Former S.D. Congressman Bill Janklow lost his bid for an appeal bond and must serve his 100 day jail sentence before his appeal is heard. He's in jail now, and his sentence is expected to be up in May.

In an unusual twist, at the request of the U.S. Attorney, the Government is seeking to replace Janklow as the defendant in the civil suit brought by the victim's family--which would make the U.S. --i.e., the taxpayers--and not Janklow responsible for the damages.

The U.S. Attorney says Janklow was on official government business. Apparently, he was giving a political speech at the time. That's official government business? Why would the U.S. want to step up to the plate in this case?

by TChris

Paul Minor, a Mississippi lawyer, has been indicted in federal court for an act that the government deems corrupt: guaranteeing and partially paying a $75,000 loan to a judge's former wife. The judge in question, Mississippi Supreme Court Justice Oliver E. Diaz Jr., did not participate in any case involving Minor after the loan was guaranteed, but the government contends that Justice Diaz repaid the favor by joining a unanimous decision that benefitted Minor's father, who was a defendant in a libel case.

Whether or not the government can prove that Minor expected to receive such an attenuated benefit from Justice Diaz, the financial relationship between Minor and Justice Diaz doesn't pass any reasonable smell test. Nonetheless, Minor contends that the government's motive for prosecuting him carries a much ranker stench.

Mr. Minor, a former president of the Mississippi Trial Lawyers Association, contends that the United States attorney here, Dunn Lampton, a Republican, singled him out for prosecution for political reasons, because he is a big contributor to Democratic candidates and a vocal opponent of efforts to limit injury awards.

Minor asserts that Richard Scruggs, a Mississippi plaintiffs' lawyer who happens to be married to the sister of Trent Lott's wife, also guaranteed and paid off a loan to Justice Diaz. The difference between Scruggs and Minor is that Scruggs' law firm had two cases pending before the Mississippi Supreme Court at the time. So why isn't Scruggs being prosecuted by the U.S. Attorney who is so eager to pursue Minor? This is the answer given by Minor's lawyer:

"When the Republican U.S. attorney looks at Republican supporter Mr. Scruggs's actions, he sees them in a way that avoids any criminal overtone. When the same U.S. attorney looks at Democrat Paul Minor's actions, he sees racketeering. This is just not right."

The U.S. Attorney's office argues that Minor is basing his selective prosecution defense on unreliable news reports and "innuendo," although there seems to be a good deal of "innuendo" involved in the charges against Minor given his lack of any direct benefit from Justice Diaz.

If it doesn't derail before then, the case is set for trial in August.

by TChris

Sheriff's deputies in Cleveland County, North Carolina arrested a 96 year old woman when, during the execution of a search warrant at the house she shared with her son, the deputies found crack cocaine in her wheelchair. The search was prompted, at least in part, by an informant's assertion that the woman had hidden drugs in her prosthetic leg during an earlier search.

The woman, who has no criminal record, denied knowledge of the drugs.

New York Magazine this week has a section with comments by friends of Martha Stewart and Peter Bacanovic. One thing we learned was that Martha and Peter had their own rooms on the 4th floor of the courthouse, where they could visit with friends, have food brought in, etc. Christopher Mason, a loyal friend of Bacanovic's who expected to testify but was not called as a witness, had this to say:

For five weeks, Peter’s and Martha’s friends and family had been crowded into the front left row of the courtroom, which was reserved for guests of the defendants. ....Upstairs in adjoining private lunchrooms on the fourth floor, there was a notable class divide when it came to refreshments. The fare in Peter’s room extended only to chicken salad and cheesecake. In Martha’s room, there was a veritable emporium of goods supplied by Russ & Daughters, the famous Lower East Side deli that’s been featured on Martha’s TV show. Here we found brisket, corned beef, and pastrami sandwiches; coleslaw; and delicious green-tomato pickles. The domestic diva wandered from room to room, chatting with Peter’s distraught parents, inviting everybody to try the macaroons.

We wonder what kind of clout it takes and with whom to be able to get two rooms in a courthouse set aside for use of the defendants. We didn't have it for the Don King trial in the same NY courthouse--we all went up to the cafeteria, same as everyone else. During the McVeigh and Nichols' trials, we had attorney's lounge rooms set aside where we could also eat, but the defendants were in cells, not with us. We find it interesting to read about special arrangements made for some defendants. It clues us in on what to ask for the next time around.

This is a jury we'd love to have. First, it acquits the defendant of the charged crime. Then, it writes the judge and prosecutor and asks that the co-defendant who pleaded guilty in exchange for testifying against the defendant it acquitted be allowed to withdraw his plea because he didn't commit a crime either. To top it off, it was a terrorism-related case, where the defendant ran an anti-terrorism school.

