Monday, December 5, 2011

Witness tampering in Sandusky case?

A lawyer for one of the alleged victims of Jerry Sandusky, the former Penn State football coach who now faces 40 counts of child sex abuse, says Sandusky's long New York Times interview raises new questions about whether he may have attempted to influence witnesses just before he got indicted. NBC's Michael Isikoff reports.

Sandusky's dinner with alleged victims raises new legal questions
By Lisa RiordanSeville and Hannah Rappleye
NBC News

While under investigation by a criminal grand jury for allegedly sexually abusing young boys, Jerry Sandusky said he spoke to and even dined with men now identified as his victims. The 67-year-old former Penn State assistant coach accused of sexually abusing young boys for more than a decade holds up these encounters as proof of his innocence, but a lawyer for at least one of the victims believes they could be criminal.

“One of the questions that raised in my mind, ‘Was this an effort on his part to tamper with witnesses?’” said Howard Janet, a Baltimore attorney representing the man known in the grand jury report of Sandusky as Victim 6. “Was it intended as a way to influence the public or the prospective jury pool?”

In early November, Sandusky was charged with 40 counts of sexually abusing boys over a period of about 14 years. But the community knew of the investigation months earlier.

The story went public on March 31, when the Patriot News newspaper broke the story that a grand jury had been convened to look into allegations that Sandusky abused a 15-year-old Clinton County, Pa., boy, now known as Victim 1.

The following day, Sandusky’s lawyer, Joe Amendola, issued a statement saying that his client was prepared to fight.

“Should the allegations, as set forth in today’s newspaper article eventually lead to the institution of criminal charges against Jerry, Jerry fully intends to establish his innocence and put these false allegations to rest forever,” he said.

Interviews with lawyers and the grand jury report show that in the months that followed, Sandusky made several attempts to contact boys who had participated in the charity he founded -- the Second Mile – and who later testified before the grand jury, prompting Janet to question whether Sandusky tried to sway the outcome of the investigation.

Witness tampering in the state of Pennsylvania is defined as any act with the intent to intimidate a witness or victim to “refrain from reporting a crime, withhold or give false or misleading information, or to ignore or evade requests for information or a summons.”

Under state penal codes, witness tampering is considered equal to the most serious offense a defendant is charged with. Among the charges against Sandusky are multiple first-degree felonies, which carry maximum sentences of up to 20 years in prison.

Sandusky has not been charged with tampering or intimidation of witnesses.

A 'reunion' dinner
In July, Sandusky called Victim 6 and asked him to dinner. Sandusky framed it as a “reunion” of former Second Mile children, Janet said. Police asked the alleged victim to wear a wire, Janet said, but he eventually decided not to because he was nervous.

Victim 6 testified before the grand jury that Sandusky showered with him on the Penn State campus. Sandusky was investigated in 1998 after the boy’s mother reported the incident to the police. Sandusky at the time admitted that he had showered with the boy – as well as another youth whose name surfaced in the subsequent investigation -- and was advised by a Penn State University detective not to do it again. The district attorney closed the case.

On the night of the July dinner, Victim 6 said he met Sandusky at his home then continued on, along with Sandusky’s wife, to a local restaurant. Janet said his client was “surprised” to find no other former Second Mile children he knew among those at the restaurant, but he finished the dinner and reported back to the police.

In an interview with NBC, Janet said it was “inconceivable” that Sandusky did not know he was under investigation at the time. “It was public knowledge and it was widely reported,” he said.

According to Amendola, Sandusky’s lawyer, Victim 2 was also at the dinner. Victim 2 is the boy who Penn State assistant coach Mike McQueary testified to seeing being raped by Sandusky in the showers in Penn State’s Lasch Football Building in 2002. Victim 2, however, has not been identified by prosecutors and did not testify at the grand jury.

Amendola told reporters in November that a man he believes is Victim 2 had appeared in his office weeks before to say he had no sexual contact with Sandusky.

Amendola said that both Victims 2 and 6 maintained a relationship with the Sanduskys in recent years, including visiting their home and attending other dinners. The July dinner, he said, was friendly. “Neither of them had any knowledge 2 or 6 had been or were going to be questioned” by the grand jury, and there was no mention of the investigation, Amendola wrote in a statement to NBC.

“Jerry and Dottie have maintained positive contact with 2 and 6 as well as many other kids they helped who have grown into adulthood over the years,” he said. ”They are both deeply saddened and perplexed by the allegations.”

Sandusky and his wife also reached out to at least one other alleged victim prior to his testifying, according to the grand jury report. Victim 7, a former Second Mile participant who Sandusky allegedly met around 1994, told the grand jury that weeks before his testimony, Sandusky, his wife, and an unidentified friend left several messages on his voicemail. It had been nearly two years since he last spoke or had contact with Sandusky. Victim 7 said he did not return their calls.

Sandusky confirmed to the The New York Times that he had contacted at least one of his accusers but did so believing he would serve as a character witness. He said he did not know the prosecution had listed the individual as a victim.

An unorthodox defense strategy
Sandusky’s defense has so far been unorthodox. He spoke live to NBC’s Bob Costas following his arrest and last week gave an extended interview to the New York Times.

Asked by Costas if he was sexually attracted to young boys, Sandusky said, "Sexually attracted, no -- I enjoy young people, I love to be around them."

The New York Times revisited the comment last week in an extended, four-hour interview in which reporter Jo Becker asked Sandusky about his answer to Costa's question.

"If I say, no, I'm not attracted to boys, that's not the truth because I'm attracted to young people, boys, girls," Sandusky said.

Amendola, sitting nearby, jumped in. "Yeah, but not sexually, you're attracted because you enjoy spending time..." he said.

"Right, I enjoy, that's what I was tryin' to say, answer that," Sandusky clarified. "I enjoy spending time with young people. I enjoy spending time with people."

Thursday, December 1, 2011

Stutz Artiano Shinoff & Holtz answers special interrogatories

It's always instructive to learn how a big, successful law firm answers special interrogatories.

Rancho California RV Resort Owners Association v. Outdoor Resorts of American, Inc.


STUTZ, ARTIANO, SHINOFF & HOLTZ. A Professional Corporation.
Robert R. Templeton, Jr., Esq., State Bar No. 116557.
Casey Pope, Esq

Supreme Court will hear disgraced journalist’s moral character case

It's perfectly obvious to most of us that Stephen Glass would fit seamlessly into many, perhaps most, law firms. Why is the State Bar Association pretending that respect for the truth is a requirement for a lawyer's license? It isn't. It absolutely isn't.

Supreme Court will hear disgraced journalist’s moral character case
By Nancy McCarthy
California Bar Journal
December 2011

For the first time in 11 years, the California Supreme Court agreed to hear the case of a would-be lawyer denied admission to the State Bar because of moral character issues. The bar petitioned the court to consider the case of Stephen Glass, a disgraced former journalist who won national infamy for making up whole or parts of stories and now wants to practice law in California. Although the Committee of Bar Examiners (CBE) denied Glass admission on moral character grounds, it was overruled by both a State Bar Court hearing judge and a split review panel that said he should be admitted. The Supreme Court granted review last month on a petition from the CBE.
Stephen Glass

“Journalism and law share core fundamental principles ― those of common honesty and trust,” wrote bar attorney Rachel Grunberg in the petition seeking review. She added that Glass “literally shattered these basic values in the journalism profession, without redemption.” The Committee of Bar Examiners believes Glass “has not established the requisite showing of rehabilitation, given his past misdeeds that have lingered without redemption, to be certified as an attorney” in California, Grunberg wrote.

Glass was once described by Vanity Fair as “the most sought-after young reporter in the nation’s capital, producing knockout articles for magazines ranging from The New Republic to Rolling Stone.” The magazine went on to explain that Glass spun “a breathtaking web of deception that emerged as the most sustained fraud in modern journalism.” The New Republic fired him, finding fabricated material in 27 articles bearing Glass’ byline at the magazine.

It wasn’t until 11 years after “he was outted as a fraud,” Grunberg wrote, that Glass finally compiled a comprehensive list of all of his fabricated articles, totaling 42. He attended Georgetown law school while still working at TNR and authoring false articles, he took and passed the July 2000 New York bar exam, applied for a moral character determination there in 2002 but withdrew after learning his admission would likely be denied, published a book and appeared on 60 Minutes in 2003, and took and passed the California bar exam in 2009.

Glass argues that his current moral character makes him eligible to become an attorney and that he presented “overwhelming evidence” of his rehabilitation. Indeed, Martin Peretz, the editor of The New Republic, which printed the lion’s share of his fabrications, flew from Massachusetts to California to testify on Glass’ behalf before the State Bar Court. Glass said in a submission to the Supreme Court that he was forgiven by other editors as well, including Jann Wenner of Rolling Stone and Lewis Lapham of Harper’s.

Glass presented more than 20 witnesses who testified to his “good moral character,” apologized publicly for his actions, underwent therapy and performed extensive pro bono work. His misconduct ended when he was 25, he said, and his values have changed.

Grunberg dismissed virtually all his arguments and said true rehabilitation means an unblemished record ― something Glass cannot provide. She said he made misrepresentations to the New York bar when trying to win admission there, his pro bono work was part of his regular duties as a paralegal for a Los Angeles law firm, and his remorse came more than a decade late, only “when it suited him, and not when it was most needed by his victims.”

Further, the bar said Glass profited from his misdeeds, earning $190,000, less agent’s fees, from publication of The Fabulist, a fictionalized account of his lies. Glass said he used the profits for his legal fees and therapy, but the bar said the book proceeds were used “exclusively for his own personal benefit.” The concept of profiting from wrongdoing “appears inconsistent with the notion of moral rehabilitation,” Grunberg wrote, adding that Glass appeared to be “cashing in on his infamy.”

