Courtroom Strategy by Attorney Oscar Michelen https://courtroomstrategy.com Commentary on Current Litigation and Legal Issues Fri, 14 Feb 2020 20:34:58 +0000 en-US hourly 1 https://wordpress.org/?v=5.3.2 https://i2.wp.com/courtroomstrategy.com/wp-content/uploads/2016/06/cropped-OM-web-headshot.jpg?fit=32%2C32&ssl=1 Courtroom Strategy by Attorney Oscar Michelen https://courtroomstrategy.com 32 32 14390642 Avenatti Convicted of Extorting Nike. Lessons to Be Learned. https://courtroomstrategy.com/2020/02/avenatti-convicted-of-extorting-nike-lessons-to-be-learned/ https://courtroomstrategy.com/2020/02/avenatti-convicted-of-extorting-nike-lessons-to-be-learned/#respond Fri, 14 Feb 2020 20:34:53 +0000 https://courtroomstrategy.com/?p=4005 [...]]]> Michael Avenatti – remember him? He was the lawyer who represented Stormy Daniels, the porn star, in a lawsuit against President Trump. Well hours ago he was was found guilty of trying to extort sneaker giant Nike out of $25 Million.

A New York federal jury found Avenatti guilty on three counts, including extortion, wire fraud and transmission of interstate communications with intent to extort. He faces up to a combined 42 years in prison. I predict 5 years as the likely sentence. June 17 is the scheduled sentence date.

The charges alleged that he tried to extort up to $25 million from Nike by threatening to expose corruption at the sports footwear company unless he was allowed to conduct an internal probe of Nike.

Michael Avenatti courtesy of ABC News

Avenatti of course rose to his 15 minutes of fame during frequent cable television program appearances in 2018 and 2019 as journalists put him on for information about Daniels and her affair with President Trump. She made claims about the affair before he became president and a received a payoff through Trump attorney Michael Cohen to remain silent about it.

Avenatti was arrested last year as he was about to meet Nike lawyers to pursue his demands for millions to conduct an internal probe of the company. Avenatti maintained he was taking the aggressive position at the urging of his client, Gary Franklin, who ran a youth basketball league in Los Angeles and was angry that Nike ended a decade-long sponsorship that provided $72,000 annually and free gear. He sought $1.5 million for Franklin, as well.

So what can attorneys learn from this saga – besides not extorting a global company for $25 Million? Well (1) When you get a client or a case that gives you national attention – use that exposure wisely. Don’t over-expose yourself, don’t over-hype yourself. Take a page out of Jose Baez’s playbook. He represented Casey Anthony in what was then the Trial of the Moment. But he rarely played the media darling and rarely showed up on cable news. Even after the case was over, he did not take every interview thrown at him. Instead, he used that notoriety to build up his practice into a national criminal defense law firm. (2) There’s a fine line between making a pre-litigation demand and being accused of extortion. But there is a line. Do have a legitimate and valid claim that can be spelled out in the demand letter. Don’t threaten exposure in the media as part of your demand. Any sophisticated potential defendant will see the likely negative press if you file a claim. Don’t demand $1.5 Million for your client and $25 Million for yourself. It’s a bad look and why would Nike need you to conduct an investigation?

Avenatti flew too close to the sun and his head got too large. He thought his name alone would make Nike bend the knee and quiver at the thought of the bad publicity. Let it be a cautionary tale for those attorneys who suddenly find themselves as the flavor du jour of cable news.

Follow me on Twitter @oscarmichelen

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Copyright Troll Attorney Richard Liebowitz and Race-Faker Rachel Dolezal Team up to Quickly Lose Copyright Lawsuit Over Dolezal’s Selfie https://courtroomstrategy.com/2020/02/copyright-troll-attorney-richard-liebowitz-and-race-faker-rachel-dolezal-team-up-to-quickly-lose-copyright-lawsuit-over-dolezals-selfie/ https://courtroomstrategy.com/2020/02/copyright-troll-attorney-richard-liebowitz-and-race-faker-rachel-dolezal-team-up-to-quickly-lose-copyright-lawsuit-over-dolezals-selfie/#comments Wed, 12 Feb 2020 17:39:57 +0000 https://courtroomstrategy.com/?p=3998 [...]]]> From EIN Presswire:

Five years after she came to national attention for identifying as black woman while being of European ancestry and having no verifiable African ancestry, Rachel Dolezal is again at the heart of a legal controversy. This time, Dolezal filed suit for copyright infringement after Paper Magazine included Dolezal’s public Instagram post as part of their news coverage.

Last summer, Dolezal announced on Instagram that she’s bisexual. Among the pop culture and celebrity media that covered the June 15 announcement was New York-based Paper Magazine, which published a story, including Dolezal’s Instagram selfie which was part of her announcement.

Three months later, a lawsuit filed on behalf of New York company Polaris Images accused Paper Magazine of copyright infringement based on an alleged “exclusive license” to market all images of Dolezal.

The Sept. 3 lawsuit was filed by New York attorney Richard Liebowitz, who was recently called a “copyright troll” by a federal judge due to his prolific litigation history — filing over 1,100 copyright infringement lawsuits over the past three years .

The lawsuit against Paper Magazine sought all profits earned from publishing the photo, plus $150,000 in damages — the maximum allowed under federal law for willful infringement of a copyrighted work.

This time, however, Robert Tauler, Paper Magazine’s Los Angeles attorney, found the way to stop Liebowitz’s deluge of copyright lawsuits stemming from social media posts.

“Our team was able to find a legal loophole in Mr. Liebowitz’s modus operandi, which forced Liebowitz to backtrack and name Dolezal as the plaintiff instead of the original plaintiff, Polaris,” Tauler said. “However, plaintiff’s lawyers can’t switch horses in the middle of a copyright lawsuit, and when we challenged Mr. Liebowitz’s second attempt he was forced to dismiss the case before our motion to dismiss was even heard by the court.”

Liebowitz dropped the lawsuit on Jan. 29, and apologized to U.S. District Court Judge Katherine Polk Failla, explaining that the switch was just a misunderstanding an explanation Tauler expects to challenge when seeking attorneys fees for his client.

“I believe the loophole we exposed can put an end to endless filing of copyright lawsuits like this one,” Tauler said. “Some copyright attorneys make a living exploiting technical aspects of the law that do not advance any of the objectives of the Copyright Act, let alone provide any benefit to society. Lawsuits like this hurt the legal profession by flooding our courts and draining the resources of legitimate businesses.”

A copy of the lawsuit and Liebowitz’s apology letter to the court can be found here

The picture at issue was a selfie Dolezal took when she allegedly came out as bisexual during Pride Month:

The legal loophole that the lawyer refers to is that since it was an Instagram selfie and since you give Instagram a nonexclusive license to post the picture when YOU post it, Dolezal was no longer the exclusive owner of the photograph, a requirement to be a copyright infringement plaintiff.

