Court Is Faulted for 'Extreme Brevity' in Dismissing Suit
The New York Law Journal by Joel Stashenko - March 13, 2012
The U.S. Court of Appeals for the Second Circuit has faulted a trial judge for "extreme brevity" in throwing out the lawsuit of an inmate against a doctor. The circuit remanded Hilton v. Wright, 10-135-cv(L)/10-2245-cv (Con), to Northern District Judge David N. Hurd to conduct a proper analysis. The judge had granted summary judgment to the defendants on the plaintiffs' request for damages against Dr. Lester N. Wright. Dr. Wright and the state prison system were sued for allegedly failing to provide timely treatment for inmates with Hepatitis C. The inmates claimed they were denied antiviral drugs until they enrolled in anti-substance abuse programs, even though some inmates were denied entry into the programs if they were soon to be released. The suit was settled as a class action, and the treatment delays were stopped. But the circuit said Judge Hurd "disposed of" the damages claim against Dr. Wright in one paragraph by finding that plaintiffs failed to establish they suffered serious health problems due to the drug treatment rules, and that Dr. Wright enjoyed qualified immunity. The circuit also directed Judge Hurd to reconsider whether the plaintiffs were entitled to $14,000 in legal fees. Judges Ralph K. Winter, Rosemary S. Pooler and Peter W. Hall joined the unsigned March 9 opinion.
Tuesday, March 20, 2012
Tuesday, March 13, 2012
Federal Judge Hints That Another "Fix Is In"
Judge in Case From Yonkers Raises Doubts on Evidence
The New York Times by Benjamin Weiser - March 13, 2012
A federal judge in Manhattan indicated on Monday that she had serious questions about whether the government had proved a key part of its corruption case against a former Yonkers councilwoman accused of selling her vote to approve a proposed luxury mall and housing complex in return for thousands of dollars in secret payments. Prosecutors contend that the councilwoman, Sandy Annabi, dropped her opposition to the mall complex, known as Ridge Hill, and a second smaller project, as part of a conspiracy in which she received payments of nearly $175,000 from a co-defendant, Zehy Jereis, and another man. The payments, which began as early as 2002, were made to “influence and control her official conduct, so that he could in turn sell his control over Annabi to the highest bidder,” a prosecutor said during the opening statement. The judge, Colleen McMahon of Federal District Court, did not dispute that the evidence showed Mr. Jereis had conferred money and gifts on Ms. Annabi. But after sending the jury home, the judge made it clear that she was troubled by what she suggested was a lack of evidence of a criminal conspiracy, and asked for an unusual preliminary argument by prosecutors. Judge McMahon questioned whether prosecutors had proved there was ever a “meeting of the minds” in which Ms. Annabi agreed to the retainer-like arrangement in return for providing Mr. Jereis, the former chairman of the Yonkers Republican Party, with official acts when he sought them. “Where is the evidence of that agreement?” the judge asked. “I’m trying to figure out what the evidence is from which the jury can rationally infer that, going all the way back to 2002, there was this understanding that,” as she put it, “if the day ever came when Zehy ever needed her vote, she’d give it to him.” Beyond payments and gifts, the judge said: “Is that it? There’s nothing else? It’s just the giving and receiving of stuff?” The judge’s comments, which were focused only on charges involving the Ridge Hill project, came on the eve of what are expected to be motions by the defense after the government rests to dismiss the indictment before the case even goes to the jury. Such requests are routinely made by defense lawyers, and it is rare for judges to dismiss cases at that stage, when the government cannot appeal the decision. Judges may reserve such a decision until after trial and direct an acquittal if they feel that the evidence did not support a conviction. The government may appeal such a ruling. In court on Monday, two prosecutors, Jason P. W. Halperin and Perry A. Carbone, emphasized that they had offered abundant evidence to support a conspiracy charge. They said the evidence showed that Ms. Annabi had received payments and concealed them from council members and others; had carried out official acts for Mr. Jereis, like attending meetings with officials of Ridge Hill’s developer, Forest City Ratner; and later voted to approve the project. Ms. Annabi’s lawyer, William I. Aronwald, and Mr. Jereis’ lawyer, Anthony J. Siano, indicated that they planned to seek dismissal after prosecutors rest, which is expected on Tuesday. There was “no evidence whatsoever that Ms. Annabi joined any conspiracy,” Mr. Aronwald told the judge. At one point during the debate, Judge McMahon, signaling that she understood the prosecutors’ description of the retainer-like agreement that they claimed had existed, invoked an unlikely film reference. “It’s an agreement that when the day comes that your don comes to you and asks you for a favor, you will do a service for him,” she said. “It’s like right out of ‘The Godfather.’”
The New York Times by Benjamin Weiser - March 13, 2012
A federal judge in Manhattan indicated on Monday that she had serious questions about whether the government had proved a key part of its corruption case against a former Yonkers councilwoman accused of selling her vote to approve a proposed luxury mall and housing complex in return for thousands of dollars in secret payments. Prosecutors contend that the councilwoman, Sandy Annabi, dropped her opposition to the mall complex, known as Ridge Hill, and a second smaller project, as part of a conspiracy in which she received payments of nearly $175,000 from a co-defendant, Zehy Jereis, and another man. The payments, which began as early as 2002, were made to “influence and control her official conduct, so that he could in turn sell his control over Annabi to the highest bidder,” a prosecutor said during the opening statement. The judge, Colleen McMahon of Federal District Court, did not dispute that the evidence showed Mr. Jereis had conferred money and gifts on Ms. Annabi. But after sending the jury home, the judge made it clear that she was troubled by what she suggested was a lack of evidence of a criminal conspiracy, and asked for an unusual preliminary argument by prosecutors. Judge McMahon questioned whether prosecutors had proved there was ever a “meeting of the minds” in which Ms. Annabi agreed to the retainer-like arrangement in return for providing Mr. Jereis, the former chairman of the Yonkers Republican Party, with official acts when he sought them. “Where is the evidence of that agreement?” the judge asked. “I’m trying to figure out what the evidence is from which the jury can rationally infer that, going all the way back to 2002, there was this understanding that,” as she put it, “if the day ever came when Zehy ever needed her vote, she’d give it to him.” Beyond payments and gifts, the judge said: “Is that it? There’s nothing else? It’s just the giving and receiving of stuff?” The judge’s comments, which were focused only on charges involving the Ridge Hill project, came on the eve of what are expected to be motions by the defense after the government rests to dismiss the indictment before the case even goes to the jury. Such requests are routinely made by defense lawyers, and it is rare for judges to dismiss cases at that stage, when the government cannot appeal the decision. Judges may reserve such a decision until after trial and direct an acquittal if they feel that the evidence did not support a conviction. The government may appeal such a ruling. In court on Monday, two prosecutors, Jason P. W. Halperin and Perry A. Carbone, emphasized that they had offered abundant evidence to support a conspiracy charge. They said the evidence showed that Ms. Annabi had received payments and concealed them from council members and others; had carried out official acts for Mr. Jereis, like attending meetings with officials of Ridge Hill’s developer, Forest City Ratner; and later voted to approve the project. Ms. Annabi’s lawyer, William I. Aronwald, and Mr. Jereis’ lawyer, Anthony J. Siano, indicated that they planned to seek dismissal after prosecutors rest, which is expected on Tuesday. There was “no evidence whatsoever that Ms. Annabi joined any conspiracy,” Mr. Aronwald told the judge. At one point during the debate, Judge McMahon, signaling that she understood the prosecutors’ description of the retainer-like agreement that they claimed had existed, invoked an unlikely film reference. “It’s an agreement that when the day comes that your don comes to you and asks you for a favor, you will do a service for him,” she said. “It’s like right out of ‘The Godfather.’”
Monday, March 12, 2012
NY Times Editorial: "Federal Judge Should Resign"
Judge Cebull’s Racist ‘Joke’
The New York Times - EDITORIAL - March 5, 2012
Apologizing for atrocious behavior is better than not trying to apologize. Rush Limbaugh’s nonapology to Sandra Fluke for calling her a prostitute was a good example. But sometimes even a seemingly sincere apology is not enough. Richard Cebull, the chief Federal District Court judge in Montana, acknowledged last week that he had sent some of his friends an e-mail containing a joke based on sexual and racist slurs against President Obama. He apologized, directly to Mr. Obama, which is more than Mr. Limbaugh did to Ms. Fluke. But he did it in a way that only exacerbated doubts about his judicial temperament and whether he possesses the balance and impartiality essential for any federal judge. To his credit, Judge Cebull, who was nominated to the bench by President George W. Bush in 2001, admitted that the joke was racist and that he displayed “very poor judgment.” But he also said he did not send the e-mail because it was racist but because it was “anti-Obama.” His dislike of the president is so strong, apparently, he could not resist the urge to violate his ethical duty to avoid intemperate conduct that suggests racial and political bias and an appearance, at least, of impropriety. Although Judge Cebull did not intend for his e-mail to become public, his use of a government computer and an official e-mail account to spread the hateful message removes any claim that his action was purely private. At Judge Cebull’s request, the Judicial Council of the Ninth Circuit Court of Appeals will now consider whether and to what degree to discipline him. It has the power, if it chooses, to reprimand him and temporarily suspend him from hearing cases. It should not be necessary for the appeals court to do that. Judge Cebull has forfeited the trust Americans need to have in the impartiality and judgment of members of the federal bench. He should resign.
CLICK HERE TO SEE BACKGROUND STORY, "Federal Judge Files Ethics Complaint Against Federal Judge."
The New York Times - EDITORIAL - March 5, 2012
Apologizing for atrocious behavior is better than not trying to apologize. Rush Limbaugh’s nonapology to Sandra Fluke for calling her a prostitute was a good example. But sometimes even a seemingly sincere apology is not enough. Richard Cebull, the chief Federal District Court judge in Montana, acknowledged last week that he had sent some of his friends an e-mail containing a joke based on sexual and racist slurs against President Obama. He apologized, directly to Mr. Obama, which is more than Mr. Limbaugh did to Ms. Fluke. But he did it in a way that only exacerbated doubts about his judicial temperament and whether he possesses the balance and impartiality essential for any federal judge. To his credit, Judge Cebull, who was nominated to the bench by President George W. Bush in 2001, admitted that the joke was racist and that he displayed “very poor judgment.” But he also said he did not send the e-mail because it was racist but because it was “anti-Obama.” His dislike of the president is so strong, apparently, he could not resist the urge to violate his ethical duty to avoid intemperate conduct that suggests racial and political bias and an appearance, at least, of impropriety. Although Judge Cebull did not intend for his e-mail to become public, his use of a government computer and an official e-mail account to spread the hateful message removes any claim that his action was purely private. At Judge Cebull’s request, the Judicial Council of the Ninth Circuit Court of Appeals will now consider whether and to what degree to discipline him. It has the power, if it chooses, to reprimand him and temporarily suspend him from hearing cases. It should not be necessary for the appeals court to do that. Judge Cebull has forfeited the trust Americans need to have in the impartiality and judgment of members of the federal bench. He should resign.
CLICK HERE TO SEE BACKGROUND STORY, "Federal Judge Files Ethics Complaint Against Federal Judge."
Former Prisoner May Pursue Malpractice Suit Against Attorney-Former Judge
Former Prisoner May Pursue Malpractice Suit Against Attorney
The New York Law Journal by Andrew Keshner - March 12, 2012
A man whose kidnapping conviction was vacated only after he had spent almost 15 years in prison can proceed with a $26 million legal malpractice suit against his former appellate attorney, a state judge has ruled. The malpractice action by Giuseppe D'Alessandro against attorney John Carro was filed after the Appellate Division, First Department, issued an unusual writ of error coram nobis faulting Mr. Carro for failing to raise "a clearly meritorious speedy trial argument" on appeal (NYLJ, July 1, 2010). On Feb. 29, Manhattan Supreme Court Justice Emily Jane Goodman rejected a motion to dismiss D'Alessandro v. Carro, 100135-2011, filed by defendants who include Mr. Carro, other attorneys who worked on the case and the firm of Carro, Carro & Mitchell. The defendants sought dismissal on two grounds: failure to state a cause of action and the existence of documentary evidence supporting the contention that their former client was "factually guilty." At the very least they sought a dismissal of non-pecuniary damages. But their arguments did not sway Justice Goodman. "While to a casual reader, rather than a legal scholar, it may be sufficient to rely on the conviction as proof of guilt, but for the denial of the [Criminal Procedure Law] 30.30 motion, it would not have gone to a jury. And, if not for the failure to raise the 30.30 [speedy trial] decision on appeal, the duration of plaintiff's incarceration would have been dramatically reduced," she wrote. In 1989, while working as a restaurant manager, Mr. D'Alessandro allegedly confronted an employee he suspected of stealing $3,000 from the cash register with a firearm. Seeking a confession, Mr. D'Alessandro then allegedly forced the employee into the restaurant basement and held him captive for several hours. Prosecutors initially offered to allow Mr. D'Alessandro to plead to a lesser crime than second-degree kidnapping. Mr. D'Alessandro refused and prosecutors said they warned him that rejecting the deal would lead to a first-degree kidnapping charge, which carried a minimum sentence of 15 years. His trial lawyer moved to enjoin the district attorney from filing the second indictment and about 10 months later moved to have the indictment dismissed on speedy trial grounds. That motion was rejected by now-retired Justice Jerome Hornblass. In 1991, a Manhattan jury convicted Mr. D'Alessandro on charges that included first-degree kidnapping.
To handle his appeal, Mr. D'Alessandro turned to Mr. Carro, who had served 25 years on the First Department bench before retiring. Mr. Carro filed an unsuccessful appeal that raised several issues but did not mention the speedy trial question. People v. D'Alessandro, 230 AD 2d 656. Mr. Carro told the Law Journal in 2010 that the record he received as he prepared the case on appeal in 1996 did not refer to the speedy trial motion or its denial. In 2000, Mr. D'Alessandro raised the speedy trial issue in a pro se motion for writ of error coram nobis, but that was denied by the First Department. People v. D'Alessandro, 272 AD 2d 1002. However, a reframed motion presented by Brian Gardner of Sullivan Gardner convinced the appellate court in 2010 to grant the writ. Mr. Gardner also represents Mr. D'Alessandro in his current malpractice action. Justice Angela M. Mazzarelli wrote for the court in 2010 in People v. D'Alessandro, M-2765A, that Mr. Carro, then of Carro, Velez, Carro & Mitchell, had given a "generally adequate" performance, but the failure to offer the speedy argument was "clear cut" and "dispositive." Mr. D'Alessandro, who has continued to maintain his innocence, was incarcerated for 14 1/2 years until he was freed on parole in 2008. On his release, he was immediately taken into custody by federal immigration authorities for another 18 months. In allowing Mr. D'Alessandro's malpractice suit to go forward, Justice Goodman ruled that by pointing to the First Department writ, Mr. D'Alessandro had adequately pleaded that Mr. Carro's failure to raise the speedy trial issue was the proximate cause of his incarceration. The defendants argued Mr. D'Alessandro did not meet his burden of proving his actual innocence. "The plaintiff cannot prove that the conviction was due solely to his attorney's actions because the plaintiff is factually guilty, despite the fact that his conviction was later vacated due to constitutional and procedural safeguards of speedy trial," they contend in court papers. But, Justice Goodman observed, the conviction had been reversed and the denial of the 1996 appeal had been vacated while the indictment had been dismissed. Defendants also cited an unsigned September 1996 affidavit where Mr. D'Alessandro stated, "If I was told or knew that kidnapping in the first degree carried a mandatory fifteen year sentence…I would have sought a plea disposition in this case, regardless of my guilt or innocence." Justice Goodman said the unsigned and unsworn affidavit could not be viewed as an acknowledgment of guilt. "Defendants rely solely on court documents that are no longer valid or binding, and an unsigned affidavit of dubious value," she said. The judge also rejected the defendants' arguments against non-pecuniary damages in a legal malpractice action arising out of a criminal case. Calling the loss of liberty "the most serious punitive measure in this state," Justice Goodman observed that, had the speedy trial issue been raised on the direct appeal, Mr. D'Alessandro would have spent 10 fewer years in prison. "Some would argue that imprisonment is a fate worse than loss of life," Justice Goodman wrote. "Yet a physician can be assessed non-pecuniary damages in malpractice causing the loss of life. The inability to seek damages for the taking of freedom, even after due process—but in error—strikes this court as paradoxical and an unintended diminution of the effects of loss of liberty." In an interview, Mr. Gardner said he and his client were "very pleased" with the ruling, adding that Justice Goodman had taken the time to consider "harm wrought by wrongful incarceration." Thomas W. Hyland, Jeffrey J. Cunningham and A. Ernest Tonorezos of Wilson Elser Moskowitz Edelman & Dicker represented the defendants. Mr. Hyland did not return a call for comment. Mr. Carro also did not return a call for comment. Justice Goodman retired from the bench on March 2. The case has been assigned to Manhattan Acting Supreme Court Justice Shlomo S. Hagler. Andrew Keshner can be contacted at akeshner@alm.com
The New York Law Journal by Andrew Keshner - March 12, 2012
A man whose kidnapping conviction was vacated only after he had spent almost 15 years in prison can proceed with a $26 million legal malpractice suit against his former appellate attorney, a state judge has ruled. The malpractice action by Giuseppe D'Alessandro against attorney John Carro was filed after the Appellate Division, First Department, issued an unusual writ of error coram nobis faulting Mr. Carro for failing to raise "a clearly meritorious speedy trial argument" on appeal (NYLJ, July 1, 2010). On Feb. 29, Manhattan Supreme Court Justice Emily Jane Goodman rejected a motion to dismiss D'Alessandro v. Carro, 100135-2011, filed by defendants who include Mr. Carro, other attorneys who worked on the case and the firm of Carro, Carro & Mitchell. The defendants sought dismissal on two grounds: failure to state a cause of action and the existence of documentary evidence supporting the contention that their former client was "factually guilty." At the very least they sought a dismissal of non-pecuniary damages. But their arguments did not sway Justice Goodman. "While to a casual reader, rather than a legal scholar, it may be sufficient to rely on the conviction as proof of guilt, but for the denial of the [Criminal Procedure Law] 30.30 motion, it would not have gone to a jury. And, if not for the failure to raise the 30.30 [speedy trial] decision on appeal, the duration of plaintiff's incarceration would have been dramatically reduced," she wrote. In 1989, while working as a restaurant manager, Mr. D'Alessandro allegedly confronted an employee he suspected of stealing $3,000 from the cash register with a firearm. Seeking a confession, Mr. D'Alessandro then allegedly forced the employee into the restaurant basement and held him captive for several hours. Prosecutors initially offered to allow Mr. D'Alessandro to plead to a lesser crime than second-degree kidnapping. Mr. D'Alessandro refused and prosecutors said they warned him that rejecting the deal would lead to a first-degree kidnapping charge, which carried a minimum sentence of 15 years. His trial lawyer moved to enjoin the district attorney from filing the second indictment and about 10 months later moved to have the indictment dismissed on speedy trial grounds. That motion was rejected by now-retired Justice Jerome Hornblass. In 1991, a Manhattan jury convicted Mr. D'Alessandro on charges that included first-degree kidnapping.
