Archive for March, 2015

Did Forty-Seven Senators Violate the Logan Act In Writing IRAN Leaders During U.S. Negotiations?

Saturday, March 21st, 2015

Logan Act

From Wikipedia, the free encyclopedia

Logan Act

Long title An Act for the punishment of certain Crimes therein specified.
Enacted by the 5th United States Congress

Citations

Statutes at Large Stat. 613

Codification

U.S.C. sections created 18 U.S.C. § 953

Legislative history

  • Introduced in the House by Roger Griswold (FCT)on December 26, 1798[1]
  • Passed the House on January 17, 1799 (58–36)
  • Passed the Senate on January 25, 1799 (18–2)
  • Signed into law by President John Adams on January 30, 1799

United States Supreme Court cases

United States v. Curtiss-Wright Export Corp.

The Logan Act (1 Stat. 61318 U.S.C. § 953, enacted January 30, 1799) is a United States federal law that forbids unauthorized citizens from negotiating with foreign governments having a dispute with the U.S. It was intended to prevent the undermining of the government’s position.[2]

The Act was passed following George Logan‘s unauthorized negotiations with France in 1798, and was signed into law by President John Adams on January 30, 1799. The Act was last amended in 1994, and violation of the Logan Act is a felony.

Contents

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Background[edit]

In 1798, amid tensions between the U.S. and France, President Adams sent three envoys to France to negotiate. Negotiations were unsuccessful. Dr. George Logan of Pennsylvania, a state legislator andpacifist, in 1798 engaged in semi-negotiations with France as a private citizen during the Quasi-War.[2][3]

Kevin Kearney, writing in the Emory Law Journal, described Dr. Logan’s activities in France:

Upon his arrival in Paris, he met with various French officials, including Talleyrand. During these meetings, he identified himself as a private citizen, discussed matters of general interest to the French, and told his audience that anti-French sentiment was prevalent in the United States. Logan’s conversation with Merlin de Douai, who occupied the highest political office in the French republic, was typical. Logan stated that he did not intend to explain the American government’s position, nor to criticize that of France. Instead, he suggested ways in which France could improve relations with the United States, to the benefit of both countries. He also told Merlin that pro-British propagandists in the United States were portraying the French as corrupt and anxious for war, and were stating that any friend of French principles necessarily was an enemy of the United States. Within days of Logan’s last meeting, the French took steps to relieve the tensions between the two nations; they lifted the trade embargo then in place, and released American seamen held captive in French jails. Even so, it seems that Logan’s actions were not the primary cause of the Directory’s actions; instead, Logan had merely provided convenient timing for the implementation of a decision that had already been made.[4]

Despite the apparent success of Logan’s mission, his activities aroused the opposition of the Federalist Party in Congress, who were resentful of the praise showered on Logan by oppositional Democratic-Republican newspapers. Secretary of State Timothy Pickering, also of Pennsylvania, responded by suggesting that Congress “act to curb the temerity and impudence of individuals affecting to interfere in public affairs between France and the United States.” The result was that Rep. Roger Griswold introduced the Logan Act. [5] It was pushed through by the Federalist majority in Congress by votes of 58–36 in the House, and 18–2 in the Senate.[4]

Subsequently, Logan himself was appointed and then elected as a Democratic-Republican to the United States Senate from Pennsylvania, and served from July 13, 1801, to March 3, 1807. He was unsuccessful in getting the Logan Act repealed. Despite the Logan Act, he went to England in 1810 on a private diplomatic mission as an emissary of peace in the period before the outbreak of the War of 1812, but was not successful.

Text[edit]

§ 953. Private correspondence with foreign governments.

Any citizen of the United States, wherever he may be, who, without authority of the United States, directly or indirectly commences or carries on any correspondence or intercourse with any foreign government or any officer or agent thereof, with intent to influence the measures or conduct of any foreign government or of any officer or agent thereof, in relation to any disputes or controversies with the United States, or to defeat the measures of the United States, shall be fined under this title or imprisoned not more than three years, or both.

This section shall not abridge the right of a citizen to apply himself, or his agent, to any foreign government, or the agents thereof, for redress of any injury which he may have sustained from such government or any of its agents or subjects.

1 Stat. 613, January 30, 1799, codified at 18 U.S.C. § 953 (2004).

Constitutional authority for foreign relations[edit]

Article II, Section 2, Clause 2 of the United States Constitution includes the ‘Treaty Clause,’ which empowers the President of the United States to propose and chiefly negotiate agreements, which must be confirmed by the Senate, between the United States and other countries, which become treaties between the United States and other countries after the advice and consent of a supermajority of the United States Senate.

[The President] shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur…

In United States v. Curtiss-Wright Export Corp., 299 U.S. 304 (1936), Justice Sutherland, writing for the Court, observed,

“[T]he President alone has the power to speak or listen as a representative of the nation. He makes treaties with the advice and consent of the Senate; but he alone negotiates. Into the field of negotiation the Senate cannot intrude; and Congress itself is powerless to invade it. As Marshall said in his great argument of March 7, 1800, in the House of Representatives, ‘The President is the sole organ of the nation in its external relations, and its sole representative with foreign nations.’

Accusations of violations[edit]

In general, the Act is intended to prohibit unauthorized American citizens from interfering in disputes or controversies between the United States and foreign governments. Although attempts have been made to repeal the Act, it remains law and at least a potential sanction to be used against anyone who without authority interferes in the foreign relations of the United States.

Washington has threatened to use the Act to stop Americans from negotiating with foreign governments. For example, in February 1941 Under Secretary of State Sumner Welles told the press that former President Herbert Hoover might be a target for prosecution because of his negotiations with European nations over sending food relief.[6]

The only actual indictment under the Logan Act was one that occurred in 1803 when a grand jury indicted Francis Flournoy, a Kentucky farmer, who had written an article in the Frankfort Guardian of Freedom under the pen name of “A Western American.” In the article, Flournoy advocated a separate nation in the western part of the United States that would ally with France. The United States Attorney for Kentucky, an Adams appointee and brother-in-law of Chief Justice John Marshall, went no further than procuring the indictment of Flournoy. The purchase of the Louisiana Territory later that year appeared to cause the separatism issue to become moot.[2][7]

During the 1968 presidential election, Nixon supporter Anna Chennault, told the South Vietnamese government that Nixon would give them a better deal if they waited.[8][9]

In 1975, Senators John Sparkman and George McGovern were accused of violating the Logan Act when they traveled to Cuba and met with officials there. In considering that case, the U.S. Department of State concluded:

The clear intent of this provision [Logan Act] is to prohibit unauthorized persons from intervening in disputes between the United States and foreign governments. Nothing in section 953 [Logan Act], however, would appear to restrict members of the Congress from engaging in discussions with foreign officials in pursuance of their legislative duties under the Constitution. In the case of Senators McGovern and Sparkman the executive branch, although it did not in any way encourage the Senators to go to Cuba, was fully informed of the nature and purpose of their visit, and had validated their passports for travel to that country.

Senator McGovern’s report of his discussions with Cuban officials states: “I made it clear that I had no authority to negotiate on behalf of the United States — that I had come to listen and learn…” (Cuban Realities: May 1975, 94th Cong., 1st Sess., August 1975). Senator Sparkman’s contacts with Cuban officials were conducted on a similar basis. The specific issues raised by the Senators (e.g., the Southern Airways caseLuis Tiant’s desire to have his parents visit the United States) would, in any event, appear to fall within the second paragraph of Section 953.

Accordingly, the Department does not consider the activities of Senators Sparkman and McGovern to be inconsistent with the stipulations of Section 953.[10]

In 1984, President Ronald Reagan stated that the activities of the Reverend Jesse Jackson, who had traveled to Cuba and Nicaragua that year and had returned with several Cuban political prisoners seeking asylum in the United States, may have violated the Logan Act; but Jackson was never indicted.[2]

In 1987 and 1988, President Reagan was furious at what he felt to be House Speaker Jim Wright‘s “intrusion” into the negotiations between Nicaragua‘s Sandinista government and the Contras for a cease-fire in the long civil war. The National Security Councilconsidered using the Logan Act to muzzle Wright, but nothing ever came of it.

