As of press time the jury in Hal Turner's federal criminal trial in Brooklyn is either still deliberating or at an impasse. Perhaps the judge will issue a directive to keep deliberating as its only been one day.
Turner is the avowed shock jock internet radio host who claims his racist, etc. rhetoric were designed to flush out true nuts and violent extremist elements. Turner is on trial for saying that three Chicago federal judges "deserve to be killed" because of some of their court rulings.
Now with the jury deliberating, we hear that Turner fired his lawyers today.
This may be just a ruse so Turner, if found guilty, can use the ineffective assistance of counsel defense on appeal. He did not need to fire his lawyers, but probably thought that an appeal would be stronger if he did. As for the merits, well, let's just say this seems like a stretch and, frankly, an insult to his lawyers (unless they choose to understand the strategic angle). However, if the firing is just a ruse, that could get all parties in trouble for deceiving the court. Not good.
It seems, from this corner, that Turner is just a very unpredictable individual. It makes the entire case that much more interesting. Stay tuned.
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Tuesday, March 9, 2010
Sunday, March 7, 2010
Terminal Lack of Confidence Undermining Justice
The nation has been wrestling for years with questions regarding putative-terrorists/enemy combatants. Do we try them as prisoners of war? (I suggest that to even have this debate suggests strongly that they are now POWs; after all, soldiers or spies captured during declared wars on or near a battlefield did not prompt such questions.) Where do we try them -- military court or civilian court? And if a civilian court, where is the trial held?
The inconsistency and now the reversals in policy on these questions are disturbing, embarassing and harmful to the nation's reputation as a country of laws first and foremost.
There seems to be an alarming lack of confidence among Justice Department decisionmakers that a civilian trial can indeed proceed. If there is worry about the specter of a Khalid Sheikh Mohammed (hereinafter, "KSM"), who has confessed to crimes, actually being set free on a constitutional rights violation, for example, then how does one justify an indefinite detention of him (or others) before and without any trial, without raising fears that such precedent could be abused in the future to justify indefinite detentions of American citizens without a trial? In short, if this man is so evidently guilty of heinous crimes, why does there seem to be this trepidation -- if not fear -- to proceed civilly? Where are the "best and brightest" lining up to make a name for themselves in what could be a career-defining case? (Counterposition: Maybe this is supposed to be such a sure winner that there is no career upside, but plenty of room for career humiliation on the downside.)
The longer these questions remain unanswered, the more it seems that there is a someone, at some level of our federal government, who is aware that certain facts would emerge to undermine KSM's confession.
The central theme is emerging. At various levels of the Justice Department and the Obama Administration (and to be fair, this was probably also the case during the Bush Administration), there appears to be someone with something to hide. It just does not seem that the mere fear of a courtroom loss would prompt all of this maneuvering. In short, the decisionmakers look as if they are afraid of anything and everything other than a preordained guilty verdict.
Perhaps the lack of confidence is in the abilities of the prosecutors.
Perhaps the lack of confidence is in the likelihood of the federal judges to rule for the government.
Perhaps the lack of confidence, above all, is in the evidence. As incredible as it may seem, could KSM simply be a nut job? Or, even worse, could he actually be innocent of any crime, or have been tortured enough to say anything?
These would seem to be horrible questions to ponder, because of the premise that our federal government would be able to do such wrongs. One distinguishing feature about American society is our generally widespread belief that our government and its agents are benevolent and law-abiding, and that they protect us instead of persecute us. But the continuing delays and evident fear in proceeding make it seem as if there is a something out there which someone is trying very hard to keep hidden. The longer we don't get the final answers, the more the suspicions and whispers will continue.
My belief: A civilian trial should be held in the jurisdiction where the crime is determined to have been committed. That means either New York City (Southern District of New York) or perhaps Boston, where the attackers boarded the planes. A change of venue should be considered upon motion if there is a risk that the defendant cannot receive a fair trial; that is how our system works. It is better to have the trial here, and take the "chance" of losing a verdict, than to try to cover up mistakes made in the past by violating time-honored procedural rules and Constitutional safeguards and weakening the legitimacy of our judicial system. To argue otherwise, to suggest that people such as KSM absolutely must be found guilty by any means necessary, is to ignore and create the risk of tomorrow's witch-hunt, where innocents will be persecuted, tried and convicted.
Eric Dixon is an attorney in New York and New Jersey who writes on and researches various civil rights topics. His next-door neighbor's son was killed in the September 11, 2001 attacks.
Counsellor or Cheerleader?
Some prospective clients in both the legal and consulting worlds are really confused as to the purpose of a lawyer. They ignore the lawyer's purpose, which is to give advice. This is true, whether the lawyer is representing a client before a court or administrative panel, giving advice one-on-one, or negotiating or mediating a dispute.
There are people who become disappointed when they actually get advice, and do not appreciate the content of that advice. This advice is usually some derivative of, "You're wrong" or "You should not have done that." These people should learn the distinction between hiring a lawyer to counsel them, to give them real advice, and hiring what in essence is a cheerleader to pat them on the back and reaffirm just what a good thing they've done.
Eric Dixon is a practicing lawyer in New York and New Jersey and handles investigative matters, litigation, negotiations and strategic analysis. He is available for questions or comments at 917-696-2442.
Tuesday, March 2, 2010
Anger at Unfair World Sparks Political Shift
It may be said that the world -- or our class consciousness -- has changed in the last three years since the Credit Crunch (following the Great Housing Bubble) morphed into what even the Associated Press officially calls The Great Recession.
Less recognized is the growing realization that the institutions we believed would ensure a basic sense of justice and fairness have failed and are failing still.
Segments of the electorate are angry in a way not seen in this country since the Sixties and more common in other countries.
Consider:
(1) Americans are told to support its major financial institutions via TARP. People recognize their taxes today, and their kids' tomorrow, will go to pay the extravagant and sometimes totally undeserved bonuses of the same bankers whose risk-taking and bad judgments played a role in the current economic troubles.
(2) Americans see health insurance premiums skyrocket over the past decade, along with rising co-payments, increasing exclusions of coverage and growing costs for "charity care" to cover the costs of the undocumented. When reform is proposed, Americans read about "death panels" (which would exist in the form of bureaucrats deciding on the efficiency of certain procedures) and mandatory insurance with the real potential for incarceration for noncompliance. But the mandatory provisions have an exclusion for...you guessed it...undocumented aliens.
(3) Americans in the private sector have saved for their own retirement and invested in various funds. They don't have loss insurance and bear all the risk of loss. But before they pay one dime towards their own 401k, they are required to fund the defined benefit plans of public employees, who generally work less, work less efficiently, get paid significantly more than a comparable private-sector job, retire much earlier and, in many cases, show a disturbing sense of entitlement and propensity to engage in corruption, graft and other illicit behavior.
(4) Americans save for down payments and take conservative fixed rate mortgages, only to see new neighbors take outsize risks to buy bigger houses, home equity loans to buy bigger SUVs, and then claim victim status when they fall into foreclosure, leaving their responsible neighbors to pay their burden in the form of having to bail out the banks.
(5) Americans have been conditioned to be risk-averse and to take out various forms of insurance policies as an additional safety net. But increasingly, insurance carriers seek to deny these claims or make claimants go through waves of litigation to overturn "bad faith" denials of claims or "cutbacks" where claims may be paid only partially or after additional conditions are arbitrarily imposed and made intentionally difficult to satisfy. Litigation for such "bad faith" denials or other tactics by insurers is sure to increase, as consumers increasingly realize that contracts are worth little more than the paper they are printed on.
Americans are becoming an increasingly economically rational people. They are putting less and less faith in institutions, whether they be government (increasingly viewed as corrupt, incompetent, ineffective or flat-out inept), the law enforcement authorities (increasingly viewed as incompetent or corrupt after the politicization of the Bush Administration Justice Department), insurance companies (which are cutting back coverage while increasing premiums, co-payments, "red tape" procedures and, of course, their profits and executive compensation), the banks (see all of the above), and even religious institutions (after most major denominations have endured at least one scandal involving illicit sex or criminal behavior).
The growing trend towards abandoning "underwater" houses even when borrowers can pay the monthly payments shows that the old stigmas of foreclosure and damaged credit mean little (or nothing). After all, a good credit score doesn't mean much when there's no credit to be had.
Let us hope that the remaining stigmas against criminal, pathological behavior don't become similarly weakened. Such a trend will have our society careening towards a lawless, "Mad Max" post-apocalyptic society.
You still wonder why people are angry? They are very, very worried.
All of the above is prompting a huge political realignment. The old divisions of liberal vs. conservative, Republican vs. Democrat, are old school and rapidly decaying. The new divisions may be private sector employee vs. public sector beneficiary (whether employee or benefit recipient), taxpayer vs. ward of the state, subsidizer of benefits for others vs. recipient of those benefits.
When society becomes one big tug of war between the haves and the have-nots, it is time to watch out.
Less recognized is the growing realization that the institutions we believed would ensure a basic sense of justice and fairness have failed and are failing still.
Segments of the electorate are angry in a way not seen in this country since the Sixties and more common in other countries.
Consider:
(1) Americans are told to support its major financial institutions via TARP. People recognize their taxes today, and their kids' tomorrow, will go to pay the extravagant and sometimes totally undeserved bonuses of the same bankers whose risk-taking and bad judgments played a role in the current economic troubles.
(2) Americans see health insurance premiums skyrocket over the past decade, along with rising co-payments, increasing exclusions of coverage and growing costs for "charity care" to cover the costs of the undocumented. When reform is proposed, Americans read about "death panels" (which would exist in the form of bureaucrats deciding on the efficiency of certain procedures) and mandatory insurance with the real potential for incarceration for noncompliance. But the mandatory provisions have an exclusion for...you guessed it...undocumented aliens.
(3) Americans in the private sector have saved for their own retirement and invested in various funds. They don't have loss insurance and bear all the risk of loss. But before they pay one dime towards their own 401k, they are required to fund the defined benefit plans of public employees, who generally work less, work less efficiently, get paid significantly more than a comparable private-sector job, retire much earlier and, in many cases, show a disturbing sense of entitlement and propensity to engage in corruption, graft and other illicit behavior.
(4) Americans save for down payments and take conservative fixed rate mortgages, only to see new neighbors take outsize risks to buy bigger houses, home equity loans to buy bigger SUVs, and then claim victim status when they fall into foreclosure, leaving their responsible neighbors to pay their burden in the form of having to bail out the banks.
(5) Americans have been conditioned to be risk-averse and to take out various forms of insurance policies as an additional safety net. But increasingly, insurance carriers seek to deny these claims or make claimants go through waves of litigation to overturn "bad faith" denials of claims or "cutbacks" where claims may be paid only partially or after additional conditions are arbitrarily imposed and made intentionally difficult to satisfy. Litigation for such "bad faith" denials or other tactics by insurers is sure to increase, as consumers increasingly realize that contracts are worth little more than the paper they are printed on.
Americans are becoming an increasingly economically rational people. They are putting less and less faith in institutions, whether they be government (increasingly viewed as corrupt, incompetent, ineffective or flat-out inept), the law enforcement authorities (increasingly viewed as incompetent or corrupt after the politicization of the Bush Administration Justice Department), insurance companies (which are cutting back coverage while increasing premiums, co-payments, "red tape" procedures and, of course, their profits and executive compensation), the banks (see all of the above), and even religious institutions (after most major denominations have endured at least one scandal involving illicit sex or criminal behavior).
The growing trend towards abandoning "underwater" houses even when borrowers can pay the monthly payments shows that the old stigmas of foreclosure and damaged credit mean little (or nothing). After all, a good credit score doesn't mean much when there's no credit to be had.
Let us hope that the remaining stigmas against criminal, pathological behavior don't become similarly weakened. Such a trend will have our society careening towards a lawless, "Mad Max" post-apocalyptic society.
You still wonder why people are angry? They are very, very worried.
All of the above is prompting a huge political realignment. The old divisions of liberal vs. conservative, Republican vs. Democrat, are old school and rapidly decaying. The new divisions may be private sector employee vs. public sector beneficiary (whether employee or benefit recipient), taxpayer vs. ward of the state, subsidizer of benefits for others vs. recipient of those benefits.
When society becomes one big tug of war between the haves and the have-nots, it is time to watch out.
Paterson, Witness Intimidation and Police Misconduct
The currently unfolding scandal involving the use (by either New York Governor David Paterson and/or his top advisors) of State Police to contact a plaintiff/complainant/ex-girlfriend in a Family Court matter (which she dropped) reeks of a Soviet-style abuse of the police power.
It is important to distinguish between innocuous uses of persuasive powers which we are entitled to use, and the employment of men with badges and guns to deliver the same message. Men and women confronted with the latter are not easily inclined to assert -- or remember -- their constitutional rights. They are inclined to be intimidated. And many in law enforcement know that.
There are some commentators who are calling for criminal prosecution. Indeed, witness intimidation is a state and even a federal crime. Just ask former federal prosecutor Paul Bergrin, who is in jail awaiting trial for witness intimidation and other charges and is facing the specter of life in prison.
The signs are growing that there has been serious police misconduct. Whether it is a crime is debatable. The bar for determining fitness to hold public office is a lower standard than "beyond a reasonable doubt.". As more facts emerge, it is becoming clearer that Governor Paterson has either approached or surpassed the bar. A call for his resignation is no longer an overreaction.
If Governor Paterson encouraged or was complicit
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It is important to distinguish between innocuous uses of persuasive powers which we are entitled to use, and the employment of men with badges and guns to deliver the same message. Men and women confronted with the latter are not easily inclined to assert -- or remember -- their constitutional rights. They are inclined to be intimidated. And many in law enforcement know that.
There are some commentators who are calling for criminal prosecution. Indeed, witness intimidation is a state and even a federal crime. Just ask former federal prosecutor Paul Bergrin, who is in jail awaiting trial for witness intimidation and other charges and is facing the specter of life in prison.
The signs are growing that there has been serious police misconduct. Whether it is a crime is debatable. The bar for determining fitness to hold public office is a lower standard than "beyond a reasonable doubt.". As more facts emerge, it is becoming clearer that Governor Paterson has either approached or surpassed the bar. A call for his resignation is no longer an overreaction.
If Governor Paterson encouraged or was complicit
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Monday, March 1, 2010
Ambition Trumps Party Loyalty
The recent controversies and scandals -- oh, that's all the time -- bring to light an interesting misconception.
Some people think that politics is a death match between Ds and Rs, that all Ds have a loyalty uber alles to the Grand Donkey and all Rs pay similar fealty to the Elephant in the Center Ring.
Party loyalty may hold with a significant portion of the electorate, and particularly with small contributors (sub $500). However, when it comes to big business and the well-heeled, labels don't matter.
Individual ambition is the mother's milk of politics and the reason many successful politicians seem to vanish once a scandal hits a tipping point. You see, at such a point the famous politician stops being feared -- or respected -- and starts being seen as vulnerable to the death blow. Afterwards, there is the silent scorn of the fallen (and often, convicted) politician. It is all about when the politico stops being viewed as someone who can help others advance, and starts becoming a barnicle, serving no purpose (some will argue he never served a purpose) but to block someone else's ambition.
Remember: the ambitious have no true friends.
And so it goes in politics.
There is a lesson for those of us who care about legislation and regulation, even about justice (which is affected by the former as well as the quality of judges). It is never enough to appeal to the merits of a position. Unfortunately, one must often appeal to the supersized ego of the cheshire-cat grinning officeholder who cares little except for what is in it for him. From such selfishness arises greed, and therefrom oft comes the senses of privilege, entitlement and ultimately, being able to act with impunity.
The honest services statute is currently before the Supreme Court (which this fall heard several cases and has yet to rule). There are flaws of vagueness in the statute which are likely to be remedied by Congress even if the statute survives. It is important to note that in many instances, a crime may be hard to define -- in which case it can fairly be said one has not occurred. However, in many of these cases, one cannot help but evaluate a case and get the sense that something is just not right.
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Thursday, February 25, 2010
Obama Foreclosure Ban Will Spark New Credit Freeze
The Obama Administration, through the Treausry Department, is proposing an outright ban on residential foreclosures unless the mortgages are rejected for possible modifications.
This proposed ban, if adopted, will have disastrous unforessen consequences for all bank depositors, creditors and anyone potentially seeking new loans or even wanting to keep existing credit. In short, it can push the nation -- if not the world -- towards a new and deeper credit crunch.
This is how it could happen. Banks unable to foreclose -- without much greater difficulty and longer delays than at present -- will not be inclined to extend new loans. In the meantime, the banks' balance sheets will deteriorate and their cash flows will lessen.
As the value of assets (the mortgages they have the right to collect payments on) decline, unless there is permanent relief from mark to market accounting (another point for debate; I say no), the banks' capital ratios signifying the ratio of liabilities to assets will increase. In short, banks will become overleveraged again (2007 redux). The result will be a new credit crunch as banks must avoid taking on new liabilities (read: loans) in order to stay appropriately leveraged. Real cash flow will decline, causing a real liquidity crunch in addition.
Defaulting homeowners who are not subject to foreclosure or who can now enjoy new delays will have even less reason to pay anything, and other homeowners in distress will be encouraged to follow this new approach using the same calculus. The burden will shift more and more towards borrowers (on all loans) who do pay on time; they will get nothing except a greater burden, in return for shouldering a greater percentage of the responsibility. The economy can thus be pushed into a death spiral.
As an analogy, consider what happens in a co-op building with common charges borne by all owners. The charges reflect the entire co-op's expenses. If and when some unit owners default, the remaining owners end up picking up the tab.
In a new credit death spiral, borrowers in good standing will be burdened extra, some will become distressed themselves under the weight of the free-riding deadbeats, and the cycle will only worsen.
We need to stop thinking that stopping foreclosures and propping up housing prices is benign. We must encourage -- if not facilitate and accelerate -- the number of foreclosures and make the housing market "bleed out" the sickness. Only then will we have a recovery.
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Fudging Pension Deficit Numbers to $teal More Money
The Newark Star-Ledger reports today that the state pension fund has an unfunded liability for the fiscal year ending June 30, 2009 of approximately $46 billion, or about 30% higher than the unfunded liability as of June 30, 2008.
The numbers require a closer analysis. Especially when there is a movement afoot among members of both parties to get the State Government to make up for the unfunded amount -- the deficit -- which is a different way of saying it will come out of the pockets of everyone living, working or travelling through New Jersey. And more especially, when you consider that this proposal is supported by leaders of both houses of New Jersey's legislature and has, according to other reports, met with the approval of New Jersey's new Governor, Chris Christie. The same Governor Christie who claims to be taxpayer-friendly and fiscally-responsible.
Remember when Christie said he became a lawyer because he couldn't do math? Maybe he needs an abacus. Let's look at some simple numbers.
Remember when Christie said he became a lawyer because he couldn't do math? Maybe he needs an abacus. Let's look at some simple numbers.
From my math, using only the figures provided in the article, pension fund liabilities have actually decreased by $5.5 billion from 6/30/08 to 6/30/09. I arrive at this number by adding assets to unfunded liabilities (the equivalent of negative shareholders' equity). Since the unfunded portion grew from $34 to $45.8 billion, and the overall value (the assets) of the pension fund decreased from $83 to $66 billion, this suggests that pension fund payments to current retirees are accelerating, while overall liabilities have actually shrunk from $117.4 to $111.8 billion.
If current inflows continue to be outpaced by outflows and especially if there is another market downturn, the unfunded liabilities will actually grow at a faster pace. But note that these are June 30, 2009 numbers. If the pension funds are getting a rate of return close to the major market indeces (up about 20-25% since then), then present assets may be $13-15 billion higher. That would actually produce a small DECLINE in the unfunded liabilities.
If current inflows continue to be outpaced by outflows and especially if there is another market downturn, the unfunded liabilities will actually grow at a faster pace. But note that these are June 30, 2009 numbers. If the pension funds are getting a rate of return close to the major market indeces (up about 20-25% since then), then present assets may be $13-15 billion higher. That would actually produce a small DECLINE in the unfunded liabilities.
Not properly accounting for the numbers allows people to cry that the sky is falling in order to push through a state constitutional amendment requiring the state to fund any shortfall. Such an amendment should be opposed in all instances. State funding would act as a form of loss insurance for investments, which by definition carry a risk of loss. The private sector taxpayers do not enjoy these benefits and should never be asked to fund loss insurance for public employees. Such a plan would present another moral hazard, encouraging the pension funds to take even more investment risk because it would be "risk-free"; public workers get all the upside if it works, and taxpayers make up for all losses if the investments go bad.
