Some Judges Know When It's Time to Go

Okie Dokie: Chief Judge Leaves the Courthouse for the Groves of Academe
The National Law Journal by Marcia Coyle - December 10, 2009

Chief Judge Robert H. Henry of the U.S. Court of Appeals for the 10th Circuit has announced that he will step down from the bench in June 2010 to become president and chief executive officer of Oklahoma City University. Henry, who also will be a tenured professor of law and political science, will succeed Tom McDaniel, who takes on a new role as chancellor. Oklahoma City University is a private Methodist-affiliated university with a student body of 3,700 graduate and undergraduate students. In Henry's announcement, Board of Trustees President William Shdeed called Henry the "top choice" at each stage of a search process that began last August. Shdeed said, "We believe he can lead OCU to the next level of national and international prominence in private higher education. OCU is poised for greatness." Henry has served as chief judge since 2008. President Bill Clinton nominated him to the federal appellate court in February 1994. He received his commission in May of that year. Before joining the federal bench, Henry was dean of the Oklahoma City University School of Law from 1993 to 1994. He also served as state attorney general from 1987 to 1992, and as a state representative from 1976 to 1986. "The 10th Circuit is, in my view, the most collegial and friendly group of judges, lawyers and staff in the country," said Henry. "It has been a remarkable honor to serve as chief judge of such a wonderful institution. I will retain great friendships and great memories of the public servants with whom I have worked for almost 16 years." The circuit currently has 11 active judges and nine senior judges. Its territorial jurisdiction covers Oklahoma, Kansas, New Mexico, Colorado, Wyoming and Utah, plus those portions of the Yellowstone National Park extending into Montana and Idaho.

Outrage Over Convicted NY Judge's Early Release

Outrage over convicted divorce judge’s early release
The New York Post by Thomas Tracy - December 10, 2009

The fact that disgraced judge Gerald Garson will be home for the holidays is “reprehensible” and a “mockery of justice,” a group of divorced mothers and domestic violence survivors claimed Monday as they protested the convicted septuagenarian’s early release from prison. “Money talks and Garson walks,” screamed Karlene Gordon as she and a handful of protestors from the Voices of Women Organizing Project (VOW) stood across the street of Brooklyn Family Court on Jay Street Monday afternoon. “Gerald Garson and his partner in crime Paul Siminovsky deceived, corrupted and destroyed lives with judicial immunity and protection. Sentenced to a county club, resort-like prison, then allowed to escape his judicial slap on the wrist, Garson’s early release from jail is a slap in the faces of those lives he irreparably destroyed,” she added. “He will complete his sentence, yet the families he injured, on so many different levels, are still serving the sentence this felon imposed on them. His victims continue to suffer in silence without justice or recourse.” Gordon said she knows about suffering in silence all too well. Ten years ago Siminovsky helped her ex-husband get full custody of their children under what she claimed to be bogus circumstances. She’s still fighting to get custody. The case was never re-opened, despite Simonovsky’s arrest and conviction for bribing Garson. VOW, an assemblage of domestic violence survivors working to reform the New York Family Court system, said Garson’s arrest was an example on how domestic abuse victims are further abused when they are forced to stand in front of easily swayed jurists with dollar signs in their eyes. In 2007, Garson was convicted of bribe receiving and receiving a reward for official misconduct after he was charged with throwing divorce cases to whichever lawyer could feed his hunger for fine food and pricey vacations. Siminovsky was one of those lawyers. In fact, after he found himself in a spot of trouble, he offered to take part in the sting that took Garson down.

At his sentencing, Garson said that he was “profoundly sorry” for his behavior and that he was “appalled, embarrassed and ashamed” of his conduct. He was sentenced to three to seven years in prison, yet a state law passed in 1997 allowed his sentencing to be reduced by one-sixth if he holds a “good prison record and accomplishes the milestones that were set for him,” a spokesperson for the New York State Department of Correctional Services said. “There has been 30,000 inmates who have taken advantage of this small reduction,” the spokesperson said. Garson was transferred from Mid-State Correctional Facility in Marcy, New York, to the Fulton Correctional Facility in Harlem back on October 2. He will remain in a temporary release program until his full release on December 23 -- six months early. A spokesperson for the Kings County District Attorney’s office did not comment on Garson’s early release. Last month, Michael Vecchione, chief of the DA’s Rackets Division, sent a letter to the New York Department of Parole, demanding that the early release be halted. “This was an overwhelming case of greed, of selling his office for drinks, lunches, dinners and gifts and of violation of the trust the voters and citizens of Brooklyn placed in him,” Vecchione wrote. “He should serve all the time the law requires him to serve.” ttracy@cnglocal.com

Feds: Probes Ongoing

Feds: Probes ongoing
State lawmakers put on notice about scrutiny after Bruno conviction
The Albany Times Union by BRENDAN J. LYONS, Senior writer - December 11, 2009

ALBANY, NY -- Federal authorities who oversaw the prosecution of Joseph L. Bruno said they will continue to investigate allegations of corruption within the state Legislature, and that the FBI's resources for such cases have more than doubled in recent years. In an interview Thursday at the federal courthouse where Bruno was convicted by a jury this week on two felony counts, acting U.S. Attorney Andrew T. Baxter and John Pikus, special agent in charge of the FBI's Albany field division, said their probe of Bruno, which began five years ago, was hampered by New York's arguably porous ethics laws. "The state ethics and disclosure laws make it much harder for law enforcement to investigate and prosecute public corruption involving state officials,'' Baxter said. "There's just so little transparency in the legislative process that it takes an enormous amount of time and effort to uncover what really happened." Pikus took over leadership of the FBI's Albany field office in the summer of 2006, about seven months after agents opened an investigation of Bruno, the former state Senate majority leader. He said since then the number of agents who are assigned exclusively to public corruption cases have doubled to more than a handful. "It really is the state Legislature," Pikus said of where they are focusing. "The bureau understands that in any government form of the legislature there's going to be some allegations of wrongdoing and we are constantly on the outlook for that. I have the agents now, very experienced agents, working on information that's come to us and we're taking a look at it."

Assistant U.S. Attorney William C. Pericak, a co-prosecutor in the Bruno case with Elizabeth C. Coombe, was circumspect about whether other state lawmakers should be concerned with what happened to Bruno, who was convicted on two of eight counts in an indictment built on the federal honest services law. "I don't know," Pericak said. "It depends on who's paying them." The focus of the Bruno case was on payments the former senator received from a variety of companies or individuals who had an interest in his legislative duties, or his connections from his powerful majority leader post. He was convicted on two counts that related to his dealings with Jared E. Abbruzzese, a Loudonville businessman who became a millionaire from his efforts in the telecommuncations industry. Bruno and Abbruzzese also were partners in a horse-breeding partnership, which was the subject of one of the counts on which Bruno was convicted: Abbruzzese agreed to pay Bruno $80,000 for a prospective racehorse that prosecutors alleged was virtually worthless.

The trial of Bruno tore open the state's shadowy legislative ethics process, where lawmakers can seek opinions on their business affairs from a committee they help appoint and in a venue that is secret. But because of federal grand jury subpoenas the dealings of Bruno, the legal advice he received from Senate lawyers and the murky process by which he claimed no conflict of interest in his personal income was all were laid bare. Baxter said the Justice Department normally would defer to local or state prosecutors in cases of public corruption involving state and local government. But he said the structure of the state Legislature and the rules the elected officials created have made such referrals difficult. "In this case we decided the federal authorities needed to step in," Baxter said. "I think it would be easier for law enforcement at all levels to distinguish between corrupt politicians and politicians that are playing by the rules if there was more transparency in the state government process." Pericak added: "I think more transparency discourages bad behavior. In that sense, there's less of it but it's clearer."

The prosecutors said their office has made no decision on whether to retry Bruno on count three of the indictment, which relates to $468,000 in consulting fees Bruno received from a business associate, Leonard J. Fassler, whose various companies had an interest in state government contracts and Bruno's status as a top power broker. "We have not ruled that out," Baxter said. "We won't make a decision on a retrial until after the post-trial motions and we're further down the road." Bruno, 80, is scheduled for sentencing on March 31. Under federal guidelines he could face as much as three years in prison, as well as a fine of up to $250,00 on each count. However, federal judges have latitude in the sentences they hand down and Bruno could face punishment ranging from probation to many years in prison. Brendan J. Lyons can be reached at 454-5547 or by e-mail at blyons@timesunion.com.

Another Fraudster Attorney From Top Law Firm Exposed

Second Former Ropes & Gray Lawyer Snared in Insider Probe
The New Law Journal by Mark Hamblett - December 11, 2009

Another former Ropes & Gray attorney has been swept up in the wide-ranging probe into insider trading in Manhattan. Former Ropes & Gray associate Brien Santarlas, 33, pleaded guilty to conspiracy and securities fraud yesterday, telling Southern District Magistrate Judge Andrew J. Peck that he stole information about clients of the firm, reaping $32,500 in kickbacks. Mr. Santarlas, who is cooperating with the government in the hopes of obtaining a reduced sentence, admitted to stealing confidential information in 2007 on pending mergers and acquisitions as part of a conspiracy with another former Ropes & Gray associate, Arthur J. Cutillo, who was arrested Nov. 5 (NYLJ, Nov. 6).

Mr. Santarlas faces up to 25 years in prison, although it is unlikely he would receive that much. Mr. Santarlas said that he and a co-conspirator his defense lawyer confirmed was Mr. Cutillo got the information by "reviewing files, overhearing conversations and questioning unwitting associates" and then passed the information on to another lawyer outside the firm later revealed to be Jason Goldfarb, an associate with the personal injury firm Brecher Fishman Pasternak Walsh Tilker & Zeigler. Mr. Goldfarb in turn sent the information to broker-dealer Zvi Goffer, who was allegedly dubbed "Octopussy" by his confederates because his scheme reached into so many companies. It was Mr. Goffer who was allegedly caught on a wiretap telling Mr. Goldfarb that the trading of a conspicuous number of options in a stock was "a ticket right to [expletive] big house." Mr. Santarlas, of Hoboken, N.J., will have to forfeit $32,500 in ill-gotten gains when he is sentenced before Southern District Judge P. Kevin Castel.

He becomes the sixth defendant to have pleaded guilty pursuant to a cooperation agreement since the announcement of arrests in the Galleon hedge fund scandal in October and the 21st person arrested overall in a series of complaints that prosecutors estimate involve more than $40 million in illegal profits. The two companies Mr. Santarlas detailed in his guilty plea were 3Com Corp. and Axcan Pharma, Inc. "On August 7, 2007, confidential information passed on by me was used to buy 75,000 shares of 3Com," he said. The transactions were the acquisition of 3Com by Bain Capital Partners on Sept. 27, 2007, and the acquisition of Axcan by TPG Capital on Nov. 29, 2007. Mr. Santarlas declined comment yesterday as he left the courthouse at 500 Pearl St., but his attorney, Robert G. Stahl, of Stahl Farella, gave a brief statement. "Brien is a decent young man who made a series of errors and misjudgments and he is taking full responsibility," Mr. Stahl said.

