July 03, 2009

Martin A. Armstrong: Beaten, but still fighting

Investor, economics commentator and former hedge fund operator Martin A. Armstrong spent seven years incarcerated for civil contempt. The former chairman of Princeton Economics International Ltd. would not hand over what a judge wanted. He finally pled guilty to securities fraud in August 2006. On April 10, 2007 he was sentenced.

One month later, while still being held in New York's Metropolitan Correctional Center, Armstrong said in a lawsuit:

"A detainee facing murder charges, Mr. George, deliberately entered Armstrong's cell...and strangled Armstrong from behind, beat him severly (sic) in the head, breaking his nose and damaging his inner ear that affects his balance, reduced the vision in his left eye and may have resulted in a detached retina or serious injury, beat Armstrong also using a typewriter breaking it into pieces causing Armstrong also to lose his upper teeth and then jumped up and down on his chest attempting to cave in his chest breaking several ribs."

Suits & Sentences' note to self: Obey the law.

Armstrong, now serving out his sentence at Fort Dix Federal Correctional Institution, is suing the Bureau of Prisons and, among other things, seeking early release on the grounds that his civil contempt incarceration should be counted toward his criminal sentence.

On Thursday, U.S. District Judge Henry H. Kennedy, Jr. rejected Armstrong's bid for early release-- the latest, it should be said, in a series of lawsuits filed by Armstrong. While Judge Kennedy transferred the underlying complaint against the Bureau of Prisons to U.S. District Court in New York City, he saw no reason to let Armstrong out of prison now. Reasoned the judge:

"Armstrong’s confinement for civil contempt of court was neither (1) the result  of the offense for which the [criminal] sentence was imposed nor (2) the result of any other charge for which the defendant was arrested after the commission of the offense for which the sentence was  imposed. Rather...it stemmed directly from his refusal to produce documents and turnover assets as ordered by  the district court in a civil proceeding."

July 02, 2009

Douglas Kmiec: Ambassador

Conservative legal scholar and former Ronald Reagan aide Douglas Kmiec of Pepperdine University Law School gave Barack Obama a well-timed career boost last year. Now, Obama has returned the favor.

On Thursday, Obama announced the nomination of Kmiec to be ambassador to Malta.

Last February, in the heat of primary season, Kmiec authored a ringing endorsement of Obama in Slate magazine. It resonated because of Kmiec's background, which had included service in Reagan's Office of Legal Counsel most recently backing Mitt Romney's campaign. But by February 2008, Kmiec wrote a love letter to Obama that noted:

"John McCain will have many Catholics in the pews a little while longer, but more than a few of us are thinking of giving him up for Lent. Reagan used to say that he didn't leave the Democratic Party, it left him. The launch of "Reaganites for Obama" might not be far behind."

Not every contribution from a future ambassador comes in the form of lucre.

Porn-meister must pay for victim's shrink

Abraham Pearson paid two teenage girls to have sex with him in the basement of his Syracuse-area home. He paid one girl with Marlboro cigarettes, and the other with cash. Then, he distributed the resulting tapes and images.

Pearson's life as he knew it effectively ended with the 2003 arrest. His wife, a physician, divorced him. She got the three kids. Now 52 years old, he's serving out a 15-year sentence in federal prison.

But on Thursday, Pearson won at least a temporary victory in an intriguing fight over restitution. In a decision worth perusing, the 2nd Circuit Court of Appeals -- no, Judge Sonia Sotomayor was not part of the panel -- directed a trial judge to explain more fully the rationale behind ordering Pearson to pay the two girls $974,902.

The money covers mental health care and other medical assistance. As a consultant noted:

"Each victim 'has a number  of mental health issues that will require treatment and services presently and into the future, some for the rest of her life' as a result of her sexual assault by Pearson."

But the $974,902 ordered by the trial judge was much less than the $2 million that a consultant suggested would be required. In part, the judge determined the teenage girls "had some problems before" that Pearson might be responsible for.

The 2nd Circuit had not previously ruled on whether restitution in criminal cases like this could include coverage of future medical care. On Thursday, for the first, the circuit joined others in ruling that it could, but still sought more explanation. As the appellate panel noted:

"In this case, although the record contains evidence of the victims’ need for long term  counseling and of the cost of that counseling, the district court did not explain how it estimated  the victims’ future expenses."

Congressional aide, or enemy of the state?

Scott Tooley entered a nightmare world the minute he uttered the word 'bomb.'

Or so he says. So far, the truth is elusive. And now, due to a ruling Wednesday, the U.S. Court of Appeals for the D.C. Circuit will be wading back into this morass

Tooley is an attorney and former congressional aide who once worked for then-Rep. Christopher Cox of California. He says he was subjected to roving  wiretaps.  He says his car, and his wife's car, were both tagged with radio frequency devices that allowed investigators to track their movements. He says he has been subjected to airport strip searches and placed on a terrorist watch list. He's seen mysterious black Crown Victoria cars -- the kind favored by cops -- shadowing him.