Arthur Margolis, Glass’ attorney, declined to comment. Glass works as a paralegal at Carpenter, Zuckerman & Rowley LLP in Los Angeles.

No date for oral arguments has been set, but Glass has 45 days from the date of the Nov. 16 court order to file a supplemental brief. The bar then has 15 days to file a reply.

Sunday, November 20, 2011

Did the executive director and the vice-president of the California State Bar divert funds to a sham charity?

Orange County Investigative News Agency "Voice of OC" Asked to Produce all Documents Submitted to the Internal Revenue Service Within the Past Three Years
by lesliebrodie Pro

Orange County's Nonprofit Investigative News Agency "Voice of OC" has been served with a demand to produce all records it had submitted to the Internal Revenue Service within the past three years, The Leslie Brodie Report has learned.

The request followed shortly on the heels of a letter informing State Bar Executive Director Joe Dunn about the existence of convenient circumstances surrounding sham charity CaliforniaALL and his publication -- "Voice of OC."

More specifically, and according to a source, the fact that some individuals and entities involved in the creation of sham charity CaliforniaALL and the subsequent unlawful transfer of $780,000 from the Cal Bar Foundation to CaliforniaALL were also involved in assisting Mr. Dunn with the creation of "Voice of OC", has caused the source to entertain the thought that "Voice of OC" may have been a recipient, at least in part, of the $780,000 misappropriated from the State Bar of California.

CaliforniaALL, a 501(c)(3) charitable entity, was the brainchild of Ruthe Ashley (a Diversity Officer at CalPERS and Vice-President of the State Bar of California) and Peter Arth Jr., Chief of Staff to CPUC President Michael Peevey.

In its brief existence from 2008 to 2010, CaliforniaALL collected close to $2 million from utility companies (AT&T, PG&E, Verizon, Sempra), including a sub-rosa contribution of $769,247.00 from the State Bar of California Foundation (DBA California Bar Foundation.)

CaliforniaALL was abruptly dissolved in June of 2010...

A strip mine apparently isn't a mine

Sukut Construction v. Rimrock CA LLC (Cal. Ct. App. - Sept. 30, 2011)
Thoughts on recent Ninth Circuit and California appellate cases from Professor Shaun Martin at the University of San Diego School of Law.
California Appellate Report
Shaun Martin
October 20, 2011

A strip mine apparently isn't a mine.

This according to an opinion that -- perhaps deliberately -- nowhere uses the term "strip mine." Preferring instead to call the property here a quarry. Because holding that a strip mine isn't a mine would seem even more counterintuitive. (The terms are essentially synonyms, though often suggest what types of rock/minerals are sought from the mine. Quarries often yield building rocks/gravel and dimension stones, whereas strip mines often yield coal, copper, etc.)

Notwithstanding how we use these terms, I might think that the Court of Appeal's decision made sense if the quarry/strip mine at issue here was just dredging out sand or landfill or the like. But when you're deliberately taking out certain types of rocks -- i.e., granite, pebbles, etc. -- it seems to me that it's a mine. Even without an opinion of the Attorney General that, as here, suggests that a quarry is indeed a mine. Something that's entitled to deference.

It's admittedly an issue that involves contextual statutory interpretation. But if it looks like a mine, gets rocks like a mine, sounds like a mine, and uses explosives like a mine, then it's probably a mine.

Tuesday, November 8, 2011

San Diego D.A. finally charges attorney Patricia Gregory for stealing from clients

Lawyer charged with fraud after Watchdog report
Prosecutors allege she took more than $100,000 from 3 clients
By Jeff McDonald
September 29, 2011

Carlsbad attorney Patricia Gregory was charged Thursday with 11 felonies for allegedly stealing more than $100,000 from clients and practicing law without a license.

The charges came less than two weeks after The Watchdog included Gregory as the leading example in a report about lawyers whose cases at the State Bar Court did not result in them being prosecuted criminally.

According to the six-page complaint, Gregory stole more than $100,000 from three clients in 2007 and 2008. She also wrongly practiced law or advertised legal services earlier this year, the complaint says.

Gregory was charged with five counts of fraud, five counts of grand theft and one count of unauthorized practice of law. She faces up to four years in state prison on each count, and a $10,000 fine. She was ordered to appear in court Oct. 18.

Gregory was recommended for disbarment in March after the State Bar Court concluded she improperly withdrew more than $112,000 from a client trust fund. Her license is invalid during an appeal of the recommendation.

She told The Watchdog that there are inaccuracies in the criminal complaint, that she was entitled to every dollar she withdrew as legal fees, and that the alleged victims received more legal services than they paid for.

“You cannot ‘steal’ something in which you have an interest,” Gregory said by email.

Former client Denise Doll, one of the three victims identified in the complaint, said she was pleased to learn of the charges but said it should never have taken so long to file a criminal case.

“This woman has damaged me greatly,” Doll said. “It’s been over two years.”

Luwain Ng is another of the alleged victims. According to a civil suit she and Doll filed, Gregory stole the proceeds of the family home that was sold when Ng and her husband divorced.

“I plan on attending every single hearing,” Ng said. “I want my money back. I’ve been waiting since 2008. I want justice served.”

Ng said she would rather have seen Gregory arrested and jailed instead of being issued a court date. She said she is afraid her former lawyer will flee prosecution.

“What then?” Ng asked.

According to Gregory’s website, she used to work for the District Attorney’s Office in child support enforcement. The office declined to discuss its prosecution strategy but said Gregory was treated like any other defendant.

“Attorneys are treated no differently than any other defendant,” said Tanya Sierra, a spokeswoman for District Attorney Bonnie Dumanis. “In terms of her case, we can’t comment because it is open.”

Gregory’s was one of four cases in a report by The Watchdog earlier this month about lawyers whose misdeeds are adjudicated by the State Bar Court but not prosecuted criminally. The District Attorney’s Office said many factors come into play, including different standards of proof in bar court and criminal court.

Thursday, November 3, 2011

Police Won't File Charges Against Texas Judge Caught on Video Beating Daughter

This undated image provided by the Aransas County, Texas Court-at-Law webpage shows Aransas County Judge William Adams.

Police Won't File Charges Against Texas Judge Caught on Video Beating Daughter
November 03, 2011
Associated Press AP

A Texas family law judge whose daughter secretly videotaped him savagely beating her seven years ago won't face criminal charges because too much time has elapsed, police said Thursday.

Aransas County Court-at-Law Judge William Adams likely would have been charged with causing injury to a child or other assault-related offenses for the 2004 beating of his then-16-year-old daughter, but the five-year statutes of limitations expired, Rockport Police Chief Tim Jayroe said.

"We believe that there was a criminal offense involved and that there was substantial evidence to indicate that and under normal circumstances ... a charge could have been made," Jayroe said. He said the district attorney determined he couldn't bring charges, and that police would discuss the case with federal prosecutors even though he doesn't believe federal charges would apply.

Hillary Adams, now 23, posted the 8-minute clip on YouTube last week that shows her father viciously lashing her with a belt and trying to force her to bend over her bed to be beaten despite her wails and pleas to stop. The clip had received more than 2.4 million hits as of Thursday, and police began investigating Wednesday after hearing from concerned citizens.

GRAPHIC WARNING: Click here to see the video

William Adams, 51, issued a three-page statement Thursday saying his daughter posted the clip to get back at him for telling her he would be reducing the amount of financial support he gives her and taking away her Mercedes. The statement did not include an apology for the beating, but he told Corpus Christi television station KZTV on Wednesday that the video "looks worse than it is," that he had already apologized to his daughter and that he was just disciplining his child for stealing.

Hillary Adams says her parents were angry because she had downloaded pirated content online, and that she turned on the camera because she sensed something was going to happen.

William Adams, who presides over child abuse cases, is still being investigated by the state's judicial conduct commission and the Texas Department of Family and Protective Services, which on Thursday requested that he be removed from its cases until the investigation concludes.

Patrick Crimmins, a spokesman for the agency, declined to elaborate on the exact nature of the investigation. But he said that in general, the agency would only investigate a case in which a suspected abuse victim has already reached adulthood if there are still children in the home who could be at risk. Adams was granted joint custody of his 10-year-old daughter in his 2007 divorce.

There are no allegations of alleged abuse by Adams against his younger daughter, who primarily resides with her mother, Hallie Adams. Crimmins declined to say whether his agency is investigating the parental fitness of Hallie Adams, who lashed Hillary once during the 2004 beating.

Crimmins said his agency ordinarily wouldn't disclose that it is investigating someone, but that it did in this case because the investigation is the reason it requested that William Adams be taken off its cases.

Jayroe said that police did not interview the younger daughter, but asked both Hallie and Hillary Adams about it and there was no indication of abuse of the younger daughter.

In his statement Thursday, Adams said he would "respond" to all investigations. As Aransas County's top judge, he has dealt with at least 349 family law cases in the past year alone, nearly 50 of which involved state caseworkers seeking determine whether parents were fit to raise their children.

County officials confirmed that Adams will not hear cases related to Child Protective Services for at least the next two weeks. And the top administrator in Aransas County cast doubt on whether Adams could credibly return to the bench.

"I would think it would be very difficult," said Aransas County Judge C.H. "Burt" Mills Jr. "Personally I don't see how he can recover from this."...

Tuesday, November 1, 2011

Supreme Court to take another look at prosecutorial misconduct

Angela J. Davis

Angela J. Davis, who is discussed in the following story, is not the well-known Angela Yvonne Davis who studied at UCSD with Herbert Marcuse.

Supreme Court to take another look at prosecutorial misconduct
By Robert Barnes
Washington Post
October 30, 2011

Prosecutors, says Angela Davis, former head of the D.C. public defenders office, “are the most powerful officials in our criminal justice system.”

