Wednesday, August 15, 2012
Police Can Track Cell Phone Says Fed'l Appeal Court
New 6th Circuit Court of Appeal case says police can track cell phone -[UNITED STATES OF AMERICA v. MELVIN SKINNER, No. 09-6497, UNITED
STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT 12a0262p.06; 2012 U.S. App.
LEXIS 16920; 2012 FED App. 0262P (6th Cir.) August 14, 2012, Filed] - what says you all?
Thursday, August 2, 2012
THE REALIGNMENT PROBLEM...and policy changes that will have to be made at all levels of government
"Public Safety Realignment: California at a Crossroads" was a briefing and conference held in San Francisco last week [a report by ACLU of California can be found on line at www.acluc.org/realignment]. Not a single prosecutorial office (nor legislator's office) was listed amongst the participants. Hopefully a few snuck in and got the information, if not, too bad. Why?
.
Realignment burdens [created by the 2011 US Supreme Court decision in Brown v Plata (131 S. Ct. 1910) which found that overcrowding in California's prisons to be so severe as to constitute cruel and unusual punishment] are real in that the capacity of the state prison system, while temporarily (and only in part) relieved by the early release/transfer of 17,000, the State is looking at having to release or transfer to local holding facilities another 16,000 state prisoners, and the realignment burdens are going to be a recurring problem. Why?
.
1. There is a troubling lack of state monitoring, data collection, outcome measurements and funding incentives to help counties successfully implement realignment (code for the State saying, here's your AB 109 hush bucks and leave us alone);
.
2. A dramatic increase in spending on county jails--facilitated by billions of dollars in state funding--particularly in those counties that have historically sent more people to state prison for low-level, non-violent offenses.
.
3. A shockingly high number of people who represent no real threat to public safety being held in county jails before having their day in court, incarcerated without trial simply they cannot afford bail.
.
Some of the suggestions:
.
1. Data Collection. Mandate standardized data collection and analysis across the 58 counties in order to monitor which policies and programs are working to reduce recidivism and reliance upon incarceration, and base policy and budget decisions on those findings;
.
2. Funding Formula. Revise the state allocation formula to incentivize counties to reduce recidivism and incarceration;
.
3.Sentencing Reforms. Enact statewide front-end sentencing reforms to help counties implement realignment;
.
4.Pretrial Detention reform. Amend statewide pretrial detention laws and implement new local pretrial release policies to keep behind bars only those that truly pose a risk to public safety;
.
5. Alternatives to incarceration. Create and fund concrete plans to develop community-based alternatives to detention for both pretrial and sentenced population;
.
6.Utilize New Sentencing Options. Encourage local courts to utilize realignment's new sentencing options that authorize judges to replace all or a part of a jail sentence with community sanctions or treatment programs;
.
7. Stop Jail Expansion. Halt or significantly reduce jail expansion and construction plans, including AB 900 funding and projects;
.
8. Limit Use of Immigration Detainers. Review the impact of immigration status and immigration detainers on inmates' detention to prioritize public safety needs.
.
Blogger Bob's comments:
.
1. Realignment is a legal reality and brings with it the very real need to make policy and budgetary priority changes; we spend two and half times MORE putting and keeping people in jail than educating our youth and that does not even include funding entitlement programs like Medi-Cal--the questions have to be asked, what schools do we close, what educational services do we cut, what people do we deny medical services to and cause their death so we can continue the flow of convictions and resulting incarcerations? When the public can see the choices being forced on us by the "leave-the-system-alone folks", maybe the change pressure will be real, but for now, significant change will not happen without more formula-based legislation (the newer and better AB 109 likely to be fought over?)
.
2. Electing people in support of ANY of the suggestions, is going to be tough--WHY? Many prosecuting agencies and prison industry advocates could care less. In fact in the last election cycle, anyone in a state race that suggested we look for ways to reduce the need for jail expansion by looking into alternative sentencing approaches and re-examine prosecution policies, were met with vicious (and pricey) hit piece campaigns--so while the suggestions are noted, who would carry the message against such a massive industry armada (the prison guard unions and their PACs/Non-Affiliated Committees, the Building Industry Association, certain construction trade unions that are involved in prison building projects--formidable opponents to say the least)
.
3. Judges, who stand for re-election in California, even though they have the power to consider other
sentencing options might be reluctant to do so for fear of offending the brethren (90% plus of the appointees are former DDAs,some of which maintain close ties with those groups from whence they came), for fear of being labelled "soft-on-crime" and have to face a DDA put up to run (by the current DA) against the sitting judge and absent that, the pro-institutional bias (and that's its easier and politically safer to order straight state prison time) is a tough nut to crack.
.
.
Realignment burdens [created by the 2011 US Supreme Court decision in Brown v Plata (131 S. Ct. 1910) which found that overcrowding in California's prisons to be so severe as to constitute cruel and unusual punishment] are real in that the capacity of the state prison system, while temporarily (and only in part) relieved by the early release/transfer of 17,000, the State is looking at having to release or transfer to local holding facilities another 16,000 state prisoners, and the realignment burdens are going to be a recurring problem. Why?
.
1. There is a troubling lack of state monitoring, data collection, outcome measurements and funding incentives to help counties successfully implement realignment (code for the State saying, here's your AB 109 hush bucks and leave us alone);
.
2. A dramatic increase in spending on county jails--facilitated by billions of dollars in state funding--particularly in those counties that have historically sent more people to state prison for low-level, non-violent offenses.
.
3. A shockingly high number of people who represent no real threat to public safety being held in county jails before having their day in court, incarcerated without trial simply they cannot afford bail.
.
Some of the suggestions:
.
1. Data Collection. Mandate standardized data collection and analysis across the 58 counties in order to monitor which policies and programs are working to reduce recidivism and reliance upon incarceration, and base policy and budget decisions on those findings;
.
2. Funding Formula. Revise the state allocation formula to incentivize counties to reduce recidivism and incarceration;
.
3.Sentencing Reforms. Enact statewide front-end sentencing reforms to help counties implement realignment;
.
4.Pretrial Detention reform. Amend statewide pretrial detention laws and implement new local pretrial release policies to keep behind bars only those that truly pose a risk to public safety;
.
5. Alternatives to incarceration. Create and fund concrete plans to develop community-based alternatives to detention for both pretrial and sentenced population;
.
6.Utilize New Sentencing Options. Encourage local courts to utilize realignment's new sentencing options that authorize judges to replace all or a part of a jail sentence with community sanctions or treatment programs;
.
7. Stop Jail Expansion. Halt or significantly reduce jail expansion and construction plans, including AB 900 funding and projects;
.
8. Limit Use of Immigration Detainers. Review the impact of immigration status and immigration detainers on inmates' detention to prioritize public safety needs.
.
Blogger Bob's comments:
.
1. Realignment is a legal reality and brings with it the very real need to make policy and budgetary priority changes; we spend two and half times MORE putting and keeping people in jail than educating our youth and that does not even include funding entitlement programs like Medi-Cal--the questions have to be asked, what schools do we close, what educational services do we cut, what people do we deny medical services to and cause their death so we can continue the flow of convictions and resulting incarcerations? When the public can see the choices being forced on us by the "leave-the-system-alone folks", maybe the change pressure will be real, but for now, significant change will not happen without more formula-based legislation (the newer and better AB 109 likely to be fought over?)
.
