story first appeared on mercurynews.com
SAN FRANCISCO -- Recent moves by state regulators to bargain with PG&E over its fine for the San Bruno gas explosion have been riddled with backroom dealing and could lead to the utility paying a lighter penalty, watchdogs said Wednesday.
Speaking on the steps of the California Public Utilities Commission, some participants in the regulatory case against PG&E, including San Bruno city officials and The Utility Reform Network, told reporters they have been shut out of recent, major decisions.
One of the most troubling, they said, was the involvement of the PUC's top attorney -- a former PG&E lawyer -- in the commission's move to suspend public regulatory hearings about the explosion. Another was the decision, apparently made by PG&E and state regulators, to appoint former Sen. George Mitchell and his law firm to mediate negotiations with the utility over its fine. San Bruno and TURN were among those who filed a letter with PUC President Michael Peevey on Tuesday opposing that choice.
Regulators say several company failures, including shoddy record keeping, led to the explosion that killed eight people and destroyed 38 homes. The utility said it expects a fine of at least $200 million, though a recent report said PG&E's parent company could absorb a $2.5 billion hit.
PG&E said it's goal has always been a fair and quick resolution for all parties involved.
A PUC spokeswoman didn't immediately respond to an email seeking comment, but Peevey said last week the controversy has been fueled by misunderstanding.
The outrage expressed Tuesday finds its roots in a confrontation two weeks ago. Officials from San Bruno, San Francisco, TURN, the PUC's divisions of Ratepayer Advocates and Consumer Protection and Safety, all of which are legally part of the proceedings against PG&E, were meeting Oct. 5 on the case, DRA interim Chief Counsel Karen Paull said.
PUC's lead attorney Frank Lindh, who used to represent PG&E, arrived and told the parties to agree to a motion seeking to suspend a scheduled public regulatory hearing on the blast.
With just two weeks of testimony left in the hearings, which would help determine the utility's fine for the blast, most of the parties refused to back the suspension, Paull said. Ultimately only the Consumer Protection and Safety and PG&E advocated the suspension, which was granted.
Lindh did not immediately respond to a call seeking comment.
Watchdogs were also outraged by the "backroom" decision to hire former Sen. George Mitchell and his law firm DLA Piper to handle penalty negotiations between PG&E and regulators.
The parties, except PG&E and PUC, said they only learned of the choice when the commission sent out a news release Monday.
PG&E apparently knew about the choice at least since last week, TURN Legal Director Thomas Long said. He said Mitchell's firm, which will be paid by PG&E, could favor the utility. Piper has already worked for numerous corporate clients, including Southern California Edison, which Peevey used to run.
Also, it's doubtful the mediation attorneys would be specialists in the arcane world of California natural gas regulations.
Friday, October 19, 2012
Sara Clara County Public Defender Accused of Lying
Story first appeared on murcurynews.com
SAN FRANCISCO -- The liar in the courtroom Wednesday wasn't the Santa Clara County prosecutor charged with misconduct, his defense attorney contended. It was his accuser, a public defender with a reputation for dirty tricks.
A child abuse defense attorney is involved in any case when child abuse allegations are made toward an individual.
The contention came on the first day of prosecutor Troy Benson's trial in State Bar Court. Benson is charged with concealing evidence in 2006 from a defense lawyer in a child sex-assault case and then lying about it under oath. Benson, who denies the allegations, faces at least a year's suspension, a career-killing penalty.
Benson's attorney, Jonathan Arons, promised during his opening statement to offer evidence that the primary witness against his client -- Alternate Public Defender Al Lopez -- was not known for his "truth and veracity."
But Lopez appeared to withstand the onslaught, feinting every parry except perhaps one.
Arons first accused Lopez of lying when he said he never had a case with Benson before 2006. The misconduct allegations stem from Benson's 2006 prosecution of Augustin Uribe on charges he sexually molested a female relative, starting when she was 5.
Arons persisted in trying to impeach Lopez as a witness, saying it was a real trial because the defendant was sentenced. But McElroy did not seem impressed.
Arons tried again, with a bit more success. He said Judge Arthur Bocanegra had found Lopez conducted himself in bad faith when he claimed the prosecution had violated "discovery" rules.
Benson is accused of failing to turn over a videotaped medical exam of the child in the Uribe case made by the Sexual Assault Response Team (SART) at Valley Medical Center.
Arons then blamed Lopez for accusing prosecutor Alison Filo of purposely excluding jurors of a certain unspecified ethnic or racial group in a trial involving an Asian man. His point was Lopez would go to any lengths to win a case, even smearing the reputation of a prosecutor. But an appellate court agreed with Lopez and sent the case back for a new trial. Arons then noted when Lopez filed a similar motion in another case, a judge called that motion improper.
Two of Arons' many other attempts to discredit Lopez also appeared to backfire.
He asked Lopez if he ever said the DA's office was out to get him after Judge Andrea Bryan's controversial decision to free Uribe in 2010 on the grounds that Benson committed "outrageous prosecutorial misconduct." An appellate panel agreed Benson committed "substantial misconduct" but found the judge went too far in releasing Uribe. In turn, the state Attorney General's Office found there were no grounds to charge Benson with perjury and that Lopez could just as easily have not been telling the truth.
Arons also asked why Lopez hadn't responded for about two weeks to an important email from Benson.
At times, the fierce cross-examination appeared to annoy the judge, who was holding his own against Arons. She even lectured the defense at one point, saying the heart of the case was whether Benson turned over the videotape, and that the defense didn't seem to understand the meaning of the term.
However, evidence that merely tends to impeach the state's case is also exculpatory.
Arons said Benson did not withhold the videotape, adding in his opening statement that "there's a difference between withholding something and not revealing something you don't know even know about."
But the day wasn't a complete loss for Benson. Lopez was the least clear about what he told Uribe trial Judge Paul Bernal about who discovered the tape first. Bernal is set to take the stand Tuesday to provide what could be key testimony.
