UPDATE: TEXAS JAIL DEATHS MULTIPLY

Since this law firm filed suit in the death of Richard Hollas Rogge in a Richmond, Texas holding cell, at least two other jail deaths have occurred in the Houston area.  On Saturday, November 19, Richard Gomez reportedly hanged himself in the Houston City Jail after having been arrested for public intoxication. On Thanksgiving morning, Kyle Wayne Collins was found dead in a cell at the Pasadena jail. He reportedly had been arrested the day before under suspicion of driving while intoxicated.  A police spokesman said that officers took Collins to a hospital because he appeared to be highly intoxicated. They then put him into a cell and left him there overnight. When officers returned in the morning to place another prisoner in the same cell, they found Collins dead.

Other recent deaths in Texas jails also have come to the attention of this firm.  On May 24, 2011, Tarrant County Jail officials found Kaleb Fitzgerald unresponsive in his cell, where he had been on suicide watch. He was pronounced dead later at a hospital. Authorities say he choked himself.

In September of this year new details surfaced in the death of Lisa Vela in a holding cell at the Aransas Pass Police Department.  Vela had been arrested on suspicion of driving under the influence. Another prisoner told the media that, immediately before her death, Vela “was yelling in pain and they never checked on her.”  Police said that they had checked on her during the night but admitted that an overdose might have caused her death.

In February of this year, Amy Lynn Cowling died in the Gregg County Jail in Longview “after a day of wailing and seizures.” On Christmas Eve police pulled her over for speeding and arrested her on outstanding warrants involving minor theft and traffic tickets. According to reports, she “was bipolar, methadone dependent and had just one kidney. She took a raft of medications every day. For the five days she was in Gregg County Jail, Cowling and her family members pleaded with officials to give her the medicines that sat in her purse in the jail’s storage room. They never did.” It later was determined that a jail observation log had been falsified. A jail employee was arrested and charged. Others were fired or resigned.  Reportedly, there have been nine deaths at that facility since 2005.

In September 2010, Earl Handy, Jr. was found hanging in his cell in the MontgomeryCounty Jail in Conroe. “Authorities said Handy, who was deaf, was housed in a segregation cell for medical reasons.”

In August of 2010 John Wesley Thomas reportedly hanged himself in the DeWitt County Jail in Cuero. He was a known suicide risk, having attempted suicide before while in custody.

Both constitutional and statutory law provide that cities and counties that are holding a person before trial are responsible for their well-being, including seeing that their serious medical needs are met, and that they are protected from harm, even from a risk of suicide, a risk that has grown since the U.S. greatly reduced the practice of putting persons with mental problems into psychiatric institutions.  As the courts have stated, “Pretrial detainees and other prisoners have the right ‘to receive medical treatment for illness and injuries, which encompasses a right to psychiatric and mental health care, and a right to be protected from self-inflicted injuries, including suicide.’” Cities, counties, and their officers can be held liable for being deliberately indifferent to a known substantial medical need or suicide risk of a person held in jail.

This law firm currently is investigating and prosecuting such cases.

Posted in Civil Rights, Civil Rights Lawyer, Neil C. McCabe, Personal injury lawyer, Texas, The McCabe Law Firm, Wrongful death lawyer | Tagged , , , , , , , , , , , , , , , , , , , , | Leave a comment

CIVIL RIGHTS LAWYER

Terms such as “civil rights,” “civil liberties,” and “human rights” apply to rights to which persons are entitled because they are citizens or simply because they are human beings.  Such rights protect against undue interference with a person’s physical or mental integrity and protect against discrimination on grounds such as race, sex, sexual orientation, and religion.  In the U.S., constitutional and statutory provisions exist to provide protection, and sometimes a person may bring a lawsuit to vindicate such rights.

Mr. McCabe has been involved in a number of important civil rights cases over the years.  Acting pro bono (for public benefit and without pay) and at the request of a civil rights organization, he wrote an amicus curiae (“friend of the court”) brief on which a panel of the 14th Court of Appeals relied in striking down the Texas anti-homosexual-conduct statute as a violation of civil rights.  When the full 14th Court reversed the panel decision, the dissenters again relied on Mr. McCabe’s amicus brief in support of civil rights. That case went to the U.S. Supreme Court, which upheld the civil rights of homosexuals, reversed the full 14th Court, and struck down the Texas statute in the landmark 2003 case of Lawrence v. Texas.

Mr. McCabe later joined in a pro bono amicus brief to the Massachusetts Supreme Court in a civil rights case that resulted in judicial recognition of the civil right to same-sex marriage. (A link to a copy of the amicus brief can be found here.

Recently, Mr. McCabe filed suit alleging that the City of Richmond, Texas and two of its police department employees violated the Texas Tort Claims Act and the federal civil rights of Richard Hollas Rogge, a 29-year-old Texas A&M graduate, who was found hanging in the Richmond lock-up after being arrested for DUI. A closed-circuit video captured the entire 18-minute death scene while the Richmond officers apparently failed even to glance at the video monitor. The police chief fired two employees, but the City Commission ordered them reinstated. In prosecuting the case, Mr. McCabe has enlisted the aid of the law firm of Tritico and Rainey.

Posted in Civil Rights, Civil Rights Lawyer, Crime, Neil C. McCabe, Richard “Racehorse” Haynes and Associates | Tagged , , , , , , , , , , , , , , | Leave a comment

DISCIPLINE FOR JUDGE ADAMS FOR “DISCIPLINE” OF DAUGHTER?

UPDATED! As I pointed out earlier on this site, I have been involved more than once in defending judges. But it is difficult to know what to say about the following Houston Chronicle story today and the accompanying YouTube video:

Aransas County officials and Rockport police are reviewing a video recently posted on YouTube that shows a county court-at-law judge mercilessly beating his teenage daughter with a belt and cursing her as his former wife looked on.

“Obviously it is a very disturbing video. We in my office as well as everyone on earth is taking a look at it, at this time,” said Aransas County Attorney Richard Bianchi, who confirmed that the man wielding the belt in the video is County Court-at Law-Judge William Adams.

The seven-minute, 35-second video is dated 2004 and was purportedly posted by the judge’s daughter, Hillary Adams, for acquiring music and games on internet sites her parents disapproved of, according to a note attached to it….

Authorities say that Adams will not be charged with a crime because too much time has passed. Putting aside any issue of criminal charges or the passage of time, however, I see a big issue presenting itself, i.e. does private behavior like that depicted in the video constitute sanctionable misconduct by a lawyer or a judge?

Rule 8.04(a)(2) of the Texas Disciplinary Rules of Professional Conduct provides that a lawyer shall not commit a “serious crime” or any other criminal act reflecting adversely on the lawyer’s honesty, trustworthiness, or fitness. In 2004, Formal Opinion 04-433 by the ABA Commission on Ethics and Professional Responsibility noted that lawyers have been found to be in violation of such a rule because of domestic violence. Texas uses the term “family violence” and defines it in Section 71.004 of the Family Code.

The Texas definition of child abuse includes “physical injury that results in substantial harm to the child, or the genuine threat of substantial harm from physical injury to the child.” As the Texas Attorney General’s website explains the definition of “child abuse,” it “specifically excludes ‘reasonable’ discipline by the child’s parent, guardian, or conservator; corporal punishment is not in itself abusive under the law. An act or omission is abusive only if ‘observable and material impairment’ occurs as a result, or if it causes ‘substantial harm,’ or exposes the child to risk of substantial harm.” Interestingly, the Attorney General omits the part of the statutory definition that refers to “the genuine threat of substantial harm from physical injury.” The reader might wish to listen to what Judge Adams threatened to do to his daughter and decide whether or not it included such a genuine threat. I do not recommend that casual readers view the video.

Article V, section 1-a(6)A of the Texas Constitution provides that a judge can be disciplined or removed for “willful or persistent conduct that is clearly inconsistent with the proper performance of his duties or casts public discredit upon the judiciary or administration of justice.” Canon 4 of the Texas Code of Judicial Conduct provides that a judge shall conduct all of his activities off the bench so that they do not cast reasonable doubt on his capacity to act impartially as a judge.

Aside from all that, as shown by the following case law, which is worth quoting at length, a judge’s private life can be the basis for judicial discipline:

Respondent next contends that the majority of his misdeeds were conducted not in his official capacity as a judge, but as a private citizen and should not be sanctionable. The Texas Code of Judicial Conduct does not distinguish between the two. Canon 1 states that a judge should participate in establishing, maintaining, and enforcing high standards of conduct and should personally observe those standards so that the integrity and independence of the judiciary is preserved. Canon 2 states that a judge should act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary. Neither of these Canons limit[s] application of these standards nor suggest[s] that they are to be observed only when the judge is on the bench or acting in some official capacity.

Does the Code of Judicial Conduct intrude into a judge’s private life? Most definitely. But that is a path chosen when the decision to seek office is made. A judge must observe the high standards promulgated by the Code of Judicial Conduct both on and off the bench in order to maintain the integrity of the judiciary:

The ethical standards governing judges’ off-the-bench conduct recognize that judges play a unique role in society. Respect for those who serve as judges and for their integrity and independence is essential if the public is to believe that justice is being done in the courts. Restrictions on judges’ extra-judicial conduct are necessary to avoid both conduct and relationships that convey the appearance that judges will not be impartial in their judicial functions.

In re Lowery, 999 S.W.2d 639, (Tex.Rev.Trib. 1998, pet.denied).

Adams, whose court has jurisdiction over cases of child abuse, already was a judge at the time of the beating. Reportedly he has agreed to take a paid leave of absence. He also has told the media that the incident looks worse than it was and that he does not expect to be disciplined. On that last point, however, we may be permitted to differ with the judge.

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D.A. LYKOS A POLITICAL TARGET OF RUNAWAY GRAND JURY?

HPD Bat VanOn his Defending People blog, Mark Bennett suggests that the current grand jury investigation into the HPD breath alcohol testing (“BAT”) vans and the pending contempt hearing for 2 Assistant D.A.’s regarding possession of grand jury transcripts might have as their real target Judge Pat Lykos, the Harris County District Attorney, and that conspiracy theorists might think it all is a scheme to sully Judge Lykos’s reputation in preparation for an electoral challenge by Kelly Seigler, who unsuccessfully ran against Lykos the last time around.  I think that the conspiracy theorists might be right, but it could be that my own experience makes me think in that cynical sort of way.

Back in the 90’s the Ft. Bend County D.A., Jack Stern, faced a proceeding brought to remove him from office.  It just so happened that, because of a rent in the fabric of the Ft. Bend universe, Stern, a Democrat, had gotten elected. Because that could not be allowed to stand, a way had to be found to get rid of him.  Therefore, a group of citizens filed a civil ouster action against Stern, on the grounds that he was harboring a felon.  Believe it or not, the supposed felon, who had been accused of passing bad checks, was Stern’s wife, who happened to be living with him.

That ouster effort was not going anywhere, but, fortunately for the insurgents, a juicy new opportunity presented itself, and it had to do with a former topless dancer/arson defendant, the Sheriff, a deputy, the firing of a popular Assistant District Attorney, and … wait for it … grand jury transcripts.

Stern’s accusers said that he was trying to use investigation of the dancer to get rid of the Sheriff.  In his grand jury testimony, the Sheriff detailed his one-night tryst with the dancer. The Sheriff denied a roadside meeting with two deputies, including a married one who was having an affair with the woman.

When Stern was attacked for his office’s handling of the grand jury investigation, he released grand jury transcripts to the public.  That release of grand jury testimony became the focus of the effort to oust Stern from office.  In the ouster action, jurors heard “taped grand jury testimony in which the Fort Bend County sheriff described a one-night stand that began with flowers from a topless dancer. [The Sheriff] said he quickly dropped the affair last spring after learning of her profession — and that she was dating one of his deputies. But he repeatedly denied to grand jurors that he knew about an arson investigation of her at the time they dated, or that he had discussed the case with two other officers a week before testifying to the grand jury.”

As the Chronicle reported, “although expert witnesses agreed during the trial that no law or statute prevents a district attorney from releasing grand jury testimony, a statement calling such an act unlawful was written into the charge.”  [I was the expert witness.]   Following that instruction, the jury voted to remove Stern from office.  An appellate court upheld the removal, based on unwritten “policy.” See Stern v. State ex rel. Ansel, 869 S.W.2d 614, 621 – 22 (Tex. App. – Houston [14th Dist.] 1994, writ denied).  In response to the Stern case, the legislature immediately wrote some policy into the statutory law to cover the situation of a D.A.’s release of grand jury testimony.  Tex. Code Crim. P. art. 20.02 (c).

The former dancer went on to sue the County for violation of her civil rights. The County settled the case by paying her $80,000.

Now it appears that we have a Harris County matter with a grand jury and a judge sniffing after a D.A., with breath tests and grand jury transcripts under the noses of investigators, and with politics in the wind, as usual.  But no scent of a dancer, yet.

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DRONE SURVEILLANCE BY POLICE RAISES PRIVACY FEARS

The Houston Chronicle reports on an announcement by the Montgomery County Sheriff’s Office that it intends to employ an unmanned helicopter “to hunt criminals and find missing persons” and “for fire issues.” Channel 2 News warns us that the drone could carry weapons and asks, “Are they keeping us safe or invading our privacy?

Channel 11 news notes that “There have been some privacy concerns in other parts of the country where authorities have used unmanned aircraft, but no one KHOU 11 News talked to had those concerns.” The ACLU points to “privacy concerns,” without saying exactly what those concerns are or how something observable from a helicopter can be considered “private.”  A Sheriff’s deputy points out, however, that this is nothing new, and a drone is “merely a more cost-effective manner of using air resources.  It’s nothing more than what’s already available” in the form of manned helicopter surveillance.

The Sheriff’s Office has the better view, literally and legally, but the law is not completely clear-cut.  In the 1980’s, the United States Supreme Court addressed the constitutionality of surveillance from both fixed-wing airplanes and helicopters.  In 1989, I analyzed those cases in an article entitled “From Open Fields to Open Skies: the Constitutionality of Aerial Surveillance,” which was published in the Search and Seizure Law Report. (According to the Law Enforcement Master Bibliography, my article now seems to be available in the Narc Officer publication.)

The helicopter case was Florida v. Riley, 488 U.S. 445 (1989).  In that case the police got an anonymous tip that Riley was growing pot on his property.  Unable to observe the contents of his greenhouse from ground level, they obtained a helicopter, circled twice over the greenhouse at a height of 400 feet, and got a warrant based on observations of weed in the greenhouse.  The police found pot when they executed the warrant.

Four Supreme Court justices in the lead plurality opinion said that the helicopter observation was okay without a warrant, because no FAA regulations were broken, there was nothing to show that such overflights were uncommon in the area, there was no evidence that the helicopter interfered with the normal use of Riley’s property, that intimate details connected with the use of his property were observed, or that there was undue noise, wind, dust, or threat of injury.  Four dissenting justices would have ruled that the helicopter surveillance was unconstitutional without a warrant.

Justice O’Connor agreed with the plurality in that Riley had not shown that helicopter overflights were uncommon in his neighborhood.  In her view, however, “In determining whether Riley had a reasonable expectation of privacy from aerial observation, the relevant inquiry … is not whether the helicopter was where it had a right to be under FAA regulations. Rather, … we must ask whether the helicopter was in the public airways at an altitude at which members of the public travel with sufficient regularity that Riley’s expectation of privacy from aerial observation was not “one that society is prepared to recognize as reasonable.’” If Riley had made a showing that members of the public rarely or never flew over his home in helicopters, then he would have established that he had a reasonable expectation of privacy against police helicopter surveillance.

Justice O’Connor’s concurring opinion is controlling, because it was needed for the four justices in the plurality to have a majority and because the dissenters appeared to regard the aerial surveillance as unconstitutional or to disagree only with O’Connor’s refusal to give Riley a chance to make a showing of the infrequency or non-existence of prior helicopter overflights by members of the public when the case was sent back down to the court below. As Justice Brennan made clear in his dissenting opinion, five justices agreed that “the reasonableness of Riley’s expectation depends, in large measure, on the frequency of nonpolice helicopter flights at an altitude of 400 feet.”

So, if a police drone flies overhead, and the police see something that gives them probable cause for a warrant to search your home or its immediate surroundings, you might be able to challenge the warrant if you can show that members of the public have not flown over your home before.  If the court accepts the reasoning of five of the justices in the Riley case, it will not be sufficient for the government to show that police or other government helicopters have flown over in the past.

Posted in Montgomery County Texas, The Supreme Court | Tagged , , , , , , , , , , , , , , , , , , , | Leave a comment

AL-AWLAKI, DUE PROCESS, AND PRESIDENTIAL POWER

Anwar al-Awlaki is dead, killed by rockets fired from a U.S. drone over Yemen.  He was a U.S. citizen, having been born in New Mexico.  Many have expressed concerns about al-Awlaki’s “due process” rights, and some have recalled the passage from A Man for All Seasons, in which the Sir Thomas More character says that he would give even the Devil the protection of law, for the sake of More’s own safety. As the More character put it, “What would you do? Cut a great road through the law to get after the Devil? … And when the last law was down, and the Devil turned round on you – where would you hide, … the laws all being flat?”

I love that speech, even though the easy answer to it is that the Devil, having turned round, will not respect any laws. No law will restrain the Devil, and More will have achieved no safety by his high-mindedness and his failure to act. Of course, that is exactly what happened to More.  The narrator tells us at the end of the film that “Thomas More’s head was stuck on Traitors’ Gate for a month. Then his daughter, Margaret, removed it and kept it till her death.” Other sources say that his head was parboiled before being publicly displayed and that his daughter obtained the head by bribing the man whose job it was to throw it into the Thames.

In January 2010 President Obama publicly stated that the U.S. is at war with al-Qaeda and that we will do whatever it takes to defeat them. The President made those statements about al-Qaeda after the failed attempt by the alleged “underwear bomber” to blow up an airliner with hundreds of persons aboard as it was approaching an airport in Detroit on Christmas Day 2009. According to a Homeland Security/FBI bulletin, al-Awlaki was directly involved in that plot and in another failed plot in October 2010 to blow up cargo jets. The bulletin stated that al-Awlaki personally showed the underwear bomber how to detonate the bomb.

If al-Awlaki’s alleged actions were simply a criminal matter and if the U.S. could have apprehended him before he endangered the lives of more innocent Americans, then the due process clause of the Fifth Amendment should have provided him protection in an American court.  As one court already has held with regard to al-Awlaki, however, due process protections in American courts sometimes give way to the constitution’s grant of authority to the President over foreign and military affairs.

The court decision in the unsuccessful lawsuit brought by al-Awlaki’s father to remove his son from the government’s list of persons targeted for killing explains the government’s position.  The decision is worth quoting at length:

On July 16, 2010, the U.S. Treasury Department’s Office of Foreign Assets Control (” OFAC” ) designated Anwar Al-Aulaqi as a Specially Designated Global Terrorist (” SDGT” ) in light of evidence that he was ” acting for or on behalf of al-Qa’ida in the Arabian Peninsula (AQAP)” and ” providing financial, material or technological support for, or other services to or in support of, acts of terrorism[.]” See Defs.’ Mem. at 6-7 (quoting Designation of ANWAR AL-AULAQI Pursuant to Executive Order 13224 and the Global Terrorism Sanctions Regulations, 31 C.F.R. Part 594, 75 Fed. Reg. 43233 (July 16, 2010)) (hereinafter, ” OFAC Designation” ). In its designation, OFAC explained that Anwar Al-Aulaqi had ” taken on an increasingly operational role” in AQAP since late 2009, as he ” facilitated training camps in Yemen in support of acts of terrorism” and provided ” instructions” to Umar Farouk Abdulmutallab, the man accused of attempting to detonate a bomb aboard a Detroit-bound Northwest Airlines flight on Christmas Day 2009.

Al-Aulaqi v. Obama, 727 F.Supp.2d 1, 10 (D.D.C. 2010).  (Note that the spelling of the plaintiff’s name differs from the one used for his son in the media.)  The government declined to confirm or deny that it had a standing order to kill al-Awlaki.  The district court held that it could not reach the merits, because the father lacked standing and because the case involved a political question:

[A]s the D.C. Circuit has explained, ” [i]t is not the role of judges to second-guess, with the benefit of hindsight, another branch’s determination that the interests of the United States call for military action.” Such military determinations are textually committed to the political branches …. The D.C. Circuit has on several occasions dismissed claims on political question grounds where resolution of those claims would require a judicial determination as to the propriety of the use of force by U.S. officials against a specific individual abroad.

The district court cited several cases involving the deaths of foreign individuals.

The district court recognized, however, that “it does not appear that any court has ever-on political question doctrine grounds-refused to hear a U.S. citizen’s claim that his personal constitutional rights have been violated as a result of U.S. government action taken abroad.”  The court held, “Nevertheless, there is inadequate reason to conclude that Anwar Al-Aulaqi’s U.S. citizenship-standing alone-renders the political question doctrine inapplicable to plaintiff’s claims.”

The court characterized its conclusion as “somewhat unsettling,” but held, nevertheless, as follows:

[T]here are circumstances in which the Executive’s unilateral decision to kill a U.S. citizen overseas is “constitutionally committed to the political branches” and judicially unreviewable …. [T]his case squarely presents such a circumstance. The political question doctrine requires courts to engage in a fact-specific analysis of the “particular question” posed by a specific case, and the doctrine does not contain any “carve-out” for cases involving the constitutional rights of U.S. citizens.

The court further explained that,

Contrary to Plaintiff’s assertion, in holding that the political question doctrine bars plaintiff’s claims, this Court does not hold that the Executive possesses ” unreviewable authority to order the assassination of any American whom he labels an enemy of the state.” Rather, the Court only concludes that it lacks the capacity to determine whether a specific individual in hiding overseas, whom the Director of National Intelligence has stated is an “operational” member of AQAP, presents such a threat to national security that the United States may authorize the use of lethal force against him. This Court readily acknowledges that it is a ” drastic measure” for the United States to employ lethal force against one of its own citizens abroad, even if that citizen is currently playing an operational role in a “terrorist group that has claimed responsibility for numerous attacks against Saudi, Korean, Yemeni, and U.S. targets since January 2009,” But … a determination as to whether “drastic measures should be taken in matters of foreign policy and national security is not the stuff of adjudication, but of policymaking.” Because decision-making in the realm of military and foreign affairs is textually committed to the political branches, and because courts are functionally ill-equipped to make the types of complex policy judgments that would be required to adjudicate the merits of plaintiff’s claims, the Court finds that the political question doctrine bars judicial resolution of this case.

I agree with the district court’s analysis that, in some cases, the constitutional text and structure of our federal government can preclude a court’s examination of an individual rights issue, however interesting that issue might be.  In the case of al-Awlaki in particular, separation of powers trumps due process.

[Note: For clarity, I have omitted internal citations to other court decisions and documents in the quotations from the court’s decision in Al-Aulaqi v. Obama.]

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JURY ACQUITS FORMER SURGEON OF ASSAULTING WIFE

Today the jury acquitted former hand surgeon Michael Brown of the charge of pulling his wife’s arm.  Really, he was charged with pulling his wife’s arm during an argument that began when she woke him up and accused him of having sex with someone else the night before.  He faced a possible ten years in prison if convicted, because he had a prior offense of assaulting a prior wife.

The jurors immediately granted interviews in which they said that they did not believe his wife and some other witnesses called by the prosecution.

One juror said that they stopped believing Brown’s wife, Rachel, after catching her in her first lie, when Rachel said she did not curse during the confrontation.  Other witnesses testified that she was cussing up a storm.  After that, the jurors questioned her whole story. The jury thus illustrated the maxim “Falsus in uno, falsus in omnibus” (“False in one thing, false in all”). According to another juror, Rachel’s lie “didn’t make Doctor Brown innocent, in my eyes or anybody else’s, but it did show enough doubt, for us.” They said that the fact that she had an affair with former Astros great Jeff  Bagwell did not play a part in the decision.

My congratulations to his excellent trial lawyers, Dick DeGuerin and Brian Wice, and to the jury for taking seriously the presumption of innocence and the standard of proof  beyond a reasonable doubt.

Posted in Domestic Violence, Harris County Texas, Neil C. McCabe, The McCabe Law Firm | Tagged , , , , , , , , , , , , , , , , , | Leave a comment

COMMISSIONER EVERSOLE RESIGNS – PLEA DEAL LOOMS?

Indicted Harris County Commissioner Jerry Eversole has announced his resignation, effective October 1. Eversole had held the office for twenty years. In March, the trial of Eversole and real estate developer Michael Surface on charges of bribery, tax evasion, and conspiracy ended in a mistrial.  In July the Houston Chronicle reported that Eversole had only $51,000 left in his campaign fund, after spending over a million dollars on legal fees.  On Monday the government obtained a new indictment of Eversole on a single count of making a false statement to federal investigators that he had received only two gifts from Surface as birthday presents and that those were the only things of value that he had received from Surface. If the re-indictment and the resignation do not signal a plea bargain in the offing, I do not know what would.

Download (PDF, 163.2KB)

Posted in Crime, Harris County, Harris County Texas, Jerry Eversole, Neil C. McCabe, The McCabe Law Firm | Tagged , , , , , , , , , , | Leave a comment

REAL ENRON WHISTLEBLOWER GETS PAID – PUTS FAKE TO SHAME

Largely unnoticed earlier this year, the real whistleblower in the Enron scandal received his reward of  $1.1 million for alerting the IRS to the fact that the company was using abusive tax practices to generate fake income. According to the whistleblower, “[t]he alleged tax fraud allowed Enron to evade taxes on more than $600 million in income and to report more than $300 million of bogus profit.”
The whistleblower estimated that “he had spent thousands of hours over several years educating and prodding the IRS to take action on various abuses” and that “the numerous fraudulent schemes on which [he] provided original information involved over $10 billion of taxable income.”  The whistleblower has remained unknown to the public all this time, even testifying anonymously before a congressional committee.

Contrast that whistleblower with Sherron Watkins, the woman who wrongly has been celebrated around the world as the “Enron Whistleblower.”  In reality, Watkins was no whistleblower.  One critic colorfully put it this way:

A whistle-blower, literally speaking, is someone who spots a criminal robbing a bank and blows a whistle, alerting the police. That’s not Sherron Watkins.

What the Enron … vice president did was write a memo to the bank robber, suggesting he stop robbing the bank and offering ways to avoid getting caught. Then she met with the robber, who said he didn’t believe he was robbing the bank, but said he’d investigate to find out for sure. Then, for all we know, Watkins did nothing, and her memo was not made public until congressional investigators released it six weeks after Enron filed for bankruptcy.

Actually, the story of Sherron Watkins is worse than that, because we now know that she did not do nothing. Armed with inside knowledge about Enron’s wrongdoing, which she did not make available to the authorities or to the public, she sold her Enron shares.

That looks more like insider trading than it does like heroism. The SEC defines the practice in the following way: “Illegal insider trading refers generally to buying or selling a security, in breach of a fiduciary duty or other relationship of trust and confidence, while in possession of material, nonpublic information about the security.”  Under questioning by a congressional committee, “Ms Watkins admitted that she had sold shares worth $17,000 in 2002 after learning of the firm’s financial problems and that this action was improper.”    Actually, she reportedly “sold about $30,000 of Enron stock in late August 2001 and then netted another $17,000 from stock sales in September,” all of that after writing a letter to Ken Lay about the financial misconduct of the company.  When questioned by lawyers for Lay after the Enron meltdown, Watkins admitted “she wishes she hadn’t sold the stock but stopped short of admitting to committing insider trading. ‘I had information that the public didn’t have,’ Watkins said. ‘I wish I hadn’t sold. I don’t know if a crime was committed.’”

When asked on NPR Radio why she had not been criminally charged with insider trading, Watkins had no good explanation.

BLOCK: When you took the stand to testify in the Enron trial, one thing that came up was the fact that you had sold your own stock in Enron in 2001 and you said on the stand that you had more information than the marketplace did, that that sale was not exactly proper. But you were not charged with insider trading.

Ms. WATKINS: That’s right.

BLOCK: Why is that?

Ms. WATKINS: Well, I don’t know. I think part of it is because I wasn’t making, you know, public statements to the contrary. That I was a vice president of Enron, but not in the management circles of the company. You know, I wish I wouldn’t have sold. I usually get a little grief because I did, because I knew there were questionable accounting practices in place and, you know, the people who I sold to did not. But I can’t, you know, I can’t get my head into the government’s head as to why they charged some people and why not others.

Despite all this, Sherron Watkins was touted as the “Enron Whistleblower” in publications such as Time, even though Time acknowledged that the title is bogus:

In the news media, it is “Enron whistle-blower” Sherron Watkins, even though Watkins never really blew a whistle. A whistle-blower would have written that letter to the Houston Chronicle, and long before August; Watkins wrote it to Ken Lay, and warned him of potential whistle-blowers lurking among them. (She quotes one of them as lamenting, “We’re such a crooked company.”)

The shriek of Sherron Watkins’ letter didn’t reach public ears until five months after she wrote it, and even in August concerns like hers seem to have been old news in corner offices, and probably some cubicles, at both companies. And she may well have written it purely to cover herself, to protect that resume when the inevitable happened — the “CYA” letter is as old as business itself.

Nevertheless, Time named her as one of its “Persons of the Year.” That honor and others are cited on her website, where she says that she speaks on “ethics, leadership, and courage around the globe.”

The answer to the question why Sherron Watkins has been celebrated as heroic instead of prosecuted as an inside trader probably is that, with all of the apparently sleazy behavior exposed in the Enron mess, we desperately needed a heroine whistleblower, even a fake one.

Posted in Neil C. McCabe, White Collar Crime | Tagged , , , , , , , , , , , , , , , , , , , , , | Leave a comment

EX-ASTRO BAGWELL NOT LIKELY TO TESTIFY AT TRIAL

Yesterday the lawyers for former hand surgeon Michael Brown wanted to question his wife, Rachel, about her affair with former Astro Jeff Bagwell.  They have Bagwell under subpoena and would like to call him to the stand.  Judge Jim Wallace was having none of that.  According to an amusing article in the Houston Press, the defense position was that, because “the assault stemmed in part over Rachel’s angry suspicion that her husband was having an affair, the jury should have been told that Rachel was herself having an extramarital affair.” According to the Houston Chronicle, defense lawyers argued to Judge Jim Wallace that the evidence was relevant because Rachel “had painted herself as a ‘blameless, wronged woman.’”  (The Chronicle article has a photo of Rachel, Michael, and lead defense counsel in the same shot.)

It is understandable that the defense would want to introduce such titillating details.  After all, one local TV station could not resist spicing up its website with the following lead: “Sex, voicemails and Bagwell’s girlfriend: The wild trial of Dr. Michael Brown.” They filled the story in with this important news:

Remember that hand surgeon whose TV commercials showed his daughter saying “daddy’s baby girl?” It turns out daddy had a foul mouth and a bad temper. And mommy scrawled a nasty word on the hood of one of daddy’s expensive sports cars.

According to Rachel’s testimony outside the presence of the jury, the affair with Bagwell did not begin until 5 months after the alleged assault and after the Browns separated.  That made the admissibility of the affair doubtful and illustrated the difference between wantin’ and gettin’.  Undeterred by the court’s ruling, defense lawyers told reporters outside the courtroom that they believed the affair began before the alleged assault and that they have not given up on the issue.

Rachel tried to explain away two affidavits that she signed after the alleged assault, in which she recanted and asked the prosecutors not to pursue the case.  Defense counsel responded by getting her to admit that she is fluent in English.

Today the prosecution put on the stand Michael’s step-daughter, who was a witness to the alleged assault.

Posted in Crime, Domestic Violence, Neil C. McCabe, The McCabe Law Firm | Tagged , , , , , , , , , , , , , , , , , | Leave a comment