Penn State Commentary: What about McQueary?

See evil, hear evil, but speak no evil.

11/12/2011 UPDATE BELOW. This post is not designed to provide coverage on the horrifying and troubling events that have been revealed at Penn State at the hand of former coach, Jerry Sandusky.  Click here to get coverage from the New York Times.  Instead, this post is presenting a very simple question:  How can it be that the Board of Trustees fired University President Graham Spanier and legendary head football coach, Joe Paterno, but the current wide receiver’s coach and team recruiting coordinator, Mike McQueary, still has his job?

According to the Grand Jury Presentment against Sandusky, McQueary was the then graduate assistant that went to Penn State’s locker room facilities on a night in 2002 when he heard, and then actually saw, Jerry Sandusky raping a ten-year-old boy in the showers. There’s so much to say, but let’s look at just two aspects:

1.  Mike McQueary is a former Penn State Quarterback, he was 28-years-old when this event occurred, and looks like he runs about 6’3″ and 230 lbs.  So, why McQueary didn’t stomp the 58-year-old naked and distracted Jerry Sandusky into the shower room tile is a mystery.

2.  Next, why didn’t McQueary call the cops?  There is no legal obligation to get involved in a crime in progress, but one would like to think that a call to 911 would be made as a civic responsibility at the least.  People call 911 when they see a drunk driver and even when McDonald’s runs out of Chicken McNuggets.  So why don’t you call the cops when you see the rape of a child in progress?

Instead, McQueary tells his dad what he saw and then he tells Joe Pa what he saw.  Joe Pa then tells Athletic Director, Tim Curley; but the telephone game apparently washes out some details.  Paterno or Curley could have, and should have, called the cops; but neither of them was an eyewitness like McQueary.

University President Graham Spanier and Joe Paterno were fired last night.  McQueary still has a job.  Today.  Should McQueary still have a job this Saturday by the time the Nittany Lions’ game gets underway?  We think not, how about you?

UPDATE: McQueary has been put on leave and will not be at the game today when Penn State hosts Nebraska in Happy Valley.

Cicero called to the carpet over Tressel emails

I wrote this post back on March 10, 2011, the day that Christopher T. Cicero was identified by The Columbus Dispatch as the attorney who sent e-mails to Buckeye football coach Jim Tressel warning that OSU players like Terrelle Pryor were giving away signed memorabilia in exchange for tattoos from Edward Rife, the owner of Fine Line Ink.

Mr. Cicero (Image via ESPN)

My post was not about the developing scandal at Ohio State (There has been plenty of press coverage on that topic.  Too much in the opinion of this Buckeye fan).  Instead, my post took the lawyer’s perspective since the Dispatch’s article suggested that Cicero obtained the information he sent to Tressel from Ed Rife in a meeting regarding Cicero’s potential representation of Rife in a drug trafficking investigation.  The question in a lot of attorneys’ minds was whether Cicero breached his duties to Rife by passing along attorney-client privileged information to Tressel.

The question has gathered significant steam today.  Catherine Candisky from the Dispatch reported earlier today:

The Columbus lawyer at the center of controversy surrounding former Ohio State football coach Jim Tressel may lose his license to practice law.

The Ohio Supreme Court’s Office of Disciplinary Counsel today filed a complaint against Christopher T. Cicero, accusing him of violating attorney-client confidentiality when he sent three e-mails to Tressel telling him that players had been given free tattoos in exchange for signed memorabilia. Continue reading

Tressel, the Tattoo guy, and Cicero. The attorney-client perspective.

Due to suspensions, this many Buckeyes will be missing for some games this fall.

The Columbus Dispatch revealed today that Columbus lawyer Christopher T. Cicero was the “unnamed attorney” that sent e-mails to Ohio State football coach Jim Tressel starting in April 2010 warning that some players were giving away signed memorabilia in exchange for tattoos from a parlor owner, Edward Rife, who happened to be the subject of a federal drug trafficking investigation.

The revelation, which was scooped by Yahoo Sports, led to Ohio State’s self-report to the NCAA and a 2-game suspension for Tressel coupled with a $250,000 fine.

Copies of Ohio State’s March 8, 2011, letter to Julie Roe Lach, the Director of Enforcement Services at the NCAA, that includes the emails between Coach Jim Tressel and, apparently, Christopher T. Cicero can be read by clicking here: OSU’s Report including the Tressel emails.

The Dispatch reports that “Cicero, a lawyer with a checkered past [] represented the tattoo-parlor owner, Edward Rife, in 2003 when Rife was a key witness in a murder trial.”

I have no personal knowledge  of any of these facts.  I’m just reading the paper and internet articles, just like you.  However, if the reports are accurate and Cicero did send the emails to Tressel, some of Cicero’s content is troubling from the lawyer’s perspective.  Cicero had an attorney-client relationship with Rife in 2003.  While it is unclear from the emails whether there is a current and formal representation of Rife by Cicero, our rules of professional conduct state that a, “lawyer who has formerly represetend a client in a matter…shall not…use information relating to the representation to the disadvantage of the former client except as these rules would permit…or…reveal information relating to the representation except as these rules would permit.”

