Wednesday, June 30, 2010

David Brooks on Bill Wilson and Alcoholics Anonymous

Tuesday morning, the NYT columnist David Brooks had a wonderful essay on Bill Wilson and Alcoholics Anonymous.  As readers of Bad Lawyer know, I am an alcoholic and I attend AA meetings sometimes twice a day--and, previously for many years beginning in the mid-1980s.

David Brooks' summary of the history of AA is by necessity, cursory, of course, nonetheless Brooks' summary unforgivably ignores the role of Dr. Bob Smith (pic, left with Bill Wilson right) and others who co-founded the movement 75 years ago this month.  Still, Brooks' column is excellent especially in the sense that it draws lessons which bear learning.  Brooks credits an essay in Wired Magazine on the AA movement which Brooks observes:

"The first implication of [the Wired Magazine] essay is that we should get used to the idea that we will fail most of the time. Alcoholics Anonymous has stood the test of time. There are millions of people who fervently believed that its 12-step process saved their lives. Yet the majority, even a vast majority, of the people who enroll in the program do not succeed in it. People are idiosyncratic. There is no single program that successfully transforms most people most of the time.

The second implication is that we should get over the notion that we will someday crack the behavior code — that we will someday find a scientific method that will allow us to predict behavior and design reliable social programs. . . Each member of an A.A. group is distinct. Each group is distinct. Each moment is distinct. There is simply no way for social scientists to reduce this kind of complexity into equations and formula that can be replicated one place after another.

Nonetheless, we don’t have to be fatalistic about things. It is possible to design programs that will help some people some of the time. A.A. embodies some shrewd insights into human psychology.

In a culture that generally celebrates empowerment and self-esteem, A.A. begins with disempowerment. The goal is to get people to gain control over their lives, but it all begins with an act of surrender and an admission of weakness.  In a culture that thinks of itself as individualistic, A.A. relies on fellowship. The general idea is that people aren’t really captains of their own ship. Successful members become deeply intertwined with one another — learning, sharing, suffering and mentoring one another. Individual repair is a social effort.

In a world in which gurus try to carefully design and impose their ideas, Wilson surrendered control. He wrote down the famous steps and foundations, but A.A. allows each local group to form, adapt and innovate. There is less quality control. Some groups and leaders are great; some are terrible. But it also means that A.A. is decentralized, innovative and dynamic.

Alcoholics have a specific problem: they drink too much. But instead of addressing that problem with the psychic equivalent of a precision-guidance missile, Wilson set out to change people’s whole identities. He studied William James’s 'The Varieties of Religious Experience.' He sought to arouse people’s spiritual aspirations rather than just appealing to rational cost-benefit analysis. His group would help people achieve broad spiritual awakenings, and abstinence from alcohol would be a byproduct of that larger salvation.

In the business of changing lives, the straight path is rarely the best one. A.A. illustrates that even in an age of scientific advance, it is still ancient insights into human nature that work best. Wilson built a remarkable organization on a nighttime spiritual epiphany."
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Let me make a further point or perhaps a clarification that I made on Bad Lawyer a short time ago;   the Big Book of Alcoholics Anonymous is absolutely explicit:  alcoholics suffer from a mental obsession that is characterized by drinking alcoholically.  In other words there is: (1. a drinking problem;  and, (2. a thinking problem.  It is simplistic to think that arresting the one problem solves the other problem.  People active in AA know that you get sobriety only when both problems are addressed in tandem--and this can only be accomplished by following a "program of recovery" that consists of nothing short of cognitive restructuring.  In sum:  stop drinking, and change your whole life.

Minimum 12 Years for Raping his Child Bride

The Milwaukee-Wisconsin Journal-Sentinel is reporting the story of the Hmong man sentenced to 8 years in prison for raping his wife over many years.  The story is a tragic story with elements of family law, cultural differences, pedophilia, and sexual violence.  This is from Bruce Vielmetti's account: 

"Thaying Lor (pic) was sentenced to a minimum of eight years in prison Monday after being found guilty of sexually assaulting his wife over the course of their marriage, beginning when he essentially kidnapped and raped her at age 12.  Under sentencing [guidelines], Lor could serve as much as about 12 years in prison.

Lor was charged in March after his wife's testimony in their divorce hearing about the forced beginnings of her marriage led a bailiff to contact law enforcement about the case.  Lor claimed his actions during their relationship were proper and his right as a husband in an arranged Hmong marriage. Prosecutors said it was in fact criminal behavior.  The woman, now 31 and who has a different last name than Lor, is not being identified because she is the victim of a sexual assault. A judge in March granted her a divorce, even though the couple had never been legally married in Wisconsin. She has custody of the couple's six children, some of whom testified against their father.

The week long trial before Circuit Judge Kevin Martens featured extensive testimony about Hmong cultural beliefs and practices, much of it through interpreters. The victim's mother testified that she and her husband accepted a $3,000 dowry from Lor to pay for a celebration and to not tell police about the union. She said they only hoped Lor would love and care for their daughter."
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I was recently at an AA meeting featuring a speaker from our culture with a similar story as the one here.  These grave crimes of child sex abuse and exploitation can not be explained away as being taken out of cultural context.  Sex crimes against women and children are crimes against humanity.

Tuesday, June 29, 2010

Mom Jailed for Defying Order to Produce 9 Year Old for Visitation with Rapist Father

The New York Daily News reports on the Judge (picture) who reversed herself and freed the mother she ordered jailed after the mother refused to let her 9 year old visit his rapist "father."  This is reporter, William Sherman's story:

Sukhwant Herb, 29, who defied Brooklyn Family Court Judge Robin Sheares' visitation order, was to be released to her lawyer's custody.  Sheares abrupt change of mind came after the Daily News reported on Sunday how Herb was sentenced to 50 days at Rikers Island on June 10 for refusing to send young Seon into the 'horrible, horrific' environment of prison.

High court officials were shocked that Sheares locked Herb up without giving her a chance to post bail, as well as by the judge's comments in court, according to sources. At a June 10 hearing, Sheares ranted, 'Shame, shame, shame, you see how shameful she [Herb] is,' according to a transcript. 'She's gonna get arrested and her kids are not gonna know where she is.'

Last night, the judge said that Herb must appear in court today with her son as a condition of her freedom.

'No bail in a case like this is really shocking,' said Herb's lawyer, Dale Frederick. 'My client has not been charged with a crime, has never been charged with a crime - and even felons get bail,' said.  The case began when Herb, who first agreed to the prison visits last Sept. 15, changed her mind, ignored the order and skipped four court appearances. Seon Jonas, the father of Herb's son, was convicted in 2003 of raping three women in Phoenix - while he and Herb were living in Phoenix - and is serving 27 years in a state prison."
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I am pretty sure I related the story of Edith (not her real name) on Bad Lawyer, previously, if not it was one of the most sickening cases I have ever been involved with in my career.  Edith's husband and the "father" of her little girls sexually abused his daughters giving one daughter a venereal disease. 

While evidence that the little girls were sexually abused had been confirmed, and the close male relatives were under suspicion, a domestic relations judge ordered the Mother to produce the daughters for visitation and when she refused jailed her.  The local Sheriff allowed Edith to camp out in his office in relative comfort.  The Sheriff released Edith the next day after we were able to generate publicity for her situation and the Sheriff informed the court that there was no room in the local jail. 

Judges have the capacity for genuine justice which is afterall, judgment and mercy.  Most judges take this command deadly seriously. The Rule of Law and respect for the law are products of judgment and mercy--it sounds like Judge Sheares had this as an epiphany.   

