Judge “Naughty” In Trouble with the Circuit Court

Dakine passed on this Denver Post article focusing on the Circuit Court’s decision to have Nacchio’s case tried by a different judge.

Nottingham wrongly, according to the appellate court, excluded an expert witness the defense wanted to present. He didn’t even let the defense make arguments on the matter when it came up during the trial.

His demeanor during the trial and sentencing was full of cutting comments and, at sentencing, he included a lecture on morality and greed.

Though the appellate judges weren’t specific, they did say that the trial transcript led them to conclude that "it would be unreasonably difficult to expect this judge to retry the case with a fresh mind."

While the appeals court said it wasn’t implying bias by sending the retrial to another judge, they sure were saying something. And it wasn’t complimentary.

While the article suggests there is no relation between Nacchio’s trial and Nottingham’s other problems–the revelation he was surfing porn in his chambers, soliciting prostitutes, and stealing handicapped spots from disabled people–I do find it rather interesting that the Court has hired an investigator to look into those ethical allegations.

A former FBI agent has been hired to investigate Colorado’s top federal judge who was recently linked to an investigation into a Denver-based prostitution ring.

Former FBI agent David Brundage is working for the 10th Circuit Court of Appeals in its investigation of Judge Edward Nottingham for alleged judicial misconduct in two cases, ABC News has learned.


When contacted by ABC News, Brundage declined to comment as did a spokesperson for the 10th Circuit Court.

It sure makes you wonder about the scope of the investigation for the Court. Does it go beyond stealing handicapped parking spots?

Update: spelling error fixed per brendanx.

103 replies
  1. Ishmael says:

    It’s going to be hard enough to get rid of all of the Fourthbranch Columnists in the Department of Justice – but guys like Nottingham, and Fuller in the Siegelman case, the only way to get rid of them is by impeachment and trial in the Senate.

    Parking in disabled spaces? This guy is a cartoon!

    • PetePierce says:

      Ismael if you’re in Canada, and have been there most of the time, you do an exemplary job following the antics of “justice” in the U.S.

      DOJ and the Federal Judiciary have been a circuis for a long time. As long as the ringmaster is Mukasey, you aren’t going to have a significant change. Fox is guarding hencoop for an administration that clearly believes they are beyond good and evil–particularly when other peoples’ money is hemorrhaging, family are dying, and the roofs over their head are disappearing.

      • Ishmael says:

        A lifelong Canadian, but a political junkie who loves all things American as well, which makes it all the more infuriating to see what is happening to your country. EW and other amazing bloggers like Horton and the commenters here make it easy to stay in the loop.

        • earlofhuntingdon says:

          I don’t know western Canada, but am partial to Toronto, no matter how sterile it’s considered, Montreal and Quebec City. Georgian Bay and Tobermory are something, too.

        • PetePierce says:

          That they do, but if it weren’t for the escalation of foreign affairs crises in the last ten years, I’d be doing good to find a tenth of the places in the news on the map.

          It’s admirable.

  2. emptywheel says:

    I have to admit, I do wonder whether someone who had something hanging over Nottingham was able to influence his rulings in the Nacchio case. That’s how Karl really gains a hold over people, I think.

    • PetePierce says:

      I have to admit, I do wonder whether someone who had something hanging over Nottingham was able to influence his rulings in the Nacchio case. That’s how Karl really gains a hold over people, I think.

      I don’t know the answer to that, but given that the government is now angling for an en banc rehearing with a motion to request a rarely granted 30 day extension to the 14 days always allowed via the Tenth Circuit F.R.A.P., I’d sure consider the politics in the equation of an en banc rehearing and new opinion from the Tenth Circuit could possibly be connected with protecting this administration from any exploration of their rancid, egregious Telcom dealings and paperwork that probably exists.

      AUSAs Motion for Extension of the 14 Day Rule to File En Banc Motion in Nacchio

  3. Bushie says:

    Gosh, this could be fun, a new way to clear the bench. Initiate private investigations of those of righty/tighty legal persuasion for conflict of interest and their many moral lapses.

    • PetePierce says:

      There aren’t enough independent investigators on the planet. Nottingham is very representative and in a minute I’ll show you how.

  4. looseheadprop says:

    You know what? I don’t like it when the Spitzer investigation stuff was leake dto the press and I don’t like it when the investigation into this judge’s ALLEGED prositution invovlement is leaked.

    Here’s how it’s SUPPOSED to work, the FBI and the presecutors do an investigation as quietly as possible so as not to damage the reputations of the “innocent accused”. Oh, and they don’t violate GJ secrecy either.

    If they actually find an indictable crime, they indict the sucker and put what they found in the indictment for all to see. Then they go to court and put up or shut up.

    THAT’s how it works. Not all this leak slaicous stuff to the press that you don’t have the guts to put in an indictment you actually have tosihn off on.

    • emptywheel says:

      Well, seeing as how the sources for the story are the two people who accused Nottingham of ethical problems, and seeing as how the investigation is being done by a FORMER FBI Agent (that is, it’s not a grand jury investigation), it’s not exactly parallel.

      • looseheadprop says:

        I know, but even so, this leaking to destroy someones reputation in a way that they can’t really defend themsleves,instead of charging and putting your proof to the test,is really getting my dander up.

        • emptywheel says:

          Are you complaining that the prostitution stuff was leaked, or that the allegations that he improperly parked in a handicapped spot (and threatened to have a women arrested for complaining about it) was leaked? Because the latter appears to be non-libelous first amendment statements from the woman involved, along with her non-libelous first amendment statements relating that an investigator interviewed her about it. The first amendment exists for precisely this reason–that when a person in power abuses that power, people can legitimately complain about it.

          • looseheadprop says:

            The woman in the parking lot is not a leaker, she’s a waitness and she has evry rigtht in the world to talk to the press. Mazaltoff to her.

            Nope, the investigator is unprofessional to leak.

            Same thing with the pornography. IF his pissed off wife wants to talk to the press, She should. But the professionals running the investigation sould not be leaking it. If they want to bring him up on ethics charges, or criminal charges, that’s theri way to expose this information and then they have to put up their proof.

            But character assisnantion by the investitgation, with no charges to back it up? I’m not diggin’ it.

            • emptywheel says:

              But that’s precisely my point! This:

              When contacted by ABC News, Brundage declined to comment as did a spokesperson for the 10th Circuit Court.

              Strongly suggests that the court and the investigator AREN’T leaking. The only sources in the story are the individuals involved.

              I’m not sure about the prostitution story–I need to go back and look at sources for that, though the sources include the prostitutes (which is why we know they called him naughty).

              But this story–along with the two other allegations–appear to be coming from the people who are publicly complaining about his behavior.

              • looseheadprop says:

                It may be my mistake, but the excerpt didn’t read that way to me. I’m not following this closely, so …..

                And I’m obviously still doing a bit of a slow burn about the Spitzer leaks. Lot’s of info by people “briefed on the case” , still no charges

                • emptywheel says:

                  Here’s the passage that makes it clear that this story is based on the disabled woman as a source.

                  Another case of judicial misconduct against Nottingham was filed by disabled Denver resident Jeanne Elliot.

                  Elliot says she confronted Nottingham last year after he parked his car in a handicapped space.

                  “He waved his judge’s badge and threatened to have me arrested by federal marshals,” Elliot told ABC News.

                  She said former FBI agent Brundage, who identified himself as a special investigator for the 10th Circuit Court, has interviewed her about the incident. “His interview skills were great,” said the one-time attorney.

            • PetePierce says:

              There is no doubt that lhp is absolutely right that criminal investigations/allegations for Spitzer, Judge Nottingham or anyone else should never be leaked. These are the ethical standards that a lot of people adhere to, but they are unfortunately different on the street.

              LHP asked recently if anyone could remember flagrant long term leaking by DOJ/FBI in her comment on a Spitzer thread at FDL, and I remember a few. One that comes to mind that leaked information as snitches were flipped and investigated over a period of 4-5 years was the investigation of a large city Mayor, Bill Campbell in the Northern District of Georgia. This included information from his business associates and co-workers, and a local affilliate news anchor who was one of his mistresses, who now reads the news in Chicago.

              Allegations against Federal Judges that make them look like characters in a Lisa Scottoline novel (former law clerk to Judge Sloviter in the Third Circuit) aren’t that unusual. I never heard of a judge waving a “badge” but what the hell. It would have made a great You Tube if only Denver attorney Jeanne Elliot had filmed Nottingham with her cell phone. I know of no impropriety for that incident’s publicity–whether he was prosecuted or not (he could be if the incident actualy happened).

              They “impropriety” seem to be misdemeanors if true.. I don’t konw or care about the nuances of the Denver state courts or municiple courts, I’ll leave that to people like Jerilyn Merritt who wade in them. I guess we could play the Mann act game, but we all know Feds don’t use Mann except when going after predators or the type of rings that force prostitution slavery/cruelty and may involve kidnapping as well. Most of these johns aren’t trying to bring women accross state lines–they’re just trying to bring women.

