Ex-Senator's Criticism of Counsel in Effort to Upset Plea Rebuffed
The New York Law Journal by Joel Stashenko - July 25, 2011
The U.S. Court of Appeals for the Second Circuit upheld the conviction of Efraim Gonzalez Jr. for using public money for personal purposes, rejecting Mr. Gonzalez's contention that he was not properly apprised by Bronx defense attorney Murray Richman of the ramifications of the guilty plea he entered in 2009. An appellate court has rebuffed a former state senator's complaint that he was not allowed to withdraw a guilty plea to corruption charges he allegedly made under pressure from a well-known defense attorney who was "incapable, unwilling and unprepared" for trial. The U.S. Court of Appeals for the Second Circuit upheld the conviction of Efraim Gonzalez Jr. for using public money for personal purposes, although the panel asked a district court judge to re-examine his calculation of $122,775 for restitution in the case. The Second Circuit panel rejected Mr. Gonzalez's contention that he was not properly apprised by Bronx defense attorney Murray Richman of the ramifications of the guilty plea he entered in 2009. Moreover, the unanimous panel concluded in United States v. Gonzalez, 10-2202-cr, that Southern District Judge William H. Pauley III had not attempted to pressure Mr. Gonzalez into pleading guilty because he was in a hurry to conclude the case. Nor had he erred in refusing to let Mr. Gonzalez withdraw his plea, the court said. "Now, Mr. Gonzalez, your attorney has informed me that you wish to enter a plea of guilty," the record quoted Judge Pauley asking as the legislator entered his plea. "Do you wish to enter a plea of guilty?" "Yes, your honor," the ruling quoted Mr. Gonzalez as responding. "Have you had a full opportunity to discuss your case with your attorney and to discuss the consequences of entering a plea of guilty?" Judge Pauley pressed. "Yes, your honor." "Are you satisfied with your attorney, Mr. Richman, and his representation of you in connection with this matter?" "Yes, your honor." The circuit said that Mr. Richman had "in no way indicated that he was not prepared to go to trial." Nor could the attorney be faulted for his pessimistic assessment of Mr. Gonazalez's chances at trial. Indeed, the circuit said that he was obligated to share that pessimistic assessment with his client. A transcript of Mr. Richman's remarks at a hearing before the plea "makes clear that the conflict between Gonzalez and Richman centered simply on Gonzalez's view that he was innocent and Richman's view that he would be proven guilty, and that Richman would refuse to proceed in a manner that was unethical," Judge Amalya Kearse wrote for a panel that also included Judges Roger J. Miner and Denny Chin. The panel said Mr. Gonzalez's criticisms of Mr. Richman were not supported by the record. It noted that Judge Pauley had described Mr. Richman as a "highly experienced and well qualified lawyer." Mr. Richman said in an interview on Friday it is "difficult to understand" how Mr. Gonzalez could argue that he did not understand the guilty plea he entered. "He was totally cognizant," Mr. Richman said. "We went over it several times. You don't take a plea lightly, especially with a public figure." Mr. Richman said he still considers Mr. Gonzalez his friend. "But I have maintained that we often do the impossible for the ungrateful," Mr. Richman said in an interview. Mr. Gonzalez, a former Democratic state senator from the Bronx from 1990-2008, pleaded guilty to mail fraud, conspiracy to commit mail fraud, wire fraud and other charges in connection with what federal prosecutors said was a scheme to use public grants and gift money to fund the senator's private spending. The scheme used organizations like the West Bronx Neighborhood Association, the United Latin American Foundation and Pathways for Youth Inc. to attract public and private funding. Some of their funding went into Mr. Gonzalez's accounts, according to prosecutors, including more than $400,000 from Pathways alone. The court said the money was used for personal bills for the Gonzalez family, including a membership in a vacation club in the Dominican Republic, the rental of a luxury apartment in the Dominican Republic, his rental of a summer residence in upstate New York, college tuition for his daughter and his purchase of personal items, including "premium" New York Yankees' tickets. Similarly, some money committed to the other groups also ended up in the Gonzalez's possession, the court said. Mr. Gonzalez was sentenced to 84 months in prison, less than the guidelines range of 108 to 135 months, and two years of post-release supervision. He also was ordered to pay $122,775 in restitution to contributors to the West Bronx organization. The circuit affirmed the prison sentence but questioned whether the government's claims of contributions were accurate. "Gonzalez has argued that an order granting persons on the West Bronx donor lists restitution in the full amount of the checks they sent in [in] connection with a gala birthday party may well grant them restitution in excess of their losses," Judge Kearse said. She noted that "it may well be that some of the listed donors made contributions and received nothing in return." Valid questions have been raised about the "accuracy and ...qualifications of the donors' losses," the court held. Southern District Assistant U.S. Attorney Michael A. Levy argued for the prosecution. Lance Croffort-Suede and Patrick C. Askby of Linklaters represented Mr. Gonzalez. Joel Stashenko can be reached at jstashenko@alm.com.
Tuesday, July 26, 2011
Monday, July 25, 2011
Still Hoping for Justice
This Is Considered Punishment?
The New York Times by Joe Nocera - July 25, 2011
OP-ED
Last Wednesday, nearly lost in the furor over Rupert-gate and the debt ceiling crisis, came the surprising news that the Federal Reserve has issued a cease-and-desist order against a Too-Big-to-Fail bank. The bank was Wells Fargo, which was also fined $85 million and ordered to compensate customers it had unfairly — indeed, illegally — taken advantage of during the subprime bubble. What made the news surprising, of course, was that the Federal Reserve has rarely, if ever, taken action against a bank for making predatory loans. Alan Greenspan, the former Fed chairman, didn’t believe in regulation and turned a blind eye to subprime abuses. His successor, Ben Bernanke, is not the ideologue that Greenspan is, but, as an institution, the Fed prefers to coddle banks rather than punish them. That the Fed would crack down on Wells Fargo would seem to suggest a long-overdue awakening. Yet, for anyone still hoping for justice in the wake of the financial crisis, the news was hardly encouraging. First, the Fed did not force Wells Fargo to admit guilt — and even let the company issue a press release blaming its wrongdoing on a “relatively small group.” The $85 million fine was a joke; in just the last quarter, Wells Fargo’s revenues exceeded $20 billion. And compensating borrowers isn’t going to hurt much either. By my calculation, it won’t top $20 million. Most upsetting of all, the settlement raises the question that just won’t go away: Why can’t the federal government prosecute financial wrongdoers? I realize that the Federal Reserve can’t bring a criminal case (and, to be fair, there are statutory limits on how big a fine it can levy). But the Justice Department certainly can. Yet ever since it lost an early case against two Bear Stearns fund managers in 2009, it has gone after only the smallest of small fry: individual borrowers, brokers and appraisers who lack the means to do much more than plead guilty. In March, for instance, I wrote about the sad case of Charlie Engle, the ultra-marathoner, who was convicted of lying on a liar loan — that is, exaggerating his income on a subprime mortgage application — even though the evidence against him was thin. Prosecuted by Neil H. MacBride, the U.S. attorney for the Eastern District of Virginia, Engle was sentenced to 21 months in prison. Now compare Engle’s alleged crime to the case the Federal Reserve brought against Wells Fargo Financial, which, until it was shut down last summer, was the subprime subsidiary of Wells Fargo, based in Des Moines. There were several allegations, but the one that caught my eye was that Wells employees “falsified income information on mortgage applications.” In other words, they lied on liar loans! The only difference is that the lying was done by a group of Wells Fargo brokers rather than by some poor sap like Charlie Engle. What’s more, this practice appears to have been quite widespread — “fostered,” as the Fed puts it, “by Wells Fargo Financial’s incentive compensation and sales quota programs.” Matthew R. Lee, the executive director of Inner City Press/Community on the Move and Fair Finance Watch, spent years bringing Wells’ subprime abuses to the attention of the Federal Reserve. “The way the compensation was designed ensured that abuses would take place,” he says. “It was a predatory system.” These are exactly the kind of loans — built on illegal practices — that gave us the financial crisis. Brokers working for subprime mortgage companies routinely doctored incomes to hand out subprime loans they knew the borrowers could never repay — and then, after taking their fat fees, shoveled the loans to Wall Street, which bundled them into subprime securities. This was the kindling that lit the inferno of September 2008. So again, I ask: Why is there no criminal investigation into what went on at Wells Fargo Financial? The person I called for answers was the press secretary to Nicholas A. Klinefeldt, the U.S. attorney for the Southern District of Iowa, which includes Des Moines. A glance at Klinefeldt’s 2011 press releases suggests that he takes the MacBride approach to mortgage fraud: only the little guy has anything to fear. Needless to say, his press secretary knew nothing about the Wells Fargo case and even questioned whether the Southern District of Iowa had jurisdiction. The next day, he referred me to a Justice Department spokeswoman. I wrote her an e-mail laying out my question as plainly as I could: “I am trying to understand why the mortgage brokers who work at a major bank are getting a pass when they have lied on liar loans,” I said. That was Friday. On Monday, at 8:30 p.m., a half-hour from press time, the Justice Department sent me a statement claiming that in 2010 “the number of defendants in mortgage fraud cases more than doubled” from 2009. Not one of those defendants ever worked for Wells Fargo Financial.
The New York Times by Joe Nocera - July 25, 2011
OP-ED
Last Wednesday, nearly lost in the furor over Rupert-gate and the debt ceiling crisis, came the surprising news that the Federal Reserve has issued a cease-and-desist order against a Too-Big-to-Fail bank. The bank was Wells Fargo, which was also fined $85 million and ordered to compensate customers it had unfairly — indeed, illegally — taken advantage of during the subprime bubble. What made the news surprising, of course, was that the Federal Reserve has rarely, if ever, taken action against a bank for making predatory loans. Alan Greenspan, the former Fed chairman, didn’t believe in regulation and turned a blind eye to subprime abuses. His successor, Ben Bernanke, is not the ideologue that Greenspan is, but, as an institution, the Fed prefers to coddle banks rather than punish them. That the Fed would crack down on Wells Fargo would seem to suggest a long-overdue awakening. Yet, for anyone still hoping for justice in the wake of the financial crisis, the news was hardly encouraging. First, the Fed did not force Wells Fargo to admit guilt — and even let the company issue a press release blaming its wrongdoing on a “relatively small group.” The $85 million fine was a joke; in just the last quarter, Wells Fargo’s revenues exceeded $20 billion. And compensating borrowers isn’t going to hurt much either. By my calculation, it won’t top $20 million. Most upsetting of all, the settlement raises the question that just won’t go away: Why can’t the federal government prosecute financial wrongdoers? I realize that the Federal Reserve can’t bring a criminal case (and, to be fair, there are statutory limits on how big a fine it can levy). But the Justice Department certainly can. Yet ever since it lost an early case against two Bear Stearns fund managers in 2009, it has gone after only the smallest of small fry: individual borrowers, brokers and appraisers who lack the means to do much more than plead guilty. In March, for instance, I wrote about the sad case of Charlie Engle, the ultra-marathoner, who was convicted of lying on a liar loan — that is, exaggerating his income on a subprime mortgage application — even though the evidence against him was thin. Prosecuted by Neil H. MacBride, the U.S. attorney for the Eastern District of Virginia, Engle was sentenced to 21 months in prison. Now compare Engle’s alleged crime to the case the Federal Reserve brought against Wells Fargo Financial, which, until it was shut down last summer, was the subprime subsidiary of Wells Fargo, based in Des Moines. There were several allegations, but the one that caught my eye was that Wells employees “falsified income information on mortgage applications.” In other words, they lied on liar loans! The only difference is that the lying was done by a group of Wells Fargo brokers rather than by some poor sap like Charlie Engle. What’s more, this practice appears to have been quite widespread — “fostered,” as the Fed puts it, “by Wells Fargo Financial’s incentive compensation and sales quota programs.” Matthew R. Lee, the executive director of Inner City Press/Community on the Move and Fair Finance Watch, spent years bringing Wells’ subprime abuses to the attention of the Federal Reserve. “The way the compensation was designed ensured that abuses would take place,” he says. “It was a predatory system.” These are exactly the kind of loans — built on illegal practices — that gave us the financial crisis. Brokers working for subprime mortgage companies routinely doctored incomes to hand out subprime loans they knew the borrowers could never repay — and then, after taking their fat fees, shoveled the loans to Wall Street, which bundled them into subprime securities. This was the kindling that lit the inferno of September 2008. So again, I ask: Why is there no criminal investigation into what went on at Wells Fargo Financial? The person I called for answers was the press secretary to Nicholas A. Klinefeldt, the U.S. attorney for the Southern District of Iowa, which includes Des Moines. A glance at Klinefeldt’s 2011 press releases suggests that he takes the MacBride approach to mortgage fraud: only the little guy has anything to fear. Needless to say, his press secretary knew nothing about the Wells Fargo case and even questioned whether the Southern District of Iowa had jurisdiction. The next day, he referred me to a Justice Department spokeswoman. I wrote her an e-mail laying out my question as plainly as I could: “I am trying to understand why the mortgage brokers who work at a major bank are getting a pass when they have lied on liar loans,” I said. That was Friday. On Monday, at 8:30 p.m., a half-hour from press time, the Justice Department sent me a statement claiming that in 2010 “the number of defendants in mortgage fraud cases more than doubled” from 2009. Not one of those defendants ever worked for Wells Fargo Financial.
Friday, July 22, 2011
Judicial Pay Commission Boss Says Judges Made Strong Case for Raise
Panel's Chair Says Judges Made Strong Case for Raise
The New York Law Journal by Joel Stashenko - July 22, 2011
The chairman of the judicial pay commission said yesterday that the state's judges have raised valid concerns about the personal toll of having gone more than 12 years without raises, and about the threats to the quality of state courts that the pay drought has created. William C. Thompson Jr., the former New York City comptroller, said several judges who spoke at the hearing of the Commission on Judicial Compensation (NYLJ, July 21) on Wednesday "passionately" expressed their desire to continue in public service on the bench in spite of going since 1999 without salary increases. "But at the same time, they want to...sustain a middle-class lifestyle," Mr. Thompson told the "Capitol Pressroom," a government and political interview show broadcast on several public radio stations in the state. "That only seems fair." Mr. Thompson also said that turnover in the judiciary has increased from about 5 percent to about 10 percent, according to information gathered by the commission and that New York citizens should be concerned whenever experienced judges are leaving the bench, or talented lawyers do not seek judicial posts because of the pay situation. "The average citizen should be concerned," Mr. Thompson said. "You want to make sure you have the best and the brightest, the strongest judiciary possible." Governor Andrew M. Cuomo appointed Mr. Thompson to head the seven member commission, which has until late August to recommend pay adjustments for judges through March 31, 2016. The proposal will have the force of law, unless the Legislature seeks to prohibit the increases. Mr. Thompson noted the gloomy assessment yesterday of the state's finances by state Budget Director Robert Megna and of the state's ability to afford pay raises starting on April 1, 2012. But Mr. Thompson said Mr. Megna was doing his job by providing his analysis of the budget and that the state's ability to pay for salary hikes must be one factor the commission takes into consideration. "I think the budget director laid out the fiscal condition in the state and how difficult things are now here," Mr. Thompson said. "We have to factor all of that in as we make decisions on the level of compensation and the state's fiscal situation is one of the things that we have to factor in, definitely." Mr. Thompson said yesterday he believes Mr. Cuomo is "committed" to a judicial pay raise. "I think Governor Cuomo is committed to this," Mr. Thompson said.
