Sterling Terrance Hospedales Org

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  • Are Calls To Your Attorney Really Private?

    What one should learn from this article? One should learn that a call from jail is NOT private and confidential even if to one’s attorney. Not only can police overhear what one is saying, but police can record the entire call and use it for any admissions made or plans to escape or smuggle in weapons or drugs to jail. Prosecutors can also listen to the calls, all of which are recorded.

    When a person is in jail, he or she wants to talk to his family, loved ones and his or her attorney.  Using California as an example, under Penal Code § 851.5, an arrestee is permitted three local phone calls within a three hour period after being booked.  Local telephone calls are free.  If one wants more than three calls during the first three hours, the jailer has discretion to allow this. 

    Phone calls to an attorney will necessarily involve a discussion of the facts.  He or she may have urgent questions for the attorney and, in order to answer, the attorney will necessarily have to know the case facts and what the client did or did not do.  Naturally, the client will worry about incriminating information being gathered by an eavesdropping listener or the phone call being recorded.

    While Penal Code § 636 forbids eavesdropping on a call between an attorney and a client, all phone calls from jail are automatically recorded by a private phone company.  The calls can then be reviewed at a later time by police, or a district attorney if they believe the calls may contain evidence of witness intimidation, discussions about escaping from jail or other specified offenses.  Penal Code § 629.50 – 629.98; 18 U.S.C. § § 2516- 2518.  

    In some counties, attorneys can seek an exemption to have their office phone number exempted from recording.  When the client calls the number from the jail, the usual recording that “this phone call may be monitored” is absent.  In other counties, such as in Orange County, there are special phones that inmates can use to call attorneys and such calls are not recorded.  All calls from prison, on the other hand, are recorded unless the inmate obtains an order exempting his call from recording.

    While such provisions may seem reassuring to some, it is prudent to be aware that all other calls (i.e. not to an attorney) are subject to more active monitoring.  Our office has experienced police using a client’s statement to his family, on a call placed from the police station, against him.  In that call, for example, our client admitted he had drank seven or eight beers before driving.

    Likewise, it is best if the client does not speak to any witness from jail, as such calls can be used against the client as attempts to dissuade a witness or an admission of guilt.  People v. Cribas (1991) 231 Cal.App. 3d 596, 282 Cal Rptr. 538.

    Admissions of guilt are also likely or a least possible when a client in jail speaks to a bail bondsman, an employer because he is missing work, or a family member arranging an attorney.  Jail personnel can certainly overhear such conversations and report them.  Kuhlmann v. Wilson (1996) 477 U.S. 436, 91 L.Ed. 2d 364, 106 S.Ct. 2616.

    Other inmates also may not really be “other” inmates.  While it is rare for police to use government informants posing as inmates, it does happen with more serious crimes.  A client’s statements to such an informant certainly are admissible against the client as admissions.  Kuhlman, supra; People v. Hovey (1988) 44 Cal. 3d 543, 559, 244 Cal. Rptr. 121.  This is so, courts have reasoned, because the inmate was not given Miranda warnings to advise him or her of the Fifth Amendment rights at issue.  Illinois v. Perkins (1990) 496 U.S. 292, 296, 110 L. Ed. 243, 250, 110 S.Ct. 2394.

    While this may seem like a trick, police officers often also offer to make a call for an inmate and then dial the number.  The officer then stands nearby, as if waiting for the phone to use it when done, for another inmate.  When this happens, police can then listen to what is said and use it against the client.

    It is always best if a personal visit can be arranged instead of a phone call, although time does not always allow this.  It merits mention, however, that it is a misdemeanor for a police officer having custody of an arrested person to willfully refuse or neglect to allow the arrested person’s attorney to visit the prisoner.  Penal Code § 825 (b).  This code section has been held to allow the arrestee to recover $500 in damages when such a visit is refused.  Beltran v. Appellate Dept (1977) 66 Cal. App. 3d 711, 136 Cal. Rptr. 211.

    A face-to-face visit, without wire screens or glass between the attorney and client is best.  This allows the review of documents, to have other documents signed, and simply, to eliminate the fear of eavesdropping.  Such face-to-face meetings allow whispering, if the client fears the meeting is “bugged.” Most importantly, such a face-to face meeting allows the client to establish a good working relationship and rapport with the attorney, which is crucial to an effective defense. 

