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Archive for the ‘Judges’ Category

More details from the Jeff Mercer case against the Louisiana Department of Transportation and Development (DOTD) keep surfacing and each new revelation casts a long shadow over DOTD and the state judiciary, particularly in the second Circuit Court of Appeal.

And if that isn’t enough to shake your faith in the judicial system, the reputation of the 18th Judicial District across the Mississippi River from Baton Rouge ain’t looking too good, either.

LouisianaVoice has obtained a document addressing Mangham subcontractor Jeff Mercer’s claim that clear shows that DOTD and the Federal Highway Administration (FHWA) were in agreement on the AMOUNT DOTD ADMITTED OWING MERCER. In an email dated June 6, 2016, DOTD Executive Counsel Cheryl Duvieilh wrote to FHWA official Joshua Cunningham that Mercer was entitled to payment of $363,075, plus judicial interest of $42,358.91 for a total of $405,433.91.

That money, a fraction of the $10 million Mercer said he was owed but which was being withheld after he refused demands from DOTD supervisors to kick back money and equipment to him in exchange for approval of his work, still has not been paid.

Instead, DOTD told Mercer and his attorney the money would held “hostage” until everything was settled, knowing that even a partial settlement would be an admission that all of Mercer’s claims were valid.

A separate document obtained by LouisianaVoice also shows that prime contractor AUSTIN BRIDGE, through whom Mercer’s company was contracted as a subcontractor, was owed $9,081,695.30 to resolve its contract claims in a pending mediation session.

That document, from John M. Dubreuil and Ryan M. Bourgeois and addressed to Richard Savoie, was dated Oct. 2, 2013, said, “Accept this memorandum as a final request to participate in the scheduled mediation with a maximum settlement authority of $9.1 million. It was signed off on by Savoie and three FHWA officials.

While other documents were requested under the Freedom of Information Act (FOIA) and the state’s Public Records statutes, as well as through official discovery in part of the civil process of litigation over the payments, those were the only two documents DOTD provided. Agency attorneys refused to release all other documents relative to claims by Mercer or Austin Bridge.

Because settlement negotiations are not admitted into testimony, the jury hearing Mercer’s lawsuit against DOTD was never apprised of DOTD’s in-house admission that it owed the money to Mercer. Despite not hearing this information, the 12-person jury unanimously awarded Mercer $20 million after hearing the sordid details of attempts of extortion, bribery and strong-arming.

DOTD appealed and Second Circuit Chief Judge Henry N. Brown, whose father was a DOTD civil engineer for 44 years, assigned the case to himself and wrote the opinion overturning the jury’s award.

It would be one thing if this was an isolated incident. Sadly, though, it is not. While the vast majority of judges carry on their duties quietly and without fanfare in their genuine efforts to dispense justice equitably, there are always those who will attempt to exploit their positions. They will either attempt financial gain or exercise power and to gain prestige from the bench—or all three.

  • New Orleans Federal Judge G. Thomas Porteous was removed from the bench in 2010 by the U.S. Senate after being IMPEACHED.
  • Judges in the 4th Judicial District (Ouachita and Morehouse parishes) filed SUIT against Ouachita Citizen Publisher Sam Hanna, Jr., two years ago in an effort to thwart efforts by the newspaper to obtain public records.
  • Judges Ronald Bodenheimer and Alan Green went to jail and a third judge, Joan Benge, was kicked out of office by the Louisiana Supreme Court. All three were caught up in the FBI’s nine-year investigation dubbed OPERATION WRINKLED ROBE.
  • Judge Wayne Cresap, 34th JDC Judge for St. Bernard Parish, was sentenced to five years in prison in 2010 for accepting $70,000 in bribes.

The latest is one Robin Free, formerly of the 18th JDC, which includes the parishes of Iberville, West Baton Rouge, and Pointe Coupee.

Slated to return to the bench after a one-year suspension by the State Supreme Court, Free suddenly RESIGNED on Friday (June 23) following reports he had been HARASSING West Baton Rouge Parish Sheriff’s deputies over their issuing speeding tickets on U.S. 190.

