Another Quick Victory for California Business
November 09, 2018
A former employee of a large healthcare provider client sued following her termination for poor performance. After aggressively pressing for basic proof of her claims, and following her repeated inability to provide any even after being ordered to do so, the Court granted our motion for terminating sanctions and dismissed the case. If you are an employer in California and are being shaken down by a current or former employee over fabricated claims of injustice – don’t just roll over, fight back.
Another HUGE Win for California Businesses and Employers!
November 09, 2018
Godes & Preis, LLP trial attorneys Jim Godes and Joshua Mino just prevailed (100 percent defense verdict) over a scorched-earth employment claim in downtown L.A. on behalf of a large institutional health care provider! If you are an employer in California and are being shaken down by a current or former employee over fabricated claims of injustice – don’t just roll over, fight back!
Godes & Preis, LLP, Obtains Defense Verdict on Age Discrimination Claims Brought by Long-Term Employee Terminated for Misconduct; Court of Appeal Affirms Judgment
June 05, 2014
Godes & Preis, LLP, successfully defended a large acute care hospital against an age discrimination and breach of contract lawsuit brought by a 56-year-old nurse that had been employed by the hospital for approximately 28 years before she was terminated for harassing another employee. Despite the difficulty inherent in defending the termination of such a long-term employee, following a multiple week trial, Godes & Preis, LLP, attorneys obtained a dismissal of the breach of contract claim and a jury verdict on the plaintiff’s age-related claims. Plaintiff appealed but a unanimous Court of Appeal held: "We find no error and affirm the judgment." The hospital was awarded its costs at trial and on appeal.
March 5, 2013
Hon. Michael Brenner
Orange Superior Court
Further Description: Breach of Covenant of Good Faith and Fair Dealing
Plaintiff – Rosemary Amezcua-Moll, Sarah Nowels (Amezcua-Moll & Associates, PC, Orange)
Defendant – James N. Godes, Oliver B. Dreger (Godes & Preis LLP, Irvine)
Medical Plaintiff – Virginia Mintzlaff, psychology.
Plaintiff, Virginia Cabaluna, was a 56-year-old charge nurse who was terminated after approximately 28 years of employment, despite above average overall performance reviews for alleged “insensitiv[ity] to [a] co-worker, [and] unprofessional, unacceptable behavior.” Ms. Cabaluna presented a birthday cake to a co-worker who she later found out did not celebrate birthdays due to her religious practices.
Plaintiff’s Contentions: Ms. Cabaluna contended that she was terminated because of her age, 56, and that Hoag’s stated reason for terminating her was merely a pretext for age discrimination. Ms. Cabaluna also contended that she had an implied contract of employment that provided that she could only be terminated for good cause, and that no such good cause existed. Accordingly, Ms. Cabaluna contended that her termination constituted a breach of the alleged implied contract of employment and an implied covenant of good faith and fair dealing. Ms. Cabaluna also contended that Hoag intentionally caused her to suffer severe emotional distress.
Defendant’s Contentions: Hoag denied that it discriminated against Ms. Cabaluna on the basis of her age and contended that age played no role in her termination. Hoag contended that it had a legitimate, non-discriminatory reason to discharge her. Hoag’s stated reasons for discharging Ms. Cabaluna were due to her unprofessional, unacceptable behavior, and insensitivity to a co-worker. Hoag also denied that any implied employment contract existed, and contended instead that Ms. Cabaluna was an at-will employee. Hoag also denied that it intentionally caused Ms. Cabaluna to suffer severe emotional distress.
Jury Trial: Length, eight days; Poll, 11-1: defense (age discrimination), Deliberation, one hour.
Settlement Discussion: No settlement discussions were had throughout the course of the litigation. However, the defendant offered $12,500 pursuant to CCP 998. The plaintiff did not accept the offer.
Result: Defense verdict on age discrimination thus rendering a verdict on the intentional infliction of emotional distress moot. Non-suit granted on additional claims for breach of implied employment contract and breach of implied covenant of good faith.
Other Information: The plaintiff has filed a Notice of Intention to Move and Motion for New Trial. The plaintiff’s Motion for New Trial is currently pending.
Lee “Hackshaw” Hamilton Podcast
July 13, 2012
December 1, 2011
Godes & Preis, LLP welcomes Oliver Dreger as the newest member of its litigation and trial practice. Prior to joining Godes & Preis, Mr. Dreger Mr. Dreger worked for a Fortune 500 company as a consultant, specializing in Department of Defense intelligence and operations analysis work. From 1999—2009, Mr. Dreger served as an intelligence officer in the United States Marine Corps. His ten years of active duty service included two combat tours with 3rd Battalion, 1st Marines in Iraq. He continues to serve in the Marine Reserves.
“Given Ollie’s proven track record of a results oriented ‘out of the box’ approach to the highly stressful and constantly evolving environment in combat, as well as his top level corporate experience and education pedigree, he brings a unique perspective to our business clients’ legal concerns and we are delighted that he chose us when he decided to focus his legal career on the private sector” said Managing Partner Joe Preis. According to Dreger, “I sought out a firm with a reputation for taking on sophisticated and challenging cases and am grateful for the opportunity to join and contribute to the Godes & Preis team.”
Mr. Dreger received his J.D. cum laude from the University of Illinois in 1998. He also received his B.A. in 1994 from the University of Illinois. He is admitted to practice in both the California and Minnesota bars.
With offices in Orange (Irvine) and San Diego (Del Mar) Counties, Godes & Preis, LLP is strategically located to enable the efficient handling of legal matters throughout Southern California, and throughout the West Coast of the United States. The firm concentrates in the areas of “business divorce” counseling and litigation (encompassing the range of issues that arise when people or groups decide not to work together, including competition and non-compete provisions, trade secrets, shareholder and partner rights, unfair and unlawful business practice litigation and corporate and partnership dissolutions), other general business litigation, employment counseling and litigation, executive compensation advice and negotiations and white collar criminal defense. Godes & Preis, LLP regularly represent clients in a variety of industries, including technology, defense, health care, aviation, transportation, finance, and sports, among others.
Daily Journal Staff WriterA former Marine who was fired from the Riverside Police Department after federal authorities charged him with killing Iraqi detainees sued the city Wednesday for nearly $9 million in damages, alleging his supervisors breached a law barring discrimination against members of the military.
Jose Nazario contends his bosses reneged on a promise to give him back his job after a jury acquitted him in 2008 of killing the allegedly unarmed detainees during a fierce firefight in Fallujah, Iraq four years earlier. He contends the department violated the Uniformed Services Employment and Reemployment Rights Act, or 38 U.S.C. Sect. 4301, which says employers can’t deny service members employment, re-employment or promotion on the basis of their service.
He’s seeking damages for lost past and future wages, benefits and bonuses, among other things. He is not seeking reinstatement.
“He fears that if [the department] now caves and agrees to rehire him based on this lawsuit, it will simply find another pretext down the road to terminate him,” said Joseph M. Preis, a partner with Irvine’s Godes & Preis who represents Nazario.
Riverside City Attorney Gregory Priamos said Wednesday that Nazario’s complaint is “without merit.”
The city “lawfully declined to rehire him,” Priamos said.
Nazario’s criminal case grabbed national headlines two years ago because he was the first service member be tried for his alleged crimes outside the military justice system.
March 10, 2010
By Paul LaRocco
A former Riverside police officer who was fired and denied an opportunity to be rehired upon being cleared of Iraqi war crimes is seeking millions of dollars in damages from the city.
Attorneys for Jose Luis Nazario Jr. filed a federal lawsuit Wednesday that alleges police promised to reinstate the decorated Marine if a civilian jury found him not guilty in August 2008 but failed to follow through.