2. Electing people in support of ANY of the suggestions, is going to be tough--WHY? Many prosecuting agencies and prison industry advocates could care less. In fact in the last election cycle, anyone in a state race that suggested we look for ways to reduce the need for jail expansion by looking into alternative sentencing approaches and re-examine prosecution policies, were met with vicious (and pricey) hit piece campaigns--so while the suggestions are noted, who would carry the message against such a massive industry armada (the prison guard unions and their PACs/Non-Affiliated Committees, the Building Industry Association, certain construction trade unions that are involved in prison building projects--formidable opponents to say the least)
.
3. Judges, who stand for re-election in California, even though they have the power to consider other
sentencing options might be reluctant to do so for fear of offending the brethren (90% plus of the appointees are former DDAs,some of which maintain close ties with those groups from whence they came), for fear of being labelled "soft-on-crime" and have to face a DDA put up to run (by the current DA) against the sitting judge and absent that, the pro-institutional bias (and that's its easier and politically safer to order straight state prison time) is a tough nut to crack.
.
Indictment of former SEIU Union Leader's Timing Not the Type of Bad Publicity Prop 32 Opponents & Organized Labor (Tyrone Freeman) Wanted to See Before the Upcoming Election?
Indictment of former SEIU Union Leader's Timing Not the Type of Bad Publicity Prop 32 Opponents & Organized Labor Wanted to See Before the Upcoming Election?
This message is reprint essentially of an email sent to Blogger Bob by the National Union of HealthCare Workers [National Union of Healthcare Workers, 5801 Christie Ave.
Suite 525,Emeryville, CA 94608]--I think it bears note in light of the upcoming elections:
"-SEIU leader faces up to 200 years in jail
-Tyrone Freeman indicted on 15 felony counts including embezzlement and mail fraud
-SEIU-UHW's Leon Chow leaves Supervisor race
SEIU leader indicted
Tuesday, former SEIU leader Tyrone Freeman was indicted by a federal grand jury in Los Angeles on 15 counts, including embezzlement, mail fraud, and filing false tax returns.
The indictment, as reported in the Los Angeles Times, states that Freeman misused hundreds of thousands of SEIU members’ dues dollars while he was President of SEIU Local 6434, which represents 170,000 low-wage homecare workers across California. Freeman also served as a Vice President of SEIU’s International Executive Board.
The charges, which could result in a jail sentence of up to 200 years, allege that Freeman spent union members’ dues on lavish golf tournaments, Beverly Hills cigar bars, spa treatments, his own wedding in Hawai’i, and payments to family members’ businesses.
The criminal indictment offers an important perspective on SEIU’s disastrous trusteeship of SEIU-UHW. In 2009, SEIU removed SEIU-UHW’s democratically-elected officials for resisting SEIU’s order to transfer 65,000 members to Tyrone Freeman’s SEIU Local 6434. Freeman was a close ally of SEIU President Andy Stern, who appointed Freeman to his position and “nurtured Freeman’s rise in the union,” according to the Los Angeles Times. Criminal investigators now believe that Freeman used members’ dues to pursue a “lifestyle of $175 glasses of cognac, $250 bottles of wine and a $3,400 trip to the NFL Pro Bowl,” according to the Los Angeles Times.
Freeman joins a long list of SEIU officials who’ve participated in a culture of corruption at the union, including Annelle Grajeda, Alejandro Stephens, Wade Rathke, Bruce Raynor and Rickman Jackson.
SEIU-UHW's Leon Chow leaves Supervisor race
Also this week, SEIU-UHW Director of External Affairs and Executive Board member Leon Chow shuttered his campaign for San Francisco’s Board of Supervisors after newspapers reported on Chow’s apparent violations of California election laws. Chow reportedly violated state laws by registering to vote in San Francisco even though he lived in a different county. Chow’s campaign to unseat incumbent Sup. John Avalos -- one of the board’s most progressive members -- was backed by SEIU-UHW and the Chamber of Commerce.
This message is reprint essentially of an email sent to Blogger Bob by the National Union of HealthCare Workers [National Union of Healthcare Workers, 5801 Christie Ave.
Suite 525,Emeryville, CA 94608]--I think it bears note in light of the upcoming elections:
"-SEIU leader faces up to 200 years in jail
-Tyrone Freeman indicted on 15 felony counts including embezzlement and mail fraud
-SEIU-UHW's Leon Chow leaves Supervisor race
SEIU leader indicted
Tuesday, former SEIU leader Tyrone Freeman was indicted by a federal grand jury in Los Angeles on 15 counts, including embezzlement, mail fraud, and filing false tax returns.
The indictment, as reported in the Los Angeles Times, states that Freeman misused hundreds of thousands of SEIU members’ dues dollars while he was President of SEIU Local 6434, which represents 170,000 low-wage homecare workers across California. Freeman also served as a Vice President of SEIU’s International Executive Board.
The charges, which could result in a jail sentence of up to 200 years, allege that Freeman spent union members’ dues on lavish golf tournaments, Beverly Hills cigar bars, spa treatments, his own wedding in Hawai’i, and payments to family members’ businesses.
The criminal indictment offers an important perspective on SEIU’s disastrous trusteeship of SEIU-UHW. In 2009, SEIU removed SEIU-UHW’s democratically-elected officials for resisting SEIU’s order to transfer 65,000 members to Tyrone Freeman’s SEIU Local 6434. Freeman was a close ally of SEIU President Andy Stern, who appointed Freeman to his position and “nurtured Freeman’s rise in the union,” according to the Los Angeles Times. Criminal investigators now believe that Freeman used members’ dues to pursue a “lifestyle of $175 glasses of cognac, $250 bottles of wine and a $3,400 trip to the NFL Pro Bowl,” according to the Los Angeles Times.
Freeman joins a long list of SEIU officials who’ve participated in a culture of corruption at the union, including Annelle Grajeda, Alejandro Stephens, Wade Rathke, Bruce Raynor and Rickman Jackson.
SEIU-UHW's Leon Chow leaves Supervisor race
Also this week, SEIU-UHW Director of External Affairs and Executive Board member Leon Chow shuttered his campaign for San Francisco’s Board of Supervisors after newspapers reported on Chow’s apparent violations of California election laws. Chow reportedly violated state laws by registering to vote in San Francisco even though he lived in a different county. Chow’s campaign to unseat incumbent Sup. John Avalos -- one of the board’s most progressive members -- was backed by SEIU-UHW and the Chamber of Commerce.
Please visit our website at www.NUHW.org and feel free to contact us with any questions at info@nuhw.org!"
..
Blogger Bob's comments
.
.. While the general public kinda blurs things together on "SEIU", they clearly should not. SEIU has been active and bringing representation to many people that needed the help. How much of this indictment results from internal policing is not known. It was not that many years ago that Hoffa, Jr. had a fight with another contingent of the Teamsters. The result was federal intervention and indictments. It looks like SEIU Freeman got caught with his hand in the cookie jar. More union scrutiny maybe is in the horizon
... I for one, having watched "Non-Affiliated Committee's" (state political PACs) fund oppositions AGAINST pro-union candidates (John Coffey--33rd AD) in the last election cycle and actually support candidates that were staunch right-to-work (anti-union) candidates (Bill Jahn) instead, was a thing to behold, and maybe something membership SHOULD maybe have more control over the funds being used for same? [e.g. should they know their fees are being used to back people that want to fight union-backed candidates?]
...Are the San Bernardino County public employee unions next? There is a real fight coming up with the pension plan liabilities in San Bernardino County..Lovingood and Roelle are the 2 supervisorial candidates for the 1st Supervisorial District with differing views of what, when and how should legacy liabilities (like pensions) be given the sacred cow blessing. Potential swing votes on the Board? Stay tuned.
Tuesday, July 31, 2012
DA Discovery Abuses....Brady Ignored?
