The Illinois Attorney Registration and Disciplinary Commission panel gave an account of the underlying facts:

After the Respondent arrived home from work on the evening of March 18, 2008, someone came to the front door, but the Respondent did not go to the door. (Tr. 25-26). The Respondent saw a dark green over gray van parked in his driveway, behind the Respondent’s truck. (Tr. 123-24). He called the Anna Police Department and spoke with the dispatcher, Danny Holdman. The Respondent identified himself and stated that he knew the police were busy because of heavy rain and flooding. He asked that, if “somebody has time,” could an officer asked the driver to move the van in the driveway because the Respondent was going to be leaving. He also mentioned to the dispatcher that the person parked in his driveway was the process server who had gone to his office earlier. The Respondent acknowledged that he did not want to cooperate with the process server. The Respondent never saw the process server that evening. (Tr. 27, 124-25).

On the following day, March 19, 2008, the Respondent left for work at 7:25 a.m., and drove to the courthouse parking lot. (Tr. 28, 128). He parked at the “lower end” of the lot. It was raining “pretty good” and, when he got out of his truck, he opened a golf umbrella. He walked up the hill toward the side door of the courthouse, which was between 120 and 150 feet away. (Tr. 129-30, 254). While he was walking, he had his head down and was thinking about his upcoming murder trial. (Tr. 131). He heard a noise behind him, turned, and saw a van come into the parking lot. The van “came speeding up the parking lot,” went past the Respondent, and pulled into a parking space ahead of him. (Tr. 132). He said this was not the same van that was parked in his driveway the night before. (Tr. 123-24). The Respondent saw a man get out of the van and “come running” or “trotting” toward the Respondent “fairly quickly.” (Tr. 133, 254). At first, the Respondent thought the man was a “meth cook” named Rusty Smith. But, when the man got closer, Respondent knew it was not Smith. (Tr. 133, 136). The man had his left hand under a fleece he was wearing. (Tr. 133). The Respondent’s hand was in a pocket where his gun was located. He pulled the gun out, and said “stay back, I don’t know who are.” (Tr. 134-35). The Respondent denied that he pointed his gun at the man, but said the gun was “pointed in his direction.” (Tr. 137, 156-57). The man kept coming toward the Respondent, and pulled out something that looked like a wallet. He flung open the wallet, showed the Respondent a “white card with red across the top,” and said he was a process server. (Tr. 134-35, 137, 154). The Respondent did not see a badge. (Tr. 254). At that point, the Respondent thought the man was “probably the process server.” (Tr. 154). The Respondent, while still holding his gun in his hand, again said “stay back, I don’t know who you are.” (Tr. 135, 154-55). The man came closer to the Respondent, said “I’m serving these papers” and tossed them down at the Respondent’s feet. (Tr. 135, 255). The Respondent said “get back,” and the man turned and went back to his vehicle. (Tr. 135). As the Respondent was walking up the steps to the side door of the courthouse the same man came near the handrail and said “I’m a process server, you can’t pull a gun on me, I’m going to go to the sheriff’s department.” The Respondent replied “go ahead.” (Tr. 135).

So James admitted to dodging service of process and knew that the van that he saw previously was probably the same server. He was being sued by Billie Henderson as his former secretary over her termination.

James ran for reelection while charged with felonies but was defeated. James is now in private practice in Anna, Illinois.

Notably, when he was elected in 2004, James insisted “I think it’s time that the state’s attorney’s office quits being the talk of the county. I don’t desire the office to be the focal point of the community, and I don’t desire to be the focal point of the community. I think people are ready for that – a calm state’s attorney’s office.” Well, that did not quite work out.

Source: ABA Journal

When she made partner, Kreindler & Kreindler proclaimed:

Dr. Friery is one of only an estimated 2,500 medical doctor/attorneys in the nation, of which less than 100 are representing the rights of victims and their families at plaintiff law firms. Over the last 17 years Dr. Friery has brought her combined legal and medical expertise and skills to bear on hundreds of death and injury cases handled by Kreindler, the nation’s preeminent aviation law firm.

The opinion notes that Friery repeatedly used her claim of a medical license in a variety of professional contexts:

During her tenure at the firm, the respondent made or countenanced false representations as to her credentials, including but not limited to the following particulars:
a) The respondent’s name appeared as “M.D.” or “Dr.” on the firm’s letterhead, business cards, notices of appearance, legal memorandum and other documents filed in numerous courts;
b) On divers times, the respondent was professionally addressed, introduced as, and introduced herself, both orally and in writing, to clients, colleagues, stenographers, firm employees, opposing counsel, medical providers and others as, “Dr. Friery” or as a medical doctor or as a physician;
c) The respondent held herself out to bar associations, bar association committees, and other professional groups as a doctor or physician; and
d) The respondent presented at and attended CLE trial lawyer association seminars and meetings in which she falsely represented that she had graduated from medical school and was a medical doctor.

That claims gave her heightened credibility in her practice and her public work. She was even later selected as Massachusetts’ most beautiful lawyer, which included this description (and a picture that shows that she is as flexible as her résumé):

Susan, a medical consultant and senior associate for Kreindler & Kreindler, handles a variety of mass disaster, personal injury, and medical malpractice litigation. She has worked on hundreds of 9/11 World Trade Center cases, as well as on the settlement for the Pan Am Lockerbie terrorist plan bombing.

Susan loves yoga and volunteers at charities such as Habitat for Humanity.

Friery did take courses in pathology at SUNY Buffalo School of Medicine and worked as a morgue technician, but never graduated from the program. Yet, she claimed to have finished in the top 1 percent of her class at the College of Physicians and Surgeons of Columbia University. She started work as a paralegal at Kreindler & Kreindler LLP, which paid 75% of her tuition to go to New York Law School. She was then hired as an associate and later a partner. It would be interesting to see if she claimed the medical degree with the law school.

What is fascinating is that it is a crime to practice medicine without a license. However, this is not a form of practicing medicine so there appears no criminal charge. Yet, there could be a claim of fraud in holding oneself out to clients as a doctor — a claim that could be viewed as implied as justification for the higher partner rates. Yet, the Massachusetts panel helped her a great deal legally with the following finding:

There is no indication that the respondent’s misrepresentations had any adverse effect on the quality of the respondent’s work on behalf of the firm and its clients, or that such misrepresentations caused any harm to the firm or its clients. Many of the misrepresentations made or repeated by colleagues or staff as to respondent’s credentials were made without the respondent’s direct participation, although she was generally aware that they were being made. In addition, many of the misrepresentations were made in a context in which they were not material to any specific pending decision or action by a client, adversary or tribunal.

This is truly sad case for everyone involved.

Ablavsky stole the file for the case of Jose Cabrera, a Lynn man charged in a gang-related shooting in Lynn. Cabrera’s lawyer, Jeff Karp, received a call from Ablavsky who told him that he shredded the file to prevent the prosecution from proceeding to trial. He was wrong of course. Cabrera was later convicted of second-degree murder.

While Ablavsky did not represent Cabrera, he reportedly tried to represent Cabrera’s brother, Miguel Cabrera, 19, just hours before his own arrest by appearing at an arraignment (despite the brother having counsel). Cabrera’s father says that Ablavsky begged him to hire him to represent his son and promised to do so at a lower cost than his current lawyer.

Salem Superior Court Judge David Lowy gave Ablavsky 18 months in jail with all but 64 days suspended — as well as a two year probation sentence.

Notably, Ablavsky implicated an unknown person by telling the court that he did not shred the file but gave it to another person who destroyed it. There is no information on who that other person is.

The bar has, and should, consider mental illness as a mitigating factor but this record is replete with disbarring criteria. It seems clear that this is a troubled person who needs help, but he will have to find it as a non-lawyer.

Source: Salem News as first seen on ABA Journal

Both Iowa Division of Criminal Investigation and the Iowa attorney general have been asked to investigate the matter and Shaw has withdrawn the claim as mysteriously as it was made. Officials say that they received the ticket on behalf of a trust on Dec. 29th — a trust listed as a corporation in the country of Belize. When the lottery asked about how the ticket was located and the identification of the purchaser, Shaw withdrew the claim. The lottery wants to know how Shaw, 76, obtained the ticket to make sure it wasn’t stolen and that a valid player bought it. Shaw — not the client — signed the ticket on behalf of the trust. Shaw signed on behalf of Bedford, N.Y.-based Hexham Investments Trust, but misspelled the trust name. He shipped the ticket by FedEx to a Des Moines law firm for submission to the lottery. He then sent a fax to the lottery saying that he simply did not know the identity of the purchaser.

As questions grew, Shaw, 76, had the local firm submit a fax that read “In order that the claim be resolved without further controversy, Crawford Shaw, as Trustee for and on behalf of the Trust, does hereby withdraw the Claim and does hereby agree to take no further action to enforce the Claim.”

Shaw reportedly has been involved in controversies involving fraud in the past, including a minor role in Industrial Enterprises of America, a chemical company that was bankrupted in 2009 in a stock manipulation scheme.

There is no evidence that Shaw would have benefitted from the ticket’s redemption, but lawyers can be sanctioned for failing to make reasonable inquiries on the basis for claims and, of course, there are criminal penalties if a lawyer knowingly participates in a fraudulent claim.

Source: ABC

  I’d actually halfway finished a blog on a different subject today, when I was spun in a different  direction. Thursday night I had done something I never do and watched the Republican Debate in Florida. It was frighteningly enlightening to say the least, but what stood out for me was Newt commenting that our President was a disciple of Saul Alinsky. I thought then “How many people today know who Saul Alinsky was and what he represented?” On last nights Bill Maher’s show, Bill asked the question “Who was Saul Alinsky?” as part of his New Rules segment. This morning in HuffPost, Frank Mankiewicz addressed a variant of the same question: http://www.huffingtonpost.com/frank-mankiewicz/america-meet-saul-alinsky_b_1238953.html

The idea of following heroes to me has always seemed silly, yet there are people whose lives and work I deeply admire and to some sense try to emulate. My first was Clarence Darrow and it is therefore no coincidence that I am a denizen of this blog. http://en.wikipedia.org/wiki/Clarence_Darrow .  Clarence Darrow’s picture is used above because it is in the public realm, while mysteriously Saul Alinsky’s isn’t. Obviously, Saul Alinsky is another person whose life I admire. http://en.wikipedia.org/wiki/Saul_Alinsky  Alinsky was a radical in his methods, but one who eschewed the doctrinaire self assurance of an ideologue. When asked if he ever considered joining the Communist Party he famously replied”

“Not at any time. I’ve never joined any organization—not even the ones I’ve organized myself. I prize my own independence too much. And philosophically, I could never accept any rigid dogma or ideology, whether it’s Christianity or Marxism. One of the most important things in life is what Judge Learned Hand described as ‘that ever-gnawing inner doubt as to whether you’re right.’ If you don’t have that, if you think you’ve got an inside track to absolute truth, you become doctrinaire, humorless and intellectually constipated. The greatest crimes in history have been perpetrated by such religious and political and racial fanatics, from the persecutions of the Inquisition on down to Communist purges and Nazi genocide.”

His was a belief that has resonated with me since those radical days in the 60’s, with the Movement, when I was surrounded by and courted by various ideologies, mostly Marxist whose rigidity of thought and party line belief, actually disgusted me. Yet there was Alinsky, the man who literally wrote the book on community organizing, who felt similarly towards ideological rigidity. He was truly an America Patriot, whose guiding idea was to assist downtrodden people to gain power over their lives and give them a chance to decide their fates. Alinsky was a man who achieved great success, if you define success as achieving ones goals. The disdain and demonization again being heaped upon him today comes from the very real threat his methodology has towards the 1% elite and curiously that aim of his was the reinstatement of “The American Dream” of freedom, equality and social justice.

The current conservative obsession with Alinsky comes from the fact that Barack Obama was supposedly an Alinsky disciple because of his community organizing work in Chicago:

“Biographer Sanford Horwitt has claimed that U.S. President Barack Obama was influenced by Alinsky and followed in his footsteps as a Chicago-based community organizer. Horwitt furthermore has asserted that Barack Obama’s 2008 presidential campaign was influenced by Alinsky’s teachings.”

Adding to their “Alinsky disdain” is that:

“Hillary Clinton‘s senior honors thesis on Saul Alinsky, written at Wellesley College, noted that Alinsky’s personal efforts were a large part of his method.”

Thus we see two villains of the extreme Right Wing of the Republican Party, being linked somewhat to Alinsky, makes bringing him back into play as a “bogeyman” fitting. In truth one of the things that swayed me to support Obama in the first place were his ties to Alinsky, via his community organizing work in Chicago. For these extremists, however, the fact that Alinsky died when Obama was ten years old, is irrelevant. The President and Hilary, to their minds, have been polluted by Alinsky’s teachings. Why one would ask are the teachings of someone who was not a Marxist, not specifically anti-capitalist and believed that people should have the freedom to make up their own minds politically, be so damned threatening to the Extreme Right?

My take on the “why” is twofold. The first is that Alinsky believed in “empowerment” of those like Blacks, Stockyard workers and the poor in general. His methods, though non-violent, were disruptive of the status quo. He became so effective in organizing protests that sometimes just the threat of a protest led to negotiation with “the powers that were”. Take a look at this particular tactic and smile:

“After organizing FIGHT (an acronym for Freedom, Independence, God, Honor, Today) in Rochester, New York, Alinsky once threatened to stage a “fart in” to disrupt the sensibilities of the city’s establishment at a Rochester Philharmonic concert. FIGHT members were to consume large quantities of baked beans after which, according to author Nicholas von Hoffman, “FIGHT’s increasingly gaseous music-loving members would hie themselves to the concert hall where they would sit expelling gaseous vapors with such noisy velocity as to compete with the woodwinds.”^[9] Satisfied with the reaction to his threat, Alinsky would later threaten a “piss in” at Chicago O’Hare Airport. Alinsky planned to arrange for large numbers of well dressed African Americans to occupy the urinals and toilets at O’Hare for as long as it took to bring the city to the bargaining table. According to Alinsky, the threat alone was sufficient to produce results.^[9]”

The elite of his time were infuriated that he had the temerity to disrupt their privileged existence. They insisted that by his not working through the “system” he was destroying our ordered way of life. The fact for instance that Blacks in the South had no system to work through, was irrelevant to those conservative forces reaping the “systems” benefits.

“In Alinsky’s opinion, new voices and new values were being heard in the U.S., and “people began citing John Donne‘s ‘No man is an island,’” he said. He observed that the hardship affecting all classes of the population was causing them to start “banding together to improve their lives,” and discovering how much in common they really had with their fellow man.^[4] He stated during an interview a few of the causes for his active organizing in black communities:

“Negroes were being lynched regularly in the South as the first stirrings of black opposition began to be felt, and many of the white civil rights organizers and labor agitators who had started to work with them were tarred and feathered, castrated—or killed. Most Southern Democrat politicians were members of the Ku Klux Klan and had no compunction about boasting of it.”^[4]”

The second reason Alinsky is anathetimized is because his tactics work so damn well that people actually gain empowerment from them. This works in tandem with the fact that it is non-ideological, so it works to blur divisions between class, race and religion. The American Elite has always made its’ mark by sowing division among the 99%. This is in fact the entire operating structure that has kept the power structure in place. It to me it is little coincidence that the real opposition to MLK  outside the South, came at a point when his organizational effort went beyond Black Civil Rights and began to display opposition to poverty and the Viet Nam War. In the South post-bellum, the average White, while still suffering under the economic oppression of the South’s Elite, under a deeply unfair economic system, nevertheless could be comforted in their poverty by the fact that their status was higher than Blacks.

What is too madly ironic to be funny is that we see today the Ultra Conservatives utilizing Alinsky’s techniques to further their ends:

“Adam Brandon, a spokesman for the conservative non-profit organization FreedomWorks, which is one of several groups involved in organizing Tea Party protests, says the group gives Alinsky’s Rules for Radicals to its top leadership members. A shortened guide called Rules for Patriots is distributed to its entire network. In a January 2012 story that appeared in The Wall Street Journal, citing the organization’s tactic of sending activists to town-hall meetings, Brandon explained, “his tactics when it comes to grass-roots organizing are incredibly effective.” Former Republican House Majority Leader Dick Armey also gives copies of Alinsky’s book Rules for Radicals to Tea Party leaders.^[19]”

Below you will find a link to an illuminating debate between Alinsky and William F. Buckley. There are only five minutes video to be seen of this hour long “Firing Line” episode, but it is highly instructive. From this link you can also obtain a PDF link to a transcript of the entire debate. In both the Buckley salvos and the Alinsky responses you can see the essece of the men. Buckley, limited in tangible argument turning again and again to his huge vocabulary to throw up the smokescreen that he is actually making telling points. Alinsky, surprisingly (for political debate), honestly exposing himself as a human being, while demolishing Buckley’s false charges that would make Alinsky a threat to American Democracy.  http://hoohila.stanford.edu/firingline/programView2.php?programID=99

Looking at the Occupy Wall Street Movement I have no proof, but little doubt, that its organizers have been highly influenced by Saul Alinsky. In my opinion we all need to brush up on the Alinsky methodology today as our only way out of the dawning of an age of Corporatist Fuedalism. Voting can only be used to stave off the potential disasters that await the 99%, if the direction of this country doesn’t change. So in answer to my posed question: “Who in Hell is Saul Alinsky”, he is one of the great minds of the Twentieth Century, when it comes to finding non-violent means of developing a more humane society. I believe that putting his concepts into use by those who truly love this country can finally bring about the changes that will save America from becoming just another Third World Nation under the rule of a monied elite.

