SLABBED (not exactly) Daily – August 5, 2010

On a slow news day – or a day when it’s not so hot – any one of these stories could take an entire post to cover.  However, today is neither and without going further, here is news you can use:

Making a diagnosis of “improper influence” requires a scalpel, not a sledgehammer. Not only is it unrealistic to think we can eradicate all judicial biases, instincts, leanings or interests, however termed, but it is also unwise. We want our judges to live in the real world, so that they can bring their life experiences and common sense to the table when deciding cases. Judges must remain “partial” to some influences, therefore, like the case law, and controlling statutes, and perhaps even basic standards of decency and morality, too. As The New York Times recently cited, former Chief Justice William Rehnquist’s view on recusal was that if a justice’s mind was “a complete tabula rasa” in relevant respects, it “would be evidence of lack of qualification, not lack of bias.”

While I hope you’ll follow all the links, but by all means, read this opinion post on recusal from

  • Staying with matters of public policy for the moment, let’s talk unemployment rates. Online news is filled with stories like this about the uptick in unemployment rates – and all appear to have been written by someone clueless about the issue.

Here’s a clue – anyone reporting on the increase should start by defining “seasonal”. Continue reading “SLABBED (not exactly) Daily – August 5, 2010”

Meet Judge Helen "Ginger" Berrigan. Another Louisiana Eastern District Judge with a recusal problem.

Judge Berrigan also has problems getting insurance cases right. In Berrigan’s case, she has never met an insurance company or murderer she failed to like. In this video clip, Professor Carl Bernofsky explains how he was Berriganed and how she refused to recuse herself despite a clear-cut conflict of interest.  Carl is the moderator of Tulane Link and until Slabbed has been a lone voice in the wilderness on problems in the Louisiana Eastern District Courts.


Obama to appeal "who dat' Judge" Feldman's ruling – POTUS v Katrina's don't-know-wind-from-water 5th Circuit "who dem" BP-stock-owning judges

“We will immediately appeal to the 5th circuit the president strongly believes as the Department of Interior and the Department of Justice argued yesterday that continuing to drill at these depths without knowing what happened does not make any sense and… potentially puts the safety of those on the rigs and the environment in the Gulf at a danger that the president does not believe we can afford right now,” said spokesman Robert Gibbs during Tuesday’s briefing.

Y’all come on down, Mr. President,  and sample some of Judge Edith’s home cooking.


The chief judge is one Edith Jones, who received international notoriety a few years back when she ruled that a fellow named Calvin Burdine, convicted of murder and sentenced to death row, received a fair trial even though his court appointed lawyer slept through a good bit of the trial. A sleeping attorney didn’t’ seem to bother Jones, who wrote in upholding the conviction that “we cannot determine whether the defense counsel slept during a critical stage of Burdine’s trial.” So, according to Jones, it’s OK to nap a bit during a trial if you are representing a defendant who could be (and in this case was) given the death penalty. Just pick and choose when you doze off.

Jones was nominated by President Reagan and joined the Court in 1985.  SLABBED examined the “absurdity of Judge Jones’ reasoning” a year ago; so no one should be surprised to see BP stock listed in her financial disclosure report (shown below). Continue reading “Obama to appeal "who dat' Judge" Feldman's ruling – POTUS v Katrina's don't-know-wind-from-water 5th Circuit "who dem" BP-stock-owning judges”

Fifth Circuit's dip stick decision not to decide Comer v Murphy Oil

I would be remiss if I didn’t yield this space to someone who said all that needs to be said better than any post I could compose – and with that I yield to TBA and A miscarriage of justice:

Carefully timed for late Friday release on Memorial Day Weekend is the Fifth Circuit’s unbelievable decision in Comer v. Murphy Oil, the “global warming caused Katrina” case that, rather surprisingly, obtained a panel decision reversing the district court’s motion to dismiss. We had previously noted the case’s going en banc, with only 9 judges hearing the case and 7 recused.

Well, since that time, another judge has found it necessary to recuse, depriving the en banc court of a quorum to hear the case. What’s the result? The appeal is dismissed!

In sum, a court without a quorum cannot conduct judicial business. This court has no quorum. This court declares that because it has no quorum it cannot conduct judicial business with respect to this appeal. This court, lacking a quorum, certainly has no authority to disregard or to rewrite the established rules of this court. There is no rule that gives this court authority to reinstate the panel opinion, which has been vacated. Consequently, there is no opinion or judgment in this case upon which any mandate may issue. 5TH CIR. R. 41.3.