Interesting article on the ongoing Brady fight. Specifically mentioned is the 2010 Working Group on Brady hosted by the
Jacob Burns Ethics Center at Cardozo Law School [cosponsored by,
among others, the National District Attorneys Association] and some criticisms.
http://www.newyorklawjournal.com/PubArticleNY.jsp?id=1202564932174&DA_Policies_Fail_to_Protect_Rights&slreturn=20120631223412
http://www.newyorklawjournal.com/PubArticleNY.jsp?id=1202564932174&DA_Policies_Fail_to_Protect_Rights&slreturn=20120631223412
Wednesday, July 11, 2012
Compassionate Release & the Federal Bureau of Prisons
From the Amy Baron-Evans, Federal Defenders:
As you know, BOP rarely files a motion for early release under 18 U.S.C. § 3582(c)(1)(A) when an inmate has a terminal illness or for other extraordinary and compelling reasons under USSG 1B1.13. In this case, the inmate, Phillip Smith, was diagnosed with acute myelogenous leukemia in August 2011, but BOP twice refused to file the motion because, it said, his criminal history outweighed his medical needs (and imminent death). Phillip contacted his lawyer and he filed a motion with the court, contending that BOP was putting itself in the position of the judge, not filing the motion unless it thought the motion should be granted.
After a couple of weeks of litigation, BOP agreed to file the motion, and the judge immediately ordered Mr. Smith’s release on March 12, 2012, seven months after the motion should have been filed. Mr. Smith gave a
videotaped interview from home on April 2 and died April 9. Hundreds of people die of natural causes in BOP custody every year but BOP filed only 55 motions from 2009 to 2011. This was an unusual case in that the client called his lawyer and the lawyer took action that put pressure on BOP to file the motion.
Here is a blog that links to the interview of Phillip Smith and the pleadings in the case.
After a couple of weeks of litigation, BOP agreed to file the motion, and the judge immediately ordered Mr. Smith’s release on March 12, 2012, seven months after the motion should have been filed. Mr. Smith gave a
videotaped interview from home on April 2 and died April 9. Hundreds of people die of natural causes in BOP custody every year but BOP filed only 55 motions from 2009 to 2011. This was an unusual case in that the client called his lawyer and the lawyer took action that put pressure on BOP to file the motion.
Here is a blog that links to the interview of Phillip Smith and the pleadings in the case.
Bureau of Prisons Blog of Possible Interest
For those who are interested, the Frost-Bussert, LLC firm out of New Haven CT recently started a blog concerning federal Bureau of Prisons issues: http://thebopblog.blogspot.
Thursday, March 29, 2012
OVERCRIMINALIZATION webarticle by CHRISTIAN BROADCASTING NETWORK - WOW-- MAYBE the OVERCRIMINALIZATION DIALOGUE CAN RESTART ANEW?
http://www.cbn.com/cbnnews/us/2012/March/Overcriminalization-Making-Us-a-Nation-of-Felons/ - interesting take on a problem a few of us have been pitching for a long time. We have many cases getting filed that make common folk scratch their heads. Maybe the dialogue can get started with new faces and voices and help us focus resources to stopping crimes and criminals that threatened our society. Pat Robertson joins the dialogue. Video that comes with the article is not bad.
Monday, February 27, 2012
Time to Offer Some Public Education on Identity Theft??
"Over 8 million people in the U.S. were victims of identity theft in 2010. Come find out what you can do to protect your personal information as well as avoid and recover from identity theft"--an announcement from the Santa Clara County DA re a public seminar on identity theft on March 15th of this year. Take a hint Mikey..... I recall the San Bernardino County's DA's office having fliers some years ago offering some guidance and suggestions. Maybe its time for San Bernardino to step up to the plate and do more?
Good New York Times Article on False Confessions
http://www.nytimes.com/2012/02/26/opinion/sunday/why-do-innocent-people-confess.html?_r=2
Wednesday, February 22, 2012
GOOGLE WEB HISTORY PRIVACY OPTION-EXERCISE BEFORE MARCH 1
PRIVACY ALERT--MUST ACT BEFORE MARCH 1, 2012!!!!
Want to Delete Web History Before Google Gathering Takes Effect? EFF Shows How ("Google plans to begin combining your data into a single cauldron on March 1....EFF is offering step-by-step instructions on how to delete your Web history along with screen shots of the pages you will see. First, EFF says, sign in to your Google account. Then go to https://google.com/history (it worked for me when I went to www.google.com/history), click “remove all Web History” and click OK. After taking these steps, your Web history will remain off for that account until you enable it again.")
Want to Delete Web History Before Google Gathering Takes Effect? EFF Shows How ("Google plans to begin combining your data into a single cauldron on March 1....EFF is offering step-by-step instructions on how to delete your Web history along with screen shots of the pages you will see. First, EFF says, sign in to your Google account. Then go to https://google.com/history (it worked for me when I went to www.google.com/history), click “remove all Web History” and click OK. After taking these steps, your Web history will remain off for that account until you enable it again.")
Tuesday, February 21, 2012
Judge OK'd $722K Legal Fees Clawback Due to Withheld Facebook Photos and Information - News - ABA Journal
Social networking use can impact cases, as can the actions of a lawyer that thinks he or she is helping a client manage their social networking presence. While clients are often told by their attorneys to beware of what is said in social networks, some attorneys put warnings in their retainer agreements and others back it up in the intake process with handouts and fliers, the case reported in the American Bar Association Journal is a WARNING, WARNING WILL ROBINSON story to take note of!!
[See: Va. Judge OK'd $722K Legal Fees Clawback Due to Withheld Facebook Photos and Information - News - ABA Journal]
[See: Va. Judge OK'd $722K Legal Fees Clawback Due to Withheld Facebook Photos and Information - News - ABA Journal]
Monday, February 20, 2012
Chief Burns...where art thou???
The ongoing leave of absence of Chief Burns (Barstow) is a tad bit curious. How long does it take to answer a few questions?
Thursday, February 16, 2012
ETHICAL ISSUES DISCUSSED IN COLORADO OPINION RE WHAT IS NOT FAIR COMMENT TO A JURY DISCHARGED FROM SERVICE
Ethics Opinion 70: Juror Communications, 09/21/85; Addendum Issued 1995
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PLEASE NOTE: This opinion was issued before the January 1, 2008 effective date of the revised Colorado Rules of Professional Conduct. The revised Rules may affect the analysis and conclusions contained in the opinion, and the opinion is under review by the Ethics Committee in light of the revised Rules. Lawyers should not rely on this opinion and should consult the revised Rules in connection with the issues addressed by the opinion.
.
The following Formal Opinion was written by
the Ethics Committee of the Colorado Bar Association
.
[Formal Ethics Opinions are issued for advisory purposes only and are not in any way binding on the Colorado Supreme Court, the Presiding Disciplinary Judge, the Attorney Regulation Committee, or the Office of Attorney Regulation Counsel and do not provide protection against disciplinary actions.]
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70 JUROR COMMUNICATIONS
Adopted September 21, 1985.
Addendum issued 1995.
.
Syllabus
.
After a verdict has been returned, it is improper for an attorney who has participated in the trial to tell the jury about information that was not presented at trial, if such information is disclosed to the jury with the intention of or in the spirit of criticizing the jury's decision, influencing the actions of jurors in future jury service, harassing the jury, or otherwise behaving improperly toward jurors in any manner prohibited by the Code of Professional Responsibility. This rule applies whether the information not presented was suppressed or inadmissible pursuant to a ruling by the judge in the case.
