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FBI Probes Threats on Federal Witnesses in NY Ethics Scandal

New York, New York, November 21, 2008- Sources have confirmed that Federal Agents in New York and Washington, D.C. are actively investigating complaints of witness tampering in the New York State Ethics Scandal pending in the federal District Court in Manhattan.

Legal Authority: Pay to Play

The latest probe began in July of 2008 when numerous individuals went to federal authorities with various accounts of illegal payoffs to New York State employees at the Departmental Disciplinary Committee (“DDC”) at 61 Broadway in lower Manhattan. The DDC investigates ethics complaints against attorneys in Manhattan and The Bronx, and has been long believed to be a corrupt, political vendetta machine.

One cooperating attorney is quoted as saying, “I did not have to worry about any ethics complaints because I always paid my insurance premiums to the DDC. Everyone knew what was going on.”

Witness Tampering: Threats on a Federal Witness

Federal Agents from two different offices sprung into high gear after the summer when a DDC supervising attorney threatened another state-employed DDC attorney under his direction. The DDC staff attorney was apparently confronted days before his sworn testimony was to begin in the ethics probe, and the intended message was made perfectly clear, says the source, adding, “You have a very serious situation requiring immediate involvement by federal authorities anytime someone confronts a federal witness and warns that a death may result from testimony.”

New York Norm: Obstruction of Justice

The allegations, and initial findings, were serious enough for investigators from New York State to forward the troubling reports to federal agencies. Attorney General Andrew Cuomo was initially apprised of the witness tampering allegations and he has been tracking the various federal inquiries since. And it has been confirmed that Appellate Division, First Department, Presiding Justice Jonathan Lippman ordered that the involved DDC supervising attorney be immediately transferred to his courthouse at 27 Madison Avenue from the DDC offices on Broadway where the threatened attorney works. Another court insider believes it’s “just another OCA cover-up,” adding, “no one in the First Department- or anywhere in the State- wants an ethics committee supervising attorney spilling the beans to a crowd of FBI agents.”

Recently appointed DDC chairman, Roy Reardon, according to sources, has been involved in DDC affairs on an almost daily basis, and he has acknowledged the seriousness of the physical threats and psychiatric issues involved. “To his credit,” says the source, “Roy Reardon took immediate action after he confirmed that he was staring at witness tampering by one of his DDC supervising attorneys. It was Roy who first suggested the transfer.”

It has been long rumored that virtually any ethics complaint, no matter how serious or criminal, could be made to disappear for “favored attorneys.” “The feds are now beginning to understand that a ‘favored attorney’ in New York doesn’t just involve political connections. A New York ‘favored attorney’ is one who pays,” says one attorney who has practiced in the federal court system for over thirty years, and who asked not to be identified.

It is believed that the underlying federal action is Anderson v. State of New York (SDNY), though there are other ethics cases pending, and some before the 2nd Circuit- all involving charges of corruption at the DDC.  (CLICK HERE to see the Anderson Lawsuit)

“Win at all Costs” and “No Regard for Laws or Ethics” Hits National Agenda

The latest allegations coincide with the obstruction of justice case in the Eastern District Court in Brooklyn against defense attorney Robert Simels and his associate Arienne Irving, who each face up to 10 years in prison for allegedly seeking to use bribes and violence to prevent witnesses from testifying against one of their clients.

Tamanny Hall II – New York Court’s Cesspool Seeps to Washington, D.C.

In November of 2008, the U.S. Supreme Court decided to hear Caperton v. A.T. Massey Coal, a case that centers on state level ethics and judges beholden to financial supporters. The Brennan Center and other advocacy groups have called the issues egregious, matters that raise underlying questions about due process on a national level.

See, "The Unethical Ethics Committee"

Background story on New York-Style Ethics, "Sex Scandal at Attorney Committee on Character and Fitness"

Background article on State Ethics case to be heard by the U.S. Supreme Court:

U.S. Supreme Court Is Asked to Fix Troubled West Virginia Justice System
The New York Times by ADAM LIPTAK - October 12, 2008

WASHINGTON, D.C. — The justice system in West Virginia is broken and the United States Supreme Court should take steps to fix it, according to a pile of briefs in three cases awaiting the court’s attention. The chief justice of the West Virginia Supreme Court lost an election in May, after pictures of him vacationing in Monte Carlo surfaced in the newspapers. He was with a powerful coal-company executive who had business before the court. A second justice has called the executive, Don L. Blankenship, stupid, evil and a clown who was “trying to buy influence like buying candy for children.” That justice, Larry V. Starcher, has disqualified himself only selectively from cases involving Mr. Blankenship’s company, Massey Energy. A third justice, Brent D. Benjamin, won his seat with the help of more than $3 million from Mr. Blankenship but has refused to disqualify himself from cases involving Massey, and twice joined a 3-to-2 majority throwing out a $50 million verdict against the company. The United States Supreme Court is likely to announce this week whether it will hear the first of the cases, about whether the Constitution’s due process clause requires Justice Benjamin to step aside in the $50 million Massey case.

