 |
Craig Smith's BlogCovering Santa Barbara Law and MediaLike A Wet Blanket
|
Teaching |
| Bio |
|
|
Loading...
|
More Cycling Dirt. Wednesday, June 28, 2006. Apparently I'm not the only one who was troubled by the latest allegations against Lance Armstrong. Lance himself was doing something of a media blitz on Monday denying the allegations. I caught his interview on ESPN's "Outside the Lines." He was very firm and positive in his denial of ever having used performance enhancing drugs. He also emphasized the fact that he won the binding arbitration over whether he was entitled to a $5 million bonus for winning his sixth Tour de France. But his entitlement to the bonus would not have turned on whether the testimony of Betsy Andreu was true. That she heard him admit to having used performance enhancing drugs before being diagnosed with cancer and starting his record run of Tour de France victories. The issue in the arbitration was whether he cheated to win any of his six victories up to that point, not whether he had ever cheated at anytime in his career. Of course, cheating at anytime in his career would diminish the esteem that so many of us hold him in. The public is not likely to want to distinguish between having cheated prior to being diagnosed but never having cheated since being cured. What makes the Andreus so credible is their status as innocent bystanders. They have no lawsuits of their own against Armstrong and had nothing to gain from the case in which they testified. They were subpoenaed and answered questions under oath. Lance was never able to explain why Betsy Andreu, would accuse him. Her husband, Frankie Andreu, since retiring from cycling has served as a TV commentator on broadcasts of the Tour de France in recent years. I've seen him interview Lance on numerous occasions and there was never a hint of friction or animosity between the two former teammates. The other guest on the "Outside the Lines" broadcast, Brian Alexander a writer for Outside magazine, said the other shoe is yet to drop on the Lance Armstrong story.Something like the other shoe dropped on the disgraced former teammate of Armstrong, Tyler Hamilton. The Spanish newspaper El Pais has run a story claiming that Hamilton was billed by a doctor for treatment that allegedly included blood transfusions and banned performance-enhancing drugs. Hamilton has denied the allegation. Hamilton won a gold medal at the 2004 Olympics then failed a test for blood doping. However, because authorities mistakenly froze the backup sample of blood he was allowed to keep his medal. However, the international governing body of cycling subsequently suspended Hamilton from competition for two years. The day Hamilton's suspension was announced, April 18, 2005, was the same day Armstrong announced his retirement from competitive cycling. My guess is that was no coincidence. Armstrong wanted to make sure that his former teammate's being drummed out of cycling wasn't the biggest story in the cycling world that day. Why the Latest Accusations Against Lance Armstrong Are So Troubling. Sat. June 24, 2006. Let me start out by saying that I've been an avid cyclist for nearly 20 years. I even raced bicycles at the lowest levels of the amateur ranks for a few years and I still make it a point to ride my road bike every other day. Lance Armstrong is one of my heroes. Thus, I've been dismissive of all the reports that have surfaced over the years alleging that the seven time winner of the Tour de France used performance enhancing drugs. The accusers have usually had axes to grind or books to sell and most of the allegations have come by way of France which is notoriously provincial about its cycling champions. However, the latest revelation about Lance gives me pause because the person making it is the wife of one of Lance's most loyal former teammates on the U.S. Postal Service cycling team, Frankie Andreu. Armstrong had an insurance policy with SCA Promotions which guaranteed to pay Armstrong $5 million if he succeeded in winning his sixth Tour de France, which he did in 2004. SCA refused to pay off claiming that Armstrong had cheated. Armstrong sued and the case went to arbitration in Texas. Called as a witness during the arbitration hearings, Betsy Andreu testified that back in 1996 while Armstrong was in the hospital recovering from surgery to remove testicular cancer had spread to his brain, she overheard Armstrong tell a doctor he had used the blood-boosting hormone EPO and other drugs. Husband Frankie, corroborated her account. Armstrong has called the allegations "stale, unfounded and untrue." The arbitration panel ruled for Armstrong and awarded him $7.5 million. Betsy Andreu never went public with her statements, rather the arbitration testimony was leaked. Armstrong's doctor has contradicted her testimony saying that in multiple doctor-patient interviews, Armstrong never admitted taking performance-enhancing drugs. Velo News, which is the bible of the American Cycling community, quotes Armstrong as saying that Betsy Andreu has a personal grudge against him. Although we are never told what the source of that grudge might be. Other U.S. media sources such as the Voice of America, have led their coverage of this story with the denial and have gone into very little detail. The New York Times ran a very brief item on it. Not surprisingly, the most comprehensive coverage comes from the French paper that broke the story, Le Monde. Given the fact that all of us are so invested in the saga of Lance Armstrong, it will be a huge story if it is ever proven that he cheated. In the past when accusations were made I've always considered the source and dismissed them. But sometimes, considering the source cuts both ways. Man I hope this isn't true.The Beginning of the End? Friday, June 16, 2006. For you music trivia fans, "The Beginning of the End" is the name of the one-hit-wonder group that put out the early '70's club hit "Funky Nassau." Today it could also describe the impact of Thursday's U.S. Supreme Court ruling in the case of Hudson v. Michigan on the exclusionary rule. I was interviewed by our local TV station, KEYT, and asked to give some legal analysis on the decision. In that case when the police arrived at the suspect's residence to execute a search warrant, they announced their presence, but waited only three to five seconds before turning the knob of the unlocked front door and entering the suspect's home. What they were supposed to do was wait some reasonable period of time, more like, 20 to 30 seconds to give the occupant a chance to let them in before entering through an unlocked door or forcing open a locked door. Once inside, large quantities of drugs were found, including cocaine rocks in the suspect's pocket. A loaded gun was lodged between the cushion and armrest of the chair in which he was sitting. The Michigan trial court granted the motion to suppress the evidence relying on the legal rule that evidence seized in violation of the Fourth Amendment prohibition on unreasonable searches must be suppressed or excluded. Giving the occupant of a residence a reasonable opportunity to answer the door before having a posse of police barge in on him, is part of what makes a search reasonable. After all, when anyone rings your doorbell, whether it be the Fuller Brush man, the Jehovah's Witnesses or even the police, most of us would like to look out the window or through the peephole to verify that whoever is at the door is who they say they are. After all, burglar's and thieves never knock and say "I'm here to rob you." They always claim to be someone else. It's a common sense rule that protects both the occupant and the unannounced intruder who might be greeted by the baseball bat kept beside the door or a firearm in the hands of the occupant because an unannounced entry may provoke violence in supposed self-defense by the surprised resident. Of course, if the police have reason to believe that the suspect may destroy evidence or react violently in response to the knock and announcement, its okay for them to dispense with knocking and announcing. But the Michigan police never made the claim that such circumstances were likely in this case. Scalia acknowledges that the rule was broken here but says even if the police had waited the 30 seconds before entering they would have found what they found anyway so no harm no foul. However, as the Breyer dissent noted, the Court destroys the strongest legal incentive to comply with the Constitution's knock and announce requirement. Scalia seems to say that enforcing the knock and announce rule by suppressing evidence would only encourage people to claim that its been violated and would lead to only more litigation. Since when is that a reason not to obey the law? As articles reporting this decision have noted, had Sandra Day O'Connor still been on the court rather than her replacement, Samuel A. Alito Jr., the decision may have gone the other way. At this point, Anthony M. Kennedy, is the only justice standing in the way of having five votes to totally eliminate the exclusionary rule.How About A Bagel With That Restraining Order? Friday, June 9, 2006. One candidate was a respected judge with more than 20 years on the bench who was rated exceptionally well qualified by the bar association. The other candidate wasn't even practicing law but rather spent her time running a bagel shop. So who did Los Angeles County voters in their infinite wisdom elect to the bench this past Tuesday? The bagel boiler, giving new meaning to the term "no brainer." Lynn Diane Olson challenged and defeated Judge Dzintra Janavs in her bid to be reelected to the L.A. County Superior Court. Although eligible to pratice law, Olson has only actively practiced seven out of the last 16 years. Rather she has been spending her time running Manhattan Bread & Bagel in Manhattan Beach. So how can someone who is barely a lawyer defeat a sitting judge? I don't have any answers, only guesses. Perhaps it was the $100,000 of her own money that Olson spent on the campaign compared to the $42,000 that Janavs raised in actual contributions as reported by the L.A. Times. Or maybe in these xenophobic anti-immigration times in which we live people are unwilling to vote for someone whose name they can't pronounce. (Janavs is of Latvian descent.) Whatever the reason, the fact that the L.A. Times endorsed Janavs didn't make any difference. According to the Times article Olson ran a very aggressive