Friday, November 20, 2009

70th Installment. Mark E. Brennan, Part 3: Sentencing

Third in Mark Brennan series

For lawfully hijacking the respect the jury ordinarily reserves for the judge, the Colorado Supreme Court suspended Attorney Mark E. Brennan for a year and a day, announcing to trial attorneys in Colorado and beyond: exercise your professional judgment about how much deference your client's interests allow a biased judge, and you risk not only the reasonably contemplated mistrial and fine for contempt but your livelihood. The court is unembarrassed in signaling its solidarity with Judge Blackburn for the humiliation he suffered in his own courtroom; summarizing the case, the court admits it punishes Brennan for his supposed bad manners (his "impertinence"):

Respondent purposely challenged a federal district court judge, because he believed the judge held a bias in favor of his opponent. Ultimately, the judge found Respondent in contempt of court for his insolent behavior and disrespect for the authority of the tribunal. Yet, even after the judge entered the contempt order, Respondent persisted in his impertinent behavior.

The court flaunts its vindictive motives yet pretends to apply Colorado ethical standards against disrupting a tribunal and engaging in conduct prejudicial to the administration of justice. Judge Blackburn had admitted the record doesn't support his conclusions, and the same holds for the ethics court, allowing the verdict to avenge Brennan's "impertinence," instead of reflecting the evidence: "Simply recounting Brennan's myriad and varied transgressions does not adequately capture the pervasiveness and the magnitude of his prejudicial behavior," Judge Blackburn had written.

Mark Brennan did what any trial attorney must try to do when confronting a trial judge biased against his client yet acting within his discretion: he replaced the judge at the pinnacle of the jury's respect. The maneuver's difficulty is attested by the contempt citation Brennan earned in its execution, but the possibility of this maneuver's success preconditions a real jury trial. Standing for prohibiting success in this subtle encouragement to a jury's moral mutiny, officer-of-the-court jurisprudence would guarantee the judge his respect by right, when the law only gives the judge every procedural advantage to maintain it.

Brennan tried to introduce his deposition of the jury foreman as evidence in the discipline case, but the court didn't allow it; Brennan's success was his real transgression. The tenor of the jury-foreman's exculpation:

You were absolutely polite. You tried your best. I know you did. You could tell. The other jurors could tell that you did. You didn't disrupt the trial in our hearing... ¶ But as far as the jury impression, no, it was a clash of styles. You were not impolite. You were an absolute gentleman. (Dillingham Deposition, January 2009, 54: 6 -- 14.)

Brennan had won over this jury, despite the court's bias. When the jury foreman heard of the original verdict's partial revocation, she perceived it as "an attack on me, and … an attack on the jury... [A]n attack on a jury that he portrayed as so ignorant and so naive that we could not see through the BS that was going on to get to the question ..." The pedestal where jurors put the judge, which courtroom procedure takes such pains to construct and repair, was leveled: "I would like to sue for libel. ... This is a judge that I told everybody I met I thought was the epitome of what a good judge should be.... It was Alice down the rabbit hole." (21: 7 -- 12.)

Courtroom justice involves delicate balances, and among the balanced factors is the right of an attorney to try to turn the jury's respect away from a biased judge. Officer-of-the-court jurisprudence, enforced by the state bars, is an aberration threatening to become the rule which emasculates the jury trial.

Wednesday, November 4, 2009

Interlude 16. The Ronald N. Gottschalk Matter: State Bar Incompetence or Collusion

In the 2nd Installment I opined that the State Bar's incompetence overshadowed even its malice:
These Installments cannot directly prove the State Bar's penchant for unjust prosecution, even in a single case. They do not target injustice as such because, in truth, injustice is not the basic problem. From what I have learned through dealing with the State Bar, failure to prosecute and insufficiency of charges are as likely as overzealousness to define the State Bar's performance. These Installments should not convince readers that State Bar biases produce harsh outcomes but rather that the incompetence of the State Bar is so extreme that the Bar machinery will necessarily produce the wrong outcome. Incompetence more than overzealousness is the defining trait of the California State Bar, and such incompetence benefits no one except the guiltiest.
kanBARoo court focuses on wrongful prosecution rather failure to prosecute. We shouldn't encourage the State Bar in any prosecutions because its integrity and competence can't be vouchsafed, and even the most culpable deserve better; but perspective requires recognizing the laxity interpenetrating harshness in a broad picture of incompetence. A particularly troubling laxity ramification is the possibility that the State Bar will delay prosecution of some of the most corrupt attorneys as remuneration for informing on other respondents.

Case in point the Ronald Norton Gottschalk case. In Interlude 8 I warned the public about this attorney, whom I termed a "legal predator," and I also noted that he eagerly played State Bar stooge when he threatened kanBARoo court with a RICO suit. Gottschalk was recently arrested on embezzlement charges. While his guilt remains for proof in court, the standard of proof for enrolling an attorney inactive (an administrative suspension to avert harm to the public) is far lower than proof, and the Bar is avid in its routine imposition of these suspensions for mere procedural reasons. Yet the November 2009 California Bar Journal ( contains this amazing statement, following Gottschalk's arrest, from Gottschalk's State Bar prosecutor, Paul O'Brien:
We believe public protection demands that Gottschalk be enrolled "not entitled to practice" at the earliest possible moment.
O'Brien went on to praise Investigator John Noonen for his "dogged pursuit of the case."

These  incompetent, self-congratulatory State Bar prosecutors and cops remind of nothing more than former President Bush when he commented on the "heck of a job" his staff had performed after Hurricane Katrina. The DA has charged Gottschalk with hard embezzlement of more than $350,000. Since the standard of proof for involuntary enrollment inactive is far too low, even a State Bar prosecutor could marshal the incriminating facts:
The board may order the involuntary inactive enrollment of at attorney upon a finding that the attorney's conduct poses a substantial threat of harm to the interests of the attorney's clients or to the public. (Bus. & Prof. Code § 6007, subd. (c)(1).)
The standard of proof is simple preponderance of evidence to establish past wrongdoing and, effectively, a beyond-reasonable-doubt standard for the attorney to rebut the presumption that wrongdoing will continue:
Where the evidence establishes a pattern of behavior, including acts likely to cause substantial harm, the burden of proof shall shift to the attorney to show that there is no reasonable likelihood that the harm will reoccur or continue. (Bus. & Prof. Code § 6007, subd. (c)(2)(B).)
The State Bar allowed Gottschalk to practice until his year-later arrest, an outcome bespeaking the State Bar's incompetence or collusion.