May 09, 2013

Georgetown beats former North Dakota AG on age bias case

#Georgetown University #Law Center has prevailed in an age discrimination lawsuit filed by the extremely well-credentialed former North Dakota attorney general who claimed the school improperly passed him over for a teaching gig.

In a 37-page decision that sheds light on the law school hiring process, and that summons thoughts as well about the pains of growing old and feeling one's self passed by, U.S. District Judge Ellen Segal Huvelle dismissed the discrimination lawsuit filed by Nicholas Spaeth.

Spaeth, who turns 63 this year, seemingly succeeded in everything he tried up for decades. Stanford, magna cum laude. Rhodes Scholar. Stanford Law School. Supreme Court Clerk. In time, he served as North Dakota attorney general for seven years. After retiring in 2009, he set his eye on academia. He didn't get hired, though he submitted what amounted to a common application to 172 law schools. 

Consider the competition. As detailed in the decision, Georgetown reviewed 800 Faculty Appointments Register applications. Twenty five applicants were selected for initial interviews. Ten received call-backs for follow-up interviews. Four job offers were made. Three were accepted; all, as it happened, by 35-year-old applicants.

Huvelle concluded "the record was clear" that a track record of scholarship was key to the Georgetown decision-making, and that in this area those chosen had excelled.

"Scholarship is," Huvelle wrote, "for better or worse, one of the overriding concerns among elite law schools in making hiring decisions,"

Huvelle observed, as well, that the successful Georgetown candidates did more to express their specific interest in the school, and had more detailed research plans, than Spaeth. The decision is worth checking out in its entirety for details on the  hiring process.

May 06, 2013

Judge approves forcible medication of presidential threat suspect

The government can forcibly medicate a man accused of threatening President Barack Obama in order to render him mentally fit for trial, a federal judge has ruled.

In a 15-page decision, U.S. District Judge John D. Bates gave the green light for medicating Simon A. Dillon, who has been variously diagnosed as suffering from "Delusional Disorder, Grandiose Type" and "Schizophrenia, Paranoid Type."

According to prosecutors, Dillon in 2011 sent threatening e-mails that included a demand to meet with Obama so the president could "receive The Demands of God." Dillon further stated, prosecutors say, that "just as Moses was not messing around with the Egyptians, I am not messing around with the current Mortal Leaders of this world." In a follow-up e-mail, prosecutors say, Dillon further claimed that "it is a lot easer (sic) to be The Exterminator of a species than the King or A Savior of one."

In their motion to order medication, prosecutors include many more similar statements.

Medication, doctors say, has proven effective in restoring Dillon's mental competency in the past. Dillon, though, says the psychotropic drugs have caused him to experience depression and numbness in his extremities.

In his decision, Bates marches through the four elements that must be met,under the 2003 Supreme Court case of Sell v. United States, to permit forcible medication of a suspect, a determination that the medication is medically appropriate and necessary to significantly further an important government interest.

May 03, 2013

Ex-sailor loses long fight over military crime lab

An ex-sailor whose case shed troubling light on #military #crime lab problems has lost his latest effort to win relief.

In a 17-page decision, U.S. District Judge Rudolph Contreras dismissed Ivor Luke's challenge to the U.S. Court of Appeals for the Armed Forces. Luke, a former Hospital Corpsman Second Class, had argued the military appeals court had violated his constitutional rights when it affirmed his 1999 conviction on sexual assault charges despite subsequent, post-trial discrediting of work by an analyst at the U.S. Army Criminal Indentification Laboratory.

That the work of former USACIL analyst Phillip Mills was discredited was not in doubt, as detailed here and here and here and here.

Luke argued that an eventual USACIL investigation determined that Mills' serology work was incorrect more than 55 percent of the time, and that the lab's destruction of evidence from his case foreclosed the possibility of retesting. The government responded that the lab errors did not involve falsification and primarily involved failure to find stains.

In January 2011, the U.S. Court of Appeals for the Armed Forces ruled that, however troubling, the newly discovered evidence about Mills would not have resulted in a better result for Luke.

