Wednesday, September 22, 2010

House Republicans Flexing Their Muscles

It's clear from several House hearings this week, including today's with Geithner, that House Republicans fully expect to be in control come January.

I'm against Republican control for lots of reasons but most of all for the loss of Barney Frank as Chair. No Republican on his committee has anywhere near his breadth of experience or knowledge and Bachus (?), the current Sr. Rep. is a total loss.

Saturday, September 18, 2010

Porteous impeachment trial - more thoughts on perjury

I don't think Porteous deserved to be made a Federal Judge, but I think these charges smell almost as bad as Porteous' behavior and to non-lawyer me show yet again how dishonest prosecutors at all levels of government use the technicalities of the law to punish people they can't otherwise punish.

What do I mean? First, there is all this talk about what Porteous did prior to being named to the Federal Court. It's obvious that he was part of a crony system not uncommon, I suspect, in various parts of the country other than Louisiana. He was, at best, a moocher. But the Senate - which has been holding up most of Obama's judicial appointments for two years, either didn't bother to study his past or ignored it when they confirmed him.
Second, and to me even more troubling, is the use of the perjury club against Porteous and the related attempt to impeach the testimony of witnesses like Gardner. So Porteous signed a fake name to the bankruptcy petition to avoid publicity and submitted a "corrected" form the next day? To the ordinary citizen, this is clearly a "no harm, no foul" situation. It is being used against Porteous only because some people somewhere decided they wanted him off the Federal bench and this is a valid charge to bring against him. As for his lying on the bankruptcy documents about his income & debts in spite of swearing to tell the truth. I would, quite frankly, be surprised if even 10% of bankruptcy filings by individuals (or corporations, for that matter) were complete and honest. People lie. And people lie most about their income and debts. Think divorce trials if you have no experience with bankruptcy.

Should we expect better behavior from lawyers and judges than from ordinary citizens? Theoretically, yes, But the ethics bar for lawyers has always struck me as being both rather low and rarely enforced. As for judges: if you can prove to me that no other judge on the State or Federal circuit has ever engaged in behavior similar to that of Porteous, than I will concede that the impeachment is justified. I'm willing to bet, however, that he is being singled out for reasons that I don't understand and therefore find highly suspicious. These impeachment charges seem to be the judicial equivalent of the charges brought against President Clinton: motivated by politics rather than justice.

Lastly, I absolutely loathe the way trial attorneys use previous testimony to impeach witnesses, and I loathe the fact that they are able to do so. So Gardner today (Thursday, Sept. 16, 2010) said "no" to the posed question that Porteous was one of his best friends in the world, would only admit to his being a "very good friend". No ordinary person would under normal circumstances have accused Gardner of lying either before or now. Maybe he exaggerated before, maybe he no longer feels quite the same way, maybe he's just decided that his previous description of the friendship was juvenile. Big deal. (As for the bail bondsmen and lawyers who gave the FBI a "thumbs up" on Porteous, come on. How many people asked to give a future employer a fair assessment of a candidate don't, if they like the person, emphasize the good stuff and ignore the bad stuff? If this is a crime or evidence of undue influence, than I think you'd be hard-pressed to find a citizen who isn't guilty of such behavior.)

It seems to me that way too many people are being sent to jail for "lying" in circumstances where ordinary people will lie - even under oath. (How many people who sign off on software license agreements have ever actually complied with all the terms let alone even read them?) It may be legal to use "perjury" charges to send people to jail, but in most* of the cases I've seen over the years, it seems to be used awfully selectively - like charging Al Capone with income tax fraud when the government couldn't get a conviction for any of his real crimes.

*The only exception I can think of would be for people who lie under oath during a trial in order either to convict an innocent person or help a guilty person go free.

Porteous and recusal

As near as I can figure out, the undelying reason for impeaching Porteous was his refusal to recuse himself from a trial in which one of the attorneys was a friend "with benefits".

If this is grounds for impeaching a judge, then why is Scalia still on the Supreme Court. He, as I recall, heard a case in which his duck-hunting partner, Dick Cheney, was a party.

Yet another example of the selective application of certain standards of conduct.

Thursday, September 16, 2010

Porteous Impeachment - Using Prior Testimony to Impeach

When Court TV first started, I watched it almost endlessly. And the more I watched, the more disenchanted I began with the legal system on show. Instead of trials being designed to find the truth, to reach justice, it turned out that trials were games with bizarre rules and the winner wasthe team that played the game better, that manipulated the rules better. No wonder so many citizens do their best to avoid jury duty.

Future major trials (such as Simpson's and Clinton's) simply reinforced my opinion. And these hearings confirm them.

In particular, I hate, nay loathe, the way prior testimony is used to impeach current testimony. Heaven forbid that your answer to a question today differs by so much as one word or two from one's testimony 5 or 10 years ago. One doesn't need to be an expert on how memory works to know that it is flawed, and this legal fiction that any variation in one's words from one time to another is proof of dishonesty or perjury is absurd, unfair and makes a mockery of the idea that our legal system cares about justice.