In June 2007, Representative Steve King introduced legislation that would prohibit then-Speaker of the House Nancy Pelosi from drawing on Federal funds to travel to foreign states which the U.S. deems to sponsor terrorism. King claimed that Pelosi’s dialogue with the Syrian government violated the Logan Act.[11] The amendment was not adopted.

In March 2015, 47 Republican senators sent a letter to the Iranian government regarding President Barack Obama‘s attempts to broker a nuclear arms agreement between Iran and six major powers (P5+1).[12][13] The letter warns Iran of the limitations of President Obama’s term in office and constitutional powers – noting that anything done without the advice and consent of the Senate could be undone by the next President. This prompted some commentators to suggest that the letter may have violated the Logan Act.[9][14][15][16] A petition on the White House‘s We The People website had accumulated signatures from over 300,000 people requesting the Obama administration to prosecute the 47 senators under the Logan Act.[3]

Constitutionality[edit]

There has been little judicial discussion of the constitutionality of the Logan Act.

The Southern District of New York in Waldron v. British Petroleum Co., 231 F. Supp. 72 (S.D.N.Y. 1964), mentioned in passing that the Act was likely unconstitutional due to the vagueness of the terms “defeat” and “measures,” but did not rule on the question.

In 2006, the U.S. House Committee on Standards of Official Conduct warned departing members of the terms of the Act in an official Memorandum. The Committee commented in the Memorandum that the Act, “…has never been the basis of a prosecution, and this Committee has publicly questioned its constitutionality… Members should be aware, however, that the law remains on the books.”[17]

Proposed revisions[edit]

The chair of the House Judiciary Committee in the 109th Congress, F. James Sensenbrenner of Wisconsin, proposed a comprehensive revision and modernization of the federal criminal code in 2006. The bill, H.R. 6253, was not enacted into law. What is noteworthy is that the Logan Act was significantly revamped in the proposed legislation to prohibit only knowingly false statements made under oath. The section revising the Logan Act was proposed to read as follows:

Sec. 923. False statements influencing foreign government — Whoever, in relation to any dispute or controversy between a foreign government and the United States, knowingly makes any untrue statement, either orally or in writing, under oath before any person authorized and empowered to administer oaths, which the affiant has knowledge or reason to believe will, or may be used to influence the measures or conduct of any foreign government, or of any officer or agent of any foreign government, to the injury of the United States, or with a view or intent to influence any measure of or action by the United States or any department or agency thereof, to the injury of the United States, shall be imprisoned not more than ten years.[18]

See also[edit]

 

TODAY IN 1816: SCOTUS RULES THAT IT HAS THE FINAL SAY ON FEDERAL LAW QUESTIONS

Friday, March 20th, 2015

March 20, 2015

In case you hadn’t been following the story, there’s quite a dispute in Alabama between state and federal judges.

The spat began with a January 2015 federal court ruling that struck down Alabama’s same-sex marriage bans as violating the U.S. Constitution.  After a couple of unsuccessful attempts to stay the ruling, the U.S. Supreme Court itself refused to stay the ruling (more on that in this post) – but not before Chief Justice of the Alabama Supreme Court Roy Moore issued an order instructing the state’s probate judges to refuse to comply with the federal court’s order.

That dispute continues today, with federal judges insisting that state judges comply with their rulings, and Alabama state judges – the state supreme court, specifically – countering that the same-sex marriage ban is perfectly constitutional.

Of course, there’s a case that’s directly on point in resolving this dispute, one that is coincidentally celebrating its 199th anniversary today: Martin v. Hunter’s Lessee.

The 1816 ruling should be familiar to law students as one of the major pillars of federal court jurisdiction and authority, in that it explicitly held that the U.S. Supreme Court is the nation’s ultimate authority on interpreting federal law, superseding all state court interpretations thereof.

The dispute in the case arose over competing claims to land owned by Lord Fairfax, a British loyalist during the Revolutionary War.  Virginia seized the land from Fairfax during the war and transferred it to David Hunter.  After the war, however, the U.S. entered into a treaty with Great Britain, and one of the provisions thereof guaranteed the protection of lands owned by loyalists such as Fairfax.

Subsequently, Thomas Martin, Fairfax’s nephew and heir to the land after Fairfax died in 1781, sued to recover the confiscated land in Virginia state court.  Martin won at the trial court level, but on appeal to the Virginia Court of Appeals (then the state’s highest court), Martin lost, with the court ruling that Hunter was the legal owner of the land.

Upon further appeal, the U.S. Supreme Court reversed the Virginia high court’s decision, finding that the tract of land rightfully belonged to Martin pursuant to the treaty.

However, the Virginia Court of Appeals refused to respect the Supreme Court’s ruling.  It further held once again that Hunter was the proper owner of the tract and that the U.S. Supreme Court had no authority to review and overturn its decisions.  Specifically, the Virginia court stated that state courts had the ultimate authority to interpret federal laws as they applied solely to state law concerns in state court.

The U.S. Supreme Court once again heard the appeal from the Virginia court’s ruling, and once again reversed it.  The Court held that the Judiciary Act of 1789, authorized by Article III of the Constitution, expressly allows the Supreme Court to review decisions of state courts, and that the Supreme Court had the final say on all interpretations of federal law.

And that decision has stood for nearly 200 years as a pillar of authority for the Supreme Court.  Without it, not only would we no longer have numerous landmark Court decisions (including Brown v. Board of Education and Miranda v. Arizona), but every individual state would conceivably have its own version of the U.S. Constitution based on two centuries’ worth of state court interpretations.

In spite of Martin’s long established character as one of the most fundamental foundations of federal legal authority, we are today witnessing a state court system that is attempting to flout this authority.

There is, nevertheless, little doubt that Alabama will ultimately prove unsuccessful in its efforts to evade federal authority on the issue (assuming, of course, that the U.S. Supreme Court rules as expected in its forthcoming same-sex marriage decision).  And this inevitability is due to the principles first laid out in Martin.

- See more at: http://blog.legalsolutions.thomsonreuters.com/legal-research/today-in-1816-scotus-rules-that-it-has-the-final-say-on-federal-law-questions/#sthash.MN3w3rgW.dpuf

Rogue Alabama Chief Justice has no legal rationale

Thursday, March 19th, 2015

March 18, 2015 1:01 AM

 

Nancy Marcus

Alabama Supreme Court Chief Justice Roy Moore’s unauthorized, so-called “administrative order” to state officials instructing them to deny same-sex couples marriage licenses, in defiance of a federal court order (and Supreme Court order), continues to inspire vigilante behavior weeks later.

The continuing chaos from Moore’s “order” has been described by Moore’s colleague, Justice Michael Bolin, as the legal equivalent of a three-ring circus. Some state officials continue to cite Moore’s “order” as authority to refuse marriage licenses and, more recently, to deny adoptions, while others have returned to court seeking clarification of what should be settled law. In the meantime, ethics charges have, appropriately, been filed against Moore. This is not his first ethical fiasco; Moore was previously removed from the bench for disobeying a federal court order.

Although Moore has his defenders, there is nothing admirable about a state Supreme Court justice defying the rule of law. Court-watchers should not be blindsided by the rhetoric spouted by Moore defenders and followers. The law, quite simply, is not on his side.

Moore has failed to cite any legal authority allowing a unilateral “administrative order” in contravention of a federal judge’s order. Moore’s “order” was procedurally out of bounds – not connected with a case in his court, not agreed to by the Alabama Supreme Court and not authorized by Alabama procedural laws governing administrative orders.

Even if Moore had such authority, his justifications fail on the merits.

First, Moore attempts to hang his vigilante hat on misguided notions of state powers. For example, he has maintained in recent interviews that “there is no law right now that overcomes the Alabama Constitution,” calling the federal court orders a “federal intrusion into state sovereignty.” In a brazen display of disrespect toward the U.S. Supreme Court, he even warned that he would not follow a Supreme Court mandate ordering same-sex marriages.

Such a stubborn state-supremacist stance blatantly conflicts with basic constitutional principles. The U.S. Constitution’s Supremacy Clause and Fourteenth Amendment provide that state laws may not violate the federal Constitution and must protect all citizens equally. The Supreme Court spelled out in the school desegregation case Cooper vs. Aaron that states, including “the officers or agents by whom (the state’s) powers are exerted,” must comply with Supreme Court decisions even if they disagree with them.

