Friday, August 24, 2007

And now for something completely different.

Not! Monty Python couldn't make up this outrageous outrageous story. A judge in Ohio appointed a public defender to handle an assault case and insisted that the public defender go to trial on two-day's notice. When the lawyer refused to proceed because he did not have time to prepare, the held him in contempt and ordered him to jail. The judge was unapologetic, saying he would not let the public defender "impede justice in Portage County." Sounds like a lesson in irony and judicial intemperance.

The defendant may well be at fault for not securing counsel sooner. Or perhaps the State was remiss in not appointing counsel at a more seasonable juncture (ie, more than 2 days in advance). And maybe the case was so simple that it really did not require but a few hours time to prep. But it's pretty obvious that the public defender should not be jailed for being unable and unwilling to proceed on case for which he says he was afforded reasonable time to prepare. Too bad judges enjoy immunity for their actions, because this is truly beyond the pale.

I'm sorry to say that just these sorts of threats (and sometimes actions) take place in New Orleans and many other quarters. Yet another example of a judge that thinks public defense is just an impediment, trials a quaint formality, and prosecution god's work. Nobody expects the Spanish Inquisition.

Monday, August 13, 2007

More of the same.

Breaking News: Oliver Thomas -- New Orleans City Councilman -- has pleaded guilty to bribery. Just another corrupt politician using his office, and abusing the public trust, to make a buck for himself. This, in my view, is a truly insidious crime that tears the very fabric of society. If you can't trust the persons elected to represent the public's interests, then why bother having elected government in the first place? I guess Mr. Thomas takes Twain a little too literally: Honesty is the best policy, when there is money in it.

And I wonder if this is more of the "double-edged" bad news that Mayor Nagin seems to think will, at least, keep the "New Orleans brand" in the spotlight.

Friday, August 10, 2007

Bad News is Good News?

Or so Mayor Nagin would like to have it. In a poor attempt at political sophistry, Mr. Nagin tries to spin murder into a good thing for the City. He says all the press coverage about the City's over-active murder industry is a "two-edged sword." He worries only "somewhat" that the murder rate is hurting the economy because, he reasons, all the negative press at least gets the "New Orleans brand out there." If the "brand" is "murder capital," then I suspect tourists and consumers would rather not buy. (Check out this "ad.") Can we get a refund on votes for Mayor?

Friday, August 03, 2007

Congressional Office is a Member's Castle?

Representative Bill Jefferson, who faces criminal prosecution for bribery, surely will claim victory today. That's what politicians do. They spin even bad news into good; they make the mundane sound momentous. A federal appeals court ruled today that the search of the Congressman's office was illegal, at least in part. But while the court's ruling validates a technical, arcane feature of Constitutional law, it remains to be seen whether it offers any substantial vindication for Mr. Jefferson. I think not.
By now everyone knows the basic facts. Mr. Jefferson is suspected of taking bribes. In short, he supposedly agreed for a fee to use his power as a Congressman to promote some business interests in Nigeria in which he had an interest. In his home freezer, he just so happened to have stored $90,000 in marked bills, the same money allegedly paid by an undercover informant. The government wanted to search his Congressional office for more evidence. Mr. Jefferson cried foul, claiming that the the search violated his Constitutional rights. Here's where it gets confusing for the non-lawyers. He says the search violates the Separation of Powers because the Executive (ie, the Department of Justice) cannot interfere with the business of the Legislature (ie, a Congressman). He maintains that his office files are "privileged" or immune from disclosure under the "Speech or Debate" Clause in the Constitution. Arguing that the search was illegal, he has asked the courts to give him back all his files and prevent the government from using them in its prosecution.

The court agreed in part, but it probably won't do much to save Mr. Jefferson's hide. The court basically said that the government has to give back all legislative materials (no argument there) and that in case of disagreement the court will decide what is "privileged" from disclosure and what is not. Thus, the court has required extra special procedures to protect Mr. Jefferson's bona fide legislative activities, but he's still subject to prosecution, and legitimate non-legislative materials can be seized and used against him in a criminal prosecution. (The court admittedly left a slight crack in the door for Mr. Jefferson to argue later that even non-legislative materials can't be used in his prosecution. It is doubtful that Mr. Jefferson will prevail on that argument, however.)

So what does this mean? There is no dispute that a Congressman can be prosecuted for a crime. Nor is there any dispute that the government is entitled to use a search warrant to collect non-legislative materials from his office sanctuary if they may be evidence of a crime. Mr. Jefferson's technical gripe is that the FBI agents who executed the search warrant at his office may have viewed some legislative papers that are absolutely immune from disclosure under the Speech or Debate Clause. This is really the fulcrum of the problem. Mr. Jefferson surely will say everything in his office is part of his legislative activity (and therefore privileged) while the government will say that anything to do with the business interests in Nigeria is evidence of a crime (bribery). Buried in the court's opinion is the key observation that his privilege from disclosure "does not prohibit inquiry into illegal conduct simply because it has some nexus to legislative functions." Thus, Mr. Jefferson can't use the very legislative misconduct at issue in the bribery case as a shield against a search warrant.

Thus, a Congressman's office may be his legislative castle, but FBI agents wielding search warrants will be able to get in with something less than a Trojan horse.