Legal Abuse Syndrome (LAS)
Bob
Chapter 5: Devil's Playground (in progress)
Created by Bob Sherin Thu 3/2/2006 at 7:32 PM
Revised today at 1:45 AM
--------------------------------------------------------------------------------
Copyright 2006 by Bob Sherin. All Rights Reserved.
"Protracted Litigation can be hazardous to your health." If Karin
Huffer had her way, this would appear over every courthouse entrance.
In a fact little noted by judicial practitioners, Huffer makes a case
that the consequences of litigation are wreaking havoc on a society
that takes years to recover. She maintains that while we're trying to
solve one problem, the appropriate relationship of our legal rights and
duties, we're creating a Frankenstein monster.
As Marital and Family Therapist, she has lived stories of heartbreak
hearsay, through her clients, that are so central to life as to be
intermeshed with its main flow. Huffer, who equates pursuit of justice
to a "shotgun wedding" with the judiciary, points out that closure
goes well beyond judgment. Lawyers talk legal determination while
Huffer scans the emotional turmoil germanating from a slow system that
is not only unresponsive to feelings but frequently sends them into an
irrevocable tail spin.
Author of "Legal Abuse Syndrome (LAS)," she includes gripping
accounts, together with treatments she's innovated, to replace
cynicism with trust, anger with coping, and hostility with healthy
reformation of thought. First comes the trespass, either by violence or
deceit, giving rise to a legal case. Then comes LAS, when the system
designed to resolve the dispute dashes any notion of self reliance,
confidence and well being. This is when third parties with varying
interests take over destiny. Just when a victim needs to marshal
wisdom, he is obstructed, such that his mental and physical health
become hostage to ongoing "due process."
Huffer's "Story of James" is the most illustrative. Having worked
long hours, seven days a week, James had challenged himself in real
estate to increasingly higher levels - until reaching the ultimate
project. He planned to crown his life's work with developing three
business properties he had paid off, managing them, and eventually
selling them off to educate his children and retire comfortably.
When he started on his first project, his net worth was three million
dollars, and he had impeccable credit, business clout and community
respect. His first project consisted of small buildings, as opposed to
a large one, with variations in roof line to draw attention. To
generate immediate revenue, he planned a sports bar and restaurant as
centerpiece. Versed in aesthetic design, James had planned out the rest
in response to community needs that he had thoroughly researched.
What could be better than an honest entrepreneur, putting his money
where his heart lay and filling community needs?
Backing his project with personal guarantee, James assured that those
dealing with him would receive payment, risk free. Consummate in
business, he obtained expert legal advice, architectural plans and a
loan with a stipulation from a federally regulated bank. James agreed
to obtain the bank's approval for the chosen contractor. Excitement
was his watchword as he awoke each day early and hit the ground running
on his pet project. So far, so good.
James chose a contractor acceptable to the bank, but once the project
was underway he ran into head winds. The company, acting in bad faith,
refused to follow building code, behaved as if the bank, not James, was
in control, and embezzled $400,000 by defaulting on its debtor
obligations. Ever the responsible business partner, James was not
deterred, making formal, respectful demand that the bank cooperate in
replacing the contractor. Reasonable request?
Turns out, the bank outdid its refusal to replace the contractor. It
met privately with the contractor and issued the company a $100,000
check out of James' loan. Again, though, he was up to the task,
wasting no time adding a second contractor. He intended to complete the
suites so he could replace the construction loan with a permanent loan,
thereby jettisoning the bank. Suites complete, he got his first tenant,
a medically-oriented, health spa. Ever the entrepreneur, James had
tackled this chapter and overcome it, or so he thought.
But now the bank refused to approve his tenant, as interest payments
became due at $17,000 per month. Again and again, as we often ask in
the legal arena, whose side was the Bank on?
James crossed the threshold into the justice system, retaining an
attorney who recommended filing for Chapter 11 reorganization.
Optimistically, James envisioned that bringing his predicament before
the court would remedy this snag by exposing the bank's bad faith in
refusing to approve the tenant.
With spa in place, he could show the Court that transfer from
construction lender to permanent lender could be effected that would
pay off the $1,450,000 owed. So he followed his lawyer's advice,
filing his reorganization plan, which included selling off one piece of
property as buffer to satisfy any of the Court's demands. James had
business acumen but here he needed familiarity with jungle rules.
The Court simply refused his request, unencumbered with the
concentration necessary to read his well thought out reorganization
plan. Then the bank foreclosed, dividing the building and other assets.
It kept half and gave the contractor half.
Positioned to overcome obstacles, James resorted to plan B. He sued
both bank and contractor, and he had the ammunition to win. But a
strange thing happened on the way to the bank. A witness who had come
forward after overhearing a conversation in which the contractor and
bank were conspiring to steal James' assets, met an unfortunate end.
He was murdered days before trial.
On one leg, James' proceeded to jury trial against the contractor
alone. The witness' demise had foreclosed entry of evidence about the
alleged conspiracy, but that was only the beginning. Before trial,
contractor's Counsel moved on the holy grail of evidence, relevancy
vitiated by prejudice.
By the time the case went to trial, it didn't resemble the reality.
The jury could not be told that the contractor now owned the building
and sports bar. The jurors could not know that the very same sports bar
that the bank had rejected in James' hands was approved in the
contractor's. They could not be made privy to the fact, the
contractor's license had been revoked on account of building an
unsafe structure without proper permits and inspections.
As so often happens in our adversarial form of justice, James was
slandered, abused, criticized, and harassed by defense attorneys.
Virtually every acquaintance, even the Methodist Minister who had
married him, was deposed. Within 60 days his hair turned from dark
brown to completely gray. His blood pressure shot up to a point where
he needed medication - and still does.
Records subpoenaed from the bank proved its motive was to force him out
of business, as it was revealed that the bank's corporate officers
owned a competitive spa slated for construction less than one thousand
feet away. Here was the evidence supporting charges of fraud, forgery,
perjury and theft.
The judge, though, refused to rule, saying informally: "I have
problems with that judgment." On a whim from the bench, James'
recourse to appeal was dashed, because appellate courts limit their
consideration to lower court decisions.
James had lost everything. A decade in court, on top of twenty
successful years building his estate, had decimated him. When he first
filed for Chapter 11, he had $5,000,000 in assets and $2,000,000 in
liabilities. The system had drained his assets dry, as his properties
were sold at bargain prices to the contractor and "friends" of the
bank.
Enter LAS (Legal Abuse Syndrome), a now-accepted term coined by Huffer,
for, by this time, James was moved from hope and confidence to anger,
rage, outrage, then beyond outrage. In a study that ought to be
required reading for prospective lawyers, Huffer covers justice
system's psychological pitfalls in an innovative and enlightening way.
James lost his fine sense of humor, and nights were spent before the
television nursing drinks. His mood grew defensive and ugly, his view
of life, cynical. His Wife describes him as akin to someone struck on
the head by a wrecking ball. This was James' point of implosion, Huffer
writes.
Describing the LAS Epidemic, she opens with a Dr. Martin Luther King
quote: "Injustice anywhere is a threat to justice everywhere,"
meaning in this context that injustice anywhere is a threat to mental
health everywhere -- a unique perception. As a Counselor, Huffer's
view is all about the mental well being of macrocosmic humanity,
whereas Counselors at Law must necessarily be all microcosmic case.
Writes Huffer: "LAS victims, bound in cellophane, speak from a
fractured consciousness. Helplessness and hopelessness replace outrage
driven to the extreme. The majority of people, who contribute to their
communities and abide by the law, assume that decent behavior buys them
certain credibility as a good citizen. James found himself slandered
and portrayed as a bum and a thief. The shattering of these beliefs
sends victims emotionally reeling. These are the macrocosmic germs of a
national health crisis."
A national health crisis. First time we've heard this linked as effect
to a cause of judicial institutions. While the prior four chapters have
covered the sad costs of litigation in legal terms, nowhere has the
topic been suggested as a "national health crisis." And yet, think
about it: a national health crisis is exactly what it is.
I met Karin Huffer recently in Pompano Beach at a meeting of several
folks described in Chapter 3 who want to set the system straight. Most
have actively joined forces in an action plan that will be reported on
these pages, with this book to be released in summer, 2006, in time to
enlighten the electorate. But before meeting Huffer, this writer knew
nothing of LAS.
Huffer ties its backbone to Post Traumatic Stress Disorder (PTSD).
Uncontrollable stress causes PTSD. The more intense and longer stress
last, the more likely PTSD is to develop. Not everyone gets PTSD yet
those impacted less reflect lessoning subsets, such as sour memories.
The very nature of litigation requires years of a victim's lifetime,
as trauma is reintroduced, remaining alive during the entire process
and thereafter. Huffer says that this is a period when physical changes
can occur, as well as changes to brain chemistry.
The innovator of LAS identifies the following symptoms: Trust vanishes,
sleep disturbances or changes in sleep posture occur, obsessions about
security, money, privacy, and contracts are common, passion disappears,
disturbance of sex life appears, intimate relationships are defiled
that can complicate family support when needed most, ability to laugh
and cry vanishes.
Like a mental breakdown, some - or all - of the symptems are familiar
to anyone who has been through the system, especially when Lady Justice
fails to deliver on its promise.
Dane
"Bob" <She...@bellsouth.net> wrote in message
news:1141369882.1...@j33g2000cwa.googlegroups.com...
> e-book at www.thefloridabar.us "Not Sponsored by The Florida Bar"
>
> Chapter 5: Devil's Playground (in progress)
> Created by Bob Sherin Thu 3/2/2006 at 7:32 PM
> Revised today at 1:45 AM
>
> --------------------------------------------------------------------------
------
>
> Copyright 2006 by Bob Sherin. All Rights Reserved.
>
> "Protracted Litigation can be hazardous to your health."
Nothing about our legal system is so outrageous as to be shocking to me,
anymore.
http://www.wealth4freedom.com/law/woe_unto_lawyers.htm
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Dane
" Thus far, neither the Bar nor the courts have shown they can regulate the
Bar, an out-of-control agency ... ."
Would you agree that since all three branches of our government are
essentially controlled by lawyers, then it stands to reason that whoever
might control the Bar could essentially run the country?
_______Start Quote______
Who Is Running America?
Under the doctrine of Parens Patriae, "Government As Parent", as a result of
the manipulated bankruptcy of the United States of America in 1930, ALL the
assets of the American people, their person, and of our Country itself are
held by the "Depository Trust Corporation" at 55 Water Street, NY, NY,
secured by UCC Commercial Liens, which are then monetized as "debt money" by
the Federal Reserve. It may interest you to know that under the umbrella of
the "Depository Trust Corporation" lies the CEDE Corporation, the Federal
Reserve Corporation and the American Bar Association, the legal arm of the
banking interests.
[...]
The Independent Treasury Act of 1921 suspended the de jure (meaning "by
right of legal establishment") Treasury Department of the United States
government. Our Congress turned the treasury department over to a private
corporation, the Federal Reserve and their agents. The bulk of the
ownership of the Federal Reserve System, a very well kept secret from the
American Citizen, is held by these banking interests:
Rothschild Bank of London
Rothschild Bank of Berlin
Warburg Bank of Hamburg
Warburg Bank of Amsterdam
Lazard Brothers of Paris
Israel Moses Seif Banks of Italy
Chase Manhattan Bank of New York
Goldman, Sachs of New York
Lehman Brothers of New York
Kuhn Loeb Bank of New York
[...]
The Conference of Chief Justices, Conference of State Court
Administrators, the National Associations of Attorney Generals, Secretaries
of State and State Auditors, State Purchasing Offices, Lieutenant Governors,
and State Legislators, and the Governors of the 50 states comprise the
membership of the Council of State Governments. The Council of State
Governments is located at 676 N. ST. Clair, Chicago, Illinois 60611.
The Council of State Governments has now been absorbed into the National
Conference on Uniform State Laws run by the Bar Association.
The movement for uniform state laws dates back more than a century. The
Alabama State Bar called for uniformity as early as 1881, but it was nearly
a decade later, at the 12th annual meeting of the ABA in 1889, that the
legal community made its formal motion to work for uniformity in the then 44
state union. New York was the first state to move, appointing three
commissioners in 1890. Other states soon heeded the call: Delaware,
Georgia, Massachusetts, Michigan, New York, New Jersey, and Pennsylvania
attended the first Conference in Saratoga Springs, New York, in 1892. The
commissioners wasted no time. They urged adoption of three acts and
proposed raising the marrying age to 18 for males and 16 for females. They
also adopted a table of weights and measures, noting that with the exception
of wheat, legal weights of a bushel varied in all the states.
[...]
100 YEARS OF UNIFORM LAWS
An Abridged Chronology
[...]
On April 25, 1938, the Supreme Court overturned the standing precedents of
the prior 150 years concerning "COMMON LAW" in the federal government.
"THERE IS NO FEDERAL COMMON LAW, AND CONGRESS HAS NO POWER TO DECLARE
SUBSTANTIVE RULES OF COMMON LAW applicable IN A STATE, WHETHER they be LOCAL
or GENERAL in their nature, be they COMMERCIAL LAW or a part of LAW OF
TORTS." (See: ERIE RAILROAD CO. vs. THOMPKINS, 304 U.S. 64, 82 L. Ed. 1188)
The Common Law is the fountain source of Substantive and Remedial
Rights, if not our very Liberties. The members and associates of the Bar
thereafter formed committees, granted themselves special privileges,
immunities and franchises, and held meetings concerning the Judicial
procedures, and further, to amend laws "to conform to a trend of judicial
decisions or to accomplish similar objectives," including hodgepodging the
jurisdictions of Law and Equity together, which is known today as "One Form
of Action." [See: Constitution and By Laws, Article 3, Section 3.3(c),
1990-91 Reference Book, see also Colorado Methods of Practice, West
Publishing, Vol. 4, pages 2-3, Authors Comments.]
100 YEARS OF UNIFORM LAWS
An Abridged Chronology [continued...]
[...]
HE INTERNATIONAL BANKERS'
CORPORATE PLANTATION
U.S.A. STYLE
Before 1938, the law was not a public policy law. All these old cases were
not public law deciding cases. Today, the cases are all decided under
corporate public policy. The public policy exists in order to administer
the bankruptcy for the benefit of the banker creditors and to protect the
banker creditor.
Corporate public policy can allow the creditor to say to the corporate
legislatures, "I want a law passed requiring my debtors to wear seat belts.
Why? Because I want to be able to milk my debtors for the longest period
possible."
It doesn't behoove the creditor to allow all of his labor producing debtors
die at an average age 30 years. What would happen to the bankers' lending,
interest, penalties, increase, repayment etc., on the entire funding and
lending process if the average American life span was only 30 years? Why,
the bankers would have to have 2½ times the current consumer population to
equal their current take. The bankers would need (instead of 250 million
Americans) 600 million or even more. Maybe the bankers would need 2 Billion
Americans because the individual can't contract for debt until he/she is 18
or 21 years of age. Therefore, if the average life span is only a 30 year
period, the creditor could collect on the debt for only 12 years.
Now, if the bankers can just get people to live an average of 70 years, you
are talking a whopping 50 years of indebtedness for which they contract and
for which they are forced to pay back with usury/interest. With this
situation, the banker creditor can now float loans worth 50 years of
potential indebtedness and its payoff with interest in the name of the
people, as opposed to 9 to 12 years.
[...]
______________End Quote___________
Well, you'll just have to read it for yourself to make any kind of
determination as to validity:
http://www.usa-the-republic.com/emergency%20powers/Who%20Is%20Running%20Amer
ica.html
http://usa-the-republic.com/jurisprudentia/bar%20card.htm
http://www.wealth4freedom.com/law/BAR.shtml
If you are interested, here's more:]
http://www.wealth4freedom.com/truth/links2educate.htm
NOTE: I recall from memory a printed publication from Texas that was also
available (free) online at antishyster.com (now defunct.)
In particular I recall an article concerning a RICO Action against the
Florida Bar Ass[holes]. This would have been in the late 1990's. Maybe you
could find it and benifet in some way by that information....
Keep up the good fight!
Dane
Dane
>
> NOTE: I recall from memory a printed publication from Texas that was also
> available (free) online at antishyster.com (now defunct.)
>
> In particular I recall an article concerning a RICO Action against the
> Florida Bar Ass[holes]. This would have been in the late 1990's. Maybe you
> could find it and benifet in some way by that information....
>
> Keep up the good fight!
>
> Dane
>
>
I found it for you.
As I am reading Chap. 4 of your e-book at the moment, I think you might be
very interested.
52 Call Us Before You Hire a Florida Lawyer by Ron Eubanks. When the Florida
Bar decided to prosecute paralegal Ron Eubanks, they didn't expect him to
publicly expose the Bar's insurance scheme.
http://www.wealth4freedom.com/news/LL-TF.htm
Get the article from this pdf:
http://www.adask.net/PDF/71pdf/71web1ads101.pdf
Dane
http://www.attorneybusters.com/our_home_page.htm
Taylor
That story made no sense whatsoever from a legal standpoint and is probably
made up.
Bob
like The Florida Bar, which issues edicts without ability to field
responses. Please, good friends, email me by entering my name
BobSherin before the domain thefloridabar.us in email format, and I'll
get your communicatons.
Your responses are indispensable to the book in progress.
I haven't yet researched the cites from pioneer Eubanks, although I've
read a great deal of his work and have spoken by phone to him at his
place of business, Able Legal Forms. I think, if he knew a group of
dedicated activists is following up on his work, he'd be thrilled.
As you know Chapter 4 is all about the anti-trust practices of The
Florida Bar with Florida Lawyers Mutual Insurance Company. But I'm
sure now that I'll be studying this train of posts, lots more will
emerge. If any of you have any material, pro or con, I want it in my
book.
Though appearing as a hatchet job, I really want balance, truth -- but
how can you have it when the folks you're writing about think so little
of the public as to disregard criticism.
Again the e-Book in progress is at www.thefloridabar.us
Bob Sherin, Non-lawyer
Miami, Florida
Taylor
Our legal system is derived from 500 years of legal reasoning from the best
minds of our civilization. I viewed your website, and it is an incoherent
rambling with no apparent logic. I have seen many clients with the same
hate and fear because they don't understand the process and the power over
their lives is in another person's hands. I did not see any proposed
solutions in your website which shows me that you are not interested in
improving the system, only railing against it.
Dane
"Taylor" <1...@456.com> wrote in message
news:OvFOf.5238$gm....@tornado.texas.rr.com...
Here's a proposed solution:
http://www.newswithviews.com/Usher/david12.htm
Ken Smith
> Our legal system is derived from 500 years of legal reasoning from the best
> minds of our civilization.
Remember that a legal system is only about as good as the character
of those who administer it. Article 125 of the former Soviet Union’s
1936 Constitution guaranteed Soviet citizens the freedom of speech and
of the press. But the Stalinist law courts never enforced those rights,
and if you dared to speak freely on public issues of the day, thereby
angering your betters in the government, you could have been denied the
right to engage in your chosen profession, subjected to a psychiatric
examination with a preordained outcome, branded as mentally unstable and
eventually, sentenced to a gulag or mental institution in one of Andrei
Vyshinsky’s infamous show trials. Stalin’s judges were knowing
accomplices to this judicial travesty, never failing to find the ‘facts’
Vyshinsky needed to hear.
> I viewed your website, and it is an incoherent
> rambling with no apparent logic.
While I would concur that Bob's tome is not particularly well
written, that doesn't detract from the substance of the pervasive
constitutional violations of which he complains. As for his exposition
of LSAS, I take it that you have never been abused by America's kangaroo
court system.
> I have seen many clients with the same
> hate and fear because they don't understand the process and the power over
> their lives is in another person's hands.
How about the people who *DO* understand the process, and know that
it has become so unfathomably corrupt that to meekly submit to it would
be to sacrifice your most basic rights as a man?
Take Jack Thompson, for instance. I've crossed swords with him, and
I would personally testify that he's an asshole of the highest order.
But does that render him unfit to practice law? That he was harassed by
the Bar for his constitutionally protected activities is beyond cavil.
Tell us, Taylor, where *are* his defenders?
> I did not see any proposed
> solutions in your website which shows me that you are not interested in
> improving the system, only railing against it.
I don't think the system 'needs' anything, apart from the healthy
dose of sunshine Bob is at least trying to provide. Judges (and other
breeds of cockroach) prefer to work in the shadows -- and existing civil
rights law would be robust enough to curb most abuses, if it were ever
enforced against the good-old-boy network.
As for me, I have filed a constitutional challenge to the practice of
appellate courts issuing so-called "unpublished" (iow, non-precedential)
opinions. Judges routinely wipe their asses with the Constitution,
and have done so for a very long time. As Professor Monroe Freedman,
one of the nation’s leading scholars on judicial ethics, observes:
Frankly, I have had more than enough of judicial opinions that bear
no relationship whatsoever to the cases that have been filed and
argued before the judges. I am talking about judicial opinions that
falsify the facts of the cases that have been argued, judicial opin-
ions that make disingenuous use or omission of material authorities,
judicial opinions that cover up these things with no-publication and
no-citation rules [cite available].
