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Lynn DeJac became the first woman to be exonerated of murdering someone among the 209 people cleared through DNA evidenced since 1989.  In 1994, she was found guilty of strangling her 13-year-old daughter during a night of bar hopping and binge drinking.  Yesterday, November 28, she walked out of an Erie County courthouse in northern New York a free woman, released on personal recognizance.  But she still faces retrial on a charge of second degree manslaughter.  The new charge hinges on whether the State can prove that Ms. DeJac acted with depraved indifference as opposed to having committed a crime knowingly and intentionally.  Frank Clark, the Erie County D.A., told the media that “the question of guilt or innocence still has not been determined.  That’s why we have every trial.”  Confusing?  I’ll try to explain.

At her trial, prosecutors argued that Ms. DeJac strangled her daughter during an all-night drinking binge that took her, along with her boyfriend, Dennis Donahue, to a wedding, back home and then out to several local taverns.  Donahue, testifying on behalf of the State after having been granted immunity, admitted that he confronted Ms. DeJac and another man that night and later having placed his knife at the throat of another man.  Although there was not an iota of physical evidence to connect Ms. DeJac to the murder scene, they relied on a convicted thief who testified that she had admitted to him in a bar that she killed her daughter.  The circumstantial evidence case rested on her behavior on the night of her daughter’s death - she made the 911 call but did not answer the door when the police responded 15 minutes later.  Several witnesses from the working class neighborhood where Ms. DeJac was raised described her as a troubled woman, an alcoholic and “erratic mother.”  They accused her of leaving her daughter and an 8-year-old son alone while she stayed out all night, partying and drinking.  Her deceased daughter had previously been sexually abused by her stepfather and suspicion was raised by witnesses that Ms. DeJac bore criminal culpability for lax supervision if not downright participation.  Said Andrew C. LoTempio, DeJac’s lawyer, “I think about 80 percent of the jury’s verdict was based on innuendo created by neighbors who didn’t like her.”  And now here is where the real tragedy is found.

Based on the urging of Mr. LoTempio, law enforcement re-examined the evidence found at the crime scene.  DNA tests, not available at the time of trial, indicated that a man’s DNA was present in the skin cells found in a smear of blood on the wall and in the vaginal cavity of Crystallynn, the decedent.  Further tests showed that the DNA belonged to none other than Dennis Donahue, the State’s star witness.  But he can never be tried for the murder because of the immunity deal he cut in exchange for his testimony before the Grand Jury and at trial.  As a result, D.A. Clark plans to try Ms. Dejac on the theory that she was an accomplice who acted with depraved indifference to the safety and well-being of her daughter.  But even is she is convicted, she won’t spend another day in prison since she has already served enough time in confinement to satisfy the maximum sentence for manslaughter under New York law.

Ms. DeJac, like so many other exonerated defendants who find themselves thrust into an alien world for which they are ill-equipped to deal, the prospects are admittedly bleak.  “She’s got no money, she’s got no clothes, she’s never seen the house where her husband and children live [Ms. Dejac married Chuck Peters while in prison],” said Mr. LoTempio.  “Think about being taken away from the world for 13 years and then being dropped back  in.  Hopefully, she won’t slip back into that neighborhood and the things that caused the problems in the first place.”

Jason Whitlock, a sports columnist with the Kansas City Star and Fox Sports, says that the Black KKK killed Sean Taylor, the high profile safety with the Washington Redskins, who was gunned down in his affluent Florida home on Monday.  Whitlock believes that Taylor’s death is living proof that “if you’re a black man living in America . . . your life is in constant jeopardy of violent death” and that “black men are targets of black men . . .  Period.”  Read the controversial piece here.

No judge wants to get popped on appeal.  Oh, they may say that it doesn’t both them but if truth be told, all judges  want their judgments upheld on appeal and who can blame them?  That’s why I preach and preach to any defense lawyer who gets that rare, favorable ruling that he or she must do everything they can to protect that finding because, in the process, they’re defending the judge who gave them the judgment.  That goes a long way down the road.  So kudos to David Isern of Amarillo for carrying the torch in State of Texas v. Moses Galvan Rico, Jr., slip opinion no. 07-07-0092-CR.  (more…)

Another lawyer in trouble, this one from Mississippi . . .