We will wait to see if the court sanctions Liebowitz or awards attorney’s fees to paper’s lawyers. But this can be added top list of cases where Liebowitz has had to face court scrutiny and/or pay fines or post bonds due to his trolling practice. Previous blog posts of mine about him can be found here: https://courtroomstrategy.com/2019/11/copyright-troll-attorney-found-in-contempt-of-court-for-lying-about-grandparents-death/ and here: https://courtroomstrategy.com/2018/03/court-labels-attorney-as-copyright-troll-and-fines-him-10000-over-frivolous-case-involving-photograph/

When will he learn we wonder?

Follow me on Twitter @oscarmichelen

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Big Change in the Real Estate World: NY Just Eliminated Renter’s Paying Brokers’ Fees https://courtroomstrategy.com/2020/02/big-change-in-the-real-estate-world-ny-just-eliminated-renters-paying-brokers-fees/ https://courtroomstrategy.com/2020/02/big-change-in-the-real-estate-world-ny-just-eliminated-renters-paying-brokers-fees/#respond Thu, 06 Feb 2020 14:45:42 +0000 https://courtroomstrategy.com/?p=3995 [...]]]> When my son was looking for an apartment in Manhattan a few years ago, the sticker shock of the rental prices was the least of our issues. The worst was that some brokers wanted 15% of the annual lease up front along with first and last month’s rent and two month’s security. So for a $2500 per month apartment we would have to pony up $4,500 in brokers’ fees; $5,000 in two rent payments; and $5,000 in security for a total of $14,500. Then there were added costs for credit checks and other sundry items.

Most of that is out the window now that late on Tuesday, New York State effectively eliminated brokers’ fees paid by tenants.

In an unexpected addendum to last year’s rent laws, state regulators said renters can no longer be charged broker fees, potentially upending the market and delivering the latest blow to an industry already reeling from new regulations and even bigger tenant and rent-stabilization protections. New York is one of the few cities in the country with a broker industry that has such financial leverage over prospective tenants.

Brokers can still collect a fee, the state said in the revised regulations, but the fee must be paid by the landlord unless a prospective tenant hired the broker directly to help them find an apartment.

The Real Estate Board of NY is likely to fight these new regulations

Landlords’ and their advocacy groups can be expected to try and fight the law and lobby for amendments but that will likely not be successful. More likely is that landlords will pass the cost onto renters in increased rent, but with a current glut of available apartments after huge over-building period in Manhattan, that may not be so easy to do. Also, many NYC apartment are rent-regulated so that the rent can be increased only so much.

Brokers can expect to be pressured by landlords to take large cuts in their fees. Remember a tenant is only looking for one apartment but a landlord can be listing several with a broker so the landlord has much more leverage to negotiate a different (lower) rate with the broker.

We can also expect to see many sophisticated landlords simply creating their own brokerages to eliminate the middle man and keep the fees themselves. They had no incentive to do before with their tents forking over the cash, but now there is great reason to do so and keep the cash in the family.

The same regulations also state that a broker can charge a renter no more than $20.00 in application fees including credit checks. This cuts off another supply line of cash for brokers who made an additional couple of hundred bucks a pop on the fees and checks each time renters applied for an apartment. In June, the state legislature limited security deposits to one month. Going back to my scenario, these rules would have saved us a ton of cash!

The rental brokerage industry is the biggest loser in this obviously and many will be fighting to survive or will have to make dramatic cuts in staff. Prospective tenants will have to make sure that they DO NOT SIGN an agreement sent by a broker stating that the renter is hiring the broker themselves. That allows the broker to pass the fees on to the tenant. The already volatile world of NYC real estate just got more heated. Let’s see how this all shakes out in the coming months and rest of the year.

Follow me on twitter @oscarmichelen

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Caveat Employers: New Laws Going into Effect in 2020 Affect Every Employer https://courtroomstrategy.com/2019/12/caveat-employers-new-laws-going-into-effect-in-2020-affect-every-employer/ https://courtroomstrategy.com/2019/12/caveat-employers-new-laws-going-into-effect-in-2020-affect-every-employer/#respond Mon, 30 Dec 2019 19:43:31 +0000 https://courtroomstrategy.com/?p=3982 [...]]]> A host of new employment obligations ranging from sexual harassment prevention training to stricter data breach notification requirements will go into effect in early 2020 and will be a shock to some employers who were previously exempt.

One of the biggest overhauls of 2019 involved sweeping changes to New York State Human Rights Law [NYSHRL] expanding harassment and discrimination protections.

Among employers’ new obligations was to give workers sexual harassment prevention training by this past October or face fines if you are caught or a complaint is made. That obligation continues and employers are required to do that training annually.

Also as a result of changes to NYSHRL, effective Feb. 8, the Human Rights Law will apply to employers of all sizes. Previously, except with respect to sexual harassment, the law covered only employers with four or more employees. So the minute your business takes on a single employee you must provide the training. The law was also changed to protect non-employee service providers, such as independent contractors, consultants and vendors, from all forms of unlawful discrimination and harassment based on any protected characteristic under the NYSHRL.

The NYSHRL covers protected characteristics including sex, race, color, creed, religion, age, sexual orientation and disability. This means employees will be able to file a charge of discrimination with the state’s Division of Human Rights (NYSDHR) even with the smallest of employers. Most small businesses are unprepared and ill-equipped to handle the new requirements. A number of websites have already popped up offering the training online at cost ranging from $11.95 to $100.00 per employee. The State also has link that provides it for free: https://www.getimpactly.com/resources/free-new-york-harassment-prevention-training/

In addition, as of Jan. 1 under changes to NYSHRL, any agreement with an employee that prevents the disclosure of factual information related to a future claim of discrimination is void and unenforceable unless the employee is specifically informed that despite the nondisclosure agreement, the employee is not prohibited from speaking with law enforcement, the Equal Employment Opportunity Commission, the NYSDHR, a local human rights agency or an attorney retained by the employee. Law firms and employers alike would be wise to add this language right now to their form non-disclosure or settlement agreements.

Furthermore, effective Aug. 12, 2020, the statute of limitations for filing a sexual harassment claim with the NYSDHR is extended from one to three years. This widening of the statue of limitations will make it easier for employees to bring up several separate instances in one claim. That is particularly important because the State also changed the law to match the law in the City of New York where the Human Rights Law in 2009 was amended remove the requirement that workplace harassment be “serious and pervasive” (the Federal standard). Now a single incident that is discriminatory or harassing can form the basis of a claim.

Outside of Human Rights Law changes, some other notable changes include:

•    As of Dec. 31, 2019, minimum wage on Long Island increases from $12 an hour to $13 an hour, and more employees will be eligible to receive overtime pay because the salary threshold to exempt certain employees from overtime increases. On Long Island, employees must make at least $50,700 ($975 weekly) to be exempted from overtime pay — up from $46,800 ($900 weekly). Furthermore, to be exempt, the employee’s job duties also must primarily involve executive, administrative or professional duties as defined by the regulations.