              For me, the allegations of dating the women of Denver Sugar/Denver Sugar, hitting the strip bars, or surfing porn wouldn’t be that unsual for a federal judge. Their sex lives for me are far less important than the way they play fast and loose with precedents they and their law clerks can’t find or don’t know, and particularly FRE.

              After all, I remember the flap right before the 911 Judicial Conference a few years ago where AOC Chief Leonides “Ralph Cramden” Mecham tried to flex his muscles (if you could find any on him) and was backed down by a number of judges including then Chief Judge Mary Schroeder and the flamboyant Alex Kozinsky. AOC decided to monitor web surfing in all federal chambers and court offices. Mecham alledged he had statistics that had a 6.5% porn surfing ratefrom federal chambers computers (law clerks, secretaries, judges and probably the ocassional strolling District/Circuit Executive or marshall, FBI agent who might be at a computer in chambers). This included District Court Executive Offices and Circuit Executive Offices, as well as probation offices. Maybe one person’s porn is another person’s aesthetics or vice-versa. Was that a line from Keats, Wordsworth or Shelley or Alfred Prufrock?

              I’m sure they had brains enough (well, maybe) to know sufing history could be easily retrieved 66 ways to Chrismas, they just didn’t think the AOC would log their keystrokes.

              I like the Ninth Circuit’s approach. Chief Judge (then) Schroeder shut down the pcs in all the Ninth Circuit and district court offices for about two weeks. Kozinsky threatened to have the FBI investigate Meacham so that he could be indicted. AOC food fights are always fun. Meacham who is widely known as a bully, backed down.

              There were threats from federal judges to investigate and have Meacham prosecuted for a violation of the EPCA (Electronic Communications Privacy Act of 1896).

              This was about the time when file sharing cases were beginning to be brought against individuals to force them into an average of $3500 settlements. I always wondered what happens when the teen age son or daughter of a federal judge or the judge themselves show up on a list for hitting the torrents/file shares a little too frequently.

              Plan for Web Monitoring in Courts Dropped

              Mr. Mecham said last week that two senior appeals court judges had misrepresented the matter in efforts to derail the program, referring to Judge Kozinski and to Judge Mary Schroeder, the chief judge of the Ninth Circuit, who had written letters opposing the monitoring.

              He also contended that Judge Kozinski was ”advocating his passionate views that judges are free, undetected, to download pornography and Napster music on government computers in federal court buildings on government time even though some of the downloading may constitute felonies.” He also said Judge Kozinski had shown ”great interest in keeping pornography available to judges,” especially of what Mr. Mecham called ”the more homosexual and exotic varieties.”

              Rebels in Black Robes Recoil At Surveillance of Computers

              Judge Kozinski’s Open Letter to Federal Judges

              Report of Judicial Conference on Automation and Technology 9/01

              Judge Alex Kozinski, a member of the Ninth Circuit appeals court, drafted and distributed an 18-page legal memorandum arguing that the monitoring was a violation of anti-wiretap statute.

              Judge Kozinski, widely known for his libertarian views, said the court employees who were disciplined, an estimated three dozen, could be entitled to monetary damages if they brought a lawsuit.

              The info on Nottingham seems to have come from an IRS investigation, similar to the one that ICE Alumnus Mike Garcia launched (found Spitzer and currently is debating violations and coming up very empty) but there may well have been a pissed off ex-Mrs. Ed Nottingham that led the tipsters to precipitate the warrants for phone logs or wiretapping, and the ex-Mrs. Nottingham could have called the media to gain leverage in her divorce settlement.

              If in fact Judge Nottingham was into “Denver Sugar”, then I suppose the only charges would be misdemeanors and they wouldn’t be hard cases to make unless the Feds wanted to eat one of their own and could show a technical Mann Act Violation since working girls do fly in and out of the Denver airport. This is very unlikely, and substantive discipline by the Tenth Circuit would be equally unlikely. A recent initiative by the Judicial Conference to tighten diciplinary procedures and consequences for federal judges flew like a lead baloon.

              Judge Nottingham’s alledged stupidity/arrogance in contacting prostitution services on his cell though is remarkable, given the current hypocrisy and moral posturing that is always superimposed on stories like this.

              I find it difficult to have sympathy for an ex-DOJster on the bench who abuses attorneys verbally with smart assed remarks when a review of his own trial conduct shows very minimal familiarity with FRE and FRCrP,or conduct where he intentionally ignores them. (Federal Rules of Evidence/Federal Rules of Criminal Procedure).

              Stealing a handicapped parking space from a women a physician designated to have one by threatening to have a marshall arrest a lawyer may win Nottingham the Schlameal of the year award, and there are laws against this in most states, if this in fact occurred. It’s pending investigation. The lawyer should have photographed Nottingham and his license plate/car with her cell phone. I would have like to. They were in a public place.

              The common pathway for the vast majority of 765+ or minus a few) federal trial and appelate judges–the ones with no federal litigation experience whatsoever or a whole other problem and they certainly are sprinkled throughout the 93 district courts and federal appellate circuits as well.

              What is far more serious and very systemic is that Nottingham foreclosed introduction of an expert witness that might have made Nacchio’s case. Nottingham was an AUSA from 1976-1978. Of course he should have known better, but like most DOJsters he came to the bench with an agenda. Nottingham frequently abuses the defense bar in his courtroom. It’s hard to tell from his spotty CV what he did for 9 years after leaving DOJ and Daddy H.W.Bush put him on the bench.

              I haven’t read the trial transcript. I don’t understand why Nottingham would not have allowed arguments on the inclusion of the expert witness. I cannot remember an appellate panel or an en banc remanding a case and removing a judge, but I’m sure it may have happened very rarely somewhere.

              Cutting, nasty, and threatening comments from the federal trial bench are in fact, very common. They are abusive, particularly so when the individual judges are Westlaw/Lexus challenged in crucial ways as are their very green law clerks.

              That is the serious problem in this current Nacchio case/appeal and it is systemic in the federal judiciary. Laziness and arrogance are prime components in this equation.

              No one should be surprised that the government has asked for a 30 day extension to motion for a en-banc rehearing of the 10th Circuit panel’s opinion. Extensions to file an en banc motion are rarely granted, but who knows. What is far more common is a Circuit taking a decision en banc on its own–it happens not infrequently in the polarized Ninth Circuit.

              I hope Nacchio’s attorneys kick ass, and I would love to see them put do some serious damage to the Bush Administration, which might be one strong motivation for an en banc hearing in order to screw with this opinion.

          • earlofhuntingdon says:

            I imagine the issue is not whether a private individual legitimately reveals facts known to him or her, but whether anyone revealed the existence or fruits of an investigation, if any, into an individual judge’s conduct.

            Sexual harassment concerns, for example, are investigated all the time. Only a portion them establish the fact or likelihood that harassment took place; normally, even those would not be made public by an investigating body (as opposed to those directly involved).

          • bmaz says:

            If I understand right, the other allegations were pretty much public rumors already too (isn’t his wife even maybe a source?). To the best I can see, the only thing really “leaked”, that was not floating around in one form or another already, was that there was an official investigation by the 10th. Again, i am just cobbling crap together from different places; but it kind of looks that way.

            Earl @18 – I dunno on a potential date for a retrial; I don’t think we can tell yet because the government may seek review of the recent decision, both en banc and, perhaps the Supremes. Looks hard for it to get in before August, and it ain’t gonna be in August because that is when the judges like to vacation and the Dem convention will be in town to boot. Was a month long trial; that is a lot of court time to have taken up by one case. Fall or later would be a decent bet; but I just don’t know.

            • emptywheel says:


              And the news of the investigation, again, seems to be coming from the two people who complained in the first place, not from the Court or the investigator.

            • earlofhuntingdon says:

              The publicity related to a retrial of Nacchio might be greater than the first time and won’t be as favorable to the GOP, a consideration that seems to weigh heavily with this DOJ, this administration and the GOP. They certainly wouldn’t want a trial going on during the Dem convention in Denver.

              Obviously, if there’s a good case that Nacchio traded on insider information, prosecute him. I guess I’m most worried about the abuse of prosecutorial discretion that has the DOJ using scarce tax dollars and abusing the criminal justice system by ignoring or hiding comparable GOP conduct.

    • bmaz says:

      True, but this isn’t a DOJ/FBI investigation; it is being run privately by the 10th Circuit judicial board. I agree that it should not have been leaked probably, but i have seen others similar to this that also were. I wouldn’t be surprised if Stern or another of Nacchio’s lawyers were the ones who let this out; and there are no secrecy requirements that I am aware of.

      • Ishmael says:

        I would think that the appropriate thing for a federal judge to do while this investigation is current would be to take leave with pay – every case he hears from now on until he is found guilty of judicial misconduct or exonnerated is going to be tainted.

