer friends can not be expressed in words. 

What does that mean for this blawg? 

Fewer updates, for sure.  My commitment to my job demands that I provide this new start with all my business hours attention.  I intend to devote myself.  We will see how it goes, for now.  I will continue to peer out on the legal world, and log posts for the time being in my now, scant free time.   Expect less, but quality.

Workplace Sexual Harassment-Part Four--the Prosecutor

According the Billings Gazette, the Yellowstone County Proscutor, Dennis Paxinos (the irresistable guy in the pic) allegedly can't keep his hands to himself.  A former legal assistant, Stacie Muhlbeier filed a sexual harassment complaint against Paxinos who "was cleared" of wrong doing by an outside investigator even though he admits "consensual sexual contact." 

According to the account Paxinos left a trail of suggestive emails, and despite being "cleared" the investigation suggested he be disciplined.  The Gazette went to some lengths even filing a lawsuit to obtain the information identifying which of their public officials was the subject of the complaint.

The story is an interesting one because the reporters at the paper took the time to lay out the details of the interaction and the sort of dunderheaded handling of the investigation and its aftermath.  I do sympathize with Paxinos in one sense, the events took place in 2003 he's still paying a personal and professional price 7 years later.   But it looks like he can blame himself, because it seems pretty clear that he participated in a deliberate effort to withhold information from the public. 

I know exactly what that's like.  If the Bad Lawyer had confronted his law office management practices, particularly his tax nightmares and demons timely, he might not be writing this blawg and bitching and moaning about the law from the sidelines.

Falsely Accused of Rape

A former St. Paul, Minnesota resident, Justin Sallis, has filed a federal lawsuit allegeing violations of his civil rights, false arrest and imprisonment.

He was accused of raping a woman he in fact dated and with whom he had consensual sex.  He did not rape her, and she did not accuse him of raping her.  According to the story at the Minnesota Star Tribune, on March 15 (of last year), the day after her date with Sallis; the woman called 911 and reported that she had been raped by someone she described as looking nothing like Mr. Sallis.  In fact the age cohort she gave the police for her violent assailant was 20 years older than Mr. Sallis.  Already weird?  It gets weirder, on March 16, she and Sallis have consensual sex again;  okay, got that?  Justin Sallisa and his friend have sex on the March 14, his friend is allegedly raped on the 15th, and finally she and Sallis have sex on the 16th. 

So the rape kit comes back in June with with Mr. Sallis' DNA, he's arrested and he spends 39 days in jail. 

This story goes to prove the point that weird shit happens.  Not that any reader of Bad Lawyer had doubts.  Let me add that Justin Sallis is lucky this didn't go down in Texas, Georgia, Tennesses and a few other venues we look at, eh?

Send My Sister to the Slammer!

The lady in the picture is telling a sentencing Judge that her sister should be sent to the slammer for "embezzling" funds from theri parents' retirement account, maybe $100,000, maybe more.  The account at MLive by John Tunison is a classic recurring drama that runs in families with aged parents that I've seen played out over and over again.  The woman in the picture is Janet Unger, her sister Eloise Russo was Grand Rapids-area, guardian rendering care to her parents and two mentally handicapped brothers.  Ms. Russo misappropriated funds according to Probate Court records.

I actually defended a federal lawsuit not dissimilar to this case in which three vicious siblings made outrageous allegations of misappropriation of funds.  The conduct of one of the sisters in the case I defended was os over the top that the Federal Judge hearing the case was on the verge of jailing her for discourtesy.  Every hearing was like being "racked."   As it turns out, unlike the situation in Michigan nearly every dime was accounted for and legitimately spent by the other family members for their mother's support.  The argument was about control and who would get what when mother ultimately died.  When Mom died the lawsuit ended. . . well, changed venues and states. How do you spell relief. . . change of venue.

The story of Mrs. Unger and her sister brings it back.  Mrs. Unger's account of her sister's misdeeds sounds a little exaggerated.  Her courtroom language was florid, and I get the impression that the Judge who was asked to send the sister to the slammer concluded that Mrs. Unger was not too impressed by the sister's plea to jail her sibling..  The Judge gave the sister, Mrs. Russo, probation, although Mrs. Russo is going to have to deal with restitution requirements in Probate Court. 

I am so beleaguered by the dark side of the internet, cable news, disciplinary and tax nightmares, that a good old family feud was a slight relief. 

There is so little love and compassion in the world.  It's funny that I would talk about love, but I loved what I did as an advocate for people.  I was the Bad Lawyer, but I cared about my clients and the wrongs being done to them.  But I don't think I ever lost the feeling of compassion or empathy for others.  The deep loss I feel, the shame and humiliation makes it very difficult to stand upright.  I keep telling myself, don't quit--so, I think, what must it be like for a woman like Mrs. Russon to stand in court and hear her sister tell a Judge to send her to jail over money that may or may not have been spent on the care of their parents.  In that case Mrs. Russo lost her job, her family, and now her reputation.  Very sad.

Wednesday, February 17, 2010

Driniking Games--Malcolm Gladwell in the New Yorker on Alcoholism

Malcolm Gladwell author of the Tipping Point and numerous other best-selling collections of essays is also a staff writer for the New Yorker.  In the current edition (Feb. 15 & 22, 2010)  Gladwell has a provocative contribution on the subject of alcohol consumption, abuse, and alcoholism.  Gladwell's article, Drinking Games, How Much People Drink May Matter Less than How They Drink It, is unique, as most of his essays are;  because having read it, I don't think there was one mention of "recovery," treatment, or AA.  The focus of the piece was entirely on the way we drink and abuse alcohol from a cultures perspective.  The thesis is that alcohol abuse and the effects of drunkeness is culturally-shaped for example wild and crazy college kids will behave like wild and crazy drunken college kids.  Likewise, Gladwell cites a 1940s study of ethnic Italians in New Haven, Conneticut  who in certain insular communities who reported daily drinking often to the point where you would expect inebriation but without the obvious ill-effects that you see in others. 

Gladwell is notoriously perverse, in the sense that his fascinating take on any subject can leave you spinning sophist syllogisms trying to draw a lesson.  So it's fair to ask, what do we make of Drinking Games,  Mr. Gladwell.  Maybe Gladwell doesn't mean much of anything.  People from certain cultures drink, get drunk, and don't act like assholes--while others do.  Even within these cultures where people routinely drink to excess and don't act like assholes--some do.  Gladwell talks about the various theories of alcoholism, although I'm not real sure what if any conclusions he draws.  Are drunks disinhibited or myopic?  Who cares.  Is Gladwell saying that in those societies where persons drink culturally-responsibly there isn't a physical, familial, or social toll?  Really, I don't know.  The danger in thinking that Gladwell has hit on anything new other than an interesting "aside" to the discussion of alcoholism is that some might think license is granted to abuse away although that would not be Gladwell's fault.  The essay's only apparent conclusion is that there might be a healthier approach to introducing our children to the consumption of alcohol apart from total abstinence followed by drunken debauchery at school. 

Bad Lawyer followers know that the Bad Lawyer is an ex-drinker, and a fomer vice-chair, and chair of the OurTown Bar Association Assistance to Lawyers' Committee.  In my twenty-plus years of reading on the subject of alcoholism, every once in awhile an article or book gets published that has "recovering alcoholics" buzzing.  Is this article or book a new insight, is this a refutation of accepted dogma?  Can an alcoholic ever go back to healthy drinking?   These debates peter out pretty quickly with people needing help getting help, while many others needing help--saying no, no, no... keep on keeping on often unto tragic ends. 

The fact of the matter is, all sorts of things happen under the sun, every imaginable variation.  But alcoholism destroys health, ruins families, and more urgently drunks operating machinery, especially cars kill themselves and others.  All the special insights into the marvelous myriad worlds of our cultural diffences won't change that outcome one little bit.

Bad Prosecutors, Arpaio's Boy, Andrew Thomas Takes the Stand

In the continuing car wreck that is Maricopa County, Arizona local politics there was an extraordinary proceeding yesterday at which Sheriff Joe Arapaio's consigliere, Andrew Thomas testified at a hearing to determine whether Thomas should be disqualified from prosecuting other county officials who are politically at odds with Sheriff Arapaio. 

