DU: No comment on anti-police event

"Cops lie: Don't trust cops!" was the theme for an hour-long training session for would-be protesters at the Democratic National Convention, held in Denver on April 14 by hard-left activist groups, according to a Denver Post story.   The event took place at the University of Denver law school, under arrangements made by individual DU students and with no official sponsorship by the university.  It included simulations of protesters being "bullied by... nightstick-bearing police officers," and outlined a plan for "hundreds of 'legal observers'... who bring video cameras to document any disruption." 

"I don't think it's helpful to portray the police in that light," said Denver city attorney David Fine. "Frankly, that's not the reality, so... it will give the participant a false sense of what their relationship will be like with police during the convention." 

After repeated calls to the DU office of news and public affairs this morning, I spoke with staffer David Brendsel, asking whether Chancellor Robert Coombs, Law School Dean Jose Juarez, or any other DU official wanted to go on the record as Fine had done, specifically dissociating the university from the event's unhelpful, unreal, and false portrayal of police ethics and methods. 

His answer: "We have no statement to make in response to that."  The studied pose of moral neutrality reminded me of those MSM news anchors (not to mention Barack Obama) who have made a point of not wearing American flag lapel pins in these wartime years.  Wouldn't want to take sides, you know.  Wouldn't want to compromise our objectivity. How pathetic. 

Nottingham impeachment should proceed

"During good behavior" is the constitutional standard for a federal judge to continue serving. Sen. Ken Salazar has wondered publicly whether Judge Edward Nottingham of the US District Court in Denver measures up. It certainly appears he does not, and I hope the senator takes action. We think of the federal judiciary as serving for life, only because a mere 13 judges have ever been impeached, and only seven of those have actually been convicted and removed from office. But the congressional power of removal is right there in Article II, Section 4, of the Constitution.

The allegations against Nottingham, a George H.W. Bush appointee and former law-firm associate of Salazar's, were characterized by the senator in a Denver Post story on Mar. 28 as suggesting the judge has failed to "serve in an exemplary manner, both on and off the court." He is accused of drunken carousing at strip clubs, surfing porn sites in his chambers, patronizing an escort service, and behaving abusively toward a wheelchair-bound woman in a parking dispute.

The case highlights a definitional gap between the Article II language about "impeachment for... treason, bribery, or other high crimes and misdemeanors," and the Article III clause about good behavior. While being a sleaze, a lush, and a boor may not be a firing offense in some jobs, let alone a crime or misdemeanor, it surely violates the behavior expected of federal judges, as Salazar's words indicate. "Bringing disrepute on the federal judiciary and betraying the public's trust" were two of the three offenses for which Judge Harry Claiborne of Nevada was impeached and convicted in 1986, according to the Justice at Stake campaign. Sounds like Judge Nottingham to me.

The Justice at Stake backgrounder linked above quotes the late Chief Justice William Rehnquist as saying that removal of judges by Congress over policy disputes was forever put off limits by the 1806 acquittal of Samuel Chase, the only Supreme Court justice ever impeached. This is no more than one man's opinion, however, since the judicial branch (and the executive) explicitly have no role whatsover in, and no judgment over, the legislative branch's impeachment power. Indeed the institutionally self-serving bias of Rehnquist's opinion could not be more obvious.

Of course he wouldn't want any countervailing authority from Congress against the Supreme Court's potential overreaching and abuse of judicial power. But so what? It remains for Congress to do what its members have the constitutional fidelity and political courage to go ahead and do.

Though I as a Republican seldom agree with Salazar as a Democrat, in this case I salute his fidelity and courage for threatening the ultimate sanction against a seemingly out-of-control Judge Nottingham. The concern here is obviously not policy, but morality, ethics, decorum, and demeanor (NB: the opposite of misdemeanor). Regardless, I argue we need more -- much more -- recourse to impeachment of judges, and as the legislative branch begins finding its nerve on the personal-conduct front, perhaps congressmen and senators will start picking the right fights on the power-abuse front as well.

Justice at Stake, as you will see from their website, is a coalition of the judicial and legal establishment which seems to want just the opposite of what I and other judicial reformers do. They note worriedly that three of the seven successful removals of wayward federal judges have occurred in the past two decades -- that of Claiborne in 1986, followed by those of Judge Alcee Hastings in Florida for perjury and bribery and Judge Walter Nixon in Mississippi for lying to a grand jury, both in 1989. They also note that threats of impeachment to state judges have recently almost doubled, from 27 in the four years before 2001 to 51 in the four years after.

