November 20, 2009

Listen up, all you prisoner litigants

Convicted bank robber Ronald Mitchell is the epitome of the abusive litigant. As the D.C. Circuit Court of Appeals noted Friday:

"(Mitchell) has filed at least sixty-five unsuccessful lawsuits and appeals in the federal courts, virtually all of
which challenged the legality of his conviction."

Vexing!

And in the ruling, the appellate panel rejected Mitchell's latest effort to proceed in forma pauperis. In other words, citing Mitchell's vexingly long litigation history, the appellate court said he'll have to pay his full court fees if he wants to continue.

But here's the thing. It appears that while Mitchell lost his latest court bid, his student counsel -- Sara Kaiser of the Georgetown University Law Center -- secured some useful precedent for other prisoners. Here's why.

Even as it rejected Mitchell's suit, the appellate panel led by Judge David Tatel concluded that "prisoners who face imminent danger of serious physical injury" may be exempted from the limits imposed on abusive prison litigants. As the panel states:

"Although IFP status may be constitutionally denied to prisoners who have abused the privilege...recognizing an imminent danger exception eases any constitutional tension that might result  from denying access to the courts to prisoners facing life threatening conditions."

Mitchell couldn't make this cut, but other prisoners in the future might. So here's a case, it seems to Suits & Sentences,  that Kaiser and her fellow student counsels -- James E. Burke, Tony Diab and Prashina Gagoomal -- as well as professor Steven H. Goldblatt might reasonably consider a short-term loss and a long-term victory.

Anti-Bush protesters' ruling tossed by DC Circuit

The D.C. Circuit Court of Appeals has now delivered a victory for Washington, D.C. police accused of violating the constitutional rights of Washington, D.C. protesters.

Mass arrests will now be easier than ever.

In a ruling Friday, a somewhat divided three-member appellate panel partially reversed a trial judge's 2008 decision that the police had acted improperly when they conducted a mass roundup of demonstrators. Activist Sarah Carr and others had filed a class action suit, alleging the January 2005 roundup violated their First and Fourth Amendment rights, in part because police hadn't individually identified wrongdoing by each individual picked up in the sweep..

U.S. District Judge Ellen Segal Huvelle had partly agreed, ordering the arrest records expunged. But now the appellate panel says: No so fast.

The panel members go into considerable detail about the riotous behavior of some demonstrators -- "Commander (now DC chief, Cathy) Lanier saw a number of marchers use their flaming torches to set fire to debris in trash containers along the street and the undercover officer witnessed marchers spray painting buildings and cars" -- before reasoning that police acted appropriately.

The bottom line: You will be judged by your associations if you are part of a crowd. Or, as the appellate court stated:

"Police witnesses must only be able to form a reasonable belief that the entire crowd is acting as a
unit and therefore all members of the crowd violated the law. A requirement that the officers verify that each and every member of a crowd engaged in a specific riotous act would be practically impossible in any situation involving a large riot."

November 19, 2009

Bribes for oil for food for terror

A lawsuit charging that notorious well-known Texas oilman Oscar Wyatt, Jr. facilitated Iraqi acts of terror by paying bribes is now being transferred to Wyatt's home turf.

On Thursday, in what appears to be a victory for Wyatt's defense team, U.S. District Judge Henry H. Kennedy, Jr. agreed to toss the lawsuit over to the Southern District of Texas. Reasoned Judge Kennedy:

"The major activities associated with the surcharge scheme that underlies plaintiffs’ claims, including the execution of oil contracts, occurred in Houston."

This case is amazing, though perhaps a long shot. Odelia Abecassis and other plaintiffs claim Wyatt and several oil companies knowingly paid illegal surcharges to the Government of Iraq and knew that the surcharges would be used to support and promote terrorist attacks.

Surcharges. That's one word for it. Wyatt ultimately pled guilty and served time in prison on charges related to illegally paying millions of dollars to Saddam Hussein's regime in exchange for rights to Iraqi crude oil. According to the lawsuit, "defendants knew that the Saddam regime used this money to initiate a 'financial reward and incitement program which rewarded the families of ‘martyrs’ and suicide bombers' in an effort to “'incentivize' acts of terrorism."

Showing this knowledge, and demonstrating a link between the surcharges and the terrorist incentive program appears pretty challenging, to Suits & Sentences' amateurish way of thinking. In any event, it's now going to be resolved near Wyatt's neck of the woods.

Hollywood grunt learns hard lesson: Trust no one

Hollywood. The land of broken dreams and broken promises. Where you hold your friends close and your enemies closer. Where betrayal and backstabbing comes with the turf. Where..

You catch the drift. We're totally talking Noir City.

So now, add Kristen Lewandowski to the roster of the disenchanted. A case recently decided by a Department of Labor Administrative Review Board lays bare Lewandowski's sobering introduction to the ways of the entertainment world. Unfortunately for Lewandowski, she lost her whistleblowing complaint against Paramount Pictures. Fortunately for those who seek to understand how the real world works, her complaint sheds light on the business.

Paramount hired Lewandoswki in May 2005 as a story editor in its Literary Affairs Department in New York. She was responsible for reading books and attending theater productions, and then advising Paramount executives about which might be turned into motion pictures.

Sounds kind of fun, though it's probably a real grind.

Lewandoswki reported to then-vice president Patricia Burke. She subsequently claimed, though, that Burke was leaking the contents of the production memos to employees of other potential producers like Scott Rudin. Lewandowski complained and was subsequently fired; she says, for blowing the whistle.

Burke left Paramount in January 2008, after 17 years; she since joined a firm called InkWell.

The Administrative Review Board, though, determined that Lewandowski's complaints about alleged corporate disloyalty didn't really relate to defrauding shareholders. Hence, she wasn't covered by the federal whistleblowing statute.