To handle his appeal, Mr. D'Alessandro turned to Mr. Carro, who had served 25 years on the First Department bench before retiring. Mr. Carro filed an unsuccessful appeal that raised several issues but did not mention the speedy trial question. People v. D'Alessandro, 230 AD 2d 656. Mr. Carro told the Law Journal in 2010 that the record he received as he prepared the case on appeal in 1996 did not refer to the speedy trial motion or its denial. In 2000, Mr. D'Alessandro raised the speedy trial issue in a pro se motion for writ of error coram nobis, but that was denied by the First Department. People v. D'Alessandro, 272 AD 2d 1002. However, a reframed motion presented by Brian Gardner of Sullivan Gardner convinced the appellate court in 2010 to grant the writ. Mr. Gardner also represents Mr. D'Alessandro in his current malpractice action. Justice Angela M. Mazzarelli wrote for the court in 2010 in People v. D'Alessandro, M-2765A, that Mr. Carro, then of Carro, Velez, Carro & Mitchell, had given a "generally adequate" performance, but the failure to offer the speedy argument was "clear cut" and "dispositive." Mr. D'Alessandro, who has continued to maintain his innocence, was incarcerated for 14 1/2 years until he was freed on parole in 2008. On his release, he was immediately taken into custody by federal immigration authorities for another 18 months. In allowing Mr. D'Alessandro's malpractice suit to go forward, Justice Goodman ruled that by pointing to the First Department writ, Mr. D'Alessandro had adequately pleaded that Mr. Carro's failure to raise the speedy trial issue was the proximate cause of his incarceration. The defendants argued Mr. D'Alessandro did not meet his burden of proving his actual innocence. "The plaintiff cannot prove that the conviction was due solely to his attorney's actions because the plaintiff is factually guilty, despite the fact that his conviction was later vacated due to constitutional and procedural safeguards of speedy trial," they contend in court papers. But, Justice Goodman observed, the conviction had been reversed and the denial of the 1996 appeal had been vacated while the indictment had been dismissed. Defendants also cited an unsigned September 1996 affidavit where Mr. D'Alessandro stated, "If I was told or knew that kidnapping in the first degree carried a mandatory fifteen year sentence…I would have sought a plea disposition in this case, regardless of my guilt or innocence." Justice Goodman said the unsigned and unsworn affidavit could not be viewed as an acknowledgment of guilt. "Defendants rely solely on court documents that are no longer valid or binding, and an unsigned affidavit of dubious value," she said. The judge also rejected the defendants' arguments against non-pecuniary damages in a legal malpractice action arising out of a criminal case. Calling the loss of liberty "the most serious punitive measure in this state," Justice Goodman observed that, had the speedy trial issue been raised on the direct appeal, Mr. D'Alessandro would have spent 10 fewer years in prison. "Some would argue that imprisonment is a fate worse than loss of life," Justice Goodman wrote. "Yet a physician can be assessed non-pecuniary damages in malpractice causing the loss of life. The inability to seek damages for the taking of freedom, even after due process—but in error—strikes this court as paradoxical and an unintended diminution of the effects of loss of liberty." In an interview, Mr. Gardner said he and his client were "very pleased" with the ruling, adding that Justice Goodman had taken the time to consider "harm wrought by wrongful incarceration." Thomas W. Hyland, Jeffrey J. Cunningham and A. Ernest Tonorezos of Wilson Elser Moskowitz Edelman & Dicker represented the defendants. Mr. Hyland did not return a call for comment. Mr. Carro also did not return a call for comment. Justice Goodman retired from the bench on March 2. The case has been assigned to Manhattan Acting Supreme Court Justice Shlomo S. Hagler. Andrew Keshner can be contacted at akeshner@alm.com
Saturday, March 10, 2012
Critics Say New York Law Schools Lie
NY law schools inflate job figures: critics
The New York Post by Christine Parker - March 11, 2012
Deciding on a law school is a numbers game: cost versus reward.
The stick is $150,000+ for studies, but the carrot is a great-paying job. But maybe not, according to recent graduates from the city’s elite law schools, who relied on job placement after getting their sheepskins. Critics of local law schools say Columbia, NYU and Fordham overpromise the economic benefit of a degree, inflating the number of students who find employment after graduation — and how much those jobs pay. “My life will be fairly uncomfortable for the next several decades,” said a third-year Columbia Law School student who borrowed $170,000 to attend and ended up with a job in which he will earn between $50,000 and $60,000. “But when you look at how big a bite $170,000 takes out of you, even over 25 years, it’s really going to sting. . . . Was it worth it? The answer is no,” he said. The student estimated that roughly 35 percent of his class are in a similar position in terms of the salaries they are expecting — a disappointment compared to the glowing portrait of employment opportunity and affluence with which the school had presented them. After an inquiry by The Post, Columbia Law School last week published a spate of new data detailing its employment rate, which dropped from a previously reported National Association for Law Placement’s 98.6 percent level to 96.5 percent. The new data include information such as the number of jobs that require bar admission, the percentage of students reporting salary information, and the fact that all the jobs reported are full time, specifications that schools are now required to report to the American Bar Association, and which have become standard to share online.
But the new numbers quickly raised questions among legal scholars. Paul Campos, a professor at the University of Colorado Law School, pointed to discrepancies between the number of students reported by Columbia to have gotten big-law jobs — employment at a large firm with a salary of $150,000 a year on average — and those counted in a corresponding report by the National Law Journal (NLJ). “According to Columbia, somewhere between 285 and 298 of its 2010 graduates were working for the top NLJ 250 firms. NLJ 250 firms reported only 239 2010 Columbia grads working for such firms. This is not, needless to say, a trivial discrepancy,” he posted on his blog. Campos approximated a similar difference in the case of NYU. Noticeably missing from Columbia’s numbers is a breakdown of school-funded jobs — a red flag, as other schools have been called out for creating short-term jobs to temporarily boost the percentage of students employed for the ABA survey, which counts the employment figure at graduation and nine months later. NYU Law School — which also revised its numbers after The Post contacted it — revealed that 38 students in the class of 2010 counted as employed held temporary positions paid by the school. Students earned $2,000 a month, and the positions lasted between three and six months. Fordham Law School includes a footnote, in fine print, that 14.7 percent of its employment was comprised of school-funded jobs. While Columbia acknowledged that it offers fellowships to students seeking employment, the school could not say how many jobs it had funded for the class of 2010, or whether they were comparable to the prestigious one- and two-year opportunities advertised on its website. One student claimed the school offers six-month fellowships to unemployed students at the end of their third year and called the jobs “a last- resort option.” On campus, the goal, and expectation, for most students, is to get a big-law job earning $150,000 out of the gate. “To want a big-law job and not get one is a pretty big deal,” said a first-year Columbia Law student, who noted that many students turn down scholarships from lower-ranked schools in order to attend. Some students reported having jobs paying $160,000 lined up. But legal-staffing firms reported placing recent grads of both NYU and Columbia in paralegal and support staff positions for as little as $35,000. “I’ve never seen more attorneys applying for non-attorney jobs,” said Tony Filson, president of Filcro Personnel, a staffing firm in New York. “They’re all from top schools,” said Maritza Murphy, a legal account manager at DeltaForce legal staffing. “Columbia, NYU, Fordham. A lot of small law firms are hiring them in paralegal jobs because they can get them at a lower cost.” Brian Leiter, a professor at the University of Chicago Law School, noted that the number of big-law jobs available has decreased significantly. “The [focus on the] highest paid [law school graduates] make it seem like you’ll earn $160,000. There are about 30 to 40 percent fewer of those jobs than there were a few years ago,” he said. Columbia’s current listing of second-year summer associate positions, which remain at a low 76.7 percent for the class of 2012, after falling from 91.3 percent for the class of 2010, suggests that those jobs are not making a strong comeback. With average student debts of $127,000 and $125,000, Columbia and NYU fall into the top 22 schools in student indebtedness, according to Brian Tamanaha, author of the new book “Failing Law Schools.” “I feel ashamed for my family because they expected big things for me, and now I might end up living with them after graduation, which is very disheartening,” said a Columbia third-year student struggling with no job offers. cparker@nypost.com
The New York Post by Christine Parker - March 11, 2012
Deciding on a law school is a numbers game: cost versus reward.
The stick is $150,000+ for studies, but the carrot is a great-paying job. But maybe not, according to recent graduates from the city’s elite law schools, who relied on job placement after getting their sheepskins. Critics of local law schools say Columbia, NYU and Fordham overpromise the economic benefit of a degree, inflating the number of students who find employment after graduation — and how much those jobs pay. “My life will be fairly uncomfortable for the next several decades,” said a third-year Columbia Law School student who borrowed $170,000 to attend and ended up with a job in which he will earn between $50,000 and $60,000. “But when you look at how big a bite $170,000 takes out of you, even over 25 years, it’s really going to sting. . . . Was it worth it? The answer is no,” he said. The student estimated that roughly 35 percent of his class are in a similar position in terms of the salaries they are expecting — a disappointment compared to the glowing portrait of employment opportunity and affluence with which the school had presented them. After an inquiry by The Post, Columbia Law School last week published a spate of new data detailing its employment rate, which dropped from a previously reported National Association for Law Placement’s 98.6 percent level to 96.5 percent. The new data include information such as the number of jobs that require bar admission, the percentage of students reporting salary information, and the fact that all the jobs reported are full time, specifications that schools are now required to report to the American Bar Association, and which have become standard to share online.
But the new numbers quickly raised questions among legal scholars. Paul Campos, a professor at the University of Colorado Law School, pointed to discrepancies between the number of students reported by Columbia to have gotten big-law jobs — employment at a large firm with a salary of $150,000 a year on average — and those counted in a corresponding report by the National Law Journal (NLJ). “According to Columbia, somewhere between 285 and 298 of its 2010 graduates were working for the top NLJ 250 firms. NLJ 250 firms reported only 239 2010 Columbia grads working for such firms. This is not, needless to say, a trivial discrepancy,” he posted on his blog. Campos approximated a similar difference in the case of NYU. Noticeably missing from Columbia’s numbers is a breakdown of school-funded jobs — a red flag, as other schools have been called out for creating short-term jobs to temporarily boost the percentage of students employed for the ABA survey, which counts the employment figure at graduation and nine months later. NYU Law School — which also revised its numbers after The Post contacted it — revealed that 38 students in the class of 2010 counted as employed held temporary positions paid by the school. Students earned $2,000 a month, and the positions lasted between three and six months. Fordham Law School includes a footnote, in fine print, that 14.7 percent of its employment was comprised of school-funded jobs. While Columbia acknowledged that it offers fellowships to students seeking employment, the school could not say how many jobs it had funded for the class of 2010, or whether they were comparable to the prestigious one- and two-year opportunities advertised on its website. One student claimed the school offers six-month fellowships to unemployed students at the end of their third year and called the jobs “a last- resort option.” On campus, the goal, and expectation, for most students, is to get a big-law job earning $150,000 out of the gate. “To want a big-law job and not get one is a pretty big deal,” said a first-year Columbia Law student, who noted that many students turn down scholarships from lower-ranked schools in order to attend. Some students reported having jobs paying $160,000 lined up. But legal-staffing firms reported placing recent grads of both NYU and Columbia in paralegal and support staff positions for as little as $35,000. “I’ve never seen more attorneys applying for non-attorney jobs,” said Tony Filson, president of Filcro Personnel, a staffing firm in New York. “They’re all from top schools,” said Maritza Murphy, a legal account manager at DeltaForce legal staffing. “Columbia, NYU, Fordham. A lot of small law firms are hiring them in paralegal jobs because they can get them at a lower cost.” Brian Leiter, a professor at the University of Chicago Law School, noted that the number of big-law jobs available has decreased significantly. “The [focus on the] highest paid [law school graduates] make it seem like you’ll earn $160,000. There are about 30 to 40 percent fewer of those jobs than there were a few years ago,” he said. Columbia’s current listing of second-year summer associate positions, which remain at a low 76.7 percent for the class of 2012, after falling from 91.3 percent for the class of 2010, suggests that those jobs are not making a strong comeback. With average student debts of $127,000 and $125,000, Columbia and NYU fall into the top 22 schools in student indebtedness, according to Brian Tamanaha, author of the new book “Failing Law Schools.” “I feel ashamed for my family because they expected big things for me, and now I might end up living with them after graduation, which is very disheartening,” said a Columbia third-year student struggling with no job offers. cparker@nypost.com
Wednesday, March 7, 2012
Sealed Files, Again
Sealed Files, Again
The Connecticut Law Tribune Thomas B. Scheffey - March 5, 2012
No explanation offered for secrecy in civil rape case
A civil case was filed in New London against seven Madison middle-school pupils, five of whom are accused of sexually touching a 13-year old girl at a 2009 New Year’s Eve house party, while a sixth boy took photographs. The case was filed secretly in New London without public explanation of why the entire file was sealed. For a court system that has put a recent emphasis on transparency after years of systemically sealing sensitive cases, the Madison lawsuit is raising questions about who deserves court secrecy, and when that decision should be explained to the public. “In the old days, files were sealed fairly liberally, for not great reasons,” acknowledged David S. Gage, the new chief clerk in the New London Judicial District. “That does not happen anymore at all.” Gage said at least one scheduled hearing on the status of the case was postponed. Another hearing has been scheduled for March 19. Last December, plaintiff “Jane Doe” and her daughter, Mary, represented by New London attorney Matthew Auger, were, with no court hearing, granted pseudonyms. They also filed pre-hearing motions to close the courtroom and seal the file for proceedings against seven named Madison boys and their parents. The boys were all eighth-grade students at Madison’s Walter C. Polson Middle School, according to a parallel federal action that accuses the Madison School District of requiring the girl to attend classes with some of her alleged rapists and the photographer, until they were all arrested a month later and pled guilty in juvenile court. In the federal case, Halloran & Sage lawyer William S. Wilson II is representing the plaintiffs, and Catherine S. Neitzel, of Ryan, Ryan & Deluca is representing Madison’s school board. On Dec. 9, New London Superior Court Judge James J. Devine, the judicial district’s presiding civil judge, secretively entered an order sealing the entire state file “until further order of the court.” On Feb. 6, New London Superior Court judge Robert A. Martin declined to order the courtroom closed during a brief hearing because no members of the public or press were present. Judge Martin also authorized the plaintiffs to continue to use pseudonyms, which lawyers for the defendants did not oppose. New Haven criminal defense lawyer Jonathan J. Einhorn, who represents the first-named defendant and his parents, said he intends to request pseudonyms for his clients as well. “The boys are juveniles,” he said. While children’s names were kept secret, under state statute, in the juvenile court proceedings, there is no such policy for children in civil courts. Doe and her parents are claiming that the defendants are individually liable and their parents are liable for negligent supervision. Besides Einhorn, the defendants are represented by attorneys Charles Reid, of Loughlin FitzGerald in Wallingford, and Miles Esty, of Esty & Buckmuir in Hamden.
Order Temporary?
Under Practice Book rules adopted in 2003, in the wake of a secret file scandal that brought discredit to the Judicial Branch, “a motion to seal the contents of an entire court file shall be placed on the short calendar to be held not less than fifteen days following the filing of the motion, unless the judicial authority otherwise directs….” Practice Book Section 11-20A states that the sealing order may be issued “only upon a finding that there is not available a more narrowly tailored method of protecting” the person’s interest in confidentiality, such as pseudonyms, redacting the file, or sealing portions of the documents. In a Feb. 27 hearing in New London, Judge Martin evidently did not rule on the initial motion to seal the court file. He did order the case transferred to New Haven where, he said, “this case rightly belongs.” Madison is a shoreline town within the New Haven judicial district. “I still maintain that the original sealing order was only temporary, and that Judge Martin refused to extend it [Feb. 27],” said Einhorn. But court personnel present in the courtroom, court monitor Amy Cowan and temporary assistant clerk Lisa Reveruzzi, said Judge Martin did not appear to make any order on whether the file sealing was continued. A transcript of what was said would be available for $6.35 per page, on a rush basis, but not before Law Tribune press time Friday afternoon. However, on Feb. 29, New Haven Superior Court Judge Jonathan E. Silbert treated the case as entirely sealed. He posted a new order on the Judicial Branch web site page reserved for notices of motions to seal files or close a courtroom. “The contents of this file has been sealed,” states the page listing the docket number, the plaintiffs (Jane and Mary Doe), and 21 named defendants — seven boys and their 14 parents. The case’s initial docket entry, a Motion to Seal the Court File, “is scheduled for a hearing before the undersigned on Monday, March 19, 2012 at 9:30 a.m. in courtroom 4-D,” Silbert ordered. Plaintiffs attorney Auger did not return a call for comment from the Law Tribune, and declined to speak to reporters at the New London hearing. Auger’s silence didn’t prevent his anonymous clients from making points publicly. In the reader response section after a New Haven Register story, “Madison Rape Case Shocker,” a writer claiming to be the female victim discussed how angry she was about the alleged assault and the associated pictures that were shared at school. Reporter Amanda Pinto added that, “A source close to the girl’s family confirmed last week that the girl wrote the statement.”
Continued Struggle
Ever since the Law Tribune first reported the existence of a multi-level “secret file” system in late 2002, Connecticut’s courts have wrestled publicly and privately with how to appear open and accountable while providing various forms of secrecy when that is deemed to override the public’s interest in open courts. In a series of 2003 court rule reforms, Connecticut became a national pioneer by requiring the listing, on one web site page, of all pending motions to seal files or close courtrooms. Sometimes it works as intended. But due to last-minute rescheduling, these posted dates for hearings on motions to seal are frequently unreliable. In the Doe v. Maynard, et al. case both judges Martin and Silbert specified that the order to seal shall not be continued without a public hearing in open court. And yet the files from the case remain unavailable to the public, with no statement from any judge explaining why the matter is entirely sealed. Judicial Branch spokeswoman Rhonda Stearley Hebert said last week that Judicial Branch officials don’t comment on pending lawsuits or judge’s rulings. The position of New London chief clerk had been vacant until Gage, formerly a Norwich family court clerk, was appointed Jan. 27. Gage said there had been a hearing on the sealing order scheduled for earlier in January but it was administratively postponed, or in court parlance, “marked off” the docket. “The matter was marked off,” Gage said. “When I became chief clerk, I saw the matter had been marked off. I set it down for a hearing and had [the Feb. 27 hearing date] properly published under the rules, and sent notice that the matter could not be continued or marked off.” But after the hearing, the sealed files issue was just as murky as ever. First Amendment lawyer Daniel J. Klau said the media and public have 72 hours after a sealing order is issued to challenge it in the state Appellate Court. But Klau said that since Judge Devine’s initial order was made “ex parte,” or without any public hearing, that 72-hour filing requirement might not be an obstacle to appealing the secretive order as improper. A supervisor for the Associated Press, one of the news organizations that have reported on the sealed files case, declined to comment on whether the AP is contemplating legal action. However, Klau warned, an immediate challenge to the sealing order “might be tilting at windmills….Basically, it is going to become moot based on what Judge Silbert does” at the March 19 hearing. A longtime clerk, Gage said he had a lot of experience in sealing files, and that many of the sealed files were in family court. “When the judicial department made it a policy that they were not going to just willy-nilly seal files, that we were going to follow this Practice Book section very strictly, family is where it started, typically.” Before the 2003 reforms, he noted, paternity cases were automatically sealed, which is no longer the case. “The judicial department went through an arduous process of reviewing hundreds and hundreds of files, and reopened a good many sealed files.” As a policy, he said, the Judicial Branch favors “open and fair access to the public and the press — with certain exceptions.”