Nothing can be more fundamentally unfair than a system where private sector residents, in some cases lacking a safety net, can be saddled with an accelerating death spiral of increased tax levies to support the entitlements (er, obligations, that's the snooty word the Grey Poupon set uses with the proles) of the public employee vassals.
Private citizens who put their money in a mutual fund whose manager makes bad investments -- or who simply invests when the entire market unravels -- don't get a bailout. No one deserves loss insurance for failed investments. No one is entitled to a certain rate of return. These are investments, not guarantees.
Nothing can be more fundamentally unfair than a system where private sector residents, in some cases lacking a safety net, can be saddled with an accelerating death spiral of increased tax levies to support the entitlements (er, obligations, that's the snooty word the Grey Poupon set uses with the proles) of the public employee vassals.
Private citizens who put their money in a mutual fund whose manager makes bad investments -- or who simply invests when the entire market unravels -- don't get a bailout. No one deserves loss insurance for failed investments. No one is entitled to a certain rate of return. These are investments, not guarantees.
Should Governor Christie back this plan, he would do tremendous damage to his credibility as a "fiscal conservative" or "reformer," and would invite -- if not ensure -- a serious intraparty challenger should he run for re-election. In short, he would reveal himself as a faux reformer.
If the new Governor approves the equivalent of a taxpayer-funded government bailout of the pension funds -- from your money and from the pockets of our children and grandchildren, born and unborn -- he will show himself to be another believer in a two-tier New Jersey society. Where all of us are equal, but those of us who govern are more equal than others.
If the new Governor approves the equivalent of a taxpayer-funded government bailout of the pension funds -- from your money and from the pockets of our children and grandchildren, born and unborn -- he will show himself to be another believer in a two-tier New Jersey society. Where all of us are equal, but those of us who govern are more equal than others.
Eric Dixon is an attorney in New York and New Jersey who handles legal and investigative matters. Mr. Dixon has substantial experience in the capital markets and offers strategic analysis and commentary on legal, economic and political affairs. Mr. Dixon welcomes your comments, criticisms and inquiries at 917-696-2442 and at edixon@NYBusinessCounsel.com.
Haiti Missionaries: When "Helping You" Is About Me Feeling Good
It's all about me.
Every so often we hear news reports of wide-eyed American evangelical missionaries going to uncivilized warrens in the Third World to "help" their people. This harkens back to the days of the Colonial French and their "civilizing mission," under which much evil was done.
This week we read about the evangelical missionaries who went to Haiti after the earthquake, allegedly to rescue children. They were arrested, possibly on nothing else but a fear that they were really there to kidnap defenseless children under the rubric of a humanitarian purpose.
Let's get something straight. Many of these missionary efforts -- in fact, much of what passes for charity -- consist of nothing more than the narcissism of their members. These so-called relief efforts not about "helping" other people. They are about people wanting to feel good about themselves, generating good publicity and in some cases padding a resume. Actual help going downstream is a collateral, incidental benefit.
Be forewarned: Those who have evil motives rarely reveal them. There is a stated motive, and then there is a real motive. Scrutiny should be the buzzword of the day with these groups.
Eric Dixon is an attorney in New York and New Jersey who handles investigative matters in addition to civil litigation. He engages in strategic analysis and legal analysis, and comments regularly on legal, economic and political issues.
Every so often we hear news reports of wide-eyed American evangelical missionaries going to uncivilized warrens in the Third World to "help" their people. This harkens back to the days of the Colonial French and their "civilizing mission," under which much evil was done.
This week we read about the evangelical missionaries who went to Haiti after the earthquake, allegedly to rescue children. They were arrested, possibly on nothing else but a fear that they were really there to kidnap defenseless children under the rubric of a humanitarian purpose.
Let's get something straight. Many of these missionary efforts -- in fact, much of what passes for charity -- consist of nothing more than the narcissism of their members. These so-called relief efforts not about "helping" other people. They are about people wanting to feel good about themselves, generating good publicity and in some cases padding a resume. Actual help going downstream is a collateral, incidental benefit.
Be forewarned: Those who have evil motives rarely reveal them. There is a stated motive, and then there is a real motive. Scrutiny should be the buzzword of the day with these groups.
Eric Dixon is an attorney in New York and New Jersey who handles investigative matters in addition to civil litigation. He engages in strategic analysis and legal analysis, and comments regularly on legal, economic and political issues.
Wednesday, February 24, 2010
New Third Parties in New York
Several groups in New York are recruiting statewide candidates for slate tickets as they plan to gain official ballot access as recognized political parties. These groups may reflect the growing constitutional rights / libertarian and "tea party" movements. Environmentalists agitated over the possibility of fracking in the Marcellus Shale region have also made noise about reviving some form of the Green Party.
This raises the possibility that the 2010 gubernatorial race will actually have some drama.
In New York, political parties become "official" when they run gubernatorial candidates who receive at least 50,000 votes on their ballot line. Gaining the ballot is a separate requirement: a statewide candidate must submit petitions with a minimum of 15,000 signatures from registered voters who did not sign a petition for any other gubernatorial candidate, and of these 15,000, at least 100 must come from each of at least 15 of the state's congressional districts. As such parties are not "official" when they are gathering signatures, they are considered "independent" bodies and the regular petition rules, limiting signers and witnesses to a petition to members of the candidate's political party, do not apply. (There is a complex, two-volume state Election Law which sets forth numerous other technical requirements far too cumbersome to recount here.)
New York has lost several "third" parties in recent years. The Right to Life, Liberal and Green Parties each had ballot status in the 1990s but each succumbed to the practice of almost always cross-endorsing major party candidates. This practice is blamed for the disillusionment among the parties' regulars, whose happiness is critical because an official political party needs to qualify candidates and needs its members (or notaries) to carry petitions. A political party whose rank-and-file members are unhappy with party leadership will have difficulty finding anyone to carry its petitions, qualifying its endorsed candidates for the ballot and eventually staying in business. The Liberal Party is perhaps the best example.
Conservative Party and Independence Party leaders may want to remember events of the past, in order to avoid becoming the next casualties.
Eric Dixon is an attorney in New York City who advises candidates and political committees on ballot access issues and corporate governance matters. Mr. Dixon is a non-partisan lawyer/consultant who has successfully managed several statewide petition drives for federal and state candidates, and advised on press relations and issue development. Mr. Dixon welcomes your comments and inquiries at 917-696-2442.
Tuesday, February 23, 2010
Corporate Headquarters, Defined
It just got a lot harder for class actions plaintiffs to bring those actions against corporate defendants in the state courts of their choice.
The United States Supreme Court issued a unanimous opinion this morning in the case of Hertz v. Friend (link unavailable just yet, check back at http://www.supremecourtus.gov/ under 2009 session slip opinions), ruling that a corporate defendant is ruled to be located where its corporate headquarters are, and those headquarters are located not necessarily where the company's operations are, but rather where the operations are directed from by upper management.
Under this reasoning, "operations" can be in state A, but if the corporate headquarters are in state B (and this is often the case for tax and corporate law purposes, such as in Delaware), the class action must be brought in state B.
This may prove to be a very corporate-friendly decision, for it will tend to encourage corporations to locate their upper management in states where "legal precedent" (the body of law comprised of prior court rulings) and the tone of the judiciary are considered pro-business. Predictability will also be a big factor; corporations and their counsel like to have an idea of the tone of the courts in a state (or county). Corporations will now have an incentive to locate their management in states which not only offer a nice quality of life and favorable (read: low) tax structure, but which also feature predictably pro-business courts.
States just got another arena in which to compete against one another to attract business. And big business just got another powerful reason to move out of New York and New Jersey. Combine high personal taxes, high corporate taxes, generally onerous and complex regulations (which lawyers who bill by the hour love), unfavorable legal precedent, unsympathetic or outright hostile judges and equally unsympathetic or outright hostile juries, and you have a potentially toxic "perfect storm" for driving big corporations out of the New York metropolitan area. Now, businesses won't just move their "back offices" out of these states; they can be counted on to move their entire upper management out as well. After all, Delaware is only 110 miles away.
Eric Dixon is an attorney in New York and New Jersey, concentrating in litigation, investigative matters, and strategic analysis. He comments regularly on legal, economic and political matters.
States just got another arena in which to compete against one another to attract business. And big business just got another powerful reason to move out of New York and New Jersey. Combine high personal taxes, high corporate taxes, generally onerous and complex regulations (which lawyers who bill by the hour love), unfavorable legal precedent, unsympathetic or outright hostile judges and equally unsympathetic or outright hostile juries, and you have a potentially toxic "perfect storm" for driving big corporations out of the New York metropolitan area. Now, businesses won't just move their "back offices" out of these states; they can be counted on to move their entire upper management out as well. After all, Delaware is only 110 miles away.
Eric Dixon is an attorney in New York and New Jersey, concentrating in litigation, investigative matters, and strategic analysis. He comments regularly on legal, economic and political matters.
Monday, February 22, 2010
Destigmatizing Crime: Going After Toyota
Carmaker Toyota announced Monday that it is under criminal investigation in connection with certain alleged defects in at least one of its models.
Defective parts or design flaws are one thing. The consequences are undoubtedly serious. But unless there is wanton negligence rising to the level of gross, why investigate this as a potential crime?
The criminal law has several objectives. One of them is retribution, the satisfaction of the desire for revenge. Another is deterrence.
A criminal investigation of Toyota may satisfy the former but is unlikely to satisfy the latter. In fact, it may result in criminal prosecution of people who intended no wrong.
There can be an unintended consequence. As more people are prosecuted for unintentional acts (de facto strict liability) the general consensus among the population may shift to a growing skepticism that people under investigation are not just entitled to the presumption of innocence, but that they may be presumed to be unfairly prosecuted. This could mark a reversal of the current state in which a target of an investigation is presumed innocent in the eyes of the law but often viewed as guilty by most news readers and media commentators. This change could be prompted the more you see outcome-based investigations where the decision to assign blame is made well in advance of any collection of genuine, reliable evidence.
Such popular skepticism and outright scorn is the norm in oppressive regimes where the authorities are viewed as corrupt and the rule of law is considered a Kafkaesque joke. We should make sure our authorities use their discretion properly and avoid quick rushes to judgment. For in their haste to chase headlines and pursue personal career ambition, these prosecutors place the popular faith in the authorities in jeopardy and risk actively destigmatizing real crime. A society in which crime lacks any stigma will experience more crime.
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Defective parts or design flaws are one thing. The consequences are undoubtedly serious. But unless there is wanton negligence rising to the level of gross, why investigate this as a potential crime?
