Criminal Sentencing


John Dean was Time Magazine's cover subject more than once. (And the answer: No, Nixon could not survive Dean's testimony.)

John Dean was Time Magazine’s cover subject more than once. (And the answer: No, Nixon could not survive Dean’s testimony.)

Just like politically motivated burglars in 1972, a sad American anniversary furtively passed me by yesterday—for it was on June 17 in that year that “five men, one of whom says he used to work for the CIA, are arrested at 2:30 a.m. trying to bug the offices of the Democratic National Committee at the Watergate hotel and office complex.” (A full timeline of related events and stories, via the Washington Post, is here.)

The break-in at the Watergate and the subsequent executive branch cover-up caused turmoil from coast to coast and eventually led to the resignation of President Richard Nixon. (But also a pardon by President Gerald Ford for his secretive predecessor, an event that entirely ruined my 12-year-old birthday on September 8, 1974. I related my own experience of that pardon here.)

If you’d like to hear from someone who was intimately involved with that remarkable moment in American history, head over to San Diego in July, where the State Bar’s CLE By the Sea will feature speaker John Dean, who served as White House Counsel for President Richard Nixon for a thousand days from 1970 until 1973. (He has had other life achievements, but this is the resume line we regularly recall.)

I have never been to CLE By the Sea (I’m as surprised as you are), but this is a speaker who makes me want to break my perfect streak.

You can read more about Dean and his program here.

The pen Gerald Ford used to sign his pardon of Richard Nixon, Sept. 8, 1962. (Wikimedia Commons)

The pen Gerald Ford used to sign his pardon of Richard Nixon, Sept. 8, 1962. (Wikimedia Commons)

When many Americans, including me, think back on the infamy that emerged from the Oval Office, we also recall a few people who stepped up and spoke truth or otherwise acquitted themselves well.

Many people distinguished themselves by doing their jobs well or even going above and beyond the call of duty. Among them were Judge John Sirica, Sen. Sam Ervin, special prosecutor Archibald Cox, Attorney General Elliot Richardson, and Deputy Attorney General William D. Ruckelshaus. (And let’s not forget the Washington Post’s own publisher Katharine Graham and reporters Bob Woodward and Carl Bernstein.)

Political memories linger, and a campaign button in 1976 reminded voters of Ford's first big presidential decision.

Political memories linger, and a campaign button in 1976 reminded voters of Ford’s first big presidential decision.

Other people initially found themselves in a place that appeared ethically challenged or perhaps even illegal. And within that tawdry chapter of U.S. history, a subset of those decided to speak up and try to make things right.

John Dean was one of those people. As I’ve related before, my household and tens of thousands of others were riveted to Senate hearings at which John Dean played a historic role. We gazed in wonder at the laundry list of allegations emanating from the highest reaches of our government. It was hard not to marvel at the resolve Dean exhibited as he offered the Senate an accounting of the administration’s excesses. Others testified, but none riveted the attention as did John Dean.

John Dean when he was a young government lawyer.

John Dean when he was a young government lawyer.

In San Diego in July, Dean and his co-presenter James David Robenalt will offer insights for attorneys who may confront trouble in their own entities. As a description opens:

“As lawyer for the organization, what are the duties and obligations if a report up to the highest authority within an organization has failed and crime or fraud continue? Rule 1.13 of the Code of Professional Conduct (the ‘Model Rules’) provides that the lawyer may ‘report out’ what the lawyer knows, regardless of the duty of confidentiality imposed by Rule 1.6. And the lawyer’s duties become even more complicated if the lawyer has participated, knowingly or not, in the wrongdoing that gives rise to the reporting obligation. How then does the lawyer extricate himself or herself? When is resignation enough? When does a lawyer need to engage in a ‘noisy’ withdrawal?”

Here’s hoping you get the chance to gain some ethics education just steps from the beaches of Coronado. The complete program and a link to register are here.

A cybersecurity panel discussion offered some tips and many warnings, Fennemore Craig, Phoenix, Ariz., May 14, 2015.

A cybersecurity panel discussion offered some tips and many warnings, Fennemore Craig, Phoenix, Ariz., May 14, 2015.

How concerned should we be about the sorry results that may befall us if we suffer a cybersecurity breach?