Tell me how our system has fallen into such shocking disrepair as to
permit a judge to fabricate his own facts, deviate from the published
law of the jurisdiction, then bury his work product outside the 'river
of precedent' so essential to preserving the health of our common-law.
Then, tell me why this does not infuriate you as much as it does Bob.
Crickets on standby, Taylor.
Taylor
"Dane" <quack...@hotmail.com> wrote in message
news:1141696...@sp6iad.superfeed.net...
I agree attorney discipline should not be handled by the bar association,
which should be voluntary. Attorney discipline should be handled by a
separate state agency. My bar dues would go down from $400 per year to
under $100.
However, the rest of the article is not accurrate. Attorneys are held to a
higher standard than other professions. Not only can an attorney be sued in
court for malpractice by anyone, the state can discipline attorneys
including taking their license away. Contrary to the article, there are
many attorneys disciplined each month
(http://www.calbar.ca.gov/state/calbar/calbar_cbj.jsp?sCategoryPath=/Home/Attorney%20Resources/California%20Bar%20Journal/March2006&MONTH=March&YEAR=2006&sCatHtmlTitle=Discipline&sJournalCategory=YES).
The article mentions judicial corruption but does not list any examples. I
have never seen a new story about judicial corruption and have not
experienced any in 10 years of practicing law.
Ken Smith
> The article mentions judicial corruption but does not list any examples.
What would you call it when a judge decided a case in which he or she
had a direct, personal, and substantial pecuniary interest in reaching a
conclusion against one of the parties? (Think 18 U.S.C. Sec. 242, for
starters.)
> I have never seen a new story about judicial corruption and have not
> experienced any in 10 years of practicing law.
I have yet to personally witness even one single instance of judicial
fealty to the law in ten years, even though I can document myriad abuses
of office within that same time frame.
I guess that it all depends on your experience, doesn't it? When you
practice more mundane aspects of criminal or tax law involving ordinary
citizens, you aren't likely to experience corruption. But whenever it
involves the high and mighty, judicial corruption is more the rule than
the exception.
Most of the people who complain about our kangaroo courts have sound
personal reasons for doing so....
Taylor
"Ken Smith" <for...@it.com> wrote in message news:440DAC70...@it.com...
I am a civil litigator and am in court almost every day. I am sure you can
find isolated examples of judicial corruption, but those are very rare.
Most people who complain are usually embittered parties and who don't
understand and fear the system.
Bob
All will spark rework of the piece. Trust me when I say that the
reporting rests on solid ground. The manuscript in progress is replete
with examples of corruption. My story alone, like Eubanks, shows the
Bar police at work. Look at the Farah case, which background is now
referenced at the bottom of every chapter with a link. That background
information of estimated fraud to the tune of $700,000, well known to
the Bar, goes without sanction. The law firm and lawyers continue
without sanction. And what about the legal consumer who isn't being
made whole. It's a disgrace.
What about the two lawyers convicted of felonies who still have their
legal licenses, while the Bar bears down on us non-lawyers with
Detectives, like Jok, who are supposed to enforce no letter writing,
one non-lawyer for another? What about the Bar's Cease and Desist
Affidavit, filled with faulted statements of law that it tried to
pressure me into signing without Counsel (fortunately I knew enough to
know it was wrong)? What about a simple action for Declaratory relief,
provided for in the case law to resolve the questions that unsigned
affidavits to cease and desist raise, and a court which wouldn't read
my complaint and warned me not to come back? What about that? You
call that honorable,
Let me get off my high horse and ask Ranger for a good email address,
so I can return his email which had a non-deliverable concentric
address.
Gentlemen, if you'd be so kind as to explain what is not written well
about the book, I'd appreciate. Please be assured that, just ahead, I
will heavily annotation, where every detail will be supported by
documentation. But I take it, from your comments, style is lacking..
If you can guide me, I'd so appreciate it.
I'm going to study this thread thoroughly for all its great
information. Thank you all so much. This week's Chapter 6 "Pandora's
Bankruptcy" will examine the abuses in that arena. Someone quite
rightly commented that the chapters are not tied together. By the time
I'm complete, however, that will be remedied, as the piece as a whole
is now coming into sharp focus.
Again my thanks for all comments, keep them coming,
Bob Sherin, Non-lawyer
Ken Smith
With all respect, they are distressingly common ... especially, if
you know where to look. What you don't know -- even as a practicing
lawyer, reading a published opinion! -- is that judges routinely take
astounding liberties with the facts of cases.
Judges routinely wipe their pathetic arses with the Constitution, and
have done so for a very long time. As Professor Monroe Freedman, one of
the nation’s leading scholars on judicial ethics, observes:
Frankly, I have had more than enough of judicial opinions that bear
no relationship whatsoever to the cases that have been filed and
argued before the judges. I am talking about judicial opinions that
falsify the facts of the cases that have been argued, judicial opin-
ions that make disingenuous use or omission of material authorities,
judicial opinions that cover up these things with no-publication and
no-citation rules [cite available].
How often do you read unpublished cases, Counselor? If you practiced
in Colorado, you can't even get to them, as their opinions aren't even
disseminated to the public. You can't know all of the corruption around
you, because you have no credible grounds upon which to judge. However,
it can be fairly stated that "the system" is rife with opportunities for
mischief, which unscrupulous judges avail themselves of on a routine basis.
You don't need to be a genius to figure out that Ms. Huffer is on to
something. I've had attorney friends leave practice for the very same
reason. A lot of them drink like fish, and you'd be shocked as to how
many are on anti-depressants.
Merritt and Brudney have done a comprehensive study showing that the
largest factor determining whether you will succeed in an appeal in one
highly homogenized area of the law (it's difficult to study many areas
in a disciplined and systematic manner) is the political persuasion of
the judge. [cite available] Rule of law? WHAT rule of law?!?
Tell me about the *magnificence* of our kangaroo court system,
Taylor! The Constitution and Bill of Rights aren't even worth the paper
they are printed on any more -- all because our judiciary is so
completely out of control. Even in *civilised* countries like Iran,
judges are personally accountable for their actions on the bench. But
not here.
> Most people who complain are usually embittered parties and who don't
> understand and fear the system.
You mean, like this guy?
"Night after night on the talk shows, I heard criticism being leveled
at Judge Ito. But I took a different position, born of years spent
enduring the relentless abuse of tyrant judges, from having seen my
clients' rights placed in severe jeopardy at the hands of blockheads
in robes whose only claim to judicial excellence was their ability to
scream and shout and intimidate everyone who came before them.
Ask trial lawyers who have been around the block even once, and they
will tell you that many judges are mammal eating monsters that feed
on lawyers and their cases, trample over justice, and spew their venom
randomly over the courtroom because they do not possess the intelli-
gence or judicial temperament to preside over a fair trial.
"Courtroom are frightening places. Nothing grows in a courtroom--no
pretty pansies, no little children laughing and playing. A courtroom
is a deadly place. People die in courtrooms, killed by words. If you
wake up someday in a courtroom and long to tell your story to someone
who can hear and understand you, someone who will give a damn, who
will give you a just hearing, you will be shocked. You want to tell
the jury that you are being railroaded? You aren't allowed to speak.
Your lawyer isn't, either. Perhaps he can sputter. He can object. He
can bow and scrape before the judge. If he's not too frightened of
the despot up there, he can crowd into the half hour, arbitrarily
allowed by the judge, an opening statement that should take at least
two hours.
"I have seen those judges pace back and forth across that little stage
up there, smirking, peering down, hollering, interrupting. I have seen
them nail lawyers to podiums like goats tied to a stake, or banish
them to counsel table like lepers. Your lawyer can't communicate tied
to a stake or banished to a tabletop. I've seen judges who, the day
before they ascended to the bench, couldn't ask the first intelligent
question on voir dire, but who, the day after, sat up there as a
judge, carrying on a voir dire, carrying on voir dire for the liti-
gants that, if I had conducted it, would have been adjudged as gross
malpractice. Often the result is the selection of a jury riddled with
prejudice or jurors who are predisposed to convict. I watch judges
bullying prospective jurors into saying what the judge wishes them to
say. I hear them read instructions to the jury that are critical to
justice but that no one, not even the lawyer who submitted the
instructions, can understand."
I think he's a pretty damn good trial lawyer -- better than you or I
would hope to be. And he doesn't seem to be entirely satisfied with the
soundness of the system.
Most practicing litigators are craven whores, who wouldn't even dream
of saying *anything* bad about a judge he might practice in front of in
public, for fear of retribution in court. As Professor Carl Bogus wryly
observes:
Some people are more vulnerable to a lack of criticism than others,
and among the most vulnerable are judges. ... Saying that lawyers
treat the judges with deference failes to capture the interaction;
it is more accurate to say that lawyers bow and scrape. Some law-
yers have elevated fawning to an art form, pulling it off with sub-
tle elegance. But few tell a judge she is wrong. [cite available]
The victims of our system -- of which they are many! -- are often the
ones you hear of. And as a general rule, they get an education in one
hell of a hurry. Moreover, for every one of us, there are a hundred or
more who have cause to complain. Those who stop complaining are those
who have finally given up.
Ken Smith
Sure, it does. The stress level is truly enormous. Ever been there?
Didn't think so.
> and is probably made up.
From the profession and the very state Bar who gave us the "Twinkies"
defense, *that* is rich.
Dane
[...]
>
> I'm going to study this thread thoroughly for all its great
> information. Thank you all so much. This week's Chapter 6 "Pandora's
> Bankruptcy" will examine the abuses in that arena. Someone quite
> rightly commented that the chapters are not tied together. By the time
> I'm complete, however, that will be remedied, as the piece as a whole
> is now coming into sharp focus.
I'll be looking forward to reading it, Bob.
>
> Again my thanks for all comments, keep them coming,
>
> Bob Sherin, Non-lawyer
>
----== Posted via Newsfeeds.Com - Unlimited-Unrestricted-Secure Usenet News==----
Bob
First, you are the one who should write the book. God, you are a
writer for sure. So now I needn't ask what my book doesn't have; I can
see it from your post.
Lest The Florida Bar return on a bogus persecution under the UPL
banner, gentlemen, please be informed I am not a licensed member of any
bar, surely no trial attorney. I am simply a non-lawyer who has a big
beef with the phoney Florida Bar, and Ken you wax far more eloquenty
than I could ever hope to, though I'm going to try.
Guys, this is such a great thread to quote that please tell me, anyone,
if you don't want to be quoted.
All I can say is wow, for you too Taylor. I do not in any way agree
with your position but I sure am glad you're here and part of the
dialogue.
Ken, you gave me an address that didn't work. Could you email me one
that does.
Bob Sherin, Non-lawyer
Ken Smith
> Ken,
>
> First, you are the one who should write the book. God, you are a
> writer for sure. So now I needn't ask what my book doesn't have; I can
> see it from your post.
You need to address the problem from a national perspective, as it is
a national problem.
> Lest The Florida Bar return on a bogus persecution under the UPL
> banner, gentlemen, please be informed I am not a licensed member of any
> bar, surely no trial attorney. I am simply a non-lawyer who has a big
> beef with the phoney Florida Bar, and Ken you wax far more eloquenty
> than I could ever hope to, though I'm going to try.
>
> Guys, this is such a great thread to quote that please tell me, anyone,
> if you don't want to be quoted.
I would prefer not to be quoted in this thread, since my off-the-cuff
(and usually unedited) prose really isn't up to professional standards.
Besides, if you are willing to trudge through law review articles,
there are plenty of judges who have publicly criticized the system.
> All I can say is wow, for you too Taylor. I do not in any way agree
> with your position but I sure am glad you're here and part of the
> dialogue.
I'm hoping that he contributes to the discussion in a more meaningful
capacity than the firing off of unsubstantiated one-liners.
Dane
http://members.aol.com/rommellaw/justicedenied.htm
http://www.truthinjustice.org/p-pmisconduct.htm
http://www.outlawslegal.com/vault/trib4.htm
http://www.outlawslegal.com/evil.htm
Ken Smith
> "Bob" <She...@bellsouth.net> wrote in message
> news:1141778706.2...@u72g2000cwu.googlegroups.com...
>
>>Ken,
>>
>>First, you are the one who should write the book. God, you are a
>>writer for sure. So now I needn't ask what my book doesn't have; I can
>>see it from your post.
>>
>>Lest The Florida Bar return on a bogus persecution under the UPL
>>banner, gentlemen, please be informed I am not a licensed member of any
>>bar, surely no trial attorney. I am simply a non-lawyer who has a big
>>beef with the phoney Florida Bar, and Ken you wax far more eloquenty
>>than I could ever hope to, though I'm going to try.
>>
>>Guys, this is such a great thread to quote that please tell me, anyone,
>>if you don't want to be quoted.
>>
>>All I can say is wow, for you too Taylor. I do not in any way agree
>>with your position but I sure am glad you're here and part of the
>>dialogue.
>>
>>Ken, you gave me an address that didn't work. Could you email me one
>>that does.
>>
>>Bob Sherin, Non-lawyer
>
> http://members.aol.com/rommellaw/justicedenied.htm
Dane, you consistently do one fine job with your research. This one
is fuckin' POWERFUL! Government agents sexually molested his daughter,
but there's nothing he could do about it?!? And they kicked HIM out of
the hearing?!?
> http://www.truthinjustice.org/p-pmisconduct.htm
This quote was worth the price of admission: "There is no crueler
tyranny than that which is exercised under cover of law, and with the
colors of justice ..." U.S. v. Jannotti, 673 F.2d 578, 614 (3d Cir.
1982)(Aldisert, J., dissenting) (quoting Montesquieu, De l'Esprit des
Lois (1748)). It's part of one of the most brilliant dissents I have
read in years, which I have takent the liberty of reproducing in its
entirety for the edification of those who may not have access to a law
search engine.
Here's another quote with direct relevance to this discussion: "Many
sins in the law have at times been swept under a jurisprudential rug in
the guise of fact finding." Id. at para. 399 & fn. 7 Brokers Title Co.
v. St. Paul Fire & Marine Ins. Co., 610 F.2d 1174, 1177 (3d Cir. 1979).
Imagine! Ten years' experience in civil litigation, and Taylor
doesn't even know how our judges cook the books!
> http://www.outlawslegal.com/vault/trib4.htm
This one ought to inflame Ted's hemorrhoids something awful. There
is nothing he can do, even in the preposterous chance that everything he
says is true.
_______________________________________________________________________
[383] ALDISERT, Circuit Judge, dissenting, with whom WEIS, Circuit
Judge joins, with the exception of Part VII.
[384] The division of the court in this extremely important entrapment
case reflects fundamental and irreconcilable differences in the values
attached to two primary integrants of the American tradition of justice:
[385] To what extent should federal judges assume the responsibility
for protecting American justice traditions, and to what extent should
judges delegate this responsibility to the jury?
[386] To what extent should federal judges endorse tactics of the kind
used by the Federal Bureau of Investigation in this case?
[387] The majority opinion reads like a paean to the FBI for its
conduct in this case; but as an American citizen and as a federal judge,
I find that conduct revolting. I agree completely with Justice Holmes:
[388] It is desirable that criminals should be detected, and to that
end that all available evidence should be used. It also is desirable
that the Government should not itself foster and pay for other crimes,
... We have to choose, and for my part I think it a less evil that some
criminals should escape than that the Government should play an ignoble
part.*fn1
[389] The FBI has a long and proud history. It has earned the
admiration and respect of the American people for its efficiency and
fairness. The accomplishments of its agents have been dramatically
portrayed in books and on the screen. But like all human institutions it
is subject to the frailties of man. Under its distinguished director
William H. Webster the instances in which it has been faulted for its
conduct indeed have been few in number, and in that we may take great
satisfaction. One reason for the low incidence of aberrational conduct
has been the sense of responsibility of the Bureau's men and women. An
additional restraint has been the knowledge that the courts, in
administering the criminal justice system, would scrutinize the agents'
activities. The chief deterrent, however, perhaps is the resolve shared
by agents, judges, and the public that the FBI not become an American
version of the secret police so infamous in many countries.
[390] I.
[391] A.
[392] We judges come to our robes bearing the stigmata of our
respective experiences. I readily confess that being born to an
immigrant father and reared in a Western Pennsylvania community peopled
largely by European immigrants and their children placed indelible
impressions on me at an early age. The religious and political refugees
who came to this land at the turn of the century had much to fear from
the old country's secret police, but one of the greatest abhorrences was
the agent provocateur, a person employed to pretend sympathy with
members of a group and incite them to illegal action, and thus to expose
them to apprehension and punishment. From my childhood I remember
stories told in broken English by gnarled refugees from Russia, the
Ukraine, and Poland, recounting in graphic detail the abuses inflicted
upon them in peasant villages by the Ochrana, the secret police of the
Czar.*fn2 Lacking the personal drama, but nevertheless equally
authoritative, were academic studies and news accounts of the later
operations of the OGPU, the dreaded secret police of the Stalinist era.
[393] The apogee of government artifice, guile, and deceit was reached
with the formation of the Gestapo in Nazi Germany. The story of the
Holocaust is an account of the agent provocateur at his ruthless worst.
It is an account of fraudulent representations to determine the identity
of Jews, of cajoling incrimination of father by son and son by father,
of lies about the purpose of detention and detention camps, "Arbeit
Macht Frei" ("Work Will Set You Free"), and of gas chambers disguised as
shower rooms. Such spectres cannot be easily exorcised.
[394] The Gestapo were the consummate users of the "honey pot," a
technique government witness Melvin Weinberg proudly described as the
technique the government utilized in this case.*fn3 The FBI employed the
honey pot through a secret agent who, by ostentatiously flashing and
giving away wads of money, would attract both the wary and the unwary,
the scrupulous and the unscrupulous. Having attracted, the honey pot
would serve also to capture those who were willing, that is,
predisposed, to make the flight to the honey in the first place, as well
as those who would have been unwilling, but who made the flight to the
pot only because of the strength of the lure. But this trap was
particularly selective: the operators of this honey pot personally
selected those who could share the sweet stuff. The party was by
invitation only; when the guests came to the pot it was not necessary
for them to ask for a sample; rather, their mouths were opened for them
and the honey poured down their gullets.*fn4
[395] Moreover, it is no longer open to question that the ABSCAM
operation was deliberately leaked to the press. See United States v.
Criden, 633 F.2d 346, 348 (3d Cir. 1980), cert. denied sub nom. Schaffer
v. United States, 449 U.S. 1113, 101 S. Ct. 924, 66 L. Ed. 2d 842
(1981). I agree with Professor Paul Chevigny of New York University:
[396] (T)he power to tempt into crime and then to leak the story is a
particularly potent combination. Once the authorities have selected the
target of their investigation, they can make the charge "stick" in the
press, regardless of how much temptation was offered, regardless of
whether the courts would recognize a defense, and regardless of the
reason the victim was chosen.*fn5
[397] To the Department of Justice, its operation was a taste of
honey; to me, it emanates a fetid odor whose putrescence threatens to
spoil basic concepts of fairness and justice that I hold dear.*fn6 That
the FBI has earned high praise for its performance in the traditional
discharge of its duties should not immunize the secret police tactics
employed in its ABSCAM operation from appropriate and vigorous
condemnation. If we fail to correct when necessary, we do no favors to
those who have erred.
[398] B.
[399] The majority allow the entrapment question in this case to be
resolved by a lay jury. As staunchly as I believe that the jury,
reflecting the conscience of the community, should be society's
instrument for resolving controverted facts once a minimum legal
threshold has been established, I stoutly believe also that the jury,
untrained in the law, should never be called upon to design and
construct that threshold.*fn7 This is precisely what the majority have
done here. They permit the jury to perform a responsibility which by law
and by formal commission belongs to the judges of the Third Article.*fn8
[400] Defining the precise division of authority in the judge-jury
relationship is always a sensitive and delicate responsibility. Where
the defense of entrapment is interposed, however, the responsibility is
appreciably intensified. The mere submission to the jury may present the
jury with a Hobson's choice as to the defendant, because the entrapment
defense requires the defendant to admit the commission of deeds which,
but for their inducement by the government, would constitute the
commission of a crime. A lay jury conditioned by years of published
criticism of judges "who let the guilty go free on a technicality" may
well be reluctant to give effect to the defense.
[401] In our American legal tradition the jury has but one function-to
resolve controverted facts. I defend this simple thesis: There was not
one fact, controverted or otherwise, or resulting inference that allowed
the submission of the entrapment issue to the jury. Although one can
fashion a lengthy and tortuous argument that, under the facts here, the
entrapment issue was properly submitted to the jury, I am not willing to
have basic precepts of the American legal tradition so papered by reams
of irrelevancies that only a jurisprudential masquerade is left for the
viewing. I would hold, based on all the testimony, crediting specially
that of the government and drawing all reasonable inferences in its
favor, that there was inducement as a matter of law and that a
reasonable jury could not conclude that the government proved beyond a
reasonable doubt that the defendants were predisposed to commit the
crime. Under these circumstances, there was no jury question. Under
these circumstances, there were no controverted facts for the jury to
resolve. Under these circumstances, "it is as fatal as it is cowardly to
blink facts because they are not to our taste."*fn9
[402] In my approach to this case, I acknowledge that transgressors
must be punished for conduct that violates legal standards, but I place
a restriction on this abstract theory: those who receive society's
commission to go forth and capture transgressors may not themselves
transgress. A free society can exist only to the extent that those
charged with enforcing the law respect it themselves. "There is no more
cruel tyranny than that which is exercised under cover of the law, and
with the colors of justice."*fn10 The law enforcers may themselves offer
inducements to transgress if, and only if, the persons so induced were
predisposed to violate the law and the offered inducements provided only
the opportunity to act on their predispositions. A society cannot long
remain free if we permit the law enforcer to offer more than opportunity
for transgression; a free society cannot and will not endure if it
permits law enforcers to select individuals arbitrarily, and then to
proceed by deception to persuade, cajole, entice, and implant a
law-breaking disposition that was not theretofore present. Just as we
will not admit into evidence a statement obtained by police methods that
overbear or overwhelm the will, even if it admits to the commission of a
crime, Fikes v. Alabama, 352 U.S. 191, 77 S. Ct. 281, 1 L. Ed. 2d 246
(1957); Brown v. Mississippi, 297 U.S. 278, 56 S. Ct. 461, 80 L. Ed. 682
(1936), we refuse to deem as an offense against society conduct
resulting from ideas which police deliberately implanted in the mind of
the actor, Sherman v. United States, 356 U.S. 369, 78 S. Ct. 819, 2 L.
Ed. 2d 848 (1958); Sorrells v. United States, 287 U.S. 435, 53 S. Ct.
210, 77 L. Ed. 413 (1932).
[403] Federal public policy, and, indeed, basic social policy, dictate
that it is better to let a technical transgressor go free than to allow
federal law enforcement officials to manufacture crime that entraps the
unwary innocent. The predicate of this public policy against entrapment
is threefold. First, it recognizes the awesome power of the financial
and personnel resources at the disposal of federal law enforcement
authorities. Second, reflecting the Judeo-Christian understanding that
weakness has inhered in mankind since the days of Adam, it appreciates
that even the most morally scrupulous members of society can be
persuaded to breach behavioral standards if presented with sufficiently
tempting inducements. Third, it acknowledges that a line can be drawn
that will permit the proper use of government resources to identify and
prosecute the wrongdoer and at the same time serve as an instrument to
prevent abuse of those resources. If the government presents
temptations, small or large, but the defendant is predisposed to succumb
to them, then the government's conduct is usually permissible;*fn11 if
the defendant is not predisposed, then the government's conduct is
beyond the pale.
[404] The majority and I differ upon where to draw that line and upon
the relative competences of judges and juries to protect society from
secret police excesses. The majority's superbly crafted essay selects
assorted legal precepts and then unerringly extends "a maxim or a
definition with relentless disregard of consequences to "a dryly logical
extreme.' "*fn12 It bids fealty to Judge McSherry's view, that
"obviously a principle, if sound, ought to be applied wherever it
logically leads, without reference to ulterior results."*fn13 I reject
this process, whether one calls it Begriffsjurisprudenz, mechanical
jurisprudence, or slot machine justice. I believe that the proper test
of a legal rule is the extent to which it contributes to the
establishment and preservation of a social environment in which "the
quality of human life can be spirited, improving and unimpaired;"*fn14
and that law must be judged by the results it achieves, not by the
niceties of its inherent structure. "It must be valued by the extent to
which it meets its end, not by the beauty of its logical processes or
the strictures with which its rules proceed from the dogmas it takes for
its foundation."*fn15
[405] I refuse to proceed as if no important social issue were
involved in this case which implicates both the wrongdoing of city
public officials and the questionable activities of federal police
officials. I believe that we are confronting an extremely sensitive
intersection between morals and positive law, which demands that the
judiciary assume rather than shirk responsibility. To paraphrase Judge
Walter V. Schaefer, the philosophical difference that divides this court
depends upon a judge's unspoken notions about the role of the courts. If
he or she views the role of the court as a passive one, he or she will
be willing to delegate the responsibility for unpopular issues to the
jury and not care greatly what the result may be. If he or she views the
court as an instrument of society designed to reflect in its decisions
the highest values of the American legal tradition, he or she will be
more likely to risk public disapproval and to measure an unpopular cause
against the highest ideals and aspirations of the time.*fn16
[406] The rights conferred upon our society by judges of the Third
Article emanated from cases in which the defendants were unpopular and
generally regarded as transgressors-Dollree Mapp, Danny Escobedo, and
Ernesto Miranda quickly come to mind. In each case, a court, not a jury,
drew the line of demarcation between permissible and impermissible
police conduct to insure that enforcers of society's laws would not
violate established moral frontiers while exercising their stewardship;
it was federal judges, unmindful of editorials and broadcast plaudits,
who chose to stand tall and unbending. Like District Judge John P.
Fullam, those federal judges were unwilling to relegate the formulation
of these protections to the "coquetry of public opinion, which has her
caprices"*fn17 in the jury room.
[407] II.
[408] Let me clear the air as to what I perceive case law to regard as
legitimate and, therefore, permissible, undercover police work, and that
which goes beyond the pale. In the permissible category I put all
undercover activity that searches out contemplated or ongoing criminal
conduct and even results in actual participation in the illegal
enterprise.*fn18 In this same category I would justify an agent's
inducement of others to engage in crime, so long as there is proof of
predisposition by the others to participate in the illegal activity.
Where, as here, there is absolutely no proof that the defendants had any
disposition to commit an illegal act but for the government's
inducement, however, then the government's actions are impermissible,
and the defense of entrapment is available as a matter of law-and it is
for a judge and not a jury to blow the whistle on the improper conduct.
[409] The entrapment defense thus implicates two interrelated but
discrete elements: inducement and predisposition. See Hampton v. United
States, 425 U.S. 484, 96 S. Ct. 1646, 48 L. Ed. 2d 113 (1976); United
States v. Russell, 411 U.S. 423, 93 S. Ct. 1637, 36 L. Ed. 2d 366
(1973); Sherman v. United States, 356 U.S. 369, 78 S. Ct. 819, 2 L. Ed.
2d 848 (1958); Sorrells v. United States, 287 U.S. 435, 53 S. Ct. 210,
77 L. Ed. 413 (1932). Entrapment is a "relatively limited defense,"
Russell, 411 U.S. at 435, 93 S. Ct. at 1644 that "focus(es) on the
intent or predisposition of the defendant to commit the crime." Id. at
429, 93 S. Ct. at 1641. When the entrapment issue is joined, the burden
is on the government "to disprove the whole defense beyond a reasonable
doubt." United States v. Watson, 489 F.2d 504, 510 (3d Cir. 1973); see
Government of the Virgin Islands v. Cruz, 478 F.2d 712, 717 & n.5 (3d
Cir. 1973).
[410] The defense is a matter of statutory interpretation, rooted in
the notion that Congress does not intend to punish a defendant who has
committed all the elements of a proscribed offense if he was induced to
commit them by the government. Russell, 411 U.S. at 433-35, 93 S. Ct. at
1643-44; Sorrells, 287 U.S. at 445-51, 53 S. Ct. at 214-16. The
prosecution is not defeated by proof that the government has
participated in deceit or merely provided an opportunity or a facility
to commit the offense; the defense of entrapment is available only when
"the Government's deception actually implant(ed) the criminal design in
the mind of the defendant." Russell, 411 U.S. at 436, 93 S. Ct. at 1645.
In the felicitous phrase of Chief Justice Earl Warren, "a line must be
drawn between the trap for the unwary innocent and the trap for the
unwary criminal." Sherman, 356 U.S. at 372, 78 S. Ct. at 820. The
crucial question, then, is whether the defendant was induced to commit
the offense by agents of the government or predisposed to commit like
offenses whenever the opportunity arose. We have recognized, however,
that evidence of inducement may be highly probative of predisposition.
Judge Rosenn has expressed it succinctly: "(T)he stronger the
inducement, the more likely that any resulting criminal conduct of the
defendant was due to the inducement rather than to the defendant's own
predisposition." Watson, 489 F.2d at 511. See also United States v.
Burkley, 192 U.S. App. D.C. 294, 591 F.2d 903, 915-16 (D.C.Cir.1978),
cert. denied, 440 U.S. 966, 99 S. Ct. 1516, 59 L. Ed. 2d 782 (1979).
[411] Chief Justice Warren emphasized that the function of law
enforcement is the prevention of crime and the apprehension of
criminals, and "that function does not include the manufacturing of
crime." Sherman, 356 U.S. at 372, 78 S. Ct. at 820. A review of the
evidence in this case persuades me that the agents of the FBI were
consummate manufacturers of crime. They built the plant, they designed
the machinery, they operated it, and they covertly solicited the
defendants to be customers of their product. It is difficult to conceive
of a stronger case of inducement by the government.*fn19 Yet the
majority observe, with an almost casual tone:
[412] In view of the jury's verdict, we need not consider the
government's contention that the evidence of government inducement was
insufficient to warrant submission of the entrapment issue to the jury.
[413] Majority Opinion at 606 n.15. Faced with the uncontroverted
facts here, the government's contention, offered for the first time at
oral argument, that no prima facie case of inducement was presented,
does not reflect sober analysis or serious appellate argument but a
chatter of irresponsible frivolity. Studiously avoiding the impression
that their product was illegal, the FBI acted efficiently to ensnare
their arbitrarily selected customers within the ten days the local task
force had been allotted.*fn20 Their technique was a page torn from
Aleksandr Solzhenitsyn's vivid description of the dreaded Soviet Blue
Caps: "Just give us a person-and we'll create the case!"*fn21 I am
persuaded that this case presents a classic model of the type of
entrapment that our society emphatically condemns.
[414] III.
[415] Presented with a mere prima facie case of government inducement
or lack of a defendant's predisposition, the trial court is obliged to
submit an entrapment issue to the jury for a factual determination.
Where the evidence of inducement is overwhelming and the defendant's
lack of predisposition so evident that it points to only one reasonable
conclusion, however, "the question may be decided as a matter of law,
just as any other factual issue admitting of only one conclusion."
United States v. Klosterman, 248 F.2d 191, 195 (3d Cir. 1957). See
Sherman, 356 U.S. at 373-76, 78 S. Ct. at 821-22.
[416] Our role in reviewing the evidence is not to determine whether
the defendants' conduct amounted to an offense under the statute; yet
the majority's discussion of the evidence is oriented to precisely that
end. As such, the discussion is irrelevant to what I perceive to be the
sole issue before us: did the government present evidence sufficient to
sustain a jury finding that, beyond a reasonable doubt, the defendants
were predisposed to commit the offenses?
[417] A.
[418] I examine first the threshold issue of inducement. ABSCAM was
conceived by the FBI for one purpose: to seek out public officials
vulnerable enough to accept the lush gifts dangled before their eyes by
purported representatives of a fictional Middle Eastern potentate. They
enlisted as their chief executive officer an old friend, convicted
career swindler Melvin Weinberg, who not only was given probation by a
federal district court through the intervention of the FBI, but also was
paid extraordinarily well for his services. They entered Philadelphia by
seeking introductions through attorney Howard Criden, who had
extensively participated in corrupt transactions for cash rewards and
eagerly sought opportunities for more of the same, and they further
tempted him by dangling the lure of potential legal fees. FBI agent
Michael Wald, in the guise of Abdul Enterprises "expeditor" Michael
Cohen, advised Criden that the sheik was interested in building a hotel
in Philadelphia, and perhaps in other investments in the area, but only
if he could be assured of having the friendship of titled municipal
government officials.
[419] Wald eagerly sought to deal with every significant official whom
Criden and others named. Criden and Wald lured Schwartz and Jannotti not
only with offers of cash payments to them but also with the prospect of
a multi-million dollar investment in downtown Philadelphia. It is
reasonable to conclude, indeed it is the only reasonable conclusion,
that the councilmen would be desirous of such an injection of funds into
the city's economic arm, because it would provide jobs and expand the
city's tax base. They were repeatedly assured that the project would be
"legitimate." In addition, "the very amounts of the bribes were, to
paraphrase the language of the court in Scriber v. (United States, 4
F.2d 97, 98 n.4 (6th Cir. 1925) ), "a substantial temptation to a first
offense.' " United States v. Jannotti, 501 F. Supp. at 1200.
[420] These defendants were led to believe that the Philadelphia
investment was entirely contingent on the sheik's confidence, in
accordance with the dictates of "the Arab mind," that he had "friends"
with titles in city government. These representations were not only made
by Wald directly to Jannotti, as the majority admit, but also to
Schwartz via a Tinker to Evers to Chance play: Wald to Criden to
Schwartz. The majority blithely ignore the heart of the ruse devised by
the FBI entrepreneurs and naively suggest that since the record does not
disclose an actual communication, the basic premise underlying the scam
in ABSCAM was not communicated to the very sophisticated president of
the Philadelphia City Council by those who sought to enlist him.*fn22 It
was Wald, the government agent-not Criden, not Schwartz, not
Jannotti-who introduced this concept, which was summarized by Judge Fullam:
[421] Perhaps the crucial aspect of the undercover operation was its
emphasis upon "the Arab mind," "the Arab way of doing business." A
constant theme of the agents' representations was that their principals
would not undertake any project unless first assured of the "friendship"
of the persons with whom they were dealing. They were impressed with
titles, with persons in official positions of power and influence. Their
concept of "making friends" was that money had to be paid. At least
insofar as the Philadelphia aspects of the investigation were concerned,
there was no suggestion that the putative sheik required or expected any
violation of the law in exchange for the payment; he merely wished to be
assured that he had "friends" in high places.
[422] Id. at 1194. Finally, neither defendant volunteered for the
sheik's "friendship," nor did they actively seek or suggest that cash
payments would be appropriate. They were actively recruited and
solicited to accept large amounts of money, and they did.
[423] It is in the context of inducement that the stated purpose for
the payments is relevant. The threshold issue in entrapment is not what
constitutes the crime of bribery or extortion but what is the extent of
the inducement offered by the government agents. The statements of the
defendants that they would aid a "legitimate" project and the government
agents' failure to disabuse the defendants of their expressed belief in
the plan's legitimacy-while they nevertheless pressed money on the
defendants-are significant in appraising the extent of the government's
importunities.
[424] The proof of inducement is so compelling that ordinarily I would
quickly dispose of the government's argument. I have discussed the
evidence of inducement at some length, however, because of its relevance
to the question of predisposition. What Judge Rosenn expressed in Watson
bears repetition: The greater the inducement, the heavier the
government's burden of proving predisposition. 489 F.2d at 511.
[425] B.
[426] Criminal predisposition or intent, the "focus" of the entrapment
defense, Russell, 411 U.S. at 429, 93 S. Ct. at 1641, is perforce, under
the teachings of the Supreme Court, an inquiry into the defendant's
subjective state of mind. "(T)he controlling question (is) whether the
defendant is a person otherwise innocent whom the Government is seeking
to punish for an alleged offense which is the product of the creative
activity of its own officials." Sorrells, 287 U.S. at 451, 53 S. Ct. at
216. The inquiry must begin with the presumption that the defendant is
innocent; that is, that he was not predisposed to commit the crime. The
government cannot overcome that presumption except by showing criminal
predisposition beyond a reasonable doubt. There is no question, however,
that the prosecution is allowed considerable latitude in introducing
evidence to prove predisposition. "On the one hand, at trial the accused
may examine the conduct of the government agent; and on the other hand,
the accused will be subjected to an "appropriate and searching inquiry
into his own conduct and predisposition' as bearing on his claim of
innocence." Sherman, 356 U.S. at 373, 78 S. Ct. at 821 (quoting
Sorrells, 287 U.S. at 451, 53 S. Ct. at 216).
[427] The majority avoid a detailed discussion of the evidence in the
government's best case scenario of proof of predisposition, and for good
reason: the government's case does not survive close analysis. The
government relies heavily on certain recorded declarations of alleged
co-conspirators Criden and Johanson, to the effect that Schwartz and
Jannotti would be ready and willing to accept illegal payments in return
for political favors. It anchors its argument on the familiar
evidentiary rule that declarations made in furtherance of a conspiracy
are admissible against co-conspirators as evidence of guilt. See
Fed.R.Evid. 801(d)(2)(E). It cites evidence that Criden and Johanson
indicated that Schwartz and Jannotti would be "interested in doing
business," A453, and that Criden, at a time when he had not even met
either defendant, told Wald that each would "take a hot stove." A499.
Jannotti, Criden said, had "been through this ... a hundred times" and
would "take a hot stove, like a vacuum cleaner." A895, 905.
[428] The government argues that the jury could credit these
declarations as evidence of the defendants' reputations, and therefore
as probative of the ultimate factual question of predisposition. Cf.
Fed.R.Evid. 803(21) (permitting hearsay evidence of reputation). The
difficulty with this argument is that Criden and Johanson were not asked
for and did not attest to the councilmen's reputations among their
associates or in the community. Instead, the FBI agent, Wald, asked for
and was given statements of personal opinion. Evidence of opinion is
competent to prove character or a trait of character under the Federal
Rules of Evidence, a major departure from the common law. Fed.R.Evid.
405(a); see United States v. Curtis, 644 F.2d 263, 267 (3d Cir. 1981); 2
J. Weinstein & M. Berger, Weinstein's Evidence at 405-1 to 405-10 (1980)
(legislative history). Rule 405 permits only "testimony in the form of
an opinion," however, and Criden and Johanson did not testify. Untested
out-of-court declarations of opinion are not admissible to prove
character, and if they were admissible they would be insufficient to
support a finding of predisposition under the circumstances of this
case.*fn23
[429] The government thus attempts to bolster its case by relying on
conspirators' declarations to prove character, but it succeeds only in
demonstrating the fundamental insufficiency of its evidence. Rule 405(a)
permits proof of character by testimony as to reputation or by testimony
in the form of an opinion; and because predisposition is an essential
element of the entrapment defense, Rule 405(b) permits proof of specific
instances of conduct. Therefore, the government might have offered
evidence that the defendants had accepted illegal payments in exchange
for official favors on previous occasions, cf. United States v. Lemons,
470 F.2d 135 (3d Cir. 1972) (per curiam), cert. denied, 412 U.S. 929, 93
S. Ct. 2758, 37 L. Ed. 2d 157 (1973) (evidence of prior dealings in
illegal narcotics), or testimony that they were reputed among their
associates or in the community to be disposed to accept bribes, cf.
United States v. Robinson, 446 F.2d 562 (5th Cir.) (per curiam), cert.
denied, 404 U.S. 959, 92 S. Ct. 323, 30 L. Ed. 2d 277 (1971) (evidence
of reputation for unlawful dealings). The prosecution shunned these
methods of proof, however, and offers only untested declarations of
opinion to support the verdict. Even if I considered this evidence
admissible to prove predisposition, I would hold it insufficient as a
matter of law to justify submitting the question to the jury. Without
procedural safeguards designed to test its trustworthiness,*fn24 hearsay
evidence of opinion is simply insufficient to support a guilty verdict
in a criminal case.
[430] Given the evidence of overwhelming inducement, the government's
evidentiary burden to prove predisposition was commensurately
substantial. I need not attempt to delineate the outer limits of that
burden here, because, in my view, the prosecution's proof fell far short
of the requirement. The government's best case scenario shows that the
defendants arrived at the Barclay at the government's invitation,
discussed city government and hotel investments, and accepted
unsolicited offers of money. The circumstances demonstrate that they
were offered substantial sums for their "friendship," that they
considered the project in the city's best interests, and that they were
made to believe that the sheik would not invest in Philadelphia unless
he were permitted to "buy friends." In essence, the government's case is
that the defendants consummated the crime by accepting money for
friendship. Receiving money under these circumstances, whatever its
relevancy to prove extortion, was insufficient as a matter of law to
prove predisposition. The government has demonstrated convincingly that
it has massive resources to encourage and inveigle local officials to
commit crimes; that if sufficiently attractive monetary and civic
inducements are dangled, there are fish who will bite. It does not
demonstrate that the fish were predisposed to take the bait.
[431] Viewing the government's case most generously, as we must, no
finder of fact could reasonably infer beyond a reasonable doubt that the
defendants were predisposed, given the circumstances of massive
inducement established by the government's proof. Accordingly, I agree
with Judge Fullam's determination that the government failed to present
sufficient evidence of predisposition to submit the entrapment issue to
the jury. I have made "due allowance for all reasonably possible
inferences" favoring the government's case, but I must conclude that to
accept the jury's verdict would be to allow "mere speculation ... to do
duty for probative facts." Galloway v. United States, 319 U.S. 372, 395,
63 S. Ct. 1077, 1089, 87 L. Ed. 1458 (1943).
[432] IV.
[433] The majority's clever approach to this very sensitive problem is
a tribute to the skilled advocate's art. Set forth in Part III of their
opinion, it is an unrelenting exhortation of major and minor premises
that has an uncanny resemblance to mechanical justice. I do not fault
its syllogistic structure; I quarrel only with the choice of major
premises. I fault the majority's refusal to take as a beginning point
the critical issue in any case where, as here, there is evidence of
government inducement: Did the prosecution make out a prima facie case
of predisposition on the part of the defendants beyond a reasonable
doubt so as to merit submitting the entrapment question to the jury?