Ropes & Gray issued a statement through a spokesman about Messrs. Santarlas and Cutillo, saying, "The actions of these two former associates represent an extreme breach of their duty of trust to our clients and the firm, as well as gross violations of our policies and civil and criminal law. We have been actively cooperating with authorities in their investigation of this matter."Mr. Santarlas left Ropes & Gray in September 2008. A civil suit filed by the Securities and Exchange Commission yesterday said that $20 million in profits were made on the 3Com and Axcan information. Assistant U.S. Attorneys Reed M. Brodsky, Andrew L. Fish and Marc Litt are handling the prosecution. Mark Hamblett can be reached at mhamblett@alm.com.

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Department of Justice Press Release

For Immediate Release
December 10, 2009 United States Attorney's Office
Southern District of New York
Contact: (212) 637-2600

Attorney Pleads Guilty in Manhattan Federal Court to Involvement in Insider Trading Ring

PREET BHARARA, the United States Attorney for the Southern District of New York, and JOSEPH M. DEMAREST, JR., the Assistant Director-in-Charge of the New York Office of the Federal Bureau of Investigation ("FBI"), announced that BRIEN SANTARLAS, a former attorney at Ropes & Gray LLP, pleaded guilty today to insider trading charges in Manhattan federal court. The charges against SANTARLAS arose out of an ongoing investigation of insider trading at hedge funds and stock trading firms which has already led to charges against 20 Wall Street professionals, five of whom have pleaded guilty and are cooperating with the government. According to the two-count Information filed against SANTARLAS, other documents in this case, and statements made during the guilty plea proceeding before United States Magistrate Judge ANDREW J. PECK:

From June 2007 through May 2008, SANTARLAS conspired with others to steal material, nonpublic information ("Inside Information") from the law firm of Ropes & Gray for the purpose of buying and selling securities. In violation of his duty of confidentiality to the law firm and its clients, as well as Ropes & Gray's written policies and procedures, SANTARLAS stole Inside Information about several mergers and acquisitions of public companies for which Ropes & Gray was providing legal services, prior to the public announcements of the deals. Specifically, SANTARLAS stole Inside Information about the acquisitions of 3Com Corporation and Axcan Pharma, Inc., and provided it to his coconspirators in exchange for thousands of dollars in cash payments. As a result of trading that was based on the Inside Information provided by SANTARLAS and his co-conspirators, other individuals collectively made millions of dollars in illegal profits.

SANTARLAS, 33, of Hoboken, New Jersey, pleaded guilty today to one count of conspiracy to commit securities fraud and one substantive count of securities fraud. The conspiracy charge carries a maximum sentence of five years in prison and a maximum fine of the greater of $250,000, or twice the gross gain or gross loss from the offense. The securities fraud count carries a maximum sentence of 20 years in prison and a maximum fine of $5 million, or twice the gross gain or loss from the offense. Mr. BHARARA praised the work of the FBI and thanked the United States Securities and Exchange Commission for its assistance in the investigation. Mr. BHARARA also thanked Ropes & Gray for its cooperation and assistance in this matter. Assistant United States Attorneys ANDREW L. FISH, REED M. BRODSKY, and MARC LITT are in charge of the prosecution.

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Brien Santarlas admits fraud in case that ensnared Galleon hedge funder Raj Rajaratnam

AP - December 10, 2009

Raj Rajaratnam, billionaire founder of the Galleon Group, a major hedge fund, was ensnared in the insider trading scandal.

A New York lawyer on Thursday became the sixth person to admit to conspiring with others in a coast-to-coast multimillion dollar insider trading case that has ensnared Galleon hedge fund founder Raj Rajaratnam. The lawyer, Brien Santarlas, who left the law firm Ropes & Gray in 2008, said in Manhattan federal court that from June 2007 to May 2008 he and another co-conspirator at the firm used confidential information about acquisitions of 3Com Inc technology company and Axcan Pharma Inc. "I knew what I was doing was wrong," Santarlas, 33, of Hoboken, New Jersey, told U.S. magistrate judge Andrew Peck as he pleaded guilty to conspiracy to commit securities fraud and to securities fraud.

Galleon Management LP hedge fund's billionaire founder Rajaratnam and a score of traders and employees of some of America's best-known companies were criminally and civilly charged in October and November. U.S. prosecutors have described the investigation as the biggest-ever hedge fund insider trading case. Santarlas's lawyer, Robert Stahl, said his client is cooperating with the investigation. He confirmed that Santarlas had conspired with Arthur Cutillo, another former Ropes & Gray lawyer. "Brien is a decent young man who made a series of errors and misjudgments," Stahl told reporters after the proceeding. "He is taking full responsibility." Aside from Santarlas, five other defendants in the case have pleaded guilty to criminal charges and are cooperating with investigators, according to court records. Santarlas, who also faces civil charges by the U.S. Securities and Exchange Commission, was released on $200,000 bail. His sentencing was tentatively scheduled for June 1. He faces a possible maximum prison term of 20 years for securities fraud. Cutillo was charged in November with insider trading in the same sprawling investigation that covered New York firms and tech stock companies in California.

"The actions of these two former associates represent an extreme breach of their duty of trust to our clients and the firm, as well as gross violations of our policies and civil and criminal law," said Andy Brimmer, a spokesman for the law firm. "We have been actively cooperating with the authorities in their investigation of this matter." The law firm's client Bain Capital Partners LLC announced it planned to acquire 3Com on September 27, 2007; the deal, which would also have involved China's Huawei Technologies Co Ltd, was shot down by a U.S. government security panel, and 3Com is now being bought by Hewlett-Packard Co. Another client, TPG Capital LP, announced on November 29, 2007 that it was acquiring Axcan Pharma. U.S. prosecutors said Santarlas, Cutillo, and two other defendants, Jason Goldfarb and Zvi Goffer, executed and caused trades to be executed in the stocks of 3Com and Axcan before the public announcements. The SEC alleges that people Santarlas and Cutillo tipped who traded on these two deals made approximately $20 million in illegal profits.

More Judgeships for Sale, Qualifications Be Damned

Judge's husband says he was told to support Perry for wife to have chance at high court seat
Jay Root, The Associated Press by Jay Root - December 10, 2009

CLICK HERE TO SEE RELATED NEW YORK STORY, "$140,000 for Judgeship?"

AUSTIN, TX – When Corpus Christi Judge Rose Vela was looking for an appointment to the Texas Supreme Court, her husband turned to a longtime friend and ally of Gov. Rick Perry – Cameron County Judge Carlos Cascos. But lawyer Filemon "Fil" Vela said he was dismayed by what Cascos told him: He needed to publicly disavow his support of Perry's rival Kay Bailey Hutchison, get on the Perry re-election bandwagon, and give the governor some campaign money for his wife to even be considered for the appointment. "It's clear that despite her qualifications, that when it came to the appointment, she was not on a level playing field because I had contributed to Hutchison – and I wasn't going to switch my support just to help her get the appointment," Filemon Vela told The Associated Press. Rose Vela is now running in the March Republican primary against the judge Perry ultimately appointed – Eva Guzman of Houston.

Cascos acknowledged that he gave Filemon Vela advice on how his wife might become eligible for an appointment to the high court. That included a recommendation that Filemon Vela endorse the governor and contribute to his campaign, Cascos said. What's not entirely clear is the role played by the governor's office or campaign. Cascos said he acted alone, without direction from Perry or his aides, a subject of dispute between the Vela and Perry camps. The saga began in August, when Justice Scott Brister announced he was stepping down from the high court, allowing Perry to appoint a temporary replacement. Rose Vela, a judge on the 13th Court of Appeals in coastal South Texas, expressed interest in the seat, and her husband inquired about an appointment. But Filemon Vela said Republican officials told him his support of Hutchison in the GOP primary was standing in his wife's way. The first to deliver the news was Eric Opiela, director of the Texas Republican Party, Filemon Vela said. Opiela, who resigned his party job in late November, declined to comment. After hearing from Opiela, Filemon Vela approached Cascos, whom Perry had once appointed to the Texas Public Safety Commission. Vela said Cascos told him in two conversations that he should endorse Perry and donate to his campaign if he wanted his wife to get the appointment. Cascos said the advice was meant "from one friend to another" and not as a message from Perry or anybody who works for him.

"I said, 'If you want it bad enough ... I would withdraw the endorsement [of Hutchison], I would contribute to the campaign, I would support him,' " Cascos recalled. He also said he told Filemon Vela that it was only a suggestion and "there's no guarantees or assurances that anything is going to happen." Perry spokeswoman Allison Castle said Perry's chief of staff, Ray Sullivan, and Cascos spoke on the phone about a possible appointment for Rose Vela but didn't discuss endorsements or campaign contributions. Sullivan told Cascos that Perry would "consider all the applicants," Castle said. In the end, Vela submitted an application for an appointment, but the job went to Guzman, whom Perry had previously appointed to a Houston appellate court. The two face each other in the GOP primary for a full term to the Supreme Court seat. Guzman's campaign consultant, Ted Delisi, said neither Guzman nor her husband has ever given campaign money to Perry. "Justice Guzman's qualifications are what put on her on the court. Period," Delisi said.

National Ethics a Complete Joke; Where are the Feds?

Andrew Thomas Offers No Evidence of Bribery in Judge Gary Donahoe Case -- But Charges Him Anyway
The Phoenix New Times by Sarah Fenske & Paul Rubin - December 9, 2009

​Maricopa County Attorney Andrew Thomas this afternoon struggled to explain his decision to charge the county's presiding criminal court judge, Gary Donahoe, with three felony counts -- including bribery, obstructing a criminal investigation, and hindering prosecution. But Thomas couldn't offer any evidence to the assembled media scrum that Donahoe actually had accepted a bribe of any sort. Instead, he and Sheriff Joe Arpaio (who stood next to Thomas at the lectern) offered the same vague allegations they have made for nearly a year regarding the county's planned court tower, currently under construction. In fact, the county attorney said no evidence exists that the veteran judge personally has received anything in the way of a personal financial benefit during the flap over the $347 million construction project Arizona has a "very broad" definition of bribery, Thomas said in response to requests for specificity.

Thomas seems to be alleging that the Maricopa County Board of Supervisors, the county's Superior Court bench, and their "shared" outside counsel, Tom Irvine and Ed Novak of Polsinelli Shughart, are an unholy "triad" working to block his and Arpaio's legitimate investigation into the tower's construction. But today's announcement that Donahoe now faces felony charges -- when the only evidence of "wrongdoing" on the judge's part is a series of rulings that Thomas and Arpaio vehemently disagree with -- is unprecedented even in Maricopa County. Donahoe also is the same judge who ordered detention officer Adam Stoddard to jail last week for swiping a defense attorney's notes -- drawing Sheriff Joe's ire. Even the Valley's usually compliant press corps seemed incredulous with the announcement of criminal charges against the highly respected Donahoe, who is retiring from the bench in the near future. But Thomas insisted that he wasn't pursuing a criminal case against Donahoe as a preemptive strike hours before the judge was set to hold a hearing that could have ended with Thomas being barred from prosecuting any county supervisor. He later told the gaggle, "If I'm not explaining this well, I hope you'll help me." Say what? "In fairness," Thomas said, after enduring increasingly pointed questions, "I admit this is a hard thing to believe."

