Archive for June, 2007


Los Angeles Department of Water and Power ordered to pay $224 million

The city of Los Angeles’ already shaky budget outlook took a potentially ominous turn Tuesday after a judge ruled that the Department of Water and Power intentionally overcharged other government agencies for electricity for nearly two decades, and owes them more than $200 million.

In a decision issued late Monday after a six-week trial, San Bernardino County Superior Court Judge John P. Wade held that the massive city utility must pay nearly $224 million in damages for its illegal conduct.

"The court finds that the DWP and the city have, for many years, since at least 1988, intentionally ignored the plain language" of the California Government Code and failed to determine how much it should legally charge, Wade wrote in his ruling.

The judge also criticized "the lack of a sense of responsibility to good government exhibited" by the city and the DWP.

Ron Deaton, the DWP’s general manager, said all the plaintiffs "have benefited from electricity rates that are far below those charged to other government entities by investor-owned utilities across the state. We believe these extremely favorable rates were fair and appropriate and in full compliance with the law."

City officials immediately said they would appeal.

The Los Angeles Unified School District would be the largest beneficiary of the ruling if it stands — garnering $94.7 million. But the decision potentially has serious implications for the city of Los Angeles, which for years has counted on revenues from its municipal utility to help balance its more than $6-billion annual budget.

The city, by law, must balance its budget each year — even though its expenses currently outpace revenues. One way of doing that over the years has been to take revenues collected by the DWP and transfer them to the city’s general fund.

About $175 million was transferred in the current fiscal year between water and power revenues, and the city expected to transfer $184.6 million in the budget adopted for the coming year.

But city revenues are also threatened on another front. The city is facing a lawsuit over its right to collect up to $270 million in cellphone taxes each year. A state appeals court ruled against the city in May.

The news could be bad for Mayor Antonio Villaraigosa as a sapped budget could harm his ability to accomplish goals — such as greatly expanding the Police Department — as he prepares for a 2009 reelection campaign and potential gubernatorial bid in 2010.

Villaraigosa could also find himself in an uncomfortable position with the new majority on the school board, which he helped elect. A successful appeal could save the city from a devastating financial blow, but would deny L.A. Unified a huge influx of cash. Since taking office, Villaraigosa has made reforming the district a cornerstone of his administration.

The prospect of extending the court fight drew the ire of veteran school board member David Tokofsky. "I hope City Hall will not send us into two to three years of appeals but instead will look at a child- and city-centered settlement immediately," Tokofsky said.

In addition to the $94.7 million earmarked for L.A. Unified, Los Angeles County would receive $45.2 million under Wade’s decision; the Los Angeles County Metropolitan Transportation Authority, $39.4 million; the Los Angeles Community College District, $7.8 million; UCLA, $5.3 million; and several state agencies, $31.3 million.

"DWP boosted its revenues at the expense of schools and county taxpayers for years," said Eric R. Havian, a San Francisco lawyer with the firm of Phillips & Cohen who was the lead attorney for the plaintiffs. "It’s unfortunate that the county, the school district and others had to sue the DWP to get the money they are owed."

The lawsuit asserted that the DWP was charging the plaintiffs up to 60% more than their legitimate share of capital costs. Havian said that evidence presented at the trial showed the DWP was aware it was acting unlawfully from studies it conducted. However, he said the school district and other government agencies did not know that they were being overcharged until a whistle-blower came forward in 2000.

Originally, the case was filed under seal. After an investigation, several governmental entities joined the lawsuit, and it was unsealed but drew little attention because the case was conducted in San Bernardino County. State law provides that when there is litigation between government agencies from the same municipality the case must be heard in another county.

Wade concluded that the plaintiffs were entitled to compensation because the DWP violated California statutes and the DWP had unjustly enriched itself.

Phil Spector muzzels famous rour of one of his defense lawyers

The acclaimed New York defense lawyer, Bruce Cutler, was expected to fight like an escaped animal from the Bronx Zoo to keep legendary record producer Phil Spector out of prison, as he had done three times for the late mob boss John Gotti.

Spector put Cutler on a short leash last month after Los Angeles County Superior Court Judge Larry Paul Fidler had scolded the lawyer for shouting at Dianne Ogden, who had tearfully described Spector pressing a pistol to her face and forcing her to spend the night with him in 1989.

