Fascinating article about lost opportunities in Mexico. Worth noting.....
http://www.latimes.com/news/local/la-me-lopez29-2009mar29,0,88438.column
Sunday, March 29, 2009
Sunday, March 15, 2009
10 Common Mistakes When You Face A DUI Arrest
1. Not taking the matter seriously. This is a charge that could follow you for years, if you are convicted. The DMV records it for years. It is a “prior criminal conviction” for 7 years. If your license is taken away, you have to prepay for an SR-22 endorsement to your policy. Your insurance company may also cancel or raise your rates by thousands of dollars based on your conviction. You face probation for 3 to 5 years, jail, drinking driver programs, and license suspension. And finally, it is alarming how many are affected in their employment.
2. Not hiring an attorney and, if possible, a specialist in DUI defense. The law is complex and you need competent representation. You must raise the right defenses at the right time or you will lose them. Facts will disappear, memories fade, and witnesses vanish. You want an attorney who knows how to handle your case. Guilty or not, the DA must prove every element of the offense beyond a reasonable doubt. Only a competent attorney can challenge the breath or blood alcohol test. A knowledgeable attorney can frequently get you plea bargains, reduced sentences, reduced sentences, or reduced charges.
3. Hiring an attorney based on the amount of the fee alone. The State has almost unlimited resources when it comes to your case. You need to hire an attorney and pay a fee, which will allow him to put time and effort into your case, to counter the prosecution. If you go too low, your attorney will probably not be able to put in the time necessary to protect you. Look for a lawyer worth spending money on, not the cheapest.
4. Not Fighting the License Suspension. If you do not request a hearing within 10 days, you will not be able to drive until after a hearing, or for 4 months to a year or longer. Driving during this time is a criminal offense, regardless of whether you need to drive for work or personal reasons. Importantly, these cases can be won.
5. Driving after your license has been suspended. You have no right to drive after revocation and driving then is a serious offense. There is no permission for you to drive for work or personal reasons unless you’re properly enrolled in a drinking driver program. After a period of time, you may qualify for an interlock device. If arrested for driving during this time, you may have to post a bail bond just to get out of jail. If convicted, you face days in jail.
6. Assuming the Case Can't Be Won. Assuming the case can't be won is the number one biggest mistake you can make in facing a DUI arrest and charge. Your case may be so difficult or problematic that you choose against a jury trial, but this decision should never be made in the blind. You would be amazed at the potential array of defenses available, and the results that were initially unforeseeable, which ended without a DUI conviction or license suspension.
7. Failing to find out if the Breath Test or Blood Test Rules were followed. Breath tests and blood tests can be attacked when it is discovered that the rules were not followed properly. California has detailed rules that dictate how these BAC tests are to be administered and how the devices are to be maintained, repaired and calibrated. One mistake can be crucial in the defense. "Mistakes" mean unreliability of the results. Expert review of these tests is relatively inexpensive given the seriousness of the consequences. One classic example is the violation of the 15-minute observation law before taking a breath test. Why would anyone plead guilty to this crime without looking at the evidence upon which the case stands? Find a lawyer who has experience in successfully challenging these test results, and you may avoid a conviction.
8. Fail to appear in Court. The Court will issue a bench warrant for your arrest and revoke any bond. The next time you are stopped for a traffic infraction, you will be spending some time in jail and posting a bond for your future appearances.
9. Talk to anyone but an attorney about your case. Anything you say to them can be used against you. When you discuss your arrest with friends or family, you risk turning them into involuntary witnesses against you. It is in your best interest to remember the details of your arrest. It will help you in your defense. In any criminal case, you should be represented by a competent defense lawyer. You may choose a lawyer or risk the consequences of representing yourself. By hiring an attorney immediately following your arrest, you won't miss any deadlines.
10. Think that talking to numerous attorneys will help you handle it on your own. If at all possible, you need to have an attorney go to Court with you. Who that lawyer is, and the experience and qualifications of your lawyer, is your choice. Make your best choice and give yourself the best protection you can.
2. Not hiring an attorney and, if possible, a specialist in DUI defense. The law is complex and you need competent representation. You must raise the right defenses at the right time or you will lose them. Facts will disappear, memories fade, and witnesses vanish. You want an attorney who knows how to handle your case. Guilty or not, the DA must prove every element of the offense beyond a reasonable doubt. Only a competent attorney can challenge the breath or blood alcohol test. A knowledgeable attorney can frequently get you plea bargains, reduced sentences, reduced sentences, or reduced charges.
3. Hiring an attorney based on the amount of the fee alone. The State has almost unlimited resources when it comes to your case. You need to hire an attorney and pay a fee, which will allow him to put time and effort into your case, to counter the prosecution. If you go too low, your attorney will probably not be able to put in the time necessary to protect you. Look for a lawyer worth spending money on, not the cheapest.
4. Not Fighting the License Suspension. If you do not request a hearing within 10 days, you will not be able to drive until after a hearing, or for 4 months to a year or longer. Driving during this time is a criminal offense, regardless of whether you need to drive for work or personal reasons. Importantly, these cases can be won.
5. Driving after your license has been suspended. You have no right to drive after revocation and driving then is a serious offense. There is no permission for you to drive for work or personal reasons unless you’re properly enrolled in a drinking driver program. After a period of time, you may qualify for an interlock device. If arrested for driving during this time, you may have to post a bail bond just to get out of jail. If convicted, you face days in jail.
6. Assuming the Case Can't Be Won. Assuming the case can't be won is the number one biggest mistake you can make in facing a DUI arrest and charge. Your case may be so difficult or problematic that you choose against a jury trial, but this decision should never be made in the blind. You would be amazed at the potential array of defenses available, and the results that were initially unforeseeable, which ended without a DUI conviction or license suspension.
7. Failing to find out if the Breath Test or Blood Test Rules were followed. Breath tests and blood tests can be attacked when it is discovered that the rules were not followed properly. California has detailed rules that dictate how these BAC tests are to be administered and how the devices are to be maintained, repaired and calibrated. One mistake can be crucial in the defense. "Mistakes" mean unreliability of the results. Expert review of these tests is relatively inexpensive given the seriousness of the consequences. One classic example is the violation of the 15-minute observation law before taking a breath test. Why would anyone plead guilty to this crime without looking at the evidence upon which the case stands? Find a lawyer who has experience in successfully challenging these test results, and you may avoid a conviction.
8. Fail to appear in Court. The Court will issue a bench warrant for your arrest and revoke any bond. The next time you are stopped for a traffic infraction, you will be spending some time in jail and posting a bond for your future appearances.
9. Talk to anyone but an attorney about your case. Anything you say to them can be used against you. When you discuss your arrest with friends or family, you risk turning them into involuntary witnesses against you. It is in your best interest to remember the details of your arrest. It will help you in your defense. In any criminal case, you should be represented by a competent defense lawyer. You may choose a lawyer or risk the consequences of representing yourself. By hiring an attorney immediately following your arrest, you won't miss any deadlines.
10. Think that talking to numerous attorneys will help you handle it on your own. If at all possible, you need to have an attorney go to Court with you. Who that lawyer is, and the experience and qualifications of your lawyer, is your choice. Make your best choice and give yourself the best protection you can.
Thursday, March 12, 2009
Adminstration argues Detainees at Guantanamo have No Due Process Rights
The Obama Administration, taking its first position in a federal court on claims of torture of Guantanamo Bay detainees, urged the D.C. Circuit on Thursday to reject a lawsuit by four Britons formerly held there. In addition, the new filing argued that a recent appeals court ruling makes clear that “aliens held at Guantanamo do not have due process rights.”
Lawyers for the four former prisoners, in their own new filing, argued that they have constitutional rights that they can assert against former Pentagon officials and officers who authorized and carried out torture while the Britons were in captivity. The lawyers contended that the Constitution’s guarantee of due process applies to those who were held at the U.S. military prison in Cuba.
Both new briefs were filed in Rasul, et al., v. Myers, et al., (D.C. Circuit Court docket 06-5209) is here.
The Supreme Court last December had ordered the Circuit Court to reconsider the Rasul case, in the wake of the Justices’ ruling last June in Boumediene v. Bush. The Circuit Court called for new briefs. Each side is to file a reply brief on March 23.
Lawyers for the four former prisoners, in their own new filing, argued that they have constitutional rights that they can assert against former Pentagon officials and officers who authorized and carried out torture while the Britons were in captivity. The lawyers contended that the Constitution’s guarantee of due process applies to those who were held at the U.S. military prison in Cuba.
Both new briefs were filed in Rasul, et al., v. Myers, et al., (D.C. Circuit Court docket 06-5209) is here.
The Supreme Court last December had ordered the Circuit Court to reconsider the Rasul case, in the wake of the Justices’ ruling last June in Boumediene v. Bush. The Circuit Court called for new briefs. Each side is to file a reply brief on March 23.
Wednesday, March 11, 2009
Court Rules Against Minority Districts
Dividing 5-4, the Supreme Court ruled on Monday that federal voting rights law does not require the creation of a new legislative district when that would include a racial minority group that has less than 50 percent of the population, as a remedy when minority voters’ rights have been diluted. Only when a group of minority voters would form a majority in a single-member district must it be created as a remedy under Section 2 of the Voting Rights Act of 1965, the Court ruled in Bartlett v. Strickland (07-689).
Justice Anthony M. Kennedy’s opinion decided the case, but spoke for only three of the Court’s members; he was joined by Chief Justice John G. Roberts, Jr., and Justice Samuel A. Alito, Jr. Justice Clarence Thomas, joined by Justice Antonin Scalia, supported only the result, arguing that “vote dilution” claims of any kind simply are not allowed under the 1965 law.