“In this country, you’re innocent until proven guilty,” said his attorney, Joseph Preis. “He was simply counting on their promise.”
Riverside City Attorney Greg Priamos said the allegation Nazario was discriminated against based on his military record has “no merit.”
He added that the state’s Peace Officer’s Bill of Rights prevents him from specifying the reasons Nazario was terminated during his 18-month probationary period and then not rehired.
“We do not believe that any actions taken relative to his service with Riverside police in any way violated federal law,” Priamos said.
The suit claims Nazario’s termination upon his 2007 arrest by military police — and the refusal to rehire — violate the U.S. Uniformed Services Employment and Reemployment Rights Act, which protects military veterans from disadvantage based on their service.
It seeks nearly $9 million in total damages, including lost past wages, future wages, benefits and bonuses.
Nazario, 30, served eight years in the U.S. Marine Corps, including combat tours in Iraq. He was honorably discharged in 2005.
In August 2007, he was eight weeks shy of completing his probationary period with Riverside police when the Naval Criminal Investigative Service arrested him at the close of an overnight patrol shift.
“Nazario was stripped of his police uniform, dressed in civilian clothing and then ‘perp walked’ out of the police station by NCIS in front of numerous other officers who were returning to the station at shift change,” according to the suit.
Federal prosecutors said that Nazario, as a Marine Corps infantryman in November 2004, fatally shot two unarmed insurgents during a Fallujah raid and ordered squad mates to kill two others. He maintained his innocence throughout.
The trial made history because it marked the first veteran held in civilian court for overseas combat killings. A jury at U.S District Court in downtown Riverside found Nazario not guilty of voluntary manslaughter and assault with a dangerous weapon.
That same day, he walked to nearby police headquarters and began the process of reapplying for work. A former supervisor told him he’d be “back on the job in no time,” Preis writes in the complaint.
For the next year, he received “continued assurances and promises of reemployment,” according to the suit. But in April 2009, then-police Chief Russ Leach publicly stated Nazario would not be rehired.
Last December, he received a formal letter stating the same.
Nazario lost his home following his dismissal in Riverside, and soon moved back to his native New York. He plans to enroll in college.
“He’s been unable to find comparable work,” Preis said.
By Greg Risling
Jose Luis Nazario filed the lawsuit in U.S. District Court, seeking more than $4.5 million in damages.
The suit claims Riverside violated the Uniformed Services Employment and Reemployment Rights Act, a federal law that prohibits discrimination against veterans.
Nazario was acquitted of voluntary manslaughter in 2008 after authorities alleged he killed or caused others to kill four unarmed detainees in Fallujah, Iraq, in 2004.
Nazario was honorably discharged and had been a police officer for nearly two years when he was fired by the city shortly after his arrest in 2007. He claims the city said it would rehire him if he was acquitted.
In December, he was told in writing he was no longer being considered for the job.
A key issue in the case is whether allegations involving Nazario’s conduct in combat or his subsequent arrest can be used by Riverside as a reason to fire him and refusing to rehire him.
“We gave them plenty of time to do the right thing, and they refused to do it,” said attorney Joseph Preis, who represents Nazario.
Preis said the city didn’t explain why it wasn’t rehiring Nazario, who currently lives in New York and collects unemployment benefits.
A phone message left for the Riverside city attorney wasn’t immediately returned.
Nazario’s trial marked the first time a civilian jury had decided if the combat actions of a former enlisted member of the military violated the laws of war. Some jurors felt there wasn’t enough evidence against Nazario to convict him.
The charges stemmed from house-to-house fighting during “Operation Phantom Fury.” Other former Marines testified during the five-day trial that they did not see Nazario kill detainees but heard the gunshots.
Details of the incident became public in 2006, when Sgt. Ryan Weemer, Nazario’s former squadmate, volunteered details during a job interview for the U.S. Secret Service. A lie-detector screening included a question about the most serious crime Weemer ever committed.