    As to any other conversations not involving someone in jail, Penal Code § 632 applies.  Not only is it a crime to record without permission, but a person whose conversation is recorded can get a minimum of $5,000.00 damages through the statute.  It is the secret recording that is the gravaman of the offense, not whether the conversation was heard by a private investigator or police.  Many people believe that the conversation must be confidential and if it was in front of others it is not confidential.  This is not required at all.  The wrong is the recording without knowledge or permission.  If you can prove this took place, hire an attorney to demand $5,000.

  • Georgia Sheriff Finally Pleads Guilty

    Kristopher Coody, a former Georgia sheriff, resigned and pleaded guilty to misdemeanor sexual battery for inappropriately touching Judge Glenda Hatchett in January 2022.

    According to the Associated Press, Coody was sentenced to one year of probation and ordered to pay a $500 fine and complete 400 hours of community service.

    Shortly after receiving his sentence on Monday, Coody announced his guilty plea and resignation in a statement.

    “To be clear, I had no intent to touch Ms. Hatchett inappropriately,” he also noted in the statement, WMAZ reported. “Unfortunately, I acted in a careless manner and for that, I have taken full responsibility for my actions.”

    Coody had served as sheriff since 2017.

    Hatchett addressed the court, explaining her experience pre- and post-trial.

    “My entire professional career, I have been involved in supporting victims,” she said. “I have seen in my courtroom so many victims over the years.”

    She continued, “To be on this side of this is very difficult. It is important for the defendant and everyone present to understand the horrific effect this has had on me. This has cut me to the core.”

    Cobb State Court Judge Carl Bowers, who presided over the case, apologized to Hatchett for her experience and how long the case took. He also thanked her for attending Monday’s hearing.

    In addition to probation, community service and the fine, Coody must complete a psychosexual evaluation and an alcohol and drug course. Pugh said he’s already done the latter.

    Bowers also instructed him to refrain from contacting Hatchett. If he violates that order, Bowers made his stance clear.

    “I will lock you up,” he said on Monday. “Not a threat, simply a promise.”

  • FREEDOM OF INFORMATION ACT BASICS

    What is the FOIA?
    Enacted in 1966, The Freedom of Information Act (FOIA) is a federal law that establishes the public’s right to obtain information from federal government agencies. The FOIA is codified at 5 U.S.C. Section 552. “Any person” can file a FOIA request, including U.S. citizens, foreign nationals, organizations, associations, and universities. In 1974, after the Watergate scandal, the Act was amended to force greater agency compliance. It was also amended in 1996 to allow for greater access to electronic information.

    Who can I send a FOIA request to?
    The FOIA applies to Executive Branch departments, agencies, and offices; federal regulatory agencies; and federal corporations. Congress, the federal courts, and parts of the Executive Office of the President that function solely to advise and assist the President, are NOT subject to the FOIA. Records obtainable under the FOIA include all “agency records” – such as print documents, photographs, videos, maps, e-mail and electronic records – that were created or obtained by a Federal agency and are, at the time the request is filed, in that agency’s possession and control. Agencies are required by FOIA to maintain information about how to make a FOIA request, including a handbook, reference guide, indexes, and descriptions of information locator systems. The best place to get this information is on the agencies’ websites. Doing research to determine the right office to send the FOIA request to within the right component of the right agency will make your FOIA efforts more productive.

    What are the FOIA exemptions?

    Exemption (b)(1) – National Security Information
    Exemption (b)(2) – Internal Personnel Rules and Practices
    – “High” (b)(2) – Substantial internal matters, disclosure would risk circumvention of a legal requirement
    – “Low” (b)(2) – Internal matters that are essentially trivial in nature.
    Exemption (b)(3) – Information exempt under other laws
    Exemption (b)(4) – Confidential Business Information
    Exemption (b)(5) – Inter or intra agency communication that is subject to deliberative process, litigation, and other privileges
    Exemption (b)(6) – Personal Privacy
    Exemption (b)(7) – Law Enforcement Records that implicate one of 6 enumerated concerns
    Exemption (b)(8) – Financial Institutions
    Exemption (b)(9) – Geological Information

    How can I obtain agency records without using the FOIA?
    Older material dated before the mid-1970s may be available at the National Archives and Records Administration in Washington, DC or College Park, MD, or at one of the Presidential libraries. These archives are great places to do research using readily available documents. If the documents you seek are not yet publicly available, a requester may also file a Mandatory Declassification Review (MDR) request rather than a Freedom of Information Act request. The laws are similar, but have some key differences.

