Super Tuesday

In case you're as jaded by politics as I am, check out the returns on the original Super Tuesday. That's Fat Tuesday in New Orleans. Happy Mardi Gras!

Selective Service: Jury Duty

Jury duty is a chore, but I'm not sure being swept up off the streets in a citizen dragnet is what most complainers had in mind. To be sure, jury duty is a civic duty, a small price to pay for living in a civilized, democratic society. But I'd like to think that presupposes to advanced notice (like a summons in the mail) to allow prospective jurors to plan their days around the disruption to their normal daily routine. Some judges have a different idea, conscripting citizens off the streets for jury duty when the jury rolls just can't keep pace with courtroom demand for fresh bodies.

I believe everyone has an obligation to serve, but I suspect snatching people off the streets to serve on a jury is going to debase juries, stocking them full of disgruntled people who are going to be looking for a speedy way to return to their posts rather than spend their time as conscientious jurors listening attentively to a trial. Well, I suppose that much won't change.

And the winner is...

It looks like 2007 was another banner year for New Orleans, at least as far as crime statistics. Once again, the Big Easy looks to take the murder capital crown. It is unfortunate that the violence overshadows many positives for a city on the rebound. Hopefully 2008 will be a safer year as the City's economy continues to prosper.

Judging Poor Judgment

Former Orleans Parish civil judge C. Hunter King has managed to have his record expunged as part of a deal under which he pleaded guilty to extortion and conspiring to commit public payroll fraud. His offense was requiring court employees to sell batches of $250 fundraising tickets or face termination. That's not only illegal but pathetic. Does he really deserve to have his record wiped clean? In my view, probably not. Mr. King's offense reflected incredibly poor judgment for a sitting judge and lawyer. That is not the sort of judgment that is the hallmark of judging. Nor does it seem fair given that so many people with far more petty offenses are plagued with stained criminal records that prevent them from ever enjoying gainful employment, while Mr. King looks like he's on the road to practicing law again. And Mr. King's fraud is particularly galling because he used public resources -- public servants paid by the state -- for his own personal gain. He not only has poor judgment, but he abused the public trust as part of a scheme to perpetuate his own political existence. He hardly deserves a free pass for that.

Judge Julian Parker, the criminal court judge who sentenced Mr. King, thinks the expungement fairly cleanses the supposed racism under which Mr. King suffered. At sentencing, Judge Parker lamented from the bench that Mr. King had been "set up." Really? Mr. King's decision to break the law by conscripting public employees to do his bidding was part of a racist entrapment plot? It sounds to me that Mr. King was "set up" in the same way that former DC Mayor Marion Barry was "set up" by that "*itch" who smoked crack with the Mayor in a hotel room. Mr. Barry and Judge Parker seem to be saying, "Never mind the underlying crimes; blame the person who had the courage (audacity?) to shine the light on the shady conduct." That's a glorified street thug creed to blame the snitch, forget the crime. Just what New Orleans needs.

Taking a Chance on a Second Chance

Only the future can know if our judgments were the best decisions when made. Even then, certainty is constantly challenged by the unfolding of ever more future events. This is especially true when judges must mete out punishments, particularly in the cases of juvenile offenders. Can a particular juvenile offender be reformed? Will rehabilitation chart a new course for a troubled teen? Or is the child sentenced to a juvenile facility merely waiting to cross the threshold into adulthood (and beyond the reach of the juvenile detention system) to blossom in an adult offender? Is it naive hope to think we can mold damaged children into productive adults who will leave there troubled pasts behind? These questions do not have easy answers. But there is proof that we cannot and should not give up on ever troubled child, even those who commit the most heinous crimes as children. Read this and then consider these questions.

A new wrinkle on the federal bench

The tables have turned on Judge Thomas Porteous. The man charged with meting out justice himself faces serious judicial scrutiny -- again. A special investigative panel has referred Judge Porteous, a federal judge in New Orleans, for impeachment proceedings. This is not Judge Porteous' first time under the microscope. His conduct as a state judge (he was named to the federal bench in 1994) came under scrutiny in the 2005 "Wrinkled Robe " investigation that examined alleged official corruption. Although the investigation netted 11 guilty please and jail terms for two state judges, Judge Porteous dodged a bullet. Not this time. He has been dogged by lingering questions about alleged misstatements in financial disclosures, particularly for failing to disclose (allegedly) improper gifts received from attorneys practicing before his Court. He evidently dodged a criminal indictment, but that hasn't put an end to it. He recently returned to the bench after a leave of absence following the loss of his home to Hurricane Katrina, and then his wife. But it looks like his stay may be short lived. Hopefully there will be a dignified end to this saga.

