California courts agency called dysfunctional
May 30, 2012
Associated Press
A blistering new report
quietly released over the
Memorial Day Weekend
called for the overhaul of
California's Administrative
Office of the Courts,
which it described as
dysfunctional, secretive
and top-heavy with
overpaid executives.
The report was prepared
by a committee of state
judges appointed last
year by Chief Justice Tani
Cantil-Sakauye to
investigate claims the
administrative arm of the
courts had grown too
large and costly amid
severe budget cuts. The
chief justice released the
nearly 300-page report
late Friday night. The
report chided the AOC for
claiming in February that
it employed "more than
750" when it concluded
that the AOC has grown
from 430 workers in 2002
to more than 1,100 last
year with hundreds
earning six figure salaries
amid a supposed hiring
freeze. AOC managers
conceded they got
around the hiring freeze
by employing temporary
and contract workers.
The report also said the
AOC appeared guilty of
violating its own work
rules by allowing some
workers to telecommute
from long distances,
including one attorney
who works from
Switzerland.
The report criticized the
agency for a lack of
transparency.
"The AOC's reporting of
staffing levels has been
misleading, leading to
mistrust of the AOC," the
report said.
"Disingenuously
suggesting that AOC
staffing levels have been
reduced in response to
branch-wide budget and
staffing cuts has led to
further mistrust and
cynicism."
The report calls for
staffing cuts to fewer than
700 employees and for
the agency's headquarter
to be moved from San
Francisco to Sacramento.
""The organization needs
to be right-sized," the
report concluded.
The release of the report
also comes amid Gov.
Jerry Brown's plan to cut
$544 million from the third
branch's budget.
In a conference call with
reporters on Tuesday, the
chief justice said the
report will be considered
next month by the Judicial
Council, an appointed
body that oversees the
AOC. She said the report
was a look at the past and
didn't consider the AOC's
current plans to grapple
with deep budget cuts.
She also defended the
public release of the
document, saying she
released it as soon as
she received it.
One of the agency's chief
critics, the Alliance of
California Judges,
applauded the findings.
"The nearly 300-page
report is an A-to-Z
indictment of an out of
control organization," the
group wrote in an email
Monday alerting media
and others to the report's
release. "It is an absolute
`must read' for everyone
concerned about the
functionality and
credibility of our judicial
branch." The group called
for even more staff cuts.
Friday, June 1, 2012
Tuesday, May 29, 2012
The Shame Of Lorain, Ohio - Nancy Smith and Joseph Allen Convicted Of Non-Existent Crimes
The Shame Of Lorain, Ohio - Nancy Smith And Joseph Allen Convicted Of Non-Existent Crimes
By Lona Manning
Justice Denied
SUMMER 2005
Margie Grover brought her 4- year-old daughter Nicole to a Lorain, Ohio hospital on May 7, 1993. She claimed that her daughter, who attended the Lorain Head Start had come home and said, “We didn’t go to school today.” Furthermore the anxious mother said that Nicole told her that the bus driver, Nancy Smith, had taken the children to see a man named “Joseph,” who tied her up, taped her eyes, and molested her with a stick. Grover said she found a piece of a branch in the girl’s clothing.
Officers attending at the hospital noted that most of the information was provided by the mother and the attending nurse, not by the little girl herself. The officers reported that Nicole was physically unharmed. The case was assigned to Detective Tom Cantu of Lorain’s Youth and Gang unit. Cantu, a 20+ year veteran of the Lorain PD and an ex-Marine, was named 1992’s Ohio “Policemen of the Year” by the Veterans of Foreign Wars.
When Cantu started the investigation, he had an accused person, her unknown accomplice by the name of “Joseph,” an unknown crime scene location, and a definite date. It was clear to Cantu that the incident couldn’t have happened as Nicole (or was it her mother?) described.
Smith’s bus log and the odometer readings confirmed that she had driven her usual route on May 7, and Nicole’s teacher had marked Nicole “present.” Sherry Hagerman, the aide on Smith’s bus that week, confirmed that nothing had happened. At the time of the incident Smith had gone to her second job, driving for the YMCA Meals-onWheels program. Her supervisor confirmed that Smith was a reliable driver and she had shown up for work as usual that day. Cantu spoke to Smith’s co-workers, neighbors, and friends. They scoffed at the idea that Smith was a child molester. She was a single mother with four teenage children and she had three part-time jobs that often kept her working for 12 hours a day.
Cantu interviewed Nicole on May 13, but most of the information came from her mother, who insisted that her daughter was telling her a lot of details at home.
In front of Cantu, however, Nicole hesitated, saying, “I forgot,” “I don’t remember that,” and “Can we go home now?” After repeated questioning she finally agreed that she had seen ““Joseph’s” pee pee.”
Cantu went to the Head Start school on May 25 and questioned 11 children, aged 3 to 5 who were on Smith’s bus route. His police report for that day notes, “The children were questioned if Nancy had ever touched them in a bad way, or in any way which would hurt, or upset them, and each one stated that she has never touched them. The children were asked if they knew anyone named “Joseph,” and they all indicated that they did not. All of the children stated that they liked Nancy and that she was nice.”
Nicole’s mother had been spreading alarm to other Head Start parents who then questioned their children. Had they heard of “Joseph”? Had they been taken to “Joseph’s” house? Cantu said that from the jumbled descriptions of “Joseph,” he couldn’t tell “if the guy was white, black, or a white guy with black spots, or a white guy with black spots” One child said “Joseph” was a white man who painted his head and hands black. Several others said “Joseph” had blue eyes.
Cantu suspected that parents heavily influenced the children’s testimony. “One day they tell you one story, then they go home, and all of a sudden they have the same story.” Cantu recalled, “I took the kids to different houses where they said this thing happened and none of it panned out.
The kids gave descriptions of the interior of the house and different pictures that might have been in the house, [but] any house we went into, nothing matched anything the children stated.” He canvassed the neighborhood and asked if anyone had seen a bright yellow school bus parked there all afternoon. No one had.
Less than two weeks into the investigation the mayor summoned Cantu to his office and when he arrived Grover was already there complaining that no arrest had been made. Cantu got “into a tiff” with her, but he recommended proper police procedure. “I even told the mayor, ‘just because somebody accuses, they say Nancy Smith did it, I have to prove she did it, I can’t arrest her on your say-so.’” Cantu concluded, “There is no proof that a male suspect named “Joseph” exists at the present.” The Head Start semester ended on May 27 with a picnic in the park.
The day afterwards, Grover, who had her identity concealed, appeared on a local newscast with the dramatic claim that a molester was stalking the Head Start kids — and nobody was doing anything about it. She said she wanted, “someone to do something about this case and get the ball rolling.”
She named a suspect, a white man her daughter had pointed out when he was cutting the grass outside his house. (He was soon cleared.)
After the accusations became public, Cantu took Smith for a lie detector test , which showed “she didn’t do that crime any more than me or the guy that gave the test.” Cantu concluded that there was no case against Smith, “There is no proof that a male suspect named “Joseph” exists.... all of the victims in the case have been interviewed with much inconsistency and lack of good evidence.” Shortly after Cantu made his recommendation that the investigation against Smith be concluded, he was promoted to sergeant and transferred out of the Youth/Gang unit.