The case, Caperton v. A. T. Massey Coal Company, No. 08-22, has attracted supporting briefs from the American Bar Association and several other groups urging the court to hear the case. “If the public believes that judges can be bought,” said Keith R. Fisher, a lawyer for the bar association, “that is really poisonous and undermines public confidence in an independent judiciary.” James Sample, a lawyer with the Brennan Center for Justice at New York University School of Law, which also filed a supporting brief, called Mr. Blankenship’s campaign spending “a brazen attempt to purchase influence in a specific pending case.” Justice Benjamin did not respond to a request for comment. In a long opinion issued in July explaining his decision not to disqualify himself, he said he had judged the case on the merits and that only proof of a judge’s actual bias, as opposed to the appearance of a conflict, requires recusal. Massey has filed a brief urging the Supreme Court not to hear the case, calling the matter “a grand conspiracy theory.” The Massey brief said the United States Supreme Court “has never adopted a ‘looks bad’ due process test.”

The plaintiffs in the case are mining companies that say they were driven out of business by fraud committed by Massey. They are represented in the Supreme Court by Theodore B. Olson, a former United States solicitor general. “Individuals and entities that have business before the courts of the United States must be assured that the judges who handle their cases handle them truly, squarely and fairly,” Mr. Olson said. Mr. Olson argued and won the leading decision in this area, Aetna Life Insurance v. Lavoie, which was decided in 1986. But that case established only that the Constitution can require judges with a financial stake in the outcome of a case to disqualify themselves. Caperton, by contrast, turns largely on whether millions of dollars in campaign support from an interested party creates an appearance of impropriety so strong that recusal is required. Massey takes a different position in a second appeal to the United States Supreme Court, this one urging the court to disqualify Justice Starcher, he of the intemperate remarks. “There would be no inconsistency” in granting that appeal while turning back the one concerning Justice Benjamin, a Massey brief said, because Justice Starcher’s bias was manifest while Justice Benjamin’s conflict of interest, if there was one, was a question of appearances only.

Justice Starcher has acknowledged having said some harsh things, and in an opinion in April he apologized for his remarks about Mr. Blankenship. “He is obviously an intelligent person,” Justice Starcher wrote of Mr. Blankenship. But Justice Starcher added that he would disqualify himself only if Justice Benjamin did. If that is a violation of due process, he wrote, “so be it.” Should the United States Supreme Court hear the matter, he continued, “we will surely be told that $3,500,000 in electoral support by the C.E.O. of an active litigant in the court is sufficient to create ‘an appearance of impropriety.’ ” In a telephone interview on Thursday, Justice Starcher said he could keep an open mind in cases involving Massey and Mr. Blankenship.
“I don’t have any bias against them in a legal sense,” Justice Starcher said. He proposed an analogy. “I don’t smoke,” he said. “I don’t advise my children to smoke. But I don’t get off tobacco cases.” Justice Starcher added that the defeat of the chief justice, Elliott E. Maynard, and the series of Massey cases have strained personal relationships on the court. “Some of the justices still barely speak to each other,” he said. “It’s a little tense.” The respondents in the second case, Massey Energy v. Wheeling Pittsburgh Steel Corporation, No. 08-218, are also represented by Mr. Olson. His brief is due Oct. 22, and he said it was premature to discuss what it would say about Justice Starcher. The petition in that case and a third one, NiSource v. Estate of Tawney, No. 08-219, also attack a distinctive aspect of West Virginia justice: companies hit with enormous punitive damages awards there have no right to an appeal. Only two states, West Virginia and Virginia, do not guarantee at least one level of appellate review in civil cases. But Virginia caps punitive damages at $350,000. West Virginia was responsible for three of the seven largest verdicts in 2007, according to The National Law Journal. Yet when two of those verdicts — one for some $400 million, the other for about $220 million — reached the West Virginia Supreme Court, the justices declined to hear appeals. Andrew L. Frey, a lawyer for Massey, said the failure to allow at least one complete appeal violated due process. “The risk of error if you leave it to a single judge, particularly an elected judge with a local constituency to accommodate, is too great,” Mr. Frey said.

It is not at all clear, however, that the Constitution guarantees a right to an appeal in a civil case. In criminal cases, the Supreme Court has repeatedly said there is no constitutional right to an appeal. And the relatively cursory review provided by the West Virginia Supreme Court over whether to hear an appeal at all may satisfy any constitutional requirement that there be appellate review.  end

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