Little Pink Houses

If it takes a village to raise a child, perhaps it take a movie star to build a village. While the City and State seem content to sit on their hands and point fingers, Brad Pitt is putting his money and star power where his mouth is. With his own $5 million, another $5 million from philanthropist Steve Bing, and other significant pledges, Mr. Pitt is starting a house building movement in the Lower Ninth Ward. This is not about fame or recognition -- Mr. Pitt already has plenty. It's about facing down challenges and taking action. There are many naysayers (just check the comments attached to the article), but the will to try and fail should triumph over the inertia of doing nothing.

Fall from Grace

Disgraced former Councilman Oliver Thomas was sentenced yesterday for his admitted bribery. He got 37 months in prison, the maximum recommended sentence given the nature of the crime and his criminal history. This is a pathetic end to a promising career. As Judge Sarah Vance observed during sentencing, Mr. Thomas was well regarded and, by most accounts, slated to be future mayor of the City. Despite his professed love for the City and supposed desire to help people, Mr. Thomas could only help himself to a heaping serving of greed. When it came time to cooperate with the government -- which he promised to do as part of a plea deal -- he turned his back on the City and refused to talk. (There's speculation that Thomas chose silence out of loyalty to former Mayor Marc Morial, who has a prosecutor's target of his own on his back.) Just when we thought a disgraced politician was going to come clean, we got more of the same.

It's the accounting, stupid!

Sheriff Marlin Gusman admits he overcharged the City $2 million for prisoners in his custody that were actually federal inmates for which the federal government has already paid. He supposedly refunded the money (with interest?), but this is the second time in a month Gusman has had to fess up to double billing the City. Gusman blames it on the transition to a new computer system mandated by the State. I think incompetence is more apt. Gusman has a history of not having a clue who he has in custody. When it comes to generating revenue for the Sheriff fiefdom, he conveniently has more names on the rolls than he should. When it comes to knowing who's in custody and for how long, he feigns ignorance. Can the City get a refund on Gusman?

The Color of Money

Bill Jefferson, the disgraced Congressman who keeps bribe money in his freezer, has weighed in on DA Eddie Jordan's resignation. Jefferson concludes that Jordan merely sought to replace the non-legal staff with persons who were loyal to his election campaign. (No white Assistant DA's were replaced.) I think there is a kernel of truth in that. Jordan indeed did what every public official has ever done, which is to hire his own cronies. The problem in this case is that Mr. Jordan's inherited staff was overwhelmingly white (a historical vestige of Harry Connick's office), which he replaced with a staff that is overwhelmingly black.

In the cauldron of racial passions, it was a foregone conclusion that a jury was going to find discrimination. (In case, you're wondering, the federal jury pool tends to tilt significantly white despite the majority black population in Orleans Parish.) The real question, however, is whether this discrimination was lawful or not: Were persons hired and fired because of, in or in spite of, race? I don't know what Mr. Jordan's real motivation was, and the jury's verdict must be respected. But I think it is unfortunate that the controversy over questions of basic competence have been overshadowed by the indelible mark of racism. Mr. Jordan should be removed from office because his competence and leadership of the DA's office is in serious doubt, not because the DA's office can't afford to pay the monetary judgment. (After all, we don't disband the government every time a court orders our public officials to pay for their mistakes.) It shouldn't be about the money. Not so for Mr. Jefferson. It's all about the money in his case, and Mr. Jefferson should take a page out of Mr. Jordan's book and make a dignified exit.

Hari Kari, Nola Style

At least Eddie Jordan got something right as DA. He resigned. Maybe not quite as honorable as Japanese Hari Kari, but he's finished as Orleans Parish DA all the same. I don't know Mr. Jordan personally and have no informed opinion on his integrity, but I think it's fair to say he was not working out as the DA. The City needs to move forward, and I suspect (and hope) this is just another chapter in the saga of cleaning house in City government and replacing inept, inneficient, or corrupt officials with those who can better serve the City instead of serving as distraction. Call it falling on one's sword if you will, but I say good riddance.

