Judge Releases Wrongfully Convicted Man (And Gives Him a Pumpkin Pie)

GEO#1While British Columbia’s Ivan Henry fights to receive compensation for his 29-year wrongful imprisonment, this week a Texas judge released Steven Mark Chaney, a man who served 28-years for the murders of John and Sally Sweek, on the basis of now-discredited “bite-mark” evidence and the almost commonplace charge of prosecutorial misconduct. The latter allegations have yet to face scrutiny in a court room.

In 1987 Dentist Jim Hales was one of two dentists that testified at Chaney’s trial that there was a “1 to a million” chance that someone other than Chaney made the bite marks found on the male victim’s body.

The jury, like other juries before and after this trial, relied on the expert evidence to convict Chaney. It is not uncommon that medical testimony from seemingly qualified doctors is considered to be scientifically infallible because of the elevated positions physicians hold in society. This, despite alibi testimony from nine of Chaney’s friends who said they saw him the day of the slayings and he couldn’t have killed the Sweeks.

Chaney’s attorney and the New York-based Innocence Project asked Judge Dominique Collins to overturn their client’s conviction after prosecutors admitted that bite-mark analysis was unreliable and flawed. Chaney received a pumpkin pie from the judge who wanted him to enjoy the taste after eating bland prison food for so long.

Steven Chaney is among a group of alleged murderers and rapists whose convictions were secured by bite-mark evidence. Since 2000 at least 24 men in the United States have been exonerated of heinous crimes after convictions based on this junk science.

The field of forensic odontology captured public and media attention during the televised trial of serial murderer Ted Bundy in Florida in 1979 when dental experts testified that Bundy’s crooked teeth matched a bite in one young victim’s flesh.

In 2009 the United States Department of Justice released a report titled “Strengthening Forensic Science in the United States: A Path Forward”. The authors criticized the use of bite-mark evidence. Since then the FBI will not rely on it and the American Dental Association will not recognize it as bonafide science.

Nonetheless, as recently as 2013 a judge in New York accepted it as evidence in the trial of Clarence Dean, a registered sex offender accused of killing a woman near Time Square in 2007.

Meanwhile Chris Fabricant, director of litigation with the New York Innocence Project says “Bite mark evidence is the poster child of unreliable forensic science.”

Lawdiva aka Georgialee Lang

Personal Injury Lawyer Jailed for 20 Years For Judicial Bribery and Fraud

BarristerIn an audacious criminal conspiracy Texas personal injury lawyer Marc Garrett Rosenthal was sentenced to 20 years in prison for paying Austin, Texas Judge Abel Limas to hand down court rulings favourable to his clients. He also “bought” witnesses, coaching them in their testimony; fabricated evidence; and manipulated the court system to ensure his cases were heard by his judicial co-conspirator.  This week his appeal of conviction was dismissed. Judge Limas, who was the prosecution’s star witness, had earlier been sentenced to a six-year jail term.

The Appeal Court’s Reasons set out Rosenthal’s misdeeds, several of which involved lawsuits brought by Rosenthal against Union Pacific Railway. In one instance, he acted for the estate of a man who was killed when a train struck his vehicle at a railway crossing.

Rosenthal and his legal assistant Gilbert Benavides persuaded Benavides’ cousin to make a false statement in an effort to force Union Pacific to settle the case. The cousin falsely swore that he was present at the accident scene and witnessed the train hitting the stopped vehicle without sounding its horn or warning of its approach. Attorney Rosenthal used the false testimony to induce the train corporation to pay his client a sum in excess of $1 million dollars. He also paid a kickback of $5,000 to his assistant’s cousin and $4,000 to another of Benavides’ relatives.

In another Union Pacific court action, Rosenthal represented a woman who was severely injured when she fell from the train while attempting to board illegally. The evidence revealed that Rosenthal directed his assistant to bribe the deputy sheriff present at the accident scene to testify that the train’s engineer invited the woman to board the train. The sheriff was also told to say that he overheard the train engineer say that the company “did not care if its train ran over wetbacks.”