He was near the end of his year’s suspension for failing to maintain the integrity of his position and for exhibiting behavior described as “injudicious, lacking judicial temperament and giving an appearance of impropriety.”

One of the reasons for his suspension was his acceptance of a FREE TRIP from an attorney who had won a big judgment in Free’s court.

Click HERE for the full text of the June 29, 2016, Louisiana Supreme Court’s Judiciary Commission report.

Even during his suspension (without pay), he still managed to stay on the public payroll when Iberville Parish President J. Mitchell Ourso HIRED him as supervisor of Iberville Parish’s Department of General Services (whatever that is) at $75,000 per year. Ourso said Free was hired to update the parish’s personnel manual and to assist in drafting the parish’s 2017 fiscal year budget.

Free has clearly demonstrated that he is unfit to be entrusted with handing decisions that impact the lives of others. Perhaps he is qualified to work in an administrative position, but we doubt it. He exhibits far too much narcissism to be placed in any position of trust.

He is merely a symptom of the bigger problem of the public’s becoming increasingly wary and distrustful of the judicial system. The Billy Broussard and Jeff Mercer cases only serve to underscore the validity of that distrust.

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Were political considerations behind separate decisions by a state district judge to prohibit a contractor from seeking public records or a Second Circuit Court of Appeal judge to overturn a $20 million judgment against the Louisiana Department of Transportation and Development (DOTD)?

While definitive answers are difficult, there does seem to be sufficient reason to suspect that the lines between the judicial and administrative branches of government may have been blurred by the Second Circuit Chief Judge’s decision to negate the award to a contractor who a 12-person jury unanimously decided had been put out of business because he refused to acquiesce to attempts of bribery, extortion and conspiracy.

Judge Henry N. Brown, by assigning the case to himself and then writing the decision despite the fact his father had been a DOTD civil engineer for more than 40 years, may have placed federal funding for Louisiana highway projects in jeopardy.

And the RULING by 14th Judicial District Court Judge David A. Ritchie prohibiting Breaux Bridge contractor Billy Broussard from making legitimate public records requests of the Calcasieu Parish Police Jury or of the Calcasieu Parish Gravity Drainage District 8 would appear to be patently unconstitutional based solely on the state statute that gives any citizen of Louisiana the unfettered right to make public records requests of any public agency.

In Broussard’s case, he was contracted by Gravity Drainage District 8 to clean debris from Indian Bayou following Hurricane Rita in 2005. Work done by his company was to be paid by FEMA. Gravity Drainage District 8 instructed Broussard to also remove pre-storm debris from the bottom of the bayou, telling him that FEMA would pay for all his work.

FEMA, however, refused to pay for the pre-storm cleanup and Gravity Drainage District 8 subsequently refused to pony up. Broussard, represented then by attorney Jeff Landry, since elected Attorney General, filed a lien against the drainage district.

When Broussard lost his case before Judge Ritchie, he continued to pursue his claim and submitted this PUBLIC RECORDS REQUEST to the drainage district and to the police jury. Those efforts resulted in a heavy-handed LETTER from attorney Russell J. Stutes, Jr., which threatened Broussard with “jail time” if he persisted in his “harassment” of Calcasieu public officials.

And the injunction barring Broussard from future records requests, instead of being filed as a separate court document, was sought under the original lawsuit by Broussard, which presumably, if Stutes’s own letter is to be believed, was a final and thus, closed case. That tactic assured that Broussard would be brought before the original judge, i.e. Ritchie, who was already predisposed to rule against Broussard, no matter how valid a claim he had.

That was such a blatant maneuver that it left no lingering doubts that the cards were stacked against Broussard from the get-go. Everything was tied up in a neat little package, with a pretty bow attached. And Broussard was left holding a $2 million bag—and assessed court costs of $60,000 to boot.

In Jeff Mercer’s case, federal STATUTE U.S. Title 49 specifically prohibits discrimination against Disadvantaged Business Enterprises (DBE). It further requires that all states receiving federal funding for transportation projects must have a DBE program.

