CONSTITUTIONAL & CIVIL RIGHTS / RULE-OF-LAW / REIN IN JUDICIAL IMMUNITY / JUDICIAL ACCOUNTABILITY /

Attorneys & Judges "In the News" for the Previous Week

HOME EMAIL

Eyes on the Judiciary
 

CLICK HEADLINES
TO READ FULL STORIES

Attorneys in the News
Click headline for full story


February 28--March 1, 2010

GENERAL

FTC to Appeal Ruling in 'Red Flags' Case

David Ingram, The National Law Journal

03-01-10 -- The Federal Trade Commission will appeal a ruling from October that stripped the agency of its authority to enforce new anti-fraud rules against lawyers. . . . The so-called "Red Flags" regulations are designed to prevent identity theft, and the FTC argues that the regulations must apply to all "creditors" in order to comply with federal law. The agency includes lawyers in its definition of "creditors" because lawyers frequently begin working for a client on credit, accepting payment some time later. . . . But the American Bar Association disputes that interpretation, citing a 2005 decision by the U.S. Court of Appeals for the D.C. Circuit that ended another attempt by the FTC to impose regulations on lawyers. The ABA also says the "Red Flags" rules would be costly for the operation of law firms nationwide.


Plaintiffs Lawyer's 'Reptile' Strategy Bites Back

Manual for plaintiffs lawyers advises focusing on jurors' survival instincts; co-author says strategy didn't apply to lost case

Andy Peters, Fulton County Daily Report

03-01-10 -- For $95, plaintiffs lawyers can buy a book that teaches them how to appeal to jurors' basic survival instincts, those that emanate from humans' "Reptilian" brains. . . . "When the Reptile sees a survival danger, she protects her genes by impelling the juror to protect himself and the community," write co-authors Don C. Keenan, an Atlanta plaintiffs lawyer, and David Ball, a North Carolina jury consultant. . . . But in a DeKalb County wrongful death trial last month, Keenan found that defense lawyers will also buy the book, "Reptile: The 2009 Manual of the Plaintiff's Revolution" -- and use it against him. . . . Representing a movie theater and a security company accused of not doing enough to prevent a fatal gang shooting in the theater parking lot, W. Winston Briggs and Matthew G. Moffett read from the book and referred to it during closing arguments.


Diversity Scorecard 2010

One Step Back / For the first time in years, the population of minority lawyers at big law firms is shrinking.

The American Lawyer, By Emily Barker

03-01-10 -- Large U.S. law firms became less diverse last year. That's the key finding to emerge from the latest version of our annual Diversity Scorecard, which counts attorneys of color in the U.S. offices of some 200 big firms. In each of the previous nine years that we've compiled the Scorecard, the percentage of minority attorneys at all participating firms increased, rising from less than 10 percent in 2000 to 13.9 percent in 2008. In 2009, for the first time, that proportion dipped, to 13.4 percent. . . . The drop in law firm diversity may be small, but it's important. Overall, big firms shed 6 percent of their attorneys between 2008 and 2009--and, amid the bloodletting, lost 9 percent of their minority lawyers. (Here and elsewhere in this story, we've calculated such percentages only for the 191 firms that provided numbers in both years, in order to have a consistent basis for comparison.) Diversity advocates call the drop a warning sign that shouldn't be ignored. "I think [that] when you're looking at any numbers of a population you're trying to increase, and you see a decrease, that's significant," says Venu Gupta, executive director of the Chicago Committee on Minorities in Large Law Firms. "I guess I hoped we wouldn't be going backward," echoes Fred Alvarez, chair of the American Bar Association Commission on Racial and Ethnic Diversity in the Profession and a Wilson Sonsini Goodrich & Rosati partner.


Republicans Slam Attorney General Eric Holder Over Terrorist Defense Lawyers at Justice Department

'Serious Concerns' About Obama Appointees Who Backed Gitmo Detainees

By Jonathan Karl, ABC News  

02-26-10 -- In an escalating war of words with Attorney General Eric Holder, Senate Republicans are raising "serious concerns" about political appointees at the Justice Department who previously worked on behalf of terror suspects. . . . The Republicans told Holder in a letter obtained by ABC News that "unanswered questions" about these political appointees "raise serious concerns about who is providing advice on detainee matters." The letter, signed by all seven Republicans on the Senate Judiciary Committee, also accuses the Justice Department of being "nonresponsive" and "intentionally evasive" to questions on this issue. . . . The Senators are demanding answers about these political appointees by March 12, when Holder is next scheduled to appear before the Senate Judiciary Committee. . . . "The Department's attorneys are subject to ethics and disclosure rules as required under both Department guidelines and this administration's own ethics rules, which are the strongest in history," Department of Justice Spokeswoman Tracy Schmaler said in a statement today. "In a week that this Department secured a guilty plea from Najibullah Zazi for attempting to attack the New York subway system and indicted two of his co-conspirators for their alleged role in the attack, it should be clear that fighting terrorism and keeping the American people safe is our number one priority."


DISTRICT OF COLUMBIA  

Plaintiff Seeks to Dismiss Age Discrimination Suit Against Crowell & Moring

Jeff Jeffrey, The National Law Journal

03-01-10 -- A federal judge shot down on procedural grounds Friday a former Crowell & Moring employee's effort to drop the age discrimination suit she had filed against the firm. . . . In July, Mona Saunders, 54, brought a $300,000 lawsuit alleging that she was fired after 18 years with Crowell because of her age. On Thursday, Saunders' lawyer filed a motion to voluntarily dismiss the suit. . . . But Judge Colleen Kollar-Kotelly of the U.S. District Court for the District of Columbia answered back that Ardra O'Neal of The O'Neal Firm no longer has the power to drop the suit on behalf of her client.


FLORIDA  

Suit: Law Firm, Medical Clinic Made Reciprocal Referrals

By Sarah Randag, ABA Journal

03-01-10 -- A Kentucky woman has filed a suit against a law firm and medical clinic that she says both deceived her and deprived her of her right to treatment by her own doctors. . . . Sharon Langford of Louisville, Ky., went to Tampa, Fla.-based Winters Yonker & Rousselle after she was injured in a car accident in 2008. She says in her suit that the firm told her that her health insurance wouldn't cover injuries suffered in car accidents, the Louisville Courier-Journal reported. She said the firm referred her to 1st Physician Rehabilitation Inc. for treatment and then later to a Florida clinic for surgery. . . . The suit says Langford later found out that both clinics had the same owner, Gary Kompothecras, who also owns the 1-800-ASK-GARY referral service, which sends callers seeking a lawyer to Winters & Yonker. Kompothecras' clinics don't accept health insurance, the Courier-Journal said. . . . Langford's lawyer, Sam Carl, said of the $200,000 settlement Winters & Yonker obtained for Langford, the firm received $70,000, the clinics received $64,518, and Langford received $62,738—which covered the medical expenses she incurred before hiring Winters & Yonker, according to the Courier-Journal.


Fla. Attorney Disbarred

By Jeff Gorman, Courthouse News Service

03-01-10 -- A Florida attorney was disbarred for falsely representing herself as counsel for a woman in jail to gain access to her car. . . . The Florida Supreme Court took the action against attorney Ann Bitterman. She had given a vehicle to a friend who later ended up behind bars. . . . Bitterman, whose legal license was suspended at the time, used her Florida Bar card to gain a private visit with the friend in jail. . . . Bitterman asked for an ownership interest in the car. The friend angrily refused.


Ex-longtime Barefoot Bay attorney faces state
disciplinary action

FLORIDA TODAY, Staff writer Lamaur Stancil contributed to this report.

03-01-10 -- The former longtime attorney for the Barefoot Bay Recreation District is facing disciplinary action from the state. . . . After several hearings into complaints filed by former clients, employees and law partners, a state-appointed referee has recommended a nine-month suspension from law practice for Richard Torpy, along with payment of disciplinary costs. . . . The proposed punishment, which must be approved by the Florida Supreme Court, takes into account Torpy’s 2004 probation for taking an improper loan from a client. . . . “The record in this matter shows that respondent has continued to engage on the same type of misconduct,” hearing referee Cynthia Cox wrote in a Feb. 14 report. “Respondent borrowed money from clients to pay a portion of the restitution.”


Fort Myers attorney admits guilt and others fix their mistakes

Melanie Payne • The News-Press

03-01-10 -- I don't know if stand-up behavior would completely eliminate the Tell Mel column, but it sure put a dent in what I have to write about. . . . Still, you would be surprised how often the right thing happens. Someone makes a mistake, apologizes and fixes it. I usually don't hear about it, and if I do, I don't usually write about it. But not today. . . . Attorney admits guilt / If this had been a leap year, attorney Joseph A. Troiano would have held a record with me, making my column three times in one month. . . . February, however, is a short month. And since this is likely the last time I write about Troiano, he'll be breaking no records with me. Except maybe for how fast he publicly agreed to the punishment for his misdeeds. . . . Last Thursday, the Fort Myers attorney was disbarred. He admitted to violating the rules of conduct for an attorney handling trust accounts. . . . Troiano agreed to cooperate with The Florida Bar's investigations that could get his clients reimbursed for their losses. If his clients are reimbursed through the Florida Bar's Clients' Security Fund for things Troiano did, he agreed to try to reimburse the fund the money paid to his former clients.


MASSACHUSETTS   

Accused of misconduct, prominent lawyer seeks to hold on to his license

By Jonathan Saltzman, Globe Staff

03-01-10 -- Two years ago, he was both lawyer and de facto press agent for the man who called himself Clark Rockefeller, flanking the owlish accused kidnapper in court, arranging jailhouse interviews between his client and reporters, and enthusiastically making the rounds on network and cable news shows. . . . Now Stephen B. Hrones, the well-known 68-year-old Boston criminal defense lawyer, is heading to the state’s highest court to fight to keep his law license, accused of letting a paralegal in his office pass himself off as a lawyer in the firm’s employment discrimination practice. . . . The state Board of Bar Overseers recommended in October that Hrones’s license be suspended for a year and a day for the alleged misconduct. The Supreme Judicial Court plans to hear appeals in May from Hrones, who says he deserves no suspension, and from the state’s bar counsel, which had recommended a two-year suspension.


Justice Department Settles Kickback Case With Troutman Sanders Partner

Posted by Brian Baxter, Am Law Daily

02-26-10 -- The former head of the real estate investments and capitalization practice groups at Troutman Sanders was one of five defendants to reach a $14 million civil settlement with federal prosecutors in Boston on Friday stemming from an alleged $50 million kickback scheme, according to an announcement by the Justice Department. . . . The settlement comes nearly four months after prosecutors filed civil claims against Troutman partner Leonard Grunstein, real estate investor Rubin Schron, and investment banker Murray Forman in connection to a $98 million civil settlement reached in November between the Justice Department and Covington, Ky.-based Omnicare, the nation's largest provider of pharmacy services to nursing homes.


MICHIGAN  

Divorcing couples leave out lawyers

Metro Detroit's economy cited for rise in do-it-yourself breakups

Catherine Jun / The Detroit News  

03-01-10 -- Breaking up is hard to do -- especially in a recession. . . . With depressed home values and a dicey job market, divorces in Metro Detroit are down, as unhappy couples ride out the financial storm, the theory goes. . . . But of those who do file for divorce, more are financially strapped and duking it out without attorneys, according to courts. These do-it-yourself divorces are crowding legal aid offices and court dockets and slowing proceedings with incomplete paperwork and tutorials judges must deliver from the bench. And as more couples represent themselves, many are losing out on property and custody claims that are legally theirs, judges and attorneys say. . . . Mark Switalski, chief judge of the Macomb County Circuit Court, said couples in his courtroom are fighting over division of home and credit card debts, a stark change from the battles over the division of home assets in years past. . . . "If I've got a pot of $100,000 to split up, it's different than if I've got a pot of $5,000 to split up," Switalski said. "That factors into their ability to retain counsel."


MINNESOTA   

Ex-county attorney charged in dressing room photo case

03-01-10 -- The man photographed by surveillance cameras after an incident in a Minneapolis dressing room is a former county attorney, according to police. . . . Former Morrison County Assistant Attorney Jeff Rolloff is accused of trying to take a photo of a woman while she tried on clothes at the Nu Look consignment store at 4956 Penn Avenue S. in November.