Davis, a professor at American University’s Washington College of Law, explains:

“They decide whether a person’s going to be charged, what to charge them with, whether there’s going to be a plea bargain and what the plea bargain will be. As they make those decisions, they exercise almost boundless discretion.”

That combination of power and discretion, she said, “can and has led to abuse.”

It’s an issue of perpetual interest at the Supreme Court. Next week, the court will hear a case in which a Louisiana death row inmate alleges that prosecutors withheld information that would have cast doubt on the eyewitness account that led to his conviction.

The case from New Orleans concerns prosecutors who worked for former district attorney Harry Connick Sr., who left office in 2003.

If that sounds familiar, it is because Connick and his office were at the center of last term’s big decision about prosecutorial misconduct. In that controversial 5-to-4 decision, the court stripped a $14 million award from John Thompson, who spent 14 years on death row after prosecutors withheld evidence that showed his innocence.

The court has long agreed that individual prosecutors should be protected from civil liability so that they may freely pursue criminals. However, Thompson had convinced a jury that Connick’s office should be held accountable for not properly training staff about the duty prosecutors have to turn over evidence favorable to the defense.

But Justice Clarence Thomas, joined by the court’s other conservatives, said Thompson did not meet the high standard of showing a pattern of “deliberate indifference” on Connick’s part.

Justice Ruth Bader Ginsburg, on behalf of the court’s liberals, read her dissent from the bench, saying she would have upheld the award against Connick’s office for the “gross, deliberately indifferent and long-continuing violation of (Thompson’s) fair trial right.”

Barry Scheck, co-director of the Innocence Project, said the court’s decision in Connick v. Thompson made it clear that civil remedies are not a viable option for those trying to stop prosecutorial misconduct.

He, Thompson and others were part of a group of “innocence advocates” who last week proposed a national dialogue with prosecutors to try to find other ways to investigate and sanction prosecutors who break the rules.

Santa Clara University law professor Kathleen Ridolfi said the group needs to find a way around “a system where the Supreme Court refuses to hold prosecutors accountable, even for repeated, deliberate misconduct.”

The new case, Smith v. Cain , is not about punishing prosecutors. It is about whether withholding evidence should mean a new trial for Juan Smith, who prosecutors said was involved in a gangland-style shooting that left five dead. Prosecutors have an obligation under a nearly 50-year-old Supreme Court precedent in Brady v. Maryland to turn over any evidence material to a defendant’s guilt or punishment.

The case is expected to be determined by its specific facts rather than the potential for a new examination of Brady. It also seems not coincidental that it involves New Orleans prosecutors.

Smith’s lawyers point out that courts have overturned four death sentences from Orleans Parish because of violations of the Brady rules, and they say eight other non-capital cases have met the same fate.

The American Bar Association has asked the court to use the case to tell prosecutors that they have a greater obligation than simply meeting Brady requirements. The ABA says the court should mandate that prosecutors abide by ABA model rules that call for disclosure of any exculpatory evidence, whether it is determined to be material or not.

The National District Attorneys Association replied that the ABA is nothing but a private association of lawyers that consistently takes the side of criminal defendants. The regulation of prosecutors, it says, “is appropriately left to the individual states.”

Such sensitivity is why Scheck and others at a news conference last week took pains to say they believe only a small slice of prosecutors have committed misconduct. He said he was generally advised, “ ‘Don’t go around the country pillorying prosecutors and giving the impression that what happened in John Thompson’s case is happening across the board in an epidemic.’ ”

He added: “ We’re not saying that.”

Monday, October 17, 2011

Bad judges around the world: The Nanking judge who seems to have destroyed Good Samaritanism

After toddler is left to die, China disquieted
By Joshua Norman
October 17, 2011

...According to many internet commentators, the relatively new tendency in China to ignore those in desperate need can be blamed on the "Nanjing judge."

Chinese news aggregator writes that phrase refers to "the 2006 case of a man named Peng Yu who helped a woman to the hospital after she had fallen only to have the old woman accuse him of knocking her down. The Nanjing judge in that case ultimately ruled that common sense dictated that only the person who hit her would take her to the hospital."...

China shocked as hit-run toddler ignored by 18 passers-by
by: Leo Lewis
The Times
October 18, 2011

Many remember a case in 2006 when a 65-year-old woman fell in the street and broke her hip.

Peng Yu, 26, rushed to help, took her to hospital and gave her 200 yuan for good measure.

She later sued him, winning an award of 45,000 yuan because the judge decided that Mr Peng's gift was evidence that he had caused her fall.

Thursday, October 13, 2011

The ethics of the San Diego Ethics Commission: keeping secrets from "two-bit newspapers" about lobbyists who serve as its attorneys

“You have an excellent reputation in the community; you are an extremely careful person, and I don’t see why your answer should not be sufficient,” Commissioner and retired Judge William Howatt Jr. told Fulhorst.

The ethics of the Ethics Commission
By Dave Maass
San Diego City Beat
Oct 12, 2011

At a September meeting of the San Diego Ethics Commission, the agency’s executive director, Stacey Fulhorst, presented the mother of all catch-22s.

While inspecting lobbyist-activity records, CityBeat had learned that private attorneys retained by the Ethics Commission are also working as counsel for the Southeastern Economic Development Corporation (SEDC), a city redevelopment agency, and as lobbyists for private companies. The relationships seem to present a potential conflict of interest on multiple levels, since the commission both regulates lobbyists and enforces ethics in city government, including SEDC. Asked about this, Fulhorst said the law firm—Stutz, Artiano, Shinoff and Holtz—and the commission have put several firewalls in place.

However, since attorney-client confidentiality covers legal agreements, Fulhorst couldn’t offer proof of these safeguards without first asking the commission’s seven members to release the information.

“I would personally recommend that you do approve a waiver, a very limited waiver of just, literally, a handful of paragraphs, because I do think it’s important to demonstrate to the public that we recognize it would not be appropriate for us to receive legal services from the same law firm that was providing general counsel to SEDC on SEDC matters,” Fulhorst told commissioners on Sept. 23.

Paradoxically, Fulhorst couldn’t show the commissioners the relevant paragraphs because they’d then become public record. Nor could the commission turn to its legal counsel for advice, since the lawyers were the subject of the discussion.

The commission deliberated for 15 minutes on whether an agency that investigates conflicts of interests should be transparent regarding its own potential conflicts. Some members wondered why CityBeat wouldn’t just take Fulhorst’s word.

“You have an excellent reputation in the community; you are an extremely careful person, and I don’t see why your answer should not be sufficient,” Commissioner and retired Judge William Howatt Jr. told Fulhorst.

Some worried about setting a precedent.

“I just think we should be careful with granting such a waiver,” Commissioner Larry Westfall, an accountant, said. “Once you do it, we start to open the door for every little, two-bit newspaper in town to come here and make requests for information, too.”

Some recognized the public interest in releasing the document, but Commissioner and attorney John O’Neill alone saw that as overriding other concerns.

“I think it puts to rest any suspicion there is any impropriety here,” O’Neill said. “I don’t think it helps us to not give the document.”

The commission voted 5-1 (one member was absent) against releasing the information, rejecting Fulhorst’s offer to conduct more research on an issue that wouldn’t have come up a year ago.

With Proposition E in 2004, San Diego voters authorized the Ethics Commission to hire its own legal counsel instead of relying on the advice of the City Attorney’s office. Proponents argued it was problematic for the city attorney to represent both the commission and the city officials subject to commission investigations. They also noted that City Attorney staff are also subject to commission enforcement actions.

For the first five years, the commission employed a staff attorney, but when the lawyer departed last year, the agency decided to contract with an outside firm to allow more flexibility. The Stutz firm submitted a bid and, Fulhorst said, was selected because of the “unique expertise and knowledge” of Christina Cameron, a longtime City Hall staffer specializing in ethics and campaign reform who’d recently earned a law degree. Under the terms of the bid, Cameron would serve as a general counsel, working under the supervision of “associate general counsel” Prescilla Dugard and Leslie Devaney. All three were serving as counsel to SEDC and lobbyists, but the firm agreed that Cameron would be severed from SEDC matters and no longer register as a lobbyist.

In the first half of 2011, the Ethics Commission paid the Stutz firm $48,000 in fees, and another $3,000 to a second firm that handles cases when a conflict arises. During the same period, the Stutz firm collected at least $203,000 from SEDC. As a lobbying organization, the firm represents EverFlow Resources, Staff Pro and Western Towing.

Fulhorst, Cameron and Devaney described to CityBeat many of the physical and procedural measures in place to protect against a conflict. The firm also amended its lobbyist reports following CityBeat’s inquiry to better reflect Devaney and Dugard’s involvement with the Ethics Commission: Each provided less than an hour of legal services in the first half of the year.

Tracy Westen, CEO of the Center for Governmental Studies, a Los Angeles-based watchdog organization, says he’s less concerned with the specific SEDC issue than he is alarmed to learn that registered lobbyists are providing legal advice to lobbyist regulators.

“Ideally, if you contract for ethics advice with outside counsel, you want that outside counsel to give you independent advice,” Westen says. “But if the outside counsel is also lobbying the city, its advice may tilt in favor of lobbyists in general. Simply recusing themselves from judgments involving a client they’re lobbying for is a good idea, but it does not purge them of pro-lobbyist sentiments.”

Of the 106 complaints processed by the commission in 2010, 38 percent—the largest portion—were alleged violations of the city’s lobbying ordinance, according to the commission’s annual report.

“If a matter were heavily related to lobbying and I felt it was inappropriate to talk to [Devaney or Dugard] because they are registered lobbyists, then I have other partners and other senior attorneys that I can work with if I need to,” Cameron says.

Westen says that’s not enough. “It’s very difficult for a law firm to purge itself of this appearance of a conflict if some partners are lobbying and others are not,” Westen says. “I think the city really needs to go to a law firm that is not doing lobbying.”