Mercer, a Mangham contractor, sued DOTD after claiming that DOTD withheld more than $11 million owed him after he rebuffed shakedown efforts from a DOTD inspector who demanded that Mercer “put some green” in his hand and that he could “make things difficult” for him.

Mercer suffers from epilepsy, which qualified him for protection from discrimination under Title 49.

His attorney, David Doughty of Rayville, feels that Brown should never have assigned the case to himself, nor should he have been the one to write the opinion. Needless to say, Doughty does not agree with the decision. He has filed an APPLICATION FOR REHEARING in the hope of having Brown removed from the case.

LouisianaVoice conducted a search this LIST OF CASES REVERSED BY 2ND CIRCUIT and the Mercer case was the only one of 57 reversals decided by a jury.

So it all boils down to a simple equation: how much justice can you afford?

When an average citizen like Broussard or Mercer goes up against the system, things can be overwhelming and they can get that way in a hurry.

Because the government, be it DOTD, represented by the Louisiana Attorney General’s office, or a local gravity drainage district, represented by the district attorney, has a decided advantage in terms of manpower and financial resources, giving the individual little realistic chance of prevailing.

In Broussard’s case, he did not. Mercer, at least, won at the trial court level, but the process can wear anyone down and that’s just what the state relied upon when it appealed.

With virtually unlimited resources (I worked for the Office of Risk Management for 20 years and I saw how an original $10,000 defense contract can balloon to $100,000 or more with few questions asked), the government can simply hunker down for the long haul while starving out the plaintiff with delays, interrogatories, requests for production, expert costs, court reporter costs, filing fees and attorney fees. Keeping the meter running on costs is the most effective defense going.

The same applies, of course, to attempts to fight large corporations in court. Huge legal staffs with virtually unlimited budgets and campaign contributions to judges at the right levels all too often make the pursuit of justice a futile chase.

And when you move from the civil to the criminal courts where low income defendants are represented by underfunded indigent defender boards, the contrast is even more profound—and tragic, hence a big reason for Louisiana’s high incarceration rate.

The idea of equal treatment in the eyes of the law is a myth and for those seeking remedies to wrongdoing before an impartial court, it is often a cruel joke.

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Do you happen to remember the LouisianaVoice STORY of April 2014 in which Jeff Mercer, owner of a defunct Mangham construction company, claimed in a lawsuit that the state owed him more than $11 million that was withheld after he resisted shakedown efforts from a Department of Transportation and Development (DOTD) inspector who demanded that Mercer “put some green” in his hand and that he could “make things difficult for Mercer?”

Or do you happen to remember the follow up LouisianaVoice STORY of December 2015 in which the inspector, Willis Jenkins, admitted during the trial that he did indeed say he “wanted green,” but that he was only joking. Or that because money Mercer said he was entitled to was withheld, he eventually had to shutter his construction company?

Apparently Mercer possessed sufficient proof that a 12-person jury, after a grueling, 30-day trial, unanimously awarded him $20 million. Not only did the jury hold DOTD liable for damages, but it also held four individual DOTD employees—Willis Jenkins, Michael Murphy, Barry Lacy, and John Eason—personally liable.

Employed by the jury in arriving at its verdict was such benign nomenclature as “collusion,” “bribery,” “extortion,” “conspiracy,” and “corruption.”

But that wasn’t good enough for the Chief Judge of the Second Circuit Court of Appeal, a judge with a spotty legal record of his own—and a judge with ties sufficiently close to DOTD that he probably should never have touched this case in the first place—not even with the proverbial 10-foot pole.

Mercer’s award was not just reduced, but obliterated, when it was overturned in its entirety, showing again how subtle nuances of the legal system allow for gross injustice to be perpetrated against those lacking the right connections or campaign cash.

There was a similar case in Calcasieu Parish involving contractor Billy Broussard, a gravity drainage district, and a contract to clean hurricane debris out of a local bayou. Broussard was instructed to clean out pre-storm debris, to be paid by FEMA. FEMA refused to pay for the unauthorized cleanup, and the gravity drainage district has refused to honor its obligations, costing Broussard millions of dollars.