NEW JERSEY  

Accused NJ lawyer won't face death penalty

The Associated Press, phillyBurbs.com

02-28-10 -- Federal prosecutors won't seek the death penalty for a New Jersey defense attorney accused of arranging the murder of one witness and trying to set up the murder of another. . . . The decision in the case against Paul Bergrin, a former federal prosecutor, was made by U.S. Attorney General Eric Holder. Bergrin remains in the Metropolitan Detention Center in Brooklyn to await trial. . . . "Obviously, he's relieved," Lawrence Lustberg, one of Bergrin's attorneys, told the Asbury Park Press of Neptune. "He still recognizes that while the death penalty is off the table, his life is on the line. If he is convicted of a number of these allegations, he could spend the rest of his life in prison."


TEXAS  

Beaumont attorney pleads guilty to failing to file income tax returns

Scott Lawrence, KFDM-TV News

03-01-10 -- A Beaumont attorney who spent more than a decade in the U.S. Attorney's Office before going into private practice faces up to one year in federal prison and up to a $100,000 fine following a guilty plea Monday morning to once count of failure to file income tax returns. . . . According to the Justice Department, Olen Kenneth Dodd, 58, admitted that he knowingly failed to file income tax returns for calendar years 2002-2005 despite receiving gross income of: $373,931.60 in 2002; $267,735.00 in 2003; and, approximately $120,000.00 in both 2004 and 2005. The court hasn't set a sentencing date. . . . Dodd worked for the U.S. Attorney's Office in the Eastern District of Texas for about 13 years and hanadled primarily civil cases. He was based in Beaumont and opened a law firm here in 2000 after he left the U.S. Attorney's Office to go into private practice.


February 25--February 26, 2010

GENERAL

Malpractice Liability a Hot Topic at Health Care Summit

David Ingram, The National Law Journal

02-26-10 -- Thursday's televised "summit" on health care proved to be a new forum in which Republican lawmakers could press again for limits on medical malpractice awards, and another opportunity for the plaintiffs bar to play defense. . . . At the start of the meeting, taking place about a block from the White House, one prominent Republican listed a tort overhaul as one of his party's priorities. Sen. Lamar Alexander, R-Tenn., who is third in the U.S. Senate's GOP leadership, said there are too many "junk lawsuits against doctors." . . . "In our state, [in] half the counties, pregnant women have to drive to the big city to have prenatal health care or to have their baby, because the medical malpractice suits have driven up the insurance policies so high that doctors leave the rural counties," Alexander said.


DOJ Unit That Prosecutes FCPA to Bulk Up 'Substantially'

David Hechler, Corporate Counsel

02-26-10 -- Anti-corruption enforcement is bulking up. Already the acknowledged leader in global enforcement, the Department of Justice unit that prosecutes Foreign Corrupt Practices Act cases will soon grow "substantially," according to the lawyer who runs it. . . . Mark Mendelsohn, deputy chief of the fraud section's criminal division, said his section "may grow as much as 50 percent in size in the next year or two." At the same time, he added, he expects companies to play an increasingly aggressive role in thwarting corruption.


3rd Circuit Upholds Conviction of Former Rite Aid
General Counsel

However, judges agree that Brown, who is about halfway through a 10-year prison term, is entitled to a new sentencing hearing

Shannon P. Duffy, The Legal Intelligencer

02-25-10 -- A federal appeals court has upheld the conviction of Franklin Brown, the former general counsel of Rite Aid, on fraud and obstruction charges in connection with the $1.6 billion accounting scandal that sent half a dozen executives to prison and cut the company's stock price in half. . . . The unanimous three-judge panel rejected Brown's claims that both the prosecutors and judge had engaged in misconduct, and that secretly recorded tapes of his conversation with another executive had been tampered with. . . . But the appellate judges agreed that Brown, 82, who is now about halfway through serving his 10-year prison term, is entitled to a new sentencing hearing. . . . Third Circuit Judge Morton I. Greenberg said the order for a new sentencing is automatic because Brown's initial sentencing occurred during the window of time when the Supreme Court had cast doubt on the constitutionality of the federal sentencing guidelines, but had not yet declared that the guidelines are merely advisory.


Former Client Moves to Disqualify Fish & Richardson
From New Patent Case

Zusha Elinson, The Recorder

02-25-10 -- Here's the great thing about patent prosecution: It's a steady practice that can get your firm new clients. . . . Here's the bad thing: It's not that profitable, and it can conflict you out of lucrative pieces of patent litigation. . . . Patent firm Fish & Richardson is facing that issue right now in a case between new client 724 Solutions Inc. and former client Openwave Systems Inc. Fish did $300,000 worth of patent work for Openwave from 2000 to 2007, according to court filings. And now Openwave and its lawyers at Morgan, Lewis & Bockius want Fish disqualified from representing 724 in what stands to be a much juicier piece of litigation. . . . It's a constant challenge that faces the few patent boutiques like Fish that have patent prosecution and litigation practices. And it's why most big general practice firms don't have big patent prosecution practices.


ARKANSAS  

Lawyer has license suspended for 6 months

Associated Press, WXVT

02-26-10 -- An Arkansas Supreme Court committee has suspended the law license of an Izard County attorney for six months for avoiding a client. . . . The court's Committee on Professional Conduct also ordered Stephen L. Lewis to pay $5,600 in restitution and $50 in costs. The committee cited professional misconduct in Lewis' handling of a case involving damage to a motorcycle damaged while a potential buyer drove it in 2003.


CALIFORNIA  

Calif. Court Lets Bar Group Withhold Mailing List

Mike McKee, The Recorder

02-26-10 -- The San Fernando Valley Bar Association won a victory Wednesday that should be welcome news for all 270 of California's other voluntary bar associations. . . . In a suit involving a disbarred lawyer trying to get his mediation business off the ground, Los Angeles' 2nd District Court of Appeal unanimously held that such groups don't violate the state's Unfair Competition Law if they reject requests to buy their membership mailing lists. . . . And that's true, the court said, even if the associations simply want to protect some of their members from price competition.


Court lets blind grad use aids to take bar exam

Bob Egelko, Chronicle Staff Writer

02-25-10 -- With belated approval from a federal appeals court, a blind Bay Area law graduate is preparing to use computer-assisted reading devices on the state bar exam, despite a testing company's objections. . . . Hours after the exam began Tuesday, the Ninth U.S. Circuit Court of Appeals in San Francisco issued a brief order denying a request by the National Conference of Bar Examiners to stop Stephanie Enyart from using the accommodations that a federal judge approved for her last month. . . . The conference, a nonprofit company, makes multiple-choice portions of the bar exam that most states use. Enyart is not due to start the first of those sections until Saturday. . . . Enyart, 32, a law clerk at Disability Rights Advocates in Berkeley, suffers from macular degeneration and retinal dystrophy and was declared legally blind at 15. At UCLA Law School, where she graduated last year, she took tests on a laptop with software that magnified the text and read the words into earbuds.


DISTRICT OF COLUMBIA  

Capitol Hill couple get odd package with hefty street value

By Paul Duggan, Washington Post Staff Writer

02-26-10 -- What happened to Eric Anderson and Melanie Sloan in their Capitol Hill townhouse Monday night occurs quite often in the city. So to D.C. police, it was fairly routine. . . . As for Anderson and Sloan, though . . . well, imagine their surprise. . . . "I was making dinner," Sloan said. "And the doorbell rang." . . . It was a little after 6 o'clock, she said. When she opened the door, she saw a FedEx truck pulling away. On the doorstep was a roughly 2-by-2-foot box. She lugged it inside -- it was very heavy -- and left it on the floor. Then, thinking nothing of the package, she went back to the stove and stirred her risotto. . . . "We have an 11-month-old," said Anderson, her husband. "Sometimes somebody will send us a present, and we don't know what it is." . . . About 8 p.m., Anderson said, he opened the package, which proved to be no easy task. . . . Inside the box was another cardboard box, heavily taped. He said he cut open that box and found yet another, this one made of Styrofoam, also bound with clear plastic tape. "You start to think, 'Did someone send us something refrigerated?' "


Terrorists’ Lawyers at the DOJ

National Review Online Editors

02-25-10 -- The Obama administration promised Americans an era of unprecedented transparency in the operations of government. At his confirmation hearing and in subsequent testimony, Attorney General Eric Holder professed a desire to work openly and cooperatively with Congress. Given all that, why is Holder stonewalling Senate Republicans on their demand that he identify the political appointees in his Justice Department who have represented or advocated on behalf of the terrorists detained at Guantanamo Bay? . . . After months of delay, Holder finally deigned last week to provide a response that was more like a rebuke. He conceded that “at least nine” Justice Department officials had formerly represented the detainees. But even Holder admitted he was low-balling. He hadn’t, he said, made a complete survey of DOJ political appointees (i.e., the thing he was asked to do). Even if he had made the rounds, moreover, the number nine would have been an understatement. It counts only lawyers who directly represented the terrorists, not lawyers — like Holder himself — whose former firms volunteered their services to the detainees even if they did not personally do the work.


ILLINOIS  

Fitzgerald Makes Rare Court Appearance in Chicago Terrorism Case

Lynne Marek, The National Law Journal

02-26-10 -- U.S. Attorney Patrick Fitzgerald is taking on a courtroom role for the first time since he was the special prosecutor in the 2007 I. Lewis "Scooter" Libby trial in federal court in Washington, D.C. . . . Fitzgerald joined the prosecution team Wednesday at a court hearing in the case against two alleged terrorists at the U.S. District Court for the Northern District of Illinois. David Headley and Tahawwur Hussain Rana were indicted last year on charges that they conspired with the terrorist organization Lashkar-e-Taiba in plans to kill employees at the Danish newspaper that published drawings of Allah and that they helped in reconnaissance missions for the 2008 attack in Mumbai. . . . In the nine years that Fitzgerald has led the U.S. attorney's office in Chicago, he has rarely argued in court. The last time came during the 2002 prosecution of Enaam Arnaout, who prosecutors alleged was linked to al-Qaida and charged with racketeering and other offenses. Arnaout pleaded guilty the following year before going to trial.


LOUISIANA   

Jefferson Parish attorney placed on administrative leave

Reported by: Val Bracy, Reporter, FOX 8 News WVUE-TV     

02-25-10 -- Two Jefferson Parish attorney's, including the parish attorney himself, have been been placed on paid leave. The other attorney, Anne Marie Vandenweghe, filed a Whistleblower protection lawsuit and now her suspension has peaked the interest of federal investigators. . . . Parish President Steve Theriot placed Wilkinson on paid administrative leave on Thursday morning. . . . "I can't really discuss why, but I put him on leave this morning," said Theriot. . . . Wilkinson is under investigation by the parish Personnel Board. Board members believe he may have violated a parish law that prohibits most employees from engaging in political activity. Wilkinson declined to comment on his suspension. . . . "I found 10 years worth of documentation that showed Tom Wilkinson was either an officer or the campaign manager for the Tim Coulon election campaign between 1999 and 2009," said Rafael Goyeneche.


MICHIGAN  

Guilty: Former city attorney sex assault plea

Carl Gabrielse gets six months in prison

By Megan Schmidt, The Holland Sentinel  

02-25-10 -- The former deputy attorney for the city of Holland could lose his license to practice law after pleading guilty to a felony sex charge on Wednesday. . . . For now, Carl Gabrielse’s attorney’s license will likely remain suspended until a state attorney grievance commission begins discipline proceedings. . . . “The discipline could be anything from a public reprimand, which doesn’t interfere with the ability to practice law but is a public notice you’ve done something improper, up to revocation of the license,” said Patrick McGlinn, senior associate counsel for the Attorney Grievance Commission, an arm of the Michigan Supreme Court that handles allegations of attorney misconduct. ***** He admitted to sexually assaulting a 21-year-old Zeeland woman in a Holland District Court bathroom after telling her he would reduce her charge in exchange for sex.


NEVADA  

Attorney Admits to Felony Obstruction

By Nick Divito, Courthouse News Service 
02-25-10 -- An attorney pleaded guilty to felony obstruction of justice in what federal prosecutors call a network of doctors and lawyers who protected doctors from malpractice suits and shared kickbacks from legal settlements. Noel Gage, 71, entered his Alford plea before U.S. District Court Judge Justin Quackenbush. . . . His co-defendant, Howard Awand, also made a plea agreement, and is set for a change of plea hearing in March. . . . Gage was charged with one count of obstruction of justice for concealing documents from the grand jury investigating the case, the U.S. Attorney's Office said. As part of the plea agreement, conspiracy and fraud counts against Gage will be dismissed. . . . Gage also agreed to return $702,600 in attorney's fees to a woman who said she was a victim of fraud.