However bad you think things could be, they’re probably going to be worse.

That’s the challenging takeaway I got from a panel discussion on cyber due diligence. It was hosted at Fennemore Craig on May 14, and it included speakers from the firm, prosecutors’ offices, and security firm Kroll.

(The June issue of Arizona Attorney Magazine contains some practical takeaways on cybersecurity preparedness. Read the complete article by attorney Paul Stoller.)

At the Fennemore event, FBI Special Agent Martin Hellmer urged attendees to consider whether their computers housing sensitive data must even “touch the Internet.” Instead, he said, “air-gapped” computers may fill your needs.

“Threats are very real and everywhere,” he said. “Chances are, if your computers are regularly on the Net, and even if you’re regularly patched, you’ve probably been hacked.”

Generations of FBI-watchers hearken back to their work tracking down bank-robbers. But Hellmer said times have changed.

“It’s a great time to be a criminal in the cyberworld. Why someone would walk into a bank today with a note and a gun, I don’t know. Instead, you could sit in the comfort of your own home and steal millions of dollars from someone on the other side of the world.”

Cybersecurity panel at Fennemore Craig, May 14, 2015, L to R: Jim Knapp, U.S. Attorney's Office; Jonathan Fairtlough, Kroll; Sarah Strunk, Fennemore Craig; Martin Hellmer, FBI; and Melvin Glapion, Kroll.

Cybersecurity panel at Fennemore Craig, May 14, 2015, L to R: Jim Knapp, U.S. Attorney’s Office; Jonathan Fairtlough, Kroll; Sarah Strunk, Fennemore Craig; Martin Hellmer, FBI; and Melvin Glapion, Kroll.

Jonathan Fairtlough of Kroll described the “common vulnerabilities and exploits”—“CVEs”—that are most often seen. They include ransomware, spearfish attacks, and “social engineering”—that is, calling customer service and claiming you “can’t find your password”; it works more often than companies like to admit.

Fairtlough added that last year’s large-scale data breaches involved ransom demands seeking bitcoin.

Kroll’s Melvin Glapion reitereated that “Every cyber problem is a human problem.” In fact, 80 percent of breaches include some form of insider (including vendors and consultants). Given that, companies must ask, “Who are we locking inside the gate?”

Another problem may arise via the BYOD movement—which urges companies to allow employees to bring their own device and to use those multiple devices to connect to company servers.

Glapion told the story of a director and screenwriter for Twilight series who refused to be on Sony Pictures’ computer system, opting instead to use their own device. That gap in security, plus a successful phishing expedition, was all that hackers needed to get access to daily updates of scenes during shooting, and even multiple versions of screenplays.

Fortunately, Glapion said, the hacking was done not by criminals with evil intent, but by fans who were obsessed with actor Robert Pattinson (and who hated his co-star Kristen Stewart).

“Those teen girls had the keys to the kingdom,” Glapion said. And your system may be just as exposed.

Also on the panel were Jim Knapp of the U.S. Attorney’s Office. He—like Kroll representatives—urged companies that had been hacked to contact the authorities.

Knapp said, “You do NOT lose control of your case if you call the feds.” Because the company is a victim, the prosecutors will keep you apprised of every step.

The prosecutor also suggested all of us to use “stock false answers” to those multiple password questions we all face. That way, “correct” and accurate answers cannot be ferreted out by hackers examining your life via social media.

Thanks and congratulations to Fennemore Director Sarah Strunk for gathering together such a helpful panel.

Here are a few images of slides from the presentation:

Cyber security Fennemore 3 presentation slideCyber security Fennemore 4 presentation slide

That's the Institute of Contemporary Art (Boston) to you and me.

That’s the Institute of Contemporary Art (Boston) to you and me.

In late March, I attended a conference at ASU that focused on the value of prison education—a topic easy to overlook, even in a high-incarceration society. (I previewed the event here.)

The conference was terrific, and you may still be able to see tweets by me and others by looking for @PEAC_ASU and the hashtag #PEC15. And as long as you’re online, be sure to follow ASU’s Prison Education Awareness Club.

The topic of education for correctional inmates is pretty specific, one that I would think does not recur in my life too often. But a recent trip to Boston threw the issue in stark relief again.

As I strolled through the Institute of Contemporary Art in that city, I was pleased to see so many compelling and provocative pieces. It is worth a stop—the longer the better—if you get the chance.

This is the Institute of Contemporary Art in Boston. Yes, it’s as cool as it looks. Yes, you want to visit.

This is the Institute of Contemporary Art in Boston. Yes, it’s as cool as it looks. Yes, you want to visit.

One particularly striking exhibition (sorry, it closes May 10) was called “When the Stars Begin to Fall.” The ICA describes it here:

“When the Stars Begin to Fall gathers 35 artists of different generations who share an interest in the American South as both a real and fabled place. Key to the exhibition is the relationship between contemporary art, black life, and ‘outsider’ art, a historically fraught category typically encompassing artists who have not received formal art training and who may have been marginalized in society. When the Stars Begin to Fall includes artworks by self-taught, spiritually inspired, and incarcerated artists alongside projects by prominent contemporary artists such as Kara Walker, Carrie Mae Weems, Kerry James Marshall, David Hammons, and Theaster Gates. It presents diverse artworks—from drawing and painting to performance, sculpture, and assemblage—unified by an insistent reference to place.”

Read more about the exhibition here.

The entire show was amazing, but I was especially struck by the work of the incarcerated artists. (That may not be a surprise, given the number of times I’ve covered corrections issues before. For instance, here is my review of the film Herman’s House, about former Louisiana inmate Herman Wallace, whom I’ve written about numerous times.)

It may be more than a coincidence that some of our most evocative art arises from people in adverse conditions. And a few artists represented in Boston cause viewers to stop and consider what we value and how fragile our sense of normalcy is.

Causing me to pause was the work of Frank Albert Jones. As I gleaned from the museum-curated detail: The artist created the drawings with colored pencils he salvaged from the accounting office of the Texas State Penitentiary at Huntsville, where Jones was an inmate at the end of his life. The pieces on display were from the late 1960s, soon before Jones’s death.

Here are photos of his pieces on display:

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Also compelling were pieces by Henry Ray Clark, as described by the museum:

“Conjuring alternate realities, Clark creates drawings populated with figures that appear to be from another planet. He builds his compositions by repeating geometric shapes to form patterns and elaborate borders around central subjects. As Clark’s titles imply, his works express feelings of isolation while humorously suggesting possible places where people can exist with their multiple identities.”

Clark also was in the Texas Penitentiary. Upon release, he got involved in Houston’s artist community and participated in community-based organization Project Row Houses. Here is some of Clark’s work:

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The work by Jones and Clark was noteworthy, but I also was struck by the artists who had never been incarcerated but whose work complements and comments on a society heavy on incarceration. Like the dedicated students in the Prison Education Awareness Club, these artists feel that prisons say a lot about us and that they have lessons to tell—about those within the walls and those without.

Among those intriguing people were video artists Kara Walker (and her video titled 8 Possible Beginnings; or the Creation of African-America, A Moving Picture by Kara E. Walker) and Lauren Kelley (and her video titled Unbleached Objects).

Kelley’s work (photo below) communicated consciously with the pieces by Frank Albert Jones on a facing wall. As the museum explained:

“Kelley’s series of videos on view are inspired by the blue and red drawings of Frank albert Jones featured in this gallery. To create these animated drawings, Kelley sourced images of miscellaneous goods on Etsy, an online marketplace for arts, crafts, and vintage items. She envisions these as ‘portraits of the playful spirits captured in the spaces Jones ornately rendered.’ The objects sourced from the free market of the internet contrast sharply with Jones’s reality as a prisoner … but they make reference to the types of mass-produced goods currently made by incarcerated individuals for large corporations.”

Prison arts Boston Unbleached Objects by Lauren Kelley_opt

Unbleached Objects by Lauren Kelley

Here are a few of the inmate-created works displayed at the March ASU conference, as described by Kyes Stevens from the Alabama Prison Arts and Education Project (click to enlarge):

And here are photos from the packed-to-the-gills room as PEAC president Jessica Fletcher opened the conference (click the photos to enlarge):

Given the wall-and-wire chasm that lies between millions of inmates and the society that imprisons them, art may be a necessary bridge. Based on the conference message, art can play a powerful role in humanizing a dehumanizing situation. And based on my visit to Boston, it can play a similarly powerful role in reminding us all of the need to remain fully human, even as we dole out justice and retribution.

US Department of Labor logoIt was only back on April 1 that a major dialogue was raised in Arizona about the negative results that flow from employee misclassification. That’s when Dr. David Weil of the Department of Labor Wage and Hour Division spoke to audiences in downtown Phoenix and elsewhere.

Dr. Weil spoke about the combination of carrots and sticks that would be brought to bear to face the challenge.

This week, we got to see a little of the stick as we read a press release. It opens:

“A nearly five-year federal investigation of illegal business practices by 16 defendants in Utah and Arizona has yielded $700,000 in back wages, damages, penalties and other guarantees for more than 1,000 construction industry workers in the Southwest, the U.S. Department of Labor announced today.”

“Consent judgments put an end to an effort by the defendants—operating collectively as CSG Workforce Partners, Universal Contracting, LLC and Arizona Tract/Arizona CLA—to claim that their workers were not employees. The defendants required the construction workers to become ‘member/owners’ of limited liability companies, stripping them of federal and state protections that come with employee status. These construction workers were building houses in Utah and Arizona as employees one day and then the next day were performing the same work on the same job sites for the same companies but without the protection of federal and state wage and safety laws. The companies, in turn, avoided paying hundreds of thousands of dollars in payroll taxes.”

You can read the entire release here. All of the targeted Arizona firms are listed at the bottom, as is the case name and caption number.

Adding to the value of the news to Arizona lawyers and others is a blog post by Labor Secretary Tom Perez himself. In it, he describes the legal action being taken in Utah and Arizona. And he gives valuable insight into the way this nefarious business gets done:

“The state of Utah was a helpful partner in the Wage and Hour Division’s investigation of these defendants, providing information from the state’s Worker Classification Coordinated Enforcement Council, an entity created by the state legislature to combat misclassification. The state ultimately outlawed the defendants’ business model by requiring workers compensation and unemployment insurance for members of LLCs. In response, the companies packed up, headed to Arizona, and set up shop under a new name, but with the same scheme.”

Perez concludes:

“The Utah and Arizona judgments send a strong, clear message: employers can’t hide behind deceptive legal partnerships to cut corners and save money on the backs of their employees. It’s our hope that this and other enforcement actions will serve as a credible deterrent that influences behavior throughout the economy. Especially in the fissured workplace, we will continue to be vigilant about protecting workers, taxpayers and law-abiding employers.”

If you represent clients in related industries, is this a wake-up call? Is misclassification as big a problem as it’s made out to be? Write to me at arizona.attorney@azbar.org.

P.S. Arizona has another close link to the Secretary: Four high-school kids from the Grand Canyon State just won an ABA award for best Magna Carta video. Among the luminaries they met in Washington DC in mid-April was Labor Secretary Perez. Here they all are:

U.S. Department of Labor Secretary Tom Perez meets with Arizona high school students who won first place in the ABA's 2015 Magna Carta video competition, April 2015.

U.S. Department of Labor Secretary Tom Perez meets with Arizona high school students who won first place in the ABA’s 2015 Magna Carta video competition, April 2015. (Full story in the June 2015 Arizona Attorney Magazine)

 

A Wade Smith Memorial Lecture on Race RelationsThe topic of a major annual talk could not have been more opportunely selected to engage audiences and communities. Policing Black Males on U.S. Campuses” is part of the issue to be addressed by a UCLA professor when he delivers ASU’s A. Wade Smith Memorial Lecture on Race Relations.

The 20th annual lecture named for Dr. Smith will be delivered by Dr. Walter R. Allen, the Allan Murray Cartter Chair in Higher Education and Distinguished Professor of Education and Sociology at UCLA.

His entire title is worth remembering: “Black Lives Matter: Hyper-Surveillance and Policing Black Males on U.S. Campuses.”

The free public presentation will be on Wednesday, April 29, 2015, 7:00 pm, at the ASU Memorial Union, Memorial Ballroom.

Seating is limited and on a first come, first served basis, and doors will open at 6:30 pm.

Given the university’s own high-profile relationship with the intersection of Black lives and policing (and which has made news nationwide), I’m surprised the school has not touted this speech from the rooftops. There may be no local audience more primed to hear this dialogue than the one in Tempe, Arizona, right now.

Dr. Walter R. Allen, UCLA

Dr. Walter R. Allen, UCLA

On the other hand, the school probably wishes the whole topic would just go away. A high-profile talk by an esteemed scholar on this very issue may be a bit of salt in the recent wounds.

In any case, below I have included more background on the event. If you plan to attend and would like to provide some photos and perhaps a guest blog post, write to me at arizona.attorney@azbar.org.

Background:

Dr. Walter R. Allen, distinguished professor of education and sociology at UCLA, will discuss the policing of African-American men on college campuses at the 20th annual A. Wade Smith Memorial Lecture on Race Relations.

Allen’s lecture, “Black Lives Matter: Hyper-Surveillance and Policing Black Males on U.S. Campuses,” will touch on the social science of incidents involving police security and black men. Allen said he chose this topic because of national news like Ferguson, Mo., even if it didn’t happen on a college campus.

Allen earned his doctorate and master’s degree from the University of Chicago in sociology and his bachelor’s degree in sociology at Beloit College in Wisconsin. Allen has done extensive research on higher education, race and ethnicity, family patterns, social inequality and the African diaspora.

Keep reading here.

Past A. Wade Smith keynotes have included Lani Guinier and Kimberlé Crenshaw, among many others.

Prison Education conference 2015-page0001

It’s beginning to look like my Friday morning will be corrections-focused.

Yesterday, I mentioned a school-to-prison pipeline symposium focused on that topic. But on the same day—Friday, March 27—an ASU student group addresses the issue of what we do with individuals once they are incarcerated. Specifically, they are focused on prison education.

(I wrote before about this annual conference on prison education.)

This Friday’s event marks the fourth annual Prison Education Conference and will be held in the Turquoise room of the Memorial Union at ASU from 10am to 4pm (with complimentary lunch included).

ASU Prison Education Awareness Club logo-page0001Below is some detail about Friday’s free conference. You can register here.

“The Prison Education Awareness Club (PEAC) presents the 4th Annual Prison Education Conference, featuring Kyes Stevens from the Alabama Prison Arts and Education Project and Judith Tannenbaum, teaching artist and author of Disguised as a Poem: My Years Teaching Poetry at San Quentin and By Heart: Poetry, Prison, and Two Lives. Alongside them, representatives from the Arizona Department of Corrections, Rio Salado Distance Learning Program, and ASU prison teaching will speak.”

I spoke with Jess Fletcher, who heads up ASU’s Prison Education Awareness Club. She indicated that given the large attendance at last year’s event, this week’s conference will be in a larger space (in the ASU Memorial Union). There are still some spots left, so RSVP here soon.

You also can follow (and Like) them on Facebook and Twitter.

ASU Law school-to-prison-pipeline town hall

I have written about the school-to-prison pipeline before, which is why I am especially pleased to see an upcoming symposium dedicated to the topic—this time focused on the pipeline’s effects in Indian Country.

The event will be this Friday, March 27, at the ASU Sandra Day O’Connor College of Law. More information is here.

Here is more background from the organizers:

The “School-To-Prison Pipeline” has been a crucial concern of parents, educators, tribal leaders, ministers, civil rights activists, lawyers and youth advocates for a number of years. Recently, it has become a major concern of the general public across our country due in large part to the spiraling statistics and the negative impact on children of color. Some advocates have defined the problem as a systematic way of syphoning children out of public schools and funneling them into the juvenile and criminal justice system. In fact, many civil rights lawyers regard the journey from “School-To-Prison Pipeline,” as the most critical civil rights issue facing our country today.

The one day event will feature panel discussions, a keynote speaker, and a town hall. The symposium and town hall will bring together individuals to discuss pipeline concerns, experts who have developed successful programs and projects across the country to address pipeline issues, and individuals and organizations from diverse backgrounds who are working toward solutions to this issue.  This symposium and town hall is currently the only American Bar Association sponsored event to focus exclusively on the “School-To-Prison Pipeline” in Indian Country.

And here are the previous stories I mentioned (here and here) that address this compelling issue.

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