Wednesday, October 17, 2012
Supreme Court Considers Race Privelege in Universities
Story first appeared in usatoday.com
The spirit of the late Heman Sweatt will be inside the Supreme Court this week when the justices consider whether the University of Texas-Austin campus that he first integrated in 1950 has carried its system of racial preferences too far.
That's the argument posed by Abigail Fisher, who contends that her application for admission in 2008 was rejected because of her skin color: white.
Sweatt probably could relate to that. He sued the university after being blocked from admission in 1946 because he was black. Today, his descendants say, racial preferences are still needed to guarantee equal opportunities for minorities.
Both sides will be in court Wednesday when the justices take up Fisher v. University of Texas and the underlying issue of affirmative action that still divides the nation -- more than a half-century after Sweatt made civil rights history.
"Fisher gives the Supreme Court the opportunity to clarify the boundaries of race preferences in college admissions — or, perhaps, eliminate them altogether," says Edward Blum, director of the Project on Fair Representation, which fights in court against the use of racial and ethnic preferences.
The court has taken a turn to the right since its last ruling upholding affirmative action in 2003. Five justices are on record opposing the practice. That could mean defeat for the university — and, possibly, a sweeping declaration that racial preferences are unconstitutional, not only at public universities but also at private schools such as Harvard and Yale because they receive federal funds.
"I would hate to see that happen," says Heman Marion Sweatt II, 62, a nephew of Heman Sweatt and a University of Texas graduate. "A lot of people feel that affirmative action is not needed anymore. I would love to see the day when affirmative action is not needed, but realistically, it still has to be dealt with."
On the flip side of that argument is Fisher, a plain-spoken young Texan denied entry into her father's and sister's alma mater. She says racial preferences made her a victim of discrimination.
"There were people in my class with lower grades who weren't in all the activities I was in who were being accepted into UT, and the only other difference between us was the color of our skin," she says in a video posted by the Project on Fair Representation to make its case. "For an institution of higher learning to act this way makes no sense to me."
The vast majority of higher education groups say it makes a great deal of sense. In brief after brief submitted to the Supreme Court in support of the Texas flagship university, organizations representing nearly all facets of higher learning – including public research universities, Ivy League schools, undergraduate and law students, even college basketball coaches – argue that colleges and universities must be allowed to consider race and ethnicity in admissions to achieve the educational benefits of a diverse student body. Some say nothing less than the nation's future is at stake.
The United States "is in the midst of a perfect storm of economic crisis, rapidly shifting demographics and lagging educational achievement compared to other nations," says University of Missouri higher education professor Roger Worthington, editor of the Journal of Diversity in Higher Education. "If we do not fix the underlying educational disparities that exist in this country, there is no path forward to regaining our competitiveness on educational or economic grounds."
Before the landmark Brown v. Board of Education case of 1954 — the unanimous court decision striking down public school segregation — and a series of cases on racial preferences leading up to Fisher, there was Sweatt v. Painter.
It was a simple case. Sweatt had sued the university and its president, Theophilus Painter, for denying him admission to the UT law school in 1946 because, as Painter pointed out at the time, "of the fact that he is a negro."
To represent him before the Supreme Court, Sweatt chose Thurgood Marshall, who would go on to become the court's first black justice. He won the case based on another "fact" — that he could not get an equally sound legal education elsewhere in Texas. It was the first time the court had ordered a black student admitted to an all-white institution.
Sweatt left the law school before graduating, the victim of chronic health problems and a divorce. But his case may be more relevant to the court's consideration of Fisher than most of the cases that have followed, including Brown.
Today, those rulings have become victims of their own success. Schools and universities have grown more integrated, however haltingly. In Grutter v. Bollinger, the court's 5-4 decision upholding the University of Michigan Law School's limited use of affirmative action, Justice Sandra Day O'Connor predicted, "The Court expects that 25 years from now, the use of racial preferences will no longer be necessary to further the interest approved today."
The Michigan case wasn't a slam dunk for the civil rights movement. At the same time, the court ruled 6-3 against the university's more numerical system of racial preferences for undergraduate admissions. And the O'Connor decision included a dissent from Justice Anthony Kennedy that takes on added weight today: Since her retirement, he has become the swing vote.
"Preferment by race, when resorted to by the state, can be the most divisive of all policies, containing within it the potential to destroy confidence in the Constitution and in the idea of equality," Kennedy wrote in Grutter.
Kennedy's significance as the man in the middle hasn't been lost on lawyers for Fisher and the university. They mention him by name 50 times in their three main briefs.
Fisher's lawyers contend that the university seeks "racial balancing," something Kennedy clearly doesn't sanction. "Racial balance is not to be achieved for its own sake," he wrote in a Georgia desegregation case in 1992.
The school's lawyers point out that in using race as one factor, the university isn't resorting to quotas or numerical targets, which Kennedy disavowed in his Grutter dissent. They say the lawsuit "is just asking this court to move the goal posts on higher education in America and overrule its precedent going back 35 years."
The makeup of today's court is notable for other reasons. O'Connor's replacement is Justice Samuel Alito, a firm conservative who argued against affirmative action in the 1980s while serving in the solicitor general's office under President Ronald Reagan. On the left, Justice Sonia Sotomayor has called herself a "product of affirmative action" because of her admission into prestigious Ivy League schools despite less than stellar test scores. Justice Elena Kagan has recused herself from the case because of her previous involvement as solicitor general in 2009-10.
If the Supreme Court rules that the university went too far in using racial preferences, most experts predict the campus could see a drop in black and Hispanic enrollments, just as it did after the 5th Circuit Court outlawed a race-conscious admissions policy used by the University of Texas School of Law in 1996. A year later, state legislators created the "Top 10 Percent" plan, through which students in the top 10% of their high school graduating class are automatically admitted to the state university of their choice.
That law has helped schools boost racial diversity, primarily because most of the state's public high schools are segregated by race and ethnicity, but not enough to achieve a "critical mass," school officials said. After the Supreme Court upheld the University of Michigan's affirmative action program, the University of Texas again began factoring race into admissions.
