From our Publisher: Call it the “Mystery of the Missing Memo”

Sara Corcoran, Founding Publisher of the National Courts Monitor & California Courts Monitor

Sara Corcoran, correspondent and contributing editor, as well as founding publisher of the National Courts Monitor, is sleuthing to find a missing article about the so-called “Baron & Budd witness coaching memo,” which has gone missing from Wikipedia, where it resided for years.

Writes Sara in Huffington Post:

“The ‘Terrell memo,’ as it is also known in honor of the paralegal who is said to have written it, has been a standard and controversial document in asbestos litigation circles for at least a decade. Most recently, it was cited by a federal judge in North Carolina who found evidence of evidence suppression in a landmark bankruptcy case known as Garlock. Critics of the memo say it leads witnesses to lie; defenders say its just good legal work… The memo is also part of a current Texas civil lawsuit by Dallas journalist Christine Biederman. Earlier this year, when a Texas judge refused to unseal the testimony given by a prominent victims’ attorney named Russell Budd some 20 years ago, the journalist called it a ‘travesty.'”

Read more: https://www. it-the-mystery-of-the-missing- memo_us_ 5a312d74e4b04bd8793e95fd

Title 18 Sec 201: Corruption Code Stuck in Error Mode

Sara Corcoran, Founding Publisher of the National Courts Monitor & California Courts Monitor

By Sara Corcoran, Washington DC Correspondent

Title 18 Section 201 is a relatively unknown section of the federal criminal code related to the bribery of public officials and witnesses. Its interpretation and limitations still impact some of the higher profile public officials.

The federal bribery statute, 18 U.S.C. Sec. 201, which is overly broad and vague, makes it a crime for a public official to “receive or accept anything of value” in exchange for being “influenced in the performance of any official act.”

U.S. prosecutors have aggressively tried to ensnare several political titans including Democrat Sheldon Silver, former Republican Gov. Bob McDonnell (VA) and Democrat Sen. Bob Menendez (D-NJ) in the trap of Section 18 and failed. Silver, a former New York Assembly Speaker and McDonnell were  exonerated on appeal.

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Silver was charged in a 2015 bribery case for accepting $4 million in kickbacks disguised as legal payments from law firms. Although he was found guilty, Silver appealed.  His appeal centered on improper jury instructions as jurors were told that “any action taken or to be taken under color of official authority” should be considered an official act. This broad interpretation coupled with charges misleading the jury on the definition will make it challenging to ever refile a case against Silver. And, if a prosecutor tries to go against Silver again, using new or different charges, chances are that that prosecutor will hit a solid wall put up by the Supreme Court’s recent decision in United States v. Mcdonnell.

In that case, Chief Justice John Roberts opined that common interaction between public officials and the public, while it may be  tawdry or distasteful, does not rise to the definition of criminal activity unless tied to a specific quid pro quo involving a contract or legislative bill.

In 2014, McDonnell was charged and convicted of federal corruption when he received favors, money, loans and gifts totaling $170,000.00 from Star Scientific  CEO Jonnie R. Williams Sr. Prosecutors argued that these items influenced official acts. But in a vote 8-0 in favor of McDonnell, the precedent is clearly established.

Under this standard, the Sen. Menendez case should never have been filed or should have been withdrawn prior to trial. Government lawyers spent more than two years  and millions of dollars compiling a criminal case that simply couldn’t stick as evidenced by a  jury vote of 10-2. In the 11th week of trial at the 11th hour of jury deliberations, the judge declared a mistrial. It is to be hoped that prosecutors do not waste further resources trying to exploit a 20-year friendship between between a senator and an eye doctor.

Another contentious case, which would never have been brought post-McDonnell,  involves former Washington D.C. City Councilman-at-large Michael Brown, the son of former Commerce Secretary and former Democratic National Committee Party chairman Ron Brown. Unwilling to incriminate others in a government deal and finding his band account looted by a campaign aide, Brown chose a plea deal and prison.  In doing so, he waived his right to appeal and to have his case reviewed under the new “McDonnell Standard.” His only option now is to ask for a presidential pardon.  Brown has a book documenting his experiences scheduled for release in 2018 and wouldn’t be surprised if Silver, McDonnell and Menendez aren’t far behind on the book circuit.

The reality is that SCOTUS has narrowed the reach of the statute. The layman’s definition of corruption has changed and we all need to adjust our cognitive dictionaries so that public perception of public official corruption aligns with its legal definitions. In other words, the Supreme Court has narrowed the statute but many overzealous prosecutors are trying to indict with broadened interpretation of the statute.

A suggestion for the DOJ from a wonkish journalist: please stop mining this code. It simply isn’t worth it. There is a high probability that even if DOJ manages to secure a conviction on a public official bribery case, it will be overturned on appeal. Many of these cases are politically motivated by the DOJ, which should only look at the evidence. So let’s not waste taxpayer dollars on unsustainable political witch hunts. Let journalists do their jobs in exposing potential corruption so that the voters have the information to decide who they want in office, not prosecutors.

No resolution expected for ‘Dreamers’ by end of year

Photo by John Gastaldo/Reuters as included in the PBS report on Dec 5, 2017.

The status of recipients of the Deferred Action for Childhood Arrivals program — commonly known as Dreamers — likely will remain in limbo until 2018, as members of Congress spar over Immigration reform and a potential government shutdown.

“Top Democratic lawmakers dismissed Tuesday a compromise bill offered by Iowa Republican Sen. Chuck Grassley that would give protections to younger illegal immigrants in exchange for long-term immigration reform,” reported the right-leaning Daily Caller in a Dec. 5 update.

