Watts Law Firm
Sunday, July 08, 2007
Another fabrication by Cornyn to promote his racist and Nazi Wall agenda
Saturday, August 05, 2006
New Sentencing Trial for Texas Death Row Inmate
The Odessa American has a story on the new sentencing trial previously ordered for Michael Dean Gonzales. The U.S. Fifth Circuit Court of Appeals last week denied his habeas petition which raised claims that prosecutors failed to turn over exculpatory evidence and ineffective assistance of counsel at his capital murder trial.
The Odessa American story is here.
Not at issue before the Fifth Circuit was a federal district court's earlier order that Gonzales receive a new sentencing trial because of racist testimony by the state's expert witness.
The pertinent paragraph is on page 7 of the circuit court's decision:
Gonzales filed a supplemental petition in August, 2000, asserting that the State’s psychological expert witness testified, unconstitutionally, that race is an indicator of future dangerousness. The State conceded that this claim is valid and entitled Gonzales to a new sentencing hearing. The district court so ordered, and neither party has appealed its ruling on this point.
This is from the Odessa American story; the person quoted is Ector County District Attorney Bobby Bland (presumably no relation to the legendary soul singer Bobby Blue Bland):
Bland said that it’s his understanding that the penalty phase of the trial was overturned because of a faulty witness in the case handled by a previous district attorney.
“My understanding was that we had an expert witness who’d been called in to witness on other cases, and his testimony created some problems in the cases, because there were comments on race,” Bland said. “In our case, I don’t think he testified that way.”
On June 11, 2000, then-State Attorney General John Cornyn announced six convicted killers, including Gonzales, would likely have their death sentences overturned. The U.S. Supreme Court found that psychologist Walter Qijano was racially biased in his testimony in the case of Victor Saldano. Qijano had also testified as an expert witness in Gonzales’ case.
Actually, that understates Cornyn's role. The state's expert psychologist, Quijano, had testified in six separate cases that being Hispanic was an aggravating factor, and for that reason the Hispanic men would represent a future danger and that the death penalty was the appropriate punishment. In a rare move, the Attorney General announced that he would not defend such blatantly racist testimony.
It was a courageous stand that drew opposition from some Texas district attorneys. Unfortunately, as the junior U.S. Senator, Cornyn has stood with a handful of Republicans in the House and Senate over the past year who have repeatedly attempted to severely limit federal court review of state death penalty convictions. Yesterday, the Ohio Death Penalty Information blog had this post noting Cornyn's latest attempt to put such language in a bill designed for judicial security. LINK
Saturday, August 05, 2006 at 06:21 PM in Fifth Circuit, Race, Specific Case | Permalink | Comments (0)
Labels: Prejudice, race, SCOTUS, Texas Fair Defense Act
// posted by dannoynted1 @ 6:48 PM 0 comments links to this post
Cornyn on punking the SCOTUS to get this SCOTUS case back to Texas to punk the justice system and the US Constitution
Wednesday, September 27, 2006
Super-Bad Bush Nominees Get a Needless Day in Court
That's the title of Cragg Hines' column in today's Houston Chronicle. Hines, the paper's Washington, D.C. based columnist, reports on the Senate Judiciary Committee hearings on two federal court nominees, including one nominated for the U.S. Fifth Circuit Court of Appeals. LINK
As afternoon moved toward evening, it became clear that one purpose of the hearing was to allow Republican members to beat up on the ABA for daring to buck even a couple of Bush nominees. This was a preoccupation of Sen. John Cornyn, R-Texas, in his loaded softballs.
Unfortunately, one of the nominees is for a vacancy on the 5th U.S. Circuit Court of Appeals, which hears cases from Texas, Louisiana and Mississippi. That's the federal appeals circuit, according to the NAACP Legal Defense and Educational Fund, with the highest percentage of minority residents.
So, naturally, Bush has nominated a lawyer with a career-long antipathy to such basic civil rights touchstones as the Voting Rights Act and single-member districts.
It's sort of a sick joke, but it's also perversely real. Bush wants this guy to have a lifetime seat on a court that remains an important gatekeeper in the world of civil rights litigation.
The superbly unsuited nominee is Michael B. Wallace, a politically well-connected Jackson, Miss., attorney.
He might be the only appeals circuit nominee who has received a unanimous "not qualified" rating from the ABA's standing committee on the federal judiciary. No one can recall another.
After two separate ABA inquiries into Wallace's nomination earlier this year, the bar committee came up with the same conclusion: Wallace, while of the "highest professional competence," lacks a judicial temperament and a commitment to equal justice.
Wallace's rating is hard to come by. Of the 90 Bush judicial nominations that the ABA committee has rated in the current, 109th Congress, only Wallace received a unanimous "not qualified" rating. Twice — after he was nominated in February, and then when, because of procedural rules, he was nominated again earlier this month.
With the changing committee membership over the year, Leahy pointed out, 21 different members of the ABA panel have rated Wallace. "None found him to be qualified," Leahy said.
The ABA committee is not, as some Republicans seek to paint it, an ideologically driven panel. Almost half of Bush's nominees in this term have received a unanimous rating of "well qualified."
Only three other nominees have been rated as "not qualified" by what the committee calls a "substantial majority" (with a minority rating them qualified).
Wednesday, September 27, 2006 at 09:50 AM in ABA, Fifth Circuit | Permalink | Comments (0) | TrackBack (0)
Labels: consent, lies, Prejudice, SCOTUS, Texas Fair Defense Act, warrant
// posted by dannoynted1 @ 6:40 PM 0 comments links to this post
Tuesday, July 03, 2007
Mikal Watts in San Antono
// posted by dannoynted1 @ 9:57 AM 0 comments links to this post
Sunday, May 27, 2007
money buys for giving ?/////////
One day in Iraq
The son of a friend is a soldier stationed in Iraq. Recently, he and his buddy were on patrol. A sniper shot his buddy in the head. He was unharmed. A young man is dead and his friend will most likely live with the memory of that horrible scene the rest of his life.
We hear on the news of "Five U.S. asualties in Iraq today" and we think, "That's terrible." But when you know a young person (or his family) who will never come home or by the experience be traumatized forever, you will feel their loss and anguish. How many more of our young people will be killed in this senseless morass?
My grandson is stationed on the USS John Stennis in the Persian Gulf. Every day I'm thankful he is not patrolling the streets of Iraq.
Molly Mulle
(Rockport)
Bomb-scare change
I must express my concern regarding CCISD's new policy of "locking down" the students rather than "evacuating" them during possible bomb threats. What prompted the change in this policy?
My children brought home letters from Ray High School on May 15 regarding a possible bomb threat. I have real issues with the district's new policy allowing the schools to "lock down" students during an investigation to determine whether a bomb threat is valid. Previous policy to evacuate students while the situation was investigated and return students to classrooms when the situation was cleared was a more logical way to protect our students and staff. Granted, the majority of these "threats" turn out to be pranks or just threats. Security is an issue everywhere now and a real bomb would not be a surprise anymore.
If the district is concerned about funding because of valuable time lost due to this criminal behavior, then time should be made up just as time lost for inclement weather is made up.
Individuals cannot "joke" about bombs in airports, etc., without severe penalty. It should be the same in schools. What happened to "zero" tolerance?
Pat Dunegan
Parade in the dark
The "Illuminated" Buccaneer Night Parade at the stadium was anything but illuminated. I was greatly disappointed, and all the people I have spoken to concerning the parade feel the same.
In the beginning, when there was still some light, it was all right, but as night came and the lights were turned off (we knew the lights were going to be off), it was pitch black. I know that a lot of money and time are spent by everyone involved, especially the high-school bands, and for the public not to be able to see their performance is a big letdown. Some "lights" were supposed to have been given to the people sitting in the aisles, but nobody in my section got any lights. Many elderly people had trouble walking up the steps to their seats. About the only floats with plenty of lights were the floats from out of town. The Corpus Christi floats did not compare to them.
I am hoping that next year's parade will be better planned. I love a parade. The band's music is good therapy for our tired bodies. Let us have a real "illuminated" night parade so that we can feel the enthusiasm of the participants. It brings back memories of when I participated with the Buccaneer Band and later with the Veteran's Band of Corpus Christi.
Luis R. Corona Sr.
Good public servant
Melody Cooper is one of the most dedicated members on the City Council that we know. She is honest and very dependable, always ready to go the extra mile to help. Why doesn't the Caller-Times tell her side of the story?
Dorothy Earwood
Ethical compass
Trial lawyers invented the term "moral relativity." Trial lawyer Mikal Watts has attempted to frivolously dismiss a complaint filed with the Texas Ethics Commission against state Rep. Juan Garcia. Voters should question Watt's moral relativity. Watts is the financier and instigator behind Juan Garcia. Why?