Fulhorst says that’s an impractical idea coming from someone “working in academia,” since the “vast majority of law firms” in San Diego are registered as lobbyists under the city ordinance...

Wednesday, October 12, 2011

Clarence Thomas Didn't Report $700K Paid to His Wife: House Dems

Clarence Thomas Didn't Report $700K Paid to His Wife: House Dems
By Cynthia Hsu
October 3, 2011

Supreme Court Justice Clarence Thomas failed to disclose that his wife received paychecks from conservative think tank the Heritage Foundation.

And the sum is no small chunk of change. House Democrats say that Virginia Thomas received $700,000 between 2003 and 2007.

They are now requesting an ethics investigation into the matter.

So did Thomas deliberately exclude the payout? Or was this simply an accident?

One thing is for sure: this isn't the first time the justice has omitted some information.

In January, Thomas corrected about 20 years worth of documents after a watchdog group noticed that he never disclosed where his wife worked.

Thomas said that this was a simple accident due to a "misunderstanding of the filing instructions."

But strangely enough, the amended reports indicate that his wife worked at the Heritage Foundation from 1998 to 2003.

Okay, so he knew that he had to disclose where his wife worked during those years.

But then why not go back and fill in all the gaps? Why only bubble in that his wife worked at the think tank between the years of 1998 and 2003 when he knew that she worked there from 2003 to 2007 as well?

Tuesday, October 11, 2011

Expensive Lawyers Being Replaced by Robo-Lawyers

Expensive Lawyers Being Replaced by Robo-Lawyers
By Cynthia Hsu
October 11, 2011

Attorneys everywhere: watch out. You might get outsourced soon, replaced by an army of hard-working robo-lawyers.

No, robo-lawyers aren't android-like machines sporting pinstripes and looking like Arnold Schwarzenegger from "Terminator."

Instead, these automated machines are more like software. They can process disputes and help settle claims, much like a regular attorney. Except at a fraction of the cost. This is why even large global companies like General Electric are turning to "robotic" help.

GE is currently testing out the computer program in Italy. Right now it's being used mainly on disputes amounting to $65,000 and less.

Why the computerized help? Doesn't GE want to pay lawyers hundreds of dollars per billable hour? Guess not.

As it turns out, sometimes it's just not worth it to hire an attorney. GE says that it costs around $10,000 to pursue a claim through typical arbitration methods. So if you're trying to settle a claim that is only worth $10,000, arbitration seems extremely expensive.

It makes sense that they'd want to cut costs somehow.

And it seems like a step toward the future. More and more work these days are outsourced to computers and actual robots. There's the iRobot Roomba, a robot that could smartly vacuum your house. There's also Asimo, Honda's take on a humanoid robot.

Basically, we might need to prepare for a future where robots will take over all. Maybe robots will soon drive our cars, wash our clothes, and do all our legal work for us.

Is that really such a bad thing? Maybe a robo-lawyer will actually be more friendly and personable than a real attorney already lacking in social skills.

Saturday, September 17, 2011

Lawyers who commit fraud on behalf of clients should be disbarred

Usually lawyers get disbarred for simply stealing clients' funds. When this happens, usually only a few victims are harmed.

The more serious problem is unethical lawyers who harm the justice system by committing fraud ON BEHALF OF their clients. Justice is perverted; the system harms the innocent in case after case. Too many judges look the other way when lawyers commit frauds in the courtroom.

The story below discusses a case in which a lawyer who committed fraud on behalf of his client was disbarred. However, I suspect it was a powerful individual or organization that pushed for justice, not the judge involved.

The story below fails to mention San Diego District Attorney Bonnie Dumanis' position on the California State Bar Board of Governors. [See story at bottom of this post.]

Critics: DA should prosecute problem lawyers

The office says State Bar standards are different

After a trial late last year, the State Bar Court of California concluded that Carlsbad lawyer Patricia Gregory improperly withdrew more than $112,000 from client trust funds.

A judge recommended Gregory for disbarment in March, and the attorney is fighting the decision. She is not eligible to practice law while the review process runs its course.

Gregory has not been prosecuted, nor have several other attorneys who faced such findings from the bar. Critics say the District Attorney’s Office should act in such cases, but the staff says there are many complicating factors, such as different standards of proof and the need to set priorities.

Others who have not been prosecuted:

•Todd Smith, a Carlsbad attorney, wrote checks on a client trust fund for personal use. State Bar records do not specify how much Smith took from his client. He stipulated to the State Bar that he wrote checks on his attorney-client trust account for his own use multiple times.

•Former attorney Steven Weisenberg was disbarred in 2004 after the State Bar Court found that he sent papers that appeared to be a court order to a title company. Weisenberg “engaged in an elaborate and highly deceptive scheme in an effort to obtain for his clients the results they desired, and in doing so, he committed a serious act of fraud,” Judge Richard A. Honn wrote.

•San Diego lawyer Todd Hilts took more than $8,800 from one of his clients, according to State Bar records. “By misappropriating at least $8,848.69 belonging to (his clients), respondent committed an act involving moral turpitude, in willful violation” of state law, the bar court found...

The District Attorney’s Office rejects any suggestion that it shies away from prosecuting lawyers who commit crimes while performing legal work.

Damon Mosler, who oversees the division that prosecutes lawyers, police officers and public officials, said the standard of proof in State Bar Court is lower than in Superior Court. He said certain cases are better suited to a regulatory venue.

“If there is misconduct by lawyers in their capacities as lawyers, generally we rely on the State Bar to be the investigating agency,” he said...

Luwain Ng of Carmel Valley retained Gregory for divorce proceedings and is now suing her former lawyer.

“I tried to file a police report and they did not want to take a report,” Ng said. “They said ‘Take it directly to the district attorney.’ Then I got a letter saying this is a State Bar matter and they are not going to pursue it.”...

Denise Doll has been homeless off and on since she hired Gregory to perform various legal work in 2007.

She received a pair of settlements in cases Gregory handled and assumed the money was being held in the attorney-client trust fund...

Doll provided The Watchdog a voicemail left for her by prosecutor Jeff Dort, who said he was rejecting the case because he would need police reports, bank records and documents compiled by the bar before he could make a decision about prosecuting Gregory...

The State Bar refers a small number of cases to the District Attoney’s Office for prosecution -- perhaps two a year, Mosler said. A State Bar spokeswoman said the office does not track referrals to county prosecutors...

Five elected to bar board
California Bar Journal
August 2006

Five attorneys, including San Diego District Attorney Bonnie Dumanis, were elected to three-year terms on the State Bar’s Board of Governors.

Friday, September 16, 2011

Cynthia Sommer's suit against Dumanis proceeds

Cynthia Sommer's suit against Dumanis proceeds
Aaron Burgin
Sept. 1, 2011

The sample of U.S. Marine Sgt. Todd Sommer’s liver and kidney was full of arsenic, more arsenic than had ever been found in a human tissue sample before — by 1,250 percent, according to a court complaint.

It was a level that one Canadian toxicology expert said should have raised flags about whether the sample was contaminated.

Despite the improbability, and the medical examiner’s official finding that Sommer died of natural causes, San Diego County District Attorney Bonnie Dumanis mounted an unsuccessful murder prosecution of Sommer’s wife, Cynthia. The death was in 2002, but one aspect of the case remains.

A $20 million federal lawsuit filed by Cynthia Sommer says that Dumanis’ office should have known better, and that the prosecution amounted to misconduct and a violation of the woman’s civil rights.

Prosecutors proceeded because they believed that Sommer stood to gain from a $250,000 life insurance policy. They said that her behavior following his death — she got a breast augmentation, partied and slept with other men — bolstered their argument.

Dumanis says her office acted appropriately, that it dropped the prosecution once reasonable doubt was raised.

The Sommer lawsuit, filed in September 2009, has proceeded.

The suit originally named Naval Criminal Investigative Services officials and scientists with a federal laboratory that made the arsenic finding. A judge has dropped them from the suit, leaving Dumanis, County Medical Examiner Glenn Wagner and the federal government as defendants.

Also remaining as a defendant is Deputy District Attorney Laura Gunn, who once told the media, “This is the coldest homicide I’ve had, in terms of being absolutely coldblooded.”

Dumanis and Gunn lost a bid to dismiss the complaint against them in May 2010.

Dumanis, who is running for mayor of San Diego, could be in a federal courtroom as early as March for conferences and pretrial hearings in the case. A settlement conference and a pretrial conference are tentatively scheduled for March 14 and April 23, respectively. The election is June 5.

Dumanis, approached last week after an interview with The San Diego Union-Tribune editorial board, declined to comment.

“I’ve got counsel, and I am not supposed to talk about this,” she said.

Cynthia Sommer was convicted in 2007 of the first-degree murder of Todd Sommer five years earlier. She was granted a new trial after a judge ruled that her defense attorney made mistakes that deprived her of a fair trial.

She was released in 2008 after prosecutors dropped charges against her when new tests of arsenic-free tissue cast doubt on whether Todd Sommer was poisoned.

Cynthia Sommer’s lawsuit contains allegations that Dumanis’ office colluded with Naval investigators to wrongfully charge and prosecute Sommer.

At the heart of her attorney’s charges is the allegation that the parties knew the chief evidence was tainted. Those samples had extraordinarily high levels of arsenic — levels never seen in the history of reported arsenic testing, according to the complaint.

A former director of a lab in Quebec that determined there was no arsenic in the second samples called the original results “physiologically improbable,” and possibly contaminated.

“It is our position that, in spite of the evidence that was there that clearly suggested this was not a murder, the parties continued to maliciously pursue my client’s arrest and conviction,” said Robert Rosenthal, one of several attorneys representing Cynthia Sommer...

