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White House Letter Rejecting Subpoenas
U.S. Legal News | 2007/06/28 15:12

President Bush, moving toward a constitutional showdown with Congress, asserted executive privilege Thursday and rejected lawmakers' demands for documents that could shed light on the firings of federal prosecutors. Bush's attorney told Congress the White House would not turn over subpoenaed documents for former presidential counsel Harriet Miers and former political director Sara Taylor. Congressional panels want the documents for their investigations of Attorney General Alberto Gonzales' stewardship of the Justice Department.

The Democratic chairmen of the two committees seeking the documents accused Bush of stonewalling and disdain for the law, and said they would press forward with enforcing the subpoenas.

"With respect, it is with much regret that we are forced down this unfortunate path which we sought to avoid by finding grounds for mutual accommodation,'' White House counsel Fred Fielding said in a letter to the chairmen of the Senate and House Judiciary Committees. "We had hoped this matter could conclude with your committees receiving information in lieu of having to invoke executive privilege. Instead, we are at this conclusion.''

Thursday was the deadline for surrendering the documents. The White House also made clear that Miers and Taylor would not testify next month, as directed by the subpoenas, which were issued June 13. The stalemate could end up with House and Senate contempt citations and a battle in federal court over separation of powers.

"Increasingly, the president and vice president feel they are above the law,'' said Senate Judiciary Chairman Patrick Leahy, D-Vt. He portrayed the president's actions as "Nixonian stonewalling.''

His House counterpart, Judiciary Chairman John Conyers, D-Mich., said Bush's assertion of executive privilege was "unprecedented in its breadth and scope'' and displayed "an appalling disregard for the right of the people to know what is going on in their government.''

In his letter, Fielding said Bush had "attempted to chart a course of cooperation'' by releasing more than 8,500 pages of documents and sending Gonzales and other senior officials to testify before Congress. The White House also had offered a compromise in which Miers, Taylor, White House political strategist Karl Rove and their deputies would be interviewed by Judiciary Committee aides in closed-door sessions, without transcripts.

Leahy and Conyers rejected that offer. Republican Sen. Orrin Hatch of Utah, a member of the Judiciary Committee, said the Democrats should have accepted it.

"We would be much farther ahead in finding out whether there's any real impropriety here or not,'' said Hatch, a former chairman of the committee. He also said presidents have legitimate reasons to protect the confidentiality of the advice they get.

In his letter, Fielding explained Bush's position on executive privilege this way: "For the President to perform his constitutional duties, it is imperative that he receive candid and unfettered advice and that free and open discussions and deliberations occur among his advisors and between those advisors and others within and outside the Executive Branch.''

This "bedrock presidential prerogative'' exists, in part, to protect the president from being compelled to disclose such communications to Congress, Fielding argued. And he questioned whether the documents and testimony the committees seeking are critically important to their investigations.

It was the second time in his administration that Bush has exerted executive privilege, said White House deputy press secretary Tony Fratto. The first instance was in December, 2001, to rebuff Congress' demands for Clinton administration documents.

Tensions between the administration and the Democratic-run Congress have been building for months as the House and Senate Judiciary panels have sought to probe the firings of eight federal prosecutors and the administration's program of warrantless eavesdropping. The investigations are part of the Democrats' efforts to hold the administration to account for the way it has conducted the war on terrorism since the Sept. 11, 2001, attacks.

Democrats say the firings of the prosecutors over the winter was an example of improper political influence. The White House says U.S. attorneys are political appointees who can be hired and fired for almost any reason.

Democrats and even some key Republicans have said that Gonzales should resign over the U.S. attorney dismissals, but he has steadfastly held his ground and Bush has backed him.

Just Wednesday, the Senate Judiciary Committee subpoenaed the White House and Vice President Dick Cheney's office, demanding documents pertaining to terrorism-era warrant-free eavesdropping.

Separately, that panel also is summoning Gonzales to discuss the program and an array of other matters - including the prosecutor firings - that have cost a half-dozen top Justice Department officials their jobs.

The Judiciary panels also subpoenaed the National Security Council. Leahy added that, like Conyers, he would consider pursuing contempt citations against those who refuse.