Because neither this en banc court, nor the panel, can conduct further judicial business in this appeal, the Clerk is directed to dismiss the appeal.

The rules provided for vacating the panel decision merely pursuant to the forthcoming en banc decision. The result, of course, is to dismiss an appeal that’s been decided on the merits for appellants, through no fault of their own, not on the merits, but on a strained and suspicious hyperliteralistic application of the court’s own rules.

If the SCOTUS doesn’t grant cert here and reinstate the panel’s decision — which, remember, merely allows the case to proceed to discovery — then it’s going to be very difficult to avoid the conclusion that Americans can’t sue Big Oil and win. And that the Fifth Circuit has some judges who are unclear on the concept of “justice.” (emphasis added) Continue reading “Fifth Circuit's dip stick decision not to decide Comer v Murphy Oil”

“Who Dat” Judge Martin Feldman – the 5th Circuit’s Opinion in Versai v Clarendon

Sop is fluent in Louisiana while I, on the other hand, know little more than I’ve learned from college football and Hurricane Katrina about the State – barely enough to recognize the name  Martin Feldman when I read the Fifth Circuit’s February 19, 2009 Opinion in Versai Management v Clarendon America Insurance Company et al.

Feldman is a Federal District Judge in the Eastern District of Louisiana with a biography so contrary to the Fifth’s reversal in part of his decisions in this care that I felt the need to know “who dat” this judge who made these decisions.  Is he the reportedly “Intelligent, Pompous, egotistical, pushy, arrogant, unfair, no empathy for poor people and workers who come before him, his heart is with business” or the scholar:

“… a visiting lecturer at Cambridge University, and an Honorary Master of the Bench of the Inner Temple Inn of Court, London. Judge Feldman is a member of the Advisory Committee of the American Association for the Advancement of Science…”[who]… “was a lecturer in Constitutional Law and war powers at Syracuse University’s Maxwell School of Public Administration…Princeton University’s Distinguished Visiting Jurist in the James Madison Program of American Ideals and Institutions…and has been a guest lecturer at Amherst College in constitutional interpretation and the philosophy of the Rule of Law”?

Whether he is both or either, Judge Feldman has been a familiar name to the members of the Firth Circuit since at least 1984  – the year the Fifth Circuit reversed his Decision in Louisiana World Exposition Inc v. R Logue because his “order did not dispose of all the matters before the District Court”. What matters more than many times Feldman’s decisions have been appealed since that first year following his appointment to the federal bench is what those decisions that have been reversed suggest about Judge Feldman. Continue reading ““Who Dat” Judge Martin Feldman – the 5th Circuit’s Opinion in Versai v Clarendon”

Judge Vance denies Defendants Motion for Interlocutory Appeal and Branch qui tam rings in the new with Motion to amend complaint adding Allstate and Pilot Catastrophe Service

Defendants contend that a specific question of law controls this matter: “whether a ‘sleuth’ like Branch, without first-hand involvement in an alleged fraud, can qualify as an ‘original source’ by providing additional examples of a publicly disclosed, alleged fraudulent scheme.”

…The Court need not resolve this question because district courts do not certify “questions” for the court of appeals upon the grant of a § 1292(b) motion.

The eleven-page Order and Reasons s is classic Vance – another pick ’em up, put ’em down tutorial on qui tam law!

Defendants’ primary argument is this: the Supreme Court, in Rockwell International Corp. v. United States, 549 U.S. 457, 470- 71 (2007), abrogated the Fifth Circuit’s “original source”decision in United States ex rel. Laird v. Lockheed Martin Eng’g & Sci. Servs. Co., 336 F.3d 346, 356 (5th Cir. 2003)…Defendants contend that the Court’s Order “diverges from Fried based on pre-Rockwell, out-of-circuit decisions,” R. Doc. 237 at 1, and that there is substantial ground for difference of opinion as to whether a relator who initiates an investigation after an alleged fraud can be considered an original source…

Initially, although defendants make repeated use of the term “pre-Rockwell,” they point to nothing in Rockwell itself that makes it a watershed decision as to the specific issue they identify. Continue reading “Judge Vance denies Defendants Motion for Interlocutory Appeal and Branch qui tam rings in the new with Motion to amend complaint adding Allstate and Pilot Catastrophe Service”

A mind is like a parachute. If it doesn’t open, you’re f#@%*d!

If you’ve wondered why there are differing perspectives about the factual basis of litigation, find the cord to your parachute and open your mind to Harvard Law’s Project on Law and Mind Sciences and situationism.

Situationism is premised on the social scientific insight that the naïve psychology—that is, the highly simplified, affirming, and widely held model for understanding human thinking and behavior—on which our laws and institutions are based is largely wrong. Situationists (including critical realists, behavioral realists, and related neo-realists) seek first to establish a view of the human animal that is as realistic as possible before turning to legal theory or policy. To do so, situationists rely on the insights of scientific disciplines devoted to understanding how humans make sense of their world—including social psychology, social cognition, cognitive neuroscience, and related disciplines…

SLABBED reflects a situationist perspective and even touches on the subject in posts such as:

Recommended holiday (half-time) reading includes the blog post, On the Ethical Obligations of Lawyers: Are We Snakes? Are We Supposed to Be?, and the following readings from Continue reading “A mind is like a parachute. If it doesn’t open, you’re f#@%*d!”

Y’all reports Scruggs denies bribing Judge DeLaughter in Response to Patterson’s cross-claim in Wilson v Scruggs

SLABBED covered the cross claim filed on behalf of Scruggs’ co-defendant Steve Patterson in Eastland stands behind Motion to Dismiss – Greer files cross-claim for Patterson in Wilson v Scruggs.  Alan Lange at Y’all Politics has a post up on the Response from Dick Scruggs: Scruggs denies Steve Patterson, also denies bribing Judge DeLaughter .  I have no doubt Lange and I share a common commitment to justice and factual reporting even when we hang our hats on different facts, their meaning, and context.  However, there’s no disputing these facts about the Scruggs’ response:

In…[the cross-claim]…Patterson’s attorney writes:

4. Plaintiff’s Complaint alleges that Scruggs is guilty of bribing Judge DeLaughter, and defrauding the plaintiff, by and through Peters, and that those actions caused a favorable result in the Wilson case. Patterson had no involvement at all in those circumstances other than introducing Scruggs to the local counsel, Peters. Patterson received no funds, was not compensated in any way, shape or form and is therefore guilty of no active negligence, but at most, passive negligence (which,he denies), and was completely unaware of the possibility that Scruggs would allegedly perform any, criminal act of any sort to bring potential liability upon himself and others.

However Scruggs responds:

4. The allegations contained in the first sentence of paragraph 4 are denied. Scruggs lacks information sufficient to admit or deny the remaining allegations contained in paragraph 4. Continue reading “Y’all reports Scruggs denies bribing Judge DeLaughter in Response to Patterson’s cross-claim in Wilson v Scruggs”

The Kings of Tort: Did Chapter Four (Paul Minor) provide honest service to the book’s readers? (Part 1 of 2)

For me, on Minor, the different jury instructions given on the same charges doesn’t sit well…

Comment to White Knight takes issue with author of Kings of Tort

The question posed in the title is not rhetorical but, instead, one for readers to decide – preferably after reading the information in this post. As Sop’s comment suggests, the hallmark of Minor’s second trial was same charges with different jury instructions.

The district court required quid pro quo for the same bribery charges in Mr. Minor’s first trial in 2005. As described by the April 17,2008 House Judiciary Committee Majority Staff Report for Chairman Conyers, in the first trial “Mr. Minor was acquitted of most charges while the jury hung on others. On retrial. after the presiding judge revised his evidentiary rulings and relieved the prosecution of the need to prove certain elements of the alleged [bribery] crime, Mr. Minor was convicted of what have been described as ‘vague’ charges based on alleged efforts to obtain an unfair advantage from the two lower court judges, again through loan guarantees, and again despite the fact that Mississippi law allows such guarantees.” Continue reading “The Kings of Tort: Did Chapter Four (Paul Minor) provide honest service to the book’s readers? (Part 1 of 2)”

Honest Services (part 2) – a Supremely interesting commentary

“ The prosecutor has more power over life, liberty, and reputation than any other person in America.”

United States Attorney General and Supreme Court Jus tice Robert H. Jackson

Former Mississippi Supreme Court Justice Oliver Diaz provided a supremely interesting commentary on his  “up close and personal” experience  with the honest services law and federal prosecutors, USA v Minor et al,  in a review of the Kings of Torts published in the  Northside Sun, a popular Jackson weekly .

We are left to wonder why the court records were not sufficient to support the author’s positions and opinions? Why do they resort to unsworn statements and unproven allegations?

Specifically, why did the authors feel compelled to state as fact that I lived in a condominium owned by Paul Minor free of charge when prosecutors offered no proof of this because they discovered that it was not true? Why did they describe an event involving Paul Minor at a hotel bar, when court testimony clearly showed the event did not occur? Continue reading “Honest Services (part 2) – a Supremely interesting commentary”