Justice Stevens Extols Pro Bono Service, Criticizes Connick Ruling

September 15, 2011
Justice Stevens Extols Pro Bono Service, Criticizes Connick Ruling
Blog of Legal Times

Retired Supreme Court Justice John Paul Stevens said Thursday night that for lawyers, "the greatest reward is not monetary," as he urged attorneys to take on clients in need of help on a pro bono basis.

Stevens, 91, spoke and received an award at a Washington celebration of the 25th anniversary of the American Bar Association Death Penalty Representation Project, which recruits volunteers from top law firms to assist death row inmates in their appeals.

Project director Robin Maher told the audience that the hundreds of lawyers recruited over the years have helped move 50 inmates off death row, either through exoneration or reduced sentences. She said the need is still great for lawyers to give skilled representation to those on death row, many of whom have had woefully inadequate counsel at trial and during the appeal process. "We need a much stronger word than crisis" to describe the situation, she said. The project trains and supports lawyers who participate.

Three law firms -- Arnold & Porter, Dorsey & Whitney, and Fredrikson & Byron -- received awards at the event for their pro bono representation. Also speaking was Anthony Graves, who was freed from prison in Texas last October after 12 years on death row and six years in prison. A special prosecutor appointed to review his conviction found no credible evidence linking Graves to the murders he was charged with committing.

"I was naive," Graves told the audience at the Decatur House, near the White House. "I thought if I was innocent, I would come out victorious." But the process of vindication took 18 years.

In his remarks, Stevens said that during his private practice years roughly 50 years ago, he never represented someone on death row. But he did take on the case of a prisoner at Joliet Correctional Center in Illinois who claimed that he had confessed to his crime because the police had beaten him. "I was convinced his story was true," Stevens said. Stevens remembers the case vividly, which he said is proof of how meaningful and rewarding pro bono service is.

Stevens, who in 1976 voted to reinstate capital punishment, announced in a 2008 decision that he had come to view the death penalty as unconstitutional, in part because of the risk of executing innocent people. He retired in June, 2010.

Stevens made it clear in his talk that he is still upset about the Supreme Court's March 29 decision in Connick v. Thompson. Stevens sharply criticized the ruling in a speech in May, and it is still on his mind.

In spite of extensive evidence of prosecutorial misconduct in New Orleans, a majority in Connick struck down a damages judgment that had been awarded to freed death row inmate John Thompson. That outcome turned on the Court's finding that the prosecutor could not be held liable for failure to train his staff, based on a single violation of Brady v. Maryland -- withholding exculpatory evidence from the defense. In his majority opinion, Justice Clarence Thomas cited the 1978 Monell decision, which said local governments could be held liable for civil rights violations only for actions that were based on official municipal policy.

Last night Stevens said the need to establish that a municipal policy such as inadequate training led to the civil rights violation was an "off the wall" and "obviously unwise" standard that "causes so much work" and should be changed. The common law concept of respondeat superior, which holds the supervisor responsible for the torts of employees, is the way to go, in Stevens' view...

Troy Davis in spotlight again as execution nears

September 16, 2011
Troy Davis in spotlight again as execution nears
Edecio Martinez

(CBS/AP) ATLANTA - Hundreds of thousands of people are rallying to support Georgia death row inmate Troy Davis. They not only oppose capital punishment but they also believe the state could put an innocent man to death.

The case is packed with drama: the murder of an off-duty police officer; conflicting eyewitness testimony; last-minute court decisions sparing a condemned man's life and global dignitaries who say they fear an innocent man could die.

Davis' case has captured considerable attention because of the doubt raised over whether he killed Mark MacPhail in Savannah in 1989. The U.S. Supreme Court even granted Davis a hearing to prove his innocence. It was the first time it had done so for a death row inmate in at least 50 years but he couldn't convince a judge to grant him a new trial.

The officer's family believes there is no doubt that Davis killed MacPhail and prosecutors say the right man was convicted.

Davis is scheduled to die Wednesday which is the fourth time his execution has been set in four years. He once came within two hours of being put to death. His attorneys say his legal appeals are exhausted and the chances of him winning another reprieve have dwindled.

However, supporters hope to convince Georgia's pardons board next week to spare his life.

The execution of Davis "risks taking the life of an innocent man and would be a grave miscarriage of justice," said former President Jimmy Carter, a Democrat from Georgia and death penalty opponent who wrote a letter on Davis' behalf.

Tuesday, August 9, 2011

Teacher talks back: Retired San Diego teacher Maura Larkins doesn't lose her First Amendment rights

Thomson Reuters News & Insight
Featured Content from WESTLAW
SUMMARY JUDGMENTS: Our daily legal-news aggregator for Aug. 9
By Joseph Schuman

...Teacher talks back: Retired San Diego teacher Maura Larkins doesn't lose her First Amendment rights just because she has made defamatory statements on her website in the past, an appeals court has ruled. Larkins had a history of criticizing Stutz Artiano Shinoff & Holtz, a law firm which often defends school district, the Voice of San Diego reports. Among other charges, Larkins wrote that the firm fosters "a culture of misrepresentation and deception." Stutz Artiano sued, and two years ago a San Diego court approved a settlement between the two parties. Though Larkins was ordered by the judge to remove defamatory statements about Stutz Artiano, she continued to post new criticism. Judge Judith Hayes eventually ordered her to stop making any statements about it "by any method or media." But an appeals court concluded that the order is "exceedingly broad."

Monday, August 8, 2011

Judge’s Sanction Banning Website Mention of Law Firm and Members Violated 1st Amendment

Judge’s Sanction Banning Website Mention of Law Firm and Members Violated 1st Amendment
Aug 8, 2011
By Martha Neil
ABA Journal

A California judge [Judith Hayes] had the power to ban a San Diego woman from continuing to make statements online that had been found to be false and defamatory.

But the trial court went too far, an appellate panel found, when it banned Maura Larkins, as a sanction for continued violation of the rules, from making any mention whatsoever of Stutz Artiano Shinoff & Holtz, or the firm's members, reports the Metropolitan News-Enterprise.

In addition to being an unconstitutional prior restraint in violation of the first amendment, the Internet speech ban was not the least restrictive means of achieving compliance with the trial court's ruling, held the 4th District Court of Appeal in its Friday ruling.

Wednesday, July 20, 2011

Law School Economics: Ka-Ching!

Law School Economics: Ka-Ching!
The New York Times
uly 16, 2011

WITH apologies to show business, there’s no business like the business of law school.

The basic rules of a market economy — even golden oldies, like a link supply and demand — just don’t apply.

Legal diplomas have such allure that law schools have been able to jack up tuition four times faster than the soaring cost of college. And many law schools have added students to their incoming classes — a step that, for them, means almost pure profits — even during the worst recession in the legal profession’s history.

It is one of the academy’s open secrets: law schools toss off so much cash they are sometimes required to hand over as much as 30 percent of their revenue to universities, to subsidize less profitable fields.

In short, law schools have the power to raise prices and expand in ways that would make any company drool. And when a business has that power, it is apparently difficult to resist.

How difficult? For a sense, take a look at the strange case of New York Law School and its dean, Richard A. Matasar. For more than a decade, Mr. Matasar has been one of the legal academy’s most dogged and scolding critics, and he has repeatedly urged professors and fellow deans to rethink the basics of the law school business model and put the interests of students first.

“What I’ve said to people in giving talks like this in the past is, we should be ashamed of ourselves,” Mr. Matasar said at a 2009 meeting of the Association of American Law Schools. He ended with a challenge: If a law school can’t help its students achieve their goals, “we should shut the damn place down.”

Given his scathing critiques, you might expect that during Mr. Matasar’s 11 years as dean, he has reshaped New York Law School to conform with his reformist agenda. But he hasn’t. Instead, the school seems to be benefitting from many of legal education’s assorted perversities.

N.Y.L.S. is ranked in the bottom third of all law schools in the country, but with tuition and fees now set at $47,800 a year, it charges more than Harvard. It increased the size of the class that arrived in the fall of 2009 by an astounding 30 percent, even as hiring in the legal profession imploded. It reported in the most recent US News & World Report rankings that the median starting salary of its graduates was the same as for those of the best schools in the nation — even though most of its graduates, in fact, find work at less than half that amount.

Mr. Matasar declined to be interviewed for this article, though he agreed to answer questions e-mailed through a public relations representative.

Asked if there was a contradiction between his stand against expanding class sizes and the growth of the student population at N.Y.L.S., Mr. Matasar wrote: “The answer is that we exist in a market. When there is demand for education, we, like other law schools, respond.” ...

Sunday, July 17, 2011

Veteran prosecutors’ rookie mistake, no-nonsense judge lead to Clemens mistrial

Veteran prosecutors’ rookie mistake, no-nonsense judge lead to Clemens mistrial
By Del Quentin Wilber
July 16, 2011

The demise of the perjury trial of Roger Clemens was sown in one of the most routine moments of any prosecution: the playing of a video for jurors.

It actually was the fifth cued up that day, showing Clemens’s testimony before a House committee. While tedious, the clips were an essential part of the Justice Department’s case that the baseball legend had lied to Congress in 2008, when he told lawmakers that he had never taken performance-enhancing drugs.

Within moments of the tape’s rolling, the trial was over, and the prosecutors sat slumped and dejected in their chairs.

A judge had declared a mistrial, ruling that the tape included evidence he had barred from the jury.

The dramatic decision left legal observers wondering how such a high-profile prosecution could end so abruptly, on just the second day of testimony. A review of transcripts and interviews with people knowledgeable about what happened reveals that federal prosecutors did not intentionally introduce barred evidence to the jury. Despite years of experience, two well-respected prosecutors had made a basic mistake and not carefully reviewed the videos they planned to show jurors.

