That's the Two-Tiered System I Know!

I bet St. Thomas (Fl) is proud to claim Judge Barbara McCarthy as an alumnus, but after reading this article, I have to wonder what the hell she learned there in three years.

To sum up, this wealthy 36-year old "suburban brat" had over 50 previous moving violations and was on probation when he was drag racing his Porsche, killed two businessmen from Britain, and fled the scene. Florida law provides for up to 45 years in prison for this sort of reckless manslaughter. His sentence?

[He] was sentenced by Judge McCarthy to a mere two years of house arrest — in one of his wealthy parents’ luxury oceanfront condos — after agreeing to write big checks to the victims’ widows.

In clearly defining that the rich have their own criminal laws in this country, Judge McCarthy had this to say:

The need for restitution does outweigh the need for prison.

That's a record-scratching admission from a criminal judge, isn't it? Apparently, the guy made a deal with the widows to pay them off immediately so they would go to the judge and ask her to only give him house arrest. The judge's job in this case is to laugh, politely decline, and actually put people like in jail. If restitution outweighs the need for prison, why don't we just saddle people with non-dischargable civil judgments and call it a day? No jail at all - just pay back whatever victims!

Because there is and was no need for restitution to have anything to do with the criminal sanction. They should generally have much to do with each other. We put people in prison to incapacitate them so they can't do this reckless shit to anyone else. We put them there as non-monetary punishment for bad behavior, to deter others from doing the same behavior.

Besides, there was less risk of the victims' families not getting paid here than there normally is. If he doesn't settle the civil suit immediately and the judge throws the book at him, the widows grab a contingency lawyer and sue the shit out of the guy. It will, of course, take more time and may prove difficult to collect, but that's why you buy life insurance. In any event, the guy's family has an incentive to settle the civil case since he's the heir to a jewelry fortune and I can't imagine they'd want either the bad publicity or the hassle (clearly, they didn't even want the hassle of actually raising a child).

What was really needed here was social deterrence, not restitution. This idiot had already spent six months in prison for drug charges and violating his probation. Looking at this, what, exactly, is going to stop the wealthy from trampling on the peons? What about the societal value in having a justice system that applies equally? We have criminal law to help control anti-social behavior. The entire purpose is blown if we let the elite buy get-out-of-jail free cards. That, Judge McCarthy, is worth more than restitution to two families who have a clear and obvious remedy in the civil system.

So to sum up, if you're poor, you will treated like dirt and often sentenced to prison for lower crimes, like petty theft, low-level drug charges, prostitution, etc. One reason California's prison system is so overcrowded is because their "3 strikes law" is a convenient way to saddle poor people with long jail sentences for habitual "lesser" crimes.

But if you're rich, you can rack up minor violations, drug charges, etc. and mow down people while driving a Porsche and YOU, because your family is loaded, get to watch TV for two months in mom and dad's crib instead of going to jail for 5 years. Maybe play a little X-box, too, games like Grand Theft Auto (Why play the game? He could probably do the real deal and get like a year, max).

It begs the question why Florida even wasted public resources prosecuting the guy when they could have been hammering those evil, evil pot dealers and hookers who can't make a good living doing anything else. Why not just let this Thomas Crown wannabe write a check to the officers?

When McCarthy ordered LeVin at his sentencing hearing to take the gum out of his mouth and make a statement, he turned red and blubbery and said he felt shame, but he never actually apologized.

Why would he? Obviously, the elite parents here didn't know how to teach this jackoff how to act responsibly and in 35+ years nothing has made him figure it out. What does he have to be sorry for, exactly? Judge McCarthy's sentence basically endorsed his extreme recklessness so long as there was restitution. Because he killed two people acting like an asshat? So what? If he hasn't gained many socially-positive virtues in 35+ years, do you think he has any appreciation for the value of human life?

Honestly, what use does someone like that have for the criminal laws if they have no teeth to them? Meanwhile, you, I, and the other schlubs will be subject to the other set of rules. Of course, most of us never act like complete asshats because we know if we do, we'll actually go to the slammer.