•    Effective Jan. 1, employees taking Paid Family Leave will receive 60% of their average weekly wage up to a cap of 60% of the current statewide average weekly wage of $1,401.17, so the maximum weekly benefit for 2020 will be $840.70. The benefits are funded by employee contributions collected via payroll deductions. In 2020, the contribution is 0.270% of employees’ gross wages each pay period, up to a max of $196.72 for the year.

•    On Jan. 6, a statewide ban on salary history inquiries takes effect. Employers and anyone connecting applicants with employers are forbidden from asking job applicants or current employees about their wage or salary histories as a condition of consideration for employment or promotion.

•    By Jan. 7, employee handbooks must include a notice of employees’ rights and remedies under the a 2019 law that prohibits employment discrimination based on an employee or dependent’s reproductive health decision-making (ie., abortion, etc.).

  • The City of New York also made it illegal to discriminate based on a person’s hair or hairstyle.

Effective March 21, as part of New York’s SHIELD Act, employers must adopt more stringent data security safeguards to protect employee data. More expansive data breach notification requirements already went into effect in 2019. 

I know I speak for many of my small business owner clients when I say that these new laws will come as a shock. It’s important that if you have even a single employee, you get educated on all the new rules and regulations and take steps to come into compliance.

Follow me on Twitter @oscarmichelen

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Fast Fact

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Custody Battle Looms Over Fearless Girl https://courtroomstrategy.com/2019/11/custody-battle-looms-over-fearless-girl/ https://courtroomstrategy.com/2019/11/custody-battle-looms-over-fearless-girl/#comments Wed, 27 Nov 2019 17:54:53 +0000 https://courtroomstrategy.com/?p=3971 [...]]]> State Street Global Advisors Trust Co. (SSGA) , the investment firm behind the “Fearless Girl” statue placed near the New York Stock Exchange, is pursuing legal action against Kristen Visbal, the sculpture’s creator for alleged breach of contract and trademark infringement.

SSGA commissioned Visbal to create Fearless Girl allegedly to promote gender fairness and female empowerment in investment and to highlight its gender equality fund. Detractors said it was to wash SSGA’s image after SSGA agreed to pay $5 Million in 2017 in a settlement to more than 300 women and 15 Black employees in senior positions who received allegedly substantially less pay than their white male colleagues.

Kristen Visbal’s or SSGA’s “Fearless Girl” (photo by Anthony Quintano/Flickr)

Whatever the purpose, the statue was a viral sensation and has become a symbol of female empowerment. It garnered over 1 billion views in just the first 12 hours of its unveiling on International Women’s Day. Visbal began selling reproductions of the statue for $6,500 each in a limited run of 1,000 miniatures. According to Visbal’s website advertising these copies, Visbal has already sold at least 137 editions of the statue. She also sells signed copies of the original photo of the statue by the famous Wall Street statue of a charging bull for $5,000.00 (unsigned go for a mere $500). While this is pricey, its not everyday a sculpture attracts this much praise and notice. So who can blame an artist for trying to profit off one of their works that has so touched the mainstream? SSGA can.

SSGA originally filed suit in NY Supreme Court but Visbal’s lawyers removed it to Federal Court, specifically, the Southern District of New York. It claims that under its contract with Visbal, the company and not her owns the copyright in the statue. They also claim it has become a trademark of the company. According to the complaint, the design was based on guidelines and input given to Visbal by SSGA. They point out that when Visbal wanted to use a replica at the Women’s March in Los Angeles she sought their permission to do so. They claim in their suit that they refused to give her permission but she used a replica anyway.

Photo of the $6,500 mini version from fearlessgirlus.com/reproductions

That’s certainly pretty strong evidence that at least at one point Visbal believed she need permission to use a replica of the statue. In the end the contract between the parties is what will control. While it seems illogical that an artist would be unable to use their own work, if it was created as a “work for hire” a legal term that provides an exception to the rule that whomever created the work owns copyright in the work. Work for hire does not apply to sculptures unless created by an employee of the company which Visbal is not. In its suit, SSGA is instead relying on its contract with Visbal which expressly set forth the rights each other has in the statue. The contract, which SSGA claims is confidential, is not attached to the lawsuit so I cannot comment on its specific terms.

From the complaint however, it appears that the contract provides a license for the copyright and trademark in the statue but with limited use. SSGA claims that the statue must be used only to promote female leadership and empowerment in the financial world. That is why they were upset when they learned that the replica was commissioned by Maurice Blackburn a large Australian law firm whose specialties include personal injury, class actions, superannuation, insurance, and financial services. Maurice Blackburn’s website touts that it is “Australia’s #1 [plaintiff] law firm.”

Just from reading the complaint, it appears SSGA has a strong claim against Visbal as if the contract is clear there should be no question as to what she is allowed to do with the statue and its design. Visbal may herself have been fearless, but her conduct may not have been legal. The case is in the discovery stage so I will keep you posted how this shapes out.

Follow me on Twitter @oscarmichelen

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The Case for Impeachment https://courtroomstrategy.com/2019/11/the-case-for-impeachment/ https://courtroomstrategy.com/2019/11/the-case-for-impeachment/#comments Fri, 22 Nov 2019 15:26:46 +0000 https://courtroomstrategy.com/?p=3966 [...]]]> As a trial lawyer, I think I would like my chances trying this case of impeachment before just about any jury but the GOP Senate who will nullify the House’s articles no matter what. That doesn’t mean the House shouldn’t vote the articles (including contempt of congress). In fact, I believe they must. Will it help/hurt the election? Some things don’t matter – this is not perjury about some sex scandal in the oval office. This is withholding Congressionally approved aid and trying to get a foreign nation to help in a domestic political campaign. I watched most of the hearings, they were not boring or manufactured to me. A few simple witnesses laid out a perfectly clear timeline of corruption of our systems and policy. ICYMI here it is for you:
(1)Trump’s Ambassador to the EU confirmed that Trump has never cared about Ukrainian sovereignty, democracy, rule of law, or the war with Russia. He cares only about things that have to do with him personally

(2) He stated on the WH lawn and in the Oval Office that he sees no problem with getting information from a foreign nation about a political opponent. He saw an opportunity in Ukraine. He engaged Giuliani to explore it This greatly disturbed the delicate systems OUR foreign service had in place in this delicate region.

(3)Several months ago, Giuliani began to court Ukrainian prosecutor general Yuri Lutsenko with the goal of opening investigations into Burisma/Biden. The aim was clear — find/fabricate dirt on VP Biden, at the time the leading Democratic candidate in the 2020 election.

(4)Giuliani also wanted Lutsenko to investigate “Ukrainian meddling” in the 2016 US presidential election. The goal — deflect attention from the ACTUAL Russian intervention in 2016 & thereby strengthen legitimacy of Trump victory in 2016. This theory had been first put out into space by PUTIN and as Fiona Hill testified had long been debunked by OUR foreign service and intelligence community. As she stated, advancing this theory tremendously helped PUTIN.