The New York Law Journal by Joel Stashenko - July 22, 2011
The chairman of the judicial pay commission said yesterday that the state's judges have raised valid concerns about the personal toll of having gone more than 12 years without raises, and about the threats to the quality of state courts that the pay drought has created. William C. Thompson Jr., the former New York City comptroller, said several judges who spoke at the hearing of the Commission on Judicial Compensation (NYLJ, July 21) on Wednesday "passionately" expressed their desire to continue in public service on the bench in spite of going since 1999 without salary increases. "But at the same time, they want to...sustain a middle-class lifestyle," Mr. Thompson told the "Capitol Pressroom," a government and political interview show broadcast on several public radio stations in the state. "That only seems fair." Mr. Thompson also said that turnover in the judiciary has increased from about 5 percent to about 10 percent, according to information gathered by the commission and that New York citizens should be concerned whenever experienced judges are leaving the bench, or talented lawyers do not seek judicial posts because of the pay situation. "The average citizen should be concerned," Mr. Thompson said. "You want to make sure you have the best and the brightest, the strongest judiciary possible." Governor Andrew M. Cuomo appointed Mr. Thompson to head the seven member commission, which has until late August to recommend pay adjustments for judges through March 31, 2016. The proposal will have the force of law, unless the Legislature seeks to prohibit the increases. Mr. Thompson noted the gloomy assessment yesterday of the state's finances by state Budget Director Robert Megna and of the state's ability to afford pay raises starting on April 1, 2012. But Mr. Thompson said Mr. Megna was doing his job by providing his analysis of the budget and that the state's ability to pay for salary hikes must be one factor the commission takes into consideration. "I think the budget director laid out the fiscal condition in the state and how difficult things are now here," Mr. Thompson said. "We have to factor all of that in as we make decisions on the level of compensation and the state's fiscal situation is one of the things that we have to factor in, definitely." Mr. Thompson said yesterday he believes Mr. Cuomo is "committed" to a judicial pay raise. "I think Governor Cuomo is committed to this," Mr. Thompson said.
Thursday, July 21, 2011
Cuomo Aide: Time Is Not Right to Raise Judges' Pay
Cuomo Aide: Time Is Not Right to Raise Judges' Pay
The New York Law Journal by Joel Stashenko - July 21, 2011
Although virtually all of the 33 speakers at yesterday's hearing advocated for an immediate and large pay raise for the state's 1,200 judges, Governor Cuomo's top budget adviser said the state cannot afford it, citing continuing budget shortfalls and the state's attempt to negotiate concessions with its other employees.
ALBANY, NY - Governor Andrew M. Cuomo's top budget adviser said yesterday that New York state cannot afford raises for judges in the short term. "I think the issue as we see it right now…is that the spending is not affordable," Robert Megna told the seven members of a judicial compensation commission established to consider whether state judges should get their first raises since Jan. 1, 1999. Mr. Megna was one of 33 speakers at the commission's first and only hearing. Virtually all of them advocated for an immediate and large pay raise for the state's 1,200 judges. But Mr. Megna cited the state's continuing budget shortfalls and its attempt to negotiate concessions with its other employees. Members of both the Civil Service Employees Association and the Public Employees Federation, which together represent about 120,000 workers, are currently weighing new contracts that include three-year wage freezes, unpaid week-long furloughs and greater employee pension and health insurance contributions. Mr. Megna said an immediate pay raise on the order of the 40 percent or more that the Office of Court Administration and judicial groups are proposing to make up for judges' losses to inflation since 1999 would throw the state's pay scale "out of whack." He also noted that state cabinet-level employees, legislators and statewide-elected officials, such as Mr. Cuomo himself, have not gotten raises since 1999. Mr. Megna described it as a conscious, long-term effort to keep salaries for top judges and state officials "relatively constant." Mr. Megna observed that the state faces a $2.4 billion budget gap in the year beginning April 1, when raises for the judges would go into effect. William C. Thompson Jr., Mr. Cuomo's choice as chairman of the commission, said after yesterday's hearing that Mr. Megna had touched on one aspect that commission members know they have to consider: the state's ability to pay for a judicial raise, if the panel recommends one. "He gave a strong presentation," Mr. Thompson said of Mr. Megna's comments. "But we've all been aware of [the state's fiscal woes] as an element in our deliberations." Other factors the commission is to consider before making its report by Aug. 29 are what judges on other federal and state benches earn and the effects of inflation on judges' salaries. Advocates for a significant raise up front included the New York State Bar Association (Read Testimony), the New York City Bar (Read Submission), the New York County Lawyers' Association (Read Submission), the Fund for Modern Courts and New York City Corporation Counsel Michael A. Cardozo (Read Testimony). The state's chief administrative judge, Ann Pfau, argued that the public's "trust and confidence" in the Judiciary will be maintained by paying judges a realistic wage that is in keeping with what federal judges in other states or associates at large law firms make. Judith Kaye, former New York State Chief Judge, left, and Ann Pfau, chief administrative judge, testify before the commission. "We strongly believe that any award should be immediate and complete—that is, it should not be staggered or phased in over a period of several years in light of the state's current fiscal difficulties," Judge Pfau said. "Such a phase-in could accomplish little and damage a good deal." Asked after the hearing about Mr. Megna's comments, Judge Pfau repeated what she told the commission, that a raise would amount to about $77 million, a minute portion of the overall state budget of some $131 billion. Judge Pfau argued that judges have been unfairly shortchanged and that the current state fiscal crisis should not preclude the commission from recommending a raise that judges deserve. "It is a problem that has been over 12 years in the making," she said in an interview. "If judges had received regular cost-of-living increases, I would agree with him [Mr. Megna]. But I think we are in a different situation, from my perspective." Judge Pfau was among several witnesses who contended that by denying judges the raises since 1999, the state saved more than $500 million in salaries and benefits. Judge Pfau said she was also surprised by Mr. Megna's comments suggesting that keeping judges' salaries —and those of top state bureaucrats and legislators—at a "relatively constant" level was a conscious policy decision. The Judiciary has argued that pay raise bills have failed annually because they have become unconstitutionally encumbered by debates on unrelated public policy matters such as government ethics bills. The Court of Appeals has agreed with that assessment. The former chief judge of the state, Judith S. Kaye, now of Skadden, Arps, Slate, Meagher & Flom, implored the commission to recommend a raise for the sake of the independence of the judiciary, despite the state's rough fiscal circumstances. "Raises for New York judges now?" she asked commission members. "Yes, raises for New York judges now." Ms. Kaye sued the governor and Legislature while chief judge to force passage of a raise. Mr. Cardozo argued that the lack of a pay raise is weakening both the Judiciary and state government. He argued that the salary has made it difficult to attract qualified applicants for the bench. Senior public services attorneys, such as prosecutors and the ones in his own office, are reluctant to accept what would represent a pay cut, he said. "This must be corrected," Mr. Cardozo said. "Now."
The New York Law Journal by Joel Stashenko - July 21, 2011
Although virtually all of the 33 speakers at yesterday's hearing advocated for an immediate and large pay raise for the state's 1,200 judges, Governor Cuomo's top budget adviser said the state cannot afford it, citing continuing budget shortfalls and the state's attempt to negotiate concessions with its other employees.
ALBANY, NY - Governor Andrew M. Cuomo's top budget adviser said yesterday that New York state cannot afford raises for judges in the short term. "I think the issue as we see it right now…is that the spending is not affordable," Robert Megna told the seven members of a judicial compensation commission established to consider whether state judges should get their first raises since Jan. 1, 1999. Mr. Megna was one of 33 speakers at the commission's first and only hearing. Virtually all of them advocated for an immediate and large pay raise for the state's 1,200 judges. But Mr. Megna cited the state's continuing budget shortfalls and its attempt to negotiate concessions with its other employees. Members of both the Civil Service Employees Association and the Public Employees Federation, which together represent about 120,000 workers, are currently weighing new contracts that include three-year wage freezes, unpaid week-long furloughs and greater employee pension and health insurance contributions. Mr. Megna said an immediate pay raise on the order of the 40 percent or more that the Office of Court Administration and judicial groups are proposing to make up for judges' losses to inflation since 1999 would throw the state's pay scale "out of whack." He also noted that state cabinet-level employees, legislators and statewide-elected officials, such as Mr. Cuomo himself, have not gotten raises since 1999. Mr. Megna described it as a conscious, long-term effort to keep salaries for top judges and state officials "relatively constant." Mr. Megna observed that the state faces a $2.4 billion budget gap in the year beginning April 1, when raises for the judges would go into effect. William C. Thompson Jr., Mr. Cuomo's choice as chairman of the commission, said after yesterday's hearing that Mr. Megna had touched on one aspect that commission members know they have to consider: the state's ability to pay for a judicial raise, if the panel recommends one. "He gave a strong presentation," Mr. Thompson said of Mr. Megna's comments. "But we've all been aware of [the state's fiscal woes] as an element in our deliberations." Other factors the commission is to consider before making its report by Aug. 29 are what judges on other federal and state benches earn and the effects of inflation on judges' salaries. Advocates for a significant raise up front included the New York State Bar Association (Read Testimony), the New York City Bar (Read Submission), the New York County Lawyers' Association (Read Submission), the Fund for Modern Courts and New York City Corporation Counsel Michael A. Cardozo (Read Testimony). The state's chief administrative judge, Ann Pfau, argued that the public's "trust and confidence" in the Judiciary will be maintained by paying judges a realistic wage that is in keeping with what federal judges in other states or associates at large law firms make. Judith Kaye, former New York State Chief Judge, left, and Ann Pfau, chief administrative judge, testify before the commission. "We strongly believe that any award should be immediate and complete—that is, it should not be staggered or phased in over a period of several years in light of the state's current fiscal difficulties," Judge Pfau said. "Such a phase-in could accomplish little and damage a good deal." Asked after the hearing about Mr. Megna's comments, Judge Pfau repeated what she told the commission, that a raise would amount to about $77 million, a minute portion of the overall state budget of some $131 billion. Judge Pfau argued that judges have been unfairly shortchanged and that the current state fiscal crisis should not preclude the commission from recommending a raise that judges deserve. "It is a problem that has been over 12 years in the making," she said in an interview. "If judges had received regular cost-of-living increases, I would agree with him [Mr. Megna]. But I think we are in a different situation, from my perspective." Judge Pfau was among several witnesses who contended that by denying judges the raises since 1999, the state saved more than $500 million in salaries and benefits. Judge Pfau said she was also surprised by Mr. Megna's comments suggesting that keeping judges' salaries —and those of top state bureaucrats and legislators—at a "relatively constant" level was a conscious policy decision. The Judiciary has argued that pay raise bills have failed annually because they have become unconstitutionally encumbered by debates on unrelated public policy matters such as government ethics bills. The Court of Appeals has agreed with that assessment. The former chief judge of the state, Judith S. Kaye, now of Skadden, Arps, Slate, Meagher & Flom, implored the commission to recommend a raise for the sake of the independence of the judiciary, despite the state's rough fiscal circumstances. "Raises for New York judges now?" she asked commission members. "Yes, raises for New York judges now." Ms. Kaye sued the governor and Legislature while chief judge to force passage of a raise. Mr. Cardozo argued that the lack of a pay raise is weakening both the Judiciary and state government. He argued that the salary has made it difficult to attract qualified applicants for the bench. Senior public services attorneys, such as prosecutors and the ones in his own office, are reluctant to accept what would represent a pay cut, he said. "This must be corrected," Mr. Cardozo said. "Now."
Wednesday, July 20, 2011
Judge Faulted by Corrupt Tembeckjian for Hearing Cases Brought by His Firm
Judge Faulted for Hearing Cases Brought by His Firm
The New York Law Journal by Joel Stashenko - July 20, 2011
An upstate City Court judge has been admonished by the Commission on Judicial Conduct for presiding over cases brought by a local attorney whom the judge's law firm had hired to act as a debt collector. The commission said yesterday that David A. Shults, an attorney and part-time judge in Hornell, Steuben County, acknowledged that he did not disclose that his firm, Shults and Shults, had hired Joseph G. Pelych of Hornell to enforce court judgments the firm had obtained. The commission reported that Judge Shults improperly presided over nine cases involving Mr. Pelych. "It is inexplicable why the attorney's request for the respondent's recusal failed to bring to his attention that he should not be presiding, or even to create a doubt in his mind sufficient to check the Advisory Opinions [on judicial ethics] or other relevant law," the commission held. But it noted in mitigation that the judge had been called on unexpectedly to fill in for another judge on the day of his alleged violations and may not have been aware of his firm's relationship with Mr. Pelych. Moreover, the commission observed that the judge cooperated fully with its investigation. Commission members Thomas A. Klonick, Terry Jane Ruderman, Rolando T. Acosta, Joel Cohen, Paul B. Harding, Nina M. Moore and Richard A. Stoloff joined in the majority ruling. Richard Emery and Supreme Court Justice Karen K. Peters argued that Judge Shults, an attorney since 1997, should have received the more severe penalty of a public censure. "In view of respondent's attorney-client relationship with Mr. Pelych, respondent's handling of these matters was unavoidably twinged with an appearance of impropriety," the dissenters argued. "Even if respondent believes he could be impartial in these cases, at the very least disclosing the relationship was required under the ethical guidelines."
STATE OF NEW YORK COMMISSION ON JUDICIAL CONDUCT
In the Matter of the Proceeding Pursuant to Section 44, subdivision 4, of the Judiciary Law in Relation to
DETERMINATION - DAVID A. SHULTS, a Judge of the Hornell City Court, Steuben County.
THE COMMISSION: Honorable Thomas A. Klonick, Chair; Honorable Terry Jane Ruderman, Vice Chair; Honorable Rolando T. Acosta; Joseph W. Belluck, Esq.; Joel Cohen, Esq.; Richard D. Emery, Esq.; Paul B. Harding, Esq.; Nina M. Moore; Honorable Karen K. Peters; Richard A. Stoloff, Esq.
APPEARANCES: Robert H. Tembeckjian (David M. Duguay, Of Counsel) for the Commission; Honorable David A. Shults, pro se
The respondent, David A. Shults, a Judge ofthe Hornell City Court, Steuben County, was served with a Formal Written Complaint dated February 16,2011, containing one charge. The Fonnal Written Complaint alleged that respondent presided over nine cases in which a client of his law firm represented a party. Respondent filed an undated answer on or about March 9, 2011. On June 7, 2011, the Administrator and respondent entered into an Agreed Statement of Facts pursuant to Judiciary Law §44(5), stipulating that the Commission make its determination based upon the agreed facts, recommending that respondent be admonished and waiving further submissions and oral argument. On June 16, 2011, the Commission accepted the Agreed Statement and made the following determination.
In a 1976 disciplinary proceeding, the Appellate Division, Second Department, stated that handling matters involving former clients "cannot [be] countenance[d]" and might in some cases result in removal: While we realize that in small communities, part-time judges or justices, many of whom are principally engaged in the practice of the law, know many, if not most, of the people in their community, and may, in exigent circumstances, be required to preside over arraignments and bail applications, we cannot countenance the apparently prevailing practice in which such judicial officers sit in judgment in cases in which they formerly had an attorney-client relationship with the litigant. Hereafter any such conduct by a judicial officer, whether full or part-time, may well be met with removal of the offender from office. Matter ofFilipowicz, 54 AD2d 348, 350 (2d Dept 1976). Since 1988, the Advisory Committee on Judicial Ethics has issued numerous opinions reminding judges who practice law of the impropriety of handling matters involving their clients and providing specific guidelines for judges in such situations. Under these standards, ajudge's disqualification in matters involving a client of the judge's law firm is required during the representation and for two years thereafter, subject to remittal; after that time, ajudge
may preside in such matters after full disclosure on the record and in the absence of a meritorious objection (see, e.g., Adv Op 01-71,97-85,94-71,92-14,92-01,89-13). The Committee has also stated that "the same standards and guidelines [for disqualification] should apply" in matters in which the attorney in a case is a client or former client as in matters in which a party is a client (Op 01-71; see also, Op 89-13). The Commission has disciplined judges for failing to disqualify in cases involving such conflicts (see, e.g., Matter ofAison, 2010 Annual Report 62; Matter of Bruhn, 1988 Annual Report 133; Matter of Feeney, 1988 Annual Report 159; Matter of Darrigo, 2 Commission Determinations 353 [1981]). As stipulated here, respondent violated these standards by presiding over and/or taking other judicial action in eight criminal cases and one civil case in which Mr. Pelych represented a party, notwithstanding that at the time Mr. Pelych was a client of respondent's firm. Respondent did not disclose the conflict or offer to disqualify himself. In Scouten v. Mann, respondent denied a request for his recusal when an attorney objected to respondent's participation in the case, forcing the attorney to commence litigation that resulted in Mr. Pelych's disqualification. It is inexplicable why the attorney's request for respondent's recusal failed to bring to his attention that he should not be presiding, or even to create a doubt in his mind sufficient to check the Advisory Opinions or other relevant law. In view of respondent's attorney-client relationship with Mr. Pelych, respondent's handling of these matters was unavoidably tinged with an appearance of impropriety. Even if respondent believed he could be impartial in these cases, at the very least disclosing the relationship was required under the ethical guidelines. As we have previously stated, "There can be no substitute for making full disclosure on the record in order to ensure that the parties are fully aware of the pertinent facts and have an opportunity to consider whether to seek the judge's recusal" (Matter of Merrill, 2008 Annual Report 181 [Comm on Judicial Conduct]). By failing to disclose his attorney client relationship with the attorney appearing before him, respondent did not act "in a manner that promotes public confidence in the integrity and impartiality of the judiciary" (Rules, §100.2[A]). In mitigation, we note that the eight criminal cases occurred on the same date, when respondent was substituting for a colleague who was the assigned judge in those cases, and that there is no indication that respondent's judicial actions were influenced by his relationship with Mr. Pelych. We also note that respondent was cooperative with the Commission and has pledged to adhere to the Rules. By reason of the foregoing, the Commission determines that the appropriate disposition is admonition.
Judge Klonick, Judge Ruderman, Judge Acosta, Mr. Cohen, Mr. Harding, Ms. Moore and Mr. Stoloff concur. Mr. Emery and Judge Peters dissent in an opinion and vote to reject the Agreed Statement on the basis that the proposed disposition is too lenient. Mr. Belluck was not present.
CERTIFICATION It is certified that the foregoing is the determination of the State Commission on Judicial Conduct.
Dated: July 7, 2011 - Jean M. Savanyu, Esq. Clerk of the Commission, New York State Commission on Judicial Conduct
STATE OF NEW YORK COMMISSION ON JUDICIAL CONDUCT
In the Matter of the Proceeding Pursuant to Section 44, subdivision 4, of the Judiciary Law in Relation to
DAVID A. SHULTS, a Judge of the Hornell City Court, Steuben County.
DISSENTING OPINION BY MR. EMERY AND JUDGE PETERS
Put simply, respondent, a part-time judge for over a decade, had a private practice which included debt collection. The Town Attorney had cases in front of the judge. At the same time the Town Attorney hired the judge to collect debts for his own law practice. The Rules could not be clearer that a judge cannot sit on a current client's case. In fact, as the Determination points out, this violation can be grounds for removal. In this case the judge not only violated the Rules but refused to acknowledge the violation
when a litigant's attorney appearing before him pointed it out and asked him to do what was required - get off the case. Respondent's intransigence forced the litigant to go to a higher judge to order respondent to step aside. We do not believe that this conduct, in the face of a glaring and knowing violation, should be rewarded with a mere admonition. More severe discipline is mandated no matter how conveniently remorseful the judge is when the Commission institutes proceedings. Thus, he should be censured. Accordingly, we vote to reject the Agreed Statement of Facts.
Dated: July 7, 2011 - Richard D. Emery, Esq., Member, New York State Commission on Judicial Conduct; Honorable Karen K. Peters, Member, New York State Commission on Judicial Conduct
The New York Law Journal by Joel Stashenko - July 20, 2011
An upstate City Court judge has been admonished by the Commission on Judicial Conduct for presiding over cases brought by a local attorney whom the judge's law firm had hired to act as a debt collector. The commission said yesterday that David A. Shults, an attorney and part-time judge in Hornell, Steuben County, acknowledged that he did not disclose that his firm, Shults and Shults, had hired Joseph G. Pelych of Hornell to enforce court judgments the firm had obtained. The commission reported that Judge Shults improperly presided over nine cases involving Mr. Pelych. "It is inexplicable why the attorney's request for the respondent's recusal failed to bring to his attention that he should not be presiding, or even to create a doubt in his mind sufficient to check the Advisory Opinions [on judicial ethics] or other relevant law," the commission held. But it noted in mitigation that the judge had been called on unexpectedly to fill in for another judge on the day of his alleged violations and may not have been aware of his firm's relationship with Mr. Pelych. Moreover, the commission observed that the judge cooperated fully with its investigation. Commission members Thomas A. Klonick, Terry Jane Ruderman, Rolando T. Acosta, Joel Cohen, Paul B. Harding, Nina M. Moore and Richard A. Stoloff joined in the majority ruling. Richard Emery and Supreme Court Justice Karen K. Peters argued that Judge Shults, an attorney since 1997, should have received the more severe penalty of a public censure. "In view of respondent's attorney-client relationship with Mr. Pelych, respondent's handling of these matters was unavoidably twinged with an appearance of impropriety," the dissenters argued. "Even if respondent believes he could be impartial in these cases, at the very least disclosing the relationship was required under the ethical guidelines."
STATE OF NEW YORK COMMISSION ON JUDICIAL CONDUCT
In the Matter of the Proceeding Pursuant to Section 44, subdivision 4, of the Judiciary Law in Relation to
DETERMINATION - DAVID A. SHULTS, a Judge of the Hornell City Court, Steuben County.
THE COMMISSION: Honorable Thomas A. Klonick, Chair; Honorable Terry Jane Ruderman, Vice Chair; Honorable Rolando T. Acosta; Joseph W. Belluck, Esq.; Joel Cohen, Esq.; Richard D. Emery, Esq.; Paul B. Harding, Esq.; Nina M. Moore; Honorable Karen K. Peters; Richard A. Stoloff, Esq.
APPEARANCES: Robert H. Tembeckjian (David M. Duguay, Of Counsel) for the Commission; Honorable David A. Shults, pro se
The respondent, David A. Shults, a Judge ofthe Hornell City Court, Steuben County, was served with a Formal Written Complaint dated February 16,2011, containing one charge. The Fonnal Written Complaint alleged that respondent presided over nine cases in which a client of his law firm represented a party. Respondent filed an undated answer on or about March 9, 2011. On June 7, 2011, the Administrator and respondent entered into an Agreed Statement of Facts pursuant to Judiciary Law §44(5), stipulating that the Commission make its determination based upon the agreed facts, recommending that respondent be admonished and waiving further submissions and oral argument. On June 16, 2011, the Commission accepted the Agreed Statement and made the following determination.
- 1. Respondent has been a Judge of the Hornell City Court, Steuben County, since 1997. His current term expires on October 26,2015. Respondent was admitted to the practice of law in New York in 1969.
- 2. Respondent is a partner in the law firm ofShults and Shults, which maintains an office in Hornell, New York.
- 3. Joseph G. Pelych, Esq., is the City Attorney of Hornell, New York and maintains a solo private law practice.
- 4. From about May 2006 to about February 2009, Mr. Pelych was a, client of respondent's law firm. Respondent's firm brought 16 actions on behalf of Mr. Pelych to recover unpaid legal fees, and obtained judgments for Mr. Pelych totaling $10,226.57 in 13 of those actions, as set forth in Schedule A to the Agreed Statement of Facts.
- 5. Respondent acknowledges that Section 100.3(E) of the Rules Governing Judicial Conduct ("Rules") obligates him to disqualify himself in a proceeding in which his impartiality might reasonably be questioned. Respondent further acknowledges that Opinions a1-71 and 89-13 of the Advisory Committee on Judicial Ethics direct that a judge must recuse when an attorney appears as counsel within two years of being a client of the judge's law firm. Where an attorney appearing before a judge was a client of the judge's law firm more than two years prior to the appearance, the judge may preside after full disclosure on the record, and in the absence of a meritorious objection.
- 6. As set forth below, respondent presided over and/or took other judicial action in nine cases in which Mr. Pelych represented a party, notwithstanding that Mr. Pelych was at the time a client of respondent's law firm.
- 7. On May 15,2008, respondent presided over eight cases in which the defendants were represented by Mr. Pelych. Respondent knew that Mr. Pelych represented the defendants in these cases and that Mr. Pelych was a client of respondent's law firm. Respondent took judicial action by accepting guilty pleas to reduced charges in four cases, granting an Adjournment in Contemplation of Dismissal in one case, and adjourning three cases, as set forth in Schedule B to the Agreed Statement of Facts.
- 8. Respondent did not disclose his relationship to Mr. Pelych or offer to disqualifY himself in any of the eight cases set forth in Schedule B.
- 9. On or about January 29, 2009, respondent was assigned to preside over Patricia Scouten v. Terry & Patricia Mann, a summary eviction proceeding in which Mr. Pelych represented the landlord/petitioner. A trial in the matter was scheduled for February 6,2009.
- 10. By letter dated January 30, 2009, the tenants' attorney, William W. Pulos, Esq., requested that respondent recuse himself from the case. Mr. Pulos argued, among other things, that "Mr. Pelych has brought cases to [respondent] and/or his law firm and/or the collection agency owned by [respondent] for either the personal representation of Mr. Pelych and/or other of Mr. Pelych's clients resulting in referrals of clients and payment of fees between them."
- 11. On or about February 2, 2009, respondent issued a Decision and Order denying Mr. Pulos' recusal request.
- 12. On February 3,2009, Mr. Pulos filed a CPLR Article 78 petition seeking a Writ of Prohibition prohibiting Mr. Pelych from representing private clients in the Hornell City Court because of his position as City Attorney and prohibiting respondent from presiding over Scouten v. Mann.
- 13. On February 3, 2009, Acting Steuben County Supreme Court Justice Peter C. Bradstreet signed a Temporary Restraining Order staying the jury trial, but not other proceedings, in Scouten v. Mann.
- 14. On February 4,2009, respondent presided over a pre-trial conference attended by Mr. Pulos and Mr. Pelych.
- 15. On February 5, 2009, Judge Bradstreet issued an oral order from the bench, disqualifying Mr. Pelych from serving as counsel in Scouten v. Mann.
- 16. On February 6,2009, Brian C. Schu, Esq., became the substituted attorney of record for the landlord/petitioner in Scouten v. Mann.
- 17. On February 6, 2009, prior to the commencement of trial in Scouten v. Mann, respondent approved a settlement proposed by the parties. The settlement was reduced to an Order which respondent executed on February 11,2009. On March 9, 2009, Judge Bradstreet dismissed the Article 78, finding, inter alia, that the settlement of the case rendered the petitioners' remaining claims moot.
- 18. On May 15, 2008, respondent was substituting for his colleague, Hornell City Court Judge Joseph E. Damrath. All defendants on the court calendar had been previously arraigned by Judge Damrath, who was the assigned judge on each matter scheduled. All of the judicial determinations made by respondent on that occasion were in accordance with dispositional recommendations made by the Steuben County District Attorney's Office, as formulated or negotiated while the matters were pending before Judge Damrath and as would have been presented to Judge Damrath had he been available to preside that day. There is no indication that respondent's judicial actions were affected by his relationship with Mr. Pelych.
- 19. Respondent has been cooperative with the Commission throughout its inquiry.
- 20. Respondent has served as a Hornell City Court Judge for 14 years and has never been disciplined for judicial misconduct. He regrets his failure to abide by the Rules in this instance and pledges to accord himself with the Rules.
In a 1976 disciplinary proceeding, the Appellate Division, Second Department, stated that handling matters involving former clients "cannot [be] countenance[d]" and might in some cases result in removal: While we realize that in small communities, part-time judges or justices, many of whom are principally engaged in the practice of the law, know many, if not most, of the people in their community, and may, in exigent circumstances, be required to preside over arraignments and bail applications, we cannot countenance the apparently prevailing practice in which such judicial officers sit in judgment in cases in which they formerly had an attorney-client relationship with the litigant. Hereafter any such conduct by a judicial officer, whether full or part-time, may well be met with removal of the offender from office. Matter ofFilipowicz, 54 AD2d 348, 350 (2d Dept 1976). Since 1988, the Advisory Committee on Judicial Ethics has issued numerous opinions reminding judges who practice law of the impropriety of handling matters involving their clients and providing specific guidelines for judges in such situations. Under these standards, ajudge's disqualification in matters involving a client of the judge's law firm is required during the representation and for two years thereafter, subject to remittal; after that time, ajudge
may preside in such matters after full disclosure on the record and in the absence of a meritorious objection (see, e.g., Adv Op 01-71,97-85,94-71,92-14,92-01,89-13). The Committee has also stated that "the same standards and guidelines [for disqualification] should apply" in matters in which the attorney in a case is a client or former client as in matters in which a party is a client (Op 01-71; see also, Op 89-13). The Commission has disciplined judges for failing to disqualify in cases involving such conflicts (see, e.g., Matter ofAison, 2010 Annual Report 62; Matter of Bruhn, 1988 Annual Report 133; Matter of Feeney, 1988 Annual Report 159; Matter of Darrigo, 2 Commission Determinations 353 [1981]). As stipulated here, respondent violated these standards by presiding over and/or taking other judicial action in eight criminal cases and one civil case in which Mr. Pelych represented a party, notwithstanding that at the time Mr. Pelych was a client of respondent's firm. Respondent did not disclose the conflict or offer to disqualify himself. In Scouten v. Mann, respondent denied a request for his recusal when an attorney objected to respondent's participation in the case, forcing the attorney to commence litigation that resulted in Mr. Pelych's disqualification. It is inexplicable why the attorney's request for respondent's recusal failed to bring to his attention that he should not be presiding, or even to create a doubt in his mind sufficient to check the Advisory Opinions or other relevant law. In view of respondent's attorney-client relationship with Mr. Pelych, respondent's handling of these matters was unavoidably tinged with an appearance of impropriety. Even if respondent believed he could be impartial in these cases, at the very least disclosing the relationship was required under the ethical guidelines. As we have previously stated, "There can be no substitute for making full disclosure on the record in order to ensure that the parties are fully aware of the pertinent facts and have an opportunity to consider whether to seek the judge's recusal" (Matter of Merrill, 2008 Annual Report 181 [Comm on Judicial Conduct]). By failing to disclose his attorney client relationship with the attorney appearing before him, respondent did not act "in a manner that promotes public confidence in the integrity and impartiality of the judiciary" (Rules, §100.2[A]). In mitigation, we note that the eight criminal cases occurred on the same date, when respondent was substituting for a colleague who was the assigned judge in those cases, and that there is no indication that respondent's judicial actions were influenced by his relationship with Mr. Pelych. We also note that respondent was cooperative with the Commission and has pledged to adhere to the Rules. By reason of the foregoing, the Commission determines that the appropriate disposition is admonition.
Judge Klonick, Judge Ruderman, Judge Acosta, Mr. Cohen, Mr. Harding, Ms. Moore and Mr. Stoloff concur. Mr. Emery and Judge Peters dissent in an opinion and vote to reject the Agreed Statement on the basis that the proposed disposition is too lenient. Mr. Belluck was not present.
CERTIFICATION It is certified that the foregoing is the determination of the State Commission on Judicial Conduct.
Dated: July 7, 2011 - Jean M. Savanyu, Esq. Clerk of the Commission, New York State Commission on Judicial Conduct
STATE OF NEW YORK COMMISSION ON JUDICIAL CONDUCT
In the Matter of the Proceeding Pursuant to Section 44, subdivision 4, of the Judiciary Law in Relation to
DAVID A. SHULTS, a Judge of the Hornell City Court, Steuben County.
DISSENTING OPINION BY MR. EMERY AND JUDGE PETERS
Put simply, respondent, a part-time judge for over a decade, had a private practice which included debt collection. The Town Attorney had cases in front of the judge. At the same time the Town Attorney hired the judge to collect debts for his own law practice. The Rules could not be clearer that a judge cannot sit on a current client's case. In fact, as the Determination points out, this violation can be grounds for removal. In this case the judge not only violated the Rules but refused to acknowledge the violation
when a litigant's attorney appearing before him pointed it out and asked him to do what was required - get off the case. Respondent's intransigence forced the litigant to go to a higher judge to order respondent to step aside. We do not believe that this conduct, in the face of a glaring and knowing violation, should be rewarded with a mere admonition. More severe discipline is mandated no matter how conveniently remorseful the judge is when the Commission institutes proceedings. Thus, he should be censured. Accordingly, we vote to reject the Agreed Statement of Facts.