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Applicable Standards and Law
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The following obligation is imposed by DR 7-108(D), of the Colorado Code of Professional Responsibility (the "Code"):
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(d) After discharge of the jury from further consideration of a case with which the lawyer was connected, the lawyer shall not ask questions of or make comments to a member of that jury that are calculated merely to harass or embarrass the juror or to influence his actions in future jury service.
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Also pertinent are EC 7-29, 7-30, 7-31 and 7-32, which state as follows:
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EC 7-29 To safeguard the impartiality that is essential to the judicial process, veniremen and jurors should be protected against extraneous influences. When impartiality is present, public confidence in the judicial system is enhanced. There should be no extrajudicial communication with veniremen prior to trial or with jurors during trial by or on behalf of a lawyer connected with the case. Furthermore, a lawyer who is not connected with the case should not communicate with or cause another to communicate with a venireman or a juror about the case. After the trial, communication by a lawyer with jurors is permitted so long as he refrains from asking questions or making comments that tend to harass or embarrass the juror or to influence actions of the juror in future cases. Were a lawyer to be prohibited from communicating after trial with a juror, he could not ascertain if the verdict might be subject to legal challenge, in which event the invalidity of a verdict might go undetected. When an extrajudicial communication by a lawyer with a juror is permitted by law, it should be made considerately and with deference to the personal feelings of the juror.
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EC 7-30 Vexatious or harassing investigations of veniremen or jurors seriously impair the effectiveness of our jury system. For this reason, a lawyer or anyone on his behalf who conducts an investigation of veniremen or jurors should act with circumspection and restraint.
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EC 7-31 Communications with or investigations of members of families of veniremen or jurors by a lawyer or by anyone on his behalf are subject to the restrictions imposed upon the lawyer with respect to his communications with or investigations of veniremen and jurors.
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EC 7-32 Because of his duty to aid in preserving the integrity of the jury system, a lawyer who learns of improper conduct by or towards a venireman, a juror, or a member of the family of either should make a prompt report to the court regarding such conduct.
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See also EC 7-36 of the Code, which states that judicial hearings are to be conducted in a dignified manner, and that an attorney should not engage in conduct that offends the decorum of judicial proceedings.
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The American Bar Association Standards for Criminal Justice: The Prosecution Function (the "Criminal Justice Standards"), Section 3.54(c) provide:
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(c) After discharge of the jury from further consideration of a case, it is unprofessional conduct for the prosecutor to intentionally make comments to or ask questions of a juror for the purpose of harassing or embarrassing the juror in any way which will tend to influence judgment in future jury service.
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The comment to the above-quoted section of the Criminal Justice Standards states in part (footnote omitted):
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Post-trial Interrogation
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Since it is vital to the functioning of the jury system that jurors not be influenced in their deliberations by fears that they subsequently will be harassed by lawyers or others who wish to learn what transpired in the jury room, neither defense counsel nor the prosecutor should discuss a case with jurors after trial in a way that is critical of the verdict.
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Pursuant to Rule 606(b), Colorado Rules of Evidence, where there is an inquiry into the validity of the jury's verdict, a juror may not testify about statements made by jurors during the course of deliberations. A juror may, however, "testify on the question whether extraneous prejudicial information was improperly brought to bear" upon him.
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If an attorney disclosed to the jury evidence that had been suppressed, there is a risk that where a post-trial inquiry is made, and the jurors subsequently are required to testify pursuant to Rule 606(b), the jurors' recollections will be tainted by the subsequently received, inadmissible information. It is even possible that a juror would himself initiate such an inquiry on the basis of the evidence that was not admitted at trial. This would lead to uncertainty in jury verdicts.
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Still another pertinent consideration is Colorado Jury Instructions Civil 1-16 Mandatory Instruction Upon Discharge. This instruction, like its very similar criminal counterpart, must be repeated by the court upon the discharge of the jury. It states, in pertinent part:
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The attorneys or the parties at the conclusion of a jury trial may desire to talk with the members of the jury concerning the reasons for their verdict. For your guidance, you are advised that it is entirely proper for you to talk with the attorneys or the parties and you are at liberty to do so; however, you are not required to do so. Whether you do so is entirely a matter of your own choice.
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Undoubtedly, your decision will be respected. However, if you decline to discuss the case and an attorney persists in discussing the case over your objection, or becomes critical of your services as a juror, please report the incident to me.
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Rationale
.
The Code contemplates that attorneys may speak with jurors after a trial regarding the proceedings. The practice of talking informally with willing jurors after a trial is a common one in our state courts, although it is not permitted in the federal courts and some attorneys would rather the practice was prohibited.
The Code also imposes a responsibility on attorneys, however, not to say anything to jurors with the intent to create a negative impression by the jurors regarding future jury service. The Criminal Justice Standards, quoted above, impose a slightly different obligation than the Code, that is, the obligation not to discuss the case in a way that is critical of the verdict.
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In either a civil or a criminal case, disclosure to the jurors of evidence that was inadmissible or was suppressed, or simply was not introduced, could be designed to be critical of the verdict that had been rendered. This would be true where the evidence not introduced would tend to support a verdict other than the one actually rendered by the jury. In effect, the attorney very well could be telling members of the jury that they were wrong.
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Not only is such conduct exactly the kind of conduct that is prohibited by the Criminal Justice Standards, but it also appears to be calculated to embarrass the jurors, by showing them that they made the wrong decision. Such is not permitted, and an attorney who observes or becomes aware of such conduct is required to report it to the court pursuant to EC 7-32.
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Conclusion
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After a verdict has been returned, it is improper for an attorney who has participated in the trial to tell the jury about information that was not presented at trial, if such information is disclosed to the jury with the intention of, or in the spirit of, criticizing the jury's decision, influencing the actions of jurors in future jury service, harassing the jury, or otherwise behaving improperly toward jurors in any manner prohibited by the Code of Professional Responsibility.
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If an attorney becomes aware of improper communications with a juror by an attorney, i.e., conduct proscribed by any of the above, pursuant to EC 7-32, the attorney who became aware of the improper conduct has an obligation to "make a prompt report to the court regarding such conduct."
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1995 Addendum
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The Colorado Rules of Professional Conduct became effective on January 1, 1993, replacing the Code of Professional Responsibility. While the language of the Rules is somewhat different from the Code, the Ethics Committee considers this Opinion to continue to provide guidance to attorneys in this area. Attorneys are cautioned to review Tables A & B: Related Sections in the Colorado Rules of Professional Conduct and The Colorado Code of Professional Responsibility (found in the Colorado Ethics Handbook), to update the research contained in this Opinion and to conduct any independent research necessary.
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Relevant provisions of the Colorado Rules of Professional Conduct, which should be examined together with this Opinion, are Rule 3.5(a) (regarding improperly influencing jurors); Rule 3.5(c) (concerning conduct intended to disrupt a tribunal); Rule 4.4 (relating to rights of third persons); and Rule 8.4(d) (regarding conduct prejudicial to the administration of justice).
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Colorado Bar Association | 1900 Grant St, 9th Floor | Denver, CO 80203 | 303.860.1115
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Blogger Bob's comment: Not mandatory, but a good read; we have all seen conduct inconsistent with the advisory opinion.
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PLEASE NOTE: This opinion was issued before the January 1, 2008 effective date of the revised Colorado Rules of Professional Conduct. The revised Rules may affect the analysis and conclusions contained in the opinion, and the opinion is under review by the Ethics Committee in light of the revised Rules. Lawyers should not rely on this opinion and should consult the revised Rules in connection with the issues addressed by the opinion.
.
The following Formal Opinion was written by
the Ethics Committee of the Colorado Bar Association
.