In his decision issued late Thursday, Contreras said the military appeals court "carefully assessed" all the evidence presented, and he implicitly praised the "thoroughness" of the military court's work, saying he would not "substitute (his) judgment" for that of the military courts.

April 29, 2013

Marine suicide-attempt conviction thrown out

A troubled #Marine convicted of trying to kill himself has prevailed on appeal, with the U.S. Court of Appeals ruling in a narrowly constructed opinion Monday that the particular facts of his case merited reversal.

Importantly, though, the military appeals court explicitly declined to use the case of Lazzaric T. Caldwell to address the larger question of whether a bona fide suicide attempt should be a court-martial offense under the theory that it would cast discredit upon the service.

Or, as the court's 3-2 majority put it:

"We need not determine whether, as a general matter, a bona fide suicide attempt alone may be service discreding, or is more properly considered a noncriminal matter requiring treatment not prosecution."

Represented on appeal by Navy Lt. Mike Hanzel, based in Bremerton, Wash., Caldwell had challenged his guilty plea to "wrongful self-injury." In light of the rash of military and veteran suicides that have followed deployments to Iraq and Afghanistan, the charges against Caldwell had incited considerable debate over the tension between prosecution and psychological help.

Tellingly, the military appeals court took judicial notice of a pronouncement by the Pentagon that suicide prevention is a leadership issue.

Among other points, the court's majority declared that Caldwell's impression, upon entering his initial guilty plea, "that members in the unit felt uneasy does not provide a sufficient factual basis to establish a direct and palpable effect on good order and discipline."

For the two dissenters, Judge Margaret A. Ryan argued that the Pentagon's "view on the appropriate balance between empathy and prosecution in deterring suicide attempts in the military does not bear on the altogether different question whether, as a matter of law, a suicide attempt is punishable" under the Uniform Code of Military Justice.

April 24, 2013

Judge punitively dismisses copyright lawsuit against ABC

An acrimonious lawsuit against #ABC has been tossed by a federal judge, who cited a series of problems that include soiled documents and allegedly fabricated evidence presented by the plaintiff.

In a 40-page decision issued Tuesday, U.S. District Judge Beryl Howell dismissed the copyright infringement suit brought by Gregory Slate, over what he said was unauthorized use of videotape in an ABC news report.

As summarized by Howell, the suit involved footage used in a hidden-camera investigation in Chicago in the fall of 2007. Howell summarized that Slate worked on the Chicago project with ABC employees and the Police Complaint Center. ABC had agreed with the PCC to produce the hidden-camera footage and believed that Slate was an agent of the PCC. Slate subsequently claimed that he owned the copyright to the Chicago footage all along.

Among other issues, Howell cited "clear and convincing proof" that Slate had fabricated a letter claiming to be an Emmy winner. Slate further sought to "entangle" ABC anchor Elizabeth Vargas inthe lawsuit, Howell concluded; Howell went on:

"Furthermore, the plaintiff has engaged in a course of conduct, which demonstrates that he does not take seriously his obligation to litigate in good faith. Most notably, Mr. Slate has repeatedly attempted to abuse the discovery process, and his persistent course of conduct in this regard strongly suggests that he acted willfully. This conduct includes, but is not limited to: (1) attempting to fraudulently collect evidence;25 (2) producing discovery documents in a soiled envelope that had the strong odor of excrement;26 (3) improperly videotaping his own deposition testimony;27 and (4) producing voluminous amounts of irrelevant and misleading materials."

 

April 22, 2013

Forfeiture fails in Equatorial Guinea case

The #Justice Department has failed, at least for now, in its effort to seize a $38.5 million jet acquired by a top official from Equatorial Guinea.

In an eye-popping case of foreign intrigue, U.S. officials alleged that Teodoro Nguema Obiang Mangue, the son of Equatorial Guinea's president, purchased the Gulfstream G-V jet  with funds derived from extortion, theft and embezzlement. But in a 23-page decision issued Friday, when other news of the day dominated, U.S. District Judge Rudolph Contreras rejected the U.S. government's arguments.