Richard Scruggs, a high-profile Mississippi lawyer who has made a fortune so far fighting insurance companies over payments arising from the destruction wrought by Hurricane Katrina along the Louisiana and Mississippi coasts, has been indicted by a federal grand jury for offering a bribe of $50,000 to a Mississippi state judge who was presiding over a case in which Scruggs had a dispute with another lawyer over the division of $26.5 million in fees.  The indictment, filed in Oxford, Scrugg’s hometown, alleges that he used an associate to convey the bribe money over to Judge Henry L. Lackey in chambers.  Also indicted were Scruggs’ son, Zachary, Sidney Backstrom (another partner), Timothy Balducci (a partner in the firm of Patterson & Balducci and the lawyer who is accused of actually delivering the bribe money) and Steven Patterson, partner with Balducci.  They are all charged with conspiracy to commit bribery of a public official.

The indictment quotes from a conversation tape-recorded inside Judge Lackey’s chambers and a phone conversation in which Balducci tells a member of his firm that “all is done, all is handled and all went well.”  The indictment also makes clear that Judge Lackey immediately contacted the FBI when the first attempt to bribe was made and cooperated fully with authorities.  According the indictment, Balducci delivered $20,000 in cash to the judge and went immediately to the Scruggs law office to discuss the transaction with Backstrom. 

Scruggs has recently negotiated more than $100 million in settlements with State Farm and other insurers so far this year.  Might I add at this point that he is the brother-in-law of Senator Trent Lott and a close friend of Mike Moore, former attorney general of Mississippi.  Scruggs gained national attention in the late 1990s for helping to bring off a $248 million settlement from the tobacco industry. 

Scruggs had recruited several lawyers to help him resolve hundreds of potential lawsuits against insurers following Hurricane Katrina.  In the biggest settlement with State Farm, Scruggs stated publicly that he expected to make over $46 million in fees.  However, one lawyer, John Griffin Jones, was not happy with the division of the fee pie and sued Scruggs and others over the division of $26.5 in fees.  According to the indictment, Scruggs was behind the effort to bribe Judge Lackey, presiding over the Jones suit, in order to get a favorable ruling on the case.

Scruggs represented both Lott and Representative Gene Taylor in disputes with State Farm over claims arising from damage caused by Hurricane Katrina.  He resolved both claims successfully for both Lott and Taylor.  Lott, who just announced his hurried retirement from the Senate two days ago, and Taylor were instrumental in pushing through legislation to investigate the claims handling procedures employed by State Farm and other insurers as a result of the crush of claims brought on by Katrina.  That investigation is under way.

A Texas lawyer . . .

An Austin criminal defense lawyer, already facing indictments for possession of methamphetamine and theft, has now been charged with three counts of tampering with a governmental record for forging the names of three Travis County judges on personal recognizance bonds.  Bruce Phillip Garrison, 37, has not yet been located by authorities.  In a classic understatement, the Austin American-Statesman newspaper reported that Garrison did not return phone calls made to his law firm as of Tuesday. 

Garrison was arrested in August for possession of methamphetamine and for having taken $2,500 from a client who asked Garrison to get her son out of the Williamson County jail.  This was followed by allegations made this week showing that Garrison took the boyfriend of a client to his office in September of 2006 where he (Garrison) forged a judge’s signature on the face of a personal bond.  Garrison was reported to have told the witness: “I have one more ace up my sleeve.  I do this all the time.” 

One of the judges whose signature was forged, District Judge Jon Wisser, said he was dismayed at Garrison’s conduct by not surprised.  “Mr. Garrison has a drug problem . . . and people with drug problems steal from their families and their desperation will lead them to do anything.  The forgery charges are just one problem in a continuing saga.”  That last statement makes one wonder just how much misconduct lies obscured underneath troubled waters.  Time will tell but not before the Office of the Chief Disciplinary Counsel gets involved.

. . . and one from California

High-profile lawyer Stephen Yagman, 63, convicted for income tax evasion, bankruptcy fraud and money laundering, was sentenced in a Los Angeles federal district court to 36 months in prison.  Allegations behind the prosecution included more than $100,000 in unpaid taxes, credit card sprees, Aspen skiing vacations and shopping on Park Avenue in the Big Apple.  And all of this by a lawyer who held himself out as a committed civil rights lawyer and one who took on the Establishment in a series of controversial cases against the L.A.P.D., the federal government and even President Bush.

During the sentencing hearing, Yagman told U.S. District Judge Stephen Wilson that he was a “target” of the U.S. Justice Department because of his campaigns against the govenment.  Permitted to address the court over a span of two days, he argued that his “problems” stemmed from careless intention.  “I am kind of a savant, focused on civil rights.  I got sloppy.”  In other words, what he really says is I did nothing wrong, regardless of the facts, because I’m not very good at bookkeeping and once I get out, it’ll probably happen again. 

