Issue 323
February 11, 2005
v
Prosecutor, heal thyself by Fred Kaufman
v
Trials of Some of Hussein’s Aides to Start Within
Weeks; His Is Expected in 2006 by John F. Burns
v
Lawyers’ Groups File Brief Supporting Quattrone Appeal
by Andrew Ross Sorkin
v
Blair apologizes to victims of British court by Ed
Johnson
v
Witness Links Ebbers to Fraud at WorldCom by Ken Belson
v
Appellate Court Backs Companies in Tobacco Case by
Michael Janofsky
v
GMC knew of fears over baby expert by Jamie Dowards
v
Ex-Priest Convicted in Rape of Boy in Boston by Pam
Belluck
v
Preparing prospective witnesses in the Michael Jackson
case by Jonna M. Spilbor
The following article appeared in globeandmail.com on
February 9, 2005:
Prosecutor,
heal thyself
by Fred
Kaufman
The latest
report on the recurring problem of wrongful convictions in Canada and other
parts of the world says little new. Yet it carries particular weight because it
comes not from defence counsel and justice critics, but from prosecutors and
police.
The 151-page document, produced by
a working group chaired by Rob Finlayson, Manitoba's deputy attorney-general,
recommends proactive policies, protocols and educational processes to guard
against future miscarriages of justice -- a working guide for those who
investigate crime and prosecute the accused.
In Canada, four cases of wrongful
conviction (Donald Marshall, David Milgaard, Guy Paul Morin and Thomas
Sophonow) have triggered extensive public inquiries. Britain, Australia and New
Zealand have struggled with this issue. In the United States, Illinois governor
George Ryan declared a moratorium on executions. One of the cases that prompted
his decision was that of convicted murderer Anthony Porter, who came within 48
hours of being executed; Mr. Porter was later cleared by a group of journalism
students who found the real killer. Last week, President George W. Bush
proposed to lessen the danger of wrongful convictions through more DNA testing.
Canada's latest report covers such
familiar problems as eyewitness identification, false confessions, the use of
jailhouse informers, DNA testing, expert testimony and ineffective defence
counsel. Its recommendations, coming as they do from prosecutors and police,
give new hope.
The report raises, but does not
discuss in detail, the question of ineffective defence counsel. As noted U.S.
defence lawyer Barry Scheck and his colleagues point out in their seminal book
Actual Innocence, incompetent defence lawyers have contributed to several U.S. cases
of wrongful convictions. Canada's Marshall commission was critical of Mr.
Marshall's trial counsel, and Canadian courts have, in the past, accepted
inadequate representation as a ground of appeal.
This issue requires further study,
and the report suggests that an important aspect will be to determine "the
responsibilities of Crown counsel when they suspect an accused person may not
be getting effective counsel." It's a delicate matter. I support the
suggestion that "guidelines should be developed to assist prosecutors in
these difficult ethical situations."
Some provinces, including Ontario,
have already put measures in place to guard against wrongful convictions. The
use of in-custody informers or "jailhouse rats," for example, has
been curbed. Let's hope that the current momentum will bring about further
action.
Identifying causes of wrongful
convictions is easier than preventing them. For example, most observers agree
that tunnel vision among police and prosecutors is often a contributing factor
in wrongful conviction cases, and everyone suggests more education as a
solution. But simply providing lectures with no follow-up won't do the trick.
What's needed is commitment, from the top down. The report offers practical
suggestions, such as ensuring that the Crown attorney prosecuting the case is
not the same Crown who advised laying the charge. Where feasible, the report
suggests seeking second, less subjective, opinions and case review.
Its other recommendations to
address tunnel vision, while entirely proper, are difficult to effect. How to
foster "a workplace culture that does not discourage questions"? How
to encourage respect for the "mutual independence" of Crowns and police,
"while fostering co-operation and early consultation to ensure their
common goal of achieving justice"?
These goals are worthy, but, in
the short term, their implementation is wishful thinking.
On the matter of questionable
eyewitness identification and testimony, the report recommends "reasonable
standards and practices," none of which should cause much opposition.
Who'd quarrel with the suggestion that a witness should be advised that the
actual perpetrator may not be in the lineup or photo spread, so as to avoid the
psychological pressure to make an identification that witnesses sometimes feel?
The report devotes much space to
the use of jailhouse informers. Their testimony has been a contributing factor
in several high-profile convictions (the Morin and Sophonow cases in Canada);
it figured in 21 of 130 New York exonerations through DNA evidence. Should
their testimony be banned altogether? In the Morin case, I proposed severe
limitations on their use. The report doesn't suggest an outright ban, but it
urges extreme caution. It also urges that "in-custody informers who give
false evidence should be vigorously and diligently prosecuted." Amen.
More contentious is the
recommendation to expand the existing DNA data bank. This will require further
study because any expansion, while helpful to the police, might also encroach
on guarantees in the Charter of Rights and Freedoms.