In one of the emails, Cicero tells Tressel that he had Rife “in my office for an hour and a half last night.”  Then, Cicero goes on to discuss the substance of his meeting with Rife held in his law office.  I have never met Mr. Cicero.  I have never met Mr. Rife.  I have no idea what the substance of the conversations were other than what the email to Jim Tressel recounts, but I do know that our rules of professional conduct state that “a lawyer shall not reveal information relating to the representation of a client, including information protected by the attorney client privilege under applicable law, unless the client gives informed consent….”

I have no idea what motivated Christopher Cicero to send the emails to Tressel, if he did.  But, I do know that the content of the emails from an attorney about his own client is troubling.

One of my biggest pet peeves is reading commentary, stories, facebook status updates, or hearing coffee shop talk from people with sharp opinions when they are barely informed of all of the facts to arrive at their conclusions.  With that in mind, I reiterate that the Columbus Dispatch article this morning contains no admission by Cicero that he authored the emails.  Also, I have no personal knowledge of what transpired in the meeting between “the lawyer” and Rife discussed in the emails, or whether the two were meeting as friends or if it was a client meeting with his lawyer to discuss a problem.  I simply have a hunch, perhaps an educated hunch, that this issue is long from over for any lawyer that was in this position.

Thomas Parenteau could not save himself – surprised?

"Fee-fi-fo fum," benching your lawyer is pretty dumb.

Back in June, I wrote this post about the Thomas Parenteau trial where Parenteau (not a lawyer) was representing himself against 13 federal charges in a multi-million dollar fraud scam.  I discussed what a bad idea that was.  As it turns out, the jury convicted Parenteau of 11 of the 13 charges against him.  Parenteau was acquitted of two money-laundering charges.  I guess he left the stolen money dirty and maybe that’s why he was caught in the first place.

Parenteau was convicted on 11 counts including wire fraud, tax fraud, obstruction of justice, and witness tampering.

I am a firm believer that criminals should pay the price for their crimes and should not “get off easy.”  That belief stands whether you are a starlett like Lindsay Lohan who is getting jail time for violating probation or a less-well-known real estate scammer like Thomas Parenteau.  However, one big difference is that Ms. Lohan was represented by an attorney who will likely succeed in getting Lohan’s actual jail time reduced to a fraction of her sentence, while Mr. Parenteau’s ill-advised courtroom antics probably did nothing to help his cause.

According to Kathy Lynn Gray’s recent article in The Columbus Dispatch, the trial was expected to last six weeks.  It lasted two months and a lot of that extra time was a result of Parenteau’s decision to represent himself.

Trials are like traffic.  When the jury is taking in evidence like a nonstop cruise down I-71 at 65 MPH, the jurors are comfortable, attentive, and understanding.  But when the jury’s evidence show hits a traffic jam brought on by constant objections, improper questions, recesses, sidebars, and antics, the jurors become irritable, restless, fatigued, and annoyed.  You just want to lay on that horn and get the people in front of you moving to arrive at your destination.

The Parenteau trial was no cruise down I-71 with Parenteau’s appointed counsel locked in the trunk of the car.  Instead, Parenteau tells the jury “I’m an entrepreneur, not a criminal” and “fee-fi-fo-fum, the government says I am a cheap bum.”  Well, guess what?  Saying you’re an entrepreneur and and not a criminal is something I think Al Capone would say.  Spouting off “fee-fi-fo-fum” makes me think of an ogre, a bully – basically not someone with whom I want to be friends.  These statements do no paint a picture of a victim of circumstance or generate much sympathy.

I do not have any reason to believe that Parenteau was wrongfully convicted.  All evidence to the contrary.  But, competent legal counsel can mean the difference between life in prison and maybe seeing the dawn on an open field of freedom one day.

Parenteau will be sentenced in a few weeks.  If he has any appealable issues, I wonder if he’ll let his attorneys finally get involved.

Defending yourself in court: the quickest road to ruin.

Now, I know what you’re thinking.  Didn’t Jerry write an article a couple of months ago with tips on how to represent yourself in small claims court?  Yes, I did.  But there’s a big difference between $1,200 in damage to your car and a federal indictment for a bajillion counts of fraud.  Yes, bajillion is a highly technical legal term.