He was referring to his allegation that a judge would accept "something of value" (the bribery count) in exchange for his decisions. But because the charges at first blush seem so over the top, some reporters initially thought that Thomas meant it was hard to believe the County Attorney's Office would take such a drastic step against the judge. But Thomas suggested that Donahoe had been obstructing justice "until about two hours ago," referring to when the judge canceled a hearing scheduled for this afternoon on matters related to the County Attorney's ongoing criminal investigations. "The hearing this afternoon was part of an ongoing criminal act," Thomas said. The hearing was scheduled in response to a notice filed by the supervisors' attorney, Tom Irvine. Irvine apparently was planning to argue that the hiring of special prosecutors from Washington, D.C. was illegal, since the supervisors had not authorized it. Thomas said the hearing before Donahoe would have forced his prosecutors to publicly reveal grand jury secrets, which is against the law. Yesterday two county supervisors, Mary Rose Wilcox and Don Stapley, were revealed to be facing criminal indictments. It is unclear whether the D.C. prosecutors somehow participated in bringing evidence to the grand jury in those cases. Also, last week, Thomas' office filed a "racketeering" lawsuit in federal court, which bizarrely accused the supervisors, their lawyers, and the judges of being a criminal enterprise under RICO laws. Because of that pending suit, Thomas said, Donahoe should have recused himself from considering Irvine's legal argument in court today. "That's how lawless this behavior was," the County Attorney said. "Nobody is above the law."

But to many in attendance, it seemed as if Thomas and Arpaio simply don't like the way they keep losing in Donahoe's court: Judge Donahoe removed the County Attorney's Office from investigating the court tower construction, he rejected the notion of holding indicted superivisor Don Stapley in contempt of court for alleged wrongdoing, and he jailed detention officer Adam Stoddard on a contempt of court charge. So first Thomas filed a RICO lawsuit alleging that Donahoe and other superior court judges are part of some vague and convoluted conspiracy, working together to see that the new court tower (with all those big offices and marble floors) is built and the sheriff's office/county attorney's office investigation is thwarted. Then they charge the big kahuna himself, Judge Donahoe, with criminal counts. That's one way to rid themselves of a judge they don't like, and perhaps find another jurist more sympathetic to their point of view. But Donahoe wasn't willing to recuse himself just yet, perhaps because the RICO allegations are so silly and vague. Until he was implicated in this morning's direct complaint, he had planned to go ahead with the hearing anyway. So they charge him with three felonies??? Wow.

"We are going to get to the bottom of this, and we are not going to be obstructed anymore," Thomas breathlessly told the press conference. Is that a threat? Sure is. Here's how a somber Arpaio explained his side of things: "Sometimes, you have to do what you have to do." Yeah, you gotta. Thomas and Arpaio told reporters that Judge Donahoe is required to make his initial appearance January 11. At that point -- unless reason somehow begins to prevail in this county, or unless some higher authority steps in -- he'll need to enter a plea to the charges in front of him and submit to booking. Thomas noted that his prosecutors will seek to move the case forward at a preliminary hearing after the initial appearance, not through a grand-jury indictment. The preliminary hearing is a public proceeding, while grand-jury proceedings are closed. By the time we reached the end of this press conference and read through the convoluted paperwork proffered by Thomas' prosecutors, we only had one question: Where are the feds?

Federal Prosecutors Say Corrupt Former NY State Judge Remorseless, Deserves 41 months

Feds to judge: Spargo remorseless, deserves 41 months in prison
The Albany Times Union by ROBERT GAVIN - December 8, 2009

ALBANY, NY -- On the same day former Senate Majority Leader Joseph L. Bruno was convicted of corruption, the federal government asked that former state Supreme Court Justice Thomas J. Spargo receive more than 3 years in prison for attempted bribery and attempted extortion.
A U.S. Justice Department prosecutor based in Washington, D.C., sent a letter Monday to Judge Gary Sharpe -- the same judge who presided over Bruno's trial -- describing Spargo as a remorseless offender who deserves the maximum time in prison under federal sentencing guidelines. The prosecutor asked Sharpe to give Spargo 41 months behind bars; guidelines call for term of at least 33 months. He also requested Spargo be fined $75,000 and receive two years of supervised release. "A lengthy term of imprisonment and a substantial fine will justly punish him for the severity of his conduct and his utter lack of remorse," stated the Dec. 7 recommendation to Sharpe, written by Raymond N. Hulser, acting chief of the Public Integrity Section of the Justice Department's Criminal Division.

In turn, Spargo's attorney, E. Stewart Jones, requested a sentence below federal guidelines. He called Spargo's actions "clearly aberrant criminal conduct." Jones asked for no fine or at most the minimum $7,500. He stated that Spargo, now disbarred, is financially destitute and will likely never again practice law. Jones even identified Spargo as a "warm, considerate, kind, compassionate and good guy" in a 15-page memo to Sharpe. Both memos are filed in U.S. District Court, where Spargo will be sentenced Dec. 21. "He has lost his self-esteem and self-worth," Jones' memo stated, adding that Spargo "embarrassed, shamed and humiliated himself" and let down his family. Jones argued the personal and professional punishments to Spargo, as well as the conviction, make any further punishment unnecessary and redundant. Spargo, 66, of East Berne, was convicted Aug. 27 of attempted bribery and attempted extortion for trying to shake down attorneys and solicit a $10,000 bribe to pay then-mounting legal bills. Just last week, he was officially disbarred by a state appeals court. A longtime pre-eminent Republican election law attorney, Spargo began his judicial career after he was cross-endorsed in a deal that led to a 14-year term in state Supreme Court in 2001. While the judge's chambers had been in Albany, Spargo presided over cases in Ulster County, within the state's Third Judicial District.

By January 2002, Spargo was facing accusations of ethical violations from the state Commission on Judicial Conduct, though unrelated to his future troubles. His legal bills would eventually exceed $140,000. At Spargo's trial in August, the government proved he tried to shake down attorneys to offset those legal costs. One of those lawyers, Bruce Blatchly, an Ulster County lawyer with more than 32 years of experience, had eight cases before the judge. On Nov. 13, 2003, Spargo solicited a $10,000 bribe from Blatchly. When the lawyer declined to pay up, Spargo pressured him again through a friend -- attorney Sanford Rosenblum -- in the coat room of a Kingston restaurant, the government said. While testifying during the trial, Blatchly said Spargo called him on his cell phone on Dec. 19, 2003. He said Spargo boasted that he would be returning to Ulster County in 2004 and handling Blatchly's cases. He testified that Spargo also informed him that Spargo's close friend, Albany County Surrogate's Court Judge Cathryn Doyle, was expected to preside over Blatchly's divorce from his now ex-wife. Spargo remarked that "it looked like a nice Christmas for him," Blatchly testified. At the time, Senior Trial Attorney Richard C. Pilger, who prosecuted the case, asked Blatchly how Spargo's remark made him feel. Blatchly replied. "... now that my divorce was in his control, or the control (of) his friend ... screwed."

On Monday, the federal government argued that Spargo remains without remorse. The government's letter to Sharpe noted that as recently as Oct. 28, Spargo insisted "Blatchly's testimony was inaccurate," while being interviewed for a pre-sentencing probation report. Spargo also told the probation office he went to trial because the federal government "was requesting that he incriminate his friends," which the government said is not true. The government dubbed Spargo's remarks to the probation office as "further evidence of his shameless refusal to accept responsibility." Its letter stated: "As a lawyer and judge, the defendant enjoyed numerous advantages in life. Rather than use those many advantages to honor the high office to which he was elected by his community, Judge Spargo turned his back on his duty for purely venal purposes..." In Jones' request for a more lenient sentence, he asked Sharpe to sentence his client to a facility close to his family in the Capital Region. Robert Gavin can be reached at 434-2403 or rgavin@timesunion.com.

New York's Ethics Lapdogs

Beyond Bruno
The New York Post by DAVID GRANDEAU - December 8, 2009

Former state Senate Majority Leader Joseph Bruno has been found guilty on two counts in his federal corruption trial, but the issue of corruption in New York remains all too alive. In that light, it's worth noting that both the prosecution and defense invoked images of a schoolyard bully in their colorful closing arguments. The prosecution said Bruno was the bully in the Albany schoolyard, that he used the muscle of his government office to influence unions and others to do business with the private firms that employed him and gave him lucrative payments.

The defense said, in effect, that Bruno might have been a bully -- but that teachers and the principal were right there in the schoolyard with him, saw what he was doing and approved. The schoolyard problems should stay in the schoolyard, the defense argued, and not be turned into a federal case. As outrageous as that argument might seem, it's both accurate and correct. It shouldn't have taken a federal indictment to address the conduct at the center of the Bruno trial. State watchdogs (the teachers and principals) should have handled it. In fact, I'd argue that all of the Albany scandals of recent years are rooted in the fact that state watchdogs simply haven't done their jobs. They've refused to take a firm stand on integrity, and been way too cozy with the people they are supposed to be watching. Rather than watchdogs, they've acted as pet lapdogs to the politically powerful. Now the typical reaction to scandal by both pundits and even good government groups is to say, as they always have: "We need stronger laws!" But the reality is that we don't need stronger laws -- we need stronger watchdogs that aren't afraid to bite. The Legislative Ethics Commission (a contradiction in terms at this point) is controlled by the leaders of the Legislature, who appoint members from their own ranks. And history has shown that members of the Legislature simply don't act against their colleagues, even in the face of egregious abuse.

One of the most extraordinary revelations of the Bruno trial is that lawyers for the Legislative Ethics Commission actually advised lawmakers not to send their ethics disclosure filings through the mail, so as to help avoid the possibility of federal mail-fraud charges. Shocking -- but also business as usual in Albany's political playground. Similarly, the state's Public Integrity Commission is controlled by the governor, who appoints the majority of its members, usually from the ranks of friends and former associates. Recent history shows why this doesn't work. The executive director of the commission, a friend of then-Gov. Eliot Spitzer, leaked information on the Troopergate probe to administration officials while it was investigating the administration. The executive director later resigned in disgrace -- but the commission itself has failed to accept responsibility and has even appointed one of the lawyers implicated in the scandal to be its new executive director. I'm convinced that if we want to prevent or slow down the amount of corruption in Albany, we need to remove those regulators who have acted as enablers, find new regulators who truly understand the job and accept the imperative of making lawmakers uncomfortable with their scrutiny. If the good-government groups and editorial boards want to pass a new law, they should start by supporting Assembly Speaker Sheldon Silver's bill to eliminate the Public Integrity Commission and the state's Legislative Ethics Commission. Think of the schoolyard. Do we want the bully to appoint the principal from the ranks of his chums? Of course not. We need adult supervision in Albany. And until we get it, the bullies will continue to run the schoolyard.

David Grandeau is the former executive director of the New York State Lobbying Commission.

