Finding Mistrial Decision Premature, 2nd Circuit Bars Retrial of White-Collar Defendants

A federal judge's hair-trigger declaration of a mistrial without polling the jury means the government is now barred by double jeopardy from retrying two white-collar defendants.

In what lawyers for the two men say is an unprecedented decision, the 2nd U.S. Circuit Court of Appeals in United States v. DeGennaro, 06-4195-cr, said Monday that Eastern District of New York Judge Leonard Wexler abused the considerable discretion given judges for declaring a deadlocked jury.

The ruling is a victory for Michael DeGennaro and Frank Borghese, who were among a group of senior executives at Symbol Technologies, a Long Island bar code scanning company, accused of fraudulent accounting practices and other misconduct designed to boost Symbol's stock price over a five-year period.

Details here from the New York Law Journal via Law.com.

N.Y. Persistent Felon Law Held Invalid by Federal Court

A second federal judge has found New York state's persistent felony offender statute unconstitutional because it allows judges to find facts that can lead to a sentence beyond the statutory maximum.

Southern District of New York Judge John Koeltl found that N.Y. Penal Law § 70.10 violated the Sixth Amendment right to a jury trial because, under the rapidly evolving case law of the U.S. Supreme Court, a jury has to find the facts that the state law leaves to the judge.

Judge Koeltl granted a petition for a writ of habeas corpus to inmate William Washington in Washington v. Poole, 06 Civ. 2415. The decision comes five months after Eastern District of New York Judge John Gleeson made a similar ruling in a habeas case and just one month after Southern District of New York Judge Robert Sweet went the other way and upheld the law.

These three decisions will now join a fourth that is pending in the 2nd U.S. Circuit Court of Appeals, Phillips v. Artuz (WL 1867386).

"The constitutionality of these statutes is obviously still in play," said Jonathan Kirshbaum of The Center for Appellate Litigation, who represented Washington.

Details here from the New York Law Journal via Law.com.

Another Reason to Carry Crisp Benjamins

Before putting the cuffs on Rodel Rodis, the Ninth Circuit says the cops should’ve asked him more questions about his fishy-looking $100 bill.

No doubt.

Because Rodis, it turns out, is a San Francisco lawyer — one who has already helped sue the government for violating people’s rights. So it doesn’t surprise us that he wasn’t the type to forgive and forget when the police brought him down to the station so they could make a phone call to investigate the bill — one that, as it turned out, was perfectly legit.

“The decision is just so satisfying because of what was at stake,” Rodis said Tuesday afternoon, hours after a Ninth Circuit panel published a decision (.pdf) saying he can go ahead and sue two police officers for violating his civil rights. “Any one of us can have a $20 bill, a $50 bill, and we can’t all have a counterfeit detector pen to make sure all the bills we have are genuine.”

Even a pen like that couldn’t keep Rodis, who does mostly civil and immigration work, from arrest back in 2003, though. When he went to pay for “a few items” with a $100 bill, the cashier examined it for authenticity. Because it was really old and appeared to have an unusual texture, she called in her manager. While Rodis paid with another, apparently normal-looking $100, the manager compared the first fishy-looking one to others in the store’s safe, and tested it with the store’s counterfeit detector pen — which indicated the money was real. Still, the manager remained suspicious and called the police, so Rodis waited.

The officers examined the bill and “concluded it was probably counterfeit,” Tuesday’s opinion says, but decided they needed an expert opinion from the Secret Service. Before getting that, though, they arrested Rodis, “because the officers believed it would be easiest to continue the investigation from the police station.”

Details here from Legal Pad vial CalLaw.com.

Motion to Disqualify Opposing Counsel Backfires

California attorney Fredric J. Greenblatt represented numerous plaintiffs in a case against something called "Century Crowell Communities, aka Century Vintage Homes." He moved to disqualify opposing counsel on the ground that opposing counsel had "improper contacts with four persons who were clients or former clients of Greenblatt’s law firm."

The trial court denied the motion, apparently noting that the evidence suggested that if anyone had acted improperly, it was Greenblatt, and not his opposing counsel. Unwisely, Greenblatt appealed the denial of his motion. Today, the Court of Appeal summed things up thusly:

Plaintiffs contend the trial court abused its discretion in denying their motion to disqualify defendants’ counsel because (1) defendants’ counsel improperly communicated with adverse parties without consent of plaintiffs’ counsel; (2) the trial court erroneously based its decision on the ground that plaintiffs had failed to show prejudice; and (3) the trial court considered facts and evidence that were not properly before the court. We find no abuse of discretion, and we affirm. In addition, because the face of the record suggests misconduct on the part of [plaintiffs'] counsel, we will refer the matter to the State Bar of California for further investigation and, if appropriate, imposition of sanctions. . . .

