Indicted Federal Judge Will Continue Working

Indicted federal judge Kent will continue working
The Associated Press - Aug. 30, 2008

HOUSTON — U.S. District Judge Samuel Kent plans to keep hearing court cases while facing prosecution on charges he fondled a former court employee, according to the chief judge for the Southern District of Texas. "The only way he doesn't receive cases is if he's no longer a judge," U.S. District Judge Hayden Head Jr. said in Saturday editions of the Houston Chronicle. Following a Department of Justice investigation, a federal grand jury on Thursday indicted Kent on two counts of abusive sexual contact and one count of attempted aggravated sexual abuse. His attorney, Dick DeGuerin, has said Kent is innocent. Kent has been ordered to appear before U.S. Circuit Judge Edward C. Prado on Wednesday. DeGuerin said that, by agreement, Kent will be released without bond on his own recognizance. Kent, a federal judge for 18 years, is not planning to take the day off, according to the newspaper. "The choice is his," said U.S. District Judge Lynn Hughes, one of Kent's colleagues in Houston. "After all, he's (presumed) innocent. That's how we work around here." The indictment came after a Justice Department investigation of Kent that began in November.

The investigation was prompted after Kent's former case manager, Cathy McBroom, accused the judge of repeatedly harassing her over a four-year period. McBroom has said the harassment culminated in a March 2007 incident in Kent's Galveston court chambers, where the judge allegedly pulled up her blouse and bra and tried to escalate contact before being interrupted. DeGuerin, Kent's attorney, has said that everything that happened between Kent and McBroom was consensual. McBroom's allegations were first investigated by the Judicial Council of the 5th U.S. Circuit Court of Appeals, which reprimanded Kent in September 2007. The council gave no details about the allegations, only saying a complaint alleging sexual harassment had been filed against Kent. The council ordered the judge to go on leave for four months. Kent still collected his $165,000 annual salary. McBroom was transferred to Houston, located 50 miles northwest of Galveston, after reporting her allegations. Kent, as part of his punishment by the judicial council, also was relocated to Houston.

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Ex-Judge's Defense Team Accuses Feds of Misconduct

Ex-Judge's Defense Team Accuses Feds of Misconduct
New York Lawyer by Janet L. Conley - August 29, 2008

ATLANTA - Alleging "outrageous government misconduct" — including a sting in which federal agents gave marijuana to an ex-con, arranged his arrest and allegedly told him to try to bribe his way out of trouble — attorneys for a former South Georgia judge and his wife have filed two motions that could shake up a series of federal indictments claiming corruption in the Alapaha Judicial Circuit. The motions seek to disqualify federal prosecutors and dismiss federal indictments against Berrien L. Sutton, a former State Court and Juvenile Court judge in Clinch County, and his wife, Lisa Sutton, the administrator of the Alapaha Circuit.

The Suttons have been accused of honest services fraud via allegations that they took money from state taxpayers because they were overpaid for government jobs. Berrien Sutton resigned from his judgeship to avoid facing charges from the state Judicial Qualifications Commission. At least 11 people have been indicted in the federal court for the Middle District of Georgia on charges relating to alleged corruption in the Alapaha Circuit, a five-county region near the Florida state line. The key defendant is Brooks E. Blitch III, former chief judge of the Alapaha Circuit, who was the target of the sting operation involving the fake marijuana defendant. Most of the indictments of other court and law enforcement personnel were drawn from federal wiretaps of Blitch's chambers in the Clinch County Courthouse.

In their motions, filed this month, the Suttons' lawyers, Thomas A. Withers of Gillen, Withers & Lake in Savannah and Charles E. Cox Jr. of Macon don't just focus on allegations of prosecutorial wrongdoing involving their own clients. They allege prosecutorial misconduct against defendants in seven related cases as well. One of those cases involves Blitch. "The breadth of the government's misconduct demonstrates that the Suttons are a casualty of the government's blind, myopic pursuit of Judge Blitch," Withers and Cox write. Middle District U.S. Attorney Maxwell Wood did not return a call seeking comment. A spokeswoman for Wood's office said both Wood and his first assistant U.S. attorney, George F. "Pete" Peterman III, were traveling and would be unavailable until next week.

Arrest and attempted bribery

The Suttons' motion to dismiss alleges that the FBI investigated Blitch, once a friend and colleague of Berrien Sutton's, for years but failed to uncover any criminal activity. In 2006, the motion adds, the government "schemed to manufacture criminal charges against Judge Blitch." According to the motion, the government recruited a convicted felon named Eddie (called Eddy in other documents) Tucker in an attempt to entrap Blitch. "FBI agents gave Tucker five pounds of marijuana, $3,600 in taxpayer money, a recording device, a vehicle rented with taxpayer money and instructed Tucker to travel to Homerville, Georgia, where the agents had arranged to have him arrested," the motion says. The motion says that after Tucker was arrested by state authorities and released on bond, FBI agents gave Tucker some gold coins and told him to visit Blitch and ask for help in selling the coins.

Blitch is known to be an avid coin-collector; at his first appearance for his charges last month, a federal prosecutor said he was considered a flight risk because he had a $1 million collection that could easily be liquidated. "The agents hoped that Judge Blitch would arrange for a more lenient sentence for Tucker in exchange for the gold coins," the motion says. "However, Judge Blitch merely assisted Tucker in the sale of some of the coins and did not fall into the agents' bribery trap." Though the motion offers no further details, an Aug. 8 hearing transcript in a related indictment, the one against Clinch County Sheriff Winston Peterson, appears to confirm at least the allegation that the undercover operation existed.

In that transcript, two assistant U.S. attorneys in the Middle District, Leah McEwen and James Crane, refer to an "undercover operation" involving Tucker. One of the attorneys talks about that operation and the coins in the context of a discussion of several bribery allegations against Blitch. A call seeking comment from McEwen and Crane, placed to the spokeswoman for the U.S. Attorney's Office, was not returned by press time. Blitch's attorney, Robert S. Willis of Willis, Ferebee & Hutton in Jacksonville, Fla., noted that no bribery charges had been filed against his client.

He confirmed that Tucker was part of a sting aimed at Blitch. "I can't say it was an attempt to bribe; it was an attempt to tempt" Blitch that, Willis said, was "wholly unsuccessful." In a Thursday interview, Cathy Helm, the district attorney in the Alapaha Circuit, confirmed Tucker's arrest and indictment. She said she had no idea he was working undercover, and that her office was preparing to prosecute him when federal authorities informed them he was part of a sting. "When we were informed of that, we immediately dismissed the indictment," she said.

Tainting all cases?

The Suttons' lawyers note that much of the alleged wrongdoing by prosecutors occurred in related cases but cite the 1988 U.S. Supreme Court case of Bank of Nova Scotia v. United States, 487 U.S. 250, to support their use of those related-case allegations to seek dismissal of the Suttons' indictments. "The Supreme Court has recognized that, regardless of any prejudice to a defendant at trial, an indictment could be subject to dismissal if it was the product of 'a history of prosecutorial misconduct, spanning several cases, that is so systematic and pervasive as to raise a substantial and serious question about the fundamental fairness of the process which resulted in the indictment,'" the Suttons' attorneys write.

They go on to cite a string of cases indicating that dismissal of an indictment is warranted if the government's investigatory conduct is "so outrageous" that it violated "fundamental fairness" and was "shocking to the universal sense of justice." If Chief Judge Hugh Lawson of the Middle District of Georgia does not dismiss the indictments, the Suttons' lawyers ask, alternatively, for discovery of the alleged misconduct, which they say occurred before a grand jury, and for release of the grand jury transcripts.

Specific to the Suttons, defense lawyers Withers and Cox allege, among other things, that the government told Berrien Sutton that if he helped with their investigation it would offer him immunity, then failed to do so. They also allege that an FBI raid on Sutton's law office resulted in the seizure of confidential communications, including some between Sutton and his counsel. Much of the motion, however, focuses on alleged wrongs the government committed in other cases related to the Suttons'.

For example, the motion alleges that prosecutors attempted to set a perjury trap for Timothy Eidson, the Cordele Circuit's chief public defender, who was acquitted last week of charges involving false statements and obstruction of justice related to the government's investigation of Blitch. Other allegations include the government's alleged failure to inform five defendants — Clinch County Sheriff Peterson, former Clinch County Court Clerk Danny Lecesse, former Clinch County Magistrate Judge Linda Peterson and private attorneys George McCranie and Robert Sumner — when they testified before the grand jury that they were targets of the grand jury's investigation. The motion also alleges that the Petersons, who are in-laws, and Lecesse were not informed of their Fifth Amendment privilege against self-incrimination.

Citing the U.S. Attorneys' Manual, the motion says, "It is the policy of the Department of Justice to advise a grand jury witness of his other rights if such a witness is a 'target' or 'subject' of a grand jury investigation." According to the motion, prosecutors' actions show a "pattern of misconduct" and a "pattern of deceit" that the government undertook in a "calculated fashion." The Suttons' defense team caps their argument by expounding on the duty of prosecutors to do justice before they convict someone. Citing a U.S. Supreme Court case, they attempt to outline a prosecutor's appropriate role: "While he may strike hard blows," they write, "he is not at liberty to strike foul ones."

Conflict of interest?