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Department of Justice Press Release

For Immediate Release
December 7, 2009 United States Attorney's Office
Northern District of New York
Contact: (315) 448-0672

Former New York State Senate Majority Leader Joseph L. Bruno Convicted of Scheming to Defraud the Citizens of New York of His Honest Services

ALBANY, NEW YORK—United States Attorney Andrew T. Baxter and Special- Agent-in- Charge John F. Pikus of the Albany Division of the Federal Bureau of Investigation announce the verdict of a federal jury in Albany following the three-week trial of Joseph L. Bruno, the Former Majority Leader of the New York State Senate. After seven days of deliberation, the jury convicted Bruno on two felony counts, acquitted on five counts, and were unable to reach a verdict on one count of the indictment. The jury found Bruno guilty on the following “honest-services” mail fraud charges: Count 4, which involved Bruno’s dealings with two entities related to Jared E. Abbruzzese—Communication Technology Advisors LLC and Capital & Technology Advisors LLC—that made “consulting” payments to Bruno, which the government contended were not commensurate with legitimate services provided by Bruno; and Count 8, which related to Abbruzzese’s $80,000 “purchase” of a virtually worthless horse from Bruno, which the government contended was a disguised gift to Bruno to compensate him for “consulting fees” that another entity related to Abbruzzese stopped paying to Bruno. The jury acquitted Bruno on five wire/mail fraud counts, which involved Bruno’s activities relating to other entities with which Bruno had private business arrangements—Wright Investors’ Service (Count 1), Asentinel (Count 2), two other entities related to Jared E. Abbruzzese (Counts 5 and 6), and BB Gardner Management Corporation (Count 7). The jury deadlocked on Count 3, which involved the activities of Bruno relating to Leonard J. Fassler and various related entities that made “consulting” payments to Bruno, which the government contended were not earned by Bruno for legitimate services. U.S. District Judge Gary L. Sharpe declared a mistrial with respect to the one count on which the jury was deadlocked. The United States Attorney’s Office will consider whether to re-try Bruno on that count following post-trial motions and after appropriate internal deliberation. Sentencing was scheduled for March 31, 2010 before Judge Sharpe. Joseph L. Bruno faces a sentence of up to 20 years in prison and a fine of up to $250,000 for each count on which he was convicted. The parties consented to a bench trial on the government’s asset forfeiture demand.

United States Attorney Baxter made the following statement regarding the Bruno verdict: “We commend the jury for their dedicated and patient service. The jury’s guilty verdict on two felony counts reflects their unanimous determination that Joseph L. Bruno deprived of the citizens of New York of his honest and faithful services, contrary to federal law. I am extremely proud of Assistant United States Attorneys Elizabeth C. Coombe and William C. Pericak, who made a fair and cogent presentation of the government’s case, reflecting the highest principles of federal prosecutors. We appreciate the efforts of the Federal Bureau of Investigation and the Inspector General of the U.S. Department of Labor in developing this seminal case and assisting with the prosecution.” Bruno was charged with carrying out a scheme to defraud the State of New York and its citizens of the right to his honest services by soliciting private business from, and entering into direct and indirect financial relationships with, persons or entities who were pursuing interests before the New York State Legislature or other state agencies. The indictment further alleged that Bruno concealed and failed to disclose the existence and true nature of such financial relationships, and the resulting conflicts of interest while taking discretionary official actions benefitting parties with whom he had those relationships. While New York State legislators are part-time officials permitted to pursue other employment or business activities, the indictment alleged that Bruno improperly exploited his official position and concealed conflicts of interest, contrary to state ethics and reporting laws, with respect to his private “consulting” business. Each count of the indictment alleged particular uses of the mails or the interstate wires in furtherance of the alleged scheme.

United States Attorney Baxter continued: “As the Senate Majority Leader, Joseph L. Bruno had a fiduciary relationship with the State of New York and its citizens requiring disinterested decision making and candid disclosure of the potential motivation behind his official acts. We established at this trial that Bruno exploited his office by concealing the nature and source of substantial payments that he received from parties that benefitted from his official actions and the resulting conflicts of interest.” “The prosecutors and agents involved in this case take no pleasure from what the trial revealed about the culture of the New York State Senate, under the leadership of Joseph L. Bruno. Federal law enforcement in the Northern District of New York will continue to strive to ensure that public officials who breach their public trust will be held accountable, notwithstanding the challenges presented by the state’s inadequate legislative ethics and disclosure laws.”

U.S. Supreme Court Reviews "Honest-Services" Law

Justices to Weigh Honest-Services Law
The New York Times by JOHN SCHWARTZ - December 7, 2009

An unusual coalition of groups has come together to criticize the federal government’s increasing reliance on a statute that is commonly used but little understood: honest-services fraud. The honest-services law, on the federal books since 1988, broadly requires that public and corporate officials act in the best interests of their constituents or employers. It has become an important tool for federal prosecutors, who used it successfully against the lobbyist Jack Abramoff and many of his associates. It is an element of the cases against former Gov. Rod Blagojevich of Illinois; the former New York State Senate majority leader, Joseph L. Bruno; and former Gov. Donald E. Siegelman of Alabama.

Prosecutors have described the law as a valuable instrument against corruption at a time when officials have become increasingly sophisticated at covering their tracks. But critics say it is used too broadly, is applied inconsistently, and too often criminalizes behavior that fails to merit the full weight of federal prosecution. The Supreme Court will hear three cases concerning the honest-services law in this term, with two coming up for oral argument on Tuesday. Opposition to use of the law has emerged from across the political spectrum, from the United States Chamber of Commerce and the Washington Legal Foundation on the right, to the more left-leaning National Association of Criminal Defense Lawyers. “Could an insincere sermon at Sunday religious services come within the statute?” asked the chamber, half sarcastically, in a brief to the Supreme Court. Justice Antonin Scalia has been harshly critical of the honest-services law, writing in a recent dissent that it has been applied to “a staggeringly broad swath of behavior.” He said that it “invites abuse by headline-grabbing prosecutors in pursuit of local officials, state legislators, and corporate C.E.O.s who engage in any manner of unappealing or ethically questionable conduct.”

One of the two cases coming before the court next week involves Conrad M. Black, the newspaper executive who was convicted of defrauding his media company, Hollinger International. He is arguing that the law should not be applied to him because he did not contemplate “economic harm” to Hollinger. In the second, Bruce Weyhrauch, a former Alaska state legislator, was convicted of failing to disclose a conflict of interest. He had not violated state law, however, and argues that the federal prosecution on honest-services charges violates important principles of federalism. The third case, to be argued later in the term, involves Jeffrey K. Skilling, the former chief executive of Enron. He is arguing that the honest-services law is unconstitutionally vague. Melanie Sloan, the executive director of Citizens for Responsibility and Ethics in Washington, a nonprofit watchdog group, scoffed at the idea that the law is so vague that people do not know when they have crossed the line, especially in the three cases before the Supreme Court. “If you go to those cases — Black, Skilling and Weyhrauch — and look at what they did, a kindergartner knows that they were wrong,” she said. “It’s not credible that those guys really had no idea that what they were doing would get them into trouble. What they thought was that they wouldn’t get caught.”

The watchdog group’s brief to the Supreme Court called the law “an indispensable weapon in the prosecutorial arsenal for fighting government corruption” since it offers “a much easier evidentiary burden” than bribery law. Critics of the law, however, say that its vagueness is used to bolster corruption cases in which the evidence might be weak or the offense, while perhaps distasteful, is minor. That is the argument of Larry Remer, a political consultant in San Diego who faced multiple felony charges after successfully running a bond campaign for a community college. After the campaign was over, and the campaign fund depleted, a video production company sent in a bill for $5,800. The college president proposed paying the bill with public money, ostensibly by buying outtakes from the video company, though it is illegal to use public money for such a campaign. Federal prosecutors indicted Mr. Remer and the college president in 2004 on a range of charges related to the improper use of taxpayer money, including honest-services charges. Mr. Remer said he was baffled by the case.

“I do understand the need to get the sleazebags,” said Mr. Remer, whose case ended in a mistrial and a plea of guilty, along with the college president, to misdemeanor charges of improperly using public money, not honest-services charges. “But let’s get them with real laws. Let’s not just say we need to get this guy, so we’ll use this law because it can be melted to meet our needs.” The United States attorneys office in San Diego declined to comment on the case. The honest-services statute grew out of the Supreme Court’s earlier attempts to rein in the widening use by prosecutors of mail and wire fraud laws, said John C. Coffee, a professor at Columbia Law School. In a landmark 1987 decision, the Supreme Court limited mail and wire fraud prosecutions to cases involving tangible goods like money and property, and not the “intangible right” of the people to good government. Within a year, however, Congress restored the prosecutors’ flexible tool by passing the current law.

Since then, critics argue, chaos has resulted, with significant differences across the country in the ways that the statute is interpreted. Bennett L. Gershman, a professor at Pace University Law School, said the power of prosecutors to overreach by focusing on a person to prosecute and then finding a law to apply “is not only subject to abuse under the honest-services theory, but has been abused” in cases like those involving Mr. Siegelman, the former Alabama governor. The charges against Mr. Siegelman, including honest-services fraud, concerned a contribution from a businessman, Richard M. Scrushy, to an issue campaign advocated by the governor, who later reappointed Mr. Scrushy to a state hospital board. The Department of Justice has conducted an investigation of the case and found no misconduct in the prosecution; Mr. Siegelman’s supporters say the investigation was poorly conducted. Mr. Siegelman has appealed to the Supreme Court, which has not decided whether to take up the case. Ms. Sloan, of the watchdog group, said that if prosecutors abused the statute, “it doesn’t mean the whole statute is at fault.” “It means the prosecutors made some bad decisions,” she said. Richard L. Thornburgh, who was attorney general when the honest-services law was passed, said he expected the Supreme Court to issue “something fairly sweeping” since it had taken on so many honest-services cases. But, he added, “I think they can do it without doing violence to proper law enforcement.”

Guilty New York "Lawmaker" Avoids Jail

Monserrate Avoids Jail, But Still Faces Senate Action
The New York Law Journal by Vesselin Mitev - December 7, 2009

The criminal case against state Senator Hiram Monserrate came to an end Friday as the Queens Democrat avoided jail for unintentionally injuring his girlfriend during a fight in his apartment. But the freshman lawmaker's political future remained in doubt, as the judge presiding over his bench trial granted a special Senate committee investigating Mr. Monserrate's conduct access to grand jury testimony and other evidence not presented at trial. Daniel R. Alonso, the Senate committee's special counsel, told the court that the panel had a "fundamentally different" purpose and process than a criminal court—to determine whether one of its members was fit to serve, and needed the access to be able to do its job "fully and fairly." Queens Supreme Court Justice William M. Erlbaum sentenced Mr. Monserrate to three years probation and 250 hours of community service for assaulting his girlfriend, Karla Giraldo, after an argument last December. Mr. Monserrate could have received one year in jail. The judge declined to follow the prosecution's recommendation of 60 days' jail time, but ordered the senator to participate in a 52-week counseling program for batterers. He also declined, at least for the moment, to cancel an order that Mr. Monserrate and Ms. Giraldo stay away from each other frustrating their expressed desire to get married. Mr. Monserrate was acquitted in October of felony charges that he had intentionally sliced Ms. Giraldo's face with broken glass but was found guilty of misdemeanor assault for a "violent and very forceful dragging" of the woman after the incident. Surveillance video showed Mr. Monserrate dragging a bleeding Ms. Giraldo through his apartment lobby and away from a neighbor's door (NYLJ, Oct. 16). A felony verdict would have meant automatic expulsion from the Senate. Despite the judge's rejection of the intentional assault charge, however, several senators have continued to call on Mr. Monserrate to resign or to be removed from office if he refuses. Senate Democratic Leader John Sampson of Brooklyn has appointed a special committee composed of five Democrats and four Republicans chaired by Senator Eric Schneiderman, D-Manhattan, to consider whether the body has the legal authority to discipline Mr. Monserrate and, if so, what penalty would be appropriate. Before sentencing, Justice Erlbaum granted the senator access to Ms. Giraldo's grand jury testimony and "any exhibits ancillary" to the time between the injury and when she arrived at a hospital nearly 40 minutes later.