campaign including sending out over 50,000 e-mails to democratic voters. (Apparently she's a spammer as well.) All I know for sure is that the result is an outrage. When someone whose not interested enough in the law to practice or work in a law related position is now going to be deciding the disputes of thousands of people who come before her every year I say look out. The outcome is likely to be as disastrous as me suddenly trying to crank out bagels for the masses. A person ought to have a better reason to challenge a sitting judge other than the judge's party affiliation. The bottom line is that L.A. County voters have traded in an experienced and fair judge for a legal lightweight. Let's at least hope that the bagels in the courtroom are decent.News Director Gone. Details at 11? Wednesday, May 31, 2006. I was out for a Tuesday evening stroll when I ran into an acquaintance who works at our local ABC affilliate, KEYT. I was shocked to learn that long-time anchor and news director Paul Vercammen has been fired. Why? I don't know. It may have something to do with the embarrassment surrounding the revelation that KEYT was among those stations accused of airing video news releases or promotional videos as news stories, without disclosing the fact that the pieces were paid for by the manufacturers of the products being featured. Whatever the reason, it is a sudden and regrettable ending to the reign of a staple of the Santa Barbara media scene. A true "local boy" Paul graduated from Santa Barbara High School and after attending USC, got one of his first jobs as a reporter at KEYT. He left in 1991 to go to CNN where he was a familiar face to viewers reporting on both business and entertainment news. He returned to KEYT in 2003 as news director where he apparently was until Tuesday. He was identified as still being the news director and quoted as recently as last Saturday in the Santa Barbara News-Press article about the video news release dust up. Anyway, that's my best guess as to what the story behind all of this is. Whatever the reason, I'm sorry to see Paul go.This Is What Gives Journalists A Bad Name. Thursday, May 25, 2006. I used to be a regular viewer of The Abrams Report but lately I have a hard time watching the show I once appeared as a guest on. Instead of acting like a journalist for MSNBC, host Dan Abrams has been acting more like a publicist for the defense in the Duke rape case. Wednesday he was calling for the district attorney to drop the charges against the Duke lacrosse players who are accused of raping a stripper who came to entertain at a team party. Sure, Dan cites plenty of exonerating evidence. Of course all that evidence has been provided to him by the defense attorneys in the case, who I would hardly expect to be passing on any of the incriminating evidence that may be found in the 1300 pages of police reports on the accusation. One of his panelist, former Denver DA Norm Early asked "why do we take everything the defense says as gospel?" Of course Abrams would have us believe that there is no other side to this story. But as a country lawyer once argued "no matter how thin you pour a pancake there's always two sides to it." Of course the reason we're only getting one side to this story is because the district attorney, unlike the defense, is unwilling to try his case in the media. Which is exactly the way it should be. If there is incriminating evidence, it should be introduced at the trial and not on The Abrams Report. As I've said here before, I believe in trying cases in the courtroom, not in the press.Of course, if Dan was really interested in considering the other side of the story he should have read Lynne Duke's article that appeared in Wednesday's Washington Post. Among other things in the article she cites a court document that says that after the lacrosse party, a physician and a forensic nurse examined the woman at the Duke University Hospital emergency room and found "signs, symptoms and injuries consistent with being raped and sexually assaulted vaginally and anally," I guess the defense attorneys neglected to pass that tidbit of evidence on to Abrams. Nor does Dan mention the report that as the women fled the house, a neighbor reportedly heard one of the men shout: "Hey bitch, thank your grandpa for my nice cotton shirt." True, those kind of racial statements don't prove the defendants are guilty of rape, but they surely will be embarrassing when they come out in the trial not only to the defendants but to Duke University as well. And of course Abrams is a graduate of Duke. Look, these cases are tough for the prosecution to win even in the best of circumstances. The victims are often, but not always, guilty of poor judgment. But that doesn't mean you throw in the towel simply because it may be a difficult case to prosecute. Even if the defendants are acquitted it figures to be a hollow victory for them. Drunken parties with strippers seldom end with the participants bathed in a flattering light. The defendants may walk free but forever branded as bigots and mysoginists. No wonder the defense team is using Abrams, and whoever else is willing, to lobby for a dismissal prior to trial. Its truly a no win situation for the defendants and the university as well as the alleged victim. As the Post article points out, much of the mainstream media has been subtly if not overtly trying to portray her as a prostitute. To the extent they do so, they further perpetuate the historical script of demeaning black women when they are the victims of sexual abuse. Guilty or innocent? I don't know. Unlike Abrams I can wait until the verdict to find out. I do know that whatever the outcome, its going to be ugly. This Is What Gives Lawyers A Bad Name. Thursday, May 18, 2006. Count me among those who's a sucker for swag. You know, the freebies or giveaways that have some company's logo or emblem on them that are given away as promotional items. I schlepp my law books to class in my Lexis© bag that I got for free. I sip my coffee out of my Westlaw© travel mug. And boy, do I go to town when I head for the ballpark. Free hats, beach towels, tote bags. Tote bags! Aren't those for women only? San Diego attorney Alfred Rava doesn't think they should be. Rava has sued the Los Angeles Angels of Anaheim over their Mother's Day giveaway of tote bags to female fans claiming that it violates California's Civil Rights Act. Count me among those lawyers who believe that Rava is misusing the act. The civil rights act, known as the "Unruh Act" (Civ.Code sec. 51 et seq.) was enacted in the 1960's to prohibit discrimination by business establishments. In the past the act has been used to successfully sue banks who refused to make mortgage loans to African-Americans, a physician who refused to treat African Americans and landlords who discriminated on the basis of race. But Rava is using this law to sue because he's honked off that a woman who shows up at a ball game gets a free tote bag and he doesn't? What else is going on here? It couldn't be the actual damages because how much could those tote bags and hats cost anyways? Of course, sweetening the pot for a plaintiff like Rava who represents himself are the statutory damages of $4,000 per violation of the Act as well as the possibility of an award of attorney's fees which are offered by the act. This isn't the first time that Rava, who's been an attorney less than 10 years, has sued under the Unruh Act. He's sued bars over letting women in free on "Ladies Night" (in 2003 several bar owners settled his suit by paying him $125,000) and the San Diego City Ballet for offering discount tickets to young families who wouldn't otherwise attend the ballet. Technically all these things may be a violation of the Act but just because you can do something doesn't mean that you should do it. Doesn't this guy have any judgment? Or heart?Hot or Not? Two Different Opinions. Tuesday, May 16, 2006. So my 10 year old daughter and I are walking past the window of our local video store when she spots a poster for the movie Shopgirl in the window. She asks me "what is Shopgirl about?" Having seen the movie in the theatre I answer: "Its about a young women who works in a fancy department store and has two men who are pursuing her. One is an older wealthy guy and the other is a young guy who doesn't have any money." Then my daughter adds, "but the younger guy is a lot better looking right?" "What?" I blurt out. But I'm thinking to myself that she's looking at the same poster I am. Whatever she sees in Jason Schwartzman, I sure don't see it. To me he looks like a dweeb and in the movie he dresses like a clown. But to my 10 year old daughter he's easily beating out Steve Martin whose only six years older than I am. How old am I? Let's just say this, on my next birthday you'll probably find me at Denny's ordering the Senior Slam for breakfast. Anyway its probably further proof of my long held theory, a woman can always tell when another women is beautiful, but a man can't tell when another man is handsome. In my opinion, a handsome man is Steve McQueen in Bullet, Richard Roundtree in Shaft or Billy Dee Williams in anything. Of course, my choices reflect the biases of a man my age. After all, McQueen has been dead for over 25 years, Roundtree hasn't had a significant movie role since his cameo in the remake of Shaft and I've appeared more recently on a screen, big or small, than Williams. What women see in Brad Pitt or Colin Farrell sure beats the hell out of me. And then, there's the biggest mystery of all. What does Chris Noth, "Big" on Sex and the City have going for him? Well, at least my daughter and I can agree on one thing, Claire Danes is sure good looking.The Women Sitting Behind Me Talked A Good Game. Friday, May 12, 2006. I need only the flimsiest of excuses to take a break from grading final exams so I gave into temptation and drove down to Dodger Stadium Thursday to watch the Dodgers play the Houston Astros in a rare mid-week day game. Although I consider myself to be somewhat of a liberal, I am very conservative when it comes to my baseball. Baseball was meant to be played in the daytime not at night. And there is no better place to spend a sunny weekday afternoon than in the ballpark. Once I got to the stadium the first stop was the concession stand. No Dodger Dog and soft drink for me. Now that I'm accustomed to paying $1.50 for a hot dog and Coke at Costco, no way am I going to shell out $11 for the same thing