Tuesday, May 30, 2006

A Former Prosecutor Sentenced; A Current Prosecutor Outraged and Frustrated

Kimball Mason, former prosecutor for the City of Idaho Falls, was sentenced today on two counts of Grand Theft and one count of Falsifying a Public Record. He received three concurrent one-to-five year prison terms. Mason was ordered to pay $8,400 in restitution to the City of Idaho Falls for firearms he took that had been seized under forfeiture laws or that were otherwise in the possession of the city police department. Mason was also required to pay $1,800 for the cost of the investigation. As part of the plea ageement, Mason was required to surrender his license to practice law. He was also required to admit to the wrongful taking of 16 other guns. According to the Attorney General's Office, there were over 50 counts of theft for which Mason was not charge. The AG's Office agreed not to file those charges as part of the plea agreement, an agreement that was reached prior to the filing of the charges for which Mason pled guilty. For more information you can read the Idaho Attorney General's Office press release.

Outraged!!! That's just the beginning of the words that describe how I feel about Mason's behavior. Here is a list of other terms that cross my mind: disgusted, sickened, horrified, shocked, numb, overwhelmed, astounded, flabbergasted, insulted, incensed, agitated, aggravated, angry, enraged, infuriated, and BETRAYED.

Let me add one more word to the list: frustrated. The public is already being exposed to an unrealistic view of prosecutors (as well as other players in the criminal justice system) via the overwhelming number of crime dramas on television. To the extent any of the public has doubts about the integrity of prosecutors, this case only solidifies those doubts. I must now deal with the concept of "guilt by association." I have already received random ribbing from people about this case. I hear comments like "What's in your wallet?" "How big is your gun collection?" and "Is that your ride? Really?" I know it is intended as joking but, it is only confirms the image problem. And, what about the attitude of criminal defendants? How can I expect them to respect how prosecutors handle their cases if they think we are hypocrites or live by a double standard?

What do I think caused this? A reputation that fostered arrogance and a sense of invincibility and a gravy-train mentality. Mason was a well-known prosecutor in my part of the state. He used to be the Bonneville County Prosecuting Attorney. He prosecuted many high profile cases that earned him a reputation as a very good and successful trial attorney; as the good guy; as one of those super-hero types. Nobody questioned his integrity. His reputation, no doubt, resulted in him becoming the city prosecutor. It also, I am sure, led to his ability to receive a salary that was more than my salary and my office manager/secretary's salary put together. And, he only did criminal prosecutions for the city part-time. He had a private practice. He also worked on the side for at least one other county. His overall annual salary was probably twice what mine is. I think that all of these factors led to an environment where Mason thought the rules did not apply to him. And, there was no accounting or other accountability measures in place with the city. So, he was pretty much free to do what he wanted with little or no risk of being detected. However, the fact that he apparently altered at least one court document in order to facility removal of a gun from evidence shows the level of moral bankruptcy which Mason had reached.

Do I feel sorry for him? Not one bit. He became arrogant and greedy. He is a traitor to one of the nobelest of causes and professions on this planet. He deserved every ounce of what was handed out.

Monday, May 29, 2006

Looking. But, No "Friendlies" In Sight.

I first ventured to start this blog (or "blawg," as I have been informed) in December of last year. I wanted to put links to several blogs that I though would give different perspectives on criminal law, politics, and other topics I was likely to cover. I did a lot of searching for other blogs written by prosecutors. I found a grand total of two prosecutor blogs after more than an hour of searching. Then, my case load and a new baby boy at home put this blog on the shelf.

I recently took the blog off the shelf and starting posting. I am still determined to put together a good list of links to other blogs. I set out researching again for more prosecutor blogs. My searching has now led me to a grand total of three prosecutor authored blogs and one which is not the real deal, but an imitator-commentator pretending to be a specific real prosecutor.

There are only two logical conclusions to be drawn from my research: I either suck at searching blogs on the internet or there really are no "friendlies" in sight. If we are to assume that I don't suck at blog searching (which is the route my ego would prefer I take), I am left pondering why there are no prosecutors out there blogging. I will give that some thought while I continue my quest. Any help would be . . . [considering that I am asking others to prove that I suck at blog searching] . . . much appreciated.

Sunday, May 28, 2006

Congressional Immunity From Search Warrants. Are They Serious? Part II

Congress members upset about the recent search of the office of one of their own by the FBI have now thrown out the Speech and Debate Clause (Article I, Section 6) of the Constitution as one of the reasons that the search was unconstitutional (or, as I have put it in a recent post: why Conress members think there is a search warrant exception when it comes to their congressional offices). I think we are witnessing a problem that happens all too often with politicians. They open their mouths and make an argument without having read the law their talking about first.