Judge Fowler Given the Hook by Georgia Supreme Court

The Atlanta Journal-Constitution has an unusual report on a "Probate Judge" given the heave-ho by the Georgia Supreme Court.  Generally speaking, I feel I bring some insight to these reports by reading between the lines, but his one has me wondering wtf?  Here's the report:

The Georgia Supreme Court has permanently removed a suspended Twiggs County Probate Court (pic of courthouse) judge from office and barred him from ever holding judicial office again in the state.  The court ruled on Monday that Judge Kenneth E. Fowler showed he was unwilling to live up to his legal and ethical responsibilities.  The Judicial Qualifications Commission found that Fowler had violated several judicial canons, such as by telling criminal defendants they had to prove their innocence.  The commission also said Fowler let criminal defendants buy out of community service, then put the proceeds into a bank account he controlled.  Fowler, who was suspended in May, is not a lawyer. His attorney, Jon Helton, returned a phone call but said he was in court and had not seen the ruling.
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Here are some of the allegations against Judge Fowler:

•He convicted some suspects without any testimony from law-enforcement officers -- finding some defendants guilty based on an officer's notes written on the traffic ticket.
•He expressed bias on cases by making comments like, "That radar ain't gonna be wrong. I've rode in them (patrol) cars."
•He fined defendants for "costs" higher than the amounts allowed by law and jailed people for contempt of court for periods longer than allowed by law.
•He "failed to show proper decorum while presiding in Probate Court by improperly answering telephone calls while sitting on the bench, thus interrupting court sessions."
•He met with witnesses outside court -- for example, telling one suspect, "This game warden done told me all about your case."
•He heard cases -- for example drug and child-cruelty charges -- that are outside his authority as probate judge.
•He called a tenant on behalf of a Twiggs County property owner, identified himself as a judge and ordered them to move out of their rental property.
•He allowed a defendant's friend to try to interpret in court, even though the man admitted he could not speak Spanish.

You can "google" Judge Fowler and watch video from the commission of inquiry into Judge  The Judge blamed his problems on his lack of an appropriate education.  No kidding? 

It's very curious how some of these jurisdictions allow non-lawyers to occupy judicial seats.  We've seen it several times throughout the life of this blawg--I'm sure there are examples of outstanding people doing these jobs without a formal law education, but often not.  It just seems so strange to empower non-lawyers to hear cases in even petty criminal matters.  Small law, in the smaller courts most people have their first and most important exposure to the Rule of Law--having a guy like former-Judge Fowler presiding sends a pretty lousy message.

A "probate judge" in Georgia appears to be someone with handling more than estates, wills and trusts like you find in most U.S. jurisdictions.

License Suspsenion for Pistol Whipping a Colleague, Seems Appropriate

The IndyStar.com website relates the story of the Indianapolis attorney who is awaiting trial for pistol whipping a colleague and the emergency steps taken by the Indiana Supreme Court to suspend the lawyer's license in the interim:

"Augustus Mendenhall (pic), 39, has been jailed on $3 million bond since he was accused of trying to kill Democratic state Rep. Ed DeLaney, also an Indianapolis attorney, by holding him at gunpoint and severely beating him during an encounter Oct. 31 in Carmel.  The Supreme Court's Disciplinary Commission requested the emergency license suspension. Mendenhall's attorney, Jack Crawford, said he consented.

Mendenhall's trial is set for Sept. 7 in Hamilton Superior Court.

The attack apparently was motivated by a 26-year-old legal dispute between Mendenhall's father, Burke, and DeLaney, police said. Crawford said the younger Mendenhall is pressing an insanity defense."
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Talk about the wages of ego! 

This is actually a fascinating case, apparently DeLaney was involved in a lawsuit int he 1980s that resulted in the elder Mendenhall losing real property that was confiscated because it "was gong to be used to sell pornography." 

The younger Mendenhall lured DeLaney to a vacant lot where the revenge attack took place.  Mendenhall apparently intended to kill DeLaney but the pistol jammed and Mendenhall committed the pistol whipping instead.  According to news accounts, the younger Mendenhall had just returned from Miami and was homeless at the time of the attack.

Monday, June 28, 2010

Doe v. Holy See, Goes Forward

On the last day of the term, the U.S. Supreme Court denied the appeal of the Holy See (the Vatican, the Holy Roman Catholic Church) seeking dismissal from a child sex abuse suit as a Sovereign Power--an argument I discussed in the first days of this "blawg."  This is a good development in the evolution of the Rule of Law.  Expect St. Paul clergy sex abuse lawyer, Jeff Anderson to seek the Pope's deposition in coming months and the hysterical arguments over those discovery efforts.  At the link you can read the Chicago Sun Times' background story on the case that was filed more than 8 years ago!

Mesherle Weeps On the Witness Stand

The San Francisco Chronicle reports on the testimony of former Oakland BART officer Johannes Mesherle, the transit cop who shot and killed Oscar Grant at point blank range and caught on cell phone video.  This is from Demian Bulwa's story:

"'I didn't think I had my gun.'

Those were the words Friday of former BART police Officer Johannes Mehserle, who wept on the witness stand at his murder trial as he testified that he had accidentally shot and killed Oscar Grant while intending to fire Taser darts into the unarmed man's back.  But after waiting for a year and a half to hear an explanation from Mehserle, Grant's family was not satisfied. They said the story was a lie, the tears a piece of courtroom theater.

Mehserle said that seconds before the shooting, he had decided to shock the 22-year-old Grant with a Taser because he saw him dig his right hand into his pants pocket - the same hand Mehserle was trying to handcuff on the platform of the Fruitvale Station in Oakland during an arrest early Jan. 1, 2009.

The pistol pull was smooth, with no 'red flags' to tell him he hadn't grabbed his Taser, said the 28-year-old ex-officer. He didn't realize he had shot Grant, he testified, until he looked at his right hand after firing and saw he was holding his pistol.

'I didn't think I had my gun,' Mehserle told the jury in a downtown Los Angeles courtroom. 'I remember the pop. It wasn't very loud. It wasn't like a gunshot, and I remember wondering what went wrong with the Taser. I remember looking to my right side and seeing my gun in my right hand,'  Mehserle said. 'I didn't know what to think. I just thought it shouldn't have been there.'

Defense attorney Michael Rains asked Mehserle what he remembered after that, and the former officer, by now crying, struggled with the words. "I remember Mr. Grant said, 'You shot me,'  he said.

Heckler's yell bring arrest

Grant's mother, Wanda Johnson, quickly left the courtroom as a Bay Area man identified by friends and authorities as Tim Killings, 24, stood and yelled, 'Maybe you should save those f- tears, dude.'  Bailiffs arrested Killings on suspicion of disorderly conduct and led him from court, and Judge Robert Perry declared a brief recess."
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As you will recall from my earlier posts on this sickening-video recorded homicide, the prosecution of former officer Mesherle will turn on the concept that we talk about repeatedly on Bad Lawyer--mens rea, what was Mesherle's intention. It sounds like Mesherle's testimony helped him bring perspective on this awful event.  There certainly is the "taste of hell" in this unnecessary tragedy, and lessons for all of us abounding., especially the lesson of abuse of police power.

Hypebole + Hypocrisy Illustrated

AZCentral is reporting that a visiting Pima County Superior Court Judge overseeing Maricopa County controversies between Sheriff Joe Arpaio and the rest of the elected world has ordered Arpaio to end his defiance of County Supervisors who have ordered him to appear at a county meeting to explain apparent financial misspending issues and produce records Arpaio has thus far refused to produce.  The by JJ Hensley is wonderful for the lawyering hyperbole of Arpaio's mouthpiece:

"[I]n a ruling released Friday, Pima County Superior Court Judge Richard Gordon poked holes in nearly all of the sheriff's legal arguments and authorized supervisors to go forward with the hearing.  Eric Dowell, an attorney for Arpaio, said he would appeal Gordon's ruling on the basis that it's unconstitutional for a board to try to preside over an individual when some of its members are suing the very same person.

'That violates every notion of due process and fair play that has ever been recognized by a civilized society recognizing the rule of law,' Dowell said of the hearing the Supervisors are pursuing.