The prosecution had maintained that Ms. Giraldo told hospital staff the wound near her eye was intentionally inflicted but changed her story to claim that it was an accident after Mr. Monserrate's arrest (NYLJ, Sept. 22). The wound required 40 stitches to close. "We have reason to believe that…not every piece of information valuable to cross-examination got to see the light of day," David Lewis, one of two attorneys representing the committee, told the court. In asking the court to allow access to the grand jury testimony of other witnesses, Mr. Alonso cited the "serious inconsistencies" between Ms. Giraldo's trial and grand jury testimonies as well as the fact that "both sides were in some ways walking on eggshells." It would be "perfectly reasonable for the committee to explore" whether there were other inconsistencies, he said. "Everyone can see what's on the tape," said Mr. Alonso, a partner at Kaye Scholer, referencing the surveillance footage. The question remained, Mr. Alonso said, "Why was he doing it?" But Justice Erlbaum refused the request, saying that while he was sympathetic to the committee's mission. He said he aimed to protect the confidentiality of grand jury proceedings, pointing out that witnesses testified expecting privacy. Further, the judge said, the "state Senate did not have to stand trial in a felony case where one can go to state prison." Joseph Tacopina, one of Mr. Monserrate's attorneys, objected to the motion, stating that the trial record was fully developed. While agreeing that the evidence presented at trial compiled a "treasure trove" of a record, the judge nevertheless granted access to Ms. Giraldo's grand jury testimony and related exhibits.

'Curb Your Anger'

During the hearing, Ms. Giraldo, 30, and Mr. Monserrate, 42, told the court they loved each other and wanted to get married and asked Justice Erlbaum to remove the order of protection. After the judge asked whether Ms. Giraldo was "an autonomous person" or whether she "acted at the bidding of Mr. Monserrate," Ms. Giraldo, who speaks English but testified through a Spanish interpreter, answered that Mr. Monserrate "does not dominate me…he doesn't have any control over me." The judge then asked if Ms. Giraldo condoned Mr. Monserrate rifling through her purse and throwing out items he did not approve of. According to testimony at trial, their dispute started when Mr. Monserrate found another man's Patrolman's Benevolent Association card in his girlfriend's wallet and angrily threw it out. Ms. Giraldo replied that "if he doesn't like it, if it's going to create problems, then it's fine, he can throw it away." Mr. Monserrate told the court he was sorry for his actions and that he was "committed to providing [Ms. Giraldo] happiness." Justice Erlbaum asked if he could "curtail your jealousy" and whether Ms. Giraldo needed his permission to make decisions. "No, she does not need my permission—she is an independent person," the senator answered. Justice Erlbaum refused to lift the order of protection, although he left open the possibility that it could be lifted in the near future, upon a showing that Mr. Monserrate, a former Marine, had begun receiving treatment for his anger issues. Justice Erlbaum expressed his hope that Ms. Giraldo would "have the self-respect to stop acting like a slave" and urged Mr. Monserrate to "curb your anger." In a statement, Queens District Attorney Richard A. Brown said he was "somewhat disappointed" that no jail time was imposed as the sentence did not "adequately deter further acts of domestic violence by this defendant or others." Mr. Tacopina, of Manhattan's Tacopina Seigel & Turano, said he was "thrilled" with the sentence but said he planned to file a notice of appeal on the reckless misdemeanor count. The Senate committee is expected to wrap up its findings by the end of the year but no deadline has been set for a final report. Mr. Monserrate played a leading role in a leadership dispute that snarled the Senate for weeks, at first aligning himself with the Republicans and then returning to the Democrats. Even if he survives the Senate committee's probe, he will have a tough fight for reelection next year. Queens Democrats already have announced their support of another candidate. Vesselin Mitev can be reached at vmitev@alm.com.

PRESS RELEASE from Public Committee on Attorney Conduct

PCAC Seeking Citizen Control Over Attorney Grievance Committees
PUBLIC COMMITTEE ON ATTORNEY CONDUCT
Tel: 347-632-9775 email: pcacinformation@gmail.com Fax: 206-309-0450 Web: www.pcac.8k.com

PRESS RELEASE
FOR IMMEDIATE RELEASE

Public Committee on Attorney Conduct Welcomes New York State Senate Judiciary Committee Scheduling of Expanded Hearings into Lawyer Grievance Process.

PCAC Again Urges New York Senate Committee Chaired By Senator John Sampson to Draft Legislation to Replace Current Attorney-Controlled Grievance Administration With Citizen Review Boards.

New York, NY. - Public Committee on Attorney Conduct (PCAC) has issued a statement in response to the announcement by New York State Judiciary Committee chaired by Senator John L. Sampson, D-Brooklyn (19thDistrict) scheduling expanded hearings to review the state’s judicial system. The prime focus of the hearings is centered on the operations of the Appellate Division First Department Departmental Disciplinary Committee, the grievance committees of the various Judicial Districts, as well as the New York State Commission on Judicial Conduct. The hearings are slated for Monday, September 14 at 250 Broadway (19th Floor Hearing Room) beginning at 10 am.

The Committee’s action follows earlier hearings in New York and Albany at which a series of witnesses presented testimony outlining charges of widespread fraud and corruption by the current staff and administrators of the lawyer disciplinary committees.

PCAC has issued the following statement to Senator Stanton and the Senate Judiciary Committee:

Public Committee on Attorney Conduct (PCAC) welcomes the scheduling of additional hearings into the record of fraud and abuse by the Attorney Grievance Committees in New York State. PCAC also renews its request that the New York State Judiciary Committee draft legislation to replace the current attorney-controlled grievance committees with new citizen controlled boards to review lawyer misconduct. PCAC advocates that control of the grievance process should be placed in the hands of capable and honest citizens, who have requisite knowledge and experience in dealing with ethical issues, including business owners, management executives, the clergy, teachers, professors, personnel administrators and human resource executives.

Recently filed citizen lawsuits filed in federal courts have presented clear evidence of widespread corruption and abuse by the state’s disciplinary committees. Charges have included concealment of evidence, obstruction of justice, sexual assault by attorneys, pilfering of estates by attorneys, abuse of power, fraud, conspiracy and repeated violations of Constitutional rights. These lawsuits have led to the present hearings by the Senate Judiciary Committee.

PCAC seeks the immediate replacement of the present lawyer-controlled disciplinary system with a fair, transparent and totally impartial and open public process. This needed reform will make it be possible to restore faith in the state’s legal system and the bar on which it relies.

In announcing the issuance of the Committee’s statement, John T. Whitely, PCAC President, stated, “PCAC applauds the continuing actions of Senator John Sampson and the Senate Judiciary Committee in holding wide ranging hearings on the state’s corrupt attorney disciplinary process, which we and others have found to be presently managed and controlled by money, favoritism and cronyism. The keystone of these reform efforts must be the replacement of the current failed system with a new structure controlled by non attorneys. The thought that attorneys should be left alone to police themselves is simply ridiculous. Immediate reform is needed. “

PCAC was established in 2007 by affiliated member organizations, including Litigation Recovery Trust (LRT), a New York based rights administration organization, and Integrity in the Courts, and Expose Corrupt Courts, two Internet blogs focused on judicial and attorney disciplinary processes and procedures. PCAC represents the first bar review mechanism in the United States established by non-attorneys. The objective of the PCAC is to assist in replacing the existing New York State Attorney Grievance Committees with a body controlled by non-attorneys. PCAC is headquartered in New York City. Requests and documents are being received by PCAC at its email address: pcacinformation @gmail.com. Telephone inquiries can be directed to 347-632-9775. For additional information, contact the PCAC website at www.pcac.8k.com.
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For additional information please contact:

John T. Whitely,
President
Public Committee on Attorney Conduct
515 Madison Avenue
New York, NY 10022
Telephone 347-632-9775
E-mail: pcacinformation@gmail.com
Web: pcac.8k.com

Expose Corrupt Courts
Email:corruptcourt@gmail.com
Web: www.exposecorruptcourts.blogspot.com

William J. Hallenbeck
Executive Director
Litigation Recovery Trust
515 Madison Avenue
New York, New York
Telephone 6462019269
E-mail: lrtinformation@gmail.com
Web: litigationrecoverytrust.8k.com

Frank Brady
www.FrankBrady.org and www.IntegrityintheCourts.com
Email: integrityinthecourts@gmail.com

About Public Committee on Attorney Conduct
The Public Committee On Attorney Conduct reviews both past and present cases brought before the New York State grievance committees to provide an independent assessment and analysis of the facts, and issue proposed findings. With respect to past cases, the committee will hear from persons, who maintain that they have been treated unfairly and unjustly by the state disciplinary committees. As part of its efforts, the committee is actively seeking documentation of all complaints against any attorneys dating to January 1, 1988. Public Committee On Attorney Conduct includes as members individuals, who through their personal and professional lives have established a reputation of responsibility and fairness. While attorneys will be available to the PCAC as advisers, all voting members issuing formal reports and decisions will be non attorneys. PCAC is the first such lawyer conduct review organization in the U.S. to be controlled solely by non attorneys.

About Litigation Recovery Trust
Founded in 1995, Litigation Recovery Trust is a New York based claims and rights administration organization. LRT pursues claims and causes of action worldwide, and processes single and group litigation claims, as well as general rights fees and awards. LRT also participates in legislative and administrative initiatives designed to protect or advance individual claims and rights.

About Integrity in the Courts
Integrity in the Courts focuses on ethical and legal issues related to the administration of justice nationwide. Issues impacting both the judiciary and the bar are examined, including compliance with codes of judicial conduct, and codes of professional responsibility. Violations of law and failure to abide by codes of conduct are monitored, together with actions leading to disciplinary rulings, including attorney admonishments, reprimands, censures, suspensions and court ordered losses of licenses to practice law.

About Expose Corrupt Courts
Since beginning publication in March 2007, Expose Corrupt Courts has become one of the leading sources of both public and inside information concerning bench and bar misconduct. While the blog focuses primary attention on the court system of New York State, it regularly covers stories of interest throughout the U.S. Expose Corrupt Courts has led coverage of the massive corruption charges that have been filed against the attorney grievance committees in New York resulting in the filing of over a dozen law suits with the federal district court in Manhattan.

Creating Public Pride: Third Judge Charged With Fraud

Feds Charge Third Luzerne County, Pa., Judge With Fraud
The Legal Intelligencer by Hank Grezlak and Leo Strupczewski - December 3, 2009

Federal authorities have charged Luzerne County Judge Michael T. Toole with honest services fraud and with filing a false tax return.

