Thoughts on Justice

A Pen Pal For Kimball Mason?

2006-06-30T07:58:00.000-06:00

Thanks to Grits for Breakfast, via the wretched of the earth, I might have found a pen pal for former Idaho Falls City Prosecutor Kimball Mason. It seems a now-former district attorney in Texas, Richard James Roach, was sentenced on June 26 for charges related to methamphetamine. Apparently, part or all of Roach's source was the evidence collected in cases he was prosecuting. Sound familiar? At the time of sentencing on the state charges, Roach was already serving time on federal charges f0r a firearm violations. Roach now has 18 years to serve on the state charges.

State charges mean state prison. Texas prison, in fact. So, I wonder if Mason and Roach could just skip the pen pal stuff and put in joint requests to be bunk mates in Texas.

A Stiff One For Ex-Judge?

2006-06-30T00:01:00.000-06:00

Former Oklahoma state judge Donald Thompson was convicted on June 29 of four counts of indecent exposure. Apparently, Thompson wasn't just exercising his discretion during court proceedings. According to his court reporter, she saw him expose himself several times and traced an unfamiliar "sh-sh" sound during proceedings to the judge. A police officer eventually noticed a penis pump in the courtroom. The conduct was alleged to have occured during four different trials.

The jury didn't recommend the stiffest penalty available. It recommended 1 year jail and $10,000 fine for each count. The offense also requires Thompson to register as a sex offender. Formal sentencing is set for August.

Thompson had also been charged with misuse of a state computer for allegedly keeping explicit photos of himself on his office computer. The probable cause affidavit is available online.

I can't help but think of the scene in Austin Powers: International Man of Mystery where Austin is struggling to disclaim association with the penis enlarging pump that was in his property box. I wonder if Thomas will be signing the pump out of evidence when he gets out of jail. And, I hope there weren't any errant "Ya Baby!" comments from the bench during any of these trials.

News link:
Ex-Judge Convicted of Indecent Exposure
Court TV coverage

Federal Magistrate Grants Odd Request By A.U.S.A.

2006-06-29T22:11:00.000-06:00

Here's a feel-good story out of Kentucky: Judge Donates Kidney To Ailing Prosecutor. Federal Magistrate J. Gregory Wehrman donated a kidney to Assistant U.S. Attorney E.J. Walbourn.

The only thing that has me scratching my head on this one is the suggestion that Walbourn may still be able to make limited appearances before Judge Wehrman. At least with Idaho state judges, it would arguably be a violation of the judicial cannons of ethics for Walbourn to continue to appear before Wherman because of the appearance or possibility of bias. However, maybe that wouldn't be a problem if Walbourn is appearing on an uncontested or stipulated matter. In any event, tip of the hat to Judge Wehrman.

On The LIGHTER Side Of Prison Life

2006-06-29T13:52:00.000-06:00

WATT the heck! I was doing a bit of lunch time net surfing and came across this article describing how an inmate in Pakistan had an operation to remove a light bulb from his anus. The only effort to illuminate anyone as to how it got there was the guy's story that someone must have drugged him and put it there. Hmmm. Maybe the guy just had another one of those brilliant ideas that went awry - like the one that put him in jail in the first place. Doctors emphasized how important it was to remove the bulb intact, stating that if it broke it could have made matters very complicated. G.E., ya think?

Bog Down In Blawg Town

2006-06-29T05:17:00.000-06:00

It has been a couple of weeks since I visited my Blogger dashbord to pop out a post. Work and "honey do-s" have kept me out of sight. But, I see can see a light, yes, light at the end of the tunnel. In other words, the weekend is coming. I really believe that I will be able to spend some quality time at the computer without my wife giving me that Are-you-going-to-spend-your-whole-day-on-that-thing? look. On second thought, maybe that's about 50% belief, 50% hope.

