Daily Archives: August 14, 2021

Bill Cosby may have been released from prison in June, but the 84-year-old is still the target of a civil lawsuit in Los Angeles. In 2014, Judy Huth sued Cosby and claimed he sexually assaulted her at the Playboy Mansion in 1974, when she was 15 years old. At the time, Cosby refused to answer questions for the deposition and the case soon took a backseat to Andrea Constands criminal case against him, which ended in his conviction.

Now that Pennsylvanias highest court has overturned Cosbys conviction, the comedian has been given another opportunity to testify in Huths civil suit. However, this week Cosbys lawyers addressed a judge for the first time since his prison release and said he will again decline to speak on the sexual assault allegations, exercising his Fifth Amendment right.

[Cosby] does not agree that merely because the Pennsylvania Supreme Court vacated [his] criminal conviction for a single offense, allegedly arising from an incident that occurred in 2004, [he] no longer enjoys a Fifth Amendment right to remain silent, Cosbys attorney Michael Freedman told the judge ahead of his Friday hearing (Aug. 13).

This is particularly so where numerous states have no criminal statutes of limitations for sex crimes, he continued. It is well-settled that the Fifth Amendment protects both the innocent and the guilty. Having already been forced to face a malicious criminal prosecution that resulted in an unlawful three-year incarceration, [Cosby] is not confident that such a risk does not still exist in this jurisdiction and others.

Freedman added, Indeed, prior to a stay being entered in this case, LAPD claimed that the Huth matter is an open criminal investigation. Thus, [Cosby] anticipates that if he is forced to sit for a deposition, he will exercise his Fifth Amendment guarantees absent a court order ruling that he has no Fifth Amendment right in this jurisdiction or any others.

A California law previously extended the statute of limitations involving claims of childhood sexual assault. During his hearing today, Freedman said Cosby plans to lodge a number of constitutional challenges and urge the court to consider lifting the stay on Huths suit against him.

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Bill Cosby to invoke Fifth Amendment in civil lawsuit - REVOLT TV

Bill Cosby is out of prison but not clear of trouble. For the first time since June, when he was released from a Pennsylvania jail, his lawyers have addressed a judge. Specifically, a judge serving the Los Angeles Superior Court, where Cosby currently faces a civil suit brought by Judy Huth, who alleges being sexually assaulted by him at the Playboy Mansion in 1974.

The Huth case, originally filed in 2014, has been on hold for years. At one point, Cosby was ordered to sit for a deposition, and he did, but refused to answer questions. The litigation then took a back seat to Cosbys criminal problems. Now that Cosbys conviction for assaulting Andrea Constand has been overturned by the Pennsylvanias highest court because of an old non-prosecution agreement in that jurisdiction, Cosby is free, at least in theory, to testify in civil cases. (Recall, for example, how O.J. Simpson had to take the witness stand in a wrongful death suit he eventually lost after he beat a criminal case for the murders of his ex-wife and Ron Goldman.)

But although he may be contemplating going back on tour, Cosby, through his attorney Michael Freedman, tells a Los Angeles judge that he will continue to resist speaking about his alleged assaults.

Defendant does not agree that merely because the Pennsylvania Supreme Court vacated Defendants criminal conviction for a single offense, allegedly arising from an incident that occurred in 2004, Defendant no longer enjoys a Fifth Amendment right to remain silent, states a status conference report made public Wednesday. This is particularly so where numerous states have no criminal statutes of limitations for sex crimes. It is well-settled that the Fifth Amendment protects both the innocent and the guilty. Having already been forced to face a malicious criminal prosecution that resulted in an unlawful three-year incarceration, Defendant is not confident that such a risk does not still exist in this jurisdiction and others.

Cosbys lawyer even points to the potential for prosecution in Los Angeles.

Indeed, prior to a stay being entered in this case, LAPD claimed that the Huth matter is an open criminal investigation, continues Freedman. Thus, Defendant anticipates that if he is forced to sit for a deposition, he will exercise his Fifth Amendment guarantees absent a court order ruling that he has no Fifth Amendment right in this jurisdiction or any others.

(A Cosby spokesperson did later note to The Hollywood Reporter that theres documentation how that LAPD investigation had concluded.)

The status report also highlights another coming development in this case involving Huth, who is represented by Gloria Allred.

At the beginning of 2020, California civil law was amended to allow victims of childhood sex abuse to sue over very old events. Specifically, the amended law allows such a plaintiff to sue upon becoming an adult within five years of discovering a psychological injury caused by the sexual assault.

Huth says she was 15 years old at the time of the alleged assault (Cosby is disputing her age) so this amended law opens the door to a potentially viable case. Cosbys attorney appears to agree that the look-back provision, which largely abolished the statute of limitations, applies in cases like the Huth suit, not litigated to finality.

But in the face of this change in law (plus others, as in New York, which has similarly gotten rid of the statute of limitations for childhood sexual assaults), Cosby wishes to make a constitutional challenge. A judge is told that neither the California Supreme Court nor the United States Supreme Court has addressed the constitutionality of such an amended law presumably whether it violates due process. With respect to a nearly five-decade-old occurrence, Cosbys attorney anticipates making the argument its legally out of bounds.