The Connecticut Law Tribune Thomas B. Scheffey - March 5, 2012
No explanation offered for secrecy in civil rape case
A civil case was filed in New London against seven Madison middle-school pupils, five of whom are accused of sexually touching a 13-year old girl at a 2009 New Year’s Eve house party, while a sixth boy took photographs. The case was filed secretly in New London without public explanation of why the entire file was sealed. For a court system that has put a recent emphasis on transparency after years of systemically sealing sensitive cases, the Madison lawsuit is raising questions about who deserves court secrecy, and when that decision should be explained to the public. “In the old days, files were sealed fairly liberally, for not great reasons,” acknowledged David S. Gage, the new chief clerk in the New London Judicial District. “That does not happen anymore at all.” Gage said at least one scheduled hearing on the status of the case was postponed. Another hearing has been scheduled for March 19. Last December, plaintiff “Jane Doe” and her daughter, Mary, represented by New London attorney Matthew Auger, were, with no court hearing, granted pseudonyms. They also filed pre-hearing motions to close the courtroom and seal the file for proceedings against seven named Madison boys and their parents. The boys were all eighth-grade students at Madison’s Walter C. Polson Middle School, according to a parallel federal action that accuses the Madison School District of requiring the girl to attend classes with some of her alleged rapists and the photographer, until they were all arrested a month later and pled guilty in juvenile court. In the federal case, Halloran & Sage lawyer William S. Wilson II is representing the plaintiffs, and Catherine S. Neitzel, of Ryan, Ryan & Deluca is representing Madison’s school board. On Dec. 9, New London Superior Court Judge James J. Devine, the judicial district’s presiding civil judge, secretively entered an order sealing the entire state file “until further order of the court.” On Feb. 6, New London Superior Court judge Robert A. Martin declined to order the courtroom closed during a brief hearing because no members of the public or press were present. Judge Martin also authorized the plaintiffs to continue to use pseudonyms, which lawyers for the defendants did not oppose. New Haven criminal defense lawyer Jonathan J. Einhorn, who represents the first-named defendant and his parents, said he intends to request pseudonyms for his clients as well. “The boys are juveniles,” he said. While children’s names were kept secret, under state statute, in the juvenile court proceedings, there is no such policy for children in civil courts. Doe and her parents are claiming that the defendants are individually liable and their parents are liable for negligent supervision. Besides Einhorn, the defendants are represented by attorneys Charles Reid, of Loughlin FitzGerald in Wallingford, and Miles Esty, of Esty & Buckmuir in Hamden.
Order Temporary?
Under Practice Book rules adopted in 2003, in the wake of a secret file scandal that brought discredit to the Judicial Branch, “a motion to seal the contents of an entire court file shall be placed on the short calendar to be held not less than fifteen days following the filing of the motion, unless the judicial authority otherwise directs….” Practice Book Section 11-20A states that the sealing order may be issued “only upon a finding that there is not available a more narrowly tailored method of protecting” the person’s interest in confidentiality, such as pseudonyms, redacting the file, or sealing portions of the documents. In a Feb. 27 hearing in New London, Judge Martin evidently did not rule on the initial motion to seal the court file. He did order the case transferred to New Haven where, he said, “this case rightly belongs.” Madison is a shoreline town within the New Haven judicial district. “I still maintain that the original sealing order was only temporary, and that Judge Martin refused to extend it [Feb. 27],” said Einhorn. But court personnel present in the courtroom, court monitor Amy Cowan and temporary assistant clerk Lisa Reveruzzi, said Judge Martin did not appear to make any order on whether the file sealing was continued. A transcript of what was said would be available for $6.35 per page, on a rush basis, but not before Law Tribune press time Friday afternoon. However, on Feb. 29, New Haven Superior Court Judge Jonathan E. Silbert treated the case as entirely sealed. He posted a new order on the Judicial Branch web site page reserved for notices of motions to seal files or close a courtroom. “The contents of this file has been sealed,” states the page listing the docket number, the plaintiffs (Jane and Mary Doe), and 21 named defendants — seven boys and their 14 parents. The case’s initial docket entry, a Motion to Seal the Court File, “is scheduled for a hearing before the undersigned on Monday, March 19, 2012 at 9:30 a.m. in courtroom 4-D,” Silbert ordered. Plaintiffs attorney Auger did not return a call for comment from the Law Tribune, and declined to speak to reporters at the New London hearing. Auger’s silence didn’t prevent his anonymous clients from making points publicly. In the reader response section after a New Haven Register story, “Madison Rape Case Shocker,” a writer claiming to be the female victim discussed how angry she was about the alleged assault and the associated pictures that were shared at school. Reporter Amanda Pinto added that, “A source close to the girl’s family confirmed last week that the girl wrote the statement.”
Continued Struggle
Ever since the Law Tribune first reported the existence of a multi-level “secret file” system in late 2002, Connecticut’s courts have wrestled publicly and privately with how to appear open and accountable while providing various forms of secrecy when that is deemed to override the public’s interest in open courts. In a series of 2003 court rule reforms, Connecticut became a national pioneer by requiring the listing, on one web site page, of all pending motions to seal files or close courtrooms. Sometimes it works as intended. But due to last-minute rescheduling, these posted dates for hearings on motions to seal are frequently unreliable. In the Doe v. Maynard, et al. case both judges Martin and Silbert specified that the order to seal shall not be continued without a public hearing in open court. And yet the files from the case remain unavailable to the public, with no statement from any judge explaining why the matter is entirely sealed. Judicial Branch spokeswoman Rhonda Stearley Hebert said last week that Judicial Branch officials don’t comment on pending lawsuits or judge’s rulings. The position of New London chief clerk had been vacant until Gage, formerly a Norwich family court clerk, was appointed Jan. 27. Gage said there had been a hearing on the sealing order scheduled for earlier in January but it was administratively postponed, or in court parlance, “marked off” the docket. “The matter was marked off,” Gage said. “When I became chief clerk, I saw the matter had been marked off. I set it down for a hearing and had [the Feb. 27 hearing date] properly published under the rules, and sent notice that the matter could not be continued or marked off.” But after the hearing, the sealed files issue was just as murky as ever. First Amendment lawyer Daniel J. Klau said the media and public have 72 hours after a sealing order is issued to challenge it in the state Appellate Court. But Klau said that since Judge Devine’s initial order was made “ex parte,” or without any public hearing, that 72-hour filing requirement might not be an obstacle to appealing the secretive order as improper. A supervisor for the Associated Press, one of the news organizations that have reported on the sealed files case, declined to comment on whether the AP is contemplating legal action. However, Klau warned, an immediate challenge to the sealing order “might be tilting at windmills….Basically, it is going to become moot based on what Judge Silbert does” at the March 19 hearing. A longtime clerk, Gage said he had a lot of experience in sealing files, and that many of the sealed files were in family court. “When the judicial department made it a policy that they were not going to just willy-nilly seal files, that we were going to follow this Practice Book section very strictly, family is where it started, typically.” Before the 2003 reforms, he noted, paternity cases were automatically sealed, which is no longer the case. “The judicial department went through an arduous process of reviewing hundreds and hundreds of files, and reopened a good many sealed files.” As a policy, he said, the Judicial Branch favors “open and fair access to the public and the press — with certain exceptions.”
Ex-Bridgeport Mayor May Get Law License Back
Ex-Bridgeport Mayor May Get Law License Back
The Associated Press - March 6, 2012
Former Bridgeport Mayor Joseph Ganim served nearly seven years in prison for corruption and lost his law license, but he now may be on track to becoming a lawyer again. The Connecticut Post reports that Ganim's probation officer says the federal judge who sent Ganim to prison, Janet Arterton, is backing Ganim's bid to get his law license back. Probation Officer Christopher Rogers revealed the judge's support of Ganim in testimony to the Statewide Grievance Committee, a lawyer discipline panel that held its final hearing on Ganim's request to get his law license back Monday. The Judicial Branch's chief disciplinary counsel has been the only person to oppose Ganim's bid. The committee will be making a recommendation a three-judge panel that will make a final decision on Ganim's license.
The Associated Press - March 6, 2012
Former Bridgeport Mayor Joseph Ganim served nearly seven years in prison for corruption and lost his law license, but he now may be on track to becoming a lawyer again. The Connecticut Post reports that Ganim's probation officer says the federal judge who sent Ganim to prison, Janet Arterton, is backing Ganim's bid to get his law license back. Probation Officer Christopher Rogers revealed the judge's support of Ganim in testimony to the Statewide Grievance Committee, a lawyer discipline panel that held its final hearing on Ganim's request to get his law license back Monday. The Judicial Branch's chief disciplinary counsel has been the only person to oppose Ganim's bid. The committee will be making a recommendation a three-judge panel that will make a final decision on Ganim's license.
Tuesday, March 6, 2012
Wide Sentencing Disparity Found Among U.S. Judges
Wide Sentencing Disparity Found Among U.S. Judges
The New York Times by Mosi Secret - March 5, 2012
A new analysis of hundreds of thousands of cases in federal courts has found vast disparities in the prison sentences handed down by judges presiding over similar cases, raising questions about the extent to which federal sentences are influenced by the particular judges rather than by the specific circumstances of the cases. The trove of data subjects individual district court judges to a level of scrutiny unprecedented in the history of the judiciary. In the Eastern District of New York, for example, the 28 judges in the study delivered a median sentence of 24 months for drug cases in the past five years. But there were disparities: Judges Jack B. Weinstein and Kiyo A. Matsumoto gave median drug sentences of 12 months, while the median drug sentence for Judge Arthur D. Spatt was 64 months. The Eastern District ranked 17th among more than 80 districts in drug sentencing disparities. Until the release of the data on Monday, it was difficult to review a judge’s sentencing history over time, because public court records in criminal cases could not be searched by the names of judges, only by the names of criminal defendants or lawyers. In addition, the United States Sentencing Commission excludes the name of the judge from its sentencing data, in part, experts said, because of the judiciary’s concern that such data could be used to single out judges, who were freed from restrictive sentencing guidelines in 2005. The new data were obtained under the Freedom of Information Act and analyzed by the Transactional Records Access Clearinghouse, or TRAC, an organization based at Syracuse University that gathers data on the federal government. The study covered each sentence imposed by federal district court judges in the past five years, for drug, white-collar and other kinds of crimes. Judges who had not sentenced at least 50 defendants were excluded, resulting in a pool of 885 judges who cumulatively had sentenced more than 370,000 defendants.
The Southern District of New York ranked eighth in white-collar sentencing disparity. Some judges, like John F. Keenan and Sidney H. Stein, sentenced most of their white-collar defendants to no time at all, while the typical sentence of another judge, Lewis A. Kaplan, was almost 23 months. The report said that in the Northern District of Texas, the median prison sentence for convicted drug defendants from some judges was as low as 60 months. A typical sentence for another judge was nearly three times as long, at 160 months. Former federal judges and sentencing experts pointed to what they said were the limitations in analysis of the data and cautioned against quick conclusions. “This kind of data doesn’t show very much,” said Nancy Gertner, a former judge in Federal District Court in Boston who favors releasing data about judges. “It doesn’t begin to address caseload or prosecutorial decisions. It doesn’t begin to address disparity.” Prosecutors often recommend lower sentences for defendants who cooperated with the government to build cases against others. Some sentences might be a result of plea agreements. The TRAC study did not separate cooperation agreements and plea deals before making calculations on disparities, but the database and analysis tool does include case-by-case details showing which cases fall into those categories. Without a more detailed analysis of data, the judges and sentencing experts who were interviewed said they worried about the possibility of drawing judges into a heated debate driven not by policy decisions but by posturing of politicians who want to appear tough on crime. “The unduly harsh judge escapes concern while the lenient judge gets hit,” said Douglas A. Berman, a professor at the Moritz College of Law at Ohio University, who closely follows sentencing law and policy. Judge Gertner said, “The notion of the data surfacing in a rational, thoughtful world would not be a bad idea.” But she cautioned that she had “concerns that it will be used as part of this vitriolic political battle.” The TRAC report seemed to anticipate the political stakes and cautioned against using the data to remove judicial discretion. Congress sets penalties for federal crimes. For much of the history of the courts, federal judges, who are appointed by the president and confirmed to life terms by the Senate, were free to hand down sentences as they saw fit. Congress passed the Sentencing Reform Act in 1984, spurred by evidence of sentencing disparities. The law established the federal sentencing commission, which wrote mandatory guidelines for judges to follow as they punished convicts, with similar sentences for offenders having comparable criminal histories who are convicted of the same crimes. For example, a defendant convicted of conspiracy to possess and distribute narcotics could face a sentence of 108 to 135 months under the guidelines. The range could be raised if the defendant played a leadership role in the crime or lowered if the defendant had a history of drug abuse or was a minor player in the crime. But after a challenge to the constitutionality of requiring sentencing judges to consider facts that were not weighed by a jury, the Supreme Court untethered judges from the guidelines with its decision in the case of United States v. Booker in 2005. The sentencing guidelines are now advisory, not mandatory. Judges again gained broad discretion, though in practice many still sentence defendants within the guideline ranges. Still, questions again surfaced about whether judges with such latitude would treat convicted defendants fairly. As recently as last October, a House subcommittee conducted a hearing titled “Uncertain Justice: The Status of Federal Sentencing and the U.S. Sentencing Commission Six Years after U.S. v. Booker.” In the past, such hearings stoked controversy. In a House Judiciary subcommittee meeting in 2002, Judge James M. Rosenbaum, then the chief District Court judge in Minnesota and a Ronald Reagan appointee, testified in support of legislation to decrease penalties for certain drug offenses. Republican members of the committee made an inquiry into his sentencing history after the hearing. Congress then passed legislation that limited judicial discretion and authorized the collection of sentencing data on individual judges. The confrontation grew so heated that Chief Justice William H. Rehnquist, a conservative, came to the defense of the judiciary in a public statement. Justice Rehnquist warned that collecting data on judges’ sentencing practices “could amount to an unwarranted and ill-considered effort to intimidate individual judges.” The TRAC data, which will be updated monthly, and a tool to analyze the data are available on the TRAC Web site for a fee. “It’s profoundly valuable that TRAC will assemble this data,” Mr. Berman said. “But now it’s profoundly important that serious researchers get to the data.”
The New York Times by Mosi Secret - March 5, 2012
A new analysis of hundreds of thousands of cases in federal courts has found vast disparities in the prison sentences handed down by judges presiding over similar cases, raising questions about the extent to which federal sentences are influenced by the particular judges rather than by the specific circumstances of the cases. The trove of data subjects individual district court judges to a level of scrutiny unprecedented in the history of the judiciary. In the Eastern District of New York, for example, the 28 judges in the study delivered a median sentence of 24 months for drug cases in the past five years. But there were disparities: Judges Jack B. Weinstein and Kiyo A. Matsumoto gave median drug sentences of 12 months, while the median drug sentence for Judge Arthur D. Spatt was 64 months. The Eastern District ranked 17th among more than 80 districts in drug sentencing disparities. Until the release of the data on Monday, it was difficult to review a judge’s sentencing history over time, because public court records in criminal cases could not be searched by the names of judges, only by the names of criminal defendants or lawyers. In addition, the United States Sentencing Commission excludes the name of the judge from its sentencing data, in part, experts said, because of the judiciary’s concern that such data could be used to single out judges, who were freed from restrictive sentencing guidelines in 2005. The new data were obtained under the Freedom of Information Act and analyzed by the Transactional Records Access Clearinghouse, or TRAC, an organization based at Syracuse University that gathers data on the federal government. The study covered each sentence imposed by federal district court judges in the past five years, for drug, white-collar and other kinds of crimes. Judges who had not sentenced at least 50 defendants were excluded, resulting in a pool of 885 judges who cumulatively had sentenced more than 370,000 defendants.
The Southern District of New York ranked eighth in white-collar sentencing disparity. Some judges, like John F. Keenan and Sidney H. Stein, sentenced most of their white-collar defendants to no time at all, while the typical sentence of another judge, Lewis A. Kaplan, was almost 23 months. The report said that in the Northern District of Texas, the median prison sentence for convicted drug defendants from some judges was as low as 60 months. A typical sentence for another judge was nearly three times as long, at 160 months. Former federal judges and sentencing experts pointed to what they said were the limitations in analysis of the data and cautioned against quick conclusions. “This kind of data doesn’t show very much,” said Nancy Gertner, a former judge in Federal District Court in Boston who favors releasing data about judges. “It doesn’t begin to address caseload or prosecutorial decisions. It doesn’t begin to address disparity.” Prosecutors often recommend lower sentences for defendants who cooperated with the government to build cases against others. Some sentences might be a result of plea agreements. The TRAC study did not separate cooperation agreements and plea deals before making calculations on disparities, but the database and analysis tool does include case-by-case details showing which cases fall into those categories. Without a more detailed analysis of data, the judges and sentencing experts who were interviewed said they worried about the possibility of drawing judges into a heated debate driven not by policy decisions but by posturing of politicians who want to appear tough on crime. “The unduly harsh judge escapes concern while the lenient judge gets hit,” said Douglas A. Berman, a professor at the Moritz College of Law at Ohio University, who closely follows sentencing law and policy. Judge Gertner said, “The notion of the data surfacing in a rational, thoughtful world would not be a bad idea.” But she cautioned that she had “concerns that it will be used as part of this vitriolic political battle.” The TRAC report seemed to anticipate the political stakes and cautioned against using the data to remove judicial discretion. Congress sets penalties for federal crimes. For much of the history of the courts, federal judges, who are appointed by the president and confirmed to life terms by the Senate, were free to hand down sentences as they saw fit. Congress passed the Sentencing Reform Act in 1984, spurred by evidence of sentencing disparities. The law established the federal sentencing commission, which wrote mandatory guidelines for judges to follow as they punished convicts, with similar sentences for offenders having comparable criminal histories who are convicted of the same crimes. For example, a defendant convicted of conspiracy to possess and distribute narcotics could face a sentence of 108 to 135 months under the guidelines. The range could be raised if the defendant played a leadership role in the crime or lowered if the defendant had a history of drug abuse or was a minor player in the crime. But after a challenge to the constitutionality of requiring sentencing judges to consider facts that were not weighed by a jury, the Supreme Court untethered judges from the guidelines with its decision in the case of United States v. Booker in 2005. The sentencing guidelines are now advisory, not mandatory. Judges again gained broad discretion, though in practice many still sentence defendants within the guideline ranges. Still, questions again surfaced about whether judges with such latitude would treat convicted defendants fairly. As recently as last October, a House subcommittee conducted a hearing titled “Uncertain Justice: The Status of Federal Sentencing and the U.S. Sentencing Commission Six Years after U.S. v. Booker.” In the past, such hearings stoked controversy. In a House Judiciary subcommittee meeting in 2002, Judge James M. Rosenbaum, then the chief District Court judge in Minnesota and a Ronald Reagan appointee, testified in support of legislation to decrease penalties for certain drug offenses. Republican members of the committee made an inquiry into his sentencing history after the hearing. Congress then passed legislation that limited judicial discretion and authorized the collection of sentencing data on individual judges. The confrontation grew so heated that Chief Justice William H. Rehnquist, a conservative, came to the defense of the judiciary in a public statement. Justice Rehnquist warned that collecting data on judges’ sentencing practices “could amount to an unwarranted and ill-considered effort to intimidate individual judges.” The TRAC data, which will be updated monthly, and a tool to analyze the data are available on the TRAC Web site for a fee. “It’s profoundly valuable that TRAC will assemble this data,” Mr. Berman said. “But now it’s profoundly important that serious researchers get to the data.”