        • bmaz says:

          Yeah, I dunno. All I have seen is extra-judicial stuff. He may be a perv or wildman; but I haven’t seen anything that impinges on his handling of cases other that that he is intemperate and works over attorneys. As I said a couple of days ago, that is, shall we say, not particularly unusual behavior out of federal judges. Here is the only conduct I have seen documented out of the Nacchio trial:

          U.S. District Chief Judge Edward W. Nottingham Jr. — who frequently humiliated lawyers in open court during this trial — was jumping on Jeffrey Speiser, attorney for former Qwest CEO Joe Nacchio.
          Speiser was fumbling in his effort to describe a court exhibit to a witness. Somehow, Speiser could not get the number right. Nottingham grew impatient.
          Nottingham: “Are we talking about 809?”
          Speiser: “Yes.”
          Nottingham: “Well, you said 809, the witness just said no, so you’re looking at something different.”
          Speiser: “I’m sorry, I was looking at the numbers upside down. (It’s) 608.”
          Nottingham: “At least it’s not 69.”
          The court fell oddly silent.

          Here was my earlier comment on that:

          Heh heh, “Federal Judge is pompous intemperate ass” is, um, shall we say, not exactly an unusual or new story. The ticky tack stuff in that story by reporter Lewis doesn’t even put Naughtyham in the big leagues of intemperate pompous ass federal judges. I have heard he was a bear in the Nacchio trial, but you’re going to need more than than a fleeting “69″ joke to make the case. A month long heated criminal trial is a war of sorts, it is the kind of setting where big boys and, occasionally, girls play; it is not for the meek. If a trial attorney heard that crack and did anything but chuckle and move on, they probably shouldn’t be in that courtroom. Now, that statement I just made may shock those with sensitive ears and conscience, and perhaps rightfully so; but from what I’ve seen, it is a fact.

          There was a Federal District Judge, same as Judge naughty, in Houston that flat out sexually molested a female court employee in the courthouse (chambers I think); he is still there. These types of investigations are CYA affairs for the Circuit and to give a little wake up call to the judge; usually nothing more.

      • earlofhuntingdon says:

        It doesn’t excuse the leak, but I wonder if the evidence to hand was overwhelming and they were afraid of this DOJ taking it nowhere, just as it has rewarded rather than investigated the questionable behavior of Judge Fuller, who presided over Don Siegelman’s trial in Alabama. Which bespeaks of similar politicization among a portion of the federal judiciary, not just the DOJ.

        Still wrong, as LHD says — it would piss off any lawyer or judge to have his or her alleged wrongful conduct publicized before any facts were proven — but explicable, sauce for the goose, so to speak.

        • bmaz says:

          I don’t think so. I think this is simply an internal personnel type of CYA by the Circuit. I have seen no evidence of any criminal conduct yet; quite frankly, I haven’t seen much evidence of judicial misconduct at all. I think they are taking appropriate steps to insure they don’t have sexual harassment issues now or down the line. I could easily be wrong, but from what I have seen so far, thats it.

          • earlofhuntingdon says:

            I was referring to it being wrong that any inquiry about this district court judge had been leaked to the press.

            I think you’re spot on: the 10th Cir. has a responsibility to investigate credible allegations against him. It is certainly on notice about warning signs of potential sexual harassment. I would say it also gently but publicly rebuked his conduct of the case, while taking no position on its merits.

            Equally interesting is whether the local USA will retry Nacchio. Hard to see how they could avoid it, given the brouhaha involved in the original trial. But it could be like riding a tiger for them. A lot’s come out challenging the bona fides of the USG spying game, and credibility of the DOJ and USA’s in general. Nacchio may not appear to a new jury as quite as much a heavy as he undoubtedly was earlier. But there are still lots of people still smarting in Denver as a consequence of that merger; not everyone’s moved on smoothly or without paying a considerable price. I haven’t a clue about the credibility of the insider trading claims.

      • PetePierce says:

        What worries me is the politics of an en banc opinion shutting down this opportunity to open up the government’s misconduct in wiretapping if the en banc motion by the government is granted.

        Correct me here , but the Tenth Circuit (which Circuit isn’t?–and the Ninth has a reputation for being a wild eyed liberal circuit but it is pretty evenly split right now actually)is very conservative, and I’m concerned that the could scotch the panel’s opinion by replacing it with an en banc opinion.

        • bmaz says:

          Yes, that would be our little sandbox out here, the 9th Circuit, that is by far the most liberal (still) of all circuits (and also the most reversed; heh go figure). By the way, Mary Schroeder was around my law school a lot while I was there and participated in the special federal courts seminar I was in for my writing/thesis requirement and her husband was my professor for secured transactions. My best friend in law school’s father was also a 9th Circuit judge (he’s now senior status) with Mary and through Christmas and other holiday parties and what not, I got to know Mary a fair bit for a while. She is absolutely brilliant and really way cool to boot.

          Back to the District Trial judges for a minute. There are a whole lot of em that are really tough on attorneys; if you are going to weed out on that basis, you are going to be missing a substantial portion of the total. Oddly enough, I have always found the cranky tough old farts to be the ones that actually had the cojones to make tough rulings; so I’m not sure I am down with the plan to weed those out.

          As to Nacchio, I think you, and for that matter just about everybody else, are putting way too much stock in a retrial as a vehicle for prying open and displaying the illegal wiretapping program violations. I don’t think it’s going to happen. cboldt read the actual decision and saw the clincher before I did, but now that I have, I think he is right. The remand order from the 10th Circuit appears to pretty much rain all over that parade. I always thought there was an arguable lack of relevance and probative value to the charges against Nacchio (is more germane to a pre-trial selective prosecution motion if anything, but the case isn’t going back to that phase as far as I can tell). Here is the crux of the operative part of the remand order in this regard:

          Mr. Nacchio also argues that the district court was wrong to prevent him from presenting certain classified information as evidence at trial. He claims that the evidence would have shown that he personally had reason to believe that Qwest’s economic prospects were much better than others realized. Thus, he says, this evidence should have been permitted both to show that he did not have material information and to negate scienter. We affirm the district court’s decision, because even if the classified information were presented and established what he said it would, it could not exonerate Mr. Nacchio as he claims.

          Essentially, Mr. Nacchio argues that undisclosed positive information can be used as a defense to a charge of trading on undisclosed negative information. We disagree. If an insider has material information that he cannot disclose because it is confidential or proprietary, then he must abstain from trading. That is the lesson of In re Cady, Roberts & Co., Exchange Act Release No. 6,668, 40 S.E.C. 907, 911 (1961), later applied in SEC v. Texas Gulf Sulphur Co., 401 F.2d 833, 848, 850 n.12 (2d Cir. 1968), and Chiarella v. United States, 445 U.S. 222, 226 -29 (1980). It is black-letter law that insiders must disclose their material information or else abstain.

          It is true that in cases like Texas Gulf Sulphur, insiders were trading in bullish positions ahead of the disclosure of the company’s proprietary discovery, and thus their trading correlated with the inside information, while here Mr. Nacchio argues that his possession of classified information neutralizes his possession of other inside information. However, the general rule applies. If an insider trades on the basis of his perception of the net effect of two bits of material undisclosed information, he has violated the law in two respects, not none.

          If you can’t get into a selective prosecution evidentiary hearing setting, and I don’t see that at this point, the wiretapping stuff just ain’t happening from what I see.

          • PetePierce says:

            I hadn’t read the opinion. It might have helped to do that *g*. It’s a pity of course that with lost emails, and joint House and Senate approval of immunity potentially looming (we’ll soon see) that their can’t be some vehicle to discover what went on with the Telcos and the administration.

            The Ninth is a huge interesting Circuit. Betty Fletcher’s son was appointed and under Orin Hatch’s (never litigated a second in a federal court room but talks as if he had) novel agreement with Betty Fletcher she retired to avoid Hatch’s nepotism interpretation.

            This is not relevant to anything particular, but Judge Stephen Reinhardt’s third wife wife, Ramona Ripston is with ACLU. There need to be more federal defenders/ACLU lawyers married to circuit appeals court judges to balance out the huge feed of judges to both trial and appellate courts from the DOJ.

          • PetePierce says:

            It isn’t often that a remand takes the retrial away from the trial court judge if ever. There should be more of that done, but there’s usually huge deference that the trial court judge was within their discretion no matter what the standard of review. We’ve seen times when opinions have been sent back to the trial court more than once however.

            U.S. v. Nacchio

            Brief Points on 10th Circuit Reversal in Nacchio

            McJoan and Kagro over at KOS missed the point that despite their wishful thinking, the remand will be unlikely the discovery process providing a window to open up the dyanmics of the warrantless wiretapping fiasco by the government.

    • gannonguckert says:

      I haven’t done a full review of the article cited, largely because it didn’t say much that isn’t known around Denver. Hence, I say, I’m not sure what you are asserting is leaked. Check out the site below; go below the narrative at the top of the linked page, to the articles and already-filed linked documents.


  5. Ishmael says:

    On reading the link EW provided, the article notes that Nottingham’s wife ratted him out to the FBI about surfing for porn on his govt computer. Perhaps there was another source for this information? Wasn’t there another case where someone had hacked into judiciary computers? It sure would be helpful in certain cases to have access to a draft decision on certain matters ahead of time.

    • PetePierce says:

      Wasn’t there another case where someone had hacked into judiciary computers?

      I don’t know of any hacking into federal judiciary computers although someone might know of a case, but I do remember well the game of chicken where the federal judiciary backed down their bullying Administrative Office of Court Administrator Leonides Ralph (”Kramden”) Mecham who began following the keystrokes of all AOC offices including judicial chambers, administrative offices, and probation offices, and I linked to some of it here. There was the allegation by AOC that 6.5% of the downoads were illegal file shares or porn. There have been about 20,000 cases in federal district court now where the RIAA (Recording Industry Association of America) have filed civil suits successfully against individuals to get judgements–the average has been $3500.

      In one case in Kentucky, the downloader was a teenybopper whose father was deaf. The case was filed against the deaf daddy because he owned the computers.

      I don’t know what happens when a federal judge’s household is identified as the perp for downloads. The 6.5% rate would indicate that the judges may be illegally downoading porn, movies, software, or music from the comfort of home.

      The case probably gets lost fast, since the RIAA needs cooperation of these judges to squeeze individuals. Downloaders have also been prosecuted federally, but this has been rare and the amount of downloading has been in the terabyte neighborhood–call it uber file sharing. This situation was highlighted on the old Tech TV Screen Savers show, and I think Leo Laporte is not only podcasting but on the radio in Canada though he broadcasts from San Fran.

      • Ishmael says:

        That is what I was remembering, thanks! As for the discussion about judges, what you describe as common on the US Federal Circuits surprises me – I did a federal clerkship in Canada, and while judges are human of course, you just don’t see this kind of crap among the judiciary in Canada – there are a few extreme cases, but for the most part, the biggest problem I have with our judges is that they are drawn disproportionately from big firms and Crown Prosecutors and are small “c” conservatives for the most part. And this is in a system where there is no Senate confirmation of judges, it is really all done in the backrooms – not a good thing, but we do seem to have avoided a politicized judiciary in Canada notwithstanding.

  6. Mary says:

    OT – Bush finally gets someone for the slot Fran Townsend left (she, of the girly gushy goodbye) and it’s a familiar face. Ken Waistein.

    And also OT, TPM has up info from Lichtblau’s book (jiminy – why expect public servants and journalists to ever tell you anything important in the context of their jobs – apparently both slots are a time portal of info awaiting a book deal), about how Harman supported the Administration’s position that NYT not print the wiretap story.

    But she said that the president’s public confirmation of the program’s existence after the Times story had allowed her to consult with “constitutional experts, the former general counsel of the CIA, some of the excellent staff on the House Intelligence Committee.” She continued: “then I learned, although I’m a trained lawyer, about some of the serious legal issues that I have been raising ever since.”

    • looseheadprop says:

      OT – Bush finally gets someone for the slot Fran Townsend left (she, of the girly gushy goodbye) and it’s a familiar face. Ken Waistein.

      Now THAT’s interesting. I didn’t see that coming. I thought Ken would be stying in DOJ after the cahnge in Admin. I guess he either has fallen out of favor with his prfessional rabbis, or they don’t think they have the power to cover him (or he has lost faith in their abilty to cover him)

      This implies htat Wainstein is certain to head into the private sector if when there is a Dem in the WH (so he needs the line on his resume and the connnects in private industry he will build in this job) or he will get kicked upstairs in a McCain presidency (so, he needs this line on his resume)

      Up until today, I would have bet money that wainstein was still part of the “permanent” DOJ crowd (some of whom are in the private sector at the moment, but yearning to return)

      Mary, you handed me a big surprise

      • earlofhuntingdon says:

        My hope is that there are lots of good people who’ve left the DOJ and other departments who are anxious to come back and help rebuild, in effect, the federal bureaucracy. Congress may well have to lend a hand, but individual department heads would need to take the lead.

        • looseheadprop says:

          There are people, who ask you quietly, and somewhat shyly, at cocktail parties if you have ever, done what they do as a guilty pleasure– gotten out a pad of paper and done a buget and figured out how you can deal with your expenses so as to be able to withstand the pay cut to go back to the gov’t.

          Then there are the people who call you up and offer to come to your house and sit at your kitchen table and help you draw up such a buget.

          Yep, lot’s of folks are thinking about coming back so they can bring back the institutional memory of what their former agencies are SUPPOSED to be be like. People hired in the last 7=8 years wouldn’t know anything was wrong, because they don’t know what it’s supposed be like.

          How can you miss something you’ve never experieineced?

          Jim Comey gave a wonderful speech at the NYC Harvard Club a couple weeks ago about instilling an organizational culture, how you createe it, buld it and keep it alive.
          How a good, helathy ethical culture helps he people working in it to make good choice, but how those same people will most often make bad choices in an unhealthy unethical organizational culture.

          So,I guess, oldtimers who remeber the good culture will be needed to bring it back and lead by example

          • earlofhuntingdon says:

            I know a colleague just below SES level who’s still “inside”. S/he’s endured multiple reorganizations, an empty desk and phone for nearly a year, bosses twice his/her age who know nothing about the department arbitrarily overriding decisions, having to ask permission for something as simple as agreeing to one day extension to a deadline, ad nauseum.

            Still there, still cleared, but a lot of friends had to leave, replaced by GOP’ers who’d helped in Florida, had joined the Federalist Society, had the right extra-curriculars, etc., and many seemingly too young for the work.

            That’s why I suggested Congress may need to step in with revisions to the rules governing non-political hires. Rebuilding could be exhausting, time consuming, expensive and litigious, but we can’t afford not to do it.

          • readerOfTeaLeaves says:

            LHP, thanks for this:

            [Comey said] “…instilling an organizational culture, how you create it, buld it and keep it alive. How a good, helathy ethical culture helps he people working in it to make good choices…”

            Organizational cultures seems extremely important, especially after FISA, surveillance, and Abu Gharib.

            Too bad Wm Ockham doesn’t seem to be around — there’s a good article in a recent Scientific American: ‘Do All Companies Have to be Evil?’ that supports Comey’s claims about the importance of a healthy organization. Social psychs compared Enron (under Lay and Skilling) with Google (under Brin and Page’s leadership).
            The research strongly supports Comey’s contention that organizational health is a critical factor in helping people make ethical judgments. This also has implications for the Circuit Court system, one should think.

            But to relocate this intriguing question to a slightly different context (still related to US government), note the military ‘leadership; shown by David Petraeus**, posted today at UPI’s Iraq Oil Report:

            March 18 (UPI) — Gen. David Petraeus is calling on “large Western corporations” to invest in Iraq’s energy sector as Iraq looks outside to boost oil, gas and power production.

            Petraeus, who as commander of Multi-National Force-Iraq overseas all coalition troops there, said Prime Minister Nouri al-Maliki asked him to convey the message to companies.


            Reading this, one wonders what other retired military commanders think about Petraeus’s post-Cheney-visit willingness to shill for ‘investments’ from oil multinationals? One wonders how activities like this might affect military culture.

            Here’s hoping that Comey and others can soon return to DoJ and restore it to better health.

            ** Same guy that Fallon is said to have called a ‘chickensh*t ass-kisser’. Interesting that Fallon ‘resigned’ last week, and within ten days Petraeus is ‘calling on oil companies to invest in Iraq’. Wonder what Comey would make of it?

            • bmaz says:

              Has Patraeus properly registered as a foreign interest lobbyist? Gee, I dunno, this seems a little unusual and inappropriate for the Man Known As Petraeus.

              • watercarrier4diogenes says:

                ESPN has an article up on who got snubbed by the Selection Committee. You’ll be unsurprised, I’m sure, at who’s #1 on that list, bmaz.

              • readerOfTeaLeaves says:

                Probably not registered as a lobbyist; Dick was just over there and probably rewrote Petraeus’ job description to include ‘lobbyist’ so there’s no need to register.

                Yeah, Petraeus totally busted my BullshitMeter this time. Mine only goes up to 8000 psi; I think Petraeus’ bullshit rates about 10,000 psi.

                Wonder what VoteVets and the retired military think of that little remark? Wonder what Fallon thinks of it?
                I’m sure guys like Nottington wouldn’t see any problem with it.

  7. watercarrier4diogenes says:

    If the local USA does proceed, what would a reasonable timeline be? If there is anything to the wiretapping connections, could revelation, or even discussion of that now be too ‘timely’ for the Rethugs vis a vis the Nov elections?

    Somewhat OT and definitely “Present Company EXCEPTED”, it appears there may be a bit of Ken $tarr style inve$tigating and John A$$croft ca$hing in going on in the NYC Dem legal community:

    Spitzer’s mouthpiece has his own secrets to hide

    • looseheadprop says:

      For the retrial? Some judges will schedule for the first available opeing in their schedule that is big enough. Some judges will want to enjoy a little motion practice frat so they can familiarize themsleves with the case.

  8. earlofhuntingdon says:

    Excuse the OT, but Brian Ross on ABC just said that only Clinton had failed to release her tax returns. Last I heard, McCain had not, either, but Ross said he had.

  9. Mary says:

    21 – Well, TPM handed it lhp, but I’ll take credit. *g*

    Wainstein was either counsel or COS for Mueller at FBI through a lot of what they did and didn’t do. And he has twisted like pretzel on wiretaps and how he represented items to Congress. I know you think a lot of Kelly and they were partners, but I’d be just real happy to see an end for the DOJ career of the guy who helped serve as the legal dead end for the very few FBI torture complaints that came in and who had to have known all about thousands of NSL issues, even as he and the rest of the Ashcroft crew were doing the hard sell on the Patriot Act.

    And not being a big Comey fan as you know, I have to say that some of that speech, “how those same people will most often make bad choices in an unhealthy unethical organizational culture” sounds like a nice big cya. As a prosecutor, did he make it a habit to offer byes to people who did bad things if they could blame it on being part of an unhealthy, unethical organization? To me it sounds a lot like the excuses for everyone at DOJ so happily working for years for a torture adminstration and shrugging off their direct roles, by failure to ever publically object to anything, in that long list that Hugh put together.

    I don’t recall, when Arar’s case hit, Comey saying that Larry Thompson ought to bear the consequences, at a minimum the civil consequences, of his part in the conspiracy to ship Arar to Syria. Instead I recall him playing CYA and filing a state secrets affidavit in that case. I don’t recall him saying that Haynes should bear the consequences for basically engaging in sniper attacks on the JAG corps and taking our military to disgrace and institutionalizing detainee abuse and depravity and their coverups and directing the military to ignore the Geneva Conventions. Instead, I recall him joining with Goldsmith and sending out a nifty epistle on how Haynes should have a lifetime appointment to the Fourth Circuit because he did such a nice job with paperwork and he didn’t really like torture as much as some other people did.

    He wakes up every day and knows that he did far worse than Nifong and that there was a Pentgaon report on the SO Car brig abuses issued a month before he stood up at the Padilla press conf and said everything was fine and dandy and the Padilla detentions/interrogations, the DOJ had conveniently failed to tell anyone, anywhere, to preserve detainee abuse evidence despite a cart full of cases that required that kind of response and he allowed it and in his Padilla investigation would have known all about the waterboarding of Zubaydah and KSM and all the unreliable info from Z and that Z was crazy – all when he gave that press conf.

    He wakes up every day and knows that there are specific victims of specific crimes – and their families, that he has worked hard to keep from ever having justice – and that there are lies upon lies upon lies that he helped “sell” and that have resulted in untold damage. He’s not the worst – he’s one of the best. And that’s what is so awful. He gave the leadership – and it was leadership to appease, overlook, protect your friends in DOJ no matter what they do, advance political interests over all else, and make sure the American public can NEVER look to DOJ for the truth if there is Executive Branch crime. Just another disinformation press conference, another “no charges filed” detainee beaten or frozen or otherwise tortured to death, another child with a father disappeared – or even the child disappeared (whatever did happen to KSMs children – certainly no one wanted any pictures out circulating while they were still just 6 and 8, did they?), some more evidence destroyed, and a few more letters to the President, telling him how wonderful he is as Thompson goes to Pepsico, Haynes to Chevron, Comey to Lockheed, etc. etc.

  10. Mary says:

    34 – “That’s why I suggested Congress may need to step in with revisions to the rules governing non-political hires. Rebuilding could be exhausting, time consuming, expensive and litigious, but we can’t afford not to do it.”

    But how do they do it without all kinds of opening of doors that should stay shut? I don’t see any good, workable way to get there, but if there is one, it would be great.

    • earlofhuntingdon says:

      There’s the rub. Like a constitutional convention, changing the civil service legislation could lead to more abuse than Bush has already created.

      I don’t know what the answer is. Certainly, Obama or Clinton should make management talent a high priority in their senior nominees. Cheney chained the federal bureaucracy to the back of a pick up truck and dragged it round Foggy Bottom.

    • bmaz says:

      This is why I was whining like a wounded coyote last summer about initiating impeachment proceedings against freaking Gonzales before he idly walked back to the hole he came from scott free. Do that and throw all the Goodling, Sampson etc. stuff in the hamper with him and you not only get a vehicle for inquiry right into Rove, Miers, Addington and on up the totem pole of excrement; but you might well filet open a basis for bouncing a bunch of zombie druid Regent Federalist clones in the career ranks of the DOJ for being illegally hired in the first place. I don’t really know if that would work or not, but there is no hope of bouncing established career Goop-pods without laying some kind of foundation. I don’t care what they accomplish from here on out, I honestly believe that Pelosi, Hoyer and Emmanuel have knowingly, intentionally and egregiously violated the letter of their oath and duty to office to such an extent that it is nearly traitorous by blithely and unblinkingly insisting that “impeachment is off the table in all circumstances”. It may not rise to a capital crime, but it ought to; it is hard to imagine how their acts have not contributed to the sever and grievous injury to the morals and fabric of American society.

      • Minnesotachuck says:

        honestly believe that Pelosi, Hoyer and Emmanuel have knowingly, intentionally and egregiously violated the letter of their oath and duty to office to such an extent that it is nearly traitorous by blithely and unblinkingly insisting that “impeachment is off the table in all circumstances”.

        Amen, bmaz! I’ve been saying this to anyone who’d listen (and more who didn’t or wouldn’t) ever since she “took impeachment off the table” in May, 2006.

      • dcgaffer says:

        this will probably be EPU’d, nevertheless….

        “….I don’t really know if that would work or not, but there is no hope of bouncing established career Goop-pods without laying some kind of foundation….”

        Bmaz, let me tell you how to clean out the gooper pod people.

        You make them work.

        You see, the political cadres will shuffle their opponents off to empty desk and no work. To someone who cares about the Department’s mission, that is like death. But these folks don’t care about the mission. They wished to destroy the organization, or at least remake in their image.

        So you make them work. You make them work on areas they find politically abhorrent. You make them take cases and fight battles, in court, against their most strongly held beliefs. If their work is substandard, you make them stay late and do it again. You never let up on the pressure and you make them do their damn job.

        Do it that way, and I guarantee you’ll clear em out like a scythe reaps wheat.

  11. MadDog says:

    OT – CREW in a “reply brief in support of its motion to show cause why a number of White House officials should not be held in contempt in CREW v. EOP” again defines CIO (Chief Idiot Officer) Theresa Payton as an Idiot (pdf), perhaps even a contemptuous Idiot.

    • MadDog says:

      While reading more of the documents related to the CREW v. EOP lawsuit, I revisited some of the Oversight Committee documents they referenced.

      In particular, the Sources for Supplemental Information has some really interesting material as it relates to the “declaration” of CIO (Chief Idiot Officer) Theresa Payton.

      One of these interesting “tidbits” is that the White House Office of Administration (OA) used a product called “Mail Attender” from a company called Sherpa Software.

      A description from Sherpa’s website on the Mail Attender product describes its capabilities as:

      PST Administration

      Locate all PST files (network and desktop)
      – Report on PST files and their location
      Access and manage content within desktop and network PST files
      – Export information out of PST Files
      – Enforce corporate policies within PST file and mailboxes files concurrently

      As well as this “Content Administration” set of capabilities:

      – Manage mailbox and PST data based upon actions such as delete, move, export, copy, forward, replace, and change status
      – Customizable rule criteria includes: keywords, age, size, name, date, type, status, and wildcards
      Powerful searching of message subject, body and attachments

      So the point that CREW is hammering that the OA, and in particular, Chief Idiot Officer Theresa Payton are making statements to the court that are on their face, contradictory.

      The usage of this “Mail Attender” product would define, log, and report the existence of all PSTs, and therefore, the non-existence of PSTs too!

      Chief Idiot Officer Theresa Payton and the White House’s position (including Miss Clueless herself, Dana “Pig Missile” Perino) that they don’t know whether email is missing or not yet, is simply fallacious.

      CREW is right to call for contempt of court penalties.

  12. Staar says:

    watercarrier @ 19, thanks for that raw story/Spitzer link…interesting.

    I especially liked this tidbit:

    He’s the same investigator who dismissed as not “sufficiently credible” the testimony of a decorated Navy Captain who was part of a secret data mining operation that uncovered evidence of 9/11 hijackers in the U.S. more than a year before the attacks.emphasis mine.

    ok. back to lurking.

  13. JohnLopresti says:

    Glad to hear the Sherpa news; may have time to read the crew filing tomorrow. I thought the null set might catch the erasure motif, or the record of filesize change. There was a surprisingly thoughtful commentary on Petraeus yesterday on freshAir, especially about his PhD and innovative view of his responsibilities, only heard a few minutes of it, though found difficult to shut the radio off, as the Globe reporter kept saying promising things, some of which seemed to fly. On Pelosi table comment, there was a fear of her as a different kind of leader at the time of the shift of dominant party in that Chamber; and she is a party loyalist with realist bent; I think her softpedal approach has fostered a lot of work committees have done, though there were 6 preceding years to try to cover in this sole 2-year span of the 110th congress.