And the legal system has been irresponsible in protecting the rights of first Broussard and now Mercer, leaving one to wonder with some justification: “What happens when I need the protection of the courts?”

It’s interesting that in our society, we tend to put a lot of faith in robes. But a black robe and a gavel do not endow a person with wisdom, or even knowledge. They are merely symbolic. Yet, when we walk into a courtroom, we are expected—required—to be reverent, attentive, and respectful and to never, under any circumstances, question the authority of the man or woman on the raised bench clad in that black robe and holding that gavel.

Of course there must be decorum in an environment of dispute resolution. Otherwise, events quickly descend into chaos. But that certainly does not mean that the presiding officer of the court is infallible. Far from it.

And that seems to be the one fact that some judges tend to forget—all too often.

Judge Henry N. Brown, as Chief Judge of the Second Circuit, has the responsibility of assigning cases. In Mercer’s case, he somewhat incredibly chose to assign it to himself—and wrote the decision.

The problem with that? Oh, not much…except that Brown’s father was a civil engineer for DOTD for 44 years, thus creating what could be perceived as an instant conflict of interest. Nor, apparently, did he ever once see the need to inform Mercer or his attorney—or anyone else, for that matter—of this inconvenient little fact.

Mercer’s attorney, David Doughty of Rayville, is understandably upset. “Mercer has a constitutional right to a fair trial before an impartial judge,” he says in his MEMORANDUM in Support of Application for Rehearing and his Motion to Recuse and Vacate the Panel’s Opinion.

“Only after the June 7 decision (by the Second Circuit) did plaintiff (Mercer)/appellee learn that Chief Judge Henry Brown, Jr. failed to disclose the critical fact that his father, Henry N. Brown, Sr., had been a civil engineer for the State of Louisiana in the Shreveport area for 44 years,” the memorandum says.

Doughty cited a case in which a West Virginia judge refused to recuse himself and the state Supreme Court subsequently found “that the risk of perceived bias was so great that due process requires recusal.”

“Judge Brown’s failure to recuse himself from the case or even disclose this huge potential bias undermines the very fabric of our people’s faith in the judicial integrity of the Second Circuit Court of Appeal,” the memorandum says. “This failure erodes public confidence in the integrity or capacity of this judiciary.”

Doughty wrote that the Second Circuit’s decision should be vacated “especially in the wake of a unanimous 12-person jury verdict finding that the plaintiff had proven governmental corruption and conspiracy.”

Brown won a close race for reelection as district attorney in 1984 over then State Rep. Bruce Bolin of Minden. In that campaign, Bolin accused Brown of having dropped charges against 230 suspects. Some of those charges, Bolin said, included rape, narcotics violations and DWI. Bolin, in what must be considered campaign rhetoric, also said Brown had not adequately prosecuted murder cases.

But Brown was known for his dogged prosecution of murder cases as a district attorney. Sending five defendants to the electric chair, he was featured on CBS’s 60 Minutes and the Fox Channel’s The Reporters. He was called “The Deadliest Prosecutor” by one publication.

At least one of Brown’s high-profile prosecutions, however, was overturned by the Louisiana Supreme Court.

In 1986, he was the district attorney in the prosecution of James M. Monds of Keithville in Caddo Parish. Monds, at the time a surgical technician at Barksdale AFB, was convicted of the murder of a woman who was raped, assaulted, and mutilate in a high school parking lot. Despite his denial that he had ever met the victim and that he had no knowledge of her death, he was convicted. In 1994, the Louisiana Supreme Court ruled that insufficient evidence, most of it of a circumstantial nature, existed to continue to incarcerate Monds. He was subsequently released after serving nearly nine years in prison.

Doughty said it is a “matter of common sense that someone whose family is so deeply connected to the DOTD should not hear the case out of fundamental fairness” and that the decision to do so constituted violations of CANONS 2 and 3 of the Code of Judicial Conduct.