    Benefits to submitting an MDR request instead of a FOIA –

    • Under mandatory declassification review, there is a two-appeal system. The first appeal is to the agency denying the records and, if the agency continues to deny records, there is an opportunity for a second appeal to the Interagency Security Classification Appeals Panel (ISCAP) for a decision.
    • In its report to the president on its 2002 activities, ISCAP noted that it had reversed agency classification of information in 75 percent of the documents it reviewed. The President of the United States is empowered to overrule ISCAP decisions.

    Benefits to submitting a FOIA request instead of an MDR –

    FOIA requests are more appropriate if you have a large or imprecise request that covers many different kinds of classified and unclassified documents. Only classified documents are subject to MDR. FOIA covers both classified and unclassified material.
    ” FOI requesters appeal denials of their requests within the agency and then to court. For the duration of the processing of an MDR request, the requester loses the opportunity to argue in court for the release of the records.
    ” Also, under the mandatory declassification review, agencies are allotted a longer time to respond to requesters, do not have to abide by expedited review requirements and are not authorized to waive fees. Under the FOIA agencies have specific time requirements, as well as opportunities for expedited review and fee waivers.
    Requesters should seek mandatory declassification review only if they have a very clear idea of the records they are seeking (for example, knowing a specific document by name), if they also know that the records are 10+ years old, and that the records are probably still classified. Otherwise a FOIA request is a requester’s best bet.

    What does it cost to make a FOIA request?

    Agencies are authorized to charge certain fees associated with the processing of requests. Some categories of requesters cannot be charged these fees and in some cases fees can be reduced or waived.

    FEE CATEGORIES

    Under the FOIA, solely for fee purposes, an agency is required to determine the projected use of the records sought by the FOIA request and the type of requester asking for the documents. As the FOIA was intended to promote the public’s access to information, news media organizations and educational institutions are excused from certain fees.

    Fee categories for FOIA are:

    1) Commercial – Companies that or people who seek information for a use or purpose that furthers commercial, trade, or profit interests, including for use in litigation. Commercial requesters are required to pay for search, review and duplication costs.

    2) Educational Institution – Preschools, public or private elementary or secondary schools, and institutions of graduate higher education, undergraduate higher education, professional education, or vocational education that operate a program(s) of scholarly research. Educational requesters are required to pay duplication costs, but are entitled to the first 100 pages without charge.

    3) Non-Commercial Scientific Institution – Non-commercially operated institutions that conduct scientific research not intended to promote any particular product or industry. Non-commercial requesters are required to pay duplication costs, but are entitled to the first 100 pages without charge.

    4) Representative of the News Media – People who actively gather news for entities organized and operated to publish or broadcast news to the public. News Media requesters are required to pay for duplication, but are entitled to the first 100 pages without charge.

    5) Other Requesters – Requesters who do not fit into any of the above categories. These requesters are persons who are not commercial, news media, scientific or educational requesters and are required to pay search costs for more than 2 hours and duplication costs for more than 100 pages.

    To demonstrate that you belong in an educational, news media or non-commercial fee category, provide information about the intended professional scholarly or journalistic uses of the information you receive. List any relevant previous or pending publications, including books, articles, dissertations, publication contracts or letters of intent or interest, or similar information that shows your ability to disseminate the information you receive from the agency. State that the materials are not requested solely for a private, profit-making commercial purpose. You should request that, to the extent any fees are assessable, the agency notify you if those fees will exceed an amount you specify. For a court decision interpreting the fee provisions of the FOIA, see National Security Archive v. Department of Defense, 880 F.2d 1381 (D.C. Cir. 1989).

