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Monday, January 31, 2011

Retiring Nicely After Betraying Public’s Trust

Retiring Nicely After Betraying Public’s Trust
The New York Times by Clyde Haberman - January 31, 2011

Guy J. Velella, a former state senator from the Bronx who died last week, was bidden farewell at a funeral service on Monday. His legacy, however, lives on. Among other things, Mr. Velella will be remembered for having turned a career of public service into one of public shame by taking bribes and going to jail for his corruption. He will also be remembered as someone who pocketed public money even after pleading guilty in 2004. Every year, his conscience unburdened, Mr. Velella collected a state pension of more than $75,000. “The law says I’ve earned it,” he told The Daily News a few months ago. “I’m entitled to it. I take it.” Mr. Velella was not the only corrupt public official with a sense of entitlement. That is why new calls have arisen to change the law so that bribe takers, kickback schemers, pay-to-play chiselers and other finaglers holding public office do not enjoy the same retirement privileges as their honest colleagues. In Albany, the lineup of cosseted crooks has grown long. High on the list is Alan G. Hevesi, the disgraced former state comptroller, who receives an annual state pension of about $105,000. Others picking up impressive pensions after being found guilty of crimes have included Joseph L. Bruno, the former State Senate majority leader (about $96,000 a year); former Assemblyman Clarence Norman Jr. ($43,000); former Assemblywoman Gloria Davis ($62,000); and Anthony S. Seminerio, a former assemblyman who died in prison four weeks ago ($71,000). A new addition is Vincent L. Leibell III, a former state senator from Putnam County, who pleaded guilty in December to charges rooted in a kickback scheme. Like Mr. Seminerio, he is eligible for a yearly state pension of $71,000. In some Albany circles, there is a feeling that enough is enough. It is shared by the present state comptroller, Thomas P. DiNapoli, who got his job in 2007 after Mr. Hevesi washed out. The other day, Mr. DiNapoli proposed legislation to take away pensions from an array of elected officials and their appointees — potentially thousands of people at state and local levels — if they are convicted of felony charges involving an abuse of office. Because of limitations imposed by the State Constitution, this penalty would apply only to future officials. Mr. Hevesi and the others could keep cashing those pension checks. But to encourage present officeholders to walk the straight and narrow, Mr. DiNapoli recommended that wrongdoers be fined as much as double whatever money they made from their unlawful behavior.

“Public confidence in government has been bruised and battered,” the comptroller said, a statement that would seem to defy contradiction. The goal, he said, is to “remind every public official that violating the public trust will not to be tolerated.” Some other states have comparable pension-stripping laws, and Mr. DiNapoli’s aides said he was confident that New York would enact its own this year. Others are not so sure. They include State Senator Liz Krueger of Manhattan, who has sponsored bills along those lines since the Velella scandal burst open seven years ago. She has gotten nowhere. One argument she often hears, Ms. Krueger said Monday, is that to take away pensions would unfairly penalize family members who may depend on that money, and who did nothing wrong themselves. At least, she said, “that’s the argument that people can make to me with a straight face.” Her response is: “You know, when real people go to jail, their families pay a price, too. I thought we were sort of real people.” Ms. Krueger said she doubted that “a free-standing bill” would get enough votes for passage. Instead, she suggested that pension forfeiture be “rolled into an ethics reform package” that is expected from Gov. Andrew M. Cuomo. Whatever form the legislation may take, the principle remains the same. It’s quite simple: If you violate the public’s trust, you don’t deserve the public’s money. “I really believe that you, the public, get to hold me to a higher standard,” Ms. Krueger said. No one, after all, forced her to run for office. But don’t be too glum, you in high places with sticky fingers. Things could always be worse. Forfeit your pension? How about forfeiting your life? In China, they execute your kind. haberman@nytimes.com


********** Related Story..... When Our Public Officials Lie......

When Police Officers Lie
Legal System Struggles With How to React When Police Officers Lie
The Wall Street Journal by AMIR EFRATI - January 29, 2009

It's one of the most common accusations by defendants and defense attorneys -- that police officers don't tell the truth on the witness stand. Of course, defendants themselves can be the ones lying, but the problem of police perjury -- and what can be done about it -- is being debated anew. Fueling the discussion are recent court cases in New York City and Boston that indicated officers may have lied and a U.S. Supreme Court ruling this month that could have broader implications for cases in which improperly obtained evidence is in dispute.

Questionable testimony by police comes up most often in firearm- or drug-possession cases in which officers often testify that a defendant had a bulge in his pocket -- which they thought might be a gun -- or dropped drugs in plain sight as they approached him, giving the officers the right to seize the contraband. Defense lawyers say in many of these cases, officers are "testilying" and that the guns or drugs were actually discovered when their clients were unjustly frisked by officers. They also say testilying frequently occurs in more serious cases. In Boston, a federal judge last week ruled that a police officer there falsely testified at a pretrial hearing in a gun-possession case about the circumstances of the defendant's arrest. The judge, Mark Wolf, is considering sanctions against the prosecutor for not immediately disclosing that the officer's testimony contradicted what he told prosecutors beforehand.

A federal judge in Brooklyn, N.Y., last fall ruled that a U.S. marshal and a New York City police officer lied when they testified that a defendant dropped two bags of drugs in front of them and then invited the officers to his apartment, where he revealed a large cache of cocaine. Though few officers will confess to lying -- after all, it's a crime -- work by researchers and a 1990s commission appointed to examine police corruption shows there's a tacit agreement among many officers that lying about how evidence is seized keeps criminals off the street. To stem the problem, some criminal-justice researchers and academic experts have called for doing polygraphs on officers who take the stand or requiring officers to tape their searches.

A Supreme Court ruling this month, however, suggests that a simpler, though controversial, solution may be to weaken a longstanding part of U.S. law, known as the exclusionary rule. The 5-4 ruling in Herring v. U.S. that evidence obtained from certain unlawful arrests may nevertheless be used against a criminal defendant could indicate the U.S. is inching closer to a system in which officers might not be tempted to lie to prevent evidence from being thrown out. Criminal-justice researchers say it's difficult to quantify how often perjury is being committed. According to a 1992 survey, prosecutors, defense attorneys and judges in Chicago said they thought that, on average, perjury by police occurs 20% of the time in which defendants claim evidence was illegally seized. "It is an open secret long shared by prosecutors, defense lawyers and judges that perjury is widespread among law enforcement officers," though it's difficult to detect in specific cases, said Alex Kozinski, a federal appeals-court judge, in the 1990s. That's because the exclusionary rule "sets up a great incentive for...police to lie."

Police officers don't necessarily agree, says Eugene O'Donnell, a former police officer and prosecutor who teaches law and police studies in New York. "Perjury is endemic in the court system, but officers lie less than defendants do because generally they aren't heavily invested in the outcome of the cases," he says. Testilying may have taken off after a 1961 Supreme Court decision boosted the exclusionary rule by requiring state courts to exclude -- or throw out -- some evidence seized in illegal searches, such as when police frisk people without probable cause or search a residence without a warrant. Immediately after the decision, Mapp v. Ohio, studies showed that the number of annual drug arrests in the U.S. -- most cases are prosecuted in state court -- didn't change much but there was a sharp increase in officers claiming that suspects dropped drugs on the ground. "Either drug users were suddenly dropping bags all over the place or the cops were still frisking but saying the guy dropped the drugs," says John Kleinig, a professor at John Jay College of Criminal Justice.

This month's Supreme Court decision added an exception to the exclusionary rule by holding that the prosecution of an Alabama man for drug- and firearm-possession charges was valid, even though the contraband was found after the man was wrongly arrested and searched. Police officers had mistakenly thought he was subject to an arrest warrant. Throwing out evidence because of wrongful searches and arrests "is not an individual right and applies only where its deterrent effect outweighs the substantial cost of letting guilty and possibly dangerous defendants go free," wrote Chief Justice John Roberts. Civil liberties advocates and defense lawyers say losing the exclusionary rule would harm the public. "We'd risk far greater invasions of privacy because officers would have carte blanche to do outrageous activity and act on hunches all the time," says JaneAnne Murray, a criminal defense lawyer in New York. Write to Amir Efrati at amir.efrati@wsj.com

Sunday, January 30, 2011

Corrupt Judge Francis Nicolai in the News Again

9 judges in region get both salary, pension
The Journal News by Joseph Spector, Sean Lahmanand & Jonathan Bandler - January 30, 2011

When Thomas Walsh II was appointed Rockland County surrogate in 2008, state and county judges were complaining that they'd gone nearly a decade without a pay raise. It was less of a concern for Walsh, whose retirement that year allowed him to start collecting a state pension on top of his judicial salary. Walsh, 62, is one of 17 so-called double-dipping judges in New York — including eight others in Westchester and Rockland — and his combined income of more than $240,000 last year tops the list, according to a review of payroll and pension records by Gannett's Albany Bureau. Double dippers collect public pensions and salaries simultaneously. Nine of the 12 whose total income topped $200,000 are from the Lower Hudson Valley. In addition to Walsh, the judges who received the highest compensation were state Supreme Court Justice Orazio Bellantoni in White Plains at $225,453, followed by Justice John F. O'Donnell in Buffalo at $221,233. They were followed by four judges in Rockland — state Supreme Court Justice William Kelly ($218,829), Rockland County Judge Charles Apotheker ($215,463) and Justices Alfred Weiner ($214,885) and Robert Berliner ($208,893) — and two from Westchester: Court of Claims Judge Robert Neary ($206,241) and state Supreme Court Justice Francis Nicolai ($205,790). The records were provided by the state Comptroller's Office after a Freedom of Information Act request. They cover payments through mid-December, meaning each of those judges' total compensation for 2010 was about $6,000 higher.