County administrators were pleased with the ruling and said the object of the proceeding is to get answers about spending, not to embarrass Arpaio, who has fought with county employees and elected officials over various issues in the last two years.

'We are pleased that Maricopa County can move forward, on behalf of the taxpayers, to address the objective concerns about certain financial irregularities within the Sheriff's Office. We urge the Sheriff to promptly produce the financial records requested,' county spokeswoman Cari Gerchick said in a statement. 'Maricopa County is pleased that yet another non-Maricopa County judge has ruled that its conduct was completely lawful.'

Gerchick said there was no timetable yet for when the supervisors would seek to hold the hearing for Arpaio.

Arpaio's lawyers argued that the supervisors couldn't call Arpaio before them for a judicial proceeding in part because Arpaio's investigation into county officials and indictments of two county supervisors created a conflict of interest.  The issue arose after months of wrangling between officials in Arpaio's administration and county supervisors over spending in the Sheriff's Office and records that could help confirm or deny the county's suspicions that some money was being spent inappropriately."
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I love this lawyer's remarks, due process ... fair play...rule of law.  Arpaio invented the game of kicking people around without due process, fair play, or the rule of law.  Remember this is the guy who humiliates human beings guilty or not by marching them around in pink jumpsuits, who condones his deputies stealing from the private files and papers of attorneys at the courtroom table, who exercises utter contempt for the orders of Judges he is charged to assist, he's the "public servant" who initiates repeatedly frivolous criminal indictments and civil racketeering lawsuits, who defies federal and state laws, and Arpaio is the Sheriff who spends the taxpayers' money literally like it is nobody's business on, in one case a luxury bus, and private BigLaw attorneys.
 
The claim of attorney Eric Dowell is preposterous and the sort of obnoxious hyperbolic and hypocritical claim that brings contempt on all mouthpieces.

Sunday, June 27, 2010

The First Disciplinary Case

Last week on Bad Lawyer,I was telling you about the first law partnership:  Moses and Aaron [LLC]; forged by the Creator as recorded in Chapter 4 of Exodus.  Also, in the Oxford English translation (1970) of the Holy Bible, we find the first use of the term: "mouthpiece" in the context we use it, here. 

What I did not know until late last week is that near the end of this partnership, and it is certainly the most prodigious law partnership of all time, with the whole of what we know as Judeo-Christian law being received and implemented, Moses and Aaron commit the first disciplinary infraction and do not kid yourselves, the sanction is most profound.  For the story we go to Numbers Chapter 20:2-13, the Waters of Meribah.  As you will recall when Moses first talked to Yahweh at Mount Horeb, the Creator gave Moses a staff that was famously used by Charlton Heston to great pre-CGI effects in the Cecil B. DeMille version of the Ten Commandments.  This powerful tool, "the staff" was to be used by Moses for precisely the sorts of effects intended to persuade Egyptians and Israelites that there was one God, and that the God of Moses and the Jews was the real deal--which is not all that different from how the staff was used by DeMille.

One of the most important things to remember about the creation story is the role of words, and much of the writings about creation focused on the coming into being of not only the world, but also of the word especially, the formation of letters!  Thus the sacred aspect of God's name which we Christians read as Yahweh is not uttered by pious Jews, the letters the most sacred of name of God is not to be uttered.  In fact Yahweh is just one of some 72 names of God, or 42 names of God--go ahead and look it up.  But the point is that the use of words, and language is very important--and, it still is--ergo the study of linguistics and semantics, and even popular fiction like Dan Brown's the Lost Symbol.  But we're talking something very profound and instructive lost to most of our consciousness--Moses argues with God on his very first encounter as I talked about last week.  Moses, says--I am not a good talker, lousy with words.  God assures him that he, God--the, "I AM," will provided the words and Moses and Aaron will be his mouthpiece. 

Most of us know how well this works out, because the Semitic tribes, Moses leads out of Egypt are some pretty tough customers who are rarely happy or satisfied with anything or anyone often least of all: the leadership of Moses and Aaron.  The tribes of Israel are argumentative, and frequently sinful--leading to the actual receipt by Moses of Torah and Talmud:  the written and oral laws and procedures underlying all of International law.  So with that digression we come to Meribah where once again in a desert setting we have--no water.  The people are in near revolt and Moses is at wit's end.  He and Aaron go to the Tabernacle and throw themselves down and ask God what to do.  The Lord tells them, go to the prominent rock taking the staff with you and before the assembly speak to the rock, and it will bring forth water.  Got that? 

So what does Moses do?  Does Moses do exactly what God has commanded him to do?  Nah. 

Moses goes to the rock, staff in hand and he strikes the rock twice, water comes gushing from the rock, voila`--and guess who's angry?

The act of ignoring God's commandment costs the partnership their goal of the Promised Land.  Moses and Aaron are de-barred by God from entering the land of milk and honey, Judah, Israel, Zion. 

It's ridiculous to add at this point, that I am not a biblical scholar, nor am I even a competent homilist.  I did hear a brilliant homily on this topic and the teacher spoke of the "sin of Moses" as it is often called as not a sin at all, but an important demonstration of God's love and awesome power.  But intrinsic in this story is a "taste of hell," failure of faith in the power of mere words, and even darkness--and, in another sense it is a demonstration by Moses and Aaron of something they demonstrate repeatedly as they occupy this historical stage, the willingness to give up their lives for their followers and in that sense genuine unselfish love for mankind. 

Wednesday, I will enter a guilty plea to a tax felony, explicitly agreeing that I failed to follow the words (of my oath), and obey the law.  This is very serious, and it may spell the end of this "blawg" for the time being.  I don't yet know.  I recognize in all sincerity my complete responsibility for my situation and the justness of whatever outcome the Court may determine  I also am more than okay with not reaching whatever promised land I thought I would reach in my lifetime--I am fully satisfied that the next chapter in my life is what God intends for me and my family.

Judicial Advice (Canadian): Be a Better Criminal or Get a Job

Canoe, the source for all things Canadian has this story by Bob Vaillancourt:

"Be a better criminal or get a job, a judge told a Sudbury, Ont., drug dealer during his sentencing Thursday. Christopher Morin was sentenced to four months in jail for trafficking cocaine, among other charges, after selling drugs out of the trunk of his car to an uncover police officer last July.  That was followed by a string of other run-ins with the police, that included driving with a suspended license, possession of stolen property and breaching his court orders several times.

'How did you manage to get into this?' Ontario Court Justice Normand Glaude asked Morin during the sentencing hearing.

'Just being stupid and not wanting to work,' Morin answered.

'You'll have to be a much better criminal than this if you don't want to work,' Glaude remarked.

Morin said he plans to take a residential drug treatment program once he is released from jail."
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Sounds like good advice, sounds like a good plan.

Saturday, June 26, 2010

More on Rubashkin's de facto Life Sentence

The Des Moines Register reports on the US Attorney's arguments supporting the 27 year sentence Sholom Rubashkin received for his financial fraud convictions.  Grant Schulte reports:

"Sholom Rubashkin deserves the prison time he received Tuesday in federal court, prosecutors said after a judge sentenced the former eastern Iowa meatpacking executive to 27 years. Bob Teig, a spokesman for the U.S. attorney's office, said the massive financial fraud scheme at Agriprocessors Inc. 'cries out for a sentence like this.'

Rubashkin, 50, was sentenced in U.S. District Court in Cedar Rapids and ordered to pay $27 million in restitution to banks and a cattle provider caught in the scheme.

Rubashkin was convicted of 86 fraud-related federal crimes in November, for his part in an effort to defraud the plant's lenders to collect advances on a loan. The plan collapsed after a May 2008 raid at the Postville plant that forced the owners to file for bankruptcy. Prosecutors, who have seldom spoke publicly since the immigration raid, said the fraud case ranked among the largest ever in Iowa's northern district.

