Friday, April 18, 2008

Surgeon Could Lose License Over Sex With Patient

SAN DIEGO -- A prominent North County surgeon could be in trouble with the state medical board and learned he could lose his license.

Dr. Dennis Nigro is the subject of a hearing at the state building in which he is accused of having sex with a patient.

Nigro admitted to having a brief affair with a woman in 2003, but said she was no longer in his care during their relationship.

Nigro’s lawyer, medicare defense attorney Michael Khouri, said, “The woman does not believe Dr. Nigro was her doctor when the sex occurred.”

“There is documentation required to terminate relationship. It was not done in this case,” said Deputy Attorney General Mary Agnes Matyszewski.

An administrative law judge will issue a proposed decision that will be sent to the state medical board for final disposition.

Nigro’s license could be suspended if discipline is deemed necessary.

On the subject of the "worst five things a doctor can do," Steve Alexander provided the Investigation Team the list of the "worst five" and then commented on each individual item. There were no specific cases or doctors mentioned in the course of this interview.

Among the items provided by Mr. Alexander as one of the "worst five things a doctor can do," was a sexual relationship between a doctor and his or her patient. Clearly, in reporting the allegations against Dr. Dennis Nigro there was no intention or effort to tie Alexander’s separate interview specifically to the Dr. Dennis Nigro case.

Thursday, April 17, 2008

Juror: Judge and jury pressured me to convict

A juror who helped convict a black man of fatally shooting a white teenager said he felt pressured by other jurors and the judge to change his vote to guilty during a marathon deliberating session.

The Cicciaro family after John White was found guilty in the death of Daniel Cicciaro.
The jury convicted John White of second-degree manslaughter Saturday in the August 2006 shooting of 17-year-old Daniel Cicciaro Jr.

White, 54, remains free on bail and plans to appeal. He faces a prison term of five to 15 years.
The case drew national attention after defense attorneys argued that he feared a "lynch mob" had come to attack his family when a group of angry white teenagers gathered outside his home. The teens wanted to confront White's son.

Juror Francois Larche, who is white, said he and another juror changed their votes after enduring "a lot of psychological tactics" from fellow jurors during an unusual weekend session ordered by the judge over jurors' protests.

"It was a huge burden to bear," Larche, 46, told the New York Post in Monday's editions. He added, "I took a lot of heat."

Jury forewoman Maureen Steigerwald denied that the judge, a 12-hour deliberating session on Saturday -- the fourth day of deliberations -- or the holidays played a role in the jury's decision.
"The jury did a very careful, conscientious deliberate job," she told Newsday in Monday's editions.

Judge Barbara Kahn said the jury would have to return on Sunday if they didn't reach a decision. Larche told the Post the judge told them a mistrial would burden the families and the next jury.
"I thought about my family and the families of the other jurors," Larche said. "It was not worth it in the end."

Wednesday, April 16, 2008

Large Law Firms Treat Minority Attorneys Better

Attorneys at larger law firms are more satisfied with the treatment of lawyers from diverse backgrounds than lawyers at smaller firms, according to a newly released survey (.pdf) by the Cuban American Bar Association.

The survey asked attorneys about compensation, promotions, the complexity and importance of work assignments and client contact opportunities based on diversity.

Based on the results of the survey, CABA was to recognize Bilzin Sumberg Baena Price & Axelrod among firms with 50 of more attorneys and Kenny Nachwalter among firms with 20 to 49 attorneys at a reception this past Thursday night.

The goal of the survey was to identify which firms have greater success in making diversity a priority, said Coral Gables, Fla., attorney Nelson Bellido. He is chair of CABA's diversity committee and a partner with Concepcion, Sexton & Martinez.

"This is going to allow the firms to identify and prioritize certain diversity goals," he said. "What CABA is doing is [asking law firms], 'Are you walking the walk, or are you just talking?'"

Respondents overall were highly positive about diversity prospects and achievements at their firms. Attorneys who expressed no opinion generally outscored attorneys expressing negative sentiments about their firms.

Overall, attorneys at large firms appeared to be more satisfied than attorneys at smaller firms with the state of diversity at their firms.

A bigger percentage of attorneys from large firms, 17 percent, felt they were treated differently because of race, gender or sexual orientation than the 12 percent at medium-size firms.

