THE SENATE IMPEACHMENT TRIAL OF JUDGE THOMAS PORTEOUS : A TIME AND CALL FOR SENATE NULLIFICATION

LAURACK D. BRAY, ESQ.
FEDERAL ATTORNEY
P.O. BOX 611432
LOS ANGELES, CALIFORNIA
TEL: (805) 901-2693


December 6, 2010

TO: THE U.S. SENATE AS A JURY

RE: THE SENATE IMPEACHMENT TRIAL
OF G. THOMAS PORTEOUS

V.

CALIFORNIA’S JUDICIAL SEVEN

A TIME AND CALL
FOR
SENATE NULLIFICATION

This is a Petition to the government ( in this case, the U.S. Senate as a jury) for redress ( in this case, for Senate (jury) nullification) in the impeachment trial of G. Thomas Porteous. This Petition is submitted for two reasons: (1) to help secure fundamental fairness for judge Porteous regarding his Senate impeachment trial; and (2) to uncover and/or expose the criminal conduct of various California judges, state and federal, whom the U.S. Justice Department has refused to prosecute, notwithstanding sufficient and probable cause evidence with which to do so, and, in particular, regarding fairness to judge Porteous, a specific federal judge, who has committed criminal and impeachable conduct, yet, has not been prosecuted or impeached.

I am a Black or African American civil rights and appellate lawyer, practicing federal law only, mostly appeals, here in California. However, I began my practice in the District of Columbia, and nearly my entire legal career, after law school, has been spent in private practice as a sole practitioner. My background includes a B.A. , M.S., and M.P.A. from California State University, Long Beach, Ca., and a law degree from Howard University in Washington, D.C. I have also served in the military, during the Vietnam War Era, receiving an honorable discharge from the U.S. Army. During the course of my legal career, I have been appellate counsel of record in several cases which have resulted in published opinions. The three most important ones are Miller v. Smith, 99 F.3d 120 (4th Cir. 1996)(reversal of the denial of free transcripts to an indigent appellant) (reversed by Miller v. Smith, en banc, 115 F.3d 1136 (4th Cir. 1997); Jackson v. Guirbino, 364 F.3d 1002 (9th Cir. 2004)(reversal of a murder conviction based on Miranda); and In the Matter of Crammond, 23 I & N Dec. 9 (BIA 2001), en banc (reversal of a deportation order), vacated on other grounds, In the Matter of Crammond , 23 I & N Dec. 448 (BIA 2002). Finally, while this factor was not decisive in my decision to submit this Petition, I was born in New Orleans, La., and lived there my first twelve years before moving to Los Angeles with my family.

I do not know judge Porteous, either personally or professionally. I have never met judge Porteous, nor have I met any of his lawyers who represent him at the impeachment proceedings. I only became aware of judge Porteous through news reports initially, and thereafter, through C-Span’s coverage of the Articles of impeachment and the Senate impeachment trial.

In June, 2007, I, together with two clients of mine, Harold James Griffith and Jeanette Andrews (both white), filed a criminal complaint, supported by evidence (including trial transcript evidence), in and with the U.S. Attorney’s Office in Los Angeles, CA. The Complaint charged multiple acts of criminal conduct, including racial discrimination, conspiracy to commit racial discrimination, obstruction of justice, false statements, and fraud, by multiple individuals, i.e., state and federal judges and a Clerk of Court. The Complaint evolved from conduct by the accused in basically four civil cases : (1) Nguyen v. Bray, Civ. 221162, Ventura County(CA) Superior Court (unlawful detainer case); (2) Bray v. Hintz, 04-4495, U.S.D.C., Central Dist. of Cal.(racial discrimination case); (3) Andrews v. Johnson (Navy) , 03-3628DT, U.S.D.C., Cent. Dist. of Cal.(disability discrimination case); and (4) Griffith v. SHHS, CV-91-4108, U.S.D.C., Cent. Dist. of Cal.(social security disability case). And these cases subsequently evolved into appellate cases, which were litigated in the Ninth Circuit Court of Appeals. To put it succinctly, the misconduct, which at the core was racial discrimination, began at the Superior Court of California, continued through the United States District Court for the Central District of California and ended with the United States Court of Appeals for the Ninth Circuit. The federal criminal complaint followed a federal misconduct complaint (involving the same federal judges) filed with the Ninth Circuit Court of Appeals, whereby and during which one of the criminally-accused federal judges, faced with probable removal from office, retired ( to avoid Ninth Circuit Judicial Council proceedings—with the assistance of another assigned chief judge).

Within a day and a week, respectively, after we filed the criminal complaint, two state judges named in the complaint retired from the Superior Court of Ventura County, California bench, Steven Hintz and Barry Klopfer. Later, a federal district judge, Terry Hatter, Jr., retired (and retained senior judge status), and, finally, an ex-Clerk of the Ninth Circuit Court of Appeals, Cathy Catterson, resigned her position as Clerk. Two of the federal district judges, William Schwarzer (senior judge) and Dickran Tevrizian, were already retired at the time the complaint was filed. Thereafter, another criminal complaint was filed against additional “Defendants” (for ease of understanding). Following this complaint, another defendant resigned, former United States Attorney for Los Angeles, Thomas P. O’Brien. Together these seven individuals comprised what I designated the “Judicial Seven”, for those individuals charged in our criminal complaints who the U.S. Justice Department and the U.S. Attorney’s Office in Los Angeles forced (based on sufficient probable cause evidence of a crime for an arrest) to retire (if not already retired), and thereafter, allowed to retire or resign , sometimes with benefits, without suffering any real penalty, i.e., fine, restitution, suspension, imprisonment, etc.


I.

WHAT IS SENATE NULLIFICATION ?

Senate nullification is simply the counterpart of jury nullification, when the Senate acts as a jury for impeachment purposes. However, the Senate jury is unique :

Sen. Clair McCaskill, Chairman, Senate Impeachment Trial Committee :

“WE ARE TALKING ABOUT DIFFERENT STANDARDS. WE ARE TALKING ABOUT DIFFERENT KINDS OF PROCEDURES. THIS IS NOT A TYPICAL JURY SITTING UP HERE. THESE ARE PROPLE THAT ARE GOING TO BE ABLE TO WEIGH THE VARIOUS INFORMATION THAT COMES IN FRONT OF THIS COMMITTEE AND THE RECORD THAT DEVELOPS, AND DECIDE WHICH PART OF THAT INFORMATION THAT IS RELEVANT TO THEIR PERSONAL DECISION IN REGARDS TO A CONVICTION OR ACQUITTAL ON THE IMPEACHMENT.”

While there are several definitions of jury nullification, in submitting this petition, I will rely on that definition set forth by Black’s Law Dictionary, 9th Edition:

A jury’s knowing and deliberate rejection of the evidence or refusal to apply the law either because the jury wants to send a message about some social issue that is larger than the case itself or because the result dictated by law is contrary to the jury’s sense of justice, morality, or fairness.

Here, I believe the Senate should nullify for both reasons: (1) to send a message about some social issue that is larger than the case itself and (2) because the result dictated by law, I believe, is contrary to the Senate’s sense of justice, morality, or fairness. I will more fully expound upon these reasons at or near the end of this petition, after I have more fully provided the basis for the reasons.



II.

THE IMPEACHMENT OF JUDGE PORTEOUS, UNDER THE CIRCUMSTANCES, WOULD DENY HIM FUNDAMENTAL FAIRNESS AND VIOLATE HIS CONSTITUTIONAL RIGHTS TO DUE PROCESS AND EQUAL PROTECTION OF THE LAW.

I believe that the Senate cannot impeach judge Porteous, with knowledge of some of the information that I will provide, without denying him fundamental fairness, justice, and equal protection of the law.

A. BECAUSE I HAVE PERSONAL KNOWLEDGE OF AND PERSONAL INVOLVEMENT IN THE HERETOFORE INFORMATION AND MATTERS THAT I WILL SUBMIT, AND BECAUSE I AM AN OUTSIDE OBSERVER, I AM UNIQUELY QUALIFIED AND SITUATED TO PRESENT THIS PETITION TO THE SENATE.

This Petition would not be brought by the House Managers because it would concede their case and their efforts before the Senate; and it probably was not and would not be brought by judge Porteous’ lawyers because it would tend to give the impression that they believed that they had a weak case or defense on the merits (of the evidence and the law) and therefore, they had to resort to a procedural or “outside” defense in order to prevail. Thus, if an argument of this nature is to be made in this case at all, it must be made by a third party or person, hopefully detached from the two main parties involved in the impeachment controversy. I am that person.