Fine. All Suits & Sentences is saying is: Hollywood reporters and insiders might want to check out the complete case file on this baby.

November 18, 2009

Justice Kennedy and the press

The Wall Street Journal's Jess Bravin has this follow-up to the much-blogged about New York Times' story on Justice Anthony Kennedy and the high school press.

Suits & Sentences was struck by Justice Kennedy's stated concern for the health of the mainstream media; in particular, one Sacramento-based newspaper company with which Suits & Sentences has more than a passing acquaintance. Saith the justice:

"I am very worried about newspapers," he said, citing financial problems at the McClatchy Co. based in his hometown of Sacramento, Calif., which has encountered trouble since its purchase of the former Knight-Ridder chain. Local newspapers, he said, are laying off journalists, and many no longer have dedicated police and court reporters to cover goings-on in the justice system."

Suits & Sentences believes the time may now be right to ask for a pity interview with the justice.

Justice Dept. wants spook case ruling terminated with extreme prejudice

Attorney Brian Leighton won a $3 million settlement for his client, former Drug Enforcement Administration agent Richard Horn. The case, some 15 years after Horn claims the CIA illegally eavesdropped on him in Burma, is now done.

Almost.

Now, Leighton and the Justice Department are continuing their long-running fight. This time, they are wrangling over whether Judge Royce Lamberth should dump vacate earlier court orders citing CIA employees for committing a "fraud on the court." Judge Lamberth was very unhappy with what he believed was a series of misleading filings made by top CIA employees.

With the case dismissed, Justice wants the earlier court orders dropped into the memory hole. Not so fast, Leighton says in his latest filing.

Argues Leighton:

"The Court’s January 15, and February 6, 2009 orders were clearly justified by the Court, based upon substantial evidence. They are important to future litigants, law scholars, students, Congress, the Executive Branch, and the public in general and are important as they pronounce an example of the government when it does not cut square corners – as it insists the public and Horn do – and remain responsible for its fraud on the Court."

With Judge Lamberth involved, this one remains worth watching.

November 17, 2009

Judge declines to order Iraq security for Blackwater defense team

Iraq is a dangerous place, even for -- perhaps, especially for -- the heavily armed men of Blackwater Worldwide Xe. That complicates the work of attorneys defending five Blackwater guards accused of killing 17 Iraqi civilians in Nisur Square in September 2007.

As U.S. District Judge Ricardo Urbina notes in a new ruling:

"This danger is only magnified for the defense team, given the notoriety of the Nisur Square shooting among the residents of Baghdad and the disdain with which the defense team’s cause is likely to be viewed by some in that city."

Judge Urbina, nonetheless, has now rejected the defense attorneys' request that he order the U.S. government to provide full-bore security services for the defense investigative team. As Judge Urbina noted:

"The defendants contend that they cannot conduct their investigation and have fair access to witnesses and evidence without security, which they cannot obtain in the war zone of Iraq without the government’s assistance. The defendants assert that American lawyers and investigators working in Iraq face mortal danger (especially) given the notoriety of this case in Baghdad."

Urbina, though, sided with the government in concluding that private security firms would be perfectly capable of protecting the Blackwater team.

November 16, 2009

Former federal prosecutor still soldiers on in complaint against ex-bosses

Former federal prosecutor Richard Convertino is still immersed in his effort to find out who leaked information about him to the Detroit Free Press. This case has been going on for five years now, and from the looks of things will not end soon.

On Monday, U.S. District Judge Royce Lamberth declared he would examine in camera some potentially relevant Justice Department documents. The ruling itself is simply a procedural development, but it's a reminder of how long this sensitive dispute has been roiling.

Convertino says someone in Justice sought to smear him by leaking information about an Office of Professional Responsibility investigation into claims that Convertino had withheld potentially exculpatory documents. The Free Press's David Ashenfelter reported on the investigation Jan. 17, 2004. As Judge Lamberth reported:

"Following the leak, the Office of the Inspector General (“OIG”) began an investigation to determine who provided the information to the press, ultimately concluding that there was insufficient evidence to prove, by a preponderance of the evidence, who the leaker was."

As part of his claim, Convertino seeks 736 Justice Department documents. You know, the kind that might say something like: Memo for the file, here are the secret documents to leak to our friendly reporter.

While noting pointedly that "plaintiff has failed to make a viable claim to a grand cover-up -- failing to provide any evidence of suspicions of wrongdoing during the investigations," Lamberth agreed to privately review some documents for potential release to Convertino.

November 13, 2009

Gregory Craig: Here's your gold watch and kick in the rear

From the White House, announcing the throwing-under-the-bus-of departure of White House Counsel Gregory Craig:

Greg Craig is a close friend and trusted advisor who tackled many tough challenges as White House Counsel,” said President Obama. “Because of Greg’s leadership, we have confirmed the first Latina justice on the Supreme Court, set the toughest ethics standards for any administration in history, and ensured that we are keeping the nation secure in a manner that is consistent with our laws and our values.

I’m indebted to Greg not only for leading the Counsel’s office but for his many decades of service to this country as well. He has been a huge asset in the White House, and he will be missed. I will continue to call on him for advice in the years ahead.”

Gregory Craig to be gone: It was foretold

The Washington Post reports today that White House Fall Guy Counsel Gregory Craig is expected to announce his resignation.

Suits & Sentences called this back on Sept. 25, following what was at the time a Rahmianesque undercutting of Craig's White House standing. The point at the time of the September posting: White House rivals colleagues of Craig had taken to the front page of the Post to anonymously pin on him the blame for Guantanamo Bay foul-ups and, more pointedly, to make the point that Craig was losing his seat at the proverbial power table.

By so bluntly undercutting Craig's authority at the time, the hard men who wanted him gone set ticking the clock that is now about to ring.