Negligent investigation, racketeering, and gambling in Vegas.

John Ross · April 15, 2022

From 2001 to 2018, now-retired Midland County, Tex. prosecutor Ralph Petty worked on over 300 cases as both the lead prosecutor and law clerk for the judge overseeing those cases, arguing by day and (among other improprieties) drafting orders in his own favor at night—unbeknownst to the defense. This week, Erma Wilson, who was falsely convicted of drug possession, joined with IJ to file suit against not only Petty, but also the district attorney who okayed the arrangement and the county. (The judge is deceased.) Read all about it in The Wall Street Journal. Big ups to USA Today for breaking the story last year. The complaint can be found here.

  • Two Brooklyn, N.Y. men who used quite a bit of violence to protect their illegal businesses (including conspiring to set fire to a rival gambling den) are convicted of, among a lot of things, racketeering and sentenced to over 16 years. Second Circuit: Affirmed. Dissent: It’s not racketeering if it’s just some guys doing felonies together. Their so-called syndicate had no name, no rules, no organizational structure, no secret handshakes.
  • Allegation: Truck driver leaving Albany County, N.Y. bar causes accident that kills motorcyclist, but police don’t do field sobriety testing or collect any evidence and they file a dishonest report. Did this violate the motorcyclist’s mother’s right of access to the courts? Second Circuit: She’s actively litigating state-law claims against the truck driver and the bar, so, at least for now, her claims against the police must be tossed.
  • District court: I grant you leave to file your proposed amended complaint. Plaintiffs: Great, here’s a totally different, way shorter amended complaint. District court: Boy, that complaint’s not detailed enough. I’m dismissing it without prejudice in case you wanted to file a better complaint, like maybe that one from the first sentence of the summary. Plaintiffs: Nope, we appeal! Third Circuit: Guys. C’mon.
  • Initially unable to reach a verdict, jurors request the production of an enlarged freeze frame from an informant’s video that shows a Myrtle Beach, S.C. cocaine seller’s face reflected in a rearview mirror (a freeze frame that was not presented prior to deliberations). They also ask—and the court orders—the defendant to stand next to the photo. He’s convicted and sentenced to 17 years. Fourth Circuit (over a dissent): Habeas granted. His lawyer was unconstitutionally ineffective for failing to object more strenuously.
  • Army staff sergeant serves 9 years in military prison; he’s paroled, subject to a number of conditions, and supervised by a civilian parole commission. He’s jailed for violating one of the conditions. But wait, does a civilian parole commission have the authority to impose parole conditions, rather than the court-martial that sentenced him? District court: No need to resolve this because he’s been released, so his claim is moot. Fifth Circuit: Not so fast. He’s been denied all veterans’ benefits as a result of the parole violation, which may be sufficient to keep the case going.
  • Civilian contractor driving to work at a San Antonio, Tex. military training base is swept away on a flooded road on base—a road that officers are supposed to inspect and close when flooded. He drowns. Fifth Circuit: And his parents can sue the feds for failing to lock the gate. Case undismissed.
  • Family farmers devise a plan to have their land annexed into the town next door and rezoned for residential development, but the town zoning board scuttles the zoning application, after which the annexation request lapses. District court: You can’t sue about the zoning decision because your land isn’t even in the town. Case dismissed! Sixth Circuit: Right, but they’re not in the town because of the zoning decision. Case un-dismissed!
  • If a town’s planned removal of a dam will flood a property owner’s land, can there be a ripe takings claim before the dam comes down, or must the owner wait until the flood actually comes? Sixth Circuit (over a dissent): Nothing in Article III requires property owners to actually be wearing arm floaties at the time they sue; case un-dismissed.
  • Plaintiff (pro se): Two Ramsey County, Minn. jail supervisors called me the n-word and ignored grievances about subordinates doing the same. The two supervisors: We have investigated and concluded we did not do that. Eighth Circuit: No doubt. Qualified immunity. (Some state-law claims are remanded, however.)
  • Allegation: Woman buys, among other things, a fleece jacket on sale for $19.99 that, per the price tag, had been marked down from $39.99. But wait! The higher figure was just a gimmick. Nobody ever pays list price. Can she file a class action against the retailer? Ninth Circuit: Before we answer that, we’ll ask if the Oregon Supreme Court thinks anyone’s being fleeced.
  • Man is convicted of tax crimes and sentenced to 21 months. But wait! He waived his right of counsel during pretrial proceedings (he was represented at trial) after a magistrate judge told him the max sentence was just 12 months. Eleventh Circuit (over a dissent): He couldn’t knowingly waive his right to counsel if the judge gave him materially false info. Conviction vacated.
  • Reading between the lines just a tad, your humble editor wonders if this Eleventh Circuit panel thinks that it’s easy to rip off Medicaid and Medicare so long as you don’t go overboard. Like this now-former Valdosta, Ga. doctor, who regularly billed the feds for seeing over 50 nursing home patients per day (sometimes 150 patients), purporting to provide services that would take 70 or more hours in a 24-hour period, and once billing for services when he was actually in Vegas gambling. His conviction and 8-year sentence are affirmed.
  • Under federal law, the owner of a leased or rented car is generally not vicariously liable for any accidents their customers may cause. But what about the owner of a loaner vehicle—here a Mooresville, N.C. auto dealership that provided a car to a couple (who drove the car to Florida while theirs was in the shop)? Breaking out the law dictionary, the Eleventh Circuit says the dealership is protected from liability.

Victory! This week, the feds agreed to return 100 percent of the funds—approximately $1.1 mil—seized from IJ client Empyreal Logistics in California. The armored car company, which provides services to state-legal cannabis businesses (among other cash-intensive industries like restaurants and convenience stores) across the country, twice had its vehicles unlawfully searched and their contents seized by the San Bernardino County, Calif. sheriff’s department last year. The sheriff then turned the money over to the feds for civil forfeiture through the DOJ’s equitable sharing program. Empyreal’s separate claims against the sheriff are not affected by the settlement. Click here for more.

New case! In 2020, Rochester, N.Y. police seized over $8k cash from Cristal Starling that she’d mostly earned from her mobile food cart business and that she’d intended to buy a food truck with. (Police suspected her now ex-boyfriend of drug dealing, but he was acquitted by a jury on all charges.) Cristal was never arrested or charged, and she did everything she could to navigate the procedural gauntlet necessary to stop her money from being forfeited. But along the way she missed a single deadline, and a federal district court ruled that that meant she lost by default. Now represented by IJ, she is asking the Second Circuit to apply the normal rules of civil procedure—where defaults are disfavored and parties without counsel are granted extra leeway in cases involving complex procedural rules—to civil forfeiture cases and to remand the case back to district court to hear the case on its merits. Click here to learn more.