Submitted by: Mike Spindell, guest blogger.

]]> http://jonathanturley.org/2012/01/28/who-in-hell-is-saul-alinsky/feed/ 53 jonathanturley 433px-Clarence_Darrow http://jonathanturley.org/2012/01/26/thou-shalt-not-steal-tennessean-judge-accused-of-stealing-money-raised-for-ten-commandments-display/ http://jonathanturley.org/2012/01/26/thou-shalt-not-steal-tennessean-judge-accused-of-stealing-money-raised-for-ten-commandments-display/#comments Thu, 26 Jan 2012 15:31:14 +0000 jonathanturley http://jonathanturley.org/?p=44498 ]]> Hawkins County (Tenn.) Sessions Court Judge James “Jay” Taylor appears to attract investigations the way motor homes attract tornados. He has been sued in various civil lawsuits and has now been hit with five criminal charges, including stealing money that he raised for a “Citizens Heritage Display” including the Ten Commandments to be placed in the lobby of the Hawkins County Justice Center. He is continuing his push for reelection as well as his performances as part of “The Redeemed Southern Gospel Singing Quartet.”

The charges include stealing from a client and taking money for legal services not rendered. Before his appointment in May, Taylor served as juvenile court judge. He insists on the Ten Commandments allegation that “All money raised in support of the Foundations Display (Citizens Heritage Display) was given in a cashier’s check to a member of the American Legion, along with a list of people who had made contributions.”

Taylor is up for reelection in March. He may quietly want to lose since some if not all of these charges may be dropped if he were not on the bench. His bio states the following:

Judge Taylor graduated from East Tennessee State University, in 1994, with a degree in Political Science. He graduated from Mercer University School of Law, in 1997, and was admitted to practice law that same year. Taylor was appointed in 2011 as the Judge of the General Sessions Court of Hawkins County, after having been elected as the Judge of the Juvenile Court in 2006. He has been a speaker and instructor on a variety of legal topics, including being selected by the State of Tennessee to train the clerks of courts on juvenile law and procedure.

Judge Taylor and his wife, Julia North Taylor, of The Redeemed Southern Gospel Singing Quartet, have two sons, Cross and Luke. The Taylor family lives in Hawkins County, Tennessee. Taylor is a member of Spires Chapel Baptist Church where he is the Youth Leader and a Sunday School teacher. Having come from a family of pastors, and having his father-in-law serve as pastor of his church, Taylor’s life and interests revolve around his church and family. His grandparents had a powerful and spiritual influence on his life, and Taylor’s life has been largely guided by Papa Best’s advice: God has given each of us a special talent and gift; prayerfully find yours, and then serve God with it.

Source: TimesNews as first seen on ABA Journal.

The Top 500 Lawyers again includes many familiar names from Carter Phillips to David Bois to the current members of the United States Supreme Court. This year also includes two other academics: Harvard’s Elizabeth Warren and California Irvine’s Edwin Chemerinsky. Warren however is listed as “government/academic” due to her run for the Senate.

Thanks again to LawDragon and congratulations to everyone who made the list this year.

We have all certainly heard of the important Freedom of Speech cases that the Roberts led Supreme Court has decided.  Citizens United is probably the most prominent one that comes to my mind.  Of course, the Citizens United case promoted the ability of corporate entities to enjoy full Free Speech rights. Other important Free Speech cases that were decided by the Roberts Court include the military funeral case of Snyder v. Phelps, et al,(131 S. Ct. 1207 (2011) ) and the Brown v. Entertainment Merchants case (131 S. Ct. 2729 (2011) ) in California which overturned a California law which required parental consent for minors to rent or buy violent video games.  Because of these decisions and others, some scholars and constitutional law experts make the claim that the Roberts Court is the most pro-free speech Supreme Court in history!

I think that the attempt by some to put the Roberts Court on a pedestal when it comes to free speech cases is a bit premature and possibly misleading.  As Dean Erwin Chemerinsky suggests, the Roberts court has been less than friendly to employees and students making free speech claims. “Based on these cases, it is tempting to generalize that the Roberts Court is strongly protective of speech. In fact, I recently heard Baylor University President Ken Starr proclaim that this is the most free speech Court in American history. As is often the case with generalizations from a small sample, this one is inaccurate and hides the reality: the Roberts Court frequently rules against free speech claims.Part I of this Lecture looks at the Roberts Court’s dismal record of protecting free speech in cases involving challenges to the institutional authority of the government when it is regulating the speech of its employees, its students, and its prisoners, and when it is claiming national security justifications.”  Arizona Law Review

Let’s take a closer look at just one of the areas where the Roberts Court has not been the bastion of Free Speech.  As Dean Chemerinsky suggests the Roberts Supreme Court seems to forget about whose speech it is protecting when it comes to what I consider some of the groups who need the protection the most.  One case that Dean Chemerinsky reviewed really jumped off the page when I read it.  The case in question was Garcetti v. Ceballos, (547 U.S. 410 (2006) ).

The Garcetti case involved a District Attorney who believed that one of his witnesses may have lied in court and he wrote a memo to the Defense attorneys under the belief that he had a Constitutional duty to inform them of these facts and concerns.  Needless to say, his employer, The County of Los Angeles was not happy that justice may have triumphed and denied him an expected promotion and transferred him to a less than desirable position.  The Roberts Court in a 5-4 decision decided that government employees have no freedom of speech rights when it comes to their duties on the job.

“The issue before the Court was whether Ceballos’s speech was protected  by the First Amendment.  Although the Court has long held that there is constitutional protection for the speech of government employees, it ruled against Ceballos. The Court drew a distinction between speech “as a citizen” and speech “as a public employee”; only the former is protected by the First Amendment.  Justice Kennedy stated: “[W]hen public employees make statements pursuant to their official duties, the employees are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate their communications from employer discipline.”  The Court expressed great concern about the disruptive effects of allowing employees to bring First Amendment claims based on their on-the-job speech.  Justice Kennedy wrote that allowing such claims “would commit state and federal courts to a new, permanent, and intrusive role, mandating judicial oversight of communications between and among government employees and their superiors in the course of official business. This displacement of managerial discretion by judicial supervision finds no support in our precedents.”  The Court observed that civil service protections provide safeguards for employees against retaliation for their speech.”  Chemerinsky

The Roberts Court in the Garcetti case severely limited speech by government employees even though by doing so it would be limiting speech which they have stated in the Citizens United case would do disservice to Free Speech rights. “The case’s premise that the First Amendment protects only speech “as citizens” has no foundation in other case law. For example, in Citizens United v. Federal Election Commission, the Court protected the speech of corporations even though they, of course, are not citizens.29 The explicit premise of Citizens United is that more speech is better whatever the source;30 the effect of Garcetti v. Ceballos is that there will be significantly less speech. Moreover, government employees do not lose their citizenship when they walk into the government office building.” Dean Chemerinsky

Due to space and time constraints, I cannot review all the cases that suggest that the Roberts Court was not a champion of Free Speech.  Dean Chemerinsky also discusses cases related to students and prisoners and how the Roberts Court has not championed Free Speech for those groups.  I highly recommend that you read the Arizona Law Review article that is linked here.  The author, Dean Erwin Chemerinsky argues that the opposite might be true.  He asserts that when government interests and corporate interests are involved, Free Speech by employees and citizens is not so well protected by Roberts and his associates on the Court.  If more speech is what the Court states is the goal of the Freedom of Speech, why should it matter who is doing the speaking?

If whistle blowers do the right thing and speak up and disclose an injustice being done by or allowed by the government or corporations, why should their Free Speech rights be left outside the building?  Doesn’t this type of decision actually defeat the real purpose of the Freedom of Speech as outlined by the Roberts Court in the Citizen United (130 S. Ct. 876 (2010)) case? How useful and effective can Freedom of Speech be if it is limited to cases that are obvious and preferred by the government and corporate interests?  Wouldn’t it be in society’s best interest that the truth is actually disclosed in a criminal case?  Let’s hear what you think?

LINKS:

Citizens United v. Federal Election Commission

Snyder v. Phelps, et al

Brown, Governor of California, et al, v. Entertainment Merchants Association, et al

Garcetti et al,  v.  Ceballos

Yesterday, my column “10 Reasons The United States Is No Longer The Land Of The Free” ran in the Sunday Washington Post. I have been heartened by response to the column. However, a few commenters continue to suggest that the National Defense Authorization Act (NDAA) does not allow for the indefinite detention of citizens. This claim is being advanced by Senator Carl Levin (D., Mich.) in emails and fax messages to voters. I wanted to respond to Senator Levin’s points which are detached from language of the law and the clear intent of the majority of Senators. I would also like to address those who have stated that our liberties are not at risk when such powers will not affect most Americans.

I have previously explained why the claim by Sen. Levin is unfounded, as have others like the ACLU and commentators like Glenn Greenwald. The White House itself offered the spin to supporters in Congress, explaining why the President reneged on his pledge to veto the law. The White House is saying that changes to the law made it unnecessary to veto the legislation. That spin is facially ridiculous. The changes were the inclusion of some meaningless rhetoric after key amendments protecting citizens were defeated. The provision merely states that nothing in the provisions could be construed to alter Americans’ legal rights. Since the Senate clearly views citizens are not just subject to indefinite detention but even execution without a trial, the change offers nothing but rhetoric to hide the harsh reality. The exemption for American citizens from the mandatory detention requirement (section 1032) is the screening language for the real section, 1031, which offers no exemption for American citizens from the authorization to use the military to indefinitely detain people without charge or trial. Section 1031 only contains a meaningless provision stating “Nothing in this section shall be construed to affect existing law or authorities relating to the detention of United States citizens, lawful resident aliens of the United States, or any other persons who are captured or arrested in the United States.”

First, this provision was added after an amendment to exempt citizens was defeated by the Senate — legislative history that any court is likely to note in the interpretation of its meaning.

Second, the fact that the Senate put a clear exemption in the mandatory detention provision for citizens but opted not to simply include the same provision in the discretionary detention provision reinforces this meaning.

Third, after the exemption for citizens was defeated overwhelmingly, the same Senators who voted to deny any exemption proceeded to vote for this language — clearly indicating that it did not offer such protection for citizens.

Fourth, Levin and others are seeking to deny the authority that the President just acknowledged in his signing statement. Obama stated “I want to clarify that my Administration will not authorize the indefinite military detention without trial of American citizens.” He does not deny that he has such authority . . . only that he does not intend to use it.

Fifth, Levin admitted on the floor that it was the White House that insisted on eliminating the exemption for citizens — affirming that without such an exemption, citizens would be subject to such detention. In an exchange with Senator Udall, Levin stated:

Is the Senator familiar with the fact that it was the administration which asked us to remove the very language which we had in the bill which passed the committee, and that we removed it at the request of the administration that this determination would not apply to U.S. citizens and lawful residents? Is the Senator familiar with the fact that it was the administration which asked us to remove the very language, the absence of which is now objected to by the Senator from Illinois?

Sixth, many of the members at the time of passage voiced their understanding that the provision authorized the indefinite detention of citizens – including those who wanted such a power codified and those who opposed the power. For example, At least Senator Lindsey Graham was honest when he said on the Senate floor that “1031, the statement of authority to detain, does apply to American citizens and it designates the world as the battlefield, including the homeland.”

Seventh, the language that was ultimately put into the bill was standard cover language for Senators who knew that they would be criticized for voting for the law. Indeed, when Levin referred to the language, he insisted that it would merely permit what is already permitted by law “whatever it may be.” Of course, the White House has claimed the right to kill citizens on the president’s sole authority. The indefinite detention of citizens would seem the lesser included in such a greater. Moreover, the Senators refused to change the existing law by putting in an exemption for citizens. It is also worth noting that the White House has successfully opposed the right of citizens to present national security powers to federal courts for independent review. What is the “law” is often only the assertion of power by the President – unchecked by judicial review.

Levin has been hammered by civil libertarians and liberals over his role in passing this harmful law. His official Senate site now features a statement at the top. One of his financial supporters (who told me that he had declared that he will not to support Levin in the future due to the bill) sent me the following email from Levin’s office:

“The provisions on detention of terror suspects in the bill got more attention than all these other important priorities. The criticism of these provisions has usually been wildly inaccurate; if the bill did what some of its critics claim, I would have led the opposition. . . . It does not prohibit civilian trials for terror suspects. It does not strip the FBI and other civilian law enforcement agencies of their authority. It does not allow the military to make arrests on U.S. soil. It does not enact new authority to hold U.S. citizens without trial or charge. It does not provide for indefinite detention of citizens without access to civilian courts.”

Note the use of new authority. This is authority that has been claimed as being part of the President’s inherent authority — just as he claims the right to kill citizens. However, this law codifies new detention powers and the Senate expressly chose not to exempt citizens — and the President himself acknowledged the ability to indefinitely detain citizens in his pledge not to use it. Moreover, it was the duty of Levin and others to fight the passage of this law in the absence of an exemption, including fighting to use every power available from a filibuster to demanding a president veto. Instead, they took the political convenient approach and sought to excuse their act of constitutional nonfeasance behind this meaningless language.

I am hardly shocked that senators are not answering the criticism over this provision by being open about their failure to protect citizens. However, I continue to be amazed by comments on the Washington Post and this blog from citizens that we are not really losing any rights because most citizens are unlikely to be subject to these powers. It is disgraceful argument that only “those” people will be denied rights so I must remain free. Of course, since these are secret powers, you are not likely to know if you have been subject to surveillance or some other measures. More importantly, something is not a right if it is discretionary with your government to allow or to take away. By the time you find yourself denied of the right, it is too late to do anything about it. It is the same amoral logic described by pastor Martin Niemöller:

First they came for the communists,
and I didn’t speak out because I wasn’t a communist.

Then they came for the trade unionists,
and I didn’t speak out because I wasn’t a trade unionist.

Then they came for the Jews,
and I didn’t speak out because I wasn’t a Jew.

Then they came for the Catholics,
and I didn’t speak out because I was Protestant.

Then they came for me
and there was no one left to speak out for me.

Thankfully are we not facing the type of horror faced by Niemöller, but the logic is the same: I do not need to object unless the government denies me a right.

The government always embraces abusive power by targeting the least popular among us. The test of patriotism is to fight for the values that define us. While people appear ready to protest over taxes against “big government,” some of the people often seem to remain silent in the face of the very abuses that the Framers sought to combat from indefinite detention to warrantless searches to assassination. The play on security as a rationale to limit freedom is nothing new. As Benjamin Franklin observed, “Those who would give up essential liberty to purchase a little temporary safety deserve neither liberty nor safety.”

Jonathan Turley

Almost four weeks ago I read an article in Huffington Post entitled: “Can Loving A Robot Lead to Divorce?” by Vicki Larson, a journalist. http://www.huffingtonpost.com/vicki-larson/robots_1_b_1150679.html  Ms. Larson introduces her piece by quoting the claims of a current manufacturer of anatomically correct “sex robots”, who presumably speak and move in sexual ways. I followed the article’s link to the website of the robots inventor, Douglas Hines, who enthusiastically discusses his creation and has a few videos (non-explicit) that demonstrate the robot’s “capabilities”. While the HuffPost article links the Company’s website, I’m not doing it here, since publicizing this device is not my aim. Should you want further information it is available at the articles link. The “sex robot” being produced now is but an update on inflatable sex toys, though with a “skeleton”, rudimentary movement and speech added. It therefore is only an opening reference to a real issue that will shortly become scientifically possible.

The next part of this short article is an overview with of the opinion of  Artificial Intelligence Expert David Levy http://www.scientificamerican.com/article.cfm?id=humans-marrying-robots  “It also may be the future of love and marriage, if you believe artificial intelligent (AI) expert David Levy, author of Love and Sex With Robots. According to Levy, human-robot sex, love and marriage is inevitable — perhaps as soon as 2025. He predicts that robots may not only be more lovable and faithful than many humans, but they may even be more emotionally available than the “typical American human male.” Not only will they make us become better, more creative lovers, but they also will offer those singles who feel a void in their emotional and sexual lives and married couples with differing sexual needs new, nonjudgmental ways to be happy and healthy. Although Levy believes that the “availability of regular sex with a robot will dramatically reduce the incidence of infidelity as we know it today,” he also acknowledges there may be some potential sticky points. “Some human spouses and lovers might consider robot sex to be just as unfaithful as sex with another person.”

Levy’s view naturally flows into the conclusion of the article which is an E Mail interview with Sonya Ziaja, a San Francisco Bay Area attorney who blogs at numerous law and policy media outlets as well as her own, Shark. Laser. Blawg.

“And what could be more fraught with legal dilemmas than a love triangle among a married couple and a sexbot? How that might impact a divorce? That’s what Ziaja explores in her paper, “Homewrecker 2.0: An Exploration of Liability for Heart Balm Torts Involving AI Humanoid Consorts,” which she presented at the 2011 International Conference on Social Robotics that took place in Amsterdam at the end of November.

