Sunday, March 30, 2008

No More Nooses. Not Now. Not Ever.

Putting a noose on or near someone's property is a racist symbol of intimidation. And if the Connecticut State General Assembly continues on its current path, it will soon be a criminal offense.

On 25 March 2008, the Legislature's Judiciary Committee voted 43-0 in favor of a bill that makes it a hate crime to hang a noose on public or private property, without permission of the property owner, and with the intent to harass or intimidate.

Unfortunately, Connecticut has not been immune to such disgraces. In Stamford, several nooses were found hanging at a downtown construction site. In Greenwich, a noose was left dangling over a Hispanic supervisor's desk, by a Black employee, at the Connecticut Health of Greenwich nursing home on King Street. In Bridgeport, a police officer found a noose underneath her patrol car. At the U.S. Coast Guard Academy in New London, nooses were left for a Black cadet and an officer conducting race relations training last summer.

Most infamous was the incident in Jena, La., last year in which white students hung nooses from a tree and Black students were charged with beating a white youth. That led to nationwide demonstrations and a renewed understanding about hate crimes. It is not necessary to cause physical harm for such an act to be damaging.
Under the bill, someone found guilty of hanging a noose to intimidate could face a Class A misdemeanor, punishable by up to one year in prison, a $2,000 fine, or both.

This puts the act on a similar level with state law in regards to burning crosses for purposes of intimidation. Neither can be tolerated under any circumstances.

In a speech to mark Black History Month, last month, President Bush aptly described what the noose means in our history.

"Fathers were dragged from their homes in the dark of night before the eyes of their terrified children," he said. "Summary executions were held by torchlight in front of hateful crowds. In many cases, law enforcement officers responsible for protecting the victims were complicit in their deaths."

Surely there will be some misguided souls who'll say this is an overreaction, that most of those who leave nooses do so as pranks, or without realizing the oppressive reality of what the hangman's rope means in our country. If you know someone who feels that way, tell them to do a quick Internet search for images of nooses in America. They'll find plenty of examples of the "Strange Fruit" that Billie Holiday sang about: Black men dangling grotesquely from ropes, usually above a crowd of white people, including some with wide smiles on their faces, and including children.

Ignorance is no excuse. Putting up a noose is not a prank; it's a crime.

The unanimous approval in committee signals that this bill is likely to proceed out of the Legislature, and the governor should sign it when it reaches her desk. Statements that she made following some of the noose incidents in our state suggest that she will. The noose is a symbol of one of the darkest periods in U.S. history, and its use as a tool of intimidation must be punishable under the law. Increased penalties won't put a stop to such despicable acts, but they will help ensure that people pay a price for them.

Wednesday, March 26, 2008

All the Justice Money Can Buy.

Certain American values transcend partisan divisions. One is that money should not influence the courts. But with record sums pouring into judicial elections, the ideal of due process is giving way to a perception of pay-to-play justice.

Article II and Article III federal judges are appointed for life. Article III judges can only be removed through the impeachment process. Although there are no special qualifications to become a judge of these courts, those who are nominated are typically very accomplished private or government attorneys, judges in state courts, magistrate judges or bankruptcy judges, or law professors. The judiciary plays no role in the nomination or confirmation process.

Seventy-six percent of Americans believe that campaign contributions influence judicial decisions, according to a 2001-2002 survey by Greenberg Quinlan Rosner Research and American Viewpoint; 46% of state court judges agree, according to a written survey by the same organizations. Separate recent empirical studies in the New York Times and the Tulane Law Review support the proposition that contributions not only correlate with decisions, but alter them.

The citizens of 39 states elect some or all of their judges. These contests have become costly arms races. An investigation by the Los Angeles Times, "In Las Vegas, They're Playing with a Stacked Judicial Deck," revealed that even Nevada judges running unopposed collected hundreds of thousands of dollars in contributions from litigants. The report noted that donations were "frequently" dated "within days of when a judge took action in the contributor's case."

John Grisham's latest bestseller, "The Appeal," is a shadowy tale of a chemical company that buys a favorable legal ruling by funding the election of the judge who makes it. Farfetched? Not according to West Virginia Supreme Court Justice Larry Starcher. In a scathing opinion last month, he decried a "cancer" of moneyed influence in his court, asserting that "John Grisham got it right when he said that he simply had to read The Charleston Gazette to get an idea for his next novel."

Business interests and trial lawyers both lay out campaign cash to ensure that sympathetic judges are elected. Both sides attempt to manipulate courts; business just happens to be better at winning. The U.S. Chamber of Commerce got involved in 13 judicial races in 2004 and won 12. Nationwide in 2006, business donors contributed twice as much to state supreme court candidates as attorneys, according to the National Institute on Money in State Politics.

Consider three recent episodes in light of the American Bar Association's requirement that judges disqualify themselves whenever their "impartiality might reasonably be questioned."

Lloyd Karmeier, the winner of a $9.3 million campaign for the Illinois Supreme Court in 2004, was supported by $350,000 in direct contributions from employees, lawyers and others directly involved with the insurer State Farm and/or its then pending appeal, and by an additional $1 million from larger groups of which State Farm was a member, or to which it contributed. Almost immediately upon taking the bench, he cast a vote ending proceedings on a $456 million claim against State Farm. A St. Louis Post-Dispatch editorial put it this way: "Although Mr. Karmeier is an intelligent and no doubt honest man, the manner of his election will cast doubt over every vote he casts in a business case."

Wisconsin Justice Annette Ziegler declined, in December, to recuse herself from a case involving Wisconsin Manufacturers & Commerce, which spent $2 million -- more than her Ziegler's own campaign -- supporting her 2007 win. In light of that decision, as well as additional revelations that Justice Ziegler had ruled on 11 cases involving a company for which her husband was a director, editorials around the state called for her to step down from the case, and even from the bench. Not coincidentally, all seven of Wisconsin's Supreme Court justices, a broad majority of Wisconsin's public, and even a plurality of self-identified "very conservative" Wisconsin voters support public financing of judicial elections.

In November, West Virginia Chief Justice Elliot Maynard voted in a 3-2 majority to overturn a $76 million judgment against the companies of coal executive Don Blankenship. In January, photos surfaced depicting Messrs. Maynard and Blankenship vacationing in the French Riviera while the appeal was before the court.

The court is now reconsidering the case -- a dispute with mining companies on both sides. Justice Starcher, who criticized Mr. Blankenship's influence, disqualified himself and urged still a third justice, Brent Benjamin, to do the same. Justice Benjamin, whose 2004 campaign benefited from over $3 million of Blankenship's support, has refused to step down.

Justice Starcher (who asserts the actual amount of Blankenship's support for Justice Benjamin was $4 million) wrote bluntly: "Just think about it -- $4 million! I know hardly a soul who could believe that a justice who benefited to this extent from a litigant could rule fairly on cases involving that litigant or his companies."

In the long term, we all lose when any decision reinforces suspicions that the biggest donor, not the best case, wins. Reforms range from commission-based appointment systems, to publicly financed campaigns, to more rigorous recusal rules. Without such measures, stories like "The Appeal" will fill non-fiction shelves.

Federal judges abide by the Code of Conduct for United States Judges, a set of ethical principles and guidelines adopted by the Judicial Conference of the United States. The Code of Conduct provides guidance for judges on issues of judicial integrity and independence, judicial diligence and impartiality, permissible extra-judicial activities, and the avoidance of impropriety or even its appearance.

Judges may not hear cases in which they have either personal knowledge of the disputed facts, a personal bias concerning a party to the case, earlier involvement in the case as a lawyer, or a financial interest in any party or subject matter of the case.
Many federal judges devote time to public service and educational activities. They have a distinguished history of service to the legal profession through their writing, speaking, and teaching. This important role is recognized in the Code of Conduct, which encourages judges to engage in activities to improve the law, the legal system, and the administration of justice.

Friday, March 21, 2008

Jury Duty in not "FOR WHITES ONLY", Supreme Court says.

The Supreme Court of the United States ruled that keeping Blacks off the jury is gross error, even after the O J Simpson acquittal.
The Supreme Court ruled 7-2 on Wednesday, 19 March, that the trial judge in a Louisiana murder case — one that involved a prosecutor’s use of the O.J. Simpson case to try to help win a death sentence against a Black man — was reversible ERROR in rejecting a challenge to the denial of a seat to one Black juror. The removal of two Black jurors by prosecutors led to the seating of an ALL-WHITE jury trying a Black man for murder. His name was Allen Snyder. The Court’s decision was confined to the rejection of one of the two Blacks on the jury panel.

The ruling came in the case of Snyder v. Louisiana (06-10119). Although the case had gained prominence because it appeared to be "a test of the use of racially charged comments by prosecutors to win either convictions or death sentences when Blacks were on trial". In announcing its decision in the case, the Court did not mention the episodes in which the prosecutor referred to this as his ”O.J. Simpson case” to draw a parallel to Simpson’s prosecution, suggesting that there a Black man had gotten away with the murder of his wife Nicole Brown Simpson and Ron Goldman.

