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Monday, April 30, 2012

Attorney-Prosecutor Plays Sex-Abuse Politics

Brooklyn DA plays sex-abuse politics
The New York Post by Michael Lesher  -  April 30, 2012

If anyone had dared to suggest that Brooklyn District Attorney Charles Hynes’ office has an official policy giving preferential treatment to Orthodox Jewish sex criminals, the critic would probably be knee-deep in editorials charging him with anti-Semitism.  Alas, what’s an Orthodox Jewish lawyer like me to say when the DA’s lieutenants themselves announce just such a policy?  I’ll say this: Hynes’ refusal to disclose almost any information about the arrest or prosecution of alleged sex offenders from the politically powerful Orthodox community is not only discriminatory; it’s also a cynical insult to the victims his office is pledged to support.  Mind you, the discrimination is no mere allegation; it’s a matter of record. In letters this month to reporters Paul Berger, of Forward, and Hella Winston, of The Jewish Week, Assistant DA Morgan Dennehy explicitly affirmed that his boss’ policy for suppressing information about sex abuse is “unique” to the “Hasidic” community.  Yes, the letter gave a “reason” for singling out Orthodox Jews — but the reason made no sense. According to Dennehy, if the DA were to release any information about alleged perpetrators from the “tight-knit and insular” (his words) Orthodox community, there would be “a significant danger that the disclosure . . . would lead members of that community to discern the identities of the victims,” which could violate state law.  Hmm. When the DA’s office announced the sentencing of child abuser Gerald Hatcher last December, it gave enough information about his 11-year-old victim to lead those familiar with the assailant to guess her name. Surely many other Brooklyn communities are as “tight-knit” as the Orthodox Jews — yet Hynes is evidently willing to name perpetrators among them.  This double standard doesn’t just discriminate against non-Orthodox defendants. From my own work on behalf of abuse survivors, I know that Hynes’ secrecy-first approach also discriminates against Orthodox Jewish victims.  For instance, my legal efforts to uncover the record of the official failure to extradite (from Israel) one notorious indicted child abuser, Rabbi Avrohom Mondrowitz, enjoy the support of Survivors for Justice, a prominent advocacy group for Orthodox abuse victims. Yet in that case, too, the DA’s spokesman insists he’s protecting “the identity of [the] victims and their families from harassment” — even though I’ve told three courts that I don’t want any information that identifies the victims.  The split between victims’ real desires and Hynes’ ostensible concern for them is all too typical. The Orthodox sex-abuse survivors I know want their attackers identified publicly, both for their own vindication and because an open criminal process is less likely to be manipulated by community power politics.  Along that line, it’s no surprise that the only unqualified endorsement I’ve seen of the DA’s information lockdown has come from Ami Magazine, a weekly with close ties to ultra-Orthodox leadership.  That’s really the point. The preferential treatment for Orthodox abusers isn’t about the victims; it’s about the extent to which Orthodox leadership controls the way the DA treats these cases. Hynes yoked himself to that leadership when he announced a special program for handling sex-abuse complaints from the Orthodox community, called “Kol Tzedek,” in April 2009.  Orthodox influence on Hynes’ office is nothing new. Ohel Children’s Home and Family Services — the whip hand of the Kol Tzedek partnership — has had its own problems in the secrecy-about-abuse department.  A chapter I co-wrote with Amy Neustein for a new online book, “Sexual Abuse — Breaking the Silence” (based on extensive reporting by The Jewish Week and other publications) details Ohel’s shabby history of dodging mandatory-reporting statutes and federal privacy regulations in child-abuse cases.  The only new thing here, I’m afraid, is the spectacle of the DA’s office serving as PR agency for institutions that have done much more to obscure crimes in the Orthodox community than to fight them.  In presenting the all-too-familiar “under the carpet” policy as a form of victims’ rights, Hynes has showed his true priorities. Equal justice for sex-abuse victims isn’t one of them.  Michael Lesher, a lawyer, is writing a book on sex abuse in Orthodox Jewish communities.

Attorney-Prosecutors Playing Politics, Public Not Served, Again

Cutting cheaters a break
The New York Post  -  EDITORIAL  -  April 29, 2012

A company that cheated clients — and taxpayers — out of millions of dollars over the course of decades in one of the biggest construction rip-offs in city history got a huge break last week. For the second time.  Why? Because a federal prosecutor says that convicting Bovis Lend Lease of a crime would bar the firm from future government contracts, causing layoffs.  By not prosecuting the company, says Brooklyn US Attorney Loretta Lynch, “we’re able to keep 100 percent of the New Yorkers who were not involved with this employed.”  Now, we’re all for full employment.  But as an excuse for failing to hold a company fully responsible for rip-offs that it admits totaled some $19 million — or more?  Sorry. It doesn’t wash. True, two execs will plead guilty to fraud and conspiracy and face jail time.  But the firm itself — and likely numerous others working for it — got off easy. Joseph Graffagnino is the father of one of the two firefighters killed in the 2007 blaze at the Deutsche Bank building, whose demolition Bovis was overseeing. He rightly asked: “Isn’t that [a prosecutor’s] job, to put bad guys out of work by arresting them?”  Bovis has worked on some of New York’s biggest public building projects — Citi Field, the Time Warner Center, Grand Central’s renovation — as well as the scandal-scarred Deutsche Bank takedown.  The company admitted bilking its clients through a fraudulent overtime scheme in which foremen were allowed to add unworked hours to time sheets.  It also admitted to having fraudulently obtained contracts by promising to subcontract to minority-owned firms — but then having its own (non-minority) employees perform the work.  Lynch’s probe only covers the years 1999 to 2009, but she said the practice has likely gone on for decades, calling it “part of the culture at Bovis.” And it’s not limited to Bovis, either; the probe is ongoing.  Under the deal, the company agreed to pay $56 million in restitution. In return for reforms, further prosecution is deferred.  But this is the second time Bovis got a major, undeserved break in recent years: The Manhattan DA’s Office also declined to prosecute after the Deutsche Bank fire, in return for fire-safety reforms (and a report today says an oversight bars future prosecution).  Not to minimize the size of the fines in the recent deal — a record construction-fraud settlement, according to Lynch — but this sounds awfully like a local construction-company version of “too big to fail.”  Prosecutors don’t want to put Bovis’ commercial prospects at risk by holding it accountable for its “culture” of corruption.  “Again, they’re getting away with it,” Graffagnino says. “It’s always ‘let’s make a deal’ with these people.”  He’s right — and there’s no excuse.

Judge Says Sentence Appears 'Vindictive'

Judge Says Sentence Appears 'Vindictive'
The New York Law Journal by Andrew Keshner  -  April 30, 2012

A federal judge has ordered resentencing for a man convicted of manslaughter after finding that the state judge who presided over his trial appeared to be vindictive in applying the maximum 25-year term.  Eastern District Judge Joseph Bianco, sitting in Central Islip, ordered that Raul Izaguirre be resentenced before a different state judge after finding that there was "a reasonable likelihood of actual vindictiveness" by Nassau County Court Judge Meryl Berkowitz, who presided over Izaguirre's 2005 trial and sentencing.  Though Izaguirre was indicted on two counts of second-degree murder in connection with a fatal 2003 stabbing after a bar fight, he was ultimately convicted of first-degree manslaughter. A first-degree manslaughter charge for a first arrest carries a five-to-25-year term of incarceration while a second-degree murder charge carries a 25-year-to-life sentence.  Against the advice of defense counsel, Izaguirre refused to plea to a Class C violent felony in a deal where prosecutors in the Nassau County District Attorney's Office would recommend eight years of incarceration and two years of supervised release.  Just before voir dire, Berkowitz told him, "Do you understand that if you are found guilty after this trial you will do 25 years in prison?"

In Izaguirre v. Lee, 10-cv-3216, Bianco said the statement "created a presumption of vindictiveness once the statutory maximum was, in fact, imposed at the time of sentencing. That presumption was not rebutted by any other objective information in the record."  Bianco ordered Izaguirre be resentenced within 90 days from his April 25 ruling or he would grant Izaguirre's habeas petition.  Nevertheless, Bianco rejected Izaguirre's other claims, which included that Berkowitz improperly tried to persuade a guilty plea.  The case involved the 2003 killing of Marvin Valle, who was found dead of multiple stab wounds on a Hempstead street.  Though there were no eyewitnesses, a co-worker and a relative would testify to overhearing Izaguirre discuss the stabbing; a four-inch-long knife was discovered at the supermarket where Izaguirre worked; and forensic tests showed the victim's blood was on the knife.  According to trial transcripts, Izaguirre's assigned defense counsel, William Rost of Mineola, told Berkowitz that he thought his client believed he could not be convicted without an eyewitness. "I have tried to express to him the fact that's not required," Rost said in the transcript.  After Berkowitz told Izaguirre he would serve 25 years if found guilty, she later added, "The prisons are filled with people who were convicted of crimes where there was no eyewitness, and they are filled with people who feel they were wrongfully convicted because there wasn't enough evidence, or who have convinced themselves that there wasn't enough evidence. Those people are not necessarily the kind of people you want to spend the next 20 years of your life with," she said.  Bianco would later view the reference to 20 years as the judge's factoring of time already served and potential credits for good behavior.  Noting there was an "immigration hold" on Izaguirre, Berkowitz told him if convicted, he would probably "never see daylight again" between his New York sentence and deportation to Honduras. But Izaguirre insisted on a trial.  After both sides rested their case, Berkowitz agreed to charge the jury on the lesser included offense of first-degree manslaughter in addition to second-degree murder.  He was acquitted on the murder charge but found guilty of manslaughter.  At Izaguirre's 2005 sentencing, prosecutors asked for "no less than 15 years in prison." Berkowitz pointed out that the victim, like Izaguirre, was young "and now he will never grow old."  She sentenced him to 25 years and five years of post-release supervision.  Izaguirre filed his habeas petition in July 2010, contending his sentence was imposed as retaliation for refusing the plea deal.

In his decision, Bianco observed a sentence is "unconstitutionally vindictive" when the punishment is greater "because the defendant exercised a constitutional right, such as the right to jury trial or the right to appeal."  Bianco applied the "Pearce presumption," established in a 1969 U.S. Supreme Court ruling that upheld the reversal of a defendant's conviction after he received a longer sentence on retrial, North Carolina v. Pearce, 395 U.S. 711. The presumption assumes vindictiveness when a tougher sentence is imposed on retrial and there is no evidence in the record to explain the longer sentence.  The presumption has since been applied to other contexts, such as prosecutorial vindictiveness in plea negotiations, Bianco observed. The U.S. Supreme Court "made it clear" that vindictiveness claims could be raised against judges and prosecutors and at different points in a trial and sentencing, he said.  The Nassau County District Attorney's Office argued that the U.S. Supreme Court had not applied the presumption in cases like Izaguirre's. But Bianco said that was of "no legal significance."  He said there was "no question" the presumption had been triggered. And while it was possible Berkowitz had no actual vindictiveness, there was "a reasonable likelihood of actual vindictiveness."  Bianco discarded arguments by prosecutors that Berkowitz's statement was "motivated, and even invited" by the defense, or that the statement was just "an advisement" instead of a threat.  The County Court's "original statement reasonably conveys the ostensible message that the County Court had predetermined that Petitioner would receive a much more severe sentence should Petitioner invoke his right to trial and further supports the application of the Pearce presumption." Bianco wrote.  Izaguirre filed his habeas petition pro se but Bianco appointed Kevin Keating of Garden City to represent him.  In an interview, Keating called Berkowitz "an excellent judge" and said it was "not inappropriate" or uncommon for judges to involve themselves in plea negotiations.  "But here, Judge Bianco correctly concluded that the affirmative statement that 'you will get 25 years if you go trial and are convicted,' that triggers the presumption of vindictiveness, when in fact it was ultimately imposed," he said.  Keating said he plans to represent Izaguirre at his re-sentencing, adding that he will likely seek the minimum five-year term.  Matthew Brissenden, of the Law Offices of Kevin J. Keating, assisted in the case.  In an interview, Rost, who represented Izaguirre at trial, said he was "happy" that his client "got his day in court with regard to the sentence."  Assistant District Attorneys Tammy Smiley and Andrea DiGregorio represented the Nassau County District Attorney's Office.  A D.A. spokesman said the office is reviewing its options, but declined to comment further.  Izaguirre, 34, is incarcerated at the Eastern N.Y. Correctional Facility.  Andrew Keshner can be contacted at akeshner@alm.com.

Sunday, April 29, 2012

Federal Judge Has Never Seen Such a 'Botched Situation'

‘Botched’ Federal Criminal Indictment Ends in Acquittal
The Gainesville Sun by Jason Geary and Anthony Clark - March 20, 2012

A Gainesville-based construction company and its vice president were acquitted on federal charges of bribing a Polk County school official in Tampa on Monday because the grand jury indictment mistakenly referred to the Polk County government and not the Polk County School District. M.M. Parrish Construction Co. and its vice president, Lloyd Whann, were on trial in Tampa’s federal courthouse for two weeks on charges of bribing Bob Williams, former assistant superintendent of facilities for the Polk County School Board. Prosecutors accused the company of gaining a competitive edge by bribing Williams with posh hunting and fishing trips, expensive bathroom renovations on Williams’ home and a $2,000 shotgun. The Gainesville-based company has received more than $100 million worth of work from the Polk County School Board, nearly four times as much work as its nearest competitor. The defense argued the company got work based on its reputation for high-quality work and had no intent to influence Williams with gifts. “Witnesses testified one after the other that there was not a better construction company in the state to show they got the work they got because they are the best. That’s the only reason they got it,” said Henry M. Coxe III, the company’s attorney. Williams still faces punishment because he accepted a plea deal last year. He pleaded guilty to one count of conspiracy to commit bribery, which carries a maximum penalty of five years in prison. Whann’s attorney, Larry Turner of Gainesville, said the acquittal was about more than poor verbiage in the indictment. The case was in federal court because the indictment said Polk County received federal funding, but Williams worked for the Polk County School District, a separate government agency. That meant the evidence presented was insufficient, he said. Turner said there were other problems with the way the indictment was drafted. U.S. District Judge Richard A. Lazzara said he has never seen a “botched situation” like this in his 14 years on the federal bench. Lazzara told Michael Walsh, the company’s president, and Whann that they were not guilty of the charges and were free to leave. The sudden ending brought both men to tears, and they embraced their lawyers, family and friends. “I just had to thank God, that’s all I could think was thank you God for bringing us through this,” Walsh told The Sun on Tuesday. “We just appreciate all the love and support that we received from friends and customers and people from all over throughout the whole process.” While M.M. Parrish Construction and the local real estate firm Coldwell Banker M.M. Parrish Realtors were founded locally by the Parrish family, the construction company was sold in the early 1980s.”

Saturday, April 28, 2012

Manhattan DA Vance Examining Top Legal Wrongdoing

New York Prosecutors Examining Former Dewey Chairman
The New York Times by Peter Lattman  -  April 27, 2012

The Manhattan district attorney’s office is investigating accusations of wrongdoing by Steven H. Davis, the former chairman of the troubled law firm Dewey & LeBoeuf, the firm said on Friday.  Dewey acknowledged the investigation in an internal memorandum sent to its partners. The firm said that it has asked two of the firm’s partners to conduct its own internal investigation into the accusations.  A group of Dewey partners presented evidence to the district attorney about supposed financial improprieties by Mr. Davis, leading the office to open an investigation. The inquiry is said to be in its early stages and Dewey is fully cooperating with the criminal inquiry, the firm said.  Mr. Davis did not return telephone calls and e-mails seeking comment.  News of the district attorney’s investigation comes as the firm fights for its survival amid an accelerating wave of partner defections. About 75 of its 300 partners have left the firm since January after a weak financial performance forced management to slash partners’ salaries, many of which had been previously guaranteed.  On top of the partner departures, Dewey is struggling under the weight of a heavy debt load. The firm is locked in negotiations with its banks to restructure the debt. In addition to a $100 million credit line with its banks, it also has a $125 million bond issue, some of which matures next year.  The banks — JPMorgan Chase, Citigroup, Bank of America and HSBC — have given the firm until Monday to come up with a reorganization plan. That deadline, already extended once, could be further delayed, according to people in the discussions.  Dewey has been exploring a prearranged bankruptcy filing in which the firm would reach an agreement with its lenders over a restructuring while striking a merger with another firm.  Greenberg Traurig, one of the nation’s largest law firms with more than 1,700 lawyers, has contemplated a possible merger with Dewey, and has also looked to “cherry pick” certain groups of Dewey lawyers. On Friday, though, Greenberg issued a statement suggesting that a merger deal was unlikely.  “We have a great deal of respect for Dewey LeBoeuf and many of their quality lawyers,” Greenberg said. “While we have had preliminary discussions relating to some of its lawyers, there are no commitments nor agreements and we are not involved in the firm’s financial situation or relationships.”  On Friday, Dewey told its partners that in light of the district attorney’s investigation, it had asked Harvey Kurzweil and Seth Farber, as counsel to the firm, to conduct an internal investigation into these accusations. Mr. Kurzweil is a veteran litigator who joined Dewey Ballantine directly out of law school in 1969. Mr. Farber, a former federal prosecutor in Manhattan, practices white-collar criminal defense.  Dewey & LeBoeuf was formed in 2007 after the merger of two old-line law firms Dewey Ballantine and LeBoeuf, Lamb, Greene & McRae. It created one of the largest law firms in New York, with more than 1,000 lawyers in 25 offices around the globe.  Dewey’s namesake is Thomas E. Dewey, the three-term New York governor who also served as the Manhattan district attorney.  News of the investigation had earlier been reported by Law360.

The 'Secret' American Laws You Have to Pay to See

The 'Secret' American Laws You Have to Pay to See
Daily Finance by Bruce Watson - SPECIAL REPORT  -  March 23, 2012

In America, dealing with the legal system isn't cheap If you find yourself in court, chances are that you'll spend a fortune hiring the best lawyer you can afford. But while good legal counsel costs a bundle, access to the law itself is supposed to be free. In other words, although you may need a professional to help you understand the legal code, you are supposed to be able to find out what the laws are without paying for the privilege.  But that's not the case with all laws. For some, you have to pay a stiff price just to take a peek.  Codes and standards -- the rules governing everything from fire safety in your office to your home electrical system -- occupy a twilight area between private information and public law. On the one hand, some of these rules are part of the legal system, and a failure to abide by them can result in stiff penalties. On the other, many of them were developed and updated by private organizations like the U.S. Green Building Council, the National Fire Protection Association or the Society of Automotive Engineers. Having produced these codes and standards, these nonprofit organizations are legally allowed to charge for access to them.

A Battle For Democratic Ideals

According to Jerry Goldman, research professor of law and director of the Oyez Project at the Chicago-Kent College of Law, this poses a serious challenge to some of America's most deeply-held ideals. "In a democracy, our laws are our operating system," he argues. "The operating system has to be free if we want a vibrant democracy."  By denying access to the law, Goldman claims, standards-setting organizations have created a "barrier to entry" for people who want to know the rules governing many aspects of their lives: "A layperson who wants to understand building code -- who wants to lift up the hood and see what's going on, as it were -- will be stuck with the full price of the code, and will be deterred from pursuing the issue further."  One group has faced the code issue head-on. Public.Resource.Org, a nonprofit organization dedicated to free access to the law, has spent the last five years posting state safety codes online. Recently, the group upped the stakes with their decision to copy and distribute 73 safety standards manuals that are integrated into federal law. In a largely symbolic move, they sent out 25 copies of the code books to a variety of groups, including the National Archives, the White House, and Harvard Law School.  But while Public.Resource.Org's actions were symbolic, the costs -- and potential consequences -- are far more tangible. All told, those 73 manuals cost the group $7,416.26, and the fines for reproducing them could total more than $273 million.

Charging for the Law

Why do standards-setting organizations charge so much for code books -- and why do they threaten such high fines for copying? To Goldman, the answer is simple: "As far as I can tell, there's no reason, apart from profiteering on the part of the organizations that render this service."  But not everybody sees the problem in such black-and-white terms. Thomas Bruce, director of Cornell's Legal Information Institute, notes that creating codes and standards isn't cheap: "The standards-setting organizations develop these codes at some expense to themselves," he explains. "They have to do extensive testing, writing and editing."  On the other hand, Bruce also admits that there is a definite problem with denying public access to the law. As he puts it, "A very real problem is that people can find themselves being held legally accountable for access to information for which they have to pay a fee."  To make things worse, the cost to access many codes has gone up, raising questions about where the money is going. Ideally, standards-setting groups like the NFPA or the SAE would use the money generated by their publishing wings to fund their testing and development programs, with little cash left over. In reality, though, Bruce notes, "It's reasonable to ask how many of these standards-setting organizations are becoming profit centers."