The U.S. Attorney's Office for the Middle District of Pennsylvania announced the charges and an accompanying plea agreement Wednesday afternoon. Toole faces a maximum of 23 years in prison and a fine of $350,000. Under his plea deal, Toole has agreed to cooperate with federal authorities and provide information "concerning the unlawful activity of others." He will also resign from the bench as part of his plea agreement. According to the criminal information released by federal prosecutors, Toole allegedly concealed a financial relationship with an attorney who appeared before him and "improperly" ruled in that attorney's favor in civil litigation cases. The attorney was not named and referred to by the government as "Participant 1." That charge against Toole marks the first time during the Luzerne County corruption probe that authorities have charged anyone related to the alleged case-fixing in UM/UIM arbitration cases. The Legal Intelligencer first reported in February that federal investigators were looking at how those arbitration cases were handled in Luzerne County.

In addition, Toole also allegedly failed to disclose on his income tax return a $30,000 referral fee he received in cash from another attorney. That attorney was also not named by the government and referred to as "Participant 2." However, multiple sources have identified "Participant 2" as attorney Robert Powell, whose alleged kickbacks to two other judges in relation to the private juvenile detention center he co-owned were first revealed in January. When asked if Powell was "Participant 2," his attorney, Mark B. Sheppard of Montgomery McCracken Walker & Rhoads, said he could not comment on an ongoing investigation. Toole is the third judge from Luzerne County's courthouse to be charged by the federal government this year. Former Judges Michael T. Conahan and Mark A. Ciavarella Jr. were charged earlier this year with honest services fraud and later federal racketeering.

The announcement ends months of speculation regarding Toole's fate. The Legal Intelligencer first reported back in March that Toole was under scrutiny from federal authorities. Sources told The Legal Intelligencer back in April there were ongoing negotiations between Toole's lawyers and the government. Several times over the past few months rumors have surfaced that Toole's plea deal was "imminent" only to be proved incorrect. However, multiple sources had confirmed weeks ago that Toole had signed his plea agreement. According to the plea agreement, Toole and his lawyers signed it Sept. 25. One knowledgeable source told The Legal Intelligencer there was frustration on the part of some investigative agencies that Toole was allowed to stay on the bench after he had signed his plea agreement. When asked about the delay, Heidi Havens, a spokeswoman for the U.S. Attorney's Office, directed a reporter to a sentence in the office's release announcing the agreement, which read: "Because the Information contains a charge relating to a tax matter, the Office of the United States Attorney for the Middle District of Pennsylvania was required to obtain separate approvals for the charge from Department of Treasury and Department of Justice officials in Washington." Havens said her office would have no other comment.

Luzerne County Common Pleas Court President Judge Chester B. Muroski said Toole, who abruptly notified the court last month that he was taking vacation, never notified him of pending charges or a plea agreement. Had he known about Toole's plea agreement, Muroski said, he would have refrained from giving Toole "any judicial assignments" and would have reported Toole to the Judicial Conduct Board and the Administrative Office of Pennsylvania Courts. "I don't know how anyone can function as a judge once they enter into a plea agreement with the government," Muroski said. Toole's attorneys, John Rogers Carroll and Frank W. Nocito, had no comment on the agreement. When asked why there was no announcement immediately following that, sources were split on the reason for the delay. Several speculated there may have been bureaucratic delays in getting approval from the Department of Justice in Washington, D.C. According to the criminal information, Toole allegedly accepted things of value -- such as the use of a beach house at the New Jersey shore -- and then improperly ruled in favor of "Participant 1." One of the ways Toole was alleged to have ruled improperly in that attorney's favor was in the manner in which Toole oversaw the appointment of a neutral arbitrator in a UM/UIM case the attorney was handling in March 2006. According to the information, Toole, "through the use of an intermediary, secretly asked Participant 1" to tell him who the attorney wanted him to appoint as a neutral arbitrator in the case. Toole appointed the person "Participant 1" requested, the information said.

The appointment was "corrupt, deceptive and biased and was made in a manner that undermined the fairness and integrity of the arbitration process" since Toole had received things of value from "Participant 1," the information said. Toole later issued an order in November 2007 requiring the arbitrators to rule on the case, the information said. The statements of financial interest Toole filed with the Administrative Office of Pennsylvania Courts in 2006, 2007 and 2008 were false because they did not identify "Participant 1" as a source of income or gifts, the information said. Luzerne County court officials previously provided federal investigators with a list of 80 petitions to appoint neutral arbitrators in UM/UIM cases. Toole had the second-highest amount of appointments of any judge, with 16. According to the information, Toole referred a case to "Participant 2" in 2005 and later accepted a cash payment of $30,000 in October 2006. Toole failed to report that money on his tax return, the information said. Those sources who have identified Powell as "Participant 2" have said the cash payment was made in a bar after attending a wake. Toole is scheduled to appear in court Dec. 29 at 11 a.m. at the Scranton federal courthouse.

New York Lawyer Gets 14 Years for Threatening Witnesses

Simels Gets 14 Years in Prison; Case Against Associate Dismissed

The New York Law Journal by Mark Fass - December 7, 2009

The prosecutions of attorney Robert Simels and his former associate Arienne Irving, both of whom were convicted in August of conspiring to threaten witnesses, came to very different conclusions on Friday. Eastern District Judge John Gleeson sentenced Mr. Simels to 14 years in federal prison and a $225,000 fine. "These are such egregious crimes," Judge Gleeson told Mr. Simels. "You need to be punished for them not because you are a member of the profession, not because it's an affront to this court. You are a criminal defendant and you committed crimes deserving of punishment that reflects the seriousness of the crimes." As for Ms. Irving, 3 1/2 hours before the sentencing, the judge granted her Rule 29 motion, throwing out the jury's verdict and dismissing her case. Ms. Irving did not attend the sentencing, instead celebrating the dismissal with her parents in midtown Manhattan. In an emotional speech before Judge Gleeson ruled, Mr. Simels, 62, was apologetic and remorseful. He spoke at length about the effects of his trial, conviction and sentencing on his young son and teenage daughter. "I have an 8-year-old son who doesn't understand," Mr. Simels said. "'How will you get there? When will you be back?' are questions without answer for an 8-year-old." Mr. Simels' attorney, Gerald Shargel, told the judge that his client was a "broken man." "You have a lot of evidence before you that Mr. Simels is a good and decent man," Mr. Shargel said.

Mr. Shargel also argued that the court need not impose a "draconian" sentence to deter other defense attorneys from threatening witnesses or obstructing justice. "The bell has been rung," Mr. Shargel said. "The message has been sent." Assistant U.S. Attorney Morris Fodeman acknowledged the "severity" of the sentencing guidelines, 30 years to life, but argued that Mr. Simels' crimes merited such a sentence. "The government submits that the circumstances of this crime demand a severe sentence," Mr. Fodeman said. "Justice demands a fair sentence." Judge Gleeson, who like Mr. Simels, is the father of two young children, was visibly and openly moved by the letters sent in support of Mr. Simels. "Some of these letters just absolutely tear at the heart," the judge told Mr. Simels, "particularly the one from your wife." The judge also said that, at sentencing, Mr. Simels should neither benefit from nor be punished for being a lawyer. Rather, he said that Mr. Simels should be punished for bribing witnesses, suborning perjury and committing perjury. Judge Gleeson denied Mr. Simels' request for bail pending appeal, but gave Mr. Simels until Jan. 8 to remand himself to prison. The judge said he would personally call the Federal Bureau of Prisons to request Mr. Simels' choice, the federal prison at Otisville, which is near Mr. Simels family in Westchester.

In a statement Friday, Eastern District U.S. Attorney Benton J. Campbell said, "The defendant's license entitled him to practice law—it was not a license to commit crimes. Those who attempt to subvert the criminal justice system will be vigorously investigated and prosecuted with all the resources at our disposal." Ms. Irving's reversal of fortune could hardly have been more dramatic. Her attorney, Javier Solano, received a ding on his BlackBerry from the court's Electronic Court Filing system while standing in line at Starbucks. Sentencing was less than four hours away. Ms. Irving was in her parent's midtown hotel room. "I did not know if she would be walking out of that courtroom," Mr. Solano said. "She had to prepare for the worst, and that preparation was spending literally the last hours with her parents." Judge Gleeson's order, posted at 11:23 a.m., stated simply, "Defendant Irving's motion to set aside the jury verdict pursuant to Rule 29 is granted in its entirety. The case as against her is dismissed. An opinion will follow." When Mr. Solano reached Ms. Irving on her phone, she did not believe him. Mr. Solano told her, "Arienne, of all things, do you think I'd be kidding about this?" Ms. Irving's legal travails are not over: Federal prosecutors may pursue an appeal of Judge Gleeson's decision, and the Appellate Division, First Department, disciplinary committee has initiated proceedings against her. A spokesman for the U.S. attorney's office said, "We'll review the judge's opinion and consider our options." As for the disciplinary proceedings, Mr. Solano said, "I would hope with all that she's been through they would take Judge Gleeson's opinion, considering he has heard the entire case, and use that to discontinue the proceedings." On Thursday, Ms. Irving faced disbarment and the possibility of spending a decade or more in prison. Today, her biggest problem may be that she is yet another unemployed lawyer in a depressed market. "She'll take that in a heartbeat," Mr. Solano said. Mark Fass can be reached at mfass@alm.com.

Tom Robbins Insight Into The Bowels of New York's Corruption

Joe Bruno and the Life Fantastic

The Village Voice by Tom Robbins - December 1, 2009
The divine rights of an Albany powerbroker

One of the best snapshots of the wonderful world that Joe Bruno inhabited was a memo to the former State Senate leader from one of his many aides: On April 11, 2005, Amy Leitch—Bruno's $93,000-a-year special assistant—wrote to update her boss on several important matters.
Matter number one was a contractor's estimate for a new roof on the veteran lawmaker's farmhouse in nearby Brunswick. The cost would be $11,180, she wrote. The bid included a 30-year warranty on the roof shingles and a four-year guarantee on the work itself. If Bruno didn't like that number, she informed him, another builder was due to offer his own estimate for the job the following week. It is widely accepted that elected office carries certain perks. Among these are choice parking spots, no waiting in line, and reserved seats at public concerts. But the corruption trial of Joe Bruno over the past month has provided an entirely new tutorial on the depth and scope of political entitlement. Who knew, for instance, that it was standard procedure for your Senate secretary to arrange a roofing job for your own house?

Matter number two on Leitch's memo concerned an even better benefit: This involved a meeting that the senator's staff was arranging for a trucking mogul with the state official in charge of rebuilding the World Trade Center site. The trucker, a man named Russell Ball, was then paying Bruno $20,000 per month in exchange for the Senate leader's sage advice. What Ball was hoping, as he later put it on the witness stand, was that Bruno would help "change the culture" of Ball's company, Roadway Contracting Inc. of Brooklyn. Part of the cultural change that Ball was seeking was access to those signing checks for the huge, multibillion-dollar downtown rebuilding effort. Who better to arrange a meeting with the leaders of the state's Lower Manhattan Development Corporation than Joe Bruno? The silver-haired Republican was not only the key figure in the success or failure of every piece of legislation affecting the site, he was a top member of the corporation's General Advisory Council. He was also, of course, a great patriot who had passionately declared that rebuilding downtown was another way to show the terrorists that Americans cannot be bullied. And if he happened to know a trucker who was fully capable of handling part of this task, why shouldn't he make sure that development officials got a chance to meet him?

