As I discussed in November, the relationship between the Iowa Supreme Court and the citizens of Iowa has become more politicized. Prior to 2010, no Iowa judge had ever lost a retention election. Three Iowa Supreme Court justices lost their retention election in 2010. Bob Vander Plaats, a failed Iowa gubernatorial candidate and gay marriage opponent, helped coordinate the efforts of various special interest groups to bring about the loses.
Now Mr. Vander Plaats is calling upon the four Iowa Supreme Court justices who were not up for retention election to resign. As the Quad Cities' Times reports, Mr. Vander Plaats spooke to 30 people at Wise Guys Pizza as part of his effort to launch a grassroots effort to get rid of the four justices. While Mr. Vander Plaats believes the justices should be impeached, he also thinks that Iowans "should give the remaining four justices the opportunity to do the right thing." If the justices fail to do the right thing, they should be impeached because the Iowa Supreme Court unanimous ruling allowing gay marriage exceeded constitutional limits in a way that amounts to malfeasance warranting impeachment. I find the use of the phrase "do the right thing" strange given that I assume that the justices were trying to do the right thing when they unwittingly provoked the ire of Mr. Vander Plaats.
Mr. Vander Plaats made similar statements on March 14 at a Godfather's Pizza in Cedar Rapids Iowa. There Mr. Vander Plaats said the fact that Iowa allows gay marriage could lead to the legalization of polygamy or incest. Mr. Vander Plaats's argument is similar to the one made by Justice Scalia in Lawrence v. Texas. As I am sure you recall, the Lawrence case is the one where the United States Supreme Court struck down a Texas law against sodomy as unconstitutional. Justice Scalia's dissent, like Mr. Vander Plaat's recent speeches, worried that laws against "bigamy, same-sex marriage, adult incest, prostitution, masturbation, fornication, bestiality, and obscenity" were no longer sustainable.
Mr. Vander Plaats's recent public appearances raise a couple of questions. First is there some link between opponents of gay marriage and pizza (or mafia-themed pizza places)? I worked at a pizza place for several years during and after college and did not notice a connection. Perhaps it is like law school and Mr. Vander Plaats figures that by offering people free pizza he will get them to show up and listen to his arguments against gay marriage.
Second, is there any evidence to support slippery slope argument advanced by Mr. Vander Plaats? At first blush, the answer is no. None of the of the states that have legalized gay marriage (or civil unions) have also legalized incest or polygamy. Moreover, it seems unlikely that any state is going to do so. As University of Minnesota Law School professor Dale Carpenter has noted, polygamous marriage has been tried and rejected by many different cultures over human history. Gay marriage has not. Thus, the comparison between the two is somewhat specious. Moreover, polygamous marriage presents legal problems that do not exist if gay marriage is allowed, e.g., if the husband dies whiteout a will, which wife gets what.
However, it is true that the Lawrence decision has been used to strike down other sex crime laws. For example, in Martin v. Ziherl, the Virgina Supreme Court struck down Virgina's law against fornication was struck down solely on the basis of Lawrence. Also, in Reliable Consultants, Inc., v. Earle, 517 F.3d 738 (2008), the Fifth Circuit struck down a Texas law banning the sale of any devise, to quote the law in question "designed or marketed as useful primarily for the stimulation of human genital organs." So perhaps Mr. Vander Plaats's concern over the expansion of the gay marriage decision is not entirely misplaced.
On the other hand, the Lawrence decision has not prompted Courts to strike down, as Justice Scalia speculated, laws prohibiting incest, prostitution, or obscenity. See e.g., Muth v. Frank, 412 F.3d 808 (7th Cir. 2005)(upholding Wisconsin law prohibiting incest from a challenge based on Lawrence, State v. Lowe, 112 Ohio St.3d 507 (Ohio Ct. App. 2006) (upholding Ohio law prohibiting incest, State v. Romano, 114 Hawai'i 1 (2007) (holding laws prohibiting prostitution from a Lawrence challenge, U.S. v. Stagliano, 693 F. Supp.2d 25 (D.D.C. 2010) (finding Lawrence does not render laws against obtaining or distributing obscene material unconstitutional).
