The U.S. Justice Department again showed how its protects its own in scandals involving government lawyers. The DOJ has long been notorious in refusing to seriously punish its own lawyers for wrongdoing while pushing the legal envelope on criminal charges against others. The slightest discrepancy in testimony or omission in reporting can bring a criminal charge from the DOJ. The DOJ is particularly keen in finding intentional violations or substitute for intent in federal rules — bending laws to the breaking point to secure indictments. However, when its attorneys are accused of facilitating torture or lying to the court or withholding evidence, the general response is a long investigation and then a slap on the wrist. This week is no exception. Waiting until late Thursday to inform Congress to guarantee a low media coverage, the DOJ announced that it had found no intentional violations by its attorneys in the failed prosecution of U.S. Senator Ted Stevens — despite the contrary finding made by an independent investigation. Instead, the investigation again offered rhetorical punishment as a substitute for true punishment — declaring that the attorneys were only guilty of “reckless professional misconduct.” As a result, Joseph Bottini will be suspended for only 40 days and James Goeke will be suspended for 15 days. Even that level of punishment is viewed as noteworthy for the DOJ given its prior history of whitewashing misconduct by its attorneys. Even the finding of misconduct and brief suspension was contested within the department by Terrence Berg, a lawyer with the department’s Professional Misconduct Review Unit.
Category: Lawyering
Brian Banks was a former high school football star when he was accused of rape by Wanetta Gibson. Gibson’s name was sealed as a rape victim while Banks was publicly accused as a rapist despite his insistence that it was consensual sex. It was his word against hers and prosecutors threatened him with life imprisonment if he went to trial, so he pleaded guilty to a rape that he did not commit. He spent five years in jail. When he was released he was surprised when his “victim” asked to befriend him on Facebook. She later admitted that she made the whole thing up but did not want to give back the $1.5 million that she won in a judgment against the school district for her alleged rape. She retains the money despite admitting to lying about the rape.
The United States has long been criticized for disregarding the sovereign rights of Pakistan and other countries in launching drone attacks and military operations. Now, Pakistan has responded with a reported lengthy sentencing of the Pakistani doctor, Shakil Afridi, who helped track down Osama Bin Laden as guilty of “high treason.”
We have been following the outrageously abusive fines being imposed on citizens for downloading and sharing songs — obscenely large fines allowed by Congress under laws written by lobbyists for the music and movie industries. Law firms have been targeting even people who try to inform citizens of their rights. Now, in one of the most abusive cases involving a former Boston university student, the Supreme Court has refused to review a $675,000 fine against Joel Tenenbaum, 28, for downloading and sharing 30 songs. Despite the general condemnation of these actions, Congress is cowed by pressure from the industry lobby. The most abusive litigation is directed by the Recording Industry Association of America.
Richard Celler of Morgan & Morgan has a rather unique approach to depositions. Celler was removed from a case by U.S. District Judge Cecilia Altonaga after scheduling depositions at a Dunkin’ Donut shop, appearing in shorts and teeshirts, drawing pictures of male genitalia to mock opposing counsel, and playing video games like Angry Birds during depositions. This case in Miami shows another recent case of a lawyer in Texas who was charged with sanctionable conduct for a bizarre series of emails to opposing counsel concerning the scheduling of depositions. I thought I had been in some heated depositions in my career, but I now feel like a mere piker practicioner.
Spencer Freeman Smith, 32, a partner at the San Francisco firm of Smith Patten was arrested this week on suspicion of felony hit-and-run and manslaughter in connection with the death and hit-and-run of Bo Hu, 57, of China, who was bicycling along a road when he was hit by a Mercedes-Benz. Police traced pieces of Smith’s brand new 2012 Mercedes-Benz CLS550 to his home.
Judge Gustin Reichbach of Brooklyn has written an extraordinary op-ed in the New York Times where he admits to breaking the law by using marijuana to relieve his suffering from Stage 3 pancreatic cancer. New York does not allow such use of marijuana and the Obama Administration has been cracking down with raids and arrests over the use of medical marijuana. Reichbach details how, with cancer treatment, “Nausea and pain are constant companions. ” As a result, “I did not foresee that after having dedicated myself for 40 years to a life of the law, including more than two decades as a New York State judge, my quest for ameliorative and palliative care would lead me to marijuana.” But his admits that he came to rely on the drug and has added his voice to thousands who defend the use of medical marijuana. He is a justice of the State Supreme Court in Brooklyn.
Continue reading “New York Judge Admits To Using Medical Marijuana To Relieve Pain From Cancer”
The evidence for the trial of George Zimmerman is slowly taking form. Yesterday, a medical report was disclosed by the family physician of George Zimmerman where the doctor found a “closed fracture” of his nose, a pair of black eyes, two lacerations to the back of his head and a minor back injury the day after he fatally shot Trayvon Martin. While this is the family physician, it would still constitute important evidence in claiming self-defense, particularly when combined with accounts from the paramedics that found injuries to Zimmerman. An autopsy report released today also revealed bruises on Martin’s knuckles, consistent with a fight (though they could be bruises sustained in self-defense). In the meantime, the Justice Department has indicated that it may bring hate crime charges against Zimmerman — charges that would be questionable on the current evidence that has been made public in the case.