When it came to the issue of pay equity, lawyers from larger firms seemed more satisfied with minority lawyer compensation than those at smaller firms. About 67 percent of large firm lawyers agreed that minority lawyers were as likely to receive raises as nonminority lawyers compared with 63 percent at smaller firms.

The question generating some of the highest negatives in the survey asked if minority and nonminority attorneys have an equal chance at leadership roles. About 11 percent of respondents at large firms and 10 percent at smaller firms did not see a level playing field.

Tuesday, April 15, 2008

Court Won't Rehear Case Over Man's Military Lies

A divided 9th Circuit refused to rehear its dismissal of a judge's order for a Montana man to stand in front of a courthouse for 50 hours wearing a sandwich board that said, "I am a liar. I am not a Marine," after he lied to his probation officer about having served in the military.

Dissenting Judge Bea called defendant William "Cody" Horvath a "slippery customer, in more ways than one." After Horvath escaped from prison and was captured with a gun in his possession, he concocted a tale about serving in the U.S. Marine Corps and receiving a Purple Heart for a wound in Panama. His probation officer presented the whopper to the judge as a mitigating factor in Horvath's sentencing.

When the truth came out that Horvath "never served a minute in the Marines," he was indicted for lying to a judicial officer. He moved to dismiss the indictment, but later entered a conditional guilty plea, reserving the right to appeal.

U.S. District Judge Donald Molloy, a veteran, rejected Horvath's motion and sentenced him to four months of electronic monitoring and four years probation. He also ordered Horvath to wear the sandwich board. The back was to say, "I have never served my country. I have dishonored veterans of all wars."

Horvath appealed on the ground that he had committed no crime, and the three-judge panel agreed. It found that statements made to a probation officer are exempt from prosecution, because the law requires the officer to present the defendant's statements to a judge.

The dissenting opinion argued that the exemption applies only to statements that a party or attorney makes directly "to a judge or magistrate."

Prosecutors unsuccessfully petitioned for a rehearing before a larger panel of the 9th Circuit.

Judges Pregerson and Graber voted to deny the petition for rehearing, while Judge Rymer voted to grant it. Judges Wardlaw, Gould and Paez concurred with the majority decision, and Judges Bea, Kozinski, O'Scannlain, Kleinfeld, Tallman, Bybee and Callahan dissented.

Monday, April 14, 2008

Top Law Schools Tighten Hold on NLJ 250 Firms

A bigger percentage of students graduating from top law schools in 2007 took jobs at NLJ 250 law firms than those graduating in 2006.

Columbia Law School landed in the No. 1 spot again as the school thatsent the greatest portion of graduates to NLJ 250 law firms, withnearly 75 percent of its students in 2007 taking jobs among thenation's largest law firms. The school ranked No. 1 last year, when69.6 percent of its graduates went to NLJ 250 law firms. Boston CollegeLaw School rounded at the list of the top 20 go-to law schools, with36.8 percent of its 261 juris doctor graduates in 2007 heading forfull-time jobs at NLJ 250 law firms.

All together, the top 20 law schools that NLJ 250 law firms relied onmost to fill their first-year associate ranks sent 54.9 percent oftheir graduates to those firms, compared with 51.6 percent in 2006.

This year's list of go-to schools was compiled from recruiting information that law firms provided on the 2007 NLJ 250, The National Law Journal's annual survey of the nation's largest law firms.

In 2007, the top 20 schools sent 3,511 of their graduates to work asfirst-year associates at NLJ 250 law firms. Total graduates among thoseschools in 2007 equaled 6,395. In 2006, the 20 go-to law schools sent3,561 to NLJ 250 law firms out of 6,902 graduates.

Making a big jump in its percentage of graduates accepting positions atNLJ 250 firms was Northwestern University School of Law. It took theNo. 2 spot, compared with No. 11 the year before. Some 73.5 percent ofits 2007 graduates went to NLJ 250 firms, or 172 graduates out of atotal of 234. The year before, 143 graduates out of 265 went to NLJ 250firms, which equaled 54 percent.

Thursday, April 10, 2008

Scalia to Go Before the News Cameras

Supreme Court Justice Antonin Scalia, who makes no secret of his disdain for the news media, has agreed to appear in a segment of CBS News' "60 Minutes" on April 27, the eve of the publication date for a new book he has co-authored.

A knowledgeable source who requested anonymity confirmed Monday that the top-rated newsmagazine asked Scalia for the interview and he accepted, in spite of his oft-stated view that judges should stand apart from the modern media culture.