The criminal law has several objectives. One of them is retribution, the satisfaction of the desire for revenge. Another is deterrence.
A criminal investigation of Toyota may satisfy the former but is unlikely to satisfy the latter. In fact, it may result in criminal prosecution of people who intended no wrong.
There can be an unintended consequence. As more people are prosecuted for unintentional acts (de facto strict liability) the general consensus among the population may shift to a growing skepticism that people under investigation are not just entitled to the presumption of innocence, but that they may be presumed to be unfairly prosecuted. This could mark a reversal of the current state in which a target of an investigation is presumed innocent in the eyes of the law but often viewed as guilty by most news readers and media commentators. This change could be prompted the more you see outcome-based investigations where the decision to assign blame is made well in advance of any collection of genuine, reliable evidence.
Such popular skepticism and outright scorn is the norm in oppressive regimes where the authorities are viewed as corrupt and the rule of law is considered a Kafkaesque joke. We should make sure our authorities use their discretion properly and avoid quick rushes to judgment. For in their haste to chase headlines and pursue personal career ambition, these prosecutors place the popular faith in the authorities in jeopardy and risk actively destigmatizing real crime. A society in which crime lacks any stigma will experience more crime.
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Olympic Hockey: Woe Canada
As our lovable neighbors to the True North try to recover from their great National Debacle, let's think about what the United States' victory over Canada can teach us:
1. Experience is overrated. Canada's defense is either in decline or inexperienced. Their best defensemen were their youngest.
2. Ignorance is bliss. Younger players may not be fully aware of many things, such as the consequences of their actions. This is true, both with typically stupid mistakes of youth and with not realizing how much not winning the gold will destroy the Canadian national psyche.
3. The gatekeeper matters, aka you have to pay the toll to the troll. If the opposing goalie is the best player on the ice, he can negate every other advantage you have. Canada badly outplayed the U.S. most of the game, but Ryan Miller made big saves and Martin Brodeur showed his age (38). Or did Marty just have a bad game at a bad time?
And a quick comment on the curling competition. The American women's team seems to have trouble executing, while the men's team seems to have a really curious, passive strategy. Using multiple rocks to hit out the opponent's rocks is fine, unless you trail in the last "end" and must score. Waiting until the last rock to try to win seems awfully risky and leaves zero margin for error. But plenty of people use this approach -- to their detriment -- all the time and it is not to their advantage. Why should curling be any different?
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1. Experience is overrated. Canada's defense is either in decline or inexperienced. Their best defensemen were their youngest.
2. Ignorance is bliss. Younger players may not be fully aware of many things, such as the consequences of their actions. This is true, both with typically stupid mistakes of youth and with not realizing how much not winning the gold will destroy the Canadian national psyche.
3. The gatekeeper matters, aka you have to pay the toll to the troll. If the opposing goalie is the best player on the ice, he can negate every other advantage you have. Canada badly outplayed the U.S. most of the game, but Ryan Miller made big saves and Martin Brodeur showed his age (38). Or did Marty just have a bad game at a bad time?
And a quick comment on the curling competition. The American women's team seems to have trouble executing, while the men's team seems to have a really curious, passive strategy. Using multiple rocks to hit out the opponent's rocks is fine, unless you trail in the last "end" and must score. Waiting until the last rock to try to win seems awfully risky and leaves zero margin for error. But plenty of people use this approach -- to their detriment -- all the time and it is not to their advantage. Why should curling be any different?
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Saturday, February 20, 2010
Morons and Oxymorons: John Yoo, The Torture Memo and Outcome-Based Investigations
The latest chapter chronicling the sterling work at the Department of Justice during the administration of Bush the Younger (aka, the Reign of Error) was issued very late Friday afternoon with the release of a heavily redacted memorandum (pdf) (the "Margolis Memo") by Associate Deputy Attorney General David Margolis declining to pursue charges of "professional misconduct" against former Justice Department lawyers John Yoo (now a UC-Berkeley law professor) and Jay Bybee (now a federal judge) stemming from Yoo's April 2002 memorandum arguing that certain interrogation techniques were permissible. The Margolis Memo was in response to an earlier July 2009 "Final Report" issued by the DOJ's Office of Professional Responsibility (OPR) which found Yoo and Bybee committed "professional misconduct." The Margolis Memo took a "narrow" approach in what appears to be a whitewash-style dance designed to avoid confronting issues of "professional misconduct" that OPR earlier found Yoo and Bybee to have committed. Margolis cited the absence of a "known, unambiguous standard" for evaluating these attorneys' work as the main reason for his decision not to adopt the OPR's "professional misconduct" findings.
The timing of this, during the Winter Olympics, several hours after the Tiger Woods pseudo-mea-culpa announcement and at the close of business on a wintry Friday afternoon, screams of an effort to bury this as much as possible. That is clear. Less clear is whom this is supposed to benefit: the Justice Department, or attorneys Yoo and Bybee.
As a refresher, these torture memos were used to justify certain interrogative techniques like waterboarding. These techniques are commonly considered torture, and their use has resulted in grave embarassment to the United States internationally and, at least indirectly, endangered American servicemen and civilians throughout the world who may be subjected to harsher tactics and abuse from captors or corrupt local authorities.
Aside from the torture issue, the real danger is the use of the outcome-oriented investigation. This phrase is an oxymoron. It refers to an investigative process which starts with a conclusion and then works backward to justify the conclusion, often at all costs and often by disregarding or hiding all countervailing evidence. Such a process is not an "investigation." An investigation is a process of searching for the truth, either in the form of what happened, or with legal analysis, a process of candidly and thoroughly examining the applicable legal framework. A bugus outcome-based investigation by definition is not an "investigation" or a search for the truth, or a true "analysis" of anything. A conclusion-first, outcome-based investigation has more in common with Soviet-era show trials than anything worthy of inclusion in an American system of jurisprudence which we like to consider the most advanced (although still very needy of improvement) on the planet.
It is difficult, and arguably troublesome but just as equally necessary, to second-guess these attorneys' work given the subject matter. I argue today that it is just as necessary to evaluate how their work was developed. The gravamen of my concern can be stated as follows: Yoo and Bybee should have been allowed to approach the issue from the starting point of the question, "Can we do this?" as opposed to being given the conclusion and asked (or told) to work backwards to justify a perhaps wholly-unjustifiable conclusion. If the memo was the product of a conclusion-first approach, the scholarship behind the memo deserved the strictest scrutiny and criticism and its authors roundly criticized. Such criticism indeed was received by and unrelenting towards Yoo and to a lesser extent Bybee.
However, if OPR or DOJ engaged in the same approach, the same critique must be made. The entire process by OPR of evaluating Yoo's memo can be questioned on the basis of the same flaw, that of starting with the desired (in some quarters) conclusions that Yoo's memo was totally wrong, if not arguably criminal, and thus all participants in the memo (Yoo and Bybee) deserve to be punished as harshly as possible, and then working backwards to justify the conclusion.
These conclusion-first investigations are not just inherently unjust and procedurally fatally flawed; they ignore the root causes of the problem at issue. The people who advocate such conclusion-first investigations should be removed from their posts and prevented from engaging in such sham investigations in the future.
These outcome-based investigations should be considered void ab initio. They often are engendered by a flawed, defective or entirely unwholesome basis which could be political or personal animus. The potential for abuse should be obvious, whether in the political world or the private sector. There can be little value, or validity, in the results of any investigation which seeks to critique past work primarily because of its outcome or conclusion -- and pointedly, not because of the process which engendered it. We must recognize that In such situations the real -- and often actively concealed -- reason for review is the unpopularity or undesirability of the position advocated, and the real -- and consciously hidden -- objective is to deter others in the future from advocating that undesired position by heaping as much abuse and punishment upon the original advocates to serve as a sufficient warning to others not to repeat the "mistake." Make no mistake about it -- this is about power. And such outcome-based investigations are started and prosecuted as an exercise in power, where the targets are political and/or personal and where the objective is more often than not to hide the truth rather than to reveal it. Sometimes, this is done to cover up criminal or illicit activity; other times, it may be done to avoid shame or embarassment. Maybe some people are trying to cover up and hide their mistakes. Many people are reluctant to admit their mistakes and will go to great lengths to avoid having to apologize. Do not underestimate this possibility.
None of my analysis should be viewed as a defense or advocacy of either the torture memos or their authors. These are seriously flawed lawyers whose advancement within the Bush Justice Department (and with Bybee, wihtin the judiciary) should continue to raise many questions about exactly how and why the people who were hired and promoted during the Bush Administration got selected.
Eric Dixon is an attorney practicing in New York and New Jersey. Mr. Dixon provides strategic analysis and legal analysis in connection with various investigative matters for clients. Mr. Dixon welcomes your comments, criticisms and inquiries at ericdixonlaw@gmail.com.
Friday, February 19, 2010
Tiger Woods Distracts and Hides
In today's public announcement, golf pro Tiger Woods admonished the paparazzi for chasing after his toddler-age daughter.
This statement was among various statements in which he admitted to having been "wrong" and "irresponsible."
Apologies require contrition. Tiger's apologies should go to his family...and not necessarily to anyone else.
The mention of the paparazzi was a bad strategic move, for it will be viewed (as this corner does) as an intentional distraction and a plea for sympathy. It screams, "feel sorry for me." It does not scream, "I screwed up" which is the real message he ought to have conveyed.
I would never have advised Tiger to make these statements. This attempt at damage control may actually have made his image worse.
(Eric Dixon is a lawyer in New York and New Jersey who handles damage control and strategic analysis, among other things.)
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Thursday, February 18, 2010
Criminal Defense Lawyer Shelnutt Hits Back At His Prosecutors Under Hyde Amendment
Georgia criminal defense lawyer Mark Shelnutt is fighting back against some federal prosecutors and, as he alleges, a "rogue" government investigator. Shelnutt was prosecuted on and acquitted of money laundering charges arising from his acceptance of legal fees from the proceeds of criminal activity. Shelnutt is using the Hyde Amendment to sue the federal government for recovery of about $225,000 in legal fees for his defense. Shelnutt claims prosecutors and investigators fabricated evidence against him in the course of a criminal investigation and prosecution.
Crime, Politics and Policy has covered both the Shelnutt and Ben Kuehne prosecutions (charges against Kuehne have been dropped) as examples of the federal government pursuing defense attorneys who are either apparently too good at their profession for their own good, or -- as is more likely -- who are prominent enough to make an appealing, newsworthy and hence potentially career-defining target for an ambitious, morally atavistic prosecutor looking to make a name (and career) for himself/herself and is eager to ruin someone who is much more accomplished in pursuit of sheer ambition.
