© 2004 Lang Baker
Neal v StateNovember 17, 2004No. 1559-03 Majority opinion by Judge Cochran Link to Dissenting opinion by Judge Womack
After a court trial, a judge found appellant guilty of possession of a deadly weapon in a penal institution and sentenced him to six years' imprisonment. The court of appeals reversed this conviction and ordered the case dismissed. It concluded that appellant's prosecution-which came after he filed a federal civil-rights suit-raised a presumption of vindictiveness that the State did not overcome at trial. (1) The State asks whether the court of appeals erred by reversing the trial court's judgment on a theory of prosecutorial vindictiveness when that theory was never properly presented to the trial court. (2) We hold that it did err when it reversed the trial court's judgment on a basis never pleaded, proved, or ruled upon in the trial court. We therefore reverse the court of appeals and affirm the judgment of the trial court.
During the summer of 1998, appellant was in the Rusk County jail awaiting trial on charges of forgery and burglary of a habitation. On June 16, 1998, the local jailers caught him with a homemade weapon-a toothbrush sharpened into a stabbing instrument-which he had secreted in his boxer shorts. On July 17, 1998, appellant pleaded guilty, pursuant to a plea bargain, to both the forgery and burglary charges. On September 9, 1998, he was indicted for possession of a deadly weapon in a penal institution, stemming from the June 16th incident. Appellant filed a federal civil-rights lawsuit against Rusk County on May 20, 2000, alleging mistreatment in the jail. Before trial in the civil-rights suit, appellant and the State negotiated a plea bargain for a two-year sentence on the pending weapons charge. Appellant-who was by then in prison serving his burglary sentence-was bench-warranted back to Rusk County for a plea on the weapons charge. But before that plea hearing could take place, Rusk County officials returned appellant to prison because they learned he was HIV positive. Thus, on November 17, 2000, the State dismissed the weapons charge with a notation that "[t]he defendant was convicted in another case." On February 28, 2001, the federal district court conducted a one-day trial on appellant's civil rights suit. Appellant testified and admitted that he had possessed the homemade weapon in the Rusk County jail. No ruling was made on that date in the federal trial. On March 6, 2001, six days after the federal hearing, the State-at the behest of the Rusk County Sheriff's Office, which had first learned about the dismissal of the weapons charge at the civil-rights trial-re-indicted appellant on the weapons charge. (3) Appellant learned on April 18, 2001, that the federal district judge had awarded him a $6,000 judgment against Rusk County in the civil-rights suit. (4) The State declined to re-offer its original two-year plea bargain on the weapons case. After the trial court denied his pretrial motions (none of which claimed prosecutorial vindictiveness), appellant waived a jury and requested a court trial. After hearing the State's evidence, the trial court found appellant guilty. At the punishment hearing, the State put on evidence of: 1) appellant's previous forgery and burglary convictions; 2) appellant's penitentiary packet, which listed four other convictions-one robbery, two burglaries, and one unauthorized use of a motor vehicle; and 3) letters appellant wrote to his girlfriend while in the Rusk County jail in which he asked for her assistance in smuggling a handgun into the jail so he could escape and in obtaining documents to create a new identification after he escaped. The defense presented evidence that, before trial on the federal civil-rights case, the State and appellant had negotiated a plea bargain for a two-year sentence, but that the State was unwilling to re-offer that bargain after the federal trial. The defense characterized the re-indictment as unfair and retaliatory and asked the trial court to assess the original agreed-to two-year sentence. Appellant's attorney, in closing, stated: "Now, this man here, I think to resolve this issue, he's in agreement, his sister's in agreement, I'm in agreement, punish him with the original two years that everybody thought was right." In its closing, the State asked the court "to review all of the evidence that was introduced today, review the seriousness of the crime, review his criminal record and issue the appropriate sentence." The trial court assessed punishment at six years in prison. In his brief to the court of appeals, appellant alleged, for the first time, that his conviction should be reversed and the case dismissed because it "was in violation of his rights under the Due Process Clause of the Fourteenth Amendment because of prosecutorial vindictiveness." He stated that "[t]he prosecutor in this case acted in bad faith and maliciously by re-indicting [him] a second time" and that "there was no other reason except for revenge and retaliation for the prosecutor to pursue a second indictment." The court of appeals agreed and held that the sequence of events ("the State dismissed Neal's charge completely, the civil suit was heard, and then the State re-filed the same charge") raised a presumption of vindictiveness and that there was no evidence in the trial record to overcome it. (5) It reversed the trial court's judgment and dismissed the indictment. Both Texas and federal courts recognize that prosecutors have broad discretion in deciding which cases to prosecute. Thus, "[i]f the prosecutor has probable cause to believe that the accused committed an offense defined by statute, the decision whether to prosecute and what charge to file generally rests entirely within his or her discretion." (6) Courts must presume that a criminal prosecution is undertaken in good faith and in nondiscriminatory fashion to fulfill the State's duty to bring violators to justice. (7) Nevertheless, a decision to prosecute violates due process when criminal charges are brought in retaliation for the defendant's exercise of his legal rights. (8) Thus, the Supreme Court has held that, under specific, limited circumstances, the presumption that a prosecution is undertaken in good faith gives way to either a rebuttable presumption of prosecutorial vindictiveness or proof of actual vindictiveness. (9) A constitutional claim of prosecutorial vindictiveness may be established in either of two distinct ways: 1) proof of circumstances that pose a "realistic likelihood" of such misconduct sufficient to raise a "presumption of prosecutorial vindictiveness," which the State must rebut or face dismissal of the charges; (10) or 2) proof of "actual vindictiveness"- that is, direct evidence that the prosecutor's charging decision is an unjustifiable penalty resulting solely from the defendant's exercise of a protected legal right. (11) Under the first prong, if the State pursues increased charges or an enhanced sentence after a defendant is convicted, exercises his legal right to appeal, and obtains a new trial, the Supreme Court has found a presumption of prosecutorial vindictiveness. (12) In the very few situations in which this presumption does apply, it can be overcome by objective evidence in the record justifying the prosecutor's action. (13) The defendant must prove that he was convicted, he appealed and obtained a new trial, and that the State thereafter filed a greater charge or additional enhancements. The burden then shifts to the prosecution to come forward with an explanation for the charging increase that is unrelated to the defendant's exercise of his legal right to appeal. (14) The trial court decides the issue based upon all of the evidence, pro and con, and the credibility of the prosecutor's explanation. (15) Under the second prong, when the presumption does not apply, the defendant may still obtain relief if he can show actual vindictiveness. (16) To establish that claim, a defendant must prove, with objective evidence, that the prosecutor's charging decision was a "direct and unjustifiable penalty" that resulted "solely from the defendant's exercise of a protected legal right." (17) Under this prong, the defendant shoulders the burden of both production and persuasion, unaided by any legal presumption. (18) Once again, the trial judge decides the ultimate factual issue based upon the evidence and credibility determinations. Under either prong, "[i]f the defendant is unable to prove actual vindictiveness or a realistic likelihood of vindictiveness, a trial court need not reach the issue of government justification." (19) That is, the State may stand mute unless and until the defendant carries his burden of proof under either prong.
Appellant Forfeited His Prosecutorial Vindictiveness Claim Because He Failed to Comply with Texas Rule of Appellate Procedure 33.1(a). In this case, appellant never filed a motion to dismiss or quash the indictment based on a claim of prosecutorial vindictiveness. Even at trial, he never argued that his due-process rights had been violated by the re-indictment. As the State Prosecuting Attorney points out, the evidence that the court of appeals relied upon to find prosecutorial vindictiveness was not presented at the hearing on appellant's pretrial motions. Instead, it was presented at the sentencing hearing after he had been found guilty. Even then, appellant offered this evidence solely in mitigation of punishment, not to support a legal due-process claim requiring dismissal of the indictment. (20) Texas Rule of Appellate Procedure 33.1 provides that, in general, as a prerequisite to presenting a complaint for appellate review, the record must show a timely, specific objection and a ruling by the trial court. "Except for complaints involving systemic (or absolute) requirements, or rights that are waivable only ... all other complaints, whether constitutional, statutory, or otherwise, are forfeited by failure to comply with Rule 33.1(a)." (21) In this case the trial court neither disregarded an absolute requirement (such as jurisdiction over the subject or person), nor denied appellant a waivable-only right (such as the right to counsel or a jury trial), so the only issue is whether appellant complied with Rule 33.1(a). He did not. Appellant's prosecutorial "retaliation" argument, mentioned for the first time in the punishment hearing, was neither timely nor specific. Furthermore, appellant never asked for dismissal of the indictment nor did he offer evidence to support a due-process claim. The State was never afforded an opportunity to offer rebuttal evidence, and the trial court was never asked to rule upon a legal claim of prosecutorial vindictiveness. A. The claim was not timely. The Texas Code of Criminal Procedure requires that, if a defendant seeks dismissal of an indictment as the remedy for his constitutional or statutory claim, the Rule 33.1 requirement of timeliness means that the claim generally must be raised and ruled upon before trial. (22) Under Article 28.01, a trial court must determine such "preliminary matters" at a pre-trial hearing. (23) All preliminary matters which are not raised at the pre-trial hearing, are generally considered forfeited. (24) A motion to set aside, dismiss, or quash an indictment should be made at the first opportunity, (25) and must be presented to the trial court prior to an announcement by that party that it is ready for trial. (26) This rule serves the salutary purpose "of preventing unnecessary trials and deterring the interruption of a trial on the merits for any objection relating to the institution and presentation of the charge." (27) It would make little sense to wait until after a trial is complete before complaining that the trial should never have taken place because the indictment was defective or should have been dismissed or quashed. In this case, appellant did file a timely motion to quash the indictment based on two specific grounds: (1) an allegation of an illegal amendment to the indictment; and (2) a claim under Tex. Penal Code §12.45, which provides that "[i]f a court lawfully takes into account an admitted offense, prosecution is barred for that offense." (28) The court held a pretrial hearing, and those were the only two issues discussed and ruled upon. Appellant's counsel stated, during his closing arguments, that the State declined to re-offer its original two-year plea bargain once it had re-indicted appellant. Thus appellant had ample time and opportunity to include any pertinent legal claim of vindictiveness in his pretrial motions. Because appellant did not raise any prosecutorial vindictiveness claim at the pretrial hearing, that claim-based on events that occurred before trial and were known to appellant before trial-was untimely. (29) B. The claim was not specific. Nor was appellant's prosecutorial vindictiveness claim, to the