In his effort to induce a settlement Rosenthal also advised Union Pacific that in the absence of a settlement he would erect billboards displaying Union Pacific’s alleged comments about illegal Mexican immigrants. Not surprisingly, Union Pacific settled for $575,000. The deputy sheriff was paid $4,000.

Rosenthal expanded his fraudulent scheme when he hooked up with former state legislator, Jim Solis, who began working as associate counsel in Rosenthal’s office. Solis was instructed by Rosenthal to connect with a court clerk to circumvent the regular assignment of judges to cases and obtain Judge Limas for two of Rosenthal’s pending cases. At the time Judge Limas was running for re-election. He received thousands of dollars in donations from Rosenthal and other partners in the firm.

Wiretap evidence at Rosenthal’s trial provided convincing evidence of conspiratorial ex parte conversations between the judge, Rosenthal, and Solis, and revealed payments to Judge Abel for his cooperation. He received a total of $235,000 in bribes during his eight years on the bench.

Rosenthal’s defence team suggested that Jim Solis was a rogue employee who acted without firm approval, a submission that received short shrift. Solis was sentenced to four years in prison.

Rosenthal was also placed on probation at the conclusion of his prison sentence and ordered to pay $13 million dollars in restitution.

Sadly, in the eyes of the public the greed of these men undermines all the good work that lawyers and public officials do in their communities across North America.

“For the love of money is a root of all kinds of evil.” 1 Timothy 6:10

Lawdiva aka Georgialee Lang

A Man Who is His Own Lawyer Has a Fool For a Client

_DSC4851In 1814 British scholar and writer Henry Kett wrote “A man who is his own lawyer has a fool for a client”, a truism if there ever was one, and later adopted by the Supreme Court of the United States who wrote “the adage that a lawyer who represents himself has a fool for a client” is the product of years of experience by seasoned litigators. (Kay v. Ehrler, 499 US 432, 437 (1991)

A classic example of the danger of acting “pro se” or for one’s self is illustrated by Anthony Zappin, a 30-year-old New York lawyer who made the disastrous mistake of acting for himself in his own divorce.

Married to lawyer Claire Comfort in 2013, the couple separated shortly after their son was born. Zappin’s path to self-destruction began after he entered into a consent order dated November 2013 where he agreed to have no contact with his wife and supervised access to his son.

In April 2014 Superior Court Judge Anthony Epstein found that a motion filed by Mr. Zappin was “replete with intemperate and uncivil language…redundant, immaterial, impertinent, or scandalous”. Judge Epstein also criticized his counsel skills, a comment that Zappin, a junior lawyer, took great exception to.

In May 2014 Judge Epstein rendered a further decision throwing out Zappin’s application that he reconsider his prior ruling. By this time, Mr. Zappin’s bad behavior was escalating as evidenced by the handwritten note he attached to his reconsideration motion that read “You’re pathetic! (Judicial Complaint Forthcoming)

On March 3, 2015, Justice Deborah A. Kaplan rendered oral reasons in open court that apparently displeased attorney Zappin. When she concluded she asked Mr. Zappin if there were any other matters for her to consider. He answered:

MR. ZAPPIN: I just want to make it known on the record that I am tired of the lies coming from the court and tainting of the record, knowing full well this is going to go to the Appellate Division. And we’re gonna be in the Appellate Division tomorrow, getting a stay, and then we’ll go back down to D.C. on Friday, and we’re going to open up to Ms. Comfort’s domestic violence petition, and we’re gonna have a hearing down there in from of Judge Blant, because that’s who she lied to, saying that she filed the motion and we’ll have him make a finding of domestic violence. So that’s all I have to say.

THE COURT: Are you finished?

MR. ZAPPIN: Oh, I’m finished, your Honor.