Second, Moore has contended that Judge Callie V. Granade “does not have power over anything other than what’s before her court.” Moore’s defenders have elaborated upon this in two ways. Some argue that a federal court injunction may provide only relief to those specific plaintiffs who brought the case, not statewide relief. Others argue that injunctions bind only those defendants explicitly named.

Both contentions are wrong under long-established rules of law.

Federal rules governing injunctions explicitly allow orders directed at both the named defendant state officials and those acting in participation with them. Such broad injunctions are also explicitly allowed under the Declaratory Judgment Act. The Supreme Court and lower federal courts have commonly issued broad injunctions against unconstitutional laws. Ensuring that a federal court may “invalidate” an unconstitutional law in each of its applications is the whole point of such constitutional challenges. Even Justices Antonin Scalia and Clarence Thomas, while dissenting from the Supreme Court’s order allowing same-sex marriages in Alabama to proceed, recognized the customary practice of enjoining laws ruled unconstitutional; they argued only that courts should exercise discretion to “stay” those injunctions pending appellate review.

Thus, the valid federal injunction stopping enforcement of Alabama’s same-sex marriage ban validly extends to the state officials charged with issuing marriage licenses.

Moore similarly cannot justify limiting legal protections only to those plaintiffs who brought the case in the first place.

Failing to protect everyone equally within a federal court’s jurisdiction from unconstitutional state laws would create a serious Equal Protection problem. Although injunctive relief is limited to cases where plaintiffs establish the likelihood of ongoing harm, under that standard, the ongoing actions by Moore and other Alabama officials who continue to harm Alabama citizens by disobeying the federal orders establish the need for a broad injunction.

By thumbing his nose at federal court orders, Moore and his followers call to mind George Wallace standing in the schoolhouse door, blocking access of black schoolchildren to the equal protection of the law in violation of federal orders. The Constitution did not tolerate unequal protection last century, nor does it this century.

Moore would rather these constitutional principles not govern his actions, but they must. The United States Constitution, not the whims of Roy Moore, is the supreme law of this land.

This Ain’t Your Daddy’s Markman Hearing – What deference should Ct of Appeals give to U.S.District Court?

Thursday, March 19th, 2015

James Day and Andy Nguyen, The Recorder

March 18, 2015    | 0 Comments

The U.S. Supreme Court in January issued its opinion in Teva Pharmaceuticals USA Inc. v. Sandoz,13-854, which changed the level of deference the Federal Circuit must show to district court claim construction orders—in part.

For more than two decades, the U.S. Court of Appeals for the Federal Circuit has reviewed claim construction on a de novo basis; in other words, as a pure question of law without showing any deference to the district court. The de novo review standard resulted in a high rate of reversal by the Federal Circuit in claim construction decisions. This caused uncertainty, and the existing standard had been under attack even before being explicitly confirmed in Cybor Corp. v. FAS Technologies, 138 F.3d 1448 (1998).

The New Criteria

With the issuance of the Teva decision, the Supreme Court has changed that standard. The Federal Circuit must now review factual findings underlying a claim construction order for clear error, giving deference to district court judges, though the Federal Circuit will still review the interpretation of patent claim terms itself de novo even if that interpretation is based on the underlying findings of fact. Whether or not the new standard brings more predictability to patent litigation or changes the reversal rate of the Federal Circuit, one thing seems likely: We will be seeing more expert testimony—and the associated expense—in claim construction proceedings than we did under the old standard.

It will be even more critical now for litigants to retain and work with experienced patent litigation counsel to select highly qualified experts who not only have the right credentials and experience to opine on claim construction-specific issues, but who can also clearly and persuasively testify, if permitted, before a district court judge. It will also generally be in the patent owner’s interest to develop a factual record in the district court to make an appeal of those findings less likely to be successful under the clear error standard.

What the Supreme Court Changed

Since the decision in Markman v. Westview Instruments, 517 U.S. 370 (1996), federal district courts have been tasked with interpreting the meaning of terms in patent claims. Until now, those district court claim construction opinions were reviewed de novo by the Federal Circuit. The standard applied to claim constructions based exclusively on the intrinsic evidence, like the patent at issue and its prosecution history. It also applied to any factual conclusions drawn from extrinsic evidence, like expert testimony and dictionary definitions. Under this non-deferential standard, the Federal Circuit has reversed an unusually high percentage of the claim construction orders it has reviewed—sometimes estimated at 50 percent or more.

In the closely watched Teva Pharmaceuticals case, the Supreme Court was asked to change the standard of review to require the Federal Circuit to show deference to factual findings of the district courts. And it did. In a 7-2 decision, the court held that factual findings underpinning a claim construction must be reviewed for “clear error” on appeal.

In other words, the appellate court should accept factual findings of the district courts, unless the appellate court finds they are unsupported by substantial evidence.

How ‘Teva’ will Impact Patent Litigation

It is too soon to tell if the Supreme Court’s ruling will have any impact on the outcome of more than a few cases that turn on disputed expert testimony. As the Supreme Court confirmed in Teva, “When the district court reviews only evidence intrinsic to the patent (the patent claims and specifications, along with the patent’s prosecution history), the judge’s determination will amount solely to a determination of law, and the Court of Appeals will review that construction de novo.”

In other cases, where there are “subsidiary facts” in dispute, the district courts “will need to make subsidiary factual findings” based on the extrinsic evidence. It is “this subsidiary fact-finding [that] must be reviewed for clear error on appeal.” But even in cases where the district court resolves factual disputes, the judge “will then interpret the patent claim in light of the facts as he has found them,” and this “ultimate interpretation is a legal conclusion” subject to de novo review.

There is ample room in the new standard for the Federal Circuit to review most claim construction decisions largely, if not entirely, under the same de novo standard that has applied for years.

Whether or not the Teva decision will have any real impact at the appellate court level, it is likely to change the way litigants present their claim construction arguments and the way district court judges support their claim construction orders. Under the old standard, there was limited benefit to making a strong presentation of extrinsic evidence because even if it was convincing, any factual findings the district judge might make would be reviewed de novo by the Federal Circuit. The Federal Circuit takes the view that extrinsic evidence is “less significant” than the intrinsic record. Phillips v. AWH Corp., 415 F. 3d 1303 (2005).

In light of Teva, a claim construction order based solely on intrinsic evidence will be more easily reversed than a decision with specific factual underpinnings. Litigants are now incentivized to submit more extrinsic evidence, even in cases where they would not have under the old standard, and hope the district judge will use it to craft a favorable opinion with plenty of citations to underlying facts that must be reviewed with deference by the appellate court. There is a greater prospect for each claim construction dispute to become a “battle of the experts,” and there is at least the potential for other extrinsic evidence, like dictionary definitions, to take on greater importance.

All of this will likely lead to more frequent and more involved evidentiary hearings in connection with claim construction proceedings. Indeed, while live expert testimony is uncommon in claim construction proceedings under the old standard, the Teva decision makes live testimony more likely so the district judge can weigh competing evidence, assess credibility and make specific factual findings. Going forward, patent litigants should focus more energy on retaining experts who are qualified to offer testimony in support of specific claim construction positions but who are also effective, credible witnesses.

Why the Supreme Court Changed the Standard

The Teva case presents a situation where disputed extrinsic evidence proved to be dispositive, making it an example of a case where the change in standard may well alter the ultimate result. The main dispute in Teva concerned the meaning of the term “molecular weight” as it appeared in Teva Pharmaceutical’s asserted patent claim.

Sandoz, the defendant, argued the claim was indefinite because the term “molecular weight,” as used in the patent claim, could refer to any one of three different potential measures of molecular weight. The parties presented competing expert testimony on this point, and the district court accepted the testimony of Teva’s, finding the patent sufficiently definite and valid. On appeal, the Federal Circuit conducted de novo review of the lower court’s decision. It implicitly rejected Teva’s expert testimony, finding the term “molecular weight” indefinite.

The Supreme Court vacated the Federal Circuit’s judgment based primarily on Federal Rule of Civil Procedure 52(a)(6), which states a court of appeals “must not … set aside” a district court’s “[f]indings of fact” unless they are “clearly erroneous.” Continuing a theme that has developed over the past decade, the court decided there is no reason patents should be treated differently than other legal documents like contracts and deeds, indicating that, in general, patent law is not exempted from the basic procedures established for all other civil litigation.

According to the Supreme Court, Rule 52 sets out a “clear command.” And, although it ruled in Markman that claim construction poses a question of law for a judge, that did not imply or create an exception to Rule 52 regarding underlying factual disputes. The court also determined that precedent and practical considerations favored clear error review.

In Practice articles inform readers on developments in substantive law. Contact James Cronin with submissions or questions at jcronin@alm.com.

Jim Day is a partner in Farella Braun + Martel’s Intellectual property litigation department. He has 16 years of experience in state and federal courts litigating intellectual property and complex commercial disputes for Internet and other high technology companies. Andy Nguyen is a senior associate in Farella Braun + Martel’s intellectual property litigation department. His practice focuses on representing high technology clients in patent infringement litigation.

Read more: http://www.therecorder.com/id=1202720867458/This-Aint-Your-Daddys-Markman-Hearing#ixzz3UrKGC9B7

What A Fishy Case Tells Us About How The Supreme Court Views Criminal Law

Tuesday, March 17th, 2015

Tuesday, March 17, 2015

The Supreme Court’s recent decision on the scope of a criminal anti-shredding law in Yates v. United States, 135 S. Ct. 1074 (2014), caught headlines in legal and mainstream publications for its unusual fact pattern. In short, a fisherman was accused of destroying fish that he had caught and stored that fell below the minimum length allowed. The odd twist in this story is that he was convicted under a law that was enacted in the face of widespread financial misconduct and often only applies to the destruction of information recording instances of corporate crime. The Justices ultimately gave the financial fraud law a narrow reading, but only in a split decision where no opinion garnered more than four votes.

If you look beyond the headlines and the immediate ruling, the Court’s forty-three page decision, split across plurality, concurring, and dissenting opinions, provides important guideposts about where the Justices see the current state of criminal law.

The Facts: Fishes And SOX

The dispute in Yates originated in 2007 when Officer John Jones of the Florida Fish and Wildlife Conservation Commission boarded a commercial fishing boat captained by John Yates operating in the Gulf of Mexico.  Officer Jones noticed that some caught Red Grouper aboard the vessel appeared shorter than the twenty-inch minimum length permitted by federal regulations. As every lawyer knows, in 2007, commercial fishing vessels such as Mr. Yates’ were required to release “immediately with a minimum of harm” all Red Grouper shorter than the twenty-inch minimum proscribed in 50 C.F.R. § 622.37(d)(2)(ii) (2007).  Officer Jones identified seventy-two fish that fell below the length proscribed in the Code of Federal Regulations but, notably, all seventy-two were within two inches of the minimum length. The officer issued a citation for the offense and instructed Yates and his crew members to leave the offending fish segregated until their ship returned to port.

When the ship returned to port several days later, several of the cold fish had mysteriously grown in length, leading Officer Jones to question the crew members about why the clearly deceased fish had grown. One of them eventually spilled the beans: Yates had instructed his crew to toss the fish that were initially measured by Officer Jones and replace them with new, longer fish.

Almost three years later, Yates was indicted and eventually convicted for violating 18 U.S.C. § 2232(a) and 18 U.S.C. § 1519. The parties agreed that the former statute – a nearly seventy-year-old provision that bars the knowing destruction of property to prevent seizure by government – applied to Yates. Section 1519 was more controversial and its application to Yates became the basis for the case that reached the Supreme Court.

Section 1519 of Title 18 the U.S. Code was enacted as part of the Sarbanes-Oxley Act of 2002, 116 Stat. 745, in light of revelations that Enron’s auditors, Arthur Andersen, had regularly destroyed incriminating evidence that could have implicate both its client and the audit company itself. Section 1519 proscribes that:

Whoever knowingly alters, destroys, mutilates, conceals, covers up, falsifies, or makes a false entry in any record, document, or tangible object with the intent to impede, obstruct, or influence the investigation or proper administration of any matter within the jurisdiction of any department or agency of the United States or any case filed under title 11, or in relation to or contemplation of any such matter or case, shall be fined under this title, imprisoned not more than 20 years, or both.

In short, the statute makes it a felony to modify or altogether destroy “any record, document, or tangible object” with the intent to obstruct an investigation or the administration of any matter within the jurisdiction of a federal agency.

Yates was eventually convicted of violating both § 2232(a) and § 1519 and sentenced to thirty days in prison followed by three year of supervised release.

Ohio Supreme Court weighs ex-inmate’s unlawful imprisonment suit

Thursday, March 12th, 2015

 

Filed on March 12, 2015 by Associated Press

 

Dale Johnston was sent to death row in 1984 for a double homicide he didn’t commit.

He’s spent the years since his 1990 release trying to get back the life he lost.

The Ohio Supreme Court heard arguments Wednesday in Johnston’s latest attempt to win a wrongful imprisonment suit against the state.

Now 81, Johnston described his years under a death sentence as “hell on earth.”

“Death row’s the most horrible place anybody could be,” he said in a recent interview at his home in Grove City in suburban Columbus. “Especially when you know they’re wanting to kill you for something you didn’t do.”

The case dates to 1982, after parts of the dismembered bodies of his stepdaughter, Annette Cooper Johnston, and her boyfriend, Todd Schultz, were discovered in a cornfield a few days after they went missing.

Johnston was indicted the following year, and in 1984, a three-judge panel in Hocking County, based in part on testimony by a hypnotized witness, convicted Johnston of the killings and sentenced him to death on the theory he’d been having an affair with his stepdaughter and killed both in a jealous rage.

An appeals court overturned the conviction and ordered a new trial, but a judge refused to allow the hypnotized witness’ testimony and other evidence and the case was dismissed.

In 2008, two men confessed to the crime, with one saying he killed the couple and the other that he helped dispose of the bodies.

Three years ago, a Franklin County judge declared Johnston innocent, allowing him to seek compensation from the state, but an appeals court reversed the ruling.

Arguing a series of technicalities, the state says because Johnston failed in an earlier attempt to prove wrongful imprisonment, he isn’t eligible to try again.

“Johnston already unsuccessfully brought a wrongful imprisonment action arising out of his criminal convictions,” Debra Gorrell, an assistant attorney general, argued in a court filing last year. “This case seeks a do-over.”

Johnston’s attorney said with the real killer in prison, the state’s arguments help perpetuate a “monstrous inequity.”

Finding that Johnston was wrongfully imprisoned “is necessary to preserve the reputation for justice that the Ohio courts have elsewhere earned,” attorney Todd Long said in a 2014 court filing.

Some justices seemed skeptical of the state’s efforts to fight Johnston, given the judge’s 2012 ruling in his favor.

“Why didn’t the state just suck it up and say, ‘Look, the prosecution of this thing was dead wrong. The investigation of it was wrong. It was a mess. It was a miscarriage of justice for Mr. Johnston’?” asked Justice Paul Pfeifer.

Stephen Carney, Ohio deputy solicitor, emphasized the state’s position that the 2003 law under which Johnston sued doesn’t apply to cases before it took effect.

Johnston worked in construction and later as a handyman, and he now lives quietly in a neat home with his wife, Roberta, on a 2-acre plot where he still puts in a large garden each year.

Ohio courts have awarded hundreds of thousands of dollars in the past in similar cases.

“If I am able to get everything that the state says I’m allowed to have, that’s still an insult when you figure what I lost,” Johnston said.

Innocence is not enough to get you out of prison.

Wednesday, March 11th, 2015

 

By Lara Bazelon

 

Innocence Network

In May, the Innocence Network will hold its annual conference at a glitzy Hilton in Orlando, Florida. Lawyers, students, and activists from all over the country who work to overturn wrongful convictions will gather to do all the regular conference-like things: attend panel discussions, listen to inspirational talks from boldface speakers, network, and socialize. There is also a part of the Innocence Network Conference that is unique and wonderful. Every year, it brings together scores of wrongfully convicted men and women, offering a variety of programs geared toward their specific needs and celebrating their freedom.

The most dramatic moment of the conference comes after a dinner in the hotel’s ballroom, when each exonerated man and woman is invited up to the stage. One by one, they come forward. They are male, female, black, white, Latino, Asian, and Native American. Some are still young and strong, others walk slowly and with assistance. They hail from the Deep South, the Midwest, the Rockies, the East and West coasts, from big cities and tiny rural communities. As their names are called, so are the number of years they served behind bars: five, eight, 13, 18, 28, 34, 39. Collectively, it adds up to centuries.

