Monday, March 31, 2014

Judge says no prison for child rapist because he “will not fare well” behind bars

CREDIT: Shutterstock

Rich Heir Rapes His 3 Year-Old Daughter, Gets No Jail Time Because He ‘Will Not Fare Well’ In Prison
By Ian Millhiser
Think Progress
March 31, 2014

Robert H. Richards IV does not work. He doesn’t have to. The great-grandson of Irénée du Pont, the chemical magnate who provided much of the financial backing to a failed effort to defeat Franklin Delano Roosevelt during the 1930s, Richards lives off a trust fund in a 5,800 square foot mansion he bought for $1.8 million. When he is not staying in his mansion, he might be found in his beach home “in the exclusive North Shores neighborhood near Rehoboth Beach.”

Richards is also a child rapist.

In 2005, Richards started sexually abusing his three year-old daughter. The abuse ended two years later when the girl told her grandmother that she didn’t want “my daddy touching me anymore.” When Richards’ former wife confronted him this abuse, Richards admitted to doing so but claimed “it was an accident and he would never do it again.”

And yet, Robert Richards, who raped his own child and then told her not to tell anyone so that it could be “our little secret,” will likely not spend a day in prison. Although Richards was originally charged with two counts of second-degree rape of a child — counts that carry a mandatory 10 year prison term — the prosecutor offered him a plea bargain just days before the trial. Richards admitted in open court that he abused his daughter, and he plead to a single count of fourth-degree rape, a much less serious crime with no mandatory minimum.

Though the maximum sentence for fourth-degree rape is 15 years in prison, the prosecution recommended that Richards only receive probation. And Judge Jan Jurden largely agreed. Though she sentenced Richards to an eight-year prison term, she immediately suspended the term in favor of probation. Richards, Jurden wrote in her sentencing order, “will not fare well” if he is sentenced to prison.

Sunday, March 30, 2014

Court says public documents become private as soon as they are hidden by public servants

(Updated) The California Court of Appeal has found that a public servant, using a public agency's computer, on a public agency desk, while being paid by the public agency to do the agency's business, is NOT creating a public record as long as that person uses a private email account. It's ridiculous to say that an email created under such circumstances is not a public record within the meaning of the California Public Records Act.

But I guess this decision makes it easy to figure out why public officials and employees use private email to do public business.

Why don't they use their work email accounts? The answer seems obvious: to skirt the laws regarding public records. And now the California Court of Appeal has given its stamp of approval to this practice.

Public servants who want to keep their actions secret breathed a sigh of relief when the California Court of Appeal made it easy for them to conceal documents regarding public issues.

The law says that “‘Public records’ includes any writing containing information relating to the conduct of the public’s business prepared, owned, used, or retained by any state or local agency regardless of physical form or characteristics."

Clearly, when a "state or local agency" prepares a document, it is an actual human being, an official or employee or contract worker who is preparing it, not a disembodied "public agency".

The law doesn't say that the document must be prepared AND retained by the agency in order to be a public record. It says the documents must be prepared OR retained by that agency. If a public servant is being paid by the taxpayers to work on a public issue, then his or her writing about that issue is a public record.

Yet San Jose attorney Rick Doyle says that documents that "aren't retained or held by the public agency" aren't public records. Public servants simply have to hide public documents in order for those documents to become private! And the Court of Appeal agreed with him.

The California Court of Appeal basically found in the San Jose emails case that if a document is not in the possession of the public entity, then it isn't public. Would this also apply to paper documents? Logic would seem to require that it would.

These shredded documents survived a burning spree in a parking lot at San Ysidro School District

Apparently, a document can be switched at will from public to private. In the San Jose case, all that is needed is to send it using a private email account rather than a public email account. So why is the FBI investigating Manuel Paul of San Ysidro School District for burning documents?

Perhaps public officials aren't off the hook quite yet. An agency may not have to turn over documents that have been converted from public to private, but the court has NOT found that the act of conversion itself is legal. Obviously, it would be extremely difficult to turn over a document that had been incinerated. (Manuel Paul was a client of Dan Shinoff (below), who applauded the Court of Appeal decision.)

Richard Doyle

Attorney James McManis says, "When you think about it -- it's just nuts. If they can hide stuff by using their private devices, that's no way to run a railroad."

James McManis

I have to agree with him. The decision is clearly a gift from the Court of Appeal to those who want to circumvent the California Public Records Act.

San Diego school attorney Dan Shinoff, who is known for working hard to keep secret the actions of school officials, spoke for many when he applauded the California Court of Appeal for protecting public servants who prepare, use and retain written information about public business in their private email accounts.

Dan Shinoff of Stutz Artiano Shinoff & Holtz

Mr. Shinoff, who represents 40 of the county's 42 school districts, applauded the judge's ruling: “It's my opinion that the Court of Appeal correctly recognized that the reach of the California Public Records Act is limited by the Legislature to records kept by the agency and not private communications."

In my case, Maura Larkins v. Richard Werlin, Mr. Shinoff made copies of documents created by employees at Chula Vista Elementary School District, and then told those employees to keep the originals in their homes. Later Mr. Shinoff and his partner Ray Artiano said in a deposition that the records couldn't be found at their law office. Since Mr. Shinoff represents 40 of the 42 districts in San Diego County, I'm guessing that there are a lot of public documents stashed away in private homes in the county. This makes me wonder if Mr. Shinoff is keeping evidence from my case squirreled away at his house.