(5)Lutsenko despised US Amb Yovanovitch – a career diplomat with a sterling record who had been key in Ukraine diplomacy and in making sure Ukraine had met anti-corruption goals.. In this first quid pro quo, Giuliani got Yovanovitch fired in return for Lutsenko’s agreement to open these investigations. Things were on track for the Trump/Giuliani plan.

(6)But then electoral politics in Ukraine intervened. Zelensky – a reform candidate who was not a sure fire winner was elected president, and Lutsenko’s boss, Poroshenko, lost. Lutsenko eventually lost his position. So Giuliani’s first play failed.

(7) Zelensky was a new , inexperienced president in Ukraine. He wanted to bolster his standing in the community and desperately wanted a personal WH meeting with Trump.

(8)Trump took advantage, demanding investigations into Burisma/Biden and “Ukraine 2016 meddling” in return for an Oval office bilateral meeting with Zelensky. He drafted new actors — the 3 amigos Sondland, Volker and Pompeo– to work with Guiliani and achieve these “deliverables” for 2020. He instructed them to “talk with Rudy” if they needed info and direction.

(9) In his call to Zelensky on July 25th, Trump bluntly asked for Zelensky to “do us a favor” — opening these investigations. In other words, Trump was asking a foreign government to help his reelection campaign. Almost all on the call were shocked and several reported the issue to WH attorneys and others.

(10) $400+Million in US Military aid had been approved by Congress to help Ukraine fight off Russia. It was trapped in a bitter “hot” war with Russia which had invaded and occupied Ukrainian territory. The previous money allocated had run out and this new tranche was needed immediately to help continue Ukraine’s efforts.

This guy is even worse than . . .
This guy

(11) Trump then upped the ante and froze U.S. military assistance to Ukraine. The entire intelligence and foreign service community was struggling to understand why it was held up. Testimony and emails show that Pompeo knew it was held up at the direction of Mick Mulvaney and POTUS. Mulvaney admitted this in a press conference. Sondland told Ukranian officials in a WH meeting with Hill and Amb. John Bolton who was then the National Security adviser to POTUS. Bolton immediately ends the meeting and tells everyone but Hill to get out. He tells Hill to report this to WH attorneys and to tell them that he will not be part of “whatever drug deal” is being cooked up.

(12) Zelensky was ready to acquiesce to this quid pro quo and arranged to announce the opening of these investigations on Fareed Zakaria’s CNN show.

(13) In a call to Sondland who was then in a Kyiv cafe with David Holmes -and on an unsecure phone – POTUS repeatedly asked if Zelensky was going to announce the investigations. Sondland told him “Yes. He loves your ass and will do whatever you want.” Holmes hears this and asks Sondland what Trump thinks about Ukraine policy. Sondland tells him Trump only cares about big things that have to do with him and does not give a shit about Ukraine.

(14) By now folks are already discussing the ramifications of the July 25 call when the whistleblower stepped up and reported it to Congress.

(15) Trump panicked and released the aid which by then had been held up 55 days.

(16) Trump then told Sondland on September 9th he didn’t want anything from Ukraine anymore.

(17) But the impeachable offenses had already been committed Trump used his public office the most powerful office in the world- to pursue his private electoral interests. Or as Hill said a “Domestic political errand” That’s the definition of abuse of power.

(18) To get what he wanted from a weaker head of state who was our ally in need, Trump withheld military assistance to a US partner at war with Russia. (14,000 people have died). This was extortion You want to call it attempted extortion or attempted bribery OK but I do not see it as an attempt. It was a completed act because the aid was withheld and the announcement was scheduled. Were it not for the whistleblower Zelensky would have gone on CNN and done as he had been told.

(19) POTUS asked a foreign govt to investigate a private American citizen, even though there is zero evidence of any wrongdoing by Hunter Biden.(Trump never expressed any interest in anti-corruption in Ukraine generally; nor did he use proper channels to pursue.) That’s abuse of power. But its also FELONY HYPOCRISY. All of his children except Tiffany and Barron have used the WH for their personal financial gain.

(20) POTUS and his henchmen only stopped running the extortion/coercion/”drug deal” after they were caught. (And most witnesses only came forward to testify after the whistleblower exposed this abuse of power)

(21) He has also instructed other key witnesses not to testify including Mulvaney, Bolton and Pompeo. He did not let Sondland see his documents and emails before Sondland’s testimony. That’s abuse of power and contempt of Congress.


As a middle-school students we closely watched the Watergate hearings and impeachment inquiry. This is 100 times worse. This goes to the very foundation of our system that foreign policy be conducted through proper channels and not be used to extract leverage against a political opponent. Will he be convicted by the Senate – of course not. McConnell will never let it happen. So what? This has to be done on the full record in the Senate and let the chips fall where they may. But this President is corrupt; he has corrupted our system; he has corrupted our foreign policy; he has endangered the people of Ukraine; he has played into the hands of Vladimir Putin; he has belittled and demeaned the office. He must be impeached.

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Copyright Troll Attorney Found in Contempt of Court for Lying About Grandparent’s Death https://courtroomstrategy.com/2019/11/copyright-troll-attorney-found-in-contempt-of-court-for-lying-about-grandparents-death/ https://courtroomstrategy.com/2019/11/copyright-troll-attorney-found-in-contempt-of-court-for-lying-about-grandparents-death/#comments Thu, 14 Nov 2019 19:21:11 +0000 https://courtroomstrategy.com/?p=3954 [...]]]> Its the oldest excuse in the middle school playbook: Telling the teacher that you didn’t do your homework because your grandmother or grandfather died. Of course it never worked, and guess what – it doesn’t work in Federal Court either.

Attorney Richard Liebowitz has been declared a copyright troll by Federal judges; has been ordered to post bonds on civil cases due to their frivolous value; and now has been held in contempt of court for lying about his grandfather’s death in order to explain a missed court appearance. Liebowitz has filed over 1,000 copyright trolling lawsuits over the past few years in the Southern District of New York, alone for websites allegedly copying and posting a digital image without the photographer’s permission. But get this – its not the photographer who finds out about the infringement, its Liebowitz who then immediately files a lawsuit in hopes of getting a quick settlement and netting a legal fee that’s a percentage of the recovery.

The recitation of what happened is lengthy but a worthwhile read to lawyers and non-lawyers alike. Lawyers who have cases against Liebowitz will want to have this information and lawyers who don’t will want to see how far and how intransigent a lie can be carried. Non-lawyers can use the story to educate themselves about making sure they choose the right lawyer when they need one. It also just provides a crazy tale of lies and stubbornness gone to the extreme.

Strike One: One of his many cases was scheduled for a conference before Judge Cathy Seibel. Liebowitz was as no show. Seibel directed Liebowitz to explain “why he should not be required to pay Defendant’s attorney’s fees for the time expended to appear at the conference.”