    Actual search, review and duplication fees vary by agency. Search/Review fees can be anywhere $8.00 to $45.00 per hour and duplication fees can be from $.10 to $.35 per page. Agencies cannot require a requester to make an advance payment unless the agency estimates that the fee is likely to exceed $250 or the requester previously failed to pay proper fees.

    FEE WAIVERS

    Under the FOIA it is possible to have all fees, including copying, waived by the agency if the material requested “is likely to contribute significantly to public understanding of the operations or activities of government and is not primarily in the commercial interest of the requester.” If your request fits this statutory criterion, you should make your case for a fee waiver in your request letter as strongly as possible. Be sure to describe the scholarly, historical, or current public interest in the material requested, identify specific operations or activities of government to which the request relates, why the information will contribute to an understanding of those activities and operations, why the public in general would be interested, and why the disclosure would be significant.

    What happens after I make a FOIA request?
    Ideally, the agency will promptly release everything you requested. More common agency responses (and suggested actions you can take) include the following:

    • You receive an acknowledgment of your request and a statement that the request has been placed in the queue and will be processed in its turn. Agencies are allowed to process requests on a first-come, first-served basis, and may also process requests in separate queues depending on their complexity. If the agency has a backlog of requests (and most do), you may have to wait some time before you receive the materials you seek. Call or write the FOIA office to follow up on requests that have been pending for an unreasonable period of time. Get the names of specific FOIA personnel you can contact about your request. If agencies fail to meet the twenty-business day response time provided by the FOIA, you are entitled to file an administrative appeal or a lawsuit. Please keep in mind that if your request is complex and of a sensitive nature the agency will require a significant amount of time to search and review the responsive records. It can take years to get a response to a FOIA request.
    • Your request for a fee waiver is acknowledged but more information is sought before the agency will begin processing the request. Sometimes the agency asks a series of questions, sometimes a multi-page questionnaire may be enclosed for you to fill out and return. The best way to avoid this response is to provide as much information as possible in your initial letter to support your request for a fee waiver.
    • The agency says that no records were found in response to your request, or informs you that your request is too broad. Call or write the FOIA office and ask what additional information is needed from you to make your request more specific. Explain why you believe the agency has material responsive to your request and inquire about other places in the agency’s files where relevant records might be found. If no records were found you may send an appeal questioning the agency’s adequacy of search.
    • Information relevant to your request is found, but the agency withholds all or part of it. The FOIA allows an agency only nine exemptions from its obligation to provide information in response to a request. The citation of these exemptions, found at 5 U.S.C. Section 552(b) and listed above, can be appealed.

    How can I appeal an adverse response?
    It is worthwhile to file an administrative appeal if the agency’s response is unsatisfactory. Appeals can be effective to successfully challenge excessive processing delays, fee waiver denials, and the improper full or partial withholdings of responsive documents. Agency regulations governing appeals vary; take careful note of the instructions for filing an appeal in the agency’s response to ensure that your appeal is timely. An appeal letter should state the grounds for appeal and reasons why the agency’s response to the request was improper, request a more precise explanation of the agency’s decision (if the reasons for the initial determination were unclear), and say that you expect a final ruling on the appeal within the 20-day statutory time limit.

    What else should I know?
    Don’t be discouraged if the agency is less than fully responsive to your request. Contact the agency’s FOIA office to check on the status of your request and to see if additional information is needed to expedite processing or to clarify what you want. Keep copies of all your correspondence and notes of all phone calls. Always file an appeal letter if the initial response is inadequate. If the agency fails to respond satisfactorily, you may wish to seek the assistance of a member of Congress to contact the agency on your behalf. If all else fails, you have the right to go to court to force the agency to release the documents.

    What unexpected problems might I encounter during the FOIA process?

    (1) Delays, delays, delays – For a variety of reasons most agency FOIA offices suffer from a backlog of requests which can amount to an enormous delay for a FOIA requester. Keep your request as targeted and concise as possible and do as much research as you can on where the documents requested could be located within the agency. Finding aids are great tools. If you have the agency’s box number, file or document number, your request will be processed faster. Keep in contact with the FOIA office to make sure your request has not fallen through the cracks.