Watts has a huge stake invested in Garcia. Watts' good government PAC practically funded Garcia's campaign. In Jaime Powell's column about Garcia's ethics violations, Watts said Garcia didn't have time to respond to constituents' complaints about Garcia's unreported $42,000 in contributions. Watts said Garcia needs "to work the people's business instead of spending time responding to complaints." What?
Why is Mikal Watts telling us that Garcia is too busy to respond to his constituents? Please, Mr. Watts, let Rep. Garcia speak and let him speak for himself. Does he need a trial lawyer to speak for him? Let Juan Garcia tell us about his misreporting $42,000 in contributions. Rep. Garcia, we teach our children that our government representatives are morally ethical individuals. Hopefully, that belief is instilled, will make them great supporters, advocates and voting participants in our democracy. Sad, but true; you sir, have let them down. The compass of your moral relativity has cracked.
Leo O. GildersleevE
No one's perfect
For 12 years Melody Cooper has served us well, the residents of Corpus Christi, in the capacity of City Council member. Personally, I see no reason for her to resign as some are suggesting.
Those asking for her to resign should ask of themselves, "Have I ever made a mistake?" Where is your compassion?
We humans are not perfect and should have consideration for others when they err. Who are we to judge? Let the Almighty take care of this.
Also, the recent city elections are over, the people who voted have spoken, so let us give the new council our support, show the members respect and allow them to work together as a team for the betterment of our city.
Cefe F. Valenzuela
Shamsie's folly
Thank you, Judge Shamsie, for your years of service. Just one question, could you tell us how much more your bungled job is going to cost the taxpayers of Nueces County?
Between the Fairgrounds and the road projects, Judge Shamsie has cost the taxpayers hundreds of thousands of dollars in legal fees and penalties. How much more is hidden in the ongoing projects and contracts that we don't know about yet? For the sake of a few minutes of his time we paid a huge chunk of fees and expenses to clear up the Fairgrounds issues.
It is sorry that in his wake the new judge has to clean up his mess, and at our expense. What is more sorry is that there doesn't seem to be any accountability for the mistakes made by our elected officials.
Think of all the good a couple of hundred thousand dollars could do. It could have been used to fix some of the drainage issues, rather than draining the funds to the lawyers who have to fix the mess.
We taxpayers really have bigger needs and better use for the dollars that Judge Shamsie wasted by lack of attention to detail. Please, Judge Neal, pay more attention to the fine points that so readily waste our hard-earned money.
Steven Cohen
Post Your Comments
Posted by drtcpip on May 22, 2007 at 7:59 a.m. (Suggest removal)
Amen Judge Sham. Indeed your legacy will be like your predecessor, Lord High Protector of Robstown, Borchard. Spends millions of our dollars for your little pet projects. Adios amigo and good riddance.
Posted by rabbit78418 on May 22, 2007 at 9:29 a.m. (Suggest removal)
How can you intentionally falsify legal documents and then say sorry I made a mistake? The mistake was thinking she could lie and get away with it.
Posted by smfuentes1 on May 22, 2007 at 10:20 a.m. (Suggest removal)
I totally agree with Pat Dunegan, if there is a bomb threat, how can you lock down the school and keep the kids inside, while you search to see if the threat is valid, and if it is valid, and the bomb goes off, you just lost alot of innocent lives, by the decision not to evacuate as soon as you got the bomb threat. Most likely if there is a bomb, it will be inside the school, so whoever came up with this bright idea to keep the kids in lockdown, better start thinking twice, before something bad really happens.
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Tuesday, May 01, 2007
In fact, the search of a residence without a judicially authorized warrant is presumptively unreasonable.
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IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
NO. PD-1633-05
ERNEST M. GUTIERREZ, Appellant
v.
THE STATE OF TEXAS
ON APPELLANT'S PETITION FOR DISCRETIONARY REVIEW
FROM THE THIRTEENTH COURT OF APPEALS
NUECES COUNTY
Price, J., delivered the opinion of the Court in which Keller, P.J., and Meyers, Keasler, hervey, Holcomb and Cochran joined. Johnson, J., concurred in the result. Womack, J., filed a dissenting opinion.
O P I N I O N
We granted review in this case to examine whether the Thirteenth Court of Appeals erred in deciding that a police officer's warrantless intrusion into the appellant's home was allowable under the theory of exigent circumstances and probable cause. We conclude the court of appeals did err in its analysis. However, we affirm the judgment of the court of appeals on grounds that the police entry and search was justified by the appellant's consent.
THE FACTS AND PROCEDURAL POSTURE
On March 7, 2002, Detective Douglas Rush of the Corpus Christi Police Department was informed by a detective in Plano that a laptop computer had been stolen. (1) The Plano detective informed Rush that the computer was equipped with an anti-theft program which, when activated, would provide the address and phone number of the location where the computer was last used to access the internet. The Plano detective relayed to Rush that the computer had been used at 3129 Eisenhower in Corpus Christi the previous night.
On this information, Rush and Detective Felix Gonzalez proceeded to the Eisenhower address, which is the appellant's home. Prior to the detectives' arrival, the appellant was smoking marijuana inside his house. When the officers arrived at the address, (2) the appellant heard car doors close, saw the approaching officers out of his window, put out his marijuana cigarette and met the detectives on his porch, closing his front door behind him. Rush asked the appellant about the stolen computer. The appellant initially denied having the computer, but recanted and then admitted the computer was inside his house. (3) While the conversation between Rush and the appellant was taking place, Gonzalez smelled marijuana and observed that the appellant had bloodshot eyes and was very nervous.
The appellant told the officers he would go into the house and bring the computer out to the officers. Rush explained that he could not let the appellant go into the house alone, as a matter of officer safety and police policy. Rush filled out a consent to search form on the appellant's porch, and explained the form to the appellant. (4) The detective asked the appellant if he and Gonzalez could enter the home. The appellant agreed, opened his door, and reentered his home. Though the consent form was still unsigned, the detectives followed the appellant into his home. (5) After the appellant and the detectives entered the threshold of the house, the appellant signed the consent to search form.
Once inside, the appellant retrieved the computer and gave it to Rush. Both detectives noticed the odor of burnt marijuana and a marijuana cigarette in plain view on a table in the living room. The detectives continued a cursory visual search and found cash, a police scanner, and several plastic baggies. The detectives called for assistance from narcotics officers. Upon their arrival, the narcotics officers conducted a thorough warrantless search of the appellant's house. This search resulted in the discovery of cocaine, cash, a pistol and ammunition, digital scales, and other drug paraphernalia. Subsequently, the appellant gave two statements regarding his possession of marijuana, cocaine, and the computer.
The appellant was indicted for possession with the intent to deliver 400 grams or more of cocaine. He filed a pretrial motion to suppress the evidence, and the trial court held a hearing on the motion. At the hearing, the appellant argued that consent was not freely and voluntarily given and all evidence subsequently found in the appellant's home was the fruit of the poisonous tree. After listening to the testimony of several witnesses, including the appellant, the trial court denied the motion. At trial, the legality of the search, specifically whether the appellant gave valid consent, was again litigated. The issue was submitted to the jury, and the jury ultimately convicted the appellant.
On appeal, the appellant alleged the consent obtained by the detectives, both prior to and after entry, was not voluntarily given. The State refuted the appellant's contention that consent was not voluntarily obtained, and further argued that, under a theory of probable cause and exigent circumstances, the warrantless entry into the appellant's home and the ensuing search did not violate the protections guaranteed by the Fourth Amendment. In a memorandum opinion, the court of appeals adopted the State's latter position, holding that, "[w]ithout determining appellant's arguments regarding the voluntariness of his consent, we conclude the police had ample probable cause and exigent circumstances to enter the home." (6) We granted the appellant's petition for discretionary review to examine the issue of whether the warrantless intrusion by the police into his home was justified by the existence of probable cause coupled with exigent circumstances.