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Bill Cosby to Invoke Fifth Amendment Due to Fear of New Prosecution - Hollywood Reporter

Real Housewives of Beverly Hills star Erika Jaynes husband Thomas Girardi has officially invoked his fifth amendment right not to testify.

According to court documents obtained by Radar, the once-respected lawyer notified a federal court judge he had no intention of talking about millions that were meant for orphans and widows.

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Source: Northern District of Illinois: US District Court

He signed a declaration reading, I, Thomas Girardi hereby state under penalty of perjury that, if called as a witness in pending contempt proceedings I will follow the advice of my counsel and invoke my constitutional rights to remain silent.

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Girardi, before he had his law license suspended, represented family members who lost their loved ones in a plane crash. He hashed out a multi-million-dollar settlement, but his former clients claim they never received the full amount.

In court, Girardi and Jayne are accused of embezzling the money to help pay for their lavish lifestyle.

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The judge found Jaynes husband in contempt of court along with two partners at his firm. One of the men included his former bookkeeper David Lira.

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Recently, Girardis lawyer said his client planned to invoke his Fifth Amendment right against self-incrimination. The attorney pointed out 82-year-old Girardi was dealing with health issues and couldnt testify. She claimed, "He does not recall one of my conversations with him between conversations.

For his part, Lira claims he has no idea where the millions went. The fight to find the money continues. As Radar previously reported, earlier this year, Girardi was forced into Chapter 7 bankruptcy by his creditors.

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The court appointed a trustee to take over control of Girardis finances. He is currently trying to sell off assets to pay off his debts. He placed his Pasadena mansion up for sale and is selling off his prized possessions at auction.

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The Bravo star has publicly denied knowing anything about her husbands finances. She has yet to respond in court. Last year, as Girardis world was falling apart Jayne slapped him with divorce papers after 21 years of marriage.

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She is demanding spousal support but the case was put on hold due to the bankruptcy.

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'RHOBH' Star Erika Jayne's Husband Thomas Girardi Pleads The Fifth Over Questions About Orphan's Missing Money - Radar Online

Thomas L. Knapp| Guest Columnist

As the U.S. Centers for Disease Control moves to extend a federal eviction moratorium that (including its original CARES Act version) has now been in place for most of 18 months and that President Joe Biden himself concedes is "not likely to pass constitutional muster," most of the public rhetoric and advocacy boils down to "what about the tenants?"

That's understandable. Nobody at least nobody who's ever faced the prospect of homelessness and has any heart at all wants to see tenants kicked to the curb with nowhere to go, especially tenants who, through no fault of their own, have been pushed into a financial corner by nearly a year-and-a-half of lockdowns, business closures, and other fallout from the COVID-19 pandemic.

Much less often asked, though, is the question "what about the landlords?" When that question does come up (and it's coming up in the courts again as the National Apartment Association and other landlord groups sue for compensation pursuant to the Fifth Amendment's "takings" clause) one can almost literally hear the world's smallest violin tuning up in the background.

I'm aware of, and reasonably well versed in, the centuries-long arguments over the ethics of rent and of property in land. I don't aim to settle those arguments here.

More: End of eviction moratorium likely will put pressure on Brevard renters

Given the long history of land ownership and home/apartment rental in the United States, though, it seems to me that the plaintiffs have a good case, and that the American "landlord class" deserves a far more sympathetic ear than it's had lately.

I've been a renter for most of my adult life, including times when I could have swung a down payment and qualified for a mortgage to own instead of rent. Renting made more sense for various reasons, including my somewhat itinerant lifestyle following jobs, following love, etc.

Most of my landlords haven't been giant corporations with deep pockets. They've been regular people who worked hard, put their money into real estate down payments, and tried to keep that real estate occupied by paying tenants until the property was paid off and might perhaps turn a profit or be sold. And even the giant corporations with deep pockets are providing a service to willing customers. They're not charities and shouldn't be expected to act like charities.

More: Torres: Lousy jobs for lousy pay + outrageous housing costs = employee shortage

During the eviction moratoria, landlords haven't shed themselves of responsibility for keeping the water running, keeping the heat and air conditioning in working order, and making mortgage payments. They're still paying, or trying to pay, those costs. But they're not getting the rent that tenants freely agreed to pay before moving in.

If you're looking for a solution that pleases and protects everyone, I'm sorry to say you're reading the wrong column. I have no such solution to offer.

However, given that the government's solution to every COVID-19 problem so far has been to kick the printing presses into high gear and mail out checks, it seems to me that America's landlords have a better case than most in suing for checks of their own.

Thomas L.Knapp(Twitter: @thomaslknapp) is director and senior news analyst at the William Lloyd Garrison Center for Libertarian Advocacy Journalism (thegarrisoncenter.org). He lives and works in north central Florida.

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In Defense of landlords during the eviction moratorium | Opinion - Florida Today

Defenders of the often-overlooked Third Amendment to the U.S. Constitution are springing into action to defeat what is arguably the biggest threat to their cause in decades: the federal government's eviction moratorium.

Last week, the Centers for Disease Control and Prevention (CDC) issued a ban on evicting non-paying tenants living in counties with a substantial number of COVID-19 cases provided that those tenants sign financial hardship declarations.