Anyway, I have five drafts of things I intended to put out in June, but haven't got them done. Many required some deeper thought or reflection; others a bit of research before I spouted my mouth off. Either way, I found myself getting bogged down in blawg town. Now I'm faced with a situation where some of the topics are really not all that timely. But, I've decided I'm going to put them out in the blogosphere anyway. Most of the topics are going to . . . suprise, suprise . . . cover my thoughts on issues and questions raised about prosecutors - their behavior, their ethics, their role in the big picture, etc.

By way of preview: I have a response to the post by the wretched of the earth, about an experience with prosecutors who laughed at a defendant that refused to take a deal and, subsequently, faced a crushing sentencing because he insisted on exercising his right to a trial. For Anonymous Law Student, I will finish a blawg piece I started back on June 6 about the Supreme Court's decision in Garcetti v. Ceballos , in which they discussed a deputy prosecutor's first amendment right (or, shall I say, lack thereof). I'll lay out my thoughts and predictions regarding South Carolina's legislation to qualify sex offenders for the death penalty. And, I'll throw out a post on that Duke U mess.

Better Butter, Better TV and Better Prices? What A Riot!

2006-06-12T05:36:00.000-06:00

As reported by KIFI in Idaho Falls:

85 Idaho inmates housed in a Texas jail are on lockdown after a non-violent protest Saturday morning. The inmates refused to return to their cells inside the building after completing recreation time outdoors at the Newton County Correction Center.The protest lasted for over seven hours.They demanded butter for rolls, more television channels and cheaper commissary prices. The warden said preliminary information indicates the prisoners were plaining their demonstration since arriving at the facility to protest their out-of-state transfer.Currently, there are over 400 Idaho inmates housed at the center.Offenders are being sent out of state because Idaho's prisons are full, and have been for several years.The Idaho Department of Corrections estimates 1,400 Idaho offenders will be incarcerated out of state by the year 2010.

In my "own private Idaho," I would like to see the Department of Correction and the Commission of Pardons and Parole issue a joint letter to all out-of-state prisoners that says the following: (1) all prisoners involved in the incident in Texas will have their parole eligibility dates moved back a minimum of two years, (2) all prisoners involved in the incident in Texas will be denied parole and will be required to "top their time out" if they are engaged in any further disobedient or riotous behavior, (3) any other out-of-state prisoners involved in any similar incidents will have their parole eligibility dates moved back, and (4) any additional prison time to be served will be served at an out-of-state prison. Prison isn't supposed to be vacation with room service. It's punishment. It makes me think even harder about Article VII of the Bill of No Rights I posted last week.

Arbitrary and Capricious recently posted a blawg entitled ID: Idaho inmates, Texas abuse, describing an allegation that at least one Idaho inmate had been handcuffed, beaten, and maced at the same Texas facility this last spring. Director Thomas Beauclair and an Idaho delegation flew down to Texas to investigate the incident. That is at least some indication that Idaho authorities take matters of safety and propert treatment of inmates seriously. The inmate involved stated in a letter to his sister that the treatment stopped once the Texas warden was notified and intervened. This emphasizes the fact that inmates should address concerns through proper channels. If the prison employees abused the inmates in a manner that warrants criminal charges, the investigation should be referred to the appropriate prosecution authority. If abuse occurs again, Idaho needs to consider moving the inmates to a different facility.

This latest act of defiance does not appear to be in response to the prior beating allegation. The prior problem also doesn't legitimize being petty about such things as more butter, more channels and cheaper commissary.

I do not feel sympathy for the inmates that get shipped to other states. I believe that when they decided to engage in criminal behavior, they were simultaneously giving up their right to choose what their living arrangements were going to be and for how long. I think it is incredibly unfortunate that Idaho is shipping inmates out of state. I understand that affects families, people who did not commit the crimes. And, it affects prosecutors too. I was recently informed by IDOC that I would have to pay $3,000 to $4,000 in order to get a prisoner back from Minnesota to testify in a robbery trial. But, like many things, being shipped out of state is something that inmates should have given some consideration to before they decided to engage in the criminal behavior that put them in prison. It is no secret that Idaho ships inmates out of state. It has been happening for years. Would-be criminals need to prepare for it. Out-of-state prisoners need to accept it.