Dated: July 7, 2011 - Richard D. Emery, Esq., Member, New York State Commission on Judicial Conduct; Honorable Karen K. Peters, Member, New York State Commission on Judicial Conduct
Tuesday, July 19, 2011
Pay Commission Head Floats Option of Incremental Raises
Pay Commission Head Floats Option of Incremental Raises
The New York Law Journal by Joel Stashenko - July 19, 2011
ALBANY, NY - Former City Comptroller William C. Thompson Jr., the chairman of a new state judicial pay commission, has raised the possibility of incremental pay raises in the next few years, rather than a larger one-shot hike to bring judges' pay immediately into line with inflation, according to several sources familiar with the commission's deliberations. That idea, if adopted, is unlikely to satisfy judges who have not had a raise since Jan. 1, 1999, the sources said. Mr. Thompson, who was selected by Governor Andrew M. Cuomo to chair the pay commission, has sounded out members about boosting judicial salaries in a rough schedule of 20 percent starting effective April 1, and then smaller raises of 10 percent in each of 2013-2014 and 2014-15. Mr. Thompson did not respond yesterday to calls for comment, nor had representatives of Mr. Cuomo returned calls. The commission will hold its only public hearing beginning at 11 a.m. tomorrow in Hearing Room B of the Legislative Office Building in Albany. A link to a webcast will be posted at www.judicialcompensation.ny.gov. The agency was appointed by the governor, legislative leaders and Chief Judge Jonathan Lippman earlier this year to set new salaries for some 1,200 state judges (NYLJ, Dec. 1, 2010). The court system has recommended a pay raise of at least 40 percent in the 2012-13 fiscal year, which would match the rate of inflation since 1999 (NYLJ, July 12). An organization of state judges and two bar organizations have recommended similar amounts (NYLJ, July 14). Mr. Thompson and others may calculate that it would be difficult to sell a raise of that magnitude at a time when the state's economy is lagging and Mr. Cuomo has been calling for sacrifices. But one judge familiar with the quest for a pay raise, who asked not to be identified because he did not want to antagonize the pay commission, said judges would be "up in arms" if it recommended a pay raise of only 20 percent. A former judge, Robert A. Spolzino, agreed that a middling initial salary increase recommendation of about 20 percent would "absolutely" be seen as a slap in the face to judges. "So what you are going to say is that after four or five more years you will bring them up to a point where they were against inflation 18 years ago?" Mr. Spolzino said. "That's insanity." Mr. Spolzino, who resigned from the Appellate Division, Second Department, bench two years ago (NYLJ, Aug. 4, 2009) to join Wilson Elser Moskowitz Edelman & Dicker to better provide for his family, will testify at the commission's hearing. Mr. Spolzino said he will explain that while he is making more money at Wilson Elser, he is not working harder. He will argue that state judges have been deprived long enough of a "decent" wage.
Scheduled to Appear
Others scheduled to appear before the pay commission are Chief Administrative Judge Ann Pfau; Victor Kovner, the former head of Fund for Modern Courts; and representatives of judicial associations, including Cortland County state Supreme Court Justice Phillip R. Rumsey, head of the state Supreme Court Justices' Association; and Brooklyn Family Court Judge Daniel Turbow, head of New York City Family Court Judges' Association. W. Dennis Duggan, past president of the state Family Court Judges' Association, said he will argue that as tough as it might be for members of the commission to approve a significant pay raise given the economic times, no other group of state employees has gone longer than judges have without a raise, except for state legislators or the governor and other top-ranking members of the governor's administration. Commission members "read the papers and they know that we are asking for a very large [salary] parity increase in the worst economic times since the Great Depression," Judge Duggan said yesterday. Judge Duggan said former Court of Appeals judge Howard Levine, now with Whiteman, Osterman & Hanna, would appear on behalf of a 12-association coalition of judges to argue that their members are deserving of a pay raise. Mr. Levine is one of the most highly regarded former judges in the state system, as is Judith Kaye, now of Skadden, Arps, Slate, Meagher & Flom, the former chief judge, who is also expected to testify on behalf of a judicial pay raise. Stewart D. Aaron, of Arnold & Porter, the new president of the New York County Lawyers' Association, will also appear as will state bar president Vincent E. Doyle III of Connors & Villardo in Buffalo. City Corporation Counsel Michael Cardozo also will support the call for a large immediate raise. The Center of Judicial Accountability, a citizens group, is expected to oppose any raise. The pay commission has until Aug. 29 to report to the governor and Legislature on its recommendations for judges' pay adjustments. If the Legislature does not alter the proposals, they go into effect on April 1. Joel Stashenko can be reached at jstashenko@alm.com.
The New York Law Journal by Joel Stashenko - July 19, 2011
ALBANY, NY - Former City Comptroller William C. Thompson Jr., the chairman of a new state judicial pay commission, has raised the possibility of incremental pay raises in the next few years, rather than a larger one-shot hike to bring judges' pay immediately into line with inflation, according to several sources familiar with the commission's deliberations. That idea, if adopted, is unlikely to satisfy judges who have not had a raise since Jan. 1, 1999, the sources said. Mr. Thompson, who was selected by Governor Andrew M. Cuomo to chair the pay commission, has sounded out members about boosting judicial salaries in a rough schedule of 20 percent starting effective April 1, and then smaller raises of 10 percent in each of 2013-2014 and 2014-15. Mr. Thompson did not respond yesterday to calls for comment, nor had representatives of Mr. Cuomo returned calls. The commission will hold its only public hearing beginning at 11 a.m. tomorrow in Hearing Room B of the Legislative Office Building in Albany. A link to a webcast will be posted at www.judicialcompensation.ny.gov. The agency was appointed by the governor, legislative leaders and Chief Judge Jonathan Lippman earlier this year to set new salaries for some 1,200 state judges (NYLJ, Dec. 1, 2010). The court system has recommended a pay raise of at least 40 percent in the 2012-13 fiscal year, which would match the rate of inflation since 1999 (NYLJ, July 12). An organization of state judges and two bar organizations have recommended similar amounts (NYLJ, July 14). Mr. Thompson and others may calculate that it would be difficult to sell a raise of that magnitude at a time when the state's economy is lagging and Mr. Cuomo has been calling for sacrifices. But one judge familiar with the quest for a pay raise, who asked not to be identified because he did not want to antagonize the pay commission, said judges would be "up in arms" if it recommended a pay raise of only 20 percent. A former judge, Robert A. Spolzino, agreed that a middling initial salary increase recommendation of about 20 percent would "absolutely" be seen as a slap in the face to judges. "So what you are going to say is that after four or five more years you will bring them up to a point where they were against inflation 18 years ago?" Mr. Spolzino said. "That's insanity." Mr. Spolzino, who resigned from the Appellate Division, Second Department, bench two years ago (NYLJ, Aug. 4, 2009) to join Wilson Elser Moskowitz Edelman & Dicker to better provide for his family, will testify at the commission's hearing. Mr. Spolzino said he will explain that while he is making more money at Wilson Elser, he is not working harder. He will argue that state judges have been deprived long enough of a "decent" wage.
Scheduled to Appear
Others scheduled to appear before the pay commission are Chief Administrative Judge Ann Pfau; Victor Kovner, the former head of Fund for Modern Courts; and representatives of judicial associations, including Cortland County state Supreme Court Justice Phillip R. Rumsey, head of the state Supreme Court Justices' Association; and Brooklyn Family Court Judge Daniel Turbow, head of New York City Family Court Judges' Association. W. Dennis Duggan, past president of the state Family Court Judges' Association, said he will argue that as tough as it might be for members of the commission to approve a significant pay raise given the economic times, no other group of state employees has gone longer than judges have without a raise, except for state legislators or the governor and other top-ranking members of the governor's administration. Commission members "read the papers and they know that we are asking for a very large [salary] parity increase in the worst economic times since the Great Depression," Judge Duggan said yesterday. Judge Duggan said former Court of Appeals judge Howard Levine, now with Whiteman, Osterman & Hanna, would appear on behalf of a 12-association coalition of judges to argue that their members are deserving of a pay raise. Mr. Levine is one of the most highly regarded former judges in the state system, as is Judith Kaye, now of Skadden, Arps, Slate, Meagher & Flom, the former chief judge, who is also expected to testify on behalf of a judicial pay raise. Stewart D. Aaron, of Arnold & Porter, the new president of the New York County Lawyers' Association, will also appear as will state bar president Vincent E. Doyle III of Connors & Villardo in Buffalo. City Corporation Counsel Michael Cardozo also will support the call for a large immediate raise. The Center of Judicial Accountability, a citizens group, is expected to oppose any raise. The pay commission has until Aug. 29 to report to the governor and Legislature on its recommendations for judges' pay adjustments. If the Legislature does not alter the proposals, they go into effect on April 1. Joel Stashenko can be reached at jstashenko@alm.com.
Monday, July 18, 2011
The Judicial Pay-Raise Fix Is In, Make Believe Debate Continues
Commission to Set Raises for Judges in New York State Is Flooded With Suggestions
The New York Times by William Glaberson - July 18, 2011
What is the price of administering justice? That may sound like an existential question. But for a state panel beginning its task of setting salaries for New York’s judges, the issue is less of soaring philosophical debate than of convoluted calculations. Would $220,836 be the proper salary for a judge who now earns $136,700, as one argument filed with the commission suggested? What about $195,754? The seven members of the commission indicated last week in their first meeting that they thought their summer math-immersion course would put an end to one of the longest-running arguments in Albany, where state judges, numbering more than 1,200, have been lodging complaints about their pay for years. The panel, the Judicial Compensation Commission, was created last year after the Legislature had failed for 12 years to agree on a raise for judges. Its decision, due in August, is to have the force of law unless overturned by the Legislature and the governor. William C. Thompson Jr., the panel’s chairman and a former New York City comptroller, told the commissioners that they should assume that their conclusion “on the level of compensation for judges is going to be the level of compensation.” The commission will hold its first — and probably only — public hearing on Wednesday in Albany. As a result, its members, appointed by the governor, legislative leaders and the state’s chief judge, are being inundated with formulas and charts. The suggestions include every manner of numerical calculation, with most using as a point of reference the current $136,700 salary of State Supreme Court justices, who handle a wide range of cases, including murder cases and malpractice trials, and whose pay would have risen 41 percent if they had received raises to keep pace with inflation, according to one filing. Each interest group had its own math. The New York City Bar Association argued that given how expensive it is to live in New York City, Supreme Court justices would have to earn $212,000 to be paid in line with the salaries of other big-city judges across the country. The New York County Lawyers’ Association did another calculation: a $60,000 raise “would increase the state budget by less than 55 one-thousandths of one percent.” Not to be outdone, a coalition of 12 judges’ organizations put forth 50 facts justifying a big raise, including salaries in New York City’s Sanitation Department: 50 employees in the department earn more than almost all New York judges and nearly as much as the state’s chief judge, Jonathan Lippman. Judge Lippman makes $156,000; an intermediate appeals judge makes $144,000; a criminal court judge makes $125,600. The commissioners said they would keep in place the comparative differences for the various levels of the courts. One commission member, Mark S. Mulholland, a Long Island lawyer, said in an interview that there were numbers of formulas that people were using to make their cases. But he insisted he was not overwhelmed by numbers as lawyers sometimes are. “I actually did well in math,” he said. Officials at the state’s Office of Court Administration presented the commissioners with their own ways of looking at the numbers, including a comparison of New York’s judicial salaries with the salaries of judges in other states. New York came in dead last. The court administrators suggested setting the salary for a State Supreme Court justice between $192,000 and $220,000, a range seemingly intended to give the commission ample leeway to grant a big raise. If, for example, the commission chose a salary less than $192,000, it could appear fiscally responsible even as it doled out raises of 30 percent or so. For much of the past dozen years, the discussion of judicial salaries has not drawn much passion. But with the commission tackling the issue at a time of state budget problems, the idea of increasing any state salaries is not popular. State Senator John J. Bonacic, a Republican who is chairman of the Judiciary Committee, said in an interview that a raise to $220,000 for judges “may not be consistent with the tough environment that’s going on right now.” He said that in some areas of the state “if a vacancy occurred, you would have lawyers lining up for Supreme Court at the current salary.” In the media and on the Internet, the prospect of a big judicial raise is beginning to draw fiery comments. Judges deserve a raise, “but 62 percent in one shot?” The New York Post asked in an editorial last week after the court administration officials had filed their submission. “No way,” the paper commented. David Bookstaver, the spokesman for the court system, said the proposal offered the commission a range of salary possibilities based on factors set forth in the law. As for the criticism, Mr. Bookstaver called it “a mischaracterization of our submission.” During the panel’s meeting last week, three of the seven commissioners appeared ready to grant judges a large raise quickly, two did not suggest views and two said the size of any raise had to be limited by the state’s fiscal troubles. “How much can the state afford?” asked Bill Mulrow, who was appointed by Gov. Andrew M. Cuomo. In the filings, the formulas and calculations are stitched together with arguments. So far, the most ardent — and the wordiest— is the one by the judicial associations, which runs 247 pages. “When someone finds out that you are a judge,” it said, “and you have not had a raise in over 12 years, most people say, ‘That’s crazy.’ ”
The New York Times by William Glaberson - July 18, 2011
What is the price of administering justice? That may sound like an existential question. But for a state panel beginning its task of setting salaries for New York’s judges, the issue is less of soaring philosophical debate than of convoluted calculations. Would $220,836 be the proper salary for a judge who now earns $136,700, as one argument filed with the commission suggested? What about $195,754? The seven members of the commission indicated last week in their first meeting that they thought their summer math-immersion course would put an end to one of the longest-running arguments in Albany, where state judges, numbering more than 1,200, have been lodging complaints about their pay for years. The panel, the Judicial Compensation Commission, was created last year after the Legislature had failed for 12 years to agree on a raise for judges. Its decision, due in August, is to have the force of law unless overturned by the Legislature and the governor. William C. Thompson Jr., the panel’s chairman and a former New York City comptroller, told the commissioners that they should assume that their conclusion “on the level of compensation for judges is going to be the level of compensation.” The commission will hold its first — and probably only — public hearing on Wednesday in Albany. As a result, its members, appointed by the governor, legislative leaders and the state’s chief judge, are being inundated with formulas and charts. The suggestions include every manner of numerical calculation, with most using as a point of reference the current $136,700 salary of State Supreme Court justices, who handle a wide range of cases, including murder cases and malpractice trials, and whose pay would have risen 41 percent if they had received raises to keep pace with inflation, according to one filing. Each interest group had its own math. The New York City Bar Association argued that given how expensive it is to live in New York City, Supreme Court justices would have to earn $212,000 to be paid in line with the salaries of other big-city judges across the country. The New York County Lawyers’ Association did another calculation: a $60,000 raise “would increase the state budget by less than 55 one-thousandths of one percent.” Not to be outdone, a coalition of 12 judges’ organizations put forth 50 facts justifying a big raise, including salaries in New York City’s Sanitation Department: 50 employees in the department earn more than almost all New York judges and nearly as much as the state’s chief judge, Jonathan Lippman. Judge Lippman makes $156,000; an intermediate appeals judge makes $144,000; a criminal court judge makes $125,600. The commissioners said they would keep in place the comparative differences for the various levels of the courts. One commission member, Mark S. Mulholland, a Long Island lawyer, said in an interview that there were numbers of formulas that people were using to make their cases. But he insisted he was not overwhelmed by numbers as lawyers sometimes are. “I actually did well in math,” he said. Officials at the state’s Office of Court Administration presented the commissioners with their own ways of looking at the numbers, including a comparison of New York’s judicial salaries with the salaries of judges in other states. New York came in dead last. The court administrators suggested setting the salary for a State Supreme Court justice between $192,000 and $220,000, a range seemingly intended to give the commission ample leeway to grant a big raise. If, for example, the commission chose a salary less than $192,000, it could appear fiscally responsible even as it doled out raises of 30 percent or so. For much of the past dozen years, the discussion of judicial salaries has not drawn much passion. But with the commission tackling the issue at a time of state budget problems, the idea of increasing any state salaries is not popular. State Senator John J. Bonacic, a Republican who is chairman of the Judiciary Committee, said in an interview that a raise to $220,000 for judges “may not be consistent with the tough environment that’s going on right now.” He said that in some areas of the state “if a vacancy occurred, you would have lawyers lining up for Supreme Court at the current salary.” In the media and on the Internet, the prospect of a big judicial raise is beginning to draw fiery comments. Judges deserve a raise, “but 62 percent in one shot?” The New York Post asked in an editorial last week after the court administration officials had filed their submission. “No way,” the paper commented. David Bookstaver, the spokesman for the court system, said the proposal offered the commission a range of salary possibilities based on factors set forth in the law. As for the criticism, Mr. Bookstaver called it “a mischaracterization of our submission.” During the panel’s meeting last week, three of the seven commissioners appeared ready to grant judges a large raise quickly, two did not suggest views and two said the size of any raise had to be limited by the state’s fiscal troubles. “How much can the state afford?” asked Bill Mulrow, who was appointed by Gov. Andrew M. Cuomo. In the filings, the formulas and calculations are stitched together with arguments. So far, the most ardent — and the wordiest— is the one by the judicial associations, which runs 247 pages. “When someone finds out that you are a judge,” it said, “and you have not had a raise in over 12 years, most people say, ‘That’s crazy.’ ”
Sunday, July 17, 2011
Fraud By Legal Community Set to Rise
NY tops in out-of-work lawyers
The New York Post by Michael Billy - July 17, 2011
A law degree may not be worth the paper it's printed on. New York state has the largest surplus of attorneys in the nation, with more than four times as many legal eaglets passing the bar exam as there are available law jobs, according to data firm Economic Modeling Specialists. The total glut of lawyers last year was 7,687. California was a distant second, with a surplus of 2,951. "Applicants flock to law school, but they don't know the statistics," said Dewitt Liu, a 2008 Syracuse University Law School grad who now works in real estate.
