Federal Judge Green Light’s Oklahoma Execution Protocol

December 24, 2014
By David Lee
OKLAHOMA CITY (CN) – Oklahoma’s new execution protocol is not cruel or unusual and the state can resume executions as soon as next month, a federal judge ruled.
U.S. District Judge Stephen Friot on Monday denied a motion for preliminary injunction from four Oklahoma death row inmates scheduled to die between January and March of 2015.
Friot found that the inmates “failed to establish any prerequisites” for the granting of an injunction, even under a “relaxed standard.”
“The court concludes that the movants have failed to establish a probability of success on the merits of any of the five claims they assert for preliminary injunction purposes,” the order states. “The court further concludes that movants have failed to demonstrate that, absent a preliminary injunction, they would suffer any non-speculative irreparable harm. The court further concludes that the balance of equities does not tip in movants’ favor.”
Halting the executions would “not be in the public interest,” Friot wrote.
The inmates claim the use of replacement execution drugs is unconstitutional, citing the pain that Clayton Lockett endured during his botched execution in April that was described as a gruesome “ bloody mess .”
Lockett was declared unconscious after being injected with midazolam in the state’s new three-drug combination. Three minutes later, Lockett began breathing heavily, writhing, clenched his teeth and strained to lift his head off of a pillow, in apparent agony. Blinds separating a viewing gallery were then lowered and Oklahoma Department of Corrections Director Robert Patton halted the execution 20 minutes later. Lockett died from a heart attack soon after.
Several states have been forced to use replacement execution drugs due to shortages of traditional execution drugs caused by anti-death penalty activists successfully asking large drug manufacturers to stop making them.
An investigation ordered by Gov. Mary Fallin concluded in September that an intravenous line in Lockett’s groin was placed improperly and covered with a sheet, resulting in the drugs pooling in his tissue instead of his bloodstream. Investigators recommended a fivefold increase in the amount of midazolam injected and more monitoring safeguards regarding injection sites on an inmate’s body.
The inmates appealed Friot’s ruling to the 10th Circuit on Tuesday.
Assistant Federal Public Defender Dale Baich in Phoenix said the use of midazolam in executions has been a concern for anesthesiologists and other medical experts.
“Our primary concern is the use of midazolam, a drug that is inappropriate for use in executions because it does not relieve pain and does not maintain prisoners at an adequate level of anesthesia,” Baich said in a statement Monday. “And because Oklahoma plans to paralyze condemned prisoners after giving them midazolam, it is likely we often will not know if the prisoners were medically and constitutionally anesthetized or if they suffered.”
Immediately after Friot’s ruling, Director Patton announced that Warner will be executed on Jan. 15, 2015. Warner was originally scheduled to die hours after Lockett.

From Courthouse News.

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Judge Rules Stanford Ponzi Investors Cannot Sue Stanford’s Attorneys for Breach of Fiduciary Duty

December 24, 2014
By David Lee
DALLAS (CN) – Investors harmed in R. Allen Stanford’s $7 billion Ponzi scheme cannot sue the Greenberg Traurig and Hunton & Williams law firms for breach of fiduciary duty, a federal judge ruled.
The Official Stanford Investors Committee and court-appointed receiver Ralph Janvey, with Krage Janvey in Dallas, sued both law firms and Miami attorney Yolanda Suarez in Dallas Federal Court in 2012, alleging legal malpractice, breach of fiduciary duty and fraudulent transfer, among other things.
They claimed the defendants aided the scheme’s success and eventual downfall by providing deficient legal services.
They said Suarez was Stanford’s chief of staff and the “protegé” of attorney Carlos Loumiet, a partner first at Greenberg and later at Hunton.
U.S. District Judge David C. Godbey granted in part the defendants’ motion to dismiss on Dec. 17, finding that the investors failed to plead an independent claim for breach of fiduciary duty.
The plaintiffs claimed the law firms breached their duties by putting Stanford’s personal interests over those of his entities in order to keep collecting on his business and legal fees and by representing the Antiguan government at the same time.
However, “These are not the kinds of conflicts that are contemplated by the cases interpreting Texas’s breach of fiduciary duty claim,” Godbey wrote in a 28-page order. “A conflict for the purposes of breach of fiduciary duty entails ‘self-dealing, deception, or misrepresentations’ in the attorney’s representation of the client. An interest in the receipt of ordinary legal fees, while no doubt a pecuniary interest, is not an improper interest, and thus cannot ordinarily support a claim for breach of fiduciary duty.”
Godbey said the cases that allow such a claim based on legal fees have more to do with improprieties with collection of fees instead of conduct in pursuit of the fees.
“The receiver alleges that Greenberg delivered substandard legal services in order to assure its continued employment by Stanford and the Stanford entities,” the order states. “This does not allege an improper pecuniary interest supporting a conflict of interest; rather, it alleges the same general interest in getting paid that underlies every legal representation, an interest that Texas courts have consistently found insufficient to support a claim for breach of fiduciary duty.”
But Godbey refused to toss breach of fiduciary duty claims against Suarez because she was a director for the Stanford entities.
“Suarez took on fiduciary duties independent of those arising from her provision of legal services,” Godbey wrote. “An officer or director may be held liable for breach of fiduciary duty ‘for acts of gross negligence, which may include the complete abdication of their responsibilities.'”
The plaintiffs claimed the defendants helped Stanford use money he raised through the sale of phony certificates of deposit to install himself as a “shadow government” in Antigua.
“[They] even helped Stanford write Antiguan laws to regulate his own business activities,” the complaint stated. “Defendants provided this assistance despite Loumiet’s knowledge of Stanford’s illicit activities and despite Greenberg’s own rampant conflicts of interest whereby it aided a private sector client (Stanford) to loan money to an impoverished, third world government (Antigua) which was the sole regulator of the client’s global business enterprises, while at the same time representing the same government in writing the laws designed to regulate their client (Stanford), for which government work Greenberg was actually paid by the client: Stanford.”
The plaintiffs claimed Greenberg helped Stanford buy his way into Antigua after he was forced to surrender his bank licenses for Montserrat in 1990. Stanford allegedly fled because he could not exert absolute control over Montserrat’s government.
“When Stanford fled to Antigua in December 1990, Antigua had the reputation of being the most corrupt island in the Caribbean, which reputation was well known to Loumiet and his partners at Greenberg, who thereafter constantly forwarded news articles about Antigua’s reputation as a cesspool of corruption, fraud and money laundering to Stanford,” the complaint stated.
Godbey dismissed with prejudice the claims for aiding and abetting fraudulent transfers. He dismissed without prejudice claims against Greenberg and Hunton for breach of fiduciary duty. He refused to dismiss claims of negligent retention and supervision.

From Courthouse News.

Texas Lawmaker Targets City’s Fracking Ban

December 24, 2014
DALLAS (CN) – Concerned by a voter-approved fracking ban in Denton, Texas, a state lawmaker wants to levy harsh fines on cities that regulate oil and gas drilling, and stop them from imposing bans without state approval.
State Rep. Phil King, R-Weatherford, filed two bills on Dec. 18 for the Legislature to consider when it is called into regular session in January. HB 539 would force cities to reimburse the state for the “probable cost” of lost tax revenue and royalty income from limiting oil and gas drilling. If approved, cities would be required to make annual payments to the state for five years.
HB 540 would require cities to ask the Texas Attorney General for permission before placing such measures on the ballot. The attorney general would decide if the measure violates any state or federal laws and if its passage “would cause a governmental taking of private property for which the Texas or federal constitution would require compensation to be paid to the property owner.”
More than 58 percent of Denton voters approved the grassroots measure on Nov. 4.
Within hours, lobbyists with the Texas Oil & Gas Association and state officials in the Texas General Land Office sued the city in separate lawsuits .
Fracking, or hydraulic fracturing, involves drilling and injecting highly pressurized fluid to break shale rocks to release natural gas. The practice has been popular in the Barnett Shale formation in North Texas, as rising energy prices have made the expensive process more profitable. Other cities in the region have tried to impose tighter regulations on fracking in the face of environmental concerns by citizens. Denton is the first city to ban it outright.
The Texas Oil & Gas Association claims that Denton’s ban “undermines” the state’s already “comprehensive” regulation of oil and gas development, and that the Texas Railroad Commission and Texas Commission on Environmental Quality have “exclusive” authority to regulate the industry.
Denton denies the allegations of preemption, and blames fracking for creating conditions “subversive of public order.”
“Such conditions include, but are not limited to, noise, increased heavy truck traffic, liquid spills, vibrations and other offensive results of the hydraulic fracturing process that have affected the entire Denton community,” according to the city’s Dec. 1 answer in to the Oil & Gas Association lawsuit. “Those conditions, all of which are generated by hydraulic fracturing, constitute a public nuisance which may be abated and future occurrences prevented by the city under its regulatory powers and are not subject to preemption as alleged by plaintiff.”
In proposing the bills, King said that other cities are looking to follow Denton’s lead.
“The last thing we need is a number of cities ending up in litigation with their citizens, with oil and gas companies, and with the state,” King told the Dallas Morning News. “What we need to do is get the policy and the state law clearly established so that everybody has certainty and understands the law and policy.”
Denton officials could not be reached for comment Tuesday evening.

From Courthouse News.

Fmr. Kaufman County JP Gets Death For Gunning Down DA’s Wife

By David Lee
December 17, 2014
ROCKWALL, Texas (CN) – A state jury Wednesday sentenced a former Texas justice of the peace to death for murdering a district attorney’s wife as “collateral damage” in his alleged killings of two prosecutors.
The Rockwall County jury began deliberating Tuesday afternoon on the sentencing of Eric Williams, 47. He was convicted on Dec. 5 after a four-day trial for the capital murder of Cynthia McClelland, wife of former Kaufman County District Attorney Mike McClelland.
The McClellands were gunned down in their home on March 28, 2013, two months after Assistant District Attorney Mark Hasse was shot to death in a Kaufman County courthouse parking lot by a masked gunman.
Prosecutors said during trial that Williams plotted to killed McLelland and Hasse after they prosecuted him in 2012 for stealing three county computer monitors. That conviction resulted in the loss of Williams’s job and his disbarment.
The prosecution’s star witness during the sentencing phase was Kim Williams, his estranged wife. She testified Tuesday that Williams planned to kill Mike McClelland during a holiday weekend when his security detail would be gone. She chillingly testified that Cynthia McClelland was killed as “collateral damage” because she was a witness to the shooting and that Williams had to shoot her again because she was “still moaning.”
Accused as the getaway driver in all three murders, Kim Williams described the couple’s joy and excitement after Hasse’s murder. She shared her husband’s anger at the prosecutor, she said.
The sentencing phase of the trial lasted two weeks, with defense attorneys calling a long line of character witnesses on Williams’s behalf. The jury deliberated for three hours Tuesday before being sequestered for the night. They reached a verdict Wednesday morning.
Visiting Dallas County Judge Mike Snipes had harsh words for Williams after his sentence was read, comparing him to Charles Manson and Jeffrey Dahmer.
“You made yourself out to be some kind of Charles Bronson, a vigilante,” Snipes said. “At the end of the day, you murdered a little old lady.”
The murders rocked the close-knit town of Kaufman and forced authorities to provide security and bodyguards for judges and prosecutors.
“Kaufman County, you’ve been scared for a few years now,” Snipes said. “There’s no reason to be scared anymore.”
Snipes had granted a change of venue from neighboring Kaufman County due to widespread publicity. Both Rockwall and Kaufman counties are directly east of Dallas County.
Williams did not testify in his defense. His attorneys claimed that the entire case was built on circumstantial evidence, with no murder weapon or eyewitnesses.
Kim Williams is awaiting trial.

From Courthouse News.

Court Documents Reveals Gruesome Details of Clayton Lockett’s Botched Execution

December 15, 2014
By David Lee
OKLAHOMA CITY (CN) – Oklahoma’s execution team created a gruesome “bloody mess” trying to tap a second femoral intravenous line during the botched execution of Clayton Lockett, court records reveal.
The horrifying details of how the April 29 execution went wrong after the blinds to the death chamber were drawn were revealed Friday.
Assistant Federal Public Defender Patti Ghezzi in Oklahoma City filed an 83-page Proposed Findings of Fact and Conclusions of Law on behalf of four death row inmates scheduled to be executed by Oklahoma in the next three months.
The men seek a preliminary injunction to stop their executions, which they call cruel and unusual.
Plaintiff Charles Warner was scheduled to die hours after Lockett, but was spared when Gov. Mary Fallin stayed his execution and ordered an investigation of Lockett’s death. Warner now is scheduled to die on Jan. 15.
An unidentified paramedic said a doctor tried to start the line in Lockett’s groin but the doctor “did not know why he was trying to start another line” and that “no one ever asked him why he was starting the other line,” according to the Findings.
“He hit the artery and blood started backing up into the IV line,” the paramedic told state investigators. “And I told him. I said [redacted] you’ve hit the artery. Well, it’ll be alright. We’ll go ahead and get the drugs. No. We can’t do that. It doesn’t work that way and then I wasn’t telling him that. I mean I wasn’t trying to countermand his authority but he was a little anxious. I don’t think he realized that he hit the artery and I remember saying you’ve got the artery. We’ve got blood everywhere.”
Warden Anita Trammell told investigators there “was no plan” for the execution team running out of execution drugs. She said “blood squirted up and got all over” the doctor’s jacket when he tried to insert a line into Lockett’s left groin and that he said he had to “get enough money out of this to go buy a new jacket.”
The Findings say “no post-stay life-saving measures were taken” after the execution was called off by Fallin, and that the team allegedly was told “not to reverse it.”
The doctor “stated he would have to take Lockett to the emergency room, but someone told [the doctor] that they would not do that,” according to the Findings. The doctor “said he could have started ‘CPR and advance cardiac life support'” and that “there are drugs to reverse midazolam.”
The paramedic echoed the doctor’s statements, that he thought lifesaving measures were not used “because the purpose of being there was to provide an execution … and we were told not to reverse it.”
Warden Trammell told investigators that after the blinds were lowered, an unidentified person was checking the electrocardiogram, whom Trammell asked if he or she was “gonna call it.”
The person declined, so Trammell asked the doctor, who “got pretty frustrated” with her, according to the Findings.
Lockett was convicted in 2000 of the rape and murder of Stephanie Neiman, 19. He was convicted of shooting her with a sawed-off shotgun and watching two accomplices bury her alive.
Warner was convicted in 1999 of the rape and murder of Adrianna Waller, the 11-month-old daughter of his girlfriend at the time.
Both men unsuccessfully sued the state in March, opposing the state’s planned use of replacement execution drugs of unknown content from unlicensed compounding pharmacies .
Several states have resorted to such measures due to shortages of traditional execution drugs caused by anti-death penalty activists successfully asking large drug manufacturers to stop making them.
During his execution, Lockett was declared unconscious after the injection of midazolam in the state’s new three-drug combination. Three minutes later, Lockett began breathing heavily, writhing, clenched his teeth and strained to lift his head off of a pillow in apparent agony. Blinds separating a viewing gallery were then lowered and Oklahoma Department of Corrections Director Robert Patton halted the execution 20 minutes later. Lockett died from a heart attack soon after.
Fallin’s investigation concluded in September that the execution failed because the first intravenous line in his groin was placed improperly and then covered with a sheet.
Trammell ordered Lockett’s groin and the line insertion area covered to “maintain Lockett’s dignity and keep his genital area covered,” the report stated. It noted that members of the execution team had felt rushed, as Warner’s execution was scheduled later in the evening.
Lockett’s attorney, David Autry, witnessed the execution and said it was “totally botched.”
“It was a horrible thing to witness,” Autry said at the time. “They should have anticipated possible problems with an untried execution protocol. Obviously, the whole thing was gummed up and botched from beginning to end. Halting the execution obviously did Lockett no good.”
Autry was skeptical of prison officials’ claims that one of Lockett’s veins had blown.
“I’m not a medical professional, but Mr. Lockett was not someone who had compromised veins,” Autry said. “He was in very good shape. He had large arms and very prominent veins.”
An independent preliminary autopsy conducted by forensic pathologist Dr. Joseph Cohen in June supported Autry’s observations. His report noted the “excellent integrity and peripheral and deep veins” for the purpose of an IV insertion. Cohen was unable to find “any significant underlying natural disease” nor a “cardiac condition” that played a role in his death by heart attack.
Lockett’s family has since sued Oklahoma officials and the compounding pharmacies that provided the execution drugs, claiming in Federal Court that Lockett was used “as a lab rat” in “a failed medical experiment” that was “a barbaric spectacle.”
Several media members also sued state officials in Federal Court, claiming the drawing of the blinds deprived them and the public of the right to observe Lockett’s final moments.

From Courthouse News.

BNY-Subsidiary Pershing on Hook in Stanford Ponzi

December 10, 2014
By David Lee
DALLAS (CN) – A federal judge refused to toss participation in breach of fiduciary duty claims against Pershing LLC, the clearing agent for R. Allen Stanford’s $7 billion Ponzi scheme.
Lead plaintiff Lynne Turk sued the wholly owned subsidiary of Bank of New York Mellon Corp. in Federal Court in 2009.
She claimed that by providing custodian and clearing brokerage services to Houston-based broker-dealer Stanford Group Company in the sale of phony certificates of deposit, Pershing incurred liability stemming from Stanford’s wrongdoing.
She alleged participation in breach of fiduciary duty, aiding and abetting violations of the Texas Securities Act, participation of aid in violating the Florida Securities Investor Protection Act and negligence.
Pershing sought dismissal, arguing it “is too far removed from the underlying wrongdoing” to be held responsible and that claims were inadequately pled.
But on Monday, U.S. District Judge David C. Godbey disagreed, and declined to dismiss the participation in breach of fiduciary duty claim.
Godbey concluded that the plaintiffs adequately pleaded the three elements required for the claim: the existence of a fiduciary relationship, Pershing’s alleged knowledge of the relationship, and its alleged awareness that it was participating in the breach of duty.
“Pershing first argues it cannot be held liable because it was not aware of the Stanford entities’ breaches of their fiduciary duties,” the 13-page opinion states. “Yet plaintiffs make a number of allegations that, when viewed in a light most favorable to plaintiffs, support a reasonable inference that Pershing knew of the underlying fiduciary breaches.”
Godbey points to the plaintiffs’ allegation that Pershing knew the Stanford entities were under investigation by the U.S. Securities and Exchange Commission and that the investments “consistently” performed better than the market.
“Plaintiffs also allege Pershing had access to SGC’s financial statements, which revealed that SGC was dependent on revenue from the sale of [Stanford Investment Bank] CDs, and would have been insolvent without those revenues and other capital contributions from Stanford and his entities,” the opinion states. “Those allegations, in combination with allegations that Pershing consistently and for an extended period of time requested that SGC receive a reputable audit, support the inference that Pershing knew SGC was violating its duties to investors.”
Godbey disagreed with Pershing’s argument that its alleged contribution to the breach was not “substantial.”
Pershing argued that “participation in” is similar to “aiding and abetting,” a liability theory that requires “substantial assistance.”
But Godbey ruled, “the court finds the distinction irrelevant here because, as previously discussed, plaintiffs allege enough facts to support a finding of ‘substantial assistance.’ Thus, having alleged Pershing was both aware of Stanford’s underlying breach of fiduciary duties and continued to provide ‘substantial assistance’ to SGC, the court finds plaintiffs have adequately stated a claim for participation in breach of fiduciary duty.” (Citation omitted.)
Godbey dismissed the Florida Securities Investor Protection Act claim, finding the plaintiffs did not identify any conduct qualifying as inducement under the law.
“Their complaint is based on a theory of liability applicable to Pershing as a behind-the-scenes actor in Stanford’s scheme,” the opinion states.
“Nowhere do plaintiffs allege that Pershing had any meaningful interfacing with Stanford investors or that it was at all active at the point of purchase of CDs.”
Godbey also dismissed the plaintiffs’ negligence claims, agreeing with Pershing that it owes no common law duty of care to the plaintiffs as a clearing broker.
“Plaintiffs do list a series of cases in which courts permitted claims to go forward against clearing brokers where it was alleged the clearing broker went beyond the provision of merely ministerial services,” the opinion states. “However, each of plaintiffs’ proffered cases pertains to the maintenance of claims based on violations of various securities laws, not on the existence of a duty of care supporting a negligence claim. In other words, there is a meaningful distinction between a clearing broker’s amenability to suit for statutory violations on one hand, and the existence of an independent duty supporting a negligence claim on the other.”
Allen Stanford was convicted of securities fraud in 2012 and sentenced to 110 years in federal prison.
Pershing could not be reached for comment Tuesday evening.
Based in Jersey City, N.J., Pershing handles more than $1.5 trillion in global client assets. It acts as clearing agent for more clients than any other firm, according to its web site.

From Courthouse News.

Environmentalists Move to Defend Denton Fracking Ban

December 8, 2014
By David Lee
DALLAS (CN) – Fracking opponents and an environmentalist group want to help a Texas city defend its fracking ban against a powerful state energy lobby.
The grassroots Denton Drilling Awareness Group and Earthworks filed a petition in intervention on Dec. 4 in Denton County District Court.
DAG’s Frack Free Denton initiative collected the required 2,000 signatures for the ban to be placed on the Nov. 4 ballot, which passed with over 58 percent of the vote.
The Texas Oil & Gas Association, a special interest group, sued the city within hours of polls closing, claiming that state law pre-empt the city’s ban, which it calls a violation of the Texas Constitution.
By TXOGA’s count, only two state agencies – the Texas Railroad Commission and Texas Commission on Environmental Quality – have exclusive powers granted by the Texas Legislature to regulate the energy industry.
The Texas General Land Office – a state agency – filed a separate lawsuit the same day in Travis County Court against the ban.
DAG and Earthworks said they plan to “provide a vigorous defense of the legality and enforceability” of the ban.
They contend they would be “seriously prejudice[d]” if TXOGA prevailed, citing their “close, continuous and integral role” in the sponsorship of the ban initiative.
“Intervenors expended extensive time and resources to secure passage of the Ordinance that TXOGA now seeks to nullify,” the eight-page petition stated. “Intervenors identified the need for a prohibition on hydraulic fracturing within Denton’s boundaries to prevent harms to the health, environment, and property of citizens within the community; participated in the drafting of the Ordinance; educated the citizens of Denton about the need for the Ordinance; educated the citizens of Denton about the need for the ballot initiative following the City Council’s refusal on July 16 to enact the Ordinance; collected signatures sufficient to get the Ordinance on the November 4, 2014, ballot; and then tirelessly advocated for its passage,” the petition states.
Earthworks said the ban passed after attempts to work with the energy industry failed, and local and state regulators allowed fracking to take place near homes, schools, parks and hospitals.
Bruce Baizel, Earthworks’ energy program director, said the industry and state chose not to respect Denton communities’ health, safety and property.
“The ban is the result,” Baizel said in a statement. “Now, rather than constructively engage with the community, they simply overlook their regulatory failure and move to overturn democracy through legal action.”
Earthworks disputes TXOGA’s argument of pre-emption, claiming the state has previously granted municipalities the right to oversee oil and gas operations.
“Texas has a longstanding tradition, however, of home rule authority over oil and gas development within municipal borders,” Earthworks said in a statement. “Comprehensive local oil and gas ordinances are in force across the state, including in nearby Flower Mound and Dallas.”
DAG president Cathy McMullen said Denton residents disputed TXOGA’s claims, as well.
“Our city has the legal power to prevent bakeries from setting up shop in residential neighborhoods,” McMullen said in a statement. “To suggest that we don’t have the legal power to similarly bar fracking, a much more dangerous process, is the height of industry arrogance.”
Land Office and TXOGA officials could not be reached for comment Sunday.
DAG and Earthworks are represented by Robert Brown with Brown Hofmeister in Richardson; Deborah Goldberg with Earthjustice in New York; and Daniel Raichel with the Natural Resources Defense Council in New York.
Raichel said Thursday the dispute “cuts to the heart of our democracy.”
“The people of Denton have voted to keep fracking away from their homes and schools-they will not be bullied by powerful oil and gas companies that want to make a profit at the expense of their health,” Raichel said. “Denton is a pioneer in Texas, but it is not alone. This community joins hundreds of others around the country – and in Texas – that are demanding the right to determine what happens within their own borders.”
In the weeks before the election, watchdog ShaleTest.org released a report stating that toxic emissions were found in the air at several area playgrounds that exceeded long-term exposure limits imposed by the state.
At sites tested in Denton, Dish and Fort Worth, levels of carcinogenic benzene exceeded levels allowed by the Texas Commission on Environmental Quality, the report said.
“Although emerging science confirms that fracking-related air pollution is a health risk, there’s no agreement yet on ‘how close is too close’,” ShaleTest director Calvin Tillman said in September. “These results suggest that sometimes ‘miles away’ can be too close.”
Denton filed its answers to the complaints last week

From Courthouse News.