Strike Two: Liebowitz filed a letter with the court saying he missed the April 12 conference because “I had a death in the family.” He added that, “this was an unexpected urgent matter I needed to attend to.” He then requested that the discovery conference be rescheduled (and that it be conducted telephonically since he would be “out of the office”).

During the phone conference, Liebowitz told her that “the death in the family occurred on the morning of April 12,” a Friday, and he apologized for not letting her or opposing counsel know. While that normally may have sufficed the judge, a former Federal prosecutor, noted that other issues arising during the conference “reflected negatively” on Liebowitz’s credibility. She pointed to conflicting statements he made about the provision of discovery materials, as well as Liebowitz’s claim to defense counsel that he could not produce those records “because he was out of the country due to an emergency, when in reality he was at a trade show in Europe trying to drum up business.”

Strike Three: The judge went on, “At that point, concerned about Mr. Liebowitz’s credibility, I determined that I could not merely accept Mr. Liebowitz’s representation that he missed the April 12 conference because of a death in the family.” As a result, she ordered Liebowitz to “provide evidence or documentation regarding who died, when, and how he was notified.”

On May 1, two weeks after the telephone conference, Liebowitz wrote the court to “let the Court know the reason for my absence at the conference scheduled for April 12, 2019.” Liebowitz then claimed his grandfather “unexpectedly passed away” that Friday, “and I needed to immediately arrange to be with my family during this difficult time.”

Liebowitz continued, “In the Jewish religion certain customs needed to be done before the Sabbath that I needed to assist in. I truly hope the Court understands this emergency.” Liebowitz did not further describe his responsibilities prior to the Sabbath (which begins at sunset on Friday and continues until nightfall on Saturday).

Seibel immediately dismissed Liebowitz’s letter as not responsive, writing that she ordered him to “documentwho passed away, when the person passed away and when Mr. Liebowitz was notified.” She sought such proof, Seibel noted, because “there is reason to believe Mr. Liebowitz is not being candid.” The judge added, “When someone dies, there is documentation including a death certificate and (almost always) an obituary, and nowadays one’s phone usually contains evidence of what one was told and when.” Since this is not documentary evidence as required, the Judge ordered Liebowitz to provide documentary evidence about what he was talking about. She gave him until May 3.

Strike Four: May 3 Liebowitz told the court he settled the case. I’m sure he got next to nothing just to not have to continue with Seibel’s investigation. Did he tell his client that? I doubt it. Anyway, Seibel was not having it. Seibel noted the case closing did not relieve Liebowitz of his responsibility to “document the death in the family that he says caused him to miss the conference.” Seibel gave Liebowitz until May 9 to document his grandfather’s death since, “I still need to satisfy myself that there is no need for disciplinary or other inquiry.”

Judge Cathy Seibel, at her alma mater Fordham Law moderating a panel on Fordham female graduates who are on the bench. Picture courtesy of Fordham law

Strikes Five Through Eight: Over the following months, Liebowitz filed four “good faith” sworn declarations that asserted he had met his obligations in response to Seibel’s request for proof of his grandfather’s demise. In reply to each filing, Seibel explained that Liebowitz–despite her repeated orders–had failed to offer any documentation to support his death-in-the-family claim.  Liebowitz’s court filings did not include his late grandfather’s name (or indicate what side of the family he was on)or provide any documentation. So on July 26, Seibel ordered Liebowitz, “under pain of contempt,” to provide her with a copy of his grandfather’s death certificate “so as to support his claim that he could not attend the April 12 conference, nor provide timely notice to the Court or opposing counsel, as a result of his grandfather’s death.”

Strike Nine: In reply to Seibel’s order, Liebowitz again claimed that he had already “discharged my obligations,” adding that he should not be ordered to “produce a death certificate of my grandfather, which is a personal matter.” Uhm . . . you can’t tell a Federal judge that ordered you to do something that they shouldn’t order you to do something. If you believe the judge stepped out of bounds, you have recourse – go to the administrative judge or file an immediate appeal with an injunction.

Acknowledging that the “death of a loved one is indeed a personal matter,” Seibel held that “whether Mr. Liebowitz has been candid with the Court is a professional matter, so he is not relieved from my Order that he produce the death certificate.” She told Liebowitz that if he was concerned about the death certificate being available on the public docket, he could “provide the document directly to my chambers to ensure his privacy.” Seibel also warned that if Liebowitz did not produce the death certificate by August 26, he would be held in contempt of court, face monetary sanctions, “and/or referral to this Court’s Grievance Committee.” Sane Lawyer: Time to fold right? Just fess up and take your hits, right? Liebowtiz: Hold My Beer.

Strike Ten: Incredibly, Liebowitz again refused to produce proof of his grandfather’s death. In another “Good Faith Declaration,” the lawyer declared that, “I will not produce a death certificate of my grandfather, which is a personal matter that has no bearing on the facts of this case.” For good measure and to just raise the stakes , Liebowitz’s also took a shot at Judge Seibel, saying that since her demand for the death certificate “is of a highly personal nature and not related to this case, it likely constitutes a usurpation of judicial authority.” Dismissing Seibel’s concerns, Liebowitz blithely declared, “I missed a single court conference due to a death in the family. It happens.” All he needed to add was “Get Over It!” and he could have joined the Trump Legal Team. Predictably, Seibel declared Liebowitz to be in contempt of court and began levying fines of $100 per day until the death certificate is produced starting on October 2.

Strike Eleven: On November 1, when he still had not produced the death certificate, and had not paid any of the fines, it rose to $500 per day and a hearing was scheduled for November 13, 2019.

Strike Twelve:  On November 13, 2019, Liebowitz showed up with two criminal defense lawyers who did not really help his cause. First of all , it was finally revealed that his maternal grandfather had actually died on April 9, 2019, not April 12, and that his estate had already been filed for Probate by the 12th so there was no urgency or arrangements that had to be made. Liebowitz’s parents are very wealthy living in a 10,000+ square foot mansion so I think they could have had plenty of help in making arrangements if that was in fact necessary.

According to the Smoking Gun website, which apparently had a reporter in attendance at the hearing, Seibel stated that Liebowitz knew he was lying about the date of his grandfather’s death, but “chose to repeat that lie six, eight, ten times” in court filings that were part of a “long-term campaign of deception.” Seibel remarked that he “double-downed, triple-downed, quadrupled-downed, octupled-down, I don’t know what would come after that.” (nontupled down, Judge) More: “I question Mr. Liebowitz’s fitness to practice,” Seibel said at one point during the hearing.