The New York Post by Michael Billy - July 17, 2011
A law degree may not be worth the paper it's printed on. New York state has the largest surplus of attorneys in the nation, with more than four times as many legal eaglets passing the bar exam as there are available law jobs, according to data firm Economic Modeling Specialists. The total glut of lawyers last year was 7,687. California was a distant second, with a surplus of 2,951. "Applicants flock to law school, but they don't know the statistics," said Dewitt Liu, a 2008 Syracuse University Law School grad who now works in real estate.
Saturday, July 16, 2011
Law Partner Resigns in Wake of Child Porn Charges
Allen & Overy Partner Resigns in Wake of Child Porn Charges
The New York Law Journal by Brian Baxter - July 18, 2011
An Allen & Overy partner in New York resigned from the firm on Friday after federal prosecutors in New Jersey charged him with distributing child pornography. Edward M. De Sear, 65, of Saddle River, N.J., appeared before U.S. Magistrate Judge Madeline Cox Arleo in Newark on Thursday. He was released on $250,000 bond and ordered to wear an electronic monitoring device, according to a press release from the New Jersey U.S. Attorney's Office. Mr. De Sear is charged with one count of distribution of child pornography for allegedly downloading and distributing videos and other images going back to Sept. 16, 2010, according to a statement by federal prosecutors. The government's graphic four-page criminal complaint states that federal investigators downloaded the images from a computer hard drive belonging to Mr. De Sear. (CLICK HERE TO READ THE FEDEAL COMPLAINT)
A spokesman for London-based Allen & Overy on Friday said that Mr. De Sear had left the firm. "Everyone has been shocked and appalled by the news that a lawyer in our New York office…has been criminally charged by federal prosecutors…after being arrested at his home," the spokesman said. "He has resigned from the firm. This is now subject to a federal investigation so we cannot make any further comment." One of Mr. De Sear's lawyers, Michael Critchley Jr., of Critchely, Kinum & Vazquez, in Roseland, N.J., declined to comment on the case. Mr. De Sear is also represented by John Vazquez of the same firm. Mr. De Sear joined Allen & Overy in August from Bingham McCutchen. He became a member of that firm after its merger with McKee Nelson in June 2009. According to his LinkedIn profile, Mr. De Sear also is a former partner of Orrick, Herrington & Sutcliffe (1993 to 2003) and Milbank, Tweed, Hadley & McCoy (1988 to 1993). The case against Mr. De Sear is being prosecuted by Shirley Emehelu, an assistant U.S. attorney with the general crimes unit in Newark and a former Debevoise & Plimpton associate. If convicted, Mr. De Sear faces a maximum of 20 years in prison and a $250,000 fine. Mr. De Sear is the third lawyer in recent months to run into problems with child pornography. Last month, former Gibson, Dunn & Crutcher associate Moshe Gerstein was one of a number of people charged in a sweeping child pornography sting conducted by federal prosecutors in Manhattan (NYLJ, June 15). Mr. Gerstein was later found dead in Mexico (NYLJ, June 24). And Joshua Gessler, a former lawyer in Arnold & Porter's Northern Virginia office, lost his law license last month after he was charged in August 2010 with possessing and producing child pornography. Mr. Gessler pleaded guilty in March to six sexual offenses involving a 15-year-old girl, according to news reports. Brian Baxter, a reporter at The American Lawyer, an affiliate publication, can be contacted at bbaxter@alm.com. (CLICK HERE TO READ THE U.S. ATTORNEY'S STATEMENT ON THE ARREST)
The New York Law Journal by Brian Baxter - July 18, 2011
An Allen & Overy partner in New York resigned from the firm on Friday after federal prosecutors in New Jersey charged him with distributing child pornography. Edward M. De Sear, 65, of Saddle River, N.J., appeared before U.S. Magistrate Judge Madeline Cox Arleo in Newark on Thursday. He was released on $250,000 bond and ordered to wear an electronic monitoring device, according to a press release from the New Jersey U.S. Attorney's Office. Mr. De Sear is charged with one count of distribution of child pornography for allegedly downloading and distributing videos and other images going back to Sept. 16, 2010, according to a statement by federal prosecutors. The government's graphic four-page criminal complaint states that federal investigators downloaded the images from a computer hard drive belonging to Mr. De Sear. (CLICK HERE TO READ THE FEDEAL COMPLAINT)
A spokesman for London-based Allen & Overy on Friday said that Mr. De Sear had left the firm. "Everyone has been shocked and appalled by the news that a lawyer in our New York office…has been criminally charged by federal prosecutors…after being arrested at his home," the spokesman said. "He has resigned from the firm. This is now subject to a federal investigation so we cannot make any further comment." One of Mr. De Sear's lawyers, Michael Critchley Jr., of Critchely, Kinum & Vazquez, in Roseland, N.J., declined to comment on the case. Mr. De Sear is also represented by John Vazquez of the same firm. Mr. De Sear joined Allen & Overy in August from Bingham McCutchen. He became a member of that firm after its merger with McKee Nelson in June 2009. According to his LinkedIn profile, Mr. De Sear also is a former partner of Orrick, Herrington & Sutcliffe (1993 to 2003) and Milbank, Tweed, Hadley & McCoy (1988 to 1993). The case against Mr. De Sear is being prosecuted by Shirley Emehelu, an assistant U.S. attorney with the general crimes unit in Newark and a former Debevoise & Plimpton associate. If convicted, Mr. De Sear faces a maximum of 20 years in prison and a $250,000 fine. Mr. De Sear is the third lawyer in recent months to run into problems with child pornography. Last month, former Gibson, Dunn & Crutcher associate Moshe Gerstein was one of a number of people charged in a sweeping child pornography sting conducted by federal prosecutors in Manhattan (NYLJ, June 15). Mr. Gerstein was later found dead in Mexico (NYLJ, June 24). And Joshua Gessler, a former lawyer in Arnold & Porter's Northern Virginia office, lost his law license last month after he was charged in August 2010 with possessing and producing child pornography. Mr. Gessler pleaded guilty in March to six sexual offenses involving a 15-year-old girl, according to news reports. Brian Baxter, a reporter at The American Lawyer, an affiliate publication, can be contacted at bbaxter@alm.com. (CLICK HERE TO READ THE U.S. ATTORNEY'S STATEMENT ON THE ARREST)
Friday, July 15, 2011
CJA: No Pay Raises For Judges Who Corrupt Justice
NO PAY RAISES FOR JUDGES WHO CORRUPT JUSTICE!
The Center for Judicial Accountability (CJA) - July 14, 2011
Originally Posted July 14th, updated July 15, 2011
The Center for Judicial Accountability, Inc. (CJA), a non-partisan, non-profit citizens’ organization has asked exposecorruptcourts to spread the word. Victims of judicial corruption have a powerful opportunity to vindicate their own rights and advance reform by testifying in opposition to pay raises for corrupt New York judges at a hearing to be held by New York’s Judicial Compensation Commission on Wednesday, July 20th in Albany. Learn more about this opportunity from CJA’s website, www.judgewatch.org, whose webpage dedicated to the judicial compensation issue is accessible via the top panel “Latest News”. The direct link is http://www.judgewatch.org/web-pages/judicial-compensation/nys-judicial-compensation.htm. It posts CJA’s correspondence to New York’s leadership and to the Judicial Compensation Commission opposing ANY pay raises for New York judges until mechanisms are in place and functioning to remove corrupt judges. Contact CJA director Elena Sassower for further details – and about what you can do to help CJA build a Citizens’ Taxpayer Revolt Against Pay Raises for New York Judges. Elena can be reached at 718-708-5303 and elena@judgewatch.org.
The Center for Judicial Accountability (CJA) - July 14, 2011
Originally Posted July 14th, updated July 15, 2011
The Center for Judicial Accountability, Inc. (CJA), a non-partisan, non-profit citizens’ organization has asked exposecorruptcourts to spread the word. Victims of judicial corruption have a powerful opportunity to vindicate their own rights and advance reform by testifying in opposition to pay raises for corrupt New York judges at a hearing to be held by New York’s Judicial Compensation Commission on Wednesday, July 20th in Albany. Learn more about this opportunity from CJA’s website, www.judgewatch.org, whose webpage dedicated to the judicial compensation issue is accessible via the top panel “Latest News”. The direct link is http://www.judgewatch.org/web-pages/judicial-compensation/nys-judicial-compensation.htm. It posts CJA’s correspondence to New York’s leadership and to the Judicial Compensation Commission opposing ANY pay raises for New York judges until mechanisms are in place and functioning to remove corrupt judges. Contact CJA director Elena Sassower for further details – and about what you can do to help CJA build a Citizens’ Taxpayer Revolt Against Pay Raises for New York Judges. Elena can be reached at 718-708-5303 and elena@judgewatch.org.
Ex-Kirkland & Ellis Partner Pleads Not Guilty to Tax Fraud
Ex-Kirkland & Ellis Partner Pleads Not Guilty to Tax Fraud
The New York Law Journal by Mark Hamblett - July 15, 2011
Bankruptcy specialist Theodore L. Freedman, who resigned from the firm in October, was indicted yesterday on charges he misrepresented more than $2 million in income from the firm. The 63-year-old Northwestern University Law School graduate also was accused of claiming over $542,358 in expenses for a non-existent sole proprietorship law practice.
Former Kirkland & Ellis senior partner Theodore L. Freedman was indicted yesterday on charges he misrepresented more than $2 million in income from the firm. Mr. Freedman, a bankruptcy specialist who resigned from the firm in October, was charged with four counts of income tax fraud. He pleaded not guilty to all counts before Southern District Magistrate Judge James C. Francis. The 63-year-old Northwestern University Law School graduate also was accused of claiming over $542,358 in expenses for a non-existent sole proprietorship law practice. He surrendered to agents of the Internal Revenue Service at around 8 a.m. yesterday morning following a lengthy investigation. In a statement, Southern District U.S. Attorney Preet Bharara called Mr. Freedman "an accomplished and well-compensated attorney" who "abdicated his legal and ethical responsibilities by cheating on his taxes." According to the government, the IRS form that reports an individual partner's share of income or loss showed Mr. Freedman's total income for calendar years 2001 through 2004 to be $5,388,699. Mr. Freedman, who prepared, signed and filed his taxes himself, under-reported his income during those years by $2,097,211, prosecutors said. All told, his returns resulted in a tax loss to the IRS of $1,013,061. The indictment alleges that he used the address of Kirkland & Ellis' office as his address for his fictitious solo practice. Should Mr. Freedman be convicted, he faces a maximum of three years in prison on each of the four counts. A spokeswoman for Kirkland & Ellis said the firm would not comment because "we understand that the federal indictment relates exclusively to Mr. Freedman's personal conduct." Mr. Freedman is represented by Robert Cleary of Proskauer Rose. Mr. Cleary told the court yesterday that the investigation into his client has "been going on for at least four years" and he has been in "active, regular discussion regarding this case" for years with the government. Mr. Freedman handled numerous cases over his years as part of Kirkland & Ellis' restructuring department, working as a debtor's attorney for several companies, including Gaylord Container Corp., Navistar Corp. and Continental Bank. He is admitted to practice in the Northern District of Illinois, where he worked as an arbitrator for the Chicago Board Options Exchange; the District of Columbia; and in New York, where he is a one-time member of the Bankruptcy and Corporate Reorganization Committee of the New York City Bar. Assistant U.S. Attorney E. Danya Perry is prosecuting the case for the government. Mr. Freedman, a resident of Dutchess County, was released on his own signature yesterday with a promise to return to court in two weeks and post a $100,000 personal recognizance bond secured by $50,000 in cash. He was also ordered to surrender his passport. He is scheduled to appear again at a Sept. 19 pretrial conference before Judge Deborah A. Batts. Both Mr. Freedman and Mr. Cleary declined comment. Mark Hamblett can be contacted at mhamblett@alm.com.
The New York Law Journal by Mark Hamblett - July 15, 2011
Bankruptcy specialist Theodore L. Freedman, who resigned from the firm in October, was indicted yesterday on charges he misrepresented more than $2 million in income from the firm. The 63-year-old Northwestern University Law School graduate also was accused of claiming over $542,358 in expenses for a non-existent sole proprietorship law practice.
Former Kirkland & Ellis senior partner Theodore L. Freedman was indicted yesterday on charges he misrepresented more than $2 million in income from the firm. Mr. Freedman, a bankruptcy specialist who resigned from the firm in October, was charged with four counts of income tax fraud. He pleaded not guilty to all counts before Southern District Magistrate Judge James C. Francis. The 63-year-old Northwestern University Law School graduate also was accused of claiming over $542,358 in expenses for a non-existent sole proprietorship law practice. He surrendered to agents of the Internal Revenue Service at around 8 a.m. yesterday morning following a lengthy investigation. In a statement, Southern District U.S. Attorney Preet Bharara called Mr. Freedman "an accomplished and well-compensated attorney" who "abdicated his legal and ethical responsibilities by cheating on his taxes." According to the government, the IRS form that reports an individual partner's share of income or loss showed Mr. Freedman's total income for calendar years 2001 through 2004 to be $5,388,699. Mr. Freedman, who prepared, signed and filed his taxes himself, under-reported his income during those years by $2,097,211, prosecutors said. All told, his returns resulted in a tax loss to the IRS of $1,013,061. The indictment alleges that he used the address of Kirkland & Ellis' office as his address for his fictitious solo practice. Should Mr. Freedman be convicted, he faces a maximum of three years in prison on each of the four counts. A spokeswoman for Kirkland & Ellis said the firm would not comment because "we understand that the federal indictment relates exclusively to Mr. Freedman's personal conduct." Mr. Freedman is represented by Robert Cleary of Proskauer Rose. Mr. Cleary told the court yesterday that the investigation into his client has "been going on for at least four years" and he has been in "active, regular discussion regarding this case" for years with the government. Mr. Freedman handled numerous cases over his years as part of Kirkland & Ellis' restructuring department, working as a debtor's attorney for several companies, including Gaylord Container Corp., Navistar Corp. and Continental Bank. He is admitted to practice in the Northern District of Illinois, where he worked as an arbitrator for the Chicago Board Options Exchange; the District of Columbia; and in New York, where he is a one-time member of the Bankruptcy and Corporate Reorganization Committee of the New York City Bar. Assistant U.S. Attorney E. Danya Perry is prosecuting the case for the government. Mr. Freedman, a resident of Dutchess County, was released on his own signature yesterday with a promise to return to court in two weeks and post a $100,000 personal recognizance bond secured by $50,000 in cash. He was also ordered to surrender his passport. He is scheduled to appear again at a Sept. 19 pretrial conference before Judge Deborah A. Batts. Both Mr. Freedman and Mr. Cleary declined comment. Mark Hamblett can be contacted at mhamblett@alm.com.
Thursday, July 14, 2011
Judge Gives Some Hope to Return to Ethics
Queens judge steps down from accused hubby-killer Sheehan case
The New York Post by Christina Carrega - July 12, 2011
A Queens judge has stepped down from the murder trial of accused hubby-killer Barbara Sheehan because defense lawyers argued he has a conflict of interest — his daughter is a prosecutor in the Queens DA’s office that is handling the case. Lawyer Michael Dowd raised the question of whether or not Queens Supreme Court Justice Richard Buchter would be fair because his daughter, Rachel, is a Queens prosecutor, even though she is not handling this case. Dowd later retracted his thoughts, but Buchter, not wanting to take any chances since the issue had been raised, decided to step down anyway. Sheehan is accused of pumping 11 shots into her ex-cop husband, Raymond, in their Howard Beach home on February 18, 2008 after years of alleged domestic abuse. With a new judge, it gives Dowd a third chance to file a renewed motion for the battered woman defense that retired Judge Arthur Cooperman denied in 2009 because Sheehan missed a court-ordered exam. Judge Buchter had been reviewing the motion, Dowd said. "I’ve had a history of handling high profile cases, murder cases, I’ve dismissed cases and I’ve shown nothing but fairness," Buchter said tod ay. "This is the first time I’ve ever recused myself. "Once it was raised, it can’t be unsaid. Its like the sword of Damocles hanging over my head," the judge said about his decision to take himself off the case. Sheehan’s trial was set to begin in September, but now the decision as to who the new judge will be is up in the air until July 26. It will be between the administrative judge Queens Supreme Court Justice Fernando Camacho or Queens Supreme Court Justice Robert McGann.