Judge Wilson commented at sentencing that he had known Yagman for over twenty years and personally found him to a brave lawyer for having taken on so many imposing issues but nonetheless, found that the evidence clearly justified the verdict of the jury and that he had committed the crimes knowingly.  He was ordered to report to the Bureau of Prisons by January 15, 2008.  Yagman also has to pay the cost of the prosecution.

To his credit, Yagman had filed numerous suits against the LAPD, accusing it of framing suspects and making numerous phony arrests.  He even persuaded one judge to order the department to open its internal documents under color of federal law.  He was also involved in the litigation against the federal government when white separatist Randy Weaver sued federal agents for the shooting deaths of his wife and son at Ruby Ridge, Idaho.  He sued Bush and other administration officials, claiming that they violated the constitutional rights of various detainees at Guantanamo Bay, Cuba. 

Yagman filed for bankruptcy in 1999 but prosecutors pointed out at trial that he failed to disclose that he lived in a 2,800-square-foot home near the Pacific Ocean.  When he attempted to deny this fact, documentation showed that he made mortgage and property tax payments on the home and claimed the homeowner’s mortgage-interest deduction on his tax returns.  The government also argued that Yagman owed the IRS more than $158,000 in back taxes, failed to pay over $30,000 in payroll taxes owed by his law firm and hid more than $600,000 that he received from his wealthy relatives.  To add insult to injury, trial evidence showed that he hid $70,000 in assets to avoid paying out a civil judgment rendered against him in 1996.

Another tale of a lawyer’s greed being his ultimate undoing.  But the one thing that really stands out is Judge Wilson’s decision to let this guy speak for two days at sentencing.  What’s that all about?  Even Clarence Darrow didn’t get so long in the Big Bill Haywood trial.  Can you imagine trying that out in the Federal District Court, Northern District of Texas, Amarillo Division? 

Julianna Redd of Provo, Utah thought that she was going on a little shopping spree with her parents on the eve of her wedding to Perry Myers.  She was told by Julia and Lemuel Redd that they wanted to buy her some “religious garments” for the 2006 wedding ceremony at a Mormon Temple.  Instead, Julia and Lemuel took a diversion from the regular route, driving Julianna some 200 miles into northwest Colorado where they all stayed in a cozy motel.  What the parents said was an attempt to persuade their daughter that she had made a terrible choice in a future husband, prosecuting authorities said was kidnapping.  So began a year long saga that just played out in a Provo courtroom.

The Redds picked up their daughter in August of 2006 and during the drive to Colorado, according to Julianna’s sworn testimony, berated her and accused her of breaking the Fourth Commandment which requires children to honor parents.  The Redds called the fiance “evil and wicked.”  But the Redds did not prevail and Julianna married Perry three days later than scheduled and without the intrepid Redds in attendance.

In a hearing held this morning, the Redds pled to a reduced charge of custodial interference, a misdemeanor, sparing them from having to spend time in prison.  The judge placed both parents on three years probation and ordered them to pay, immediately, $2,000, the cost of the rehearsal dinner that the Redds screwed up by their conduct.  In an interview given the night before the plea hearing, Julia and Lemuel stated that they had “concerns” about the fiance and that their daughter “was only 20 years old.”  The final piece of the plea bargain commands that the Redds have absolutely no contact with either Julianna or Perry for one year from the date of the plea hearing. 

Oh, and by the way, the young married couple already has a family, Julianna having bore a daughter last spring.  And the fiance was “evil and wicked” but not a decent or kind word out of the Redds’ mouths about their innocent granddaughter. 

It’s a sight that we all have become inured to - the high-speed vehicular chase between the cops and the creeps.  Entire television series are devoted to them (”Wildest Police Videos”); they clog the internet; they happen everywhere.  In sum, not only have we become numbed by their senseless violence yet drawn to them out of brazen, crude curiosity, we have accepted them as part of the urban landscape as a permissible function of law enforcement.  But these chases come at a terrible cost in terms of the innocent lives that have been snuffed out whenever the suspect or the cops slam into other vehicles, not to mention the unjustified risk that each and every chase presents to the civilian population as a whole whenever the police elect to give chase.  Is is worth it to nab a car thief, a burglary suspect or someone simply fleeing because they may have outstanding traffic warrants? 

