Meeting of the Minds - Duchess of York and News of the World
Having watched with a certain morbid fascination the fiasco of Sarah Ferguson's life, and her interview with wannabe prosecuting attorney Oprah Winfrey (Barbara Walters's usual turf, but she's OOA), I have this very American advice to give her:
Sue for performance of what was a contract, for the full amount of 500,000 pounds which translates to about 730,000 dollars, plus punitive damages for a variety of reasons. Attorneys will line up for the opportunity to represent Fergie, just for the exposure, or at worst on a contingency basis. This will get her off the hook financially, and avoid her impending bankruptcy. British courts are lenient towards defendants in libel, slander and defamation cases, especially where it concerns Britain's gutter press. Or the suit could be pressed in a New York court, for the first meeting was in a NY hotel.
It is clear that a contract was made, and passes the meeting of the minds test. That the businessman was a reporter playing a role is his problem. And there's money to be collected, the News of the World is very rich.
(As an aside, it's Interesting how Brits are willing to sit down and speak for themselves, while Americans such as Oprah will cover themselves with a thick layer of attorneys, and never, ever, speak up, except when forced to under oath in a courtroom because their lying attorneys failed in their usual ploy of keeping their client off the stand. Does this make Americans better people? I wonder.)
Broadway success, but what really happened?
It's my birthday today, which reminds me of another birthday, spent in jail. There was some interest from the press at the time, and I consented to be interviewed.
It was with the respected Los Angeles Times. What they did to me gives the best example of why the press is not to be trusted, if they have an agenda, which they usually do. It set the tone for me up until the present time. With Nightingale, Lynn Redgrave seeks to continue the spin. And she doesn't grant interviews, a normal process in the promotion of a play. What the lawyers did, some might say was foster criminal fraud behavior, covered up by the courts and the L.A. Times. So read this, and let's not hear any more of the nonsense in critics' reviews:
Looking for Justice
AUGUST 1, 2009
I feel bad that here it is, over 2 years since the previous entry on the subject. The reasons are 2-fold:
1. I have had an extended health problem, heart attack, atrial fibrilation, pace-maker, and the side effects of powerful medication to keep the blood flowing and the ticker ticking. And ever-present feelings of depression and failure, due to the lack of closure on my past marriages (only 2) and connected relationships, which others sort to benefit from, and did but really didn't, and the weird action of the real estate and stock market. I began to feel like the victim in a Priestley play.
2. On the bright side, I couldn't get justice then, given the players and tools which they used to such unfair advantage. Enforced patience took place, and behold, a whole new ball game is in play. The old actors are retired out of the picture, dead, gone, or disabled, and a new President is throwing in the air all the old precepts and practises, and we are watching where the pieces are falling. Many people don't like it, don't like it at all.
Me, I say give it a chance; the government is now getting into private enterprise, becoming the agency of last resort. Bleeding but leading. Making many entrepeneurs uncomfortable for good reason, claiming traditional first rights to that turf. But I don't think what he's doing should be confused with what many are calling creeping Socialism. That word, as I intimately knew it, meant Nationalisation British style after the 2nd World War. He's no Clement Atlee, or Harold Wilson, and it goes without saying that industries will be able to buy themselves back when they clean up their act.
In this country, there are certain flagship enterprises that should not be allowed to fail, notwithstanding the incompetency of their operators. The Auto industry comes to mind, as does the Defense industry, the Aircraft industry, and the Airline industry (Pan Am, where are you, they saved Lockheed, didn't they?) The Banking industry? Well, they were not just incompetent, they were to say the least, dishonest and corrupt in ways we'll never know. Why? Because of the Regulatory industry, possibly partners in crime. And because of the Judicial industry, which is where I come in.
The Web has changed the conditions of blogging very swiftly, giving the public access to information in ways that make my efforts look like snail mail vs. email. Moreover, many old links have become dead links. Most newspapers are expecting us to pay for archived information.. What we need now is the original publishing entrepeneur, Benjamin Franklin. He'd have found a way. The L.A. Times? Bye Bye.