In bad economic times, the "big law firms" make few partners. In some cases, very prominent East Coast firms made no partners in 2009. As the traditional model of work-ten-years-make-partner dissolves, alternatives such as making a name for oneself in government service arise as a way to bypass the traditional (and low probability) firm lockstep process for rising to partner. It is generally accepted that we are in the worst economic downturn since the Great Depression; in some professions, there has been a paradigm shift which has caused the erosion or eradication of economic models of doing business and the traditional law firm model may be one casualty. Hence, these unprecedented "hard times" are sparking a wave of new prosecutorial ambition, rooted in economic uncertainty, which threatens the "accomplished" within certain industries -- i.e., the entrepreneurial or meritocratic class -- with reputational and financial ruin and loss of one's freedom as ambitious, atavistic and financially-desperate prosecutors aim for their one chance to "make it" with a career-definiing bust. Arguably, with such a mentality on the rise, the threat to freedom and Constitutional rights of the class of "achievers" within society has never been greater.
Sports Arena Games: New Jersey Nets to Newark
The New Jersey Nets have concluded an agreement, just announced, to move to Newark's new Prudential Center for at least the next two seasons. This means the Nets will be playing in Newark starting in 2010-11. As for beyond the 2011-12 season, the new Barclays Center arena has yet to break ground and there is no assurance that it will ever be built, much less on time.
From an economic standpoint, the Nets are doing a good thing (and their new, Russian oligarch owner surely agrees) by moving to a superior facility that fans will enjoy going to and getting to. The Nets currently play at the Izod Center (nee Continental Arena, nee Brendan Byrne Arena), which became outmoded about 20 years ago -- i.e., it became obsolete only a decade after its construction -- for sports teams requiring multiple revenue streams from high-rolling fans and corporations.
Many years ago, I did substantial research and contacted the operators of most New York area sports venues regarding arena rental fees and related contracts in connection with an effort to launch a new professional indoor soccer franchise in the New York / New Jersey market. Rest assured, these operators move heaven and earth to get in anything which pays. A dark night is a money loser for any building. Ideally, these arenas would operate 365 days a year, and even host multiple events in one day. (The Pru and MSG routinely have multiple sports events in one day, generating multiple revenue streams through eyeball counts for ads, pleasing sponsors, concessions, and even local parking.) Sometimes these buildings will take a "chance," offering to take a cut of the gate receipts as an alternative to a fixed, upfront fee.
The Nets' move to Newark is a win-win. The acoustics at Izod have been terrible, with the noise going straight up into a vacuum. For a sports event, it is equally terrible. (Ironically, at the outdated and cramped Nassau Coliseum, acoustics and sightlines are great, but the building is built for 14,000 fans and has rest rooms for fewer.)
Eric Dixon is an attorney and strategic analyst who has previously been involved with potential indoor soccer franchise management groups, and who handles legal and strategic analytic matters for various clients.
Wednesday, February 17, 2010
Stiglitz: Manufacturing at 1997 Levels
As heard on Bloomberg Radio:
There's your recovery.
Government statistics mislead (at least some of the time -- depending on what statistics you use). Your eyes do not. Neither does your nose, especially if you've been on the C or E trains in midtown Manhattan. Trust your senses.
There's your recovery.
Government statistics mislead (at least some of the time -- depending on what statistics you use). Your eyes do not. Neither does your nose, especially if you've been on the C or E trains in midtown Manhattan. Trust your senses.
Bogus Victims Were Yesterday's Winners in Housing Bidding Wars
Many of the foreclosed homeowners/borrowers claiming to be victims of predatory lending today were the winners of the home bidding wars, circa 2005.
These people beat out other would-be homebuyers, in large part because they threw caution to the wind and ignored the risks of resetting adjustable rate mortgages. As home prices continued to rise, these people at some point had enjoyed home price appreciation of 20-25 percent annually, coming out to a real increase in some cases of 500-600 percent on their equity (minimal as it was).
If these people cashed out at the right time they benefitted greatly from their luck, buying essentially on margin.
Now that the tide has turned, how does the evaporation of nothing but good fortune turn these people into objects deserving of sympathy and loan forbearance and principal forgiveness (all paid, indirectly, by the rest of us)?
Beware of people who claim too loudly to be victims. These are bogus victims and frauds. The real victims were the people priced out of their desired locales in years past.
Eric Dixon is an attorney who provides strategic analysis on a variety of legal, economic and public policy issues for clients.
These people beat out other would-be homebuyers, in large part because they threw caution to the wind and ignored the risks of resetting adjustable rate mortgages. As home prices continued to rise, these people at some point had enjoyed home price appreciation of 20-25 percent annually, coming out to a real increase in some cases of 500-600 percent on their equity (minimal as it was).
If these people cashed out at the right time they benefitted greatly from their luck, buying essentially on margin.
Now that the tide has turned, how does the evaporation of nothing but good fortune turn these people into objects deserving of sympathy and loan forbearance and principal forgiveness (all paid, indirectly, by the rest of us)?
Beware of people who claim too loudly to be victims. These are bogus victims and frauds. The real victims were the people priced out of their desired locales in years past.
Eric Dixon is an attorney who provides strategic analysis on a variety of legal, economic and public policy issues for clients.
Real Unemployment 20 Percent, says Joseph Stiglitz
The noted economist and Columbia University professor Joseph Stiglitz just announced that "real unemployment" was close to 20 percent. Statement in response to question on Bloomberg Radio about how valid the federal government's 9.7 percent stated unemployment (so-called U-3) rate is.
Eric Dixon is an attorney who provides strategic analysis on legal, economic and public policy issues in addition to practicing as an attorney.
Eric Dixon is an attorney who provides strategic analysis on legal, economic and public policy issues in addition to practicing as an attorney.
Monday, February 15, 2010
Perot Redux: Independent Voters and the Tea Party Movement
I recently was invited to a Tea Party meeting in the middle of New Jersey. Former Republican gubernatorial candidate Steve Lonegan was scheduled to speak, so I thought this was worth the long drive out to Wayne, NJ.
The event and the atmosphere immediately evoked memories of the movement that arose, virtually out of thin air, in 1992 and coalesced around the presidential campaign of H. Ross Perot. Right down to the same smell of animal fat, in the burger, steak, fries and beer joint known as Gabriel's (I guess this is fine dining right off of Interstate 80), I could see why all these thin, gray-haired, cantankerous folks seemed at home. No suits in attendance; this was a blue-collar, retiree crowd whose idea of a fine beer was Budweiser. No microbrews here. These people were polite, but here to protest. And they don't take kindly to being bossed around.
Jersey has a new governor, Chris Christie. I sense from the Tea Party crowd that Christie is one misstep away from becoming the new target-du-jour of the Tea Party movement.
Indeed, Lonegan came to stoke this sentiment. He made clear that while he remains a Republican, if Republican elected officials don't remain true to fiscal issues (read: lower taxes and controlling government budgets), he believes in either challenging those officials in primaries or forming a third party.
Lonegan: "I believe in primaries."
The history of the 1992 reform movements shows that would-be reformers must be genuine and consistent. The 1992 campaign season gave rise to several reform movements, including the Concord Coalition and Third Millenium. The New Jersey event evokes comparisons, because all seemed to attract people who put principles first and people/candidates second. Indeed, some of Perot's most ardent 1992 supporters became the most vociferous opponents of his seemingly handpicked puppets when he sought to create, and then control, the national Reform Party.
Many Republicans will seek to appeal to and get the endorsement of so-called Tea Party groups. However, the question must be raised whether these candidates will have the fortitude (or honesty) to remain true to the rhetoric. The wave of popular anger may turn out many Democrats and some Republicans too; however, this tide, being more principle-based than personality-based, threatens to become a strong, anti-incumbent movement that will seek as complete a regime change as possible in the 2010 elections. These Tea Party types will not support or vote for a candidate merely because of party identification; they've already made the break.
Independent voters fall into several categories. Some have no allegiance to a party, others may lean towards the conservative or liberal "poles" but still not identify with or even have any preference for a party, and yet others may have a preference but be actively suspicious enough that they will cast protest votes in order to "send a message." This class of voters does have one unifying theme: character matters. Values and principles matter. Being trustworthy matters.
The longer the economic downturn continues (and it is already the most severe since the Great Depression), the deeper and more intractable the anger will be and the more formidable will be the reformers and protestors. Republicans who ignore the primacy of character and principles may be making a huge and career-ending mistake by treating the Tea Party crowd as unsophisticate simpletons. Democrats who make the same mistake may be surprised when no-name opponents beat them riding a wave of anti-incumbent sentiment. This crowd would be happy to shut down state capitols and Washington, DC to send its message.
The atmosphere is rarely conducive for a third party, but the ingredients for a perfect storm are here and in greater quantities than in 1992. In this environment, no incumbent is safe, in either party. For now, we have post-party conditions which make handicapping any race difficult. The policy implications will be that most significant legislation will be dead on arrival for at least this year.
Eric Dixon is an attorney who advises campaigns, party committees and candidates on ballot access laws and has successfully managed many petition drives.
The event and the atmosphere immediately evoked memories of the movement that arose, virtually out of thin air, in 1992 and coalesced around the presidential campaign of H. Ross Perot. Right down to the same smell of animal fat, in the burger, steak, fries and beer joint known as Gabriel's (I guess this is fine dining right off of Interstate 80), I could see why all these thin, gray-haired, cantankerous folks seemed at home. No suits in attendance; this was a blue-collar, retiree crowd whose idea of a fine beer was Budweiser. No microbrews here. These people were polite, but here to protest. And they don't take kindly to being bossed around.
Jersey has a new governor, Chris Christie. I sense from the Tea Party crowd that Christie is one misstep away from becoming the new target-du-jour of the Tea Party movement.
Indeed, Lonegan came to stoke this sentiment. He made clear that while he remains a Republican, if Republican elected officials don't remain true to fiscal issues (read: lower taxes and controlling government budgets), he believes in either challenging those officials in primaries or forming a third party.
Lonegan: "I believe in primaries."