Commerce vs. Democracy

Ultimately, the question of access to codes translates into a battle between the democratic ideal of free access to the law and the very real -- and very high -- cost of developing these codes. If standards-setting groups were forced to publish their work for free, then there would be little economic reason for them to continue the high-cost process of developing codes. Or, as Thomas Bruce puts it, "If we take an ideological position and assume that we want total access to these standards, we have to ask how we shift the cost of producing them."  The obvious answer is that, if private organizations were no longer able to produce standards, the federal government would fill the gap, at some expense to taxpayers. But Jim Shannon, president and CEO of the NFPA, argues that the financial costs would be the least of the problems with federally-produced standards. A much bigger concern, he claims, would be the loss of an efficient, independent, and highly responsive standards-setting body.  The National Fire Protection Agency, Shannon's group, brings together more than 5,000 employees and volunteers to produce and test its standards. Representatives of all interested parties -- including manufacturers, consumers, the government, and other groups -- take part in the code-creation process. But while the NFPA draws from a wide variety of shareholders, it isn't dependent upon any of them for its funding, which means that it can maintain complete independence.  That's radically different from government organizations, like the FDA and the SEC, whose regulations generally bear the fingerprints of an army of well-paid lobbyists. And, unlike the food, drug and financial industries, which have been riddled with scandals and corruption, the NFPA's standards have proven quite successful, at least for the 150 countries -- including the United States -- that have adopted them. "It's a classic example of a public/private partnership that works," Shannon argues.

Much Ado About Nothing?

But what about access to the law? According to Shannon, the issue has been greatly overblown. Far from the high-priced barrier to legal access that Public.Resource.Org claims, he notes that the NFPA actually goes to great lengths to ensure that the public is able to access all of its codes at low cost: "We have put our codes and standards on the Internet in a read-only format. People can access them for free, but can't download or print them out."  Shannon argues that the NFPA's system works well for all of its shareholders.  "We don't get complaints from states, experts, agencies, or really even the public," he says. "We do hear complaints from third-party groups that want free information in the abstract." But while their argument is abstract, Public.Resource.Org's push for free publication of standards, Shannon notes, would have very real impacts: "It would destroy a system that has worked for 100 years. The consequences would be huge."

A Bad Example

In some ways, the NFPA represents an ideal example of a standards-setting body. The Fire Code, their main publication, is an exhaustive, 668-page compendium of fire protection requirements, updated every three years. It costs $82, but -- as Shannon notes -- is available online for free. What's more, it is self-funding: Proceeds from its sale pay for its development, as well as public education, advocacy work and lobbying for stricter safety standards.  But the practices of some standards-setting bodies are a bit more questionable. For example, the U.S. Green Building Council, a nonprofit group that creates the standards for environmentally-sustainable buildings, charges quite a bit more for its materials. For example, the group's main publication -- the 645-page LEED Reference Guide for Green Building Design and Construction -- costs $195, more than twice the price of the Fire Code, and the data isn't available for free online.  This wouldn't be a major problem, if not for the fact that all new work on every federal building must meet the LEED gold standard. In other words, if an engineer, architect, contractor -- or even Public.Resource.Org's ideal civilian who wants to take a peek under the hood of America's laws -- would like to know about the legal requirements for a government building, he or she would have to pay a premium for the information. Tristan Roberts, editorial director of BuildingGreen, points out the basic rules are available online for free, but they lack a lot of key information. "You'd be crazy to try to certify or construct a LEED building without the reference guide," he says  Surprisingly, Public.Resource.Org has not chosen to target the USGBC. They have, however, taken aim at Underwriters Laboratories, an organization whose standards aren't actually codified into the law.  Ultimately, Public.Resource.Org's quest for the disclosure of all our laws is certainly worthwhile, but their targets seem to be cherry-picked for maximum political impact, regardless of whether or not the groups involved are actually obscuring the law. And, with organizations like NFPA working to balance ease of access with protection for their intellectual property, it's worth asking if Public.Resource.Org's quest is a constitutional crusade or a bit of political positioning.  Public.Resource.Org refused our request for comment.  Bruce Watson is a senior features writer for DailyFinance. You can reach him by e-mail at bruce.watson@teamaol.com, or follow him on Twitter at @bruce1971.

States with the Most Lax Anti-Corruption Laws

States with the most lax anti-corruption laws
MSNBC by Michael B. Sauter, Charles B. Stockdale, 24/7 Wall St. -  April 28, 2012

The Center for Public Integrity released a report detailing the risk of corruption and lack of accountability in all 50 states last week. The findings of the report should worry anyone who believes state governments are transparent and free of corruption. Of course, no state is without flaws. Unfortunately, nearly every state received a grade that would give residents cause for concern.  The Center for Public Integrity’s report examined issues concerning accountability and ethics in each state government. States were graded on 330 separate metrics, which were grouped into 14 major categories. Overall grades are based on the average grades in the major categories, which included lobbying disclosure, political financing, internal auditing, ethics enforcement agencies and redistricting.  Most states scored poorly. No state earned an A, and only five states received better than a B+. More than half the states received a D+ or worse. Scored from 1 to 100, eight states earned failing grades of 59 or below from the project.

24/7 Wall St. examined the eight states that received an F and the five states that scored B- or better. A review of the states with the highest and lowest scores illustrates that regular monitoring of the government by citizens, public employees and watchdog groups is essential to encourage state integrity.  According to Randy Barrett, Communications Director for the Center for Public Integrity, one of the most widespread issues throughout these state governments is the lack of public access to information, which, he says, is key to preventing other kinds of corruption and conflicts of interest from occurring. “When you think about it, that’s really the root of transparency. If citizens can’t see into how their state does business and decision-making, that’s the real problem,” Barrett said.  States with the worst corruption risk scores lack powerful watchdog agencies. In many states, according to Barrett, the existing groups intended to ensure ethical action by elected officials lack real power. Virginia, which scores among the worst in terms of corruption risk, does not have a statewide ethics commission at all. Barrett suggests that the reason many states have such ineffectual watchdog organizations is that the elected officials they are supposed to be monitoring consistently vote in favor of cutting their funding and restricting their power.  Surprisingly, most of the states that received high marks have big governments with long histories of corruption and political machinery. Connecticut and California fit this description. New Jersey, where it seems former and current officials are indicted every year on ethics charges, received the highest grade in the country. Despite its colorful political past and present, New Jersey received a perfect score in areas such as lobbying disclosure and internal auditing. According to the report, the reason states with historical problems with corruption now have high accountability scores is precisely because of their former offenses. Those past problems led to strict enforcement measures that have kept politicians honest and information readily available.

Many of the states with the worst corruption scores have not had the same public issues with corruption that trigger reform. These states, according to the report, are among the most sparsely populated in the country. Reporters sent to conduct research for the State Integrity Investigation found these smaller populations lead to a relaxed, “everybody-knows-everybody” attitude. This environment leads to a lack of reporting by elected officials, a look-the-other-way approach regarding campaign finance and lobbying, and an underfunding (or nonexistence) of political oversight groups.  According to Barrett, states with stagnant political environments often encourage corruption. Governments with high levels of corruption tend to have a political party -- either the Democrats or Republicans -- in power for a long time. The states that have had a “machine” in place for a long time often tend to be the most corrupt. Machines tend to want to protect themselves.

These are America’s most corrupt states:

1. Georgia
Overall grade: F (49)
Public access to information: F
Legislative accountability: F
Political financing: F
Ethics enforcement agencies: F
Georgia has the worst levels of corruption risk and lack of accountability of any state in the country. The state scored a D or worse in 12 of the 14 categories. The state’s biggest problem is the absence of a strong ethics enforcement agency. Republican governor Sonny Perdue managed to get an ethics bill through the legislature, but by the time it passed, his proposals to ban gifts to state workers and clearly define appropriate campaign spending had been stripped out. According to State Integrity reporter Jim Walls, while Georgia has provisions to prevent certain kinds of corruption in campaign finance and lobbying, the state is full of unaddressed loopholes and lax enforcement. “About 2,000 Georgia officials, including one in five sitting legislators, have failed to pay penalties for filing their disclosures late, or not at all,” he said.

2. South Dakota
Overall grade: (50)
Public access to information: D+
Legislative accountability: F
Political financing: F
Ethics enforcement agencies: F
South Dakota, which has the second-highest corruption risk score, has nine failing grades out of 14 categories, and three Ds. The state, which has among the lowest population density in the country, does not have “comprehensive state ethics laws,” an ethics commission or satisfactory transparency laws, as Denise Ross writes for the State Integrity Investigation. The state does little to require public officials, other than judges, to disclose their income and assets. State law features a loophole that makes it possible for individuals to make unlimited political donations. The state has made major improvements in its integrity by making many state records available online in recent years.

3. Wyoming
Overall grade: F (52)
Public access to information: F
Legislative accountability: D-
Political financing: F
Ethics enforcement agencies: F
The state of Wyoming received a grade of F in nine of the 14 categories measured by the State Integrity Investigation. The state’s mechanism for self-governance is extremely poor. According to the report, there is no hotline, website or other method for state employees to report corruption. The state also has had the same political machine in place for some time. Wyoming’s two U.S. senators both have been Republicans since 1977. In 2006, the state legislature, which is primarily Republican, overrode a veto from the governor and ruled themselves exempt from open records laws. This means bills in draft can be kept secret, as can all communications with staff, until a bill is proposed.