In response, the Alabama Association of Realtors and the Georgia Association of Realtorswho already sued over the previous, nearly identical CDC eviction ban that expired on July 31filed an emergency petition last week in the U.S. District Court for the District of Columbia asking that the new moratorium be set aside.

Rallying to the side of the realtors was the normally idle Third Amendment Lawyers Association (ALA), which filed an amicus brief in the case on Friday.

"Ordinarily, the eviction process would play out in the courts. The CDC eviction moratorium prevents this," wrote the ALA. "Plaintiffs are being forced to house individuals, i.e. quarter them, without their consent. Given the size of the population at issue, some of these tenants are bound to be soldiers."

That, the group argues, violates the Third Amendment's express prohibition on quartering soldiers in private homes in times of peace without the consent of the owner.

This is a novel claim, to say the least. The Third Amendment, as ALA notes in its brief, is the "runt piglet" of the Bill of Rights and is rarely invoked in normal litigation.

That's certainly true for the legal challenges to the CDC's eviction moratorium. Plaintiffs have generally stuck to more common legal arguments, including that the agency's order goes beyond the powers given to the CDC by Congress, and/or that it violates the Fifth Amendment's prohibition on taking property without just compensation.

Despite the creativity of ALA's argument, there's reason to doubt that the CDC's eviction order will fall on Third Amendment grounds.

"My first-glance interpretation of 'quartering' is that it refers to the government placing a soldier in some house, not some house being rented, in his private capacity, by someone who happens to be a soldier," Eugene Volokh, a law professor at the University of California, Los Angeles, wrote at The Volokh Conspiracy. "So if my tenant happens to be a soldier, and he forfeits my initial consent by failing to pay his rent (and thus breaching the lease agreement), his continuing to live in my 'house' doesn't involve his 'be[ing] quartered.'"

Whether or not ALA's argument sways any judges, its brief is a reminder of just how many different ways the Constitution protects the rights of property owners. Among those protections is the right to exclude people from your property, be they delinquent renters or unwelcome redcoats.

Link:
Is the CDC's Eviction Moratorium a Third Amendment Violation? - Reason

Listen to SocioEconomic Research Prof. Oren M. Levin-Waldmans discussion of his most recent essay, Violating the Constitution Does Not Protect Our Democracy this Wednesday, August 11, 2021. He can be heard every second Wednesday morning from 10-11am EST on the Westchester On the Level broadcast. The broadcast is heard Live or On Demand by clicking onto the hyperlink noted http://tobtr.com/s/11980446. Please note that the hyperlink changes every second week and is specific to the essay discussed. Listeners are welcome to share their inquiry with respect to the topic of the subject discussed. The call-in number to the broadcast is 1-347-205-9201.

NEWARK, NJ August 10, 2021 It is ironic that those who claim that our democracy is threatened, first by the election of Donald Trump and then the events of January 6th 2021, appear to support violating the constitutional separation of powers when it suits them. If not ironic, then it is sheer hypocrisy. Lets state this up front, in a time of crisis, like the current pandemic, the government should provide renters with the means to pay their rent. If a moratorium on evictions is to be passed by the legislative branch, then landlords need to be compensated.

To simply extend the moratorium through executive order not only violates the separation of powers, but it violates the contract clause of the Constitution, and Fifth Amendments taking clause. First, lets talk about the separation of powers. Article one of the constitution vests authority to spend money with Congress. If this moratorium involves the expenditure of money, either to renters or landlords, then the president on his own has no authority to spend it. Rather Congress has to appropriate money, which means that Congress has to act.

Article I, section ten of the Constitution, otherwise known as the contract clause, says that no state may pass a law impairing the obligation of contracts. A law could be a statute or an administrative rule. From this, we could infer, on the assumption that leases between tenants and landlords is a contract, states would have no real authority to pass their own moratoria on evictions. Arguably since it does not mention the federal government, then Congress could act? And yet, since tenant leases are state and local matters, it most likely was never contemplated that the federal government would have reason to interfere with contracts.

It is really the Fifth Amendment that is challenged here. It says: nor shall private property be taken for public use without just compensation. This is the final line of a larger clause which deals with the concept of due process. If through executive order the moratorium on evictions is being extended, that might be tantamount to a taking without just compensation. In effect, it is confiscation of private property. Progressives no doubt justify this with the claim that landlords are wealthy and can afford it. After all, isnt enabling out of work tenants the right to remain in their apartments without paying rent a compelling public purpose?

The laws of eminent domain posit that property may be seized for a public purpose, so long as the owners receive just compensation. In the absence of funds to landlords to cover rents that are in the arrears, there has been no just compensation. Moreover, no procedures have been put in place to allow landlords to challenge this moratorium which is nothing more than an administrative rule from the CDC.

The reason why the takings clause is part of the larger amendment dealing with due process is that the procedures that need to be in place allowing property owners to challenge such actions is to protect individuals from the arbitrary exercise of power and authority. Otherwise, in the absence of due process, the state could simply throw somebody in jail without charges or trial. In other words, it would be a return to Henry VIIIs use of the laws of attainder. If he wanted somebodys property because he coveted it, he simply seized it. If you had a problem with that, why not have a secret trial prior to your arrest? The reason for this provision is to make it sufficiently costly to exercise the laws of eminent domain that the sovereign will have to be absolutely certain it is for a public purpose.