As the report notes, more
education is required "on the proper use, examination and
cross-examination of expert witnesses." I'd add that the experts, too,
need training on presenting their evidence in clear, intelligible language, not
subject to misinterpretation by a judge and jury. The Morin case showed the
harm done by an expert who stated that fibres may come from a certain garment
without adding three small but vital words: "or
may
not."
Much of the report deals with the
need for better education. And it should be affordable (good news for federal,
provincial and territorial governments). A national conference on wrongful
convictions, sponsored by Manitoba and the University of Manitoba, will take
place in October. There, and at similar meetings, the report urges the
presentation of case studies, video-linked conferences with speakers (including
the wrongfully convicted), and regular newsletters on miscarriage-of-justice
issues.
One witness told the Morin inquiry
that a wrongful conviction is a prosecutor's worst nightmare. It is also a
stain on society. The report is a step in the right direction. If implemented,
it will give police and prosecutors time in the classroom to learn about
minimizing the danger of wrongful convictions. The final tests, however, will
come in police stations, prosecutors' offices and the nation's courtrooms.
Fred Kaufman, a retired
Quebec appeal-court judge, headed the Commission on Proceedings Involving Guy
Paul Morin and conducted a review of Steven Truscott's application to the
Minister of Justice to reopen his 1959 conviction on a charge of murder.
* * * * *
The
following article appeared in nytimes.com on February 10, 2005:
Trials
of Some of Hussein's Aides to Start Within Weeks; His Is Expected in 2006
By John F.
Burns
BAGHDAD,
Iraq, Feb. 9 - Iraqi officials say that the long-awaited legal reckoning for
Saddam Hussein and his associates will begin this spring with televised trials
for at least two of the top 12 government members in American military custody,
and that prosecutors will demand the death penalty for those judged guilty of
the worst crimes.
One of the
first men to be tried will be a cousin of Mr. Hussein's, Ali Hassan al-Majid,
known as Chemical Ali for his role in poison-gas attacks that killed thousands
of Iraqi Kurds in the late 1980's, officials say.
Another will
be Barzan al-Tikriti, a half brother of Mr. Hussein's, who served early in his
rule as deputy head of the secret police. Officials say the most serious charge
against him will involve ordering the razing of a Shiite village north of
Baghdad, and the killing of scores of men there, after a failed assassination
attempt against Mr. Hussein in 1982.
Nearly two
years after American troops captured Baghdad, twin courtrooms built for the
trials in Baghdad's heavily guarded Green Zone are nearly ready, and
investigating judges are close to completing dossiers summarizing the evidence
for the first cases, officials say.
Although
American legal experts have helped prepare the cases, the trials will be
conducted before a special Iraqi tribunal, not before an international court of
the kind set up in The Hague for the former Yugoslavia.
The Iraqi
officials, speaking on condition they not be identified, say Mr. Hussein will
not go on trial until the cases against his principal associates have been
completed, perhaps not until well into next year.
Bakhtiar
Amin, the human rights minister, said in an interview that court officials
would use the cases against Mr. Hussein's associates to establish "command
responsibility" for the atrocities committed under his rule, building
evidence tying him to decisions that led to the deaths of hundreds of thousands
of Iraqis.
Mr. Hussein,
who is in solitary confinement at Camp Cropper, the American military detention
center near Baghdad's airport, has been meeting recently with lawyers appointed
by his family, according to a Western legal expert who discussed the trials on
Wednesday. Captured by American troops in December 2003 near his hometown,
Tikrit, Mr. Hussein became eligible for legal representation after a brief
court appearance last July with the other 11 top leaders. But Iraqi officials
said it was months before any Iraqi lawyers made formal bids to represent him.
Now, the
legal expert said, Mr. Hussein has 10 Iraqi lawyers and as many as 25 foreign
lawyers, any of whom will have the right to join his legal team at trial.
Mr.
Hussein's wife, Sajida, fled Iraq before the American invasion with two
daughters and took up residence in a lavish mansion in the Jordan.
Her
spokesmen have said that she has appointed lawyers from Belgium, Britain,
France, Jordan, Lebanon and Tunisia, among other countries, and that they will
challenge the legitimacy of the special tribunal to try Mr. Hussein, arguing
that his actions as president were covered by his immunity as head of state.
The Western
legal expert, who has been closely involved in preparing the cases, said all 12
prisoners had been meeting regularly with lawyers. He said the meetings were
not held in the presence of American guards, and that there were no constraints
on what was discussed.
Previously,
Iraqi officials had said the detainees were not allowed access to radio,
television or newspapers, severely limiting their knowledge of developments in
Iraq.
Asked if the
meetings raised the possibility that the lawyers could act as couriers for
messages from Mr. Hussein and the other detainees to the armed groups that have
spread a wide insurgency across Iraq, the expert said it could not be ruled
out.
"It's
possible, but how do you stop that?" he said. "There have to be some
sacrosanct aspects to the attorney-client privilege."
The expert,
guarding his anonymity partly to ensure a low profile for the role play in the
tribunal by Western advisers, set out a schedule for the first trials that
suggested that it could be summer before proceedings reach the point where the
tribunal begins to hear in detail of the brutalities inflicted under Mr.
Hussein.
Before the
trials can begin, he said, a team of 400 Iraqis working for the tribunal -
backed by 50 mainly American lawyers and investigators in a support group known
as the Regime Crimes Liaison Office - must hand in dossiers outlining the
evidence against defendants to the five-judge panels that will preside at the
trials. Investigators have spent much of the past year sifting through tons of
seized documents, interviewing witnesses and reviewing evidence gathered by
forensic teams from at least 12 mass graves.
The transfer
of the dossiers to the tribunal, called a referral, will come within the next
few weeks, the expert said. Then the judges will set a trial date, probably
quite promptly, he said.
Some lawyers
involved have already said that when the trials begin, they will argue that the
court is illegal because it was set up by the American occupation authority
last year, before Iraq resumed formal sovereignty. That issue would go to a
nine-judge Iraqi appellate court, which would have to rule before the trials
could proceed, the expert said.
Arrangements
have been made for television relays to carry the trials live to Iraqi and
worldwide audiences, according to the expert. He said the courtrooms would
include seating for reporters and a public gallery to which ordinary Iraqis will
be admitted first come first served.
Security
will include screens or curtains to protect witnesses unwilling to be seen in
open court. Although courts are in the Green Zone, a maze of checkpoints manned
by Iraqis and Americans has already been set up.
One of Mr.
Hussein's top associates is not likely to be tried because of his health
problems, the Iraqi officials say. He is Muhammad Hamza al-Zubaydi, Mr.
Hussein's prime minister after he seized power in 1979 and opened a bloody
purge of the governing Baath Party. Mr. Zubaydi, in his late 60's, is the
oldest of the 12 Camp Cropper detainees. Officials say he is suffering from
severe heart trouble that traces back to two bypass
operations
before Mr. Hussein's ouster, and that American doctors treating him do not
expect him to recover.
Mr. Zubaydi
has been under investigation for his role in the purge, which involved the
execution of dozens of people shortly after Mr. Hussein declared himself
president.
The Iraqi
officials say some detainees have tried to win their freedom or avoid the death
penalty by promising cooperation.
Early in the
tribunal's existence, officials said two of those willing to give evidence
against Mr. Hussein was Tariq Aziz, a former deputy prime minister, and Sultan
Hashem Ahmed, defense minister during the American-led invasion in the spring
of 2003. Mr. Hashem was the general who met with American commanders on Iraq's
border with Kuwait in March 1991 to sign terms ending the Persian Gulf war.
These overtures
took on new significance when Ayad Allawi, the former Baathist serving as
interim prime minister, moved to control the court by dismissing senior
tribunal officials and appointing his own loyalists. One of those dismissed,
Salem Chalabi, the tribunal's director, said Dr. Allawi wanted to free some
defendants, or lessen the charges against them, to form a lever with other
former Baathists active in the insurgency. Dr.
Allawi has
acknowledged meeting secretly with such men in efforts to break the tide of
war.
But Mr.
Amin, the human rights minister, said there would be no compromise in the case
of Mr. Aziz, who was Iraq's main diplomatic emissary for at least 15 years
before Mr. Hussein's overthrow.
Mr. Amin, a
Kurd, said Mr. Aziz, a Christian, was deeply implicated in Mr. Hussein's crimes
against Iraq's Kurdish minority, and in particular in the killing of thousands
of Kurdish Christians. "I am opposed to anyone with blood on his hands,
and who has been involved in genocide and other atrocities, being
released," Mr. Amin said.
One concern
has been that Mr. Hussein could try to use his court appearances to as a
political platform, in the way that Slobodan Milosevic, the former Yugoslav
president, has done in years of testimony at The Hague. At his brief court
appearance last July, Mr. Hussein described the Kuwait invasion in 1990 as a
just assertion of Iraq's national interest and condemned the American
occupation. He claimed he was still Iraq's lawful president, and told the judge
that he should be ashamed of himself for dishonoring his country's leader.
But the
Western legal expert said Iraqi court procedures, based on civil law, should
prevent attempts to turn the proceedings into political theater. First, he
said, the defense will be handled by lawyers, and not, as in Mr. Milosevic's
case, by the defendant. Beyond that, the wide powers granted to the judges to
select witnesses and direct prosecution and
defense
lawyers, as well as the absence of the adversary system used in American trials,
would make the tribunal's hearings "more expeditious" than the
tribunal in The Hague.
"You're
not going to see a Johnnie Cochrane cross-examining somebody in the manner of
the O. J. case," he said.