4. Virginia
Overall grade: F (55)
Public access to information: F
Legislative accountability: F
Political financing: F
Ethics enforcement agencies: F
Among Virginia’s ethical failings are poor government oversight, weak consumer protections and poor separation between politicians and big business. Overall, it receives nine Fs. One of the state’s greatest offenses is its exemption of its State Corporation Commission -- a regulatory agency that is responsible for overseeing all businesses, utilities, financial institutions and railroads in the state -- from its Freedom of Information Act. While Virginia has a General Assembly Conflict of Interests Act, the law has proven incredibly inefficient. Only one legislator has ever been prosecuted for violating it -- 26 years ago. The state is also weak on enforcing disclosure laws. In 2004, it was discovered that former Democratic Governor L. Douglas Wilder failed to file disclosure reports for his gubernatorial election campaign. Worst still, approximately $169,000 from his campaign account was unaccounted for. Consequently, L. Douglas Wilder, Jr., the former governor’s son and one-time campaign treasurer, pleaded guilty to two election law misdemeanors in 2007, resulting in a $1,000 fine and a suspended one-year sentence.

Read the rest of America's most- and least-corrupt states at the 24/7 Wall St. website

Friday, April 27, 2012

Former NYS Lawyer Sentenced for Making Racist Calls

Judge: Racist calls were no 'prank'
The Albany Times Union by Robert Gavin  -  April 25, 2012
Victims of ex-lawyer's phone threats describe fear, mental intimidation

ALBANY, NY — Disgraced ex-lawyer James J. Hennessey was sentenced Wednesday to the maximum 1 to 3 years in prison for tormenting his black neighbors with racist phone calls, but not before a judge blasted him for comparing the menacing calls to a "teenage prank thing" he learned from watching television.  "Your hate crimes were repeated to various victims," Judge Stephen Herrick told Hennessey, 59, of Winnie Street, moments before sentencing him for a series of threatening phone calls to victims in 2010. "You terrorized them. You terrorized aspects of your neighborhood, of the community, of the city of Albany."  The judge rejected a probation officer's report suggesting Hennessey receive a split sentence of less jail time and probation. He questioned the remorse of Hennessey, who resigned Feb. 1 from his $104,080-a-year job at the state Department of Civil Service.  The judge said Hennessey told the probation officer: "It was almost like a teenage prank thing. I saw how to do it on TV. I made a quick prank call, then a couple of weeks later I did it again. Shortly thereafter, I got carted off."  Hennessey, a Bronx native and one-time New York City police officer, initially faced 11 counts of second-degree aggravated harassment — charges changed to hate crime felonies because of their racist nature.  He pleaded guilty to two counts in February to resolve the case.  On Wednesday, Hennessey told the judge he didn't realize the impact of his calls at the time, but does now.  "I hate no one," Hennessey said, highlighting his work for an affirmative action program. "I've always considered people of any race my friend and I generally have a very open personality toward anyone. I have a lot of remorse for what was done."  Victims described how his hateful calls drove them to fear even leaving their home.

"Do you know how it feels to know that you are being watched by someone who has nothing but pure hatred for you and your family all because of the color of your skin?" stated a letter from Nancy Williams of Albany. It was read aloud in court by Assistant District Attorney Linda Griggs.  Williams stated her family had to install a six-foot stockade fence to be able to sit in the yard without fear of being stalked.  "Myself and my fiancee were harassed, intimidated, terrorized, emotionally and psychologically affected by the acts of James Hennessey," another victim, Sean Brown of Albany, told the judge.  Brown, 39, and his fiancee, Dana Henson, 28, had not been in their Pine Hills home a month when Hennessey began harassing them in July 2010.  Brown said he soon was not sure if his tormentor might toss a brick into his home or burn a cross on his property.  "The acts of James Hennessey caused mental intimidation where I didn't know if I should take action into my own hands," he said. "Should I purchase a gun? ... Can I get to the phone fast enough? Can the police get here fast enough to protect me and my family?"  Henson said she and Brown had just activated a new phone when it rang.  "I never imagined what would be on the other end when I picked up," she said, recalling the caller yelled racial and sexist slurs and made references to kidnapping, ransom and property values. He also told them to move out. "We experienced these hate-filled calls for weeks ... I felt unsafe in my own home. I didn't trust my neighbors."  Henson, who teaches at a local college, noted Hennessey's law work involved the protection of equal opportunities for all.  "He's a true coward," she said. "I think living amongst hard-working people from diverse backgrounds is far more desirable than bunking in a jail. Perhaps he didn't think of that before he started harassing us."  Between May 2010 and July 2010, Hennessey made upward of 200 phone calls to 38 recipients through a website — http://www.bluffmycall.com — which allowed him to block his phone number. At times he made it appear on victims caller ID that his calls were coming from the Ku Klux Klan in Arkansas.  Prosecutors say Hennessey also phoned real estate agents warning them not to rent homes to black people in his neighborhood near St. Peter's Hospital. And they say he used a computer to alter his voice on the calls. In one of the calls, Hennessey threatened to kill a black woman in his neighborhood. In another, he told a victim that "we are going to kidnap the little black boy who plays outside and tie him up."  Albany police and FBI agents traced calls to Hennessey through documents from the website, Verizon Wireless, a Time Warner Cable account and Hennessey's Internet provider address.  Griggs called Hennessey's crimes "egregious and reprehensible." She asked for a state prison sentence.  Terence Kindlon, the defendant's attorney, suggested his client's mental health played a part in the crimes. He said after his client's arrest, Hennessey was discovered lying naked in his home with empty pill bottles around him.  Herrick was unmoved, sentencing Hennessey to the maximum.  "These acts are incredibly bad. Reprehensible. Inexcusable," the judge told Hennessey. "You have irreparably damaged the people that you harassed."  rgavin@timesunion.com • 518-434-2403 • @RobertGavinTU

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Lawyer Sentenced to Prison for Making Racist Calls
The New York Law Journal by Joel Stashenko  -  April 26, 2012

A lawyer who once worked for New York state was sentenced to between one and three years in prison yesterday for making what authorities said were nearly 200 harassing phone calls to 38 different residences in his Albany neighborhood. Many of the calls were racist in nature, either threatening harm against minority residents or their children, according to Albany County District Attorney P. David Soares.  James Hennesey Jr., 59, had pleaded guilty earlier this year to two felony counts of aggravated harassment as a hate crime, both Class E felonies. He resigned from his $104,080-a-year job with the Department of Civil Service just before entering his plea. He was sentenced by Albany County Judge Stephen Herrick.  Soares said Hennesey attempted to use blocking devices to disguise his voice and to route calls he placed from Albany through the Internet to make it appear they were coming from a Ku Klux Klan location in Arkansas. In one call, Hennesey threatened to kidnap the young black child of a neighborhood family and "tie him up," Soares said.

A Legal Perspective: 'You Have to be Kidding'

'You Have to Be Kidding'
The New York Law Journal by Joseph D. Becker  -  April 25, 2012

Contrary to general impression, lawyers are timid souls. When they stand before judges they tremble at the prospect of giving offense, for an offended judge can become a dangerous adversary. There is nothing, however, to stop the rest of us from calling "foul" when a judge has gone too far.  Jerry Smith, a judge of the U.S. Court of Appeals for the Fifth Circuit in New Orleans, directed a U.S. Department of Justice lawyer to write a three-page, single-spaced letter describing the government's position respecting judicial review., i.e., the power of federal courts to declare acts of Congress unconstitutional.  The astonished government lawyer could hardly have said, "you have to be kidding." That is the reply that the order deserved, —there are less polite retorts that come to mind—for the power of judicial review has been unquestionable since 1803, when Chief Justice John Marshall spoke in Marbury v. Madison, and is known to all who had a decent high-school course in civics. But the poor fellow was trying to win his case.  What prompted Judge Smith to make his order was not in response to anything said by the lawyers in that case. Rather, the provocation was nothing less than a remark, an obiter dictum, of the president of the United States. President Barack Obama, in defense of the Affordable Health Care Act recently argued in the U.S. Supreme Court, remarked that it "would be an unprecedented, extraordinary step" for the court to overturn the law. The president later expanded and clarified the remark, but it was the original comment that provoked Judge Smith.  The president was quite right to say that, were the court to declare the law unconstitutional, the decision would be "extraordinary." It is true that federal courts have declared acts of Congress unconstitutional in dozens of cases. But there are countless numbers of federal statutes that have been sustained or gone unchallenged since 1803. In that sense the term "extraordinary" is perfectly defensible.  In suggesting that a holding by the Supreme Court of unconstitutionality would be "unprecedented," the president, once a teacher of constitutional law, was obviously not speaking ex cathedra; he knows perfectly well of Marbury and its progeny. He may have meant this: federal statutes, great and small, have been declared unconstitutional, but, with the possible exception of President Franklin D. Roosevelt's National Industrial Recovery Act, invalidated by the Court in 1935 in Schechter Poultry Corp. v. United States, 295 U.S. 495, there has not been a judicial declaration of such consequence in 75 years.  Recent cases like United States v. Morrison (2000), declaring the Violence Against Women Act unconstitutional, and United States v. Lopez (1995), striking down the Gun-Free School Zones Act, are incomparable to "Obamacare," a statute that runs to 2,700 pages and transforms the nation's health policy. "Unprecedented" does not go too far in the circumstances.  On April 5, U.S. Attorney General Eric Holder wrote to Judge Smith (and two other members of the panel) in response to the order. His letter does indeed run, obediently, to 21/2 single-spaced pages. And while it concedes the obvious, "the power of the courts to review the constitutionality of legislation is beyond dispute," it seizes the day. The attorney general reminded the Court of Appeals that acts of Congress are "presumptively constitutional," a presumption that is "strong." The modern rule, Holder said, "forbids striking down an Act of Congress except upon a clear showing of unconstitutionality," quoting Salazar v. Buono (2010). The high court consequently accords "great weight to the decisions of Congress."  The attorney general might have taken a tougher line with Judge Smith but to little purpose. The judge, on the other hand, merits our displeasure for treating our chief law enforcement officer like a high school kid simply to get at the president. Federal judges win courtesy because they are distinguished lawyers who respect deeply the process in which they are engaged. Judge Smith forgot that the other day.  Joseph D. Becker, a founding partner of Becker, Glynn, Melamed & Muffly, is the author of The American Law of Nations, (Juris, 2001).