Charges Weighed for Lawyer Who Revealed Witness’s Name
Charges Weighed for Lawyer Who Revealed Witness’s Name
The New York Times by Colin Moynihan and Benjamin Weiser - March 5, 2012
A federal district judge in Brooklyn has asked the United States attorney’s office there to review whether to pursue criminal contempt charges against a lawyer who revealed in court papers in 2010 the identity of a businessman who had pleaded guilty in an organized-crime case and cooperated with the government. After asking whether federal prosecutors would bring charges against the lawyer, the judge, Brian M. Cogan, said in a hearing on Monday, “There is a possibility that if the government declines I may appoint someone” to investigate, apparently referring to a private lawyer. The judge said last week in a hearing that he would refer the case for prosecution and repeated that on Monday. Because of the nature of the case, the court has referred to the businessman only as John Doe. The lawyer, Frederick M. Oberlander, has been described in court records as Richard Roe. Judge Cogan said last week that he had not reached a conclusion about whether criminal contempt had occurred. But he said he could not think of anything “more important than letting actual and potential witnesses know that the government will protect them.” On Monday, a federal prosecutor told Judge Cogan that his office had not yet reached a decision. An office spokesman would not comment after the hearing, nor would Mr. Oberlander or his lawyer, Richard E. Lerner. Michael P. Beys, a lawyer for the businessman, also declined to comment. Judge Cogan had been appointed to oversee secrecy orders in the case after Mr. Oberlander disclosed, in a lawsuit filed in Manhattan in 2010, John Doe’s actual name and his role as a cooperating witness. In the lawsuit, which was quickly sealed by a judge, Mr. Oberlander accused the businessman, who was associated with an investment firm, of stealing millions of dollars from investors. Mr. Oberlander also included documentation of the businessman’s earlier guilty plea and his cooperation agreement with the authorities. It was not possible to learn specifically what had prompted Judge Cogan to hold hearings on whether Mr. Oberlander should be cited for contempt. But in court last week, the judge described the lawyers for John Doe as “movants,” suggesting that they had sought the proceeding. Judge Cogan also said he had assumed that John Doe’s lawyers were “consulting with the government” as well. The judge also expressed concern last week that Mr. Oberlander and Mr. Lerner might be trying to “undermine” secrecy orders in the case. The hearings followed an article in The New York Times last month that detailed the unusual legal dispute, in which court records and proceedings in Brooklyn and Manhattan and in a federal appeals court have been placed under seal or otherwise removed from the public record. The Times has not identified John Doe because of safety concerns raised by some parties in the matter. Mr. Oberlander was quoted in the article as saying that the secrecy shrouding the John Doe case had kept investors from learning about the businessman’s criminal record, which Mr. Oberlander contended should have been disclosed. But I. Leo Glasser, the judge who had presided over the case that resulted in a guilty plea from John Doe, found that Mr. Oberlander had “knowingly and intentionally flouted” a court order by “unilaterally deciding” to disclose information from the businessman’s sealed case, an appellate order said.
The New York Times by Colin Moynihan and Benjamin Weiser - March 5, 2012
A federal district judge in Brooklyn has asked the United States attorney’s office there to review whether to pursue criminal contempt charges against a lawyer who revealed in court papers in 2010 the identity of a businessman who had pleaded guilty in an organized-crime case and cooperated with the government. After asking whether federal prosecutors would bring charges against the lawyer, the judge, Brian M. Cogan, said in a hearing on Monday, “There is a possibility that if the government declines I may appoint someone” to investigate, apparently referring to a private lawyer. The judge said last week in a hearing that he would refer the case for prosecution and repeated that on Monday. Because of the nature of the case, the court has referred to the businessman only as John Doe. The lawyer, Frederick M. Oberlander, has been described in court records as Richard Roe. Judge Cogan said last week that he had not reached a conclusion about whether criminal contempt had occurred. But he said he could not think of anything “more important than letting actual and potential witnesses know that the government will protect them.” On Monday, a federal prosecutor told Judge Cogan that his office had not yet reached a decision. An office spokesman would not comment after the hearing, nor would Mr. Oberlander or his lawyer, Richard E. Lerner. Michael P. Beys, a lawyer for the businessman, also declined to comment. Judge Cogan had been appointed to oversee secrecy orders in the case after Mr. Oberlander disclosed, in a lawsuit filed in Manhattan in 2010, John Doe’s actual name and his role as a cooperating witness. In the lawsuit, which was quickly sealed by a judge, Mr. Oberlander accused the businessman, who was associated with an investment firm, of stealing millions of dollars from investors. Mr. Oberlander also included documentation of the businessman’s earlier guilty plea and his cooperation agreement with the authorities. It was not possible to learn specifically what had prompted Judge Cogan to hold hearings on whether Mr. Oberlander should be cited for contempt. But in court last week, the judge described the lawyers for John Doe as “movants,” suggesting that they had sought the proceeding. Judge Cogan also said he had assumed that John Doe’s lawyers were “consulting with the government” as well. The judge also expressed concern last week that Mr. Oberlander and Mr. Lerner might be trying to “undermine” secrecy orders in the case. The hearings followed an article in The New York Times last month that detailed the unusual legal dispute, in which court records and proceedings in Brooklyn and Manhattan and in a federal appeals court have been placed under seal or otherwise removed from the public record. The Times has not identified John Doe because of safety concerns raised by some parties in the matter. Mr. Oberlander was quoted in the article as saying that the secrecy shrouding the John Doe case had kept investors from learning about the businessman’s criminal record, which Mr. Oberlander contended should have been disclosed. But I. Leo Glasser, the judge who had presided over the case that resulted in a guilty plea from John Doe, found that Mr. Oberlander had “knowingly and intentionally flouted” a court order by “unilaterally deciding” to disclose information from the businessman’s sealed case, an appellate order said.
Monday, March 5, 2012
New, Creative Way to Fix Court Cases
'Tix fix' in reverse
The New York Post by Brad Hamilton - March 4, 2012
Some cops "lie' in court to avoid pay dock
You just can’t win
How hard is it to win in traffic court? Hard — and getting much harder. A probe by a veteran traffic-court defense lawyer revealed spiking guilty rates for the six judges who hear cases at the Manhattan South bureau on Rector Street, the city’s busiest. Each convicted a higher percentage of drivers who argued cases against cops last year than in 2010, according to DMV stats that the lawyer received through a Freedom of Information request. This comes following an NYPD crackdown that docks officers’ pay and vacation time if they make mistakes in court. Most are well known to judges, who might be sympathetic to their plight.
GUILTY TILL PROVEN GUILTY: With Internal Affairs shadowing cops testifying in traffic court, officers are being pressured to stretch the truth, defense lawyers say.
Here’s the scorecard:
The New York Post by Brad Hamilton - March 4, 2012
Some cops "lie' in court to avoid pay dock
The NYPD is so worried about ticket fixing that it has sent teams of Internal Affairs Bureau investigators to traffic court to spy on officers as they testify — and dock the pay or vacation days of cops who lose cases. The new system, devised by Police Commissioner Ray Kelly last year after the ticket-fixing scandal, permanently stations IAB investigators at each of the city’s eight traffic courts. There are three IAB sergeants at the Manhattan South Traffic Violations Bureau, at 19 Rector St., the city’s busiest, where they watch officers’ every move to make sure cops aren’t tanking cases to help out friends or family. The IAB team also listens to proceedings without being in the hearing rooms, which are wired with microphones. Undercover officers observe. Cops deemed to not have performed well risk losing as many as 10 vacation days or two weeks pay, sources said. “They manage this through a spirit of fear,” said one veteran cop. “Maybe the officer doesn’t present his testimony good enough. So they say, ‘OK, we’re going to take a week’s pay from you.’ ” The result is higher conviction rates — and a tense atmosphere in which officers sometimes falsify their notes and don’t tell the truth in court to avoid being punished, police and defense lawyers say. Defense lawyers say sympathetic judges even coach cops on what to say. “They see these cops every day, and they get to know them,” said one. “If a guy’s going to get into trouble, it’s, like, ‘I don’t want to let that happen.’ ” Statistics obtained by The Post show that each of the six judges in Manhattan South logged a higher percentage of guilty verdicts last year than in 2010. Judge Mark Harris had the highest conviction rate — 65.4 percent, up 9 percent over 2010. Judge Claudio Collins went from 44.9 to 61.8 percent. The mounting stress has encouraged cops to fudge evidence, both sides say. “Officers aren’t being honest because they are under this tremendous pressure,” said defense lawyer Lauren Asher Rosenthal. “It’s had this chilling effect.” Said another attorney: “They turned good cops into lying cops.” One officer admitted to The Post that he lied in a recent case in which a driver contested a ticket for failing to signal a lane change. The motorist told a judge that his signal light wasn’t working, and he presented a repair bill showing the light had been fixed soon after the ticket was issued. When the judge asked the cop if he’d checked at the scene to make sure the light was working, the officer falsely claimed he’d done so — and promptly won the case. “It didn’t really bother me to say it. There’s no f--king way I’m losing my vacation over a vehicle summons,” the cop said. Lawyer Stacy Posner said she spotted a cop scribbling notes about a ticket right before being called to testify. “When I asked when he made those notes, he said it was at the time of the summons. So I asked for the memo book and ran my finger down the notes. The ink came off on my finger. I still didn’t win.”
You just can’t win
How hard is it to win in traffic court? Hard — and getting much harder. A probe by a veteran traffic-court defense lawyer revealed spiking guilty rates for the six judges who hear cases at the Manhattan South bureau on Rector Street, the city’s busiest. Each convicted a higher percentage of drivers who argued cases against cops last year than in 2010, according to DMV stats that the lawyer received through a Freedom of Information request. This comes following an NYPD crackdown that docks officers’ pay and vacation time if they make mistakes in court. Most are well known to judges, who might be sympathetic to their plight.
GUILTY TILL PROVEN GUILTY: With Internal Affairs shadowing cops testifying in traffic court, officers are being pressured to stretch the truth, defense lawyers say.
Here’s the scorecard:
Federal Courts Can't Remain Silent on Civil Rights Abuse of Federal Law
Surveillance, Security and Civil Liberties
The New York Times - EDITORIAL - March 3, 2012
Taking office not long after the Sept. 11, 2001, attacks, Mayor Michael Bloomberg and Police Commissioner Raymond Kelly wisely decided to beef up the Police Department’s counterterrorism program significantly, to help federal law enforcement agencies avert another disaster. Unfortunately, they did not provide for sufficiently strong supervision of this formidable and far-flung intelligence operation — to check the well-known tendency of all such agencies, operating in secrecy and under murky rules, to abuse their powers. It appears that many thousands of law-abiding Muslim-Americans have paid a real price for that omission. A series of articles by The Associated Press has exposed constitutionally suspect surveillance of Muslims in New York, New Jersey, Long Island and beyond. Unearthed police records noticeably lack any apparent link to suspected criminal activity, or any obvious payoff for public safety. In particular, the A.P. reports revealed widespread police spying and the creation of police records containing information on Muslim people, mosques and campus groups, as well as luncheonettes, dollar stores and other legitimate businesses owned and frequented by Muslims, with no apparent reason to think anything wrong was going on. In mid-February, The A.P. disclosed that police officers systematically monitored the Web sites and blogs of Muslim student groups at N.Y.U., Columbia, Yale, Rutgers and a dozen other colleges. Documents show that an undercover agent accompanied 18 Muslim students from City College on a whitewater rafting trip in 2008. Dossier entries noted vital national security information — like the number of times they prayed.
Last week, The A.P. reported that plainclothes officers from the department’s euphemistically named Demographic Unit fanned out across Newark in 2007, snapping pictures of mosques and Muslim-owned businesses, listening to conversations, and gathering information about the makeup of mosque worshipers for an eerie 60-page internal police report stamped “NYPD Secret.” Similar reports were prepared on other Muslim neighborhoods. Newark’s mayor, Cory Booker, and the president of Rutgers University, Richard McCormick, have spoken out movingly about the wounds inflicted by these activities. Muslims in Newark and at Rutgers, they said, have become reluctant to pray openly at mosques, join in faith-based groups, or frequent Muslim hangouts for fear of being watched and possibly tarred by “guilt by association.” It is a distressing fact of life that mistreatment of Muslims does not draw nearly the protest that it should. But not just Muslims are threatened by this seemingly excessive warrantless surveillance and record-keeping. Today Muslims are the target. In the past it was protesters against the Vietnam War, civil rights activists, socialists. Tomorrow it will be another vulnerable group whose lawful behavior is blended into criminal activity. Mr. Bloomberg has reacted in the worst possible way — with disdain — to those raising legitimate questions about the surveillance program. Asking about its legality, and about whether alienating innocent Muslims is a smart or decent strategy, does not translate into being soft on terrorism, or failing to appreciate that it is a dangerous world. The mayor insists that the actions reported by The A.P. were “legal,” “appropriate” and “constitutional.” He also says the police were only “following leads.” But he has yet to explain what sort of leads, why they justify police surveillance of so many Muslims, or whether the type of surveillance depicted in the news reports continues. Under a federal court decree, it is permissible to collect information from public sources. But going to public places apparently selected on the basis of religion and recording information having nothing to do with terrorism — including religious and political views expressed in mosques and campus gatherings — is another matter. Officials like Gov. Andrew Cuomo, Senator Charles Schumer and the City Council speaker, Christine Quinn, should be urging the Police Department to be less grudging about supplying information that would aid public understanding, instead of racing to give the police a pass. We welcome last week’s statement by Attorney General Eric Holder that the Justice Department is beginning to review complaints about the N.Y.P.D.’s surveillance of Muslim and Arab communities to determine whether a full civil rights investigation is warranted. The review’s prompt completion should be a priority. Meantime, we are wondering what happened to the Michael Bloomberg who stood up for fairness and religious freedom by backing a proposed Muslim community center near ground zero. We hope that mayor re-emerges soon to restore trust.
The New York Times - EDITORIAL - March 3, 2012
Taking office not long after the Sept. 11, 2001, attacks, Mayor Michael Bloomberg and Police Commissioner Raymond Kelly wisely decided to beef up the Police Department’s counterterrorism program significantly, to help federal law enforcement agencies avert another disaster. Unfortunately, they did not provide for sufficiently strong supervision of this formidable and far-flung intelligence operation — to check the well-known tendency of all such agencies, operating in secrecy and under murky rules, to abuse their powers. It appears that many thousands of law-abiding Muslim-Americans have paid a real price for that omission. A series of articles by The Associated Press has exposed constitutionally suspect surveillance of Muslims in New York, New Jersey, Long Island and beyond. Unearthed police records noticeably lack any apparent link to suspected criminal activity, or any obvious payoff for public safety. In particular, the A.P. reports revealed widespread police spying and the creation of police records containing information on Muslim people, mosques and campus groups, as well as luncheonettes, dollar stores and other legitimate businesses owned and frequented by Muslims, with no apparent reason to think anything wrong was going on. In mid-February, The A.P. disclosed that police officers systematically monitored the Web sites and blogs of Muslim student groups at N.Y.U., Columbia, Yale, Rutgers and a dozen other colleges. Documents show that an undercover agent accompanied 18 Muslim students from City College on a whitewater rafting trip in 2008. Dossier entries noted vital national security information — like the number of times they prayed.
Last week, The A.P. reported that plainclothes officers from the department’s euphemistically named Demographic Unit fanned out across Newark in 2007, snapping pictures of mosques and Muslim-owned businesses, listening to conversations, and gathering information about the makeup of mosque worshipers for an eerie 60-page internal police report stamped “NYPD Secret.” Similar reports were prepared on other Muslim neighborhoods. Newark’s mayor, Cory Booker, and the president of Rutgers University, Richard McCormick, have spoken out movingly about the wounds inflicted by these activities. Muslims in Newark and at Rutgers, they said, have become reluctant to pray openly at mosques, join in faith-based groups, or frequent Muslim hangouts for fear of being watched and possibly tarred by “guilt by association.” It is a distressing fact of life that mistreatment of Muslims does not draw nearly the protest that it should. But not just Muslims are threatened by this seemingly excessive warrantless surveillance and record-keeping. Today Muslims are the target. In the past it was protesters against the Vietnam War, civil rights activists, socialists. Tomorrow it will be another vulnerable group whose lawful behavior is blended into criminal activity. Mr. Bloomberg has reacted in the worst possible way — with disdain — to those raising legitimate questions about the surveillance program. Asking about its legality, and about whether alienating innocent Muslims is a smart or decent strategy, does not translate into being soft on terrorism, or failing to appreciate that it is a dangerous world. The mayor insists that the actions reported by The A.P. were “legal,” “appropriate” and “constitutional.” He also says the police were only “following leads.” But he has yet to explain what sort of leads, why they justify police surveillance of so many Muslims, or whether the type of surveillance depicted in the news reports continues. Under a federal court decree, it is permissible to collect information from public sources. But going to public places apparently selected on the basis of religion and recording information having nothing to do with terrorism — including religious and political views expressed in mosques and campus gatherings — is another matter. Officials like Gov. Andrew Cuomo, Senator Charles Schumer and the City Council speaker, Christine Quinn, should be urging the Police Department to be less grudging about supplying information that would aid public understanding, instead of racing to give the police a pass. We welcome last week’s statement by Attorney General Eric Holder that the Justice Department is beginning to review complaints about the N.Y.P.D.’s surveillance of Muslim and Arab communities to determine whether a full civil rights investigation is warranted. The review’s prompt completion should be a priority. Meantime, we are wondering what happened to the Michael Bloomberg who stood up for fairness and religious freedom by backing a proposed Muslim community center near ground zero. We hope that mayor re-emerges soon to restore trust.
Sunday, March 4, 2012
Lawyer, Looking-For-Favors As Prosecutor, Pleads Guilty
Ex-Bronx prosecutor Jennifer Troiano pleads guilty in drunk-driving case
The New York Daily News by Corinne Lestch - March 2, 2012
The New York Daily News by Corinne Lestch - March 2, 2012
Says she’s sorry & donates car to charity
Jennifer Troiano, the former Bronx prosecutor, who took a plea deal in her drunk-driving case....