[Formal Ethics Opinions are issued for advisory purposes only and are not in any way binding on the Colorado Supreme Court, the Presiding Disciplinary Judge, the Attorney Regulation Committee, or the Office of Attorney Regulation Counsel and do not provide protection against disciplinary actions.]
.
70 JUROR COMMUNICATIONS
Adopted September 21, 1985.
Addendum issued 1995.
.
Syllabus
.
After a verdict has been returned, it is improper for an attorney who has participated in the trial to tell the jury about information that was not presented at trial, if such information is disclosed to the jury with the intention of or in the spirit of criticizing the jury's decision, influencing the actions of jurors in future jury service, harassing the jury, or otherwise behaving improperly toward jurors in any manner prohibited by the Code of Professional Responsibility. This rule applies whether the information not presented was suppressed or inadmissible pursuant to a ruling by the judge in the case.
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Applicable Standards and Law
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The following obligation is imposed by DR 7-108(D), of the Colorado Code of Professional Responsibility (the "Code"):
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(d) After discharge of the jury from further consideration of a case with which the lawyer was connected, the lawyer shall not ask questions of or make comments to a member of that jury that are calculated merely to harass or embarrass the juror or to influence his actions in future jury service.
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Also pertinent are EC 7-29, 7-30, 7-31 and 7-32, which state as follows:
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EC 7-29 To safeguard the impartiality that is essential to the judicial process, veniremen and jurors should be protected against extraneous influences. When impartiality is present, public confidence in the judicial system is enhanced. There should be no extrajudicial communication with veniremen prior to trial or with jurors during trial by or on behalf of a lawyer connected with the case. Furthermore, a lawyer who is not connected with the case should not communicate with or cause another to communicate with a venireman or a juror about the case. After the trial, communication by a lawyer with jurors is permitted so long as he refrains from asking questions or making comments that tend to harass or embarrass the juror or to influence actions of the juror in future cases. Were a lawyer to be prohibited from communicating after trial with a juror, he could not ascertain if the verdict might be subject to legal challenge, in which event the invalidity of a verdict might go undetected. When an extrajudicial communication by a lawyer with a juror is permitted by law, it should be made considerately and with deference to the personal feelings of the juror.
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EC 7-30 Vexatious or harassing investigations of veniremen or jurors seriously impair the effectiveness of our jury system. For this reason, a lawyer or anyone on his behalf who conducts an investigation of veniremen or jurors should act with circumspection and restraint.
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EC 7-31 Communications with or investigations of members of families of veniremen or jurors by a lawyer or by anyone on his behalf are subject to the restrictions imposed upon the lawyer with respect to his communications with or investigations of veniremen and jurors.
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EC 7-32 Because of his duty to aid in preserving the integrity of the jury system, a lawyer who learns of improper conduct by or towards a venireman, a juror, or a member of the family of either should make a prompt report to the court regarding such conduct.
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See also EC 7-36 of the Code, which states that judicial hearings are to be conducted in a dignified manner, and that an attorney should not engage in conduct that offends the decorum of judicial proceedings.
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The American Bar Association Standards for Criminal Justice: The Prosecution Function (the "Criminal Justice Standards"), Section 3.54(c) provide:
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(c) After discharge of the jury from further consideration of a case, it is unprofessional conduct for the prosecutor to intentionally make comments to or ask questions of a juror for the purpose of harassing or embarrassing the juror in any way which will tend to influence judgment in future jury service.
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The comment to the above-quoted section of the Criminal Justice Standards states in part (footnote omitted):
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Post-trial Interrogation
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Since it is vital to the functioning of the jury system that jurors not be influenced in their deliberations by fears that they subsequently will be harassed by lawyers or others who wish to learn what transpired in the jury room, neither defense counsel nor the prosecutor should discuss a case with jurors after trial in a way that is critical of the verdict.
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Pursuant to Rule 606(b), Colorado Rules of Evidence, where there is an inquiry into the validity of the jury's verdict, a juror may not testify about statements made by jurors during the course of deliberations. A juror may, however, "testify on the question whether extraneous prejudicial information was improperly brought to bear" upon him.
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If an attorney disclosed to the jury evidence that had been suppressed, there is a risk that where a post-trial inquiry is made, and the jurors subsequently are required to testify pursuant to Rule 606(b), the jurors' recollections will be tainted by the subsequently received, inadmissible information. It is even possible that a juror would himself initiate such an inquiry on the basis of the evidence that was not admitted at trial. This would lead to uncertainty in jury verdicts.
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Still another pertinent consideration is Colorado Jury Instructions Civil 1-16 Mandatory Instruction Upon Discharge. This instruction, like its very similar criminal counterpart, must be repeated by the court upon the discharge of the jury. It states, in pertinent part:
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The attorneys or the parties at the conclusion of a jury trial may desire to talk with the members of the jury concerning the reasons for their verdict. For your guidance, you are advised that it is entirely proper for you to talk with the attorneys or the parties and you are at liberty to do so; however, you are not required to do so. Whether you do so is entirely a matter of your own choice.
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Undoubtedly, your decision will be respected. However, if you decline to discuss the case and an attorney persists in discussing the case over your objection, or becomes critical of your services as a juror, please report the incident to me.
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Rationale
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The Code contemplates that attorneys may speak with jurors after a trial regarding the proceedings. The practice of talking informally with willing jurors after a trial is a common one in our state courts, although it is not permitted in the federal courts and some attorneys would rather the practice was prohibited.
The Code also imposes a responsibility on attorneys, however, not to say anything to jurors with the intent to create a negative impression by the jurors regarding future jury service. The Criminal Justice Standards, quoted above, impose a slightly different obligation than the Code, that is, the obligation not to discuss the case in a way that is critical of the verdict.
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In either a civil or a criminal case, disclosure to the jurors of evidence that was inadmissible or was suppressed, or simply was not introduced, could be designed to be critical of the verdict that had been rendered. This would be true where the evidence not introduced would tend to support a verdict other than the one actually rendered by the jury. In effect, the attorney very well could be telling members of the jury that they were wrong.
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Not only is such conduct exactly the kind of conduct that is prohibited by the Criminal Justice Standards, but it also appears to be calculated to embarrass the jurors, by showing them that they made the wrong decision. Such is not permitted, and an attorney who observes or becomes aware of such conduct is required to report it to the court pursuant to EC 7-32.
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Conclusion
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After a verdict has been returned, it is improper for an attorney who has participated in the trial to tell the jury about information that was not presented at trial, if such information is disclosed to the jury with the intention of, or in the spirit of, criticizing the jury's decision, influencing the actions of jurors in future jury service, harassing the jury, or otherwise behaving improperly toward jurors in any manner prohibited by the Code of Professional Responsibility.
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If an attorney becomes aware of improper communications with a juror by an attorney, i.e., conduct proscribed by any of the above, pursuant to EC 7-32, the attorney who became aware of the improper conduct has an obligation to "make a prompt report to the court regarding such conduct."
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1995 Addendum
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The Colorado Rules of Professional Conduct became effective on January 1, 1993, replacing the Code of Professional Responsibility. While the language of the Rules is somewhat different from the Code, the Ethics Committee considers this Opinion to continue to provide guidance to attorneys in this area. Attorneys are cautioned to review Tables A & B: Related Sections in the Colorado Rules of Professional Conduct and The Colorado Code of Professional Responsibility (found in the Colorado Ethics Handbook), to update the research contained in this Opinion and to conduct any independent research necessary.
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Relevant provisions of the Colorado Rules of Professional Conduct, which should be examined together with this Opinion, are Rule 3.5(a) (regarding improperly influencing jurors); Rule 3.5(c) (concerning conduct intended to disrupt a tribunal); Rule 4.4 (relating to rights of third persons); and Rule 8.4(d) (regarding conduct prejudicial to the administration of justice).