On the bottom of the memo, as was his style, Bruno penned a short response to the meeting plan. It was this: "Ken Riddett supposed to be setting up—let me know." This was another example of the marvelous public-private partnership that Bruno had established for himself: Riddett, at the time, was the $180,000-per-year general counsel to the New York State Senate. More precise details about how the senator's Albany aides were enlisted in the support of all things Bruno came from his executive assistant of 24 years, Patricia Stackrow, who testified at the trial in federal court. Stackrow's state salary was $100,000 a year and she worked hard for the money, she said, as much as 80 hours a week. In addition to handling the senator's schedule and appointments, she also opened and responded to all of his personal mail, balanced checkbooks for Bruno and his wife, and did his personal shopping. Stackrow was asked what kind of shopping she was talking about? "Christmas shopping, gifts for his family, gifts for his wife," she answered. Every morning, Stackrow testified, Bruno handed her a packet of his unopened personal mail, which she would then sort through. She would prepare the checks for him to sign in order to keep his bills paid. She endorsed incoming checks from the senator's various businesses, handing them to the senator's state driver to take to the bank to deposit. She kept a ledger as well, which tracked the senator's household expenses, along with those of his horse-breeding enterprise, Mountain View Farm, and any other costs associated with his affairs.

This nonstop private work by public servants on Joe Bruno's personal behalf was ongoing at the same time that another top state official ran afoul of ethics investigators in late 2006. The complaint against former state comptroller Alan Hevesi was that he had allowed a state driver to chauffeur his badly ailing wife around while being paid on the state's dime. This violation created a great public outcry and eventually resulted in Hevesi's resignation and guilty plea to a felony charge of defrauding the government. Back then, some of the loudest catcalls from the sidelines demanding that Hevesi come clean about his terrible transgressions came from none other than State Senate majority leader Joseph Bruno. In fact, Bruno gets credit for being the very first official to call on Hevesi to quit for having brought disgrace on his office. The Senate chieftain insisted that the comptroller's abuses were so extreme that they had "eroded public confidence in him as the state's chief fiscal officer and have damaged his credibility beyond repair." During his decade-plus as chief of the State Senate, Joe Bruno was much praised by those who encountered him. He was a man's man, an ex-boxer, a former sergeant in the infantry in Korea, whose love of horses and the simple life he imparted to all who visited his gracious farm in Rensselaer County. He was also, as the two-week-long trial definitively proved, a man without any shame whatsoever who was himself actively engaged in massive fraud of taxpayers.

The question now is whether Bruno's former legislative colleagues are sufficiently shamed by the trial's revelations to finally do something about it. Pending in the legislature is a bill that would close some of the loopholes that Bruno so thoroughly exploited in order to keep his lucrative private-consultant work a secret. Bruno never had to publicly disclose just how much he was earning in outside income. The new bill would at least let us see what category he fell into: $250,000 or more? $1 million or above? Likewise, Bruno wasn't obligated to say if any of his clients happened to be lobbyists with business pending before the legislature that he was in a position to assist. The new bill would disclose those ties. Also for the first time, a new legislative ethics commission would actually be charged with investigating—by random audit—the annual financial disclosure forms filed by lawmakers. Thanks to the Bruno trial, we now know that legislative leaders worried not at all about deceiving state regulators. But Bruno had his counsel instruct members of his Republican caucus never to send their statements through the U.S. mail, lest they fall prey to federal fraud statutes. "It was all pretty shocking," says bill sponsor Daniel Squadron, the first-term senator representing Brooklyn and Lower Manhattan, of the Bruno trial. "We shouldn't have to rely on the feds for enforcement." The bill would also break up the state's current Commission on Public Integrity, created by former governor Eliot Spitzer, divvying up its chores among new separate arms to monitor lobbyists and state workers. This would supposedly boost ethics enforcement firepower, but it is an odd way to respond to the Bruno scandal. In recent months, the commission sanctioned several powerful unions that had hosted expensive soirees where legislators were wined and dined. It took the added and unprecedented step of sending the names of the legislators who attended over to the current Legislative Ethics Commission for possible action. "There is this sense of entitlement out there, and we have been trying to change the culture," says commission director Barry Ginsberg. trobbins@villagevoice.com

Next Sampson Hearing on Court Corruption Set for December 16th

************ IMPORTANT UPDATE *****

The Next New York State Senate Court Corruption Hearing will NOT be held on December 16th .... A new date will be announced soon.

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NOTICE OF PUBLIC HEARING

Wednesday, December 16th, 2009, 10:00 am - 4:00 pm
NYS Senate Hearing Room
250 Broadway 19th Floor Hearing Room
New York, NY, 10007
Phone: 518-455-2788
Fax: 518-426-6806

SENATE STANDING COMMITTEE ON THE JUDICIARY

NOTICE OF PUBLIC HEARING

SUBJECT: The Appellate Division First Department Departmental Disciplinary Committee, the grievance committees of the various Judicial Districts and the New York State Commission on Judicial Conduct

PURPOSE: This hearing will review the mission, procedures and level of public satisfaction with the Appellate Division First Department Departmental Disciplinary Committee, the grievance committees of the various Judicial Districts as well as the New York State Commission on Judicial Conduct

New York City
Wednesday, December 16, 2009 - 10 A.M.
250 Broadway, 19th Floor Hearing Room
New York, New York 10007

ORAL TESTIMONY BY INVITATION ONLY

The Appellate Division of the Supreme Court is the entity that is legally responsible for enforcing the Rules of Professional Conduct governing the conduct of attorneys in New York State. The Appellate Division Departments have created grievance committees that are charged with the investigation of complaints against attorneys. Within the First Judicial Department the Departmental Disciplinary Committee of the Appellate Division investigates complaints against attorneys. The New York State Commission on Judicial Conduct was created by the State Constitution and is charged with investigating complaints against Judges and Justices of the Unified Court System.

According to the 2009 Report of the Commission on Judicial Conduct, there were 1,923 complaints filed in 2008. Yet of these complaints only 262 were investigated and of those, 173 were dismissed. This hearing will examine the processes and procedures that are followed by the various agencies charged with the responsibility of enforcing the rules and regulations that must be followed by the Judiciary and the Bar in the State of New York. It will also evaluate public satisfaction with the disciplinary process.

Holder's Army Forging Ahead with Judicial Honest Services Fraud

County jurist 20th person feds charged
The Times Leader by Terrie Morgan-Beseckertmorgan@timesleader.com
Law & Order Reporter

WILKES-BARRE, PA – Months of speculation regarding the fate of Luzerne County Judge Michael Toole ended Wednesday when federal prosecutors announced the jurist has agreed to plead guilty to honest services fraud for improperly influencing a court case, and to tax evasion for an unrelated matter. Luzerne County President judge Chester Muroski announces that Luzerne County Judge Michael Toole signed a plea agreement Sept. 25 to charges that he committed honest services fraud. Toole has agreed to resign from office, according to the plea agreement. The uninsured motorist case that led to charges against Luzerne County Judge Michael Toole isn’t the first such case to draw scrutiny. Attorneys have questioned Toole’s judgment in the naming of a neutral arbitrator and his refusal to dismiss a case against an insurance company on technical legal grounds, court records show.

In 2005 attorney Robert Smith of Scranton sought to have attorney Brian Corcoran removed as the neutral arbitrator in the case of Matthew Cienciva vs. Farmers Insurance. Smith had argued Corcoran, who had been appointed by Toole, had a conflict of interest because of Corcoran’s relationship with attorney John Nardone, who represented Cienciva. Smith had learned Corcoran had chosen Nardone to serve as the plaintiff’s arbitrator in at least four cases Corcoran brought against various insurance companies. That created an appearance of impropriety, Smith argued. A transcript of the hearing shows Toole gave Smith a dressing down, telling him it was up to the attorney appointed as the arbitrator to report if he felt he had a conflict of interest. He denied Smith’s request, saying he believed the attorney was engaging in a “fishing expedition” that would open up a “Pandora’s box” of unjustified challenges to court appointed arbitrators. Toole did not mention that he, himself, had a conflict in hearing the Cienciva case because he had a financial relationship with Nardone.

Statements of financial interest Toole filed in 2004 and 2005 list Nardone as a source of income. The transcript of the Cienciva hearing shows Toole never mentioned that relationship. Smith never appealed Toole’s ruling. The case settled out of court before going to the arbitration panel for a decision. Questions regarding Toole’s relationship with Nardone surfaced again this April, when attorney Michael Blazick filed a motion seeking to recuse Toole from the case of Charles Davis vs. Hartford Insurance. Blazick was seeking to overturn a $2.9 million uninsured motorist arbitration award that had been entered in favor of Davis, who was represented by Nardone. Toole was set to rule on a motion Blazick filed that sought to dismiss the case against Hartford on legal grounds. He sought Toole’s recusal after he read media reports regarding the Cienciva case and learned, for the first time, that Toole had a financial relationship with Nardone. Toole granted that request in August. Senior Judge Carson Brown was appointed to hear the case. A hearing on the motion to dismiss is scheduled for Monday. A complaint filed by the U.S. Attorney’s Office says Toole secretly communicated with a plaintiff’s attorney to appoint a person that attorney had sought as a neutral arbitrator in an uninsured motorist case. The neutral arbitrator is part of a three-person panel and is a key vote in deciding how much money to award or not award a plaintiff. Unbeknownst to the insurance company, Toole had a “long standing financial relationship” with the attorney, identified as “participant #1,” the complaint says. Toole had also stayed multiple times at a New Jersey beach house prosecutors say was “controlled” by the attorney, free of charge. He failed to disclose any of that information to the insurance company or to recuse himself. In a separate matter, Toole is also charged with failing to report on his income tax return a $30,000 referral fee he received from another attorney, who is identified a “participant #2.” Rumors that Toole would be arrested have been circulating for months. They intensified last month, when Toole, who has served on the bench since 2004, suddenly announced he was taking several weeks of vacation and had rescheduled all his cases to be heard in December and January.

His arrest is the latest to rock the county. He is the third county judge and 20th person overall to be snagged in the ongoing corruption probe. A plea agreement filed simultaneously with the complaint says Toole will plead guilty to one count each of honest services fraud and tax evasion. He has agreed to resign from office within 10 days of the acceptance of the plea, which is scheduled for Dec. 29 at 11 a.m. before U.S. District Judge Richard Conaboy. The charges carry a maximum sentence of up to 23 years in prison and a $350,000 fine. Prosecutors have agreed to seek a lesser sentence, however, if Toole follows through on a promise to cooperate in the investigation of wrongdoing of others. Toole could not be reached for comment Wednesday. His attorney, Frank Nocito, declined to comment. The federal complaint does not identify which underinsured motorist case Toole influenced, but details contained in the federal charges indicate it involves a $1.2 million arbitration award entered on behalf of Richard Gazenski of Wilkes-Barre. The case was filed by attorney Harry Cardoni of Cardoni and Associates in Kingston against Erie Insurance Exchange. Uninsured motorist claims involve drivers who sue their own insurance company to recover money for injuries caused by another driver who had little or no insurance. Disputes over the amount of money due are settled by a three-member arbitration panel. The plaintiff and defense attorney each choose one person. Together they chose a third, neutral arbitrator. If they cannot agree, a judge can appoint the neutral.