The Lorain PD then assigned five officers to a special Head Start task force. The questioning of the children began again. One of those police reports states, “Amy was asked, did Joseph make you touch him? Amy stated, ‘No.’”
When Child Protective Services interviewed Nicole in May, she denied that anyone had touched her. After several months and more interviews, she agreed with detective Eladio Andujar that Nancy and “Joseph” had molested her.
Preschooler Johnny Givens got involved in the case at the end of May. His mother had seen the news reports and she remembered that her son had complained of a sore bottom the previous winter. The police report states, “[Johnny] was questioned if Nancy ever did anything to him, or if she had ever touched him, or ever touched his penis... [Johnny] stated that she had never done anything to him, and had never touched him in any way...”
Two weeks after Grover appeared on the local news, 4-year-old Jason Andrews’s mother reported that her son had told her he’d been molested right on the bus by someone named Alan. The police report notes: “He also stated that Alan looked like...Story continued HERE.)
By Lona Manning
Justice Denied
SUMMER 2005
Margie Grover brought her 4- year-old daughter Nicole to a Lorain, Ohio hospital on May 7, 1993. She claimed that her daughter, who attended the Lorain Head Start had come home and said, “We didn’t go to school today.” Furthermore the anxious mother said that Nicole told her that the bus driver, Nancy Smith, had taken the children to see a man named “Joseph,” who tied her up, taped her eyes, and molested her with a stick. Grover said she found a piece of a branch in the girl’s clothing.
Officers attending at the hospital noted that most of the information was provided by the mother and the attending nurse, not by the little girl herself. The officers reported that Nicole was physically unharmed. The case was assigned to Detective Tom Cantu of Lorain’s Youth and Gang unit. Cantu, a 20+ year veteran of the Lorain PD and an ex-Marine, was named 1992’s Ohio “Policemen of the Year” by the Veterans of Foreign Wars.
When Cantu started the investigation, he had an accused person, her unknown accomplice by the name of “Joseph,” an unknown crime scene location, and a definite date. It was clear to Cantu that the incident couldn’t have happened as Nicole (or was it her mother?) described.
Smith’s bus log and the odometer readings confirmed that she had driven her usual route on May 7, and Nicole’s teacher had marked Nicole “present.” Sherry Hagerman, the aide on Smith’s bus that week, confirmed that nothing had happened. At the time of the incident Smith had gone to her second job, driving for the YMCA Meals-onWheels program. Her supervisor confirmed that Smith was a reliable driver and she had shown up for work as usual that day. Cantu spoke to Smith’s co-workers, neighbors, and friends. They scoffed at the idea that Smith was a child molester. She was a single mother with four teenage children and she had three part-time jobs that often kept her working for 12 hours a day.
Cantu interviewed Nicole on May 13, but most of the information came from her mother, who insisted that her daughter was telling her a lot of details at home.
In front of Cantu, however, Nicole hesitated, saying, “I forgot,” “I don’t remember that,” and “Can we go home now?” After repeated questioning she finally agreed that she had seen ““Joseph’s” pee pee.”
Cantu went to the Head Start school on May 25 and questioned 11 children, aged 3 to 5 who were on Smith’s bus route. His police report for that day notes, “The children were questioned if Nancy had ever touched them in a bad way, or in any way which would hurt, or upset them, and each one stated that she has never touched them. The children were asked if they knew anyone named “Joseph,” and they all indicated that they did not. All of the children stated that they liked Nancy and that she was nice.”
Nicole’s mother had been spreading alarm to other Head Start parents who then questioned their children. Had they heard of “Joseph”? Had they been taken to “Joseph’s” house? Cantu said that from the jumbled descriptions of “Joseph,” he couldn’t tell “if the guy was white, black, or a white guy with black spots, or a white guy with black spots” One child said “Joseph” was a white man who painted his head and hands black. Several others said “Joseph” had blue eyes.
Cantu suspected that parents heavily influenced the children’s testimony. “One day they tell you one story, then they go home, and all of a sudden they have the same story.” Cantu recalled, “I took the kids to different houses where they said this thing happened and none of it panned out.
The kids gave descriptions of the interior of the house and different pictures that might have been in the house, [but] any house we went into, nothing matched anything the children stated.” He canvassed the neighborhood and asked if anyone had seen a bright yellow school bus parked there all afternoon. No one had.
Less than two weeks into the investigation the mayor summoned Cantu to his office and when he arrived Grover was already there complaining that no arrest had been made. Cantu got “into a tiff” with her, but he recommended proper police procedure. “I even told the mayor, ‘just because somebody accuses, they say Nancy Smith did it, I have to prove she did it, I can’t arrest her on your say-so.’” Cantu concluded, “There is no proof that a male suspect named “Joseph” exists at the present.” The Head Start semester ended on May 27 with a picnic in the park.
The day afterwards, Grover, who had her identity concealed, appeared on a local newscast with the dramatic claim that a molester was stalking the Head Start kids — and nobody was doing anything about it. She said she wanted, “someone to do something about this case and get the ball rolling.”
She named a suspect, a white man her daughter had pointed out when he was cutting the grass outside his house. (He was soon cleared.)
After the accusations became public, Cantu took Smith for a lie detector test , which showed “she didn’t do that crime any more than me or the guy that gave the test.” Cantu concluded that there was no case against Smith, “There is no proof that a male suspect named “Joseph” exists.... all of the victims in the case have been interviewed with much inconsistency and lack of good evidence.” Shortly after Cantu made his recommendation that the investigation against Smith be concluded, he was promoted to sergeant and transferred out of the Youth/Gang unit.
The Lorain PD then assigned five officers to a special Head Start task force. The questioning of the children began again. One of those police reports states, “Amy was asked, did Joseph make you touch him? Amy stated, ‘No.’”
When Child Protective Services interviewed Nicole in May, she denied that anyone had touched her. After several months and more interviews, she agreed with detective Eladio Andujar that Nancy and “Joseph” had molested her.
Preschooler Johnny Givens got involved in the case at the end of May. His mother had seen the news reports and she remembered that her son had complained of a sore bottom the previous winter. The police report states, “[Johnny] was questioned if Nancy ever did anything to him, or if she had ever touched him, or ever touched his penis... [Johnny] stated that she had never done anything to him, and had never touched him in any way...”
Two weeks after Grover appeared on the local news, 4-year-old Jason Andrews’s mother reported that her son had told her he’d been molested right on the bus by someone named Alan. The police report notes: “He also stated that Alan looked like...Story continued HERE.)
Thursday, May 24, 2012
Supreme Court says double jeopardy does not protect against murder retrial
Supreme Court says double jeopardy does not protect against murder retrial
By Robert Barnes
May 24, 2012
Washington Post
Arkansas may retry a man for murder even though jurors in his first trial were unanimous that he was not guilty, the Supreme Court ruled Thursday.
Alex Blueford, who is accused of killing his girlfriend’s 1-year-old son, is not protected by the Constitution’s Double Jeopardy Clause, the court ruled in a 6 to 3 decision.
Because the judge dismissed the jury when it was unable to reach agreement on lesser charges, Blueford was not officially cleared of any of the charges, the majority said, and thus may be retried.
“The jury in this case did not convict Blueford of any offense, but it did not acquit him of any either,” Chief Justice John G. Roberts Jr. wrote.