Their error was intensified because it occurred in front of a by-the-book judge who noticed it before defense lawyers could even raise an objection.

“Because of the prosecutors’ excellent reputations, you have to believe it’s a mistake, just a mistake,” said Tom Zeno, a former colleague of the two government lawyers. “What compounds the error here,” he added, “is that the judge runs a very tight ship and had high expectations of the prosecutors.”

The judge in the case is Reggie B. Walton, who will be weighing legal arguments in coming weeks to determine whether to grant prosecutors a retrial. Last week, the judge gave no hint about how he might rule.

First appointed to the D.C. Superior Court by President Ronald Reagan in 1981, Walton was tapped for the federal bench in 2001 by President George W. Bush. Since then, he has earned a reputation for being able to manage complex and high-profile trials.

In 2007, he oversaw the trial of I. Lewis “Scooter” Libby, who was convicted of lying about his role in the leak of an undercover CIA officer's identity. He sentenced Libby to 2 ½ years in prison — a sentence later commuted by Bush.

A former fullback on his college football team, he also isn’t afraid to take action. In 2005, he broke up an assault in Chevy Chase Circle by tackling the assailant...

Thursday, July 14, 2011

Wisconsin justice says court fight led to choking

Wisconsin justice says court fight led to choking
Associated Press

MADISON, Wis. -- A member of the Wisconsin Supreme Court's liberal faction has accused a conservative justice of choking her during an argument in her office earlier this month - a charge he denied.

Supreme Court Justice Ann Walsh Bradley told the Milwaukee Journal Sentinel that Justice David Prosser put her in a chokehold during the dispute. She contacted the newspaper late Saturday after Prosser denied rumors about the altercation.

"The facts are that I was demanding that he get out of my office and he put his hands around my neck in anger in a chokehold," Bradley told the newspaper.

A message could not be left at her home listing, and her former campaign manager did not return a call from The Associated Press.

Wisconsin Public Radio and the Wisconsin Center for Investigative Journalism, quoting anonymous sources, first reported the argument occurred before the Supreme Court's decision earlier this month upholding Republican Gov. Scott Walker's bill eliminating most of public employees' collective bargaining rights. Prosser then released a statement denying the allegations.

"Once there's a proper review of the matter and the facts surrounding it are made clear, the anonymous claim made to the media will be proven false," he said. "Until then I will refrain from further public comment."

Prosser's spokesman Brian Nemoir declined to comment on Bradley's later statement and told The Associated Press that Prosser probably wouldn't either. Other members of the court either did not return messages or declined to comment on the incident.

The argument took place June 13, the day before the court, in a 4-3 decision that included a blistering dissent, ruled that Dane County Circuit Judge Maryann Sumi overstepped her authority when she declared the polarizing union law void. While accounts differ, the justices were apparently discussing the decision and its timing.

Leaders in the Republican-controlled Legislature had pushed for a decision by June 14 because they were working on the state budget, and Walker's proposal depended on expected savings from the law. Along with limiting most public employees' bargaining rights, it requires them to pay 12 percent of their health insurance costs and 5.8 percent of their pension costs.

Tens of thousands of people gathered for weeks at the Capitol to protest the proposal after Walker unveiled in February. Once it passed, opponents began to focus on Prosser's re-election campaign in the hope that by replacing him with a liberal justice, they could get the court to overturn the legislation.

Prosser, who had been expected to walk away with the election, found himself in a tight race with liberal challenger JoAnne Kloppenburg. Initial results showed she had defeated Prosser by about 200 votes, and she declared herself the winner the day after the election. Then a county clerk who once worked for Prosser announced she had failed to report 14,000 votes.

A bitter and nearly month-long recount ended with Prosser's re-election. He defeated Kloppenburg by about 7,000 votes.

The recount ended about three weeks before the Supreme Court issued its opinion in the union case. The Milwaukee Journal Sentinel, quoting an anonymous source, said the argument erupted after Chief Justice Shirley Abrahamson said she didn't know whether the opinion would be released in June. Prosser allegedly questioned Abrahamson's leadership, leading Bradley to defend her.

Prosser and Abrahamson, another of the court's liberal minority, had had problems before. Prosser told the newspaper in March that he had used profanity in a meeting the month before and threatened to destroy Abrahamson.

Bradley sent all the justices an email after that meeting, saying Prosser's behavior was unacceptable. She said later that she considered making a report to law enforcement but decided against it.

The Center for Investigative Journalism reported the altercation between Prosser and Bradley had been brought to the attention of the Wisconsin Judicial Commission, which investigates allegations of misconduct involving judges. The commission's executive director, James Alexander, said he couldn't confirm nor deny an incident was under investigation.

Wednesday, July 13, 2011

Bullyproofing: How to Respond to Bullies in the Legal Profession

Bullyproofing: How to Respond to Bullies in the Legal Profession
by Alison Peryea
De Novo
April 2010

...Motivation: Why Bullies Act the Way
They Do

Some people believe that bullies in the le-
gal practice act the way they do because of
underlying anger-management problems
or personality defects. Indeed, studies have
shown that bullies’ brains actually work
differently than the brains of those who
do not bully: bullies suffer from a kind of
paranoia that constantly causes them to
see provocation from others when it does
not exist. “Bullies come to believe that ag-
gression is the best solution to conflicts,”
wrote Hara Estroff Marano in Psychology
Today. “They also have a strong need to
dominate, and derive satisfaction from
injuring others.”

But there are also practical motivations
for bullying in the practice of law. Our
adversarial system incentivizes aggressive
conduct, and some misled attorneys confuse
bullying with zealous advocacy. The unfor-
tunate paradox in the practice of law is that,
while civility among parties and counsel is
championed as the gold standard, the real

ity is that bullying sometimes pays off.
Attorneys who bully do so to intimidate and
gain or regain power and control. When
successful, hyper-aggressive conduct can
cause opposing lawyers (particularly new
attorneys) to doubt both their cases and
competence. When this happens, an inexperienced
attorney can lose sight of the true
goal — success for the client — and grab
desperately for a fictitious one: getting the
case over with, even if it means persuading
a client to accept an unfavorable settlement.
This, of course, is a bully’s desired outcome...

I recommend clicking on the following link to get the original story, which is full of terrific links.
Responding to Legal Threats
Citizen Media Legal Project

Even if you have done everything right and taken every possible precaution, there may come a time when you are sued or receive a legal threat. The first thing you should do is take a deep breath and assess the situation.

First, determine what type of legal threat you received. Most legal threats come in the form of a letter or email. Typically, the letter or email will demand that you cease whatever activity is being complained about and desist from engaging in the conduct in the future. If you receive such a letter or email, you should carefully check to see if the correspondence includes an attachment that bears the name of a court or otherwise resembles a complaint or legal filing. Consult the following examples to determine what type of threat you've received:

Examples of cease-and-desist letters and email: Stutz Artiano Letter, DirectBuy Letter, Best Buy Letter, Goldman Letter, Diebold Letter, Strahl Email, and Dreamworks Email.

Examples of lawsuit complaints that should help you determine whether you have been sued: Mayhew Complaint, Ronson Complaint, and Pivar Complaint.

Examples of subpoenas that should help you determine whether you have been served with a subpoena: Earthlink Subpoena, AutoAdmit Subpoena, Tice Subpoena, and IBM Subpoena.

Second, weigh your options as to how to respond. It is imperative that you DO NOT DELAY. Even if you have only received a threatening letter or email and have not been sued, you should take the threat seriously and review the Responding to Correspondence Threatening Legal Action section of this guide to help you formulate a response. If you receive a lawsuit or subpoena, you should review the Responding to Lawsuits or Responding to Subpoenas sections of this guide to determine how to respond.

Third, consider hiring a lawyer or seeking legal self-help. Even if you believe the legal threat you've received is meritless, it is best not to minimize the situation. Do not assume that the threatening party will simply go away. Speaking to a lawyer, even if it is only a phone call, or doing some legal research can help to set your mind at ease and get you started on the right path to deal with the legal threat. See our Finding Legal Help section for some guidance.

Tuesday, July 12, 2011

3 San Diego Superior Court judges indicted for taking bribes: Judges Michael Greer, James Malkus and G. Dennis Adams

Monday, July 11, 2011

When judges are more inflamed than juries in murder cases

Oklahoma pharmacist sentenced to life for killing would-be robber

Fifty-nine-year-old calls his sentence 'an injustice of a monumental proportion'
July 11, 2011

An Oklahoma pharmacist has been sentenced to life in prison with the possibility of parole for first-degree murder in the shooting death of a teenager who tried to rob the south Oklahoma City pharmacy where he worked.

Fifty-nine-year-old Jerome Ersland was sentenced Monday after Oklahoma County District Judge Ray Elliott rejected a defense motion to suspend the sentence.

Ersland had no reaction and said nothing as the sentence was handed down. As he left the courtroom, he responded to a reporter's shouted question by calling the sentence "an injustice of a monumental proportion."

A jury convicted Ersland and recommended the life with the possibility of parole sentence for the May 2009 shooting of 16-year-old Antwun Parker. Defense attorney Irven Box said the conviction and sentence will be appealed.

Confronted by two holdup men, Ersland pulled a gun, shot one of them in the head and chased the other away. Then, in a scene recorded by the drugstore's security camera, he went behind the counter, got another gun, and pumped five more bullets into Parker as he lay on the floor unconscious.

At the trial, prosecutors argued that Ersland crossed into the wrong when he shot the unarmed and unconscious Parker five more times.

Ersland contended that he was defending himself and two co-workers from a robber who still posed a threat.

When Judges Override Juries, Death Is Often the Sentence

July 11, 2011

Alabama allows judges to reject sentencing decisions from capital juries, which sounds like a sensible idea. You might want a mature and dispassionate jurist standing between a wounded community’s impulse toward vengeance and a defendant at risk of execution.