Kennedy’s plurality opinion did say that, if state legislatures wished to create a district when a minority group would have less than a 50 percent majority, federal law does not forbid that. That is usually considered a “crossover district” because minorities, while not having a majority, are able to attract enough white voters’ support to elect their preferred candidates.
Still, Kennedy went on, the Court was not saying that legislatures could pass a law that would “entrench” a majority district in which minorities dominate; that would raise constitutional problems of its own, the opinion said.
The decision was one of four the Court released on Monday before beginning a two-week recess. Here in summary are the outcomes in the other cases:
** By a 7-2 vote, the Court ruled that a state is not responsible for the delays in getting a criminal case to a trial, if those delays are the result of tactics or omissions by public defender lawyers. Just because a court-appointed lawyer is from a public defender’s office, the Court said, does not make those attorneys government actors, as such, for whom the state is responsible for their tactical choices. Assigned counsel’s blame for delays are to be attributed to the defense, not the state — unless there is a complete breakdown in the public defender system, the Court decided in Vermont v. Brillon (08-88). Justice Ruth Bader Ginsburg wrote for the Court.
** Over four partial dissenting votes, the Court ruled that a firm seeking to compel arbitration of a dispute may take the case to a federal District Court only if the underlying controversy could have been litigated in federal court. A federal court has no jurisdiction, Justice Ginsburg wrote for the Court, to order arbitration of “a slice of a controversy when the controversy as a whole” would be beyond its reach. The ruling came in a dispute over a claimed failure of a consumer to pay a credit card balance (Vaden v. Discover Bank, 07-773).
** Ruling unanimously, the Court decided that the $40 per day fee for witnesses in regular federal court proceedings also applies when witnesses are summoned to appear in a case under the Court’s Original jurisdiction. The ruling, written by Justice Alito, rejected a challenge by the state of Kansas to a special master’s fee decision in a long-running dispute with Colorado over water rights in the Arkansas River. (The case is Kansas v. Colorado, 105 Original.)
Justice Anthony M. Kennedy’s opinion decided the case, but spoke for only three of the Court’s members; he was joined by Chief Justice John G. Roberts, Jr., and Justice Samuel A. Alito, Jr. Justice Clarence Thomas, joined by Justice Antonin Scalia, supported only the result, arguing that “vote dilution” claims of any kind simply are not allowed under the 1965 law.
Kennedy’s plurality opinion did say that, if state legislatures wished to create a district when a minority group would have less than a 50 percent majority, federal law does not forbid that. That is usually considered a “crossover district” because minorities, while not having a majority, are able to attract enough white voters’ support to elect their preferred candidates.
Still, Kennedy went on, the Court was not saying that legislatures could pass a law that would “entrench” a majority district in which minorities dominate; that would raise constitutional problems of its own, the opinion said.
The decision was one of four the Court released on Monday before beginning a two-week recess. Here in summary are the outcomes in the other cases:
** By a 7-2 vote, the Court ruled that a state is not responsible for the delays in getting a criminal case to a trial, if those delays are the result of tactics or omissions by public defender lawyers. Just because a court-appointed lawyer is from a public defender’s office, the Court said, does not make those attorneys government actors, as such, for whom the state is responsible for their tactical choices. Assigned counsel’s blame for delays are to be attributed to the defense, not the state — unless there is a complete breakdown in the public defender system, the Court decided in Vermont v. Brillon (08-88). Justice Ruth Bader Ginsburg wrote for the Court.
** Over four partial dissenting votes, the Court ruled that a firm seeking to compel arbitration of a dispute may take the case to a federal District Court only if the underlying controversy could have been litigated in federal court. A federal court has no jurisdiction, Justice Ginsburg wrote for the Court, to order arbitration of “a slice of a controversy when the controversy as a whole” would be beyond its reach. The ruling came in a dispute over a claimed failure of a consumer to pay a credit card balance (Vaden v. Discover Bank, 07-773).
** Ruling unanimously, the Court decided that the $40 per day fee for witnesses in regular federal court proceedings also applies when witnesses are summoned to appear in a case under the Court’s Original jurisdiction. The ruling, written by Justice Alito, rejected a challenge by the state of Kansas to a special master’s fee decision in a long-running dispute with Colorado over water rights in the Arkansas River. (The case is Kansas v. Colorado, 105 Original.)
Detainee Issues Continue to be Thorny
A federal judge has raised the prospect that the federal courts may lose their authority to review prolonged detention of some Guantanamo Bay detainees who get cleared for release, but have no other country to which they could safely be sent. The Justice Department has sent a signal that it may in time ask for that outcome, but indicated it wanted the issue put off for now.
The Supreme Court last June ruled that the detainees have a constitutional right to go to court to challenge their continued imprisonment, and should have at least the possibility of gaining “conditional release.” But court-ordered release may not be an option, if the courts do lose their jurisdiction.
The Justice Department, in a new filing in District Court Monday, said that, if it turns out — after a new review ordered by President Obama of the status of each Guantanamo detainee — that a detainee is newly eligible for release from the Navy prison there, “there will be no relief” available from the courts, and the only remaining chance of actual release would be diplomatic efforts to find another country for resettlement.
Those diplomatic efforts cannot be directed by any court, the Department added. It thus appeared that, if those efforts do not succeed, or are delayed, the detainees could have to remain in U.S. custody, at Guantanamo or elsewhere. The President has ordered Guantanamo closed within a year, but the government has made no decision about whether or where detainees might be confined after that.
These developments are unfolding in the U.S. District Court in Washington of Judge Reggie B. Walton. Earlier this month, the judge told lawyers in cases involving detainees already approved to leave Guantanamo that a recent decision by the D.C. Circuit Court may mean District judges could lose jurisdiction to provide any further review of continued detention by the U.S. military.
The Supreme Court last June ruled that the detainees have a constitutional right to go to court to challenge their continued imprisonment, and should have at least the possibility of gaining “conditional release.” But court-ordered release may not be an option, if the courts do lose their jurisdiction.
The Justice Department, in a new filing in District Court Monday, said that, if it turns out — after a new review ordered by President Obama of the status of each Guantanamo detainee — that a detainee is newly eligible for release from the Navy prison there, “there will be no relief” available from the courts, and the only remaining chance of actual release would be diplomatic efforts to find another country for resettlement.
Those diplomatic efforts cannot be directed by any court, the Department added. It thus appeared that, if those efforts do not succeed, or are delayed, the detainees could have to remain in U.S. custody, at Guantanamo or elsewhere. The President has ordered Guantanamo closed within a year, but the government has made no decision about whether or where detainees might be confined after that.
These developments are unfolding in the U.S. District Court in Washington of Judge Reggie B. Walton. Earlier this month, the judge told lawyers in cases involving detainees already approved to leave Guantanamo that a recent decision by the D.C. Circuit Court may mean District judges could lose jurisdiction to provide any further review of continued detention by the U.S. military.
Thursday, March 5, 2009
Sealing your Record in Florida
With the onset of an annual Spring Ritual, I post information about sealing a criminal record in Florida. Be careful and "party responsibly", as you join us for Spring Break 2009.
943.059 Court-ordered sealing of criminal history records.--The courts of this state shall continue to have jurisdiction over their own procedures, including the maintenance, sealing, and correction of judicial records containing criminal history information to the extent such procedures are not inconsistent with the conditions, responsibilities, and duties established by this section. Any court of competent jurisdiction may order a criminal justice agency to seal the criminal history record of a minor or an adult who complies with the requirements of this section. The court shall not order a criminal justice agency to seal a criminal history record until the person seeking to seal a criminal history record has applied for and received a certificate of eligibility for sealing pursuant to subsection (2). A criminal history record that relates to a violation of s. 393.135, s. 394.4593, s. 787.025, chapter 794, s. 796.03, s. 800.04, s. 810.14, s. 817.034, s. 825.1025, s. 827.071, chapter 839, s. 847.0133, s. 847.0135, s. 847.0145, s. 893.135, s. 916.1075, a violation enumerated in s. 907.041, or any violation specified as a predicate offense for registration as a sexual predator pursuant to s. 775.21, without regard to whether that offense alone is sufficient to require such registration, or for registration as a sexual offender pursuant to s. 943.0435, may not be sealed, without regard to whether adjudication was withheld, if the defendant was found guilty of or pled guilty or nolo contendere to the offense, or if the defendant, as a minor, was found to have committed or pled guilty or nolo contendere to committing the offense as a delinquent act. The court may only order sealing of a criminal history record pertaining to one arrest or one incident of alleged criminal activity, except as provided in this section. The court may, at its sole discretion, order the sealing of a criminal history record pertaining to more than one arrest if the additional arrests directly relate to the original arrest. If the court intends to order the sealing of records pertaining to such additional arrests, such intent must be specified in the order. A criminal justice agency may not seal any record pertaining to such additional arrests if the order to seal does not articulate the intention of the court to seal records pertaining to more than one arrest. This section does not prevent the court from ordering the sealing of only a portion of a criminal history record pertaining to one arrest or one incident of alleged criminal activity. Notwithstanding any law to the contrary, a criminal justice agency may comply with laws, court orders, and official requests of other jurisdictions relating to sealing, correction, or confidential handling of criminal history records or information derived therefrom. This section does not confer any right to the sealing of any criminal history record, and any request for sealing a criminal history record may be denied at the sole discretion of the court.