Correspondent Lesley Stahl has already conducted several taped interviews with Scalia that range well beyond his book -- called "Making Your Case: The Art of Persuading Judges" -- and delve into his career and upbringing.

In the life of the Court and the career of Justice Scalia, this is a remarkable, Nixon-goes-to-China moment. No justice has excoriated the news media like Scalia has, and it would have surprised no one if he had completed his tenure on the high court without ever consenting to a broadcast interview.

Earlier in his tenure, when he gave a speech at a law school and an unsuspecting local television news crew showed up, Scalia would impetuously refuse to go on stage until the cameras left. In what has become known as the "Hattiesburg Incident" of 2004, deputy U.S. marshals ordered reporters to erase audiotape recordings of a speech Scalia was giving in Mississippi. The marshals believed they were enforcing Scalia's anti-press policies. Scalia apologized, and said his policies had been misunderstood.

But when the reporters lodged protests with the marshal's service, an internal investigation ensued. In a deposition taken during the investigation and later released under the Freedom of Information Act, one of the marshals quoted Scalia as saying, earlier in the day, "I hate the media, don't like the media, I don't know why they're here. I'm not talking to them." That same day,according to another deposition, when the question of talking to local media came up, a reporter overheard Scalia saying, "I don't do interviews. I don't talk to the press.

"The "60 Minutes" appearance is the centerpiece of a limited round of publicity Scalia will be doing to promote sales of the book he wrote with Bryan Garner. Garner is the legal writing expert whose company LawProse Inc. runs seminars for law firms around the country. The two decided to write the book after Garner interviewed Scalia and seven other justices about legal writing and advocacy last year. Those tapes are available on Garner's Web site.

C-SPAN announced Monday that Scalia would appear in a live exchange with high school students today on C-SPAN3.Scalia is not the first justice to appear on television to launch a book, by any means; just last year Justice Clarence Thomas' memoir, "My Grandfather's Son," was published the day after a "60 Minutes" appearance. Current and former Justices Sandra Day O'Connor, Stephen Breyer and William Rehnquist have also done televised interviews to publicize their works.

But for Scalia to join the trend after decades of disdaining this kind of attention is remarkable. He may have felt encouraged in a general sense by the lighter and more open leadership of the Court by Chief Justice John Roberts Jr., which contrasts sharply with the cloistered style of Rehnquist, Roberts' predecessor. The 72-year-old Scalia may also have felt that at this stage in his life, the time has come to unburden himself and tell his story on a stage broader than the Supreme Court.

Tuesday, April 8, 2008

Second Circuit Deals a Severe Blow

Last week, the U.S. Court of Appeals for the Second Circuit issued its opinion in McLaughlin v. American Tobacco Co. The decision constituted a major win for Big Tobacco - and a major loss for the plaintiffs.

The theory behind the case - which was a class action -- was simple. The plaintiff class was composed of persons (and the estates of persons) who had smoked lights cigarettes and allegedly suffered harm. The plaintiff class alleged that the tobacco industry has known for years that "light" cigarettes are not safer than regular cigarettes. Therefore, the class argued, the advertisement campaigns for light cigarettes constituted a form of consumer fraud, in which the seller promised one thing (a safer cigarette) and intentionally delivered something else (a cigarette that was not, in fact, safer).

Given this compelling, simple theory, why did the plaintiffs suffer a major loss? In this column, I'll explain the reasons. I'll also consider what that loss might mean for the future of consumer class actions in the Second Circuit.

A Prediction Made by Many Observers, Based on the Oral Argument, Is Now Fulfilled

Last July I wrote a column suggesting that Michael Hausfeld, one of America's greatest plaintiffs' lawyers, had made a crucial error in an oral argument in this case - an error that, I contended, ensured that the Second Circuit would hand him a defeat. In fact, my prediction was confirmed--Hausfeld lost 3-0 before the Second Circuit. Importantly, however, I was far from

the only person who predicted that Hausfeld would lose. To the contrary, it was the conventional wisdom among lawyers observing the case that the Second Circuit would reverse the lower court's decision. After all, the district judge was Jack Weinstein, and his decision was a true Weinstein special--brilliant, iconoclastic, and somewhat inconsistent with precedent.