Continue reading “Medical Report On Zimmerman Shows Broken Nose, Lacerations, and Back Injury”
Chief Deputy Commonwealth’s Attorney Tracy Thorne-Begland appears to have been successful in every aspect of his life: as a Navy fighter-pilot, a top prosecutor, and the father to two twin children. With bipartisan support he would have appeared a shoe in for a state judgeship. However, he was denied in a vote of 33-31 by the Virginia House of Delegates because of one other fact — Thorne-Begland is gay. For gays and lesbians, the state seal (which is my favorite among the states) now has a more sinister meaning.
Continue reading “Virginia Blocks Gay Prosecutor From State Court”
Litigation Zen Masters take note: The New Hampshire Supreme Court has answered that mind-numbing question: if a lawyer speaks in a public room but no one (other than his client) can hear him, is the statement privileged? The answer appears to be yes. The Supreme Court ruled that the New Hampshire Local Government Center could refuse to redact the minutes for 14 meetings over a 10-year-period because there were no third parties present during statements by counsel.
We previously discussed the rather shocking treatment Seventh Circuit Judge Richard Posner gave an ACLU lawyer over the right of citizens to videotape police in public. As discussed in prior columns and blogs, police across the country have been arresting citizens who film them — a clear abuse of their rights and an effort to prevent citizens from creating incriminating videotapes increasingly used against police. The Seventh Circuit has now barred the use of the law to prosecute citizens for videotaping. Posner dissented and showed, again, a dismissive view of the rights of the citizens vis-a-vis police. The court majority slams State’s Attorney Anita Alvarez for her extreme views expressed in the case and effort to strip videotaping of constitutional protections.
In our trial practice classes, our students are trained on how to move the court for procedural and evidentiary rulings. Next year we should post this picture for students to learn the perfect pleading pose. It came to mind after reading the charges against a public defender Therese Cesar Garza who was accused of yelling at judges who ruled against her on motions and saying “shit” in court.
Cheryl Bormann, counsel for defendant Walid bin Attash, has created a stir over wearing a hijab to the military tribunal and asking other women to cover up out of respect of the Muslim sensibilities for the defendants. I have received a fair number of calls on this from reporters and lawyers due to my past representation of Muslims in national security cases. I believe the display was a professional and tactical mistake and I would not want someone on my team to try to make such an extreme accommodation to a client.
Respectfully submitted by Lawrence Rafferty (rafflaw)-Guest Blogger
We haven’t heard his name for quite some time now, but former Bush-era Office of Legal Counsel attorney, John Yoo is in the news again. The United States 9th Circuit Court of Appeals threw out an appeal by convicted terrorist, Jose Padilla attempting to hold Yoo liable for the torture used on Padilla while in U.S. detention centers.
Believe it or not, the Justices stated that the law on what constituted torture was not clear when Padilla endured the Bush Enhanced Interrogation methods. “A three-judge panel of the court said laws governing combatants and the definition of torture were unclear during the years policies were crafted. Padilla alleged he was subjected to death threats, given psychotropic drugs, shackled and manacled for hours at a time, denied contact with family or a lawyer for 21 months and refused medical care for potentially life-threatening conditions. “That such treatment was torture was not clearly established in 2001-03,” Judge Raymond C. Fisher, a Clinton appointee, wrote for the court.” LA Times Continue reading “Shame on Yoo”
Submitted by: Mike Spindell, guest blogger
The following link was sent to me by Otteray Scribe, who is among the most erudite and respected people among those who frequently comment on this blog. He is an extremely well educated man, with masterful writing ability and a creatively active mind. The title of his E mail to me and the other guest bloggers was WTF? and this is what he wrote:
“This is beyond strange. Horace Boothroyd III is disabled and apparently has nothing to do but sit at his computer. He monitors everything going on regarding OWS and police misconduct. I won’t try to describe this, but it is more than passing strange. Might be worth following up.”
http://www.dailykos.com/story/2012/05/03/1088516/-Occupy-Minnesota-WTF-Cops-picking-up-sober-Occupiers-and-Drugging-them-for-Training-
When someone who I like and respect as much as I do Otteray Scribe, is at a loss for words to describe something, I take notice. When I clicked the link and read this story from Daily Kos, my own reaction mirrored his: WTF? It took me more than twelve hours to respond to his E mail because I needed to let it gestate in my own mind and figure out just what to write about.
Rather than me regurgitating the story I think it is an important one for the readers to view for themselves and present their own take on the why, wherefore and implications inherent in the story.
While allowing you make your own judgments, let me give my bottom line opinion on all of the issues and questions the story raises and let’s see what you the reader makes of it on your own. I believe that the actions detailed in this story are indicative of our beloved America fast moving towards becoming a police state, in the same manner that the USSR, its successor Russia and China are police states. That is that all protest against the status quo is to be repressed. The police/security/intelligence/military forces are not only to act as agents of this repression, in many instances on their own volition without sanction, but also are taking part in the use of counter-insurgency techniques towards those elements within the society deemed dangerous to the status quo. In the minds of those in power openly and behind the scenes the question of what is threatening to the country is in most instances a self-serving rationale for what is politically/economically threatening to them. We must ask ourselves are we to be mere observers meekly silent for fear of our own security, or will we act openly to oppose the destruction of the Constitution of the United States and with it our rights and freedoms?