Impeach Porteous to Send a Message?

Turley's basic argument for not impeaching Porteous is not that his behavior is exemplary, but that the misdeeds do not meet the standard demanded by the Constitution - especially since most of the charges date to his time as a State Judge and the bankruptcy issues were both personal and, my reading of Turley's position, trivial.

As Turley points out, the Justice Department declined to prosecute Porteous for his acts while a State Judge - and for lying to the FBI - because it didn't think it could meet the evidentiary demands of a trial. In short, it passed the buck, telling the House and Senate to do what it could not do.

The two main issues with the bankruptcy seem to be that the Judge signed a false name, on advice of his attorney, when he filed and didn't fully report all his income and debts. He did sign a false name, apparently (and there's no reason to doubt this) to avoid the embarrassment of having his name appear as a bankrupt in the local papers. The filing was amended the following day, under his real name. The House argues that he perjured himself. Period. Yes, but. This smacks all too much of how the system uses a technical but non-material matter to punish somebody for some activity that one disapproves of (either with or without substantive grounds for that disapproval). In short, if this kind of legal misdeed, even by a judge, is enough to justify impeachment then any judge who angers the PTB could be removed for some misdeed of some kind since few of us get through life without doing something we wish we hadn't.

The second issue has to do with the judge's failure to fully and honestly report all his income (including an income tax refund)and his gambling debts as well as his incurrence of additional debt (gambling) while in bankruptcy (something he swore not to do). Since he signed the bankruptcy papers under threat of perjury, he is guilty of perjury and therefore deserves to be impeached. My problem with this is that, once again, perjury is being used as a weapon in a situation that, under most circumstances, would not result in any action against the individual. Indeed, in my own non-legal opinion, it seems to me that perjury is used all too often to impose political and legal penalties when the accusers have no other tools at hand.

In other words, if he were not a judge, if he were an ordinary citizen, neither of these acts would, I suspect, result in any legal action against the debtor involved.

Turley's other main, unspoken, argument is that Porteous as a State Judge did not act differently than any other Judge in his part of Louisiana and that the entire impeachment is, in essence, due to a decision the Judge made in a case that angered the PTB. And it would set a bad precedent to impeach a judge because, in essence, of a decision he issued as a judge.

OTOH, the main unspoken argument for his impeachment seems to be that it would send a message to State Judges and potential judicial appointees that certain types of behavior can be expected to be punished - even if they are not disclosed prior to the receipt of a judicial appointment. This is the "long-term jail terms and the death penalty prevent crime" argument.

Quite frankly, I think Porteous should have resigned and it is obvious to me that he didn't because he needs the income of a lifetime appointment - as well as the pension. He is by no means a sympathetic defendant.

So the issue comes down to which is worse: using essentially spurious charges to unseat a Federal Judge - thus considerably lowing the bar for impeachment (like the impeachment of Clinton dud) - or telling the legal community that unethical if not outright illegal behavior is no bar to getting a Federal Judgeship.

Claire McCaskill - Impeachment Hearing - kudos

I've seen McCaskill often during the past two years and she represents exactly the kind of person one would want a Senator to be: principled, articulate, willing to compromise.

But one of her best characteristics is on view during this impeachment hearing. She is, in contrast to windbags Hatch and Whitehead, direct, no-nonsense, and to-the-point.


Tuesday, September 14, 2010

Impeachment Trial for Judge Porteous - Painful Testimoney on Tues. 9/14/2010

As of the 2nd day of this trial, the most painful (difficult to watch) witness examinations were those of the bail bondsmen, esp. those by Rep. Hank Johnson of Jeffrey Duhon & Aubrey Wallace. The questions, as have been many by all of the attorneys on both sides, were often needlessly repetitive* - but neither Representative Johnson nor the witnesses (esp. Duhon)were particularly effective speakers - to put it mildly. Indeed, the personal discomfort of these witnesses was so obvious, I felt almost as if I were watching adults abusing puppies. And, yes, this is a question of class. Most of the people who testify in Congress are both rich and powerful or, if ordinary citizens, are people who have been selected for what might be called their "acceptability". I was saddened by the obvious lack of education of these (mainly) men - but, in spite of their illegal acts, the effort they put into their work differed only in quality & remuneration from that of many of the CEOs who we see daily.

I've seen Johnson in a number of House hearings and Floor speeches and his performance today pretty much confirmed my impression of him: a man either of middling intellect or a remarkable, for a politician, inability to express himself fluently.

*a majority of the Senators on the panel are/have been lawyers &/or prosecutors so the endless repetition of the instances of influence peddling so far alleged (free meals, trips to Las Vegas, hunting & fishing trips, etc.) is bizarre to watch esp. since the Defense doesn't deny that these actions occurred but only seems to be questioning whether or not such actions were customary at the time they occurred (almost all, it appears, happened before Porteous became a Federal Judge and a lot go back 15-25 years).