Justice Samuel A. Alito, Jr., wrote the majority opinion for the Supreme Court. Justice Clarence Thomas, joined by Justice Antonin Scalia, dissented.

The Court’s decision appeared to be a straightforward application of the 1986 decision in Batson v. Kentucky and sequels to it — decisions that barred race-based uses of automatic (”peremptory”) challenges in criminal trials. Justice Alito’s opinion, recited well established legal principles, but focused primarily upon the specific facts in prosecutor’s removal of a Black college student.The prosecutor tried to justify his exclusion of the Black man on reasons other than race. He said, the Black man appeared nervous. Then, he argued, that the young Black man had obligations as a student teacher.

Justice Alito and 7 of the 9 members of the Supreme Court saw that this was nothing more than an old trick in the hands of a new magician. These same techniques have been used in the South for years to exclude the few Blacks in the jury pool from serving on juries. Seven Justices decided that neither of those reasons justified the exclusion of the Black juror, Jeffrey Brooks.

Defense lawyers for Allen Snyder objected to the exclusion of Jeffrey Brooks, as well as to the removal of another Black juror, Elaine Scott. Justice Alito said that, because it was “clear error” on its face for the trial judge to reject the Batson v. Kentucky challenge to Jeffrey Brooks’ exclusion, there have no need to rule on Ms Elaine Scott’s removal and the defense attorney's objection to it.

Justice Clarence Thomas, the only Black member of the Supreme Court, in his dissent, contended that “none of the evidence in the record as to jurors Jeffrey Brooks and Elaine Scott demonstrates that the trial court clearly erred in finding that they were not stricken on the basis of race.” He appears to have set an unreasonably high standard for the Defense lawyers to meet in order to successfully challenge the exclusion of all of the Black jurors.

In Allen Snyder’s trial, there was a jury pool of 85, including nine Black potential jurors. The prosecution successfully excluded all nine; four were excluded for stated causes, and five were excluded for no reason at all. The Prosecutor simply used peremptory challenges. When using a peremptory challenge, a Prosecutor is not required to state any reason. He simply tells the court, "I do not want that person on the jury. I do not need to have a reason; and, if I do, I do not have to tell you." Only two of the five peremptory challenges used against 5 of the potential Black jurors were at issue in the 19 March 2008 ruling.

Sunday, March 16, 2008

Privacy From Peeping Toms and Other Public Officials.

Privacy. You won’t find the word in the Constitution. But the idea is some how associated with liberty. So Americans have come to expect some degree of freedom from government prying — and government protection from private snoops as well.
But such hopes get dashed. At least, in Oklahoma they do.
One Riccardo Gino Ferrante was arrested in 2006 for aiming a camera up a 16-year-old girl’s skirt, while in a Target store, and was convicted of a felony for his trouble. Unfortunately, four-fifths of Oklahoma’s Court of Criminal Appeals voted that no felony occurred.
Because “the person photographed was not in a place where she had a reasonable expectation of privacy.”
Now, it is quite true that being in a public place removes or at least significantly decreases one’s expectation of privacy. But ought that extend even to the private space within one’s clothing?
Well, the court answered the question in the affirmative. As Judge Gary Lumpkin wrote in his dissent, “In other words, it is open season for peeping Toms in public places who want to look under a woman’s dress.” Except for the private knuckle-sandwich penalty should the woman in question be related to me.
Government won’t protect civilized society, but we as individuals still can. And must. Otherwise skirt-wearing will become the sole province of women like Britney Spears and Lindsay Lohan.
The dissenting judge concluded that the majority’s ruling was “interesting and disturbing.” Nice blurb for an art house flick, but not for a judicial ruling.
The judiciary must be independent. But it should be independent of the other branches of government, not detached from common sense, or all semblance of sanity.
Meanwhile, in Washington State, non-skirt-wearing youngsters have just maintained a far higher degree of privacy.

In a tiny rural county in the Evergreen State, a public school had required random drug tests of its sports participants. Since not everyone wanted to pee for the privilege, the case quickly found its way to court. And on 14 March 2008, the issue was decided by the state’s Supreme Court. The state’s privacy guarantees nixed the program.Students have an expectation of privacy and to have their bodily fluids remain under their control.
There has to be reasonable suspicion to require drug tests, at least in Washington State.
Judge Richard Sanders wrote the majority opinion. It is certainly interesting:
The school district asks us to adopt a “special needs” exception to the warrant requirement to allow random and suspicionless drug testing. But we do not recognize such an exception and hold warrantless random and suspicionless drug testing of student athletes violates the Washington State Constitution.

1 Article I, section 7 of the Washington Constitution provides:
No person shall be disturbed in his private affairs, or his home invaded, without authority of law.

It will disturb many people, caught up in America’s war on drugs. But it does not disturb me.
Just as I would not want some Peeping Tom taking pictures up the skirts of my daughters, I would not want some local school forcing them to urinate into a cup simply to make it easier for school personnel to kick out a few drug abusers
But then, perhaps that’s why my children don’t go to public school. I have worries about not only the level of incivility in the student population, but the levels of lockstep regimentation enforced by administrators and teachers. (I also prefer my children receive a good education, but that is only tangentially related to the issue at hand. Or is it?)
Many people think random drug testing of children is a great idea, liberties and constitutions be damned. But then, many of those same people seem to think that random sobriety checks on roadways are peachy keen.

Call me crazy, but I prefer freedom. It is demonstrated criminal behavior that should warrant the intrusions of police power. Not mere generalized suspicion.
And let’s be quite frank here: random drug tests are there for only one reason, to inspire a general level of fear, with fear (it is publicly hoped)leading to abstinence from the use of prohibited drugs.
You may fear drugs so much that you want your kids to live like that. I don’t.
I have no problem with bad behavior on a student’s part being punished with expulsion. Indeed, I would insist on such a policy in any school my children were to attend. I would want my children protected. This is the proper way to handle such problems.
But such rationality is not found in most public schools, today. Thugs, sots and the merely stoned remain in classes, day after day, no matter how unproductive they may be, no matter how disruptive.
For some reason, though, the lovers of power keep lurching to policies that diminish the liberties of all rather than attack invasive behavior of the few.
It’s nice to know that, in Washington state, at least, “students do not ‘shed their constitutional rights’ at the schoolhouse door.”
It would be nice were a similar privacy right embedded in every state constitution. . . if for no other reason than common sense: it really does seem like a good idea to prevent Peeping Toms from surreptitiously snapping photos, upskirt, of women of any age.(Upskirt Invasions, Urinary Usurpations By Paul Jacob)

Friday, March 14, 2008

80 Year Old Green Beret Court Martialed.

80 Year Old Green Beret Court Martialed
Retired Green Beret shoots intruder, gets court Martial

An 80 year old, Retired Army Green Beret, Smokey Taylor received
his court martial this weekend and came away feeling good about it.

Taylor , at age 80 the oldest member of Chapter XXXIII of the Special
Forces Association, was on trial by his peers under the charge of
"failing to use a weapon of sufficient caliber" in the shooting of an
intruder at his home in Knoxville , TN , in December.

The entire affair, of course, was very much tongue in cheek. Taylor had
been awakened in the early morning hours of Dec. 17, 2007, when an
intruder broke into his home. He investigated the noises with one of
his many weapons in hand.

When the intruder threatened him with a knife, Taylor warned him, then
brought his .22 caliber pistol to bear and shot him right between the

"That boy had the hardest head I've ever seen," Taylor said after his
trial. "The bullet bounced right off." The impact knocked the would-be
thief down momentarily. He crawled out of the room then got up and ran
out the door and down the street. Knoxville police apprehended him a
few blocks away and he now awaits trial in the Knox County jail.

The charges against Taylor were considered to be serious. He is a
retired Special Forces Weapons Sergeant with extensive combat
experience during the wars in Korea and Vietnam . "Charges were brought
against him under the premise that he should have saved the county and
taxpayers the expense of a trial," said Chapter XXXIII President Bill
Long of Asheville . "He could have used a .45 or .38. The .22 just
wasn't big enough to get the job done."

Taylor's defense attorney, another retired Weapons Sergeant, disagreed.
He said Taylor had done the right thing in choosing to arm himself with
a .22. "If he'd used a 45 or something like that the round would have
gone right through the perp, the wall, the neighbor's wall and possibly
injured some innocent child asleep in its bed," he said. "I believe the
evidence shows that Smokey Taylor exercised excellent judgment in his
choice of weapons. He did nothing wrong, and clearly remains to
this day an excellent weapons man."

Counsel for the defense then floated a theory as to why the bullet
bounced off the perp's forehead. "He was victimized by old ammunition,"
he said, "just as he was in Korea and again in Vietnam , when his units
were issued ammo left over from World War II."

Taylor said nothing in his own defense, choosing instead to allow his
peers to debate the matter. After the trial he said the ammunition was
indeed old and added the new information that the perp had soiled his
pants as he crawled out of the house.

"I would have had an even worse mess to clean up if it had gone through
his forehead," Taylor said. "It was good for both of us that it didn't."