Weemer was later acquitted by a military jury of murder and dereliction of duty.
Marine Sgt. Jermaine Nelson pleaded guilty to dereliction of duty in September after the government dropped a murder charge. A pretrial agreement spared Nelson prison time and gave him an honorable discharge.
January 4, 2010
Jim Godes and Joe Preis are veteran civil trial attorneys, with over 30 years of legal experience between them. Much of this time was spent at mid-to-large regional and national law firms, including some of the largest firms in the country. On January 1, 2010, they opened Godes & Preis, LLP.
With offices in Orange (Irvine) and San Diego (Del Mar) Counties, Godes & Preis, LLP is strategically located to enable the efficient handling of legal matters throughout Southern California, and throughout the West Coast of the United States. The firm concentrates in the areas of “business divorce” counseling and litigation (encompassing the range of issues that arise when people or groups decide not to work together anymore, including competition and non-compete provisions, trade secrets, shareholder and partner rights, unfair and unlawful business practice litigation and corporate and partnership dissolutions), other general business litigation, employment counseling and litigation, executive compensation advice and negotiations, white collar criminal defense, commercial transactions and law of armed conflict issues. Godes & Preis, LLP regularly represent clients in a variety of industries, including technology, defense, health care, aviation, transportation, finance, and sports, among others.
December 24, 2009
How can you defend those people?
That is a sneer criminal defense lawyers are too familiar with. The most diehard of the lot often retort that they are defending the Constitution.
So what of the men and women who, in the service of the nation, are accused of committing unspeakable acts in the theater of war? Rape. Murder of unarmed civilians. Torture.
Many lawyers couldn’t stomach mounting a defense of those people. And the numbers of those who would quickly dwindle when they learn there is no money for their services.
Kevin McDermott knew his client wouldn’t be able to pay him when he agreed to defend the former Marine sergeant charged with manslaughter. His client, Jose Nazario, was accused killing unarmed Iraqi detainees during a fierce Fallujah firefight.
But McDermott, a former Marine major and judge advocate general officer, and three other defense attorneys worked on the case pro bono. They secured an acquittal last year for Nazario, the first former serviceman in the nation to be tried before a civilian jury for an alleged wartime offense.
“No money was paid out to the attorneys,” McDermott, an Irvine sole practitioner, said.
McDermott is among a small cadre of civilian lawyers in California who have become go-to defenders for active and veteran military personnel in high-profile criminal cases, such as murder, rape or illegal intelligence leaking abroad or at home.
The niche isn’t a lucrative one.
While their caseloads have grown over the past few years, along with the escalation of wars in Iraq and Afghanistan, they’ve also been turning away more cases and blending federal and state criminal or civil matters into their work to help make their bread and butter.
Taking military cases pro bono, McDermott and several other attorneys said, is a way of repaying the service to which they once belonged.
“I can’t make my living with [military] cases, but I do them to help give back,” said Joseph H. Low IV, a Long Beach attorney who served eight years in the U.S. Marine Corps in the 1980s and 1990s. Troops, he said, “have the guts to go into the combat zone, and they’re not doing it for the money.”
Like the state and federal courts, the military gives defendants the option of free internal counsel. But it doesn’t fund private civilian defense counsel should a soldier choose that option. Those in the military generally don’t “make a lot of money,” McDermott said, let alone have extra cash for legal representation.
“It’s not what you’d call a Rolls Royce practice if you did it all the time,” he said.
Troops who seek out civilian lawyers, legal observers said, often do so because they are detached from the military hierarchy system and don’t have to worry about potential backlash if they wage too aggressive a defense.
McDermott said he takes about a half dozen military cases a year, mostly involving high-profile or unusual charges against Marines. His other big pro bono cases have included getting charges dropped against Capt. Lucas M. McConnell, a squad leader accused of not reporting 2005 civilian shootings in Haditha, Iraq.