NEW HAMPSHIRE  

Bankruptcy case stretches law firm

By Daniel Barrick, Monitor staff

02-26-10 -- Since two Lakes Region investment firms abruptly shut their doors last year, dozens of former investors have claimed the closures caused them severe financial strain. Add another name to that list: the law firm handling the companies' bankruptcy case. . . . Donchess & Notinger, the Nashua law firm appointed to help the trustee overseeing the bankruptcy of Financial Resources Mortgage and CL&M, said in court filings yesterday that the case has "created financial hardship for the firm." So far, the firm has rung up nearly $250,000 in legal fees and expenses from the case, according to the court filings. . . . Donchess & Notinger yesterday asked the judge in the case to authorize the payment of half that amount. But it could be a while before that money is forthcoming. Both Financial Resources Mortgage and CL&M, which officials say managed a massive Ponzi scheme, closed their doors with virtually no cash in their accounts. And since the companies closed in early November, Donchess & Notinger have recovered just $60,000 in loan payments from some of the companies' borrowers and their former law firm. . . . The firm "has spent a lot of time working through the tangled web of transactions and transfers set up by CL&M and (Financial Resources Mortgage) to further its Ponzi scheme," the firm's request said.


NEW JERSEY  

Montclair lawyer is charged in Internet sex sting after detective poses as 14-year-old girl

By James Queally/The Star-Ledger

02-25-10 -- A 58-year-old man was arrested Wednesday and charged with trying to set up a sexual encounter with someone who he believed was a 14-year-old Queens girl he met over the internet, but was actually a New York City detective, authorities said. . . . Barry Schrager, 58, of Upper Montclair, was arrested Wednesday and charged with second-degree attempted sexual assault, second-degree attempted criminal sexual act, first-degree attempted dissemination of indecent material to minors and attempted endangering the welfare of a child, according to Queens District Attorney Richard A. Brown. . . . Investigators said Schrager sent several sexually explicit instant messages to the detective, whom he believed was 14-year-old girl, between Jan. 25 and Feb. 23.


Lawyer Arrested in His Home Claims Civil Rights Breach

Henry Gottlieb, New Jersey Law Journal

02-25-10 -- As an in-house counsel for the city of Newark, N.J., in the 1970s, Edward Petit-Clair defended police officers accused of civil-rights violations. Now he knows what it's like to be a plaintiff. . . . On a wintry evening two years ago, Petit-Clair was about to take a shower in his home in an over-55 community in Brick Township, N.J., when officers with drawn guns barged in. They had seen suspicious signs that suggested a burglar who had been plundering homes in the neighborhood was inside the house. . . . Half-naked, but armed with a pistol, the 68-year-old Petit-Clair engaged in a tense standoff in the darkened house until he could see that one of the intruders was a K-9 officer. Later he was led away in handcuffs and charged with making a terroristic threat and possessing an illegal rifle accessory. . . . A judge dismissed the charges two months later. It was all a mistake.


OHIO  

Lawyer suspended for $32,600 theft

Columbus man stole money from check-casher trust for almost 2 years

By James Nash, The Columbus Dispatch

02-26-10 -- The Ohio Supreme Court yesterday suspended the law license of a Columbus lawyer who was found to have stolen $32,600 from a check-cashing business he represented. . . . James D. Thomas, a lawyer since 1988 who specializes in debt collection, admitted that he misappropriated at least $32,600 from funds that he held in trust for a client, Checkcare Systems, according to Supreme Court filings. . . . Another of Thomas' clients had been tardy in paying him, so the lawyer wrote 38 unauthorized checks to himself from the trust account between October 2004 and June 2006, the court's disciplinary counsel wrote. . . . Thomas did not attempt to reimburse Checkcare until the company sued him, and he later defaulted on the repayments, according to court filings. . . . Supreme Court justices unanimously suspended his law license indefinitely, finding that Thomas' conduct reflected poorly on the legal profession.


PENNSYLVANIA  

Judge Upholds Arbitration Award in Partner Retirement Dispute

Gina Passarella, The Legal Intelligencer

02-26-10 -- A Philadelphia judge declined to vacate an arbitration award in a case brought against Schnader Harrison Segal & Lewis by a retired partner over interpretations of amendments to the partnership agreement. . . . In Stuntebeck v. Schnader Harrison, retired partner Clinton Stuntebeck asked Senior Judge Esther R. Sylvester to toss an arbitration award that found Schnader Harrison's changes to its pension plan, in which the firm moved away from a formula and lifetime benefits to a capped yearly payment and 10-year limit on payouts, was applicable to Stuntebeck.


Judge admonishes Bonusgate attorneys about behavior

By Tracie Mauriello, Pittsburgh Post-Gazette

02-25-10 -- Dauphin County Common Pleas Judge Richard A. Lewis admonished attorneys for "rude, discourteous, obstructive and even obnoxious behavior" during the ongoing Bonusgate government corruption trial and threatened them with fines or imprisonment if they don't behave. . . . "Any offensive behavior . . . will be grounds for contempt and sanctions," he told attorneys this morning before jurors entered the courtroom. . . . The warning came after nearly four weeks of bickering among attorneys, sometimes in the presence of jurors. . . . "The combativeness . . . must cease immediately," Judge Lewis told attorneys. He also warned them to stop "glaring" and "staring" at jurors and to stop intimidating and shouting at witnesses.


TEXAS  

D.A. Abusing His Power?
By Tak Landrock, KRDO

02-26-10 -- El Paso County District Attorney Dan May is coming under fire for making calls to top officials trying to get them to close a medical marijuana dispensary near his home. . . . Pure Medical opened its doors two months ago near Delmonico and Rockrimmon on the northwest side of Colorado Springs. Kevin Donovan, an attorney for the dispensary, tells NEWSCHANNEL 13 the landlord of the building, where his client rents, got a call last month from Mr. May asking who was renting the space. . . . "The landlord was a little intimidated that the district attorney would be calling about a tenant," says Mr. Donovan. . . . NEWS- CHANNEL 13 had been told Mr. May placed calls to the chief of police, code enforcement and regional building in efforts to get the medical marijuana dispensary closed down for violating city code enforcement laws. . . The Internal Revenue Service was also called, but the agency won't say why they placed a visit to the dispensary.


VIRGINIA  

Beach lawyers' contempt convictions thrown out

By Tim McGlone, The Virginian-Pilot 

02-26-10 -- The Virginia Supreme Court on Thursday threw out the contempt convictions of two Virginia Beach lawyers and their law clerk, saying that a Circuit Court judge failed to give them their due process rights. . . . The contempt case against Claude Scialdone, his one-time law partner Barry R. Taylor, and their former clerk Edward S. Jones dates back to a 2006 criminal trial before Virginia Beach Circuit Court Judge Patricia L. West. . . . West found the three in contempt after they offered into evidence a document that had been altered and had the Internet username "westisanazi" printed at the top.


WEST VIRGINIA   

Lawyer who beat client with baseball bat indicted

By Gary A. Harki, Charleston Gazette Staff writer        

02-25-10 -- The lawyer who beat his client with a baseball bat on Charleston's East End was indicted on charges of malicious wounding, embezzlement and obstructing justice by a Kanawha County grand jury Thursday, said Kanawha County Prosecuting Attorney Mark Plants. . . . Plants said Joshua Robinson was indicted first on a charge of embezzlement for allegedly stealing more than $1,000 from his client David Lee Gump II, then on the malicious wounding charge for beating him with a baseball bat when Gump came to his house to confront him about the missing money. . . . After police started looking into the beating, police said, Robinson lied to them about the incident, attempting to manipulate the testimony of a witness. Plants said that led to the indictment on obstructing justice. The embezzlement and malicious wounding charges are felonies, the obstructing justice charge is a misdemeanor, he said.


February 23--February 24, 2010

GENERAL

A Prosecutor's Perspective on the Fraction of Criminal Cases That Go to Trial

Posted by Eric Lipman, Legal Blog Watch  

02-23-10 -- D.A. Confidential, a refreshingly candid, well-written and insightful blog by Travis County Assistant District Attorney Mark Pryor (that should cover me if I ever get a ticket for jaywalking, the worst offense I'd ever even consider committing here in my adopted hometown), has a good post this morning attempting to explain why so few cases, particularly misdemeanor cases, get to the "The people may call their first witness" stage. Unlike on TV, where a trial is not only a foregone conclusion, but also usually happens within two Pepsi commercials of arrest. . . . The percentage is shockingly low, at least based on Pryor's own experience. Of the 500 to 600 cases he estimates he's resolved as a prosecutor, he can count the number of trials on one hand (assuming he has five fingers, which I have no reason to doubt). The reasons for the low number, though, are the real meat of the post, and worth thinking about. Among them, prosecutorial discretion intelligently exercised.


CALIFORNIA  

79-year-old earns degree from McGeorge School of Law

Thomas held off on agreeing to a newspaper interview until she landed the job she was seeking at a Reno law firm, where she will work on legal issues involving the elderly.

By Blair Anthony Robertson, The Sacramento Bee   

02-23-10 -- Alice Thomas had the audacity to enroll in law school at an uncommonly old age, the perseverance to remain as her longtime companion battled and eventually succumbed to Alzheimer's disease, and the tenacity to endure setbacks that included academic probation before finally graduating from McGeorge School of Law. . . . Now, at age 79, she is the oldest graduate in McGeorge history and one of the oldest lawyers-to-be the nation has ever known. And she owes a ton of money she borrowed to pay for her education – money she will begin repaying after she takes the California or Nevada bar exam this summer and, with any luck, begins life as a rookie lawyer at age 80. . . . Yes, she's determined. Yes, she's stubborn, and yes, finally, she is done with law school.


DISTRICT OF COLUMBIA  

AG Holder Defends Prosecution of Terror Suspects in Civilian Court

Mike Scarcella, The National Law Journal

02-23-10 -- Attorney General Eric Holder Jr. struck back at critics Tuesday, declaring that the denigration of civilian federal courts to prosecute terror defendants "flies in the face of the facts" and is more about politics than independent analysis of cases. . . . "What I have tried to make over these many months, and I think fairly consistently … is that our federal civilian criminal justice system has the ability to incapacitate terrorists, has the ability to gain intelligence from those terrorists and is a valuable tool in our fight against terrorism," Holder said at a press conference at Main Justice. "To take this tool out of our hands, to denigrate the use of this tool, flies in the face of the facts, flies in the face of the history of the use of this tool. It is more about politics than it is about facts."


From Patton Boggs to Afghanistan and Back Again

Brian Baxter, The American Lawyer

Frank "Gus" Biggio

Patton Boggs attorney

02-23-10 -- While his peers spent the past few months worrying about billing the requisite hours and keeping their desk jobs, Maj. Frank "Gus" Biggio helped build a forward operating base and kept his eyes peeled for IEDs.

Biggio, a Marine Corps reservist and fourth-year associate in Patton Boggs' Washington, D.C., office, recently returned to the firm after spending seven months leading a civil affairs unit in Nawa, a restive region in southern Afghanistan where Marines are currently taking part in an offensive called Operation Moshtarak. . . . Biggio returned to the U.S. in December, and spent about a month wrapping up his reserve time. He returned to Patton Boggs three weeks ago, almost 10 months after he left the firm to return to active duty. (Prior to serving in Afghanistan, Biggio's unit spent three months training and preparing to deploy.) . . . Not surprisingly, corporate transactional work and counterinsurgency warfare have some slight differences. But Biggio, 38, is handling reintegration to law firm life in stride. . . . "It's good to be busy, because that keeps me occupied," he says. "But I don't spend nearly as much time walking here at the firm as I did over there."


FLORIDA  

Prominent Miami Receiver Charged in Multimillion-Dollar Fraud

Federal prosecutors allege that Lewis Freeman, who surrendered to the FBI on Tuesday, defrauded as many as 250 clients

John Pacenti and Jose Pagliery, Daily Business Review

02-24-10 -- Lewis Freeman -- with a bawdy joke at the tip of his tongue -- often could be found around lunchtime at his favorite downtown Miami restaurant, La Loggia. . . . The impeccably dressed attorney and forensic accountant who literally wrote the manual on court-appointed receiverships insisted on sitting at a front table, glad-handing the very judges who appointed him to pinch pennies for companies that ran into trouble. . . . But the larger-than-life man was charged Tuesday with abusing his position of trust for nearly a decade. . . . For many of his friends, it was heartbreaking to learn he was accused of skimming $2.6 million from court-supervised accounts under his control and misappropriating $6 million in those accounts. The single count of mail fraud conspiracy carries a maximum 20-year prison sentence.


