New Laws and Old Truths

No doubt, all Georgians are hoping and praying that the current state General Assembly session will soon expire without any major damage being done to the people! But beware! According to the Daily Report, a bill has been introduced that would expand the numbers of judges on both Georgia appellate courts. In a double whammy, the proposed bill would also increase the court filing fee, for Georgians filing civil lawsuits, from the current $80.00 to $180.00.

In my opinion, this bill should die a merciless death before the legislative session ends! Why should we increase the numbers of judges when, according to a representative for the chief justice, the chief justice had not even requested the legislation, or any additional help! Moreover, the drastic increase in the court filing fees will continue to make it more and more difficult for the average Georgian to file a lawsuit!

So, let's hope that time runs out on this proposed bill, and others like it, so that the citizens of Georgia can breathe a little bit easier, (at least until the next session begins)!

Madoff Aide Faces Fraud and Tax Charges

An old, chauvinistic saying goes: "Behind every good man is a woman." However, as to ponzi fraud king, Bernard Madoff, maybe this old saying should read, "Behind every bad criminal is ....an accountant!"

Madoff's long-time assistant, and accountant, Daniel Bonventre, has reportedly been arrested and charged this week with federal securities fraud and tax charges. Bonventre is essentially accused of being Madoff's co-conspirator, or right-hand man, who allegedly helped his boss "cook the books" and move around all of Madoff's ill-gotten gain which had been fraudulently obtained from investors.

It remains unclear whether a "house will fall" on still other associates of Madoff. But this latest case reveals that the feds are still probing whether or not other Madoff associates are criminally culpable. It will be interesting to see what happens next in this fraud case of the century and who else may still be "behind" Madoff!

Web cams and iPhones: More Scary Cases Involving Privacy Issues!

Look, just because I'm making another post about the government and privacy issues, it doesn't mean that I'm becoming a conspiracy theorist! However, two more cases which are "in the news" should make all of us, who are lovers of freedom, a little more wary about whether or not "Big Brother is watching you!"

I. THE PENNSYLVANIA WEBCAM CASE:

The first case, in Pennsylvania, involves a school official who allegedly spied on a 15 year old student at home via a web cam installed on a school-issued laptop computer. The computers had been provided to all high school students in that school district. The family of the student has filed a lawsuit against the school district and alleged that a school official must have spied on their son because he complained to their son about his alleged unspecified inappropriate behavior while in the privacy of his own home. These allegations, if proven true, should get the attention of everyone who is concerned about government spying and invasions of privacy!

II. THE CALIFORNIA CELL PHONE SEARCH CASE:

The second case, in San Mateo County, California, involves a police search of an arrested suspect's cell phone. Supreme Court precedents generally allow the police to search a person, (and the area within their immediate control), incident to a lawful arrest. The primary purpose of this exception to the general rule (that the police should have a search warrant) is to allow the police to search an arrested person for guns or other weapons which might be used against the arresting officer, (and to prevent the destruction of evidence by the suspect). However, in this California case, the police went much further by searching a suspect's iPhone in his possession for possible evidence to be used against him. This case, in my opinion, is, admittedly, a closer case than the Pennsylvania webcam spying case. However, in my opinion, even in cases like this one, the courts should generally come down on the side of individual freedom and privacy. In other words, the courts should decide that the police must obtain a search warrant before they can search an arrested person's cell phone, laptop, or other private, information-storing electronic or computer devices.

Again, it is important to point out that the primary purpose of this warrantless search exception is to allow limited intrusions in order to protect police officer's lives. But not many police officers need to worry about a suspect using a cell phone as a weapon against them! Therefore, the courts should not allow this limited search exception for weapons to be expanded into an unlimited "fishing expedition" for evidence! To search for evidence, the police should generally still be required to obtain a search warrant from a neutral and detached magistrate! In my opinion, the Fourth Amendment of our Constitution demands it!