The San Jose decision concludes:

We conclude that the language of the CPRA does not afford a construction that imposes on the City an affirmative duty to produce messages stored on personal electronic devices and accounts that are inaccessible to the agency, or to search those devices and accounts of its employees and officials upon a CPRA request for messages relating to City business.

Whether such a duty better serves public policy is a matter for the Legislature, not the courts, to decide. In addition, it is within the province of the agency to devise its own rules for disclosure of communications related to public business.

The obstacles noted by petitioners and the League—the legal and practical impediments attendant to the extra task of policing private devices and accounts would also be addressed more appropriately by the Legislature or the agency, not the courts.

I certainly agree that it is burdensome for public agencies to search for public records in someone's private email account. So why do those agencies allow officials and employees to use personal accounts for public business?

We clearly need a law forbidding public servants from using private email for public business and from using private storage for public records. Until then, I expect that ethically questionable transactions will take place through private email--and there won't be much reason to request public emails. The important information won't be there. The California Public Records Act won't be worth much.

San Jose court: Government workers can keep messages from personal devices private
By Mike Rosenberg
Mercury News

SAN JOSE -- In a decision that draws a line on public access to government records, an appeals court ruled Thursday that government workers in San Jose and beyond can keep their communications private if they send them on a personal device like a cell phone.

The Sixth District Court of Appeal decision directly affects South Bay counties and sets legal precedent in California that could influence judges in other parts of the state, although the issue is likely to remain unsettled until the California Supreme Court weighs in.

Last year, open records advocates had defeated San Jose City Hall in the lower courts in a case over whether the city's 5,500 workers had to make public messages sent on their private devices. Typically, for instance, emails sent or received on a city's system would be subject to disclosure under the California Public Records Act. But it was not clear whether the same employee could keep a government-related message sent from a personal Gmail account private.

Media groups and open government activists argued officials could skirt the spirit of the landmark 1968 Public Records Act by texting, calling or emailing about government business with their personal devices. But city officials, aided in court by the California League of Cities, said they have no control over the employees' personal accounts and it would be costly and unwieldy to compile the records.

The city emerged victorious Thursday in the 6th District following a hearing in San Jose earlier this month. In a 3-0 ruling, justices Franklin Elia, Conrad Rushing and Eugene Premo said it should be up to the California Legislature to determine which records are public -- not the courts.

The decision reversed a March 2013 ruling from a Santa Clara County Superior Court judge who said "a public agency could easily shield information from public disclosure simply by storing it on equipment it does not technically own."

But James McManis -- the attorney for activist Ted Smith, who first sued to get access to the records -- said "they haven't heard the last from us." His group will petition the state's highest court for a final review, but it's up to California Supreme Court justices to decide whether to accept the case.

"When you think about it -- it's just nuts," McManis said. "If they can hide stuff by using their private devices, that's no way to run a railroad."

City Attorney Rick Doyle said the California records law, passed in an age well before texting or email, "never contemplated" that private devices would be subject to records requests.

"These aren't retained or held by the public agency and individuals aren't the public agencies," Doyle said. "They may work for the public agency, but it's not the same thing."

Doyle said San Jose has among the best sunshine ordinances in the state. Ironically, he noted, the city in 2010 approved a policy that makes messages about public business sent on private devices public, but it only applies to the City Council and their staff. But even then, the rule is tough to enforce.

"They're on the honor system on that," Doyle said. "They're supposed to turn (the records) over."

Ruling favors secret Gmail for officials
Appeal court says cities can't be required to disclose personal accounts
By Ashly McGlone
March 28, 2014

A court ruling out of San Jose involving emails of public officials could have implications in San Diego and across the state.

A three-judge appeals panel struck down a March 2013 decision by Santa Clara County Superior Court Judge James P. Kleinberg, who had found that the emails and texts of public officials using their personal accounts or devices become public records if they are discussing government business.

“Politicians read into the law what they want to read into the law in order to keep their secrets secret,” said San Diego attorney Cory Briggs, who has filed a similar lawsuit here. “Gmail is going to get a lot busier with politicians’ communications in light of this ruling. Good day to buy stock in Google, and it’s a sad day for open government and democracy.”

The ruling reversed Kleinberg’s order for the City of San Jose to turn certain messages over to resident Ted Smith, who sought them in a public records request.

The appeals court found that a public official’s Gmail or Yahoo account is not in possession of the city, and therefore can’t be considered public.

“Any control the city has over its employees' behavior is not equivalent to control over, or even access to, the text messages and e-mail sent to and from its employees' private devices and accounts,” Associate Justice Franklin D. Elia wrote. “That city council members may conceal their communications on public issues by sending and receiving them on their private devices from private accounts is a serious concern; but such conduct is for our lawmakers to deter with appropriate legislation.”

San Jose City Attorney Rick Doyle said of the victory, “I think the court recognizes privacy interests of individuals, including public officials,” adding that the earlier ruling “was too broad and the Legislature hasn’t gone there yet.”

“It’s the reality of technology getting beyond what the law is,” said Doyle, who has served as city attorney for more than 14 years. “Judge Kleinberg was equating ‘you are a public official,’ ‘you are the city’ and that’s just not true.”

Attorney Dan Shinoff, who represents 40 of the county’s 42 school districts, applauded the judge’s ruling.

“It’s my opinion that the Court of Appeal correctly recognized that the reach of the California Public Records Act is limited by the Legislature to records kept by the agency and not private communications,” Shinoff said.

Members of the plaintiff’s legal team said they would seek a review from the state Supreme Court in hopes of appealing the decision that Attorney James McManis calls “dead wrong.”