'It is a lengthy sentence,' Teig said. 'But he earned a lengthy sentence. It's hard to get a 27-year sentence for a white-collar crime. It is very difficult.'  Teig said Rubashkin's crimes differed from other high-profile, white-collar cases with lesser sentences because of his actions. U.S. District Judge Linda Reade concluded in her ruling that Rubashkin led the fraud, involved others in the plot and lied at his trial. Teig said Rubashkin consistently refused to cooperate with authorities.

Assistant U.S Attorney Peter Deegan Jr., one of three prosecutors in the case, said financial crimes kept surfacing as investigators dug into the plant's books. Rubashkin's money laundering through a local school and grocery store hindered but did not stop the investigation, he said.

'You've got such a wide range of criminal activity here,' Deegan said. 'The case just kept building, and building, and building. Every time you turned over another rock, there was another crime being committed - and usually, it led to Sholom Rubashkin.'

Defense lawyers vowed to appeal, and railed against the sentence in a press conference with at least 100 of Rubashkin's Orthodox Jewish supporters Several in the group toted signs in front of the television cameras. One sign read: '27 years for overstating assets? That makes sense? OMG!'  'While this may appear to be the end of the case, it is not,' defense lawyer Guy Cook said. "It is indeed the beginning of the case. It's round one, if you will.'

Bob Barr, a former Georgia congressman who joined Rubashkin's legal team for the appeal, said the sentence was 'unjust, unnecessary, and unreasonable."
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I hear an animus in the expressions of the US prosecutors when they discuss Sholom Rubashkin's prosecution and de facto prison sentence that I find tragic. 

Here is a guy who committed financial crimes trying to keep open a religious foods business.  I know how awful it feels in business to struggle to keep the lights and phones on, the secretary working (without a proper paycheck), support my children, and do the right things without a proper stream of revenue.  I think it is error on the part of those gloating over the onerous judgment Rubashkin bears to think that Rubashkin was fully cognizant of all that the offenses he is said to have orchestrated.  In fact their slam dunk child labor charges which made their way into (and tainted?) the financial fraud trial--resulted in complete acquittals.

So, why is Sholom Rubashkin refused mercy in the harsh judgment of his prosecutors and this court? 

Friday, June 25, 2010

Remember the Lawyer Suspended Mid-Trial? Things Went Downhill From There!

Last Friday I told you about the lawyer and provided you with a link to the story of the attempted rape prosecution of Vincent R. Griffin (pic, left) whose attorney, Gerald T. Noel was suspended mid-trial for among other things, being incompetent. Did you think that was odd?  I did. Wait till you hear what happened next--Griffin apparently now habituated to poor representation convinced himself that he could do just as good a job at defense and took over his own representation with the Court's permission!  Apparently, Griffin was right, he was no more competent than his bodily-removed lawyer.

As you might expect, Mr. Griffin was convicted, here's the link to the story at the Columbus Dispatch. I really think this guy's ineffective assistance of counsel on appeal seems pretty sound.

Deposition Altercation Resulting in Disciplinary Suspension

The Legal Profession blawg reports (link is to the Florida Supreme Court decision) on a disciplinary case from Florida arising out of verbal melee at a 5 day deposition in a case involving against DuPont over a product marketed by the chemical giant.  Robert Joseph Ratiner, (pic, not Mr. Ratiner) a plaintiff's counsel was videotaped by the court reporter going wild after defense counsel reached over the table and slapped an "exhibit sticker" on his laptop computer.  Ratiner's own consultant suggested that he take a chill pill.  The court reporter is heard saying that he could not continue to work in the chaos caused by Mr. Ratiner's reaction.  The net result is that poor Mr. Ratiner drew a disciplinary action, a recommended 2 year suspension which in the Florida Supreme Court opinion should be reduced to 60 days.

Any lawyer who has put up with shenanigans at a deposition provoked by outrageous and insulting conduct by opposing counsel recognizes himself in the over-reaction of this lawyer who is paying a dear price even if it is only 60 days.  Reading between the lines, a smart aleck BigLaw lawyer, reaches across the table and applies an evidence sticker to a lawyers laptop computer--implying that the unfortunate lawyer's information will be seized and offered into evidence.  The conduct by this provocative asshole attorney for DuPont was outrageous and harassing in the extreme---unfortunately, the reaction of Mr. Ratiner was disastrous.  This should have gone no further than Mr. Ratiner recessing the deposition proceeding until the court could calm the participants.  Instead, Mr. Ratiner self-destructed and damaged his client's case and his own reputation.

I have personally been in Mr.Ratiner's shoes on numerous occasions.  As recently as last summer I asked a perfectly normal question in a 2-hour deposition and opposing counsel improperly instructed his client not to answer the question.  The behavior of opposing counsel was wrong.  After some gnashing of teeth I moved on; years ago the provocation might have escalated into a ridiculous spectacle with counsel and myself coming close to blows.  By then I was already a recovering Bad Lawyer.  Many times over the years, my hero and close friend Pat has had "road scrapes" with the sorts of characters that slap "exhibit stickers" on your materials in a breach of professional courtesy as calculated acts of provocation.

Do not take the bait.  This story stands for a very important lesson, you help neither your cause, nor your client's case by over-reacting to ridiculous deposition tactics.

Lawyers and Drugs

Two cases, from Illinois and Arizona have me thinking about Lawyers and drugs.  Courthouse News Service is reporting on the lawyer, Dodie Junkert who was busted for among other things, cocaine possession based on a search warrant that turned out to have been so flawed that a subsequent motion to suppress the evidence in the criminal case against her, was granted by the court.  Not being able to leave well-enough alone, the lucky lawyer brought a mis-guided civil lawsuit based on his claimed civil rights violations--she lost.

The second story via the Legal Profession Blog relates to a disciplinary action against a lawyer, Ronald Jeffrey Washington who was prosecuted after a security alarm at his residence brought the police who found a garage open and lots of evidence of drug dealing by the lawyer.  The Arizona disciplinary authorities imposed a 2 year suspension, after a problematic prosecution for drug dealing resulted in a conviction for the lesser included offense of simple drug possession. 

Previously on Bad Lawyer I talked about my dear lawyer friends, Carter and Nancy, now dead who were not able to permanently recover from drug addictions and alcoholism.  These diseases are cunning, baffling, and powerful comprising both the abuse of substances: alcohol and drugs and the mental obsession which distorts and disorganizes thinking--as reflected in the two accounts from this AM's blawgs.  These stories aren't unusual, they are only amusing if you can detach enough from the carnage of the lost educational and legal resources that these two lives represent.  These are two more lawyers who through their choice to engage their disease walk away from the ideals of the legal profession.  Sad.

Shiloh Pastor Pleads to Theft of $1.2 Million From HUD Earmarks


The Lousiville Courier-Journal reports that long time Shiloh Baptist Church (pic),  Pastor, Rev. Henry M. Humphrey, 72, entered guilty pleas to 11 counts in an indictment against him, including conspiracy to defraud the government, soliciting kickbacks of federal funds, submitting false reports to HUD, wire fraud and conspiracy to launder money to the tune of $1.2 million dollars. 

This story moves me because the pastor involved was a long time preacher in Louisville and his father was a preacher before him.  I can't help thinking about Sholom Rubashkin, and, yes, myself.  How do we let money and our inability to put money in the proper place control and damage our lives?  In these cases, the lives and careers disgraced by manipulation related to money are for the most part lives and careers devoted to others.  I am sad.

Thursday, June 24, 2010

Inappropriate Courtroom Attire

The New York Post has as amazing story about the alternate juror kicked out of a NYC courtroom for wearing a t-shirt that says "Who the F--- Is Kanye West? in 2 inch high letters.  Here is an excerpt from their report: 

The shirt in question, worn by 19-year-old alternate No. 3, Nneka Eneorj, as she sat in the front row of the jury box, caught the judge's eye just as the defendant was about to take the stand. 'WHO THE F--- IS KANYE WEST?'  the shirt read, the offending obscenity resting just above the wood veneer rail of the jury box.  Manhattan Supreme Court Justice Thomas Farber ordered the other jurors out of the courtroom -- directing Eneorj to stand before his bench.