* * * * *
The
following article appeared in nytimes.com on February 10, 2005:
Lawyers'
Groups File Brief Supporting Quattrone Appeal
By Andrew
Ross Sorkin
Several
associations of public defenders and criminal lawyers have filed a brief in
support of Frank P. Quattrone's appeal to overturn his conviction and have the
case retried.
The brief
condemns the judge who oversaw Mr. Quattrone's trial and calls him
"biased," in a rare instance of these organizations taking such a
strong stance against a sitting judge.
Mr.
Quattrone, a former technology investment banker at Credit Suisse First Boston,
was convicted in September of obstructing justice by sending an e-mail message
to his staff endorsing a colleague's instructions to "clean up those
files," days after he learned of an investigation into the bank's
allocation of hot stock offerings.
The brief,
filed this week by the National Association of Criminal Defense lawyers, the
New York State Association of Criminal Defense Lawyers and California Attorneys
for Criminal Justice, said the organizations felt compelled to support Mr.
Quattrone's appeal because the judge, Richard W. Owen, appeared to tip the
scales of justice by favoring the prosecution through his rulings.
"This
is unusual for us, but this situation was unusually egregious," said Barry
Scheck, president of the National Association of Criminal Defense Lawyers.
"This was the equivalent of a judicial mugging. And if this can be done to
Frank Quattrone - a person with means - it can be done to anybody."
Judge Owen
sentenced Mr. Quattrone to begin an 18-month sentence in October, but the
United States Court of Appeals for the Second Circuit ruled that he could
remain free pending appeal.
Last month,
Mr. Quattrone filed an appeal challenging the prosecution's case and taking issue
with Judge Owen's rulings, which Mr. Quattrone's lawyers argued prevented them
from presenting certain evidence.
"The
evidence against Quattrone was not simply thin, but legally insufficient,"
his appeal said. "Even if the evidence were not plainly insufficient, the
conviction cannot stand because it resulted from a palpably unfair trial."
The brief
filed by the legal organizations this week cited several examples of points in
Mr. Quattrone's trial when Judge Owen appeared to unfairly favor the
prosecution by asking questions of witnesses on behalf of prosecutors,
objecting to questions by the defense even when the prosecution did not object
and repeatedly interrupting the defense.
"It is
not any particular aspect of the trial court's conduct, but rather the
accumulation of the instances in the record," the organizations wrote in
their brief.
Through his
law clerk, Dustin Osborn, Judge Owen declined to comment.
In addition
to citing portions of the trial's transcript, the brief also noted several
newspaper articles from the trial that described Judge Owen's combative
relationship with the defense lawyers, including articles from The New York
Times and The Wall Street Journal.
* * * * *
The
following article appeared in thestar.com on February 9, 2005:
Blair
apologizes to victims of British court
Confessions
coerced, evidence suppressed in terror conviction
by Ed
Johnson
LONDON - British Prime Minister Tony Blair issued a public apology
today to members of two families whose wrongful imprisonment for IRA bombings
three decades ago was dramatized in the film In the Name of the Father.
Members of the Conlon and
Maguire families were jailed in connection with Irish Republican Army bombings
in Guildford and Woolwich in England in 1974. The attacks killed seven people
and injured more than 100.
Eleven people convicted in
connection with the attacks were subsequently acquitted, and the case is
regarded as one of Britain's biggest miscarriages of justice.
"I am very sorry that
they were subject to such an ordeal and injustice," Blair said in a
statement. "The Guildford and Woolwich bombings killed seven people and
injured over 100. Their loss, the loss suffered by their families, will never
go away. But it serves no one for the wrong people to be convicted for such an
awful crime."
Gerry Conlon was one of four
people found guilty of two IRA bombings of Guildford pubs on Oct. 5, 1974,
which killed five people and wounded 54.
During his interrogation,
Conlon implicated seven others as alleged bomb-makers, including his own
father, Guiseppe, who died in prison in 1980. Conlon says police coerced false
confessions by beating and disorienting him.
Gerry Conlon and three
others were acquitted on appeal in 1989 after authorities concluded their
confessions to police had been fabricated and forensic evidence favourable to
their defence had been suppressed.
The other seven, including
Guiseppe Conlon, were acquitted in 1991, long after they had served their
sentences, when the forensic evidence used to convict them was discredited.
The 1993 film dramatizing
the case earned seven Oscar nominations. Daniel-Day Lewis portrayed Gerry
Conlon and Pete Postlethwaite portrayed Guiseppe Conlon.
Last month, Gerry Conlon
demanded a formal apology from Blair for his imprisonment, calling it "a
dreadful miscarriage of justice."
"It is a matter of
great regret when anyone suffers a miscarriage of justice," Blair said in
today's statement. "I recognize the trauma that the conviction caused the
Conlon and Maguire families and the stigma which wrongly attaches to them to
this day.
"I am very sorry that
they were subject to such an ordeal and such an injustice. That's why I am
making this apology today. They deserve to be completely and publicly
exonerated."