Ogden’s account closely matched the murder scenario that prosecutors said occurred the night of Feb. 3, 2003, when actress Lana Clarkson was shot to death in Spector’s Alhambra mansion. The defense contends that Clarkson shot herself.

Ogden, her voice trembling, proclaimed that she was testifying only because she had been subpoenaed and that she wanted to "protect" Spector.

Cutler still treated Ogden as if she were a hostile witness.

"You formed an opinion!" he shouted at her. At that point, a seething Judge Fidler interjected. "You will not point and yell at witnesses in my courtroom — ever!" Fidler said.

Two weeks earlier, Cutler had given a blustery opening statement. The police and prosecutors had "murder on their mind" and had railroaded Spector, he bellowed.

Although Cutler’s courtroom performance offered plenty of action for the television cameras, people familiar with the defense team said Spector, his other lawyers and jury consultants thought Cutler flopped where it mattered — with the jury.

Cutler would not comment on why he was squelched, instead speaking of his need to get back in the game so that he could save Spector.

The trial has now hit the doldrums. The last few weeks have been heavily laden with clinical testimony and cross-examinations of a coroner and detectives.

Such testimony is unavoidable and important — but dull. Out-of-town reporters went home. And Paris Hilton’s court troubles quickly overshadowed the murder trial of one of the most influential pop music producers in history.

Without drama, Cutler thinks the Spector jury, like the general public, may pay less attention to the trial. "Trial work is theater. Of course it’s drama. It motivates, it inspires jurors to do what they think is right," he said.

Often portrayed as a rough-hewn street fighter, Cutler is in fact a cultured man. The Brooklyn background he plays up includes high school at Poly Prep, one of that borough’s most-esteemed academies. A graduate of the Tony Hamilton College in upstate New York, he sprinkles his conversation with literary and cinematic references.

His elocution mixes Brooklyn with Basil Rathbone, the Sherlock Holmes actor, as in his description of the current state of the defense: "DE-sultory! DE-sultory! Look it up! DE-sultory!"

Cutler has been with Spector the longest of his six attorneys. He sits next to Spector in court, and they heartily kiss each other on the cheek each morning.

4th Curcuit Court of Appeals Rules Accused Al Qaeda Operative Can’t Be Jailed Indefinitely

In a setback for the Bush administration, a federal appeals court ruled Monday that an alleged Al Qaeda operative arrested in the United States and detained in military custody for four years cannot be held as an enemy combatant.

The 2-1 ruling by the U.S. 4th Circuit Court of Appeals in Richmond, Va., ordered Ali Saleh Kahlah al-Marri released from a South Carolina military brig’s isolation cell, where he has been held since he was declared an enemy combatant. U.S. authorities have described al-Marri as an associate of Al Qaeda operations chief Khalid Shaikh Mohammed who came to the United States on Sept. 10, 2001, to help a "second wave" of sleeper agents bent on striking America.

Monday’s ruling held that neither the expanded post-Sept. 11 wartime powers nor the Military Commissions Act passed by Congress last year eliminated al-Marri’s constitutional rights to challenge the government’s allegations against him in a court of law.

"This is a landmark ruling for all individuals in this country, rejecting the administration’s unprecedented assertion that it can treat the entire world, including the United States, as a battlefield and jail people for life without charge and without trial simply because he labels them enemy combatants," said Jonathan L. Hafetz, litigation director of the Liberty & National Security Project at the New York University School of Law and al-Marri’s lead counsel.

Habeas corpus, which is used to challenge imprisonment and enforce due-process rights, "is what stands between the United States and a police state," Hafetz said.

However, the decision apparently applies only to al-Marri and stands a good chance of being overturned on appeal.

In her 77-page ruling for the majority, Judge Diana Gribbon Motz said al-Marri may be guilty of serious crimes, but sanctioning the indefinite detention of civilians would have "disastrous consequences for the Constitution — and the country."

"Put simply," she wrote, "the Constitution does not allow the military to seize civilians residing within the United States and detain them indefinitely without criminal process, and this is so even if they call them ‘enemy combatants.’ "

Motz said the government can transfer al-Marri to civilian authorities to face criminal charges, initiate deportation proceedings against him, hold him as a material witness in terrorism investigations or detain him for a limited time pursuant to the Patriot Act. "But military detention of al-Marri must cease," she wrote.