Scott Rothstein's Former Partners Still Refuse to Disclose E-Mail Passwords

Julie Kay, Daily Business Review

02-24-10 -- Two former partners at Scott Rothstein's defunct law firm have refused to turn over access to their off-site computer and e-mail files and will face a court order to force them to do so. . . . U.S. Bankruptcy Judge Raymond Ray, who is overseeing the Rothstein Rosenfeldt Adler bankruptcy and wind-down, said at a hearing Tuesday that he will compel Russell Adler and Robert Buschel to surrender their passwords to the RRA firm's e-mail and computer file system administered by Burbank, Calif.-based Qtask. The request was made by bankruptcy trustee Herbert Stettin. . . . Berger Singerman attorney Chuck Lichtman, who represents Stettin, said he sought the order to look for potential evidence of Rothstein's $1.2 billion Ponzi scheme and hidden assets. He guessed federal prosecutors also would be interested in reviewing the files once he has obtained them.


Tension Flares Over Distribution of Seized Rothstein Assets

Jordana Mishory, Daily Business Review

02-23-10 -- Victims of convicted fraudster Scott Rothstein's $1.2 billion Ponzi scheme are elbowing each other to get the first crack at seized assets. And now, federal prosecutors and the bankruptcy trustee are going at it as well.

The U.S. Attorney's Office and Herbert Stettin, the bankruptcy trustee dismantling defunct law firm Rothstein Rosenfeldt Adler, are fighting over restitution plans for an estimated 350 victims of Rothstein's fraud. . . . The two sides met Feb. 12 in hopes of finding a way to work together. But attempts at behind-the-scenes collaboration immediately sputtered, according to a government motion Friday decrying "inflammatory statements" by the trustee's side.


GEORGIA  

State ordered to give attorneys to poor inmates

By Bill Rankin, The Atlanta Journal-Constitution

02-23-10 -- Calling the right to counsel "unqualified and unconditional," a Fulton judge on Tuesday ordered the state to provide attorneys to indigent inmates, some of whom have been waiting years for representation to file their appeals. . . . Superior Court Judge Jerry Baxter said these inmates must be supplied counsel within 30 days. The judge also granted class-action status to the lawsuit filed in December. Attorneys litigating the case estimate that as many as 400 inmates could need lawyers to file appeals by the end of the year. . . . "The court is mindful of the budgetary constraints faced by [the state defendants]," Baxter said. "However, the duty to provide a legal defense to those whose liberty is at stake and who cannot afford an attorney is unqualified and unconditional, and it does not give way in times of economic distress."


KANSAS  

Atty. gets 4 years for tax fraud

By The Capital-Journal

02-24-10 -- A Lenexa-based attorney has been sentenced to 48 months in federal prison for preparing fradulent tax returns, U.S. Attorney Lanny Welch announced Wednesday. . . . Scott L. Ruther, 49, an attorney who operates Ruther and Associates, LLC, pleaded guilty to two counts of preparing false tax returns, Welch said. . . . In his plea, Ruther said he devised a scheme using Roth IRAs that he claimed would allow his customers to reduce their individual federal tax liability.


MARYLAND   

Former Managing Partner Gets 99 Years in $25M Investment Scheme

By Martha Neilhttp://www.abajournal.com/?ACT=49&vars=YToyOntzOjg6ImVudHJ5X2lkIjtzOjU6IjI0NzkzIjtzOjk6IndlYmxvZ19pZCI7czoxOiIxIjt9, ABA Journal

02-24-10 -- When Edward Digges Jr. bilked one of his best clients at Digges Wharton & Levin out of $3.1 million in an overbilling scheme, he served two years in federal prison after pleading guilty in 1990 to mail fraud. He also was fined $1 million and wound up with a $3.6 million civil judgment against him. . . . But despite being disbarred, the former managing partner of the now-shuttered Annapolis, Md., law firm went on to another money-making project. From his waterfront home in Cambridge, Md., he persuaded investors nationwide to pony up $25 million for a share of the revenue Digges supposedly generated through leased point-of-sale terminals used by retailers to process credit and debit card transactions, reports the Baltimore Sun.


MASSACHUSETTS   

Cohasset lawyer among dead in Florida bus crash

By Richard Weir, Boston Herald

02-24-10 -- An elderly Cohasset lawyer was killed and his wife seriously injured when their tour bus rolled over on a cultural sightseeing excursion in Florida Monday. . . . Family members had urged John and Dolores Roy to go on the trip, telling them they didn’t have to stay for the funeral of their son’s mother-in-law, said the Rev. John Mulvehill, pastor of St. Anthony’s Church in Cohasset. He said the parish is “stunned” by the loss of a beloved, prominent member. . . . “John was an outstanding man. He was a Eucharistic minister at our parish, not just at our church, but bringing communion to people’s homes,” Mulvehill said. . . . “He was a very dedicated husband and father and was very well respected in the community,” Mulvehill said. “And he had a great sense of humor. He would always come in with a new joke.” . . . John, 79, and Dolores, 77, were greatly anticipating their six-day jaunt with the Boston-based educational travel service Exploritas, but nearly called the trip off because of the pending funeral, Mulvehill said.


Judge Rules Not to Impose Sanctions on Boston Federal Prosecutor

Sheri Qualters, The National Law Journal

02-23-10 -- Chief Judge Mark Wolf of the District of Massachusetts ruled not to sanction Assistant U.S. Attorney Suzanne Sullivan for failing to disclose exculpatory evidence in a timely fashion despite his doubts that new government discovery training programs for prosecutors would succeed. . . . Wolf's Friday, 23-page order in U.S. v. Jones explained his reasoning, and his reservations, about not imposing sanctions on Sullivan or the U.S. Attorney's Office for the District of Massachusetts for Sullivan's prosecutorial misconduct. . . . Wolf cited Sullivan's participation in several U.S. Attorney's Office and U.S. Department of Justice training programs and "independent efforts to educate herself on her discovery obligations." Wolf also said Sullivan's violation of the defendant's rights was "unintentional rather than deliberate" and that she's "not likely to commit comparable errors in the future.


MICHIGAN  

Former deputy city attorney Carl Gabrielse sentenced to six month jail term in sex assault case

By John Tunison | The Grand Rapids Press

02-24-10 -- Carl Gabrielse, the former Holland deputy city attorney accused of offering a reduced drunken driving plea in exchange for sex with a woman, will spend six months in jail as part of a plea agreement entered today in Ottawa County Circuit Court. . . . The deal could keep Gabrielse off the state sex offender registry if he completes a year of probation and sex offender counseling. . . . Gabrielse, 31, was set for trial Thursday involving the November allegations that he sexually assaulted a 21-year-old Zeeland woman in a jury room bathroom at the Holland courthouse. He was charged with third-degree criminal sexual conduct and misconduct in office.


MONTANA  

Former attorney pleads guilty to fraud

Associated Press, Great Falls Tribune

02-24-10 -- A former Billings attorney who was sentenced to prison for stealing money from clients in 1987 has admitted doing it again. . . . Marvin E. “Toby” Alback pleaded guilty Tuesday to wire fraud and bankruptcy fraud for misappropriating money from clients for his own use. He appeared before U.S. Magistrate Judge Carolyn Ostby. . . . Prosecutors say Alback took a mortgage payment from a client in a bankruptcy case, along with a $557 tax refund check that should have gone into the bankruptcy estate.


Mont. lawyer who traveled 2.5M miles for Ohio-based motorcycle club admits inflating expenses

By Associated Press, Los Angeles Times

02-23-10 -- A Montana lawyer and motorcycle enthusiast has pleaded guilty in Ohio to stealing $100,000 from the American Motorcyclist Association. . . . Dal Smilie apologized Monday for humiliating his family and the AMA, the nation's biggest motorcycle membership organization. . . . The 62-year-old Smilie is a former chief lawyer for the Montana Department of Administration and was a member of the Ohio-based motorcycle group's board of directors for 25 years.


NEVADA  

Gage wrist-slapping wise move for attorneys, victim

John L. Smith, Las Vegas Review

02-24-10 -- The government pinned the tail on another donkey Tuesday in U.S. District Court. . . . This time it was attorney Noel Gage's turn to stand before the bar of justice, do the hee-haw routine and agree to be speared in the wallet in the government's fading investigation of case-fixing involving local physicians and personal injury lawyers. . . . After battling the U.S. attorney to a standstill in a previous trial, Gage listened to his defense attorneys and wisely agreed to enter an Alford plea. An Alford allows Gage to enter a technical guilty plea and admit the government's facts could result in conviction, in this case to a single obstruction of justice count, but he also gets to maintain his innocence. Essentially, he's guilty with an asterisk.


NEW YORK  

Murder Probe Spawns Charges in $1 Million Conspiracy

Slain attorney's clients alleged to be among the victims of a series of financial scams

Mark Fass, New York Law Journal

02-24-10 -- In July 2008, Brooklyn, N.Y., attorney Mark Schwartz and his wife Christina Petrowski-Schwartz, a divorce mediator, were found shot dead -- "execution-style," according to the tabloids -- in their bed in their Marine Park home. . . . Monday, the Brooklyn district attorney's office announced the indictment and arrests of four defendants who, along with the couple themselves, allegedly operated a million-dollar criminal conspiracy (pdf) involving money laundering, identity theft, mortgage fraud and larceny. . . . The investigation into the murders remains ongoing, and the prosecution has not alleged a direct link between the conspiracy and the deaths. . . . Rather, the district attorney's office said the murder probe led to the discovery of the crime ring. . . . According to the indictment filed Monday, four individual defendants -- Robert Delvicario, Lennox Johnson, Shanda Bruce and Thermine Remy -- joined the couple in a series of scams in order to steal and launder money from, among others, the couple's clients.


Former lawyer offered plea bargain in client theft case

By Oliver Mackson, Times Herald-Record

02-24-10 -- Prosecutors have made a plea-bargain offer to a former lawyer from Middletown who was charged last month with stealing from clients. . . . The offer calls for F. Daniel Blizard, 53, to plead guilty to grand larceny, serve six months in Orange County Jail and report to a probation officer for five years. . . . Blizard's been free on his own recognizance since his indictment was unsealed Jan. 15, charging him with a single felony count of third-degree grand larceny. . . . The Middletown native's lawyer hasn't returned calls about the case. If Blizard accepts the plea bargain, which could happen as early as his return to court on March 16, it could shed more light on what he's accused of doing. . . . The indictment doesn't name victims or specific acts, but according to other court records and interviews, Blizard is accused of taking more than $3,000 in client funds from an escrow account between April 29 and May 29 of last year. The money was placed in the account during a negotiation for the sale of a home in the Town of Mount Hope. The would-be seller was Margaret Burnham, and the would-be buyer was Anthony McGee, who was negotiating to buy the house from Burnham.


NY Political Power Broker Disbarred

By Vesselin Mitev | New York Law Journal | New York Lawyer

02-24-10 -- Raymond B. Harding, the onetime political power broker who pleaded guilty last year to pocketing $800,000 in state pension fund fees in exchange for supporting ex-Comptroller Alan Hevesi, was disbarred yesterday by a Manhattan appeals panel. Matter of Harding, M-5202. . . . Mr. Harding was the leader of the state's Liberal Party from 1983 to 2002.


NORTH CAROLINA  

Jaeger pleads guilty to obstruction of justice

by Juli Denning, Garner News 

02-22-10 -- Almost a year of speculation involving the legal community ended on Monday when Cynthia Jaeger faced Superior Judge Henry Hight and pleaded guilty to 10 counts each of felony obstruction of justice and altering official case records. . . . She was sentenced to at least three years in prison and ordered to pay a $25,000 fine. . . . Jaeger, Johnston's former assistant district attorney, was indicted last year along with court clerk Portia Snead, defense lawyers Chad Lee, Lee Hatch, Jack McLamb and Vann Sauls on charges that they altered court records and and knowingly used illegal dismissal forms to get traffic cases against at least 36 people dropped from the court system. . . . Jaeger was charged with three indictments containing three felony counts (obstruction of justice) and two misdemeanor counts(failing to perform duty of office) and one presentment containing 81 misdemeanor counts (failing to perform duty of office). . . . According to the indictments against her, 70 dismissal forms with her signature were filed after she left her position as an assistant district attorney in September 2007. The dismissal forms were filed for clients of the four attorneys who were also indicted. Records show that Snead was indicted for deleting the attorneys names from at least two cases from the computer system.