(1) PETITION TO SEAL A CRIMINAL HISTORY RECORD.--Each petition to a court to seal a criminal history record is complete only when accompanied by:
(a) A valid certificate of eligibility for sealing issued by the department pursuant to subsection (2).
(b) The petitioner's sworn statement attesting that the petitioner:
1. Has never, prior to the date on which the petition is filed, been adjudicated guilty of a criminal offense or comparable ordinance violation, or been adjudicated delinquent for committing any felony or a misdemeanor specified in s. 943.051(3)(b).
2. Has not been adjudicated guilty of or adjudicated delinquent for committing any of the acts stemming from the arrest or alleged criminal activity to which the petition to seal pertains.
3. Has never secured a prior sealing or expunction of a criminal history record under this section, former s. 893.14, former s. 901.33, former s. 943.058, or from any jurisdiction outside the state.
4. Is eligible for such a sealing to the best of his or her knowledge or belief and does not have any other petition to seal or any petition to expunge pending before any court. Any person who knowingly provides false information on such sworn statement to the court commits a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.
(2) CERTIFICATE OF ELIGIBILITY FOR SEALING.--Prior to petitioning the court to seal a criminal history record, a person seeking to seal a criminal history record shall apply to the department for a certificate of eligibility for sealing. The department shall, by rule adopted pursuant to chapter 120, establish procedures pertaining to the application for and issuance of certificates of eligibility for sealing. A certificate of eligibility for sealing is valid for 12 months after the date stamped on the certificate when issued by the department. After that time, the petitioner must reapply to the department for a new certificate of eligibility. Eligibility for a renewed certification of eligibility must be based on the status of the applicant and the law in effect at the time of the renewal application. The department shall issue a certificate of eligibility for sealing to a person who is the subject of a criminal history record provided that such person:
(a) Has submitted to the department a certified copy of the disposition of the charge to which the petition to seal pertains.
(b) Remits a $75 processing fee to the department for placement in the Department of Law Enforcement Operating Trust Fund, unless such fee is waived by the executive director.
(c) Has never, prior to the date on which the application for a certificate of eligibility is filed, been adjudicated guilty of a criminal offense or comparable ordinance violation, or been adjudicated delinquent for committing any felony or a misdemeanor specified in s. 943.051(3)(b).
(d) Has not been adjudicated guilty of or adjudicated delinquent for committing any of the acts stemming from the arrest or alleged criminal activity to which the petition to seal pertains.
(e) Has never secured a prior sealing or expunction of a criminal history record under this section, former s. 893.14, former s. 901.33, or former s. 943.058.
(f) Is no longer under court supervision applicable to the disposition of the arrest or alleged criminal activity to which the petition to seal pertains.
(3) PROCESSING OF A PETITION OR ORDER TO SEAL.--
(a) In judicial proceedings under this section, a copy of the completed petition to seal shall be served upon the appropriate state attorney or the statewide prosecutor and upon the arresting agency; however, it is not necessary to make any agency other than the state a party. The appropriate state attorney or the statewide prosecutor and the arresting agency may respond to the court regarding the completed petition to seal.
(b) If relief is granted by the court, the clerk of the court shall certify copies of the order to the appropriate state attorney or the statewide prosecutor and to the arresting agency. The arresting agency is responsible for forwarding the order to any other agency to which the arresting agency disseminated the criminal history record information to which the order pertains. The department shall forward the order to seal to the Federal Bureau of Investigation. The clerk of the court shall certify a copy of the order to any other agency which the records of the court reflect has received the criminal history record from the court.
(c) For an order to seal entered by a court prior to July 1, 1992, the department shall notify the appropriate state attorney or statewide prosecutor of any order to seal which is contrary to law because the person who is the subject of the record has previously been convicted of a crime or comparable ordinance violation or has had a prior criminal history record sealed or expunged.
Upon receipt of such notice, the appropriate state attorney or statewide prosecutor shall take action, within 60 days, to correct the record and petition the court to void the order to seal. The department shall seal the record until such time as the order is voided by the court.
(d) On or after July 1, 1992, the department or any other criminal justice agency is not required to act on an order to seal entered by a court when such order does not comply with the requirements of this section. Upon receipt of such an order, the department must notify the issuing court, the appropriate state attorney or statewide prosecutor, the petitioner or the petitioner's attorney, and the arresting agency of the reason for noncompliance. The appropriate state attorney or statewide prosecutor shall take action within 60 days to correct the record and petition the court to void the order. No cause of action, including contempt of court, shall arise against any criminal justice agency for failure to comply with an order to seal when the petitioner for such order failed to obtain the certificate of eligibility as required by this section or when such order does not comply with the requirements of this section.
(e) An order sealing a criminal history record pursuant to this section does not require that such record be surrendered to the court, and such record shall continue to be maintained by the department and other criminal justice agencies.
(4) EFFECT OF CRIMINAL HISTORY RECORD SEALING.--A criminal history record of a minor or an adult which is ordered sealed by a court of competent jurisdiction pursuant to this section is confidential and exempt from the provisions of s. 119.07(1) and s. 24(a), Art. I of the State Constitution and is available only to the person who is the subject of the record, to the subject's attorney, to criminal justice agencies for their respective criminal justice purposes, which include conducting a criminal history background check for approval of firearms purchases or transfers as authorized by state or federal law, to judges in the state courts system for the purpose of assisting them in their case-related decisionmaking responsibilities, as set forth in s. 943.053(5), or to those entities set forth in subparagraphs (a)1., 4., 5., 6., and 8. for their respective licensing, access authorization, and employment purposes.
(a) The subject of a criminal history record sealed under this section or under other provisions of law, including former s. 893.14, former s. 901.33, and former s. 943.058, may lawfully deny or fail to acknowledge the arrests covered by the sealed record, except when the subject of the record:
1. Is a candidate for employment with a criminal justice agency;
2. Is a defendant in a criminal prosecution;
3. Concurrently or subsequently petitions for relief under this section or s. 943.0585;
4. Is a candidate for admission to The Florida Bar;
5. Is seeking to be employed or licensed by or to contract with the Department of Children and Family Services, the Agency for Health Care Administration, the Agency for Persons with Disabilities, or the Department of Juvenile Justice or to be employed or used by such contractor or licensee in a sensitive position having direct contact with children, the developmentally disabled, the aged, or the elderly as provided in s. 110.1127(3), s. 393.063, s. 394.4572(1), s. 397.451, s. 402.302(3), s. 402.313(3), s. 409.175(2)(i), s. 415.102(4), s. 415.103, chapter 916, s. 985.644, chapter 400, or chapter 429;
6. Is seeking to be employed or licensed by the Department of Education, any district school board, any university laboratory school, any charter school, any private or parochial school, or any local governmental entity that licenses child care facilities;
7. Is attempting to purchase a firearm from a licensed importer, licensed manufacturer, or licensed dealer and is subject to a criminal history background check under state or federal law; or
8. Is seeking authorization from a Florida seaport identified in s. 311.09 for employment within or access to one or more of such seaports pursuant to s. 311.12 or s. 311.125.
(b) Subject to the exceptions in paragraph (a), a person who has been granted a sealing under this section, former s. 893.14, former s. 901.33, or former s. 943.058 may not be held under any provision of law of this state to commit perjury or to be otherwise liable for giving a false statement by reason of such person's failure to recite or acknowledge a sealed criminal history record.
(c) Information relating to the existence of a sealed criminal record provided in accordance with the provisions of paragraph (a) is confidential and exempt from the provisions of s. 119.07(1) and s. 24(a), Art. I of the State Constitution, except that the department shall disclose the sealed criminal history record to the entities set forth in subparagraphs (a)1., 4., 5., 6., and 8. for their respective licensing, access authorization, and employment purposes. It is unlawful for any employee of an entity set forth in subparagraph (a)1., subparagraph (a)4., subparagraph (a)5., subparagraph (a)6., or subparagraph (a)8. to disclose information relating to the existence of a sealed criminal history record of a person seeking employment, access authorization, or licensure with such entity or contractor, except to the person to whom the criminal history record relates or to persons having direct responsibility for employment, access authorization, or licensure decisions. Any person who violates the provisions of this paragraph commits a misdemeanor of the first degree.
943.059 Court-ordered sealing of criminal history records.--The courts of this state shall continue to have jurisdiction over their own procedures, including the maintenance, sealing, and correction of judicial records containing criminal history information to the extent such procedures are not inconsistent with the conditions, responsibilities, and duties established by this section. Any court of competent jurisdiction may order a criminal justice agency to seal the criminal history record of a minor or an adult who complies with the requirements of this section. The court shall not order a criminal justice agency to seal a criminal history record until the person seeking to seal a criminal history record has applied for and received a certificate of eligibility for sealing pursuant to subsection (2). A criminal history record that relates to a violation of s. 393.135, s. 394.4593, s. 787.025, chapter 794, s. 796.03, s. 800.04, s. 810.14, s. 817.034, s. 825.1025, s. 827.071, chapter 839, s. 847.0133, s. 847.0135, s. 847.0145, s. 893.135, s. 916.1075, a violation enumerated in s. 907.041, or any violation specified as a predicate offense for registration as a sexual predator pursuant to s. 775.21, without regard to whether that offense alone is sufficient to require such registration, or for registration as a sexual offender pursuant to s. 943.0435, may not be sealed, without regard to whether adjudication was withheld, if the defendant was found guilty of or pled guilty or nolo contendere to the offense, or if the defendant, as a minor, was found to have committed or pled guilty or nolo contendere to committing the offense as a delinquent act. The court may only order sealing of a criminal history record pertaining to one arrest or one incident of alleged criminal activity, except as provided in this section. The court may, at its sole discretion, order the sealing of a criminal history record pertaining to more than one arrest if the additional arrests directly relate to the original arrest. If the court intends to order the sealing of records pertaining to such additional arrests, such intent must be specified in the order. A criminal justice agency may not seal any record pertaining to such additional arrests if the order to seal does not articulate the intention of the court to seal records pertaining to more than one arrest. This section does not prevent the court from ordering the sealing of only a portion of a criminal history record pertaining to one arrest or one incident of alleged criminal activity. Notwithstanding any law to the contrary, a criminal justice agency may comply with laws, court orders, and official requests of other jurisdictions relating to sealing, correction, or confidential handling of criminal history records or information derived therefrom. This section does not confer any right to the sealing of any criminal history record, and any request for sealing a criminal history record may be denied at the sole discretion of the court.