All of this is a long way of saying that while Mr. Vander Plaats' arguments may or may not be misplaced, Iowa's retention elections in 2012 and 2014 are apparently going to be as contentious as the one in 2010. Do we think that is a good thing?
Friday, March 18, 2011
Monday, March 14, 2011
Squirrels
In case you have any questions about squirrels, here is the definitive FAQ.
But if you have any questions about the proper placement of commas, please look elsewhere.
But if you have any questions about the proper placement of commas, please look elsewhere.
Seeing is believing; and sometimes it is a crime
At Mr. Gillette's request, I am separately posting my response (originally posted as a comment) to his very interesting post about the recent sentencing of a government attorney in Maine on child pornography charages.
Mr. Gillette focuses not on the case itself, but on commentary about the case by Peter C. Lomtevas, an attorney in New York. I'd like to defend Mr. Lomtevas a little bit.
Mr. Gillette is correct that Lomtevas's points are somewhat disconnected to the actual case at hand. Namely, this was not a case of planted porn, and the AG's conduct went beyond the "mere possession" of child pornography -- the government's trial brief details quite a bit more than that, including transferring the materials across state lines.
But I think Lomtevas's aim was broader -- he's indicting the laws that criminalize the mere possession of child pornography because they lead to invasions of privacy and are too easy to use offensively. As he says, "The real problem in these situations is that the man did not produce these images, he only shuttled them around." I agree that this a problem. Of all the child-pornography prosecutions I have become aware of, not one involves the actual production of this heinous material.
Why not? Well, Lomtevas has a theory: "the United States has a fundamental inability to control anything that is on the internet just like it cannot control its own borders or the foreign production of drugs." In fact, my guess is that the vast majority of this material is produced overseas. The result, as Lomtevas points out, is that "one producer [of child porn] can cause the incarceration of potentially millions of people. The U.S. has no control over the producer but can attack its own citizens."
And what exactly are these citizens being attacked for? It seems beyond dispute that the production of child pornography is far, far more destructive and culpable behavior than downloading, uploading, or carrying it across state lines in a computer. But our entire enforcement regime against child porn seems focused on this lesser conduct -- going after the perverts for whom the Internet has opened up a terrible opportunity to indulge their deviant fantasies, but who would likely (in my opinion) never harm an actual child. In my opinion, this lesser conduct should not be illegal, given the invasions of privacy and thought policing it invites. But if it is going to be illegal, the punishments should be far, far lower than they are. Viewing pictures of the molesting of a child is not laudable behavior; but it is utterly distinct from actually molesting a child. Our law bizarrely treats them as virtually identical acts.
Mr. Gillette focuses not on the case itself, but on commentary about the case by Peter C. Lomtevas, an attorney in New York. I'd like to defend Mr. Lomtevas a little bit.
Mr. Gillette is correct that Lomtevas's points are somewhat disconnected to the actual case at hand. Namely, this was not a case of planted porn, and the AG's conduct went beyond the "mere possession" of child pornography -- the government's trial brief details quite a bit more than that, including transferring the materials across state lines.
But I think Lomtevas's aim was broader -- he's indicting the laws that criminalize the mere possession of child pornography because they lead to invasions of privacy and are too easy to use offensively. As he says, "The real problem in these situations is that the man did not produce these images, he only shuttled them around." I agree that this a problem. Of all the child-pornography prosecutions I have become aware of, not one involves the actual production of this heinous material.
Why not? Well, Lomtevas has a theory: "the United States has a fundamental inability to control anything that is on the internet just like it cannot control its own borders or the foreign production of drugs." In fact, my guess is that the vast majority of this material is produced overseas. The result, as Lomtevas points out, is that "one producer [of child porn] can cause the incarceration of potentially millions of people. The U.S. has no control over the producer but can attack its own citizens."
And what exactly are these citizens being attacked for? It seems beyond dispute that the production of child pornography is far, far more destructive and culpable behavior than downloading, uploading, or carrying it across state lines in a computer. But our entire enforcement regime against child porn seems focused on this lesser conduct -- going after the perverts for whom the Internet has opened up a terrible opportunity to indulge their deviant fantasies, but who would likely (in my opinion) never harm an actual child. In my opinion, this lesser conduct should not be illegal, given the invasions of privacy and thought policing it invites. But if it is going to be illegal, the punishments should be far, far lower than they are. Viewing pictures of the molesting of a child is not laudable behavior; but it is utterly distinct from actually molesting a child. Our law bizarrely treats them as virtually identical acts.