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Colorado Bar Association | 1900 Grant St, 9th Floor | Denver, CO 80203 | 303.860.1115
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Blogger Bob's comment: Not mandatory, but a good read; we have all seen conduct inconsistent with the advisory opinion.
Friday, February 10, 2012
Before Kamala Harris Takes a Bow, Maybe She Should Read This........
The link for credit purposes [which might not be a bad link to add to your sources]:
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> http://www.nakedcapitalism.com/2012/02/the-top-twelve-reasons-why-you-should-hate-the-mortgage-settlement.html
>
In a report carrier by another one of the major media outlets, it was suggested upwards of 85% of the nmortgage fraud in Harris' old stomping grounds were frauds committed by the lenders or their agents [http://www.nytimes.com/2012/02/16/business/california-audit-finds-broad-irregularities-in-foreclosures.html?_r=1]. Any deal which cuts off prosecution, like this in part does, seems to benefit people doing business in Harris' old stomping grounds?--hmmm---hope that was not an intended benefit. In sum, some of the other problems with the mortgage "settlement" deal include:
1. The Wall Street Journal is also reporting that the SEC is about to launch some securities litigation against major banks, but since the statute of limitations has already run out on securities filings [kinda like what Mike Ramos did for his buddies in San Bernardino County], this means the SEC may tag the banks for some of the very last deals before the subprime market tanked [the formula? Know your buds are breaking the law, but delay prosecution so most if not all of what they did can't be touched??]
2. With the mortgage settlement terms not yet released [funny how people claim credit in the media for something they can't be challenged on], but some details have been leaked:
a. For the top 5 servicers, $26 billion is claimed, but of that, roughly $17 billion is credits for principal modifications, which will come from mortgages owned by investors [not the mom and pop owners]. $3 billion is for refinances, and only $5 billion will be in the form of hard cash payments, the $1500 to $2000 per borrower foreclosed on between September 2008 and December 2011--like big deal, the crooks get away and the people that lost their home get some of their moving costs reimbursed--this is justice??--people who lost their homes from mortgage fraud from September 2008 to December 2011 are screwed twice!!
b. Banks will be required to modify second liens that sit behind firsts. So the banks will focus on borrowers where they do not have second lien exposure, and this also makes the settlement less helpful to struggling homeowners, since borrowers with both second and first liens default at much higher rates than those without second mortgages--so its a paper deal with no real teeth!!
Also per the Journal:
5. “It’s not new money. It’s all soft dollars to the banks,” said Paul Miller, a bank analyst at FBR Capital Markets [opps, another bailout funded by the money the banks won't have to pay back on the earlier bailout funds owed back to the government??].
>
> The Times is also subdued:
>
> Despite the deal's billions in earmarks, the aid will help a small portion of the millions of borrowers who are delinquent and facing foreclosure. The success could depend in part on how effectively the program is carried out because earlier efforts by Washington aimed at troubled borrowers helped few.
>
6. Schneiderman’s MERS suit survives, and he can add more banks as defendants. It isn’t clear what became of the Biden and Coakley MERS suits, but Biden sounded pretty adamant in past media presentations on preserving that. Why don't we have a MERS suit in California Ms. Harris?
7. Nevada’s and Arizona’s suits against Countrywide for violating its past consent decree on mortgage servicing has, in a new Orwellianism, been “folded into” the settlement effectively bailing out a bank for breaching the earlier agreement--so what will change to make Countrywide and its succecssor any more likely to follow the rules?
>
8. The five big players in the settlement have already set aside reserves sufficient for this deal, so they made the deal based on WHAT they were going to set aside--noting like handicapping the settlement negotiations!!
>
9. Here are the top twelve reasons why this deal according to the "Naked Capitalism" website stinks:
>
> 1. We’ve now set a price for forgeries and fabricating documents. It’s $2000 per loan. This is a rounding error compared to the chain of title problem these systematic practices were designed to circumvent. The cost is also trivial in comparison to the average loan, which is roughly $180k, so the settlement represents about 1% of loan balances. It is less than the price of the title insurance that banks failed to get when they transferred the loans to the trust. It is a fraction of the cost of the legal expenses when foreclosures are challenged. It’s a great deal for the banks because no one is at any of the servicers going to jail for forgery and the banks have set the upper bound of the cost of riding roughshod over 300 years of real estate law--wow, if one of us forged and fabricated loan docs, we would face multiple felonies and jail time--what the @#%* !!.
>
> 2. That $26 billion is actually $5 billion of bank money and the rest is your money. The mortgage principal writedowns are guaranteed to come almost entirely from securitized loans, which means from investors, which in turn means taxpayers via Fannie and Freddie, pension funds, insurers, and 401 (k)s. Refis of performing loans also reduce income to those very same investors--here we go again, allegedly adverting demise or hardship by funding with our own money??
>
> 3. That $5 billion divided among the big banks wouldn’t even represent a significant quarterly hit. Freddie and Fannie putbacks to the major banks have been running at that level each quarter--message we send?? Its ok to break the law, to commit felonies, because we will only cause a small blip in your financials when fashioning a punitive remedy!
>
> 4. That $20 billion actually makes bank second liens sounder, so this deal is a stealth bailout that strengthens bank balance sheets at the expense of the broader public--ah @#%&, another bailout by use of creative accounting?
>
> 5. The proposed enforcement is a joke. The first layer of supervision is the banks reporting on themselves--little more than regulatory theater--giving the keys to the henhouse to the hungry fox?
>
> 6. The history on servicer consent decrees shows the servicers fail to comply. Why? Servicer records and systems are poor in the best of times and they don't adjust to handle additional volumes and challenges created by that higher volume of delinquencies. --so we are doing what different?
>
> 7. The cave-in Nevada and Arizona on the Countrywide settlement suit is a special gift for Bank of America, who is by far the worst offender in the chain of title disaster (since,according to sworn testimony of its own employee in Kemp v. Countrywide, Countrywide failed to comply with trust delivery requirements). This move proves that failing to comply with a consent degree has no consequences but will merely be rolled into a new consent degree which will also fail to be enforced. These cases also alleged HAMP violations as consumer fraud violations and could have gotten costly and emboldened other states to file similar suits not just against Countrywide but other servicers, so it was useful to the other banks as well--B of A is based let's see, ah, where Kamala Harris and Nancy Pelosi hail from??
>
> 8. If the new Federal task force were intended to be serious, this deal would have not have been settled. You never settle before investigating. It’s a bad idea to settle obvious, widespread wrongdoing on the cheap. You use the stuff that is easy to prove to gather information and secure cooperation on the stuff that is harder to prove. In Missouri and Nevada, the robosigning investigation led to criminal charges against agents of the servicers. But even though these companies were acting at the express direction and approval of the services, no individuals or entities higher up the food chain will face any sort of meaningful charges--its been theatre at our expense!!
>
> 9. There is plenty of evidence of widespread abuses that appear not to be on the attorney generals’ or media’s radar, such as servicer driven foreclosures and looting of investors’ funds via impermissible and inflated charges. While no serious probe was undertaken, even the limited or peripheral investigations show massive failures (60% of documents had errors in AGs/Fed’s pathetically small sample). Similarly, the US Trustee’s office found widespread evidence of significant servicer errors in bankruptcy-related filings, such as inflated and bogus fees, and even substantial, completely made up charges. Yet the services and banks will suffer no real consequences for these abuses.
