More From Eric Dixon at http://www.NYBusinessCounsel.com

Twitter Rank #35 For Startup Advice May 2014 (#44 June 2014, #50 July 2014). Go to my professional site for solutions to your legal, business and strategic problems. Cryptocurrency, Cryptographic Security and Bitcoin Protocol Development -- Top Strategic Judgment -- When You Need A Fixer -- Explore Information Protection and Cryptographic Security -- MUST-WIN: How To Beat Your Enemy -- SURVIVE!: Under Investigation? Being Sued? Handling Extreme Stress -- Corporate Issues -- Startup Issues -- Investor Issues -- Contracts To Meet Your Needs -- Opposition Research -- Trademark, Patent, Copyright -- Media and Reputation Issues -- Independent, top-notch legal, strategic and personal advice -- Extensive ghostwriting, speechwriting, book writing, issue research, press and crisis management services. Contact EDixon@NYBusinessCounsel.com 917-696-2442.

Friday, November 27, 2009

New York Bar Denies Professional Deadbeat Admission to Bar


A heartening decision this week from a New York State court, which denied a middle-aged professional debtor (my opinion) admission to the bar.



A recent story in the New York Times reported the latest denial to Robert Bowman, a fortysomething law graduate who has also been beset by various medical problems and who is reportedly in debt to the tune of nearly one-half million dollars.    For more helpful and informative background, check out this July 2009 New York Times article.



Debt as an isolated factor should not automatically bar candidates from the bar.   There are some candidates who are beset by accidents or other misfortunes, and there are mitigating factors to consider appropriately.   However, the history of this one particular candidate suggests that he is a "layabout" who reportedly has engaged in plenty of leisure time between his various injuries and his other, further educational pursuits.   This suggests irresponsibility more than bad luck or victimization.  A neutral trier of fact should be able to distinguish legitimate instances of misfortune from the cases of people who are trying to "game the system" with every sort of excuse.   The latter type -- which Bowman appears to be -- are the people whom, in my opinion and that of the judges, give the legal profession a black eye.



There is little doubt that the New York court found there were too many excuses in Mr. Bowman's case.   While our society has become largely desensitized to debt, at some point debt becomes a telling indicator of a serious character flaw and a failure to either accept responsibility or be responsible, and even a disrespect for the obligations members of society should respect amongst one another.   This behavior can be construed as contempt for the very rule of law itself.  



New York's courts have upheld the rule of law and worked to reaffirm the public's faith in the legal profession.   Mr. Bowman needs to show a little character and responsibility, perhaps for the very first time in his adult life. 





Wednesday, November 25, 2009

Kuehne Gets Early Thanksgiving - All Charges Finally Dropped

The Bush Administration's misguided jihad against the criminal defense bar and the Sixth Amendment appears over.  

The Justice Department dropped all remaining charges against prominent Miami criminal defense lawyer Ben Kuehne and his co-defendants.   Read this report for a fuller account; click here for prior coverage and commentary by Crime, Politics and Policy.

The Justice Department seems embarassed, filing papers to dismiss the final remaining charges on the day before Thanksgiving.   The timing smells of a news dump designed to evade all detection.    However, the development (belated as it is) is welcome as it signals that the new Administration does not have the visceral hatred for the legal profession that the Bush Administration acolytes possessed.  

Recession Special?: Racists and Anti-Semites Wanted for Government Job

A disturbing story is unfolding in the New York area and is about to further unfold in Brooklyn federal court next week.

Recent reports state that a man about to stand trial for inciting others to commit violence against three federal judges has not only been on the federal government payroll as a paid FBI informant and agent provocateur, but that former United States Attorney (and Governor-elect) Chris Christie personally approved the decision not to prosecute him for various crimes.   (See the Associated Press story here.)

According to this one report (of many) the man in question, Hal Turner, has a long and sordid history of anti-Semitic, racist comments.

This story originally was eye-catching because of what I thought then to be an absolutely outrageous claim that Turner was a government informant.   It was fall-down shocking to soon read that federal prosecutors confirmed this claim.   Now we have the allegation that U.S. Attorney Chris Christie was aware of, gave legal advice with regard to and personally blessed the non-prosecution of Turner.  

