Author: Cynthia Kouril

You know how people like to bandy around the term “mortgage fraud”? Saying that people got “liar’s loans” and bought houses they knew they could not afford and so deserve to be foreclosed upon and evicted?

Those people never talk about predatory lending. They don’t talk about mortgage brokers who encouraged people to take out higher interest rate/no document check loans, who told them if they had trouble making the higher payment when the adjustable rate suddenly shot up in year 3, they could just refinance again and get back to the low teaser rate.

I know, I threw a mortgage broker out of my dining room when he kept trying to talk me out of a fixed rate mortgage and he gave me that exact spiel. People, believing that no bank would be so foolish as to lend to them if the bank did not think they could repay, got loans that they could barely afford at the teaser rate. When the loans reset, they could not make the payments, and defaults began, this set off a wider financial panic and then people lost their jobs, so even more loans defaulted and housing prices plummeted.

Many, many people are now underwater in their mortgages and cannot refinance. And Congress and FOX want to blame it on homeowners. They don’t want to blame it on predatory lending.

Now foreclosures are happening at an astounding rate. I was filing a motion in court on Long Island a month or so ago and I overheard the clerks talking about the new special mortgage foreclosure court. They were getting around 40 filings a day.

There are specialty foreclosure parts in most, if not all, of the counties in NY now. I know other states have special “land courts” to handle these kinds of cases. The idea is for the judges to develop expertise in the minutia of foreclosure and land recordation.

And it’s paying off. In a case where the demoralized homeowner did not even put up a fight and defaulted on a motion by the bank to foreclose upon her home, Justice Schack, in Deutsche Bank v Harris, observed that the person signing claiming to be an employee of MERS was the same person signing claiming to be an employee of the Bank. And that the Bank, MERS, and INDYMAC all claimed the same suite of offices in California to be their principal place of business. There are more cases just like this, and not just in NYS.

Now comes the revelation, that is a pool of names of individuals who have signed documents under oath, claiming to have assigned mortgages into various pools and trust under circumstances not credible on their face. Basically these individuals, and more cases are being identified every day, are claiming to Vice Presidents of multiple banks and other mortgage related entities, all at the same time. In reality, they appear to be low level clerks at a company called DOCX. Take a minute and go read this report and then for even more fun, go look at actual examples of these titles and signatures.

What does this mean? It means that banks, and the companies that they used to warehouse and process the mortgage documents backing their securities, either knowingly or negligently mishandled the documents and failed to actually transfer them into the trusts that back those securities. They acted as if they had. All would have gone well except that homeowners began to default and when the trusts went to foreclose, they found out that they don’t actually have the mortgages in their trusts. So, to cover it up, it appears that these document mills are fabricating missing documents, backdating documents, and doing assignments of documents after the time to lodge those documents in the trusts has long expired. In other words, they are committing fraud to cover up the fact that they failed to “perfect” their ability to foreclose.

Congress may be blind, deaf and dumb to the families needlessly made homeless, most prosecutors may be wringing their hands not knowing what to do—this latter part amazes me b/c you would think an ambitious prosecutor would love to become a populist hero by riding to the rescue of beleaguered homeowners—but, at least, bankruptcy judges and mortgage part and land court judges —perhaps because they are seeing so many boiler plate filings—have begun to smell the coffee.

 

According to the Wall Street Journal, the U.S. Attorney’s Office for the Middle District of Florida has launched an investigation into the alleged fabrication of documents purporting to transfer mortgages to entities which are now foreclosing upon homeowners.

But this is only the tip of the iceberg. Imagine that a bank sets up a mortgage backed security. The security is backed by a trust that holds all the mortgages and notes. The trust document says that all of the mortgages to be included in this particular security had to be transferred into the trust by a particular date. That date is long since passed.

You are now in foreclosure, and attached to the summons and complaint is a copy of an assignment of your mortgage; the assignment has been executed within the last several days before the date of the summons and complaint, transferring your mortgage into the trust.

So what does this mean?

It means that the trustee did not actually own your mortgage. All the mortgage payments you’ve made,  were paid to the wrong party.

Why? Because the mortgage was not transferred into the trust before your payments were directed to the trust. The assignment after-the-fact doesn’t remedy the situation; the trustee was required to stop adding mortgages to the trust by a date long since passed. So the trustee accepted payments from you even though your mortgage was not a part of that trust. You were paying the wrong party.

To add insult to injury, the trustee is trying to take your home away.

Lynn Szymoniak, attorney and editor at Fraud Digest Online has many more details (PDF). She also explains that the last minute assignment might be a forgery. Ain’t that just the icing on the cake?

Clerks at DOCX, LLC, are signing these documents pretending to be employees of varies banks and other financial institutions. The firm is engaged by banks and mortgage lenders to “expedite” mortgage foreclosures, including processing assignments. Szymoniak reveals that clerks at DOCX are signing these documents pretending to be employees of various banks and other financial institutions – and that’s forgery.

Szymoniak has outlined all this in a letters to an Assistant U.S. Attorney, as well as Phil Angelides, Sheila Bair, Barney Frank, a Clerk of the Court in Florida, and a Florida State’s Attorney. Let’s hope her efforts gain some traction before too many more homeowners are forced to deal with this situation on their own.