at the ballpark! For $3 more my ballpark snack of choice is garlic fries and a beer. Then its on to take my seat. Its definitely a different crowd on a weekday. I'm glad I'm up on my CPR because the guy on my left is 90 if he's a day. He sure knows his baseball though, and he is very interested when they flash on the scoreboard between innings that the NASDAQ is down by 48 points. I tell him "that figures, we take the afternoon off and the stock market goes in the tank." Behind me are two San Marino type housewives who spend the entire game talking. There ought to be a law that when at a ball game you talk about baseball and not whether Dick will get down with Jane on "Search For Tomorrow." (I know, I stole that line from Gil Scott-Heron but at least I acknowledged it, which is something that Kaavya Viswanathan wouldn't have done.) I mean if you're going to yak and not pay attention to the game, you may as well go to Starbucks where the seats and the beverages are a whole lot cheaper. Sitting in front of me, twins! (Check out the baseball hats they probably got for free at some giveaway. Guess they didn't have any money left after springing for those pricey Dodger Dogs.) And, if you're scoring at home, or just reading this by yourself, the Dodgers lost 4 to 2.Accused of Being on the Same Page. Friday, May 5, 2006. One of the incidental benefits of living in a small town is that when you read the paper each day, you're likely to know someone whose name is in there. I hit the trifecta last week in an article that appeared in the Santa Barbara News-Press about former Michael Jackson defense attorney Bob Sanger's attempt to recuse Santa Barbara Superior Court Judge George Eskin from hearing a child abuse case that is being prosecuted by Deputy District Attorney Joyce Dudley. The grounds for the recusal? Judge Eskin edited Dudley's latest self-published crime novel "Intoxicating Agent." Joyce is a former law student of mine. Judge Eskin was the first person I ever met in Santa Barbara. Back when he was an assistant DA he interviewed me for the opening in the DA's office that became my first job out of law school. Eskin acknowledges that he copy edited half the book, concentrating on typographical, punctuation and spelling errors and inconsistencies. All for free. A superior court judge as your copy editor? Nice work Joyce! I didn't know judges were available to perform that service. I thought they were all about to collapse under the back-breaking case loads they have to carry. I happen to be in the final stages of editing my own book, "California Contract Law, Cases and Materials." I'm tempted to say had I known about Judge Eskin's free service I would have used him to proof read my manuscript and saved myself the big bucks I paid my own copy editor. But she reads this blog and knows I'd be lying, so I won't say that. And besides, what are the chances of actually getting a judge to read a book on the law?Why I Will Only Post Pictures of Myself Fully Clothed. Monday, April 24, 2006. Mandatory reading for me every Sunday is the "So Sue Me" item in the Los Angeles Times West Magazine. This week it quotes from the complaint in the L.A. Superior Court case of Mills vs. Metro Entertainment, a lawsuit undoubtedly based on misappropriation of the plaintiff's name and likeness for publicity. In that case plaintiff alleges that she posted pictures of herself on Internet dating sites and that defendants "obtained . . . and posed those photographs . . . on their erotic services web site." Mmm. I wonder how she found out?The Blake Civil Case; A Sure Thing. Monday, April 10, 2006. There is only one thing I can be sure of today. Sometime before 5 p.m. we will have a ruling on whether Robert Blake's motion for a new trial in his civil case is granted or denied. How can I be so sure? Well, if for any reason the judge were to fail to rule on the motion by 5 p.m. today, he will forever lose the power to do so. California law provides that if the new trial motion is not determined within 60 days of notice of entry of judgment the effect of failure to rule shall be a denial of the motion without further order of the court. This case is too high profile to have the new trial motion decided by default. Blake's attorneys are basing their motion on two grounds; juror misconduct and the argument that the $30 million damage award is excessive. I can say with some confidence that the juror misconduct argument is going nowhere. Jurors can't impeach their own verdicts and that is all Blake's lawyers have to support their motion, the sworn declarations of jurors as to what was said in the jury room. The law wisely tries to protect the sanctity of jury deliberations by precluding from the court's consideration statements of jurors that may reveal their own misconduct. Unless evidence of juror misconduct comes from someone not on the jury, for example, a bailiff overhearing what is said in the deliberation room or a witness who saw a juror visiting the scene of the incident and thus improperly receiving evidence, its simply not competent evidence of juror misconduct. The argument about the damages being excessive is another matter. As I've said here before, $30 million in the circumstances of this case is grossly excessive. So here's my prediction: the judge will exercise his power to grant the motion for new trial subject to the condition that the motion will be denied if the plaintiffs (Bakley's children) consent to a reduction of the damage award. I predict the judge will reduce the award to the single digit millions range. The plaintiffs will accept this reduction rather than go through a retrial. Besides, with Blake having filed for bankruptcy its questionable whether they will ever see a dime anyway.Happy Anniversary! Wed. April 5, 2006 It was one year ago today that I made my appearance as a guest on MSNBC's The Abrams Report, You know, the show about justice, to talk about the Michael Jackson case. It wasn't the first time I had worked on the Jackson case with reporters from the NBC news organization, but this was the appearance that put me in the steady rotation of talking heads appearing on TV to analyze the case. So, I've been wondering what some of the people I worked with during the trial are doing one year later. Jennifer London was on MSNBC today reporting from Burbank and giving up dates on our west coast storm. Mike Taibbi was also on MSNBC doing a story on a murder in Connecticut that has a wealth and power angle. Former Santa Barbara County Sheriff Jim Thomas, who worked at the trial as an NBC News analyst, is running for his old job, the latest developments in that election campaign are reported on by Santa Maria Times reporter Quintin Cushner, who covered the Jackson trial on a daily basis. The Santa Barbara News-Press' reporter assigned to the case, Dawn Hobbs, has been on a leave of absence presumably working on her book on the Jackson trial that she is co-authoring with Tom Mesereau. Finally, because our local ABC affiliate in Santa Barbara does not have a high definition signal, our cable provider now carries KABC 7 out of Los Angeles, which means I am now able to watch the work of Leslie Miller, one of my favorite reporters from the trial who used my sound bytes as much or more as anyone else in their stories.So, in case you haven't guessed, I enjoyed my time spent at the Jackson trial. And who knows, I may get to do it again one day. After all, my motto is "an arrest for Michael means a job for Craig!" Clooney All In A Huff Over Post. Thurs. March 16, 2006. George Clooney is plenty ticked off at Arianna Huffington and rightly so. Clooney says he did not write a blog posted Monday on Huffington's "The Huffington Post" Web site, though he gave her permission to use a compilation of his critiques of the Iraq war from interviews with other sources. "I stand by my statements but I did not write this blog" Clooney said. Huffington claims she and her staff initially compiled a "sample blog" for Clooney from his interview answers because he wasn't sure how a blog worked. She said that after she sent Clooney the sample, a film publicist e-mailed her and approved it, without any changes. Huffington posted the item on her site and represented the posting as having been penned by Clooney rather than reveal the fact it was ghost written. "We based our decision to post on the unambiguous approval we received in writing." So that makes everything okay? Hardly! Readers of this nascent form of "journalism" have a right to know who's writing what. The posting was clearly represented to be something it was not; the thoughts and opinions of George Clooney as authored and written down by him. Rather than try to justify what she did Huffington should just flat out apologize. I can assure you there are no ghost writers on my blog. Can't afford any.It's Enough to Make Any Housewife Desperate! Wed. March 15, 2006 So the next big court case filled with lurid testimony about sex, domination and total subservience is about to come out of Iowa? I'm talking about the case of Travis Frey, a 33-year-old Iowa father of two, who has been charged with first-degree kidnapping and assaulting his wife three times after allegedly tying her to a bed with a rope. The case is about to go to trial in Council Bluffs and one of the first evidentiary battles is over whether Frey's four-page "Contract of Wifely Expectations" should be admitted into evidence. The contract stipulated that Ruth Frey was to do "anything and everything" her husband wanted. Most people would think that the foregoing term would cover all the bases and leave it at that, but the contract went into details. For instance, the contract required the wife to "be subservient, submissive and totally obedient" and "to do what you are asked, when you are asked, how you are asked" and "perform any and all sexual acts." The contract also has specific terms governing the wife's wardrobe. "You will wear only thigh highs and garters and only thong panties." Of course, pursuant to the express terms of the contract, "panties are always optional and need not be worn." Then there is the term of the contract that is my personal favorite, it prescribes "all skirts no lower than two inches below the knee (unless its for Church)." After all, can't let the other members of the congregation think that the nice couple sitting next to them in the pew are a couple of freaks right? The friend who brought this story to my attention said it was a "great