(1) PETITION TO SEAL A CRIMINAL HISTORY RECORD.--Each petition to a court to seal a criminal history record is complete only when accompanied by:
(a) A valid certificate of eligibility for sealing issued by the department pursuant to subsection (2).
(b) The petitioner's sworn statement attesting that the petitioner:
1. Has never, prior to the date on which the petition is filed, been adjudicated guilty of a criminal offense or comparable ordinance violation, or been adjudicated delinquent for committing any felony or a misdemeanor specified in s. 943.051(3)(b).
2. Has not been adjudicated guilty of or adjudicated delinquent for committing any of the acts stemming from the arrest or alleged criminal activity to which the petition to seal pertains.
3. Has never secured a prior sealing or expunction of a criminal history record under this section, former s. 893.14, former s. 901.33, former s. 943.058, or from any jurisdiction outside the state.
4. Is eligible for such a sealing to the best of his or her knowledge or belief and does not have any other petition to seal or any petition to expunge pending before any court. Any person who knowingly provides false information on such sworn statement to the court commits a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.
(2) CERTIFICATE OF ELIGIBILITY FOR SEALING.--Prior to petitioning the court to seal a criminal history record, a person seeking to seal a criminal history record shall apply to the department for a certificate of eligibility for sealing. The department shall, by rule adopted pursuant to chapter 120, establish procedures pertaining to the application for and issuance of certificates of eligibility for sealing. A certificate of eligibility for sealing is valid for 12 months after the date stamped on the certificate when issued by the department. After that time, the petitioner must reapply to the department for a new certificate of eligibility. Eligibility for a renewed certification of eligibility must be based on the status of the applicant and the law in effect at the time of the renewal application. The department shall issue a certificate of eligibility for sealing to a person who is the subject of a criminal history record provided that such person:
(a) Has submitted to the department a certified copy of the disposition of the charge to which the petition to seal pertains.
(b) Remits a $75 processing fee to the department for placement in the Department of Law Enforcement Operating Trust Fund, unless such fee is waived by the executive director.
(c) Has never, prior to the date on which the application for a certificate of eligibility is filed, been adjudicated guilty of a criminal offense or comparable ordinance violation, or been adjudicated delinquent for committing any felony or a misdemeanor specified in s. 943.051(3)(b).
(d) Has not been adjudicated guilty of or adjudicated delinquent for committing any of the acts stemming from the arrest or alleged criminal activity to which the petition to seal pertains.
(e) Has never secured a prior sealing or expunction of a criminal history record under this section, former s. 893.14, former s. 901.33, or former s. 943.058.
(f) Is no longer under court supervision applicable to the disposition of the arrest or alleged criminal activity to which the petition to seal pertains.
(3) PROCESSING OF A PETITION OR ORDER TO SEAL.--
(a) In judicial proceedings under this section, a copy of the completed petition to seal shall be served upon the appropriate state attorney or the statewide prosecutor and upon the arresting agency; however, it is not necessary to make any agency other than the state a party. The appropriate state attorney or the statewide prosecutor and the arresting agency may respond to the court regarding the completed petition to seal.
(b) If relief is granted by the court, the clerk of the court shall certify copies of the order to the appropriate state attorney or the statewide prosecutor and to the arresting agency. The arresting agency is responsible for forwarding the order to any other agency to which the arresting agency disseminated the criminal history record information to which the order pertains. The department shall forward the order to seal to the Federal Bureau of Investigation. The clerk of the court shall certify a copy of the order to any other agency which the records of the court reflect has received the criminal history record from the court.
(c) For an order to seal entered by a court prior to July 1, 1992, the department shall notify the appropriate state attorney or statewide prosecutor of any order to seal which is contrary to law because the person who is the subject of the record has previously been convicted of a crime or comparable ordinance violation or has had a prior criminal history record sealed or expunged.
Upon receipt of such notice, the appropriate state attorney or statewide prosecutor shall take action, within 60 days, to correct the record and petition the court to void the order to seal. The department shall seal the record until such time as the order is voided by the court.
(d) On or after July 1, 1992, the department or any other criminal justice agency is not required to act on an order to seal entered by a court when such order does not comply with the requirements of this section. Upon receipt of such an order, the department must notify the issuing court, the appropriate state attorney or statewide prosecutor, the petitioner or the petitioner's attorney, and the arresting agency of the reason for noncompliance. The appropriate state attorney or statewide prosecutor shall take action within 60 days to correct the record and petition the court to void the order. No cause of action, including contempt of court, shall arise against any criminal justice agency for failure to comply with an order to seal when the petitioner for such order failed to obtain the certificate of eligibility as required by this section or when such order does not comply with the requirements of this section.
(e) An order sealing a criminal history record pursuant to this section does not require that such record be surrendered to the court, and such record shall continue to be maintained by the department and other criminal justice agencies.
(4) EFFECT OF CRIMINAL HISTORY RECORD SEALING.--A criminal history record of a minor or an adult which is ordered sealed by a court of competent jurisdiction pursuant to this section is confidential and exempt from the provisions of s. 119.07(1) and s. 24(a), Art. I of the State Constitution and is available only to the person who is the subject of the record, to the subject's attorney, to criminal justice agencies for their respective criminal justice purposes, which include conducting a criminal history background check for approval of firearms purchases or transfers as authorized by state or federal law, to judges in the state courts system for the purpose of assisting them in their case-related decisionmaking responsibilities, as set forth in s. 943.053(5), or to those entities set forth in subparagraphs (a)1., 4., 5., 6., and 8. for their respective licensing, access authorization, and employment purposes.
(a) The subject of a criminal history record sealed under this section or under other provisions of law, including former s. 893.14, former s. 901.33, and former s. 943.058, may lawfully deny or fail to acknowledge the arrests covered by the sealed record, except when the subject of the record:
1. Is a candidate for employment with a criminal justice agency;
2. Is a defendant in a criminal prosecution;
3. Concurrently or subsequently petitions for relief under this section or s. 943.0585;
4. Is a candidate for admission to The Florida Bar;
5. Is seeking to be employed or licensed by or to contract with the Department of Children and Family Services, the Agency for Health Care Administration, the Agency for Persons with Disabilities, or the Department of Juvenile Justice or to be employed or used by such contractor or licensee in a sensitive position having direct contact with children, the developmentally disabled, the aged, or the elderly as provided in s. 110.1127(3), s. 393.063, s. 394.4572(1), s. 397.451, s. 402.302(3), s. 402.313(3), s. 409.175(2)(i), s. 415.102(4), s. 415.103, chapter 916, s. 985.644, chapter 400, or chapter 429;
6. Is seeking to be employed or licensed by the Department of Education, any district school board, any university laboratory school, any charter school, any private or parochial school, or any local governmental entity that licenses child care facilities;
7. Is attempting to purchase a firearm from a licensed importer, licensed manufacturer, or licensed dealer and is subject to a criminal history background check under state or federal law; or
8. Is seeking authorization from a Florida seaport identified in s. 311.09 for employment within or access to one or more of such seaports pursuant to s. 311.12 or s. 311.125.
(b) Subject to the exceptions in paragraph (a), a person who has been granted a sealing under this section, former s. 893.14, former s. 901.33, or former s. 943.058 may not be held under any provision of law of this state to commit perjury or to be otherwise liable for giving a false statement by reason of such person's failure to recite or acknowledge a sealed criminal history record.
(c) Information relating to the existence of a sealed criminal record provided in accordance with the provisions of paragraph (a) is confidential and exempt from the provisions of s. 119.07(1) and s. 24(a), Art. I of the State Constitution, except that the department shall disclose the sealed criminal history record to the entities set forth in subparagraphs (a)1., 4., 5., 6., and 8. for their respective licensing, access authorization, and employment purposes. It is unlawful for any employee of an entity set forth in subparagraph (a)1., subparagraph (a)4., subparagraph (a)5., subparagraph (a)6., or subparagraph (a)8. to disclose information relating to the existence of a sealed criminal history record of a person seeking employment, access authorization, or licensure with such entity or contractor, except to the person to whom the criminal history record relates or to persons having direct responsibility for employment, access authorization, or licensure decisions. Any person who violates the provisions of this paragraph commits a misdemeanor of the first degree.
Sunday, March 1, 2009
Federal Judge Pleads Guilty to Obstruction of Justice, Awaits Sentencing
In September 2008, U.S. District Judge Samuel B. Kent of the Southern District of Texas spoke loudly and forcefully when entering a not guilty plea to sex abuse charges. But last week in a Houston courtroom his tone was markedly different as a clearly beaten Kent whispered "guilty" to an obstruction-of-justice charge.