In another case, McDermott this year defended a Marine reservist, a northern California cop, against charges of sharing military intelligence with his force. He got the reservist a reduced sentence that allowed him to retire without prison time.
Such work makes up about 20 percent of McDermott’s career. The rest of the time, he handles mostly federal criminal cases.
For McDermott and the other lawyers representing Nazario at trial — Douglas Applegate of San Diego, Irvine attorney Joseph Preis and Vincent Labarbera in Santa Ana — the case dominated a year of their schedules and each shelved a lot of other matters to handle it.
Nazario had been discharged from the Marines and was working as a Riverside police officer when federal prosecutors charged him with manslaughter, claiming he killed two unarmed Iraqi detainees and ordered other Marines in his unit to kill two more.
He was the first former serviceman nationwide to be tried outside the military justice system under the Military Extraterritorial Jurisdiction Act, or MEJA. The 2000 law places federal jurisdiction over civilians who commit crimes while accompanying troops abroad and former military members whose crimes are discovered after they leave the service.
Nazario’s defense team got him acquitted, arguing at trial that the prosecution hadn’t shown that the four Iraqis were actually killed.
While all the attorneys handled the case pro bono, in Preis’s situation, the firm he worked for at the time, Pepper Hamilton, paid him to defend the case. The firm also paid its research attorneys to help with the defense. The team’s $20,000 in copying costs and investigations were covered through fundraising by Nazario’s supporters and veterans’ rights groups.
Preis juggles criminal and civil military cases with complex business litigation.
“On the military side, it’s about 15 to 20 percent of my practice,” he said. Preis is a former Marine JAG attorney who served four years in active duty in the 1990s and three years in the reserves earlier this decade.
Low devotes half his practice to representing Marine, Army, Navy, Air Force and Coast Guard personnel in courts-martial and administrative board hearings on discharges. The rest is a balance of state and federal criminal defense and civil cases such as medical malpractice and personal injury.
His recent high-profile, pro bono cases have included defending Sgt. Jermaine Nelson, a Camp Pendleton Marine accused of murdering an Iraqi detainee on Nazario’s order. Nelson, who also grabbed headlines for refusing to answer federal court grand jury questions in Nazario’s case, pleaded guilty in a court-martial to a lesser charge of dereliction of duty. He was demoted to lance corporal and given a 150-day suspended sentence.
In another big case he handled for free, Low represented Marine Cpl. Marshall Magincalda, one of the so called “Pendleton 8″ ‐ seven Marines and a Navy corpsman accused of killing an Iraqi man near Hamandiya three years ago. They were charged with taking him out of his home, tying him up by the side of the road and shooting him repeatedly. Prosecutors alleged they tried to cover up the crime by making it appear the man was armed and attempting to plant explosives.
Magincalda was acquitted in the death but convicted of conspiracy in a court-martial. Most other defendants pleaded guilty to various lower-level offenses.
While their military cases mostly involve criminal charges, Preis and McDermott also take some civil matters. They are preparing to represent Nazario pro bono in a suit against the Riverside Police Department, which fired Nazario after he was charged.
The suit will seek an order reinstating him.
July 9, 2009
Hon. Jane L. Johnson
L.A. Superior Court
Topic: Employment Law
Sub Topic: Wrongful Termination
Further Description: Hostile Work Environment
Verdict: Mixed verdict
Plaintiff – Charles T. Mathews, Lirit King (Charles T. Mathews & Associates, San Marino).
Defendant – Joseph M. Preis, James N. Godes (GCR, LLP, Irvine).
Facts and Allegations:
The plaintiff worked for defendant McCollisters Transportation Systems Inc. from October 2000 to September 2007. The plaintiff was discharged on Sept. 17, 2007. Plaintiff filed suit against her supervisor, regional vice president, company president and company alleging fraud, sexual harassment, retaliation, breach of covenant of good faith and fair dealing, intentional infliction of emotional distress, negligent infliction of emotional distress, and defamation. Defendants’ moved for judgment on the pleading and demurred. Thereafter, all that remained were plaintiff’s claims for sexual harassment against the supervisor and company and failure to prevent sexual harassment, gender discrimination, and retaliation against the company only.