“Grassley’s so-called SECURE Act would implement several policies long favored by conservative immigration reformers, most importantly the mandatory use of e-Verify and limits on family-based migration.

In return, the law would grant recipients of the now-cancelled Deferred Action for Childhood Arrivals (DACA) program relief from deportation and work authorization for three years.” Democrats call the bill’s conservative provisions non-starters.

Grassley, in a Senate Floor statement about the SECURE Act on Dec. 5, referred to “the inherent unfairness in our nation’s immigration court and asylum adjudication systems, and how hundreds of thousands of aliens wait in backlogs for years at a time.”

The bill, he said, would “take meaningful steps to reduce immigration court and asylum adjudication backlogs by hiring more judges and personnel, limiting the number of continuances an immigrant can receive, and imposing new safeguards to combat well-documented fraud and abuse.”

Based on the tenor of talks in Congress, however, no quick solutions are expected for the court backlog.

Negotiations over immigration reform are being tied to funding of the federal government, prompting some to predict a delay in dealing with DACA.

Discussing immigration-reform negotiations, Senate Majority Whip John Cornyn told reporters, “I hope our colleagues on the other side of the aisle will take our word for it as demonstrated by our good faith in making an offer to them that we do want to resolve this, but it’s not going to be before the end of this year,” according to CNN.

Others want quicker action on DACA. A group of 34 House Republicans on Tuesday asked Speaker Paul Ryan to act this month on legislation “dealing with the 800,000 young immigrants brought to the United States as children and living here illegally,” noted a PBS report. “Ryan has said he does not see a need to act before March, the deadline President Donald Trump gave Congress to find a permanent solution after he suspended the temporary protections against deportation granted by the Obama administration.”

But CNN reported, “There is a growing recognition on Capitol Hill that including immigration provisions to protect DACA recipients in the year-end spending bill could be a deal breaker for Republicans even as some Democrats in the House have threatened to vote against a spending package that doesn’t include it.”

To avert a government shutdown, the House and the Senate voted Thursday for a short-term spending bill “to keep the federal government running for another two weeks,” CNN reported.

Law Firms Eager to Solicit Victims of California Fires

Photo Credit: Jim Wilson/The New York Times as reported by the New York Times on 10/20/17.

Where there’s smoke, there are lawyers. From the Press Democrat in Santa Rosa, Calif., comes a wry acknowledgement that the record-setting wildfires that devastated California’s wine country set the table for a legal feeding frenzy.

“After the limitless demonstrations of valor, selflessness and generosity, we now witness a flood of offers from lawyers from down the block and across the nation to advocate for victims of our greatest disaster — and for an ample share of any judgments or settlements. …” notes the article, titled “Chris Smith: First came the heroes, then the helpers, now the lawyers.”

“There are law-firm solicitations on the radio, on billboards, in newspapers, on Facebook, everywhere you look.” The article quotes Baron and Budd, a multi-state law firm, which chronicles the fire damage at its website. Baron and Budd reports, “The human costs of the recent Northern California wildfires were staggering, with 43 people losing their lives. Approximately 6,000 acres were burned and more than 8,400 structures destroyed. As a result, the dollar amount of damages could be in the billions.” The firm cites “reports that equipment owned and maintained by Pacific Gas & Electric (PG&E) may have played a role in causing the disaster.”

The Press Democrat notes, “The eagerness of the lawyers trolling for clients is pretty clearly related to the blood in the water: the possibility that PG&E may not have adequately maintained and protected its power lines.”

In the aftermath of the fires, The New York Times on Oct. 20 noted, “Determining the causes of the fires could have huge financial implications in deciding who ultimately pays for the extensive damage, including almost 8,000 structures destroyed. Insurance companies will be looking to recover some of the more than $1 billion that the California insurance commissioner estimates they could end up paying out.”

Delaware Report Recommends More Funding for ‘Civil Gideon’

A Sacramento Police officer makes a traffic stop in November 2012. Gov. Jerry Brown signed a bill in June to end the practice of Californians losing their driver’s license because of unpaid traffic fines. Photo Credit: Rich Pedroncelli / AP as reported by Los Angeles Times, 6/29/17.

Another year brings another report about the need to improve access to civil courts for low-income residents.

A court-mandated legal commission in Delaware capped a two-year investigation this fall and issued its recommendations, agreeing the system is unfair to those in poverty.

In a 102-page report, the Delaware Access to Justice Commission urged equal justice under the law, “calling on the state Legislature, courts and law firms to divert more resources to provide poor people with legal aid, including additional hours of pro bono (without payment) representation,” according to a news report.

“The Delaware Supreme Court ordered the creation of the commission in 2014 to identify where access to justice fell short and to provide recommendations for cost-effective solutions,” reported The News Journal.

“The cost for a lawyer, which can add up to tens of thousands of dollars for civil cases, is prohibitive for most of the 123,000 people who live in poverty in the state,” commission members said. “The phenomenon also is a problem nationally where more than 40 million people live in poverty, according to data from the U.S. Census Bureau.”

Some states are trying to address this problem. This summer, California passed a bill ending driver’s license suspensions for unpaid court debt. Instead, courts can arrange a payment plan, a reduced payment, or community service for those who cannot afford to pay but can no longer suspend driver’s licenses for failure to pay. In Michigan, a package of bills has been introduced by the legislature that would help those with unpaid traffic debt to get their licenses back.

According to The Marshall Project, “Most of the movement on this issue began in the last two years, sparked by a Department of Justice investigation into the predatory practices of the Ferguson, Mo., municipal court. The report, issued in 2015, found that the local police and court system were run with an eye toward maximizing revenue, often on the backs of those who could least afford it.”