[W]e are astonished – as was the trial court – that plaintiffs chose to support their motion to disqualify defendants’ counsel with declarations that on their face indicate improper and unethical conduct on the part of plaintiffs’ own counsel.

Oops. Greenblatt's self-reported misconduct included naming plaintiffs who had never agreed to be part of the lawsuit, and having plaintiffs sign verifications of discovery responses they had never seen. Ramon Ramirez v. Century Crowell Communities (Fourth App. Dist. Div. 2, Aug. 28, 2007) No. E040425.

Gonzales' Legacy of Controversy

Questions linger about limits on civil liberties and influence of politics on justice.

WASHINGTON -- As Alberto R. Gonzales closes the door on his Washington career, he leaves an enduring legacy: a Justice Department mired in controversy over the firing of U.S. attorneys and a series of legal and moral challenges to his post-Sept. 11 policies on presidential power, torture and domestic spying.

"This resignation is not the end of the story," Senate Majority Leader Harry Reid (D-Nev.) said Monday in a statement that indicated Democrats' intent to continue probing Gonzales' tenure. "Congress must get to the bottom of this mess and follow the facts where they lead, into the White House."

The controversies lingering beyond Gonzales' scheduled departure next month fall into two broad categories: whether he went too far in abridging civil liberties in the name of safeguarding the nation against terrorist threats, and whether he and his subordinates allowed political considerations to intrude improperly on the administration of justice.

Details here from the Los Angeles Times.

Life-Tenured Judge Wants off the Federal Bench

In a highly unusual move, U.S. District Judge Martin Jenkins, a life-tenured federal judge in San Francisco, is prepared to give up his seat and has applied for an opening on the California State Court of Appeal bench.

Jenkins, 54, a moderate Democrat and former state trial court judge in Oakland, Calif., was appointed by President Clinton a decade ago. He confirmed rumors that he has submitted an application with Republican Gov. Arnold Schwarzenegger for the vacancy.

Jenkins declined to discuss his plans further or reasons for his willingness to go from the federal court to state court, where he would face periodic confirmation votes by California voters.

Those close to him have indicated his practice of working long hours and meticulous attention to detail in a large federal caseload has taken a toll.

Details here from the National Law Journal via Law.com.

Fee Fight Leads to Nearly Tenfold Increase in Amount Attorney Owed

Refusing to pay $28,000 in attorney fees a decade ago has turned into a more than $250,000 headache for Houston attorney Robert S. "Bob" Bennett.

In an Aug. 16 memorandum opinion in Bennett v. Coghlan, a three-justice panel of Houston's 1st Court of Appeals affirmed an award of tens of thousands of dollars in attorney fees that lawyer Kelly Coghlan says he had to run up trying to collect attorney fees Bennett owed him.

The 1st Court's opinion laid out the following: In 1996, Bennett and Coghlan represented parties in an antitrust suit, identified in a footnote as Piggly Wiggly Clarksville Inc., et al. v. Mrs. Baird's Bakeries/Johnny B. Tucker d/b/a/ H&M Grocery, et al. v. Mrs. Baird's Bakeries Inc. in the U.S. District Court for the Eastern District of Texas, Paris Division. After the litigation in Mrs. Baird's, Coghlan sent Bennett a bill for $28,000, which Bennett refused to pay.

Coghlan, principal in Houston's Coghlan & Associates, says he and Bennett had a verbal agreement that Bennett would pay Coghlan a percentage of the attorney fees for his work on the Mrs. Baird's litigation, a class action involving numerous plaintiffs and attorneys.

Details here from Texas Lawyer via Law.com.

PBS Conflicted Over Adult Language in Ken Burns' 'War'

This is why we must elect a Democrat -- any Democrat -- to be President next year. We're being governed by a regime heavily beholden to fundamentalist Christian interests which would, if allowed, be just as repressive as the Taliban was in Afghanistan:

[The FCC} fined KCSM, a public broadcaster operated out of San Mateo Community College, $15,000 for profanity that aired in the Martin Scorcese-produced documentary "The Blues: Godfathers and Sons." In a 2006 order, the commission said, "The gratuitous and repeated use of this language [the word "fuck"] in a program that San Mateo aired at a time when children were expected to be in the audience is shocking."