 

You know in the animated movie Madagascar, when Alex the lion starts to see walking steak every time he looks at his best friend Marty the zebra? Well, bill collectors are like a type of carnivore. The training and culture in a bill collection business is all about bringing in the benjamins.

Bill collectors are NOT social workers, debt counselors or consumer advocates.  They are bill collectors, they will eat you. Oh, they may call themselves “mortgage servicers”, but what does that mean? It means they collect the money from the homeowners.

Yet, under both HARP and HAMP, these bill collectors are suddenly supposed to throw off everything they know, and help you pay LESS money on your mortgage. It’s like asking a lion to live on coconuts when there is yummy zebra walking around.

Which may explain why the statistics for permanent mortgage modifications have been so dismal.  Of the 3,137,548 requests for information sent to borrowers to determine eligibility for modification, only 1,032,837 have even gone into a trial period. Of the trial period mortgages, only 31,382 have been offered permanent modifications. ( Third quarter results for 2009) Yes, Firepups, you read that right, 1% of those who may be eligible have made it through the gauntlet and obtained a permanent modification.

There’s a handy dandy chart at Pro Publica where you can check on your own lender’s success rate. BTW, the overwhelmingly highest success rate comes from what are known as “portfolio” mortgages.  A portfolio mortgage is one that is still held by the bank that originated the mortgage. These banks are more likely to outright forgive some of the principle, have a much higher rate of conversion from trial period to permanent modification, and a much lower re-default rate after conversion.

Yep, the traditional system, where a bank makes the mortgage, services the mortgage and keeps the mortgage on its own books is MUCH better adapted to meet this crisis than the fancy fractionized, securitized mortgage with its layers and layers of both fees and conflicts of interests.

And despite the requirement that foreclosure is supposed to be stayed pending the outcome of the mortgage modification process, people are still losing their homes even though they have successfully completed their trial. See, here.

There have been many reasons offered to explain this pathetic outcome…

– The servicers have failed to adequately train their bill collectors in the new HARP and HAMP procedures and how to apply them.

– The computer programs used by the servicers cannot accommodate a lesser payment amount and still generates delinquency alarms during the trial period.

– The servicers to not have enough warm bodies to handle all this new paperwork and phone calls.

– The loan modification department of the servicer does not share information with the foreclosure arm of the servicer

– There is no agency or watchdog to ensure that servicers are doing HAMP or HARP in good faith, or even with minimal competence.

– Loan modification usually requires the servicer to take at least a small haircut, foreclosure results in additional fees to the servicer. Nice article here.

It’s that last one, all the financial incentives are stacked in favor of the servicer NOT doing the modification or not doing it properly, that really jumps out at me. If makes all the other obstacles, insurmountable.

Consequently, judges around the country—despite Congress’s failure to pass cramdown—are starting to take consumer protection to heart. Up until the last few years, when a bank moved for foreclosure, the judges just assumed that the bank’s paperwork and legal case were in order. Consumers had show a smoking gun to get a judge’s attention. Not anymore.

As I previously told you, a bankruptcy judge in the Southern District of New York outright cancelled a mortgage , because the bank failed to prove it owned the mortgage—its paperwork was not in order. Judge Robert Drain later pointed out, “As has become painfully obvious over the last two years, the servicers just don’t have their act together.”

Other judges have stopped simply assuming that mortgage servicers and banks have their duck in a row. A State Supreme Court Justice in Brooklyn has taken to scrutinizing lender’s papers even when the, often pro se, consumer hasn’t pointed out any defects.

The judge, Arthur M. Schack, 64, fashions himself a judicial Don Quixote, tilting at the phalanxes of bankers, foreclosure facilitators and lawyers who file motions by the bale. While national debate focuses on bank bailouts and federal aid for homeowners that has been slow in coming, the hard reckonings of the foreclosure crisis are being made in courts like his, and Justice Schack’s sympathies are clear.

He has tossed out 46 of the 102 foreclosure motions that have come before him in the last two years. And his often scathing decisions, peppered with allusions to the Croesus-like wealth of bank presidents, have attracted the respectful attention of judges and lawyers from Florida to Ohio to California. At recent judicial conferences in Chicago and Arizona, several panelists praised his rulings as a possible national model.

So too, did Justice Spinner of NYS Supreme Court, Suffolk County cancel a mortgage because a bank lacked paperwork proving ownership. And in Kansas. And in Florida. If you know of other similar cases from your state, let me know in the comments—with a link if possible and I’ll update the post.

 

Wow, Hans von Spakovsky has taken a page from Lynn Cheney’s “Al Qaeda Seven” slander ad and launched a patchwork quilt of personal attacks against the senior members of the U.S. Department of Justice Civil Rights Division. In an article appearing in the National Review he goes after each of them in a very personal way. Ultimately, I think the article backfires and Hans has jumped the shark.

The article is actually wildly entertaining if you read it as satire. How can pointing out that someone was smart and talented enough to clerk for a federal Court of Appeals judge and a Supreme Court Justice actually count as an insult?

