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
Frank,
Thank you for the link. The difference between Canadian and American opinion is interesting. I wonder what mespo thinks. Buddha is off on a grand adventure but hopefully he’ll check in and give us his thoughts.
Don’t know about mespo’s Italianate (though I have my suspicions). I am 100% Scot.
The only place I have any desire to visit is Italy … I have no idea from whence that desire sprang but there it is. Perhaps I should contact one of the witches currently running for a seat in the Senate to read any past lives auras I may have floating around my head to see if, once upon a time, I was Italian. I’d like to spend a minimum of three weeks there with a week over and another back on-board ship … I keep waiting for my husband to surprise me with the trip!
Regarding Italian operas: Cavalleria Rusticana was written and composed by Pietro Mascagni introduced to the world in 1890 in Rome. The Intermezzo was played in 1980 in Raging Bull and in 1990 in The Godfather Part III. http://en.wikipedia.org/wiki/Pietro_Mascagni
Andrea Bocelli sang a song by the title of “Mascagni” in one of his recent CDs. http://www.youtube.com/watch?v=eeqSqWItnEg
I’ll attempt to bring a little culture into this blog to divert us from the serious matters of the day. Frank
mespo727272 & Blouise:
Thanks for your generous comments. I’m the proud grandson of two Italian immigrants, Frank Mascagni and Ida Gentilini from Bologna, Italy. Came to America in 1896 by boat. Indentured servants, dropped off in Tontitown, AR to farm and pay for their passage. Left by mule and wagon to Greenville, MS and farmed there.
You may not know, but Jon is 1/2 Sicilian and 1/2 Irish. Explains his passion. We eat at Italian restaurants when he is in Kentucky( he’s a good eater). Am I to assume my fellow bloggers are Italian?
Regarding cameras in the courtroom: See article in USA TODAY, October 6, 2010 at page 21A:
http://www.usatoday.com/news/opinion/forum/2010-10-06-column06_ST1_N.htm
Frank
mespo727272
1, October 7, 2010 at 7:43 am
Blouise:
“Frank’s a honey … we have to figure out a way to keep him!”
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Well, after all, he is an American of Italian descent!
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A nice chianti and some lovingly prepared pasta … lots of sunshine peeking through the pergola… good conversation … a little opera in the background … handsome women at his feet … espresso … that should do it! (cigars?)
Blouise:
“Frank’s a honey … we have to figure out a way to keep him!”
******************
Well, after all, he is an American of Italian descent!
mespo,
Although I had never given it much thought up until now, I certainly understand your point regarding cameras and would have to agree … however that particular cast of Senate characters was talentless … an ensemble of bad actors deserving of my rotten reviews. The entire run should be closed and all monies refunded. Rotten eggs and cabbages are all they deserve!
Frank’s a honey … we have to figure out a way to keep him!
Frank:
Thank you, Frank, for your continued interest in the case and this blog and your many fine contributions.
Blouise:
I agree that the tone set by many Senators in that trial was less than impartial. However, it mus be remembered these are not jurists but political animals for whom perception is reality. Appearing weak in the face of obvious misconduct carries a price. This is why I adamantly oppose cameras being present in any deliberative body. Cameras tend to make everyone an actor who must pander to that eye in the sky. While I surely do not advocate secrecy, I do advocate leaving the dynamic of the room intact without the ever present urge to play to the public at large who may be only casually aware of the proceedings. These issues deserve the undivided attention and consideration of the decision-makers. Cameras make sure that can’t happen.
Blouise:
As you know, I share your frustration with this system. I hate it when I have to appear before certain state and federal judges, who I don’t really believe will give my client a fair trial! I respect the system but not necessarily the individual judge.
I believe that I respect the “system” of the impeachment process, but I am seriously offended by the so-called “trial” I watched on CSPAN. I expected that Judge Porteous would receive a fair hearing. He did not, in my humble opinion. The senators were not netural fact-finders, the chair’s “rulings” were not equihanded, and they displayed a bias in their questions and comments.
That being said, I think the defense team made a good record in the face of this adversity and I hope each senator will review the record and not be predisposed before they consider the case in toto. Certainly they will be offended by the allegations and certain acts on the judge, but do they rise to the level to convict as “high crimes and misdemeanors”? I submit they do not. My problem with this entire process is the failure of the United States to charge the judge in criminal court and let him face his accusors there, rather than years later in this process.