'Do you think it's appropriate to wear a shirt that says 'f---' on it in my courtroom?' the judge asked, anger in his voice. When Eneorj started to protest about having a sweater on -- not that it covered the front of the shirt -- the judge cut her off, demanding, 'You're excused.'

'Sounds like a personal problem,' she sniffed of the judge as she walked out of the courthouse, indignantly. 'They'd better give me my check back,' she added, scowling, meaning her $40 payment for the day's jury service. 'You will not believe what the f--- just happened!' she gabbed into her cell phone, as two news photographers snapped away on the sidewalk outside."
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Here we go again?   I am seriously ill-liberal about courtroom attire as readers of Bad Lawyer know.   Whether we agree with what happens in any given courtroom or not, our clothing, our attitude and our behavior in court is necessarily respectful.  The courtroom is a place of justice and judgment.  Anything that fundamentally distracts from that purpose is mistaken, error and contemptuous, in my opinion. 

"He Will Be the Mouthpiece"--On the Original Law Partners

"He Will Be the Mouthpiece"--is a direct quote from Exodus 4:16, The New English Bible (Oxford, 1970).

At the Bad Lawyer, I've been planning a new entry for the Mouthpiece Hall of Infamy, possibly as early as this weekend, when my reading brought me across this fantastic moment in the creation story.  You know the story, if you've not read it in the original you probably saw Charlton Heston in the Cecil B. DeMille version of  the Ten Commandmants.  Did you realize that God created the concept of the mouthpiece?

Moses, or Moshe as the Israelites called him, is out tending his father-in-law's sheep near Mount Horeb.  He sees a bush that's aflame but is not burning up.  Moses approaches, curiously, and from the bush the Creator speaks to Moses.  Let me summarize: Moses you are going to inform the Hebrew people that "I AM"  What's more, you're going to arrange it with the Hebrews such that they are going to pack up and follow you our of Egypt.  They will take with them many of the valuables and possessions that now belong to their slave holders and get this, Moses, the slave holders will voluntarily hand over this material wealth.  Furthermore, you're going to go have a meet and greet with Pharaoh and tell him that you and my chosen people are out of there, got that?

Moses is almost but not quite dumbstruck, because, get this, he starts to argue with the Creator!  And this is where it gets good, Moses tells God, hey, I'm not very good with words!  So this is where Yahweh says, Moses, you got a brother Aaron, right?  You two are going to be partners and I'm going to tell you what I want done, then in turn, you're going to tell Aaron what I want done, capeesh?  "He will be the mouthpiece!"

Thus, the Creator of the Universe formed a partnership, Moses and Aaron, LLC and the rest so to speak is history.  Now, hear me--this is very important, all my words, all of your words, all of our insights are meaningless unless we open our hearts and minds to the 99% of reality that we do not see with our eyes.  Anything is possible!

Honest Services Law Limited by US Supreme Court

A lot of the infamous corporate greed heads: Jeffrey Skilling (pic), Conrad Black and many others--of the 1980s and 1990s, were prosecuted under what is uniformly called in the press as the "Honest Services" law.  This federal statute is a flawed bit of draftsmanship that the US Supreme Court has now limited to specific criminal activities like bribery and kickbacks.  Jeffrey Skilling's conviction under this law has now been vacated although Skilling remains convicted of other federal criminal acts and the case was remanded for further consideration and sentencing. 

Readers of Bad Lawyer know that I am no fan of these greedy, materialistic bastards--these so-called smartest guys in the room. These guys gamed the US financial system and ruined the financial lives of so many ordinary Americans who had pensions and investments lost in the chaos of the collapse of these house of cards. But I do not understand, as a matter of justice, how a person can be aggressively prosecuted with every particle of probative dirt piled on a guy, under the guise of proving a violation of what turns out to be a vague and invalid law, charge, indictment.  How is the taint of that prosecution not prejudicial as it relates to all the other charges.  If I say, Joe Flabeetz is a dirty rotten thieving bastard and he violated such-and-such vague prohibition against dirty rotten thieving bastards, how are the legitimate charges that Flabeetz took money from the petty cash drawer not prejudicially affected by the vague and invalid prohibition.  When we do this as a justice system aren't we in effect saying:  "never mind?"  Sounds like a violation of fundamental notions of fairness to me.

You're Innocent Until Proven Guilty, but Copies of the Evidence, Now That's Gonna Cost You!

The Salt Lake County DA wants you to pay her for copies of the evidence she is going to use against you.   Since you are innocent until proven guilty how is it you have to pay for copies of the evidence?  This is from Stephen Hunt's article at the Salt Lake City Tribune:

"Salt Lake County District Attorney Lohra Miller's controversial fees charged to criminal defendants for police reports, photographs, videotapes and witness interviews were struck down last week by a 3rd District Court judge.  Judge Robert Adkins ruled such 'discovery' costs must be determined by the county auditor, not by Miller. Adkins called Miller's list of charges an 'improperly adopted discovery fee schedule.'

Defense attorney Susanne Gustin had challenged the fees on behalf of her client, Steven Edward Kimball, who is charged with second-degree felony child abuse for allegedly injuring his 12-year-old stepson by putting duct tape around his head then ripping the tape off.  Gustin said Friday she may request that the judge make the Kimball decision applicable to all Salt Lake County criminal cases.  Kent Hart, executive director of the Utah Association of Criminal Defense Lawyers, said he hopes Miller will simply accept the judge's ruling in connection with other cases.

'It would be foolish of them [the District Attorney's Office] to ignore it and say it applies only to that one case,' Hart said. 'The result, if they ignore Adkins' ruling, will be to force every defense attorney who has to pay discovery fees to litigate this issue.'

Miller had no comment about the applicability of the decision to other criminal cases, according to office spokesman Mark Biljanic, who said Miller will consider whether to mount an appeal.

In any case, Biljanic insisted, the fee issue will disappear in about four months when the District Attorney's Office goes electronic and eliminates the need to make paper copies.  The fee schedule was adopted by the Salt Lake County Council last June. Miller began charging attorneys in September.  A number of defense attorneys have voiced concerns about the constitutionality of charging criminal defendants to obtain the evidence brought against them."
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Most criminal defense attorneys are pretty threadbare operators, in my experience, charging these professionals for living up to the highest ideals of our justice system with the questionable ability to obtain reimbursement sounds utterly obnoxious to me.  And as we see over and over again unless your prosecution is constitutionally appropriate society loses, the taxpayers lose.  This practice is penny wise and pound foolish.

Wednesday, June 23, 2010

The Oath

At the Wednesday, noon OurTown Lawyers Assistance Program one of the younger lawyers talked about entering a plea in U.S. District Court to tax evasion.  Many of the lawyers in the room were able to empathize and share their myriad legal burdens and perils both civil and criminal;  some tax-related, some drug or alcohol-related, and others disciplinary.  With my tax plea looming next week, I was in exactly the right place.  I am feeling enormous stress and anxiety mostly abated by the miracle of the love and support from friends and colleagues.

My former colleague and employer, Irv, and his partners "walk the walk--not just talk about charity."  They continue to support and encourage me and provide me with a great place to work, here, in OurTwon.  Irv worked as an AUSA at one point in his career and has offered a key insight about the nature of my wrongdoing in the context of my oath as an attorney.  I believe I've talked about this issue in the past, but Irv has insisted that I think about the implications of my oath as an attorney and my tax offenses. 

If you are not an attorney this may not mean much to you, but you attorneys know precisely what I'm driving at--an attorney takes an oath that says he or she will uphold the constitution and laws of the United States and of OurState.  When a lawyer commits a crime, including not filing their tax returns they violate that oath, that promise that they made.  This is very heavy, and important and one of the dimensions of loss for me, because being a lawyer meant a lot to me.  I understand why my tax offense is worse than say your tax offense assuming you are a non-lawyer. 