Seibel said that it seemed Liebowitz thought that if he could drag the court proceedings out, that she would lose interest in him. Referring to the “multiple lies” offered by Liebowitz, Seibel said, “I’m sure he’s disappointed I didn’t go away.” The Smoking Gun reports that , Richard Greenberg, one of Liebowitz’s lawyers, said his client was “not playing with a full deck,” adding that he shared the judge’s “mystification” as to Liebowitz’s behavior. Greenberg stated that Liebowitz “was in a daze” following his grandfather’s death, and than any misrepresentations on the lawyer’s part were not “intentful.” Oh boy. Seibel of course dismissed that claim, noting that it was “completely implausible” that Liebowitz’s “haze” continued for the many months he “tried to weedle his way out of the problem.” Seibel was equally unsparing when Greenberg described Liebowitz as a “young, inexperienced, somewhat immature lawyer.” The judge replied that she was “not really super-sympathetic” to the young lawyer argument, since attorneys know not to lie and understand their ethical responsibilities. She should have also noted the thousands and thousand of claims he has filed.

Noting the significance of a lawyer who “intentionally lies to the court,” Seibel said she has referred the Liebowitz matter to the Grievance Committee for review and possible disciplinary sanctions. Seibel added that her contempt rulings against Liebowitz will require him to disclose the sanctions to other courts and prospective clients.

In a letter to Seibel, Greenberg argued that the contempt findings against Liebowitz will damage his legal career. Near the close of the hearing, Liebowitz briefly addressed Seibel, saying he was “really, really sorry” and that his repeated misstatements were “really an honest mistake.” (JUST SHUT UP DUDE!!)

Seibel told him, “Stop kidding yourself. This was clearly not an honest mistake,” she said. Rather, it was a “concerted campaign of deception.”

During the hearing, Greenberg referred to a letter he submitted yesterday under seal to Seibel. In that communication, Greenberg referred to praise Liebowitz received from photographer’s associations and the growing explosion of his practice as proof that Liebowitz is filling a void in IP litigation. He also mentioned Liebowitz’s plans to seek personal treatment from a Long Island “analyst,” as well as professional help in managing his firm. Referring to those remedial efforts, Seibel suggested that Liebowitz bring the transcript from today’s hearing with him when he arrives for his initial session with a mental health professional. “You need to do some introspection,” she told Liebowitz. “It’s time to start facing the facts.”

Conclusion: I will keep monitoring the case to see if there are any updates or whether the court uploaded any documents. This case is just another in the litany of cases in which Liebowtiz has been slammed and/or sanctioned. The Grievance Committee should take note and pull or suspend his license.

Follow me on Twitter @oscarmichelen

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Q:Can Facebook Be Legally Forced to Police Political Ads? A: No. https://courtroomstrategy.com/2019/10/qcan-facebook-be-legally-forced-to-police-political-ads-a-no/ https://courtroomstrategy.com/2019/10/qcan-facebook-be-legally-forced-to-police-political-ads-a-no/#comments Mon, 28 Oct 2019 01:10:38 +0000 https://courtroomstrategy.com/?p=3938 [...]]]> Facebook CEO Mark Zuckerberg testified before Congress last week and was grilled by various members of that body about FB’s policies towards political ads. In one round of such questioning, Congresswoman Alexandra Ocasio Cortez (D-NY) asked him whether a candidate could target ads to African-American voters that contained a false election date. He answered “No” and explained that this type of false political ad is prohibited by Facebook’s terms of service which do not allow any content that could intentionally disrupt the election or Census process. She then asked whether FB’s terms of service would allow her to falsely advertise that certain GOP congresspersons had voted in favor of her Green New Deal. Zuckerberg answered “Probably.”

And that is the right answer as wrong or sad as that may seem. But how come TV ads can get fined by the FCC if they intentionally espouse false facts about an opponent or an issue? Because they use the public airwaves and are therefore subject to FCC regulation. Cable channels and online content providers are not regulated in that fashion. In fact, cable TV polices itself with respect to profanity and nudity; every cable channel could show nudity and pornography if they so chose but they tend to leave that to premium networks like HBO and Showtime in order to better compete with free TV. That’s their choice.

FB is a private entity; as big as it is, it is not a public utility . Neither is Google. So there is only so much a government can do to regulate its content. That has to be left to the marketplace and public pressure.

Other congresspersons asked him about FB’s Board members’ experience with civil rights and who was in charge of making sure FB had a proper approach to diversity and civil rights. Congresswoman Joyce Beatty (D-OH) in particular grilled him about it and his knowledge of what his team was doing in that arena. But there’s a difference there. The congresswoman appeared to be referring to charges filed by the U.S. Department of Housing and Urban Development earlier this year alleging that Facebook’s advertising tools violated the Fair Housing Act and enabled housing discrimination by preventing certain information about house listings to be sent to African-American FB subscribers. So if your company is enabling the violation of Federal law, you are fair game.

 It would be impossible for FB to have to vet every single political ad for truthfulness. Then the other issue would be what is considered “untruthful?” If I say that my opponent raised taxes by “almost 5%” but he only raised them 3.5% is that truthful? How about if I say my opponent “hardly ever shows up for a vote” if he misses 40% of sessions? What if in my honest opinion I think those are true? How is FB even supposed to create guidelines as to what amounts to truth and what amounts to exaggeration? Or are we also outlawing exaggeration? Does anyone even care about Free Speech anymore?

This does not mean that there aren’t ways to address the problem with lies in political ads. You could run an ad showing the lie or you could alert the media to the lie and have them report it as well. If I were general counsel to FB I would suggest creating a system resembling the Digital Millennium Copyright Act’s system to put a check on copyright infringement. Under the DMCA, websites that allow third parties to post content like videos or pictures are immune from copyright claims if they comply with the DMCA. The DMCA allows a site to register someone as the site’s DMCA agent. If I see my video put up on a site without permission, I can contact that site’s DMCA agent and let them know the person posting it had no right to do so. The content comes down and the poster gets notification. The person posting it has to respond with proof of right or the content stays down. The same could happen with political ads. If an opponent sees a false ad, they notify FB who notifies the person putting up the ad to verify its content. FB makes the determination of whether its a justifiable claim and their decision is final. This will curtail falsity in ads as politicians will be less likely to risk having their content come down; will provide a system for a response; but will not require FB to fact-check the thousands and thousands of political messages going out daily. (Pretty good right? Let me know Mark, I can be available).

Users of social media have become pretty savvy on what is BS and what has legitimacy. It would place too heavy a burden on social media sites to screen every message for veracity. Government regulation of the content on the internet is a slippery slope no one should be excited about going down.

Follow me on Twitter @oscarmichelen


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A Quick Guide to the Impeachment Process https://courtroomstrategy.com/2019/10/a-quick-guide-to-the-impeachment-process/ https://courtroomstrategy.com/2019/10/a-quick-guide-to-the-impeachment-process/#comments Thu, 24 Oct 2019 18:49:22 +0000 https://courtroomstrategy.com/?p=3926 [...]]]> I am hearing so much noise – most of it from the right but some of it from the left – about the impeachment process that is simply incorrect that I thought I would give a quick guide to the process and what testimony there has been to date in the current impeachment inquiry. And while I am a law professor, most of this comes from research I did back in the 70’s in I.S. 144 during the Nixon impeachment process. Thanks to Mr. Ron Imundi, my social studies teacher and a staunch Republican, who nevertheless thought it was important for us to understand what was going on and why, although he considered Richard Nixon a great President, he simply had to go.