Granted, renters may need relief, but so too do landlords. Not all are wealthy billionaires. Rather many may be individuals and/or families who made an investment whereby the rent was needed to cover mortgage and maintenance. The calculation, in addition to appreciation of value, might have been that in retirement after mortgages were paid off, rental income would subsidize retirement savings and Social Security. Under the current moratorium, owners of property cannot even sell their property because their tenants effectively have the right to stay.

A free market economy relies on private property to function, and property cannot be protected if contracts can be interfered with. Why is property so central to a free market economy? Because one cannot sell in the marketplace what one does not own. Without property, the market falls apart.

Lets start from the premise that the Constitution is about protecting individual rights. Because the separation of powers requires consensus to get anything done, the system is so robust that it protects rights by default because it can only act in incremental steps. Then again, what is a right? A right is a zone of protection society places around an interest. Basic human agency allows for us to pursue our interests as an expression of that agency. In a rights based society, government is obligated to respect that agency. A right that is elevated to a property right is effectively receiving an extra layer of protection. Again, the purpose of the Fifth Amendment is to protect against the exercise of arbitrary power and authority.

The extension of the moratorium on evictions may be arbitrary because it bypassed the legislative process. Because laws of eminent domain typically trigger procedures to challenge the decision, due process has effectively been given. The same cannot be said about this moratorium, especially given that it lacks transparency. Progressive members of Congress like executive actions for the same reason they want the Supreme Court to protect a womans right to choose. They want to be absolved of any responsibility for actually doing their jobs of legislating properly. Of course, there is nothing new here; it has been going on for years. But if they want to be absolved of responsibility, then how can they complain about threats to our democracy? Democracy requires adherence to procedure. The threat to our democracy is an overreaching executive branch that hides under the cover of a pandemic.

There is still a problem here. First, the Supreme Court has already said the president has no authority to extend the moratorium. Second, and more importantly, even if the pandemic rises to the level of national emergency, only Congress has the power to declare a national emergency; not the president.

In some ways, this issue is similar to DACA which Trump ended and attempted to send back to Congress where it rightfully belongs. Emergency legislation to prevent people from being thrown into the streets also belongs with Congress. The truth is that both issues are hot potatoes for Congress to seriously address. But please dont insult our intelligence by telling us how concerned you are about the integrity of our democracy.

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Author of Restoring the Middle Class Through Wage Policy: Arguments for a Middle Class

https://www.palgrave.com/gp/book/9783319744476;

Understanding Public Policy in the United.States.

https://tophat.com/marketplace/social-science/political-science/textbooks/understanding-public-policy-in-the-united-states-oren-levin-waldman/3473

The Minimum Wage: A Reference Handbook

https://www.abc-clio.com/ABC-CLIOCorporate/SearchResults.aspx?type=a

Wage Policy, Income Distribution and Democratic Theory

.http://www.routledge.com/books/details/9780415779715/#reviews

The Case of the Minimum Wage: Competing Policy Models

https://www.sunypress.edu/Searchadv.aspx?=Oren+M.+Levin-Waldman&txtISBNSearch=&txtKeyword_summary_or_toc=&txtKeyword_subject=

#####

BIOGRAPHY

Oren M. Levin-Waldman is faculty member in the School of Public Affairs and Administration at Rutgers University-Newark, and Socioeconomic Research Scholar at Global Institute for Sustainable Prosperity Research.

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Learn more at the professors Website: https://www.econlabor.com/. Direct email to olevinwaldman@gmail.com

# # # # #

Oren M. Levin-Waldman, Ph.D

https://www.econlabor.com/

Office: (914) 629-6351

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Violating the Constitution Does Not Protect Our Democracy By Oren M. Levin-Waldman - Yonkers Tribune.

PHILADELPHIA A Philadelphia grand jury has recommended criminal charges against three former longtime city homicide detectives for perjury in a landmark murder case, accusing them of lying on the witness stand.

The allegations, unveiled in a presentment filed by the district attorneys office on Friday and obtained by The Philadelphia Inquirer, represent an extraordinary development in a city that has seen dozens of old homicide convictions overturned in recent years but no significant legal repercussions for the police or prosecutors involved in building those cases. Many of them have since been accused of misconduct in court documents filed by District Attorney Larry Krasner.

The grand jury presentment marks a stunning turnabout for Martin Devlin, Manuel Santiago, and Frank Jastrzembski, who each served more than 25 years in the Philadelphia Police Department. Devlin for years was viewed as a star investigator in one of the nations most violent cities, specializing in cold cases and complex investigations that no one else could crack.

But in recent years, questions have emerged about the detectives investigative practices. Krasners Conviction Integrity Unit has helped overturn at least four cases they worked on, contending that the convictions were marred by coerced confessions, fabricated or hidden evidence, or secret deals with key witnesses.

These charges are an indication that a Philadelphia jury, in this case a grand jury, can carefully look at evidence and can understand that the law must apply equally to people, whether they are in law enforcement, (or) supposed to be served by law enforcement, Krasner said during a news conference Friday.