[434] Instead, the majority have turned our American criminal justice
system upon its head and reversed the burden of proof: Instead of
requiring the government to prove that the issue was properly submitted
to the jury, they demand proof from the defendants that it should not
have been. Thus, the majority's approach, ringing and singing, is a
classic example of the fallacy of ignoranti elenchi, or
irrelevance.*fn25 Instead of proving point A, the defendants'
predisposition, their argument proves unrelated point B, a rebuttal of
factors which the district court considered in setting aside the
verdict. In the scholastic rhetorical sense, the majority's obligation
was to present a confirmatio of the government's proof, not a refutatio
of isolated contrary contentions.
[435] Thus, the major discussion of this very important issue, set
forth at great length in Part III of the majority opinion, consists only
of a refutation of what is described as the district judge's three
stated reasons for his post-trial decision. Having rebutted these
reasons, albeit skillfully, the majority rest their case. At most,
however, what the majority have done, incident to refuting the benignity
of the payments, is to prove a theory of extortion. They have not
demonstrated how the government met its burden of proving defendants'
predisposition to commit the offense. I can accept every iota of the
majority's analysis in Part III and still conclude that their analysis
passes wide of the relevant mark. The majority have proved that the
amount of the money offered is no defense to extortion because city
councilmen should have known better, III A; that there was no
"benignity" of the payments, III B; and that Schwartz and Jannotti
accepted the money, III D. Of the four items discussed by the majority
in Part III, the only factual component relevant to the issue of
pre-disposition was the "Arab mind" factor, Part III C.
[436] The majority observe:
[437] After being carefully and specifically instructed on the
significant factual issues in this case, the jury found the defendants
guilty, thereby rejecting the entrapment defense. Its verdict represents
a finding that, based on the totality of the evidence, including the
observations by the jury of the actions, words, voice inflections and
mannerisms of the defendants and the F.B.I. agents, the defendants were
predisposed to engage in political corruption. The jury's verdict also
represents a rejection of the notion that appellant Schwartz believed
the $30,000 payment was a "consulting fee", as well as a rejection of
the argument that the defendants were led to believe that the payment of
money was simply to enable the representatives to report back to the
sheik that they had made friends in accordance with the "Arab way" of
doing business. Finally, it represents a rejection of defendants'
argument, accepted by the district court, that the defendants were led
to believe that unless they took the payments the hotel project would
not come to Philadelphia.
[438] Majority Opinion at 605.
[439] The majority thus conclude:
[440] The ultimate factual decisions in an entrapment case must be
left to the jury. Where, as here, the jury was uniquely equipped to
inquire into the calculus of human interaction, a court should not
interfere with its conclusions. We conclude that in determining that
defendants were entitled to a judgment of acquittal on the ground of
entrapment as a matter of law the district court impermissibly
substituted its own determination of the credibility of witnesses, the
weight of the evidence and the inferences to be drawn from the evidence
for that of the jury.
[441] Id. at 606.
[442] The last quoted sentence distills the basic division in this
court which, at bottom, is a disagreement over the assignment of
competences between judge and jury. To decide whether a jury question
was presented, one must assume the credibility of the opposing
witnesses; no contest was presented here as to credibility and,
therefore, there was no need to go to the jury on that issue. As to the
weight to be given to the evidence, that can relate to one of two
factors: credibility, where it is placed in issue (and here it was not);
or to the standard of proof beyond a reasonable doubt. In the latter
situation, the judge-and not the jury-first makes this legal
determination, and he must draw all reasonable inferences in favor of
the prosecution. I suggest that this is the test that should have been
applied-not to a solitary excerpt from Judge Fullam's explanation-but to
all the evidence produced on the issue of whether the defendants were
disposed to commit the acts absent the inducement of the government. The
majority have accurately described the standard of review of a judgment
n. o. v., Majority Opinion at 597, but they then proceed to apply a
newly formulated standard wherein they examine not the entire record,
but only the evidence relevant to the district court's statement of why
it set the verdict aside. See id. They thus substitute for a major
jurisprudential hurdle less imposing hurdles that they can leap with
facility.
[443] Popular opinion may not care greatly about the fates of those
entrapped and convicted by the government and its agents provocateur,
but federal judges must care about the sword that is plunged into the
body of trust between a people and their government. That body can
withstand only so many wounds before its life will be no more. Thus, I
have set forth an extended discussion of the jurisprudential, case law,
and common sense*fn26 reasons why I cannot tolerate what the majority do
today. Speaking as if no large questions were involved, they will
relegate to the jury the resolution of conflicting societal interests, a
resolution that in the tradition of judicial courage belongs to the
judge. Moreover, they justify it all in an argument built upon
irrelevancy. The fundamental interests of justice in a free society
deserve better. Therefore, I respectfully but vehemently dissent.
[444] V.
[445] I turn now to the question of the district court's jurisdiction
under the Hobbs Act. The jury found both defendants guilty under Count
III of the indictment of conspiracy to obstruct interstate commerce in
violation of the Hobbs Act, 18 U.S.C. § 1951.*fn27 Indeed, this was the
only basis of Jannotti's conviction. The district court set aside the
verdict and dismissed Count III of the indictment, reasoning that the
Act "does not operate to confer federal jurisdiction over purely
hypothetical potential impacts on commerce which could never occur." 501
F. Supp. at 1185. I agree, and I therefore contend that, in addition to
the entrapment defense, the judgment of acquittal on Count III should be
affirmed for this separate reason.
[446] I begin the Hobbs Act analysis with the familiar precept that
federal courts are courts of limited jurisdiction.*fn28 Federal district
courts are established by Acts of Congress and their jurisdiction is
created solely by Congress. The majority have set forth the basic theme
that the Hobbs Act definition of interstate commerce is coextensive with
the constitutional definition. Majority Opinion typescript at 590-591.
But some interference with or effect on interstate commerce, however
minimal, is a jurisdictional element of a Hobbs Act offense, in the
sense that a robbery, extortion, attempt, or conspiracy that has no
contact with interstate commerce is beyond the subject matter competence
of the district court. United States v. Mazzei, 521 F.2d 639, 642 (3d
Cir.) (in banc), cert. denied, 423 U.S. 1014, 96 S. Ct. 446, 46 L. Ed.
2d 385 (1975); United States v. Staszcuk, 517 F.2d 53, 59-60 (7th Cir.)
(in banc) (Stevens, J.), cert. denied, 423 U.S. 837, 96 S. Ct. 65, 46 L.
Ed. 2d 56 (1975). Cf. United States v. Feola, 420 U.S. 671, 694-96, 95
S. Ct. 1255, 1268-69, 43 L. Ed. 2d 541 (1975) (presence of a federal
officer necessary to establish federal jurisdiction over a conspiracy to
violate 18 U.S.C. § 111, which prohibits assaults on federal officers).
[447] The majority rely on two decisions from the Seventh Circuit that
appear to represent the frontiers of Hobbs Act jurisdiction in the
federal courts today, Staszcuk and United States v. Rindone, 631 F.2d
491 (7th Cir. 1980) (per curiam).*fn29 Accepting the precepts there
announced I conclude that the evidence presented by the government at
trial failed to demonstrate the necessary "realistic probability that an
extortionate transaction will have some effect on interstate commerce."
Staszcuk, 517 F.2d at 60. In Staszcuk the defendant city councilman
received $3,000 from a private individual and subsequently did not
oppose a zoning change permitting construction of an animal hospital.
After receiving bids from three contractors, however, the donor of this
largesse changed his plans and used his land in a manner permitted by
the unamended ordinance. The defendant contested federal jurisdiction,
and the government presented the testimony of one of the contract
estimators that construction of the animal hospital would have required
the use of components manufactured outside the state. Determining that
"a threatened effect on interstate commerce is sufficient to bring the
statute into play notwithstanding the absence of any actual effect," id.
at 59, the court focused its inquiry on the situation at the time of the
offense, found a potential effect on commerce, and held that
"jurisdiction ... is satisfied by showing a realistic probability that
an extortionate transaction will have some effect on interstate
commerce." Id. at 60. Judges Sprecher, Swygert, and Pell dissented,
finding potential effects insufficient to create federal jurisdiction.
[448] In Rindone, a municipal inspector extorted payments from an
electrical contractor by threatening to prosecute code violations and
thus force the contractor out of business. Defendant Rindone argued that
because the FBI supplied the money paid him by the contractor "no
depletion of the payor's assets was possible and thus the nexus with
interstate commerce (was) not sufficient to invoke Hobbs Act
jurisdiction." 631 F.2d at 492. Following Staszcuk, the court focused on
the situation at the time of the offense and held that when Rindone
acted-at the time he demanded payment, before the actual transfer of
money and before the contractor spoke to the FBI-there was a realistic
probability that the contractor's assets would be depleted by the
extortionate transaction. Id. at 493-94.
[449] Under these two cases, relied upon by the majority, the test is
whether the government introduced sufficient evidence, or any evidence
at all, demonstrating the sine qua non of federal Hobbs Act
jurisdiction: "a realistic probability that (the Arab scheme) will have
some (real and not fanciful) effect on interstate commerce." I have
added the words "real and not fanciful" to the Seventh Circuit
formulation in order to emphasize its conformity to the Hobbs Act
jurisdictional requirements that our court has previously announced:
"adequate evidence to establish that there was some effect on commerce,"
United States v. Cerilli, 603 F.2d 415, 424 (3d Cir. 1979), cert.
denied, 444 U.S. 1043, 100 S. Ct. 728, 62 L. Ed. 2d 728 (1980). See
Mazzei, 521 F.2d at 642. I find no such evidence on this record. The
government relies on an apparent jury finding "that the extortionate
scheme, as perceived by defendants, would have affected interstate
commerce.... The hotel was believed to be a multi-million dollar
investment, and substantial amounts of money and goods and services
would have moved in interstate commerce as a result of its
construction." Brief for Appellant at 28 n.10 (emphasis added). The
argument obliquely concedes that the fantasies of federal agents cannot
alone create federal jurisdiction, but then moves without logical
support to a conclusion that belief by a listener can somehow convert a
speaker's fancy into fact. I reject the government's theory that
building castles in the air somehow confers federal jurisdiction on the
ground.*fn30
[450] Without a modicum, or at least a scintilla, to be very generous,
of "some effect on commerce," the door to the federal courthouse simply
cannot be opened. The Supreme Court made this crystal clear in Feola,
when it emphasized that, regardless of the defendant's perception, the
victim was indeed a federal officer and that was the operative fact
investing federal jurisdiction. Thus, the court explained:
[451] The jurisdictional requirement is satisfied by the existence of
facts tying the proscribed conduct to the area of federal concern
delineated by the statute. Federal jurisdiction always exists where the
substantive offense is committed in the manner therein described, that
is, when a federal officer is attacked. Where, however, there is an
unfulfilled agreement to assault, it must be established whether the
agreement, standing alone, constituted a sufficient threat to the safety
of a federal officer so as to give rise to federal jurisdiction. If the
agreement calls for an attack on an individual specifically identified,
either by name or by some unique characteristic, as the putative buyers
in the present case, and that specifically identified individual is in
fact a federal officer, the agreement may be fairly characterized as one
calling for an assault upon a federal officer, even though the parties
were unaware of the victim's actual identity and even though they would
not have agreed to the assault had they known that identity. Where the
object of the intended attack is not identified with sufficient
specificity so as to give rise to the conclusion that had the attack
been carried out the victim would have been a federal officer, it is
impossible to assert that the mere act of agreement to assault poses a
sufficient threat to federal personnel and functions so as to give rise
to federal jurisdiction.
[452] 420 U.S. at 695-96, 95 S. Ct. at 1268-69 (emphasis supplied).
[453] The essential flaw in the majority's opinion is its failure to
appreciate the jurisdictional nature of the commerce element in a Hobbs
Act case. The majority interweaves its jurisdictional argument with the
argument that factual impossibility of completing a substantive offense
does not bar a conviction of conspiracy. They confuse proof of the crime
of conspiracy with the jurisdictional power to punish the crime. The
presence of subject matter jurisdiction is a discrete and primary issue
in each case presented to a federal court, unlike a state court. The
effect on commerce is both jurisdictional and substantive in a Hobbs Act
prosecution, but the two inquiries are separate and distinct. See, e.g.,
Feola, 420 U.S. at 694-96, 95 S. Ct. at 1268-69. The majority have
accepted the government's straw man argument that impossibility is no
defense to crime of conspiracy. Even if I could in the exercise of
judicial patience, tolerate a litigant's aggrandizement of
irrelevancies, I must object to the majority's agreement to join the
government in demolishing the straw man.
[454] I can imagine "the persons of the dialogue," in the form of
Socrates and Crito:
[455] Soc.: Is there federal jurisdiction?
[456] Cr.: Yes, there is federal jurisdiction.
[457] Soc.: How is there federal jurisdiction?
[458] Cr.: There is federal jurisdiction because factual impossibility
of performing a conspiracy is no defense to a charge of conspiracy which
may be brought when there is federal jurisdiction.
[459] In terms of formal logic, how does one analyze this synthesis of
the government's argument, which, nodding like Homer, the majority have
accepted? To borrow from Lord Devlin, "I confess that I approach the
investigation of this legal proposition with a prejudice in favour of
the idea that there may be a flaw in the argument somewhere."*fn31
[460] Two such flaws quickly leap to the surface. Obviously, it is a
non sequitur. More unfortunately, the reasoning "cooks the books," to
use Professor Neil MacCormick's phrase,*fn32 or more popularly, it puts
the bunny in the hat by begging the question in a classic petitio
principii: Instead of proving the conclusion (presence of federal
jurisdiction), the argument assumes it and then argues substantive law:
factual impossibility as a defense to the conspiracy charge. The
fundamental issue of this court's jurisdiction deserves a more serious,
rational analysis.
[461] I conclude with the district court that the evidence did not
establish federal jurisdiction. The Hobbs Act contemplates conspiracies
that have at least a realistic probability of affecting interstate
commerce. A purely hypothetical effect, a fairy tale conjured by the
FBI's answer to the Brothers Grimm, is not "a sufficient threat to
(commerce) so as to give rise to federal jurisdiction." Id. at 695, 95
S. Ct. at 1268. Cf. United States v. Archer, 486 F.2d 670, 681-82 (2d
Cir. 1973) (Friendly, J.) (Travel Act, 18 U.S.C. § 1952, does not apply
when federal officers supply the interstate element and act to ensure
that an interstate element will be present for the purpose of
transforming a local bribery offense into a federal crime).
[462] VI.
[463] Because of the view I take, I do not reach the due process and
manufactured jurisdiction issues addressed by the majority.
[464] VII.
[465] To avoid unduly prolonging an opinion that is already too
lengthy, I will not discuss in detail the majority's treatment of the
"extortion under color of official right" argument, set forth in Part
IIB of the majority opinion, other than to assert my continued
disagreement with both the majority's conclusion and its supporting
reasoning. I adhere to the views set forth in United States v. Cerilli,
603 F.2d 415, 426 (3d Cir. 1979), cert. denied, 444 U.S. 1043, 100 S.
Ct. 728, 62 L. Ed. 2d 728 (1980) (Aldisert, J., dissenting), where I
identified and analyzed the serious error this court committed in United
States v. Kenny, 462 F.2d 1205 (3d Cir.), cert. denied, 409 U.S. 914, 93
S. Ct. 233, 34 L. Ed. 2d 176 (1972), in its revolutionary interpretation
of the Hobbs Act. I introduced my discussion as follows:
[466] It is now my view that our interpretation in Kenny and its
progeny is not supported by the legislative intent underlying the Hobbs
Act nor is it historically accurate. I believe that our failure to
reexamine its rationale has resulted in a perpetuation of erroneous law
not only in this circuit but in the First, Second, Fourth, Seventh,
Eighth and Tenth Circuits which have followed our lead without setting
forth a reasoned elaboration for their conclusions.
[467] 603 F.2d at 427 (footnotes omitted). Moreover, I demonstrated
how Ruff, Federal Prosecution of Local Corruption: A Case Study in the
Making of Law Enforcement Policy, 65 Geo. L.J. 1171 (1977), effectively
demolished the underlying theory that we accepted for our rule when we
improperly accepted the analysis set forth in Stern, Prosecution of
Local Political Corruption Under the Hobbs Act: The Unnecessary
Distinction Between Bribery and Extortion, 3 Seton Hall L.Rev. 1 (1971).
I adhere today to every word I set forth in my Cerilli dissenting
opinion and for this separate reason would affirm the judgments of
acquittal on Count III.
[468] VIII.
[469] To be such a dissentient as I have been today amidst a college
of respected peers, whose views I always respect, and much more often
than not share, is not to present an animadversion of the majority's
approach to this important case. Rather, I have attempted to demonstrate
that this sensitive intersection between morality and positive law
implicates sincerely held but diverse conceptions of justice.
[470] Whatever one's own beliefs, one lives among human beings in a
community or various communities. One's fellows have, and one knows they
have, moral attitudes towards and moral expectations of oneself, which
reflect their moral principles and, perhaps, rules-their "moral code."
It would take exceptional and not necessarily commendable
tough-mindedness to ignore or show indifference to these attitudes and
expectations.*fn33
[471] In admitting to a Humean philosophy, I believe that our moral,
like our legal, life has a necessary social and experiential setting. It
is this which stocks our vast inventory of standards of societal
conduct-legal rules or principles-"in the context of which we can frame
and test new principles of action in new or difficult circumstances."*fn34
[472] The choice or construction of normative principles from this
inventory is what divides our court today. As a full court we have faced
the responsibility of choosing between rival models for, rival patterns
of, law enforcement in our society. We have attempted to do justice
according to law, not justice in the raw. We diverge only on what is
meant by "according to law." Because I agree with the result reached by
Judge Fullam, I would affirm the judgment of acquittal.
Opinion Footnotes [473] *fn1 The government suggests that we
have jurisdiction under 28 U.S.C. § 1291. That section does not create
appellate jurisdiction over appeals by the United States in criminal
cases. DiBella v. United States, 369 U.S. 121, 130, 82 S. Ct. 654, 659,
7 L. Ed. 2d 614 (1962); Government of the Virgin Islands v. Hamilton,
475 F.2d 529 (3d Cir. 1973). However, we have jurisdiction over these
appeals pursuant to the Criminal Appeals Act, 18 U.S.C. § 3731. See
United States v. Wilson, 420 U.S. 332, 95 S. Ct. 1013, 43 L. Ed. 2d 232
(1975); United States v. Schoenhut, 576 F.2d 1010, 1018 & n.7 (3d Cir.),
cert. denied, 439 U.S. 964, 99 S. Ct. 450, 58 L. Ed. 2d 421 (1978).
[474] *fn2 Weinberg was convicted of mail fraud and wire fraud in
1977. At the intercession of the government, he was sentenced to three
years probation in return for his agreement to help in the ABSCAM
investigation. He was paid $3,000 a month by the F.B.I. as of the time
of the trial, had received a total of approximately $140,000 up to that
time, and had also received other fringe benefits.
[475] *fn3 The trials of two other defendants, Louis C. Johanson, a
member of Philadelphia City Council, and Howard L. Criden, a
Philadelphia attorney, who were indicted along with Schwartz and
Jannotti were severed from that of Schwartz and Jannotti. Both Johanson
and Criden were convicted on similar charges in the United States
District Court for the Eastern District of New York, and the government
moved for their dismissal as defendants here.
[476] *fn4 Criden, Johanson, and Mayor Errichetti of Camden, New
Jersey, were instrumental in arranging for four congressmen, including
Philadelphia Congressmen Myers and Lederer, to meet the F.B.I. agents.
At the meetings the congressmen agreed to introduce immigration bills in
return for money, leading to their ultimate indictment and conviction.
[477] *fn5 Some time after Schwartz attended the January 23, 1980
meeting at the Barclay, Shiomos and Kattleman went to Kattleman's
apartment where Criden lay $6,000 on the table as the fee to be paid to
Shiomos and Kattleman. Shiomos assumed this was a portion of Criden's
share of the fee that was paid to Schwartz. A654. Shiomos testified he
gave his $3,000 share to Kattleman. A655.
[478] *fn6 In his post-trial testimony, Criden testified:
Q. All right, now, when you went and saw Mr. Schwartz after Judge
Shiomos had arranged for the interview, did you tell Mr. Schwartz that
the purpose for Mr. Schwartz going there is to be a consultant for these
Arabs or the Arab representatives? A. To some degree, yes. Q. You say to
some degree- A. I told Mr. Schwartz there would be a consulting fee
involved and I explained the project to him and I also told Mr. Schwartz
that I had represented these people and had done business with them for
some period of time and that he would receive a consulting fee. Q. Did
you tell Mr. Schwartz at any time prior to his going to that meeting
that the purpose of the meeting was in a sense to fix him and to arrange
for him to take care of matters in front of City Council? A. No, sir. A3317.
[479] *fn7 There is no evidence that William Green, Philadelphia's
then newly elected mayor, was ever involved in or knew of the
transactions at issue. In fact, Criden described Green as "an All
American boy", A343, and advised Wald that it would be "a critical
mistake" to approach him. A372.
[480] *fn8 In charging the jury on the Hobbs Act count, the court
instructed that it must find that "a natural and probable consequence of
the extortion, the receiving the money, would have been to affect
interstate commerce" and that the Government position was that the
receipt of the payments of $30,000 and $10,000 would have had an effect
on interstate commerce. A1344-45.
[481] *fn9 The Hobbs Act reads in pertinent part as follows:
Whoever in any way or degree obstructs, delays, or affects commerce or
the movement of any article or commodity in commerce, by robbery or
extortion or attempts or conspires so to do ... shall be fined not more
than $10,000 or imprisoned not more than twenty years, or both. 18
U.S.C. § 1951(a). The statute defines "commerce" as commerce within the
District of Columbia, or any Territory or Possession of the United
States; all commerce between any point in a State, Territory,
Possession, or the District of Columbia and any point outside thereof;
all commerce between points within the same State through any place
outside such State; and all other commerce over which the United States
has jurisdiction. 18 U.S.C. § 1951(b)(3).
[482] *fn10 The district court's statement, without citation to the
record, that the evidence "clearly" establishes that the defendants
"made it very clear that the payments would not be necessary," 501 F.
Supp. at 1185, does not fairly represent the only possible construction
of the evidence, and the jury accepted a contrary construction. The
district court's statement is also inconsistent with the court's own
finding that the evidence permitted the inference that the payments were
"in exchange for the defendants' assurances of using their official
positions to pave the way for expeditious completion of the project."
501 F. Supp. at 1184.
[483] *fn11 See discussion of burden of proof in Murchison, The
Entrapment Defense in Federal Courts: Modern Developments, 47 Miss.L.J.
573, 604-06 (1976).
[484] *fn12 Prior to trial, the district court stated that the content
of the defendants' off-camera discussions with Criden was of critical
importance to defendants' entrapment defense. A102. After the close of
the government's case-in-chief, the court granted Criden defense
immunity to permit him to testify about these conversations. A996-1003.
[485] *fn13 Researchers have found it difficult to locate a case in
which the defense of entrapment has been successfully interposed in
prosecutions of public officials for accepting, agreeing to receive, or
soliciting bribes. See Annotation, Entrapment to Commit Bribery or Offer
to Bribe, 69 A.L.R.2d 1397, 1431 (1960). Defendants have cited to no
such case, nor has our independent investigation uncovered one. This is
to be contrasted with the occasional successful entrapment defense by
those persons who have been enticed by public officials to make the
payments. See, e.g., United States v. Klosterman, 248 F.2d 191 (3d Cir.
1957). But see United States v. Bocra, 623 F.2d 281 (3d Cir.), cert.
denied, 449 U.S. 875, 101 S. Ct. 217, 66 L. Ed. 2d 96 (1980).
[486] *fn14 Other courts have recognized that a defendant's post-crime
actions are acceptable as evidence from which an inference of
predisposition can be made. See, e.g., United States v. Jenkins, 480
F.2d 1198, 1200 (5th Cir.), cert. denied, 414 U.S. 913, 94 S. Ct. 256,
38 L. Ed. 2d 151 (1973).
[487] *fn15 In view of the jury's verdict, we need not consider the
government's contention that the evidence of government inducement was
insufficient to warrant submission of the entrapment issue to the jury.
[488] *fn16 In Twigg, we distinguished Hampton, where the convictions
were upheld, on the ground that Hampton was "concerned with the sale of
an illegal drug, a much more fleeting and elusive crime to detect than
the operation of (the) illicit drug laboratory (involved in Twigg)." We
recognized that in "such a situation the practicalities of combating
drug distribution may require more extreme methods of investigation,
including the supply of ingredients which the drug ring needs." 588 F.2d
at 378 (footnote omitted).
[489] *fn17 Judges Adams, Hunter and Garth agree that United States v.
Twigg, 588 F.2d 373 (3d Cir. 1978), is distinguishable from the present
case on its facts. They would go one step further, however, and directly
overrule the Twigg decision. They believe that United States v. West,
511 F.2d 1083 (3d Cir. 1975), relied on by the majority in Twigg, the
district court below, and the appellees here, was implicitly reversed by
Hampton v. United States, 425 U.S. 484, 96 S. Ct. 1646, 48 L. Ed. 2d 113
(1976), and that unless further guidance is given in this area, district
courts, in a faithful attempt to apply Twigg and West, will continue to
reach results that cannot be reconciled with the teaching of the Supreme
Court in Hampton. In this day of heightened criminal activity, the
federal judiciary must be cautious not to exercise a "veto"-especially,
as in this case, a constitutional veto-"over law enforcement practices
of which it (does) not approve." United States v. Russell, 411 U.S. 423,
435, 93 S. Ct. 1637, 1644, 36 L. Ed. 2d 366 (1973).
[490] *fn18 When Archer came before the Second Circuit a second time,
Judge Friendly, the author of both opinions, stated that the ground for
the decision in Archer "was that there had been no sufficiently
meaningful use of (interstate telephone) facilities in connection with
the essentially local crime committed by Archer ...." Archer v.
Commissioner of Correction, 646 F.2d 44, 45 (2d Cir. 1981).
[491] *fn19 In light of our holding, we express no opinion on whether
a finding of manufactured jurisdiction could support a judgment of
acquittal, as ordered by the district court in this case, or can be used
only as the basis for dismissal of the indictment for lack of
jurisdiction, which was the procedure followed in Archer.
_____________________________________________________________
Dissent Footnotes
[492] *fn1 Olmstead v. United States, 277 U.S. 438, 470, 48 S. Ct.
564, 575, 72 L. Ed. 944 (1928) (Holmes, J., dissenting).
[493] *fn2 A most infamous agent provocateur was Azeff, "to whom the
enduring reputation of the Ochrana owes its deeper shades of infamy."
Donnelly, Judicial Control of Informants, Spies, Stool Pigeons, and
Agent Provocateurs, 60 Yale L.J. 1091, 1092 n.8 (1960) (quoting Rowan,
The Story of Secret Service 374 (1937)).
[494] *fn3 Weinberg Cross Examination, A254.
[495] *fn4 An analogy by Washington, D.C., lawyer William Hundley
illustrates my point:
"It's one thing to take a street where hookers work, dress a policewoman
up as a hooker and put her out there, ..." It's something else entirely,
... "to take Bo Derek and throw her naked into the Notre Dame locker
room." Quoted in Some Questions of Ethics, Newsweek, Feb. 18, 1980, at 32.
[496] *fn5 Chevigny, A Rejoinder, The Nation, February 23, 1980, at
205. Professor Chevigny also expressed concern about the government's
power to select its targets:
As stories have emerged over the past fifteen years about the practices
of law-enforcement agencies in offering opportunities for crime (whether
they amount to entrapment in the technical sense or not), a chief
concern has been that the focus was on "political" people. That used to
be a code word for Catholic pacifists, the Vietnam Veterans Against the
War, Black Panthers and assorted others who were convicted or acquitted,
according to the vicissitudes of the venue and the criminal law, for
crimes against the state in which police inducements were involved. For
better or worse, the code word now extends to Republican and Democratic
politicians. But the danger remains the same: the power to offer a
temptation to crime is the power to decide who shall be tempted. It can
be and often has been used as a way for the Government to eliminate its
enemies, or for one faction in Government to get rid of another. Put
simply, the question raised by actions like Abscam is: Can we leave it
to the investigators to decide which politician to tempt? Id. at 204-05.
[497] *fn6 Describing another era, the historian Sir Erskine May
eloquently declared:
Nothing is more revolting to Englishmen than the espionage which forms
part of the administrative system of continental despotisms. It haunts
men like an evil genius, chills their gayety, restrains their wit, casts
a shadow over their friendships, and blights their domestic hearth. The
freedom of a country may be measured by its immunity from this baleful
agency. Rulers who distrust their own people must govern in a spirit of
absolutism; and suspected subjects will be ever sensible of their
bondage. 2 E. May, Constitutional History of England 275 (1863).
[498] *fn7 See e.g., Hollinger v. Wagner Mining Equip. Co., 667 F.2d
402 (3d Cir., 1981) (Aldisert, J., dissenting); Edward J. Sweeney &
Sons, Inc. v. Texaco, Inc., 637 F.2d 105 (3d Cir. 1980), cert. denied,
451 U.S. 911, 101 S. Ct. 1981, 68 L. Ed. 2d 300 (1981). In Brokers Title
Co. v. St. Paul Fire & Marine Ins. Co., 610 F.2d 1174 (3d Cir. 1979), we
stated:
Many sins in the law have at times been swept under a jurisprudential
rug in the guise of fact finding, but neither justice nor reason,
neither public policy nor logic, compels us to do so here. When
questions of law dominate uncontroverted material facts, resort to fact
finding from a congeries of irrelevant evidence is unnecessary. Id. at 1177.
[499] *fn8 The expression is that of Professor Bernard J. Ward of the
University of Texas. Ward, "The Judges of the Third Article,"
unpublished luncheon address, Judges' Luncheon, 36th Annual Judicial
Conference, Third Judicial Circuit of the United States, Pittsburgh,
Pa., October 15, 1973.
[500] *fn9 J. Tyndall, Fragments of Science in Science and Man.
[501] *fn10 Montesquieu, De l'Espirit des Lois (1748).
Dissenting in Olmstead v. United States, 277 U.S. 438, 48 S. Ct. 564, 72
L. Ed. 944 (1928), Justice Brandeis stated: If the Government becomes a
lawbreaker, it breeds contempt for law; it invites every man to become a
law unto himself; it invites anarchy. To declare that in the
administration of the criminal law the end justifies the means-to
declare that the Government may commit crimes in order to secure the
conviction of a private criminal-would bring terrible retribution. Id.
at 485, 48 S. Ct. at 575 (Brandeis, J., dissenting).
[502] *fn11 This court has held that, as a matter of fundamental
fairness, where the government's involvement in criminal activities
attains a demonstrable level of outrageousness, prosecution for the
crime will be barred even if the defendant is shown to have been
predisposed. United States v. Twigg, 588 F.2d 373, 380-82 (3d Cir. 1978).
[503] *fn12 Hynes v. New York Cent. R. Co., 231 N.Y. 229, 235, 131
N.E. 898, 900 (1921) (Cardozo, J.).
[504] *fn13 Gluck v. Baltimore, 81 Md. 315, 325, 32 A. 515, 517 (1895).
[505] *fn14 Croker v. Boeing Co., 662 F.2d 975, 1002 (3d Cir. 1981)
(in banc) (Aldisert, J., concurring and dissenting) (quoting Jones, An
Invitation to Jurisprudence, 74 Colum.L.Rev. 1023, 1030 (1974)).
[506] *fn15 Pound, Mechanical Jurisprudence, 8 Colum.L.Rev. 605, 605
(1908).
[507] *fn16 Schaefer, Precedent and Policy, 34 U.Chi.L.Rev. 3, 23 (1966).
[508] *fn17 Edmund Burke, Letter to Thomas Burgh, New Year's Day, 1780.
[509] *fn18 This assumes that the government participation in the
crime is not so extensive and outrageous as to constitute a violation of
fundamental fairness. Twigg, 588 F.2d at 380-82.
[510] *fn19 The opinion of the court below summarized applicable
inducement concepts as follows:
Under the general label "inducement" the reported decisions have
included such diverse elements as suggesting that the crime be
committed, providing some or all of the instrumentalities or facilities
needed to complete the crime, actively participating in the commission
of the crime, providing varying degrees of incentives, providing varying
degrees of persuasion or even coercion, or a combination of these
ingredients. United States v. Jannotti, 501 F. Supp. 1182, 1190
(E.D.Pa.1980). I agree with Judge Fullam that some or all of these were
established by the evidence in this case.
[511] *fn20 The ABSCAM show was to play only 10 days in Philadelphia.
The operation had to move to another location if fish were not caught.
See the record in United States v. Criden, 633 F.2d 346 (3d Cir. 1980),
cert. denied sub nom. Schaffer v. United States, 449 U.S. 1113, 101 S.
Ct. 924, 66 L. Ed. 2d 842 (1981).
[512] *fn21 A. Solzhenitsyn, The Gulag Archipelago 146 (1973).
[513] *fn22 The majority argue as to Schwartz:
It may be that the district court, aware of similar representations with
regard to the "Arab mind" which were made to other ABSCAM participants,
interpolated them as to Schwartz. Whatever the explanation, since this
was the "most important" factor to show that the appeal to civic duty
was too overwhelming an inducement for any public official to resist,
once this factor is negated, the house of cards built upon it collapses.
Majority Opinion at 603. The majority contend that, as to Jannotti:
(T)here is no question that a reference to the "Arab mind" was made to
him, and that Wald also represented that this "is the method of business
that these people are used to, and that is how they conduct
business...." A860.... Whether these statements can be construed as a
representation that only if Jannotti accepted the money would the hotel
come to Philadelphia is somewhat questionable. Such a conclusion is even
more equivocal in light of the following colloquy which took place
before the reference to the "Arab mind": JANNOTTI: Who could refuse a
project like that? WALD: Nobody could, that's my point, alright, but
I've been told the City of Philadelphia is where this, ah, this
construction project is going. I mean this is where he is going to be.
There is where he wants it.... A852 (emphasis added). Later in the
meeting Wald reiterated that "Philadelphia has already been sold, to the
man." A876. See also A864, A880. Thus, even as to Jannotti, at most the
evidence presents the basis for differing arguments to the jury as to
the interpretation to be placed on the conversations. Id. at 603. The
majority's argument as to Jannotti goes to whether the offense of
extortion was made out, an issue not controverted in entrapment. But
their contention does not refute the applicability of this evidence to
predisposition. Simply stated, Jannotti's response, no matter how
interpreted, has relevance to the issue of his predisposition, a
relevance congruent with the "Arab mind" scenario to which he had been
exposed.
[514] *fn23 Because the quoted declarations were evidence of opinion
and not of reputation, I need not reach the question of whether a
co-conspirator's statements of reputation would be admissible to prove
character. I note, however, that Congress and the drafters of the
Federal Rules of Evidence were careful to discriminate between
reputation and opinion evidence. Rule 803(21) provides that evidence of
reputation is not excluded by the hearsay rule, but there is no hearsay
exception for evidence of opinion. Opinion evidence is permitted only by
Rule 405, which is limited to testimony. Moreover, there are important
functional distinctions between reputation and opinion. Hearsay evidence
of a person's reputation can be rebutted without cross-examining the
declarant, merely by introducing reputation witnesses in rebuttal. A
statement of opinion can be challenged or rebutted only by
cross-examination.
The Fifth Circuit, sitting in banc, recently approached this problem in
another way. In United States v. Webster, 649 F.2d 346 (5th Cir. 1981),
the court overruled a long line of local precedent and held that hearsay
evidence is never admissible to prove predisposition. The court had
"little trouble rejecting the government's argument that such statements
are admissible under the character/reputation provisions of the Federal
Rules of Evidence, see Fed.R.Evid. 404(a)(1), 405, 803," 649 F.2d at 350
(footnotes omitted), and held that predisposition is not a character
trait but a state of mind and thus that the "character/reputation
provisions" do not apply.
[515] *fn24 See generally Tribe, Triangulating Hearsay, 87 Harv.L.Rev.
957, 958-60 (1974).
[516] *fn25 W. Sahakian & M. Sahakian, Ideas of the Great Philosophers
16 (1966).
[517] *fn26 "Common sense" as used here is not a makeweight. In this
adjudication it is meant to be what judges perceive to be contemporary
standards of received values.
[518] *fn27 The Hobbs Act reads in pertinent part as follows:
Whoever in any way or degree obstructs, delays, or affects commerce or
the movement of any article or commodity in commerce, by robbery or
extortion or attempts or conspires so to do ... shall be fined not more
than $10,000 or imprisoned not more than twenty years, or both. 18
U.S.C. § 1951(a). The statute defines "commerce" as commerce within the
District of Columbia, or any Territory or Possession of the United
States; all commerce between any point in a State, Territory,
Possession, or the District of Columbia and any point outside thereof;
all commerce between points within the same State through any place
outside such State; and all other commerce over which the United States
has jurisdiction. Id. § 1951(b)(3).
[519] *fn28 The majority fault the defendants for not citing a "policy
reason for us to accept their restrictive view of Congress'
constitutional power to legislate as to conspiracies which pose a threat
to interstate commerce." Majority opinion at 594. There are, of course,
several answers to this. First, it is the burden of the prosecution to
prove jurisdiction; not the burden of the defense to disprove it.
Second, the issue is not a question of expansive or restrictive views of
Congress' constitutional powers. Rather, giving Congress the maximum of
constitutional power, can there be a vesting of federal jurisdiction
without proof by the government of one iota of actual or potential
effect on interstate commerce? Third, the "policy" sought by the
majority is inherent in the Commerce Clause itself, which creates the
legislative power; and that clause at its most broad interpretation, has
never been construed to extend federal power over effects on commerce
that are merely hypothetical, fanciful, or imaginary. In sum, giving
Congress maximum constitutional power to interpret the interstate
commerce clause does not mean giving Congress the power to abolish the
clause.
[520] *fn29 Because United States v. Rose, 590 F.2d 232 (7th Cir.
1978), cert. denied, 442 U.S. 929, 99 S. Ct. 2859, 61 L. Ed. 2d 297
(1979), does not consider an issue of federal jurisdiction, it is
irrelevant.
[521] *fn30 The government synthesized its contention at the first
oral argument before the panel:
MR. FIORAVANTI: If the listener to the fairy tale accepts the facts as
true and undertakes to become involved in a criminal conspiracy relying
on those facts, then his agreement involved the violation of federal law
even though the facts turn out to be a misperception. Because
impossibility is no defense. JUDGE ALDISERT: How does this believing
have an effect on interstate commerce? MR. FIORAVANTI: It does not, in
fact, Your Honor. Transcript of oral argument at 31-32.
[522] *fn31 St. John Shipping Corp. v. Joseph Rank, (1957) 1 Q.B. 267,
282.
[523] *fn32 N. MacCormick, Legal Reasoning and Legal Theory 72 (1978).
[524] *fn33 N. MacCormick, Legal Reasoning and Legal Theory 274 (1978).
[525] *fn34 Id. at 124.
Taylor
I have represented clients in over a dozen civil trials, and yes, there are
some bad judges. However, the vast majority of judges are smart, fair, and
accomodating in their search for justice.
Dane
"Ken Smith" <for...@it.com> wrote in message news:440E4332...@it.com...
> Bob wrote:
> > Ken,
> >
> > First, you are the one who should write the book. God, you are a
> > writer for sure. So now I needn't ask what my book doesn't have; I can
> > see it from your post.
>
> You need to address the problem from a national perspective, as it is
> a national problem.
>
> > Lest The Florida Bar return on a bogus persecution under the UPL
> > banner, gentlemen, please be informed I am not a licensed member of any
> > bar, surely no trial attorney. I am simply a non-lawyer who has a big
> > beef with the phoney Florida Bar, and Ken you wax far more eloquenty
> > than I could ever hope to, though I'm going to try.
> >
> > Guys, this is such a great thread to quote that please tell me, anyone,
> > if you don't want to be quoted.
>
> I would prefer not to be quoted in this thread, since my off-the-cuff
> (and usually unedited) prose really isn't up to professional standards.
> Besides, if you are willing to trudge through law review articles,
> there are plenty of judges who have publicly criticized the system.
Self-Regulation of Judicial Misconduct Could be Mis-Regulation, 89 Michigan
Law Review 609 (1990). (Code A90N)
http://anthonydamato.law.northwestern.edu/Papers-1/a90n-jud-mis.htm.html
2001
OPERATIONS OF FEDERAL
JUDICIAL MISCONDUCT STATUTES
HEARING
BEFORE THE
SUBCOMMITTEE ON COURTS, THE INTERNET,
AND INTELLECTUAL PROPERTY
http://commdocs.house.gov/committees/judiciary/hju76383.000/hju76383_0f.htm
Judicial Misconduct Procedures Not Visible Enough,
Pitt Law Professor Tells House Judiciary Subcommittee
http://www.umc.pitt.edu/media/pcc011203/judiciary.html
Judicial misconduct
Georgetown Journal of Legal Ethics, The, Summer 2001 by Brauer, Alex,
Loh, Tyng
http://www.findarticles.com/p/articles/mi_qa3975/is_200107/ai_n8956877
"Judicial Misconduct and Discipline"
STATEMENT of
Roger Pilon, Ph.D., J.D.
Senior Fellow and Director
Center for Constitutional Studies
Cato Institute
before the
Subcommittee on Courts and Intellectual Property
Committee on the Judiciary
United States House of Representatives
May 15, 1997
http://www.cato.org/testimony/ct-rp051597.html
The 'Lectric Law Library's Legal Lexicon On
* Judicial Misconduct *
http://www.lectlaw.com/def/j028.htm
Judicial ethics From Cornell Law School
http://www.law.cornell.edu/wex/index.php/Judicial_ethics
2003 REVIEW OF FEDERAL JUDGE MISCONDUCT AND 28 U.S.C 372( c) COMPLAINTS
(PETITION)
http://www.petitiononline.com/jn372/petition.html
CAN JUDGES "JUDGE" THEMSELVES AND REACH FAIR CONCLUSIONS?
http://www.redressinc.org/JudicialMisconduct.html
Citizens for Legal Responsibility
FBI involvement in covering up Judicial Misconduct
http://www.clr.org/FBI-involvement.html
Self-Regulation of Judicial Misconduct Could be Mis-Regulation ...
http://anthonydamato.law.northwestern.edu/Adobefiles/A90n.pdf
CODE OF JUDICIAL CONDUCT
FOR THE STATE OF FLORIDA
http://www.ablelegalforms.com/canons/judicialcode.html
THE LINE BETWEEN LEGAL ERROR AND JUDICIAL MISCONDUCT:
http://www.hofstra.edu/PDF/law_lawrev_Gray_vol32no4.pdf
Judicial Misconduct: A Cross-National Comparison (Univ. of Florida)
http://www.upf.com/book.asp?id=VOLCAS96
Tech Law Journal
VI. Judicial Misconduct
http://www.techlawjournal.com/courts/dojvmsft2a/20010628opVI.asp
Criminal Justice Ethics Sources on the Internet
http://www.llrx.com/features/criminaljusticeethics.htm
Georgetown Journal of Legal Ethics
http://www.law.georgetown.edu/journals/ethics/title.html
SJ Spero & Associates, P.C. in the news
Legal Ethics Research - Getting Started
http://www.usfca.edu/law_library/ethre.html
The Twin Faces of Judicial Corruption: Extortion and Bribery
I Ayres - DENVER UNIVERSITY LAW REVIEW, 1997 -
http://scholar.google.com/url?sa=U&q=http://islandia.law.yale.edu/ayers/pdf/
denver.pdf
Dealing with Incompetent Counsel: The Trial Judge's Role
William W. Schwarzer
Harvard Law Review, Vol. 93, No. 4 (Feb., 1980) , pp. 633-669
Professional Negligence and the Quality of Legal Services. An Economic
Perspective
C. G. Veljanovski, C. J. Whelan
Modern Law Review, Vol. 46, No. 6 (Nov., 1983) , pp. 700-718
Power and Responsibility in the Attorney-Client Relation
Lester J. Mazor
Stanford Law Review, Vol. 20, No. 6 (Jun., 1968) , pp. 1120-1139
Stump v. Sparkman: The Doctrine of Judicial Impunity
Irene Merker Rosenberg
Virginia Law Review, Vol. 64, No. 6 (Oct., 1978) , pp. 833-858
Is the Proposed Virginia Bar Act Unconstitutional on the Ground That It
Confers Judicial Powers upon the Proposed Council?
Christopher B. Garnett
Virginia Law Register, New Series, Vol. 13, No. 4 (Aug., 1927) , pp. 210-221
JUDICIAL ATTITUDES TOWARD
CONFRONTING ATTORNEY MISCONDUCT:
A VIEW FROM THE REPORTED DECISIONS
http://www.hofstra.edu/PDF/law_lawrev_mcmorrow_vol32no4.pdf
Regulation of Judicial Misconduct from Late Antiquity to the Early Middle
Ages
M. H. Hoeflich
Law and History Review, Vol. 2, No. 1 (Spring, 1984) , pp. 79-104
The Chandler Incident and Problems of Judicial Removal
Robert R. Davis, Jr.
Stanford Law Review, Vol. 19, No. 2 (Jan., 1967) , pp. 448-467
Harmless Error, Prosecutorial Misconduct, and Due Process: There's More to
Due Process than the Bottom Line
Michael T. Fisher
Columbia Law Review, Vol. 88, No. 6 (Oct., 1988) , pp. 1298-1324
Managerial Judges: The Potential Costs
Judith Resnik
Public Administration Review, Vol. 45, Special Issue: Law and Public Affairs
(Nov., 1985) , pp. 686-690
One Bite at the Apple: Reversals of Convictions Tainted by Prosecutorial
Misconduct and the Ban on Double Jeopardy
Rick A. Bierschbach
Michigan Law Review, Vol. 94, No. 5 (Mar., 1996) , pp. 1346-1374
A Silly Question? Court Sanctions Against Defence Counsel for Trial
Misconduct
http://scholar.google.com/url?sa=U&q=http://www.springerlink.com/index/U5434
4935264X960.pdf
PROSECUTORIAL MISCONDUCT AND CONSTITUTIONAL REMEDIES
http://scholar.google.com/url?sa=U&q=http://law.wustl.edu/WULQ/77-3/773-713.
pdf
THE ATTORNEY AS GATEKEEPER:
http://scholar.google.com/url?sa=U&q=http://www.columbialawreview.org/pdf/Co
ffe.pdf
Why Not Fine Attorneys?: An Economic Approach to Lawyer Disciplinary
Sanctions
Stephen G. Bene
Stanford Law Review, Vol. 43, No. 4 (Apr., 1991) , pp. 907-941
Ethics in Practice
http://scholar.google.com/url?sa=U&q=http://www.oup.com/pdf/019512961X_01.pd
f
The Reach of Federal Action over the Profession of Law
Elliott E. Cheatham
Stanford Law Review, Vol. 18, No. 7 (Jun., 1966) , pp. 1288-1298
Stupid Lawyer Tricks: An Essay on Discovery Abuse
Charles Yablon
Columbia Law Review, Vol. 96, No. 6 (Oct., 1996) , pp. 1618-1644
The Problem of Reforming Judicial Administration in America: IV. The Problem
of Reforming the Bar
Henry Upson Sims
Virginia Law Review, Vol. 4, No. 8 (May, 1917) , pp. 612-633
In Defense of the Constitution's Judicial Impeachment Standard
Melissa H. Maxman
Michigan Law Review, Vol. 86, No. 2 (Nov., 1987) , pp. 420-463
THE RELATIONSHIP BETWEEN CIVIL RULE 11 AND LAWYER DISCIPLINE: AN EMPIRICAL
ANALYSIS
http://scholar.google.com/url?sa=U&q=http://llr.lls.edu/volumes/v37-issue3/d
ocuments/joy.pdf.pdf
The Civil Liability of Judges in the United States
Peter H. Schuck
American Journal of Comparative Law, Vol. 37, No. 4 (Autumn, 1989) , pp.
655-673
Thinking about Courts: Toward and Beyond a Jurisprudence of Judicial
Competence
Ralph Cavanagh, Austin Sarat
Law & Society Review, Vol. 14, No. 2 (Winter, 1980) , pp. 371-420
Judicial Qualification Commission Cases
Since October 20, 2000, this page has been available on-line to quickly
distribute to news media and others any documents filed with the Florida
Supreme Court in Judicial Qualification Commission cases involving alleged
misconduct by Florida state judges or involuntary retirement of a judge due
to serious illness. It does not include documents filed before this date.
More information on the JQC and how to file complaints against Florida state
judges is available at the end of this document.
http://www.floridasupremecourt.org/pub_info/jqc.shtml
Thoughts on the Law Addressing Bad Federal Judges:
Self-Policing Isn't Working, But Is There a Good Alternative?
By JOHN W. DEAN
http://writ.news.findlaw.com/dean/20040813.html
South Dakota Judicial Accountability Movement
Mainstream media outlets (ABC, Seattle P.I.) are reporting today on a group
in South Dakota pushing for a ballot referendum that would strip South
Dakota judges of their immunity from suit for actions taken in their
capacity as judges.
http://www.pointoflaw.com/archives/001847.php
The Culture of Shielding Judicial Colleagues
by Doug Schafer
2004 Candidate for Washington State Supreme Court
http://www.doug4justice.org/Shielding/LaundryList.html
Can The Judicial Reform Act Be Challenged?
http://www.caught.net/calif/challeng.htm
Thoughts on the Law Addressing Bad Federal Judges:
Self-Policing Isn't Working, But Is There a Good Alternative?
FindLaw's Writ Legal Commentary
Friday, August 13, 2004
John W. Dean
http://www.communityrights.org/Newsroom/crcInTheNews/FL8-13-04.asp
Justice misconduct news clips and article annotations: Volume III
Preface: This rich source of information relating to judicial misconduct
comes from the Brennan Center For Justice at the NYU School of Law. As an
annotated bibliography, it highlights media and journal reviews that are
certainly worth thumbing through. In its entirety, readers will find all
sorts of troubling clips along with references dating back to 2000. It's not
an exhaustive compilation but a great review. We had to separate it into 3
volumes because of its girth. If you are looking for a particular reference,
have a keyword, or have only the judge's name, use the Control F command.
Remember, there are 3 volumes.
http://www.lawyerethics.org/mt/archives/001300.html
The Toll of Misconduct
What follows is a short sampling of major felony cases discussed in MEAN
JUSTICE in which prosecutorial and investigative misconduct or negligence
led to injustice, false arrest or wrongful conviction. Cases in bold type
occurred in Kern County, California, the setting for MEAN JUSTICE. A much
longer, more complete list is contained in MEAN JUSTICE.
http://www.edwardhumes.com/articles/mean_toll.shtml
BLIND OVER-SIGHT?:
Complaints against attorneys are exploding, but critics say the disciplinary
system is slow and protects the profession. Now, the Bar has begun to review
how it protects the public from lawyer misconduct.
Miami Daily Business Review - November 3rd, 2003
http://www.halt.org/about_halt/in_the_news/blind_oversight.php
TEN REMEDIES YOU MUST UNDERSTANDIn this chapter we review ten legal remedies
[§9.05] available for vio-lations of the law governing lawyers
RED FLAGS YOU CANNOT IGNORE
10 remedies of law you must understand governing lawyers
http://d2d.ali-aba.org/_files/thumbs/components/BK35-CH08_thumb.pdf
Lawyer's Criticism of Judge on "Secure"
Internet Site Lands Him in Ethical Thicket
rian F. Labovick was shocked to receive a letter from Palm Beach Circuit
Judge Diana Lewis, saying that she'd received a copy of a critical note
about her that the Jupiter attorney had posted on a confidential Internet
forum.
http://www.judicialaccountability.org/articles/lawyerrantnotprotected.htm
Playing by the rules: Violations of ethics rules as evidence of legal
malpractice
http://www.findarticles.com/p/articles/mi_qa3968/is_200107/ai_n8957823
Time for a Whupping:
Across the Country, Attorney Discipline Systems Disgrace the Profession
Legal Times - August 18th, 2003
http://www.halt.org/about_halt/in_the_news/whupping.php
Out of Order
Arrogance, Corruption and Incompetence on the Bench
http://www.barefootsworld.net/outoforder.html
HALT Spurs Nationwide Attorney Discipline Reforms
http://www.halt.org/the_legal_reformer/2004/pdf/TLR-Fall04.pdf
As we approach Law Day, bar associations across the nation will be heard
congratulating themselves on all they do to promote justice and protect the
public.
(see our post) At this weblog, "we" think such self-aggrandizement should
be
avoided in favor of a bit of soul-searching. Most bar groups spend much of
their time acting like guilds -- promoting the interests of their members,
and
"protecting" the public from competition, information, innovation and
choice. Maybe
Law Day 2005 (May 1st) can be an occasion to re-align our priorities and
become
public service organizations, improving the profession for the sake of our
clients,
the justice system and the entire public.
http://blogs.law.harvard.edu/ethicalesq/stories/storyReader$3744
Lawyer Discipline
Mission Statement
2005-2006 Committee
Mission Statement of the Standing Committee on Lawyer Discipline
http://www.vsb.org/committees/standing/cold.html
A new framework for law firm discipline
Georgetown Journal of Legal Ethics, The, Winter 2003 by Chambliss,
Elizabeth, Wilkins, David B
http://www.findarticles.com/p/articles/mi_qa3975/is_200301/ai_n9193333
LegalEthics dot com
Sustained Objection: Lawyer discipline still inadequate
by David Giacalone (June 22, 2003, The Sunday Gazette [Schenectady,
NY])
a.. WANTED: Client Champion to reform NYS lawyer disciplinary
system. Experience fighting entrenched interests, deep-pockets and specious
arguments necessary. Prominence in legal profession and government
preferred. No salary, but excellent opportunity to create legacy or advance
political career. Phone: (518) 4CLIENT.
http://blogs.law.harvard.edu/ethicalesq/stories/storyReader$71
FROM BARBARA WARTELLE WALL: LEGAL WATCH
PRIVILEGE PROTECTS REPORT ON ATTORNEY DISCIPLINE HEARING
http://www.gannett.com/go/newswatch/2002/march/nw0315-8.htm
The Bar's Dirty Little Not-So-S
Carolyn Elefant writes: This month, the ABA Journal picks up
the issue of whether bar commissions investigate and sanction solos and
small law firms more frequently than their large firm colleagues in Picking
on The Little Guy: Perception Lingers that Discipline Falls Hardest on Small
Firms by Mark Hansen. Though the author collects a variety of views on the
the disparate disclipline issue, ultimately, the article tows the party line
that (1) evidence of disparate discipline is inconclusive; (2) to the extent
that disparity exists, it can be explained by the fact that solo and small
firm practice handles a greater client volume, thus, making them more likely
to be targets of client complaints and (3) even if bias does exist, it's
unintentional. Finally, the article dispenses the usual pap for solos and
small firm lawyers: keep an eye on deadlines, put records and writing, find
a mentor and take advantage of the law practice management courses offered
by the bar. Enough!
Though hardly a scientific study, over the past few months, we
at MyShingle.com have monitored cases involving attorney misconduct and
here's what we've observed: (1) there are blatant, almost unconscionable
examples of situations where bar associations have overlooked misconduct by
large firms while pursued small firms with an unexplained vengeance; (2)
large firms and small firms alike commit errors and take advantage of
clients - but large firm clients sue their former lawyers for breach of
fiduciary duty or malpractice while small firm clients, for want of
resources, file bar complaints; (3) even where small firms are sued and pay
compensation for their wrongs, judges still often refer them to the bar for
additional and unnecessary disciplinary action and (4) because clients incur
no cost whatsoever to file a complaint, many do so over minor issues which
may at best constitute a technical violation of the Code of Professional
Responsibility but would not be worth pursuing if there were some cost, even
a de minimus amount.
http://myshingle.wynn.com/article.pl?sid=03/02/28/1529232
The Reason for Victims of The System
In January, 1994 my husband and I retained two attorneys, Ronald C.
Kopplow and Marc Cooper, to pursue a malpractice claim against our former
certified public accountants, the firm of Morrison, Brown, Argiz & Co.
Messrs. Kopplow and Cooper committed gross negligence and severe ethical
violations in handling the malpractice claim, and in so doing, caused us
financial ruin, including the loss of our successful company of many years,
Baron's Stores, Inc. To recover for their gross negligence and civil
violations against us, a legal malpractice lawsuit was filed on our behalf
against Messrs. Kopplow and Cooper on September 7, 1999 in Dade County,
Florida.
http://www.victimsofthesystem.org/myreason.html
Comment: Limits on the Privity and Assignment of Legal Malpractice
Claims
by
Tom W. Bell
59 U. Chi. L. Rev. 1533 (1992)
http://www.tomwbell.com/writings/Comment.html
Legal Malpractice by Insurance Defense Counsel
Who Can be Sued, Who Can Sue, and For What
http://brcorp.com/newsletter/archives/article024.asp
Legal Malpractice Pitfalls and Solutions
http://www.converium.com/2071.asp
DiscriminFloridates Against Shttp://www.florida
RULE 4-1.8 CONFLICT OF INTEREST; PROHIBITED AND OTHER TRANSACTIONS
The Supreme Court of Florida recently made substantial additions to
Rule of Professional Conduct 4-1.8. Section (j) of Rule 4-1.8 now contains a
Statement of Insured Client's Rights for attorneys defending insureds to
provide to their clients. The Rule changes are posted below with new
sections underlined.
(a) Business Transactions With or Acquiring Interest Adverse to
Client. A lawyer shall not enter into a business transaction with a client
or knowingly acquire an ownership, possessory, security, or other pecuniary
interest adverse to a client, except a lien granted by law to secure a
lawyer's fee or expenses, unless:
(1) the transaction and terms on which the lawyer acquires the
interest are fair and reasonable to the client and are fully disclosed and
transmitted in writing to the client in a manner that can be reasonably
understood by the client;
(2) the client is given a reasonable opportunity to seek the advice
of independent counsel in the transaction; and
(3) the client http://www.bbplaw.com/publications/rule4-1.8.htm
GETTING TOO CLOSE TO A CLOSELY HELD CORPORATION
by
Bruce T. Eisenhut, Assistant Bar Counsel
The representation of closely held corporations presents a number of
complex conflict of interest issues. Conflicts that arise when attorneys for
small businesses intertwine their own personal or financial interests with
the prospects of the business by owning stock (either as fees or an
investment) or become involved in management. In such situations, the
potential damage to the client, to the lawyer and to the legal profession,
often outweighs the potential for personal or pecuniary gain.
http://www.mass.gov/obcbbo/close.htm
Page 1
May 1, 1998Governor Pete WilsonState CapitolSacramento, CA
95814re:State Bar Funding CrisisDear Governor Wilson:As the former State Bar
Discipline Monitor (1987-1992) and director of the Center for PublicInterest
Law (CPIL) since 1980, I am aware of the historical and current problems of
the State Bar.Many of them stem from its governing board's composition; its
status as an "integrated" or "unified"bar (part occupational licensing
agency exercising the police powers of the state, and part tradeassociation
devoted to promoting and protecting the interests of the legal profession);
an entrenchedexecutive staff which has only recently turned over and been
replaced; its apparent unwillingnessto interpret strictly the U.S. Supreme C
ourt's mandate in Keller v. State Bar, 496 U.S. 1 (1990); andits refusal to
permit the legal profession to be regulated like other professions in the
State ofCaliforniahttp://www.cpil.org/download/State_Bar_Funding_Crisis.pdf.
Conflicts of interests and legal malpractice
http://www.nebar.com/pdfs/insurance/GSDOCS_1313865_1.pdf.
Legal Ethics Links
http://www.bucklin.org/Research/ethics_law_links.htm
TANGLED LOYALTIES: CONFLICT OF INTEREST IN LEGAL PRACTICE, by Susan P.
Shapiro. Ann Arbor: University of Michigan Press, 2002. 512pp.
http://www.bsos.umd.edu/gvpt/lpbr/subpages/reviews/shapiro105.htm
University of Florida Law Library on Legal Ethics
Legal Ethics
http://library.law.miami.edu/ethicsguide.html
GOODMAN'S GUIDE
to Current Ethical Issues
FINANCIAL RESPONSIBILITY BY-LAW ADOPTED
http://www.goodmanadvocacy.com/guide.html
Researching Professional Responsibility
Professor Barbara Glesner Fines
University of Missouri - Kansas City School of Law
http://www.law.umkc.edu/faculty/profiles/glesnerfines/bgf-13.htm
Florida Bar-CConflicts of interest
http://www3.flabar.org/TFB/TFBETOpin.nsf/ca2dcdaa853ef7b885256728004f87db/27
0d781af16bb2a285256b2f006cc790?OpenDocument
January 14, 2000
Honorable Major B. Harding
Chief Justice
Supreme Court of Florida
500 South Duval Street
Tallahassee, Florida 32399-1925
Dear Justice Harding,
I am presenting this to you as a citizen of the state of Florida, who
is not an attorney, but has been wronged by attorneys. I hope that what I am
presenting to you is clear and forgive me if I have not used the proper
terminology or language although I have tried my hardest to do so.
Enclosed is documentation of the basis of my complaint against
attorneys, Ronald C. Kopplow and Marc Cooper as presented to The Florida Bar
in accordance with their prescribed method of filing a grievance. In
addition I have provided you with a Chronology of Actions and a list of the
standards which I believe these attorneys have violated.
http://www.victimsofthesystem.org/jan14-00.html
Ethics Opinion 98: Dual Practice, 12/14/96
The following Formal Opinion was written by
the Ethics Committee of the Colorado Bar Association
8 DUAL PRACTICE
Adopted December 14, 1996.
Introduction and Scope
The Ethics Committee of the Colorado Bar Association has
received a number of inquiries from lawyers concerning the ethical propriety
of lawyers practicing law and being actively involved in one or more
separate professions or businesses. It is not possible to write an ethics
opinion covering every conceivable separate business in which lawyers may
become involved in addition to their law practice. Therefore, this opinion
will provide general principles intended to assist lawyers in determining
whether and how they may conduct these separate businesses without violating
the Colorado Rules of Professional Conduct ("Rules"). Then, by way of
example, this opinion will discuss specific ethical considerations
applicable to lawyers acting as agents of title insurance companies.
http://www.cobar.org/group/display.cfm?GenID=1819
Toward a history of the legalization of American legal
ethics--II the modern era
http://www.findarticles.com/p/articles/mi_qa3975/is_200201/ai_n9034235
IN THE SUPREME COURT IN AND FOR THE STATE OF FLORIDA
NORMAN LANSON and
MERYL M. LANSON,
Petitioners,
v. CASE NO. SCO2-1598
THE FLORIDA BAR, an arm of
the Supreme Court of Florida
Respondent.