It'd be nice if the hyper-wealthy could feel exactly the same way.

Quinnipiac to Retain Felon Administrator

Yesterday, I reported on Mary Ellen Durso, who, despite being found guilty of fraud and tax evasion to the tune of $126,000, was only getting three years of probation.

Today, we find out that Mary Ellen Durso will get to retain her job as Registrar and Dean of Academic Affairs.

Mary Ellen Durso will stay on board as Quinnipiac’s Law School registrar after being sentenced to three years probation for bank fraud and conspiracy, according to Law School Dean Brad Saxton....

“I have conducted a careful review of the situation and continue to have complete confidence in Dean Durso’s ability to perform her duties here responsibly,” Saxton said in the e-mail, sent out to law students, faculty and administration.

Pardon my French, but what the fucking hell. Quinnipiac is running an organization whose sole purpose is to groom future professionals who have to pass a character and fitness test and maintain standards of responsibility. If a lawyer did this, it would be a one-way ticket to disbarment and job loss. There is no forgiveness when a lawyer commits a felony, especially one that requires dishonesty as an element of the crime.

For Quinnipiac not to terminate this woman immediately is hypocritical and absurd. Quinnipiac's students - many of whom have a very hard time finding jobs even if they are ethical saints - may be rejected for character and fitness reasons if they have something as benign as consumer debt. I have no doubt that Quinnipiac would waste no time kicking a student out of school if that student conspired to commit $126,000 worth of fraud. But this administrator not only gets to keep her job, but gets to retain a prestigious title and is left in charge of student enrollment.

Sweet Georgia Brown, this woman belongs in jail, not administering the affairs of a professional school. But then again, I guess maybe conspiring to defraud people may make one more qualified to help run a law school given the creative accounting used to keep luring in federally-backed loan dollars.

This Week in Law Professor Justice

Three stories today about teachers in the legal profession getting into disciplinary matters.

First up, we have Quinnipiac assistant dean Mary Ellen Durso, who was "sentenced to three years of probation and six months of home confinement for her role in a scheme to defraud a mortgage lender and for filing false tax returns." The damage? $126,000. That's right, kids, if you're black and you deal a few thousand in drugs, you're going to prison. If you're an executive or administrator and you defraud people for ten times as much, you get home confinement. Brilliant.

Second, we have Widener professor Lawrence Connell, who I wrote about last month when he got in trouble for apparently doing what professors every do when he used the dean's name in some absurd hypos. Thankfully, it appears the faculty committee has some sense as they've recommended against firing him.

In an interesting twist, it seems Prof. Connell is actively investigating and plans to go after the students who denounced him:

"We're trying to figure out who those two students are right now. We've got it narrowed down to three," [Connell's attorney] said. "We can sue the students for defamation in state court immediately. We're not going to sit back and be a punching bag on this."

My desire for morbid entertainment has me hoping this will continue. Third-tier professor v. a few third-tier students who were probably annoyed they got B-'s on the curve. Has promise.

Third, we have George Washington adjunct lecturer Richard Lieberman, who was arrested by U.S. Customs authorities on six counts of child exploitation:

According to the charges, between Aug. 11 and Aug. 25, 2010, Mr. Lieberman used the Internet to sexually entice those he believed were two different girls under the age of 16 years. In fact, the charges said, he was engaging in online conversations with two undercover agents in Florida posing as 10 and 13-year-old girls.

Mr. Lieberman is accused of sending the “13-year-old girl” an image of a naked man, engaging in a sexually explicit conversation with the “10-year-old girl” and sending her website links to images of male and female genitalia.

GWU has already deleted his faculty profile (innocent until proven guilty, eh?), but if you go soon enough, you can see it on google cache.

Richard D. Lieberman is a principal in the Washington, D.C. firm of McCarthy, Sweeney & Harkaway, P.C., and has been a government contracts attorney since 1988, concentrating on counseling government contracts clients, claims, bid protests, criminal investigations, audits, contract compliance programs, Federal Supply (multiple award) Schedule contracts and debarment proceedings. He is a former deputy inspector general and assistant inspector general of the Department of Defense, where he was involved in the planning and execution of internal auditing, contract auditing, investigations and inspections. He also served as a professional staff member of the U.S. Senate Appropriations Committee and a budget analyst in the Office of the Department of Defense Comptroller.

