Robert Nardelli, the consummate bean counter, has just stuck it to Lido “Lee” Iacocca, the greatest automotive genius of the past 50 years - a builder of cars. Nardelli has cut off Lee’s pension and life time car agreement. 1,250 other retired Chrysler execs are also losing their pensions, as well as being ordered to return their complimentary vehicles or buy them.
Why Chrysler wants more cars back when they can’t sell the ones they have is a mystery?
Nardelli is doing it because he says bankruptcy allows him to as they build a new Chrysler owned by the government, unions, and Fiat. Contracts and loyalty mean nothingto the bean counter. The secured creditors were also stiffed in the bankruptcy.
Lee Iacocca saved Chrysler from bankruptcy 30 years ago. He gave America the K-cars and the Minivan at Chrysler, and the Mustang earlier at Ford. He also revived Mercury at Ford. Nardelli has given us bankruptcy and bailouts.
Nardelli was appointed chair of Chrysler on August 5, 2007, and in roughly a year and a half drove it in overdrive to bankruptcy
Lee Iacocca chaired the successful Statue of Liberty/Ellis Island Foundation, celebrating the heritage of America.
Nardelli was passed over at GE and then canned at Home Depot because of extreme arrogance. He even treated the shareholders with contempt. He also took out over $500 million from Home Depot. He didn’t give that back.
So as the ultimate bean counter departs Chrysler, he has done yet more damage in his final days.
His vision of saving Chrysler was to cut costs by substantially reducing sales. He was successful by half. He cut fleet sales, leases, product lines, and even future product development because his spreadsheet said he could.
Bean counters look to numbers, but fail to understand people. Loyalty is an alien concept. They fail to understand that any enterprise is dependent on its people. Their myopia is numbers.
How you make money by reducing volume when volume is the key to overcoming fixed overhead escapes me?
The hundreds of thousands of vehicles cut from production had generated net marginal revenue for the company. For example, even if the Dodge Magnum only sold 75,000 units a year, that 75,000 was on the same assembly line as the Chrysler 300, shared the identical platform and components, and hence increased productivity. So too with the Chrysler Pacifica assembled on the minivan lines.
But having shrunk Chrysler into bankruptcy, he still believes he can sell more with less. Bean counters don’t learn from mistakes; they repeat them because the spreadsheet says they can.
Hence, a few weeks ago Chrysler summarily terminated 769 dealers, 25% of its total. Unlike GM’s termination, Chrysler said it would not have to honor its contractual obligations to the dealers. Normally, when a dealership closes, the factory buys back its new car inventory and special tools. Not Chrysler – because bankruptcy lets it.
Let’s look at some of the terminated dealerships.
John and Horace Dodge founded Dodge Brothers in 1914. Dealer number three was George T. Tator of South Salem, New York. Owned for three generations by the same family, through depression and war, boom and bust, great product and bad, the dealership prospered. But it could not survive bankrupt Bob.
Chrysler asked its dealer s a few months ago to buy extra inventory to help it out. One dealer stepped up and bought $500,000 in Chrysler product. Now he has to eat it because Chrysler cut him off cold turkey.
Union Dodge in Garden Grove was founded by a Korean immigrant pursuing the American Dream. Chrysler wanted to consolidate its remaining brands into single outlets. Thus his son acquired a Chrysler and Jeep franchise two years ago to become of only four consolidated Chrysler dealers in Orange County. Now he has $5 million in Chrysler vehicles to liquidate.
Chrysler has a funny way of selling vehicles in California. 38 million residents, and it just cut 32 of its 142 dealers in the state. Orange County with 3 million people is down to 6 franchises. Toyota and Ford (not including Lincoln Mercury) have 11, Honda 9, Lexus 4, Mercedes 4 and BMW 3. One of the Toyota dealers outsells all the Chrysler dealers combined. BMW and Mercedes both outsell Chrysler in Orange County. Less is not going to be more for Chrysler in the OC. Indeed, roughly 5 years ago a Dodge dealer, selling about 200 new vehicles monthly, acquired a Chrysler and Jeep franchise from a retiring dealer a few miles away. Monthly sales remained 200 for the combined Chrysler, Dodge, Jeep dealership.
Chrysler terminated its Dodge and Jeep dealer in El Centro, California. The nearest Chrysler dealer is 60 miles away in Yuma, Arizona. The Ford, Honda, Hyundai, and Toyota dealers will continue to sell cars in El Centro. Similarly, Chrysler terminated its two dealerships in Stillwater, Oklahoma. The nearest Chrysler dealer is 50 miles away.
Just because you can do it, just because the spreadsheet says you can, just because an accommodating bankruptcy signs off on it, doesn’t mean it’s the right thing to do.
We are all paying for the bean counter.
Sunday, May 31, 2009
Saturday, May 30, 2009
Supreme Court Justice Sonia Sotomayor Has a Nice Ring to It
Some may be tone deaf, but Judge Sotomayor will be confirmed, probably by a 64-34 vote. The Republicans have as much of a chance of defeating the first Hispanic nominee to the Court, a Latina, as the Democrats had of defeating President Reagan’s nomination of Sandra Day O’Connor, the first woman on the Court.
Some whisper that the Judge lacks sufficient intellectual ability and sharpness.
Give me a break! I don’t care what her major was at Princeton, or whatever courses she may or may not have taken. She graduated second in her class, summa cum laude from Princeton. That has to be worth something in the way of intelligence.
Then she graduated from Yale Law School – one of only 160 a year from the nation’s top law school (sorry Harvard).
Ah, but she succeeded through hard work (she is a workaholic) rather than intellectual ability. Have we forgotten that success in America is a function of hard work?
President George W. Bush had a Bachelor’s from Yale and MBA from Harvard. He was smart enough. President Carter was an expert in nuclear engineering, but he wasn’t smart. Chief Justice Earl Warren and Justice Hugo Black graduated from public law schools, so they probably wouldn’t be considered smart enough by some.
She’s smart enough, as is her fellow Yale Law School alum, Justice Clarence Thomas.
Affirmative action will not be an issue in the confirmation hearings as to her personal success.
It may well, and should arise, with the New Haven firefighters, the decision in which is expected in a few weeks. (It will be interesting to see how the current Court now handles the decision – might they now affirm to avoid embarrassing her; it would do no good to roll it over to next term because she would recuse herself).
So what if three of her opinions have been overruled by the Supreme Court. Chief Justice Roberts did not win all the cases he argued before the Court.
If either Antonin Scalia or Samuel Alito had said “I would hope that a wise Italian male with the richness of his experiences would more often than not reach a better conclusion than a Hispanic female who hasn’t lived that life,” he would not be sitting on the Court today.
So what? It’s a different President and Senate and an accommodating media.
“Justice is Blind,” but every judge is the result of his or her background. Who we were helps define who we are. Our background forms part of the political calculus of a judicial appointment.