This raises a series of strong and disturbing questions.   What is our federal government doing, encouraging such vile diatribes?   Why are our tax dollars going to pay this guy when the SEC doesn't have enough money for investigators and lawyers, Homeland Security can't find enough translators for certain Mideast dialects, and we are getting weekly calls for the rationing of standard medical protective measures like mammograms?

This story bears continued watching.

Tuesday, November 24, 2009

Eminent Domain Abuse: Atlantic Yards Given Go-Ahead By New York's Highest Court, Private Property To Be Condemned for New Sports Arena

In a disastrous ruling that threatens the rights of private property owners in New York State, the New York Court of Appeals this morning upheld the condemnation of private residential property in downtown Brooklyn as "blighted" so the proposed Atlantic Yards megadevelopment can be built for the benefit of the NBA's New Jersey Nets and their majority-Russian ownership group.   Atlantic Yards will feature a new sports arena for the Nets (or are they the Nyets?).   

The effect of the decision is to institutionalize a preference for certain private interests (the buyers) over other private interests (who will be compensated but are unwilling sellers).   Ostensibly there is a "public use" here.   Be very worried.   If you are not powerful enough or influential enough, will it be you next time who is forced into a shotgun-wedding type of deal where you are told what you will do (sell) and the price you will accept.

I reserve final judgment until I fully digest the New York Court of Appeals decision (PDF version). However, I fear this decision puts large segments of the private property owner universe at direct risk of the arbitrary declaration by bureaucrats that their property is either "blighted" (as they define it, of course) or not the most efficient use. In the future, how does a property owner feel secure that someone -- especially someone with an axe to grind or score to settle and the influence to match -- won't come after their property? This is approaching rule by dictat, not rule by law. We are one step closer to the destruction of the private property right which occurs when "banana republic" despots nationalize and expropriate property from their enemies and give it to their cronies.

On the other hand, before you criticize the courts, please understand that the courts' role is to interpret the law.   The law that is made by the legislature and signed by the Governor.   Hint:  Blame the State Legislature if you don't like the outcome, not the Court of Appeals.   This decision may be a disaster, but the origin is not the Court of Appeals (or any lower courts).   Solution:  The Legislature must carefully proscribe the intented uses and limits of eminent domain so private property rights are properly protected and observed.
There are clear constitutional implications to this decision. Let us hope this case will be appealed to the U.S. Supreme Court (it definitely should) and give the new Court an opportunity to revisit its recent Kelo decision (a 5-4 decision upholding eminent domain seizure).    However, I seem to remember the Supreme Court suggesting that legislative action was the proper remedy.   Again, attention should be fixed upon the State Legislature. 





Sent from my Verizon Wireless BlackBerry

Monday, November 23, 2009

Welcome to Cannibal Nation: Facing Our Crisis of Fairness

This nation is facing a crisis of growing dimensions.  There is a wealth of contradictory economic information out there. Segments of the financial press report that we are "recovering," the major stock market indeces are up more than 55 percent from their March 2009 lows (meaning they are generally down 25 percent from their October 2007 highs and about where they were last fall after the implosion of Lehman Brothers) and we are out of a recession (which technically only means the economy has grown compared to its near-panic/rigor mortis state of one year ago). Yet the avalanche of anecdotal evidence suggests the economy remains in very bad shape. The credit crisis, which began in 2007 and rapidly worsened in 2008, remains and arguably is worse than ever. Arguably.

However, our current crisis is not just economic. It is a crisis of fairness. The very legitimacy of our economic and political systems is being questioned like never before. People have seen the rule changes, the massive government bailouts, the ensuing large banker bonuses and bank profits, and favoritism towards certain industries funded by you and me and our children, and increasingly sense there's a rigged game.
An element of the American dream is the belief that one's efforts play a large role in shaping one's fortunes. Now, many people believe their fate is in the hands of indifferent if not malevolent strangers as if predestined. It should surprise no one than people have stopped much of their discretionary spending and started saving as if to prepare for a nuclear winter of uncertain length.