Nor, according to the defense team, is a prosecutor at liberty to engage in conflicts of interest—especially when those conflicts may involve a financial interest. In a separate motion to disqualify the Middle District U.S. Attorney's Office, filed Aug. 21, the Suttons' lawyers argue that the office has "direct conflicts of interest" that affected their prosecutorial decision making.

Their allegations relate specifically to AUSA Donald L. Johstono Jr., who earlier this year threw his hat in the ring for the Alapaha Circuit Superior Court judgeship Blitch vacated, like Berrien Sutton, in order to avoid an ethics prosecution by the Judicial Qualifications Commission. According to the motion, after Blitch announced that he'd leave the bench, Johstono "promptly developed a scheme whereby he would succeed Judge Blitch, despite the fact that AUSA Johstono was not a resident of the Alapaha Circuit and resided over 125 miles away." The problem, according to the motion, is that Johstono is currently prosecuting a forfeiture action against a house in Atkinson County owned by the Suttons.

Federal prosecutors, the defense team alleges, are prohibited by the Ethics in Government Act from representing the government in any matter in which they have an interest. Johstono had a "direct financial interest in the position of Superior Court Judge for the Alapaha Judicial Circuit, of which his office was no doubt aware and approved," according to the motion. Johstono "has made a naked attempt to gain a position made possible as a result of his Office's investigation and prosecution of this matter," the motion alleges.

"Whether through his own motives or as part of an insidious and highly unorthodox and improper attempt by the U.S. Attorney's Office to literally infiltrate the Alapaha Judicial Circuit, AUSA Johstono's actions are—at minimum—heavily suspect." Johstono did not return a call seeking comment. That conduct violated federal law and skirted the Georgia Rules of Professional Conduct, and casts doubt on the impartiality of the proceeding, according to the motion. It goes on, "The circumstances present the inherent danger that the United States' Attorney's Office might have been more interested, or could reasonably be perceived as being more interested, in securing Judge Blitch's seat with one of its own instead of securing justice."

The cases are U.S. v. Berrien Sutton and U.S. v. Lisa Sutton, 5:08-cr-40 (M.D. Ga.).

Federal District Court Judge Indicted

Federal Judge Indicted on Sex Abuse Charges
New York Lawyer - August 29, 2008
By The Associated Press

A Texas federal judge accused of sexual harassment by his former case manager was indicted Thursday on charges of abusive sexual contact and attempted aggravated sexual abuse, the U.S. Attorney's Office said. A federal grand jury indicted U.S. District Judge Samuel Kent on two counts of abusive sexual contact and one count of attempted aggravated sexual abuse. "He's angry and ready for a fight. He is innocent. We will try this case. It is nothing but a false accusation," said Dick DeGuerin, Kent's attorney. The indictment alleges the criminal conduct happened March 23, 2007, and Aug. 29, 2003, Acting Assistant Attorney General Matthew Friedrich announced in a news release. The Houston Chronicle first reported the indictment on its Web site Thursday. An agreement with prosecutors will allow Kent to surrender Wednesday for an initial court appearance. A federal criminal investigation began in November 2007 after the former case manager, Cathy McBroom, complained about Kent. She said the judge physically touched her under her clothing twice and and often made obscene suggestions during the six years she worked for him.

DeGuerin has called any alleged sexual contact between Kent and McBroom "enthusiastically consensual." "After a very difficult 17 months, I feel like I have finally been validated. I have listened and read with horror as Judge Kent's lawyer suggested that what happened to me was 'enthusiastically consensual,'" McBroom said in a statement sent to the Chronicle. "I am relieved to find that even federal judges are not above the law, and that sexual abuse in the workplace is never acceptable, no matter the status of the offender." Kent received a reprimand for sexual harassment and "inappropriate behavior" from the judicial council of the 5th Circuit over a judicial misconduct complaint filed by McBroom. He was reassigned from Galveston to Houston.

CLICK HERE TO SEE UPDATED INFORMATION: August 31, 2008: "Indicted Federal Judge Will Continue Working"

When Squeezed, They Squeal

DOJ Seeks Reduced Sentence For Abramoff In D.C. Corruption Case - Aug 27, 2008

(The Politico) Federal prosecutors are seeking a reduced sentence for imprisoned GOP lobbyist Jack Abramoff in a Washington, D.C., corruption case, citing his his "significant and useful" cooperation against other individuals involved in the scandal that brought down the one-time K Street superstar. Prosecutors are seeking only a 64-month sentence for Abramoff in the D.C. corruption case, far less than the minimum 108 months behind bars he could have received under federal sentencing guidelines. Abramoff, who is already serving a 70-month prison term in a Florida fraud case, is scheduled to be sentenced Sept. 4 in the D.C. case.

The Washington Post is reporting that Abramoff "would serve no more than another three years and three months in prison, not accounting for credit for good behavior awarded by the Bureau of Prisons," meaning he could be out by late 2011, and possibly a year earlier if Abramoff's attorneys are successful in winning furhter reductions. Abramoff's assistance to DOJ and FBI investigstors "has exposed significant misconduct by others in and out of public office and revealed to law enforcement officials and the public the manner and means used by government officials to game the system for private advantage in violation of criminal, regulatory, and ethical laws and rules," prosecutors said in a pre-sentencing memo filed today. According to Abramoff's attorney. their client has spent more than 3,000 hours meeting with more than 100 federal investigators.

The reduced sentence for Abramoff "is appropriate given Abramoff’s extraordinary cooperation to date, cooperation which can be wholly or partially credited for the convictions of a member of Congress, five high-level legislative branch officials, one high-level executive branch official, and two other mid- to low-level public officials, as well as ongoing matters," prosecutors wrote. This list includes: former Rep. Bob Ney (R-Ohio); Tony Rudy, a one-time top aide to former House Majority Leader Tom DeLay (R-Texas); Neil Volz, Ney's former chief of staff and former lobbyist at Abramoff's firm; Will Heaton, another former Ney aide; and J. Steven Griles, former deputy secretary of the Interior Dept. The government also recommended that Abramoff's tax penalties be reduced by more than $1 million, citing errors in the original calculation of what Abramoff owed in 2001 and 2002. Abramoff's lead lawyer, Abbe Lowell, filed a 590-page memo seeking additional reductions, citing the trauma suffered by Abramoff's wife and children since he was incarcerate nearly 20 months ago.

NY Courts Audit Reveals $14 Million Discrepancy

NY Courts Audit Reveals $14 Million Discrepancy
by The New York Lawyer and The Associated Press - August 27, 2008

New York City finance officials are promising to keep better track of money collected from bail, foreclosures and other court-ordered payments after state auditors found records were off by $14 million. State Comptroller Thomas DiNapoli said in an audit released yesterday that one court-related bank account was nearly $11 million short of the amount in city ledgers. Another account had about $3 million more than the records showed. The city Department of Finance said citizens got all the money they were due. The agency blames the accounting errors on a decades-old computer system, set to be replaced by January. While it said no one has been denied money to which they are entitled, the agency is working to untangle the discrepancies by next month. That may prove laborious: Mr. DiNapoli said some records are handwritten court receipts.

Here's the Report from Comptroller Thomas P. DiNapoli:

OFFICE OF THE NEW YORK STATE COMPTROLLER, DIVISION OF STATE GOVERNMENT ACCOUNTABILITY - NEW YORK CITY DEPARTMENT OF FINANCE
ACCOUNTABILITY OVER COURT, TRUST AND BAIL FUNDS - Report 2007-N-8

AUDIT OBJECTIVE

Our objective was to determine whether the New York City Department of Finance (Finance) adequately assured that it maintained an accurate accounting for court, trust and bail funds.

AUDIT RESULTS - SUMMARY

The New York City courts collect bail paid on behalf of defendants, payments pursuant to court orders, funds from estates controlled by public administrators and other miscellaneous revenue. These monies must be forwarded to the City’s Department of Finance (Finance) for deposit and safekeeping. According to the New York City Charter, Finance must maintain separate ledger accounts whenever court, trust or bail transactions are received, and must keep an accurate accounting of all such funds. As of December 31, 2006, Finance’s Statement of Condition indicated that court and trust funds totaled $273.7 million and bail funds totaled $50.6 million.

Finance is able to reconcile the totals on the Statement of Condition with the corresponding amounts on deposit with banks. However, the separate ledgers for the court funds showed a total of $284.5 million as of December 31, 2006; a discrepancy of $10.8 million that has not been reconciled with the amount shown on the Statement of Condition for this date. In addition, the separate ledger for the bail funds showed a total of $47.3 million as of December 31, 2006; a discrepancy of $3.3 million that has not been reconciled with the amount shown on the Statement of Condition as of this date. Because the amount of funds reflected in the supporting separate ledgers substantially disagrees with the amount shown on the Statement of Condition (and the amount on deposit), we conclude that Finance lacks adequate assurances that it has an accurate accounting over court and trust and bail funds.

Finance officials state that they have not been successful in reconciling these differences and believe the differences are due to errors in the accounting system that processes the detailed transactions. They state that the accounting system is out of date and a new system is required, but funds are not available for a new system.

We made three recommendations to improve accountability over funds including monitoring the existing discrepancies during a monthly reconciliation between the separate ledgers and the Statement of Condition to ensure that any changes to the unresolved discrepancy amounts are identified and explained. In addition, Finance will need to formulate a long term strategy for handling the existing discrepancies and for transitioning to an updated integrated accounting system.