Supreme Court blocks Texas man's execution
Legal Career News | 2007/06/28 14:18

The Supreme Court blocked the execution Thursday of a mentally ill Texas man whose lawyers say he is too delusional to understand the legal process. Scott Panetti, a paranoid schizophrenic, shot and killed his in-laws 15 years ago in front of his estranged wife and their 3-year-old daughter. He now thinks that Satan is using the state's penal machinery to stop him from preaching the Gospel.

The case posed the issue of how insane a person must be before a death sentence becomes unconstitutional, and the ruling came at the end of the Supreme Court's term.

At trial, Mr. Panetti, now 49, insisted on representing himself. He wore a purple cowboy costume, tried to subpoena Jesus, the pope and John F. Kennedy, and testified in the persona of his alter ego "Sarge." He'd been hospitalized 14 times for mental illness in the decade before the murders, at his in-laws' Fredericksburg home.

Lawyers handling his appeal argued few, if any, death row inmates are as mentally incompetent and that putting him to death would amount to "mindless vengeance" with no retributive purpose.

Four lower courts did find him competent to stand trial, and a jury rejected his plea of not guilty by reason of insanity.

But Justice Anthony Kennedy, writing for a 5-4 majority, found that Mr. Panetti's mental illness is so severe that it should have been considered.

"Someone who is condemned to death for an atrocious murder may be so callous as to be unrepentant; so self-centered and devoid of Compassion as to lack all sense of guilt; so adept in transferring blame to others as to be considered, at least in the colloquial sense, to be out of touch with reality," Justice Kennedy wrote, but Mr. Panetti's problem isn't merely "a misanthropic personality or an amoral character. It is a psychotic disorder."

At oral arguments in April, justices wrestled with the puzzling situation of an inmate who knows he's been convicted, knows what he's convicted for, knows the state plans to punish him – but suffers from a delusion that makes him ascribe satanic motives to the authorities.

Texas Solicitor General Ted Cruz, arguing for the prosecution, urged justices to focus on the central fact – essential to a legal finding of mental competence -- that Mr. Panetti understands that he is guilty of murder and that he faces execution for that murder.

The American Psychological Association, the American Psychiatric Association and the National Alliance on Mental Illness had all urged the Supreme Court to spare Mr. Panetti, arguing that regardless of current legal definitions, if a person has a mental disorder that "significantly impairs his or her capacity to understand the nature and purpose of the punishment," that person isn't competent to be executed.

Gregory Wiercioch, an attorney with Texas Defender Service who argued Mr. Panetti's case, lauded the ruling.

"The Supreme Court recognized that executing Scott Panetti would be a mindless, meaningless, and miserable spectacle," he said. "The Supreme Court today reaffirms the wisdom of a legal principle nearly a thousand years old – that the execution of persons like Scott Panetti serves no purpose and offends our sense of decency and common humanity."

Justice Clarence Thomas, writing for the four dissenters, criticized the majority's refusal to defer to lower courts regarding Mr. Panetti's mental competence, especially in the absence of evidence that his condition has worsened since his conviction – a contention Mr. Panetti's lawyers dispute.

Justice Thomas accused the court's majority of offering a "half-baked holding" that doesn't clarify standards for findings of legal insanity – leaving, instead, muddled guidelines for lower courts to sort through.

He argued that the only workable standard would be the one offered 20 years ago by Justice Lewis Powell, in a concurring in another mental competency case that left the court even more badly divided. Justice Powell wrote that no one should be executed unless they perceive "the connection between his crime and his punishment" – the standard Mr. Cruz had urged on the court.

The Panetti case is one of a number of Texas death row cases the Supreme Court has scrutinized this term.

In April, a 5-4 court threw out sentences for three killers whose juries, in choosing between execution and life in prison, weren't explicitly allowed to weigh mitigating factors such as childhood abuse.

The court's finding that meant a reprieve for three Texans, including LaRoyce Smith, who killed the night manager at a Dallas Taco Bell where he'd worked. He was a 19-year-old ninth-grader with an IQ of 78.

At the time of trial, Texas law gave juries a two-part test: if the conduct was deliberate, and the defendant posed an ongoing threat to society, the sentence would be death. Those rules were in use during the late 1980s and early 1990s. The Legislature added a third test in 1991, asking juries to explicitly consider mitigating factors.