“If the doll’s owner becomes enamored with the doll, and leaves his spouse, can the spouse sue as she or he would be able to if the interloper had been human? And who would be sued? The manufacturer? Inventor? The AI itself?” she questions. “So long as we’re intent on adding socially interactive AI into situations that would ordinarily be only human. … socially interactive robots need to be ‘safe to play with’ in a way that manufacturers of toaster ovens never had to imagine.”

Thus we are presented here with a legal quandary instigated by the advent of revolutionary technology affecting serious legal, moral and ethical issues. How should we view this inevitability and how shall we deal with it as a society?

The development of artificially intelligent robots has been a theme in speculative fiction dating back to the 1920 science fiction play R.U.R. http://en.wikipedia.org/wiki/R.U.R. The theme of that play was the development of Robots with artificial intelligence that eventually destroy humanity. Ninety-two years ago this piece of speculative fiction foresaw what is fast becoming possible today. Within the next two decades it is likely that artificially intelligent androids, with realistic sexual features, will be produced. They will be able to carry on conversations and yet if the laws don’t change they will essentially become chattel. The question then will be how this impacts on humanity in general and on U.S. Law in particular?

In one sense this development can be seen as a very positive one for those of us unable to find spouses and/or sexual partners. It may diminish rape, some might argue, but I think that a vain hope, since to me rape is more about power/sadism and less about sex, though sex provides a means to that end. Talking about relationships though, I can see “sex robots” having a profound effect on the sexual lives of many people. More and more today sex has become “commoditized” by Corporations seeking higher profits. It has become a “sales tool” and in the process sex has been sold to many as an aim in itself. In truth, it hasn’t been a hard sell because throughout human history many have seen sex as its’ own end. In the height of my testosterone fueled years, I never viewed sex strictly as an end, which was considered peculiar among my male friends, because for me it was always caught up in how much I was attracted to the personality of a female rather than just her personification as an opportunity for fun. In that sense I don’t think I am typical and so I think many males/females might find a responsive robot an easier companion than a real live human.

The coming of a sexually capable android with Artificial Intelligence (AI) is just years away. As alluded to above this will profoundly affect human society, I believe it will be seen as a danger by many and to others a liberation. If we think the law is severely taxed by complex issues now, wait until the day this evolution in technology becomes common reality. Perhaps initially there will be alienation of affection lawsuits; the assertion of new forms of marital desertion; issues of child custody; claims of sexual deviancy requiring control; and of course a threat to “normal” heterosexual marriage. That is the easy part. In truth, given the power of profit in human dealings all of those objections will be met and dealt with, in new permutations of law that will allow the widespread sale of this innovation.

Having self awareness has always been a criterion that we see as setting humans above and apart from other animals. The true measure of self-awareness is the ability to communicate that awareness to others. Experimentally it has been show that other creatures are self aware, including whales, dolphins, apes, dogs, etc. Despite this, humanity for the most part still exercises dominion over these lesser creatures, via denial and more effectively with might making right. Yet we are now on the verge of having actual AI androids, with self awareness a crucial component of true AI status, which will in effect be the beginning of a new race of beings. They will definitely be a race that seems outwardly in all respects human, but humans will have created them. Knowing humanity all too well I can see that we will expect this newly created race, to serve us well beyond being our “love slaves”. The law will adapt to cover these issues, but with ongoing legal/political warfare stretching over decades. Given the empty hullabaloo about Gay Marriage coming from religious entities today, the long continuing struggle for homosexual equality that has caused such bitterness, just imagine when the first male/female demands to be legally married to their android partner. (Please note here that I’m not even dealing with human cloning which is a parallel issue with the same potential volatile outcomes)

Sexuality and marriage are mere jumping off points for what will be one of the great confusing new realities/conflicts of human history, exacerbated by religious orthodoxy. This new race of beings, whether clone or android, will be self replicating in any of a number of ways. How will humanity deal with them, other than initially seeing them as chattel? If as a being you are self aware, have fair to high intelligence and the capability to self replicate, wouldn’t you chafe under the thumb of human rule? We then see that the basis of the popular “Terminator” http://en.wikipedia.org/wiki/Terminator_%28franchise%29    movie series has more depth than merely an excuse for spectacular battle and special effects, despite their creators unwillingness to plumb the less superficial depths of the films implications. Since many of those who regularly comment here are also Science Fiction enthusiasts, like me, they are quite aware that since Capek’s R.U.R., these themes have been constantly explored within that genre. Lately, I have been quite engrossed with Iain M. Banks “Culture” series, which incorporates this very discussion as its major theme. http://en.wikipedia.org/wiki/Iain_Banks  In the past though Isaac Asimov dealt extensively with this and developed his “Three Laws of Robotics”.  Asimov showed perhaps naive faith that all manufacturers would incorporate these “Laws” into their creations.  Unfortunately, due to the era Asimov worked in, exploring robot sexuality in depth would have been taboo and possibly legally dangerous. http://en.wikipedia.org/wiki/Three_Laws_of_Robotics

I began with robot sex and marriage, but I’ve ended up dealing with what to me will be the greater issue threatening or benefiting humanity. Given we don’t destroy ourselves first; humans will be creating sentient life very shortly. Since all new technology is impelled by the quest for knowledge, with the quest for profit following closely in its wake, evolutionary/revolutionary change is unavoidable. How we deal with these coming innovations may shape the future of our species for good or ill. I personally haven’t decided where I stand in terms of this beginning debate; perhaps you can assist with my ambiguity?

submitted by: Mike Spindell, guest blogger

The group has previously stirred up controversy over what is described as cult-like activities. A site that appears tied to the group explains:

The Samanta Roy Institute of Science & Technology was founded and is headed by Dr. R. C. Samanta Roy, a naturalized American citizen originally from India. The goal of this non-profit organization is to establish a world-class educational institute in the Shawano [Wisconsin] area.

Isaacson is also president of a subsidiary called Yehud-Monosson USA Inc., which owns gasoline stations and convenience stores. It was seeking Chapter 11 status to reorganize. That was changed to a Chapter 7 proceeding after a finding that Yehud-Monosson had acted in bad faith — permitting a trustee to liquidate assets to pay creditors (the ultimate fulfillment of this group’s sense of persecution and conspiracy).

The papers in the case included such observations as the courts being “composed of a bunch of ignoramus, bigoted Catholic beasts that carry the sword of the church.” Dreher is called a “Catholic Knight Witch Hunter” carrying out the orders of the Vatican.

Netts has indicated that the words are Isaacson’s and that she felt “caught in the crosshairs” between ethics requirements and her client’s demands: “I was trying to approach the broader picture for this client.” She insists that she tried to find a lawyer to replace her, but “no one will touch the case.” That is not a very persuasive argument. No lawyer is required to be the mindless mouthpiece of a client. I have severed representation of clients, including a lawyer, who was acting in a fashion disrespectful to the court or to counsel. Notably, Nett, 36, was raised in the group and says that she became a lawyer because Cohen told her Jesus sent him in a vision telling her to go to law school.

Both women were fined $5000 and the arrest warrant was issued when Isaacson did not appear in court. The judge dropped her earlier demand for letters of apology because she found the women “unrepentant.”

The papers suggested that the case was part of a Catholic conspiracy and that court officials were a collection of “dirty Catholics” bent on their destruction.

Another related site, citing Issacson, proclaims “Catholism is NOT a religion but a business.” The website publishes the response of Isaacson to the Court. Here (Isaacson Response) which includes the following statement:

With respect to the reference to Nancy Dreher, the Catholic judge, that statement is indeed true and accurate. In referring to Nancy Dreher as being a “Catholic judge”, it is not referring to being a member of the Roman Catholic Church. It is referring to a mentality and an adherence to a universal creed of White Supremacy. “Catholic” also refers to membership in the universal Christian faith. All Christians have a creed: a belief in the father, son, and holy ghost. They believe that no one has rights to “heaven” except through their dirty book. They hold the patent to “god” and can go to every nation on earth to force their vomit down everyone’s throat. Nancy Dreher cleverly asserts that she is not “Catholic” in the sense that she claims not to be a member of the Roman Catholic Church, but she cannot deny her “catholic” mentality or catholic Christian origin which dictates a person’s entire life. Only “White Christians” have a right to life, and whether or not any minority has any rights is in the White Christians’ sole discretion. Even now, even though Nancy Dreher was clearly wrong in holding a secret hearing, she still stubbornly asserts she is right. That is the catholic mentality of a Christian. Nancy Dreher certainly is not Hindu, Muslim, Jewish, or Bhuddist [sic]. Nor is she an atheist. If she were an atheist, at least one could expect to see some justice.

Nancy Dreher’s actions speak louder than words as to who she is, what she is, and what she represents.
Thus, every single word in the aforementioned statement is true. No cause for sanction
exists.

In addition to $500 for each infraction, Nett was ordered to take 10 hours of classes in legal ethics over the next year.

Just to make this bizarre picture complete. The judge is not Catholic and, while noting that Isaacson “has absolutely no clue what my religious beliefs are, if any, and it is nobody’s business,” Dreher stated in a footnote that she was “not of any particular faith.”

This is the not first such religiously infused attack on a judge. Convicted church leader Warren Jeffs filed a renewed motion to force the judge to recuse herself. This time, however, the demand came reportedly came from God himself. State District Judge Barbara Walther was told that she should “step away from this abuse of power against a religious and pure faith in the Lord.”

Source: Twin Citiesas first seen on ABA Journal

What is particularly impressive is that 3 million of those viewers were in the last twelve months.

Again, I can only thank you for your friendship and your contributions on our blog. With our emphasis on civil liberties, it is heartening to see so many people from around the world visiting our blog. It is a wonderful reminder that we are not alone in our concern for individual rights and liberty.

Well done, everyone, and congratulations.

We have tried to create something special at this site for the discussion of legal and policy questions in a civil and substantive manner. The success of the blog is due entirely to you. I view posts as merely creating a foundation for broader discussion, much like cases in a law class. It is what you bring to the discussion that makes this blog unique. We will continue to improve the site and I am always interested in suggestions on how to improve the site further. The nice thing about this competition is that it introduces new people to the blog and I hope some of them will decide to stay and contribute to our discussions. More importantly, I needed something to overcome the performance of the Bears this season!

Congratulations to the other winners and competitors in this year’s competition. This competition often allows us to explore the ever widening array of legal blogs and I encourage you to check out some of the other sites among the top 100 blogs.

Thanks again everyone for pushing so hard to help improve the blog and to secure this top spot.

You can vote at this site by clicking on the “opinion” category and we need your vote. A quick registration is needed to prevent cheating in the competition.

Please spread the word and let’s see if we can put the blog over the top. For those who say this war is over, think of how the Germans bombed Pearl Harbor and do the right thing:

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It’s Christmastime again and since my childhood, long ago, the Frank Capra film “It’s A Wonderful Life” has been shown time and again in this season, providing a message of redemption, hope and joy that we associate with this time of year. You all know the plot about selfless George Bailey (James Stewart) a man who has sacrificed his dreams for others and because of his selflessness winds up running the Bailey Building and Loan Association, of Bedford Falls, NY. Because of George this institution has provided home loans for the poor of this rural community and serves as its bank. With the Company on the verge of bankruptcy, through duplicity, George is on the verge of suicide distraught over the losses to those he loves and worried by needs of the average people of his town. You all know this plot and if you don’t its summary is here. http://en.wikipedia.org/wiki/It%27s_a_Wonderful_Life#Plot . I must warn you, perhaps it’s the time of year but I choked up reading the plot, yet again, as I do every time I see this beloved movie.

This introduction has not been made because I’m about to write about banks, or the depredations of the banking industry. Others here and our host have already written extensively on the predatory nature of the banking industry and the harm it has caused to our country. My point of this opening is that we have all grown up with certain mythologies about businesses that provide financial services to the public. This film has had a place in defining that American mythology, in this instance about a bank of sorts, whose leader believes in aiding the community first and profits second. Myths shape our thinking and from my youth I still remember the ad slogan “You have a friend at Chase Manhattan”.

We’ve discovered that banks are anything but our friends. Their bottom line has surpassed service to the point that each customer is looked at as a “cash cow”, to be plundered incessantly with usurious interest and fees for what should be free services. But what about “You’re in Good Hands with Allstate”, “Nationwide Is On Your Side”, or “Like A Good Neighbor State Farm is There”?  Surely the Insurance industry supplies the safety net we want for our homes and cars. Do they? Last week I was sent an article by the Independent Claims Adjuster handling my interminable case for mold damage to my home. He’s helping greatly so this isn’t about me, but the article he sent certainly puts into context all the delays in the process and how property insurance companies are maximizing their profits at the expense of their customers.

The article my claims adjuster sent was “Insurance Claim Delays Deliver Massive Profits To Industry By Shorting Customers” written by Mollie Reilly and Max Rosenthal. It appeared in the December 13th Huffington Post Business section. It describes a change in claims payment system procedures sold to Allstate and other Insurance Companies by the large consulting firm McKinsey and Company, which boosted their profits at claimants expense.  http://www.huffingtonpost.com/2011/12/13/insurance-claim-delays-industry-profits-allstate-mckinsey-company_n_1139102.html

“Unlike many other businesses, the insurance industry is bound by law to act in good faith with its customers. Because of their protective role in the lives of ordinary citizens, insurers have long operated as semi-public trusts. But since the mid-1990s, a new profit-hungry model, combined with weak regulation, has upended that ancient social contract. “Claims have been converted into a money-making process,” said Russ Roberts, a New Mexico-based management consultant and former business professor at Northwestern University who has studied the insurance industry’s evolution from a service business to a profit-driven machine. The change started when consulting giant McKinsey & Company sold Allstate and other leading insurance companies on a new system to boost the bottom line: Rather than adjusting claims the traditional way, which gave claims managers wide latitude to serve customers, insurers embraced a computer-driven method that produced purposefully low offers to claimants.

We have all been led to believe that a property insurer has our interest at heart and wants to make us whole after disaster strikes. While some problems have arisen in disputes where there has been massive damage done by natural disaster, the myths and the ads tell us that these companies are more than our friends, they are our protectors. It seems, as with many myths, this is no longer the case, if it ever has been.

“McKinsey’s strategy put profits above all. One slide in the McKinsey presentation illustrated this philosophy by painting the insurance business as a zero-sum game: “Improving Allstate’s casualty economics will have a negative economic impact on some medical providers, plaintiff attorneys, and claimants. … Allstate gains — others must lose. Allstate has certainly gained: It made $4.6 billion in profits in 2007, double its earnings in the 1990s. The stunning increase, said Russ Roberts, came through “driving down loss values to an average of 30 percent below the actual market cost” — that is, paying dramatically less on claims”.

We see that through delaying payment of claims, paying minimal claim amounts and forcing people already strapped by hardship to take it or sue, “Good Hands” companies like Allstate are making record profits, while some people’s lives are collapsing around them, even though they prudently bought property insurance. While I am not surprised by this, I am outraged. Is every purchase of ours whether product, or service to be based on “caveat emptor”? Is this what those who push so hard to have regulations on businesses stripped working for? Is the complete burden of having to painstakingly investigate every entity we deal with to be laid on our shoulders? Is this the type of society we all want?

“An insurance company can make a lot of money on the small claims,” said Jay Feinman, a professor at Rutgers University School of Law, “because if you save a few dollars on a huge number of claims, it’s worth more than saving a lot of dollars on a very small number of claims.”

“Allstate is the best-known user of the McKinsey model, topping the list of the “Ten Worst Insurance Companies in America” published by the American Association for Justice. But Allstate’s rise in profits has led most of the industry to adopt the same approach. McKinsey has worked with State Farm, another insurance giant, and other companies in redesigning their claims systems. Feinman cautioned in his book “Delay, Deny, Defend” that the two major names “are just the largest players in the industry … [the ones] whose involvement with McKinsey & Company in the transformation of claims is the best documented.”

By using the tactic of “Delay, Deny, Defend” these companies are purposely avoiding paying claims, or paying much less than they should, because they in the end have the upper hand. Imagine, as a case presented in this article describes, losing your home and belongings in a claimable disaster. Most Americans would be totally at a loss about what to do next. Most of us don’t have the wherewithal to sustain a financial disaster like that. That is what this strategy counts on. People are being toyed with at a time of crisis and through that the Insurance Company reaps profits far beyond what their business should entitle them to make.

“Roberts, the management consultant, said that companies like Allstate attempt to pass off claims delays as fluke occurrences. But, he said, they are actually routine and intentional products of the McKinsey system: “The Allstate/McKinsey system for ‘lowballing’ claims payments … is driven by the claims performance management and pay systems from the top to the bottom of the organization.”

Feinman, the Rutgers law professor, also suggested the deck is stacked against individuals who make claims. “You have an accident or a fire in your house. You call up the insurance company. You describe the circumstances. Maybe they send an adjuster out, and they say it’s not covered, or it’s covered but here’s the dollar amount that we’re obligated to pay you,” he said. Most people, Feinman said, do not have the expertise “to know whether or not that’s right.”

What happens to those people with scant resources, with great damages to their home ad belongings? How have the lives of those with these companies coverage been adversely changed by this policy of greed? I think greed is the correct terminology, though to me it also verges on fraud. As a business major in college I was taught that when you supplied a service to someone, the best business practice was to make good on the service you offered. Now of course I graduated in the mid 60’s and as I understand it since Reagan and the 80’s, Business Schools are teaching a revised curriculum that makes the bottom line the only consideration of a business executive.