B. JUDGE PORTEOUS HAS BEEN DENIED FUNDAMENTAL FAIRNESS IN THE “IMPEACHMENT PROCESS” BECAUSE HE HAS BEEN TREATED DISPARATELY DIFFERENT THAN OTHER SIMILARLY-SITUATED FEDERAL JUDGES, BEGINNING WITH THE DECISION TO INITIATE THE IMPEACHMENT PROCESS AGAINST HIM.

Judge Porteous has received fundamental unfair treatment by both the U.S. Department of Justice and the House of Representatives through the House Judiciary Committee (which includes the House Impeachment Task Force, House Managers, and House Counsel)(hereinafter “House”). The unfair treatment began with the U.S. Justice Department and continued with the House. In order to illustrate the disparate treatment by the Justice Department, I will utilize and compare the cases of the California “Judicial Seven”, who, as alluded to earlier, are seven judges (both state and federal) and other officials whom the Justice Department “caused” and/or “allowed” to retire, rather than be prosecuted for crimes, after the individuals were faced with probable arrest and/or possible grand jury investigation and/or indictment, based on probable cause evidence against them . For the House’s unfair treatment, I will also rely on the Judicial Seven, but necessarily, I will restrict my reliance to the applicable federal judges only.

I intend to demonstrate that regardless of the “high crimes and misdemeanors” that judge Porteous is accused of committing, he was not provided fair and equal treatment in the government’s prosecution of him for those crimes. I intend to show that at least in part, judge Porteous was subjected to vindictive prosecution and disparate treatment by the Justice Department, and at least selective prosecution by the House.

Finally, in entertaining this Petition, the Senate should keep in mind that the Constitution does not designate nor identify a particular number or type of “high crime or misdemeanor” necessary for impeachment; therefore, only one high crime or misdemeanor of any type (e.g., perjury, racial discrimination, or theft) is sufficient. So, the House cannot justify impeaching judge Porteous because he purportedly committed certain types of crimes (e.g., bribery or “kickbacks”) or a certain number of crimes (e.g., four articles of impeachment), while not impeaching another federal judge who has committed only one crime of only one type (e.g., racial discrimination or conspiracy). The Constitution does not provide support for treating the two classes differently.






III.

PARTICULARLY, WHEN VIEWED WITHIN THE CONTEXT OF THE JUDICIAL SEVEN, THE JUSTICE DEPARTMENT’S PURSUANCE OF JUDGE PORTEOUS WAS A “VINDICTIVE PROSECUTION”.

Even standing alone, there is sufficient evidence for a colorable claim of vindictive prosecution by the Justice Department, but, when buttressed with the Justice Department’s treatment of the Judicial Seven, it seems clear that the Department filing a misconduct complaint with the Fifth Circuit was a result of personal and focused pursuance. This is a good time and place to admit that my factual assertions regarding judge Porteous’ impeachment derive from the internet, C-Span trial coverage, and news accounts and coverage. So, if I assert a material incorrect fact that goes to support my argument, you, the reader, may disregard the argument. This Petition, necessarily, will not be as thorough a Petition as it could be for financial reasons .

According to Black’s Law Dictionary, 9th ed., a vindictive prosecution is “a prosecution in which a person is singled out under a law or regulation because the person has exercised a constitutionally protected right” (emphasis added); moreover, even though “(i)n the U.S. justice system, prosecutors have broad discretion in deciding whether to charge someone with a crime and, if they do, to decide what and how many crimes they will be charged with(,) (p)rosecutorial discretion is not. . . unlimited. As a law review article notes, courts ‘protect individuals from prosecutorial decisions that are based on unconstitutional motives or executed in bad faith. Prosecutors may not engage in selective prosecution, which denies equal protection of the law, or vindictive prosecution, which violates due process rights.’ 38 Prosecutorial Discretion, Georgetown Law Journal Annual Review of Criminal Procedure 219, 222 (2009)” (as cited in CYB3RCRIM3 blog, “Vindictive Prosecution”, September 22, 2009)(emphasis here and in the original). The Justice Department, after declining to prosecute judge Porteous (after FBI and grand jury investigation), provided as one of its reasons, that some of the allegations against judge Porteous had run outside the statute of limitations period. But, judge Porteous challenged this asserted reason for not prosecuting him ( likely believing that there was insufficient evidence of a crime because he did not commit the crimes that he was accused of), and he agreed to toll or waive the statute of limitations. And so, even in view of the tolling agreements, the Justice Department could not find sufficient evidence to prosecute judge Porteous on the “statute of limitation-based” allegations. Therefore, it had to continue to decline prosecution, displaying to others that the statute of limitations excuse for not prosecuting judge Porteous was just that, an “excuse”, and what eventually proved to be, an invalid one. That “in your face” and successful challenge could not have pleased the Justice Department; and it likely created some disgust, i.e., having to close the case without an indictment, where it believed judge Porteous should have been indicted). Thus, Justice decided to go beyond its own responsibility and criminal jurisdiction to submit a letter-complaint of judicial misconduct to the Fifth Circuit, to see if that body could find a way to punish judge Porteous for his investigated acts, even if Justice could not. I doubt if Justice was required to complain to the Fifth Circuit, therefore, it was a discretionary act, and judge Porteous was “singled out” for use of that discretion.

When viewed in the context of the California Judicial Seven, it becomes clearer that judge Porteous was singled out for prosecution. The Justice Department submitted its misconduct complaint to the 5th Circuit in May, 2007. However, on June 25, 2007, as alluded to earlier, my clients and I filed a criminal complaint in the U.S. Attorney’s Office in Los Angeles against the Judicial Seven and others. Within a week of the filing, two California Superior Court judges, Steven Hintz and Barry Klopfer were “caused” (or forced) to retire by the Justice Department (through FBI agents). Hintz retired on or about the same day the complaint was filed, and Klopfer, about a week later. Klopfer was a member of a three-judge appellate panel that reviewed and affirmed Hintz’s judgment. The other two panel members were David Long and Ken Riley, and they were also named in the complaint. Klopfer, Long, and Riley all signed the fraudulent appellate decision, but the Justice Department only forced Klopfer to retire (likely because he actually wrote the decision that was endorsed by the others---nevertheless, because they all signed the decision, they are all equally liable).

All four judges were charged in the complaint with conspiracy to deny civil and constitutional rights under color of law and based on race, or racial discrimination. Since Justice did not force Long and Riley to retire, like Klopfer, we can assume that it found there was insufficient evidence for an arrest or to bring charges. Nonetheless, unlike with judge Porteous, where Justice also found insufficient evidence to bring charges, the Justice Department did not refer judges Long and Riley to the California judicial misconduct Commission; and clearly, there was a basis for doing so, since they had signed and adopted the same decision that formed the basis for Klopfer’s forced retirement. So why did Justice refer judge Porteous to a misconduct body, but not judges Long and Riley? It seems clear, whatever the reasons, that they were unconstitutional or “executed in bad faith”, e.g., retaliatory for judge Porteous waiving the statute of limitations and further exposing an invalid excuse and a lack of evidence against him or the Justice Department placing a greater premium on “kickback” or self-help money crimes than on racial discrimination crimes.

Judge Porteous was also subjected to disparate treatment by the Justice Department regarding retirement. While the Justice Department forced and allowed Hintz to retire with benefits, after having found sufficient probable cause evidence to arrest and likely indict him, it pursued a course of deprivation of benefits for judge Porteous, even though it found insufficient evidence of a crime to pursue an arrest or prosecution against him, and even though judge Porteous voluntarily wants to retire next year (he could fight impeachment without an expression of retirement; and if he won, he would simply return to the bench and continue judging). This was disparate treatment by the Justice Department.


IV.

THE HOUSE EXERCISED SELECTIVE PROSECUTION OR IMPEACHMENT OF JUDGE PORTEOUS, DENYING HIM EQUAL PROTECTION OF THE LAW

According to Black’s Law Dictionary, 9th ed., selective prosecution is :

The practice or an instance of a criminal prosecution (or, in this instance, an impeachment) brought at the discretion of a prosecutor rather than one brought as a matter of course in the normal functioning of the prosecuting authority’s office. Selective prosecution violates the Equal Protection Clause of the Fourteenth Amendment (in this case, it would be the Due Process Clause of the Fifth Amendment, which contains an equal protection component) if a defendant is singled out for prosecution when others similarly-situated have not been prosecuted and the prosecutor’s reasons for doing so are impermissible . (Emphasis added).

The House selectively prosecuted judge Porteous because at the time that it decided it would “inquire whether the House should impeach judge Porteous”, there were several similarly-situated federal judges whom the House could have inquired about, but chose not to. Therefore, judge Porteous was singled out for impeachment by the House. Here, the similarly-situated characteristics primarily are : (1) federal judges, (2) accused of impeachable crimes or offenses, (3) who have or had a federal misconduct complaint filed against them, but who have not undergone a criminal trial, and (4) who could have been investigated for impeachment at the time judge Porteous was.

While there are several judges that meet the similarly-situated requirements, I will rely on one judge in particular for the similarly-situated examination : ex-district judge Dickran Tevrizian of the United States District Court for the Central District of California. Judge Tevrizian’s impeachable conduct was outlined and/or depicted in both a federal misconduct complaint and a federal criminal complaint. Overall and primarily, Tevrizian was “charged” (by the misconduct complaint and the criminal complaint complainants---the same for both complaints) with conspiracy to deny civil and constitutional rights under color of law and based on race, or racial discrimination. All other acts of misconduct or criminal conduct were done in perpetuation of the racial discrimination. Some of the other acts were : (1) Tevrizian arbitrarily denied a request to re-assign a race discrimination case to another judge at the beginning of the case, in violation of a court rule, dictate, or provision directing that cases were to be randomly assigned---the case was not randomly assigned to Tevrizian---and, in view of the fact that the black plaintiff-lawyer had filed a writ of mandamus against Tevrizian on behalf of a client in another case, Andrews (and the writ was granted by the Ninth Circuit). Compare: judge Porteous denial of a recusal motion in the Lifemark v. Liljeberg case and the impeachment Article I. (2) Tevrizian arbitrarily denied a motion for a temporary restraining order (which was directed at re-gaining possession of a home-law office and law practice by a black lawyer) without a hearing; (3) he arbitrarily and capriciously denied a preliminary injunction (directed at the same relief as the TRO) without a hearing, and (4) in violation of a local court rule requiring that a preliminary injunction hearing date be set at the time a TRO is denied; (5) he intentionally and unlawfully transferred a race discrimination case to another judge, Christina Snyder (who had previously denied relief to the black lawyer-plaintiff in another case), with the intent to deny the black lawyer his constitutional rights to a due process fair trial before a fair and impartial judge. Compare : judge Porteous’ purported unlawful actions to expunge the convictions of individuals, particularly the Senate trial witness Aubrey Wallace (to enhance rights---not deny rights) ; (6) he ignored or disregarded a local rule affecting a disability discrimination plaintiff’s right to counsel, and , thereafter, denied the plaintiff her right to counsel without a hearing; (7) he denied a black lawyer’s motion to represent a client pro hac vice, without a hearing, after the client’s first lawyer (white) had to withdraw because of a directive from the California State Bar, and even though the black lawyer acted as “of counsel” in the case before the white lawyer’s withdrawal; (8) he refused to obey federal default law (the Navy had defaulted), requiring a plaintiff, through counsel, to seek and obtain a writ of mandamus from the Ninth Circuit (writ granted) to force him to do so; (9) he ignored default set aside law in order to set aside a default that had been entered against the Navy; (10) he unlawfully continued district court proceedings and granted the Navy summary judgment against a pro se Plaintiff (in her absence), when he lacked jurisdiction to do so (the case was being appealed). Compare : judge Porteous’ purported unlawful expungement of convictions (to provide for greater opportunities in life for the individuals) ; (11) he conspired with the assigned chief judge, Harry Pregerson, to retire rather than face discipline by the Ninth Circuit Judicial Council; (12) he conspired with Pregerson to commit fraud on the Judicial Council and the Judicial Conference of the United States regarding the processing of his misconduct complaint; and (13) he conspired to obstruct and impede an official proceeding, i.e., the Ninth Circuit disciplinary proceeding. Again, there are several other federal judges that are similarly-situated with judge Porteous; but I chose judge Tevrizian to emphasize the point, based on the nature of his misconduct. Tevrizian did not compile a sufficient misconduct record before the Ninth Circuit, unlike judge Porteous with the Fifth Circuit, because the Ninth Circuit assigned chief judge, Pregerson, acted criminally to force and allow Tevrizian to “retire”, rather than face discipline, which likely would have ultimately been removal from office. We also charged Pregerson in a criminal complaint with obstruction of justice (and it probably would include conspiracy to obstruct justice, fraud, and mail fraud).