The New York Post by Christina Carrega - July 12, 2011
A Queens judge has stepped down from the murder trial of accused hubby-killer Barbara Sheehan because defense lawyers argued he has a conflict of interest — his daughter is a prosecutor in the Queens DA’s office that is handling the case. Lawyer Michael Dowd raised the question of whether or not Queens Supreme Court Justice Richard Buchter would be fair because his daughter, Rachel, is a Queens prosecutor, even though she is not handling this case. Dowd later retracted his thoughts, but Buchter, not wanting to take any chances since the issue had been raised, decided to step down anyway. Sheehan is accused of pumping 11 shots into her ex-cop husband, Raymond, in their Howard Beach home on February 18, 2008 after years of alleged domestic abuse. With a new judge, it gives Dowd a third chance to file a renewed motion for the battered woman defense that retired Judge Arthur Cooperman denied in 2009 because Sheehan missed a court-ordered exam. Judge Buchter had been reviewing the motion, Dowd said. "I’ve had a history of handling high profile cases, murder cases, I’ve dismissed cases and I’ve shown nothing but fairness," Buchter said tod ay. "This is the first time I’ve ever recused myself. "Once it was raised, it can’t be unsaid. Its like the sword of Damocles hanging over my head," the judge said about his decision to take himself off the case. Sheehan’s trial was set to begin in September, but now the decision as to who the new judge will be is up in the air until July 26. It will be between the administrative judge Queens Supreme Court Justice Fernando Camacho or Queens Supreme Court Justice Robert McGann.
Wednesday, July 13, 2011
Feds Ask Judge To Review Actions of Defense Attorney
Feds ask judge to review defense lawyer in hip hop mogul drug case
The New York Post by Mitchel Maddux - July 12, 2011
Federal prosecutors say a defense attorney for hip hop music producer James Rosemond served as "house counsel" for the rapper's alleged cocaine empire.
The feds say Jeffery Lichtman's involvement in defending the rap producer in his upcoming drug distribution trial may pose potential conflicts of interest and asked a Brooklyn federal judge to review the matter. However, the feds make no allegations of any criminal wrongdoing . Prosecutors say the attorney accepted approximately $150,000 in cash from Rosemond to pay for legal services, but the feds acknowledge that the defense attorney filled out required IRS forms. Lichtman countered that transaction was above board - he deposited money in a bank and submitted required government documents. The attorney also denied a suggestion that he tried to find out if a man allegedly involved in the cocaine trafficking enterprise was cooperating with the feds. Prosecutors also pointed out that Lichtman represented others charged in the coke case, which they say creates a conflict of interest - although the defense attorney disagreed. Lichtman, a prominent Manhattan defense lawyer, insisted that he's done nothing wrong and offered to take a lie detector case. He charged that the feds have an ulterior motive in filing the letter with Judge John Gleeson. "This is a transparent and desperate attempt to get me off a case," Lichtman said. Shortly before Rosemond's arrest last month, a man serving life in prison claimed that the music producer was involved in an attempt to kill rapper Tupac Shakur. Dexter Isaac claimed he shot Tupac in 1994 at the direction of Rosemond during the bloody East-West war that then defined hip-hop culture. In a statement posted on AllHipHop.com, Isaac apologized for the infamous near-fatal attack. Tupac -- who was born in East Harlem but made his career in Northern California -- survived the attack, only to be shot dead on Sept. 13, 1996, in Las Vegas. Lichtman has said that Issac is simply a convicted killer who is spinning a tale. mmaddux@nypost.com
-------- RELATED STORY:
U.S. Tries to Remove Hip-Hop Mogul's Counsel in Drug Case
The New York Law Journal by Daniel Wise - July 13, 2011
The Eastern District U.S. Attorney's Office did not accuse Jeffrey Lichtman of engaging in any of the crimes charged against his client, but asked Judge John Gleeson to bar him as James Rosemond's lawyer based on Mr. Lichtman's multiple conflicting prior representations, his role as a "critical link" in his client's scheme to block a witness from cooperating and his acceptance of $150,000 in cash as fees.
Federal prosecutors in Brooklyn moved Monday to kick one of New York's most prominent defense lawyers off the case of a hip-hop mogul who is accused of operating a $10 million-a-year bi-coastal cocaine operation. The Eastern District U.S. Attorney's Office claims that Jeffrey Lichtman was house counsel to a drug-trafficking enterprise run by James Rosemond, whose talent management company represents Game and other well-known hip-hop artists. Mr. Lichtman, in an interview, brushed off the government's motion as an "almost laughable" attempt to tar him with wrongdoing "for ethical and legal" steps he had taken to defend Mr. Rosemond. In seeking Mr. Lichtman's removal for conflicts of interest, prosecutors also described him as a "critical link" in Mr. Rosemond's scheme to block a witness from cooperating with the government. The U.S. in United States v. Rosemond, 11-cr-424, did not accuse Mr. Lichtman of engaging in any of the crimes charged against Mr. Rosemond, including obstruction of justice, which would have required Judge John Gleeson, who presides over the case against Mr. Rosemond and four other defendants, to disqualify Mr. Lichtman. Instead, citing multiple conflicting prior representations, including Mr. Lichtman's alleged role as house counsel, his factual knowledge relating to the obstruction of justice count against his client and his acceptance of $150,000 in cash as fees, prosecutors asked Judge Gleeson to bar him as Mr. Rosemond's lawyer.
Criminal law experts said Judge Gleeson has broad discretion in deciding whether Mr. Lichtman should be disqualified if his continued representation threatens the integrity of the trial process. Without such a ruling by the judge, Mr. Rosemond would be able to keep Mr. Lichtman as his lawyer by waiving any conflict. The U.S. skated closest to accusing Mr. Lichtman of a crime in its detailed description of the evidence that Mr. Rosemond sought to block a witness from cooperating with the government. The witness was identified only as confidential witness CW-3. CW-3, after being arrested in California on charges of supplying cocaine to Mr. Rosemond's organization in summer 2010, pleaded guilty. He eventually told prosecutors that he had sold Mr. Rosemond's operation more than 100 kilograms of cocaine, some of which Mr. Rosemond had personally ordered. The U.S. contends that in the past four years, the group has distributed more than 1,000 kilograms of cocaine, generating millions of dollars in revenues. After CW-3 was brought to the Eastern District of New York, another top-level operative in the organization, who subsequently also became an informant, arranged for CW-3 to be represented by an unidentified New York City defense lawyer, according to the government. In December 2010, CW-3, represented by the lawyer, decided to cooperate and met with prosecutors. On Dec. 17, CW-1, who had not yet flipped, met with the New York City lawyer and told him that Mr. Rosemond was aware that CW-3 was cooperating and asked the lawyer to withdraw. When the lawyer balked, CW-1 showed him the notes he had made of the meeting that the lawyer and CW-3 had with prosecutors, according to the letter the prosecutors submitted to Judge Gleeson asking for Mr. Lichtman's removal.
The New York City attorney, who told prosecutors he "feared for his safety," said that the only person he had shown his notes to was a lawyer who had represented CW-3 in California before he was brought to New York, according to the letter that was signed by Assistant U.S. Attorneys Carolyn Pokorney and Todd Kaminsky. On Dec. 18 and 19, first Mr. Lichtman's investigator alone and then Mr. Lichtman with his investigator met with CW-3, who was incarcerated, and asked him questions about his cooperation. At the same time, according to the prosecution's letter, Mr. Rosemond called CW-3's wife and told her that he was upset that her husband was cooperating. It is "reasonable to infer" that these events, occurring over three days starting with the disclosure of the New York City lawyer's notes of the meeting with prosecutors, "are probative of Rosemond's scheme to prevent CW-3 from cooperating," the Eastern District prosecutors stated in the letter. The prosecutors added that Mr. Lichtman's contact with CW-3 was "a critical link in the chain of events charged in the obstruction-of-justice count." But the prosecutors acknowledged that they had no evidence Mr. Lichtman was aware of his client's actions. Nonetheless, they argued that disqualification was required because Mr. Lichtman could be called as a witness with personal knowledge underlying the obstruction-of-justice charge.
Similarly, the prosecutors wrote, Mr. Lichtman's acceptance of $150,000 in cash and his representation of 10 individuals, including Mr. Rosemond, as either co-defendants in the current prosecution or gang members in prior prosecutions, meant the lawyer had personal knowledge of the scope of the criminal enterprise, a critical element of a racketeering prosecution. Mr. Lichtman countered that the government was pillorying him for doing precisely what he is ethically required to do. "Every lawyer has an ethical obligation to interview witnesses," he said. Similarly, he said, the government's information about Mr. Rosemond's payment of fees in cash only came out because he had properly completed tax forms required whenever an individual receives more than $10,000 in cash. "What house counsel who is trying to protect the 'house' is going to fill out the tax form," he said. "It's like the Salem witch trials. If I float they hang me; if I sink, I'm dead." Mr. Lichtman, a 1990 graduate of Duke University School of Law, has had a number of high-profile clients since first opening his own office in 1999. In 2005, he succeeded in derailing a Southern District prosecution of John A. Gotti, the scion of the Gambino crime family. A jury acquitted Mr. Gotti, known as "Junior," on one count and hung on three others in a case that included charges involving the kidnapping and shooting of Guardian Angels founder and radio talk host Curtis Sliwa. Mr. Lichtman, 46, also won the freedom of a man ho had been sentenced to prison for 27 years in New Jersey for sexually assaulting four alleged victims. He has also represented a retired New York City police detective on charges of robbing drug dealers and has represented AIG executives named in a probe of the insurance industry by the New York attorney general. Before setting out on his own, Mr. Lichtman spent six years working with Gerald Shargel, who himself has had many high-profile clients, including Mr. Gotti's father, John J. Gotti. Daniel Wise can be contacted at dwise@alm.com.
The New York Post by Mitchel Maddux - July 12, 2011
Federal prosecutors say a defense attorney for hip hop music producer James Rosemond served as "house counsel" for the rapper's alleged cocaine empire.
The feds say Jeffery Lichtman's involvement in defending the rap producer in his upcoming drug distribution trial may pose potential conflicts of interest and asked a Brooklyn federal judge to review the matter. However, the feds make no allegations of any criminal wrongdoing . Prosecutors say the attorney accepted approximately $150,000 in cash from Rosemond to pay for legal services, but the feds acknowledge that the defense attorney filled out required IRS forms. Lichtman countered that transaction was above board - he deposited money in a bank and submitted required government documents. The attorney also denied a suggestion that he tried to find out if a man allegedly involved in the cocaine trafficking enterprise was cooperating with the feds. Prosecutors also pointed out that Lichtman represented others charged in the coke case, which they say creates a conflict of interest - although the defense attorney disagreed. Lichtman, a prominent Manhattan defense lawyer, insisted that he's done nothing wrong and offered to take a lie detector case. He charged that the feds have an ulterior motive in filing the letter with Judge John Gleeson. "This is a transparent and desperate attempt to get me off a case," Lichtman said. Shortly before Rosemond's arrest last month, a man serving life in prison claimed that the music producer was involved in an attempt to kill rapper Tupac Shakur. Dexter Isaac claimed he shot Tupac in 1994 at the direction of Rosemond during the bloody East-West war that then defined hip-hop culture. In a statement posted on AllHipHop.com, Isaac apologized for the infamous near-fatal attack. Tupac -- who was born in East Harlem but made his career in Northern California -- survived the attack, only to be shot dead on Sept. 13, 1996, in Las Vegas. Lichtman has said that Issac is simply a convicted killer who is spinning a tale. mmaddux@nypost.com
-------- RELATED STORY:
U.S. Tries to Remove Hip-Hop Mogul's Counsel in Drug Case
The New York Law Journal by Daniel Wise - July 13, 2011
The Eastern District U.S. Attorney's Office did not accuse Jeffrey Lichtman of engaging in any of the crimes charged against his client, but asked Judge John Gleeson to bar him as James Rosemond's lawyer based on Mr. Lichtman's multiple conflicting prior representations, his role as a "critical link" in his client's scheme to block a witness from cooperating and his acceptance of $150,000 in cash as fees.
Federal prosecutors in Brooklyn moved Monday to kick one of New York's most prominent defense lawyers off the case of a hip-hop mogul who is accused of operating a $10 million-a-year bi-coastal cocaine operation. The Eastern District U.S. Attorney's Office claims that Jeffrey Lichtman was house counsel to a drug-trafficking enterprise run by James Rosemond, whose talent management company represents Game and other well-known hip-hop artists. Mr. Lichtman, in an interview, brushed off the government's motion as an "almost laughable" attempt to tar him with wrongdoing "for ethical and legal" steps he had taken to defend Mr. Rosemond. In seeking Mr. Lichtman's removal for conflicts of interest, prosecutors also described him as a "critical link" in Mr. Rosemond's scheme to block a witness from cooperating with the government. The U.S. in United States v. Rosemond, 11-cr-424, did not accuse Mr. Lichtman of engaging in any of the crimes charged against Mr. Rosemond, including obstruction of justice, which would have required Judge John Gleeson, who presides over the case against Mr. Rosemond and four other defendants, to disqualify Mr. Lichtman. Instead, citing multiple conflicting prior representations, including Mr. Lichtman's alleged role as house counsel, his factual knowledge relating to the obstruction of justice count against his client and his acceptance of $150,000 in cash as fees, prosecutors asked Judge Gleeson to bar him as Mr. Rosemond's lawyer.
Criminal law experts said Judge Gleeson has broad discretion in deciding whether Mr. Lichtman should be disqualified if his continued representation threatens the integrity of the trial process. Without such a ruling by the judge, Mr. Rosemond would be able to keep Mr. Lichtman as his lawyer by waiving any conflict. The U.S. skated closest to accusing Mr. Lichtman of a crime in its detailed description of the evidence that Mr. Rosemond sought to block a witness from cooperating with the government. The witness was identified only as confidential witness CW-3. CW-3, after being arrested in California on charges of supplying cocaine to Mr. Rosemond's organization in summer 2010, pleaded guilty. He eventually told prosecutors that he had sold Mr. Rosemond's operation more than 100 kilograms of cocaine, some of which Mr. Rosemond had personally ordered. The U.S. contends that in the past four years, the group has distributed more than 1,000 kilograms of cocaine, generating millions of dollars in revenues. After CW-3 was brought to the Eastern District of New York, another top-level operative in the organization, who subsequently also became an informant, arranged for CW-3 to be represented by an unidentified New York City defense lawyer, according to the government. In December 2010, CW-3, represented by the lawyer, decided to cooperate and met with prosecutors. On Dec. 17, CW-1, who had not yet flipped, met with the New York City lawyer and told him that Mr. Rosemond was aware that CW-3 was cooperating and asked the lawyer to withdraw. When the lawyer balked, CW-1 showed him the notes he had made of the meeting that the lawyer and CW-3 had with prosecutors, according to the letter the prosecutors submitted to Judge Gleeson asking for Mr. Lichtman's removal.
The New York City attorney, who told prosecutors he "feared for his safety," said that the only person he had shown his notes to was a lawyer who had represented CW-3 in California before he was brought to New York, according to the letter that was signed by Assistant U.S. Attorneys Carolyn Pokorney and Todd Kaminsky. On Dec. 18 and 19, first Mr. Lichtman's investigator alone and then Mr. Lichtman with his investigator met with CW-3, who was incarcerated, and asked him questions about his cooperation. At the same time, according to the prosecution's letter, Mr. Rosemond called CW-3's wife and told her that he was upset that her husband was cooperating. It is "reasonable to infer" that these events, occurring over three days starting with the disclosure of the New York City lawyer's notes of the meeting with prosecutors, "are probative of Rosemond's scheme to prevent CW-3 from cooperating," the Eastern District prosecutors stated in the letter. The prosecutors added that Mr. Lichtman's contact with CW-3 was "a critical link in the chain of events charged in the obstruction-of-justice count." But the prosecutors acknowledged that they had no evidence Mr. Lichtman was aware of his client's actions. Nonetheless, they argued that disqualification was required because Mr. Lichtman could be called as a witness with personal knowledge underlying the obstruction-of-justice charge.