I’m not going to dignify this hysterical screed with a link because The National Review did not earn any click-through props by printing this crap. Normally, I respect them even when I disagree with them, but this tripe is so far below their standards as to make me wonder what sort of shouting must be going on in their editorial meetings this week.

For example, Hans castigates Assistant Attorney General Thomas Perez for the sins of having worked for Senator Edward Kennedy, having been elected to the Montgomery County, Maryland legislature and belonging to Casa de Maryland.  Oh, the horror of it all. Worse yet, according to Hans, is Mark Kappelhoff’s sin for daring to have worked for – wait for it – yes, the ACLU. OMG!

Principal Deputy Assistant Attorney General Samuel Bagenstos is the aforementioned victim of Hans’s insult who clerked for 9th Circuit Court of Appeals Judge Stephen Reinhardt. Bagenstos also clerked for my personal SCOTUS fave, Justice Ruth Ginsberg. Evidently, Hans thinks these credentials are something to be ashamed of; he really enjoyed “outing” Bagenstos.

The National Review piece reads like something from The Onion. If it was meant as an April’s Fool’s piece, they are a few weeks early. I know that Hans gets paid by the Heritage Foundation to come up with attacks from the right, but are they getting value for money?  If the best he can turn out sinks to the Liz Cheney level of Epic Fail, might they want to rethink how they are allocating their resources?

Last semi-related point:

I know that Attorney General Eric Holder thinks that the work of the Civil Rights Division is going to be his legacy—that the Civil Rights Division (CRD) is, as Senator Schumer described it,  the  “crown jewel” of DOJ.  I have to put a pin in the AG’s party balloon.

It won’t matter one tiny little bit how much or how great the work of the Civil Rights Division is if we fail to restore the rule of law in this country.

If DOJ does not have the independence to make charging and venue decisions free from political interference; if people can be captured and held indefinitely without trial or due process, then every single civil right in this country is an illusion and the talented lawyers with sterling resumes in the CRD are wasting their time as we speak.

Hans von Spakovsky’s and Liz Cheney’s efforts to delegitimize these lawyers and their work cannot compare to the effects of failing to adhere to the rule of law.

Mr. Attorney General, during your confirmation hearings you promised to restore the rule of law and you told Senator Herb Kohl that there were some things worth resigning over. Don’t let Senator Lindsey Graham destroy everything else you are trying to do.

Whether or not you are able to restore the independence and integrity of DOJ is the only legacy that matters. All of the work of the CRD or the entire DOJ hinges on this effort.

Tags: Eric Holder, Hans von Spakovsky, Lynn Cheney, The National Review

 

Is HARP for you?

Not the beer, though it’s yummy. I’m talking about the “Home Affordable Refinance Program” which is designed for those who are current in their mortgage payments, but underwater in their home value and therefore unable to re-finance their mortgage to take advantage of today’s lower interest rates.

First of all, if you are current in your mortgage and not in danger of foreclosure, congratulations. You have managed to avoid one of the greatest causes of stress, anxiety and late night tears for you fellow Americans.

HARP is set to expire in June of 2010, so if you qualify, and if you want to refi, you’d better get crackin’.

How do you know if you qualify?

After you finish reading this piece, trot over to www.makinghomeaffordable.gov to get additional resources.

But for now, let’s see about the basics:

1)      You must be current in your mortgage payments;

2)      Must have the ability to pay the new mortgage payment amount;

3)      Your mortgage must owned or guaranteed by Fannie Mae or Freddie Mac (which eliminates a lot of folks, sorry);

4)      The principle amount of your first mortgage cannot be more than 125% of your home’s current value (this may also eliminate a lot of you who need help most);

5)      The refi must improve either the affordability or sustainability of you mortgage situation (by sustainability they mean getting you out of fluctuating interest rates).

HARP refi’s differ from bank refi’s in an number of ways.

a)      You can refi for more than you house is worth, up to 125% of the value of the house;

b)      There are relaxed credit score requirements;

c)       They base the loan to value (LTV) analysis only on your first mortgage instead of all debt against the house;

d)      You cannot use this refi to do debt consolidation (no lumping in your credit card debt).

I don’t know how many of you out there fall into the narrow combination of circumstances that this Venn diagram of conditions imposes, but if you do, and you have either a high interest rate loan or an adjustable rate loan and would like to take advantage of the current market and get into a low fixed rate loan, HARP might be for you.

So get busy; if you qualify and if HARP is advantageous to you, there’s only a few months left to take advantage of this program.

Update, thanks to JediMom inthe comments:

Federal Housing Finance Agency (FHFA) acting director Ed DeMarco today announced the extension of the Home Affordable Refinance Program, (HARP) for an extra 12 months, until June 30, 2011.

Tags: Fannie Mae, Freddie Mac, HARP, home ownership, mortgage, refinancing

 

[Ed. note: This is the first in a series of articles about mortgage modification programs. If you or someone you know needs help, the Obama Administration has a website with more information about home mortgage refinancing options at www.MakingHomeAffordable.gov.]