Saturday, March 12, 2011
UPDATED -- Bev & Beverly Stayart: American Originals
UPDATE -- 10/7/2013:
The Supreme Court denied certiorari today in Stayart's appeal of the case against Google.
UPDATE -- 3/12/2011
Stayart's suits against Google and Yahoo were dismissed (for failure to state a claim and, in Yahoo's case, lack of jurisdiction as well) on March 8th. Here is the order in the Yahoo case.
ORIGINAL POST -- 10/1/2010
Today the Seventh Circuit Court of Appeals affirmed the dismissal of a somewhat quixotic Lanham Act claim by a woman named Beverly "Bev" Stayart. From the opinion:
The Supreme Court denied certiorari today in Stayart's appeal of the case against Google.
UPDATE -- 3/12/2011
Stayart's suits against Google and Yahoo were dismissed (for failure to state a claim and, in Yahoo's case, lack of jurisdiction as well) on March 8th. Here is the order in the Yahoo case.
ORIGINAL POST -- 10/1/2010
Today the Seventh Circuit Court of Appeals affirmed the dismissal of a somewhat quixotic Lanham Act claim by a woman named Beverly "Bev" Stayart. From the opinion:
Like many, Beverly Stayart was curious about what she would find when she put her name into a search engine. In this case it was Yahoo. To her dismay, the comprehensive search results eventually contained links to websites and advertisements that she found shameful. She then sued Yahoo and the other defendants alleging trademark infringement and a host of state law claims. The district court dismissed her complaint, finding she lacked standing under the Lanham Act to sue for trademark infringement. She appeals, and because we agree that Stayart lacks standing under the Lanham Act, we affirm.Some interesting factoids after the jump.
Friday, March 11, 2011
Planting pornography on someone's computer.
An attorney in the Maine Attorney General's office was recently sentenced to sixteen years in prison for possession of child pornography. Although we frequently mention the crimes, foibles, and faux pas of prosecuting attorneys, this post is not about that attorney. The judge in the case summed up my views on the matter:
A disgruntled wife planting child porn on a prosecuting attorney’s computer as part of divorce strategy would be a horrific act. However the issue I have with Mr. Lometevas's comment is that it no one involved in the case seems to think that is the defendant's wife planted the evidence.
First, as this story makes clear, the child pornography was not discovered as a result of a search by anyone in the attorney’s family. Instead, Yahoo! reported finding child pornography in photos of an account holder later identified as the attorney’s wife. The article further explains, “The Yahoo! reports were made to the National Center for Missing and Exploited Children in Alexandria, Va., an organization that works with local, state and federal investigators.” So, no family members made the report and the account holder was not the defendant (as one might expect if it were planted) but the defendant’s wife.
Still, given that it was in the wife’s account, we can assume the defense was that the wife planted the photos, right? Wrong. As the Kennebec Journal reports, the defense argued that “someone from outside his family's home in Hallowell might have been responsible for the explicit images found on their four computers, or that the images had been downloaded by his 12-year-old autistic son.” So while the defense was willing to blame strangers or a handicapped boy, it was not willing to blame the wife. Moreover, as this article notes, the attorney's (now ex)wife agreed to be responsible for him while he was on bail. Hardly the actions of someone wishing to isolate the defendant from his children.
While Mr. Lometevas is wrong that the this case right involves a disgruntled wife planting child porn on a hapless husband’s computer, it apparently does happen. A Westlaw search of all federal and state cases revealed three cases where the topic came up. In United States v. Starr, 533 F.3d 985, 999 (8th Cir. 2008), the defendant claimed his wife planted child porn on his computer. However, the victim testified that she sent the photos to the defendant. Based on this testimony, the Eighth Circuit rejected the defendant’s appeal that there was no evidence that he possessed the images prior to his wife providing them to the police. In State v. Sanders, 126 S.W.3d 5, 28 (Mo. Ct. App. 2003), the defendant claimed that his ex-wife planted the child pornography. He was allowed to present the defense but was convicted. Finally, there is one case where a court found that the wife did plant child porn on her husband’s computer. That happened in Tauck v. Tauck, FA054004889S, 2007 WL 3087962 (Conn. Super. Ct. Sept. 21, 2007), a Connecticutt divorce case. Lasting 86 days and generating more than $13 million in attorneys fees, the New York Post reports that the Tauk divorce trial was the largest and most expensive in Connecticut history.