    (2) Operational Files Exemption – A 1984 law allowed the CIA to exempt its operational files from the search and review requirements of the Freedom of Information Act. Similar operational files exemptions exist for the National Reconnaissance Office (NRO), the National Geospatial-Intelligence Agency (NGA) – formerly the National Imagery and Mapping Agency (NIMA) – and the National Security Agency (NSA). This allows these agencies or certain components of these agencies to exempt their working files from the search and review requirements of the Freedom of Information Act (FOIA).

    (3) Glomar – Agencies can avoid a decision on the release of records if the fact of the existence of the records is in itself classifiable. In a FOIA case involving a request for records pertaining to the submarine retrieval ship the Glomar Explorer, an appeals court allowed the CIA to neither confirm nor deny the existence of the requested records. The “Glomar” response has been routinely invoked since if an agency wishes to withhold disclosing the existence or lack of existence of records.

    (4) Dubious Secrecy – Although the FOIA has standardized language and there exist specific guidelines for redaction processes, there can be differences in decisions to withhold information, both between and within agencies. In the appeal process these discrepancies should be worked out, but some mistakes may follow through to a final decision.

  • LAW SCHOOL RANKINGS FALL FROM GRACE

    It has been a tough year for U.S. News college rankings. In September, Columbia University dropped from #2 to #18 in the country after misreporting data, allowing Cornell to rise to the number one school in New York. Not complaining about this one, but how this blunder could have happened in the first place called into question the integrity and validity of the rankings. Now, just a few months later, several of the T14 law schools (the 14 highest ranked law schools in the country according to U.S News) have elected to drop out of the rankings altogether. 

    On Wednesday, Yale Law School announced that it would no longer be taking part in the U.S News law school rankings. Shortly after that same day, Harvard Law said the same, and the next day, Berkeley Law followed. Later in the week, Stanford, Columbia and Georgetown law schools also shared their withdrawals from participation in the rankings as well.  

    The schools that have opted to drop from the rankings all cite fundamental problems with the way the rankings are determined. Among many of the issues voiced by the law schools’ deans, there are a few especially salient points. They explain that the rankings incentivize law schools to admit high-income students over low-income ones in order to reduce the schools’ average student debt upon graduation. The rankings also discourage law schools from dedicating resources to students who will go into public interest law or obtain additional degrees after graduation. U.S. News does not consider these students to be employed (or fully employed), therefore hurting schools that encourage students to pursue these options.  

    To add to the whirlwind that is currently law school admissions. The American Bar Association also announced Friday that LSAT scores will no longer be a required part of application materials starting in the 2025 cycle. Law schools themselves can still require test scores, but they will no longer be mandated by the ABA. 

    As a current junior at Cornell, I am just starting my law school application journey. I have started to seriously consider the schools I will apply to and have begun studying for the LSAT. To say that I did not use the U.S. News rankings when considering which schools I want to apply to would be false. In fact, I’ve referred to it a lot. As a first-generation student, I am proud of the upward mobility that has gotten me to Cornell, and it would be misleading for me to say that I’m not looking to maintain that upward mobility in terms of where I go to law school. It’s blunt, but it’s the truth. I came to Cornell to open doors for further opportunities, and those doors are labeled with the names of the T14 law schools. The same is true for many of my peers. The fact of the matter is, the law schools within the T14 rankings come with unparalleled name recognition that put you ahead of the game. Now that these schools have opted to drop from the rankings, what does that mean for students like me?

    To start, U.S. News shared in a statement that the law schools will continue to be ranked. A lot of the information used in the rankings is public information regardless of whether the schools submit directly to U.S. News. The schools’ announcements to drop from the rankings is more symbolic in nature, with a deeper meaning behind it that says they will no longer cater their admissions process and other functions towards maintaining or improving their rank. For a student like me, this speaks volumes. 