If the justices decide more broadly that extra measures designed to boost racial and ethnic representation on campus are unconstitutional or no longer necessary, the nation's most selective universities, public and private, will lose a long-standing tool aimed at furthering their mission to prepare a diverse pool of well-trained graduates for leadership roles.
A ruling against the University of Texas, or more broadly, the consideration of race in admissions, also threatens to upend a tradition by the court of deference toward university decision-making, says
Ada Meloy, general counsel of the American Council on Education, a non-profit umbrella group that represents higher education institutions in Washington. She says colleges will remain committed to that goal even if Texas loses the case.
"It is so important to the vast majority of higher education institutions to be able to assemble the kind of student body that they think best fits their mission," she says.
Some of those who have petitioned the court on Fisher's behalf say colleges don't deserve that freedom. They argue that Jews, Asian Americans and others have been discriminated against in the past because of their academic talents, and nothing prevents such discrimination from extending to others in the future.
"Over their history, colleges and universities have often fallen prey to fashionable race discrimination," says a brief submitted by California and Connecticut faculty members and scholars, among others, who urge the court to overrule the University of Michigan decision. "Consequently, they are unlikely candidates to receive special deference on matters of race."
Colleges would probably turn to race-neutral alternatives used by public universities where affirmative action has been banned, Meloy says.
Already, public universities in Texas, California and other states have stepped up recruitment in high schools where the student body is made up predominantly of underrepresented minorities, established partnerships with schools to improve the pipeline of minority students, and established scholarships.
The University of Georgia, Texas A&M University and the University of California system have dropped preferences for children of alumni, which tend to favor white students from relatively affluent families.
Colleges also might de-emphasize or eliminate an admissions requirement for standardized test scores, on which black and Hispanic students tend to score lower than white and Asian students.
In a study this month by the non-profit Century Foundation, author Richard Kahlenberg argues universities should accept that affirmative action has run its course and replace racial preferences with class-based preferences. Schools could put more weight on factors such as parental income, parents' education levels and resources available in the community where they live, he says.
Studies of the University of California system, where racial preferences have been banned since 1996, suggest that such measures alone would not be sufficient. At the University of California-Los Angeles, for example, African-American students represented 6.7% of its freshman class in 1995, but only 3% in 1998 and 3.6% last year despite multiple race-neutral strategies.
"All of our efforts in terms of outreach have not made an impact," says Youlonda Copeland-Morgan, associate vice chancellor of enrollment management. "Race matters."
In Del Valle, Texas, a predominantly black and Hispanic community east of Austin, Del Valle High School college counselor Sarah Mabry says many of her brightest students have overcome great obstacles to get to the point where they would even consider applying to a prestigious school such as the University of Texas.
"Let's give everybody the chance they deserve," she says. "For God's sake, this is America."
That's just why others argue against racial preferences — to protect the rights of Fisher and others who they say are victims of discrimination when universities ignore their superior qualifications.
"Nowhere in the Constitution or the Declaration of Independence does the word 'diversity' appear," a group of Texas faculty members argue in a brief supporting Fisher. "There is no constitutional basis for the courts, let alone a state university, to engage in such a radical restructuring of America, allocating education, jobs and contracts based on race."
If the Texas plan is declared unconstitutional, Marie Bigham, director of college counseling at the highly diverse Greenhill School in the Dallas suburb of Addison, predicts a chilling effect.
"My students of color, I worry they're going to say that 'these places don't value what I bring,'" she says. White students, too, will look elsewhere, she says. "When my students are shopping for colleges, (diversity) is an important data point for them. We're going to lose out on a lot of great kids."
Among those either siding with Fisher or making the case against affirmative action programs are scholars who argue that racial preferences hurt those they are supposed to help.
Gail Heriot, one of three members of the U.S. Commission on Civil Rights to file a brief supporting Fisher, points to studies showing that minority students frequently falter at the toughest schools and in the most rigorous fields of study. Admitting them to Princeton rather than Penn State isn't always in their interest, she says.
"Grades matter more ... than eliteness of law school," says Heriot, a law professor at the University of San Diego School of Law. Minority students, she says, often should "thumb their nose at Princeton and go to a school where they're going to be a success."
That's the view of Richard Sander, a UCLA law professor and economist who studies the effects of racial preferences. He argues in his book, Mismatch, co-authored with Washington journalist Stuart Taylor Jr., that generous preferences from elite schools often doom students to failure.
"Our whole focus is on what will work," Sander says. "We're trying to make this a pragmatic discussion. It's been a very ideological discussion."
On the other side, the 73 briefs filed in support of the university's position include those from business executives, government officials and retired military leaders who say their fields need college affirmative action programs to provide a stream of qualified minority applicants. Several cite a 2009 study by retired Princeton University president William Bowen that shows low-income and minority students who enroll in academically demanding institutions are more likely to graduate than students with similar academic qualifications who enroll in less challenging colleges.
A brief filed by several Fortune 100 companies argues that affirmative action programs are "more important today than ever" because of a "country and world economy that are increasingly diverse."
Another filed by former military leaders, including Colin Powell, Michael Mullen and Wesley Clark, warns that ending the practice "would seriously disrupt the military's efforts to maintain military cohesion and effectiveness."
An end to racial preferences also would come as a setback to Sweatt's descendants — among them his daughter, who is a pathologist; another nephew, who is a doctor; and a 13-year-old grandson, who will be in court taking copious notes for his school newspaper.
"If you have to ask somebody, 'Do we need affirmative action?' then I think that answers the question itself," says nephew Heman Marion Sweatt II.
Fisher, who graduated this year from Louisiana State University and is working in Austin as a financial analyst, couldn't disagree more.
"If people say anything about me, I hope they say I didn't take this sitting down," she says in the video. "I didn't accept the process, because the process is wrong."
The spirit of the late Heman Sweatt will be inside the Supreme Court this week when the justices consider whether the University of Texas-Austin campus that he first integrated in 1950 has carried its system of racial preferences too far.
That's the argument posed by Abigail Fisher, who contends that her application for admission in 2008 was rejected because of her skin color: white.