Pension, Salary Earned

The list does not include state Supreme Court Justice J. Emmett Murphy, though next year it will. Murphy, 69, won re-election in November and then put in his retirement papers, even though he plans to stay on the bench for seven more years. The amount of Murphy's pension was unavailable last week. He said he expects it to be about $80,000. But it could be higher because he worked the same number of years as Bellantoni, whose pension is more than $95,000. Murphy said New York judges should be able to avail themselves of the double compensation because they have been stuck for a dozen years at a salary that is the lowest in the country when adjusted for cost of living. And the state doesn't lose out, he said, because if he had come up short in the election, he'd get the same pension for a complete retirement and the new judge would be getting the same salary. "I earned the pension by working 41 years in the system. I earned the salary by winning the election and showing up to work every day," Murphy said. "I don't see that I have anything to apologize for." David Bookstaver, a spokesman for the state court system, said the judges are elected or appointed, so the state has no ability to limit their pensions and salaries. "We don't hire judges, they are elected (or appointed) public officials so we have no discretion whatsoever," he said. Annual salaries for judges in New York include $136,700 for Supreme Court and Court of Claims and from $119,800 to $136,700 for County, Family and Surrogate courts. Nicolai, the former administrative judge of the Ninth Judicial District covering the Lower Hudson Valley, received an additional $6,000 last year as presiding judge of an appellate term. Walsh could not be reached for comment. His retirement followed decades as a deputy county attorney. His annual pension is $104,687. He also was a Haverstraw village justice for several years and a town justice there for a year before then-Gov. David Paterson appointed him surrogate. Walsh then held onto the seat by winning the 2008 election. Like all surrogate judges, he receives an annual stipend from the state Department of Taxation and Finance for "services rendered in connection with the administration of transfer and estate taxes." The stipends are based on the size of a county's population, and Walsh's payment last year was $4,251. The stipend and his surrogate salary equal the $136,700 salary for state judges.

State Pension Rules

Elected officials and judges can retire and collect their full pensions while keeping their job once they turn 65. But if they are younger, or entered the retirement system after 1995, their pensions are suspended each year once they hit $30,000 in salary. If their retirement is from a different public sector job, there is no limit on their pensions regardless of age. Retirement age for judges is 70, but state Supreme Court justices can stay on until age 76 if they receive approval from the court system. Donald Williams, 57, an Ulster County Court judge, collected $124,238 of his $131,400 salary through December. He also collects a $79,316 pension after serving 30 years as a prosecutor in Ulster County. Williams said he actually would have been penalized by the state if he didn't begin taking his pension after he was first elected in 2009. "I wanted to not collect the pension and rejoin the system," Williams said, saying it became cost prohibitive to do so. The judges taking pensions and salaries come as they are lobbying for their first pay raise in more than a decade. And they appear to be moving closer to a raise. Late last year, the Legislature and Paterson enacted a law to create the Commission on Judicial Compensation, which would evaluate every four years how much the roughly 1,300 state judges should be paid. The committee is set to release its initial recommendations later this year. The commission is a shift from the past practice of tying judicial pay to salary increases for state lawmakers, who also haven't had a raise above their $79,500 base salary since 1999. Some state lawmakers are seeking to require elected and appointed officials to contribute to a 401(k)-type system for their pensions, which would limit the public money that goes to the system and require higher contributions from employees. Sen. Greg Ball, R-Carmel, said elected officials should lead by example. He plans to introduce the legislation in the Senate. "Before we do any pension reform that affects working-class people, elected officials should step up to the plate first, moving from a defined-benefit toward a defined-contribution model and eliminating some of these lucrative loopholes," Ball said. JBANDLER@LOHUD.COM

The Sordid Nicholai History:


More on Corrupt Nicolai:


Saturday, January 29, 2011

New York Bar Seeks Limits on Investigations of Judges

New York Bar Seeks Limits on Investigations of Judges
The New York Times by William Glaberson - January 28, 2011

The New York State Bar Association recommended on Friday that the state adopt sweeping changes in the judicial-discipline system that could make it more difficult for judges to be removed from the bench. The 77,000-member bar association has no legal authority, but its action is expected to begin a contentious battle over the issue in Albany. Critics had said that the proposal, put forth by a Manhattan lawyers group, the New York County Lawyers Association, was framed to help judges facing charges and did not reflect the views of the public. But at its annual meeting in Manhattan, the state bar association, through its House of Delegates, accepted many parts of the proposal, effectively promising to work for changes in state law. Some of the recommendations would require legislation or amendments to the State Constitution. The broadly framed proposal would divide the state agency that investigates judges, the New York State Commission on Judicial Conduct, into two parts, one to prosecute judges and one to rule on the charges. It would also give judges early notice of investigations, would permit them to question investigators’ witnesses before any hearing and would add new limits on how much the commission could expand an investigation after an initial complaint. The bar association also called for the state to pay for lawyers for judges who are charged with misconduct. The judicial conduct commission investigates about 250 judges a year, and it publicly disciplined 15 judges last year. There are about 3,500 full- and part-time judges in the state. During a debate on Friday in the 298-member House of Delegates, some delegates said they knew of no problem with New York’s current judicial-discipline system, but for others, “it’s very important that we support our judges,” as one delegate put it. Dennis R. Hawkins, a delegate who is the executive director of the Committee for Modern Courts, a group that has focused on court issues for decades, noted that the proposal made no mention of a decades-old recommendation that judicial discipline hearings be open to the public. The hearings are secret under state law, and many judges favor keeping them closed. James B. Kobak Jr., the president of the New York Country Lawyers’ Association, said his group would study the secrecy requirement. The president of the state bar association, Stephen P. Younger, said changes in the judicial discipline procedure were needed “to protect those who are charged unfairly.” But Robert H. Tembeckjian, the administrator of the judicial conduct commission, said the commission would oppose the proposed changes. He said that if they were adopted it “would be harder to investigate and discipline judges who have committed misconduct.”

Mr. Tembeckjian was at the bar association meeting on Friday, at the Hilton New York. But he was not permitted to address the meeting. He said it was “absurd that they would not let me speak.” But Mr. Younger said the commission’s views had been considered and the association “followed its standard procedure” in hearing only from its own delegates. Still, during the debate, the Manhattan lawyers’ group backed down on two divisive proposals. The association withdrew a proposal to require “clear and convincing evidence” to prove judicial misconduct and dropped a proposal that would have required investigators to “accord judges the highest degree of respect” when looking into misconduct. Instead, the delegates passed a provision that would merely suggest that everyone involved with judicial-conduct investigations “treat each other with respect.” The Manhattan lawyers’ association agreed to the change after a New York City lawyer, Mark H. Alcott, suggested it during the debate. Mr. Alcott, a former state bar association president, said proposing that investigators must treat judges with the highest degree of respect “could cause a perception problem,” making it appear that the lawyers’ group wanted favorable treatment for judges.

Friday, January 28, 2011

$120 Million Federal Lawsuit Says 2 Top NYC Law Firms are "Hired Guns"

In a federal lawsuit filed in Manhattan on Wednesday, January 26, 2011, plaintiff Kris Sergentakis claims "hired guns" at Skadden Arps and Holland & Knight sough to violate his U.S. Constitutional Rights by 'bullying' the website host providers into shutting down his websites. The lawsuit, Case # 11-0542, filed in the District Court for the Southern District of New York raises various troubling issues. Sergentakis' allegations include:

  • "... Defendant WALTER apparently became upset over Plaintiff’s communication via his www.LeukemiaScandal.Com website over the Internet of a known fact that Defendant John Walter had admitted to Plaintiff in Defendant Walter’s office in 2003 that he (John Walter) had been arrested for child molestation."
  • "...Plaintiff began administering an internet website called www.LeukemiaScandal.Com - dealing with, among other things, the Plaintiff’s and public’s concern over non-profit organization related, unconscionable, improper, illegal and unethical activities by Defendants."
  • "...Plaintiff had “inside” information, involving alleged widespread misuse of tens of millions of dollars of donated money to LLS, and alleged improper kickbacks to, and demanded by, John Walter from various vendors throughout the United States, wherein, in fact, one particular LLS chapter is alleged to have had a “special arrangement” with John Walter, wherein involved parties improperly and personally profited at the expense of donated monies meant to assist people with Leukemia and Lymphoma."
  • "...Plaintiff’s www.LeukemiaScandal.Com website was suddenly and without warning attacked by paralyzing computer viruses."
  • "...Defendants attempted to pressure a federal judge into violating Plaintiff’s Constitutional Rights. That SDNY federal judge specifically denied the Defendants’ illegal attempt to violate Plaintiff’s Constitution Rights. In fact, the letter sent to the federal judge, at the direction of the Defendants, was hidden from Plaintiff, but subsequently provided to him by a person close to Defendant Walter..."
  • "...Plaintiff’s www.LeukemiaScandal.Com website was shut down by an improper complaint filed with the Yahoo Internet website hosting company by the Defendants, all while using the donated monies of LLS to: (a) advance such unconstitutional acts; and (b) to strong-arm such unconstitutional desires with the perceived strength and abusive power of two large Manhattan law firms, acting as “hired guns”."
  • "...Defendants threatened the iPower hosting service forcing it to immediately remove, without notice or warning, the Plaintiff’s www.LeukemiaScandal.Com website, thereby denying him access to the Internet. The threats to iPower were improper and backed with hundreds of millions of dollars of donated LLS monies and the chilling pressure of a large law firm promising years of litigation."

Thursday, January 27, 2011

Local Prosecutor, Battling Cancer and Corruption Probe, Resigns

Local Prosecutor, Battling Cancer and Corruption Probe, Resigns
The Connecticut Law Tribune by Christian Nolan - January 25, 2011

Longtime Waterbury State’s Attorney John Connelly will be remembered for trying more death penalty and murder cases than possibly any other prosecutor in the state’s history.
But whether that’s what he’ll be remembered for most is still up in the air. Connelly, according to sources, is a target of a federal investigation into alleged preferential treatment to clients of a close friend on the other side of the courtroom – Waterbury defense lawyer Martin Minnella, of Moynahan & Minnella. While that investigation is ongoing, Connelly, 61, has decided to retire. A statement issued by state Supreme Court Justice Richard N. Palmer, chair of the Criminal Justice Commission, said Connelly’s retirement “follows an inquiry undertaken by the Commission into allegations regarding Mr. Connelly’s conduct while in office.” Palmer further stated that, because the commission’s inquiry involved a personnel matter, and because the allegations have been the subject of an investigation by federal authorities, he was not free to discuss details. Palmer said the commission was prepared to take action against Connelly but that since Connelly decided to step down, “any such action has been rendered unnecessary.” Connelly’s lawyer, however, Hugh F. Keefe, of Lynch, Traub, Keefe & Errante in New Haven, said the prosecutor retired due to health reasons. Connelly referred comment for this article to Keefe. Keefe explained that just over a year ago, Connelly was diagnosed with two separate forms of cancer, colon and rectal. Connelly had surgery for the colon cancer and because of complications from the surgery, had to go in for a second surgery soon thereafter. Afterward, Keefe said Connelly did a year-long course of chemotherapy that just wrapped up two months ago. “When you are diagnosed with a serious disease, your perspective as to what’s really important changes,” said Keefe. “He wanted to concentrate on getting better. His focus is on getting well. His priority now is health, family and friends.” When asked about the investigation, Keefe said: “I was informed some time ago that John was not a target of it and have no reason to believe that’s not changed.” Thomas Carson, a spokesman for the U.S. Attorney’s office, said he could neither confirm nor deny that an investigation is taking place or that a grand jury has been empanelled.

'No Evidence’

According to various sources, federal investigators are looking into possible evidence that Connelly’s and Minnella’s friendship has led to special treatment for some of Minnella’s clients. The sources claim the two often traveled to Las Vegas, with Minnella paying the way. Minnella’s lawyer, Norman Pattis, of Bethany, did not return repeated calls for this story. But Pattis has previously told the Law Tribune that he had met with federal officials about such claims and that, in his view, there was “no evidence” to support them. However, one defense lawyer has gone to court to try to get his client’s case moved to another jurisdiction because he believes the client could get a raw deal in Waterbury. The reason: the lawyer says his client has been cooperating with federal authorities in the investigation of Connelly and Minnella. The lawyer, Michael Moscowitz, of Moscowitz & Giovanniello LLC in New Haven, filed motions to get his client’s case, Michael Seifert, transferred out of Waterbury. A hearing took place a few weeks ago, in which Connelly testified. Seifert is facing charges for allegedly robbing 13 banks in two states. “That’s my goal, to send [the case] to another jurisdiction where there won’t be any possibility of improprieties or vindictiveness,” said Moscowitz. Though Moscowitz said he couldn’t go into detail on why Seifert is participating in the investigation, he said he had a past client who was affected by the Connelly-Minnella relationship. Charles Fullenwiley, owner of a technology store in Waterbury, was convicted in 2009 of 10 sex crimes, including illegal sexual contact with a minor and risk of injury to a child for molesting a 17-year-old boy inside the shop. The victim claims that a retired police officer, Stephen Flanigan, handcuffed him, pushed him to the floor and took photos while Fullenwiley molested him. Fullenwiley, represented by Moscowitz, received “substantial jail time,” the defense lawyer said. But Flanigan, the former cop, represented by Minnella, had his charges dropped. “He had a great attorney, Martin Minnella,” said Moscowitz. Also, a parent of a defendant who was convicted in Waterbury told the Law Tribune that there is a widespread perception that Connelly played favorites with defense lawyers. “If you stayed on his good side, all went well for you and your clients. But if you questioned or challenged him, life was over and your sentence inflated for no reason.”

'Integrity And Courage’

Chief State’s Attorney Kevin Kane said he hopes Connelly is remembered for all the hard work and criminals he put behind bars through the years. “He’s done excellent work,” said Kane. “He’s handled many very difficult cases with a lot integrity and courage. I hope that’s what he’ll be remembered for.” Kane said Connelly also developed a lot of good assistant state’s attorneys through the years. Connelly, a Waterbury native, was hired as a prosecutor in Waterbury in 1980. He left in 1983 to become an assistant U.S. attorney, a position he held until 1984, when he was hired to become State’s Attorney of Waterbury. Connelly, who served four years in the U.S. Navy during the Vietnam war, has remained the state’s attorney there ever since. “His entire life has been public service,” said Keefe, his lawyer. “He is wildly popular in the Waterbury area. Pick a jury with him and you’ll find that out.” Keefe said Connelly has taken 22 murder cases to trial, a number Keefe thinks could be the most of any prosecutor in Connecticut. Further, Keefe said that Connelly had won six capital convictions (two were later reduced to life sentences on appeal). The four remaining members of death row whom Connelly prosecuted are Sedrick “Ricky” Cobb, Robert Breton, Todd Rizzo, and Richard Reynolds. Keefe said Connelly was often brought in to other jurisdictions to handle an especially difficult case. For example, Connelly was brought up to Hartford for the grand jury proceedings against retired Hartford Police Officer Bob Lawlor, who was charged and later acquitted for killing two unarmed black men in 2005. “Whenever the chief state’s attorney had a knotty, difficult case, they’d ask John Connelly to handle it,” said Keefe. “He never ducked a difficult assignment.” Connelly’s retirement is effective Feb. 1. Kane has appointed Deputy Chief State’s Attorney Leonard C. Boyle to exercise supervisory authority over the Waterbury office effective immediately. Boyle will serve in that supervisory capacity until the Criminal Justice Commission appoints a new State’s Attorney for Waterbury.