    Let’s be frank, regardless of what happens now, the T14 schools still have a solid reputation backing them up, and they won’t be hurting for qualified applicants anytime soon. While the U.S. News rankings certainly helped to guide my law school search, it wasn’t the only factor. One of my biggest considerations has been the quality of resources the schools provide for first-generation students. Often, law schools will flaunt the percentage of students in their class profiles who are the first to college, without actually offering any substantive information on the means through which they support those students. Watching these law schools put words to action and value their students over their rankings will have a huge impact on students like me who are in search of a law school that will support them and help facilitate their growth. The law schools that have not taken this step — Cornell, I’m looking at you — are sending a message to their students, whether intentional or not, that they value their prestige over their students.

    Still, as U.S. News argued in their statement, there is value in students being able to compare law schools throughout the application process. During the Obama administration, a scorecard system was created to give students applying to undergraduate programs a resource to compare information on the colleges. The scorecard system makes a point to not rank the colleges, but instead provide what students need to make an informed decision. It includes information on cost, graduation rates, demographics and more. The same should be done for law schools to ensure students are well-informed about their options without law schools feeling compelled to structure their admissions around improving their rank.

    As for the ABA’s recent decision regarding the LSAT requirements: I’m ambivalent. The decision was made in part to level the playing field for students who can’t afford private tutors or expensive LSAT prep courses. As one of those students, I respect the attempt, but I’m not convinced the result will be as intended. The LSAT has the potential to highlight the capabilities of intelligent, hard-working students whose resumes are slightly less sparkly because they didn’t have certain opportunities, like fancy internships through their parents’ connections. Additionally, without the LSAT, law schools will place a higher weight on students’ GPAs, which can vary greatly among majors and colleges for a variety of reasons. That said, I am excited to see the ABA take steps towards acknowledging the disparities in LSAT prep options, but perhaps a better solution would be to create more free LSAT resources than the limited options currently available. 

    There is a better world of law school admissions out there. One that is more equitable and ensures a legal education is available to all students who are intellectually (not just financially) capable. One in which rankings accurately reflect what a school can do for its students. This is an exciting and dynamic time for law schools and applicants alike, and I look forward to a future where law school is a genuinely attainable option for anyone whose passion drives them to it. 

  • Let’s Put an End to Prosecutorial Immunity

    JABBAR COLLINS LANGUISHED in jail for over 16 years for a murder he apparently never committed. He was only freed a few years ago when it was revealed at a post-conviction hearing that the main witness at his trial had told the prosecutor that he was pressured by police to lie about Collins’ involvement in the murder.

    The prosecutor, representing the Brooklyn District Attorney’s office, never shared that information with Collins’ lawyer—an egregious violation of the law, which requires the government to inform the defense of any exculpatory evidence. At the hearing, the judge who tossed out Collins’ conviction called the conduct of the prosecutor and the DA’s office “shameful” and a “tragedy.”

    I have been a federal district judge for the past 23 years sitting in the Brooklyn Federal Courthouse. I have sentenced murderers, rapists, gangsters, drug lords, stock cheats, and just about every other type of criminal, but they were all clearly guilty of their crimes and I was able to sleep at night knowing that they deserved to be sitting in jail—some for the rest of their lives. I do lose sleep, however, over the Collins case and the rash of wrongful convictions that are continuing to be uncovered to this date in Brooklyn.

    The Collins case turned out to be the tip of the iceberg. Soon many other wrongful convictions, orchestrated by other Brooklyn prosecutors, began to surface. It became a huge scandal and a black mark against the criminal justice system in Brooklyn. It also animated a crusading civil rights lawyer named Ken Thompson to campaign against and defeat a 20-plus-year incumbent, making Thompson the first African-American district attorney in Brooklyn’s history.

    When Thompson took over a few years ago, he appointed a blue-ribbon committee to investigate all the alleged wrongful convictions the DA’s office had obtained throughout the years. So far, over 20 cases have been unearthed—almost all against poor African Americans.Many others are still being investigated. The phony cases have run the gamut from prosecutors not turning over exculpatory evidence (as in Collins’ case), to using false testimony from the same supposed eye-witness in at least three unrelated cases.

    After Collins was released, he brought a civil case seeking monetary damages against his prosecutor, the district attorney, and the City of New York. I was the judge who drew that case. I held that the City could be held liable for its misdeeds but I had to dismiss the case against the prosecutor and district attorney on the grounds of prosecutorial immunity. In my decision, I quoted the binding circuit court precedent I was duty-bound to follow.