I remember an anecdote about President Johnson and Justice Thurgood Marshall. While it's not politically correct by today's mores, LBJ never was. Some of his advisors attempted to talk LBJ out of appointing Marshall because he was "too black." LBJ responded that if he was going to appoint a black to the Court, it would be a black.
Judge Sotomayor is clearly Hispanic.
The record of a nominee is parched, dissected, and flyspecked under an electron microscope.
So what’s her record?
She favors affirmative action, campaign finance reform, and gun control. She’s tough on criminal defendants, somewhat conservative on business issues, and an enigma on abortion and national security issues. She didn’t vote in two recent New York general elections.
The NRA doesn’t like one of her opinions, but they can’t stop her confirmation.
The Far Left is nervous because her record is silent on abortion; they are afraid that a Souter might replace Souter. They will support her in the end, as she follows the Kabuki path of Justices Thomas, Roberts, and Alito in navigating the abortion questions at the confirmation hearings.
So what if she is on YouTube saying the court of appeals judges make policy. Of course they do – that’s one of the basic principles even I learned at my not so elite, but excellent, JD law school. District court judges apply the law, and appellate judges decide the law. Since the cases often involve vexing policy issues, the Supreme Court is always free to reverse appellate judges, as the Court often does with the Ninth Circuit opinions.
I don’t want a Justice of “empathy.” I want a Justice who follows the law and doesn’t judicially legislate.
I don’t want a Justice who pursues amorphous concepts of “justice,” but one who follows the law.
However, right now the “law” depends mostly upon the views of one man, Justice Anthony Kennedy, who is the swing vote on the 5:4 decisions. That hardly results in the application of the “law,” but more of a personal perspective. He often partakes of internationalism in interpreting the Constitution.
I don’t need a Justice with a compelling life story. All nine Justices have such stories, as do all of us in our lives.
Frank Ricci, the New Haven firefighter, also has an equally compelling personal story. He is dyslexic, quit a second job, and spent $1,000 on readers to read aloud audiobooks to help him pass the promotion exam. No African American firefighter scored high enough for promotion on the Sergeants or Lieutenant’s exams, so the New Haven Fire Civil Service Commission tossed the tests. Ricci scored 6th on the Lieutenant’s exam. A judicial panel, including Judge Sotomayor, summarily affirmed the action in an unpublished opinion.
Policy is in Judge Sotomayor’s Yale DNA. Yale has pursued for decades its mission of educating the future leaders and policy makers of America. Presidents Ford and Clinton have Yale Law School degrees. So do Secretary of State Hillary Clinton, Pat Robertson, and John Bolton.
Both President Bush’s are Yalis, as are Senators John Kerry, Joe Lieberman, Arlen Specter, as well as Governors Howard Dean, George Pataki, and Jerry Brown.
Ever since the torpedoing of Judge Bork’s confirmation, the Supreme Court battles often become “down and dirty” political, partisan crusades of the lowest common denominator. Actually the process began earlier with the failed nominations of Judges G. Harold Carswell and Clement Haynsworth in the Nixon Administration. Both were tarred with charges of racism.
Everytime a Justice, or appointee, is trashed, the moral authority of the Supreme Court is tarnished. Once the Court is widely perceived to be a partisan branch of government, its opinions will lack moral suasion.
The politics of personal destruction are inappropriate in the judicial confirmation process. Let the debate be on issues. If the Republicans wish to bring Frank Ricci before the Senate and discuss affirmative action, they should do so, but in a respectful tone. They will not win the confirmation vote, but can pervail in the larger public battle over affirmative action in the Court of Public Opinion, while respecting the dignity of the Supreme Court.
Some whisper that the Judge lacks sufficient intellectual ability and sharpness.
Give me a break! I don’t care what her major was at Princeton, or whatever courses she may or may not have taken. She graduated second in her class, summa cum laude from Princeton. That has to be worth something in the way of intelligence.
Then she graduated from Yale Law School – one of only 160 a year from the nation’s top law school (sorry Harvard).
Ah, but she succeeded through hard work (she is a workaholic) rather than intellectual ability. Have we forgotten that success in America is a function of hard work?
President George W. Bush had a Bachelor’s from Yale and MBA from Harvard. He was smart enough. President Carter was an expert in nuclear engineering, but he wasn’t smart. Chief Justice Earl Warren and Justice Hugo Black graduated from public law schools, so they probably wouldn’t be considered smart enough by some.
She’s smart enough, as is her fellow Yale Law School alum, Justice Clarence Thomas.
Affirmative action will not be an issue in the confirmation hearings as to her personal success.
It may well, and should arise, with the New Haven firefighters, the decision in which is expected in a few weeks. (It will be interesting to see how the current Court now handles the decision – might they now affirm to avoid embarrassing her; it would do no good to roll it over to next term because she would recuse herself).
So what if three of her opinions have been overruled by the Supreme Court. Chief Justice Roberts did not win all the cases he argued before the Court.
If either Antonin Scalia or Samuel Alito had said “I would hope that a wise Italian male with the richness of his experiences would more often than not reach a better conclusion than a Hispanic female who hasn’t lived that life,” he would not be sitting on the Court today.
So what? It’s a different President and Senate and an accommodating media.
“Justice is Blind,” but every judge is the result of his or her background. Who we were helps define who we are. Our background forms part of the political calculus of a judicial appointment.
I remember an anecdote about President Johnson and Justice Thurgood Marshall. While it's not politically correct by today's mores, LBJ never was. Some of his advisors attempted to talk LBJ out of appointing Marshall because he was "too black." LBJ responded that if he was going to appoint a black to the Court, it would be a black.
Judge Sotomayor is clearly Hispanic.
The record of a nominee is parched, dissected, and flyspecked under an electron microscope.
So what’s her record?
She favors affirmative action, campaign finance reform, and gun control. She’s tough on criminal defendants, somewhat conservative on business issues, and an enigma on abortion and national security issues. She didn’t vote in two recent New York general elections.
The NRA doesn’t like one of her opinions, but they can’t stop her confirmation.
The Far Left is nervous because her record is silent on abortion; they are afraid that a Souter might replace Souter. They will support her in the end, as she follows the Kabuki path of Justices Thomas, Roberts, and Alito in navigating the abortion questions at the confirmation hearings.
So what if she is on YouTube saying the court of appeals judges make policy. Of course they do – that’s one of the basic principles even I learned at my not so elite, but excellent, JD law school. District court judges apply the law, and appellate judges decide the law. Since the cases often involve vexing policy issues, the Supreme Court is always free to reverse appellate judges, as the Court often does with the Ninth Circuit opinions.
I don’t want a Justice of “empathy.” I want a Justice who follows the law and doesn’t judicially legislate.
I don’t want a Justice who pursues amorphous concepts of “justice,” but one who follows the law.
However, right now the “law” depends mostly upon the views of one man, Justice Anthony Kennedy, who is the swing vote on the 5:4 decisions. That hardly results in the application of the “law,” but more of a personal perspective. He often partakes of internationalism in interpreting the Constitution.