What is Impeachment?

Impeachment is the process by which a legislative body brings charges against a government official. Impeachment does not in itself remove the official definitively from office; it is similar to an indictment in criminal law and so it is basically a statement of charges against the official brought by the legislative body after investigation. 

Article I of the US Constitution gives the House of Representatives the sole power of impeachment and the Senate the sole power to try impeachments of federal officials, including the President. An official who is impeached faces a second legislative vote by the Senate, which determines conviction, or failure to convict, on the charges listed by the impeachment. The US Constitution requires a super-majority to convict. A super-majority is two-thirds of the members.

Andrew Johnson, impeached but dodged conviction by one vote

What are Impeachable Offenses?

The Constitution limits grounds of impeachment to “Treason, Bribery, or other high Crimes and Misdemeanors.” This has led many Fox commentators and some US Senators to say “I don’t see a crime here” as a defense of the President. The precise meaning of the phrase “high Crimes and Misdemeanors” is not defined in the Constitution itself.

But let’s be clear about one thing: It does not have to be a crime and it has never been held to have to be a crime by any court or legislative body despite the language in the Constitution. In fact, the House has brought around 70 proceedings for impeachment since 1789 (mostly for federal judges) and the vast majority were for offenses that did not constitute crimes. Obstruction of justice – not rising to a criminal level – and abuse of power have often been invoked to impeach Federal judges. Most recently Federal Judge Thomas Porteous was impeached and convicted for “corruption.” Other Federal officials have been impeached and removed for drunkenness, biased decision-making, or inducing parties to enter financial transactions, none of which is specifically criminal.

Several commentators have suggested that actually Congress alone may decide for itself what constitutes a “high Crime or Misdemeanor”, especially since the Supreme Court decided in Nixon v. United States that it did not have the authority to determine whether the Senate properly “tried” a defendant. In 1970, then-House minority leader Gerald Ford (R-Mich) defined the criterion as he saw it: “An impeachable offense is whatever a majority of the House of Representatives considers it to be at a given moment in history.”

What’s the Burden of Proof?

The burden of proof required for impeachment is also left to the discretion of the individual Representatives and for conviction, to the Senators. Defendants have argued that impeachment trials are in the nature of criminal proceedings, with convictions carrying grave consequences for the accused, and that therefore “beyond a reasonable doubt”should be the applicable standard. House Managers have argued that a lower standard would be appropriate to better serve the purpose of defending the community against abuse of power, since the defendant does not risk forfeiture of life, liberty or property for which the reasonable doubt standard was originally set

Former Representative Bob Barr, Republican of Georgia who served as a House Manager during the Clinton impeachment trial and is also a former United States Attorney stated, “Impeachment is a creature unto itself. The jury in a criminal case doesn’t set the rules for a case and can’t decide what evidence they want to see and what they won’t.”

Richard Nixon -Never impeached, but resigned just before he was

Prior Impeachments

Since 1789, the House has only voted to impeach 17 times. Of those 17:

No official has been charged with treason. (In 1797, the first impeachment ever, Senator William Blount (Tennessee) was impeached for assisting Britain in capturing Spanish territory. In 1862, Judge West Hughes Humphreys (also Tennessee) was impeached and convicted for siding with the Confederacy and taking a position as a Confederate judge during the Civil War.)

The rest were impeached for a variety of offenses, as stated above, mostly dealing with abuse of power and corruption, but no criminal conduct. The most over-reaching abuse of the impeachment power, in my opinion, was in 1953 when the House commenced impeachment proceedings against Supreme Court Justice William O. Douglas for granting a temporary stay of execution to Julius and Ethel Rosenberg; the case was dismissed by the House Judiciary Committee prior to a vote.

Two US Presidents have been impeached (no, one was not Richard Nixon, who resigned prior to a vote on impeachment).

Andrew Johnson was impeached in 1868 for violating the Tenure of Office Act which prohibited Presidents from firing certain members of the administration without Senate approval (the Act was later declared unconstitutional by the Supreme Court). He was acquitted by the Senate on May 26, 1868, which voted 35–19 in favor of conviction, falling one vote short of two-thirds.

William Jefferson (Bill) Clinton was impeached in 1998 for lying to a Grand Jury convened by Special Prosecutor Kenneth Starr; the lie being that he stated that he had not received oral sex from Monica Lewinsky in the Oval Office, when he in fact had. Another article of impeachment was for obstruction of justice for refusal to obey a House subpoena to turn over certain documents in connection with that investigation. He was acquitted on February 12, 1999 with a vote of 45-55 on the perjury charge and 50-50 on the obstruction charge. The Senate was comprised of 55 Republicans to 45 Democrats at the time of the vote.

Bill Clinton, Impeached but acquitted by the Senate even thought there was a GOP Majority

What would the trial look like?

The Chief Justice of the Supreme Court would preside over the trial in the Senate. The House would appoint certain representatives to act as House Managers (essentially prosecutors). In the Clinton case, 17 House members were appointed managers.

After a reading of the formal impeachment articles, a trial would begin, with the calling of witnesses and the introduction of documents. The President’s lawyer would have the right to cross-examine witnesses, challenge the admissibility of the documents and call his own witnesses and present evidence. The Senate would basically act as jury, deliberate and vote.

Is it Public?

The trial is public, but the investigation in the impeachment process is normally not public. The accused – or the intended accused – does not have a right to participate in the process. In fact, to go back to the Clinton case, Ken Starr was widely criticized for making public certain elements of the investigation. His original report was not provided to President Clinton and was not made public until days after it had been submitted to the House.

This week, several GOP House members stormed into a closed deposition of a high-ranking foreign service official testifying as part of the impeachment inquiry. This sideshow disrupted the proceedings for about five hours until they were removed by the House’s Sergeant-at-Arms. Two things are wrong about the spectacle. (1) It is entirely proper and in fact customary for these to be secret and for the accused to NOT be given any information regarding the ongoing investigation. (2) Several of the GOP House members who staged this protest are on the very committee doing the depositions and would have been in the room they stormed if they just showed up for the deposition. The committee has GOP members on it. This is nonsense.

I am always shocked but pleased to see alleged conservatives care so much about an accused’s rights. Every day, in all 5 boroughs of NY, dozens and dozens of cases are being presented to Grand Juries without any input from the accused. The accused are not entitled to any notice and they are not entitled to know who is testifying or what evidence is being presented. This is exactly the process that applies to an impeachment proceeding.

The trial before the Senate would be public.

NOTE: Stop reading here if you only want to know about impeachment in general. The reset of the piece discusses the specifics of the Trump impeachment inquiry.

President Donald J. Trump – Will he be third US President in history to be impeached?

Where Are We on Trump to Date?