    According to Taylor v. Kavanagh, based upon Supreme Court law, “The falsification of evidence and the coercion of witnesses…have been held to be prosecutorial activities for which absolute immunity applies. Similarly, because a prosecutor is acting as an advocate in a judicial proceeding, the solicitation and subornation of perjured testimony, the withholding of evidence, or the introduction of illegally-seized evidence at trial does not create liability in damages.”

    The law goes on to say that the rationale for this approach is “sound, for these protected activities, while deplorable, involve decisions of judgment affecting the course of a prosecution.”

    I question the soundness of this rationale, however. The “solicitation and subornation of perjured testimony, the withholding of evidence, or the introduction of illegally-seized evidence at trial” are not “decisions of judgment;” they are truly “deplorable” intentional acts—the antithesis of the exercise of judgment. Professional prosecutors, charged with the awesome responsibility of faithfully applying the law to guard against innocent people being convicted of crimes they did not commit, should be held accountable for such conduct.

    Because of the present status of the law, the prosecutors responsible for the wrongful convictions have neither been held criminally nor civilly responsible for their shameful conduct. Also troubling, taxpayers have had to foot the bill for millions of dollars in settlements from New York City and the State of New York, which are on the hook for the prosecutors’ misdeeds, and more are undoubtedly in the hopper. Collins settled his case for $13 million. Ron Kuby, the civil rights lawyer who represented a number of the wrongfully convicted in Brooklyn, recently told me that he believes the government has so far paid out between $300 million and $400 million.

    And the problem of wrongful convictions is not endemic to Brooklyn. For example, just a few years ago Senator Ted Stevens’ conviction was overturned because of egregious behavior by two overzealous prosecutors for the Justice Department. And there have been many recently reported in other parts of the country.

    It seems to me that the time has come to create some level of accountability for prosecutors.

    First, the cloak of absolute immunity should judicially or legislatively be lifted. Police officers do not have it and they are held accountable in courts of law for their egregious behavior. We wisely do not give our law enforcement officers, or even the President, carte blanche to do as they please; bad prosecutors should similarly be accountable.

    Second, steps can be taken by the legal establishment to punish such behavior. All prosecutors are lawyers and their licenses to practice law require them to abide by legally prescribed canons of ethics enforceable by the bar and the courts. Admirably, just a few months ago, the Indiana Supreme Court suspended the chief deputy prosecutor of LaPorte County, Indiana from the practice of law for a minimum of four years with no automatic right of reinstatement for eavesdropping on an attorney-client conversation. As in Collins’ case, the court described this conduct as “deplorable.” Other states should follow this lead.

    Third, prosecutors who intentionally withhold exculpatory evidence resulting in a wrongful conviction should be prosecuted for obstruction of justice. The good ones need not be concerned, but the bad “deplorable” ones should know that there might be civil, and even criminal, consequences for misconduct.

    We all hold dear to the time-honored notion that “no one is above the law.” Truly horrendous prosecutors who have put innocent people in jail should not be an exception.

  • Honest Mistake? I Think Not!

    By Sterling Hospedales

    130 federal judges broke the law and violated ethics by hearing cases involving companies they had a financial interest in over 11 years

    • An investigation found that more than 130 judges violated US law by overseeing cases involving companies in which they or their family held direct stock
    • The report found that these judges have improperly failed to recuse themselves from 685 US court cases since 2010
    • The jurists were appointed by presidents whose terms have spanned seven decades, from Lyndon B. Johnson to Donald J. Trump
    • Roughly two-thirds of the 131 jurists’ rulings ended up being in favor of their or their family’s financial interests
    • Of the two-thirds of judges who disclosed stock holdings, about a fifth of them presided over at least one case that involved their stock, the report showed

    An investigation found that 131 federal judges violated US law by overseeing cases involving companies in which they or their family held direct stock, the Wall Street Journal reported. 

    The judges failed to recuse themselves from 685 cases across the nation in which they held financial interest since 2010, the investigation revealed.  

    What’s more, when the judges participated in these cases, roughly two-thirds of their rulings ended up being in favor of their or their family’s financial interests.