I shared this thought at OLAP and I hope it helps me and others to understand that when we became lawyers we were privileged.  I personally deeply regret that I violated my Oath, but I pray with all sincerity that my experience, fatih and hope provides a positive example as I go forward in my life, no matter what the future holds for me. 

Octogenarian Former-Mayor Gets 2 Years for Child Porn!

The Anchorage Daily News reports on the octogenarian ex-mayor sentenced to prison for child porn.  This is story is baffling, the story:

"An 81-year-old Hydaburg (picture of community, above) man was sentenced Monday to two years in federal prison for possessing child porn.  Robert Armour Sanderson, a former mayor of the Southeast town, was caught after he ordered two videos from an undercover postal inspector during a sting operation, according to the U.S. Attorney's Office.

A later search of Sanderson's home found 170 images of child pornography in his bedroom, the U.S. Attorney's office says. Sanderson, who had no criminal history prior to his arrest, was indicted in October. He pled guilty in April. His federal public defender says he is a community leader and has served as a guide and historian to the area for writers and anthropologists.

Hydaburg is on the southwest corner of Prince of Wales Island."
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Why?  Absolutely pathetic.  I wish there was greater detail about Mr. Sanderson, I'd like to hear his explanation for Mr. Sanderson's interest and behavior.  Child pornography as I've said repeatedly on Bad Lawyer, is not a victimiless crime. 

Speaking of the baffling nature of this awful crime, Canoe (the best source for Canadian News) reports on the London, Ontario cop charged with child porn on his lap top computer. 

Ripping Off the Elderly, How Nice!

Here's a particularly obnoxious story of allegations against a thieving lawyer.  Linda Littlefied (mugshot) is charged with exploiting elderly clients and using their credit card to vacation in Cancun, Mexico. 

According to the report at WDBO Local News, attorney Littlefield told her elderly clients that she needed the credit cards and the bills as part of the estate planning trust she was setting up for them.  Littlefield ripped off the elderly clients to the tune of $53,000+ including her Cancun trip.

Littlefield also stole money from the trusts she set up for these folks to pay the credit card accounts.

Next to abusing and exploiting children, abusing and exploiting the elderly is about a half-step in the circles of hell.

Post-script:  here is the link to the Orlando Sentinel's more comprehensive story.  Apparently Ms. Littlefield's victims suffered Alzheimer's disease.  Outrageous.

Prosecutor Goes To Jail for Direct Contempt

The New Orleans Times- Picayune reports that Judge Lynda Van Davis jailed prosecutor John Alford for direct contempt of court after he informed the judge he would not comply with her order from a May 20 hearing involving a heinous mass murder.  Direct contempt is defying an order of a court before the court.  Michael Anderson (picture) was convicted by a New Orleans jury of killing 5 teenagers;  thing is, the prosecutors did not turn over a video tape interview with the sole eyewitness or make other disclosures that dramatically impeach the prosecution's case. 

Here's the rub, this guy may have committed one of the bloodiest crimes in recent New Orleans' history which if you know anything about New Orleans, is a stretch--and now, because of prosecutorial misconduct this bad guy may end up walking to kill again.  Not good.

Tuesday, June 22, 2010

"Ken Is Corrupt, Insane and Running a Ponzi Scheme"--That's Defamation Per Se

It's been a while since we've had a good example of defamation per se, but a South Carolina jury handed down an $850,000 verdict in a case in which a Charleston County planning commission member Robert Miller claimed a Mount Pleasant (greater-Charleston area) town council member, Ken Glasson was "corrupt, insane and running a ponzi scheme" when he isn't and wasn't.  The story is reported at The Post and Courier.

This was a nasty case with all sorts of bribery and other allegations made between Mr. Miller and Mr. Glasson.  It appears that Mr. Miller was a long time power broker and developer in this fantastically beautiful part of the country and chafed at the rise of Mr. Glasson. 

Remember there is a distinction in the law between defamation per se and per quod.  Defamation holds up another to ridicule, scorn or contempt and injures one in their reputation.   Per se means that the wrods themselves need no further explanation to accomplish the defamatory purpose while per quod means that the defamatory words require further explanation.  This story is a perfect illustration of defamatory words, per se, calling someone a criminal who is not a criminal or insane certainly achieves the defamatory bullseye.  If Mr. Miller had falsely claimed Mr. Glasson was practicing law and it turned out Glasson lacked a law license, the explanation that Mr. Glasson lacked a law license would constitute defamtion per quod particulalry if this caused Mr. Glasson to be investigated by the local bar association for practicing law without a license.  In fact, an element of an action for defamation per quod, is proof of actual damages--as when the subject of the defamation incurred attorney fees to defend himself.

Oh, by the way check out the contrary result where a NY doctor and his lawyer were ordered to pay sanctions for bringing frivolous defamation actions against another doctor.

Typo of the Day Laywer for Lawyer

Being the "blawger"-king of typos, one of my favorite odd stops in the cyber-universe has a germane post, the Librarian's Typo of the Day explores "Laywer for Lawyer."

Small Law Getting It Right!

From the annals of Small law: A tough Judge in Cleveland is getting tough on real estate investment thugs.  Judge Raymond Pianka of the Cleveland housing court, imposed a $13 million dollar fine on two inter-related real estate investment companies.  This is from Sandra Livingston's  account at Cleveland.com:

"In a pair of blistering decisions, [Judge] Pianka fined Interstate Investment Group $11.9 million and Paramount Land Holdings more than $1 million. The cases involve major violations at eight properties and less significant ones at five others. The earliest complaints date to January 2008.
[Judge] Pianka also criticized the city of Cleveland for recommending vastly lower fines, and the companies for their offer to contribute no more than $100,000 toward the resolution of their property violations.

In the Interstate decision, [Judge] Pianka wrote: 'Defendant's (and the City's) proposed sentences would allow Defendant to treat its neglect of its properties and the laws of the City as a mere cost of doing business and send the message to others that they too may benefit from wholesale disregard for the laws of the City.'

Pianka wrote that both companies are in the for-profit business of buying and selling distressed property without any intention to repair it.  [Judge Pianka] also said that in addition, Interstate and Paramount had each failed to pay six-figure penalties for being no-shows in several housing court cases, and failing to pay property taxes. Conditions at some houses were so bad that the city demolished them, Pianka wrote, but has yet to be reimbursed for the costs." 
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This is a great story about a good Judge getting angry at exactly the right target, absentee land owners snapping up distressed properties and letting bad get worse.  Who pays, the taxpayers and neighbors who have to deal withe the deterioration, loss of neighborhood property values and crime. 

Sholom Rubashkin Sentenced to 27 Years

The Des Moines Register is reporting that the Kosher food processor, Sholom Rubashkin will be sentenced later today, to 27 years in prison for the financial offenses (i.e. he went too far in arranging loans to keep the family kosher food business afloat and) federal prosecutors demanded "life in prison."  The sentencing memorandum of local federal prosecutors caused an outcry among some of thisi country's leading former prosecutors including former Attorneys General (including: Janet Reno, William Barr, Richard Thornburgh, Edwin Meese III, Ramsey Clark and Nicholas Katzenbach) of the United States.  Since Mr. Ruabshkin is 51, the 27 year prison time gives the local federal prosecutors their wish. 

As reported on Bad Lawyer, Mr. Rubashkin's conviction is problematic, since the federal prosecutors were allowed to make assertions during his trial on the financial crimes about the "general lawlessness" of Mr. Rubashkin's business practices while Mr. Rubashkin was prevented from defending against various allegations includng child labor crimes he did not commit.  It may turn out that Mr. Rubashkin will obtain relief by way of a new trial or a Presidential pardon or commutation.  The New York Times, this morning did an excellent and thorough look at the inequitable treatment of Mr. Rubashkin vis-a-vis Jeffrey Skilling and Dennis Koslowski who received relatively reasonable and moderate sentences for financial offenses seemingly far more fraudulent and self-seeking than Mr. Rubashkin's misguided manipulations to obtain credit to keep his Kosher food processing business open.