These changes threaten to undermine the core belief in fairness, and in the government to abide by the principle of equality under the law. But it is not just a loss of faith in the power of the Fourteenth Amendment; it is a loss of faith in the legitimacy of the entire system. There is a gnawing suspicion that the game is played by two teams, but one team gets to set and change the rules and blow the whistle at whim. The result is a growing sense that the rule of law is arbitrary.

The consequences of this trend should alarm us. A decline in the belief in the rule of law will lead to it being increasingly disregarded by those who claim moral indignation at its violation (or their being victimized). If it is not soon halted, we will see a new wave of crime cutting across all sorts of barriers previously thought inviolable.  Certainly, the sense of shame or outrage at people who cross the line has diminished, and the din of conversation suggests an emerging (and dangerous) tolerance of the attitude of "I gotta get mine before it's gone."  This is the type of moral depradation one sees in war zones or places hit by major natural disasters, where survival is at issue.  

The solution: Reaffirm fairness and equal protection under the law at all levels. This means ending the bailouts, whether for the automobile industry, dairy farmers, "too big to fail" banks, certain classes of "underwater" homeowners and the like. Government has rarely been more wrong than to shift the burden for stupid investment losses from the risk-takers to the shareholders, creditors and taxpayers (and our children) like it has done with reckless, depraved abandon in the last 15 months. To the man on the street, he recognizes the simple truth: that Big Daddy Government will not hesitate to hurt him in order to benefit others.  (This is why the older generation sees "Obamacare" as rationing and institutionalized care denial to the sick.   There is a connection.)

The distrust, the distaste for this situation should be easy to see. It is instinctual. There are animals in the wild who throw some of their young'uns out of the nest. Others simply feed on their own young. Biologists have a name for this abhorrent behavior: cannibalism.

As there are more messes out there (commercial real estate, the shadow supply overhang from delinquent residential mortgages, private equity debt and other investment debt), it is crucial our federal government stop the bleeding by pulling in its fangs and refraining from sucking more of the lifeblood from the common men and women of our nation. Reaffirming the moral high ground through fair and equal treatment on the most basic of matters will allow our nation and soceity to regain the moral authority it needs.    It is time for the Vampire States of America to stop practicing cannibalism.

Friday, November 20, 2009

New Jersey Among Top Three...in Corruption, Says Outgoing Top G-Man

The outgoing top FBI agent in New Jersey, Weysan Dun, characterizes New Jersey as among the top three most corrupt states in the nation, according to this report to appear in the Saturday, November 21st Star-Ledger of Newark, NJ.     The other top three states are Illinois (home of former Governor Rod Blagojevich) and Louisiana (from which came former Congressman William Jefferson, the man most well known for keeping his money cool in a freezer with the veggies...not that there's anything wrong with that!). 

Will this ranking change after the investigation of the New York City City Council slush funds involving public funds going to phantom, nonexistent "non-profit" organizations concludes?

Enemies List? Jersey's New Lord High Executioner Has Death Lists -- And You Might Be On It!

It was not unreasonable for some people in Democratic political circles to fear a New Jersey Governor Chris Christie, for the reason that as the sitting United States Attorney for the District of New Jersey his office was rather efficient at investigating, indicting and prosecuting corrupt public officials (whether elected or appointed).   But this one analogy attributed to a Democratic political operative in northeastern New Jersey is just "over the top" and so funny that it warrants your attention.
Another prominent Hudson/Bergen Democratic operative compared Marra’s appointment to “Pompey, the executioner for the Roman dictator, Sulla.”


He added, “Personally, I think it sucks. When Sulla invaded Rome with his legions, he posted the death lists all over the city with names of prominent Roman Republicans who were to be executed. Christie will do the same thing except that they won’t be executed; they will be criminally prosecuted by his attorney general. So it is good that I am no longer active in politics. When they are done, expect that half of the Democratic leaders that survived U.S. Attorney Christie will be gone.”
(The above passage is courtesy of the Hudson Reporter; for the full story click here.)


One wonders whether this was part of the motivation for some Democratic efforts this past election.   If that presumption is correct, then it would indicate Jon Corzine's support was worse than the numbers indicated, and indicate a possibly significant anti-Christie vote.   (Remember that Corzine's "unfavorable" rating was consistently in the high 50s and sometimes over 60% -- with those numbers it is remarkable that this race was even competitive.   And money is sometimes no factor; check out the results for former California congressman Michael Huffington and former New York gubernatorial candidate Thomas Golisano for two examples of big-spending, small-vote candidates.

