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

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.")

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]

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?

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.
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The following Formal Opinion was written by
the Ethics Committee of the Colorado Bar Association
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[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.
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Syllabus
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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. 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.

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
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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??].
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> The Times is also subdued:
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> 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.
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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?
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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!!
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9. Here are the top twelve reasons why this deal according to the "Naked Capitalism" website stinks:
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> 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 @#%* !!.
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> 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??
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> 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!
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> 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?
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> 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?
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> 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?
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> 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??
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> 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!!
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> 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.
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> 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.
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> 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.
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> 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.
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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.