The Bad Lawyer has followed these cases since thr outset of recent events that include hiring $1100 an hour appellate lawyers from D.C. to advance the personal animus of the Sheriff, the one who calls himself, America's Toughest.  The underlying story is that Maricopa County, which encompasses metropolitan Phoenix, Arizona is the land of the "snow bird." Seniors and others flock south in the winter months, and property values sky-rocketed until recent years.  In the view of Arpaio and others problems in Maricopa County are precipitated by illegal immigration from Mexico and Central American countries.  Arpaio's approach to crime includes enforcing federal immigraton laws, and his approach to enforcing state and local laws are said to involve racial profiling and discrimination especially against persons of hispanic heritage. 

Sheriff Arpaio's power increased with his perceived "tough" on crime approach and reckless disregard for the rule of law as embodied in Arizona and the US. Constitution, to an extent, which open warfare has erupted among elected officials and the judiciary vi-a-vis, the Sheriff.  Instead of reaching out to the other elected officials, Arpaio utilizing the office of the County Attorney, (who is the prosecutor, Andrew Thomas) began obtaining indictments of local officials and recently has taken to bringing federal racketeering lawsuits against County officials.    Think about this, this is sort of like suing your co-workers while claiming you can still provide services to them anf with for your clients--not real easy to do.  Thomas contends that he can sue his co-workers, prosecute his co-workers and still somehow provide services to the citizens of Maricopa County that they hired him to do.

Funny twist on this, this isn't the first time Mr. Thomas prviously obtained indictments against this very county official, Mrs. Mary Rose Wilcox.  In classic prosecutorial overkill he indicted Mrs.Wilcox on multiple, multiple counts accusing her in every variation on a theme of fraud, of false this-false that...for allegedly voting on matters that impacted an Hispanic advocacy organization to which Mrs. Wilcox or her husband was obligated to on loans.  All of these indictments agasint Mrs. Wilcox, and one other county official were dismissed by a Superior Court Judge outside of Maricopa County.  This wasn't what Arapaio wanted, he wanted the heads of these two county officials, so Thomas sought a second prosecution.  Originally, the case files were given to an out of county prosecutor Yavapai County prosecutor Sheila Polk she told Thomas that her review and investigation of the allegations against Mrs. Wilcox revealed no evidence of a crime.  Thomas demanded the files be returned and he went off and obtained a boatload of new indictments against Wilcox et al.  Prosecuor Polk fearing a miscarriage of justice courageously spoke up, penning an op-ed for the Arizona Republic.   Prosecutor Polk also testified, yesterday at the hearing seeking to disqualify County attorney Thomas from further prosecutorial involvement in these matters.  Polk said under oath that the Maricopa County Sheriff's department threatened her if she went public.  Does any of this scare you?  It should. 

Remember, the person not in the courtroom is the driving force behind all of it, Sheriff Joe Arpaio, America's "toughest sheriff." 

http://link.brightcove.com/services/player/bcpid30311461001?bctid=66899385001 The link is to the short video excerpts of the hearing.  You can see the witnesses for yourself including Andrew Thomas. 

Good for Iowa!

Iowa is grappling with efforts to change it's judicial selection process away from a "selection and retention vote" process.  The current effort to elect judges and abandon the "hybrid merit selction" process comes on the heels of Iowa's Supreme Court decision last year to recognize same sex marriages. 

The story at the Sioux City Journal is instructive, in the sense that legal experts with the Iowa bar, and the courts are warning the citizens of the dangers inhernet in judicial campaigns focused on an isolated decision rendered in good conscience by an independent judiciary.  This is the debate, that every state in the union should be having with its citizens.  The Bad Lawyer struggles with this debate.  I'm horrified for you, the citizens of OurState, when I look at a lot of the folks we call Judge who you elected because they are named Irishname, Italianname, and so on. 

On the otherhand, take away direct election and the "merit" process will tend to homogenize a certain sort of "elite" that we need to guard against.  Seriously, watch out for the bowtie crowd!

Driving Pet Peeves

The Atlanta Journal Constitution has this report of a proposed traffic law; the traffic ordinance I've long regarded as desirable.  It is the Bad Lawyer's driving pet peeve--passing lane drivers who are slowing down drivers who are trying to use the passing lane, for passing!

