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Thursday, January 31, 2008

NY Times Editorial on AG Mukasey (MORE, CLICK HERE)

A Disappointing Debut
The New York Times - January 31, 2008 - EDITORIAL

About the best we can say about Attorney General Michael Mukasey’s testimony Wednesday in the Senate is that he was no Alberto Gonzales, with the frequent memory lapses and possibly intentional misstatements. But that is a very low bar. On torture, domestic spying and other important matters, Mr. Mukasey parroted the Bush administration’s deplorable line. He was particularly disappointing in his see-no-evil approach to the misconduct at the Justice Department before he arrived.

The American people deserve better from their highest law-enforcement official, who was making his first appearance before the Senate Judiciary Committee since taking office in November. To a disturbing degree, he has adopted his predecessor’s habit of saying precisely what the White House wanted to hear.

It should not have been hard for Mr. Mukasey to admit that waterboarding — the odious practice of making prisoners believe they are about to be drowned — is torture. He frankly conceded that if it were done to him it “would feel that way.” But he weaved and dodged questions from senators about whether it is torture when it is done to other people, and whether it is illegal.

Mr. Mukasey also pushed Congress to give immunity to telecommunications companies for any illegal acts they committed while helping the administration carry out its outlaw domestic spying program. Mr. Mukasey is responsible for enforcing the law. Pushing Congress to immunize lawbreakers, especially before it learns what laws were broken, is inconsistent with this duty.

Mr. Mukasey took office in the wake of a scandal — accusations that federal prosecutions were politicized, that nonpolitical positions were filled with partisans and that Mr. Gonzales lied about it to Congress. These serious charges did not go away simply because Mr. Gonzales did. Mr. Mukasey needs to ensure that they are investigated, and to assure the public that any misconduct in his department has been cleaned up.

He has yet to do so. In his written testimony, Mr. Mukasey ignored the scandal that roiled his department last year. His answers to questions from senators on the subject were lackadaisical. He seemed to know and care little about well-publicized charges by Scott Bloch, the chief of the Office of Special Counsel, that the Justice Department is impeding his investigation.

Mr. Mukasey was equally disappointing about the refusal of certain administration witnesses to answer Congressional subpoenas to testify about the United States attorneys scandal. He suggested that if the administration believes that executive privilege shields them, that ends the matter. He could not be more mistaken.

Mr. Mukasey has taken some important steps to depoliticize the Justice Department, notably establishing a better wall between the White House and the department. His testimony was an unfortunate reminder, however, that he has yet to show the independence and respect for the rule of law that the job requires.

The New York Times Company

Fake Lawyer Earned Real 225k as Staff Attorney (MORE, CLICK HERE)

BOGUS ATT'Y TAKES A TRIP
The New York Post By LAURA ITALIANO - January 31, 2008 -- Brian Valery loved being a lawyer.

He worked as much as 70 hours a week at one of the city's top insurance-litigation firms for two years, helping some 50 clients win cases. Valery even earned an annual salary of $155,000. But there was one problem: Valery wasn't a lawyer. He hadn't even attended law school.

Valery, 33, of Massapequa Park, LI, stood yesterday before a Manhattan judge, who sentenced him to five years of probation for pulling off the elaborate masquerade. "I guess he got away with it so long because he was so talented, and so hardworking," said Valery's lawyer, Bob LaRusso. "He worked 60, 70 hours a week. He worked longer hours than I ever did."

The punishment came after it was discovered that Valery had fibbed his way up the ladder at insurance-litigation heavyweight Anderson Kill & Olick - going from a lowly, $21,000-a-year paralegal to earning $155,000 as a staff attorney.

By the time he got caught - after a friend saw his name in connection with a big liability case involving the painkiller OxyContin, and did some digging - he'd helped some 50 clients at the 130-lawyer firm.

Valery's ruse was as time-consuming as it was intricate. He'd begun by telling his trusting bosses he was attending Fordham Law School. Truth was, he didn't even possess an undergraduate degree. Bizarrely, Valery twice told his bosses he'd flunked the bar, only to give them the good news of his "passing" in 2003 - all of it untrue.

Yesterday, Valery was calm during his brief sentencing - but flipped out when he saw photographers waiting outside.
He nearly got run over by a car as he dashed across Lafayette Street, then slipped and fell to his knees while attempting to bob and weave evasively on the rain-slicked sidewalk. "Leave me alone! Leave me alone!" he shouted.

In addition to probation, Valery has to pay back $225,000 in ill-gotten salary to the firm, and serve 100 hours of community service.

laura.italiano@nypost.com

Wednesday, January 30, 2008

Fraud Counts against Westchester Law Firm Continue, says Federal Judge (MORE, CLICK HERE)

NY Firm Faces Allegations of Double-Crossing Embattled Client
by Beth Bar - New York Lawyer - January 30, 2008

Stressing that the case raised "important issues concerning the integrity of the bankruptcy process," a federal bankruptcy judge in Manhattan has declined to dismiss claims by a trustee against a Westchester-based law firm.

In In re Food Management Group (Grubin v. Rattet), 04-22880, Judge Martin Glenn ruled that allegations of fraudulent concealment, breach of fiduciary duty, negligence and fraud on the court could proceed against attorneys Robert L. Rattet and Jonathan S. Pasternak, as well as the law firm Rattet, Pasternak & Gordon Oliver.

The lawyers and the firm are accused of failing to disclose that an "insider" of debtor Food Management Group had violated a court order by submitting a bid in the auction of the company's assets.

The trustee also alleged that the lawyers improperly failed to disclose that they had represented one of the insiders before the auction.

Judge Glenn said that if the allegations are proven, the attorneys and their firm engaged in "serious wrongdoing."

"We deny liability," John Collen of Quarles & Brady in Chicago, who represents the lawyers, said in an interview yesterday. "The decision merely requires us to answer a complaint. It does not contain any findings of liability or wrongdoing."

He declined to elaborate further.

The lawyers were hired to represent Food Management, which managed 24 Dunkin' Donuts franchises when it filed for bankruptcy on June 1, 2004.

Janice E. Grubin, Food Management's chapter 11 trustee, filed her complaint against the firm and a host of other parties in February 2007. She is seeking to recover damages arising from what she said was an unlawful scheme by the lawyers, their firm and others who "colluded to effect a fraudulent sale of [bankruptcy] estate assets to and for the benefit of [Food Management's] principals, Anastasios Gianopoulos and Constantine Gianopoulos . . . without disclosing such to the Court."

The Gianopouloses had been sued by Dunkin' Donuts in 2000 for failure to pay franchise fees. As part of an Oct. 18, 2002, settlement of that case, the Gianopouloses agreed not to have any further involvement, directly or indirectly, with Dunkin' Donuts franchises. But Ms. Grubin said Messrs. Rattet and Pasternak and their firm helped the Gianopouloses get around this agreement.

The lawyers filed a motion on Jan. 11, 2005, on behalf of Food Management seeking authorization to conduct an auction of the debtors' property. Judge Glenn granted the motion on Feb. 22, 2005.

"The Bidding Procedures provided that any offer be 'a good faith, bona fide, offer to purchase' and required that each bidder 'fully disclose the identity of each entity that will be bidding for a[n] Asset or otherwise participating in such a bid, and the complete terms of any such participation,' and that each bidder submit a registration form certifying that the bidder was not an insider of the Debtors," Judge Glenn explained in his decision.

But Ms. Grubin alleged that between March 1 and March 16, 2005, the attorneys and firm had discussions with the Gianopouloses concerning the sale of Food Management's assets. She said that Thomas Borek, a principal of a company called 64 East who had been a Rattet Pasternak client, was present at the March 16 meeting.

Meanwhile, 64 East was one of the two companies that bid. Dunkin Donuts ultimately rejected 64 East's bid, and the trustee said that without her consent Mr. Rattet attempted to have Mr. Borek's $2.1 million returned to him. She also charges that the law firm concealed the fact that 64 East was a front for the Gianopouloses and that they had funded the deposit.

"The Debtors have suffered damages as a direct result of the fraudulent concealment in that the $2.1 million would not have been returned to 64 East had . . . Rattet and the Rattet Law Firm complied with their duties as officers of the Court and disclosed the agreement with 64 East concerning the purchase of Debtors' property," Ms. Grubin alleged in her complaint. "Rather, those funds would have been retained by the Trustee and made available to satisfy the allowed claims of creditors."

According to the decision, in September 2005, Ms. Grubin ordered the lawyers to have "no further involvement in the case."

She is asking Judge Glenn to hold the Gianopouloses, the law firm and the attorneys jointly and severally liable for at least $2.1 million. The trustee is also seeking punitive damages and the disgorgement of all compensation paid to the attorneys.

Judge Glenn took no position on the merits but ruled the trustee had standing to bring the action and had presented sufficient facts to survive the motion to dismiss.

In addition to Mr. Collen, Messrs. Rattet and Pasternak and their firm are represented by Gil M. Coogler of White Fleischner & Fino in Manhattan.

Ms. Grubin and the debtors are represented by Warren von Credo Baker of Drinker Biddle & Reath in Chicago. Mr. Baker declined to comment.

Tuesday, January 29, 2008

Judge Confiscates Transcripts: Funny Business as Usual (MORE, CLICK HERE)

Unsealed, Uncontested Court Records “Confiscated” by Judge Herman Cahn and withheld by Judge Bernard Fried With the Apparent Collusion of Administrative Judge Jacqueline Silbermann. So Says William Galison. And Mr. Galison has a lot more to say on what appears to be just another miscarriage of justice:

This matter regards the wanton violation of 14th amendment rights and section 216.01 of the Unified Rules for NYS trial courts by Judges Herman Cahn and Bernard Fried, with the apparent collusion of Judge Jacqueline Silbermann, all of the New York Civil Supreme Court, First Department. Specifically, this matter involves the illegal confiscation of public record transcripts from the public record and from one litigant with no due process of law.

The underlying case is a libel lawsuit by William Galison, a professional musician, brought against Jeffrey Greenberg, a lawyer from the firm of Beldock, Levine and Hoffman.

In the course of pre-trial hearings, Judge Cahn held an ex parte conference with Greenberg’s lawyers, and on the basis of that meeting, issued a protective order against Galison. Cahn gave no explanation to Galison as to the reason for the protective order, and despite Galison’s numerous requests has refused to furnish the transcripts of the ex parte meeting to Galison for over two years.