“We are supposed to have transparency and this is prompting secrecy,” McManis said. “Now they have the green light to put this stuff on private devices with the comfort that no one is ever going to find out.”

“They are supposed to be serving the people and are not supposed to be conducting business behind closed doors and emails.” McManis said, “If they don’t want people looking at their emails then they shouldn’t use private emails. That’s a real simple choice for them to make.”

State public records law says in part, “‘Public records’ includes any writing containing information relating to the conduct of the public’s business prepared, owned, used, or retained by any state or local agency regardless of physical form or characteristics.”

Donna Frye, president of the nonprofit Californians Aware and a former San Diego city councilwoman, said the ruling doesn’t comport with a plain reading of state public records law and opens the door to additional legal problems.

“They can essentially conduct full meetings in full view of the public. They can sit up there and form collective concurrences and violate not only the Public Records Act, but the Brown Act,” Frye said. “Just because technology allows people to communicate in different ways, it doesn’t mean the intention about what is a public record has changed… I hope the Legislature will act so that it’s statewide, so that it doesn’t have to be done on a city-by-city or county-by-county basis.”

In the meantime though, Frye’s group is still working with San Diego council members David Alvarez and Marti Emerald to get a city charter amendment onto the November ballot that would require city officials to copy a city email on city-related communications sent from a personal account, require emails to be kept for two years and deem certain records of city contractors public.

The Court of Appeal ruling may buttress the position the city of San Diego has taken in two lawsuits by Briggs seeking personal emails of public officials discussing government business. The City Attorney’s Office has taken the position that the emails are not public. Officials there declined to comment on the ruling. A hearing is scheduled for April 11.

See related post at San Diego Education Report blog.

Update Mar. 31, 2014: "We are not hiding anything."

I couldn't help thinking of the public agencies in California whose officials and employees use private emails to conduct business when I saw another story about authorities who don't want to release information--but insist that they're not trying to hide information from the public.

Perhaps the Malaysian government gave a wrong quote because one of their lawyers took the recording--and the transcript--home for safe keeping. I think the philosophy might be pretty much the same in both places: keep the truth secret because it might contradict the story we come up with.

MH370: New last words from cockpit: 'Good night Malaysian three seven zero'
By Catherine E. Shoichet, Faith Karimi and KJ Kwon, CNN
March 31, 2014
Source: CNN

They were words heard around the world as investigators searched for the missing Malaysia Airlines plane.

Weeks ago, Malaysian authorities said the last message from the airplane cockpit was, "All right, good night."

The sign-off to air traffic controllers, which investigators said was spoken by the plane's copilot, was among the few concrete details officials released in a mystery that's baffled investigators and drawn global attention since the Boeing 777 disappeared with 239 people aboard mid-flight on March 8.

There's only one problem. It turns out, it wasn't true.

On Monday, Malaysia's Transport Ministry said the final voice transmission from the cockpit of Flight 370 was actually "Good night Malaysian three seven zero."

And authorities are still trying to determine whether it was the plane's pilot or copilot who said them.

The new language is routine and is not a sign that anything untoward occurred aboard the flight, said CNN aviation analyst Mary Schiavo.

But the change in wording weeks into the search for the missing plane raises questions about how Malaysian officials have handled the investigation.

"It speaks to credibility issues, unfortunately," Schiavo said.

"We haven't had a straight, clear word that we can have a lot of fidelity in," said Michael Goldfarb, former chief of staff at the U.S. Federal Aviation Administration. "We have the tragedy of the crash, we have the tragedy of an investigation gone awry and then we have questions about where we go from here."

No matter what the pilots' last words were, it's hard to understand what they mean without more details from authorities about what they said and how they said it, CNN aviation analyst Miles O'Brien told "The Lead with Jake Tapper" on Monday.

"Without the preceding information ... either the transcript or the recordings themselves, it's difficult to know what any of that really means," he said. "And that's the problem with this investigation, which has been so opaque."

Malaysian authorities have defended their handling of the situation.

Acting Transportation Minister Hishammuddin Hussein said Monday that authorities were not hiding anything by declining to release some details of the missing flight. Some details are part of ongoing investigations into what happened to the plane, he said.

"We are not hiding anything," he said. "We are just following the procedure that is being set."...

A culture of silence?? The following article talks about "corporate culture". But I think we're talking about human nature. Reflexive dishonesty seems to be rampant. GM will pay, but I doubt that it will significantly change its corporate culture. Consumers will continue to be in danger.

Why did GM take so long to respond to deadly defect? Corporate culture may hold answer.
By Michael A. Fletcher and Steven Mufson
Washington Post
March 30,2014

The part costs less than $10 wholesale. The fix takes less than an hour. A mechanic removes a few screws and connectors, takes off a plastic shroud, pops in the new switch, and the customer is back on the road.

It’s relatively cheap and easy to replace the flawed ignition switch that has been blamed for at least 13 deaths, including a fatal June 2013 crash in Quebec newly linked to the defect. Yet General Motors waited more than a decade before recalling 2.6 million Chevrolet Cobalts and other small cars.

GM’s failure to alert customers sooner could end up costing the automaker hundreds of millions of dollars in fines and much more in reputational damage. It has already cost the lives of the drivers, who perished at least in part because the faulty switches suddenly shut off their cars, stiffening brakes and power steering and disabling air bags.

With so much at stake, why didn’t GM act sooner?

The answer, according to many people familiar with the automaker, is a corporate culture reluctant to pass along bad news...