Slowly, the stage begins to fill, first one row, then another, then another. When every last exoneree has taken his or her place, scores of them are standing shoulder to shoulder, a dizzying tableau of faces and stolen lives. The weight of the collective injustice is heart-stopping. Then the music starts and the exonerees sing and dance together. The hope and joy in the room is deeply moving.

. Bloodsworth was the first American sentenced to death row who was exonerated by DNA fingerprinting.

But here is a dirty little secret about the exonerated, some of whom were on death row, some just days away from execution. They were able to prove that they were wrongfully convicted, yet very, very few could show that they were actually innocent. They were—they are—innocent, but in our legal system, that all-important fact is largely beside the point.

A wrongful conviction stems from a fundamental breakdown in the legal process—what the uninitiated like to call a “technical error.” Prosecutors buried crucial evidence, witnesses lied, police coerced false confessions, defense attorneys performed so poorly that they basically failed to advocate at all. These “technical” breakdowns matter because they violate the Constitution, which guarantees all criminal defendants the right to be free from police and prosecutorial abuses, to have access to favorable evidence in the state’s possession, and to have a defense attorney who will fight for their cause.

If you are a wrongfully convicted man or woman in this country, it is extremely difficult—if not outright impossible—to win your case by advancing the simple argument that you are innocent. Sounds crazy, right? But it’s true. The Supreme Court has repeatedly declined to hold that the federal Constitution allows for so-called freestanding claims of innocence, that is, the right to be let out of prison simply because you didn’t do it, without any other “technical” violation to back up your argument. In the United States, the inmate who raises a compelling case of innocence after a constitutionally proper trial may well be doomed.

This judicial perversion started with the Supreme Court’s 1993 decision in Herrera v. Collins, a textbook example of bad facts making bad law. Leonel Torres Herrera was charged with shooting Officer David Rucker in 1981 and leaving him to die beside his patrol car in a pool of blood. Also left at the crime scene was Herrera’s Social Security card. Officer Enrique Carrisalez and his partner saw Herrera’s car speeding away and gave chase. Herrera pulled over, and when Carrisalez approached, Herrera shot him in the chest. Carrisalez died less than two weeks later.

The state tried the Carrisalez case first, and evidence introduced against Herrera was overwhelming. Carrisalez’s partner testified that Herrera was the shooter, as did the victim himself in the days before he died. The license plate of the killer’s car matched that of Herrera’s girlfriend; when Herrera was arrested, he had the car keys in his pocket. He also had a handwritten letter in which he apologized for the killings. A jury convicted Herrera of capital murder, he was sentenced to death. After the verdict, Herrera pleaded guilty to killing Rucker.

“With any luck, we shall avoid ever having to face this embarrassing question again.”

Antonin Scalia

Nine years later, Herrera petitioned the Supreme Court to overturn both convictions. Because so many years had passed and because Herrera had been convicted in state court, he had to use a legal vehicle called habeas corpus, a centuries-old, last-ditch remedy that allows prisoners to argue that their imprisonment violates the federal Constitution. Because there is a strong presumption that the criminal justice system functioned correctly in the first instance, only a fraction of these claims succeed.

Herrera argued that he should be among the lucky few because newly discovered evidence proved his innocence. The evidence consisted of three sworn statements. One was written by a lawyer for Herrera’s dead brother, Raul, claiming that Raul confessed to him that he had killed Rucker and Carrisalez. The second, signed by a former cellmate of Raul’s, claimed the same thing. The third, signed by Raul’s son, claimed that he had witnessed his father shoot both officers.

By no stretch of the imagination could these biased affidavits—which conveniently blamed the murders on a dead man—prove Herrera’s innocence of the Carrisalez and Rucker murders, the latter of which he flat out admitted to committing. Herrera’s innocence claim, quite simply, was a farce. And yet it was this claim that the Supreme Court chose to review when deciding a profoundly important question: whether anyinmate with newly discovered evidence of innocence could argue that his conviction had been obtained in violation of the constitutional guarantees of due process and protection against cruel and unusual punishment.

Did Wisconsin Bar Counsel Overprosecute An Attorney?

Wednesday, March 11th, 2015

Tuesday, March 10, 2015

By Legal Profession Prof

 

A five-month suspension has been ordered by the Wisconsin Supreme Court for client-related misconduct in several matters.

One in particular may be of interest

On June 13, 2011, Attorney McClure sent an electronic response via a “legalmatch” website to M.K., J.K.’s mother, saying that Attorney McClure was a respected former prosecutor with 20 years of private practice criminal defense experience and that Attorney McClure could help J.K.  Attorney McClure told M.K. that he offered “a free consultation, convenient evening and weekend appointments and a simple up front flat fee.”  Attorney McClure went on to tell M.K., “The total fee that I would charge for this case is $2,500, pending more information from you.  The entire fee payment is due when I take your case.  Standard flat fee for domestic violence and felony child abuse charge.”

On June 16, 2011, M.K. hired Attorney McClure to represent her son and paid Attorney McClure a flat fee of $2,500, which Attorney McClure deposited directly into his business account.  There is no documentary evidence of a written fee agreement between Attorney McClure and M.K. and/or J.K.  J.K. obtained successor counsel, whose appearance was entered on September 8, 2011.

There were violations involving another client solicited through “legalmatch.”

After finding multiple violation, the referee made this unusual observation

But something is unusual.  Why are there so many separate Counts charged here?  It appears that Complainant decided to include in its Complaint every possible wrong it could find.  While that is its right, it still causes the Referee to wonder why this happened in a case where the attorney of over 33 years here in Wisconsin had never had any prior discipline and no client or medical provider lost any funds and OLR knew of the personal hardships which impacted that attorney during the period of misconduct.  OLR has not challenged Respondent’s assertion of him having many, many serious personal issues affecting him during the time period of the misconduct.  It appears to the referee from the case record that the reason for Complainant bringing so many Counts was/is to create, for the Sanction portion of the proceeding, an impression that a great wrong has occurred because of the number of findings of misconduct and, therefore, a major and significant penalty should be imposed.

The danger with that approach is that the prosecutor then is forever encouraged to overcharge in cases where there is clear wrong-doing on one or a few Counts in order to argue for and obtain the imposition of ever more severe sanctions.  Here the Respondent acknowledged his wrongdoing as can be seen by the stipulation that was received into the case record.  But when all is said and done the Respondent still is seen to have committed acts of misconduct in the areas of his Trust Account, his fee agreement/communication document and dishonesty.  Saying the foregoing is in no way an effort to diminish the misconduct that occurred.  But did Respondent’s conduct warrant a complaint with 21 separate Counts?  A schoolyard metaphor would be that piling on was occurring by youngsters during the recess.

. . . .

In this case it appears that the prosecutor has filed an unreasonable and excessive number of Counts, not because it could meet its burden, but in order to coerce and unfairly impact that portion of the proceedings that addresses sanctions.  The referee doesn’t know what should be the exact number of Counts in this case, but 21 would appear clearly excessive and intended to influence the sanctions that should be imposed.

Respondent is a very good, but not a perfect, man and attorney.  On balance in his 33-plus years as a lawyer he has labored hard and brought great credit to the legal profession.  . . .  That said, however, it is also clear that he has violated . . . the Supreme Court Rules that regulate all attorneys in this State.  The public must be protected from misconduct by an attorney that causes resources to be converted and diminishes respect for the rule of law.  While respondent’s misconduct was real and over a substantial period of time, it is mitigated by his very positive and exemplary 33 year career as a practicing lawyer, his actions taken to correct the consequences of his misconduct, and by the great number of personal struggles that confronted and motivated him as he lost his moral compass during the very period when the misconduct occurred.  . . .  As a 59 year old man with no prior lawyer misconduct, he is seeking an opportunity to be sanctioned fairly and appropriately.

The court

With respect to the appropriate level of discipline, upon careful review of the matter, we conclude that a five-month suspension is appropriate.  As the referee pointed out, Attorney McClure’s law practice now spans more than 34 years and he has no prior disciplinary history.  It is also significant to reiterate that no clients or medical providers lost any funds, and that Attorney McClure fully cooperated with the OLR and entered into a stipulation whereby he admitted virtually all the facts alleged in the complaint.  We also find it significant that the referee, who was in the best position to judge witness credibility, found Attorney McClure to be genuinely remorseful.  In addition, the OLR does not dispute the fact that Attorney McClure was faced with a multitude of personal problems during the time period at issue in this case.