The decision brought a sharp dissent from Justice Sonia Sotomayor, who was joined by Justices Ruth Bader Ginsburg and Elena Kagan.
“Blueford’s jury had the option to convict him of capital and first-degree murder, but expressly declined to do so,” Sotomayor wrote. “That ought to be the end of the matter.”
The Double Jeopardy Clause is found in the Constitution’s Fifth Amendment, and commands that no person shall be “twice put in jeopardy of life or limb” for the same offense.
Blueford was tried for the death of Matthew McFadden Jr., who died in 2007 from head injuries. Arkansas prosecutors said Blueford intentionally caused the boy’s death, while Blueford maintained that he had accidentally knocked the child to the ground.
Blueford was charged with capital murder, although the state waived the death penalty. At trial, the judge instructed jurors that if they had reasonable doubt about whether he was guilty of capital murder, they should next consider the charge of first-degree murder. If they found reasonable doubt about that, they should then consider manslaughter, they were told, and after that, negligent homicide.
The jurors’ final option was to acquit Blueford of all charges.
After a few hours of deliberations, the jury reported that it might not be able to reach a decision. The forewoman told the judge that the jurors were unanimous against capital and first-degree murder, had split 9 to 3 against manslaughter and did not vote on negligent homicide.
The judge sent the jurors back for more deliberations, but half an hour later the forewoman reported no verdict. The court declared a mistrial.
All agree that Blueford can be retried on charges of manslaughter and negligent homicide, but Blueford claimed the murder charges were off the table because a jury had rejected them.
The Supreme Court majority disagreed...
By Robert Barnes
May 24, 2012
Washington Post
Arkansas may retry a man for murder even though jurors in his first trial were unanimous that he was not guilty, the Supreme Court ruled Thursday.
Alex Blueford, who is accused of killing his girlfriend’s 1-year-old son, is not protected by the Constitution’s Double Jeopardy Clause, the court ruled in a 6 to 3 decision.
Because the judge dismissed the jury when it was unable to reach agreement on lesser charges, Blueford was not officially cleared of any of the charges, the majority said, and thus may be retried.
“The jury in this case did not convict Blueford of any offense, but it did not acquit him of any either,” Chief Justice John G. Roberts Jr. wrote.
The decision brought a sharp dissent from Justice Sonia Sotomayor, who was joined by Justices Ruth Bader Ginsburg and Elena Kagan.
“Blueford’s jury had the option to convict him of capital and first-degree murder, but expressly declined to do so,” Sotomayor wrote. “That ought to be the end of the matter.”
The Double Jeopardy Clause is found in the Constitution’s Fifth Amendment, and commands that no person shall be “twice put in jeopardy of life or limb” for the same offense.
Blueford was tried for the death of Matthew McFadden Jr., who died in 2007 from head injuries. Arkansas prosecutors said Blueford intentionally caused the boy’s death, while Blueford maintained that he had accidentally knocked the child to the ground.
Blueford was charged with capital murder, although the state waived the death penalty. At trial, the judge instructed jurors that if they had reasonable doubt about whether he was guilty of capital murder, they should next consider the charge of first-degree murder. If they found reasonable doubt about that, they should then consider manslaughter, they were told, and after that, negligent homicide.
The jurors’ final option was to acquit Blueford of all charges.
After a few hours of deliberations, the jury reported that it might not be able to reach a decision. The forewoman told the judge that the jurors were unanimous against capital and first-degree murder, had split 9 to 3 against manslaughter and did not vote on negligent homicide.
The judge sent the jurors back for more deliberations, but half an hour later the forewoman reported no verdict. The court declared a mistrial.
All agree that Blueford can be retried on charges of manslaughter and negligent homicide, but Blueford claimed the murder charges were off the table because a jury had rejected them.
The Supreme Court majority disagreed...
Prosecutors in botched case against Sen. Stevens suspended
Prosecutors in botched case against Sen. Stevens suspended
By Kevin Johnson
USA TODAY
May 24, 2012
Two Justice Department trial lawyers involved in the botched corruption prosecution of Alaska Sen. Ted Stevens have been suspended without pay for "reckless professional misconduct'' in failing to disclose critical information to the senator's defense team.
Joseph Bottini, an assistant U.S. attorney in Alaska, was suspended for 40 days and James Goeke, an assistant U.S. attorney in Washington state, was suspended for 15 days, according to a summary of the findings released today by the Justice Department Office of Professional Responsibility.
The full 672-page report of the Justice Department's internal investigation was submitted to the Senate and House Judiciary committees.
The findings come two months after a special investigator appointed by federal Judge Emmet Sullivan found that the Stevens prosecution was "permeated by the systematic concealment'' of evidence favorable to the defense.
A jury convicted Stevens, a Republican, in 2008 on seven counts of lying on Senate financial disclosure statements. Days later, Stevens lost his re-election bid. In 2009, Sullivan threw out the conviction. Stevens died in a plane crash in August 2010.
By Kevin Johnson
USA TODAY
May 24, 2012
Two Justice Department trial lawyers involved in the botched corruption prosecution of Alaska Sen. Ted Stevens have been suspended without pay for "reckless professional misconduct'' in failing to disclose critical information to the senator's defense team.
Joseph Bottini, an assistant U.S. attorney in Alaska, was suspended for 40 days and James Goeke, an assistant U.S. attorney in Washington state, was suspended for 15 days, according to a summary of the findings released today by the Justice Department Office of Professional Responsibility.
The full 672-page report of the Justice Department's internal investigation was submitted to the Senate and House Judiciary committees.
The findings come two months after a special investigator appointed by federal Judge Emmet Sullivan found that the Stevens prosecution was "permeated by the systematic concealment'' of evidence favorable to the defense.
A jury convicted Stevens, a Republican, in 2008 on seven counts of lying on Senate financial disclosure statements. Days later, Stevens lost his re-election bid. In 2009, Sullivan threw out the conviction. Stevens died in a plane crash in August 2010.
Friday, May 18, 2012
Court asked to discipline ex-prosecutor overseeing bailout
Court asked to discipline ex-prosecutor overseeing bailout
By Brad Heath
USA TODAY
May 18, 2012
Maryland regulators are asking the state's top court to discipline a former federal prosecutor — now helping to oversee the government's $700 billion bailout — for a secret arrangement targeting a prominent banker who had not broken the law.
Their request comes nearly five years after Justice Department officials were alerted that the lawyer, John Sellers, had reached a secret agreement with American Express' international banking arm barring the company from rehiring its former top executive. The department later withdrew that agreement and said in a rare public letter that it had no evidence that the banker, Sergio Masvidal , had done anything illegal.
The case is one of only a handful over the past decade in which state authorities in charge of regulating the legal profession have sought to discipline a federal prosecutor. It comes as lawmakers have expressed concern about the Justice Department's handling of misconduct by its attorneys. In April, a Senate committee said it "questions the judgment of the Department" in assigning some of the prosecutors responsible for the tainted corruption case against former senator Ted Stevens to other high-profile investigations.
An internal Justice Department probe concluded in October 2010 that Sellers had committed "reckless" misconduct by not telling his supervisors or a federal court judge about the side agreement. Sellers left the agency before it could take any action against him ; he landed a new job as an attorney for the special inspector general overseeing the federal bailout, state and federal records show .