Detroit 911 Dispatchers Charged

2006-06-11T05:13:00.000-06:00

Wayne County Prosecutor Kym Worthy has announced the filing of charges against Sharon Nichols and Terri Sutton. The two were dispatchers in Detroit on February 20, 2006, when Robert Turner, 5 years old, called 911 to report that his mother had collapsed and needed help. The boy was told tht he shouldn't play on the phone and was told he could get in trouble with the cops if he didn't stop. The boy called back 4 hours later. This time an officer was dispatched . . . but, not to assist to his mother. Rather, the dispatcher sent the officer officer to discipline the child and inform the mother that her son was making prank 911 calls. The mother passed away as a result of her medical condition. A civil suit was filed alleging that the mother would have lived had emergency personnel been dispatched in a timely fashion. Nichols received a five day suspension. Sutton received a three day suspension. Both have now returned to work.

The charges are for wilful Neglect of Duty, a misdemeanor. The maximum possible punishment for the offense is one year in jail. Audio files of the 911 calls, transcripts of the calls and a recitation of the criminal statute are available at the web site for the Detroit Free Press. There is also an article available online from the Detroit News.

I am going to be keeping an eye on this one mainly to see how the matter is handled by the prosecutor and the city. On the one hand you have the City administration's attitude about the matter, reflected in the fact that the dispatchers each received a suspension for less than a week and are back doing the same job. That would also seem to imply that the City administration does not believe that the dispatchers present an ongoing risk to the community if put back to work in the same positions. The actions of the CityAdministration may also reflect problems with the case against the dispatchers that the administration believes are more significant than the prosecutor does. However, it hard to make any definitive assessments about the City's handling of the matter. Police Chief Ella Bully-Cummings has declined to comment because the matter is still subject to an ongoing internal investigation. Apparently, the disciplinary action is not final and may be modified depending one what information is uncovered by the investigation.

On the other hand, the prosecutor seems to believe the actions or inaction of the dispatchers are signifacant enough to warrant criminal charges. According to the prosecutor, "Neither operator treated this as an emergency." The prosecutor refused to comment on whether the two should have been fired. But, he did state that, "They should not be taking 911 calls."

As a prosecutor, these types of cases are always present a mine field of problems. It will be interesting to see how this case is handled to control damage between the city police department and the prosecutor's office.

Other news links:

Boys Ignored 911 Call Lead To Charges

An Oldie But Goodie: The Bill of No Rights

2006-06-09T14:30:00.000-06:00

The following has apparently been attributed to State Representative Mitchell Kaye from Georgia. It has been around for a long, long time. I remember seeing this when I was just a political science major in college some twenty years ago.

THE BILL OF NO RIGHTS

We, the sensible people of the United States, in an attempt to help everyone get along, restore some semblance of justice, avoid any more riots, keep our nation safe, promote positive behavior, and secure the blessings of debt free liberty to ourselves and our great-great-great-grandchildren, hereby try one more time to ordain and establish some common sense guidelines.

We hold these truths to be self-evident: that a whole lot of people are confused by the Bill of Rights and are so dim that they require a Bill of No Rights.

ARTICLE I: You do not have the right to a new car, big screen TV or any other form of wealth. More power to you if you can legally acquire them. But, no one is guaranteeing anything.

ARTICLE II: You do not have the right to never be offended. This country is based on freedom, and that means freedom for everyone -- not just you! You may leave the room, turn the channel, express a different opinion, etc., but the world is full of idiots, and probably always will be.

ARTICLE III: You do not have the right to be free from harm. If you stick a screwdriver in your eye, learn to be more careful. Do not expect the tool manufacturer to make you and all your relatives independently wealthy.

ARTICLE IV: You do not have the right to free food and housing. Americans are the most charitable people to be found and will gladly help anyone in need. But, we are quickly growing weary of subsidizing generation after generation of professional couch potatoes who achieve nothing more than the creation of another generation of professional couch potatoes.