We have all seen insurance industry sponsored commercials telling us that “insurance fraud” is causing our rates to rise and asking us to pressure our legislators to draft even more severe legislation to combat this evil. Some I’ve seen have even suggested turning in our family and neighbors that we believe are committing insurance fraud “because insurance fraud hurts everyone”. I would submit that the real threat of insurance fraud is coming from the insurance industry itself as it searches for ways not to deliver services they have contracted to provide. Sadly, although both the Federal and the various State governments have agencies to regulate this industry, the regulators seem to have been seduced by the regulated.

“…experts like Feinman argue that insurance regulation has become little more than a fig leaf. State insurance departments are usually understaffed and overwhelmed. And even if they had the legal firepower to contend with giant insurance companies, Feinman said, “the regulators are closer to the industry than they are consumers.” Eleven of the past 15 presidents of the National Association of Insurance Commissioners (NAIC) went on to work for the insurance industry after leaving office, while a 17-year study from two Georgia State University professors found that around half of state-level insurance commissioners did so as well. When combined with penalties that Feinman described as “laughably low” in many states, this close relationship means that regulation does not provide an effective check on insurance companies. And state governments themselves have incentive to place consumers on the backburner. Because insurance taxes are a major source of revenue for the states, said Roberts, insurance oversight commissions are usually more concerned with keeping companies solvent than resolving the problems of policyholders”.

So we see also that government regulation of the Insurance Industry has been ineffective. Some of the reasons give above are a “revolving door” between regulator and industry. Also mentioned is that on State level insurance taxes provide the State with a good deal of revenue. I would also suggest though that the Insurance Industry is the source of a good deal of political campaign funds and their payback is lax oversight. This inevitably leads us to the great debate in America between the “Too Much Government” side and those like me who see a dire need for effective government regulation. I know there are more than a few who read this blog who rail against how government regulation has hurt the “free market”. I would ask them to use the link to the article I’ve posted and mull over if they think this method of doing business by the insurance industry is a fair one. If they agree with me that this is a bad, possibly fraudulent business practice, what then can we as a society do about it, or do they think that it is a matter in which government should not intervene?

We are currently one of the most visited civil liberties blogs in the country. We often conflict with VC on issues like privacy and Supreme Court cases. That ideological difference makes this year’s competition even more intense. You can vote at this site by clicking on the “opinion” category and we need your vote. A quick registration is needed to prevent cheating in the competition.

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Even after hundreds of people have shown to be wrongly convicted by DNA evidence, prosecutors continue to fight efforts of prisoners to test such evidence — even when they are willing to pay for the testing themselves.
In this case, Judge Anderson is accused of knowingly withholding exculpatory evidence that might have avoided an innocent man spending 25 years in jail for killing his wife.

For his part, Judge Anderson is contesting the authority of the court to investigate his work as a prosecutor. After long denying the right to the evidence by Morton, he is now arguing that he also lacks any right to investigate the withholding of the evidence.

Anderson’s bio on the court notes that he was selected as “Prosecutor of the Year” and “Outstanding Prosecutor Upholding Victims’ Rights.”

Every state should guarantee the testing of DNA evidence in major felony cases and allow for private testing in all cases at the cost of the accused. Notably, last year, a Texas state committee looked at the state’s first 39 DNA exonerations and found seven involved evidence suppression or other prosecutorial misconduct.

Source: LA Times as first seen on ABA Journal

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Submitted by Gene Howington, Guest Blogger

Newt Gingrich made statements this weekend that leave little doubt he would drag the already overreaching Office of the President over the threshold of dictatorship.  First, let us be clear about what a dictatorship is:  a dictatorship is autocratic rule, control, or leadership; a form of government in which absolute power is concentrated in a dictator or a small clique; a government organization or group in which absolute power is so concentrated.  Second, let us be clear that such a concentration of power in a single branch of government is clearly unconstitutional under the Separation of Powers doctrine.

The term “Separation of Powers” is widely attributed to political philosopher of the French Enlightenment, Baron de Montesquieu, but in practice the idea goes back to ancient Greece and the Roman Republic.  The idea is that the power of government is not vested in one place to avoid abuses by creating a system of checks and balances.  Therefore, a tripartite form of government is created where (roughly speaking) a legislative branch holds the power to make laws, a judiciary branch holds the power to interpret laws and administer justice, and an executive branch holds the power to enforce laws and administer public affairs.  In America, the powers of the three branches are determined by the Constitution and precedent such as Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803) (which clarifies the power of judicial review).  Judicial review by an independent judiciary free from political considerations is a power not specifically in the Constitution but considered vital by both Montesquieu and Jefferson.  In the Declaration of Independence, one of Jefferson’s specific charges against King George III was that the judiciary wasn’t independent and “made Judges dependent on his will alone.”  This is part and parcel of why our Founders integrated the concept of judicial independence into the Constitution by granting judges life tenure and providing for salary protection.  Judicial independence removes the fear that judges will be punished by Congress or the Executive for using their Constitutionally granted power in exercising their  best judgment to interpret the law.  An independent judiciary is critically important because it provides for continuity, stability, and guarantees that disputes can be resolved fairly and impartially in our legal system, free from political considerations. A judges who is constantly looking over their shoulder out of fear they can or will  be punished for politically unpopular decisions are less likely to be neutral referees in the cases that come before them and more likely to be political pawns.

That is why it was particularly disturbing what Gingrich said this weekend.  In a phone interview with reporters on Saturday, Gingrich said he “pledged to abolish courts and eliminated activist judges he believed were either outside the mainstream or infringing too deeply on the commander in chief’s authority.”  He then doubled down in his attack on the Separation of Powers doctrine Sunday on the CBS news program “Face the Nation”.  When asked by host Bob Scheiffer, “Let me just ask you this. You talk about enforcing it because one of things you say is if you don’t like what a court has done, the congress should subpoena the judge and bring him before congress and hold a congressional hearing. Some people say that’s unconstitutional but I’ll let that go for a minute. I just want to ask you from a practical standpoint, how would you enforce that? Would you send the Capitol police down to arrest him?”  Gingrich responded, “If you had to or you’d instruct the Justice Department to send a U.S. Marshall. Let’s take the case of Judge Biery. I think he should be asked to explain a position that radical. How could he say he’s going to jail the superintendent over the word benediction and invocation? Because before…because then I would encourage impeachment. But before you move to impeachment, you’d like to know why he said it. Now clearly since the congress has the power…”

In a world where the Executive has been claiming ever unitary, and some would say Imperial, powers since the days of Nixon using “executive privilege” as an excuse to avoid judicial oversight in ordering wiretaps, where Bush and Obama administrations have regularly used “national security” as an excuse to impinge on the powers of both the judiciary and the legislative (in various forms well known and discussed in this forum) as well as the Constitutional rights of citizens, Newt has finally and openly brought politicization and naked intimidation of the judiciary into the far Right’s arsenal in their continued attack on the Constitution.  By saying that he as President would have the power to arrest judges he personally and politically disapproved of, Gingrich is embracing the very sort of dictatorial tyranny that Jefferson was addressing in the list of grievances against King George III that Jefferson incorporated into the Declaration of Independence.  That this assertion clearly violates the Separation of Powers doctrine is without question, although I’m sure some will try to rationalize it away. Gingrich’s statements have drawn criticism from both the left and the right.  As  Michael W. McConnell, director of the Constitutional Law Center at Stanford University and a former federal appeals judge appointed by Bush, said, “You would think that this would be a time when they would be defending the independence of the judiciary, not attacking it.  You can’t have it both ways. It can’t be that when conservative Republicans object to the courts, they have the right to replace judges, and when liberal Democrats disapprove of the courts, they don’t. And the constitution is pretty clear that neither side can eliminate judges because they disagree with their decisions.”

What do you think?

Source(s): CBS News – Face the Nation 11/18/11, Huffington Post, Washington Post

~Submitted by Gene Howington, Guest Blogger

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After refuting prior testimony in the case, Amendola responded to skeptical lawyers by saying “I suggest you dial 1-800-REALITY.” They did.

In defense with Amendola, it was a simple and obvious quip. The odds that such an innocuous number would turn out to be a gay-sex line seems pretty remote. At $2.99 a minute, reporters found that they could enjoy “the hottest place for triple-X action.”

Source: NY Daily News

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A scent lineup starts with the collection of scent from a crime scene. Scent samples are also collected from potential suspects. A dog is presented with the crime scene scent and then presented with the scents from the suspects. The dog then communicates the matching scent to its handler. The dog handler then testifies at trial and his testimony has been presented as “scientific identification” in Texas courts.

One such handler is Deputy Keith Pikett of Fort Bend County, Texas. Pickett and his bloodhounds have worked about 2000 cases all around the country, and the Texas Attorney General’s office has recommended his work.

Police detectives would call in Pikett, tell him who they thought was the real suspect, and lo and behold, the scent lineup confirmed the detective’s suspicions. Prosecutors loved him, Pikett would use his dogs to “confirm” what they wanted to know.

According to a special report by the Innocence Project of Texas, Pikett testified that “he had a Bachelor of Science in Chemistry degree from Syracuse University and a Master’s degree in Chemistry from the University of Houston.” However, Pikett never received any degrees from either institution. He repeated the lie about having a master’s degree in chemistry in the case State v. Winston. In that case the Court of Appeals of Texas (14th District) cemented Pikett’s reputation as an expert in scent lineups.

The 2004 murder of Murray Burr rocked the small town of Coldspring, Texas. The local sheriff suspected the Winfrey family and Pikett was called in. Based on scent lineups, Megan Winfrey, then 16 years old, her brother Richard Winfrey Jr., and their father Richard Winfrey Sr. were arrested. Megan and Richard Sr., represented by state-appointed lawyers, were convicted on the basis of a scent lineup done three years after the crime.

At the San Jacinto County trial of Richard Jr., Dallas defense attorney Shirley Baccus-Lobel put on a masterful defense that devastated Pikett’s testimony and obtained a “not guilty” verdict, returned within thirteen minutes.

Baccus-Lobel then turned her attention to the appeal of the father’s case whose conviction had already be upheld by one appellate court. In a unanimous ruling, The Court of Criminal Appeals of Texas reversed the court of appeals and entered a judgement of acquittal for the father. The Court of Criminal Appeals found that scent lineups, standing alone, “is insufficient to establish a person’s guilt beyond a reasonable doubt.”

Megan, now 23, is currently serving the third year of a life sentence. The Court of Criminal Appeals has agreed to review her case.

Pikett, now retired, is facing numerous lawsuits and requests for his services have dried up. Ronald Curtis, who spent months in jail on scent lineup evidence, only to have the charges dropped, said “this man is a fraud.” Jeff Blackburn, general counsel for the Innocence Project of Texas, said “Pikett is not the problem. The problem is the DAs and police agencies who have used him.”

H/T: The Agitator, NY Times, Michael Hall, Houston Chronicle, The Southeast Texas Record, USA Today, Austin American-Statesman.

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As if anxiety over the common risks of surgery weren’t enough, a strange story from Florida points up the dangers of flash fires during routine procedures.  Kim Grice entered North Okaloosa Medical Center Outpatient Surgery Center  in Crestview, Fla. for simple surgery to remove cystic growths from her scalp. After about two hours of surgery, an ambulance pulled up to the clinic and emergency personnel rushed past Grice’s mother, Ann, to transport her 29-year-old daughter to the South Alabama Medical Center due to severe facial burns.

“I am in shock,” Ann Grice said. “This is not what happens with a routine outpatient surgery. She had headaches and the doctor was going to remove three cysts and biopsy them. But something went bad wrong and my daughter is now in a burn unit with burn specialists and I still don’t know what happened. No one will tell me why or how this happened to her.”

Health care experts estimate that 650 flash fires occur in operating rooms around the country every year.  Most patients are left with some scaring and smoke inhalation injuries, but some patients die.

Dr. David Cowles attributes the rise in this type of incident to a “trifecta” of circumstances. Oxygen, alcohol prep, and ignition sources like electro-cautery devices and lasers can combine to produce the disastrous results. The FDA has launched an initiative to prevent surgical fires which the government agency deems highly preventable.

As for Kim Grice, she is less concerned now about what happened than seeing her kids. “I am so ready to see my babies,” she told the local newspaper in a telephone interview Thursday from the South Alabama Medical Center’s burn unit. “But I don’t want them to see me this way.”

Kim may never know exactly what happened as some hospitals can make the legendary silence of the police about police negligence look positively gabby, but the law won’t protect the surgeons or the hospital. Under the common law of most states, prevailing  tort principles won’t tolerate a conspiracy of silence in cases like this.  Kim will likely be able to prove her case  under the doctrine of res ipsa loquitur.

The common law doctrine as applied here allows the jury to infer medical negligence even though a patient is unable to present evidence of just what occurred while under sedation. In Ybarra v. Spangard, 93 Cal.App2d 43 (1949), a patient undergoing an appendectomy  experienced arm and shoulder complications as a result of the surgery, but it could not be determined exactly which member of the surgical team had breached his or her duty. The Court held that the surgical team all breached, because it was certain that at least one of them was the only person who was in exclusive control of the instrumentality of harm. The doctrine only applies when the harm could not have occurred but for the negligence  of someone in the OR.  The Plaintiff must still prove that injury resulted and that the negligence complained of was the legal (lawyers would say the “proximate”) cause of the injury.

Source: msnbc

Mark Esposito, Guest Blogger

Some think  lawyers and judges to be serious folk and devoid of humor as they carry out the public’s business. Here’s some proof to the contrary from Gavel2Gavel.com taken from real case depositions and trial transcripts:

By the Court:  Is there any reason why you couldn’t serve as a juror in this case?

By a Potential Juror:  I don’t want to be away from my job that long.

The Court:  Can’t they do without you at work?

Potential Juror:  Yes, but I don’t want them to know that.

______________________________________________

By Attorney:  Have you ever heard of Sigmund Freud?

By Juror:  Yes.

Attorney:  What have you heard?

Juror:  He’s in Las Vegas.

By the Court:  I think you’re thinking of Siegfried & Roy, aren’t you?

Juror:  That’s what I’m doing.

Attorney:  This guy was a little older than that.

_____________________________________________

By Defendant:  Judge, I want you to appoint me another lawyer.

By the Court:  And why is that?

Defendant:  Because the Public Defender isn’t interested in my case.

The Court (addressing the public defender):  Do you have any comments on the defendant’s motion?

By the Public Defender:  I’m sorry, Your Honor. I wasn’t listening.

_____________________________________________

By Attorney:  What was the first thing your husband said to you when he woke that morning?

By Witness:  He said, “Where am I Cheryl?”

Attorney:  And why did that upset you?

Witness:  My name is Kathy.

____________________________________________

By Attorney:  Are you qualified to give a urine sample?

By Witness:  Yes, I have been since early childhood.

_____________________________________________

By Attorney:  So, you are unconscious, and they pulled you from the bucket. What happened then?

By Witness:  Mr. Stewart gave me artificial insemination — you know, mouth-to-mouth.

______________________________________________

By Attorney:  Doctor, as a result of your examination of the plaintiff, is the young lady pregnant?

By Witness:  The young lady is pregnant — but not as a result of my examination.

_______________________________________________

By Attorney:  Remember all your responses must be oral. OK? Now, what school do you go to?

By Witness:  Oral.

Attorney:  How old are you?

Witness:  Oral.

_______________________________________

By Attorney:  Is your appearance this morning pursuant to a deposition notice which I sent to your attorney?

By Witness:  No — this is how I usually dress when I go to work.

__________________________________________

By Attorney:  You say that the stairs went down to the basement?

By Witness:  Yes.

Attorney:  And these stairs — did they go up also?

__________________________________________

By the Prosecutor:  Did you kill the victim?

By the Defendant:  No, I did not.

Prosecutor:  Do you know what the penalties are for perjury?

Defendant:  Yes, I do. And they’re a hell of a lot better than the penalty for murder.

______________________________________________

The Absentee Witness.  In a criminal case, the defense counsel had just moved for continuance on the grounds that a defense witness was not present in court. The rest follows:

By the Court:  Well why don’t we call the list of witnesses and see who’s here?

[The list of witnesses was called in open court and the supposedly "absent" witness answered "Present"]

By the Defense Attorney:  Your Honor, I move for continuance on the grounds of surprise. He promised me he wouldn’t be here.

Source: Gavel2Gavel.com

~Mark Esposito, Guest Blogger

Sen. Dianne Feinstein (D-Calif.), who chairs the Senate Intelligence Committee, tried to pass an amendment that would have limited it to suspects captured “abroad” — a measure that still raised constitutional and international law problems. However, even that modest amendment failed on a vote of 45 to 55. Here is the voting roster, which includes Democrats Begich (D-AK), Casey (D-PA), Levin (D-MI), Inouye (D-HI), Landrieu (D-LA), Manchin (D-WV), McCaskill (D-MO), Pryor (D-AR), as well as independent Lieberman (ID-CT). A watered down amendment was then passed 99-1 that left the matter (it would appear) to the Administration. The provision merely states that nothing in the provisions could be construed to alter Americans’ legal rights. Since the Senate clearly views citizens are not just subject to indefinite detention but even execution without a trial, the change offers nothing but rhetoric to hide the harsh reality.

Virtually all Democrats and Republicans voted to strip citizens of their rights in a vote of 93-7.