Penning the disciplinary judgment in respect of Anthony Zappin, Justice Matthew F. Cooper wrote:

(Zappin’s) “contemptuous remarks directed towards Justice Kaplan — made to her face in her own courtroom in front of attorneys, litigants and court staff — were not restricted to the statements quoted above. Without reciting the other deeply personal, and frankly outrageous, verbal attacks that plaintiff launched against Justice Kaplan when he was before her on March 3, 2015, they can only be described as words not said in civil discourse, let alone ones that should ever be uttered by an attorney to a judge in the context of a court proceeding.”

But Justice Kaplan was just one of Mr. Zappin’s victims. He also targeted a lawyer ordered by the court to represent his son’s interests, regaling her with scathing comments. Later he established a domain site in her name and on this website wrote missives like:

“Harriet You’re a very sick and greedy woman. I pray for you and hope you seek help. Also, “I intend to keep the public apprised of your misconduct and disturbing behavior.”

The child’s lawyer retained a court ordered psychiatrist to provide expert testimony, a task that was met with Mr. Zappin’s pernicious complaint to the psychiatrist’s professional organization, and although quickly dismissed, caused considerable anxiety and harm to the innocent expert.

Most damaging, however, was Justice Cooper’s conclusion that Mr. Zappin’s “ill-advised behaviour seriously calls into question his fitness to practice law” and indicates a “personality that makes (him) incapable of properly parenting the parties’ child”.

Zappin was fined $10,000. The trial to resolve the issues takes place in November 2015. After all this, one can only hope Zappin finally hires a lawyer.

Lawdiva aka Georgialee Lang

$1,000 an Hour Lawyer Disbarred for Appealing an Arbitration Award

BarristerRobert Bennett was a high-flying attorney in Texas with a big reputation as a go-to litigator. He included among his clients uber-wealthy financier R. Allen Stanford, sentenced to 110 years in prison for a $7 billion dollar Ponzi scheme arising from the fictional Stanford International Bank in Antigua and wrongfully convicted death row inmate Anthony Graves, exonerated in the murders of six people and released from prison.

But the case that has ended his career relates to client Gary Land who retained Mr. Bennett in 2011 to handle a breach of contract case and a potential civil rights violation action. The latter case had been turned down by other lawyers as it involved an improbable allegation that Mr. Land was being secretly surveilled by unnamed persons, possibly federal agents.

Bennett asked for and received a $50,000 retainer. Bennett was instructed by his client to forward his bills for legal services to him by email as he would be engaged in extensive travel. Bennett’s first bill arrived by email but the rest were mailed to Mr. Land’s parents’ home. When Mr. Land finally received the posted bills he learned that Mr. Bennett had already billed for $75,000 worth of legal services. Land fired Mr. Bennett and challenged the legal fees.

When Mr. Bennett agreed to act for Mr. Land he asked him to sign an agreement that any fee dispute would be subject to binding arbitration by the Houston Bar Association Fee Dispute Committee. Mr. Land had agreed and an arbitration was scheduled.

Mr. Land’s position that he had been charged excessive fees for very limited legal services was upheld by the arbitrators whose award included a provision that Mr. Bennett would not receive the outstanding amount of $25,000 and that $27,500 in legal fees would be reimbursed to Mr. Land by Mr. Bennett. The award was binding, conclusive and not appealable in accordance with the agreement between Mr. Bennett and his client.

Rather than paying the award, Mr. Bennett filed an application to the Committee for a Modification and Clarification of the award. His application was denied. Mr. Land then applied to the district court who turned the award into a court order. Bennett still refused to pay and appealed the court’s order.

That’s when the Texas State Bar commenced disciplinary proceedings against Mr. Bennett seeking a two-year suspension from the practice of law.

In a rare three-day hearing in district court Judge Carmen Kelsey upheld the Bar Association’s findings of professional misconduct based on Mr. Bennett’s failure to pay the arbitration award and his pursuit of several appeals that were barred by agreement between the parties. However, Judge Kelsey ignored the Bar Association’s submission that Bennett be suspended. She ordered him disbarred. In Texas a lawyer who has been disbarred cannot apply for reinstatement until five years have passed.

But this case is not over. Last week Mr. Bennett’s appeal from the order of the district court was argued before three judges of the Court of Appeal. Most impressive were the one thousand amicus briefs filed by local lawyers in order to show solidarity with Mr. Bennett’s position that disbarment is out of proportion to the alleged offences.

I still can’t figure out why such a notable and successful lawyer would refuse to reimburse his client a mere $27,500, only to engage in protracted, expensive, high-profile disciplinary and court proceedings?

The appeal is under reserve.

Lawdiva aka Georgialee Lang

Divorce Lawyer Clandestinely Hypnotizes Female Clients

_DSC4179 - Version 2In a bizarre case out of Ohio, attorney Michael W. Fine, age 58, has been charged with numerous sexual offences arising from private appointments with a number of female clients, either in his office or in counsel rooms at the local courthouse.

The charges include rape, engaging in a pattern of corrupt activity, attempted rape, 15 counts of kidnapping, three counts of attempted kidnapping and two counts each of attempted sexual battery, attempted gross sexual imposition, gross sexual imposition and illegal use of a minor in nudity-oriented material.

Mr. Fine’s abusive activities were fostered by his ability to hypnotize his clients and take advantage of them while they were under hypnosis. The first client who blew the whistle on Mr. Fine recounted an uncomfortable feeling every time she left her lawyer’s office, with her disheveled clothing and a feeling she had lost track of time.

She reported the situation to the local police who told her not to return to his office, but she had a better idea. She continued to see her lawyer and secretly recorded what occurred. Later she played the recording and in shock and embarrassment returned to the police where they listened with mouths agape as they heard Michael Fine put her into a trance and then make outrageous sexual suggestions and physical overtures to her.

They asked Jane Doe #1 if she was prepared to wear a wire and video recorder which would be monitored by the police. The plan was that if and when Mr. Fine began his reprehensible acts they would burst into his office and arrest him. And that’s what they did.

The local bar association immediately suspended Mr. Fine from the practice of law and with the accompanying publicity 30 more women presented themselves as victims of his sex crimes. Shortly thereafter, Mr. Fine gave up his license to practice law.

The current indictments against Mr. Fine involves six women only, as many of his other victims are unable to provide sufficient evidence to satisfy the criminal burden of proof. However, police say they are continuing their investigation.

Not surprisingly, at least one victim has filed a civil suit against Michael Fine and the law firm that employed him. Her case is particularly alarming as she retained Mr. Fine to bring a civil suit for sexual abuse she endured as a child. She reportedly became close to him and considered him a second father.

Fine’s tactics included schooling his clients on relaxation and “mindfulness” techniques, a front for hypnotism and his own selfish sexual gratification.

He has plead not guilty to all charges.

Lawdiva aka Georgialee Lang

Liar, Liar, Pants on Fire: Perjury in Family Court

GEO#1People tell lies, so-called “white” lies, they tell half-truths, they prevaricate, fabricate, distort, and tell “whoppers”, and they can, unless they are in a court of law or a government hearing where they are “sworn to tell the truth, the whole truth and nothing but the truth.

Yet nowhere is the truth more elusive than in a family law trial and the recent case of Kneller v. Underwood 2015 BCSC 1410 is a prime example of perjury under oath.

The issue was whether or not 36-year-old Twyla Kneller and Jim Greenwood of Cranbrook, B.C. lived together in a marriage-like relationship for nine years, as Twyla testified, or whether they simply were “friends with benefits” as he maintained.

If they were in a spousal relationship, Ms. Kneller would be entitled to share in his property in light of the 2013 law that gave common law spouses the same property rights as married spouses.

Ms. Kneller described a traditional relationship where Mr. Greenwood worked and paid the bills, while she maintained the home with its wood stove, doing the grocery shopping, cooking, baking, canning, cleaning, laundry, and gardening. The parties initially resided in a trailer on bare land and later in a renovated home on acreage, all owned by Mr. Greenwood.

Mr. Greenwood’s parents and grandparents lived on adjacent properties and Twyla became close to his mother.

Interestingly, despite his family’s obvious knowledge of their son’s living arrangements, they were not called to testify, although many other witnesses paraded through the courtroom.

During the nine-year relationship the parties separated on one occasion for three and a half months, not surprisingly, considering Ms. Kneller’s evidence that Mr. Greenwood’s physical
assaults landed her in hospital twice. She testified to regular punching, slapping, kicking, and other abuse. She said that initially Jim would apologize for this behaviour but after a while he didn’t bother. She stayed because she loved him, an oh-so-familiar sentiment in cases of domestic violence.

When it was time for Jim Greenwood to testify his evidence could not have been more different than Ms. Kneller’s.

He swore they never lived together, although she spent some nights with him. He said she lived in Cranbrook with her mother. He apparently forgot that in an earlier affidavit he said “they lived together off and on”. He testified their finances were completely separate and they each filed “single” status tax returns, a misstatement he was forced to correct when his 2010 tax return showed he claimed tax deductions in respect of his “common law spouse”.

He denied he gave her a “promise” ring and was cornered when it came to light he had added her to his medical and dental insurance as a common law spouse. He recounted a denigrating anecdote to the court where he felt it necessary to “take her home”. When it was apparent the “home” he referred to was his, and not Twyla’s Cranbrook home, he squirmed and became agitated and nervous.

When he abruptly asked Ms. Kneller to leave, he said she had almost nothing to pack, despite photographs showing a U-Haul with furniture and personal chattels piled in. He had forgotten that in an earlier affidavit he swore she took all of the furniture, although he paid for it all. He also couldn’t keep the date of their separation straight: Was it August 2013, as he first suggested, or October 2013?

Of course, who to believe was the central issue in the trial, a task that was not daunting for the trial judge. He found that Ms. Kneller was one of the “most genuine, down-to-earth, credible and engaging witnesses” he had ever encountered.

As for Jim Greenwood the court said:

“The respondent’s evidence, in particular, was disingenuous and lacking in credibility. It consisted almost entirely of vague, unsubstantiated and unsupported assertions. His evidence at trial contradicted his earlier affidavit evidence in many significant respects. The best he could muster when faced with the conflicts in his sworn evidence was to blame the drafter of the affidavits, to say he wasn’t a very good reader and to state, “that is what you get when you don’t look at the things you sign.”

The trial judge also declared that Mr. Greenwood’s blanket denial the parties ever lived together, and his testimony that he never physically abused his spouse were “devoid of truth”.

Finally, the trial judge said he didn’t believe or accept anything Jim Greenwood had to say that contradicted the evidence of his common-law spouse and her witnesses.

“In my view, the respondent would be well served by a recalibration of his moral compass.”

It’s called “perjury”, an indictable criminal offence with a possible 14-year jail term attached to it, and yet, liars are not prosecuted in Canada. Oh yes, Air India terrorist, Inderjit Singh Reyat’s acquittal in 2003 on murder charges prompted the Crown to charge him with perjury, securing a conviction and a nine-year prison term, but that is the exception, not the rule.

Not so in the United States where Roger Clemens, Barry Bonds, Martha Stewart and others faced charges, not for steroid use or securities fraud, but for lying.

Canada’s refusal to deliver consequences to parties who blatantly lie in court needs to be addressed. Mr. Greenwood was a poor liar but there are many cases where Mr. or Ms. Charming fool the court and justice does not prevail. Perjury is a serious issue, particularly in our family courts and steps must be taken to punish liars who make a mockery of their oath to tell the truth.

Lawdiva aka Georgialee Lang