Earlier this month the bankruptcy courts of the Second Circuit here in New York put on an incredibly informative seminar called “The Intersection of the Bankruptcy Loss Mitigation Program with HAMP/HARP.”  It was presented for the education of bankruptcy practitioners and lawyers who represent consumers. It featured bankruptcy judges from the Southern and Eastern Districts of New York, a senior manager for Government Programs and New Initiatives for Fannie Mae (the Home Affordable Modification Program and the Home Affordable Refinance Program being “new initiatives”), a VP/Deputy General Counsel for Fannie Mae, and the Director of Foreclosure Prevention at Brooklyn Legal Services.

For those folks living in New York state, the best news is that a version of this same program was presented two weeks earlier to both bankruptcy court judges AND NYS judges who will be staffing the mortgage foreclosure parts. The program was live streamed into the courthouses, so nobody had to miss it.

The Bankruptcy Loss Mitigation Program was begun in the Southern District of New York in 2008 and was adopted in the Eastern District of New York in late 2009.

In the current economy, home foreclosures often yield a loss-loss situation for homeowners and lenders. One bankruptcy court has launched an innovative program that tries to help both sides avoid such mutual dissatisfaction.

The U.S. Bankruptcy Court for the Southern District of New York offers “loss mitigation”—a program that encourages debtors who have filed for bankruptcy protection and their secured creditors to sit down and discuss ways foreclosure might be averted.

“The Bankruptcy Code does not allow me to rewrite a residential mortgage,” said U.S. Bankruptcy Judge Cecelia Morris, the program’s primary architect. “But it does allow me to say to both sides that they need to talk, in the hope that they may avert either the loss of a debtor’s property to foreclosure, increased costs to the lender, or both.”

The New York State Residential Foreclosure Program also provides for a process to force lenders to the bargaining table.

Eligibility
In an effort to streamline the process for homeowners in danger of foreclosure, the court has established a Residential Foreclosure Program. Homeowners are eligible to participate in this program if the subject property meets all of the following criteria:

• It is an owner-occupied residence.
• It is a one-to-four family dwelling.
• The mortgage in question was originated between
January 1, 2003 and September 1, 2008.
• The mortgage is a sub-prime, non-traditional, or high-cost loan.

Settlement Conferences
If you meet the above criteria, a Foreclosure Settlement Conference is mandatory provided the case was commenced on or after September 1, 2008. If your case was commenced before September 1, 2008, you may still participate on a voluntary basis. The plaintiff is required to identify eligible cases and provide your contact information when filing them with the court. The court will then schedule the conference within 60 days after you have been served with court papers. Please be aware that the court conference does not relieve you of your obligation to respond to the plaintiff’s papers in a timely manner. If you come to the conference without an attorney, you may be entitled to a court-appointed lawyer.

At the conference, the court will:
• discuss the rights and obligations of the parties
• determine whether the parties can reach a resolution to avoid foreclosure
• evaluate workout/settlement options such as payment schedules or loan modifications
• design a plan to streamline subsequent court proceedings if a settlement cannot be reached

There was such an enormous volume of information and insights provided at this seminar that it will take me many blog posts to arrange it all and add in the links to augment. Expect to see many more posts on this topic. And for those of you outside NYS, bankruptcy is a matter of federal law. What happens in a bankruptcy case in NY can be relevant to what happens in your own state.

It was most encouraging to find that the judges appear to be disinclined to let lenders run roughshod over homeowners and are finding new and creative solutions to allow homeowners to bargain with creditors to modify their loans. At the same time, Fannie and Freddie have a stated purpose to help homeowners modify their loans and keep their houses. Whether all those noble aspirations will translate into real relief for homeowners remains to be seen—the system has a long way to go, which I will discuss I future posts; but at the very least, the plight of homeowners has not fallen on deaf ears in the courts.

Please stay tuned, there’s more to come…

Tags: bankruptcy, Bankruptcy Loss Mitigation Program, Fannie Mae, foreclosure, Freddie Mac, HAMP, HARP, homeowners, judicial, legal, loan modifications, MakingHomeAffordable.gov, mortgage crisis, mortgage modification, mortgages

 

Now that David Ogden is leaving as U.S. Deputy Attorney General, the speculation about his replacement has already begun. Names being floated include:

American University law school professor Dan Marcus, a former Justice Department official and White House lawyer who also worked on the 9/11 Commission. But others, especially Acting Deputy AG Gary Grindler, Associate AG Tom Perrelli and Assistant AG for National Security David Kris, are still in the mix.

You know, in recent articles about Attorney General Holder’s first year, he has been dinged for a lack of national security and foreign counter intelligence experience. One remedy would be to make David Kris DAG.

Kris, currently the Assistant Attorney General for National Security, is the co-author of National Security Investigation and Prosecution, ©Thompson West 2007 and has forgotten more about this area of law than the rest of us will cumulatively know in a lifetime.

A couple years ago, I him invited to speak to an organization of retired Law Enforcement types; he has the speaking ability, judgment and tact necessary to communicate and “sell” a policy proposal to Beltway insiders and the general public.

Holder will need someone with Kris’s chops since he appears to have become the Administration’s piñata du jour, what with Janet Napalitano throwing Holder under the bus.

