With the completion of the trial portion of the Porteous impeachment, the parties are required to submit the proposed findings of fact as established in testimony. Below are the material facts in the trial in a filing that we submitted to the Senate.
The findings are divided by Articles of Impeachment and may help explain why particular witnesses were called as well as lines of questioning.
Porteous Proposed Findings of Fact
Article IV: Observations
Article IV charges that the judge made material false statements to the United States Senate and to the FBI by consealing information and not disclosing anything that could cause an embarrassment to the judge or to the president. Further that he consealed activity that could be used to influence or compermise him if appointed. These allegations stem from the judges answers to questions submitted to him and to interviews by the FBI.
The defense points out that the House presented no evidence that Judge Porteous tried to conceal the information. The defense points out in pages 133-152 the general nature of the form questions and the general report generated by the reviewing FBI agent.
The defense pointed out by an expert witness, Professor Mackenzie, that no individual has ever been prosecuted nor removed from office for falsely answering these types of questions. Jon points out that during the FBI interview that the agent testified that the judge was not placed under oath, not given the opportunity to review the summary, not given a copy of the document nor the opportunity to review the information before it is submitted to the Senate. The agent futher testified there was no audio nor video tape made of the interviews. This is classic criminal defense lawyering pointing out that statements are subject to interpretation by the author of a summary statement when there is no audio nor video recording to preserve exactly what is asked and the exact answer given.
The brief points out that two interviews were had with Louis Marcotte, two interviews with the judge of a total of approximately 120 interviews in connection with the background investigation of Judge Porteous. The brief points out that information was exchanged between the Department of Justice and the FBI and that the Senate judiciary committee reviewed the FBI’s background investigation prior to the judges confirmation and were aware of the allegations that Judge Porteous “took kick-backs”, aware that the judge was living beyond his means and might be involved in some type of criminal activity, that the judge may have a drinking problem and that the judge gambled. Additionally, after the judge was nominated but prior to his confirmation the Judiciary Committee interviewed Robert Creely, Don Gardner and Louis Marcotte, among others.
Professor Charles Geyh testified that the judges intentions in answering the questions would have to be looked at and was not supprised that no judge had ever been charged nor disciplined for providing false information to the Senate Judiciary Committee.
My take is that Article IV is a catch all Article designed to have at least one Article available in the event the proof failed to convict on the first three Articles.
Conclusion:
In a review of the 154 page document filed by Team Porteous, Jonathan has done an excellent job pointing out in the record all of the testimony that is favorable to the defense in defending each of the four Articles. Considering the time frame available (5 days of trial testimony, September 13-21, 2010) to prepare the transcripts, do the research, prepare numerous drafts of the pleading and file same by October 1, 2010, this document is an incredible feat of accomplishment.
I know Jon will do an excellent oral argument before the full Senate. The unanswered question is: Can this record and Jon’s remarks persuade 34/100 not to vote to “convict” on all four Articles? There are two levels of perspective: the facts in the record as viewed by the Senate as to the individual acts of Judge Porteous vs. the higher level of constitutional history as to whether or not this impeachment vehicle is the correct forum to address these alleged wrong doings. I submit that these acts if true and if proven beyond a reasonable doubt standard should have been heard in a criminal jury trial or should have been heard by a disciplinary authority prior to the commencement of this Senate “trial”.
I hope this blog will be of some benefit to you faithful bloggers. All views expressed are those of the author, an old, beat up, weather worn criminal trial lawyer who has been litigating criminal matters for over 33 years.
Frank.
Frank Mascagni, III:
Thank you for the explanations Sir.
Article III:
Pages 94-132 deal with the actions of Judge Porteous in filing a bankruptcy petition while he was a federal judge. Article III alleges that he knowingly and intentionally made false statements under penalty of perjury and that he repreatedly violated a Court Order in his bankruptcy case. Use of a false name, consealment of assets, gambling losses and incurring new debt.