"Although the government describes a disconcerting pattern of corruption in Equatorial Guinea, the complaint does not link the jet to any specific illicit acts," Contreras wrote.

At the same time, the judge gave the government an opportunity to file an amended complaint.

The attempted forfeiture of the jet was only part of the U.S. claims against Nguema, which became public in 2011. In separate actions, the Justice Department also alleged Nguema obtained several million dollars worth of Michael Jackson memorabilia and a house in Malibu, Calif., among other goodies.

At the time of the filing of the forfeiture actions, Nguema was his country's minister of forestry and agriculture. Now, he is reportedly his country's vice president in charge of national defense and state security.

"Despite his modest government salary, Nguema has managed to acquire many of life's luxuries," Contreras noted.

These include eight Ferraris, seven Rolls Royces, five Bentleys, two Lamborghinis and much, much more.

"Nguema's wealth might allow an inference of illegal activity, but standing alone it does not," Contreras stated, adding that "absent other details, the court cannot infer how Nguema's wealth may have been derived, nor from what sources, nor the legality of those sources."

April 17, 2013

Military appeals court upholds Manning trial 'secrecy'

The top #military #appeals court has decided, in a closely split decision, not to order a trial judge to open up more of the Bradley Manning trial to press and public scrutiny.

In a 3-2 decision, the U.S. Court of Appeals for the Armed Forces rejected pleas from the Center for Constitutional Rights and an assortment of media organizations, which wanted an order compelling the Manning trial judge to open access to all pleadings and transcripts.

The court's majority concluded it lacked the jurisdiction to issue the order to the trial judge, Col. Denise Lind. The fact that Manning himself was not pushing for more open proceedings weighed on the court's majority:

"We thus are asked to adjudicate what amounts to a civil action, maintained by persons who are strangers to the court martial, asking for relief -- expedited access to certain documents -- that has no bearing on any findings and sentence that may eventually be adjudged by the court."

Chief Judge James E. Baker wrote one of two dissents, averring that "it is well settled that the media have standing to complain if access to courts has been denied or unconstitutionally restricted."

April 13, 2013

Pacifist Ira Sandperl passes away

Ira Sandperl, a world-class pacifist, teacher and book-lover, passed away early Saturday morning, his friend and former wife Molly Black reports.

Ira had turned 90 in March, but his health took a serious downturn. Molly reported that he "passed away gently into the night at 3:23 a.m. on April 13." The Friends of Ira Sandperl site has a place for messages to be posted.

Everbody knew Ira, it sometimes seemed. From his long-time perch at Kepler's Books & Magazines in Menlo Park, Calif., starting in the late 1950s, Ira held forth and did much more than simply sell books. He entertained, inspired, provoked. On occasion, it is said, he flirted. He was the early mentor in non-violence for young Joan Baez, with whom he helped start the Institute for the Study of Nonviolence in Carmel. With his great friend Roy Kepler, Ira demonstrated against the Vietnam War and went to jail for his beliefs.

As recounted in the book "Radical Chapters: Pacifist Bookseller Roy Kepler and the Paperback Revolution" Ira was "born in comfortable circumstances on March 11, 1923, the second child of a Jewish doctor and his younger wife." Ira graduated from a St. Louis prep school and enrolled at Stanford in the fall of 1941. He did not graduate, embarking instead on a journey that eventually brought him to the teachings of Gandhi.

Never one for the straight 9-to-5 world, Ira taught at the Peninsula School for a time before he joined Kepler's. He taught, as well, at Palo Alto Friends Meeting, where he came into contact with Joan Baez, Sr. and her daughter, Joan, junior.

"We, who sat in that circle, all loved Ira," Joan Baez, Sr., recounted in a memoir. "Perhaps it was the bard-like beard that belonged to his thin face, his electric eyes that focused on a questioner. Perhaps it was the limp he had lived with all his life."