And it all happened, Tooley contends, because of a conversation he had in the spring of 2002 with a Southwest Airlines passenger representative.

Tooley, in response to a question, told the Southwest rep that he would like 100 percent of everything that goes into the airplane, including  cargo, to be fully screened. He was asked why, and, as the circuit court noted in a February ruling:

    "(Tooley) responded that the traveling public, including himself, was less safe due to the potential that those who wish to harm American citizens could put a bomb on a plane."

Bang. The word 'bomb,' Tooley said, triggered an alarmed response by the airline rep, who put Tooley on hold for 20 minutes. And ever since, he claims, he's been having problems. He sued various federal agencies, seeking documents through the Freedom of Information Act. The Transportation Security Administration refused to confirm or deny whether he was on a watch list.

In 2006, a trial judge granted summary judgment for the government; in part, the judge determined Tooley lacked standing: could he show that any wiretapping was the work of federal rather than state agents? In February, a divided three-member of the D.C. Circuit Court, with Judge David Sentelle dissenting, overturned the trial judge and let Tooley's case proceed.

Now, at the government's request, the same three-judge panel has agreed to re-hear the case. Not the entire circuit, mind you, just the same three judge panel. Which, to Suits & Sentences' admittedly limited understanding, doesn't happen all that often.

July 01, 2009

Hollywood v. Coleman v. Franken v. Bush v. Gore

Entertainers Dan Akroyd, Richard Belzer and Edward Norton, among others, all got their money's worth in the Minnesota Supreme Court's decision Tuesday handing the state's Senate election to Saturday Night Live alum Al Franken.

Akroyd ($12,300), Belzer ($1,000) and Norton ($2,500) were among the Hollywood-ish types who pumped money into the Franken Recount Fund. The Fund raised $1.1 million since January, with other quasi-Name contributors including Barry Diller, John  Grisham, Tom Hanks, Norman Lear, John McEnroe, Michael Myers and the ever-lovin' comedic couple Jerry Stiller and Anne Meara.

The Coleman Recount Fund raised $949,000 since January. Its non-political star power was limited to the likes of Las Vegas mogul businessman Sheldon Adelson, who gave $10,000.

Coleman, a dogged soul, raised multiple arguments in his bid to challenge the election of Al Franken as Minnesota's newest senator. In its 32-page opinion issued Tuesday, the Minnesota Supreme Court knocked down each and every one.

A putative conservative -- isn't that someone who is supposed to be skeptical of discovering new constitutionally protected rights? -- Coleman nonetheless claimed that Minnesota's handling of absentee ballots violated "substantive due process." His reasoning: a trial court had determined that "strict" rather than "substantial" compliance with absentee ballot requirements would be the standard.

Wait. Suits & Sentences thought conservatives were supposed to believe in strict application of laws and standards. But here is Coleman, arguing his constitutionally protected rights were infringed upon when a court insisted on strict abiding by the rules. No matter. The Minnesota court noted:

“Courts are reluctant to expand the concept of substantive due process because guideposts for responsible decision making in this unchartered area are scarce and open-ended."

Coleman further summoned the Supreme Court's Bush v. Gore decision in arguing, separately, that his equal protection rights were violated in the handling of Minnesota ballots. Here, though the Minnesota court did not mention it, Suits & Sentences was reminded of the Supreme Court's enigmatic admonition in Bush v. Gore that:

"Our consideration is limited to the present circumstances, for the problem of equal protection in election processes generally presents many complexities."

Which seemed to translate as: Don't try applying this precedent at home, kids.

Of course, there's no way the Bush v. Gore genie could be stuffed back in the bottle. Coleman invoked it as precedent, and the Minnesota courts handled it as such. Unfortunately for Coleman, the Minnesota Supreme Court also concluded that the specific facts in Minnesota could be distinguished from those in Florida that were at the heart of Bush v. Gore.

For cold comfort, Coleman and his good-government allies might lean upon the footnote in the Minnesota court's opinion that acknowledges:

"To the extent that this case has brought to light inconsistencies in the administration of absentee voting standards, we are confident that the appropriate officials in the other branches of government understand that efforts should be made to reduce those inconsistencies, even though they were not proven to be of constitutional magnitude."

June 30, 2009

Scotus 2008-2009 Term: By (some of) the numbers

The indispensable Scotusblog "StatPack" compilation from the Supreme Court's 2008-2009 Term yields much grist for the mill. Among the numbers and corresponding questions that jump out:

The court decided 79 cases. Of these, 23 were decided on a 5-4 basis; the kind that has court reporters wearing out the "a closely divided Supreme Court" keys on the keyboard. So what does this say about Chief Justice John Roberts' famed pledge to seek, as it has been generally summarized, greater unanimity?