I do not understand dietary laws, not the rhyme nor the reason for these laws apart from reading and respecting the Torah, the Talmud and the Zohar and the faith of pious religious believers.  I do know that observing and obeying dietary laws is very serious business among my Jewish and Islamic brothers and sisters who I regard as righteous.  Mr. Rubashkin's situation is Rubashkin's creation just the same as my problems are the product of seeds I planted.  I strongly empathize with him and his situation and I wish Mr. Rubashkin and his family nothing but blessings and light.  Out of great darkness sometimes there is an opportunity for great light.

Compare this story with what we talked about yesterday when Bad Lawyer looked at the story of fabulous wealth transfers, including billions of dollars that would normally be due the federal government under normal estate tax laws.  These amounts are dust in the wind because our lawmakers played political games with the federal taxing scheme.  Ultimately federal building projects, roads, buildings, maybe even court houses will be named after those law makers while Mr. Rubashkin who tried to keep a religious way of life operating, may still be sitting in a penitentiary.  I know these are unconnected matters, but we should not lose sight of the notion of genuine justice, particularly when it relates to the merely material world.

Monday, June 21, 2010

Conchita's Millions--the Material World

Conchita (pic, left) lives in an $8 million dollar mansion in an exclusive Florda Island community supported by a $3 million dollar trust and by millionaire servants.  Conchita is the dog.  Her owner, Gail Posner (also pic, left) died leaving the bulk of her estate which she inherited from her wealthy corporate raider father, Victor Posner to the her beloved chihauhau. 

Gail's only son, Steve Carr, is challenging the will under he inherited $1 million dollars and Conchita takes the cake, so to speak. The story is at the Miami Herald and is a great meditation on wealth and the material world. 

I know people with a lot, with many material blessings and I know many remarkable people who earned every dime. While I know many lawyers and businessmen and women who inherited "opportunites" in government, law or industry--I've not known many beneficiaries of purely inherited wealth like Gail Posner.  Like you I read about great fortunes and maybe like you, I doubt that such wealth is terribly marvelous for the beneficiaries, maybe I'm wrong--but, I suspect that there is great suffering.  This appears to have been the case for Gail Posner. 

Recently, the New York Times reported on the glitch in the Federal Estate Tax law that is allowing a multibillion dollar fortune of Dan L. Duncan (pic, right) to pass to Duncan's descendants untaxed by the federal government which will lose billions of dollars on the wealth transfer from the guy that earned it to those who share his DNA.  What in our national character tolerates this massive wealth transfer from one generation to the next without insisting on substantial taxation for the common benefit?  While I understand the idea that a capitalist who amasses a great fortune should be able to do what they wish to do with their money while living, explain to me why these fortunes should pass undisturbed to subsequent generations?  What benefit is conferred on those who do not earn wealth, on others?  Great fortunes do not arise from air, they are derived from the social and commercial opportunites created by societies and economies--why shouldn't a substantial portion of these fortunes revert to those societies and economies for the benefit of all? 

We occupy a material world, where fabulously wealthy people wallow in ridiculous objects of desire while fantastically impoverished people barely eke out life on the barren and polluted leftover remaining to them.  Consider the absurdity, and marvel.

Arizona Republic's In Depth Resource on Sheriff Joe

The Arizona Republic has posted its in-depth look at Sheriff Joe Arpaio.  This is a tremendous resource for anyone interested in a local law story that's gone global.  There are just so many facets to this man, his constituency, the rule of law, and now international migration and relations.  Bad Lawyer has been obsessed with this story since the inception of the blawg, and here in one place are the local mainstream accounts of Arpaio's reign. 

Crazy Sally, the Former Client--Crazy Lawyers

Crazy Sally (not her real name) is a former client who occasionally hangs around places I continue to frequent.  This AM Sally was at the "Bucks, where she habituates now that she is nearly homeless.  This morning Sally harangued my pals and myself--about insane shit while working in observations about how I was dressed, how I am a disgraced attorney, how when I represented her she had to fire me because I "ignored her" as I was "doing this morning." Sally once worked as court reporter, here, in OurTown.  At one time she was pretty, hyperactive, and very bright.  Sally was briefly a client and she's quite correct, I was not able or willing to meet her emotional neediness. She hired another attorney.  I do not know anything about the outcome of her legal matter.  I don't talk about the details of her legal matter with anyone, even in this blawg.

I am motivated to talk about Sally, this morning because I'm pretty comfortable talking about how I deal with former clients.  I am honest with former clients about my disciplinary status.  Most former clients shrug their shoulders and say very supportive sorts of stuff, and express misguided outrage at my situation.  Sally is not one of those people.  First of all she is someone with specialized knowledge of the people and places in the profession here in OurTown, secondly she is insane.  I feel terrible for the private hell she lives in--and, I am sickened by the posse of exploitive types that hover around her for God knows what.

This morning the ABAJournal.com reports on a veteran child abuse prosecutor in Brooklyn, NY who has drawn complaints about her rude and abusive behavior among employees in her office.  When I read this piece I made connections about myself, about a former OurTown prosecutor Melanie Blanc (again, not her real name) who lost her mind and left the profession.  Melanie left the profession after years of representing people like Crazy Sally, and hundreds of sexually abused and exploited children. 

I offer no excuses for my behavior,--I had fantastic mental health counseling available to me--but those of us who do or did this work pay a mental health price. 

This morning I was able to detach, to ignore poor Sally's attempts to interact with me, knowing full well I have nothing constructive to offer her apart from my prayers that God will grant her grace in this life and in the 99% of reality that I don't see and I don't understand.  I once believed that through the sheer force of my will that I could fix certain things in the world, I couldn't even fix myself. 

God's will, not mine be done.

Judge Orders Lawyer to Apologize to Cop for "Rough Language" in Cross-Examination

Apparently at least one municipal court judge in the Greater Minneapolis area is a sensitive man.  A municipal district court judge,Gregory Galler ordered a local attorney to apologize to the police officer after the local attorney David McCormick cross-examined asked the officer whether the officer was trying to "cover [his] ass" during a point in the cross-examination.  According to a report at the Minneapolis Star Tribune, the Judge thought this lawyer's salty language went too far;  this is from Rochelle Olson's report:

"When criminal defense lawyers cross-examine police officers on the witness stand, it's not unusual for the questioning to become aggressive and testy. But in Washington County earlier this month, District Judge Gregory Galler (pic) decided that defense attorney David McCormick went too far when his questions suggested an officer was being less than truthful.  Galler ordered McCormick to write an apology to the officer for "impugning the officer's integrity," according to court documents.

McCormick refused, missing Galler's original deadline, which passed Tuesday. On Wednesday, Galler indefinitely extended the deadline and notified McCormick through his lawyer, John Brink, whom McCormick hired in case the judge held him in contempt of court.

McCormick said he's preparing to file a motion seeking to have a new hearing on his client's drunken driving case, with a new judge. McCormick claims Galler was 'biased in favor of the police witness' and must recuse himself.  Reached in his Stillwater chambers, Galler confirmed that he "might have" ordered the apology and asked, "'ow has that become a story?' When told the demand seemed unusual, Galler said, 'Not really."'He declined to comment further.

Other judges, defense lawyers and prosecutors say the demand was highly unusual.  Joe Friedberg, a criminal defense lawyer for 45 years, said, 'If a judge ordered me to do that, I would tell him to go have intercourse with himself.' Friedberg said he has often called cops liars and says Galler is 'so far out of line, I can't believe it. He should apologize for asking for an apology.'"