Thursday, March 27, 2014

County of San Diego awards contract for services to Stutz Artiano Shinoff & Holtz

See all posts re Stutz Artiano Shinoff & Holtz.

County of San Diego
PUBLISHED: Thursday March 27, 2014


...11. Approve and Authorize the President/CEO to Negotiate and Execute an Agreement with Stutz Artiano Shinoff & Holtz APC for General Legal Services: The Board is requested to award a contract...

General Counsel Report:
Business and Travel Expense Reimbursement Reports For Board Members, President/CEO, Chief Auditor and General Counsel When Attending Conferences, Meetings, and Training at the Expense of the Authority...

Tuesday, March 25, 2014

Officials are working hard keeping secrets in San Diego's public schools

UPDATE: March 27, 2014 ruling from the Court of Appeal in a San Jose public records case.

Paper’s ‘sunshine week’ project seeking private-account emails on public business is mostly cloudy
By Terry Carter
ABA Journal
Mar 24, 2014

The San Diego Union-Tribune got very practical with its celebration of the recent national Sunshine Week—itself the brainchild of the American Society of News Editors for educating the public on the need for more openness and less secrecy in government.

The U-T published a lengthy feature based on its request for certain email records from more than 100 government administrators across the region. The newspaper asked to see samples of personal emails discussing the public’s business—emails sent from workers' Gmail, Yahoo or other personal accounts.

The effort did not stuff the newspaper's inbox. Samples came back from just two of the more than 100 administrators queried: Grossmont Healthcare District and the city of Lemon Grove.

[Maura Larkins' comment: In my experience, Lemon Grove is one of the most ethical public entities in San Diego county.}

Some responded that they had no such records, some said the emails are not for public viewing and others simply did not respond.

The San Diego law firm Stutz Artiano Shinoff and Holtz represents 40 of San Diego County 42 school districts, and told the newspaper that emails in private accounts don’t fall under the California Public Records Act “because the district does not have actual or constructive possession over any such private account.”

The firm pointed to a California appeals court decision in 2012 concerning the City of Selma in Fresno County, which said that an agency has constructive possession of records “if it has the right to control the records, either directly or through another person.”

But the U-T also asked for emails sent to and from the top executive of each local government agency. In March 2013, a Santa Clara County Superior Court judge ruled in a case involving San Jose officials that government business done through private email accounts “reasonably falls within the definition of a record ‘retained' by the city.”

San Jose is appealing.

“My sense is that many local governments haven’t updated their policies to cover what happens with personal email,” Jodi Cleesattle, a San Diego lawyer and member of the Society of Professional Journalists’ Freedom of Information Committee.

Friday, March 21, 2014

Too much collegiality among judges at the San Diego Superior Court?

UPDATE: Bonnie Dumanis is no longer on Judge Lisa Schall's list of endorsers. Here's the earliest list I can find. Bonnie Dumanis was no longer on the list on March 21, 2014 when I downloaded a new version of the list from Schall's website.

I understand that San Diego Superior Court judges don't want to be unseated in elections. In fact, I agree that judges should not be subject to elections. I'd like to see a lottery of highly qualified applicants for judicial positions. (The appointment process is almost as political as elections.)

The San Diego Superior Court judges are all interested in protecting the status quo. They've all endorsed Schall.

But the upcoming election battle between sitting judge Lisa Schall and challenger Carla Keehn seems to offer an opportunity for judges and lawyers in San Diego to make some changes to a system that has produced so many abuses. . One of those abuses is the injunction against this website that Mr. Shinoff's law firm got from Judge Judith Hayes. That injunction was thrown out by the Court of Appeal.

If you look down at the bottom of Judge Schall's list of endorsements as of March 21, 2014, below the bigshot right-wingers and retired judges, you'll see the endorsements by local "professionals". Two facts are noteworthy:

1. the list is very short;

2. Judge Schall is endorsed by not one, but TWO, of the lawyers for Manuel Paul and other school officials who have been charged with (and in some cases pleaded guilty to) public corruption--(Daniel Shinoff and James Pokorny). Why do these lawyers support Schall? Perhaps Shinoff is grateful to Schall for dismissing the Sarquilla case. Or maybe he figures this is a chance to curry some favor with ALL the judges of the Superior Court. He figured out what can happen to people opposing a sitting judge. (See more on Mr. Shinoff at the bottom of this post.)

School lawyer Dan Shinoff
Stutz Artiano Shinoff & Holtz

School lawyer Dan Shinoff and James Pokorny
are two of the seven "professionals" who have
endorsed Judge Lisa Schall over challenger Carla Keehn.
Pokorny (not pictured) is the criminal lawyer for
several of Shinoff's clients.

Judge Lisa Schall's
Professional Endorsements:

Mr. Daniel Shinoff [civil attorney for several school officials before and after they were charged with public corruption]
Ms. Lori Clark Viviano (child custody attorney)
Mr. Douglas Brust [attorney Douglas V. Brust, I assume]
Ms. Sharon Blanchet [another family law attorney; she is a co-defendant with Schall in this case]
Dr. Nolan Bellisario [a dentist--how many people with that name could be living in San Diego?]
Mr. Bruce Beals [yet another family law attorney]
Mr. James Pokorny[criminal defense attorney for several local school officials, many if not most of whom were/are Daniel Shinoff clients]
Mr. Casey Gwinn, President, Family Justice Center Alliance

Meanwhile, federal prosecutor Carla Keehn is endorsed by the following on March 21, 2014:

Carla Keehn's
Professional Endorsements

Greg Vega, Esq.
Alex Kreit, Esq.
Alex Landon, Esq.
Bridget Kennedy, Esq.
Charles Rees, Esq.
Craig Leff, Esq.
Daniel Drosman, Esq.
Daniel Smith, Esq.
David Lamb, Esq.
Ellis Johnston, Esq.
Eric Alan Isaacson, Esq.
Eric Mitnick, Esq.
Ezekiel E. Cortez, Esq.
Francisco Sanchez, Esq.
Jason Forge, Esq.
Jedd Bogage,Esq.
Joseph Daley, Esq.
Linda Hughes, Esq.
Lisa A. Damiani, Esq.
Mark Strazzeri
Mayra Garcia, Esq.
Michael E. Burke, Esq.
Michael Stein, Esq.
Paul Turner, Esq.
Rafi Rokach
Sharon Roberts
Sylvia Baiz, Esq.
Ted Pintar, Esq.
Jacqueline Crowle, Esq.
William Mathew Brown, Esq.
(partial list)

More on Lisa Schall's supporter Dan Shinoff:
Mr. Shinoff's law firm tried valiantly to get the Court of Appeal to agree that I, a retired school teacher, should be forbidden from speaking his name, or the name of his firm. Stutz Artiano Shinoff & Holtz law firm has spent over 6 years trying to shut down my little blog that gets 300 hits on a good day. Why would a large firm of lawyers that rakes in millions from local school districts try to get the Court of Appeal to approve an obviously unconstitutional prior restraint by San Diego Superior Court Judge Judith Hayes? The Court of Appeal declined to uphold the preposterous injunction. On the other hand, Shinoff's firm must have been pleased when the American Bar Association published a glaringly incorrect report about the case.

Thursday, March 20, 2014

San Diego Democrats Vote to Endorse Carla Keehn for Superior Court Judge to replace Lisa Schall in June 2014 election

Challenger Carla Keehn, federal prosecutor

See also Education attorney Dan Shinoff steps up to support embattled judge Lisa Schall. See all posts re Carla Keehn.
See all posts re Judge Lisa Schall.

For the first time in recent memory, we have a challenger for San Diego Superior Court Judge who isn't a right-wing extremist. San Diego Democrats have endorsed Carla Keehn to replace Judge Lisa Schall.

I still think judges should be appointed, not elected. I'd like to see them chosen from a pool of qualified candidates by lottery. Judicial appointments are almost as political as elections (see second story below about Lisa Schall's rebuke for politicking for the governor who appointed her, George Deukmejian. But for now, it's nice to see a serious person challenging judges who ignore the law.

Judge Lisa Schall

San Diego Democrats Vote to Endorse Carla Keehn for Jurist Seat 20
Posted on March 19, 2014
Katy's Exposure

The San Diego Democratic Party’s Central Committee met on the evening of March 18th in Kearny Mesa. According to Committee Chair Francine Busby, last night’s packed room was an unusual occurrence for their committee meetings. The crowd overwhelmingly voted “Aye” to endorse Carla Keehn as the best candidate for San Diego County Superior Court jurist seat 20. Committee member and Oceanside City Councilwoman, Esther Sanchez, spoke to delay the endorsement vote until April. She was one of only three or four ”Nay” votes heard.

The incumbent judge in seat 20 is Lisa Schall. Appointed to the bench 28 years ago by Governor Deukmejian, her ballot statement claims she is endorsed for the upcoming June 3rd election by ”All 125 judges of the San Diego Superior Court”. Her website claims endorsement of the statewide jurist organization, the “Alliance of California Judges”.

San Diego Superior Court Judge Paula Rosenstein was appointed to the bench by Governor Brown in late 2012. In February of this year, she and fellow sitting judge, David Rubin, caused Ms. Keehn to lose the election endorsement of Tom Homann LGBT Law Group by questionable means. Judge Rosenstein also spoke at the February Democratic Party’s meeting against a Keehn election endorsement. She did not attend last night’s meeting.

Loud cheers went out in the crowd when Keehn took the podium to speak before votes were cast last night. Seems the local Dems understand that by law, Thou Can Challenge a Sitting Judge!
Question regarding the following story: would Judge Schall have continued to do favors for Governor Dukmejian if Mike Aguirre had not been present at the Southland Club political forum? Would any other lawyer have filed a complaint? Lawyers willing to speak truth to power are rare. The California Bar Association is basically a business group, dedicated to keeping the money flowing to its pockets from a well-oiled justice system. It does not seem to be much interested in promoting ethics in our legal system.

Judge's Credibility Lacking
Los Angeles Times
September 28, 1986

As a judge of the San Diego Municipal Court, Lisa Guy-Schall from time to time is called upon to consider the credibility of witnesses. We can't help wondering how she would react to a witness who told the same kind of story she told last week when she was accused of violating the Code of Judicial Conduct.

The trouble started when Guy-Schall showed up to speak on behalf of Gov. George Deukmejian at a candidates' forum sponsored by the Southland Club for Business and Professional Women. Attorney Michael Aguirre, a Democrat who is not known for his reluctance to enter a controversy, was at the meeting representing Deukmejian's opponent, Los Angeles Mayor Tom Bradley.

Aguirre filed a complaint with the California Commission on Judicial Performance alleging that Guy-Schall's talk was a violation of judicial ethics guidelines that prohibit judges from endorsing or campaigning for candidates for non-judicial office.

Guy-Schall responded that she was unaware the meeting the Deukmejian campaign asked her to address was political. She said she never saw the flyer that clearly advertised the meeting as a political forum, and since she arrived late and spoke first she did not get the true sense of the meeting until Aguirre began to criticize her in his own speech.