"I accept your guilty plea," U.S. District Judge Roger Vinson of the Northern District of Florida told Kent in court.
Kent's decision to plead guilty to the obstruction charge on Feb. 23 in exchange for the government dropping five sex abuse charges -- combined with his lawyer's announcement that Kent was "retiring" from the bench -- will cost Kent any chance at a standard judicial retirement salary and most likely his bar card and freedom, five experts say.
The guilty plea likely wouldn't have happened if Kent's former Galveston case manager, Cathy McBroom, hadn't decided to file a complaint against him with the 5th U.S. Circuit Court of Appeals two years ago. While Kent's judicial superiors couldn't take his job away from him, that's what McBroom's allegations -- which formed the basis for some of the criminal charges against him -- did on Feb. 23, the day jury selection would have begun in Kent's criminal trial.
"I'm very happy this part of the process is over. I feel extremely relieved, and I look forward to the sentencing," McBroom said outside the Bob Casey U.S. Court House in Houston on Feb. 23. Specifically, Kent pleaded guilty to making false statements to the Special Investigative Committee of the 5th Circuit, which was investigating McBroom's complaint.
"It's a fall that has been hard and fast," says Matt Orwig, a former U.S. Attorney for the Eastern District of Texas. Protecting his career and reputation may have been Kent's priority during his September 2008 not guilty plea, but that changed at some point during the ensuing months, Orwig says.
"The job became less important to him," say Orwig, now managing partner of the Dallas office of Sonnenschein Nath & Rosenthal. "And he quit caring about the cheese; he just wanted to get out of the trap" by minimizing any prison time.
Kent, who is the first federal judge in history to be indicted for alleged sexual crimes, will be sentenced on May 11 by Vinson, who is sitting by assignment. While the maximum sentence for obstruction of justice is 20 years, the 12-page plea agreement notes that the government agrees the maximum term of imprisonment that it may seek is three years and it may seek a lesser sentence.
Kent, whose wife was not in the courtroom on Feb. 23, did not comment after the hearing. Vinson made a point during the plea hearing to address Kent as Mr. Kent instead of Judge Kent.
"Everyone in the courtroom calls you Judge Kent. Today for purposes of this proceeding, it's going to be Mr. Kent," Vinson said.
Prosecutors Peter J. Ainsworth, John Pearson and AnnaLou Tirol of the U.S. Department of Justice's Public Integrity Section in Washington, D.C., did not comment after the hearing.
"Judge Kent believes that this compromise settlement is best for all involved, the complainants and their families, Judge Kent and his family, and the court and the judicial system," Dick DeGuerin, a partner in Houston's DeGuerin & Dickson who represents Kent, said after the plea hearing. "A trial would have been long, embarrassing, and difficult for all involved and this avoids that."
DeGuerin added that Kent had notified President Barack Obama and Edith Jones, chief judge of the 5th Circuit, that he is retiring from the bench effective immediately.
"He's been a walking basket case for a couple of years since this all came crashing in on him," DeGuerin says in an interview. "I'm not trying to milk any kind of sympathy here. The fact is his whole life has been irretrievably changed. And it's had an effect on him.
"It all started with his first wife dying. ... But he's had some very serious health problems that were greatly exacerbated by his legal problems, which I believe makes him qualified for a medical disability retirement," DeGuerin says.
For Kent to qualify for medical disability, Jones must certify his disability and it must also be approved by Obama. DeGuerin declines to comment about whether Kent will apply for disability.
"This is a matter between Judge Kent and the chief judge of the 5th Circuit and the president. And I have really said all I have to say about that, with this one addition: Whether you're a weekly wage earner or a yearly salary earner or self-employed, most people have retirement or pension plans that they work hard for years to build up. It's no different for a judge. He's worked as a judge for 18 years. His wife has no income. And for 18 years he worked hard at being a judge. His plea of guilty and misconduct really had nothing to do with that. And so, I'm simply trying to preserve what life he might have left once he serves his sentence whatever that is."
McBroom's lawyer, Rusty Hardin, was traveling on Feb. 26, the day Vinson lifted a gag order in the Kent case, and therefore was not available for comment.
Only Congress can impeach a federal judge and applying for disability opens the possibility that Congress will impeach Kent, say Arthur Hellman, a professor at the University of Pittsburgh School of Law who is an expert on federal judicial discipline. While Congress would have no reason to impeach a judge who has resigned from the bench because that judge has forfeited his title and salary, it would be different for a judge who retires and applies for judicial disability. A judge who is disabled retains his status as an Article III judge, his status as a civil officer of the United States and his salary, Hellman says. As a judge, Kent earns more than $160,000 a year.
And claiming a disability is the only way that Kent can continue to draw a judicial salary, Hellman says. During his plea hearing last week, Kent told Vinson that he had been treated by a psychologist.
In response to questions by Vinson, Kent said he was competent to enter a guilty plea even though he had taken prescription medications before coming to court on Feb. 23. DeGuerin read off a list of at least six drugs, and told Vinson that some were for depression, anxiety and diabetes.
"It's a Pyrrhic victory for him because it [disability] will immediately lead to impeachment," Hellman says. "What would be the good of giving him the benefit of a certificate of disability?"
That's exactly what one congressman intends to do. In a Thursday letter to Jones, U.S. Rep. James Sensenbrenner, R-Wisconsin, a member of the House Judiciary Committee, said he'll introduce articles of impeachment against Kent following his May 11 sentencing hearing if Kent "does not resign his bench."
"It is my understanding that Judge Kent will attempt to have a disability certified in order to receive pay and benefits as a senior judge," Sensenbrenner wrote. "If Judge Kent's claim is granted, it will likely result in attempts to re-open countless cases he has presided over during the past few years.
"Given the circumstances, it is outrageous that he is asking to retire under a disability exception so that he can continue to draw a paycheck for the rest of his life at taxpayer expense, including while he is incarcerated. I trust you will examine all of these issues carefully before considering Judge Kent's disability request." (See Sensenbrenner's letter to Jones.)
In an interview, Sensenbrenner warns that fighting impeachment is a long and expensive process. "He will be facing that expense, together with the embarrassment. I don't see how the House can fail to impeach him, given what he has pleaded to," Sensenbrenner says.
Hellman says Kent does not qualify for standard federal judicial retirement. Federal judges must adhere to what is known as "the rule of 80" before qualifying for retirement pay: They must be at least 65 years old and must have served at least 15 years on the bench. While Kent has been on the bench for 19 years, he is 59 years old.
"He cannot retire on salary because he doesn't have the age," says Hellman.
If Kent applies for disability, it would put Jones in an interesting position, Hellman says. "In a way I do feel for Chief Judge Jones because she's really caught in the middle here. If she believes he is genuinely disabled then he does have a claim," Hellman says.
"If she does grant it, Judge Kent finds himself as a target for the impeachment, but Judge Jones opens herself up to criticism as allowing her sympathy to overcome a crime that he has admitted to," Hellman says.
However because Kent pleaded guilty to a charge that he lied to a Special Investigatory Panel of the 5th Circuit, it may not be that tough of a choice for Jones, he adds. Kent was "accused of lying to her and her colleagues," Hellman says. "That's exactly it. And in some ways that may make it ironically easier."
Jones did not return a telephone call seeking comment.
Joe St. Amant, senior appellate conference attorney for the 5th Circuit, says Kent's status as a judge "right now is not certain."
Federal judges who "retire" generally continue to be judges and draw a salary or a pension, St. Amant says. Federal judges who "resign" do not continue to draw a salary or a pension, do not hold the title of judge and usually return to the practice of law, he says.
"I don't think you can make any assumptions at all about what the [5th Circuit Judicial] Council is going to do," St. Amant says.
CRIMINAL CHARGES
In September 2008, Kent pleaded not guilty to three charges -- two counts of abusive sexual contact and one count of attempted aggravated sexual abuse -- that stem from the complaint McBroom filed with the 5th Circuit.
On Jan. 6, a federal grand jury issued a superseding indictment in United States v. Samuel B. Kent that added three criminal charges against him -- one count of aggravated sexual abuse, one count of abusive sexual contact and one count of obstruction of justice. The alleged victim in the superseding indictment was only identified as "Person B," but on Feb. 23 her identity became known -- Donna Wilkerson, Kent's legal secretary in Galveston, stood outside the courthouse with her lawyer Terry W. Yates of Houston.
Wilkerson did not comment, but Yates told reporters after Kent's plea that his client is glad the process is over. "She will tell her story in due time," Yates said.
Yates says it would be "unjust" for Kent to go on disability and draw a judicial salary.
The obstruction charge in the superseding indictment alleged that Kent obstructed justice when he falsely stated to the Special Investigative Committee that "the extent of his unwanted sexual contact with Person B was one kiss and that when told by Person B his advances were unwelcome no further contact occurred, when in fact and as he well knew defendant Kent had engaged in repeated unwanted sexual assaults of Person B, in order to obstruct, influence and impede" the investigation. On Jan. 7, Kent pleaded not guilty to the three additional charges.
But in the Feb. 23 Factual Basis for the Plea, Kent stipulated that in August 2003 and in March 2007, he engaged in nonconsensual sexual contact with McBroom without her permission, and from 2004 through at least 2005, he engaged in nonconsensual sexual contact with Wilkerson without her permission. (See the Factual Basis for the Plea.)
