What’s really going on at the bar

By Mark Geragos

E938470-Geragos_MarkMark Geragos is a criminal defense lawyer with Geragos & Geragos.

Could anyone imagine that faced with the potential opportunity of generating about $50 million of new funding for legal services and other needs of our justice system, the California State Bar Board of Trustees, claiming the support of the staff of the Supreme Court of California, would not only kill that opportunity, but do so by defaming the immediate past president and first Latino president of the State Bar and its executive director?

I regret to inform the California legal community this is what happened.

All this was recently brought to light during the high-profile firing without cause of the State Bar executive director Sen. Joseph Dunn (Ret.), whom I represent in litigation against the State Bar.

It all began with the now widely reported events of the Dunn firing: an initial “whistleblower” complaint against Dunn by Chief Trial Counsel Jayne Kim, subsequent “whistleblower” complaints against Kim, and the engagement by the board of the law firm of Munger, Tolles and Olson to evaluate the Kim complaint. Though the Munger Tolles report cost the State Bar over $300,000, it found the financial responsibility for the subject of the complaint was at most less than $10,000 (although even this amount is still in dispute). But notwithstanding the Munger Tolles report, the motion and action at the board meeting on Nov. 7, was to fire Dunn without cause.

It is the nonfinancial portion of the Munger Tolles report that comes to astonishing findings. In the report, Dunn and immediate past president Luis Rodriguez are accused of misleading and blatantly lying to the board about the prospect of selling the San Francisco building which is the headquarters of the State Bar for a substantial profit.

Why didn’t everyone work together instead to clarify any misunderstandings to achieve the goal of selling the San Francisco building to capture its extraordinary value and use the $50 million for the justice system?

During its meetings, Munger Tolles had told the board that its report was of the highest confidentiality and if leaked, could result in the harshest sanctions to anyone who leaked it. But leaked it was, before any person criticized by the report was given any notice of what was found or an opportunity to respond.

What really happened?

Dunn’s accomplishments, during his highly praised previous three years as executive director of the bar, had included selling State Bar property in Los Angeles and using the proceeds of the sale to purchase and relocate the Los Angeles office of the bar to a building in downtown Los Angeles. The new building leases space on the ground floor to a supermarket, which rent is helping to fund important legal services.

Following its profitable relocation of the State Bar’s offices in Los Angeles, Dunn learned important information about the State Bar’s headquarters in San Francisco. The building the bar owned on Howard Street, an area South of Market, had become one of the hottest real estate markets in the nation due to growing high tech facility demand. The current value of the building, which had been bought years ago for $22 million, was about $122 million in 2014 based on an actual offer from an interested buyer. Dunn immediately realized it made no sense from a policy standpoint for the State Bar to just sit on that enormous capital, especially considering all of the current needs of the justice system. He therefore, with the approval of the board’s executive committee, sought potential buyers for the building at its market price and identified a building in Sacramento, among other locations, to serve as the State Bar headquarters. The process which Dunn set in place, if carried to completion, could have produced a potential net excess of funds of about $50 million for the State Bar, after deducting the costs of the new building and moving costs. These funds could have been used for legal services, to lower bar dues, and/or for other general needs of the justice system. The move to Sacramento also made sense in terms of moving the State Bar’s headquarters closer to the Legislature, which governs so much of the State Bar’s fate.

Dunn worked closely on this plan with then State Bar president Luis J. Rodriguez, who became a supporter of the sale and move. Dunn and Rodriguez kept the board’s executive committee, who was the relevant group at that time, fully briefed and involved in the process. Dunn and Rodriguez also briefed the Chief Justice on their plan to sell the San Francisco building and relocate.

So what does this have to do with the Munger Tolles report? In their reports to the State Bar executive committee, Dunn and Rodriguez were asked about their conversations with the Chief Justice. Specifically, a question was raised whether Dunn and Rodriguez had accurately reported their conversations with the Chief Justice. To no surprise, given the multiple conversations among different people, there was confusion about exactly what was said at different times. The Munger Tolles report chose to conclude that Rodriguez lied to, and both Dunn and Rodriguez misled, the executive committee about their conversations with the Chief Justice.

What possible motives would Dunn and Rodriguez have to do so? There is no allegation and never has been that they had any personal interest in the sale of the building or move to Sacramento. Their only interest was in working to maximize State Bar resources to provide an additional $50 million in funds for the many needs of the justice system.

Stunningly, Dunn and Rodriguez did not know of the allegations of the Munger Tolles report until the report was publicly leaked on Wednesday (presumably by the State Bar) and they received calls about the allegations from the reporters to whom it was illegally leaked. To this day, they have not seen the report. The only thing they know about the report is what they have been told by the reporters. Dunn and Rodriguez categorically deny misleading or lying to the executive committee or any part of the board structure about their conversations with the Chief Justice.

All this might be explained by the Rashomon effect. But the broader and more important question for the California justice system is why this became part of a “who said what to whom” internal investigation. Why didn’t everyone work together instead to clarify any misunderstandings to achieve the goal of selling the San Francisco building to capture its extraordinary value and use the $50 million for the justice system?

The reason is that senior executives at the bar claiming support from staff at the Supreme Court do not want the State Bar’s headquarters to move to Sacramento or anywhere else for that matter. These senior executives are comfortable where they are in San Francisco and they would have the justice system pay the potential $50 million price tag in order to make no changes. They decided to block the move by providing questionable information during the Munger Tolles investigation to tar and defame Dunn and Rodriguez, the two people most active in supporting a move. Of course there were other reasons for the outcome of the investigation but this was surely a significant one. Not only did this unfairly harm the highly praised executive director of the bar, but this also caused gratuitous harm to Rodriguez, about whom no known complaint was ever even filed.

After a new State Bar president came into office in September 2014, he refused to act and sat on the documents that would have moved forward the transactions, essentially killing the deal.

So there you have it: the sale of the San Francisco building blocked; potentially $50 million in funds lost for the justice system; and a distinguished executive director and the first Latino president of the State Bar defamed. Not a pretty picture of California’s legal institutions, especially in the midst of a constant cry for extra resources for the judicial branch.

Mark Geragos is a criminal defense lawyer with Geragos & Geragos.

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Letter of the week: Judge denied justice in Willard case

By Mark Geragos

Danielle Willard’s life was taken by the lawless act of Shaun Cowley. And her family’s quest to seek justice for their daughter was taken by the lawless act of Judge Dever. Both acts are unspeakably tragic, and the court’s decision – one plainly at odds with the directives given by Utah’s highest court – only compounds the tragedy, re-victimizing a family whose only comfort and solace for the loss of their young daughter was to come through the judicial process.

The court’s ruling undermines the most fundamental principle upon which our criminal justice system is built — the right to have a jury determine a defendant’s guilt. In departing from the standards set forth repeatedly and consistently by the Utah Supreme Court, Judge Dever usurped that right and arrogated to himself the role of judge and jury. He has deprived the Willard family — by judicial fiat instead of jury verdict — the ability to seek justice for their daughter.

One might think that a case involving the death of a 21-year-old girl — whether ultimately criminal or not — should at a minimum merit some substantive discussion before dismissal. Alas, the court’s ruling is largely bereft of analysis and instead grants deference to the defense in unprecedented fashion. There is no doubt — absolutely none — that a criminal defendant accused of murdering a cop would have been bound over to answer at a trial on substantially less evidence than what was provided by the state in this case. It is a perilous path we travel where our police are not held accountable in the same fashion as our criminal defendants. The Roman poet Juvenal famously asked, “Quis custodiet ipsos custodes [who watches the watchmen]?” The answer in Utah, one might reasonably conclude after today’s ruling, is no one.

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Trayvon Was Black. It Matters.

by Mark Geragos

It’s one simple word: race. Prosecutors, used to demonizing young black males as violent predators of the night, weren’t ready to fight for Trayvon Martin. By Michael Jackson’s defense lawyer, Mark Geragos.

Did the George Zimmerman trial involve racist attitudes? Of course it did. Did the predominantly white jury reach the right verdict? Of course it did. Is the criminal justice system a racist institution? Of course it is. Do young black males disproportionately suffer the brunt of this criminal justice system? Of course they do. Did the media and politicians inflame the situation for their own purposes? Of course they did. Is this a conundrum easily resolved or reconciled? Of course it’s not.

Let’s start with whether this trial involved racist attitudes. That’s easy. There has already been a judicial determination that the prosecution was racist. Judge Nelson made a finding that the prosecution was exercising peremptory challenges in a race-based fashion. The race and cognizable class they were targeting? White women. After finding that the Florida prosecutors were targeting white women, her Honor used her discretion, based on a U.S Supreme Court precedent called Batson, to reseat two of the white women that the prosecutors kicked off the panel. Those two women later became jurors who voted to find George Zimmerman not guilty.

Faced with the prospect of trying this case to the only demographic that mattered—six women, five of whom were white—the prosecutors instead decided to play for the cameras. True homicide prosecutors will admit in private (and some brave souls will admit to the public) that the prosecutors in the Zimmerman case were appalling. Their histrionics were more appropriate for a bad episode of Law & Order. Even though the Zimmerman prosecutors had the advantage of pretrial depositions of witnesses, something absent in criminal cases in most jurisdictions other than Florida, they acted unaware of what witnesses were going to testify to on the stand. They put on witnesses who destroyed any chance of a conviction and sat idly by without obvious objection as the defense co-opted witness after witness.

The media, instead of wondering what case the prosecution was trying, fixated on complete nonsense like the defense lawyer’s lame knock-knock joke in his opening statement.

The defense flawlessly made the prosecution witnesses their very own character witnesses for Zimmerman. The media, instead of wondering what case the prosecution was trying, fixated on complete nonsense like the defense lawyer’s lame knock-knock joke in his opening statement. Most breathlessly speculated that the defense would never recover. Supposed legal pundits, who themselves have never prosecuted or defended a homicide case in their career, daily gave high marks to the prosecution for their made-for-TV theatrics. As long as there is an Esquire after the name, they could opine in front of a camera about how great the prosecution was doing.

It’s like going to a dermatologist for a second opinion when you are told you have a brain tumor. And what does the public know? Then, lo and behold, the jury comes back with a not-guilty verdict, which was the only correct verdict based on the evidence that was presented.

These prosecutors were scared from the beginning. They were scared to put the case in front of a grand jury. They were scared to turn over evidence to the defense. Zimmerman’s lawyer filed not one but six separate motions seeking sanctions against the prosecution for playing hide the ball. The judge even set a hearing post-trial on sanctions against the prosecution, which the media treated as just a normal part of the process. Instead of questioning why the prosecutors were repeatedly hiding evidence, the media just continued their cheerleading for the prosecution. The prosecutors were even afraid to put Trayvon Martin’s father on the witness stand. They left that chore for the defense.

The collective response from the hallelujah chorus of legal dermatologists? The defense had made a huge mistake calling Tracy Martin to the stand, instead of chastising the prosecution for playing hide the ball once again. In their penultimate act of fear, prosecutors sought a lesser charge than murder, basically running away from their case in its entirety and abandoning George Zimmerman as harboring ill will and malice. Instead, they jettisoned their malicious racist theory in favor of one that argued Zimmerman was grossly negligent. And in their final act of cowardice, the state attorney, Angela Corey, waited until the jury was out deliberating to fire her IT employee whistleblower who revealed her office’s prosecutorial shenanigans.

So why this inversion of the normal criminal roles of the prosecution and defense? It lies in one simple word. Race. Prosecutors are not used to calling the Trayvon Martins of the world, or any other black youth, a “child,” or characterizing their comings and goings to the store as innocently buying Skittles and watermelon tea. They are used to demonizing young black males as violent predators of the night. Historically, prosecutors in Florida thought nothing of seeking the death penalty for 15- and 16-year-old black “children” when they were prosecuting them. It took the U.S. Supreme Court to slow that process down, so that the 17-year-old “children” had to become 18 year-old “adults” before they could be sent to “Old Sparky,” the Florida death chamber.

Is it any surprise that years of this prosecutorial conditioning now leaves the prosecutors sounding almost schizophrenic and plastic when they describe a 17-year-old black male as a “child”? Go into any criminal courtroom in America in any metropolitan city and see the customers the prosecution is serving up. They are predominately “children” of color. Politicians and prosecutors use race as a strategy as part of their everyday currency. Is it any surprise that the public follows along? Think Willie Horton. Think President Obama talking about Trayvon looking like his son, if he had a son. Think George Zimmerman seeing a young black male with a hoodie who must be a punk who gets away with it. Think five or six white women who must have been wondering to themselves who was the prosecution and who was the defense.

Mark Geragos, head of Geragos & Geragos, is one of the most recognized criminal defense attorneys in America, whose high-profile clients have included Michael Jackson, Susan McDougal, Scott Peterson, Chris Brown, Winona Ryder, Gary Condit, and Mike Tyson. He has served as a regular legal analyst on CNN, Fox, and is the author of Mistrial: An Inside Look at How the Criminal Justice System Works … and Sometimes Doesn’t (2103) with Pat Harris.

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International Criminal Justice

Nick Koumjian

Since the establishment of the International Criminal Tribunal for the Former Yugoslavia in 1993, the rapid and accelerating development of international criminal law has changed the world we live in. Crimes of war and atrocities against civilian populations have been a tragic and persistent scourge on humanity and are not likely to disappear anytime soon. But for perpetrators of these offenses, the calculations have changed. Now dictators, warlords, and generals know that their actions will be scrutinized by prosecutors and the possibility exists that those who violate the laws of war and commit crimes against humanity will one day face justice.

Definitely, this is a good thing. The world is a better place when the law can bring justice to victims who in earlier times could not have hoped to see the mighty who inflicted their suffering face judgment in a court of law. I will never forget the many victims I have seen come into international tribunals and face former high-ranking politicians, generals and even a former President. I will always remember Alusine Conteh, a man who had his left hand amputated by rebels in Sierra Leone and when the perpetrators then asked to have his 3 year-old son brought forward, instead volunteered to have his right hand amputated to protect his son; and Mustafa Mansaray, another man with both hands amputated and who was in a wheelchair. He sat across from a former President and who told the court that the reason he had come to testify was that this man, Charles Taylor, had threatened his country would taste the “bitterness of war.” Mr. Mansaray raised the stumps on his arms and told the court “This is my bitterness.”

While the world is a better place for holding individuals responsible for these crimes, it is not a simpler place. Just this year we witnessed the rapid reaction of the international community to threats to civilian populations and mass crimes in Libya. In addition to military intervention to use air power to protect civilians, the United Nations Security Council voted to refer the situation in Libya to the International Criminal Court (the “ICC”). The referral put Gaddafi and all those involved in the conflict on both sides on notice that actions targeting civilians could lead to criminal sanctions. While the referral puts added pressure on the Libyan regime and hopefully will discourage targeting of civilians, it complicates any negotiations to end the conflict by having Gaddafi step down and leave the country. The issue of when, if ever, the fight against impunity for crimes against humanity can be compromised in the interests of ending conflict and the immediate protection of vulnerable communities is one of many issues with which the nascent field of international criminal justice will have to grapple in coming years. The field is in its infancy and much remains to be developed as international criminal justice continues to develop and mature an accelerating pace.

Libya has not signed the Rome Statute creating the ICC and the court would not have had jurisdiction over these crimes without the Security Council referral. While the United States is also not a signatory, the US has cooperated with the court and US policy clearly has been moving to recognition of the important role the court can play in international affairs and protecting the most vulnerable. In 2005 during the Bush administration, the US abstained from a vote referring the situation in the Darfur region of Sudan (which the US congress had recognized as genocide) to the ICC. The United States has also played a key role in supporting other modes of international criminal justice, including the ad hoc UN tribunals for Yugoslavia and Rwanda, the Special Court for Sierra Leone and the Serious Crimes Panels in East Timor.

The development of international criminal law has complimented and accelerated development of international and domestic law efforts to hold not only individuals but also corporations and states responsible for human rights violations. The International Court of Justice recognized that the 1995 killing of close to 8,000 men and boys in Srebrenica constituted genocide and that Serbia had violated its obligations under the Genocide convention by failing to prevent the crime and failing to cooperate in efforts to punish its perpetrators. However, the court failed to order any compensation or remedies for Serbia’s failure to fulfill its obligations. In the United States, courts have recognized the rights of plaintiffs to file claims in federal court for violations of international law committed abroad under the Alien Tort Claims Act. Increasingly, courts are extending jurisdiction to find remedies for serious violations of fundamental rights committed outside a state’s borders, providing remedies for those who otherwise would have no hope for justice. This is a dynamic and critical area of the law that will continue to evolve in the coming years. Participants in the field have the privilege to contribute to development of an area of law that can make a real difference in preventing some of the horrendous crimes that would otherwise be inflicted on many thousands, perhaps millions of innocent civilians and to bring a measure of justice to those who have already suffered.

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Los Angeles Dodgers

-Pat Harris

Major League Baseball’s decision to reject the proposed $3 billion deal between the Dodgers and Fox TV may have some in L.A. rejoicing that the end of the McCourt’s reign as Dodger owners is finally come to an end. Not so fast – the celebration may very well be premature. Baseball has long been run under the premise that the Commissioner can essentially do whatever he wants under the premise of “the best interests of the game.” And so far, the Commissioner is pretty much undefeated.

But the McCourts/Dodger ownership issue presents a very different type of deal situation. The McCourts bought the Dodgers under a heavily leveraged deal, but one that MLB signed off on. They negotiated a TV contract with FOX that appears to have been done in good faith and for a reasonably fair price. Now MLB steps in and says we don’t trust you with the money, even though we let you buy the franchise, and we are not going to let you broker a TV deal that might benefit you personally even if it also benefits the team. The inevitable lawsuit has almost certainly already been drawn up by McCourt’s lawyers. There is no way to know how this one is going to end but one safe prediction is that it will drag out even longer than the baseball playoffs.

What is most confusing about this whole affair is why it ever came to this point. When the McCourts first began to contemplate divorce, surely they went and consulted with their respective divorce attorneys before blowing this thing up. Why in God’s name would they not have just realized that before they ever went public or ever set foot in a courtroom they needed to get their financial ducks in a row. Work out the Fox deal first, then announce the split. A cynic would say that the family law attorneys were more than happy to jump into court and start the billing cycle. But as a lawyer, I would hope that at some point some lawyer advised them just to separate, travel for awhile, keep their mouths shut and let the Dodgers get on firm ground or they were going to lose everything.

Sadly, that’s not always the way family law works. Over an over we see a slash and burn strategy that is mainly designed to slash and burn the client’s bank accounts. It is a strategy that plays into the clients anger but is it really in their best interests?

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