Nice job, but what about that other case?

GrassoThis Wall Street Journal editorial pats itself on the back justifiably for swimming against the mainstream media tide in opposing from the outset former New York Attorney General Eliot’s Spitzer’s popular but dubious litigation and propaganda campaign against former New York Stock Exchange chief executive officer, Richard Grasso. The Spitzer-inspired case against Grasso fell apart earlier this week under the weight of multiple negative appellate decisions.

The Journal deserves much credit for standing up to Spitzer’s bullying tactics when few others in the mainstream media were willing to do so. But what does the Journal say about turning a relative blind eye toward this even worse prosecutorial abuse?

The Future of Law Firm Advertising?

Clear Lake-area plaintiff’s lawyers Ron and Scott Krist use the YouTube video below to explain why helicopter crash victims should hire their firm. Not exactly To Kill A Mockingbird, but pretty darn effective nonetheless. By the way, I wonder who the defense attorney was that Scott got fired?

What’s the Difference?

Mel Weiss was sentenced to 2.5 years in prison yesterday for making undisclosed payments to class representatives in class action lawsuits that his firm handled. Weiss really didn’t have much of a choice given the trial penalty that he was facing.

Meanwhile, in return for being the key witness against former Enron CEO Jeff Skilling, Enron Task Force prosecutors “paid” Andy Fastow with a lighter prison sentence than the one the prosecutors disclosed to the jury and the judge during Skilling’s trial.

Those same prosecutors also withheld from Skilling’s defense team exculpatory statements about Skilling that Fastow made before he elected to accept the prosecutors “payment” of a lighter sentence and testify against him.

The lead prosecutors involved in arranging Fastow’s testimony have gone on to lucrative careers in private practice. Skilling is serving an effective life prison sentence.

As Larry Ribstein has long contended, paying kickbacks should not be condoned. However, the hyprocrisy reflected by the above-described state of affairs is not going to be solved by demonizing Mel Weiss.

The Bear Stearns lesson

Bear Stearns building at night Yesterday brought the final installment of Kate Kelly’s extraordinary threepart W$J series on the fall of Bear Stearns (Kelly also contributed to today’s story on Bear’s final shareholders meeting). My goodness, was Kelly a fly on the wall over at Bear’s office during all of this? Dear John Thain has an interesting critical analysis of the series here, here and here, while Larry Ribstein and John Carney point out that Kelly apparently fell for what has become known as "the loophole legend" in regard to JP Morgan’s buyout of Bear.

Although all the articles in the series are fun reading, Kelly’s most insightful observation comes from the second installment:

It was the beginning of a frantic 72 hours that would bring the Wall Street firm to its knees and threaten the stability of the global financial system.  .  .  . The brokerage’s sudden fall was a stark reminder of the fragility and ferocity of a financial system built to a remarkable degree on trust. Billions of dollars in securities are traded each day with nothing more than an implicit agreement that trading partners will pay up when asked. When investors became concerned that Bear Stearns wouldn’t be able to settle its trades with clients, that confidence evaporated in a flash. Trading partners, eager to avoid losses, began to disappear almost as quickly. That further fueled rumors of trouble. Some partners, spotting a chance to profit, made bets against Bear Stearns, helping accelerate its demise.  .  .  .

Even after the Bear Stearns lesson, our understanding of the pesky trust-based business model is still not what it should be. Improving the investing public’s understanding of how best to hedge the risk of investing in trust-based businesses is a far more productive response to Bear Stearns-type business failures than this

Opting out with meaning

Jerry Jones Earlier this week, the owners of the National Football League elected to opt out of the final two years of the league’s Collective Bargaining Agreement with its Players Association. The Mile High Report and Stacey Brook do good jobs of analyzing the impact of the owners’ election and neither believe that a lockout or strike is likely before a new deal is struck. My sense is that they are probably right, but I did chuckle when I saw this AmLaw Daily blog post on the owners’ decision in regard to hiring counsel for the upcoming labor negotiations:

.   .   . [The NFL owners] hired L. Robert Batterman of Proskauer Rose. Batterman is well known in labor circles for his National Hockey League work. It was Batterman who presided over the NHL labor negotiations that scuttled the league’s 2004-05 season, making it the first North American pro sports league to lose a full year to labor strife. "Batterman bullied [the union] into submission," says one sports labor lawyer who requested anonymity. "If one accepts the conspiracy theory of collective bargaining, this means the NFL must be looking for trouble," says another. [.  .  .]

No official negotiations have been held. But the hiring of Batterman sent a clear signal to the union. Gene Upshaw, president of the NFL Players Association, told SportsBusiness Journal in April that his "concerns were heightened" when he heard Batterman had been retained, noting that NHL players crumbled before Batterman’s hard line. The NFLPA’s outside counsel, James Quinn of Weil, Gotshal & Manges, says that the owners "have this bizarre notion that they want to get tough, so they go get Bob Batterman." (Jeffrey Kessler of Dewey & LeBoeuf is also counsel to the NFLPA.)

Doesn’t sound exactly as if the NFL owners are preparing to play nice, now does it? ;^)

Reflecting on the raid

eldorado_hi The Third Court of Appeals’ decision yesterday ruling that the State of Texas had illegally seized over 450 children from their homes at a polygamist West Texas ranch threw a large monkey wrench into the largest custody case in (at least) recent American history (the court’s decision is here). However, the decision is almost certainly the correct one. As Scott Henson has diligently reported over the past two months, the state’s case for taking such pervasive action was shaky, at best, and has clearly deprived many parents and children of their due process rights.