A disgraced former Bronx prosecutor who tried to weasel out of her arrest pleaded guilty Friday to drunk driving. Ex-assistant district Attorney Jennifer Troiano, who was spared jail time, said she was “deeply sorry” for her actions. An intoxicated Troiano, 34, crashed her car on the Major Deegan Expressway in 2010 and then tried to use her law-enforcement connections to skirt arrest. “No foul, no foul. I didn’t do anything wrong,” she slurred to cops, according to court papers. Officers hauled her in despite her desperate pleas. She was charged with reckless driving, a count that was dropped on a technicality, and driving while intoxicated. “Today I accept responsibility for my actions of Aug. 26, 2010,” Troiano said in Bronx Supreme Court Friday. “It was my distinct honor to serve the people of Bronx County as an assistant district attorney. I am deeply sorry for what I have done and any harm I have caused others.” Under the terms of her plea-bargain agreement, Troiano has to pay a $750 fine plus about $400 in court fees and complete a drunk-driving prevention program. She also had her license revoked for six months and will have to install a device in her car ensuring that she drives sober. But that’s a moot point, said defense lawyer Steven Epstein, because Troiano donated her car to charity. “I can’t tell which charity, but she does a lot of volunteering with animal rights,” Epstein said after his client’s court appearance. Troiano declined to comment as she left Judge Robert Sackett’s courtroom wearing a big smile and a black skirt suit. The deal was hammered out by Epstein and two special prosecutors from the Manhattan DA’s office assigned to the case to avoid a conflict of interest. Troiano was also embroiled in two previous incidents — one in 2005 for crashing a vehicle upstate and the other in 2009 for allegedly driving drunk after leaving a Christmas party. She managed to avoid arrest both times after telling cops she was a prosecutor, sources said. The Bronx DA’s office was investigating cops for fixing tickets and arrests and the appearance of special treatment for Troiano was an embarrassment to prosecutors. Thanks to the plea deal, Troiano’s colleague, fellow prosecutor Amy Weiswasser, was spared the possible humiliation of having to testify against her friend at trial. Epstein would not comment on what Troiano, who was fired by Bronx District Attorney Robert Johnson on Jan. 13, would do next. “She's happy she can move ahead with her life,” he said. With Kevin Deutsch clestch@nydailynews.com
Jennifer Troiano, the former Bronx prosecutor, who took a plea deal in her drunk-driving case....
A disgraced former Bronx prosecutor who tried to weasel out of her arrest pleaded guilty Friday to drunk driving. Ex-assistant district Attorney Jennifer Troiano, who was spared jail time, said she was “deeply sorry” for her actions. An intoxicated Troiano, 34, crashed her car on the Major Deegan Expressway in 2010 and then tried to use her law-enforcement connections to skirt arrest. “No foul, no foul. I didn’t do anything wrong,” she slurred to cops, according to court papers. Officers hauled her in despite her desperate pleas. She was charged with reckless driving, a count that was dropped on a technicality, and driving while intoxicated. “Today I accept responsibility for my actions of Aug. 26, 2010,” Troiano said in Bronx Supreme Court Friday. “It was my distinct honor to serve the people of Bronx County as an assistant district attorney. I am deeply sorry for what I have done and any harm I have caused others.” Under the terms of her plea-bargain agreement, Troiano has to pay a $750 fine plus about $400 in court fees and complete a drunk-driving prevention program. She also had her license revoked for six months and will have to install a device in her car ensuring that she drives sober. But that’s a moot point, said defense lawyer Steven Epstein, because Troiano donated her car to charity. “I can’t tell which charity, but she does a lot of volunteering with animal rights,” Epstein said after his client’s court appearance. Troiano declined to comment as she left Judge Robert Sackett’s courtroom wearing a big smile and a black skirt suit. The deal was hammered out by Epstein and two special prosecutors from the Manhattan DA’s office assigned to the case to avoid a conflict of interest. Troiano was also embroiled in two previous incidents — one in 2005 for crashing a vehicle upstate and the other in 2009 for allegedly driving drunk after leaving a Christmas party. She managed to avoid arrest both times after telling cops she was a prosecutor, sources said. The Bronx DA’s office was investigating cops for fixing tickets and arrests and the appearance of special treatment for Troiano was an embarrassment to prosecutors. Thanks to the plea deal, Troiano’s colleague, fellow prosecutor Amy Weiswasser, was spared the possible humiliation of having to testify against her friend at trial. Epstein would not comment on what Troiano, who was fired by Bronx District Attorney Robert Johnson on Jan. 13, would do next. “She's happy she can move ahead with her life,” he said. With Kevin Deutsch clestch@nydailynews.com
Judge Thomas K. Keefe Backs 1st Amendment Rights
Judge drops charges against 88 Occupy Albany protesters
The Albany Times-Union by Jordan Carleo-Evangelist - March 2, 2012
With no prosecution of Occupy Albany arrests, court has no choice
ALBANY, NY — Seven dozen protesters arrested over the course of Occupy Albany's two-month downtown encampment are officially off the hook. City Court Judge Thomas K. Keefe has formally dismissed more than 100 charges that were still technically pending against the protesters — long after District Attorney David Soares' office announced that it would not prosecute protesters arrested for nonviolent offenses that did not involve property damage while exercising their free speech rights. Citing Soares' refusal to prosecute, Keefe wrote in a brief decision that he had no other choice — making official what had been all but a foregone conclusion. "Absent a clear abuse of discretion, which is not indicated here, this court's only recourse is to dismiss," the judge wrote. The vast majority of the arrests were made by State Police in Lafayette Park in November, when protesters provoked troopers into arresting them after city police had for weeks refused to do so in neighboring Academy Park, home to the protest's large encampment. The arrests became a nightly ritual, during which the protesters — a dozen or a more a night — would gather on the state-owned land in violation of its curfew and peacefully await troopers to bind their hands with plastic ties and lead them away. Soares' refusal to prosecute the arrests — largely for violations such as trespassing — made him an early hero of the movement and a villain to those who viewed the city's refusal to oust the occupiers and Soares' refusal to try them as weak-kneed. To date, only one protester — 63-year-old William Preston — has pleaded guilty to anything in connection with the encampment. Preston was charged with resisting arrest, criminal contempt and obstruction of governmental administration during the Dec. 22 confrontation with police that followed the city's dismantling of the encampment. Preston pleaded guilty last month to disorderly conduct, a noncriminal violation that landed him a $250 fine and a court surcharge around $200. The protesters remain locked in civil litigation with the city over its enforcement of a court order to dismantle their tents. The occupiers, who are now ensconced in a Madison Avenue storefront, maintain their right to camp in the city-owned park across the street from City Hall and the Capitol — not just protest there — is protected by the First Amendment. jcarleo-evangelist@timesunion.com
The Albany Times-Union by Jordan Carleo-Evangelist - March 2, 2012
With no prosecution of Occupy Albany arrests, court has no choice
ALBANY, NY — Seven dozen protesters arrested over the course of Occupy Albany's two-month downtown encampment are officially off the hook. City Court Judge Thomas K. Keefe has formally dismissed more than 100 charges that were still technically pending against the protesters — long after District Attorney David Soares' office announced that it would not prosecute protesters arrested for nonviolent offenses that did not involve property damage while exercising their free speech rights. Citing Soares' refusal to prosecute, Keefe wrote in a brief decision that he had no other choice — making official what had been all but a foregone conclusion. "Absent a clear abuse of discretion, which is not indicated here, this court's only recourse is to dismiss," the judge wrote. The vast majority of the arrests were made by State Police in Lafayette Park in November, when protesters provoked troopers into arresting them after city police had for weeks refused to do so in neighboring Academy Park, home to the protest's large encampment. The arrests became a nightly ritual, during which the protesters — a dozen or a more a night — would gather on the state-owned land in violation of its curfew and peacefully await troopers to bind their hands with plastic ties and lead them away. Soares' refusal to prosecute the arrests — largely for violations such as trespassing — made him an early hero of the movement and a villain to those who viewed the city's refusal to oust the occupiers and Soares' refusal to try them as weak-kneed. To date, only one protester — 63-year-old William Preston — has pleaded guilty to anything in connection with the encampment. Preston was charged with resisting arrest, criminal contempt and obstruction of governmental administration during the Dec. 22 confrontation with police that followed the city's dismantling of the encampment. Preston pleaded guilty last month to disorderly conduct, a noncriminal violation that landed him a $250 fine and a court surcharge around $200. The protesters remain locked in civil litigation with the city over its enforcement of a court order to dismantle their tents. The occupiers, who are now ensconced in a Madison Avenue storefront, maintain their right to camp in the city-owned park across the street from City Hall and the Capitol — not just protest there — is protected by the First Amendment. jcarleo-evangelist@timesunion.com
Madoff Trustee Compromises with Former SEC General Counsel
Madoff Trustee Compromises With Ex-SEC GC, Brothers
The New York Law Journal by Sue Reisinger - March 1, 2012
The trustee handling Ponzi schemer Bernard Madoff's bankruptcy has reached a compromise with David Becker, the former general counsel of the Securities and Exchange Commission, and Mr. Becker's two brothers. The Beckers agreed to pay back $556,017—about $1 million short of what the trustee originally sought. "The trustee, in the exercise of his business judgment, has determined that it is appropriate to reach a business resolution in this matter rather than continue the litigation," states the motion for approval filed on Feb. 27. The deal put together by court-appointed trustee Irving Picard still must be approved by Southern District Bankruptcy Judge Burton Lifland. The court has scheduled a hearing on approval of the settlement for April 3. The mother of David, Daniel, and William Becker had originally invested in the fund, and the proceeds from it went into her estate when she died in June 2004. In February 2005, the fund wired more than $2 million into an account held by the probate estate, and the money was commingled with other probate funds, according to court documents. All this occurred years before Mr. Madoff was exposed as a fraud and received a 150-year prison sentence in 2009. Mr. Picard of Baker & Hostetler, the court-appointed trustee, originally asked for nearly $1.55 million in so-called "fictitious profits," meaning that he claimed the probate estate withdrew $1.55 million more from the mother's account than was ever invested.
Mr. Picard explained in an affidavit why he settled for much less: "I recognize that litigating the trustee's claims would undoubtedly be complex, create significant delay, and would involve litigation risk, particularly considering the unique facts and Massachusetts probate law issues involved in this case… The settlement furthers the interests of the customers [of the Madoff fund] by, among other things, adding $556,017 to the Fund of Customer Property without the added delay and uncertainty of further litigation." Mr. Picard's motion also states that the settlement amount represents the "total amount" of Madoff money actually received by the three brothers subsequent to their mother's death. A statement issued by Amanda Remus, spokeswoman for the trustee and his counsel at Baker & Hostetler, repeats Mr. Picard's reasons why he is willing to settle for less than he originally sought. Ms. Remus declined comment on Feb. 28 when asked about the additional $1 million. According to a source close to the case, the remaining money went to estate taxes and various fees. Mr. Picard's counsel are David Sheehan, Marc Hirschfield, and Karin Jenson, from the New York office of Baker & Hostetler. The Beckers were represented by William Baker III of Latham & Watkins in Washington, D.C. The trustee's suit against the Becker brothers led to congressional hearings and an ethics investigation by the SEC inspector general's office. David Becker was accused of a conflict of interest because he was involved in shaping the SEC's policy toward Madoff investors and their claims. In his defense, Mr. Becker said he told the SEC's ethics office about his mother's account, along with SEC chairwoman Mary Schapiro. They cleared him to participate in the policy discussions, and nothing came of the ethics investigation. Mr. Becker first became GC of the SEC in January 2000; he left in 2002 and then rejoined the agency as GC in 2009 to help with the post-financial crisis policy-making. The trustee filed suit against the Beckers in 2010, and Mr. Becker resigned from the SEC in February 2011. He is now a partner at Cleary Gottlieb Steen & Hamilton in Washington D.C. "As Mr. Becker repeatedly said, he was unaware of his mother's account until long after it was liquidated, and he always expected that he would return any fictitious profits that he unknowingly received," Mr. Becker's attorney said in a statement. He added, "While at the SEC, Mr. Becker made full disclosure of his mother's account and strictly followed SEC ethics procedures. Mr. Becker has done everything possible, both at the SEC and in his private affairs, to assist the victims of the Madoff fraud." Sue Reisinger, a reporter at Corporate Counsel, an affiliate, can be contacted at sreisinger@alm.com.
The New York Law Journal by Sue Reisinger - March 1, 2012
The trustee handling Ponzi schemer Bernard Madoff's bankruptcy has reached a compromise with David Becker, the former general counsel of the Securities and Exchange Commission, and Mr. Becker's two brothers. The Beckers agreed to pay back $556,017—about $1 million short of what the trustee originally sought. "The trustee, in the exercise of his business judgment, has determined that it is appropriate to reach a business resolution in this matter rather than continue the litigation," states the motion for approval filed on Feb. 27. The deal put together by court-appointed trustee Irving Picard still must be approved by Southern District Bankruptcy Judge Burton Lifland. The court has scheduled a hearing on approval of the settlement for April 3. The mother of David, Daniel, and William Becker had originally invested in the fund, and the proceeds from it went into her estate when she died in June 2004. In February 2005, the fund wired more than $2 million into an account held by the probate estate, and the money was commingled with other probate funds, according to court documents. All this occurred years before Mr. Madoff was exposed as a fraud and received a 150-year prison sentence in 2009. Mr. Picard of Baker & Hostetler, the court-appointed trustee, originally asked for nearly $1.55 million in so-called "fictitious profits," meaning that he claimed the probate estate withdrew $1.55 million more from the mother's account than was ever invested.
Mr. Picard explained in an affidavit why he settled for much less: "I recognize that litigating the trustee's claims would undoubtedly be complex, create significant delay, and would involve litigation risk, particularly considering the unique facts and Massachusetts probate law issues involved in this case… The settlement furthers the interests of the customers [of the Madoff fund] by, among other things, adding $556,017 to the Fund of Customer Property without the added delay and uncertainty of further litigation." Mr. Picard's motion also states that the settlement amount represents the "total amount" of Madoff money actually received by the three brothers subsequent to their mother's death. A statement issued by Amanda Remus, spokeswoman for the trustee and his counsel at Baker & Hostetler, repeats Mr. Picard's reasons why he is willing to settle for less than he originally sought. Ms. Remus declined comment on Feb. 28 when asked about the additional $1 million. According to a source close to the case, the remaining money went to estate taxes and various fees. Mr. Picard's counsel are David Sheehan, Marc Hirschfield, and Karin Jenson, from the New York office of Baker & Hostetler. The Beckers were represented by William Baker III of Latham & Watkins in Washington, D.C. The trustee's suit against the Becker brothers led to congressional hearings and an ethics investigation by the SEC inspector general's office. David Becker was accused of a conflict of interest because he was involved in shaping the SEC's policy toward Madoff investors and their claims. In his defense, Mr. Becker said he told the SEC's ethics office about his mother's account, along with SEC chairwoman Mary Schapiro. They cleared him to participate in the policy discussions, and nothing came of the ethics investigation. Mr. Becker first became GC of the SEC in January 2000; he left in 2002 and then rejoined the agency as GC in 2009 to help with the post-financial crisis policy-making. The trustee filed suit against the Beckers in 2010, and Mr. Becker resigned from the SEC in February 2011. He is now a partner at Cleary Gottlieb Steen & Hamilton in Washington D.C. "As Mr. Becker repeatedly said, he was unaware of his mother's account until long after it was liquidated, and he always expected that he would return any fictitious profits that he unknowingly received," Mr. Becker's attorney said in a statement. He added, "While at the SEC, Mr. Becker made full disclosure of his mother's account and strictly followed SEC ethics procedures. Mr. Becker has done everything possible, both at the SEC and in his private affairs, to assist the victims of the Madoff fraud." Sue Reisinger, a reporter at Corporate Counsel, an affiliate, can be contacted at sreisinger@alm.com.
Saturday, March 3, 2012
MORE ON: Federal Judge Who Filed Complaint Against Himself
Cebull apologizes to Obama for racist email; critics demand resignation
The Billings Gazette by Clair Johnson - March 2, 2012
Chief Judge Richard F. Cebull apologized on Wednesday for forwarding a racist joke to friends from his work email. Montana's top federal judge admits sending racist email about Obama.
Richard Cebull, Montana’s chief U.S. district judge, asked Thursday for a formal judicial review after he admitted forwarding a racist email “joke” involving bestiality and President Barack Obama's mother. The judge also sent a formal apology to President Obama and his family. “I accept full responsibility; I have no one to blame but myself,” the judge wrote in the letter. Cebull wrote that such a mistake would never happen again and that he had requested a judicial review. “Honestly, I don’t know what else I can do. Please forgive me and, again, my most sincere apology,” Cebull wrote. The extraordinary action came a day after Cebull admitted and apologized for forwarding the email from his work computer to six friends on Feb. 20. Cebull acknowledged that the email was racist, but said he is not a racist – and that he sent along the email only because he dislikes Obama politically. In Cebull’s letter seeking the review, the judge said he has “apologized publicly and profusely for my serious mistake and lack of judgment.” He also waived any confidentiality to his request or the proceedings. Cebull did not return calls seeking comment on Thursday. News of the email triggered calls for Cebull’s resignation from national and Montana organizations and from a former Montana senator. Cathy A. Catterson, an administrator with the 9th U.S. Circuit Court of Appeals, based in San Francisco, said in a statement Thursday afternoon: “Chief District Judge Cebull has publicly acknowledged that he has acted inappropriately. By a letter to Chief Judge Alex Kozinski of the Ninth Circuit, Judge Cebull has initiated the process by which a complaint of judicial misconduct will be brought against him.” Kozinski has notified the circuit’s judicial council of the complaint, and the council is expected “to act expeditiously in investigating and resolving this matter,” Catterson said.
Common Cause, a nonpartisan government watchdog group, also filed a formal complaint against Cebull with the 9th Circuit. The organization accused the judge of violating federal judicial canons and of conduct “prejudicial to the effective and expeditious administration of the business of the courts.” “If he has any respect for his office and for ideals of equality and human dignity on which our country was founded, Judge Cebull will step down today,” said Bob Edgar, president of the Washington, D.C.-based group. Cebull’s actions violate codes of conduct for U.S. judges, which include acting in a manner that “promotes public confidence in the integrity and impartiality of the judiciary” and refraining from political activity, Edgar said. The canons are ethical standards published by the U.S. Judicial Conference to guide federal district and appellate court judges. “We’re sending our letter to every member of Congress to bring this to their attention,” said Mary Boyle, a communications spokeswoman for Common Cause. Cebull could be impeached or censured, Boyle said, and Common Cause supports impeachment. Former Montana Sen. John Melcher, a Democrat, also said Cebull should resign. “This is so untypical of Montanans’ attitude. He’s disgraced us. It’s a reflection on everybody in Montana,” said Melcher from his Missoula home. While calling Cebull’s apology “a step in the right direction,” Melcher said the judge has insulted the president as well as wives and mothers. “He’s a leading federal judge in Montana. This is a big mistake for a judge,” Melcher said. “I suspect he won’t quit, but I wish he would. I think he should,” he said. Jed Link, Rep. Denny Rehberg’s spokesman, said the congressman talked to Cebull on Thursday afternoon and expressed his concern about the matter. “Judge Cebull apologized, and Denny took his apology to be heartfelt and sincere,” Link said. Rehberg also thought Cebull’s letter and request for review were necessary and appropriate, Link said. Andrea Helling, a spokeswoman for Sen. Jon Tester, D-Mont., said on Thursday, “Jon is concerned by the situation because it calls into question the lack of judgment by a federal judge.” Montana Sen. Max Baucus, a Democrat, said in a statement: “Like many Montanans, I read the story with disappointment. The email Judge Cebull forwarded was racist, degrading to women and nothing that should be repeated or shared.” The Montana Human Rights Network said Cebull should step down and had collected about 250 signatures on a petition it posted on its website. The petition calls for Cebull’s resignation. Travis McAdam, Montana Human Rights Network’s executive director, said Cebull had not only violated codes of conduct but also the public’s trust. Women and people of color, he said, would have legitimate reason to wonder if they would be treated fairly in his court. “If nothing else, he has created a perception that he might not be fair,” McAdam said. The Montana State Bar also said it was concerned and that people could file complaints with the 9th Circuit. “The email was inappropriate. We understand why people are disturbed,” said Shane Vannatta, president of the organization. “The integrity of the judicial system and process is important to the State Bar of Montana. We want the public to be able to respect and trust our judicial system,” he said. Other groups calling for Cebull’s resignation include People for the American Way and The Leadership Conference on Civil and Human Rights, a coalition of 200 national organizations that promotes civil rights. The story was run by news organizations across the country, including National Public Radio, The Washington Post, the Los Angeles Times, Politico, the Huffingtonpost, USA Today and the Seattle Post-Intelligencer. Cebull was a federal magistrate based in Great Falls when he was nominated for the judgeship by former President George W. Bush in 2001. He had been recommended jointly by Baucus and then-Sen. Conrad Burns. He has served as chief judge since 2008 and is based in the Billings division. The Administrative Office of the U.S. Courts in Washington, D.C., clarified the process in place to address judicial complaints. Dick Carelli, from the agency’s Office of Public Affairs, said anyone can file a complaint against a federal judge with the chief judge of the circuit in which the judge works. The chief judge has the authority to review and dismiss complaints as lacking merit or refer them to a council of circuit judges for review. The council has a broad range of options, from dismissing complaints to referring them to a board of judges with the Judicial Conference, which is a policy-making board for the judiciary. The conference could recommend impeachment or issue a variety of other disciplinary measures, he said.