Sweatt probably could relate to that. He sued the university after being blocked from admission in 1946 because he was black. Today, his descendants say, racial preferences are still needed to guarantee equal opportunities for minorities.
Both sides will be in court Wednesday when the justices take up Fisher v. University of Texas and the underlying issue of affirmative action that still divides the nation -- more than a half-century after Sweatt made civil rights history.
"Fisher gives the Supreme Court the opportunity to clarify the boundaries of race preferences in college admissions — or, perhaps, eliminate them altogether," says Edward Blum, director of the Project on Fair Representation, which fights in court against the use of racial and ethnic preferences.
The court has taken a turn to the right since its last ruling upholding affirmative action in 2003. Five justices are on record opposing the practice. That could mean defeat for the university — and, possibly, a sweeping declaration that racial preferences are unconstitutional, not only at public universities but also at private schools such as Harvard and Yale because they receive federal funds.
"I would hate to see that happen," says Heman Marion Sweatt II, 62, a nephew of Heman Sweatt and a University of Texas graduate. "A lot of people feel that affirmative action is not needed anymore. I would love to see the day when affirmative action is not needed, but realistically, it still has to be dealt with."
On the flip side of that argument is Fisher, a plain-spoken young Texan denied entry into her father's and sister's alma mater. She says racial preferences made her a victim of discrimination.
"There were people in my class with lower grades who weren't in all the activities I was in who were being accepted into UT, and the only other difference between us was the color of our skin," she says in a video posted by the Project on Fair Representation to make its case. "For an institution of higher learning to act this way makes no sense to me."
The vast majority of higher education groups say it makes a great deal of sense. In brief after brief submitted to the Supreme Court in support of the Texas flagship university, organizations representing nearly all facets of higher learning – including public research universities, Ivy League schools, undergraduate and law students, even college basketball coaches – argue that colleges and universities must be allowed to consider race and ethnicity in admissions to achieve the educational benefits of a diverse student body. Some say nothing less than the nation's future is at stake.
The United States "is in the midst of a perfect storm of economic crisis, rapidly shifting demographics and lagging educational achievement compared to other nations," says University of Missouri higher education professor Roger Worthington, editor of the Journal of Diversity in Higher Education. "If we do not fix the underlying educational disparities that exist in this country, there is no path forward to regaining our competitiveness on educational or economic grounds."
Denied because 'he is a negro'
Before the landmark Brown v. Board of Education case of 1954 — the unanimous court decision striking down public school segregation — and a series of cases on racial preferences leading up to Fisher, there was Sweatt v. Painter.
It was a simple case. Sweatt had sued the university and its president, Theophilus Painter, for denying him admission to the UT law school in 1946 because, as Painter pointed out at the time, "of the fact that he is a negro."
To represent him before the Supreme Court, Sweatt chose Thurgood Marshall, who would go on to become the court's first black justice. He won the case based on another "fact" — that he could not get an equally sound legal education elsewhere in Texas. It was the first time the court had ordered a black student admitted to an all-white institution.
Sweatt left the law school before graduating, the victim of chronic health problems and a divorce. But his case may be more relevant to the court's consideration of Fisher than most of the cases that have followed, including Brown.
Today, those rulings have become victims of their own success. Schools and universities have grown more integrated, however haltingly. In Grutter v. Bollinger, the court's 5-4 decision upholding the University of Michigan Law School's limited use of affirmative action, Justice Sandra Day O'Connor predicted, "The Court expects that 25 years from now, the use of racial preferences will no longer be necessary to further the interest approved today."
The Michigan case wasn't a slam dunk for the civil rights movement. At the same time, the court ruled 6-3 against the university's more numerical system of racial preferences for undergraduate admissions. And the O'Connor decision included a dissent from Justice Anthony Kennedy that takes on added weight today: Since her retirement, he has become the swing vote.
"Preferment by race, when resorted to by the state, can be the most divisive of all policies, containing within it the potential to destroy confidence in the Constitution and in the idea of equality," Kennedy wrote in Grutter.
Kennedy's significance as the man in the middle hasn't been lost on lawyers for Fisher and the university. They mention him by name 50 times in their three main briefs.
Fisher's lawyers contend that the university seeks "racial balancing," something Kennedy clearly doesn't sanction. "Racial balance is not to be achieved for its own sake," he wrote in a Georgia desegregation case in 1992.
The school's lawyers point out that in using race as one factor, the university isn't resorting to quotas or numerical targets, which Kennedy disavowed in his Grutter dissent. They say the lawsuit "is just asking this court to move the goal posts on higher education in America and overrule its precedent going back 35 years."
The makeup of today's court is notable for other reasons. O'Connor's replacement is Justice Samuel Alito, a firm conservative who argued against affirmative action in the 1980s while serving in the solicitor general's office under President Ronald Reagan. On the left, Justice Sonia Sotomayor has called herself a "product of affirmative action" because of her admission into prestigious Ivy League schools despite less than stellar test scores. Justice Elena Kagan has recused herself from the case because of her previous involvement as solicitor general in 2009-10.
Colleges could 'lose out on a lot of great kids'
If the Supreme Court rules that the university went too far in using racial preferences, most experts predict the campus could see a drop in black and Hispanic enrollments, just as it did after the 5th Circuit Court outlawed a race-conscious admissions policy used by the University of Texas School of Law in 1996. A year later, state legislators created the "Top 10 Percent" plan, through which students in the top 10% of their high school graduating class are automatically admitted to the state university of their choice.
That law has helped schools boost racial diversity, primarily because most of the state's public high schools are segregated by race and ethnicity, but not enough to achieve a "critical mass," school officials said. After the Supreme Court upheld the University of Michigan's affirmative action program, the University of Texas again began factoring race into admissions.
If the justices decide more broadly that extra measures designed to boost racial and ethnic representation on campus are unconstitutional or no longer necessary, the nation's most selective universities, public and private, will lose a long-standing tool aimed at furthering their mission to prepare a diverse pool of well-trained graduates for leadership roles.