TEXAS  

Two challengers try to unseat Kaufman County district attorney accused of DWI

By Karel Holloway / The Dallas Morning

02-24-10 -- An arrest on a charge of driving while intoxicated last year is the only real issue with the Kaufman County district attorney, the incumbent and his opponents said. . . . Incumbent Rick Harrison was arrested in June and charged with driving while intoxicated for the second time. He pleaded not guilty and a hearing is set for March 12 – 10 days after the Republican primary. . . . "It's the only issue in the race," said Harrison, 47. "If improving the DA's office and having a 100 percent conviction rate, the support of law enforcement, taking steps to correct the personal problem that hasn't affected performance a jog is not enough, then the voters will let me know that." . . . Opponents Andrew Jordan and Mike McLelland agreed that Harrison has done a good job, though both said there still are improvements to be made.



  Back to Top

Judiciary in the News

Click headline for full story


UNITED STATES SUPREME COURT

SCOTUS 2010 News & Views

SCOTUS  Spring 2010 Decisions


February 28--March 1, 2010

FEDERAL COURTS

Don't Ask, Don't Tell, Don't Push It

The Obama administration rides the brakes on legal challenge

Amanda Bronstad, The National Law Journal

03-01-10 -- President Obama insists he is determined to repeal the federal law that requires lesbian and gay service members to remain silent about their sexual orientation on pain of discharge. Some -- if by no means all -- of the top Pentagon brass agree the law should go. So does the chairman of the Senate Armed Services Committee. . . . Yet when the government's lawyers appeared for a hearing in federal court in Riverside, Calif., on Feb. 18, it was to defend the so-called "Don't Ask, Don't Tell" law against a constitutional challenge -- or at least argue for leaving it alone for now. . . . "There has been a lot of movement" toward repealing the law, Assistant U.S. Attorney Paul Freeborne acknowledged under questioning by U.S. District Judge Virginia Phillips, who is reviewing a constitutional challenge to the measure. Still, Freeborne saw that "movement" as cause for delay, not capitulation. He asked the judge to postpone the proceedings in light of the political developments but insisted: "We continue to defend the statute."


85-Year-Old Sculptor Prevails in Copyright Case Against Government

Zach Lowe, The American Lawyer

03-01-10 -- Frank Gaylord, now 85, won a government-sponsored contest to sculpt a memorial to Korean War veterans in Washington, D.C., all the way back in 1990. The memorial he eventually built, which you can see here, drew the attention of John Alli, a retired U.S. Marine and an amateur photographer. In 1995, Alli took hundreds of photographs of the memorial on a snowy day and eventually produced a single, haunting photo. In 2002, the federal government paid Alli $1,500 to use his photo as the basis for a 37-cent postage stamp. . . . Got all that? In 12 years, we went from sculpture to photo to stamp, and Gaylord, who served as an Army paratrooper in World War II, got essentially nothing along the way, court records show. In 2006, Gaylord, living then as now in Vermont, walked into the law offices of Primmer Piper Eggleston & Kramer in Burlington, Vt., and inquired about suing the government for copyright infringement. Partners remembered that one of their law school classmates, Heidi Harvey, worked for the IP powerhouse Fish & Richardson in Boston, and they suggested Gaylord work with her.


Deadline Extended Again for $1 Billion Settlement in Indian Trust Fund Case

April 16 is new deadline for congressional authorization of huge settlement in 'Cobell' case

Mike Scarcella, The National Law Journal

03-01-10 -- For the second time, the Justice Department and the lawyers representing a class of Indians in a long-running federal suit in Washington, D.C., have agreed to push back the deadline needed to secure congressional authorization for a $1.41 billion settlement. . . . The original deadline for congressional approval of the settlement was Dec. 31. But Congress failed to act, and so the deadline was extended to Feb. 28. . . . Now, the lawyers have agreed to a new deadline: April 16. The Justice Department issued this statement: "In order for the agreement to remain valid after its existing February 28, 2010 legislative enactment deadline, the parties have agreed to extend that deadline through Friday, April 16, 2010."


Universal May Have to Pay the Piper Over Takedown of Dancing Baby

Zusha Elinson, The Recorder

03-01-10 -- Universal Music might have to pay for pulling video of a dancing baby off YouTube.

U.S. District Judge Jeremy Fogel ruled late Thursday that Stephanie Lenz can get some limited recompense from the music label for ordering YouTube to drop a 29-second video of her son dancing to the music of Universal artist Prince. . . . Lenz still must prove her case before collecting anything. But it appears to be the first answer to the question of how an apparently ill-brought takedown notice should be punished under the Digital Millennium Copyright Act. . . . "The decision is significant as the first one to construe the question of how broadly the terms damages and fees should be construed under the DMCA," wrote Ian Ballon, Internet law expert at Greenberg Traurig, in an e-mail.


Shockingly NEW!!!

Attorneys & Judges Involved in Sexual Misconduct


DOJ Defends Document Request Targeting Deloitte

Mike Scarcella, The National Law Journal

03-01-10 -- The U.S. Department of Justice has turned to a federal appeals court in Washington, D.C., in the hope of forcing the accounting firm Deloitte LLC to turn over tax-related documents that government lawyers say are not protected by the work product privilege. . . . DOJ Tax Division lawyer Judith Hagley made the government's pitch Friday before a three-judge panel of the U.S. Court of Appeals for the D.C. Circuit. Chief Judge David Sentelle and Judges Thomas Griffith and Janice Rogers Brown made up the panel. . . . Last year, U.S. District Judge Richard Leon of the District of Columbia ruled for Deloitte and Dow Chemical Co., which asserted privilege over the documents the Justice Department is seeking via subpoena. As part of a civil tax suit in federal district court in Louisiana, the government is seeking certain documents that Dow turned over to Deloitte during the firm's audit of the company.


US Appeals Court Reinstates Suit Claiming Injury from Exploding, Hot Sandwich

By Debra Cassens Weisshttp://www.abajournal.com/?ACT=49&vars=YToyOntzOjg6ImVudHJ5X2lkIjtzOjU6IjI0ODQ1IjtzOjk6IndlYmxvZ19pZCI7czoxOiIxIjt9, ABA Journal

03-01-10 -- A federal appeals court has reinstated a $2 million lawsuit that claims a Florida carnival operator was injured by a McDonald’s chicken sandwich that was so hot it exploded with hot grease. . . . Plaintiff Frank Sutton claims the grease from the sandwich purchased at a Virginia truck stop burned his lips and face, the Associated Press reports. U.S. District Judge Claude Hilton of Alexandria, Va., had dismissed the case before jurors began deliberations, saying there was no evidence of negligence. Hilton also said Sutton was at fault by failing to make sure the sandwich was not too hot to eat, the story says.


MISSISSIPPI  

Lawsuit vs. judge proceeds

Mendenhall man says jurist made false claims to authorities

Jimmie E. Gates • Jackson Clarion Ledger

02-28-10 -- A federal judge has refused to throw out a lawsuit against a sitting county judge accused of knowingly making false claims to authorities. . . . U.S. District Judge Tom Lee last week rejected Hinds County Judge Houston Patton's assertion that as a judge he could not be held liable. . . . James Jennings Jr. of Mendenhall filed the lawsuit in 2008 against Patton and former Hinds County District Attorney Ed Peters. . . . The lawsuit revolves around a 1997 incident in which Patton accused Jennings and Jennings' attorney, J. Keith Shelton, of trying to bribe him over a complaint Jennings filed against Patton with the Mississippi Commission on Judicial Performance, the state's watchdog group for judges. . . . Jennings and Shelton were indicted but never tried. The charges eventually were dismissed


MISSOURI  

Wentzville judge says he won't hear some cases

Prosecutor wants Carter to remove himself from all speeding, DWI cases

By Steve Pokin, SuburbanJournals

02-28-10 -- Wentzville Municipal Judge Michael Carter has agreed to stop hearing speeding and driving while intoxicated cases in his courtroom when requested to do so by the city's prosecutor. . . . Carter said he reviewed a Missouri Supreme Court rule brought to his attention by municipal prosecutor Douglas Smith and now agrees with Smith that the rule applies to municipal courts and requires a judge to grant without question a first request for a new judge made by a defendant or prosecutor. . . . Carter said last week he will remove himself from such cases while he personally faces the same charges of speeding and DWI. Carter was ticketed by a state trooper Dec. 6 in St. Peters for allegedly speeding and driving while intoxicated. He was formally charged Jan. 28. His attorney has said Carter might have been speeding but was not driving while intoxicated. . . . Smith asked Carter in municipal court Feb. 9 to assign a DWI case and a speeding case to a different judge. Smith wants Carter to remove himself from all speeding and DWI cases.


NEW YORK  

Justice Department Settles Kickback Case With Troutman Sanders Partner

Well-regarded lawyer on New York real estate scene took leave of absence from Troutman after civil allegations arose

Brian Baxter, The American Lawyer

03-01-10 -- The former head of the real estate investments and capitalization practice groups at Troutman Sanders was one of five defendants to reach a $14 million civil settlement with federal prosecutors in Boston on Friday stemming from an alleged $50 million kickback scheme, according to an announcement by the Justice Department. . . . The settlement comes nearly four months after prosecutors filed civil claims against Troutman partner Leonard Grunstein, real estate investor Rubin Schron and investment banker Murray Forman in connection with a $98 million civil settlement reached in November between the Justice Department and Covington, Ky.-based Omnicare, the nation's largest provider of pharmacy services to nursing homes. . . . Prosecutors had accused Omnicare of engaging in a kickback scheme with nursing homes and drug makers. In the wake of the Omnicare settlement, prosecutors filed a 32-page complaint against Grunstein, Forman and Schron. Grunstein and Forman served as advisers to Schron -- an owner of the Woolworth Building in Manhattan -- on his acquisition of Mariner Health Care, a nursing home company that did business with Omnicare.


New York University Wins Fee Bid for Preserving Assets From Hedge Fund

Daniel Wise, New York Law Journal

03-01-10 -- New York University is entitled to recover legal fees for battling to preserve the remaining assets of a hedge fund from which a prominent New York financier pumped hundreds of millions of dollars into Bernard Madoff's Ponzi scheme, a Supreme Court justice in Manhattan ruled last week. . . . Justice Richard B. Lowe III found, over the opposition of the New York attorney general's office, that the benefit NYU conferred on investors in the $1.3 billion Ariel Fund was "of such a great measure" that it would be "inequitable" not to compensate its attorneys.


New York Is Ordered to Move Mentally Ill Out of Group Homes

By A. G. Sulzberger, New York Times

03-01-10 -- New York State must immediately begin moving thousands of people with mental illness into their own apartments or small homes and out of large, institutional group homes that keep them segregated from society, a federal judge ordered on Monday. . . . The decision by Judge Nicholas G. Garaufis of Federal District Court in Brooklyn followed his ruling in September that the conditions at more than two-dozen privately run group homes in New York City violated the Americans With Disabilities Act by leaving the approximately 4,300 mentally-ill residents isolated from the outside world in warehouse-like conditions. . . . The remedial plan offered by Judge Garaufis, which drew from a proposal presented by advocates for the mentally ill and was backed by the Justice Department, calls on New York to develop at least 1,500 units of so-called supportive housing a year for the next three years. In supportive housing, a resident lives alone or in small groups and receives specialized services from counselors who visit as needed. . . . The judge said that only people with the most severe mental illness, including those deemed a danger to themselves or others, should be housed in group homes. He also said that residents who were eligible for supportive housing may choose to stay in group homes as long as they have been apprised of their options.


OHIO  

Drunken Judge Remains On Bench After Domestic

North Country Gazette

02-28-10 -- The Supreme Court of Ohio has imposed a one-year license suspension against Cuyahoga County Juvenile Court Judge Joseph Russo but stayed the suspension with conditions for violations of the Code of Judicial Conduct arising from two separate incidents in which Russo was convicted of disorderly conduct as a result of physical altercations with a girlfriend. . . . In its per curiam opinion, the Court noted that Russo admitted the charged misconduct and stipulated that a dependency on alcohol was a significant factor in the incidents that resulted in his criminal convictions. 


PENNSYLVANIA  

Mounting debt surrounds suspended senior judge

By Michael R. Sisak (Citizens Voice Staff Writer)

03-01-10 -- Senior Judge C. Joseph Rehkamp has amassed nearly half-a-million dollars in debt with carefree splurges on a sports car and jewelry and a $218,000 bailout for a daughter and a son-in-law who owed taxes on a failed business, according to court documents obtained by The Citizens' Voice. . . . Rehkamp, who has been off the bench since he was charged last month with attacking his wife, at their Plymouth Township home, has already stopped meeting one costly obligation: alimony payments to his former wife, Kerry Ragette Rehkamp. . . . Rehkamp, 61, has missed three consecutive payments, each worth $2,342, and last week claimed his post-arrest suspension limited his income so severely that he could no longer comply with the terms of the 2005 divorce that ended a 39-year marriage. . . . The suspension eliminated Rehkamp's $5,500 per month senior judge salary, forcing him to live only on the $3,400 per month he draws from the state pension he amassed over 16 years as a Court of Common Pleas judge in Perry and Juniata counties, his attorney Samuel L. Andes said in a court filing.


