Patterico's Pontifications

11/18/2010

Send Nancy Pelosi a Thank You Message

Filed under: General — Aaron Worthing @ 2:13 pm

[Guest post by Aaron Worthing; send your tips here.]

Tell her how great a job she did as speaker, here.

In other words, this is a democratic bleg for some serious @$$-kissing.  But that doesn’t mean we can’t join the fun.

I assume each and everyone of them will be screened, but I bet they won’t scrutinize it for long.  My suggestion is to write something that sounds at first like a compliment, enough that they might let it in, but in fact is a subtle dig at her.

And share them with us, if you think they are funny or clever.  But I will warn you that any address you provide is probably going straight into their files for junk mail purposes.  Then again, that means that they will waste their time and stamps sending you correspondence, so its not all bad to get on their list.

[Posted and authored by Aaron Worthing.]

The Inconsistent Verdicts in the Ghailani Case

Filed under: General — Aaron Worthing @ 10:45 am

[Guest post by Aaron Worthing; send your tips here.]

Continuing our commentary on the African Embassy bombing case, what struck me when I learned about the verdict was how inconsistent it all seems.  He was convicted of conspiring to blow up these buildings, an act that resulted in hundreds of deaths, but he was not convicted of murdering any of those people.  From the New York Law Journal:

Clearing the Tanzanian native of four conspiracies and the murder of 224 people in the near-simultaneous bombings of the embassies in Kenya and Tanzania on Aug. 7, 1998, the jury in Judge Lewis A. Kaplan’s courtroom shocked prosecutors and defense lawyers alike with its verdict.

But the prosecution nonetheless succeeded in tying Mr. Ghailani to the bombings. The lone guilty verdict was declared on Count 5, a conspiracy to destroy buildings and property of the United States by means of an explosive. The jury answered a follow-up question in the affirmative, finding that Mr. Ghailani’s conduct in Count 5 “directly or proximately caused death to a person other than a co-conspirator.”

Mr. Ghailani, 36, faces a mandatory minimum of 20 years in prison and a maximum of life when he is sentenced on Jan. 25.

You have to be a lawyer to appreciate just how hard it is to justify that verdict.  You see, it is black letter law on the federal level that once you are convicted of conspiracy you can be held liable for any act that is the reasonably foreseeable result of forming the conspiracy, and in furtherance of that conspiracy.  As the Supreme Court said in Pinkerton v. U.S. (1946):

(more…)

Obama’s Terrorism Failure: The Witness Against Ghailani Would Probably Have Been Allowed to Testify in a Military Commission

Filed under: General — Patterico @ 7:13 am

Last night I wrote about the acquittals of Ahmed Ghailani on 279 of 280 counts relating to the 1998 Tanzania embassy bombing. A couple of commenters challenged me on my assumption that prosecutors would likely have been able to call the key witness against Ghailani if he had been prosecuted by way of a military commission. For example, commenter edgonzo wrote: “The inadmiss[i]ble evidence here would probably not have been admiss[i]ble in a Military Commission either. That being the case, I’m not sure what the point of this post is.”

Not so. As Marc Theissen explained last month:

[I]f the Obama administration insists on prosecuting Ghailani, there is a forum where the key witness against him would almost certainly be permitted to testify: a military commission at Guantanamo Bay.

Kaplan barred the witness because in federal court his testimony is considered the “fruit of the poisonous tree.” But even under the Obama administration’s revised military commission rules, evidence obtained through involuntary statements can be admitted if the government can show that it would have discovered the evidence anyway, or if the court finds the “interests of justice” favor it. As Lt. Col. David Frakt, a Guantanamo defense lawyer and advocate for civilian trials for terrorists, told me, “because the Military Commission Rules of Evidence are more permissive regarding evidence derived from coerced evidence, I do think it is possible that the witness might have been allowed to testify in a military commission.”

The Ghailani prosecution is hanging by a thread today not because of the interrogation techniques employed against him, but because of the Obama administration’s ideological insistence on treating terrorists like common criminals and trying them in federal courts.

Exactly. As I explained last night, the judge who excluded the witness acknowledged that “national security motivated the CIA interrogations” because “[t]he identities and methods of others involved in those bombings, including the source of the explosives, were of critical importance to national security.” But in a civilian court, which devised exclusionary rules designed to address a different situation (typical police interrogation of criminal suspects), the CIA’s motive was not reason enough to admit the evidence. In a military tribunal, I believe the judges would have given greater weight to the CIA’s benevolent motives and admitted the evidence.

This is why Obama’s decision was such an unnecessary disaster.

When Does a Lawyer Have a Duty to Check His or Her Client’s Junk?

Filed under: General — Aaron Worthing @ 6:09 am

[Guest post by Aaron Worthing; send your tips here.]

No, this has nothing to do with the last two TSA-related posts (here and here), but I couldn’t resist riffing off of them.  Consider this largely a light, funny post.

Now virtually every jurisdiction in the United States has some version of Federal Rule 11 in its rules on civil procedure.  You can read it for yourself at the link but it requires that each filing before the courts have a reasonable factual basis (among other things).  For instance, in the case I am about to discuss, the relevant jurisdiction is New Mexico.   The New Mexican version of this is Rule 1-011 NMRA, which requires the attorney to certify that “that to the best of the [attorney’s] knowledge, information and belief there is good ground to support” the legal claims.  Generally this imposes a reasonable duty to check out your clients’ factual assertions to see if they have any basis at all.

In a recently filed suit, a nursing home known as THI of New Mexico at Valle Norte claimed that the Harvey Law Firm failed in that duty.  Specifically the Harvey Law Firm sued THI in a prior case asserting that, um… well… let me let article explain:

The nursing home said the claim wasn’t adequately investigated by lawyers Dusti Harvey and Feliz Rael before they pursued action on behalf of [patient James] Tracy, who has since died. They had claimed that Valle Norte’s negligent care led to a “severe delay in treatment of priapism, resulting in loss of penis.”

Priapism is a persistent painful erection that lasts for more than four hours and is not related to sexual stimulation.

That’s right, those ED commercials aren’t kidding with those warnings.  The original suit further alleged that the man didn’t get proper treatment because the staff “treated the condition as a joke[.]”  Which is terrible.  I mean there is nothing at all funny about priapism.

But juvenile laughter aside, this sounded like a very serious claim potentially worth millions of dollars in damages.  Only there was one small problem:

The nursing home’s lawsuit against the firm said the lawyers pursued litigation “without any medical evidence to show that Mr. Tracy suffered an amputation … or that Valle Norte’s conduct had caused even a remote causal link to any penile injury.”

The lawsuit also said that despite repeated claims by the Harvey law firm that Tracy had lost his penis, before-and-after photographs demonstrate that didn’t happen.

So apparently these lawyers failed to ensure that this suit had a factual basis, by checking if the client’s, um, appendage was actually missing.

Now to be fair to the Harvey Law Firm, these are just allegations at this point.  But it would take a special breed of chutzpah to violate Federal Rule 11 (the new suit is in Federal Court)  in a suit alleging a violation of the New Mexico state equivalent (Rule 1-011 NMRA), so I lean toward believing the nursing home on this one.

And either way, the entire thing is hilarious.

Hat Tip: Above the Law who have their own funny commentary.

Update: Slight edits for early morning bad grammar.  Thanks Dustin, JRM.

[Posted and authored by Aaron Worthing.]


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