Following testimony from both sides, Taylor was acquitted of the
charges and was given a round of applause.

Meanwhile, back in Knox County , the word is out: Don't go messing with
Smokey Taylor . He just bought a whole bunch of fresh ammo.

Tuesday, March 11, 2008

Jury Nullification and the Lone Black Female.

It appears that the sole Black juror on a panel deadlocked along racial lines lied to win a seat on the jury and then set out to exact revenge on law enforcement by serving as the spoiler in the trial of an alleged drug chief serving as his own lawyer, some of her fellow jurors said Monday.

Jurors in the trial of Johnnie "Bro" Martin walked out of U.S. District Court with nothing to show for nine days of work but a mistrial.

"She made a mockery of the system," one juror said of the Black woman whom members of the panel said refused to even consider what the rest of the group believed was overwhelming evidence of Martin's guilt.

Although they declined to be publicly identified, jurors outraged over the outcome of a trial in which Martin's defense rested on the notion that racist law enforcers had framed him confirmed the panel had split 11 to 1 in every vote cast during the roughly four days of deliberations.

The lone hold-out was a Black woman who, when questioned during the jury selection process, assured federal prosecutors that she harbored no ill will over the imprisonment of her sister in a drug case. Asked if her sister deserved her fate, the woman answered, "Absolutely."

Fellow jurors interviewed after U.S. District Judge Thomas Phillips declared a mistrial said the woman lied.
"She never should have been on there in the first place," one juror said. "From the beginning, she kept saying her sister was in jail for selling drugs and the cops set her up, and she could not believe any police officer no matter what."

Prosecutors sought to remove the woman from the panel after learning that her daughter had been arrested on a marijuana charge by the police in 2006. She did not reveal that arrest, for which she posted bond, during the jury selection process.

Phillips refused, saying there was "no evidence of misconduct on the part of any juror in this case."
He noted the woman revealed her sister's drug conviction. He did not address, however, Plowell's complaint that the woman failed to reveal her daughter's arrest.

Instead, Phillips chastised the newspaper for reporting a racial division among the jurors.
"That's not what the note said," Phillips said of a message from the panel to the judge on Thursday in which jurors reported claims of racism were contributing to the deadlock.

The judge insisted that the note's statement that claims of racism had been raised during jury deliberations did not mean the panel was divided along racial lines.

"I would ask the newspaper to be accurate in its reporting," Phillips said from the bench.
Jurors, however, said the woman accused white members of the panel of being racist, prompting the note to Phillips.
"It offended me," one juror said.
The woman at issue refused comment when approached by a reporter and walked out of the courthouse alone. Fellow jurors followed minutes later as a group.

Martin, a convicted drug dealer from Boston,MA had opted to serve as his own attorney on charges he moved his drug-peddling network to Knoxville,TN and set up armed stash houses serving a smorgasbord of drugs ranging from $500,000 in cocaine every month to marijuana to Ecstasy. He also was accused of plotting to kill a key witness against him.

He insisted he was being framed by racist cops and lying "degenerates." The voice on secretly recorded phone conversations authorities said he had with various underlings was not his, he told jurors.

The lone Black juror on the panel bought into Martin's defense hook, line and sinker, fellow jurors said.
"You bring up the wiretaps and she'd say it wasn't his voice," one juror said. "She said the (alleged co-conspirators) were lying, and you couldn't believe the police officers. The whole time she talked about how unfairly her sister was treated."

The panel did find Martin guilty of one of 17 charges against him, deeming him guilty of being a felon in possession of an assault rifle. It was the sole charge not directly tied to the drug conspiracy.

"Anything that had to do with the drugs, she wouldn't even consider it," a fellow juror said.
Although prosecutors have 30 days to decide whether to retry him, Jennings announced in court he and Plowell would file formal notice today of their intent to seek a new trial.

Martin, who has boasted from the day of his arrest that he would win the case and openly taunted Jennings at an earlier hearing, remains jailed. As he was led out of the courtroom by the U.S. Marshals Service, Martin looked back at Jennings, smirked and said, "Checkmate."

Jury nullification refers to a rendering of a verdict by a trial jury, disagreeing with the instructions by the judge concerning what the law is, or whether such law is applicable to the case, taking into account all of the evidence presented. Although a jury's refusal relates only to the particular case before it, if a pattern of such verdicts develops, it can have the practical effect of disabling the enforcement of that position on what the law is or how it should be applied. Juries are reluctant to render a verdict contrary to law, but a conflict may emerge between what judges and the public from whom juries are drawn hold the law to be, or the legitimacy of a law itself. A succession of such verdicts may signal an unwillingness by the public to accept the law given them and may render it a "dead-letter" or bring about its repeal. The jury system was established because it was felt that a panel of citizens, drawn at random from the community, and serving for too short a time to be corrupted, would be more likely to render a just verdict, through judging both the accused and the law, than officials who may be unduly influenced to follow merely the established law. Jury nullification is a reminder that the right to trial by one's peers affords the public an opportunity to take a dissenting view about the justness of a statute or official practices.
Notwithstanding perceived righteous applications of jury nullification, it bears noting that this verdict anomaly can also occur simply as a device to absolve a defendant of culpability. Sympathy, bias or prejudice can influence some jurors to wholly disregard evidence and instruction in favor of a sort of "jury forgiveness."
“ I consider trial by jury as the only anchor yet imagined by man by which a government can be held to the principles of its constitution. ”
—Thomas Jefferson, 1789 letter to Thomas Paine

Monday, March 10, 2008

A Legal Giant Has Fallen, The Man Who Tamed Big Tabocco.

The legend of Richard Scruggs is by now well-known. His fame took root in the 1990s, when he won settlements for shipyard workers in Pascagoula, Miss., who had been exposed to asbestos. It blossomed in 1998, when the former Navy fighter pilot pressured tobacco companies to agree to a $248 billion settlement. And, in recent months, his story descended into the realm of scandal when the 61-year-old Scruggs, his son David "Zach" Scruggs and three others were indicted in his hometown of Oxford, Miss., for trying to bribe a judge to get a favorable ruling in a fee dispute.

But the legend of Dickie Scruggs, as commonly told, generally omits a key fact. Scruggs' reputation as a giant killer of the plaintiffs bar is outdated. Even before the indictment his career was in decline. In the 10 years since the tobacco settlement, Scruggs has taken on a series of quixotic cases. These matters were much ballyhooed in the press, but in the end they shared two things: big enemies and bad results. The only major success he's seen in the last decade hasn't been for the underdog plaintiffs that he champions, but for a big corporation that he defended in a product liability case.

Scruggs' experience with tobacco, where the plaintiffs achieved what had once been thought impossible, may have left him with an unrealistic expectation of the power of the legal system to cure social ills, and perhaps an inflated view of his abilities. Befitting a man who tamed tobacco, he set hugely ambitious targets and goals. He tried to reform the health care industry, hold Wall Street responsible for subprime lending years before the mortgage crisis erupted and take on the insurance powerhouses after Hurricane Katrina. But in the end he was largely thwarted.

His lawyer, John Keker of San Francisco's Keker & Van Nest, maintains his client is innocent of the criminal charges. "There's no question he didn't know about any bribery scheme the way the government describes it," Keker says. He also notes that most plaintiffs lawyers incur their share of losses, and Scruggs is no different: "Ask any successful plaintiffs lawyer. That happens more often than not."

The tobacco settlement that made Scruggs so wealthy was in many ways an aberration. It was the first and so far the only time that plaintiffs lawyers had the clout of a small army of 46 state attorneys general behind them. In addition, one tobacco company, Liggett Group LLC, did the unthinkable and broke ranks, agreeing to cooperate with the plaintiffs. This unprecedented alliance pressured the biggest tobacco companies to negotiate.

Scruggs has never revealed how much he's earned from the tobacco settlement. A three-person arbitration panel awarded a host of plaintiffs lawyers more than $13 billion in fees, which the tobacco companies are paying over 20 years. As a pioneer of this litigation, Scruggs presumably received one of the largest chunks. After the settlement, he spent time in Tahiti and enjoyed his yachts, jets, fast cars and vacation homes. It was a life he likely never imagined during his childhood, when he was raised by a single mother who worked as a secretary in the Pascagoula shipyards. (His parents divorced when he was 6.) But, like many lawyers who don't have to work, he couldn't stop working. He seemed to believe that his tobacco wealth was coupled with a divine mandate to make the world a better place.

After tobacco, Scruggs took aim at another populist villain, HMOs. He filed a class action RICO suit in October 1999 on behalf of up to 46 million patients who were members of six health maintenance organizations. He accused the defendents of falsely telling members that decisions about their treatment and coverage were based on medical necessity, when in fact cost-cutting guided these decisions. This litigation, he claimed, had "the power to dramatically improve the quality of health care throughout the nation." Scruggs outlined a multipronged attack: He expected institutional investors and Congress (where his brother-in-law Trent Lott was a senator) to fall in line and pressure HMOs to make sweeping changes. "We understand how to play this game now in ways that haven't been played before," he announced to Newsweek in 1999.