Most prolific justice: John Paul Stevens and Stephen Breyer tied with 29 opinions each. So what is Justice Stevens, age 89, putting in his cereal?

In 59 of the cases, or 74 percent of the time, the court reversed or vacated the lower court's decision. So what will this do to Republican arguments that nominee Sonia Sotomayor is an oft-dissed, oft-reversed judge?

The 9th Circuit was reversed 81.3 percent of the time. On the other hand, seven other circuits were reversed 100 percent of the time (on fewer cases.) So when do we get to stop chortling about the oft-dissed,  oft-reversed 9th Circuit?

The Great Dissenter: Justice Stevens, again, with 28 dissenting votes.

The Great Straddler Go-To Guy: Justice Anthony Kennedy, with only 6 dissenting votes. Kennedy also led the court by being in the majority of 5-4 decisions 18 times.

The Great Eccentric Courageously Principled Jurist: Justice Clarence Thomas, leading the court with three solo dissents in 8-1 cases.

June 29, 2009

Justice Ginsburg: Sympathy v. empathy

Revised July 2

The Washington Post's Robert Barnes captures something Suits & Sentences missed, in Justice Ruth Bader Ginsburg's dissent in the case  Ricci v. DeStefano. Mr. Barnes observes there was a difference in words chosen for a script and the words chosen for a written dissent and, frankly, this is kind of bizarre.

As Suits & Sentences noted in original posting, Justice Ginsburg read from the bench Monday the following statement:

"Mr. Ricci and his fellow petitioners understandably attract the court's empathy."

This is the sentence, and the loaded word empathy, that Suits & Sentences originally noted. It was spelled out, right on the written script handed out to reporters. Which prompted the following, original posting:

Empathy is, of course, the very word President Barack Obama used in describing the quality he was looking for in a future Supreme Court justice. More to the point, though, empathy has become a code word among Obama's conservative critics including Newt Gingrich, the Washington Times' Amanda Carpenter and others who insist that empathy = liberal.

So was Justice Ginsburg using a bit of rhetorical Aikido here and turning back upon the conservatives the power of their own loaded term? Suits & Sentences believes yes, yes she was.

An unhappy reader, Scoff, insisted that Ginsburg used the word sympathy. I looked again at the script: nope, empathy.  Now the strange part: I also looked again at the  dissent itself, and 'saw' the word empathy there as well. Not sympathy; empathy, just like on Ginsburg's script that she read from.

Re-prompted by Scoff, I now re-re-read the dissent and see, sure enough, Justice Ginsburg chose a different word for her official dissent than for the script she read from. The Post's interesting story picks up on this and other matters, while Suits & Sentences is left wondering not only what Justice Ginsburg was up to with her script but also how it is that an assumption can shape perception. In this case: the word emPATHY in one sentence is, how to put this, read over the word symPATHY in another, otherwise identical sentence.

We now return you to your original post.

It appears, meanwhile, that the Heritage Foundation won the quick-reaction race Monday morning, as the conservative think tank's e-mail commentary on the court's decision arrived at 10:26 a.m. Republican Rep. Lamar Smith of Texas, a senior member of the House Judiciary Committee, weighed in with a slap at court nominee Sonia Sotomayor at 10:40, and at 10:50 Morrison & Foerster attorney Daniel Westman offered his analysis. By 11:25 a.m., the Cato Institute joined the fray.

Modified July 2

And then there was the NAACP Legal Defense Fund, which organized live commentary along with the National Women's Law Center through a call-in news conference. Problem was, the 800 telephone number originally offered on the press release directed callers to yet another number for "live talk with exciting people." 

In the interest of fully reporting the story, Suits & Sentences called the referred-to number, and heard the following message:

"Hey there, sexy guy. Welcome to an exciting new way to go live with hot, horny girls..."

At which, having gotten the point, Suits & Sentences hung up and called the corrected number that had been subsequently sent out. Substantively, Center Co-President Marcia D. Greenberger called the court's Ricci decision "deeply disappointing" and contended it would make it "more difficult for women and minorities compete fairly" for jobs.

And, on Thursday, the NAACP Legal Defense Fund advised Suits & Sentences that it was "solely responsible for the typographical error and sincerely regrets the confusion."

June 26, 2009

Court to author: No FOIA fees for you

Author Anthony Summers knows how to unlock secrets. His biographies of Marilyn Monroe, J. Edgar Hoover and Richard Nixon all include the word "secret" in the respective subtitles. Naturally, he's an aggressive user of the Freedom of Information Act.

On Friday, Summers lost on a FOIA front when the Court of Appeals for the District of Columbia Circuit upheld a trial judge's opinion that Summers should not receive attorneys fees from an earlier FOIA dispute.

In a nine-page ruling that bears watching by other FOIA aficionados, Judge Douglas Ginsburg wrote for the appellate panel that Summers was not eligible to recover attorneys fees because it could not be said that he had "prevailed" in the underlying FOIA dispute. Here's what happened, in Ginsburg's words:

"Summers sought from the FBI records relating to Charles Gregory (aka “Bebe”) Rebozo to aid him in writing a biography of former President Richard Nixon. When the FBI had not timely complied with his request, Summers filed this suit under the FOIA."

Ahh, yes: Bebe  Rebozo. They don't make presidental cronies pals like that any more, do they?

Ultimately, the FBI agreed to disclose three names from a single document in exchange for Summers’s voluntary dismissal of the case. The agreement included a statement that it did not amount to an admission of success on Summer's behalf. Nonetheless, he subsequently argued that a 2007 revision to FOIA rendered him eligible for reimbursement.

On their face, the 2007 FOIA amendments seem to cover a situation like Summers'. The revisions state that a plaintiff now qualifies as having “substantially prevailed” if he obtains any kind of relief following a "voluntary or unilateral change of position" by the government agency. The appellate panel, though, concluded that "there is no clear evidence" that Congress intended the revisions to apply retroactively.

Bottom line: the FOIA changes came too late for Summers. Of course, given his extensive use of FOIA, the changes could well benefit him in the future on other cases.

Abramoff-related corruption case kept alive

The Jack Abramoff corruption business may seem so last year, so Bush-league, but spin-off cases continue to be heard.

Now, a U.S. District Court judge has declined to dismiss Abramoff-related charges against former congressional staffer Kevin Ring. Mr. Ring is former legislative director to former Rep. John Doolittle of California, as well as a former lobbyist with the Washington, D.C. firm Greenberg Traurig.

In a 41-page opinion issued late-ish Thursday, U.S. District Judge Ellen Segal Huvelle rejected Mr. Ring's request to dismiss a 10-count indictment against him. Prosecutors charge the former lobbyist with providing "things of value" -- in the form of meals, sporting event tickets, golf outings, travel etc. -- to then-Rep. Robert "Freedom Fries" Ney and two other lawmakers. During the same time period, three congressmen allegedly took actions benefiting Ring and Abramoff's tribal clients.

Time check: Ney has already been released from prison after serving 17 months for his involvement in the mess.

In his request to dismiss the complaints, Mr. Ring in part attempted a wholesale attack on the very notion that a lobbyist could be charged with violating an "honest services" wire fraud statute. The statute prohibits using a "wire communication" to enter into a scheme designed to "deprive another of the intangible right of honest services." Typically, this has been used against public officials -- the guys and gals who are obliged to provide constituents with honest service.

Ring's argument, an interesting one, is that as a private citizen he had no duty to the public and therefore cannot be prosecuted for depriving the public of his honest service. But Judge Segal Huvelle, in an opinion worth perusing, countered that the service at issue in this case is that of the public officials with whom Ring was allegedly entangled.

June 25, 2009

Judge tells Larry Klayman to chill out

Judicial Watch founder Larry Klayman, a litigious soul, has now failed in his long-shot effort to force a magistrate judge off of his lawsuit against, that's right, Judicial Watch.

On Thursday, U.S. District Judge Colleen Kollar-Kotelly dismissed Klayman's bid to get rid of Magistrate Judge Alan Kay. Kay has been appointed to oversee the various discovery motions and the like in the nasty Klayman v. Judicial Watch fight. Among Kay's rulings have been the ordering of monetary sanctions against Klayman for failing to produce material in response to document requests.

Klayman originally forced his way into the public consciousness with his aggressive legal attacks on then-President Bill Clinton. His claim against Kay was, in part, centered on the belief that, as he put it in a court filing, "Magistrate Judge Kaye [sic] [] is quite liberal and a Democrat."

Yes, that always leaves a good impression of solid judicial scholarship to misspell the name of the judge you are trying to get rid of.

Judge Kollar-Kotelly determined:

"It is clear that, even if true, the mere fact that Magistrate Judge Kay may be a Democrat and/or have a
liberal political background does not warrant or require recusal."

Moreover, Judge Kollar-Kotelly appears fed up with Klayman's drive-by shooting approach toward litigation, as she notes that Klayman "has made various  unsupported, unsubstantiated, and highly insulting allegations accusing this Court and Magistrate Judge Kay of colluding together to intentionally deny Klayman his fair day in court." Consequently, the judge is now putting Klayman on notice that will "not tolerate an inappropriate and uncivil tone in the future."