ANALYSIS
The Fourth Amendment grants individuals "the right . . . to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures." (7) In determining the reasonableness of a search or seizure, the actions of police are judged by balancing the individual's privacy interest against the Government's interest in law enforcement. (8) The balancing test is utilized to ensure that an individual's Fourth Amendment rights are not subjected to "arbitrary invasions at the unfettered discretion of officers in the field." (9)
There is a strong preference for searches to be administered pursuant to a warrant. (10) In fact, the search of a residence without a judicially authorized warrant is presumptively unreasonable. (11) However, this does not mean all searches must necessarily be conducted under the authority of a warrant. For example, if police have probable cause coupled with an exigent circumstance, or they have obtained voluntary consent, or they conduct a search incident to a lawful arrest, the Fourth Amendment will tolerate a warrantless search. (12) Yet, the warrant requirement is not lightly set aside, and the State shoulders the burden to prove that an exception to the warrant requirement applies. (13)
To validate a warrantless search based on exigent circumstances, the State must satisfy a two-step process. (14) First, there must be probable cause to enter or search a specific location. (15) In the context of warrantless searches, probable cause exists "when reasonably trustworthy facts and circumstances within the knowledge of the officer on the scene would lead a man of reasonable prudence to believe that the instrumentality . . . or evidence of a crime will be found." (16) Second, an exigency that requires an immediate entry to a particular place without a warrant must exist. (17) We have identified three categories of exigent circumstances that justify a warrantless intrusion by police officers: 1) providing aid or assistance to persons whom law enforcement reasonably believes are in need of assistance; 2) protecting police officers from persons whom they reasonably believe to be present, armed, and dangerous; and 3) preventing the destruction of evidence or contraband. (18) If the State does not adequately establish both probable cause and exigent circumstances, then a warrantless entry will not withstand judicial scrutiny. (19)
Here, the court of appeals found that probable cause and an exigent circumstance were both present when the police confronted the appellant on his porch. In finding sufficient probable cause, the court of appeals noted that the officers were aware that the appellant had possession of the stolen computer and marijuana, that he initially lied to them about his possession of the laptop, and that he had bloodshot eyes and was increasingly nervous. (20) The court of appeals then observed:
Where police have evidence of mari[j]uana and stolen property in a home, we cannot conclude they are required to stand by and allow that person to enter the home alone . . . . A reasonable police officer could believe that appellant was attempting to destroy the mari[j]uana or the computer or both, or even flee from the officers or engage in some action that might threaten officer safety. (21)
We agree with this observation, insofar as it goes. Assuming the police indeed had probable cause, the exigency of the situation called for a measured police response to maintain the status quo. We disagree, however, that the exigency perceived by the court of appeals was such as reasonably to authorize a full-blown search of the appellant's home. The detectives' response of conducting a warrantless search of the entire home far exceeded the scope of the particular exigent circumstance they faced. When confronted with an urgency that requires immediate police action and does not allow for the procurement of a warrant, law enforcement is authorized to take reasonable steps to secure the status quo. But this exception to the warrant requirement does not grant police the unfettered discretion to take any course of action, however disproportionate it may be to the perceived exigency. (22)
Because we reject the court of appeals's reliance upon exigent circumstances, we must next address the issue of consent. An exception to the warrant requirement, consent is valid when it is voluntarily given. (23) The validity of a consensual search is a question of fact, and the State bears the burden to prove by clear and convincing evidence that consent was obtained voluntarily. (24) This burden includes proving that consent was not the result of duress or coercion. (25) To determine whether this burden is met, we examine the totality of the circumstances. (26)
In the case before us, the issue of consent was hotly contested at both the pretrial suppression hearing and the trial on the merits. The appellant and the State presented diametrically opposed versions of the search of the appellant's residence. When there is contradictory evidence and witness credibility is at issue, a longstanding standard of review guides our analysis.
In reviewing a trial court's ruling on a motion to suppress, we review the evidence in the light most favorable to the trial court's ruling. (27) When the trial court fails to make explicit findings of fact, we imply fact findings that support the trial court's ruling so long as the evidence supports these implied findings. (28) Generally, implied findings would be limited to the record produced at the suppression hearing. (29) However, when the parties subsequently re-litigate the suppression issue at the trial on the merits, we consider all evidence, from both the pre-trial hearing and the trial, in our review of the trial court's determination. (30)
Construed in the light most favorable to the trial court's ruling, the testimony shows that the appellant, after his initial lie, was cooperative with the detectives. On the porch, Rush explained to the appellant that he could not allow the appellant to reenter his home alone. Rush then filled out a consent form and explained the form to the appellant. It is true that the evidence indisputably establishes that the consent form was not signed until the detectives were already inside the appellant's home. But the detectives testified that they entered initially with oral consent from the appellant. Although the appellant disputed their account, (31) we presume that the trial court resolved this dispute against him.
The consent form that the appellant signed, if in fact voluntary, unquestionably authorized a complete search of the premises. (32) If the appellant's testimony is credited, the appellant apparently signed the consent form only after the detectives threatened to take away his property and his family. (33) Implicit in the trial court's resolution of this issue, however, is that it found the detectives' account the more reliable. Crediting that account, we find that the evidence shows that the consent form was signed voluntarily. The appellant was cooperative, and aside from his initial lie to the detectives, he answered their questions willingly and courteously. The exchange was neither confrontational nor provocative. When asked, the appellant agreed to let the detectives enter his home. Discounting the appellant's own testimony, the evidence does not suggest his will was overborne at any point with threats. According to the detectives, his consent was free of the taint of duress or coercion, and he voluntarily, of his own free will, consented to the police entry and search. Reviewing the evidence, thus, in the light most favorable to the trial court's ruling, we hold that the State satisfied its burden of proving, by clear and convincing evidence, that the appellant's consent was obtained voluntarily.
CONCLUSION
We hold that the actions of law enforcement in searching the appellant's home without a search warrant were not justified under the exigent circumstances exception to the Fourth Amendment. The police were not faced with an exigent circumstance that necessitated a full-blown search of the home. By responding disproportionately to the scope of the exigent circumstances, the detectives needlessly tipped the delicate balance between government and individual in favor of the government.
However, the police officers' conduct is justified under another exception: consent. The appellant voluntarily consented to the police entry and search of his home. All evidence found inside the premises was lawfully obtained under this exception to the warrant requirement. Accordingly, we affirm the judgment of the court of appeals.
Delivered: April 25, 2007
Publish
1. We present the factual background in the light most favorable to the trial court's ruling.
2. Detectives Rush and Gonzalez were dressed in plain clothes, but their badges were displayed. The appellant noticed their badges and testified at the pretrial hearing that he was aware the two individuals were police officers.
3. The appellant claimed he purchased the laptop from a third party. He was not ultimately charged for any offense relating to the stolen computer.
4. The Consent to Search form authorized a complete search of the appellant's home.
5. The appellant described a vastly different version of the events that transpired after he admitted to possessing the computer. According to the appellant, he asked the detectives whether they would leave if he went inside and retrieved the computer. The detectives agreed. The appellant then entered his home and attempted to shut his front door to prevent marijuana smoke from escaping outside. As he tried to close his door, Rush stuck his foot into the doorway. Rush then forced open the door, and he and Gonzalez burst into the house. The appellant grabbed the computer, handed it over to Rush, and asked the detectives to leave. The detectives responded that they would not leave, and Rush stated that he needed the appellant to sign a Consent to Search form. The appellant did not think he needed to sign the consent form because he believed he fully cooperated by retrieving the computer.
Also, during this time, the appellant's wife and daughter emerged from the back of house into the living room where the appellant and the detectives were. Gonzalez told the appellant that he was going to call Child Protective Services(CPS) to come and pick up the appellant's daughter. The detectives threatened to seize his property, take his wife to jail, and take his daughter to CPS if he did not sign the consent form. The appellant agreed to sign the form if they would allow his mother-in-law to come pick up his daughter and wife. The detectives allowed the daughter to leave with the appellant's mother-in-law, but his wife stayed. The appellant then signed the consent form. By this time the detectives had discovered a bag of marijuana and a bag of money, in addition to the plainly visible marijuana cigarette the appellant had smoked prior to the detectives' arrival.
6.
Gutierrez v. State, No. 13-04-186-CR, 2005 Tex. App. LEXIS 6949, at *3 (Tex. App.--Corpus Christi Aug. 25, 2005) (not designated for publication).
7. U.S. Const. amend. IV.
8.
Schenekl v. State, 30 S.W.3d 412, 413 (Tex. Crim. App. 2000) (citing Delaware v. Prouse, 440 U.S. 648, 654 (1979)).
9.
Schenekl, 30 S.W.3d at 413.
10.
United States v. Ventresca, 380 U.S. 102, 106 (1965); Beeman v. State, 86 S.W.3d 613, 615 (Tex. Crim. App. 2002). See also Illinois v. McArthur, 531 U.S. 326, 338 (2001) (Souter, J., concurring) ("[A] search with a warrant has a stronger claim to justification on later, judicial review than a search without one.").
11.
Payton v. New York, 445 U.S. 573, 586 (1980).
12.
McGee v. State, 105 S.W.3d 609, 615 (Tex. Crim. App. 2003).
13.
United States v. Robinson, 414 U.S. 218, 243 (1973); see also McGee, 105 S.W.3d at 615.
14.
Parker v. State, 206 S.W.3d 593, 597 (Tex. Crim. App. 2006).
15.
Id.
16.