So, bottom line: There is often little correlation between law and justice.

And people like Jeff Mercer and Billy Broussard end up nailed to the wall by a perverted legal system that is grotesquely unfair, to say the least.

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Iberia Parish Sheriff Louis Ackal’s travails (largely of his own making) continue with the filing of yet another in a series of legal actions, this one a federal LAWSUIT filed by a former female deputy.

As is usually the case, no matter how the trial (or settlement, which is more likely) eventually turns out, the real winners will be the attorneys who will have managed to drag out legal proceedings for a minimum of 18 months, barring any further delays in the trial tentatively set for June 4, 2018.

If the case follows the all-too-common trend, however, there is almost certain to be unforeseen delays and continuances that will push that date back even further as attorneys (and there is a gaggle of those) continue to rack up billable hours.

Candace Rayburn, a deputy sheriff for more than five years, claims she was unceremoniously and summarily terminated after she spoke up in the defense of a female co-worker filed an EEOC sexual harassment charge against a male deputy.

Rayburn’s is another in a string of lawsuits filed against Ackal, who was recently acquitted in Shreveport federal court of criminal charges of abusing black prisoners of his jail. Those charges included beatings of prisoners and turning a police dog on a helpless prisoner, a gruesome scene that was captured on video and posted by LouisianaVoice earlier.

Ackal is also being sued for wrongful termination by another former deputy and by the family of a prisoner who died of a gunshot wound while handcuffed and in the custody of Iberia Parish Sheriff’s deputies. The official coroner’s ruling was that the prisoner, Victor White, died of a self-inflicted wound.

The sheriff is also indirectly involved in the manslaughter arrest of a man instrumental in starting a recall of Ackal over the White shooting. https://louisianavoice.com/2017/03/21/man-indicted-for-manslaughter-after-he-is-rear-ended-by-man-later-killed-in-separate-accident-his-sin-was-recall-of-sheriff/

Rayburn initially named both Ackal and the Iberia Parish Sheriff’s Office as defendants but recently amended her petition to include Ackal as the only defendant.

Ackal, who paid premium fees in his criminal defense, in a classic case of fiscal overkill, has opened up the parish bank in hiring not one, not two, not three, not four, but five defense attorneys, all from the same law firm.

That’s right. Because he’s being sued in his official capacity as sheriff, Iberia Parish taxpayers will pick up the tab for his legal bills—all of them.

Rayburn, who was employed as a Sheriff’s Deputy for IPSO from July 21, 2008 to November

15, 2013, says she received “overwhelmingly positive reviews from her Supervisors” and was even named “Employee of the Year” in 2012.

But when Deputy Laura Segura filed a sexual harassment complaint against Chief Deputy Bert Berry, she voiced her support of Segura. Within two weeks, she says, she was brought before the department’s disciplinary board which recommended a one-year probationary period and that she be offered remedial training. Instead, she claims in her suit, Ackal fired her for “multiple (uncited) policy violations,” actions she claims were committed “with malice.”

Rayburn is claiming loss of pay, loss of benefits, loss of earning capacity, emotional distress, and loss of enjoyment of life.

She is seeking reinstatement, as well as compensatory and punitive damages.

To say Ackal has lawyered up would be an understatement. He has retained half the Lafayette law firm of Borne, Wilkes & Rabalais: Allison McDade Ackal, Homer Edward Barousse, III, Kyle Nicholas Choate, Joy C Rabalais, and Taylor Reppond Stover.

Rayburn is represented by Justin Roy Mueller, also of Lafayette.

The calendar, rules, and SCHEDULE set forth by the court are simply mind-boggling and serve to illustrate why our courts are so backed up—and why justice is only for those who can afford it.

The court, invoking something called Rule 30(a)(2)(A), placed a limit of 10 on the number of depositions that may be taken in the case, limiting each to one seven-hour day—absent written stipulation of parties to the suit or of a court order.

Should the parties participate in the maximum 10 depositions with each one running the full seven hours allowed, that’s 70 hours of legal fees for which the parish must stand good.