Now I know what you're thinking, the Bad Lawyer must be an aggressive left hand lane driver who tailgates and mutters to himself.  Au contraire, mon cher--when I drive, I drive more or less in the right hand lanes of travel, amazed at the clueless wonders dawdling along in the passing lane of travel.  It's worse since the age of the cell phone.  The Georgia legislator, Mark Butler, who proposed the bill is quoted as saying, ""It is a safety issue when people use that lane as their personal driving preference [rather than as a passing lane, without regard to the rest of traffic]", Butler said.  Butler believes eliminating the problem might help traffic congestion. "We’re not trying to promote speeding," Butler added. "If you’re speeding or you’re tailgating in that left-hand lane, you’re still going to get a ticket."

Okay, I'm not really in favor of new tickets, but the idea makes me smile. Sick, huh?

Tuesday, February 16, 2010

Shoot Him In the Head?


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I've said here, before, that the Bad Lawyer Blawg does not concern itself with the "Big Story," the interest, here, is to talk about . . . well, the sorts of things that most people experience as they navigate the law or read law stories.  But this bit of Cable news grabbed me, and I actually think it illustrates one of the larger themes: demagoguery and it's distortion of the Rule of Law. 

The thing about the Rule of Law, it exists because it governs our own worse impulses, including our impulses to act hastily, vengefully, and reactionary.  Thank God.  For instance, we were told that Guantanamo Bay held the "worst of the worst." And yet, when those "screaming liberals" the US Military actually conducted evidentiary inquiry many of those "worst" turned out to be actually innocent of any invovlement in jihad, or war against American and our allies.  So "shoot him in the head" what does that mean, exactly what? 

You know what it means.  It means walk away from the very thing that makes America different than most other places in the world. 

The Death of American Virtue

Janet Maslin in Monday's New York Times had a review of Professor Ken Gormely's book, The Death of American Virtue about the "legal mess," of Bill Clinton's presidency beginning with the Whitewater investigation through the Starr Report and Cinton's impeachment (and 5 year suspension from the parctice of law) for perjury. 

President Clinton is actually one of those people who give me hope that there is life after my personal and professional disasters.  Let's face it, the guns were out for the Clintons, and Bill Clinton had exposure, (no pun intended) through his own appetites (as the pundits like to claim) and through his ill-advised denials when the shit did hit the fan.  The larger question, and I think we know the answer, was any of this investigation, prosecution, suing of our sitting American president good for us?  Did the political warfare of that time usher in an era of poitical comity, cooperation, freedom and liberty?  No. 

The BSL (blonde super lawyer's) mother was a real character.  She and my father-in-law were rabid anti-Clintonites.  Long before the Monica Lewinsky scandal, my mother-in-law was certain Clinton was Satan.  I'm pretty sure the Secret Service had MaryAnn on their radar screen--I actually loved this lunatic rightwinger (for some reason for a centrist-lefty I have lot of right wing pals.)  MaryAnn had the White House switch board on speed dial to complain vehemently about this or that trampling of our liberties by the Clintons.  Unfortunately MaryAnn fell prematurely ill with pancreatic cancer, and I always thought how big a loss it was for her not to live through Clinton's impeachment.  I know that sounds pretty dark, but I'm pretty sure it would have been the highlight of her life. 

For me, it was a horror story.  I liked Bill Clinton, I hated Gingrich, et al., and I saw Kenneth Starr as this supercilious prig.  Let me be clear, Clinton's behavior hurt those of us who supported him philosophically, but the persecution and prosecution of Clinton by Kenneth Starr and the rightwing media was greenlighted in part in one of the worse decisions unanimous decisions of the US Supreme Court in the modern era, Clinton v. Jones.  The US Supremes held that the Constitution does not grant a sitting President immunity from civil litigation except under highly unusual circumstances. After noting the great respect and dignity owed to the Executive office, the Court held that neither separation of powers nor the need for confidentiality of high-level information can justify an unqualified Presidential immunity from judicial process. While the independence of our government's branches must be protected under the doctrine of separation of powers, the Court said, the Constitution does not prohibit these branches from exercising any control over one another. This, the Court added, is true despite the procedural burdens which Article III jurisdiction may impose on the time, attention, and resources of the Chief Executive.

