PORTEOUS IMPEACHMENT TRIAL — DAY TWO

The second day of the Senate trial for United States District Court Judge Thomas Porteous starts today. The witness list include Lori and Louis Marcotte . . .

Much of this testimony will center on Article II of the impeachment. I have attached our motions to dismiss Article Two and our general summary if you are following the case.

Judge G. Thomas Porteous, Jr.’sMotion to Dismiss Article II

Porteous Pre-Trial Statement
Porteous Pre-Trial Statement – Exhibits

62 thoughts on “PORTEOUS IMPEACHMENT TRIAL — DAY TWO”

  1. Blouise,

    Don’t forget that the Chair is employed by the Senate…the salary is paid for by the Senate and the term of employment is at will….

    Although I think the Judge is a pompous ass, I also think that what he did is reprehensible and the attorneys to boot. They should all be charged with Conspiracy to commit criminal acts, yada……

    But what the are complaining about happened long before he took the federal bench…..

    This stuff should have come out already…..

    So, to say that he is an SOB after everyone knows that he is an SOB is kind of redundant. Should he be left on the bench….in my mind there are many state judges that are much worse than he….at least he was blatant about his demands….its those that don’t get contributions and punish the client….and the judge that says if you don’t like my ruling appeal it….most people don’t have 5 to 100,000 laying around to appeal….so they get stuck with a suck ass decision….all because money was not donated….or the Judge has a bias against the attorney…

    At least this judge ruled for an against the attorneys….gotta love that…even if he is an SOB….

  2. AY, Buddha, et all,

    I reread the material and all the posts … I lack my usual assurance on this matter as it seems to strike very close to the foundation of our legal system (judiciary independence) and I am happily surrounded by fine legal minds and don’t possess all the buzz words and so am constantly questioning my understanding of the matter.

    I hope no one thought I was questioning the Prof’s dedication to his client for I was not.

    For the untrained legal mind all this information, argument, and testimony will sink in gradually and confidence in one’s understanding will grow through that process of absorption. (I hope)

    For instance: “Turley’s thrust is that a large corporation entered into a written contract for $100,000 with one of that corporation’s lawyers to have Porteus removed from the case.

    When Porteus would not do do, they went after him through political channels.” (Dredd) I knew that but at the same time I had forgotten that having gotten caught up in the Marcotte players.

    I do get the distinct impression that the Chairman is biased against the Judge and his defense team which I ascertain from her actions and especially her tone of voice when addressing the defense. She skirts the edges of outright rudeness … purposely never quite crossing the line but willingly approaching it often. Also, her jokes about the tardiness and inattention of her fellow Senators to time is, quite frankly, not in keeping with the seriousness of this proceeding. Such irresponsibility on the part of her colleagues is not funny at all.

  3. I am beginning to see Professor Turley’s theory of the case shine through.

    Juries like for criminal defendant’s lawyer to “solve the case” for them.

    Turley offered that even though most of “the jury” in this case are lawyers who may be more influenced by politics than justice.

    Turley’s thrust is that a large corporation entered into a written contract for $100,000 with one of that corporation’s lawyers to have Porteus removed from the case.

    When Porteus would not do do, they went after him through political channels.

    While my sense of ethics would forbid the kind of practices that are in this record, in terms of gifts and favors to judges, our nations is a nation of “50 experiments”, meaning states rights entail the reality of letting states make their own laws so long as they do not violate the federal constitution applicable to all equally.

    The evidence so far put on by the House is primarily about events that happened a couple of decades ago in the state realm, not in the federal realm.

    I doubt it would be admissible in some federal court trials because it seems intended only to inflame passion and bias in the emotions of “the jury”.

    The bail bondsman executive testified that he gave $10,000 cash to a judge who is still a state court judge in Gretna.

    Other judges in Gretna were prosecuted who received less cash, so this whole selective prosecution thing reeks of political scheming so I disdain this Porteus trial which has no federal criminal charge nor trial record upon which to build the usual foundation.