degree that it was raised at punishment, specific under Rule 33.1(a). At trial, appellant never asserted that the timing of the re-indictment demonstrated either actual vindictiveness or a reasonable likelihood of misconduct sufficient to raise a presumption of prosecutorial vindictiveness. He used the timing to argue for mitigation of punishment-to prove that he deserved no more than the two-year sentence that the State had originally offered. Appellant took the stand and testified as follows: Q Now, when you got re-indicted, were you still willing and able to take - willing and wanting to, to take the two original years? A Yes, sir, I was. Q Even though you thought it was over with? A Yes, sir. Q But in the negotiations then, they wouldn't agree to that, would they? A No, sir. Q Now, are you asking the Judge today for the original two years that you agreed to back in 2000? A Yes, sir, I am. *** Q And after that [federal civil-rights] trial on February 28th, were you indicted for the same incident? A Yes, sir, I was. Q And were you surprised? A Yes, sir because I thought it was dismissed. So the first thing I felt was this was retaliation. Q Are you asking the Judge, in order to get this over with, - are you asking him for the two years? A Yes, sir, I am. Debra Neil-Terrell, appellant's sister, likewise testified she thought the re-indictment was retaliation, but that a two year sentence would be fair: Q And why did you want to be here for the sentencing? A Because I would like to talk to the Judge and speak to him on behalf of my brother, because I truly feel this case is not about justice. It's about revenge. *** Q Now, are you asking the Court - what are you asking the Court to do today? A I'm begging the Court to please give my brother the original deal. Q Of two years? A Of two years, yes. Q And do you think justice will be served that way? A Yes, I do. Appellant never uttered the words "prosecutorial vindictiveness" at trial. He never made this due-process claim at trial nor did he request the same relief at trial-dismissal of the indictment- that he requested on appeal. (30) What he did assert at trial was that the State acted in bad faith when it refused to re-offer the two-year plea bargain that it had agreed to before it dismissed the indictment in November 2000, which was before the federal civil trial. (31) This was not sufficient to put the trial court or the State on notice that he was raising a legally-cognizable due-process claim and seeking dismissal of the indictment. Appellant's due-process vindictiveness theory on appeal bore no resemblance to the equitable plea he made at trial. His position at the punishment hearing was that any sentence over two years would be unfair. This was not sufficient to put the trial court on notice of a due-process claim. C. The claim was not ruled on by the trial court. Because appellant never made his due-process claim in the trial court, that court was never given the opportunity to either hear evidence or rule on it. In Zillender v. State, (32) we stated the two-fold policies of requiring specific objections at trial: First, a specific objection is required to inform the trial judge of the basis of the objection and afford him the opportunity to rule on it. Second, a specific objection is required to afford opposing counsel an opportunity to remove the objection or supply other testimony. (33) Because a defendant must prove his prosecutorial vindictiveness claim, the importance of making that claim in the trial court is paramount. Appellant never formally offered any evidence to support this claim, and the State was never given an opportunity to offer evidence to rebut this claim. We stated in Bone v. State: (34) Under our system of justice, the criminal defendant is entitled to an opportunity to explain himself and present evidence on his behalf. His counsel should ordinarily be accorded an opportunity to explain her actions before being condemned as unprofessional and incompetent. (35) We should ordinarily accord the same opportunity to a prosecutor to explain his actions before a court condemns him as having violated a defendant's due-process rights with a vindictive prosecution and orders dismissal of a felony conviction. (36) If appellant had properly raised this issue in a written pretrial motion, the State would have been on notice to introduce the federal court judgment (thus obviating a mistake of fact by the court of appeals) (37) and the prosecutor could have testified concerning any new evidence, such as appellant's letters from jail, that had come to his attention since the original dismissal of charges. The trial judge would have had an opportunity to rule upon that motion, based upon all of the evidence and by assessing the credibility of the prosecutor's explanations.
We conclude that the court of appeals violated ordinary notions of procedural default in reversing the trial court's judgment on a legal claim which was never presented in the trial court. (38) In this case, it was only on appeal that appellant analogized his situation to that in Blackledge. (39) The court of appeals agreed with his analogy: Even though the charges are exactly the same in this case, the reasoning still applies. The sequence of events was that the State dismissed Neal's charge completely, the civil suit was heard, and then the State refiled the same charge. So in this case, Neal's position changed from being free from all charges to being subjected to a newly-filed charge-hence the "same" charge (as the original one) is "more serious" (than no charge at all). (40) The court of appeals stated that there was no evidence in the record to overcome the presumption of vindictiveness. (41) This is not surprising because the State was never on notice of the claim, the defense never offered evidence to support that claim, the State was never given an opportunity to offer rebutting evidence, and the trial court never given an opportunity to rule upon that claim. Because appellant never presented his prosecutorial vindictiveness claim in the trial court, he failed to preserve this issue for appellate review. We therefore reverse the judgment of the court of appeals and affirm the trial court's judgment. Cochran, J. Delivered: November 17, 2004 Publish
1. Neal v. State, 117 S.W.3d 301 (Tex. App. - Texarkana 2003). 2. We granted the State Prosecuting Attorney's two grounds for review: 1) The court of appeals erred by reversing the trial court's judgment on a theory not properly presented to the trial court and upon which the trial court was given no opportunity to rule; and 2) The court of appeals erred in applying a presumption of prosecutorial vindictiveness to the prosecutor's pretrial decision to re-indict, where the record fails to establish a reasonable likelihood of vindictiveness. Because we agree with the State's first issue, we need not address the State's second ground for review, and we therefore dismiss it. 3. In a bill of exceptions, the prosecutor testified that the decision to re-indict came after the Sheriff's Office complained about the original dismissal. The Rusk County Jail Administrator also testified. He stated that after appellant admitted under oath and in open court that he was in possession of the deadly weapon, his office contacted the district attorney's office about re-indicting appellant. 4. The court of appeals mistakenly believed that the weapons charge "was not re-filed until after Neal went to trial and was awarded damages for violations of his civil rights against Rusk County." Neal, 117 S.W.3d at 308. In fact, appellant testified that he found out he was awarded damages on April 18th. The State has attached a copy of the federal district court's written judgment to its brief in this Court. We decline to consider that attachment for the truth of its contents, but we do take notice of the fact that this document, verifying the date of the federal judgment as April 18, 2001, could have been introduced into evidence had appellant timely raised his complaint in the proper forum. 5. Neal, 117 S.W.3d at 308-09. 6. State v. Malone Serv. Co., 829 S.W.2d 763, 769 (Tex. 1992); Bordenkircher v. Hayes, 434 U.S. 357, 364 (1978) ("[i]n our system, so long as the prosecutor has probable cause to believe that the accused committed an offense defined by statute, the decision whether or not to prosecute, and what charge to file or bring before a grand jury, generally rests entirely in his discretion"). 7. Gawlik v. State, 608 S.W.2d 671, 673 (Tex. Crim. App. 1980). 8. Castleberry v. State, 704 S.W.2d 21, 24 (Tex. Crim. App. 1984) ("[t]o punish a person because he has done what the law plainly allows him to do is a due process violation of the most basic sort, and for an agent of the State to pursue a course of action whose objective is to penalize a person's reliance on his legal rights is 'patently unconstitutional.'") (quoting Hayes, 434 U.S. at 363). 9. United States v. Goodwin, 457 U.S. 368, 373 (1982). 10. United States v. Johnson, 171 F.3d 139, 140-41 (2d Cir. 1999). 11. Goodwin, 457 U.S. at 380-81. See generally 4 Wayne R. LaFave, Jerold H. Israel & Nancy J. King, Criminal Procedure § 13.7(c) (1999) (discussing historical evolution of constitutional "prosecutorial vindictiveness" claims). The Supreme Court made clear that it would be quite difficult for a defendant to meet the high burden of demonstrating actual vindictiveness. Goodwin, 457 U.S. at 384 n.19 (quoting government's brief that "the defendant is free to tender evidence to the court to support a claim that enhanced charges are a direct and unjustifiable penalty for the exercise of a procedural right. Of course, only in a rare case would a defendant be able to overcome the presumptive validity of the prosecutor's actions through such a demonstration"). 12. Blackledge v. Perry, 417 U.S. 21 (1974). In Goodwin, the Supreme Court explained why the presumption of vindictiveness prong rarely-if ever-applied outside the context of prior conviction, successful appeal, and post-appeal enhanced charging decision: There is good reason to be cautious before adopting an inflexible presumption of prosecutorial vindictiveness in a pretrial setting. In the course of preparing a case for trial, the prosecutor may uncover additional information that suggests a basis for further prosecution or he simply may come to realize that information possessed by the State has a broader significance. At this stage of the proceedings, the prosecutor's assessment of the proper extent of prosecution may not have crystallized. In contrast, once a trial begins-and certainly by the time a conviction has been obtained-it is much more likely that the State has discovered and assessed all of the information against an accused and has made a determination, on the basis of that information, of the extent to which he should be prosecuted. Thus, a change in the charging decision made after an initial trial is completed is much more likely to be improperly motivated than is a pretrial decision. Goodwin, 457 U.S. at 381. 13. Goodwin, 457 U.S. at 375; see also United States v. Paramo, 998 F.2d 1212, 1220 (3rd Cir. 1993)("[e]ven if a defendant establishes a realistic likelihood of vindictiveness, however, the government still has an opportunity to proffer legitimate, objective reasons for its conduct"). 14. United States v. Krezdorn, 693 F.2d 1221, 1229 (5th Cir. 1982) (stating that when presumption of prosecutorial vindictiveness applies, "the district court may consider any reasonable explanation for the added charges, so long as the explanation tends to negate an inference of retaliatory motivation"). 15. Id.; see also United States v. Johnson, 91 F.3d 695, 698 (5th Cir. 1996) ("[a] district court's factual findings on prosecutorial vindictiveness are reviewed for clear error and the legal principles which guide the district court are reviewed de novo"). 16. Texas v. McCullough, 475 U.S. 134, 138 (1986). 17. Goodwin, 457 U.S. at 384 & n.19; see also United States v. Whaley, 830 F.2d 1469, 1479 (7th Cir. 1987) ("[t]o prove actual vindictiveness, there must be objective evidence that a prosecutor acted in order to punish the defendant for standing on his legal rights"). 18. United States v. Sarracino, 340 F.3d 1148, 1177-79 (10th Cir. 2003); United States v. Moulder, 141 F.3d 568, 572 (5th Cir. 1998) ("[i]n reviewing a prosecutorial vindictiveness claim, 'the court must examine the prosecutor's actions in the context of the entire proceedings.' The defendant must prove the claim by a preponderance of the evidence; and, '[i]f any objective event or combination of events ... should indicate to a reasonable minded defendant that the prosecutor's decision to increase the severity of charges was motivated by some purpose other than a vindictive desire to deter or punish appeals, no presumption of vindictiveness is created'") (citations omitted). 19. United States v. Contreras, 108 F.3d 1255, 1262-63 (10th Cir. 1997). 20. The dissent argues that this Court does not address the claim that appellant actually raised in the trial court. That is, to some extent, true. The claim that appellant brought in the trial court was his closing argument equitable plea that the trial judge should not impose any greater sentence than the two-year plea bargain that the prosecutor had once agreed to. That is not a legal claim of prosecutorial vindictiveness. Neither appellant nor the dissent cite any precedent that a plea-bargain offer that is once made, but later retracted, may form the basis of a legal claim of prosecutorial vindictiveness. It is largely for this reason that we have set out the two possible legal bases for a constitutional claim of prosecutorial vindictiveness in Part II. This Court can address only the decision by the court of appeals, see Tex. R. App. P. 66.1, and that court ordered dismissal of the indictment on a legal claim that was not raised in the trial court. 21. Mendez v. State, 138 S.W.3d 334, 342 (Tex. Crim. App. 2004). 22. See 43A George E. Dix and Robert O. Dawson, Texas Practice: Criminal Practice and Procedure § 42.78, at 274 (2d ed. 2001). 23. Under Tex. Code Crim. Proc. art. 28.01 preliminary matters include: (1) Arraignment of the defendant, if such be necessary; and appointment of counsel to represent the defendant, if such be necessary; (2) Pleadings of the defendant; (3) Special pleas, if any; (4) Exceptions to the form or substance of the indictment or information .... 24. Tex. Code Crim. Proc. art. 28.01, § 2, provides that "[w]hen a criminal case is set for such pre-trial hearing, any such preliminary matters not raised or filed seven days before the hearing will not thereafter be allowed to be raised or filed, except by permission of the court for good cause shown; provided that the defendant shall have sufficient notice of such hearing to allow him not less than 10 days in which to raise or file such preliminary matters. The record made at such pre-trial hearing, the rulings of the court and the exceptions and objections thereto shall become a part of the trial record of the case upon its merits." 25. Valadez v. State, 408 S.W.2d 109, 111 (Tex. Crim. App. 1966). 26. Wilson v. State, 398 S.W.2d 291, 293 (Tex. Crim. App. 1966) (op. on reh'g). 27. Sewell v. United States, 406 F.2d 1289, 1292 (5th Cir. 1969). 28. Appellant claimed that, because the State checked the box "convicted on other charges" on the dismissal form when it originally dismissed the weapons indictment, the trial court must have taken this indictment into account in accepting the plea bargain in the forgery and burglary charges. The trial court rejected this claim because appellant pleaded guilty to those crimes before he was ever indicted for the deadly-weapon offense and there was no evidence that the trial court had taken this uncharged offense into account in accepting the plea bargain on the forgery and burglary charges. 29. See United States v. Peterson, 233 F.3d 101, 105 (1st Cir. 2000) ("[b]ecause Peterson failed to raise a claim of vindictive prosecution prior to trial, the claim is waived and we review for plain error"); Jarrett v. United States, 822 F.2d 1438, 1442 (7th Cir. 1987) ("Rule 12(b) requires that motions for selective and vindictive prosecution must be brought prior to trial or they will be deemed waived"); United States v. Conkins, 9 F.3d 1377, 1382 (9th Cir. 1993) ("a claim of 'vindictive prosecution' presents primarily factual questions of government motive. However, Sandvig did not raise this issue below, and therefore there is no evidence in the record to support his contention. Therefore, this issue does not present any of the exceptional circumstances that warrant a departure from our rule barring consideration of an issue raised for the first time on appeal"). 30. The dissent notes that appellant did request, as alternative relief, that the court of appeals remand the case for a new trial or enforcement of the State's original plea offer, but that alternative relief is nonetheless based upon a legal claim that was never presented to the trial court. 31. In his closing statement, appellant's attorney argued for a two-year sentence, not dismissal of the indictment: Now, you know, you try- the law is supposed to do justice. The law is supposed to be equal to all. What each one of us interpret as justice makes the difference on what different people get. At one time, me and the Prosecutor in this case were on the same line with Ronnie Joe Neal as to what justice was in this case, and that was two years in the state penitentiary. That's what we all thought justice would be served in this case. But for some reason, it was dismissed, just up and dismissed by the District Attorney, who undoubtedly thought at that time even two years was too much justice, so they just dismissed. And I think there's been testimony as to why it was dismissed is because the night before the plea, the Sheriff's Office found out he had AIDS, and they took him back and didn't want to bring him back to Rusk County. But then when the federal lawsuit is heard, all at once justice should be 2 to 20 years. Not 2 years, but anywhere between 2 and 20 years. That is not justice. That is punishing a man for filing suit on violation of his civil rights and not punishing for any criminal things he had done. And that ain't justice, Judge. In no sense of the word is that justice. Now, this man here, I think to resolve this issue, he's in agreement, his sister's in agreement, I'm in agreement, punish him with the original two years that everybody thought was right. 32. 557 S.W.2d 515 (Tex. Crim. App. 1977). 33. Id. at 517. 34. 77 S.W.3d 828 (Tex. Crim. App. 2002). 35. Id. at 836. 36. See United States v. Amberslie, 312 F. Supp.2d 570, 571-72 (S.D.N.Y. 2004) (stating that when defendant provides sufficient circumstances to raise a rebuttable presumption of vindictiveness sufficient to require the Government to respond with evidence of lack of animus, "[s]uch a response may normally be made, at least in the first instance, through affidavits from the relevant prosecutors, after which the burden shifts back to the defense to establish that the proffered response is pretextual or otherwise inadequate"). 37. See note 4, supra. 38. Hailey v. State, 87 S.W.3d 118, 122 (Tex. Crim. App. 2002) ("a trial court's decision will not be reversed on a theory the trial court did not have an opportunity to rule upon and upon which the non-appealing party did not have an opportunity to develop a complete factual record"). 39. Even then, appellant did not articulate whether his vindictive-prosecution claim was one purportedly raising a presumption of vindictiveness or one of actual animus. Arguably, therefore, the court of appeals reversed the trial court on a theory that was never properly raised, even in the appellate court. 40. Neal, 117 S.W.3d at 308. 41. But see United States v. White, 972 F.2d 16, 19 (2d Cir. 1992)("White violated federal and state laws in selling illegal drugs. The state's 1986 decision not to prosecute White is unrelated to the federal Government's 1991 determination that there was probable cause to believe that White had committed narcotics offenses. Even though White can show that his forfeiture claim brought his unprosecuted activities to the prosecutor's attention, this showing does not establish vindictiveness"). This information is made available as a free public service for your personal, non-commercial use. 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Showing posts with label CCISD feeders the School to Prison Pipeline. Show all posts
Showing posts with label CCISD feeders the School to Prison Pipeline. Show all posts
Tuesday, December 30, 2008
Prosecutorial vindictive? Appellant never uttered the words "prosecutorial vindictiveness" at trial. Is he legally trained?
Thursday, September 25, 2008
Due process should never be denied when justice is to be ......
Any employee of the State of Texas that lies to a parent regarding their child should remember....ab abusu ad usum non valet consequentia ~"a consequence from an abuse to a use is not valid"
or read Ezekiel 25:17
or read Ezekiel 25:17
Sunday, June 15, 2008
(6) to provide a simple judicial procedure ,yeah right...........
Any employee of the State of Texas that lies to a parent regarding their child should remember....ab abusu ad usum non valet consequentia ~"a consequence from an abuse to a use is not valid"
or read Ezekiel 25:17
§ 51.01. PURPOSE AND INTERPRETATION. This title shall
be construed to effectuate the following public purposes:
(1) to provide for the protection of the public and
public safety;
(2) consistent with the protection of the public and
public safety:
(A) to promote the concept of punishment for
criminal acts;
(B) to remove, where appropriate, the taint of
criminality from children committing certain unlawful acts; and
(C) to provide treatment, training, and
rehabilitation that emphasizes the accountability and
responsibility of both the parent and the child for the child's
conduct;
(3) to provide for the care, the protection, and the
wholesome moral, mental, and physical development of children
coming within its provisions;
(4) to protect the welfare of the community and to
control the commission of unlawful acts by children;
(5) to achieve the foregoing purposes in a family
environment whenever possible, separating the child from the
child's parents only when necessary for the child's welfare or in
the interest of public safety and when a child is removed from the
child's family, to give the child the care that should be provided
by parents; and
(6) to provide a simple judicial procedure through
which the provisions of this title are executed and enforced and in
which the parties are assured a fair hearing and their
constitutional and other legal rights recognized and enforced.
Acts 1973, 63rd Leg., p. 1460, ch. 544, § 1, eff. Sept. 1, 1973.
Amended by Acts 1995, 74th Leg., ch. 262, § 2, eff. Jan. 1, 1996.
or read Ezekiel 25:17
§ 51.01. PURPOSE AND INTERPRETATION. This title shall
be construed to effectuate the following public purposes:
(1) to provide for the protection of the public and
public safety;
(2) consistent with the protection of the public and
public safety:
(A) to promote the concept of punishment for
criminal acts;
(B) to remove, where appropriate, the taint of
criminality from children committing certain unlawful acts; and
(C) to provide treatment, training, and
rehabilitation that emphasizes the accountability and
responsibility of both the parent and the child for the child's
conduct;
(3) to provide for the care, the protection, and the
wholesome moral, mental, and physical development of children
coming within its provisions;
(4) to protect the welfare of the community and to
control the commission of unlawful acts by children;
(5) to achieve the foregoing purposes in a family
environment whenever possible, separating the child from the
child's parents only when necessary for the child's welfare or in
the interest of public safety and when a child is removed from the
child's family, to give the child the care that should be provided
by parents; and
(6) to provide a simple judicial procedure through
which the provisions of this title are executed and enforced and in
which the parties are assured a fair hearing and their
constitutional and other legal rights recognized and enforced.
Acts 1973, 63rd Leg., p. 1460, ch. 544, § 1, eff. Sept. 1, 1973.
Amended by Acts 1995, 74th Leg., ch. 262, § 2, eff. Jan. 1, 1996.
Monday, June 2, 2008
Ipsa scientia potestas est. ~ Knowledge itself is power.----Bacon
Any employee of the State of Texas that lies to a parent regarding their child should remember....ab abusu ad usum non valet consequentia ~"a consequence from an abuse to a use is not valid"
or read Ezekiel 25:17
Aut viam inveniam aut faciam - I will either find a way or make one
or read Ezekiel 25:17
Aut viam inveniam aut faciam - I will either find a way or make one
D. Scott Elliff ~it looks as if you fell off the planet, played a video in both English and Spanish, explaining the process and/or methodology for ..
Any employee of the State of Texas that lies to a parent regarding their child should remember....ab abusu ad usum non valet consequentia ~"a consequence from an abuse to a use is not valid"
originally published on the http://texasfairdefenseact.blogspot.com/
D. Scott Elliff ~it looks as if you fell off the planet, played a video in both English and Spanish, explaining the process and/or methodology for ...
the actions and demeanor of prosecuting attorney Melissa Daylong.
All students prosecuted in JP Courts and/or punished on the Federally Funded CCISD taxpayers tab should be punished by only one not both.
A child suspended and subsequently charged in court is double jeopardy and violates federal law.
Thank you,
CCISD TAXPAYERS ASSOCIATION
originally published on the http://texasfairdefenseact.blogspot.com/
D. Scott Elliff ~it looks as if you fell off the planet, played a video in both English and Spanish, explaining the process and/or methodology for ...
the actions and demeanor of prosecuting attorney Melissa Daylong.
All students prosecuted in JP Courts and/or punished on the Federally Funded CCISD taxpayers tab should be punished by only one not both.
A child suspended and subsequently charged in court is double jeopardy and violates federal law.
Thank you,
CCISD TAXPAYERS ASSOCIATION
Monday, May 19, 2008
conducting a follow up interview with many of the girls was told that it was “slap butt day” and many of them were involved in the same behavior
Any employee of the State of Texas that lies to a parent regarding their child should remember....ab abusu ad usum non valet consequentia ~"a consequence from an abuse to a use is not valid"
or read Ezekiel 25:17
Cory Mashburn and Ryan Cornelison, two 13-year-old boys ran down the hallway of Patton Middle School after lunch, slapping as many girl’s butts as they could get their hands on along the way. A teacher’s aid caught them and sent them to the office. The vice principal, Steve Tillery, and a police officer, Marshall Roache, stationed at the school, questioned the boys and some of the girls involved in the incident. Apparently convinced that a crime had been committed, the officer read the boys their Miranda rights and hauled them off in handcuffs to juvenile jail, where they spent the next five days. Now, Cory Mashburn and Ryan Cornelison, face the prospect of 10 years in juvenile detention and a lifetime on the sex offender registry. Read the Original Charges here. The charges against both Cory Mashburn and Ryan Cornelison were later amended and the felony charges against Cory were dropped.
Bradley Berry, the McMinnville district attorney, said his office “aggressively” pursues sex crimes that involve children. “These cases are devastating to children,” he said. “They are life-altering cases.”
“The disproportionality of the charges is absurd,” said Phillip Esplin, a forensic psychologist who has researched child sex abuse for the National Institutes of Health.
“My question is, why this would constitute a sexual offense, as opposed to something inappropriate that should have been dealt with within the school — not within the criminal justice system.”
To Rhonda Pope, mother of Christian Richter, 13, a girl named in the court papers as one of the victims, the charges are justified.
“Slapping somebody on the butt is sexual harassment, and it is a crime,” she said. “Considering what was going on and that my daughter was offended, it is a crime. And it’s not OK.”
Insisting that the charges are an overreaction, Mashburn’s attorney, Mark Lawrence, has worked to bring as much public attention as possible to the story. Lawrence, himself a former Yamhill County prosecutor, and his client briefly appeared on commentator Bill O’Reilly’s cable TV show.
“I look at this from a prosecutor’s perspective and a defense attorney’s perspective, and believe this is truly insane. I do not condone this behavior — it was inappropriate. But it is not criminal.”
Marshall Roache, the police officer, after conducting a follow up interview with many of the girls was told that it was “slap butt day” and many of them were involved in the same behavior including one girl who described it as “a handshake we do.” Two of the alleged victims said they had swatted boys’ buttocks themselves. No one claimed to be offended by the horseplay. At this point the two boys were still locked up.
The next day the juvenile court held a hearing on whether the boys should be released. The courtroom was packed with Patton students and families of both boys — many were crying. The boys were there, too, in shackles and jail outfits. Two of the alleged victims spontaneously offered to testify on behalf of the boys. Under oath, they told the judge they were friends and did not feel threatened by them. The two girls also testified they felt compelled, during the initial interviews with Tillery and Roache, to say things that weren’t true. Read a copy of the court transcript here.
“Well, when the (vice) principal asked me stuff, I kind of felt pressured to answer stuff that I was uncomfortable, and that it hurt, but it really didn’t,” the girl said, explaining that she didn’t think anything sexual went on.
The boys were released. But the judge ordered them out of school, required constant parental supervision and barred them from contacting friends. Any deviation, he said, would result in more time in juvenile jail. The boys and their parents were interviewed about the experience. Watch the Video Clip Here
The only “victims” in this entire incident were the two boys and their families. Because of their horseplay, two boys have been thrown in jail for days, enduring what must have been a nightmare for both of them. Now their parents are suffering under the expense of having to hire lawyers to defend their children. Both boys are under house arrest and are not able to return to school. They are facing some very serious charges that could land them in jail for a very long time. And in addition they may have to register as sex offenders and be included in that registry for the rest of their lives. All this over an incident in which no one claims to be a victim and no one is afraid of these two 13-year-olds, who were just having some fun with their friends during the lunch break at school. When will some sanity return to the “adults” who try to make young sexual predators out of boys just having fun??? Can someone tell them to BUTT out and let kids be kids!!!
or read Ezekiel 25:17
Cory Mashburn and Ryan Cornelison, two 13-year-old boys ran down the hallway of Patton Middle School after lunch, slapping as many girl’s butts as they could get their hands on along the way. A teacher’s aid caught them and sent them to the office. The vice principal, Steve Tillery, and a police officer, Marshall Roache, stationed at the school, questioned the boys and some of the girls involved in the incident. Apparently convinced that a crime had been committed, the officer read the boys their Miranda rights and hauled them off in handcuffs to juvenile jail, where they spent the next five days. Now, Cory Mashburn and Ryan Cornelison, face the prospect of 10 years in juvenile detention and a lifetime on the sex offender registry. Read the Original Charges here. The charges against both Cory Mashburn and Ryan Cornelison were later amended and the felony charges against Cory were dropped.
Bradley Berry, the McMinnville district attorney, said his office “aggressively” pursues sex crimes that involve children. “These cases are devastating to children,” he said. “They are life-altering cases.”
“The disproportionality of the charges is absurd,” said Phillip Esplin, a forensic psychologist who has researched child sex abuse for the National Institutes of Health.
“My question is, why this would constitute a sexual offense, as opposed to something inappropriate that should have been dealt with within the school — not within the criminal justice system.”
To Rhonda Pope, mother of Christian Richter, 13, a girl named in the court papers as one of the victims, the charges are justified.
“Slapping somebody on the butt is sexual harassment, and it is a crime,” she said. “Considering what was going on and that my daughter was offended, it is a crime. And it’s not OK.”
Insisting that the charges are an overreaction, Mashburn’s attorney, Mark Lawrence, has worked to bring as much public attention as possible to the story. Lawrence, himself a former Yamhill County prosecutor, and his client briefly appeared on commentator Bill O’Reilly’s cable TV show.
“I look at this from a prosecutor’s perspective and a defense attorney’s perspective, and believe this is truly insane. I do not condone this behavior — it was inappropriate. But it is not criminal.”
Marshall Roache, the police officer, after conducting a follow up interview with many of the girls was told that it was “slap butt day” and many of them were involved in the same behavior including one girl who described it as “a handshake we do.” Two of the alleged victims said they had swatted boys’ buttocks themselves. No one claimed to be offended by the horseplay. At this point the two boys were still locked up.
The next day the juvenile court held a hearing on whether the boys should be released. The courtroom was packed with Patton students and families of both boys — many were crying. The boys were there, too, in shackles and jail outfits. Two of the alleged victims spontaneously offered to testify on behalf of the boys. Under oath, they told the judge they were friends and did not feel threatened by them. The two girls also testified they felt compelled, during the initial interviews with Tillery and Roache, to say things that weren’t true. Read a copy of the court transcript here.
“Well, when the (vice) principal asked me stuff, I kind of felt pressured to answer stuff that I was uncomfortable, and that it hurt, but it really didn’t,” the girl said, explaining that she didn’t think anything sexual went on.
The boys were released. But the judge ordered them out of school, required constant parental supervision and barred them from contacting friends. Any deviation, he said, would result in more time in juvenile jail. The boys and their parents were interviewed about the experience. Watch the Video Clip Here
The only “victims” in this entire incident were the two boys and their families. Because of their horseplay, two boys have been thrown in jail for days, enduring what must have been a nightmare for both of them. Now their parents are suffering under the expense of having to hire lawyers to defend their children. Both boys are under house arrest and are not able to return to school. They are facing some very serious charges that could land them in jail for a very long time. And in addition they may have to register as sex offenders and be included in that registry for the rest of their lives. All this over an incident in which no one claims to be a victim and no one is afraid of these two 13-year-olds, who were just having some fun with their friends during the lunch break at school. When will some sanity return to the “adults” who try to make young sexual predators out of boys just having fun??? Can someone tell them to BUTT out and let kids be kids!!!
Thursday, April 17, 2008
Thursday, April 17, 2008
Does The Court Conclude, The Prosecution of Unrepresented 12 Year Olds Is In The interests of Justice or Will The Court Require Representation
Art. 1.051. RIGHT TO REPRESENTATION BY COUNSEL.
(c) An indigent defendant is entitled to have an attorney
appointed to represent him in any adversary judicial proceeding
that may result in punishment by confinement and in any other
criminal proceeding if the court concludes that the interests of
justice require representation. Except as otherwise provided by
this subsection, if an indigent defendant is entitled to and
requests appointed counsel and if adversarial judicial proceedings
have been initiated against the defendant, a court or the courts'
designee authorized under Article 26.04 to appoint counsel for
indigent defendants in the county shall appoint counsel as soon as
possible, but not later than the end of the third working day after
the date on which the court or the courts' designee receives the
defendant's request for appointment of counsel. In a county with a
population of 250,000 or more, the court or the courts' designee
shall appoint counsel as required by this subsection as soon as
possible, but not later than the end of the first working day after
the date on which the court or the courts' designee receives the
defendant's request for appointment of counsel.
Jules: Wanna know what I'm buyin' Ringo?
Pumpkin: What?
Jules: Your life. I'm givin' you that money so I don't hafta kill your ass. You read the Bible?
Pumpkin: Not regularly.
Jules: There's a passage I got memorized. Ezekiel 25:17. The path of the righteous man is beset on all sides by the inequities of the selfish and the tyranny of evil men. Blessed is he who, in the name of charity and good will, shepherds the weak through the valley of the darkness. For he is truly his brother's keeper and the finder of lost children. And I will strike down upon thee with great vengeance and furious anger those who attempt to poison and destroy my brothers. And you will know I am the Lord when I lay my vengeance upon you. I been sayin' that shit for years. And if you ever heard it, it meant your ass. I never really questioned what it meant. I thought it was just a cold-blooded thing to say to a motherfucker before you popped a cap in his ass. But I saw some shit this mornin' made me think twice. Now I'm thinkin': it could mean you're the evil man. And I'm the righteous man. And Mr. 9mm here, he's the shepherd protecting my righteous ass in the valley of darkness. Or it could be you're the righteous man and I'm the shepherd and it's the world that's evil and selfish. I'd like that. But that shit ain't the truth. The truth is you're the weak. And I'm the tyranny of evil men. But I'm tryin', Ringo. I'm tryin' real hard to be a shepherd.