Plaintiff claimed that her supervisor used the “F” word and other profanity in the work place and screamed at her, thereby creating “the perfect storm of terror.” Defendant’s actions went on for some time, which caused plaintiff to complain of harassment. The harassment continued and plaintiff was ultimately fired for complaining.
The defendants claimed that there was no sexual harassment and that plaintiff was laid off as part of an on-going, company-wide reduction in force, and that elimination of her position had been planned several months before she complained. Knowing that she might be part of the reduction in force, plaintiff filed a bogus complaint to shield her job.
Damages: Plaintiff claimed economic damages of $821,251, emotional distress damages of $20,000,000, and an entitlement to punitive damages.
Specials in Evidence: LOE: $57,747 Future LOE: $821,251
Jury Trial: Length, eight days; Deliberation, three days
Result: Nonsuit on gender discrimination claim. Verdict in favor of both defendants (supervisor and company) on sexual harassment and failure to prevent, (12-0).
Verdict in favor of plaintiff against company for wrongful termination in violation of public policy for complaining of harassment. The jury awarded plaintiff $45,000, (10-2).
August 31, 2008
by Mark Walker
A former Camp Pendleton Marine acquitted last week in the slaying of four detainees during a 2004 battle for the city of Fallujah, Iraq, says his most vivid memory of those days was “constant fear.”
“We were running out of ammo and we weren’t able to clear every house,” Jose L. Nazario Jr. said Friday, one day after a U.S. District Court civilian jury declared him not guilty of manslaughter and related charges in the first-ever trial of its kind. “We were moving past buildings and structures where we could have been ambushed at any time.” It was that environment that Nazario confronted on the first of what would be 10 straight days of combat. But it would be that first day, his first time in combat, that would come back to haunt Nazario two years later. The 28-year-old former sergeant from Camp Pendleton’s 3rd Battalion, 1st Marine Regiment was indicted by a federal grand jury last year, accused of killing two of the detainees his squad encountered in a home they searched and directing junior Marines to kill two others. He is the first former service member to be tried under the Military Extraterritorial Judicial Act authorized by Congress eight years ago. A provision allows federal prosecutions of people out of the military when accusations arise against them for actions during their active-duty years.
But the Nazario case was rife with problems for prosecutors. The government had no bodies, no names to attach to the dead, no complaining witnesses and no physical evidence of any kind. What decision-makers in the Justice Department did have were statements from squad members that the detainees did not pose a threat when they were shot. Faced with those statements, deciding to prosecute Nazario was based more on the moral and ethical imperative than overwhelming evidence, according to those who practice and study military law.
One military law expert said Nazario’s case was exactly what the Military Extraterritorial Judicial Act was intended to cover. “He could not be prosecuted in a military court-martial, so this was the only available option and it was perfectly appropriate for a civilian jury to hear the case,” said Scott Silliman, a former U.S. Air Force attorney and Duke University law professor who heads its Center on Law, Ethics and National Security. “Regardless of the verdict, the law worked in this case because an alleged crime was tried in court and a decision was reached.”
Without the law, Nazario could not have been prosecuted by any court and that was not in the best interest of justice, he said. Going into the case, Nazario’s attorneys contended it was an inappropriate matter for a civilian jury. Without understanding the exigencies of the battlefield and the pressures troops faced, civilian jurors lacked the proper context, they argued. On Friday, one of those attorneys reiterated that stance. “The law has a devastating impact because the message it sends to troops is that you’d better be right because we are going to Monday-morning quarterback you for the rest of your life,” said Joseph Preis, a former Marine who along with three other attorneys represented Nazario free of charge. “We should be up front with recruits now and tell them we are going to give you a weapon, put you through hell and you better be aware that we are going to review every one of your actions in war and you could be charged with a crime years from now.”