  4. AY,

    I have been unable to find anything showing the Louisiana State Bar Association is even officially paying attention to this case, much less acted on the substance of the matter.

  5. Blouise,

    I think what is going on and I am playing Monday Morning Quarterback….the allegations go to while he was a state Judge…if not then forget the rest…the Appearance of impropriety, failed to recuse himself when he had an interest in a case, taking money, receiving things of value…I think one of the questions that is always asked of nominees…..do you know of any reason why your confirmation should not be confirmed……

    I think all of the allegations go to the time frame of being a state judge….period…..unless the statute of limitations has run, for the possible criminal charges …the only thing that would be left is the office of disciplinary for the state of Louisiana…even if the impeachment procedure does not convict….I do not think that these issues really require a time frame…..for this type of aberrant behavior regardless of time frame…anything which tends to impune the the holder of office or the practice of law……This is entirely a state issue…..does anyone know if the state bar of La has acted on any of the allegation?

    I still have trouble with the bankruptcy filing…..how is it that the filed a false statement, if these were all prior to the Federal Appointment?

  6. Blouise,

    I think your instincts are good on this issue in re principles versus particular. There is far more at stake here than one judge’s job.

  7. AP STORY ON LINE 9-13-2010

    First Senate impeachment trial since Clinton starts

    U.S. Federal District Judge Thomas Porteous. (AP)

    The first Senate impeachment trial in more than a decade begins Monday as senators meet to consider removing U.S. District Judge G. Thomas Porteous Jr.

    The House voted unanimously in March to impeach Porteous, almost two years after the Judicial Conference of the United States referred him to Congress for impeachment proceedings. The 63-year-old judge, based in New Orleans, faced four articles of impeachment, including allegations that he lied during background investigations related to his 1994 nomination to the federal bench. Federal court officials on Friday extended his suspension from the bench through the end of the year.

    The 12-member Senate Impeachment Trial Committee, led by Claire McCaskill (D-Mo.) and Orrin Hatch (R-Utah), will start hearing arguments from lawyers representing the House of Representatives and Porteous. The panel will vote at the end of the trial whether to refer a conviction to the Senate. Porteous would be the eighth federal judge in U.S. history removed by Congress, if convicted by the Senate.

    The proceedings will be similar to a trial, with each side allotted up to 20 hours to call witnesses and present evidence, according to the committee. Senators are allowed to ask questions of the witnesses. The hearings will run from about 8 a.m. through 7 p.m. each day through Thursday and likely will continue next Tuesday, aides said.

    Reps. Adam Schiff (D-Calif.) and Bob Goodlatte (R-Va.) will serve as lead managers for the House with the assistance of Zoe Lofgren (D-Calif.), Hank Johnson (D-Ga.) and James Sensenbrenner (R-Wis.).

    Porteous is represented by a team of lawyers led by George Washington University Professor Jonathan Turley and Dan Schwartz with the law firm of Bryan Cave. The four articles of impeachment are either vague or relate to events that occurred before Porteous joined the federal bench, they argue in their pre-trial statement:

    “The House has made, and can be expected to continue to make, vague references to offenses, such as ‘kickback’ and ‘bribery,’ as if they had been alleged by the House in voting out the Articles of Impeachment, when in fact they were not,” the lawyers said. “Three of the four Articles seek to remove Judge Porteous largely on the basis of conduct that allegedly occurred while he was a state court judge, although it is generally agreed that such ‘pre-federal’ conduct should not be a basis for removing a federal judge. … If removed on the basis of an appearance of impropriety, the Senate would set a dangerously low and ill-defined standard for future impeachments – the very danger that the Framers sought to avoid in carefully crafting the impeachment language.”

    But a New Orleans Times-Picayune editorial published Saturday called for a swift conviction: “We’ve had to live with this crooked judge in office for far too long,” the paper said, noting that allegations of wrongdoing first surfaced more than seven years ago.