Posted by The Advocate at 3:03 PM
0 comments:
Thursday, April 17, 2008
Does The Court Conclude, The Prosecution of Unrepresented 12 Year Olds Is In The interests of Justice or Will The Court Require Representation
Art. 1.051. RIGHT TO REPRESENTATION BY COUNSEL.
(c) An indigent defendant is entitled to have an attorney
appointed to represent him in any adversary judicial proceeding
that may result in punishment by confinement and in any other
criminal proceeding if the court concludes that the interests of
justice require representation. Except as otherwise provided by
this subsection, if an indigent defendant is entitled to and
requests appointed counsel and if adversarial judicial proceedings
have been initiated against the defendant, a court or the courts'
designee authorized under Article 26.04 to appoint counsel for
indigent defendants in the county shall appoint counsel as soon as
possible, but not later than the end of the third working day after
the date on which the court or the courts' designee receives the
defendant's request for appointment of counsel. In a county with a
population of 250,000 or more, the court or the courts' designee
shall appoint counsel as required by this subsection as soon as
possible, but not later than the end of the first working day after
the date on which the court or the courts' designee receives the
defendant's request for appointment of counsel.
Jules: Wanna know what I'm buyin' Ringo?
Pumpkin: What?
Jules: Your life. I'm givin' you that money so I don't hafta kill your ass. You read the Bible?
Pumpkin: Not regularly.
Jules: There's a passage I got memorized. Ezekiel 25:17. The path of the righteous man is beset on all sides by the inequities of the selfish and the tyranny of evil men. Blessed is he who, in the name of charity and good will, shepherds the weak through the valley of the darkness. For he is truly his brother's keeper and the finder of lost children. And I will strike down upon thee with great vengeance and furious anger those who attempt to poison and destroy my brothers. And you will know I am the Lord when I lay my vengeance upon you. I been sayin' that shit for years. And if you ever heard it, it meant your ass. I never really questioned what it meant. I thought it was just a cold-blooded thing to say to a motherfucker before you popped a cap in his ass. But I saw some shit this mornin' made me think twice. Now I'm thinkin': it could mean you're the evil man. And I'm the righteous man. And Mr. 9mm here, he's the shepherd protecting my righteous ass in the valley of darkness. Or it could be you're the righteous man and I'm the shepherd and it's the world that's evil and selfish. I'd like that. But that shit ain't the truth. The truth is you're the weak. And I'm the tyranny of evil men. But I'm tryin', Ringo. I'm tryin' real hard to be a shepherd.
Posted by The Advocate at 3:03 PM
0 comments:
Does The Court Conclude, The Prosecution of Unrepresented 12 Year Olds Is In The interests of Justice or Will The Court Require Representation
Art. 1.051. RIGHT TO REPRESENTATION BY COUNSEL.
(c) An indigent defendant is entitled to have an attorney
appointed to represent him in any adversary judicial proceeding
that may result in punishment by confinement and in any other
criminal proceeding if the court concludes that the interests of
justice require representation. Except as otherwise provided by
this subsection, if an indigent defendant is entitled to and
requests appointed counsel and if adversarial judicial proceedings
have been initiated against the defendant, a court or the courts'
designee authorized under Article 26.04 to appoint counsel for
indigent defendants in the county shall appoint counsel as soon as
possible, but not later than the end of the third working day after
the date on which the court or the courts' designee receives the
defendant's request for appointment of counsel. In a county with a
population of 250,000 or more, the court or the courts' designee
shall appoint counsel as required by this subsection as soon as
possible, but not later than the end of the first working day after
the date on which the court or the courts' designee receives the
defendant's request for appointment of counsel.
Jules: Wanna know what I'm buyin' Ringo?
Pumpkin: What?
Jules: Your life. I'm givin' you that money so I don't hafta kill your ass. You read the Bible?
Pumpkin: Not regularly.
Jules: There's a passage I got memorized. Ezekiel 25:17. The path of the righteous man is beset on all sides by the inequities of the selfish and the tyranny of evil men. Blessed is he who, in the name of charity and good will, shepherds the weak through the valley of the darkness. For he is truly his brother's keeper and the finder of lost children. And I will strike down upon thee with great vengeance and furious anger those who attempt to poison and destroy my brothers. And you will know I am the Lord when I lay my vengeance upon you. I been sayin' that shit for years. And if you ever heard it, it meant your ass. I never really questioned what it meant. I thought it was just a cold-blooded thing to say to a motherfucker before you popped a cap in his ass. But I saw some shit this mornin' made me think twice. Now I'm thinkin': it could mean you're the evil man. And I'm the righteous man. And Mr. 9mm here, he's the shepherd protecting my righteous ass in the valley of darkness. Or it could be you're the righteous man and I'm the shepherd and it's the world that's evil and selfish. I'd like that. But that shit ain't the truth. The truth is you're the weak. And I'm the tyranny of evil men. But I'm tryin', Ringo. I'm tryin' real hard to be a shepherd.
Posted by The Advocate at 3:03 PM
0 comments:
Thursday, April 17, 2008
Does The Court Conclude, The Prosecution of Unrepresented 12 Year Olds Is In The interests of Justice or Will The Court Require Representation
Art. 1.051. RIGHT TO REPRESENTATION BY COUNSEL.
(c) An indigent defendant is entitled to have an attorney
appointed to represent him in any adversary judicial proceeding
that may result in punishment by confinement and in any other
criminal proceeding if the court concludes that the interests of
justice require representation. Except as otherwise provided by
this subsection, if an indigent defendant is entitled to and
requests appointed counsel and if adversarial judicial proceedings
have been initiated against the defendant, a court or the courts'
designee authorized under Article 26.04 to appoint counsel for
indigent defendants in the county shall appoint counsel as soon as
possible, but not later than the end of the third working day after
the date on which the court or the courts' designee receives the
defendant's request for appointment of counsel. In a county with a
population of 250,000 or more, the court or the courts' designee
shall appoint counsel as required by this subsection as soon as
possible, but not later than the end of the first working day after
the date on which the court or the courts' designee receives the
defendant's request for appointment of counsel.
Jules: Wanna know what I'm buyin' Ringo?
Pumpkin: What?
Jules: Your life. I'm givin' you that money so I don't hafta kill your ass. You read the Bible?
Pumpkin: Not regularly.
Jules: There's a passage I got memorized. Ezekiel 25:17. The path of the righteous man is beset on all sides by the inequities of the selfish and the tyranny of evil men. Blessed is he who, in the name of charity and good will, shepherds the weak through the valley of the darkness. For he is truly his brother's keeper and the finder of lost children. And I will strike down upon thee with great vengeance and furious anger those who attempt to poison and destroy my brothers. And you will know I am the Lord when I lay my vengeance upon you. I been sayin' that shit for years. And if you ever heard it, it meant your ass. I never really questioned what it meant. I thought it was just a cold-blooded thing to say to a motherfucker before you popped a cap in his ass. But I saw some shit this mornin' made me think twice. Now I'm thinkin': it could mean you're the evil man. And I'm the righteous man. And Mr. 9mm here, he's the shepherd protecting my righteous ass in the valley of darkness. Or it could be you're the righteous man and I'm the shepherd and it's the world that's evil and selfish. I'd like that. But that shit ain't the truth. The truth is you're the weak. And I'm the tyranny of evil men. But I'm tryin', Ringo. I'm tryin' real hard to be a shepherd.
Posted by The Advocate at 3:03 PM
0 comments:
An "XML Schema" defines the rules and constraints for the characteristics of the data......intangible IRL.......
The Virginian-Pilot
THE VIRGINIAN-PILOT
Copyright (c) 1995, Landmark Communications, Inc.
DATE: Tuesday, October 3, 1995 TAG: 9510030252
SECTION: LOCAL PAGE: B1 EDITION: FINAL
SOURCE: BY MARC DAVIS, STAFF WRITER
DATELINE: PORTSMOUTH LENGTH: Long : 178 lines
``I LOST EVERYTHING.'' ATTORNEY'S MISTAKES, LIES HELP COST COUPLE THEIR HOME AND BUSINESS
When Frank and Gayle Galiney found themselves victims of a bad lawyer, their first reaction was to try to get compensation.
The lawyer, Joseph James Basgier Jr. of Virginia Beach - who has surrendered his license and is awaiting sentencing on embezzlement charges - had botched the Galineys' lawsuit. He missed a filing deadline, then covered up by telling the Galineys their case was still pending.
The deception went on for years. Over time, the Galineys lost their home, their business and their credit, in part because of Basgier's mistakes. When they finally discovered the lie, they convinced Basgier to pay them $50,000 for his mistake, plus another $131,000 over 10 years.
But when the monthly payments stopped, the Galineys found themselves up a creek.
They couldn't collect from Basgier's legal malpractice insurance. He had none.
They probably can't collect criminal restitution, even though Basgier has pleaded guilty to embezzling $80,000 from his former law firm and other clients. He didn't embezzle from the Galineys.
Finally, they can't collect from a State Bar fund that pays victims of crooked lawyers. That's because Basgier didn't steal anything from them. He just loused up their case.
And so the Galineys have learned a lesson that victims of Peninsula lawyer David Murray learned in 1992, after Murray stole $42 million from clients, then killed himself:
In Virginia, neither the State Bar nor the state courts guarantees that victims of dishonest or incompetent lawyers are fully protected.
``I thought,'' Gayle Galiney says, ``there are supposed to be systems in place to keep these sort of things from happening.''
Frank Galiney is angrier. ``The bar is definitely there for the good of the attorneys and not the good of the public,'' he says. ``They should have better checks and balances somewhere along the line.''
What went wrong?
It began with a lawsuit filed late.
Galiney owned four bowling alleys and three used-car lots, but he had a problem. He owed a lot of money to a finance company. He had guaranteed many loans from the finance company to his customers, so they could buy his cars.
But then the customers started defaulting on the loans, and Galiney was on the hook.
That was trouble. Over two years, the bad debts ran into serious money. Galiney paid back $125,000 in 1986 and 1987, according to court papers.
Galiney thought this was a fraud. He thought the finance company was making him pay off loans that had nothing to do with his car business. And the debts were threatening his businesses and his home.
So Galiney sued.
``I thought it was a simple matter,'' Galiney says. ``I was going to get my money back.''
Galiney went to a lawyer friend, Robert Steinhilber of Virginia Beach. Steinhilber passed the case to a partner, Jim Basgier, who drew up the lawsuit and filed it in Norfolk Circuit Court. That was in 1988.
For three years, the case bounced from court to court.
By the final bounce, it was too late. The last lawsuit was filed in 1991, beyond the three-year limit.
A judge threw it out. Galiney would get no money.
After an angry confrontation, the Galineys say, Basgier admitted his mistake. ``He laid it on the line,'' Gayle Galiney recalls. ``He could not find a legal remedy for the situation. He started begging and crying.''