Blair set a precedent for such apologies soon after taking
office in 1997, when he offered a statement of regret for British policy during
the 1845-1852 potato famine, during which one million people died in Ireland
and another two million fled to Britain or North America.
Blair's gesture today came
during the latest deadlock in Northern Ireland's long-running peace process and
with pressure mounting on Sinn Fein, the IRA-linked party, over the outlawed
group's alleged $62.5-million (Canadian) robbery of a Belfast bank - the
biggest cash theft in history.
Irish Prime Minister Bertie
Ahern has said he believes the IRA committed the Dec. 20 raid on Northern Bank
and that senior figures in Sinn Fein authorized it. The IRA has denied
involvement, and police have made no arrests and recovered none of the cash.
* * * * *
The
following article appeared in nytimes.com on February 8, 2005:
Witness
Links Ebbers to Fraud at WorldCom
By Ken
Belson
The star
witness in the prosecution's case against Bernard J. Ebbers, the former chief
executive of WorldCom, took the stand yesterday and directly connected Mr.
Ebbers to the accounting fraud that brought down the company in 2002.
"Bernie
had a grasp of financial information that surpassed the level of chief
operating officers and even some chief financial officers at companies we were
acquiring," the witness, Scott D. Sullivan, WorldCom's former chief
financial officer, said in Federal District Court in Manhattan.
The
testimony of Mr. Sullivan countered arguments by the defense that Mr. Ebbers
was incapable of understanding complex accounting and incapable of
orchestrating a fraud. His testimony is crucial to the government's case
against Mr. Ebbers, who is accused of conspiracy, securities fraud and filing
false statements with regulators.
He is the
first witness in the trial to directly link Mr. Ebbers to the fraud, the
largest in United States history. In the first two weeks of the trial, other
witnesses detailed how they took part in the fraud, but they did not say
definitively that Mr. Ebbers took part.
Mr.
Sullivan, who has already pleaded guilty to his role in the $11 billion fraud,
said he was in constant contact with Mr. Ebbers during the 10 years they worked
together. He has agreed to testify in exchange for consideration on his
sentence.
Mr. Ebbers
paid careful attention to Wall Street's expectations of WorldCom, Mr. Sullivan
said. Prosecutors contend that Mr. Ebbers was concerned because if the company
failed to meet its own and analysts' forecasts, its share price would suffer
and his personal fortune - much of it tied to WorldCom's stock - could be wiped
out.
During his
90 minutes on the stand, Mr. Sullivan told federal prosecutors that he carried
out the fraud with the consent of Mr. Ebbers.
"I
falsified the financial statements of the company," Mr. Sullivan said,
"to meet analysts' expectations."
When asked
by William F. Johnson, an assistant United States attorney, who else was involved
in illegally adjusting the company's financial statements, Mr. Sullivan listed
Mr. Ebbers and four managers who reported to Mr. Sullivan.
"I had
a lot of interaction with Bernie on accounting issues," Mr. Sullivan said
later. "These are not simple but complex issues."
Defense
lawyers contend that Mr. Ebbers, 63, was unaware of the fraud and was more
focused on the company's overall strategy, not the particulars of its
accounting. They have sought to portray Mr. Ebbers as someone who consistently
relied on Mr. Sullivan's facility with numbers and his ability to handle
questions from analysts about the specifics of the company's performance.
The
government, however, tried to dispel that argument in its questioning of Mr.
Sullivan, who spoke directly to jurors and appeared to avoid looking at Mr.
Ebbers, who sat motionless and with a furrowed brow for much of the testimony.
Prosecutors
asked Mr. Sullivan at length about the role of Mr. Ebbers in the day-to-day
running of WorldCom and about his level of sophistication when it came to
analyzing financial statements.
"From
the time I met him in 1992, he was not an accountant," Mr. Sullivan said.
"But he had a good grasp of accounting issues."
The two men
often discussed reports issued by Wall Street analysts, Mr. Sullivan said,
particularly those that lowered or raised their rating on WorldCom's stock.
On occasion,
Mr. Sullivan said he would visit Mr. Ebbers's office, which he said was filled
with financial records and other files. He recalled how Mr. Ebbers would point
to specific items on WorldCom's financial reports that he had circled with a
yellow highlighter pen.
Mr. Sullivan
said Mr. Ebbers was a "very hands-on" chief executive who dealt with
"everything from little things to big things." He recounted how Mr.
Ebbers could negotiate complex deals to buy rivals, but also rail against the
use of coffee filters that he believed were wasteful.
"His
focus was on growing revenue and cutting costs," Mr. Sullivan said.
The two men
appeared to be inseparable. Mr. Sullivan said they had a "very close"
relationship in the 1990's, when they worked to buy several rival
telecommunication companies.
Mr. Sullivan
said he met with Mr. Ebbers about a half-dozen times a day; their offices were
next door to each other. They often ate lunch together and even took their
wives to dinner together on Valentine's Day, he said. The two men frequently
traveled together, visiting cities throughout the United States, Europe, China
and even Cuba.