    “A mountain of evidence, and guilty pleas from several people involved, have since shown how Judge Porteous further prostituted his office,” the editorial board wrote, adding later, “If all this is not enough to kick a judge off the bench, then the impeachment process is meaningless.”

    This is the first Senate impeachment trial for a federal judge since 1989, according to the committee. Hatch is the only member of the committee who also sat for that trial. According to the National Law Journal (subscription required), the House impeached U.S. District Judge Samuel Kent last year after he pleaded guilty to obstructing a sexual harassment investigation against him. He resigned before the Senate could hold a trial.

    Members of the Senate Impeachment Trial Committee:

    Claire McCaskill (D-Mo.) — Chairman
    Orrin G. Hatch (R-Utah) — Vice Chairman
    John Barrasso (R-Wyo.)
    Jim DeMint (R-S.C.)
    Mike Johanns (R-Neb.)
    Ted Kaufman (D-Del.)
    Amy Klobuchar (D-Minn.)
    James E. Risch (R-Idaho)
    Jeanne Shaheen (D-N.H.)
    Tom Udall (D-N.M.)
    Sheldon Whitehouse (D-R.I.)
    Roger Wicker (R-Miss.)

    By Ed O'Keefe | September 13, 2010; 8:00 AM ET | Category: Congress
    Previous: Other items on the Congressional to-do list | Next: Postal Service starts negotiations with another union

  8. It was my impression, and please anyone correct me if I have misunderstood, that the Prof was seeking to protect the Federal judiciary from disproportionate congressional pressure, political pressure, corporation pressure, more so than “defending” a particular judge. Also, this impeaching on past acts before confirmation was also an issue for the Prof.

    I never expected to feel any real compassion for the judge in question but I believe the principles involved are worth defending.

    If I am on the wrong tract in my impression … please set me on the proper path. I’m always open to constructive criticism.

  9. Background article from CNN 3-11-2010 FYI:

    House votes to impeach federal judge from Louisiana March 11, 2010 6:59 p.m. EST

    Federal Judge G. Thomas Porteous Jr. of Louisiana was impeached Thursday by the U.S. House of Representatives.
    Judge G. Thomas Porteous Jr. was impeached by U.S. House of Representatives
    Porteous is from U.S. District Court for the Eastern District of Louisiana
    Rep. Adam Schiff: Porteous “participated in a pattern of corrupt conduct for years”

    Washington (CNN) — The House of Representatives voted unanimously Thursday to impeach Judge G. Thomas Porteous Jr. of U.S. District Court for the Eastern District of Louisiana, making him the nation’s 15th federal judge ever impeached.

    “Our investigation found that Judge Porteous participated in a pattern of corrupt conduct for years,” said U.S. Rep. Adam Schiff, D-California, chairman of the House Judiciary Committee Task Force on Judicial Impeachment.

    “Litigants have the right to expect a judge hearing their case will be fair and impartial, and avoid even the appearance of impropriety. Regrettably, no one can have that expectation in Judge Porteous’ courtroom.”

    After the impeachment vote, Schiff and Rep. Bob Goodlatte, R-Virginia, were named the lead impeachment managers for the Senate trial, which will decide whether to remove Porteous from the bench.

    “Today’s vote marks only the second time in over 20 years that this has occurred,” Goodlatte said in a House news release. “However, when evidence emerges that an individual is abusing his judicial office for his own advantage, the integrity of the entire judicial system becomes compromised.”

    In a statement, Porteous’ lawyer Richard W. Westling said the Justice Department had decided not to prosecute because it did not have credible evidence.

    “Unfortunately, the House has decided to disregard the Justice Department’s decision and to move forward with impeachment. As a result, we will now turn to the Senate to seek a full and fair hearing of all of the evidence.”

    In a telephone interview, Westling said he did not know when the Senate trial would be held. “There are no clear rules that dictate timing,” he said.