A USA TODAY investigation in 2010 found that federal prosecutors rarely risk losing their jobs for misconduct, and that actions by state regulators are uncommon.
By Brad Heath
USA TODAY
May 18, 2012
Maryland regulators are asking the state's top court to discipline a former federal prosecutor — now helping to oversee the government's $700 billion bailout — for a secret arrangement targeting a prominent banker who had not broken the law.
Their request comes nearly five years after Justice Department officials were alerted that the lawyer, John Sellers, had reached a secret agreement with American Express' international banking arm barring the company from rehiring its former top executive. The department later withdrew that agreement and said in a rare public letter that it had no evidence that the banker, Sergio Masvidal , had done anything illegal.
The case is one of only a handful over the past decade in which state authorities in charge of regulating the legal profession have sought to discipline a federal prosecutor. It comes as lawmakers have expressed concern about the Justice Department's handling of misconduct by its attorneys. In April, a Senate committee said it "questions the judgment of the Department" in assigning some of the prosecutors responsible for the tainted corruption case against former senator Ted Stevens to other high-profile investigations.
An internal Justice Department probe concluded in October 2010 that Sellers had committed "reckless" misconduct by not telling his supervisors or a federal court judge about the side agreement. Sellers left the agency before it could take any action against him ; he landed a new job as an attorney for the special inspector general overseeing the federal bailout, state and federal records show .
A USA TODAY investigation in 2010 found that federal prosecutors rarely risk losing their jobs for misconduct, and that actions by state regulators are uncommon.
Monday, April 30, 2012
Probe of Dewey & LeBoeuf Focuses Largely on Law Firm's Chairman
Woes at Law Firm Deepen
Probe of Dewey & LeBoeuf Focuses Largely on Law Firm's Chairman, According to Internal Memo
BY JENNIFER SMITH, ASHBY JONES AND STEVE EDER
Wall Street Journal
April 27, 2012
One of New York's largest law firms, already engulfed in a financial crisis that threatens its survival, is being investigated by the Manhattan district attorney's office.
The firm, Dewey & LeBoeuf LLP, has been wrestling with the effects of big guaranteed pay packages that were handed out to top lawyers even as corporate clients were pushing back on legal fees. Those two factors, along with heavy debt and a wave of departures by partners, are dragging down Dewey, formed four years ago by merging two storied law firms.
The district attorney's investigation is focusing on former Chairman Steven Davis...
Thursday, April 12, 2012
System Must Weed Out Unethical Lawyers Who Damage Profession's Reputation
Attorney Discipline: System Must Weed Out Unethical Lawyers Who Damage Profession's Reputation
Los Angeles Daily Journal
December 16, 2002
By James C. Turner and Suzanne M. Mishkin
This fall, HALT - An Organization of Americans for Legal Reform released its 2002 Lawyer Discipline Report Card, the first comprehensive evaluation of the nation's attorney discipline system in ten years. The Report Card points to persistent problems that have gone largely unremedied for over a quarter of a century.
In 1970, a blue ribbon panel led by U.S. Supreme Court Justice Tom Clark conducted a groundbreaking review of the attorney discipline system, and found a "scandalous situation" that required "the immediate attention of the profession."
The Clark Committee itemized 36 defects in the disciplinary system, in particular, criticizing the practices of most disciplinary agencies, which "deliberately discourage any publication of information concerning their activities, believing that the public image of the profession is damaged by a disclosure that attorney misconduct exists."
In addition, this review found that a panel of lawyers, rather than judges or lay persons, controlled the disciplinary system, creating an institutional bias that grossly undermines the effectiveness of the entire disciplinary system.
Twenty-two years later, an American Bar Association commission, chaired by Dean Robert McKay of the New York University Law School, found that the public has a "growing mistrust of secret, self-regulated lawyer discipline."
Like the Clark Committee before it, the McKay Commission concluded that the practice of allowing bar officials to control state disciplinary systems creates the appearance of a gross conflict of interest, "regardless of the actual fairness and impartiality of the system."
Summing up the situation in 1992, the Commission criticized the entire country's lawyer discipline system as "too slow, too secret, too soft and too self-regulated."
While there has been some modest progress since these scathing indictments, sadly it has not been nearly enough to fix a badly broken system.
Just last month, Stanford University Legal Ethics Professor Deborah L. Rhode stated, "Bar disciplinary procedures are anything but user-friendly to the consumer, and most are more responsive to the profession's interests than the public's."
Similarly, judges, legal scholars, practicing attorneys and bar officials, who convened the National Conference on Professionalism at the University of South Carolina School of Law, broadly agreed that the current system of lawyer discipline has lost the public's confidence, and urged the profession to lead the way in demanding meaningful reforms.
HALT's Report Card is our effort to bring the deficiencies of the attorney discipline system to the attention of the profession and the public. The Report Card assesses the performance of disciplinary systems in all 50 states and the District of Columbia on six key factors: (1) adequacy of discipline imposed; (2) publicity and responsiveness; (3) openness of the process; (4) fairness of disciplinary procedures; (5) public participation; and (6) promptness.
The results expose an appalling pattern of toothless sanctions, unnecessary secrecy, biased procedures and endless delays.
More than 114,000 complaints were filed against lawyers in 2000, the most recent year for which the American Bar Association provides data. In that same year, the rate of formal discipline was less than 3.5 percent, and the rate of disbarment was less than one percent.
In California, 93 percent of investigated cases led to absolutely no disciplinary action. And this is not surprising given that California bar rules provide that a lawyer will only be disciplined if misconduct is proven by "clear and convincing evidence," a far more demanding standard of proof than the "preponderance of the evidence" test that applies in other civil proceedings.
In state after state, we found that most complaints are not even investigated or are dismissed on technicalities, while only a handful lead to more than a slap on the wrist in the form of a private admonition or a closed-door reprimand. With this tiny trickle of discipline, is it any wonder that a recent Columbia Law School survey found less than one-third of Americans think lawyers are even "somewhat" honest?
In most states, attorney discipline proceedings are secret, non-public hearings where a panel of lawyers sits as both judge and jury. In many states, even the person who filed the complaint does not have a right to attend.
In California, there is not even token layperson representation in disciplinary decisions - instead, only lawyers decide if and when to impose sanctions upon their colleagues.
In every jurisdiction except Oregon and Arizona, disciplinary bodies refuse to release an attorney's full disciplinary history. Officials in California will only inform consumers of whether an attorney has been publicly disciplined; records of all complaints, formal charges and informal discipline are kept under seal.
Consumers in many jurisdictions are forced into silence by gag rules that threaten fines or jail for talking about the complaint or its outcome. Even those without gag rules frequently try to restrain speech, asking complainants to keep their grievances confidential.
Justice delayed may be justice denied, but it is par for the course in attorney discipline cases. Even the state that earned our highest grade (Massachusetts with a B minus) failed to act promptly on complaints - taking an average of 681 days to issue formal charges and well over two years to impose discipline.
In Washington State, it took one victim thirteen years to get an incompetent lawyer suspended. Many states, like California, do not even keep a record of how promptly they respond to grievances.
These are national problems; of the fifty-one jurisdictions we evaluated, thirty-nine earned a C- or lower; and twenty-one of these received Ds or lower (Pennsylvania and North Carolina flunked outright). California earned a mediocre C.
Part of the problem is that lawyer discipline bodies are asked to perform conflicting missions.