(Mike Frisch)

 

How the US Supreme Court Has Treasonously Destroyed America’s Democratic Republic

Sunday, March 8th, 2015

 

By Joachim Hagopian

 

Global Research, March 08, 2015

This presentation will focus on how our Big Government in general and the US Supreme Court in particular have undermined and destroyed America’s onetime democratic republic. The judicial branch of the American government consisting of the federal district courts, the circuit courts of appeal and the Supreme Court in tandem with the prosecutorial legal arm of the executive branch the Justice Department represent the United States of America’s federal judicial system that’s supposed to operate above the fray of petty politics and polarized partisanship. All these federal judges appointed by the US president who presides over the executive branch are then formally approved of by the legislative branch US Congress. Unlike these two branches, federal judges enjoy permanent tenure with a fixed income for life to ostensibly reinforce the notion of bipartisan impartiality in constitutional interpretation of both legislative laws passed and executive orders and decisions made.

By design this checks and balances system compliments of our Founding Fathers has always been intended to act as a safeguard against the federal government’s potential tyranny and oppression. This article will show how during the first few years of the twenty-first century the Supreme Court has led the way in giving license to all three branches of government to be seriously compromised, corrupted and treasonously usurped by powerful self-interests that no longer represent, much less care about the well-being of the American people that they have sworn oaths to protect.

All three branches take a similar oath to the one below for both members of Congress. Keep in mind they all must swear to follow their oath throughout their tenure in office under penalty of law.

I do solemnly swear (or affirm) that I will support and defend the Constitution of the United  States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; that I take this obligation freely, without any mental reservation or purpose of evasion; and  that I will well and faithfully discharge the duties of the office on which I am about to enter:

So  help me God.

The specific federal law prohibiting violation of the above oath is worded as follows:

Federal law regulating oath of office by government officials is divided into four parts along with an executive order which further defines the law for purposes of enforcement. 5 U.S.C. 3331, provides the text of the actual oath of office members of Congress are required to take before assuming office. 5 U.S.C. 3333 requires members of Congress sign an affidavit that they have taken the oath of office required by 5 U.S.C. 3331 and have not or will not violate that oath of  office during their tenure of office as defined by the third part of the law, 5 U.S.C. 7311 which explicitly makes it a federal criminal offense (and a violation of oath of office) for anyone  employed in the United States Government (including members of Congress) to “advocate the  overthrow of our constitutional form of government”. The fourth federal law, 18 U.S.C. 1918 provides penalties for violation of oath office described in 5 U.S.C. 7311 which include: (1)  removal from office and; (2) confinement or a fine.

Agents operating in high levels at all three branches of our government have repeatedly engaged in treasonous acts as traitors in violation of Article 3 of the US Constitution, the same Constitution they all swore to preserve, defend, uphold, protect and honor. In the face of the growing tyranny and dismantling of our Constitution since 9/11, their proven disloyal actions have regularly violated their sworn allegiance to the nation, the Constitution and the American people. Since all members of the three branches of government must take an oath of allegiance that many then subsequently fail to comply with, clearly violating the aforementioned codified federal law, and since we do have the legal teeth, it’s high time to finally hold those who have been disloyal to our Constitution fully accountable.

Back in December 2000 the Supreme Court clearly usurped its own authority one month after the democratically elected Al Gore had won both the popular and electoral vote had all the votes per the Florida Supreme Court been allowed to rightfully continue to be counted. But in an unprecedented move that transgressed beyond its role and boundaries, for the first time in US history, the Supreme Court decided a presidential election by interfering where it had no legal authority to unilaterally halt that recount and prematurely proclaim the actual election loser George W. Bush the winner.

The subsequent untold damage done to the world by eight years of the diabolical Bush-Cheney regime that stole a second term in office with yet another fraudulent 2004 electionset into irreversible motion the Zionist neocon takeover responsible for the most heinous crimes of the ages – the inside 9/11 job, the lies promoting the immoral bloody wars in the Middle East and North Africa still raging out of control under Obama today. The sheer loss of life and utter horror willfully inflicted on so many nations and people none of whom ever posed a real threat to the United States is unforgiveable. That fateful, turn-of-the-century decision by the US Supreme Court to interfere in the 2000 election may just go down among the all-time most destructive and devastating court decisions in recorded human history.

The next major actions unveiling the court’s true partisan colors arose over the ongoing, perennially unsettled issue of illegal gerrymandering of congressional redistricting to unfairly gain House seats. Back in 2003 the then Republican House majority leader Tom Delay’s blatant machinations in Texas stacking GOP seats in Congress finally arrived at the Supreme Court for deliberation in 2006. But because the Supreme Court justices were deadlocked along partisan lines, ultimately they refused to intervene. Though both political parties are guilty of grappling to gain unfair advantage, the GOP’s gerrymandering power grab helped enable the Republican Party to capture of the Houses of Representatives. The highest court’s ineffectual response to this ongoing redrawing of political boundaries based on changing demographics within the states ensured that Republicans outnumbered Democrats in Congress. Whatever efforts the court has attempted in finally resolving this longstanding, hot button issue have invariably failed. Devising a fair and objective standard by which to remap congressional districts has proven ever elusive.

So the partisan battle wages on. The latest development surfaced this week when the Supreme Court heard arguments from both sides. The case involves Arizona’s commissionvoted by the state’s voters in 2000 to begin handling redistricting duties that stripped the GOP controlled state legislature from its power to divvy up districts. Not surprisingly, the majority of conservative/GOP judges in the Supreme Court all line up favoring the status quo’s literal interpretation that the Founding Fathers stipulated the responsibility lie with the state “legislature” while the liberal/Democrat justices prefer the more loosely applied definition to mean the “legislative process.” This would support the voters assigning the task to an appointed commission. Stakes are huge as the largest state California made a similar arrangement several years ago as did Washington and a few others as a viable alternative means of resolving this long contentious issue. So dozens of congressional districts around the nation could be overturned by the high court’s decision.

Though the big money handlers (Koch brothers, Sheldon Adelson, PAC’s) pour millions in strings attached donations to candidates from both parties in order to ensure that the elite’s undue influence and control over whomever gets elected is secured either way, they generally favor the Republican Party. Thus the GOP ascension to power in both houses of Congress has rendered the legislative branch in this century as the most ineffective, inept and morally corrosive in all of American history. Last year a poll found that an overwhelming majority of Americans believe that Congress members are controlled by special interest groups. With the unending quagmire that paralyzes Washington, undoubtedly that percentage of public contempt and alienation will only continue to rise over time.

By design this divide and conquer strategy permeates at all levels in America (and the world) both historically and currently, and in our federal government it produces a co-opted excuse absolving all responsibility for continued failure simply by blaming the other side of the aisle. In this way the forever game of partisan politics is maintained whereby the Democrats get to always blame the Republicans, the Republicans the Democrats, and the Democrat president always blames the now Republican controlled House and Senate. As a result, the government always operates contentiously gridlocked and mired at a chaotic standstill – its inability to work effectively together as its convenient excuse to not do its proper job in protecting and promoting the interests of the American people. This then provides the necessary perfect public cover to continue in dysfunctional, abysmal failure, of course all at citizens’ expense.

See how these momentous, monumentally significant, game-changing actions from the nation’s highest court have directly impacted and caused such grave damage degenerating our republic into an oligarchy? Again by design, relentlessly pointing the finger at each other deceptively obscures the real truth of the bigger picture from ever getting noticed or recognized. Through the feds’ and their MSM’s nonstop propaganda and lies, as long as the US populace can continue to be fooled and controlled, in its complacency it will only continue to tolerate its government’s failures and accepted inadequacies, never demanding more as a disempowered, seemingly impotent, disenfranchised citizenry. The backbiting bickering between two thoroughly corrupted, co-opted political parties in the US is mere side show distraction designed to conceal the sleight of hand thievery of the banking cabal pulling all the side show puppet strings. As the late great truth-telling George Carlin used to say, the elite “doesn’t give a shit about you or me.” It’s an abomination of criminal deceit that’s bamboozled dumbed down Americans kept in the dark for far too long.