Scruggs enlisted some of his co-counsel from the tobacco crusade and hooked up with another famous lawyer, David Boies of Armonk, N.Y.-based Boies, Schiller & Flexner. But this star-studded assault fizzled. In 2002 Miami federal district court Judge Federico Moreno denied class certification. He reasoned that the patients' claims were too dissimilar because they had received so many differing representations from HMOs about the terms of their coverage. Scruggs and Boies proceeded with a few individual cases, but they recovered less than $250,000 in total settlements for a dozen individuals. And they didn't get a penny in attorney fees. "We got hammered," Scruggs candidly told The American Lawyer.

Instead, Scruggs could have filed a suit on behalf of doctors who contracted with HMOs. Joseph Langston, who worked with Scruggs on the HMO cases, explained to The American Lawyer in 2003 why they chose the patients: "We thought, frankly, the patients had the more compelling and emotional stories to tell." (Langston was indicted and in January pleaded guilty in a separate bribery case implicating Scruggs.) Meanwhile, a different group of lawyers moved forward with a RICO class action on behalf of 900,000 physicians. That group, led by Archie Lamb Jr. of Birmingham, got class certification from Judge Moreno and recouped settlements exceeding $2 billion.

As the HMO suits were collapsing, Scruggs was pulled into another case with a sympathetic story line: low-income borrowers trying to fight Wall Street. Years earlier a group of plaintiffs lawyers had gone after First Alliance Mortgage Co., a subprime lender accused of charging excessive fees and engaging in fraud. Before Scruggs joined the litigation, in March 2002 the plaintiffs lawyers, the Federal Trade Commission and six attorneys general reached a $60 million settlement with the estate of the bankrupt First Alliance and its former chief executive officer. The plaintiffs then turned their sights on the deep pockets of Lehman Brothers Inc., which had loaned money to First Alliance and closely monitored its operations. Plaintiffs lawyer Sheila Canavan says she pleaded with Scruggs to help them. Scruggs was reluctant at first, recalls Canavan, a solo practitioner from Moab, Utah. "He said, 'I'm considering retiring. I'm mostly doing health care stuff.'"

Plus, Canavan says, Scruggs wanted to limit his workload and travel because he had undergone two back surgeries. Canavan says she swayed Scruggs by playing for him a tape of a woman describing how she had been deceived by a First Alliance loan officer. Scruggs changed his mind and joined the RICO suit filed on behalf of 4,500 borrowers in Santa Ana, Calif., federal court.

Helen Duncan, a partner at Fulbright & Jaworski who represented Lehman, says Scruggs and his team started with high hopes. "They wanted a billion dollars from us, but offered to settle for $500 million," she recalls. When Lehman tried to settle for a much smaller amount, Scruggs reportedly told the Lehman lawyers he could financially afford to see this case to the end. "God didn't give me all this money to settle," Scruggs said, according to Duncan.

Not all of Scruggs' co-counsel shared his optimism. "I did not feel there was the potential for a huge recovery [against Lehman]," says David Zlotnick of San Diego's Krause Kalfayan Benink & Slavens, who was part of the original team that sued First Alliance. Zlotnick believed the recovery would be severely limited by a provision in the First Alliance settlement. There, the plaintiffs agreed to limit their claims against Lehman to its proportionate share of fault, to the extent required by a 9th U.S Circuit Court of Appeals case. (In return, Lehman agreed to waive its objections to the settlement.) Zlotnick thought that this "bar order" would prevent them from getting much from Lehman.

Scruggs believed otherwise and approached the case like a tobacco-sized battle. "Scruggs came in with a whole crew of people," recalls Zlotnick. He enlisted friends from Mississippi, like John "Don" Barrett of The Barrett Law Office in Lexington, Miss., who has allied with Scruggs on many cases. Milberg Weiss and Lieff, Cabraser, Heimann & Bernstein also signed on. "They had a different style of litigating than I do," adds Zlotnick about the Mississippi contingent. "The Gulfstream style." (Scruggs and Barrett commuted to California on separate private jets.)

During the three-month trial in 2003, Scruggs couldn't outmaneuver the bar order. He argued that applying the order to intentional torts would violate public policy, but federal district court Judge David Carter disagreed. (In the midst of the trial, Carter did grant Scruggs' request for a break so that he could preside as King of Mardi Gras back home in Mississippi.)

The jury's verdict was technically a victory for Scruggs, but more bitter than sweet. The jury held Lehman liable for aiding and abetting First Alliance's fraudulent lending, and concluded that the plaintiffs had incurred $51 million in damages. But, following the judge's interpretation of the bar order, the jury found that Lehman was only 10 percent at fault for those damages, which trimmed the recovery to $5 million. Scruggs appealed to the Ninth Circuit without success. In December 2006 the appellate court remanded the case for a recalculation of damages that still would not have exceeded $5 million. At press time the plaintiffs had agreed to a $2 million settlement that is awaiting court approval.

The case has been a huge money drain for Scruggs' team. In their fee application, they are seeking only $1.5 million, even though they spent more than $9.3 million in time and costs. "It was a Pyrrhic victory," says co-counsel Daniel Mulligan of San Francisco's Jenkins Mulligan & Gabriel. "It was nice to win against Lehman Brothers, but the amount was definitely disappointing."

Over the years, Scruggs has attempted to paint himself as a different breed of plaintiffs lawyer, one who is more principled and discerning. He has criticized lawyers who rush to file securities lawsuits after a company's stock drops. "Those are piggyback cases, not primary kills," he told Chief Executive magazine in June 2002. "I try to take on companies that have successfully avoided liability but shouldn't have. I don't want to get there after the antelope has been brought down."

In addition to eschewing securities suits, Scruggs has also opted not to take a seat on the lucrative pharmaceutical litigation bandwagon. Scruggs, it seems, isn't eager to join a case where he can't be the leader. "I'm probably not the best person in the world to work with others on a coequal basis," Scruggs told The American Lawyer in 1996. "I like to make decisions and call the shots."

Scruggs' principles, however, haven't stopped him from jumping to the other side. In 2001 he offered his services to Sulzer Medica Ltd., a Swiss company deluged with suits after recalling 40,000 defective hip implants. Scruggs decided to aggressively pursue the assignment and repeatedly contacted the company's general counsel, David Wise, to set up meetings, according to Wise. The GC initially rejected the entreaties, until finally agreeing to listen to the lawyer's proposal. Scruggs could offer exceptional access to the plaintiffs attorneys, which included his Mississippi friend Barrett. After flying to Zurich to meet with Sulzer's board, Scruggs was hired.

"He brought to the table unique insight into and understanding of the mass tort plaintiffs bar [and] he was genuinely interested in helping to save the company," Wise explained in an e-mail to The American Lawyer. (Wise is now general counsel at Cyberonics Inc., Sulzer's successor.)

Scruggs described his services in a different way to the Dallas Morning News in 2001: "If you want to catch a thief, you have to hire a thief." Scruggs brought in plaintiffs lawyer Joseph Langston to assist. Scruggs and the plaintiffs lawyers ultimately reached a $1.1 billion settlement.

This corporate assignment would turn out to be Scruggs' most successful matter since the 1998 tobacco settlement. His fee was not tobacco-size, but it was generous. Sulzer paid Scruggs and Langston $5 million up front and a $20 million success fee, according to Daniel Becnel Jr., one of the plaintiffs lawyer in that case. Wise would not comment on the fee. Harvey Kaplan, a partner in Shook, Hardy & Bacon's Kansas City, Mo., office, who also represented Sulzer, offers the highest praise for Scruggs. "He was great," says Kaplan. "I found him to be creative, engaging and a gentleman." In the Chief Executive article, Scruggs explained his decision to side with Sulzer in altruistic terms: "They've been in business for 100-plus years, they make life-enhancing products, and they had one screwup. It's just another outlet for my idealism."

Scruggs may bring the same idealism to his post-tobacco causes for plaintiffs, but they haven't fared as well. He has struggled in mass actions against not-for-profit hospitals and the welding industry.

Scruggs' battle against welding rod makers began in 2003, when he filed a case in New Orleans state court against Lincoln Electric Holdings Inc., General Electric Co. and others, alleging that the fumes from these rods cause neurological problems. More than 5,000 cases ended up as a multidistrict litigation, coordinated by Cleveland federal district court Judge Kathleen O'Malley, who appointed Scruggs and Barrett co-lead counsel. (More than 6,500 cases remained in state court.) Scruggs aligned himself with some of the country's best-known plaintiffs lawyers from the tobacco wars: Joseph Rice of South Carolina's Motley Rice; Walter Umphrey of Beaumont, Texas; Michael Papantonio, the name partner of Pensacola, Fla.'s, Levin, Papantonio, Thomas, Mitchell, Echsner & Proctor; and Richard Heimann of San Francisco.