The Supreme Court threw out the Smith sentence on a 7-2 vote in 2004, but the Texas Court of Criminal Appeals defied the justices, asserting as it had previously that the lack of a the third jury instruction was harmless. The Supreme Court rejected that snub in April. Justice Anthony Kennedy, writing for the majority, caustically asserting that the Texas court suffered "confusion" and an inability to follow directions.

At the same time it threw out the Smith death penalty, the Supreme Court gave reprieves to two other Texas inmates whose appeals on the grounds had come up through the federal courts: Brent Ray Brewer, who stabbed a 66-year-old man and robbed him of $140, and Jalil Abdul-Kabir, who robbed a 66-year-old man who was walking his dog in San Angelo in 1988, strangled him with the leash and got $20.

Fifty Texas inmates were sent to death row under the flawed jury instructions, and within a week of the Smith ruling, the Supreme Court gave a near last-minute reprieve to another of them, Ronald Chambers, a Dallas man who has spent 31 years awaiting execution for a 1975 abduction-murder of a college student. He'd been convicted and sentenced to death three times.

The cases led many legal experts to view a growing sense of dissatisfaction on the Supreme Court over the way Texas has handled the death row process.



LA judge rules lawyer "deficient," orders new trial
Headline News | 2007/06/28 13:21

A computer wholesaler convicted of selling counterfeit goods was granted a new trial after a judge ruled that her attorney did a bad job defending her. U.S. District Judge Florence-Marie Cooper vacated the conviction of Joan Huang Monday and granted her a new trial after calling lawyer David E. Brockway's performance "utterly deficient."

Brockway made no opening statement, called no witnesses, presented no evidence and did not cross-examine several witnesses in the May 2006 trial that ended with Huang being sentenced to 12 months in prison, her current lawyer Ronald O. Kaye said. Huang has been free on bail since the conviction.

Brockway said in a declaration filed as part of prosecutors' arguments opposing a new trial for Huang that he didn't cross-examine every government witness because he didn't "believe that significant points could be scored."

He also acknowledged in the filings that he lost a box of documents from Huang's previous lawyer, whom she had dismissed after he advised her to plead guilty to the federal felony charges against her.

Brockway appeared in court to represent Huang the day after the State Bar Court said he should be suspended for five years for allegedly taking thousands of dollars from four Asian immigrant clients who spoke little or no English and failing to do any work for them. The court found him culpable of 14 counts of misconduct against the four clients.



Court rejects public school diversity plans
Lawyer Blog News | 2007/06/28 13:10

A bitterly divided U.S. Supreme Court on Thursday issued what is likely to be a landmark opinion -- ruling that race cannot be a factor in the assignment of children to public schools. The court struck down public school choice plans in Seattle, Washington, and Louisville, Kentucky, concluding they relied on an unconstitutional use of racial criteria, in a sharply worded pair of cases reflecting the deep legal and social divide over the issue of race and education.

A conservative majority led by Chief Justice John Roberts said other means besides race considerations should be used to achieve diversity in schools.

"The way to stop discrimination on the basis of race is to stop discrimination on the basis of race," he wrote.

More than a half-century after the high court outlawed segregation in public schools, the justices were deeply divided over one controversial outgrowth of that decision: what role race should play, if any, in assigning students to competitive spots in elementary and secondary schools.

The cases from Kentucky and Washington state revisit past disputes over race and education, stemming from the landmark 1954 Brown v. Board of Education decision.

"Before Brown, schoolchildren were told where they could and could not go to school based on color of their skin. The school districts in these cases have not carried the heavy burden of demonstrating that we should allow this once again-- even for very different reasons," Roberts wrote.

He was joined by Justices Antonin Scalia, Clarence Thomas, Anthony Kennedy and Samuel Alito.

But Kennedy held out hope for school systems that use race that their criteria might be allowed in some narrow circumstances.

Reading his concurring opinion from the bench, Kennedy said, "This nation has a moral and ethical obligation to fulfill its historic commitment to creating an integrated society that ensures equal opportunity for all its children.