And to this day they still don’t get it. A Reuters-Ipsos poll reported this week that only 24% of Americans believe that Congress should more closely oversee the Federal Reserve private banking cabal that’s been drowning us in debt for over a century. More than twice that amount believe “the Fed should be left alone.” These must be the same sheeple who loudly complain about how horrible Congress is, yet last November turn around and re-elect 91% of the incumbents despite only a 10% approval rating. The lies are so often repeated that the voting public gets invariably conned into voting against its own self-interest again and again.

Still another Supreme Court decision that put the final dagger into the heart of our dying democratic republic was 2010’s Citizens United case followed up by last year’s McCutcheon case that opened up the purse-string floodgates giving carte blanche power for oligarchs to buy off elected politicians with absolutely no oversight or accountability. With no dollar limits making bribery perfectly legal and completely private and untraceable by high court endorsement, by no accident a joint university study last year made it official – America is no longer a republic but an oligarchy where the power interests of the few dictate and control how our federal government votes and makes laws. Rather than pay any attention to its blatant conflict of interest in violating every democratic principle, the Supreme Court has also made it official – our government is up for sale to the highest bidder. Those who simply spend the most money now own our elected representatives who are totally beholding to the hand that feeds them rather than to their constituents that send them to Washington. Of course the direct consequence of these totally undemocratic court decisions placing exclusive monetary value on funding means that Congress members will only devote more time, energy and effort to raising money to get re-elected than doing their job on Capitol Hill. The 2012 presidential election at both national and state levels cost a total of $60 billion, the most ever. With each of these dramatically impactful court rulings, the onetime democratic republic of America fades ever further into distant memory as the disconnect between the Americans and their oligarchic form of government widens exponentially.

Finally last April’s Supreme Court decision to not intervene in a Court of Appeals ruling that overturned the district court that had declared the 2012 National Defense Authorization Act (NDAA) unconstitutional sealed the nail in the coffin on whatever civil liberties we Americans still had left. Though courageous citizens like journalist Chris Hedges had filed a lawsuit on our behalf challenging NDAA’s legality and one very bold federal district court judge decided in Hedges et al’s favor, by the Supreme Court’s choice to uphold the Appeals Court decision overruling the lower court to keep the NDAA law on the books, life as we legally knew it in the United States ceased to exist. In effect, both the Appellate and Supreme Courts violated American citizens’ Fourth and Sixth Amendments as well as overturned the Posse Comitatis law that existed since after the Civil War. Comitatis was the legal protection that prohibited the US military from intervening in civil affairs that were historically under the jurisdiction of law enforcement agencies and each state’s National Guard. Currently under the 2012 NDAA law, the military can come into our homes without a warrant and arrest us without charges, detain us for an unlimited, indefinite period of time without access to either legal representation or due process and without even a trial.

Constitutional attorney John W. Whitehead comments:

No matter what the Obama administration may say to the contrary, actions speak louder than words, and history shows that the U.S. government is not averse to locking up its own citizens for  its own purposes. What the NDAA does is open the door for the government to detain as a threat to national security anyone viewed as a troublemaker. According to government guidelines for identifying domestic extremists—a word used interchangeably with terrorists, that technically applies to anyone exercising their First Amendment rights in order to criticize the government.

The highest court’s gross and inhumane failure to protect our civil liberties and our constitutional right to due process has given way to the CIA-like “black sites” currently operating in secret locations throughout America where US citizens are being rounded up, brought to detention centers, shackled and tortured without being booked or charged with any crime. In effect, we are all now potential targeted victims of the US police state under the most brutal totalitarian rule. These egregious actions of the US Supreme Court have desecrated and destroyed our rule of law that for more than two centuries used to be the United States Constitution. What we now have are criminals operating within our highest court who are nothing more than traitors who need to be held accountable.

We also have a standing president who has assumed dictatorial powers through countless executive orders that bypass both congressional approval and our civil rights. Though he campaigned on a promise of transparency and openness, he has betrayed the American people who elected him by becoming the most secretive president in US history. His administration has turned down more Freedom of Information requests than any prior using the pathetic mantra of “national security” as his always lame excuse. He has charged far more whistleblowers with the archaic espionage act than all other previous presidents combined. He has been the most aggressive amongst all past presidents in pursuing and harassing journalists, both executing and threatening arrests for their seeking to tell the truth while exercising their constitutional protection to not violate confidentiality of their sources. This blatant, over-the-top violation of civil liberties of both whistleblowers and journalists again shows Obama’s true colors that he is at war with free speech and the free press obviously no longer guaranteed by our First Amendment.

Essentially since 9/11 all three branches have been taken over and hijacked by malevolent and sinister forces that no longer serve the interests of the American people but a handful of oligarch puppet masters that is the long time controlling elite. Their intent is in fact to destroy America and to a great extent the entire world as the final step toward fulfilling their globalist agenda of a one world government. For numerous centuries the international globalists have utilized their central banking cabal to own and operate a morally corrupt and thoroughly broken, unsustainable Ponzi scheme of an economic system designed to historically steal and plunder the earth’s natural resources and enslave through insurmountable debt and feudal servitude the global masses. The brutal and ruthless tyranny of the New World Order has effectively seized control over the entire planet’s population. Under the auspices of the American Empire doing its brutal bidding along with its subservient appendage of the NATO-European Union, a pro-Zionist elite spearheaded by the likes of Israel’s Bibi Netanyahu has subversively driven humanity to the brink of global self-annihilation. Through geopolitical polarization into two militarized opposing armed camps, the West is diabolically baiting and pushing the East (Russia, China, India and Iran) into global conflict amounting to World War III.

The hard kill tactics of global war and violence in conjunction with the soft kill method of environmental degradation (i.e., pollution of air, water, soil and food production through cumulative Monsanto GMO/chemical and chemtrail toxicity and ever-rising levels of radiation) makes our living earth habitat unsustainable that is increasingly producing widespread lethality amongst all life forms. The oligarchs’ eugenic plan of reducing the world population from 7.2 billion to a half to one billion is in current process of being successfully attained. Within a few years a very strong likelihood exists that roughly 13 out of 14 of us currently living and breathing on this planet will be dead or all life forms on planet earth will have perished.

With these longshot odds on survival becoming increasingly apparent, we humans as mindful citizens of the world have nothing left to lose at this near endgame point but to fight and take back our only home from those bent on fast destroying it. As outlined here, clear violations of the US Constitution have been egregiously been committed by members of all three branches of the federal government and under the penalty code of those laws, they sorely need to be enforced. Indeed it is both the citizens’ right and obligation to do so. We have no other rational or moral choice but to mobilize and actively oppose the destructive forces currently in demonic control over the earth’s dominion.

Joachim Hagopian is a West Point graduate and former US Army officer. He has written a manuscript based on his unique military experience entitled “Don’t Let The Bastards Getcha Down.” It examines and focuses on US international relations, leadership and national security issues. After the military, Joachim earned a master’s degree in Clinical Psychology and worked as a licensed therapist in the mental health field for more than a quarter century. He now concentrates on his writing and has a blog site at http://empireexposed. blogspot. com/.

 

jury instruction in a medical negligence claim based on an alleged lack of informed consent should be a general professional duty instruction

Saturday, March 7th, 2015

By David Kramer dkramer@dbllaw.com

In a recent 2-1 decision (see it here) by Chief Judge Glenn Acree, the Kentucky Court of Appeals held in Horsley v. Smith that the jury instruction in a medical negligence claim based on an alleged lack of informed consent should be a general professional duty instruction and not a separate instruction outlining specific legal duties relating to informed consent. The opinion also analyzed at length the language and legislative history of the Kentucky informed consent statute, KRS 304.40-320, and held that it did not affirmatively impose a duty on a physician, but rather created a “safe harbor,” compliance with which should absolve the physician from liability for an alleged lack of informed consent.

Interestingly, the jury in Horsley was instructed by the trial court that the defendant physician had initially lied at his deposition about not having sent an anonymous pre-suit mailing to the plaintiff recounting instances where physicians countersued lawyers for filing unsuccessful malpractice claims. The doctor later came clean and was sanctioned and fined by the trial court. He still won at trial.