    • MadDog says:

      Glad to hear the Sherpa news…

      Don’t spend too much effort on Sherpa’s Mail Attender, because Chief Idiot Officer Theresa Payton says that OA has purchased Documentum from EMC to be their “official” enterprise content management system.

      • bmaz says:

        Are you telling me that the one fucking thing in the world that these asswipes did NOT chat and bend the law and rules on is a freaking software licensing agreement? You know, the the thing that every office in the world violates? Did I read that right? Geneva Conventions, Constitution, 4th Amendment, FISA, War Crimes, PRA, obstruction, perjury, IIPA, and a cast of a thousand others, no problem blasting past criminal culpability on those; but they lost a boatload of critical email central to everything because they just could violate a freaking software certificate?

        • MadDog says:

          Having just finished “The Informant” by the NYT’s Kurt Eichenwald which documented the massive worldwide price-fixing schemes run by Archer Daniel Midland (ADM) (as well as your garden variety kickback peccadillos which netted the “Informant” himself who worked as a division President at ADM about 9 million dollars, and when finally brought to justice, 9 years in prison), I’m quite confident that no hanky-panky could ever occur at the White House.

          Confident, I say. Abso-fookin’-lutely confident. Aren’t you?

          • bmaz says:

            Man, I think I did misread that; I thought it said they didn’t use the program that would have worked because they hadn’t purchased the documentation (certificate). I am a dope with bad eyes. Now that I have enlarged the text size (MadDaog, you gots to get one of these Mac Airs, you just make a finger spreading motion on the trackpad and everything gets incrementally bigger) I see that it didn’t say that at all. So what is “Documentum”, did they ever use it, would it work, what’s the deal? By the way ADM, the oh so warm and fuzzy sponsor of PBS and kindly old Paul Harvey, are very bad dudes, criminals in fact, that rape, pillage and plunder everything in their path. Very bad.

            • MadDog says:

              Documentum is a high-end software package that is an “enterprise content management system”.

              Per EMC’s website:

              Documentum Family
              A comprehensive, unified content management platform

              Manage all types of content across the enterprise within a common information infrastructure.

              Basically, Documentum has got about a zillion different components one can purchase, but I’m based on what I’ve read, the OA is at least planning to use the email archiving and respository components as the mechanism for satisfying the PRA.

              It will allow them to capture all email, centrally store it and make it searchable.

              • bmaz says:

                Will that be in this decade? Is this high fallutin program so complex that it takes years to figure out how to purchase the correct component package and then install?

                • MadDog says:

                  In Chief Idiot Officer Theresa Payton’s written statement to the Oversight Committee hearing, she said this:

                  We conducted a technology pilot in late 2007 to confirm that the technology will meet EOP requirements and we believe that the deployment of the Documentum™ system will meet the EOP’s records management and archiving needs for the foreseeable future and will address many, if not all, of the alleged concerns raised about the current archiving process.

                  In another document from the hearing, the NARA folks documented this:

                  Ms Payton also provided us with a brief status of the development of the new system to collect, store, and transfer electronic messages of the EOP. The system is being developed in Documentum, and is scheduled for a “minipilot” in November, 2007. When we asked about the new system’s ability to ingest the vast numbers of emails stored in PST files, she and Will Reynolds indicated that they believed the system could ingest the files rapidly, but it was not clear that the ingestion would be completed before transition.

                  So I’m guessing that “slow-roll” is still the operative WH strategy.

                  And with that, I’d better head off to count some sheep or call in “sick” tomorrow. *g*

            • MadDog says:

              By the way ADM, the oh so warm and fuzzy sponsor of PBS and kindly old Paul Harvey, are very bad dudes, criminals in fact, that rape, pillage and plunder everything in their path. Very bad.

              “The Informant” was hard to put down. I remember the MSM reporting on ADM, but not like this. ADM knew what they were doing…and loved it.

          • bmaz says:

            And if you liked the ADM story, read on up about their kissing kousins of food krime, Tyson Foods. But grill up some BBQd yardbird first, because you won’t be wanting to eat any chicken afterwards.

    • Minnesotachuck says:

      If instead of “taking it off the table” she’d said something to the effect:

      “Impeachment was intended by the Founders as a last-resort tool of accountability and should never be used lightly. However, if there are actions that show indications that they may approach the Constitutional criteria of “crimes and misdemeanors”, we will not hesitate to conduct a thorough and balanced investigation and, if the results so indicate, take whatever legal and Constitutional measures are warranted.”

      If the Democratic House leadership had taken a position such as the above, I doubt that the Bush-Cheney cabal would be emboldened enough to continue with their program of pillaging the Department of Justice, as they are doing as we read and write on this blog.

  14. kirk murphy says:

    There was a Federal District Judge, same as Judge naughty, in Houston that flat out sexually molested a female court employee in the courthouse (chambers I think); he is still there. These types of investigations are CYA affairs for the Circuit and to give a little wake up call to the judge; usually nothing more.

    Uh, pardon me, but WTF?

    How has corrupt, grossly unethical, and criminal behavior become so normative in the culture of Federal judges (and attorneys who practice before them) that this sexual assailant is still seated on the bench?

    bmaz, this is not aimed at you – for all I know you’ve stood on your head to have the jurist investigated…and when that failed, you sought to bring it to media attention without success.

    Yet the fact the jurist is still on the bench, depsite the open secret of their sexual assault(s) in the Federal Courthouse, speaks eloquently about a debased and depraved set of cultural norms in the atttorneys and Federal jurists who know of the sexual assailant – and do precisely nothing.

    What has gone so rancid in them and the professinal ethics in which they swim?

    With fewere than 2,000 Federal jurists (inclusive of magistrates and immigration judges) on the bench, it’s not like the number is so great as to surpass monitoring.

    What does it say about the normative values among attorneys and Federal Judges that overtly criminal and violent behavior is not front-page news in lay and legal press – even in Texas?

    Why should any citizen trust the results of a Federal legal culture so debased and corrupt as to wink at criminal sexual assault?

    I don’t have anything against jurists (or Federal judges) – my uncle was appointed to a (California state) judgeship in the early 70’s – and was offered a Federal judicial appointment under Reagan. (He declined it due to health/pension concerns). He was – and is – a decent and honorable man.

    I’ve never met lhp or Christy, yet I have the highest confidence in their ethics. bmaz, I’ve had no direct contact with you, yet from what I read here you too are honorable and ethical.

    I’m asking these questions here not for rhetorical purposes, but to learn. Based on Judge naughty, and the corporate-funded think tanks bribing Federal judges with “seminars” at opulent resorts (pushing anti-regulation premises for matters which come before Federal Courts), I’ve already started a post for FDL entitled “Our Corrupt Federal Judiciary: Bug or Feature?” The sexual assailant on the Federal Bench in Houston is simply the “human interest” wrapper to personalize an otherwise abstract matter.

    But I still don’t understand how the Federal judicial culture has become so overtly corrupt. Nor do I understand how the corruption has become so widespread that the attorneys practicing before the sexual assailant are – through collective silence – willing to be complicit in keeping the sexual assailant on the bench.

    If anyone can help me understand this, I’d be most grateful. I’m in the Bay Area, and I would be happy to meet in strictest confidence with anyone who may wish to discuss such matters in private. I’m also available at my kirkmurphy gmail addy ( or kmurphy riseup net) for direct or suitably redirected/anonymyzed emails.

    My inference is that lancing the boil of corruption in the culture of our Federal judiciary is beyond the reach of the ethical attorneys practicing in the Federal system. I’m no surgeon, but even shrinks know how to lance a boil.

    The more I know, the more I can do – so I’l be grateful for any understanding I gain from comments here, iinfo sent to me, or direct discussions. Thanks!

    • bmaz says:

      Hey Kirk, that was in Houston I think. I had no personal knowledge involvement or anything, i simply read about it and cataloged it in my convoluted pea brain for future reference. I bet i can find you some decent info on it though. Check back in a few minutes. By the way, it is certainly heading the wrong direction to some extent, but I don’t know that I would go quite as far as you indicate on the Federal judiciary. For instance, the guy in Denver, Nottingham, I had never heard of him that I am aware of before the Nacchio trial, Not sure if I even knew his name then; but I did chat with some folks associated with that trial and heard, among other non-judge related scuttlebutt, that the judge was a real bear. But, again, that is not that unusual. And the stuff that has been reported on him looks salacious, and makes him a giant cad, but it so far doesn’t seem germane to his judicial function. We will see in time about Judge Naughty. I’ll be back in a few, hopefully with info.

  15. Jkat says:

    hey ..easy there .. don’t get goin’ on “ethical lawyers” .. you’ll ruin a lot of otherwise perfectly good jokes… lol

  16. kirk murphy says:

    Thanks, bmaz – and point taken on Judge naughty.