So the Galineys struck a deal: To remedy the error, Basgier paid them $50,000 cash and agreed to pay another $131,000 over 10 years. He even signed a promissory note.
But by then, the Galineys had lost their bowling alleys, their car lots and their fancy home in Point Elizabeth. ``I lost everything over this mess,'' Frank Galiney says.
Basgier and his attorney could not be reached for comment. Basgier declined to comment after his criminal hearing in August.
Galiney acknowledges that not everything was the lawyer's fault. Galiney admits making some business mistakes that contributed to his own financial downfall. And he did not really lose everything. He and his wife still live in a comfortable house with a swimming pool near Craney Island.
Still, Galiney says, if he had known the truth about his lawsuit, he might have made different business decisions.
``Maybe I should have been smarter,'' Galiney says, ``but I relied on (him) as an officer of the court.''
After the shock wore off, the Galineys went after Basgier's legal malpractice insurance.
Nine of 10 Virginia lawyers have it. It protects them from a client's claim of injury arising from a mistake, just like a doctor's medical malpractice insurance.
But Basgier didn't have it. He had let his policy lapse, Galiney said.
That was possible because the Virginia State Bar and the Virginia Supreme Court do not require lawyers to have malpractice insurance. They simply hope that most lawyers realize the wisdom of insurance.
``We want all of our lawyers to have malpractice coverage,'' says Michael W. Smith, a Richmond attorney who is president of the State Bar. ``It doesn't make any sense not to have it. It would be similar to driving your automobile without insurance. It wouldn't be a very smart idea.''
For a while last year, in response to the Murray disaster, the bar considered requiring malpractice insurance of all lawyers. But a committee rejected the idea, saying it would ``lull the public into a false sense of security.''
``The key point here,'' the committee wrote, ``is that malpractice insurance policies currently exclude dishonest and intentional acts. Thus, mandatory malpractice insurance would have offered no protection to clients against losses like those involved in the Murray case.''
It would, however, have protected clients like Frank Galiney against sloppiness like Basgier's.
``Why don't they require lawyers to have malpractice insurance?'' Galiney asks. ``That at least would be some little benefit to the public.''
Next, the Galineys turned to a little-known State Bar fund. It is called the Client Protection Fund and it pays people who have lost money to dishonest lawyers.
But that has problems, too.
Mainly, the fund is too small - it would go broke if it paid every valid claim. So the State Bar limits how much each wronged client can collect. The cap is $25,000, no matter how big the claim.
The State Bar also will not pay more than 10 percent of the total fund to clients of any single bad lawyer. That way, one attorney's many criminal acts, like Murray's, can't break the bank.
Unfortunately, it also means that victims of one lawyer get very little compensation.
Murray's clients, for example, filed claims for millions of dollars. In the end, 23 clients split $55,000 because the fund had just $550,000 in the bank.
Bar officials know the fund is too small. ``Demands upon the fund will continue to be unmet in significant part, so long as the 10 percent limit remains in force,'' the fund's chairman wrote last year.
So the bar is trying to make it bigger. Every year, the bar is chipping in an extra $200,000 until the fund reaches $3 million. At that rate, it could take a while because the fund also is paying out about $200,000 in claims.
Still, the fund today is triple the size it was during the Murray scandal - $1.5 million, as of last month. That means it can pay up to $150,000 for one bad lawyer.
To victims of Basgier's embezzlements, the fund has already paid a total of $30,080, including one payment for the maximum $25,000. Another claim is pending.
But the Galineys got nothing.
``They told us we're not eligible,'' Gayle Galiney says. ``It's only for people that lawyers actually took money away from.''
Finally, the Galineys sought criminal restitution from Basgier.
That probably will fail, too.
In August, Basgier pleaded guilty to three counts of embezzlement. In return, prosecutors dropped one count of forgery - the only count related to the Galiney matter.
Technically, that means the Galineys are not victims of Basgier's crimes.
Despite this, a prosecutor asked Judge Edward Hanson in August to order $50,000 restitution from Basgier to Frank Galiney. ``He lost his business as a result of the defendant's actions,'' prosecutor William Monroe argued.
The judge disagreed. If the Galineys want their money, Hanson said, they will have to sue Basgier.
Hanson will officially rule on the restitution issue Oct. 10, when Basgier is formally sentenced. The plea agreement calls for no jail time, but 10 years of court-ordered good behavior.
Basgier, 44, has already lost his law license. He surrendered it in March 1993 with disciplinary charges pending at the State Bar. He now works as a title searcher.
``I really have no desire to see Jim (Basgier) go to jail,'' Frank Galiney says. ``He's going to be punished enough in life with what he's lost. In essence, he's lost more than I have. . .
``But if nothing else, he should be held accountable to everyone. I would be happy with one-third of what he owes me. Just something.'' ILLUSTRATION: MOTOYA NAKAMURA
Staff
[Color Photo]
Gayle and Frank Galiney probably won't be able to collect much from
the lawyer who misled them. He had no malpractice insurance.
PAYING FOR LAWYERS' MISDEEDS
Year-by-year payouts from the Virginia State Bar's Client Protection
Fund, in thousands of dollars.
STAFF Chart
SOURCE: Virginia State Bar
THE VIRGINIAN-PILOT
Copyright (c) 1995, Landmark Communications, Inc.
DATE: Tuesday, October 3, 1995 TAG: 9510030252
SECTION: LOCAL PAGE: B1 EDITION: FINAL
SOURCE: BY MARC DAVIS, STAFF WRITER
DATELINE: PORTSMOUTH LENGTH: Long : 178 lines
``I LOST EVERYTHING.'' ATTORNEY'S MISTAKES, LIES HELP COST COUPLE THEIR HOME AND BUSINESS
When Frank and Gayle Galiney found themselves victims of a bad lawyer, their first reaction was to try to get compensation.
The lawyer, Joseph James Basgier Jr. of Virginia Beach - who has surrendered his license and is awaiting sentencing on embezzlement charges - had botched the Galineys' lawsuit. He missed a filing deadline, then covered up by telling the Galineys their case was still pending.
The deception went on for years. Over time, the Galineys lost their home, their business and their credit, in part because of Basgier's mistakes. When they finally discovered the lie, they convinced Basgier to pay them $50,000 for his mistake, plus another $131,000 over 10 years.
But when the monthly payments stopped, the Galineys found themselves up a creek.
They couldn't collect from Basgier's legal malpractice insurance. He had none.
They probably can't collect criminal restitution, even though Basgier has pleaded guilty to embezzling $80,000 from his former law firm and other clients. He didn't embezzle from the Galineys.
Finally, they can't collect from a State Bar fund that pays victims of crooked lawyers. That's because Basgier didn't steal anything from them. He just loused up their case.
And so the Galineys have learned a lesson that victims of Peninsula lawyer David Murray learned in 1992, after Murray stole $42 million from clients, then killed himself:
In Virginia, neither the State Bar nor the state courts guarantees that victims of dishonest or incompetent lawyers are fully protected.
``I thought,'' Gayle Galiney says, ``there are supposed to be systems in place to keep these sort of things from happening.''
Frank Galiney is angrier. ``The bar is definitely there for the good of the attorneys and not the good of the public,'' he says. ``They should have better checks and balances somewhere along the line.''
What went wrong?
It began with a lawsuit filed late.
Galiney owned four bowling alleys and three used-car lots, but he had a problem. He owed a lot of money to a finance company. He had guaranteed many loans from the finance company to his customers, so they could buy his cars.
But then the customers started defaulting on the loans, and Galiney was on the hook.
That was trouble. Over two years, the bad debts ran into serious money. Galiney paid back $125,000 in 1986 and 1987, according to court papers.
Galiney thought this was a fraud. He thought the finance company was making him pay off loans that had nothing to do with his car business. And the debts were threatening his businesses and his home.
So Galiney sued.
``I thought it was a simple matter,'' Galiney says. ``I was going to get my money back.''
Galiney went to a lawyer friend, Robert Steinhilber of Virginia Beach. Steinhilber passed the case to a partner, Jim Basgier, who drew up the lawsuit and filed it in Norfolk Circuit Court. That was in 1988.
For three years, the case bounced from court to court.
By the final bounce, it was too late. The last lawsuit was filed in 1991, beyond the three-year limit.
A judge threw it out. Galiney would get no money.
After an angry confrontation, the Galineys say, Basgier admitted his mistake. ``He laid it on the line,'' Gayle Galiney recalls. ``He could not find a legal remedy for the situation. He started begging and crying.''
So the Galineys struck a deal: To remedy the error, Basgier paid them $50,000 cash and agreed to pay another $131,000 over 10 years. He even signed a promissory note.
But by then, the Galineys had lost their bowling alleys, their car lots and their fancy home in Point Elizabeth. ``I lost everything over this mess,'' Frank Galiney says.
Basgier and his attorney could not be reached for comment. Basgier declined to comment after his criminal hearing in August.
Galiney acknowledges that not everything was the lawyer's fault. Galiney admits making some business mistakes that contributed to his own financial downfall. And he did not really lose everything. He and his wife still live in a comfortable house with a swimming pool near Craney Island.
Still, Galiney says, if he had known the truth about his lawsuit, he might have made different business decisions.
``Maybe I should have been smarter,'' Galiney says, ``but I relied on (him) as an officer of the court.''
After the shock wore off, the Galineys went after Basgier's legal malpractice insurance.
Nine of 10 Virginia lawyers have it. It protects them from a client's claim of injury arising from a mistake, just like a doctor's medical malpractice insurance.
But Basgier didn't have it. He had let his policy lapse, Galiney said.
That was possible because the Virginia State Bar and the Virginia Supreme Court do not require lawyers to have malpractice insurance. They simply hope that most lawyers realize the wisdom of insurance.
``We want all of our lawyers to have malpractice coverage,'' says Michael W. Smith, a Richmond attorney who is president of the State Bar. ``It doesn't make any sense not to have it. It would be similar to driving your automobile without insurance. It wouldn't be a very smart idea.''
For a while last year, in response to the Murray disaster, the bar considered requiring malpractice insurance of all lawyers. But a committee rejected the idea, saying it would ``lull the public into a false sense of security.''
``The key point here,'' the committee wrote, ``is that malpractice insurance policies currently exclude dishonest and intentional acts. Thus, mandatory malpractice insurance would have offered no protection to clients against losses like those involved in the Murray case.''
It would, however, have protected clients like Frank Galiney against sloppiness like Basgier's.
``Why don't they require lawyers to have malpractice insurance?'' Galiney asks. ``That at least would be some little benefit to the public.''
Next, the Galineys turned to a little-known State Bar fund. It is called the Client Protection Fund and it pays people who have lost money to dishonest lawyers.
But that has problems, too.
Mainly, the fund is too small - it would go broke if it paid every valid claim. So the State Bar limits how much each wronged client can collect. The cap is $25,000, no matter how big the claim.