In a dissenting opinion, visiting Judge Henry E. Hudson said that "definitive precedent is admittedly sparse" but that the administration does have the right to hold al-Marri as an enemy combatant.

The Justice Department issued a statement saying that it was "disappointed with today’s divided decision" and that it would appeal the ruling to the entire appeals court.

Monday’s ruling does not have a direct effect on the 385 detainees at Guantanamo Bay, Cuba, because it addresses only those held within the United States.

Al-Marri, a citizen of Qatar and Saudi Arabia, is believed to be the only person on U.S. soil held as an enemy combatant. He was first detained in December 2001 at his home in Peoria, Ill., on a material witness warrant, after moving there with his wife and children to study for a master’s degree. He was later indicted in Illinois for credit-card fraud, making false statements to the FBI and other charges. He pleaded not guilty but was designated an enemy combatant before his trial began.

Al-Marri’s lawyers said their client insists he has had nothing to do with Al Qaeda.

Al-Marri, 41, was given the news of the ruling Monday by Andrew J. Savage III, the private attorney in Charleston, S.C., who has worked most closely with him and is handling the case without charge. "When I told him, he put the phone down, got down and prayed to Allah," Savage said. "Then he came back on the phone and expressed a lot of gratitude to everyone involved, the judge included."

Said Steven R. Shapiro, legal director of the American Civil Liberties Union: "It is difficult to imagine a more complete repudiation of the administration’s strategy of treating suspected terrorists as enemy soldiers who can be subject to indefinite detention by the military without charges or trial."

The Justice Department said Monday that "the president has made clear that he intends to use all available tools at his disposal to protect Americans from further Al Qaeda attack, including the capture and detention of Al Qaeda agents who enter our borders."

The department’s unsigned statement said that al-Marri trained at "Osama bin Laden’s terrorist training camp in Afghanistan" and that in the summer of 2001 he met with Mohammed, the self-described mastermind of the Sept. 11 attacks, to discuss how he could enter the United States and "explore methods of disrupting the U.S. financial system."

Some U.S. officials and legal experts suggested that a government appeal would have a good chance of succeeding, noting that Motz and Judge Roger Gregory were nominated by President Clinton, while the overall 4th Circuit is considered among the most conservative in the country. If that appeal fails, they said, the administration is likely to take the case to another court with a conservative majority: the U.S. Supreme Court.

IQ debate unsettled in death penalty cases

Five years after the Supreme Court declared in Atkins vs. Virginia that the death penalty was unconstitutional for those who are mentally retarded, Daryl Atkins still sits on death row.

In August, lawyers for the man who won the landmark ruling will try again to convince a jury here that he is indeed mentally retarded and therefore deserves a life term in prison, not execution.

Three times before, the county prosecutor has persuaded juries here to condemn Atkins to die, and she expects to win a fourth time as well. "Daryl was a slow reader. He was lazy, and he came to school stoned. But until he committed this murder, no one thought he was mentally retarded," said Eileen M. Addison, the prosecutor.

His case is not unique. Though the high court found that there was a "national consensus" against executing the mentally retarded, it left it to the states to decide which murderers would qualify for that exemption.

Determined prosecutors have had little trouble convincing juries that a convicted killer with a low IQ is not necessarily retarded. The definition of retardation is imprecise; test results can vary, giving prosecutors an opportunity to produce additional scores and other evidence to make the case that an inmate is actually smart enough to die.

The result is that the Supreme Court’s ruling has had less effect than many had foreseen.

When You’re Passed Over – Step Up

My father is a career coach and he recommends that you become more assertive about what you want when you have been passed over for a promotion. He suggests that accepting those words "Just keep up the good work, we need you" is not your best course of action.

"State your case to your boss and find out very clearly why you are not getting promoted and what you have to do to get that promotion," he said.

He suggests that you take notes when you talk with your boss or supervisor to show you are serious about implementing any suggestions, and he suggests that you tell your boss about your accomplishments and why you deserve a promotion.

This advice is sound and is similar to what I tell my personal injury clients; that when dealing with an adversary, it is critical to know exactly what you are entitled to. Otherwise, any offer will sound good.

Lethal Injections Upheld in Missouri

In the first review by a federal appeals court of a full-scale challenge to a state’s lethal-injection law, a court in St. Louis has found Missouri’s procedure constitutional, paving the way for the resumption of executions in the state.