 

First, Sen. Richard Shelby put a blanket hold on all executive branch nominees to extort the executive branch into rigging procurement to guarantee that the company he favored won a bid on a defense contract. Oh, and he wanted the FBI to build a crime lab in his state, too.

And now Sen. Lindsey Graham is copycatting, placing a hold on the closing of Gitmo hostage to extort the Department of Justice into not having a civilian trial for Khalid Sheikh Mohammed. And Graham’s not being subtle about it. In a well-researched piece for The New Yorker, Jane Mayer breaks some amazing scoops:

“Rahm had a good relationship with Graham, and believed Graham when he said that if you don’t prosecute these people in military commissions I won’t support the closing of Guantánamo. . . Rahm said, ‘If we don’t have Graham, we can’t close Guantánamo, and it’s on Eric!’ ”

[snip]

Graham told [Mayer], “It was a nonstarter for me. There’s a place for the courts, but not for the mastermind of 9/11.” He said, “On balance, I think it would be better to close Guantánamo, but it would be better to keep it open than to give these guys civilian trials.” Graham, who served as a judge advocate general in the military reserves, vowed that he would do all he could as a legislator to stop the trials.

Okay, Senators Graham and Shelby? This is the U.S. Senate, not middle school. This blackmail thing?  It‘s not like, “Oh, the cool kids are wearing Hello Kitty wristwatches” and you need to follow the fad.

There is zero logical nexus between whether or not to close Gitmo and whether or not to have civilian trials, so the only reason for making the kind of statement quoted above, is quid pro quo. While I’m not suggesting that this is a Hobbs Act violation (read the link, trust me), it certainly smells just as bad.

Kate Martin, the Center for National Security Studies director, warns, “We can’t have a situation where political pressure forces the federal government to forgo criminal prosecution. That would mean the system is fundamentally broken.”

Message for Rahm, from Marcy Wheeler:

Remind me. Didn’t Rove and the Bush White House get in trouble for this kind of tampering with DOJ issues?

Really, the White House needs to BACK OFF and let the Department of Justice and the federal courts do their job. And a bunch of non-lawyers with ZERO expertise in this area should NOT be part of the decision making process, much less driving that process. Hasn’t Rahm done enough damage to the President with his mishandling of the healthcare bill? Why do you want him to screw up something he knows even less about?

 

An open letter to President Obama:

“People are so thirsty for real leadership they will crawl across the desert for it and when they find out it’s a mirage they will drink the sand.”

I ought to needlepoint that quote on a pillow for the Oval Office for you. You campaigned on hope, to people who wanted meaningful change.

You said that you wanted health CARE reform, not health insurance mandates, but when the time came to articulate to Congress what you wanted to see in the draft bills, you took a back seat and let the two chambers come up with incompatible bills. For goodness sake, you let Sen. Max Baucus take the lead on the Senate bill and dawdle for months. Mr. President, it was supposed to be YOUR vision for health care reform, not his. Max Baucus isn’t our president, you are.

Now, after having promised to restore the independence of the U.S. Department of Justice, you are not supporting the U.S. Attorney General’s decision to hold the trial of Khalid Sheik Mohammed in the federal courthouse in Manhattan, close to Ground Zero. This despite the fact that the U.S. Marshall’s Service — guys who will be putting their own lives on the line moving this prisoner around — have determined that the SDNY courthouse is the safest place to hold the trial.

Instead, you have non-lawyers and non-marshals at the White House running around infecting this decision with tawdry politics. White House Chief of Staff Rahm Emanuel isn’t president, you are.

And if you want to close Guantanamo, do it.  And do it faster than Sen. Lindsey Graham can pass his “strip the money” legislation. Once it’s a fait accompli, it will be too late to deny funding.  Allowing Graham to dictate whether or not civilian trials can be held is nothing short of non feasance in office on your part. Lindsey Graham is not the president, you are.

The list goes on and on. During the campaign, you laid out a whole series of policy initiatives. People didn’t elect you because they liked YOU; they elected you because they liked the policies you were proposing.  I assume that you actually thought about those policies and decided you actually liked them before campaigning on them. Mr. President, you must support your own decisions.

Anyone who has ever read this blog knows that I have no love for George W. Bush. In his entire presidency, he only got one thing right. He knew how to be decisive. Right or wrong, once he decided to do a thing, he didn’t let anyone or anything get in his way (until his wrong decisions got overturned in court). I‘m not suggesting that you go off half-cocked, or that you make every single thing a “my way or the highway” contest; but there are some things important enough to fight for. (more…)

A Valentine’s Day thought that came to me in an email:

Someone in the audience during a Q&A on “American Perspectives” on C-SPAN noted:

The Dred Scott decision declared people to be property, and the Citizens United decision declared property to be people.

Does this mean that if two corporations can merge then same-sex marriage is legal?

Irony is my favorite form of humor.

Happy Valentine’s Day to you all.

XOXO

 

I don’t think Miranda means what you think it means.

I am sick to death of listening to people who have no freakin’ clue what they are talking about, go on and on about how reading someone their Miranda warning means they won’t give you actionable intelligence.

Please shut up now.

I’m going to explain this to you very slowly and I won’t use any big words, so listen up:

A Miranda warning is merely a reminder of list of rights that an arrestee has.  The person arrested ALREADY HAS THESE RIGHTS upon arrest. The reading of the warning does not confer the rights upon the arrestee.

The Miranda warning is merely a reminder of what those rights are. Getting arrested is a traumatic event and many people completely panic and their mind goes blank.  The reminder helps them to remember that they actually have these rights. Also, some people who are new to this great nation do not realize that they, too, have these rights when they are arrested within the United States, so it may be new information to them.

Reading someone their Miranda rights does not necessarily make them stop talking, nor does it mean that interrogators cannot go back again and again with more questions. Anybody who tells you otherwise is incredibly ignorant or just plain lying.

An arrestee can refuse to speak at any point, before or after being read their Miranda rights. Likewise, they can continue to speak AFTER being read their rights. Most do.

An arrestee’s request for a lawyer is the ONLY thing that limits an interrogation; the arrestee can make this request before or after being read their rights.  Once the person asks for a lawyer, interrogation must cease until the lawyer arrives, but may resume thereafter if the lawyer consents; arrestees’ lawyers often consent because it’s in their client’s best interest to cooperate.

In fact, that’s exactly what happened with underwear bomber; his lawyer consented to his telling the FBI what he knows. In fact, you’d be surprised how often the defense lawyer’s presence HELPS to get someone to talk; the defense lawyer explains to his client why it is in the client’s best interest to cooperate and gives the client the confidence that the interrogation is not some scam.

 

I’ve asked it before and I will ask it again: Why do chickenhawks want to dignify terrorists by treating them like soldiers, instead of like the criminals they are?

Al Qaeda is an organized crime enterprise.–no more exotic than the mafia, or a multinational drug cartel. OK, they are ideology-driven rather than profit-driven, but that’s about the only distinction. Like the mafia or a drug cartel, they use murder, violence and threats of violence against persons and property as business tools to achieve their goals.

Why do people want to glorify them and act as if they are soldiers instead of criminal low-lifes? Well, one answer might be politics. You know, a chance to get in front of the cameras and maybe drive a fundraising push?

Carie Lemack, co-founder of The Families of September 11, has got it just right. Listen to what she has to say.

[Ed. Note: Also, Marcy has AG Eric Holder’s thorough response to the GOP Coward Caucus.]

 

More STUPID, STUPID, STUPID

White House press spokesman Robert Gibbs just said that Khalid Sheikh Mohammed (KSM) would likely be executed after trial and conviction. WTF?!?

Am I the only person left who still remembers a legal concept called presumption of innocence? Am I the only one who remembers that the whole point of a trial is that the outcome is not certain?

Listen Gibbs, do NOT insult the prosecutors who are about to work their asses off trying to put together a winning criminal case. Do NOT insult the hardworking defense counsel who are going to put thousands of hours into making sure that KSM gets due process. Do NOT insult the excellent federal judges of SDNY by suggesting that any one of them would preside over a kangaroo court. Do NOT insult our entire criminal justice system.

In a real trial, the outcome is not known before the trial occurs. Further, much of the information in the hands of the government which will be used at trial against KSM should currently be Grand Jury Material, subject to secrecy under Rule 6e. Which means that you, Robert Gibbs, cannot legally know exactly what that evidence might be.  So, how could you possibly know if KSM is going to be convicted? How do you know that?

You don’t. So stop shooting you mouth off and calling our system of justice and the dedicated professionals of both bench and bar in the Southern District of New York into disrepute.

Listen, the White House needs to back off and let the professionals handle this trial. USAO SDNY and the judges of SDNY are pros at this. David Axelrod is not. Robert Gibbs is not. People who have no clue what they are talking about, need to back out of this loop, now.

Let the AG, the US Attorney and the Chief Judge handle it. You guys go back to doing the stuff that you are good at.

 

STUPID, STUPID, STUPID!

The White House needs to butt out of prosecutorial decisions.  If the White House undercuts Attorney General Holder on the issue of where to hold the KSM trial—or any other trial for that matter—they are establishing a HORRIBLE precedent. It would mean that anytime a criminal defendant wanted to change the venue of his trial, all he has to do is arrange for a credible threat to the neighborhood around the courthouse.

It also gives local mayors an unheard of ability to interfere with both the decisions of DOJ and those of the judicial branch. What sort a moron rewards bad behavior that way? Just because Pete King wets his pants every time someone say  “terra- terra- bugga- bugga- boo” does not mean that political operatives in the White House should now be interfering in decisions properly made by the DOJ and the judicial branch.

Ahem, remember separation of powers? The judicial branch, NOT the executive branch, establishes the site of their own courts within the confines of the Judiciary Act of 1789 and Article 3 of the Constitution. So, Congress set the locations of the districts, the judiciary decides where the “court” sits within the district (which is how a FISA Court judge can hear a midnight warrant application in his living room while wearing PJs).

Do you know who do NOT get a say in this? The Executive Branch.  In fact, the Judiciary Act specifically REQUIRES that:

SEC. 9. And be it further enacted, That the district courts shall have, exclusively of the courts of the several States, cognizance of all crimes and offences that shall be cognizable under the authority of the United States, committed within their respective districts, or upon the high seas;

[emphasis added].