But Information, and transparency, is the most urgent need now, and from now on, I am going to pass along links and sites that ought to get the public interested and involved. I do believe that there is a groundswell of discontent in the land that in past years would have led to the thunder of revolution, rebellion, or civil war. Can't do that any more. Check your History channel.
The upholding of the Constitution (the pursuit of... remember?) under Government Guarantees is soon upon us. Voices are being heard, and they should, must, be listened to. Enough from those who would say "let it pass. Get on with your life. It's over now. Trust justice to take care of us. Everyone deserves what they get. Look in the mirror." Well, I do. It's my mirror, not yours, and I like what I see.
So, I give you links that may open your eyes, and get you involved. Let's start with a lady who writes with clarity, flair, and elegance. I'm looking forward to meeting her.
Melinda Pillsbury-Foster (great name, grand-daughter of the famous photographer Arthur Pillsbury.) She advocates the return of Common Law Courts, the way it started back when. When judges were elected by you and me, and did not need to be trained liars, sorry, lawyers. It's about returning the power to the people. She wrote this over a year ago. How to form Common Law Courts
MAY 18, 2007
This endless search is in grave peril in California.
We got a rare glimpse of what goes on, reading about yesterday's celebrity-lawyer-filled training session held for Loyola law students in their legal lab. The program is named for Judge Larry Fidler who attended, and is otherwise currently presiding in the Phil Spector trial. In the interests of letting a little light into a tangled web of tactical deceit and see how it's practiced, and at the cost of bestowing free publicity, let's try to examine these much admired industry players; Gods, heroes, necessary evils or pond lives, depending on your courtroom experiences (if any) with them:
The celebrity attorney mentors of this new crop of law students included Paris Hilton's drunk driving specialist Richard Hutton. Then there was Thomas Mesereau Jr. who stood up for Michael Jackson in his famous molestaton case; Mark Geragos, who repped Scott Peterson and Gary Condit and Susan McDougal and Winona Ryder.
Harland Braun, who (for a while) worked for actor Robert Blake and director John Landis, and for a police officer accused of beating Rodney King, and at present Lane Garrison. Prosecutors included John Hueston who worked for the team against the Enron corp. Included too was K.C. Maxwell (a female), a rep for I. Lewis "Scooter" Libby, and Richard Gabriel, a jury consultant in many high-profile trials. Oft-quoted Loyola Law School professors Laurie Levenson and Stanley Goldman were also on hand to throw in a few cent's worth of observation.
I am unaware of any pro se's being invited to sit in.
Braun made a stunning pronouncement. He said that as a general rule, it is better to keep your client off the stand and away from questions, for fear the truth might come out and destroy all the damage a skillful attorney may have done to the prosecution's case.
So it's now out in the open; we learn that TRUTH is not concomitant with JUSTICE!
Would that a few members of the public, prospective jurors and self-representing pro pers had been present to keep them honest with a few hard questions for the benefit of the students. But of course, they would not have been allowed in to monitor this clubby conference of celebrity's highest paid beauts.
They might have been able to point out that ordinary middle-class members of the public would probably face bankruptcy were they to become clients and put themselves entirely in the hands of lawyers, none of whom are required to disclose their huge fees. But perhaps that is part of the attraction of a career in U.S. civil and criminal law.
It goes without saying that a defendant has the right to expect a judge will keep all the participants straight and in line when they are under his eye. But will it happen? I could not help hearing the ringing of a bell and recalling my own experience when I observed the mentoring of a bunch of Loyola law students by the judge presiding at my wife's divorce trial against me. Actually in the courtroom, and it led to my pressing a 170.1 disqualification motion against Judge Arnold Gold (which was disallowed and failed - by him, of course.) Here's how I did it:
Georges Marciano & Judge Elizabeth White
I don't know Mr. Marciano, never met him, and I don't wear Guess jeans. I also have no interest (yet) in his run for governor of California. So why do I bring him up here?
Because, folks, what he's doing will be of enormous help to pro pers and pro ses everywhere, so pay attention.
