in the oddball lawyer file

what would Perry have thought?

[The Associated Press]

LOS ANGELES—A judge sentenced an attorney to a year in jail for embezzling $150,000 from the trust he set up for an elderly woman who once worked as Walt Disney’s secretary.Salvatore Osio, 69, was convicted last month of one count each of theft from an elder, grand theft, forgery and perjury. The jury deliberated the case less than three hours.

Superior Court Judge George Lomeli on Wednesday sentenced Osio and also gave him five years of probation.

Prosecutors contended that Osio embezzled the money from a trust fund he was hired to set up for Alicia Waters and her husband, Henry, in 2002. She discovered the money missing after her husband’s death, authorities said. She died in 2005 at age 92.

Osio’s license was suspended in light of the conviction, and he is subject to potential summary disbarment because of the nature of the charges.

Osio is appealing the conviction.

…in another sports chapter of “I better get a lawyer”…

seems like you can’t just play ball anymore… it’s getting hairy out there. in b-ball, we have an ongoing scandal that now has the attention of Washington –

WASHINGTON (AP) -The chairman of a House subcommittee is requesting a meeting with NBA commissioner David Stern concerning the betting scandal involving former referee Tim Donaghy.

Rep. Bobby Rush, who heads the Subcommittee on Commerce, Trade and Consumer Protection, said he is also considering calling a hearing on the matter “should the facts warrant public scrutiny.”

Tim Donaghy “If the allegations prove true, this could be one of the most damaging scandals in the history of American sports,” the Illinois Democrat wrote in a letter sent to Stern on Wednesday and released to the press on Thursday.

Donaghy is the target of an FBI investigation for allegedly betting on games, including some he officiated, over the last two seasons. He resigned July 9.

Rush wrote that he appreciated the need for the league to conduct its own investigation and that he would like to meet with Stern at “the earliest appropriate time.”

“Unfortunately, fairly or not, the NBA, more than any other professional sport, has been consistently dogged with allegations that league referees needlessly affect the outcomes of games by making bad calls,” Rush wrote.

VICK and O.J.; O.J. and Vick — The inevitable comparisons begin

Having hired a high-profile lawyer who has a history of refusing to settle cases on behalf of his higher-profile clients out of court, the pundits are already labeling the Michael Vick case this century’s ”O.J.”

Take this example from the Washington D.C. Examiner:

Six years after he was drafted, it appears Vick is destined to spend time behind bars for his alleged dogfighting. The likelihood of No. 7 ever playing in the NFL again is getting smaller with each passing moment.

Instead of being the modern John Elway, Vick is on the fast track to becoming a slightly less-hated version of O.J. Simpson.

These comparisons, of course, beg for a poll. So here it is:

Study of Wrongful Convictions Raises Questions Beyond DNA

In April, Jerry Miller, an Illinois man who served 24 years for a rape he did not commit, became the 200th American prisoner cleared by

DNA evidence. His case, like the 199 others, represented a catastrophic failure of the criminal justice system.

When an airplane crashes, investigators pore over the wreckage to discover what went wrong and to learn from the experience. The justice system has not done anything similar.

But a new study does. Brandon L. Garrett, a law professor at the University of Virginia, has, for the first time, systematically examined the 200 cases, in which innocent people served an average of 12 years in prison. In each case, of course, the evidence used to convict them was at least flawed and often false — yet juries, trial judges and appellate courts failed to notice.

“A few types of unreliable trial evidence predictably supported wrongful convictions,” Professor Garrett concluded in his study, “Judging Innocence,” to be published in The Columbia Law Review in January.

The leading cause of the wrongful convictions was erroneous identification by eyewitnesses, which occurred 79 percent of the time. In a quarter of the cases, such testimony was the only direct evidence against the defendant.

Faulty forensic evidence was next, present in 55 percent of the cases. In some of those cases, courts put undue weight on evidence with limited value, as when a defendant’s blood type matched evidence from the crime scene. In others, prosecution experts exaggerated, made honest mistakes or committed outright fraud.

Most of the forensic evidence involved problems with the analysis of blood or semen. Forty-two cases featured expert testimony about hair, an area that is, Professor Garrett wrote, “notoriously unreliable.”

Informants testified against the defendants in 18 percent of the cases. (In three cases, it turned out they had an unusually powerful motive for their false testimony, as DNA evidence proved they were in fact guilty of the crime they had pinned on the defendant.)

There were false confessions in 16 percent of the cases, with two-thirds of those involving defendants who were juveniles, mentally retarded or both.