The history of the 1992 reform movements shows that would-be reformers must be genuine and consistent. The 1992 campaign season gave rise to several reform movements, including the Concord Coalition and Third Millenium. The New Jersey event evokes comparisons, because all seemed to attract people who put principles first and people/candidates second. Indeed, some of Perot's most ardent 1992 supporters became the most vociferous opponents of his seemingly handpicked puppets when he sought to create, and then control, the national Reform Party.
Many Republicans will seek to appeal to and get the endorsement of so-called Tea Party groups. However, the question must be raised whether these candidates will have the fortitude (or honesty) to remain true to the rhetoric. The wave of popular anger may turn out many Democrats and some Republicans too; however, this tide, being more principle-based than personality-based, threatens to become a strong, anti-incumbent movement that will seek as complete a regime change as possible in the 2010 elections. These Tea Party types will not support or vote for a candidate merely because of party identification; they've already made the break.
Independent voters fall into several categories. Some have no allegiance to a party, others may lean towards the conservative or liberal "poles" but still not identify with or even have any preference for a party, and yet others may have a preference but be actively suspicious enough that they will cast protest votes in order to "send a message." This class of voters does have one unifying theme: character matters. Values and principles matter. Being trustworthy matters.
The longer the economic downturn continues (and it is already the most severe since the Great Depression), the deeper and more intractable the anger will be and the more formidable will be the reformers and protestors. Republicans who ignore the primacy of character and principles may be making a huge and career-ending mistake by treating the Tea Party crowd as unsophisticate simpletons. Democrats who make the same mistake may be surprised when no-name opponents beat them riding a wave of anti-incumbent sentiment. This crowd would be happy to shut down state capitols and Washington, DC to send its message.
The atmosphere is rarely conducive for a third party, but the ingredients for a perfect storm are here and in greater quantities than in 1992. In this environment, no incumbent is safe, in either party. For now, we have post-party conditions which make handicapping any race difficult. The policy implications will be that most significant legislation will be dead on arrival for at least this year.
Eric Dixon is an attorney who advises campaigns, party committees and candidates on ballot access laws and has successfully managed many petition drives.
Thursday, February 11, 2010
New Jersey on "edge of bankruptcy"?
This morning new New Jersey Governor Chris Christie declared a fiscal "state of emergency" and stated the state was on the "edge of bankruptcy.". This may pave the way for a series of emergency spending cuts.
This dovetails with the recent, and welcome, publicity about a slew of allegedly very overpaid public employees. The way to frame this debate is, in my humble opinion, to highlight the choice of municipalities to cut either from the ranks of "administrators," the so-called managerial class (of which the members arguably are paid much better than their private sector counterparts) or from the actual rank-and-file (and much lower paid, and paid more closely with private sector counterparts) service providers upon whom residents actually receive services and benefits.
Christie's approach is antagonistic. Indeed, he was compared (hilariously) to the legendary Southern sheriff Buford Pusser (the inspiration behind some tv movies and a short-lived NBC series starring Bo Svenson in the late 1970s) by The Record's Charles Stile (see http://www.northjersey.com/). He may face stiff resistance, but at least his efforts are matching the campaign rhetoric and showing that the influence of his Republican reformer and gubernatorial primary opponent Steve Lonegan remains among the populace. It seems that if Christie does not provide the promised reforms, he will be the next one chucked overboard by the tea partiers.
The problem with Christie's approach is that it does not eliminate the root cause, that of the "deciders" on the local and county levels who get to direct how funds are spent. These "deciders" are the ones who are on the payroll, along with friends and family. It is not likely they will cut their own salaries or "bennies." They are much more likely to cut salaries, or entire jobs, of the rank-and-file real service providers. These are the teachers, sanitation workers and social workers.
Christie is thinking he can coerce change, by shaming local and county leaders. This may be a highly mistaken assumption. The shameless cannot be shamed. Even worse, it is possible that this is just a disingenuous -- if not Machiavellian -- way of passing the buck, of shifting the blame.
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This dovetails with the recent, and welcome, publicity about a slew of allegedly very overpaid public employees. The way to frame this debate is, in my humble opinion, to highlight the choice of municipalities to cut either from the ranks of "administrators," the so-called managerial class (of which the members arguably are paid much better than their private sector counterparts) or from the actual rank-and-file (and much lower paid, and paid more closely with private sector counterparts) service providers upon whom residents actually receive services and benefits.
Christie's approach is antagonistic. Indeed, he was compared (hilariously) to the legendary Southern sheriff Buford Pusser (the inspiration behind some tv movies and a short-lived NBC series starring Bo Svenson in the late 1970s) by The Record's Charles Stile (see http://www.northjersey.com/). He may face stiff resistance, but at least his efforts are matching the campaign rhetoric and showing that the influence of his Republican reformer and gubernatorial primary opponent Steve Lonegan remains among the populace. It seems that if Christie does not provide the promised reforms, he will be the next one chucked overboard by the tea partiers.
The problem with Christie's approach is that it does not eliminate the root cause, that of the "deciders" on the local and county levels who get to direct how funds are spent. These "deciders" are the ones who are on the payroll, along with friends and family. It is not likely they will cut their own salaries or "bennies." They are much more likely to cut salaries, or entire jobs, of the rank-and-file real service providers. These are the teachers, sanitation workers and social workers.
Christie is thinking he can coerce change, by shaming local and county leaders. This may be a highly mistaken assumption. The shameless cannot be shamed. Even worse, it is possible that this is just a disingenuous -- if not Machiavellian -- way of passing the buck, of shifting the blame.
Sent from my Verizon Wireless BlackBerry
Tuesday, February 9, 2010
Nonprofit Slush Fund Scandal: Larry Seabrook To Face Criminal Charges
Breaking news: The New York Daily News reports that former City Councilman Larry Seabrook has been arrested on federal criminal charges arising from the ongoing CIty Council nonprofit-organization "slush fund" investigation.
Crime, Politics and Policy covered and analyzed this extensively back in the summer of 2009.
Another good website to visit on this issue is http://www.bloombergwatch.com/ (which covered many things other than its outrage over Bloomberg's overturning of term limits referenda).
Monday, February 8, 2010
Reasonable Doubt As To Ed Cheatam; Why Leona Beldini Might Be Acquitted
The jury deliberations in the federal criminal trial of Jersey City deputy mayor Leona Beldini begin Tuesday morning. The federal government has argued that the appearance of Beldini on tape agreeing to "flip the pile" and cut through "red tape" is proof of her guilt on bribery and official corruption charges. They might prevail. Certainly, Beldini's reputation has taken a beating. Even if acquitted, she has been shown to keep extremely poor company and willing to conduct business the Hudson County way, which is to say, to extend special favors. Even if her conduct is not found to be "criminal," she appeared to be too close to the ethical netherworld of the special treatment which is the hallmark of New Jersey government and the absolute bane of its citizenr.
I believe the federal prosecutors could have emphasized more Beldini's potentially huge windfall from the phantom real estate development, to wit, her being "granted" the exclusive right to broker all the units in the development. The real estate commission could easily run into the millions of dollars. Perhaps the press reports (and it is good to see this case get the intense coverage it deserves) have focused on more salacious details of the case.
The key is whether the jury considers why two people on the tape did not testify. Jersey City mayor Jerramiah Healy and Hudson County affirmative action director Ed Cheatam both made appearances on Solomon Dwek's version of Candid Camera. Neither appeared as a witness. More peculiar, Cheatam has pleaded guilty, but did not testify, unlike his fellow admitted-felon (and in a heap more trouble) Dwek.
In this observer's mind, the fact that Cheatam was integrally involved in and directly implicated in the meetings (and by his own words on tape), when combined with his nonappearance on the stand and the fact that his absence presents a stark contrast to Dwek's presentment on the stand under similar circumstances (both need a break on sentencing), raises reasonable doubt. It certainly raises the question as to why the U.S. Attorney's Office had less than full confidence in Cheatam in the role of cooperating witness / supporting actor.
Of course, I am no ordinary observer.
I presume one of two theories. The first theory is that the government was afraid Cheatam might hurt their case and raise the reasonable doubt sufficient for a conviction. Remarkable, given Dwek's performance. Dwek was essential because of the tapes. But does this mean the government preferred Dwek as a witness?
The second theory is that the government intentionally withheld Cheatam from this case in order to save him for more prominent defendants. However, this theory rests on the premise that the government was able to choose which case(s) to bring first, which it was not able to do with Beldini because her attorney Brian Neary pushed from the get-go for a "speedy trial." This pressured the government to prepare her case first before other defendants.
If the second scenario holds true, then the reasonable doubt theory becomes far weaker.
I believe the federal prosecutors could have emphasized more Beldini's potentially huge windfall from the phantom real estate development, to wit, her being "granted" the exclusive right to broker all the units in the development. The real estate commission could easily run into the millions of dollars. Perhaps the press reports (and it is good to see this case get the intense coverage it deserves) have focused on more salacious details of the case.
The key is whether the jury considers why two people on the tape did not testify. Jersey City mayor Jerramiah Healy and Hudson County affirmative action director Ed Cheatam both made appearances on Solomon Dwek's version of Candid Camera. Neither appeared as a witness. More peculiar, Cheatam has pleaded guilty, but did not testify, unlike his fellow admitted-felon (and in a heap more trouble) Dwek.
In this observer's mind, the fact that Cheatam was integrally involved in and directly implicated in the meetings (and by his own words on tape), when combined with his nonappearance on the stand and the fact that his absence presents a stark contrast to Dwek's presentment on the stand under similar circumstances (both need a break on sentencing), raises reasonable doubt. It certainly raises the question as to why the U.S. Attorney's Office had less than full confidence in Cheatam in the role of cooperating witness / supporting actor.
Of course, I am no ordinary observer.
I presume one of two theories. The first theory is that the government was afraid Cheatam might hurt their case and raise the reasonable doubt sufficient for a conviction. Remarkable, given Dwek's performance. Dwek was essential because of the tapes. But does this mean the government preferred Dwek as a witness?
The second theory is that the government intentionally withheld Cheatam from this case in order to save him for more prominent defendants. However, this theory rests on the premise that the government was able to choose which case(s) to bring first, which it was not able to do with Beldini because her attorney Brian Neary pushed from the get-go for a "speedy trial." This pressured the government to prepare her case first before other defendants.
If the second scenario holds true, then the reasonable doubt theory becomes far weaker.
Saturday, February 6, 2010
Too Effective? Jury Nullification Warning from Jersey Corruption Judge
The first of the promised big huge "Bid Rig" series of federal corruption cases is going to a jury next week, following closing arguments Monday in Newark federal court in the case of U.S. v. Beldini.