So Christie's attorney general will (if the report holds true, it's been a week and no announcement) be his deputy and interim replacement.   If true, this indicates that at least a prime objective of the Attorney General's office would be further investigations -- under state law this time -- of public corruption and other assorted chicanery.

Some people -- in both parties -- may remain worried.   But it's not as if there haven't been other ambitious, efficient prosecutors looking to make a case to build a reputation.  

And I can't help but think that for every person worried about an investigation, there's at least three people sniffing an opportunity to move up if an "open seat" should suddenly materialize.   Among the ambitious, there are few true friends.

Boy oh boy!   The Governor Christie years might be really fun to watch.

Thursday, November 19, 2009

Gotti jury deadlocked; we told you so first!

See the blog from early this morning giving a highly educated guess that there would be a hung jury. We were first on this (just a highly educated assessment) and now it is reported (about 3 pm today) that the jury is deadlocked and the judge has told the jury to keep deliberating.
Hung jury can mean anything other than a unanimous verdict. It could be 6-6, or 11-1. We'll likely find out eventually.

Mistrial looms in Junior Gotti trial

Six full days of deliberations at Manhattan federal court for John Gotti Jr. No reports that the jury is confused...not sending messages with questions to the judge. Are we in mistrial (i.e. hung jury) territory? Will we soon hear the judge issue instructions to the jury to continue?

SINCE UPDATED: see post Thursday afternoon September 19, 2009

Wednesday, November 18, 2009

Criminal Defense Lawyer Acquitted on Federal Money Laundering Charges (a.k.a. Shades of Ben Kuehne)

It's gotten safer to be a criminal defense lawyer now.   And by extension, the general public's right to counsel has gotten on somewhat firmer ground.

In a case which echoed the federal criminal charges against prominent Miami lawyer Ben Kuehne (detailed by us earlier, click here), a Georgia federal jury earlier today acquitted a Georgia criminal defense lawyer on all eight counts in a federal indictment charging with money laundering, drug conspiracy (!!!) and other crimes.  See this story from American Lawyer Media posted earlier tonight.

This case was brought under the Bush Administration Department of Justice, whose hostility for the legal profession is beginning to become truly recognized apart from partisan political attacks and acrimony.   When the federal government suffers a double golden sombrero (i.e. 0-for-8), that suggests someone went too far in order to impress his bosses and burnish the ol' resume.

Is Your Lawyer on Drugs?

Multiple sources provide anecdotal evidence about members of various industries who compete for promotions (or to keep their jobs) by working insanely long hours. Sources allege that these inhuman feats can be accomplished only by the use of illegal performance-enhancing drugs (IPEDs). Just like baseball players and steroids.   Unlike legal performance-enhancing drugs (LPEDs), known to you and me as caffeine and sugar.

But a cup of coffee (or five) is no match for all the uppers, downers, greenies, reds and whatevers that the twentysomething / thirtysomething crowd is rumored to indulge in.  

Questions: how does one -- as the worker bee -- compete with the colleague taking IPEDs? How does the business owner determine who is taking IPEDs? And are there really any owners of the means of production out there who mind having certain employees revved up for 18 hours a day? (Assuming that the employees taking IPEDs are really functional and not just imagining it, like the drunk driver who assures you he's fine.)

If you are a client, you should be concerned whether you are getting trusted and competent legal advice from a real lawyer, and not a toxic brew of chemicals. In other words, get an Organic Lawyer!

Book Review: The Citizen's Constitution: An Annotated Guide, by Seth Lipsky

The Citizen's Constitution: An Annotated Guide, by Seth Lipsky.  352 pp.

Lipsky, former publisher of the now-defunct (and missed) 21st century incarnation of the New York Sun daily, has put out a readable work which largely succeeds in fusing the scholarship of a legal treatise with the utility of a reference book for the layperson. He analyzes the Constitution clause by clause, down to the word. It is meant to enlighten the reader by emphasizing actual court precedent. It is a welcome addition to popular reference literature. There is plenty of bookshelf space for narrow, emotional commentary. Lipsky aspires to be different. I recommend you buy this work, even if you disagree with the author (that is another benefit). The book sells for $25.95 but see if you can nab a discount.