The State Bar also will not pay more than 10 percent of the total fund to clients of any single bad lawyer. That way, one attorney's many criminal acts, like Murray's, can't break the bank.
Unfortunately, it also means that victims of one lawyer get very little compensation.
Murray's clients, for example, filed claims for millions of dollars. In the end, 23 clients split $55,000 because the fund had just $550,000 in the bank.
Bar officials know the fund is too small. ``Demands upon the fund will continue to be unmet in significant part, so long as the 10 percent limit remains in force,'' the fund's chairman wrote last year.
So the bar is trying to make it bigger. Every year, the bar is chipping in an extra $200,000 until the fund reaches $3 million. At that rate, it could take a while because the fund also is paying out about $200,000 in claims.
Still, the fund today is triple the size it was during the Murray scandal - $1.5 million, as of last month. That means it can pay up to $150,000 for one bad lawyer.
To victims of Basgier's embezzlements, the fund has already paid a total of $30,080, including one payment for the maximum $25,000. Another claim is pending.
But the Galineys got nothing.
``They told us we're not eligible,'' Gayle Galiney says. ``It's only for people that lawyers actually took money away from.''
Finally, the Galineys sought criminal restitution from Basgier.
That probably will fail, too.
In August, Basgier pleaded guilty to three counts of embezzlement. In return, prosecutors dropped one count of forgery - the only count related to the Galiney matter.
Technically, that means the Galineys are not victims of Basgier's crimes.
Despite this, a prosecutor asked Judge Edward Hanson in August to order $50,000 restitution from Basgier to Frank Galiney. ``He lost his business as a result of the defendant's actions,'' prosecutor William Monroe argued.
The judge disagreed. If the Galineys want their money, Hanson said, they will have to sue Basgier.
Hanson will officially rule on the restitution issue Oct. 10, when Basgier is formally sentenced. The plea agreement calls for no jail time, but 10 years of court-ordered good behavior.
Basgier, 44, has already lost his law license. He surrendered it in March 1993 with disciplinary charges pending at the State Bar. He now works as a title searcher.
``I really have no desire to see Jim (Basgier) go to jail,'' Frank Galiney says. ``He's going to be punished enough in life with what he's lost. In essence, he's lost more than I have. . .
``But if nothing else, he should be held accountable to everyone. I would be happy with one-third of what he owes me. Just something.'' ILLUSTRATION: MOTOYA NAKAMURA
Staff
[Color Photo]
Gayle and Frank Galiney probably won't be able to collect much from
the lawyer who misled them. He had no malpractice insurance.
PAYING FOR LAWYERS' MISDEEDS
Year-by-year payouts from the Virginia State Bar's Client Protection
Fund, in thousands of dollars.
STAFF Chart
SOURCE: Virginia State Bar
Any employee of the State of Texas that lies to a parent regarding their child should remember....ab abusu ad usum non valet consequentia ~"a consequence from an abuse to a use is not valid"
or read Ezekiel 25:17
~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~
The Virginian-Pilot
THE VIRGINIAN-PILOT
Copyright (c) 1995, Landmark Communications, Inc.
DATE: Tuesday, October 3, 1995 TAG: 9510030252
SECTION: LOCAL PAGE: B1 EDITION: FINAL
SOURCE: BY MARC DAVIS, STAFF WRITER
DATELINE: PORTSMOUTH LENGTH: Long : 178 lines
``I LOST EVERYTHING.'' ATTORNEY'S MISTAKES, LIES HELP COST COUPLE THEIR HOME AND BUSINESS
When Frank and Gayle Galiney found themselves victims of a bad lawyer, their first reaction was to try to get compensation.
The lawyer, Joseph James Basgier Jr. of Virginia Beach - who has surrendered his license and is awaiting sentencing on embezzlement charges - had botched the Galineys' lawsuit. He missed a filing deadline, then covered up by telling the Galineys their case was still pending.
The deception went on for years. Over time, the Galineys lost their home, their business and their credit, in part because of Basgier's mistakes. When they finally discovered the lie, they convinced Basgier to pay them $50,000 for his mistake, plus another $131,000 over 10 years.
But when the monthly payments stopped, the Galineys found themselves up a creek.
They couldn't collect from Basgier's legal malpractice insurance. He had none.
They probably can't collect criminal restitution, even though Basgier has pleaded guilty to embezzling $80,000 from his former law firm and other clients. He didn't embezzle from the Galineys.
Finally, they can't collect from a State Bar fund that pays victims of crooked lawyers. That's because Basgier didn't steal anything from them. He just loused up their case.
And so the Galineys have learned a lesson that victims of Peninsula lawyer David Murray learned in 1992, after Murray stole $42 million from clients, then killed himself:
In Virginia, neither the State Bar nor the state courts guarantees that victims of dishonest or incompetent lawyers are fully protected.
``I thought,'' Gayle Galiney says, ``there are supposed to be systems in place to keep these sort of things from happening.''
Frank Galiney is angrier. ``The bar is definitely there for the good of the attorneys and not the good of the public,'' he says. ``They should have better checks and balances somewhere along the line.''
What went wrong?
It began with a lawsuit filed late.
Galiney owned four bowling alleys and three used-car lots, but he had a problem. He owed a lot of money to a finance company. He had guaranteed many loans from the finance company to his customers, so they could buy his cars.
But then the customers started defaulting on the loans, and Galiney was on the hook.
That was trouble. Over two years, the bad debts ran into serious money. Galiney paid back $125,000 in 1986 and 1987, according to court papers.
Galiney thought this was a fraud. He thought the finance company was making him pay off loans that had nothing to do with his car business. And the debts were threatening his businesses and his home.
So Galiney sued.
``I thought it was a simple matter,'' Galiney says. ``I was going to get my money back.''
Galiney went to a lawyer friend, Robert Steinhilber of Virginia Beach. Steinhilber passed the case to a partner, Jim Basgier, who drew up the lawsuit and filed it in Norfolk Circuit Court. That was in 1988.
For three years, the case bounced from court to court.
By the final bounce, it was too late. The last lawsuit was filed in 1991, beyond the three-year limit.
A judge threw it out. Galiney would get no money.
After an angry confrontation, the Galineys say, Basgier admitted his mistake. ``He laid it on the line,'' Gayle Galiney recalls. ``He could not find a legal remedy for the situation. He started begging and crying.''
So the Galineys struck a deal: To remedy the error, Basgier paid them $50,000 cash and agreed to pay another $131,000 over 10 years. He even signed a promissory note.
But by then, the Galineys had lost their bowling alleys, their car lots and their fancy home in Point Elizabeth. ``I lost everything over this mess,'' Frank Galiney says.
Basgier and his attorney could not be reached for comment. Basgier declined to comment after his criminal hearing in August.
Galiney acknowledges that not everything was the lawyer's fault. Galiney admits making some business mistakes that contributed to his own financial downfall. And he did not really lose everything. He and his wife still live in a comfortable house with a swimming pool near Craney Island.
Still, Galiney says, if he had known the truth about his lawsuit, he might have made different business decisions.
``Maybe I should have been smarter,'' Galiney says, ``but I relied on (him) as an officer of the court.''
After the shock wore off, the Galineys went after Basgier's legal malpractice insurance.
Nine of 10 Virginia lawyers have it. It protects them from a client's claim of injury arising from a mistake, just like a doctor's medical malpractice insurance.
But Basgier didn't have it. He had let his policy lapse, Galiney said.
That was possible because the Virginia State Bar and the Virginia Supreme Court do not require lawyers to have malpractice insurance. They simply hope that most lawyers realize the wisdom of insurance.
``We want all of our lawyers to have malpractice coverage,'' says Michael W. Smith, a Richmond attorney who is president of the State Bar. ``It doesn't make any sense not to have it. It would be similar to driving your automobile without insurance. It wouldn't be a very smart idea.''
For a while last year, in response to the Murray disaster, the bar considered requiring malpractice insurance of all lawyers. But a committee rejected the idea, saying it would ``lull the public into a false sense of security.''
``The key point here,'' the committee wrote, ``is that malpractice insurance policies currently exclude dishonest and intentional acts. Thus, mandatory malpractice insurance would have offered no protection to clients against losses like those involved in the Murray case.''
It would, however, have protected clients like Frank Galiney against sloppiness like Basgier's.
``Why don't they require lawyers to have malpractice insurance?'' Galiney asks. ``That at least would be some little benefit to the public.''
Next, the Galineys turned to a little-known State Bar fund. It is called the Client Protection Fund and it pays people who have lost money to dishonest lawyers.
But that has problems, too.
Mainly, the fund is too small - it would go broke if it paid every valid claim. So the State Bar limits how much each wronged client can collect. The cap is $25,000, no matter how big the claim.
The State Bar also will not pay more than 10 percent of the total fund to clients of any single bad lawyer. That way, one attorney's many criminal acts, like Murray's, can't break the bank.
Unfortunately, it also means that victims of one lawyer get very little compensation.
Murray's clients, for example, filed claims for millions of dollars. In the end, 23 clients split $55,000 because the fund had just $550,000 in the bank.
Bar officials know the fund is too small. ``Demands upon the fund will continue to be unmet in significant part, so long as the 10 percent limit remains in force,'' the fund's chairman wrote last year.
So the bar is trying to make it bigger. Every year, the bar is chipping in an extra $200,000 until the fund reaches $3 million. At that rate, it could take a while because the fund also is paying out about $200,000 in claims.
Still, the fund today is triple the size it was during the Murray scandal - $1.5 million, as of last month. That means it can pay up to $150,000 for one bad lawyer.
To victims of Basgier's embezzlements, the fund has already paid a total of $30,080, including one payment for the maximum $25,000. Another claim is pending.
But the Galineys got nothing.
``They told us we're not eligible,'' Gayle Galiney says. ``It's only for people that lawyers actually took money away from.''
Finally, the Galineys sought criminal restitution from Basgier.
That probably will fail, too.
In August, Basgier pleaded guilty to three counts of embezzlement. In return, prosecutors dropped one count of forgery - the only count related to the Galiney matter.
Technically, that means the Galineys are not victims of Basgier's crimes.
Despite this, a prosecutor asked Judge Edward Hanson in August to order $50,000 restitution from Basgier to Frank Galiney. ``He lost his business as a result of the defendant's actions,'' prosecutor William Monroe argued.
The judge disagreed. If the Galineys want their money, Hanson said, they will have to sue Basgier.
Hanson will officially rule on the restitution issue Oct. 10, when Basgier is formally sentenced. The plea agreement calls for no jail time, but 10 years of court-ordered good behavior.
Basgier, 44, has already lost his law license. He surrendered it in March 1993 with disciplinary charges pending at the State Bar. He now works as a title searcher.
``I really have no desire to see Jim (Basgier) go to jail,'' Frank Galiney says. ``He's going to be punished enough in life with what he's lost. In essence, he's lost more than I have. . .
``But if nothing else, he should be held accountable to everyone. I would be happy with one-third of what he owes me. Just something.'' ILLUSTRATION: MOTOYA NAKAMURA
Staff
[Color Photo]
Gayle and Frank Galiney probably won't be able to collect much from
the lawyer who misled them. He had no malpractice insurance.
PAYING FOR LAWYERS' MISDEEDS
Year-by-year payouts from the Virginia State Bar's Client Protection
Fund, in thousands of dollars.
STAFF Chart
SOURCE: Virginia State Bar
or read Ezekiel 25:17
~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~
The Virginian-Pilot
THE VIRGINIAN-PILOT
Copyright (c) 1995, Landmark Communications, Inc.
DATE: Tuesday, October 3, 1995 TAG: 9510030252
SECTION: LOCAL PAGE: B1 EDITION: FINAL
SOURCE: BY MARC DAVIS, STAFF WRITER
DATELINE: PORTSMOUTH LENGTH: Long : 178 lines
``I LOST EVERYTHING.'' ATTORNEY'S MISTAKES, LIES HELP COST COUPLE THEIR HOME AND BUSINESS
When Frank and Gayle Galiney found themselves victims of a bad lawyer, their first reaction was to try to get compensation.
The lawyer, Joseph James Basgier Jr. of Virginia Beach - who has surrendered his license and is awaiting sentencing on embezzlement charges - had botched the Galineys' lawsuit. He missed a filing deadline, then covered up by telling the Galineys their case was still pending.
The deception went on for years. Over time, the Galineys lost their home, their business and their credit, in part because of Basgier's mistakes. When they finally discovered the lie, they convinced Basgier to pay them $50,000 for his mistake, plus another $131,000 over 10 years.
But when the monthly payments stopped, the Galineys found themselves up a creek.
They couldn't collect from Basgier's legal malpractice insurance. He had none.
They probably can't collect criminal restitution, even though Basgier has pleaded guilty to embezzling $80,000 from his former law firm and other clients. He didn't embezzle from the Galineys.
Finally, they can't collect from a State Bar fund that pays victims of crooked lawyers. That's because Basgier didn't steal anything from them. He just loused up their case.
And so the Galineys have learned a lesson that victims of Peninsula lawyer David Murray learned in 1992, after Murray stole $42 million from clients, then killed himself:
In Virginia, neither the State Bar nor the state courts guarantees that victims of dishonest or incompetent lawyers are fully protected.
``I thought,'' Gayle Galiney says, ``there are supposed to be systems in place to keep these sort of things from happening.''
Frank Galiney is angrier. ``The bar is definitely there for the good of the attorneys and not the good of the public,'' he says. ``They should have better checks and balances somewhere along the line.''
What went wrong?
It began with a lawsuit filed late.
Galiney owned four bowling alleys and three used-car lots, but he had a problem. He owed a lot of money to a finance company. He had guaranteed many loans from the finance company to his customers, so they could buy his cars.
But then the customers started defaulting on the loans, and Galiney was on the hook.
That was trouble. Over two years, the bad debts ran into serious money. Galiney paid back $125,000 in 1986 and 1987, according to court papers.
Galiney thought this was a fraud. He thought the finance company was making him pay off loans that had nothing to do with his car business. And the debts were threatening his businesses and his home.
So Galiney sued.
``I thought it was a simple matter,'' Galiney says. ``I was going to get my money back.''
Galiney went to a lawyer friend, Robert Steinhilber of Virginia Beach. Steinhilber passed the case to a partner, Jim Basgier, who drew up the lawsuit and filed it in Norfolk Circuit Court. That was in 1988.
For three years, the case bounced from court to court.
By the final bounce, it was too late. The last lawsuit was filed in 1991, beyond the three-year limit.
A judge threw it out. Galiney would get no money.
After an angry confrontation, the Galineys say, Basgier admitted his mistake. ``He laid it on the line,'' Gayle Galiney recalls. ``He could not find a legal remedy for the situation. He started begging and crying.''
So the Galineys struck a deal: To remedy the error, Basgier paid them $50,000 cash and agreed to pay another $131,000 over 10 years. He even signed a promissory note.
But by then, the Galineys had lost their bowling alleys, their car lots and their fancy home in Point Elizabeth. ``I lost everything over this mess,'' Frank Galiney says.
Basgier and his attorney could not be reached for comment. Basgier declined to comment after his criminal hearing in August.
Galiney acknowledges that not everything was the lawyer's fault. Galiney admits making some business mistakes that contributed to his own financial downfall. And he did not really lose everything. He and his wife still live in a comfortable house with a swimming pool near Craney Island.
Still, Galiney says, if he had known the truth about his lawsuit, he might have made different business decisions.
``Maybe I should have been smarter,'' Galiney says, ``but I relied on (him) as an officer of the court.''
After the shock wore off, the Galineys went after Basgier's legal malpractice insurance.
Nine of 10 Virginia lawyers have it. It protects them from a client's claim of injury arising from a mistake, just like a doctor's medical malpractice insurance.
But Basgier didn't have it. He had let his policy lapse, Galiney said.
That was possible because the Virginia State Bar and the Virginia Supreme Court do not require lawyers to have malpractice insurance. They simply hope that most lawyers realize the wisdom of insurance.
``We want all of our lawyers to have malpractice coverage,'' says Michael W. Smith, a Richmond attorney who is president of the State Bar. ``It doesn't make any sense not to have it. It would be similar to driving your automobile without insurance. It wouldn't be a very smart idea.''
For a while last year, in response to the Murray disaster, the bar considered requiring malpractice insurance of all lawyers. But a committee rejected the idea, saying it would ``lull the public into a false sense of security.''
``The key point here,'' the committee wrote, ``is that malpractice insurance policies currently exclude dishonest and intentional acts. Thus, mandatory malpractice insurance would have offered no protection to clients against losses like those involved in the Murray case.''
It would, however, have protected clients like Frank Galiney against sloppiness like Basgier's.
``Why don't they require lawyers to have malpractice insurance?'' Galiney asks. ``That at least would be some little benefit to the public.''
Next, the Galineys turned to a little-known State Bar fund. It is called the Client Protection Fund and it pays people who have lost money to dishonest lawyers.
But that has problems, too.
Mainly, the fund is too small - it would go broke if it paid every valid claim. So the State Bar limits how much each wronged client can collect. The cap is $25,000, no matter how big the claim.
The State Bar also will not pay more than 10 percent of the total fund to clients of any single bad lawyer. That way, one attorney's many criminal acts, like Murray's, can't break the bank.
Unfortunately, it also means that victims of one lawyer get very little compensation.
Murray's clients, for example, filed claims for millions of dollars. In the end, 23 clients split $55,000 because the fund had just $550,000 in the bank.
Bar officials know the fund is too small. ``Demands upon the fund will continue to be unmet in significant part, so long as the 10 percent limit remains in force,'' the fund's chairman wrote last year.
So the bar is trying to make it bigger. Every year, the bar is chipping in an extra $200,000 until the fund reaches $3 million. At that rate, it could take a while because the fund also is paying out about $200,000 in claims.
Still, the fund today is triple the size it was during the Murray scandal - $1.5 million, as of last month. That means it can pay up to $150,000 for one bad lawyer.
To victims of Basgier's embezzlements, the fund has already paid a total of $30,080, including one payment for the maximum $25,000. Another claim is pending.
But the Galineys got nothing.
``They told us we're not eligible,'' Gayle Galiney says. ``It's only for people that lawyers actually took money away from.''
Finally, the Galineys sought criminal restitution from Basgier.
That probably will fail, too.
In August, Basgier pleaded guilty to three counts of embezzlement. In return, prosecutors dropped one count of forgery - the only count related to the Galiney matter.
Technically, that means the Galineys are not victims of Basgier's crimes.
Despite this, a prosecutor asked Judge Edward Hanson in August to order $50,000 restitution from Basgier to Frank Galiney. ``He lost his business as a result of the defendant's actions,'' prosecutor William Monroe argued.
The judge disagreed. If the Galineys want their money, Hanson said, they will have to sue Basgier.
Hanson will officially rule on the restitution issue Oct. 10, when Basgier is formally sentenced. The plea agreement calls for no jail time, but 10 years of court-ordered good behavior.
Basgier, 44, has already lost his law license. He surrendered it in March 1993 with disciplinary charges pending at the State Bar. He now works as a title searcher.
``I really have no desire to see Jim (Basgier) go to jail,'' Frank Galiney says. ``He's going to be punished enough in life with what he's lost. In essence, he's lost more than I have. . .
``But if nothing else, he should be held accountable to everyone. I would be happy with one-third of what he owes me. Just something.'' ILLUSTRATION: MOTOYA NAKAMURA
Staff
[Color Photo]
Gayle and Frank Galiney probably won't be able to collect much from
the lawyer who misled them. He had no malpractice insurance.
PAYING FOR LAWYERS' MISDEEDS
Year-by-year payouts from the Virginia State Bar's Client Protection
Fund, in thousands of dollars.
STAFF Chart
SOURCE: Virginia State Bar
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I agree that the government wants to indoctrinate our children as early as possible. And yes, when they walk in the school, you give up your parental authority while they are there. Whatever books they want them to read or films they want them to watch, your protests are unfounded. Separation of church and state. So, if the Bible says one thing, that has no bearing on the school’s right to educate as they see fit.
The teachers are in loco parentis. This is so serious. And, be careful of government programs. They have more access to records than you think. Once I allowed my children to participate in an after school program dental screening (it was free). Within two weeks a woman called going over the children’s history and asking numerous questions of things in their medical records in the doctor’s office but not on the free screening forms. For example, there was a check up on the vision screening. Also, there was information on a leg problem. I kept asking her who she was and why she was calling me to ask about tings that had nothing to do with the free dental screening. I was aware of the medical bureau (like a medical bureau).
I got the impression that they would have taken the children. But, I informed the woman that my children have a private physician, which apparently she was able to pull those records from, and that all of their care is taken care of by the physician. No further problems occurred. But, I think it was another way that others without private physicians are sought out for case workers. Being an active officer at the time, I was able to terminate her “questioning.”
Government has no place in our children’s lives. If we break the law, then there should be an investigation. I no longer allow my children to participate in any free programs after that experience. I thought it was saving me a trip but it quickly was turned to a nightmare.
Our nation has become too dependent on our government to do things for us. Even in my case, I was allowing a government initated program to do something I normally do - take my kids in for checkups. And, as soon as the door was opened, things were turning ugly.
We cannot give our children over to government to raise. The statistics are dismal for children raised by the system. We just have to address abuse as it is reported and continue to ensure parents receive support so that they can be the best parents. There’s no reason to relinquish parental authority because of a few bad apples.
Parents have been doing a fantastic job raising their children. Yes, other countries may have problems but that’s no reason to undermine our Constitutional Rights.
Sounds like peer pressure in its worse form. Some are giving in and believing that the government should take over.