ARTICLE V: You do not have the right to free health care. That would be nice. But, from the looks of public housing, we're just not interested in public health care.

ARTICLE VI: You do not have the right to physically harm other people. If you kidnap, rape, intentionally maim, or kill someone, don't be surprised if the rest of us want to see you fry in the electric chair.

ARTICLE VII: You do not have the right to the possessions of others. If you rob, cheat or steal the property of other citizens, don't be surprised if the rest of us get together and lock you away in a place where you still won't have the right to a big screen color TV or a life of leisure.
ARTICLE VIII: You don't have the right to a job. All of us sure want you to have a job, and will gladly help you along in hard times. But, we expect you to take advantage of the opportunities of education and vocational training laid before you to make yourself useful.

ARTICLE IX: You do not have the right to happiness. Being an American means that you have the right to PURSUE happiness -- which by the way, is a lot easier if you are unencumbered by an overabundance of idiotic laws created by those who were confused by the Bill of Rights.

Now before I get any comments popping off about how I'm insensitive or a fascist, etc., etc., blah, blah, blah, please undertand that I read this Bill of No Rights to be merely a social commentary on issues facing our country. And, I will admit, for the most part, I'm too busy laughing about it to have really considered whether anyone might be offended or whether I really care that they would be. If you find it amusing, I'm glad you enjoyed. If you are offended, then, you need to lighted up and quit taking everything so seriously. You might also want to consider that the displeasure you are suffering from is one of the occassional ill side-effects of the real First Amendment.

When Justice Goes To The Dogs

2006-06-09T14:27:00.000-06:00

District Judge Norene Redmond was recently directed by the Michigan Supreme Court to quit bringing her dogs to work with her. The two terriers, Lurch and Lizzard, never came to court together but were otherwise allowed to roam in the main office away from the public, in the jury room if jurors didn't mind, and to sometimes sleep beneath the court bench. The judge would have employees take the dogs out to urinate.

This type of behavior creates a double standard. Judges require that parties treat courtroom attendance with appropriate seriousness and respect. There is a dress code; no cell phones; reading newspapers is frowned upon; if you need to have a prolonged conversation and you are not involved in the immediate hearing, take your gab session into the hallway. There are countless other rules of common courtroom etiquette. So, a judge bringing a dog into the courtroom is hypocrisy. Especially this judge who, according to some comments posted with the article from the Detroit News, had directed people to leave the courtroom and come back when they were appropriately attired. In fact, a sign outside the building reads: "Proper dress required (or you will be told to leave to change your clothes)." How can we expect parties, especially criminal defendants, to respect the court system if judges are lowering the bar on acceptable courtroom behavior or engaging in hypocrisy?

What makes things worse is that Judge Redmond states that she did not see a problem with her actions. She is either trying to white-wash her behavior or she really doesn't get it, making this particular "justice" truly blind - and not in a good way.

And, I found that this is not the only bout of questionable behavior with Judge Redmond. She also allows web surfers to vote on which criminals should be released from jail in order to deal with jail overcrowding. In an article from WZZM13 Online entitled Let 'Em Go? It's Your Call, the author states: "There's always something new on the Internet. Now you can sentence criminals in your pajamas." After reviewing the article, I'm not sure what purpose this "survey" serves other than to assist Judge Redmond to delegate her discretionary responsibility. I'm not really buying the motivate-people-to-come-up-with-ways-to-solve-the-jail-overcrowding answer she provided. Sounds to me like it is more a reason for criminals to go to myspace.com, obtain as many on-line friends as they can recruit, and run up as many votes as they can for themselves in order to win a night out on the town.