As recently as early this morning, the thorny issue raised its head once again, this time in Palm Beach County, Florida.  There, around 1:45 a.m., two of that county’s sheriff’s deputies were killed as they tried to stop a stolen vehicle on a rural road when they were struck by a fellow deputy’s patrol car.  The deputies had put out puncture spikes on a road in order to slow down or stop a car being driven by two individuals suspected of having stolen the car.  The car hit the spikes and came to a stop at the scene.  As the two deputies ran out into the roadway to remove the spikes, they both were struck and killed by an oncoming K-9 patrol vehicle that was pursuing the stolen car.  The men suspected of stealing the car fled into a nearby sugarcane field land where they eluded a search team comprised of 75 officers and several canine units.  The search was called off after five hours.

Sheriff Ric Bradshaw identified the two dead deputies as 13-year veteran Donta Manuel, 33 and Jonathan Wallace, 23, who had been with the force for a year and a half.  “They probably did not estimate the K-9 was coming at the speed that it was.  You’re talking about a road that is absolutely pitch black.  Everybody involved in this was doing their job.  They were doing it the right way but this is a dangerous job,” Bradshaw said at a hastily arranged news conference.  Saying that the everyone was doing it right or that it was simply their job doesn’t make it right.  Two men needlessly killed because of a feckless policy whose time has come and gone.  Stop these cop chases now, for good.

Some of you may recall my prior post (”A hard, hard call,” October 2, 2007) on Oscar Wyatt and his trial in a Manhatten federal court on allegations that he approved an illegal $200,000 payment to an Iraqi bank account in return for acquisition of oil contracts connected to the oil-for-food program administered by the United Nations.  In he midst of the trial, the Houston oilman, 83, changed his plea from not guilty to guilty, agreeing to plead to a single count of conspiring to violate the rules of the U.N. program.  The plea agreement called for a guideline range of 18-24 months.  He also agreed to forfeit $11 million as a condition of his plea.

On Tuesday, U.S. District Judge Denny Chin sentenced Wyatt to twelve months in prison and cited Wyatt’s age, military service during World War II and the many letters written to the Court on his behalf, all attesting to his character, as justification for a downward departure.  However, Judge Chin noted that there was little doubt that Wyatt had broken the law.  During sentencing, Wyatt openly sobbed as he addressed the judge, apologizing to his family and friends, attesting that he “would never do anything to hurt my country.”  The prosecution had vehemently opposed any downward departure, criticizing Wyatt’s “breathtakingly immoral” behavior.

Am I obsessed with death?  No, just observant of those who have contributed to the betterment of the human race. 

Dr. J. Robert Cade, Inventor of Gatorade, dead at 80 

In the early 60s, J. Robert Cade was an assistant professor in internal medicine at the Univeristy of Florida.  During that time, he was approached by an assistant football coach, Dwayne Douglas, who asked him “Doctor, why don’t football players piss after a game?”  In a 2005 interview, Dr. Cade reminisced and commented “That question changed our lives.”  He began to research the fact that football players could lose as much as 18 pounds - 90 to 95 percent of that in water volume - during the three hours it takes to play the game.  Football players also sweated away, in addition to the water, sodium, chloride, not to mention plasma and blood volume to boot.  Based on this rudimentary research, Dr. Cade and his student researchers, using just $43 in supplies, brewed a concoction for players to drink while playing football in the swamp-like environment of Florida.  The first batch wasn’t exactly a hit.  Dr. Cade swilled down the initial sample.  “It sort of tasted like toilet bowl cleaner.  I guzzled it and almost vomited.”  They added some sugar and lemon juice to improve the taste.  After further refinement, Dr. Cade tried it out on the freshmen squad because they didn’t want to hurt the varsity.  After it passed the smell test, they distributed it to the upperclassmen.  In the process, they enjoyed a winning season and became known as a ’second-half team” by simply outlasting opponents.  So was born Gatorade in 1965.

Stokely-Van Camp, the food conglomerate, obtained the licensing rights for Gatorade soon after its introduction and began marketing it as the “beverage of champions.”  The company hated the name “Gatorade,” believing the name to be too provincial but stuck with it after market research showed that consumers were attracted to the name.  PepsiCo. later obtained the brand.  It originally came out in four flavors.  There are now more than 30 available in the U.S. and 50 internationally.  It is sold in 80 countries.  It has produced more than $150 million in  royalties for the University of Florida to date.  By 2006, Gatorade held 81% of the $7.5 billion  sport drink market.  And Dr. Cade never for one moment thought that the drink would ever appeal to the market as a whole.  “The financial success of this stuff really surprised us.”  As a historical note, the recipe of Gatorade has not changed at all since its creation except that an artificial sweetener has replaced sugar in its makeup. 