Finance officials agree with the report’s recommendations and state that plans are underway to replace the antiquated system with a new system by January 1, 2009.

This report, dated August 26, 2008, is available on our website at: http://www.osc.state.ny.us. Add or update your mailing list address by contacting us at: (518) 474-3271 or Office of the State Comptroller, Division of State Government Accountability, 110 State Street, 11th Floor, Albany, NY 12236

BACKGROUND

Section 2601 of the Civil Practice Law and Rules requires that all monies paid into the New York City courts be forwarded to the City’s Department of Finance (Finance).

These monies include bail postings made on behalf of defendants, payments made pursuant to court orders, trust funds from estates controlled by Public Administrators (such estates have no known heirs or no heirs able or willing to administer the estates), and other miscellaneous funds. Payments made pursuant to court orders commonly involve landlord/tenant disputes and surplus monies from foreclosures.

Finance receives these monies from various City courts, New York City Public Administrators, the New York City Department of Correction (bail funds), and other City agencies. In accordance with Section 1504.3c(iii) of Chapter 58 of the New York City Charter, Finance must open and maintain separate ledger accounts whenever court, trust or bail funds are received, and keep an exact accounting of all such funds.

Finance’s Client Services Unit (CSU) is responsible for the monies and maintains a computerized accounting ledger for these court, trust and bail funds. According to Finance’s Statement of Condition (financial statement), as of March 31, 2007, the court and trust funds totaled $281.2 million and the bail funds totaled $52.8 million. (Other miscellaneous funds of $4.1 million are also included on the Statement of Condition but were not subject to our review.)

AUDIT FINDINGS AND RECOMMENDATIONS

Accounting for Funds

We found that Finance routinely reconciles the amount of funds showed on the Statement of Condition with the amount of funds on deposit. However, we conclude that Finance lacks adequate assurances that it has an accurate accountability on court, trust and bail funds because Finance cannot reconcile the amounts in the separate ledger accounts for the court, trust and bail funds with the amounts on deposit with the bank.

For example, on December 31, 2006, the Statement of Condition indicated that the court funds on deposit totaled $273.7 million, while the detailed accounting records calculated by the mainframe system totaled $284.5 million, a discrepancy of about $10.8 million. Similarly, on that same date, the Statement of Condition for bail funds indicated a balance of $50.6 million, on deposit while the detailed accounting records calculated by the mainframe system totaled $47.3 million, a discrepancy of about $3.3 million.

A Finance official explained that Finance does not perform a reconciliation to resolve the discrepancies because the mainframe system used to calculate the individual ledger accounts is an antiquated mainframe computer system that is unreliable and inaccurate. Officials also stated that Finance was exploring the option of a new system which would provide individual account balances and a recording of transactions at the various collection points. However, Finance officials stated that agency resources did not permit the development of a new system at this time.

We agree that a new system is needed. However, we conclude that the following steps should also be taken:

• Monitor the existing discrepancies to ensure they do not substantially change. If a substantial change is noted, immediately investigate it to isolate and correct the problem.

• Explore the acquisition of a simpler system similar to what a bank uses to keep the bank balances in line with the detailed ledger account balances.

• Develop a strategy for resolving the existing discrepancies before converting to a new system.

Recommendations

1. Implement an updated integrated computer system that maintains individual account balances for court, trust and bail funds, and fully and accurately accounts for the funds.

2. Monitor existing discrepancies to ensure they do not substantially change. If a substantial change is noted, immediately investigate it to isolate and correct the problem.

3. Develop a strategy for resolving the existing discrepancies before conversion to a new system.

AUDIT SCOPE AND METHODOLOGY

We conducted our audit in accordance with generally accepted government auditing standards. We audited Finance’s controls over court, trust and bail funds for the period January 1, 2003 through August 31, 2007. To accomplish our objective, we interviewed Finance officials and reviewed New York City and New York State laws, rules and regulations related to the operations of the New York City Department of Finance. We also reviewed selected account files, records and related documentation maintained by Finance.

As is our practice, we notified agency officials at the outset of the audit that we request a representation letter in which agency management provides assurances, to the best of their knowledge, concerning the relevance, accuracy and competence of the evidence provided to the auditors during the course of the audit. The representation letter is intended to confirm oral representations made to the auditors and to reduce the likelihood of misunderstandings. In the representation letter, agency officials assert that, to the best of their knowledge, all relevant financial and programmatic records and related data have been provided to the auditors. Agency officials further affirm that either the agency has complied with all laws, rules, and regulations applicable to its operations that would have a significant effect on the operating practices being audited, or that any exceptions have been disclosed to the auditors. However, officials at the New York City Mayor’s Office of Operations have informed us that, as a matter of policy, mayoral agency officials do not provide representation letters in connection with our audits. As a result, we lack assurance from agency officials that all relevant information was provided to us during the audit.

In addition to being the State Auditor, the Comptroller performs certain other constitutionally and statutorily mandated duties as the chief fiscal officer of New York State. These include operating the State’s accounting system; preparing the State’s financial statements; and approving State contracts, refunds, and other payments. In addition, the Comptroller appoints members to certain boards, commissions and public authorities, some of whom have minority voting rights. These duties may be considered management functions for purposes of evaluating organizational independence under generally accepted government auditing standards. In our opinion, these functions do not affect our ability to conduct independent audits of program performance.

AUTHORITY

The audit was performed pursuant to the State Comptroller’s authority under Article V, Section 1 of the State Constitution and Section 33 of the General Municipal Law.

REPORTING REQUIREMENTS

A copy of this report, in draft, was sent to Finance officials for their review and comments. Their comments were considered in preparing this report.

Finance officials agree with the report’s recommendations and state that plans are underway to replace the antiquated system with a new system by January 1, 2009. Within 90 days after final release of this report, we request that the Commissioner of the New York City Department of Finance report to the State Comptroller advising what steps were taken to implement the recommendations contained herein, and where recommendations were not implemented, the reasons why.

CONTRIBUTORS TO THE REPORT

Major contributors to this report are Kenneth Shulman, Sheila Jones, Harry Maher, Brenda Maynard, Natalie Sherman and Dana Newhouse.

APPENDIX A - AUDITEE RESPONSE

Novel Administrative Judge Babbling: No Recollection

WPCNR WHITE PLAINS LAW JOURNAL. By John F. Bailey. August 25, 2008: New York Supreme Court Judge Francis Nicolai told WPCNR he did not “recollect” writing the key word “overnight” into the margin of the court order spelling out how Hockley District Leader Candidates’ attorney Jay Boyarsky was to deliver a show cause order to ten persons of Hockley District Leader challenger petitions August 4.

Judge Nicolai does not remember how the “overnight” found its way onto the court order spelling out how the Hockley attorney was to respond to the Board of Elections denial of 10 Hockley petitioners. Nicolai, asked by WPCNR why he wrote overnight into the margin, which according to the Hockley/Garfunkel attorney said “To my recollection I did not write (“overnight”), somebody in the administration court system must have added it,” he said. The "overnight" word in the margin was key in creating the situation resulting in the removal of ten supporters perhaps sympathetic to Glen Hockley from the September 9 District Leader Democratic Primary contests for district leader in White Plains.

What does Overnight Mean? As a result of that scrawled word in the margin, the Hockley team sent their show cause papers overnight mail on August 4, with the arguments with arriving to the “respondent-objectors” on August 5. When they did arrive the attorney for the Board of Elections on asked Judge Nicolai to dismiss the case for missing the show cause deadline.

Nicolai explained that the Hockley District Leader action had to commence on the third day following the Board of Elections denial of the 10 petitions. The petitions were denied by the Board of Elections on August 30, Judge Nicolai said, that meant Mr. Boyarsky had Thursday, July 31, Friday, August 1st, the two days on the weekend not counting), the August 4 to produce his show cause papers. Another interesting aspect of the Court Order shows that the original date penciled in actually reads “5th” of August, but has been crossed out and replaced with number “4th” and the significant “overnight” word placed in the margin, above it is initials that Mr. Boyarsky, the Hockley attorney, believes are Judge Nicolai’s. Mr. Boyarsky told WPCNR that Nancy, a clerk for Judge Nicolai took the court order from the eighth floor of the courthouse to the ninth floor to Judge Nicolai to sign, and when they came back the words “Overnight,” and above it were the initials he believed to be “FAN/JSC” were written in the margin. Judge Nicolai was mystified, he asked WPCNR wasn’t it in the typed portion, when told it was not, that the “overnight” word was written, the judge said he did not recollect writing that word in.

Boyarsky told WPCNR if he had not seen the “overnight” word, he would have had the show cause paper work delivered to the 10 individuals (Objectors)protesting by hand on August 4, as he had delivered the show cause papers to the Board of Elections as instructed, complying with the order August 4. He said it is not standard legal practice to call up the Judge and ask do you really mean “overnight.” “The judge tells you what to do, you don’t question it,” Boyarsky said, “This was just bizarreness.” A costly note. The effect, though, of the “overnight” word, was to create the impression on the part of Mr. Hockley’s attorney, Boyarsky that the papers could be overnighted to objectors August the 4th for arrival August 5. On August 5, before Judge Nicolai, the Board of Elections attorney pointed out that the Hockley show cause papers were not served on the other 10 objectors on August 4 as the court order stated. Judge Nicolai then told Boyarsky, “I have no choice but to dismiss, even if it’s inequitable.”