A ruling against the University of Texas, or more broadly, the consideration of race in admissions, also threatens to upend a tradition by the court of deference toward university decision-making, says
Ada Meloy, general counsel of the American Council on Education, a non-profit umbrella group that represents higher education institutions in Washington. She says colleges will remain committed to that goal even if Texas loses the case.
"It is so important to the vast majority of higher education institutions to be able to assemble the kind of student body that they think best fits their mission," she says.
Some of those who have petitioned the court on Fisher's behalf say colleges don't deserve that freedom. They argue that Jews, Asian Americans and others have been discriminated against in the past because of their academic talents, and nothing prevents such discrimination from extending to others in the future.
"Over their history, colleges and universities have often fallen prey to fashionable race discrimination," says a brief submitted by California and Connecticut faculty members and scholars, among others, who urge the court to overrule the University of Michigan decision. "Consequently, they are unlikely candidates to receive special deference on matters of race."
Colleges would probably turn to race-neutral alternatives used by public universities where affirmative action has been banned, Meloy says.
Already, public universities in Texas, California and other states have stepped up recruitment in high schools where the student body is made up predominantly of underrepresented minorities, established partnerships with schools to improve the pipeline of minority students, and established scholarships.
The University of Georgia, Texas A&M University and the University of California system have dropped preferences for children of alumni, which tend to favor white students from relatively affluent families.
Colleges also might de-emphasize or eliminate an admissions requirement for standardized test scores, on which black and Hispanic students tend to score lower than white and Asian students.
In a study this month by the non-profit Century Foundation, author Richard Kahlenberg argues universities should accept that affirmative action has run its course and replace racial preferences with class-based preferences. Schools could put more weight on factors such as parental income, parents' education levels and resources available in the community where they live, he says.
Studies of the University of California system, where racial preferences have been banned since 1996, suggest that such measures alone would not be sufficient. At the University of California-Los Angeles, for example, African-American students represented 6.7% of its freshman class in 1995, but only 3% in 1998 and 3.6% last year despite multiple race-neutral strategies.
"All of our efforts in terms of outreach have not made an impact," says Youlonda Copeland-Morgan, associate vice chancellor of enrollment management. "Race matters."
In Del Valle, Texas, a predominantly black and Hispanic community east of Austin, Del Valle High School college counselor Sarah Mabry says many of her brightest students have overcome great obstacles to get to the point where they would even consider applying to a prestigious school such as the University of Texas.
"Let's give everybody the chance they deserve," she says. "For God's sake, this is America."
That's just why others argue against racial preferences — to protect the rights of Fisher and others who they say are victims of discrimination when universities ignore their superior qualifications.
"Nowhere in the Constitution or the Declaration of Independence does the word 'diversity' appear," a group of Texas faculty members argue in a brief supporting Fisher. "There is no constitutional basis for the courts, let alone a state university, to engage in such a radical restructuring of America, allocating education, jobs and contracts based on race."
If the Texas plan is declared unconstitutional, Marie Bigham, director of college counseling at the highly diverse Greenhill School in the Dallas suburb of Addison, predicts a chilling effect.
"My students of color, I worry they're going to say that 'these places don't value what I bring,'" she says. White students, too, will look elsewhere, she says. "When my students are shopping for colleges, (diversity) is an important data point for them. We're going to lose out on a lot of great kids."
'I didn't take this sitting down'
Among those either siding with Fisher or making the case against affirmative action programs are scholars who argue that racial preferences hurt those they are supposed to help.
Gail Heriot, one of three members of the U.S. Commission on Civil Rights to file a brief supporting Fisher, points to studies showing that minority students frequently falter at the toughest schools and in the most rigorous fields of study. Admitting them to Princeton rather than Penn State isn't always in their interest, she says.
"Grades matter more ... than eliteness of law school," says Heriot, a law professor at the University of San Diego School of Law. Minority students, she says, often should "thumb their nose at Princeton and go to a school where they're going to be a success."
That's the view of Richard Sander, a UCLA law professor and economist who studies the effects of racial preferences. He argues in his book, Mismatch, co-authored with Washington journalist Stuart Taylor Jr., that generous preferences from elite schools often doom students to failure.
"Our whole focus is on what will work," Sander says. "We're trying to make this a pragmatic discussion. It's been a very ideological discussion."
On the other side, the 73 briefs filed in support of the university's position include those from business executives, government officials and retired military leaders who say their fields need college affirmative action programs to provide a stream of qualified minority applicants. Several cite a 2009 study by retired Princeton University president William Bowen that shows low-income and minority students who enroll in academically demanding institutions are more likely to graduate than students with similar academic qualifications who enroll in less challenging colleges.
A brief filed by several Fortune 100 companies argues that affirmative action programs are "more important today than ever" because of a "country and world economy that are increasingly diverse."
Another filed by former military leaders, including Colin Powell, Michael Mullen and Wesley Clark, warns that ending the practice "would seriously disrupt the military's efforts to maintain military cohesion and effectiveness."
An end to racial preferences also would come as a setback to Sweatt's descendants — among them his daughter, who is a pathologist; another nephew, who is a doctor; and a 13-year-old grandson, who will be in court taking copious notes for his school newspaper.
"If you have to ask somebody, 'Do we need affirmative action?' then I think that answers the question itself," says nephew Heman Marion Sweatt II.
Fisher, who graduated this year from Louisiana State University and is working in Austin as a financial analyst, couldn't disagree more.
"If people say anything about me, I hope they say I didn't take this sitting down," she says in the video. "I didn't accept the process, because the process is wrong."
Tuesday, October 16, 2012
Executive Claiming He Was Held Captive
William Koch held a senior executive of his Oxbow energy company captive for almost two days after discovering his concerns about a plan to avoid U.S. taxes on $200 million in profit, the now ex-employee claimed in a lawsuit.
Former Oxbow Senior Vice President Kirby Martensen alleged that an unrelated company probe revealed his misgivings over the purported effort by Oxbow Carbon & Minerals LLC. As a result, Martensen said, he was falsely imprisoned by Koch’s agents and interrogated at a remote Colorado estate as part of an attempt to intimidate him. He was also fired, he said.