Even though I may be a former federal prosecutor, I still believe the police must do their jobs properly. Here's hoping that the courts in such cases will side with those who are concerned about freedom and privacy. And here's hoping that each of us will be more and more alert to the fact that "Big Brother" may be watching each of us! What do you think?

The Right to Privacy v. Electronic Monitoring of Employees' Computers

"The right to be let alone is indeed the beginning of all freedom."

-- Justice William O. Douglas

Today, I want to climb aboard the soapbox again to vent about an important matter which should concern all lovers of freedom and the right to privacy. This problem involves the growing lack of privacy in the workplace. Everywhere, employers are regularly intruding into their employees' private matters on employees' computers. According to one source, (the Center of Business Ethics, Bentley College), by 2003, 92 % of all employers were regularly conducting some form of electronic monitoring of their employees. In my opinion, some companies go too far! Many companies regularly fire employees for misuses of the internet and alleged private email misuse. Other companies go further by monitoring employees' IM chats and blogging. And other companies videotape their employees and utilize GPS satellite tracking of employees' cars and cell phones! In most cases, without clear justification, this is outrageous! In my opinion, something must be done to combat this growing problem of government and employers' intrusions into private employee matters. In short, I recommend the development of new legal standards and new criminal laws addressing the invasion of employee privacy, in terms of what employers (and the government) can and cannot do. We already have federal wiretap laws to prevent illicit electronic eavesdropping on private telephone conversations. Now, in my opinion, we also need to begin a dialogue about similar protections for private employee conversations over the internet. As Justice Douglas might conclude, the right to be let alone, including in our private email and internet chats, is an important part of our freedom! What do you think?

Auto and Product Safety Recalls v. Criminal Prosecution?

In light of all the deaths, suffocations, and amputations from poorly designed baby beds and strollers, you might justifiably wonder why the companies which manufacture such products are almost never prosecuted. The simple truth is that, in our society today, while you may see lawsuits and recalls, you will rarely see criminal prosecutions in such situations.

In my opinion, here are a few of the reasons why. First of all, most prosecutors and criminal investigators are not geered to handle such prosecutions. Even the U.S. Department of Justice lacks sufficient resources and is already overloaded with plenty of "traditional" criminal cases to prosecute. But in my opinion, as a former federal prosecutor, prosecutors nationwide can do a better job! They should more often make the time, "think outside the box," and target for prosecution those who clearly endanger our lives with defective products and automobiles.

But other challenges exist. In addition, such cases are difficult to prove. For example, unless you have a corporate insider who discloses confidential email memoranda to a government agent, it would be difficult, in most cases, to prove criminal intent. In other words, the government would need to prove that corporate executives knew their product would kill or injure, and that they deliberately concealed such evidence from the public or safety inspectors.

To further compound the difficulty in making a criminal case, often, the deaths and injuries occur years after the alleged criminal activities have occurred. This problem is present in many white collar crime prosecutions. For example, if a company pollutes the environment, by the time they are caught, years and years may have passed. The original parties responsible for the crimes may be dead and gone. Appropriately, consumer activist Ralph Nader has observed that, due to this problem of "delayed violence," which is often inherent in white collar crime, it is often difficult to bring criminal cases.

In conclusion, not all companies having safety issues deserve prosecution. And even when they do, many challenges exist to making a criminal prosecution stick against a corrupt company which knowingly produces defective products. However, in my opinion, the Department of Justice and state prosecutors nationwide should try even harder to bring criminal prosecutions in appropriate cases. After all, bad guys carry ink pens as well as guns!

New Task Force to Fight Mortgage Fraud in Georgia

I'll bet you'll never guess what the above four pictures have in common! Here's a hint: all four pictures relate to the State of Georgia, (where we, at The Goolsby Law Firm, practice law)! The simple answer is that Georgia leads the nation, (or is near the top), in the production of all four: broilers, (i.e. young chickens), along with cotton, peaches, and ...mortgage fraud! Actually, Georgia ranks only fourth in the nation as to the growing problem of mortgage fraud. But fortunately, Georgia Governor Sonny Perdue is reportedly trying to do something about it.

