A Guilty Plea in the Sherrie Phillips Saga

From the Andalusia Star News and al.com, Evergreen attorney John Brock entered a plea of guilty to third degree perjury for his role.  Here (John Brock plea documents) is the plea paperwork.  Although I don’t agree with what he did, I don’t see how Attorney Brock can be guilty of perjury under Section 13A-10-103 because a requirement of perjury is that the person be under oath.  If all he did was file paperwork, he shouldn’t have had to file an affidavit or any other type of oath.  However, since this is a misdemeanor plea, his lawyer might just be taking the best deal available.  Also, a felony plea or conviction would likely be an automatic loss of law license so perhaps this is the smartest move for him under the circumstances.  Since stuff disappears from the al.com website pretty often, here is Connie Baggett’s story from al.com:

Evergreen judge pleads guilty to perjury; accused of mishandling $3.2 million estate

EVERGREEN — Municipal Judge John Brock could lose his law license after he pleaded guilty to perjury Thursday in connection with the mishandling of a $3.2 million estate case.

“A complaint will go before our disciplinary board,” said Tony McLain, general counsel for the Alabama State Bar Association. “If this is deemed a serious crime, the attorney (Brock) could face suspension or disbarment.”

McLain said the board typically finds any crime involving dishonesty or misrepresentation a “serious crime,” and the stiffest punishment would likely result.

Brock, 62, runs a private practice in Evergreen and also serves as the city’s municipal court judge. Brock pleaded guilty to third-degree perjury for knowingly filing misleading documents in the estate of a Conecuh County man.

The state attorney general’s office handled the prosecution, and retired Monroe County District Judge William Causey presided in the case. Causey was appointed when local judges stepped aside, including District Judge Jeff Brock, a nephew of the accused.

John Brock was ordered to pay a $3,000 fine, court costs and $500 to the Alabama Crime Victims Fund. He also received six months in jail, although that portion of the sentence was suspended.

The misdemeanor guilty plea stems from a tangled estate case that also led to the conviction of former Covington County Probate Judge Sherrie Phillips, 58, in November.

Evergreen Mayor Larry Fluker could not be reached for comment Friday, nor could John Brock or Phillips.

According to court records, Cary Douglas Piper, 52, of Castleberry died in January 2007, leaving an estate worth $3.2 million.

His friend, Mary Drew Sullivan, also of Castleberry, hired John Brock to act as her attorney in an effort to be named the administrator of Piper’s estate.

Sullivan said that Piper had no known relatives.

According to court records, Brock had Sullivan move accounts to Region’s Bank in Andalusia and then filed a petition to be named the estate’s administrator by Phillips, a longtime friend of Brock’s.

Agents from the attorney general’s office filed charges against Phillips in June 2008, charging the probate judge with taking $1.8 million from the estate and opening a bank account in her own name.

Agents said she spent more than a half million dollars of the money paying off personal debts, buying cars, remodeling her home and loaning money to relatives.

She also took a $405,000 fee for administrative costs that the courts ruled was “egregious and impermissible.”

Brock took a similar fee. Both have repaid the money as ordered by the courts.

The scheme unraveled months ago, when six first cousins of Piper’s came forward, inquiring about his estate.

Phillips was convicted of theft in November and sentenced to 10 years in prison. She remains free on bail during appeal, but the conviction was affirmed by the Alabama Supreme Court in July.

Sullivan filed a civil lawsuit against Brock and Phillips in June.

“How do you know the witness?” “He shot me.”

Ah, voir dire.  Nothing else like it.  From the Panama City News Herald (hat tip to JuryImpact):

Prosecutor Greg Wilson was asking if anyone on the panel knew Lionel Crawford when a woman raised her hand. He’d gone through a list of potential witnesses and wanted to know if familiarity with a witness would bias a juror for or against their testimony.

“How do you know Mr. Crawford?” Wilson asked.

“He shot me in 2004,” the woman replied.

“He shot you?” Wilson asked. After a long pause, he said, “Would it be safe to say you’d have a problem judging his credibility in this case?”

Motion to Compel Defense Counsel to Wear Appropriate Shoes at Trial

Back in the day, Montgomery defense lawyer James Anderson (a great lawyer and a great guy) used to wear old button down collars to achieve that “simple poor lawyer” look.  While he beat your brains out.  Now I read (by way of Above the Law) about a Motion to Compel a defense lawyer from wearing shoes with holes in them to achieve a “frugal” or “simple lawyer” look.

Read the story here.

But shouldn’t the motion be a Motion in Limine?  (You know, “Sustaining objection to such XYZ would not cure the effect of such prejudice.  Instead it would reinforce the impact of such prejudicial matter to the jury.”)

Apparently the Judge rejected the Motion, allowing the guy to keep his old brogans.  So If James wants to get those old buttondowns out of the closet he probably can do so as well.  (But he should be Attorney General of Alabama, another story for another day.)