For example, the mission statement for the District of Columbia disciplinary body requires it to fulfill "a dual function: to protect the public and the courts from unethical conduct by members of the D.C. Bar and to protect members of the D.C. Bar" (emphasis supplied).
A lawyer discipline system serving two conflicting masters is bound to prove ineffective.
To correct the nationwide pattern of laxity, secrecy, bias and delay that characterize this broken system, we believe four fundamental reforms are needed.
* Lawyer discipline cases should be heard by publicly controlled disciplinary panels where non-lawyers have at least a majority voice. Independent medical boards in many states offer a superior model for ensuring accountability. These medical boards, which are appointed by governors and state legislatures, rely on physicians to help them understand technical issues, but the doctors stay out of the decision-making process. Lawyers should, too.
* The discipline system must come out into the open. Private reprimands should be replaced with meaningful public discipline. Hearings should be open to the public. And complaints against lawyers and sanctions should be a matter of public record, available to every citizen.
* Disciplinary policies should more closely approximate the rules governing the civil justice system. Gag rules should be abolished. If the preponderance of the evidence demonstrates that an attorney has violated the rules of professional conduct, the attorney should be sanctioned.
* The glacial pace of attorney discipline must come to an end. Imposing real deadlines - requiring a preliminary disciplinary hearing within ninety days, for example - would be a giant step toward jettisoning bureaucratic red tape and creating a system that actually brings justice to victims of misconduct.
By adopting these simple reforms, we can replace a system that is an abject failure with one that actually protects consumers and begins to restore public confidence in the legal profession.
After thirty years of ignored calls for reform, responsible lawyers who have a real commitment to professional responsibility need to mobilize and demand action to fix the attorney discipline mess.
All who practice law have a shared interest in creating a system that investigates promptly, deliberates openly, and weeds-out unethical or incompetent attorneys who damage the profession's reputation.
By addressing long-recognized failures in the current disciplinary system, we have an opportunity to create a structure that engenders consumer trust and respect, rather than alienation and resentment. After three decades of marginal reform, can we do less?
-------------
* James C. Turner is Executive Director and Suzanne M. Mishkin is Associate Counsel of HALT, Inc. - An Organization of Americans for Legal Reform.
Los Angeles Daily Journal
December 16, 2002
By James C. Turner and Suzanne M. Mishkin
This fall, HALT - An Organization of Americans for Legal Reform released its 2002 Lawyer Discipline Report Card, the first comprehensive evaluation of the nation's attorney discipline system in ten years. The Report Card points to persistent problems that have gone largely unremedied for over a quarter of a century.
In 1970, a blue ribbon panel led by U.S. Supreme Court Justice Tom Clark conducted a groundbreaking review of the attorney discipline system, and found a "scandalous situation" that required "the immediate attention of the profession."
The Clark Committee itemized 36 defects in the disciplinary system, in particular, criticizing the practices of most disciplinary agencies, which "deliberately discourage any publication of information concerning their activities, believing that the public image of the profession is damaged by a disclosure that attorney misconduct exists."
In addition, this review found that a panel of lawyers, rather than judges or lay persons, controlled the disciplinary system, creating an institutional bias that grossly undermines the effectiveness of the entire disciplinary system.
Twenty-two years later, an American Bar Association commission, chaired by Dean Robert McKay of the New York University Law School, found that the public has a "growing mistrust of secret, self-regulated lawyer discipline."
Like the Clark Committee before it, the McKay Commission concluded that the practice of allowing bar officials to control state disciplinary systems creates the appearance of a gross conflict of interest, "regardless of the actual fairness and impartiality of the system."
Summing up the situation in 1992, the Commission criticized the entire country's lawyer discipline system as "too slow, too secret, too soft and too self-regulated."
While there has been some modest progress since these scathing indictments, sadly it has not been nearly enough to fix a badly broken system.
Just last month, Stanford University Legal Ethics Professor Deborah L. Rhode stated, "Bar disciplinary procedures are anything but user-friendly to the consumer, and most are more responsive to the profession's interests than the public's."
Similarly, judges, legal scholars, practicing attorneys and bar officials, who convened the National Conference on Professionalism at the University of South Carolina School of Law, broadly agreed that the current system of lawyer discipline has lost the public's confidence, and urged the profession to lead the way in demanding meaningful reforms.
HALT's Report Card is our effort to bring the deficiencies of the attorney discipline system to the attention of the profession and the public. The Report Card assesses the performance of disciplinary systems in all 50 states and the District of Columbia on six key factors: (1) adequacy of discipline imposed; (2) publicity and responsiveness; (3) openness of the process; (4) fairness of disciplinary procedures; (5) public participation; and (6) promptness.
The results expose an appalling pattern of toothless sanctions, unnecessary secrecy, biased procedures and endless delays.
More than 114,000 complaints were filed against lawyers in 2000, the most recent year for which the American Bar Association provides data. In that same year, the rate of formal discipline was less than 3.5 percent, and the rate of disbarment was less than one percent.
In California, 93 percent of investigated cases led to absolutely no disciplinary action. And this is not surprising given that California bar rules provide that a lawyer will only be disciplined if misconduct is proven by "clear and convincing evidence," a far more demanding standard of proof than the "preponderance of the evidence" test that applies in other civil proceedings.
In state after state, we found that most complaints are not even investigated or are dismissed on technicalities, while only a handful lead to more than a slap on the wrist in the form of a private admonition or a closed-door reprimand. With this tiny trickle of discipline, is it any wonder that a recent Columbia Law School survey found less than one-third of Americans think lawyers are even "somewhat" honest?
In most states, attorney discipline proceedings are secret, non-public hearings where a panel of lawyers sits as both judge and jury. In many states, even the person who filed the complaint does not have a right to attend.
In California, there is not even token layperson representation in disciplinary decisions - instead, only lawyers decide if and when to impose sanctions upon their colleagues.
In every jurisdiction except Oregon and Arizona, disciplinary bodies refuse to release an attorney's full disciplinary history. Officials in California will only inform consumers of whether an attorney has been publicly disciplined; records of all complaints, formal charges and informal discipline are kept under seal.
Consumers in many jurisdictions are forced into silence by gag rules that threaten fines or jail for talking about the complaint or its outcome. Even those without gag rules frequently try to restrain speech, asking complainants to keep their grievances confidential.
Justice delayed may be justice denied, but it is par for the course in attorney discipline cases. Even the state that earned our highest grade (Massachusetts with a B minus) failed to act promptly on complaints - taking an average of 681 days to issue formal charges and well over two years to impose discipline.
In Washington State, it took one victim thirteen years to get an incompetent lawyer suspended. Many states, like California, do not even keep a record of how promptly they respond to grievances.
These are national problems; of the fifty-one jurisdictions we evaluated, thirty-nine earned a C- or lower; and twenty-one of these received Ds or lower (Pennsylvania and North Carolina flunked outright). California earned a mediocre C.
Part of the problem is that lawyer discipline bodies are asked to perform conflicting missions.
For example, the mission statement for the District of Columbia disciplinary body requires it to fulfill "a dual function: to protect the public and the courts from unethical conduct by members of the D.C. Bar and to protect members of the D.C. Bar" (emphasis supplied).
A lawyer discipline system serving two conflicting masters is bound to prove ineffective.
