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Wednesday, April 29, 2015

The Sleazy and Colorful Side of Personal Injury Law

I know some really good personal injury trial lawyers in San Antonio, who never seem to get hired on the big personal injury cases in the Eagle Ford oil field. There are dozens of catastrophic injury and death cases every year. Could it be that runners are getting to the victims and channeling them to a few sleazy lawyers willing to pay cash up front, which, by the way, is a felony?

Here's a case on point from today's San Antonio Express:
Lawyers’ case runner ordered to stay in jail

A federal magistrate judge in San Antonio has ordered Elpidio “Pete” Gongora Jr., 46, detained pretrial because he is a flight risk.

"After he got a visit from the FBI and IRS in January, the so-called “case runner” kept soliciting cases for lawyers in San Antonio and spending clients’ settlement money on himself, the agent testified. And he expanded, forging relations with lawyers in Austin, Albuquerque, New Mexico and Little Rock, Arkansas, FBI agent Carol Mace said.
The hearing also gave a glimpse into the seedy world of personal injury practice — where chiropractors, body shops and others collude with lawyers to solicit clients. Solicitation by lawyers, directly or indirectly, is known as “baratry” and is illegal in Texas, but rarely prosecuted.

Gongora ran the San Antonio law offices of Ronald Ray Higgins, Charles “Ken” Harrell and Patrick E. Clarke.

He paid the lawyers a “flat fee” of $5,000 to $6,000 a month, and in exchange he was allowed to track down clients and settle cases on their behalf with no supervision, agent Mace testified. Some client names came from accident reports, tow truck drivers, insurance companies, a body shop Gongora owned and an entity he ran through relatives called Elite Rehabilitation Services, Mace said.

In other cases, Gongora bought lists of people involved in accidents from others for $1,400 to $1,500.

Gongora is charged with tax evasion and bankruptcy fraud stemming from what investigators believe was a series of thefts — adding up to more than $1 million — from proceeds collected as lawsuit settlements or earmarked for doctors and therapists who treated the plaintiffs involved. He allegedly lived a lavish lifestyle, spending money on exotic cars, high-end homes, $28,000 on Spurs tickets and $26,000 on his daughter’s quinceaƱera at the Club at Sonterra (which he allegedly disguised as expenses for an immigration seminar).

Help Wanted: Looking for Drivers
I had dinner with my wife in San Antonio at La Fonda Saturday night. In the parking lot across the street I saw some really classy cars decorated with dummies of accident victims:

I'm looking to hire good drivers for my new fleet of cars advertising my personal injury practice. 

Sunday, April 26, 2015

Holding Rogue Cops Accountable - 42 U.S.C. 1983

Police arrest a man acting bizarrely and load him, shackled at the ankles and wrist, into a police van. When they arrive at the station, he  is unconscious, his neck broken. A few days later he dies.

A cop arrests a woman for DWI and handcuffs her wrists behind her back. When she is uncooperative and supposedly resists, he slams her face down, breaking her jaw and shattering several teeth. 

What, if anything, can the victim or his family do? Do the police get a free ride? 

The answer is - No. Individual police may be sued under a federal statute, found at 42 U.S.C. Sec. 1983, titled “Civil Action for Deprivation of Rights.” It’s sometimes called the Ku Klux Klan Act, because Congress enacted it after the Civil War to stop lynchings, beatings and other crimes against blacks. 

The Statute: 
The pertinent text is here:

Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress . . . . 

The statute allows recovery for actual damages, punitive damages, attorneys fees and costs. 

In the two cases above, the officers violated the suspects’ Fourth Amendment right to be free from unreasonable search and seizure. 

What must Plaintiff prove? 