The detectives, who face charges of perjury and false swearing, have consistently denied wrongdoing. They turned themselves in at a Northeast Philadelphia police district Friday afternoon. It was not clear when they might be arraigned.

Their attorney, Brian McMongale, said his clients were innocent of these charges, adding: These three good men dedicated their lives to seeking justice for victims of crime. In this case they sought justice for a woman who was brutally raped and murdered.

Pejury, a third-degree felony, is punishable by up to seven years in prison upon conviction.

Questions about the detectives investigations surfaced during the 2016 retrial of Anthony Wright, who was convicted in 1993 of the rape and murder of 77-year-old Louise Talley in Nicetown. Wrights appellate attorneys later discovered DNA evidence that proved he had not raped Talley. Wrights conviction was overturned, but then-District Attorney Seth Williams office sought to convict him again, saying the results did not preclude him from being an accomplice to the crime.

He was quickly acquitted in August 2016, and afterward some jurors took the remarkable step of standing beside Wright and publicly criticizing prosecutors for continuing to pursue what they called a weak case.

Williams said Friday that he did not recall the case and could not comment.

There are many (cases) that I remember very specific details, he said. This is not one of them.

The felony perjury charges, and misdemeanor charges for false swearing, relate to the detectives testimony in that retrial as well as their testimony in a 2017 civil deposition. The charges were filed mere days before the expiration of the five-year statute of limitations.

Wright, who served 25 years of wrongful imprisonment, has long alleged that detectives fabricated evidence and subjected him to a brutal, physically abusive interrogation before forcing him to sign a false confession.

He settled a civil lawsuit against the city for $9.8 million, but said its now time for those who framed him to face justice.

This will mean everything to me if those guys individually can be held accountable for what they did to me. And their name is on so many peoples paperwork that were wronged, he said, adding that the losses accrued over 25 years are hard to calculate. He missed his mothers funeral, and watching his son grow up. The harm that was done we need to let people know this cannot be tolerated.

At Wrights retrial in 2016, Devlin testified that he had never threatened an interview subject, and that he had transcribed Wrights confession verbatim. Then, he agreed to a challenge by lawyer Samuel Silver: to transcribe the confession again in real time as Silver read it aloud. He got just six or seven words down on the page though, before it became clear he could not keep up.

There were also allegations of perjury involving Santiago and Jastrzembski, raised in the form of a disciplinary complaint filed by the Innocence Project in 2018 against Assistant District Attorney Bridget Kirn. (No action was taken publicly against Kirn by the Disciplinary Board of the Supreme Court of Pennsylvania.)

The complaint alleged that Kirn failed in her duty to correct false testimony by Santiago and Jastrzembski when they told jurors they had not been briefed on the damning DNA tests conducted after Wrights first conviction. The tests showed that semen taken from the victims body matched Ronnie Byrd, a Nicetown crack user not Wright.

It also showed that wearer DNA on bloody clothing Jastrzembski said he had recovered from Wrights home, an aspect of his supposed confession, was a match for the victim, and not for Wright.

The complaint noted that a year after the retrial, during depositions for Wrights civil lawsuit, both detectives acknowledged that the district attorneys office had informed them of the test results in pretrial briefings. Kirn and other detectives confirmed that in their depositions.

All of them perjured themselves during their testimony at the retrial, said Peter Neufeld, co-founder of The Innocence Project and one of Wrights lawyers. They perjured themselves on all kinds of things. Jastrzembski perjured himself when he said he found clothing he didnt find, and Santiago and Devlin both perjured themselves about the way the interrogation went down. They all lied.

The grand jury said it believed charges were necessary to correct the historical record and hold the three former detectives Santiago, Devlin, and Jastrzembski accountable for lying under oath to condemn an innocent man and cover up their wrongdoing, and for perverting the integrity of the law.

The detectives have been the subject of mounting criticism as cases they investigated were revealed to be some of the most shocking wrongful convictions in Philadelphia history.

Media coverage over the years portrayed Devlin as a brilliant eccentric Detective Perfect who wore a loud shirt and carried a shotgun when he allowed a reporter to ride along as he chased a suspect in North Philadelphia. He retired in 1995 and had a storied second act as a detective for the Camden County prosecutors office. An Inquirer profile, written after he helped win the high-profile conviction of Cherry Hill Rabbi Fred Neulander for hiring a hit man to kill his wife, called Devlin street smart and feisty, with intense green eyes that display both the joy and seriousness he brings to the job.

He has been accused of participating in violent interrogations that ended with forced, false statements in at least five different murder cases. In one, Devlin was accused of coercing a false confession from Willie Veasy, while Jastrzembski, the lead detective, allegedly hid evidence that cast doubt on Veasys involvement, in violation of the Constitution.

Veasy spent 27 years in prison but was exonerated in 2019. He settled a civil lawsuit against the city for $5 million earlier this week.

Jastrzembski and Santiago were among three detectives who refused to testify in a 1994 court proceeding about a murder case they investigated, instead invoking their Fifth Amendment right to avoid incriminating themselves. In that case, Commonweath v. Percy St. George, there were also suggestions of perjury as the detectives had testified to taking statements that witnesses said were fabricated or coerced.

Marc Bookman, then a public defender on the case and now the executive director of the Atlantic Center for Capital Representation, said that case should have led to punishment decades ago.

The fact that all these cops were guilty of misconduct was not a secret, Bookman said. It all took place in open court. In a real criminal justice system, the DAs office would have done a full investigation and probably ended up prosecuting the police. But Philadelphia during those years was a rigged town there was no oversight.

The two detectives also built the case against Jimmy Dennis, whose murder conviction was vacated after he spent 25 years on death row. Like Veasy, Dennis had compelling alibi evidence that was in the possession of police or prosecutors but was not disclosed at his trial. Santiago and Jastrzembski retired in the late 1990s and continue to collect pensions from the city.

The detectives arrest was welcome news to Walter Ogrod, who spent 23 years on death row for the murder of 4-year-old Barbara Jean Horn based in part on a confession taken by Devlin and his then-partner Detective Paul Worrell one Krasners office now contends was false and coerced. Ogrod was exonerated last year.

In his view, perjury charges would be a fair starting point.

Whats the statute of limitations for attempted murder? he said. (Its five years in Pennsylvania.) Im an innocent man and what did they go for? Death. They wanted to kill an innocent man.

2021 The Philadelphia Inquirer. Visit inquirer.com. Distributed by Tribune Content Agency, LLC.

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3 former Philly homicide detectives accused of perjury in the retrial of an innocent man - The Bakersfield Californian

New York real estate heir Robert Durst took the stand in his own defense Monday during his murder trial.

Durst had been expected to become the rare defendant in a murder case who testifies in his own defense starting Thursday, but Judge Mark E. Windham said halfway through the day that court was adjourned until late Monday morning, apparently over an issue with a juror.

Durst, 78, is charged with killing his best friend Susan Berman, who was fatally shot in her home in 2000. He was arrested in 2015, and his trial finally began early in 2020, but the coronavirus forced a pause of more than a year before it resumed in May.

Durst told jurors Monday afternoon that he did not kill his friend and does not know who did.

DeGuerin asked Durst: "Did you kill Susan Berman?"

"No" Durst replied in a weak voice.

The prosecution rested its case last week.

It's considered exceedingly risky for a defense attorney to put their client on the stand in such a case and subject them to potentially damaging cross-examination, and the Fifth Amendment's protections against self-incrimination allow defendants to avoid it.

But it would be the second time Durst and DeGuerin have done it. It worked the first time. DeGuerin called Durst to testify in his 2003 Texas murder trial, where he was acquitted.

Durst was charged with killing his Galveston neighbor Morris Black while in hiding there after Berman's killing. He testified that Black was accidentally killed in a struggle after entering Durst's apartment with a gun. He admitted to chopping up and disposing of Black's body. He later pleaded guilty to evidence tampering and bail jumping, but the jury found him not guilty of murder.

While he is charged with just one killing in California, prosecutors at his trial have been allowed to present evidence from the Texas case, and evidence that Durst killed his wife, who disappeared in New York in 1982. Kathie Dursts body was never found, but she has been declared legally dead. Durst has never been charged in connection with her disappearance, and has denied having anything to do with it.

He has also denied killing Berman, who prosecutors say was about to talk to police about Durst's involvement in his wife's disappearance. Durst's attorneys have said that he found her body, panicked, and fled to Texas, sending a letter to police that read CADAVER with Berman's address.

Durst, the scion of one of New York's most prominent real estate families, gave a series of interviews that included seemingly damning statements about the cases for the 2015 HBO documentary series The Jinx."

Durst has bladder cancer and a urinary tract infection. He has been in a wheelchair and has a catheter inserted. His hair is shaved short because fluid had to be drained from his brain.

His lawyers have sought delays and a mistrial over his health troubles, but the judge has rejected them all, expressing sympathy for Durst's state but emphasizing that jail doctors have declared him fit for trial.

Link:
Robert Durst Takes the Stand to Testify at His Murder Trial - NBC Southern California

Last Tuesday the Centers for Disease Control and Prevention (CDC) issued a new moratorium on evictions as part of an effort to fight the coronavirus pandemic. This represents a stark reversal from the administrations repeated statements that the CDC lacked the statutory authority to issue such a moratorium. While most of the public controversy over the CDCs action has been around its legality, another important question remains unanswered: What process did the Biden administration use to change its legal position? Although many questions remain unanswered, there is troubling evidence that either the Department of Justice was not consulted on a major legal issue or, in the alternative, the Biden administration has misrepresented its legal position to the public. Both of these possibilities raise questions about the Biden administrations commitment to restoring the norms of executive-branch functioning.

In September 2020, the CDC issued a nationwide moratorium on evictions, justifying its action on the grounds that evictions would spread the coronavirus and that the moratorium was thus a valid exercise of its power to make and enforce such regulations as in [the agencys] judgment are necessary to prevent the introduction, transmission, or spread of communicable diseases. The moratorium was challenged on constitutional and statutory grounds by rental-property owners and, in May, a judge in the U.S. District Court for the District of Columbia held that the order exceeded the CDCs statutory authority but stayed the judgment pending appeal. The U.S. Court of Appeals for the District of Columbia Circuit upheld the stay and, in an unsigned, 5-4 decision, the Supreme Court denied a request to lift the stay, allowing the moratorium to continue until its planned expiration at the end of July.