I don’t need a Justice with a compelling life story. All nine Justices have such stories, as do all of us in our lives.
Frank Ricci, the New Haven firefighter, also has an equally compelling personal story. He is dyslexic, quit a second job, and spent $1,000 on readers to read aloud audiobooks to help him pass the promotion exam. No African American firefighter scored high enough for promotion on the Sergeants or Lieutenant’s exams, so the New Haven Fire Civil Service Commission tossed the tests. Ricci scored 6th on the Lieutenant’s exam. A judicial panel, including Judge Sotomayor, summarily affirmed the action in an unpublished opinion.
Policy is in Judge Sotomayor’s Yale DNA. Yale has pursued for decades its mission of educating the future leaders and policy makers of America. Presidents Ford and Clinton have Yale Law School degrees. So do Secretary of State Hillary Clinton, Pat Robertson, and John Bolton.
Both President Bush’s are Yalis, as are Senators John Kerry, Joe Lieberman, Arlen Specter, as well as Governors Howard Dean, George Pataki, and Jerry Brown.
Ever since the torpedoing of Judge Bork’s confirmation, the Supreme Court battles often become “down and dirty” political, partisan crusades of the lowest common denominator. Actually the process began earlier with the failed nominations of Judges G. Harold Carswell and Clement Haynsworth in the Nixon Administration. Both were tarred with charges of racism.
Everytime a Justice, or appointee, is trashed, the moral authority of the Supreme Court is tarnished. Once the Court is widely perceived to be a partisan branch of government, its opinions will lack moral suasion.
The politics of personal destruction are inappropriate in the judicial confirmation process. Let the debate be on issues. If the Republicans wish to bring Frank Ricci before the Senate and discuss affirmative action, they should do so, but in a respectful tone. They will not win the confirmation vote, but can pervail in the larger public battle over affirmative action in the Court of Public Opinion, while respecting the dignity of the Supreme Court.
Wednesday, May 20, 2009
Toke and Tax: California's Future
California voters last night blew up the five legislative budget “fixes” which either raised taxes or redirected existing revenue streams to the general budget. The California State Budget was up in smoke.
The answer to California’s economic distress lies in the smoke.
For California, it’s time to chill out as the answer is blowing in the wind. THC (Think Hashish and Cannabis)
California should now get off the pot, totally legalize marijuana, and then tax it.
Toke and Tax shall be the new motto of California.
Replace the old miner panning for gold with Mary Jane rolling a joint: “Eureka, I found a brick.”
Let Semsilla be the state flower.
Let grass become the NORML.
California has gone halfway there through the 1996 Prop 245, which legalized medical pot in California. Prop 245 created a hole wide enough in California’s ban on marijuana to drive a Mack Truck painted Panama Red through, and charted a new path in the classic game of Feds and Heads.
No longer should Californians fly to Vegas for pleasure. Now Nevadans can take one toke over the Stateline to California.
From Arizona, they can stop in Weed for some weed.
From Oregon, it’s just a short drive down the 101 to California’s Golden Triangle.
Californians won’t risk their lives in TJ for Acapulco Gold.
We can move the Annual Hash Bash from Ann Arbor to Berzerkey.
The legislators and the Governator celebrated with schnapps when they increased taxes. That was a critical error in judgment and an insult to Californians. Northern Californians may partake of brie and wine, and Southern Californians of Corona. All may puff the Magic Dragon, but stoned true Californians never stoop to schnapps. The legislators were dopes to think we couldn’t see through the purple haze to their tax increases.
Clear the air of pollution with a natural high in Tahoe.
No more wasteful uses of electricity to create artificial light in blacked out houses. Meter readers will no longer become Narcs.
Don’t waste limited law enforcement resources on CAMP.
Taxes by the kilos can make deficits go up, up and away.
Cannabis Dreaming has become a reality
Reefer Madness explains 2001 A Space Odyssey and Yellow Submarine.
Good grass no longer has to be green.
Weather forecasts by the Hippie Dippy Weatherman.
Worship with bongs at the Church of Cosmic Awareness.
Rediscover the lost art of rolling your own.
Remember, our Founding Fathers grew hemp for a reason.
Judge Douglas Ginsburg could qualify for the Supreme Court.
If only George Carlin were still alive.
Since California has a structural deficit, it now has the key to escape reality.
The answer to California’s economic distress lies in the smoke.
For California, it’s time to chill out as the answer is blowing in the wind. THC (Think Hashish and Cannabis)
California should now get off the pot, totally legalize marijuana, and then tax it.
Toke and Tax shall be the new motto of California.
Replace the old miner panning for gold with Mary Jane rolling a joint: “Eureka, I found a brick.”
Let Semsilla be the state flower.
Let grass become the NORML.
California has gone halfway there through the 1996 Prop 245, which legalized medical pot in California. Prop 245 created a hole wide enough in California’s ban on marijuana to drive a Mack Truck painted Panama Red through, and charted a new path in the classic game of Feds and Heads.
No longer should Californians fly to Vegas for pleasure. Now Nevadans can take one toke over the Stateline to California.
From Arizona, they can stop in Weed for some weed.
From Oregon, it’s just a short drive down the 101 to California’s Golden Triangle.
Californians won’t risk their lives in TJ for Acapulco Gold.
We can move the Annual Hash Bash from Ann Arbor to Berzerkey.
The legislators and the Governator celebrated with schnapps when they increased taxes. That was a critical error in judgment and an insult to Californians. Northern Californians may partake of brie and wine, and Southern Californians of Corona. All may puff the Magic Dragon, but stoned true Californians never stoop to schnapps. The legislators were dopes to think we couldn’t see through the purple haze to their tax increases.
Clear the air of pollution with a natural high in Tahoe.
No more wasteful uses of electricity to create artificial light in blacked out houses. Meter readers will no longer become Narcs.
Don’t waste limited law enforcement resources on CAMP.
Taxes by the kilos can make deficits go up, up and away.
Cannabis Dreaming has become a reality
Reefer Madness explains 2001 A Space Odyssey and Yellow Submarine.
Good grass no longer has to be green.
Weather forecasts by the Hippie Dippy Weatherman.
Worship with bongs at the Church of Cosmic Awareness.
Rediscover the lost art of rolling your own.
Remember, our Founding Fathers grew hemp for a reason.
Judge Douglas Ginsburg could qualify for the Supreme Court.
If only George Carlin were still alive.
Since California has a structural deficit, it now has the key to escape reality.
Monday, May 18, 2009
Notre Dame Is In An Identity Crisis
The University of Notre Dame du Luc must decide what it will be: a great Catholic university or a great secular university. It cannot be both, although either way it will remain a great university.
The invitation to President Obama to deliver the commencement address and receive an honorary degree brings the issue to the forefront. This post is neither about President Obama’s views nor the tone and tenor of his remarks. Nor is it about American views on abortion, although I do not believe the recent polls which say more Americans are pro-life than pro-choice. It is about Notre Dame.