CLICK HERE TO SEE BACKGROUND STORY, "Federal Judge Files Ethics Complaint Against Federal Judge."
The Billings Gazette by Clair Johnson - March 2, 2012
Chief Judge Richard F. Cebull apologized on Wednesday for forwarding a racist joke to friends from his work email. Montana's top federal judge admits sending racist email about Obama.
Richard Cebull, Montana’s chief U.S. district judge, asked Thursday for a formal judicial review after he admitted forwarding a racist email “joke” involving bestiality and President Barack Obama's mother. The judge also sent a formal apology to President Obama and his family. “I accept full responsibility; I have no one to blame but myself,” the judge wrote in the letter. Cebull wrote that such a mistake would never happen again and that he had requested a judicial review. “Honestly, I don’t know what else I can do. Please forgive me and, again, my most sincere apology,” Cebull wrote. The extraordinary action came a day after Cebull admitted and apologized for forwarding the email from his work computer to six friends on Feb. 20. Cebull acknowledged that the email was racist, but said he is not a racist – and that he sent along the email only because he dislikes Obama politically. In Cebull’s letter seeking the review, the judge said he has “apologized publicly and profusely for my serious mistake and lack of judgment.” He also waived any confidentiality to his request or the proceedings. Cebull did not return calls seeking comment on Thursday. News of the email triggered calls for Cebull’s resignation from national and Montana organizations and from a former Montana senator. Cathy A. Catterson, an administrator with the 9th U.S. Circuit Court of Appeals, based in San Francisco, said in a statement Thursday afternoon: “Chief District Judge Cebull has publicly acknowledged that he has acted inappropriately. By a letter to Chief Judge Alex Kozinski of the Ninth Circuit, Judge Cebull has initiated the process by which a complaint of judicial misconduct will be brought against him.” Kozinski has notified the circuit’s judicial council of the complaint, and the council is expected “to act expeditiously in investigating and resolving this matter,” Catterson said.
Common Cause, a nonpartisan government watchdog group, also filed a formal complaint against Cebull with the 9th Circuit. The organization accused the judge of violating federal judicial canons and of conduct “prejudicial to the effective and expeditious administration of the business of the courts.” “If he has any respect for his office and for ideals of equality and human dignity on which our country was founded, Judge Cebull will step down today,” said Bob Edgar, president of the Washington, D.C.-based group. Cebull’s actions violate codes of conduct for U.S. judges, which include acting in a manner that “promotes public confidence in the integrity and impartiality of the judiciary” and refraining from political activity, Edgar said. The canons are ethical standards published by the U.S. Judicial Conference to guide federal district and appellate court judges. “We’re sending our letter to every member of Congress to bring this to their attention,” said Mary Boyle, a communications spokeswoman for Common Cause. Cebull could be impeached or censured, Boyle said, and Common Cause supports impeachment. Former Montana Sen. John Melcher, a Democrat, also said Cebull should resign. “This is so untypical of Montanans’ attitude. He’s disgraced us. It’s a reflection on everybody in Montana,” said Melcher from his Missoula home. While calling Cebull’s apology “a step in the right direction,” Melcher said the judge has insulted the president as well as wives and mothers. “He’s a leading federal judge in Montana. This is a big mistake for a judge,” Melcher said. “I suspect he won’t quit, but I wish he would. I think he should,” he said. Jed Link, Rep. Denny Rehberg’s spokesman, said the congressman talked to Cebull on Thursday afternoon and expressed his concern about the matter. “Judge Cebull apologized, and Denny took his apology to be heartfelt and sincere,” Link said. Rehberg also thought Cebull’s letter and request for review were necessary and appropriate, Link said. Andrea Helling, a spokeswoman for Sen. Jon Tester, D-Mont., said on Thursday, “Jon is concerned by the situation because it calls into question the lack of judgment by a federal judge.” Montana Sen. Max Baucus, a Democrat, said in a statement: “Like many Montanans, I read the story with disappointment. The email Judge Cebull forwarded was racist, degrading to women and nothing that should be repeated or shared.” The Montana Human Rights Network said Cebull should step down and had collected about 250 signatures on a petition it posted on its website. The petition calls for Cebull’s resignation. Travis McAdam, Montana Human Rights Network’s executive director, said Cebull had not only violated codes of conduct but also the public’s trust. Women and people of color, he said, would have legitimate reason to wonder if they would be treated fairly in his court. “If nothing else, he has created a perception that he might not be fair,” McAdam said. The Montana State Bar also said it was concerned and that people could file complaints with the 9th Circuit. “The email was inappropriate. We understand why people are disturbed,” said Shane Vannatta, president of the organization. “The integrity of the judicial system and process is important to the State Bar of Montana. We want the public to be able to respect and trust our judicial system,” he said. Other groups calling for Cebull’s resignation include People for the American Way and The Leadership Conference on Civil and Human Rights, a coalition of 200 national organizations that promotes civil rights. The story was run by news organizations across the country, including National Public Radio, The Washington Post, the Los Angeles Times, Politico, the Huffingtonpost, USA Today and the Seattle Post-Intelligencer. Cebull was a federal magistrate based in Great Falls when he was nominated for the judgeship by former President George W. Bush in 2001. He had been recommended jointly by Baucus and then-Sen. Conrad Burns. He has served as chief judge since 2008 and is based in the Billings division. The Administrative Office of the U.S. Courts in Washington, D.C., clarified the process in place to address judicial complaints. Dick Carelli, from the agency’s Office of Public Affairs, said anyone can file a complaint against a federal judge with the chief judge of the circuit in which the judge works. The chief judge has the authority to review and dismiss complaints as lacking merit or refer them to a council of circuit judges for review. The council has a broad range of options, from dismissing complaints to referring them to a board of judges with the Judicial Conference, which is a policy-making board for the judiciary. The conference could recommend impeachment or issue a variety of other disciplinary measures, he said.
CLICK HERE TO SEE BACKGROUND STORY, "Federal Judge Files Ethics Complaint Against Federal Judge."
Judge Who Pulled Gun in Court Leaving Bench
Judge who brandished gun in court to leave bench
The Atlanta Journal-Constitution by Bill Rankin - February 29, 2012
A North Georgia judge who brandished a gun in court last week has decided to step down from the bench.
In a letter sent Wednesday to Gov. Nathan Deal, Chief Superior Court Judge David E. Barrett of the Enotah Judicial Circuit said he was retiring on Thursday. Deal, who will name Barrett's replacement, accepted the retirement letter. A week ago during a Lumpkin County court hearing, Barrett pulled out his handgun -- not in anger but in frustration -- to try and make a point to a witness who was testifying she had been an assault victim. Feigning to offer his gun to the woman, Barrett told her she was killing her case and then told her, "You might as well shoot your lawyer," according to District Attorney Jeff Langley, who was in the courtroom at the time. Langley said Barrett was trying to make "a poor rhetorical point." Langley said he quickly approached the bench and told Barrett to put the gun away, which the judge did. "It was totally inappropriate conduct for a courtroom," Langley said in a recent interview. He stepped down amid a Judicial Qualifications Commission investigation into the incident. Barrett has not returned phone calls seeking comment. Gainesville lawyer Dan Summer, who was questioning the witness when Barrett pulled out his gun, said it "was a little bit reckless. ... I was a little concerned when it was pointed at me." Summer also said the witness, who had testified she had been raped and assaulted, was being disrespectful, combative and unresponsive during her examination on the stand. When Barrett pulled out the gun to make his point, Summer said, "It was consistent with the judge's personality of injecting himself in litigation, except this time a bit more than he should." Summer said he was saddened to hear Barrett was stepping down. "I certainly don't encourage judges to pull guns out in a courtroom," Summer said. "But you shouldn't judge a man by a single page of the book of his life, not by a single incident."
CLICK HERE TO SEE BACKGROUND STORY, "Judge Accused of Pulling a Gun in Court"
The Atlanta Journal-Constitution by Bill Rankin - February 29, 2012
A North Georgia judge who brandished a gun in court last week has decided to step down from the bench.
In a letter sent Wednesday to Gov. Nathan Deal, Chief Superior Court Judge David E. Barrett of the Enotah Judicial Circuit said he was retiring on Thursday. Deal, who will name Barrett's replacement, accepted the retirement letter. A week ago during a Lumpkin County court hearing, Barrett pulled out his handgun -- not in anger but in frustration -- to try and make a point to a witness who was testifying she had been an assault victim. Feigning to offer his gun to the woman, Barrett told her she was killing her case and then told her, "You might as well shoot your lawyer," according to District Attorney Jeff Langley, who was in the courtroom at the time. Langley said Barrett was trying to make "a poor rhetorical point." Langley said he quickly approached the bench and told Barrett to put the gun away, which the judge did. "It was totally inappropriate conduct for a courtroom," Langley said in a recent interview. He stepped down amid a Judicial Qualifications Commission investigation into the incident. Barrett has not returned phone calls seeking comment. Gainesville lawyer Dan Summer, who was questioning the witness when Barrett pulled out his gun, said it "was a little bit reckless. ... I was a little concerned when it was pointed at me." Summer also said the witness, who had testified she had been raped and assaulted, was being disrespectful, combative and unresponsive during her examination on the stand. When Barrett pulled out the gun to make his point, Summer said, "It was consistent with the judge's personality of injecting himself in litigation, except this time a bit more than he should." Summer said he was saddened to hear Barrett was stepping down. "I certainly don't encourage judges to pull guns out in a courtroom," Summer said. "But you shouldn't judge a man by a single page of the book of his life, not by a single incident."
CLICK HERE TO SEE BACKGROUND STORY, "Judge Accused of Pulling a Gun in Court"
Attorney's Improper Remarks Warrant Retrial, Panel Rules
Attorney's Improper Remarks Warrant Retrial, Panel Rules
The New York Law Journal by Joel Stashenko - March 5, 2012
An attorney's comments during a medical malpractice trial, including his accusation that the plaintiff's treating physician was the "go-to" doctor for people seeking disability benefits, merits a new trial, an appeals court has decided. "A new trial is warranted in light of the inappropriate cross-examination of the plaintiffs' witnesses, as well as the inflammatory and improper summation comments of counsel for the defendants," the four-member Appellate Division, Second Department, panel decided unanimously in Maraviglia v. Lokshina, 2010-09029/2010-09031. The Brooklyn-based panel held that defense counsel Shawn P. Kelly crossed the bounds of acceptable questioning and comment at several points during the 2010 malpractice trial initiated by Joan Maraviglia against Dr. Irina Lokshina, Stony Brook Anesthesiology and others. The trial ended with a 5-1 jury verdict against Ms. Maraviglia, who claimed malpractice in treatment she received for chronic knee pain that ended in partial paralysis of one leg following a spinal procedure to relieve her pain, according to her briefs. The panel of Justices Reinaldo E. Rivera, Randall T. Eng, Sheri S. Roman and Sandra L. Sgroi also found in the March 2 ruling that Suffolk County Supreme Court Justice Thomas F. Whelan erred at trial by not setting aside the jury's judgment against Ms. Maraviglia under CPLR 4404(a). Mr. Kelly, of Kelly, Rode & Kelly in Mineola, said in an interview that he stands by his conduct and intends to represent Dr. Lokshina and the other defendants during a retrial. Among the panel's objections was Mr. Kelly's treatment of the plaintiff's expert anesthesiologist, Dr. Alexander Weingarten, in cross-examination. The panel noted that Mr. Kelly was allowed to question Dr. Weingarten about problems the Health Department discovered in the anesthesiology department at the Long Island Jewish Medical Center, despite a "lack of any evidence to the contrary" that Dr. Weingarten was involved in any wrongdoing. "Counsel also commented that the plaintiffs' expert was 'sensitive' about this topic, and stated repeatedly that the expert was 'out of control,'" the court ruled. "Further, in questioning [Dr. Weingarten] about a malpractice case that had been brought against him, counsel remarked that the expert had been 'afraid to take the witness stand in that case.'" Mr. Kelly also referred in court to Dr. Weingarten performing medicine in a "parking lot." That reference was made twice, the panel said, even though the plaintiff's objection had been sustained the first time. Justice Whelan also unfairly allowed Mr. Kelly to inject "inflammatory" comments about Dr. Andrea Coladner, Ms. Maraviglia's treating physician, into his summation, the panel said.
Comments made by Mr. Kelly implying that Dr. Coladner was involved in a scam because she testified in an "enormous" number of cases involving petitioners seeking Workers' Compensation benefits for on-the-job injuries were "inflammatory" and not supported by the evidence, the court said. It found fault with Mr. Kelly being allowed in the jury's presence to vouch for the reliability of his own expert witnesses and to improperly add credence to the veracity of one of his witnesses by thanking "God there are people like [him] who are the stop gap." Finally, the panel noted that the defense was allowed to call an expert witness on the economy to quiz him about "collateral" issues involved with setting economic damages that were not on legal point in Ms. Maraviglia's case. Mr. Kelly quizzed the expert, Clemson University economics professor G. Richard Thompson, about the fact that the state judiciary has not had a pay raise since 1999, the panel noted. According to the transcript of the case, Justice Whelan at one point said "I am a public servant" or "I am a public official" when asked by Mr. Kelly whether the witness knew the judge and others like him in New York state who had not had a pay raise in more than 11 years. The panel ordered a new trial in Suffolk County Supreme Court. Mr. Kelly, who also handled the appeal, said he was disappointed that the case would have to be retried. He noted that the jury was out only two hours after a five-week trial before returning with a verdict exonerating his clients. Mr. Kelly said the lines of questioning he took against the plaintiff's witnesses were valid ones based on evidence and comments they had made on direct examination. He said, for instance, that he asked Mr. Thompson about the long pay-raise delay for judges as a way of calling the plaintiff's expert's knowledge of the New York economy and court finances into question. In turn, that could have raised issues about the expert's knowledge of local economics when proposing damages, he said. "I don't believe anything I said was improper at all, especially in the context of this case," Mr. Kelly said in an interview. Ms. Maraviglia's attorney, John J. Juliano of East Northport, who handled both the trial and the appeal, said he would represent her at a retrial. "I think what you're seeing here is that this should not be tolerated, this kind of conduct," Mr. Juliano said in an interview. "You can be sharp in presentation, sharp in examination, but you can't demean the people before you. I think that is what happened." He added, "This is a warning to attorneys that they have to practice professionally and not be like some Rambo-type individual in the courtrooms. We are still a profession and we have certain parameters that should be practiced in a court of law." Mr. Kelly declined to comment on the "Rambo" reference. Joel Stashenko can be contacted at jstashenko@alm.com.
The New York Law Journal by Joel Stashenko - March 5, 2012
An attorney's comments during a medical malpractice trial, including his accusation that the plaintiff's treating physician was the "go-to" doctor for people seeking disability benefits, merits a new trial, an appeals court has decided. "A new trial is warranted in light of the inappropriate cross-examination of the plaintiffs' witnesses, as well as the inflammatory and improper summation comments of counsel for the defendants," the four-member Appellate Division, Second Department, panel decided unanimously in Maraviglia v. Lokshina, 2010-09029/2010-09031. The Brooklyn-based panel held that defense counsel Shawn P. Kelly crossed the bounds of acceptable questioning and comment at several points during the 2010 malpractice trial initiated by Joan Maraviglia against Dr. Irina Lokshina, Stony Brook Anesthesiology and others. The trial ended with a 5-1 jury verdict against Ms. Maraviglia, who claimed malpractice in treatment she received for chronic knee pain that ended in partial paralysis of one leg following a spinal procedure to relieve her pain, according to her briefs. The panel of Justices Reinaldo E. Rivera, Randall T. Eng, Sheri S. Roman and Sandra L. Sgroi also found in the March 2 ruling that Suffolk County Supreme Court Justice Thomas F. Whelan erred at trial by not setting aside the jury's judgment against Ms. Maraviglia under CPLR 4404(a). Mr. Kelly, of Kelly, Rode & Kelly in Mineola, said in an interview that he stands by his conduct and intends to represent Dr. Lokshina and the other defendants during a retrial. Among the panel's objections was Mr. Kelly's treatment of the plaintiff's expert anesthesiologist, Dr. Alexander Weingarten, in cross-examination. The panel noted that Mr. Kelly was allowed to question Dr. Weingarten about problems the Health Department discovered in the anesthesiology department at the Long Island Jewish Medical Center, despite a "lack of any evidence to the contrary" that Dr. Weingarten was involved in any wrongdoing. "Counsel also commented that the plaintiffs' expert was 'sensitive' about this topic, and stated repeatedly that the expert was 'out of control,'" the court ruled. "Further, in questioning [Dr. Weingarten] about a malpractice case that had been brought against him, counsel remarked that the expert had been 'afraid to take the witness stand in that case.'" Mr. Kelly also referred in court to Dr. Weingarten performing medicine in a "parking lot." That reference was made twice, the panel said, even though the plaintiff's objection had been sustained the first time. Justice Whelan also unfairly allowed Mr. Kelly to inject "inflammatory" comments about Dr. Andrea Coladner, Ms. Maraviglia's treating physician, into his summation, the panel said.