Guy-Schall said her speech was not "a typical campaign talk," but rather addressed the progress of women in business and industry during the last four years.

" . . . Naturally, Governor Deukmejian came into it," she said.

It's hard to imagine a judge being quite so naive. We suspect--and hope--that were this a case in Municipal Court, Judge Guy-Schall would find witness Guy-Schall lacking credibility.

Saturday, March 15, 2014

Lawyers who skipped the First Amendment: Michelle Bachmann, Judith Hayes (who is now a judge) and the partners at Stutz law firm

Michele Bachmann (top) and Judge Judith Hayes

Michele Bachmann is calling on the Feds to imprison everyone criticizing the Koch brothers.

Daily Kos notes, "Bachmann, who must have skipped class when the First Amendment was taught at her law school, believes critics of Charles and David Koch should be indicted on RICO anti-racketeering charges."

Bachmann attended Oral Roberts University School of Law. Perhaps they teach the Constitution differently there, but Judge Judith Hayes knows better. She attended University of San Diego School of Law. So why has she pretended, in Stutz v. Larkins, that she doesn't know what the First Amendment says?

Education attorney Dan Shinoff and his partners at Stutz Artiano Shinoff & Holtz clearly feel the same way about the Constitution as Michele Bachmann and Judith Hayes. Stutz law firm asked Judge Judith Hayes to put me in jail for MENTIONING THEIR NAMES!

The law schools attended by the three major Stutz law firm partners are Western State (Dan Shinoff) and University of San Diego SOL(both Ray Artiano and James Holtz).

In fairness to University of San Diego, it should be mentioned that USD SOL Professor Shawn Martin wrote the Reply and gave the oral argument that resulted in this Aug. 5, 2011 Court of Appeal win for Maura Larkins. Professor Martin didn't seem to have much trouble convincing the Court of Appeal that the Constitution vehemently forbids such an exceedingly broad prior restraint on speech.
In fact, he seemed to convince Stutz attorney Jack Sleeth, as well. When the presiding judge asked Mr. Sleeth if he had any case law to back up his firm's position, he admitted that he did not--even though he had searched long and hard for such case law. "I tried, believe me, I tried!" he told the appeals panel.

Perhaps the law schools that have most reason to think about this issue are Thomas Jefferson, where Ray Artiano currently teachers, and Cal Western, where James Holtz gives classes.

I suspect that the only reason Judge Hayes didn't comply with Stutz law firm's request to put me in jail was that she was afraid the news media would pick up the story. At most other times she has been incredibly compliant with the requests of Stutz Artiano Shinoff & Holtz law firm, as detailed in my current appeal.

Friday, March 14, 2014

Astronaut's mom helps overturn murder conviction

Joyce Ride

Astronaut's mom helps overturn murder conviction
By Thom Patterson
March 14, 2014

Sometimes the act of one person can alter the entire course of someone else's life. For Joyce Ride, that act was befriending a prisoner named Gloria Killian. Their friendship marked the beginning of an amazing journey for both women.

Private eye finds jaw-dropping proof of a plea deal for testimony

(CNN) -- After almost 17 years in prison, this was it: This was The Moment.

Gloria Killian's murder conviction had been overturned. Carrying a small bag of her belongings, she walked out of prison as a free woman.

Only ex-prisoners can fully know the emotions that overtake someone during such a moment. It's a mix of two feelings: joy -- for surviving their ordeal -- and fear about the challenges they surely will face in the outside world.

For Killian's friend Joyce Ride, then in her late 70s, picking up Killian was also very emotional. "Seeing her walk out was a really great joy," Ride told CNN, recalling that day in 2002. "It was like a load was lifted off my shoulders."

Murder case breakthrough: The letter (VIDEO)

The two women noticed a crowd of inmates and visitors had gathered to watch this magic moment. Suddenly the inmates started waving goodbye.

The sendoff was sort of a thank-you note. "Gloria was very popular," Ride said. Killian had used her education as a former law student to perform legal work for some of the inmates.

Killian settled into Ride's passenger seat and Ride steered toward the exit. "We did a lap around the parking lot to wave back at them," said Ride.

Half an hour later, the two friends enjoyed a meal at an Italian restaurant, where Killian savored her first glass of wine since 1986. For someone sentenced to 32 years to life, it was a sweet victory following a hard-fought journey.

Six suitcases of silver

It all started in 1981, when Stephen DeSantis -- disguised as a phone repairman -- entered the home of elderly coin collector Ed Davies and his wife, Grace, in suburban Sacramento, California. According to the Ninth U.S. Circuit Court of Appeals, DeSantis tied up the couple and was joined inside the house by his cousin Gary Masse. Ed Davies was shot and killed. His wife was also shot, but survived. The cousins stole six suitcases of silver.

After an anonymous phone tip accused Masse and DeSantis, police went on the hunt. "When officers attempted to find Masse, they encountered his wife, Joanne, who told the officers that a woman named Gloria planned the robbery," appeals court documents said.

Killian was a former law student in her 30s who'd never been in trouble with the law. Masse's wife told police her husband had met Killian through a mutual friend, according to Killian's book, "Full Circle." Police questioned Killian and held her without bail for about four months.

She told police she was innocent and had never met Masse, and was released for lack of evidence. Then, without warning a year later, police locked Killian away again without bail. Masse had suddenly told authorities that Killian was the crime's mastermind.