The response by Catholic clergy and parishioners was underwhelming to say the least. Bishops protested, including the Bishop of South Bend, Indiana. Students demonstrated and protestors were arrested. Harvard Professor, and former Ambassador to the Vatican, Mary Ann Glendon, turned down a prestigious medal she was to receive from Notre Dame because she would not share the stage with the President.
Notre Dame, as a private university, has the right to invite or disinvite any speaker it pleases.
It could have had the President deliver the commencement address, but not award an honorary degree, as occurred a few days earlier at Arizona State. It could have simply stated that the invitation to President Obama follows in Notre Dame’s hallowed tradition of honoring our Presidents on a non-partisan basis.
However, President John Jenkins’ initial response was inappropriate to a Christian university. It reads as though it was written by a sophistic lawyer splitting hairs @$950/hour, and not a moral theologian.
The 2004 Directive of the United States Council of Bishops forbids Catholic schools from honoring “those who act in defiance of our [Catholic] fundamental moral principles.” Certainly, the Presidential support of abortions runs afoul of this prohibition.
President Jenkins wrote to the Notre Dame Board of Trustees that the invitation was faithful to the letter and spirit of the Bishops Directive. He asserted that his understanding was that the Directive only applied to Catholic politicians.
That response only fueled the fire and brimstone.
Abortion is one of the greatest social issues of our times. One of the early steps taken by the Obama Administration is to reverse the “moral conscience” clause promulgated by the Bush Administration. This clause protects medical providers from official retaliation for exercising their moral conscience in refusing certain medical procedures or dispensing pharmaceuticals.
By way of full disclosure, I am pro-choice with reasonable conditions, but I fully support the right, and I believe constitutional right, of Catholic hospitals to refuse to perform abortions. I also do not believe members of the medical profession should lose their jobs because of opposition to abortion or contraception.
Notre Dame is the preeminent Catholic university in America, surpassing Georgetown, Boston College, and all the other great Jesuit Universities. This once small school in a small Indiana city, where Studebakers were once manufactured, became the foremost American Catholic University by the 1960’s. It had subway alumni in every city, town, and burg in America.
None of the other Catholic universities, with the modern exception of Boston College, could maintain football – not Fordham with its great alum Vince Lombardi, not the Galloping Gaels of St. Mary’s, not the undefeated, untied, and uninvited 1951 Dons of USF (whose public relations director was a student by the name of Pete Rozell).
Football made Notre Dame, and the great Fr. Hesburgh, as President from 1952 to 1987, used football to build a great modern, research university, a modern Catholic research university. Notre dame had only a $5 million endownment when Fr. Herburgh was inaugurated. It exceeded $7 billion last year.
The Jesuits are preeminent educators. They are equally great humanitarians. Sometimes the Pontiff has had to call the Superior General of the Society of Jesus to the Vatican for a soul to soul talk, but the Jesuits never turn their backs on the fundamental teachings of the Church. They are Catholics first, and Jesuits second.
Students at Boston College recently invited Professor Bill Ayres to address them. The Administration disinvited Ayres. I disagree with the decision because I believe students should be exposed to the full range of political and social viewpoints, but the Jesuits of BC this year remind me of the Jesuits at USF (my first alma mater) during the 1960’s.
Boston College, USF, and all the other Jesuit universities remember their Catholicism and their roots as a means to educate the poor, often immigrants to America and their sons and daughters. It could have been Irish and Italians and Poles five decades ago and Vietnamese and Hispanics today. It doesn’t matter. There may not be as many Jesuits as four decades ago. It doesn't matter. They have built great educational institutions, but still unmistakably Jesuit.
Notre Dame is not what it was. A sign that it was leaving its honor behind came with the dismissal of Ty Willingham as football coach. Notre Dame had made mistakes earlier, since every hiring of a new coach by any university represents a gamble. Gerry Faust, a successful high school coach at Cincinnati Moeller, was such a mistake. The University realized early on that Faust could not fill the shoes of Knute Rockne, Frank Leahy, or Ara Parseghian, but the University honored his contract. They would lose games, but Notre Dame was Notre Dame. Two decades later, Ty Willingham was booted out with two years left on his contract. His mortal sin was not winning enough games.
Notre Dame was no longer Notre Dame, but just another football powerhouse for whom winning was everything.
And Notre Dame is becoming less of a Catholic University today. Will it follow the path of least resistence in the Academy and follow Marist University into secularism?
The invitation to President Obama to deliver the commencement address and receive an honorary degree brings the issue to the forefront. This post is neither about President Obama’s views nor the tone and tenor of his remarks. Nor is it about American views on abortion, although I do not believe the recent polls which say more Americans are pro-life than pro-choice. It is about Notre Dame.
The response by Catholic clergy and parishioners was underwhelming to say the least. Bishops protested, including the Bishop of South Bend, Indiana. Students demonstrated and protestors were arrested. Harvard Professor, and former Ambassador to the Vatican, Mary Ann Glendon, turned down a prestigious medal she was to receive from Notre Dame because she would not share the stage with the President.
Notre Dame, as a private university, has the right to invite or disinvite any speaker it pleases.
It could have had the President deliver the commencement address, but not award an honorary degree, as occurred a few days earlier at Arizona State. It could have simply stated that the invitation to President Obama follows in Notre Dame’s hallowed tradition of honoring our Presidents on a non-partisan basis.
However, President John Jenkins’ initial response was inappropriate to a Christian university. It reads as though it was written by a sophistic lawyer splitting hairs @$950/hour, and not a moral theologian.
The 2004 Directive of the United States Council of Bishops forbids Catholic schools from honoring “those who act in defiance of our [Catholic] fundamental moral principles.” Certainly, the Presidential support of abortions runs afoul of this prohibition.
President Jenkins wrote to the Notre Dame Board of Trustees that the invitation was faithful to the letter and spirit of the Bishops Directive. He asserted that his understanding was that the Directive only applied to Catholic politicians.
That response only fueled the fire and brimstone.
Abortion is one of the greatest social issues of our times. One of the early steps taken by the Obama Administration is to reverse the “moral conscience” clause promulgated by the Bush Administration. This clause protects medical providers from official retaliation for exercising their moral conscience in refusing certain medical procedures or dispensing pharmaceuticals.
By way of full disclosure, I am pro-choice with reasonable conditions, but I fully support the right, and I believe constitutional right, of Catholic hospitals to refuse to perform abortions. I also do not believe members of the medical profession should lose their jobs because of opposition to abortion or contraception.
Notre Dame is the preeminent Catholic university in America, surpassing Georgetown, Boston College, and all the other great Jesuit Universities. This once small school in a small Indiana city, where Studebakers were once manufactured, became the foremost American Catholic University by the 1960’s. It had subway alumni in every city, town, and burg in America.
None of the other Catholic universities, with the modern exception of Boston College, could maintain football – not Fordham with its great alum Vince Lombardi, not the Galloping Gaels of St. Mary’s, not the undefeated, untied, and uninvited 1951 Dons of USF (whose public relations director was a student by the name of Pete Rozell).