To correct the nationwide pattern of laxity, secrecy, bias and delay that characterize this broken system, we believe four fundamental reforms are needed.
* Lawyer discipline cases should be heard by publicly controlled disciplinary panels where non-lawyers have at least a majority voice. Independent medical boards in many states offer a superior model for ensuring accountability. These medical boards, which are appointed by governors and state legislatures, rely on physicians to help them understand technical issues, but the doctors stay out of the decision-making process. Lawyers should, too.
* The discipline system must come out into the open. Private reprimands should be replaced with meaningful public discipline. Hearings should be open to the public. And complaints against lawyers and sanctions should be a matter of public record, available to every citizen.
* Disciplinary policies should more closely approximate the rules governing the civil justice system. Gag rules should be abolished. If the preponderance of the evidence demonstrates that an attorney has violated the rules of professional conduct, the attorney should be sanctioned.
* The glacial pace of attorney discipline must come to an end. Imposing real deadlines - requiring a preliminary disciplinary hearing within ninety days, for example - would be a giant step toward jettisoning bureaucratic red tape and creating a system that actually brings justice to victims of misconduct.
By adopting these simple reforms, we can replace a system that is an abject failure with one that actually protects consumers and begins to restore public confidence in the legal profession.
After thirty years of ignored calls for reform, responsible lawyers who have a real commitment to professional responsibility need to mobilize and demand action to fix the attorney discipline mess.
All who practice law have a shared interest in creating a system that investigates promptly, deliberates openly, and weeds-out unethical or incompetent attorneys who damage the profession's reputation.
By addressing long-recognized failures in the current disciplinary system, we have an opportunity to create a structure that engenders consumer trust and respect, rather than alienation and resentment. After three decades of marginal reform, can we do less?
-------------
* James C. Turner is Executive Director and Suzanne M. Mishkin is Associate Counsel of HALT, Inc. - An Organization of Americans for Legal Reform.
Thursday, April 5, 2012
Tri-City Hospital refuses to release records in elder abuse case
Tri-City also tried to keep records out of the hands of the San Diego Union-Tribune.
A bizarre cover-up seems to be proceeding in an elder abuse case in North County Superior Court in which a dying man who was taking approximately 20 medications signed away his property to one of his nine children. Another of his children is suing to have the property returned to the man's surviving wife.
Tri-City Hospital apparently wants to cover up its actions in the case, in which Tri-City Hospital and the daughter who arranged the transfer of property concealed from other siblings the fact that the father had terminal cancer.
Tri-City offers three objection to the subpoena for the records. the first and second reasons for not providing the records are standard.
The third reason however reads:
"Third, the subpoena is unduly burdensome or oppressive, since deponent is not in possession of the records sought..."
Tri-City is claiming that it does not have the patient's medical records!
The daughter who obtained the property is represented by attorney Roland Achtel.
See entire pleading filed by Nicole Wells on behalf of Tri-City Medical Center.
Friday, February 24, 2012
Is the ACLU actively supporting the suppression of free speech in schools?
See all posts on the San Diego ACLU.
Why is the San Diego ACLU trying to silence free speech for teachers at the same time that it is protecting free speech for students? I understand why school attorneys want to keep the public unaware of what goes on behind closed doors in our schools, but why is ACLU attorney David Loy so interested in helping them?
I have long wondered if the ACLU was doing California Teachers Association little favors by refusing to take free speech cases for teachers. The recently-retired CTA head counsel Beverly Tucker had previously worked for the ACLU.
I got my answer on April 28, 2010 (see email below from David Loy). Yes, I learned, the ACLU definitely tries to silence teachers who don't speak through the union.
I attended the Annual Membership meeting of the San Diego ACLU today, and listened to ACLU attorney David Loy boast about how the ACLU had protected student free speech.
I asked him, "What about free speech for teachers?"
Mr. Loy responded with only one case, Johnson v. Poway, a case in which the ACLU supported a teacher who draped huge banners with religious admonitions across his classroom. The ACLU's victory in the district court was overturned by the U.S. Ninth Circuit Court of Appeal:
"We thus reverse and remand with instructions that the district court vacate its grant of injunctive and declaratory relief, as well as its award of damages, and enter summary judgment in favor of Poway and its officials on all claims. Johnson shall bear all costs. Fed. R. App. P. 39(a)(3)."
Daniel R. Shinoff, Jack M. Sleeth, Jr. (argued), Paul V. Carelli, IV, Stutz Artiano Shinoff & Holtz, APC, San Diego, California, for defendants-appellants Poway Unified School District, et al
David Blair-Loy, ACLU Foundation of San Diego and Imperial Counties, San Diego, California, for Amicus Curiae American Civil Liberties Union of San Diego and Imperial Counties in Support of plaintiff (Johnson)
Apparently California Teachers Association didn't take part in this case.
Neither David Loy nor Kevin Keenan could think of another case in which the ACLU had defended freedom of speech for teachers, but they noted that the ACLU frequently defends the free speech rights of law enforcement officers. Is this perhaps because the police unions don't donate to the ACLU like the teacher unions do?
Even Lori Shellenberger, the San Diego ACLU's "civic engagement" attorney, is vehemently uninterested in free speech for teachers. She spoke at the Annual Membership meeting about the voting rights workshops she held for parents throughout the school district, and giving parents the chance to speak about what they wanted from schools. I told Ms. Shellenberger, "What good are voting rights when parents don't know what is going on in schools? Democracy requires an informed electorate. You want to expand parent participation, but you keep parents ignorant by silencing teachers who know what's going on in schools." Ms. Shellenberger said she wasn't interested in free speech. Her associate Vince Hall specifically told me he wasn't interested in my letter to the ACLU board.
It would seem to me that Shellenberger and Hall are unlikely to improve schools unless they're willing to work toward transparency in schools, to reveal the secret life of schools. They are basically asking parents to stand up and address the powers behind the curtain of secrecy in schools in the manner in which Dorothy, the Tin Man and friends addressed the Wizard of Oz. The ACLU wants to make sure the curtain is not pulled back revealing a charlatan pulling strings.
Interestingly, Mr. Keenan is convinced that the U.S. Supreme Court will overrule the Ninth Circuit. "We always win," said Kevin Keenan. If the ACLU wins in the U.S. Supreme Court, it will not be with the aid of the civil libertarians on the court, I believe. It will be with the aid of those who want the U.S. to be a Christian nation. Mr. Keenan's goal is apparently to win, not to stick to the ACLU's principles. He spends years trying to get the cross taken down from Mount Soledad in San Diego, only to turn around and try to get it erected (figuratively speaking) in a classroom in Poway.
Not so. The ACLU tried to silence my website discussions about Stutz law firm, which represented the school district in this case. The Court of Appeal didn't go along with the ACLU's position, ruling instead that an injunction completely silencing my discussion of Stutz Artiano Shinoff & Holtz was "exceedingly unconstitutional."
Mr. Keenan bemoaned the fact that the San Diego Zoo has more members that the ACLU does, even when counting all ACLU members in the entire country. The reason might be that the ACLU compromised its principles a bit too often, pushing out ordinary people who demand equal treatment with the good old boys and girls in the ACLU power structure. In fact, Mr. Keenan said to me, "I'm surprised you're still a member." I'm not the one who has a problem with equal treatment for everyone, Mr. Keenan. But I'm curious, how many ordinary people has the ACLU intimidated into giving up their civil rights? They tried to get me to take down my website, but I didn't think much of their exhortations.