THE CONFISCATION OF UNSEALED PUBLIC RECORD COURT DOCUMENTS FROM ONE PARTY IN A COURT PROCEEDING IS A VIOLATION OF CONSTITUTIONAL AND STATE LAW BY JUDGES IN THE NEW YORK SUPREME COURT UNPRECEDENTED IN THE HISTORY OF THE COURT.

The motivation of Greenberg’s lawyers in defaming Galison is as transparent as it is reprehensible. Galison sued Greenberg because Greenberg wrote and published the false allegation that Galison had “physically abused” Greenberg’s client. Greenberg made this allegation despite his client’s sworn testimony that Galison never harmed her in any way, and that she had never told Greenberg or anyone else that he had done so. In the ex parte meeting, Greenberg’s lawyers falsely told Judge Cahn that Galison posed a threat to THEM in order to prejudice Cahn against Galison and his libel claim.

Of course, the right to obtain court transcripts in one’s own case is a fundamental pillar of the justice system, especially when those transcripts contain ex parte allegations and evidence that have lead to sanctions. In essence, Mr. Galison was accused, tried, sentenced and punished without knowledge of the charges, the evidence or the argument against him, and with no opportunity whatsoever to defend himself..

THERE ARE NO CONTESTED FACTS IN THIS MATTER

Judge Cahn does not contest the fact that he had an ex parte meeting, that he placed a restraining order on Galison, or that he confiscated the transcripts without due process. In fact, there are NO contested FACTS at issue in this matter. The ONLY question at issue is whether or not New York Supreme Court judges are beholden to the rules of the Uniform Court System and the Fourteenth Amendment of the United States. Galison contends that they are. Cahn, Fried and Silbermann contend that they are not.

It must be emphasized that the transcripts in question were NEVER SEALED by Judge Cahn against Galison or anyone else. NOT ONE of the rules regarding sealing of court documents was obeyed. Furthermore, the defense lawyers DO NOT CONTEST the release of the transcripts to Galison. In a letter to judge Silbermann they wrote: “If a transcript of the December 7, 2005 conference with Justice Cahn exists, [we] of course have no objection its being released to the parties”.

The fact that the transcripts exist was made clear by a short portion of the transcripts that Mr. Galison was able to obtain from the court reporter, Myron Calderon. Mr. Calderon told Galison that the entire ex parte meeting was recorded, and that Judge Cahn had “confiscated” most of the record from Calderon before he had a chance to transcribe it.

When Mr. Galison complained to Administrative Judge Silbermann about the confiscation of the transcripts, Judge Cahn immediately recused himself from the case without explanation, against Mr. Galison’s expressed wishes. Even after his recusal however, he has continued to prohibit Mr. Galison from obtaining the transcripts for over two years. When Galison appealed to Judge Silbermann, Silbermann refused to direct Judge Cahn to furnish the transcripts and advised Mr. Galison that his only recourse was to file a formal motion before the judge who replaced Cahn: Bernard Fried, whom Silbermann also personally chose to take over the case. Never in the history of the New York Supreme Court, has a litigant been required to file a motion to obtain an unsealed transcript from the court.

Galison made two formal motions before Fried to obtain the unsealed, uncontested transcripts from his own case. Fried denied the first motion without prejudice, and the second WITH prejudice because, as Judge Fried put it: “I did not give you permission to re-file”. (If a ruling without prejudice cannot be re-filed, how is it difference than a ruling WITH prejudice?)

And so, Mr. Galison has now exhausted all of the available recourses for obtaining the UNSEALED, UNCONTESTED transcripts from his own case. To this day, he does not know why a protective order was placed against him, what evidence was presented and what arguments were made.

Judge Fried then dismissed the entire case in favor of Defense, thereby leaving Galison with no further recourse for obtaining the transcripts. Galison, however is appealing the decision, and hopes that Appellate Court will uphold his fundamental constitutional right to a fair trial.

The ex-parte meeting and the unfair judgment are, unfortunately, commonplace events in the Civil Supreme. What is shocking in this case is the cover up, involving three veteran judges, and their coordinated efforts over two years to deprive a citizen of his basic constitutional rights to obtain the transcripts in his own case.

Mr. Galison has now filed complaints against Judges Cahn, Fried and Silbermann with the Commission on Judicial Conduct.

For more information please contact: William Galison at wgalison@aol.com

Click here to see our previous post on this story.

Monday, January 28, 2008

Integrity Commission Accepts "free" Legal Work From Lobbyists (MORE, CLICK HERE)

GOV-PANEL 'INTEGRITY' CHALLENGED
The New York Post By KENNETH LOVETT

January 28, 2008 -- ALBANY - Four good-government groups want the state Public Integrity Commission to stop accepting free legal work from registered lobbyists under its regulation.

The Post recently reported that Gov. Spitzer's new panel had accepted such freebies from two members of Bryan Cave, a law firm that has lobbied on state real-estate issues, and from a professor at Fordham University, which has its own registered lobbyists.

Citing the Post story, the New York Public Interest Research Group, the state League of Women Voters, Common Cause/New York, and the Citizens Union of the City of New York sent the panel a letter on Jan. 17 calling the practice "inappropriate."

Last week, Executive Director Herbert Teitelbaum, a Fordham adjunct professor and former Bryan Cave partner, responded in a letter that no conflict of interest existed since neither Bryan Cave nor Fordham had any contested or investigatory matters pending before the panel.

John Grisham on How-To Fix an Election (MORE, CLICK HERE)

If You Can’t Win the Case, Buy an Election and Get Your Own Judge

The New York Times, Books of The Times By JANET MASLIN - January 28, 2008

THE APPEAL By John Grisham (358 pages. Doubleday. $27.95)

“The Appeal” is John Grisham’s handy primer on a timely subject: how to rig an election. Blow by blow, this not-very-fictitious-sounding novel depicts the tactics by which political candidates either can be propelled or ambushed and their campaigns can be subverted. Since so much of what happens here involves legal maneuvering in Mississippi, as have many of his other books, Mr. Grisham knows just how these games are played. He has sadly little trouble making such dirty tricks sound real.

Building a remarkable degree of suspense into the all too familiar ploys described here, Mr. Grisham delivers his savviest book in years. His extended vacation from hard-hitting fiction is over. However passionately he cared about the nonfiction events he described in “An Innocent Man,” his strong suit remains bluntly manipulative, no-frills storytelling, the kind that brings out his great skill as a puppeteer. It barely matters that the characters in “The Appeal” are essentially stick figures. What works for Mr. Grisham is his patient, lawyerly, inexorable way of dramatizing urgent moral issues.

The jumping-off point for “The Appeal” is that a mom-and-pop law firm wins a big Mississippi verdict, triumphing over a chemical company that has spread carcinogenic pollutants. But this victory could turn out to be hollow, because the deep-pocketed corporate defendant isn’t giving up without a fight. The New York-based Krane Chemical swings into combat mode, first by taking stock of these small-town lawyers. The mom and pop are Wes and Mary Grace Payton: nice people, good parents, nearly broke. Krane’s stealth envoys quickly determine that it wouldn’t take much to push the Paytons over the edge.

But the Paytons themselves are little more than a nuisance to Krane. The precedent created by their case is what matters, and the company’s real objective is to make itself safe from similar attacks in the future. In order to arrange that, Krane needs the Mississippi Supreme Court. Another nuisance: Mississippi Supreme Court justices can’t simply be appointed. They have to be elected.

Now the stakes start to ratchet up. So a corrupt senator puts Krane’s greedy billionaire C.E.O., Carl Trudeau, in contact with Troy-Hogan, a mysterious Boca Raton firm that specializes in elections. There is no Troy. There is no Hogan. There is no record of the nature of the business conducted by this privately owned corporation, which is domiciled in Bermuda. For two separate fees, one acknowledged and the other, larger one delivered quietly to an offshore account, Troy-Hogan will do its magic. “When our clients need help,” says Barry Rinehart, Troy-Hogan’s main power player, who radiates the same expensive sartorial confidence that Trudeau does, “we target a Supreme Court justice who is not particularly friendly, and we take him or her out of the picture.”

This multipart process involves choosing a victim and creating rival candidates from scratch. Soon the stealth saboteurs have trained their sights on a justice named Sheila McCarthy. She is not a liberal ideologue, but she can be made to sound like one (“a feminist who’s soft on crime”).

She’s not an operator or a politician. She is unprepared for a campaign fight. And the only special interest group that ever supported her is suddenly a liability. (Anti-McCarthy mailings will trumpet the question “Why Are the Trial Lawyers Financing Sheila McCarthy?”) As Mr. Grisham points out in one of his book’s many moments of indignation, there’s no need for the architects of a smear campaign to answer such a question. All they have to do is keep on asking it.

Meanwhile the covert operators create their own man: Ron Fisk, a political newcomer. “They picked Fisk because he was just old enough to cross their low threshold of legal experience, but still young enough to have ambitions,” the book explains. Fisk is also new enough to be wowed by perks like private jets, which allow him to make so many more campaign stops than his rivals can, and by all the new attention lavished on him by his backers. He barely has time to wonder why they find him so appealing or where all those campaign funds are coming from.

“The Appeal” is clever enough to throw in a rogue third candidate, a clownishly unelectable figure who can draw publicity away from Sheila McCarthy. It also gives her liabilities like a sex life, provides her with an unhelpful zealot as a campaign adviser and underscores the terrible malleability of the voting public. According to a survey cited here, 69 percent of Mississippi’s electorate has no idea that the state’s Supreme Court justices run for office.

And this book has a keen ear for the baloney of biased rhetoric, particularly when it comes from the right. (Mr. Grisham makes no secret of his own political position. He has publicly supported the presidential campaign of Senator Hillary Rodham Clinton.) “Are you aware that Justice Sheila McCarthy is considered the most liberal member of the Mississippi Supreme Court?” a poll inquires. And once the gratuitous issue of gay marriage has been intentionally shoehorned into the campaign, the voice-over on a television ad can be heard asking, “Will liberal judges destroy our families?”

While the election looms, Krane trots out the phrase “junk science” when it appeals the verdict and attacks the expert testimony of a toxicologist, geologist and pathologist, among others who affirmed the effects of Krane’s toxic pollutant. And Ron Fisk, who finds himself giving many of his stump speeches from pulpits, learns to fine-tune his emphases on religion and family values. The extent to which he rails against sin depends on how close he is to the lucrative casinos of the Mississippi Gulf Coast.