Football made Notre Dame, and the great Fr. Hesburgh, as President from 1952 to 1987, used football to build a great modern, research university, a modern Catholic research university. Notre dame had only a $5 million endownment when Fr. Herburgh was inaugurated. It exceeded $7 billion last year.
The Jesuits are preeminent educators. They are equally great humanitarians. Sometimes the Pontiff has had to call the Superior General of the Society of Jesus to the Vatican for a soul to soul talk, but the Jesuits never turn their backs on the fundamental teachings of the Church. They are Catholics first, and Jesuits second.
Students at Boston College recently invited Professor Bill Ayres to address them. The Administration disinvited Ayres. I disagree with the decision because I believe students should be exposed to the full range of political and social viewpoints, but the Jesuits of BC this year remind me of the Jesuits at USF (my first alma mater) during the 1960’s.
Boston College, USF, and all the other Jesuit universities remember their Catholicism and their roots as a means to educate the poor, often immigrants to America and their sons and daughters. It could have been Irish and Italians and Poles five decades ago and Vietnamese and Hispanics today. It doesn’t matter. There may not be as many Jesuits as four decades ago. It doesn't matter. They have built great educational institutions, but still unmistakably Jesuit.
Notre Dame is not what it was. A sign that it was leaving its honor behind came with the dismissal of Ty Willingham as football coach. Notre Dame had made mistakes earlier, since every hiring of a new coach by any university represents a gamble. Gerry Faust, a successful high school coach at Cincinnati Moeller, was such a mistake. The University realized early on that Faust could not fill the shoes of Knute Rockne, Frank Leahy, or Ara Parseghian, but the University honored his contract. They would lose games, but Notre Dame was Notre Dame. Two decades later, Ty Willingham was booted out with two years left on his contract. His mortal sin was not winning enough games.
Notre Dame was no longer Notre Dame, but just another football powerhouse for whom winning was everything.
And Notre Dame is becoming less of a Catholic University today. Will it follow the path of least resistence in the Academy and follow Marist University into secularism?
Sunday, May 17, 2009
Cheerios Is a Drug
Yes, indeedy, those tiny donut shaped, whole wheat Cheerios are now officially a drug, according to the Food and Drug Administration.
Amazing! You can’t get high on Cheerios. Nor can you OD on them. They’re not addictive; nothing happens if you cold turkey Cheerios, unlike caffeine - not that I recommend eating cold turkey and cold Cheerios at the same time. No law prohibits driving while under the influence of Cheerios.
Cheerios are among the healthiest breakfast cereal we can eat. They don’t contain excessive amounts either of sugar or salt. Trans fats are missing. They lack glaze, frosting, powdered sugar and sugared gel.
I don’t even know if Cheerios should be singular or plural, but I do know now that they now constitute a drug. They don’t cure any disease. Nor do they ameliorate symptoms. Noone gets vaccinated with Cheerios. They don’t fight colds, unlike Vitamin C.
But the FDA has declared they are a drug.
The Food and Drug Administration is probably, of all the regulatory agencies, the most critical to the health and safety of the American people. Its duty is to protect us against deleterious food, beverages, cosmetics, and drugs.
This task is impossible. No agency, no billions of dollars, no millions of food and drug inspectors can protect us against the infinite sources of contamination in our food and beverages, or even the adverse health effects of prescription drugs decades later. For example, third generation claims are arising out of DES ingested by grandmothers 4-5 decades ago.
In recent years the FDA has been bedeviled by scallions, onions, tomatoes, peanuts, pistachios, E-Coli, listeria, salmonella, hepatitis, wheat gluten, pet foods, heparin, and Vioxx. Earlier it wrestled with Red Food Dye #2. Politicians have taken pot shots at the agency for decades because of its inability to guarantee our food and drugs are safe.
The FDA was grew out of the Progressive Era as a response to Upton Sinclair’s great “novel” The Jungle. Revelations of human body parts in our meat processed by slaughter houses. In spite of the presence of FDA inspectors, a large slaughter house was recently caught on video sending downed cattle (downers) to be slaughtered and processed into our food supply, often as beef in our school lunch programs. Human digits still show up in our food.
For several decades the FDA was charged with an impossible task under the now repealed 1958 Delaney Amendment – a zero risk of cancer in humans or animals from food additives. Hordes of Norwegian white rats, which have little relationship to humans (except for the occasional lawyer joke) were sacrificed in tests for animal carcinogenesis. If they succumbed to cancer, then the food product or drug violated the Delaney Amendment. The rat and mice tests were so unreliable that lab mice and rats never developed lung cancer no matter haw many cigarettes they inhaled.
Unable to protect us from unhealthy foods, the FDA now proposes to protect us from healthy foods. The FDA~bureaucrats have found a food battle they can win.
The FDA wrote a warning letter dated May 5 to General Mills complaining of its claims that Cheerios “can lower your cholesterol by 4% in six weeks.” Dr. Steven Sundloff, in charge of the Center for Food Safety explains that the labeling “clinically proven to help lower cholesterol” carries a drug claim. Thus, General Mills was essentially marketing Cheerios as a drug. The FDA advised general Mills that if it wishes to continue these claims, it needs to file a new-drug application for Cheerios with the FDA.
Unless General Mills “promptly corrects” the violations outlined by the FDA, the agency reserved the right to take corrective actions, including seizing the product.
The problem is that the FDA will allow a company to clam, in a generic way, that its food product is healthy, but if it gets specific than the FDA will step in. The devil is in th efood details.
I miss the days of Wonder Bread builing healthy young bodies in 11 (or wads it 12) different ways.
Amazing! You can’t get high on Cheerios. Nor can you OD on them. They’re not addictive; nothing happens if you cold turkey Cheerios, unlike caffeine - not that I recommend eating cold turkey and cold Cheerios at the same time. No law prohibits driving while under the influence of Cheerios.
Cheerios are among the healthiest breakfast cereal we can eat. They don’t contain excessive amounts either of sugar or salt. Trans fats are missing. They lack glaze, frosting, powdered sugar and sugared gel.
I don’t even know if Cheerios should be singular or plural, but I do know now that they now constitute a drug. They don’t cure any disease. Nor do they ameliorate symptoms. Noone gets vaccinated with Cheerios. They don’t fight colds, unlike Vitamin C.
But the FDA has declared they are a drug.
The Food and Drug Administration is probably, of all the regulatory agencies, the most critical to the health and safety of the American people. Its duty is to protect us against deleterious food, beverages, cosmetics, and drugs.
This task is impossible. No agency, no billions of dollars, no millions of food and drug inspectors can protect us against the infinite sources of contamination in our food and beverages, or even the adverse health effects of prescription drugs decades later. For example, third generation claims are arising out of DES ingested by grandmothers 4-5 decades ago.