Scorcese replied in a letter to the FCC last year that he had "deep concern over the adverse impact that the FCC's actions will have on the creative process generally."

Why did the FCC pick on tiny KCSM? Because a single viewer complained about it.

"All it takes is one viewer to complain," said Marilyn Lawrence, KCSM's general manager. Given the $200,000 in discretionary spending the station has in its $5 million budget, Lawrence said $15,000 isn't an insignificant amount. Although the station is appealing the fine, KCSM remains skittish about attracting the FCC's attention again.

For a recent art history show it aired, the station instructed its producers to airbrush the nude behind of the Venus de Milo statue. While KCSM has restored the full contours of Venus' marble behind in subsequent airings, it still precedes the program with a "Viewer Discretion Advised" warning that states, "The following program is a college-level telecourse and may contain subject matter intended for mature audiences."

The station also still pixelates bare body parts in movies like 1967's PG-rated "The Graduate" - even when the movie is aired as part of a film-history telecourse. The station is so scared about profanity leaks that it bleeped out a person cursing in German in an English TV program it aired.

"Now, my staff spends at least half a day a week looking for those types of things," Lawrence said.

Details here from Joe Garofoli of the San Francisco Chronicle. (Episode one of Ken Burns' "The War" airs on Sunday 9/23 at 8 p.m. and 11 p.m. on KQED and KTEH in the Bay Area.)

Sharper Image Claims Reimbursing Customers Will Cause Bankruptcy

Financial experts for retailer Sharper Image are expected to testify today that the company could be pushed into bankruptcy if it is forced to pay up to $900 million to settle a class action lawsuit being pushed by 27 state attorneys general and several plaintiffs attorneys.

At a final fairness hearing today, U.S. District Judge Cecilia Altonaga must weigh Sharper Image's financial health against the demands of various plaintiff groups and attorneys general who want customers compensated for $300 air purifiers they say were ineffective.

An estimated 3 million consumers have purchased the San Francisco-based company's Ionic Breeze purifiers since 1999. The machine, which was supposed to remove dust, pollen and other pollution from household air, did not work and in some cases caused more health problems, such as allergies, according to consumers.

Consumer Reports magazine slammed the device in one of its issues.

Details here from the Daily Business Review via Law.com.

DRAM Case Yields $81 Million Fee Award

With a swagger in his step and a gold tie around his neck, Guido Saveri exuded an air of largesse Wednesday morning.

Moments earlier, a federal judge had approved attorney fees for Saveri and other plaintiffs lawyers who reached a $325 million settlement in a price-fixing case against companies that make DRAM computer chips.

Lead plaintiffs attorneys say an estimated $81.5 million, or 25 percent of the total settlement, will be split as fees between some 40 firms that worked on the case, which was brought on behalf of companies that used the chips in their products.

"Tony, I'll buy you a cup of coffee," Saveri told co-counsel Anthony Shapiro of Hagens Berman Sobol Shapiro, who argued the fee motion before Northern District of California Judge Phyllis Hamilton.

I won't argue that this fee wasn't justified by existing law or was outside the bounds of reason. I know Judge Hamilton, and she has a reputation as being a pretty by-the-book, conservative judge.

But over eighty million dollars??? At my current salary as a public servant, I would have to work for over seven hundred (700) years to earn an equivalent amount. Judge Hamilton would have to work for approximately 560 years. It strikes me that this is somehow insane.

Details here from The Recorder via Law.com.

D.C. Judge Files Appeal Over Missing Pants

D.C. administrative law judge Roy Pearson Jr. won't give up after losing his $54 million lawsuit against a local dry cleaner over a missing pair of pants.

Pearson filed an appeal Tuesday with the D.C. Court of Appeals, although the Chung family on Monday withdrew its motion seeking to compel Pearson to pay more than $82,000 in attorney fees. The Chungs have raised close to $100,000 through fundraisers and donations to help cover their legal fees and business losses after international media attention focusing on the case.

Pearson is soldiering on after losing a two-day bench trial in June where he wept over his missing pants, which he'd had altered because he gained weight while he was unemployed before becoming an administrative law judge in 2005.

Chris Manning, the Chungs' attorney, released a statement Tuesday: "The Chungs have done everything possible to put this nightmare behind them and return to their normal lives. They have won resoundingly at trial, raised donations from gracious private donors to pay for their litigation costs, let Mr. Pearson off the hook for personally paying their expenses and extended an olive branch to Mr. Pearson in hopes that he would end this matter and not appeal."

Details here from Legal Times via Law.com.