>
> 10. A deal on robosiginging serves to cover up the much deeper chain of title problem. And don’t get too excited about the New York, Massachusetts, and Delaware MERS suits. They put pressure on banks to clean up this monstrous mess only if the AGs go through to trial and get tough penalties. The banks will want to settle their way out of that too. And even if these cases do go to trial and produce significant victories for the AGs, they still do not address the problem of failures to transfer notes correctly.
>
> 11. Don’t bet on a deus ex machina in terms of the new Federal foreclosure task force to improve this picture much. If you think Schneiderman, as a co-chairman who already has a full time day job in New York, is going to outfox a bunch of DC insiders who are part of the problem, I have a bridge I’d like to sell to you.
>
> 12. We’ll now have to listen to banks and their sycophant defenders declaring victory despite being wrong on the law and the facts. They will proceed to marginalize and write off criticisms of the servicing practices that hurt homeowners and investors and are devastating communities. But the problems will fester and the housing market will continue to suffer. Investors in mortgage-backed securities, who know that services have been screwing them for years, will be hung out to dry and will likely never return to a private MBS market, since the problems won’t ever be fixed. This settlement has not only revealed the residential mortgage market to be too big to fail, but puts it on long term, perhaps permanent, government life support.
>
Blogger Bob's Comment: Bad policy--the security should be re-appraised and financed at their current value and refinanced at current market interest for people still in their homes. People displaced from their homes, IF they have a legit argument and evidence to support that they were wrongfully foreclosed on, should be paid by the banks and or servicing companies for the cost of acquiring a similar home, their credit report purged of adverse references based on that foreclosure and allowed to collect all other reasonable damages resulting from the wrongful foreclosure. Use of fraudulent, forged and or fabricated documents by ANY financial institution, should not be rewarded by walk-away and laugher deals, but the managers of the offices under whose supervision the documents went out, should be prosecuted for the felonies their conduct represents.
.
> http://www.nakedcapitalism.com/2012/02/the-top-twelve-reasons-why-you-should-hate-the-mortgage-settlement.html
>
In a report carrier by another one of the major media outlets, it was suggested upwards of 85% of the nmortgage fraud in Harris' old stomping grounds were frauds committed by the lenders or their agents [http://www.nytimes.com/2012/02/16/business/california-audit-finds-broad-irregularities-in-foreclosures.html?_r=1]. Any deal which cuts off prosecution, like this in part does, seems to benefit people doing business in Harris' old stomping grounds?--hmmm---hope that was not an intended benefit. In sum, some of the other problems with the mortgage "settlement" deal include:
1. The Wall Street Journal is also reporting that the SEC is about to launch some securities litigation against major banks, but since the statute of limitations has already run out on securities filings [kinda like what Mike Ramos did for his buddies in San Bernardino County], this means the SEC may tag the banks for some of the very last deals before the subprime market tanked [the formula? Know your buds are breaking the law, but delay prosecution so most if not all of what they did can't be touched??]
2. With the mortgage settlement terms not yet released [funny how people claim credit in the media for something they can't be challenged on], but some details have been leaked:
a. For the top 5 servicers, $26 billion is claimed, but of that, roughly $17 billion is credits for principal modifications, which will come from mortgages owned by investors [not the mom and pop owners]. $3 billion is for refinances, and only $5 billion will be in the form of hard cash payments, the $1500 to $2000 per borrower foreclosed on between September 2008 and December 2011--like big deal, the crooks get away and the people that lost their home get some of their moving costs reimbursed--this is justice??--people who lost their homes from mortgage fraud from September 2008 to December 2011 are screwed twice!!
b. Banks will be required to modify second liens that sit behind firsts. So the banks will focus on borrowers where they do not have second lien exposure, and this also makes the settlement less helpful to struggling homeowners, since borrowers with both second and first liens default at much higher rates than those without second mortgages--so its a paper deal with no real teeth!!
Also per the Journal:
5. “It’s not new money. It’s all soft dollars to the banks,” said Paul Miller, a bank analyst at FBR Capital Markets [opps, another bailout funded by the money the banks won't have to pay back on the earlier bailout funds owed back to the government??].
>
> The Times is also subdued:
>
> Despite the deal's billions in earmarks, the aid will help a small portion of the millions of borrowers who are delinquent and facing foreclosure. The success could depend in part on how effectively the program is carried out because earlier efforts by Washington aimed at troubled borrowers helped few.
>
6. Schneiderman’s MERS suit survives, and he can add more banks as defendants. It isn’t clear what became of the Biden and Coakley MERS suits, but Biden sounded pretty adamant in past media presentations on preserving that. Why don't we have a MERS suit in California Ms. Harris?
7. Nevada’s and Arizona’s suits against Countrywide for violating its past consent decree on mortgage servicing has, in a new Orwellianism, been “folded into” the settlement effectively bailing out a bank for breaching the earlier agreement--so what will change to make Countrywide and its succecssor any more likely to follow the rules?
>
8. The five big players in the settlement have already set aside reserves sufficient for this deal, so they made the deal based on WHAT they were going to set aside--noting like handicapping the settlement negotiations!!
>
9. Here are the top twelve reasons why this deal according to the "Naked Capitalism" website stinks:
>
> 1. We’ve now set a price for forgeries and fabricating documents. It’s $2000 per loan. This is a rounding error compared to the chain of title problem these systematic practices were designed to circumvent. The cost is also trivial in comparison to the average loan, which is roughly $180k, so the settlement represents about 1% of loan balances. It is less than the price of the title insurance that banks failed to get when they transferred the loans to the trust. It is a fraction of the cost of the legal expenses when foreclosures are challenged. It’s a great deal for the banks because no one is at any of the servicers going to jail for forgery and the banks have set the upper bound of the cost of riding roughshod over 300 years of real estate law--wow, if one of us forged and fabricated loan docs, we would face multiple felonies and jail time--what the @#%* !!.
>
> 2. That $26 billion is actually $5 billion of bank money and the rest is your money. The mortgage principal writedowns are guaranteed to come almost entirely from securitized loans, which means from investors, which in turn means taxpayers via Fannie and Freddie, pension funds, insurers, and 401 (k)s. Refis of performing loans also reduce income to those very same investors--here we go again, allegedly adverting demise or hardship by funding with our own money??
>
> 3. That $5 billion divided among the big banks wouldn’t even represent a significant quarterly hit. Freddie and Fannie putbacks to the major banks have been running at that level each quarter--message we send?? Its ok to break the law, to commit felonies, because we will only cause a small blip in your financials when fashioning a punitive remedy!
>
> 4. That $20 billion actually makes bank second liens sounder, so this deal is a stealth bailout that strengthens bank balance sheets at the expense of the broader public--ah @#%&, another bailout by use of creative accounting?
>
> 5. The proposed enforcement is a joke. The first layer of supervision is the banks reporting on themselves--little more than regulatory theater--giving the keys to the henhouse to the hungry fox?
>
> 6. The history on servicer consent decrees shows the servicers fail to comply. Why? Servicer records and systems are poor in the best of times and they don't adjust to handle additional volumes and challenges created by that higher volume of delinquencies. --so we are doing what different?
>
> 7. The cave-in Nevada and Arizona on the Countrywide settlement suit is a special gift for Bank of America, who is by far the worst offender in the chain of title disaster (since,according to sworn testimony of its own employee in Kemp v. Countrywide, Countrywide failed to comply with trust delivery requirements). This move proves that failing to comply with a consent degree has no consequences but will merely be rolled into a new consent degree which will also fail to be enforced. These cases also alleged HAMP violations as consumer fraud violations and could have gotten costly and emboldened other states to file similar suits not just against Countrywide but other servicers, so it was useful to the other banks as well--B of A is based let's see, ah, where Kamala Harris and Nancy Pelosi hail from??