In recent years the FDA has been bedeviled by scallions, onions, tomatoes, peanuts, pistachios, E-Coli, listeria, salmonella, hepatitis, wheat gluten, pet foods, heparin, and Vioxx. Earlier it wrestled with Red Food Dye #2. Politicians have taken pot shots at the agency for decades because of its inability to guarantee our food and drugs are safe.
The FDA was grew out of the Progressive Era as a response to Upton Sinclair’s great “novel” The Jungle. Revelations of human body parts in our meat processed by slaughter houses. In spite of the presence of FDA inspectors, a large slaughter house was recently caught on video sending downed cattle (downers) to be slaughtered and processed into our food supply, often as beef in our school lunch programs. Human digits still show up in our food.
For several decades the FDA was charged with an impossible task under the now repealed 1958 Delaney Amendment – a zero risk of cancer in humans or animals from food additives. Hordes of Norwegian white rats, which have little relationship to humans (except for the occasional lawyer joke) were sacrificed in tests for animal carcinogenesis. If they succumbed to cancer, then the food product or drug violated the Delaney Amendment. The rat and mice tests were so unreliable that lab mice and rats never developed lung cancer no matter haw many cigarettes they inhaled.
Unable to protect us from unhealthy foods, the FDA now proposes to protect us from healthy foods. The FDA~bureaucrats have found a food battle they can win.
The FDA wrote a warning letter dated May 5 to General Mills complaining of its claims that Cheerios “can lower your cholesterol by 4% in six weeks.” Dr. Steven Sundloff, in charge of the Center for Food Safety explains that the labeling “clinically proven to help lower cholesterol” carries a drug claim. Thus, General Mills was essentially marketing Cheerios as a drug. The FDA advised general Mills that if it wishes to continue these claims, it needs to file a new-drug application for Cheerios with the FDA.
Unless General Mills “promptly corrects” the violations outlined by the FDA, the agency reserved the right to take corrective actions, including seizing the product.
The problem is that the FDA will allow a company to clam, in a generic way, that its food product is healthy, but if it gets specific than the FDA will step in. The devil is in th efood details.
I miss the days of Wonder Bread builing healthy young bodies in 11 (or wads it 12) different ways.
Tuesday, May 12, 2009
Will The Donald Give Carrie Prejean a Second Chance?
Donald Trump, principal owner of the Miss USA Pageant, is expected to decide today the fate of Carrie Prejean, Miss California USA. Will he or won’t he strip her of her crown?
Tara Connor, Miss USA, presented him with a similar choice three years ago.
Allegedly, after Tara received her tiara, she partied, drank in public, used cocaine, snuck men into her apartment at Trump Place, and publicly kissed Miss Teen USA. These are, of course, acts that violate the morals clause signed by the beauty pageant contestants.
After a personal appearance by Tara, The Donald forgave her, explaining that “I’ve always been a believer in second chances.”
Will he show similar magnanimity with Carrie?
He loves the publicity. The Donald is a shameless self-promoter; he thrives on publicity and hyperbole. He once described Marla Maples, with whom he had an adulterous affair before divorcing Ivana, as “the best sex I ever had.”
The great sex did not stop him from dumping Marla one week before the end of the four year limitations period in their prenup. Marla received only $2 million in the settlement when trump’s estimated worth was $1.6 million. One week later, the divorce would have been very costly for him.
One hopes that wife number three, Melanie Knauss, had a better lawyer negotiating her prenup with the Donald. For what it’s worth, he’s 24 years older than her, but love springs eternal.
His show may be The Apprentice, but he is the ultimate Survivor in one of the world’s most Darwinian real estate markets, New York City.
Like many real estate developers, the Donald has made and lost fortunes many times.
Forget second chances, he had three chances with his Atlantic City casinos, which have entered bankruptcy three times. He once gambled on the law by suing the Massantucket Pequot Indians for the allegedly illegal Foxwoods Indian Casino. He lost that bet.
He’s doubling down with the law on the recent real estate collapse, which has cratered many of his development projects, by claiming the collapse is “An Act of God” which excuses him from performance. He will lose that one too. He, of course, will not give a second chance to the purchasers of his condos, denying them an Act of God release.
He made his first fortune converting the dilapidated Commodore Hotel in Manhattan into the Grand Hyatt in partnership with the Pritzkers. He lost his interest in the Grand Hyatt decades later.
Even his degree from Wharton was a second chance. He transferred to Wharton after two years at Fordham.
If he dismisses Carrie, which is clearly what the Miss California USA want, then he will make her a martyr for straight marriages. He may love publicity, but he doesn't need that publicity. Magnamity is the call of the day.
Tara Connor, Miss USA, presented him with a similar choice three years ago.
Allegedly, after Tara received her tiara, she partied, drank in public, used cocaine, snuck men into her apartment at Trump Place, and publicly kissed Miss Teen USA. These are, of course, acts that violate the morals clause signed by the beauty pageant contestants.
After a personal appearance by Tara, The Donald forgave her, explaining that “I’ve always been a believer in second chances.”
Will he show similar magnanimity with Carrie?
He loves the publicity. The Donald is a shameless self-promoter; he thrives on publicity and hyperbole. He once described Marla Maples, with whom he had an adulterous affair before divorcing Ivana, as “the best sex I ever had.”
The great sex did not stop him from dumping Marla one week before the end of the four year limitations period in their prenup. Marla received only $2 million in the settlement when trump’s estimated worth was $1.6 million. One week later, the divorce would have been very costly for him.
One hopes that wife number three, Melanie Knauss, had a better lawyer negotiating her prenup with the Donald. For what it’s worth, he’s 24 years older than her, but love springs eternal.
His show may be The Apprentice, but he is the ultimate Survivor in one of the world’s most Darwinian real estate markets, New York City.
Like many real estate developers, the Donald has made and lost fortunes many times.
Forget second chances, he had three chances with his Atlantic City casinos, which have entered bankruptcy three times. He once gambled on the law by suing the Massantucket Pequot Indians for the allegedly illegal Foxwoods Indian Casino. He lost that bet.
He’s doubling down with the law on the recent real estate collapse, which has cratered many of his development projects, by claiming the collapse is “An Act of God” which excuses him from performance. He will lose that one too. He, of course, will not give a second chance to the purchasers of his condos, denying them an Act of God release.
He made his first fortune converting the dilapidated Commodore Hotel in Manhattan into the Grand Hyatt in partnership with the Pritzkers. He lost his interest in the Grand Hyatt decades later.
Even his degree from Wharton was a second chance. He transferred to Wharton after two years at Fordham.
If he dismisses Carrie, which is clearly what the Miss California USA want, then he will make her a martyr for straight marriages. He may love publicity, but he doesn't need that publicity. Magnamity is the call of the day.
Sunday, May 10, 2009
President Bush Fired the Wrong Prosecutors
President Bush, Attorney General Alberto Gonzalez, Karl Rove and others in the Bush Administration have been pilloried for firing 7, 8, or 9 federal prosecutors (the actual number seems to vary).