Comments made by Mr. Kelly implying that Dr. Coladner was involved in a scam because she testified in an "enormous" number of cases involving petitioners seeking Workers' Compensation benefits for on-the-job injuries were "inflammatory" and not supported by the evidence, the court said. It found fault with Mr. Kelly being allowed in the jury's presence to vouch for the reliability of his own expert witnesses and to improperly add credence to the veracity of one of his witnesses by thanking "God there are people like [him] who are the stop gap." Finally, the panel noted that the defense was allowed to call an expert witness on the economy to quiz him about "collateral" issues involved with setting economic damages that were not on legal point in Ms. Maraviglia's case. Mr. Kelly quizzed the expert, Clemson University economics professor G. Richard Thompson, about the fact that the state judiciary has not had a pay raise since 1999, the panel noted. According to the transcript of the case, Justice Whelan at one point said "I am a public servant" or "I am a public official" when asked by Mr. Kelly whether the witness knew the judge and others like him in New York state who had not had a pay raise in more than 11 years. The panel ordered a new trial in Suffolk County Supreme Court. Mr. Kelly, who also handled the appeal, said he was disappointed that the case would have to be retried. He noted that the jury was out only two hours after a five-week trial before returning with a verdict exonerating his clients. Mr. Kelly said the lines of questioning he took against the plaintiff's witnesses were valid ones based on evidence and comments they had made on direct examination. He said, for instance, that he asked Mr. Thompson about the long pay-raise delay for judges as a way of calling the plaintiff's expert's knowledge of the New York economy and court finances into question. In turn, that could have raised issues about the expert's knowledge of local economics when proposing damages, he said. "I don't believe anything I said was improper at all, especially in the context of this case," Mr. Kelly said in an interview. Ms. Maraviglia's attorney, John J. Juliano of East Northport, who handled both the trial and the appeal, said he would represent her at a retrial. "I think what you're seeing here is that this should not be tolerated, this kind of conduct," Mr. Juliano said in an interview. "You can be sharp in presentation, sharp in examination, but you can't demean the people before you. I think that is what happened." He added, "This is a warning to attorneys that they have to practice professionally and not be like some Rambo-type individual in the courtrooms. We are still a profession and we have certain parameters that should be practiced in a court of law." Mr. Kelly declined to comment on the "Rambo" reference. Joel Stashenko can be contacted at jstashenko@alm.com.
Could Interest in Truth be Returning to Courts?
Judge Spurns SEC-Citigroup Deal as Contrary to Interest in Truth
The New York Law Journal by Mark Hamblett - November 29, 2011
Southern District Judge Jed S. Rakoff yesterday [November 29, 2011] rejected a proposed $285 million settlement between the Securities and Exchange Commission and Citigroup over the marketing of collateralized debt obligations the bank was also selling short. Judge Rakoff said Citigroup created a billion-dollar fund "that allowed it to dump some dubious assets on misinformed investors" but was allowed to settle the case with no admission of wrongdoing. There was "an overriding public interest in knowing the truth," he said, and he would not approve the settlement without some "cold, hard, solid facts." The decision in U.S. Securities and Exchange Commission v. Citigroup Global Markets Inc., 11 Civ. 7387, comes just weeks after Judge Rakoff grilled Matthew T. Martens, the SEC's chief litigation counsel, at a hearing on the consent judgment, which was filed simultaneously with the lawsuit on Oct. 19. Specifically, the judge wanted Mr. Martens to explain why the court should be compelled to approve the settlement as against the public interest even if he found the settlement to be otherwise fair, reasonable and adequate and after he gave due deference to the SEC's judgment (NYLJ, Nov. 10). The consent judgment requires Citigroup to disgorge $160 million in profits, with $30 million in interest, and pay a civil penalty of $95 million. It also requires Citigroup to adopt internal controls and measures to hold individuals accountable for signing off on public statements about the worthiness of the investments pitched by Citigroup, measures that counsel Brad S. Karp of Paul, Weiss, Rifkind, Wharton & Garrison said at the hearing had already been undertaken. Mr. Martens had submitted papers saying the public interest was not part of the judge's analysis. "This is erroneous," Judge Rakoff said in his 15-page opinion and order. "A large part of what the S.E.C. requests, in this and most other consent judgments, is injunctive relief, both broadly, in the request for an injunction forbidding future violations, and more narrowly, in the request that the court enforce future prophylactic measures."
"The Supreme Court has repeatedly made clear, however, that a court cannot grant the extraordinary remedy of injunctive relief without considering the public interest," he said, citing eBay, Inc. v. MercExchange, 547 U.S. 388 (2006). In the end, Judge Rakoff concluded "regretfully" that "the proposed consent judgment is neither fair, nor reasonable, nor adequate, nor in the public interest." The reason, he said, was that he had not been given enough evidence to make an informed judgment, for when a public agency asks a court "to become its partner in enforcement" both the public and the court need to know what the underlying facts are. Otherwise, he said, "the court becomes a mere handmaiden to a settlement privately negotiated on the basis of unknown facts, while the public is deprived of ever knowing the truth in a matter of obvious public importance." He said the SEC "of all agencies, has a duty, inherent in its statutory mission, to see that the truth emerges; and if it fails to do so, this court must not, in the name of deference or convenience, grant judicial enforcement to the agency's contrivances." Judge Rakoff criticized a settlement with no admission of wrongdoing, where Citigroup is charged only with negligence, and where the deal involves a civil penalty that is "pocket change" to Citigroup and imposes injunctive relief that Citigroup knew the "SEC had not sought to enforce against any financial institution for at least the last 10 years." "It is harder to discern from the limited information before the court what the SEC is getting from this settlement other than a quick headline," he said, adding that Citigroup might just see the money paid as the cost of doing business. Spokeswoman Danielle Romero-Apsilos said in a statement that Citigroup "respectfully disagrees" with the ruling. "We believe the proposed settlement is a fair and reasonable resolution to the SEC's allegation of negligence, which relates to a five-year-old transaction," she said. "We also believe the settlement fully complies with long-established legal standards. In the event the case is tried, we would present substantial factual and legal defenses to the charges." Robert Khuzami, director of the SEC's division of enforcement, said in a statement that the judge's criticism "disregards the fact that obtaining disgorgement, monetary penalties, and mandatory penalties and mandatory business reforms may significantly outweigh the absence of an admission when that relief is obtained promptly and without the risks, delay, and resources required at trial." These kind of settlements have been "repeatedly approved for good reason" by other federal courts, Mr. Khuzami said, including by Judge Rakoff's colleagues. In June, Southern District Judge Richard Berman approved the SEC's $153.6 million settlement with J.P. Morgan Securities in a case that contained nearly identical provisions to the Citigroup settlement and also dealt with an ill-fated CDO. And in July 2010, Judge Barbara Jones approved the SEC's $550 million deal with Goldman Sachs over its ABACUS CDO. Judge Rakoff had faulted the $285 million settlement, an amount he said the consent judgment "only suggests that the SEC 'may'" return to defrauded investors. It was an amount, he said, that "still leaves investors shortchanged." But in his statement, Mr. Khuzami said the securities laws generally limit the SEC to pursuing disgorgement for Citigroup's ill-gotten gains plus a penalty in an amount up to its gain, and he insisted the SEC had intended to deliver the entire $285 million to investors. "We will continue to review the court's ruling and take those steps that best serve the interests of investors," he said. Mark Hamblett can be contacted at mhamblett@alm.com. David Bario, a reporter at The American Lawyer, an affiliate publication, contributed to this report.
The New York Law Journal by Mark Hamblett - November 29, 2011
Southern District Judge Jed S. Rakoff yesterday [November 29, 2011] rejected a proposed $285 million settlement between the Securities and Exchange Commission and Citigroup over the marketing of collateralized debt obligations the bank was also selling short. Judge Rakoff said Citigroup created a billion-dollar fund "that allowed it to dump some dubious assets on misinformed investors" but was allowed to settle the case with no admission of wrongdoing. There was "an overriding public interest in knowing the truth," he said, and he would not approve the settlement without some "cold, hard, solid facts." The decision in U.S. Securities and Exchange Commission v. Citigroup Global Markets Inc., 11 Civ. 7387, comes just weeks after Judge Rakoff grilled Matthew T. Martens, the SEC's chief litigation counsel, at a hearing on the consent judgment, which was filed simultaneously with the lawsuit on Oct. 19. Specifically, the judge wanted Mr. Martens to explain why the court should be compelled to approve the settlement as against the public interest even if he found the settlement to be otherwise fair, reasonable and adequate and after he gave due deference to the SEC's judgment (NYLJ, Nov. 10). The consent judgment requires Citigroup to disgorge $160 million in profits, with $30 million in interest, and pay a civil penalty of $95 million. It also requires Citigroup to adopt internal controls and measures to hold individuals accountable for signing off on public statements about the worthiness of the investments pitched by Citigroup, measures that counsel Brad S. Karp of Paul, Weiss, Rifkind, Wharton & Garrison said at the hearing had already been undertaken. Mr. Martens had submitted papers saying the public interest was not part of the judge's analysis. "This is erroneous," Judge Rakoff said in his 15-page opinion and order. "A large part of what the S.E.C. requests, in this and most other consent judgments, is injunctive relief, both broadly, in the request for an injunction forbidding future violations, and more narrowly, in the request that the court enforce future prophylactic measures."
"The Supreme Court has repeatedly made clear, however, that a court cannot grant the extraordinary remedy of injunctive relief without considering the public interest," he said, citing eBay, Inc. v. MercExchange, 547 U.S. 388 (2006). In the end, Judge Rakoff concluded "regretfully" that "the proposed consent judgment is neither fair, nor reasonable, nor adequate, nor in the public interest." The reason, he said, was that he had not been given enough evidence to make an informed judgment, for when a public agency asks a court "to become its partner in enforcement" both the public and the court need to know what the underlying facts are. Otherwise, he said, "the court becomes a mere handmaiden to a settlement privately negotiated on the basis of unknown facts, while the public is deprived of ever knowing the truth in a matter of obvious public importance." He said the SEC "of all agencies, has a duty, inherent in its statutory mission, to see that the truth emerges; and if it fails to do so, this court must not, in the name of deference or convenience, grant judicial enforcement to the agency's contrivances." Judge Rakoff criticized a settlement with no admission of wrongdoing, where Citigroup is charged only with negligence, and where the deal involves a civil penalty that is "pocket change" to Citigroup and imposes injunctive relief that Citigroup knew the "SEC had not sought to enforce against any financial institution for at least the last 10 years." "It is harder to discern from the limited information before the court what the SEC is getting from this settlement other than a quick headline," he said, adding that Citigroup might just see the money paid as the cost of doing business. Spokeswoman Danielle Romero-Apsilos said in a statement that Citigroup "respectfully disagrees" with the ruling. "We believe the proposed settlement is a fair and reasonable resolution to the SEC's allegation of negligence, which relates to a five-year-old transaction," she said. "We also believe the settlement fully complies with long-established legal standards. In the event the case is tried, we would present substantial factual and legal defenses to the charges." Robert Khuzami, director of the SEC's division of enforcement, said in a statement that the judge's criticism "disregards the fact that obtaining disgorgement, monetary penalties, and mandatory penalties and mandatory business reforms may significantly outweigh the absence of an admission when that relief is obtained promptly and without the risks, delay, and resources required at trial." These kind of settlements have been "repeatedly approved for good reason" by other federal courts, Mr. Khuzami said, including by Judge Rakoff's colleagues. In June, Southern District Judge Richard Berman approved the SEC's $153.6 million settlement with J.P. Morgan Securities in a case that contained nearly identical provisions to the Citigroup settlement and also dealt with an ill-fated CDO. And in July 2010, Judge Barbara Jones approved the SEC's $550 million deal with Goldman Sachs over its ABACUS CDO. Judge Rakoff had faulted the $285 million settlement, an amount he said the consent judgment "only suggests that the SEC 'may'" return to defrauded investors. It was an amount, he said, that "still leaves investors shortchanged." But in his statement, Mr. Khuzami said the securities laws generally limit the SEC to pursuing disgorgement for Citigroup's ill-gotten gains plus a penalty in an amount up to its gain, and he insisted the SEC had intended to deliver the entire $285 million to investors. "We will continue to review the court's ruling and take those steps that best serve the interests of investors," he said. Mark Hamblett can be contacted at mhamblett@alm.com. David Bario, a reporter at The American Lawyer, an affiliate publication, contributed to this report.
Friday, March 2, 2012
Federal Judge Files Ethics Complaint Against Federal Judge
Federal judge files complaint over his own e-mail message
American Law by Amanda Bronstad - March 1, 2012
Richard Cebull, chief judge of the U.S. District Court in Montana, has initiated a disciplinary investigation into his own behavior after acknowledging he sent a racist e-mail to friends and family about President Obama. "Chief District Judge Cebull has publicly acknowledged that he has acted inappropriately," said Cathy Catterson, circuit executive for the U.S. Court of Appeals for the 9th Circuit, in a prepared statement. "By letter to Chief Judge Alex Kozinski of the Ninth Circuit, Judge Cebull has initiated the process by which a complaint of judicial misconduct will be brought against him," she wrote. "Chief Judge Kozinski has informed the Judicial Council of the Ninth Circuit of the complaint. The Judicial Council is expected to act expeditiously in investigating and resolving this matter."
In filing a complaint himself on March 1, Cebull beat at least one organization to the punch. Earlier in the day, Common Cause spokeswoman Mary Boyle said that her organization planned to file a complaint with the 9th Circuit. "We're calling on him to resign," she said, adding that Common Cause sent copies of its statement to every member of Congress. "We think that Congress has a role here to say something, and if Congress is silent on this, they send a message that this kind of language or behavior will be tolerated by the federal judiciary." The watchdog group joined a growing chorus calling for Cebull's resignation. Cebull was nominated by President Bush in 2001 and has been chief judge of the District of Montana since 2008. Cebull sent the e-mail from his courthouse address on Feb. 20 to family members and friends. The subject line was: "A Mom's Memory." The text said: "A little boy said to his mother, ‘Mommy, how come I'm black and you're white?' His mother replied, ‘Don't even go there Barack! From what I can remember about that party, you're lucky you don't bark!" The e-mail was first reported on Feb. 29 by the Great Falls Tribune. Cebull apologized via the Tribune and The Billings Gazette, acknowledging that the e-mail was racist but insisting that he personally he is not. He said he passed along the joke because it was "anti-Obama." "There's no doubt it's racist," he told the Billings Gazette. "It wasn't forwarded for that purpose. If anything, it was political." Cebull did not return a call for comment. His apology did little to placate critics. "If he has any respect for his office and for ideals of equality and human dignity on which our country was founded, Judge Cebull will step down today," said Bob Edgar, president and chief executive officer of Common Cause, in a prepared statement. "The message he has acknowledged circulating demonstrates a lack of judicial temperament that ought to disqualify him from further service." U.S. Rep. Emanuel Cleaver, D-Mo., chairman of the Congressional Black Caucus, said in a written statement that an apology alone was unacceptable. Cleaver joined the heads of the Congressional Hispanic Caucus and the Congressional Asian Pacific American Caucus in condemning Cebull's behavior. Calling the e-mail "overt racism," U.S. Rep. Charles Gonzalez, D-Texas, chairman of the Hispanic caucus, said, "It would be appropriate for Chief Judge Cebull to ponder whether his continued service as a federal judge has been irreparably compromised and that another career may be more appropriate for someone with his views and temperament."
People for the American Way President Michael Keegan also weighed in: "Judge Cebull, by using his official e-mail account to promote racism, misogyny and disrespect for the office of President of the United States, has shown that he does not have the temperament necessary to fulfill his duties as judge. He should resign immediately." In petitioning for Cebull's resignation, the Montana Human Rights Network said on its Web site: "People of color and women appearing before Judge Cebull will have valid concerns about his ability to treat them fairly." Cebull faces potential disciplinary action ranging from a public reprimand to impeachment. "Once it gets to the judicial council, it has authority that really runs the gamut," said Dick Carelli, spokesman for the Administrative Office of the U.S. Courts. The council also could dismiss the complaint or decline to recommend disciplinary action, opting instead for admonishment or a public apology. In 2009, Kozinski himself was admonished, but not disciplined, in a similar proceeding by the 3d Circuit's judicial council, for having "sexually explicit photos" on his personal Web site. Kozinski had recommended his own investigation following public outrage, and apologized. A key issue for Cebull is whether, in sending the e-mail, he violated the federal codes of conduct. In calling for Cebull's resignation, Common Cause identified potential violations of Canon No. 2 and Canon No. 5. The first holds that a judge should avoid the appearance of impropriety, such as holding membership in an organization that "practices invidious discrimination on the basis of race, sex, religion, or national origin." Furthermore, "public manifestation by a judge of the judge's knowing approval of invidious discrimination on any basis gives the appearance of impropriety." "This is not the Supreme Court, but there's no place for political activity or political expressions by a federal judge," Boyle said. Canon No. 5 says that a judge should "refrain from political activity," defined as leading, making speeches to, or soliciting funds for a political organization or candidate. The canon also holds that "a judge should not engage in any other political activity." "This is a judge. Any judge should not be making political statements," Boyle said. "You shouldn't know what a judge thinks of Obama or what he doesn't think. A judge's role is to be impartial." The e-mail itself might not have violated Canon No. 5. "It's not political activity," said Steven Lubet, a legal ethics professor at Northwestern University School of Law. "Even if it were, there's no rule of private expression of political preference. The political activity means public political activity. We don't prohibit judges from having opinions and from time to time expressing them with his friends. The problem with this wasn't that it's political. It's vulgar and racially offensive." But Cebull may have dug himself deeper in a hole by characterizing the email as "anti-Obama," said Keith Swisher, a professor at Phoenix School of Law and author of the Judicial Ethics Forum blog. "Now he's publicly opposing a sitting president running for office, and that's problematic and rare that would happen," he said. Legal experts also noted that Cebull might have violated Canon No. 4. That rule states that a judge is limited to engaging in certain "extrajudicial activities." "Personal conduct, charity fundraising, business activities — that's considered extrajudicial conduct," said Cynthia Gray, director of the Center for Judicial Ethics at the American Judicature Society, but are permitted. However, activities that "detract from the dignity of the judge's office" or "reflect adversely on the judge's impartiality" are prohibited. Cebull might also run afoul of Canon No. 3, legal experts said; it holds that that a judge should "disqualify himself or herself in a proceeding in which the judge's impartiality might reasonably be questioned." "This will cause a problem for him and his court routinely," Swisher said. "He's jeopardized his ability to preside over a significant amount of cases." In a disciplinary investigation, Swisher said, the judicial council won't just look for violations of the federal code of conduct. "That matters, obviously, but they're also going to look at prejudice to other parties and the system of justice, whether it was repeated, what the judge's intent was behind the act, and how serious of a violation it was," he said. "The context is important here, too. He's not just the judge, but the chief judge. As the chief judge, he's also the administrative head in a sense, so you would want him to be a good example in that sense, as well." Contact Amanda Bronstad at abronstad@alm.com. Mike Scarcella in Washington contributed to this article.
American Law by Amanda Bronstad - March 1, 2012
Richard Cebull, chief judge of the U.S. District Court in Montana, has initiated a disciplinary investigation into his own behavior after acknowledging he sent a racist e-mail to friends and family about President Obama. "Chief District Judge Cebull has publicly acknowledged that he has acted inappropriately," said Cathy Catterson, circuit executive for the U.S. Court of Appeals for the 9th Circuit, in a prepared statement. "By letter to Chief Judge Alex Kozinski of the Ninth Circuit, Judge Cebull has initiated the process by which a complaint of judicial misconduct will be brought against him," she wrote. "Chief Judge Kozinski has informed the Judicial Council of the Ninth Circuit of the complaint. The Judicial Council is expected to act expeditiously in investigating and resolving this matter."