Ira loved Leo Tolstoy. He told stories brilliantly. He could gossip with great flair. He had a robust sense of humor, including about himself. He loved the stage, and he loved to hear what other people had to say. He was smart as a whip, and unconventional as could be. For several years, well into his low-income retirement, he would take a seat at Cafe Borrone, next to the latest edition of Kepler's, and chat with all comers.

"He was fabulous, one of the great teachers," recalled Lee Swenson, who ran the Institute for the Study of Nonviolence in its latter years.

April 12, 2013

Wilkerson court-martial records revealed

Court martial records public via the Air Force #FOIA Reading Room shed considerable light on the case against Lt. Col. James Wilkerson.

The documents include trial and investigative transcripts, exhibits, photographs and correspondence surrounding the sexual assault allegations against Wilkerson. A political firestorm arose after a general unilaterally overturned Wilkerson's conviction, releasing the fighter pilot from prison and returning him to active duty.

Above and beyond the trial, and how it played out, the documents shed terribly poignant light on what goes on behind the scenes of a military criminal investigation. The FOIA Reading Room is an incredble resource, and should be visited by anyone seeking to understand what really happened in the Wilkerson case; see, e.g., the suppressed testimony of a woman who sharply denounced the credibility of the alleged victim.

More generally, the records are invaluable for anyone interested in how law enforcement and the military justice system work.

Consider this transcript, from the day an Air Force Office of Special Investigations agent first interviewed Wilkerson.

OSI: We want to talk to you about the reason why you’re here,but before we get into that, hey, I’m just going jumping right in. At OSI, we have a unique ability to talk to a variety of people, you know. Sometimes they’re good occasions; sometimes they’re bad occasion, but how I look at it is I get to talk to people. And like today, I get to speak to a lieutenant colonel.

Wilkerson: And the colonel is scared ****less.

OSI: Well, like I said, we'll get into that...

The transcript then offers a case study in how investigators try to draw out a witness or a suspect, sometimes with sympathy and respect, with the OSI agent exclaiming "awesome" as Wilkerson describes his career.

OSI: You’ve got a great career going, and not many people can say the same thing....a lot of people want to be a pilot like yourself, unfortunately it didn’t work for me, but you know, like I said, just you achieving your dreams and then having your son who can look up after you, who achieved his dreams, man it’s special. I hope I can get that.

And then, the special agent starts getting down to the real business at hand, the business of investigation allegations of sexual assault.

April 11, 2013

Wedding bell blues ring in appellate court

#Appellate judges in a #Georgia case write breezily, in an example of how colorful fact patterns can stimulate clear writing.

Here's the start, in the 26-page decision by the 11th Circuit Court of Appeals:

"There would be no wedding bells, no wedding cake, and no tuxedo and white dress for Dustin Myers and Kelley Bowman. The couple was engaged to be married, but before the time came to say 'I Do,' Kelley found herself a new Romeo. She broke Dustin’s heart, and she tried to hurt his finances too by hosting two yard sales at which she sold some of his property. Kelley’s mother called Dustin late in the evening of August 12, 2009, to tell him that his fiancée had been unfaithful and to provide the helpful advice that he should 'come get [his] stuff before everything was gone.'

It gets worse. Or, rather, the facts get more painful and the writing gets more entertaining, if entertaining is the right word to use for a young couple's personal travails.

Indeed, the 11th Circuit judges seem quite taken by the unfolding story, as it is laid out with commendable detail and clarity: there's a dog, a Maltese, named Lexi, and there's a diamond ring, and there's an agreement to swap the dog for the ring, and there's this exchange:

"Murry pulled his truck alongside the Myers’ truck, exited his vehicle, approached the Myers’ truck wearing the engagement ring on his pinkie finger, tossed the ring through the window of the truck and into Dustin’s lap, and said, 'Here, I’ve got your goddamn ring.'"

And then comes the inevitable police chase, caught on video camera likened in Judge William H. Pryor's opinion to a scene from the old TV show "The Dukes of Hazzard." The whole thing reads as slapstick, setting aside the human toll, but then the serious law starts, and for that only the full opinion will do.