They fired the wrong ones!
Many of the U.S. prosecutors were terminated because they would not carry out Administration policy, which was to crack down on voter fraud. Norm Coleman would probably still be the Senator from Minnesota if Acorn had been reined in.
Others should have been fired because of grossly unprofessional conduct.
Federal prosecutors have much greater power than state and local prosecutors because they have the full weight and resources of the federal government, including the FBI, behind them. The Assistant U. S. Attorneys are the best and brightest graduates of our nation’s top law schools.
Claims of prosecutorial misconduct, and even judicial bias, are often raised by defendants so credence should not be extended to every such claim.
Yet, recent years have shown a number of major ethical violations by several federal prosecutors. They are not limited to a single prosecutor or even a single office. Many, but not all, occurred in the second Bush Administration. Their misconduct is an embarrassment to federal prosecutors, who fully understand their professional obligations..
Their actions rival those of North Carolina’s Mike Nifong in the Duke Lacrosse Players scandal, and other local prosecutors. As an extreme, 80 convictions in Queens between 1989 and 2003 were overturned because of prosecutorial misconduct. Shih-Wei Su, who had been wrongly incarcerated for 13 years, received a check for $3.5 million from New York City. The Second Circuit Court of Appeals found that “the prosecution knowingly elicited false testimony.”
Prosecutors become convinced of the justice and righteousness of their acts, and the guilt or innocence of suspects. They are certain of the guilt of those they choose to prosecute, and may let that belief cloud their professional judgment and perspective.
Most recognize that they are the prosecutor, not the judge or jury. They represent the public, but they are not a private lawyer arduously representing a client. They represent the cause of justice, which means also finding an accused to be innocent. The end does not justify the means. In our system, unlike most of the world, the accused are presumed innocent until proven guilty.
The Supreme Court in the 1935 case of Berger v. United States laid down the marker:
"The United States Attorney is the representative not of an ordinary
party to a controversy, but of a sovereignty whose obligation
to govern impartially is as compelling as its obligation to govern
at all; and whose interest therefore, ... is not that it shall win a case,
but that justice shall be done. As such, he is in a peculiar and very
definate sense the servant of the law .... He may prosecute with
earnestness and vigor - indeed, he should do so. But, while he may
strike hard blows, he is not at liberty to strike flow ones. It is as much
his duty to refrain from improper methods calculated to produce a
wrongful conviction as it is to use every legitimate means to bring
about a just one."
One of their fundamental, professional responsibilities is to disclose exculpatory evidence to defendants. That is the largest failure in many recent cases.
The professional misconduct has led to major outcries by federal judges in recent cases.
My interest was perked by the persistent misconduct of the prosecutors in the corruption prosecution of Senator Ted Stevens of Alaska. The prosecution was not by the United States Attorney for Alaska, but by the Public Integrity Section of the Justice Department.
The Senator with the Bridge to Nowhere may well have been guilty of improper acts in other situations, but the prosecutors had to prove his guilt of the charges file against him. They failed to disclose interview notes of their key witness. These notes of his statements show a vastly different story than he testified to. In addition, a prosecution witness was flown back to Alaska by the Justice Department right before trial because his testimony would have aided the Senator’s case. The Senator was convicted on all 7 counts shortly before the November election, and lost reelection by less than 4,000 votes.
Eric Holder, the new Attorney General, asked the Judge to reverse the convictions, and dismiss the charges. The Judge approved the request, held several prosecutors in contempt, and appointed a special prosecutor to investigate their conduct.
The Chief Judge of the Federal District Court in Massachusetts in January also sharply criticized the “egregious failure” of an Assistant U.S. Attorney to disclose exculpatory evidence to a defendant. Judge Mark L. Wolf noted at least nine cases he presided over in the past two decades in which federal prosecutors similarly withheld important information. The misconduct in several cases led to mistrials and convictions, followed by reversals.
In one case in 2007 he asked the State Bar to pursue disciplinary proceedings against an Assistant U.S. Attorney.
The U.S. Attorney in Boston abruptly resigned in April.
District Court Judge Alan Gold in Miami fined the government $601,795 in April for acting deceptively and “in bad faith” in the prosecution of a doctor acquitted of 141 counts of illegally prescribing painkillers. The prosecutors had secretly investigated and taped the defendant’s lawyers and tried to entrap them in witness tampering charges, using the same parties who were witnesses against the doctor. The jury acquitted the doctor once the recordings were revealed.
Judge Gold reprimanded three Assistant U.S. Attorneys and sent a copy of his 50 page order to the Florida Bar for review. He stated that the U.S. Attorneys Office “exhibited a pattern of win at all cost behavior … that was contrary to their ethical obligations as prosecutors and a breach of their heavy obligation to the accused.”
The U.S. Attorney in Montana filed criminal charges against W.R. Grace & Co. and seven Grace executives for knowingly contaminating the town of Libby, Montana with vermiculite containing asbestos, and then conspiring to cover up the contamination. About 200 residents of the town, population 2600, have died of asbestos diseases and hundreds of others have asbestos caused illnesses. W.R. Grace & Co. is the company made infamous in the book and movie “A Civil Action.”
Judge Donald W. Molloy was unsympathetic to the government’s case from the beginning. Five of his pre-trial motions on behalf of the Grace defendants were overturned by the Ninth Circuit. He suppressed several pieces of the government’s evidence during the trial.
He denounced the government’s star witness, Robert H. Locke, a former Grace executive, during trial, and questioned the practices of the prosecution in front of the jury. The Judge questioned the judgment, ethics and tactics of the prosecution, singling out Kris A. McLean, the U.S. Attorney, for withholding evidence from the defense. He then dismissed charges against four of the execs.
The jury last Friday acquitted the remaining defendants on all charges after deliberating less than two days.
Another federal judge dismissed charges in 2007 against 13 former executives of KPMG, an accounting firm, because the government had pressured the firm into not paying their legal fees in the criminal case alleging they set up illegal tax shelters for clients. The decision was upheld on appeal in August 2008. In essence, the government was trying to coerce the defendants into pleading guilty because they would be unable to afford to defend the cases. The Justice Department changed its guidelines shortly thereafter.
The Justice Department suffered double embarrassment in a 9/11 case. Two North Africans were convicted on terrorism charges in a 2003 trial, but their convictions wee overturned in 2004 because of prosecutorial misconduct. The former prosecutor, Robert G. Convertino, was acquitted in 2007 of charges he had illegally withheld exculpatory photos. The prosecution was also by the Public Integrity Section of the Justice Department.
These misconduct cases are not chargeable to the Obama Administration, although a few may have occurred early in the Administration. One of the greatest contributions Eric Holder, the current Attorney Justice, could make would be to restore professionalism to the Attorney General’s Office. He has made a strong start by dropping the charges against Senator Stevens and by requiring federal prosecutors to be retrained. He also created a working group to review procedures to see if prosecutors have the necessary resources to fulfill their responsibilities.