Even more interesting is the fact that the Horsley decision openly disagrees with a 2012 Court of Appeals decision (Oghia v. Hollan) that was authored by current Justice Michelle Keller when she was on the Court of Appeals. Horsley also states (correctly) in a footnote that a 1992 informed consent opinion of the Kentucky Supreme Court “errantly” described the nature of the informed consent duty as being based on a community versus a national standard.

The opinion was designated for publication in the South Western Reporter but is not yet final as there is currently pending a petition for rehearing. Once that petition is ruled on, the losing party has a right to seek discretionary review by the Kentucky Supreme Court.

David Kramer is a Partner in the law firm of Dressman Benzinger LaVelle, with offices in Cincinnati, Ohio, Crestview Hills, Kentucky, and Louisville, Kentucky

Does Campaign Money Corrupt Judges

Friday, March 6th, 2015

Charles A. Kelbley, The Legal Intelligencer

March 6, 2015    | 0 Comments

Back in 2009, Lanell Williams-Yulee, a Tampa, Florida, attorney, made a decision to run for the office of county court judge. She began her campaign by sending a mass mailing to potential supporters, asking for contributions ranging from $25 to $500. Her appeal did not attract any response, but it did engender a complaint from the Florida bar, which charged her with violating a rule of judicial ethics by personally soliciting donations from potential supporters. But Williams-Yulee claimed that the Florida bar’s rule violated the First Amendment by wrongfully restricting her speech.

The Florida Supreme Court rejected her First Amendment claim, reprimanded her for not adhering to the ethics rule, and ordered her to pay court costs of nearly $1,900.

Williams-Yulee’s case is now before the U.S. Supreme Court, and the question it will decide is whether a rule of judicial conduct that prohibits candidates for judicial office from personally soliciting campaign funds violates the First Amendment.

The answer will favor Williams-Yulee if she can show that the Florida bar’s ban on personal solicitations violates her First Amendment’s free speech rights. That may depend, however, on whether judges are deemed to be different, in some important respects, from other public officials, such that judges’ speech must be limited.

Politicians, legislators and others who are running for political offices are in general free to personally solicit donations for their campaigns. Indeed, the Supreme Court has in recent years protected campaign financing in decisions such as Citizens United v. Federal Elections Commission, No. 08-205, 558 U.S. 310 (2010), and McCutcheon v. Federal Election Commission, 133 S.Ct. 1242 (2013). Those cases opened the floodgates that allowed virtually limitless amounts of money to flow, in one way or another, to political campaigns under the aegis of political speech. Giving money, we have learned, is considered speech and protected under the umbrella of the First Amendment.

Some commentators think that the campaign contributions members of Congress and other politicians seek and receive from Washington lobbyists and other special interest groups are not, on the whole, without serious ethical problems. Members of Congress are known to spend much of their time seeking financial support for their re-election bids. The case against it has been made in at least two important books, the first by Harvard Law School professor Lawrence Lessig in “Republic, Lost: How Money Corrupts Congress—and a Plan to Stop It,” where Lessig uses the term “dependency corruption” to describe the effect of a constant search for money on the integrity of our political processes; and the second, by constitutional scholar Zephyr Teachout, in “Corruption in America: From Benjamin Franklin’s Snuff Box to Citizens United,” a book that traces American policies on the ethical effects of gifts to government officials since the founding era.

As noted earlier, however, judges may be different from legislators and other politicians. Perhaps now we can see why they must be different in order to avoid as much as possible the temptations toward corruption. The people elect the members of the executive and legislative branches of government. Thirty-nine of our 50 states likewise hold elections for some or all of their judges. But here’s the difference: legislators and members of the executive branch, from the president on down, serve the people and constitute the “political” branches of the government. They look to the people to elect them and retain them in office, based upon public approval and satisfaction with their performance.

But the judicial branch is supposed to be “above the fray.” Judges do not serve the people, at least not directly or primarily; they serve the law, which is their primary duty; upholding the Constitution and the law is their essential calling. In this way they serve the interest of litigants and the public only indirectly and secondarily. So there are good reasons why judges are not “in the fray” and lack agency within the political branches: judges must be independent, impartial and fair, and not beholden to donors whose influence might compromise and corrupt their judicial virtues.

Many Americans are likely to agree that they should have the right to elect the judges in their states. But many other Americans, including many judges, are not happy with the election of judges; they favor a process of “merit selection,” which they claim will result in the appointment of highly qualified judges who are not beholden to voters’ views or preferences. It is notable that on this subject, retired U.S. Supreme Court Justice Sandra Day O’Connor is a vocal critic of electing judges.

Here in Pennsylvania, retired Superior Court Judge Edmund B. Spaeth Jr.—often thought of as one of Pennsylvania’s most respected and distinguished judges—has long opposed the election of judges. When his term as president judge of the state Superior Court was about to end, he decided not to seek re-election in order to avoid asking donors for money and conducting a campaign, which, from prior experience, he had found “mostly meaningless” for a judicial candidate. For him, the decision was a matter of principle.

The reasons a judge might refuse to ask for or accept campaign contributions are multiple. As U.S. Supreme Court Justice Ruth Bader Ginsburg said during oral argument in this case, judges should be “above the fray,” and Justice Antonin Scalia’s remarks were similar, to the effect that “there are things we just don’t let judges do, like publish op-eds in newspapers to respond to criticism of the court’s decisions. Both Ginsburg’s and Scalia’s remarks were referring to the “dignity of the office” of a judge. And Spaeth’s decision might also be construed in that way.

Florida’s ethics rule, however, has an interesting twist. Although personal appeals for donations are forbidden, campaign committees are permitted to handle donations on the candidate’s behalf and inform judges about donors’ identities, which permits judges to acknowledge those donations. This would appear to contradict the purpose of the ban on personal solicitations, which is to avoid a direct link between judges and donors.

This direct link is the harbinger of some ethical strains: once donors are known, judges may learn more about their interests and motives, their corporate, business and professional values, and much more. The danger then is that the judges will become more like the members of the political branches of the government, serving the interests of the donors and turn away, however slightly, from serving the law.

As noted above, 39 states elect some of their judges. Thirty of those states have rules in their ethical codes that forbid judicial candidates to make personal requests for donations. Thus, a majority of the states have banned such requests. But if their state codes have a rule like Florida’s, banning personal requests but allowing a judge to know who has donated, and allowed also to send those donors thank you notes, they will not be helping their judges to adhere to a strong ethical norm. They may, on the contrary, be inviting the very habits they wish to ban from the practices of judges and judicial candidates.

It is notable that there is significant disagreement among the federal courts on the ban of candidates soliciting funds for their campaigns. At least three state supreme courts and two federal appeals courts uphold the ban, whereas four federal appeals courts have struck down the ban. In Florida itself, there is a conflict between the state’s Supreme Court, which upholds the ban, and the U.S. Court of Appeals for the 11th Circuit, which includes Florida.

Finally, a 2013 survey, commissioned by the Brennan Center for Justice at New York University School of Law, shows that a vast majority of American voters fear that campaign donations skew judges’ decisions. That means that judges who have received donations, especially those they solicited, have the appearance of impropriety for the general public. What we need, arguably, is a rule far stricter than the Florida rule. We should have a rule that completely isolates judges and candidates from donors and money. Without that, the judiciary moves closer to the political branches’ characteristic embrace of donors and their donations, which are fraught with ethical danger..

Charles A. Kelbley is a Philadelphia lawyer. Previously, he was a professor of constitutional law at Fordham University School of Law and a visiting professor of law and social policy at Bryn Mawr College. He is working on a book on the amendments to the U.S. Constitution. His email is ckelbley@gmail.com.

Judge David Allen Barberk of Prestonsburg named to a vacant seat on the Supreme Court

Thursday, March 5th, 2015

Gov. Steve Beshear on Wednesday appointed former state Court of Appeals Judge David Allen Barber to a vacant seat on the Supreme Court, according to a news release.

Barber replaces former Justice Will T. Scott, who resigned to seek the Republican nomination for governor in the May primary.

Barber, of Prestonsburg, is an advisor in the legislative office of House Speaker Greg Stumbo, D-Prestonsburg

Barber served on the Court of Appeals from 2000 to 2007.

Beshear’s office said Barber serve until the results of an election to fill the seat in November are certified.

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