Koch, who Forbes estimates is worth about $4 billion, is the brother of conservative Tea Party funders David Koch and Charles Koch. Martensen, promoted last year to senior vice president, said he was lured to the billionaire’s “Bear Ranch” near Aspen in March on false pretenses and questioned about anonymous allegations of wrongdoing made against him tied to a kickback scheme. The company sued him over the claims in Florida state court March 22, while he was allegedly being held against his will in Colorado.
Based on this surreptitious review of plaintiff’s e-mails and voice communications, Koch learned that Martensen and others expressed concern of the legality of what they were doing on behalf of Oxbow and their distrust of upper management, Martensen said in a complaint filed Oct. 11 in San Francisco federal court. As a result, William Koch promoted and implemented a plan to intimidate and discredit plaintiff for the purpose of chilling his speech and damaging his credibility.
Coal Deposits
Koch, 72, who made his fortune partly by developing underground coal deposits in Somerset, Colorado, maintains a working cattle operation at the ranch, located southwest of Aspen. Oxbow, a West Palm Beach, Florida-based petroleum coke export broker, and two affiliates have combined annual sales of more than $4 billion and more than 1,100 employees worldwide, according to the company.
In a statement posted on its website, the firm claimed that Martensen’s lawsuit was filed in response to the litigation in Florida over an alleged $40 million fraud at the company. Oxbow denied the allegations in Martensen’s lawsuit.
“In the spring of 2011, Oxbow initiated a yearlong investigation culminating in the dismissal of several executives and a civil complaint being filed last March,” the company said. “Martensen states in a lawsuit that we investigated him for participating in a wide-ranging scheme to defraud, accepting bribes and diverting business from our company. He is right. We absolutely investigated Martensen.”
Florida Suit
In the Oxbow lawsuit filed in Palm Beach County, the company alleged Martensen breached his duty to the firm.
“In or before March 2009,” Martensen and other former executives of Oxbow units participated in a “wide-ranging scheme to systematically misappropriate revenues and business opportunities” from the company, Oxbow claimed.
Martensen accepted illegal bribes, kickbacks and other payments from Oxbow competitors and “secretly shared in the payments, revenues and profits derived by plaintiffs’ competitors,” Oxbow alleged in the complaint.
The lawsuit involved sales to three Oxbow customers located in Asia that aren’t named in the complaint.
From 2009 to 2011, Oxbow “was led to believe” that more than one million metric tons of product was sold to these three clients, the company alleged. In 2011, Oxbow learned Martensen was allegedly stealing from Oxbow by receiving money from competitors to divert and resell Oxbow pet coke and coal at “substantially higher margins” to buyers in Asia, according to the complaint. Shell companies were created to try and hide the purchases, Oxbow claimed.
Tax Evasion
Martensen unsuccessfully sought to dismiss the case and has appealed to the Florida Fourth District Court of Appeal, according to court records. His lawyer in the San Francisco case, John Scott, declined to comment. His lawyers in the Florida matter couldn’t be immediately reached.
Oxbow Carbon is the largest distributor of petroleum coke in the world, with annual shipments of almost 1 million metric tons, exporting petroleum coke to markets in Europe, Latin America and Asia, according to court papers.
Martensen said his rise to senior vice president-Asia with OCM International included relocation to its Singapore office. Koch agreed to give him a 40 percent salary increase, two leased vehicles, and pay for his rent, utilities, appliances and house cleaning costs, as well as fully paying for his children’s education, according to his complaint in federal court.
Martensen claimed he “understood that the goal of this assignment was to help legitimize OCM’s Bahamian shell company. This included, but was not limited to, discussions and negotiations concerning the sourcing of pet-coke and sales to Asian customers.”
Asian Business
The executive stated that he was told his relocation to Asia was for tax purposes. More than 75 percent of Oxbow’s fuel- grade petroleum coke export profits were derived from its Asian trading business, he said in the court filing.
Martensen said in the complaint he “has information and believes this relocation was part of a plan being implemented to evade paying taxes to the U.S. on profits in excess of $200 million per year.”
Meanwhile, Koch had been notified of an anonymous letter claiming Martensen and another employee had been engaging in theft, breaches of fiduciary duty, fraud, and self-dealing against the Oxbow companies, Martensen said in the complaint.
‘Forensic Review’
“Based on this information, William Koch directed a lengthy comprehensive forensic review of thousands of documents, including the written corporate communications files (letters, memoranda, electronic corporate communications, etc.) of several employees, including Martensen,” according to Martensen’s complaint.
It was during this review that Martensen’s concerns about the alleged tax evasion plan were discovered by Koch, Martensen said.
The federal case is Martensen v. Koch, 12-05257, U.S. District Court for the Northern District of California (San Francisco). The state court case is Oxbow v. Martensen, 12-05386, Florida Circuit Court for the 15th Judicial Circuit (Palm Beach County).
Tuesday, October 9, 2012
Death Penalty Cost May Deter Supporters
Story first appeared on wsj.com.
Opponents of the death penalty are finding some unlikely allies: tough-on-crime types concerned about its cost.
Some longtime supporters of the death penalty now think the punishment should be scrapped, even as they continue to see it as a just option in heinous crimes and as an effective deterrent. They are questioning whether the occasional execution is worth the taxpayer money spent on lengthy appeals and costly lawyers for inmates, especially at a time when state budgets are strained.
This consideration is particularly keen in California, where a referendum to abolish the death penalty will appear on the ballot in November. Politicians in more conservative states also are taking another look at capital punishment, on cost grounds.
"I was a supporter and believer in the death penalty, but I've begun to see that this system doesn't work and it isn't functional," said Gil Garcetti, a Democrat who served for eight years as district attorney in Los Angeles County, which is responsible for roughly one-third of California's 727 death-row inmates. "It costs an obscene amount of money."
Many death-penalty supporters, meanwhile, agree that costs must be reined in, but they say capital punishment should be fixed instead of abolished.