He was in, and because of the heavy-handed actions of another gorilla judge in Los Angeles Superior Court, is now out, of a lawsuit, and it's costing him a default judgment of millions of dollars which includes punitive damages. And by the way, I have no feelings about the merits of the case he got involved with one way or another, because it hasn't come to trial, and I can't examine it.
Unlike most self-represented defendants, he is a multi-millionaire (he and his brothers founded Guess? Jeans), so he uses powerful lawyers who smell his money and will work hard for him (maybe). Here's what I know:
1. He is Jewish, not a wannabe jew like me, and like Madoff, not afraid to attack other jews. By that I mean that Madoff treated everyone as equals.
2. He is not a celebrity, so the celebrity factor is absent.
3. When he writes to Governor Schwartzenegger, he gets a reply, unlike me who was ignored.
4. Judge White will not dare send him to the Twin Towers to prevent him showing up for his court date, unlike what Gold did to me. On my birthday, too. Judicial abuse. Elder abuse. Terrorism run amok in Family Court, tolerated by the authorities. Unless you're profiled as part of a socio-economic minority.
5. I couldn't afford to sue Judge Arnold Gold. My lawyers took all my cash (over $600,000), and Gold evicted me from my mortgage free home to raise more cash which he then gave to the other side's lawyers. He left me with less than three thousand dollars as my community property share of the proceeds, after looting my family's inheritance. Read all about it on this site.
My life is too short, and besides, he already gave me a heart attack. And as a pro se, I would have continued to be treated with contempt by the American justice system, the media, and the L.A. Times. I would have been thrown out of court, possibly to spend what's left of my life on the sidewalk.
Marciano is suing judge Elizabeth White in Federal Court, and also accusing California Supreme Court Justice Ronald George of ignoring Constitutional guarantees. Ron George must be taking notice, and getting a little nervous, especially as Marciano hired Ron George's son as his lawyer. Brilliant move. Hope it doesn't backfire at the California Supreme Court level, George would have to recuse himself. Too obvious a conflict of interest. Same goes for the Judicial Council, who oversee the ethics of not yet "retired" judges. Stay tuned for this, could be a lot of fun.
So, read all about his Constitutional case on Marciano's website. It's full of really useful information. Put it in your Favorites folder. And remember, he's paying millions to his lawyers, and the other side's lawyers. It won't cost us a cent! We'll be intellectual piggy-backers!
We applaud what he's doing, and we support his cause. Let him know that we do, he supplies his personal contact numbers. Let's hope he's successful with his appeals, reverses judge Elizabeth White, and gets into court so his case can be heard. And if he's still up for Governor, we might even vote for him. For sure he'd check new judge applications closely for their mental health, job suitability, and worthiness to be paid out of our tax dollars.
I have one message for Mr. Marciano. THIS IS RIVETING. GO FOR IT! WE'RE WITH YOU AND WE'RE WATCHING THIS FASCINATING POWER PLAY... AND WAITING FOR OBAMA TO GET INVOLVED ...
Anthony Pellicano - Showtime!
He and 5 others were indicted for tapping into phone lines and selling information to whomsoever arranged for the activity, parties to litigation of course, through their lawyers.
A much delayed trial is scheduled to go forward next February 2008. The section of the law which is involved is RICO (see under Topics to the left), and one who got caught up in the enterprise is a prominent celebrity lawyer by the name of Terry Christensen. Now this Esq. is asking for a separate trial to take place PRIOR to Pellicano's on the basis that he had nothing to do with the racketeering, after all, he only had 34 tape-recorded conversations with him, and paid him $100,000. Read about this HERE.
Meanwhile, a number of esquires around here are sweating like Rodney Dangerfield doing his act, except his was for show. >> Questions & comments 0
NOTORIOUS CASES
COURT TV provides an extraordinary, extensive, and thoroughly researched listing and discussion of famous cases. They deal with guilt and innocence, detail courtroom tactics, and provide references to point you in new directions.
Click on any one of the headings, but be warned, your day may fade away as you become absorbed and involved.