$4 Billion Suit Against Akin Gump Highlights Hedge Fund Representation Risks

Like most hedge fund managers, James McBride and Kevin Larson expected to make a tidy sum. By the fall of 2003, they seemed well on their way. The series of Veras funds they had launched less than two years before had already attracted around $1 billion in investments.

But then regulators, including then-New York state Attorney General Eliot Spitzer and the Securities and Exchange Commission, came after the Veras funds for "late trading," the illegal purchasing of mutual fund shares after the 4 p.m. market close. Veras wound up paying more than $36 million in penalties before shutting down. McBride and Larson each paid $750,000 and were barred from the industry.

But the ex-fund managers are still out for big money, this time from the law firm they claim advised them that late trading was legal. In February, the former hedge fund managers filed suit against Akin Gump Strauss Hauer & Feld in Manhattan Supreme Court.

Their damages claim? A whopping $4.4 billion, not including punitive damages.

Details here from the New York Law Journal via Law.com.

Justice Kennedy to ABA: 'The Work of Freedom Has Just Begun'

In an emotional address to the American Bar Association, Supreme Court Justice Anthony Kennedy on Monday implored the nation's lawyers to constantly re-examine their conduct to be sure they exemplify principles of justice and fairness and advocate for the rule of law around the world.

Kennedy, 71, received the association's Medal of Honor, its highest award, for a career of advancing the rule of law and advocating for improvements in the profession and administration of justice. Nearing his 20th anniversary on the nation's highest court, Kennedy recalled his early days as a lawyer and choked up as he thanked his family for supporting his career.

In a reference that could be taken as a defense of his own work on the Court, Kennedy said lawyers "must never cease asking, 'Why am I doing this? What inner voice is telling me to decide the case this way?'" Kennedy told the assembled House of Delegates. Such introspection, he said, "is not indecision, it is fidelity to your oath."

Especially on the newly configured Roberts Court, Kennedy is a crucial swing vote, and his agonizing and occasional vote switches are legendary.

Kennedy said the association and the profession should be proud of its role in advancing justice worldwide. "The American lawyer has an honored place in the history of human progress," Kennedy said. But worldwide, he said, the legal system Americans take for granted is unknown to millions. If American lawyers don't seek to spread legal structures and principles around the world, Kennedy said, "The rule of law and our freedom is not secure.

"There is hurt to assuage ... There is injustice to be confronted," Kennedy concluded. "The work of freedom has just begun."

Details here from Tony Mauro of Legal Times via Law.com.

Wheelchairs of Fortune

Attorney Tom Frankovich and his disabled clients sue small businesses to make them accessible - and make millions

Inside his elegant law office in a restored century-old Victorian at the upper end of Van Ness [in San Francisco], with his feet sprawled across an enormous hand-carved desk to reveal the most audacious pair of alligator boots this side of Wyoming, Tom Frankovich projects the swagger of a man at the top of his game.

The cartoon image that greets visitors to his law office Web site may well be the closest thing to a Frankovich self-portrait. In it, the burly, pony-tailed lawyer with a penchant for cowboy hats and bolo ties leads a throng of the disabled from atop a military tank labeled "Access Blaster." A gun-toting female stands guard as Frankovich commandeers a special phone for the hard-of-hearing.

Perhaps not surprisingly, he professes to practice disabilities law the way his favorite role models, World War II generals Rommel and Patton, executed warfare. "The best defense is a good offense," he declares. "You keep going. You don't stop. The only thing that works is firepower; the more the better."

Details here from the SF Weekly.

Missing Lawyer Admits Embezzlement in Confessional Letter

The letter is part confession, part apology and part practical advice. It is shocking in its honesty.

"I have embezzled funds from my clients," business law attorney Jonathan Hoyt wrote to his son, attorney Christopher Hoyt. "Like most lawyers who fall into this trap I always did it with the idea that I would repay the funds, but of course once I started down this slippery slope there was nothing but failure waiting for me at the end."

The letter is dated July 7, one day after Jonathan Hoyt, 58, was last seen in The Hoyt Law Group's Clinton, Conn., office, according to police. As of late last week, he was still missing. Clinton police are investigating his disappearance. Hoyt's tan 1999 Lexus 300 four-door sedan was found by police on July 17 in a private parking lot near the Intermodal Transportation Center in Bridgeport, Conn.

On July 20, Middletown Superior Court Judge Julia L. Aurigemma accepted the state disciplinary counsel's application to immediately suspend the elder Hoyt's law license. A trustee has been appointed to take over the firm's client files.

Details here from the Connecticut Law Tribune via Law.com.