Asked why Boyarsky did not send the papers overnight using Saturday delivery, Boyarsky said he did not think he needed to since the word overnight was in the margin with the judge’s initials, but said he did not ask the law clerk delivering the court order what exactly “overnight” meant. The attorney Elizabeth Schollenberger (for the challengers of the Hockley 10) called Boyarsky at 11 P.M. the night before the argument on her dismissal motion was due (9 A.M. August 7). Boyarsky considered this harassment on Ms. Schollenberger’s part, because he said Judge Nicolai had given Boyarsky until 9 AM on the 7th. "This may backfire," Boyarksy said. "These 10 people challenging the district leader seats might have run with not that much interest in the position, but now that they see they’ve been disenfranchised it may make them take more interest in the Democratic Party.”

Change as the Kaye Reign Ends

Though Often Unanimous, Independent Voices Emerge
The New York Law Journal by Joel Stashenko - August 25, 2008

ALBANY - The state Court of Appeals continued its trend toward agreeing to disagree more often in its 2007-08 session, a term in which the judges completed the process of invalidating all death sentences imposed under the 1995 capital punishment law. While most of the Court's rulings were unanimous, there were 29 dissents in the session between September 2007 and July 2008. That pushed the total rulings with dissenting opinions to 162 over the past five sessions of the Court. In the previous five terms, from 1998-99 to 2002-03, the judges dissented just 69 times. Legal observers and practitioners familiar with the Court agree that the unanimity it sought under former Chief Judge Sol Wachtler and during the first half of Judith S. Kaye's tenure as chief judge is long gone, having given way to a Court whose members are more intent on airing their opinions.

Brooklyn Law School Professor William E. Hellerstein said Chief Judge Kaye "doesn't like disagreements" and would prefer her Court to speak with one voice more often. "She likes people to be on the same page," Mr. Hellerstein said in an interview. "I think that hasn't happened as much as she has liked." Judge Robert S. Smith, for example, has written 37 dissents since being selected to the Court by then-Governor George Pataki in late 2003, a period in which Chief Judge Kaye has only penned nine dissenting opinions. In the last session alone, Judge Smith wrote nine dissents and joined an unsigned dissent in which Judges Smith, Susan Phillips Read and Eugene F. Pigott Jr. referred to a lower-court decision as the basis for their objection to the majority opinion. With the confirmation of Judge Read in 2003, Pataki appointees gained a majority on the Court over those appointed by then-Governor Mario Cuomo. Over her five sessions on the Court, Judge Read has written 28 dissents.

"It is clear that by the time Robert Smith got to the Court, you had a number of judges who were not part of that Kaye tradition [of unanimity] and they tend to be more ornery," said Albany Law School Professor Vincent Bonventre, who compiled the dissent figures. "If you read a Susan Read decision or a Robert Smith decision, they are a little more ornery. They are not uncivil. But they don't mind taking shots at what the Court is doing." Judge Smith, in particular, continued to keep Court observers guessing in the 2007-08 term, as he has in many of his rulings since joining the bench in early 2004. In October, he was in the 4-3 majority in People v. Taylor, 9 NY3d 129, the case in which the Court invalidated the seventh and last death sentence against a defendant under the capital punishment statute adopted in 1995. The ruling relied on stare decisis and the majority's belief that crafting a constitutional statute is the job of the Legislature, not the courts. Judge Smith joined the majority in Taylor despite having dissented from the Court's 2004 ruling in People v. LaValle, 3 NY3d 88, the case that effectively rendered the death penalty statute unconstitutional because of defects in sentencing procedures that could coerce jurors into voting for death.

But in another major criminal case in the last term, People v. Hall, 10 NY3d 303, Judge Smith sided with the police in holding that he did not believe a search warrant was necessary in order for authorities to recover from the body cavity of a suspect an object they were able to identify visually. A 4-3 majority of the Court held in March that a warrant had to be secured, absent exigent circumstances. "Robert Smith is sort of a wild card in the sense he marches to his own drummer," said one defense attorney. "On a criminal case, I like him on the panel. I definitely get the sense he will vote the correct way. He is not bound by the tradition of what they've done in the past. He is like a free spirit." Mr. Hellerstein called Judge Smith, who is usually the most inquisitive of the judges during oral arguments, a "lawyer's judge" who reminds him of Hugh R. Jones, a Court of Appeals' judge from 1973 to 1984. "Hugh Jones to me was the ultimate lawyer's judge," Mr. Hellerstein said. "You couldn't predict how he was going to go, but the questioning was always very much tied to the fine points, the record. I see that in Smith."

Mr. Bonventre said the dissents open a window, however narrow, into the thinking of individual judges as well as highlighting philosophical allies on the Court. Chief Judge Kaye and Judge Carmen Beauchamp Ciparick are usually joined in dissent, for instance, while Judge Victoria A. Graffeo is apt to join Judge Read when the two disagree with the majority. Judge Smith has gotten Judge Pigott to join him in many of his dissents. "The only time you can really tell where these judges are coming from are in the cases where somebody is willing to dissent," said Mr. Bonventre, a former clerk to the Court. "From a researcher's standpoint, I certainly like an abundance of cases where the Court is divided because it helps me figure out the judges."

Unanimous Rulings

Despite the tendency of the Court to differ more in writing than in other recent eras, the judges ruled unanimously in 85 percent of the cases in the 2007-08 session, including in several other high-profile matters. In October, the Court unanimously ordered that Joel B. Steinberg must get a new trial on two causes of civil action brought by the biological mother of the girl he was accused of killing in a domestic abuse case in the 1980s. The judges held in Launders v. Steinberg, 9 NY3d 930, that the two claims were improperly sustained by a Supreme Court justice in 1989.

In June, the judges were also unanimous in People ex rel. Spitzer v. Grasso, 2008 WL 2595833, that state law precluded the state attorney general from pursuing four common-law claims against former New York Stock Exchange Chairman and CEO Richard Grasso's $187.5 million compensation package from the exchange. Soon afterward, the Appellate Division, First Department, threw out the two remaining claims against Mr. Grasso, effectively ending the challenge against his compensation package started by then Attorney General Eliot Spitzer. In April, the Court held in a series of cases, including People v. Sparber, 10 NY3d 457, that mandatory periods of post-release supervision must be pronounced in open court by a judge at sentencing, not after the fact by court clerks or the Department of Correctional Services. That has led to the review of the sentencing records of hundreds of inmates and parolees and, so far, the release from state prison of 335 inmates who had been incarcerated for violating the terms of improperly imposed post-release supervision periods, according to a state prison spokesman. "The post-release supervision cases have to be among the most significant cases of this term or any term in terms of the Court making it clear that New Yorkers have a right to be sentenced by the court and not have non-judicial personnel or agencies alter the terms," said Steven Banks, attorney-in-chief of the Legal Aid Society. "I think that certainly is a principle that is applicable beyond the individual case, given the imbalance of power when someone is accused of a crime and facing the whole weight of the government."

1858 Precedent Overturned

In its 2007-08 session the Court also:

• Abandoned in a December ruling one of the Court's oldest precedents by deciding that a jury with fewer than 12 members can return a valid verdict in a criminal trial (People v. Gajadhar, 9 NY3d 880). The Court set aside a precedent established in Cancemi v. People, 18 NY 128, a case it decided in 1858, or only 10 years after the inception of the Court itself. In dissent, Chief Judge Kaye and Judge Ciparick opined that Cancemi "remains good law."

• Recognized in February that commercial property owners can recover "consequential" damages from insurers in excess of the stated value of policies where the terms of the policies were breached (Bi-Economy Market Inc. v. Harleysville Insurance Company of New York, 10 NY3d 187, and Panasia Estates Inc. v. Hudson Insurance Company, 10 NY3d 300).

• Ruled in December that courts hearing appeals of the denial of records under the Freedom of Information Law must put the burden on government entities to justify their refusal to turn over information and not on the requesting parties to show why they should get the data (In the Matter of Data Tree, LLC v. Romaine, 9 NY3d 453).

• Held in December that the state's long-arm statute does not apply to a Saudi businessman who secured a libel judgment in London against a New York author who wrote that he had ties to al-Qaeda. (Ehrenfeld v. Mahfouz, 9 NY3d 501). In April, the Legislature approved and Governor David A. Paterson signed a bill allowing New York judges to declare unenforceable libel judgments won by plaintiffs in foreign countries where First Amendment protections are weaker than in the United States.

• Found in April that building owners are liable for workers' injuries under the so-called Scaffold Law even when they are unaware that work was being performed on their properties and the jobs were in violation of tenant's leases (Sanatass v. Consolidated Investing Company, 10 NY3d 333).

• Decided in November that the act of standing still on a busy Times Square sidewalk, without "something more" in terms of misbehavior, is not enough to sustain a disorderly conduct charge against a man (People v. Jones, 9 NY3d 259).

• Found that plaintiffs in medical malpractice cases can be compelled to provide an authorization to permit a treating physician to grant defense counsels ex parte interviews. The treating physicians would not be required to submit to the interviews under the November ruling in Arons v. Jutkowitz, 9 NY3d 393.

• Ruled in June that small amounts of marijuana are not "dangerous contraband" when held by state prison inmates and that possession is not a felony (People v. Finley and People v. Salters, 10 NY3d 647).