Finally, in comparing Porteous to Tevrizian, most of judge Porteous offenses were “personal”, self-enhancement offenses, away from the bench, and not intended to harm litigants or lawyers that appeared before him. Indeed, from the Senate Committee trial testimony, all indications were that judge Porteous was a “very fair and impartial judge” (testimony of Aubrey Wallace, a black House witness); “Judge Porteous gave everybody a fair trial” and “Mr. Mole, at every stage of the proceeding, has said that judge Porteous gave him a fair trial” (Donald Gardner, a Porteous witness); he “kind of went out of his way to feel for the common folk” (Jacob Amato, a House witness); and for the relevant black community, judge Porteous was “special”. Black criminal defendants in the community knew that with judge Porteous they at least had a “chance” (Aubrey Wallace) of obtaining a fair bond regarding a charged offense. With most other judges, they were usually given a very high bond (or denied bond altogether). If judge Porteous did violate the law while on the bench, even if he had some other selfish motive, it appears that it was usually done to help someone better his or her life (e.g., expungement of conviction for Aubrey Wallace), rather than cause harm. To the contrary, most of judge Tevrizian’s offenses were committed while he was on the bench, i.e., made rulings or took actions, and his actions were intended to cause harm and did cause harm to litigants and a lawyer appearing before him. And, in my case, they were done with malice aforethought . Judge Tevrizian’s actions ruined my personal life and my professional life as a lawyer. I have yet to recover.

Yet, the House impeached judge Porteous, but did not impeach judge Tevrizian.

“On September 17, 2008, the House of Representatives of the 110th Congress passed House Resolution 1448, which provided that the Judiciary Committee shall inquire whether the House should impeach Judge Porteous.” Porteous Complaint for Declaratory Judgment and Injunctive Relief, U.S.D.C., D.C.

On the same said date, September 17, 2008, the Judiciary Committee could also have inquired “whether the House should impeach” judge Tevrizian. The Committee certainly had sufficient notice of judge Tevrizian’s possible impeachment conduct (sufficient to conduct an inquiry) :

1. On June 6, 2007, I, along with the aforementioned two clients , submitted a petition for redress and a recommendation for impeachment to the U.S. Congress and specifically to the House and Senate Judiciary Committees, where I specifically recommended judge Tevrizian, among others, for impeachment. See Exhibit #1 (selected pages only).
2. On June 30, 2007, I wrote a letter to Rep. Carolyn C. Kilpatrick , “as Chairwoman of the Congressional Black Caucus, as well as your position as a member of the House of Representatives.” I informed Rep. Kilpatrick that I had filed a criminal complaint against judge Tevrizian, among others. See Exhibit #2 .
3. On January 19, 2008, I (and on behalf of my clients) petitioned the Judicial Conference of the United States for review of the Ninth Circuit’s Judicial Council’s decision on our misconduct complaint. I specifically identified judge Tevrizian for discipline. See Exhibit #3.
4. On March 26, 2008, I wrote to Rep. Hank Johnson, who is now a manager prosecuting judge Porteous’ impeachment trial. Again, I specifically identified judge Tevrizian as one of the judges allowed to retire rather than face discipline. You may view this letter on my website at laurackdbray.blogspot.com, under the title “Judicial Misconduct” April, (2008).

Finally, “On January 13, 2009,the House of Representatives of the 111th Congress passed House Resolution 15, which continued the authority of House Resolution 1448 of the 110th Congress, in order to permit the work of the Impeachment Task Force to continue.” U.S.D.C., D.C., Porteous Complt. For Declr. Judg. & Injunct. Relief.