It was good that Mr. Lometevas drew attention to this issue. I had never heard of it before. I just wish he would have done so without suggesting that the the wife of this particular defendant had done such a monstrous thing.
You were working in a position of authority and respect, and here you are not on the right side of the book but in the defendant's seat. ... A criminal,. . . You lost your job, your wife, your assets, your reputation, and your freedom. For what? To view images of children being sexually assaulted and abused. Images that are sickening and sad.But the comment by Peter C. Lometevas caught my attention. According to his website, Mr. Lometevas is an attorney in New York specializing in criminal defense and family law matters. Mr. Lomtevas comments that he has represented men in what he calls “guilt by computer cases.” According to Mr. Lomtevas,
Mr. Lometevas goes on to say, "Divorcing couples know this and now child porn appears on a prosecutor’s computer. An over zealous judge who knows nothing about how the internet operates craps all over the man.”The common thread in them is a wife who wants to isolate children from the man. Family members obtain the computer and find child pornography on them. These searches are valuable because there is a federal law prohibiting possession of child porn so it pays to find – perhaps even plant – this stuff on a man’s computer.
A disgruntled wife planting child porn on a prosecuting attorney’s computer as part of divorce strategy would be a horrific act. However the issue I have with Mr. Lometevas's comment is that it no one involved in the case seems to think that is the defendant's wife planted the evidence.
First, as this story makes clear, the child pornography was not discovered as a result of a search by anyone in the attorney’s family. Instead, Yahoo! reported finding child pornography in photos of an account holder later identified as the attorney’s wife. The article further explains, “The Yahoo! reports were made to the National Center for Missing and Exploited Children in Alexandria, Va., an organization that works with local, state and federal investigators.” So, no family members made the report and the account holder was not the defendant (as one might expect if it were planted) but the defendant’s wife.
Still, given that it was in the wife’s account, we can assume the defense was that the wife planted the photos, right? Wrong. As the Kennebec Journal reports, the defense argued that “someone from outside his family's home in Hallowell might have been responsible for the explicit images found on their four computers, or that the images had been downloaded by his 12-year-old autistic son.” So while the defense was willing to blame strangers or a handicapped boy, it was not willing to blame the wife. Moreover, as this article notes, the attorney's (now ex)wife agreed to be responsible for him while he was on bail. Hardly the actions of someone wishing to isolate the defendant from his children.
While Mr. Lometevas is wrong that the this case right involves a disgruntled wife planting child porn on a hapless husband’s computer, it apparently does happen. A Westlaw search of all federal and state cases revealed three cases where the topic came up. In United States v. Starr, 533 F.3d 985, 999 (8th Cir. 2008), the defendant claimed his wife planted child porn on his computer. However, the victim testified that she sent the photos to the defendant. Based on this testimony, the Eighth Circuit rejected the defendant’s appeal that there was no evidence that he possessed the images prior to his wife providing them to the police. In State v. Sanders, 126 S.W.3d 5, 28 (Mo. Ct. App. 2003), the defendant claimed that his ex-wife planted the child pornography. He was allowed to present the defense but was convicted. Finally, there is one case where a court found that the wife did plant child porn on her husband’s computer. That happened in Tauck v. Tauck, FA054004889S, 2007 WL 3087962 (Conn. Super. Ct. Sept. 21, 2007), a Connecticutt divorce case. Lasting 86 days and generating more than $13 million in attorneys fees, the New York Post reports that the Tauk divorce trial was the largest and most expensive in Connecticut history.
It was good that Mr. Lometevas drew attention to this issue. I had never heard of it before. I just wish he would have done so without suggesting that the the wife of this particular defendant had done such a monstrous thing.
Thursday, March 10, 2011
A classic example of what?