This they attribute to a "growing 'outrage industry' seeking to intimidate and fire judges." That's one view. Another view would be that judicial activism on policy -- and the accompanying God complex leading to personal recklessness such as Colorado has seen in the recent Nottingham, Manzanares, and Biddle episodes -- has pushed citizens and political actors to the breaking point, with consequent willingness to treat the impeachment provisions of our federal and state constitutions as less of a dead letter.

One of the most dramatic moments of my six years in the Colorado Senate (and one of my keenest personal regrets for not having supported it) came in the spring of 2004 when then-state Rep. Greg Brophy and other House Republicans filed House Resolution 1007 as a bill of impeachment against state Judge John Coughlin on two counts of "malfeasance in office for denying the right to freedom of religion guaranteed by the First Amendment of the United States Constitution and Section 4 of Article II of the Colorado Constitution" and one count of disregarding the Colorado Revised Statutes, stemming from his ruling in a two-mommies adoption case.

That measure, sadly, died in the Republican-controlled House Judiciary Committee, with Speaker Lola Spradley offering little encouragement and with Gov. Bill Owens -- along with Senate President John Andrews -- on record against it.

But Brophy was right and I was wrong. If I had it to do again, I would support the Coughlin impeachment. Ken Salazar is right about the Nottingham impeachment today. It should proceed.

Lawyers face up to limits

How does an advocate for judicial reform gain a hearing from the frowning skeptics he’s sure to meet in the pages of a lawyers’ magazine? I’ll start by summoning to the witness stand a poet, a playwright, a revolutionary, and a cowboy humorist. So begins my half of a pro-con feature on judicial term limits in The Colorado Lawyer, the monthly magazine of the Colorado Bar Association, February 2008 issue, pages 43-48.

The opposition case is made by Marshall Snider, a retired administrative law judge, who starts out... "proposals have been floated to limit the terms of office of judges. This a bad idea. Term limiting judges does not solve any discernible problem in the judicial system and does not add value to the administration of justice."

Colorado Lawyer Feb. 2008 shows the whole exchange as it appeared in print. My hat is off to the fair-minded editors I worked with, Fred Burtzos and Leona Martinez, and to whatever CBA officers supervise them, for including me in this symposium and then giving me my head.

The invitation actually came before our issue committee, Limit the Judges, decided to attempt a 2008 ballot issue that we hope will succeed, with modifications, where our 2006 proposal failed. It has even more relevance now that our new initiative has cleared the title-setting process and begun circulating petitions.

If we can get 100,000 signatures from Coloradans this spring and then a majority vote this fall, Colorado will become the first state to impose term limits on the most powerful branch of American government, the judiciary.

Ten reasons why judicial term limits don't go far enough

Author: The Watcher John Andrews says he will try again with judicial term limits, which this writer called a 5% solution last year. In reply, let me lay out the reasons that the system is ripe for real legal ethics reform, not just term limits.

1. The Supreme Court is the supervisory authority for both legal ethics and judicial ethics. No one supervises the Supreme Court. Because of this, the Supreme Court has come to believe that it is above the law. Andrews mentions recent examples, but he doesn't mention that the state court administrator [in the Manzanares case, see below] completely avoided an obstruction of justice investigation that might have reached the Chief Justice. He also forgets that the Court has routinely ignored the plain language of TABOR.

2. The Supreme Court has failed to standardize the court system. Other states require judges to undergo annual training. Ours does not.

3. The State Constitution has entrusted the Supreme Court with the power to discipline judges in secret, except that it must announce the final outcome. The Court's attitude toward this responsibility is best illustrated by the Larry Manzanares case. Manzanares was a former judge accused of stealing a court laptop, which he later used for pornography. The state court administrator attempted to derail the criminal prosecution into a process where the maximum penalty the former judge could get was a secret reprimand and no criminal record, not the several years in jail he might have gotten [had the disgraced man not taken his own life]. It is likely he wouldn't even have been disbarred.