“If you didn’t have something like that,” said Judge Ferrill D. McRae, who spent 40 years on the bench in Mobile before he retired in 2006, “a jury with no experience in other cases would be making the ultimate decision, based on nothing. The judge has seen many, many cases, not just one.”

Judge McRae, chatting on the phone the other day, recalled having breakfast with Justice Thurgood Marshall at an American Bar Association meeting not long after the Supreme Court reinstated the death penalty in 1976.

Justice Marshall was a fierce opponent of the death penalty. But, according to Judge McRae, the justice also saw the wisdom of the override system. “He thought it was better that someone who had seen more than one case was making the decision,” Judge McCrae said.

What Justice Marshall probably did not anticipate, though, was that judges in Alabama would not use their power for mercy — that they would, in fact, be even tougher than juries. Since 1976, according to a new report, Alabama judges have rejected sentencing recommendations from capital juries 107 times. In 98 of those cases, or 92 percent of them, judges imposed the death penalty after juries had called for a life sentence.

Indeed, more than 20 percent of the people on death row in Alabama are there because of such overrides, according to the report, from the Equal Justice Initiative, a nonprofit law firm that represents poor people and prisoners. The overrides in Alabama contributed to the highest per capita death sentencing rate in the nation, far outstripping Texas

Judge McRae himself ordered six defendants executed notwithstanding jury verdicts calling for life sentences, more than any other judge in Alabama in the modern history of capital punishment. But he never rejected a jury’s recommendation of death.

Judge McRae said he had tried to determine, in the words of an Alabama law, whether the crime in question was “especially heinous, atrocious or cruel.” Having seen a lot of cases helped him made that decision, he said. “Juries don’t know,” he said, “what is ‘especially heinous, atrocious or cruel.’ ”

Alabama judges have justified their decisions to override in favor of death on other grounds as well. Judge Dale Segrest, who retired from the bench in 2001, said he had rejected one jury’s recommendation that a white defendant’s life be spared on the ground of racial equality. “If I had not imposed the death sentence, I would have sentenced three black people to death and no white people,” he said at a sentencing hearing in 2000 in Wedowee.

Judge Charles C. Partin, who sat in Bay Minette, said the defendant before him was probably not mentally disabled, a factor that may have figured in the jury’s life verdict. “The sociological literature suggests that Gypsies intentionally test low on standard I.Q. tests,” he wrote in a 1990 sentencing order.

Florida and Delaware also allow overrides, but they are subject to strict standards. No one has been sentenced to death in Florida as a result of a judicial override since 1999, and there is no one on death row in Delaware as a consequence of an override. The most recent override in favor of death in Alabama was in March.

Judges in Delaware are appointed, and they generally use their authority to reject death sentences. Alabama judges are elected, often running on tough-on-crime platforms. Overrides are more common in election years.

“Not surprisingly, given the political pressures they face, judges are far more likely than juries to impose the death penalty,” Justice John Paul Stevens wrote in a 1995 dissent from a decision that upheld Alabama’s capital sentencing system. Much has changed in sentencing law since then, and it is not clear that the system would survive a fresh look from the Supreme Court.

One thing that is clear is that Justice Marshall, whatever he said at breakfast, was appalled by how things turned out in Alabama. “It approaches the most literal sense of the word ‘arbitrary,’ ” he wrote in a 1988 dissent, “to put one to death in the face of a contrary jury determination where it is accepted that the jury had indeed responsibly carried out its task.”

Alabama jurors are not notably squeamish about the death penalty, and those opposed to it are automatically excluded from service. Deliberations can be agonizing, former jurors say, adding that they would expect their recommendations to count.

William Davis, who served on a capital jury that unanimously voted for a life sentence, said he did not see the point of the exercise after a judge dismissed the jury’s unanimous recommendation as “not helpful.”

“If the judge is going to overrule the jury,” he said in a court hearing in Montgomery last year, “then you don’t need a jury. The jury don’t serve a purpose.”

Thursday, April 7, 2011

Madonna's Malawi Disaster: Is Kabbalah to blame?

When NEWSWEEK asked the center’s tax attorney Shane Hamilton how the Kabbalah Centre and Raising Malawi divided the money that was raised for Malawi, he replied: “I don’t know if they have a structure.”

Madonna's Malawi Disaster
Is Kabbalah to blame?
by Wayne Barrett
April 03, 2011

One year ago, Madonna squatted in the rust-colored dirt of a sprawling empty lot outside Lilongwe, the capital of Malawi, one of the poorest countries in the world. With curious villagers and invited photographers crowding around, she laid the ceremonial first brick for a planned $15 million girls’ academy, a noble mission in a nation where only 27 percent of girls attend secondary school. In a blog post on the website of her Raising Malawi foundation, she wrote that the brick, inscribed with the words “Dare to Dream,” was “not just the bedrock to a school—it is a foundation for our shared future.”

Last week it was announced that the future would not be built. Despite the fundraising success of Raising Malawi, which collected a reported $18 million in donations and spent $3.8 million on the planned academy, the girls’ school has been abandoned and the Raising Malawi foundation has imploded...

The explanation prompts more questions than it answers.

If the center was holding millions in Raising Malawi funding since 2006, why didn’t it transfer the funds when Raising Malawi ran deficits in 2009 and 2010?

And what about 2008, when the foundation had its best fundraising year, finishing with a half-million-dollar surplus, yet the center listed a $1.8 million liability from Raising Malawi on its IRS filings? How could there be a liability if it was the center that in fact owed Raising Malawi the millions it had collected over the prior two years?

When NEWSWEEK asked the center’s tax attorney Shane Hamilton how the Kabbalah Centre and Raising Malawi divided the money that was raised for Malawi, he replied: “I don’t know if they have a structure.” This fluid “intercompany debt,” as one Neilson aide described it, reinforces the charges made by critics that the center used Malawi as a fundraising tool, and that there is no way to independently determine what was really done in the name of its orphans...

Wednesday, April 6, 2011

DC. lawyer charged in multimillion-dollar insider trading scheme

DC. lawyer charged in multimillion-dollar insider trading scheme
By David S. Hilzenrath
Washington Post
April 6, 2011

By mid-March, as the government tells it, Matthew H. Kluger knew the FBI was closing in.

As a lawyer for three of the nation’s premier corporate law firms, most recently in the Washington office of Wilson Sonsini, he had allegedly stolen secrets that yielded tens of millions of dollars of insider trading profits. Now he was trying to eliminate the evidence.

Out went his computer, and his iPhone.

“Those are gone. I mean history,” he allegedly told a friend and co-conspirator.

But he was still worried.

“If they start looking at me and look at my bank records and all that other stuff . . . it could get ugly,” he said.

Sure enough. On Wednesday, the government dispatched any notion that law firms are always bastions of probity and discretion, charging that since the mid-1990s Kluger had tapped into his firms’ computer networks to extract and trade on confidential information about deals involving such blue-chip companies as Oracle, Intel and Hewlett-Packard.

Along with the financial crimes, he and a New York trader named Garrett D. Bauer are accused of engaging in a panicked cover-up that they discussed at length in telephone conversations with a third, unnamed conspirator, the alleged middleman.

In a March 17 phone call, according to a transcript of a recording, Kluger implored the middleman to get rid of a mobile phone that linked the two of them.

“I really would like to see this phone go bye-bye ASAP,” he said. “Do you want this to be our undoing?”

Worried that his fingerprints were on $175,000 in cash, Bauer allegedly urged the middleman to burn the money.

The middleman suggested that they launder the money instead — in a washing machine.

Kluger, 50, of Oakton, Va., and Bauer, 43, a New Yorker, were arrested Wednesday.

Kluger appeared in federal court in Alexandria and was being detained until a bail hearing Friday, said Rebekah Carmichael, a Justice Department spokeswoman. Bauer was being held in Newark.

An attorney for Bauer said it was too early to say how Bauer would respond to the charges. William J. Davis of Scheichet & Davis described him as “quite a pleasant fellow, very nice, quite gentle,” adding that Bauer “is in a bit of a difficult situation right now.”

Government officials were unable to identify an attorney for Kluger, and no one returned a message left at his home.

The two face criminal prosecution by the U.S. attorney for New Jersey and civil charges from the Securities and Exchange Commission.

A spokeswoman for Wilson Sonsini Goodrich & Rosati, the law firm where Kluger was until recently employed as a $290,000-a-year senior associate, said the firm was shocked to learn of the charges. The firm is giving its full support to the investigation, spokeswoman Courtney Dorman said in a statement.

The charges were the latest in a federal crackdown on insider trading that has nabbed hedge fund traders, management consultants, a former board member at Wall Street powerhouse Goldman Sachs and, recently, a Food and Drug Administration chemist accused of trading on advance knowledge of drug approvals.

The new case alleges that secrets were pilfered from the high priesthood of corporate law firms, including the New York-based firms Cravath Swaine & Moore and Skadden, Arps, Slate, Meagher & Flom...

Saturday, March 12, 2011

How often do people get away with cheating at the San Diego courthouse? Even the contractors who fix the court toilets are under suspicion

Court repair costs cluster just under limit
High number of jobs come in just under authorization threshold of $500


Saturday, February 26, 2011 at 6:55 p.m.
Court lightbulb changed under contract

Court cost to fix a squeaky door? $460.35
Court lightbulb changed under contract

A balky toilet in a basement restroom in the downtown courthouse, blinking lightbulbs in a South Bay courtroom, a runny faucet in the El Cajon courthouse.

Those three routine repair requests from local courthouses were all made over a five-day period in June. Because they were all pegged to cost less than $500, the repair work was automatically authorized by the Administrative Office of the Courts, the state agency in charge of courthouse maintenance.