From Wikipedia:

“An impeachment inquiry against President Donald Trump, was initiated on September 24, 2019. It began after a whistleblower alleged that President Trump and top administration officials had pressured the leaders of foreign nations, most notably Ukraine, abusing the power of the presidency to advance Trump’s personal interests. These allegations have been corroborated by testimony so far by William Taylor, the United States’ top envoy to the Ukraine and Trump-appointed White House administration official Fiona Hill and at least six other White House officials, and other witnesses. Additional allegations of misconduct emerged in the days afterwards. The whistleblower’s report was largely based upon information given to them by more than “half a dozen” U.S. officials and has been largely corroborated. The report also implicated Rudy Giuliani, Trump’s personal attorney and US Attorney General William Barr as part of a more widespread pressure campaign directed towards the Ukrainian government. The first whistleblower’s complaint was given to Congress on September 25, 2019, and released to the public the next day. A second whistleblower came forward on October 5, with “first-hand knowledge of allegations” associated with the call between Trump and Ukrainian President Zelensky.”

Since then, Ukrainian officials have also confirmed that they were aware of the quid pro quo being applied. White House Chief of Staff- sorry Acting Chief of Staff- Mike Mulvaney confirmed in a press conference that there was a quid pro quo; that it was routine; and the the country should “Get Over It”. He has since tried to backpedal off those statements.

In her October 14 testimony, Fiona Hill, Top WH advisor on Europe and Russia, a Trump appointee, testified that she and John Bolton then the US National Security adviser objected strenuously to the hijacking of foreign relations with Ukraine by Giuliani. She stated Bolton resigned because he would not be part of (his words) “a drug deal” between Giuliani’s crew and Ukraine.

In his October 16 testimony, Michael McKinley, a Trump appointee, four time ambassador and former senior adviser to Mike Pompeo said:”The timing of my resignation was the result of two overriding concerns: the failure in my view of the State Dept. to offer support to Foreign Service employees caught up in the impeachment inquiry on Ukraine and second by what appears to be the utilization of our ambassadors overseas to advance a domestic political objective. “

In his October 17, testimony, Gordon Sondland, Ambassador to the European Union, Trump appointee and major donor, stated that President Trump had delegated US foreign policy on Ukraine to Rudy Giuliani – a decision he disagreed with but was compelled to follow.

NOTE: As you can see, AFTER they testify, the House releases the transcripts after they have been vetted to make sure that they are not undermining national security and ongoing work by the Foreign Service.

Also NOTE: This to me is very clear and compelling evidence of an abuse of power by Trump and I think more than enough to impeach. I mean, if Clinton could be impeached for lying about getting oral sex, then well, this sure seems worthy of impeachment.

But I also believe there’s lots more coming.

Follow me on Twitter @oscarmichelen

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Its Wrong to Make Wrongly Convicted Drop Legal Claims In Exchange for Freedom https://courtroomstrategy.com/2019/10/its-wrong-to-make-wrongly-convicted-drop-legal-claims-in-exchange-for-freedom/ https://courtroomstrategy.com/2019/10/its-wrong-to-make-wrongly-convicted-drop-legal-claims-in-exchange-for-freedom/#comments Tue, 08 Oct 2019 14:23:33 +0000 https://courtroomstrategy.com/?p=3919 [...]]]> Stephanie Clifford of the New York Times last Tuesday wrote a piece on a growing trend among prosecutors facing motions to vacate wrongful convictions: They will consent to the motion if the defendant agrees to waive his right to seek money damages for his wrongful conviction.

The story focuses on the Philadelphia case of Jimmy Dennis, who had a Federal appeals court vacate his conviction and order a new trial based on newly discovered evidence of his innocence. Rather than give him that new trial, the city offered that if he plead no-contest to third degree murder he could walk out of prison immediately. His other option was to remain incarcerated awaiting trial for at least another year, and then place his hopes on the very system that wrongfully put him there in the first place. Jimmy Dennis chose freedom knowing his plea banned him from seeking money damages for the 28 years he wrongfully spent in prison.

One of the most high profile wrongful conviction cases – that of the West Memphis Three – ended the same way. Following a 2010 decision by the Arkansas Supreme Court regarding newly produced DNA evidence and potential juror misconduct, the West Memphis Three negotiated a plea bargain with prosecutors. On August 19, 2011, they entered Alford pleas which allowed them to assert their innocence while acknowledging that prosecutors have enough evidence to convict them. Judge David Laser accepted the pleas and sentenced the three to time served. They were released with suspended sentences of 10-years, having served 18 years and 78 days in prison. They lost the right to sue but got their immediate freedom. The plea offer put a lot of pressure on the three men as one of them, Damien Echols, was facing the death penalty.

In one of my cases, Emel McDowell and I were in the middle of a hearing to vacate his murder conviction from decades earlier, when new exculpatory Grand Jury testimony was revealed that had never been turned over to his defense lawyers. The prosecutor conducting the hearing offered Emel time-served, right on the spot. If he acknowledged being present and knowing that the gunman was going to shoot the victim, he could get out immediately. It was a lie, but it was lie that would have him home with his family after all those lost years. He took the deal and got out, but still has a felony manslaughter conviction on his record. We are now applying to Kings County DA Eric Gonzalez’s Conviction Review Unit to undo thee conviction so Emel can go to law school and become a lawyer.

Emel McDowell is free but his plea deal is preventing him from becoming a lawyer

Currently, 35 states, the Federal government and the District of Columbia have laws providing for some form of compensation for the wrongfully convicted. Nine of those states (AL, FL, HI, IN, MI, MN, MS, NJ, NC, and WA) cap the amount awarded at$50,000.00 regardless of how long the person served. All the states do not allow juries to determine the amount to be awarded, relying instead on judges, legislators or commissions to set the award.

For small municipalities, awards for wrongful conviction can be staggering. As Ms. Clifford reports in the Times, Gage County in Nebraska has been ordered to pay $28 Million to six exonerees forcing the county to consider bankruptcy protection. But here is the deal, in State wrongful conviction statutes, States can be obligated to pay even without fault, along as the person can prove their innocence. Counties, towns and cities, however, can only be found liable if there was a violation of the person’s civil rights – some form of wrongdoing must be proven. And on top of that, the person must prove their innocence; you don’t get compensated for legal loopholes or procedural errors. This places a high burden on exonerees to win these cases and makes sure that only the actually innocent get compensation.

But making a person give up his right to sue in the middle of a person’s fight for freedom is wrong. Trapped in a cell and having the key dangled in front of you does not afford the best circumstance to make sound legal decisions. Being compensated for losing years of your life by being wrongful conviction is not a lottery win. States are right to afford some measure of compensation for those that have been wronged by society in this fashion. And if a municipality engages in wrongdoing that leads to wrongful imprisonment, then they should be required to pay a just award. It is unfair to put this Hobson’s Choice on the table in the courtroom.

Follow me on Twitter @oscarmichelen

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