The Fifth Circuit Court of Appeals pattern jury instructions states what the plaintiff must prove:

Plaintiff claims Defendant violated the Fourth Amendment by using excessive force in making the arrest on [date]. The Constitution prohibits the use of unreasonable or excessive force while making an arrest, even when the arrest is otherwise proper. To prevail on a Fourth Amendment excessive-force claim, Plaintiff must prove the following by a preponderance of the evidence:

  1. an injury; that the injury resulted directly from the use of force that was excessive to the need; and
  2. 3. that the excessiveness of the force was objectively unreasonable.26
  3. To determine whether the force used was reasonable under the Fourth Amendment, you must carefully balance the nature and quality of the intrusion on Plaintiff’s right to be protected from excessive force against the government's right to use some degree of physical coercion or threat of coercion to make an arrest. Not every push or shove, even if it may later seem unnecessary in hindsight, violates the Fourth Amendment. In deciding this issue, you must pay careful attention to the facts and circumstances, including the severity of the crime at issue, whether [Plaintiff posed an immediate threat to the safety of the officers or others, and whether [he/she] was actively resisting or attempting to evade arrest.
  4. Finally, the reasonableness of a particular use of force is based on what a reasonable officer would do under the circumstances and not on this defendant's state of mind. You must decide whether a reasonable officer on the scene would view the force as reasonable, without the benefit of 20/20 hindsight. This inquiry must take into account the fact that police officers are sometimes forced to make split-second judgments—in circumstances that are tense, uncertain, and rapidly evolving—about the amount of force that is necessary in a particular situation.
How do you collect a judgment against and individual officer?
The city or county won't be liable for an individual cop's actions. Getting a judgment against them is a whole other subject, and generally requires a systematic pattern of abuse. However, most cities and counties are insured, and their officers are additional insureds under the liability policies. 

Thursday, April 23, 2015

Cops and Soldiers Gone Wild

Video shows Round Rock cop knocking DWI female suspect out
A man took cell phone video showing a Texas police officer trying to arrest a drunk woman. After resisting, the cop slams the woman on the ground knocking her out. In front of her six year old daughter.
I wasn't able to link to the story but you can see the video at USA Today's website. What is it with some of these Texas cops? Are they too pansy to handle a woman suspect without knocking her out? I have a similar case against a Kerrville cop, that is probably worse - my client had her hands cuffed behind her back when the cop slammed her face first into the concrete, breaking her jaw in two places.

DEA Head Takes the Fall for Sex Parties
The head of the Drug Enforcement Agency, Michele Leonhart, is expected to resign in the wake of a scandal involving agents using government money to hire prostitutes at a party in Colombia. The agents also spent money renting undercover apartments, which were also used for parties with prostitutes.

FBI admits flaws in hair analysis over decades
The Justice Department and FBI have formally acknowledged that nearly every examiner in an elite FBI forensic unit gave flawed testimony in almost all trials in which they offered evidence against criminal defendants over more than a two-decade period before 2000.

Of 28 examiners with the FBI Laboratory’s microscopic hair comparison unit, 26 overstated forensic matches in ways that favored prosecutors in more than 95 percent of the 268 trials reviewed so far, according to the National Association of Criminal Defense Lawyers (NACDL) and the Innocence Project, which are assisting the government with the country’s largest post-conviction review of questioned forensic evidence.

Sex, Drugs, and Dead Soldiers
As American military operations have ramped up across Africa, reaching a record 674 missions in 2014, reports of excessive drinking, sex with prostitutes, drug use, sexual assaults, and other forms of violence by AFRICOM personnel have escalated, even though many of them have been kept under wraps for weeks or months, sometimes even for years.
In recent years, allegations of widespread sex crimes have dogged the U.S. military.  A Pentagon survey estimated that 26,000 members of the armed forces were sexually assaulted in 2012, though just one in 10 of those victims reported the assaults.  In 2013, the number of personnel reporting such incidents jumped by 50 percent to 5,518 and last year reached nearly 6,000.  Given the gross underreporting of sexual assaults, it’s impossible to know how many of these crimes involved AFRICOM personnel, but documents examined by TomDispatch suggests a problem does indeed exist.

In August 2011, for example, a Marine with Joint Enabling Capabilities Command assigned to AFRICOM was staying at a hotel in Germany, the site of the command’s headquarters.  He began making random room-to-room calls that were eventually traced.  According to court martial documents examined by TomDispatch, the recipient of one of them said the “subject matter of the phone call essentially dealt with a solicitation for a sexual tryst.”