Mr. Loy tried to get me to obey an obviously unconstitutional injunction:
from dblairloy@aclusandiego.org
to Maura Larkins
date Wed, Apr 28, 2010 at 9:18 PM
...However, the law does not allow anyone - a government official or a private person - to disobey a court order because they believe it is illegal. Under the law, the proper course is to seek appellate review of an order, and/or a stay of the order,rather than to disobey it. The rule of law in our system depends on compliance with court orders until or unless they are stayed or reversed...
David
Mr. Loy must also have known I was not legally required to de-publish the information about Stutz law firm on my website while the injunction was under appeal. (The mandative aspects of an injunction are staying during that time.) Either Mr. Loy was shockingly ignorant of the law, or he was intentionally deceiving me about the law to protect Stutz law firm when he said, “The rule of law in our system depends on compliance with court orders until or unless they are stayed or reversed...”. Why would he do this? To earn “civility” awards from the Bar Association? As a sort of trade-off of free speech rights, helping Dan Shinoff silence a teacher in exchange for Mr. Shinoff’s agreeing to settle student speech cases? To please donors to the ACLU who care less about education than they do about preserving the power of certain individuals in schools?
The Court of Appeal didn’t agree with Stutz law firm and the ACLU; on August 5, 2011 it ruled that the injunction Mr. Loy wanted me to obey was “exceedingly unconstitutional.” Of course, Mr. Loy knew perfectly well that the injunction was unconstitutional when he insisted that I must obey it.
But here’s the larger question: why did the ACLU board support Mr. Loy’s actions?
JUDGE JAMES STIVEN
I asked this question of ACLU board member Hon. James Stiven. He said, "I'm not getting involved because I'm a part of this organization." Wait a minute. Isn't that exactly why he has an obligation to get involved? He's on the board! He's in charge!
I said, "So if ACLU lawyers do something hostile to civil rights, you wouldn't intervene?"
He said, "I don't know that they have done anything wrong."
I said, "Yes you do. You're a judge."
Here's what they've done wrong:
1) To start with, David Loy aided and abetted a violation of my constitutional rights. I believe he intentionally gave me false legal advice in an effort to silence me.
2) The San Diego ACLU seeks and gets money by false advertising. I have heard ACLU speakers around town repeating what Kevin Keenan said at the 2012 Annual Membership meeting, "We guarantee rights for all people, not just the people we like. We stand up for equal protection of all people."
3) The above tactics have been approved at the highest levels of the San Diego ACLU. The San Diego ACLU Board knows about and tacitly approves the above actions.
The San Diego ACLU's odd relationship with local schools
ACLU's David Loy and Darren Chaker
See new posts re David Loy and earlier posts under his former name of David Blair-Loy.
The ACLU claims that it does not give legal advice regarding cases it refuses, but it turns out that this is false. The ACLU refused my case, but I was given very specific legal advice by San Diego ACLU attorney David Loy (formerly Blair-Loy) regarding the defamation case against me by Stutz law firm. In 2010 Mr. Loy wrote to me in an email that I must remove every mention of the names of Stutz Artiano Shinoff & Holtz law firm, Daniel Shinoff and all the other Stutz attorneys from my website; he has never modified his position, even when I won in the Court of Appeal.
Why was Mr. Loy so determined to make sure that I obeyed the obviously unconstitutional order of Judge Judith Hayes? I'm a third-grade teacher, and I knew the injunction was unconstitutional. Clearly, Mr. Loy knew perfectly well that he was insisting that I obey an unconstitutional order. I did not follow Mr. Loy's legal advice; I would rather go to jail than obey that order. (And, in fact, Stutz law firm asked Judge Hayes to put me in jail, but she declined.) Instead, I appealed to the California Court of Appeal without the ACLU's help. Stutz law firm attorney Jack Sleeth argued before the Court of Appeal that my appeal should be dismissed because I disobeyed the trial court's order. Attorney Shawn Martin argued on my behalf that no Appeals Court had ever dismissed a case because an appellant disobeyed the very order that was being appealed.
The Court of Appeal asked Mr. Sleeth if he knew of any case law to back up his argument that since the injunction was a sanction, it therefore was not constrained by the Constitution. He said he had not been able to find any such case law, but he added, "I tried, believe me, I tried!" On August 5, 2011 the California Court of Appeal in San Diego ruled that Judge Hayes' (and Mr. Loy's) demand was "exceedingly unconstitutional."
As I walked out of the Court of Appeal after oral arguments, I was approached by Darren Chaker, who has a website sporting a photo of himself posing with a smiling David Blair-Loy. Mr. Chaker advised me to take down my website in exchange for Stutz law firm's agreement to not to make me pay attorney's fees. (Note to Mr. Chaker: the law does not allow attorney's fees in defamation cases.) I told Mr. Chaker that I would rather go to jail. He said, "I'm just advising you to do this because they are so nasty." Then Mr. Chaker went over to Jack Sleeth, and walked out of the building chatting with Mr. Sleeth!
So the question remains, why on earth would David Blair-Loy try to silence someone who criticized public school attorneys? Was he serving his own agenda, or the agenda of the board of the San Diego ACLU? Perhaps both. Loy's goal seems to be to maintain a reputation as "highly civil" with his fellow attorneys in San Diego, particularly Daniel Shinoff, who is often tasked by local schools with the job of limiting free speech.
But the ACLU board supported Mr. Loy's actions. Why? Were they trying to please big donors? I talked to board president David Higgins about this, but he claimed that he understood nothing about the law. I explained it to him carefully, but he continued to insist that he understood none of it. Why is such an individual in the position of board president of the San Diego ACLU? My guess is that he was chosen because he's willing to rubber-stamp every decision that David Loy makes, no matter how hostile it may be to civil rights. I conclude that Mr. Higgins does not really care about the constitution. I suspect he has a personal agenda that is limited to his own interests.
Here is the email sent to me by Mr. Loy:
from dblairloy@aclusandiego.org
to Maura Larkins
date Wed, Apr 28, 2010 at 9:18 PM
...However, the law does not allow anyone - a government official or a private person - to disobey a court order because they believe it is illegal. Under the law, the proper course is to seek appellate review of an order, and/or a stay of the order, rather than to disobey it. The rule of law in our system depends on compliance with court orders until or unless they are stayed or reversed...
David
In fact, Mr. Loy gave bad legal advice. The truth is that once I filed my appeal, the mandatory aspects of the injunction were automatically stayed, and I was not required to take down my web pages about Stutz. I think Mr. Loy knew this. What was your motive for giving me legal advice, Mr. Loy?
Following is the 2010-2011 ACLU board in San Diego, each member of which tacitly or actively supported Mr. Loy's actions:
William J. Aceves
Candace M. Carroll--Sullivan Hill Lewin Rez & Engel
Paula Doss, J.D.--Director of Human Resources for Equal Opportunity at UCSD
Ruben Garcia
David R. Higgins, Ph.D.