Wednesday, January 26, 2011

Proposal to Revamp New York Judicial-Conduct Agency Draws Fire

Proposal to Revamp Judicial-Conduct Agency Draws Fire
The New York Times by William Glaberson - January 25, 2011

New York judges have long seethed privately about the New York State Commission on Judicial Conduct, the state agency that disciplines and removes them for offenses like fixing cases, jailing people illegally and awarding excessive legal fees to friends. “Judges think it is a kangaroo court,” said Terence L. Kindlon, an Albany lawyer who has represented several judges at the commission. This week, judges may get an important ally, as the 77,000-member State Bar Association is to consider a sweeping proposal to restructure the commission that could make the prosecution of judges more difficult. If approved by the association, it would be the first major plan in decades to revamp New York’s judicial discipline system. One proposed change would require “clear and convincing evidence” to prove misconduct. Another would impose a new rule directing investigators from the commission to “accord judges the highest degree of respect” when they are the subject of an investigation. But the move to change the process is itself coming under fire. Critics say the proposal takes into account judges’ complaints but not the views of the public. This gives the appearance, some say, that behind closed doors, the state’s judges shaped the plan. “There’s at the very least an issue of perception when judges are consulted behind closed doors about a proposal to change disciplinary hearings that affect judges,” said Adam Skaggs, a lawyer at the Brennan Center for Justice at New York University, an organization that has worked prominently on judicial-selection issues but was not consulted. The State Bar Association, which is conducting its annual meeting in Manhattan this week, has no legal power, but its endorsement would be seen as the start of a campaign to change state law. The 11-member Commission on Judicial Conduct, which includes appointees of the governor, the Legislature and the courts, is a feared but little-understood agency that conducts investigations and decides whether to admonish, censure or remove judges. It is required by law to hold hearings in secret, in part to shield judges from embarrassment. The proposal on the agenda of the state bar’s governing House of Delegates is being pressed by the New York County Lawyers’ Association, a 9,000-member group based in Manhattan that includes judges in its membership. Officials from the association said they had studied the Commission on Judicial Conduct for more than three years.

But advocacy groups that work on New York court issues and the commission’s top legal official said in recent interviews that the county lawyers’ association had not considered the views of those who might be affected by judicial misconduct. “On balance,” said Robert H. Tembeckjian, the commission’s administrator, “these proposals are skewed to what would be in the interests of judges, as opposed to what would be in the public’s interest.” James B. Kobak Jr., the president of the lawyers’ association, said his group’s proposal was independent and came about because “the public ought to be sure there is a good, fair, thorough procedure in place.” He added that his group was not making its proposal because “it was advanced by judges.” Among the other suggested changes to New York law, the plan would permit lawyers representing judges to question investigators’ witnesses before a hearing and would require the commission to give judges notice when an investigation begins. The commission noted in a written argument that such early notice of an investigation could give judges the opportunity to destroy evidence, as it said a few judges had in the past. The proposal would also provide state money to pay for lawyers to defend judges facing disciplinary charges and would split the agency into two parts, separating the prosecutorial and decision-making functions. In a 2009 report, the county lawyers’ association noted that it had consulted judges in reaching its conclusions and suggested that the commission “lacks adequate neutrality,” adding there were questions about “the fundamental fairness of the process.” But Mr. Tembeckjian said the study of the commission by the county lawyers’ association was “much too closed.”

Victor A. Kovner, the chairman of the Committee for Modern Courts, a leading court-reform group in the state for decades, said his group had not been consulted. The committee has been arguing for many years that the commission’s proceedings should be opened to the public, but many judges favor keeping the proceedings secret. The lawyers’ association proposal now before the state bar includes no mention of that issue. Mr. Kovner said that “it was disappointing” that the lawyers’ association plan did not discuss ending the secrecy of judicial disciplinary proceedings. Asked if the lawyers’ association had consulted advocacy groups, Mr. Kobak, the association’s president, said, “I don’t think we necessarily knew this was an issue of concern” to those groups. Mr. Kobak added that his association had worked with the commission and said its procedures were already fairer as a result. He cited the publication of the commission’s rules for use by lawyers defending judges as one example. But David Demarest, a State Supreme Court justice in St. Lawrence County, said questions remained about the commission’s fairness. “Any time you have an agency that acts as both prosecutor and adjudicator, it’s problematic,” he said.

Tuesday, January 25, 2011

Disbarred NY Lawyer Ordered to Pay $3 Million

Disbarred NY Lawyer Ordered to Pay $3 Million
The New York Law Journal by Joel Stashenko - January 25, 2011

A disbarred attorney admitted in Buffalo Supreme Court yesterday to swindling more than $400,000 from 20 clients, bringing to $3.1 million the amount he has been ordered to pay in restitution to 43 clients and two loan companies. Erie County District Attorney Frank A. Sedita III said Kenneth P. Bernas' additional victims stepped forward after the ex-attorney admitted in September to bilking 23 former clients. He has now pleaded guilty to 53 felony counts and could face a maximum of 50 years in prison when sentenced by Supreme Court Justice Penny M. Wolfgang on Feb. 23. A former real estate and personal injury attorney, Mr. Bernas, 53, was disbarred last year. Authorities said he ran a series of scams against his former clients. In some cases, they say, he took out loans in clients' names and kept the money while in others, he spent money awarded to personal injury clients Mr. Sedita said Mr. Bernas used the money to finance construction of an opulent home in a Buffalo suburb. The district attorney said he is working with the Erie County Bar Association and the Lawyers Fund for Client Protection to try to get some compensation for former clients bilked by Mr. Bernas.

Truly a Gem of An Officer of the Court

Lawyer Disbarred for Taping Jailhouse Video of 16-Year Old's Sex With Clients
The National Law Journal by Leigh Jones - January 25, 2011

The Supreme Court of Louisiana has permanently disbarred an attorney for taking a minor into a jail and videotaping her having oral sex with clients being held there. The court revoked the law license of Noland James Hammond on Jan. 19 after it determined that he brought a 16-year-old girl with him to the Bunkie Detention Center in Avoyelles Parish, La., and taped her having sex with two inmate-clients. Hammond was charged with 24 counts of misconduct, including fondling an inmate, passing contraband to inmates and making sexual advances to inmates. "Respondent intentionally violated duties owed to clients, the public, the legal system, and the profession, causing significant harm," the court wrote. "Under the circumstances, disbarment is clearly appropriate." According to a hearing committee report, Hammond visited two inmates in October 2003 at the detention center and told them that he believed they had been wrongfully convicted. One inmate had been convicted of aggravated battery and another of rape. Both crimes involved sexual contact with a female victim. Hammond told them that he thought he could get their convictions reversed but that he needed to obtain semen samples to do so, the report found. The next day, Hammond returned to the jail with a 16-year-old girl whom he identified as his assistant. Hammond got permission under the pretense of requiring an attorney-client contact visit to meet in a private office. Once the four were alone, the girl performed oral sex on the inmates while Hammond videotaped the encounter, the hearing committee found. The committee determined that Hammond violated attorney ethics rules related to the respect of a third-person's rights, conflicts of interest, competency and more. The Louisiana Supreme Court found that most of the allegations made by the state's Office of Disciplinary Counsel were true. The court's decision on Jan. 19 followed a temporary disbarment issued against Hammond in 2005. Hammond's offenses were "so egregious," the court wrote, that permanent disbarment was required, without the chance for Hammond to reapply for admission. The age of consent in Louisiana is 17. Hammond was not prosecuted for any crimes, said Avoyelles Parish District Attorney Charles Riddle. The credibility of the witnesses made it difficult to pursue the case, he said. "When the Supreme Court [temporarily] disbarred him, we made the decision not to prosecute the charges," Riddle said. The court ordered Hammond to pay restitution to his former clients, repay the Louisiana State Bar Association's client assistance fund and cover all costs and expenses of the proceeding. Hammond could not be reached for comment.

Conflicts and Under-Reporting Alleged at U.S. Supreme Court

Supreme Court won't be fully represented at State of the Union
The Washington Post by Robert Barnes - January 25, 2011

The Supreme Court finds itself again in the political limelight, a place most justices try to avoid. A combination of events, concluding with the question of which justices will attend President Obama's State of the Union address Tuesday night, has brought complaints, partisan charges and renewed scrutiny to the court. Justice Antonin Scalia's decision to give constitutional pointers Monday to the House Tea Party Caucus headed by Rep. Michele Bachmann (R-Minn.) prompted a debate among judicial ethicists about whether justices should associate with political groups that have clear interests on issues that will probably come before the court. Before that, the first anniversary of the court's decision to give corporations and unions a greater role in campaign spending brought renewed criticism from liberal groups and complaints about two justices from a government watchdog group. Common Cause charged Scalia and Justice Clarence Thomas with conflicts of interest, and on Monday Thomas amended his financial disclosure reports for the past 13 years to reflect his wife's employers, an omission the group had criticized. Finally, court-watchers will look for partisan motivations Tuesday night when at least some of the black-robed justices file into the House chamber for the State of the Union. The question of who will show and who will stay home has taken on added weight after last year's speech, when some justices took offense at the president's use of the address to criticize the court's decision in Citizens United v. Federal Election Commission. The only known no-show at this point is Justice Samuel A. Alito Jr., who is taking advantage of a perfectly timed speaking engagement in Hawaii to avoid the event at which he became a reluctant player last January. Cameras caught him muttering "not true" to Obama's charges.

Since then, Chief Justice John G. Roberts Jr., Scalia and Thomas have objected to what Roberts called the "political pep rally" aspect of the speech, as justices are expected to sit silently through the cheering and jeering around them. Their reluctance could lead to a scenario in which only justices appointed by Democratic presidents attend Obama's speech, underscoring the court's new reality: Its conservative members were appointed by Republicans, its liberal members by Democrats. Steven Lubet, an expert on judicial ethics at Northwestern University School of Law, said the court seems to alternate between periods of "extreme reticence" and high visibility. "We are at a high point on the visibility cycle," Lubet said in an interview. "But I don't know whether one's better than the other." Scalia's appearance on Capitol Hill split judicial ethicists, some of whom said it was inappropriate to address members of Congress with a partisan persuasion, and others who said justices do no harm by speaking publicly. Members who attended the meeting said Scalia answered questions, and a handful of Democrats attended as well. They said he told them that Congress sometimes doesn't exercise its full power. Rep. Janice D. Schakowsky (D-Ill.), one of the liberal lawmakers in attendance, described the discussion as "fascinating."

Last week, Common Cause noted the anniversary of the Citizens United decision by asking the Justice Department to investigate whether Thomas and Scalia should not have heard the case. It charged the two had attended private strategy sessions with conservative fundraisers organized by Charles and David Koch, billionaire brothers active in conservative causes. Scalia said through a court spokesman that he spoke at a private dinner sponsored by Charles Koch and the Federalist Society in 2007 that was separate from the conference. The spokeswoman said Thomas spoke at a similar event in 2008 and "stopped by" the conference. Both speeches came before the court had accepted the Citizens United case, and their expenses were paid by the Federalist Society. But Common Cause also charged that Thomas had not disclosed his wife Virginia Lamp Thomas's employment, including what the group said was a total income of nearly $700,000 received from the conservative Heritage Foundation from 2003 to 2007. Thomas on Monday amended the forms to detail his wife's past employers dating back to 1989: the Labor Department, former representative Richard K. Armey (R-Tex.), Heritage and Hillsdale College. Thomas said the information was "inadvertently omitted due to a misunderstanding of the filing instructions." Common Cause President Bob Edgar was dissatisfied with Thomas's brief explanation. "Justice Thomas sits on the highest court of the land, is called upon daily to understand and interpret the most complicated legal issues of our day and makes decisions that affect millions," Edgar said in a statement. "It is hard to see how he could have misunderstood the simple directions of a federal disclosure form." It's against this backdrop that the issue of State of the Union attendance arises. The whole court almost never attends, but Roberts has attended every speech since he joined the court in 2005. His absence would be conspicuous. He expressed his displeasure with last year's speech at an Alabama law school appearance, mentioning the televised scene of Democratic lawmakers jumping to their feet to cheer Obama's criticism of the Citizens United decision. "The image of having the members of one branch of government standing up, literally surrounding the Supreme Court, cheering and hollering while the court, according to the requirements of protocol, has to sit there expressionless, I think is very troubling," Roberts said. "And it does cause you to think whether or not it makes sense for us to be there." barnesb@washpost.com Staff writer Felicia Sonmez contributed to this report.

Mayor Slams NYC Judge

Bloomberg Slams NYC Judge in Radio Interview
New York Law Journal by Noeleen G. Walder - January 24, 2011

Mayor Michael R. Bloomberg used his weekly radio broadcast Friday morning to sound off against Manhattan Supreme Court Justice Emily Jane Goodman's decision to block the city from laying off several deputy sheriffs, which the mayor complained could cost taxpayers more than $1 million annually. Appearing on "The John Gambling Show With Mayor Mike" on WOR 710 AM, Mr. Bloomberg criticized a ruling issued Thursday night by Justice Goodman, in which she granted a temporary restraining order barring the city from "laying off, displacing, discharging, or demoting any New York City Sheriffs" or taking any retaliatory action against members of the New York City Deputy Sheriffs' Association. Davis v. City of New York, 100722/11. The judge scheduled a preliminary injunction hearing for Feb. 10. The mayor's remarks highlighted the city's growing dissatisfaction with rulings by Justice Goodman. The mayor said on the show that Justice Goodman had no legal basis to second guess the decision by city Finance Commissioner David N. Frankel to lay off nine deputy sheriffs and demote three. "In the meantime, we're going to waste…over a million dollars a year just because this judge decides to step in, [and] says, 'Oh I feel sorry for those people.' What about the taxpayers?" the mayor said. Mr. Bloomberg also faulted Justice Goodman for failing to make the sheriffs' association post a bond that would enable the city to recoup its lost funds should it ultimately prevail in the case. In a statement issued Thursday night after the ruling, Mr. Frankel said the judge had "clearly overstepped the court's authority." "[S]ubstituting her judgment for what is clearly an executive prerogative does enormous damage to our ability to manage the Department in an efficient manner that preserves the Sheriff's mission at an appropriate cost to taxpayers," Mr. Frankel added. The mayor told his radio audience Friday that "the trouble is we've got a trial judge like this who makes decisions that the appellate courts don't step in to reverse right away." He called on Chief Judge Jonathan Lippman, whom he called a "pretty good guy," to "step in and fix this system so this doesn't happen or we're going to start laying off people." In an interview, Justice Goodman said that "no litigant has a right to come to judge shop and I think attacks on judges are unfortunate and may have the effect on some people of interfering with judicial independence." On Friday, Justice Helen Freedman of the Appellate Division, First Department, denied the city's motion to vacate Justice Goodman's ruling, or in the alternative, require that the petitioners post a bond. Justice Freedman also denied the city's request that the case be reassigned. "Expedited decision upon submission is urged," she wrote on Friday.

History of Complaints

This in not the first time the city has been upset with Justice Goodman. In papers filed with the First Department, it accused the judge of dragging her feet in two other cases involving the city, including one litigation in which it took 14 months to get a ruling that New York City's 2008 rent regulations were improper, a move Mr. Bloomberg said forced 300,000 landlords to recalculate rents. In another case concerning a challenge to a development project in Brooklyn, the city said Justice Goodman issued a temporary restraining order, which has now been outstanding for 13 months, and has refused to enable the city to obtain a bond (NYLJ, May 24, 2010). In the interview, Justice Goodman said that case, Broadway Triangle Community Coalition v. Bloomberg, 112799/09, is stayed because there is an ongoing federal investigation. She said in complicated matters like the rent case, "We probably got papers from the floor to the ceiling." In a subsequent e-mail, Justice Goodman said that during the rent case her law assistant "had major spinal surgery and could not work/could not be seated in a chair for a considerable period of time; I had asked the administration for more help and that was denied." She added, "On a personal basis, my mother was dying." Ronald E. Kliegerman of Kliegerman & Joseph, who represented the sheriffs' association, said in an interview that it was inappropriate for the city to comment on cases it had pending before Justice Goodman.

According to an Article 78 petition filed by the association, the decision to lay off nine sheriffs and demote three others "was made in large part by a new commissioner without any background in law enforcement or public safety." Mr. Frankel took office in September 2009.
"The City is attempting to trade public safety for dollars, notwithstanding its obligation to protect and act in the best interests of its citizens," the sheriffs' association argued in its petition. The city in its appellate papers said that when the parties appeared before Justice Goodman on Thursday, Law Department attorneys told her the layoff proposal was meant to affect cost savings. The judge commented that deputy sheriffs frequently appear in her courtroom, and "suggested the NYPD would need to allocate resources to perform the functions now being performed by" the sheriffs, the city said in court papers. After granting the sheriffs' associations' request for a temporary restraining order, the judge instructed counsel to arrange a conference call to discuss the issue of a bond. "When counsel for the parties called chambers this morning at approximately 9:15 a.m., no one answered the phone," the city claimed. In the interview, Justice Goodman said that the parties came in the midst of her motion day and she could not drop everything to consider the bond issue. "We have about 700 cases. For one case to jump the other cases is not equal justice for everybody," the judge explained, adding that she wanted to have time to read the city's papers before considering whether to require a bond. The attorneys might have been calling chambers on Friday morning, she said, but she explained that she went directly to her courtroom for a trial and her secretary was out sick, as well as her law clerk. "What can I say if no one answered the phone at this moment?" Judge Goodman said. Her law clerk eventually arrived and arranged for a phone conference with the parties for later in the day, the judge said.

