TRAVESTY OF JUSTICE EDITION 2

Sometime between midnight between June 18 (Friday) and June 19 (Saturday), 1969, United States Senator Ted Kennedy drove his car off a narrow bridge causing it to overturn in Poucha Pond on Chappaquiddick Island in Massachusetts. The crash resulted in the drowning death of his 28-year-old passenger, Mary Jo Kopechne, who was trapped inside the vehicle.

The evening of June 18, 1969, Senator Kennedy left a party on Chappaquiddick Island at 11:15 PM and planned to give Kopechne a ride to a ferry landing and return to Edgartown. He made a wrong turn onto a one way bridge and skidded off of it and into the pond. Senator Kennedy swam free and maintained that he attempted to save Kopechne. Her death occurred sometime between 11:30 PM Friday and 1:00 AM Saturday when the car was discovered by an off-duty deputy sheriff at 12:40 AM Saturday.

Senator Kennedy did not report the accident until 10:00 AM on Saturday, around an hour after a diver pulled her body out of the car at around 9:00 AM on Saturday. At a court hearing on July 25th, he pleaded guilty to the charge of leaving the scene of an accident and received a two month suspended sentence.

An inquiry on January 5, 1970 determined that he had intentionally turned toward the bridge, operating the vehicle “negligently if not recklessly”. The judge stopped short of recommending charges, and a grand jury convened on April 6th and returned no indictments. On May 27, a Registry of Motor Vehicles hearing resulted in Kennedy’s driver’s license being suspended for sixteen months after the accident.

If no man is above the law, why are cases handled differently based upon who is involved?

GIVE THANKS… FOR GOOD DRAFTMANSHIP

Let us talk this time of year, to stray a bit from familly and friends, and examine two cases of folks, that should be giving thanks for skilled legal draftsmanship. We lawyers are wordsmiths, some much better than others, and I submit the following two examples to you:

BOBBY BONILLA

Bonilla, currently 60, is a retired MLB player. A six-time All Star, with a lifetime batting average of .279 and 287 home runs, Bonilla started his MLB career with the Pirates in 1986. I had the pleasure of watching him as a power hitter with the Pirates, along with Barry Bonds. After the Pirates, Bonilla played for the Mets, Orioles, Marlins, Dodgers and Mets again. Upon his release from the Mets in 1999, Bonilla was still owed $5.9 million, under an earlier deferred compensation agreement from 1994, when Bonilla was first released by the Mets. Bonilla and his agent negotiated an agreement with the Mets that would defer any further payments for 10 years and then provide for annual payments of $1,193,248, including 8% interest, from July 1, 2011 until July 1, 2035. Should Bonilla pass away before this date, the payments would then be made to his heirs.

In some circles, July 1 is called Bobby Bonilla Day, and for good reason. There is even a rap song entitled “ Bobby Bonilla Day.” The Bobby Bonilla Day payments are in addition to a $500,000 per year deferred payment deal with the Baltimore Orioles from 2004, that runs for 25 years.

A copy of the Bonilla deferred payment agreement, including addendum and payment scheduled is attached. It is proof of foresight and smart drafting.

PENNSYLVANIA’S 2020 REPUBLICAN FAKE ELECTORS

We all know that defeated President Donald Trump’s camp schemed to steal the 2020 Presidential Election by submitted false slates of Republican electors in 7 states where certified results established a Democratic victory. Those states were Arizona, Georgia, Michigan, New Mexico, Nevada, Pennsylvania and Wisconsin. In most of these states, criminal investigations or prosecutions have been initiated. As an example, Michigan is actively prosecuting these fake electors. Pennsylvania’s fake electors are protected from prosecution, as the drafter of the Pennsylvania Republican election certificates stated:

WE,THE UNDERSIGNED, on the understanding that, if, as a result of a final non-appealable Court Order of other proceedings prescribed by law, we are ultimately recognized as being the duly elected and qualified Electors for President and Vice President from the State of Pennsylvania, hereby certify the following…

Some dandy and prosecution saving language there. Compare with the Michigan fake elector certificate, which reads:

WE, THE UNDERSIGNED, being the duly and qualified Electors for President and Vice President for the State of Michigan, do hereby certify the following….

