I’m not making this up. It happened in Miami at a federal sentencing hearing. Every defense lawyer’s dream. The criminal defense attorney cross-examining was Jeffrey Weiner. The DEA Agent is okay. Melissa Holsman of the Miami Herald has the story here.
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Every so often you see a story that makes you ashamed of the legal profession. Lisa Holewa of AOLNews reports here about Juneau County District Attorney Scott Southworth, who sent a letter threatening prosecution of sex ed teachers in his county if they comply with a new Wisconsin sex education law.
According to Holewa’s story, “In his letter, Southworth told school district leaders the new law promotes sexual assault of children, and warns that teachers who follow the law could be charged with misdemeanor or felony delinquency of a minor, with maximum punishments ranging from nine months in jail to six years in prison.”
Here is a copy of Southworth’s letter. Incredibly, the University of Wisconsin Law School gave this man a diploma. They must not have been screening for fanatics that year.
Southworth does not agree with the new law, the Healthy Youth Act, and is apparently proceeding under his own version of the nullification doctrine. Under the Southworth world view, if the district attorney in a county disagrees with a new state law, he can threaten criminal prosecution of anyone who obeys it.
Holewa reports that the Healthy Youth Act “requires schools with sex-education courses to teach students medically accurate, age-appropriate information, including how to use birth control and prevent sexually transmitted diseases.” Southworth maintains that a teacher who instructs a student 16 years of age or younger on how to use birth control devices under the Act could be guilty of contributing to the delinquency of a minor if the teacher knows that the student is already regularly engaging in intercourse or if the “natural and probable consequences” of the teacher’s instruction causes the student to so engage.
The idea that a teacher could be guilty of violating a Wisconsin criminal statute, for engaging in conduct mandated by a Wisconsin civil statute is absurd. This is one of the most sickening examples of politicizing the criminal justice process that I have ever seen.
Southworth is a disgrace to the legal profession.
Yesterday’s Washington Post reports here on the withdrawal of President Obama’s second nominee to head the Transportation Security Administration. Retired U.S. Army Major General Robert A. Harding withdrew his nomination after Senators raised questions about his contracting firm’s $1.8 million over-billing of the government. The Post article also reveals that Harding’s firm won a set-aside contract valued at almost $100 million dollars. The set-aside was for firms owned by service disabled veterans. Harding’s service related disability is purportedly sleep-apnea. The withdrawal caught the Obama Administration by surprise. No word on whether an investigation of Harding is in the offing. The previous nominee, Errol Southers, withdrew his nomination in January after providing misleading information to Congress about an incident in which he improperly accessed official information.
The NYTimes has the story here. Justice was done, unsurprisingly, by the jury. But the prosecution of Mitchell by County Attorney Scott Tidwell was: a disgrace, a gross abuse of prosecutorial power, and a black mark on Texas criminal jurisprudence. I will have more to say about this in a later post. For now, congratulations to Nurse Mitchell and her legal defense team.
Beau Berman of CBS7News in West Texas reports here on the day two (yesterday) testimony in Nurse Anne Mitchell’s Texas criminal trial for misuse of official information. This is a truly disgraceful prosecution. The county attorney should have declined to bring it and the court should never have allowed it to get to a jury.
The New York Times reports here on the abusive Texas state criminal prosecution of nurse Anne Mitchell for doing the right thing. Mitchell properly and lawfully reported a doctor, who had privileges at the hospital where she worked, to the Texas Medical Board. When the Board informed the doctor, he promptly told his friend, the country sheriff, who helped to engineer Mitchell’s felony prosecution. You might think that somebody with a law license, say the county attorney or D.A., would step in and prevent such nonsense. You would be wrong.
The Washington Post’s Gene Weingarten has a fascinating column here about his recent experience as an alternate juror in DC Superior Court. Weingarten would have voted to acquit, in a $10 heroin buy-bust, despite his certainty beyond a reasonable doubt that the defendant was guilty. Why? Weingarten was equally certain that the officers who testified for the prosecution lied in a key portion of their testimony. Weingarten figured that he was the only juror or alternate who felt this way, but the jury hung 10-2 in favor of acquittal. The prosecution decided not to re-indict. The defendant was represented by the incomparable Jon W. Norris, who established that the police officers’ testimony about how they identified the defendant could not have been accurate.
Weingarten’s experience as a Superior Court juror was similar to mine. Amazingly, the prosecutor did not move to strike me, despite my status as a criminal defense attorney. The other jurors and I listened to a day and a half of testimony and argument in a gun possession case, and almost immediately voted to acquit, because the lone police officer’s story was simply not credible. I didn’t have to do any arguing. Nobody did. We all walked backed to deliberate, took a vote, and found that it was 12-0 for acquittal.
Here is a moving year-end post from Connecticut criminal defense attorney Norm Pattis.