Article III does not allege that the judge abused his power nor authority as a federal judge. It asserts that the judge should be removed because he is guilty of high crimes and Misdemeanors.
The defense relies upon the legal advice of the judges attorney, Mr. Lightfoot, in suggesting the use of a pseudonym to avoid embarrasment but not to deceive or defraud the Court nor creditors. The brief gives testimonial support for the various claims made by the government dealing with the tax refund, payment to creditors, teh legal affect of casino markers, etc.. Jon points out that the Chapter 13 repayment plan was successful and that none of the judges actions were referred for potential prosecution and that the Trustee advised the FBI that he did not attend to take any action raised by the Department of Justice/FBI and declined to dismiss the case noting that the government was free to file an objection with the bankruptcy Court.
Jon points out that the government never filed an objection with the bankruptcy judge, no creditor ever objected to the repayment plan and no party sought to dismiss the bankruptcy case nor to convert the Chapter 13 to a Chapter 7 case. In fact, the Justice Department declined to bring any criminal charges against Judge Porteous based on its concerns about the materiality, the state of mind of the judge regarding intent to deceive, etc..
Jon concludes with the difficulty of the bankruptcy forms, possible human error and the expertise needed to understand and apply bankruptcy concepts. Jon provides a record and testimonial references to disprove that the judge knowingly and intentionally made false statements under a penalty of perjury.
Article IV observations to follow.
Article II:
Article II alleges that the judge ingaged in a longstanding pattern of corrupt conduct as a state judge. It alleges that the judge accepted numerous things of value for his personal use and benefit and that he took official actions that benefited the Marcottes (Louis and Lori of Bail Bonds Unlimited), and that he used his power while on the federal bench to assist the bail bondsmans business. It does not allege that the judge suborned false statements or that the judge made a false statement himself but alleges that he understood Louis made false statements to the FBI.
Jon urges that the Article fails because the judge never received any cash or kick back in connection to his setting of any state bonds requested by the Marcottes. Jon makes a strong argument that the judge’s actions were lawful in the setting of bonds, that the judge never set a bond while on the federal bench and that he and Louis were friends. Jon correctly points out that Louis and Lori are convicted felons and that their plea agreement required their cooperation with the government. This is very similar to proceedings in a real criminal trial when the government is putting on its case in chief against a Defendant that is charged with Trafficking in Drugs and calls as witnesses his fellow drug conspirators to prove their case. The difficulty in real life is that these witnesses are obligated to perform to the satisfaction of the prosecutor, and depending on the plea agreement, their testimony is required and if not to the satisfaction of the prosecutor could call into question the considerations given in the plea agreement drafted by the prosecutor. Cross examination of an informant/”snitch” is sometimes a difficult task. It is up to a jury to to weigh the credibility of the convicted felon and I have seen such witnesses accepted by the jury and some rejected by the jury based on their motivation for testifying against a codefendant.
In this Senate “trial”, for those of you who watched it on CSPAN, showed Louis Marcotte to be a person extremely interested in developing relationships with state judges who could assist him in making money. He testified that he liked to be seen with judges in public because he thought it was good for business. “The proof in the pudding” comes out by design or chance when convicted felon ex-judge Bodenheimer testified that he was originally called by the prosecution and excused, but later called by the defense that the House wanted to use him to bolster the testimony of Louis Marcotte because the House had no faith in his credibility without being assisted by Bodenheimer.
Jon points out that all the testimony about lunches, trips, auto and home repairs, etc. were given to the judge by the Marcottes without a “quid pro quo” per se, but rather for access to the judge.
The defense points out the need for bail bondsmen in the jurisdiction and that the local jail was under a Court Order for over crowding. The defense spends a lot of time referencing the testimony and the record (pages 49-93) presenting other facts to explain away the judges relationship to the bail bondsman and the courtesies extended to the judge by the Marcottes.
The defense explains the Louisiana Law dealing with set asides and expungements of criminal records and a neutral explanation for the judges role in relationship to the two defendants that were employed by the bail bondsmen while judge Porteous was a state judge.