Truth Is Stranger Than Fiction

Eddie Jordan, the embattled DA of Orleans Parish, can't seem to avoid controversy. This story is downright bizarre.

The Kingfish of Jefferson

Jefferson Parish will have to anoint its first new sheriff since 1980. The beloved and sometimes reviled Sheriff Harry Lee has passed away. Harry Lee was an institution, an indefatigable, one-man political machine. He was no stranger to controversy, often taking an overtly racist -- some say realist -- view of law enforcement. He was keenly practical, sometimes bordering on comical, like when he ordered his deputies to take target practice on nutria rats to control their spread. He was generous and charitable, even if that was driven in part by his admitted design to bolster political support. There is no denying he was less than perfect, but Harry Lee also was an undeniable leader. Political warts and all, he will be missed. Rest in peace, Harry Lee.

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.

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.

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?

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.

Louisiana's Chief Persecutor

Louisiana's Attorney General, Charles Foti, needs to move on. The grand jury found no probable cause to pursue murder charges against a doctor accused of killing her patients during Hurricane Katrina. Probable cause is a very low standard. To borrow from the old adage, the grand jury essentially told the prosecutors that their case fell at least a slice of bread short of a ham sandwich.

Undeterred, Mr. Foti wants to make his case to the public. He has released reports from supposed medical experts hired by his office that suggest that the deaths should be ruled homicides. This isn't about prosecution; it's persecution. Given that State prosecutors have exclusive control over what evidence is presented to the grand jury, one has to wonder (because grand jury proceedings are secret) whether (a) the grand jury saw these reports and remained unmoved or (b) the State, for whatever reasons, simply chose not to present the evidence to the jury. Either way, the grand jury has spoken, and that should put the matter to rest. To be sure, it is in theory possible for the State to simply present its case again to another grand jury. (The Constitution's Double Jeopardy prohibition does not apply to grand jury proceedings.) But that would be highly unusual. (In the federal system, line prosecutors must get approval from the Assistant Attorney General for the Criminal Division to take s second bite at the grand jury apple.)

Mr. Foti is essentially thumbing his nose at the very criminal justice system he's supposed to support. The grand jury serves as a bulwark against prosecutorial overreaching. It ensures that the State has at least probable cause (i.e., it's more likely than not that a crime has been committed) before pursuing a felony prosecution. Mr. Foti apparently finds the grand jury inconvenient, or at least irrelevant, when it conflicts with his personal assessment of the merits of a case. I only wish the State showed such fervor when it pursues other serious crimes -- like the countless street murders. Alas, Louisiana is mired in moral questions over doctors' treatment of terminally ill patients rather than focusing on the literally black and white issues of street thuggery.

I wonder how Mr. Foti has acquired such god-like certainty in this particular case. He is not a doctor. The Coroner found the evidence inconclusive. Loads of doctors have weighed in with varying opinions on the matter. At bottom, however, none of them were there (except, of course, the accused Dr. Pou) when the events in question transpired. With all due respect, I'm not even sure what Mr. Foti's qualifications are as a lawyer. As far as I can tell, he served as the Parish Sheriff for three decades and hardly ever practiced law before being elected AG. That's not to say he's unqualified. (You can judge his qualifications and accomplishments for yourself.) It's merely an observation that he doesn't seem to be in the best position to judge. Indeed, our justice system leaves that to the grand jury. Unless, of course, Mr. Foti brings back the Inquisition.

Mercy Killing

It has been a long battle, but a grand jury mercifully put an end to Attorney General Foti's misguided prosecution of Dr. Pou and two nurses from Memorial hospital who stood accused of killing several terminally ill patients during Hurricane Katrina. Score one for common sense. As for the Attorney General's Office witch hunters that still gripe that these were "homicides," the grand jury is the judge of that, so quit the grandstanding.

PD Update

Several people have asked me about the current state of affairs in New Orleans. This article provides a good summary of the public defender system. In short, it is on the right track, but it has a way to go. Having worked with some of the people named in the article, I can assure you it is in good hands.