(Another) Corporate Crime Initiative -- But What About Bailout Fraud?

In case you missed it the Obama Administration has announced a new task force to combat corporate fraud and crime. This replaces the Bush Administration Corporate Fraud Task Force formed after the Enron implosion. One comment: the announcement referred to the increase in corporate crime. Is this really true? Aren't we just discovering all the crimes and schemes that have been running for years? This means the increase in crime was during the boom. Crime occurring now should be down; after all, how can you rip people off when they're broke?

While we're at it, why aren't the "best and the brightest" at Main Justice investigating the bailout fraud that's occurring pursuant to TARP, TALF, cash-for-clunkers and all these other giveaways.   These programs violate the Crime, Politics and Policy principle, which when boiled down to its essentials shows the cause and effect chain as follows:

Public money > private benefit > federal criminal indictment.

Do we have to wait for states' Attorneys General to get involved for investigations and serious deterrence of malfeasance?

Tuesday, November 17, 2009

Who Needs Lexis-Nexis? Google Scholar for legal research

Google Scholar (scholar.google.com) now offers keyword searches for federal and state court opinions.
All you non-lawyers out there: Don't think you can get by without a lawyer.

(Or you can fall on your face first and then pay someone like me to clean up your mess, for a fee in advance, naturally. I offer payment plans; you plan to pay.)

Circulation Fraud: The News Becomes the News

It is not a good day for the news media when it becomes the news. Multiple media reports today in New York that authorities raided the offices of several major New York newspapers. Speculation that this relates to circulation issues, in other words, the serious fudging of circulation figures. Similar case involving the Tribune Co.'s Newsday and Hoy several years ago resulted in several federal felony charges and pleas.
In other words, your newspaper's circulation might be even less than you think! Those reported readership declines might just be the tip of the iceberg!

Get Your Mammogram Now, Ignore the Government

A federal government panel now recommends women begin getting mammograms to test for breast cancer only after age 50 (instead of 40) and get screenings every two years (instead of annually) between ages 50-75. Ostensibly this is to avoid overtreatment. To me, this sounds like throwing caution, with cancer, to the wind in order to conserve resources...in other words, putting government priorities first over individual health. Somehow, I don't see this new policy recommendation being in anyone's interest.
Is the federal government just conditioning us to pay more and expect far less in th future? What's next? Enforced euthanasia?
\

Monday, November 16, 2009

Christie: NJ budget problems "worse than expected"

Multiple sources report that the incoming New Jersey governor Chris Christie and his transition team today announced that the state's financial crisis is "worse than they expected." One report says there will be a shortfall of more than $8 billion if departmental budgets continue to grow at their present rate. Christie has previously assured state workers they have nothing to fear, and that he will not cut taxes. This means the new administration will have to cut spending.

Crime, Politics and Policy suggests one program to cut is the planned state database of all children diagnosed with handicaps, such as autism spectrum disorders, cleft palates and other birth defects. This database does nothing to help the children but would create lots of monitoring make-work for bureaucrats and nosy nellies and "buttinskies" and naturally it costs money to pay these people. Outgoing Governor Jon Corzine just signed the law mandating the database (and compelling doctors to report to the state all children with such diagnoses) in October 2009.  The handicapped-children database should either be repealed immediately, or amended to allow parents to have to "opt in" so there is no risk of privacy being violated.  

This is a children's rights issue, and also privacy rights issue; it is not a make-the-bureaucrats-feel-good issue.

The Equalizer, RIP

Back before the days of Mayor Giuliani, and after the days when Paul Kersey (aka Charles Bronson) and Bernhard Goetz patrolled the subways, New York was made safe by the likes of Edward Woodward, the British actor who played Robert McCall on the 1985-89 CBS show "The Equalizer.". The Associated Press reports Woodward died earlier today after suffering from pneumonia at the age of 79.

Tuesday, November 10, 2009

Did Misguided Career Ambition Drive The Bear Stearns Case?