Applying an arbitrary rate of $200 per hour (which most likely is considerably less than the hourly rate the parish paid his attorney in his criminal trial), that comes to $14,000—and that doesn’t count the costs of court reporters, expert fees, filing fees and countless other hours the five attorneys will be billing the parish for, or the Segura settlement which reportedly cost the parish in the ballpark of $400,000.

All in all, with all the legal expenses incurred by Ackal and his deputies in all the lawsuits and criminal charges, the folks in Iberia Parish must be asking themselves about now if they can really afford to keep such a financial liability in office.

Some might even call him high maintenance.

Others might call him a genuine physical threat.

By anyone’s definition, though, he is a loose cannon.

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While much has been written lately here and by other news outlets about overtime abuse by Louisiana State Police (LSP), particularly on that infamous trip to San Diego back in October, there is a program whereby State Troopers may legitimately accrue overtime through an agreement with local district attorneys

The Local Agency Compensated Enforcement (LACE) detail is a program established pursuant to an agreement between LSP and the district attorneys whereby fines collected by the local criminal court fund may be used to pay State Troopers overtime pay for additional highway patrols for traffic enforcement.

Prior to implementing a LACE program, the local law enforcement, judges and district attorneys must agree to implement the program, and the criminal court fund authorized by Louisiana R.S. 15:571.11(L) may be used to fund the overtime pay off-duty police officers to provide law enforcement services.

In 2011, the latest year for which figures are available, Louisiana State Police issued 120,437 speeding citations on LACE and 68,932 on regular duty, according to the 2012 annual report of the Louisiana Highway Safety Commission. With these combined resources, Louisiana experienced a 10.46 percent decrease in speed-related fatalities in 2011.

The program has not been without controversy as LouisianaVoice has found troopers, particularly in Troop D in Lake Charles, who were allowed to work LACE while suspended from regular duty for disciplinary reasons.

But what happens when a local district attorney signs on to the program and then doesn’t pay State Police for the overtime?

Well, since the troopers performed the work, they must be paid so the money comes from the LSP budget instead of from fines collected by the local jurisdiction as was the original intent.

That’s exactly what has happened in St. Landry Parish where the parish is in arrears by more than $290,000 for 11 months, from March 2016 through January of this year.

Because of the district attorney’s failure to pay, LSP has suspended LACE activity for St. Landry Parish.

The monthly amounts owed LSP by St. Landry District Attorney Earl Taylor range from $17,870 for August 2016 to $39,392 for January of this year, according to a month-by-month accounting provided by LSP pursuant to a LouisianaVoice public records request.

Charles Cravins, formerly the regional director for the Fourth Congressional District, serves as Taylor’s Chief Administrative Officer, lending credence to the idea that he would be the one to see that the bills are paid. The District Attorney’s Web page boasts, that Cravins’ “extensive administrative experience” and his background in public service “makes him well equipped to handle the day-to-day operations of the D.A.’s office.”

So how did St. Landry manage to get 11 months in arrears (not counting February or March of this year)?

“I have no idea,” said LSP public information officer Maj. Doug Cain.

Could it be because so many cases are nolle prossed?

“No way,” says a retired State Trooper. “With the income they generate from tickets, they have plenty of money to pay LSP.”

He’s probably right, considering I-49 runs through St. Landry which provides a ready-made money machine for traffic courts from Lafayette to Shreveport.

Perhaps a better question is why did LSP allow Taylor to ignore his obligations for long while continuing to assign troopers to LACE duty in St. Landry?

Perhaps Taylor is about to make efforts to finally bring his account current.

In a two-page letter to Taylor dated March 22—two days before State Police Superintendent Mike Edmonson’s retirement took effect—LSP Assistant Secretary and General Counsel Gene Cicardo referenced a payment schedule the district apparently has agreed to. Cicardo asked that Taylor sign and return a copy of the letter “to memorialize our agreement” so that LSP may be paid for its work and so that it may reinstate the LACE program for St. Landry.

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