The Governor's office has announced plans to form a new mortgage fraud unit in the Georgia Bureau of Investigation. I can tell you from experience, as a former federal prosecutor, that such task force units are essential to combatting complex crimes involving fraud, such as mortgage fraud.

While task forces may be costly, mortgage fraud is costly, too. According to a recent estimate, the State of Georgia has lost a whopping $144 million to mortgage fraud (and bank fraud) in the past four years. Here's hoping that the State of Georgia will follow through by creating the mortgage fraud task force soon. And here's also hoping that, in the near future, Georgia will rank high only in the production of young chickens, cotton, and peaches!

"Zero Tolerance" Laws And A Twelve Year Old Student

STOP! HOLD THE PRESS! Originally, I had planned a post today about mortgage fraud. But, trust me, it can wait! Today, instead, I want to complain about another example of bureaucratic stupidity, (involving zero tolerance laws or rules), which has caught my attention! Once again, I feel compelled to climb upon the soapbox and rail against the unfortunate trend, in our society today, to lock up, (non-violent), school children through the imposition of rigid, zero tolerance policies.

The latest example involves a 12 year old New York City girl who was locked up for doodling on her desk! That's right. She simply wrote with a marker on her school desk--something to the effect of "I was here" and "I love my friends." As a result, instead of simply making her erase it and punishing her, in school, the school authorities called the police and had this poor girl carted off to jail--in handcuffs! This is outrageous!

Now, don't get me wrong. This post is not written in support of desk doodling, putting gum under desks, or otherwise violating school policies. However, this post IS written in favor of school authorities using a little more common sense when dealing with such matters!

There, I feel better! I hope this little girl will be okay. And I hope I have made my point and persuaded you that our society has become too fixated on rigid, zero tolerance laws and locking up school children.

A Goolsby "War Story:" A Case of Blind Loyalty

Loyalty is generally a noble characteristic. But would you be so loyal to your boss that you would be willing to go to jail for them? Consider the following case about misplaced loyalties.

As a former federal prosecutor, I once prosecuted a man for income tax evasion. The man was vice-president of a local car dealership. He had confessed to an I.R.S. agent that he had received unreported rebate income from a wholesale radio and stereo company which had installed the radios and other accessories in all the dealership's automobiles. The car company executive entered a guilty plea to one count of income tax evasion and was sentenced to serve 12 months in federal prison. The case seemed open and shut.

But there was more. As we later learned, the executive had agreed to take the fall for his boss, the dealership owner, who had really received the bulk of the rebate income. The rebate checks were made payable to the vice-president, (who took the rap for his boss), but the vice-president had been required by his boss to cash the checks each month and then to hand over most of the cash to the boss.

When the I.R.S. had begun an audit, the boss had persuaded his employee, the vice-president, to protect him by saying that he, (the employee), had received all the rebate income. In exchange for falling on his sword for his boss, the boss had also promised his loyal employee that he would pay his legal fees, pay his fines and back taxes, and even continue to pay his salary while he served time in prison. And believe it or not, the loyal employee bit on the hook and went to prison for his boss!

Maybe you can guess what happened next! A year later, when the employee got out of prison, his boss informed him that he was fired and that he would have to pay his own fines and back taxes! That is when the employee realized his loyalty had been misplaced. He realized his first loyalty lay with his family, not his boss. And that is when he decided to "drop a dime" on his boss by calling the I.R.S. and informing them about what he and his boss had done.

Fortunately, there is a happy, (or just), ending to this story. With the cooperation of the employee, (and a co-worker), we were able to use the employees to "make tape" with the dealership owner, who made some admissions about receiving the rebate income. I then successfully prosecuted the dealership owner for income tax evasion and obstruction of justice. He was sentenced to serve 5 years in prison!

If there is a moral to this "war story," maybe it is that, while loyalty is generally a good thing, blind loyalty to a boss can get you a year in the federal penitentiary! And no job is worth a year in a federal prison, is it?!