February 25--February 26, 2010

FEDERAL COURTS

7th Circuit Judges May Testify in Retrial Over Web Threats

Lynne Marek, The National Law Journal

02-26-10 -- Federal prosecutors are beefing up their case against Web radio talk show host Harold "Hal" Turner, charged with encouraging listeners to murder three federal appellate judges. In Turner's retrial, which starts next week in Brooklyn, N.Y., prosecutors plan to call those judges to the stand. . . . Last week the prosecutors, who work in the U.S. Attorney's Office in Chicago, overcame objections from Turner's lawyer, Michael Orozco, and won permission to have the three judges from the 7th U.S. Circuit Court of Appeals in Chicago provide testimony, according to documents filed in the case. The targets of Turner's vitriol were Chief Judge Frank Easterbrook, Judge Richard Posner and Judge William Bauer, a former U.S. Attorney in Chicago.


Former Madoff Aide Charged With Conspiracy, Securities Fraud

David B. Caruso, The Associated Press

02-26-10 -- Bernard Madoff's claim to have pulled off his multibillion-dollar swindle without assistance fell apart further Thursday, as one of his longtime aides was charged with helping him cook the books. . . . Daniel Bonventre, an accountant who worked for Madoff since the late 1960s, was arrested early Thursday morning at his home in Manhattan, authorities said. He faces conspiracy, securities fraud and tax charges. . . . The 63-year-old was also sued Thursday by the Securities and Exchange Commission. The SEC accused Bonventre of falsifying records both to disguise Madoff's fraud and illegally enrich himself. . . . Bonventre said nothing to reporters after making his initial court appearance on the charges in the afternoon. A judge freed him on a $5 million bond, secured by $2 million in assets. His attorney, Andrew Frisch, declined to comment.


7th Circuit Finds Paxil Manufacturer Didn't Meet
Burden to Pre-empt

Lynne Marek, The National Law Journal

02-26-10 -- A lawsuit against SmithKline Beecham Corp. over the suicide of 23-year-old Tricia Mason, who ended her life two days after taking the antidepressant Paxil, can go forward, the 7th Circuit ruled this week. . . . In a unanimous Tuesday decision reversing the lower court, the appeals court said that the drug manufacturer now known as GlaxoSmithKline didn't meet its burden of showing with "clear evidence" that the Food and Drug Administration would have rejected a change in the drug's labeling to warn about the enhanced possibility of suicide in young adults.


Federal Judge Dismisses FTC's Antitrust Claims Over Delay in Generic Drug's Rollout

Sheri Qualters, The National Law Journal

02-26-10 -- An Atlanta federal judge's dismissal of the Federal Trade Commission's antitrust claims against several pharmaceutical companies that delayed a generic drug's market rollout through a settlement is a setback for the agency's opposition to such deals. . . . On Monday, Judge Thomas Thrash Jr. of the Northern District of Georgia dismissed the FTC's antitrust claims against the companies in In re AndroGel Antitrust Litigation. Thrash's order also dismissed the antitrust claims of the indirect purchasers, i.e., consumers. He dismissed some, but not all, of the antitrust claims made by direct purchasers, including retailers and wholesalers.


Toyota Grilled Over Lobbying Efforts, Ties to Regulators

David Ingram, The National Law Journal

02-25-10 -- Lawmakers fired questions Wednesday at two Toyota executives about whether the company's lobbyists are too cozy with government regulators and whether those relationships slowed down the response to complaints about the automaker's safety record. . . . The hearing, the second on Capitol Hill this week, also served as a forum for lawmakers to debate proposals related to the U.S. tort system. One Democrat warned Toyota Motor Corp.'s president, Akio Toyoda, that the automaker should expect significant losses as a result of products liability lawsuits. . . . "You will be called upon under our system to pay compensation," said Rep. Paul Kanjorski, D-Pa. Customers, he added, cannot "just forgive these companies and let them kill our people."


Judge: Disclosure Obligation in Terror Trial Applies to
Top DOJ Officials

Ruling comes in case of first Guantanamo detainee to be moved from military commission system to Article III court for trial on terrorism charges

Mark Hamblett, New York Law Journal

02-25-10 -- Prosecutors must produce memos by high-ranking U.S. Department of Justice officials on the transfers of an accused terrorist because they might explain why he was kept out of the criminal justice system for almost five years, a federal judge has ruled. . . . Southern District of New York Judge Lewis A. Kaplan, in an opinion unsealed Wednesday, ruled on Jan. 21 that the discovery obligations of prosecutors extend to the memos because Justice Department officials can rightly be considered part of the "government" within the meaning of Rule 16 of the Rules of Criminal Procedure. . . . The ruling came in the case of Ahmed Khalfan Ghailani, the first Guantanamo detainee to be moved from the military commission system to an Article III court for trial on terrorism charges. . . . The judge's decision in United States v. Ghailani, S10 98 Crim.1023 remained sealed for the last month until it could be vetted by a court security officer charged with heading off the inadvertent or intentional disclosure of national security information. The procedure is part of protective orders signed by the judge in the case pursuant to the Classified Information Procedures Act.


7th Circuit Worries -- but Not Too Much -- About Insurer Influence in Attorney Fees Case

Lynne Marek, The National Law Journal

02-25-10 -- The 7th U.S. Circuit Court of Appeals reversed two lower court decisions on the awarding of attorney fees in a decision last week consolidating three cases in which private parties sought fees after they prevailed over the U.S. government. . . . The appeals court also took a stand for the first time on whether an insurance company's paying for litigation should make a difference in the awarding of fees. . . . The three cases were brought under the Equal Access to Justice Act, which allows the granting of fees to parties of limited means "unless the court finds that the position of the United States was substantially justified," said the unanimous Feb. 18 decision written by Judge Richard Posner in U.S. v. Thouvenot, Wade & Moerchen.


ARIZONA  

Autopsy: Judge died of hypothermia

By James Gilbert, Sun Staff Writer

02-25-10 -- An autopsy conducted on Justice of the Peace David Cooper found the judge's cause of death to be probable hypothermia, due to exposure to the elements. . . . According to Dr. Eric Peters, deputy chief medical examiner for the Pima County Coroner's Office, Cooper also had a slightly enlarged heart, which may have been a contributing factor. . . . "An enlarged heart is potentially an unstable heart," Peters said. "Someone with an enlarged heart who is exposed to the stress of the cold could succumb quicker than someone with a normal-sized heart." . . . The body of the 64-year-old judge was found outside his residence the morning of Dec. 12. According to Yuma police, his body was discovered at about 7:50 a.m. by someone who was passing by his home. . . . With the autopsy now complete, the Yuma Police Department has also closed its investigation into the death. . . . "Nothing criminal was found," said YPD spokesman Sgt. Clint Norred. . . . Hypothermia, or abnormally low body temperature, is the condition in which the body loses heat faster than it can produce heat in cold weather.


CALIFORNIA  

Supreme Court Rejects Appeal of Woman Forced to Share Daughter with Lesbian Ex-Partner

By Peter J. Smith, LifeSiteNews.com 

02-25-10 -- US Supreme Court has rejected the appeal of a Texas mother challenging her former lesbian partner’s claim to be the second parent of her daughter, reports the San Francisco Chronicle.  . . . Kristina S. had conceived her now six-year-old daughter Amalia through artificial insemination during her domestic partnership with lesbian Charisma R. However, Kristina left the partnership three months after her daughter’s birth. . . . The former partner initiated a legal challenge to gain visitation rights, but her case was not considered by state judges until the California Supreme Court ruled in 2005 that homosexual partners involved in the process of conceiving and raising their partner’s child had legal rights as “co-parents.” . . . Charisma had not seen the little girl for five years when an Alameda County judge in California ordered that visits commence based on the state high court’s ruling. . . . Since the US Supreme Court refused to review the case, the decision of California’s First District Court of Appeal will stand that Christina is the legal “co-parent” and has visitation rights.


FLORIDA  

Cohen accused of abusing judicial power

South Florida Business Journal

02-25-10 -- Florida’s Judicial Qualifications Commission on Thursday notified Broward County Circuit Court Judge Dale C. Cohen that he faces charges he violated his position as a sitting judge and abused his judicial power. . . . The charges stem from a case in which a defense attorney asked Cohen to step down from a criminal case he was handling because of the defense attorney’s involvement in a lawsuit against his wife, Mardi Levey Cohen, who was running for judge. . . . Cohen refused to recuse himself and instead held an evidentiary hearing in which he was the chief interrogator, according to the commission. . . . “Your purpose in holding the hearing was to intimidate [attorney Stephen Melnick] and, in doing so, you used the courtroom and the power of your office to advance the interests of you and your wife,” the commission wrote in its notice. “Your conduct was an abuse of your judicial power, an abuse of your office and was an improper use of your office for personal gain.”


MICHIGAN  

Ex-Detroit Mayor Argues He Can't Make Restitution Because 'Burgers and Beer' Aren't Enough

Tresa Baldas, The National Law Journal

02-25-10 -- Former Detroit Mayor Kwame Kilpatrick says there's good reason he can't afford to make a $79,011 restitution payment he owes from the text messaging scandal: He has to maintain a high-class lifestyle for his job. . . . That contention is at the heart of an emergency motion Kilpatrick filed this week with the Michigan Court of Appeals in an attempt to postpone a probation-violation hearing. Kilpatrick, who owes a total of $1 million in restitution, is scheduled to be arraigned on Friday for failing to make a $79,011 payment by a Feb. 19 deadline. . . . His lawyer, Daniel Hajji of Attorneys of Michigan in Farmington Hills, Mich., contends that Kilpatrick doesn't have the money and that, to earn it, he must "function in the upper echelons of society."


NEW YORK  

Judge Declines to Upset $22.5 Million Jury Award in Polio Case

Mark Fass, New York Law Journal

02-26-10 -- A New York state judge has refused to throw out the $22.5 million verdict awarded by a Staten Island jury in a 28-year-old polio vaccine suit. Last year, the jury found Pfizer Inc., as successor to Lederle Laboratories, liable for negligent manufacture of the oral polio vaccine from which plaintiff Dominick Tenuto allegedly contracted polio while changing his infant daughter's diapers in 1979. . . . Justice Joseph J. Maltese on Staten Island declined to set aside the verdict. "This was a unique case for which there does not exist comparable facts or awards within this state.


OHIO  

Ohio Supreme Court sanctions Juvenile Court Judge Joseph Russo but allows him to remain on the bench

By Michael Sangiacomo

02-25-10 -- The Ohio Supreme Court suspended a juvenile court judge's law license for a year on Thursday, but stayed the suspension. . . . As long as Cuyahoga County Juvenile Court Judge Joseph Russo complies with the terms of the agreement, he will be permitted to stay on the bench. Russo must complete an alcohol recovery program in which he has been enrolled for almost two years. . . . Russo, 52, of Olmsted Township,was suspended for violations of the Code of Judicial Conduct because of two separate convictions for disorderly conduct stemming from fights with a girlfriend. . . . In Thursday's decision, the Supreme Court adopted previous findings by the Board of Commissioners on Grievances & Discipline that Russo's conduct was in violation of ethical canons.


PENNSYLVANIA  

Judge attorney: Reinstatement of charges unusual

By Edward Lewis, Wilkes Barre Times-Leader Staff Writer      

02-26-10 -- An attorney for Senior Judge C. Joseph Rehkamp, accused of assaulting his wife, called the reinstatement of domestic violence charges an unusual occurrence. . . . Luzerne County prosecutors approved the refiling of simple assault and harassment charges against Rehkamp, 61, on Tuesday, a week after District Judge Donald Whittaker dismissed the case when the judge’s wife, Valerie Rehkamp, 50, opted not to testify at a preliminary hearing. . . . “This refiling has nothing to do with Mrs. Rehkamp, who has made it clear to the commonwealth and the lower court that she did not want to testify,” attorney William Costopoulos said. “She wanted the charges dismissed and wanted to make an effort to work on the marriage or end it amicably. . . . “Once District Judge Whittaker issued his judicial ruling, the matter should have been left up to Mr. and Mrs. Rehkamp,” Costopoulos added. “If it was anybody else than Judge Rehkamp, there wouldn’t be a refiling. This is pretty unusual.”