Mr. Sullivan
also described Mr. Ebbers as moody and as someone who tried to control
conversations and bully subordinates. At one point, Mr. Johnson asked Mr.
Sullivan whether he was afraid of Mr. Ebbers.
"He can
be very intimidating," he said.
After the
prosecution finishes questioning Mr. Sullivan, the defense is expected to
attack his motivation for testifying against his former boss. Prosecutors tried yesterday to take some of
the sting out of that potential argument. In answer to questions from Mr.
Johnson, Mr. Sullivan said he understood that there was no guarantee that his
sentence would be reduced if he cooperated with the government.
They also
asked Mr. Sullivan about his previous use of marijuana and cocaine, his salary,
stock options and $10 million bonus, and his $15 million home in Florida, which
he may lose.
The bulk of
their questions of Mr. Sullivan were intended to portray Mr. Ebbers as a
hands-on manager with intimate knowledge of every decision of consequence in
the company he led for nearly two decades.
* * * * *
The
following article appeared in nytimes.com on February 5, 2005:
Appellate
Court Backs Companies in Tobacco Case
By Michael
Janofsky
WASHINGTON,
Feb. 4 - A federal appeals court delivered a major victory to the nation's
leading tobacco companies on Friday, ruling that the government cannot force
them to turn over $280 billion in profits if a trial court finds that the
companies engaged in a conspiracy of fraud and deceit to promote smoking.
The 2-to-1
decision by the United States Court of Appeals for the District of Columbia
strikes at the heart of the government's biggest legal effort ever to punish
cigarette makers.
It reverses
a ruling by Judge Gladys Kessler of Federal District Court, who agreed with the
government that the giving up of profits, or disgorgement, was a suitable
remedy under federal civil racketeering law. Testimony in the trial continued
while an appeal of that ruling was heard.
In writing
the majority opinion for the appeals court, Judge David B. Sentelle found that
the 1970 Racketeer Influenced and Corrupt Organizations Act, or RICO, the law
under which the Justice Department sued, does not allow the government to
recover illegal profits as a way to prevent and restrain future violations.
The law,
Judge Sentelle wrote, only provides remedies intended to prevent future
violations, like an injunction that blocks certain behavior or the dissolution
of a corporation. Forcing the tobacco industry to give up profits, he continued,
"is a quintessentially backward-looking remedy focused on remedying the
effects of past conduct to restore the status quo."
The
requirement that companies give up profits might be acceptable under the
criminal section of the RICO act, which has far higher burdens for proving
culpability, Judge Sentelle wrote, but not under the civil section, which the
government used in the lawsuit.
He was
joined by Judge Stephen F. Williams; both judges were appointed by President
Ronald Reagan.
In a
dissenting opinion, Judge David S. Tatel, who was appointed by President Bill
Clinton, said Judge Kessler had properly ruled the companies could be forced to
give up their profits. He said that evidence in the case had shown that forcing
the companies to relinquish profits would, in fact, "prevent and
restrain" them from committing future
violations
because they would know to expect severe penalties for repeating such conduct.
The majority
decision has no immediate effect on the trial, which is expected to last well
into spring. Should Judge Kessler, who is deciding the case without a jury,
ultimately rule for the government on the merits, she could still hold the
companies accountable by requiring them to finance stop-smoking and education
programs or to change advertising and marketing strategies, rulings that could
still cost the companies many millions of dollars.
But the
appeals court ruling, for now, eliminates the government's biggest potential
financial threat to the tobacco industry from the case. That is the
government's calculation of $280 billion in profits it estimates that the
industry garnered from cigarettes smoked from 1971 to 2000. Lawyers for the
tobacco companies had contended that being forced to disgorge so great a sum
could have driven some companies into bankruptcy.
The stocks
of tobacco companies surged after the ruling. Shares in the Altria Group, the
parent company of Philip Morris USA, jumped $3.26, or 5.1 percent, to $67.
Shares in Reynolds American rose $3.69, or 4.5 percent, to $85.60, while
British American Tobacco added 75 cents, or 2.1 percent, to $36.15.
It is
unclear what the government intends to do next. It can request a review of the
decision by the entire appeals court or an appeal to the Supreme Court. Justice
Department officials said that any decision would be made by the new attorney
general, Alberto R. Gonzales, who was confirmed by the Senate on Thursday.
Kimberly
Smith, a spokeswoman for the Justice Department, said government lawyers were
reviewing the ruling and would have no immediate comment.
Lawyers for
Philip Morris USA, the biggest company in the case, declined to comment beyond
acknowledging the court decision.
David M.
Bernick, a lawyer for Brown & Williamson, now part of Reynolds, the second-largest
tobacco company, said : "Obviously, we're pleased with the decision.
What's happened is that an enormous piece of noise that never should have been
there has been eliminated, and the case can now properly focus on whether or
not we are doing something we shouldn't be doing."