Late Friday, after Justice Freedman had ruled against the city, Justice Goodman rejected the request for a bond, saying that CPLR 6313, which governs TROs, did not require one. In any case, she said that the city had not substantiated its damages claim. In an interview on Friday before that ruling, Corporation Counsel Michael A. Cardozo acknowledged that "judges have a very hard job." There's no question that "we shouldn't have to answer in court," he said. However, given that Justice Goodman took a "very, very long time to enter a decision to the city's detriment" in the other two cases, he said one of his "grave concerns is that this TRO might last for a very long time," which would cost the city $4,045 a day. The judge's decision to put off until Feb. 10 arguments on the preliminary injunction "compounds the problem," he said. Justice Goodman reached the mandatory retirement age of 70 last year, but court administrators certificated her to remain on the bench until Dec. 31, 2012 (NYLJ, Jan. 7). Mr. Cardozo said he told the Office of Court Administration that he opposed her recertification. Mr. Cardozo said he also has discussed with court officials "the more general problem of… injunctions being entered in this fashion." There are judges who have entered temporary restraining orders without a bond that "also last a long time," he said. This would not happen in the federal system, where a movant must post a bond before a temporary restraining order is issued and the order lasts only 14 days unless the court finds good cause to extend the period, Mr. Cardozo said. The city has proposed legislation that would bring the CPLR provisions on temporary restraining orders and injunctions in line with the federal rules, he said. David Bookstaver, an OCA spokesman, said that as a courtesy, Mr. Cardozo had forwarded the proposed legislation "to us for review." But he added that this is an issue for the Legislature, not the courts. Responding to Mr. Bloomberg's comment that Judge Lippman should "step in and fix the system," Mr. Bookstaver said, "Our system is founded on an independent judiciary. It's clear that no judge can interfere with another judge's ongoing case." Senior Counsels William S. Frankel and Fay Ng handled the case for the Law Department.

Monday, January 24, 2011

State Bar Annual Meeting Kicks Off Today

State Bar Annual Meeting Kicks Off Today
The New York Law Journal by Joel Stashenko - January 24, 2011

More than 5,000 attorneys are expected to participate in the New York State Bar Association's six-day annual meeting that begins today at the New York Hilton with some saying that attorneys' financial prospects may be improving. See the 134th Annual Meeting brochure with calendar, registration information, and the Law Journal's NYSBA Annual Meeting special section. Stephen P. Younger of Patterson Belknap Webb & Tyler, the bar group's president, said he expects to find attendees still wary about the economy, but somewhat more upbeat than attendees at the past two meetings. "My sense is that there is starting to be a renewed sense of optimism in the legal world," Mr. Younger said in an interview, citing recent surveys indicating that law firm hiring and revenues will go up this year. "That doesn't mean that with a snap of the fingers that it will be back to normal," he added. However, Lauren Wachtler, chairwoman of the state bar's Lawyers in Transition Committee, said the profession is still in the "doldrums" financially, with a few positive signs but many negative ones. "There is a glut of lawyers coming out of law school with nowhere to go," Ms. Wachtler, of Mitchell Silberberg & Krupp, said. She will participate in a how-to-interview session on Thursday for new law school graduates sponsored by the Law Student Council.

In addition to presentations on the challenges imposed on the legal industry by the poor state of the economy, a variety of programs are set for the state bar's 134th annual meeting, including one on "sexting"; another featuring the judge in a landmark case involving compensation for a companion animal; and one on the legal implications of bedbug infestations. More than 40 educational programs will offer CLE credits for participants. Also on tap is a much-anticipated debate set for Friday by the House of Delegates on whether to endorse potentially controversial proposals to revamp the way the state Commission on Judicial Conduct investigates and punishes judges for misconduct (NYLJ, Jan. 21). Mr. Younger has argued that law firms should use the economic woes to consider alternatives to traditional hourly billing structures and for young lawyers and their firms to find ways to develop a better work-life balance. "We need to change the way we do business as lawyers," Mr. Younger said. Many of those points will undoubtedly be highlighted on Wednesday during the meeting's Presidential Summit, for which Mr. Younger has set the agenda. The first of two panels that day is on "Shaping the Future of Our Profession: Strategies That Will Guide Lawyers and Clients Through an Era of Change." The panelists are Simon Chester, partner at Heenan Blaikie; Deborah Epstein Henry, president of Flex-Time Lawyers LLC; Richard A. Matasar, dean and president of New York Law School; and Amy W. Schulman, general counsel of Pfizer. The other summit program will explore "Government Ethics: Reforming the System, Rebuilding Public Trust in Our Institutions." It will be addressed by the state's new attorney general, Eric Schneiderman. Serving on a panel will be Evan A. Davis of Cleary Gottlieb Steen & Hamilton, former counsel to Governor Mario M. Cuomo; Mark Davies, executive director of the New York City Conflicts of Interest Board; John R. Dunne of Whiteman Osterman & Hanna; and Boyd Milo Johnson III, deputy U.S. attorney for the Southern District. The Committee on Media's discussion on "sexting" and whether it is an appropriate source of attention for prosecutorial discretion is set for tomorrow afternoon. On Wednesday, Margaret Taylor, a retired New York City Civil Court judge, will describe the reasoning behind her 1980 ruling in Brousseau v. Rosenthal, 443 NYS2d 285, in which she placed a value on a companion animal in a wrongful death case. Her talk is hosted by the Committee on Animals and the Law. And on Thursday, Lewis Montana of Levine & Montana in Peekskill will discuss "Bedbugs: Everything You Should Know, but Are Afraid to Ask," sponsored by the Real Property Law Section. Joel Stashenko can be contacted at jstashenko@alm.com.

Thursday, January 20, 2011

Governor's Ex-Attorney General Staffer to Lead Ethics Commission

Gov. Cuomo selects ex-staffer Mitra Hormozi to lead state's ethics commission
The New York Daily News by Glenn Blain - January 19, 2011

ALBANY, NY - Gov. Cuomo on Tuesday tapped a key member of his former staff to lead the state's ethics commission. Mitra Hormozi, a former assistant U.S. attorney who headed the state attorney general's investigation of former state Sen. Pedro Espada, will become chairwoman of the state's Public Integrity Commission, Cuomo announced. The selection marks the third time Cuomo has filled a top watchdog post with someone from his AG staff. He also named former staffers to serve as leaders of the state police and the inspector general's office. "While this is a person who has a terrific background, it does raise questions about the independence of the agency," Susan Lerner of Common Cause NY said of Hormozi.

New York 'Sex-tortion' Lawyer Sued in Federal Court

'Sextort' lawyer is sued
The New York Post by Bruce Golding - January 20, 2011

A Financial District lawyer was slapped yesterday with a civil extortion suit alleging he threatened to expose an insurance exec's extramarital affairs if he wasn't paid more than $3 million and given at least 25 cases to handle. The Manhattan federal court filing says lawyer Michael Devereaux gave the exec -- a senior vice president with Liberty Mutual -- a draft version of legal papers revealing his "alleged immorality" after the company stopped assigning Devereaux work due to "excessive and unauthorized billing." A copy of those papers obtained by The Post says the exec allegedly used Devereaux's Battery Park City apartment for afternoon delights, and also borrowed money from Devereaux to hire hookers. Devereaux -- who denied any overbilling and said he's owed more than $400,000 by Liberty Mutual -- called the extortion claims against him "completely false." A Liberty Mutual spokesman declined to comment.

Wednesday, January 19, 2011

Feds Create New Oversight Unit

New Disciplinary Unit for Justice Department
UPI - U.S. News - January 19, 2011

WASHINGTON, D.C. -- Attorney General Eric Holder is creating a special unit to handle disciplinary actions for career attorneys at the U.S. Justice Department, officials say. The Professional Misconduct Review Unit will be responsible for all disciplinary and state bar referral actions that arise from investigations by the Office of Professional Responsibility, the Justice Department said in a release. "The current procedures for resolving these disciplinary matters consume too much time, and risk inconsistent resolutions," Holder said. "This new unit will help change that by providing consistent, fair and timely resolution of these cases." Holder appointed his chief of staff and Counselor Kevin Ohlson to head the unit. The unit is designed to make sure federal prosecutors face swifter and more consistent punishment if investigators find they committed misconduct, USA Today reported. The change follows a USA Today investigation that identified 201 criminal cases in which federal courts found Justice Department prosecutors broke laws or violated ethics rules.

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DOJ Creates Unit to Probe Intentional and Reckless Prosecutorial Screwups

The Blog of Legal Times by Mike Scarcella - January 18, 2011

WASHINGTON, D.C. - Amid the national dialogue on prosecutorial malfeasance, the U.S. Justice Department yesterday announced the creation of a team of lawyers that will review cases of intentional and reckless attorney misconduct. The Professional Misconduct Review Unit will examine misconduct findings made by the department's Office of Professional Responsibility. Kevin Ohlson, who stepped down as Attorney General Eric Holder Jr.’s chief of staff recently, will lead the unit. Ohlson will report to the office of the deputy attorney general. Holder said in a statement this afternoon that the creation of the unit flows from a review of the department’s disciplinary procedures. DOJ set up the unit to create a more “efficient and uniform” system for the fair and prompt resolution of misconduct allegations. “The current procedures for resolving these disciplinary matters consume too much time, and risk inconsistent resolutions, but this new Unit will help change that by providing consistent, fair, and timely resolution of these cases,” the attorney general said. Holder said he wants the new unit to “further the department’s mission of meeting its ethical obligations in every case.” The new unit, he said, will be responsible for all disciplinary and state bar referral actions tied to OPR findings of professional misconduct. Ohlson’s team is reviewing OPR decisions to determine whether the evidence and the law support the conclusion in any given case of intentional or reckless misconduct. The announcement comes amid personnel changes at OPR, the department unit that investigates allegations of professional misconduct involving DOJ lawyers. In December, Holder announced the appointment of career prosecutor Robin Ashton to serve as counsel for OPR, replacing Mary Patrice Brown. Brown moved to a front-office post in the Criminal Division under Assistant Attorney General Lanny Breuer. Ohlson served as Holder’s chief of staff and counselor since February 2009. Previously, he served as director of the Executive Office for Immigration Review.