[This is an update of an earlier post about the two Bear Stearns fund managers who managed hedge funds invested heavily in subprime mortgage backed securities.] 

The prosecutors in the Eastern District of New York presented for the jury selected segments of e-mails which, when read in their entirety, raised doubt as to the government's case.   The jury took approximately nine hours to reach its verdict -- meaning this was a quick turnaround.   Post-trial comments from jurors (see this Bloomberg News report) indicate they understood the government made selective use of e-mails and did not portray a true picture of what happened.

This verdict may indicate that some government prosecutors did not "vet" this case properly, meaning that someone failed to properly assess the evidence and determine whether the defendants truly had the required "criminal intent."   This was a landmark prosecution, being the first to probe the subprime mortgage meltdown.  Perhaps someone had visions in his or her heads of the value of a guilty verdict in boosting one's career and paving an express lane to a lucrative law firm partnership offer.   Did career ambition play a role in this case having been brought in the first place? 

The role of prosecutors, whether they be state, local or federal, is to do "justice."  This roughly means a pursuit of the truth.   The prime directive is not to "win the case" and certainly not to do so "at any cost."   Hopefully this case did not involve an approach of "the ends justify the means."   The gamesmanship of using selected snippets of e-mails and other evidence, when the overall context seems "clear" (as it did to the jury) suggests that the pursuit

Financial regulatory reform is coming

New proposed reforms from the Senate Banking Committee should be coming out later today. Regulatory reform may have unintended consequences and there are always new winners and losers when the chairs are rearranged on the deck. I will post later my analysis if the reforms are issued -- assuming I can make sense of the proposal.    Please check back.

Monday, November 9, 2009

Former SEC Lawyer Admits Role in Marc Dreier Ponzi Fraud; Do We Have a Corrupt SEC?


The Marc Dreier disgrace continues.   Just reported by the Wall Street Journal (link here) is that one of Dreier's "partners" at his eponymous law firm (Dreier LLP, headquartered at 499 Park Avenue), Robert Miller, has pleaded guilty to his role in the massive fraud.

Crime, Politics and Policy predicts there will be additional heads to roll in the Dreier fraud, involving other "partners" (lawyers) and employees of the Dreier firm.  

What is noteworthy is that Miller is a former Securities and Exchange Commission lawyer.  These credentials typically are the gate-opener to lucrative private sector legal positions, as companies presume that experience is valuable.   Perhaps some companies or law firms need to dispense with the presumption that past government agency employment is an assurance of honesty, integrity and character, never mind basic competence.

The Miller guilty plea will be more grist for the SEC's detractors who already have accused it of gross incompetence (see the SEC's inspector general's report, also provided on this site in an earlier post from August 2009, which you can find on the right column).   Now, if it wasn't open season before, it is now open season on the integrity of the staffers and attorneys who worked at the SEC.  

When will someone ask the questions:  Were there people within the SEC who deliberately allowed fraud to continue?   Did they do more than that -- did they actively assist the fraud?   And, were certain fraudsters trying to deliberately populate the SEC (or other agencies) with their "sleeper agents" as part of their business plan?   In other words, how extensive was the corruption and fraud within the SEC?   Do we have a corrupt SEC?   Is the SEC itself a "racketeering enterprise"?  Was the SEC just flat-out complicit in certain frauds?  

What does the plaintiffs' bar think about all this?   Maybe we'll hear real soon.   Any minute now.

Saturday, November 7, 2009

Up to Five Years in Jail for No Health Insurance, Under Pelosi Bill

The current version of the House health care reform bill (H.R. 3962, as of 11/07/2009) still subjects us to  the possibility (and we know what that means!) that individuals who "willfully" refuse to maintain health insurance can face an additional "tax" for which nonpayment thereof can result in criminal sanctions, i.e., "up to five years" in federal prison under Section 7203 of the Internal Revenue Code.

Crime, Politics and Policy reported on the threat of jail for not having the government-mandated health insurance in mid-September.   See our earlier report here

These health "reform" bills totally miss the mark.   The current "problem" is one of affordability, not necessarily one of access.   This nation can provide appropriate (defined as what you want, and what you need, as decided by you and only you) health care for everyone.    The problem is that the bill will only guarantee (or mandate) that everyone have health insurance.    But having health insurance does not equal having health care!   These bills only guarantee your right to pay insurance...not to receive any benefits.