The 200 cases examined in the study are a distinctive subset of criminal cases. More than 90 percent of those exonerated by DNA were convicted of rape, or of both rape and murder, rape being the classic crime in which DNA can categorically prove innocence. For other crimes, there is often no biological evidence or, if there is, it can give only circumstantial hints about guilt or innocence.

Only 14 of those exonerated had been sentenced to death, 13 in rape-murders. There is a widespread misconception that DNA evidence has freed many inmates from death row, but it is actually a rare murder not involving rape in which biological evidence can provide categorical proof of innocence.

“DNA testing is available in fewer than 10 percent of violent crimes,” said Peter Neufeld, a founder of the Innocence Project at Cardozo Law School, which was instrumental in securing many exonerations. “But the same causes of wrongful convictions exist in cases with DNA evidence as in those cases that don’t.”

Professor Garrett’s study strongly suggests, then, that there are thousands of people serving long sentences for crimes they did not commit but who have no hope that DNA can clear them.

In a second forthcoming study of false convictions, this one focused on capital cases, two law professors — Samuel R. Gross of the University of Michigan and Barbara O’Brien of Michigan State — cautioned that “exonerations are highly unrepresentative of wrongful convictions in general.”

“The main thing we can safely conclude from exonerations is that there are many other false convictions that we have not discovered,” the Michigan study said. “In addition, a couple of strong demographic patterns appear to be reliable: black men accused of raping white women face a greater risk of false conviction than other rape defendants; and young suspects, those under 18, are at greater risk of false confession than other suspects.” Professor Garrett also found that exonerated convicts were more apt to be members of minority groups than was the prison population generally. For instance, 73 percent of the convicts cleared of rape charges were black or Hispanic, compared with 37 percent of all rape convicts.

The courts performed miserably in ferreting out the innocent. Thirty-one of the 200 exonerated prisoners, for instance, had appealed to the United States Supreme Court, but the justices refused to hear 30 of the cases. In the one case they did hear, they ruled against the inmate. Of course, appeals courts do not typically reconsider a jury’s factual findings, focusing instead on asserted procedural errors. Only 20 of the 200 even appealed on the ground that they were innocent; none of those claims were granted.

Perhaps the most troubling finding in Professor Garrett’s study was how reluctant the criminal justice system was to allow DNA testing in the first place. Prosecutors often opposed it, and 16 courts initially denied requests for testing.

Yet DNA evidence can do more than free the innocent. In many cases, it also identified the person who actually committed the crime.

In 40 percent of the cases handled by the Innocence Project, Mr. Neufeld said, DNA not only exonerated the innocent prisoner but also provided evidence that helped identify the person who committed the crime. “In every single one of those cases that perpetrator had committed violent crimes in the intervening years,” he said.

The era of DNA exonerations should be a finite one. These days, DNA testing is common on the front end of prosecutions, meaning that in a few years, the window that the 200 exonerations has opened on the justice system will close. We should look carefully through that window while we can.

By ADAM LIPTAK Ny Times

‘Hot Ghetto Mess’ in…well…a mess

In a war pitting one lawyer against another – and proving yet again that the pen (er…keyboard) is often mightier than the sword — a coalition is close to putting the kibosh on Black Entertainment Television’s new show Hot Ghetto Mess before it gets off the ground.

The Austin American-Statesman reports:

On Wednesday, Black Entertainment Television is set to start airing a show called “Hot Ghetto Mess.”

Austin lawyer Gina McCauley, 31, hopes to stop the show from making it on the air. She uses her blog to voice her opposition.

McCauley is part of a wave of Internet activism against the show. Her blog, whataboutourdaughters.com, was cited in a New York Times news brief about the controversy over the show.

“Hot Ghetto Mess” is based on the Web site of the same name, created by Jam Donaldson, 34, a black lawyer from Washington, D.C., who is an executive producer on the BET program. The site features photos of men and women, mostly African American, with extreme hairstyles and clothing typically linked to hip-hop fashion.

The six-episode show, hosted by “Chappelle’s Show” alumnus Charlie Murphy, will include home videos and BET-produced person-on-the-street interviews.

BET says the show is intended to challenge and inspire “viewers to improve themselves and their communities.”

McCauley, who is African American, and other foes, however, say the show will just spread destructive stereotypes.

“The original purpose of the blog was to serve as a clearinghouse for grass-roots efforts to counteract negative portrayals of African American women in popular culture,” she said.

Websites Rally Support for GI’s in Legal Trouble

From left, Mark O’Reilly, Patrick Barnes and Thomas Bolinder
of the Military Combat Defense Fund support servicemen accused of crimes.

By PAUL von ZIELBAUER
New York Times

Published: July 22, 2007

Conservative Christians and military veterans are part an emerging group of Americans who say they are upset by the recent prosecutions of soldiers and marines based in Iraq on war crimes charges, and are coming to their defense with words, Web sites and money.

In the past year, more than a dozen Web sites have been developed to solicit donations to hire private lawyers for service members who have been charged with violent crimes for actions taken in the confusion of combat or counterinsurgency operations. They have raised more than $600,000, organizers say, from grandparents, business executives and college students, among others. The average donation is for $25 to $50.

Virtually all donations come with handwritten or e-mail messages full of encouragement for the troops in Iraq and laced with frustration at the government and the news media.

“I wonder if you are supposed to check out each enemy to see if they have a gun or wait for them to shoot first,” wrote a 98-year-old woman from Grand Junction, Colo., who recently sent $25 to the Military Combat Defense Fund, a group outside Boston that has provided more than $85,000 to smaller funds set up for individual marines accused of murder and other crimes in Haditha and Hamdaniya, Iraq. “Bible says that the country will always be fighting. We have been praying for all you boys and girls.”

In interviews, organizers and contributors said they believed that many of the prosecutions were based on feeble evidence and gauzy recollections of Iraqis sympathetic to the insurgency and hostile to the American military mission in Iraq.

They point to the case against Lance Cpl. Justin L. Sharratt, who was charged with killing three unarmed Iraqi men at point-blank range in Haditha in 2005. This month, a Marine lawyer investigating the charges recommended dismissing them, for lack of evidence, and warned that pressing flimsy cases against combat troops “sets a dangerous precedent” that eroded public support for the war and could cause infantrymen to hesitate when fighting a determined enemy.

There is no denying that some American troops have committed violent crimes against Iraqi civilians during more than four years of war in Iraq and Afghanistan. Military prosecutors have won convictions against soldiers and marines in more than 200 cases of violent crimes, including murder, rape and assault, military records show. One the most heinous episodes occurred last year, when a group of soldiers from Company B of the First Battalion, 502nd Infantry, 101st Airborne Division raped a 14-year-old Iraqi girl and killed her and her family, Army prosecutors said.

Two soldiers, Specialist James P. Barker and Sgt. Paul E. Cortez, pleaded guilty to rape and murder; Specialist Barker was sentenced to 90 years in prison and Sergeant Cortez was sentenced to 100 years. A third soldier pleaded guilty to being an accessory. Federal prosecutors announced this month that they would seek the death penalty against the former soldier described as the ringleader, Steven D. Green. But in more than a dozen interviews, organizers and contributors said they were motivated by anger at the Bush administration and the military for prosecuting combat troops and commanders just for doing their jobs, they say, in life or death circumstances, as they were trained.

“The insurgency has found a new weapon, besides the bomb, and that’s to accuse these young men of wrongdoing, because we throw the book at them,” said Maralee Jones, 45, a mortgage loan officer in Utah who taught herself how to build a Web site, to raise money to help several accused marines pay for civilian lawyers, who are generally regarded as more experienced and aggressive than military defense lawyers.

“We all feel like the big brass have eaten their young here,” said Ms. Jones, whose son is serving with the Third Battalion, Fifth Marines, the same unit as the marines accused in the Hamdaniya case. “You just can’t put people under a microscope when the lines of combat are so blurred.”

So far the fund has raised $78,000, she said.

Outside Boston, a group of Vietnam War veterans — retired police officials, postal workers, lawyers and others — established the Military Combat Defense Fund and recently surpassed $152,000 in donations to their Web site, said Patrick Barnes, a former radio reporter who is the group’s treasurer.

Religious conviction plays a role in much of the giving, Mr. Barnes said.

“They believe the military’s work is God’s work,” he said. “That’s what’s been indicated in the letters.”

The movement to defend accused marines and soldiers generally does not embrace cases that appear to be premeditated atrocities. The board of directors for at least one large fund recently voted to stop contributing to marines who pleaded guilty to violent crimes. Two widely discussed cases are the killing of 24 Iraqis in Haditha in 2005, which led to murder charges against three low-ranking marines and dereliction of duty charges against four officers, and the abduction and killing of an Iraqi in Hamdaniya last year, for which the Marine Corps has charged seven marines and a Navy corpsman.

On Wednesday, a military jury convicted Cpl. Trent D. Thomas of kidnapping and conspiracy to murder in the Hamdaniya case. The jury’s sentence, announced Friday, called for a demotion and a bad-conduct discharge but no prison time. Four other marines and the corpsman have pleaded guilty to lesser charges in exchange for reduced sentences.

Terry Pennington, a former Air Force technician whose son, Lance Cpl. Robert Pennington, was among the Hamdaniya marines who pleaded guilty, said in an interview: “Many of these people see this country as not having the guts anymore to fight a war. They’re outraged really all the way up to the White House.”

Mr. Pennington said the Web site for his son, has collected about 1,000 contributions, many for $5 and $10. The wife of Corporal Thomas has raised $14,000, according to her Web site.

Much of the strongest criticism from many defense funds is directed toward mainstream news organizations, which they say portray the concerns of Iraqis more sympathetically than the plight of American troops.

“From the magazines and newspapers that I read, it seems that many of them are too condemning of our own guys,” said Jacqueline Batcha, 44, of Atlantis, Fla., who sent $100 to the Web site for Staff Sgt. Frank D. Wuterich, who is charged with 13 counts of murder in the Haditha case.

Other parents of active-duty marines and soldiers are doing whatever they can to publicly support troops facing charges.

In Seattle, Don Dinsmore, the father of a marine infantry officer currently on duty in Falluja, led a group of motorcycle riders on a West Coast road trip to the gates of Camp Pendleton, Calif., on June 28, where hearings and trials in the Haditha and Hamdaniya cases are being held. Along the way the group collected enough cash donations to fill 10 bank-deposit bags, Mr. Dinsmore said.

Not all marines facing criminal charges receive the same amount of attention, or cash donations.

Though Sergeant Wuterich’s defense fund has received only a few thousand dollars, the Thomas More Law Center, a Christian firm representing his battalion commander, Lt. Col. Jeffrey R. Chessani, who is charged with dereliction of duty, has collected about $300,000, said one of Colonel Chessani’s lawyers, Brian J. Rooney.

One difference, it seems, is Michael Savage, a popular conservative talk-radio host who has discussed Colonel Chessani’s case on his syndicated program.

Mr. Rooney’s law center received $50,000 in contributions in just three days this month, after Mr. Rooney’s latest interview with Mr. Savage.

“He’s all over this case,” Mr. Rooney said of Mr. Savage. “He really is a big supporter of us and the Marines.”

Lawyers Take Aim at Marriage Amendment

Passage of a constitutional amendment banning same-sex marriages could undermine the rights of all unmarried couples in Virginia, a coalition of lawyers said Thursday. The amendment will be on state ballots this fall.Deputy Attorney General David Johnson, who helped draft the amendment and supports its passage, dismissed the lawyers’ complaints as a “red herring” orchestrated by opponents of the ballot question.The alliance of about 100 lawyers, most of whom practice in Virginia, was announced by the Commonwealth Coalition, an organization leading the campaign against the amendment.

The lawyers signed a petition saying they agreed with legal analysis that the amendment, if passed, could undercut the rights of all unmarried couples to enter into contracts, enforce wills and child custody agreements or receive the protection of domestic violence laws.

The bipartisan array of lawyers signing the petition includes former state attorneys general Stephen Rosenthal and Tony Troy; Wyatt Durrette, an unsuccessful Republican nominee for governor in 1985; and Jeffrey Breit of Norfolk, a longtime Democratic activist.

“The fact that this many of Virginia’s top lawyers are concerned about the legal effect of this amendment shows that it is a legal Pandora’s box,” said Claire Guthrie Gastanaga, campaign manager for the Commonwealth Coalition.

Johnson said the General Assembly has clearly stated that the amendment is not intended to infringe upon the rights of unmarried couples to enter legal agreements.

“A contract will remain a contract, a will will remain a will,” he said.

Gap Seen Between Court-Appointed Attorneys and Public Defenders

Gap Seen Between Court-Appointed Lawyers and Public Defenders

By ADAM LIPTAK (NY Times)

Some poor people accused of federal crimes are represented by full-time federal public defenders who earn salaries, others by court-appointed lawyers who bill by the hour. A new study from a Harvard economist says there is a surprisingly wide gap between the two.

Both kinds of lawyers are paid by the government, and they were long thought to perform about equally well. But the study concludes that lawyers paid by the hour are less qualified and let cases drag on even as they achieve worse results for their clients, including sentences that average eight months longer. Appointed lawyers also cost taxpayers $61 million a year more than salaried public defenders would.

There are many possible reasons for the differences in performance. Salaried public defenders generally handle more cases and have more interactions with prosecutors, meaning they may have a better sense of what they can hope to negotiate for their clients. Salaried lawyers also tend to have superior credentials and more legal experience, the study found, and those factors probably result in better performance. And salaried lawyers have no incentive to spend more time on a case than it deserves and run up their bills.

The study will add a new factor to the debate over the nation’s indigent defense systems. In 1963, the Supreme Court ruled in Gideon v. Wainwright that poor people accused of serious crimes are entitled to legal representation paid for by the government.