Meaningless Judicial Meetings Planned

Commission Gears Up to Pick Nominees for Ciparick's Seat
The New York Law Journal by Joel Stashenko  -  April 25, 2012

The Commission on Judicial Nomination has scheduled three public meetings to explain the process of seeking nominees to succeed Court of Appeals Judge Carmen Beauchamp Ciparick, who is 70 and must step down at the end of the year due to mandatory retirement. The open meetings, designed to make the nomination process more transparent, will explain the qualifications for potential applicants, the selection process and rules for submitting recommendations.  The meetings are scheduled for May 8, 5:30-7:30 p.m., at the New York State Bar Association, 1 Elk St. in Albany; May 16, 12:15-1:30 p.m., at the Telesca Center for Justice, 1 West Main St., Rochester; and June 19, 6-7:30 p.m. at the New York City Bar, 42 West 44th St.  Ciparick has been on the court since 1993. Naming her replacement will be the first appointment Governor Andrew Cuomo will make to the seven-member Court of Appeals.  The 12-member commission, chaired by former chief judge Judith Kaye, counsel to Skadden, Arps, Slate, Meagher & Flom, must submit a list of between three and seven names to Cuomo by Dec. 1. The governor must then choose one nominee from the list between Jan. 1 and Jan. 15, 2013. The nomination is subject to state Senate confirmation.  The commission was criticized in 2008, especially by minority state legislators and Governor David Paterson, for submitting to a list of seven male candidates, six of whom were white, to succeed Kaye as chief judge (NYLJ, Dec. 4, 2008). Kaye pledged to make the work of the commission clearer to the public and to encourage a more diverse applicant pool.

Thursday, April 26, 2012

Citing Judge's 'Disdain' for Defendant, Panel Corrects 'A Gross Miscarriage of Justice'

Citing Judge's 'Disdain' for Drug Defendant, Panel Cuts Sentence
The New York Law Journal by Brendan Pierson  -  April 25, 2012

A Manhattan judge overstepped her authority when she refused to go along with a plea agreement in a drug case in which she did not find the defendant "worthy of sympathy," a unanimous appeals panel has ruled, calling the judge's refusal "a gross miscarriage of justice." The Appellate Division, First Department, opinion in People v. Anonymous, 319/09, written by Justice Peter Tom, blasted Manhattan Supreme Court Justice Carol Berkman (See Profile) for displaying "hostility, even disdain" toward the unnamed defendant throughout the case and for arriving at a manifestly unjust three-year sentence for the defendant, who pleaded guilty in 2009 to acting as a lookout for a drug sale. Tom, joined by Justices John Sweeny, Leland DeGrasse, Sheila Abdus-Salaam and Sallie Manzanet-Daniels, reduced the sentence to time served. Following her arrest, the defendant reached a deal with prosecutors in the Manhattan District Attorney's Office in which she agreed to plead guilty to a Class B felony, but would be released and later allowed to replead to seventh-degree drug possession if she helped prosecutors go after drug dealers in her neighborhood. Berkman expressed doubt about the bargain, saying that the defendant, a heavy drug user, should instead undergo drug treatment and could face "temptation" if she returned to her neighborhood, according to Tom's April 24 opinion. Nonetheless, the defendant went along with the deal and was able to help prosecutors make several drug-related arrests. Her cooperation put her at substantial risk, with neighborhood drug dealers threatening her and calling her a "snitch," according to the opinion.

In December 2010, attorneys for the defendant and prosecution appeared before Berkman to ask that, in light of the defendant's cooperation, the original indictment be dismissed and the defendant be allowed to replead to seventh-degree possession and be sentenced to probation. The assistant district attorney asked that the proceeding be sealed so that the parties' counsel could explain how the defendant had cooperated without endangering her. Berkman, however, refused to seal the courtroom or even allow the attorneys to approach the bench, according to Tom's opinion. She complained that she had not been kept sufficiently apprised of the defendant's cooperation and criticized prosecutors for sending the defendant "back to the street to hang out with the same people that she has been hanging out with all of her life, so that she could continue to supply you with, I don't know what." When the prosecutor would not give more detail about the defendant's cooperation in open court, the judge said, "the People don't want to be heard." She also refused to hear defense counsel. She then said that she was "totally uninterested in this case or what you want done with it because there is nothing." "I can't even feel bad for [defendant] here, I don't think she is worthy of sympathy," she said, according to Tom's opinion. "I don't think she has shown the slightest sign of reforming her life. Nothing." In January 2011, the attorneys again appeared, this time without the defendant. They explained that the defendant had recently given birth, and again asked for the indictment to be dismissed. Berkman was unmoved, saying that "after your little detour and foul up, I have no idea what [defendant] has been doing the last couple of years, other than getting pregnant." The judge also said that, at the previous appearance, the defendant "didn't look like she was about to give birth to me." The judge added, "I understand she is a small woman. That does indicate certain other things. I'm not a doctor or anything."

In May, prosecutors provided the judge with a pre-sentencing report detailing the defendant's cooperation. The report revealed that the defendant had continued to use drugs, but said that she had fulfilled the plea bargain and should receive a sentence of probation. Berkman ultimately refused to dismiss the felony indictment and sentenced the defendant to three years plus three years of post-release supervision—longer than the 30-month and one-year sentences given to the people who actually sold the drugs while the defendant was acting as lookout. In dismissing the indictment and reducing the sentence to time served, Tom first acknowledged that plea agreements are not necessarily binding on courts. However, he wrote, a "defendant who has 'performed services for the prosecutor, at risk to himself,' absent 'compelling reasons' is entitled to 'receive the benefit of his bargain' through specific performance of the plea agreement," quoting People v. Danny G., 61 NY2d 169, 175-76 (1984). Tom said that Berkman's view that she had not been kept apprised of the defendant's status, even if true, was not a compelling reason to reject the plea bargain because "defendant should not be penalized for the People's purported shortcomings in this regard." He also said that the defendant's continued drug use was irrelevant to her fulfillment of the plea bargain.  The court's main concern, he wrote, should have been "concern that a defendant who has performed services for the prosecutor, at risk to himself, be treated fairly," again quoting People v. Danny G. Finally, Tom wrote that Berkman had been openly unfair to the defendant.  "During the proceedings, the court exhibited hostility, even disdain, toward defendant and, more importantly, a total disregard for her safety and welfare relating to her role as a drug informant for the District Attorney's office," he wrote.  He called Berkman's decision to give the defendant a longer sentence for acting as a lookout than her two accomplices received for selling drugs "especially jarring."  "The picture, as a whole, portrays a gross miscarriage of justice," he wrote.  "I'm very pleased about the decision," said Robert Dean of the Center for Appellate Litigation, who represented the defendant.  Manhattan Assistant District Attorney Susan Gline argued for the prosecution. An office spokeswoman declined to comment.  Brendan Pierson can be contacted at bpierson@alm.com.

Lawyer Pleads Guilty to Fraud After Targeting FBI with Bogus Lawsuit

Lawyer pleads guilty to fraud after targeting FBI with bogus lawsuit
The New York Post by Todd Venezia and Josh Saul  -  April 25, 2012
This guy must be a partner in the firm of Dumb & Dumber.

A knuckleheaded New York lawyer pleaded guilty today to healthcare fraud, after he brazenly tried to target the FBI in a bogus injury lawsuit, officials said. Lawyer Jeffrey Squitieri, 45, apparently noticed nothing suspicious when a new client came to him saying he’d been involved in a wreck with a car that had been rented by the bureau. That “client” turned out to be an undercover officer conducting a fraud investigation into Squitieri’s sleazy accident claim operation. The Manhattan attorney allegedly flunked gangster 101 by failing to realize his client might have really been law enforcement, after his own check of the car’s rental record showed it was “hired” by the FBI. Despite this massive hint — which might have sent the average con-artist running for the hills — Squitieri would not be deterred from his greedy scheme, according to the Manhattan US Attorney’s office. The plot included ordering the undercover to get pricy and unnecessary medical treatment, such as MRIs. He then filed a $1 million claim against the FBI on behalf of the undercover. He was so brazen, that he even called the agency multiple times in June and July to inquire about the status of the case. “Some people have chutzpah – but with this guy it’s compounded by stupidity,” said Frank Scafidi, spokesman for the National Insurance Crime Bureau.  “The world of criminal behavior – you think you’ve seen it all,” he added. “Then you see something even more heinous – or in this case, laughable.” The probe began in January 2011, when the undercover was introduced to the shady lawyer by an employee of a medical clinic, which was allegedly in cahoots with him.  Squitieri, of Englewood Cliffs, NJ, allegedly told the officer that he had to make as many visits to the clinic as he could in 90 days and get MRIs on his back and neck.  He allegedly said that if the agent played ball with the scam he would get rich.  “If you do what I tell you to do I’ll make you money,” he said in a recorded telephone call, according to a criminal complaint. “Go ahead and you play and . . . I’m gonna get you set up for a procedure and make you money.” Squitieri allegedly tried to get the undercover to get chiropractic procedures such as manipulation under anesthesia, which the feds said can “drastically increase the size of the insurance claim and/or lawsuit.” Squitieri, who was disbarred on unrelated issues, filed suit against the FBI in 2011. He faces up to three years behind bars when he is sentenced. Despite his failure to sense the law officers were on to him, Squitieri was actually paranoid about police, said a doorman at the building that housed his law offices.  “He was the biggest trouble maker of the 2000 residents here,” said Armind Jata. He was always afraid, he called down all the time because he thought police were looking for him.”

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Disbarred Lawyer Pleads Guilty to Defrauding Health Provider
The New York Law Journal by Mark Hamblett  -  April 26, 2012

A now-disbarred attorney who was caught coaching an alleged auto accident victim to commit health insurance fraud pleaded guilty yesterday in federal court in Manhattan.  Jeffrey Squitieri, 45, didn't know he was talking to an undercover agent posing as an accident victim when he urged the agent to make multiple doctor visits and undertake unnecessary medical procedures at a Bronx clinic in 2011.  Yesterday, Squitieri entered a guilty plea to a single count of conspiracy to defraud a health care benefit provider. He had little choice, as investigators caught him on tape in 2011 aggressively urging his "client" to boost the value of his insurance claims by having multiple MRIs and other procedures at the clinic.  "I knew at the time what I was doing and that it was wrong and illegal," Squitieri told Southern District Magistrate Judge James Cott.  Squitieri, of Englewood Cliffs, N.J., was introduced to the undercover agent by an employee of a health care clinic in January 2011. The lawyer told the undercover to make as many visits to the clinic as possible, as many as three or four times a week. Squitieri said that as the lawyer he would get one-third of whatever reimbursements the undercover received.  In March 2011, Squitieri was recorded on the phone with the agent saying, "You have to do your end of the [expletive] job here"; "help me help you"; and "just get the MRIs done." But Squitieri did not know that he was dealing with an invented accident and police report fabricated by investigators. According to the government, after he learned from the invented report that the "accident" involved a rented car, he called the rental agency and was told the vehicle had been rented to the FBI.  Squitieri proceeded to file a $1 million claim against the agency, which is self-insured. He followed up over the next few months by calling the FBI Legal Unit to ask about the status of his claim.