The litigation looked promising at first. In October 2003 in a case outside the MDL not handled by Scruggs' group, a Madison County, Ill., jury awarded $1 million to a welder who claimed fumes caused his Parkinson's. "The Next Asbestos?" Forbes fretted in 2004. "I think we're talking aggregate damages way in excess of a billion dollars," said Scruggs' co-counsel John Climaco of Cleveland's Climaco, Lefkowitz, Peca, Wilcox & Garofoli in the Forbes article. The industry then settled the first Cleveland test case in 2005, paying more than $1.6 million.

But these defendants wouldn't follow the tobacco model. Instead of agreeing to a global settlement, they fought. They got an order requiring every plaintiff to detail his health claims. As a result of this and other defense motions, the federal caseload shrank to less than 1,700, according to Stephen Harburg, a Washington, D.C.-based partner at O'Melveny & Myers, which is the defendants' lead counsel. The claims of one test plaintiff set for trial collapsed when the defense secretly videotaped him acting much healthier than he claimed to be. Even plaintiffs lawyer Rice, who sat on the group's executive committee, eventually dropped out, opting to pursue fewer cases outside the MDL. "We wanted to take only cases we thought had more serious injuries," he says about the cases on Scruggs' docket.

"I think [the plaintiffs] thought they would overwhelm us with [cases], and if they could flood us with numbers early, we would buckle under the pressure," says O'Melveny's Harburg. Of the 18 cases that have gone to trial in state and federal court, the defendants have won 16. Still, the plaintiffs did get a lift at the end of last year, when a Cleveland federal jury ordered Lincoln Electric to pay $20.5 million to a former welder. Scruggs was not actively involved in that case, although a lawyer from his firm, David Shelton, assisted lead lawyer Climaco.

"We know they're tough cases," says Florida lawyer Papantonio. "Everybody had gone into this with their eyes open." Another co-counsel, however, grumbles about the costs of these cases. "[We've] lost more than we've won. Way more than we've won," says Becnel, who sits on the plaintiffs executive committee and says he has spent more than $1 million of his money on the cases.

Scruggs' attempt to reform the world of not-for-profit hospitals has foundered even more in the courtroom. In the summer of 2004 Scruggs started filing RICO suits against not-for-profit hospitals around the country, accusing them of violating their mandate to provide indigent care. The claims were made on behalf of uninsured patients who received huge hospital bills. The patients claimed standing as third-party beneficiaries of a contract between the hospitals and the federal government, a contract supposedly created by the hospitals' tax-exempt status. As usual, Scruggs' crusade attracted headlines, but the litigation sputtered. Every one of the cases has been dismissed on the pleadings. Most of the courts concluded that the plaintiffs have no standing. One judge lashed out at these actions. "Plaintiffs here have lost their way," wrote federal district court Judge Loretta Preska of the Southern District of New York. "They need to consult a map or a compass or a constitution, because plaintiffs have come to the judicial branch for relief that may only be granted in the legislative branch."

Scruggs' string of professional disappointments was joined by a personal one. In August 2005 Hurricane Katrina damaged his house in Pascagoula and harmed hundreds of thousands of others in his home state. The situation was tailor-made for a Scruggs' attack: hordes of sympathetic plaintiffs versus unsympathetic insurance companies.

Scruggs responded by forming the Scruggs Katrina Group in September 2005 with Barrett and three other Mississippi firms. The next month they filed a test homeowner suit against Nationwide Mutual Insurance Co. on behalf of Paul and Julie Leonard, a Pascagoula police lieutenant and his wife. The Leonards' house was inundated with five feet of water, and the couple claimed damages exceeding $130,000. Nationwide paid them only $1,661, the portion that the insurer said was due solely to wind. The plaintiffs' policy covered wind damage but excluded flood damage, and Scruggs accused the insurer of undervaluing the wind damage. He also claimed that Nationwide should be liable for damage caused jointly by wind and water.

The case was tried without a jury by senior federal district court Judge L.T. Senter Jr. in Gulfport, Miss. After an eight-day trial, Scruggs failed to get much more for the Leonards. Judge Senter awarded them just $1,228 in additional recovery. The Leonards' damages were disappointing but Scruggs did win a key point that could help him in other cases. Senter invalidated language in the Nationwide policy that appeared to prevent any recovery for damage caused jointly by wind and water; he held that the language was ambiguous and could not be enforced. That victory was short-lived. In August 2007 the 5th Circuit reversed and held that the language was enforceable.

Before the 5th Circuit issued its opinion, Scruggs settled other cases against Nationwide for a confidential amount. Scruggs also settled a slew of suits he had brought against Allstate Property and Casualty Insurance Co. and State Farm Fire and Casualty Co. Inc. According to the Web site of the Katrina Litigation Group (which recently changed its name from the Scruggs Katrina Group) the group has settled 1,300 claims. As part of a settlement of 640 cases with State Farm, Scruggs and his co-counsel got $26.5 million in fees. The fee award prompted a suit by Scruggs' co-counsel, John Jones, who claimed Scruggs was denying him his portion of the fees. It was in this case that Scruggs is alleged to have bribed a Mississippi state court judge for a favorable ruling. Since his indictment, Scruggs has withdrawn from all Katrina litigation.

Scruggs' indictment has left many who know him astounded and perplexed. "The whole thing is a shock," says R. Eric Kennedy of Cleveland's Weisman, Kennedy & Berris, who has worked with Scruggs as a plaintiffs lawyer and has also dealt with Scruggs as an adversary. "He is the epitome of honesty and honor. He's a pretty stubborn guy about doing things the right way. ... He's never been close to the line. Not even close." Papantonio, who has worked besides Scruggs on several cases, finds it hard to believe that he would risk his livelihood for a dispute over fees that are paltry compared to his wealth. "Ten to 15 million dollars doesn't change his life," Papantonio says.

Even if Scruggs is exonerated, it may be hard for him to revive a career marked recently by good intentions and disappointing results.

— Richard "Dickie" Scruggs, whom the Associated Press has dubbed the “King of Torts”, pleaded guilty Friday, 14 March 2008, to conspiring to bribe a judge — a crime that could send him to prison and spell the end of his storied legal career. (Melvin M. Belli was the real King of Torts)
Federal prosecutors are asking for the maximum of five years behind bars for the 61-year-old Scruggs, the multimillionaire "King of Torts" who combined a shrewd legal mind and aw-shucks country-lawyer charm to extract billions of dollars from the tobacco and asbestos industries, among others.
He will also lose his license to practice law.
Scruggs and another lawyer in his firm, Sidney Backstrom, pleaded guilty to conspiracy to defraud for offering a $50,000 cash bribe to a Mississippi judge for a favorable ruling in a dispute over legal fees from a Hurricane Katrina insurance lawsuit.
In return for Scruggs' guilty plea, prosecutors will recommend that the judge drop several other counts against him, including fraud. No sentencing date was set during the hearing at the federal courthouse in Oxford.
Scruggs' son and law partner, Zach, also is charged in the case but did not enter a plea and is expected to go to trial.
For months, Scruggs appeared intent on fighting the charges, and many reporters who had closely followed the case were caught off-guard by the plea bargain. Scruggs folded after two of his co-defendants turned on him, one of them secretly tape-recording him for the FBI.

Navy Doctor Videotaped Guests in His Home Having Sex.

In November 2007, a jury of six Navy captains sentenced CDR Kevin Ronan a 46-month term in the Navy brig and ordered his dismissal from the military. He had been convicted of conduct unbecoming an officer, illegal wiretapping and obstruction of justice. He began serving his sentence shortly afterward.

Navy prosecutors had asked for the 46-month sentence because it was equal to the time a midshipman spends at the Naval Academy in Annapolis, Maryland.
But Vice Adm. Adam M. Robinson, the Navy’s surgeon general, has decided to reduce the sentence.

“The surgeon general said that he believed 24 months was adequate, so he directed that the remainder of that 46 months be suspended,” said a spokesman. “What that means is if Commander Ronan is a model prisoner, then once he reaches that two-year mark, the suspension [of the sentence] will go into effect.”

Vice Admiral Robinson weighed the benefit of keeping CDR Ronan confined for the full sentence, the expense of confinement and a belief that Ronan had been sent a significant message about his actions.

CDR Ronan denied making the recordings during testimony at his trial, but acknowledged he bought an air purifier with a hidden camera. Ronan’s defense was that the tapes were made by midshipmen in an effort to extort money from him.

Before he was sentenced, CDR Ronan expressed regret but did not take responsibility for the tapes. “A crime occurred in my house with equipment I knowingly provided and I take responsibility for that,” he said.

Navy prosecutors alleged Ronan used the camera to tape the male midshipmen having sex with girlfriends or masturbating while they stayed in guest bedrooms at his Annapolis home. The midshipmen were there as part of an academy program that places students in private homes during their free time.

Ronan testified that he bought the device to make sure the students didn’t throw parties while he wasn’t home. He said he tested it once, but later used it only to clean the air in the spare bedrooms, not for taping.

Ronan allegedly began using the camera for taping as early as May 2006. Two men, one a midshipman, the other a former student, found the recordings and turned them over to authorities.
Before he was assigned to the Bureau of Medicine and Surgery, CDR Ronan ran the Naval Academy’s student health clinic for four years until 2006. He was also a doctor for several Navy sports teams.

He hosted about a dozen students at his house, mostly as part of the Naval Academy’s sponsorship program.

Sunday, March 9, 2008

Female Civilian Receives $490,000.00 In Sexual Discrimination Settlement.

A Female Air Force Employee Will be Paid $490,000 in the Settlement Of a Sexual Discrimination lawsuit.

BEALE AIR FORCE BASE, Calif. – The Air Force has agreed to give a career civilian nearly half a million dollars and a promotion to settle a sexual discrimination suit.

In the lead up to a federal court trial March 11, 2008 the Air Force settled the suit, filed by Beale Air Force Base employee Suzanne Mertes. She was born on the base, has worked there since 1979 and continues to work in a transportation support division.

The settlement does not mean the Air Force admits liability for Mertes’ sexual discrimination claims, said a spokeswoman for Sacramento’s U.S. Attorney’s Office, which represented the Air Force.

Mertes said she was called a “typical blue-collar type,” a bitch, a troublemaker and “not management material,” according to the Appeal-Democrat newspaper in Marysville, Calif. This, among other things, appears to have created a hostile and intimadating environment and made it impossible for her to perform her duties.

She will also be promoted to a supervisor position and receive $490,000. According to Mertes’ suit, she worked in a male-dominated environment that did not condone female supervisors.

Naval Academy Charges Cadets With Rape and Child Porn.

The United States Naval Academy at Annapolis, Maryland announced Friday, 7 March 2008, that two upper-class midshipmen have been referred to an Article 32 Investigation on charges including child pornography and rape:

* Midshipman 1st Class Michael Pollard, a senior, faces charges of attempting to distribute child pornography, obstruction of justice, possessing pornography in Bancroft Hall, making a false official statement and obstructing justice, and receiving and possessing child pornography, said Naval Academy spokeswoman Jennifer Erickson. The alleged incidents occurred between July 2003 and August 2007, according to an Annapolis statement.

* Midshipman 2nd Class Mark Calvanico, a junior, faces charges of rape, unauthorized absence, unlawful breaking and entering into a dwelling with intent to commit rape, and conduct unbecoming an officer. The alleged incidents happened Oct. 14, 2007 according to an Annapolis Academy statement.

Midshipman Pollard’s hearing is scheduled for March 24, and Midshipman Calvanico’s is March 28. Both Article 32 Investigations will be conducted at the Washington Navy Yard, in Southeast Washington,DC, near Fort McNair.

On Friday Apr 25, 2008, it was revealed that Midshipman 1st Class Michael S. Pollard
will face a general court-martial more than a year after another midshipman allegedly found child pornography on his laptop computer.

After reviewing findings of the investigating officer who presided over an April 7, 2008 Article 32 hearing, convening authority Naval Academy superintendent Vice Adm. Jeffrey Fowler decided that Midshipman 1st Class Michael S. Pollard should stand trial.

Pollard is charged with receipt, possession and attempted distribution of child pornography stored electronically on computer equipment.

At the Article 32 hearing, Midshipman 1st Class Mikoto Yoshida testified that the found a video file titled “Boy Party,” of “two naked adolescent boys moving toward each other,” and fan fiction accounts of sexual encounters between the three brothers on the television show “Malcolm in the Middle” on Pollard’s computer when he logged on to watch a television show during a class break.

Yoshida, who shared a suite with Pollard and three other midshipmen, testified that he consulted with two of the roommates before going to his class officer to report what he found.

Pollard’s computer was seized later that day. An agent from a private forensics laboratory testified that he found evidence of several hundred pornographic images of prepubescent boys on it, and on another computer than Naval Criminal Investigative Service agents took from Pollard’s mother’s Apopka, Fla., home.

Homosexual Senior Navy Midshipman Michael Pollard was sentenced to six years in the brig, with one year suspended under a pre-trial plea bargaining agreement, for child pornography after his court-martial conviction on 4 August 2008.

Cadet Pollard says he was afraid to seek help for his sexual addiction.

The Article 32 was held at the same location where 1st Class Midshipman Lamar Owens, the former star quarterback at Annapolis,was charged last year with - and later acquitted of - raping a fellow midshipman in her barracks room. While not convicted of the rape, Owens was convicted of two lesser counts: conduct unbecoming an officer (for having sex in the dorm) and disobeying a lawful order (for having contact with the accuser). However, the jury recommended that Owens receive no punishment.

The female midshipman testified 22 April 2008 that Midshipman 3rd Class Mark Calvanico raped her in her dorm room after he had been drinking.

Midshipman Mark Calvanico is accused of rape, making a false statement to investigators, conduct unbecoming an officer and unauthorized absence.

The woman, who is in her second year at the academy, testified at the Article 32 hearing at the Washington Navy Yard.

The woman said Calvanico, whom she described as an acquaintance, forced himself on her in October 2007 after making a third visit to her dorm room after midnight. She testified that she told Calvanico to leave her alone, but he wouldn’t listen.

“He was drunk, and he was very forceful,” she said.

The woman testified that Calvanico pinned down her arms during the assault. She paused and wept several times during her testimony and struggled to describe details of the incident.

“He raped me,” she said under questioning. “I mean, what do you want me to say?”

Calvanico’s lawyer, Michael Waddington, argued there was no evidence of “forcible rape” and that his client simply wanted to “schmooze his way into a make-out session” with someone who had expressed romantic interest in him.

“It’s our position there was no intercourse — no intercourse, no rape,” Waddington told Lt. John Clady, the investigating officer in the case who is assigned to issue an opinion on whether the case should proceed to a court-martial.

The accuser’s roommate testified that Calvanico visited their room five times that night, but that her roommate had left the room after his third visit, when the attack is alleged to have occurred.

She said Calvanico and her roommate had a burgeoning romance that they were concerned violated the school’s fraternization policy.

The roommate said she was half asleep with her back to Calvanico and her roommate at the time the attack is alleged to have happened. She said she didn’t hear yelling, but that she heard her roommate tell Calvanico to “get out of my room.”

She said she didn’t hear signs of a struggle but that she did hear a rustling coming from her roommate’s bed.

Naval Criminal Investigative Service Agent Michelle Robinson testified that DNA from both midshipmen was found on the inside and outside of a pair of boxer shorts Calvanico had been wearing that night.

Under questioning by the defense, Robinson said Calvanico’s DNA was not found on a vaginal swab of the accuser or on any of the blankets, sheets or clothes. Robinson also said no bruises or cuts were found on the accuser’s genitals.

FBI Cold Cases Reopened From Civil Rights Era.

The FBI is investigating 26 unsolved civil rights era cases out of nearly 100 referred to the bureau over the last year, Director Robert Mueller sais. He is calling the protection of civil liberties one of his top priorities.
Mueller was set to testify 5 March at an FBI oversight hearing before the Senate. Lawmakers were expected to press him about whether his agents violated the civil rights of U.S. citizens whose personal information was obtained secretly in terror and spy investigations.

In a prepared statement sent 4 March to the Senate, Mueller vowed "to protect the security of our nation while upholding the civil rights guaranteed by the Constitution to every United States citizen."

"It is not enough to prevent foreign countries from stealing our secrets — we must prevent that from happening while still upholding the rule of law," Mueller says. "It is not enough to stop the terrorist — we must stop him while maintaining civil liberties. It is not enough to catch the criminal — we must catch him while respecting his civil rights.

"The rule of law, civil liberties and civil rights — these are not our burdens; they are what make us better," Mueller said in his written remarks.

Mueller's remarks offer the first details about the FBI's efforts to reopen decades-old civil rights cases since the successful prosecution last summer of a reputed Ku Klux Klansman for his role in the 1964 abduction and killing of two Black teenagers.

Early last year, more than 100 unsolved cases were referred to the FBI. Mueller said 95 of them were sent to investigators in 17 field offices around the country. Ultimately, 52 cases were opened and 26 of those were being reviewed by the Justice Department "to determine if additional investigation is necessary," he said.

"For those cases in which we can move forward, we will," he said.

Democrats who control the Senate Judiciary Committee, however, were expected to focus on whether FBI missteps over the last year — in civil rights and other areas — have been corrected.

Senate aides for several Democrats said Mueller was expected to be asked about the FBI's use of national security letters, which are used under the USA Patriot Act to pursue suspected terrorists and spies.

An audit last year by the Justice Department's inspector general (IG) found that FBI agents and lawyers, from 2003 to 2005, demanded personal data on people from banks, telephone and Internet providers, credit bureaus and other businesses without official authorization and in non-emergency circumstances.

The IG is expected to issue a follow-up audit at any time that will focus on the FBI's use of national security letters in 2006. Several Justice Department and FBI officials familiar with the upcoming report say it will conclude that the letters were wrongly used at a similar rate as during the previous three years.

But the officials noted that the new audit only examines national security letters that were issued before the FBI was notified of the problems in March 2007 and changed its system. The officials spoke on condition of anonymity because they were not authorized to discuss the audit publicly.

Senate aides said Mueller also probably will be asked about the FBI's failure to pay phone bills on time, prompting telephone companies to cut off wiretaps used to eavesdrop on suspected criminals. In at least one case, a wiretap used in a Foreign Intelligence Surveillance Act (FISA) investigation "was halted due to untimely payment," according to a January internal Justice audit.

FISA wiretaps are used in the government's most sensitive and secretive criminal and intelligence investigations, and allow eavesdropping on suspected terrorists or spies.

Wednesday, March 5, 2008

Big Brother Is Watching, and Collecting Your 411.

The FBI improperly used national security letters in 2006 to obtain personal data on Americans during terror and spy investigations, Director Robert Mueller said Wednesday, 27 February.

Mueller told the Senate Judiciary Committee that the privacy breach by FBI agents and lawyers occurred a year before the bureau enacted sweeping new reforms to prevent future lapses.

Details on the abuses will be outlined in the coming days in a report by the Justice Department's inspector general, (IG).
The report is a follow-up to an audit by the IG a year ago that found the FBI demanded personal data on people from banks, telephone and Internet providers and credit bureaus without official authorization and in nonemergency circumstances between 2003 and 2005.

Mueller, noting senators' concerns about Americans' civil and privacy rights, said the new report "will identify issues similar to those in the report issued last March." The similarities, he said, are because the time period of the two studies "predates the reforms we now have in place."

He added: "We are committed to ensuring that we not only get this right, but maintain the vital trust of the American people."

Mueller offered no additional details. Several other Justice Department and FBI officials familiar with this year's findings have said privately the upcoming report will show the letters were wrongly used at a similar rate as during the previous three years.

In contrast to the outrage by Congress and civil liberties groups after last year's report was issued, Mueller's disclosure drew no criticism from senators during just over two hours of testimony during Wednesday's hearing.

Speaking before the FBI chief, Senate Judiciary Chairman Patrick Leahy, D-Vt., urged Mueller to be more vigilant in correcting what he called "widespread illegal and improper use of national security letters."

"Everybody wants to stop terrorists. But we also, though, as Americans, we believe in our privacy rights and we want those protected," Leahy said. "There has to be a better chain of command for this. You cannot just have an FBI agent who decides he'd like to obtain Americans' records, bank records or anything else and do it just because they want to."

National security letters, as outlined in the USA Patriot Act, are administrative subpoenas used in suspected terrorism and espionage cases. They allow the FBI to require telephone companies, Internet service providers, banks, credit bureaus and other businesses to produce highly personal records about their customers or subscribers without a judge's approval.

The number of national security letters issued by the FBI skyrocketed in the years after the Patriot Act became law in 2001, according to last year's report by Justice Department Inspector General Glenn A. Fine. His review is required by Congress, over the objections of the Bush administration.

Former FBI agent Michael German, now a national security adviser for the American Civil Liberties Union, said Mueller's admission that the bureau violated laws for the fourth year in a row underscores the need to have a judge sign off on the subpoenas.

"The credibility factor shows there needs to be outside oversight," German said after the hearing.

German also cast doubt on FBI reforms to prevent future abuses. "There were guidelines before, and there were laws before, and the FBI violated those laws," he said. "And the idea that new guidelines would make a difference, I think cuts against rationality."

Fine's earlier report, issued March 9, 2007, blamed agent error and shoddy record-keeping for the bulk of the problems and did not find any indication of criminal misconduct.

It uncovered thousands of examples of the FBI's failure to properly report the number of national security letters as required by law. The 2007 report also identified instances where agents did not get proper authorization or made otherwise improper requests for information from telephone companies and Internet service providers.

In 2005, for example, Fine's office found more than 1,000 violations within 19,000 FBI requests to obtain 47,000 records. Each letter issued may contain several requests. Justice Department and FBI auditors said last summer that many of the abuses were caused by companies that gave more information than the FBI sought.

The FBI and Justice Department have since enacted guidelines and sternly reminded FBI agents to carefully follow the rules governing the national security letters. They caution agents to review all data before it is transferred into FBI databases to make sure that only the information specifically requested is used.

Monday, March 3, 2008

USCG Law Specialist In Iraq.

Coast Guard Law Specialist, Lieutenant Robert M. Pirone.

Yesterday, 29 Feb 2008, on National Public Radio's flagship news program, All Things Considered, Nina Totenberg had a story, Iraqi Conviction Overturned, Munaf to Face High Court. It was the usual, you know, U.S. citizen to be killed after sentencing by Iraqi courts, until she started telling the story and somehow a Coast Guard lieutenant's actions are coming into play before the Supreme Court.

Evidently, Mohammad Munaf had been detained by U.S. forces, and he was later turned over to the Iraq government to face trial in the Central Criminal Court of Iraq (CCCI). From a brief filed on behalf of Mr. Munaf, we continue the story:

Because Mr. Munaf was charged in connection with the kidnapping of Romanian citizens, the CCCI could not prosecute him without a formal complaint by the Romanian government.

At the October 12, 2006 proceeding, Lieutenant Robert M. Pirone of the U.S. Coast Guard appeared in the CCCI, purportedly on behalf of the Romanian Government, to make a formal complaint against Mr. Munaf. Resp. to Petrs.’ Emergency Supplement to Mot. TRO at 2.

Lieutenant Pirone stated that the Romanian Embassy had authorized him to appear on its behalf. Id. He claimed this authorization was documented in a signed and stamped letter subrnitted (sic) in advance to the Iraqi court. Id. No such letter was produced in court, however, and neither Mr. Munaf nor his counsel have seen it. On the basis of Lt. Pirone’s complaint, Mr. Munaf was convicted and sentenced to death.
So the brief says.

Evidently, the Supreme Court decided today to hear two cases in late March that, according to a brief by the Brennan Center for Justice,
present a stark constitutional question: do Americans seized and held abroad have the same fundamental rights as other U.S. citizens?

The cases will be heard on March 25 and the Supreme Court will decide two issues: First, whether military officials have the power to seize and detain a U.S. citizen, without judicial review, based on their claim that they are "agents" of a multinational entity.
And second, do those officials then have free rein to hand over an American to another government likely to torture and kill him.
The story of how Lieutenant Pirone got mixed up in all of this ought to be interesting, no matter what happens to the case.

Mr. Pirone is, indeed, a Coast Guard attorney. He is a 2002 graduate of Pace Law School, a member of the New York and Connecticut Bars, and was commissioned as a Lieutenant in the Coast Guard in August 2003.

LT Pirone has been involved in a number of interesting cases including United States v. Jesse C. Hunter and United States v. Albert (NMN) Stellon, Jr.
LT Perone, a 1993 graduate of Fordham Preparatory School in the Bronx, updated his alma mater in 2006 writing,

"I’m still a JAG with the United States Coast Guard. However, my base of operations has shifted from Washington, DC to Baghdad, Iraq. I’m an attorney working with the Central Criminal Court of Iraq. Here I represent the Coalition Forces prosecuting all sorts of bad guys in the Iraqi Courts, from Al-Qaeda members to your average grenade throwing insurgent. . ."
I wonder where he thought Mohammad Munaf fell along that spectrum.

Another brief filed on behalf of this upcoming Supreme Court case noted,
Robert Pirone, a Coast Guard Lieutenant who serves as an attorney at the CCCI Liaison Office in Baghdad, was present at the hearing in his capacity as a participant in MNF-I. Pirone Decl. ¶ 1. According to Pirone’s sworn affidavit, Pirone appeared at the trial to make a formal complaint for the Romanian government about the kidnapping, whose victims were all Romanian.5 Id. ¶ 7. Pirone was under oath at the trial, and his notarized authorization to represent the Romanian Embassy had been submitted to the court weeks before the trial. Id. In his affidavit, Pirone attests that his role at the trial was limited to answering questions about the case, based on prior confessions by the defendants, and to making the formal complaint, a requirement under Iraqi law.
This is likely not the forum to ask why the Romanians couldn't get a diplomat to speak on their behalf.
Photograph of LT Robert M. Pirone was originally published in the Coast Guard Reservist, Issue 03/07.



certiorari to the united states court of appeals for the district of columbia circuit

No. 06–1666. Argued March 25, 2008—Decided June 12, 2008*

The Multinational Force–Iraq (MNF–I) is an international coalition force composed of 26 nations, including the United States. It operates in Iraq under the unified command of U. S. military officers, at the Iraqi Government’s request, and in accordance with United Nations Security Council Resolutions. Pursuant to the U. N. mandate, MNF–I forces detain individuals alleged to have committed hostile or warlike acts in Iraq, pending investigation and prosecution in Iraqi courts under Iraqi law.

Shawqi Omar and Mohammad Munaf (hereinafter petitioners) are American citizens who voluntarily traveled to Iraq and allegedly committed crimes there. They were each captured by military forces operating as part of the MNF–I; given hearings before MNF–I Tribunals composed of American officers, who concluded that petitioners posed threats to Iraq’s security; and placed in the custody of the U. S. military operating as part of the MNF-I. Family members filed next-friend habeas corpus petitions on behalf of both petitioners in the United States District Court for the District of Columbia....