The cost for each of the repairs looked like this:

•Toilet: $487.37

•Lights: $462.60


They were not the only examples of routinely approved repair work that ended up just under $500.

The Watchdog reviewed $1.6 million in billings for about 3,450 maintenance work orders for the San Diego courts in the first eight months of 2010. The data showed that by far the largest number of billings, 981 jobs or 28 percent of the total, fell between $400 and $500.

The bunching is an indication of how the court system, and taxpayer dollars, have been poorly managed, said San Diego Superior Court Judge Dan Goldstein He is a director of a group of judges around the state who have been critical of court management and pressed for reforms over the past year.

“We have a lack of oversight and costs controls and a lack of accountability at the state level, at a time when most agencies are being required to take cuts, including us,” he said.

Under the terms of the contract the courts agency inked in 2006 with a newly-formed subsidiary of the Fortune 500 company Jacobs Engineering Group of Pasadena, maintenance jobs up to $500 are approved with no initial oversight, although they are reviewed later.

A spokeswoman for Jacobs, which is based in Pasadena, did not respond to requests for comment on the findings by The Watchdog.

The provision pre-authorizing work under $500 is intended to speed along minor repairs, and not require courts or the workers to get clearance first. Philip Carrizosa, a spokesman for the court agency, said the bills are scrutinized by agency officials when submitted and “in many instances” the full amount billed is not paid.

“So the $500 threshold is not a loophole that allows the maintenance contractor to bill whatever it wants below $500. All bills are scrutinized and reviewed,” he wrote in an e-mail.

The average off all the work orders examined by The Watchdog was $467. Carrizosa noted the average of the ones under $500 was $290.

Still, the agency is considering a change in the future. He said a new maintenance contract now up for bid calls for all work under $2,000 to be done under a firm fixed price for each task, not on a job-by-job basis as is done now.

Jacobs is one of a dozen companies in the running for the new maintenance contract, which would go into effect later this year.

Courthouse maintenance costs were the subject of a hearing in the state legislature last year and have become a rallying point for critics of the court system management. A previous story by The Watchdog and media partner 10News highlighted how routine repair tasks, such as fixing squeaking doors or replacing light bulbs, frequently cost hundreds of dollars.

Kris Vosburgh, the executive director of the Howard Jarvis Taxpayers Association, said he was not surprised what the data showed.

“This is something that goes on at every level of government,” he said. “They use this fly just under the radar to run up millions of dollars. It’s a common problem and I can’t offer a solution other than more frequent auditing.”

Wednesday, February 23, 2011

Shields is not the only person arrested in Oceanside whose recorded interview has disappeared

Defendants’ Lost Voices
San Diego Reader
By Dorian Hargrove
May 26, 2010

On March 23, after deliberating for 40 minutes, a jury emerged from the jury room inside the courthouse in Vista. The 12 members had reached a verdict. As they filed into the jury box, the defendant, Michael Shields, stood beside his attorney, David Boertje. Shields’s heart pounded as the foreman announced the verdict: not guilty of assault with a deadly weapon. It was a quick and easy end to a long and difficult year.

It started on the evening of February 25, 2009, when Shields, a licensed mortgage broker and full-time college student, was driving his red Jeep Liberty southeast on Barnard Drive in Oceanside after attending guitar class at MiraCosta College.

...“I almost took the plea to avoid a very scary prison sentence,” said Shields. “I stuck to my guns against the advice of my parents and attorney. They all said the risk is too great. I knew I was innocent.”

Two days before the trial began, Boertje said, he received news from deputy district attorney Elisabeth Silva that a notation in an evidence log saying “audio CD” had been discovered. Silva told Boertje that she didn’t know what was on the audio CD.

“The recorded statement should have been something that was disclosed immediately,” Boertje said. “In the report, there was no mention of a recorded statement, no mention that they had the tape.”

“Before they released the recording, it was basically my word against the Oceanside police,” interjected Shields. “Who is the jury going to believe, the police officer or the ‘baby punching’ criminal?”

At 8:30 on the morning of March 15, the first day of the trial, Boertje went to the district attorney’s office, located one floor above the courtroom in the North County Regional Center, to listen to the audio CD. He confirmed that it was Shields’s missing statement. Silva asked Boertje if his client would like to reschedule the trial. He said no.

On the second day of trial, Officer Dominique took the stand. During cross-examination, Boertje asked him about the audio statement. Deputy district attorney Silva objected. The lawyers and judge met in a sidebar. Silva indicated that she was filing a motion to exclude the recorded statement from evidence.

“I couldn’t believe it,” said Boertje. “I said, ‘First off, you didn’t give [the recorded statement] to me until yesterday, and now you don’t want the jury to hear what my client said right after the incident?’ There was no basis to exclude it.”

The judge allowed the statement to be used in court. A week later, Shields was exonerated.

“The judge in my case was completely outraged at the district attorney,” Shields wrote to the Reader on March 23, the day of his acquittal. “[He] scolded the District Attorney and asked her why the audio statement was disclosed the day of trial. [Silva] claimed that she ‘read the police officer the riot act.’… My audio statement was crucial evidence that proved I was innocent.”

Shields, however, is not the only person arrested in Oceanside whose recorded interview has disappeared...


...The cops, while not all bad guys, have tacit permission to conduct these phony arrests, perpetrate the most heinously violent brutality on innocent, law-abiding citizens, falsify police reports and tamper with evidence, and the DA's are corrupt as hell.

...Threatening the falsely accused victims with long jail sentences, and talking them out of their right to a fair trial is the terrorism the DAs use to put innocent people away and ruin their lives with criminal records that will never be allowed to be cleared, which is a Constitutional right.

Because this is big government at the highest levels, Woody Higdon's attempts to apply justice to the misconduct and corruption within the Oceanside Police Department via complaints to the FBI, etc., will also nowhere. Most complaints of this nature go nowhere, not even with the ACLU.

The ACLU will spend hundreds of thousands to defend someone whose Islamic religious rights are violated because someone looked at them sideways, but innocent people being grossly victimized every day are s*** out of luck.

What kills me is that the police had NO EVIDENCE against Mr. Shields, and yet he was going to be CONVICTED???

Monday, January 24, 2011

Scalia appears at 'tea party' House meeting

First Clarence Thomas' wife took a leading role in a Tea Party organization that takes in large donations. Now this.

Scalia appears at 'tea party' House meeting
The justice's participation sparks new concerns about the Supreme Court's appearance of impartiality. Lawmakers said he discussed the Constitution and his judicial philosophy.
By David G. Savage and Kathleen B. Hennessey
Los Angeles Times
January 24, 2011

Justice Antonin Scalia's appearance at a meeting organized by the House Tea Party caucus and Rep. Michele Bachmann (R-Minn.) on Monday provoked new cries from liberals and some academics that conservative justices are shedding the appearance of impartiality.

The session, part of what Bachmann calls a series of constitutional seminars, was closed to the media. Lawmakers said Scalia advised them to read the Federalist Papers and to follow the Constitution as it was written.

University of Texas law professor Lucas A. Powe, a historian of the liberal Warren Court, said Scalia's appearance made the court look partisan. "He is taking political partisanship to levels not seen in over half a century," Powe said...

Thursday, January 20, 2011

Prosecutor's courtroom snark returns to haunt him

Note: San Diego District Attorney Bonnie Dumanis is on the board of the California Bar Association, which may help to explain why the bar fails to act in cases where prosecutorial misconduct is found.

Voice of San Diego asks, "Who's 'Pretty Pathetic'?"

A San Diego prosecutor got in the face of a burglary suspect during a trial, suggesting that he's "pretty pathetic" and "pretty despicable." And there was more. "According to a state appeals court in San Diego, the prosecutor also questioned the defense lawyer's integrity, suggested the attorney had coached Higgins, and described a defense psychiatrist as a hired gun who had 'attacked a victim in a rape trial,'" the San Francisco Chronicle reports.

All this sounds more "Law & Order" (or "L.A. Law" for you old school types) than real life. An appeal court is not amused: it's thrown out the guilty verdict and ordered a new trial.

Prosecutor's courtroom snark returns to haunt him
Bob Egelko
January 19 2011
SF Gate

When burglary defendant Raymond Higgins testified that he had been distraught at the time of the alleged crime because of the death of a close friend, prosecutor Christopher Lawson asked him whether it wasn't "pretty pathetic if you're using the memory of a dead 17-year-old kid as an excuse."

After the judge ruled the question improper, Higgins said he'd also been feeling guilty about not attending the funeral of his sister, who had committed suicide. "You agree that's pretty despicable if you were using that as an excuse," Lawson told him.

According to a state appeals court in San Diego, the prosecutor also questioned the defense lawyer's integrity, suggested the attorney had coached Higgins, and described a defense psychiatrist as a hired gun who had "attacked a victim in a rape trial."

Lawson used his cross-examinations to make speeches and "engaged in a pattern of misconduct that rendered the trial fundamentally unfair," the Fourth District Court of Appeal said in a ruling Thursday that overturned Higgins' conviction and granted him a new trial. He has been serving a five-year prison sentence.

The ruling comes in the wake of a report in October by the Northern California Innocence Project at Santa Clara University asserting that prosecutors in the state are seldom punished for unethical courtroom conduct. The project said it found 707 cases from 1997 to 2009 in which courts had found misconduct by prosecutors, but only six prosecutors who were disciplined by the State Bar. The bar, in response, said it would take another look at some of those cases.

Lawson, a deputy district attorney in San Diego County, was unavailable for comment. Steve Walker, a spokesman for the office, said prosecutors were reviewing the ruling.

Higgins, a businessman and Naval Academy graduate with no previous criminal record, was charged with burglary and assault for breaking into a neighbor's house in San Diego with two handguns in May 2008.

The neighbor had asked Higgins to keep an eye on her teenage son, who had gotten in trouble...