• Decided in February that at-will workers with no future guarantee of employment do not have a fraudulent-inducement claim because their employer, the Dreyfus Corporation, failed to tell them their jobs might be imperiled by a pending merger (Smalley v. The Dreyfus Corporation, 10 NY3d 852).

• Defined, for the first time, that a "permanent and severe facial disfigurement" for purposes of the state Workers' Compensation Law is one that a "reasonable person" would find "abhorrently distressing, highly objectionable, shocking or extremely unsightly" in Fleming v. Graham, 10 NY3d 296.

Judicial Discipline

The Court also continued its track record of generally backing the Commission on Judicial Conduct on appeals of commission determinations disciplining judges. In June, the Court upheld the recommended removal of Niagara Falls City Court Judge Robert M. Restaino for sending 46 defendants to jail because none of them would admit they owned the cell phone that went off in his courtroom in March 2005. Judge Restaino contended that he suffered an isolated meltdown because of personal problems and an extremely heavy caseload. The Court, which received 10 amici curiae briefs supporting Judge Restaino and opposing his removal, found that while Judge Restaino was well-respected in his community, his behavior had irrevocably harmed the public's confidence in his ability to be a judge. The Court's ruling in In re Restaino, 10 NY3d 577, represented the 64th time the judges had affirmed a removal recommendation by the Judicial Conduct commission. The New York Law Journal's annual Court of Appeals Year in Review will be published on Sept. 2.   Joel.Stashenko@incisivemedia.com

Carvel Background of a Sweet Surrogate Court Scam

Meltdown of an ice cream fortune
Forbes Magazine 1998

SCENE: A SMALL courtroom on the eighth floor of a bland, pink-granite office building on the unfashionable fringes of downtown White Plains, N.Y., late April. A dozen of the lawyers contesting the estate of the ice cream magnate Thomas Carvel have gathered before Judge Albert J. Emanuelli of the Westchester surrogates court. They have just concluded two months of all-day depositions in the latest, but far from last, phase of a case which, in the way that life imitates art, could have come straight from the pages of Charles Dickens' Bleak House, wherein the matter of Jarndyce v. Jarndyce supported generations of lawyers. "I came here in 1991, and this case is still being litigated," the judge told the assembled attorneys. "Seven years of litigation. I think it's tragic." What could have been a $200 million estate has dwindled to about $60 million. Carvel wanted his money to benefit his frail widow and local charities. But the largest recipients of that money so far have been the lawyers. What happened to Carvel happens all the time in messy probate court proceedings that go on for years, leave heirs embittered and make only the lawyers better off. It is simply happening on a grander scale in Carvel's case.

Carvel died childless at the age of 84 in October 1990. He left behind most of the $80 million proceeds from selling his namesake ice cream chain the year before, plus real estate, including a golf course in upstate New York and an unknown number of plots on which the 800 Carvel franchisees have their kiosks. You'd think that real estate would be pretty hard to misplace, but the deeds -- held through corporations whose ownership is in dispute -- are up in the air, along with almost everything else about the estate. Just before Carvel's death, says Richard King, a longtime friend, "he told me he was making more from real estate than ice cream." The total fortune could have been worth as much as $200 million. Where's the money? It may never be found, if it ever existed. But never mind the real estate. If Carvel had done nothing but hand over the business to a charitable foundation, and if the foundation had put proceeds from the sale in an index fund, it would have close to $250 million now. But the Thomas and Agnes Carvel Foundation has but $12 million, and has managed to distribute less than $6 million to charitable purposes since Carvel died. The widow isn't doing particularly well, either. Although she was supposed to receive the income from her husband's fortune, she hasn't seen a penny from this part of the estate (although she is getting payments from some Carvel trusts). What did Tom Carvel do wrong? He violated five basic rules of estate planning.

Rule 1: Find a trustworthy executor. You can't be casual about choosing someone who is going to have control of your life's savings. A relative is an obvious choice. But what if you are dividing your estate among three relatives? Picking one as arbiter is a recipe for unfairness, resentment or even litigation. Naming a spouse as executor is plausible, especially if the spouse is the sole heir. But not if the spouse is too frail or distraught to be effective. A family friend? He or she might not have the time, and estates can take an enormous amount of time. A law firm or bank? It would be honest and disinterested -- but expensive ($30,000 and up for a $1 million estate). Carvel's solution to this problem may have been one of the worst in the history of estate administration. He had no fewer than seven executors -- and they fought like cats. One was his widow, Agnes, now 89. She has suffered a heart attack and several strokes and has fled to London. She stepped down in the face of demands by other participants in this affair for an in-court examination for mental competency. Another executor was a judge, Anthony Cerrato, who has since died. Another was a niece, Pamela Carvel, who lives with Agnes. The surrogates court suspended Pamela after she made $2 million in questionable deposits into Swiss bank accounts on, she says, Agnes' behalf.

Then there were two of Tom Carvel's business associates: his long- time (since 1952) and powerful secretary, Mildred Arcadipane (see box, p. 216), and his lawyer, Robert Davis. Arcadipane and Davis have been forced to resign from trusteeships on the board of the Thomas and Agnes Carvel Foundation following charges by the New York Attorney General's office of enriching themselves and their friends at the foundation's expense. (Among other things, the A.G. accused them of using foundation money to pay college tuitions for friends and a relative, and of orchestrating a $4 million sham stock transaction involving the foundation's shares in Carvel Corp.) Betty Godley, Agnes' niece, one of the two remaining executors of the estate as well as a trustee on a Florida trust holding $9 million of Agnes' money, has accused Pamela of blocking all communications with her favorite aunt. Pamela responds, in an interview, that Agnes believes Godley is a "thief" who wants Agnes declared incompetent. We couldn't get Agnes' opinion; the widow isn't participating in the court proceedings, either, and her lawyers say that a deposition could kill her. Find a trustworthy executor? Tom Carvel didn't come close.

Rule 2. Anticipate conflicts. If the heirs don't get along, don't give them anything to fight about. Carvel spent a lot of his very successful business career arbitrating disputes. He didn't stop to think how hard it would be to settle these disputes when he was gone. Nor did he give much thought to the conflicts between his associates' roles as fiduciaries and their roles as heirs. Pending, alongside the sordid Carvel case in the Westchester surrogates court, is a garden-variety estate involving an all-too-common kind of dispute. Two daughters have spent two years fighting over their mother's antique tea table. The piece is worth either $30,000 or $900,000, depending on whether you talk to the daughter who wants to sell her half or the one who wants to buy. Estates don't have to go on like this. If you have a family with some unsettled scores, get an outside arbiter. Let the executor auction off the tea table.

Rule 3. Keep it simple. Carvel's probate case involves six entities that we know of: the foundation, the Florida trust for Agnes, the charitable remainder trust, two real estate holding companies and the estate. He didn't need to make it so complicated. His needs were simple: Set aside enough for his widow to live comfortably and leave the rest to charity. He could have accomplished all this very cleanly by purchasing an annuity for Agnes from an insurance company and leaving the whole estate to charity. The Carvel will is a monster, including small bequests to 83 different beneficiaries, most of them loyal employees. He'd have done better to write out bonus checks when he sold the company.

Rule 4. Get your papers in order. Comedian W.C. Fields made a mess for his executor by squirreling sums into scores of bank accounts across the country. Don't play this trick on your heirs. After you write your will, write out a ledger of your assets and your insurance policies, including account numbers, phone numbers and addresses where relevant. Put it where your heirs will find it. And make sure they can find the will. Sign duplicate copies, leaving one with your law firm and one in a safe deposit box controlled by a trustworthy person. Carvel was sloppy with paperwork. He shifted funds and ownership of various accounts and corporations and he often did it haphazardly, ignoring details like signing documents or filing them. He would move money from accounts held jointly with his wife into a corporation, or, in one contentious case, allegedly have her sell her shares in a subsidiary but then have her listed not long afterwards as an owner. He kept everything straight when he was alive, but when he died there was no one to determine how the cards should be played. What about the will? Arcadipane testified she had sole access to a locked file cabinet where Carvel's will had been filed, yet it nonetheless disappeared. A document shredder in the Carvel office was uncommonly busy in the months after the entrepreneur's death. During that period, a blizzard of transactions occurred. Lost-will proceedings, costing perhaps $100,000, concluded in February 1991, just days before a signed will was mysteriously discovered in a box at Carvel and Arcadipane's office.

Rule 5. Don't be a control freak. You might get away with micromanaging the affairs of your spouse and your business associates while you are alive. "The greatest danger to an estate is managing it from the grave," says Arthur Richenthal, a New York lawyer involved in estate cases for half a century. "Nobody can anticipate changes in circumstances and relationships." Write your deadbeat son out of your will, if that's the right thing to do, but don't lather conditions and contingencies onto the will. It just gives the heirs more things to fight over. Carvel was a controlling type. It probably did him good as an ice cream vendor. When a trailer he used to transport ice cream between county fairs broke down in Hartsdale, N.Y., he opened his first store out of the back of the truck on a site that continues as a Carvel store to this day. He then vertically integrated, first by producing ice cream machines, then by adding everything from recipes to preassembled stores. He fought a costly, but ultimately successful, ten-year battle against the Federal Trade Commission to have the sole right to supply every facet of Carvel stores, from mixes to napkins. Franchisees couldn't begin work until attending Carvel's "college" for three months of intensive training. The core lesson was do it the Carvel way, or go away. He sold the company, to a group of Middle Eastern investors who also bought Saks Fifth Avenue, only when ill health forced his hand. Thomas Kornacki, a Carvel employee for the past 22 years, explains how his late boss came up with the army of competing executors: "Tom Carvel always had somebody checking the checkers. When he was alive, he could always settle the inevitable disputes by dictating a resolution.  Just do it his way. A court can't settle anything instantly like that."