About a week after he began making the calls, the Marine, who had previously been a consultant for the CIA, began chatting up a boy in the hotel lounge.  After learning that the youngster was 14 years old, “the conversation turned to oral sex with men and the appellant asked [the teen] if he had ever been interested in oral sex with men.  He also told [the teen] that if the appellant or any of his male friends were aroused, they would have oral sex with one another,” according to legal documents.  The boy attempted to change the subject, but the Marine moved closer to him, began “rubbing his [own] crotch area through his shorts,” and continued to talk to him “in graphic detail about sexual matters and techniques” before the youngster left the lounge.  The Marine was later court-martialed for his actions and convicted of making a false official statement, as well as "engaging in indecent liberty with a child" -- that is, engaging in an act meant to arouse or gratify sexual desire while in a child’s presence.

Officials Investigating After U.S. Marshal Rips Phone From Hands Of Recording Bystander

The video was uploaded to YouTube on April 19 in South Gate, California, within Los Angeles County. In the clip, recorded from a building across the street, a bystander appears to be filming and talking to uniformed officials responding to a report of a biker gang meeting. A man wearing a bulletproof vest and carrying a weapon then grabs her phone, slamming it to the ground before kicking it down the street.

Man Beaten By Deputies After Horseback Chase Settles For $650,000
A California man will receive $650,000 in a settlement after police beat him following a chase in which he tried to elude officers on horseback. Pusok fell to the ground after a deputy shot him with a Taser. A video recorded by a news helicopter then shows officers punching and kicking him dozens of times over roughly two minutes. Pusok was taken to a hospital, and two officers were also treated for minor injuries, the LA Times reports.

Tuesday, April 21, 2015

More Cops and Blacks Stories

6 Baltimore police officers suspended in Freddie Gray case
Man injured during arrest in west Baltimore dies
Freddie Gray, 25, was critically injured after his arrest April 12. He died early Sunday morning at Shock Trauma. According to the family's lawyer, Gray suffered a severe spinal cord injury.
What was his crime?
According to a police charging document obtained by the WBAL-TV 11 News I-Team on Monday, officers arrested Gray on a west Baltimore street because he "fled unprovoked upon noting police presence in the neighborhood."
"The officers made eye contact, he ran, and the officers pursued," Batts said.
Officers chased Gray down the street and caught him.
"The officer then noticed a knife clipped to the inside of his pants pocket. The defendant was arrested without force or incident," according to the charging document.
The officer then writes in the charging document that Gray suffered a medical emergency during transport but it doesn't say how, where or when.

Broken Taillight Policing
When cops stop black drivers for minor traffic violations, it’s often a pretext for something more sinister. Jamelle Bouie

From sociologists Charles R. Epp, Steven Maynard-Moody, and Donald Haider-Markel in their massive study of traffic stops in the Kansas City metropolitan area, Pulled Over: How Police Stops Define Race and Citizenship. The authors identify two kinds of stops: traffic safety and investigatory. In the former, drivers are stopped for clearly breaking traffic laws, from speeding to driving under the influence. These stops are straightforward. Officers explain the offense, follow a procedure, and issue a ticket.

There are racial disparities in police stops—blacks are stopped twice as often as whites—but they aren’t related to traffic safety offenses, in which cops exercise a little less discretion and violations are equal within groups. Where we see a difference—even after we adjust for driving time (on average, blacks drive more and longer than whites)—is in investigatory stops. In these, drivers are stopped for exceedingly minor violations—driving too slowly, malfunctioning lights, failure to signal—which are used as pretext for investigations of the driver and the vehicle. Sanctioned by courts and institutionalized in most police departments, investigatory stops are aimed at “suspicious” drivers and meant to stop crime, not traffic offenses. And as the authors note, “virtually all of the wide racial disparity in the likelihood of being stopped is concentrated in one category of stops: discretionary stops for minor violations of the law.”