Eric Dixon is a New York lawyer and strategic consultant for businesses, political campaigns and individuals. Mr. Dixon is available for comment or consultation at edixon@NYBusinessCounsel.com and 917-696-2442.  

Friday, November 6, 2009

Prosecutorial Wrongdoing and the Supreme Court

This past Wednesday the Supreme Court (hereinafter, "SCOTUS" so we can all be hip and overuse acronyms) heard a case involving serious allegations of prosecutorial misconduct, i.e., prosecutors hiding exculpatory evidence.    Please read this amicus brief for respondentsthe respondents' brief and the petitioners' reply brief (which includes a section caption that reads "There is No Freestanding Constitutional Right Not To Be Framed.") (Other briefs in the case are available at http://www.abanet.org/).  

I urge you to read the transcript of the oral arguments, including Supreme Court Chief Justice John Roberts invoking the concern of a chilling effect upon prosecutors (see page 35 of the transcript).

The real chilling effect here is the concept (which some petitioners and amici advance) that no constitutional deprivation occurs until there is a use of fabricated "evidence" at trial.    Under this dismaying argument, the use of knowingly false evidence (or perjurious evidence or the suborning of perjury) during the pre-indictment "investigative" phase to threaten your liberty and wrongfully (but not officially) accuse you would be constitutionally permissible! 

I contend that some of the danger to our liberty arises well before any trial.   You can be charged with a crime, and if you are denied or cannot make bail, you can sit in jail for months...or years...waiting for trial.   Under the petitioners' arguments, a wayward prosecutor can use knowingly false evidence to throw and keep you behind bars -- before and without a trial -- while enjoying immunity...and it's constitutional because you haven't had a trial yet at which the false evidence has not been used, so under the argument your due process rights haven't yet been violated.    This is seriously in error.

If the Supreme Court sets a standard that the use of pre-trial bogus "evidence" enjoys immunity, it will only encourage more misconduct.   Such a position can create a dangerous "perfect storm" when the elements of personal (or political) career ambition and prosecutorial malfeasance (or malevolence) combine.    Should the Supreme Court rule for the petitioners, there will be a present danger of vastly increased state power and of vastly diminished constitutional protections.

Solutions?  Perhaps we can increase the budgets of the various district attorney's offices and USAOs.   This will help eliminate the excuses of strained resources, overworked prosecutors and investigators, and other problems.   Reducing these strains should, theoretically at least, help law enforcers do their jobs properly.    At the very least, this is a better use of taxpayer money than funding "Cash for Clunkers" or the new Fannie Mae program to help defaulting homeowners stay in the homes that previously were "owned" by them (but I digress...that's for another article).

Another solution may be to make prosecutor positions non-elected positions.   Remove the political vagaries and the idiocy of the "street" from the justice system.   (For the same reasons, judges should never be elected.) 

One final note:   Please be encouraged by the fact that, on issues involving civil rights and basic constitutional principles, the supposed divisions among "right" and "left" wing are absent.   The amicus brief I linked to above is signed by both the American Civil Liberties Union and the Cato Institute.

Wednesday, November 4, 2009

Forecasting a Governor Christie

Unlike a third term for Mayor Bloomberg in New York City, or a second term if Jon Corzine had been re-elected, a new administration always has the promise of change, which is almost always interesting if not necessary effective.

At least under a new Governor Christie the Crime, Politics and Policy blog will have much more material.

Crime, Politics and Policy raised serious concerns about candidate Christie being disquietingly quiet regarding his plans for the Attorney General's office. I am sure he has concrete plans...he just did not share them with the electorate pre-election day. Here he has the opportunity to use that office as an advocate, to shape affairs through its investigative and prosecutorial powers. There is a lot of potential here -- and also (as pointed out here) the potential for abuse. He should use it, but wisely.

As Crime, Politics and Policy detailed, some of his 88 proposals for improving the state had alarming legal implications. Certainly some of those proposals would, if enacted, interfere with an activist Attorney General's office. These proposals are just very wrong, misguided and potentially very anti-victim and even very anti-business.

