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Archive for the ‘Judges’ Category

We have apparently entered into an era in which a public servant who does his job as he should now runs the risk of being named a defendant in one of those strategic lawsuits against public participation (SLAPP) discussed in recent LouisianaVoice posts.

The very prospect of Legislative Auditor Daryl Purpera being sued for issuing a press release about an audit report his office performed should send a chill throughout the Fourth Estate—mainstream media as well as bloggers. Who’s to say you can’t be sued for discussing an audit report over a Frappuccino at Starbucks?

Welsh Alderman Jacob Colby Perry recently won a court victory when the judge threw out not one, but four SLAPP LAWSUITS against him but now the attorney for the four who sued him—the Welsh mayor, her children, and the police chief—is attempting to get the presiding judge recused from the case in a desperate attempt to keep the frivolous lawsuits alive.

Louviere v Perry

Johnson v Perry

Cormier v Perry

And now we have a STORY in the Baton Rouge Advocate telling us that Baton Rouge attorney Jill Craft is suing Purpera on behalf of her client, former Secretary of Veterans’ Affairs David LaCerte—not because an investigative audit by Purpera’s office found that LaCerte, a Bobby Jindal appointee, allowed fraudulent behavior in his department, but because Purpera had the audacity to issue a press release saying so.

The state asked that 19th Judicial District Court Judge William Morvant dismiss the lawsuit on the grounds that Purpera was protected by the same statute that protects the speech of legislators.

Incredulously, Morvant ruled that while the auditor’s investigative report was protected, the press release issued by Purpera’s office was not. “I don’t think the press release falls within that immunity,” Morvant said, apparently with a straight face.

That immediately raises the question of whether or not the media are free to write their own story from the report. In other words, yer honor, can I, as a news reporter, write a comprehensive story that accurately reflects the contents of the audit without fear of some attorney swooping down and SLAPPing me?

  • Can LouisianaVoice or The Advocate, or any other medium be SLAPPed for writing that a contract for the privatization of a state hospital contained 50 blank pages, even though it did?
  • Is it defamation that reporters wrote about the oil and gas industry pouring contributions into the campaigns of a governor who killed a lawsuit against 97 oil and gas companies?
  • Can Lamar White be SLAPPed because he wrote about U.S. Rep. Steven Scalise speaking at an event attended by David Duke? That certainly didn’t reflect well on Scalise’s image.
  • Can Bob Mann be SLAPPed for admonishing Republican politicians to quit calling themselves “pro-life” if they “can’t speak out on behalf of sick kids” after Louisiana’s congressional delegation remained silent after Congress allowed the CHIP program to expire? That was, after all, a pretty damning condemnation of those self-righteous Republicans who seem to believe life begins at conception and ends at birth.
  • Can Robert Burns be SLAPPed for documenting payroll fraud on the part of an employee of a state board?
  • Can The Lens, a New Orleans online news service, be SLAPPed for exposing the Orleans Parish District Attorney for issuing bogus subpoenas?
  • Can a Houma blogger be SLAPPed for criticizing Sheriff Jerry Larpenter? Apparently the sheriff thought he could be at least raided. Instead Larpenter wound up having to pay substantial damages in the ensuing lawsuit, so at least there’s that.

We’ve already seen SLAPP suits where Superintendent of Education JOHN WHITE sued private citizen James Finney over Finney’s request for public records.

That followed a similar lawsuit filed by 4th Judicial District JUDGES against the Ouachita Citizen over the newspaper’s unmitigated gall in seeking public records from the court.

When the audit was issued, LaCerte’s attorney at the time called the audit’s findings “blatantly false. Both the interim secretary and the newly-appointed secretary of Veterans’ Affairs agreed with the findings and had taken corrective actions, Purpera’s news release said. The news release also noted that LaCerte’s attorney at the time called the audit’s findings “blatantly false.”

One thing Louisiana’s anti-SLAPP laws do is provide for the awarding of legal fees should a defendant prevail in one of these outrageous attempts to stifle public discourse.

Perry stands to collect something on the order of $16,000 in attorney fees. If plaintiff attorney Ronald Richard persists in pursuing this matter, he will be doing his clients a disservice because those attorney fees for Perry can only continue to climb.