The three additional charges in the superseding indictment prompted the Judicial Council of the 5th Circuit to reopen a disciplinary case against Kent on Jan. 9, according to an order from the Judicial Council of the 5th Circuit.
On Sept. 28, 2007, the Judicial Council of the 5th Circuit reprimanded Kent after a Special Investigator Committee looked into McBroom's "sexual harassment" complaint and other "instances of alleged inappropriate behavior toward other employees of the federal judicial system." The committee recommended that Kent be reprimanded "along with the accomplishment of other remedial courses of action," and by a majority vote the Judicial Council accepted the recommendations.
The council concluded the proceedings "because appropriate remedial action had been and will be taken, including but not limited to the judge's four-month leave of absence from the bench, reallocation of the Galveston/Houston docket and other measures," wrote Jones, who signed the order reprimanding Kent.
In October 2007, before Kent returned to the bench, an executive session of the judges of the U.S. District Court for the Southern District decided to transfer Kent's Galveston Division to the Houston Division. He only received civil suits when he returned to the bench in January 2008.
PRISON TIME?
Kent's felony guilty plea to the obstruction charge potentially cuts off another source of income for Kent -- practicing law. Lawyers and judges who are convicted of felonies that are considered "serious" crimes may be subject to compulsory discipline by the State Bar of Texas -- a streamlined process that bypasses the normal grievance panel system and allows the Bar to automatically suspend or disbar a lawyer.
"We are in the process of getting the papers related to Judge Kent's plea. And when we get the papers we will evaluate what to do next," says Maureen Ray, special administrative counsel for the State Bar's Office of Chief Disciplinary Counsel.
"I really can't comment as to what will occur to Judge Kent against his law license," Ray says.
Kent currently has an inactive law license, Ray says, but judges are allowed to sit on the bench with inactive bar cards. "Inactive status would not deter prosecution in an otherwise proper case," Ray says.
Because the State Bar considers obstruction of justice a serious crime, it may have little choice but to disbar Kent, says Robert Hinton of Dallas' Robert Hinton & Associates who defends lawyers in Bar disciplinary cases.
"That will pretty much tie the State Bar's hands," Hinton says. "I would believe he would be disbarred because that would be a serious offense and it would be an intentional offense."
Three criminal defense lawyers say that Kent most likely will receive at least some prison time.
"Lying to Congress, lying to a judge, lying to the 5th Circuit, lying to the FBI -- they're all serious obstruction charges," says Mike Uhl, a former federal prosecutor who is now a partner in Dallas' Fitzpatrick Hagood Smith & Uhl. "I'll be surprised if he gets straight probation."
A look at the federal sentencing guidelines seems to indicate why Kent took a plea deal: It was the only chance he had at avoiding a lengthy prison sentence, Orwig says. If a jury had convicted Kent of obstruction "then he's looking at 15 to 20 months" minimum in prison, Orwig says. If he pleads and accepts responsibility, he's eligible for a federal sentencing guidelines reduction, putting Kent in range for a "split sentence" that would allow him to serve half of his sentence in alternative incarceration such as home confinement or a halfway house.
But Marlo P. Cadeddu of Dallas' Law Office of Marlo P. Cadeddu, who is an expert on federal sentencing issues, says there's a chance Kent could avoid prison.
To do so, Kent would have to request that Vinson depart from the federal sentencing guidelines and give him an additional two-level sentence reduction beyond what is contemplated in the plea agreement. Kent could ask Vinson for a guideline departure on the ground his safety would be threatened in prison because he has sentenced thousands of criminals.
However Vinson may not want to give Kent a sentence he wouldn't give to someone who wasn't a federal judge who committed a similar crime.
"They don't want it to look like he's getting a benefit that a regular person wouldn't get," Cadeddu says.
CIVIL SUITS?
At the plea hearing, Vinson extended until sentencing in May a gag order he had imposed in the case sua sponte in September 2008 to shield the jury from potentially prejudicial statements. But on Feb. 26, Vinson dissolved it.
Vinson wrote that he lifted the order because "it now appears that some of those who are entitled to privacy under the evidentiary rules do not seek or desire continued privacy protection, and those who do desire continued privacy protection do not need or require any further protection by way of this court's order."
Vinson wrote that he is "reasonably confident" he has the ability to consider the evidence and issues dispassionately at sentencing, so any statements to the media will not affect Kent's sentencing.
In the order, Vinson wrote that he extended the gag order on Feb. 23, even though no jury would hear Kent's case, over concern that media reports "might lead to public dissemination and a discussion of matters that had been filed under seal to protect the privacy rights of a number of individuals."
Yates, who represents Wilkerson, says he's pleased Vinson lifted the gag order. He says Wilkerson is undecided if she will make public statements before Kent's sentencing.
"It was very traumatic for her and she wants to think about it," he says.
While federal judges have broad immunity against civil suits, they can be sued individually in state court for criminal conduct, according to a plaintiffs lawyer and three labor and employment lawyers in Texas. However, lawyers for both women say their clients aren't currently considering that.
Yates says his client "doesn't have any plans to file any civil action against Kent at this point."
Civil litigation against Kent hasn't been on McBroom's radar either, says Hardin of Houston's Rusty Hardin & Associates.
"I don't know that she is considering it," Hardin says. "We have deliberately never talked about it or considered it, because neither she nor I have wanted to undermine the legitimacy" of the criminal prosecution, he says.
In an order signed on Feb. 24, Chief Judge Hayden Head of the Southern District of Texas reassigned all 217 cases on Kent's docket -- all civil suits -- to the 11 Southern District judges who preside over the Houston and Galveston dockets.
Head declines to comment about Kent's plea. However, he notes that he and his fellow Southern District judges have not yet determined whether to staff the Galveston Division with a permanent judge. "The judicial services aren't going to be abandoned," Head says. "Whether there will be a sitting judge in Galveston will need to be decided."
Head says that he and the other Southern District judges will examine whether the Galveston Division workload justifies a permanent judge or whether the work will continue to be handled by judges in the Houston Division.
Kent still heard cases while he was under indictment, but he did not hear criminal cases or cases in which the U.S. government was a party.
Regardless of what happens to Kent in the future, his indictment and guilty plea have damaged the federal judiciary, says U.S. District Judge W. Royal Furgeson Jr. of San Antonio.
"I just think it's such a bad thing for all of us -- for every one of us. I'm sure Sam Kent wanted to have a good career and retire with honor," Furgeson says. "And I can't comment on anything he's done, but it's sadness where someone has done that and it really makes the situation one of dishonor.
"It's a tragedy all around and it's certainly a tragedy for the women who were placed in the position they were placed in. It's a situation where nobody wins. I think it's a terrible thing for the courts," Furgeson says. "There is nothing good that comes from this."
"I accept your guilty plea," U.S. District Judge Roger Vinson of the Northern District of Florida told Kent in court.
Kent's decision to plead guilty to the obstruction charge on Feb. 23 in exchange for the government dropping five sex abuse charges -- combined with his lawyer's announcement that Kent was "retiring" from the bench -- will cost Kent any chance at a standard judicial retirement salary and most likely his bar card and freedom, five experts say.
The guilty plea likely wouldn't have happened if Kent's former Galveston case manager, Cathy McBroom, hadn't decided to file a complaint against him with the 5th U.S. Circuit Court of Appeals two years ago. While Kent's judicial superiors couldn't take his job away from him, that's what McBroom's allegations -- which formed the basis for some of the criminal charges against him -- did on Feb. 23, the day jury selection would have begun in Kent's criminal trial.
"I'm very happy this part of the process is over. I feel extremely relieved, and I look forward to the sentencing," McBroom said outside the Bob Casey U.S. Court House in Houston on Feb. 23. Specifically, Kent pleaded guilty to making false statements to the Special Investigative Committee of the 5th Circuit, which was investigating McBroom's complaint.
"It's a fall that has been hard and fast," says Matt Orwig, a former U.S. Attorney for the Eastern District of Texas. Protecting his career and reputation may have been Kent's priority during his September 2008 not guilty plea, but that changed at some point during the ensuing months, Orwig says.
"The job became less important to him," say Orwig, now managing partner of the Dallas office of Sonnenschein Nath & Rosenthal. "And he quit caring about the cheese; he just wanted to get out of the trap" by minimizing any prison time.
Kent, who is the first federal judge in history to be indicted for alleged sexual crimes, will be sentenced on May 11 by Vinson, who is sitting by assignment. While the maximum sentence for obstruction of justice is 20 years, the 12-page plea agreement notes that the government agrees the maximum term of imprisonment that it may seek is three years and it may seek a lesser sentence.
Kent, whose wife was not in the courtroom on Feb. 23, did not comment after the hearing. Vinson made a point during the plea hearing to address Kent as Mr. Kent instead of Judge Kent.
"Everyone in the courtroom calls you Judge Kent. Today for purposes of this proceeding, it's going to be Mr. Kent," Vinson said.
Prosecutors Peter J. Ainsworth, John Pearson and AnnaLou Tirol of the U.S. Department of Justice's Public Integrity Section in Washington, D.C., did not comment after the hearing.
"Judge Kent believes that this compromise settlement is best for all involved, the complainants and their families, Judge Kent and his family, and the court and the judicial system," Dick DeGuerin, a partner in Houston's DeGuerin & Dickson who represents Kent, said after the plea hearing. "A trial would have been long, embarrassing, and difficult for all involved and this avoids that."
DeGuerin added that Kent had notified President Barack Obama and Edith Jones, chief judge of the 5th Circuit, that he is retiring from the bench effective immediately.