"My theory is 'mend it, don't end it,' " said former California Gov. Pete Wilson, a Republican who opposes the ballot measure, Proposition 34. "The system works in many other states, and it doesn't in California because the appeals are endless."
The conflict comes amid deepening uncertainty over the death penalty, which was reinstated in many states after it was upheld as constitutional by the U.S. Supreme Court in 1976. While 33 states retain the power to sentence inmates to death, capital punishment faces a host of challenges, from the growing number of exonerations of convicts—often because of new DNA evidence—to shortages of drugs used in lethal injections.
Since 2007, the death penalty has been abolished in five states—Connecticut, Illinois, New Jersey, New Mexico and New York. And public support for capital punishment, while at 61%, is at its lowest level in 39 years, according to a Gallup poll last year, the latest available.
Use of the death penalty has dropped sharply in recent years. In 2011, 43 inmates were executed and 78 were sent to death row, down from 85 executions and 224 death sentences in 2000, according to the Death Penalty Information Center, an organization largely opposed to the way the death penalty is used in the U.S.
The latest test comes from California, where a referendum proposed by a coalition of death-penalty opponents would replace the death penalty with a sentence of life without parole for all death-row inmates. The state, which last executed an inmate in 2006, holds nearly a quarter of all death-row inmates nationwide.
Polls on Proposition 34 show Californians by a narrow margin don't want to abolish the death penalty, with significant percentages undecided.
Some supporters of the referendum point to a 2011 study co-authored by Arthur Alarcón, a federal appellate judge for the Ninth Circuit in Los Angeles, which found California had spent more than $4 billion on capital punishment since it was reinstated in 1978—about $308 million for each of the 13 executions since then. The referendum calls for devoting $100 million in budget savings over the next 3½ years into investigations of unsolved rape and murder cases.
Judge Alarcón, who was nominated to the federal appeals court by Jimmy Carter and who was a strong backer of the death penalty, admits to feeling conflicted about it now, although he hasn't wholly changed his opinion because of concerns about what more life-without-parole inmates would mean for the safety of other prisoners and guards.
Former California jurist and self-described "right-wing Republican" Donald McCartin, who died last month, became an outspoken critic of the death penalty in recent years, largely because of its costs. Judge McCartin had been known as "the hanging judge of Orange County" for having sent nine men to death row during his 15 years on the bench.
Opponents of the referendum say its supporters have overstated the financial burden of the death penalty, partly by inflating housing expenses, and that predictions of immediate cost savings are wrong. "It's funny math," says Jan Scully, the district attorney in Sacramento County, who supports the death penalty.
In California, according to the Alarcón study, the cost of housing a death-row inmate outpaces the cost of housing a general-population prisoner by $100,000 a year, primarily because death-row inmates are housed alone instead of two-to-a-cell, and they require a higher level of security.
The state, like many others, provides two lawyers to every death-eligible defendant, who are each then essentially afforded two full-scale jury trials, one to determine guilt and another to determine whether a death sentence is appropriate. The Alarcón study concluded jury selection alone in capital cases costs more than $200,000 above the amount for life-without-parole cases and that death-penalty prosecutions can cost 20 times as much as a life-without-parole case.
Death-penalty supporters in California and elsewhere argue that legislatures and courts have gone overboard in bulletproofing the system, often allowing for frivolous filings and appeals by inmates. They cite Texas and Oklahoma as states with more efficient and effective death-penalty systems, and point to Virginia's 2009 execution of John Allen Muhammad, the convicted "D.C. sniper," as an example of a death sentence administered properly. "It was six years, sentence to execution," said Kent Scheidegger, a death-penalty supporter and legal director of the Criminal Justice Legal Foundation in Sacramento, Calif. "There's no reason an appeals process needs to take longer than that."
But opponents say a smooth process like Mr. Muhammad's is a rarity. In California, it takes an average of 25 years from sentencing to execution.
"The 11 men currently on death row in Connecticut are far more likely to die of old age than they are to be put to death," said Democratic Gov. Dannel Malloy, a former death-penalty supporter, after signing the bill to end that state's death penalty in April.
In Montana, some conservatives are behind a movement to do away with capital punishment because of cost. "The death penalty is another institution of government that is wasteful and ineffective," said Steve Dogiakos, director of a group called Montana Conservatives Concerned About the Death Penalty, which has the support of a number of former and current legislators.
In Utah, a Republican lawmaker recently asked for a fiscal review of how much is being spent on capital cases. "I don't have any illusion that either the Utah legislature or the people are ready to overturn the death penalty," said State Rep. Stephen Handy, who called for the study. "But I want to start the dialogue."
Monday, October 8, 2012
Candidates Claim Transparency, But Do Not Provide Full List Of Clients
Original article appeared in BostonGlobe.com
Neither Brown, nor Warren have been completely open, and have traded charges over legal work.
Having boasted their transparency in revealing the cases and clients they have handled during their legal careers, Senator Scott Brown and Democratic challenger Elizabeth Warren have yet to produce a full list of clients. Both have dribbled out the information in recent days in ways that make it difficult for the media and the public to vet.
The issue has become a flashpoint in the campaign as Brown has tried to undermine Warren’s reputation as a consumer advocate by pointing to her work for two corporate clients.
Warren, meanwhile, has more recently countered that Brown has not been forthcoming about his work as a real estate lawyer, and needs to explain how that work may have intersected with his position as a state lawmaker in the years before he was elected to the US Senate in 2010.
After days of indicating he would release a full list of clients, the Brown campaign gave the Globe a partial list at 5:45 p.m. Tuesday. In an e-mail, the campaign promised that it was working on a full list of corporate clients, but insisted that a preliminary list of two title insurance companies, three banks, and two mortgage companies represented most of the work he performed while serving as a title agent and real estate closing attorney in Wrentham for about 25 years. His noncorporate work related primarily to wills and trusts, the campaign said.
Warren, a Harvard Law School bankruptcy specialist, released a list of 13 cases Monday night, just 15 minutes before the start of her second debate with Brown. Her campaign described those often complex cases in brief, flattering terms. But the list did not include all the clients Warren has consulted with or represented over the years that may not have appeared on court dockets.
Instead, Warren’s list was partial. She included all clients she represented since 2008, information that was already public in disclosure forms she filed when she went to Washington to lead a congressional panel and then serve in the Obama administration.
The cases she included from before 2008 were those already available from other publicly searchable databases, when she represented a client in court.
That meant her list excluded cases in which she may have consulted or served clients in other ways. A 2002 affidavit, first posted on the conservative blog Legal Insurrection, shows examples of some of those consulting clients not mentioned in Monday night’s release. That affidavit shows that among them were Dow Chemical, according to Warren’s 2002 affidavit, filed as part of another case. The campaign confirmed that Warren, an expert in bankruptcy trusts, consulted for the company, but did not provide details, citing attorney client privilege. In that period, the company set up a trust to pay plaintiffs who claimed in lawsuits that silicone breast implants had led to health problems.
Warren’s campaign would not say why it would not disclose the full list of her clients.
Their partial release of the Harvard professor’s cases moments before the debate was timed to do two things: meet a challenge Brown gave her last week to reveal all of her clients, and to challenge Brown to release his clients, so she could gain the offensive during the televised face off Monday night.
Brown has maintained he has not held anything back about his own legal work. But before releasing a partial list of clients Tuesday, he had offered only broad parameters — none in writing — about his 25-year legal career. He said at a press conference last Thursday that he served as a judge advocate general in the military and that he has also maintained a small real estate practice, run out of his home for the last seven to nine years. But in some years, Brown has earned more than $100,000 from that practice, according to public disclosure forms he filed with the state when he was a state legislator.
Claiming his legal practice was fairly simple, Brown said he does real estate closings as a title agent, before naming some, but not all, of his corporate clients .
Brown then said he would double-check the information when he got home and update the public on Friday, which he did not do.
During Monday night’s debate, moderator David Gregory mentioned that Warren had released a list of her clients, without realizing it was only partial, and asked Brown why he had not done so.
Brown insisted that he did release the information about a week ago, claiming he is a real estate attorney that represents small banks from his home office.
Warren then pointed out that there was no list, and suggested he had something to hide.
Efforts have been made to contrast Brown's work as a small title attorney against Warren's work for large corporations, such as LTV Steel who were trying to avoid paying into a retired coal miners fund.
Neither Brown, nor Warren have been completely open, and have traded charges over legal work.
Having boasted their transparency in revealing the cases and clients they have handled during their legal careers, Senator Scott Brown and Democratic challenger Elizabeth Warren have yet to produce a full list of clients. Both have dribbled out the information in recent days in ways that make it difficult for the media and the public to vet.
The issue has become a flashpoint in the campaign as Brown has tried to undermine Warren’s reputation as a consumer advocate by pointing to her work for two corporate clients.
Warren, meanwhile, has more recently countered that Brown has not been forthcoming about his work as a real estate lawyer, and needs to explain how that work may have intersected with his position as a state lawmaker in the years before he was elected to the US Senate in 2010.
After days of indicating he would release a full list of clients, the Brown campaign gave the Globe a partial list at 5:45 p.m. Tuesday. In an e-mail, the campaign promised that it was working on a full list of corporate clients, but insisted that a preliminary list of two title insurance companies, three banks, and two mortgage companies represented most of the work he performed while serving as a title agent and real estate closing attorney in Wrentham for about 25 years. His noncorporate work related primarily to wills and trusts, the campaign said.
Warren, a Harvard Law School bankruptcy specialist, released a list of 13 cases Monday night, just 15 minutes before the start of her second debate with Brown. Her campaign described those often complex cases in brief, flattering terms. But the list did not include all the clients Warren has consulted with or represented over the years that may not have appeared on court dockets.
Instead, Warren’s list was partial. She included all clients she represented since 2008, information that was already public in disclosure forms she filed when she went to Washington to lead a congressional panel and then serve in the Obama administration.
The cases she included from before 2008 were those already available from other publicly searchable databases, when she represented a client in court.
That meant her list excluded cases in which she may have consulted or served clients in other ways. A 2002 affidavit, first posted on the conservative blog Legal Insurrection, shows examples of some of those consulting clients not mentioned in Monday night’s release. That affidavit shows that among them were Dow Chemical, according to Warren’s 2002 affidavit, filed as part of another case. The campaign confirmed that Warren, an expert in bankruptcy trusts, consulted for the company, but did not provide details, citing attorney client privilege. In that period, the company set up a trust to pay plaintiffs who claimed in lawsuits that silicone breast implants had led to health problems.
Warren’s campaign would not say why it would not disclose the full list of her clients.
Their partial release of the Harvard professor’s cases moments before the debate was timed to do two things: meet a challenge Brown gave her last week to reveal all of her clients, and to challenge Brown to release his clients, so she could gain the offensive during the televised face off Monday night.
Brown has maintained he has not held anything back about his own legal work. But before releasing a partial list of clients Tuesday, he had offered only broad parameters — none in writing — about his 25-year legal career. He said at a press conference last Thursday that he served as a judge advocate general in the military and that he has also maintained a small real estate practice, run out of his home for the last seven to nine years. But in some years, Brown has earned more than $100,000 from that practice, according to public disclosure forms he filed with the state when he was a state legislator.
Claiming his legal practice was fairly simple, Brown said he does real estate closings as a title agent, before naming some, but not all, of his corporate clients .
Brown then said he would double-check the information when he got home and update the public on Friday, which he did not do.
During Monday night’s debate, moderator David Gregory mentioned that Warren had released a list of her clients, without realizing it was only partial, and asked Brown why he had not done so.
Brown insisted that he did release the information about a week ago, claiming he is a real estate attorney that represents small banks from his home office.
Warren then pointed out that there was no list, and suggested he had something to hide.
Efforts have been made to contrast Brown's work as a small title attorney against Warren's work for large corporations, such as LTV Steel who were trying to avoid paying into a retired coal miners fund.
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