Word has gotten down to district court judges that they won't be considered for serious punishment when they ignore their own ethics rules. A judge is clearly required to report lawyer misconduct by both court rules and ethics rules. Imagine a situation where after years of obvious misconduct a judge makes a comment about it in a ruling. Imagine also that the lawyer is eventually replaced and his replacement writes in his first court document that the lawyer he replaced had committed the worst misconduct imaginable. You would think that the judge would feel compelled to forward the issue to Attorney Regulation. You would be wrong.

4. The Attorney Regulation system designed and administered by the Supreme Court is a pure fraud on the public. It is designed so that no one has jurisdiction. More than 60% of its complaints are dismissed for lack of jurisdiction. The Supreme Court has given exclusive jurisdiction to the district court judges like the one above. In order to make a complaint, a citizen must pay a lawyer a few thousand dollars to write it with no guarantee that it will be forwarded by the judge. In fact, the odds are that it will not be forwarded.

Not long ago, two Supreme Court Justices and the Chief Justice's lawyer wrote an article for "The Colorado Lawyer" in which they assured Colorado Attorneys that they had little to fear from Attorney Regulation. You would think that a document written on government time by government officials would be available to the public. It is not. In fact, it is copyrighted, so we can't reproduce it here. The Supreme Court sees the Colorado Bar Association as its constituency, and in 2006, the CBA spent $1.3 million to defeat Amendment 40-term limits.

5. One of the mechanisms that might protect the public from unethical judges is the Judicial Performance Commission in each of the 22 districts and one for statewide commission for appellate judges. Each commission has ten members, four of whom are lawyers. They are supposed to examine the performance of judges who are up for retention elections and make recommendations to the public. The Supreme Court is careful not to give these commissions written instructions which leaves its lawyer members firmly in charge. With the lawyers in charge, lawyer interests are protected above those of the public.

Recall the judge described in paragraph 3 above who can't bring himself to report attorney misconduct? It turns out that he was up for election in 2006 and 200 pages of court documents illustrating the situation were provided to the performance commission. The commission voted 8-0 not to inform the public of his multiple ethical misconducts including his failure to rule on a motion for two years, effectively stopping progress for that period. Upon inquiry, the chairwoman, Kit Roupe, wrote:

Clearly with Judge [ Larry ] Schwartz the Commission does believe he is an excellent judge that does contribute much to our community even in light of the material...submitted.

By 2007, Kit Roupe was unwilling to provide the identity of her fellow 2006 commission members. When directly asked she replied:

Regrettably, I currently do not have an accurate list of my commission members because of changes - resignations and expired terms.

Care to bet that one of the reasons the four attorneys on this commission think so highly of Judge Schwartz is that he adamantly refuses to forward the misconduct case to Attorney Regulation? Would they think so highly of him if he actually followed court rules and his own ethics rules?

Members of the Colorado Supreme Court are up for retention votes this year. In 2007, a bill went before the legislature that would have reduced the number of members who are either regulated or who are directly appointed by the Chief Justice from six to four. Nine citizens testified for the bill and one against. The lone ranger was the CBA lobbyist. Guess who carried the day? Not the nine citizens. Is it any wonder that the Supreme Court would consider the CBA as its main constituency?

6. One of the ways that the CBA gets a direct payback is through another fraud. Suppose there were a car insurer in the state which provided comprehensive insurance for $20 a year. Imagine that this is a powerful insurer, able to twist the outcome of court cases, indeed able to keep them from ever being heard. This insurer keeps its costs down by refusing to cover accidents unless they occur on Feb 29th under a full moon with the driver driving northeast. When it does pay out, it writes a letter explaining that it is doing so out of the goodness of its heart and the payee should take or leave the settlement.

That is the exact situation that the Supreme Court has set up in Colorado for lawyers. In lieu of requiring lawyers to carry a responsible amount of errors and omissions insurance as all other professions are required to do, it charges them $20/year as a contribution to a fund. The fund pays limited amounts to a very select class of victims of attorney misconduct.

7. For at least 15 years, the Supreme Court has completely prohibited lawsuits against attorneys who violate their ethics code. They put that prohibition directly in the code, itself. This year, they plan to make a change. They will give district court judges the "discretion" to allow lawsuits against attorneys who violate the code. They also loosened the rules to make lawsuits, if they are permitted, more difficult to prove.

While they want to provide the cynical illusion that they are making it easier for damaged citizens to sue lawyers, they are not. Think about the Judge Larry Schwartz's who can't screw up the courage to report attorney misconduct out of fear of what the lawyers on the judicial performance commission might say. How would you like to spend a few tens of thousands of dollars preparing for a lawsuit only to be assigned to him or one of his ilk who would dismiss the case on his discretion? It would be like making money evaporate.

8. Our favorite office in Colorado government is the Office of Attorney Regulation Counsel. It receives no public funding, so it is not accountable to the legislature. It's funds come from the Bar Association, so it sees itself as accountable to it. It is the only "paperless office" in all of government. It has its own definition of that term. It almost never sends letters or emails and would prefer not to receive them. When it responds to complaints, an attorney schedules a phone call, ensuring that there is no hard record of what they did or even what the complaint was. Any investigation of that operation would require endless man hours to listen to and transcribe these taped conversations.

Last year, just before the election, Attorney Regulation scheduled a three-day ethics hearing for Republican District Attorney Carol Chambers. It was nothing more than a political show trial intended to impact the election. The results were released on the day after Christmas and no real penalties were assessed because of the weak evidence. It did cost the people of Arapahoe county $100,000 and it probably did impact the election. At the very least, the timing was poor judgment. We think it was a gross abuse of the system, again by the Supreme Court.

Other than this kind of political prosecution, John Gleason, head of Attorney Regulation is happy to parrot his masters on the Supreme Court, telling attorneys that they have little to fear from his office.

9. Our favorite term is "judicial independence." That, according to attorneys, judges, and their apologists is the gold standard. If anyone suggests that the public would be better off if these people actually were accountable, the Colorado Bar Association screams those magic words in the hope that everyone will back off. The public pays a heavy price for unaccountable judges, and the CBA intends to keep it that way, if they can.

10. While the CBA is unwilling to allow its members to be disciplined or sued, it is quite happy to go to the legislature and ask that it be easier to sue home builders and doctors. Bill Ritter didn't much mind signing those bills. He and John Suthers will be the first two politicians to speak up for that old canard, judicial independence. Just Watch.

We could go on and on with this. How about the man who attempted to get the attention of Attorney Regulation for seven years? How about the lawyer husband of a judge who was awarded $350 an hour attorneys fees by another judge when his normal fee was $250 an hour? We wouldn't want to forget the man who made a complaint to Judicial Discipline about a judge failing to make a ruling for years and was told they had no jurisdiction. How about the man who was the victim of easily documentable perjury and sued only to be told by an appeals court in a non public ruling that he couldn't force the DA to press charges?

We don't think John Andrews will mind if we observe that term limits is mild medicine for a profession as determined to mess with the public as our Colorado legal system is. Too mild!

If the Justice Department were just

Newspapers have reported on a Justice Department celebration of the recent grievous injustice its prosecutors perpetrated against hero of high technology, world capitalism, and classical American economic opportunity, Joseph P. Nacchio. Below is the full text of an Oct. 2 Denver Post story about this. Following that, my imaginary rewrite showing how it might have read had the Justice Department of the United States of America, under Republican control, not succumbed to the arbitrary forces of central financial planning and economic redistribution, of legal and political hostility to business, wealth creation, and the ingenius innovators who enable them, and of monumental foolishness and petty ambition by government attorneys and bureaucrats who make their living using the power of the state to pillage and destroy what better men have created. So, first the story from our world:

Nacchio prosecutors receive high honor By Andy Vuong The Denver Post Article Last Updated: 10/02/2007 01:38:12 PM MDT (http://www.denverpost.com/ci_7063018)

The team of government attorneys that won an insider trading conviction against former Qwest chief executive Joe Nacchio have received the highest award from the Department of Justice.

Prosecutors Cliff Stricklin, James Hearty, Kevin Traskos, Colleen Conry and Leo Wise — along with more than a 200 other government employees who worked on the case — were honored today at the Justice Department's 55th Annual Awards Ceremony at Constitution Hall in Washington, D.C.

Nacchio was convicted in April on 19 counts of illegal insider trading connected to his sale of $52 million in Qwest stock.

Nacchio was sentenced to 6 years in federal prison, and ordered to pay $19 million in fines and forfeit the $52 million in ill-gotten gains to compensate victims. Nacchio is free on bail pending his appeal. Oral arguments for the appeal are set for December 18.

"Today's award recipients are extraordinarily dedicated and talented men and women," said Peter Keisler, Acting Attorney General, said in a statement. "They've made incredible sacrifices, and achieved great successes, working on the front lines of the Justice Department on behalf of the American people."

In addition to the Attorney General's Award for Distinguished Service for their outstanding work in the Nacchio case, the trial prosecutors also received awards from the FBI Director's Award for Excellence in Criminal Investigations, and the US Postal Inspection Service' Inspector General's Award.

"The Nacchio trial team put their personal lives on hold, working to ensure justice was done on behalf of the many victims who lost money because of the defendant's greed," said U.S. Attorney Troy Eid in a statement.

And now the story from a better world, one in which the Justice Department would actually execute justice:

Nacchio prosecutors arraigned on charges of abuse of power, institutionalized theft, slander By Dave Crater The Justice Post Article Last Updated: 1/01/2008 01:40:12 PM MDT

The team of government attorneys that pursued an “insider trading” conviction against former Qwest chief executive Joe Nacchio have been arraigned in a Washington federal court on charges of abusing their power and using the authority of the federal government to internationally slander and steal from a private citizen and leading captain of American industry and global technology.

Prosecutors Cliff Stricklin, James Hearty, Kevin Traskos, Colleen Conry and Leo Wise — along with more than a 200 other government employees who conspired in the case — were publicly repudiated today at the Justice Department's 55th Annual Awards Ceremony at Constitution Hall in Washington, D.C.

Nacchio was convicted in April on 19 counts of what the disgraced attorneys and bureaucrats at the time called “illegal insider trading” connected to his sale of $52 million in Qwest stock. Just before Christmas, however, Appeals Court Judge Solomon L. Reigns overturned Nacchio’s conviction in a blistering opinion that deprecated the action as “a monstrous crime against ancient principles of justice and against the historic American idea.”

“Mr. Nacchio, like every other owner of American equities, had a moral and legal right to trade his stock at any time and for any reason he wished,” Judge Reigns went on to hold. “The absurd pretense by the government that its agents were heroes for having prosecuted Mr. Nacchio because he so traded at a time and for reasons they could only speculate were at odds with their infinite wisdom reveals an alarming economic illiteracy and moral underdevelopment. These agents have not protected the small investor; they have helped drive a dagger through the heart of the most inspiring hope the small-time investor has had in the history of world commerce: American-style moral capitalism.

"A nation that treats its captains of industry and most productive citizens in this manner will soon find itself financially impoverished, and, more importantly and lastingly, ethically and morally bankrupt. The United States has been the economic and judicial hope of the world for two centuries precisely because it has steadfastly resisted this kind of infiltration of its government, and especially its Justice Department and court system, by small-time, self-serving, public-pandering moral troglodytes posing as pillars of government righteousness.”

Following his trial, Nacchio was sentenced to 6 years in federal prison, and ordered to pay $19 million in fines and forfeit $52 million in allegedly ill-gotten gains to compensate alleged victims. Nacchio was free on bail pending his appeal before Judge Reigns. Oral arguments for the appeal occurred December 18, and Judge Reigns issued his opinion the next day.

"For some years recently, the Justice Department had lost its way, replacing historic and honorable American ideas of justice, private property, and moral right with low, un-American suspicions and resentments toward industry that play on popular jealousies toward the rich," Peter Keisler, Acting Attorney General, said in a statement. "With the President’s support, I am committed to turning this Justice Department ship around. The wealthy are just as entitled to justice and legal protection of their property as the rest of us."

"The corrupt attorneys and bureaucrats we repudiate today acted not on behalf of the Justice Department and the American people," Keisler continued, "but on behalf of themselves, hoping to receive awards, recognition, promotion, and financial incentives for their having taken down an innocent man. I publicly apologize on behalf of the Justice Department not only to Mr. Nacchio and his family for this preposterous action, but to every American entrepreneur and industrialist who has been slandered and robbed by the American legal system over the last twenty years."

In addition to the Attorney General's repudiation for their dishonest work in the Nacchio case, the trial prosecutors also received a public reprimand from the FBI Director's Department for Justice in Criminal Investigations. The US Postal Inspection Service also issued the prosecutors its tongue-in-cheek Inspector General's Award for Most Unethical Government Action This Year.

Mr. Nacchio, on vacation with his wife and two children to celebrate his victory, could not be reached for comment.