Here’s how one black man described his experience:

I was driving a ’79 Cadillac Seville, white, that I was fixing up. You know, I’d been working on restoring it, you know, it was looking pretty good. I had really taken it down to test it out. So he pulled me over and he said, you know, regular procedure “driver’s license and registration” and whatever. And he said that I was going 67 in a 65 mile-per-hour zone, or something like a couple miles over the speed limit, that is the reason why stopped me. And I said, “Well, my speedometer said 65.” He said, “Well, because you got bigger tires and stuff like that on the car, the car is traveling a lot … it travels a lot faster.” I think he said then that whatever the speedometer is saying, you are going faster. And he stopped me for that and while he stopped me he was talking to me and he looked in there and I had a cell phone, I had a car phone sitting in there. And then he said, “Do you have any kind of drugs or guns in the car?” And I said, “No.” He said, “Do you mind if I search the car?” and I told him, “No, I don’t mind.” …
So he told me to go on the front of the car and put your hands on the front of the car … [H]e looked around and everything, and when he got through he came back and he didn’t find anything, and he came back and said, “The reason why we checked your car is we’ve been having problems with people trafficking drugs up and down the highway.” So that was that.

Thursday, April 16, 2015

Fredericksburg Cop Linda Lively Busted; Black Judge Lectures Family Victimized by Home Invaders for Racial Insensitivity


Linda Lively, former Fredericksburg officer arrested for tampering with evidence. Former Fredericksburg police officer charged with two counts of evidence tampering for allegedly taking hydrocodone from evidence room at the Fredericksburgh Police Department.

From the Louisville Courier-Journal, a story about a really stupid, arrogant judge, one Olu Stevens:

A black judge, offended by a white family’s concern that their toddler was frightened of black men after a violent home invasion and robbery, publicly shamed them and let off the convicted man with mere probation.

When Gregory Wallace was sentenced for alleged armed home invasion near Buechel, Kentucky, Judge Olu Stevens “slammed” the homeowners, Jordan and Tommy Gray, for not correcting their daughter’s fear of black men.

Wallace, who was convicted of robbery, had been found guilty of participating in the March 2013 armed home invasion, in which he and another black suspect burst into the Gray’s home and held the parents and their three-year-old daughter at gunpoint.
Later, Stevens took to Facebook to publicly shame the victims of a home invasion after giving Wallace merely probation for burglary and robbery with a handgun. It was the mother’s secret racist views that made the toddler terrified of black men, not the formative memory of being terrorized at gunpoint by violent criminals:
"Court brought it front and center this week. The case involved a burglary and the victims were a young couple and their three year-old child. The written victim impact statement on behalf of the child read that as a result of the offense committed against her parents in her presence, the child is in “constant fear of black men.” The statement, written by her mother, continues that the child clings to her parent when in the presence of any black man. The incident, the mother concluded, “has even affected our relationship with our African-American friends.”

"I read this statement aloud in open court. For a reason. It was of little surprise to me that neither parent nor the child was present in court for the sentencing. After all, the defendant and the judge are amongst the individuals the three year old has fear of as a result of the crime. Do three year olds form such generalized, stereotyped and racist opinions of others? I think not. Perhaps the mother had attributed her own views to her child as a manner of sanitizing them."

In an email, Ronald Rotunda, a law professor at Chapman University in Orange, Calif., and the author of a widely used course book on legal ethics, said Stevens violated the Code of Judicial Conduct, both by using the prestige of his office to further his personal interests and by commenting on a pending case on Facebook.

"The judge, acting like a pop psychologist, decides to attack the little girl and her parents," Rotunda said. "Then, after the judge … has a chance to cool down … he goes on Facebook and does it all over again. The judge should be a little more judicious."

Jeffrey Shaman, who teaches at Chicago's DePaul University law school and once ran the Center for Judicial Conduct Organizations, said judicial criticism of victim impact statements could discourage victims from "participating in the criminal justice system and ensuring that their voices will be heard."

Monday, April 13, 2015

Two Texas Judges in Hot Water with the Feds; Dumbass of the Year Contestant: Reserve Deputy Shoots Unarmed Black Man With What Thought was Taser;

This is a roundup of stories about crooked judges (two in Texas), one who took bribes to fix cases and another who moonlighted selling firearms without a license. Also, two new stories about cops shooting unarmed blacks. One, in Tulsa, was a wannabe who claims he meant to taze a black man, and pulled his pistol by mistake. The other is about the S.C. cop who shot a fleeing man eight times in the back.
I try to give police officers the benefit of the doubt, but if I were black I would probably be very nervous if I got pulled over.
Finally, to show that white people riot to, we have a bizarre story of a Christian rock band getting into a gang fight with the cops, ending in one of the rockers getting shot to death.