My take is, that Jon is arguing that these acts were while Judge Porteous was a state judge and that prosecutor failed to prove that his actions were “corrupt conduct”. They might be questionable, might be unprofessional, but they were not illegal nor unethical at the time under the Professional Code of Conduct in Louisiana.
Article III-IV to follow.
Frank Mascagni, III:
This kinda answers a question that AY and myself asked back on day (5).
” The record supports that the Department of Justice declined to prosecute Judge Porteous in Federal Court. One can assume that the state jurisdiction also declined to prosecute Judge Porteous in state Court since he has not been charged nor convicted of a state crime”
6 eniobob
1, September 21, 2010 at 9:25 am
Whats being said back home:
Remember Judge Thomas Porteous’ victims: An editorial
Published: Saturday, September 18, 2010, 6:00 AM
Editorial page staff, The Times-Picayune
http://www.nola.com/opinions/index.ssf/2010/09/remember_judge_thomas_porteous.html
7 Anonymously Yours
1, September 21, 2010 at 9:30 am
eniobob,
If that is true and I am not saying that its not….Should that not have come out before? I think if the FBI did its job and I am sure did it well…this stuff woulda raised brows then….why is it only after…the others….have been taken down….that they now seek to take there own boy down….something about this just does not seem right….I am not saying he did not do it….but why isn’t the DOJ or State Attorney’s office going after him?
I have now reviewed the Proposed Findings of Fact submitted by Jon, Attorneys Schwartz, Aurzada, and Walsh dated October 1, 2010 and make the following observations:
1. As in a criminal jury trial, Jon submits that the burden of proof is on the House to prove its case on each of the four Articles of Impeachment. This means that should the proof be insufficient or inadequate to support each of the Articles, that the Senate should not vote to “convict”. In a real jury trial, at the conclusion of the government’s case in chief, the defense attorney would make a motion before the trial judge to direct a verdict of acquital based on the insufficency of evidence and that reasonable men could not differ that the government failed to prove its case. Of course, this is not a criminal trial and Jon is attempting to make that motion now during this pleading he filed.
2. A second argument is urged that based on the facts that came out during the trial, that they failed to meet the constitutional standard of “Treason, Bribery, or other high crimes and Misdemeanors”.
3. The standard of proof in a real criminal trial is that the evidence must satisfy the jury beyond a reasonable doubt that the Defendant committed the crimes alleged in the indictment. However, the standard of proof in an impeachment proceeding is left to “the consience of each Senator”. I am not certain what that means but Jonathan urges that the standard should be beyond a reasonable doubt. Jon argues that anything less would make it easier to impeach and remove a judge than to indict and convict based on the same facts in a criminal jury trial.
I’ll make further observations per each of the four Articles of Impeachment.
Article I:
Jon makes a strong argument that any considerations given to Judge Porteous by the attorneys was not a “quid pro quo” and was not done to influence the judge’s decisions. Jon draws support from a recent United States Supreme Court Ruling decided on June 24, 2010, styled Skilling v. U.S., 130 S.Ct. 2896, approximately three months before the 12 member Senate “trial” which began in September, 2010. Jon goes to great measures to select testimony from the hearing and the record that all of these men were personal friends and that no one really believed that any consideration given to the judge would influence his opinion favorably to the giver (pages 6-48).
Jon urges that the proof is insufficient to remove the judge because Article I does not allege Treason nor Bribery but relies upon the allegation that the judge is guilty of a high crime and misdemeanors. As the Senate knows, Judge Porteous was never charged with a criminal offense, neither felony (carrying a sentence of at least one year to serve in a state or federal penitentiary ) nor a misdemeanor (carrying a maximum sentence of up to 12 months in custody). The record supports that the Department of Justice declined to prosecute Judge Porteous in Federal Court. One can assume that the state jurisdiction also declined to prosecute Judge Porteous in state Court since he has not been charged nor convicted of a state crime.