Pitching Ideas - Legal Update
You pitch an idea to a production company, nothing happens, and later you find your idea being used in a script.
What to do?
It's long been established that you can copyright a manuscript, but not an idea. But wait!
Legal theory says that if you suspect that your idea has been hijacked, you can sue. On what grounds?
Try these: Misappropriation. Misrepresentation. Unfair Competition. Unfair Business Practices. Interference with Business Advantage.
The Copyright Act, passed by Congress in 1976, served to place idea thefts under the copyright heading, and it became exceedingly difficult to prove a similarity of ideas, whereas a completed writing was more straightforward, where substantial similarity has to be proved.
Then in 1999, one Jeff Grosso sued Miramax over his submitted script "The Shell Game" which in his opinion appeared later as the movie "Rounders".
Copyright actions are heard in Federal Court, not state, and a judge dismissed the suit, usual result.
But the Ninth Circuit, on appeal, while dismissing the copyright claim, found that there was an IMPLIED CONTRACT, and his claim could stand. The chief judge, in her opinion, wrote that "a contract sometimes may be implied even in the absence of an express promise to pay."
Contract matters are heard in State Court, not Federal.
Attorney Gail Migdal Title, (who Lynn and I had the misfortune to come up against in our fight with Universal Television over the fiasco of House Calls), heads the fight that producers are waging to get this ruling overturned. Lew Wasserman is gone now, so without his backing, perhaps their task will not be that easy.
She and her team have now petitioned the Supreme Court for their interpretation of the law, pointing out the inherent conflict, which in theory could give rise to opposite results. Stay tuned for this, it will effect all writers.
McLibel!
This case in England has everything and does it all for me. It pits two underdogs, David Morris, an unemployed postal worker, and Helen Steel, a community gardener for the local council, against the towering McDonald's Corporation in a case where, as environmental activists for Greenpeace, they had made allegedly disparaging statements about the company concerning their employment, food, and substandard "green" practices, which they distributed on the streets in a pamphlet.
The defendants took on their own case pro se, and fought for what became the longest running court case in British legal history. They fought in the appeals court of the Law Lords and later the European Court of Human Rights (ECHR), and even sued Scotland Yard successfully in their accusation that the police had cooperated with the corporation to their detriment.
While they ultimately made their case that the statements were substantially true, McDonald's won a victory of sorts, with damages valued at around $100,000, never collected, and deemed to be Pyrrhic in the sense that it was for them a public relations disaster.
For the details of this splendid case McDonald's Restaurants v Morris & Steel, read up on it HERE.
You will read the following:
On 15 February 2005, the pair's 20-year battle (and 11-year court battle) concluded when the ECHR ruled that the original case had breached Article 6 (right to a fair trial) and Article 10 (right to freedom of expression) of the European Convention on Human Rights and ordered that the UK government pay the original defendants £57,000 in compensation. The ECHR criticised the way in which UK laws had failed to protect the public right to criticise corporations whose business practices affect people's lives and the environment (which violates Article 10) and criticised the biased nature of the trial due to the defendants' lack of legal aid, the complex and oppressive nature of the UK libel laws, and the imbalance in resources between the parties to the case (which violates Article 6).
The Granddaddy for defamation suits, NY Times v. Sullivan (1964)
Much mischief has been done to the themes treated here, for this case concerned itself with the utterances and writings of ordinary people, including the press, towards public paid officials, critical of them in the conduct of their official duties. The public officials sought to protect themselves from criticism using the then laws of Alabama towards defamation. It would be hard not to agree with the court's findings, in overturning Alabama law.
Where, then, the mischief?
It is to be found in the definition of "public figures." Our founding fathers were concerned with protecting the free speech of all who would criticize public officials in the performance of their duties.
But celebrities? Upon the inclusion of any and all celebrities, defined perhaps as those who willingly or otherwise get involved in disputes "in a public or private manner", upon this shaky ground a whole industry has grown. And in many cases it has brought huge suffering to those so defined, and immeasurable harm to their innocent children. Now, anyone can become the subject of malicious gossip about their private lives.