Estrada v. State, 154 S.W.3d 604, 609 (Tex. Crim. App. 2005).
17.
Parker, 206 S.W.3d at 597.
18.
McNairy v. State, 835 S.W.2d 101, 107 (Tex. Crim. App. 1991).
19.
Parker, 206 S.W.3d at 597.
20.
Gutierrez, 2005 Tex. App. LEXIS 6949, at *4.
21.
Id. at *5.
22.
See Mincey v. Arizona, 437 U.S. 385, 393-94 (1978) (declaring "warrants are generally required to search a person's home or his person unless 'the exigencies of the situation' make the needs of law enforcement so compelling that the warrantless search is objectively reasonable under the Fourth Amendment")
23.
Harrison v. State, 205 S.W.3d 549, 552 (Tex. Crim. App. 2006); Reasor v. State, 12 S.W.3d 813, 818 (Tex. Crim. App. 2000); Ohio v. Robinette, 519 U.S. 33, 40 (1996).
24.
See, e.g., Rayford v. State, 125 S.W.3d 521, 528 (Tex. Crim. App. 2003) (stating consent is a question of fact); Robinette, 519 U.S. at 40 (concluding that consent is a question of fact); Harrison, 205 S.W.3d at 552 (stating that clear and convincing evidence is the burden of proof for voluntariness of consent in Texas); Reasor, 12 S.W.3d at 818 (articulating the State's burden of proof).
25.
Carmouche v. State, 10 S.W.3d 323, 331 (Tex. Crim. App. 2000); Allridge v. State, 850 S.W.2d 471, 493 (Tex. Crim. App. 1991); Schneckloth v. Bustamonte, 412 U.S. 218, 227-28 (1972).
26.
Harrison, 205 S.W.3d at 552; Reasor, 12 S.W.3d at 818; Robinette, 519 U.S. at 40.
27.
State v. Kelly, 204 S.W.3d 808, 818 (Tex. Crim. App. 2006); State v. Ross, 32 S.W.3d 853, 855 (Tex. Crim. App. 2000); Carmouche v. State, 10 S.W.3d 323, 328 (Tex. Crim. App. 2000).
28.
Kelly, 204 S.W.3d at 818-19; Ross, 32 S.W.3d at 855; Carmouche, 10 S.W.3d at 328. But see State v. Cullen, 195 S.W.3d 696, 698-700 (Tex. Crim. App. 2006) (holding that when the losing side at a suppression hearing requests findings of fact and conclusions of law, the trial court is required to make such findings). The appellant did not request findings from the trial court.
29.
See Rachal v. State, 917 S.W.2d 799, 809 (Tex. Crim. App. 1996).
30.
Id. ("Where the State raises the issue at trial either without objection or with subsequent participation in the inquiry by the defense, the defendant has made an election to re-open the evidence, and consideration of the relevant trial testimony is appropriate in our review.")
31.
See note 5, ante.
32. The text of the Consent to Search form reads:
I, Ernest M. Gutierrez, having been informed by the hereafter named Texas Peace Officer that I have a Constitutional right to be free from having him or any other officer make a warrantless search of the hereafter mentioned place under my control and a constitutional right to refuse to give him or any other officer consent to make a search of that kind and those rights are guaranteed by both the Texas and Federal Constitutions, do hereby authorize
[Detective Douglas Rush]
Texas Peace Officer
and any officers working with him to conduct a complete search of the following place located in Nueces County, Texas, namely:
3129 Eisenhower
Corpus Christi
Nueces Co., TX
and to seize and take from there any item of personal property they may believe to constitute evidence in a criminal proceeding.
I have given this consent of my own free will and accord and without being subjected to any compulsion, threats, promises, or persuasion of any kind.
I know that any items of personal property seized by the above named officer or other officers with him and taken by them from such place can and will be used against me in a criminal proceeding.
(Italics represent handwritten portions on the consent form.)
33.
See note 5, ante.
Labels: consent, lies, warrant
// posted by dannoynted1 @ 12:04 AM 0 comments links to this post
Tuesday, March 20, 2007
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// posted by dannoynted1 @ 3:19 AM 0 comments links to this post
Tuesday, March 13, 2007
is this a crime or a fine??????//////
Carlos E. Zamora, M.D., DAB No. 1104 (1989)
DEPARTMENT OF HEALTH AND HUMAN SERVICES
DEPARTMENTAL APPEALS BOARD
In the Case of
Carlos E. Zamora, M.D.,
Petitioner
vs.
The Inspector General
Date: September 25, 1989
Appellate Docket No. 89-100
Decision No. 1104
FINAL DECISION ON REVIEW OF ADMINISTRATIVE LAW JUDGE
DECISION
The Petitioner, Dr. Carlos E. Zamora, appealed the decision of
Administrative Law Judge (ALJ) Steven T. Kessel affirming the
determination of the Inspector General (the I.G.) to exclude the
Petitioner from participating in the Medicare program (Title XVIII of
the Social Security Act, (Act)) for five years and to direct that he be
excluded from participating in State health care programs (including
Medicaid, Title XIX of the Act) for the same length of time.
Criminal proceedings were instituted against the Petitioner in a Texas
state court based on his alleged submission of false Medicaid claims.
The petitioner pled nolo contendere to the charges against him and was
placed on probation. After successfully completing his probation, the
Petitioner was allowed to withdraw his plea and the charges against him
were dismissed. Consequently, under Texas law, no conviction existed
under those circumstances. However, the I.G. found that, under the
applicable federal statute, the Petitioner had been convicted of a
criminal offense and excluded him from participation in Medicare.
Before Judge Kessel, the Petitioner relied on state law to argue that
since he had not been convicted of a criminal offense, there was no
basis for his exclusion from the Medicare program. Judge Kessel
rejected the Petitioner's argument and sustained the exclusion. On
appeal to this Board, the Petitioner relied on his arguments before the
ALJ as well as those made in the Petitioner's motion for a preliminary
injunction to enjoin his suspension from Medicare. See Zamora v. Bowen,
Civil Action No. A-88-CA-987 (W.D. Texas 1988); I.G. Exhibit (Ex.) D.
Additionally, the Petitioner raised a new argument in which he alleged
that the I.G.'s decision to exclude him was contrary to the applicable
program regulations. Petitioner's Brief (Br.), pp. 1-2.
Based on the following analysis, we conclude that the ALJ's decision to
exclude Dr. Zamora was correct. Accordingly, we affirm Judge Kessel's
decision in its entirety.
FINDINGS OF FACT AND CONCLUSIONS OF LAW
Judge Kessel made the following findings and conclusions:
1. Petitioner is a physician who has practiced in Texas.
2. In 1988, the State of Texas indicted Petitioner for
tampering with a governmental record for submitting false
Medicaid claims.
3. On May 18, 1988, Petitioner entered a nolo contendere plea
in Texas state court to a misdemeanor offense of tampering with
a government[al] record. In accepting the plea, the Court found
that the evidence substantiated the Petitioner's guilt of
tampering with a governmental record.
4. The Court also found that the ends of justice and the best
interests of both society and the Petitioner would be served by
deferring further proceedings without entering an adjudication
of guilt at that time, and by placing the Petitioner on
probation.
5. On November 2, 1988, an order was entered in Texas state
court, pursuant to Art. 42.12, Sec. 7 of the Texas Code of
Criminal Procedure, modifying Petitioner's period of probation
to the time served from May 18, 1988, discharging Petitioner
from probation, withdrawing Petitioner's nolo contendere plea,
and dismissing the prosecution against him.
6. On October 28, 1988, the I.G. advised Petitioner that he was
excluding Petitioner from participating in the Medicare program,
and was directing that Petitioner be excluded from participating
in State health care programs, for five years. The exclusions
were based on the I.G.'s determination that Petitioner had been
convicted of a criminal offense related to the delivery of an
item or service under the Medicaid program.
7. Petitioner's nolo contendere plea in Texas state court
constitutes a "conviction" within the meaning of 42 U.S.C.
1320a-7(i), notwithstanding the provisions of Article 42.12 of
the Texas Code of Criminal Procedure, or the terms of the
November 2, 1988 Order entered in Texas state court in
Petitioner's case.
8. The actions taken by the I.G., excluding Petitioner from
participating in the Medicare program and directing his
exclusion from participating in State health care programs, were
mandated by 42 U.S.C. 1320a-7(a)(1).
Decision No. C-74, pp. 4-5 (citations to that record omitted).
PROCEDURAL BACKGROUND
During its February 1988 term, the Grand Jury for Hays County, Texas,
indicted the Petitioner for tampering with a governmental record, by
submitting false Medicaid claims. On May 18, 1988 the petitioner
entered a plea of nolo contendere to this charge in the 22nd Judicial
District Court of Hays County. That Court found that the evidence
before it substantiated Dr. Zamora's guilt and accepted the plea.