>
> 8. If the new Federal task force were intended to be serious, this deal would have not have been settled. You never settle before investigating. It’s a bad idea to settle obvious, widespread wrongdoing on the cheap. You use the stuff that is easy to prove to gather information and secure cooperation on the stuff that is harder to prove. In Missouri and Nevada, the robosigning investigation led to criminal charges against agents of the servicers. But even though these companies were acting at the express direction and approval of the services, no individuals or entities higher up the food chain will face any sort of meaningful charges--its been theatre at our expense!!
>
> 9. There is plenty of evidence of widespread abuses that appear not to be on the attorney generals’ or media’s radar, such as servicer driven foreclosures and looting of investors’ funds via impermissible and inflated charges. While no serious probe was undertaken, even the limited or peripheral investigations show massive failures (60% of documents had errors in AGs/Fed’s pathetically small sample). Similarly, the US Trustee’s office found widespread evidence of significant servicer errors in bankruptcy-related filings, such as inflated and bogus fees, and even substantial, completely made up charges. Yet the services and banks will suffer no real consequences for these abuses.
>
> 10. A deal on robosiginging serves to cover up the much deeper chain of title problem. And don’t get too excited about the New York, Massachusetts, and Delaware MERS suits. They put pressure on banks to clean up this monstrous mess only if the AGs go through to trial and get tough penalties. The banks will want to settle their way out of that too. And even if these cases do go to trial and produce significant victories for the AGs, they still do not address the problem of failures to transfer notes correctly.
>
> 11. Don’t bet on a deus ex machina in terms of the new Federal foreclosure task force to improve this picture much. If you think Schneiderman, as a co-chairman who already has a full time day job in New York, is going to outfox a bunch of DC insiders who are part of the problem, I have a bridge I’d like to sell to you.
>
> 12. We’ll now have to listen to banks and their sycophant defenders declaring victory despite being wrong on the law and the facts. They will proceed to marginalize and write off criticisms of the servicing practices that hurt homeowners and investors and are devastating communities. But the problems will fester and the housing market will continue to suffer. Investors in mortgage-backed securities, who know that services have been screwing them for years, will be hung out to dry and will likely never return to a private MBS market, since the problems won’t ever be fixed. This settlement has not only revealed the residential mortgage market to be too big to fail, but puts it on long term, perhaps permanent, government life support.
>
Blogger Bob's Comment: Bad policy--the security should be re-appraised and financed at their current value and refinanced at current market interest for people still in their homes. People displaced from their homes, IF they have a legit argument and evidence to support that they were wrongfully foreclosed on, should be paid by the banks and or servicing companies for the cost of acquiring a similar home, their credit report purged of adverse references based on that foreclosure and allowed to collect all other reasonable damages resulting from the wrongful foreclosure. Use of fraudulent, forged and or fabricated documents by ANY financial institution, should not be rewarded by walk-away and laugher deals, but the managers of the offices under whose supervision the documents went out, should be prosecuted for the felonies their conduct represents.
Friday, January 13, 2012
Computer Fraud and Abuse Act - A tool with Criminal & Civil Consequences
The federal Computer Fraud and Abuse Act provides criminal and civil penalties for wrongfully accessing a computer to do harmful things [maybe some of the hard drive damage done by some of Postmus' assessor buds triggers liability under this law??]
.
While the CFAA has been used by companies against departing company employees who improperly delete, alter or take information, the CFAA also can apply when companies access competitors' websites to for competitive benefit in violation of websites' terms of service, creating fictitious profiles to snoop about what people are doing online or wrongfully access people's paid online subscription services [wonder if this may include Mitzelfelt's accessing county records to generate a label list for his political mailers while a sitting county supervisor?].
.
CFAA §1030(g) provides for a civil remedy and requires a $5,000 loss. In addition to compensatory damages, the injured plaintiff can seek injunctive relief or other equitable relief. The statute appears short (losses within one year of the action's filing)
.
A "loss" counting toward the $5,000 threshold under CFAA is not stolen intellectual property, regardless of its value, nor are privacy invasions and/or personally identifiable information, regardless of how valuable. The "damage" must be a "cost"
to the victim like the costs to investigate, respond or remedy the damage the violation caused to the data or computer, any interruption of service, any fees a computer forensics firm charges to secure the violated computer or to investigate the damage caused to the computer and restore lost or damaged data.
.
A nice link and more detailed treatment of the statute and tactics is found at http://www.law.com/jsp/cc/PubArticleCC.jsp?id=1202537182389&rss=cc as is the email address of the attorney in Texas who wrote the infomative article.
.
Definitely a "thinking-out-of-the-box" tool.
.
While the CFAA has been used by companies against departing company employees who improperly delete, alter or take information, the CFAA also can apply when companies access competitors' websites to for competitive benefit in violation of websites' terms of service, creating fictitious profiles to snoop about what people are doing online or wrongfully access people's paid online subscription services [wonder if this may include Mitzelfelt's accessing county records to generate a label list for his political mailers while a sitting county supervisor?].
.
CFAA §1030(g) provides for a civil remedy and requires a $5,000 loss. In addition to compensatory damages, the injured plaintiff can seek injunctive relief or other equitable relief. The statute appears short (losses within one year of the action's filing)
.
A "loss" counting toward the $5,000 threshold under CFAA is not stolen intellectual property, regardless of its value, nor are privacy invasions and/or personally identifiable information, regardless of how valuable. The "damage" must be a "cost"
to the victim like the costs to investigate, respond or remedy the damage the violation caused to the data or computer, any interruption of service, any fees a computer forensics firm charges to secure the violated computer or to investigate the damage caused to the computer and restore lost or damaged data.
.
A nice link and more detailed treatment of the statute and tactics is found at http://www.law.com/jsp/cc/PubArticleCC.jsp?id=1202537182389&rss=cc as is the email address of the attorney in Texas who wrote the infomative article.
.
Definitely a "thinking-out-of-the-box" tool.
Thursday, January 5, 2012
INTERESTING LINK on PROSECUTORIAL MISCONDUCT
http://www.state.wv.us/wvsca/briefs/sept10/35271Appellant.pdf [Case was remanded to trial for retrial due to prosecutorial misconduct--not a bad brief]
Sunday, January 1, 2012
Candy Man is Being Chased??
To some of us that may remember, Brett Granlund's family was involved in the boxed candy business. The former State Assemblyman and current (apparently) political lobbying firm owner is being looked for to answer some grand jury questions? Do I recall Granlund being the man who Postmus talked to before coming into the District Attorney's office to plead guilty to all charges?
Press Censorship--it ain't just happening courtesy of the San Bernardino County Sun, Daily Press and Desert Dispatch!!
A great article on why we need something OTHER than our current print and studio TV/cable TV media. Check out what we were not told or if told, grossly under-reported!!!; For example, in a recent piece in the San Bernardino Sun and Desert Dispatch, it was curiously omitted that Nursery Products, LLC (who wants to dump sludge on a patch of private land in the middle of public lands to ostensibly create a type of compost for which there is no market)had been slapped with a cease and desist order by the U.S. Bureau of Land Management AFTER a recent Superior Court CEQA (California Environmental Quality Act) hearing for illegally tearing up public lands. All the articles "covered" (two different papers, two different ownerships) was that the local court had clear ahurdle for Nursery Products, ignoring the bigger problem; sad but ongoing local example of trying to advocate for a dumper!
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http://www.wanttoknow.info/mass_media/censored/press_censorship_11
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http://www.wanttoknow.info/mass_media/censored/press_censorship_11
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