DUIs in Alabama are Invalid

There is a reasonable suspicion everyone ever found guilty by the use of a DUI testing machine (the Drager Alcotest 7110) has a cause of action against Drager and the State of Alabama.  Also, the State of Alabama has a terrific case against Drager for selling the State these crappy machines.  Here is a picture of the Drager 7110:

Photo Credit: Jay Hare, Dothan Eagle

To my knowledge, no DUI lawyer in Alabama had gotten ahold of the Drager source code for the 7110.  Drager always argues in court their source code is proprietary and revealing the source code would damage their business.  Quoting Bruce Schneier, “They were right about the second part, of course, because it turned out that the code was terrible.”

These machines are simply not reliable.  DUI lawyers and experts, criminal lawyers and even myself have known this for years.  What we did not know was that the software running the Drager was so flawed.

In New Jersey, where some enterprising lawyers got ahold of the source code through criminal discovery and had it tested, 24 major defects were found in the code.

From the New Jersey testing lab’s report:

It is clear that the Alcotest software would not pass development standards and testing for the U.S. Government, the U.S. Military, the Federal Aviation Administration or the Federal Drug Administration, as well as commercial standards used in devices for public safety.

Catastrophic Error Detection Is Disabled – The code has disabled capabilities in the processor that detect catastrophic problems when instructions are executed with regard to invalid and/or illegal data values or with corrupted instructions. Turning off these safeguards means as these conditions are encountered, the machine produces unpredictable results.

This thing looks like a train wreck to me.  Another Brown v. State, 565 So.2d 585 (Ala.1990) may appear here.  Brown was a class action filed on behalf of anyone in the State of Alabama who had been convicted of traffic offenses based upon improperly verified Uniform Traffic Ticket and Complaints, (“UTTCs”).  Back in the day, when you got a traffic ticket (a UTTC), it was common practice for the police officer giving the ticket to not verify (or swear to the truth of the ticket) before a judicial officer.  The problem with this was a lack of verification meant the judicial courts did not have subject matter jurisdiction over the criminal case instigated by the ticket and therefore the ticket was void.

A bad Drager source code could also mean that all Alabama DUI convictions based on this horrible machine could be void.

Meanwhile, a good DUI lawyer can use this flaw to attack the machine’s findings in court.  Round here, Manish Patel and Chris Sledge are two of the best.

I don’t like having drunks on the highway, I have represented too many victims of such drivers.  But fair is fair.  Alabama needs to go to blood testing or some smart guy needs to invent a reliable machine that will accurately test for DUI in Alabama.  Again read the New Jersey lab report as they point out that the Drager might also let a drunk driver go free:

An incorrect breath test could lead to accidents and possible loss of life, because the device might not detect a person who is under the influence, and that person would be allowed to drive. The possibility also exists that a person not under the influence could be wrongly accused and/or convicted.

If the Alabama State Troopers are using the Drager as part of their new vans they take to roadblocks, this thing is so inaccurate it might let a drunk beat the test and go out and kill somebody.  Legislature take note:  Blood testing.

Links! and more. . . Links!

From Law.com, lotta stuff of interest:

Recession equals lawyer suicides;

Law professors urge Obama to name non-judge to Supreme Court (Like maybe a law professor?); and

How not to destroy old client files.

Arizona v. Gant, Supremes Uphold 4th Amendment

Down here in Dixie, we sometimes wonder if the judges know about the 4th Amendment (you know, the one about the police have to have a warrant to search your stuff).  Usually, round here, if the cops stop you, they can do whatever they want in the way of search because no judge (at least in Covington County) is ever going to throw out wrongfully seized evidence.

Hopefully we can get our judges to look at Arizona v. Gant which holds that the so-called “automobile exception” is a thing of the past.  From the Supremes:

. . . searches conducted outside the judicial process, without prior approval by judge or magistrate, are per se unreasonable under the Fourth Amendment—subject only to a few specifically established and well-delineated exceptions.” Katz v. United States, 389 U. S. 347, 357 (1967) (footnote omitted). Among the exceptions to the warrant requirement is a search incident to a lawful arrest. See Weeks v. United States, 232 U. S. 383, 392 (1914). The exception derives from interests in officer safety and evidence preservation that are typically implicated in arrest situations. See United States v. Robinson, 414 U. S. 218, 230–234 (1973); Chimel, 395 U. S., at 763.

* * *

Despite the textual and evidentiary support for the Arizona Supreme Court’s reading of Belton, our opinion has been widely understood to allow a vehicle search incident to the arrest of a recent occupant even if there isno possibility the arrestee could gain access to the vehicle at the time of the search. This reading may be attributable to Justice Brennan’s dissent in Belton, in which he characterized the Court’s holding as resting on the “fiction. . . that the interior of a car is always within the immediate control of an arrestee who has recently been in the car.” 453 U. S., at 466.

* * *

Under this broad reading of Belton, a vehicle search would be authorized incident to every arrest of a recent occupant notwithstanding that in most cases the vehicle’s passenger compartment will not be within the arrestee’s reach at the time of the search.

* * *

Because police could not reasonably have believed either that Gant could have accessed his car at the time of the search or that evidence of the offense for which he was arrested might have been found therein, the search in this case was unreasonable.