Emphasis added. Again, innocent until proven guilty, but I'm not exactly sure what you can argue if the feds have transcripts of you sending 10-year olds to dirty websites.

Here's to hoping that if his guilt is proven, he gets something worse than three years of probation.

Erwin Chemerinsky Fighting Desperately to Keep Institutional Autonomy

Last year, a group of Muslim activists at UC-Irvine verbally disrupted a speech by the Israeli ambassador to the United States. Eleven students were arrested, and recently news has broken that Orange County D.A. Tony Rackauckas would pursue criminal conspiracy charges charges with up to six months in jail.

One hundred faculty members at UC-Irvine have signed a petition asking the D.A. to drop the charges, including UC-Irvine Law Dean Erwin Chemerinsky.

I'm going to reserve judgment on the merits here; I personally think criminal conspiracy charges are a bit excessive, but it's not really my place to comment on it. Instead, I'd like to point out that the administrative faculty, in their defense of these students, is only minimally motivated by the notions of justice and fairness that garner their position sympathy.

When he's not cajoling students to mortgage their future to attend a 4th-tier law school on the premise that it "should be, would be, and probably will be" a 1st-tier school in the future, Chemerinsky is a Constitutional Law scholar, meaning he has something of a conflict here.

On one hand, he has to be intellectually honest. Yesterday at a forum he hosted (see caption in the link), he reiterated that the protesters were clearly in the wrong, that there's no right to do what they did (which, I must add, is not the same as "protesting," which some UC-Irvine students (see picture) can't grasp), and that so-called "heckler's vetos" are an "affront" to free speech.

At the same time, the last thing Dean Chemerinsky wants is the police and the justice department sniffing around his gilded magnolias and mouldering books. This, for example, is from the faculty letter linked above:

As faculty of the University of California, Irvine we are deeply distressed by the decision of the Orange County District Attorney to file criminal charges against the students who disrupted Ambassador Michael Oren’s speech on campus. The students were wrong to prevent a speaker invited to the campus from speaking and being heard. And the Muslim Student Union acted inappropriately in coordinating this and in misrepresenting its involvement to University officials. But the individual students and the Muslim Student Union were disciplined for this conduct by the University, including the MSU being suspended from being a student organization for a quarter. This is sufficient punishment. There is no need for criminal prosecution and criminal sanctions. The use of the criminal justice system will be detrimental to our campus as it inherently will be divisive and risk undoing the healing process which has occurred over the last year.

Read between the lines and you'll see what the real issue is: control. Does anyone seriously believe that a D.A. will be convinced that suspending an organization for a quarter is adequate punishment? Does anyone really buy this garbage about "undoing the healing process," as if UC-Irvine was on the verge of solving Muslim-Jewish differences? While some of the signatories may be interested in "justice," the real issue is the university system maintaining control of defining what "sufficient punishment" is. A threat against the academy's autonomy is a threat against its profits.

And Dean Chemerinsky makes this abundantly clear in his own lengthy editorial to the Orange County Register:

The students' behavior was wrong and deserves punishment...
UCI officials brought disciplinary charges against these students and they have been punished. The university cannot reveal the specific sanctions imposed because of laws concerning privacy of educational records. But all involved acknowledge that punishments were imposed on these students. Also, the Muslim Student Union was punished, including by being suspended from operating on campus for a quarter, for its role in coordinating the disruption and for misrepresenting its involvement to university officials.
...
A criminal record can do serious harm for these students, hindering their ability to get into graduate or professional schools or to gain employment. (emphasis mine)

And there's the rub.

If the university system had its way, there would be no teeth in the criminal justice system regarding 16-23 year olds, precisely because stern criminal justice keeps people out of many professions requiring licensing, like law and medicine.