So Paula Jones, and her hit-squad lawyers were able to take the President's deposition and in tortured testimony Clinton denied under oath, having "sex with that woman." Clinton's answer was not "the truth, the whole truth and nothing but the truth."  He got cute, and while in my opinion he should not have been subjected to this shit--he lied.  Did he perjure himself, probably not in any "legal sense," but what does it matter.  Clinton gave all of us Bad Lawyers a powerful example of how not testify in a civil or criminal matter. 

What is the other legacy of Bill Clinton?  That you can be a flawed man, a flawed leader, and somehow retain your dignity and survive and even thrive in the wake of a personal and professional disaster?   I suppose it helps that publishers and speaker's bureaus the world over are waiting to dumb boatloads of money on you--but, I think there's more to it than money. 

An interesting aspect to Professor Gormely's book is his thesis, that I think is absolutely true, maybe it's not more than a statement of the obvious, but--so much of how the Clinton/Starr scandals shook out was a product of happenstance.  If only this, then that; if only that, then this; one thing is for certain in American politics, which this blawg is not about--there is a level of animus that is frightful.  This animus, tea party stuff, people shouting at their represntatives, demagoguery--it poisons the justice system.  I plan to write soon, about the Supremes in Wisconsin.  An ugly, ugly campaign that unseated an admired Justice has had a toxic effect on that court, similar to Michigan's high court as revealed in the disciplinary action against Geoffrey Fieger that we explored here on Bad Lawyer, last year.

It seems to me that there is a painful lack of sensibility in what we do and say--in an effort to be victorious.  The BSL has always argued that our adversarial system breeds this over the top need to personally destroy one another professionally,  When we did it to our president over his "personal" failures, we took a step too far.

$4 Million for a Couple of Turkeys

That's right, a Charleston, SC-area jury awarded $4 million to a brother and sister who were arrested on the complaint of their neighbor at Sea Island, South Carolina (this is near Hilton Head).  According to a report in the Post and Courier website the brother and sister pair had taken and released the neighbor's two pet turkeys into a wildlife preserve prompting their arrest.  The story at the Post and Courier is pretty fragmentary but it's worth clicking on the link to read hilarious comments under the news account. 

How a jury gets to $4 million dollars on this fact pattern, who knows.  My guess, the defendant, his attorney ro both must be real dickheads!

Paying for Wrongful Convictions

Both the Denver Post and the Columbus Dispatch have stories of wrongfully convicted persons that will be paid millions by their taxpayers of their respective states. 

The Columbus, Ohio story features the story of Robert McClendon (pic, right) who spent 18 years in prison for a rape he did not commit, based on DNA analysis.  He will be getting $1.1 million dollars from the Ohio Court of Claims, based on a recently reached settlement.

Larimer County, Colorado plans topay Tim Masters (pic, left) approximately $4 million for the decade he spent behind bars for a murder he did not commit.  The Masters case is particularly striking because there was essentially no physical evidence at all to convict Masters, check this (from Miles Moffeit's Post artilce): 

"At the time, prosecutors Terry Gilmore and Jolene Blair, both now Larimer County judges (!!!) used a psychological theory in the absence of any physical evidence to persuade a jury to convict Masters.  Masters, 38, spent a decade behind bars before he was released in 2008 after advanced DNA testing found no trace of Masters' genetic material as well as DNA that may point to another suspect. There has been no new arrest in the case.
Masters' attorneys discovered that the prosecutors and Detective Jim Broderick concealed evidence that would have aided Masters at his 1998 trial."

That's right Colorado, you were paying Gilmore and Blair to do what they did to Mr. Masters; you're still paying Gilmore and Blair, because they were such great "tough" public servants you elected them to Judgeships; and, now you get to pay Mr. Masters $4 million for stealing a chunk of his life.  

When will we learn?

Monday, February 15, 2010

Angry Jurors!