Articles II-IV to follow in later blogs.
Frank
Scott B in DC,
That’s it in a nutshell.
I hope you don’t mind but I’m going to recommend that everybody copy your points 1 through 5 and email them to their Senator. If any senator thinks he/she in voting to convict is doing so in front of a public that hasn’t a clue … such emails could open their eyes and give them pause.
Ok… I read the brief… although I don’t understand why they are called “briefs” because there’s nothing brief about them, including this one. Here are my impressions:
1. Porteus and his friends are from a small town in Louisiana. Small towns are notorious for people being friendly with each other, knowing who each other is, their parents, their children, and being with each other every day. We are told that is the charm of being from a small town–although I don’t know much about that, I’m from this little city called Brooklyn!
They eat, fish, smoke cigarettes, and generally have fun together. Like friends do, if someone needs a little help, the hand goes in the pocket and out comes the money. Lunch money, cigarette money, whatever. It’s $10 here, $50 there… so what! Their friends!
2. Along with the small town atmosphere, someone forgot about the small town work ethic: do the job and do it right. “You’re guilty! Pay the fine and let’s go have some jambalaya!” Work is on the clock, fun for off the clock. Did someone say something about going fishing?
3. Forget what we say in public while in campaign mode. You’re a corrupt judge because how can you be impartial with all of this “friending” going on? Oh… I see… you ticked off one of our big businesses who was one of our friends. And since the court could not make them completely whole, we’re going to take it out on you, judge.
4. So it is off to the grand jury (the House of Representatives) where the congress critters can spin anything they want in an environment they control for their own purposes. Sure, we can spin this in such a manner to make the judge look bad, but then we wrap it in the American flag, apply the constitution, and pretend that we’re standing up for Truth, Justice, and the American Way.
5. When it comes time to peel away the Star Spangled layers of the case (the peal?), we find that no matter how much they dress up the pig, this case is still a pig and a judge who survived Katrina and the death of his wife is being made to pay because some congress critter is looking to make a statement on behalf of a business that, at the end of the day, does nothing for his constituency.
For a bit of levity before I return to my day job as a defense attorney, there’s an expression we use to say in the rural Mississippi delta:
“IT AIN’T THE SIZE OF THE DOG IN THE FIGHT, IT’S THE SIZE OF THE FIGHT IN THE DOG.”
Little bitty Jon vs. the most powerful collection of people on the planet earth….My money is on the Professor!
Frank Mascagni III :
This layman is thrilled to be a part of this discussion,and I too am aware of this historic event,and wish the Professor and his team the strength to endure.
Blouise and eniobob:
As ya’ll can tell, I don’t ” know much ’bout machinery”, as we used to say in the deep south! You faithful blogger-people will have to continue to forgive and indulge me as I work my way through this process. I have found this world very interesting as well and really enjoy the conversations with you. I have only recently entered this world when ny sons bought me a laptop computer several years ago. They were insisting that the old man enter this “new frontier”. Thank all of you for your patience with me. Frank
Lottakatz:
Thank you, I have found this case fascinating on a bunch of different levels. Professor Turley accepted my invitation in the summer of 2008 to address the Kentucky Association of Criminal Defense Lawyers and did a wonderful job. His passion for the law and his intellect of the subject matter was spellbounding. He returned to Kentucky in June, 2010 to address the Kentucky Bar Association and as you know, he is a powerful and dynamic speaker. We went to dinner and we spoke about his upcoming challenge in representing Judge Porteous.
I agree with him that the history of the constitution and the impeachment process would have to be strained to cover the judge’s actions prior to being seated as a federal judge. I am always troubled when either the legislative or executive branches of government impose their will and political power directed at the judicial branch. While I understand the concerns of the House and Senate, does this case reach the highest standards required to convict Jon’s client?