Forbes Magazine Article "Meltdown of an ice cream fortune"

FBI Moving in on Big City Corruption

FBI investigates Oakland City Hall for corruption
The Associated Press - August 23, 2008

OAKLAND, Calif.—Oakland city officials say they are ready to cooperate with federal authorities investigating allegations of corruption at City Hall. The FBI has requested city documents as part of its probe of alleged nepotism and fraud under former City Administrator Deborah Edgerly. Mayor Ron Dellums fired Edgerly in July amid a police probe into whether she had interfered with an investigation into a violent street gang. City officials say the federal investigation seems to be expanding into questionable payroll practices, including $3 million in bonuses and other perks awarded with little oversight. Court documents show that authorities are also scrutinizing personnel records for Edgerly and her son and daughter—all of whom were city employees.

NY Times Editorial: For Judgeships in New York City

For Judgeships in New York City
The New York Times - EDITORIAL - August 23, 2008

Races for judgeships rarely get the full attention they deserve. But New York City’s courts need the most dedicated and capable jurists. Luckily, there are a few good candidates — and not so luckily some real clunkers — running in New York City’s Sept. 9 primary. Here are our recommendations in three of those matchups.

SURROGATE’S COURT, MANHATTAN This obscure but unusually powerful court oversees wills, estates and adoptions — and is badly in need of change. The retirement of Renee Roth after 25 years as one of the borough’s two Surrogate’s Court judges is an opportunity to improve the court’s reputation. Ms. Roth will leave behind a legacy of unconscionable delays in deciding cases, imperious behavior and a tendency to use her office to reward cronies and further her personal interests. Voters need to decide which of the three candidates vying to succeed her — Milton Tingling, John Reddy Jr. and Nora Anderson — has the independence and know-how to work effectively with Manhattan’s second, reform-minded Surrogate’s Court judge, Kristin Booth Glen, to transform the court.

Mr. Tingling, an affable but undistinguished state Supreme Court justice, seems least up to the task. Mr. Reddy, Ms. Roth’s handpicked counsel to the office charged with handling estates of those who die without wills, has an appealing manner and is plainly capable. But his ties to Ms. Roth and tolerance for the old-style, back-scratching culture make us doubt he would be an aggressive agent of change. Our endorsement goes to Nora Anderson, an experienced trust and estates lawyer and former chief clerk in the Surrogate’s Court. Her decision to accept a large campaign loan from a mentor — a prominent trust and estates attorney — gives us pause. But we take seriously her pledge that he will not appear before her and believe, over all, that she offers the best hope of positive reform.

CIVIL COURT, MANHATTAN In this race for a countywide seat, we favor Nancy Bannon over Michael Katz. Both currently serve as law clerks in State Supreme Court. Both are able and committed to making the legal system more accessible for less-wealthy litigants. But Ms. Bannon’s thoughtful manner and depth of legal experience give her the edge.

CIVIL COURT, THE BRONX The standout in this race is Elizabeth Taylor, a well-regarded law clerk to a state Supreme Court justice and founder of the Thurgood Marshall Junior Mock Trial Program, which introduces city high school students to legal advocacy. She is a much stronger candidate than her competitors: Maria Matos, another law clerk; and Verena Powell, a former assistant district attorney now in private practice. We enthusiastically endorse Ms. Taylor.

Libeled Judge Who Won $3.4 Million Leaves Bench

Judge Who Won $3.4 Million After Being Libeled by Reporter Gives Up Bench
The Associated Press by Denise Lavoie - August 21, 2008

BOSTON (AP) — A judge who sent threatening letters to the Boston Herald's publisher after winning a $2 million libel award will not work as a judge again in Massachusetts, under a court order announced Wednesday. Judge Ernest Murphy and the state Commission on Judicial Conduct have agreed Murphy is "permanently disabled" from performing his judicial duties and that he would step down, according to the order from the state Supreme Judicia Court, Murphy has said the libel case with the Herald took a severe physical and emotional toll on him, and that he suffers from post-traumatic stress.

The case began in 2002, after the Herald published a series of stories depicting Murphy as soft on crime. Several quoted Murphy as saying a young rape victim should "Get over it." Murphy denied making the comment. He sued the Herald, and in 2005, a jury found the newspaper had libeled him and awarded him $2 million. The agreement announced Wednesday came after the Commission on Judicial Conduct initiated a complaint against Murphy in October, alleging that he "suffers from physical and/or mental disabilities that affect his performance." The complaint and most of the documents related to it were sealed by the court because they contain personal medical information about Murphy.

Murphy's attorney, Michael Mone, said he was prohibited from commenting on the agreement. Thomas Butters, another attorney who represented Murphy, did not immediately return a call seeking comment. Howard Neff, a staff attorney for the commission, would not comment on details of the complaint, but said the court accepted the agreement and "ordered that Judge Murphy shall not sit again as a judge in Massachusetts." Separately, the Supreme Judicial Court is still weighing whether to impose on Murphy the commission's recommendation for a 30-day suspension without pay, $25,000 fine and public censure for using court letterhead to write a threatening letter to the Herald's publisher, Patrick Purcell.

Under the agreement announced Wednesday, Murphy will continue to receive his judicial pay for up to four months. During that period, he must use any accrued vacation and sick time. But the court rejected Murphy's request that he remain on paid administrative leave until he retires or the governor grants him a disability pension. The court noted that it does not make decisions about pensions. Murphy could seek a disability pension through the governor or the state retirement board. A spokeswoman for the newspaper, Gwen Gage, declined comment citing the ongoing case before the SJC.

Two days after he won the libel award from the Herald, Murphy sent the publisher a letter telling him to bring a check for $3.26 million to a private meeting. A separate single-page postscript warned Purcell that showing anyone the letter would be "a BIG mistake." In the second letter, Murphy told Purcell he had "ZERO chance" of reversing the jury's verdict on appeal. Murphy said he wrote the letters in an attempt to persuade the Herald not to appeal the jury's verdict. Last year, the Herald paid Murphy $3.4 million, including $1.4 million in interest.

NY Lawyer Blasted for "Hijacking" Client's Case for His Own Cause

NY Lawyer Blasted for "Hijacking" Client's Case for His Own Cause
The New York Law Journal by Mark Hamblett - August 21, 2008

NEW YORK - An attorney who used his pro bono representation of a woman in a state eviction proceeding to attack the Roman Catholic Church for clergy sexual abuse and the federal government for its response to Hurricane Katrina has been hit with heavy sanctions. Northern District Judge Gary Sharpe blasted attorney John A. Aretakis in a 46-page opinion Monday that cited the lawyer for "scurrilous" claims and "monstrous" allegations in his representation of Tina Zlotnick, who was relocated to church-owned property in the Albany area after being evacuated in the wake of Katrina. Judge Sharpe ordered Mr. Aretakis, of Albany and Manhattan, to pay a total of $16,678 in attorney's fees to his adversaries and gave him a strict warning to avoid all sanctionable conduct in the future. "There was nothing in the assignment and nothing in Ms. Zlotnick's legal dilemma that should have caused Mr. Aretakis to hijack her litigation for his own personal reasons," Judge Sharpe said in Zlotnick v. Hubbard, 07-CV-405.

Judge Sharpe issued several rulings. He refused to reconsider a 2007 ruling in which he ordered the attorney to pay the church's reasonable attorney's fees. He also imposed additional sanctions in the form of paying the attorney's fees of the federal government. Finally, Judge Sharpe refused to recuse himself from the case, although he conceded that an earlier statement made by him to the effect that three-quarters of Mr. Aretakis' complaint in the eviction matter dealt with sexual abuse was "inaccurate." "Furthermore, this decision serves as a written warning that the court will not tolerate sanctionable conduct by Mr. Aretakis in any future litigation before this court," the judge said, adding that he was forwarding a copy of the decision to Northern District Chief Judge Norman Mordue for consideration of possible disciplinary measures. Judge Sharpe set the church's reasonable attorney's fees at $14,310 and awarded $2,368 to the federal government. Mr. Aretakis vowed to appeal to the U.S. Court of Appeals for the Second Circuit, saying Judge Sharpe's decision was an attempt to "chill" his free speech.

"Our country was founded on principles involving freedom of speech and the opportunity to criticize public officials," he said. "This decision should be read in its entirety by every lawyer or citizen who cherishes these fundamental rights. It is a historical fact that over the decades that politicians, law enforcement and the courts have helped the Catholic Church avoid our criminal and civil courts and responsibility for their priests having sex with our children." Mr. Aretakis added, "In my opinion, this judge is attempting to punish me and attack my credibility for my extensive efforts as one of two lawyers in the state of New York who have effectively exposed these issues." When Ms. Zlotnick was displaced in 2005 from her New Orleans home by Katrina, a charitable group helped move her to her native New York, and Catholic Charities offered her temporary lodging in a church-owned building in Watervliet, outside Albany. But in January 2007, the church informed Ms. Zlotnick that it was selling the building and she would have to move. When she refused and the church initiated eviction proceedings, Mr. Aretakis was asked by the Albany County Bar Association's pro bono program to represent her.

Multiple Defendants

Mr. Aretakis filed a diversity action in federal court for breach of contract, fraud, detrimental reliance, intentional infliction of emotional distress, breach of fiduciary duty and unjust enrichment. He named as defendants the Albany archdiocese, Bishop Howard Hubbard and various nonprofit agencies, as well as the federal government and its Federal Emergency Management Agency. Judge Sharpe dismissed the federal case for lack of diversity jurisdiction after the church argued that Ms. Zlotnick was a resident of New York.

According to Judge Sharpe, Mr. Aretakis used the lawsuit to launch broadsides against the Catholic Church for its handling of the priest sex abuse scandals. The judge said Mr. Aretakis had ranged far afield from the eviction case. The attorney claimed officials of the archdiocese had generated local media interviews highlighting the plight of Ms. Zlotnick to raise money from donors and speculated that the church had used the money to defend itself in the sex abuse scandals. Mr. Aretakis also raised a possible conspiracy between the church and the Federal Emergency Management Agency, alleging that the church enriched itself with inflated housing subsidies paid out by the agency. According to a transcript from a hearing on possible sanctions last Sept. 6, Judge Sharpe gave the attorney "60 seconds" to explain his basis for dragging the agency into the lawsuit. When Mr. Aretakis said it was "general public knowledge" that the U.S. government had wasted a lot of money in the aftermath of Katrina, Judge Sharpe had had enough.

"Congratulations. Why don't you run for the Senate or President of the United States and do something about it?" the judge said. He also took note that Mr. Aretakis, who has represented alleged clergy abuse victims in the past, has been fined by other courts and had several ethics complaints filed against him. Mr. Aretakis was fined $8,000 last year by Southern District Judge Paul Crotty for bringing "scurrilous" charges against the Archdiocese of New York and Cardinal Edward Egan. That sanctions decision was upheld this year in a summary order by the Second Circuit. Michael L. Costello of Tobin and Dempf, who represented the church, filed a motion for sanctions in May 2007. That was followed by the Sept. 6 sanctions hearing. In his complaint, Mr. Aretakis also had targeted Mr. Costello for his role in defending the church.

'Absolutely Improper'

In his sanctions decision issued Monday, Judge Sharpe said there is no good faith legal or factual basis for suing the federal government. "[I]t is absolutely improper for a trained lawyer to file a bogus federal law suit in an effort to vent about his personal dissatisfaction with government," Judge Sharpe said. "As for the Church defendants," the judge said, "the court has already recited the scurrilous allegations concerning sex abuse, the identification of specific priests as sexual predators, and other sundry allegations that have absolutely nothing to do with this lawsuit, including an ad hominem attack on defense counsel." Ken Goldfarb, a spokesman for the Roman Catholic Diocese of Albany, said the diocese was pleased with the decision. "This just reaffirms the position we have held all along in dealing with this attorney," he said.

Puerto Rico Governor Indicted

Federal Bureau of Investigation
FOR IMMEDIATE RELEASE - AUGUST 19, 2008
WWW.USDOJ.GOV - (202) 514-2007

PUERTO RICO GOVERNOR, SENIOR AIDE AND FORMER CAMPAIGN DIRECTOR INDICTED ON WIRE FRAUD AND MONEY LAUNDERING CHARGES

WASHINGTON - A federal grand jury in San Juan, Puerto Rico, today returned an indictment against Puerto Rico Governor Aníbal Acevedo Vilá, a senior aide and a former campaign director for wire fraud and conspiracy to commit money laundering, Acting Assistant Attorney General Matthew Friedrich of the Criminal Division and U.S. Attorney for the District of Puerto Rico Rosa Emilia Rodríguez-Vélez announced. Today's indictment follows an earlier indictment, returned on March 24, 2008, which charged these same defendants and others with related crimes.

The five-count indictment returned today in U.S. District Court in Puerto Rico, charges Acevedo Vilá, 46, of San Juan; Luisa Inclán Bird, 47, of Guaynabo, Puerto Rico; and Miguel Nazario Franco, 61, of San Juan with honest services wire fraud and conspiracy to commit money laundering. Acevedo Vilá was Puerto Rico's Resident Commissioner in the U.S. House of Representatives between 2001 and 2005, and has been the Governor of Puerto Rico since 2005. Inclán Bird, a lawyer, was a legal advisor for the San Juan Resident Commissioner Office when defendant Acevedo Vilá served as Resident Commissioner and a volunteer in the finance department for Acevedo Vilá's 2004 gubernatorial campaign. Currently, Inclán Bird is a senior advisor for Governor Acevedo Vilá. Nazario Franco, a businessman in Puerto Rico, was director of the finance department for Acevedo Vilá's 2004 gubernatorial campaign. According to the indictment, the charges are focused on two related courses of conduct. The first, in counts one through four, alleges that the defendants deprived the citizens of Puerto Rico of the honest services of Acevedo Vilá as Governor of the Commonwealth of Puerto Rico. Specifically, the indictment alleges that during his campaign for governor, and continuing after he was elected and inaugurated, Acevedo Vilá and others connected with his campaign solicited and received approximately $250,000 from a local businessman, referred to as "Collaborator 18," for the benefit of Acevedo Vilá and his campaign. Furthermore, the indictment alleges that during his term as governor, Acevedo Vilá participated in official actions intended to aid the business interests of Collaborator 18, while failing to disclose the nature and extent of his financial relationship with Collaborator 18.

In the indictment, count five sets forth the second related course of conduct and alleges that the defendants conspired to conduct financial transactions with the illegal funds provided by Collaborator 18. These transactions were designed to conceal and disguise the nature and the source of the money, which constituted the proceeds of the honest services fraud alleged in the earlier counts. The indictment further alleges that the media company used by Acevedo Vilá's campaign created approximately $250,000 in fake invoices, which were provided to Collaborator 18's company under the guise that the media company had provided bona fide services when, in fact, it had done no work for Collaborator 18 or his company. These invoices were designed to conceal the fact that the $250,000, which was subsequently paid by Collaborator 18's company and used to offset debts incurred by the campaign, was the proceeds of the honest services fraud perpetrated by the defendants. If convicted on counts one through four, each defendant faces a maximum of 20 years in prison and a $250,000 fine. If convicted on the fifth count, each defendant faces a maximum of 20 years in prison and a fine of twice the value of the property involved in the transaction or $500,000 - whichever is greater.

This case is being prosecuted by First Assistant U.S. Attorney María A. Domínguez and Assistant U.S. Attorney Ernesto López of the District of Puerto Rico, as well as Trial Attorneys Daniel A. Schwager, Ethan H. Levisohn and Peter M. Koski of the Criminal Division's Public Integrity Section. The Public Integrity Section is headed by Chief William M. Welch, II. The case is being investigated by the FBI and Internal Revenue Service, with assistance and cooperation from the Office of the Comptroller of Puerto Rico. The investigation into related corruption and other crimes is ongoing in the District of Puerto Rico. An indictment is a formal accusation of criminal conduct, not evidence. A defendant is presumed innocent unless and until convicted through due process of law.

NY Comptroller revokes state pension of private lawyer

Comptroller revokes state pension of private lawyer
Newsday by SANDRA PEDDIE AND EDEN LAIKIN - August 21, 2008
eden.laikin@newsday.com; sandra.peddie@newsday.com

State Comptroller Thomas DiNapoli has revoked the pension of a private attorney from a politically prominent Garden City law firm, along with those of two upstate attorneys, bringing to 28 the number of people who have lost pensions or pension credits since the office launched a statewide investigation in April, DiNapoli's office announced yesterday. Gilbert Henoch, 75, a partner in a law firm that includes state Republican leader Joseph Mondello and former Hempstead Supervisor Gregory Peterson, had earned an annual public pension of $11,561 since retiring in 2003.

State and school district records show that he had accrued 26 years of credit in the pension system after being improperly reported as an employee of the Hempstead and East Meadow school districts. "State pensions are strictly for employees of state and local governments," DiNapoli said in a release. "Independent contractors do not qualify for state pensions." Neither Henoch nor his attorney, Norman Bloch, could be reached for comment yesterday. Since Newsday first reported in February that five school districts simultaneously reported private attorney Lawrence Reich as a full-time employee - enabling him to get a public pension of nearly $62,000 annually - DiNapoli and State Attorney General Andrew Cuomo have launched investigations into pension abuses.

Cuomo has reached settlements covering 66 attorneys and five law firms statewide, returning $935,000 to state coffers, according to Cuomo spokesman John Milgrim. DiNapoli's office has revoked 14 pensions, rescinded the pension credits of 12 people and suspended two pensions, according to spokesman Dennis Tompkins. In June, after Newsday first reported Henoch's employment arrangements, Cuomo announced that Henoch had settled with his office, agreeing to pay the state $60,000. At the time of the settlement, Bloch said Henoch agreed to the settlement because he had "received a pension in error." The comptroller's office also announced that it has rescinded pension credits for three other attorneys upstate. They were allowed to retain some credits because the comptroller found they had some legitimate service from other public employers. The attorneys who lost pensions, in addition to Henoch, were Joseph Pondolfino and Thomas DeBoy.

The comptroller's office said Pondolfino had been incorrectly listed as an employee of the Oneonta Central School District in Otsego County and that DeBoy had been reported as an employee of the Cheektowaga Central School District in Erie County. Pondolfino, reached in his Oneonta office, said, "I don't think they were correct in taking my pension under the circumstances I'm dealing with and I'm going to fight it." DeBoy said he also disagrees. "The way the comptroller conducted its investigation (i.e., never contacting me before reaching its initial conclusion, and declining to return my e-mails earlier this year) demonstrates that the decision to kick me out of ERS [Employees Retirement System] was predetermined several months ago," he wrote in an e-mail.

THE STORY SO FAR

--25 Attorneys and one accountant have either had their memberships in the retirement system revoked or had service credits rescinded by the state comptroller.

--2 Attorneys have had their pensions suspended by the comptroller.

--66 Attorneys and five law firms have been covered by settlements reached with the Attorney General. $935,000 Has been collected so far in settlements with the attorney general. 

Brooklyn Hero Emerges in Court Corruption Movement

The Impossible Dream
Judicial Reports by Jason Boog - August 20, 2008

A Brooklyn judicial delegate has mounted a campaign to clean up the judge picking process.

In his concurrence with the unanimous 2008 decision upholding New York’s system for selecting judges, U.S. Supreme Court Justice John Paul Stevens famously invoked an observation by his former colleague, Thurgood Marshall: “The Constitution does not prohibit legislatures from enacting stupid laws.”

In the first judicial election since that ruling, a Brooklyn judicial convention delegate — one of the privileged 141 Supreme Court choosers hand-picked by the Borough’s Democratic Party leaders — has declared war on the whole “stupid” system. “It’s really an anointment process,” said delegate Chris Owens, one of the delegates who will pick candidates to fill three openings on the Kings County Supreme Court in the September convention. “If we are going to have an appointment system, let’s call it that,” Owens continued. “If we’re going to make it an election, let’s make it an election we can be proud of. ” So far, Owens has raised $2,000 for his campaign to increase awareness of the judicial delegate system. He plans to distribute flyers to help make the public see just how tricked-up the labyrinthine process really is.

Working independently, Owens has produced a webpage featuring a manifesto against the delegate system, complete with a world music soundtrack on which the political activist sings a political anthem he wrote entitled, “Love Is the Way.” Owens also has set up a Facebook group for his campaign, collecting 212 members as of this writing. An unaffiliated gadfly? A member of the lunatic fringe? Hardly. The son of a former U.S. Congressman, Owens is president of the Central Brooklyn Independent Democrats, a powerful political club in the Borough.

FIGHTING THE GOOD FIGHT

The Don Quixote delegate can collect a thousand Facebook friends and print a million flyers, but the Supreme Court’s ruling in Lopez-Torres v. New York State Board of Elections virtually guaranteed that the windmills of the party boss system will keep on spinning for some time to come. Indeed, Owens himself is part of a slate of delegates who will enter the judicial convention uncontested — a testament to the smoothness of the Democratic Party’s machinery in Brooklyn.

Following New York State Election Law, judicial delegates such as Owens — picked from political clubs, influential organizations, and activist groups — effectively endorse the party leader’s choice at a scripted convention. In the overwhelmingly Democratic constituencies in New York City, that endorsement is tantamount to election. Unless the political parties decide to change their rules or the State Legislature drafts a new system, the judicial delegate process will stand forever in New York State.

“I will use the fact I am going into this [convention] to publicize the meeting,” said Owens, “ to highlight a process that is insular and not particularly transparent to the public. I don’t even know what the [judicial candidate] menu is going to be, and that in and of itself, is a problem for me . . . and here we are one of the biggest counties in the United States.” A number of delegates and political leaders concede the autocratic nature of the process. “In Brooklyn, I can’t even remember where there’s been a judicial delegate race,” said Alan Fleishman, the Democratic District Leader in the 52nd Assembly District, where Owens is serving as delegate. With very rare exceptions, the same can be said for the other four boroughs.

“At least [Owens] is keeping the [judicial selection reform] flame alive,” added political consultant Gary Tilzer. “I don’t see anybody else saying that. Not one elected official.” Tilzer helped then-Civil Court Judge Margarita Lopez Torres during her bids for the Supreme Court nomination. After five judicial convention shutouts, she filed her historic lawsuit. Despite his admiration for Owens’s campaign, Tilzer was pessimistic about his prospects. “When you don’t even have any opposition to the District Leader, how are you going to get opposition to [the Leader’s] judicial delegates?” he said. “It’s a total shut-down of the judicial system.”

ENTRENCHED SYSTEM

When pressed for historic examples of delegate dissent, Tilzer recalled how a coalition of 10 Brooklyn reform clubs attempted to run an oppositional slate of delegates against the Party delegates in the 1970s. They could only muster about 40 delegates at the convention, well below the number needed to actually sway the nomination process. “It is what it is. The candidates have been nominated, and we give them a rubber stamp of approval,” said Karen Johnson, a 52nd District Delegate and Deputy Chief of Staff for U.S. Congressman Ed Towns. “You’re always free to challenge the pack. Right now, there’s nobody challenging the status quo. It’s a little mundane.”

“The [political] clubs are representative of different areas and constituencies in our district, and we try to come up with a representative sample of activists in our community,” said Fleishman when asked how he helps pick the 11 delegates who will attend the judicial convention from his District. Delegate allotments are based on a complicated calculus that measures enrollment figures from the last gubernatorial election for each District, doling out more delegates to active neighborhoods. The 52nd District includes the politically active communities of Brooklyn Heights, Boerum Hill, Cobble Hill, Carroll Gardens, DUMBO, Vinegar Hill, and Park Slope. Its 11 Delegates are the most of any District in Brooklyn.

The 52nd contains three influential political clubs: Owens’s Central Brooklyn Independent Democrats, the Independent Neighborhood Democrats, and the Brooklyn arm of Lambda Independent Democrats. “A lot of us were disappointed that the U.S. Supreme Court allowed the system to continue, but until we come up with a better system, this is what we have,” said Bob Zuckerman, a 52nd AD Delegate and a City Council candidate in Brooklyn. Zuckerman is also President of the Independent Neighborhood Democrats, and he provided an insider’s glimpse into the arcane process.

Along with dozens of club members, Zuckerman canvassed Brooklyn with political petitions. The petitions included names of a variety of candidates for various non-judicial offices, depending on election districts. At the bottom of these petitions were the names of the judicial delegates — an unchallenged slate that included political activists from around the district. Zuckerman admitted that most petition-signers never even notice the judge pickers on the petitions. “I think people completely overlook it. It’s in small type, it’s quite large the list of candidates. Unless you make a point of brining it up, people just gloss right over it,” he said. Once the judicial delegates had collected 500 signatures, they were automatically included on the official list of delegates to the judicial convention in September. No one opposed their slate this year.

ONE CONTESTED DELEGATE LIST

Out of the 20 Democratic delegate lists proposed in Brooklyn, only one seems to be contested. In the 40th District — where Assemblywoman Diane Gordon served until she resigned after her conviction on bribery charges — two competing slates of seven delegates are now printed on the City Board of Elections primary contest list. This extra slate mystified Earl Williams, the District Leader in the 40th AD. “I’ve never seen it happen before,” he said. “I am speculating that [City Councilman] Charles Barron wants to get control of the District.” Barron’s office did not respond to calls for comment.

Nevertheless, Williams saw picking delegates as one of the Party’s most important functions. “[Our delegates] are aware when they go to the convention they will be selecting a judge for the long term. They must look at the qualifications for who is running,” he explained. “My democratic club votes on [which delegates] will be on the petition.” Williams has been a delegate for years, and said that he loves the process. “It gives me an opportunity to see inside and out the people we select for Supreme Court judges,” he said. Other districts aren’t quite as open about their process. The 53rd AD is home to Assemblyman Vito J. Lopez, the chairman of the Brooklyn Democrats. His home turf only gets six delegates, and some of them appear to have close ties to the politician.

Judicial Reports obtained a tentative delegate candidacy list that seemed to include Anna Gonzalez, the former chair of Community Board 4 in Brooklyn and Yvette Perez, a staffer at the Ridgewood Bushwick Senior Citizens Council — a social services non-profit that Assemblyman Lopez helped found. While neither woman returned calls for confirmation, both praised Assemblyman Lopez's housing reform efforts in this 2003 New York Times article. In addition, a delegate named Stephen Levin rounds out the list. Assemblyman Lopez’s Chief of Staff is named Stephen Levin, but he did not return a call for comment. By tradition, the five Supreme Court incumbents in Brooklyn will receive uncontested nominations at the convention.

As for the open seats, according to multiple delegates in Brooklyn, the final list of candidates had not been shared with the judge pickers as of this writing. The Brooklyn Democratic Party Chair did not respond to a call for comment on this article. Owens noted that the final list is generally never settled until the weeks leading up to the judicial convention — sometimes the Democratic leaderships' anointed favorites aren’t clear until the day of the actual convention. “Unless there’s something really wrong with them, the [judicial picks] are automatically becoming the nominees,” concluded Owens. “Realistically, how can a Supreme Court Judge be held accountable for anything?”   jasonboog@judicialstudies.com