Lawyers seek removal of judge from their cases
Areas of Focus | 2008/03/06 02:55
Two African-American attorneys have asked that criminal District Judge Elizabeth Berry be disqualified from hearing the cases of 18 defendants they represent because, they say, she is prejudiced against African-Americans.

Berry strongly denied the assertion, saying that an e-mail message attributed to her is a fake.

The recusal motions were filed Tuesday by Fort Worth attorneys Glynis McGinty and Lesa Pamplin. The motion states that Berry directed a racial epithet at a court reporter in an e-mail she sent to her court reporter, Judy Miller.

Berry, who was in Mexico on Tuesday, flew back to Fort Worth on Wednesday to respond to the assertions.

"The reason I came back from out of the country was that I'm the steward of this court," Berry said. "The fact that someone is publicly alleging that this court is run by a racist judge is not something I'm going to stand for.

"I absolutely did not author the e-mail, dictate the e-mail, type the e-mail or send the e-mail. It's incendiary, racist, offensive language that I do not use and did not use or put in this document."

Miller said she didn't receive the e-mail, and Berry didn't write it.

"To prove authenticity is beyond our expertise," she said. "But if it was sent from her computer, Judge Berry didn't send it."

Berry has been judge of Criminal District Court No. 3 since 2003.

Pamplin contends that the e-mail, purportedly directed at court reporter Reginald "Reggie" Butler, began circulating around the courthouse last week, nearly 10 months after it supposedly was written. Pamplin said another lawyer showed her a copy of the e-mail but she does not know its original source.

Butler said Tuesday that he didn't want to comment.

On Tuesday, McGinty and Pamplin issued a news release, which they said was drafted by a number of Tarrant County's African-American defense attorneys. The two-page release cited the offensive e-mail and called for Berry's immediate resignation and Miller's immediate termination.

"It's kind of unsettling to know that in 2008 these kind of e-mails are being sent on a government computer -- and she's a judge," Pamplin said.

Attorneys who know Berry say they find it hard to believe that the veteran attorney and judge is racist.

"I've known Elizabeth as a district attorney, a defense attorney, a judge and a friend, and I can't imagine Elizabeth using that kind of language or sentiment," criminal defense attorney Jack Strickland said. "Something about this deal doesn't smell right. I wish people would give her the benefit of the doubt before they jump to conclusions."

Berry said she learned of the e-mail last month when she was notified of a confidential inquiry. She would not say whether the state Commission on Judicial Ethics made the inquiry. Commission officials also would not comment. But a Tarrant County Sheriff's Department report says a commission investigator contacted the department in December.

The judge questioned why McGinty and Pamplin would publicize the e-mail months after it purportedly was written.

"Don't you find it extremely coincidental and suspicious that over nine months later when I happen to be out of the country and unable to respond that these allegations are made public for the first time?" she said.

Leon Reed Jr., vice-president of the Tarrant County Black Bar Association, said the accusations should be investigated but that Berry should have been given the opportunity to respond before the issue was publicized.

"We're dealing with a very serious allegation that could have extensive legal ramifications," Reed said. "The first thing we should do is sit down with the judge. If she denies writing the e-mail, at a minimum an investigation should take place to determine if the e-mail was generated from her computer."

Berry said the e-mail itself raises questions about its author. For one thing, she said, she uses block letters to sign her e-mails, not the cursive signature contained in the racist e-mail.

And the date of the e-mail -- Monday, May 2, 2007 -- is incorrect, Berry said. A calendar shows that May 2 fell on a Wednesday last year.

Pamplin said she never intended to suggest that the e-mail is authentic. Her intent, she said, was to seek an independent investigation of what she considers a serious allegation.

"This is a collective action by a lot of attorneys who have concerns about this," Pamplin said. "That's why we said 'allegedly' an e-mail was sent. We're not saying it was definitive. We're saying it needs to be investigated."

Berry said it would be difficult to prove whether she did or did not send the e-mail because the county computer automatically deletes employee e-mails every 90 days.

But she said she would join with anyone, including her accusers, who wants a forensic examination of her computer to determine whether the e-mail originated there.

"If there's a way to show that the e-mail was sent or not sent, created or not created, I'd like to see that done," Berry said.

Pamplin agreed.

"If she welcomes an investigation, we welcome an investigation," Pamplin said.



Appeals Court Weighs Teen's Web Speech
Areas of Focus | 2008/03/06 02:54
A teen who used vulgar slang in an Internet blog to complain about school administrators shouldn't have been punished by the school, her lawyer told a federal appeals court.

But a lawyer for the Burlington, Conn., school told the 2nd U.S. Circuit Court of Appeals on Tuesday that administrators should be allowed to act if such comments are made on the Web.

Avery Doninger, 17, claims officials at Lewis S. Mills High School violated her free speech rights when they barred her from serving on the student council because of what she wrote from her home computer.

In her Internet journal, Doninger said officials were canceling the school's annual Jamfest, which is similar to a battle of the bands contest. The event, which she helped coordinate, was rescheduled.

According to the lawsuit, she wrote: "`Jamfest' is canceled due to douchebags in central office," and also referred to an administrator who was "pissed off."

After discovering the blog entry, school officials refused to allow Doninger to run for re-election as class secretary. Doninger won anyway with write-in votes, but was not allowed to serve.

A lower federal court had supported the school. U.S. District Judge Mark Kravitz, denying Doninger's request for an injunction, said he believed she could be punished for writing in a blog because the blog addressed school issues and was likely to be read by other students.

Her lawyer, Jon L. Schoenhorn, told the appeals court Tuesday that what students write on the Internet should not give schools more cause to regulate off-campus speech.

"It's just a bigger soapbox," he said.

But Thomas R. Gerarde, an attorney for school officials, argued that the Internet has completely changed the way students communicate.

The three-judge panel of the appeals court did not issue a ruling after the arguments.

In 1969, the Supreme Court said schools could ban expression if they can show that not doing so would interfere with schoolwork or discipline. In a later ruling, it allowed officials to bar "vulgar and lewd" speech if it would undermine the school's educational mission. But both cases involved events that occurred on school property or during a school activity.



Leaders split over choice of judge
Areas of Focus | 2008/03/03 05:00
Roanoke Valley legislators have only one week left in the General Assembly session to appoint a new judge in the General District Court that serves Roanoke, Roanoke County and Salem.

The Roanoke Valley delegation, which consists of three Republicans and two Democrats in the Senate and House of Delegates, is split on who should fill the vacancy left in the 23rd Judicial District by Roanoke County General District Court Judge Julian Raney's retirement.

If legislators can't come to a consensus, the circuit judges in the district will appoint someone to fill the vacancy until at least next year.

The two candidates up for consideration, Salem City Councilman Chris Clemens and Roanoke Commonwealth's Attorney Donald Caldwell, will visit the Capitol today for interviews.

In recent years, Republicans held majorities in both chambers of the General Assembly and therefore controlled appointment of judges. That would have hurt Caldwell, an active Democrat, had it been the case again this year.

But Democrats won a slim majority in the Senate last November.

"The House has its prerogative, the Senate has its prerogative, and we've got to come up with a match," said Sen. John Edwards, D-Roanoke.

Asked if he expects the Roanoke Valley delegation to agree on a candidate, Del. Morgan Griffith, R-Salem, said: "I don't know the answer to that."

The Roanoke Bar Association and Salem/Roanoke Bar Association have each endorsed Clemens for the job. But that's only one factor that the legislators take into consideration when making a decision.

Edwards, like the other four legislators in the delegation, is complimentary of both candidates, saying that either would make a fine judge. He has so far declined to name which he favors. Instead, he said, he'd take that up with the rest of the delegation after Monday's interviews.

Griffith said he is supporting Clemens for the judgeship, but emphasized that he has no problems with Caldwell.

"The reason is he [Clemens] has been endorsed by the two local bar associations," said Griffith, the House majority leader and member of the House Courts of Justice Committee.

Meanwhile, Del. Onzlee Ware, D-Roanoke, said he's supporting Caldwell because he has more experience than Clemens and because he lives in Roanoke.

"If you look at the last several judges, all were able but not one lived in the city of Roanoke," Ware said. "Roanoke deserves a judge who lives in the city."

Del. William Fralin, R-Roanoke, said he won't decide between the candidates until after their interviews today and added, "I think both of those candidates are well qualified."

But Fralin, who also sits on the House Courts of Justice Committee, said bar association endorsements would carry weight as he sizes up the candidates. All Roanoke Valley judgeships since 2001 have been filled by candidates who received a bar association endorsement.

"The bar association is very important because these are the folks who are very familiar with the people seeking the post," Fralin said.

Ware places less value on the bar endorsements. He said many of its members are corporate lawyers unfamiliar with the court for which they're endorsing a candidate.

"More than half the members who vote in the bar don't practice in General District Court," Ware said.

Freshman Sen. Ralph Smith, R-Botetourt County -- the only non-lawyer in the Roanoke Valley delegation -- is outright skeptical of bar endorsements. He said that because the lawyers in the bar will be practicing before the judge who's appointed, the endorsements represent conflicts of interest for the bars' members.

"If I'm going to serve in your courtroom for the next 20 years, the human nature is, 'How are you going to react to me?' " Smith said. "You can't take that out of it, and that's where I see a conflict of interest. I don't know that it takes an attorney's knowledge to find out who would be a good, fair judge."

That also extends, Smith said, to the 45 General Assembly members who are lawyers by profession.

"I understand it's about 32 percent of the members of the General Assembly who are attorneys, and that's a conflict of interest," Smith said. "In fact, everybody involved in this situation is an attorney except me. I'm not lobbying to say I should pick the judges, but there should be another mechanism" for appointing judges.



New Jersey - Still no need to redefine marriage
Areas of Focus | 2008/02/29 05:05

New Jersey Governor Corzine should not legalize same-sex marriage.

AS EXPECTED from a panel stacked with same-sex activists, the Civil Union Commission issued a report last week saying that its members believe civil unions are a failure.

What is their conclusion based on? Seven substantive complaints -- from among the 2,400 same-sex couples who have entered into civil unions in New Jersey. They complain about the failure of New Jersey employers based out of state to provide benefits to partners in civil unions. Those companies say that the federal Employment Retirement Income Security Act, which regulates the provision of benefits to employees, does not require them to provide expensive health benefits to same-sex couples.

Activists claim there are more complaints, including insinuations that hospitals have denied visitation – an accusation that an official from the New Jersey Hospital Association insists is absolutely false. Other additional claims are unofficial and unsubstantiated. The majority of complaints cited by the activists do not deal with rights being denied, but rather gripes about how same-sex couples have to explain themselves to other people.

The commission also says that employers in Massachusetts are more likely than those in New Jersey to voluntarily provide health benefits to same-sex couples simply because the law gives their unions the title marriage. This contention is completely anecdotal, as noted in an article last week on the New Jersey State Bar Association Web site.



Suspect accused of running fake raffle
Areas of Focus | 2008/02/29 03:14
A call to police from a Troy sports bar led to the arrest of a Royal Oak man believed to be involved in an area-wide fraudulent sports raffle sales scheme.

A bar patron apparently realized the man selling raffle tickets purportedly for his 8-year-old son's hockey team might be the same person the Michigan Amateur Hockey Association (MAHA) issued a warning about on its Web site earlier this month.

Officers took Robert Eugene Yontz, 34, into custody shortly after 8 p.m. Saturday at Field of Dreams sports bar, 1090 Rochester Road, Troy.

Yontz was arraigned Monday for larceny by false pretenses second or subsequent offense, a five-year felony. Yontz is held in lieu of a $25,000 cash bond pending a pre-exam conference March 10 in Troy's 52-4 District Court.

Yontz had 60 raffle ticket stubs with the names of 32 people, including two persons who purchased the $5 tickets at Field of Dreams that night, said Troy Police Lt. Gerry Scherlinck . Yontz had $83 on him when arrested, Scherlinck said.

The alleged fraudulent raffle tickets contained a Web site for MAHA which on Feb. 4 warned about a person selling fraudulent tickets claiming they benefit MAHA.

MAHA attorney Steven Stapleton said the scam has been ongoing since December.



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