Fort Hood Suspect's Paralysis Could Slow Trial
Monday, 10 June 2013 10:15 | 
| 
| 
FORT HOOD, Texas -- The paralysis-related health problems of the Army psychologist charged with carrying out the deadly attack on Fort Hood could significantly slow the pace of his upcoming court-martial, including delays for stretch breaks and fewer daily hours for testimony. Maj. Nidal Hasan was left paralyzed from the abdomen down when police shot him during the Nov. 5, 2009, attack on the Texas Army post that left 13 people dead and nearly three dozen wounded. If convicted, he faces execution or life in prison. Jury selection was to begin last week, with testimony set to start in early July. But everything was pushed back again last week, at least briefly, during a hearing in which the Army judge, Col. Tara Osborn, granted Hasan's request to represent himself. Before she did, she warned him that doing so would be "a far more physically taxing enterprise than you can imagine." She's expected to rule Tuesday on his request for a three-month delay. While Hasan can maneuver his wheelchair, his doctor said Hasan cannot sit upright more than 12 hours a day without his concentration being affected. Inmates at Hasan's jail must wake up before dawn, so daily testimony would have to conclude by 5 p.m. at the latest, Dr. Prasad Lakshminarasimhiah told the judge last week.
To avoid muscle spasms, Hasan also must have 15- to 20-minute breaks for stretching every four hours. To avoid developing sores, he also must relieve pressure by lifting himself off his wheelchair for about a minute every half hour. It's unclear if the breaks for stretching and meals could be taken at the same time, and Fort Hood officials have not said if the trial's daily schedule will be set with Hasan's medical issues in mind. Hasan, who uses a catheter and adult diapers, refuses to take medication that would help regulate his digestive system, and he must eat at the same time each day to avoid accidents, Lakshminarasimhiah said. The jail serves breakfast at about 4:30 a.m., lunch about 10:30 a.m. and dinner at about 4:30 p.m., but the American-born Muslim told the judge that he fasts frequently and misses a meal on those days. Hasan is housed in the nearby Bell County Jail, which has a contract with Fort Hood to hold all of its defendants because the Army post does not have holding facilities. Hasan has lost weight since his arrest; his face is gaunter than his Army photo taken before the rampage. It's unclear if the weight loss is due to his fasting or a health problem. In September, Hasan was hospitalized a few days for undisclosed reasons. His former defense attorney, John Galligan, said he believes Hasan was hospitalized because of problems related to his incontinence. Hasan had health problems stemming from his catheter, including blood in his urine, about a year before he was hospitalized, Galligan said. Because he has "poor trunk support," Hasan has difficulty writing more than a few pages at a time, and nerve damage in his left hand makes typing more challenging, his doctor told the judge. When Osborn asked how he would write legal motions, a necessity for an attorney during a trial, Hasan answered, "I'll do the best I can." Medical experts not involved in Hasan's case say a paraplegic may be able to do the same tasks as others, but first must develop the strength and stamina over time. "If he has not been doing (these things), sitting up for 12 hours may be stretching it," said Dr. Rita Hamilton, director of spinal cord injury medicine for the Baylor Institute for Rehabilitation in Dallas. In addition to ruling on Hasan's request for a three-month trial delay on Tuesday, the judge is expected to discuss his "defense of others" strategy, which requires him to prove the shootings were necessary to protect others from imminent harm or death. Hasan told the judge that U.S. troops deploying from the Army post posed an immediate threat to Taliban leaders in Afghanistan. Witnesses said the day of the rampage a gunman wearing an Army combat uniform shouted "Allahu Akbar!" - "God is great!" in Arabic - and opened fire in a crowded medical building where deploying soldiers get vaccines and tests. Witnesses said the gunman fired rapidly, pausing only to reload, even shooting at some soldiers as they hid under desks and fled the building. Government documents show that in the years before the shooting, Hasan told some colleagues that the U.S. was at war with Islam. In some emails to a radical Muslim cleric, Hasan indicated that he supported terrorists and was intrigued with the idea of U.S. soldiers killing comrades in the name of Islam.
Air Force Colonel Guilty of Sexual ImpositionFriday, 07 June 2013 17:03 | | |
DAYTON -- A Dayton Municipal Court jury found an Air Force colonel guilty Thursday of a criminal misdemeanor charge of sexual imposition involving a woman at a festival in Carillon Park. Col. Mayan Shah, a 49-year-old research analyst at Air Force Materiel Command at Wright-Patterson Air Force Base, will be sentenced in four to six weeks, according to Dayton Municipal Court Judge Christopher D. Roberts, who presided over the case. The jury of six women and two men spent less than two hours deliberating before returning the verdict against the 23-year-military career officer who had an "unblemished" record, according to Richard S. Skelton, Shah's defense attorney. Shah did not speak with reporters as he left the courtroom Thursday. Skelton said his client had no intention to harm anyone nor give the military "a black eye." Shah testified he had been drinking ale during AleFest at the park and had no memory of the sexual misconduct courtroom witnesses accused him of at the event last August. He also testified he did not recall meeting any of the women or doing anything harmful to them.
An alleged victim testified she was standing in front of a large tree with two other friends in a parking lot at Carillon Park when a man they did not know approached them from behind while they posed for a photo. The three women worked at an area brew pub and had volunteered to work at the festival, they testified. Shah lifted one of the women's skirt, who yelled at him to stop, she testified. Shah then put his hand up a second woman's skirt and touched her in a sexually inappropriate way, the victim testified in court. "I was in shock," she said, in sometimes emotional testimony. "I just really felt violated." She said she was silent after what happened. "It's not something that you think is ever going to happen to you," she said. The second woman said she had slapped at Shah's arm. At least one of the women said he appeared intoxicated, but another said he did not. The women found Dayton police and reported what happened. A third woman who testified in court Thursday said Shah stared at her uncomfortably and slowly opened his hands between his arms while she sat in a grassy area in the park. "He was just standing there dazed and making a strange gesture," she said. She testified he approached her and asked to perform oral sex on her. "I was very scared," she said. "The hair on the back of my neck stood up and I said 'no, thank you.'" She did not report the incident to police, but told a brother and a friend who were with her at the festival what happened, she said. She later encountered Shah while the military officer was in uniform at Wright-Patterson where she was employed as a contractor. While she was standing in a hallway for several minutes, she said he approached her and asked her if she needed any help. She made a point to look at his uniform name tag. "I got the opportunity to see and hear the man's voice and I knew," she said. She told a co-worker, her brother and a friend what had happened, but again did not report the alleged festival incident to police, she said. Dayton Police Officer Johnny W. Watts said at the park after the festival Shah appeared to be "confused" and to have consumed alcohol, but police did not conduct a breathalyzer test. After police discovered his military identification, Dayton Police Officer Michelle A. Moser said officers consulted with a supervisor and decided to transport Shah to Wright-Patterson where he was turned over to the base's military police. Shah said he was transported to his apartment by a first sergeant within his unit. Appeal No. 12-4529 IN THE 3rd CIRCUIT COURTSaturday, 01 June 2013 15:44 | | |
BRUCE E. BALDINGER Plaintiff/Appellee v. ANTONIO FERRI, et al. Defendants, MATTEO PATISSO Defendant/Appellant, v. Plaintiff/Appellee. This is an appeal from the Trial Court’s denial of Defendant/Appellant Matteo Patisso’s (Patisso) motion to set aside the void default judgments entered September 9, 2010 against National Fraud Constable and July 12, 2012 against Patisso and related motions. The Complaint in this case was brought by Bruce E. Baldinger (Baldinger), an attorney and officer of the court, under diversity of citizenship, under the New Jersey Defamation law which only allows damages for “unprivileged” statements. The Complaint did not contain any specific examples of wrongdoing by quoting any specific statements of defamation or cite any specific acts of wrongdoing. Baldinger was relying upon undisclosed documents to support the Complaint. During the course of the proceedings, Baldinger lost his application for a temporary restraining order and a preliminary injunction. Baldinger obtained a default judgment against Patisso and National Fraud Constable, which was later vacated as to Patisso. Patisso was sanctioned under FRCP Rule 37 for not fully complying with Rule 26. The sanction was striking of his answer, counterclaim and an award of attorney’s fees to Baldinger. A default was entered against Patisso, without recognizing any merit of Baldinger’s claims or Patisso’s defenses. Baldinger moved for a default judgment with supporting certifications. These proved to be false, executed by convicted felons, subsequently withdrawn or the authors to have “disappeared” or become unable to be contacted. In his Certification, Baldinger disclosed that he knew that the “Litigation Privilege” protected Patisso’s actions about which he was complaining in this case. Baldinger testified before a Morris County New Jersey Grand Jury in an attempt to indict Patisso for violating a contempt order in a related case, which contempt order was ordered not enforceable by the judge in such case. In such testimony, Baldinger disclosed that he knew that the “evidence” in this case was protected by the “Litigation Privilege”. Baldinger concealed this information from the Trial Court. At all times Baldinger knew that his Complaint was a sham, that and documents supporting the Complaint were a protected by the “Litigation Privilege” and that he was committing a fraud upon the court. II. Statement of Jurisdiction A. The Basis for the District Court's Subject-Matter Jurisdiction, with Citations to Applicable Statutory Provisions and Stating Relevant Facts Establishing Jurisdiction. The U.S. District Court for the District of New Jersey had jurisdiction over this action pursuant to diversity of citizenship (28 U.S.C. § 1332) in that Baldinger was a resident of New Jersey, Ferri and Patisso were residents of New York and the claim was greater than $75,000.00 . B. The Basis for the Court of Appeals’ Jurisdiction, with Citations to Applicable Statutory Provisions and Stating Relevant Facts Establishing Jurisdiction. Matteo appeals Orders dated in this action dated December 4, 2012 (entered Dec. 6, 2012) as follows; (1) [Doc 248] – Order Denying Motion to Set Aside Void Default Judgments [227], (2) [Doc 249] – Order Denying Motion for Reconsideration [214], (3)[Doc 250] – Order for Further Proceedings on Motion for Contempt [211], and Disposing of Motion to Extend Time [Doc 226], and (4) [Doc 251] – Order for Post-Judgment Discovery This Court has jurisdiction pursuant to 28 U.S.C. § 1291. See Browder v. Director, Illinois Dep't of Corrections, 434 U.S. 257, 263 n.7 (1978) ("A timely appeal may be taken under Fed. R. App. Proc. 4(a) from a ruling on a Rule C. The Filing Dates Establishing the Timeliness of the Appeal. The Orders dated December 4, 2012 (entered Dec. 6, 2012) were as follows; [Doc 248] – Order Denying Motion to Set Aside Default Judgments [227], [Doc 249] – Order Denying Motion for Reconsideration [214], [Doc 250] – Order for Further Proceedings on Motion for Contempt [211], and Disposing of Motion to Extend Time [Doc 226], and [Doc 251] – Order for Post-Judgment Discovery. The Notice of Appeal was filed on December 18, 2012 [Dkt. 261]. D. The Appeal is from a Final Order or Judgment that Disposed of all Parties’ Claims. The appeal is from the Order Denying Motion to Set Aside Void Default Judgments [Doc 248] based upon fraud upon the court dated December 4, 2012, entered December 6, 2012. The order is final in that it disposed of all parties claims. III. Statement of Issues Presented for Review Each issue presented for review presents a legal question. The standard or scope of review is de novo. The thrust of the appeal is setting aside the void September 9, 2010 and July 12, 2012 default judgments for fraud upon the court. A district court's denial of a motion pursuant to Rule 60(b) generally is reviewed for abuse of discretion. Budget Blinds, Inc. v. White, 536 F.3d 244, 251, (3d Cir. 2008). A district court's denial of a motion brought under Rule 60(b)(4), however, is subject to plenary review. Page v. Schweiker, 786 F.2d 150, 152, (3d Cir. 1986). B. Issues to Be Decided
IV. Statement of Related Cases and Proceedings Related cases are: (1) Bruce Baldinger v. Tracey Cronin et al., USDC New Jersey Case No. 12-7044; (2) Matteo Patisso v. Bruce Baldinger, USCA for the Third Circuit Appeal No. 13-1381 (USDC New Jersey Case No. 12-7044) ; (3) Ferri v. Berkowitz, USDC New York Eastern District Case No. 2:09-cv-00182; Ferri v. Berkowitz, USCA for the Second Circuit Appeal No. 11-5240; (4) State vs. Patisso, Morris County Case No. 11-09-01051-1; and (5) Patisso vs. Baldinger, USDC New York Eastern District Case No. 11-1996 (F.D.C.P.A.) V. Statement of Case A. Nature of Case This is a case in which Baldinger committed a fraud upon the court by concealing the fact that all actions that he attributed to Patisso were protected by the “Litigation Privilege.” Southerland v. CityFriday, 31 May 2013 16:37 | | |
MICHAEL G. O’NEILL ATTORNEY AT LAW By ECF Hon. Brian M. Cogan United States District Judge United States Courthouse Cadman Plaza East Brooklyn, New York 11201 Re: Southerland v. City 99 CV 3329 Dear Judge Cogan: May 23, 2013 I represent the Southerland children (the “Children”). I am writing to appeal the May 17, 2013 order of the Magistrate Judge to the extent that it ruled that family court orders dated July 1, 1998, and June 13/14, 1997 are admissible at trial. To this extent, the May 17 order denied the Children's motion in limine, docket entry 255. Initially, the Children's position is that the Magistrate Judge is not empowered to determine motions in limine under 28 U.S.C. §636. 28 U.S.C. §636(b)(1)(A) permits the Court to refer “any pretrial matter” to Magistrate Judges, with certain exceptions not relevant here. It is our position that a motion in limine, particularly one that seeks a ruling on the exclusion of evidence at trial, is not a “pretrial matter.” See United States v. Flaherty, 668 F.2d 566, 586 (1st Cir. 1981)(“A pretrial matter within the magistrate's jurisdiction would thus seem to be a matter unconnected to issues litigated at trial and not defined with respect to the time of the trial.”) Cf. Stockler v. Garratt, 974 F.2d 730, 731 (6th Cir. 1992)( voir dire a “critical stage” in a civil trial.). It is hard to conceive of something more critical to a trial than the admission or exclusion of evidence. Furthermore, “[a]n in limine evidentiary ruling does not constitute a final ruling on admissibility,” Luce v. United States, 469 U.S. 38, 41-42, 105 S.Ct. 460, 463-64, 83 L.Ed.2d 443 (1984). The ruling is always subject to change as the trial unfolds. If a motion in limine were referable to a Magistrate Judge, however, it would cause tremendous confusion concerning the reviewability of the Magistrate Judge's rulings. Would the trial court's ability to change the Magistrate Judge's in limine rulings be subject to Rule 73? Would a litigant's right to review of those rulings on appeal be conditioned upon having first appealed to the District Judge? The Children do not know the answer to those questions, and they have filed the instant appeal out of an abundance of caution.
The Magistrate Judge's ruling that the July 1, 1998 order is admissible is plainly erroneous1 because that order is not relevant. Alternatively, if it is relevant, its probative value is greatly outweighed by its unfairly prejudicial effect. This is an action pursuant to 42 U.S.C. §1983 arising out of the removal of the Children from the Southerland home without a court order. Plaintiffs allege violations of the 4th and 14th amendments. At some point, defendant obtained a court order for the removal of the Children. Therefore, the Children acknowledge that defendant's violation of their constitutional rights ended when the New York Family Court authorized their removal. Although the initial Family Court order authorizing the removal of the Children has never been produced by defendant, the parties have proceeded on the assumption that the order was made on about June 13 or 14, 1997. At this point, it is an issue of fact as to when that order was made. The July 1, 1998 order is clearly not the initial Family Court order authorizing the removal of the Children. This is because in the decretal paragraph the order states “remands continued.” This is a reference to the remand of the Children to ACS for placement in foster homes. Therefore, the initial order authorizing the removal of the Children and their placement in foster care unquestionably occurred before July 1, 1998. The July 1, 1998 order does not help establish when that order was made, however, therefore it cannot fairly be said to be probative of that issue. If the order is being offered solely for the purpose of establishing that the initial order was before July 1, 1998, that is not a disputed fact. The Children could stipulate to it or the order should be redacted of everything but the “remands continued” language. The July 1, 1998 order is highly and unfairly prejudicial. It contains references to findings of sexual abuse and excessive corporal punishment by plaintiff Sonny Southerland. These charges arose after the initial removal of the Children and were not cited by defendant as a reason for the removal of the Children. The principal issue relating to the removal is whether defendant was confronted with exigent circumstances, and the subsequent charges of sex abuse and corporeal punishment, which were not know to defendant at the time, cannot possibly inform that issue. The unfair prejudice caused by this subject matter is plain. Thus, whatever probative value the July 1, 1998 order may be found to have on the issue of when the Family Court authorized the removal of the Children is vastly outweighed by the inflammatory nature of the references to sex abuse and corporal punishment. For this reason, the Children respectfully submit that the order should not be permitted into evidence at trial. Respectfully yours, 1 At the time of the ruling, neither that order nor the June 13/14, 1997 orders had been located by defendant and had not actually been submitted to the Court for review. Subsequently, defendant obtained a copy of the July 1, 1998 order and provided it to the plaintiffs. A copy of that order is attached hereto. As of today's date, the June 13/14 order has not been located. The Children do not know what that order states, and for that reason, they are unable either to assess its admissibility or intelligently appeal the Magistrate Judge's ruling that it is admissible, except to state that the Magistrate Judge erred by ruling on it before actually seeing it. Judge will reopen O.J. Simpson caseTuesday, 28 May 2013 12:16 | | |
LAS VEGAS -- A Nevada judge agreed Friday to reopen the armed robbery and kidnapping case against former football star O.J. Simpson to determine if the former football star was so badly represented by his lawyers that he should be freed from prison and get another trial. Simpson wasn't in a Las Vegas courtroom while Clark County District Court Judge Linda Marie Bell agreed to hear evidence and consider 18 of 22 questions cited in a May appeal by Simpson appeals lawyer Patricia Palm. The judge dismissed four other grounds on which the 65-year-old Simpson seeks release from state prison, where he is serving nine to 33 years.
The development could put Simpson on the witness stand for the first time. He stood trial in 2008 after authorities said he led five men, including two with guns, in a September 2007 confrontation with two sports memorabilia dealers and a middleman in a cramped room at a Las Vegas casino-hotel.
The development could put Simpson on the witness stand for the first time. He stood trial in 2008 after authorities said he led five men, including two with guns, in a September 2007 confrontation with two sports memorabilia dealers and a middleman in a cramped room at a Las Vegas casino-hotel. The judge also granted a waiver of attorney-client privilege on questions in dispute between Simpson and his trial lawyer, Yale Galanter. A key question will be whether Galanter had personal financial and business interests that posed a conflict that should have precluded him from handling Simpson's case. "Galanter was motivated by his own interests, which caused him to materially limit Simpson's legal representation," the appeal states. "Galanter remained on the case until rehearing was denied and denied Simpson the opportunity to raise this issue." Galanter declined comment Friday. Simpson trial prosecutor Chris Owens protested that Palm was rehashing issues long settled by Simpson's conviction, which was upheld by the Nevada Supreme Court. "She's just second-guessing what they did," Owens said. "It's hindsight." But Palm said Simpson wants a chance to show that Galanter was in Las Vegas and knew in advance about Simpson's plan to retrieve items from the memorabilia dealers that Simpson claimed were stolen from him after his 1995 acquittal in the Los Angeles slayings of his ex-wife, Nicole Brown Simpson, and her friend, Ronald Goldman. Galanter, a Miami lawyer who represented Simpson in other cases before the arrest in Las Vegas, denied during trial that he had anything to do with the ill-fated Las Vegas caper. "Judge, I tell you ... I wasn't there," Galanter said at the time. "I had nothing to do with it." Palm noted that Clark County District Judge Jackie Glass made no further inquiry. The latest appeal states that Galanter was paid more than $400,000 for Simpson's defense in the robbery-kidnapping case and another $125,000 for the June 2010 appeal before the state Supreme Court. The document says Galanter paid Gabriel Grasso, Simpson's trial lawyer from Las Vegas, just $5,000. Palm specifically exempts Grasso from allegations of ineffective counsel. The document cites accounts from Grasso and Simpson saying Grasso "was not made aware of the pre-incident advice, was not privy to private strategy discussions between Galanter and Simpson during trial, and was rebuked when he attempted to give advice without Galanter's approval." Simpson claims Galanter advised him that the plan to confront the two memorabilia dealers was legally permissible as long as no one trespassed on private property and no physical force was used. Simpson wanted to testify at trial, but "Galanter advised Simpson that he should not testify because the state could not prove its case," Palm's appeal says, "and Galanter prevented Grasso from fully advising Simpson to the contrary." Simpson also claims he never was advised that the Clark County district attorney offered a pretrial deal that could have gotten Simpson two to five years in prison for pleading guilty to robbery. Palm says Simpson would have taken the offer. Grasso and Malcolm LaVergne, a Las Vegas lawyer who handled Simpson's state Supreme Court appeal, also declined comment. Grasso is suing Galanter in federal court in Nevada, alleging breach of contract. A lawsuit by Galanter is pending in Miami alleging he was defamed by Grasso, LaVergne and Grasso's lawyer in the breach of contract case. |