"A compelling interest exists in avoiding racial isolation, an interest that a school district, in its discretion and expertise, may choose to pursue."

He added, "Crude measures of this sort [as illustrated in this case] threaten to reduce children to racial chits valued and traded according to one school's supply and another's demand."

And Thomas said, "Simply putting students together under the same roof does not necessarily mean that the students will learn together or even interact. Furthermore, it is unclear whether increased interracial contact improves racial attitudes and relations."

Those on both sides of the issue, as well as the Bush administration, had hoped the Supreme Court would clarify when and to what lengths state and local officials can go to promote diversity in K-12 education.

In a landmark case three years ago, the justices affirmed racial quotas were unconstitutional but offered a limited, but nonetheless powerful endorsement of affirmative action in higher education. The Supreme Court has now ruled that legal standard does not apply in a K-12 public school setting.

While supporters on both sides of the issue seemed to agree classroom diversity is an important goal, differences remain over how to maintain it without the real or perceived consequence that some families may be unfairly discriminated against or inconvenienced.

In dissent, Justice John Paul Stevens said the majority "reverses course and reaches the wrong conclusion. In doing so, it distorts precedent, it misapplies the relevant constitutional principles, it announces legal rules that will obstruct efforts by state and local governments to deal effectively with the growing resegregation of public schools, it threatens to substitute for present calm a disruptive round of race-related litigation."

Stevens was joined by Justices David Souter, Ruth Bader Ginsburg and Stephen Breyer.

The Seattle and Louisville plans are voluntary, introduced in the years after integration of schools in many areas was managed by the courts. They were not designed as remedial efforts to achieve diversity, but to maintain it, as a reflection of the larger communities' racial makeup.

During oral arguments in December, hundreds of demonstrators -- many of them African-American college students -- marched and chanted outside the court in support of the affirmative action plans. Some carried signs such as "Equal education, not segregation."

Louisville-area schools endured decades of federal court oversight after schools there were slow to integrate. When that oversight ended in the late 1990s, county officials sought to maintain integration, requiring that most public schools have at least 15 percent and no more than 50 percent African-American enrollment. The idea was to reflect the whole of Jefferson County, which is 60 percent white and 38 percent black. Officials say their plan reflects not only the need for diversity but also the desire of parents for greater school choice.

A white parent, Crystal Meredith, sued, saying her child was twice denied the school nearest their home and had to endure a three-hour bus ride to a facility that was not their top choice. Many African-American parents raised similar concerns.

In Seattle, public schools often rely on a "tiebreaker." Under the plan, begun in 1998, families can send their children to any school in their district. When there are more applicants than spaces available, and when a school is not considered "racially balanced," race is one of several "integration tiebreakers" used to achieve diversity.

A group primarily of white parents from two neighborhoods sued in 2001, saying about 200 students were not admitted to the schools of their choice, preventing many from attending facilities nearest to their homes.

One school at the center of the controversy is Franklin High. Half of its roughly 1,500 students are Asian-American, a third are African-American, and about 7 percent are Hispanic. White enrollment dropped from 23 percent in 2000 to 10 percent last year.

The Seattle diversity plan was suspended while the appeals worked their way through the courts.

From the justices' comments during oral arguments and in the various written opinions, it was clear the legal sticking point was whether those diversity efforts represented a "compelling government interest."

The Bush administration supported the parents bringing suit against the choice plans. Solicitor General Paul Clement told the justices the two plans at issue represented "very stark racial quotas." He argued they were a "clear effort to get the schools to mimic the overall community" and that other "race-neutral" means to achieve classroom diversity should be used.



Israeli president to quit amid sex scandal
Legal World News | 2007/06/28 12:16

Moshe Katsav was expected to step down as Israel's president after agreeing today to plead guilty to sexual harassment rather than face more serious charges that he raped female staffers.

Under the plea agreement announced by Atty. Gen. Menachem Mazuz, the 61-year-old Katsav will avoid jail time, raising an outcry among women's rights activists who saw the case as an important test of Israel's commitment to stamp out sexual harassment in the workplace.

The presidency in Israel is largely a ceremonial position; political power rests with the prime minister.