James Robert Cade was born in San Antonio, Texas on September 26, 1927.  He volunteered for service in the Navy and later graduated from the University of Texas and UT Southwestern Medical School in Dallas.  He was appointed assistant professor at UF in 1961 and worked in that capacity until he was 76, retiring in 2004.  He died on Tuesday, November 27 of kidney failure.  Dr. Cade is survived by his wife, Mary, and six children. 

Bill Hartack, 5-Time Kentucky Derby winner, Hall of Fame jockey, dead at 74

Bill Hartack, who won the Kentucky Derby five times, a feat equaled only by Eddie Arcaro, died while on a hunting trip in Freer, Texas on Monday, November 26.  Hartack was considered to be one of the fiercest riders of his time, booting home 4,272 wins from 21,535 mounts which translates into a 20 percent win rate.  And that is an incredible figure.  His most famous win in the Derby was aboard Iron Liege in the 1957 Run for the Roses.  As Gallant Man, ridden by Willie Shoemaker, bore down on Iron Liege in deep stretch and appeared to have his measure for the win, passing Iron Liege at the sixteenth pole, Shoemaker inexplicably stood up in the irons, misjudging the finish.  As a result, Gallant Man lost his action and couldn’t catch up with Iron Liege who won by a close margin.  Hartack also had a famous win on Northern Dancer in the ‘64 Derby.

Born in Ebensburg, Pennsylvania, William John Hartack, Jr. was raised by his father, a coal miner on a farm.  He took a job as an exercise rider and stable boy at the age of 17 at the veneable Charles Town Race Course in West Virginia.  He began racing in 1952 (hack’s  birthyear) and won his first race at Waterford Park, now known as Moutaineer Race Course.  He, along with Eddie Arcaro and Shoemaker, ruled the racing world in the 1950s.  He was  the top race rider in earnings in 1956 and 1957 and the leader in victories in the years 1955-1957 and 1960.  He became the second jockey of all time in his day to win over 400 races in one year, accomplishing that feat by bringing home 417 winners in 1955.  He continued to ride into the 70s with limited success due to age and physical infirmities, concluding his stellar career in Hong Kong from 1978-1980.  He remained in racing as a steward, working the past few years at Louisiana Downs in Bossier City.  Hartack was inducted into the Thoroughbred Racing Hall of Fame at the age of 26, the youngest rider to be so honored. 

Hartack died of a heart attack while on a hunting trip in South Texas at a camp on property owned by thoroughbred owner Greg Goodman.  His body, found in a cabin on the hunting premises, was discovered when security personnel went to check on Hartack when  he had not been heard from since his arrival at the hunting lodge on Sunday.

So said Chief Justice Warren E. Burger on the MacNeil/Lehrer NewsHour several years ago.  In 1992, he declared in a speech that “the Second Amendment doesn’t guarantee the right to have firearms at all.”  Admittedly, these public statements regarding the most mysterious amendment to the U.S. Constitution by a conservative judge is something that we wouldn’t dream of witnessing today in our politically polaraized environment.  But they are worth pondering as the Supreme Court and lawyers for both sides gear up to resolve the singular question before it today, courtesy of the District of Columbia Circuit Court of Appeals having struck down several handgun restrictions in the District of Columbia, and that is, simply: Did the Second Amendment create an individual right to own guns? 

Rest assured that the Court will not resolve whether the Second Amendment is incorporated into the Bill or Rights (it ruled in 1886 at that time that it was not) nor will it wade into the thicket of the constitutionality of the multitude of gun restrictions already on the book in divers cities and states.  But it is worth noting that the Court approaches this issue with an absolute paucity of precedent to refer back to.  In well over two centuries since the founding, the Court has never held that the Second Amendment protects an individual right to have guns.  So if the Court is ready to recognize this right, it will truly be a groundbreaking decision.  Rather than my own personal views on the whole affair (they would be boring to most and not relevant to the discussion), read Cass Sustein’s take on the controversy and come to some conclusions on your own.  Here, his book review of Out of Range (Oxford University Press) by Mark V. Tushnet is the vehicle for his own disquisition on the subject.  Enjoy.