Similarly, the prosecutors wrote, Mr. Lichtman's acceptance of $150,000 in cash and his representation of 10 individuals, including Mr. Rosemond, as either co-defendants in the current prosecution or gang members in prior prosecutions, meant the lawyer had personal knowledge of the scope of the criminal enterprise, a critical element of a racketeering prosecution. Mr. Lichtman countered that the government was pillorying him for doing precisely what he is ethically required to do. "Every lawyer has an ethical obligation to interview witnesses," he said. Similarly, he said, the government's information about Mr. Rosemond's payment of fees in cash only came out because he had properly completed tax forms required whenever an individual receives more than $10,000 in cash. "What house counsel who is trying to protect the 'house' is going to fill out the tax form," he said. "It's like the Salem witch trials. If I float they hang me; if I sink, I'm dead." Mr. Lichtman, a 1990 graduate of Duke University School of Law, has had a number of high-profile clients since first opening his own office in 1999. In 2005, he succeeded in derailing a Southern District prosecution of John A. Gotti, the scion of the Gambino crime family. A jury acquitted Mr. Gotti, known as "Junior," on one count and hung on three others in a case that included charges involving the kidnapping and shooting of Guardian Angels founder and radio talk host Curtis Sliwa. Mr. Lichtman, 46, also won the freedom of a man ho had been sentenced to prison for 27 years in New Jersey for sexually assaulting four alleged victims. He has also represented a retired New York City police detective on charges of robbing drug dealers and has represented AIG executives named in a probe of the insurance industry by the New York attorney general. Before setting out on his own, Mr. Lichtman spent six years working with Gerald Shargel, who himself has had many high-profile clients, including Mr. Gotti's father, John J. Gotti. Daniel Wise can be contacted at dwise@alm.com.
Tuesday, July 12, 2011
Rare Ethics Punishment for Prosecutor Who Lied to Grand Jury
Ex-Prosecutor Is Suspended for Deceiving Grand Jury
The New York Law Journal by Jeff Storey - July 12, 2011
An attorney who, as a Brooklyn prosecutor, lied to a grand jury and then tried to cover up her deception by altering already-submitted evidence, has been suspended from the practice of law for one year. The Appellate Division, Second Department, last week rejected a plea that only a public censure should be levied against Danielle M. Muscatello, who is now a criminal defense attorney in Queens. The ruling represents a rare disciplinary penalty for the misconduct of a prosecutor.
Ms. Muscatello, 32, a 2006 graduate of the Benjamin N. Cardozo School of Law, joined the Brooklyn District Attorney's Office in January 2007. On Nov. 5, 2009, she was presenting evidence to a grand jury in relation to a defendant who had been arrested for driving while intoxicated on Oct. 18. She introduced a police report that records a defendant's blood alcohol content at the time a breathalyzer test is performed. However, after doing so, Ms. Muscatello noticed that the space where the blood alcohol content should have been recorded had been left blank. Instead of halting the presentation, she assured the grand jury that the form reflected a blood alcohol content of .08 percent, a fact she knew from other previously introduced evidence. On or about Nov. 12, Ms. Musccatello subpoenaed the police officer who had completed the form. With her supervisor out of the office, Ms. Muscatello fished the form out of the supervisor's briefcase and directed the officer to fill in the blank. A few days later, when the supervisor noticed that the form was missing, Ms. Muscatello was questioned about its whereabouts. After admitting what she had done and apologizing, she was offered and took the opportunity to resign. In January 2010, after disclosing the circumstances of her departure from the district attorney's office, Ms. Muscatello was hired as an associate by criminal defense attorney Robert DiDio in Queens.
Ms. Muscatello told the Second Department that she was "deeply remorseful and ashamed of her misconduct." She asked the court to take into consideration that she was "a young lawyer who had been practicing law for less than three years, that she panicked in a high-pressure situation and doubted herself, and that the conduct was isolated and aberrational." She argued that she "had been punished enough as she had been terminated from her position as an Assistant District Attorney, which she considered an ideal job." Ms. Muscatello submitted numerous character letters attesting to her reputation for honesty and integrity. Mr. DiDio wrote that she "consistently had expressed remorse…and displayed a high standard of ethical and moral character with me and my firm." But the Second Department determined that a censure would not be sufficient punishment. "Notwithstanding the respondent's candor, youth, remorse and lack of a prior disciplinary history, we conclude that the circumstances of this case warrant the respondent's suspension from the practice of law for one year," a unanimous Second Department panel concluded in Matter of Muscatello, 2010-01808. The suspension is effective Aug. 5. Michael S. Ross, who represented Ms. Muscatello, said in an interview that she "profoundly regrets her conduct and looks forward to restarting her career in the future." Ms. Muscatello said in an e-mail, according to Mr. Ross, that she was "thankful to the court and to the people who have supported her in this difficult process." The district attorney's office, which referred the matter to the disciplinary authorities, had no comment on the penalty. A spokesman said that the drunken-driving case was re-presented, and the defendant was indicted. He now is in treatment. Mr. DiDio said in an interview that he thought the penalty received by his associate was "severe" given the fact that her "error of judgment" had not been intentional and had not changed the facts in the case. By contrast, he said that he had dealt with many prosecutors who had intentionally misled the court and intentionally exaggerated evidence but had not been called to account. Mark F. DeWan represented the grievance committee for the Second, 11th and 13th Judicial Districts. The Second Department panel consisted of Presiding Justices A. Gail Prudenti, and Justices William F. Mastro, Reinaldo E. Rivera, Peter B. Skelos and Daniel D. Angiolillo. Jeff Storey can contacted at jstorey@alm.com.
The New York Law Journal by Jeff Storey - July 12, 2011
An attorney who, as a Brooklyn prosecutor, lied to a grand jury and then tried to cover up her deception by altering already-submitted evidence, has been suspended from the practice of law for one year. The Appellate Division, Second Department, last week rejected a plea that only a public censure should be levied against Danielle M. Muscatello, who is now a criminal defense attorney in Queens. The ruling represents a rare disciplinary penalty for the misconduct of a prosecutor.
Ms. Muscatello, 32, a 2006 graduate of the Benjamin N. Cardozo School of Law, joined the Brooklyn District Attorney's Office in January 2007. On Nov. 5, 2009, she was presenting evidence to a grand jury in relation to a defendant who had been arrested for driving while intoxicated on Oct. 18. She introduced a police report that records a defendant's blood alcohol content at the time a breathalyzer test is performed. However, after doing so, Ms. Muscatello noticed that the space where the blood alcohol content should have been recorded had been left blank. Instead of halting the presentation, she assured the grand jury that the form reflected a blood alcohol content of .08 percent, a fact she knew from other previously introduced evidence. On or about Nov. 12, Ms. Musccatello subpoenaed the police officer who had completed the form. With her supervisor out of the office, Ms. Muscatello fished the form out of the supervisor's briefcase and directed the officer to fill in the blank. A few days later, when the supervisor noticed that the form was missing, Ms. Muscatello was questioned about its whereabouts. After admitting what she had done and apologizing, she was offered and took the opportunity to resign. In January 2010, after disclosing the circumstances of her departure from the district attorney's office, Ms. Muscatello was hired as an associate by criminal defense attorney Robert DiDio in Queens.
Ms. Muscatello told the Second Department that she was "deeply remorseful and ashamed of her misconduct." She asked the court to take into consideration that she was "a young lawyer who had been practicing law for less than three years, that she panicked in a high-pressure situation and doubted herself, and that the conduct was isolated and aberrational." She argued that she "had been punished enough as she had been terminated from her position as an Assistant District Attorney, which she considered an ideal job." Ms. Muscatello submitted numerous character letters attesting to her reputation for honesty and integrity. Mr. DiDio wrote that she "consistently had expressed remorse…and displayed a high standard of ethical and moral character with me and my firm." But the Second Department determined that a censure would not be sufficient punishment. "Notwithstanding the respondent's candor, youth, remorse and lack of a prior disciplinary history, we conclude that the circumstances of this case warrant the respondent's suspension from the practice of law for one year," a unanimous Second Department panel concluded in Matter of Muscatello, 2010-01808. The suspension is effective Aug. 5. Michael S. Ross, who represented Ms. Muscatello, said in an interview that she "profoundly regrets her conduct and looks forward to restarting her career in the future." Ms. Muscatello said in an e-mail, according to Mr. Ross, that she was "thankful to the court and to the people who have supported her in this difficult process." The district attorney's office, which referred the matter to the disciplinary authorities, had no comment on the penalty. A spokesman said that the drunken-driving case was re-presented, and the defendant was indicted. He now is in treatment. Mr. DiDio said in an interview that he thought the penalty received by his associate was "severe" given the fact that her "error of judgment" had not been intentional and had not changed the facts in the case. By contrast, he said that he had dealt with many prosecutors who had intentionally misled the court and intentionally exaggerated evidence but had not been called to account. Mark F. DeWan represented the grievance committee for the Second, 11th and 13th Judicial Districts. The Second Department panel consisted of Presiding Justices A. Gail Prudenti, and Justices William F. Mastro, Reinaldo E. Rivera, Peter B. Skelos and Daniel D. Angiolillo. Jeff Storey can contacted at jstorey@alm.com.
Corrupt State Court Administrators Want 41% Judicial Pay Raise
OCA Urges Up to 41% Pay Raise for JudgesThe New York Law Journal by Andrew Keshner and Joel Stashenko - July 12, 2011Urging the Special Commission on Judicial Compensation to shun "half measures," the Office of Court Administration said that the panel should recommend "an immediate and substantial" salary increase that eliminates much of the current pay shortfall in one big step. However, the comments of commission members seemed to suggest that the current economic climate could be a major sticking point in determining how much judges will receive. Court administrators yesterday urged "an immediate and substantial" salary increase for 1,200 state judges who have not had a raise since January 1999. A report submitted by Chief Administrative Judge Ann Pfau presented several scenarios to the state's Special Commission on Judicial Compensation for a salary of between $192,000 and $220,000 for Supreme Court justices, who now make $136,700. The top end would constitute a 41 percent raise. Urging the commission to shun "half measures," the Office of Court Administration said that the panel should recommend a raise that eliminates much of the current pay shortfall in one big step despite the state's fiscal condition. The seven-member commission, which held its first meeting yesterday, is scheduled to report its conclusions to the governor and Legislature by Aug. 29 for the fiscal year that begins April 1, 2012. Unless the Legislature acts to block its recommendations, they will automatically become law. (See the law establishing the pay commission.) "I do think this is a thoughtful analysis of what has come before to help develop alternatives for the commission to consider," Judge Pfau said in an interview. However, the comments of commission members seemed to suggest that the current economic climate could be a major sticking point in determining how much judges will receive. One of Chief Judge Jonathan Lippman's two choices to the panel, Kathryn S. Wylde, CEO of the Partnership of New York City, questioned how much of a role the economy should play in the commission's choices. "It is a brick in terms of the overall state budget," she said. Commissioners Special Commission on Judicial Compensation William Thompson Jr., chair, chief administrative officer/senior managing director at Siebert Brandford Shank & Co. and chair of the Battery Park City Authority. From 2002 to 2009, he served as New York City comptroller. Richard Cotton, executive vice president/general counsel of NBC-Universal and chair of the U.S. Chamber of Commerce Coalition against Counterfeiting and Piracy. Robert Fiske Jr., senior counsel at Davis Polk & Wardwell. Mark Mulholland, managing partner at Ruskin Moscou Faltischek. William Mulrow, senior managing director at Blackstone and chair of Sterling Suffolk Racecourse LLC. James Tallon Jr., president of the United Hospital Fund of New York and chair of The Commonwealth Fund as well as the Kaiser Commission on Medicaid and the Uninsured. Kathryn S. Wylde, president/CEO of the nonprofit Partnership for New York City and deputy chair of the board of the Federal Reserve Bank of New York. But William Thompson Jr., the former New York City comptroller who was picked by Governor Andrew M. Cuomo to chair the commission, responded that the panel "can't fully ignore the state's condition." In fact, the economy is one of the factors the law creating the commission directs it to consider. Moreover, the panel begins its deliberations as Mr. Cuomo has been battling public employee unions for concessions over the past several months that could avoid layoffs. And the courts already have been forced by budget cuts to lay off several hundred workers. Judge Pfau's report laid out several reasons why the state's fiscal condition should not block a major raise. First, it notes that the state has repeatedly deferred a raise. Had it acted in a more timely fashion, there would be no need for a large adjustment now, the report argues. Moreover, it says that every $10,000 statewide increase in judicial salaries constitutes an increase in the state budget of only 9/1,000ths of 1 percent. Finally, it observes that the establishment of the commission marks the first real opportunity to consider salaries in a non-political manner, using rational, objective and predictable criteria. Mr. Thompson indicated at yesterday's meeting that he would like to come to a final decision on compensation weeks ahead of a late-August deadline. "I think the recommendations we make are going to be the levels of compensation," Mr. Thompson said. The panel will hold a public hearing at 11 a.m. on July 20 in Albany where individuals will have three minutes and organizations seven minutes to present their views. The venue has not yet been announced. Commission member Mark Mulholland of Ruskin Moscou Faltischek in Uniondale called information on the purchasing power of judicial salaries "a critical starting point," later adding it was necessary to consider the amount of money lost through inflation as salaries stayed the same. Robert Fiske Jr., senior counsel at Davis Polk & Wardwell, said the submissions of both the OCA and the Coalition of New York State Judicial Associations, an alliance of 12 judicial associations that proposed a 41 percent raise, offered "a very thorough analysis of the relevant factors." William Mulrow, senior managing director at Blackstone, said it would be important to consider how much of an increase the state could afford. James Tallon Jr., president of the United Hospital Fund of New York and a former Democratic assemblyman, said the panel should look at the "totality" of the state's compensation of other public employees in leadership and executive positions. Richard Cotton, executive vice president and general counsel of NBC-Universal, said he would like to hear the perspective of the business community, and to know the number of judges who have left the bench for the private sector due to lower pay. In an interview, Mr. Thompson called commission members "an informed group of people interested in working hard and coming to a conclusion."  In addition to the commission members, about a dozen others attended the meeting, which was held at the midtown Manhattan offices of the Empire State Development Corporation. Bronx Acting Supreme Court Justice Lizbeth Gonzalez, the president of the Association of Judges of Hispanic Heritage, was among the attendees. "It appears that the body respects who we are as judges and understands the gravity of our financial circumstances, given the fact we received no pay raise or cost of living increase for more than 12 years," she said. Brooklyn Family Court Judge Daniel Turbow, another attendee, said after the meeting that he was "encouraged and impressed" by the proceedings. Judge Turbow, who is the president of the New York City Family Court Judges Association, said the commission "has a clear understanding of the harm that's befallen the judiciary in many ways by reason of the failure to get a salary increase." The coalition of judicial groups conceded that it would take a "brave" decision by the commission to advocate for its proposed increase. But the groups argued in a 247-page submission that New York's economy is getting somewhat better and that the Judiciary has endured enough sacrifices since its last raise The groups told the commission that Supreme Court justices have lost more than $345,000 in buying power to inflation since 1999. Albany Family Court Judge Dennis Duggan was the chief author of the alliance's recommendations. "We are looking at [the pay commission] as sort of our jury," he said. "We are presenting our case. The jury will have to make a decision and put aside extraneous things, such as politics. We are confident, based on the evidence, they will give us a significant raise." Andrew Keshner and Joel Stashenko can be contacted at akeshner@alm.com and jstashenko@alm.com, respectively. |
Monday, July 11, 2011
New York Courts Hit New Low
Long harm of the law
The New York Post by William J. Gorta - July 12, 2011
Hundreds of prisoners are languishing in holding pens -- in violation of a court order -- as overtime and budget cuts wreak havoc with Brooklyn arraignments, The Post has learned. According to data obtained by The Post, nearly half of the prisoners awaiting arraignment at the start of each of six days last week had been held longer than 24 hours without seeing a judge. The arraignment courts were so jammed over the Fourth of July weekend that on July 3 more than 57 percent had exceeded the 24-hour limit. And it only got worse on Independence Day, when it hit 59 percent, with more than a quarter of those 379 prisoners having waited more than 36 hours. Between Sunday and Friday, July 8, nearly 44 percent of the people in the system had been there in excess of 24 hours. The delays -- spurred by $170 million in budget slashes that included weekend courtroom hours -- are in direct violation of a 1991 Court of Appeals ruling that any delay over 24 hours was "unnecessary." "Last week was not a great week, and the holiday weekend did not help matters," said Judge Lawrence Marks, administrative director of the Office of Court Administration. Delays are common throughout the city, he noted, but "Brooklyn has presented the greatest challenge." And while he insisted that the daily snapshot numbers exaggerate the extent of the problem, his own figures were not much better: On average, 37 percent had been illegally held more than 24 hours without seeing a judge. Reduced weekend hours, in place since June 11, are causing the system to bottleneck, Marks said. Arraignments used to run from 9 a.m. to 1 a.m. on Saturday and Sunday. Those days now have a single shift of 1 p.m. to 9:30 p.m. A 3-11 p.m. shift and a third arraignment part were added on Fridays to try to reduce the weekend workload, Marks said. Still, many of the people arrested over the weekend finally got to see a judge yesterday afternoon. "They arrested me on Friday at 5:30 [p.m.], and I just got out now -- 72 hours later. It ain't right," said Donald Haywood, 16, after being arraigned on assault and weapon-possession charges. Ana Rios, arrested for alleged criminal mischief Saturday night, waited about 40 hours. "It's horrible," she said. "It's inhumane. There's nothing clean back there." Defense lawyer James Kirshner said the holding pens were "packed like sardines" yesterday. And that, said Dennis Quirk, head of the court officers' union, endangers his members and the public. "It is a safety issue, definitely a major security problem," he said. A lawyer can get a writ of habeas corpus from a Supreme Court justice to force officials to produce the prisoner, but "by the time you're finished, the guy will probably be out anyway," Kirshner said. "It's a law with no effect." Defense attorney Gerald Lefcourt, who submitted a friend-of-the-court brief in the 1991 appeal, knows that all too well. "This has been a perennial problem," he said. "It just goes on and on." william.gorta@nypost.com
The New York Post by William J. Gorta - July 12, 2011
Wait to be arraigned 'inhumane'
Hundreds of prisoners are languishing in holding pens -- in violation of a court order -- as overtime and budget cuts wreak havoc with Brooklyn arraignments, The Post has learned. According to data obtained by The Post, nearly half of the prisoners awaiting arraignment at the start of each of six days last week had been held longer than 24 hours without seeing a judge. The arraignment courts were so jammed over the Fourth of July weekend that on July 3 more than 57 percent had exceeded the 24-hour limit. And it only got worse on Independence Day, when it hit 59 percent, with more than a quarter of those 379 prisoners having waited more than 36 hours. Between Sunday and Friday, July 8, nearly 44 percent of the people in the system had been there in excess of 24 hours. The delays -- spurred by $170 million in budget slashes that included weekend courtroom hours -- are in direct violation of a 1991 Court of Appeals ruling that any delay over 24 hours was "unnecessary." "Last week was not a great week, and the holiday weekend did not help matters," said Judge Lawrence Marks, administrative director of the Office of Court Administration. Delays are common throughout the city, he noted, but "Brooklyn has presented the greatest challenge." And while he insisted that the daily snapshot numbers exaggerate the extent of the problem, his own figures were not much better: On average, 37 percent had been illegally held more than 24 hours without seeing a judge. Reduced weekend hours, in place since June 11, are causing the system to bottleneck, Marks said. Arraignments used to run from 9 a.m. to 1 a.m. on Saturday and Sunday. Those days now have a single shift of 1 p.m. to 9:30 p.m. A 3-11 p.m. shift and a third arraignment part were added on Fridays to try to reduce the weekend workload, Marks said. Still, many of the people arrested over the weekend finally got to see a judge yesterday afternoon. "They arrested me on Friday at 5:30 [p.m.], and I just got out now -- 72 hours later. It ain't right," said Donald Haywood, 16, after being arraigned on assault and weapon-possession charges. Ana Rios, arrested for alleged criminal mischief Saturday night, waited about 40 hours. "It's horrible," she said. "It's inhumane. There's nothing clean back there." Defense lawyer James Kirshner said the holding pens were "packed like sardines" yesterday. And that, said Dennis Quirk, head of the court officers' union, endangers his members and the public. "It is a safety issue, definitely a major security problem," he said. A lawyer can get a writ of habeas corpus from a Supreme Court justice to force officials to produce the prisoner, but "by the time you're finished, the guy will probably be out anyway," Kirshner said. "It's a law with no effect." Defense attorney Gerald Lefcourt, who submitted a friend-of-the-court brief in the 1991 appeal, knows that all too well. "This has been a perennial problem," he said. "It just goes on and on." william.gorta@nypost.com
Sunday, July 10, 2011
Child Porn Will Get You Into Legal Hot Water- Unless You Work For The Feds
Child Porn Will Get You Into Legal Hot Water (Unless You Work For The Feds?)