I am certain Jon and team will continue to do the best they can in spite of the overwhelming odds.
mespo727272 and blouise:
“Conscience: the faculty of recognizing the difference between right and wrong with regard to one’s conduct coupled with a sense that one should act accordingly.”….Webster’s dictionary.
Assuming 100 senators will be present, each will have to follow his or her “conscience” and vote to convict or not. This is a unique standard, foreign to the criminal justice system, per se.
Whether the acts of the judge are illegal or not, are they: unethical, unprofessional, questionable, inappropiate, corrupt, misguided, display a lack of judgment, self-serving, suspect, unbecoming, do they bring the bench and bar into disrepute, do they have the appearence of improperity, are they offensive, do they pass the smell test, are they politically incorrect, etc., etc.?
This is an unclear standard to me. But as many scholars have noted in attempting to describe pornography; : “I know it when I see it.”
We are not in a court of law, but rather in front of 100 individuals that are politicans, that are not “jurors of my [the judges] peers”. They have to return to their home states after the vote (if they are still in office) and explain their vote, if asked, to the voters. This is a different dynamic going on here. This is raw politics. The senate confirmed the judge in 1994 and now are called upon to remove him or not based on whether or not he violated his constitutional office.
Frank,
I have tried very hard throughout this process to listen to all the evidence presented without giving undo weight to either side. By undo weight I’m referring to the prominence of the defense lawyers and the public stature of the Senators. I also have had to keep a reign on my partisanship which leans towards the democrats.
After all was said and done, I expected to come down firmly on one side or the other. But something unexpected happened along the way. In my mind Porteous is no longer the one on trial … the system has become the issue.
I understand what mespo means when he writes that ” … remind Judges that judgement is the indispensible part of the job.” and I agree with him. But after watching the behavior of the Senators on that “Trial Committee” I see no value or benefit to their reminding anyone of anything other than “poor judgement is us”.
Finally to the mix I add the shadow of a large corporation offering $100,000 incentive bonuses and my “reasonable doubt” of this process climbs.
I suspect, barring any additional information that may be forthcoming, that my final vote will be a big sign in flashing red lights SYSTEM FAILURE! SYSTEM FAILURE!
Blouise:
Here is my understanding of events of the past several years:
1. Judge Porteous was the subject of a criminal investigation by both the federal, state and local authorities. For reasons that are not entirely clear to me, he was not indicted nor charged by the state of Louisiana nor by the Federal Government, by the United States Attorney’s Office for the Eastern District of Louisiana.
2. He was censured by the Fifth Circuit Special Investigatory Committee after hearings held October 29-30, 2007. Subsequently, he was prohibited from presiding over cases for a period of two years (September 2008-September 2010) and that suspension was recently expanded through December 2010. He still is drawing a pay check of approximately $174,000.00 annually and I assume building up credit against his federal retirement package.
3. He has announced that he will retire in 2011 whether he is convicted by the Senate or not.
4. I have not seen anything to confirm that he has been censured by any governing ethical authority over lawyer/judge disciplinary matters for any ethical charges levied by the Louisiana Bar Association, or its counterpart, if there is one, that disciplines federal judges for violations of judicial canons, in the Eastern District of Louisiana.
5. The sole issue as I see it is the power of the legislative branch of government to confirm appointments made by the executive branch of government and the power of the legislative branch of government to impeach and convict a federal judge for misconduct while being an “employee” of the federal government. At least part of the executive branch of government (Department of Justice) has exercised its discretion not to indict Judge Porteous for his alleged criminal behavior.
6. It appears to me that the only thing Judge Porteous is trying to salvage at this point is his federal pension.
7. It appears that Judge Porteous has gone through several attorneys: Kyle Schonekas through July 5, 2007, Michael H. Ellis, through 2 weeks prior to the Fifth Circuit Special Investigatory Committee Hearing and Judge Porteous represented himself without counsel in October 2007. Judge Porteous had other counsel over the past prior to retaining Jonathan Turley and the law firm of Bryan Cave, LLP.