However, the Court deferred adjudication and placed Dr. Zamora on
probation. See State of Texas v. Carlos Zamora, No. CR 88-74; I.G. Ex.
A. On November 2, 1988 the Court granted the Petitioner's motion for
termination of probation (reduced to time served), dismissed the charges
against Dr. Zamora, and allowed him to withdraw his plea. I.G. Ex. B.
On October 28, 1988 the I.G. notified the Petitioner that, due to his
program-related conviction, he would be suspended from participation in
Medicare on November 17, 1988 pursuant to subsection 1128(a) of the Act.
On November 16, the Petitioner unsuccessfully sought to enjoin the I.G.
from excluding the Petitioner from Medicare. See Zamora v. Bowen,
supra.
The Petitioner then timely requested a hearing as to the exclusion
before an ALJ. The basis of that appeal was that since no judgment of
conviction was entered by the state court, then, under Texas law, the
Petitioner had not been convicted. Accordingly, there was no basis for
his exclusion from Medicare. On March 30, 1989, the ALJ issued his
decision in which he found that the Petitioner's nolo contendere plea
was a "conviction" as defined by the Act, regardless of how that plea
was viewed by the Texas court.
The Petitioner took specific exception "to Findings of Fact and/or
Conclusions of Law Number 7 and 8" (set out above), arguing that the
ALJ's interpretation of the federal statutes and regulations relating to
exclusion from the Medicaid and Medicare programs was erroneous.
Further, the Petitioner generally contended that those findings and
conclusions represented an erroneous application of the federal statutes
and regulations to the facts of this case. Petitioner Br., p. 4.
Analysis
1. The ALJ's decision to exclude Dr. Zamora was fully supported by
the law and was, therefore, correct.
The Petitioner's argument that, since the nolo contendere plea was
vacated by a Texas Court, he had not been "convicted" for purposes of
subsection 1128(a), ignores the plain language of the federal statute
and its underlying legislative history. There is simply no question
that under the circumstances presented here, the Petitioner cannot avoid
the exclusion. This point was driven home emphatically, both by Judge
Kessel's decision and by Judge James R. Nowlin in U.S. District Court
proceedings denying the Petitioner's Motion for a preliminary
injunction. See I.G. Ex. D.
Subsection 1128(i) of the Act defines "conviction" for purposes of
subsection 1128(a). In relevant part, that section provides that a
person or entity is considered to have been convicted of a criminal
offense--
* * *
(3) when a plea of guilty or nolo contendere by the individual
or entity has been accepted by a Federal, State or local court;
or
(4) when the individual or entity has entered into
participation in a . . . deferred adjudication . . . program
where judgment of conviction has been withheld.
Although the statutory language is clear, the corresponding legislative
history emphatically affirms that Congress intended to include a plea of
nolo contendere within the scope of the term "conviction", even though
under state law and practice no judgment of conviction is ever entered.
The Congressional committee charged with drafting the 1986 amendments to
the statute stated--
The principal criminal dispositions to which the exclusion
remedy [currently] does not apply are the "first offender" or
"deferred adjudication" dispositions. It is the Committee's
understanding that States are increasingly opting to dispose of
criminal cases through such programs, where judgment of
conviction is withheld. The Committee is informed that State
first offender or deferred adjudication programs typically
consist of a procedure whereby an individual pleads guilty or
nolo contendere to criminal charges, but the court withholds the
actual entry of a judgment of conviction against them and
instead imposes certain conditions of probation, such as
community service or a given number of months of good behavior.
If the individual successfully complies with these terms, the
case is dismissed entirely without a judgment of conviction ever
being entered.
These criminal dispositions may well represent rational criminal
justice policy. The Committee is concerned, however, that
individuals who have entered guilty or nolo [contendere] pleas
to criminal charges of defrauding the Medicaid program are not
subject to exclusion from either Medicare or Medicaid. These
individuals have admitted that they engaged in criminal abuse
against a Federal health program and, in the view of the
Committee, they should be subject to exclusion. If the
financial integrity of Medicare and Medicaid is to be protected,
the programs must have the prerogative not to do business with
those who have pleaded to charges of criminal abuse against
them.
H.R. No. 727, 99th Cong., 2d Sess. 75, reprinted in 1986 U.S. CODE CONG.
& AD. NEWS 3607, 3665.
The committee added --
With respect to convictions that are "expunged," the Committee
intends to include all instances of conviction which are removed
from the criminal record of an individual for any reason other
than the vacating of the conviction itself, e.g., a conviction
which is vacated on appeal. Id.
Thus, it is readily apparent that Congress intended to exclude from the
Medicare program not only those individuals convicted of criminal
wrongdoing by a judge or jury, but those, such as the Petitioner, who
pleaded nolo contendere, had their pleas entered and accepted by the
court, but after serving a period of probation had the case against them
dismissed without a judgment of conviction ever being entered. Thus,
the statute focuses the I.G.'s inquiry on whether an individual (or
entity) pled guilty or nolo contendere to the criminal charges against
him, rather than allowing an individual state's ultimate disposition of
a case without entering a judgment of conviction to dictate the I.G.'s
course of action. As the ALJ pointed out, Congress determined that
parties who pled guilty (or nolo contendere) to program-related offenses
were as untrustworthy as those convicted after a trial. Decision C-74,
p. 8.
In view of the clear direction of the controlling statute, the
Petitioner's argument regarding the manner in which Texas law views
deferred adjudication is not persuasive. As the ALJ noted, the purpose
of the deferred adjudication and expungement provisions in Texas law was
to provide an individual with limited protection from further penalties
by Texas. See Decision C-74, pp. 9-10; citing Gonzalez de Lara v.
United States, 439 F.2d 1316 (5th Cir. 1971). Whatever its underlying
purpose, the state law cannot reasonably be read as altering an
individual's status under federal law.
Based on the foregoing analysis we affirm Judge Kessel's Findings and
Conclusions Numbers 7 and 8 to which the Petitioner had taken exception.
2. The Petitioner alleged that the I.G.'s exclusion of Dr. Zamora
was contrary to the applicable implementing regulations.
The Petitioner noted that in 1987 section 1128 of the Act was amended to
define the term "conviction." The Petitioner then cited 42 C.F.R.
1001.136 which provides that the I.G. "will reinstate a suspended party
whose conviction has been reversed or vacated." The Petitioner asserted
that, since the regulation had not been repealed or amended to reflect
the statutory definition, the I.G. was bound to reinstate Dr. Zamora
after the court vacated his conviction.
The I.G. asserted that since the Petitioner's argument was one which
could have and should have been raised before the ALJ, the Board should
not consider it here. Alternatively, the I.G. contended that the
Petitioner's argument is without merit. The I.G. noted (and we have
pointed out elsewhere in this decision) that the legislative history of
the statute clearly contemplated that a vacated conviction is one that
is overturned or vacated on appeal. The I.G. indicated that acceptance
of the Petitioner's plea of nolo contendere was based on the Court's
belief that the Petitioner had committed the charged offense. The
conviction was vacated on the Court's determination that the defendant
had satisfactorily fulfilled the conditions of his probation. The I.G.
distinguished this situation from a court's finding that an adjudication
of a defendant's guilt was in error so that it should be rendered void;
in that case, there would not be a "conviction" under the statutory
definition. Thus, the I.G. argued, dismissal of proceedings against the
Petitioner after probation cannot be considered a disposition on appeal.
Rather, only a reversal by an appellate court would require the I.G. to
reinstate an individual. I.G. Br., pp. 22-24.
The Appellate Division Guidelines provide in relevant part --
III. (c) . . . The Panel will not consider issues not raised
in the appeal, nor issues which could have been presented to the
ALJ but were not.
As we note in section III.(b) of the Guidelines, the standard which we
employ in reviewing a disputed factual issue is whether the ALJ's
decision is supported by substantial evidence in the record. The
standard of review which we use regarding a disputed issue of law is
whether the ALJ's decision is erroneous. Our process was not meant to
be one of de novo review. See 42 C.F.R. 498.80 - 498.95.
Clearly, the Petitioner's argument as to whether the I.G. followed the
regulation at 42 C.F.R. 1001.136 should have been raised before the ALJ.
Since this argument cannot be raised at this stage in the process, we do
not consider whether the Petitioner could avoid the statutory exclusion.
In any event, the I.G. is correct that the regulation does not apply.
Conclusion
Based on the foregoing, we affirm the five-year exclusion imposed on the
Petitioner.