The ruling becomes the guiding legal principle within the U.S. 8th Circuit Court of Appeals, which includes two other states using lethal injection — Arkansas and South Dakota.

Although the decision has no binding effect in other federal circuits, the decision could be cited in litigation in other parts of the country, including California. In San Jose, U.S. District Judge Jeremy Fogel ruled in December that California’s lethal-injection procedure, as administered, did not pass constitutional muster. The state revised its procedure, which Fogel is reviewing.

The 3-0 ruling by the 8th Circuit reversed a decision last year by a federal judge in Kansas City who said the state’s execution methods created an unnecessary risk that an inmate could be subjected to "unconstitutional pain and suffering when the lethal injection drugs are administered."

The 8th Circuit panel said it found "no wanton infliction of cruel and unusual punishment."

It’s Srung Time in California for Hilton

Sheriff Lee Baca’s decision to let Paris Hilton out of jail after she served only three days of a planned 23-day stay sparked outrage Thursday, not with just the public who many believe she received special treatment, but with the judge who sentenced her.  The release prompted him to call an emergency court hearing today that could send the hotel heiress back behind bars.

Perhaps we have a conflict between the court and the sheriff – and while the court has a great deal of power, it appears that the sheriff has most of the law on his side – he runs the jail and he sets the rules. 

If the court orders her back to jail, you can bet your last dollar that his decision will be instantly appealed and Paris will return home for more cupcakes.  We are a land of laws and not a land of public opinion.

There should be no rush to judgment, however, for the world, and the talking heads on TV, do not know all the facts and calling for the resignation of the sheriff (as some have done) is likely very premature. Regardless of the outcome of today’s court hearing – the damage has been done to the public’s perception that there are special rules for the rich and the white – as if that perception needed any reinforcement.

Infuriated prosecutors asserted Thursday that Hilton had received special treatment from the Sheriff’s Department, which they accused of contempt of court. The judge who sentenced Hilton ordered her back into court to consider whether the department acted improperly by allowing her to serve the rest of her sentence at home while wearing an ankle monitor.

Hilton’s brief jail stay came after both the judge and sheriff had said she would serve more substantial jail time.

Superior Court Judge Michael T. Sauer sentenced Hilton to 45 days in jail after the 26-year-old multimillionaire repeatedly violated her probation on alcohol-related reckless driving charges by driving on a suspended license. Sauer had admonished Hilton for her actions and said she must serve the full term in the county jail.

Baca, who runs the jail system, had said he was fully prepared to enforce what legal experts described as a tough sentence. He declared that Hilton would be treated like any other inmate, warned her to take her incarceration seriously and said with standard credit for good behavior she would spend 23 days in jail, not a moment less.

Instead, sheriff’s officials announced Thursday that an undisclosed medical condition led them to reassign Hilton to electronic monitoring, despite Sauer’s specifically barring that option. Baca strongly denied that Hilton had received any preferential treatment and said she had served about the same time in jail as others sentenced for similar crimes.

To the displeasure of prosecutors and the judge, Hilton returned to her Hollywood Hills home, where she was met by family and an assortment of gourmet cupcakes.

A spokesman for Sauer said the judge disagreed with letting Hilton out and told sheriff’s officials that her release "did not concur" with his sentence.

Two members of the Los Angeles County Board of Supervisors, which oversees funding for the Sheriff’s Department, called for a full report within the week from Baca on what led to Hilton’s release. County officials said they received hundreds of angry phone calls and e-mails from constituents.

A Simple Cure for Road Rage: Close the Road

It started last year when Caltrans began widening California 138, a main east-west route in Southern California’s fast-growing high desert region.

Motorists angry at construction delays threatened road workers and damaged equipment. Also, flagmen have been attacked in what officials describe as bizarre incidents of road rage. Two workers were hit by cars and a third was shot with a BB gun.

Now in an unprecedented response to ill will, Caltrans has announced it will close a portion of the highway beginning Monday to complete the project.

California 138 connects two of Southern California’s fastest-growing areas — the Antelope Valley communities of Palmdale and Lancaster and Inland Empire’s high desert region. But the rural highway has become a major commuter route, and that has caused problems.

The highway project is a modest attempt to improve safety on the mostly two-lane route long known by locals as "Blood Alley" and "California Deathway" because of the number of accidents.