"He's been a walking basket case for a couple of years since this all came crashing in on him," DeGuerin says in an interview. "I'm not trying to milk any kind of sympathy here. The fact is his whole life has been irretrievably changed. And it's had an effect on him.
"It all started with his first wife dying. ... But he's had some very serious health problems that were greatly exacerbated by his legal problems, which I believe makes him qualified for a medical disability retirement," DeGuerin says.
For Kent to qualify for medical disability, Jones must certify his disability and it must also be approved by Obama. DeGuerin declines to comment about whether Kent will apply for disability.
"This is a matter between Judge Kent and the chief judge of the 5th Circuit and the president. And I have really said all I have to say about that, with this one addition: Whether you're a weekly wage earner or a yearly salary earner or self-employed, most people have retirement or pension plans that they work hard for years to build up. It's no different for a judge. He's worked as a judge for 18 years. His wife has no income. And for 18 years he worked hard at being a judge. His plea of guilty and misconduct really had nothing to do with that. And so, I'm simply trying to preserve what life he might have left once he serves his sentence whatever that is."
McBroom's lawyer, Rusty Hardin, was traveling on Feb. 26, the day Vinson lifted a gag order in the Kent case, and therefore was not available for comment.
Only Congress can impeach a federal judge and applying for disability opens the possibility that Congress will impeach Kent, say Arthur Hellman, a professor at the University of Pittsburgh School of Law who is an expert on federal judicial discipline. While Congress would have no reason to impeach a judge who has resigned from the bench because that judge has forfeited his title and salary, it would be different for a judge who retires and applies for judicial disability. A judge who is disabled retains his status as an Article III judge, his status as a civil officer of the United States and his salary, Hellman says. As a judge, Kent earns more than $160,000 a year.
And claiming a disability is the only way that Kent can continue to draw a judicial salary, Hellman says. During his plea hearing last week, Kent told Vinson that he had been treated by a psychologist.
In response to questions by Vinson, Kent said he was competent to enter a guilty plea even though he had taken prescription medications before coming to court on Feb. 23. DeGuerin read off a list of at least six drugs, and told Vinson that some were for depression, anxiety and diabetes.
"It's a Pyrrhic victory for him because it [disability] will immediately lead to impeachment," Hellman says. "What would be the good of giving him the benefit of a certificate of disability?"
That's exactly what one congressman intends to do. In a Thursday letter to Jones, U.S. Rep. James Sensenbrenner, R-Wisconsin, a member of the House Judiciary Committee, said he'll introduce articles of impeachment against Kent following his May 11 sentencing hearing if Kent "does not resign his bench."
"It is my understanding that Judge Kent will attempt to have a disability certified in order to receive pay and benefits as a senior judge," Sensenbrenner wrote. "If Judge Kent's claim is granted, it will likely result in attempts to re-open countless cases he has presided over during the past few years.
"Given the circumstances, it is outrageous that he is asking to retire under a disability exception so that he can continue to draw a paycheck for the rest of his life at taxpayer expense, including while he is incarcerated. I trust you will examine all of these issues carefully before considering Judge Kent's disability request." (See Sensenbrenner's letter to Jones.)
In an interview, Sensenbrenner warns that fighting impeachment is a long and expensive process. "He will be facing that expense, together with the embarrassment. I don't see how the House can fail to impeach him, given what he has pleaded to," Sensenbrenner says.
Hellman says Kent does not qualify for standard federal judicial retirement. Federal judges must adhere to what is known as "the rule of 80" before qualifying for retirement pay: They must be at least 65 years old and must have served at least 15 years on the bench. While Kent has been on the bench for 19 years, he is 59 years old.
"He cannot retire on salary because he doesn't have the age," says Hellman.
If Kent applies for disability, it would put Jones in an interesting position, Hellman says. "In a way I do feel for Chief Judge Jones because she's really caught in the middle here. If she believes he is genuinely disabled then he does have a claim," Hellman says.
"If she does grant it, Judge Kent finds himself as a target for the impeachment, but Judge Jones opens herself up to criticism as allowing her sympathy to overcome a crime that he has admitted to," Hellman says.
However because Kent pleaded guilty to a charge that he lied to a Special Investigatory Panel of the 5th Circuit, it may not be that tough of a choice for Jones, he adds. Kent was "accused of lying to her and her colleagues," Hellman says. "That's exactly it. And in some ways that may make it ironically easier."
Jones did not return a telephone call seeking comment.
Joe St. Amant, senior appellate conference attorney for the 5th Circuit, says Kent's status as a judge "right now is not certain."
Federal judges who "retire" generally continue to be judges and draw a salary or a pension, St. Amant says. Federal judges who "resign" do not continue to draw a salary or a pension, do not hold the title of judge and usually return to the practice of law, he says.
"I don't think you can make any assumptions at all about what the [5th Circuit Judicial] Council is going to do," St. Amant says.
CRIMINAL CHARGES
In September 2008, Kent pleaded not guilty to three charges -- two counts of abusive sexual contact and one count of attempted aggravated sexual abuse -- that stem from the complaint McBroom filed with the 5th Circuit.
On Jan. 6, a federal grand jury issued a superseding indictment in United States v. Samuel B. Kent that added three criminal charges against him -- one count of aggravated sexual abuse, one count of abusive sexual contact and one count of obstruction of justice. The alleged victim in the superseding indictment was only identified as "Person B," but on Feb. 23 her identity became known -- Donna Wilkerson, Kent's legal secretary in Galveston, stood outside the courthouse with her lawyer Terry W. Yates of Houston.
Wilkerson did not comment, but Yates told reporters after Kent's plea that his client is glad the process is over. "She will tell her story in due time," Yates said.
Yates says it would be "unjust" for Kent to go on disability and draw a judicial salary.
The obstruction charge in the superseding indictment alleged that Kent obstructed justice when he falsely stated to the Special Investigative Committee that "the extent of his unwanted sexual contact with Person B was one kiss and that when told by Person B his advances were unwelcome no further contact occurred, when in fact and as he well knew defendant Kent had engaged in repeated unwanted sexual assaults of Person B, in order to obstruct, influence and impede" the investigation. On Jan. 7, Kent pleaded not guilty to the three additional charges.
But in the Feb. 23 Factual Basis for the Plea, Kent stipulated that in August 2003 and in March 2007, he engaged in nonconsensual sexual contact with McBroom without her permission, and from 2004 through at least 2005, he engaged in nonconsensual sexual contact with Wilkerson without her permission. (See the Factual Basis for the Plea.)
The three additional charges in the superseding indictment prompted the Judicial Council of the 5th Circuit to reopen a disciplinary case against Kent on Jan. 9, according to an order from the Judicial Council of the 5th Circuit.
On Sept. 28, 2007, the Judicial Council of the 5th Circuit reprimanded Kent after a Special Investigator Committee looked into McBroom's "sexual harassment" complaint and other "instances of alleged inappropriate behavior toward other employees of the federal judicial system." The committee recommended that Kent be reprimanded "along with the accomplishment of other remedial courses of action," and by a majority vote the Judicial Council accepted the recommendations.
The council concluded the proceedings "because appropriate remedial action had been and will be taken, including but not limited to the judge's four-month leave of absence from the bench, reallocation of the Galveston/Houston docket and other measures," wrote Jones, who signed the order reprimanding Kent.
In October 2007, before Kent returned to the bench, an executive session of the judges of the U.S. District Court for the Southern District decided to transfer Kent's Galveston Division to the Houston Division. He only received civil suits when he returned to the bench in January 2008.
PRISON TIME?
Kent's felony guilty plea to the obstruction charge potentially cuts off another source of income for Kent -- practicing law. Lawyers and judges who are convicted of felonies that are considered "serious" crimes may be subject to compulsory discipline by the State Bar of Texas -- a streamlined process that bypasses the normal grievance panel system and allows the Bar to automatically suspend or disbar a lawyer.
"We are in the process of getting the papers related to Judge Kent's plea. And when we get the papers we will evaluate what to do next," says Maureen Ray, special administrative counsel for the State Bar's Office of Chief Disciplinary Counsel.
"I really can't comment as to what will occur to Judge Kent against his law license," Ray says.
Kent currently has an inactive law license, Ray says, but judges are allowed to sit on the bench with inactive bar cards. "Inactive status would not deter prosecution in an otherwise proper case," Ray says.
Because the State Bar considers obstruction of justice a serious crime, it may have little choice but to disbar Kent, says Robert Hinton of Dallas' Robert Hinton & Associates who defends lawyers in Bar disciplinary cases.
"That will pretty much tie the State Bar's hands," Hinton says. "I would believe he would be disbarred because that would be a serious offense and it would be an intentional offense."
Three criminal defense lawyers say that Kent most likely will receive at least some prison time.
"Lying to Congress, lying to a judge, lying to the 5th Circuit, lying to the FBI -- they're all serious obstruction charges," says Mike Uhl, a former federal prosecutor who is now a partner in Dallas' Fitzpatrick Hagood Smith & Uhl. "I'll be surprised if he gets straight probation."
A look at the federal sentencing guidelines seems to indicate why Kent took a plea deal: It was the only chance he had at avoiding a lengthy prison sentence, Orwig says. If a jury had convicted Kent of obstruction "then he's looking at 15 to 20 months" minimum in prison, Orwig says. If he pleads and accepts responsibility, he's eligible for a federal sentencing guidelines reduction, putting Kent in range for a "split sentence" that would allow him to serve half of his sentence in alternative incarceration such as home confinement or a halfway house.