What is fascinating is the Senators insisted on passing the provision despite the fact that the Directors of the FBI and CIA, the secretary of defense, and the director of national intelligence have all opposed it on national security and legal grounds. Nevertheless, people like McCaskill who are running for reelection want to prove that they are tough on terrorism by stripping citizens to the right to basic due process rights. The fact that the Democratic and Republican Senators took this step without even holding a hearing is a testament to the state of civil liberties in the United States.

It is unclear whether the President will have the integrity and courage to carry through on this pledge to veto this pernicious bill. For civil libertarians, we have reached our Alamo moment where the most basic principles of the rule of law are at stake. The Congress has long been indifferent if not hostile to civil liberties, but as discussed in an earlier column (and here), civil liberties has reached one of the lowest ebbs in both politics and policy in this country’s history. Such measures are now met with a gigantic and collective shrug from an indifferent populace.

The national debate has become positively otherworldly for civil libertarians. As the Senate set about rolling back civil liberties, Administration lawyers — CIA counsel Stephen Preston and Pentagon counsel Jeh Johnson — publicly explained to an audience this week that the decision whether to kill a U.S. citizens anywhere and anytime must be left solely to the discretion of the military and intelligence branches. President Obama has supported this view and claims the right to kill any citizen on his unilateral and unchecked executive authority. I discussed this horrific policy in a prior column (and here).

How did we come to this place? Well, it took the joint efforts of both parties and a country that has been lured into a dangerous passivity by years of war rhetoric. We now appear to define ourselves by our lifestyle rather than our rights. Being American appears to be treated as conclusory and self-evident — untethered to our defining principles. So in comes to this. The loss of the most basic right of citizens met not by applause but, even worse, a collective yawn.

Here is the Senate bill: BILLS-112s1867pcs

Source: Newser

We are up against two very popular sites: Ann Althouse and Volokh Conspiracy. Both are conservative legal sites and are highly regarded. The latter is a site founded by UCLA law professor Eugene Volokh and is run by 19 conservative law professors, including my colleague Orin Kerr. While I often disagree with their conclusions, I have always found it very substantive and thought-provoking. Ann Althouse is one of the oldest legal sites with a very large audience placing her in the top three most visited legal sites in the world — a remarkable achievement.

I must confess that maintaining this site and my day job does not leave me much time to visit other sites. However, this competition highlights the remarkable array of top sites available to readers, including those in the opinion category. Other categories include sites that I have always found insightful and provocative like Scotusblog, BLT, Simple Justice, How Appealing, Sentencing Law and Policy, and TaxLaw Prof. I recommend, however, that you look at the other sites — including many appearing for the first time.

Our blog is described as follows:

Maybe it’s our journalism bias, but we like when D.C.-based constitutional scholar Jonathan Turley opines on the news of the day and isn’t always satisfied with the version recounted in media reports. In February, he went straight to the source to tease out the sequence of events that cost an Indiana deputy attorney general his job. Of course, we also get a kick out of the occasional random, off-topic posts, especially the penguin videos he shared after his son Ben pointed them out.

Benjamin was thrilled by the reference to his penguin selection.

This is always a fun competition, win or lose. Last year, the competition turned ugly with a misinformation campaign by a regular from one of the other competing sites (again among the opinion blogs this year) that told pro-gun sites that I am a leading anti-gun advocate — and encouraged all gun owners to vote against our blog in defense of gun ownership. It spoiled an otherwise friendly contest among blogs. All blogs should be rightfully proud of their accomplishments and common purpose — and intense loyalty of their regulars contributors.

Good luck to all of the blogs this year and thank you ABA Journal. Now go and vote!

Of course, weight loss is not one of Miller’s functions as a judge. However, such sentences are rarely about justice as opposed to the jurist. She insists, however, “I do what I do to try to change the person in front of me.” Thus, she views the criminal code as her license for self-improvement lessons — while being filmed for a larger audience. While such efforts may appear harmless, it reflects a trend that is undermining the integrity of our legal system as more and more judges yield to the temptation of television fame. These judges use defendants as effective props in their own entertainment production. In this case, Miller has found a way of merging “The Biggest Loser” with “Judge Judy.”

Source: Yahoo

Submitted by: Mike Spindell, guest blogger

America has the world’s highest rate of incarceration, currently 738 per 100,000. Our nearest competitor for this dubious distinction is the Russian Federation with 607 and Cuba with 487. “The US incarcerates at a rate 4 to 7 times higher than other western nations such as the United Kingdom, France, Italy, and Germany and up to 32 times higher than nations with the lowest rates such as Nepal, Nigeria, and India.”

 http://www.nccd-crc.org/nccd/pubs/2006nov_factsheet_incarceration.pdf                                                                                                                                           Despite possible protestations that this is because we have the best law enforcement, my sense is that the reasons lie more in the system, than those who enforce it. No one ever lost an election in America because of the perception they “were tough on crime”.

“Race: Black males continue to be incarcerated at an extraordinary rate. Black males make up 35.4 percent of the jail and prison population — even though they make up less than 10 percent of the overall U.S population. Four percent of U.S. black males were in jail or prison last year, compared to 1.7 percent of Hispanic males and .7 percent of white males. In other words, black males were locked up at almost six times the rate of their white counterparts.”        http://www.nccd-crc.org/nccd/pubs/2006nov_factsheet_incarceration.pdf

Despite possible protestations that this is because we have the best law enforcement, my sense is that the reasons lie more in the system, than those who enforce it. No one ever lost an election in America because of the perception they “were tough on crime”. “Race: Black males continue to be incarcerated at an extraordinary rate. Black males make up 35.4 percent of the jail and prison population — even though they make up less than 10 percent of the overall U.S population. Four percent of U.S. black males were in jail or prison last year, compared to 1.7 percent of Hispanic males and .7 percent of white males. In other words, black males were locked up at almost six times the rate of their white counterparts.”      

http://www.laprogressive.com/law-and-the-justice-system/boiling-hot-mad/.html

These two sets of statistics when viewed together tell a terrible tale of how racial oppression still exists in this country despite our Black President and Black Attorney General. This Administration hasn’t caused of this problem, but they  don’t seem to have made any progress dealing with it. We do know that there has been a widespread effort to play down the racial division that continues to plague this country. This continues despite Civil Rights Laws, Martin Luther King’s Birthday and TV beer commercials that always include at least one black male friend enjoying the camaraderie. Clearly there is a disconnect between how we Americans want to see ourselves and the reality for many Black males. I’m focusing on the problem of black males in this piece, rather than the general oppression of Black people, because the effect of this process is a function of the general racist climate of this country and is a major contributor to the continuance of this oppression. There have often been discussions on this blog about the devastating effects of the “War on Drugs” and this quote is illustrative of the tenor of theses discussions. “Nationwide, black males convicted of drug felonies in state courts are sentenced to prison 52 percent of the time, while white males are sentenced to prison only 34 percent of the time. The ratio for women is similar – 41 percent of black female felony drug offenders are sentenced to  prison, as compared to 24 percent of white females. With respect to violent offenses, 74 percent of  black male convicted felons serve prison time, as opposed to only 60 percent of white male convicted felons. With respect to all felonies, 58 percent of black male convicted felons, as opposed to 45 percent of white men, serve prison sentences”.                                                                                                                                                                                    http://www.civilrights.org/publications/justice-on-trial sentencing.html                                                                     

It is clear to me that racism exists today in America, despite supposed gains and that this disparity in the treatment of race is not only devastating to Black people, but its continuance is disastrous for our entire society. The degeneration of our political system during the last five decades may not be solely due to racial prejudice, but those who have helped bring it about certainly have used racism to empower their viewpoints, even as their rhetoric has shifted from overt to covert. I’m moved to write this because I believe that unless this problem becomes accepted in our public consciousness, there will be no escape from the downward trend of our nation towards political and economic disaster.

I’ve presented enough evidence of the racialist tendency of our system and the reader either will accept what it suggests, or substitute their own pre-judgments of what these statistics mean. My discussion focuses on how this reality impacts upon Black people in America and thus impacts us all, despite our race and/or ethnicity. What set me off thinking about this was a TV Program called “Our America” with Lisa Ling. The episode was entitled “The Incarceration Generation”.      http://www.oprah.com/own-our-america-lisa-ling/our-america-video.html

Personally, this episode brought up an admixture of tears and anger as I watched. It showed the life arcs of some Black males about to be released from prison, the effects on their families of their incarceration and then by their release. The premise, which I endorse, is that this generation of jailed Black men will, and has already impacted on the coming generation of Black men. The message was we must somehow stop this cycle, but the solution to stopping the cycle is not clear macro-cosmically and too slow if change is measured person by person.

As much as I’m prone to pontification, I really can see only one way that this continued racism is ever going to change. To the possible delight of our more conservative and/or libertarian commenter’s, I don’t believe that the first step towards this change would benefit from government intervention via legislation or fiat. While the original issue decided in “Brown vs. Board of Education“, that Blacks and Whites were receiving unequal schooling due to segregation and unequal funding, the general judicial remedy which became School Busing was not only in hindsight a failure, but actually increased tension between races and diminished White support for Civil Rights. It was a decision that tried to solve the problem cheaply, rather than first ensuring that the funding for Black and White (indeed all) schoolchildren was equivalent. How much more elegant to have hoisted the segregationists on their own petard of “separate but equal”, than to have demanded and overseen that they indeed provided equal funding

and support to Black schools. I understand that this was not the remedy being requested in this suit, but looking back it might have been a far more effective strategy. All of the gains in White sympathy for the struggle of Black people for their Constitutional freedom, were negated when the sad results of hundreds of years of slavery was dumped upon the educational systems specifically of the working classes. It resulted in the “Southern Strategy” that got Richard Nixon elected, using code words in place of outright racist rhetoric. Fighting crime became the code for cracking down on Blacks and the upward spiral of the incarceration of Americans began with the inception of the ridiculous “War on Drugs”. When people are steeped in false, bigoted notions of the “other”,  reinforced by a corporate media that finds sensationalizing crime garners profits, minds won’t be changed by legislation.

Certainly, steps must be taken to end the “War on Drugs”, to deal with racist law enforcement issues and to ensure that each American, regardless of skin color and/or ethnicity, is afforded equal rights under our Constitution. But first, before any palliatives are presented by our politicians, the problem of America’s continuing racism and its disproportionate effect on Black males must be brought into the open, discussed and hopefully acknowledged. Without that nothing changes since racism cannot be obliterated by enforcement, it merely morphs underground where it nevertheless festers. It is preferable to directly know ones’ enemies by their words, than to have those beliefs covered up.

Among the great ironies of modern America is how bigots have learned to couch their bigotry in terms that are inherently dishonest, yet provide them verbal cover when challenged. At times, among the less controlled public voices like Limbaugh or Beck it, their bigotry comes through, but even then they will cry foul if they are called on it and pretend that charging them with bigotry is absurd and bigoted in itself. When people are accused of “playing the race card”, the accuser is probably racist, knowingly or unknowingly. I think that many refuse to personally acknowledge their own bigotry, knowing rationally it is wrong, yet they find comfort and cover in the hypocrisy of code words and denial, from even themselves.

The other effect of incarceration of Black men disproportionately, is that it then becomes extremely difficult to obtain jobs after their release. As one man put it on the Lisa Ling show “Would you hire a former felon?”. We’ve set up a system where recidivism is the norm for all prisoners and this is mainly because after serving ones sentence, there are far less opportunities to find gainful employment. I know this from personal experience since my father served time for a “white collar” crime before my birth and his whole working/economic life was affected until his death 20 years later. He was White, had a massive vocabulary and a dynamic personality. He could never get credit and a family member had to co-sign in order to get a mortgage for our house. My father earned a good living as a car salesman, but his many attempts at starting his own business was affected by an inability to obtain adequate financing due to his prior incarceration. My father had many advantages over many black men with criminal histories, but the primary one was his skin color

When you perpetuate a system that incarcerates such a large swath of the Black male population, sentences them disproportionately to other racial/ethnic groups and prevents them from going straight after they’ve served their time, you create instability and chaos within the Black community. The evil history of slavery and racism remains with us today. Until we acknowledge the reality of how it perpetuates itself, it will never cease and our country will continue its’ downward spiral of economic disparity and debilitating racial/ethnic tension.

Henry F. Schuelke III believes that it is necessary for Justice officials to be formally ordered to act in a lawful and ethical matter for there to be a basis for criminal contempt. He basically blames Sullivan for never explicitly demanding that the government comply with legal and ethical rules in turning over exculpatory evidence in the political corruption case. Judge Sullivan offered a rather obvious, and one would think sufficient, reason for not issuing such an order: “Because the court accepted the prosecutors’ repeated assertions that they were complying with their obligations and proceeding in good faith, the court did not issue a clear and unequivocal order directing the attorneys to follow the law.” I have been laboring under the same illusion that we were all subject to legal and ethical rule without a formal order from the court. While there is certainly room to debate whether criminal sanctions should apply, this is a rather shocking reason.

Criminal contempt charges against the prosecutors were not called for, Schuelke found, because Sullivan never explicitly demanded, in a court order, that the government comply with their legal and ethical obligations concerning the revelation of exculpatory evidence to those defending the Republican senator from Alaska in the political corruption case.

“Because the court accepted the prosecutors’ repeated assertions that they were complying with their obligations and proceeding in good faith, the court did not issue a clear and unequivocal order directing the attorneys to follow the law,” Sullivan wrote, explaining his rationale for not explicitly ordering the government to provide exculpatory evidence to the defense.

Schuelke a former Justice official who served for seven years as an Assistant United States Attorney for the District of Columbia, including three years as Executive Assistant United States Attorney.

The report will be made public after the Justice Department reviews it. However, the premise of the report is an outrage and should shock the conscience of every lawyer. It would suggest that Justice Department lawyers can act in flagrant violation of ethical and legal rules absent an order directed at them by the court and that courts must now issue such orders to every attorney if they want to enforce basic rules of practice and ethics.

So, these lawyers will not be held in contempt despite the finding (as detailed in the order below) that the investigation showed a case “permeated by the systematic concealment of significant exculpatory evidence which would have independently corroborated his defense and his testimony, and seriously damaged the testimony and credibility of the government’s key witness.”

The criminal conduct provision does not speak to such requirements:

TITLE 18. CRIMES AND CRIMINAL PROCEDURE

18 USCS § 401

§ 401. Power of court

A court of the United States shall have power to punish by fine or imprisonment, or both, at its discretion, such contempt of its authority, and none other, as–
(1) Misbehavior of any person in its presence or so near thereto as to obstruct the administration of justice;
(2) Misbehavior of any of its officers in their official transactions;
(3) Disobedience or resistance to its lawful writ, process, order, rule, decree, or command.

In Cooke v. United States, 267 U.S. 517, 534 (1925), the Supreme Court reviewed a criminal contempt sanction for a lawyer who sent a “contemptuous” letter to a federal district judge. The Court affirmed the power of the courts to summarily find an individual guilty of criminal contempt if the misconduct at issue occurs “directly under the eye or within the view of the court” where the court may proceed “upon its own knowledge of the facts, without further proof, without issue or trial, and without hearing an explanation of the motives of the offender.” Otherwise, the Court mandated that due process rights were required for a full hearing on the basis for the charge. Here, the investigation appears to confirm the knowing concealment of evidence from both the defendant and the Court. Thus, recently a criminal contempt sanction against a private attorney was upheld for simply using a vulgarity in court, but the systemic concealment of evidence to deprive a person of his rights is viewed as outside the rules unless they are ordered to act ethically. See In Re Sealed Case, 627 F.3d 1235 (D.C. Cir. 2010).

For the record, I am co-lead counsel in the World Bank case (Chang) which involves allegation of the concealment and destruction of evidence by the District of Columbia.

Here is the order: sullivanordernov21

Source: ABA Journal

This is the second time we will be doing the panel, which was held at last ABA Conference and brought back for a return performance. David, Kessler, and I will start with brief statements before moving directly to questions.

Here are the times:

Eastern: 1:00 PM-2:30 PM
Central : 12:00 PM-1:30 PM
Mountain: 11:00 AM-12:30 PM
Pacific: 10:00 AM-11:30 AM

CLE Course Credit
The will seek 1.5 hours of CLE credit in 60-minute-hour states and 1.8 hours of CLE credit in 50-minute-hour-states.

ABA live webinars and teleconferences ordinarily receive CLE credit in:
AL, AK, AR, AZ, CA, CO, DE, FL, GA, GU, HI, IA, ID, IL, KY, LA, ME, MI, MN, MO, MT, NH, NM, NY, NC, ND, OK, OR, RI, SC, TN, TX, UT, VA, VI, VT, WA, WI, WV, and WY.

The following states do not accredit ABA live webinars and teleconferences:
IN, KS, NE, NJ, OH, and PA.

Submitted by Mike Spindell, Guest Blogger

“The more I think about it, Old Billy was right
Let’s kill all the lawyers, kill ‘em tonight.”

I have always felt positive about the Constitution, lawyers and the legal profession. To have a democratic society one needs a system of laws and legal technicians to judge, uphold and defend those laws. Ostensibly, most people would view a society without laws as frightening and dangerous. Yet ever since our country’s founding  an undercurrent of distrust and dislike of has existed towards  those in the legal profession. What is the basis of this dichotomy and why is a dislike and distrust of lawyers so prevalent today in America? As a part of my answer to this we must go back to the first line of the quote from the song. What was meant by “old Billy” was William Shakespeare, where the original quote came from. Is this hatred of lawyers an old theme going back to Elizabethan England?