8. The 12 member Senate Committee that presided over the “trial” will prepare a report and submit it to the full Senate on or before November 15, 2010. Then a proceeding will be held in front of the full Senate wherein both sides to the litigation will be allotted two hours each to present their arguments for and against a conviction and removal of the federal judge which the Senate approved his confirmation in 1994. (President Clinton nominated Judge Porteous on August 25, 1994.)
The House voted to impeach Judge Porteous by unanimous vote of all legislators present at the time the vote was taken. I would speculate based on the views expressed by the 12 member Senate trial committee that the vast majority of the full senate will vote to convict Judge Porteous based on the record that it will have before it prior to calling for a vote.
The mitigating factors of the judges age (63), loss of his wife on December 22, 2005, destruction of his home during Hurricane Katrina, filing for bankruptcy, his seeking of mental health treatment in 2006, denial of his petition for a certificate of disability filed in May 2006 by the Fifth Circuit Court of Appeals, being censured by the Fifth Circuit, having been unable to perform his job as a federal judge for the last two years (extended through December 2010), and finally his announcement of retirement in 2011 are simply that: mitigating factors for the Senate to consider (if to be considered at all).
It does not look good for Judge Porteous. Jon will have to convince 34/100 senators not to convict and remove the judge from the bench permanently. An appropriate biblical analogy would be David vs. Goliath, 1 Samuel 17: David reached into his bag and slung one of his stones at Goliath’s head. Jonathan will need to reach deeply into his bag and be incredibly accurate with his aim.
Frank
mespo,
Point taken … (forgive the following repetition but if I have a glaring misunderstanding, please take a moment to correct me.)
The Justice system, in this case, was unwilling to bring charges due to “reasonable doubt” so the “political system” kicked in because reasonable doubt is not a standard to which they are held. They, the Senate, may convict without concern for the reasonable doubt standard because Impeachment is not a criminal proceeding. The standard is 3/4 (super-majority) to convict which is higher than a civil proceeding.
The Constitution refers to impeachable offenses as “treason, bribery, or other high crimes and misdemeanors,” which, in addition to treason and bribery, may mean criminal behavior, ethics violations, rules violations, abuse of power, etc. An official may be impeached for something that isn’t illegal, but is still considered misconduct by members of the House.
Members of the Senate fill the roles of judge and jury. At the conclusion of the trial, the Senate votes whether to convict. Conviction requires a two-thirds super-majority; otherwise, the official is acquitted and may continue performing in his or her official capacity. (In the case of Judge Porteous who has resigned, the benefit of an acquittal is that he will keep his pension.)
I watched the “trial” and, mespo, I gotta say I never saw anything as biased as that particular group of Senators. In my opinion that trial was conducted in a manner that mimicked some of the very things in the charges against Porteous. In many ways it was a sham … one wouldn’t be exaggerating if one used the word “kangaroo” in that the proceedings were a set-up in order to give the impression of a fair process, rather than actually give the accused a fair hearing. There was little impartiality as if all had been decided in advance. This “we’re just going through the motions” attitude was present everyday as the Committee struggled to get even the minimum 7 Senators to attend.
So in the end, the “justice system” could not bring charges due to reasonable doubt and the “political system” could only provide a sham trial. I’m not certain that this is a second chance that does any good at all.
mespo727272:
Thanks for your excellent evaluation of Jon’s pleading. I have approached this from the view of a criminal defense attorney. The senate will approach it from the political view of a man who interviewed for the job and was less than candid. I agree that it is a civil proceeding (job termination) vs. loss of freedom (criminal law standard). I also agree that conscience of the senator is a standard less than proof beyond a reasonable doubt. Jon certainly has his work cut out for himself.
Sometimes in a criminal trial when a witness is hurting you, all you can do on cross is pick at inconsistent details or prior inconsistent statements; challenge their memory or expose their motivitation for not telling the truth. And to use whatever he uncovered in closing statement to weave a reasonable doubt. Jon had some tough witnesses to cross!
In a criminal trial, if I get 1/12 not to vote ” not guilty”, the jury is hung and my client is not convicted. Here, Jon has to convince 34/100 not to convict on 4 separate “charges” by 4 separate votes. A tall task indeed for the Professor. Thanks for your observations.
I don’t see this as a Titanic battle between the branches of government with the legislative branch intimidating the judicial branch. I see this as recognition of the ethical quagmire that is the Louisiana legal system and a belated attempt to clean it up. Rule one of judgeship is you don’t take “gifts” from lawyers, litigants, and those over whom you have the power of to render decisions. Judge Porteous knew that rule despite his excuses that “everybody does it.” Regardless of our host’s persuasive arguments, impeachment does not require proof beyond all reasonable doubt, merely proof satisfactory to the individual Senators. It’s a civil process for firing a Judge, not a criminal one to punish him despite the standard being “high crimes and misdemeansors.” As for the DOJ, they have their reasons (likely their inability to prove the case beyond a resonable doubt)and that should not, in any way, hinder Congress from exercising its Constitutional prerogatives. DOJ may have handed the Senate a white envelope (or more likely passed the buck), but Congress sanctioned the judgeship, and Congress can take it away regardless of the sentiments of DOJ. Is is really a criticism of the system that we get two bites at the apple to remove a corrupt judge or one with incredible lapses in judgment? Some -myself included- consider it a virtue to get a second chance to remind Judges that judgement is the indispensible part of the job.
mespo727272,
If prosecutors were not comfortable enough to bring charges in a court of law … how comfortable should a Senator be in using the Constitution as “Plan B”?
It’s rather like the Justice Department handed the Congress a plain white envelope … and we know what that usually means too.
Finally here’s the testimony that bothers me the most:
“Danos, who served for 24 years as Porteous’ legal secretary, was asked about the time Porteous, while a federal judge in 1999, asked her to pick up an envelope from Amato.
She said she traveled to Amato’s office, and asked the attorney’s secretary to bring the envelope to her car. She said that when she asked the secretary what was in the envelope, the secretary just rolled her eyes.
“I said never mind. I don’t want to know,” Danos said.
House members, who are serving as prosecutors in the impeachment proceeding, said the envelope contained $2,000 to $2,500 in cash to cover Porteous’ share of costs for his son’s wedding. At the time, Amato was part of a group of lawyers involved in a complicated legal dispute over ownership of a Jefferson Parish hospital that Porteous was deciding.”
I don’t know what was in the envelope either, but I know what getting something in a nondesript white envelope and picked up by a Judge’s long-time legal secretary usually means.
{My thoughts} on Frank’s thoughts about the proposed statement of facts:
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. [Irrelevant argument, someone has to be first if the charge exists and it is of no moment who that first person is or why he’s first unless some selective prosecution is alleged]
Jon points out that during the FBI interview that the agent testified that the judge was not placed under oath, [Not required elsewise, it’s perjury not giving a false statement]
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.[Also not required to sustain the violation, but probbaly good practice]
The agent futher testified there was no audio nor video tape made of the interviews. [Again neither are required to sustain the charge and it does not suggest that the Judge’s statements were not false, only not recorded]
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. {Exactly right Frank, and that’s the problem — it looks contrived. Most statements given to the FBI aren’t recorded. Would you really expect a need for that when talking to an honest federal judge?]
Judge Porteous is a victim of the propensity of the state to load on charges and multiply the level of potential wrongdoing to secure a guilt verdict on something, anything. This is done for o reason other than to secure convictions and is the state gaming the system. It’s a disreputable practice and driven by a desire IMO, to persecute rather than prosecute.
The only charge that I find significant is the bankruptcy filing. I can only postulate that the other charges were loaded on in an effort to allow the Senate committee (and later the entire Senate) to impeach in spite of the guidelines.
Thanks again Frank for your reporting and analysis.
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Scott B in DC: “Ok… I read the brief… although I don’t understand why they are called “briefs” because there’s nothing brief about them,…”
Great analysis and Blouise is right, the pints made should be sent to the committee members. McCaskill is my Senator so I have her contact info in my email ‘contact’ folder.
Scott: When I was in the world and writing briefs was part of my job some of them were very lengthy affairs, some cases drug on for years through several levels of appeal so occasionally mine went out in a box and the opposers’ were served on us in a box. Always a thrilling moment to open a box filed with a brief and supporting docs.
One of the people in the office once observed upon seeing such a work product unveiled, “Daaaaamn, if that’s a ‘brief’ I’d hate to see a ‘long’. 🙂
eniobob: Thank you. I hope it’s helpful.
To my fellow bloggers (if that is the correct reference):
Sorry for the typos and misspellings, I wanted to get this posted by the end of the day. Should have proof read it before hitting submit. Buddha where are you?