When I was clerking in the Franklin County Court System, I observed a murder trial where the defendant insisted on representing himself.  It reminded me of the courtroom scene from “Airplane 2” – it was just ridiculous.  The Judge was beyond irritated to the point where the Judge’s forehead vein was having a better time than the jury.  When you are on trial for your life, or in a civil trial that can affect your entire life, I firmly believe in the old adage that one who is his own lawyer has a fool for a client.  I’m writing this post after reading John Futty’s article in today’s Columbus Dispatch about a man on trial for fraud.  He’s representing himself despite repeated warnings not to do so from the Judge, his court appointed attorneys, and probably every single person he has come across that knows about this case.  As someone who has tried several cases for clients and has observed a trial where an accused has represented himself, I can say with confidence that this will not end well for Thomas Parenteau.  For the Dispatch, Mr. Futty writes:

As Thomas Parenteau prepared for a second day of cross-examining his former mistress in a multimillion-dollar fraud case last week, he received a harsh critique from the federal judge handling his trial.

"I'm not a lawyer, but I play one in real life at a federal trial where I stand accused."

“You stepped on some land mines yesterday that wounded you pretty good,” Judge Michael H. Watson told Parenteau before bringing the jury into the courtroom for more testimony.

Watson urged Parenteau to reconsider his decision to represent himself, a recommendation he has made more than once since the jury trial began three weeks ago in U.S. District Court in Columbus.

Parenteau hasn’t taken the judge’s advice, insisting instead on exercising his constitutional right to handle his own defense.

A 1975 U.S. Supreme Court ruling that upheld a defendant’s right to self-representation “has been the bane of judges and prosecutors,” said Joshua Dressler, a professor at Ohio State University’s Moritz College of Law who specializes in criminal law. Continue reading

My lips are sealed: Why Conan O’Brien won’t run Jay down

Conan O’Brien gave his first interview since leaving NBC last night on 60 Minutes.  You can watch the interview and read the transcript on Deadline. I didn’t catch the interview last night, but listened to the CD101 morning show jocks talking about it on my way to the office.  They were debating Conan’s response to Steve Kroft’s question of whether Leno acted honorably in retaking The Tonight Show throne from Conan.  Conan’s response was:

I don’t think I can answer that. I don’t think– I can just tell you maybe how I would have handled it. And I would do it differently.

According to the radio jocks (and pretty much everyone I know), Jay was not honorable in the handling of the Tonight Show.  My ears perked up when one of the jocks wondered if Conan did not want to answer or whether, legally, he could not answer the question.

The Answer:  He probably cannot for legal reasons.

Unless you’ve had your head buried in the sand or are one of those esoteric academics that refuses to own a television, you know that Conan was paid handsomely to leave The Tonight Show without a fight.  $32 million is the reported number.  That means there’s a contract, people.  This author would venture to guess that the contract has a hefty non-disparagement clause.

Yes, you can agree not to say nasty things about someone.  This elevated and more civilized version of playground justice boils down to simple language in a contract that says “Conan agrees not to say bad things about Jay Leno.”  The contract probably says that Conan is permitted to say he disagrees with the result or that it’s not what he wanted, but he can’t bad-mouth Jay.

So, when Conan said, “I don’t think I can answer that,” Conan is saying that it’s not worth giving up $32 million for the sweet revenge of calling Jay an unscrupulous, devious backstabber, like he probably wants to say.

My editorial is that Conan probably had two reasons for his answer, (1)  his contractual obligations, and (2) Conan has always displayed the qualities of a complete class-act.  So, while his contract is important to him and his future, his integrity probably keeps his lips sealed as well.  We wish you the best, Mr. O’Brien.

On the passing of Chief Justice Thomas Moyer

Chief Justice Thomas J. Moyer; 1939-2010

I had the privilege and honor of meeting the Chief on several occasions over the last fifteen years.  We were not close personal friends, but we knew each other and a mutual respect was in place.  Mine for him much, much greater in scope.  When I was sworn in as an attorney in 2002, I had the fortune to shake hands with the Chief (the new lawyers would only personally greet 1 of 3 Justices participating in the ceremony).  He pulled me close and whispered into my ear “Glad to see you made it, Jerry.”  Believe me, I was too.

The last time I saw the Chief was in the Charlotte, NC airport about two years ago.  We were both waiting for a connection back home to Columbus.  We chatted about his trip and mine, swapping stories and the casual smalltalk of the importance of family and hard work.  Had I known that I wasn’t going to see him again, I would have had a lot more to say and even more to ask.  I always presumed I would get to argue a case before him one day.  Now, when I enter the Supreme Court to argue, I will feel like there is one chair missing.

From day one of law school and now here, 11 years later, I always felt secure knowing Tom Moyer was at the helm of Ohio’s courts.  It always seemed that the Ohio community just felt good about the law, just felt good about its administration, and felt secure in knowing that the Rule of Law would prevail in Ohio with Chief Justice Moyer as Captain.

He had a grand presence about him without ego.   He was academic, certain, and steadfast in his logic.  He cared very deeply for the State of Ohio and it cared for him as well.  He has left the Court much better than he found it and my deepest concern is whether his successor will do the same.

I will miss Tom Moyer and whether consciously or not, so will the State of Ohio.