A jury in Ramsey County District Court convicted Maksud Mahbub of sexually assaulting four women. According to reports in the Minneapolis Star Tribune, Mr. Mahbub would go to bars look for extremely intoxicated women, convince them to get in his car, and then take them hope and rape or grope them. Mr. Mahbub faces a sentence of at least four years in prison.
After the verdict, Earl Gray, Mr. Mahbub’s attorney, offered the case this way, “It's a classic example of someone who doesn't understand our culture being convicted of crimes he didn't intend to commit.” What is Mr. Gray trying to say? The phrase “classic example” does not make sense. If one says something is a classic example of mistaken identity, the listener instantly understands that the wrong person has been identified. The situation is classic because we have all seen or read of this situation in movies, television, or books. One example is the Alfred Hitchcock film “The Wrong Man.” Likewise, if someone says that a child is a “classic example of an only child” the listener understands that the child in question has parents who spoil the child. Again, we know what the speaker means because various media have presented us with the situation in the past. This stereotype is so common that articles are written trying to debunk it.
What examples are there of “someone who doesn’t understand our culture being convicted of crimes he didn’t intend to commit”? Mr. Gray says that this is a “classic example” of that particular phenomenon. I have no idea what he means.
After the verdict, Earl Gray, Mr. Mahbub’s attorney, offered the case this way, “It's a classic example of someone who doesn't understand our culture being convicted of crimes he didn't intend to commit.” What is Mr. Gray trying to say? The phrase “classic example” does not make sense. If one says something is a classic example of mistaken identity, the listener instantly understands that the wrong person has been identified. The situation is classic because we have all seen or read of this situation in movies, television, or books. One example is the Alfred Hitchcock film “The Wrong Man.” Likewise, if someone says that a child is a “classic example of an only child” the listener understands that the child in question has parents who spoil the child. Again, we know what the speaker means because various media have presented us with the situation in the past. This stereotype is so common that articles are written trying to debunk it.
What examples are there of “someone who doesn’t understand our culture being convicted of crimes he didn’t intend to commit”? Mr. Gray says that this is a “classic example” of that particular phenomenon. I have no idea what he means.
Wednesday, March 9, 2011
Wow.
I am not sure what to say about this. One hopes this puts us a step closer to everyone having their own jet packs. That said, I am not sure why Jetman thought he needed to have his flight surrounded by two wing walkers. Would it have be insufficiently impressive if it was just a guy flying a jet pack with wings?
Wednesday, March 2, 2011
The understatement of the year (so far).
In a remarkable bit of candor, a member of the Minnesota Senate has admitted that a bill he purportedly authored is "really stupid." According to the Bemidji Pioneer, Republican John Carlson, a freshman senator representing Bemidji, Minnesota, has pulled a bill that would have repealed Minnesota's Pay Equity Act. The Pay Equity Act is eliminates gender-based wage disparities in public employment in Minnesota local governments.
As you might imagine, Senator Carlson’s bill caused a bit of a stir. The Pioneer ran an editorial against the bill and Senator Carlson wrote an op-ed opinion defending it on February 15.
Since his op-ed, Senator Carlson changed his view of the bill. He recently told a group of Minnesota teachers that he pulled the bill. He also apologized for authoring the bill. I am not sure he should have apologized for that since the Pioneer’s article makes it seem like he did not, in fact, author the bill. How does the article do that? By presenting Senator Carlson’s admission that he didn't know what the bill did. Senator Carlson said “What I was told by the League of Minnesota Cities was not to worry about it as it’s not about fair pay for women. It’s about some onerous reporting problems and it costs a lot.” So, because his interest group said that the bill he wanted to repeal was not about pay equity (despite the name of the bill), Senator Carlson just went along with what he was told. It apparently did not occur to him that the cost in question was, you know, paying women as much as men. Nor did it occur to him to check.
To his credit, Senator Carlson admits that he “didn’t do [his] homework very well.” One might suggest, that he did not do his homework at all. However, we should keep in mind that, as Senator Carlson puts it, “When you’re new in the Legislature, the learning curve is unbelievably steep and we honestly don’t know what we don’t know.” I can certainly agree that we often don’t know what we don’t know. However, I would have assumed that the “author” of a piece of legislation might know what his bill actually does.
As you might imagine, Senator Carlson’s bill caused a bit of a stir. The Pioneer ran an editorial against the bill and Senator Carlson wrote an op-ed opinion defending it on February 15.
Since his op-ed, Senator Carlson changed his view of the bill. He recently told a group of Minnesota teachers that he pulled the bill. He also apologized for authoring the bill. I am not sure he should have apologized for that since the Pioneer’s article makes it seem like he did not, in fact, author the bill. How does the article do that? By presenting Senator Carlson’s admission that he didn't know what the bill did. Senator Carlson said “What I was told by the League of Minnesota Cities was not to worry about it as it’s not about fair pay for women. It’s about some onerous reporting problems and it costs a lot.” So, because his interest group said that the bill he wanted to repeal was not about pay equity (despite the name of the bill), Senator Carlson just went along with what he was told. It apparently did not occur to him that the cost in question was, you know, paying women as much as men. Nor did it occur to him to check.
To his credit, Senator Carlson admits that he “didn’t do [his] homework very well.” One might suggest, that he did not do his homework at all. However, we should keep in mind that, as Senator Carlson puts it, “When you’re new in the Legislature, the learning curve is unbelievably steep and we honestly don’t know what we don’t know.” I can certainly agree that we often don’t know what we don’t know. However, I would have assumed that the “author” of a piece of legislation might know what his bill actually does.
Tuesday, March 1, 2011
March Madness
Okay, so February was a bad month here at the Gillette-Torvik Blog. Except for one post, we took an unscheduled hiatus. I, for one, promise to do better in March. In exchange for increased blogging, however, you may notice a lot more posts about ... college basketball.
Tuesday, February 22, 2011
Bad days to be a judge in PA.
It has been a bad couple of days for the judiciary in Pennsylvania. As the Associated Press reports, on Friday, Luzerne County Judge Mark Ciavarella was convicted of racketeering for taking over $900,000 in kickbacks from the builder of a for-profit juvenile detention center. He also failed to report these payments on his state-mandated financial disclosure forms. Moreover, he was tripped up by the same problem that caused Al Capone’s imprisonment. Judge Ciavarella did not pay taxes on the income the money he received.
Judge Ciavarella was convicted on 12 counts of racketeering, money laundering, and conspiracy. He was also acquitted of 27 other counts. Although he could get 157 years in prison on the convictions, prosecutors apparently intend to seek a sentence of around 12 years on the convictions. Judge Ciavarella, who was apparently (in)famous for ordering his juvenile defendants to be immediately shackled, handcuffed, and taken away without saying goodbye to their families, was released after the verdicts. He will remain free pending sentencing. Poetic justice is apparently not available in the United States District Court for the Middle District of Pennsylvania.
The judge’s actions caused the Pennsylvania Supreme Court to dismiss 4,000 juvenile convictions the Judge issued because he sentenced juveniles without regard for their constitutional rights, including the right to counsel.
So faced with 12 years in prison, an order to pay back the 900 grand, and 4000 convictions set aside, what did the judge do? He declared victory, of course. Al Flora, the judge’s attorney stated that he was “amazed” and that the “jury rejected 95% of the government’s case.” I wonder if it will still feel like a victory during the 12 years in prison.
An odd part of the case is that the person who led them to the judges is the reputed boss of a northeastern Pennsylvania Mafia family. William D'Elia. Mr. D’Elia became a government informant after his 2006 arrest on charges of witness tampering and conspiracy to launder drug money.
In other judges behaving badly news, there will a rather interesting hearing tomorrow in the district court of Adams County, Pennsylvania. As the York Daily Record notes, Janan Tallo, a public defender in York County, Pennsylvania, is seeking permanent order protecting her from abuse. Who is her alleged abuser? He is York County Judge Thomas Kelley. Ms. Tallo alleges that Judge Kelley, her “current or former sexual or intimate partner,” picked her up and slammed her to the floor of his home. She alleges that by slamming her to the floor, Judge Kelley broke her elbow. Ms. Tallo requested, and was granted, a temporary protection-from-abuse order and is now seeking a permanent order. The hearing is scheduled for 11:00 a.m., on February, 23.
The alleged abuse occurred around 11:30 p.m. on February 8 when Judge Kelley and Ms. Tallo had an argument over the phone. Ms. Tallo decided to drive to Judge Kelley’s home. He apparently invited her in, grabbed her, and slammed her to the floor. Ms. Tallo then left to go to the emergency room.
Judge Kelley, you may or may not be surprised to learn, denies that any abuse took place. In a statement released by his lawyer, Christopher Ferro, Judge Kelley “categorically” denied the “unfounded and false allegations that are contained in the recently filed, one-sided” request for protection. Because “Judge Kelley has too much respect for the judicial process,” he prefers “to address the matters in the proper forum and in an appropriate manner.” I wonder if the broke elbow part is false. Because it seems like it would be pretty easy to prove one had a broken elbow.
This case raises a number of questions. First, how can a judge have “too much respect for the judicial process?” Second, by calling Ms. Tallo’s petition “unfounded and false,” “one-sided,” and “baseless” in a statement to the media, didn't the judge address the allegations to the media? Third, is the broken elbow part false? Because it seems like it would be easy to prove one has a broken elbow. Fourth, what does Pennsylvania’s Code Judicial Conduct say about these sorts of relationships?
To answer the last question, Pennsylvania’s Code of Judicial Conduct doesn’t talk much about judges dating defense attorneys, or anyone else for that matter. Cannon 2 of the code states that “Judges should avoid impropriety and the appearance of impropriety in all their activities.” The official note to the cannon doesn’t talk about dating but does say that judges “must therefore accept restrictions on their conduct that might be viewed as burdensome by the ordinary citizen and should do so freely and willingly.” Perhaps dating public defenders falls into this category.
Cannon 3 of the code gets a little more specific. It states that “judges should perform the duties of their office impartially and diligently.” Subsection C of Cannon 3 says that Judges should disqualify themselves in proceedings in which their impartiality might reasonably be questioned. This includes cases in which their spouse, “or a person within the third degree of relationship” acts as a lawyer in the proceeding. Ms. Tallo is not the judge’s spouse. As the note to Cannon 3 makes clear, a third degree relationship includes the “parents, grandparents, aunts or uncles, siblings, nieces or nephews or their spouses” of the judge or the judge’s spouse. According to the note, cousins are not covered by the rule. The cannon doesn’t talk about people whom the judge might date or have a “sexual or intimate” relationship. Prior the abuse allegation, the judge was hearing cases where Ms. Tallo was representing defendants.
But Judge Kelley isn’t hearing these cases anymore. In fact, now that these charges have come out he isn’t hearing any criminal cases where the defendant is represented by a public defender. York County President Judge (what an awesome title) Steven P. Linebaugh has removed Judge Kelley from all criminal cases. As one of only four judges on the York County criminal docket, I imagine this is a lot of cases. Implicitly noting the judicial cannons’ lack of guidance about romantic/sexual relationships, Judge Linebaugh said "If he is found to have done the things that are alleged, I expect the judicial disciplinary board would then have to determine if there has been any violation of the canons of judicial ethics" (emphasis mine).
So what do we take away from these incidents? I guess the lessons are that Judges ought to declare the kickbacks they receive and also not literally beat-up defense attorneys.
Judge Ciavarella was convicted on 12 counts of racketeering, money laundering, and conspiracy. He was also acquitted of 27 other counts. Although he could get 157 years in prison on the convictions, prosecutors apparently intend to seek a sentence of around 12 years on the convictions. Judge Ciavarella, who was apparently (in)famous for ordering his juvenile defendants to be immediately shackled, handcuffed, and taken away without saying goodbye to their families, was released after the verdicts. He will remain free pending sentencing. Poetic justice is apparently not available in the United States District Court for the Middle District of Pennsylvania.
The judge’s actions caused the Pennsylvania Supreme Court to dismiss 4,000 juvenile convictions the Judge issued because he sentenced juveniles without regard for their constitutional rights, including the right to counsel.
So faced with 12 years in prison, an order to pay back the 900 grand, and 4000 convictions set aside, what did the judge do? He declared victory, of course. Al Flora, the judge’s attorney stated that he was “amazed” and that the “jury rejected 95% of the government’s case.” I wonder if it will still feel like a victory during the 12 years in prison.
An odd part of the case is that the person who led them to the judges is the reputed boss of a northeastern Pennsylvania Mafia family. William D'Elia. Mr. D’Elia became a government informant after his 2006 arrest on charges of witness tampering and conspiracy to launder drug money.
In other judges behaving badly news, there will a rather interesting hearing tomorrow in the district court of Adams County, Pennsylvania. As the York Daily Record notes, Janan Tallo, a public defender in York County, Pennsylvania, is seeking permanent order protecting her from abuse. Who is her alleged abuser? He is York County Judge Thomas Kelley. Ms. Tallo alleges that Judge Kelley, her “current or former sexual or intimate partner,” picked her up and slammed her to the floor of his home. She alleges that by slamming her to the floor, Judge Kelley broke her elbow. Ms. Tallo requested, and was granted, a temporary protection-from-abuse order and is now seeking a permanent order. The hearing is scheduled for 11:00 a.m., on February, 23.
The alleged abuse occurred around 11:30 p.m. on February 8 when Judge Kelley and Ms. Tallo had an argument over the phone. Ms. Tallo decided to drive to Judge Kelley’s home. He apparently invited her in, grabbed her, and slammed her to the floor. Ms. Tallo then left to go to the emergency room.
Judge Kelley, you may or may not be surprised to learn, denies that any abuse took place. In a statement released by his lawyer, Christopher Ferro, Judge Kelley “categorically” denied the “unfounded and false allegations that are contained in the recently filed, one-sided” request for protection. Because “Judge Kelley has too much respect for the judicial process,” he prefers “to address the matters in the proper forum and in an appropriate manner.” I wonder if the broke elbow part is false. Because it seems like it would be pretty easy to prove one had a broken elbow.
This case raises a number of questions. First, how can a judge have “too much respect for the judicial process?” Second, by calling Ms. Tallo’s petition “unfounded and false,” “one-sided,” and “baseless” in a statement to the media, didn't the judge address the allegations to the media? Third, is the broken elbow part false? Because it seems like it would be easy to prove one has a broken elbow. Fourth, what does Pennsylvania’s Code Judicial Conduct say about these sorts of relationships?
To answer the last question, Pennsylvania’s Code of Judicial Conduct doesn’t talk much about judges dating defense attorneys, or anyone else for that matter. Cannon 2 of the code states that “Judges should avoid impropriety and the appearance of impropriety in all their activities.” The official note to the cannon doesn’t talk about dating but does say that judges “must therefore accept restrictions on their conduct that might be viewed as burdensome by the ordinary citizen and should do so freely and willingly.” Perhaps dating public defenders falls into this category.
Cannon 3 of the code gets a little more specific. It states that “judges should perform the duties of their office impartially and diligently.” Subsection C of Cannon 3 says that Judges should disqualify themselves in proceedings in which their impartiality might reasonably be questioned. This includes cases in which their spouse, “or a person within the third degree of relationship” acts as a lawyer in the proceeding. Ms. Tallo is not the judge’s spouse. As the note to Cannon 3 makes clear, a third degree relationship includes the “parents, grandparents, aunts or uncles, siblings, nieces or nephews or their spouses” of the judge or the judge’s spouse. According to the note, cousins are not covered by the rule. The cannon doesn’t talk about people whom the judge might date or have a “sexual or intimate” relationship. Prior the abuse allegation, the judge was hearing cases where Ms. Tallo was representing defendants.
But Judge Kelley isn’t hearing these cases anymore. In fact, now that these charges have come out he isn’t hearing any criminal cases where the defendant is represented by a public defender. York County President Judge (what an awesome title) Steven P. Linebaugh has removed Judge Kelley from all criminal cases. As one of only four judges on the York County criminal docket, I imagine this is a lot of cases. Implicitly noting the judicial cannons’ lack of guidance about romantic/sexual relationships, Judge Linebaugh said "If he is found to have done the things that are alleged, I expect the judicial disciplinary board would then have to determine if there has been any violation of the canons of judicial ethics" (emphasis mine).
So what do we take away from these incidents? I guess the lessons are that Judges ought to declare the kickbacks they receive and also not literally beat-up defense attorneys.
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