Boy, here's a story to give the plaintiff's bar the "willies" according to the LA Times recession-worried prospective jurors are in rebellion in certain LA courtrooms.  The following is from Carol Williams's article

Spurned in his effort to get out of jury duty, salesman Tony Prados turned his attention to the case that could cost him three weeks' pay.  A Los Angeles County sheriff's deputy was suing his former sergeant, alleging severe emotional distress inflicted by lewd and false innuendo that he was gay.

Prados, an ex-Marine, leaned forward in the jury box and asked in a let-me-get-this-straight tone of voice: 'He's brave enough to go out and get shot at by anyone but he couldn't handle this?'  he said of the locker-room taunting.  Fellow jury candidate Robert Avanesian, who had also unsuccessfully sought dismissal on financial hardship grounds, chimed in: 'I think severe emotional distress is what is happening in Haiti. I don't think you could have such severe emotional distress from that,' he said of the allegations in the deputy's case.

The spontaneous outbursts of the reluctant jurors just as Los Angeles County Superior Court Judge James R. Dunn was about to swear them in emboldened others in the jury pool to express disdain for the case and concerns about their ability to be fair, and to ratchet up the pathos in their claims of facing economic ruin if forced to sit for the three-week trial.  In this time of double-digit unemployment and shrinking benefits for those who do have jobs, courts are finding it more difficult to seat juries for trials running more than a day or two. And in extreme cases, reluctance has escalated into rebellion, experts say. After three days of mounting insurrection, lawyers for both the deputy and the sergeant waived their right to a jury trial and left the verdict up to Dunn.

'We can't have a disgruntled jury,' said attorney Gregory W. Smith, who represents Deputy Robert Lyznick in the lawsuit against his former supervisor. He called the panel 'scary' and too volatile for either side to trust.

Money woes inflicted by the recession have spurred more hardship claims, especially by those called for long cases, say jury consultants and courtroom administrators. More than a quarter of all qualified jurors were released on hardship grounds last year, according to court statistics. And judges say they have seen more people request such dismissals in the last year."
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The article is deals with the apparent growing problem of finding jurors who are not prejudiced by their perception of life in the Great Recession and the impact jury service is going to have upon them economically. 

I have extolled jury duty and the wisdom of jurors; but this story should strike a chord with anyone in legal peril civilly or criminally.  By the way, John Grisham termed this "the runaway jury" phenomena--well, this is worse, this is the angry jury.

Workplace Harassment Bad Bosses--Worth Watching!

Workplace Sexual Harassment-Part Three, Rotten Law Bosses

My pal Chirs sent this story along, it's a report at eboss.com concerning a lawsuit against the law partner in the picture, Robert Eicher and his 300 member Virginia-based law firm, Williams and Mullens (their slogan is: "where every client is a partner," and) where the plaintiff a young woman of Viet Namese descent was employed.  According to the lawsuit:

Mr. Eicher, 'repeatedly engaged in inappropriate sexual behaviors and made ethnic slurs. Shortly after (Hanh Nguyen) Allgood’s hire, Eicher approached Allgood in her cubicle, introduced himself and asked if she was from Viet Nam. When Allgood responded in the affirmative, he then gestured toward her genital area and asked whether her vagina was horizontal or vertical.'In what the lawsuit refers to as the 'cucumber incident,' Eicher allegedly put a cucumber in his pants pocket and then hugged and pressed the cucumber up against Allgood’s thigh desipte her attempts to pull away from him. Allgood complained to management and other employees, several of whom told her that they were also victims of the cucumber incident.

The complaint states that Eicher 'often walked around the firm dressed as a doctor showing his gloves and asking female staff if they wanted to be ‘examined.’ Eicher also had several sexual relationships with employees and publicly described his sexual encounters with them.'"

Oh, and there's lots more garbage about the bosses at this "law" firm, that finds it's way into Ms. Allgoodf's complaint.  This is the classic "hostile work enviornment" fact patttern, in case you were wondering.

 Frankly, I probably wouldn't pass this story along, but there have been 7 other EEOC complaints about William and Mullen filed by employees in recent years, according to the eboss story, lending a strong note of credibility to the allegations; and, it is always instructive when the so-called guardians of the rule of law, are the perpetrators.  I wonder how many of these Williams and Mullens folks sit on their bar association legal ethics panels? 

Hmmmmm.

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'"
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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.