teaching aid." How, I asked. Her reply: "As a cautionary tale for law students: 'Don't accept this client!' As a cautionary tale for women: 'RUN.'" Consider yourself warned.In Memoriam. Wed. March 8, 2006. My first job right out of law school was as a law clerk in the Santa Barbara County District Attorney's office. I was one of three law clerk's hired by the office that year who made up the class of 1976. So, it was with great shock and sadness that I opened the L.A. Times on Monday morning and learned of the passing of one of my fellow law clerks from that class, Rob Sandoval. Of the three of us who were hired that year, Rob went the furthest and accomplished the most in his legal career, having been appointed a Los Angeles County Superior Court Judge in 2001 after having served as a commissioner in both the Municipal and Superior Court. Rob's appointment was noteworthy because he is credited as being one of the first individuals who was openly gay to be appointed to the bench in California. When I moved to Santa Barbara to take the law clerk job I didn't know anyone in town. Rob and the third law clerk, Marcia Will Strickland, became the first friends I made here. We had all just taken the bar exam and were offered clerking positions in the office until the bar results came out. People in the office referred to the three of us as the "Mod Squad." Back in those days I sported a medium size Afro, Marcia looked very much like the California surfer girl with her long blonde hair and Rob of course had the Latino thing going. Rob and I both passed the bar on our first attempt and were offered positions here as Deputy District Attorneys. Rob was assigned to juvenile and I was assigned to misdemeanors. After six months we swapped assignments. Rob stayed on for another six months then left to accept a position in the L.A. City Attorney's office. His career took off from there. Its been at least 10 years since I last spoke to him. He called me when my judicial profile ran in the L.A. Daily Journal, a legal newspaper, while I was serving as court commissioner in Santa Maria and we had a nice chat. Rob was a fine person and an outstanding judge. His passing further convinces me that only the good die young.A Funny Thing Happened While Watching the Oscars. Sunday, March 5, 2006. I was sitting on the couch in the living room watching the Academy Awards when all of a sudden an episode of "In Living Color" broke out. I'm referring to the musical number and the winning of the category of best original song by the composers of "It's Hard Out Here for a Pimp" from the movie "Hustle & Flow." The acceptance speech by the winners, Three 6 Mafia, looked like one of the old "In Living Color" Homeboy Shopping Network skits. (BTW, if it is in fact, hard out there for a pimp, isn't that the way it should be?) And the dancers! Casting must only have to have gone a few blocks east on Hollywood Boulevard to round up the pimps, johns and hookers who took over the stage for the musical number. Now, before you dismiss me as just another middle-aged black man who longs for the good old days of Motown, let me say there's plenty of rap music that I enjoy and that I have Kanye West and Naughty By Nature on my iPod. But the idea that "It's Hard Out Here for a Pimp" winning best song at the Oscar's shows you how weak the competition is. Isn't it time to retire this category? I would argue there hasn't been a decent winner of best song since Issac Hayes won for "Shaft" in 1972. As host Jon Stewart pointed out, Three 6 Mafia now has now won more Oscars than Martin Scorcese! There is no justice. BTW, just what country is Queen Latifah queen of?May It Please The Court? Monday, Feb. 27, 2006. At the very least I'm sure it will please Justice Clarence Thomas and maybe even the other seven members of the U.S. Supreme Court who are male. Parties to cases being heard in the Supreme Court aren't required to attend oral argument, and even when they elect to attend they usually don't attract much attention. But that won't be the case when Vickie Lynn Marshall shows up on the steps of the Supreme Court building to hear her case argued tomorrow morning (Tuesday). Who is Vickie Lynn Marshall? Well, you probably know her better as Anna Nicole Smith, former Playmate of the Year and world-class ditzy blonde. I will resist the temptation to post any gratuitous links to photos of her on the web showing her in various stages of undress. (I don't run that kind of a website although I'm sure it would be far more lucrative than the one I am running.) I will admit to having thoroughly examined her briefs in this matter. But before you start getting your panties all in a bunch, I'm referring to the legal briefs, not the thong style ones. Anyway, the question presented to the court by this case (if anyone really cares) is whether there is a "probate exception" to the usual rule that federal courts have subject matter jurisdiction over bankruptcy matters and cases between citizens of different states where the amount at stake exceeds $75,000. Smith's case involves both. A few years back, Smith, then 26, married 89 year old oil tycoon Howard Marshall. 14 months later he died. Litigation ensued over whether Marshall had left Smith anything in his will. Part of that litigation ended up in federal court. The U.S. Court of Appeals for the 9th Circuit, whose decision is now before the Supreme Court, threw out an award of $88 million in Smith's favor. The appeals court said that the federal district court, the trial court, should not have reviewed Smith's claims related to her late husband's estate, citing the so-called "probate exception." Smith's lawyers will be arguing that there is no probate exception and that the federal trial court properly heard Smith's claims and therefore the $88 million dollar award it found she was due from her husband's estate should be reinstated. Devoted students of civil procedure will be watching this case closely. The rest of us will be more interested in seeing whether Anna Nicole has stuck with that "Trim-Spa" regimen.Trigger Man. Wednesday, Feb. 15. 2006. Yes, my postings have been few and far between as of late with much personal business to attend to including, but not limited to, being overdue in delivering the updated manuscript of my book. But its time to throw down my two cents worth on VP Dick Cheney's hunting accident. First of all, let's keep things in perspective, more people have died with Ted Kennedy at the wheel than with Dick Cheney's finger on the trigger and let's hope things stay that way. The shame is in the aftermath and not the accident itself. Like Chappaquiddick, the accident didn't get reported to the authorities until the morning after. If there were suspicions about alcohol being a factor we only have the word of the shooter that it wasn't. I didn't trust him as to the presence of WMD's in Iraq so why should I trust him about this? Anybody else, except possibly the President himself, would immediately have been expected to promptly report such a mishap to the proper authorities and expect to promptly answer questions about it. But not Cheney. Nor was the press immediately informed of the accident. Although Cheney promptly informed his boss, Bush deferred to Cheney as to when to go public with it, confirming what many people have long thought, that its Cheney who's been telling Bush how to run the country all along. One could argue that this is just another example of a different standard of justice when it comes to the wealthy and powerful. WMD's will be found in Iraq before any criminal charges will ever be filed against Cheney as a result of this. A civil suit by the injured hunting buddy? Hey, wealthy friends don't sue wealthy friends. Assuming the victim makes a full recovery (and I certainly hope he does) this will all blow over. But in the meantime, its yet another reminder how this administration continues to act as if its above the law.Best joke I've heard to come out of this. "Of course he didn't have a hunting license, you don't need a license to hunt lawyers out of season in Texas!" Blake Plays the Bankruptcy Card. Saturday, Feb. 4, 2006. When I last wrote about the verdict in the Robert Blake civil trial I wrapped up by observing that Blake may not have much left in the way of assets to satisfy any judgment entered against him. So it should come as no surprise that yesterday Blake filed for bankruptcy. Not mentioned in either the L.A. Times or the Associated Press articles is the fact that the bankruptcy filing will effectively stay or put on hold any attempt to collect the $30 million dollar verdict of the jury. I would have expected Blake to have made his motion to set aside the jury's verdict by now but that hasn't been necessary as the judge at the civil trial took ill and went out on medical leave soon after the verdict was reached. As a result, the verdict hasn't been formally entered as a judgment triggering the 15 days within which Blake would have to move for a new trial. If collecting on the judgment is a game of poker, Blake's hand is flush. Bankruptcy isn't the only card that he's holding.Phil's Depo Now on Record! Saturday, Jan. 28, 2006. The judge in the Phil Spector murder trial has finally gotten around to ruling that prosecutors may see portions of a deposition that Spector gave in his lawsuit against his former attorney, Robert Shapiro. Surprise? Hardly. I predicted this outcome back in December. Spector's attorneys argued that the depo was subject to a confidentiality agreement between Shapiro and Spector, but in the absence of a legally recognized privilege, confidentiality agreements can't keep information that might be relevant out of a trial. In ruling that prosecutors could have access to 85 pages of the deposition transcript, the judge stated; "There is not a smoking gun, but there is, in my mind, information that is discoverable." What did the judge mean by "discoverable?" It means that even if the information in the depo might not be relevant and admissible at the murder trial, prosecutors can nevertheless find out or "discover" what material is there if the information appears reasonably calculated to lead to the discovery of admissible evidence. Given that liberal standard its hard to argue that anything is not "discoverable." This is but the latest in a long list of setbacks for Spector as he fights the murder charge. The case is expected to go to trial by May.Correction to 12/7/05 Post. Tuesday, Jan. 24, 2006.
Unshakable Justice. Friday, Jan. 20, 2006. I know one thing I've done that L.A. County Superior Court Judge George H. Wu hasn't done, shaken Jesse Jackson's hand. Jackson extended his hand to the judge at the conclusion of his testimony in a lawsuit where Jackson has been accused of roughing up conservative black minister Jesse Lee Peterson. The front page of this morning's L.A. Times had a picture of the judge waiving off Jackson who was extending his hand. The story brought to mind an experience I had many years ago when I was prosecuting a burglary case in Santa Barbara Superior Court. A witness I had called was late in arriving. I was in the process of explaining to the judge that I needed a recess until the witness arrived when the doors of the courtroom flew open and the breathless witness came trotting in. An unsophisticated man, he walked up to the witness stand and immediately extended his hand to the judge to shake it. The judge, not wanting to snub the witness in front of the jury graciously shook his hand. Of course, Jesse Jackson should have known better. Shaking a judge's hand in front of the jury is simply not done in the courtroom. Its sort of like the Queen of England. If she wants to shake hands with you she will initiate it. Otherwise, keep your hands to yourself. By the way, newer courtrooms are laid out such that there is no opportunity for this kind of faux pas. Unlike the courtrooms of the past where the witness stand was immediately next to the judge's bench, there is now considerable distance between the bench and the witness stand.Spending an Evening With a Legend. Thursday, Jan. 19, 2006. Fresh from his appearance before the Senate Judiciary Committee where he testified on behalf on Samuel Alito, Senior U.S. Circuit Judge, Ruggero J. Aldisert addressed a group of law students and members of the local bar who assembled at Santa Barbara College of Law last night. As I've pointed out before, Aldisert has been a resident of Santa Barbara for the last 17 years. Having been a judge at one level or another for 45 of his 86 years Aldisert has a lot to talk about, but of course everyone was most interested in hearing about his experience testifying at last week's confirmation hearings and the inside scoop on his Third Circuit colleague, Samuel Alito. Aldisert thought the questions posed by the committee members on Alito's judicial philosophy were warranted and that Alito responded to them appropriately and adequately. He thought the questions regarding the nominee's failure to have recused himself in a case regarding the Fidelity Fund and the line of inquiry about Alito's membership in the Concerned Alumni of Princeton, were "a waste of time" especially in light of the revelation this past weekend that committee member Ted Kennedy had just resigned from a Harvard Alumni club that excluded women from membership. Aldisert has not only served with Alito on the bench for the last 15 years he has also known Alito since the latter clerked for one of the other judges on the Third Circuit. His description of Alito as a person: "a genteel man," not garrulous, "sharp as a whip and a brilliant legal mind." He assured us that "Sam" is not an ideologue who starts with a result in mind then figures out how to get there. As for Alidert's own view of the concept of stare decisis he follows the approach of the late Harvard Law School Dean, Roscoe Pound, the law must be stable but at the same time, move forward. When Aldisert was asked how he thought he would fare if he himself had been nominated in today's atmosphere he said "I wouldn't have a chance" having written a half-dozen books, over 30 law review articles and having a track record of over 30 years worth of opinions. Aldisert observed that only those who are "odorless and colorless" can be nominated these days. Did he think it was a conflict for him to be testifying on behalf of a judge, who if confirmed, would be reviewing his decisions? Aldisert answered that ever since he was appointed to the Third Circuit in 1968 the ABA has asked him for his input on every district court judge nominated within the Third Circuit, every federal appellate court judge nominated and every nominee to the U.S. Supreme Court and no one ever raised a question about there being a conflict.Questions from the audience weren't confined to the Alito confirmation. How does Aldisert live in Santa Barbara and still actively participate as a judge of the Third Circuit which is located in Philadelphia? Cameras in the courtroom. When they have oral argument and Aldisert is on the panel, he's hooked up by video from his chambers in Santa Barbara. After the arguments are heard the courtroom in Philadelphia is cleared of all but the judges and his clerks leave his chambers in Santa Barbara leaving the three judges to have their post-argument conference via video. Aldisert's also one of the great name droppers of all-time counting among his close personal friends the late Supreme Court Justices Harry Blackmun (who authored Roe v. Wade) and "Bill" Brennan, the late Pennsylvania Senator Hugh Scott (who supported Aldisert's nomination to the Third Circuit and current Pennsylvania Senator and Chair of the Judiciary Committee, Arlen Spector, whom he first met when Spector was District Attorney of Philadelphia. Must be nice to have friends in high places. Life After the Jackson Trial, The Old Sheriff Rides Back Into Town. Tuesday, Jan. 10, 2006. Despite the total defeat suffered by the Santa Barbara County DA and Sheriff in the Michael Jackson trial, there was suprisingly little negative fallout from the decision to spend perhaps millions of dollars in prosecuting Jackson. Sure, there was some occasional grumbling about the "waste of taxpayer dollars" but no sustained discussion of it or any hints there would be retribution at the ballot box. Of course, Tom Sneddon had long ago announced his decision not to run for re-election. Sheriff Jim Anderson was nearing the end of his first term in office and there was absolutely no talk of anyone running against him. However, Anderson has proven to be his own worst enemy and is already well on the way to snatching defeat from the jaws of victory. It started last fall when Dawn Hobbs of the Santa Barbara News-Press reported that the Sheriff had withheld from the District Attorney the fact and the results of an investigation where one member of the Sheriff's Council (an influential group of fundraisers for the Sheriff's Department) had verbally assaulted and physically shoved to the ground another member of the council, all of this occurring in the sherrif's headquarters and in the presence of the Sheriff himself. Things swept under the rug have a way of getting bigger and uglier when they are finally uncovered and this was no exception. The offending council member eventually was convicted by plea of disturbing the peace and resigned his position on the council. The attendant fallout resulted in council members taking sides and questions being asked about the finances of the council as well as whether influence in the Sheriff's department was being offered for sale to the wealthier citizens of the county. Ultimately, Anderson disassociated himself from the Sheriff's Council but the damage was done. Inevitably there was talk about Anderson being opposed in the upcoming election. Potential candidates floated their names then soon went away. When one of the Sheriff's command staff appeared willing to run against him, Anderson called him in and not so subtly reminded him of what side his bread was buttered on. That was certainly a mistake from an ethical point of view but it may prove to have been a greater mistake from a tactical point of view. Instead of being opposed by a little-known candidate from within the office, Anderson now finds himself opposed by his predecessor, the very well-known former Sheriff Jim Thomas, who today announced his candidacy. Those of you outside of Santa Barbara County probably know Thomas best as an NBC Legal Analyst during the Michael Jackson trial. Thomas' entry into the race is simply Anderson's worst nightmare. Although everyone agrees that Anderson is a nice guy, there are those within the department who feel that Anderson has been a disappointment as Sheriff. As weaknesses they cite Anderson's desire to micromanage but ultimately being unwilling to make decisions in a timely manner. If Anderson has been wounded and therefore become vulnerable in the past six months all of those wounds have been self-inflicted. Once he found himself in a hole he didn't know enough to stop digging. From Anderson's point of view, indeed from anyone's, there could be no more formidable opponent than Thomas. He was a popular sheriff who left office on his own time table. He has name recognition and knows how to handle himself with the media and in front of the cameras. If you're Anderson what could be worse? I don't know. But if anyone can take a bad situation and make it worse, Anderson has shown that he's the guy.Alito Hearings, One of the Witnesses is My Neighbor! Monday, Jan. 9, 2006. The Senate confirmation hearings for Samuel Alito begin today and on Thursday of this week seven current and former federal appellate court judges will testify on behalf of Alito. One of those scheduled to speak that day is Senior U.S. Circuit Judge, Ruggero J. Aldisert. A resident of Santa Barbara, Aldisert is a former Chief Judge of the Third Circuit which of course is the court that Alito presently sits on. So what's a judge of the Third Circuit, doing living in California? When Judge Aldisert elected to take "senior" status he realized that he could move his chambers anywhere in the United States. He chose Santa Barbara (which in itself is an indication of what a brilliant man he indeed is!) I met Judge Aldisert not long after he moved here having been introduced by one of the local Superior Court judges whom I worked for at the time. We became friends, and in past years, he's been a guest speaker at classes I've taught at Santa Barbara College of Law. Aldisert's appearance at the hearing can only help Alito's cause. Unlike the other judges scheduled to speak on Alito's behalf, Aldisert was appointed to the Third Circuit by a democratic president and counts among his close friends the late Supreme Court Justice William J. Brennan ("Bill" Brennan as Aldisert likes to refer to him). Given Alito's 1985 Reagan administration job application where he professed disagreement with many decisions of the Warren court, Aldisert's Warren court ties should go a long way to assuage the fears of moderate democrats and others who worry that Alito is an activist conservative ideologue. That's the home=town angle. Today's New York Times has a good primer on what's likely to be asked of Alito in this week's hearings.The Beginnings of a Juggernaut. Wednesday, Jan. 4, 2006. The Alito confirmation hearings begin on Monday and I'm ready to go out on a limb and make my first prediction of the new year: unless someone catches him in bed with a dead woman or a live man, there is nothing that can stop the confirmation of Alito. He's conservative sure, but with a small "c." Unlike Robert Bork who seemed determined to remake America in his own image (with a billy goat beard to boot) Alito is not a judicial activist. And more importantly, in contrast to Bork, he appears to be genuinely likeable. The confirmation hearings should certainly provide more theater than the John Roberts hearings. But Alito has given every indication that he can handle himself well before the Senate committee and in fact, the committee members may find themselves overmatched and outwitted. He's conservative but not the extremist that some groups have made him out to be. He can disagree without being disagreeable. Sure, he will have some 'splainen to do. Particularly when it comes to his justice department job application and the memos he wrote after he got the job in the Reagan administration, but he should be more than up to the task. Most interesting should be his response to questions about his views on Bush's authorization of warrantless wiretaps. (Look for him to dodge that question on the grounds that the issue may soon come before the court.) Alito will prove middle of the road enough to appease the moderate democrats while at the same time not causing the true liberals to work themselves up into a lather. In fact, by the time its all over, the hearings may be a '60's love in.My Christmas Wish List Sunday, Dec. 25, 2005. Merry Christmas! There's two words you will never read on George Bush's White House greeting cards. Anyway, here's what I thought Santa should have left under the tree for some of the people who were in the news this past year. After you're done, click here to view my greeting card.Michael Jackson: Some age appropriate friends. "Scooter" Libby: An age appropriate nickname. Phil Spector and Thomas Mesereau: Haircuts. Jackson jurors Eleanor Cook and Ray Hultman: Some backbone. Lindsay Lohan: Driving school. George Bush: Law school. Michael Brown: Management School. Samuel Alito: A paper shredder. Harriet Miers: A paper trail. Judge Rodney Melville: Cameras in the courtroom. Gloria Allred: A courtroom without cameras. Robert Blake: A passing grade on his debtor's exam. Ramsey Clark: Some new clothes. Paris Hilton: Some clothes. Kingdom of Bahrain: Child Abuse Investigators. Aruba: Investigators Beth Twitty: Answers Our Troops in Iraq: A ticket back home. Dick Cheney: A ticket out of town. The People of Iraq: Their Country Back. The People of New Orleans: Their City Back. My Friends in the Media: The next trial of the century. My Readers: Peace and prosperity. Sex, Ties and Videotape. Wednesday, Dec. 21, 2005. One of my friends who attended the hearing called it the sleaziest two days of testimony he ever sat through. (And this guy sat through all of the Michael Jackson trial.) Its the just concluded preliminary hearing of Darnell Riley who is accused of robbery and extortion in the home invasion of Joe Francis, the millionaire producer of the "Girls Gone Wild" tapes. (BTW, I always thought it was just a matter of time before those hard partying Bush daughters showed up on one of those tapes.) At the hearing, Francis described how the defendant surprised him when he returned home from a night of partying by robbing him. Not satisfied with the over $1,000 in cash he took from Francis' home, Riley forced Francis at gunpoint to lie on his stomach and strategically placed a pink implement that can only be purchased at an adult store south of Francis' waist and forced Francis to say how much he enjoyed the infamous crime against nature while he videotaped the whole thing. Riley threatened to put the video on the internet unless Francis paid him over $300,000. The suspect's identity was unknown until Francis former girlfriend, Paris Hilton, tipped Francis and the police off. Riley's lawyer is another former Jackson trial commentator, Ron Richards. Unlike the Jackson trial, cameras were allowed in this courtroom and over the prosecution's objection were permitted to film portions of not only the extortion tape but also about five minutes of raw GGW footage depicting four-way girl-on-girl action that Riley allegedly stole from Francis' home. The only camera crew in the courtroom for the playing of the extortion tape was one from "Dateline NBC." When ABC News and "Inside Edition" realized what they missed they asked NBC if they would share the footage. "No way" was the answer. Finally, a true Dateline exclusive! Although how they will ever use it remains to be seen.News Flash! Mesereau Compliments Jackson Prosecutor! Tuesday, Dec. 20, 2005. Tom Mesereau's reputation as a formidable defense attorney preceded him into the courtroom in the Michael Jackson trial. After watching him in action during that trial I can say that he lived up to that reputation in every respect. My only problem with him was what an ungracious winner he turned out to be. After he had completely vanquished the prosecution with the jury's verdict of not guilty on all counts he continued for days to go on and on about how the charges were "garbage" and "rubbish." Sure, the prosecution made some mistakes particularly with their decision to charge conspiracy and their handling of the testimony of Debbie Rowe, but the decision to bring the charges in the first place was hardly the outrage that Mesereau made it out to be. Anyone who saw the video of the accuser's initial disclosure to the authorities of the molestation would think there was cause to take the case further. Tom Sneddon if nothing else (and I believe there was a lot else) at least had the courage to do what he felt he had to do. There were two things Sneddon was not in control of, how bad a witness the accuser's mother would be and how good of an advocate Mesereau would be in defending Jackson. Anyway, I was pleasantly surprised at the praise Mesereau recently heaped on Ron Zonen. Mesereau was quoted (as I was) in the recent article in the Santa Barbara News-Press (subscription required) on the Jesse James Hollywood case. Mesereau is quoted as describing Zonen as "an outstanding trial lawyer. He's very well prepared, knows his way around the courtroom. He approaches his cases with responsibility, passion and conviction. As prosecutors go he's one of the best I've seen." Its nice to see Mesereau finally giving some credit where credit is due, even if it took him nearly six months to do it. The fact that Mesereau was able to walk Jackson out of the courtroom a free man in spite of Zonen's compelling closing argument makes Mesereau's accomplishment all the more impressive. BTW, for those of you who are interested in the Hollywood case, Scott Hadly's three-part series of which the quoted article is a part of and started to run in the News-Press on Sunday is the definitive account of the case this far.Don't Bother Him With The Facts. Saturday, Dec. 17, 2005. Has anyone else noticed that George Bush has been acting more like a judge than a president lately? First, he declared that he believes former House majority leader Tom DeLay is innocent of the money-laundering charges pending against him. Such a proclamation is usually reserved after a trier of fact (namely a judge or a jury) listens to all of the evidence in the case and then makes a decision based on a deliberate consideration of the law and the facts. So what is Bush basing his "not guilty" verdict on? What he's read or heard in the media? Oh wait, a minute, wasn't he just telling NBC's Brian Williams earlier this week that he doesn't have time to read newsmagazines or watch the news on TV? Then it can't be based on anything he read in the paper or saw on TV. Maybe its based on something DeLay told him? Now I'm sure the prosecutor down in Texas would be interested in that. Be careful Mr. President, you might end up being subpoenaed. Then again, maybe its not based on any facts or anything he's read but rather another case of saying, "this is the result I want to see, now find me some evidence to justify it." It worked for him in making the case for going to war in Iraq. Maybe it will work for his old buddy Delay.Then