Forbes - July 8, 2011
Looking at child porn online is a sure-fire way to get yourself into serious legal trouble — even if you were only looking at it for the sake of academic research. Internet law guru Eric Goldman calls child porn “toxic;” any brush with it results in potential criminal charges as well as civil liability if the victim decides to seek damages. The war on child porn is the justification given for many a government initiative to curb Internet freedoms and reduce Internet users’ ability to stay anonymous on the Web. So, it was with a great deal of surprise that Senator Chuck Grassley learned that an Assistant U.S. Attorney had child porn on his computer (for his pleasure, not as part of an investigation) — but faced no legal consequences. Grassley wrote a letter to U.S. Attorney General Eric Holder asking why the unidentified government lawyer has not been charged with a crime. He cites an Inspector General’s report from May which recounted the lawyer’s tendency to surf XXX sites during work hours (assumedly, not in the line of duty): “The OIG conducted an investigation concerning allegations that an AUSA was using his government computer to view inappropriate material on his government computer. The investigation determined that the AUSA routinely viewed adult content during official duty hours, and that there was at least one image of child pornography recovered on the AUSA’s government computer. The AUSA acknowledged that he had spent a significant amount of time each day viewing pornography. The U.S. Attorney’s Office declined prosecution. Disciplinary action against the AUSA is pending.” Apparently, the Securities and Exchange Commission, the National Science Foundation, and the National Park Service are not the only agencies with federal employees who are bored at work. (That probably applies to non-federal employees too. Every porn site proprietor I talk to tells me that their traffic is highest during weekday work hours.) The Justice Department tells the Washington Times that the lascivious lawyer no longer works for them, but “would not comment on why it did not press criminal charges or on whether the attorney had been charged at the state level.” Grassley wants Holder to tell him why the lawyer wasn’t prosecuted, what kind of cases he worked on, and why the pornography was able to slip through the DoJ’s filters. A question he didn’t ask, but perhaps should have, is why a government attorney has several hours of free time every day to look at porn if he’s not on the porn squad.
Forbes - July 8, 2011
Looking at child porn online is a sure-fire way to get yourself into serious legal trouble — even if you were only looking at it for the sake of academic research. Internet law guru Eric Goldman calls child porn “toxic;” any brush with it results in potential criminal charges as well as civil liability if the victim decides to seek damages. The war on child porn is the justification given for many a government initiative to curb Internet freedoms and reduce Internet users’ ability to stay anonymous on the Web. So, it was with a great deal of surprise that Senator Chuck Grassley learned that an Assistant U.S. Attorney had child porn on his computer (for his pleasure, not as part of an investigation) — but faced no legal consequences. Grassley wrote a letter to U.S. Attorney General Eric Holder asking why the unidentified government lawyer has not been charged with a crime. He cites an Inspector General’s report from May which recounted the lawyer’s tendency to surf XXX sites during work hours (assumedly, not in the line of duty): “The OIG conducted an investigation concerning allegations that an AUSA was using his government computer to view inappropriate material on his government computer. The investigation determined that the AUSA routinely viewed adult content during official duty hours, and that there was at least one image of child pornography recovered on the AUSA’s government computer. The AUSA acknowledged that he had spent a significant amount of time each day viewing pornography. The U.S. Attorney’s Office declined prosecution. Disciplinary action against the AUSA is pending.” Apparently, the Securities and Exchange Commission, the National Science Foundation, and the National Park Service are not the only agencies with federal employees who are bored at work. (That probably applies to non-federal employees too. Every porn site proprietor I talk to tells me that their traffic is highest during weekday work hours.) The Justice Department tells the Washington Times that the lascivious lawyer no longer works for them, but “would not comment on why it did not press criminal charges or on whether the attorney had been charged at the state level.” Grassley wants Holder to tell him why the lawyer wasn’t prosecuted, what kind of cases he worked on, and why the pornography was able to slip through the DoJ’s filters. A question he didn’t ask, but perhaps should have, is why a government attorney has several hours of free time every day to look at porn if he’s not on the porn squad.
Child Porn Found on Federal Attorney's Computer
Child pornography found on Assistant U.S. Attorney’s computer
ABC NEWS - July 7, 2011
Iowa Republican Sen. Chuck Grassley sent a letter to Attorney General Eric Holder Thursday requesting an explanation as to why the Justice Department declined to file charges against a federal prosecutor with child pornography found on his work computer. The finding against the Assistant United States Attorney (AUSA) was made by the Justice Department’s Office of the Inspector General (OIG). According to the Inspector General’s report, the AUSA admitted to spending a significant amount of time each day viewing porn at work. “The OIG conducted an investigation concerning allegations that an AUSA was using his government computer to view inappropriate material on his government computer,” the Grassley letter quoted from the OIG report. “The investigation determined that the AUSA routinely viewed adult content during official duty hours, and that there was at least one image of child pornography recovered on the AUSA’s government computer. The AUSA acknowledged that he had spent a significant amount of time each day viewing pornography.” Grassley further questioned why the department kept employing the individual for at least two months following the report; what types of cases this AUSA prosecuted; the status of the individual’s pension; and what types of Internet filters the Department now uses. Last year 33 employees at the Securities and Exchange Commission were found to have viewed pornography on the taxpayer’s dime without receiving harsh discipline. (Justice Department snipes back at Issa, Grassley)
See the letter:
The Honorable Eric H. Holder, Jr.
Attorney General
U.S. Department of Justice
950 Pennsylvania Avenue, NW
Washington, DC 20530
Dear Attorney General Holder:
On May 31, 2011 I received a report from the Department of Justice (DOJ) Office of Inspector General (OIG) in response to a request Senator Coburn and I made to all Inspectors General to provide semiannual reports on closed investigations, evaluations, and audits that were not disclosed to the public. This report contained what appears to be an inexcusable mishandling of serious allegations against an Assistant United States Attorney (AUSA) which calls into question the DOJ’s internal controls and prosecutorial discretion. The report cites the following OIG investigation of an AUSA:
“The OIG conducted an investigation concerning allegations that an AUSA was using his government computer to view inappropriate material on his government computer. The investigation determined that the AUSA routinely viewed adult content during official duty hours, and that there was at least one image of child pornography recovered on the AUSA’s government computer. The AUSA acknowledged that he had spent a significant amount of time each day viewing pornography. The U.S. Attorney’s Office declined prosecution. Disciplinary action against the AUSA is pending.” This report relates to OIG investigations from October 1, 2010 through March 31, 2011 and was submitted two months later. As the case for disciplinary action is “pending” as of May 31, 2011, this means that, at the very least, the DOJ has allowed an admitted serial viewer of pornography – possibly child pornography – to serve as an AUSA for two months, if not longer, and has yet to take action. This is simply unacceptable and compounds the questions raised by the fact that this AUSA was found to have “at least one image of child pornography” on his government computer and yet he was not charged with a crime.
Regarding the DOJ’s decisions in this case, I respectfully ask the following questions:
1. Is this individual still employed by the Department of Justice?
a. If so, in what capacity?
b. If not, when did this individual leave employment with the Department of Justice?
i. Was this departure voluntary or were they terminated?
2. Is this individual eligible for a government pension?
a. If so, has the DOJ made any efforts to strip this individual of his or her pension?
i. If so, what efforts have been made?
ii. If not, why not?
3. What types of cases did this AUSA handle?
4. Did the cases this AUSA was assigned to handle ever lead to any interaction with children?
5. Was the decision not to prosecute this individual made by the U.S. Attorney’s Office in which he or she served?
a. If so, did that raise any concerns regarding a conflict of interest?
b. If not, what office made the decision not to prosecute this individual?
6. How was this individual able to evade the DOJ’s pornography filters?
7. Has the DOJ made efforts to upgrade its pornography filters as a result of this individual’s actions?
a. If so, what efforts have been made?
b. If not, why not?
Thank you for cooperation and attention in this matter. I would appreciate a response by July 21, 2011….
Sincerely,
Charles E. Grassley
Ranking Member - Committee on the Judiciary
ABC NEWS - July 7, 2011
Iowa Republican Sen. Chuck Grassley sent a letter to Attorney General Eric Holder Thursday requesting an explanation as to why the Justice Department declined to file charges against a federal prosecutor with child pornography found on his work computer. The finding against the Assistant United States Attorney (AUSA) was made by the Justice Department’s Office of the Inspector General (OIG). According to the Inspector General’s report, the AUSA admitted to spending a significant amount of time each day viewing porn at work. “The OIG conducted an investigation concerning allegations that an AUSA was using his government computer to view inappropriate material on his government computer,” the Grassley letter quoted from the OIG report. “The investigation determined that the AUSA routinely viewed adult content during official duty hours, and that there was at least one image of child pornography recovered on the AUSA’s government computer. The AUSA acknowledged that he had spent a significant amount of time each day viewing pornography.” Grassley further questioned why the department kept employing the individual for at least two months following the report; what types of cases this AUSA prosecuted; the status of the individual’s pension; and what types of Internet filters the Department now uses. Last year 33 employees at the Securities and Exchange Commission were found to have viewed pornography on the taxpayer’s dime without receiving harsh discipline. (Justice Department snipes back at Issa, Grassley)
See the letter:
The Honorable Eric H. Holder, Jr.
Attorney General
U.S. Department of Justice
950 Pennsylvania Avenue, NW
Washington, DC 20530
Dear Attorney General Holder:
On May 31, 2011 I received a report from the Department of Justice (DOJ) Office of Inspector General (OIG) in response to a request Senator Coburn and I made to all Inspectors General to provide semiannual reports on closed investigations, evaluations, and audits that were not disclosed to the public. This report contained what appears to be an inexcusable mishandling of serious allegations against an Assistant United States Attorney (AUSA) which calls into question the DOJ’s internal controls and prosecutorial discretion. The report cites the following OIG investigation of an AUSA:
“The OIG conducted an investigation concerning allegations that an AUSA was using his government computer to view inappropriate material on his government computer. The investigation determined that the AUSA routinely viewed adult content during official duty hours, and that there was at least one image of child pornography recovered on the AUSA’s government computer. The AUSA acknowledged that he had spent a significant amount of time each day viewing pornography. The U.S. Attorney’s Office declined prosecution. Disciplinary action against the AUSA is pending.” This report relates to OIG investigations from October 1, 2010 through March 31, 2011 and was submitted two months later. As the case for disciplinary action is “pending” as of May 31, 2011, this means that, at the very least, the DOJ has allowed an admitted serial viewer of pornography – possibly child pornography – to serve as an AUSA for two months, if not longer, and has yet to take action. This is simply unacceptable and compounds the questions raised by the fact that this AUSA was found to have “at least one image of child pornography” on his government computer and yet he was not charged with a crime.
Regarding the DOJ’s decisions in this case, I respectfully ask the following questions:
1. Is this individual still employed by the Department of Justice?
a. If so, in what capacity?
b. If not, when did this individual leave employment with the Department of Justice?
i. Was this departure voluntary or were they terminated?
2. Is this individual eligible for a government pension?
a. If so, has the DOJ made any efforts to strip this individual of his or her pension?
i. If so, what efforts have been made?
ii. If not, why not?
3. What types of cases did this AUSA handle?
4. Did the cases this AUSA was assigned to handle ever lead to any interaction with children?
5. Was the decision not to prosecute this individual made by the U.S. Attorney’s Office in which he or she served?
a. If so, did that raise any concerns regarding a conflict of interest?
b. If not, what office made the decision not to prosecute this individual?
6. How was this individual able to evade the DOJ’s pornography filters?
7. Has the DOJ made efforts to upgrade its pornography filters as a result of this individual’s actions?
a. If so, what efforts have been made?
b. If not, why not?
Thank you for cooperation and attention in this matter. I would appreciate a response by July 21, 2011….
Sincerely,
Charles E. Grassley
Ranking Member - Committee on the Judiciary
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