Gregory G. "Greg" Rose
Hon. James Stiven--California Western University
Stephen Whitburn
Mary Cruz
Mark Adams
Pat Boyce
Linda Cory Allen
Michele Fahley
Deborah Fritsch
Kevin "KJ" Greene
Dwight K. Lomayesva
Mark Niblack
Susan Pollock
Yvonne Sanchez
Here is the 2011-2012 ACLU board in San Diego, some of whom are new and were not involved in Mr. Loy's actions:
Mark Adams
Nasser Barghouti (NEW)
Elizabeth Camarena (new)
Candace Carroll
Jeff Chinn (new)
Paula Doss
Michele Fahley
Ruben Garcia
Kevin "KJ" Greene
David Higgins, Board President
Jonathan Lin (new)
Dwight Lomayesva
Jim McElroy (new)
Mark Niblack
Susan Pollock
Greg Rose
Hon. James Stiven
Joanna Tan (AIG!!!) (new)
Stephen Whitburn
Paul Wong SDSU(new)
Andy Zlotnik (new)
See new posts re David Loy and earlier posts under his former name of David Blair-Loy.
The ACLU claims that it does not give legal advice regarding cases it refuses, but it turns out that this is false. The ACLU refused my case, but I was given very specific legal advice by San Diego ACLU attorney David Loy (formerly Blair-Loy) regarding the defamation case against me by Stutz law firm. In 2010 Mr. Loy wrote to me in an email that I must remove every mention of the names of Stutz Artiano Shinoff & Holtz law firm, Daniel Shinoff and all the other Stutz attorneys from my website; he has never modified his position, even when I won in the Court of Appeal.
Why was Mr. Loy so determined to make sure that I obeyed the obviously unconstitutional order of Judge Judith Hayes? I'm a third-grade teacher, and I knew the injunction was unconstitutional. Clearly, Mr. Loy knew perfectly well that he was insisting that I obey an unconstitutional order. I did not follow Mr. Loy's legal advice; I would rather go to jail than obey that order. (And, in fact, Stutz law firm asked Judge Hayes to put me in jail, but she declined.) Instead, I appealed to the California Court of Appeal without the ACLU's help. Stutz law firm attorney Jack Sleeth argued before the Court of Appeal that my appeal should be dismissed because I disobeyed the trial court's order. Attorney Shawn Martin argued on my behalf that no Appeals Court had ever dismissed a case because an appellant disobeyed the very order that was being appealed.
The Court of Appeal asked Mr. Sleeth if he knew of any case law to back up his argument that since the injunction was a sanction, it therefore was not constrained by the Constitution. He said he had not been able to find any such case law, but he added, "I tried, believe me, I tried!" On August 5, 2011 the California Court of Appeal in San Diego ruled that Judge Hayes' (and Mr. Loy's) demand was "exceedingly unconstitutional."
As I walked out of the Court of Appeal after oral arguments, I was approached by Darren Chaker, who has a website sporting a photo of himself posing with a smiling David Blair-Loy. Mr. Chaker advised me to take down my website in exchange for Stutz law firm's agreement to not to make me pay attorney's fees. (Note to Mr. Chaker: the law does not allow attorney's fees in defamation cases.) I told Mr. Chaker that I would rather go to jail. He said, "I'm just advising you to do this because they are so nasty." Then Mr. Chaker went over to Jack Sleeth, and walked out of the building chatting with Mr. Sleeth!
So the question remains, why on earth would David Blair-Loy try to silence someone who criticized public school attorneys? Was he serving his own agenda, or the agenda of the board of the San Diego ACLU? Perhaps both. Loy's goal seems to be to maintain a reputation as "highly civil" with his fellow attorneys in San Diego, particularly Daniel Shinoff, who is often tasked by local schools with the job of limiting free speech.
But the ACLU board supported Mr. Loy's actions. Why? Were they trying to please big donors? I talked to board president David Higgins about this, but he claimed that he understood nothing about the law. I explained it to him carefully, but he continued to insist that he understood none of it. Why is such an individual in the position of board president of the San Diego ACLU? My guess is that he was chosen because he's willing to rubber-stamp every decision that David Loy makes, no matter how hostile it may be to civil rights. I conclude that Mr. Higgins does not really care about the constitution. I suspect he has a personal agenda that is limited to his own interests.
Here is the email sent to me by Mr. Loy:
from dblairloy@aclusandiego.org
to Maura Larkins
date Wed, Apr 28, 2010 at 9:18 PM
...However, the law does not allow anyone - a government official or a private person - to disobey a court order because they believe it is illegal. Under the law, the proper course is to seek appellate review of an order, and/or a stay of the order, rather than to disobey it. The rule of law in our system depends on compliance with court orders until or unless they are stayed or reversed...
David
In fact, Mr. Loy gave bad legal advice. The truth is that once I filed my appeal, the mandatory aspects of the injunction were automatically stayed, and I was not required to take down my web pages about Stutz. I think Mr. Loy knew this. What was your motive for giving me legal advice, Mr. Loy?
Following is the 2010-2011 ACLU board in San Diego, each member of which tacitly or actively supported Mr. Loy's actions:
William J. Aceves
Candace M. Carroll--Sullivan Hill Lewin Rez & Engel
Paula Doss, J.D.--Director of Human Resources for Equal Opportunity at UCSD
Ruben Garcia
David R. Higgins, Ph.D.
Gregory G. "Greg" Rose
Hon. James Stiven--California Western University
Stephen Whitburn
Mary Cruz
Mark Adams
Pat Boyce
Linda Cory Allen
Michele Fahley
Deborah Fritsch
Kevin "KJ" Greene
Dwight K. Lomayesva
Mark Niblack
Susan Pollock
Yvonne Sanchez
Here is the 2011-2012 ACLU board in San Diego, some of whom are new and were not involved in Mr. Loy's actions:
Mark Adams
Nasser Barghouti (NEW)
Elizabeth Camarena (new)
Candace Carroll
Jeff Chinn (new)
Paula Doss
Michele Fahley
Ruben Garcia
Kevin "KJ" Greene
David Higgins, Board President
Jonathan Lin (new)
Dwight Lomayesva
Jim McElroy (new)
Mark Niblack
Susan Pollock
Greg Rose
Hon. James Stiven
Joanna Tan (AIG!!!) (new)
Stephen Whitburn
Paul Wong SDSU(new)
Andy Zlotnik (new)
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
msnbc.com
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.
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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.
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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."
Sandusky's dinner with alleged victims raises new legal questions
msnbc.com
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.
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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.
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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 DEFENDANT OUTDOOR ...
www.morrissullivanlaw.com
STUTZ, ARTIANO, SHINOFF & HOLTZ. A Professional Corporation.
Robert R. Templeton, Jr., Esq., State Bar No. 116557.
Casey Pope, Esq
Rancho California RV Resort Owners Association v. Outdoor Resorts of American, Inc.
STUTZ, ARTIANO, SHINOFF & HOLTZ DEFENDANT OUTDOOR ...
www.morrissullivanlaw.com
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
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.
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
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
08/09/2011
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...
by lesliebrodie Pro
08/09/2011
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.
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
SDUT
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.
Prosecutors allege she took more than $100,000 from 3 clients
By Jeff McDonald
SDUT
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 Chinasmack.com 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.
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 Chinasmack.com 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...
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
Findlaw.comk
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?
By Cynthia Hsu
Findlaw.comk
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.
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.
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
SDUT
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...
Aaron Burgin
SDUT
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...
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.
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.
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