“Dick the butcher: The first thing we do, let’s kill all the lawyers.
Cade: Nay, that I mean to do.
Henry The Sixth, Part 2 Act 4, scene 2, 71–78.”

This is actually a case of artistic license on Don Henley’s part. In the context of the play the line was spoken and replied to by rebels, who wanted to overthrow the government and institute tyranny. To kill all the lawyers was to ensure that no one could challenge the legitimacy and rule of the rebels. This is discussed in detail in the link below:

http://blogs.law.harvard.edu/ethicalesq/shakespeare-and-lawyers/

I believe that the hatred of the Law and Lawyers stems from a persistent strain of thought running through American politics, that predates the Revolution. The American Revolution was not an uprising that included all  colonists. A sizable minority called “Lobsterbacks” remained loyal to England and King George. After the revolution this large minority did not disappear, but manifested itself in a distrust of the Constitutional freedoms and a longing for a more authoritarian form of government. As we can remember from American History classes many urged George Washington to accept the title of King. What is a yearning for Kingship, if not the yearning for an authoritarian “father figure” providing order to our lives?

This yearning for authoritarian rule is one that I think is somewhat universal in humanity and if so explains why many nations choose a ruling father figure, even by electoral vote. My thought is that there are two distinct strains of motivation  comprising the  individuals that yearn for authoritarian rule. The first is by those who are economically advantaged and see themselves as the “kingmakers” and the aristocracy around the king. Authoritarian rule benefits them because it reduces threats to their status, wealth and power, by ensuring that the majority of people are kept in their place in the societal pecking order. This engenders a need for an authoritarian legal system, with draconian punishments to keep people in line. Even in such a system a legally trained mind, with a highly developed conscience, will try to find exceptions within the law to represent a client. It is a sad truth of history that many times these elite authoritarians find that once they’ve installed their “Leader”, he turns on them and they too find themselves laid low. This happened in NAZI Germany where many industrialists gave financial support for Hitler’s rise to power. One of the greatest movies I’ve ever seen “The Damned” by Luchino Visconti, 1969: http://en.wikipedia.org/wiki/The_Damned_(1969_film)

The second, far larger group enamored of authoritarian rule, are people who I think are emotionally attracted to being told what to do. In essence their psychological makeup is one of conformity to strictly enforced norms. My notion is that this could be genetically influenced and there have been studies with infants at Harvard that find that as early as six months children show predispositions to certain behaviors affecting perceived risks. The studies involved whether an infant would trust its own inclination, or merely respond to its mothers call. Given my own wilfulness as a child and the dangers it put me in, perhaps the ability to listen to authority was initially a genetic advantage. It is my observation that many of us humans are averse to thinking for ourselves and would prefer having decisions made for us. Other studies have shown that people perceive the President as a father figure and are attracted to those candidates that at least outwardly conform to the stereotype. Ronald Reagan anyone?

What has this to do with distrust and hatred of lawyers? I believe that it has everything to do with it. Courageous lawyers upset the status quo and disappoint the majority’s wishes. When I was about twelve I read “Clarence Darrow for the Defense” a biography by Irving Stone. Darrow then became one of my lifelong heroes and I think among the greatest of American lawyers. http://en.wikipedia.org/wiki/Clarence_Darrow . There are other heroes I’ve had who were also lawyers. Joseph Welsch, from the Army/McCarthy Hearings; Thurgood Marshall; Benjamin Hooks; Daniel Webster; Abe Lincoln; John Adams; William Kuntzler; Paul Robeson; and Jonathan Turley to name just a few. The common theme among uniting these lawyers were they spoke truth to power, despite government authority and the majority‘s will. The lawyer can be one of the bastions of maintaining freedom in our society and defending unpopular causes.

It is in defense of unpopular, though just, causes where they draw the most animus. The battles fought are usually against the wealthy and/or entrenched power bases, who have stirred up the peoples wrath through propaganda and appeals to our baser selves. Civil Rights, the Labor Movement, Abortion Rights, Gay Rights, to mention a few issues were (and still are) all unpopular causes fought in the courtroom by lawyers reviled for their success. If you come from an authoritarian mindset, or if your oxen are being gored, of course you despise the people who champion a cause and think them base..

Then we have cases like OJ, Casey Anthony, Phil Spector and Sam Sheppard. The public overwhelmingly believed these people guilty and when their defense attorney’s got them off, the public’s anger vented on these attorney’s who “suborned” justice. Overlooked is that we have a legal system that goes back essentially to the Magna Carta. It is a system that has evolved into the belief that a person’s guilt must be proven beyond a reasonable doubt. While it can never guarantee that the outcome will satisfy public demand, weren’t all of these people entitled to a fair trial? If they weren’t than what stops government officials from arbitrarily punishing whoever draws their wrath?

Without our system of law we have no freedom. All of us are subject to the arbitrary whims of those with might, or wealth. Our lives become a lot more frightening and our economic status more insecure. A good legal system balances and adds stability to a society and we weaken it at our peril. I write this with full knowledge of the problems that our legal system has and the understanding that only a minority of the legal profession actually defend our rights selflessly. Indeed, the majority of lawyers are less than noble in their professional aims, but most with a love of the law and the desire to practice it ethically. Rather than kill all the lawyers from my perspective I think we should do all we can to praise, foster and uplift this profession because its proper practice protects us all from tyranny and exploitation.

My view of course is not the only view and this article linked below has a different, yet meritorious take on the reasoning  why people feel this way: http://randazza.wordpress.com/2010/04/02/why-people-hate-lawyers-an-overview/

I wrote this as a personal perspective and as such some may find fault with the evidence I’ve presented. My intent, however, was personal, not evidentiary and I seek to merely explain my personal respect for lawyers, the Law and the Constitution. I hope to elicit your critiques and opinions about my perception that lawyers are generally now held in low esteem by many of the people. Do you think this is so and if you do, do you think this  low esteem is merited and why?

Mark is counsel for Sheila Womack, 29, is an office assistant who claimed she suffered a head injury when Jerrene Yeoman made an improper left turn and their cars collided. The case involved the notable twist that Yeoman “torpedoed her own personal injury defense with her bankruptcy filings” and now faces a $4 million judgment secured by Mark and his co-counsel.

Richmond Circuit Judge Margaret P. Spencer found Yeoman took an inconsistent position when she found that Yeoman signed bankruptcy forms, listing the personal injury claim as an undisputed debt. With the bankruptcy court, she included the $5 million claim in three separate listings as undisputed. Mark noted that the filings were made under oath and thus were inconsistent legal positions — a clever and ultimately successful tact. This was a reaffirmation of the approbating and reprobating doctrine.

The doctrine comes from the maxim quod approbo non reprobo “that which I approve, I cannot disapprove,” often used in will cases. For example, in a will a person cannot “approbate” by accepting a benefit while at the same time “reprobate” by denying the effect of its other terms. This principle is also known as the equitable doctrine of election.

Congratulations to Mark and his law firm in the case. We have also begun a review of all of our blog entries to identify any inconsistent statements that Mark could cite in the future.

Source: Va Lawyer’s Weekly

Pursuant to 28 USC 455, a Supreme Court justice must recuse herself from “any proceeding in which [her] impartiality might reasonably be questioned.” Recusal is also required where a justice has “expressed an opinion concerning the merits of the particular case in controversy” while he “served in governmental employment.”

It would expected that the Administration’s top litigator in the Supreme Court would have been consulted on the Act and its constitutionality. While the Solicitor General only argues in the final stage of litigation before the Supreme Court, it is common for her office to be consulted with as part of a comprehensive strategy in a high-profile case.

However, little is known about Kagan’s actual involvement and she has denied expressing an opinion on the constitutionality of the law. During her confirmation, she was expressly asked about her involvement in the legislation:

“Have you ever been asked about your opinion regarding the underlying legal or constitutional issues related to any proposed health care legislation, including but not limited to Pub. L. No. 111-148, or the underlying legal or constitutional issues related to potential litigation resulting from such legislation?”

“Have you ever offered any views or comments regarding the underlying legal or constitutional issues related to any proposed health care legislation, including but not limited to Pub. L. No. 111-148, or the underlying legal or constitutional issues related to potential litigation resulting from such legislation?”

She answered no to both questions. I was frankly surprised that she never discussed the “underlying legal or constitutional issues” but she has expressly denied such involvement.

E-mails have emerged between Kagan and Harvard Professor Laurence Tribe where Kagan discusses the legislation in passing and expressly support. In discovery obtaining by Judicial Watch, then-Solicitor General Elena Kagan writes to Tribe, who was serving in the Justice Department, “I hear they have the votes, Larry!! Simply amazing.” Tribe started the email exchange with a message with a subject line of “fingers and toes crossed today!” However, the primary reason for the message appears to be a planned dinner. He wrote: “So health care is basically done! emarkable. And with the Stupak group accepting the magic of what amounts to a signing statement on steroids!”

Of greater concern, in my view, is a separate email exchange on March 21, 2010 (the day PPACA was passing the House) with her top deputy Neal Katyal. Associate Attorney General Tom Perrelli had send a message to a group of DOJ lawyers, including Katyal, notifying them that there was going to be a meeting the next day to plan for the litigation expected to challenge PPACA. Kagan was included in the mailing, which would seem to confirm her offices involvement in the litigation planning. As head of that office, it raises a serious appearance problem and may reflect additional conversations that could have occurred between her and Katyal or other lawyers in effort. This was already one of the top priorities of the Administration and one would expect a comprehensive team at Justice Department that would include the Solicitor General’s office.

However, the Administration appears to have anticipated the issue and, according to Attorney General Eric Holder, carefully separated Kagan from any discussions of the health care law:

“I can tell you that certainly, one of things that we did while she was solicitor general was physically-physically–literally move her out of the room whenever a conversation came up about the health care reform legislation . . . I can remember specific instances in my conference room when we were going to discuss that topic. We asked Justice Kagan to leave and she did.”

That effort may be successful, though it also increases the appearance of selecting someone in part to help guarantee a vote on the critical legislative measure for the Administration. Few would doubt that Kagan would vote for the legislation and the effort leaves the appearance of a pocket vote for the President. For full disclosure, I questioned Kagan’s selection given the many more distinguished judges and academics. Kagan had little writing and little litigation distinguishing her. What she did have was strong connections in the Administration and a reliable vote potential.

Kagan has previously recused herself from cases, but nothing as important and with such a potentially determinative impact as the health care litigation. In October 2010, Kagan recused herself from half of the cases pending before the Court. Given the obvious effort by everyone to separate Kagan from these discussions, she may have avoided a conflict, but the involvement of her office still presents a serious appearance question. The emails with Tribe also suggest that she may have been a bit lax at times in dealing with the legislation.

Once again, this controversy highlights the need for enforceable ethical standards for the Court and greater clarity on conditions for mandatory recusal.

Source: IBTimes

The sexual harassment controversy currently surrounding the Herman Cain campaign has produced the expected responses.  The candidate has vigorously denied all of the accusations and his defenders have hurled  a few of their own, alternately blaming both Republican rivals and Democrats for the scandal and questioning the motives and veracity of the alleged victims.  The accounts of the women who have come forward have been truly disturbing, but what is almost as disturbing are the public statements of Mr. Cain’s newly retained attorney, Lin Wood.

Appearing at a press conference with Mr. Cain in Phoenix this past week, Mr. Wood, a nationally known lawyer with particular expertise in libel law, stated “I’m not here to scare anyone off. However, they should think twice, anyway.” Mr. Wood characterized the harassment claims as “false” and criticized the fact that Sharon Bialek ”chose to come forward for whatever reason after 14 years, when recollections have failed and witnesses cannot be located.” Mr. Wood added that should the women proceed with a joint press conference, “I’ll be watching carefully.”

Supporters of Mr. Cain no doubt will argue that Mr. Wood’s statements were perfectly reasonable examples of proactive advocacy. I suggest that they were much more than that.

In 2010, 11,717 charges of sexual harassment against employers were filed with the EEOC. That number represents only 11.7% of the 99,922 claims filed last year. But it is significant because we know that most cases of sexual harassment are never reported. Indeed, various studies have concluded that only 6% to 12% of those women who have been victims report it to their superiors, and an even smaller percentage pursue formal claims. The reason, of course, is fear. An accusation of sexual harassment can result in the loss of one’s job or career prospects. It can submit the accuser to embarrassment and humiliation. If the accused is a powerful or popular figure, the victim might not be believed and the harassment may go unpunished.

Experience teaches us that victims of sexual harassment are frequently treated like victims of rape; there are always those who will conclude that a victim brought it on herself, that she was at fault for enticing, or sending mixed signals to, the accused, that she “asked for it.” In the case of Mr. Cain, it has been suggested that the alleged victims are seeking publicity or money, that they are simply attempting to destroy Mr. Cain’s candidacy or that they have mental or emotional issues. One female reporter on a cable news network even derided Ms. Bialek’s makeup. There are many reasons to explain why someone has maintained her silence for 14 years.

Context means everything, and Mr. Wood’s comments can only be understood from the perspective of women who have tentatively determined to reveal information under circumstances which they know can bring harm to themselves and their loved ones. When Mr. Wood cautioned them to “think twice” before speaking out, they knew what he meant. Think twice about your career. Think twice about the consequences to your family. Think twice about taking on someone with millions of supporters and millions of dollars and a lawyer who has already told the world that you are a liar. Think twice about how much you are willing to sacrifice for what you believe to be the truth.

As a lawyer who has tried many cases, I understand that the line between legitimate advocacy and intimidation is not always brightly drawn. In this instance, however, my view is that Mr. Wood has crossed it.

Sources: The Atlanta Journal-Constitution, November 8, 2011; “Sex Discrimination and Sexual Harassment,” www.catalyst.org (July, 2011); “Sexual Harassment in the Workplace,” National Women’s Law Center (July 31, 2000).

The original story by the ABA Journal put the results of the survey in the second full graph as follows:

Asked whether they preferred to work for male or female partners or associates, 35 percent preferred working for male partners, 15 percent preferred working for male associates, 3 percent preferred working for female associates, none preferred working for female partners, and 47 percent had no opinion.

It also gave Williams and others extensive coverage in explaining the results. Many female secretaries are quoted in the study as explaining their preference for male partners — objecting to how they are treated by some female partners.

The Journal included a full presentation of the views of Williams and others that the survey reflected not a gender difference how partners related to staff but the sexist attitudes of the secretaries. I have read the articles and the underlying research conclusions and I fail to see the basis for the criticism of the ABA Journal. This is a journalistic enterprise and ran a headline isolating the most notable conclusion of the survey. It is very interesting to have a survey where not a single secretary would express a preference for a female partner. Reporter Debra Cassens Weiss then gave the view of feminist scholars that this was the result not of the difference of the partners in their approaches but the distorted view of the secretaries. That is an interesting story presented in a fair way. The Journal then gave a huge follow up story below repeating and expanding on the view of these scholars.

The survey sought to explore gender difference in the workforce between partners and secretaries. If the results came out that most preferred women partners, would the same scholars have argued that that view was due to the gender bias of the secretaries or would it have been explained in a different approach of female partners? Instead, some of the critics refuse to consider if there is a difference in approach among partners and instead insist that it is gender indoctrination of the se secretaries.

I have little expertise in such gender studies and I would expect some results to be shaped by sexist views given the overall problem of sexism in society. However, I do have some experience in legal journalism. In my view, to attack the ABA Journal and demand retraction of the story is unfounded. Debra Cassens Weiss ran with the most striking aspect of the story and then gave the response to that fact — and the other findings are included at the top of the story. The reaction to her piece undermines the credibility of the use and ultimate purpose of the survey.

What do you think?

Source: ABA Journal

Richmond, Va photographer, Ian Graham, must be wondering where he was this past Monday as he was arrested by local police for trespassing on a city street. Graham, who was photographing police arresting demonstrators in the Occupy Richmond protest, was told by police he was trespassing as he politely stood near a public crosswalk  recording the goings on with his camera. Police claim they told Graham he could take photos but only in the designated “media area,” which was, of course, far from the scene of the arrests.

Graham was detained for the apparent ”crime” of walking and photographing police from a public street. It’s more likely he was arrested in retaliation for questioning police about why he was unable to traverse the street and perform an obviously legal action. He was held at the Public Safety Building for about thirty minutes and then released on a summons. 

Eight other people were arrested during the 1:00 a.m raid of the Occupy Richmond encampment. Camping out in solidary with the Occupy Wall Street movement since October 15th, the demonstrators were told they were now trespassing in violation of a city ordinance prohibiting them from being present in the public park after dark. Boy, that took almost three weeks for police to figure out.

The Virginia ACLU is defending Graham who is part owner of RVA Magazine which publishes weekly and is distributed free of charge — or at least at no cost. For his part Graham is nonplussed by the misdemeanor charges. “The freedom of the press is not constrained to a box or some zone that the police inhabit,” he said. He added, “We as the press have the right and responsibility to cover the police during whatever they are doing on public property.”

