Wednesday, September 22, 2010

Hiding The Ball, Dodgers Style.

What's in a word, as the Bard saith?

Ordinarily not all that much-and the only reason it's here in a law enforcement blog is to highlight how important truth is and how destructive falsehood can become when the litigation fat is in the fire.

In this case it doesn't smell sweet, and if I had to take a guess someone's career practicing law is going to be cut short if there's any honor among the members of the Massachusetts bar.

It seems that in the case of McCourt v. McCourt, a single word was changed in a settlement agreement by Frank McCourt's attorney Larry Silverstein, after the agreement had been signed and notarized.

"B-b-but Sparky!" you say, "h-h-how could one leetle word make so much of a difference?"

It's simple, little feller. Silverstein changed the word "exclusive" to the word "inclusive", the hoped for effect of which was to excerpt the ownership of certain assets from the reach of California's community property law.

In this case, it was ownership of the Los Angeles Dodgers baseball club, now worth several hundred million dollars.

On the stand, Silverstein testified that he thought, in certain circumstances, it was OK to switch a word in a legal document after it had been signed and notarized. As it happened there were two versions of the document, and the legal team representing McCourt ux was never advised that the document had been "fixed" until shortly before trial, although this was known to Frank McCourt's legal sleaze machine for some time.

The effect of the change and substitution of a few letters is what's significant here.

Had it been a mere correction of a scrivener's error-a misspelled word or a dropped comma, say- I don't think any one would be too concerned but when the effect is to strip one party of ownership rights to an asset that is worth millions of dollars, that's when it starts drawing attention.

Mass. R. Prof Conduct 3.4(b) states that a lawyer shall not-shall not-falsify evidence. Comment 2 states in part

"Subject to evidentiary privileges, the right of an opposing party, including the government, to obtain evidence through discovery or subpoena is an important procedural right. The exercise of that right can be frustrated if relevant material is altered, concealed or destroyed. Applicable law in many jurisdictions makes it an offense to destroy material for purpose of impairing its availability in a pending proceeding or one whose commencement can be foreseen. Falsifying evidence is also generally a criminal offense."

Rule 3.3 also provides that a lawyer shall not knowingly

"...offer evidence that the lawyer knows to be false, except as provided in Rule 3.3 (e). If a lawyer has offered, or the lawyer's client or witnesses testifying on behalf of the client have given, material evidence and the lawyer comes to know of its falsity, the lawyer shall take reasonable remedial measures."

Monday, September 20, 2010

The Confederate Dollar Awards

Here at the Dougloid Towers we have decided on a new feature to 'liven things up' a little.

We're calling this the First Annual Confederate Dollar Award, for conduct well below the accepted standard for the genus planaria.

The 2010 nominee is the Calumet County, Wisconsin County Attorney.

We're going to file this under the heading of "What could this moron have been thinking?"

It seems that Calumet County, Wisconsin County Attorney Ken Kratz is going on indefinite medical leave in the wake of a scandal concerning him.

"B-b-but what scandal, Sparky?" you say.

Rest easy, little feller.

It seems that Ken, responsible for prosecuting a domestic violence case, sent the victim 30 or more text messages of a ....well....naughty manner over the course of three days.

The worst part is that they were smarmy.

Talk about using leverage over a woman in need of a helping hand.

I'd bet my last Confederate dollar that this wasn't his first time either.

Saturday, September 18, 2010

Dump The Body Across The Line and Ditch the Truck, Part II: State v, Serrato

State v. Serrato, no 08-0859 ((Iowa July 9, 2010)

As we reported back in June 2009 the case of Victor Serrato was surely headed for the Supreme Court of Iowa and we, as usual, were right.

Serrato was charged in Scott County with first degree murder in the death of Mimi Carmona, along with kidnaping and nonconsensual termination of a pregnancy thrown in for good measure. Serrato was convicted on all counts, and appealed.

Here's how we described the facts back then.

Everything centered around the Escorpion bar in Muscatine. Serrato's current girlfriend arrived at the bar and got into a fight with Carmona, who alleged that Serrato was the father of her pending bundle of joy.

Serrato was notified about the affray and headed to the bar to settle things with Carmona. A fight broke out in the parking lot between Carmona and Serrato and shortly after, they disappeared along with Serrato's truck.

Carmona's body was discovered in a ditch on the Rock Island side of the bridge the next morning. A plastic bag entwined in her hair bore DNA from herself and from Serrato.

The court of appeals also chose to disregard the testimony of a jailhouse informant who related damaging admissions that Serrato had made, and the way the murder truck disappeared courtesy of Serrato's brother Edgardo.

The court of appeals remanded the case for dismissal, on the theory that there was insufficient evidence to show that Serrato had the necessary malice or formed the requisite intent to kill in Iowa so as to confer jurisdiction.

The Iowa Supreme Court accepted the case for further review and reinstated the judgment of conviction. Noting that as a state of mind malice aforethought was rarely susceptible of direct proof but could be established by circumstantial evidence, and by inferences drawn from the conduct of the defendant and the attendant circumstances in the light of human behaviour and experience.

Although there were no eyewitnesses to the murder, the body was found in Illinois, and the exact location of the crime was not located, the conduct of the defendant in responding to phone calls, his movements during that time, and a physical altercation with the decedent in a public area demonstrated a fixed purpose to do physical harm that satisfied the inference of malice.

Thursday, September 16, 2010

Computer Screen Satisfies Written Request Requirement of 321J.6(1)

State v. Fischer, no. 09-0338 (Iowa July 23, 2010).

Fischer was arrested for operating while intoxicated and the arresting officer used the TraCS computer program on a laptop computer to administer the implied consent procedures.

As part of the procedure Fischer marked a box on the computer screen that said he consented to the request for specimen, and signed on the screen with a stylus. A breath sample produced a BAC of 0.157.

Fischer filed a motion to suppress the results, arguing that the TraCS system did not meet the 'written request' requirement of Iowa Code section 321J.6(1) (2007), and the Hancock County court bought his argument. This appeal followed.

The question before the court was whether use of a computer screen rather than a written document satisfied the 'written request' portion of the statute.

The Court determined that the written request is procedural and ensures that an accurate and reliable record of a pre-test request was made. It held that written-request requirement of 321J.6(1) was satisfied by the use of the computer screen.

Information about the TraCS system can be found at

Supremes: Let it Bleed

State v. McCullah, no. 08-0051 (Iowa, August 20, 2010).

McCullah attacked a jailer in the Polk County Jail and in the ensuing beat down several people were injured and bled all over each other.

McCullah was charged with four counts of inmate assault. The District Court concluded that conviction on the charge does not depend on whether the blood or other...ahem...bodily substances is from an inmate or otherwise.

Concluding that the statute was ambiguous, the court held that 708.3B requires that the employee of the jail must come into contact with blood or bodily substances not his own.

However, not to worry. Mr. McCullah is not going anywhere soon, at least not for the next fifty years or so, according to the fine folks at the department of corrections. His apprehension came from a cold DNA hit so you could suppose he felt put upon.