Federal district courts, however, may not exercise their habeas jurisdiction to enjoin the United States from transferring individuals alleged to have committed crimes and detained within the territory of a foreign sovereign to that sovereign for criminal prosecution. Because petitioners state no claim in their habeas petitions for which relief can be granted, their habeas petitions should have been promptly dismissed, and no injunction should have been entered....

Petitioners argue that they are entitled to habeas relief because they have a legally enforceable right not to be transferred to Iraqi authorities for criminal proceedings and because they are innocent civilians unlawfully detained by the Government. With respect to the transfer claim, they request an injunction prohibiting the Government from transferring them to Iraqi custody. With respect to the unlawful detention claim, they seek release but only to the extent it would not result in unlawful transfer to Iraqi custody. Because both requests would interfere with Iraq’s sovereign right to “punish offenses against its laws committed within its borders,” Wilson v. Girard, 354 U. S. 524, 529, petitioners’ claims do not state grounds upon which habeas relief may be granted. Their habeas petitions should have been promptly dismissed and no injunction should have been entered....

Habeas is governed by equitable principles. Thus, prudential concerns may “require a federal court to forgo the exercise of its habeas … power.” Francis v. Henderson, 425 U. S. 536, 539. Here, the unusual nature of the relief sought by petitioners suggests that habeas is not appropriate. Habeas is at its core a remedy for unlawful executive detention. Hamdi v. Rumsfeld, 542 U. S. 507, 536. The typical remedy is, of course, release. See, e.g., Preiser v. Rodriguez, 411 U. S. 475, 484. But the habeas petitioners in these cases do not want simple release; that would expose them to apprehension by Iraqi authorities for criminal prosecution—precisely what they went to federal court to avoid.

The habeas petitioners do not dispute that they voluntarily traveled to Iraq, that they remain detained within the sovereign territory of Iraq today, or that they are alleged to have committed serious crimes in Iraq. Indeed, Omar and Munaf both concede that, if they were not in MNF–I custody, Iraq would be free to arrest and prosecute them under Iraqi law. Further, Munaf is the subject of ongoing Iraqi criminal proceedings and Omar would be but for the present injunction. Given these facts, Iraq has a sovereign right to prosecute them for crimes committed on its soil, even if its criminal process does not come with all the rights guaranteed by the Constitution, see Neely v. Henkel, 180 U. S. 109, 123. As Chief Justice Marshall explained nearly two centuries ago, “[t]he jurisdiction of the nation within its own territory is necessarily exclusive and absolute.” Schooner Exchange v. McFaddon, 7 Cranch 116, 136.

Petitioners’ allegations that their transfer to Iraqi custody is likely to result in torture are a matter of serious concern but those allegations generally must be addressed by the political branches, not the judiciary. The recognition that it is for the democratically elected branches to assess practices in foreign countries and to determine national policy in light of those assessments is nothing new. As Chief Justice Marshall explained in the Schooner Exchange, “exemptions from territorial jurisdiction . . . must be derived from the consent of the sovereign of the territory” and are “rather questions of policy than of law, … they are for diplomatic, rather than legal discussion.” 7 Cranch, at 143, 146. In the present cases, the Government explains that it is the policy of the United States not to transfer an individual in circumstances where torture is likely to result and that the State Department has determined that the Justice Ministry—the department which has authority over Munaf and Omar—as well as its prison and detention facilities, have generally met internationally accepted standards for basic prisoner needs. The judiciary is not suited to second-guess such determinations.

Roberts, C. J., delivered the opinion for a unanimous Court. Souter, J., filed a concurring opinion, in which Ginsburg and Breyer, JJ., join

Do Not Pass Go. Go Straight To Jail.

Do Not Pass GO. Go Straight To Jail.
Another Black man goes to jail. And we thought that only drug dealers were being sent to jail decimating the next generation of Black males. Some statistics show that up to 75 percent of Black males between 16 and 35 are either in jail or have been in jail because of drug related offenses. Cadet Webster Smith thought that he had beat the odds. He thought that he was home free. After all, he is one of the "best and the brightest" that the Black community has produced, and he was about to graduate from one of the finest small colleges in America. His parents, Cleon and Belinda Smith, had done all that they knew how to do to protect their son from a Black mother's worst nightmare in post- Civil War America. Now, he has been to jail and is a registered sex offender.

After his kangaroo court-martial, Cadet Webster Smith was taken to the U.S. Navy brig at the Submarine Base in Groton, Connecticut on 28 June 2006.

He should have been granted an 8 day deferment of the sentence. This is normally a routine thing. However, this was not a routine case. Even the vilest military convicted offender is given some time alone with his family to say good-bye. Webster Smith was not. Webster waited in a secure room under double security guards while his written Request for Deferment was presented to Admiral James Van Sice. The Admiral sat in his ivory tower with Commander Steven Gill, his military advisor, and drank coffee. Then he summarily denied the routine request without any justification whatsoever. This has never been done before. Admiral Van Sice received bad advice from his legal advisor.

As soon as Van Sice's signature was on the denial order, two flat-footed agents from the Coast Guard Investigative Service (CGIS) ordered Cadet Smith's parents to vacate the premises. Mild mannered Webster Smith was handcuffed and paraded up and down the corridor all the rabble to gawk and marvel. Poor Webster Smith was made a spectacle. Thoroughly humbled and suitably constrained, he was offered for inspection to Kristen Nicholson and Shelly Raudenbush, the two principal witnesses against him. Then, still in handcuffs, he was paraded in front of the news media for a photo opportunity. This was cruel and inhuman punishment.

America’s “War on Drugs” has cost hundreds of billions of taxpayer dollars over the past two decades, yet failed to deliver virtually any measurable or lasting results. A significant reason for this failure is that over the course of the 1990s the federal government began to target its efforts on small time urban drug dealers and marijuana users, rather than on potentially lethal drugs like methamphetamine and the hard-core criminals who deal and traffic in them. This strategy of targeting young Black drug pushers and marijuana users is clogging our courts and swelling the populations of our state prisons and local jails. That is where the young Black men are. They are not on college campuses. They are in jail.

Web Smith was on a college campus. He was about to graduate. Then Kristen Nicholsen discovered six months after the fact that she really did not want to have sex that night. So, because she thought she had changed her mind, or couldn't remember who did what to whom on that fateful night long ago, another Black man's dream was deferred.

Oh, to have been in the crowded court room in New London, Connecticut and to hear this young virile Black cadet football player tell the jury, "I wanted to be an officer. I apologize that you have not seen that this week".

What happens to a dream deferred?
Does it dry up like a raisin in the sun,
or fester like a sore; and then run?
Does it stink like rotten meat?
Or crust and sugar over; Like a syrupy sweet?
Maybe it just sags like a heavy load.
Or does it explode???

For the first time in America’s history, more than one in 100 American adults is behind bars, according to a new 2008 report.

Nationwide, the prison population grew by 25,000 last year, bringing it to almost 1.6 million. Another 723,000 people are in local jails. The number of American adults is about 230 million, meaning that one in every 99.1 adults is behind bars.
Incarceration rates are even higher for some groups. One in 36 Hispanic adults is behind bars, based on Justice Department figures for 2006.

One in 15 Black adults is, too, as is one in nine Black men between the ages of 20 and 34.

The report, from the Pew Center on the States, also found that only one in 355 white women between the ages of 35 and 39 is behind bars, but that one in 100 Black women is.

The report's methodology differed from that used by the Justice Department, which calculates the incarceration rate by using the total population rather than the adult population as the denominator. Using the department's methodology, about one in 130 Americans is behind bars.

Either way, said Susan Urahn, the center's managing director, "we aren't really getting the return in public safety from this level of incarceration."
"We tend to be a country in which incarceration is an easy response to crime," Urahn continued. "Being tough on crime is an easy position to take, particularly if you have the money. And we did have the money in the '80s and '90s."

Now, with fewer resources available to the states, the report said, "prison costs are blowing a hole in state budgets." On average, states spend almost 7 percent on their budgets on corrections, trailing only health care, education and transportation.

In 2007, according to the National Association of State Budgeting Officers, states spent $44 billion in tax dollars on corrections. That is up from $10.6 billion in 1987, a 127 increase once adjusted for inflation. With money from bond issues and from the federal government included, total state spending on corrections last year was $49 billion. By 2011, the report said, states are on track to spend an additional $25 billion.

It cost an average of $23,876 to imprison someone in 2005, the most recent year for which data is available. But state spending varies widely, from $45,000 a year for each inmate in Rhode Island to just $13,000 in Louisiana.

The cost of medical care is growing by 10 percent annually, the report said, a rate that will accelerate as the prison population ages.

About one in nine state government employees works in corrections, and some states are finding it hard to fill those jobs. California spent more than $500 million on overtime alone in 2006.

The number of prisoners in California dropped by 4,000 last year, making Texas' prison system the nation's largest, at about 172,000 inmates. But the Texas legislature approved broad changes to the state's corrections system, including expansions of drug treatment programs and drug courts and revisions to parole practices.