_____________________________ Cecilia Sparks
Ford
_____________________________ Theodore J. Roumel
U.S. Public Health Service
_____________________________ Alexander G. Teitz
Presiding Board
// posted by dannoynted1 @ 4:52 AM 0 comments links to this post
Sunday, February 11, 2007
Although there is no bright-line rule defining conduct violative
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Jacobson v. Garaas, 2002 ND 181, 652 N.W.2d 918
[Go to Docket]
Filed Nov. 15, 2002
[Download as WordPerfect]
IN THE SUPREME COURT
STATE OF NORTH DAKOTA
2002 ND 181
In the Matter of Disciplinary Action Against Jonathan T. Garaas, a Member of the Bar of the State of North Dakota
Paul W. Jacobson, Disciplinary Counsel, Petitioner
v.
Jonathan T. Garaas, Respondent
No. 20020103
Jonathan T. Garaas, Petitioner
v.
Disciplinary Board of the Supreme Court of the State of North Dakota, Respondent
No. 20020113
Petitions for disciplinary review.
REPRIMANDED.
Per Curiam.
Paul W. Jacobson, P.O. Box 2297, Bismarck, N.D. 58502-2297, for petitioner.
Ronald H. McLean (argued) and Timothy G. Richard (on brief), Serkland Law Firm, P.O. Box 6017, Fargo, N.D. 58108-6017, for respondent.
In re Garaas
Nos. 20020103 & 20020113
Per Curiam.
[¶1] Jonathan T. Garaas and Disciplinary Counsel have both petitioned for review of a hearing panel's report and order of reprimand, which found Garaas had violated the North Dakota Rules of Professional Conduct and ordered that Garaas be publicly reprimanded and pay costs of the disciplinary proceeding. We conclude Garaas has violated N.D.R. Prof. Conduct 3.5(a), 3.5(b), and 8.4(e), and we order that he be publicly reprimanded and pay the costs of the disciplinary proceedings in the amount of $7,312.42.
I
[¶2] Garaas has represented TAG Investments in lengthy and contentious litigation with Matrix Properties Corporation over a disputed option to purchase real estate. That litigation has spawned numerous appeals. See Matrix Properties Corp. v. JCG Investments, L.L.C., 2002 ND 99, 647 N.W.2d 706; Matrix Properties Corp. v. TAG Investments, 2002 ND 86, 644 N.W.2d 601; Matrix Properties Corp. v. TAG Investments, 2001 ND 128, 636 N.W.2d 674; Matrix Properties Corp. v. TAG Investments, 2000 ND 213, 622 N.W.2d 432; Matrix Properties Corp. v. TAG Investments, 2000 ND 88, 609 N.W.2d 737. This disciplinary proceeding arose out of Garaas's conduct at post-judgment proceedings in the Matrix litigation occurring in November 2000 and January 2001.
[¶3] At a November 7, 2000, hearing on Matrix's motion to compel transfer of the real estate, Garaas made repeated assertions that opposing counsel was making false representations of fact and had lied to the court. Garaas at one point stated:
Your Honor, I cannot let it go by one more time because Mr. Spaeth just lied to you one more time. . . . That representation by Mr. Spaeth is an absolute falsehood and he can't get away with it anymore. . . . And we will never accept Mr. Spaeth's false representation in violation of the Canons and in violation of every concept of due process that I know.
[¶4] At status conference on January 2, 2001, Garaas argued the court lacked jurisdiction in the matter because there was an appeal pending in this Court. The trial judge asked Garaas if his client would sign deeds conveying the disputed property if ordered to do so by the court at a court-supervised closing scheduled for January 5, 2001. In responding to the court's question, Garaas suggested that the trial judge was placing himself "at risk":
There is a lot of things that are going to have to be resolved, and I guess frankly I have a question in my mind as to whether or not the Court wants to enter into a course of action that places the trial court judge and the State of North Dakota at risk. . . .
So when you ask me a question as to whether or not we are going to sign a deed, there are so many things that still have yet to be resolved that why would the Court want to put this Court and the State of North Dakota at risk when we are guaranteed to have another lawsuit, guaranteed to have another trial to determine whether or not there has been damages or a quiet title action and establish what the record is for this property.
[¶5] On January 5, 2001, the court held a "Court Overseen Closing" to convey the disputed property. At the outset of that proceeding, the trial court stated it was acting pursuant to this Court's December 12, 2000, opinion in Matrix Properties, 2000 ND 213, 622 N.W.2d 432, in which we summarily affirmed an earlier post-judgment order and directed the trial court "to order specific performance requiring TAG and Grettum to convey the subject property upon tender by Matrix of the purchase price set in the 1996 option agreement." Garaas again argued the trial court lacked jurisdiction to order conveyance of the property, and asserted this Court had falsely represented the issues in the prior appeal:
The first issue was that the North Dakota Supreme Court has wrongfully identified the issue on appeal. Actually they made a false representation of what the issue was being appealed.
[¶6] At the January 5 hearing Garaas was allowed to argue at length, challenging jurisdiction of the trial court and whether Matrix had complied with the terms of the option. The court ultimately determined Matrix was prepared to tender payment of the purchase price and indicated it was TAG's "last chance" to execute deeds conveying the property or it would be judicially conveyed. The court then asked Garaas and his client, "Do you wish to comply with the order of the Court to convey this property?" After Garaas again reiterated his argument that Matrix had failed to comply with the option and the option had expired, the following colloquy occurred between Garaas and the court:
THE COURT: The Defendant -- the Defendant's counsel [Garaas] in the presence of the Court has informed the Court that they'll not comply with the Court's order. Proceed.
MR. GARAAS: Which Court order are you talking about, Your Honor?
THE COURT: The order to convey it's [sic] property.
MR. GARAAS: Which one was that, Your Honor?
THE COURT: The one they just made.
MR. GARAAS: At this point in time?
THE COURT: Yes.
MR GARAAS: On what legal basis, Your Honor?
THE COURT: Enough. Sit. Enough.
MR. GARAAS: On what legal basis? I only ask that this Court identify on what legal basis it acts, because my client has a right to know. My client has a right to due process of law, Your Honor.
THE COURT: Proceed.
MR. GARAAS: You will not answer my question, Your Honor?
THE COURT: Mr. Garaas, I've already put on the record that we're proceeding pursuant to the Supreme Court's directive of December 12th.
MR. GARAAS: And how does the court get around the fact that it isn't a final Supreme Court order and the mandate has not been returned to you and jurisdiction still is at the Supreme Court, Your Honor? How can this Court act in derogation of it's [sic] duties to honor the fact that jurisdiction is now at the Supreme Court level not back here. This Court can't act, Your Honor, on the basis of the December 12, 19 -- of the year 2000 decision of the Supreme Court. How can the Court act when it doesn't have jurisdiction based upon that order, Your Honor? My client would like to know.
THE COURT: The Court's been directed by the Supreme Court to proceed. The Supreme Court directs the District Court what to do. I am proceeding under that directive.
MR. GARAAS: Is there a directive that's different than the December 12, 2000, order, Your Honor? Has there been direct communication between the Supreme Court and this Court that is not of record and not reported on December 12th. Because there is no such directive other than the December 12th and that's not a final order. Is there a directive from the Supreme Court to this Court to proceed today that is not placed of record, Your Honor? Have you had telephone conversations with any member of the Supreme Court?
THE COURT: Mr. Garaas, of course not. But this now is getting to be ridiculous. You've tried these arguments now in front of eight different judges, five in the Supreme Court, Judge Erickson, this Court, Judge Webb. It's over now so we're gonna proceed. Go ahead.
MR. GARAAS: Has there been communications with any representative of the Supreme Court of North Dakota?
THE COURT: Sit down now, Mr. Garaas. Proceed.
MR. GARAAS: May I -- my client and I would like to know, Your Honor.
THE COURT: Mr. Garaas, this is the last time now before I ask you to be removed from the Court. We're gonna proceed with the hearing. Your partner will have to sit in your place. But this is beyond any appropriate measure of conduct for an attorney.
MR. GARAAS: I merely wanted to know what jurisdiction the Court was exercising, Your Honor.
THE COURT: Proceed.
[¶7] The court ultimately ordered judicial conveyance of the property. At the conclusion of the January 5 hearing, the trial court stated:
The Court's repeatedly heard arguments as to deficiencies in the Plaintiff's attempt to close this matter but these matters have been adjudicated or have no merit. The Defendants' arguments from the Court's perspective are for the purposes of delay. . . .
. . . .
This has been a case that's involved a lot of patience I guess on all parties involved. The Court's been disappointed in some of the conduct exhibited here with the way other officers of the Court have been treated, the way this Court and the Supreme Court has been referred to in these proceedings as doing or considering anything inappropriate.