The arrest occurred at Kanawha Plaza in the heart of Richmond’s financial district. That’s not particularly important until you remember that just a few blocks away down Broad Street is venerable St. John’s Church. There in March of 1775, another Virginian expressed much the same sentiment as Graham’s. I ‘m a little fuzzy on the name – Henry sounds right for the last name – but I’m in good company with the guardians of the peace here in Richmond. They don’t remember him at all.

Source: Richmond Times-Dispatch

~Mark Esposito, Guest Blogger

The family judge is shown on the tape beating her with a belt until she grabs it. He then returns to resume the beating with a new belt and is recorded saying “Bend over the f***ing bed . . . Lay down or I’ll spank you in the f***ing face.”

The mother is also heard saying “You turn over like a 16-year-old and take it like a grown woman.”

The judge then adds “If I hear so much as you raising your f***ing voice to me or your mother with the wrong tone or do one little thing or you look at me f***ing wrong, I’m going to wear your f***ing a** out with this belt.”

The judge admits that he is shown beating her with a belt but insists that he did noting wrong: “She’s mad because I’ve ordered her to bring the car back, in a nutshell, but yeah that’s me, I lost my temper.” He added “It was a long time ago… I really don’t want to get into this right now because as you can see my life’s been made very difficult over this child. . . In my mind I have not done anything wrong other than discipline my child when she was caught stealing. I did lose my temper, I’ve apologized.. it looks worse than it is.”

Critics have noted that Adams has previously ruled against children alleging abuse by their parents. Last October, Adams said that a child’s statements ‘amounted to no evidence’ despite witnesses and a video in the case as well as the supporting testimony of a child psychologist. He used the occasion to call children “fantasizers.”

Adams remains on the bench pending investigation.

The eight-minute video has been viewed millions of times.

What is interesting is the wife divorced the judge and is now supporting her daughter, saying that the judge was engaged in regular bouts of violence due to his “addiction.” She called it a “family secret.” She divorced him in 2007. Yet, the mother is shown on the video responding to the judge’s demand “Go get the belt. The big one. I’m going to spank her now.”

Local reporters say that a neighbor saw “Adams and his girlfriend packing luggage, a briefcase and rifles into their truck.”

There remains a debate over whether spanking or beating a child is per se abuse. There has been a shift in attitudes from the time when teachers routinely beat children and parents whipped their children. There is no per se rule against spanking but beatings of this savagery would meet most definitions of abuse. Texas defines physical harm as involving “substantial” injury, though it also includes emotional injury:

§ 261.001. DEFINITIONS. In this chapter:
(1) “Abuse” includes the following acts or omissions by a person:
(A) mental or emotional injury to a child that results in an observable and material impairment in the child’s growth, development, or psychological functioning;
(B) causing or permitting the child to be in a situation in which the child sustains a mental or emotional injury that results in an observable and material impairment in the child’s growth, development, or psychological functioning;
(C) physical injury that results in substantial harm to the child, or the genuine threat of substantial harm from physical injury to the child, including an injury that is at variance with the history or explanation given and excluding an accident or reasonable discipline by a parent, guardian, or managing or possessory conservator that does not expose the child to a substantial risk of harm;
(D) failure to make a reasonable effort to prevent an action by another person that results in physical injury that results in substantial harm to the child;
(E) sexual conduct harmful to a child’s mental, emotional, or physical welfare, including conduct that constitutes the offense of indecency with a child under Section 21.11, Penal Code, sexual assault under Section 22.011, Penal Code, or aggravated sexual assault under Section 22.021, Penal Code;
(F) failure to make a reasonable effort to prevent sexual conduct harmful to a child;
(G) compelling or encouraging the child to engage in sexual conduct as defined by Section 43.01, Penal Code;
(H) causing, permitting, encouraging, engaging in, or allowing the photographing, filming, or depicting of the child if the person knew or should have known that the resulting photograph, film, or depiction of the child is obscene as defined by Section 43.21, Penal Code, or pornographic;
(I) the current use by a person of a controlled substance as defined by Chapter 481, Health and Safety Code, in a manner or to the extent that the use results in physical, mental, or emotional injury to a child;
(J) causing, expressly permitting, or encouraging a child to use a controlled substance as defined by Chapter 481, Health and Safety Code; or
(K) causing, permitting, encouraging, engaging in, or allowing a sexual performance by a child as defined by Section 43.25, Penal Code.

The statute would indicate a ten-year statute of limitations for his type of crime:

Except as provided in Article 12.03, felony indictments may be presented within these limits, and not afterward:

(1) no limitation:
(A) murder and manslaughter;

(B) sexual assault, if during the investigation of the offense biological matter is collected and subjected to forensic DNA testing and the testing results show that the matter does not match the victim or any other person whose identity is readily ascertained; or

(C) an offense involving leaving the scene of an accident under Section 550.021, Transportation Code, if the accident resulted in the death of a person;
(2) ten years from the date of the commission of the offense:
(A) theft of any estate, real, personal or mixed, by an executor, administrator, guardian or trustee, with intent to defraud any creditor, heir, legatee, ward, distributee, beneficiary or settlor of a trust interested in such estate;

(B) theft by a public servant of government property over which he exercises control in his official capacity;

(C) forgery or the uttering, using or passing of forged instruments;

(D) injury to a child, elderly individual, or disabled individual punishable as a felony of the first degree under Section 22.04, Penal Code;

(E) sexual assault, except as provided by Subdivision (1) or (5); or

(F) arson;

Based on the video evidence, it is odd that Adams would be left on the bench rather than put on leave pending the outcome of the investigation — particularly after his admission that he is the man shown beating the child.

[UPDATE: Adams has now taken a leave of absence.]

Here is the disturbing YouTube video.

Source: Seattle Pi as first seen on YouTube.

Sunday Moyo, 28, said he paid the prostitute $20, but that the woman had turned into a donkey halfway through intercourse. He was spotted having sex with the animal in his backyard by a passing police unit.

In court, Moyo insisted “Your worship, I only came to know that I was being intimate with a donkey when I got arrested. I had hired a prostitute and paid US$20 for the service at Down Town nightclub, and I don’t know how she then became a donkey.” The court, which broke into laughter, appears to take a “never on Sunday” view of the matter.

It was a perfect modern use of the Bumble defense. If you recall in Oliver Twist (Chapter 51), Mr. Bumble tried to blame his wife but was told that he could not shift responsibility:

“It was all Mrs. Bumble. She would do it,” urged Mr. Bumble, first looking round to ascertain that his partner had left the room.

“That is no excuse,” replied Mr. Brownlow. “You were present on the occasion of the destruction of these trinkets, and indeed are the more guilty of the two; for the law supposes that your wife acts under your direction.”

“If the law supposes that,” said Mr. Bumble,… “the law is a ass—a idiot. If that’s the eye of the law, the law is a bachelor; and the worst I wish the law is that his eye may be opened by experience—by experience.”

In this case, the defense was that not just the law but the victim is an ass.

Source: Huff Post as first seen on Reddit

On Tuesday, Monson, 27, grabbed the pen being used by his defense lawyer, Jesse Cantor of Everett, Wash., and stabbed him in the head during opening statements in Monson’s felony drug trial in Washington. He was wearing an electric stun cuff and officers activated it. (For the record, I am a critic of the use of these stun belts in courts, though it proved useful in this case). He also faces charges for assaulting two corrections officers on two separate occasions at the Snohomish County Jail.”

Snohomish County Superior Court Judge David Kurtz also ordered Monson placed in a special chair with straps for the rest of the trial.

I have serious reservations about Kurtz’s orders. He is certainly on good ground to impose restrictions. However, there is a serious question of Monson’s mental capacity to stand trial. Even if he is found mentally fit to stand trial, the denial of a lawyer is that last thing that you want to do in such a case with a clearly disturbed individual. Pretending that he can represent himself will not make it so. He clearly cannot represent himself and the trial will become an even greater mockery. It is also not clear why, if you are going to restrain him, he also should be denied a lawyer.

I sympathize with the court (and really really sympathize with the lawyers), but this is not the first time such an attack has occurred. My former co-counsel in the Jim Nicholson espionage case, Jonathan Shapiro, was knocked out once by a deranged client in court. These acts result in new criminal charges and restrictions. However, to deny a lawyer is to deny the most basic element of a fair trial.

What do you think?

Source: Herald

Herman Cain has spoken about the allegations, including quoting from his account and suggesting that he merely mentioned that a woman was the same height as his wife. He then suggested that they were hiding behind anonymity — even though their agreement gagged them.

A typical such provisions states: “The terms and conditions of this Agreement are absolutely confidential between the parties and shall not be disclosed to anyone else, except as shall be necessary to effectuate its terms. Any disclosure in violation of this section shall be deemed a material breach of this Agreement.”

Now, their attorney Joel Bennett has said that the Cain interviews with Fox New may have violated the same provision — and thus invalidated the gag on the women. The whole idea of these provisions to prevent either party from “taking a victory lap” or denouncing the other party. They are only enforceable to the extent that your client honors the gag. When confronted with a public allegation, you have to counsel your client on the costs of going public — the chance that the other party will then be free to add details and respond in kind. Such agreements often have not just a confidentiality agreement but a non-disparagement provision.

He certainly appears to have tripped the wire with statements like:

–”I’ve never sexually harassed anyone and I was falsely accused while I was at the National Restaurant Association.”

–”She was in my office one day, and I made a gesture saying – and I was standing close to her – and I made a gesture saying you are the same height as my wife. And I brought my hand up to my chin saying: “My wife comes up to my chin.”

–describing the women as bringing “false accusations.”

Of course, this comes down to the language of the provision. In cases like Hopgood v. Merrill Lynch, 839 F. Supp. 98 (P.R. 1993), the court rejected such a claim because the provision only refers to the “terms” of the settlement and not discussing other aspects.

When a case is settled in litigation, these confidentiality agreement are often incorporated in courts orders, allowing for the court to hold parties or lawyers in contempt for any breach. Baella-Silva v. Hulsey, 454 F.3d 5 (1st Cir. 2006). Thus the typical remedy is found in a breach of contract action as opposed to self-help through counter statements. In agreement like the one in Baella, the provision contains the remedy. In that case, the agreement stated “[c]onfidentiality is the substantial consideration for th[e] compromise” and provides that “[a]ny violation of confidentiality . . . will result in liquidated damages of Fifty Thousand Dollars ($ 50,000.00) to be assessed by this Honorable Court after notice and hearing.”

Absent such a provision or incorporating court order, an aggrieved party will often feel free to public defend themselves in the knowledge that the other party can no longer prevail in a breach claim given their own violations. Even then however it is often important to keep the defense within the scope of the original violation. If you opportunistically go beyond the original violation, you could still find yourself subject to an action for breach.

This issue comes up often with attorneys who are criticized by clients and are able to defend themselves outside the normal limitations of confidentiality for attorney-client relations.

Likewise, employment agreements often include non-disparagement clauses like the one below:

Executive agrees that, during the term of employment and for one year thereafter, executive shall not, in any communications with the press or other media or any customer, client or supplier of company, or any of company affiliates, criticize, ridicule or make any statement which disparages or is derogatory of company or its affiliates or any of their respective directors or senior officers. No directory senior officer of company will, during the same time period, criticize, ridicule or make any statement which disparages or is derogatory of executive.

Here Cain has clearly attacked the veracity of the women and made very concrete (and what the attorney says are misleading) descriptions of the allegations. Of course, there remains the question of who leaked the settlement. That can be a fact that would be the basis for discovery if either party were to sue under the contract.

For their part, the women (or Cain) could also threaten a defamation action. Cain’s statements are not made in filing or in court and are thus not privileged. Conversely, the statements of the lawyer or his clients have been made publicly. It is possible that any party could claim that this ultimately comes down to a difference in opinion as to what constitutes sexual harassment. However, Cain is saying that the statements are are false and made behind the veil of anonymity — suggesting some other than a difference in perspective.

There is also the question of whether Cain should, as a candidate for the highest office, formally waive any confidentiality and allow the women to speak without threat of legal action. After all, he has basically called them either liars or opportunists or both. He has the ability to ungag the women and they can in turn agree that he is not bound by confidentiality in responding.

Source: The Hill

For attorneys or their staff to mock suffering people leaves a stain not just on that firm but on the bar. It is bad enough to see lawyers running these mill operations. However, to profiteer on such mills while mocking those put on the street is truly grotesque. It will be interesting to know what the firms clients — Citigroup, JPMorgan Chase, Bank of America and Wells Fargo — say about counsel who love to dress up as homeless, poor people.

The Amherst, N.Y. law firm is accused of not just mocking poor people but maintaining a “really cavalier attitude” on foreclosures and the interests of the displaced families and individuals. While first attacking the pictures and calling them a smear job, Steven J. Baum later apologized for “poor taste.”

The question is whether such offensive costumes represent bar violations. I think they are protected speech. However, that does not mean that we should not condemn such practices or raise the question of whether these companies should put such sensitive cases in the hands of such insensitive people.

Source: NY Times

Holdings, or ratio decidendi (Latin for “the rationale for the decision), are those parts of a court’s opinion that are binding on lower courts and later courts. This binding is referred to as the doctrine of stare decisis which provides hierarchical (vertical) and temporal (horizontal) continuity throughout the judicial system. Obiter Dicta (Latin for a statement “said in passing”), or dicta, are those parts of a court’s opinion that are not binding on lower courts and later courts. Dicta may suggest an interpretation of the law that may prove useful in future cases.

Distinguishing holdings and dicta is sometimes difficult and in some court opinions, intentionally so. Sub-categories of dicta, such as judicial dicta, and their different levels of authority, make the determination even more perilous. Dissenting opinions are always considered dicta.

Vertical stare decisis refers to the power of higher courts to bind the decisions of lower courts. All courts are bound by vertical precedent to follow the holdings in the decisions of the Supreme Court. Vertical stare decisis is generally considered absolute.

Horizontal stare decisis refers to the power of a court to bind itself. The Supreme Court while not bound by its prior decisions, does give them “substantial weight” in deliberations. There is a strong presumption that prior judicial articulations of the law are correct and generally should be followed. Horizontal stare decisis preserves a stable doctrine and prevents cycling.

While “we hold that …” or “the rule is …” are frequently giveaways to holdings, it is no guarantee in the holdings/dictum debate. In United States v. Rubin (1979), J. Friendly, in a concurring opinion, wrote:

A judge’s power to bind is limited to the issue that is before him; he cannot transmute dictum into decision by waving a wand and uttering the word “hold”.

Consider the example found in Minor v. Happersett (1875), a Supreme Court case dealing with the constitution of the State of Missouri that ordains: “Every male citizen of the United States shall be entitled to vote.” The following passage is from J. Waite’s opinion:

The Constitution does not, in words, say who shall be natural-born citizens. Resort must be had elsewhere to ascertain that. At common-law, with the nomenclature of which the framers of the Constitution were familiar, it was never doubted that all children born in a country of parents who were its citizens became themselves, upon their birth, citizens also. These were natives, or natural-born citizens, as distinguished from aliens or foreigners. Some authorities go further and include as citizens children born within the jurisdiction without reference to the citizenship of their parents. As to this class there have been doubts, but never as to the first. For the purposes of this case it is not necessary to solve these doubts.

Portland Examiner contributor Dianna Cotter claims the reference to the natural-born citizen clause in this passage is part of the holding. The Wikipedia entry correctly identifies this reference as obiter dictum.

H/T: Legal Theory Lexicon, Judith M. Stinson, Michael Abramowicz and Maxwell Stearns, Robert G. Scofield.

This is a disappointing but not unexpected decision. I respect Judge Walton and believe that this is a thoughtful opinion. However, I have to respectfully disagree with his analysis. We stated at the outset that we viewed this as a case that would have to be heard by the D.C. Circuit since there is contrary precedent from higher courts. We even stated that in the complaint (which the court acknowledges). While we believed that there was a basis for the district court to distinguish this case, Judge Walton declined to take that approach.

Notably, the court did not rule on the constitutional questions. Instead, the decision holds that a critical part of the Constitution cannot be effectively enforced in the courts. It is a position that runs contrary to the views of the Framers and certainly these members.

I must strongly disagree with the Court’s statement in a footnote that, because the D.C. Circuit previously ruled against members in an earlier challenge, no further challenges should be made by members who disagree. If that were the standard, many of our most famous cases in history, like Brown v. Board of Education, would never have happened. Changes in precedent are often secured only after years, if not decades, of challenges. These members strongly disagree with the D.C. Circuit case law and the only way to ask the Circuit to reconsider those holdings is to first receive a decision from the district court.

I have started to conferral with the members today despite being out of town in Oklahoma City. We previously stated that this issue might have to be resolved by the D.C. Circuit or ultimately the Supreme Court. We are now discussing whether to take that next step.

Jonathan Turley
Lead Counsel in Kucinich v. Obama

Opinion: Memorandum Opinion 10.20.2011 doc. 14

The meeting shocked the family which had come to London expecting to hear details on the long awaited inquiry. Instead, they were told that Queen’s Counsel Desmond de Silva would review the case.

Finucane’s widow Geraldine cut short the meeting and stormed out, saying that she “felt so angry she could hardly speak.” Supporters were outraged.

Finucane’s son (now a lawyer himself) noted that “five inquiries (into controversial killings) were recommended and promised by the government – the only one that is yet to take place is the inquiry into the murder of my father.”

I recall the murder of Finucane and the disgust of such an act, particularly in front of his children. He was shot fourteen times as he sat at the table eating with family at his Belfast home. Given Hogg’s reckless comments before the murder and prior alleged links in the murder to state security officials, one would think the Cameron would want to finally answer all lingering questions with an independent inquiry. The family and the country deserves nothing less.

Source: CNN

The honorees this year included Chief Justice John Roberts, Associate Justice Anthony Kennedy, ABA President Bill Robinson, Judge Richard Leon, and other Washington figures. This year I was particularly pleased to be honored with one of my colleagues, Sean Murphy, who has been nominated to join the prestigious International Law Commission and has handled an array of important international legal disputes.

I am always touched to hear the Irish accents and stories because they remind me of my father, Jack Turley. Turleys are found in Northern Ireland and the counties Down and Armagh. I hear on occasion from Turleys in Ireland, who have informed me of such tidbits as a Turley who died on the Titantic and other clan lore. I was told that the family motto translates to “Consider the End” — which was described as a somewhat depressing but quintessentially Irish thought.

Much thanks to The Irish Voice and its editor Niall O’Dowd. O’Dowd told a wonderful story about famed Irish lawyer Daniel O’Connell who once took the case of a man accused of stealing shoes. He was so good in court that the jury declared his client not guilty but said he should return the shoes. Now that is an Irish lawyer to be proud of.

To my fellow honorees and the Turley clan, I say Éirinn go Brách.

Jonathan Turley

In one cited incident, he told a client not to hire an attorney because the man had a “sexual torture chamber in his basement.”

Guadagno was charged with disorderly conduct after a sheriff deputy said he was yelling that another attorney was “gay,” a “scumbag” and a “homosexual” and would not stop when told to do so by the deputy. He was sentenced to six months of court supervision and ordered to take an anger management class.

He primarily handles traffic cases, according to the article below.

Such sanctions are not unique. In 2008, an attorney was suspended in part for using such comments as “Louisiana Department of Injustice,” “spear chucker,” “human scum,” “goon squad” and “vermin.”

Source: Chicago Tribune as first seen on ABA Journal

The complaint accuses attorneys Clifford J. Zatz, William L. Anderson, Kirsten L. Nathanson, and Monica M. Welt of Crowell & Moring, LLP, of violating Rule of Professional Conduct 7.1(a) and 8.4(c) by running an advertisement on the firm’s website containing a “materially misleading statement in an attempt to solicit business from the coal mining industry.” Huber insists “the Authors attempt to attribute the higher incidence of birth defects to inbreeding by stating, ‘the study failed to account for consanquinity [sic], one of the most prominent sources of birth defects.’”

Huber says that pitch was based on an Appalachian stereotype that has been scientifically disproven and that such research “has conclusively established that Appalachians are no more prone to inbreeding than any other population, such as white-collar professionals or for that matter, attorneys that work at Crowell & Moring.”

The study contains the following abstract:

Birth defects are examined in mountaintop coal mining areas compared to other coal mining areas and non-mining areas of central Appalachia. The study hypothesis is that higher birth-defect rates are present in mountaintop mining areas. National Center for Health Statistics natality files were used to analyze 1996–2003 live births in four Central Appalachian states (N=1,889,071). Poisson regression models that control for covariates compare birth defect prevalence rates associated with maternal residence in county mining type: mountaintop mining areas, other mining areas, or non-mining areas. The prevalence rate ratio (PRR) for any birth defect was significantly higher in mountaintop mining areas compared to non-mining areas (PRR=1.26, 95% CI=1.21, 1.32), after controlling for covariates. Rates were significantly higher in mountaintop mining areas for six of seven types of defects: circulatory/respiratory, central nervous system, musculoskeletal, gastrointestinal, urogenital, and ‘other’. There was evidence that mountaintop mining effects became more pronounced in the latter years (2000–2003) versus earlier years (1996–1999.) Spatial correlation between mountaintop mining and birth defects was also present, suggesting effects of mountaintop mining in a focal county on birth defects in neighboring counties. Elevated birth defect rates are partly a function of socioeconomic disadvantage, but remain elevated after controlling for those risks. Both socioeconomic and environmental influences in mountaintop mining areas may be contributing factors.

In the firm’s pitch (below), they challenge the findings and tie the analysis directly to the firm’s practice.

This type of ethic’s complaint tends to raise difficult free speech issues for a bar. Rule 1.7 (a) states:

Rule 7.1—Communications Concerning a Lawyer’s Services

This Rule governed the practice of law in the District of Columbia from January 1, 1991, through January 31, 2007. As of February 1, 2007, the Amended Rules took effect.

(a) A lawyer shall not make a false or misleading communication about the lawyer or the lawyer’s services. A communication is false or misleading if it
(1) Contains a material misrepresentation of fact or law, or omits a fact necessary to make the statement considered as a whole not materially misleading; or
(2) Contains an assertion about the lawyer or the lawyer’s services that cannot be substantiated.

The question for the bar is whether this statement is clearly false or falls within the scope of reasoned debate. Lawyers are entitled to free speech protections, even if their views are not widely shared. This creates a relatively low standard to satisfy in arguing that, while perhaps offensive or even widely discounted, a view is still protected as part of a debate in the area. One question is whether these lawyers could make such an argument in court filings without being sanctioned.

Rule 8.4(c) states that “it is professional misconduct for a lawyer to: . . . Engage in conduct involving dishonesty, fraud, deceit, or misrepresentation.”

Once again, the sanction would turn on the content of the speech and the question of whether the view is entirely without basis or plausibility.

As the grandson of an Ohio coal miner, I share the view of this posting by the law firm. However, I tend to err on the side of free speech in such cases. In Bates v. State Bar of Arizona, 433 U.S. 350, 97 S.Ct. 2691, 53 L.Ed.2d 810 (1977), the Court held that lawyer advertising was a form of protected free speech — though that was a case looking at a ban on advertising.

Yet, Professor Huber is arguing that this is neither a plausible or debatable point. The complaint weakens a bit on the statements like the following: “While it is true that the Study did not account for consanguinity, this does not mean that the Study’s findings are any less valid.” That is certainly true, though the bar could find the fact that it was not directly addressed in the study sufficient basis to treat this as simply a contested fact in an area of often heated litigation.

The question is whether the bar wants to hold the type of expert hearing that would test the basis for such a statement or whether it feels such an inquiry would put the bar on a slippery slope in having to evaluate the basis for all such statements by advocates.

What do you think?

CrowellMoringCache

Source: West Virginia Gazette as first seen on ABA Journal

I have long condemned CNN’s hiring of Grace who was a disgrace as a prosecutor and an embarrassment for the entire bar.

While many of us have voiced our suspicions or condemnations of Knox and her boyfriend, we recognized the appellate decision as a victory of justice for rendering a detached and dispassionate verdict — the very antithesis of the snarling signature of Grace on CNN.

Grace’s reaction to such acquittals is quite predictable and formulaic. Grace is the Madam DeFarge of American justice. She refuses to undo her knitting even in the face of reasonable doubt or compelling evidence. Her snarling, retributive style is the draw for a very sad and very angry portion of our population.

For years, some of us have been casting doubts on the Knox case. Ironically, the Knox prosecutors were accused of the same shoddy and speculative work that often characterized Grace’s own career, who was repeatedly accused of unprofessional and abusive conduct as a state prosecutor before being hired by CNN. She often barks about a travesty of justice. Yet, justice appears synonymous with retribution in her lexicon. The result is that, in Grace’s world, justice itself is a “miscarriage of justice.”

This is why the recent clothing malfunction of Grace on Dancing With the Stars was little surprise to those who already view her CNN program as little more than a legal Burlesque show.

Source: IB Times”Misca

Presumably, the “Distinguished” refers to the chair rather than the holder.

Belmont College of Law Founding Dean Jeff Kinsler insisted that Gonzales has what it takes to be “an outstanding professor.” So long as he does not waterboard the students.

What is truly scary is is Gonzales’ pledge to help “develop tomorrow’s leaders in the bar, the Nashville community and beyond.” The idea of Gonzales shaping lawyers is enough to force one into a fetal position.

Nevertheless, Doyle Rogers’ wife, Barbara Massey Rogers is ecstatic: “I thought it fitting and most appropriate to recognize a man of his stature and accomplishments in the legal profession at the opening of the new law school at Belmont University, a university very close to my heart.” “Of his stature and accomplishments”? He is on the top of the list in various countries as an alleged war criminal and was the target of the Spanish war crimes investigation until the Obama Administration coerced the Spaniards to block the prosecution. He is viewed by conservatives and liberal lawyers alike of destroying the professionalism and morale of the Justice Department by hiring exceptionally low quality lawyers who were selected for their blind loyalty to the President.

Here is the school’s press release.

I know little about Belmont University or its law school. However, it is a disgraceful start of any institution committed to teaching the rule of law by hiring a man viewed as its very antithesis. Here is a more relevant quote for the next press release from Justice Louis Brandeis in Olmstead v. United States, 277 U.S. 438 (1928).:

In a government of laws, existence of the government will be imperiled if it fails to observe the law scrupulously. Our government is the potent, the omnipresent teacher. For good or for ill, it teaches the whole people by its example. Crime is contagious. If the government becomes a lawbreaker, it breeds contempt for law; it invites every man to become a law unto himself; it invites anarchy. To declare that in the administration of the criminal law the end justifies the means — to declare that the government may commit crimes in order to secure the conviction of a private criminal — would bring terrible retribution. Against that pernicious doctrine this court should resolutely set its face.

Source: Tennessean

Following its long-standing approach in the courts, the Obama Administration is fighting against public interest organizations seeking to show the government violated the law and denied protected privacy to citizens. It appealed a decision by the panel to allow these citizens to be heard — the latest opposition of President Obama to core civil liberty claims.

Judge Gerard Lynch, who favored standing, offer a measured account of how “the glory of our system that even our elected leaders must defend the legality of their conduct when challenged.”

Instead of sticking with such profound and important questions, Chief Judge Dennis Jacobs decided to take a more personal and mocking approach: “As best I can see,” he wrote, “the only purpose of this litigation is for counsel and plaintiffs to act out their fantasy of persecution, to validate their pretensions to policy expertise, to make themselves consequential rather than marginal, and to raise funds for self-sustaining litigation.” He then analogized the lawsuit to a “plaintiff’s allegation that the CIA is controlling him through a radio embedded in his molar.” For good reason, no other judge joined Jacobs’ inflammatory opinion.

There are substantive portions to Jacobs’ opinion, but it is degraded by such rhetoric.

This is not the first controversy for Jacobs who was put on the bench in 1992 by President George H. W. Bush. Jacobs in one of those jurists (criticized in prior columns) who seem to relish speaking before ideological groups and discussing matters that are either before his court or likely to come before him. For example, on November 19, 2010, he delivered a speech titled “National Security & The Constitution” before a gathering of the Federalist Society at the Mayflower Hotel in Washington where he criticized courts for their rulings against national security agencies and lawyers who distrust the military. What concerns me with these types of speeches is that judges can feel that they have to maintain “their base” and play to the ideological appeal of reckless rhetoric and posturing from the bench.

He was criticized for saying in one case that he refused to even read the majority opinion before filing a dissent as a sign of contempt for his fellow judges. He simply noted “I concede that this short opinion of mine does not consider or take into account the majority opinion. So I should disclose at the outset that I have not read it.”

While judges are quick to sanction lawyers for bad behavior, they clearly find it more difficult to deal with jurists like Jones and Jacobs. Civility is an important value in our courts and these judges undermine the judiciary with such inflammatory and unprofessional commentary.

Here is the opinion, which will leave the panel decision unchanged: 09-4112_complete_enbanc_opn

Source: ABA Journal and New York Times

Jonathan Turley

Even when I clerked on the Fifth Circuit near the start of Jones’ career, she was the subject of many complaints about her private demeanor and perceived bias. This however is a truly amazing transcript produced over at Above The Law.

MR. TURNER: I think the amount of drugs in that truck supports the intent to distribute. And the jury….
JUDGE DENNIS: Well, we’ve said over and over that the amount…. this court, no court has said that you can infer….
CHIEF JUDGE JONES: Judge Dennis….
JUDGE DENNIS: … just on the basis of the amount of drugs …
CHIEF JUDGE JONES: Judge Dennis!
JUDGE DENNIS: Can I, can I, can I ask a question?
CHIEF JUDGE JONES: You have monopolized, uh, uh, seven minutes….
JUDGE DENNIS: Well, I’m way behind on asking questions in this court. I have been quiet a lot of times, and I am involved in this case….
CHIEF JUDGE JONES slams her hand down on the table (loudly), stands halfway up out of her chair, and points toward the door.
CHIEF JUDGE JONES: Would you like to leave?
JUDGE DENNIS: Pardon? What did you say?
CHIEF JUDGE JONES: I want you to shut up long enough for me to suggest that perhaps….
JUDGE DENNIS: Don’t tell me to shut up….
CHIEF JUDGE JONES: … you should give some other judge a chance to ask a question …
JUDGE DENNIS: Listen, I have been in this courtroom many times and gotten closed out and not able to ask a question. I don’t think I’m being overbearing….
CHIEF JUDGE JONES: You’ve been asking questions for the entire seven minutes….
JUDGE DENNIS: Well, I happen to be through. I have no more questions.
CHIEF JUDGE JONES: I just want to offer any other judge an opportunity to ask a question. Some may support your position. If nobody else chooses to ask a question, then please go forward.

As the article explains below, Jones has been extremely harsh with other judges over civility issues and other misconduct. In August, Judge Sam Sparks (W.D. Tex.) was chastised by Jones for telling lawyers that they might have to go to a “kindergarten party” to learn manners. Jones reprimanded Sparks for his “caustic, demeaning, and gratuitous” order as “cast[ing] disrespect on the judiciary.”

Jones has often been cited as a candidate for the Supreme Court as one of the most conservative jurists in the country, though some of us have criticized her for opinions that can be superficial and outcome determinative. She was the General Counsel for the Republican Party of Texas. Her consistent hard right approach to cases often produces a perception of bias and rigidity — and a lack of patience with both lawyers and arguments that are contrary to her views.

Jones later apologized to Dennis, though the question is whether that is sufficient in such an outrageous act of incivility and rudeness. Certainly, it would not be enough under the Jones standard that she applied previously to other judges. The question is whether any lawyers will now bring formal complaints against her for the shocking display.

I have always been critical of the lack of civility in our courts. There are too many judges who are infamous for their arrogance and plain meanness. I was shocked recently, however, to see such an exchange from Richard Posner on the Seventh Circuit, a man who is deserving of great respect for his contributions as an academic and a judge.

[Update: Chief Judge Dennis Jacobs has now added his own name to this list of controversial conduct of judges]

Oral argument: Jones/Dennis Exchange

Source: Above the Law

Maksym represented an outdoor concert promoter charged the county sheriff with coercing him into hiring his deputies for security. Poor brief writing is not a basis normally for disbarment but the court found that Maksym was “unable to file an intelligible complaint.” Maksym was given three opportunities to correct the brief but “[e]ach iteration of the complaint was generally incomprehensible and riddled with errors, making it impossible for the defendants to know what wrongs they were accused of committing.”

Maksym was counsel in the high-profile case of Drew Peterson, a former police officer accused of murdering his third wife. Maksym insists that the briefs were written while he was struggling with treatment for cancer.

In the opinion below, there is no question the Maksym acted unprofessionally, including claiming in September that he could not file on a deadline because his computer was damaged in an earthquake in California in July. The court quotes such lines as:

Stanard and attendees, were stunned on the day of the family-oriented event, when an even more menacing law enforcement presence was created when Nygren’s armed deputies, without prior consent or permission, warrant or probable cause, arrived, not a part of any agreement and a surprise and upset when it arrive, uninvited, on and entered and trespassed on Plaintiff property with drug-sniffing ‘K-9’dogs, obviously and unfortunate that Defendants were ‘looking for trouble’ where there was none as distinct from “looking to serve”.

The court concludes with a bomb:

In short, Maksym’s entire approach to this case was alarmingly deficient. For all the foregoing reasons, we hold that the district court was well within its discretion to deny leave to file the second amended complaint and to dismiss the case with prejudice. We also order Maksym to show cause within 21 days why he should not be removed or suspended from the bar of this court or otherwise disciplined under Rule 46(b) or (c) of the Federal Rules of Appellate Procedure. We also direct the clerk of this court to send a copy of this opinion to the Attorney Registration and Disciplinary Commission of Illinois for any action it deems appropriate.

The decision of the trial court not to allow an amended complaint is a severe sanction. A court can also assign costs. I have concerns over raising this as a disbarment offense, however. There are an array of responses to combat this type of practice. The underlying case itself presented disturbing allegations of police misconduct. To be sure, those allegations were not presented in a professional way. However, the panel’s affirming of the dismissal was a harsh penalty and could subject Maksym to a malpractice claim. My concern is one of consistency and, frankly, fairness. Some public interest lawyers receive hostile reactions for judges, even respected judges like the recent controversy involving Richard Posner on the Seventh Circuit. I have seen government lawyers and prosecutors who have violated the same types of orders, filed false statements, and even put on perjurious testimony with no response from courts — despite motions filed to some action.

If courts are going to start referring poor brief writing to the bar, we will need to expand bar committees ten-fold. Courts have ample power to deal with such problems. The real problem is that such authority is not applied evenly among lawyers.

Source: Chicago Tribune as first seen on ABA Journal.