The Katsav case was among a list of scandals that have eroded Israelis' confidence in their leaders. Justice Minister Haim Ramon quit after being accused of forcibly kissing a female soldier and later was convicted of an indecent act. Corruption allegations also have swirled around top officials, including Prime Minister Ehud Olmert.

The president faced possible indictment on charges that he raped and sexually harassed female subordinates while serving as president and earlier as tourism minister. In January, Mazuz warned Katsav that authorities had enough evidence to indict on allegations involving four women, but the attorney general had yet to issue formal charges.

Katsav agreed to plead guilty to lesser charges, including sexual harassment, indecent acts and harassment of a witness, Mazuz said today. Katsav will pay damages, but prison time was suspended under the deal, which requires court approval.

Katsav was expected to resign later today, though that move was largely symbolic because his term ends next month. The Israeli parliament had already elected a successor, Shimon Peres, who takes over July 15.

Mazuz defended the decision to drop the more serious charges, saying they were going to be difficult to prove in court.

"I have reached the conclusion that I cannot in fact determine that we have crossed the threshold of the reasonable chance of conviction," Mazuz told reporters.

The plea would spare the country and alleged victims the spectacle of a trial and prevent further damage to the presidency, Mazuz said.

"From the status of No. 1 citizen, he will have dropped to the status of a man convicted of sex offenses, bearing eternal turpitude and shame," Mazuz said.

Women's rights advocates accused Mazuz of giving Katsav preferential treatment and undermining efforts to encourage Israelis to step forward with complaints about harassment on the job.

"We talk about citizens being equal before the law, and here we see a man of stature, power, money, advisors, the finest attorneys - and all these together succeed in imposing their way on the state of Israel and reach a deal that conveys a grave message," Shelly Yacimovich, a lawmaker from the center-left Labor Party, told Israel Radio.

Katsav, elected to a seven-year term in 2000, had vehemently denied wrongdoing since sexual-misconduct allegations were lodged last summer by a presidential staffer, identified publicly only by her first initial, A. Other women later stepped forward with additional allegations, but the statute of limitations had run out on some of those charges.

In January, Mazuz notified Katsav that he planned to indict pending the outcome of a subsequent hearing. But after that hearing in May, Katsav's lawyers and prosecutors began discussing a plea bargain.

Katsav's lawyers said they persuaded him to admit guilt to lesser charges to avoid the rape indictment.

Moshe Negbi, a legal analyst for Israel Radio, said the outcome would leave few Israelis satisfied.

"The president maintains he did nothing but is willing to confess so as to spare his family the suffering. And the women say they aren't retracting a single word, but the prosecution capitulated to a man in high office," Negbi said. "The public will believe in either option, but will no longer believe in the system itself."



Two plead guilty in horse doping case
Criminal Law Updates | 2007/06/28 10:24

A father and son accused of trying to fix races by injecting harness horses with substances designed to deaden pain or improve performance pleaded guilty Wednesday to felony charges. William Barrack, 68, and his son, Keith, 43, pleaded guilty to one count each of interference with a domestic animal in Saratoga County Court, district attorney James A. Murphy III said.

The men originally were indicted on two felony counts of first-degree scheming to defraud and fifth-degree conspiracy, among other misdemeanor charges. A deal was reached and the men pleaded guilty to the most serious charges for injecting Disco Force A with cobra snake venom on Oct. 26, 2006, and Epogen on Nov. 9, 2006, Murphy said. The men earned $900 on the Oct. 26 race, Murphy said.

The investigation began in September at Saratoga Gaming and Raceway following a tip from people at the track that harness horses were being injected.

The indictments also charged the Barracks with wrongly giving Patsy B Happy the anti-bleeding drug Lasix on Nov. 3, 2006. They earned $540 in that race.

The men will be sentenced Aug. 31. Murphy said it was likely the men would receive probation, but a judge will make that determination.

The Barracks' horse racing licenses are currently suspended, and a hearing will determine whether they will be permanently revoked.

Marc Mosher, 38, Robert Moscone, 60, and Carl Forrester, 31, also face charges in the case. It was unclear late Wednesday when their trials will take place. Each was charged with two counts of fifth-degree conspiracy, a misdemeanor.



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