And, I'm not finished. Another article from the Macob Daily describes an incident where a defendant was before Judge Redmond for an arraignment on an attempted robbery charge. The defendant refused to approach the podium and talk when directed to do so by Judge Redmond. She threw him back in jail figuring he would be more willing to talk on Thursday. When the defendant reappeared before her, he again refused to talk. Judge Redmond stated: "You have enough of a vocabulary to stick a gun in a woman's ribs and tell her to give you her keys, but you can't talk here." Apparently, Judge Redmond does not comprehend what a Fifth Amendment right is. She also, apparently, does not know what the presumption of innocence is.

Oh well. Just another thing that has me shaking my head.

A Slice Of Judicial Economy With Chuckles On Top

2006-06-07T21:19:00.000-06:00

I take no credit for finding this gem. All credit goes to Minor Wisdom and May It Please The Court. I learned about this from reading their blawgs.

Here's the story: The lawyers to a civil dispute cannot agree on the place where depositions should be held. One party files a motion to have the court set the location for the depositions. So, the presiding federal judge, Gregory Presnell, makes the ingenous move of ordering the parties to settle the dispute through a game of paper, rock scissors. Winner gets to pick the deposition location.

The order is a real gas. It reads:

ORDER

This matter comes before the Court on Plaintiff's Motion to designate location of a Rule 30(b)(6) deposition (Doc. 105). Upon consideration of the Motion – the latest in a series of Gordian knots that the parties have been unable to untangle without enlisting the assistance of the federal courts – it is

ORDERED that said Motion is DENIED. Instead, the Court will fashion a new form of alternative dispute resolution, to wit: at 4:00 P.M. on Friday, June 30, 2006, counsel shall convene at a neutral site agreeable to both parties. If counsel cannot agree on a neutral site, they shall meet on the front steps of the Sam M. Gibbons U.S. Courthouse, 801 North Florida Ave., Tampa, Florida 33602. Each lawyer shall be entitled to be accompanied by one paralegal who shall act as an attendant and witness. At that time and location, counsel shall engage in one (1) game of "rock, paper, scissors." The winner of this engagement shall be entitled to select the location for the 30(b)(6) deposition to be held somewhere in Hillsborough County during the period July 11-12, 2006. If either party disputes the outcome of this engagement, an appeal may be filed and a hearing will be held at 8:30 A.M. on Friday, July 7, 2006 before the undersigned in Courtroom 3, George C. Young United States Courthouse and Federal Building, 80 North Hughey Avenue, Orlando, Florida 32801.

DONE and ORDERED in Chambers,

Orlando, Florida on June 6, 2006.

What a hoot! And, what a judicious way of settling the dispute. This judge probably saved the parties a bunch of money by eliminating what I can only imagine would have been one of those drawn-out, hard-to-control, bickering, whiny-laden, cross-accusation-making, both-sides-being unreasonable, hearings. I have been witness to far too many of those types of disputes as a judge's law clerk and as a lawyer sitting in the back of the courtroom waiting for my hearing to start. These types of petty motions are almost impossible to make a "well reasoned" ruling on. The decisions themselves usually end up being decided on some ground that is just as arbitrary as paper, rock, scissors. So, well done Judge Presnell! And, how symbolic - settling a childish dispute with a child's game.

This story is a reminder that lawyers can be prone to take things, and themselves, way too seriously. We need a story like this from time to remind us to lighten up and not to get so petty. Who knows, with a ruling from your judge, your dispute could get you national attention. And, I'm glad to see that there are judges that also recognize when its time to taker a lighter approach to their jobs.

Press link:

Court orders lawyers to play game

Window Bashing = Pro-Gay Bashing

2006-06-02T20:21:00.000-06:00

An interesting criminal justice news story: Someone in Idaho Falls took offense to a bumber sticker on a car that advocated against same-sex marriages. They beat up the car and left a note. I'm not sure what exactly the threating message said. But, I like to think it was something like: "Watch your bumper! If you keep driving around with this message, I'll be back. And, next time, I'll proceed to punch out your headlights. Or, worse, I'll bring a tire iron and break your hub caps."

News Link: Vandal's Break Car Window Because of Bumper Sticker

Problems Ahead For Convicted Former Prosecutor?