Mr. Justice Brennan said, in his opening remarks on behalf of the highest court of the land, "We are required in this case to determine for the first time the extent to which the constitutional protection for speech and press limit a State's power to award damages in a libel action brought by a public official against critics of his official conduct."
The question of whether a non public official's "official conduct", an obsurdity on its face, would be held to the same standard was not before the court.
A huge leap of understanding on the part of greedy profit-seeking members of the public media, and their constitutional lawyers.
It is time that the Supremes re-defined the laws of libel, as it pertains to those who, by any definition, are not "public officials", or "government officials".
And if I am accused of making a self-serving statement, then yes, indeed I am.
AMD VS. INTEL
This looks to be a doozer of a case. Here is the complaint, it's about monopolistic practices alleged by AMD against Intel.
Useful for the purposes of seeing a Complaint in Federal Court very expertly put together by professionals.
The Debacle of Family Court
A family law attorney's article in today's Los Angeles Daily Journal gives us a current status report on this court's procedures, and California law or lack thereof, under which decisions affecting human relationships are made.
We are told the following, as of now, in this Year of our Lord 2005:
- That pre-marital or post-marital agreements are a good thing to enter into with the help of attorneys and accountants, but they may or may not be upheld in court.
- That custody "move-aways" may or may not be upheld, depending on circumstances.
- Domestic Violence Allegations proved with the help of attorneys "trained in both Criminal and Family Law" to be either true or false, should determine the outcome.
- Support Waivers in pre-marital agreements only to be permitted if the agreement was made with both sides having attorney representation. However, a court can still rule that the agreement is "unconscionable" if enforced.
- Contracts made during marriage between spouses regarding property ownership have conflicting views in the courts and may or may not be upheld.
- Valuation of goodwill generated by a celebrity through endorsements, record contracts, movie contracts, and public appearances is nil. But a self-employed professional earning $200,000 a year (attorney, accountant, therapist?) could be assigned goodwill of $125,000.
- As of January 1, 2005, it is unclear whether the courts will uphold community property and support rights of "registered partners" retro-actively.
- Collaborative Law. This is an alternative method of divorcing which involves a team that works together to resolve the issues brought forth by the breakup of the family. The team consists of the parties' attorneys, coaches for the parents to help with the emotional side of the conflict, a financial planner, and a parenting specialist for issues of custody and visitation. One kicker is that in the event it falls apart, both attorneys must resign, and the cost easily exceeds the more usual methods!
- California Family Code section 2024.6 can have the court seal any pleading that reveals the assets and liabilities of either party at their request.
- Child abduction. The States have come up with the Uniform Child Custody Jurisdiction and Enforcement Act, and the Feds have come up with Parental Kidnapping Prevention Act. And internationally, there is a widely signed Convention on the Civil Aspects of International Child Abduction.
I SUBMIT that the nature of the above material is misleading garbage to the underlying issues in order to save a flourishing industry. Read my sidebar, The Plight of the Pro Se.
I SUBMIT that the authorities are simply busy throwing out the baby with their stale bath water.
I SUBMIT that the average Joe and Jane on the street care about their kids, conceived their babies in love, and simply want to be a part of their growing-up years.
I SUBMIT that a baby is initially organically and viscerally a part of the psyche of the parent, both of them.
I SUBMIT that due to the failure of the authorities (read the legislators, the courts and the attorneys) to come up with an answer that embraces this fundamental human concept, there are Joes and Janes in this world who, distrusting the enormous powers of the authorities, will do drastic things including killing either themselves and/or their partners and/or their babies. And/or other people unrelated to their domestic problems.
I SUBMIT that such people CAN SOMETIMES lose their sanity, and their ability to survive in the new world selected for them by attorneys, forensic accountants, medical experts, child "evaluators", judges, the courts, and at the end law enforcers.
WHENEVER I READ ABOUT A PUBLIC TRAGEDY, SUCH AS LAST WEEK'S TRAIN WRECK WHERE A SUICIDAL MAN CAUSED THE DEATHS OF ELEVEN PASSENGERS AND MILLIONS OF DOLLARS IN PROPERTY DAMAGE, I say to myself that investigation of the circumstances will reveal that a domestic issue in crisis lies at the bottom of it. And even these same authorities say that there is no form of security or protection existing that will protect the public from that type of incident.