Six of the jurors who acquitted David Hudak, owner of an anti-terrorism training school near Roswell, have asked a federal judge to allow Hudak's co-defendant to withdraw a guilty plea. As a condition of that plea, Michael Payne was a prosecution witness against Hudak, a Canadian charged with conspiracy and training foreign soldiers without State Department approval. Jurors said they found Payne "a loyal American without the slightest inclination whatsoever to do damage to our country."

Six jurors wrote U.S. District Judge John Edwards Conway to "beseech" him to let Payne withdraw his plea. They sent copies of the letter to New Mexico U.S. Attorney David Iglesias and U.S. Attorney General John Ashcroft. Payne, a decorated 20-year veteran of the Army Special Forces, last July pleaded guilty to violating federal law by teaching soldiers of the United Arab Emirates, a U.S. ally, classified anti-terrorism techniques, tactics and procedures at Hudak's school.

The link above is to an editorial in the Albuquerque Journal, supporting the withdrawal of the plea.

[Prosecutor] Iglesias has decided to oppose any withdrawal or change of plea while the U.S. Department of Defense investigates whether Payne's teachings damaged U.S. interests and security. That's a reasonable decision for now. But the government should expedite its investigation and, if there is no finding of harm, Iglesias should not oppose any plea withdrawal request....A jury clearly rejected the government's federal case against Hudak. In the interest of justice, Payne deserves the same consideration.

Editorial writer Jac Wilder VerSteeg of the Palm Beach Post cuts Rush no slack:

...it is not the case that Mr. Limbaugh, who has not been charged, would be the first to face prosecution for doctor-shopping. Nor would he be the last. But in Florida and elsewhere, it is likely that the people who face prosecution won't be able to afford defense lawyers of Roy Black's caliber. Under the provisions of Senate Bill 1064, the state would pay much closer attention to Medicaid patients' prescriptions. Medicaid patients who lied to get drugs would be denied benefits. The bill also would make it easier to discipline doctors who fraudulently prescribe drugs to Medicaid patients. Patients who sell fraudulently obtained OxyContin and other prescription drugs on the black market would be guilty of a felony.

Mr. Limbaugh, who has admitted his own addiction, seems to favor leniency for people addicted to prescription medications.....The compassion is new. What would Rush Limbaugh, before confessing to his own addiction, have said about Medicaid patients guilty of doctor-shopping for OxyContin? Mr. Black points out that hypocrisy is not a crime. He said he doubts that Florida would jail Medicaid patients who go doctor-shopping solely to feed an addiction to prescription pills. I think he's wrong about that last part. Perhaps Mr. Limbaugh should get a pass because Medicaid patients are ripping off taxpayers while Rush, even if he was doctor-shopping, spent only his own money. Regardless of who pays, though, doctor-shopping is a crime....If the state is determined to crack down on Medicaid recipients suspected of doctor-shopping, it is only fair to crack down on everyone suspected of doctor-shopping. Mr. Limbaugh's public-relations defense is "poor me." In that case, prosecutors should treat him the same as the state intends for them to treat the poor.

Two wrongs don't make a right. We don't think the state should go after anyone who takes pills for pain, whether they doctor shop or not. We think doctors must be free to prescribe whatever amount it takes to alleviate their patients' pain. Ashcroft is wrong to go after doctors; Florida is wrong to go after Medicaid recipients; and Florida is wrong to go after Rush, hypocrite or not.

The defendants in the Tulia, Texas drug sting will share a $5 million settlement.

The agreement with the city of Amarillo, announced Wednesday, was cheered by the NAACP and attorneys representing people who were snared in the Texas Panhandle town of Tulia by Tom Coleman, the task force's only undercover agent.

Attorneys said it was not just a victory for the 46 people arrested in 1999 - most of whom are black - but also a blow to law-enforcement task forces that they allege allow police misconduct to go unchecked.

"It's not simply that Tom Coleman was a rogue officer," said Vanita Gupta, an attorney with the NAACP Legal Defense and Educational Fund who also represents the plaintiffs. "The city of Amarillo has recognized that federally funded task forces are ineffective tools of law enforcement and they operate as rogue task forces because they are unaccountable to any oversight mechanism."

You can access all of our Tulia coverage here.

This strikes us as patently unfair. Singer Diana Ross was sentenced to 48 hours in jail for a Tuscon, AZ D.U.I. conviction. She was allowed to serve the time in jail in her home town of Greenwich. The Greenwich police chief certified she completed her sentence over three days, with two overnights.

The Judge in Tuscon has ordered her back to Tucson to spend another 48 hours in jail. Why? She only spent 47 actual hours in custody, and left the Greenwich jail on occasion so that her 47 hours were not continuous.

So why not have her makeup the excess hours? Why does she lose credit for the 47 hours she spent in jail? The original sentencing order did not specify the hours had to be continuous. Sounds bogus to us. We hope she appeals.

Findlaw columnist Mark Allenbaugh calculates Martha's federal sentencing guidelines at 30 to 37 months, and predicts she will serve 32 months. We disagree. Our calculations are here. Note: If you're not a lawyer, your eyes may glaze over at this.

We predict her guidelines will come out at either 10 to 16 months or 18 to 24 months--depending on whether the Judge enhances her guidelines based on a finding that her obstruction significantly interfered with the administration of justice.

Substantial interference with the administration of justice" includes a premature or improper termination of a felony investigation; an indictment, verdict, or any judicial determination based upon perjury, false testimony, or other false evidence; or the unnecessary expenditure of substantial governmental or court resources.

Also, the obstruction enhancement generally doesn't apply to convictions for obstruction. While it might apply to the false statements charge, the grouping rules provide for use of the obstruction guideline so we don't think that will come into play.

2. Nonapplicability of Chapter Three, Part C.—For offenses covered under this section, Chapter Three, Part C (Obstruction) does not apply, unless the defendant obstructed the investigation, prosecution, or sentencing of the obstruction of justice count.

The base guideline for obstruction is now 14, but we believe it was 12 at the time of the crime. The guideline to be used is that in effect at the time of sentencing, unless it was less at the time of the crime. [fn1]

We'd like to see appellate lawyer Peter Goldberger (and any other federal sentencing guideline pros) weigh in on this.

The latest CEO to be outed by a background check is James Minder of Smith & Wesson:

Springfield handgun maker Smith & Wesson Holding Corp. found... out the hard way last week after a report surfaced that James J. Minder Jr., its new 74-year-old chairman, spent 15 years in prison in the 1950s and 1960s for a series of armed robberies and an attempted prison break in Michigan. Minder resigned from the chairmanship but will retain a seat on the board.

Mr. Minder is one of the many who completely turned his life around. We see no value and a lot of heartache surrounding this outing. The Wall St. Journal reports (subscription only):

His story is all the more remarkable for what he has done since. After his final prison stint ended in 1969, he decided to turn his life around, he says. Before becoming chairman of Smith & Wesson, he spent more than two decades setting up programs and group homes for delinquent, abused, neglected and developmentally disabled children and young adults in Michigan. By the mid-1990s, a nonprofit he started with his wife was providing board, counseling or foster-home placement for more than 1,000 young people a day.

"If my work in the field changed the lives of those children, then I accomplished what I set out to do and this is the legacy I leave behind," he says.

Alan Dershowitz takes Martha Stewart's lawyers to task for their handling of Martha's case, even suggesting that Robert Morvillo had someone else's interests at heart--those of her prior lawyers who referred him the case--part of the "old boys' network" he says. (Subscription only, Wall St. Journal, sorry.) We think Dershowitz is likely to end up with Martha's appeal, if not her motion for new trial. In most jurisdictions, ineffective assistance of counsel claims cannot be brought on direct appeal--only by post-conviction motion. The test is a tough one. Not only do you have to show that counsel was ineffective--you have to show that the result would likely have been different.

Ten days ago we testified as an expert witness in a state case on the issue. In that case, the defendant filed a motion for new trial after the verdict based on ineffective assistance of counsel--prior to sentencing and his appeal of the conviction. The Judge heard the motion, accepted our testimony that the lawyer had been ineffective (even the attorney conceded he had been ineffective) but found the defendant likely would have been convicted anyway. Thus, no relief.

Dershowitz says:

We said in the comments section to one of TChris's posts last week, the lesson in Martha Stewart's conviction is: When the feds come calling, don't talk.

Martha was convicted of making false statements to investigators, obstructing justice and conspiring to do both. In essence, the jury found her guilty of covering up a crime (insider trading) she never committed and was never charged with.

The lesson: when the feds come calling, don't talk--call your lawyer instead. And if your lawyer tells you to go down and talk, make sure you know what the pitfalls and downside can be. One of our favorite sweatshirts is one we got at a legal seminar a while back. In big, bold letters it says: "Nobody Talks, Everybody Walks."

The Fifth Amendment protection against self-incrimination is in the Constitution for a very good reason. Use it or lose it.

The Wall Street Journal, in this editorial (subscription only,) agrees: