Louisiana Voice

I don’t know about you, but while so many others are upset with the outcomes of elections of president, members of congress and governors, I am deeply concerned at the methods of election and appointment of judges, from family court all the way to federal district judges and members of the U.S. Supreme Court.

Think for a moment about the criteria to which we hold judicial candidates just in Louisiana. Whoever makes the strongest, most credible claim of being tough on crime, who makes the loudest promise to hand down the harshest penalties to offenders and who, not incidentally, reaps the most campaign contributions from attorneys generally comes out on top in elections. Of course, the current swing of the political pendulum also dictates that in most cases, the candidate with an “R” behind his name has a decided advantage.

Simply stated, that’s no way to run a railroad. A judge should be chosen from among those with the most integrity and the deepest understanding of the law. Period. A candidate’s political philosophy should never be a consideration when making such a critical decision.

Let’s look at minimum requirements to seek a judgeship in Louisiana:

ASSOCIATE JUSTICE, SUPREME COURT JUDGE, COURT OF APPEAL JUDGE, DISTRICT COURT JUDGE, FAMILY COURT JUDGE, JUVENILE COURT JUDGE, PARISH COURT: The candidate shall have been admitted to the practice of law in Louisiana for at least 10 years for supreme court or court of appeals candidates and 8 years for district court, family court, parish court, or court having solely juvenile jurisdiction candidates, prior to the candidate’s election.  The candidate shall have been domiciled in the respective district, circuit, or parish for 1 year preceding the candidate’s election.  Elected or appointed incumbent judges are not eligible to run for any elective office other than their own or another judicial office.  In order to run for another office, they must resign from their office at least 24 hours prior to the date of qualifying for such other office.  A judge appointed to fill a vacancy shall be ineligible as a candidate at the election to fill the vacancy.  Candidate must be younger than the mandatory retirement age of 70, and a judge who reaches age 70 while serving a term of office will be allowed to complete the term (emphasis added).

You’d think the requirements would be a little tougher for consideration for appointment as a federal judge (which, by the way, are lifetime appointments). But you’d be wrong:

According to the U.S. Constitution, there are no specific minimum qualifications required to become a federal judge; the Constitution does not list any formal requirements for this position, meaning there is no set minimum age, years of experience, or even a requirement to be a lawyer.

But wait, there’s more. What about U.S. Supreme Court justices, the absolute highest legal position in U.S. government?

Well, the minimum requirements for that are a bit hazy, as well.

Just as with federal judges, there is no set minimum age, years of experience, or even a requirement to be a lawyer in order to qualify as a justice on the U.S. Supreme Court.

I have my own suggestions, suggestions that I readily admit will never be adopted, partly because some of them would require amendments to the Louisiana and U.S. constitutions. But let’s look at some basic suggestions that should not be controversial provided we have candidates who are serious and sincere about the law.

First of all, let’s adopt a rule that all candidates for judge in Louisiana – no matter the level, family court all the way up to state appellate and supreme courts – must participate in an open forum to respond to questions about their actual knowledge of the law and that they must score at least an 85 percent accuracy rate on their answers or drop out of the race.

Some of the questions they might be asked:

• What is the Daubert standard?
• Define a motion in limine.
• Explain how an Alternative Dispute Resolution works.
• What is a Brady motion?
• Define the terms de facto and de novo.
• Same question for en banc and ex parte
• Give us your definition of the terms in forma pauperis, inculpatory and exculpatory evidence.
• What’s the difference between an injunction and a temporary restraining order?
• Two more definitions: per curiam and pro per.
• What’s the difference between subpoena and subpoena duces tecum?
• Explain the terms voir dire and writ of certiorari.

These are just a few that popped into my mind. There are other questions, many others and anyone seeking a judgeship should be familiar with the terms. (And before you ask, yes, I do know the answers to almost all of the above questions, but the big difference is I’m not running for a judgeship.)

Piece of cake for an attorney, you say? Don’t be too sure of that.

There are times few and far, far between that I agree with U.S. Sen. John Neely Kennedy on anything since he switched from being an open-minded Democrat to a tunnel-vision, boot-licking disciple of Herr Trump. But on two separate occasions he literally destroyed the chances of two of Trump’s nominees to federal judgeships.

One was the 2017 nomination of MATTHEW SPENCER PETERSON with the most basic questions about his legal experience.

The other was the equally withering questioning of President Biden’s nominee, KATO CREWS, who had served more than four years as a magistrate judge, about the Brady motion.

Any first-year law student should have handled that question with ease but Crews thought it involved “something regarding the Second Amendment.”

Now, about those constitutional amendments:

In all judicial elections (this is for Louisiana because federal judges are appointed, not elected), no campaign contribution may come from any attorney or law firm. Period. All contributions must come from those unaffiliated with the legal profession. (Yeah, I know, this is Louisiana and they’re gonna find some way around the law, but hey, it’s a start).

For all federal judicial and U.S. Supreme Court appointments, candidates must be experienced, licensed attorneys with a minimum of 10 years’ practice. That’s the least we can do.

So far, in the history of this nation, I don’t think any non-lawyer has ever been appointed as a federal judge and I Know that no non-lawyers have ever been appointed to the Supreme Court. But don’t you think it’s past time we closed that loophole – just in case?

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LSU law professor Nicholas Bryner recently told his class that if any of his students voted for Donald Trump because they might not like him personally, but favored his policies, then “it’s on you to prove that by the way you conduct yourselves and by the way that you treat other people around you.”

His remarks, made over 1 ½-minutes, appeared to me to be a simple request that those students practice the Golden Rule.

But don’t take my word for it. Here is the complete video of his REMARKS.

But that’s not the way a guy named Jeff Landry saw or heard it. In a message sent out over X, Landry took it upon himself to pick a fight with Bryner by accusing him of defying “the 76 million Americans who voted for (Trump) – to silence and belittle those in his class who voted for our next president.

Landry neglected to mention that more than 75 million voted for someone other than Trump, so despite the lopsided electoral vote total, the popular vote wasn’t exactly a ringing mandate for Herr Trump any more than Landry’s 2023 election was a mandate, considering he was elected by only about 18 percent of the number of registered voters in Louisiana as the 36 percent turnout was the lowest in Louisiana in two decades.

And of course, there is the student to took the video of Bryner delivering his call for common sense and decent behavior on the day following the Nov. 5 election and forwarding the video to Landry.

There’s nothing wrong with that. This day and age, a person would have to be totally oblivious not to realize that anything he says or does is likely to be recorded.

In fact, I would suggest that that is a great idea for all vehicles to be equipped with video/audio cameras for all encounters with police – especially those police who would beat a guy to death and then tell his family that he died in an auto accident.

So, no, I don’t have a problem with the student who recorded Bryner’s ever-so-brief plea for common decency. In fact, I would argue that the video is Bryner’s best defense against any disciplinary action Landry might try to bring down on him through LSU’s spineless President William Tate.

But Landry’s kneejerk reaction? That’s quite another story. It should be obvious by now, what with his demand that athletes be present for the playing/singing of the National Anthem and that LSU parade out its tiger – any tiger actually, it turns out – for sporting events, that Landry possesses some sort of sick thirst for control every facet of life on Louisiana’s college campuses.

I fail to understand what makes Landry such an authority on academia, given that he’s nothing more than a two-bit hack who suffers from the little-man syndrome that demands that he be given attention on a regular basis lest he feel neglected and unimportant.

I do know that for him to use his office as a bully pulpit (with the emphasis on BULLY) to intimidate or threaten anyone he perceives to be critical of him or to disagree with him as he did with BOB MANN, is not only petulant and petty, but dangerous.

Mann, to his credit, was quick to POINT OUT the weaknesses in Landry’s blatant hypocrisy in claiming on one hand to support free speech even as he attacks Bryner’s plea for common decency.

It’s too bad that Louisiana’s demagogue-in-chief just doesn’t get it.

Maybe instead of posting the Ten Commandments in school classrooms, he should post the Golden Rule in his own office.

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It’s always amazing to watch gymnasts and contortionists.

The control that gymnasts have over their bodies in the vault and floor exercises is absolutely jaw-dropping.

But equally mystifying is how some people can contort their principles and morals to accommodate the most outrageous positions and philosophies.

That is, of course, assuming they have any principles and morals to begin with.

Such questions certainly must now hang like the sword of Damocles over the heads of U.S. Sen. John Neely Kennedy and U.S. Speaker of the House Mike Johnson.

Kennedy, of course, completely bastardized any shred of dignity that remained in his soul back in 2016 when he proclaimed that he’d “RATHER DRINK WEEDKILLER” than betray one Donald Trump on who’s coattails he was running (for the third time after losing the first two) for the Senate.

At least he’s held to that dogma, especially with his latest appearance on Fox News where he completely buried his head in Trump’s flabby, pasty-white derriere by declaring, “We’re going to get President Trump’s nominees confirmed…I don’t take that as being a problem.”

Really? Well, then, Mr. Foghorn Leghorn, please tell us just what it would take for you to perceive something as being a problem.

Let me repeat that. One-time liberal Democrat now a John Birchite Republican U.S. Sen. John Neely Kennedy, a graduate of Vanderbilt University and a Rhodes Scholar actually said, “We’re going to get President Trump’s nominees confirmed…I don’t take that as being a problem.”

Let that soak in, folks.

• Kennedy apparently is just fine with having the likes of Matt Gaetz, who resigned just before a House Ethics Committee report on his alleged pedophilic activities was to be released (more on that in a bit), for nomination to the nation’s highest legal office, U.S. Attorney General, who will preside of the U.S. Department of Justice.
• Kennedy is okay with a secretary of defense, Pete Hegseth who has sexual assault charges hanging over his head as well.
• He’s hunky-dory with a health secretary (Robert F. Kennedy, Jr.) who is a complete, worm-brained nut case and a conspiracy theorist nonpareil.
• Somehow, he must be satisfied with Tulsi Gabbard, said to be a national security risk, as, of all things, director of national intelligence.
• And he apparently has no problem with puppy-killing Kristi Noem, aka “Airhead,” as secretary of the Department of Homeland Security.

Of course, once vetted, each of these nominees could be proven to be squeaky clean. It’s not at all likely, but it’s at least remotely possible.

But to give the blanket approval at this stage as Kennedy has obviously done amounts to nothing but a display of Kennedy’s continued unquestioning fealty to his lord and master – while managing to completely ignore any pretense of independence or any attempt to invoke the checks and balances system under which our government was established in the first place.

Now let us turn our attention to that other Louisiana demagogue – Mike Johnson.

As recently as Wednesday, Johnson told reporters that as speaker he could not be involved in deciding whether or not to release that ethics report on Gaetz.

But then, just as he did when the House was on the verge of approving a bipartisan border bill a couple of months ago, he talked to Donald Trump.

And things suddenly changed.

Wow, did they change.

Just as that border bill suddenly evaporated, so now is Johnson saying that he plans to urge House Ethics Committee Chairman Michael Guest NOT TO PROVIDE the Gaetz report to the Senate Judiciary Committee.

Instead of a porn-monitoring app on his cell phone, perhaps Johnson should consider a Trump guidance-app in order to avoid future embarrassing leadership U-turns.

“The rules of the House have always been that a former member (remember, Gaetz resigned just before the report was due out) is beyond the jurisdiction of the Ethics Committee,” Johnson said just two days later, on Friday.

He offered that attitude adjustment immediately after meeting with Trump at Mar-a-Lago. What a coincidence!

Releasing the report, Johnson said, would set a “terrible precedent” and “open up a Pandora’s box.”

Not so, said a spokesman for Democratic Sen. Dick Durbin of Illinois, chairman of the Senate Judiciary Committee. The spokesperson said there was “longstanding precedent” in both the House and Senate for releasing ethics investigations after a subject member’s resignation.

So, there you have it folks. The continued practice of the usual high standards of Louisiana politicians when it comes to supporting proposals that conflict with everything sane and logical.

It’s enough to make the most optimistic among us cynical.

But it’s just another day in the life of the political contortionist.

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When Hurricane Katrina made landfall on August 29, 2005, it resulted in the deaths of nearly 1,400 people, destroyed property and upended the lives of tens of thousands of others, none more than one Ashton R. O’Dwyer, Jr.

The radical changes to O’Dwyer’s life didn’t actually begin until three weeks later, at five minutes after midnight on September 20, but the change – and his fall from grace – was fast and furious. Literally.

What he described, and continues to describe, as gross negligence by the U.S. Army Corps of Engineers and the State of Louisiana “through various agencies, instrumentalities and political subdivisions,” caused 80 percent of the homes and businesses in New Orleans to flood.

AROD, as he refers to himself, at the time was a respected partner in the New Orleans law firm of Lemle & Kelleher. He specialized in admiralty and maritime law. He decided to remain on his property “in order to protect what belonged to him,” according to court records, because his property, at 6034 St. Charles Ave. in the uptown section of New Orleans, was “high and dry” and undamaged by the storm. Moreover, he had a generator “and sufficient food and water to provision a small army.”

Because St. Charles Avenue did not flood and since it provided access to both U.S. 90 and I-10, and because his home was located on one of the main thoroughfares in and out of New Orleans, journalists traveled the route extensively during their coverage of the carnage. They would see O’Dwyer clearing debris from his and neighbors’ yards and the neutral ground along St. Charles in front of his house and stop to interview him.

In a tongue-in-cheek gesture, he devised a spoof based on the Peter Sellers movie The Mouse that Roared and “seceded” from the U.S., the State of Louisiana and the City of New Orleans and declared his property as “sovereign territory,” more particularly the “Duchy of Kilnamanagh,” (which, in fact, is the geographic area within County Tipperary in the Province of Munster “on the Emerald Isle whence the O’Dwyer Sept sprung”).

O’Dwyer’s fate was sealed when, on September 19, he drove to Baton Rouge where the Eastern District Federal Cout was temporarily headquartered and filed the very first “Victims of Katrina” lawsuit against the United States of America, the State of Louisiana, the governor, the City of New Orleans, the New Orleans mayor, the Orleans Levee Board, the Sewerage & Water Board and others.

Twelve hours later, at five minutes after midnight, the fecal matter hit the proverbial oscillating air circulation device. As he sat at a table in his driveway watching the news on television, a “goon squad” of Louisiana State Troopers DESCENDED ONTO HIS PROPERTY, “abducted him and transported him to a temporary jail facility that became known as Camp Amtrak,” he wrote in documents filed with the U.S. Fifth Circuit Court of Appeals, a court he has come to refer to as the “Fifth Circus.”

At Camp Amtrak, he was “brutalized and tortured” by Louisiana Department of Public Safety and Corrections prison guards from the Louisiana State Penitentiary at Angola who kept him in custody for the next 16 ½ hours where he was pepper-sprayed more than three dozen times and shot 12 times in both lower extremities at point-blank range (from two feet away) with a 12-gauge shotgun loaded with beanbag rounds.

Was the ABDUCTION of O’Dwyer from his property (without a warrant, no less) and his subsequent incarceration and physical abuse for 16 ½ hours somehow connected to that lawsuit he had filed earlier in Baton Rouge?

For that answer, we’ll let you connect the dots.

Documents filed by O’Dwyer in federal court said his life began to unravel when what he described as a “cabal,” led by Federal Judge Stanwood Duval, conspired against him in order to promote their own $400 billion Katrina lawsuit against the U.S. Corps of Engineers that, it turned out, was rife with major conflicts of interest.

The “cabal” members, O’Dwyer said in filings, were signatories to a document entitled “Levee Breach Litigation Group Co-Counsel Agreement” and to a similar document for the “MRGO (Mississippi River Gulf Outlet) Litigation Group” by terms of which the signatories agreed to share legal fees with each other. Those signatories, he said, included Joseph Bruno (later appointed by Duval as “Plaintiffs Liaison Counsel” for all Katrina tort cases), Denham Springs attorney Calvin Fayard (the lead counsel for the MRGO litigation Group and likewise named by Duval to head the Insurance Committee), Danny Becnel and others.

O’Dwyer would not learn until much later that those attorneys had entered into an agreement with then-Attorney General Charles Foti, Jr., to “secretly represent the interests of the State of Louisiana, its agencies, instrumentalities and political subdivisions for the presentation of a tort claim on behalf of the State, et al, and against the U.S. Corps of Engineers, in the amount of $200 billion (later increased to $400 billion).”

O’Dwyer stressed that, “The existence of the agreement was not disclosed to the other litigants or to their attorneys…until the second anniversary of Katrina, August 29, 2007.”

The cabal’s strategy,” O’Dwyer said, was laid out when Duval traveled as Fayard’s guest to the LSU-Alabama football game in Tuscaloosa, Alabama, in November 2005. Duval, O’Dwyer pointed out, never disclosed the trip to Katrina litigants or their attorneys –some might describe that as an ex parte (one-sided) communication between a judge and a litigant, a legal no-no. Nor did Duval report the all-expenses-paid trip on his federal financial disclosure form as required (he would later claim “inadvertence” for the omission).

Also making that same expenses-paid trip were Duval’s wife who was also his law clerk and his “other” law clerk, who just happened to be Fayard’s daughter, Caroline, who organized the trip.

But back to that second anniversary of Katrina on August 29, 2007. Even as Fayard et al were refining their lawsuit, Duval was unceremoniously and summarily dismissing O’Dwyer’s lawsuit without so much as bothering to hear oral arguments, much less any discovery on the merits of the lawsuit he had filed on behalf of some 2,000 Katrina victims.

“In other words,” asserted O’Dwyer, Duval “engaged in a persistent course of conduct in the litigation to attempt to ‘feather the nest’ of his close personal friend of long-standing, Fayard, and was biased and prejudiced in favor of Fayard…”

Duval even went so far in February 2007 as to sanction O’Dwyer for “harassment” of the State of Louisiana (Fayard’s secret client at the time).