On January 12, 2010, my clients and I submitted a Supplemental Memorandum to Special Prosecutor John Durham and we copied (“cc”) to the House Impeachment Task Force. In the memorandum, at p.6, we specifically stated, “as to one federal judge, retired judge Dickran Tevrizian. . . , there is ample evidence that would support a charge of ‘aggravated judicial and racial abuse’, so as to make the sexual abuse charges in judge Kent’s case applicable as well.” So, the House could have impeached judge Tevrizian the same time that it impeached judge Porteous. It simply chose not to. You may view this Supplemental Memo on my website as well, laurackdbray.blogspot.com, under the title “Supplemental Memorandum to John Durham” February, (2010).

In sum, judge Porteous was denied equal protection of the law not only because he was selectively prosecuted or impeached by the House, but also because both the Justice Department and the House allowed various individuals, including federal judges (who had been forced to retire because of criminal conduct and evidence supporting that conduct), to retire and/or retire with benefits, while not allowing judge Porteous to retire with benefits, after he was cleared of criminal charges and voluntarily agree to retire.







V.

THE ONLY FAIR OR EQUITABLE REMEDY FOR JUDGE PORTEOUS IS SENATE (JURY) NULLIFICATION; THE SENATE MUST SEND A MESSAGE TO BOTH THE HOUSE AND THE JUSTICE DEPARTMENT.

If the Senate finds that the Constitutional rights of judge Porteous were violated before and during the course of the House’s prosecution of his impeachment, then the only remedy is to acquit or refuse to impeach him, regardless of any colorable evidence of “high crimes and misdemeanors”, because judge Porteous’s constitutional rights to a fair process supersedes the charges in the impeachment articles. This is dictated by both the Constitution itself (because it guarantees due process and equal protection of the law) and by the Senate jury’s oath regarding impeachment. Pursuant to that oath, the senators solemnly swore :

THAT IN ALL THINGS APPERTAINING TO THE TRIAL OF THE IMPEACHMENT OF G. THOMAS PORTEOUS, DISTRICT JUDGE OF THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF LOUISIANA, NOW PENDING, THAT (THEY) WILL DO IMPARTIAL JUSTICE ACCCORDING TO THE CONSTITUTION AND LAWS SO HELP (THEM) GOD.

The Fifth Amendment Due Process Clause (which contains an equal protection component) is a part of the Constitution. And, the Constitution, through the Fourteenth Amendment, states that no person shall be denied equal protection of the law. Therefore, if the Senate believes, from the face of this Petition, that a colorable showing has been made that judge Porteous has been denied equal protection of the law with respect to the initiation of the impeachment proceeding against him, the Senate must refuse to impeach him and vote to acquit.

But also, the Senate’s own sense of justice and fairness should dictate the same result. How can the Senate, in good conscience, allow one federal judge, Tevrizian, to continue to collect retirement benefits, where he was forced to retire to avoid proper discipline by the Ninth Circuit Judicial Council (which likely would have resulted in his ultimate removal from office); where he conspired with another federal judge to arrange the forced retirement and escape from discipline; and where the federal criminal complaint against him charging racial discrimination has not been dismissed for a lack of evidence (still pending); while denying another federal judge, Porteous, the same retirement benefits, where he (Porteous) was cleared of federal criminal charges (based on a lack of evidence---even after waiver of the statute of limitations) by the Justice Department; where he was disciplined by the Judicial Conference of the United States for any transgressions he had committed (a two year suspension from the bench), and where he fully intends to retire from the bench next year anyway ?

Lastly, in nullifying, there are several messages that the Senate should send to the House and the Justice Department :

1. THE SENATE WILL NOT ALLOW THE HOUSE NOR THE JUSTICE DEPARTMENT TO PROSECUTE FEDERAL JUDGES IN THE SOUTH , BUT NOT PROSECUTE THOSE IN THE WEST.