But the Supreme Court decision was not an endorsement of the moratoriums legality. In a one-paragraph statement, Justice Brett Kavanaugh, who voted to preserve the district court stay, wrote that he agree[d] with the District Court and the applicants that the Centers for Disease Control and Prevention exceeded its existing statutory authority by issuing a nationwide eviction moratorium and that, in his view, clear and specific congressional authorization (via new legislation) would be necessary for the CDC to extend the moratorium past July 31. The reason Kavanaugh did not vote to vacate the stay and enjoin the moratorium was that the moratorium was set to expire a month later, and those few weeks will allow for additional and more orderly distribution of the congressionally appropriated rental assistance funds. Kavanaugh thus let the moratorium continue, but it appears that a majority of the courtKavanaugh and the four justices who would have granted the staybelieves that the CDC lacks the statutory authority to issue a nationwide eviction moratorium.

The Biden administration appeared to have initially understood the decision in the same way, stating, as late as July 29, that the Supreme Court has made clear that [the CDC eviction moratorium] option is no longer available. But Congress failed to act to authorize an extension of the moratorium, and progressive Democrats ratcheted up the pressure for the administration to act unilaterally to provide eviction relief. The Biden administration then abruptly changed positions, deciding sometime this past week that the CDC did, in fact, have the legal authority to issue a new, albeit somewhat narrower, moratorium. When asked about the legal basis for his administrations about-face, Biden asserted that [t]he bulk of the constitutional scholarship says that [the new moratorium is] not likely to pass constitutional muster but that, at a minimum, by the time it gets litigated, it will probably give some additional time for renters to get federal rental-relief payments. In other words, there is a possible, albeit not probable, case for the moratoriums legality, and by the time the courts weigh in one way or the other, the moratorium will have protected at least some renters from eviction. Unsurprisingly, the original eviction-moratorium plaintiffs have challenged this new moratorium, arguing that the administrations changing legal position is evidence of bad faith.

There are many legal issues to unpack around the new moratorium. Most obviously, theres the question of its substantive legality. The main statutory question, around which the litigation over the original moratorium centered, is whether the broadly but vaguely worded 1944 Public Health Service Act gives the CDC the power to block evictions on a mass basis in the service of contagious-disease prevention. There is also a constitutional question: Would the eviction ban constitute a taking under the Fifth Amendment that would require just compensation for landlords?

In addition, what, if any, guidance should the government take from the Supreme Courts actions on the moratorium question so far? On the one hand, the court has not officially held that the CDC lacks the statutory authority to issue a nationwide eviction moratorium, and the administration has emphasized this point in its defense of the new moratorium. On the other hand, there appear to be at least five votes to strike down the moratorium as exceeding the CDCs statutory authority, as Biden himself recognized at his press conference (albeit in somewhat garbled form): But the presentyou could notthe Court has already ruled on the present eviction moratorium. Whether as a matter of constitutional lawthe presidents obligation to take Care that the Laws be faithfully executedor even just prudence, should the president take action that he believes the courts will strike down, even if there is no controlling precedent exactly on point?

These are all important and difficult issues, but there is another question that has not gotten nearly as much attention: Who gave Biden the legal advice that apparently changed his mind about the legality of the moratorium?

In the press conference answering questions about the new eviction moratorium, Biden gave the following explanation:

Ive sought out constitutional scholars to determine what is the best possibility that would come from executive action, or the CDCs judgment, what could they do that was most likely to pass muster, constitutionally. The bulk of the constitutional scholarship says that its not likely to pass constitutional muster. Number one. But there are several key scholars who think that it may and its worth the effort.

According to reporting, these key scholars included well-known law professors at Duke and Harvard law schools, such as Walter Dellinger, Martha Minow and Laurence Tribe; Tribe in particular was recommended to Biden by Nancy Pelosi. Which if any scholars consulted by the White House counseled against the legality of a second eviction moratorium is still unclear.

When White House press secretary Jen Psaki was asked who gave the legal sign-off on the new moratorium, she identified other sources of legal advice:

The CDCs lawyers, as well as our Counsels Officeyes. Im not aware of the Department of Justices engagement, but of course, that might make sense. I would have to check on that.

She also said, in some tension with Bidens earlier admission that the bulk of the constitutional scholarship was skeptical of the legality of the eviction moratorium, that the President would not have supported moving forward if he did not support the legal justification. He is old school in that way.

Thus, the official position of the administration now appears to be this: It originally supported the legality of the first eviction moratorium, which it defended in court; after the Supreme Court signaled that a majority of the justices did not believe the moratorium was legal, it changed its position and concluded that the CDC could not, absent congressional action, issue a new eviction moratorium; and it then changed its position again, based on some combination of advice from outside legal experts, White House counsel, and the CDCs lawyers and decided that the CDC did indeed have the authority to issue an eviction moratorium, albeit a narrower one.