For a time, the death penalty loomed over Killian, but in 1983 the California Supreme Court changed the rules regarding the execution of accomplices to murder. That ruling made Killian eligible for bail until her trial began, more than two years later.

Although Masse implicated Killian at the trial, his cousin DeSantis had testified at his separate trial that "Killian was not involved in the crime in any way and that he had never even met or heard of Killian," according to court documents.

But the jury believed Masse's story and convicted Killian on charges of murder, robbery and conspiracy. She was locked up at the California Institution for Women prison at Chino.

'She probably wasn't a criminal'

It wasn't until the early 1990s that Joyce Ride came to the rescue.

She was visiting women inmates as a member of Friends Outside, one of many nonprofits across the nation that help inmates and their families cope with incarceration and transitioning to and from prison life. By supporting prisoner visits by friends and family members, Friends Outside says, it reduces stress among prisoners, preventing despair and unhealthy behavior.

Ride had already raised two daughters as a California housewife. One had grown up to become a Presbyterian minister. The other, the late Sally Ride, had become NASA's first woman astronaut.

I'm annoyed by injustice. Profoundly annoyed. --Joyce Ride, prison volunteer

A nun who volunteered by visiting women in jail inspired Ride to learn more about why so many women who are victims of domestic abuse end up in prison. After her husband died, Ride began dedicating many of her days to visiting incarcerated women. "It interested me," she said.

Ride's younger daughter, the minister, understood. But it confused her astronaut daughter. "Sally couldn't figure out why I was visiting prisons," Ride said. Compared to her work at NASA, she said, "it was a whole other world."

It was pure coincidence that Joyce Ride met Killian in prison. They hoped to work together to help women inmates who had suffered from domestic violence.

"Gloria had a good sense of humor and we just got along very well," Ride remembered. After about a year of visits, "it dawned on me she probably wasn't a criminal. So I asked her why she was there."

Killian told Ride her story.

Ride was convinced Killian was innocent. She felt that she had to do something.

Despite Killian's objections, Ride started financing a private investigation and legal battle that eventually would win Killian's freedom.

"I was willing to be stubborn and do what it takes," Ride said. "Of course when I started out I didn't know what it was going to cost." The decade-long battle cost Ride about $100,000. She sold stocks to raise money for Killian's defense and had to pay taxes on that income, she said.

Ride's private investigator, Darryl Carlson, uncovered a damning piece of evidence:

It was a letter that proved the prosecution's star witness, Masse, had struck a deal. In exchange for leniency, Masse testified that Killian was the master planner of the home invasion and murder.

Killian's prosecutor had never shared that letter with Killian's lawyers during the original trial.

Read the prosecutor's letter

In hopes of overturning the conviction, Killian's lawyers used this and two other letters to appeal to the U.S. Ninth Circuit Court of Appeals.

Circuit Judge Michael Daly Hawkins wrote that the letters "exposed Masse's motivation to lie and tended to show that he did lie." The letters made Masse's testimony worthless and "without it, there was no case," Hawkins wrote.

Hawkins noted that one of the other documents discovered by Killian's team was a letter Masse "wrote to the prosecutor shortly after Killian's trial in which he emphasized that he 'lied (his) ass off on the stand' for the government."

Read the official transcript of Masse's letter

Read the opinion of the Ninth U.S. Circuit Court of Appeals

Eventually, prosecutors dismissed the charges against Killian.

The ordeal was over.

But not before Killian had spent nearly two decades behind bars.


In 2008, State Bar of California prosecutors brought "prosecutorial misconduct" disciplinary charges against the prosecutor, Christopher Cleland. The court ruled Cleland was "culpable of failing to disclose exculpatory evidence (one letter) to the defense..." As a result, the court determined Cleland should receive an "admonishment" — which is considered neither discipline nor exoneration.

Read the California State Bar Court's decision

Now, a dozen years after her release, Killian and Ride are still supporting each other as the best of friends -- sharing Ride's home in Claremont, California.

"All of Gloria's relatives died while she was in prison," Ride said. "So, when she got out, I offered her a place to stay." They've recently taken in a third housemate, a woman Killian befriended in prison.

In the decade since her release, Killian has raised money to help women prisoners. She has founded an advocacy group, the Action Committee for Women in Prison. She also tells her story on the speaking circuit.

At age 90, Ride isn't stopping either. She's still volunteering and visiting inmates.

"Prisoners are persons like the rest of us, and they've made mistakes," Ride said. "I think prisoners need friends on the outside."

For Killian, having that friend made all the difference in the world.

Ride says America should do more to support the nation's prison population. What do you think? Share your thoughts in the comments...

Tuesday, March 11, 2014

Name partner of shuttered Fla. law firm faces criminal case, wants to ‘get on with his life’

Name partner of shuttered Fla. law firm faces criminal case, wants to ‘get on with his life’
By Martha Neil
ABA Journal
Mar 7, 2014

A name partner of the shuttered Florida law firm led by imprisoned swindler Scott Rothstein has been criminally charged with conspiracy to violate federal election laws.

Russell Adler was charged in a criminal information filed by federal prosecutors in Fort Lauderdale, which usually signifies that the defendant is cooperating with the government, according to the South Florida Business Journal's Scott Rothstein: Picking up the Pieces blog and the Sun Sentinel.

His lawyer, Fred Haddad, told the Sun Sentinel that the recent conviction of attorney Christina Kitterman, who formerly worked for Rothstein Rosenfeldt Adler, and a wire fraud plea by Douglas Bates, a lawyer from another firm accused of helping Rothstein with a Ponzi scheme he operated while running the Fort Lauderdale-based RRA, persuaded Adler that it was time.