    My broader perception of a culture of corruption arises from:

    (1) Federal nominees’ (inc Supremes) refusal to answer nomination queries (or simply dissembling) – and then ruling in exactly the fashion they ostensibly could not discuss at nomination hearings. If I mislead Congress in a hearing, I’m up shit creek. If I’m a nominee, I’m “Judge”.

    For a citizen , the winking at the false professons of objectivity is simply colluion with lying for personal/professional advancement.

    Looks like corrution for us layfolk – attorneys (legislators) rolling over for other atttorneys lying for career advancement.

    (2) Scalia’s (and other Supremes/Federal Court Judges’ ?) refusal to recuse from cases touching on subjects about which they have expressed public opinions.

    When I evaluated transplant candidates, if I were to say “let’s not waste kidneys on poor folks”, and then found psych reasons to exclude potential recpients of limited means, even if I theoretically found individaul basises (bases?) for each decision, the bias is obvious – and the Med Board would have my license so fast it would draw blood.

    Scalia/Roberts rule with obvious biases exactly in accordance with the ir pre-Supremes’ actions – yet we lay people are told this isn’t unethical.

    Hmm – ruling in precisely the manner that most helps their uber-connected constituents before they were Supremes.

    Sure looks corrupt to me.

    (3) Federalist Society judges – how does adherence to Federalist dogma differ from adherence to Communist Party ideology on the Federal Bench? OK – results are obviously different, but unswerving adherence to extra-Constitutional basis for jurisprudence is identical.

    Both Communist Federal judges and Federalist Federal judges are inimical to Constitutionally based decisions? u
    SUre looks corrupt to a layperson.

    (4) Corporate-funded think tanks buying lavish vacations (wrapped up as “seminars”) for Federal judges who then rule favorably for corporations using the concepts “learned” on the lavish vacations.

    Sure looks corrupt to a layperson.

    _ _ _

    I don’t want our Fedearl judiciary to be corrupt, so I really wnat to be wrong about the above. WRT to #3, perhpas the same argument could be made regarding Thurgood Marshall (and I don’t think he’s corrupt), so maybe that one’s not operative.

    But in the other matters, I honestly don’t see how any layperson could listen to learned discussions of why the behavior is ethical, just because a bunch of attorneys who write the canons of ethics tell us it is.

    Once again bmaz, I’m sure not sugggesting you are part of the problem I discern – and I’m not trying to make you the foil for my concenrs.

    I guess my reason for abusing the privilege of commenting here at EW’s is to try and understand this as much as I can before I go writing about it – so I’ll appreciate and read any comments about why what I describe above is not inherently corrupt.

    (and apologies to EW for riding my hobby horse all over the end of this thread)

    • bmaz says:

      Hey, no worries. We are pretty easy going and open here; and I’m a big boy, I can take care of myself if you do happen to offend me; which I don’t anticipate. Heh. Also, I can’t be part of the problem you are focused on, I am not a judge (and nobody is going to appoint me one either). The things I have done as a lawyer I was paid to do and ethically required to do on behalf of my client; and I did so with little to no compunction whatsoever.

    • PetePierce says:

      (1) Federal nominees’ (inc Supremes) refusal to answer nomination queries (or simply dissembling) – and then ruling in exactly the fashion they ostensibly could not discuss at nomination hearings. If I mislead Congress in a hearing, I’m up shit creek. If I’m a nominee, I’m “Judge”.

      There has always been a dance as to answering questions, but Alito and Roberts took this to a new level. There are scores of law reviews written on the failure of your Senator Diane Feinstein aka DiFi from your area to ask the questions and to demand answers. DiFi did the same thing when she and Schumner were the only Democrats to support Mike Mukasey.

      As a result, you are stuck with Alito and Roberts for most of your adult life. Not a thing can be done about it. There was a nice piece on one aspect of their legacy in the NYT magazine Sunday, and you should read it.

      Once in a while the’ll surprise you, but not often. Steve Bright won a much needed 7-2 opinion Snyder v. Louisiana (06-10119)and Alito wrote it,and cited a clear error standard that was violated, with Thomas joining him. It followed the lines of Batson. It involved strking black jurors for bad reasons.

      As to collusion, you’re correct. Many deals on appellate judges and votes on the S.Ct. justices are based on behind the scenes deals.

      These justices don’t see their public speeches anywhere near the way you perceive your psychiatric evaulation of liver/renal transplant candidates.

      No one reviews the decisions by the Supremes as to whether they recuse themselves. Your recourse is DiFI and Barbie Boxer and your reps. You need more and better Senators and represenatives, because until they change this, you’re stuck. The Judicial Conference will lobby mightily against this as will AOC.

      Transplantation in the US is hardly democratic, and inconsistent througout the US at best, and certainly does and has favored wealthy patients, and it will continue to be flawed until the medical profession develops better criteria.

      The medical literature is replete with classic studies of this, including this one in NEJM:

      Geographic Favoritism in Liver Transplantation — Unfortunate or Unfair?

      The constituencey that Roberts, Alito, and Scalia are ruling for has a name. It’s called the Federalist Society and that has been precisely the objective of Bush and the tremendous lobbying effort that got them confirmed by Bush and in Scalia’s case by Reagan.

      You remember Reagan–your former governor in California.

      Bush has appointed approximately 240
      Federalist Society members to the bench.

      The demographic distribution has been grim. Why the Dems Lack Supreme Court Nominees

      As to the perks judges get at their seminars, their are plenty of people agitating to curb them, but they are defended vigorously by the people who decide the rules, the judges at individual circuits, and the Judicial Conference until you can get your Congress and Senate people to do anything meaningful.

  17. kirk murphy says:

    merde – preview, preview, preview:

    Both Communist Federal judges and Federalist Federal judges are inimical to Constitutionally based decisions? u

    Should have been:

    Both Communist Federal judges and Federalist Federal judges are inimical to Constitutionally based decisions – yet the former would never be confirmed (or would be impeached), while the latter are called Judge.

    Both come to the Bench with pre-determined ideologies revolving about vast wealth.

    And the Federalists predictably rule in favor of vast wealth – the same wealth that underwirte the Federalist ideology.

    Judicial decisions purchased by vast wealth’s recruitment/training programs?

    Sure looks corrupt to a layperson.

  18. bmaz says:

    Here you go. Judge Samuel Kent. he was in the satellite court in Galveston, but was reassigned for a short time to Houston. Far as I know, he is back on the bench judging away. You can find a lot more stuff by Googling his name. Here is an Above The Law piece.

    Ah, here you go. From The Galveston Daily News:

    McBroom accused Kent of pushing up her bra, putting his mouth on her breast and shoving her head toward his crotch, friends, her mother and her attorney, Rusty Hardin, have confirmed.

    The Fifth Circuit Court of Appeals, of which the Southern District of Texas is a part, reprimanded Kent in September, just after The Daily News reported the existence of Mc-Broom’s complaint.

    And, from the same article, when he returned to the bench on January 11, 2008, this was the report:

    U.S. District Judge Samuel B. Kent was upbeat and unfailingly polite Thursday when he returned to the Galveston bench.

    Kent had served a four-month suspension starting in September after his case manager filed a sexual-harassment complaint in May, accusing Kent of touching her in ways she didn’t want. Through his attorney, Kent has denied the charges


  19. kirk murphy says:

    The things I have done as a lawyer I was paid to do and ethically required to do on behalf of my client; and I did so with little to no compunction whatsoever.

    I totally respect and honor the role of advocacy in our adversarial legal system. I want the same in any attoreny who represents me or any client or cause I hold dear.

    Good on ya, bmaz.

    • bmaz says:

      Heh heh, you might find this interesting as a bit of trivia if you are going to read up on the Kent case. Judge Kent is represented by Dick DeGuerin, an extremely well known and fantastic criminal defense trial lawyer from Houston. The accuser, Cathy McBroom, is represented by Rusty Hardin, and extremely well known and fantastic trial lawyer from Houston. I mean these are two of the very best going anywhere; top notch. Rusty and Dick are also very good friends. And no, I don’t mean that to infer that anything goofy or slick is, or will be, going on here; if anything, they would fight even harder to one up each other. They are both straight up and hard nosed players. That is one hell of a lot of first rate legal firepower for that curious little case though; could be interesting down the road and might well be worth watching. I would hazard a real good guess that they both know Judge Kent pretty well too.

  20. BlueStateRedHead says:

    more for cluserf**k

    In hopes of bolstering the Michigan plan, two Clinton allies, Gov. Jon S. Corzine of New Jersey and Gov. Edward G. Rendell of Pennsylvania, released a letter saying they had lined up 10 guarantors who would pledge up to $12 million to cover the estimated costs of rerunning the [primary].


  21. BlueStateRedHead says:

    Judging judges, a ques.

    is parking/prostitute using (alleged) in C0 worse than withholding transcripts (proven) in AL (Siegelman judge) ?