there was the revelation that Bush had shortly after 9/11 donned his magistrate's robe and authorized the wiretapping of citizen's phones without search warrants. The Fourth Amendment to the Constitution protects us from unlawful searches and seizures which of course includes eavesdropping on our private conversations. No search warrants for wiretaps are to be issued unless someone goes before a judge and describes under oath why they have a strong suspicion that something illegal is going on and that they need to eavesdrop in order to thwart the illegal activity or gather more evidence of it. If there are truly exigent circumstances then a warrant can be dispensed with. No one expects to police to wait outside of a building calmly awaiting the issuance of a warrant while a crime is being committed inside. But no one is saying that was the case here. Which brings me back to the point, if somebody's going to be authorizing the gendarmes to listen in on my conversations or search my home or my office, who do I want making that decision, the guy who says, "this is the result I want, now go out and justify it," or someone who listens to the facts and then decides what the result ought to be? I know what my answer is. 78 and Still Kicking Butt! Tuesday, Dec. 13, 2005. Former U.S. Attorney General Ramsey Clark was a guest on the "Today" show Monday morning. I find it remarkable that a former cabinet member in the Lyndon Johnson administration is still alive let alone still in the headlines 35 years after the Johnson administration vacated the White House. Of course he looked like he was wearing his same clothes from the Johnson administration, an old corduroy coat and a wrinkled button-down collar shirt. However, the sharpness of his mind more than made up for the dullness of his fashion sense. I'm not about to hold the fact that he doesn't have a stylist against him. Personally, I find nothing wrong or unpatriotic about his participation in the defense of Saddam Hussein before an Iraqi court. They way I see it there are two things that the U.S. cannot afford to have happen with Hussein's trial. First, we can't afford to have him found "not guilty." Second, if he is found guilty we can't afford to have the Iraqi people or anyone else in the world for that matter, thinking that he did not get a fair trial. Clark's rare combination of being a former high-ranking U.S. official while at the same time being viewed as "anti-establishment" gives him a certain aura of Baghdad street cred. The only person who would have been better qualified to defend Saddam is the late Johnny Cochran. (Imagine those possibilities.) If Katie Couric is going to be the next anchor of the CBS Evening News she better come up with some better questions then "do you believe he's guilty" or "how can you defend someone who is the butcher of Bahgdad?" If lawyers could only defend those they personally believed to be innocent, there would be few lawyers who could defend anyone. I thought that one of the values those of us in the U.S. were trying to impart to the rest of the world is that we don't trample on people's rights, even those whom the greater number of us may presume to be guilty. As Clark said, "I believe in the presumption of innocence, not only in the law but in life as well." Clark, like every other attorney defending a person accused of a crime, is there to see to it that his client gets all the process that he is due. Let's not call the man a "traitor" for doing his job. If we weren't going to give Sadaam a fair trial, then the soldiers who captured him may as well have executed him on the spot. They correctly and thankfully did not do that. Since we chose to go forward with a trial, let's have it be a fair one and let's give him the best lawyer we can. In this case, that lawyer is clearly Ramsey Clark.What Part of "No" Didn't She Understand? Thursday, Dec. 8, 2005. I've never been a fan of Gloria Allred. I don't believe that lawyers should try their cases in the media and Allred has tried far more cases in the media than she has ever tried in any courtroom. I saw her in person several times at the Michael Jackson trial and nothing I saw dispelled my conception of her as being the number one worshiper in her own shrine. She was always stand-offish and noticeably unfriendly. On one of the few occasions I was provided with a driver and a car to get me to an early morning interview up in Santa Maria, my driver told me that earlier in the trial he had Allred as a passenger and she became incensed that he didn't recognize her or know who she was. (Hey, not everyone watches cable news 24/7!) So, now that you know where I stand, here's the story. The judge in the Pam Vitale murder case has issued a gag order prohibiting attorneys, witnesses, investigators, court staff and public officials from talking about the case of the 17-year-old accused of killing the wife of prominent Bay Area defense attorney Daniel Horowitz. What was unusual about the order is that the judge specifically included Allred, who represents a potential witness, the defendant's girlfriend. That means that Allred cannot talk about her client, or the facts of the case, with the media. Of course that effectively puts her out of the legal "pundit" business for this trial. Gloria is apparently not content to sit on the legal analyst sidelines and simply represent a witness in this case. She wants to continue to appear as a guest of the Dan Abrams, Nancy Graces and Greta Van Susterens of the world and continue to blab about what will certainly be one of the high-profile cases of 2006. So, what did she do? She hired an attorney to file a motion to seek "clarification" of the gag order. Was she really prohibited from talking about the case as were all the other parties, witnesses and attorneys for parties and witnesses? The answer, which came in an unusually swift and terse order from the court, is yes. Maybe the cable news networks will learn during the Gloria "blackout" that they can get along without her overexposed self-serving persona.Your Tax Dollars at Work. Wednesday, Dec. 7, 2005. You would think that Congress has plenty to keep it busy. The war in Iraq, the utter lack of response on the part of the federal government to hurricane Katrina and rising oil prices are just a few of the things that easily come to mind should our elected representatives run out of things to do. But what is the House subcommittee on Energy and Commerce going to start looking into today? A "comprehensive review" of the BCS and postseason college football! Yes, that's right, calling the Bowl Championship Series "deeply flawed," the chairman of a congressional committee has called a hearing on the system used to determine college football's national champion. Deeply flawed? Our intelligence that told us that there were WMDs in Iraq is deeply flawed. Social security is deeply flawed. According to the 9-11 Commission, Homeland Security is deeply flawed. College football is not deeply flawed. Look, I like my sports as much as the next guy, maybe even a little more than the next guy, but unless my beloved UCLA Bruins are involved (and trust me, they aren't) I really could care less who is voted the national champion of football. And even if my Bruins were involved and got shafted by a group of ballot counters headed by Katherine Harris and her posse of hanging Chads from Florida, Congress should not waste a minute of its time or a penny of our money investigating it. Have I made my feelings clear?My Suspicions Are Somewhat Confirmed. Wednesday, Dec. 7, 2005. (Correction: The Monterey Herald whom I originally quoted from has corrected the original article upon which this item was based. The Herald stated that due to an error in court records their article incorrectly stated that Eugene Forte had been declared a vexatious litigant. In fact the motion was denied and he has not been so declared. The following blog item was edited on 1/24/06 to reflect that correction.) Last week I cautioned against taking too seriously the allegations of misconduct leveled against the judge presiding over the Diana Hall disciplinary hearing. Much of what I wrote got picked up by Santa Barbara News-Press columnist Barney Brantingham (subscription required). Over the weekend, the Monterey County Herald ran a lengthy article confirming much of what I suspected. It described those making the allegations as having "personal vendettas" against the Monterey County judicial system. For instance, Crystal Powser, the former court clerk who was involved had previously circulated an e-mail to 47 people in the courthouse alleging that her former fiance, a Monterey County Traffic Court Commissioner, fixed tickets for friends, sent her thousands of love letters by e-mail on court time and had sex with her on numerous occasions in the Salinas and Marina courthouses. That lawsuit was dismissed on Nov. 23rd by a visiting judge.He's A Rebel All Right! Saturday, Dec. 3, 2005. Phil Spector may be a musical genius but he is proving himself to be a legal dunce. 