[¶8] At the disciplinary hearing, the trial judge characterized Garaas's behavior as "threatening," "defiant," and "obstructionist," and stated "I didn't view him as attempting to help the Court resolve the matter on a legal basis." When asked about Garaas's comment that the judge might be putting himself "at risk," the judge testified he perceived it "as a threat to sue me personally" and "viewed it as an attempt to stop or delay the process of the Court's attempt to enforce the judgment."
[¶9] A petition for discipline was served charging Garaas with violations of N.D.R. Prof. Conduct 3.5(a), 3.5(b), 4.4, and 8.4(e), and N.D.R. Lawyer Discipl. 1.2(A)(8). The hearing panel concluded Garaas's "at risk" comments and the lengthy colloquy with the trial court during the January 5 hearing violated the disciplinary rules. The hearing panel further concluded Garaas's statement that Mr. Spaeth had lied did not constitute a breach of N.D.R. Prof. Conduct 4.4, and that Garaas's statement that this Court had made a false representation, while improper, had not been pleaded as a basis for discipline. Taking into consideration substantial mitigating circumstances, the hearing panel ordered that Garaas be publicly reprimanded and that he pay the costs of the disciplinary proceedings in the amount of $7,312.42. Both Garaas and Disciplinary Counsel petitioned for review of the hearing panel's report and order of reprimand. We granted the petitions for review.
[¶10] The hearing panel had jurisdiction under N.D.R. Lawyer Discipl. 3.1(E). Garaas and Disciplinary Counsel timely filed petitions for review under N.D.R. Lawyer Discipl. 3.1(F)(1). This Court has jurisdiction under N.D.R. Lawyer Discipl. 3.1(F)(1).
II
[¶11] We review disciplinary proceedings de novo on the record. In re Edwardson, 2002 ND 106, ¶ 9, 647 N.W.2d 126; In re Crary, 2002 ND 9, ¶ 7, 638 N.W.2d 23. We accord due weight to the findings and conclusions of the hearing panel, but we do not act as a mere rubber stamp. Edwardson, at ¶ 9; In re Swanson, 2002 ND 6, ¶ 6, 638 N.W.2d 240.
[¶12] Rule 3.1(F)(1), N.D.R. Lawyer Discipl., requires the petition for review of a hearing panel's order of reprimand to contain "a clear statement of the reasons petitioner believes the panel's decision is arbitrary, capricious, or unreasonable." That language is relevant only to our initial determination whether to grant the petition for review. If the petition is granted, and briefing and oral argument are ordered under N.D.R. Lawyer Discipl. 3.1(F)(1), we employ our traditional de novo review in determining whether discipline is warranted and the appropriate sanctions to be assessed. See Toth v. Disciplinary Board, 1997 ND 75, ¶¶ 10-11, 562 N.W.2d 744 (the "arbitrary, capricious, or unreasonable" standard under N.D.R. Lawyer Discipl. 3.1(D)(8) governs only the initial determination whether to grant leave to appeal from an informal disposition, and this Court will review the substantive evidence and the merits de novo on the record).
[¶13] Disciplinary Counsel bears the burden of proving each alleged violation of the disciplinary rules by clear and convincing evidence. Edwardson, 2002 ND 106, ¶ 9, 647 N.W.2d 23; Crary, 2002 ND 9, ¶ 7, 638 N.W.2d 23. Each disciplinary case must be considered on its own facts to decide what discipline is warranted. Edwardson, at ¶ 9; Swanson, 2002 ND 6, ¶ 6, 638 N.W.2d 240.
III
[¶14] Disciplinary Counsel argues the hearing panel erred in concluding that Garaas's statements about this Court making false representations "were not part of the petition for discipline."
[¶15] The hearing panel did not explain the basis for its conclusion these statements were not part of the petition for discipline. The petition for discipline quoted Garaas's statements that this Court had "wrongfully identified the issue on appeal" and had "made a false representation of what the issue was being appealed." The petition alleged Garaas's conduct violated N.D.R. Prof. Conduct 8.4(e), which provides it is professional misconduct to engage in conduct that is a basis for revocation or suspension of a lawyer's certificate of admission, and N.D.C.C. § 27-13-01(1), which provides that an attorney shall maintain respect for courts of justice and judicial officers.
[¶16] Although there is no dispute that the petition alleges that Garaas made the statements about this Court, Garaas contends that the petition failed to specifically detail the statutes and rule that would make his conduct sanctionable. Garaas claims the pleading is defective because it fails to specifically enumerate N.D.C.C. § 27-14-02(3), which is a necessary middle step between Rule 8.4(e) and N.D.C.C. § 27-13-01(1).
[¶17] In order to place Garaas's argument in context, a brief overview of the interplay between the rule and statutes is helpful. Rule 8.4(e) provides that it is professional misconduct for a lawyer to "engage in other conduct that is enumerated in the North Dakota Century Code as a basis for revocation or suspension of a lawyer's certificate of admission." Section 27-14-02(3), N.D.C.C., provides that a lawyer's certificate may be revoked or suspended if he willfully violates any of the duties of an attorney or counselor at law. Section 27-13-01(1), N.D.C.C., enumerates the duties of attorneys, and provides that every lawyer and counselor at law shall "[m]aintain respect for courts of justice and judicial officers." Thus, an attorney may be sanctioned for failing to maintain respect for the court.
[¶18] Garaas contends the petition failed to properly plead a violation based upon Garaas's statements because it did not specifically refer to N.D.C.C. § 27-14-02(3). Our rules for pleading in disciplinary proceedings are not so strict and arcane. Rule 3.1(E)(1), N.D.R. Lawyer Discipl., provides that the petition must be "sufficiently clear and specific to inform the lawyer of the alleged misconduct." In addition, N.D.R. Lawyer Discipl. 3.5(B) provides that, except as otherwise provided and insofar as appropriate, the North Dakota Rules of Civil Procedure apply in disciplinary proceedings. See In re Howe, 2001 ND 7, ¶ 7, 621 N.W.2d 361. Under the civil rules, a pleading is sufficient if it contains (1) a short, plain statement of the claim showing that the pleader is entitled to relief, and (2) a demand for the relief the pleader seeks. N.D.R.Civ.P. 8(a); Kaler v. Kraemer, 1998 ND 56, ¶ 7, 574 N.W.2d 588; In re Estate of Hill, 492 N.W.2d 288, 296 (N.D. 1992).
[¶19] Both N.D.R. Lawyer Discipl. 3.1(E)(1) and N.D.R.Civ.P. 8(a) adopt notice pleading, where the purpose is to place the party on notice as to the nature of the pleader's claim, and pleadings that indicate generally the type of claim that is involved are sufficient. See Estate of Hill, 492 N.W.2d at 296; Jablonsky v. Klemm, 377 N.W.2d 560, 565 (N.D. 1985). Pleadings are to be liberally construed to do substantial justice. See N.D.R.Civ.P. 8(f); Kaler, 1998 ND 56, ¶ 7, 574 N.W.2d 588; Estate of Hill, at 296. Under these liberal pleading rules, a pleading need not specifically allege every element of the claim. Kaler, at ¶ 7; Jablonsky, at 565.
[¶20] The petition for discipline in this case unambiguously placed Garaas on notice of the nature of the "claim" against him. The specific facts were alleged, including quotation of the exact statements alleged to have violated the rules. The petition further specified that Garaas's conduct violated N.D.C.C. § 27-13-01(1) and N.D.R. Prof. Conduct 8.4(e). Any doubt whether violation of a duty of an attorney under N.D.C.C. § 27-13-01 was a sanctionable offense is dispelled by the Comment to N.D.R. Prof. Conduct 8.4, which specifically enumerates N.D.C.C. § 27-13-01 as one of the statutes providing the basis for revocation or suspension of a lawyer's certificate of admission, and thus for sanctions under the rule. Furthermore, this Court has explicitly stated that failure to maintain respect for the court under N.D.C.C. § 27-13-01(1) will provide the basis for sanctions under N.D.R. Prof. Conduct 8.4(e). See In re Gronneberg, 2001 ND 158, ¶ 12, 634 N.W.2d 491.
[¶21] We conclude the petition adequately placed Garaas on notice of the nature of the allegations against him and satisfied the requirements of N.D.R. Lawyer Discipl. 3.1(E)(1) and N.D.R.Civ.P. 8(a).
IV
[¶22] There is no real factual dispute about Garaas's conduct. All of the alleged misconduct consisted of statements made in open court, and Garaas does not dispute the accuracy of the transcripts of what he said. The dispositive issue is whether Garaas's conduct constituted ethical violations. Garaas contends that his conduct during the hearings did not violate the disciplinary rules, but was merely zealous representation of his client.
[¶23] Garaas argues that his conduct, while perhaps at times impolite, was merely zealous representation of his client. "[A] lawyer is not always protected by following the client's specific directions." In re Boulger, 2001 ND 210, ¶ 27, 637 N.W.2d 710 (Sandstrom, J., concurring). Not every lawyer excess is justified by the mantra of zealous representation.