So, as the fake Michigan electors state that they are the proper electors, without any qualification whatsoever, has exposed this slate of fake electors to criminal prosecution. Attached are the Michigan and Pennsylvania elector certificates, for comparison.

Again, smart draftsmanship may well keep the fake Pennsylvania electors out of criminal prosecution. These folks should be giving deep and lasting thanks on this and all future Thanksgivings.

Additional Information:

Bonilla Contract:

Invalid Elector Slates (Link)

• Allan Opsitnick

Travesty of Justice: Edition 1

On August 5, 1987, while driving a rented BMW 316 on Tempo Road outside Tempo, Northern Ireland, actors Matthew Broderick and Jennifer Grey (his girlfriend at the time), Broderick, who was driving, crossed into the oncoming lane and collided head-on with a Volvo. The driver, Anna Gallagher, 28, and her mother, Margaret Doherty, 63, were both killed instantly.

Broderick suffered a fractured leg and ribs, a concussion and a collapsed lung. Grey’s injuries included severe whiplash, which later required surgery to avoid paralysis. Broderick later told police that he had “no recollection” of the crash and “did not know why he was in the wrong lane.”

He was charged with causing death by dangerous driving and faced up to five years in prison, but was convicted of the lesser charge of careless driving and fined £100 ($175 US).

The victims’ family called the verdict “a travesty of justice”. The victims’ brother and son, Martin Doherty, later forgave Broderick amid plans to meet him in 2003, however as of February 2012 when Broderick was cast in a Honda commercial for the Super Bowl, the meeting had yet to take place.
Two lives were ended that day and the perpetrator only had to pay a fine more akin to a littering ticket. Broderick has continued to be a high-profile actor worth millions of dollars while this family has had to live with that night for over 35 years.

What is justice? When a person’s life is taken true justice would be to reverse time so that the loss of life did not occur. As that is impossible, justice is holding the responsible person or persons at fault with appropriate punishment under the circumstances.

Easy to explain, very often impossible to achieve.

• Allan Opsitnick

War Crimes 101

WAR CRIMES 101The war in Ukraine continues on; nearly 18 months since the attack by Russia under Putin’s direction. I’ve been meaning to address what person, persons, group or other entity is potential guilty of war crimes. But first I present some basic definitions and concepts of what constitutes a War Crime. Let’s call it War Crimes 101.

Following soon will be a discussion or where the War Crimes arrow should point.

What are war crimes?

– War crimes are defined as an action carried out during the conduct of a war that violates the accepted international rules of war (IROW). The IROW are laid out by the Geneva Conventions

What are crimes against humanity?

– Crimes against humanity are defined as a deliberate act, typically as part of a systematic campaign, that causes human suffering or death on a large scale

Who determines that, or what, is there a document, treaty etc?

– War crimes are subject to the various Geneva Conventions and the Hague Conventions that have been updated multiple times over the years

Is there an indictment? How are charges proffered?

– The International Criminal Court (ICC) (headquartered in The Hague, Netherlands) can investigate and try possible war crimes at their own discretion. They are the first and only permanent international court with the jurisdiction to prosecute war criminals. The ICC was established in 2002 due to the Rome Statute. It currently has 123 member states. Russia initially signed it and subsequently withdrew their signature. Ironically, so has the United States

Is there a trial? Jury or bench? Where?

– The ICC, located in The Hague, is where the modern war crime trials are tried. The trials are presented before a panel of three Trial Judges and the prosecutor must prove beyond reasonable doubt the guilt of the accused. Judges consider all evidence and then render their verdict

How is someone arrested, detained etc?

– When the ICC conducts an investigation, if not enough evidence can be gathered, the ICC cannot proceed with a trial. If enough evidence is gathered, then a summons is issued. If the accused does not appear voluntarily, the ICC can issue an arrest warrant, but that relies on countries enacting on said warrant

• Allan Opsitnick

Civility in Elections? Nah, Why Bother

On April 4, an election was held in Wisconsin for a state Supreme Court seat. While the candidates carry no partisan labels, it was clear that the race was between liberal Janet Protasiewicz and conservative Daniel Kelly.

