Happy Halloween

Or, for those in the Sullivan & Cromwell basement, just another Saturday in the office.

The Hudson Goon

Steve the program manager from Hudson who was in charge of the Cadwalder project is a true piece of work--while he was training us he was condescending, arrogant and few times during the privilege log review when he found himself lost he lashed out at us by saying: "you are the ones who will be doing this, not me." His level of nastiness was so apparent than even the associates at Cadwalder looked at each other and kept sending texts to each other in apparent disbelief.

His arrogance was met with utter silence.

Another Decision on Expert Testimony on Identification Evidence

In People v Abney and Allen (2009 NY Slip Op 07668 10/27/09) the Court of Appeals considered two cases in which the defense was denied the right to introduce expert testimony on identification evidence. The Court applied the test it previously employed in People v Young (7 NY3d 40 [2006]) for determining whether such a ruling is error: was there was evidence which corroborated the identification evidence.

The Young standard in which a defendant’s right to present evidence is conditioned on the court’s perception of the strength of the People’s case appears to be in conflict with the holding of the United States Supreme Court in Holmes v South Carolina (547 U.S. 319 [2006]), that he right of a defendant to have a meaningful opportunity to present a complete defense cannot be conditioned of the perceived strength of a prosecutor's case.

But, as Monroe County Assistant Public Defender Jim Eckert points out, there is some good language in the decision which should be cited by counsel in other contexts. Specifically, in discussing whether the error of excluding the expert testimony in Abney was harmless the Court wrote that

"Finally, we do not consider the trial judge's error in Abney to have been harmless. While defendant's muddled alibi evidence was no doubt unhelpful to his cause with the jury, it is not overwhelmingly inculpatory either. And, of course, it is possible that defendant would not have pursued an alibi defense in the first place if Dr. Fulero had testified. " (emphasis supplied).

Thus, the Court recognized that the defendant’s strategy could have been altered by the court’s erroneous ruling and that the burden cannot be on the defendant to establish all of these consequences. In an analogous situation, the United States Supreme Court has held that whether a defendant’s confession was illegally admitted at trial and the defendant then testifies in his own defense, that testimony cannot be used at the re-trial, because it cannot be determined if the decision to testify was caused by the illegal admission of the confession. Harrison v United States, 392 US 219, 224-225 (1968). Quoting from the Court of Appeals decision in De Cicco v Schweizer (221 NY 431, 438 [1917]), the Court wrote that

It is, of course, difficult to unravel the many considerations that might have led the petitioner to take the witness stand at his former trial. But, having illegally placed his confessions before the jury, the Government can hardly demand a demonstration by the petitioner that he would not have testified as he did if his inadmissible confessions had not been used. ‘The springs of conduct are subtle and varied,’ Mr. Justice Cardozo once observed. ‘One who meddles with them must not insist upon too nice a measure of proof that the spring which he released was effective to the exclusion of all others.’ [citation omitted] Having ‘released the spring’ by using the petitioner's unlawfully obtained confessions against him, the Government must show that its illegal action did not induce his testimony.

Harrison v United States, 392 US 219, 224-225 (1968).

To read Justice Cardozo is to be humbled.

New York DMV Defines History Alcohol Abuse

I am happy to practice in little Ithaca , NY for many reasons. One that clearly stands out in my mind today is the fact that the DMV here is not too busy. In fact I would say the Tompkins County DMV here is fast, friendly, and easy.

You want to see busy, go to the Philadelphia DMV or better yet, go to any South Florida DMV. I can remember one time standing out in line to get a reservation for my daughter to take a road test. Can you imagine a line 40 people long, wrapping around a Coral Springs strip shopping mall, and you are waiting in this line with a number (like in a deli) in 90 degree humidity? Not fun or funny.

Be thankful for our DMV.

That said, what does the NY DMV classify as a history of alcohol abuse?

When most of us think "history" we think either many incidents in a long term (10 years) or a few incidents within a short term (5 years). The DMV does not allow any conditional driving privileges (or participation in the DDP) if a person has 2 alcohol related convictions within 5 years and has taken the DDP because of the the first alcohol related conviction (DWAI or DWI).

The NY DMV also states that any driving record (abstract) with 2 or more alcohol related charges (could be a DWAI or DWI) within 10 years and boom, you now have a history of alcohol abuse. This is further defined in Part 136.1 (b) (3) of the Regulation of the Commissioner of Motor Vehicles.

So to get your driver's license back after having 2 incidents within this 10 year time frame you MUST fill out and file DMV form DS-449, and submit evidence of either rehab (following an OASAS eval and follow up recommendations) OR a clean bill of health (ie. after a drug / alcohol eval no further treatment is necessary. Form DS- 449 is called "Alcohol Abuse Rehab. Program Summary."

Law Offices of Lawrence Newman

Lawrence (Larry) Newman, D.C., Esq.

Doctor of Chiropractic
Attorney and Counselor at Law

504 North Aurora Street
Ithaca, NY 14850

607-229-5184

http://www.ithacadwi.com

The Return of "Lily"?

"I would just like to let you and your readers know that Hudson is trying to staff a long term project at Hughes Hubbard and Reed again. I don't know if this is for the Vioxx cases that didn't settle or a new case of the same magnitude. I also don't know if they will be reopening the offsite plantation. The Eggman was canned a while back, but Lily is still around."

For those newbies fresh out of law school who haven't had the privilege of running across Lily, you are in for a real treat:

"For those who don't know, 'Lily' is not her actual name. Her real name rhymes with Lily and I will use this psuedonym to protect the guilty.

Anyone at HH knows who she is. She is a grotesque 300 lbs, and her physical deformities are utterly beyond description. Her best friend is a bag of cheetos, and her fat, mangled fingers are often coated with their orange powder. She drives her slaves (this is the slang for 'managing' temps or 'contract attorneys') offsite in a basement in New Jersey. I believe there may be windows, but I have not been there myself to verify this fact.

Lily does maintain a presence in the New York office, rather unfortunately, and we see her rear her ugly head from time to time. Probably just taking orders from some non-equity partner in charge of the firm's various doc review projects. The sole purpose of this woman's existence is to squeeze every last drop of efficiency out of each slave, and to make their miserable lives as horrible as possible, all for $35hour."

Welcome to 2009! Same Lily, much lower rate!

http://temporaryattorney.blogspot.com/2007/04/lily-hughes-hubbard-horror.html

"Let Them Eat Cake" - The Great CLE Scam

"Every day, I get at least one email from the New York City Bar, almost always offering some expensive for-pay CLE program. Yesterday, I received an email titled Better hurry up last chance to register for CLE class! This reminds me of an Indian tout on the street trying to hook you to go into their shop to spend some dough. So much for the illustrious image of the Bar with their grand office on West 44th Street with plaques of all their famous members (100% from the big law firms of course).

I have accepted at this point that the New York Bar will never do a thing to help my career and that they will give a license to anyone who will pay their unconstitutional annual fees. But they could spare us these desperate messages for CLE money. And with it, their usual veiled threats about what happens if you don't pay for CLE and you will be disbarred.

Howard Miller, the new big firm head of the California Bar, said that his contribution will be to force more pro bono work on California lawyers. California has 225,000 lawyers and has very high bar testing and annual fees. So they throw another burden on the funeral pyre of all their thousands of unemployed lawyers. While Miller says, "Let eat cake". Since he is living off their millions in fees."

Christine Anderson, Whistleblower of the 1st Department Discipline

NY Attorney Gets Her Day in Court Over Firing by Disciplinary Committee
By Daniel Wise,New York Law Journal

In low-key opening statements to a Southern District jury yesterday, the two sides presented starkly different portrayals of the reason an attorney with the Appellate Division, First Department, disciplinary committee was fired in 2007.
John Lovett, the lawyer for the fired lawyer, Christine C. Anderson, told the six-member jury that his client had been fired in retaliation for exercising her First Amendment rights in complaining to court officials that well-connected attorneys received preferential treatment and that the committee had "whitewashed" certain cases.

But Assistant Attorney General Wesley E. Bauman insisted the firing had nothing to do with Ms. Anderson's exercise of her free speech rights but instead was a result of her "unprofessional conduct and refusal to have any contact" with her supervisor.
The one thing both sides agreed on was that Ms. Anderson and Sherry K. Cohen, who became the committee's first deputy counsel in 2003, had an exceptionally tense and difficult relationship.

In his half-hour opening, Mr. Lovett, of Lovett & Bellantoni in Hawthorne, N.Y., described Ms. Anderson, now 64, as having a good relationship with her immediate supervisor from the time she began work at the committee in 2001 until August 2005.
Although Ms. Cohen became deputy counsel in spring 2003, Mr. Lovett said that Ms. Anderson had the same immediate supervisor until Ms. Cohen demanded that Ms. Anderson "sanitize" the factual findings in one of her cases where she had concluded that an attorney had lied to committee personnel.

Mr. Lovett said that a finding that an attorney under investigation had lied to the committee was "a giant no-no."

In August 2005, he said, Ms. Cohen told Ms. Anderson that she wanted her to drop her conclusion that the lawyer, only identified as R.N., had been untruthful.
When Ms. Anderson objected to taking out the finding that the lawyer had made "misrepresentations" as a move that "would dictate the outcome of the investigation," Mr. Lovett said, Ms. Cohen took over the file and rewrote the recommendation herself. Both Ms. Cohen and Ms. Anderson agreed that the attorney should be privately admonished.

After taking control of the R.N. case, Mr. Lovett said, Ms. Cohen took over as Ms. Anderson's immediate supervisor and "began micromanaging and harassing her."
Mr. Lovett said that in subsequent conversations with Thomas J. Cahill, then the committee's chief counsel, and other court officials, Ms. Anderson complained that certain lawyers got "the soft touch, another form of corruption" at the Departmental Disciplinary Committee, where "who you know and what your connections are" influenced investigations.

Mr. Lovett said that Ms. Anderson had complained to Mr. Cahill that prosecutors and lawyers with connections to members of the committee's policy committee or with lawyers who had previously worked for the committee had received preferential treatment.

'Detail-Oriented' Supervision
Mr. Bauman laid out a different timeline, saying that Ms. Cohen took over as Ms. Anderson's direct supervisor shortly after becoming deputy counsel in 2003, and brought a more "detail-oriented" style of supervision. She became directly involved with staff attorneys' cases to provide them "with her 15 years of experience and best judgment," Mr. Bauman said during his 15-minute opening.
Mr. Bauman said Ms. Anderson "resented" the more-detailed approach, but "there were many opportunities to repair the supervisory relationship."

Instead, he said, Ms. Anderson demanded that she have no direct contact with Ms. Cohen. Confronted with Ms. Anderson's refusal "to repair the continuing hostility," Mr. Bauman said, the "court reluctantly fired" Ms. Anderson in June 2007.
Mr. Lovett countered that the reason Ms. Anderson demanded that she have no direct contact with Ms. Cohen was that she was afraid of the deputy clerk, primarily as a result of an incident in August 2005.

He said that was when Ms. Cohen had entered Ms. Anderson's office to speak to her, but Ms. Anderson said she had to leave to meet a complainant in a conference room.
When Ms. Anderson sought to leave the office, Mr. Lovett said, Ms. Cohen leaned against the door to prevent the lawyer from exiting. As Ms. Anderson reached for the door knob, Ms. Cohen grabbed her hand and scratched her, he said.
Mr. Bauman referred to the incident briefly in his own opening, saying, "It was not an assault."

Former Westchester County Court Judge Rory J. Bellantoni is also representing Ms. Anderson.

In addition to the court system, Mr. Bauman and Assistant Attorney General Lee Alderstein are representing three individual defendants: the First Department's deputy clerk, David Spokony, Mr. Cahill and Ms. Cohen. All three were at the defense table yesterday.

John McConnell, the clerk of the First Department, and Roy L. Reardon, the chairman of the 64-member disciplinary committee, attended yesterday's session as spectators.
The trial, which is expected to last about one week, is being presided over by Southern District Judge Shira A. Scheindlin.

Judge Scheindlin denied the defendants' motion for summary judgment in April. She ruled that Ms. Anderson could proceed with her $10 million claim for compensatory and punitive damages on the ground that the committee had retaliated against her for expressing her view that it had whitewashed as many as nine cases.
In her opinion, Judge Scheindlin noted that a "host" of e-mails had made evident Ms. Anderson's "hostility" toward Ms. Cohen and her "refusal to cooperate" with her supervisor.

But Judge Scheindlin also noted that "a reasonable jury could find that the defendants refused to remove [Ms.] Cohen as [Ms.] Anderson's supervisor so they could use [Ms.] Anderson's inevitable resistance to [Ms.] Cohen's continuing supervision as pretext for firing her."

After the opening statements, Ms. Anderson took the stand. Her cross examination is set to continue this morning.

About 10 people dissatisfied with the way the disciplinary committee had handled their complaints against their attorneys also attended yesterday's session.

Thursday, October 15, 2009
New York Law Journal on State Court Corruption Trial
Damages Trial Set to Start in Case of Fired Attorney
The New York Law Journal by Daniel Wise - October 15, 2009

Six jurors and two alternates were selected Tuesday to hear a $10 million damage action against the Office of Court Administration brought by a former attorney for the First Department Disciplinary Committee. Christine C. Anderson claims that after six years as a staff attorney she was fired for complaining that the committee "whitewashed" at least nine cases because the lawyers being investigated were politically connected or represented by lawyers who had previously worked for the committee. The OCA counters that Ms. Anderson was fired because she had been insubordinate. The committee polices the conduct of lawyers practicing in Manhattan and the Bronx. Southern District Judge Shira A. Scheindlin will preside over the trial, which starts Monday and is expected to last one week.

Report: family courts in crisis, Judge Lippman is Part Of The Problem

System handling emotional domestic cases overwhelmed
By IRENE JAY LIU, Capitol bureau
LINK

First published: Sunday, October 25, 2009

ALBANY -- After decades of neglect by the Legislature, New York's overburdened family court system is approaching the "breaking point," according to a state Senate report to be released this week.
The state's 143 family court judges handle some of the most time-sensitive and stressful cases -- involving abuse, neglect, adoption, custody, visitation, domestic violence, juvenile delinquency, paternity and child support.

"They are the most difficult, emotional, the most gut-wrenching cases and they take a great deal of time and consideration and are stressful for everybody," Court of Appeals Chief Judge Jonathan Lippman said in an interview with the Times Union and WMHT's "New York Now."

The economic recession has increased the workload of family court judges: From 2008 to 2009, the Senate report estimates the number of court appearances will grow 26 percent, to nearly 2.6 million appearances. In comparison, family court appearances grew 7 percent from 2005-2008, the report said.

The problem is most severe in New York City, where 53 family court judges -- including some on loan from other courts -- had an average caseload of 1,927 cases per judge in 2008.

The strain is felt not only by the judges and court staff, but also by the litigants and the lawyers who represent them. Too often, people wait hours for their cases to be heard only to experience additional delays.

"In these types of cases, the family dynamics keep changing," said Caroline Kearney, the family law coordinator for Legal Services NYC. "It is a really bad thing when the cases are delayed, because the circumstances of the case could be different each time."

"It is especially traumatizing in domestic violence cases," she said. "Every time the victim has to recount what happened, she relives the event. And every time there's a delay, the attorney has to prepare the client again, reliving the event again and again."

The judiciary has tried to address the shortage by assigning Court of Claims judges to other courts, but the action has not relieved the strain.

"Faced with this surging caseload and related obligations, some family court judges routinely carry huge annual dockets, working with staff on nights, weekends and sometimes around the clock to prioritize the most exigent cases (e.g., abuse, neglect) and meet growing legal mandates," the report said.

"In some counties, matters necessary to provide children with safe and stable homes might be allowed as little as five minutes because there are simply too many cases. Calendars for some courts, social service agencies and institutional legal providers reportedly have become so clogged that sensitive family court proceedings might wait a full year."

While caseloads have grown, only a handful of new family court judgeships have been created by the Legislature to meet the demand.

"The state's long-standing failure to provide sufficient judgeships for family court is edging the family justice system toward danger," the report states. " The state has discriminated against family court and, by extension, the at-risk New Yorkers who have nowhere else to turn for justice, support, and protection."

Moreover, the report said delays in family court cases are among the reasons that New York fails federal performance audits, which risks federal funding under the U.S. Adoption and Safe Families Act.

In the last decade, the Legislature has only created four family court judgeships statewide -- one each in Clinton, Monroe, Oneida and Orange counties. In New York City, where family court jurisdictions are most overburdened, the Legislature hasn't created a single family court judgeship in nearly two decades despite heavy advocacy from advocates, attorneys and the judiciary, particularly under former Chief Judge Judith Kaye.

Lippman, who took over as chief judge in February, explained children and families don't have a "constituency" in the Legislature that can effectively push for family court judges.

Kearney went further: "The family courts are by and large poor people's courts," she said. "You take a look at the litigants in family court and they are disproportionately poor people of color. I think that might have something to do why there isn't the same sort of resources devoted to the court."

In contrast, over the past decade the Legislature created 53 judgeships in other courts, with the greatest growth in the Court of Claims. Judges in the Court of Claims are appointed by the governor and confirmed by the Senate, which make them valuable to political leaders in Albany.

Family court judgeships don't offer the same sort of political currency. They are elected positions, except in New York City, where the mayor appoints the judges. The appointment of family court judges in New York City has been a particularly thorny problem for advocates: Republican leaders were reluctant to create appointments for Democratic mayors in the 1980s and early 1990s; more recently, Democrats have been reluctant to give appointments to Republican mayors Rudy Giuliani and Michael Bloomberg.

In recent years, legislation to create additional family court judgeships has languished in both the Democratic-controlled Assembly and the Republican-controlled Senate. The legislation never came to the floor for a vote, despite heavy lobbying by advocates and Kaye, who was chief judge at the time. But in September, the Senate passed by a bipartisan vote of 54-5 legislation introduced by Democratic Conference Leader John Sampson (pictured above) that would create 21 new family court judgeships, including seven in New York City. The legislation also would create one new judgeship in each of the 14 counties: Albany, Broome, Chautauqua, Chemung, Erie, Monroe, Nassau, Niagara, Oneida, Oswego, St. Lawrence, Schenectady, Suffolk and Westchester.

Sampson also commissioned the 49-page report on the issue, which will be released this week.

The fate of the legislation, however, is unclear as the state struggles with plummeting revenues and must plug an estimated $3 billion deficit in this year's budget. Both the Assembly and Gov. David Paterson have expressed support for more family court judges, but are concerned about the fiscal impact given the state of the economy.

"When it gets to my desk I'll consider it," the governor said in an interview. "But the premise is correct: The family court system needs to be expanded, and we need to give younger people in the system a greater opportunity. ... But it's hard to expand anything until we get our fiscal house in order."

The Office of Court Administration estimates the 21 new judgeships will cost around $18 million per year, including the judges' salaries, support staff and infrastructure costs.

According to the Senate, the judiciary will absorb the cost for the remainder this budget year.

In addition, some policymakers have suggested that the judiciary could absorb the cost of the judgeships moving forward with its existing budget, which totaled $2.6 billion this year.

Lippman said the investment in new judgeships will be more than paid back in the lives of New Yorkers moving through the family court system.

"Judgeships cost money, and the people who support judges in the courtroom cost money, and the back-office people," he said. "But the investment is minimal in terms of the benefits."

Irene Jay Liu can be reached at 454-5081 or iliu@timesunion.com.



Justice is Blindsided
Shelly Silver games Governor Paterson to get his childhood pal the state's top courts job
By Wayne Barrett, Village Voice
LINK

Jonathan Lippman and Sheldon Silver grew up together on the Lower East Side in the 1950s, living next door in the insular Grand Street projects and sitting near each other's family in the neighborhood's Orthodox shul. After both graduated from law school in 1968 and drifted into low-level courthouse gigs in Manhattan in their early careers, one went on to become the longest-serving Democratic legislative leader in modern New York history, master of an unprecedented 107 to 43 majority in the State Assembly. The other remained largely unknown, except inside the state's vast court system.

Last month, the two old friends reunited in the Red Room in the State Capitol to celebrate their emergence as the most powerful duo in state government.

Below the political radar, the black-hatted, still religious, and gravel-toned Silver, who is celebrating his 65th birthday and 15th year as speaker this month, has been quietly boosting the more secular Lippman for years. Now, he's finally pushed Lippman from the series of back-office management posts where he's labored for years to the job of top gavel in the State Judiciary.

Appointed Chief Judge of the Court of Appeals in mid-January by the accidental governor, David Paterson, whose troubled tenure continues to erode his own ranking among the state's power elite, Lippman is awaiting virtually certain confirmation in the next few days from the new and narrow Senate Democratic majority. He will take over a court system that spends $2.3 billion a year, employs 21,000, and is likely to deal with issues like gay marriage, the housing foreclosure crisis, Wall Street criminality, and the still anti-city school aid formula during the six years he will reign until his mandatory retirement at 70.

A year younger than his boyhood friend, Lippman awaits State Senate confirmation before becoming the first chief judge since 1898 to lead the state's highest court without ever serving as one of the court's seven members . When Silver gave a short speech at Paterson's announcement of the appointment, Lippman quipped: "Two kids from the Lower East Side--not too shabby."

In fact, the story of how Lippman reached this pinnacle has its shabby side. He exudes an above-politics reform aura, but he did not climb to the top of the state's judiciary without making some stops in the dark along the way. His ally, Silver, helped clear that path to power, working a system whose anti-democratic ways have been rebuked by two federal courts.

Lippman has been a hardworking ambassador and manager of the courts for decades, visiting almost all of the system's 343 locations and acquainting himself with virtually every one of its 1,300 judges. But he has also been its consummate political player, seemingly more interested in influence than law.

Jonathan Lippman will soon preside over the most complicated and significant cases in New York, even though he's never practiced as a private attorney.

His legal career began in a judge's chambers as a law secretary and, when he turns 70 in six years, it will end there. In fact, he has spent so much of his career as a bureaucrat that he's written only 16 signed judicial opinions, 14 of them since Paterson's predecessor, Eliot Spitzer, made him the presiding justice of Manhattan's Appellate Division in 2007. With that scant a record as a jurist, it's impossible to know what his judicial philosophy is, and even his 24-year tenure in three appointive administrative posts offers no consistent thread about his judicial values or independence.

On one hand, he described himself in a 2006 speech as "unencumbered by parochial or partisan or political agendas," and is so widely considered a champion of court reform that New York's Bar Association found him "exceptionally well qualified" for chief judge, ahead of the "well-qualified" ratings it gave long-standing Appeals judges. The Times endorsed him, and he was given the Rehnquist Award for Judicial Excellence in November by U.S. Supreme Court Chief Judge John Roberts.

On the other hand, he is such a skilled and connected insider that when he ran for the first and only time in 2005, he was the only candidate in the state running for Supreme Court who couldn't be voted against. Lippman was on all five ballot lines: Democratic, Republican, Working Families, Conservative, and Independent. In fact, he had refused to allow his name to be put in the nomination unless every party backed him for the seat, which is the top trial court of the unified court system. (In New York, the "Supreme" Court is not actually supreme: The Court of Appeals is at the top of the judicial pile, above the Appellate Division and the Supreme Court, where major civil and criminal cases are heard.)

David Alpert, the onetime Democratic leader in Lippman's home county of Westchester, says the first time he ever heard of the man was when he got a call from a Republican, State Senator Nick Spano. Spano told him that he and a Westchester Democratic assemblyman, Richard Brodsky, had passed an amendment creating a new Supreme Court seat in Westchester, and Spano wanted Lippman "to be cross-endorsed for it." That meant Spano wanted the Democrats, Republicans, and other minor parties to all vote at their judicial nominating conventions to put Lippman's name on their ballot lines for this new, vacant seat, in exchange for which the Republicans would demand that the Democrats endorse at least one of their candidates.

"I didn't even know [Lippman] lived in Westchester," says Alpert, who was accustomed to promoting attorneys and county judges who had done their time for the party to Supreme Court slots. "I had breakfast with him, and the first thing he told me was that he and Shelly were raised together. He said he wanted to be cross-endorsed and that he wanted to go on to be an appellate judge." Alpert was just one of a legion of county leaders Lippman had to deal with over the years as he sought a Supreme Court seat--five counties with five parties occupy the 9th Judicial District--but Alpert says "we tried twice" (in 2000 and 2002, he believes) to deliver a multi-party cross-endorsement deal and couldn't.

Joseph Ruggiero, the Democratic leader from Dutchess County in 2002, said that on the day of the judicial convention when Democrats picked their Supreme Court nominees, Silver placed a conference call to a group of party leaders gathered at the Westchester headquarters and asked them to support Lippman. "We all said yes," recalled Ruggiero. How could they say no? With a Republican governor and Senate majority leader at the time, Silver was New York's top Democrat, and Denny Farrell, Silver's right hand in the assembly, was the state party chair.

When the current Westchester Democratic leader, Reggie LaFayette, finally did deliver a deal for Lippman in 2005, he explained Lippman's unusual candidacy--clearly more top-down than the typical grassroots designation--to his executive committee this way: "I told them I don't create judge seats. It was created higher up than me, by the two houses of the legislature. And someone yelled out, 'You mean Assemblyman Silver,' and I said, 'Well, he had to vote for it.' " But the bigger problem for LaFayette was cajoling his fellow leaders into giving up a seat in a cross-endorsement deal and backing a Republican. Cross-endorsements are easy when the two parties are competitive and no one knows who will win, but Democrats had won five of six judgeships in 2004, without any deals, and felt no need to give the GOP anything.

The executive committee understood LaFayette's argument and signed on, but a few weeks later, the price of the Lippman package deal got much steeper. The leaders could live with cross-endorsing the initial Republican candidate, a respected county judge named Stewart Rosenwasser. But just days before the September judicial conventions, the Republicans replaced Rosenwasser with a candidate that horrified many Democrats: Joseph Alessandro, also a county judge.

Alessandro had been found "not qualified" by the Bar Association and was dogged by tawdry tax and lawsuit charges. The New York State Commission on Judicial Conduct is still investigating those charges, and Alessandro, who did become a Supreme Court judge, is now facing possible severe sanctions. Yet it was Lippman's demands that would put Alessandro on the bench.

Lippman wanted to be endorsed by all five parties, and that insistence created an opening for the county's most voracious party boss, Dr. Giulio Cavallo, who controlled the Independence Party. He wanted Alessandro, not Rosenwasser, to become Lippman's opposite number in the multi-party swap and get the cross-endorsements. LaFayette and the Republican leader, RoseMarie Panio, eventually decided to back Alessandro, but fights against the deal broke out on the floors of both of these ordinarily scripted and staid conventions. Challengers ran against Alessandro and, had he lost at either convention, Lippman's precious deal--and ultimately his route to the Court of Appeals--would have died.

The inclusion of Alessandro so offended Working Families party chair Pat Welsh that he endorsed Lippman but refused to back Alessandro, telling the Voice that the deal was "unconscionable." (Lippman ran on five ballot lines; Alessandro, apparently unconcerned about the Working Families Party, four). A disgusted Rosenwasser wound up quitting the bench altogether.

At Lippman's January 2006 induction ceremony for Supreme Court in White Plains, Silver regaled the audience of bigwigs--at a special celebration separated from the swearing-in of the other new judges--with "our gang" stories from their first meeting at the age of six. Saying, "We have shared a common path," Silver joined in celebrating "with my colleagues in the legislature," many of whom were there, "who I say had a good hand in making today happen." While Lippman is now said to be downplaying Silver's role in his rise, he called him "family" in his speech and praised him for "marshaling the troops, and, boy, can he marshal the troops."

Lippman called himself "basically an apolitical person," and then thanked 16 party leaders, referring to each of the five from Westchester, including Cavallo, as "my leader," singling out Spano, who, he said, "vouched for me on the Republican side." Judge Gail Prudenti, the presiding justice in the Appellate Division covering Westchester, spoke on behalf of what she called "the many, many, many campaign advisers to the seemingly never-ending 'Lippman for Justice' campaigns."

The unexamined side of the Lippman saga is revealed in these salty Westchester tales, where the judge who pretends he is above self-serving politics played it as skillfully as his sidekick from the neighborhood who does it for a living. Lippman created the state's Judicial Campaign Ethics Center to guide candidates for elected judgeships, but he told Alpert, and many others, that he wanted the seat handed to him without the inconvenience of an election because it would be unseemly for the chief administrative judge to solicit contributions.

Yet he had no problem brandishing the calling card of Silver's friendship, or dialing up county leaders and other powerbrokers, some of whom, including Senate Assistant Majority Leader and onetime GOP boss Spano, were receiving lucrative patronage assignments from his courts. He even had no hesitation about going forward with the deal though he knew it would result in the elevation of an already tarnished judge, Alessandro, who may soon be repudiated by the Conduct Commission.

In fact, just as he began his efforts to secure a Supreme Court slot in 2000, he opened an elaborate office for himself in state space, across the street from the White Plains courthouse, and began spending a lot of time there, deeply involving himself in the judicial politics of that district. Shortly before that, he abruptly asked the district's administrative judge, Angelo Ingrassia, a Republican from a small county in the district, to step down a year before his mandatory retirement age. He even gave Ingrassia a car and chauffeur for his final year to induce him to do it.

He then split Ingrassia's job into two positions and gave both to Spano allies--one a Republican and the other an influential Democrat from Westchester, the populous center of the district. The new administrative judge, Frank Nicolai, denied in a Voice interview that he "campaigned for Lippman" in the long-running effort to secure a Supreme Court seat, as some sources contend. That would be a violation of judicial ethics, which only permit judges to campaign for themselves. "If someone asked," Nicolai said, "I'd say he'd be an outstanding judge." Asked if he might have initiated some of those conversations, Nicolai added: "I might have."

Nicolai presided at Lippman's 2006 swearing-in, where Lippman, Silver, and his other prestigious friends were so self-congratulatory it was almost as if he had actually won an election--when all he'd really done was collect chits and lean on the party bosses who'd installed him. With all the editorial hubbub about the judicial nominating process in New York, spurred by the federal court decisions that the process was an unconstitutional infringement of the franchise, Lippman the reformer had inadvertently established by his own experience how poisonously anti-democratic it was.

Yet, at his induction, he called his campaign "a unique experience," and even praised the mix of elective and appointive positions in New York's judicial system. Indeed, he has proven, from his Supreme Court fix to his culminating appointment as chief judge, that he is the master of both processes, each with their own brand of incestuous networking. If that is merit, then Lippman is what many of his supporters see him as, the embodiment of the merit system in our courts.

Lippman wanted a Supreme Court spot to make himself legally eligible for appointment to a second-tier appellate post, which he saw as a vital stepping-stone to the top-tier Court of Appeals. He had to do it then because his other sponsor, Chief Judge Judith Kaye, would have to step down when she turned 70 in 2008, and even a brief stint on the appellate bench would give him an opportunity to build a record as a scholarly jurist, though it would be quite a lean one in comparison with competitors who'd actually written opinions for lifetimes.

But his timely and controversial "election" was hardly the only awkwardly abetted step on his unprecedented career ascension. Prior to it, Lippman had only been a Court of Claims judge--an appointment bestowed by Governor George Pataki a few months into his first year in office (1995), when the Democrat Lippman managed to secure a spot despite the hunger of Republicans eager to grab judicial patronage slots after 12 years of Democratic rule.

At the time, Lippman was the top deputy in the Office of Court Administration, and all he had going for him were his Silver ties; an assiduously cultivated friendship with GOP Senate Judiciary Chair Jim Lack; and the backing of Judge Kaye, who argued that Lippman should hold a judicial title since she intended to install him, as she did a few months later, as the chief administrative judge.

Spano, who had just become the Republican county leader in Westchester in 1995, met Lippman in the few days between Pataki's appointment and the Senate's confirmation. Since Lippman was technically a candidate from Spano's home turf, he had to sign off and did, endorsing Lippman on the Senate floor and launching what he concedes became a series of efforts on Lippman's behalf that he would make over the coming years. Three of the pivotal party brass--Westchester Conservative Gail Burns, Rockland County Republican Vince Reda, and Cavallo--were on Spano-engineered Senate payrolls when Lippman collected his cross-endorsements in 2005, and the senator concedes that he spoke to them, as well as to Westchester Republican RoseMarie Panio, a close ally. "I'm sure I expressed support for Judge Lippman," Spano tells the Voice. "Anytime his name was up, I was an enthusiastic supporter."

In fact, Spano, who was widely viewed as the Senate Republican closest to Silver, confirmed his call to Alpert and acknowledged that he'd pushed midnight legislation through in 2005 and earlier, aided by Brodsky, that created new Supreme Court seats in the judicial district covering Westchester. The bill in 2005 was introduced by Pataki on June 24 and passed by both houses that day. While Spano said he didn't think "it would be fair to say" the seats were "created for anyone," he concedes that "Lippman's name came up" when the bills were adopted. Lippman needed more than one bill because the cross-endorsement deals with the Republicans fell apart, for reasons having nothing to do with him (once the Republicans demanded four Republican cross-endorsements for Lippman). He even went so far as to be nominated by the Democrats in 2002, only to file a formal declination when the deal with the GOP broke down.

A few months after Spano helped engineer Lippman's 2005 cross-endorsement, his brother, Mike Spano, an assemblyman mired in the hopelessly outmanned Republican minority, quit the assembly and joined a premier Albany lobbying firm run by Silver's former chief of staff, Pat Lynch, who is perceived to be the lobbyist closest to the speaker. When Nick Spano was defeated for the Senate in 2006, he formed his own lobbying company that Lynch invested in and allowed him to operate until this month out of her Albany suite. Mike Spano eventually went back to the Assembly, but he later became a Democrat at a press conference attended by Silver. Nick Spano, who reported half a million dollars in lobbying fees in 2007, denies vociferously that his aggressive support for Lippman has anything to do with his current business. But his ties to Lynch, and Lynch's hiring of his brother (who was hardly an influential Albany player), are a measure of his alliance with Silver, who Nick Spano says he "might have talked to" about Lippman's candidacy over the years "in social settings."

All the while that Spano was aiding Lippman's candidacy, he was reaping at least $79,739 in fees as a "court evaluator," a person paid to measure the mental competency of someone named in a legal petition. Though Spano isn't a lawyer, he has received 31 of these assignments and four other referee assignments. OCA regulations require the disclosure of these fees, but Spano's fees in 15 cases aren't listed on the office's printout. While Lippman's OCA had nothing to do with choosing evaluators (individual judges do that), it did collect applications for appointments; approved evaluators, like Spano, for the list; and set the qualifications for appointment, which appear to permit just about any professional to sign up.

Evaluators look into the eyes of the subjects of these court petitions, many of whom are elderly and in nursing homes, and decide whether they should retain control of property and other assets, the value of which they also consider. Spano sponsored the law that created this position, and he and other pols in Westchester, including then Senator Guy Velella, wasted no time collecting assignments. Velella, who has since been convicted on unrelated charges, was another social friend of Lippman's, and dined with him and Senator Lack and their wives at Rao's, the famously exclusive restaurant in East Harlem. Even one of the restaurant owners collected 19 appointments as an evaluator.

Lack, however, never dipped into the evaluator till, but he did collect 66 court appointments as a guardian or referee while chairing the Senate Judiciary, 26 of which were from Judge Prudenti, who spoke about her adviser role in Lippman's never-ending campaign at the 2006 induction. A Court of Claims judge himself by then, Lack was also present at the swearing-in and was saluted by Lippman, though he'd left the Senate after chasing a woman to her home in a road-rage dispute and ducking under the garage door when she tried to hide from him. "Do I think it's a terrible thing that people involved in public office receive this?" Lippman once told Newsday, referring to judicial patronage. "No, I don't."

There's no indication that Lippman did anything more than oversee this grab bag of goodies--with evaluators often earning $3,000 for a couple hours of work. But if Lippman was so concerned about the appearances of being political that he effectively exempted himself from the requirement that he actually compete in the electoral arena, he might have been a bit more careful about the appearances of his alliances with the beneficiaries of this dubious bonanza.

The day after Lippman became a Supreme Court Judge, in 2006, he asked Judges Kaye and Prudenti to name him to the Appellate Term, a job he would perform in addition to the administrative post he retained. This assignment--which allowed him to hear appeals of some lower court decisions--was his only way of acquiring appeal experience without being formally elevated by the governor to the full Appellate Division.

When a vacancy developed in the Manhattan Appellate Division and Spitzer selected Lippman as the county's presiding judge, howls were heard because two of the most respected sitting judges on that Appellate Division were bypassed by the screening panel of lawyers that vets judicial candidates, narrowing the governor's choice.

The same thing happened in December, when the screening panel for chief judge excluded two sitting Court of Appeals judges, as well as all women and Latino candidates--giving Paterson an invitation he couldn't figure out how to refuse. The panel included four Kaye appointees and one from Silver. Panel member Leo Milonas was so close to Lippman he spoke at the induction. Lippman saluted Milonas then as "truly my friend for life," calling their friendship, which began when Lippman worked for him at OCA, "an unforgettable relationship that, to my great benefit, continues today in every way."

Reminded of that by the Voice, Milonas saw it as no reason to have recused himself from anointing Lippman, noting that he was "more qualified" to help pick a chief judge "because I know people." The panel's chair, John O'Mara, a Pataki appointee, sat with Lippman on the court's Capital Construction Board for years.

An angry Paterson asked Attorney General Andrew Cuomo to investigate the panel's exclusionary list of seven nominees, but he never released Cuomo's report or recommendations. Instead, he began openly associating the chief judge selection with the other grand decision that faced him--the choice of a new senator to succeed Hillary Clinton--sending the signal that he had to pick a woman for the Senate since the panel's list barred him from picking one for the court.

When Silver reversed course and supported Caroline Kennedy, insiders suspected it was all about his love for Lippman. At that point, the governor had also just about convinced everyone that he wanted Kennedy, and the assumption was that Silver got the message that if he wanted Lippman, he'd better sing "Auld Lang Syne" to his Kennedy animosity. Paterson was asked about this connection at the Lippman announcement and denied it, adding that he "actually did not know the extent" of Lippman's "relationship" with Silver until he called the speaker to tell him about the appointment--which would make the governor the only high-ranking New York official unaware of it.

Ironically, of course, Paterson deserted Kennedy, and even claimed, improbably, that he never intended to pick her, though he revealed how important he thought Silver's opinion was about his eventual choice, Kirsten Gillibrand (another woman, to balance Lippman), when he said at her announcement that he moved it up to Friday from Saturday so the Sabbath-observing Silver could attend. It would be par for the course in Paterson's stumbling regime that he would agree to Silver's choice for chief judge in return for Silver's support of Kennedy, and then not get her, only to be stuck with Silver's pal for judge.

Whatever the deal, Paterson appeared boxed in when he announced that he would choose from the screening panel's list for chief judge. But there is one school of thought, citing interpretations from the OCA, that suggests that Paterson could simply have chosen to do nothing when the January 15 appointment deadline arrived. These analysts argue that Paterson could have named no one until later this year, when panel chair O'Mara steps down. That would have meant that Carmen Ciparick, a woman and a Hispanic who has been on the Court of Appeals for 15 years, could have continued serving as the acting chief judge, a position the other five judges voted to give her when Kaye retired in January. The press office at the court says Ciparick is the chief judge "as long as the seat remains vacant." If Paterson had simply done nothing, he could have eventually asked the new panel for a new list, and Ciparick, who applied and was rejected by O'Mara's very politicized panel, might actually have gotten a chance to compete for the job.

The same is true should the Senate take no action now. In fact, several Democratic state senators have been making a fuss for weeks about the lack of Latino representation in positions of power--at any level of city or state government. It is an issue that threatened the Democratic takeover of the Senate majority at the same time that Paterson was deciding, unknown to anyone, to displace a sitting Latina chief judge he could have allowed to remain, and perhaps even wind up appointing. His simultaneous selection of the anti-immigrant Gillibrand for the Senate seat compounded Paterson's trouble with Hispanics.

New York's first black governor preferred the comfort of Silver and Kaye and Lippman and the old-line judicial establishment. Lippman had even been careful enough to establish a personal rapport with the governor when Paterson was the Senate minority leader, meeting with him on OCA issues. Unelected himself and unsure of the extraordinary powers of his office, Paterson seems to shrink in Silver's company, now blaming the millionaire's tax on him as if the speaker sets the budget agenda.

The graying gang from Grand Street rolled the neophyte governor from Harlem, and will soon double their choke hold on state government, a triumph of loyalty and intrigue, which, in old New York, adds up to just another measure of merit.

Research assistance by Dene-Hern Chen, Jana Kasperkevic, Sudip P. Mukherjee, and Jesus Ron

Village Voice Story on Judge Lippman-Westcheter Pols Playing Games With Judiciary
LINK

Lets talks about a dynamite article recenlty printed in the Village Voice, concerning Judge Jonathan Lippman, who was recently appointed by Governor David Paterson to serve as the Chief Judge for the State Court of Appeals, the highest court in New York.

Lippman has a history in Westchester, dating back to 2005, when a political deal was struck to cross endorse him to the State Supreme Court. Lippman needed the Supreme Court post to be nominated for the Court of Appeals.

A laundry list of Westchester pols is mentioned in Wayne Barrett’s story, worthy of mention. They include:

I-David Alpert-former County Democratic Chairman, quoted in the story confirming the cross endosement deal.

II-Reggie LaFayette-current Democratic Chairman and one of three Westchester Party Chairs who approved the deal to cross endorse Lippman.

III-Rose Marie Panio-Westchester GOP Chair in 2005, who is characterized in Barrett’s story as responding to the wishes of Nick Spano.

IV-Nick Spano-former State Senator Spano is mentioned the most in Barrett’s piece, and is said to be the mastermind behind Lippman’s cross endorsement.

V-Dr. Giulio Cavallo-Westchester Independence Party Chair now and in 2005, and the 3rd chairman to go along with the deal. Barrett writes that Cavallo forced the cross endorsement deal to include Joseph Allesandro, who was found to be unqualified
by the Bar Association. Cavallo insisted that the cross endorsement include both Lippman and Allesandro for the 2 Supreme Court seats open in 2005, in the 9th Judicial District, which includes Westchester, Rockland, Putnam, Orange and Dutchess counties. Cavallo’s request outraged Democrats and Republicans, who watched as other qualified candidates were passed over in favor of Allesandro. Both Lippman and Allesandro won their races, Lippman with no oppositon, the only Judicial candidate in the state to run unopposed, and Allesandro with only minor opposition.

Most interesting to note is that Lippman, a Democrat, was aided the most by Nick Spano, a Republican. Barrett claims that this is due to Nick’s close relationship with Assembly Speaker Sheldon Silver, who wanted Lippman, his close friend, to get onto the State Supreme Court.

Barrett also goes onto explain how Nick Spano received $77,000 as a court appointed a court evaluator for referee assingments, despite the fact that he was not an attorney. Barrett further claims that both Nick and Mike Spano’s lucrative lobbying jobs after Lippman’s appointment were part of the cozy relationship between Nick and Silver.

Barrett’s story is a compelling read that brings us back to a disturbing time in Westchester politics, whe political deals were cut for elected positions inlcuding Judges.

The question that many are asking is why did Barrett print the story now? Why did he wait almost 3 years to highlight what he describes as political corruption?

Law enforcement sources tell us that Barrett agreed not to run the story, pending an ongoing Federal investigation regarding political corruption in Westchester. “Barrett agreed not to run the story until told he could do so,” says our source. “Now that the Feds investigation is complete, this story is a prelude to some in his story getting indicted.”

Read the story, its long but well worth it, and kudos to Barrett who either did a masterful research job, or had a source who had all the facts correct.

Is Arbitration The Appropriate Forum For Rape?

The Truth About the Franken Amendment

* Posted October 16th, 2009 at 4.01pm in Enterprise and Free Markets, Rule of Law.

When a disgruntled employee files a lawsuit that goes to court his employer must pay tens or hundreds of thousands of dollars in legal fees. Even if the courts reject the allegation as frivolous employers must still pay the lawyers. That allows unscrupulous employees to use threat of going to court to win large settlements from their bosses for baseless claims. Guilty or not guilty, the employer loses money that could have been used to expand operations and hire more workers.

Consequently many employers are turning to alternative dispute resolution methods that cost far less. Many contracts require employers and employees to take legal disputes to arbitration. There an outside arbitrator evaluates the claims and imposes remedies. Arbitrators award employees fair damages in cases of actual injustice while quickly dispensing with merit-less nuisance suits. Instead of legal bills running into the hundreds of thousands of dollars, however, arbitration usually costs only a few thousand dollars. That saves employers the money they need to create jobs while giving rogue employees no leverage to win undeserved settlements. Arbitration protects employees’ legal rights while keeping the economy moving. Everybody wins. Except the trial lawyers.

They like high legal bills. So they hate arbitration. It takes away their customers. The trial lawyer bar has long lobbied Congress to ban arbitration. They want to guarantee that employers accused of wrongdoing must always settle (with the help of attorneys) or go to court and really rack up their legal costs. Banning arbitration protects trial lawyers six-and-seven-figure lifestyles, but it sucks money out of businesses that would otherwise create jobs.

Last Tuesday the Senate gave the trial lawyers an enormous win. It passed an amendment offered by Al Franken (D-MN) that bars any contractor with the Department of Defense from using arbitration.

The putative justification for this is a horrific case in which Jamie Jones, a Halliburton employee in Iraq, who alleges that she was gang-raped in her bedroom by her co-workers. She claims that when she reported the attack to her supervisors, they placed her in a container under armed guard and did not let her leave or call her family for several days. Halliburton HR officials allegedly told her to “get over it” or lose her job, and she asserts that Halliburton attempted to short circuit her lawsuit by sending the case to arbitration.

Given that Franken chose to highlight her case, you might assume that the courts ruled in Haliburton’s favor, and that she was not able to bring her claims in court instead of to an arbitrator. But then you would be wrong. The courts ruled that Halliburton could not arbitrate her claims of assault and battery, intentional infliction of emotional distress, negligent hiring, retention and supervision of employees involved in the assault, and false imprisonment.

So why did Franken offer his amendment to ban arbitration? And why an amendment that applies to every company with contracts with the DOD, not just Halliburton? Because it has little to do with ensuring that Jamie Jones gets justice. The courts have already allowed Jones’ lawsuit to go forward. This amendment is a move towards the plaintiff bar’s longstanding goal of banning dispute arbitration. But the allegations in this case are so egregious that it makes it difficult for Members of Congress to stand up for the rights of law-abiding employers.

Making it easier for lawyers to take their cut appeals to lawyers. But it comes at the expense of job creation. The money lawyers take undercuts healthy businesses and discourages new entrepreneurs from starting their own small businesses. Why would anyone start a business if they expected to spend most of the money they earn on legal bills? Why take that risk? Congress should not let the trial bar pre-judge America’s job creators guilty as charged.

* Author: James Sherk
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*Comments
October 16, 2009 Ben Porter writes:

Actually, the description of the amendment does not disallow the use of arbitration in all or even most cases. As said, Jamie Jones was allowed to take her case to court, but only after years of litigation pursuing the RIGHT to bring her case to court. This court decision is not universal, and Franken’s amendment seeks to make the results of that decision policy. As Franken said, “The amendment I’m offering today seeks to narrowly target the most egregious violations”
October 16, 2009 Judy writes:

I have a question: Would this law have any effect on provisions of the “card check” bill, in which the “government” would be the arbitrator in union contract disputes? I would say it would, but alas, I’m neither a lawyer or judge. It would be a great thing if it did have an effect on the legislation on that horrendous bill. Just wondering.
October 16, 2009 Loren Meck, Simi Valley, CA writes:

The Franken amendment prevents contractors from requiring arbitration for “any tort related to or arising out of sexual assault or harassment, including assault and battery, intentional infliction of emotional distress, false imprisonment, or negligent hiring, supervision, or retention.” I agree with Mr. Sherk that the bill as passed is subject to abuse by employees, because “sexual harassment” can be alleged in a wide variety of circumstances. Too bad Halliburton fought so hard trying to keep Ms. Jones’ case out of the courts; otherwise the Senate never would have passed this bill.
October 16, 2009 Leon, Durango, CO writes:

Here is another example of Liberal/Progressive fascism (perfect because Franken stole his election). Arbitration can benefit the victim as well as the Business by making Justice more possible for either party. It should be a choice of the parties involved not a fiat from above. Going to Court doesn’t improve your chances because these days the judges do whatever they want. They don’t even know the law (I am not kidding). I expect plenty more atrocity from Franken, and Al? It isn’t funny.
October 16, 2009 Bobbie Jay writes:

PATHETIC! NOBODY CAN CONTROL THE ACTIONS OF ANOTHER. AS HUMAN BEINGS, ALL ARE ACCOUNTABLE TO THEIR OWN ACTIONS! THE GOVERNMENT HAS NO RIGHT TO PROTECT WITH BIAS. THE TRIAL LAWYERS.

SUE THE UNION!
October 16, 2009 Don Gorga, New Jersey writes:

The most simple answer is that if the company does not want to put itself into a situation that it does not find equitable, than the company should simply NOT seek government contract. If NO companies will bid on or take government contracts how long do you thing this would stand?
In the meantime, special interest groups, ALL special interest groups should be BANNED by law from having any contact with elected officials.
October 16, 2009 Todd Kelly, Houston Texas writes:

Actually, the comment that “arbitration protects employees legal rights” could not be further from the truth. In fact, Arbitration is conducted in secret, it is binding (and therefore not appealable - even when the law is blatantly disregarded), it is signed without the benefit of counsel (though the company’s attorneys worked tirelessly to create it), it is sold as a “quick, inexpensive, and effective way to resolve conflicts.” The truth is, however, that it is only inexpensive for the corporations. That is why corporations force it upon consumers and employees - yes, FORCE it. If arbitration were fair, as this article seems to argue, then why is it that only the individuals ever try to get out of arbitration once they have been properly advised? If it is so fair - why does it have to be forced?

Arbitrators that rule in favor of individuals run the risk of being non-selected for arbitration by the company the next time. Arbitrators know this. Arbitrators like to eat, too. They know who is going to be before them on a repeated basis and who is there for a one time deal. Their natural bias is for the large conglomerate, who wants to dispose of the dispute quickly, quietly, and with minimal cost. There was a system in old England that touted the same virtue. It was called the Star Chamber. It’s back!

We formed a Constitution to avoid having people face such unequal justice in the face of power. We have sent countless young men and women into the face of battle and to their graves to defend that principle. Yet, we give it up so easily when large corporations tell us that it is the right thing to do. Do not be fooled - this is corporate America insulating itself from liability, and making sure that it is - above the law.
October 16, 2009 mark writes:

Actually the 5th Circuit affirmed that those claims “related to [her] employment” or constitute personal injury “arising in the workplace” must be arbitrated and those that are not related to her employment can go into civil court. Arguably if Haliburton had made the employment contract even more restrictive, none of the claims could have gone to court.

So what? you might say. The Bush administration gave contractors, such as Haliburton, immunity from criminal prosecution in Iraq. Since the alleged crimes occurred in Iraq, Iraqi courts would have had jurisdiction - which is why U.S. courts have not prosecuted.

The obvious issue is: what does the “no” vote of the 30 Republican senators say about their priorities, judgment and loyalties?

It’s one thing to require arbitration for matters like pay and discrimination, its quite another matter to require allegations of responsibility for rape to be decided before an in-house arbitrator. In the Haliburton case, they choose the arbitrator, the rules of evidence, access to discovery and types of damages available. In cases taken before an arbitrator at Haliburton, 80% were found to be without any merit by the homey arbitrators.

Also, in arbitration, there is usually very limited discovery. Without adequate discovery there is no way the woman who was allegedly raped would get fair access to the evidence needed to present her case. Even if she did, and even if the arbitrator ruled in her favor (which would be unlikely), there would be no punitive damages available to her, as there are in civil court.

Also, there is no appeal of an arbitrator’s decision, as there is in civil courts. Lastly, the reports of destroying evidence and threats made against the woman by Haliburton further make arbitration an inadequate and unjust process in these circumstances.

Since the equities of Franken’s amendment so clearly weighed in its favor, the issue is: why did the 30 Republican senators vote against it? The obvious inference to be drawn is that the Republican senators’ loyalty to large corporations, such as Haliburton, is greater than requiring justice for a woman who was horribly gang-rapped. And, I suppose, it raises the question - if Republicans think it is OK to outlaw federal contracts with ACORN, why is it wrong to require federal contractors to permit access to civil courts in the case of rape? The federal gov’t has placed conditions on federal contracts for many years and the U.S. Supreme court has ruled that to do so is constitutional and within its power.
October 16, 2009 Chrisfs,CA writes:

Heritage’s take is rather despicable. The Franken amendment is written rather narrowly to include only claims of sexual assault, assault and battery, intentional infliction of emotional distress, and negligent hiring, retention and supervision. And it only restricts those to firms doing business with the Federal govt.
Why every firm doing business with the govt and not just Haliburton??
Because that is incredible bad piecemeal lawmaking. Preventing victims of serious and horrid crimes from seeking their day in an actual court is a bad policy regardless of which company does it.
Why should the government single out Haliburton?
October 16, 2009 Ken, Florida writes:

Since very few people actually bother to research Congressional legislation, I’ve decided to post the exact text of the Franken Amendment to the Defense Appropriations Bill of the 111th Congress of the United States. For those of you who see this as a big win for lawyers and a loss for legitimate business, I have yet to see any argument against this amendment to the Senate bill which truly appeals to reason.

Franken Amendment to the 2010 Defense Appropriations Bill:
Sec. 8118. (a) None of the funds appropriated or otherwise made available by this Act may be used for any existing or new Federal contract if the contractor or a subcontractor at any tier requires that an employee or independent contractor, as a condition of employment, sign a contract that mandates that the employee or independent contractor performing work under the contract or subcontract resolve through arbitration any claim under title VII of the Civil Rights Act of 1964 or any tort related to or arising out of sexual assault or harassment, including assault and battery, intentional infliction of emotional distress, false imprisonment, or negligent hiring, supervision, or retention.

(b) The prohibition in subsection (a) does not apply with respect to employment contracts that may not be enforced in a court of the United States.
October 16, 2009 Hal, Michigan writes:

I see your article failed mention this brutal attack occurred in 2005. It has taken 4 years for Ms. Jones to have the right to bring her case to court. Sorry, your glowing description of the wonders of arbitration are full of cow chips! This was not a dispute, this was a criminal case that should be tried in a criminal court. When leaving a comment to this blog, it states, “Essentially, don’t say anything you wouldn’t say to your mother at the dinner table.” My mother would be horrified if I tried explain why this bill is wrong even though it would have given this young lady a speedier road to justice. Justice delayed is justice denied!
October 17, 2009 Franken's First Ammendment! - Christian Forums writes:

[...] might help explain republican objections: The Truth About the Franken Amendment The Foundry __________________ When men reduce their virtues to the approximate, then evil acquires the [...]
October 17, 2009 Josh, Ohio writes:

I’ve been trying to find out a little information on this, perhaps someone here can help me. Taking Ms. Jones’ case as an example, and giving that her accusations are true, I’m assuming that she has the right to sue and press charges against the men who assaulted her, and the men who then imprisoned her. Is that correct?

If that’s correct:
To hold the company at fault for these actions, unless they have a policy allowing gang rape and imprisonment, or failed to, as a company follow up on these accusations, seems to just be shifting the blame to someone who has deeper pockets so that a larger settlement could be won and collected. Though the charges of “negligent hiring, retention and supervision of employees involved in the assault” is a company issue, and should thus be the fault of the company. I really do feel bad for this young woman, and very much believe that those responsible should be held to great account for the greatly egregious actions. But I don’t those not responsible should pay for the crimes of others.

If Ms. Jones can not directly press charges and sue the men responsible, then that should be addressed.

I really do feel bad for this young woman, and very much believe that those responsible should be held to great account for the greatly egregious actions. But I don’t those not responsible should pay for the crimes of others.

If someone could straighten me out on the facts, or point out an obvious flaw in my conclusions, I’d be very appreciative.
October 17, 2009 scott writes:

You have lost all respact and all integrity for publishing sucha dispicable article. There are no words that can describe the the utter lack of humanity you have displayed. God help you.
October 17, 2009 Giorgio, Wyoming writes:

Mr. Sherk, given the clear, narrow scope of the verbiage of the amendment address a horrific act that includes many other cases than just Ms. Jones’ case, I am disgusted by your rebuke of the amendment. Your article pulls an amazing red herring. You took worthy, respectable conservative ideological tenets of the Republican platform and degraded them by misapplying them. Sen. Franken’s amendment narrowly focuses on a violent crime - the text is very clear and unambiguous. Please don’t sully meaningful, important endeavors like tort reform by using it as a shield to defend the indefensible. If you dislike Sen. Franken’s political views, then comment on them directly; however, please do not use honorable conservative principles as a defense for heinous acts. It not only impugns the victims of those horrible acts, but the very ideology itself and those of us conservative Republicans that value it.
October 17, 2009 Charles, Florida writes:

I thought in the United States one was considered innocent until proven guilty. Well, Jamie Jones hasn’t proven anyone guilty. About the only thing I see from Jamie Jones is capitalizing on her story (whether true or fabricated). She has even gone as far to create ‘The Jamie Leigh Foundation’ a nonprofit organization accepting donations but gives an undefined definition of what exactly your donation will be used for. What I am detecting here is a lawyer or group of them, using Jamie Jones as a figure head to create this ‘foundation’ and push this bill. And anyone who knows anything about legislation knows first you get your foot in the door, and then you expand it through the amendment process. If you look at Ms Jones on wikipedia you will find she is working on… of all things “Presently, Jones is pursuing a Bachelors of Criminal Justice, American Military University, to be completed in March 2008.” So she is dedicating her life to those poor innocent coworkers by becoming an attorney and lobbying congress to ban Arbitration. Hmm wonder what her specialty will be as an attorney? I think this author is dead on the money here.
October 17, 2009 Phil Mole writes:

It’s ironic that an piece titled “The Truth About the Franken Amendment” is so apathetic toward facts. As some of the other commenters have pointed out, the amendment does NOT ban arbitration. Rather, it prohibits companies that REQUIRE settlement of rape and assault cases through arbitration from receiving federal funds. That is a pretty big difference. I suggest learning a few things about a subject before attempting to comment about it, especially when you’re speaking out AGAINST the rights of rape victims. Start by reading this:

http://www.butterfliesandwheels.com/articleprint.php?num=431
October 17, 2009 Sue, virginia writes:

You and your foundation should be ashamed of yourselves for providing any defense to vote against this amendment. You are as callous as the 30 spineless Republican Senators who made clear where their allegiance is - to their corporate donors.
October 18, 2009 The Truth About the Franken Amendment « Conservative Thoughts and Profundity writes:

[...] The Truth About the Franken Amendment Filed under: Heritage.com — nhiemstra @ 7:23 am via: heritage [...]
October 18, 2009 Below The Beltway » Blog Archive » Why Did 30 Republicans Vote To Shield A Military Contractor From Liability For Rape ? writes:

[...] Heritage Foundation argued against the amendment, claiming that it was a benefit mainly to trial lawyers, and that arbitration is the better alternative. What Heritage failed to note, though, is that Ms. [...]
October 18, 2009 Janus Daniels writes:

Ken, keep facts out of think tanks!
October 18, 2009 Ian Walker, Topanga, CA writes:

This essay casts such a loose and unrigorous angle on the subject, while professing to reveal “the truth” of the matter, it does little more than betray a lack of discipline and poor reading skills. “Banning arbitration protects trial lawyers six-and-seven-figure lifestyles” The amendment does not ban arbitration. Please pay attention.
October 18, 2009 Wayne B writes:

Dear James Sherk,

So, what you’re saying is that we should get rid of any law that might cost a company some legal defense money?

How about laws like the DMCA that are used as a legal sledgehammer against the people of the United States? People can’t afford to lawyer up against those companies that choose to prosecute them, so it must be a bad law. What about companies like Monsanto that use the courts to intimidate farmers?
October 18, 2009 Zack, Pennsylvania writes:

Whoa, KBR is appealing the ruling for Ms. Jones to have her day in court. This is not over and not by a long shot. These people make me sick. I find it somewhat rewarding that the Senators that voted against this amendment are being outed but the true justice would be outing the seven who committed this heinous crime. Of course, I am sure this will be made public knowledge when the trial finally does take place. Oh, I cannot wait!

Im rooting for ya Ms. Jones.
October 18, 2009 Amelie, Los Angeles writes:

We now live in a society in which the corporations and employers have far more legal rights and privileges than individuals, workers, and consumers. What happened to Ms. Jones was not only horrifying, it was Halliburton’s fault! Halliburton tolerated these thug employees and deliberately covered up the fact that other employees had been assaulted under similar conditions–what a splendid use of our tax dollars! As Jon Stewart pointed out, there was no permission to rape clause in Ms. Jones’ contract. James Sherk’s take on this issue is loathesome. How would he have felt had Ms. Jones been his own daughter?
October 18, 2009 Jay, Alabama writes:

I vomited when I read this article. It made me that sick. Today you cannot get buy a car, get a job, and do most things without signing a contract accepting arbitration. The rights guaranteed to us by our constitution have been taken away by the collusion of business and government. Now you can get raped without access to due process and our justice system. Disgusting. What is next? This article outlines the thinking that will get us to the next level of collusion between business and government.
October 19, 2009 Andy H. Kansas City writes:

“Arbitrators award employees fair damages in cases of actual injustice” What evidence do you have to support this claim that makes up the cornerstone of your argument? You’re a think tank and don’t even take the time to back up your “thinking” with evidence? The reality is that your claim cannot be substantiated. Not even KBR lawyers could back this up. Arbitration protects the employer not only by lowering costs, as you claim, but by awarding insignificant damages that can’t compel them to stop the alleged abuses or give them reason to prevent the injustice in the future.
October 19, 2009 Beth, Virginia writes:

How about employers that are not law-abiding citizens? How about employers that commit manslaughter? What about employers who are seeking only to enhance the bottom line, not provide health care to it’s paying members who have no idea they are signing their life away?

What about those employers?

I know one such company and they killed my Daughter. I could not get a jury trial. Is that JUST in this country?
October 19, 2009 American Compass » 30 Republicans choose Halliburton over rape victim writes:

[...] 30 Republicans vote no? The Heritage Foundation would have you believe that the Franken Amendment sought to reward trial lawyers who raise frivolous suits against [...]
October 19, 2009 Travis, Ca writes:

The government, as any corporation, has a right to choose how to spend it’s money. This doesn’t demand no arbitration, it simply demands that people receiving government money not have Haliburton’s despicable policies!

As a taxpayer, I have no desire to see my money being funneled into a corporation that tries to hush up the rape of their employees by other employees!
October 19, 2009 Ria, DC writes:

This is a poorly written blog post, but that’s not the focus of my complaint. My complaint is how the author of this post can be so cold and cruel and calculating as to reference the case of Jamie Leigh Jones and still push his agenda (yes, his, note no female Republican senators could conscionably vote against this amendment) and fluffy philosophy above what every mentally healthy human being realizes: this young woman, and countless employees, should be safe in the workplace.

How the writer of this blog post can face himself in the mirror, I don’t know. To be honest, I don’t care if anybody trots out the “what’s good for the corporation is good for the people” line, but I am sickened and horrified by what happed to this young woman, and I am sickened and horrified that there are people of authority out there who do not care. This amendment is a no-brainer. The 30 senators who voted against it have shown themselves to be capable of pure evil — pure morally relativistic evil. I have never seen a better example of that than now. I cannot believe I almost voted for John McCain. I believed he would be a good leader but he stands for NOTHING. Either he has lost his mind or I was a fool to believe he stood for anything. I am flabbergasted and totally appalled that these men have revealed themselves to be so despicable, so thoughtless, and so entrenched in politics that they would be so casual about Ms. Jones’s ordeal. Talk about the banality of evil!

KBR, Halliburton, Blackwater — is there no end to revealing how far these contractors will go in revealing that they have more than their fair share of psychopaths and sociopaths?
October 19, 2009 Dan Francis, Upstate NY writes:

The explaination that Heritage gives may be correct according to the reading, but it is flat out wrong. Any contractor drinking at the public trough outta play fair - this case, they did not, period… lousy contracts with clause even close the one Halliburton had, has no place in American jurisprudence… even by GOP illogic!
October 19, 2009 Magmak1 writes:

This incident, and any defense of it on the basis of “law”, the flag, or anything else is abominable and disgusting. I thoroughly disagree that someone can be made to sign away their criminal and civil defenses in favor of employment and corporate profit. We have fallen far indeed. Think of it if it were your daughter, your wife, or even your self.

“It is a sign of our moral confusion that we are forced to have a conversation about whether a woman who has been gang-raped can go to court against her assailants. It is altogether disagreeable that we have to have it with inhuman entities that want us to grant them legal superiority in laws meant for humans.”

One would think humanity, civility and and some sense of right and wrong would override the nonsense I read above. But I forgot where we are living these days.

And, yes, I would say the same thing to my mother and father at the dinner table. Have you no decency?
October 20, 2009 Bobbie Jay writes:

I’d like to see the accountable held accountable with reprimand under the law. and the employer also reprimand the accountable.

Any violator working for government comes out of our pockets and there are alot of them we will never know about or be able to do anything about… look at the president’s administration. At least businesses have to take it at their expense and not at taxpayers… I don’t trust Franken or his narrowly written amendment.
October 20, 2009 Republicans for Rape? - PennJersey.info Forums writes:

[...] out why the Republicans voted against the amendment. This is all I’ve been able to find so far: The Truth About the Franken Amendment The Foundry __________________ You…asked for him, you got him, [...]
October 20, 2009 John Curry writes:

The heritige position seems disingenuous.
Should the firefighters in Connecticut have been held to binding arbitration? If they had, there would be no decision for RICCI v. DESTEFANO.
Binding arbitration may be appropriate for a resolution of a pay dispute, but this is a major crime against this woman, by her coworkers.
Did KBR/Halliburton take appropriate steps for her well being? It seems to me you can’t find the facts until an investigator (or a lawyer) demands the information under discovery.
Otherwise it is likely the full facts will not be known.
October 21, 2009 – Convenient Rape and the Senate writes:

[...] This is not even about justice or anything but lining plaintiff lawyers’ pockets. From Heritage: This amendment is a move towards the plaintiff bar’s longstanding goal of banning dispute [...]
October 21, 2009 Convenient Rape and the Senate | Right Wing News writes:

[...] This is not even about justice or anything but lining plaintiff lawyers’ pockets. From Heritage: This amendment is a move towards the plaintiff bar’s longstanding goal of banning dispute [...]
October 21, 2009 Convenient Rape and the Senate « Tool of the Patriarchy writes:

[...] This is not even about justice or anything but lining plaintiff lawyers’ pockets. From Heritage: This amendment is a move towards the plaintiff bar’s longstanding goal of banning dispute [...]
October 21, 2009 steme writes:

i have never seen such an overuse of the words “allegedly” and “[she] claims [that]” with regard to the jones case.
October 21, 2009 CD, Houston, TX writes:

This is one of the worst articles I’ve ever read. The author completely missed the larger picture on this issue. Al Franken is a hero, and it’s sad that he is. This should just be plain common sense and just changed with no argument. But instead our Republican Senators feel the need to protect the likes of KBR/Halliburton and deny the rights to a woman who was gang raped.

Arbitration or court hearing, that’s not what this is really about.
October 21, 2009 William, Arlington, VA writes:

CD in Houston: You totally miss the point. If you read the article, you’d understand that the woman in this case was not denied her day in court. Per the article:

“The courts ruled that Halliburton could not arbitrate her claims of assault and battery, intentional infliction of emotional distress, negligent hiring, retention and supervision of employees involved in the assault, and false imprisonment.”

That means that though some claims are required to go through arbitration, the woman in this case was able to bring suit for her attack. The underlying issue here is that her case is being used as an excuse to bring about a windfall for plaintiff’s attorneys — you should be able to see through the smokescreen and catch that intent.
October 21, 2009 Franken Amendment not about rape - it's about another giveaway to lawyers writes:

[...] Heritage Foundation’s James Sherk points out that despite Halliburton/KBR’s requirement, Jones hasn’t been prevented from seeking [...]
October 21, 2009 Steve, Cedarburg, WI writes:

William in Arlington I think you totally miss the point. It took 4 years for her to get her day in court, and Halliburton is appealing. One would think you’d be able to see through the smokescreen that the 30 Republicans threw up as their shallow reasoning for opposing this. The amendment is closely drawn and limited in scope. I thought conservatives were about individual responsibility, not hiding behind smokescreens. I for one am very disappointed in the Heritage Foundation’s response to this issue.
October 22, 2009 bradwarthen.com » Blog Archive » Graham and his vote on the Franken amendment writes:

[...] http://blog.heritage.org/2009/10/16/the-truth-about-the-franken-amendment/ [...]
October 22, 2009 James Sherk writes:

A lot of commentators misunderstand my point in this blog post. Rape is a terrible crime, and Jones’ allegations against Halliburton, if proven true, are indefensible. She would deserve both sympathy and justice. But the courts have ruled that she will get her day in court, and so the entire basis for a legislative fix for a problem that the courts have already addressed seems dubious at best.

The problem is that the Franken amendment goes far beyond ensuring that any future victims of such crimes also have access to the courts. The Franken amendment was not narrowly targeted at Jamie Jones’ case. It does not merely cover arbitration in cases of “sexual assault or harassment, including assault and battery, intentional infliction of emotional distress, false imprisonment, or negligent hiring, supervision, or retention.” It also affects all cases under Title VII of the 1964 Civil Rights Act.

Commentators rightly point out that the amendment does not literally ban arbitration. Rather, it bans contracts that require arbitration. Effectively, however, this amounts to the same thing. In covering Title VII the Franken amendment effectively bans arbitration. Legislation preventing employers from requiring arbitration has the same practical effect as legislation banning it outright. If employers - legally - cannot insist on arbitration they are left exposed to massive and unpredictable legal costs even when they have done nothing wrong.
October 22, 2009 Berdawn, Ohio writes:

I certainly hope this is parody and the author intended it for the Onion. pathetic, if not.
October 22, 2009 Wayne B writes:

“If employers - legally - cannot insist on arbitration they are left exposed to massive and unpredictable legal costs even when they have done nothing wrong.”

Large companies use legal costs as a bludgeon against smaller entities (smaller companies, consumers, farmers) EVERY DAY.

U.S. Supreme Court Will Decide On Whether The Guantanamo Bay Prisoners Can Be Released Into The United States

High court to hear Guantanamo case
By Greg Stohr, Bloomberg News

WASHINGTON - The Supreme Court agreed to decide whether judges can order the release of Guantanamo Bay prisoners into the United States, accepting an inmate appeal opposed by the Obama administration and setting up a separation-of-powers showdown.

The justices said yesterday that they would hear arguments from 13 Chinese Uighurs held without charges at the U.S. naval base in Cuba since 2002. The federal government, which acknowledges that the Uighurs pose no threat to the United States, has been trying for years to transfer them to another country.

The decision to hear the appeal suggests that the justices may be poised to reinforce rulings that since 2004 have limited the president's power to hold prisoners without judicial review. Kiyemba v. Obama will be the Obama administration's first clash at the Supreme Court over Guantanamo detention policies.

The administration, which urged against a Supreme Court hearing, might still be able to avert it by resettling the men in the next few months. Under the court's normal scheduling procedures, the justices would hear arguments early in 2010.

The Uighurs (pronounced WEE-gurs) are Turkic-speaking Muslims who say they have long been repressed by the Chinese government; U.S. officials have said that returning them to China would subject them to torture or death.

Palau, an island nation in the Pacific Ocean, has agreed to accept 12 of them, U.S. Solicitor General Elena Kagan told the Supreme Court last month. The 13th, Arkin Mahmud, has not been offered a home, his lawyer has told the court. Earlier this year, four other Uighurs were resettled in Bermuda.

White House spokesman Ben LaBolt had no immediate comment. President Obama has pledged to shut down the Guantanamo prison.

The Senate yesterday approved, 79-19, a Homeland Security spending bill that might complicate the case. The bill, which has passed the House and awaits Obama's signature, would allow Guantanamo inmates to be transferred to this country only to face trial.

Earlier this year, a federal appeals panel in Washington ruled 3-0 that a trial judge was wrong to order the Uighurs' release into this country. The panel cited "the ancient principle that a nation-state has the inherent right to exclude or admit foreigners and to prescribe applicable terms and conditions for their exclusion or admission."

The Supreme Court ruled 5-4 in 2008 that Guantanamo prisoners can challenge their detention in federal court by filing a habeas corpus petition. It said judges considering habeas petitions "must have the power to order the conditional release of an individual unlawfully detained."

Kagan defended the appeals ruling, arguing in court papers: "There is a fundamental difference between ordering the release of a detained alien to permit him to return home or to another country and ordering that the alien be brought to and released in the United States without regard to immigration laws."

The Uighurs contended that the lower-court ruling "subordinates judicial authority to relieve unlawful imprisonment to the discretion of the political branches."

The detainees are from Xinjiang, a Muslim region of China. Most or all were living in a camp in the Tora Bora mountains in Afghanistan when a U.S. bombing campaign destroyed the camp in 2001. They fled into Pakistan, were captured, and were eventually turned over to U.S. authorities.

The government says most of the captured Uighurs later acknowledged they had gone to the camps for weapons training to help them fight the Chinese government.

Vincent Warren, of the Center for Constitutional Rights, which represents the Uighurs, said: "If President Obama is truly committed to closing Guantanamo, he should help these men restart their lives here in the U.S. If we expect the rest of the world to help us ... , we have to start by taking some responsibility for cleaning it up ourselves."

Uighur Release

Related Case:
Barre v. Obama



Mohammed Sulaymon Barre is a Somali refugee who has been imprisoned in Guantánamo for nearly eight years after being abducted from his home in Pakistan by Pakistani authorities. Mr. Barre holds official refugee status granted by the United National High Commissioner for Refugees (UNHCR). He lived and worked freely as a refugee in Pakistan for years prior to his detention. He had been living at home with wife when the Pakistani authorities came in the middle of the night for him in early November 2001, soon after the U.S. invasion of Afghanistan. He is believed to have been sold to the United States for bounty at a time when the United States was offering sizable sums for the handover of purported enemies. Mr. Barre seeks to return to his family in Somaliland, the self-declared independent republic that is stable in an otherwise volatile Somalia. He has never been charged with a crime yet he remains imprisoned. CCR has filed both a habeas petition and petition under the Detainee Treatment Act (DTA) challenging the legality of Mr. Barre’s detention.

On June 26, 2008, less than two weeks after the Supreme Court’s historic decision in Boumediene v. Bush, which granted men detained in Guantánamo Bay the right to challenge their detention through a petition habeas corpus, CCR attorneys filed a habeas petition on behalf of Mohammed Sulaymon Barre in what was one of the first petitions to be filed in the D.C. District Court after Supreme Court’s opinion. Mr. Barre’s case is currently pending in the D.C. District Court. CCR had previously filed a petition on his behalf under the Detainee Treatment Act (DTA).
Description

Mohammed Sulaymon Barre is a Somali refugee who fled Somalia during the civil war in the early 1990s. The United Nations High Commissioner for Refugees (UNHCR) granted Mr. Barre refugee status in Pakistan. In Pakistan, Mr. Barre married and found a job working for a large international money transfer company called Dahabshiil. On November 1, 2001, the Pakistani authorities raided the home Mr. Barre shared with his wife and arrested Mr. Barre in the middle of the night. At the time the Pakistani authorities told Mr. Barre that he was merely being investigated because his work phone number appeared on a list of calls made by members of a suspect charitable organization, Al Wafaa, and he would be released in the morning. Instead, Pakistani officials kept Mr. Barre in their custody for four months. Mr. Barre is believed to have been sold for bounty to the United States at a time when the United States was offering thousands of dollars for the handover of suspected enemies. The extensive use of bounties was confirmed by then Pakistani President Pervez Musharraf, when he admitted in his autobiography that he received bounties in exchange for the transfer of many men to U.S. custody. Once in the custody of U.S. forces, Mr. Barre was sent to the U.S. military base at Bagram, where U.S. guards abused him and coercively interrogated him before transferring him to Guantánamo.

Mr. Barre has been in custody since November 2001, perhaps the longest imprisonment of any Guantánamo detainee. Mr. Barre is believed to remain in prison today largely because of his nationality. The single most important determinant of whether an individual remains in Guantánamo or has been released is his nationality. Mr. Barre is a refugee from wartorn Somalia, a country to which he cannot safely return. He seeks to return to his family in Somaliland, a self-declared independent republic in northern Somalia which has no official diplomatic relations with the United States.

On August 1, 2007, the Center for Constitutional Rights filed a Detainee Treatment Act (DTA) petition on behalf of Mohammed Sulaymon Barre in the D.C. Circuit Court. At that time, Congress had passed legislation which prevented Guantánamo detainees from challenging their detention in the District Court and offered only a very limited review of their detention though an appeal of the Combatant Status Review Tribunal’s (CSRT’s) decision regarding their “enemy combatant” designation. The petition challenged Mr. Barre’s designation as an enemy combatant and included the demand that the U.S. government provide access to critical information and allow CCR attorneys to visit their client. His case represented the intersection of many key issues surrounding the fate of the Guantánamo detainees: faulty hearing processes, the danger faced by many who may be returned to torture in their home countries, and the complicated path their cases must follow through the courts.

On June 11, 2008, the Supreme Court issued an historic decision in the case of Boumediene v. Bush, granting non-citizens detained in Guantánamo Bay the right to challenge their detention through the writ of habeas corpus. Less than two weeks later, the Center for Constitutional Rights filed a habeas petition on behalf of Mr. Barre, challenging his unlawful detention without trial in Guantánamo since 2002.

Despite being granted international mandate refugee protection from the United Nations High Commissioner for Refugees (UNHCR), Mr. Barre continues to languish in Guantánamo Bay. He is the final remaining refugee in Guantánamo recognized by UNHCR. Mr. Barre is the son-in-law of Muhamad Hussein Abdallah, another Somali refugee formally detained in Guantanamo. On October 31, 2008, Mr. Abdallah was transferred back to his home in Somaliland, where he now lives peacefully with his family.

The Center for Constitutional Rights continues to pursue Mr. Barre’s habeas corpus petition in the D.C. District Court while simultaneously advocating the UNHCR to assist with his immediate release from Guantánamo Bay.

Timeline

On August 1, 2007, CCR attorneys filed a Detainee Treatment Act (DTA) petition on behalf of Mr. Barre, a Somali man who holds refugee status granted by the United Nations High Commissioner for Refugees (UNHCR). The petition challenges his designation as an enemy combatant and includes the demand that the U.S. government provide access to critical information and allow CCR attorneys to visit their client.

On June 12, 2008, the Supreme Court of the United States ruled 5-4 in favor of the detainees in the consolidated cases of Boumediene v. Bush and Al Odah v. United States, by reversing the Court of Appeals decision, and granting men detained in Guantánamo the writ of habeas corpus.

On June 26, 2008, CCR attorneys filed a habeas petition on behalf of Mr. Barre challenging his unlawful and indefinite detention in Guantánamo Bay.

On January 22, 2009, President Barack H. Obama signed an Executive Order to close Guantánamo Bay within one year.
Attached Files

* 2008-7-1-Barre Habeas Petition.pdf
* Barre - 2pg profile.pdf
* 2008-7-3 BBC - Somali in GTMO for more than seven years.pdf