[In the Follow Up Story, Judge Galler explainst that the Order to apologize related to the vulgar language, Miss Olson's report continues]

"A judge who ordered a lawyer to apologize to a police officer sent a letter Thursday to clarify, saying he'd objected to the defense attorney's use of profanity in his closing argument, not his vigorous cross-examination of the officer. Washington County District Court Judge Gregory Galler said he never planned to hold David McCormick in contempt if the lawyer declined to apologize. Galler faxed the letter Thursday afternoon to McCormick's lawyer, John Brink. A spokesman for the state courts e-mailed the letter to the Star Tribune. Galler's letter said he wanted to clarify 'misunderstandings.'

The letter came a day after [Judge]Galler granted Brink's written request to extend the deadline for the apology. The judge made the extension indefinite. McCormick has said he won't apologize for doing his job and will seek a new judge to hear his client's drunken driving case. The lawyer said that, in his closing argument in court, he referred to the police officer's actions after an arrest as an attempt to cover his own 'ass.' McCormick said the judge chastised him after the closing for 'impugning the officer's integrity' and ordered him to apologize to the officer by letter.

McCormick said Thursday that if the judge objected to his use of profanity in court, 'Then why I am apologizing to the cop?'

[Judge] Galler doesn't remember it that way. 'I told Mr. McCormick that I knew he did not mean to improperly impugn the officer,' he wrote. 'I knew that he was just doing his job in advocating for his client.' He said if he had intended to hold McCormick in contempt, he would have issued a written order. Instead, Galler said, he believed an apology to the officer was 'something that needed to be done"'as a 'simple matter of civility and decorum.' Galler said he understands passions run high in courtrooms and parties disagree, but 'using profanity in court, even mild profanity, steps past the bounds of what an officer of the court is allowed to fairly do.'

Profanity is commonplace in Hennepin County courtrooms, although usually it comes during questioning of witnesses, not from lawyers in closing arguments. The transcript of the hearing last week is not yet available. Neither the court reporter nor the prosecutor returned calls Thursday.Profanity is commonplace in Hennepin County courtrooms, although usually it comes during questioning of witnesses, not from lawyers in closing arguments. The transcript of the hearing last week is not yet available. Neither the court reporter nor the prosecutor returned calls Thursday.
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This may seem silly or trivial but this story sheds light on a common problem in small law situations--often times the police seem like they are "clients" of the court. 

This is because the elected or selected judges of these small courts continually see the same law enforcement representatives as witnessed in their courtrooms.  I have seen Judges consciously, or I'd rather like to think, unconsciously--begin to view themselves as friends or even as colleagues of the law enforcement officers who appear regularly before them.  These judges may even have formed an opinion as to the officer's credibility or reputation based on observing the officer testify in previous matters.  If the judge is in an elected position alienating the police is not a politic move as far as the judge is concerned.  So you get a "captured" and less than independent judiciary.  Net result, really aggressive cross-examinations designed to challenge the sweetheart relationship between witness and judge. 

Judge Galler's order while directed at an attorney who was acting rude and inconsiderate--in the Judge's opinion, suspiciously betrays this too close relationship between this judge and law enforcement.  The defense attorneys are rightly reacting to an order betraying bias.  Which is not to say that any judge needs to tolerate contemptuous conduct in his or her courtroom but contempt is not the same as aggressive cross examination or the pointed use of the expression "cover your ass."

Saturday, June 19, 2010

Bad Lawyer Is Off Today Celebrating His Daughter's High School Graduation, Posts Will Return Monday AM

The Bad Lawyer's 17 year old graduated from an OurTown high school last Sunday and today the Blond Super Lawyer and I are throwing a graduation party.  Preparation for the party, the party and the clean up will keep me from maintaining my normal schedule of posting, but I already have some great stories from these mean legal streets refracted through my sordid past life--to share with you Monday AM.  Have a great weekend

Friday, June 18, 2010

Next Witness, Counselor . . . What, Your Lawyer's Been What . . .?

That's right the final witness was on the stand in a Franklin County Court of Common Pleas (Ohio) trial on Attempted rape charges when the Ohio Supreme Court suspended the defense attorney Gerald T. Noel for two years according to a report in the Columbus Dispatch.  There's no indication on how the case was going, but while I'm sure this was an incredible inconvenience for the court, the jury, and participants, it may turn out to have been a lucky break for the defendant since the suspension was essentially for incompetence in prior legal matters handled by attorney Noel.  This is from John Futty and James Nash's story:

The final witness was on the stand yesterday when a judge halted the trial of a Columbus man accused of attempted rape because his attorney wasn't supposed to be practicing law. Judge Kimberly Cocroft of the Franklin County Common Pleas Court called a recess after the prosecutor's office told her that the Ohio Supreme Court had suspended the law license of Gerald T. Noel Jr. that morning.  Cocroft scheduled a hearing for 9 a.m. Monday to determine the next step, which could be a mistrial. She sent jurors home without telling them the reason for the recess. It might have been the first time a trial in Ohio was disrupted by a lawyer's suspension, said Bruce Campbell, who has been counsel for the certified grievance committee of the Columbus Bar Association since 1988.

Noel was defending Vincent R. Griffin, 51, who is charged with attempted rape, felonious assault, kidnapping and abduction. The jury was seated Monday and began hearing testimony Tuesday.  The Supreme Court suspended Noel's license after two other clients complained that he had botched their cases. The court also said he ignored requests for information from the Bar Association and the court's Office of Disciplinary Counsel about his dealings with the two clients.
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The visual I have here, is of the Rapture--and I'm not trying to be cute.  It's like you're going along in life and you're bodily lifted from the world.  It's a little bit like how I felt, yesterday as I was leaving my job.  I rode the elevator down with an older lawyer, Bobby Bottomfeeder with whom I had had a difficult matter a number of years ago.  Bottomfeeder eyed me warily while chatting with his associate and a secretary.  When we reached the lobby, I let the three of them exit the elevator and I followed behind.  The senior lawyer, now with his back to me, launched into telling the associate, "did you see that guy [me] on the elevator . . .?"  It was if I were dead. 

It is an interesting sensation to be removed bodily from your profession, it must be incredibly bizarre to be mid-trial when it happens. 

Near the end of my active law practice and as I related, here, on Bad Lawyer, I was involved in a workers' compensation defense for a food manufacturing corporation located near the town of WhiteBean, OurState. My defense resulted in a judgment for my client against the claims of "Big Dennis."  It's actually a pretty funny story if you go back and look at the narrative.

Just before my license was suspended I completed the briefing on the appeal pursued by Big Dennis' lawyer.  I learned a couple of weeks ago that my client won the appellate case, and the opinion upheld all of the legal and factual assertions made by me in my role as the defense attorney in that case.  But reading the opinion, it's as if I had been bodily removed from the world. The appellate court's opinion reflected a year-and-a half of effort mentions me not.  I am not listed in anyway as the attorney for the corporation that prevailed, none of the defenses documented in the opinion that I advanced or transcribed and cited questions I asked in the underlying proceeding are attributed to me, and I am not mentioned as author of the brief. I evaporated. Like Elijah, I disappear in a chariot.

Kabbalists talk about the concept of the klippot, which are the shell-like manifestations of ego: anger, selfishness, control, judgment, and pride that build up around us sometimes so dysfunctional as to actually create crippling phobias preventing all loss of light.  When I first returned to work in this building I worked in for a quarter century, as a lawyer, I was so filled with anxiety I could barely leave my office during the work day to get coffee for fear of running into former colleagues I was sure would look at me with contempt.  The challenge is to shatter these shells, these klippots. We do this through opportunities to crush our ego, I alluded to this in the post about "pie-in-face" and I noticed that one of the anonymous commentators there really addressed the challenge before me.  Now I walk freely from this office--yeah, I screwed up;  yeah, I deserve the consequences; yeah, there are people who judge me harshly, but I've been cheered by the love and empathy I receive from many former peers. 

Life is only going to get more difficult in the coming weeks.  I promise to keep my eyes open and tell you about it.