Leah Sears
Wednesday, June 29, 2005
CBS 46 Atlanta - Sears Takes Oath, Makes History
CBS 46 Atlanta - Sears Takes Oath, Makes HistorySears Takes Oath, Makes History
Jun 28, 2005, 5:50 PM
ATLANTA (AP) -- Leah Sears, who survived an attempt by conservatives last year to block her re-election to the state Supreme Court, took the oath of office Tuesday as the court's chief justice, becoming the first woman to hold that position.
With U.S. Supreme Court Justice Clarence Thomas, a longtime friend, looking on, Sears vowed to "strive mightily to uphold the independence and integrity" of the judiciary.
According to the National Center for State Courts based in Williamsburg, Va., Sears is the first black woman ever to head the highest appeals court in any of the 50 states, although there have been women chief judges in the nonfederal appeals courts for the District of Columbia, and a Hispanic woman has been chief justice in New Mexico.
Sears will take office Friday.
She is the second black to head the Georgia Supreme Court.
Absent from the ceremonies, held in the chambers of the state House of Representatives, was Republican Gov. Sonny Perdue, who joined in the GOP effort last year to dump Sears from the court, arguing she did not represent the state's core values. She won the nonpartisan race for a six-year term with 62 percent of the vote.
Perdue's schedule showed he was in north Georgia for an open house at a new GBI crime lab, a visit to a Chamber of Commerce and a visit to a local industry.
Thomas, like Sears a native of the Savannah, Ga., area, called the event "a day when my pride runs deep as a human being, as a member of the judiciary and as a Georgian" and added, "I never thought that in my lifetime I would be able to witness a black woman as the chief justice of the state of Georgia's Supreme Court."
Thomas paid tribute to former ambassador and Atlanta Mayor Andrew Young, who delivered the oath of office to Sears, as a man whose work in the civil rights movement made it "possible for us to be here today in our various capacities and positions to witness this historic event."
He made only a passing reference to the political waiting game over whether there soon will be a vacancy on the nation's highest court.
"As we ended our term at our Supreme Court -- at your Supreme Court -- the winds of controversy swirled about the court's decisions and, unfortunately, about the imagined resignations. As I considered what was happening around our building, I thought about the calm civility of today's events. I thought of the wonderful times that we would have here today," he said.
Thomas also said he was confident Sears will "call them as you see them" and told her, "Those of us who are judges know that it is easy to judge when you already have your mind made up. It is hard to judge when you have to make your mind up."
In her acceptance speech, Sears pledged to continue her the strong push by her predecessor, Norman Fletcher, to implement a statewide indigent defense system to provide lawyers for poor people accused of crimes. She also said she hopes to focus on the plight of the family, noting that two-thirds of court filings now deal with domestic relations issues.
She ended with a call for Georgians to remember their civics lessons about why the judiciary is independent of the executive and legislative branches.
"We must resist all temptations to intimidate judges or to otherwise ask them to answer for the hard decisions that they are being required to make," she said.
"The founders of this great nation of ours intended the judicial branch of government to be a separate, independent, coequal branch of government that answers not to public opinion, polls or politicians, but only to the laws and the Constitutions of the state of Georgia and of the United States of America."
Jun 28, 2005, 5:50 PM
ATLANTA (AP) -- Leah Sears, who survived an attempt by conservatives last year to block her re-election to the state Supreme Court, took the oath of office Tuesday as the court's chief justice, becoming the first woman to hold that position.
With U.S. Supreme Court Justice Clarence Thomas, a longtime friend, looking on, Sears vowed to "strive mightily to uphold the independence and integrity" of the judiciary.
According to the National Center for State Courts based in Williamsburg, Va., Sears is the first black woman ever to head the highest appeals court in any of the 50 states, although there have been women chief judges in the nonfederal appeals courts for the District of Columbia, and a Hispanic woman has been chief justice in New Mexico.
Sears will take office Friday.
She is the second black to head the Georgia Supreme Court.
Absent from the ceremonies, held in the chambers of the state House of Representatives, was Republican Gov. Sonny Perdue, who joined in the GOP effort last year to dump Sears from the court, arguing she did not represent the state's core values. She won the nonpartisan race for a six-year term with 62 percent of the vote.
Perdue's schedule showed he was in north Georgia for an open house at a new GBI crime lab, a visit to a Chamber of Commerce and a visit to a local industry.
Thomas, like Sears a native of the Savannah, Ga., area, called the event "a day when my pride runs deep as a human being, as a member of the judiciary and as a Georgian" and added, "I never thought that in my lifetime I would be able to witness a black woman as the chief justice of the state of Georgia's Supreme Court."
Thomas paid tribute to former ambassador and Atlanta Mayor Andrew Young, who delivered the oath of office to Sears, as a man whose work in the civil rights movement made it "possible for us to be here today in our various capacities and positions to witness this historic event."
He made only a passing reference to the political waiting game over whether there soon will be a vacancy on the nation's highest court.
"As we ended our term at our Supreme Court -- at your Supreme Court -- the winds of controversy swirled about the court's decisions and, unfortunately, about the imagined resignations. As I considered what was happening around our building, I thought about the calm civility of today's events. I thought of the wonderful times that we would have here today," he said.
Thomas also said he was confident Sears will "call them as you see them" and told her, "Those of us who are judges know that it is easy to judge when you already have your mind made up. It is hard to judge when you have to make your mind up."
In her acceptance speech, Sears pledged to continue her the strong push by her predecessor, Norman Fletcher, to implement a statewide indigent defense system to provide lawyers for poor people accused of crimes. She also said she hopes to focus on the plight of the family, noting that two-thirds of court filings now deal with domestic relations issues.
She ended with a call for Georgians to remember their civics lessons about why the judiciary is independent of the executive and legislative branches.
"We must resist all temptations to intimidate judges or to otherwise ask them to answer for the hard decisions that they are being required to make," she said.
"The founders of this great nation of ours intended the judicial branch of government to be a separate, independent, coequal branch of government that answers not to public opinion, polls or politicians, but only to the laws and the Constitutions of the state of Georgia and of the United States of America."
Saturday, June 25, 2005
Test I Review PodCast
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Exam I Review PodCasts Summer Semester 2005
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Sunday, June 05, 2005
ARTHUR ANDERSEN LLP V. UNITED STATES
ARTHUR ANDERSEN LLP V. UNITED STATESSUPREME COURT OF THE UNITED STATES
ARTHUR ANDERSEN LLP v. UNITED STATES
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT
No. 04—368.Argued April 27, 2005–Decided May 31, 2005
As Enron Corporation’s financial difficulties became public, petitioner, Enron’s auditor, instructed its employees to destroy documents pursuant to its document retention policy. Petitioner was indicted under 18 U.S.C. § 1512(b)(2)(A) and (B), which make it a crime to “knowingly … corruptly persuad[e] another person … with intent to … cause” that person to “withhold” documents from, or “alter” documents for use in, an “official proceeding.” The jury returned a guilty verdict, and the Fifth Circuit affirmed, holding that the District Court’s jury instructions properly conveyed the meaning of “corruptly persuades” and “official proceeding” in §1512(b); that the jury need not find any consciousness of wrongdoing in order to convict; and that there was no reversible error.
Held: The jury instructions failed to convey properly the elements of a “corrup[t] persuas[ion]” conviction under §1512(b). Pp. 6—12.
(a) This Court’s traditional restraint in assessing federal criminal statutes’ reach, see, e.g., United States v. Aguilar, 515 U.S. 593, 600, is particularly appropriate here, where the act underlying the conviction–“persua[sion]”–is by itself innocuous. Even “persuad[ing]” a person “with intent to … cause” that person to “withhold” testimony or documents from the Government is not inherently malign. Under ordinary circumstances, it is not wrongful for a manager to instruct his employees to comply with a valid document retention policy, even though the policy, in part, is created to keep certain information from others, including the Government. Thus, §1512(b)’s “knowingly … corruptly persuades” phrase is key to what may or may not lawfully be done in the situation presented here. The Government suggests that “knowingly” does not modify “corruptly persuades,” but that is not how the statute most naturally reads. “[K]nowledge” and “knowingly” are normally associated with awareness, understanding, or consciousness, and “corrupt” and “corruptly” with wrongful, immoral, depraved, or evil. Joining these meanings together makes sense both linguistically and in the statutory scheme. Only persons conscious of wrongdoing can be said to “knowingly … corruptly persuad[e].” And limiting criminality to persuaders conscious of their wrongdoing sensibly allows §1512(b) to reach only those with the level of culpability usually required to impose criminal liability. See Aguilar, supra, at 602. Pp. 6—9.
(b) The jury instructions failed to convey the requisite consciousness of wrongdoing. Indeed, it is striking how little culpability the instructions required. For example, the jury was told that, even if petitioner honestly and sincerely believed its conduct was lawful, the jury could convict. The instructions also diluted the meaning of “corruptly” such that it covered innocent conduct. The District Court based its instruction on the Fifth Circuit Pattern Jury Instruction for §1503, which defined “corruptly” as “knowingly and dishonestly, with the specific intent to subvert or undermine the integrity” of a proceeding. However, the court agreed with the Government’s insistence on excluding “dishonestly” and adding the term “impede” to the phrase “subvert or undermine,” so the jury was told to convict if it found petitioner intended to “subvert, undermine, or impede” governmental factfinding by suggesting to its employees that they enforce the document retention policy. These changes were significant. “[D]ishonest[y]” was no longer necessary to a finding of guilt, and it was enough for petitioner to have simply “impede[d]” the Government’s factfinding ability. “Impede” has broader connotations than “subvert” or even “undermine,” and many of these connotations do not incorporate any “corrupt[ness]” at all. Under the dictionary definition of “impede,” anyone who innocently persuades another to withhold information from the Government “get[s] in the way of the progress of” the Government. With regard to such innocent conduct, the “corruptly” instructions did no limiting work whatsoever. The instructions also led the jury to believe that it did not have to find any nexus between the “persua[sion]” to destroy documents and any particular proceeding. In resisting any nexus element, the Government relies on §1512(e)(1), which states that an official proceeding “need not be pending or about to be instituted at the time of the offense.” It is, however, quite another thing to say a proceeding need not even be foreseen. A “knowingly … corrup[t] persaude[r]” cannot be someone who persuades others to shred documents under a document retention policy when he does not have in contemplation any particular official proceeding in which those documents might be material. Cf. Aguilar, supra, at 599—600. Pp. 9—12.
374 F.3d 281, reversed and remanded.
Rehnquist, C. J., delivered the opinion for a unanimous Court.
ARTHUR ANDERSEN LLP v. UNITED STATES
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT
No. 04—368.Argued April 27, 2005–Decided May 31, 2005
As Enron Corporation’s financial difficulties became public, petitioner, Enron’s auditor, instructed its employees to destroy documents pursuant to its document retention policy. Petitioner was indicted under 18 U.S.C. § 1512(b)(2)(A) and (B), which make it a crime to “knowingly … corruptly persuad[e] another person … with intent to … cause” that person to “withhold” documents from, or “alter” documents for use in, an “official proceeding.” The jury returned a guilty verdict, and the Fifth Circuit affirmed, holding that the District Court’s jury instructions properly conveyed the meaning of “corruptly persuades” and “official proceeding” in §1512(b); that the jury need not find any consciousness of wrongdoing in order to convict; and that there was no reversible error.
Held: The jury instructions failed to convey properly the elements of a “corrup[t] persuas[ion]” conviction under §1512(b). Pp. 6—12.
(a) This Court’s traditional restraint in assessing federal criminal statutes’ reach, see, e.g., United States v. Aguilar, 515 U.S. 593, 600, is particularly appropriate here, where the act underlying the conviction–“persua[sion]”–is by itself innocuous. Even “persuad[ing]” a person “with intent to … cause” that person to “withhold” testimony or documents from the Government is not inherently malign. Under ordinary circumstances, it is not wrongful for a manager to instruct his employees to comply with a valid document retention policy, even though the policy, in part, is created to keep certain information from others, including the Government. Thus, §1512(b)’s “knowingly … corruptly persuades” phrase is key to what may or may not lawfully be done in the situation presented here. The Government suggests that “knowingly” does not modify “corruptly persuades,” but that is not how the statute most naturally reads. “[K]nowledge” and “knowingly” are normally associated with awareness, understanding, or consciousness, and “corrupt” and “corruptly” with wrongful, immoral, depraved, or evil. Joining these meanings together makes sense both linguistically and in the statutory scheme. Only persons conscious of wrongdoing can be said to “knowingly … corruptly persuad[e].” And limiting criminality to persuaders conscious of their wrongdoing sensibly allows §1512(b) to reach only those with the level of culpability usually required to impose criminal liability. See Aguilar, supra, at 602. Pp. 6—9.
(b) The jury instructions failed to convey the requisite consciousness of wrongdoing. Indeed, it is striking how little culpability the instructions required. For example, the jury was told that, even if petitioner honestly and sincerely believed its conduct was lawful, the jury could convict. The instructions also diluted the meaning of “corruptly” such that it covered innocent conduct. The District Court based its instruction on the Fifth Circuit Pattern Jury Instruction for §1503, which defined “corruptly” as “knowingly and dishonestly, with the specific intent to subvert or undermine the integrity” of a proceeding. However, the court agreed with the Government’s insistence on excluding “dishonestly” and adding the term “impede” to the phrase “subvert or undermine,” so the jury was told to convict if it found petitioner intended to “subvert, undermine, or impede” governmental factfinding by suggesting to its employees that they enforce the document retention policy. These changes were significant. “[D]ishonest[y]” was no longer necessary to a finding of guilt, and it was enough for petitioner to have simply “impede[d]” the Government’s factfinding ability. “Impede” has broader connotations than “subvert” or even “undermine,” and many of these connotations do not incorporate any “corrupt[ness]” at all. Under the dictionary definition of “impede,” anyone who innocently persuades another to withhold information from the Government “get[s] in the way of the progress of” the Government. With regard to such innocent conduct, the “corruptly” instructions did no limiting work whatsoever. The instructions also led the jury to believe that it did not have to find any nexus between the “persua[sion]” to destroy documents and any particular proceeding. In resisting any nexus element, the Government relies on §1512(e)(1), which states that an official proceeding “need not be pending or about to be instituted at the time of the offense.” It is, however, quite another thing to say a proceeding need not even be foreseen. A “knowingly … corrup[t] persaude[r]” cannot be someone who persuades others to shred documents under a document retention policy when he does not have in contemplation any particular official proceeding in which those documents might be material. Cf. Aguilar, supra, at 599—600. Pp. 9—12.
374 F.3d 281, reversed and remanded.
Rehnquist, C. J., delivered the opinion for a unanimous Court.
Japan Today - News - U.S. Supreme Court overturns Arthur Andersen conviction - Japan's Leading International News Network
Japan Today - News - U.S. Supreme Court overturns Arthur Andersen conviction - Japan's Leading International News NetworkU.S. Supreme Court overturns Arthur Andersen conviction
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Wednesday, June 1, 2005 at 07:50 JST
WASHINGTON — The U.S. Supreme Court on Tuesday dealt a blow to the government's corporate fraud crackdown, overturning the criminal conviction of Arthur Andersen, the accounting giant put out of business for its role in the Enron scandal.
Chief Justice William Rehnquist wrote for a unanimous Supreme Court that the case against the former Big Five accounting firm was "flawed" because of the instructions given to the jury telling them what was needed for a conviction.
The chief justice said the jury instructions "simply failed to convey the requisite consciousness of wrongdoing. Indeed, it is striking how little culpability the instructions required."
The Chicago-based accounting firm was shut down after its 2002 conviction on criminal obstruction of justice charges for the destruction of documents for its client, Enron, as a regulatory probe was underway.
While the court ruling appeared to be based on technical factors, the opinion suggested the government would have to show a stronger finding of criminal intent for a similar conviction.
Andersen was convicted in June 2002 after a jury found that lawyers for the company "corruptly" persuaded employees to destroy documents that could have been relevant to a then looming investigation by the Securities and Exchange Commission.
Enron was Andersen's largest client and relied on the firm for auditing, accounting and consulting advice. Andersen also overlooked some of the accounting schemes that hid the energy firm's massive debts.
But Rehnquist wrote that the interpretation given to the jury for a guilty verdict was too broad and vague.
"Consider, for instance, a mother who suggests to her son that he invoke his right against compelled self-incrimination ... or a wife who persuades her husband not to disclose marital confidences," the justice wrote.
"It is, of course, not wrongful for a manager to instruct his employees to comply with a valid document retention policy under ordinary circumstances."
Prosecutors said they would review the ruling before deciding on whether to seek a new trial.
"The Department of Justice is disappointed in today's decision by the Supreme Court regarding jury instructions given in the case, but of course we respect the Court's decision," said acting Assistant Attorney General John Richter.
"We remain convinced that even the most powerful corporations have the responsibility of adhering to the rule of law."
Andersen, a partnership that still faces civil litigation in a number of cases, said it was "very pleased" with the ruling, "which acknowledges the fundamental injustice that has been done to Arthur Andersen and its former personnel and retirees."
The statement said the former audit firm appealed "not because we believed Arthur Andersen could be restored to its previous position, but because we had an obligation to set the record straight and clear the good name of the 28,000 innocent people who lost their jobs at the time of the indictment and tens of thousands of Andersen alumni, as well as to help secure a fair resolution of the civil litigation facing the firm."
Some experts doubted the government would retry the case, with Andersen out of business.
"It's unfortunate for Andersen, because they are out of business," said Texas lawyer Tom Ajamie, who represents people who lost money in Enron and other corporate fraud cases.
"But let's not forget that Andersen was the auditor for WorldCom, which collapsed, and for Sunbeam, which was found to be fraudulent and for many of the telecom companies that collapsed. And of course they were the auditors for Enron before its collapse ... the auditors are supposed to be the front line of protection" against fraud. (Wire reports)
Send to a friendPrint
Wednesday, June 1, 2005 at 07:50 JST
WASHINGTON — The U.S. Supreme Court on Tuesday dealt a blow to the government's corporate fraud crackdown, overturning the criminal conviction of Arthur Andersen, the accounting giant put out of business for its role in the Enron scandal.
Chief Justice William Rehnquist wrote for a unanimous Supreme Court that the case against the former Big Five accounting firm was "flawed" because of the instructions given to the jury telling them what was needed for a conviction.
The chief justice said the jury instructions "simply failed to convey the requisite consciousness of wrongdoing. Indeed, it is striking how little culpability the instructions required."
The Chicago-based accounting firm was shut down after its 2002 conviction on criminal obstruction of justice charges for the destruction of documents for its client, Enron, as a regulatory probe was underway.
While the court ruling appeared to be based on technical factors, the opinion suggested the government would have to show a stronger finding of criminal intent for a similar conviction.
Andersen was convicted in June 2002 after a jury found that lawyers for the company "corruptly" persuaded employees to destroy documents that could have been relevant to a then looming investigation by the Securities and Exchange Commission.
Enron was Andersen's largest client and relied on the firm for auditing, accounting and consulting advice. Andersen also overlooked some of the accounting schemes that hid the energy firm's massive debts.
But Rehnquist wrote that the interpretation given to the jury for a guilty verdict was too broad and vague.
"Consider, for instance, a mother who suggests to her son that he invoke his right against compelled self-incrimination ... or a wife who persuades her husband not to disclose marital confidences," the justice wrote.
"It is, of course, not wrongful for a manager to instruct his employees to comply with a valid document retention policy under ordinary circumstances."
Prosecutors said they would review the ruling before deciding on whether to seek a new trial.
"The Department of Justice is disappointed in today's decision by the Supreme Court regarding jury instructions given in the case, but of course we respect the Court's decision," said acting Assistant Attorney General John Richter.
"We remain convinced that even the most powerful corporations have the responsibility of adhering to the rule of law."
Andersen, a partnership that still faces civil litigation in a number of cases, said it was "very pleased" with the ruling, "which acknowledges the fundamental injustice that has been done to Arthur Andersen and its former personnel and retirees."
The statement said the former audit firm appealed "not because we believed Arthur Andersen could be restored to its previous position, but because we had an obligation to set the record straight and clear the good name of the 28,000 innocent people who lost their jobs at the time of the indictment and tens of thousands of Andersen alumni, as well as to help secure a fair resolution of the civil litigation facing the firm."
Some experts doubted the government would retry the case, with Andersen out of business.
"It's unfortunate for Andersen, because they are out of business," said Texas lawyer Tom Ajamie, who represents people who lost money in Enron and other corporate fraud cases.
"But let's not forget that Andersen was the auditor for WorldCom, which collapsed, and for Sunbeam, which was found to be fraudulent and for many of the telecom companies that collapsed. And of course they were the auditors for Enron before its collapse ... the auditors are supposed to be the front line of protection" against fraud. (Wire reports)
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