Protasiewicz won by a margin of 55%-45%. The result was not close.

Mr. Kelly in his post-election remarks was quite bitter. Instead of the normal civil congratulatory statement, regardless of whether the losing candidate really feels that way, Kelly stated:

“I wish…. I would be able to concede to a worthy opponent, but I do not have a worthy opponent to which I can concede.” Kelly went on to label Protasiewicz a “serial liar.”

Wow! In law there is such a thing as judicial temperament, that is the ability to be civil and reserved, regardless of circumstance. Kelly’s statements were not such an example.

On the same date, a runoff election was held for Mayor of Chicago. Brandon Johnson defeated Paul Vallas by a 51%-49% margin. The result was close.

Mr. Vallas in his concession comments was civil and gracious, stating:

“The only pathway forward in our city is together,” “…..It’s time for all Chicagoans to put aside their differences and work together to support the daunting work ahead for Chicago’s next mayor.”

That, Mr. Kelly, is how it should be done.

• Allan Opsitnick

Putin vs. Ukraine (and the rest of us)

Vladimir Putin’s unprovoked and vicious attack on Ukraine continues. Media accounts refer to Putin as the President of Russia or an authoritarian leader. Nonsense. Putin is a dictator. Pure. Simple.

Yes, recent history is replete with dictators making war against innocent people in innocent lands. Likely my eastern European ancestry comes into play at this time.

Putin’s actions are causing death and destruction to the noble Ukrainian people as well as death and hardship to Russians. Putin cares not.

Much of the rest of the world, the US, Europe and beyond, are doing what can be done to punish Putin without going too far. A delicate and nuanced dance. Reports are that Putin is hiring mercenaries to assist his own forces in killing and destruction, is considering use of tactical nuclear weapons and is sacking some of his military leaders.

Is the situation improving or not? Who knows, but it continues.

Let’s all do what we can to aid the Ukrainian people, financially or otherwise. My son and I bought a pile of Jaromír Jágr’s virtual hockey tickets, proceeds going to Ukraine aid groups. We don’t necessarily have to make a financial contribution. It seems as though if we endure higher gas prices and food prices, caused partially because of the Putin war, without complaining, whining, which sends a signal to Putin and the Ukrainians, that we are about much more than our own existence and comfort.

The phrases war crimes and crimes against humanity are mentioned. It’s time to define what a war crime is and how these crimes are prosecuted.

• Allan Opsitnick

CANADA vs. USA, at least regarding elections

I was recently perusing my internet news feed and found a CBC article about an interesting election result for Parliament in Quebec province.

Patrick O’Hara defeated an incumbent member by 286 votes in recent national elections. O’Hara’s opponent conceded and congratulated him, but soon thereafter, based on a ballot box error giving O’Hara 410 votes, rather than the correct 40, filed a judicial appeal for recount. This recount gave the incumbent, Ms. Shanahan, 18,029 and Mr. O’Hara 18,017, a difference of 12.

O’Hara was informed that he lost the election driving to his home from an introductory program of Parliament, in Ottawa. Mr. O’Hara left me speechless with his comments in response, to wit:

“There’s a feeling of… what just happened? You’re in awe and shock.” Said Mr. O’Hara. He further stated, “Every vote counts and I’m living proof”, “…. And then you’re trying to figure out who are the 13 people that didn’t make it to the voting.”

Finally, the most powerful comment of all: it was a clean contest “before, during and after.”

Note Mr. O’Hara’s words. No claim of the election stolen, systems hacked, voter fraud and the like. It was a clean contest. This from a candidate, first declared the winner, but losing the election.

Would that reaction have occurred in the US? A civil response, respecting the electoral process? I vote no way. That being said, Mr. O’Hara, if I can ever vote for you, you’ll have my vote, with respect and admiration.

• Allan Opsitnick

VETERANS DAY THOUGHTS

According to the Department of Veterans Affairs, of the 16 million World War II Veterans, about 240,000 survive today and, on average, 234 die each day.