In filing a complaint himself on March 1, Cebull beat at least one organization to the punch. Earlier in the day, Common Cause spokeswoman Mary Boyle said that her organization planned to file a complaint with the 9th Circuit. "We're calling on him to resign," she said, adding that Common Cause sent copies of its statement to every member of Congress. "We think that Congress has a role here to say something, and if Congress is silent on this, they send a message that this kind of language or behavior will be tolerated by the federal judiciary." The watchdog group joined a growing chorus calling for Cebull's resignation. Cebull was nominated by President Bush in 2001 and has been chief judge of the District of Montana since 2008. Cebull sent the e-mail from his courthouse address on Feb. 20 to family members and friends. The subject line was: "A Mom's Memory." The text said: "A little boy said to his mother, ‘Mommy, how come I'm black and you're white?' His mother replied, ‘Don't even go there Barack! From what I can remember about that party, you're lucky you don't bark!" The e-mail was first reported on Feb. 29 by the Great Falls Tribune. Cebull apologized via the Tribune and The Billings Gazette, acknowledging that the e-mail was racist but insisting that he personally he is not. He said he passed along the joke because it was "anti-Obama." "There's no doubt it's racist," he told the Billings Gazette. "It wasn't forwarded for that purpose. If anything, it was political." Cebull did not return a call for comment. His apology did little to placate critics. "If he has any respect for his office and for ideals of equality and human dignity on which our country was founded, Judge Cebull will step down today," said Bob Edgar, president and chief executive officer of Common Cause, in a prepared statement. "The message he has acknowledged circulating demonstrates a lack of judicial temperament that ought to disqualify him from further service." U.S. Rep. Emanuel Cleaver, D-Mo., chairman of the Congressional Black Caucus, said in a written statement that an apology alone was unacceptable. Cleaver joined the heads of the Congressional Hispanic Caucus and the Congressional Asian Pacific American Caucus in condemning Cebull's behavior. Calling the e-mail "overt racism," U.S. Rep. Charles Gonzalez, D-Texas, chairman of the Hispanic caucus, said, "It would be appropriate for Chief Judge Cebull to ponder whether his continued service as a federal judge has been irreparably compromised and that another career may be more appropriate for someone with his views and temperament."
People for the American Way President Michael Keegan also weighed in: "Judge Cebull, by using his official e-mail account to promote racism, misogyny and disrespect for the office of President of the United States, has shown that he does not have the temperament necessary to fulfill his duties as judge. He should resign immediately." In petitioning for Cebull's resignation, the Montana Human Rights Network said on its Web site: "People of color and women appearing before Judge Cebull will have valid concerns about his ability to treat them fairly." Cebull faces potential disciplinary action ranging from a public reprimand to impeachment. "Once it gets to the judicial council, it has authority that really runs the gamut," said Dick Carelli, spokesman for the Administrative Office of the U.S. Courts. The council also could dismiss the complaint or decline to recommend disciplinary action, opting instead for admonishment or a public apology. In 2009, Kozinski himself was admonished, but not disciplined, in a similar proceeding by the 3d Circuit's judicial council, for having "sexually explicit photos" on his personal Web site. Kozinski had recommended his own investigation following public outrage, and apologized. A key issue for Cebull is whether, in sending the e-mail, he violated the federal codes of conduct. In calling for Cebull's resignation, Common Cause identified potential violations of Canon No. 2 and Canon No. 5. The first holds that a judge should avoid the appearance of impropriety, such as holding membership in an organization that "practices invidious discrimination on the basis of race, sex, religion, or national origin." Furthermore, "public manifestation by a judge of the judge's knowing approval of invidious discrimination on any basis gives the appearance of impropriety." "This is not the Supreme Court, but there's no place for political activity or political expressions by a federal judge," Boyle said. Canon No. 5 says that a judge should "refrain from political activity," defined as leading, making speeches to, or soliciting funds for a political organization or candidate. The canon also holds that "a judge should not engage in any other political activity." "This is a judge. Any judge should not be making political statements," Boyle said. "You shouldn't know what a judge thinks of Obama or what he doesn't think. A judge's role is to be impartial." The e-mail itself might not have violated Canon No. 5. "It's not political activity," said Steven Lubet, a legal ethics professor at Northwestern University School of Law. "Even if it were, there's no rule of private expression of political preference. The political activity means public political activity. We don't prohibit judges from having opinions and from time to time expressing them with his friends. The problem with this wasn't that it's political. It's vulgar and racially offensive." But Cebull may have dug himself deeper in a hole by characterizing the email as "anti-Obama," said Keith Swisher, a professor at Phoenix School of Law and author of the Judicial Ethics Forum blog. "Now he's publicly opposing a sitting president running for office, and that's problematic and rare that would happen," he said. Legal experts also noted that Cebull might have violated Canon No. 4. That rule states that a judge is limited to engaging in certain "extrajudicial activities." "Personal conduct, charity fundraising, business activities — that's considered extrajudicial conduct," said Cynthia Gray, director of the Center for Judicial Ethics at the American Judicature Society, but are permitted. However, activities that "detract from the dignity of the judge's office" or "reflect adversely on the judge's impartiality" are prohibited. Cebull might also run afoul of Canon No. 3, legal experts said; it holds that that a judge should "disqualify himself or herself in a proceeding in which the judge's impartiality might reasonably be questioned." "This will cause a problem for him and his court routinely," Swisher said. "He's jeopardized his ability to preside over a significant amount of cases." In a disciplinary investigation, Swisher said, the judicial council won't just look for violations of the federal code of conduct. "That matters, obviously, but they're also going to look at prejudice to other parties and the system of justice, whether it was repeated, what the judge's intent was behind the act, and how serious of a violation it was," he said. "The context is important here, too. He's not just the judge, but the chief judge. As the chief judge, he's also the administrative head in a sense, so you would want him to be a good example in that sense, as well." Contact Amanda Bronstad at abronstad@alm.com. Mike Scarcella in Washington contributed to this article.
Another New York Legal Embarrassment
Judges Would Wear Two Hats in Proposed Youth Court
The New York Law Journal by Jeff Storey - March 2, 2012
To the embarrassment of court officials and youth advocates, New York is one of only two states to set the age of criminal responsibility at 16. Now, momentum is building for a far-reaching change in the state's juvenile justice system, with an initiative by the courts joining a drumbeat of calls for reform.
As they crafted the 1962 act that created the Family Court, legislators discussed but could not reach agreement on whether to raise the age at which youths could be tried for crimes as adults. The lawmakers left the dividing line between juvenile delinquency and adult crime at 16, where it had stood since the late 19th century. But a legislative committee stressed that the decision was "tentative and subject to change" and urged that studies be done to reach a more permanent consensus. Fifty years later, New York state, to the embarrassment of court officials and youth advocates, is one of only two states to set the age of criminal responsibility at 16. Legislation has been introduced in the other—North Carolina—to raise the age to 18, although the measure apparently is stuck in committee. Of the other states, 37 and the District of Columbia set the age of criminal responsibility at 18, while 11 states use 17. Now, momentum is building for a far-reaching change in the state's juvenile justice system, with an initiative by the courts joining a drumbeat of calls for reform. Chief Judge Jonathan Lippman proposed in his State of the Judiciary message the creation of a new Youth Court that would apply what he calls a "Family Court approach" to offenses committed by 16- and 17-year-olds. A bill setting forth the details soon will be submitted to the Legislature. "This approach puts first and foremost an emphasis on rehabilitation for adolescents, rather than incarceration," the chief judge said in his message. "The present punitive approach turns children into hardened criminals and must be changed if we are to ensure a meaningful future for kids who find themselves in the throes of the justice system." Judge Lippman's proposal has been widely praised. However, the costs of achieving his goals has raised some initial concern. Stephen Acquario, executive director of the New York State Association of Counties, said he agrees with Judge Lippman that "the status quo is not acceptable. It's not helping anybody." But Mr. Acquario said he worries about the impact the new court would have on county probation departments and other agencies. "We must be realistic," he said. "This will require resources." New York City, which has more than half of the new court's potential caseload, has similar concerns about how to marshal services essential to a proposal it wants to succeed. "The city is working with Judge Lippman on a fresh approach for non-violent cases involving 16- and 17-year-olds that will increase access to services in a way that doesn't break the bank or strain already stretched resources," John Feinblatt, chief policy adviser to Mayor Michael Bloomberg, said in a statement.
Judges With Two Hats
In a September speech before the Citizens Crime Commission of New York City, Judge Lippman suggested that the cases of 16- and 17-year-olds go through Family Court, which is "equipped to intervene meaningfully" in young people's lives "before their troubles escalate into more serious criminality." He pointed out that the Family Court's "whole culture and guiding philosophy" is "to focus on the problems that are specific to children and young people." Ironically, however, Judge Lippman's new initiative would not be part of Family Court. Rather, specially trained judges in Supreme and County Court, so-called "superior" courts, would preside over the Youth Court—an unusual hybrid that would deploy what the idea's supporters say is the best of adult and family courts. Judge Lippman's plan would take a big step toward what reformers failed to accomplish 50 years ago. It would raise the age of criminal responsibility to 18 from 16 for youths who commit non-violent crimes—largely minor drug crimes and property offenses such as larceny, car theft and vandalism.
The cases of youths aged 7 through 15 who commit the same less serious offenses would remain in Family Court. Meanwhile, adolescents who commit violent felonies would remain in adult courts. Also, boys and girls as young as 13 who commit particularly heinous crimes such as murder would still be tried in adult superior courts, often in existing "youth parts" where convicted defendants face mandated lengthy sentences.
Arrests of 16- and 17-year-olds totaled 46,147 in 2010, 75 percent of them misdemeanors. All misdemeanor arrests would be moved to the Youth Court from the New York City Criminal Court, District Courts and town and village courts.
Of the remaining felony cases—about 25 percent of total adolescent arrests—37.3 are violent felonies and other serious crimes and would be excluded from the Youth Court.
Overall, the Youth Court-eligible caseload would have totaled 23,652 in the city and 17,981 in the state's 57 upstate counties if the court had been operating in 2010.
Keeping violent teens out of the new court will ease the concerns some people may have about its impact on public safety, said Richard M. Aborn, president of the Citizens Crime Commission, which has been campaigning for juvenile justice reform. "We drew a line that had not been drawn before," he said.
Many cases would not make it into court at all. Probation departments could, with the consent of victims, "adjust" the case of a 16- or 17-year-old and dismiss charges after a 120-day reporting period if the youth complies with whatever conditions the probation department imposes and completes whatever programs it prescribes. That option is currently available for younger offenders facing Family Court action but not for adolescents prosecuted as adults. Cases that are not adjusted would proceed to arraignment and adjudication in the superior courts. Since those courts are governed by the Criminal Procedure Law, adolescent defendants would retain rights, including bail and trial by jury, that are not available in Family Court. Once a verdict has been reached, the Youth Court judge would don her Family Court hat. She would have the discretion to craft the "least restrictive" available disposition consistent with "the needs and best interests" of the youths and the "need for the protection of the community"—a more lenient standard than that for adults under the Penal Law. Moreover, Judge Lippman has pledged that enhanced services and community programs that provide alternatives to incarceration, hallmarks of Family Court but less used in adult court, would be offered to adolescents. Finally, offenders' dispositions would be sealed to ensure that youths would not, in Judge Lippman's words, "be haunted for the rest of their lives" by a criminal record that stands in the way of education and employment. The court system already has assigned 15 judges to pilot adolescent diversion parts where they work closely with prosecutors and defense attorneys, probation officials, service providers and police (NYLJ, Feb. 2). Judge Lippman said in his message that the goals of the pilot courts are to demonstrate that his approach "makes sense and is a vast improvement over the existing system" and to serve as "a valuable testing ground" for techniques that could be used in the projected Youth Court. But he said in an interview that the courts' current structure limits what the state can do without changes in the law, and the pilot courts do not have the broad range of options that would be offered in the Youth Court. (The court system has not yet determined how many judges would work in the Youth Court and how many would be full time.)
Stress on Family Court
The outline of Judge Lippman's Youth Court emerged from months of study by the courts' Permanent Commission on Sentencing chaired by Acting Supreme Court Justice Barry Kamins and Manhattan District Attorney Cyrus Vance Jr. The commission and Judge Lippman decided early on that Family Court, already stressed by a large and difficult caseload, was not the right forum for thousands of additional troubled kids. Statewide, Family Court received only 12,142 original juvenile delinquency cases in 2010, less than one-third the number of older offenders who would be eligible for the Youth Court. Its youth-crime caseload would double or triple with the assignment of 16- and 17-year-olds to the court, although the exact increase would depend on the cases adjusted or diverted from the court system. The 16- and 17-year-olds "belong in Family Court," said Judge Edwina Richardson-Mendelson, administrative judge of the city Family Court, but she added that they could "not easily be accommodated" under current conditions. An influx of adolescent cases "would cripple the system," said Brooklyn Family Court Judge Stewart Weinstein. "That would not be justice for anybody." Judge Lippman said that his ultimate goal remains to shift the cases of adolescents to Family Court. He said that he has "complete confidence" in the ability of Family Court judges to effectively intervene with adolescents as they do with younger children. But for now, he said, "we're not going to let a decade of kids go down the drain" while officials marshal the resources—additional judges, support personnel and courtrooms—to do the job in Family Court. Right now, officials are focusing on the Youth Courts because they can be set up relatively quickly. However, while the general shape of the new court has been resolved, some issues remain to be addressed in the implementing legislation. One major sticking point is where to confine youths who would not benefit from the alternatives to incarceration. State and federal law prohibits the mixing of juveniles and adults in prisons and jails. But Judge Lippman and others have been sharply critical of the facilities where the state now confines juvenile delinquents.
Wide Support
The announcement of Judge Lippman's initiative was greeted as "a historic day for New York kids" by Michael A. Corriero, a former judge who presided over the cases of juvenile offenders (See Q&A on page 5 of the print edition of the Law Journal). Mr. Corriero is the founder and executive director of the not-for-profit New York Center for Juvenile Justice, which has advocated for a lower age of responsibility and worked closely with officials on plans for the new court. Mr. Corriero pointed out that support for juvenile justice reform has grown as juvenile crime has plummeted from the levels that encouraged harsh state measures in the 1980s and '90s. Moreover, studies of brain development and behavior have shown that adolescents should not be treated like 25- or 30-year-olds. "Science tells me they are kids," said Judge Lippman, a conclusion that he says will come as no surprise to parents of teenagers. The studies say that adolescents are immature, reckless, influenced by peers, and frequently ignorant of the consequences of their own actions. Moreover, Judge Lippman and others argue, since their characters have not been fully formed, they can benefit from the intervention and rehabilitation the Youth Court would offer. Justice Kamins said that many judges are enthusiastic about what they believe is a practical solution—a "uniquely New York solution"—to the problem of youth crime.
Acting Supreme Court Justice Anthony Ferrara in Manhattan said that the chief judge's plan offers "tremendous benefits" to children and the state if it is backed by sufficient resources. Justice Ferrara is presiding over a pilot adolescent diversion part with a caseload of subway turnstile jumping, petit larceny and marijuana possession. He said such adolescents have been rushed through the system with little attention being paid to their underlying problems or how to keep them from returning with more serious offenses. The pilot court, which meets one afternoon a week, gives the judge an opportunity to "talk to them about the mistakes they've made and why they've made them." Most adolescent defendants still will receive an adjournment in contemplation of dismissal, but Justice Ferrara maintains control long enough to "make an impression." And before their cases are closed, the adolescents will participate in programs ordered by the Midtown Community Court that give them "a sense of worth and responsibility," such as volunteering in a soup kitchen or teaching younger kids about bicycle safety. Mr. Vance, who is the president-elect of the New York State District Attorneys Association, said that the sentencing commission he co-chairs developed a "sensible" model "based on human experience and logic" offering "better outcomes" for adolescents caught in the criminal justice system. Prosecutors "know and understand that 16- and 17-year-olds cannot be treated in the same way as 25-year-olds," said Westchester District Attorney Janet DiFiore, the current president of the district attorneys association, adding that 94 percent of dispositions involving adolescents already are sealed. Ms. DiFiore said that members of her association are anxious to see the details of Judge Lippman's proposal. Providing "resources on the back end of these cases is very important," she said. Stephen Banks, attorney in chief of the Legal Aid Society, called Judge Lippman's proposal "a critically important initiative." The forum in which adolescents' cases are handled—adult or Family Court—is not as important as that judges have the authority to address their issues, he added. Bronx Family Court Judge Monica Drinane, a former attorney in charge of Legal Aid's juvenile rights practice, said that raising the age of responsibility is the "right goal. There are a lot of good evidence-based studies that show these are kids. We can't differentiate on the basis of age or size." She said she is "absolutely confident" that the new court "can be imbued with the spirit of Family Court."
Obstacles to Passage
Nevertheless, despite early across-the-board support for Judge Lippman's program, court officials recognize that the initiative could flounder in Albany if it is shown to be significantly more costly than the current arrangement. "We think it would be cost-neutral," Judge Lippman said. Court administrators observe that the youths who would be affected are already in the system, and argue that establishment of the Youth Court would simply be a matter of rearranging existing resources. "While costs may shift slightly overall, the plan's cost-effectiveness stems from the increase in adjustments and fewer cases entering the system, coupled with a decreased reliance on expensive incarcerations that, in many instances, serve no useful purpose for adolescents accused of low-level offenses," Judge Lippman said in his message. Officials say that a "great majority" of misdemeanor offenders could be "adjusted" out of the system, although they have no firm estimates. One clue might be found in the number of juvenile arrests that are adjusted now. Last year, New York City's Probation Department opened 4,669 cases for adjustment, 39 percent of juvenile delinquency matters referred to it. Some 89 percent successfully completed the supervision period. Judge Lippman acknowledged in his message that probation departments might experience additional costs from added adjustment cases. Rocco Pozzi, the Westchester County probation commissioner and a supporter of the new court, estimates that he would have to double the number of officers to 12 from six who screen and supervise the adjustment cases. And adolescents who are sentenced to probation after going through the court probably would require more intense supervision by probation officers with fewer cases, he added. "The philosophy is sound," said Mr. Pozzi. "It makes sense. It's just going to take a while." Judge Lippman predicts that any added probation spending would be canceled out by a reduction in assigned counsel expenses and other savings. He also is confident that services would become available for the 16- and 17-year-olds who enter the Youth Court. He said in an interview that the system already has developed a "patchwork" of programs for young offenders, and existing programs can be expanded to handle the added cases. "A lot of folks will be intrigued by [Judge Lippman's] idea. Service providers will run to be part of it," agreed Bill Baccaglini, executive director of the not-for-profit New York Foundling, which recently received a foundation grant to serve approximately 60 adolescent offenders. Judge Lippman said in his September speech that alternatives "do require an up front investment, and we will have to convince budget officials and legislators that the long-term benefits and savings will greatly outweigh initial costs." Mr. Baccaglini said that programs operated by his agency for juvenile delinquents cost $12,000 to $13,000 a year. The tab for incarceration is about $200,000. Whatever the obstacles to the new court, Judge Lippman expresses a sense of urgency. "This has been studied enough," he said. "We need to act. We're wasting kids' lives." Jeff Storey can be reached at jstorey@alm.com.
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