Hausfeld's major error, as I explained in my prior column, occurred when he told the panel that there was nothing out of the ordinary with Judge Weinstein's decision, and that they would be breaking with twenty years of precedent if they did not affirm the lower court. That statement was, on its face, ridiculous, and it left the two moderates on the panel - Judges Walker and Pooler - nowhere to turn if they were inclined to help the plaintiffs in the case. (The last member of the panel, Judge Winter, was a lost cause from the start.)

Before the argument, it had seemed plausible that the McLaughlin class action might appeal to the sympathies of the two moderates.

Other lawyers have brought lights cases around the country with mixed success. Moreover, since lights cases are fraud cases involving money damages, not personal injury, they should, in theory, have been easier to certify as class actions, since class actions in tobacco have proven impossible to certify when they involved highly individualized questions regarding cancer and other ailments. But this case proved somewhat different.

Overextending the Reach of the "Fraud on the Market" Theory

Hausfeld hit upon the idea of bringing a nationwide class action based on a federal racketeering statute, the Rackeetering-Influenced Corrupt Organizations ("RICO") law. This strategy had the advantage of permitting Hausfeld to consolidate the millions of small-value individual claims into a single, huge, $800 million class action ($2.4 billion, if treble damages were awarded, as RICO allows).

Racketeering law is still the law of fraud, however, and fraud class actions have their own problems. The single most important problem is that fraud typically requires proof of reliance -- that is, proof that it was the defendant's intentional misrepresentation that caused the victim of the scheme to part with his or her money.

Judge Weinstein held that because the advertisement campaigns for light cigarettes were directed towards the public as a whole, the question of class-wide reliance could be solved by simply borrowing the concept of "fraud on the market" from securities fraud. This theory holds that generalized, class-wide reliance can be shown - and individualized reliance need not be shown - if the defendant engaged in "uniform misrepresentations" to which the entire market for a particular product (such as a stock) was exposed.

Hausfeld suggested at last year's oral argument that the Second Circuit had already held in previous cases such as Moore v. PaineWebber, Inc. that generalized proof of reliance could be adopted by the courts where the defendant engaged in "uniform misrepresentations," and that Weinstein had merely applied Moore to the lights case. In my view, this was Hausfeld's biggest error: to claim

that the facts in the "lights" cases were just like the facts in financial fraud cases like Moore. As the Second Circuit noted in its rejection of Hausfeld's argument, it had stated in Moore that generalized proof of reliance would only be appropriate in the absence of "material variation in the kinds or degrees of reliance by the persons to whom" the misrepresentations were addressed.

At oral argument, the panel in the "lights" case was very concerned that the record suggested that smokers had a variety of reasons for buying "lights" cigarettes -- even though the advertising by the tobacco industry had affected the choices of almost all purchasers. The problem was that no one knew how much that advertising mattered to the smokers' overall decision of which cigarettes to buy, and whether to buy cigarettes at all. People may have bought "lights" for non-health-related reasons.

In sum, by saying to the Second Circuit that its previous rulings obliged it to treat a consumer product like cigarettes just like a financial product or a security, Hausfeld may have caused the panel to rule exactly the opposite way from the way he had sought. In the decision last week, the court seemed to suggest that, notwithstanding Moore, plaintiffs would be hard-pressed to be able to come up with cases where circumstantial evidence would be sufficient to permit a presumption of reliance.

As I said earlier, the decertification of the lights class action was not, in itself, a great surprise. The case was always a bit of a gamble. (In fact, the Supreme Court has just granted review in a federal preemption case that might eliminate "lights" litigation entirely.) But did the Second Circuit go further than just decertifying this particular action, to foreshadow doom for similar consumer actions in the future?

Did the Second Circuit Shut the Door on Future, Similar Consumer Class Actions?

Put another way, by overreaching, did Hausfeld provoke the Second Circuit into overreacting, thus producing a decision that shuts the door for future consumer class actions?

I don't think so. It is important to note that the Second Circuit went out of its way to distance itself from the Fifth Circuit's 1996 decision in Castano v. Am. Tobacco Co,. which the Second Circuit described as imposing a "blanket rule" against class certification whenever issues of individual reliance exist.

Furthermore, the phrase "material variation," which the court used to map out the boundary between acceptable and unacceptable class-wide treatment, is not meaningless --- although Hausfeld, in oral argument, seemed to suggest it was.

Rather, "material variation" clearly contemplates that will be some individual differences between the reasons for reliance among the members of a class. Thus, it does not require, for certification, a presumption that all members of the class have identical reasons for acting (as is the case in fraud-on-the-market in the securities context, where investors are presumed to all know about and act on public information).

Consider, for example, a hypothetical consumer fraud claim based on the purchase of word-processing software that fails to work with a certain type of computer, despite contrary representations by the manufacturer on the box. It may be the case that some of the class of consumers who purchased the software did not, in fact, rely on that representation. For example, some of these purchasers might not have owned a computer incompatible with the software until after they bought the software, so the misrepresentation may have been irrelevant to them at the point of purchase.

Monday, April 7, 2008

Taking A Look At Surveillance

US Attorney General Michael Mukasey said Friday that he was willing to compromise with Congress on legislation amending the Foreign Intelligence Security Act but that the legislature would have to provide a "workable bill".

Mukasey said that the bill passed by the US House of Representatives last week, which did not provide retroactive immunity to telecommunications companies that participated in the NSA warrantless surveillance program, did not meet this threshold. Last month, the Senate passed a version of the bill that did provide retroactive immunity to the companies. Mukasey stopped short of urging the House to adopt that version of the bill, however, and instead expressed hope that a compromise could be reached between the House bill and the Bush administration, which supports the immunity provision.

Mukasey's comments come roughly a week after President Bush said again that he would veto any FISA amendment legislation that did not include the immunity provision. The House bill would defer the issue of immunity to the courts to be resolved on a case-by-case basis, but would also allow the cases to be heard in closed-door hearings. Last month, Mukasey and US Director of National Intelligence Mike McConnell said that vital intelligence had been lost while telecommunications companies circumvented wiretapping orders as they waited for word on whether the immunity provision would be included in the new legislation. Mukasey said that the relationship between the private companies and the government had since been repaired and that intelligence gathering activities were now running smoothly.

Friday, April 4, 2008

Top Bush officials speak out against media shield bill

US Attorney General Michael Mukasey, National Intelligence Director Mike McConnell, Defense Secretary Robert Gates and Homeland Security Secretary Michael Chertoff joined forces Thursday to speak out against the Free Flow of Information Act of 2007 in separate letters to US senators, arguing that the bill poses a threat to national security. The bill would prevent courts from compelling reporters to disclose confidential sources, and generally allow reporters to refuse to testify as to their sources without being subject to contempt of court, but nonetheless contains exceptions for situations where the information sought is needed to prevent a terrorist act or to protect national security. Mukasey and McConnell said the bill's definition of journalists is broad enough to include potential terrorists and criminals, while Chertoff noted that it would include not only regular journalists, but those he said could "claim" to be journalists, such as bloggers, and Internet service providers. Gates added that the bill will make the US more vulnerable by allowing the bill to shield journalists, possibly allowing terrorist organizations to recruit journalists because of their immunity under the bill.

The US House of Representatives approved the bill last fall. The Bush administration and the US Department of Justice have continuously opposed the enactment of a federal reporter shield law citing national security concerns, while proponents, including media outlets, argue the legislation is necessary to protect freedom of the press.

America's Finest Trial Lawyer

Robert L. Shapiro, one of the nation’s best-known attorneys, is a co-founder of LegalZoom and a partner of Christensen, Miller, Fink, Jacobs, Glaser, Weil & Shapiro, LLP, a full-service law firm with approximately 120 attorneys.The highlights of Robert Shapiro’s legal career are numerous and include serving as lead counsel in United States of America v. Samango, the leading 9th Circuit case on grand juries, and such high-profile cases as People v. Christian Brando and People v. O.J. Simpson. Although known for his representation of celebrities, Mr. Shapiro has also represented corporate clients such as Mobil Oil, Northrop and Lawrence Engineering.

Robert is also a noted lecturer and has made presentations at major universities, the Practicing Law Institute, California Trial Lawyers Association and the California Public Defender Association. He is also the author of "On Second Thought" (California Lawyer Magazine, 1997), "For the Defense" (Loyola Law Review, November 1996), The Search For Justice: A Defense Attorney’s Brief on the O.J. Simpson Case (1996), "When The Press Calls: A Lawyer’s View" (California Litigation, Fall 1991) and Misconception (June 2001).

Robert is a co-founder of On this show he discusses how LegalZoom takes care of common legal documentation matters from your home or office. LegalZoom's online legal documentation service includes corporation, divorce, prenuptial, living trust, will, trademark, copyright, living will, restraining, orders LLC, and Tax.

LegalZoom uses the latest technology to help customers prepare reliable legal documents online. By answering easy-to-read online questionnaire, documents are prepared within 48 hours. LegalZoom even reviews documents and files them with the courts for loyal customers at no additional cost.

LegalZoom does not engage in the practice of law by rendering legal advice, but does offer general, nonspecific information and interactive help.

For further information, please visit or the LegalZoom Press Center.
In addition, Robert founded the The Brent Shapiro Foundation for Drug Awareness because the disease of alcohol and drug dependence is now reaching epidemic proportions. He discusses certain characteristics of this disease:
•This disease, it is an “equal opportunity” disease that is indiscriminate, affecting all ages from children to the elderly; the rich and poor alike; the educated and uneducated; male and females; and single individuals and families.

•Alcohol and drug dependency is an out of control disease that is ruining and taking the lives of our young people.

•Every person in America is affected by alcohol and drug dependence and its consequences - either personally, at home, in the workplace, as victims of crimes, and/or as a taxpayer.

Thursday, April 3, 2008

SEO For Lawyers?

Search engine optimization (SEO) is a set of methods aimed at improving the ranking of a website in search engine listings, and is an important part in search engine marketing.

Search engines display different kinds of listings in the search engine results pages (SERPs), including: pay per click advertisements, paid inclusion listings, and organic search results. SEO is primarily concerned with advancing the goals of a website by improving the number and position of its organic search results for a wide variety of relevant keywords. Search Engine Optimization strategies may increase both the number and quality of visitors. Search engine optimization can be offered as a stand-alone service, or as a part of a larger marketing effort, and can often be very effective when incorporated into the initial development and design of a site.

One of the main things to understand is the difference between search engines and directories.

Crawler based search engines rely on automated software agents called spiders. These spiders grab information like page titles, and textual content to be included in the search engines index or database. Search engines determine relevancy by applying a set of rules known as an algorithm. This algorithm determines whether to include a specific page in the results, based on the items captured by the spider. Google is a good example of this type of search engine.

The other types of search engines are those that have a directory. The main distinguishing factor here is the human element. Directories are organized by actual people who visit the submitted site. They basically decide the categorization of the web site and the wording of the titles and descriptions that will be the basis by which searchers will find the web site. LookSmart is an example of human powered directory. Search engines like Yahoo and MSN, present both crawler-based and human powered results, and are known as hybrid search engines.

For competitive, high-volume search terms, the cost of pay per click advertising can be substantial. Ranking well in the organic search results can provide the same targeted traffic at a potentially significant savings. Site owners may choose to optimize their sites for organic search, if the cost of optimization is less than the cost of advertising.

Not all sites have identical goals for search optimization. Some sites seek a wide array of traffic, and may be optimized to rank highly for commonly used search phrases. A broad search optimization strategy can work for a site that has broad interest, such as a newspaper or magazine, a directory, or site that displays advertising with a CPC revenue model. On the other hand, many businesses try to optimize their sites for large quantities of specific keywords that indicate readiness to buy. Overly broad search optimization can hurt your marketing strategy by generating a large volume of low-quality inquiries that cost money to handle, yet result in little business. A better focused plan concentrating on desirable traffic generates better quality sales leads, resulting in more sales. Search engine optimization can be very effective when used as part of a smart niche marketing strategy.

Lawyer to be Suspended Over Conduct

The former head of the Wayne County, MI Prosecutor Office's drug unit will be suspended with pay Friday and now faces an investigation that could lead to criminal charges for her actions in a 2005 cocaine case.

Prosecutor Kym Worthy, in a prepared statement released late Wednesday afternoon, said she asked the Michigan Prosecuting Attorney's Coordinating Council to find a prosecutor to probe Karen Plants' conduct in the case in which she allowed perjured police and witness testimony. Plants said she did so to protect the identity and safety of a paid informant.

Legal ethics experts and criminal attorneys said the allegations against Plants -- using perjured testimony to win a conviction -- strike at the heart of the criminal justice system.

"I would not bother to ask my class about it, the answer is so obvious," said Len Niehoff, a University of Michigan professor of evidence and legal ethics.

"As a prosecutor, you strike hard, fair blows and let justice be done," said defense lawyer Walter Piszczatowski, a former state and federal prosecutor. "Sometimes you face that choice: Disclose the confidential informant or kiss your case bye-bye. In the end, you have to do the right thing. You don't have people lie."

He said he was especially troubled that the informant stood to collect a percentage of the assets seized from the alleged dealers.

"The guy's got a tremendous motive to lie," Piszczatowski said. "Maybe the testimony's not about trapping criminals. It's about making money, and that's scary."

Worthy asked for the outside prosecutor because it would be a conflict of interest for her office to investigate Plants, a 17-year veteran of her office.

Plants was charged Monday with professional misconduct by the state Attorney Grievance Commission and could lose her law license. The commission also accused Plants of intentionally misleading jurors in her closing arguments. Worthy reassigned Plants from head of the office's Major Drug Unit on Tuesday.

Worthy's request Wednesday for a special prosecutor, which was done pending approval by the attorney general, raises the specter of a top figure in the battle against illegal drugs undergoing a criminal investigation.

Kim Warren Eddie, the council's assistant executive director, said his office should be able to find another prosecutor to pick up the matter within "a couple of days." Reassignments are made many times a year because a potential case involves someone with close professional, personal or family ties to a local prosecutor, Eddie said, adding that the Attorney General's Office could opt to handle the case itself.

Worthy would not comment beyond the prepared statement. Plants' lawyer, Kenneth Mogill, said that "on a personal level it's hard" for his client.

"But it's the right thing to do institutionally," he said. "And just as Kym Worthy is doing the right thing for the institution while this cloud hangs over Karen's head, the evidence is going to show that Karen acted with similar total integrity while prosecuting the case."

The grievance commission, the state Supreme Court's watchdog, charged Plants with professional misconduct Monday for allowing two Inkster cops and their confidential informant to lie under oath during a 2005 cocaine trial.

The episode stems from a March 11, 2005, Downriver drug bust that took 47 kilograms of cocaine off the streets.

During a preliminary examination, two evidentiary hearings and the trial, Plants allowed the officers and a witness to hide his role as the confidential informant, repeatedly denying that they knew one another, preventing defense lawyers from challenging the informant's credibility.
The informant, a paid tipster, was arrested during the bust but was freed without being charged.

Tuesday, April 1, 2008

Iraq vet loses in bid to sue Michael Moore

A federal appeals court has rejected a Massachusetts Army Sergeant's effort to sue film director Michael Moore for how he was portrayed in the anti-war documentary "Fahrenheit 9/11."

Army Sgt. Peter Damon lost both his arms when a tire of a Black Hawk helicopter blew while he was repairing the aircraft. In an interview used in the documentary, Damon was asked about a new painkiller the Army was using. Damon claimed Moore used a clip from that interview to depict Damon's comments as anti-war, when he was actually talking about coping with his pain.
He said he was humiliated and emotionally distressed by the portrayal.

Damon is shown shortly after Congressman Jim McDermott is speaking about the Bush administration and says, "You know, they say they're not leaving any veterans behind, but they're leaving all kinds of veterans behind."

Damon had contended Moore's positioning of the clip just after the congressman's comments makes him appear as if he feels like he was "left behind" by the Bush administration and the military.

Judge Aida Delgado-Colon said that while Damon's anger and frustration were understandable, the clip could not reasonably be construed as defamatory under state law.

The three-member appeals panel sided unanimously with Moore. Damon and his laywer, Philip Moran, did not immediately return calls from the Associated Press for comment.

What Women Lawyers Can Learn From Hillary Clinton

Love her or hate her, you have to admire U.S Sen. Hillary Clinton's tenacity. Whether she'll ultimately take the Democratic nomination for president remains up in the air; as of this writing, neither she nor her Democratic opponent,has cried "uncle." But, win or lose, like her or not, the New York senator's campaign offers women lawyers some valuable lessons as they fight their own battles in this still male-dominated profession.

Never underestimate an opponent. The most important mistake the Clinton campaign made was that it didn't seem to anticipate what it was up against. A first-term senator from Illinois nobody had heard of until four years ago? It should have been a cakewalk.Unfortunately, the Clinton campaign didn't seem to have put much of an organization in place beyond the Feb. 4 Super Tuesday primaries. It lost momentum just when it needed to pick up steam.

Fortunately, she managed a strong showing in Texas (and solid wins in Ohio and Rhode Island), so she's back in the race now. Butthere's no doubt that she didn't anticipate Obama becoming the Bono of Democratic Party politics, and she hadn't put in place the infrastructure for a campaign stretching well into the spring.