Federal district judge Jose Linares warned Leona Beldini's defense lawyer Brian Neary (Code Name: Bow Tie) not to use a "jury nullification" argument to the jury. This argument rests on the theory that, essentially, a jury can actively disregard a judge's instructions on the applicable law, rulings on evidence or pretty much anything else and find a defendant innocent if they believe the case, the law or the judge to have been unfair or unjust. (Some would argue this happens all the time, but that the concept of jury nullification is rarely cited. See People v. Simpson, O.J.)
To his credit, Neary protested, seeing this warning as an effort to induce him to provide a less than vigorous defense for his client.
The recent cases of Mark Shelnutt and Ben Kuehne (detailed previously by Crime, Politics and Policy in 2009) show what happens when a defense lawyer becomes too much of an obstacle in the pursuit of a conviction. (In Kuehne's case, he wasn't even the defense lawyer, merely the outside lawyer giving a legal opinion on the legitimacy of the origin of funds used to pay the legal fees of the very noted Florida defense lawyer Roy Black.) In the Beldini case, we don't see the prosecution going after the defense lawyer; we see the admonition from the judge.
As an aside, why prosecutors don't relish the intellectual challenge more is mind-boggling. Perhaps they are persuaded to keep their mental gymnastics occupied through conjuring up new theories of criminal liability, criminal sanctions for what essentially are civil or regulatory violations, new methods of circumventing the Fourth Amendment, or even new quasi-rules of evidence.
As for the Beldini case, Crime, Politics and Policy has written earlier this week on the amazing repugnance of the star witness in this case, a man whom today goes by the name Solomon Dwek (nom-de-guerre: David Esenbach). Why the federal government allowed (or recruited) this man to solicit bribes, instead of someone much more honest (say, someone who was not an admitted felon and not extremely desperate to please in order to get a sentence reduction for "substantial cooperation" with the government ) is even more puzzling.
I will not predict the outcome of jury deliberations, but I do predict there will be some interesting grounds for appeal.
Federal district judge Jose Linares warned Leona Beldini's defense lawyer Brian Neary (Code Name: Bow Tie) not to use a "jury nullification" argument to the jury. This argument rests on the theory that, essentially, a jury can actively disregard a judge's instructions on the applicable law, rulings on evidence or pretty much anything else and find a defendant innocent if they believe the case, the law or the judge to have been unfair or unjust. (Some would argue this happens all the time, but that the concept of jury nullification is rarely cited. See People v. Simpson, O.J.)
To his credit, Neary protested, seeing this warning as an effort to induce him to provide a less than vigorous defense for his client.
The recent cases of Mark Shelnutt and Ben Kuehne (detailed previously by Crime, Politics and Policy in 2009) show what happens when a defense lawyer becomes too much of an obstacle in the pursuit of a conviction. (In Kuehne's case, he wasn't even the defense lawyer, merely the outside lawyer giving a legal opinion on the legitimacy of the origin of funds used to pay the legal fees of the very noted Florida defense lawyer Roy Black.) In the Beldini case, we don't see the prosecution going after the defense lawyer; we see the admonition from the judge.
As an aside, why prosecutors don't relish the intellectual challenge more is mind-boggling. Perhaps they are persuaded to keep their mental gymnastics occupied through conjuring up new theories of criminal liability, criminal sanctions for what essentially are civil or regulatory violations, new methods of circumventing the Fourth Amendment, or even new quasi-rules of evidence.
As for the Beldini case, Crime, Politics and Policy has written earlier this week on the amazing repugnance of the star witness in this case, a man whom today goes by the name Solomon Dwek (nom-de-guerre: David Esenbach). Why the federal government allowed (or recruited) this man to solicit bribes, instead of someone much more honest (say, someone who was not an admitted felon and not extremely desperate to please in order to get a sentence reduction for "substantial cooperation" with the government ) is even more puzzling.
I will not predict the outcome of jury deliberations, but I do predict there will be some interesting grounds for appeal.
Friday, February 5, 2010
Unemployment Figures and Official Deception
The numbers on unemployment released this morning are deceptive.
The main number ("U-3") is down from 10.0% to 9.7%. This figure, however, excludes people out of work for more than six months "who have stopped looking for work." There is plenty of discretion in making that judgment. Remember, these figures can be subject to manipulation to reach the desired objective.
Note that payroll numbers are also down. This means that employment income has dropped, either because fewer people are working, people are working fewer hours or people are getting paid less.
The economic media is likely "looking for the good news."
If you are anything but a ward of the state, I suggest you try looking for the unvarnished, unadulterated truth.
Jersey Corruption Trials: Political Crime
A few comments regarding the federal criminal trial of Leona Beldini, Jersey City Deputy Mayor and one-time burlesque dancer.
This trial is about bribery, and it is about Beldini's allegedly criminal conduct. It is, however, also about the government's principal witness -- who today has the legal name of Solomon Dwek.
If (1) Dwek's storytelling is the main supporting evidence in the remainder of some several dozen cases to a bunch of videotapes suggesting -- but by no means clearly demonstrating beyond a reasonable doubt -- less than wholesome conduct, (2) the bribes never went to defendant Beldini but instead went to another defendant named Ed Cheatam (as captured on videotape, and who pleaded guilty), and (3) Cheatam was not called as a witness by the prosecution, it suggests that the evidence against Beldini merely suggests she was in bad company, may have been imprudent, foolish or flat out stupid. But it just does not seem to be anywhere near the conclusive evidence of criminal wrongdoing. Remember, when the case is about sending someone to jail, the sketchy concept of "probably" does not satisfy the requisite "beyond a reasonable doubt" standard of proof. Each of the three enumerated items above provide, or at least suggest, the presence of reasonable doubt.
When do we start wondering whether any of the other cases going to trial will be dropped?
If the evidence, seeming weak in light of the high standard of proof in a criminal trial, is of this caliber, what does this say about all the prosecutioin bluster this past summer?
Does law enforcement lose some of its hard-fought credibility?
Did someone just try too hard to make some cases because political corruption cases had sex appeal, both in a political context and career advancement angle?
Were people like Beldini prosecuted, not for actual, provable crimes, but because they were public officials and/or involved in politics? Did the real crime become engaging in politics? In other words, were they prosecuted, not for what they did, but for who they were?
Historian Hans Trefousse, 1921-2010
The study of history is instructive across all sorts of disciplines. It helps scholars, statesmen, scientists, lawyers, commentators and historians. This is because history is not merely a recitation of the past; it is the study, in many ways, of human behavior. Its allure, and the joy of its analysis, is that it allows one's imagination to run free (well, within reasonable bounds) and speculate what the future will hold in light of measured human behavior and patterns of reactions to various events. It allows one to play an endless loop of "What if?"
As if: What if the Japanese had never attacked the United States at Pearl Harbor? What if Nazi Germany had never opened a second front against the Russians, instead concentrating on the West?
These thoughts come to mind with the news that noted Civil War historian and author Hans Trefousse passed away earlier this year. A wonderful tribune to Professor Trefousse (a mentor to Crime, Politics and Policy's author back when he owned little but the clothes on his back and books in his bag) is in this morning's New York Times.
Professor Trefousse was a professor of history at Brooklyn College and also taught at the City University of New York's Graduate Center. There were many top echelon professors in the CUNY system. Professor Trefousse was among the very best. He was also, notably, in my opinion, a fine gentleman and someone whose genial manner and demeanor was a model for many of his students. Sometimes the best lessons are not the ones from books. He will be fondly remembered by his many students and colleagues.
Tuesday, February 2, 2010
Discrepancy in Self-Identification Could Prove Dwek Not Credible
The federal trial of Jersey City, NJ Deputy Mayor Leona Beldini for bribery continued today in Newark federal court. Beldini's lawyer Brian Neary (code name: Bow Tie) took more swings at scamster-turned-star government witness Solomon Dwek today.
Courtesy of this Star-Ledger update, Neary prompted Dwek to declare that one dozen public officials turned down his overtures for bribes, as if to implicate Neary's defendant Beldini on the basis that she did not turn down the overture in the same manner. Note that, so far, none of these responsible public officials have been identified; one can question whether there is any truth to that story.
But note that when Dwek described the rejections, he testified that these unidentified officials told him:
"Dwek go to hell."
Notice his claim that the officials used his real last name, Dwek. However, during all of the successful stings Dwek (whose arrest in 2006 for mega-million-dollar bank fraud was widely reported) used a "nom-de-guerre" of David Esenbach. Unless Dwek's success in his sting operations depended solely on his use of an alter ego, this discrepancy -- this excited utterance elicited by defense counsel Neary, who has reportedly been rattling the witness -- should seriously undermine Dwek's story.
From the various reports, it is beginning to seem as if this case rests largely on innuendo and implication, on statements which suggest, but do not conclusively lead to the inference of, an illicit transaction. Remember the criminal standard of proof is "beyond a reasonable doubt."
Monday, February 1, 2010
Solomon Dwek Hurting Feds' Credibility: Crime, Politics and Policy Was First On That Topic
The Solomon Dwek -- er, Leona Beldini -- federal corruption trial resumed this morning in Newark. The Star-Ledger's columnist Bob Braun weighed in this morning (click here) on the issue of the federal authorities' wisdom in using Dwek, whom Braun describes as "repugnant."
This issue was first addressed by Crime, Politics and Policy in various articles throughout January 2010 and, most recently, in articles on both Friday, January 29th and Sunday, January 31st. Please scroll down and see for yourself.
It is nice to shape the debate every so often. :-)
The defense attorneys (here, Brian Neary, he of the bow tie) will make Solomon Dwek the focus. The prosecutors will try to get the jury to focus on what the tapes have defendant Beldini saying. Let's hope the prosecutors are intellectually honest enough to avoid trying to recharacterize what is said (or not said) and conjure a story out of thin air in order to pad their resumes.
Saturday, January 30, 2010
Solomon Dwek De-Composing: Fact or Fantasy, or Both?
The first corruption trial in the series of "Bid Rig" arrests started this past week in Newark federal court. Several dozen people were arrested in July 2009, and there have been others who were not arrested at the time but have since pleaded guilty to crimes in connection with the investigation. It is likely there will be others, as yet unindicted, to be indicted or who will plead guilty.
The investigation centers around a series of videotapes made by a pretty bad man named Solomon Dwek. Mr. Dwek admitted to what amounts to a lifetime of lying when first presented on the witness stand. Mr. Dwek has previously admitted to the crime of bank fraud, but compared to his.other acts, it seems clear his lawyers engaged in some creative fact-bargaining (getting the government to ignore plenty of other bad acts) and the government, for reasons unclear, acquiesced.