I am lucky. My father, Joe Opsitnick, a WWII Navy vet, is alive and vital at 97. I was privileged to drive dad in the Pittsburgh Veterans Day parade on November 11 and then spend the weekend with him, my son and my cousins on an annual guys cards and more weekend.

My childrens’ other grandfather, John LoAlbo, deceased, was a WWII Navy vet as well, being born about six weeks after dad. My wife’s father, Joseph Kmetz, deceased, was a WWII Army combat vet.

It was said of the World War II generation that these were ordinary people performing extraordinary things. One cannot disagree with that statement.

There have been numerous armed conflicts after WW II and the service of all personnel must be recognized and honored.

– Allan Opsitnick

YER OUT!!!! of $500,000

As baseball season draws to a close, a brief discussion is in order regarding the intersection of law and our national pastime.

Early in the season, a defamation suit brought by veteran umpire Joe West against former major leaguer Paul LoDuca, a catcher with the New York Mets, concluded with a $500,000 award in favor of West and against LoDuca in the New York Supreme Court. Here’s what happened.

On a 2019 podcast, LoDuca said that West gave a larger strike zone to Mets’ pitcher Billy Wagner, in exchange for West using Wagner’s 1957 Chevy, when West was in town. According to LoDuca, when Wagner was on the mound and West and LoDuca were behind the plate, numerous pitches, well outside of the strike zone we called strikes.

West learned of this statement and sued. West met the elements of a successful defamation claim. The statement was untrue, the statement was “published”, i.e., made on a podcast and therefore broadcast along the internet, and harm occurred. West established that he was behind the plate on only 2 occasions in 2006 and 2007, the only seasons where LoDuca and Wager were Mets teammates and Wagner did not pitch on either occasion.

West claimed that the defamatory statement would hurt his changes of enshrinement into the Baseball Hall of Fame. West has been an MLB Umpire since 1976. The Court agreed, awarding West $250,000 for past mental anguish and $250,000 to “compensate for expenses he will need to incur in retaining a public relations firm to formulate and operationalize a sufficient reputation remediation plan.”

One should watch one’s words on a podcast.

PS – Another defamation note. Eric Coomer, an executive with Dominion Voting Systems, a major supplier of voting systems throughout the US, sued the Newsmax company for defamation. Newsmax claimed that Coomer took part in an “Antifa conference call” to fix last year’s presidential election. Coomer and Newsmax settled this case.

Newsmax issued a retraction and apology on its website, confirming that there was no evidence to its claim regarding Coomer. The full terms of the settlement between Coomer and Newsmax were not revealed, common in such cases.

Allan Opsitnick

WHOOPS!

“To err is human, to forgive is divine.” – Alexander Pope.

Let us consider the first part of Pope’s phrase. We all make mistakes; some bigger than others. Does a day pass when we make a mistake, error, boo boo, screw up or faux pas? Ok, you understand. For me, my first goof up of the day is often before I finish my morning coffee.

But we can all take solace from this monumental error. Citibank erroneously wired $500 million, by accident. And cannot recover it. Yes, that’s right. Half a billion dollars!

Citibank personnel accidentally wired almost $500 million to lenders of cosmetic maker Revlon. Citibank was Revlon’s loan agent. The actual error was around $900 million, but some firms returned the erroneous deposits. As to the $500 million payment, it was to be “only” an $8 million interest payment. Instead, the huge improper overpayment was applied to Revlon’s loans, being treated as a monstrous pre-payment. This, despite a “six eyes” security safeguard, where three people were required to review and approve the wire transfer. Despite the security measures, a contractor checked the wrong box on a digital payment form. Whoops!

Citibank sued in Federal Court in New York and lost, based on a New York rule of law known as the “discharge for value defense”. As the money was due the lenders, the mistaken overpayment did not have to be returned but was applied to the underlying debt. The Court’s ruling is on appeal and the money is frozen, but nonetheless, likely some Citibank folks are looking for employment elsewhere.

I can’t speak for you, but the fact that I didn’t shovel some snow from the walk is not such a big thing, is it?

• Allan Opsitnick