"Obviously, since Rothstein's performance in the Kitterman trial and Bates' plea, things have come together for the government," Haddad told the newspaper, referring to Rothstein's testimony in the Kitterman case. "Russell is charged with illegal campaign contributions and wants to resolve this and get on with his life."

The articles do not provide details of the charge against Adler. Others connected to RRA have previously been accused of making large contributions to Republican election campaigns, including those of former presidential candidate John McCain and former Florida Gov. Charlie Crist, for which the donors allegedly were illegally reimbursed by law firm "bonus" checks.

Rothstein is serving a 50-year federal prison term in the witness protection program after being convicted of swindling investors of some $1.2 billion in various schemes. He has been cooperating with the government and lawyers for swindled investors in various matters, reportedly hoping for a sentence reduction.

See also: (Feb. 2011): "Ex-Rothstein Partner Will Pay Up to $500K to Settle Clawback Suit re Alleged Excess Compensation" (Dec. 2011): "Convicted in $1.2B Ponzi Scheme, Scott Rothstein Said in Depo That 2 Law Firm Partners Benefited"

Wednesday, March 5, 2014

Omar Passons, United Way board member and lawyer for Stutz Artiano Shinoff & Holtz

Omar Passons, an attorney, United Way board member, Rachel’s Women’s Center volunteer, and resident of North Park, has a passion for Mid-City. Omar Passons, an attorney, United Way board member, Rachel’s Women’s Center volunteer, and resident of North Park, has a passion for Mid-City.

See all Omar Passons posts on this blog and Omar Passons posts on SDER blog. Former foster child returns many favors
By Karla Peterson
March 4, 2014

In the ever-expanding adventure that is Omar Passons’ life, there is always room for one more great thing. One more North Park restaurant to visit. One more craft beer to try. More bike paths to travel with wife Erin, more “House of Cards” episodes to watch, more tweets to send.

But mostly, there is more good to be done. A United Way board meeting to attend. Voices for Children volunteers to recruit. A community park to check in on. Graffiti to be removed. The 38-year-old attorney never stops reaching out and giving back. And why should he? He learned early, and he learned from the best.

“My parents were pretty incredible, and I tell people I am involved now because I am so blessed,” said Passons, who went into foster care at 10 months old and was adopted by his first foster parents — Tom and Phyllis Passons — when he was 6. “I had parents who loved me, I got a good education and I have my health. I can give back, so I do.”

He was born in San Diego to a deaf mother who struggled with homelessness and mental-health issues. Passons was her fourth child, and the fourth to be taken away. But what could have been the beginning of a long, sad story for baby Omar was actually the start of a full and happy life.

In addition to Omar and their five biological children, the Passons took care of more than 100 foster children. Some of them were victims of abuse, others were medically fragile or severely injured. And all of them are a part of who Passons is now.

“I had black brothers and sisters, white brothers and sisters, I had brothers and sisters who were abused or neglected. I had a wide range of people who I called brother and sister,” Passons said over coffee at the Young Hickory cafe in North Park. “And because of that, what matters to me is being able to connect with people and connect with family.”

Passons grew up in Clairemont and Lemon Grove. The family moved to Benson, Ariz., when he was a teenager. (“It was interesting,” he says of being a black kid in that small town. “And not in a good way.”) Passons got his master’s degree in public health at the University of Arizona and his law degree from the George Mason University School of Law in Virginia. After a stint as a policy analyst with the Department of Health and Human Services in Washington, D.C., Passons returned to San Diego. He is now an attorney with Stutz Artiano Shinoff & Holtz, where he specializes in construction, land use and real estate cases.

And whether he was going to school in Arizona, or working in Washington or San Diego, Passons was doing volunteer work. He started an after-school tutoring program for a Boys & Girls Club in Arizona. He spent two years mentoring four young Somali brothers and three years working on the North Park Community Park project. Passons has volunteered for the Rachel’s Women’s Center and for the Voices for Children foster-child support group. And he continues to find time for community cleanup and graffiti-removal projects.

It helps that Passons can live on coffee, craft beer and no sleep. It really helps that he is a policy-geek who thrives on meeting people, tackling issues and helping public entities work for the public.

[Maura Larkins' comment: Mr. Passons' own statements indicate that he wants to help public entities work for the powerful than for the public as a whole.]

“You look at Omar and you can see how active he is in the community and how engaged he is. He doesn’t do anything halfway,” said Shaina Gross, vice president of impact strategies and mobilization for the United Way of San Diego County, where Passons is a board member. “I first saw his passion at a Voice of San Diego event at the Alpha Project tent for the homeless. He was there and listening and asking very thoughtful questions, and I thought, ‘This is the kind of person we need to help lead our organization.’”

Passons met his biological mother nine years ago. She drifts in and out of homelessness, but he stays in touch through email as best he can. His adoptive father died some time ago, but 81-year-old Phyllis Passons lives in La Mesa and often accompanies her son on his craft-beer excursions. An older brother, Tom Passons, works at Sea World and continues to be a best friend and role model. Passons has connected with a biological sister in Texas, and some of his many foster brothers and sisters are still part of his life.

And every day, Passons looks at the gifts of love and opportunity he was given and gets busy returning the favor.

“I have always believed that everyone has a talent or a small piece of themselves that can benefit someone else, and I definitely have a place in my heart for creating opportunities for young people,” Passons said. “Why not do something with the chances we have?”