Category Archives: Law: Ethics

Congratulations to David O. Marcus for this big win : Pain doctor trial: judge orders government to pay most of M.D.'s legal bills.

Calling the actions of prosecutors “profoundly disturbing,” a federal judge in Miami has ordered the U.S. government to pay sanctions topping $600,000 in the case of a South Florida physician charged with illegally prescribing painkillers.

U.S. District Judge Alan Gold is forcing the government to pay Dr. Ali Shaygan more than half the costs he incurred to defend himself at trial as punishment for secretly recording his defense team.

In a harshly-worded 50-page order, Gold said the “win-at-any-cost behavior” of federal prosecutors Sean Cronin and Andrea Hoffman raised “troubling issues about the integrity of those who wield enormous power over the people they prosecute.”

Kidding aside (I couldn't resist the headline, sorry David), this is a major verdict and an important victory, especially as it comes on the heels of the Stevens case. Two cases isn't a huge sample, but it at least raises the possibility that under the prior administration the Justice Department may have developed problems that go beyond partisanship and involve losing sight of their mission to do justice rather than win at all costs.

YouTube – Eliot Spitzer Resignation

Now, how about family values Senator Vitter – when is he going to resign?

Here are two well-written blog postings that argue Spitzer need not resign:

• Eliot Spitzer: A Dog Bites Man Story?
• Legalizing Prostitution

I'm not persuaded. I don't think Spitzer should be treated worse then the next John, which means he maybe shouldn't be prosecuted and certainly shouldn't go to jail. But that doesn't mean he belongs in the Governor's mansion.

If the facts as we currently know them are true, NY Gov. Eliot Spitzer must resign.

As a general rule, I think that office-holders who commit crimes while in office should not continue to hold that office. (I do take shockingly bold positions, don't I?) This case seems to fall into that general rule. I admit that I have exceptions to my rule. For example, I can imagine excusing some — but only some — crimes involving entrapment, or highly technical and basically harmless violations of complex rules in the context of a good-faith effort to comply, or reliance on reasonable advice of counsel. But this case — from what we know so far — isn't even close to one of those exceptions.

The problem is not infidelity. It's not even the overweening stupidity (“worse than a crime: a blunder”). Nor even the incredible assumption that so many politicians and CEOs seem to have that the rules that apply elsewhere don't apply to them — although that gets close. The problem is that this is criminal behavior. And we really can't define our minimum requirements for public life that low and still hope to get this country out of the ditch.

The charge of “structuring” cash withdrawals seems to me the sort of technical issue I would be inclined to forgive; the suggestions of a Mann Act claim are silly on these facts; but the basic fact remains that hiring prostitutes is a crime. Maybe — maybe — it should be legal. (I don't feel well enough informed as to how 'victimless' a crime this is to have strong views; the expensive market may differ from the street, further complicating matters.) But it's not legal. And I think we must expect basic legality from public officials (and if they don't like the rules, let them lead the charge for better ones). That this particular crime is rarely prosecuted, and even more rarely prosecuted by the feds doesn't change a thing. That Spitzer once trumpeted his office's prosecution of a prostitution ring just adds hypocrisy to the mix.

Even if it this case were shown to be highly selective prosecution of a Democratic Governor by a partisan Justice Department — and we don't at present have nearly enough facts to allow us to reach any conclusions on this question — my conclusion remains firm: if indeed the facts are as we currently know them, then Spitzer must go.

(And so too should Senator David Vitter. And no doubt many others.)

Following Vernon Valentine Palmer's evidence that judges were more likely to rule for parties that had contributed to their election, X-Judge H. Lee Sarokin endorses a mandatory recusal policy for elected judges: “Judges should recuse themselves in cases in which either a lawyer or litigant has contributed to their election.”

Sounds great, right? So if I'm a corporate lawyer (or union lawyer) and think Judge Y leans too far towards unions (or against, as the case may be), all I have to do is make a token contribution to that judge and voila! I've stacked the bench.

The disease is likely real, but this cure is worse than the disease.