“I must say that there is a lot of truth in this story,” Mr. Grisham points out in his author’s note. That point is already unmistakable in his book’s gallingly apt examples and its irrefutable tone. Only when he contrasts the difference between the cynical, venal, jaded rich and their noble, self-sacrificing victims does he court sloppiness and caricature. While the book notes that Wes Payton had to budget for each cup of coffee “and was always looking for quarters,” it presents Carl Trudeau, both stereotypically and ungrammatically, as “a hothead with a massive ego who hated to lose.”

Sunday, January 27, 2008

Judge Napolitano: A Judicial Surprise (MORE, CLICK HERE)

A Judicial Surprise
New York Sun OPINION
By ANDREW NAPOLITANO - January 25, 2008

While New Yorkers were preoccupied with the stock market slide, the Giants in the playoffs, and the presidential primaries, the United States Supreme Court was studying the Constitution of the State of New York and examining the manner in which it permits politicians to select judicial nominees. And it did not like what it found.

Here's the background. Judge Margarita Lopez Torres was elected to a four-year term on the Civil Court in the Bronx in 1992. She was nominated to that position by the Democratic Party through a direct primary election.

Shortly after assuming her job, party leaders began to demand that she make patronage hires, demands to which she says she could not acquiesce since doing so would be inconsistent with being a member of an independent judiciary.

The party bosses wanted Judge Lopez Torres to hire their friends and political hacks in various courthouse positions, full-time and part-time, as sort of a payback to them for assuring that she would continue to receive the Democratic nomination for Civil Court judge.

Judge Lopez Torres, who by many accounts has served admirably and well, desired promotion to the Supreme Court of the State of New York which, despite its name, is the basic trial court of general jurisdiction, but is still superior in jurisdiction, authority, prestige, and pay to the Civil Court.

To become a Supreme Court justice in the State of New York, one either needs to be promoted from the Civil Court and then elected to a 14-year term or one needs to be elected directly to a 14-year term. To be elected, one needs to have one's name on the ballot, and to get on the ballot one needs the imprimatur of a nominating convention of one of the major political parties in New York.

Judge Lopez Torres quickly learned that her decision to reject the patronage hires requested of her by Democratic party bosses meant she could never receive a judicial nomination from them, and, without the nomination, would never become a justice of the Supreme Court of the State of New York. So, she sued the bosses.

She and several registered voters who wanted to vote for her but could not filed a complaint in federal court, and in the initial round persuaded a judge to invalidate the state's nominating system. The Court found that the New York system which permits party conventions (read, party regulars controlled by party bosses), rather than voters, to decide who becomes a judicial nominee effectively denies voters the right to choose a nominee and forces potential nominees to play ball with party bosses. The decision invalidating the New York system was upheld unanimously by a 3-judge panel of the United States Court of Appeals for the 2nd Circuit. The bosses appealed to the United States Supreme Court.

What happened thereafter was a surprise to everyone involved. Justice Antonin Scalia, writing for a unanimous Supreme Court, utilized something we rarely see in appellate judges today: The principle of judicial restraint.

Even though the Court did not like the New York system, even though it doesn't always produce better judges, even though Judge Lopez Torres was a good judge who should be able to present her case to the voters without having to hire people whom the party bosses want her to hire, the United States Supreme Court let stand the New York State Supreme Court system for choosing judicial nominees.

Judge Lopez Torres argued that the New York system violated her First Amendment rights by forcing her to use words indicating approval of the bosses whom she disrespected and by compelling her to associate with them. Not only does the First Amendment — "Congress shall make no law … abridging the freedom of speech … or the right of the people peaceably to assemble … " — prohibit Congress and the States from punishing speech or assembly, it also prohibits them from compelling speech or assembly.

The government cannot punish speech or silence, and it cannot prohibit associating with others or compel any associations. But the United States Supreme Court would hear none of this. Judge Lopez Torres chose to enter the system. No one forced her. And political parties as we know them, the Court held, would not exist if they could not command loyalty and exclude those who disagree. What about counties like Manhattan with one party rule? The party must be doing something right in those counties, Justice Scalia wrote, or the voters would not tolerate it.

The Supreme Court decision brought together judicial minds as disparate as Justices Ruth Bader Ginsburg and Clarence Thomas to agree on the principle that the federal courts, as Justice Felix Frankfurter once famously wrote, do not exist in order to right every wrong. All Judge Lopez Torres wanted was access to the ballot: The right to have voters say yea or nay to her. The members of the Court to a person thought she should have that right, but found nothing in the Constitution guaranteeing it. Do laws that let party bosses choose our judges serve the people's best interests? Of course not. Do laws that let them pick who they want to serve for the people's best interests? Not according to the nine appointed life-tenured justices of the United States Supreme Court. Will federal courts remedy this? No, because as Justice Thurgood Marshall liked to say "[t]he Constitution does not prohibit [state] legislatures from enacting stupid laws."

So, we in New York remain subject to party bosses and all their whims and deals and chicanery in choosing our judges. This is surely patently unwise, but it is not unconstitutional.

Judge Napolitano, who was on the bench of the Superior Court of New Jersey between 1987 and 1995, is the senior judicial analyst at the Fox News Channel. His latest book is "A Nation of Sheep" (Nelson, 2007).

New York Sun: Judge Brennan rolling in his grave (MORE, CLICK HERE)

Light 'Em Up
New York Sun Editorial - January 17, 2008

Justice Brennan must be rolling in his grave. The center at New York University that bears his name took a First Amendment case about political cronyism in Brooklyn all the way to the Supreme Court and couldn't get a single vote. Not a one. Not even a twitch of the bow tie of Justice Stevens, with whom Justice Brennan sat on the bench for 15 years, or a ruffle from a First Amendment absolutist like Justice Scalia, or a swing voter like Justice Kennedy, who also, albeit for a shorter time, shared the high bench with Brennan.

At issue in the case was how New York State picks judges for its state Supreme Court. New York courts are famously confusing. Here's an example: the top court is the Court of Appeals, where the members of the bench prefer to be addressed as "judge." Two levels below is the State Supreme Court, which despite its fancy name, is the basic trial court. The several hundred jurists on that court like to be called "justice."

About the only thing more confusing is how Supreme Court justices are selected. The last stage of the process is Election Day, when voters go to the polls and elect the judges. In New York City at least, the candidates put up by the Democratic Party will almost always get elected. So the trick to getting to the bench is getting that nomination.

There isn't any primary. Instead there is something called a judicial nominating convention, attended by several dozen party delegates. These conventions aren't the model of democracy. In practice, the candidate who has the support of the party boss, like Assemblyman Vito Lopez in Brooklyn or Assemblyman Herman "Denny" Farrell in Manhattan, is almost always the person who gets to be judge. In other words, judge-making is the last true vestige of the old patronage system left to county bosses.

One lower court judge, Margarita Lopez Torres, with the backing of the Brennan Center, challenged the whole system. As a civil court judge, Ms. Lopez Torres had sought a spot on the state Supreme Court bench, but never could get the support of Mr. Lopez's predecessor, Clarence Norman, Jr., who, by the way, is now in prison on corruption charges. The editors of these pages are great admirers of Ms. Lopez Torres and sympathetic to others who find themselves on the fringes of the party system. But, as we indicated October 3 in our editorial "Lopez-Torres Before the Nine," we didn't have much sympathy with her case. She could have run as an independent. We had a similar feeling when Mayor Bloomberg tried to institute in city politics a system of "non-partisan" elections.

* * *

And it is something for the country to think about as the great political parties thrash their way through trying to choose by a vast, monumentally expensive primary system, candidates who for years were chosen in smoke-filled rooms of party conventions. If the parties start to think about reforming the vast circus and returning to the convention system (as R. Emmett Tyrrell suggests nearby), they will find their standing buttressed by the decision of all nine justices of the Supreme Court in Lopez Torres. "A political party," the justices said, "has a First Amendment right to limit its membership as it wishes, and to choose a candidate selection process that will in its view produce the nominee who best represents its political platform." And The Great Scalia, writing for the majority, said that what might constitute a "fair shot" at a nomination is a reasonable question for a legislature, but not for judges, and went on to say: "Party conventions, with their attendant 'smoke-filled rooms' and domination by party leaders, have long been an accepted manner of selecting party candidates." To which we can only add, "light 'em up."

Saturday, January 26, 2008

Kerik Federal Judge Shines Light on Attorney Misconduct (MORE, CLICK HERE)

NY BigLaw Lawyer Ousted From Kerik Case; Will Likely Be Called as Witness Against Client
By Mark Hamblett
New York Law Journal/New York Lawyer - January 25, 2008

A federal judge has ordered the attorney of ex-New York Police Commissioner Bernard Kerik off the case for an actual conflict of interest.

As a result, Kenneth Breen, a partner at Paul, Hastings, Janofsky & Walker, will no longer be able to defend Mr. Kerik against a 16-count indictment that includes charges of accepting payments from a company that sought to do business with New York City, tax fraud, making false statements to the federal government and providing false information on a loan application.

Southern District Judge Stephen Robinson based his decision on the virtual certainty that Mr. Breen would be called as a witness in United States v. Kerik, 07 Cr. 1027.

"The conflict in this case is so severe that no remedial measure will cure it," the judge said as he discussed the allegedly misleading statements Mr. Kerik made to Mr. Breen and defense attorney Joseph Tacopina that had been passed on to investigators.

"Even if Mr. Breen were not to become an actual witness, he would be an unsworn witness who could subtly impart to the jury his first-hand knowledge of events without having to swear an oath or be subject to cross-examination," Judge Robinson said. "For defense counsel, becoming an unsworn witness, standing alone, is sufficient for disqualification."

Mr. Breen said yesterday that Mr. Kerik is disappointed with the decision and is reviewing his options.

In 2004, Mr. Kerik withdrew his nomination as Secretary of the Department of Homeland Security after he admitted he had not paid taxes on the wages he paid his children's nanny. Soon after, Mr. Kerik became the target of accusations about personal, ethical and financial improprieties, including accepting renovations to his Bronx apartment from a company that was seeking city contracts.

Mr. Tacopina, Mr. Kerik's then-defense attorney who later withdrew from the case for reasons unstated, met with the Bronx district attorney following Mr. Kerik's resignation as police commissioner.

Mr. Tacopina told prosecutors that Mr. Kerik had paid for the renovations to his Riverdale apartment himself and a Manhattan Realtor had given him a loan for a down payment on the apartment, a loan Mr. Kerik had repaid in 2003.

Mr. Kerik pleaded guilty to two misdemeanors in the Bronx case in June 2006, admitting he failed to report a loan and that he accepted $165,000 in renovations to the apartment. He was fined $221,000.

Prosecutors with the Southern District U.S. Attorney's Office questioned Mr. Tacopina on his statements about the renovations and loan. Mr. Tacopina confirmed first that he had made the statements and second, that he had received the information from Mr. Kerik for the "express purpose" of conveying it to Bronx prosecutors.

As the federal investigation proceeded, Southern District prosecutors also met with a deputy commissioner of the New York City Department of Investigation, who reported being told by Mr. Tacopina that the Kerik apartment renovations cost between $30,000 and $50,000 and no one else had paid for them. Again, Mr. Tacopina confirmed making the statements for the express purpose of informing the Department of Investigation.

The statements made to the Bronx district attorney and the Department of Investigations were the basis for some of the federal charges later levied against Mr. Kerik.

Mr. Breen joined the Kerik defense team in 2005 and Mr. Tacopina told investigators over the course of the following year that Mr. Kerik repeated those statements to both himself and Mr. Breen. Mr. Tacopina left the case before the 2007 federal indictment.

Mr. Breen filed a brief in opposition his disqualification. James D. Wareham, also of Paul Hastings, represented him at the oral arguments before Judge Robinson.

Arguments Rejected

Assistant U.S. Attorneys Perry A. Carbone and Elliott B. Jacobson told the court that Mr. Kerik was informed of the conflict more than seven months before his indictment.

After his indictment, Mr. Kerik argued that the alleged conflict was merely hypothetical and that, in any event, the conflict was waivable. He also claimed the statements were privileged and protected by Federal Rule of Evidence 410 because they were made in the course of plea negotiations.

And even if they were not protected by Rule 401, he argued, admission of the statements would deprive him of his Sixth Amendment right to counsel.

Mr. Kerik said Mr. Breen's role was limited and that Mr. Tacopina was the one who took the lead on what he claimed were plea discussions.

"Unfortunately for the defendant," Judge Robinson said in his ruling, "this type of potential disagreement or nuance to the discussions at issue is exactly the kind of argument that could necessitate Mr. Breen's testimony at trial."

Mr. Kerik tried to argue that he was not challenging his plea allocution in the Bronx but was instead reserving the right to challenge the government's interpretation of that allocution.

"This argument misses the point," Judge Robinson said. "It is not the truth of Mr. Kerik's plea allocution that is questioned here. The issue is whether in discussions prior to his plea Mr. Kerik authorized his attorneys, including Mr. Breen, to relay statements . . . that were misleading and obstructive."

Mr. Breen's potential testimony, the judge said, "is direct evidence of the charges contained in the indictment."

The judge said it was likely that Mr. Kerik will "disagree with and heavily cross-examine Mr. Tacopina regarding the alleged authorization by the defendant as well as the substance of any discussions."

Mr. Breen may have to be called to corroborate or dispute those accounts, he said, and should he disagree with Mr. Tacopina's recollections, Mr. Breen "will either be forced to sit quietly in detriment to his client or (without taking an oath or being cross-examined) to ask questions to which the jury might assign undue weight."

Judge Robinson rejected the rest of Mr. Kerik's arguments.

Even if the statements were privileged and the privilege has not been waived, he said, "the statements would still be admissible under the crime-fraud exception, even where, as here, the attorney was not a knowing participant in the crime or fraud in question."

Wednesday, January 23, 2008

More Mississippi Mud on Scruggs' Judicial Fixin' (MORE, CLICK HERE)

The Legal Trail in a Delta Drama
The New York Times By NELSON D. SCHWARTZ - January 20, 2008

OXFORD, MISS. — ON a crisp, sunny morning last week, Mississippi’s political elite gathered in Jackson for a day of celebration. They began with a gospel prayer breakfast before proceeding to the state Capitol to witness the swearing-in of Haley Barbour for a second term as governor.

At the same moment on Tuesday, 170 miles north of Jackson, a very different kind of political theater was unfolding at the federal courthouse here. A former Mississippi state auditor, Steven A. Patterson, stood before a rapt courtroom and pleaded guilty to a charge of conspiracy. Prosecutors said he had worked with Richard Scruggs, arguably the country’s best-known plaintiff’s lawyer, to bribe a local judge to rule in Mr. Scruggs’s favor in a fee battle with another lawyer.

Mr. Patterson’s plea — and his agreement to cooperate with prosecutors — significantly ratchets up the pressure on Mr. Scruggs, who was indicted on federal conspiracy and bribery charges in November.

To make matters worse, one week earlier, a former lawyer for Mr. Scruggs, Joseph C. Langston, pleaded guilty after prosecutors alleged that he had tried to influence a different judge on Mr. Scruggs’s behalf in a separate, earlier dispute with another lawyer over money.

Linking Mr. Scruggs, Mr. Patterson and other figures in the case is an obscure former college football star, farmer and politically well-connected adviser to Mr. Scruggs named Presley L. Blake. At the hearing on Tuesday, prosecutors described Mr. Blake as a key go-between in an elaborate bribery plot, and they are now examining his ties to Mr. Scruggs. No charges have been brought against Mr. Blake.

The story of Mr. Blake, who has received at least $10 million from Mr. Scruggs, threatens to reveal just how Mr. Scruggs worked the political back rooms of Mississippi — and Washington — to win a huge settlement with cigarette makers that garnered him approximately $1 billion in fees as well as a role in “The Insider,” the 1999 movie about the battle with Big Tobacco.

Mr. Scruggs’s connections have never been a secret: his brother-in-law is former Senator Trent Lott, Republican of Mississippi. But the expansion of the investigation is especially significant because for Mr. Scruggs, law and politics have been closely intertwined.

Indeed, prosecutors plan to cite the political influence brought to bear by Mr. Scruggs, who once boasted that lawsuits are “won on the back roads long before the case goes to trial,” when his own trial begins on March 31.

Rather than courtroom victories against the tobacco makers, legal experts say, it was Mr. Scruggs’s ability to put together a coalition of state officials and Washington politicians, while adeptly courting the news media, that ultimately forced cigarette makers to pay up in the landmark $248 billion national settlement.

Mr. Scruggs declined to comment for this article. But his lead defense lawyer, John Keker, says Mr. Scruggs was unaware of any bribery attempts and is completely innocent.

Now, the fate of Mr. Scruggs is being watched closely by advocates of tort reform as well as lawyers and industry leaders, who have all found themselves in his cross hairs over the last two decades. “He stands for the proposition that the halls of justice can become the arena for pressing public policy goals,” says David M. Bernick, a partner at the firm Kirkland & Ellis, who has represented the tobacco industry. “People want to know the reality of how he came to be so influential.”

THE cast of characters in the case against Mr. Scruggs may seem like a tableau of the small-town South — Mr. Patterson, for example, resigned after trying to evade automobile taxes, and was recently criticized by the local bar association when it suggested that he was trying to pass himself off as a lawyer in New Albany, Miss.

While Mr. Patterson has been a well-known political figure in Mississippi for years, his friend and duck-hunting buddy Mr. Blake has kept a much lower profile. Better known as P. L., Mr. Blake has political roots as thick as the soil of the rural Mississippi Delta region, where he grew up along the banks of the Tallahatchie River in Leflore County.

Over the last three decades, he aided the campaigns of some prominent Mississippi politicians, getting out the vote for Mr. Barbour and Mr. Lott, among others, and has retained his political influence despite a bank fraud indictment in the 1980s. Represented in that case by Fred D. Thompson, then a prominent Tennessee lawyer and now a candidate for the Republican presidential nomination, Mr. Blake eventually pleaded no contest to a misdemeanor.

In a 2004 deposition taken in a lawsuit over legal fees that involved many of the same players as the current criminal case, Mr. Scruggs confirmed that he paid Mr. Blake at least $10 million in fees from the tobacco settlement, but precisely what Mr. Blake did to earn that money is now emerging as an important question. In his own deposition in the same lawsuit, Mr. Blake suggested that the money was for collecting newspaper clippings on the tobacco case for Mr. Scruggs.

Michael C. Moore, the former attorney general of Mississippi who worked closely with Mr. Scruggs on the tobacco settlement, says he was “astounded” when he learned of Mr. Blake’s payday. “It doesn’t surprise me that Dick would pay him some money, but it’s hard for me to believe that much money would go to P. L. Blake,” says Mr. Moore.

In interviews, other Mississippi political figures suggest that Mr. Blake has played a key role for Mr. Scruggs over the years. “P. L. essentially has done all the back-room negotiating for Dickie, but you’ll never see his tracks,” says Pete Johnson, a former state auditor who is now co-chairman of the Delta Regional Authority, a federal agency with headquarters in Clarksdale, Miss. Mr. Johnson, who lobbied the Mississippi Legislature on Mr. Scruggs’s behalf when he was gearing up for the tobacco fight, recalls that his first introduction to Mr. Scruggs came through Mr. Blake in the early 1990s.

“He was the outside confidant that Dickie needed,” Mr. Johnson says. “He was the nexus of his political network.”

Mr. Blake, who now lives in the Birmingham, Ala., area, did not return repeated calls to his home there.

Although Mr. Scruggs has known Mr. Blake for more than two decades, the hearing last Tuesday was the first time prosecutors had publicly linked the two. And the role they suggest that he played echoes Mr. Johnson’s description.

On Oct. 16, six weeks before the indictment, Mr. Scruggs met with Mr. Patterson and Timothy R. Balducci, a local lawyer who had represented Mr. Scruggs in several past cases. When they entered Mr. Scruggs’s office on Courthouse Square in Oxford, according to an account presented in court by Robert H. Norman, an assistant United States attorney, Mr. Scruggs stated: “I know y’all have talked to P. L., and I have talked to P. L. Everything’s fine. Y’all are going to be covered.”

Mr. Blake’s name also popped up in an earlier phone call between Mr. Patterson and Mr. Balducci that was taped by investigators. In that conversation, from which prosecutors quoted in court, Mr. Patterson told Mr. Balducci that Mr. Scruggs and Mr. Blake had met and that Mr. Blake “knows it’s going to be 40,” apparently a reference to the $40,000 bribe they are accused of planning to give the judge. In the recording, Mr. Patterson told Mr. Balducci that Mr. Blake was confident that Mr. Scruggs would “take care” of them, adding, “We got your horse sold.”

The state judge, Henry L. Lackey, alerted federal prosecutors in Oxford after he was initially approached by Mr. Balducci last spring, and he worked closely with them during the investigation in the summer and early fall. Like Mr. Patterson, Mr. Balducci has pleaded guilty and has agreed to cooperate with prosecutors. Along with Judge Lackey, both are likely to testify at the trial.