But Marlo P. Cadeddu of Dallas' Law Office of Marlo P. Cadeddu, who is an expert on federal sentencing issues, says there's a chance Kent could avoid prison.
To do so, Kent would have to request that Vinson depart from the federal sentencing guidelines and give him an additional two-level sentence reduction beyond what is contemplated in the plea agreement. Kent could ask Vinson for a guideline departure on the ground his safety would be threatened in prison because he has sentenced thousands of criminals.
However Vinson may not want to give Kent a sentence he wouldn't give to someone who wasn't a federal judge who committed a similar crime.
"They don't want it to look like he's getting a benefit that a regular person wouldn't get," Cadeddu says.
CIVIL SUITS?
At the plea hearing, Vinson extended until sentencing in May a gag order he had imposed in the case sua sponte in September 2008 to shield the jury from potentially prejudicial statements. But on Feb. 26, Vinson dissolved it.
Vinson wrote that he lifted the order because "it now appears that some of those who are entitled to privacy under the evidentiary rules do not seek or desire continued privacy protection, and those who do desire continued privacy protection do not need or require any further protection by way of this court's order."
Vinson wrote that he is "reasonably confident" he has the ability to consider the evidence and issues dispassionately at sentencing, so any statements to the media will not affect Kent's sentencing.
In the order, Vinson wrote that he extended the gag order on Feb. 23, even though no jury would hear Kent's case, over concern that media reports "might lead to public dissemination and a discussion of matters that had been filed under seal to protect the privacy rights of a number of individuals."
Yates, who represents Wilkerson, says he's pleased Vinson lifted the gag order. He says Wilkerson is undecided if she will make public statements before Kent's sentencing.
"It was very traumatic for her and she wants to think about it," he says.
While federal judges have broad immunity against civil suits, they can be sued individually in state court for criminal conduct, according to a plaintiffs lawyer and three labor and employment lawyers in Texas. However, lawyers for both women say their clients aren't currently considering that.
Yates says his client "doesn't have any plans to file any civil action against Kent at this point."
Civil litigation against Kent hasn't been on McBroom's radar either, says Hardin of Houston's Rusty Hardin & Associates.
"I don't know that she is considering it," Hardin says. "We have deliberately never talked about it or considered it, because neither she nor I have wanted to undermine the legitimacy" of the criminal prosecution, he says.
In an order signed on Feb. 24, Chief Judge Hayden Head of the Southern District of Texas reassigned all 217 cases on Kent's docket -- all civil suits -- to the 11 Southern District judges who preside over the Houston and Galveston dockets.
Head declines to comment about Kent's plea. However, he notes that he and his fellow Southern District judges have not yet determined whether to staff the Galveston Division with a permanent judge. "The judicial services aren't going to be abandoned," Head says. "Whether there will be a sitting judge in Galveston will need to be decided."
Head says that he and the other Southern District judges will examine whether the Galveston Division workload justifies a permanent judge or whether the work will continue to be handled by judges in the Houston Division.
Kent still heard cases while he was under indictment, but he did not hear criminal cases or cases in which the U.S. government was a party.
Regardless of what happens to Kent in the future, his indictment and guilty plea have damaged the federal judiciary, says U.S. District Judge W. Royal Furgeson Jr. of San Antonio.
"I just think it's such a bad thing for all of us -- for every one of us. I'm sure Sam Kent wanted to have a good career and retire with honor," Furgeson says. "And I can't comment on anything he's done, but it's sadness where someone has done that and it really makes the situation one of dishonor.
"It's a tragedy all around and it's certainly a tragedy for the women who were placed in the position they were placed in. It's a situation where nobody wins. I think it's a terrible thing for the courts," Furgeson says. "There is nothing good that comes from this."
Detainee Issue Remains Unresolved Based upon Obama Administration's Actions
The Obama Administration asked the Supreme Court on Friday afternoon to end the case of an individual captured and held in the U.S. as a terrorism suspect, but did not tell the Court that it is abandoning the claim that it has power to do so. Instead, it argued that the planned release of Ali Saleh Kahlah Al-Marri from a military jail, for criminal prosecution in civilian court, means there is no longer any live controversy over his detention.
Simultaneously, the Solicitor General’s office asked the Court to approve Al-Marri’s release into civilian custody, even though it argued that the Court’s permission to do that was not necessary. These developments followed the public release Friday morning of a two-count criminal indictment of Al-Marri (see this post).
Indicating that it probably will act swiftly on the two requests, the Court asked Al-Marri’s lawyers to respond to both by the end of the day on Tuesday, with any government reply due on Wednesday. That could mean the Justices could respond as soon as it has those filings, or else consider it in their private Conference next Friday.
The motion to end the case is here, and the application to approve Al-Marri’s transfer (08A755) is here.
The Administration’s motion suggested two alternatives to the Court: dismiss the case for lack of jurisdiction because the specific legal dispute will end with Al-Marri’s release by the military — a move that apparently would leave the detention power unaltered because it would leave intact a Fourth Circuit Court decision upholding that authority — or vacate the Fourth Circuit’s decision, essentially taking it off the books, and end the case as “moot” or as a matter of “equitable discretion” (a phrase not further explained).
Al-Marri’s lawyers had noted earlier in the day that, despite Al-Marri’s indictment, the Administration had not yet renounced “the asserted authority to imprison legal residents and U.S. citizens without a charge.” In the government’s new filings in the Court, there was no indication that it would do so.
In response to the filings, Al-Marri’s lead lawyer, Jonathan Hafetz of the American Civil Liberties Union, commented: “The administration has failed to renounce the government’s power to designate legal residents and American citizens as enemy combatants and detain them indefinitely without charge. Its response underscores why the Supreme Court must make clear that the government does not have this power under our laws and Constitution.”
The new document made two points: first, it said that the government had made “a change in policy as to” Al-Marri, and thus there is only a “hypothetical contigency” that he might in the future be detained again by the military, and, second, it said that “different circumstances” would exist in the future and contended that “there is no guarantee that future detention would be implemented in the same manner or based on the same authority.”
The second point did seem to imply that detention policy could change at some point, and that appeared to be related to a statement later in the document saying that there can be no certainty that the issues over detention policy raised in Al-Marri’s case “will arise again in the future,” noting that the President “has ordered a comprehensive review of all military detention policies worldwide.”
The government cautioned the Court against deciding the presidential power questions, calling them “extremely sensitive constitutional issues.” It added: “Caution is particularly appropriate here because upon [Al-Marri’s] release and transfer, there will be no remaining individuals detained as enemy combatants on United States soil.” Thus, it went on, a ruling in Al-Marri’s case would not provide “guidance to any other” individuals in Al-Marri’s situation.
“Adjudication of the important and sensitive questions surrounding military detention should be addressed only if necessary, in the context of a live case involving concrete circumstances,” the motion concluded.
Simultaneously, the Solicitor General’s office asked the Court to approve Al-Marri’s release into civilian custody, even though it argued that the Court’s permission to do that was not necessary. These developments followed the public release Friday morning of a two-count criminal indictment of Al-Marri (see this post).
Indicating that it probably will act swiftly on the two requests, the Court asked Al-Marri’s lawyers to respond to both by the end of the day on Tuesday, with any government reply due on Wednesday. That could mean the Justices could respond as soon as it has those filings, or else consider it in their private Conference next Friday.
The motion to end the case is here, and the application to approve Al-Marri’s transfer (08A755) is here.
The Administration’s motion suggested two alternatives to the Court: dismiss the case for lack of jurisdiction because the specific legal dispute will end with Al-Marri’s release by the military — a move that apparently would leave the detention power unaltered because it would leave intact a Fourth Circuit Court decision upholding that authority — or vacate the Fourth Circuit’s decision, essentially taking it off the books, and end the case as “moot” or as a matter of “equitable discretion” (a phrase not further explained).
Al-Marri’s lawyers had noted earlier in the day that, despite Al-Marri’s indictment, the Administration had not yet renounced “the asserted authority to imprison legal residents and U.S. citizens without a charge.” In the government’s new filings in the Court, there was no indication that it would do so.
In response to the filings, Al-Marri’s lead lawyer, Jonathan Hafetz of the American Civil Liberties Union, commented: “The administration has failed to renounce the government’s power to designate legal residents and American citizens as enemy combatants and detain them indefinitely without charge. Its response underscores why the Supreme Court must make clear that the government does not have this power under our laws and Constitution.”
The new document made two points: first, it said that the government had made “a change in policy as to” Al-Marri, and thus there is only a “hypothetical contigency” that he might in the future be detained again by the military, and, second, it said that “different circumstances” would exist in the future and contended that “there is no guarantee that future detention would be implemented in the same manner or based on the same authority.”
The second point did seem to imply that detention policy could change at some point, and that appeared to be related to a statement later in the document saying that there can be no certainty that the issues over detention policy raised in Al-Marri’s case “will arise again in the future,” noting that the President “has ordered a comprehensive review of all military detention policies worldwide.”
The government cautioned the Court against deciding the presidential power questions, calling them “extremely sensitive constitutional issues.” It added: “Caution is particularly appropriate here because upon [Al-Marri’s] release and transfer, there will be no remaining individuals detained as enemy combatants on United States soil.” Thus, it went on, a ruling in Al-Marri’s case would not provide “guidance to any other” individuals in Al-Marri’s situation.
“Adjudication of the important and sensitive questions surrounding military detention should be addressed only if necessary, in the context of a live case involving concrete circumstances,” the motion concluded.
Subscribe to:
Posts (Atom)