I can excuse the act of speak-first, be-proven-wrong-later to some degree when it comes to an ambiguous provision or contradictory provisions of the constitution. Those scenerios require researching court cases to determine the viability of a particular position. Researching cases can be cumbersome, mind-numbingly boring and, in some instances, disclose more ambiguity that it resolves. But, all to often, I see politicians spout off about what a constitutional provision, statute, or ordinance means when there is no language in the provision, statute or ordinance to support their claim.

So here is the portion of the Speech and Debate Clause regarding immunity/privilege:

They [Senators and Representatives] shall in all cases, except treason, felony and breach of the peace, be privileged from arrest during their attendance at the session of their respective Houses, and in going to and returning from the same; and for any speech or debate in either House, they shall not be questioned in any other place.

The first part of the clause just states that they cannot be arrested during their attendance at a Congressional session or when they are going to or coming from session. That wasn't the case here. Even if it was, the exemption doesn't apply when it comes to felonies. The bribery allegation in question regarding congressman Jefferson is a felony.

As far as the second part of the clause, the search warrant was not questioning congressman Jefferson's speech or debate in the House of Representatives. It was a legal process for gaining information about the actions of congressman Jefferson in accepting bribes when he wasn't engaged in speech or debate in the House.

I don't think any one - court, Congress, or the public - is prepared to buy into the argument that the bribery is so intertwined with Jefferson's speech and debate in the House that the search has the effect of questioning Jefferson's speech and debate. That amounts to a claim that members of Congress are exempt from crimes such as bribery on the basis that they spoke or debated a topic or issue, the purpose of which was to bring about the object of the bribery.

With the "plain language" of the Speech and Debate Clause out of the way, I'll close with a result of some of that mind-numbing research. Orin Kerr, a law professor at George Washington Univesity Law School apparently did some of it. He brings to light the United States Supreme Court's opinion in Gravel v. United States, 408 U.S. 606 (1972). In Gravel, the Court said the following:

[The Speech and Debate Clause] does not purport to confer a general exemption upon Members of Congress from liability or process in criminal cases. Quite the contrary is true. While the Speech or Debate Clause recognized speech, voting, and other legislative acts as exempt from liability that might otherwise attach, it does not privilege either Senator or aide to violate an otherwise valid criminal law in preparing for or implementing legislative acts. If [conduct of the member of Congress being investigated] would be a crime under an Act of Congress, it would not be entitled to immunity under the Speech or Debate Clause.

Saturday, May 27, 2006

Enron Verdict: Props to a Losing Attorney

After the verdict came in this week on Jeffery Skilling and Kenneth Lay for their part in the Enron fiasco, I watched some clips of the post-verdict press conference with Mr. Skilling and his attorney, Dan Petrocelli. And, I've just got to say, I have rarely been that impressed with how an attorney conducted themselves at a press conference after such a high-profile loss. Whether spontaneous or well-orchestrated, Mr. Petrocelli put on a school for how to handle a high-profile loss (and I'm assuming how to prepare your client to handle themselves as well). There were no harsh or abrassive words for the judge, the jury or the verdict. The most antagonistic words from Mr. Petrocelli regarding the outcome of the case were "We will have a full and vigorous appeal" and "Obviously it did not come out the way we had hoped. Doesn't change our view of what happened at Enron and certainly doesn't change our view of Jeff Skilling's innocence." For Mr. Skillings part, the most defiant thing he had to say was "Obviously, I'm disappointed."

It doesn't do a defendant any good for them or their legal team to throw a tantrum after a verdict. Judges tend to frown on that and it can come back to bite a defendant at sentence. But, I think the way this press conference was handled sets up an interesting scenerio for sentencing. It's one I've dealt with before - even as recent as a jury trial I had two weeks ago. It would not suprise me if the argument made at sentencing is that Mr. Skilling maintains that he, subjectively, believes that his actions were not carried out with any improper motive or intent but that he understands how a jury can reach that conclusion based on the evidence presented. On that basis, the defendant will profess his/her utmost respect for the jury's decision. A wise defendant then always claims that the lesson they've learned is to refrain from any actions that could be interpreted or misinterpreted as improper or criminal. Based on Mr. Skilling's defense and his testimony at trial, I don't think a judge will think Mr. Skilling is sincere if he does not maintain some semblence of a claim that he subjectively believes he did not commit a crime. So, the thing for Skilling to do is respectfully stick to his position while giving unconditional respect to the jury's verdict, express what lessons he learned from the incident, and, of course, beg for mercy.