I CALL UPON OUR GOVERNOR ARNOLD SCHWARTZENEGGER, FOR THE PUBLIC GOOD, TO USE HIS AUTHORITY TO FORM A TASK FORCE FOR THE PURPOSE OF FINDING A SOLUTION.
IT WILL SEEK TO BREAK THROUGH THE FAMILY COURT LEGAL RITUALS WHICH ARE NOT UNDERSTOOD BY MOST PEOPLE, ARE SELF-DEFEATING AND TIME-CONSUMING AND SUBJECT TO FINANCIAL FRAUD AND ABUSE, TO THE DETRIMENT OF THE LIVES OF OUR CHILDREN AND THEIR PARENTS, AND BREAK NEW GROUND. IT WON'T BE POPULAR WITH THE ABOVE MENTIONED LEGAL COMMUNITY, MANY OF WHOM ARE MEDIA ATTENTION SEEKERS WITH A BUILT IN CONFLICT OF INTEREST, BUT IT MAY PREVENT FUTURE "ACCIDENTS" THAT TAKE THE LIVES OF INNOCENT PEOPLE.
Nicolette Hannah Clark v. John Clark BF 013155 (filed January 1999)
This was the Grand-daddy of my cases, this started everything, and the filing downtown at Superior Court by James Eliaser, Esq. was intercepted by The National Enquirer, and the London Times, People Magazine, The Daily Mail, and so on and on, as could have been expected.
My readers are asked to put themselves in my shoes. First check out under "My Family", the entries under Zachary, my youngest son.
There, you will see that Zach is a great kid, born under circumstances that should have enabled him to have a great start in life, but it was denied him by just about everyone for reasons that you should have been been able to follow, and more especially by the court who should have managed the case in a circumspect way.
Anyway, what follows is part of the court record, for I made sure to get it on the record in my case.
My first inkling that something was amiss was when I came across a note that Zach had scribbled to his young friends Sam and Hank (whom I did not know). I had recently employed Ernesto, my plumber, to re-pipe the little cottage with copper pipe. He had done so, but I was not then aware of his reputation with the women of Topanga.
I inspected the little cottage, and came up with much graphic evidence of what had been going on. I questioned Zach further, and he then gave me the following letter which he had not yet delivered to his friends.
Now I was as troubled as he was, for apparently he was expecting me to lead him and his friends and help them run away from their homes! Oh boy.
I decided upon the following course of action. If Ernesto and Nicolette wished to carry on together, it was no business of mine, but certainly they should not be doing it while the kid was in the house, just the other side of the wall. I resolved to meet with Ernesto where he worked, which was as the caretaker at Topanga's Theatricum Bottanicum, the local theatre created by Will Geer. He did not know I was wired, and this is part of what I recorded.
Judge Gold read this into the record during trial, and I thought he did it as a way to get it in, because certainly I had no right to be secretly recording our conversation. What I did not know was that he had plans to retire right after my second trial, the one with Lynn, which took place just a month after this one.
After his rulings, I lost Zachary, I lost my house, I lost most of my money, I lost most of my possessions, I appear to have lost my cases (but it's not over yet) and now it seems I have lost all of my children.
Well, I've gained a new wife, and I've gained this new way to record the events leading up to it, for all to see.
Hollywood lawsuits - an Overview
John Cones, a lawyer, has written a well-researched book on the subject of how business is transacted in Hollywood, and what happened when things didn't go as planned, although a cynic may wonder that things did in fact go as planned (the cost of doing business theory.) Buchwald, Garner, Welch, Newman, Hoffman, Brando, Beatty, Goldberg, Fonda, Hepburn are among dozens who got involved in lawsuits with, it's safe to say, one or more of all of the major film studios, usually over profit participations and other contractual issues. The years of waiting wasted, and in some cases the destruction of careers, is depressing. This is a lengthy excerpt from his book.
Knievel v. ESPN, (9th Circuit, January 4, 2005)
First interesting case of the new year, I'd say, about Defamation.
The Ninth, not unanimously, found for the defendants "as a matter of law".
ESPN is a subsidiary of Walt Disney, Inc., and Knievel sued in State court in Montana, where he lives, and the case was later transferred to Federal court there.
Seems that ESPN took pictures of Evel with his arms around his wife, and another woman, not identified. Then they ran the picture, and others, on their website, and captioned it "Evel Knievel proves that you're never too old to be a pimp."
The justices looked at all of the pictures, and the captions. They found that some others made somewhat less objectionable fun of the subjects. One showed a woman in a black dress, and it said that she was "lookin' sexy, even though we all know she is hardcore." Another showed a man wearing shades "...so the ladies can't see him scoping."
The court backed the federal judge in Montana.
I found it interesting, because it deals with the division between funny and serious.
We've all been in situations where we straddle the fence of this divide, hoping to get the best of both worlds. But there is no bright line.
We say something in a kidding fashion, and the target decides to treat the remark as serious. And sometimes we say the funny bit in order to be taken seriously, and get ignored. And we actors know it is much harder to do comedy, every time - but I digress.
For this court, context was all.
M. G. v. Time-Warner(2001)
This is for me the most important of cases, because the appeal review goes into the very issues addressed by the SLAPP rules, in clear language and multiple authorities. And it was presented to Time-Warner, Defendants, my opponents.
United States v. Martha Stewart
I've never met Martha Stewart, but I studied this case, and do I have an opinion? You bet I do.
The poor woman is suffering the shame and indignity of dispiriting confinement in a federal prison. And believe me, that is not a funny human experience, regardless of Leno/Letterman jokes. Will she rise above it, will she somehow turn the experience into a plus? We will find out by and by.
But the results of negative case verdicts and punishments tend to congeal with time like slow setting concrete. The chances to turn things around disappear, because even your own people want to move on. Leaving you sitting there surrounded by wreckage, like you've been hit by a tsunami.
I believe that her attorneys committed a huge blunder. They decided to not put her on the stand, no doubt, experience tells me, with the advice that she must not interfere with their decision. "Trust us, do as we say." is the way it's usually put to the client.
I want to look at that decision, and I'm quite sure that she wanted to be on that stand.
I'm quite sure that, given the chance, she would have got up there and delivered a stunning lecture on the workings of the stock market.
Martha Stewart had been a professional stockbroker, knew the workings of the stock market, how to play it, and now enjoys herself while doing it. And like most professionals, one can suppose she is familiar with the workings of the technical approach to stock market activity, and how it is graphically illustrated with the use of charts.
Playing the market with the use of charts is my hobby (at least it was when I had money.)
I checked out the chart of IMCL (Imclone Systems, the cancer drug company) at the time in question in December 2001, and she was perfectly reasonable, as a chartist, to draw a horizontal line at 60 and say to herself that if it dropped below 60, she would sell it.
Did she place and record a stop with the specialist at that price? No, but then most savvy speculators don't do that, the specialist has a habit of setting them off to his own account advantage, before letting the price climb back up. So instead, one places a "mental stop". It would either take off up from 60, or plunge down through 60, is the theory.
She goes on vacation, having left the instruction with her broker to sell if the price touches 60. If it was going down through 60, she planned to be out of it.
And it happened that on December 21, 2001, her broker told her by phone during a plane stopover that another client was selling because of information that the FDA was rejecting the cancer drug. And she sold out then and there BECAUSE THE STOCK WOULD BREAK DOWN THROUGH 60. Her intent was fulfilled, and she made a profit.
Her problem at trial was that she needed to educate the judge, and the jury, and the press, and the public about the esoteric nature of charting the market.
Fundamentalists (investors?), usually amateurs, who play the market their way don't even want to study or understand the charting approach to making a profit. One might guess that none of the jury knew it, the judge didn't know it, and her own attorneys weren't familiar with it. Besides, there are many otherwise sophisticated market players who scorn the approach, and will have none of it, usually because they just don't understand it. Expert witnesses could have been brought in to help, such as Don Worden, who heads a well-known web-based charting service.
