Author: TSA Press

Which attorney dominated the 2019 news?

It’s time to solicit nominations for Above the Law’s annual LAWYER OF THE YEAR competition and we’ll conduct the competition as we’ve always done. Please submit your nominees to us by email (subject line “Lawyer of the Year 2019”). We will review them and pick a slate of finalists, and then you’ll vote on them in a reader poll.

The winner will past LOTY honorees that run the gamut from Chief Justice John Roberts (2012) to President Barack Obama (2008) to Bryan Wilson, “The Texas Law Hawk” (2015). Last year’s honoree, Michael Avenatti, was absolutely everywhere in 2018 from taking on presidents to trying to become one. And while he had a rougher 2019, there’s a decent argument that he was the most newsworthy attorney yet again.

What does it take to be nominated? As we’ve explained before:

What are the criteria for being our Lawyer of the Year? Since you’re doing the nominating and voting, it’s really up to you.

You can nominate a LOTY based on whatever reasoning you choose — e.g., because the lawyer in question is influential, infamous, awesome, or awful.

A few notes — we’ve laid out before: “As reflected in the past victory of Loyola 2L (2007), not all nominees need to be famous — or even named. As reflected in the past victory of Kyle McEntee and Patrick Lynch (2010), the co-founders of Law School Transparency, you can nominate multiple people if their achievements are closely related.”

The only real rules — and even these are loose — are:

• Please try to nominate actual lawyers (or, obviously, law students).
• Please try to nominate lawyers who are still living.
• Please submit all nominations via email, with this exact subject line: “Lawyer of the Year 2019.”

Let the nominations begin! Please submit your nominations by TUESDAY, JANUARY 14, at 11:59 p.m. (Eastern time). We’ll consider your thoughts and insights on the potential candidates and put out a ballot shortly thereafter to determine who will vie for the title of Above the Law’s Lawyer of the Year for 2019.

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Joe Patrice is a senior editor at Above the Law and co-host of Thinking Like A Lawyer. Feel free to email any tips, questions, or comments. Follow him on Twitter if you’re interested in law, politics, and a healthy dose of college sports news. Joe also serves as a Managing Director at RPN Executive Search.

A merger between two genetic sequencing companies has been called off in the wake of a challenge by federal regulators.

San Diego-based Illumina and Menlo Park, California-based Pacific Biosciences of California said Thursday afternoon that they were terminating a deal whereby Illumina would buy PacBio for $1.2 billion, originally announced in November 2018.

Shares of PacBio were up 2% on the Nasdaq shortly after markets opened Friday. Illumina’s shares were down about 1% on the Nasdaq.

“We believe this proposed combination would have broadened access to Pacific Biosciences sequencing technology, significant expanded and accelerated innovation and ultimately increased the clinical utility and impact of sequencing,” Illumina CEO Francis deSouza said in a statement.

The Federal Trade Commission last month took action to block the deal, with five members voting unanimously to authorize a restraining order and preliminary injunction against it. The agency alleged that Illumina was seeking to maintain a monopoly on next-generation sequencing systems and extinguish PacBio as a competitor.

“This deal threatened to let a monopolist extinguish nascent competition in a growing healthcare market: next-generation DNA sequencing,” said Gail Levine, deputy director of the FTC’s Bureau of Competition, in a statement following the companies’ Thursday announcement. “Customers across the United States and the world will now continue to benefit from the independent innovative efforts of these companies to develop faster, better and less expensive next-generation sequencing technologies.”

NGS is a rapidly growing area of diagnostics, particularly in cancers, as it enables clinicians to identify biomarkers amenable to targeted therapies. That, in turn, has enabled the development of “tumor-agnostic” drugs designed to treat tumors based on expression of genetic anomalies rather than which tissue of the body they affect.

Technically, Illumina and PacBio are involved in different areas of NGS, respectively known as short-read and long-read sequencing. Long-read NGS enables the retrieval of sequences that can be thousands of base pairs longer than those retrieved through short-read NGS. Still, while acknowledging the differences between the two companies’ technologies, the FTC still regarded the deal as anti-competitive.

Photo: Streeter Lecka, Getty Images

For as long as I’ve been practicing law in New York, judges have been tough on sentencing. Prosecutors ran the court room and set the terms for plea deals. Ninety-nine percent of the people arrested were indigent. Any misdemeanor, from urinating in the street to jumping a turnstile, resulted in bail being set and the defendant jailed for days, weeks, and even months.

But no longer will misdemeanor arrestees necessarily have bail set against them. From now on in New York, most people charged with misdemeanors will be released after arrest and given adjourn dates to return to court.

Many judges, prosecutors and politicians, steeped in the old system, are disturbed by that and complain about how “dangerous offenders” will be out on the street to commit more crime. They fear defendants won’t return to court and that New York City will become more dangerous.

But the sky is not falling. Let’s remember why this new legislation was enacted — what wrongs it’s meant to address.

The old jail-first, due-process-later system ignored the basic principle of the presumption of innocence. By jailing every indigent person charged with a crime, there’s an assumption they’re guilty. Because they couldn’t afford bail, indigent people often pled guilty just to get out of jail.

One of the criteria used to set bail was whether the person was undomiciled and had a “working phone” in his residence. That automatically disadvantaged the homeless and poor. Although that person would see a judge within 24 to 48 hours after arrest, if bail was set, that person would not see a judge again for at least seven days, if not longer. Each subsequent adjournment would be longer still, and a trial would not be scheduled for months. The maximum any defendant could get even on the worst misdemeanor is a “city year,” meaning eight months. For most people who couldn’t afford bail, pleading guilty was simply the quickest way out, not a reflection of whether they committed the crime.

Many misdemeanors relate to drug use, fare beats, and petit larcenies. They’re often crimes of poverty or substance abuse. Prison became the de facto poor house, homeless shelter, and mental institution for millions of low-level offenders.

The approach coerced thousands to take pleas. Once having developed a record, opportunities in life became more narrow, and a vicious circle began.  Employers wouldn’t hire them. Getting housing, licensing, and loans became more difficult, and pleading guilty to the next offense became that much more easy.

Kids in their late teens from poor neighborhoods developed criminal records before they graduated high school. Many dropped out.

It was a tail-wagging-the-dog approach. Setting bail and keeping poor people in jail coerced faster pleas. The upside for the court was saving money. Fewer trials, judges, court officers, and attorneys were needed in a system where 99% of arrestees pled guilty. Everyone played his part — cogs in the wheel, putting poor people in jail and churning out pleas.

It became a de facto system of preventive detention with the philosophy: If we let them out, they’ll either commit more crime or not return to court.

But just because people are poor, doesn’t mean they won’t return to court provided they’re given needed support — a metro card, a place to sleep, and a reminder from their lawyer or the court. And if they don’t return, a warrant for their arrest will issue and they’ll eventually be brought back to court involuntarily. So, what’s the big fear?

Whenever change comes to a system as deep-seated and widely ascribed to as bail, people fear the worst. Remember when a non-Italian pope was elected back in the 1980s? People thought it would mean the end of the Catholic church. Granted, the church is having its problems now, but it’s not because John Paul II was Polish.

Things change, and often for the better.

The new system forces more help for indigent defendants up front. Because the court wants them to come back to court, the state is funding more programs to help make sure indigent defendants come back. This will take the form of housing, public benefits, mental health care, or substance abuse treatment — all services better provided sooner rather than later. Post-prison was never good at this task. Maybe front-loading the burden of assisting people who’ve been arrested get better situated in life, has a better chance.

So, let’s dial down the panic. The new bail system will cause fewer people to be incarcerated, develop records, and be torn from their communities. The presumption of innocence will actually begin to mean something for misdemeanor offenses.

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Toni Messina has tried over 100 cases and has been practicing criminal law and immigration since 1990. You can follow her on Twitter: @tonitamess.

In New York, where Donald Trump is from, they call it chutzpah. The president has repeatedly ducked the process server in a defamation suit brought by Elle advice columnist E. Jean Carroll, who claims he sexually assaulted her in the dressing room at Bergdorf Goodman years ago. Now he argues in a proposed order filed Friday that the Supreme Court of New York County lacks personal jurisdiction over him because he’s not a New York domiciliary.

“[T]he Court can take judicial notice that the President of the United States has resided in the White House for the past three years,” Trump’s lawyers noted in a memorandum supporting their motion to get Carroll’s case dismissed before discovery. And indeed, Judge Deborah A. Kaplan might take judicial notice of that fact. Although Trump owns a residence, filed his taxes (one assumes), is registered to vote, and maintains substantial business ties in trust (cough-cough) in the state of New York.

Politicians routinely retain their home-state residency while representing their constituents in Washington, but Trump’s lawyers insist that he has been domiciled in D.C. for the past three years. All of his allegedly defamatory assault-denying took place outside New York, and thus he is no longer subject to personal jurisdiction in the state. They also point out that Trump changed his official domicile to Florida in September, which was before the suit was filed, but after he described Carroll as “fake news” and “not my type” and claimed never to have met her.

They even went one further, arguing, “Given that President Trump was not physically served in New York State, there are no other grounds for in personam jurisdiction under CPLR 301,” conveniently burying in a footnote the fact that he absolutely refused to be served at his New York residence, his D.C. domicile, or his lawyer’s office, and the court had to sign an ex parte order allowing Carroll to effect process by mail. Which is rather like the old trick of murdering your parents and throwing yourself on the mercy of the court because you’re a wretched orphan, but perhaps Judge Kaplan won’t notice that awkward detail.

(Judge Kaplan will notice.)

Carroll’s lawyer Roberta Kaplan (no relation) called Trump’s motion “obviously ridiculous,” describing it to the AP as “a transparent effort to avoid discovery at all costs in a case involving a sexual assault.” Which is just crazy, of course. Look at the last president who agreed to be deposed for a tort arising out of a sexual assault claim. Nothing bad happened to him, right?

OH, WAIT!

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Elizabeth Dye lives in Baltimore where she writes about law and politics.

* The criminal trial of Harvey Weinstein begins today in Manhattan. [New York Times]

* A lawyer mistakenly handed an Austin musician legal papers after he performed a gig. Maybe this musician should apply the alternate definition of shredding to these documents. [Austin Chronicle]

* A federal court has dismissed a lawsuit against the University of Texas over the removal of Confederate statues. [The Hill]

* A disgraced San Antonio attorney who allegedly stole money from clients has taken a plea deal to try and avoid jail time. [KSAT.com]

* Miley Cyrus has settled a copyright infringement lawsuit over her song “We Can’t Stop.” [Page Six]

* A law school graduate who pretended to be an attorney to work in a public defender’s office has been charged with unauthorized practice of law. At least she should be able to represent herself against the charges… [Fox News]

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Jordan Rothman is a partner of The Rothman Law Firm, a full-service New York and New Jersey law firm. He is also the founder of Student Debt Diaries, a website discussing how he paid off his student loans. You can reach Jordan through email at jordan@rothmanlawyer.com.

Parliament is in Recess until Tuesday 11th February

Constitution of Zimbabwe Amendment (No. 2) Bill Gazetted

This Bill was gazetted in a Government Gazette Extraordinary on Tuesday 31st December 2019 [General Notice 2186/2019 signed by the Clerk of Parliament, Mr K.M. Chokuda].  The Bill is available for downloading on the Veritas website [link].  Our analysis of the Bill will follow in due course.

When can the Bill be presented in the National Assembly?

The Bill cannot be presented until 31st March at the earliest.  There is a compulsory 90-day post-gazetting waiting period – section 328(3) of the Constitution provides that a Bill to amend the Constitution may not be presented in either House of Parliament unless the Speaker has given at least ninety days notice in the Government Gazette of the Bill’s “precise terms”.

Although General Notice 2186 was not signed by the Speaker and does not cite section 328(3) of the Constitution, it certainly gives notice of the precise terms of the Bill, and is probably sufficient to start the countdown to presentation of the Bill in the National Assembly on or after 31st March.  [Remember, however, that for the First Amendment to the Constitution in 2017 a notice by the Clerk was promptly followed by a notice by the Speaker – see Bill Watch 1/2017 [link].] 

Consultations with members of the public are essential under the Constitution

Section 328(4) of the Constitution obliges Parliament, immediately after the Bill has been gazetted, to start consulting members of the public about the Bill by inviting them to express their views on the proposed Bill in public meetings and through written submissions, and to convene meetings and provide facilities to enable the public to do so.

A call for written submissions can, therefore, be expected from Parliament soon.  Public meetings, however, will probably have to wait until MPs reassemble on 11th February.

Two Budget Acts Also Gazetted

Also published on 31st December 2019, in a separate Government Gazette Extraordinary, were the following two Acts, both available on the Veritas website:

Finance (No. 3) Act, 2019 (No. 13 of 2019) [link]

Appropriation (2020) Act, 2019 (No. 14 of 2019) [link]

Veritas makes every effort to ensure reliable information, but cannot take legal responsibility for information supplied.

Post published in: Featured

The sticking point was, as ever, money. The fringe parties taking part in the theatrically-named Political Actors’ Dialogue (Polad) may only have gained 2% of the vote in the 2018 elections but it was an important 2% because it meant that Mnangagwa could pretend to the outside world that he was engaged in a real dialogue with the opposition when all he was doing was fishing. Then the combined forces of 2% of the opposition came out with their demands for expenses to attend these vitally unimportant discussions when they were shown around Mnangagwa’s farm and how generously he feeds his fish.

Mnangagwa has magnanimously recognized their legitimate demands: cars, housing, wives, immunity from prosecution – all the accoutrements of signing up with Zanu PF. After all, it would help meet his promise about producing a ‘middle-income country’ – even if it is only for Zanu PF bigwigs and their acolytes.

Chamisa, who has refused to take part in the charade, has welcomed the intervention by former South African President Thabo Mbeki to try and resolve the dispute between him and Mnangagwa. But has he missed the boat? Mbeki we mean. He said he would be back in Zimbabwe by the end of the year . . . Perhaps he has been told that Mnangagwa would be too busy feeding his fish to meet him – or perhaps he realizes the boat is the Titanic.

                                                                      

Other points

• The EU has withdrawn its offer of 16 million euros in aid for the development of infrastructure to protect wildlife in the Save Valley Conservancy over the government’s reluctance to end land invasions and protect property rights. Some properties in the Conservancy are owned by investors from EU countries. The government has turned a blind eye to bilateral agreements protecting these properties.
• The British Times newspaper reports that ‘Africa’s richest woman’, the daughter of Angola’s former president dos Santos, has had her assets frozen by the new president. She is said to have corruptly amassed a fortune of more than $2 billion.
• Another article in the Times says Mugabe’s friend President Obiang, ‘the world’s longest serving president’, is now also in a pickle. His family has run through Equatorial Guinea’s oil  wealth and now wants a $283 million loan from the International Monetary Fund after a fall in oil prices. The Times says ‘the value of the IMF package equates to what Teodorin Obiang, the Vice-President, one of the President’s 42 children, spent between 2000 and 2011’.
• Thanks to those who came early to help set up the front table and put up the banners: Rosemary Maponga, Charles Mararirakwenda, Dambudzo Marimira, Benjamin Molife, Esther Munyira, Molly Ngavaimbe, Hazvinei Saili, Ephraim Tapa and Kevin.Wheeldon. Thanks to Rosemary and Hazvinei for looking after the front table, to Kevin, Molly, Rosemary and Deborah Harry for handing out flyers, to Delice for drumming and to Hazvinei for photos. Thanks also to those who brought refreshments: to Rosemary for bringing a thermos flask of hot water with milk for tea and coffee and to Molly for cakes.
• For latest Vigil pictures check: http://www.flickr.com/photos/zimb88abwevigil/. Please note: Vigil photos can only be downloaded from our Flickr website.

FOR THE RECORD: 14 signed the register.

EVENTS AND NOTICES:

• ROHR general members’ meeting. Saturday 11^th January from 11.30 am. Venue: Royal Festival Hall, South Bank Centre, Belvedere Road SE1 8XX. Contact: Ephraim Tapa 07940793090, Patricia Masamba 07708116625, Esther Munyira 07492058109.
• ROHR Valentine’s fundraising dinner dance. Saturday 15^th February from 7 pm till late. Venue: to be advised.
• The Restoration of Human Rights in Zimbabwe (ROHR) is the Vigil’s partner organization based in Zimbabwe. ROHR grew out of the need for the Vigil to have an organization on the ground in Zimbabwe which reflected the Vigil’s mission statement in a practical way. ROHR in the UK actively fundraises through membership subscriptions, events, sales etc to support the activities of ROHR in Zimbabwe. Please note that the official website of ROHR Zimbabwe is http://www.rohrzimbabwe.org/. Any other website claiming to be the official website of ROHR in no way represents us.
• The Vigil’s book ‘Zimbabwe Emergency’ is based on our weekly diaries. It records how events in Zimbabwe have unfolded as seen by the diaspora in the UK. It chronicles the economic disintegration, violence, growing oppression and political manoeuvring – and the tragic human cost involved. It is available at the Vigil. All proceeds go to the Vigil and our sister organisation the Restoration of Human Rights in Zimbabwe’s work in Zimbabwe. The book is also available from Amazon.
• Facebook pages:

Vigil: https://www.facebook.com/zimbabwevigil

ROHR: https://www.facebook.com/Restoration-of-Human-Rights-ROHR-Zimbabwe-International-370825706588551/

ZAF: https://www.facebook.com/pages/Zimbabwe-Action-Forum-ZAF/490257051027515

The Vigil, outside the Zimbabwe Embassy, 429 Strand, London, takes place every Saturday from 14.00 to 17.00 to protest against gross violations of human rights in Zimbabwe. The Vigil which started in October 2002 will continue until internationally-monitored, free and fair elections are held in Zimbabwe. http://www.zimvigil.co.uk.

Post published in: Featured

By the end of the year, former South African president Thabo Mbeki visited Zimbabwe, engaging key political players in a bid to increase stability going forward.

Fin24 takes a look at the game-changing events that characterised Zimbabwe’s economy in the past year.

150% fuel price hike

On 12 January, President Mnangagwa announced a sharp increase in fuel prices, a measure he said was meant to improve supplies as the country struggled with its worst petrol shortages in a decade.

Petrol prices were increased by some 150% overnight to among the world’s highest at US$3.31 from US$1.24 a litre and diesel prices to US$3.11 from US$1.36 a litre. The price hike saw Zimbabweans taking to the streets, in violent protests, destroying property worth millions of dollars.

The government’s response was brutal, with eight people reportedly killed after army deployment. Fuel has since gone up several times and by year end, was retailing at Z$17.44 per litre of petrol and Z$17.90 per litre of diesel.

Currency float

The fuel price hike was followed by a currency float in mid-February. The Zimbabwean government was, at last, abandoning its three-year local currency peg to the US dollar. The move effectively devalued the quasi-bond note currency from a 1:1 parity to the US dollar to 1:16.65 as at 19 December.

The impact has, however, been devastating, with Zimbabwe returning to hyperinflation, and annual inflation doubling to reach 176% in June. Finance Minister Ncube suspended the publication of annual inflation figures, which independent bodies, using statistics supplied by Zimstat, put at 481% in November.

An even bigger economic knock was to come in June after Ncube outlawed the use of foreign currency for all local transactions. This move meant shares and investments made in US dollars would now be traded in local currency only. This was a staggering blow to the market capitalisation of the Zimbabwe Stock Exchange, which saw its lowest value since 2009 after losing US$2bn in value in under two months after the foreign currency ban.

Pensioners are also facing value erosion: total assets for pension funds, which were valued at approximately US$10bn in December 2018, are now valued at approximately US$ 622m at the going exchange rate. While properties held by pension funds can be revalued to reflect closer to their former values, shares, where they have invested 40% of their funds, might take longer, if ever, to reflect their intrinsic values.

Currency shortages

The currency float was also not enough to solve foreign currency availability challenges, with more than US$1.2bn belonging to foreign suppliers and shareholders still locked in Zimbabwe. This is in addition to multilateral debt close to US$10bn. The southern African country has struggled to pay for supplies ranging from food, medical drugs, electricity, raw materials and fuel among others.

South African companies such as Eskom, SAA, Multichoice, Tongaat, PPC, Nampak, AB Inbev all have millions of dollars locked in Zimbabwe. The Zim units are not operating at full capacity amid raw material shortages. In February three gold mines owned by ZSE listed RioZim shut down operations over forex availability challenges.

Lights out

Failure to get adequate power supplies from Eskom has also compounded an already dire situation as the Zimbabwe’s main source of power can only generate a small fraction of its installed capacity.

Dwindling water levels at Kariba Dam has meant less than 200MW is being generated from an installed capacity of 1050MW. The coal powered plants at Hwange constantly break down resulting in rolling power cuts of more than 18 hours in some instances.

This has a huge bearing on industry and has reflected in reduced production at farms, factories and mines.

And then there was drought

Zimbabwe also experienced a devastating drought that left some 7.7 million people facing severe hunger as the southern African country battled one of its worst food shortages in years.

The Zimbabwe government was recently forced to relax conditions of importation of grain in order to ensure the continued availability of essential foodstuffs.

Incapacitation

This term came into prominence with employees across the economy claiming incapacitation to come to work. They claimed their incomes had seriously been eroded by inflation and currency depreciation which made it “next to impossible” for them to attend work.

Close to 500 doctors were fired for their failure to attend work for over 90 days following their claim of incapacitation.

Corruption

Having declared his intention to fight corruption, Mnagagwa ovehauled the Zimbabwe Anti Corruption Commission (ZACC) and put Judge Loice Matanda Moyo at the helm. ZACC has, however, been accused by critics of being partisian and only arresting those who would have fallen out of favour with the ruling elite.

Former Tourism minister Prisca Mupfumira became the first senior government official to be arrested for criminal abuse of office involving US$95m. She is out on bail and in December claimed she was not mentally fit to stand trial. A psychiatrist, according to her lawyer, recommended that she be given three months to recover.

The minister of state for presidential affairs responsible for monitoring and implementation of government programmes, Dr Joram Gumbo, was also arrested in November. Gumbo was accused of criminal abuse of office involving US$37m. In character with most high profile cases, Gumbo was released pending further investigations.

The latest corruption-related arrest is that of Zimbabwean Vice President Constantino Chiwenga’s estranged wife, Mary Mubaiwa, accused of externalising US$1m and laundering another US$990 000.

She is also accused of attempting to kill her husband when she accompanied him to South Africa to seek medical treatment by delaying his admission into a medical facility for more than 24 hours and subsequently attempting to disconnect his life support machine.

Post published in: Featured