The current political climate and oppostion expressed by some outspoken legislators to recent rulings by the U.S. Supreme Court and some Courts of Appeal, alarm me. I don’t want a congress that can remove judges based on an unfavorable or different view that their personal political views as to what the law should be on a specific topic. It’s a “slippery slope” as is often quoted in judicial opinions.
This is history in the making and I am following it closely. I am a criminal defense attorney and certainly have my own bias in viewing the power of the government vs. a citizen charged with an offense. I don’t condone the actions of Judge Porteous, but I also don’t believe from a constitutional perspective that his actions reach the standard of conviction and removal by the senate. I am pulling for Jon and the defense team in overcoming the challenges that await them in the final phase before 100 senators.
Frank:
I believe this is the link.
http://mccaskill.senate.gov/?p=press_release&id=1088
Frank Mascagni III,
Good morning Frank
… as you can see from Lotta’s post, regulars on this blog read all your postings and appreciate your efforts to build our knowledge base and keep us current.
(hilite the URL (http) in your browser, then copy … then paste the copied URL into your posting and it will show up after you hit “submit”)
I read Mr. Mascagni’s collection of articles gleaned from the MSM and various news outlets on another thread and It seems that no-one either understood the case or cared about the issues raised by the defense. Lot’s of luck Professor and than you Frank for your due diligence in reporting.
POSTED ON SENATOR CLAIRE McCASKILL’S WEB SITE @ McCaskill.Senate.gov September 15, 2010. Review her site for more info, Frank
» NewsImpeachment Trial Committee Receives Evidence
Committee chaired by Sen. McCaskill must report to the Senate in writing a certified copy of the transcript of the proceedings and testimony taken
September 15, 2010 Pursuant to the United States Constitution, the Senate holds “the sole Power to try all Impeachments.” Impeachment trials in the Senate are rare; 15 impeachment trials have been completed over the 221-year history of the Senate, while three others terminated due to the resignation of the judges in question.
On March 11, 2010, the House of Representatives approved four articles of impeachment against Judge G. Thomas Porteous, Jr. of the U.S. District Court for the Eastern District of Louisiana. On March 17, 2010, the Senate organized for the impeachment trial of Judge Porteous. The Senate Impeachment Trial Committee is charged with receiving evidence and taking testimony on behalf of the entire Senate. The Committee must report “to the Senate in writing a certified copy of the transcript of the proceedings and testimony had and taken” by the Committee. In addition to a certified copy of the transcript of the proceedings and testimony, the Committee is authorized to report to the Senate a statement of facts that are uncontested and a summary, with appropriate references to the record, of evidence that the parties have introduced on contested issues of fact.
Click here to learn more: http
eniobob
1, October 5, 2010 at 8:53 am
Page 151:
Tell me if I am wrong,Says that everything was out there for the senate to see.
=======================================================
Nope, you’re not wrong … and the committee recommended confirmation
Page 151:
Tell me if I am wrong,Says that everything was out there for the senate to see.
WHAT?:
“Attorney Bill Morrison would not comment on the drug or gun charges again his client, saying he would not discuss the facts of the case publicly. “This is really a case between Judge Camp and his wife,” Morrison said. “It’s not a case about Judge Camp being a judge, it’s about Judge Camp being a husband.”
I Clarie at least provides the Lubricant….So what is it about Federal Judges…..
Federal Judge Arrested in Drug Case
Last Updated On: 10/4/2010 9:44:21 PM
ATLANTA — Federal Judge Jack Camp has been arrested as part of a Federal drug case.
Camp is a senior judge for the Northern District of Georgia and has presided over numerous high profile cases, including cases related to the Sidney Dorsey trials and Larry Lonchar.
According to a criminal complaint filed by the FBI, in Spring 2010 Judge Camp propositioned a confidential informant who was working as an exotic dancer at the Goldrush Show Bar on Metropolitan Parkway. Officials say, the confidential informant offered him a private dance in the VIP lounge. Camp bought one, officials say.
http://www.11alive.com/news/local/story.aspx?storyid=156991&catid=40