The appellate court concluded the state had offered no evidence that all of the children were in danger other than an investigator’s vague opinion that the church’s "belief system" encouraged teenage pregnancies. State investigators have identified 20 females at the ranch who had become pregnant before age 18, but most of them are now adults. "Even if one views the FLDS belief system as creating a danger of sexual abuse, there is no evidence that this danger is ‘immediate’ or ‘urgent’ .  .  . with respect to every child in the community, " the court observed.

As Henson has noted, Texas authorities’ handling of the case has been dubious from the get-go. The state raided the compound last month after a sobbing woman called a family-violence hotline and identified herself as a 16-year-old girl who had been forced into marriage at the compound. Authorities never found the girl and now believe the call may have been a hoax. Then, at a mass custody hearing in mid-April that can only be described as a gross miscarriage of justice, one of the state’s chief witnesses testified that he did not really know whether the young girls and boys removed from the ranch truly had been in danger. Given that context, the appellate court’s decision is not surprising.

Notwithstanding the foregoing, it is difficult not to feel a profound sense of sadness over the many women and children who are subjected to a stifling existence at the Eldorado compound by a relatively small number of sexual tyrants who hold sway over them. Anthropologist Lionel Tiger addressed the genesis of the cruelty recently in this Wall $treet Journal op-ed:

Continue reading

And you thought the Mitchell Report was ugly?

BALCO_GrayTee_Product So, the controversy over the Mitchell Commission Report has pretty much died down, right? Well, it looks as if another potential public relations nightmare is brewing for Major League Baseball:

Tucked away inside the United States attorney’s office in the Northern District of California are documents that link more than 100 major league baseball players to positive tests for steroids conducted in 2003.

The test results were meant to be anonymous, and a battle over access to them has wound its way through the federal court system. The players union has tried to protect its members by arguing that the government illegally obtained the information.

But now, more than four years after federal agents seized the test results as part of the investigation into the drug-distribution activities of the Bay Area Laboratory Co-operative, the government appears close to prevailing in the legal battle, which could set off another round of federal drug investigations.

According to a lawyer who spoke on condition of anonymity because the government’s plans are supposed to remain confidential, federal authorities will seek to question each of the 104 players about where and how they obtained the substance detected in their urine samples.

The authorities then intend to distribute the information they receive to federal prosecutors around the country.

Distributors, not users, have been the focus of the government’s investigations into performance-enhancing drugs ever since the authorities began seriously looking into the issue in 2002. But the 104 players would be asked to provide testimony — to federal agents or before grand juries — to lead investigators to the distributors. The players’ identities could become public if their testimony is used in government documents to obtain search warrants or to charge individuals. The players could also be called as witnesses at trials.

Regardless of how many of the 104 names eventually become public, the notion of simultaneous drug investigations being conducted by various federal attorney’s offices around the country would be a significant setback to Major League Baseball, which has struggled to get control of the issues related to performance-enhancing drugs. [.  .  .]

Read the entire article. The MLB Players Association has to be kicking itself for not insisting on the destruction of the "anonymous" drug tests, which were conducted during the 2003 season. Under public pressure to agree to some regulation of performance-enhancing drugs, the Players Association had agreed to the 2003 testing as a "survey" under which all players would be tested one time and 240 players would be randomly tested a second time with neither group being under any threat of punishment. Subsequently, discovery in connection with the investigation into the Balco case in Northern California transcended the deal between Major League Baseball and the Players Association, so now it appears that there is a good chance that a master list of all players who tested positive during the 2003 testing may well become public information. The list won’t be released tomorrow or even next week, so most of the mainstream media will continue to focus on such sideshows as the Mindy McCready affair. But you can bet that Major League Baseball and the Players Association can hear the clock ticking on this one.

Nice comeback

spence Legendary defense lawyer Gerry Spence is defending Geoffrey Fieger on campaign finance charges in Detroit. Former Spence student Norm Pattis flew into the Motor City and took in a day of the trial last week. He passes along the following exchange that occurred while Spence was cross-examining a government witness:

Spence:  "Can you tell me a case in the history of the world in which …"

Prosecutor:  "Objection."

Spence:  "Okay, the United States."

Pattis’ collected posts on the Fieger trial are here. Very interesting, to say the least.

Worth a watch

For those of you interested in the vexing issues involved in application of the death penalty and child predator laws, the scene below from Boston Legal is worth ten minutes of your time (H/T David Feige). I don’t agree with everything that Alan Shore says in his argument to the U.S. Supreme Court, and the scene is certainly far-fetched, but it’s a thought-provoking performance nonetheless:

 

The stench of injustice

innocence project of Texas Scott Henson reports on the 17th exoneration (see also here) of a citizen in Dallas who had previously been wrongly convicted. This time prosecutors withheld exculpatory evidence from the defendant’s lawyers and police failed to investigate it. New Dallas District Attorney Craig Watkins continues to investigate what appears to be have been a culture of abject injustice within the Dallas County D.A.’s office. I will not be surprised if there are more exonerations.

By the way, the rest of the country is noticing this outrage.