Philadelphia Jury Finds for Wyeth in Hormone Replacement Therapy Case

The verdict disrupts the streak of plaintiffs' wins before Philadelphia Common Pleas Court juries in HRT mass tort cases

Amaris Elliott-Engel, The Legal Intelligencer

02-25-10 -- After more than six hours of deliberation, a Philadelphia jury unanimously returned a defense verdict Wednesday in a lawsuit alleging that a hormone replacement therapy drug caused breast cancer in an Indiana woman who died of the disease. . . . The verdict in favor of drugmaker Wyeth came because the jury found a lack of factual causation of Cheryl Foust's disease by her use of the HRT drug Prempro. . . . The defense in Foust v. Wyeth, however, did not get all of the answers it wanted on the questions presented to the jury. . . . The jury found that Wyeth negligently failed to adequately warn Foust's prescribing nurse practitioners about the risk of Prempro, and that the negligent failure to warn was a causation factor in the nurse practitioners prescribing Prempro to Foust.


Man Held in Courthouse Graffiti Threat Against Judge

The Associated Press, Law.com

02-25-10 -- A western Pennsylvania man has been arrested on charges he spray-painted a threat against a judge who sentenced him to probation in an assault case. . . . Thirty-nine-year-old Paul Sirmons, of North Huntingdon, was awaiting arraignment Wednesday on charges of vandalism, terroristic threats and criminal mischief.


UTAH  

Utah high court reprimands Lehi judge for gun joke

Associated Press, LocalNews8.com

02-25-10 -- The Utah Supreme Court has reprimanded a Lehi judge for pulling a gun on a bailiff in court while joking around. . . . Lehi City Justice Court Judge Garry R. Sampson took his own gun from a holster last year and pointed it at bailiff Darci Bugden after Bugden playfully threatened to throw water on Sampson. . . . A court clerk and victim advocate were in the courtroom, but no members of the public were there.


February 23--February 24, 2010

FEDERAL COURTS

9th Circuit OKs Privacy Suit Over Disclosure of HIV Status

Kate Moser, The Recorder

02-24-10 -- The 9th U.S. Circuit Court of Appeals has given a San Francisco man another chance to pursue a case for damages against the government after information on his HIV status was shared among several federal agencies. . . . Noting that the 9th Circuit hadn't previously determined the meaning of "actual damages" under the Privacy Act of 1974, Monday's opinion held that people who suffer after federal agencies violate the act are entitled to relief even if their damages aren't economic. . . . "Congress clearly intended that when a federal agency intentionally or willfully fails to uphold its record-keeping obligations under the act, and that failure proximately causes an adverse effect on the plaintiff, the plaintiff is entitled to recover for both pecuniary and nonpecuniary injuries," Judge Milan Smith Jr. wrote in Cooper v. Federal Aviation Administration, 10 C.D.O.S. 2124 (pdf). He was joined by Judge Michael Daly Hawkins and Eighth Circuit Senior Judge Myron Bright, who was sitting by designation.


At Hearing, Boston Music Downloader Argues for New Trial or Reduced Verdict

Sheri Qualters, The National Law Journal

02-24-10 -- Lawyers at a District of Massachusetts hearing about whether music downloader Joel Tenenbaum should have a new copyright infringement trial or whether the court should reduce the $675,000 jury verdict, debated Congress' intent in setting infringement damages. . . . The history of an analogous District of Minnesota case, Capitol Records Inc v. Thomas-Rasset, which generated a verdict of $1.92 million or $80,000 per song, was also hotly debated. The case is headed for a third trial following Chief Judge Michael Davis' order last month to cut the verdict to $54,000. Davis' order called the verdict "monstrous and shocking." . . . The hearing in Sony BMG Music v. Tenenbaum was about Tenenbaum's challenge to the July 31 verdict in Capitol Records Inc. v. Alaujan. . . . The court later split the cases into separate proceedings against defendants who hadn't settled.


3rd Circuit Weighs Validity of Fines in 'Wardrobe Malfunction' Case

Shannon P. Duffy, The Legal Intelligencer

02-24-10 -- Like the truth that is sometimes found in jest, a moment of levity in a court proceeding can sometimes help to crystallize a legal argument more cogently than the lengthy and serious discussion that preceded or followed it. . . . Such was the case on Tuesday afternoon as the 3rd U.S. Circuit Court of Appeals took up for the second time the issue of decency standards for television broadcasters. . . . Specifically, the three-judge panel is deciding whether to uphold the hefty fines imposed on CBS for Janet Jackson's infamous "wardrobe malfunction" at the 2004 Super Bowl. . . . In the first round of litigation, CBS prevailed when a 3rd Circuit panel overturned the $550,000 in fines that the Federal Communications Commission imposed on CBS over Jackson's breast-baring performance.


2nd Circuit Denies En Banc Review of Lynne Stewart's Sentence

Mark Hamblett, New York Law Journal

02-24-10 -- The light prison sentence given to disbarred attorney Lynne Stewart following her conviction for providing material support to a terrorist conspiracy continues to divide the 2nd U.S. Circuit Court of Appeals. . . .Three different opinions were issued by the circuit Tuesday as judges staked out positions on how the court should review the 28-month sentence Southern District Judge John J. Koeltl ordered Stewart to serve in 2006 for helping imprisoned Sheikh Omar Abdel Rahman communicate with his followers in Islamic Group. . . . The unmistakable message from at least five of the nine active judges is that Koeltl must impose a significantly  ougher penalty on the 70-year-old Stewart when she is re-sentenced on April 22.


Ex-Brocade CEO's Backdating Retrial Opens, With Law Firm Name Dropping

Dan Levine, The Recorder

02-23-10 -- It's not often that the chairman of one major Silicon Valley law firm kicks dirt in open court on a fellow chairman/business rival. . . . But in part of his opening statement Monday, Cooley Godward Kronish Chairman Stephen Neal claimed that former Brocade CEO Gregory Reyes could not be convicted of illegal stock option backdating because Brocade's outside counsel, Wilson Sonsini Goodrich & Rosati, was fine with the practice. . . . Wilson's chairman, Larry Sonsini, sat on Brocade's board. And Sonsini himself received backdated stock options, according to Neal. . . . "They never said that was a violation of an accounting standard," Neal said, adding that Wilson Sonsini was a "highly respected, highly regarded" law firm. . . . "Larry Sonsini, and the audit committee, and the directors of this company, knew backdating was taking place," Neal said, meaning Reyes could not have intended to break the law.


Toyota Executives Head to Capitol Hill to Testify on Public Safety Record

David Ingram, The National Law Journal

02-23-10 -- Toyota executives head to Capitol Hill on Tuesday for the first of three hearings on the automaker's product safety record -- a trip to the political woodshed that could get the company into a deeper legal thicket in courts around the country. . . . Plaintiffs lawyers on Monday said they will be watching testimony closely. So, too, presumably, will prosecutors and regulators who are mounting investigations into Toyota's handling of braking and acceleration problems in several of its vehicles. . . . Toyota executives are "going to have to show that they acted with reasonable speed when they knew about a real defect and that they were honest with their customers and the American people," said Victor Schwartz, a partner in Shook, Hardy & Bacon's Washington office. Schwartz, who is not involved in any Toyota cases, represented Bridgestone/Firestone in a U.S. Senate investigation in 2000 after the company recalled 6.5 million tires.


Pa. Federal Judge Defers to Delaware Chancery in Cravath-Airgas Dispute

Gina Passarella, The Legal Intelligencer

02-23-10 -- A federal judge in Philadelphia agreed to stay proceedings in a fight between Radnor, Pa.-based Airgas and its former law firm Cravath Swaine & Moore until Delaware's Chancery Court decides whether the law firm should be enjoined from representing Airgas competitor Air Products & Chemicals in its bid to take over Airgas. . . . Both companies had been clients of Cravath's for years. Airgas alleges Cravath dumped the company as a client after nine years in order to represent a 40-year client, Air Products, in the deal. Airgas also alleges Cravath was working on financing deals with Airgas at the same time it was advising Air Products in the transaction. . . . Airgas sued Cravath a day after Air Products sued Airgas in Chancery Court over allegations Airgas didn't give its shareholders a proper chance to accept the bid. After removing Airgas v. Cravath Swaine & Moore from Philadelphia Common Pleas Court, Cravath asked Judge Eduardo C. Robreno of the U.S. District Court for the Eastern District of Pennsylvania to stay Airgas' motion for preliminary injunction until the Chancery Court could decide the same issue.


A Reluctant Judge Rakoff Defers to SEC in Accepting BofA Deal

Noeleen G. Walder, New York Law Journal

02-23-10 -- Southern District of New York Judge Jed S. Rakoff on Monday "reluctantly" approved a $150 million agreement (pdf) between the Securities and Exchange Commission and Bank of America Corp., which settles allegations that the bank failed to make required disclosures in connection with its $50 billion takeover of Merrill Lynch & Co. in 2008. . . . Before reaching his decision (pdf), the judge reviewed hundreds of pages of discovery materials released last week to determine whether the bank's management or attorneys intentionally withheld material information from shareholders before they voted to approve the acquisition.


DELAWARE  

Judge: DE School Can Allow Moment of Silence

Christian Broadcasting Network  

02-24-10 -- A federal judge has ruled that the Indian River School Board in Wilmington, Del. can continue to open its meetings with a prayer or moment of silence. . . . U.S. District Judge Joseph J. Farnan, Jr. declared that it is constitutional for the board to open meetings with prayer and threw out a lawsuit over the issue. . . . "Although reasonable people can differ as to whether the board's policy is wise, could be more inclusive, or is actually necessary to solemnize board meetings, 'too much judicial fine-tuning of legislative prayer policies risks unwarranted interference in (a legislative body),'" the ruling read.


ILLINOIS  

Brunton resigns as Macoupin County associate judge

By Chris Dettro, The State Journal-Register

02-23-10 -- A Macoupin County associate judge previously suspended from her duties after allegedly making threatening statements has submitted her resignation. . . . Diane L. Brunton, an associate judge in the 7th Judicial Circuit since 1988, submitted her letter of resignation earlier this month, to be effective Sunday. . . . “I’m grateful for the many years of distinguished service Judge Brunton has given the people of the 7th Judicial Circuit,” said Chief Circuit Judge Patrick Kelley. . . . Brunton, 61, “made statements to an individual or individuals in her presence which were inappropriate and which could reasonably be construed as threatening to others,” according to the administrative order that placed her on temporary restricted assignment.


LOUISIANA   

State to appeal gay adoption ruling

By Bill Barrow, The Times-Picayune

02-22-10 -- A top state lawyer has confirmed that Attorney General Buddy Caldwell almost certainly will appeal a federal appeals court order requiring that Louisiana issue an amended birth certificate listing as parents two out-of-state men who, through a New York court, adopted a child born in Shreveport. . . . Kyle Duncan, a Caldwell deputy and lead state attorney in the case, said the state will most likely ask the full U.S. 5th Circuit Court of Appeals to reverse Thursday's unanimous ruling from a three-judge panel of the circuit. The state also has the option of appealing directly to the U.S. Supreme Court. . . . Sitting squarely at the intersection of gay rights and federalism, the case poses questions about what lengths one state must go to enforce judgments from another state's court system. And for its obvious political undertones, the matter has the attention of gay-rights advocates and social conservatives.


MASSACHUSETTS   

Massachusetts Challenges Defense of Marriage Act

Marcia Coyle, The National Law Journal

02-23-10 -- While the legal challenge to California's ban on same-sex marriage -- Proposition 8 -- plays out on the West Coast, a direct constitutional challenge to the federal Defense of Marriage Act moves forward on the East Coast. . . . Massachusetts Attorney General Martha Coakley last week moved for summary judgment in Commonwealth of Massachusetts v. U.S. Department of Health & Human Services, which was filed in July. . . . "Throughout our history, marital status has been determined solely and exclusively by State law -- not simply for purposes of State legislation, but also wherever Congress has chosen to make federal law turn on marital status," Coakley told the federal district court in Boston.


MISSOURI  

Accused judge won't hear similar cases

By Mark Schlinkmann & Shane Anthony, St. Louis Post-Dispatch 

02-24-10 -- A judge facing charges of driving while intoxicated and speeding has agreed to refrain from hearing similar cases — including some that came up in his court Tuesday night. . . . Municipal Judge Michael E. Carter is stepping aside in the cases at the request of the city's prosecutor after reviewing a state Supreme Court rule. The rule allows any party to a case to automatically get a change of judge for any reason. . . . Earlier this month, Wentzville Mayor Paul Lambi complained that Carter had refused the prosecutor's request in court Feb. 9 and pressed unsuccessfully for his resignation. . . . Carter reiterated in an interview that he had just wanted time to review the rule to make sure it applied to municipal courts. "Nobody was put out by waiting two weeks to rule on that," he said.