Under a plea agreement with the Southern District U.S. Attorney's Office, Squitieri, faces a stipulated sentencing guidelines range of 2 1/2 to three years and one month when he is sentenced by Judge William Pauley on Aug. 24.  Squitieri is a recovering alcoholic who was disbarred in New York by the Appellate Division, First Department, in September (NYLJ, Sept. 9, 2011).  Before the First Department, he admitted to bookkeeping violations, neglect of a client matter and converting funds from an escrow account. He offered as a defense that his judgment was marred by alcoholism and psychiatric disorders triggered by a divorce and claimed he lacked the "venal intent" to support the charges.  But the First Department said Squitieri, who had practiced in New York since 1997 and had an office on the Upper East Side, failed to show "a sufficient causal connection between his mental condition and his conversion of client funds to support a finding that he lacked venal intent."  The panel in Matter of Squitieri, M6050, said some of the acts Squitieri committed during his period of alcoholism and impaired mental health, like "a check kiting scheme," were "inconsistent" with the opinions of mental health experts that Squitieri could not make intelligent decisions.  Squitieri has even more trouble in New Jersey, where he has been suspended from practice since Feb. 18, 2011.  An ethics complaint filed on May 11, 2011, accused him of misappropriation of client settlement monies and hindering an investigation by the Office of Attorney Ethics by providing altered copies of bank records.  Squitieri allegedly settled without authority a personal injury case for $100,000 on behalf of Guillermo Henao, who suffered a severe head injury and multiple fractures when he was hit by a car in front of his apartment building in 2009.

Last month, Superior Court Judge Charles Powers in Bergen County entered a $2,578,200 default judgment against Squitieri in Henao v. Squitieri, BER-L-11400-10. In the suit, the Henao family alleged their 24-year-old son, Victor, without authority, signed a retainer agreement on behalf of his then-comatose father.  Then, sometime in December 2009, with Guillermo Henao out of his coma but still incapacitated, Squitieri allegedly persuaded Victor to sign a release settling the case for the driver's $100,000 policy limit. Squitieri is accused of keeping $88,000 of the proceeds.  The family also charged the lawyer failed to pursue $250,000 in "personal injury protection" benefits, leaving the family unable to pay for Henao's care and forced the premature end to his in-patient rehabilitation. The lack of money also exposed Henao to a collection suit and possible eviction from his apartment.  The $2.6 million in damages is made up of $328,200 in economic damages, $750,000 for pain and suffering and $1.5 million in punitive damages. Squitieri filed a motion on April 11 to vacate the New Jersey judgment.  In the Southern District, Squitieri was represented by James Roth of Hurwitz Stampur & Roth. Both men declined to comment as they left the courtroom yesterday.  Assistant U.S. Attorney Harris Fischman represented the government in United States v. Squitieri, 12 cr 00102.  Southern District U.S. Attorney Preet Bharara said in a statement that investigation of Squitieri was conducted by the joint health care fraud task force involving the FBI, New York Police Department and the New York regional office of the National Insurance Crime Bureau.  "Jeffrey Squitieri had a novel and corrupt concept of what it meant to zealously represent his legal clients," Bharara said. "He used them to perpetrate a fraud on the health care industry by encouraging, and even badgering them into scheduling multiple, unnecessary doctor visits and medical procedures at a clinic with which he was colluding."  Mark Hamblett can be contacted at mhamblett@alm.com. Mary Pat Gallagher of the New Jersey Law Journal contributed to this report.

State Appeals Court Judge Arrested on DUI Charges

Appeals court judge arrested on DUI charges
WSMV/NBC by Dennis Ferrier  -  April 24, 2012

KNOXVILLE, TN (WSMV) - A Tennessee Court of Criminal Appeals judge, who works in Nashville, was arrested Monday night on driving under the influence charges in Knoxville. Officers said they spotted Judge Jerry L. Smith driving a car that had its trunk open with luggage about to fall out. When officers pulled Smith over, they said he smelled of alcohol, had slurred speech and couldn't perform a sobriety test. Smith was appointed in 1995 to the Court of Criminal Appeals. Before that, he worked as the deputy state attorney general. As a criminal court of appeals judge, Smith could very likely hear appeal cases involving DUIs, and for that reason alone some judicial reformists say Judge Smith should step down. "The prosecutor is very conflicted in this case. He has got to prosecute other DUI cases that could be appealed to his very courtroom," said Janice Johnson, a judicial reformist and lobbyist. But the Tennessee Supreme Court told Channel 4 that even if convicted, Judge Smith would still be allowed to hear cases. Any judge convicted of any misdemeanor in Tennessee is not barred in any way. Janice Johnson says Judge Smith should be removed by the one entity in Tennessee that has the power to do so.  "A DUI is minor, however, judges should be held to a higher standard. The question is who holds them to a higher standard. And the answer is our legislature is supposed to hold them to a higher standard," Johnson said. "The problem is our legislature does not have the political will to do so."  It should be noted that the Tennessee legislature hasn't removed a judge in 18 years, and it is an action that almost never happens.

Wednesday, April 25, 2012

Attorney's Flagrant Disregard for Clients Gets Reprimand

Circuit Reprimands Immigration Attorney for Ignoring Cases
The New York Law Journal by Mark Hamblett  -  April 25, 2012

An immigration lawyer has been publicly reprimanded by a federal appeals court for misconduct because his failure to meet briefing deadlines and other scheduling requirements forced the dismissal of 10 cases.  The U.S. Court of Appeals for the Second Circuit yesterday adopted a grievance committee report that said Lawrence Spivak had dropped the ball in 10 cases and blamed his clients in nine of them. In some of the cases he offered the unacceptable defense that the appeals were unlikely to succeed.  Spivak, a solo practitioner in Jackson Heights and Jamaica, Queens, also took referrals from clients for $500 but never met with them, the court said in In re Lawrence Spivak, 10-90006-am.  But Spivak also persuaded the circuit's Committee on Admissions and Grievances that he should only be reprimanded because of mitigating factors, including that a suspension would devastate his practice.  The Second Circuit adopted that report and issued the reprimand by summary order yesterday.  "I reviewed the order and I intend to comply with all the requirements of the order and take all the corrective steps the Second Circuit is requiring me to take," Spivak said in an interview.

A graduate of Hofstra University School of Law who has been in practice since 1987, Spivak appeared on Nov. 10, 2010, before the committee composed of Eileen Blackwood of Kohn Rath Blackwood &   Danon in Hinesburg, Vt.; Evan Davis of Cleary Gottlieb Steen & Hamilton; Gerald Walpin, formerly of counsel at Katten Muchin Rosenman; and Michael Patrick of Fragomen, Del Rey, Bernsen & Loewy.  The committee report states that Spivak's practice in 2007 was 60 percent immigration, with the remainder real estate and general civil litigation. By the time of the 2010 hearing, his practice had shifted to 90 percent real estate and 10 percent immigration.  Spivak specialized in family-based petitions, especially filings to the U.S. Consulate in Bangladesh, removal defense and federal appeals.  He told the committee he lost 10 Russian clients in 2007, a blow to his practice that also consumed time because of his need to transfer files. He also told the committee that family problems, including the health of his wife, put increasing pressure on his time. But he admitted that a "procrastination problem" contributed to him missing several deadlines on appeals, even after securing extensions.  "There is no doubt that the record shows a disturbing pattern of inattention to deadlines, negligence and cavalier attitudes towards the Court's orders and procedures that are wholly inconsistent with the expectations attached to an attorney practicing before this, or any Court," the committee wrote.  The committee weighed mitigating factors, including the most "compelling" factor of family problems, as well as the fact that Spivak did not gain personally from his failure to meet the scheduling orders, he had made efforts to wind down his Second Circuit practice, and he was implementing a new calendar system in his office and had hired a part-time assistant.  The committee also took note of the impact a more severe sanction could have had on Spivak, as it quoted a supplemental response he filed in December 2010.  Spivak, the committee said, "also makes clear that even a short-term suspension 'would have devastating, long-term effects upon my practice and my personal life,' as he would likely lose the majority of his clients and would not have the financial wherewithal to sustain his household while attempting to re-build his law practice."

The most serious aggravating factor for the committee was Spivak's "flagrant disregard for his clients, or, more frankly, the fact that he does not view many of the subjects of the appeals as 'clients' because they were referred to him."  Also aggravating was the fact that many of Spivak's clients were facing deportation and he was well aware of their "vulnerability." He also had prior disciplinary troubles, including three other complaints filed against him in New York state.  In recommending the sanction, the committee said it "was greatly influenced by both his candor and the difficulty in his family life and sympathetic to his plight [TEXT REDACTED]. Mr. Spivak's inability to practice law would leave him destitute, unable to support his spouse and their son and daughter."  In their summary order, Second Circuit Judges Jose Cabranes, Robert Sack and Richard Wesley agreed with the committee that a likelihood of failure on some of the appeals is no excuse.  "We also agree with the Committee's admonition to Spivak that prejudice to a client is not 'limited to those cases in which a certainty or even probability of success is found,' and its finding that prejudice resulted 'when, due to Mr. Spivak's conduct, his client (without the client's written consent or approval) was deprived of the full opportunity to have the Court consider the merits of his appeal,'" the Second Circuit said.  The panel also agreed that the "mitigating factors in this case are significant enough to warrant reprimand rather than suspension."  The court said Spivak must disclose its order and the committee's report to "all courts and bars of which he is currently a member."  Michael Zachary is counsel to the grievance panel.  Mark Hamblett can be contacted at mhamblett@alm.com.