Before I end, I will give a tip of the hat to Sean Berkowitz and the Enron Task Force that was responsible for the prosecution of the Enron mess. What a daunting task! The pressure to obtain convictions was, no doubt, tremendous. And, what a group of witnesses to have to rely upon to obtain a verdict. As my former boss once told me about such cases: you just hope the jury understands that when you cast a play in hell, you don't have angels for actors.

Thursday, May 25, 2006

Congressional Immunity From Search Warrants. Are They Serious? Part I

Congressional leadership is crying fowl because the FBI searched the office of a member of Congress pursuant to a search warrant. A search warrant. You know, one of those things issued by a judge - someone who is neither a member of the executive branch, nor the legislative branch; one of those things that requires, as a prerequisite to its issuance, that the executive branch provide evidence by oath or affirmation to support the conclusion that there is evidence of a crime located at the place to be searched; one of those things that requires the judge to independantly review the evidence presented by the executive branch and conclude that probable cause exists to believe that there is particularly-described evidence of a crime located at the place to be searched, a conclusion that must be reached before the warrant is issued.

The main complaint of the congressional leadership is that the acts of the FBI violate the constitutional principle of "separation of powers." It doesn't take much analysis to demonstrate why this claim is nothing more than grand standing without any basis in fact or law.

Let's start with the fact that the constitution creates three branches of government with each given separate and independant functions. This was to provide the crucial "checks and balances" that is part of our system of government. One of the primary functions delegated to the executive branch (of which the FBI and US Attorneys are a part) was the enforcement of laws. That includes the investigation and prosecution of criminal offenders. (In this case it is an allegation of bribery involving a member of Congress). Congress does not investigate and then prosecute violations of criminal laws; they pass those laws. So, what we have is the executive branch actually performing its obligation as it is delegated by the Constitution, the judicial branch performing its obligation as it is delegated to it by the Constitution by performing the warrant review and approval detailed in the Fourth Amendment to the Constitution, and the legislative branch be offended because the lawful functions of the other two branches are targeted towards one of Congress' members.

These members of Congress don't cite any provision of the Constitution that states Congress is exempt from the exercise of the powers delegated or inherent in the other two branches of government. That is because there are no provisions that would exempt members of Congress from the traditional and proper functions of the executive and judicial branches. Ironically, therefore, what these members of Congress are complaining about as a violation of separation of powers is actually the truly intended function of "separation of powers" in action. The complaints of these members of Congress really amount to an unsubstantiated argument that the Constitution exempts members of Congress from the actions of the executive and judicial branches if their actions involve issuance and execution of a search warrant on a congressional member's office.

Let's just call it like it is: It is not about violating the constitution. It is a beef about whether one branch of government (here the executive branch) exercised appropriate respect and restraint in relation to carrying out its responsibilities vis-a-vis another branch of government (here the legislative branch). I'm sure most of these members of Congress are simply concerned about the fact that there are politically sensitive items that are located in their various congressional offices. I'm sure that it might even be horrifying for them to think that any outside person (FBI or otherwise) could end up possessing politically sensitive materials. That concern I can completely respect, especially for those members of Congress for whom members of the executive branch have the proverbial "ax to grind."

I think we should let another facet of the "separation of powers" concept play out. The separate branches need to respect one another and use their best efforts to reach agreements that allow each branch to carry out its responsibility without interfering with or interference from the other branch. It is about sitting down at the table, being honest about the concerns, and pounding out an understanding that meets the needs of both branches.

President Bush (love him or hate him) made a smart political move by sealing the documents seized by the FBI and giving the branches an opportunity to agree on some procedures for handling this and future situations. I've read enough comments from some of the grandstanding members of Congress to think that they agree that sitting down at the table is the best political direction to follow.

I can't help but wonder what negative consequences will flow out of a situation where Congress continues to fight with the White House over this. I have not read anything to suggest that the warrant was not properly supported, reviewed, and issued. I have not read that any politically sensative materials were seized. So, what this Congressional defiance will end up looking like in the end is that members of Congress think they should be exempt from being investigated for criminal conduct to the extent the incriminating evidence is at their congressional office. I don't buy it. I can only hope that the American public wouldn't either. My unsolicited advice to the offended members of Congress: Take the opportunity to reach a protocol agreement for the service of future warrants.

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