Roughly three quarters of all federal defendants rely on lawyers paid for by the government, about evenly divided between salaried public defenders and appointed lawyers paid by the hour. Most of the rest hire their own lawyers, with about two percent representing themselves. The debate over how best to provide poor defendants with adequate representation has so far largely concerned whether lawyers for indigent defendants are paid enough to ensure a fair fight with prosecutors. The debate has not focused how the lawyers are paid, and whether that makes a difference.

The new study looked at federal prosecutions from 1997 to 2001. It was performed by Radha Iyengar, a post-doctoral fellow at Harvard’s Institute for Quantitative Social Sciences, and presented as a National Bureau of Economic Research working paper.

Judge Morris B. Hoffman, a Colorado trial judge and a co-author of a 2005 study on the representation of indigent defendants, said the new study’s innovation was in noticing that public defenders and appointed lawyers are assigned randomly in many federal judicial districts.

That means, Ms. Iyengar wrote, that the two sorts of lawyers had “the same underlying distribution of guilt in the cases they represent and thus are equally likely to lose at trial.”

Court-appointed lawyers — known in federal judicial jargon as Criminal Justice Act panel attorneys — are needed where public defenders’ offices have conflicts of interest in cases involving multiple defendants. They can also fill in as the volume of prosecutions fluctuate.

The vast majority of federal prosecutions end in plea bargains, and only about five percent of them reach trial. Ms. Iyengar found that court-appointed lawyers were slightly more likely to take cases to trial and slightly more likely to lose.

But her more important finding, given all the plea bargains, was that defendants represented by court-appointed lawyers received substantially longer sentences. That suggests the appointed lawyers are less adept at assessing which cases to pursue through trial and at negotiating with prosecutors.

Over all, defendants represented by court-appointed lawyers received average sentences about eight months longer. People convicted of violent crimes got five more months, while those convicted of weapons charges got almost a year and half more. But people convicted of immigration offenses receive sentences that averaged 2.5 months less if represented by appointed lawyers.

Appointed lawyers took longer to resolve cases through plea bargains — 20 days on average, a 10 percent difference.

“These results appear consistent with the hourly wage structure,” Ms. Iyengar wrote, as that structure creates incentives for appointed lawyers to take longer to resolve cases.

She concluded that appointed lawyers impose an additional $5,800 in costs for the system for every case they handle.

Analyzing data from California and Arizona, the study found that appointed lawyers were less experienced and had less impressive credentials.

“The court appointed lawyers tend to be quite young, tend to be from small practices, and also they tend to be from lower ranked law schools,” Ms. Iyengar said in an interview. “They have a smaller client base and fewer interactions with prosecutors.”

Judge Hoffman said a number of the study’s conclusions were unsurprising given that finding. However they come to represent their clients, less experienced lawyers tend to do less well in plea negotiations, in deciding which cases to take to trial and in trial outcomes, Judge Hoffman said.

Jon M. Sands, Arizona’s Federal Public Defender, said he did not recognize the picture painted in the study. Court-appointed lawyers, he said, “are seasoned and committed and their sentences on the whole don’t vary that much from those obtained by public defenders.”

The federal system, which handles about five percent of all criminal prosecutions, is relatively well funded and has some distinctive characteristics. The implications of the new study for the states may therefore be limited.

But more than half the states use a combination of public defenders and appointed lawyers, and a majority of indigent defendants are not represented by staff public defenders at the trial level.

David Carroll, research director for the National Legal Aid and Defender Association, endorsed the study’s financial analysis but not its conclusions about the relative quality of staff versus hourly lawyers.

“Even though you can provide legal services that meet national standards in a variety of ways,” Mr. Carroll said, “there is a cost savings in establishing staff public defender offices.”

”

The British are Coming! The British are Coming!

Apparently, American Lawyer will soon be owned by our friends across the pond.

Partner ain’t what it used to be…

The Wall Street Journal reports that the extended vacation that once was synonymous with making partner may be coming to an end:

Earlier this year, Chicago-based Mayer, Brown, Rowe & Maw LLP fired or demoted 45 partners — about 10% of the equity partnership — to help improve profitability. Jenner & Block LLP, a large firm based in Chicago, and Powell Goldstein LLP, a midsize firm based in Atlanta, also recently demoted or fired partners.

Once rare, quiet and restricted to the most competitive firms, “de-equitization” has become one of the most popular buzz words in law-firm management. As corporate firms across the country with ambitions to grow and boost profits have aggressively and publicly thinned their partner ranks, the word has stoked a new sense of vulnerability among lawyers.