Battle Over Accurate Court Docs Continues

MERS, Banks Call A.G.'s Suit Factually, Legally Deficient
The New York Law Journal by Andrew Keshner  -  April 25, 2012

MERS and several banks who were sued by New York's attorney general for allegedly initiating faulty foreclosure actions have struck back in the high-profile litigation by strongly defending their practices and discounting the office's assertions as factually and legally deficient.  In February, Attorney General Eric Schneiderman sued MERS—Mortgage Electronic Registration Systems—and several major banks and mortgage servicers, including JPMorgan Chase, Bank of America and Wells Fargo. The action contended the defendants' use of the MERS system resulted "in the filing of improper New York foreclosure proceedings, undermined the integrity of the judicial process, created confusion and uncertainty concerning property ownership interests, and potentially created clouds of title on properties" across the state (NYLJ, Feb. 6).  Defendants fired back on April 20, seeking dismissal of the suit and claiming that their practices—such as having MERS commence a foreclosure or using a private registry to track loan ownership rights—were not deceptive and stressed that the attorney general never pointed to a single case where an action was initiated against a homeowner who was not in default.  Defendants argued the attorney general's claims fell outside the scope of General Business Law §349(b), the statute outlawing deceptive business practices, and Executive Law §63(12), the law empowering the office to take action against "repeated fraudulent or illegal acts" in business.  Furthermore, the defendants said, the office's claims were barred by the separation of powers and res judicata doctrines, along with the absolute privilege for statements made in litigation.  "In disregard of settled law, the Attorney General seeks to recast lawful, privileged conduct of a party to litigation, in the course of litigation, as fraudulent and deceptive trade practices," MERS wrote in People v. JPMorgan Chase, 2768-2012.  MERS and the servicer defendants made many of the same arguments in their respective court papers but joined each other on any arguments not made in their own briefs.  The case has been assigned to Brooklyn Supreme Court Justice David Schmidt and the attorney general's response is due June 22.

Last month, JPMorgan Chase, Bank of America and Wells Fargo, along with other entities who are not defendants in the state's suit, reached a settlement with the attorney general's office in which they agreed to pay a combined $25 million in relation to foreclosure practices. But the agreement preserved the attorney general's claims for injunctive relief and his effort to recover for damages sustained by New York homeowners in allegedly faulty foreclosures. The banks neither admitted nor denied deceptive practices through their use of MERS. (NYLJ, March 15)  The state's suit focuses on the use of MERS in foreclosure actions. MERS, created by firms and entities in the real estate mortgage industry, operates a private registry that monitors ownership of mortgage loans and servicing rights.  Acting as the mortgagee of record, the registry allows members to bypass recording fees when mortgages change hands because MERS remains the mortgagee of record.  MERS has filed more than 13,000 foreclosures against New York homeowners, naming itself as the foreclosing party, though the company stopped the practice last summer.  The company appoints certifying officers among the employees of its member companies to execute paperwork for foreclosures and mortgage assignments, among other tasks.  The attorney general's suit contends that MERS lacked standing to bring many foreclosure actions because it did not have the promissory note.  The suit claims that MERS' own rules required the note to be endorsed and held by a certifying officer, but that those rules were not followed.  MERS in its court filings countered that the attorney general could not point to one example of a foreclosure action initiated by MERS where it did not have standing to sue. The defendants said that even in "some unspecified instances" where MERS was not the note-holder when it started the foreclosure, it was "at a minimum, an authorized agent of the holder and had the authority to foreclose."  The attorney general took aim at MERS mortgage assignments to the foreclosing party that it claimed had "numerous defects, including affirmative misrepresentations of fact, which render them false, deceptive, and/or invalid."  The lawsuit claims mortgage assignments and requisite affidavits of merit were submitted to courts without review for accuracy and notarized outside the presence of a notary. MERS certifying officers also "repeatedly" executed retroactive mortgage assignments filed after the foreclosure commenced, the suit said.  "The Attorney General alleges no authority for the proposition that a mortgage assignment must conform to any of these requirements, and there is none," MERS replied, adding that the attorney general did not plead facts that the claimed robosigning was unlawful or fraudulent.  The attorney general contended that through its private database tracking ownership interests, MERS "effectively eliminated the homeowner's and the public ability to track property interest transfers through the traditional public records system."  But the defendants stress in their response that the purpose of the state recording law was to protect purchasers by revealing prior encumbrances. "To the extent that the Attorney General's claim is premised on the need for transparency with respect to the ownership of a note, the land records do not provide (and have never provided) information to a borrower (or anyone else) regarding the holder of the note. A note does not represent an interest in real property—rather, it evidences debt that may be secured by a mortgage—and therefore does not fall within the scope of the Recording Act at all," the servicer defendants wrote.  MERS is represented by partners Joanna Hendon and Robert Brochin of Morgan, Lewis & Bockius, along with associates David Snider and Benjamin Weinberg. Debevoise & Plimpton partners Andrew Ceresney, Mary Beth Hogan and associate Philip Fortino appeared for JPMorgan Chase.  Hogan Lovells partners David Dunn and Ira Feinberg are counsel to Wells Fargo.  Bank of America is represented by partners Richard Strassberg and Joseph Yenouskas, and associate Maryana Zubok, of Goodwin Procter.  A MERS spokesman and a Wells Fargo spokeswoman declined to comment. JP Morgan Chase and Bank of America did not immediately respond to a request for comment.  A spokesman for the attorney general said the office is reviewing the briefs, but declined to comment further.  Andrew Keshner can be contacted at akeshner@alm.com.

Judge Corrects "judge's" Student Loan Decision

ALJ's Errors Win Lawyer a New Hearing on Student Loan Repayment
The New York Law Journal by Joel Stashenko  -  April 25, 2012

A lawyer has won her bid for a new student loan repayment hearing after a state judge determined that her initial proceeding was rife with errors made by an administrative law judge.  Manhattan Supreme Court Justice Alice Schlesinger found that the ALJ appeared to lose control of the 2009 hearing and made the "shocking" pronouncement that the attorney, Marisa Rieue, owed $108,376, including principal and interest, in unpaid loans in the absence of concrete evidence to support that conclusion.  "A review of the hearing transcript reveals that it would be a waste of judicial resources and improper to transfer this case to the Appellate Division based on substantial evidence because the record is barely comprehensible and defective in countless ways," Schlesinger wrote in Rieue v. New York State Higher Educ. Servs. Corp., 107745/09.  She added, "While the rules of evidence are not strictly applied in administrative proceedings, the hearing must be conducted in an orderly fashion so that it is fundamentally fair, and all exhibits offered into evidence must be appropriately authenticated and explained by a proper party, with evidentiary foundations established where appropriate."  Rieue, who once worked in the litigation bureau of the state Department of Law, has an unpublished phone number and could not be reached for comment.  Schlesinger found that the administrative law judge, Richard Di Stefano, allowed the counsel for the Higher Education Service Corp. (HESC) to introduce a "pile of documents" and then let the counsel attest to the significance of the materials without corroborating evidence or testimony about their veracity.  "Counsel for HESC did not call a single witness to explain the agency's practices and procedures with respect to the purchasing and collection of student loans," Justice Schlesinger wrote. "Records were not marked individually as exhibits or explained in a detailed fashion. Instead, counsel referred to the exhibits as this document and that without giving a description for the record that might permit reasonable cross-examination by the petitioner or judicial review by this Court or the Appellate Division."  At the heart of the contention by Rieue is that she made a $65,000 payment to the Hemar Insurance Corporation of America in 2003 in satisfaction of the student loan that she initially secured from the federal lender Sallie Mae.  According to Justice Schlesinger's ruling, the attorney for Higher Education Service acknowledged the apparent authenticity of the $65,000 check written by Rieue at the 2009 hearing. But the agency argued that it never authorized Hemar to act on its behalf to collect the loan before Higher Education Service purchased the obligation in 1996 and that it has no internal verification that Rieue, in fact, had paid the money, the judge ruled.  Schlesinger said it appeared that Rieue had produced "numerous" documents indicating that she had paid her student loan obligation in "full satisfaction…some years ago."  The judge said the record indicates a confused proceeding in which neither Rieue, who represented herself, nor Higher Education Service were able to coherently argue their cases.  "The transcripts read as a back and forth colloquy, with one person repeatedly interrupting the other with an ever increasing tone of frustration," Justice Schlesinger wrote. "The ALJ made only limited, and highly unsuccessful, efforts to create order or develop a clear record for review."  The hearing concluded, Schlesinger noted, with the agency attorney saying he had not known about the $65,000 payment or the canceled check until he got to the proceeding before Di Stefano.  "This is a whole other spin on the entire situation that I've only just learned about," the lawyer said, according to the ruling. He promised to look into the situation.  But Schlesinger said Di Stefano made the "shocking statement" a month after the May 14, 2009, hearing in a ruling that contained what the judge said was a "total disconnect" from what she read in the record.  Higher Education Service "has established for the record" that Rieue "owes $108,376.39 with a fixed interest rate of 9.00" percent, Di Stefano wrote. "Appellant has never contended that her indebtedness is incorrect."  Schlesinger said that conclusion flew in the face of what was said at the hearing.  "Contrary to this conclusion, Ms. Rieue had vigorously disputed the claimed indebtedness at the hearing, insisting that she had paid the amount in full and producing a copy of a cancelled check to confirm her assertion," the judge wrote. "HESC's counsel at the hearing promised to investigate the payment and the ALJ agreed that such action was appropriate. Yet the ALJ made no mention at all of this discussion in his decision."  Schlesinger noted that Rieue has secured pro bono counsel and said a new hearing should proceed "in accordance with proper procedures."  Di Stefano, of Di Stefano & Di Stefano in Albany, did not return a call for comment. HESC did not return a call.  Joel Stashenko can be contacted at jstashenko@alm.com.