LouisianaVoice also collected attorney fees in a recent SLAPP action when the presiding judge ruled in our favor. But there appears to be no shortage of plaintiffs willing to sue and unless judges start imposing sanctions, there will be no incentive for attorneys to refrain from collecting legal fees to represent them.

Morvant’s ruling, for lack of a better term, is an absurd interpretation of the First Amendment held in such high esteem by Thomas Jefferson who once said if forced to choose between a government without newspapers or newspapers without a government, “I should not hesitate a moment to prefer the latter.”

This is just the kind of ruling, if it is allowed to stand, that can send us barreling down the slippery slope to a government without newspapers—or any other independent media with courage enough to report the truth.

Somewhere in the great hereafter, Richard Nixon and Spiro Agnew are applauding Morvant’s ruling and should he learn of it, Donald Trump will no doubt be tweeting the glad tidings of great joy about the “fake news” comeuppance.

 

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If Terrebonne Parish Sheriff Jerry Larpenter feels as if he is being squeezed these days, it is for good reason.

He is.

On the one hand, state district judges of the 32nd Judicial District are requiring that Larpenter perform the duties of his job.

On the other hand, federal investigators reportedly are looking into the manner in which Larpenter performs the duties of his job. Reports are the FBI recently completed two days interviewing one of Larpenter’s deputies. The nature of those interviews was not immediately known.

Meanwhile, two private security guards and a Houma police officer have taken over security at the Terrebonne Parish Courthouse following the high sheriff’s refusal to do so even though state statutes clearly say:

  • “Court criers are to be provided by the sheriff of each parish to each district judge.”
  • “The crier of a court (notice this is not restricted to Orleans) shall attend all sessions thereof, under the direction of the judge shall open and close court at each session, and maintain order and decorum in the court room, and shall perform such other duties as are assigned to him by law, the court, or the sheriff.” (emphasis added)
  • “Each sheriff or deputy shall attend every court that is held in his parish…”
  • “Security in the courthouse is the responsibility of governing authority (Gordon Dove), but an agreement may be made between the parish officers and the building to share the expenses.”
  • “The principal functions of the criminal sheriff are that of being keeper of parish jail and executive officer of the Criminal District Court.”

Larpenter tried to pull rank on the judges by refusing a request by Judge Randal BETHANCOURT to provide more security details assigned to the courthouse. Larpenter demanded more pay for doing so and the judges said no dice. That standoff more or less backed the judges into a corner by forcing them to retain private security and municipal police officers.

Following the dispute over additional security vs. additional pay, Larpenter took photographs of inmates being transported to court and being held in holding cells until being called for their hearings and arraignments.

Armed with the photographs, Larpenter called the State Fire Marshal down on the court, apparently for the overcrowded conditions in the cells.

A little background is in order here. The State Fire Marshal, like the State Superintendent of Police is a position filled by appointment of the governor but no governor in his right mind would do so independently, i.e. without the blessings of the Louisiana Sheriffs’ Association. Make no mistake, the sheriffs’ association dictates to every governor who shall fill the positions of Secretary of the Department of Public Safety and Corrections, State Fire Marshal and State Superintendent of Police. Ergo, Larpenter felt sufficiently confident to call in the big boys on the judges—big boys that his association props up.

Down and dirty politics at the local level? Damned right and normally that would be a lethal weapon given the formidable alliance of the sheriffs’ association, Secretary of Public Safety, State Superintendent of Police and State Fire Marshal. In case no one has been paying attention, those are the preeminent law enforcement agencies of the state. You generally don’t cross swords with that kind of power.

Larpenter then goes to the local press with his brainstorm for a great cost-cutting measure: video arraignments.

But that was only a temporary setback as the judges came back with their own “gotcha.”

First, they issue an order banning all video arraignments, thereby forcing Larpenter to bear the costs of transporting more than 150 prisoners for hearings two weeks ago.

Then, Judge David Arceneaux signed an order in which he struck through language requiring the warden of Dixon Correctional Institute in East Feliciana Parish, 120 north of Houma, to transport a prisoner from the facility to Houma and back. Judge Arceneaux then wrote in longhand, “Terrebonne Parish Sheriff to transport from Dixon Correctional Institute,” adding that Larpenter was to deposit $1500 for the cost of transporting the prisoner.