So, if the crime was committed in SDNY, it has to be tried in SDNY, so sayeth the very first Congress of the United States. So, Rahm or whatever other cretin got the bright idea that you can tell the court where it’s going to sit, feck off and go get a copy of the goddamned Constitution! And PLEASE stop taking orders from Pete King and Michele Bachmann. Sheez!

This interference with the day to day workings of the courts is certainly a radical change, but I don’t think it’s the kind of “change we can believe in” that Democrats, Independents and crossover voters thought they were voting for.

I previously opined that someone in the Administration took a shiv to The Attorney General over the KSM trial. Now it looks like I was right. Sucks to be right.

Terrorism trials and organized crime trials in SDNY and the attendant “disruptions” to local traffic are nothing new in NY. The first ones I personally remember, was the Croatian Nationalist Trials in the early 1980’s. For those who were not daily visitors to Foley Square in those days, a little refresher:

These appeals from judgments of conviction in the District Court for the Southern District of New York, after a trial before Judge Pollack and a jury, concern the terrorist activities of four Croatian nationalists from mid-November to mid-December, 1980. During this one-month period, a Joint Terrorism Task Force, made up of Special Agents of the Federal Bureau of Investigation (FBI), detectives of the New York City Police Department Arson and Explosives Section, as well as other FBI personnel, including a number of agents and translators able to understand Serbo-Croatian, conducted a large scale investigation, including the operation of four interception devices, the execution of eight search warrants, and around-the-clock physical surveillance of the four appellants and their coconspirators.

There was also a trial before Judge Motley

The massive, complex and convoluted record of this thirteen-week trial established that appellants were members of a Croatian terrorist group operating principally in New York, Chicago, and Los Angeles, with participants in Cleveland, San Francisco, Toronto, South America, and Europe. Acting through their criminal enterprise, they perpetrated an international extortion scheme against “moderate Croatians” and persons they believed to be supporters of the government of Yugoslavia, resorting to multiple acts of violence against those not sufficiently sympathetic to their cause. We chronicle the history of their activities in some detail.

This latter case involved multiple bomb plots and oodles of explosives.

I remember these trials well because of the crowds of protesters outside the courthouse. There were demonstrations daily. So, there were police doing crowd control. Supposedly, somebody either brought a gun or was apprehended trying to bring a gun into the courthouse; so suddenly you couldn’t just waltz into the courthouse at will, you were stopped in the lobby and had your bags searched.

Later, during the Commission Case (in which the heads of all five NY mafia families were charged, and which was going on at the same time the Gotti case was being tried just a short walk over the Brooklyn Bridge in EDNY) and the Pizza Connection Case, courthouse and USAO SDNY security had to be beefed up again and again. Metal detectors were added to the search and x-ray screening of bags, and finally, in response to threats to blow up the US Attorney’s Office, barricades were installed around St. Andrew’s plaza to stop car bombs. I found this latter innovation a big inconvenience because I used to park on the plaza when I worked really late or worked on the weekends. Once the bollards went up, I had to hike to my car late at night. SDNY has also been the site of the Columbian Drug Cartel trials, the NY 8 ½ trial, the FALN trial and a host of Islamic terrorists trials.

In 2001, Mary Jo White wrote a piece for Middle East Quarterly outlining the relentlessly successful work that the USAO SDNY Counter Terror Unit accomplished. Click the link and READ IT. We have a long history of safely holding trials of supposedly really dangerous people with networks of really dangerous henchmen alleged to be bent of wreaking havoc on lower Manhattan if we dared to hold the trial there. This is nothing new for SDNY.

There is no reason to, once again, jettison the rule of law, separation of powers and longstanding traditions of prosecutorial independence from political concerns, just because Mayor Bloomberg has had a change of heart.

So, I would like to remind Mayor Bloomberg of another second career mayor, Carmel-by-the-Sea’s Mayor Clint Eastwood. During his first career, Eastwood made a movie exemplifying the lengths to which this society ought to go to ensure that thugs don’t dictate where, when, how or whether criminal trials are held. Mayor Bloomberg, rent the movie — I’ll spring for the NetFlix charge and the popcorn.

 

Having wondered about the evil version of 11-dimensional chess being played upon Attorney General Holder in my previous post, I can now continue with my original question.

WTF is Lindsay Graham thinking?

Sen. Lindsey Graham, along with cosponsor Joe Lieberman (of course), submitted an amendment to a joint appropriations bill for Department of Justice, the Department of Commerce and some science spending. The amendment to this bill would disallow the spending of money for trials of 9/11 terrorists on U.S. soil. This was a direct response to AG Holder’s decision in November 2009 to hold the civilian trial of Khalid Sheik Mohammed in the Southern District of New York. This kind of reaction IS EXACTLY WHAT OSAMA BIN LADEN WANTS.

Why is Lindsey Graham laboring to empower bin Laden?

Let me explain a bit. I recently read the book by the wife and son of OBL,“Growing up Bin Laden” which was the recent subject of an FDL Book Salon. Not only did the book have new information, it placed things we’d already heard in various news accounts and put them in context and explained how it all worked in the mind of OBL.