PETITION FOR EXTRAORDINARY WRIT
http://www.victimsofthesystem.org/extrawrit.html
2003 Statement of Polices Concerning Outside Counsel
Conflicts of Interest
http://www.fdic.gov/buying/legal/outside/2003_sop_conflictsofinterest.html
INVESTING IN CLIENTS/STOCK FOR FEES
http://www.freivogelonconflicts.com/new_page_2.htm
And see:
in the emergence of consumer law is that while its protections
reach a wide range of economic activity, as varied as credit card purchases
and charitable giving, it has largely failed to reach a sector where
consumers spend billions of dollars each year - legal services. Because the
practice of law is considered a profession and attorneys are licensed by the
judicial branch of government, a system of self-regulation has emerged over
the past two hundred years. Not only has this system utterly failed to
protect consumers, but its existence has prevented the development of other,
more effective, safeguards for those who use legal services. In addition,
the system of attorney self-regulation has been abused to maintain a
monopoly on the delivery of legal services, which denies consumers the
ability to choose more affordable alternatives to hiring a lawyer. This
paper assesses the current system of attorney self-regulation and its impact
upon consumer rights, and suggests possible reforms to empower and protect
consumers of legal services.
http://www.halt.org/reform_projects/freedom_of_legal_information/pdf/ACCI_Ar
ticle.pdf.
February 04, 2006
Fettering the Insurer's Privilege to Control the Defense It Is
Duty Bound to Provide
http://www.insurancescrawl.com/archives/products/index.html
To be continued...
Time for aWhupping
Ken Smith
On which planet? Certainly not on Spaceship America! I'd laugh if
it were a laughing matter.
Think about it. I had to recuse the first trial judge I ever faced
on evidence that he had taken a bribe from opposing counsel. And it's
gone downhill from there.
But let's do the math, shall we?
I've appeared before ten separate tribunals and some twenty judges as
a party and/or amicus, and only *one* of those managed to follow binding
precedent (the jury on the tenth is still out). Some came right out and
admitted that they weren't following the law. Let me begin by reciting
the applicable SCOTUS precedent:
The remaining allegations in the complaints, however, involve a
general attack on the constitutionality of Rule 461 (b)(3). … The
respondents' claims that the rule is unconstitutional [because
certain conditions are alleged] do not require review of a judicial
decision in a particular case. The District Court, therefore, has
subject-matter jurisdiction over these elements of the respondents'
complaints.
District of Columbia Ct. of App. v. Feldman, 460 U.S. 462, 487 (1980)
(internal citation omitted).
While Feldman holds that direct challenges to a decision by a state
court cannot be heard in a federal district court, it also holds that
facial challenges to a bar admission statute must be heard there. In
light of that crystal clear holding, the Tenth Circuit’s admission is
astounding:
…[Smith] filed a complaint in federal district court setting forth
twenty claims for relief for alleged violations of federal law and
of plaintiff’s constitutional rights. Plaintiff sought declarations
that the Colorado bar admission process and certain admissions rules
were unconstitutional…
Smith v. Mullarkey, 67 Fed.Appx. 535, slip op. at 4 (10th Cir. Jun. 11,
2003) (emphasis added).
It's the simplest syllogism in the world: If condition X (an
applicant challenges the facial constitutionality of a bar admission
rule) is true, then Y (a federal district court must hear his claim, by
virtue of Feldman). Condition X is true (a fact the Tenth Circuit
openly admitted in the above-quoted text). Therefore, Y (a federal
district court must hear that claim). Yet, they refused.
As a general rule, judges bury their criminal acts in false
statements of fact and disingenous application of law, which is why this
case is so astounding: The Tenth Circuit is openly declaring that they
don't give a shit about the law, and daring the people to do something
about it.
Let's test your theory that the "vast majority" of judges are fair
and honest, and say that for sake of argument (and simple math), only
one in ten would violate their oath in the manner that the Tenth Circuit
did in Smith v. Mullarkey. This case has been in front of sixteen
judges, and every last fuckin' one of them violated their oaths. If
what you say is true, the odds of that happening are 0.1 x 10^16, or ten
quadrillion to one: a DNA-class statistic, which conclusively disproves
your assertion.
Still, most of the raw material for my harsh indictment comes not
from me but rather, from a veritable who’s who of American jurisprudence
[this is from a brief, and it will read like it]. Judges like Patricia
Wald, Robert Bork, Boyce Martin, Antonin Scalia, Alex Kozinski, Maura
Corrigan, Francis Murnaghan, and the late Richard Arnold. Professors
like Freedman, D’Amato, Reynolds and Richman, and Merritt and Brudney.
Harvard’s Alan Dershowitz comes right out and admits that he has “seen
[judicial corruption] with his own eyes in the courts of Boston, New
York, and elsewhere.” And the hits just keep on coming:
As a preliminary matter, I take issue with the Court’s failure to
reprove, or even to acknowledge, the Missouri Supreme Court’s
unabashed refusal to follow our controlling decision in Stanford. …
Quite apart from the merits of the constitutional question, this
was clear error.
To add insult to injury, the Court affirms the Missouri Supreme
Court without even admonishing that court for its flagrant disregard
of our precedent in Stanford. Until today, we have always held that
“it is this Court’s prerog ative alone to overrule one of its
precedents.”
Roper, supra., O’Connor, slip op. at 7, Scalia slip op. at 23
(dissenting opinion, internal citations omitted).
You would think from the practically apoplectic reaction of these two
learned jurists that a lower court’s failure to follow binding precedent
of the United States Supreme Court is a ‘Bad Thing’ -- even scandalous.
Accordingly this Court must be reminded that the only reason this
appeal is even before you is that not one but THREE courts willfully
refused to follow not one but an array of Supreme Court and Tenth
Circuit precedents. If Roper makes judges mad, Smith v. Tenth Circuit
should make them positively livid.
And then, there are the scandals. New York. Tampa. The Sixth Circuit
and Judge David Lanier. And the granddaddy of them all, Chicago’s
“Operation Greylord.” The alcoholic Michigan judge who managed to plow
his SUV into a convenience store, but yet, insisted he hadn’t been
drinking. Washington Supreme Court Justice Bobbe “Chug-A-Lug” Bridge.
Judge Roy Moore. And then, there’s Judge Donald Thompson, reportedly
caught playing with his penis pump on the bench.
And then, there is the new breed of flaming partisan “judges,” which
reward their political patrons on a remarkably consistent basis. Just
in the past few years, they have played a decisive role in
congressional, senatorial, and of course, Presidential elections. If
you wanted to know how a case would turn out, all you really needed to
know was which party nominated the judge. And once again, a judge hands
down the indictment:
Although we may never know with complete certainty the winner of
this year’s Presidential election, the identity of the loser is
perfectly clear. It is the Nation’s loss of confidence in the
judge as an impartial guardian of the rule of law.
Bush v. Gore, 531 U.S. 98, 128-29 (2004) (Stevens, J., dissenting)
(emphasis added).
There is no delicate way to say it: The people have lost faith in our
judiciary, because our judges have done something to deserve it. Judge
Miner of the Second Circuit offers this particularly brutal assessment:
The major cause of the loss of public confidence in the American
judiciary, however, is the failure of judges to comply with estab-
lished professional norms, including rules of conduct specifically
prescribed. In brief, it is the unethical conduct of judges, both
on and off the bench, that most concerns the citizenry….
Hon. Roger J. Miner, Judicial Ethics In the Twenty-First Century:
Tracing the Trends, 32 Hofstra L. Rev. 1107, 1108 (2004).
Still, Smith is less interested in denouncing our courts as he is in
fixing them, and the first step toward implementing a cure is to
acknowledge the decrepit state in to which our nation’s courts have
fallen. Remember that England used to have a court in which the judges
didn’t have to follow the law or explain their decisions with resort to
it, and enjoyed absolute immunity for their actions. It was called the
“star-chamber.” Floyd and Barker, 77 Eng.Rep. 1305 (1607). As evidenced
by the decision in Smith v. Mullarkey, the Tenth Circuit is really no
different.
In this action, Smith seeks to restore the internal discipline of the
published opinion, and re-establish the external discipline of tort
liability for intentional misconduct committed on the bench. Absolute
power with absolutely no accountability is absolute tyranny, absolutely
unacceptable in a republic governed by the rule of law. Judge Robert
Bork spoke candidly of a “judicial coup d’êtat.” Hon. Robert Bork,
Coercing Virtue: The Worldwide Rule of Judges (New York: American
Enterprise Institute Press, 2003), at 13. With due respect, I’m here to
take my country back.
Smith v. Mullarkey is a decision no court of this Circuit could have
lawfully issued, but for the operation of Rule 36. It is indisputably
incompatible, not just with the statute under which it was promulgated,
but the central promise of our Constitution: That every man shall
receive “equal justice under law.” And if a man who has been injured by
the statute, and is likely to be injured yet again, does not have
standing to be heard, who does?
By the same token, unrestrained judicial immunity is as perilous to
the rule of law as loss of judicial independence, as it merely exchanges
one tyrant for another. Maine’s Supreme Judicial Court observed:
Independence of the judiciary is not inconsistent with accountability
for judicial conduct. Lawless judicial conduct -- the administration,
in disregard of the law, of a personal brand of justice in which the
judge becomes a law unto himself -- is as threatening to the concept
of government under law as is the loss of judicial independence.
In re Ross, 428 A.2d 858, 861 (Me. 1981).
Both the common law and common sense scream for the abolition of
judicial immunity -- not for mere mistakes, but for willful acts of
misconduct on the bench. And at the very least, Section 1983 commands
that federal courts order recalcitrant state courts to follow the law.
[end of brief excerpt]
_________________________________________________
Taylor, I would submit to you that judges as a class are *certainly*
corrupt, and eminently corruptible. As President Jefferson noted, “Our
judges are as honest as most men and not more so” [citation available].
What we need is for advocates like you to get your collective heads
out of the sand and call for change. It might not affect you today, or
as severely as it has affected me, but there is a fair likelihood that
it will do so tomorrow.
Dane
CONFLICT OF INTEREST
Conclusion
The extent to which lawyers will confront potential conflicts of interest is
influenced by the size, type, and location of practice. For example, lawyers
in specialized practice areas, or serving tight-knit ethnic communities, or
practicing in small towns are more susceptible to conflicts owing to the
interrelationships among their constituencies. But key strategies can help
all lawyers avoid conflicts that can damage their reputations and lead to
liability or discipline.
Lawyers must take conflicts seriously. They must be aware of interests that
could impair their current or future independent professional judgment and
should regularly use thorough conflict-checking systems before taking on all
representations. In most cases, even where potential conflicts are
identified, attorneys have a range of choices to resolve those conflicts;
the ultimate course of action will often depend on the lawyer's degree of
risk adversity, the nature of the community, and law firm economics.
Managing conflicts requires staying on top of the situation, gathering and
using relevant information, and not letting personal relationships or the
desire for income cloud your better judgment. A lawyer cannot have a
practice completely free of conflicts; they are inherent in the practice of
law. But, using appropriate procedures, a lawyer can prevent those conflicts
from interfering with a successful practice.
http://www.abanet.org/genpractice/magazine/octnov2005/conflictsofinterest.ht
ml
Lawyer Ethics-
Conflicts of Interest
By Attorney Daniel P. Bestul
Duxstad, Vale &, Bestul S.C.
http://www.dvblaw.com/newsletter/lawyer_ethics.htm
Freivogel on Conflicts
An online guide to conflicts of interest for lawyers.
http://www.freivogelonconflicts.com/
Lawyer/Director Liability Issues. Escott v. Barchris Construction Corp.,
283 F. Supp. 643 (S.D.N.Y. 1968), was a securities class action brought
under § 11 of the Securities Act of 1933. The court, holding a
lawyer/director/drafter of registration statement liable, noted that such a
person occupied a special position and should have investigated clues that
something was wrong. Another case stating that a lawyer/director should be
held to a higher disclosure standard is Feit v. Leasco Data Processing
Equip. Corp., 332 F. Supp. 544 (E.D.N.Y. 1971). In Blakely v. Lisac, 357 F.
Supp. 255 (D. Ore. 1972), the court held a lawyer/director to a higher
standard under SEC Rule 10b-5 to discover fraudulent statements in a
prospectus. Another case where the court held a lawyer/director to a higher
standard is In re Emerging Communications, Inc. Shareholders Litigation,
2004 Del. Ch. LEXIS 70 (Del. Ch. June 4, 2004) (judgment for $75 million).
A lawyer/director was deemed a "controlling person" for purposes of § 20(a)
of the Securities Exchange Act of 1934 in Cammer v. Bloom, 711 F. Supp. 1264
(D.N.J. 1989).
Derivative Action - No Need for Pre-Suit Board Demand. Steiner v. Meyerson,
1995 Del. Ch. LEXIS 95 (Del. Ch. 1995). The court held that a pre-suit
demand would have been futile, in part because an influential member of the
board was a member of a small law firm that received $1 million a year in
fees.
Law Reviews. The Lawyer as Director of a Client, 57 Bus. Law. 387 (November
2001); Stephen M. Zaloom, Legal Status of the Lawyer-Director:
Avoiding Ethical Misconduct, 8 U. Miami Bus. L. Rev. 229 (2000); Craig C.
Albert, The Lawyer-Director: An Oxymoron?, 9 Geo. J. Legal Ethics 413
(1996); Micalyn S. Harris and Karen L. Valihura, Outside Counsel as
Director: The Pros and Potential Pitfalls of Dual Service, 53 Bus. Law. 479
(1988); Carolyn T. Thurston, Corporate Counsel on the Board of Directors: An
Overview, 10 Cumb. L. Rev. 791 (1980); William E. Knepper, Liability of
Lawyer-Directors, 40 Ohio St. L.J. 341 (1979).
ABA Director's Guidebook. See, also, ABA Committee on Corporate
Laws, Corporate Director's Guidebook (3d ed. 2001), reprinted in 56 Bus.
Law. 1575 (2001)
Treatise. Rotunda § 8-6.11.
http://www.freivogelonconflicts.com/new_page_29.htm
Investigating Conflict of Interest
By Mark R. Simmons, CIA CFE
As internal auditors, we are obligated to be familiar with the
characteristics and warning signs of fraud. The purpose of this article is
to examine a methodology for investigating criminal conflict of interest.
http://www.facilitatedcontrols.com/fraud-investigation/invstcoi.htm
Conn. AG Urges Tougher State Action, Offers Own Insurance Reforms in
Testimony Before Senate Panel
November 16, 2004, Insurance Journal
n his testimony submitted to the Senate panel today, Blumenthal warns that
the "scale and magnitude of corrupt practices" continue to mount and that
"much more remains to be done."
He said his investigators have uncovered evidence of illegal and improper
anti-consumer conduct, "ranging from bid-rigging to fraudulent, concealed
commissions and secret payoffs to flagrant conflicts of interest -- all
stifling competition and inflating insurance costs to consumers."
He promises that state prosecutors will pursue the cases aggressively even
as insurers and brokers adopt changes voluntarily, and they will block
federal efforts to intervene. "This state enforcement and reform effort
cannot be derailed or delayed by federal intervention and intrusion. We have
a right and responsibility to enforce state antitrust laws. We will seek
strong sanctions and scrutiny. I say with great respect to the United States
Congress, and particularly to the distinguished members of this panel: we
fervently hope for cooperation and will fiercely fight preemption."
He urges all states to be just as aggressive, warning that state "laxity and
inaction" will invite federal intervention. "State insurance commissioners
must heed the call for reform and act quickly to restore consumer
confidence. Too many have been industry captives. Some insurance
commissioners have aggressively responded to the crisis, but many have not.
State insurance regulators may redeem credibility and restore public trust
only if they join the fight for reform."
http://www.ufaa.com/Legislative/conn_ag.htm
U.S. Supreme Court
ADAMS FRUIT CO. v. BARRETT, 494 U.S. 638 (1990)
494 U.S. 638
ADAMS FRUIT CO., INC. v. BARRETT ET AL.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT
No. 88-2035.
Argued January 17, 1990
Decided March 21, 1990
Respondents, migrant farmworkers employed by petitioner, received benefits
under Florida workers' compensation law for injuries they suffered in an
automobile accident while traveling to work in petitioner's van. They
subsequently filed suit against petitioner in Federal District Court,
alleging that their injuries were attributable in part to petitioner's
intentional violations of the motor vehicle safety provisions of the Migrant
and Seasonal Agricultural Worker Protection Act (AWPA), 29 U.S.C. 1801 et
seq., and accompanying regulations. They sought actual and statutory damages
for such violations pursuant to AWPA's private right of action provision,
1854. The court granted petitioner summary judgment on the ground that the
state workers' compensation law provides that its remedy is exclusive, and
that respondents' receipt of benefits under that law therefore precluded
them from recovering damages under AWPA for the same injuries. The Court of
Appeals reversed, holding that such an exclusivity provision does not bar a
private AWPA suit.
Held:
Exclusivity provisions in state workers' compensation laws do not bar
migrant workers from availing themselves of a private right of action under
1854. Pp. 642-651.
(a) The explicit language of AWPA's enforcement provisions - which
establishes a private right of action for "[a]ny person aggrieved by a
violation," 1854(a) - indicates that that right is unaffected by the
availability of remedies under state workers' compensation law. A
congressional intent to the contrary is not established by AWPA's motor
vehicle safety provisions, which permit employers to satisfy the statute's
insurance and liability bond requirements through their state workers'
compensation insurance. The safety provisions appear in a Title far removed
from the enforcement provisions, and the latter provisions contain Congress'
sole express limitation on the availability of relief, which applies where
no attempt was made to resolve the disputed issues before litigation. Had
Congress intended to limit further the availability of AWPA relief based on
the adequacy of state workers' compensation remedies, it would have made
that purpose clear in AWPA's enforcement provisions. Moreover, the insurance
waiver provision is not inconsistent with the availability of overlapping
remedies under workers' [494 U.S. 638, 639] compensation laws and AWPA,
since the agricultural employer, whether or not it has enrolled in a
workers' compensation plan, will be liable under AWPA's enforcement
provisions if the employee's actual damages exceed the required minimum
insurance coverage. Although Congress may choose to establish state remedies
as adequate alternatives to federal relief, it cannot be assumed that
private federal rights of action are conditioned on the unavailability of
state remedies absent some indication to that effect. Cases in which this
Court has harmonized federal statutes that provide overlapping federal
remedies are not to the contrary. Pp. 643-647.
http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=us&vol=494&invol=638
Under Florida law, no public officer can have any contractual relationship
with a business entity that is subject to regulation by the officer's
agency.
In a 1991 opinion, the Florida Commission on Ethics said it was a conflict
of interest and against state law for the state's elected comptroller, who
then regulated banks, to hold bank stocks he inherited.
Gallagher said Monday he was unaware of the 1991 opinion. He said he never
contacted an attorney for advice concerning any limits on his investments.
Nor did he ever consider his investment in a handful of insurance companies
a conflict of interest.
"There is no correlation between the investments I made or decisions I
made," Gallagher said. "I never based a vote on anything I've owned."
http://www.sptimes.com/2006/01/31/State/Stocks_overlapped_off.shtml
The Second Circuit's recent decision changes all of that. Now, if a claimant
demonstrates some type of procedural irregularity during the claims process,
a judge may unlock the door to discovery and conduct a trial complete with
live witnesses. The Court of Appeals further held that an insurance carrier'
s inherent conflict of interest (where the entity paying the claim is the
same entity making the claim decision) may be enough to allow a court to
conduct a full bench trial complete with testimony from live witnesses.
http://www.disabilityinsurancelawyers.com/news/read/federal-appeals-court-op
ens-door-to-discovery-and-trials-in-erisa-governed-disability-cases
SUPREME COURT OF THE UNITED STATES
Syllabus
BARNETT BANK OF MARION COUNTY, N. A. v. NELSON, FLORIDA INSURANCE
COMMISSIONER, et al.
certiorari to the united states court of appeals for the eleventh circuit
No. 94-1837. Argued January 16, 1996 -- Decided March 26, 1996
A 1916 federal law (Federal Statute) permits national banks to sell
insurance in small towns, but a Florida law (State Statute) prohibits such
banks from selling most types of insurance. When petitioner Barnett Bank, a
national bank doing business in a small Florida town, bought a state
licensed insurance agency, respondent State Insurance Commissioner ordered
the agency to stop selling the prohibited forms of insurance. In this action
for declaratory and injunctive relief, the District Court held that the
State Statute was not pre-empted, but only because of the McCarran Ferguson
Act's special insurance related anti pre-emption rule. That rule provides
that a federal law will not pre-empt a state law enacted "for the purpose of
regulating the business of insurance"--unless the federal statute
"specifically relates to the business of insurance." 15 U.S.C. § 1012(b)
(emphasis added). The Court of Appeals affirmed.
http://www.law.cornell.edu/supct/html/94-1837.ZS.html
CHAPTER 112
PUBLIC OFFICERS AND EMPLOYEES: GENERAL PROVISIONS
PART III
FLORIDA CODE OF ETHICS FOR
PUBLIC OFFICERS AND EMPLOYEES
5) It is hereby declared to be the policy of the state that no officer or
employee of a state agency or of a county, city, or other political
subdivision of the state, and no member of the Legislature or legislative
employee, shall have any interest, financial or otherwise, direct or
indirect; engage in any business transaction or professional activity; or
incur any obligation of any nature which is in substantial conflict with the
proper discharge of his or her duties in the public interest. To implement
this policy and strengthen the faith and confidence of the people of the
state in their government, there is enacted a code of ethics setting forth
standards of conduct required of state, county, and city officers and
employees, and of officers and employees of other political subdivisions of
the state, in the performance of their official duties. It is the intent of
the Legislature that this code shall serve not only as a guide for the
official conduct of public servants in this state, but also as a basis for
discipline of those who violate the provisions of this part.
112.312 Definitions.--As used in this part and for purposes of the
provisions of s. 8, Art. II of the State Constitution, unless the context
otherwise requires:
(1) "Advisory body" means any board, commission, committee, council, or
authority, however selected, whose total budget, appropriations, or
authorized expenditures constitute less than 1 percent of the budget of each
agency it serves or $100,000, whichever is less, and whose powers,
jurisdiction, and authority are solely advisory and do not include the final
determination or adjudication of any personal or property rights, duties, or
obligations, other than those relating to its internal operations.
(2) "Agency" means any state, regional, county, local, or municipal
government entity of this state, whether executive, judicial, or
legislative; any department, division, bureau, commission, authority, or
political subdivision of this state therein; or any public school, community
college, or state university.
(3) "Breach of the public trust" means a violation of a provision of the
State Constitution or this part which establishes a standard of ethical
conduct, a disclosure requirement, or a prohibition applicable to public
officers or employees in order to avoid conflicts between public duties and
private interests, including, without limitation, a violation of s. 8, Art.
II of the State Constitution or of this part.
(8) "Conflict" or "conflict of interest" means a situation in which regard
for a private interest tends to lead to disregard of a public duty or
interest.
(9) "Corruptly" means done with a wrongful intent and for the purpose of
obtaining, or compensating or receiving compensation for, any benefit
resulting from some act or omission of a public servant which is
inconsistent with the proper performance of his or her public duties.
(13) "Indirect" or "indirect interest" means an interest in which legal
title is held by another as trustee or other representative capacity, but
the equitable or beneficial interest is held by the person required to file
under this part.
15) "Material interest" means direct or indirect ownership of more than 5
percent of the total assets or capital stock of any business entity. For the
purposes of this act, indirect ownership does not include ownership by a
spouse or minor child.
http://www.ethics.state.fl.us/ethics/Chapter_112.html
Florida Rules of Professional Conduct
INTRODUCTION
http://www.law.cornell.edu/ethics/fl/code/FL_CODE.HTM#Rule_4-1.7
Florida Legal Ethics
1.7 Rule 1.7 Conflict of Interest: General Rule
1.7:100 Comparative Analysis of Florida Rule
Even potential conflicts of interest will trigger FL Rule 4-1.7, because its
purpose is to prevent attorneys from undertaking representations that
potentially conflict. Florida Bar v. Cox, 655 So. 2d 1122 (Fla.
1995)(attorney suspended for 30 days for ÒmoonlightingÓ against firm policy,
even absent actual conflict between firmÕs clients and attorneyÕs private
clients). The mere appearance of conflict can also violate FL Rule 4-1.7.
Florida Bar v. Belleville, 591 So. 2d 170 (Fla. 1991)(attorney who
represented client in one-sided real estate transaction with unrepresented
party was suspended for 30 days where the attorneyÕs actions created the
appearance he might be acting in both partiesÕ interests).
http://www.law.cornell.edu/ethics/fl/narr/FL_NARR_1_07.HTM
FLORIDA BAD FAITH By: Brenton N. Ver Ploeg, Esq
http://72.14.207.104/search?q=cache:WfTc_GQWVU0J:www.vpl-law.com/CM/Articles
/Florida%2520Bad%2520Faith%2520Seminar.pdf+civil+remedy+conflict+of+interest
+statutes+florida&hl=en&gl=us&ct=clnk&cd=19&client=firefox-a
Florida Rules of Professional Conduct
From CORNELL LAW SCHOOL
INTRODUCTION
Preamble: A Lawyer's Responsibilities
A lawyer is a representative of clients, an officer of the legal system, and
a public citizen having special responsibility for the quality of justice.
http://www.law.cornell.edu/ethics/fl/code/FL_CODE.HTM#Rule_4-1.7
Florida Legal Ethics
1.6 Rule 1.6 Confidentiality of Information
1.6:100 Comparative Analysis of Florida Rule
http://www.law.cornell.edu/ethics/fl/narr/FL_NARR_1_06.HTM
Links to States' Legislative Ethics and Lobbying Laws
April 2005
http://www.ncsl.org/programs/ethics/e_ethicsURLs.htm
(Florida:
http://www.leg.state.fl.us/Statutes/index.cfm?App_mode=Display_Statute&Searc
h_String=&URL=Ch0112/PART03.HTM
http://www.leg.state.fl.us/Statutes/index.cfm?App_mode=Display_Statute&URL=C
h0011/titl0011.htm&StatuteYear=2004&Title=%2D%3E2004%2D%3EChapter%2011
Policy Manual
Code of Ethics for Florida Agencies
http://www.broward.edu/polprocman/Pol115.pdf
CONSTITUTION
OF THE
STATE OF FLORIDA
AS REVISED IN 1968 AND SUBSEQUENTLY AMENDED
http://www.leg.state.fl.us/statutes/index.cfm?Mode=Constitution&Submenu=3&Ta
b=statutes
The 2005 Florida Statutes
PART III
CODE OF ETHICS FOR
PUBLIC OFFICERS AND EMPLOYEES
http://www.leg.state.fl.us/Statutes/index.cfm?App_mode=Display_Statute&Searc
h_String=&URL=Ch0112/PART03.HTM
DAMAGES IN COMMERCIAL LITIGATION:
PLAINTIFF'S VIEWPOINT
http://www.bereysolaw.com/articles_1.shtml
Civil Procedure Forms (Vol. 3, Florida Practice Series)
This text, which includes forms, is a practical guide to civil procedure
practice in Florida.
$109.00
http://west.thomson.com/product/16345646/product.asp
The public's right of access to information about their government is a
fundamental constitutional right in Florida. In addition, Florida's open
government laws are some of the strongest in the nation, and aside from
specific and narrow exceptions, governmental bodies must keep their affairs
open to the public.
http://brechner.org/guide2%20for%20web.pdf.
Judicial Ethics Handbook
COMPREHENSIVE
http://jec.unm.edu/resources/judicial_handbook/ethics/ethics11.htm
Dane
> <snipped>
>
> I have represented clients in over a dozen civil trials, and yes, there
are
> some bad judges. However, the vast majority of judges are smart, fair,
and
>
>
>
As long as they aren't covering for a "good ole boy", right, Taylor?
This is plain and simply an outrage that the plaintiff's even had to
Petition as such, much less that they had to face, as *legally educated*
litigants [and I mean **educated!**!!!] the degradation they surely felt
when this Petition drove the final lesson home that these good old buddy
esquires who cooperate with the old buddy judges in stealing their client's
wealth will certainly be protected by the highest order of old buddies in
the state.
I want you to read, Taylor, the Plaintiff's pro se *mandamus* to the Florida
Supreme Court stating facts of outright fraudulent conduct by the complete
Florida Bar (as they knew it.)
When I read the Florida State Bars answer thereto I am made to understand
that the Florida Supreme Court is nothing more than the Capo's of the number
one major criminal syndicate infesting and sucking the money from the
citizens of the bankrupt incorporated State of Florida. And that organized
crime ring would definitely be the Florida Bar Association.
The response?
Those smart, fair, and accommodating Florida Bar Asses proceed to recite a
litany of factual statements that never once address the claims upon which
the petition was grounded.
Nor, does any "fact" relied upon by the court contradict any claim of the
litigant. BAR ASS. instead smugly infers that the crime ring bent over
backwards in humoring these victims who had had their honestly earned wealth
vacuumed from them by some unscrupulous lawyers apparently acting in cahoots
with at least one criminally co-operating judge.
*[smug recitation continued by the official crooks of the state of florida]*
" 5. Petitioners continued to complain."
[!]
*[Patently bogus drivel continues tone of moral high ground while carefully
avoiding dealing with any actual issues presented by the fleeced victims]*
"8. The chiefheadquarters discipline counsel reviewed the file and concluded
that the decision to close the file appeared to be appropriate. Petitioners
were so advised."
(Evidently Petitioners were supposed to take the hint and roll on over once
they saw the corruption of the Florida BAR , as that should have been fair
indication that it tainted the State of Florida itself as being an agency of
the predatory arm of the the Crown's Bar Monopoly.
"7. Petitioners continued to complain and again contacted counsel in the
headquarters office of the department of lawyer regulation."
(The nerve of them!)
"The chiefheadquarters discipline counsel reviewed the file and concluded
that the decision to close the file appeared to be appropriate. Petitioners
were so advised.
9. Petitioners continued to complain by contacting Edith Osman, who was at
that time the president of the bar. Ms. Osman, in turn requested further
review by bar staff. The bar's general counsel spoke, by telephone, with
petitioners and then communicated with the bar's executive director.
10. Based on the petitioners' representations that new evidence was
available, the chief headquarters discipline counsel communicated by e-mail
and letter and requested petitioners to provide same. A bar staff
investigator was assigned to review the new evidence.
11. A review of the new evidence indicated that it was not aufficient nor
aufficiently "new" to warrant reopening the disciplinary file.
12. Petitioners continued to complain."
(Hey Taylor. Have you noticed how the BAR has still neglected to state the
issues raised by the litigants, instead using the facts of the "procedural
run-a-round" that was victimizing them as justification for a denial of
justice by the Florida Bar Syndicate?)
3. The director of the bar's legal division reviewed the handling of this
investigation and engaged in communication, by letters, with petitioners and
counsel who represent or represented the petitioners. Counsel in the bar's
Miami branch office were interviewed, the bar investigator assigned was
interviewed and expert advice in the area of bankruptcy law was obtained. A
conclusion was reached and communicated to petitioners thatthe closing ofthe
file was appropriate [BLATHER CONTINUES UNABATED]
14. The petitioners seek to compel The Florida Bar to conduct further
investigation into their complaints. Also, the relief sought seeks to compel
The Florida Bar to exercise it is prosecutorial discretion in their favor.
The petition must be denied.
15. First, the petitioners twice sought this relief by way of petition for
writ of mandamus and this court denied those requests. See, Norman Lanson.
et al. v. The Florida Bar, SC01-299 (dismissed 3/28/01, rein. den. as
untimely 6/27/01 ) and Norman Lanson. et al.. v. The Florida Bar, SCO 1-1577
(dismissed 8/30/01).
16. Second, an entity possessed of discretion in the exercise of
prosecutorial authority cannot be compelled to exercise such discretion when
it has the authority to decline to take the action requested. Hunter v.
Solomon, 75 So.2d 803 (Flat 1954).
(I wonder if "authority to decline" refers to authority under the rules of
law or *authority of the despot to make arbitrary rulings at pleasure?)
17. Third, petitioners seek to appeal the decision of The Florida Bar.
Petitioners are not parties to the disciplinary proceedings but are
complaining witnesses. Complaining witnesses in lawyer disciplinary
proceedings have no right to appeal. 3-7.4(i). R. Regulating Fla. Bar.
(Of course not! That is a given in a "smart , fair and accommodating"
environment, is it not?
On the other hand, if the Plaintiff's were named as a Defendant by some
alphabet agency well, then the complaining witness of the unharmed official
could appeal a dismissal of the complaint for lacking probable cause all the
way to SCOTUS.
And, if you don't agree with that statement I invite you to reference
Illinois v. Gates where the complaining party prosecutor BAR MEMBER cried
all the way to the highest "court[cartel]" so that all of us citizen victims
could be plucked of any expectation of privacy based upon "probable cause"
as the tricksters stated that they were promoting constitutional warranted
searches by allowing hearsay and suspicion to serve as grounds proper for
the warrant. I don't care what kind of argument you may make, Taylor, I can
read and understand that ploy of removing a constitutional protection while
primly promising that constitutional invasions of privacy can be "legalized"
by reducing the standards of the issuing affidavit as being so relaxed that
law enforcement needn't be tempted to conduct a warrantless *unlawful*
search.
***And that is the very tactic being applied against the Petitioner
herein***)
{Oh, complaining witnesses have no right to appeal after, as shown by
attached affidavit:
"4. The Court should pay special attention that Kopplow and Cooper's
conflict of interest, and the filing of perjured Affidavits, amongst many
other ethical violations, resulted in the financial ruin of their clients,
the destruction of a fifty year old Florida business, and the unemployment
of approximately two hundred Florida residents."}
[The Complaining Petitioner patiently relays the facts that were ignored by
the BAR and concludes:]
"Petitioners cannot understand why the numerous, very serious violations
committed by Kopplow and Cooper do not rise to the same level as those
stated above which appear to be less egregious than the ones that have been
acknowledged by the Legal Director of The Florida Bar.
What the Legal Director of The Florida Bar has failed or will not recognize
is that, amongst other violations, the filing of a perjurious Affidavit in
the Federal Bankruptcy Court for the purpose of putting their (Kopplow and
Cooper) interests ahead of their unprotected clients occurred and that
clearly such an unlawful act should have been punished as it has been in
numerous cases but for the fact that attorneys Kopplow and Cooper were
insured by Florida Lawyers Mutual Insurance Company, and Kopplow was an
employed attorney of Florida Lawyers Mutual Insurance Company.
Petitioners believe that the underlying motivation in not punishing Kopplow
and Cooper is the conflicted relationship between The Florida Bar and
insured members of Florida Lawyers Mutual Insurance Company, the Bar's
created malpractice carrier, because in the cases cited where disciplinary
actions were taken for less egregious acts the only common factor was that
the attorneys that were punished
were not insured by Florida Lawyers Mutual Insurance Company."
[...]
15. The Petitioners twice sought relief by way of Petition for Writ of
Mandamus. The Petitioners believe that The Supreme Court of Florida denied
those requests based on inaccurate and misleading information provided to
them by the officers and employees of The Florida Bar. Indeed, contrary to
the misrepresentations of The Florida Bar, The Supreme Court of Florida has
full and complete authority over The Florida Bar and its agents and
employees.
The Legal Director of The Florida Bar in his March 4, 2002 communication
confirmed
that probable cause did exist that violations of the Rules Regulating The
Florida Bar had been committed by Messrs. Kopplow and Cooper yet nothing has
been done to protect the Petitioners from Kopplow and Cooper's wrongdoing by
The Florida Bar.
The Petitioners request that this Extraordinary Writ cause the Grievance as
filed on July 21,1998 to be presented now to an appropriate body for review
and determination in that the original inaccurate determination of a fee
dispute has deprived the Petitioners of a fair hearing on this matter before
an impartial body.
http://www.victimsofthesystem.org/extrawrit.html
----------------------------------------------------------------------------
--------------------------
Taylor, would you predict that Plaintiff's were shown equitable justice by
the "smart, fair, and accommodating" *justices* of the "Supreme" court/Bar?
Taylor, if you aren't convinced that an actual conflict of interest has been
shown by Plaintiff's, then I test you now by showing the following
statistical evidence shown independent of this cause and ask you again:
Is any of those dearly beloved "smart, fair and accommodating" judges which
serves to prove your shining standard residing in Florida, do ya think??
SEE: http://www.adask.net/PDF/71pdf/71web1ads101.pdf
On page 47 is an article: "Statistical Evidence in Law."
Is it true that "The Federal Civil Rights Statutes have defined an event
that does occur but has a probability of occurring by chance of 1 in 20 as
'statistically significant?'"
I invite you to scroll to page 49 and check out the affidavit sworn to in
1989 by "an instructor of statistics at the Florida Atlantic University, Boc
Raton, Florida [qualifications Bachelor and Masters in mathematics and
political science.]
Well, go ahead Taylor and read paragraphs 3 through 11 and tell me the whole
system, at
least in Florida, isn't rotten to the core!
Dane
Ken Smith
> "Taylor" <1...@456.com> wrote in message
> news:_qCPf.6357$wr....@tornado.texas.rr.com...
>
>><snipped>
>>
>>I have represented clients in over a dozen civil trials, and yes, there
>>are some bad judges. However, the vast majority of judges are smart, fair,
>>and accommodating in their search for justice.
>
> As long as they aren't covering for a "good ole boy", right, Taylor?
>
> This is plain and simply an outrage that the plaintiff's even had to
> Petition as such, much less that they had to face, as *legally educated*
> litigants [and I mean **educated!**!!!] the degradation they surely felt
> when this Petition drove the final lesson home that these good old buddy
> esquires who cooperate with the old buddy judges in stealing their client's
> wealth will certainly be protected by the highest order of old buddies in
> the state.
>
> I want you to read, Taylor, the Plaintiff's pro se *mandamus* to the Florida
> Supreme Court stating facts of outright fraudulent conduct by the complete
> Florida Bar (as they knew it.)
Don't expect Taylor to get his hands dirty, Dane. I will be shocked
if he offers more than a glib and dismissive one-sentence answer to me,
even though he knows I am legally educated and 'understand the system'
as well as he does. It's just malcontents -- those who are victims of
our kangaroo courts and know it.
Dane
Oh, I think they understood it only too well. I hope the "many clients with
the same hate and fear" seen by yourself didn't suffer the same indignities
as the Lanses.
But, after all, those 500 hundred years of legal reasoning from the best
minds was entrenched so as to render the "unwashed masses" as easy prey, was
it not?
http://www.victimsofthesystem.org/mandamus.html
I did not see any proposed
> solutions in your website which shows me that you are not interested in
> improving the system, only railing against it.
>
>
----== Posted via Newsfeeds.Com - Unlimited-Unrestricted-Secure Usenet News==----
Dane
"Ken Smith" <for...@it.com> wrote in message news:44103B7C...@it.com...
Heck, we might not even get a glib and dismissive one sentence answer!
:)
I'm used that discussion technique from my communications with Ted, though.
:)
Bob
I know how strongly Meryl feels. If you knew her story, which is told
in chapters 3 and 5 here www.thefloridabar.us , you'd understand her
feeling. Barons was a 50 year old menswear juggernault of South
Florida. If you follow the history, you will see only too clearly the
legal abuses involved in her case, reaching all the way up to the
Florida Supreme Court. The Florida Bar's position is most sufferable
of all. It could have stepped in and set things on a right course years
ago. Instead, it's involved in this PR campaign to win the hearts of
the public while it really steals from them.
I know this group is necessarily pluralistc; however, when you read
Meryl Lanson's story Taylor, do you shed any tears? Do you have any
concern? Maybe it's a religious thing that we secular humanists are
mainly concerned with social justice, not with earning a buck.
Bob Sherin
Bob
Where this just about disappeared from my screen, I'm bringing it to
the top again.
Duane, would you kindly identify what is illogical about my material.
I agree it's scattered, also I agree with Ken it needs to be national,
but illogical, I need your evidence, Counelor. And please, while each
mistake found is great, show me the cummulative, as you guys say in law
"the totality of circumstances."
People of this newsgroup, when your intellect soars like some of these
posts, it is sheer pleasure for me, and i'm sure, many other
non-lawyers, to read,
With Duane's, as referenced above. I've had countless people read and
criticise the material but never on the allegations that it is
illogical. As to writing style, agreed, I'm reworking the entire
thing.
Bob Sherin, Non-lawyer (hope you take no offcense at the capital N, ha,
ha)
Dane
> Gentlemen,
>
> Where this just about disappeared from my screen, I'm bringing it to
> the top again.
>
> Duane, would you kindly identify what is illogical about my material.
> I agree it's scattered, also I agree with Ken it needs to be national,
> but illogical, I need your evidence, Counelor.
I'm certainly no "Counselor" as I would much prefer to be broke and
destitute as to climb into that snakepit.
And please, while each
> mistake found is great, show me the cummulative, as you guys say in law
> "the totality of circumstances."
>
[It's Dane, but I'm not offended with Duane]
I haven't said anything at all negative about your material, as I, in fact
agree with your premises 100 percent. However, I believe Tayler may have
said something to that effect, and I have consistantly argued against that
premise.
> People of this newsgroup, when your intellect soars like some of these
> posts, it is sheer pleasure for me, and i'm sure, many other
> non-lawyers, to read,
>
> With Duane's, as referenced above. I've had countless people read and
> criticise the material but never on the allegations that it is
> illogical. As to writing style, agreed, I'm reworking the entire
> thing.
>
> Bob Sherin, Non-lawyer (hope you take no offcense at the capital N, ha,
> ha)
>
Not me. I can't believe you failed to note the numerous anti-lawyer links I
posted to you.
:)
Anyway, keep up the good work.
Dane
Dane
I read her story on your site, and then I read her story in her own words as
given in her correspondence with the BAR Syndicate and her pro se petitions
to the Florida Supreme Court. Clear and convincing proof that public hanging
of public officials should be legal.
Dane
Dane
"Ken Smith" <for...@it.com> wrote in message news:440EE070...@it.com...
I found more details on that case here:
http://home.earthlink.net/~dlaw70/8ccajudges.htm
Unbelievable!!!