40 years after Miranda v. Arizona was decided, he didn't know enough to keep his mouth shut when the police showed up at his home in response to the 911 call that a woman had been killed there. (Maybe he hadn't watched enough old episodes of "Baretta?") Miranda requires that before a suspect who is in police custody can be questioned about a crime, he must be advised of his rights to remain silent and to consult with an attorney. But Spector was neither in custody nor being interrogated when he spontaneously stated "I didn't mean to shoot her" within earshot of a police officer. No surprise that his attorney's motion to suppress the statement was denied and the damning admission can be used as evidence against him in his upcoming trial. Spector first retained the well known, longtime "Mr. Fix-it" Robert Shapiro to defend him. But that association quickly went south when Spector fired Shapiro and then filed a lawsuit against Shapiro to get back the $1 million retainer he had paid him. In the course of the suit over the legal fee, Shapiro took Spector's deposition. Not surprisingly the district attorney's office wants access to the transcript of the deposition to see if it contains anything relevant or possibly even incriminating with regard to the murder charge. Spector first claimed the info in the deposition was subject to the attorney-client privilege, but to validly assert that privilege the disclosure must take place while the attorney still represents you, which it did not and there must be an expectation that the information will be kept confidential. Of course the very purpose of taking an opposing party's deposition is to discover information that you can use against them so there could not have been a reasonable expectation that whatever Spector told Shapiro in the depo would stay within the four walls of the conference room. Nevertheless, Spector is claiming he had a separate confidentiality agreement with Shapiro regarding the deposition. Even if that is so, confidentiality agreements are pretty much worthless once you get into the courtroom. Unless there is a legally recognized privilege, such as attorney-client, you can't say "I'd love to answer that question but I've signed a confidentiality agreement that prevents me from doing so." That just won't fly. The judge in the murder case will rule on whether the deposition can be used as evidence and to what extent at the next pre-trial hearing which is scheduled for December 14th.Are You Ready for Some Football? Thursday, Dec. 1, 2005. I always thought that the Republicans were the party in favor of less government, less intrusion into people's lives, judicial inactivism, laissez-faire, live and let live, get off my back, I got mine I hope you get yours, etc. That's why I was so surprised when Republican Senator Arlen Specter jumped into the dispute between the Philadelphia Eagles and their star wide receiver and world class crybaby, Terrell Owens championing the cause of Owens. Hard to believe, one of the most senior and most respected senators of the party of big business telling big business how to run their business. Oh well, I guess it all depends on whose ox is being gored. For you non-football fans let me bring you up to speed. The athletically gifted and talented Owens had become such a pain in the posterior maximus that his employer, the Philadelphia Eagles, bit the bullet and exercised their rights under the collective bargaining agreement by suspending Owens for four games without pay for "conduct detrimental to the team," and deactivated him with pay for the remainder of the season after the suspension ended. Specter said it was "vindictive and inappropriate" for the Eagles to forbid Owens from playing. Now if they are paying the guy they have the right to play him, bench him, or tell him not to suit up at all. I mean, its their money and their business and this is America right? For whatever reason the thought of them not letting Owens play upset Spector so much that he threatened to play the anti-trust card and drag the NFL before the U.S. Senate. He later backed down on that threat. But the fact that Specter got in such a lather about this makes me wonder, was the Senior Senator from Pennsylvania crossing the border into neighboring New Jersey (Atlantic City to be specific) to place an occasional wager on his home town Eagles? I mean, there has to be a capitalist motive in this somewhere.Before You Jump to Conclusions Consider This. Saturday, Nov. 26, 2005. I've posted here before about the California Judicial Performance Commission's inquiry into the allegations against Santa Barbara Superior Court Judge Diana Hall. The hearings were abruptly and mysteriously recessed shortly after all of the evidence had been received. For nearly a week there was no explanation as to why the Commission suddenly suspended the proceedings. Then on Thanksgiving Day, the Santa Barbara News-Press (subscription required) reported that the proceedings were halted by the Commission after it learned that one of the three judges on the fact-finding panel allegedly made crude sexual comments about Hall that gave "an appearance of impropriety." Adding even more intrigue to the story was the revelation that the woman making this allegation, Crystal Powser, a former court clerk, had been invited by one of the judges on the panel, Michael S. Fields of Monterey, down to Ventura where the hearing was being held to join him at his hotel for a tryst. All of the ingredients for a sensational scandal are there, a judge using the opportunity of an out-of-town assignment to rendezvous with a paramour and during the pillow talk he reveals that his mind is already made up about the case he is deciding and ridicules the subject of the inquiry to boot. Yet, if you read the article carefully there are reasons to be skeptical of the allegations of Powser. The first clue that something is amiss is the fact that the declaration claiming wrongdoing was not filed with the Judicial Performance Commission but rather was filed in an unrelated lawsuit against another judge in Monterey County. The Monterey Superior Court took the highly unusual step of issuing a terse press release confirming that the declaration had been filed and saying that no further information could be provided. So what is that about? The News-Press article offered no information about the parties or subject matter of this other lawsuit. Also curious was the fact that the declaration was filed the very next day after the alleged tryst. The Associated Press picked up the story on Friday but perhaps out of wariness of the allegations, offered even fewer details than the News-Press article. What's not included in the print stories can be found by a little investigation on the Internet.Let's start with what the other lawsuit is about. The case is Forte v. O'Farrell, (Monterey Super. Ct. No. M72599). The plaintiff, Eugene E. Forte alleges that Robert O'Farrell, the supervising civil judge of the Monterey County Superior Court, and other judges of that court, caused him emotional distress and abused his due-process rights. Forte claims O'Farrell violated his rights when the judge had deputies arrest him because Forte announced his intent to disqualify O'Farrell in another civil suit he had filed. Hmmm. So who is Forte? I don't know, but he does have a website called AttorneyBusters.com that "is dedicated to exposing corruption of the American judicial system by corrupt attorneys, judges, judicial officers, public officials and members of the media . . ." Forte represents himself in the lawsuit. I'm not saying that a plaintiff representing himself is always the reflection of a lack of underlying merit, but with 150,000 attorneys actively practicing law in California, there is usually no problem finding a lawyer to take a case that has merit, even where the defendant is powerful and the cause unpopular. One of Forte's recent motions raises more red flags. He's asking that the federal government take charge of the Monterey Superior Court, the California Attorney General's Office, the California Governor's Office, and the Commission on Judicial Performance. That's not something that anyone would ever realistically expect to be granted. Still not skeptical? Then consider Ms. Powter's declaration itself. (Warning, the language is very explicit.) It's crude, sloppily drafted and over-the-top in its descriptions of Ms. Powter's claims. There is a clear inference in the fourth paragraph that Powter and Forte were trying to set Fields up by placing him in a compromising position. The statements attributed to Fields could have been easily fabricated. After all, the substance of the allegations against Hall that are repeated in the declaration had been widely reported for quite some time, and Fields' alleged joking about Hall's female roommate having the last name "Dykeman" is an obvious irony. Finally, many of the things attested to in the declaration are gratuitous having nothing to do with either the disciplinary hearing or the Monterey court case and are included only for their shock value. To be fair, there may be physical evidence in the form of hotel records and restaurant tabs that corroborate some of this. If there are, I'm sure we will hear about them. For now, the Judicial Performance Commission has to treat this like a bomb threat, that is, evacuate the building or in this case, halt the proceedings. In the meantime let's not forget that sometimes the very fact that stories appear in print lends credence to the allegations contained within them. But in this case I'm skeptical. Now that you know what I know, perhaps you will be too. It Must Be Sweeps Month. Thursday Nov. 24, 2005 I had assumed that most people were tired of hearing about Michael Jackson at this point but I must be wrong. If you need to boost the ratings, you can always count on Michael. How else can one explain the sudden spike in stories about the gloved one in the past two weeks? For starters, there was Diane Dimond promoting her new book "Be Careful Who You Love |
Contact
Multimedia Archive
" last week on a number of shows including "