But then the unthinkable occurred when it was ruled that the United States, through the Corps of Engineers, was immune from being sued over the levee’s failure. That left only one obvious defendant – the State of Louisiana, and because Foti, as attorney general is constitutionally required to defend the State, it became an inconvenient – and obvious – conflict of interest for the State to be named as a defendant in their lawsuit.

A flurry of legal back-and-forth then ensued the details of which would only make a reader’s head hurt but the eventual upshot was:

• Judge Ivan Lemelle’s finding O’Dwyer in contempt and hitting him with a principal default judgment of $90,831.57, prejudgment interest of another $24,304.14, plus $150.56 per day from and including June 12, 2009, plus attorney’s fees in the amount of one-third of the principal and prejudgment interest, and for post-judgment interest on the principal sum and attorney’s fees;
• Lemelle’s recommendation that O’Dwyer be suspended and disbarred;
• Katrina victims were left holding the proverbial bag because of the failure of the “cabal” to name the state as a defendant;
• The eventual settlement of $21 million, of which $3.5 million went to attorneys’ fees, $13.5 million for “reimbursable” costs incurred by attorneys, and settlement checks as small as $2.50 for some Katrina claimants.

O’Dwyer subsequently attempted in vain to learn or obtain:

• The actual sum of money was made available for distribution to claimants;
• A spreadsheet that identified the sum of money that each claimant received;
• The actual sum of money that the lawyers received and the amount of money that each lawyer or firm received;
• The amount the Special Master received;
• How much demographer Gregory Rigamer or his companies, GCR, Inc., of Gregory C. Rigamer & Associates received;
• What the administrative costs were – and who received what amounts;
• Documentation for the assertion that the plaintiffs’ lawyers in the levee cases actually spent $13.5 million in reimbursable costs, and
• How much lawyers in the MRGO Litigation Group (as opposed to “levee” lawyers) received.

None of O’Dwyer’s requests for the foregoing information has been responded to and the information remains unavailable to the public.

All of the event described above, he said, began less than two weeks after Katrina struck New Orleans when Louisiana Supreme Court Associate Justice (later Chief Justice) Catherine “Kitty” Kimball, Charles B. Plattsmier, Jr. (chief disciplinary counsel of the Louisiana Attorney Disciplinary Board) and then-Attorney General Charles C. Foti, Jr., “among other co-conspirators,” met in Baton Rouge on Sunday, September 11, 2005. During that meeting, O’Dwyer says, Kimball said to those present, “Somebody’s got to shut that guy (O’Dwyer) up. He’s giving us all a bad name.”

As the direct result of what he describes as a “reign of terror” unleashed against him, O’Dwyer lost his law partnership, his law license, his home and his marriage of more than 40 years, his 380-SL Mercedes and all his financial resources. He was criminally prosecuted for two years (that was the only battle he eventually won) and even spent 34 days in solitary confinement and prolonged home confinement. Through all his travails, however, he has somehow retained his dignity.

UP NEXT: How O’Dwyer’s multitude of problems, though unrelated and decades apart, dovetailed with the legal entanglements that the embattled Archdiocese of New Orleans now finds itself in with its ongoing child sex abuse litigation.

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I don’t know about you, but my attention is going to be on Louisiana Sen. John Kennedy during the upcoming confirmation hearings on some of Donald Trump’s cabinet nominees.

Kennedy’s pretty good at getting out in front of the crowd in his attempts to appear wise and all-knowing, but I’m going to be look for some consistency in his questioning of some of these nominees.

I concurred with him in one rare case when he took President Biden’s nominee for a U.S. District judgeship in Colorado to task for his lack of basic knowledge of the Brady motion.

The Brady motion is only the legal concept which holds that the prosecution must hand over potentially favorable (exculpatory) evidence to the defense in a criminal trial. Any fan of the movie My Cousin Vinny knows that.

But Biden’s nominee, KATO CREWS, who had served more than four years as a magistrate judge, did not.

Any first-year law student should know that but Crews thought it involved “something regarding the Second Amendment.”

Kennedy loves playing cat and mouse with witnesses in order to advance his own agenda.

It’s going to be interesting to see how he questions Matt Gaetz (attorney general) or Kristy Noem (Homeland Security) or Robert F. Kennedy, Jr. (Health and Human Services) during their CONFIRMATION HEARINGS.

I’m betting it will be much different. I predict a gentler, kinder John Neely Kennedy – one with kid gloves.

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