    While there are no laws that prohibit judges from owning stocks, the federal jurists’ code of conduct demands judges recuse themselves in the event that they hold any semblance of financial interest in a case – or, the ‘ownership of a legal or equitable interest, however small,’ as the set of regulations defines it.

    The cases in question were all held between the years 2010 and 2020 – and of the two-thirds of federal judges who disclosed individual stock holdings, roughly a fifth of them presided over at least one case that involved their stock, the investigation showed. 

    After the Journal notified the judges of the findings of their sprawling study, 56 of the lawmen began to alert parties involved in 329 of the lawsuits, of their conflict of interest.

    Judges offered multiple explanations for their infringements when confronted by the paper.

    Most deflected the blame, citing administrative errors and arguing yjay their recusal lists contained misspellings that caused cases to slip through the cracks of their conflict-screening software. 

    Other judges called attention to rulings they made that resulted in their own financial losses. 

    With that said, the majority of jurists named in the study benefited greatly from the inside information.

    In New York, for instance, Judge Edgardo Ramos presided over a lawsuit between an Exxon Mobil Corp. unit and TIG Insurance Co. over a pollution concern – while owning between $15,001 and $50,000 of Exxon stock.  

    Ramos eventually ruled that TIG should pay Exxon $25 million, and even added $8 million of interest to the judgment.

    An federal court official argued that Ramos was unaware of the legal infracting he committed taking the case, as his ‘recusal list’ included only the parent company Exxon, and not the unit – and therefore was overlooked by court conflict-screening software, which worked only through exact matches.

    The unit, however, had previously informed the court at the outset of the case that it was a subsidiary of Exxon, so that Ramos – who was appointed by Barack Obama  -could ‘evaluate possible disqualification or recusal,’ court filings indicated. 

    In Colorado, Judge Lewis Babcock oversaw particularly troubling proceedings involving a Comcast Corp. subsidiary, in which he ruled in the telecommunications company’s favor after several of their employees were accused of harassing a family in Colorado. 

    In the case, a couple accused the telephone service company’s employees of threatening them, intimidating their 10-year-old daughter, and physically injuring their dog. 

    The pair asked Babcock to issue a judicial order barring the company from accessing their property to install fiber-optic cables. 

    Babcock – who was appointed by Ronald Reagan – ruled that the couple had ‘continually blocked Comcast’s access to the easement,’ and sent the case back to state court, which was what Comcast wanted.

    All the while, the judge or his family reportedly held between $15,001 and $50,000 in Comcast stock, the report revealed. 

    ‘I dropped the ball,’ Babcock attested when asked about his conflict of interest in the case. 

    The jurist went on to blame the infraction on internal administrative mishaps, and thanked the Journal for ‘helping me stay on my toes the way I’m supposed to.’

    Meanwhile, at an Ohio-based appeals court, Judge Julia Smith Gibbons authored an opinion that favored Ford Motor Co. in one particular court proceeding in 2014 – while her husband, Bill Gibbons, owned stock in the automaker. 

    Prior to Gibbons’ ruling, her husband’s financial advisor promptly purchased even more Ford stock, for his retirement account. 

    Gibbons – appointed by George W. Bush – claimed she had mistakenly assumed that a holding in her husband’s retirement account did not constitute a conflict of interest, and therefore require her recusal.

    ‘I regret my misunderstanding, but I assure you it was an honest one,’ Gibbons attested.

    A slew of judges who failed to disqualify themselves from cases that could potentially benefit them financially were named in the bombshell report – with jurists being appointed by presidents spanning seven decades, from Lyndon Johnson to Donald Trump.

    The Administrative Office of the U.S. Courts responded to the Journal’s exposé Tuesday, stating, ‘The Wall Street Journal’s report on instances where conflicts inadvertently were not identified before a case was resolved or transferred is troubling, and the Administrative Office is carefully reviewing the matter.’

    The office added that the federal judiciary branch of the US government ‘takes very seriously its obligations to preclude any financial conflicts of interest,’ and has since enacted measures – such as more advanced conflict-screening software and vigorous ethics training – to prevent such violations in the future.