    Last year, the Task Force on Judicial Impeachment held evidentiary hearings that led to unanimous approval of the four articles of impeachment, citing evidence that Porteous “intentionally made material false statements and representations under penalty of perjury, engaged in a corrupt kickback scheme, solicited and accepted unlawful gifts, and intentionally misled the Senate during his confirmation proceedings,” the House release said.

    Porteous was appointed to the federal bench in 1994.

    In 2007, after an FBI and federal grand jury investigation, the Justice Department alleged “pervasive misconduct” by Porteous and evidence “that Judge Porteous may have violated federal and state criminal laws, controlling canons of judicial conduct, rules of professional responsibility, and conducted himself in a manner antithetical to the constitutional standard of good behavior required of all federal judges.”

    The complaint said the department opted not to seek criminal charges for reasons that included issues of statute of limitations and other factors. But Westling said the statute of limitations was not applicable.

    An Impeachment Task Force held four hearings late last year that focused on allegations of misconduct by Porteous, including:

    — Involvement in a corrupt kickback scheme

    — Failure to recuse himself from a case he was involved in

    — Allegations that Porteous made false and misleading statements, including concealing debts and gambling losses

    — Allegations that Porteous asked for and accepted “numerous things of value, including meals, trips, home and car repairs, for his personal use and benefit” while taking official actions on behalf of his benefactors

    — Allegations that Porteous lied about his past to the U.S. Senate and to the FBI about his nomination to the federal bench “in order to conceal corrupt relationships,” Schiff said in his floor statement as prepared for delivery

    Porteous was invited to testify, but he declined to do so, Schiff said. “His long-standing pattern of corrupt activity, so utterly lacking in honesty and integrity, demonstrates his unfitness to serve as a United States District Court judge,” he said.

    Porteous, 63, has not worked as a judge since he was suspended with pay in the fall of 2008, Westling said.

    The last federal judge impeachment occurred last year, when Judge Samuel B. Kent of the U.S. District Court for the Southern District of Texas resigned after being impeached on charges of sexual assault, obstructing and impeding an official proceeding, and making false and misleading statements, according to the Web site of the Federal Judicial Center.

    The Senate, sitting as a court of impeachment, dismissed the articles.

    Before then, Judge Walter L. Nixon of U.S. District Court for the Southern District of Mississippi was impeached in 1989 on charges of perjury before a federal grand jury. The Senate convicted him and removed him from office that year.

  10. One of the things that has always impressed me with the jury system (or as embodied here with a jury of Senators) is the great weight placed on the totality of the circumstances in rendering an opinion. It is an amazing application of Gestalt psychology in which jurors deduce a general pattern from sometimes conflicting or incongruous bits of evidence. Some call it “common sense,” but I find it more decision-making based on collected life experience about how people generally act and react. It is the filter through which all the evidence and its rebuttal is judged.

    I find this happening here, as JT meticulously slashes through every thorny thicket with his usual aplomb. I sense though that something is awry with our good Judge,and that is my overriding impression. It is unquantifiable and very un-lawyerly, I must say, but it is as markedly human as poetry. I wish our host well, but I am getting the feeling that the subject of the hearing may be more like the character from Chaucer’s, “The Pardoner’s Tale” than Zola’s “J’accuse.”

  11. I found this article online relating to this Congress’ failure to fill federal judicial vacancies in this country. I was thinking about the irony of impeachong one federal judge (in less than a 40 hour “trial” vs. failing to fill 54 federal judgeships since January, 2007(3.75 Years!).
    Interesting……

    Judicial Nominations

    OLP works with the Attorney General in advising the President on nominations for Article III judgeships. After the President has submitted a nomination to the Senate, OLP works with the White House and the Senate Judiciary Committee in securing the nominee’s confirmation. The data on this site provide an overview of the nomination and confirmation activity relating to each Congress since the 107th.

    110th Congress

    54 = Current vacancies in the 870-member Article III federal judiciary.

    Article III judiciary includes the Supreme Court of the United States, Circuit Courts of Appeals, District Courts, and the Court of International Trade.
    104 = Nominations submitted in the 110th Congress.

    —————————————————————–
    Current Vacancies Nominations Since 1/2007 Confirmations
    Sup. Ct. 0 (of 9)
    Circuit 13 (of 178) —7% 24 10
    District 41 (of 674) —6% 80 58
    CIT 0 (of 9)
    TOTAL 54 (of 870) —6% 104 68

  12. The Times-Picayune
    September 8, 2010 Story

    The Judicial Council of the 5th U.S. Circuit Court of Appeals today extended federal District Judge Thomas Porteous’ suspension through the end of the year.

    AP archiveThomas Porteous
    The New Orleans-based court’s administrative panel acted two days before its two-year suspension of Porteous was set to end and five days before the U.S. Senate plans to try Porteous on impeachment charges.
    Share The council’s one-sentence order says it is extending through Dec. 31 the effect of three paragraphs of its Sept. 10, 2008, decree, which forbade the District Court in New Orleans to assign Porteous new cases and stripped him of his hiring authority. Those measures were to last for two years.

    At the time those measures were imposed, the council said it was “taking the maximum disciplinary steps allowed by law against Judge Porteous.” Its latest order does not explain how it is now allowed to extend them, and the 5th Circuit’s senior appellate conference attorney, Joseph St. Amant, who sometimes speaks for the court, would not comment.

    Porteous, who lives in Metairie, was a state district judge for 10 years before President Clinton appointed him to the federal bench in 1994. He continues to collect his $174,000 annual salary while on suspension but would lose his lifetime appointment — and lifetime pay — if the Senate removes him from office.

  13. It’s also interesting to me that Jon’s “Jury” is composed of 12 senators[ 6 democrats and 6 republicans] and 7 are needed for a quorum apparently to do business[ have a “trial”] and they take months to review a single piece of legislation, but have rules confining Jon to approximately 20 hours of time to defend the 4 Articles of Impeachment. In the real civil law world, in front of a real competent judge, Jon’s motion for summary judgment/to dismiss would have been granted because these acts in the first 2 articles of impeachment were BEFORE his client was a federal judge! I’m still amazed at the motivation of the government since he was not indicted (and the government would have had to prove the case beyond a reasonable doubt standard) and has announced his intention to resign from the federal bench next year, if my understanding of the facts is correct. As a practicing criminal defense lawyer in the W.D. Of KY, I can only conclude that the Judge’s apparent unwillingness to negotiate/settle the case was taken as a “come get me” and the government will amass all the powers they can to remove him. It is obvious that the standard of proof before this body is less than the burden of proof in a real criminal case in federal or state court. David vs. Goliath…Jon will need to pull out a stone and sling it…All the best, Frank

  14. The chair is sooo cute when she’s dealing with blackberry alarms … goodness, but doesn’t she have the “common” touch!

    The Prof is certainly getting in the way of the Congress’s designs on the Constitution.

    By the way … Chase On-line banking is of little use if one can’t get on-line to do one’s banking.

  15. Attorney Mascagni,

    Thank you for your comments herein during the Senate impeachment trial.

    professorofdesire,

    One of the resident sage lawyers posting to this blawg stated your apropos sentiments with this Shakespearian quote 2 days ago:

    Quote:

    mespo727272

    1, September 12, 2010 at 9:55 pm

    The jury, passing on the prisoner’s life,
    May in the sworn twelve have a thief or two
    Guiltier than him they try.

    ~William Shakespeare (Measure for Measure)

  16. It’s sooo cute when the chair has to deal with Blackberry alarms … she has the “common” touch

    Keep on keeping on, Prof they’re quite concerned you’re going to get in the way of their designs on the Constitution.

  17. I echo Frank’s words and laugh at professorofdesire’s comic sensibilities.

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