Tuesday, April 24, 2012

Disbarred NY Lawyer Faces NJ Charges of Forging Client's Authorization

Lawyer on the Ropes for Faking Client's Settlement Authorization, Keeping Funds
The New Jersey Law Journal by Mary Pat Gallagher  -  April 17, 2012

A lawyer already disbarred in New York for taking client funds and facing similar ethics charges in New Jersey has been hit with a $2.5 million judgment for settling a personal injury case without authority and keeping part of the proceeds.  The lawyer, Jeffrey Squitieri, has moved to vacate the judgment, entered March 19 by Bergen County Superior Court Judge Charles Powers Jr.  According to the suit, Henao v. Squitieri, BER-L-11400-10, Squitieri was hired to handle a personal injury case for Guillermo Henao, who allegedly suffered severe closed-head injury and multiple fractures when he was hit by a BMW in front of his Englewood apartment building on Nov. 1, 2009. While Henao was hospitalized and comatose, his 24-year-old son Victor signed his father's name to the retainer agreement without authority to do so. Around December 2009, with Henao recently out of his coma, Squitieri got Victor to sign a release settling the case for the driver's $100,000 policy limit and falsely certified that he saw Henao sign.  The family thought Victor was signing for medical coverage, says Henao's present lawyer, Trenton solo Patrick Whalen. Henao allegedly could not have signed the release because he was mentally incompetent at the time and unable to speak or read English, and no interpreter was present. Squitieri then allegedly kept $88,000 of the settlement proceeds, paying the other $12,000 to Care One of Wellington, where Henao spent a month in rehabilitation.  Squitieri "was in such a rush to get a hold of these settlement funds" because he was under investigation and facing disbarment in New York, where he kept his primary office, and needed money to defend the charges, the suit charges.  Squitieri also allegedly failed to pursue about $250,000 in PIP benefits from Henao's own carrier. That, combined with the theft of the settlement monies, left the family unable to pay for Henao's care, put a premature end to his in-patient rehabilitation and exposed him to a collection suit by Care One and to possible eviction due to the inability to pay rent, according to Whalen.  When the family hired Whalen, he demanded that Squitieri turn over the rest of the money and the case file but never received either.  The family sued Squitieri and his solo firm in November 2010, alleging malpractice, fraud, intentional infliction of emotional distress and other claims.  They also filed an order to show cause for an injunction freezing Squitieri's bank accounts and other assets. Superior Court Judge Robert Polifroni granted the request on Jan. 18, 2011, and required Squitieri to disclose any malpractice insurance covering the claims.  Polifroni also gave Squitieri until Jan. 21, 2011, to turn over the rest of the settlement money to his lawyer, Gregory Irwin of Harwood Lloyd in Hackensack, to be held in the firm's trust account, and to surrender the Henao case file and all relevant trust account records. Squitieri failed to comply, leading Whalen to seek a default and then a final default judgment, signed by Powers on March 19. The $2,578,200 judgment consists of $328,200 for economic damages, $750,000 for pain and suffering and $1.5 million in punitive damages. Squitieri moved to vacate the judgment on April 11, on the ground that Henao was out of the coma and able to authorize the settlement.  That same day, the plaintiffs filed a motion to add Squitieri's father, Generoso, to the case as a defendant, on the ground that he allowed his son to use his Fort Lee office for client meetings and for dropping off papers.  "You let somebody operate out of your firm that clearly should not be handling other people's money," Whalen says of Generoso Squitieri.  Both motions are scheduled to be heard April 27.  Neither Squitieri could be reached for comment.  Irwin, who stopped representing Squitieri before the default hearing, did not return a call. Whalen says Irwin told him Squitieri had no malpractice coverage for the case. The accounts frozen by Polifroni had already been closed, Whalen adds.

Attorney Arrested for Recording Cops in Public Receives $170,000

Attorney arrested for recording officers in public receives $170,000 in settlement with City of Boston
RCFP.org by Haley Behre  -  March 27, 2012

A Massachusetts attorney arrested for using his cellphone to record police officers while they arrested a man in public received a $170,000 settlement for damages and legal fees from the City of Boston on Monday.  As part of the settlement, Simon Glik agreed to withdraw his appeal to the Community Ombudsman Oversight Panel to investigate the Boston Police Department's Internal Affairs Division who he said treated him dismissively when he filed a complaint after he was arrested, according to a press release by the American Civil Liberties Union of Massachusetts, which provided legal assistance to the attorney.  “It is a significant amount of money,” said David Milton, Glik's attorney, adding that his client incurred a large amount of legal expenses because the “city fought this case tooth and nail all the way up to the First Circuit," the federal appellate court with jurisdiction over federal trial courts in Massachusetts.  The settlement follows a decision last August in which the U.S. Court of Appeals in Boston (1st Cir.) ruled that the First Amendment protects the right to record police officers in the public performance of their duties.  This case is important because of a number of incidents in recent years wherein citizens are being arrested for recording police officers carrying out their official duties in public, Milton said.  The First Circuit's opinion provided “a detailed analysis rooted in the history and purposes of the First Amendment of why recording police is what they call a ‘basic, vital and well-established liberty safeguarded by the First Amendment,’” Milton said, quoting the opinion in Glik v. Cunniffe.  The Massachusetts wiretapping statute, which prohibits secret audio recording, is the statute Glik allegedly violated when he was arrested in October 2007 for recording police officers as they arrested a young man on the Boston Common. Glik was also charged with aiding an escape and disorderly conduct.  All three charges were eventually dropped, but Glik filed a federal civil rights suit against the city and the arresting officers for allegedly violating his First and Fourth Amendment rights. The officers moved to dismiss the complaint, claiming they were entitled to qualified immunity on the charges because it is not well-settled that Glik had a constitutional right to record the officers. The U.S. District Court in Boston denied the officers' motion, and the First Circuit affirmed that decision.  In January, after defending the officers' actions for four years, the Boston Police Department admitted that the officers who arrested Glik in 2007 for recording them used "unreasonable judgment."  “It is important that citizens be able to record police acting in public so that the police can be held accountable for their actions,” Milton said. “As we see all around the country and world, images captured from people’s cellphones can have a remarkably important effect on public debate of public information. It is ultimately a tool of democracy.”  City officials could not be reached for comment.

Walmart Scandal Points to U.S. Corruption Hypocrisy

Walmart Scandal in Mexico Points to U.S. Hypocrisy 
The Daily Beast by John M. Ackerman  -  April 23, 2012
The Walmart bribery scandal is a fresh example of the U.S. double standard toward its southern neighbor. John M. Ackerman on the latest cross-border outrage. 

The real scandal is that the Walmart Mexico corruption exposé does not come as a surprise. Constant controversy has marked Walmart’s rapid expansion in Mexico over the last 15 years. One of every five Walmart stores is now south of the border, and the company reported total sales of US$29 billion in the country during 2011. Last year alone, it opened 365 new stores in Mexico. But there are constant allegations that most profits are expatriated or hidden through sophisticated accounting schemes in order to avoid paying taxes to the Mexican government. This has been confirmed by studies conducted by both the Mexican Chamber of Deputies and the company’s own internal investigation. Walmart also pays miserable wages, employs an army of unpaid “baggers” at its checkout lines, and has been accused of widespread violation of labor laws. The company establishes few backward linkages with Mexican manufacturers, since the vast majority of the products it sells originate in the United States. Its recent growth also puts at risk the Mexican tradition of street markets, which date back to the times of the Aztecs and Mayans. The company has even been accused of interfering with archeological sites, for instance in Teotihuacan in central Mexico.

The fact that Walmart has also paid more than $24 million in bribes to Mexican officials, according to The New York Times’s account, is therefore more of the same. Walmart has claimed that it is “deeply concerned” by the allegations and is “working aggressively to determine what happened.” But there is no reason to think that this is an isolated incident. Sunday’s exposé demonstrates that Walmart has not taken any measures to stop the wrongdoing and that, seven years later, absolutely no one has been punished for the criminal acts. The corruption was probably even more widespread than we know, and similar practices most likely continue today as Walmart still expands at a death-defying pace in Mexico. Both the U.S. and Mexican governments should immediately initiate a full-scale and wide-ranging investigation of the practices and impact of Walmart in Mexico. In addition to strict enforcement of the Foreign Corrupt Practices Act and investigations by Mexican state and local comptroller and attorney general’s offices, both countries should also push to activate the Organization for Economic Cooperation and Development Convention on Combating Bribery of Foreign Public Officials, as watchdog groups have requested.

Once again, south of the Rio Grande, the same standards of ethics simply do not apply. Pedestrians walk past a Walmart store in Mexico City, Bernardo Montoya, Reuters / Landov One of the most disturbing aspects of the scandal is that the illegal practices most likely would not have received the same treatment if committed on U.S. soil. “It’s a Mexican issue; it’s better to let it be a Mexican response,” said one of the informants, summarizing the thinking of Walmart executives. The implication is clear: there is no need to apply high standards of honesty and accountability when dealing with “backward” or “underdeveloped” nations. It is better to profit from lawlessness than to uphold the rule of law. This type of double standard is unfortunately typical of dealings by U.S. corporations with their southern neighbor. For instance, the Justice Department recently fined an Oklahoma-based aeronautics company, BizJet, for bribing officials in Mexico’s federal Secretariat for Public Security in exchange for contracts worth at least US$24 million. At the height of the U.S. financial crisis, Wachovia bank was accused by authorities of laundering more than $378 billion dollars of drug proceeds through currency-exchange houses in Mexico. (Wachovia settled the charges, paying $110 million in forfeiture and another $50 million in fines; the case was never tried in court.) It was more important to avoid bankruptcy than to comply with the law and help stop the flow of money to organized death squads south of the border. The prostitution scandal involving U.S. Secret Service agents in Cartagena, Colombia, drives home a similar point. Sen. Joseph Lieberman has played down the incident, stating that the agents involved “were not acting like Secret Service agents. They were acting like a bunch of college students away on a spring student weekend.”

Once again, south of the Rio Grande, the same standards of ethics simply do not apply. The attitude of many U.S. observers toward the upcoming July 1 presidential elections in Mexico is tainted by a similar sort of hypocrisy. Instead of being cause for alarm, the possible return of the old-guard authoritarian Party of the Institutional Revolution, with presidential candidate Enrique Peña Nieto, is seen as a necessary and acceptable evil. Analysts are willing to ignore the party’s long history of corruption and economic mismanagement, as well as the obvious weaknesses of the candidate in terms of practical experience and intellectual capacity, in the interest of maintaining continuity in economic policies and the U.S.-led “drug war.” The principle lesson of the Walmart scandal is that it is time for the U.S. to change its attitude toward its southern neighbor. Instead of actively underdeveloping Mexico by tolerating illegality and mediocrity, the U.S. (its people, corporations, and government) needs to start to respect Mexico and Mexicans as equal partners in the construction of a new, more democratic, prosperous, and peaceful North America.

CLICK HERE TO READ RELATED STORY, "Big Corp's Issues With Corrupt Judges.... Outside U.S."

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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