There is one recent law Christie should seek to repeal immediately. I refer to the law just signed weeks ago by Corzine (and blasted here by Crime, Politics and Policy) authorizing the State of New Jersey to create and maintain a registry of all handicapped children, while mandating that doctors report all disability diagnoses to the state. The existence of such a database poses a direct and serious risk of privacy loss to these children, while imposing an additional reporting burden on doctors which is sure to encourage over-diagnosing (and over-medication) of children (!!!) by an already risk-averse profession.    Just think of the diagnoses of disabilities we will see from doctors who will be terrified of making a mistake or of running afoul of the law.  

Finally, I encourage Christie to look outside the box when it comes to judicial appointments. My advice is simple: process is more important than outcome. This means picking judges who value the process and the integrity role of procedure in our system of justice, rather than choosing judges on the basis of issue positions.   Selecting judges based upon rigid ideological litmus tests, whether they be applied by the "right wing" or "left wing" or the "know nothings," is sure to produce disaster.

Crime, Politics and Policy Thisclose on NYC, NJ Predictions

Let's see how Dixon fared with last week's predictions on Tuesday's New York and New Jersey elections.

Last week I predicted that Chris Christie would win New Jersey as follows:  
Christie 47, Corzine 45, Daggett 6

Actual results:  Christie 49%, Corzine 45%, Daggett 6%. 

And in New York City, I predicted Bloomberg would only get 52%, with challenger William Thompson getting 44% and a protest Conservative Party candidate getting 3%.  

Actual results:  Bloomberg 50.6%, Thompson 46%, Christopher (Conservative) 1.6%, others about 1%.

What does this mean?  The significance of these elections is obvious.   The electorate, and particularly the middle class, is very angry on economic issues and is manifesting its class consciousness (a.k.a. resentment of the rich) by kicking out an uber-rich incumbent (Corzine) while rejecting Bloomberg to such a degree that his viability for other elected office should be in serious doubt.   Incumbents who barely reach 50% usually end up not winning ever again (see: Cuomo, Mario). 

Monday, November 2, 2009

Small Companies Have a Right to Privacy: Criticizing a SOX Exemption for Small Issuers

There are scattered reports of a movement afoot to exempt certain "small issuers" from certain audit requirements of Sarbanes-Oxley until regulators can agree on a way to make audit compliance less costly to the companies.

Allowing issuers to avoid more rigorous compliance will just shift the burden of compliance (or noncompliance) to investors. This is not a good idea.

Some of these small companies are barely "going concerns" and are publicly-reporting for no reason other than to allow their owners a way to monetize their investment while still running the company (as opposed to having to sell it for its real, and probably much lower, value). In fact, sme of these issuers are little more than a corporate shell designed to dupe the investing public into buying into a business plan (a.k.a pipe dream).

Here's a radical notion: not every company should go public.   After all, we should uphold the right to privacy, that is, that certain companies absolutely should stay private. 

Message to small companies: if you don't want to run your business long term, and can't afford a reputable auditor of your company for the protection of the same shareholders to whom you owe fiduciary duties, then you have no business being public.    These are the type of companies that often end up trading on the "pink sheets" and having their small share floats manipulated by all sorts of shady people.  

Of course, the Big Board-listed companies never engage in such micro-crap chicanery.   Never.

Sunday, November 1, 2009

Dixon's Razor: Predictions for Election Day

This blog introduces the concept that nothing is harder to hide than one's ignorance, henceforth codified as Dixon's Razor (that is, until someone else changes it on Wikipedia and claims it as his own).

For absolutely no good reason except your amusement, here are predictions for Tuesday's Election Day.   Guaranteed to be wrong to some degree.

NEW YORK CITY MAYOR
Bloomberg (R-I):  52%
Thompson (D-WFP): 44%
Conservative Party candidate Stephen Christopher: 3%

NEW JERSEY GOVERNOR
Chris Christie (R):  47%
Jon Corzine (D): 45%
Chris Daggett (I): 6%

WORLD SERIES
Phillies in 7 (yes, the Yankees are up 2-1 so far).
Sabathia will lose three games in the series.

I promise I'll revisit this post to see how wrong I am.