NEW JERSEY  

State Need Not Prove Stalker Had Knowledge of the Fear He Inspired

Charles Toutant, New Jersey Law Journal

02-24-10 -- Stalking is stalking, regardless of whether or not the defendant appreciates that his conduct would reasonably arouse fear in the quarry, the New Jersey Supreme Court says. . . . The justices affirmed a conviction under the state's anti-stalking law, rejecting the defense that the defendant's intentions were purely romantic. . . .  The claimed innocent intention of one with an unrequited love interest in another does not permit an individual to stalk the other with impunity," Justice Jaynee LaVecchia wrote for the Court in State v. Gandhi, A-101-08. . . . The statute requires only a showing that the defendant acted in a way that would cause a reasonable person to fear harm or death, the Court said. The state need not show the defendant intended, or was aware of, the effect of that conduct.


N.J. Shopping Center to Pay $10.3 Million in Premises Liability Suit

Charles Toutant, New Jersey Law Journal

02-23-10 -- A Springfield, N.J., man who suffered a head injury in a shopping center accident accepted $10.3 million Thursday to settle his Union County suit, Hess v. Paragano Associates. . . . On July 9, 2008, Michael Hess was leaning on a metal railing on an elevated walkway outside a store at Echo Plaza in Springfield when the railing gave way. He fell four feet to the pavement below, hitting his head. The railing had broken the day before, but the shopping center used wire to hold it together and did not post warning signs, says the plaintiffs attorney, Raymond Gill Jr. of Gill & Chamas in Woodbridge, N.J. . . . Hess suffered three fractured vertebrae and repairing them required implantation of metal plates. He dislocated his left shoulder, which required an operation, and suffered nerve problems in his feet from walking on crutches. He also lost hearing in his left ear, Gill says. . . . After the fall, Hess became disoriented, behaved childishly and lost control of urination. Though MRI tests showed no bleeding on the brain, medical experts attributed his mental problems to a closed-head injury, Gill says. Now 42, Hess has had to give up his job as a warehouseman.


NEW YORK  

Bronx District Attorney Robert Johnson fears 'chaos' as court merger kayoed

By Alison Gendar, Daily News Staff Writer

02-24-10 -- Thousands of misdemeanor convictions in the Bronx are in doubt after an appeals court ruled that the merger of the borough's Criminal and Supreme courts was unconstitutional. . . . Prosecutors immediately vowed to appeal Tuesday's decision by the Appellate Division, the state's second-highest court. . . . "Today's decision ... will likely lead to chaos, at least in the short term," Bronx District Attorney Robert Johnson said. . . . He planned to seek a stay that would stop a parade of cons from flooding the courts with motions to get their old cases cleared. . . . His office also was working to adjourn pending cases until there was a final resolution. . . . He called the timing of the decision bizarre since another challenge to the merger is already before the Court of Appeals, the state's highest court.


Denial of N.Y. Judicial Pay Raise Is Ruled Unconstitutional

State's high court faults linkage to unrelated issues; judges' salary must be decided on merits

Joel Stashenko, New York Law Journal

02-24-10 -- By failing to grant the state's judges a raise for 11 years, the New York Legislature has created a "crisis" that violates the separation of powers doctrine, the New York Court of Appeals ruled on Tuesday. . . . The court concluded, 5-1, that the continued linking of judicial pay to unrelated issues was threatening the judiciary's independence. . . .

Arguments and Briefs in the Cases Before the Court of Appeals

Oral Arguments in Matter of Maron v. Silver / Larabee v. Governor / Chief Judge of the State of New York v. Governor

Briefs in Chief Judge v. Governor

Brief of the Chief Judge

Defendants' Brief

Defendants' Reply Brief

Brief in Maron v. Silver

Appellants' Brief

Brief in Larrabee v. Governor

Appellants' Brief

However, the court declined requests from judge-plaintiffs and the court system in three pay cases to order an immediate raise or to fashion another remedy for the constitutional breach other than the "appropriate and expeditious legislative consideration" of the issue on its merits alone. . . . "By ensuring that any judicial salary increases will be premised on their merits, this holding aims to strike the appropriate balance between preserving the independence of the Judiciary and avoiding encroachment on the budget-making authority of the Legislature," Judge Eugene F. Pigott Jr. wrote for the majority. "Therefore, judicial compensation, when addressed by the Legislature in present and future budget deliberations cannot depend on unrelated policy initiatives or legislative compensation adjustments."


Landlords’ Convictions Overturned in Deaths of 2 Firefighters

By Sam Dolnick,  New York Times 

02-23-10 -- A Bronx judge on Tuesday overturned the convictions of the owner and former owner of a building where two firefighters leapt to their deaths from a fourth-floor window to escape advancing flames. . . . A jury convicted the defendants of criminally negligent homicide and reckless endangerment a year ago; prosecutors had argued that they knew about the illegal partitions that had turned the apartment building into a dangerous maze that helped disorient the firefighters as the flames quickly spread. . . . But Justice Margaret L. Clancy of State Supreme Court took the unusual step on Tuesday of overturning the verdict because, she said, prosecutors had failed to prove that the defendants — the company that owned the building, and Cesar Rios, its former owner — knew about the partitions. . . . “An individual or entity cannot be convicted of a crime without evidence of actual knowledge,” Justice Clancy said. . . . On the frigid morning of Jan. 23, 2005, firefighters were called to a blaze in a building at 236 East 178th Street in Tremont. Tenants had built partitions inside apartments on the third and fourth floors that created small, windowless rooms cut off from the fire escape and the hallway. . . . Six firefighters trapped in the warren of rooms were forced to jump 50 feet from the building to escape. Firefighter John G. Bellew and Lt. Curtis W. Meyran died; the other four suffered serious injuries.


Woman who falsely accused man of rape, sending him to prison for 4 years, gets 1-3 years jail

By Rich Schapiro, Daily News Staff Writer

02-23-10 -- A Manhattan judge on Tuesday excoriated a young woman who falsely accused a man of rape - sending him to prison for nearly four years - then tossed her behind bars. . . . "What happened in this case is one of the worst things that can happen in our criminal justice system," Manhattan Supreme Court Justice Charles Solomon said before sentencing Biurny Peguero to one to three years. . . . "She testified that an entirely innocent person committed an extremely heinous crime. ... It's hard for me to imagine how she could do that."


Threats to Juror Alleged in Bid to Throw Out Astor Case Verdicts

Daniel Wise, New York Law Journal

02-23-10 -- Moving to set aside his conviction for looting the $132 million estate of his mother, Brooke Astor, Anthony D. Marshall on Monday offered purportedly new evidence that a single holdout juror was threatened during deliberations. . . . Marshall, 85, and his co-defendant, disbarred attorney Francis X. Morrissey, 67, claimed in their post-trial motion pursuant to Criminal Procedure Law §440.10 that they were denied their right to a fair jury trial when Acting Supreme Court Justice A. Kirke Bartley declined to make a statutorily mandated inquiry of the jurors, which they said would have revealed the intimidation. . . . The defendants were convicted in October after a 20-week trial and both were sentenced to one to three years in prison.


OHIO  

Cronin Sentenced to Jail Time and Fines

WYTV

02-23-10 -- Two months after pleading guilty to mail fraud charges, former Mahoning County Judge Maureen Cronin was sentenced to 27 months behind bars and a $4,000 fine. . . . In federal court in Akron Tuesday, Cronin said she accepts "complete responsibility" for her actions saying she was "truly sorry" for failing to report an $18,000 dollar loan she obtained while she was still on the bench. . . . That loan was made by Flora Cafaro, a senior executive with the Cafaro Company and sister of J.J. and Anthony, both of whom abruptly retired in December. Tuesday's revelation came just a day after J.J. Cafaro was charged with filing a false statement over a loan he allegedly made to the congressional campaign of his daughter, Capri Cafaro, six years ago.


PENNSYLVANIA  

School District in Laptop-Spying Case Ordered to Shut Off Webcams

By Martha Neil, ABA Journalhttp://www.abajournal.com/?ACT=49&vars=YToyOntzOjg6ImVudHJ5X2lkIjtzOjU6IjI0NzkxIjtzOjk6IndlYmxvZ19pZCI7czoxOiIxIjt9

02-23-10 -- Seeking to prevent a repeat of the alleged use of a school-issued laptop computer to spy on a suburban Philadelphia student at his home, a federal judge has approved a consent order intended to put a stop to the potential invasion of privacy. . . . It prohibits Lower Merion School District from remotely activating the webcams in the laptops provided to some 2,300 high school students and from taking screen shots, reports Computerworld. The school district says it had already turned off the webcams last week, after admittedly using them some 42 times to locate lost or stolen laptops. . . . As detailed in an earlier ABAJournal.com post, the school district says it didn't spy on students.


Philadelphia Jury Awards $9.45 Million in Damages Over Prempro Drug

Award marks latest in string of jury verdicts in favor of plaintiffs in Philadelphia hormone replacement therapy cases

Amaris Elliott-Engel, The Legal Intelligencer

02-23-10 -- Another Philadelphia jury has decided that drugmaker Wyeth should be punished with punitive damages for the warnings provided to a plaintiff and her doctor over the risk of breast cancer from Wyeth's hormonal drug Prempro. . . . The jury awarded $6 million in punitive damages and $3.45 million in compensatory damages Monday in Singleton v. Wyeth. According to plaintiffs' counsel Zoe Littlepage of Littlepage Booth in Houston, this case is the first in the country involving a plaintiff diagnosed with breast cancer well after the July 2002 release of the Women's Health Initiative, a randomized, controlled trial of the risks and benefits of hormone replacement.


TEXAS  

Appeals Court Reverses Death Sentence, Doesn’t Mention Judge-Prosecutor Affair

By Martha Neil, ABA Journalhttp://www.abajournal.com/?ACT=49&vars=YToyOntzOjg6ImVudHJ5X2lkIjtzOjU6IjI0NzkxIjtzOjk6IndlYmxvZ19pZCI7czoxOiIxIjt9

02-24-10 -- The Texas Court of Criminal Appeals has reversed the death sentence for a convicted double murderer who was nearly executed in 2008 before the state ran of out time to perform the lethal injection. . . . But in determining that Charles Dean Hood should be resentenced, the court makes no mention of a now-admitted affair between the judge and the prosecutor in his case that created a legal ethics ruckus when it became known years later, according to the Associated Press. . . . The court finds, in a split decision today, that mitigating evidence not presented to jurors requires that Hood be resentenced, according to the Dallas Morning News. That evidence includes allegations that Hood was abused as a child.


State judicial committee involved in probe of Corpus Christi city judge

Court actions of King under scrutiny

By Sara Foley, Corpus Christi Caller Times 

02-24-10 -- An investigation into a former municipal court juvenile judge who was reassigned last year has been turned over to the State Commission on Judicial Conduct, a City Council member said. . . . Councilman Kevin Kieschnick said the state agency is investigating courtroom actions of Deanie King, a former juvenile court judge who was reassigned to magistrate judge in July. . . . king previously underwent a city ethics probe and has been accused by a local lawyer of violating a section of the Texas Code of Criminal Procedure, which requires judges to take juvenile defendants’ pleas in open court.


Parties in Case Pending More Than 4 Years Sue Texas High Court Justices Over Delay

Mary Alice Robbins, Texas Lawyer

02-23-10 -- Alleging that the delay in their case has deprived them of their constitutional rights to due process, plaintiffs in a class action suit pending more than four years at the Texas Supreme Court have sued each of the court's nine justices. . . . Southwestern Bell Telephone Co., the defendant in the underlying class action suit, Marketing on Hold Inc. v. Southwestern Bell Telephone Co., filed an interlocutory appeal with the Texas Supreme Court in November 2005. The Supreme Court heard arguments in the case on March 22, 2007. . . . "We want a decision," says Houston solo Thomas R. Bray, who represents plaintiff Marketing on Hold Inc., doing business as Southwestern Tariff Analyst. Bray says the class claims total approximately $80 million, including $40 million in actual damages and $40 million in prejudgment interest.


Back to Top

on

Due to server's technical difficulties the numbering restarted on 6/19/06
As of 6/19/06 You are visitor number

Hit Counter

REVIEWS INAUGURATED ON: September 30, 2004
Updated 03/08/2010