2006-06-02T18:32:00.000-06:00

Today police officers from the City of Idaho Falls Police Department executed a search warrant on the home of former City prosecutor Kimball Mason. The search warrant was sought after a yet-undisclosed source informed city police officials about the existance of firearms at Mason's home. Mason had previously indicated to investigators that law enforcement had recovered all the property that he had taken; the rest had been given away or discarded. The Idaho Falls Chief of Police stated that officers had recovered several firearms pursuant to the search warrant. Some of the guns that were recovered were among those Mason indicated were no longer in his possession. There were several other firearms that were found that law enforcement will now investigate to determine if they too were evidence illegally taken by Mason.

What does this mean for Mason? At least a couple of things. It could mean that the Court will relinquish its jurisdiction and Mason will serve out his prison term. In other words, Mason was sentenced to serve a fixed minimum 1 year to serve with the possibility of 4 years following that. The Court retained its ability, within the first 180 days, to suspend the sentence and place Mason on probation. That decision normally hinges on a defendant's performance and behavior while in the retained jurisdiction program at the prison facility in Cottonwood. However, this latest discovery contradicts Mason's assertion that he no longer had any of the illegally taken property. It could be (and I hope it is) devastating to his chances of having the court suspend the sentence and grant probation. What else could it mean? It also could mean that the Idaho Attorney General's office will move forward with filing additional charges based on the newly discovered evidence. Why would they do that? Because it shows that even after he was found out, Mason remained arrogant, unrepentant, greedy, etc., etc., etc. He's still pompous enough to think he can outsmart everyone and complete his caper. He is essentially taking a piss on Lady Justice's sandles. I hope she reacts by lifting her foot up, kicks him right where it hurts and drops him like a sack o' . . . uhm . . . potatoes.

News links:
Kimball Mason's House Searched
Search Warrant

KPVI has posted the documents from the investigation on their web site.

A Former Prosecutor Sentenced; A Current Prosecutor Outraged and Frustrated

2006-05-30T13:52:00.000-06:00

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.

Looking. But, No "Friendlies" In Sight.

2006-05-29T11:46:00.000-06:00

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.

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

2006-05-28T10:28:00.000-06:00

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.

Enron Verdict: Props to a Losing Attorney

2006-05-27T00:10:00.000-06:00

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.

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

2006-05-25T22:47:00.000-06:00

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.

Too Lazy or Too Stupid?

2005-12-23T10:07:00.000-07:00

One thing that bothers me about our society is that so many people are too lazy or too stupid to think through what the media is telling them. About everything of social or political value ought to be taken with a grain of salt - regardless of the source. There is a great experiment that I picked up on the way to earning a minor in Interpersonal Communication. Tape a white and black piece of paper and tape or glue them together back-to-back. Then, have two unsuspecting people face each other with their eyes closed. Put the paper up between them, ask them to open their eyes. Ask them each what color the page is. Of course, one will say "white" and the other "black." Start asking them to defend their position. What is all comes down to is that we instantly assume that what we are exposed to is the right answer or the only right answer. I worry that our society is becoming one in which people are either too lazy or too stupid to question what the media tells them. People really do buy into the "spin." I wish more people would queston what they hear and read on the media reports about what happens in the legal system. If so, they might find that only those with an agenda say the glass is half empty or half full. The reality is that it is both.

An Intro and an Overview

2005-12-23T00:11:00.000-07:00

This blog is for me to jot down some thoughts regarding the american criminal justice system. Being a local county prosecuting attorney and having spent time as a private attorney, public defender, and law clerk for a trial judge, I can assure you the media rarely portrays things fully or accurately. Let's face it: The media is an imperfect medium covering an imperfect and commonly misunderstood segment of our society. So, I'll use this blog to share and exchange ideas on criminal justice issues that I feel are not being accurately or fully portrayed by the media and other sources of information and debate. I hope you enjoy. And, please share any thoughts you have on a criminal justice issue that isn't getting reported fairly and accurately.