In this episode of Magnum J.D.: Honest journalism or a friends and family promotion program at WWL TeeVee? (Part 3)

My last post on this topic of the recent WWL TeeVee profile of Shane Gates spurred a reader to do a bit of docket diving on PACER on the civil case Gates v Strain and what we found raises even more questions about Mike Perlstein’s 2 part made for TeeVee News special report on the arrest of Shane Gates in November 2006 and injuries he sustained in the incident.  You see folks, part of what made Part 2 of Perlstein’s report ring so hollow was that all the legal experts Perlstein quotes, including WWL’s own in house expert Chick Foret, presented a version of the related civil case that did not compare with the court record itself.  No court document illustrates the disconnect better than Gates v Strain document #196, order and opinion by Judge Stanwood Duval.  Before I quote from that document, let’s visit with Part 2 of Mike Perlstein’s report on the arrest of Goatherder Shane Gates titled Attorney says justice intentionally stalled in deputy beating case:

Gates’ lawyers got a speedy acquittal by presenting a very different picture. An expert witness said the chase actually lasted for only six-tenths of a mile and 80 seconds. The DWI allegations were contradicted by the fact that Gates was pulled over just minutes after leaving a car dealership finance office after buying a new Pontiac.

“The jury in St. Tammany Parish did not buy the DA’s theory of his case when it was tried,” Williams said. “They came back in almost record time as to a not guilty verdict.”

Did you get the message folks? You know, the one where Gates was acquitted on his felony DWI charge? Not so fast as it turns out the only Felony charge Gates faced was Unlawful flight but let’s circle that for now as we continue:

“The district attorney should not be prosecuting the victim,” Williams said. “The district attorney should be prosecuting the perpetrators.”

Williams is representing Gates in a civil rights lawsuit in federal court. That lawsuit was filed in October 2007, 11 months after the fateful traffic stop. But that suit has been put on hold because the St. Tammany District Attorney’s Office continues to prosecute Gates.

Gates’ attorneys believe St. Tammany authorities are intentionally stalling justice. One of those attorneys is the retired chief justice of the Louisiana Supreme Court, Pascal Calogero.

In the immortal words of AMV politely telling TheRiot to go to hell.

You’re entitled to your opinion but not your facts.

You see folks what we saw in part two of Perlstein’s report is in fact an artful presentation of another disaster in the civil suit, where Team Gates has previously been sanctioned for legal jackassery a 3rd year law student would have enough sense not to attempt in this case deceiving Judge Duval with a bogus Motion to Reopen Gates’ 42 U.S.C. §1983 Action against Sheriff Strain.

So according to Perlstein’s story, Gates was acquitted of DWI, the DA is prosecuting the victim, that St Tammany Parish is delaying justice and the misdemeanor charges are tantamount to double jeopardy:

“I think it has all kinds of double jeopardy implications. As everyone knows, you can’t be tried twice for the same crime in America,” Williams said.

The Fifth Amendment prohibits double jeopardy, and Eyewitness News legal analyst Donald “Chick” Foret thinks that might be happening here.

“It seems to me that the evidence is going to be almost the same, if not the same,” Foret said.

It was at that point Perlstein allowed Gates’ new lawyers James Williams to question the ethics of Sheriff Strain’s attorney Chuck Hughes, which in turn still makes me giggle hysterically given William’s track record.

The rest of the story is the DWI charge has not yet been tried and those misdemeanor charges have been pending since well before Gates’s acquittal on the related felony charges as Judge Duval explains:

  • On July 27, 2012, a jury in the 22nd Judicial District for the Parish of St. Tammany found Shane Gates “Not Guilty” of the crime of aggravated flight or any lesser included offense;
  • On August 4, 2012, Mr. Gates filed a “Motion to Reopen 42 U.S.C. §1983 Action as The Twelve Person St. Tammany Jury Has Found Gates Not Guilty of Aggravated Flight or Any Lesser Charge” and set that motion for submission on August 22, 2012 (Doc. 136).
  • The Court granted plaintiff’s motion on August 8, 2012 (Doc. 143).
  • At the time the Court granted plaintiff’s motion, defendants had not yet filed a response to the motion to reopen.
  • At the time of Mr. Gates’s acquittal on the aggravated flight charge, there remained pending in the 22nd Judicial District Court, a misdemeanor bill of information charging Mr. Gates with one count of operationing a vehicle while intoxicated (La. Rev. Stat. 14:98) and two counts of resisting an officer (La. Rev. Stat. 14:108). Those charges remain pending and await the setting of a new trial date. The charges were previously scheduled for trial on August 31, 2012, but for reasons not apparent from the record the state district judge continued the trial.

So what does this mean? Judge Duval again explains:

Courts look to the standard applicable to Rule 60(b) motions for guidance in reconsidering interlocutory orders. See Teal v. Eagle Fleet, Inc., 932 F.2d 341 (5th Cir. 1991); The Tokio Marine and Fire Insurance Co., Ltd. v. M/V Flora, 1999 WL 461966 (E.D. La. July 2, 1999). Rule 60(b) provides for relief from an order for, among other reasons, “mistake.” At the time the Court granted the motion to reopen this matter, it was unaware that misdemeanor criminal charges remained pending against Mr. Gates. Neither the motion to reopen nor the plaintiff’s memorandum in support of that motion indicated that criminal charges remained pending against Mr. Gates. Had the Court known that the misdemeanor criminal charges against Mr. Gates were still pending, it would have denied the motion to reopen. Therefore, the Court grants defendants’ joint motion for rehearing with respect to its order reopening this matter.

Ah yes ye ol’ sin of omission. Omitting salient facts from affidavits and court pleadings is a Goatherder specialty and you would think by now the media would be hip to such abusive litigation tactics but in this case it appears Channel 4 was too busy dealing in Eric Paulsen’s personal friendships to do the salient fact checking.  By my count this would be at least the second time Team Gates has misled Judge Duval as to the status of his criminal case in St Tammany.

As to James Williams’ and Chick Foret’s assertion these misdemeanor charges constitute double jeopardy? Come on man!

Plaintiff asserts that having been acquitted of the aggravated flight charge, “the district Attorney cannot now bring these old charges offering the same evidence again.” Doc. 163, p. 1. Plaintiff’s contention lacks merit. The jury acquitted Mr. Gates after concluding that the evidence presented by the prosecution failed to satisfy the prosecution’s burden of proving the elements of aggravated flight and its lesser included offenses beyond a reasonable doubt. No jury has yet evaluated the prosecution’s evidence to determine whether it establishes beyond a reasonable doubt the elements of the offense of resisting an officer. Because the elements of aggravated flight and resisting an officer are not identical, plaintiff’s acquittal does not negate the possibility of a conviction for resisting an officer and a finding that Mr. Gate’s injuries “were the direct result of his having resisted the arrest,” a finding that might preclude §1983 liability….

Maybe now we understand why Sheriff Strain had this to add to Perlstein’s first report on the topic:

But Sheriff Strain sees the complaints from Gates quite differently, saying he is posturing in order to leverage damages from the civil rights suit.

In a written statement, Strain said, “This is an unfortunate example of a defense attorney attempting to use the media to sway public opinion and strong-arm the government into settling lawsuits.”

Sometimes the media is there to be used Sheriff, by friends and family……

Click the pic to get Judge Duval’s 4 page order and opinion.

2 thoughts on “In this episode of Magnum J.D.: Honest journalism or a friends and family promotion program at WWL TeeVee? (Part 3)”

  1. Would like to see a judge (particularly a federal judge) truly act like a judge and sanction participants for knowing deception. Come on, guys, how many of you have tried such BS in court, knowing that if you’re below a certain level on the bar’s totem pole that you will get burned. Sad enough that most judges get “righteous indignation” only when it comes to certain litigators, but frankly expected more out of a fed judge.

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