Mr. Norman, and Thomas W. Dawson, the lead prosecutor on this case, declined to discuss Mr. Blake beyond the information presented in court. But lawyers close to the investigation, who asked not to be identified because the investigation was under way, confirm that prosecutors are examining Mr. Blake’s ties with Mr. Scruggs and have already subpoenaed documents from past court battles linking the two men.

UNTIL his name surfaced in the Scruggs case last week, Mr. Blake rarely made the local papers, despite his vaunted political connections. Much of what is known about him is drawn from the depositions in a long-running dispute over asbestos fees that Mr. Langston recently admitted trying to influence, a dispute that now threatens to further complicate Mr. Scruggs’s legal worries.

Mr. Blake first drew public attention four decades ago, as a football star at Mississippi State University. After graduating in 1959, he played professionally in Canada before returning to the Delta to farm, raising catfish and crops while also prospering in grain storage and real estate.

At the same time, Mr. Blake also cultivated political connections, becoming a local political ally of James O. Eastland, a onetime Delta planter who became a Mississippi political legend and served as a United States senator for 36 years before his retirement in 1978. In a 2004 deposition, Mr. Blake said he also had known Senator Lott for 25 to 30 years, stating “I would classify him as a friend.”

Despite these political alliances, Mr. Blake soon ran into a series of legal and financial troubles. In the mid-1980s, he declared bankruptcy and faced foreclosure of his farmland. In 1987, he was indicted on charges that he had paid money to officials of a local bank in order to obtain loans. Although the original six counts were later dismissed, he eventually pleaded guilty to a single misdemeanor charge.

But in a lucky turn of events, Mr. Blake turned to Mr. Scruggs for help in the bankruptcy case. (Mr. Thompson and a Mississippi lawyer, Tommy McWilliams, handled the criminal charges.)

In the 2004 deposition, Mr. Blake recalled that during this time he became “very close friends” with Mr. Scruggs, who in turn lent him $750,000. As Mr. Scruggs’s asbestos caseload increased and settlement proceeds rolled in, he began to rely on Mr. Blake for political advice on how the asbestos litigation was viewed in the Mississippi and Louisiana legislatures.

Mr. Blake was soon consulting on tobacco as well, but here more political expertise was needed than it was for the asbestos claims. Instead of suing companies on behalf of individual plaintiffs, Mr. Scruggs’s novel legal approach called for the state of Mississippi to recover from the tobacco industry a portion of what it had spent treating smoking-related illnesses. After an introduction by Mr. Blake, Mr. Scruggs hired Mr. Johnson, the former state auditor, to lobby Mississippi legislators and shaped a bill to allow him to represent the state; the legislation quickly passed.

By his own account, Mr. Blake simply kept his ear to the ground for Mr. Scruggs while also monitoring press reports. “I got those articles or information or anything else and passed them on to him and gave him my opinions about it because he would always ask,” he explained in a deposition in August 2004.

The work may have been simple, but the rewards were swift. After the settlement with the tobacco industry in 1998, Mr. Blake said, he began to receive quarterly payments of $468,000. Since the fees are expected to be paid out over a two-decade period, Mr. Blake could ultimately receive $50 million.

AT his 2004 deposition, Mr. Langston provided what might be a clearer version of just how Mr. Blake fit into Mr. Scruggs’s operation. “I know that Mr. Blake seemed to be Dick Scruggs’s — his switchboard, I call it, you know. Everybody, not everybody, but a lot of people wanted to be involved with Scruggs on tobacco, and I got the impression that P. L. Blake was kind of a filter for a lot of those people. I also got the impression he was Dick Scruggs’s listening post.”

According to depositions, a $10 million payment to Mr. Blake was funneled to him via the bank account of Mr. Langston, the former lawyer for Mr. Scruggs who pleaded guilty on a separate judicial bribery charge this month.

But Mr. Blake’s contacts weren’t limited to Mississippi or to the South. According to a deposition by Mr. Moore, the former Mississippi attorney general, Mr. Scruggs told him, “Blake would call and provide, usually, political information, especially when we were dealing with Congress.”

Even more impressive, Mr. Moore said, “it seemed that he was talking directly to the tobacco industry or directly to the Republican Party, because every time he gave us information, it was right-on, and we were able to react on it and be ahead of what those guys were doing. So it was pretty valuable.”

Mr. Patterson, whose plea on Tuesday brought Mr. Blake’s name into the limelight, is a longtime friend of Mr. Blake, according to his 2004 deposition. And in a second deposition of Mr. Blake in 2005, which has not been made public but was reviewed by The New York Times, Mr. Blake states that he lent Mr. Patterson “a lot of money.”

“And I have donated to his campaigns,” he added. “Steve is a friend.”

IN court last week and at his office, Mr. Scruggs said he could not comment on the case or on his history with Mr. Blake, adding, “I hope you’ll understand.” Despite the legal threat — he faces a maximum of 75 years if convicted — Mr. Scruggs’s Southern hospitality was in evidence, as he welcomed a reporter to his spacious workplace and inquired into how he liked Oxford.

Like much of the rest of Mississippi, Oxford has a small-town feel. Mr. Scruggs’s office is just a five-minute walk from where F.B.I. agents are examining about 150 recorded conversations while following other leads, including allegations that Mr. Scruggs is connected to an effort to bribe a second state judge. Just as close are the courthouse where Mr. Scruggs will be tried and the Greek Revival bed-and-breakfast where his lead lawyer, Mr. Keker, is staying.

That kind of small-town proximity once benefited Mr. Scruggs enormously. Just down the street, at the University of Mississippi, he first got to know Mr. Moore, as well as Governor Barbour, who was then a fraternity brother of Mr. Scruggs at Sigma Alpha Epsilon.

“The governor doesn’t have a dog in that hunt,” says Pete Smith, Mr. Barbour’s press secretary, of the case against Mr. Scruggs.

At Ole Miss, says Johnny Morgan, another former fraternity brother and college roommate of Mr. Scruggs who is a now a local county supervisor, “he was the one person in the frat I considered beyond reproach.”

“He made sure everybody else was doing the right thing,” Mr. Morgan adds. “Down deep, I know he’s a good person.”

Last Wednesday, one day after Mr. Patterson’s guilty plea in the same courtroom, Mr. Scruggs’s legal team provided the first detailed blueprint for his coming defense. In a pretrial motion, the team argues that the idea to bribe Judge Lackey came not from Mr. Scruggs, but from Judge Lackey himself. “There’s no question that Judge Lackey solicited the monetary bribe after six months of talking to Balducci without any suggestion of a monetary bribe from Balducci,” Mr. Keker says.

He adds that the government did not disclose evidence from the tapes on which Mr. Balducci makes it clear Mr. Scruggs didn’t know of Mr. Balducci’s attempt to bribe Judge Lackey. At the same time, Mr. Keker argued that it was Judge Lackey who was determined to draw Mr. Scruggs’s name into the bribery allegation, despite protestations from Mr. Balducci.

Judge Lackey declined to respond directly to Mr. Keker’s account but said, “It will all come out at trial.”

FOR prosecutors, it will be crucial to link Mr. Scruggs to the actual bribery attempt, which is why proving Mr. Blake’s role as a go-between will take on more significance when the trial begins March 31.

In the deposition four years ago, Mr. Scruggs described Mr. Blake as “a very valuable” resource, who helped him figure out “who might be for me, who might be against me.” When the jury is eventually forced to figure out whether it’s for or against Mr. Scruggs, the word of P. L. Blake might help determine Mr. Scruggs’s fate.

Journal News Editorial: Affirming Injustice (MORE, CLICK HERE)

Affirming injustice
The Journal News EDITORIAL - January 17, 2008

The unanimous Supreme Court decision yesterday upholding New York's political-boss-driven framework for nominating trial judges is a landslide victory for the all-too-familiar - a status quo that rewards partisanship over independence and very often competency. Where two lower courts faulted the state's so-cozy and lamentable convention system for picking judicial nominees, the high court held that the framework met constitutional muster and, therefore, could not be undone by others in robes. If there ever is to be any changing or reforming the selection process, the court explained with no traces of irony, it will have to come from the state Legislature. Who said that the Supreme Court justices are without humor?

The ruling was not unexpected. During oral argument in October on Lopez Torres vs. the State of New York Board of Elections, several justices telegraphed their skepticism of the challenge to New York's 86-year-old nominating process, a convention-based system panned by the lower federal courts for being dominated by political party leaders - such that half the state Supreme Court elections between 1990 and 2002 were "little more than ceremony." Justice Stephen Breyer commented that maybe the prevailing framework was preferable to a "system where people raise $4 million from the lawyers in order to run for office" in a direct primary decided by the voters.

How trial-court justices are made in New York is not a tale for the squeamish. Republican and Democratic primary voters elect convention delegates, who then nominate judicial candidates. That doesn't sound so bad - except the convention delegates are typically party functionaries and hardly independent. For the most part, these agents of the parties rubber-stamp the candidates recommended by the party bosses. Very often these candidates run unopposed on the general election ballot. The legal challenge came after a Brooklyn Surrogate Court judge, Torres, was denied the opportunity to run for state Supreme Court, purportedly after angering political leaders by refusing to make patronage appointments.

The high court found no constitutional flaw in all this. "A political party has a First Amendment right to limit its membership as it wishes and to choose a candidate-selection process that will in its view produce the nominee who best represents its political platform," Justice Antonin Scalia wrote for the court. A concurring opinion by Justice John Paul Stevens noted that constitutionally sound doesn't necessarily mean sound public policy: "The Constitution does not prohibit legislatures from enacting stupid laws," he wrote, quoting late Justice Thurgood Marshall.

Both the state's major parties and the elections board asked the high court to reverse an appellate court ruling ordering the current system be scrapped in favor of a traditional primary for picking candidates. In the absence of public financing of campaigns - a dream-world reform sought by Gov. Eliot Spitzer and others - a traditional primary would be no step up from the current scheme. A reasonable alternative: Prevailing upon the Legislature to adopt good-government reforms ensuring the election of independent-minded convention delegates, thereby stripping the party bosses of their extraordinary influence and giving real power to the voters. Perhaps the Supreme Court justices aren't the only ones with a sense of humor. A Journal News editorial - www.lohud.com

Ex-NY Prosecutor Charged with Teen Sex (MORE, CLICK HERE)

Ex-NY Prosecutor, Married to Police Chief, Charged With Having Sex, Booze and Pot With Teens
New York Lawyer - January 22, 2008

NEW CITY, N.Y. (AP) - A former suburban prosecutor, who is also the wife of a police chief, has been indicted on charges of statutory rape, sex abuse and endangering children. Beth Modica, a mother of four, is accused of having sex, alcohol and marijuana with high schoolers. She pleaded not guilty Tuesday in Rockland County Court. Her attorney said it's the first time Modica's character has ever been questioned.

Modica was assistant Rockland County district attorney in the early 1990s. Until earlier this month she was deputy attorney for the Town of Ramapo and the Village of Sloatsburg. Her husband, Paul Modica, is police chief of Spring Valley. District Attorney Thomas Zugibe (ZOO guh bee) said Modica engaged in sex with underage males several times at her home and at the home of a 16-year-old victim.

Tuesday, January 22, 2008

U.S. Supreme Court: New York's "Stupid System" (MORE, CLICK HERE)

Perspective - Supreme Spotlight on a 'Stupid' System
By James Sample and Richard Samp - January 22, 2008 - The New York Law Journal

It is not every day that a U.S. Supreme Court justice writes a separate one-paragraph opinion merely for the purpose of pointing out that, as a matter of policy, a state law is "stupid." That is remarkable enough, but when the law in question governs the third branch of government in a state that is the world's 11th largest economy, such bluntness should not be ignored.

Last week, the U.S. Supreme Court upheld New York's byzantine process for selecting trial judge nominees, concluding that the scheme does not violate the First Amendment. Justice John Paul Stevens concurred in that judgment, but wrote separately "to emphasize the distinction between constitutionality and wise policy." Pointing to "glaring deficiencies" in New York's opaque, exclusionary system, Justice Stevens, joined by Justice Souter, stated:

But as I recall my esteemed former colleague, Thurgood Marshall, remarking on numerous occasions: "The Constitution does not prohibit legislatures from enacting stupid laws."

New York is one of 33 states that elects its general jurisdiction trial court judges in contestable elections. Every single one of the other 32 states allows candidates to compete for their party's nomination (or a place on a nonpartisan election ballot) by filing notice, paying a small fee, or gathering signatures directly among party voters. Not so in New York.

Although the state Constitution guarantees that "the justices . . . shall be chosen by the electors [i.e., the voters] of the judicial district in which they are to serve," justices are selected through a complex de facto appointment system controlled by political party leaders. Predictably, patronage is prioritized ahead of the People.

The case of López Torres v. New York State Board of Elections arises from the last remnant of a bygone era. For a century, local party machines across America controlled who could sit as a trial judge. It was often a feast for corruption and a way to keep minorities and others not beholden to the power structure off the bench. A century of progressive reform efforts have stripped party leaders of that power in nearly every jurisdiction. In New York, party bosses are no longer even allowed to choose low-level civil employees.

Yet, in the words of Governor Eliot Spitzer, New York's unique system remains "the last vestige of real patronage in the political party structure." Recognizing that sad fact, and its far sadder consequences for the quality of New York's bench, an extraordinary coalition of reformers, prosecutors, civic leaders, minority groups, bar leaders, former judges and leaders of the bar joined the plaintiffs in seeking affirmance of lower court rulings that had held the scheme unconstitutional. Those efforts proved unsuccessful.

The push for reform, however, will continue. Many leaders, including Mr. Spitzer, think a commission-based appointment process is ultimately the best solution. Others, such as Senate Judiciary Chair John DeFrancisco, prefer elections with actual access and accountability. In short, reasonable people disagree as to the question of elections versus appointments. Unfortunately, New York's conventions represent the worst aspects of both systems and the attributes of neither. On that count, Mr. Spitzer and Mr. DeFrancisco not only agree, but are in good company.

For example, an amicus brief filed by the City of New York, the New York State and City Bar Associations, and the Fund for Modern Courts, described New York's scheme as "the worst of all worlds" in which unaccountable leaders "base their choices on political loyalty and party credentials, rather than on professional judicial qualifications."

Disinterested conservatives and liberals agree. According to political scientists Norman Orenstein of the American Enterprise Institute and Thomas Mann of the Brookings Institute, "As in the former Soviet Union where voters had a 'choice' of a single candidate picked by the ruling Communist Party, voters in New York's Supreme Court primary enjoy all of democracy's ceremonies without any of its substance." It may make one's head spin, but under the Court's decision last week, such a falsehood does not violate the First Amendment.

Prospectively as before, reform efforts will pose not a clash of red versus blue, but rather of insiders versus everyone else. Because fiefdoms are rarely surrendered voluntarily, the plaintiffs are considering further litigation options, including the possibility of a claim under the New York State Constitution. We hope such options will be unnecessary.

To that end, another concurring opinion by Justice Anthony Kennedy, and joined by Justice Stephen Breyer, stated that if New York's system does not "produce both the perception and the reality of a system committed to the highest ideals of the law" the system "ought to be changed and to be changed now."

New York's system fails to produce either that perception or that reality. Accordingly, and to borrow from Justice Stevens, failing to fix it would be, in a word, "stupid."

James Sample is counsel in the Democracy Program of the Brennan Center for Justice at New York University School of Law. The Brennan Center represents the plaintiffs in López Torres v. New York State Board of Elections. Richard Samp is chief counsel of the Washington Legal Foundation, a conservative public interest law firm. WLF filed an amicus brief supporting the challenge to New York's system.

Monday, January 21, 2008

Eight Encouraging Words

Dr. Martin Luther King, Jr. said, "Injustice anywhere is a threat to justice everywhere."

Saturday, January 19, 2008

Judge Ignores First Amendment; Silences Blogging Attorney (MORE, CLICK HERE)

Blogging lawyer silenced as judge expands gag order in Liberty City 7 case
By Vanessa Blum - January 12, 2008 - South Florida Sun-Sentinel.com

A prominent South Florida criminal defense lawyer who writes online commentary about federal court cases can no longer opine on the so-called Liberty City 7 terror case because the judge has expanded a sweeping gag order.

David O. Markus, an affable attorney who is often critical of prosecutors, gave a forlorn sign-off Friday explaining how he had agreed to challenge the gag order on behalf of a defense lawyer in the case, only to find himself silenced.

"Gagged?" Markus wrote on the Southern District of Florida Blog at http://sdfla.blogspot.com, saying he would fight the order through legal channels. Markus represents attorney Joel DeFabio, who in turn represents acquitted defendant Lyglenson Lemorin. Since the jury's verdict Dec. 13, DeFabio has been protesting the gag order, which prevents his client, the defendants, their lawyers, witnesses and others connected to the case from speaking with reporters.

On Thursday, U.S. District Judge Joan Lenard extended the order to include DeFabio's "agents"— a reference Markus took to mean himself. Taking aggressive steps to limit publicity related to the case, Lenard had previously applied the order to attorneys representing Lemorin in deportation proceedings.

Attorney Floyd Abrams, a free speech advocate, called the gag order "unusual" because it affects people not involved in the criminal case.

"Judges have considerable, but not unlimited, power to limit the speech of those before them," Abrams said in a telephone interview from his office in New York.

Lemorin, a possible defense witness when the terror case is retried, is in immigration custody. The Department of Homeland Security is trying to deport Lemorin to his native Haiti based on terrorism allegations, although the jury in the case found him not guilty and he is a legal U.S. resident.

In court papers, Markus argued Lenard must allow Lemorin and his attorneys to exercise their First Amendment rights.

"He should be permitted to speak about the first trial, his acquittal, his immigration case, and anything else unrelated to his potential testimony in the second trial," the brief states.

A retrial for Lemorin's co-defendants is set to begin later this month. The first jury could not agree on charges the men tried to join forces with al-Qaida in plots to bomb Chicago's Sears Tower and the Miami FBI building.

Judge Charged, then not charged, with Tampering with Evidence (MORE, CLICK HERE)

Prosecutor Quashes Charges Against Judge
By RALPH BLUMENTHAL - January 19, 2008 - The New York Times

HOUSTON — A grand jury’s bitter backroom struggle to charge a Texas Supreme Court justice and his wife in the burning of their house burst into the open on Friday after a prosecutor who had opposed the indictments went to court and had them quashed.

The grand jury foreman and assistant foreman said political favoritism was behind the decision to drop the day-old charges against the justice, David M. Medina, and his wife, Francisca.

“I felt like a dentist pulling teeth,” said Robert Ryan, 63, the foreman, a real estate broker and a previous grand juror. “The district attorney’s office did not want to prosecute this case.”

Mr. Ryan said his suspicions were aroused early when District Attorney Charles A. Rosenthal Jr. of Harris County said he had assured Justice Medina that the judge was not a target of the investigation. The officials are Republicans.

“My hope,” Mr. Ryan said, “is that early next week the grand jury will be reconvened and subpoena more documents and witnesses to back up what we obviously feel is probable cause, and let the chips fall where they may.”

Mr. Rosenthal, who is facing pressure to resign over e-mail love notes and sexually explicit and racially charged messages from his office, referred questions to his prosecutor in the case, Vic Wisner, who said, “Any claim that I stonewalled is not true.”

“We have an ethical duty to seek justice,” said Mr. Wisner, a 24-year-veteran of the office. “And it would be unlawful, unethical and irresponsible for me to proceed with a case that I do not think has the ability to get beyond a directed verdict of acquittal, let alone beyond a reasonable doubt.”

He said that it would be unlawful to comment further and that the grand jurors were violating the law if they commented on the proceedings.

Mr. Ryan and his assistant foreman, Jeffrey Dorrell, 52, a civil trial lawyer, and another grand juror who agreed to be interviewed, Dan Hall, 57, a landowner, said they had not discussed the evidence and so had not broken the law. They all described themselves as staunch Republicans, as were all 12 grand jurors, as far as they knew, they said.

Terry W. Yates, a lawyer for Justice Medina, filed a petition on Friday against Mr. Ryan and Mr. Dorrell for a contempt-of-court proceeding based on comments in The Houston Chronicle. The Texas Code of Criminal Procedure says a grand juror “who discloses anything that transpires before a grand jury” in the course of official duties is liable to up to 30 days in jail and a $500 fine.

Fire investigators reported finding an accelerant in the blaze on June 28 in the Medinas’ garage in Spring, a northern suburb of Houston. The blaze spread to their house and two others.

In the indictments, Justice Medina, who is on the state’s highest civil court, was charged with a count of tampering with evidence, a threatening letter he reported having received. Mrs. Medina was charged with one count of arson.

Mr. Wisner said his position on insufficient evidence was “also the opinion of the Harris County fire marshal’s office.”

But the chief investigator in that office, Dan Given, declined to confirm that, referring questions to the prosecutor’s office.

Mr. Ryan said Mr. Wisner’s assertion surprised him. “The testimony of the arson investigator is what we went on,” the jury foreman said. “Draw your own conclusion if it was sufficient.”

Although a grand jury may be guided by a prosecutor, it alone decides in secret if there is probable cause to charge someone with a crime. A petit jury then determines guilt or innocence.

Dick DeGuerin, a leading criminal lawyer here representing Mrs. Medina, said the accelerant was explainable because any homeowner had chemicals like mower fuel and weed defoliants in his garage. Mr. DeGuerin portrayed the Medinas as innocent victims of “a runaway grand jury.”

“If the D.A. says there’s not enough evidence, why in the world are they indicting?” he asked. “To indict a public figure on no evidence is outrageous. It’s done indelible damage to Justice Medina.”

Robert Black, a spokesman for Gov. Rick Perry, who appointed Justice Medina, said Mr. Perry never discussed the case with Mr. Rosenthal or anyone else.

“He has known David Medina a long time and has a lot of respect for him,” Mr. Black said of the governor. “But the legal process has to run its course, and it’s improper for him to be involved at all.”

Justice Medina was appointed to the court in 2004 and was then elected to a six-year term in 2006.

Mr. Ryan said that the grand jury was experienced, with two lawyers and three police officers, and that at least half the members had been grand jurors multiple times.

“We’ve been to the rodeo before,” he said. “I know the system.”

He said: “My antennae were raised when I read in The Houston Chronicle that Chuck Rosenthal called Justice Medina and told him to appear before the grand jury, but that he would not be a target. It wasn’t a couple weeks later that Mr. Wisner suddenly cooled and said, ‘I don’t think you got anything.’ ”

Mr. Dorrell said the panel’s feeling was “if the D.A. does not have enough evidence, get some more.”

Mr. Ryan said, “We asked for things they never produced.”

On Thursday, he continued, Mr. Wisner sought to block a vote and “we met over his objection.”

The prosecutor told them, he said: “ ‘Don’t bother to bring an indictment. We’re going to “nolo” it.’ ”

They sent Mr. Wisner out of the room and deliberated, Mr. Ryan recounted, and called him back with instructions to draw up two indictments.

“He said, ‘I will not,’ ” Mr. Ryan added. “We said, ‘Get your boss.’ He slammed the door.”

But 15 minutes later, Mr. Ryan said, Mr. Wisner came back “meekly,” as instructed, although Mr. Ryan added, “We knew he was going to move to dismiss.”

FEMINIST LEADER ASSAILS HILLARY CLINTON (MORE, CLICK HERE)

FOR IMMEDIATE RELEASE ON AND AFTER JANUARY 15, 2008
MEDIA CONTACT: Zach Lorber ▪ Tel: 914-997-8105 ▪ Fax: 914-684-6554

FEMINIST LEADER ASSAILS HILLARY CLINTON, NATIONAL NOW-PAC & NOW-NYS FOR BLATANT SEXISM

CENTER FOR JUDICIAL ACCOUNTABILITY, INC. (CJA)

A national, nonpartisan, nonprofit citizens’ organization, working, pro bono, to protect the public interest in the integrity of our judicial selection and judicial discipline processes. Its mission is to ensure that only the most qualified trial lawyers become, and remain judges.

E-mail: judgewatch@aol.com Web: http://www.judgewatch.org

(White Plains, NY 1/15/08) In response to news releases from the National Organization for Women-Political Action Committee, and NOW-NYS, urging women to vote for Senator Hillary Clinton because she is a woman, Doris L. Sassower, Co-founder and President of Center for Judicial Accountability, Inc., a former President of the New York Women’s Bar Association, honored in 1981 with a Special Award from National Organization of Women-NYS “for outstanding achievements on behalf of women and children,” and profiled as one of the “Feminists Who Changed America, 1963-1975 in a recently launched book by the same name, says:

Such sexist appeal represents outdated, divisive, un-American thinking. It is because of my longtime passionate commitment to equal rights for women that I am urging NOW’s Political Action Committee to withdraw its endorsement of Senator Clinton for President and that women’s organizations and women en masse across the country NOT endorse or vote for Senator Clinton simply because she is a woman. More than that, much as it pains me, I specifically urge them NOT to vote for the Senator Clinton at all, based on her serious malfeasance as a U.S. Senator, a record that includes corruption of the federal judiciary and complicity in gross governmental abuse in violation of law.

A previous press release, hereinbelow, issued by CJA, details how, in May 2003, Senator Clinton’s staff counsel prevented CJA’s public interest advocate, Elena Ruth Sassower, from testifying at a public confirmation hearing in opposition to the Clinton-endorsed nomination of one of President Bush’s nominees, a Republican New York Court of Appeals judge, to a lifetime federal judgeship on the 2nd Circuit Court of Appeals, which hears appeals from all New York federal district courts. Her respectful 23-word request to testify against this Bush judicial nominee led to her unprecedented arrest and prosecution by our government for “Disruption of Congress.”

She was tried before another recent Bush nominee, whose confirmation had likewise been the subject of a pre-arranged “no opposition” confirmation hearing. After he refused to disqualify himself notwithstanding judicial ethics rules required him to do so when his “impartiality might reasonably be questioned,” she was wrongfully convicted, and this judge sentenced her to the maximum six months in prison, incarcerating her immediately in a DC Jail. There she spent the July 4th 2004 weekend in solitary confinement for five days. Through all that time and even after her release six months later, Senator Clinton kept silent and did not lift a finger to help her own constituent, Elena Ruth Sassower, albeit, on her return from jail two days before Christmas 2004, she was hailed as a hero in her White Plains, NY hometown, as “Defender of the Constitution” and named “2004 White Plains Person of the Year.”

This is not just a women’s rights issue; it is a human rights issue -- a cause I fought for all my professional life as a lawyer and as president of the New York Women’s Bar Association nearly 40 years ago. At this defining moment in our nation’s history, much as it pains me to say, despite her history-making effort to become the first woman president and women’s natural yearning to see a woman do so, Senator Clinton does not deserve that high honor. She betrayed not only her constituents, but her country, by knowing disregard of sacrosanct democratic values, when she condoned by silence, inaction, and indifference the violation of constitutional rights by her own staff counsel and thereafter by others on the federal payroll. Senator Clinton bears full responsibility for that outrage and should be held accountable for her disrespect for an open, honest, and participatory federal judicial nominating process and for her collusion with those in government willing to pervert the truth and the Rule of Law for their own political and personal gain.

Perhaps, a DC Jail cell would befit the Senator’s crimes better than the Oval Office of the White House.”

# # #



CENTER FOR JUDICIAL ACCOUNTABILITY, INC. (CJA)

A national, nonpartisan, nonprofit citizens’ organization, working, pro bono, to protect the public interest in the integrity of our judicial selection and judicial discipline processes. Its mission is to ensure that only the most qualified trial lawyers become, and remain judges.

E-mail: judgewatch@aol.com Web: http://www.judgewatch.org

FOR IMMEDIATE RELEASE ON AND AFTER DECEMBER 23, 2007
MEDIA CONTACT: Zach Lorber ▪ Tel: 914-997-8105 ▪ Fax: 914-684-6554


SENATOR CLINTON CONDEMNED BY CENTER FOR JUDICIAL ACCOUNTABILITY, INC.

For Constitutional Violations In Not Protecting Her Constituent’s First Amendment Rights
When Her Own Staff Counsel Acted To Prevent Opposition Testimony At Judicial Confirmation Public Hearing


White Plains, NY (12/23/07) On May 22, 2003, White Plains, NY resident, Elena Ruth Sassower, Co-Founder and Coordinator of the Center for Judicial Accountability, Inc, rose, as the closing gavel came down at a U.S. Senate Judiciary Committee Public Confirmation Hearing Richard Wesley nomination to the 2nd Circuit Court of Appeals and respectfully asked: “Mr. Chairman, there’s citizen opposition to Judge Wesley based on his documented corruption as a New York Court of Appeals judge. May I testify?” Without answering the question, then Chairman Saxby Chambliss (R-GA) had Ms. Sassower forcibly removed from the hearing room by D.C. Capitol Police. She was handcuffed behind her back, arrested, incarcerated for 21 hours, and thereafter prosecuted by the U.S. Attorney’s Office for “Disruption of Congress.”

Prior to the hearing, Ms. Sassower visited Senator Clinton’s Washington, D.C. office and requested her to withdraw her announced support for the Wesley nomination. Ms. Sassower supplied documentation substantiating his corruption of the NY Court of Appeals. Instead of probing the very serious documented charges of her constituent, a longtime judicial reform activist, Senator Clinton’s Staff Counsel called the Secret Service. In turn, D.C. Capitol Police telephoned Ms. Sassower threatening that if she came to the Public Hearing and requested to testify in opposition to the Wesley nomination, she would be arrested.

On June 28, 2004, despite recommendations of the Probation Department and the U.S. Attorney’s Office that there be NO jail-time, D.C. Superior Court Judge Brian F. Holeman sentenced her to the maximum six months in jail, with a maximum fine, without bail, and denied her repeated requests for a stay pending appeal, after she declined his long list of probation conditions. These included a direction that she “stay away from and inside the United States Capitol Complex,” have no contact with Senator Clinton and her staff, and “write and send letters of apology to Senator Clinton,” among others, “…which state…your remorse for any inconvenience caused.” When Ms. Sassower said she would not write such letters because she would “not lie,” Judge Holeman ordered her taken straight to the D.C. Jail, with no opportunity to go home and settle her affairs. There she spent the July 4th weekend in solitary confinement and was not released from prison until December 23, 2004.

By contrast, at a May 7, 2003 U.S. Senate Armed Services Committee hearing, during testimony of then-Secretary of Defense Donald Rumsfeld, a group of eight protestors, loudly and repeatedly shouted “Fire Rumsfeld for war crimes!” and unfurled a banner that read “Fire Rumsfeld” before the protestors were escorted from the building. None of the eight were arrested or charged with “Disruption of Congress.” Ms. Sassower’s arrest on May 22, 2003, a mere 15 days later, was an unprecedented violation of her First Amendment and other constitutionally guaranteed rights.

In all that time, before, during, and since Ms. Sassower’s arrest, imprisonment, and release after her six-month incarceration, Senator Clinton did not lift one finger to help her constituent, whose arrest and imprisonment her own office had instigated – closing her eyes and ears to the appeals of other constituents and outraged members of the public from all over the country and abroad that she initiate remedial action. Ironically, following Ms. Sassower’s release from jail, she was voted 2004 “White Plains Person of the Year/Defender of the Constitution” in her hometown. Still no word on the subject from now Candidate Clinton. Yet, husband Bill boasts she is a “world-class genius”… with an unbroken record of making decisions that have had a positive change in other people's lives.”
# # #

Lawyer Reveals Secret About Prosecutorial Misconduct - After 10 years!(MORE, CLICK HERE)

Lawyer Reveals Secret, Toppling Death Sentence
By ADAM LIPTAK - January 19, 2008 - The New York Times

For 10 years, Leslie P. Smith, a Virginia lawyer, reluctantly kept a secret because the authorities on legal ethics told him he had no choice, even though his information could save the life of a man on death row, one whose case had led to a landmark Supreme Court decision.

Mr. Smith believed that prosecutors had committed brazen misconduct by coaching a witness and hiding it from the defense, but the Virginia State Bar said he was bound by legal ethics rules not to bring up the matter. He shared his qualms and pangs of conscience with only one man, Timothy G. Clancy, who had worked on the case with him.

“Clancy and I, when we were alone together, would reminisce about this and more or less renew our vows of silence,” Mr. Smith told a judge last month. “We felt that there was nothing that could be done.”

But the situation changed last year, when Mr. Smith took one more run at the state bar’s ethics counsel. “I was upset by the conduct of the prosecutor,” Mr. Smith wrote in an anguished letter, “and the situation has bothered me ever since.”

Reversing course, the bar told Mr. Smith he could now talk, and he did. His testimony caused a state court judge in Yorktown, Va., to commute the death sentence of Daryl R. Atkins to life on Thursday, citing prosecutorial misconduct.

It was in Mr. Atkins’s case that the United States Supreme Court ruled in 2002 that the Constitution bars the execution of the mentally retarded. But Virginia continued to pursue the death penalty against him, saying he was not mentally retarded. If Thursday’s decision stands, that issue may never be resolved.

Mr. Smith had represented Mr. Atkins’s co-defendant, William Jones. In a tape-recorded debriefing session with prosecutors on Aug. 6, 1997, Mr. Jones told his version of the 1996 killing of Eric Nesbitt, whom the two men had robbed and forced to withdraw money from a bank machine.

The crucial point was who had shot Mr. Nesbitt. Under Virginia law, only the triggerman was eligible for the death penalty.

“As he began to describe the positions of the individuals and the firing of the shots,” Mr. Smith said last month, referring to his client, a prosecutor “reached over and stopped the tape recorder.” According to Mr. Smith’s testimony and a memorandum he prepared soon after the debriefing, the prosecutor, Cathy E. Krinick, said, “Les, do you see we have a problem here?”

The problem was that Mr. Jones’s account did not match the physical evidence. “This isn’t going to do us any good,” Ms. Krinick said, according to Mr. Smith.

For 15 minutes, Mr. Smith said, prosecutors coaxed and coached Mr. Jones to produce testimony against Mr. Atkins that did match the evidence. They flipped over a table and pretended it was a truck. “We used a chair, or something like that, to simulate the open door,” Mr. Smith testified, “because only one of the doors on the truck would open.”

When the tape was turned back on, Mr. Jones’s story bolstered the case against Mr. Atkins as the triggerman. The Atkins defense did not learn of the coaching session for a decade, when Mr. Smith was freed from his ethical obligation not to prejudice his own client’s case. Mr. Jones was sentenced to life in prison, and his case is concluded.

Ms. Krinick, now in private practice, did not return a call seeking comment. Nor did the commonwealth’s attorney for York County, Eileen M. Addison. It is not known whether the state intends to appeal.

In a court filing last year, Ms. Addison, who also attended the debriefing, called Mr. Smith’s account “false and libelous” and said her office “adamantly denies” it. But there are only about an hour and three-quarters of material on the audiotape, even though a detective announced that it started rolling at 4:16 p.m. and stopped at 6:16 p.m.

In the court filing, Ms. Addison said the judge, Prentis Smiley Jr. of the York County Circuit Court, was not free to entertain a motion based on prosecutorial misconduct because Mr. Atkins’s case was before him only on the question of mental retardation.

Mr. Smith has a modest legal practice, working alone. “I do criminal work, civil work, real estate,” he testified last month.

He said he understood the reasoning behind the state bar’s initial advice. “It certainly practically would have put in jeopardy all the things that had been done or that we had done for our client,” he testified last month.

Mr. Smith wrote to the bar again in March, this time emphasizing that his client’s case was over. A lawyer there would not give him an answer in writing, Mr. Smith said, but told him over the phone that he could “come forward and make known what had gone on at the meeting.” Mr. Smith did not name the lawyer.

James McCauley, the state bar’s ethics counsel, was out of the office on Friday and did not respond to a voice mail message seeking comment.

Ronald D. Rotunda, who teaches legal ethics at George Mason University, said the rules in Virginia were murky about what lawyers in Mr. Smith’s position could do. But if the bar’s initial advice was correct, Professor Rotunda added, “there is something wrong about the law, particularly if you are talking about execution or years in prison.”

Richard G. Parker, a lawyer at O’Melveny & Myers in Washington who represented Mr. Atkins along with Joseph A. Migliozzi Jr., praised Mr. Smith. “He had no dog in this fight,” Mr. Parker said. “Les Smith brooded on this and came out and said something to do the right thing.”

Executions in Virginia usually occur within seven years of the imposition of a death sentence, legal experts there said. So in a typical case — without the intervention of the Supreme Court — Mr. Atkins would be dead by now and Mr. Smith’s revelations would have done him no good.

In a brief interview, Mr. Smith said he did not think he should speak about his experiences because “there may be another forum for me to testify in.” He added, a little cryptically, “I did what I have done.”

At a hearing last month, Mr. Smith was asked whether “the concerns you’ve been thinking about for 10 years have been addressed in your own mind?”

“Yes,” he said, “in that whatever went on is going to be exposed and someone will have made a decision about what went on. But I was also prepared to keep quiet had the bar come back with an opposite answer in March.”

Friday, January 18, 2008

Judge Told Good Ruling Would Get Him to Federal Bench (MORE, CLICK HERE)

Prosecutors: Judge Was Told That Ruling for Star Litigator Could Be Ticket to the Federal Bench
New York Lawyer - January 18, 2008
By Michael Kunzelman - The Associated Press


A Mississippi judge who ruled in favor of Richard "Dickie" Scruggs in a dispute over legal fees was told by a friend that siding with the prominent lawyer could mean consideration for the federal bench, prosecutors allege in court papers unsealed this week.

Hinds County Circuit Judge Bobby DeLaughter has denied accepting any bribes and defended his ruling in favor of Scruggs in the dispute with other lawyers over fees from asbestos litigation.

However, during a closed-door proceeding in federal court last week, a prosecutor said Scruggs dispatched intermediaries to tell DeLaughter that "if he ruled in his favor he would pass his name along for consideration regarding the federal judgeship."

Former Hinds County District Attorney Ed Peters, a friend of the judge, later "passed the information along" to DeLaughter, Assistant U.S. Attorney Thomas Dawson told a U.S. district judge in Oxford, Miss., according to a transcript.

"The government would further show that, in fact, DeLaughter's name was submitted for consideration for a federal judgeship, and DeLaughter was so notified," Dawson added.

Scruggs is a brother-in-law of former Sen. Trent Lott, R-Miss., whose duties included recommending nominees for federal judgeships.

Dawson was outlining charges against attorney Joseph Langston, who pleaded guilty Jan. 7 to conspiring with Scruggs and others to illegally influence DeLaughter. Scruggs and DeLaughter aren't charged with wrongdoing in the case.

Scruggs has pleaded not guilty to trying to bribe another Mississippi judge in a separate dispute over $26.5 million in attorneys' fees. John Keker, an attorney for Scruggs, has denied that his client tried to influence DeLaughter.

Court papers unsealed Monday accuse Langston, Peters and former state Auditor Steven Patterson of splitting $3 million that Scruggs saved "as a result of rulings in favor of Scruggs by Judge DeLaughter resulting in a settlement of the case."

In December 2005, Scruggs hired Langston and attorney Timothy Balducci to represent him in the asbestos-fees case, which was assigned to DeLaughter. Langston later hired Peters and paid him $1 million.

In at least one instance, according to Dawson, DeLaughter e-mailed to Peters a rough draft of a planned opinion.

"And Langston and Balducci and Patterson would be able to see it before any (final version) was filed," Dawson added.

Balducci and Patterson have pleaded guilty to trying to bribe Circuit Court Judge Henry Lackey and are cooperating with investigators in their case against Scruggs.

Hiram Eastland Jr., a lawyer for Patterson, wouldn't comment on the prosecutors allegations, but said his client is "fully cooperating" with investigators.

Peters didn't immediately return calls seeking comment Thursday.

Lott spoke to DeLaughter and other potential candidates about a vacancy in the federal court system, but the senator supported Halil "Sul" Ozerden, who was sworn in as a federal judge in Mississippi in August, according to Lott's former chief of staff, Brett Boyles.

DeLaughter did not immediately respond to calls seeking comment Thursday. But in an interview last week with The Associated Press, DeLaughter challenged anyone who doubted his judicial integrity to read his ruling in the case.

"I have not taken any bribes of any sort. Have not issued any rulings in exchange for money or anything else," DeLaughter said. "If one were to go back and look at my very lengthy and detailed ruling, I think it would be very evident ... they are on a solid legal basis and would stand any scrutiny."

DeLaughter, a former assistant district attorney, prosecuted Byron De La Beckwith in the early 1990s for the 1963 murder of NAACP field secretary Medger Evers.

Scruggs became a multimillionaire by suing asbestos and tobacco companies in the early 1990s. He set his sights on insurance companies after Hurricane Katrina, suing on behalf of homeowners. His case against tobacco companies was portrayed in the 1999 movie "The Insider."

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See Video of Senator John L. Sampson's 1st Hearing on Court 'Ethics' Corruption

The first hearing, held in Albany on June 8, 2009 hearing is on two videos:


               Video of 1st Hearing on Court 'Ethics' Corruption
               The June 8, 2009 hearing is on two videos:
         
               CLICK HERE TO SEE Part 1
               CLICK HERE TO SEE Part 2