Monday, January 17, 2011

Disbarred Attorney Requested Readmission To Practice Law

Disbarred Attorney Requested Readmission To Practice Law
The Connecticut Law Tribune - January 17, 2011

CASE: Statewide Grievance Committee v. Egbarin
COURT: Hartford J.D., at Hartford
COURT OPINION BY: Keller, J., Graham, J., and Scholl, J.
“An applicant for readmission to the bar must be possessed of such standards of honor and honesty and have such an appreciation of the distinctions between right and wrong in the conduct of men toward each other as will make him a fit and safe person to engage in the practice of law,” pursuant to Statewide Grievance Committee v. Kalkstein, a March 2009 decision of the Hartford Superior Court. In June 1999, a court found that the defendant attorney, Nitor Egbarin, “fraudulently misrepresented relevant facts to his mortgage lender,” in violation of Rule 8.4(3) of the Rules of Professional Conduct, and suspended the attorney from the practice of law for five years. In 2001, the Connecticut Appellate Court affirmed. Another judge disbarred Egbarin from the practice of law in November 2001, as a result of allegations that he withheld a client’s settlement funds for one year and failed to honor letters of protection to health care providers. After he was disbarred, Egbarin apparently worked for financial services companies and managed soccer players. Egbarin requested readmission to the bar of the State of Connecticut in January 2009. A committee on recommendations found that Egbarin failed to establish he should be readmitted, because he did not engage in counseling, express that much regret, or pay restitution to complainants. The committee also found that Egbarin took only one continuing legal education course in ethics and did not take additional legal education courses. (Egbarin subsequently submitted evidence that he took a civil practice and procedure course in September 2010.) Egbarin failed to support his claim he worked as a paralegal and to submit references from his most recent employers. He failed to establish significant involvement in the law after he was disbarred in 2001. The committee’s recommendation was not arbitrary, unreasonable or an abuse of discretion, and the Superior Court affirmed.

Thursday, January 13, 2011

Informal Poll Shows Frustration Over New York Judicial Pay

Informal Poll Shows Frustration Over Pay Continues for Judiciary
The New York Law Journal by Joel Stashenko - January 13, 2011

ALBANY, NY -The formation of a commission to recommend judicial salaries, an initiative lauded by state court administrators, has not quelled the frustration of state judges who continue to demand an immediate raise and retroactive salary hikes, according to an informal online survey organized by four judges. Ninety-six percent of the judges who responded to the survey—527 of 557—answered "no" when asked, "Are you satisfied with the outcome of the salary dispute?" Ninety-one percent said the judiciary should continue to advocate for an immediate raise, and 94 percent said judges should keep pushing for a retroactive increase to make up some of the ground lost since the judiciary last got a raise in 1999.

Read the survey results for all N.Y. judges, judges in New York City and judges in the rest of the state.

The salary commission's first recommendations would not be implemented until April 1, 2012.

Chief Judge Jonathan Lippman predicted last month that the new commission would recommend a significant raise, a finding that could be overturned only by a legislative vote. After years of fruitless lobbying by the judiciary, he called its enactment "a long overdue salute" to the judges(NYLJ, Dec. 13, 2010).

But many judges apparently have not been appeased.

Of the survey's respondents, 79 percent said "no" when asked if the judicial pay commission was "the best outcome that realistically could have been achieved."

And 91 percent said that they would back a new umbrella organization, in addition to 10 existing judges associations, "to advocate on behalf of its membership with respect to issues such as salaries and other terms and conditions of employment." Family Court Judge W. Dennis Duggan in Albany County, one of the developers of the survey, compared the projected organization to a trade union in an interview with The New York Times, but the survey itself indicated that there were limits to judicial activism among the respondents. More than half, or 53 percent, said they would not be willing to take part in a public demonstration "such as a rally or march" in support of higher pay.

Judge Lippman was not available to comment on the survey, but Chief Administrative Judge Ann Pfau said the independent pay commission was a good outcome that will make judges less dependent on the governor and the Legislature for future raises. The Court of Appeals ruled last year that the other branches had unconstitutionally tied raises to unrelated issues. "But for some individual judges it doesn't resolve all their problems and we recognize that," she acknowledged. "Look, if somebody said to me, 'Is this a perfect outcome?' My response would be that it is not. For the institution, a commission is a very, very positive thing. But if I were an individual judge and I was going to retire next year, I would be pretty frustrated." Judge Pfau added that the establishment of a new judges' group would have no effect on the way court administrators deal with the judges. "I am happy to deal with 20 associations or one association," she said. However, Judge Pfau added that she does not think it is "realistic in this economic climate to believe that an association can achieve more in the way of salary increases now" than what was achieved by Judge Lippman, herself and others who lobbied on behalf of establishing the pay commission. As far as unionizing judges, Judge Pfau said her reading of the state’s Taylor Law indicates that sitting judges do not have the power to form collective bargaining units. But she said the question is one for the Public Employment Relations Board. Jeffrey Lebowitz, a Court of Claims judge who is an acting Supreme Court justice in Queens, one of the organizers of the survey, said he believes that getting so many responses to the poll was convincing evidence that frustration over pay continues to linger.

"Judges are not necessarily the most activist-type people," said Justice Lebowitz, who is also president of the 400-member New York State Association of Designated Justices. "By in large, they tend not to get involved in things. But people are obviously very unhappy with the situation. I don't think they are so unhappy with the commission and the commission's implications for the future. But they are obviously unhappy about going without raises for so long." In addition to Judge Duggan, others involved in the survey effort were Brooklyn Family Court Judge Daniel Turbow and Queens Family Court Judge Barbara Salinitro. Judge Turbow said he is trying to organize a meeting in early February of representatives of the existing 10 judicial groups, which represent judges in different courts, to gauge the appetite for "further collective action." Judge Lebowitz argued that there is enough common ground among all judges to support a more unified approach to the pay issue. "I think there is a sense that by not speaking with a clear voice, we are kind of getting pushed around," he said.

The 11-question poll was posted online at Survey Monkey on Dec. 17; judges were given until Jan. 3 to respond. Respondents' confidentiality was guaranteed. At the same time, judges were prevented from answering more than once Of the state's 1,267 judges, 43.9 percent responded. Lee Miringoff, a pollster at Marist College in Poughkeepsie, who was not involved in the effort, called that a "decent response." "I think the tendency would be that you get responses from people who are fired up," Judge Duggan said. "Obviously, the fire is hottest under the proponents for raises and stronger action. A number who occupy administrative positions with OCA might feel loyalty in that regard and not participate." Joel Stashenko can be contacted at jstashenko@alm.com.

NY Lawyers Fear New Tax Copied From Holland

Dutch government will tax prostitutes in red-light district; many skeptical of enforcement
The Associated Press - January 13, 2011

The Dutch government has announced that it will tax the wages of the country's famed prostitutes. Individual prostitutes should be charging a 19% sales tax, but often don't. Income tax, sales tax, property tax . . . sex tax? Some governments are so broke they'll try to collect on everything they can. Indeed, workers in the world's oldest profession in Holland are about to get a lesson in the harsh reality of austerity. The Dutch government has warned prostitutes who advertise their wares in the famed windows of Amsterdam's red-light district to expect a business-only visit from the tax man. Even though the country legalized the practice a decade ago, authorities are only now getting around to taxing individual sex workers. "We began at the larger places, the brothels, so now we're moving on to the window landlords and the ladies," a spokeswoman for the country's Tax Service said. Under Dutch law, prostitutes should be charging 19% sales tax on each transaction. Customers typically pay $65 for a 15-minute session. Samantha, a sex worker in the city, isn't so worried. "How can they tell how many people come inside each day or how much money changes hands once the curtain is drawn?" she asked. "Not many customers ask for a receipt."