The Washington Post reports here that the Salahis have (wisely) decided not to testify in front of the House Committee on Homeland Security. They have also lawyered up with Dewey & LeBoef, since, among other things, their original lawyer (Paul W. Gardner) has become a witness. This new-found silence is probably too little too late, given the couple’s two-day interview with the Secret Service. Meanwhile, the Post reports here that the Washington Redskins Cheerleaders Alumni Association is livid, because Michaele Salahi performed with the group at a September 20 halftime show. Turns out that Michaele never was an actual Redskins Cheerleader. She lied her way onto the alumni group’s membership list. Even worse, ”she was too tall and couldn’t dance.” And, this just in, the Post reports here that the State of Virginia is now investigating the fundraising activities of America’s Polo Cup, a Salahi-run business entity that raises funds for the Salahis’ charity, Journey for the Cure. The Post had previously reported that the Salahis left a long line of vendors with unpaid bills related to America’s Polo Cup events. Let’s hope Dewey & LeBoef got its money up front. The White House wants the story to go away. It won’t.
Today’s Washington Post reports here on the dubious history of Tareq and Michaele Salahis’ annual charity polo event and their Journey for the Cure foundation. According to the story, the Salahis stiffed a number of vendors who worked on the event and misrepresented the extent of corporate sponsorship. The Land Rover America’s Polo Cup web site lists some sponsors, including Land Rover, who “say that they are not sponsors for that event.” Plenty of material for any federal law enforcement types intent on ginning up a prosecution.
Here is the latest news from the Washington Post about Michaele and Tareq Salahi, the social-climbing Northern Virginia “power couple” who revealed to the world how easy it is for just about anyone to slip into the White House and gain access to the President during a state dinner.
Initial stories about the Salahis’ caper quoted U.S. Secret Service sources to the effect that a criminal investigation was in the works, but nobody said what criminal law the couple may have violated.
Now some press accounts are trudging out 18 U.S.C. Section 1001, as a possible prosecution vehicle. I have written extensively over the years about Section 1001, the statute that criminalizes lying to government agents. Okay, I’ve actually written one article and revised it several times.
Section 1001 literally covers ”whoever, in any matter within the jurisdiction of the executive, legislative, or judicial branch of the Government of the United States knowingly and willfully–(1) falsifies, conceals, or covers up by any trick, scheme, or device a material fact; (2) makes any materially false, fictitious, or fraudulent statement or representation; or (3) makes or uses any false writing or document knowing the same to contain any materially false, fictitious, or fraudulent statement or entry.”
Whether the Salahis’ conduct on the night of the state dinner fits into one of these subsections obviously depends on the particular circumstances of their case. But the Salahis have apparently made it infinitely easier for the government to prosecute them under Section 1001. The New York Times reports here that the Salahis submitted to interviews, over the course of two days, with Secret Service agents.
Unless they were immunized beforehand, a highly unlikely scenario, submitting themselves to these interviews was a really stupid thing for the Salahis to do. Lying to a government agent during an interview, even if you are not under oath, is a crime under Section 1001, as long as the lie is material. The materiality threshold under the statute is very low. Indeed, most of the abuse that takes place under Section 1001 arises from the prosecution of people who allegedly fibbed during interviews with government law-enforcement agents.
The Salahis were under no obligation to talk to the Secret Service. There was no upside to such an interview. The Secret Service is embarrassed and out for blood. It’s hard for me to believe that the Salahis enjoyed the services and advice of a criminal attorney prior to their Secret Service interview. Of course, sometimes clients do unwise things, against the advice of counsel. The Salahis crave publicity and are doing everything within their power to milk their 15 minutes of fame.
I have long complained about the breadth and misuse of Section 1001. In a government of purportedly limited and enumerated powers, the idea of criminalizing a simple lie to any federal agent who comes knocking at a citizen’s door is appalling.
On the other hand, the Salahis’ conduct on the night of the state dinner, assuming that they were uninvited, is not funny in the least. It sent a terrible signal to the world about Presidential security. Nor should the Salahis be celebrated in any way. The couple actively engaged in a planned and publicized effort to enter the White House complex. If they lied in order to do this, and if their conduct clearly falls within an appropriate criminal statute, they should be prosecuted.
Pardon my absence, but, in addition to my regular day job, I have had the honor this week of serving on a petit jury in a DC Superior Court criminal trial.
On June 8, my birthday, I reported for grand jury duty and talked my way out of it, once I learned that the grand jury panel would have to meet all day every day for 27 calendar days, straight through until July 10. Who in the world has time for such a schedule? When the clerk told our group that we couldn’t sit on the grand jury if we had a pending felony or misdemeanor charge, I offered to step outside and commit a misdemeanor. She was not amused.
The price for talking my way out of the grand jury was a trip to the petit jury panel, where I was sure I would be struck since I do criminal defense work. Wrong! The defense wanted me on and the AUSA figured that my past life as a prosecutor rendered me safe.
The trial, which involved charges related to the carrying of an unlicensed firearm, was presided over fairly, patiently, and masterfully by the Honorable John H. Bayly, Jr. Both the prosecutor and defense attorney were young, earnest, and competent.
My fellow jurors were pleasant, and we tried our best to listen attentively to the evidence and the court’s instructions. We deliberated about thirty minutes and acquitted the defendant of all charges.
After a career as a trial lawyer, this was my first experience as a juror. It was a very simple case, with only two witnesses for the government and none for the defense. What really hit home for me was how irritated I became when either side wasn’t ready to proceed. It is one thing as a trial lawyer to intellectually understand that jurors get annoyed at delays. It is quite another thing altogether to experience that annoyance as a juror. This is something I intend to keep in mind. Not that I’ve ever caused any unnecessary delay.