"The
threat of a Draconian monetary award was something we could not ignore,"
Mr. Bernick added. "But it was an improper threat."
The sum the
government sought from the tobacco companies made this the biggest lawsuit they
had ever faced, surpassing even the series of actions filed by the states'
attorneys general that led to a combined settlement of $246 billion in 1998.
Those were essentially product-liability cases in which states were seeking to
recoup medical costs from treating patients who suffered from the adverse
effects of smoking.
The
conspiracy case was a novel approach for the government, which had first sued
to recover federal health-care costs. When that approach was rejected, the
government turned to racketeering laws, trying to prove that the companies
worked in partnership for more than 50 years to sell their products by denying
the health consequences of smoking, manipulating the level of nicotine to
maintain addiction and marketing products to children.
Government
lawyers have tried to show that the companies are still acting in bad faith
despite their assertions that they have altered their behavior by measures like
admitting that smoking causes health problems and eliminating marketing efforts
to children.
The case was
filed in 1999 during the Clinton administration, and it was pursued through
President Bush's first term, at a cost of $135 million before opening arguments
last September. Since then, scores of witnesses have testified, and the
government still has, perhaps, another month of witnesses before the companies
begin their defense.
Through the
weeks of trial testimony, the issue of disgorgement hung over the proceedings.
Now that it has been removed - for the time being, anyway - government lawyers
may have to shift their focus to convince Judge Kessler that there are other
ways to punish the companies if she rules for the government.
William V.
Corr, executive director of the Campaign for Tobacco-Free Kids, a nonprofit
group that has fought cigarette companies for years, expressed disappointment
over the appellate ruling but said in a statement that the options open to
Judge Kessler still "hold the greatest potential for reducing the death
and disease caused by tobacco use."
Mr. Corr
also urged the Justice Department to resist any request by the companies to
settle the case, a possibility that company lawyers said they would consider if
disgorgement was no longer a factor in the case.
"Today's
ruling," Mr. Corr said, "should not be an excuse to let the tobacco
industry off the hook for the wrongful practices that are the basis of the
lawsuit."
Dean Richard
A. Daynard of the Northeastern University Law School in Boston, a longtime
industry critic, said tobacco opponents were initially skeptical of the Bush
administration's commitment to the suit. But Dean Daynard said he believed that
the administration would appeal the ruling and continue to press the case.
* * * * *
The
following article appeared in Guardian.co.uk on February 6, 2005:
GMC
knew of fears over baby expert
Email
reveals complaints before Meadow had women wrongly jailed
by Jamie
Dowards, social affairs editor
Senior General Medical Council officials
knew of serious concerns about the paediatrician, Professor Sir Roy Meadow,
before he gave evidence which led to at least two mothers being wrongfully
jailed for murder.
In a development that will raise fresh
concerns about the GMC's ability to regulate the medical profession in the
interests of patients, emails obtained by The Observer show that the
organisation had discussed a series of complaints against Meadow in February
2000.
Three years later, in 2003, Trupti Patel
and Angela Cannings were freed by the Court of Appeal after judges ruled that
their convictions - secured largely on the strength of Meadow's prosecution
evidence and professional expertise - were unsafe. Cannings was sentenced in
2002 and Patel the year after. Meadow, now discredited, faces being struck off
if he is found guilty of gross professional misconduct at a GMC inquiry later
this year.
An email sent by the then head of the
GMC's Fitness to Practise department, which investigates complaints made
against doctors, reveals the watchdog delayed discussing the concerns with the
Royal College of Paediatrics and Child Health (RCPCH).
The internal memo, sent by Isabel Nisbet
on 28 February to a colleague within the department, states: 'I realise that
the RCPCH have been trying to contact me for some weeks ... I fear that I shall
need to be brought up to speed on the issues regarding Prof Meadow. Could you
please add it to the list for the next "high profile cases" meeting?'
The 'issues' referred to were a series
of complaints made by parents and the Labour MP for Putney, Tony Colman, that
Meadow was providing evidence in court cases that was outside his field of
expertise.
Last night campaigners on behalf of the
three women expressed shock that the GMC was aware of concerns about Meadow as
early as 2000.
'I find it deeply worrying that the GMC
were aware in 2000 of at least one complaint about Professor Meadow's alleged
lack of expertise when giving evidence in court,' said Penny Mellor, of the
campaign group Dare to Care. 'One has to wonder whether or not the cases of
Cannings and Patel, and possibly a number of others, would have been prosecuted
had they taken decisive action at that time.'
The revelation is likely to raise further
questions about the GMC's ability to investigate allegations against doctors.
Last year the Shipman inquiry, which investigated how the GP Harold Shipman was
able to murder hundreds of his patients, accused the GMC of favouring the
interests of its members.
Dame Janet Smith, who headed the
inquiry, said the GMC had 'to a very significant degree acted in the interests
of doctors'.
