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.