Man Protesting in Dothan Outside Cochran, Cherry, Givens and Smith

From the Dothan Eagle:

By Jim Cook

Published: December 8, 2008

A man protesting outside the Cochran, Cherry, Givens and Smith law firm in downtown Dothan on Monday says his ultimate goal is to be on “Oprah.”

“The reason I want to get on ‘Oprah’ is because when Mr. Cochran was alive he was on her show and he was talking about how he started this firm for the little man,” Mobile resident Clemzo Gildersleeve said. “…In my opinion, the Cochran firm don’t even deserve to be in business.”

Gildersleeve spent several hours Monday morning outside the law firm, protesting what he described as unsatisfactory performance by a lawyer for the firm’s Mobile office on an insurance lawsuit.

In 2004, Gildersleeve’s daughter was rear-ended in an automobile accident. Gildersleeve sought compensation from the other driver’s insurer, Allstate, and was offered a payment he felt was unacceptable. Gildersleeve hired Cochran, Cherry, Givens and Smith attorney Jerome Carter and sued Allstate.

Allstate later offered a settlement in the case, and Gildersleeve says his attorney asked him to accept it. Gildersleeve said he felt the settlement was too low, and wanted to take the matter to court. Carter withdrew from the case and filed a lien against any future settlement Gildersleeve might receive to pay for his services.

On Friday, Allstate settled Gildersleeve’s case for an amount above the original settlement offer, but part of the settlement was diverted to the law firm to satisfy the lien. That deduction led to Gildersleeve’s protest.

Gildersleeve’s protest drew honks from some passersby and one even stopped to ask Gildersleeve if he knew that Johnnie Cochran was dead.

Sam Cherry, Cochran, Cherry, Givens and Smith senior partner, said Carter acted within the bounds of professional conduct in the case and that seeking liens against judgments in cases where the attorney withdraws is standard practice.

Cherry said he doubts Gildersleeve will fulfill his dream of getting on Oprah Winfrey’s television program, but that the man had a Constitutional right to say his peace on Monday.

“The right to express yourself on a sidewalk about a matter of concern to you is your right,” Cherry said. “If you go down to the Dothan Eagle and apply for a job, and they didn’t give you a job, you could go outside with a placard saying that the Dothan Eagle isn’t fair to people applying for jobs. And he’s got the right to do that.”

Interesting article, but I bet the problem with Mr. Gildersleeve is the tortfeasor (the person causing the wreck) did not have enough money to cover the injuries to his daughter and to cover the property damage.  Allstate is known for having low limits on their policies and my guess is that is the problem here.

If  Mr. Gildersleeve’s daughter had, say $10,000.00 in medical bills, a low limit $25,000.00 policy would mean all she gets (assuming Allstate paid the limits of liability) is $6,666.00.

Formula: $25,000.00 x one-third attorney fee= $8,333.33.  So the final “in her pocket number would be: $25,000.00 minus $8,333.33 minus the medical bills of $10,000.00 would leave her $6,666.00, assuming there were no expenses.

Additionally, we now have “gap insurance” offered when you purchase a new car.  The reason we now have this “gap” insurance is because it is incredibly difficult to get an insurance company to pay fair value, including depreciation, for a wrecked car.  So the “gap” insurance fills the “gap” and if your car is wrecked by a third person at least you won’t be underwater on the load.

The bottom line is it is not the lawyers that are to blame, it is insurance practices and the very unfair personal injury calculus that is inherent in all car wreck cases.  The best explanation comes from the movie A Civil Action, written by Steven Zaillian, from the book by Jonathan Harr:

Jan Schlichtmann: It’s like this. A dead plaintiff is rarely worth as much as a living, severely maimed plaintiff. However, if it’s a long agonizing death as opposed to a quick drowning or car wreck, the value can rise considerably. A dead adult in his 20’s is generally worth less than one who is middle-aged, a dead woman less than a dead man, a single adult less than one who is married, black less than white, poor less than rich. The perfect victim is a while male professional, 40 years old, at the height of his earning power, struck down in his prime. And the most imperfect? Well, in the calculus of personal injury law, a dead child is worth the least of all…

By the way, Mr. Gildersleeve hints in the video he might have engaged in a bit of boxing with the lawyer.  This is generally a good reason to withdraw from a client’s case.

Also, at the end, he says Cochran, Cherry, Givens and Smith “shouldn’t be in business.”  I have to disagree.  In Dothan, Sam Cherry and Keith Givens have been fighting the good fight for injured Alabamians since 1983 as a firm.  They are good lawyers and do good for their clients.  I don’t agree with everything they do as far as marketing, but they are very skilled lawyers and the firm as a whole are likewise the best around.

Bonus points opportunity:  Read the comments section to the story.  It drifts away from Cochran, Cherry and this story pretty quick to cutting on attorney Rick Hollingsworth in Enterprise.  (Another pretty good guy.)

Rick is unfairly commented on and the rest is a train wreck.  Enjoy the stupidity.