Needless to say, all this has set off a minor war in the 32nd JDC. Larpenter sputtered and fumed but Bethancourt replied it was all Larpenter’s fault, supposedly for balking at providing more security for the courthouse.

Regardless whose fault it is for the situation to have deteriorated so badly, it has morphed into a very interesting little turf war that isn’t like to end soon—or well. And it promises to be a fight worthy of the sordid reputation of Louisiana politics.

The number two spectator sport behind football.

In other words, fun.

 

 

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A three-judge panel of the First Circuit Court of Appeal in Baton Rouge has scheduled arguments for Tuesday in the state’s appeal of a DECISION by a 19th Judicial District Court judge last March that knocked down much of the Jindal administration’s arbitrary rule changes in the approval of medical treatment for state employees injured on the job.

The decision was another in a long line of “reform” movements by Jindal—and pushed by the American Legislative Exchange Council (ALEC)—that were subsequently found to be unconstitutional or simply fell apart. Some of those included public education funding, group medical coverage for state employees, public-private partnerships in the operation of state hospitals, prison privatizations and tax proposals.

In his March 30 seven-page REASONS for JUDGMENT that followed a Feb. 7 bench trial, District Judge Don Johnson noted that:

Because the legislature did not authorize OWC to create a new rule creating a “tacit denial” when the provider simply ignores a request for treatment, “the Office of Workers Compensation exceeded its legislative authority as (it) lacks the authority to create and implement procedural regulations that authorize the ‘tacit denial of requested medical treatment which is statutorily obligated to the injured worker by the employer pursuant to (state statute).”

Johnson also found that OWC promulgated rules requiring injured workers to meet a higher burden than the state statute for any variance in an injured worker’s treatment schedule are “vague and the regulations are arbitrary, denying injured workers’ medical treatment that Louisiana employers are statutorily obligated to provide…”

Johnson also found that the “scheme” for determining whether an injured worker can receive medical treatment outside the Louisiana medical treatment guidelines (MTG) “is unduly burdensome.”

Special Assistant to the Director Carey Holliday testified that he was hired to help “bring the judges into conformity,” according to the answer to the state’s appeal filed by attorney J. Arthur Smith III on behalf of several plaintiffs. Holiday did that by implementing judicial performance evaluations. While he acknowledged he could not tell judges how to rule, he could “put them together and let them talk” and that “there will be some conformity…to come out of that,” Smith said in his answer.

The most damning revelation to come out of last February’s trial was testimony of improper Ex Parte communication between insurance carriers and defense attorneys about the merits of injury claims pending before OWC judges. Those communications were usually in the form of emails.

For example, one such email from a workers’ compensation defense attorney to former OWC Director Wes Hataway, Holliday, and the OWC chief judge contained complaints that one judge had ruled against an employer. The email went on to say of the judge, “He should be fired immediately,” and implied that the judge’s skills were less than those of a first-year law student. “He will do as he pleases no matter what,” the email said. “If this isn’t grounds to fire a judge, I don’t know what is.” The defense attorney ended his email by saying, “I think it’s time for the W.C. judges to become accountable for their actions.”

Judge Johnson took a dim view of this disregard for judicial independence by the 2011 decision to remove of the decision-making authority of the OWC judges and place it in the hands of the OWC Medical Director, Dr. Christopher Rich.

Johnson ruled that OWC “has violated the separation of powers doctrine by compromising judicial independence” by giving unpreceded powers to Dr. Rich, who was awarded a $500,000 contract to serve as medical director.

Rich, if nothing else, is consistent. Previously involved in ethical problems with another state contract, LouisianaVoice wrote about an apparent conflict of interest. In March 2011, the State Ethics Board ruled that he was prohibited, in his capacity as Medical director of OWC from participating in any matter involving Central Louisiana Surgical Hospital, a facility in which he owned an interest and which provided medical treatment to injured workers.

As OWC Medical Director, he could deny coverage to a state employee and then refer the employee to Central Louisiana Surgical Hospital for private treatment.

And did he ever deny coverage to state employees once ensconced as medical director. He even testified in February that he ignored the clinical judgment of treating physicians, even specialists, giving no weight to the recommendations of treating physicians. Moreover, according to his own testimony, he never examined an injured worker even though he made the final decision on what, if any, medical treatment the employee would receive. He even overruled a neurosurgeon’s recommendation that an employee undergo a cervical fusion because he, Rich, did not deem it necessary.

Attorney Janice Valois Barber testified in February that Rich had denied 100 percent of her clients’ requests for medical treatment variances. Dr. John Logan also testified by deposition that 100 percent of his variances likewise had been denied by Dr. Rich. Dr. Logan said that many of his patients simply gave up, knowing they would never get approval for the medical treatment they needed.

Dr. Pierce Nunley testified that he performs spinal surgery on almost a daily basis. He said he has attempted to contact Dr. Rich regarding Rich’s repeated refusals of request for treatments that vary from the MTG but was never able to get through to Rich nor did Rich return his calls.

So now, the state is continuing to pour good money after bad by appealing the decision of the lower court in an effort to uphold what was—and is—a very bad policy in dealing with people’s lives.

To us, it doesn’t seem quite right that one man, who never even once examined a patient would deny 100 percent of all requests for variances in the normal medical treatment guidelines. Surely there were a couple of valid claims in all of that.

But by consistently rejecting each and every claim, Dr. Rich was enforcing the Bobby Jindal code of justice and fair play.

It might be fine for Jindal to sell his books to his foundation in order to divert money from his non-profit into his pockets but no injured worker had a right to receive treatment for his injuries.

It might be fine for a legislator to lease luxury automobiles, pay ethics fines or even income taxes from campaign funds or for legislators to place relatives in state employment, but we just can’t have judges giving these deadbeat state employees a decent break.

And why not? The money-sucking appeals aren’t costing elected officials and bureaucrats anything. The tab is being picked by those clueless taxpayers. And besides, the state has plenty money.

The three-judge panel hearing the case includes appeal court judges John Michael Guidry, John T. Pettigrew and William J. Crain.

 

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Vincent Simmons has been imprisoned at the Louisiana State Penitentiary at Angola for 40 years for a crime that he almost certainly did not commit and our vaunted system of justice is largely responsible for his inability to get a fair hearing.

The timeline of events alone should be reason enough to have granted him a new trial decades ago. Yet, he continues to languish at “the farm,” the name bestowed upon Angola in a 1998 documentary about Louisiana’s notorious maximum-security prison.

For openers, the time between public defender Harold Brouillette’s filing of a motion for preliminary hearing and Simmons’s conviction was an astonishingly short interval of only 27 days, hardly sufficient time to put on any semblance of a defense.

Normally, it takes much longer between an accused’s arrest and his trial. This is so defense attorneys can compile a list of witnesses, engage expert testimony, and obtain all evidence possessed by prosecutors. Sexual assault cases typically take SIX MONTHS between indictment and trial, according to the Bureau of Justice Statistics.

It took half that long for the supposed victims to come forward and report that they’d been raped.

Here is the TIMELINE of events:

Monday, May 7, 1977—Twin 14-year-old sisters are riding around with their 18-yeaar-old cousin, Keith Laborde when they allegedly encountered an unknown black man at a 7-Eleven convenience store who asked them to give him a ride to his home. En route, he pulls a gun and forces Laborde to drive down a remote country road to a spot near a lake and there rapes the two girls.

Sunday, May 22, 1977—The two girls report—for the first time—to Sheriff “Potch” Didier, Maj. Fablus Didier, Capt. Floyd Juneau and Deputy Barbara DeCuir at the Avoyelles Parish Sheriff’s Office that a “black man” raped them on May 9, 1977.

7 a.m., Monday, May 23, 1977—Shift begins for Juneau and Lt. Robert Laborde (Laborde is a cousin of Keith Laborde).

8 a.m., Monday May 23, 1977—Juneau and Laborde make the decision to arrest Vincent Simmons.

9 a.m., Monday May 23, 1977—Simmons is walking down Waddil Street in Marksville when Juneau and Laborde, passing by on patrol, arrest him—without a warrant—on two counts of aggravated rape. Sheriff Didier orders a lineup. The lineup consists of seven blacks and one white. Of the eight men in the lineup, Simmons is the only one in handcuffs. Keith Laborde and the two girls observe the lineup from behind a mirror and pick out Simmons even though the girls had said all black men looked alike to them. Simmons is taken upstairs but is never interrogated. When Simmons refuses to sign a confession that had already been prepared by Laborde, he is shot in his left chest by Laborde. Laborde and Capt. Melvin Villemarette claim that Simmons took Villemarette’s gun and tried to shoot them, though he is never charged with that offense. Simmons is transferred to Huey P. Long Hospital in Pineville. Judge Earl Edwards now issues the warrant for the arrest of Simmons for the rape of the girls.

Tuesday, May 24, 1977—Coroner F.P. Bordelon, MD, examines both girls and discovers that one of the girl’s hymen is still intact, indicating she is still a virgin. The other girl admits to having had consensual sexual intercourse nine months earlier.

Friday, May 27, 1977—Simmons is released from the hospital and he is transferred back to the Avoyelles Parish jail.

Friday June 30, 1977—An Avoyelles Parish grand jury indicts Simmons on two counts of aggravated rape and two counts of attempted murder. Dr. Bordelon formulates his findings about his medical examination of the two girls and sends report to District Attorney Eddie Knoll. During trial of Simmons, jurors never learn of the existence of this report.

Thursday, June 23, 1977—Public defender Harold Brouillette, later to be elected a state district court judge, files a motion for a preliminary hearing. Judge Edwards orders that a preliminary hearing be held in the case of State of Louisiana vs. Vincent Simmons on the two counts of aggravated rape at 1 p.m. on Wednesday, July 7, 1977.

Wednesday, June 29, 1977—U.S. Supreme Court rules in Coker v. Georgia that the death penalty is unconstitutional for the crime of rape. This means that pursuant to the decision, the penalty for aggravated rape is only 20 years per count as opposed to attempted aggravated rape, for which no penalties had been set.

Thursday, July 7, 1977—At the 1 p.m. preliminary hearing, Judge Edwards schedules Simmons’s trial for July 18, 1977, giving Brouillette only 11 days to prepare for trial. This is known as a court’s “rocket docket,” whereby certain cases are moved to the top of the court’s list of scheduled cases.

Thursday, July 14, 1977—Assistant District Attorney Jeanette Knoll, wife of District Attorney Eddie Knoll, files a motion to amend the indictment to two counts of attempted aggravated rape. Judge Edwards signs the motion behind closed doors—without a second grand jury hearing. This opens the way for prosecutors to seek penalties of 50 years imprisonment for each count of attempted aggravated rape. Jeanette Knoll would later be elected to the Louisiana State Supreme Court.

Monday, July 18, 1977—Jury selection begins in the trial of Vincent Simmons.

Tuesday, July 19, 1977, and Wednesday, July 20, 1977—Two-day trial of Vincent Simmons is held, concluding in a guilty verdict on each count of attempted aggravated rape.

Thursday, July 28, 1977—Judge Earl Edwards imposes a 100-year sentence (50 years for each count, to run consecutively) on Simmons.

So, there you have it: a delayed report of rape to the suspiciously quick arrest, an equally quick trial that made it impossible for a public defender with no funds to retain expert witnesses or to conduct extensive investigations, to the manipulation of charges so as to obtain the maximum punishment for a crime that Simmons most likely never committed. The fast track his case was put on—with such an obvious lack of supporting evidence—makes it appear that authorities were almost desperate in their haste to run him through the system and get a conviction. To think those charged with protecting our rights and freedoms would stoop to such tactics should send a chill down all our spines for who’s to say we might not be the next to undergo such treatment at the hands of the law and order advocates?

Someone coined the phrase “Justice delayed is justice denied.” This rings especially true in the case of Vincent Simmons. Justice for him has been delayed for 40 years—and counting. His story and sadly, as is true of so many others like him, is the type justice that a defendant might expect to encounter when he doesn’t have:

  • Money;
  • Connections;
  • A name that screams influence;
  • Highly-paid attorneys;
  • The right color skin.

For an example of all the above, see LOUIS ACKEL.

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To paraphrase Ronald Reagan, there Jerry Larpenter goes again.

Larpenter, the controversial sheriff and apparent strong man of Terrebonne Parish, seems to make decisions on the fly, a-la Donald Trump, about what is and what is not illegal in his parish, established laws be damned. And make no mistake, he is convinced it’s his parish.

Larpenter’s most recent dust-up is over the provision of security in the parish courthouse—which he refuses to do despite laws on the books that clearly say that is part of his job.

The result of his refusal is that the Houma Police Department is now performing security at the Terrebonne Parish governmental building and parish courthouse—all with the blessings of Parish President/Environmental Watchdog Gordon Dove GORDON DOVE.

Dove, while serving in the State Legislature as Chairman, of all things, of the House Committee on Natural Resources and Environment, managed to get one of his companies, Vacco Marine, Inc., cited on several occasions by the Louisiana Department of Environmental Quality (DEQ), a feat almost impossible to accomplish in Louisiana. Another company, Dual Trucking, was cited by the Montana Department of Environmental Equality for dumping radioactive waste from the nearby Bakken Oilfield in neighboring North Dakota.

Rumor has it—and this is strictly the word on the street, which more often than not, has more than a grain of truth to it—that 32nd Judicial District Court Judge Randal Bethancourt wanted more security details assigned to the courthouse in beautiful downtown Houma.

This is the same Judge Bethancourt who, apparently without consulting a law book about probable cause or the First Amendment, signed off on a warrant that allowed the high sheriff to come calling on an Internet blogger sometime around dawn to seize computers, cellphones and other electronic equipment—for no other reason than he was pissed because the blogger said some uncomplimentary things about him and the political establishment of Terror-bonne Parish.

To read the LouisianaVoice story of the infamous Free Speech Raid, click HERE.

After a federal court ruled the raid and seizure of the electronic equipment unconstitutional, the blogger, Houma policeman Wayne Anderson and his wife filed suit against the sheriff who SETTLED out of court for an unknown but substantial sum.

Apparently, if the scuttlebutt is correct, Larpenter said no to the request for additional security and he and His Honor got into something akin to a minor verbal war that ended with Larpenter telling Bethancourt that it was the judge’s fault that he, Larpenter, had to lay out some major cash on the Andersons, forgetting, apparently, that it was he, not the good judge, who asked for the search warrant in the first place.

Larpenter must have also forgotten for the moment that he didn’t have to pay a dime of the judgement—or his attorney bills. Those were covered by his office’s liability insurance policy.

But hey, we already said Larpenter thinks and acts a lot like Trump so this is validation of that descriptive analysis.

And just as with the raid on the Andersons was unconstitutional, Larpenter’s refusal to provide courthouse security appears to be at loggerheads with what the law says his duties are.

State statutes leave little wiggle room when they say:

  • “Court criers are to be provided by the sheriff of each parish to each district judge.”
  • “The crier of a court (notice this is not restricted to Orleans) shall attend all sessions thereof, under the direction of the judge shall open and close court at each session, and maintain order and decorum in the court room, and shall perform such other duties as are assigned to him by law, the court, or the sheriff.” (emphasis added)
  • “Each sheriff or deputy shall attend every court that is held in his parish…”
  • “Security in the courthouse is the responsibility of governing authority (Gordon Dove), but an agreement may be made between the parish officers and the building to share the expenses.”
  • “The principal functions of the criminal sheriff are that of being keeper of parish jail and executive officer of the Criminal District Court.”

And then there is Opinion 12-0187 of the Louisiana Attorney General’s office dated Feb. 7, 2013 which says in part:

“…security provided in the courthouse is the responsibility of the parish governing authority under this statutory regime…” and that “…the governing body of the parish shall pay to the sheriff or his deputies attending upon the sessions of their respective courts of appeal and district courts…” Click HERE to read the full opinion:

Even the Texas Judicial Council addressed the issue in a 2016 REPORT on Court Security. Of course, policies in Texas and other states have no bearing on what Louisiana policy regarding courthouse/courtroom security. Still, it’s significant to note that the report says:

“The sheriff in each county is responsible for providing courthouse security.5 The municipal governing body is responsible for doing so in municipal court buildings. While the judiciary itself does not have responsibility or authority for providing court security, it is often in the position to advocate for appropriate security to ensure that individuals in the courts are not threatened as they seek access to justice. In addition, sheriffs and municipalities are not generally responsible for providing direct security to judges and court personnel when they are away from a courthouse, unless specific circumstances warrant such. Rather, it is judges and court personnel who are responsible for ensuring their own safety.”

All of which, of course, means exactly nothing to Larpenter. After all, he makes up his own laws and who are we—or judges, for that matter—to question that authority?

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