OBL thinks of his followers as soldiers, as brave warriors for a new Islamic caliphate. He started out during the Soviet Union’s invasion of Afghanistan raising money for supplies for the Mujahedeen fighting there.  These fighters were not just Afghans; they were young idealistic men who had come from all parts of the Muslim world, in order to defend a Muslim nation against an invading secular superpower.

Later, because corruption meant that the supplies often never reached their intended beneficiaries, he personally escorted the supplies, with an elaborate security detail, and distributed the supplies himself. Still later, he would hang around after the distribution to participate in some of the fighting. When the Afghans drove the Soviets out of their country, they were publicly praised as heroes, but many found that they their own governments had quietly cancelled their passports and they could not return to their homes to resume their educations and careers. They were trained to fight, but had no enemy left; they were called heroes yet denied the right to return to civilian life. They were trapped in Afghanistan with no means of support. OBL continued to feed them and gave them employment.

In Saudi Arabia he was treated like a returning victorious general. And he loved it. He had done public speaking in connection with his fundraising and now was being asked to speak about a return to manly honor via military means, jihad.

According to the book, when Saddam Hussein invaded Kuwait and threatened Saudi Arabia, OBL went to the Saudi royal house and offered to bring his “army” into Arabia to defend the homeland. Now if you are the royal house, do you really want some guy with a private army, personally loyal to only him—rather than inspired by nationalism—marching his own personal army into your kingdom? I wouldn’t. What’s going to happen with them when the war with Saddam is over?

So, they sort of pocket vetoed that idea and instead allowed the U.S. to come into Arabia and set up military bases, bases that had women military members. This is apparently what set OBL off. That infidel women would be allowed to fight to save Holy Arabia and Muslim men would not was the ultimate insult—to OBL—upon the dignity of a Muslim manhood. Shortly thereafter OBL was exiled to Sudan. Later, Sudan kicked him out and the Saudi’s froze his assets in their country. OBL was forced to go live in Afghanistan, the place for men without a country.

His entire self-worth and that of his followers is tied up in believing that he is a military man, not some pathetic fugitive that no country wants and who has to hide out in caves.

Bush/ Cheney spent seven years feeding OBL’s ego with their chickenhawk “war on terror” and their color-coded threat levels and their endless bleating of “be afraid, be very afraid”.

When Lindsey Graham talks about men being captured on a battlefield, he cannot be talking about KSM, who was captured hiding in a root cellar, just another criminal fugitive. There was no battlefield, except in John Yoo’s memos because he needed a “state of war” to attempt to justify torture. Never forget, the entire premise upon which Yoo bases EVERTHING is that the President has extraordinary powers when acting as Commander-in-Chief.

Look, I don’t know that many JAG officers, but every single one I have ever met, has favorably impressed with both lawyerly skill and with devotion to the Constitution. I am not slamming the military justice system’s ability to give a fair trial. Heck, in some ways their system is fairer, since it allows the defense to get discovery out of the prosecution’s witnesses pre-trial. I am, however, refusing to countenance elevating common criminal like Khalid Sheik Mohammed to the level of a military man.

KSM is not a soldier, nor is OBL. They are merely criminals. Losers who cannot hack it in the civilized world and whose doubt in their own manhood is so great, that they have to blow up buildings and kill and frighten women and children to make themselves feel manly. Just like those draft dodgers, Bush and Cheney.

Holder made the right call with the KSM trial. It is a potentially game changing decision that could go miles toward both restoring the world’s faith in American justice and American ideals AND in discrediting OBL and his stupid pointless movement. You know, for a guy who is a construction contractor by trade, you’d think it would have dawned on OBL by now that he is not BUILDING a caliphate, he is merely destroying some buildings and airplanes and killing a lot of innocents. That’s not going to get him into Paradise.

The best way to destroy OBL (short of capture, that is) is to expose him to the world for what he is, a fugitive criminal, sometimes reduced to hiding in places usually reserved for rats and other vermin. This realization will dishearten his followers and close off the flow of new recruits. As long as we continue to elevate these knaves and place them on the pedestal that should be reserved for our own military men and women and those who bravely defend their own homelands in uniform, we give them an honor and privilege that their own base actions belie.

KSM is not a soldier captured on a battlefield. He did not wear the uniform of any state. He did not operate under the authority of any government. His actions were not part of the social contract and not authorized by any legal entity. The difference between death in war and the crime of murder is that the soldier who kills on the battlefield kills ONLY as directed by government authority.

Al Qaeda is just an overgrown street gang with fancier weapons and a catchy religious marketing hook. If you extend the courtesies of military status to al Qaeda, how can you deny such to MS 13?

So, Lindsey, stop denigrating our own military and elevating KSM to that status of soldier which OBL covets so much. They are gangsters and murders, nothing more. They are particularly vicious gangsters, but not soldiers—never soldiers. Lindsey, knock it off, or the next thing you know, the Crips and the Bloods are going to want in on this military tribunal stuff with all it extra rights for the defense team that we don’t give in civilian courts, it will become a status symbol for all the criminals.