And while we're at it, nobody appears to be asking who leaked the information of the cancer drug rejection in the first place. An employee of the FDA? And shouldn't THEY be held accountable? Because such decisions should be kept a deep dark secret until an announcement is about to be made, when a halt is called in the trading of the stock in question. Then nobody can buy or sell, and that's the way it's supposed to happen.
Sorry, but I think this is another example of the expensive attorney crowd once again getting caught out by their own sense of God-like invincibility. And the media and the public and certain important people looking for blood. Transparency is everything in courtrooms, and it didn't happen here. American justice, a blood sport indeed.
I posted this comment on the web, and someone wrote to say that whatthehell, justice is just "screwed up". Well, I don't believe that justice is ever "screwed up".
Just as I don't believe that judges are ever "jerks", or attorneys are ever "morons", commonly applied terms, because those words suggest permanent shortcomings in their mental equipment.
Laws are instruments written, tested and perfected over time, and judges are appointed and lawyers are licensed to high standards so as to admit good competency for their proper application.
I believe that when justice isn't working it is because it has become corrupted, a better word might be perverted, usually by conflicts of interest among the participants, conflicts hidden or obscured, driven by the money-engine.
And our system of justice provides no practical method of correction (forget the appeals oversight process where they shoot the wounded, or the Supreme Court review where their favorite resolution is "Review Denied" in over 97% of cases). The concrete, having been cast, sets.
It seems to me that what is lacking today is the quality known as "character" in the people who matter. "Ethics", is the legal word for it, the word that says it all, and it's actually taught to these people!
There's a joke about the new Ethics Question on current ABA law exams. It goes like this:
A lawyer in a two-man practice does some legal work for an elderly client on her estate planning. It only takes a couple of hours and the lawyer bills her $850.00 for his time. A couple of weeks later he gets a check from her for $8,500.00. Today's ethics question is: Should the lawyer tell his partner?
And we're supposed to upgrade the other half of the world to our version of democracy. But that's a whole other subject.
Martha Stewart (more)
March 7, 2005
While we welcome back Martha Stewart to the land of the living, and having just watched her triumphant televised speech to her assembled company, we are left with unanswered questions, questions which the press either doesn't want to ask, or is too dumb to ask (no, not where was her missing electronic ankle bracelet). Namely,
Was what she did a crime? (Yes, of course, so it was ruled)
Should an indicted felon be permitted to make money off their crime? (No, of course not)
OK, then, now she's on appeal, right? (Yes)
[If my analysis which follows is flawed, perhaps someone will point out where and how.]
If she wins her appeal, and if and when she proves that she was wrongly convicted, where does that leave the United States of America that put her in prison? (Liable for her wrongful incarceration, her emotional distress, her loss of freedom, her loss of assets, etc. etc.? And I don't think the State can plead for immunity from that charge)
It seems to me that there should be a law that says if a losing party files an appeal after trial, then that person should not be permitted to serve the time, or pay the penalty, until the appeal is heard and ruled upon with finality.
Or, alternatively, if the losing party chooses to serve their sentence, then that should be an admission that they were justly ruled against, and an appeal should be barred.
Since I don't think such a law exists, and since she should never have been convicted in the first place (I already gave my reasons), what she is doing now is pure strategy, and a good one, because now she can have it both ways.
And so again we see that going to court for resolution of disputes in front of judges, in this country, consists of coming up with a winning strategy. It has nothing to do with morality, nor justice, nor even seeing that "right was done", which was the unarguable intention of the founding fathers' creation of our Constitution, since trivialized.
Now it has come down to just the agendas of lawyers - money - and with their ongoing legal games, leading to ongoing legal fees. And the new game in town, how to enable celebrities to be stripped of their wealth (cf. Michael Jackson, Kobe Bryant, Lynn Redgrave).
(Later)
Her Appeal failed. Of course!