Last week Donna Anthony, who was jailed
for life in 1998 for murdering two of her children, partly on the strength of
Meadow's expert testimony, was given leave to appeal.
Meadow's evidence was also crucial in
securing the conviction of Sally Clark in 1999 for murdering her two children.
Clark's conviction was quashed in 2003.
Meadow's 'law' - that one child death is
a tragedy, two suspicious and three murder - was shown to be fundamentally
flawed in the Court of Appeal.
Experts on Sudden Infant Death Syndrome
have subsequently pointed out that multiple deaths of siblings are far more
common than Meadow maintained.
After Cannings was released, the
Attorney General, Lord Goldsmith, announced a review of almost 300 criminal
cases where mothers had been jailed on the strength of evidence presented by a
single scientific expert.
In addition, local authorities were
ordered to examine thousands of civil cases where parents had been forced to
give up their children for adoption after being accused of abuse by
paediatricians.
Hopes that some parents may now be
reunited with their children look set to take a dramatic turn. The Observer
understands that the Legal Services Commission is prepared to fund legal action
by parents seeking to have the adoption rulings overturned.
A spokeswoman for the GMC said it had a
policy of not commenting on specific or ongoing cases. Professor Meadow, who is
now retired, was unavailable for comment.
* * * * *
The
following article appeared in nytimes.com on February 8, 2005:
Ex-Priest
Convicted in Rape of Boy in Boston
By Pam
Belluck
CAMBRIDGE,
Mass., Feb. 7 - Paul R. Shanley, a defrocked priest who became a lightning rod for the sexual abuse
scandal in the Roman Catholic Church, was convicted on Monday of raping and
assaulting a boy when he was a parish priest in suburban Boston in the 1980's.
Mr. Shanley,
74, was one of the few priests to face criminal charges in the scandal, and his
conviction came in a case in which prosecutors relied almost solely on one
accuser, who said he had repressed the memory of the abuse until reading a
newspaper article about Mr. Shanley three years ago.
After
deliberating for nearly 15 hours beginning last Thursday, the jury of seven men
and five women pronounced Mr. Shanley guilty of two counts of rape and two
counts of indecent assault on a child. Judge Stephen A. Neel of Middlesex
Superior Court revoked Mr. Shanley's bail and scheduled him to be sentenced on
Feb. 15. He could face up to life in prison.
"It was
very difficult," said one juror, Victoria Blier, 53, of Lexington.
"There was no DNA, there was no direct corroboration, and that made it
very difficult."
Ms. Blier,
who owns a window treatment business, said the jury was persuaded by the
prosecutor's argument that the accuser was credible because he had no selfish
reason to pursue the criminal case since he had already received $500,000 in
the settlement of a civil lawsuit against the church.
"I
think the one central idea that seemed to be the most compelling to the most
people was that the victim had nothing to gain by pursuing the criminal trial
and everything to lose, because it was extremely painful,"
Ms. Blier
said. "We tried to, but no one could come up with a convincing reason for
why he would pursue this except for a sincere need for justice. He could walk,
he could say, 'Listen, this is going to be too hard on my family,' and, 'Sorry,
but I'm not going to pursue this' and no one would fault him."
As the
verdict was read, Mr. Shanley stood straight and betrayed little emotion. His
accuser, who spoke publicly about his accusations over the last three years but
asked news organizations not to name him during the trial, stood in the first
row, rocking back and forth with tears in his eyes and a smile on his face.
Now a
27-year-old firefighter, the accuser testified that Mr. Shanley would pull him
out of Christian doctrine class beginning when he was 6 years old, and would
orally and digitally rape him in the bathroom, the pews, the confessional and
the rectory of St. Jean's Parish in Newton.
Mr.
Shanley's lawyer, Frank Mondano, had argued that what Mr. Shanley was accused
of was logistically impossible given the layout and crowded nature of the
church on Sunday mornings. Mr. Mondano also argued that the accuser had
concocted the charges in order to prevail in his civil suit against the church.
The jury
asked only one question of the judge during deliberations, requesting to see a
journal that the accuser kept after he says he recovered his memories of abuse.
The judge denied the request because although parts of the journal had been
read at trial, the journal itself had not been entered into evidence.
Mr. Mondano
said he would appeal and asserted that the prosecution's case was strikingly
weak.
The
prosecutors said Monday that they recognized what a difficult case they had to
prove. The case had started with allegations from four accusers, at least three
of whom were friends and classmates at St. Jean's. But before the trial
started, charges relating to three of the accusers were dropped.
Midway
through the trial, Judge Neel threw out a fifth charge against Mr. Shanley,
involving allegations that he forced the accuser to perform oral sex on him.
Then, in instructions to the jury, Judge Neel said there had been no direct
evidence to support one of the accuser's central claims, that he had repeatedly
been taken out of class.
"This was a tough case," Martha Coakley, the Middlesex district attorney, said after the verdict. "We know that there were several roadblocks in this case. They were many and they were obvious."<