The university wants to be on its own island while reaping benefits from the public without being subject to the D.A.'s crime-fighting efforts. The costs to society outside their little bubble are to be damned.

Here is a rather cogent response from a local resident who believes the charges should not be dropped:

The Dean contends that the punishment meted out by the university should be sufficient and no criminal charges should have been filed. Since student records in these matters are confidential, we can only speculate on the punishment. I’m certain I am not alone in my assumption that the punishment was less than a slap on the wrist with a stern reprimand. I base this assumption on the fact that the universities, in general, are a safe environment for this type of behavior under the guise of free communication of ideas and philosophies. Blah…blah….blah....
....
As a scholar in constitutional law and free speech, Dean Chemerinsky should be an advocate for a strong but fair punishment of these students and not lobbying for anything less.

Ah, but you see Joseph Hughes of Tustin, strong but fair punishment involves the state. And every time the state shows up on campus, the money tree starts the shrink bit by bit as the veil is lifted, and the good Dean just can't let that happen. If people realize that universities should be treated like other businesses and resource-hogging non-profit organizations, they might start questioning the value of them, of sending our strongest and brightest people to do busy-work for four years and paying the system for a product with limited value.

Why Does the ABA Journal Neuter A Good Story?

So the ABA Journal has this article about the New Hampshire guy who failed the bar 7 times, was mostly unemployed for 20 years, and has a rather pompous attitude about not paying his 30k-turned-140k student loan debt. (See JJD's coverage here.)

The ABA Journal sums up part of his story this way:

In addition to concerns about criminal charges and a lack of candor [the applicant had significant debt issues].

"Concerns about criminal charges?" Oh, pull up a chair or read the actual opinion yourself.

When questioned about his criminal record, the applicant stated that he lacked mens rea for each of his nine convictions. With respect to the reckless conduct conviction based on his “pretending to be a robber,” the applicant explained, “I was on SSI for six months directly following that incident, so that alone would demonstrate no mens rea. But supplemental to that was the fact that it happened on April Fool’s Day. It was a bad joke. I’d say those would be the two reasons.” At a previous interview, the applicant had also discussed the incident. At that time, the applicant told the interviewer that he “was writing a book at the time and wanted to see what the store clerk’s reaction would be when he showed her a knife with a blade between six and seven inches in length.”

When questioned about his six convictions for violating a restraining order, the applicant asserted that he had been “framed.” As evidence of this, he produced a motion to dismiss the restraining order . . . However, the applicant admitted that he had written the motion to dismiss and had the complainant sign it. He was convicted of having violated the terms of the restraining order by sending her copies of motions. At the Committee hearing, he admitted that he had violated the restraining order in several ways:

“I had tried to call her. I had tried to call a friend. I was within 1,000 feet of her house.” However, he asserted, ["]I didn’t have the mens rea because I believe that she – it may sound fantastic, but she had told me the last time that she was being held in her house, locked up, her keys were being – had been taken, her money was taken, her purse, whatever, so in that sense, I lacked a mens rea because I was trying to see what was going on, to see if she was being held there.["]

The record does not reflect any statement by the defendant concerning his 2004 DWI conviction.

Christ, wouldn't you love to hear his explanation for the DWI?

I know we're all worried about student loan amounts, but forget that on this one; even if this guy were independently wealthy, any state that lets him practice law needs to be kicked out of the union.

$140k in debt is nothing. Throw an orange in a law school and you'll hit ten people with as uch or more. Heck, neither is taking 20 years off from the workforce. Ride public transportation and do a survey.

Having six convictions for breaking a restraining order and claiming it's because the women told you she was imprisoned and you weren't bright enough to call the police? Pretending to be a robber on April Fool's Day because you're supposedly writing a book, and then using being on SSI as an excuse for your criminal behavior? Making a hash of mens rea (or thinking that your bar application hearing is a good time to bring it up) while arguing that you're fit to practice law?

That? That's gold right there. Take note, ABA Journal. Let's hope he's admitted in Canada or something so he can do whatever law school birthed his sorry ass proud.