For years, officials have talked about turning it into a full-fledged freeway, but the funding has never been available. A slew of new subdivisions in north Los Angeles County and the Inland Empire is prompting the latest push for a better road, perhaps a toll road connecting Palmdale and Victorville.

Credit ‘Repair’ Could Leave You in a Fix

We’ll repair your credit, guaranteed! Correct negative information on your credit reports! Sounds great – but it may be a scam.

Credit repair companies, which are rampant on the Internet, appear to be providing a wonderful service. Just imagine — negative items on your credit report could be wiped out with only a few easy payments.

Keep imagining.

Websites that claim to erase bad credit usually are operating outside the law and seldom get tangible results, according to the Federal Trade Commission and other agencies.

Even credit repair companies that stay away from some of the most bogus of claims — including promises that they can wipe out legitimate reports of late payments — break the law as soon as they charge upfront "registration" or "setup" fees.

In all, the FTC has gone after about 70 credit repair companies. Last year it went after 20 of them at once in a crackdown called Project Credit Despair.

Still, that’s only a small number of the companies that offer the service, according to the FTC.

Credit repair companies should not be confused with those that do debt counseling, which is a different business (although the FTC and other agencies have gone after some of them too).

The first thing a credit repair company usually does is obtain reports for the client from the major credit reporting bureaus. And for this, they sometimes charge a fee.

If that’s all they do, no law has been broken, although they often avoid — at least on their websites — letting clients know that the reports can be easily obtained for free by anyone once a year.

But if the next step for "repair" work involves a payment, then the company is violating federal  laws.

You can’t be  charged a fee until the services promised have been performed.

But you wouldn’t know that by looking at credit repair websites. Almost all of them charge an initial fee that can be as low as $20 and as high as $100. Additional fees usually follow and can amount to several hundred dollars over time.

Then there’s the question of what these companies do for their fees. If a credit repair company’s main role is to challenge items on a report that might well be inaccurate, then its service is hardly worth paying for.

Forensic Scientist Henry Lee’s Credibility is challenged

In the all-out warfare of celebrity trials, forensic scientist Henry C. Lee is the nuclear weapon. Prosecutors and defense lawyers scramble to hire him in the hours after a high-profile arrest — not only to bolster their cases but also to keep him from joining the other side.

Lee has worked on the biggest celebrity cases of the last two decades: O.J. Simpson, William Kennedy Smith, Kobe Bryant, JonBenet Ramsey, Scott Peterson, Chandra Levy, Michael Skakel. His work has brought him his own fame. He has had his own cable TV show, courtrooms fill with spectators when he shows up for a trial, and he is hounded for autographs in public.

So when Lana Clarkson, a 40-year-old actress, was found shot to death Feb. 3, 2003, in music producer Phil Spector’s home, attorney Robert Shapiro immediately flew in Lee from his Connecticut home. The lawyer got Lee into Spector’s Alhambra mansion by the next evening to begin the scientific hunt for evidence to prove Spector innocent — or at least produce doubt of his guilt in jurors’ minds.

But in a startling blow to Lee’s illustrious career, Los Angeles County Superior Court Judge Larry Paul Fidler said he already has reasonable doubt — about Lee’s credibility.

Fidler ruled last month that prosecutors could present testimony that Lee took evidence from the crime scene and kept it from prosecutors.

The judge said testimony about what was taken was inconclusive, but prosecutors claimed that it was a piece of Clarkson’s acrylic nail that was blown off when she held her hand in front of her face to try to defend herself against the bullet that killed her. That could show that, contrary to the contention of Spector’s lawyers, she did not kill herself.

Lee, when vigorously denying that he improperly took anything from the crime scene, captured the magnitude of the allegation. "I think my reputation [is] severely damaged," he said.

Fidler’s ruling could weaken Lee’s testimony, although defense attorneys say they plan to stick with him. An expert on analyzing the patterns of bloodstains, Lee is expected to testify that the size and number of blood spots on Spector’s jacket show he was standing too far from Clarkson to have shot her.

The judge’s decision could also damage Lee beyond the Spector case. Future courtroom opponents might cite the ruling to chip at Lee’s stature; prosecutors and defense attorneys might even decide not to hire him at all.

Lee has not spoken to reporters about Fidler’s ruling. His office said he is out of the country on a lecture tour until Monday, and his assistant at the Connecticut state forensics lab declined to forward phone or e-mail messages to him or to say whether he checks messages when traveling.

 

Ted Bills