[¶24] The Comment to N.D.R. Prof. Conduct 3.5 explains:
The lawyer's function is to present evidence and argument so that the cause may be decided according to law. Refraining from abusive or obstreperous conduct is a corollary of the lawyer's right to speak on behalf of litigants. . . . A lawyer can present the cause, protect the record for subsequent review and preserve professional integrity by patient firmness no less effectively than by belligerence or theatrics.
Similarly, the Supreme Court of Minnesota has stated:
Respondent asserts he has a right, indeed an obligation, to represent his clients vigorously, aggressively, and zealously. To be vigorous, however, does not mean to be disruptively argumentative; to be aggressive is not a license to ignore the rules of evidence and decorum; and to be zealous is not to be uncivil.
In re Williams, 414 N.W.2d 394, 397 (Minn. 1987).
[¶25] There is a line of demarcation between zealous representation of a client and unethical conduct.
V
[¶26] Garaas argues the statements he made are protected under the First Amendment and he cannot be sanctioned for exercising his right to free speech. Relying upon Gentile v. State Bar of Nevada, 501 U.S. 1030 (1991), Garaas argues "an attorney may not be disciplined based solely on his/her speech unless such speech becomes so extreme as to become prejudicial to the administration of justice."
[¶27] Garaas has misread Gentile. While the Court concluded that a lawyer's out-of-court speech could be the basis for disciplinary sanctions if it creates a "substantial likelihood of material prejudice" in a pending case, see id. at 1074-75, the Court noted that a lawyer's free speech rights in a courtroom are even more limited:
It is unquestionable that in the courtroom itself, during a judicial proceeding, whatever right to "free speech" an attorney has is extremely circumscribed. An attorney may not, by speech or other conduct, resist a ruling of the trial court beyond the point necessary to preserve a claim for appeal.
Id. at 1071.
[¶28] The First Amendment does not preclude sanctioning a lawyer for intemperate speech during a courtroom proceeding. Addressing Gentile in a disciplinary proceeding, the Supreme Court of Missouri concluded:
An attorney's free speech rights do not authorize unnecessary resistance to an adverse ruling . . . . Once a judge rules, a zealous advocate complies, then challenges the ruling on appeal; the advocate has no free-speech right to reargue the issue, resist the ruling, or insult the judge.
In re Coe, 903 S.W.2d 916, 917 (Mo. 1995).
[¶29] The United States Court of Appeals for the First Circuit, addressing a lawyer's claim of free speech rights in the courtroom, noted:
A courthouse—and, especially, a courtroom—is a nonpublic forum. A courtroom's very function is to provide a locus in which civil and criminal disputes can be adjudicated. Within this staid environment, the presiding judge is charged with the responsibility of maintaining proper order and decorum. In carrying out this responsibility, the judge must ensure "that [the] courthouse is a place in which rational reflection and disinterested judgment will not be disrupted."
Berner v. Delahanty, 129 F.3d 20, 26 (1st Cir. 1997) (citations omitted) (quoting Ryan v. County of DuPage, 45 F.3d 1090, 1095 (7th Cir. 1995)).
[¶30] A lawyer's right to exercise free speech does not permit a lawyer appearing in a judicial proceeding in open court to call opposing counsel a liar, to threaten a judge with personal liability if he rules a certain way, to accuse an appellate court of false misrepresentation, or to engage in a lengthy, disruptive, belligerent, and disrespectful exchange with the court. We conclude that sanctioning Garaas for his statements during the post-judgment proceedings does not violate his right to free speech.
VI
A
[¶31] At the November 7, 2000, hearing, Garaas accused opposing counsel of lying to the court. Disciplinary Counsel argues this conduct violated N.D.R. Prof. Conduct 3.5(b) and 4.4.
[¶32] Rule 4.4, N.D.R. Prof. Conduct, requires that, "[i]n representing a client, a lawyer shall not use means that have no substantial purpose other than to embarrass or burden a third person." Rule 3.5(b), N.D.R. Prof. Conduct, states that a lawyer "shall not . . . engage in conduct intended to disrupt a tribunal." The commentary to Mod. R. Prof. Conduct 3.5(c), which is identical to N.D.R.Prof. Conduct 3.5(b), indicates that, "[a]lthough there is no bright-line rule defining conduct violative of Rule 3.5(c), disruptive conduct is commonly evaluated in light of the totality of the circumstances." American Bar Association Center for Professional Responsibility, Annotated Model Rules of Professional Conduct 343 (3d ed. 1996).
[¶33] Garaas's conduct in accusing opposing counsel of lying to the court was reprehensible. See Johnson v. Johnson, 544 N.W.2d 519, 522 (N.D. 1996). Viewing this conduct in light of the totality of the circumstances, however, we do not conclude there was a violation of N.D.R. Prof. Conduct 3.5(b) or 4.4, and Disciplinary Counsel has not argued the conduct violated other provisions.
B
[¶34] At the January 2, 2001, status conference, Garaas warned the trial judge that he would be placing himself "at risk" if he continued with the proceedings and ordered Garaas's client to sign the deeds. Garaas's statement was a clear threat to sue the judge personally. At the disciplinary hearing, the trial judge testified he perceived Garaas's statements "as a threat to sue me personally" and "viewed it as an attempt to stop or delay the process of the Court's attempt to enforce the judgment." Rule 3.5(a), N.D.R. Prof. Conduct, states that a lawyer shall not "seek to influence a judge . . . by means prohibited by law." A judge must be free to determine cases based upon the evidence and applicable law, without threats of potential personal liability. See N.D. Code Jud. Conduct Canon 3(B)(2). Garaas's threat that the judge was placing himself "at risk" violated N.D.R. Prof. Conduct 3.5(a).
C
[¶35] At the January 5, 2001, hearing, Garaas stated that this Court had "made a false representation of what the issue was" in an earlier appeal. Section 27-13-01(1), N.D.C.C., provides that a lawyer must "[m]aintain respect for courts of justice." As previously discussed, a violation of a lawyer's duty under N.D.C.C. § 27-13-01(1) is sanctionable under N.D.R. Prof. Conduct 8.4(e). While a lawyer is certainly free to register his disagreement with a court's ruling, he must do so without showing disrespect to the court. Garaas's statement that this Court made a "false representation" carries a connotation of intentional wrongful conduct. We conclude Garaas's statement crossed the line beyond criticism to disrespectful assertion of wrongdoing by the Court, and constitutes a violation of N.D.R. Prof. Conduct 8.4(e).
D
[¶36] During the January 5 hearing, Garaas also engaged in the lengthy colloquy with the court in which Garaas repeatedly questioned the court on what basis it was proceeding and accused the court of having ex parte contacts with the Supreme Court. Garaas's conduct can be characterized as disruptive, belligerent, and disrespectful. Rule 3.5(b), N.D.R. Prof. Conduct, provides a lawyer shall not "engage in conduct intended to disrupt a tribunal." Under N.D.C.C. § 27-13-01(1) and N.D.R. Prof. Conduct 8.4(e), a lawyer is also prohibited from engaging in conduct that fails to maintain proper respect for the court. Garaas's conduct was disruptive, belligerent, and disrespectful to the court and violated N.D.R. Prof. Conduct 3.5(b) and 8.4(e).
VII
[¶37] Civility is not too much to expect in a civilized society's alternative to brute force, stealth, and deception. In the final analysis, we will not allow this lawyer to drag to a new low the baseline of acceptable courtroom conduct. Garaas's conduct went beyond acceptable zealous representation and constituted violations of the disciplinary rules.
[¶38] We have determined Garaas violated various disciplinary rules by his conduct at the post-judgment proceedings. The hearing panel ordered that Garaas be publicly reprimanded and that he pay the costs of the disciplinary proceedings. The hearing panel found substantial mitigating factors on Garaas's behalf.
[¶39] We have considered the nature of Garaas's conduct, the multiple violations, Garaas's prior disciplinary record, and the substantial mitigating factors. We conclude that under the circumstances of this case, a public reprimand and payment of costs are appropriate sanctions.
[¶40] We order that Garaas be publicly reprimanded for violating N.D.R. Prof. Conduct 3.5(a), 3.5(b), and 8.4(e). We further order that Garaas pay the costs of the disciplinary proceedings in the amount of $7,312.42.
[¶41] Gerald W. VandeWalle, C.J.
Dale V. Sandstrom
William A. Neumann
Mary Muehlen Maring
James H. O'Keefe, S.J.
[¶42] The Honorable James H. O'Keefe, Surrogate Judge, sitting in place of Kapsner, J., disqualified.
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