    IANAL, but methinks no transcript, no appeal, no appeal, defendants’ right to trial denied.

    • PetePierce says:

      Actually much has been made of Fuller’s witholding transcripts and that’s just not what happened. I know Scott Horton does an interesting, and thorough job most of the time and he might have implied this to some people but the facts just aren’t there.

      What Fuller did do though is to take his sweet time when the Eleventh Circuit Court of appeals told him they wanted him to elaborate on his order refusing to grant an appeals bond (totally separate issue from the appeal of the case in chief).

      Here’s what happened. The Court reporter died of cancer. Although the judge has some responsibility to ensure a timely transcript, this was not really held up in light of the circumstances. AOC is responsible (Administrative Office of Courts) for getting a new court reporter to finish the transcript. Fuller did not obstruct that. Often these court reporters have other cases to transcribe, and in this situation, the court reporter had ongoing work to finish. Communication is done with a motion but since she wasn’t an attorney, she simply wrote Chief Judge Lanier Anderson at the Eleventh Circuit. Anderson gave her until the end of March to finish the transcript, and she finished it early.

      However, what you’re missing is that the two attorneys for Siegelmen had not even filed their brief. I explained this in detail over at the Lake a few times.

      A panel will decide the appeal in chief. The briefing schedule for it does not start until Siegelman’s attorneys file their opening brief. That is the appeal series of briefs (the government will reply and the defense will reply to that brief) that requires the transcript and Siegelman’s attorneys have not even finished their brief on the case in chief. The court reporter has finished the transcript so the transcript has hardly held up the appeal in chief.

      What was held up was the opinion from twojudges at the Eleventh Circuit, Judge Stanley Marcus and Judge Black who have Siegelman’s release in their hands. This is not tied to a trial transcript, but rather is based on the argument by the defense and the government briefing a well known case when you ask for an appeal bond in the Eleventh Circuit. That case is called United States v. Giancola, 754 F.2d 898 (11th Cir. 1985).

      Besides arguing that your client is not a threat to the community, and a flight risk, you have to argue within the framework of Giancola as previously interpreted by the Eleventh Circuit that the appeal of your client raises a substantial question. The Eleventh Circuit has defined the substantial question standard (which is always in dispute when you move for an appeal bond and this is interpreted differently in different Circuit Courts or appeal in the U.S. (Welcome to the United States of inconsistent America) and appellate law.

      In United States v. Giancola, 754 F.2d 898 (11th Cir. 1985), the Eleventh Circuit noted that a frivolous question might well be one not decided by controlling precedent. defined “substantial question” as “a ‘close’ question or one that very well could be decided the other way.” Id. It also noted that what will constitute “substantial” should be determined on a case-by-case basis.

      In other words, they pretty much can decide if the appeal raises a substantial question any way they want to.

      I’m hopeful that since Black and Marcus twice asked Fuller to enlarge, clarify and justify his opinion he will be free on bond. The decision is pending. So Fuller himself held up release on bond if it is to be granted. Now the Eleventh Circuit has been holding it up because they are taking their own sweet time with the opinion.

      The transcript is really not nor has not held up Siegelman’s appeal of the bigger eye on the prize, the case in chief.

      I hope that clears this up–I have to fire out.

    • PetePierce says:

      I should add because it does matter when you are appealing in different Circuits, and this case is in the Eleventh since Siegelman is in Alabama and the Eleventh is Florida, Georgia and Alabama.

      Here’s the skinny as to appeals in the Eleventh. Appeals in every circuit are according to rules called FRAPS. The FRAPS are tweaked locally by each circuit’s judges and revised. FRAPS=Federal Rules of Appellate Procedure. When you file an appeal in the Eleventh Circuit, you aren’t guaranteed you will have an oral argument or that your case will be published. To have precedent for future cases, the case has to be published in the Federal Reporter published by West company now owned by Thompson. Trial court opinions when published (usually as memorandum opinions, are published in Federal Supplement or “Fed Supp.”

      When the brief is filed with the Eleventh Circuit it is screened by someone on a staff of several lawyers. These lawyers are not law clerks, and the panel of judges will in most cases never see the brief at that point. If they determine the issue is substantial enough for oral argument, after screening, they will pass the briefs onto the law clerk and judges.
      The law clerks are usually top grads from a law school, who often have ambitions for a prestigious and well paying job with a law firm, or moving up in DOJ as an attorney there, or an academic career.

      They indeed write most of the opinions that are released from the Courts of Appeals and the Supreme Court and the judges meet with them, argue ideas, facts, and case precedents, and then they tweak those opinions. Sometimes the judges revise them on their pcs, etc. and write parts of them.

      About 17.5% of all appeals that reach the Eleventh Circuit make the cut for oral argument. Those cases will have an opinion that is most often ordered to be published in the Federal Reporter and has precedent for citation in argument of future cases and interpretation by the panels of judges for opinions.

      Siegelman’s case has a good chance of making said cut, because he is governor, and because of the issues involved.

      Sadly, because of the glut caused by drug cases in all the Circuits, a couple things have come to pass. Most cases appealed, despite the fact that everyone pays the several hundred dollar fee, are decided and you never know what the thinking was that went into the opinion. Why? Because the ones that don’t make the cut for oral argument are usually decided with a 2-3 sentence so-called per curiam opinion where the lower court is affirmed. This is very unfortunate, and it’s unfair. But that’s the way it is due to the thousands of drug cases that clog the docket. In America we incarcerate low level drug users, instead of having meaningful rehabilitation. The DOJ’s drug rehab program is a huge joke–and often people sociopathically get into it via recommendations to cut their time not because they really have a legitimate drug history. The BOP personnel who run them or social workers and psychologists who are not particularly talented or well trained–that’s why they work for DOJ/BOP. They are nothing like the talent pool of attorneys who work for DOJ. Those are two different planets. DOJ lawyers know this, but they don’t really care or do anything about it. So we have Prison Nation in America where 1/100 people are incarcerated and warehoused like widgets on a shelf to rot for long periods of time. In the old system, people could get cuts in their sentences via parole. This changed when Bill Clinton became President. Prisoners now serve 85% of their federal sentence with no cuts available except through the over crowded and crappy drug programs, and most prisoners don’t get into them, and some of them lie to get into them. Recently, a former mayor in a big city who was in federal prison was removed from his half way house after newspapers exposed that his lawyers argued he had no drug history whatsoever, but he scooted into the drug rehab program to cut his sentence by about eight months. An embarassed DOJ (BOP is an agency totally controllled by DOJ in theory but not in fact) jerked the mayor out of the halfway house and back to his Florida prison to serve the remainder of his term.

      The prisons are over crowded. Medicine in general sucks all accross the board in state prisons and federal prisons. It takes no one with a medical IQ a tenth the thermometer to pick up most charts of significantly medically ill people in the Federal Prison system and find that care is markedly substandard–equipment, treatment modalities, qualifications and clinical ability of the physicians and you name it.

      So while Christy Hardin Smith and LHP the LHP are bright accomplished expierienced lawyers, who were nurtured/educated into a milieu of high legal standards and practice, the medical care in the system they sent people to was then, and is now totally horrendous. It’s nothing like the medical care you hope you receive in the private practice system. Medications that are used or significantly limited, and often times the formulary is not sophisticated and hardly cutting edge. If and when you train medically and review their charts for a legal or other proceding, you will learn this quickly.

      It’s nothing like the medical care Christy hopes people in West Virgina receive or she expects to receive for her family. People die frequently who did not need to die, morbidity is high, and care is piss poor. If someone has lymphoma and needs specific treatement at the local tertiary university medical system, even though it is a few miles away they will not be released to receive it and DOJ will argue vigorously to make sure that they do not. DOJ will argue that they can get equal care at Bum Fuck medical facility administered by the DOJ/BOP and that is pure bullshit.

      Physicians do not aspire to become doctors in any prison system–no way never and on on given day.

  22. looseheadprop says:

    That Raw Strory piece is written be a conspiracy theorist who has been running around for years trying to blame 9-11 on Pat Fitzgerald and claimeing that Deiter Snell covered it up for Pat.

    I read the word salad this calls his, ahem, book. It blamed Pat for not stopping/preenting events that happened when he was still in college and law school and could not possibly have known about, nor had the power or skill to do anything about at the time. It’s tone was nothing short of hysterical and it’s logic, pretty non existant.

    The “author” of this word salad claimed to have read the trial transcripts of the major terroism trials held in SDNY and then advanced theories tat directly contradicted the testimony at those trials. Testimony that the juries found credible.

    So, you see in Lance’s world, EVERYBODY is lying and only HE knows the truth. I’m not a shrink, but I think there is a name for that state of mind. Mental health professionals should feel free to jump in.

    • Minnesotachuck says:

      I just finished reading Philip Shenon’s Commission a couple of days ago when I read that Raw Story piece, and the only reaction it prompted was WTF? I’m not a “mental health professional’, but the word “whacko” comes to mind.

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