Former Bexar Count Judge Pleads Guilty to Theft of Honest Services

As part of a plea deal, Angus McGinty pleaded guilty to a single felony count of theft of honest services wire fraud, a charge widely used in public corruption cases and instances where private individuals breach a fiduciary duty to someone else (like in the Enron case). The charge carries a maximum sentence of 20 years in prison.

State commission suspends indicted WilCo judge
Tim Wright, a county court-at-law judge in Williamson County, sold firearms on three occasions in February to someone he knew or had reasonable cause to believe was a convicted felon, according to a statement from the U.S. attorney’s office.
Wright also helped the smuggling and attempted smuggling of firearms out of the country, the statement says, and lied to federal agents.

“The indictment of Timothy L. Wright, Williamson County judge, sends a strong message that Homeland Security Investigations (HSI) will not tolerate the unlawful export of firearms, regardless of the smuggler’s position or status,” James Spero, the special agent in charge of HSI in San Antonio, said in a statement.

‘Pay to Play’ Cop Shot Unarmed Black Man
The volunteer deputy who killed a black man when he mistakenly shot him instead of Tasering him was on the force because he had made a lot of donations.

Harris was face down on the pavement with officers on top of him. Bates is heard shouting, “Taser! Taser!” Instead, a gunshot rings out.

“Oh! I shot him! I’m sorry!” Bates says.
Meanwhile, the Post exposed another case of police brutality over the weekend. A mentally ill woman died in a Fairfax, Va. county jail in February after a sheriff’s deputy shocked her four times—while she was already restrained in handcuffs, leg shackles and a mask.
Bates “did not commit a crime” but was a victim himself of a phenomenon called “slip and capture.” The term refers to people doing the opposite of what they intend during periods of extreme stress, said Tulsa Police Sgt. Jim Clark on Friday.
He is one of many “wealthy people in the reserve program,” which includes 130 volunteer deputies, Maj. Shannon Clark of the sheriff’s office said.

Michael Slager, Cop In Walter Scott Shooting, Reportedly Heard Laughing Afterward
Michael Slager, the South Carolina police officer caught on video shooting an unarmed black man who was running away after a traffic stop, is reportedly heard in new audio laughing about his "pumping" adrenaline immediately after the incident.

Christian family band in giant Wal-Mart parking lot brawl; 1 killed, cop shothttp://www.washingtontimes.com/news/2015/apr/11/christian-family-band-in-giant-wal-mart-parking-lo/
Police released video Friday that appears to show a chaotic brawl in an Arizona Walmart parking lot that left one suspect dead and two others shot, including an officer.
The shooting occurred during a fight between up to eight members of the Gaver family and at least four police officers. The video was captured by a dashboard camera and indicated the fight lasted for about seven minutes.
The Gaver family is well-known in Boise, where at least three members played in a Christian band called Matthew 24 Now outside an Albertsons supermarket and posted signs with a biblical verse.

The incident began when a female Walmart employee tried to use a women's restroom and was prevented from doing so, getting pushed out of the way. Nathan Gaver told police that his mother, Ruth, was using the restroom, and that he and his brother Jeremiah were guarding it.

Wednesday, April 8, 2015

How to make open records request to Kerrville Police Dept;, South Carolina cop charged with murder - shot man 8 times in back

The person to contact at Kerrville Police Dept. for an open records request is:

Allison Baker - Records Supervisor
Kerrville Police Dept.
429 Sidney Baker St.
Kerrville, TX 78028
(830) 258-1380 - tel.
(830) 258-2480 - fax.

Make your request under Texas Govt. Code Ch. 552

Meanwhile, there is a horrific video going viral of a white cop in South Carolina shooting a black man  named Walter Scott eight times in the back. The man's crime - driving with a brake light out.
In this case, it' all on video taken by a bystander. Even the part where the cop walks over and plants his taser by the body. Michael Slager, the cop, has been charged with murder. Here's his mug shot: