by TChris

A courageous judge stood up to the government by taking a case away from the jury and acquitting the defendant after concluding that the prosecution failed to show that a lawyer who accepted cash from clients knew that the cash came from drug crimes. U.S. District Judge Joseph L. Tauro said "Anybody could wait and see what happened and hope the jury would find him not guilty, then you wouldn't have to, but that's ducking responsibility."

Prosecutors are complaining that "Tauro's actions show that federal criminal rules need to be changed so judges cannot exercise unchecked authority." Nonsense. It is a judge's duty to protect the accused from an unwarranted conviction. The trial judge, who actually hears and sees the evidence, is in the best positon to decide whether a case should go to the jury. The power to acquit before verdict, while rarely invoked, is a vital protection against verdicts that may be based on sympathy or outrage rather than evidence.

"It's rare, I suppose because in most cases the government at least comes up with enough evidence, arguably, to go to the jury and then it's the jury that decides," [Chief U.S. District Judge William] Young said. "But sometimes they don't, and in those cases Rule 29 exists for the protection of the individual and properly so."

Prof. Douglas Berman wonders whether Judge Tauro may have been motivated, in part, by a desire to avoid the harsh and unjust sentence that might have been mandated by a conviction. Perhaps. In any event, the judge deserves praise for protecting an accused from an overreaching prosecution.

by TChris

Threatening a bank teller with a gun is a traditional bank robbery tactic. When the teller is behind bulletproof glass, however, the threat is less effective.

He put a mask on his face, pulled out a gun and demanded money. But when the bank clerk laughed in his face, the would-be robber was so humiliated he just ran away.

The lesson to be learned: look around inside the bank a bit before deciding whether to rob it.

Martha Stewart's lawyers are shopping publishers for her prison diary. This makes sense. Martha could get $5 million or so and use up hours of boring time writing it.

Bump and Update: She's in.

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The media has assembled.

Here is one from this morning when she surrendered. Another of her pre-dawn arrival.

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Original Post
Martha Stewart's Last Day of Freedom

Martha Stewart will surrender tomorrow to begin her 5 month prison term. Today is her last day of freedom for five months. For those who think "Camp Cupcake" is a walk in the park, it's not. It may not have cells with bars and razor-wired fences, but there is no way that inmates are not aware 24/7 that their choices and movements are restricted and they have very little control over their lives. Here's some of what Martha reportedly will face:

The process will begin as soon as Stewart voluntarily surrenders on Friday. Just like every other inmate at the minimum security facility, Stewart will be fingerprinted, photographed, and strip searched.

She will have to give a urine sample in front of the guards. She will be issued a prison uniform and black steel toed boots. She will be given bedding -- a pillow, sheets, a blanket and towels. She will be assigned a bed in one of the dorm-like facilities.

Her day will consist of:

Martha Stewart's attorneys today accused the Government of withholding critical evidence in her trial--evidence that came out this week at the perjury trial of ink expert Larry Stewart. Her lawyers say it could have led to an acquittal. You can read the ten page letter here (pdf.) Martha has new lawyers for the appeal, Walter Delinger of D.C., Marty Weinberg of Boston and David Chesnoff of Las Vegas.

For those who support Martha, here's what you can do to make a difference:

You can start today by subscribing to Martha Stewart magazines, or sending them as gifts to your friends. Don't forget Everyday Food! Subscribe or buy it each month at the grocery store.

Sign this online petition to the President to pardon Martha so she loses the felony conviction. [update: site or link currently not working]

A Florida state appeals court has ruled that Rush Limbaugh's records were properly seized.

Investigators raided the offices of Limbaugh's doctors seeking information on whether the conservative commentator illegally tried to buy prescription painkillers. Limbaugh, 53, has not been charged with a crime and the investigation had been at a standstill pending a decision on the medical records. "We hold that the constitutional right of privacy in medical records is not implicated by the State's seizure and review of medical records under a valid search warrant without prior notice or hearing," the 4th District Court of Appeal ruled. Chief Judge Gary M. Farmer wrote the opinion.

Is Rush being treated differently than other celebrity drug users who usually slip away into treatment without the cops all over them? It's hard to work up a lot of sympathy or righteous indignation for him or his predicament. On the other hand, I totally support his legal position. Background here and here.

Defense Lawyer Mickey Sherman is in the courtroom right now at the Scott Peterson trial in California. There is wi-fi in the courtroom and he's insta-messaging so I can put it up on TalkLeft. [Too bad we couldn't do this with the Supreme Court argument this morning.] Here's what he has to say.

MS: so they put on the Tidal Expert-----Dr. Cheng ---who was not great for the prosecution.

MS: On the stand now is Mike Richardson, friend of Scott and Laci for 7-8 years. He was best man at their wedding. He testified that Scott had changed his cars because he feared a GPS system had been placed on his car by the police. Further---he confirmed that Scott changed the color of his hair. He told us that Scott said it was the result of swimming in someone's pool.

MS: Now they have the guy on who owns the pool and hot tub that Scott supposedly swam in which turned his hair color. Scott had stayed at his home. On direct---he told the prosecutor that Scott never swam in the pool. On cross, he is now saying that Scott may have swam in his pool! This blockbuster testimony is barely keeping the jury awake!!!!

JM: Can you describe Scott when you have a second?

MS: Scott is very attentive to everything and speaking at times to Geragos who seems very much in control here. This morning, he very effectively took apart Dr. Cheng, the tidal expert who basically admitted that he really had never done any work like this before. In a very good-natured manner, Geragos had the entire jury laughing very loudly when Dr. Cheng said that his emails to the prosecutor are never fact checked or reviewed---Geragos remarked---"That's okay---that's why we have cross-examination!"

MS: No smoking guns here today in the last gasps of the prosecution case.

MS: I gotta get over to the MSNBC truck for Dan's show---grab you later.

MS signed off at 3:34 PM

So, if you're by a tv, turn on MSNBC and watch the Abrams Report.

The AP reports that the prison guards union is warning that it may not be able to protect Martha Stewart in jail:

The head of the guards union at the federal prison where Martha Stewart will serve her time said Monday that staffing shortages will make it difficult to protect her. Staffing at the minimum-security women's prison at Alderson has fallen from 60 guards four years ago to 35 because of budget cuts, said Kent Gilkerson, local president of the Council of Prison Locals. The prison houses about 1,000 inmates.

Is this an attempt by the union to make political hay by getting free publicity for their plight? Or is Martha really in danger at Alderson, known as Camp Cupcake?

Martha is smart. She will know before she goes in what the do's and dont's are. This is not rocket science. Plus, it's quite possible the women will want to befriend her hoping she returns the favor when she's out. She probably will have more protectors than she knows what to do with.

Of course, this also may be advance spin for justifying why Martha gets her own room and privacy, instead of sharing a dorm-type room...should that occur. If that's the case, we doubt it will because of her money or influence--it will be because of great lawyering by her new lawyers. We'll know in a few days, stay tuned.

Martha Stewart has been designated to the federal prison camp in Alderson, West Virginia. My clients have hated the place. Martha is putting a good face on it, more power to her.

"While I had hoped to be designated to a facility closer to my family and more accessible to my appellate attorneys, I am pleased that the Bureau of Prisons has designated me so quickly to FPC Alderson, the first Federal prison camp for women in the United States," Stewart said in a statement. "I look forward to getting this behind me and to vigorously pursuing my appeal," she added.

Why didn't she get Danbury or Coleman, as the Judge recommended? First off, judicial recommendations are not binding on the Bureau of Prisons. But take note of the "unnamed source" below:

The first jury trial of Enron execs is underway in Houston. The government's star witness so far is a former Enron exec who told the jury how he and others, including former Enron CFO Andrew Fastow, pillaged the company coffers:

Former Enron executive Michael Kopper spent much of Monday telling a jury about how he and others systematically looted Enron, concocting scheme after scheme to line their pockets with millions of dollars stolen from shareholders.

Kopper, 39, calmly and thoughtfully explained that in 1997 he and ex-Chief Financial Officer Andrew Fastow started to divert funds to themselves, family and friends by breaking laws, breaking internal rules, lying, manipulating and standing in the middle of deals.

So what was Kopper's role?

Kopper, who has pleaded guilty in 2002 to two counts of conspiracy, admitted he and his partner William Dodson stole about $16.5 million from Enron between 1997 and 2001. He said he helped loot about $45 million for Fastow and his family as well. And other friends got anywhere from $60,000 to $1 million, some after investing, others just because Fastow and Kopper wanted to pay them something.

What is Kopper going to get for his testimony? He's hoping for probation.

Kopper agreed with Dan Cogdell, lawyer for Enron defendant Sheila Kahanek, that if he had not entered into a plea bargain with the government he could have faced a life sentence for all his crimes. But Kopper said he hopes he might still get a probated sentence, despite the 15-year maximum he faces on his two charges.

Financially, Kopper isn't hurting either:

The judge in the Martha Stewart case has granted her request to begin serving her jail sentence now. She will report on October 8. The Judge also is recommending to the Bureau of Prisons that she be designated to either the prison camp at Danbury, Conn., or Coleman, Fla.

Martha Stewart announced today that she has asked the Court to lift the stay on her jail sentence so she can go in now. I assume that means bedspace has opened up at the women's minimum security prison camp in Danbury....or at a backup suggested by her lawyers, the low security prison at Coleman, FL.

When she gets designated, we'll post the address where you can write her. Also, she can get magazines from publishers. A magazine subscription would probably be a welcome gift, and one she can share with less fortunate inmates.