The last four judges impeached by the House have been from the South, i.e., Alcee Hastings from Florida, Walter Nixon from Mississippi, Samuel Kent from Texas, and now Thomas Porteous from Louisiana. And, just recently, on November 19, 2010, or thereabouts, another federal judge from the South, Senior U.S. District Judge Jack Camp Jr. of Georgia, after being charged by the Justice Department with drug and illegal weapons charges, pleaded guilty to aiding and abetting the possession of drugs by a convicted felon. Prior to that, a Texas State judge, Manuel Barraza, in February of this year, was convicted (after being charged by the Justice Department) of wire fraud and making false statements. Comparatively, one would think judges in the West are pure. But that’s certainly not the case. Multiple judges, both state and federal, in the West have committed federal felonies. The Justice Department and the U.S. Attorney in Los Angeles simply refuse to prosecute judges in the Los Angeles area, or in California for that matter. And the press or media, in support of the judges’ escape from discipline, refuse to print anything about their criminal conduct; thereby, giving the impression that no California judges are corrupt. However, some of them are. But probably, except for murder, California judges can commit nearly any crime and the most that the U.S. Attorney and the Justice Department will do is force them to retire, often with benefits. And, together with the press and media’s skewed coverage, the retirements are made to appear to be “voluntary” retirements, i.e., a coverup of the criminal conduct. Further, unlike Louisiana, where the Justice Department arrested and charged several state judges with federal crimes, no such prosecutions have been brought in California, and it certainly hasn’t been because no state judges have committed any federal crimes in California. I don’t know about the “money” crimes, e.g., bribery or kickbacks, etc., but I certainly know about obstruction of justice, false statements, racial discrimination or other civil rights violations, voting rights violations, etc.. The Justice Department simply do not prosecute California judges.

2. THE SENATE WILL NOT ALLOW THE HOUSE TO PROSECUTE FEDERAL JUDGES IN VIOLATION OF THE CONSTITUTION, AND ESPECIALLY THE JUDGES’ RIGHTS TO DUE PROCESS AND EQUAL PROTECTION OF THE LAW.

Clearly, the House’s prosecution or impeachment of judge Porteous was done without consideration of his equal protection rights.

3. THE SENATE WILL NOT ALLOW THE HOUSE TO PICK AND CHOOSE WHO TO PROSECUTE OR IMPEACH AMONG SIMILARLY-SITUATED FEDERAL JUDGES, BASED ON THE HOUSE’S PERSONAL BIAS, E.G., A PREFERENCE FOR “KICKBACK” OR BRIBERY CASES AS OPPOSED TO RACIAL DISCRIMINATION OR OBSTRUCTION OF JUSTICE CASES.

If the House was satisfied with impeaching a federal judge for the violation of only one or two high crimes or misdemeanors of any nature, which it could rightfully do, judge Porteous clearly would have plenty of company on impeachment row. While the House may use other criteria for determining who to impeach, personal bias should not be one of them. I believe the House chose to impeach judge Porteous because he is accused of a “kickback” crime. Conversely, I believe that the House chose not to prosecute judge Tevrizian because he is “merely” accused of a racial discrimination crime (although that crime deprived a black lawyer of (personal) life experience, liberty (the pursuit of his profession as a lawyer, including the loss of his home-law office and law practice), and the pursuit of happiness (including a family and a retirement fund); and one of his client’s of her personal independence.


CONCLUSION


In conclusion, even if judge Porteous exhibited unethical conduct and committed certain crimes, the Constitution requires that the House in a constitutional manner proves he did so. One such requirement is that judge Porteous be provided equal protection of the law. He was not provided that protection by the House, and the portrait of similarly-situated judge Dickran Tevrizian is just one illustration of that fact. Moreover, if the Senate reaches down to the Justice Department’s treatment of judge Porteous, it will find that he was denied both due process and equal protection of the law in the processing of his impeachment. And, if the Senate has a sense of compassion, it will find that judge Porteous’ loss of his home from Hurricane Katrina and the loss of his wife shortly thereafter should factor into the equation.

But , probably, the most important reason why the Senate should exercise jury nullification is because, putting aside ethical considerations based on friendship and gifts and the criminal implications of distressful bankruptcy proceedings and asking friends for money, judge Porteous was shown to be a “very fair and impartial judge” from the bench, that is, to litigants and lawyers that appeared before him. He showed “compassion” for litigants, and for black litigants, it was a “special” compassion, because it was not shown by most other judges in his district. And, the most significant characteristic and qualification that any judge can have is the ability to be “fair” and impartial; it is not easily attained. It is rare. So, I urge the Senate, as a jury, to exercise jury nullification and acquit judge Porteous, and allow him to retire with benefits.



___________________ _________________________
Date LAURACK D. BRAY, ESQ.


cc : Members of the U.S. Senate as a jury, for the Senate impeachment trial of G. Thomas
Porteous .