The tapes will be the primary evidence. Soliciting and accepting bribes are serious crimes which undermine the very legitimacy of our government. (In Hudson County, New Jersey, those concepts may be novel and quaint. Hold your laughter.) However, the credibility of Mr. Dwek is still an issue. He has to testify to provide the foundation for the evidence. So far, he has not been the most convincing, at least to one astute courtroom observer writing in the Star-Ledger.
Mr. Dwek basically admitted on his first day in court that he was performing. The choice of that word does not suggest the concept of truth. It very clearly suggests the concept of fiction, in the Broadway show context.
This raises a disturbing series of questions. First, the naive question: Are Mr. Dwek's statements true?
More distressing is the following chain of questions which flow out of the first one: Why did the federal government use this guy to go undercover? Weren't there other law enforcement agents available? What about honest private citizens who pass a background check?
Or, was there a particular reason to select Mr. Dwek?
Or, was there a particular reason to select Mr. Dwek?
Here's the central question: Was Mr. Dwek chosen, in spite of his admissions to ripping off friends and family and running a Ponzi scheme, chosen to be the bribe-giver, not because he could chronicle the truth, but (precisely) because he was willing to say anything the government needed him to say for its case? In essence, was Mr. Dwek the perjurer-for-hire of the day?
And a global question: Are these arrests and cases the product of a results-oriented, conclusion-first, ends-justify-the-means investigation that started with the assumption (or the hope) that certain politicians were crooks and then just tried to manufacture certain evidence to hopefully convince a jury that there was a crime?
Here is a current Star-Ledger story with direct links to transcripts and videotapes. Judge for yourself Ms. Leona Beldini, whom, lest we not forget, is the defendant in this first case. Ultimately, it is the propriety of her actions which is the issue. Ed Cheatam has already pleaded guilty in this investigation, and Jersey City Mayor Jerramiah Healy likely has a role in this investigation which has yet to be revealed.
Cleaning up corruption is admirable and desirable. And it is necessary, especially in Hudson County, NJ where there is a strong history of outright corruption and an equally strong tradition of institutionalized favoritism, special treatment and other forms of line-jumping. But using someone who is arguably dirtier than dirt is a recipe for cross-contamination. These "investigative tactics" undermine the legitimacy of and public faith in our law enforcement authorities and their adherence to basic Constitutional rights. Truth and justice matter, at least in the America we are taught exists.
Should some of these "Bid Rig" defendants turn out to be really crooked, the last thing Hudson County needs is a witness like Dwek who may make these crooks look like sympathetic figures. That might be the worst possible outcome this first trial may yield.
Should some of these "Bid Rig" defendants turn out to be really crooked, the last thing Hudson County needs is a witness like Dwek who may make these crooks look like sympathetic figures. That might be the worst possible outcome this first trial may yield.
Friday, January 29, 2010
Surprising Privacy Expert Witnesses: How Illegal Aliens Can Teach Us To Preserve Our Privacy
The fields of "privacy law" and "Internet law" are relatively new, undefined (with uncertainty over who is qualified to define them) and expanding (to the extent they can be defined). As a consequence, some lawyers cannot find "expert" witnesses in these fields without either some difficulty or discomfort with the level of expertise these "experts" purport to have.
For the uninitiated: Privacy law and Internet law largely concern the vulnerability of people to abuses by others of existing and emerging technologies and media.
The issue sometimes arises regarding how to best protect oneself from being vulnerable. Who is qualified to speak with expertise on such a subject?
I contend that New York City has many experts on this subject. About one million, give or take a few hundred thousand. They are illegal aliens. They are here without documentation, without ATM cards, without other cards with magnetic strips or infrared strips, no REAL ID cards, no authentic social security cards (they can get a taxpayer identification number from the IRS with few or no questions asked, as the government will gladly tax you if you're illegal) and no credit cards. They don't have e-mail accounts or Facebook or LinkedIn accounts. They don't have bank accounts under their real names. They don't transact business under their real names. Most often, they do not drive. They limit their interaction with the authorities, avoiding even conventional mass transit in favor of ethnic-run (and privately-operated) jitney buses and cabs.
And, unlike most stupid Americans who gladly trade their privacy for a smidgen of convenience and the allure of a perceived discount, these aliens will happily pay for the ability to remain undetected. (Remember Dixon's Rule #34: Privacy and convenience operate in an inverse relationship to each other.) They will eschew state-run mass transit for ethno-centric, privately-operated jitney buses; avoid conventional banks for ethno-centric or church-centric informal organizations which operate on trust without contracts (of course, at the depositor's risk) and will buy these "dollar cards" for international phone cards, eschewing even telephone land-line service.
In short, they're "off the grid." The government cannot use its myriad of technologies, legally or otherwise, to track these people. They are "underground," even though they are in plain sight to those of us on the ground. They've been here for years; some, for decades. Some of them make more money than you do! And they will remain here, because they know that to get connected to the grid places them at immediate risk of detection, detention, imprisonment and deportation.
Who needs another egghead when the neighborhoods are teeming with people who can tell you how they've avoided immigration agents for decades?
Monday, January 25, 2010
Christie's First Tax Hike Threat
The paint on the front door is still wet, but New Jersey's new Governor Chris Christie has already made his first tax hike increase, as this Associated Press report (picked up by the Star-Ledger of Newark, NJ). The report indicates that Christie will increase certain taxes on business unless the federal government comes up with funds to replenish the State's unemployment insurance fund.
While it should be noted that the State is required to replenish this fund, the option of making spending cuts elsewhere in order to free up funds for unemployment insurance was not mentioned as an alternative.
While it should be noted that the State is required to replenish this fund, the option of making spending cuts elsewhere in order to free up funds for unemployment insurance was not mentioned as an alternative.
Going to the federal government and saying you will blame it (and its Democratic Chief Executive) for raising taxes unless it gives you money is the equivalent of what on Wall Street used to be called greenmail. Governor Christie is essentially saying: pay us or otherwise we'll raise taxes -- and blame the Democrats for it. This type of pressure (which may not be entirely appropriate anyplace except in politics where it appears to be common practice -- wait, isn't that what Joseph Ferriero's lawyers were saying this past summer?) reminds us of how those companies got those deferred prosecution agreements back while Christie was U.S. Attorney, no?
The prescience of conservative Star-Ledger columnist Paul Mulshine, who consistently questioned Christie's "conservative" credentials on many issues including taxes, has been demonstrated by this development. It only took six days -- or less than four full business days. Amazing.
Announcing the Christie Doctrine: I will raise your taxes if I can blame someone else for it.
In politics, this is called passing the buck. A certain former hockey general manager would call this being a gutless puke. (Trivia: Name the GM.) Common people have a simpler explanation: He lied.
Eric Dixon is an attorney practicing in New York and New Jersey and handles ballot access matters for candidates and public organizations. Mr. Dixon handles matters involving litigation, dispute resolution, investigations and due diligence directly with clients and indirectly when engaged by other professionals.
Eric Dixon is an attorney practicing in New York and New Jersey and handles ballot access matters for candidates and public organizations. Mr. Dixon handles matters involving litigation, dispute resolution, investigations and due diligence directly with clients and indirectly when engaged by other professionals.
Sunday, January 24, 2010
Running For Office? The FBI May Assume You're A Crook
The Bid Rig trials begin tomorrow in Newark federal court with U.S. v. Beldini, heard before Judge Jose Linares. Barring a sudden guilty plea, this will be the first trial in which we will get to examine the credibility of star government informant Solomon Dwek. Of course, it's not just Dwek's say-so; government sources have promised that there are wiretaps implicating Jersey City Deputy Mayor Leona Beldini.
Mr. Dwek enjoyed prodigious success enticing candidates and their associates to take bribes, if the representations of law enforcement are to be taken at face value. In the case of Hoboken candidates for mayor of that town, Dwek reportedly approached each of the three candidates. The one candidate who accepted the bribe, Peter Cammarano, is among the indicted and resigned as mayor soon after his arrest. He awaits trial.
Note that each Hoboken mayoral candidate was approached. This one fact supports the inference that every political candidate in Hoboken in 2009 was a potential crook in the eyes of federal law enforcement.
It is disturbing to think that the FBI and Justice Department may presume that any political activist or candidate should be subjected to some sort of "honesty test," and more disturbing that law enforcement may assume that any political candidate, consultant or activist -- especially in a given jurisdiction or political organization -- is a crook. There are community-minded individuals who are surely viewed by someone with a badge as unindicted co-conspirators in a scheme they can't see, touch or prove but which they assume exists. On one level, this should be absolutely insulting, to both the candidates and their communities. Certainly, on a public policy level, this has to discourage "the best and the brightest," and certainly some very honest and well-meaning people, from getting involved in their communities. (Hmmm. Could that be the intent?)
(Special shout out to Herbert Shaw, a gadfly in Hudson County who actually runs, on a regular basis, under the banners "Politicians Are Crooks." This is both funny and totally true.)
(Special shout out to Herbert Shaw, a gadfly in Hudson County who actually runs, on a regular basis, under the banners "Politicians Are Crooks." This is both funny and totally true.)
On the other hand, Dwek's success in finding corruptible "marks" in Hudson County, New Jersey tends to cast a dark cloud over a substantial portion of the public employees (whether elected, appointed or merely rank-and-file) of that county. There is, to some degree, a culture of entitlement, of special treatment, in Hudson County and in much of New Jersey's small towns. This attitude tends to lead to illicit acts, to abuses of power, and to acts which qualify as federal crimes.
Hudson County is renowned for the lack of integrity of its public employees. The sense that candidates in Hudson County are presumed to be guilty of something without proof is insulting; however, the fact that so many Hudson County Democrats were ensnared in this investigation must be highly disturbing if for no other reason than it supports a presumption I consider abhorrent.
Eric Dixon is an attorney in New York and New Jersey who handles civil litigation, investigations, due diligence and dispute resolution for clients directly and also accepts engagements from other professionals. Mr. Dixon is experienced in ballot access matters, corporate governance and securities compliance.
Eric Dixon is an attorney in New York and New Jersey who handles civil litigation, investigations, due diligence and dispute resolution for clients directly and also accepts engagements from other professionals. Mr. Dixon is experienced in ballot access matters, corporate governance and securities compliance.
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