They fired the wrong ones!
Many of the U.S. prosecutors were terminated because they would not carry out Administration policy, which was to crack down on voter fraud. Norm Coleman would probably still be the Senator from Minnesota if Acorn had been reined in.
Others should have been fired because of grossly unprofessional conduct.
Federal prosecutors have much greater power than state and local prosecutors because they have the full weight and resources of the federal government, including the FBI, behind them. The Assistant U. S. Attorneys are the best and brightest graduates of our nation’s top law schools.
Claims of prosecutorial misconduct, and even judicial bias, are often raised by defendants so credence should not be extended to every such claim.
Yet, recent years have shown a number of major ethical violations by several federal prosecutors. They are not limited to a single prosecutor or even a single office. Many, but not all, occurred in the second Bush Administration. Their misconduct is an embarrassment to federal prosecutors, who fully understand their professional obligations..
Their actions rival those of North Carolina’s Mike Nifong in the Duke Lacrosse Players scandal, and other local prosecutors. As an extreme, 80 convictions in Queens between 1989 and 2003 were overturned because of prosecutorial misconduct. Shih-Wei Su, who had been wrongly incarcerated for 13 years, received a check for $3.5 million from New York City. The Second Circuit Court of Appeals found that “the prosecution knowingly elicited false testimony.”
Prosecutors become convinced of the justice and righteousness of their acts, and the guilt or innocence of suspects. They are certain of the guilt of those they choose to prosecute, and may let that belief cloud their professional judgment and perspective.
Most recognize that they are the prosecutor, not the judge or jury. They represent the public, but they are not a private lawyer arduously representing a client. They represent the cause of justice, which means also finding an accused to be innocent. The end does not justify the means. In our system, unlike most of the world, the accused are presumed innocent until proven guilty.
The Supreme Court in the 1935 case of Berger v. United States laid down the marker:
"The United States Attorney is the representative not of an ordinary
party to a controversy, but of a sovereignty whose obligation
to govern impartially is as compelling as its obligation to govern
at all; and whose interest therefore, ... is not that it shall win a case,
but that justice shall be done. As such, he is in a peculiar and very
definate sense the servant of the law .... He may prosecute with
earnestness and vigor - indeed, he should do so. But, while he may
strike hard blows, he is not at liberty to strike flow ones. It is as much
his duty to refrain from improper methods calculated to produce a
wrongful conviction as it is to use every legitimate means to bring
about a just one."
One of their fundamental, professional responsibilities is to disclose exculpatory evidence to defendants. That is the largest failure in many recent cases.
The professional misconduct has led to major outcries by federal judges in recent cases.
My interest was perked by the persistent misconduct of the prosecutors in the corruption prosecution of Senator Ted Stevens of Alaska. The prosecution was not by the United States Attorney for Alaska, but by the Public Integrity Section of the Justice Department.
The Senator with the Bridge to Nowhere may well have been guilty of improper acts in other situations, but the prosecutors had to prove his guilt of the charges file against him. They failed to disclose interview notes of their key witness. These notes of his statements show a vastly different story than he testified to. In addition, a prosecution witness was flown back to Alaska by the Justice Department right before trial because his testimony would have aided the Senator’s case. The Senator was convicted on all 7 counts shortly before the November election, and lost reelection by less than 4,000 votes.
Eric Holder, the new Attorney General, asked the Judge to reverse the convictions, and dismiss the charges. The Judge approved the request, held several prosecutors in contempt, and appointed a special prosecutor to investigate their conduct.
The Chief Judge of the Federal District Court in Massachusetts in January also sharply criticized the “egregious failure” of an Assistant U.S. Attorney to disclose exculpatory evidence to a defendant. Judge Mark L. Wolf noted at least nine cases he presided over in the past two decades in which federal prosecutors similarly withheld important information. The misconduct in several cases led to mistrials and convictions, followed by reversals.
In one case in 2007 he asked the State Bar to pursue disciplinary proceedings against an Assistant U.S. Attorney.
The U.S. Attorney in Boston abruptly resigned in April.
District Court Judge Alan Gold in Miami fined the government $601,795 in April for acting deceptively and “in bad faith” in the prosecution of a doctor acquitted of 141 counts of illegally prescribing painkillers. The prosecutors had secretly investigated and taped the defendant’s lawyers and tried to entrap them in witness tampering charges, using the same parties who were witnesses against the doctor. The jury acquitted the doctor once the recordings were revealed.
Judge Gold reprimanded three Assistant U.S. Attorneys and sent a copy of his 50 page order to the Florida Bar for review. He stated that the U.S. Attorneys Office “exhibited a pattern of win at all cost behavior … that was contrary to their ethical obligations as prosecutors and a breach of their heavy obligation to the accused.”
The U.S. Attorney in Montana filed criminal charges against W.R. Grace & Co. and seven Grace executives for knowingly contaminating the town of Libby, Montana with vermiculite containing asbestos, and then conspiring to cover up the contamination. About 200 residents of the town, population 2600, have died of asbestos diseases and hundreds of others have asbestos caused illnesses. W.R. Grace & Co. is the company made infamous in the book and movie “A Civil Action.”
Judge Donald W. Molloy was unsympathetic to the government’s case from the beginning. Five of his pre-trial motions on behalf of the Grace defendants were overturned by the Ninth Circuit. He suppressed several pieces of the government’s evidence during the trial.
He denounced the government’s star witness, Robert H. Locke, a former Grace executive, during trial, and questioned the practices of the prosecution in front of the jury. The Judge questioned the judgment, ethics and tactics of the prosecution, singling out Kris A. McLean, the U.S. Attorney, for withholding evidence from the defense. He then dismissed charges against four of the execs.
The jury last Friday acquitted the remaining defendants on all charges after deliberating less than two days.
Another federal judge dismissed charges in 2007 against 13 former executives of KPMG, an accounting firm, because the government had pressured the firm into not paying their legal fees in the criminal case alleging they set up illegal tax shelters for clients. The decision was upheld on appeal in August 2008. In essence, the government was trying to coerce the defendants into pleading guilty because they would be unable to afford to defend the cases. The Justice Department changed its guidelines shortly thereafter.
The Justice Department suffered double embarrassment in a 9/11 case. Two North Africans were convicted on terrorism charges in a 2003 trial, but their convictions wee overturned in 2004 because of prosecutorial misconduct. The former prosecutor, Robert G. Convertino, was acquitted in 2007 of charges he had illegally withheld exculpatory photos. The prosecution was also by the Public Integrity Section of the Justice Department.
These misconduct cases are not chargeable to the Obama Administration, although a few may have occurred early in the Administration. One of the greatest contributions Eric Holder, the current Attorney Justice, could make would be to restore professionalism to the Attorney General’s Office. He has made a strong start by dropping the charges against Senator Stevens and by requiring federal prosecutors to be retrained. He also created a working group to review procedures to see if prosecutors have the necessary resources to fulfill their responsibilities.
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