Taking this story at face value, the obvious question is where was the Justice Department in all of this? What was the position of the Office of Legal Counsel (OLC), which would ordinarily be the last word on high-profile, complex legal questions such as this one, or the Office of the Solicitor General and the Civil Division, which have responsibility for defending the new moratorium in court?

There are presumably three options. The first is that the Justice Department told the White House that the CDC did not have the authority to issue a new eviction moratorium and the White House ignored that advice. The second option is that the department wasnt consulted, either because of an oversight from the White House or because the White House, suspecting that the department would return an answer it didnt want, simply didnt ask the Justice Department. The third option is that the department was consulted, told the White House that the CDC did have this authority, and this fact has simply not been disclosed in the White Houses public messaging so far. More reporting is needed on this question, but its notable that, when Politicos Josh Gerstein asked Attorney General Merrick Garland whether the department signed off on the eviction moratorium, Garland did not answer the question.

All three of these options raise concerns. If the Justice Department was overruled or simply cut out of the process, this represents a serious breakdown in how executive branch legal decision-making is supposed to happen. To be sure, the president has the final word on executive branch legal positions. He has no constitutional or statutory obligation to consult with, let alone abide by, the legal opinions of the Justice Department. But over decades, a powerful norm has developed that the Justice Department, in particular, is the proper source of legal guidance for the executive branch. OLC is designed not only to produce legal analysis of the highest possible quality that is consistent across the executive branch and with prior executive branch precedent, but, through a combination of its culture, reputation, and institutional position within the Justice Department, is designed to be at least partially insulated from politics so as to provide advice based on its best understanding of what the law requiresnot simply an advocates defense of the contemplated action or position proposed by an agency or the Administration provide the president with the best view of the law. (Whether OLC has always lived up to this lofty standard, and whether past presidents have always treated OLC as authoritative, is a separate question.) And the Office of the Solicitor General and the Civil Division, the primary litigators for the executive branch, make sure that the executive branch upholds its credibility with the courts and takes positions that support the executive branchs overall legal interests, not to mention general rule-of-law norms. If Pelosi really did tell Biden to get better lawyers and Biden responded by going outside the Justice Department, that should set off alarms about the confidence that Biden has in the departments traditional role as the main source of legal advice and analysis for the executive branch.

None of this is to say that the sources on which the Biden administration reportedly relied were subpar, or that Biden was wrong to solicit a wide range of legal views in addition to those of the Justice Department, but rather that none of them provide the departments special sauce: the combination of high-level legal expertise and a degree of independence achieved through institutional design, internal culture or reputation. The White House counsels office is, if only by virtue of its proximity to the president, inclined to take a particularly aggressive view as to the legality of the presidents policy goals. The CDCs lawyers, while no doubt expert when it comes to the CDCs statutory authority, may not have sufficient distance from their own agencys equities to always provide the best view as to the scope of the CDCs powers. And outside scholars, no matter how illustrious, are precisely that: outside the government and thus outside the institutional structures that have been developed to provide appropriate legal advice within the executive branch and avoid the risk of cherry-picking, which is a particular concern in this case given the wide variety of sincerely held views across the legal academy. (Besides, the attorney general was, until recently, one of the most respected appellate judges of his generation, and OLC is headed by two widely respected constitutional law professorsthe Justice Department is more than qualified to give the White House all the legal advice it needs.) If the Biden administration decided to make an abrupt change in its legal position, these sources of advice should have been at minimum supplemented by the departments considered views.

If, on the other hand, the Justice Department did in fact sign off on the new order but the Biden administration simply hasnt said so, that would be its own, wholly avoidable error. Part of upholding the procedural norms of executive branch legal interpretation is stating publicly that those procedures were followed. If one follows a norm but acts as if one didnt, that undermines the norm as much as if one had actually flouted it.

There is, of course, another possibility: that the White House never actually believed that the CDC lacked the authority to issue another eviction moratorium, but that it said so to put pressure on Congress to act. This would certainly explain the Justice Departments apparent silence: OLC, the Civil Division, and the Office of the Solicitor General presumably all signed off on an interpretation of CDC authorities as including the power to issue an eviction moratorium, because they were defending the original moratorium all the way up to the Supreme Court. And given that the court hasnt issued a ruling on the merits, and the new CDC moratorium is narrower than the old one, there would be no need for the Justice Department to update its legal view, since the underlying issue had not changed.

This view is thus reassuring from the perspective of internal executive branch legal process, but it raises concerns of its own about the candor of the administrations statements about its view of the law. If the administration believed this entire time that the CDC could issue a moratorium, but publicly misrepresented its view to pressure Congress to act, that would seriously undermine its credibility.

A central message of Bidens campaign was that he would rebuild norms of transparency, procedure, and honesty in the executive branch, norms that had been severely weakened by four years of the Trump administration. Based on the record as it stands now, there is a serious cloud around whether in this case the Biden administration has lived up to that promise. At the very least, the administration should clarify its confusing and seemingly contradictory statements about the internal legal deliberations. Whether one supports or opposes the CDCs eviction moratorium, the question of how its legal basis was developed and whether that process was communicated truthfully and accurately to the public is a serious one, and one for which the Biden administration should be held to account.

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Did the Justice Department Give President Biden Legal Advice on the CDC Eviction Moratorium? - Lawfare