Wednesday, January 12, 2011

Federal Judge Stands Firm in Lying Cop's Torture Case

Federal judge won't step down from Burge case
WLS-TV Chicago - January 12, 2011

January 12, 2011 (CHICAGO) -- A federal judge said Wednesday that she won't step aside before sentencing a former Chicago police lieutenant convicted of lying about the torture of suspects, rejecting arguments that she appeared to have a conflict of interest. Attorneys for Jon Burge said they were concerned that the lead prosecutor in the case, Assistant U.S. Attorney David Weisman, also was a prosecutor in a 2004 case in which a white supremacist was convicted of trying to hire someone to kill U.S. District Judge Joan Lefkow. They said they did not know about the connection before trial and that it was discovered by a friend of Burge's after his conviction. But Lefkow said prosecutors in the case involving the supremacist, Matthew Hale, represented the government, not her, and that she had no say in his prosecution. She testified briefly as a witness at his trial, but was not questioned by Weisman. She also said that Burge's attorneys filed their motion too late. "Obviously this is very distressing to think the recusal issue came up a few weeks before sentencing," Lefko said. Burge, convicted in June of perjury and obstruction of justice, is scheduled to be sentenced Jan. 20. He faces a maximum of 45 years in prison. For decades, dozens of suspects -- almost all of them black men -- claimed Burge and his officers had tortured them into confessing to crimes ranging from armed robbery to murder by suffocating, shocking and beating confessions out of them. Burge was fired from the police department in 1993 over the alleged mistreatment of a suspect but he was not was criminally charged before the statute of limitations ran out. He was charged in 2008 with lying about the alleged torture in a lawsuit filed by a former death row inmate. Lefkow said she respected Burge's right to bring a recusal motion, but said it could have been brought up before the trial because nobody was hiding the information. Hale was convicted of trying to hire his security chief, who was working as an FBI informant, to kill Lefkow. Prosecutors said he was angry that the judge had ordered his group to stop using the name World Church of the Creator because the words were trademarked by an Oregon-based religious group. The judge never was attacked. But on Feb. 28, 2005, Lefkow's husband and mother were found shot to death in the basement of the Lefkows' home. An unemployed electrician who killed himself several days later during a traffic stop in a Milwaukee suburb confessed to the crime in a suicide note.

Former Assistant County Attorney Arrested for Eavesdropping

Former asst. county attorney arrested
The St. Augustine Record - January 11, 2011

Former Assistant County Attorney Paras Desai was arrested by St. Johns County Sheriff's Office detectives Monday afternoon and charged with eavesdropping and eight counts of illegal interception of communication, all third-degree felonies. Desai, 35, of St. Augustine, posted $8,000 bond about 4 p.m. today and was released. A warrant was issued for his arrest last week, but Desai turned himself in to Sheriff's Detective George H. Harrigan Jr. on Monday, according to booking and offense reports. The narrative in the warrant said, "The defendant intentionally intercepted oral communications without the consent of the victim. (He) secretly recorded a phone conversation with (county Environmental Division Director) Jan Brewer. The victim had no knowledge of the recording and did not give her consent." All the intercepted communications -- essentially, recorded phone conversations -- that Desai is charged with allegedly occurred within the County Administration Building at 500 Sebastian View Way, the warrant said. Other victims listed in the offense report include Assistant County Attorney James Whitehouse, Assistant Personnel Director Lisa Roe, Assistant County Attorney Diane Lehmann, Assistant County Attorney Regina Ross and Risk Management Director Sarah Taylor. Desai was employed by the county from 2004 to 2008.

Tuesday, January 11, 2011

NY Attorney Pleads Guilty in Manhattan Federal Court in $23 Million Scam

Department of Justice Press Release
For Immediate Release
January 11, 2011 United States Attorney's Office
Southern District of New York - Contact: (212) 637-2600

Queens Attorney Pleads Guilty in Manhattan Federal Court to Participating in $23 Million Mortgage Fraud Scheme

PREET BHARARA, the United States Attorney for the Southern District of New York, announced that CHEDDI GOBERDHAN, a real estate attorney, pled guilty yesterday before U.S. District Judge SHIRA A. SCHEINDLIN in Manhattan federal court to a seven-count Indictment charging him with conspiracy to commit bank and wire fraud, and six counts of bank fraud, in connection with a scheme that defrauded banks out of more than $23 million in home mortgage loans. GOBERDHAN made hundreds of thousands of dollars in illicit profits from the scheme, in which he worked closely with corrupt loan officers of GuyAmerican Funding, a mortgage brokerage firm in Queens, New York. GOBERDAN is the ninth defendant convicted of participating in this mortgage fraud scheme. Manhattan U.S. Attorney PREET BHARARA said: "Cheddi Goberdhan carried out an elaborate subterfuge designed to steal millions of dollars in home mortgage loans. Instead of serving as the gatekeeper whom the banks relied upon to prevent fraud, he abused his position of trust to line his own pockets. We will continue working with our law enforcement partners to prosecute those who commit mortgage fraud and jeopardize the stability of our financial institutions."

According to the Superseding Indictment and statements made during the proceedings in this case:

GOBERDHAN participated in a massive mortgage fraud scheme operated through a branch office of GuyAmerican Funding located on Liberty Avenue, in Jamaica, New York. GOBERDHAN's coconspirators in the scheme included, among others, the president of GuyAmerican Funding (DAVID RAMNAUTH), GuyAmerican loan officers (PEGGY PERSAUD, ORETTE KILLIKELLY, GEORGE ESSO), individuals who recruited homeowners and "straw buyers" (ELTON LORD, RAFICK BAKSH, MAHAMOOD HUSSAIN), and another real estate lawyer (RAVI PERSAUD). As part of the scheme, the coconspirators arranged home sales between "straw buyers"—persons who posed as home buyers, but who had no intention of living in the mortgaged properties—and homeowners in financial distress who were willing to sell their homes. The GuyAmerican loan officers obtained mortgage loans for the sham deals by submitting fraudulent applications to banks and lenders, and using fraudulent representations about the supposed buyers' net worth, employment, income, and plans to live in the properties. Frequently, the co-conspirators used the same straw buyer to obtain multiple mortgage loans. The co-conspirators kept some or most of mortgage proceeds for themselves, while the "straw buyers" ultimately defaulted on the mortgages, causing millions in losses to the banks and lenders.

GOBERDHAN acted as the closing attorney and the straw buyers' attorney on numerous mortgage loans originated through GuyAmerican Funding, including loans in which the same straw buyer was used to purchase multiple properties within a short period of time. GOBERDHAN sent false documents to the banks, received the loan money from the banks into his attorney account, and made illicit payments from the sales proceeds to himself and his co-conspirators. GOBERDAN's wife also owned the title company that was used for many of the transactions, in violation of New York disciplinary rules, which allowed him to further profit from the scheme. GOBERDHAN, 57, of Elmont, New York, faces a maximum sentence of 210 years in prison. He will also be required to pay restitution to the victims of his offense and to forfeit the proceeds of his crimes. GOBERDHAN is scheduled to be sentenced by Judge SCHEINDLIN on April 13, 2011. DAVID RAMNAUTH, PEGGY PERSAUD, ORETTE KILLIKELLY, RAJNARINE SINGH, ELTON LORD, and TARAMATEE SINGH previously pled guilty, and RAVI PERSAUD and GEORGE ESSO were convicted after trial. Two charged defendants, RAFICK BAKSH and MAHAMOOD HUSSAIN are fugitives. Manhattan U.S. Attorney PREET BHARARA praised the investigative work of the Federal Bureau of Investigation and thanked it for its assistance in this case.

This case was part of the coordinated takedown of "Operation Bad Deeds," a joint federal, state, and local law enforcement operation targeting mortgage fraud crimes, announced on October 15, 2009, in which 41 defendants were charged in various mortgage fraud scams in New York, Pennsylvania, Ohio, and North Carolina. This case was brought in coordination with President BARACK OBAMA's Financial Fraud Enforcement Task Force, on which Mr. BHARARA serves as a Co-Chair of the Securities and Commodities Fraud Working Group. President OBAMA established the interagency Financial Fraud Enforcement Task Force to wage an aggressive, coordinated, and proactive effort to investigate and prosecute financial crimes. The task force includes representatives from a broad range of federal agencies, regulatory authorities, inspectors general, and state and local law enforcement who, working together, bring to bear a powerful array of criminal and civil enforcement resources. The task force is working to improve efforts across the federal executive branch, and with state and local partners, to investigate and prosecute significant financial crimes, ensure just and effective punishment for those who perpetrate financial crimes, combat discrimination in the lending and financial markets, and recover proceeds for victims of financial crimes. The prosecution of the cases arising from "Operation Bad Deeds" is being overseen by the Office's Complex Frauds Unit. The prosecution of this case is being handled by Assistant U.S. Attorneys REBECCA ROHR, NICOLE FRIEDLANDER, and ANTONIA APPS.

Blog Archive

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