According to the federal complaint, in March 2006 Toole presided over a proceeding to select a neutral arbitrator. In November 2007, the parties filed a motion before Toole seeking to force the arbitrators to render an opinion in the case. Court records show the Gazenski case is the only uninsured motorist case that Toole heard in which he entered court rulings during the time period in question. According to the records, on March 6, 2006 Toole granted a motion filed by Cardoni that sought the appointment of attorney Bruce Phillips as the neutral arbitrator in the Gazenski case. On Nov. 30, 2007, Toole issued an order compelling the arbitration panel to meet on Dec. 18, 2007 and to deliberate until they reached a decision. A search of property records in New Jersey show that Cardoni is the owner of a home located at 117 E. Connecticut Avenue in Beach Haven, Ocean County, N.J. Cardoni has not been charged with any wrongdoing. He did not return a detailed phone message left at his office Wednesday afternoon. Attempts to reach him at home were unsuccessful. Contacted Wednesday, Gazenski said he was “blown away” to learn his case appeared to be the subject of the federal case against Toole. Gazenski is an insurance agent with J.W. Hoban and Associates in Wilkes-Barre, which sells Erie Insurance. He was injured in a crash caused by an uninsured driver at Sullivan and South Franklin streets on July 24, 2005, and filed a claim against his own insurance company. “You could blow me away with a feather,” Gazenski said when told of information The Times Leader had uncovered. “You hit me cold. I just don’t know what to do.” Phillips confirmed he served as the neutral arbitrator in the Gazenski case. He said he had no knowledge that anyone had specifically sought to have him appointed to the case. “I can tell you on behalf of myself I played no role in getting appointed,” Phillips said. Phillips said he has served as an arbitrator only a handful of times and had no idea why someone would want to see him appointed to that case. He said he and the other two arbitrators reviewed the case carefully and issued an appropriate award. “It was a lengthy case. I can tell you the decision of the arbitration panel was based on the evidence presented,” Phillips said. Court documents show the panel’s decision was not unanimous. Phillips and Gerard Martillotti, the plaintiff’s arbitrator, voted for the award while James A. Doherty Jr., the defense arbitrator, voted against it. Neither Doherty nor Richard Polachek, the attorney who represented Erie, returned a phone message Wednesday. Martillotti could not be reached for comment.

The federal investigation into uninsured motorist arbitrations awards became public in April, when FBI agents removed 79 files relating to the appointment of neutral arbitrators from the Luzerne County Courthouse. Attorneys previously told The Times Leader that insurance companies have been complaining for years that arbitration process in Luzerne County was biased in favor of plaintiffs. That’s precisely what happened in the case involving Toole, the U.S. Attorney’s office alleges. According to the complaint, Toole, through an intermediary, secretly asked the plaintiff’s attorney whom he wished to serve as the neutral. That attorney relayed the information through the intermediary, and Toole appointed that person. “Judge Toole appointed the neutral arbitrator . . . under the guise that the appointment was made free of deceit, bias, favoritism, self enrichment or conflict of interest,” the complaint says. “In fact, however, the appointment was corrupt, deceptive and biased and was made in a manner that undermined the fairness and integrity of the arbitration process.”

Prosecutors further allege that Toole and the attorney took steps in the summer of 2008 to conceal the fact Toole had stayed free at the attorney’s beach home. Toole also failed to report on his financial relationship with the attorney on Toole’s statement of financial interest for 2006, 2007 and 2008. In the case involving the referral fee, prosecutors say that in 2005, Toole referred a case to an attorney. After that case settled, the attorney paid Toole a referral fee of $30,000 in October 2006. There is nothing illegal about paying a referral fee. The practice is common amongst attorneys, who may refer a case to another attorney should a conflict arise, or if they feel that attorney is better suited to handle a particular case. Toole’s actions constituted a crime because he failed to report the income on his income tax, according to the complaint. The complaint does not identify the person who paid Toole the money. Sources previously told the Times Leader that Toole was under investigation for accepting money from attorney Robert Powell, who has also been charged in connection with the corruption probe. Powell could not be reached for comment Wednesday.

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Who’s been charged?

MARK CIAVARELLA, of Kingston, the former president judge of the Luzerne County Court of Common Pleas, was charged on Jan. 26 with accepting $2.6 million from private individuals in exchange for rulings that benefited two juvenile detention centers the county utilized. He pleaded guilty, but the plea agreement was rejected by a judge. A grand jury issued a 48-count indictment against him on Sept. 9. He is awaiting trial.

MICHAEL CONAHAN, of Wright Township, a former senior judge on the Luzerne County Court of Common Pleas, was charged on Jan. 26 with accepting $2.6 million from private individuals in exchange for rulings that benefited two juvenile detention centers the county utilized. He pleaded guilty, but the plea agreement was rejected by a judge. A grand jury issued a 48-count indictment against him on Sept. 9. He is awaiting trial.

WILLIAM SHARKEY, of West Hazleton, the former Luzerne County court administrator, was charged on Feb. 3 with stealing more than $70,000 in illegal gambling funds that had been turned over to the county by the Pennsylvania State Police Bureau of Liquor Control Enforcement. He pleaded guilty on Feb. 17 and awaits sentencing.

SANDRA BRULO, of Hanover Township, the former Luzerne County probation deputy director of forensic programs, was charged on Feb. 20 with altering a juvenile’s record in an attempt to lessen her potential culpability in a lawsuit filed against her. She pleaded guilty on March 26 and awaits sentencing.

ROSS SCARANTINO, of Duryea, the former Pittston Area School District superintendent and a former member of Luzerne County Community College’s Board of Trustees, was charged on April 16 with accepting money in exchange for the awarding of a Pittston Area contract. He pleaded guilty on May 29 and was sentenced on Oct. 8 to 13 months in prison. He began serving his sentence on Nov. 10.

BRIAN DUNN, of Wilkes-Barre, a Wilkes-Barre Area School Board member, was charged on April 21 with accepting tens of thousands of dollars in kickbacks in exchange for his influence in the awarding of contracts and the hiring of teachers within the district. He agreed to plead guilty and is scheduled to enter that plea on Dec. 16.

JIM HEIGHT, of Wilkes-Barre, a former Wilkes-Barre Area School Board president, was charged on May 18 with accepting $2,000 in cash in connection with support he provided to a contractor trying to obtain a contract with the Wilkes-Barre Area School District. He pleaded guilty on May 29 and is scheduled to be sentenced on Jan. 26.

ROBERT POWELL, of Hazleton, an area lawyer and former co-owner of PA Child Care and Western PA Child Care juvenile detention centers, was charged on June 9 with failing to report illegal activity by two former judges. Prosecutors say he paid former judges Mark Ciavarella and Michael Conahan $772,500 in kickbacks, often disguising the payments as rental fees for docking his boat at the judges’ condominium in Florida. He pleaded guilty on July 1 and awaits sentencing.

KAREN HOLLY, of West Pittston, a former district magisterial judge in West Pittston, was charged on Aug. 5 with stealing more than $5,000 from the Wyoming Valley Sanitary Authority, where she worked as a billing clerk. She pleaded guilty on Aug. 24. She was sentenced on Nov. 23 to 30 days in a halfway house and two years probation.

JOSEPH OLIVERI, of Hughestown, a former Pittston Area School Board member, was charged on Aug. 11 with accepting a bribe for his influence in the awarding of a contract in the school district. He pleaded guilty on Aug. 25 and awaits sentencing.

ROBERT MERICLE, of Jackson Township, a major local developer, was charged on Aug. 13 with failing to disclose his knowledge that Conahan and Ciavarella committed income tax evasion by failing to report money they accepted from Mericle and Robert Powell in connection with the operation and construction of the PA and Western PA juvenile detention centers that Mericle built. He pleaded guilty on Sept. 2 and awaits sentencing.

GERALD BONNER, of Mountain Top, a member of the Luzerne County Housing Authority and a Luzerne County jury commissioner, was indicted on Sept. 1 on a charge of helping a fellow board member obtain a bribe. He has pleaded not guilty. A hearing on a motion to suppress statements he made to federal agents is scheduled for Dec. 16.

WILLIAM MAGUIRE, of Mountain Top, another member of the Luzerne County Housing Authority, was charged on Sept. 11 with corrupt receipt of a reward. Prosecutors said he took money from a business owner in exchange for influencing a Housing Authority contract to that business. He pleaded guilty on Oct. 22 and awaits sentencing.

FRANK PIZZELLA JR., of Plains Township, president of the Wilkes-Barre Area School Board, was indicted on Sept. 15 on a charge he allegedly passed on a $5,000 bribe to help an unnamed person get a teaching position. His arraignment is set for Dec. 18 in federal court in Wilkes-Barre.

BARTON WEIDLICH, a Pittston businessman, was charged with attempted obstruction of justice on Oct. 1. His warehouse was searched for records relating to the Luzerne County corruption probe. Prosecutors allege Weidlich made veiled threats against a witness he suspected was wearing a concealed recording device. His lawyer has filed court papers that state Weidlich is working out a plea agreement with prosecutors.

HOWARD ALLEN BELLAS, of Kingston, a member of the Luzerne County Redevelopment Authority and Wyoming Valley West School Board, was charged Oct. 15 with corrupt receipt of a reward. Prosecutors say he took money in exchange for his influence on the authority in getting a contractor approved for a tax-forgiveness program. He resigned from the authority and the school board on Oct. 16 and has agreed to plead guilty.

RICHARD EMANSKI, of Harveys Lake, was charged Oct. 15 with corrupt payment of a reward for official action. Prosecutors say he installed free carpeting in the residence of a member of the Wilkes-Barre Area School Board as a reward for support of a contract given to Emanski’s business. He has agreed to plead guilty, but no plea date has been set.

ANTHONY SPINOZZA, of Hanover Township, a member of the Hanover Area School Board, was charged Wednesday with accepting a bribe in exchange for his influence in the awarding of a contract within the district. He pleaded guilty on Oct. 26 and awaits sentencing.

BILL BRACE, of Wilkes-Barre, charged on Nov. 12 with receiving a custom-fitted suit in exchange for supporting a contract in 2007 or 2008 when he was Luzerne County’s deputy chief clerk. Brace signed a plea agreement but has not yet appeared in court.

MICHAEL TOOLE, of Wilkes-Barre, a judge, has agreed to plead guilty to honest services fraud and filing a false income tax return. According to a complaint, Toole secretly communicated with an attorney to determine whom that attorney wished to have appointed as a neutral arbitrator in an underinsured motorist case in exchange for the judge’s free use of a New Jersey beach house. He’s also charged with failing to report on his income tax return a $30,000 referral fee he received from another attorney. He is scheduled to plead guilty on Dec. 29.