Preis said Nazario’s legal team is considering asking Congress to amend the act so the military would be the only entity that can bring cases against former service members. “It needs to be kept out of the civilian courts because it’s just too difficult for jurors lacking military experience to be put in that position,” Preis said. Silliman disagreed. “There just aren’t going to be very many cases like Nazario’s,” he said during a telephone interview. “The law worked as it was intended.”
Bing West, a former Marine officer who has written three books on the Iraq war, including the just-released “The Strongest Tribe: War, Politics and the Endgame in Iraq,” said the Nazario case and similar ones brought against troops from Camp Pendleton in recent months represent a disturbing trend. “We have gone entirely too far,” said West, a former assistant secretary of defense. “We are attempting to place the same requirements on our soldiers and Marines in war that we place on police officers in the U.S. You simply cannot fight a major war that way.” The prosecutions, most of which have ended in withdrawal or dismissal of charges or outright acquittals such as Nazario’s, are having an effect on the battlefield, said West, who recently returned from Iraq. “It’s leading to serious skepticism on the part of those who have to fight,” he said during a telephone interview Friday. “When you get onto the battlefield and there are thousands of enemy fighters not wearing any uniform, you can’t apply the same standards that we expect of our police forces. “It seems like we want our troops to issue Miranda warnings and then collect and bag evidence in order to show what they did was proper.
Although acquitted in the manslaughter trial, Nazario’s legal troubles may not be over. The two members of the squad he was leading when the slayings occurred face trials at Camp Pendleton on charges of murder and dereliction of duty. While Nazario faced the possibility of 10 years or more in prison, the men he led face a possible life prison term.
Those men, Sgts. Ryan Weemer and Jermaine Nelson, defied a subpoena ordering them to testify at Nazario’s trial and were cited by U.S. District Judge Stephen Larson with criminal contempt of court. They face a Sept. 29 hearing that will determine if that finding stands and what punishment they may face.
For at least a few hours on Friday, none of that much mattered for Nazario, a married father of a 2-year-old child. He was attending a celebration at his attorneys’ Orange County offices and looking forward to being reunited with his wife and son in New York.
“I’m just looking forward to getting home and carrying on with my life,” he said.
The jury took six hours over two days to find Nazario, 28, not guilty of charges that he killed or caused others to kill the four men in Fallujah on Nov. 9, 2004. The verdict left Nazario in tears. His mother, family and friends cried, and spectators applauded so loudly that the judge rapped his gavel in a call for order. “It’s been a long, hard year for my family,” Nazario said, standing outside the courtroom. “I need a moment to catch my breath and try to get my life back together.”
The trial broke new legal ground in several ways. It was the first time a civilian jury has judged whether the actions of a former service member in combat violated the law of war. And it was a rare case — perhaps unique — of a trial involving killings in which there was neither physical evidence of a crime nor identification of any specific victim.
The case against Nazario rested primarily on the accounts of his former comrades, including two who have been found in contempt of court and now face jail terms for refusing to testify. Other former Marines testified during the five-day trial that they did not see Nazario kill the detainees but heard the gunshots. “It’s the verdict we hoped and prayed for. It’s the verdict we felt was morally correct,” said Joseph Preis, of the law firm Pepper Hamilton in Irvine, one of four lawyers who represented Nazario.
Jury forewoman Ingrid Wicken said the panel of nine women and three men — only one of whom had served in the military — found Nazario not guilty because there was not enough evidence against him. “I think you don’t know what goes on in combat until you are in combat,” said Wicken, who hugged Nazario’s sobbing mother, Sandra Montanez, after the verdict.
The charges were filed under a law passed in 2000 to provide a venue for the prosecution of civilians who commit crimes overseas, particularly on military bases. “This verdict will cause civilian prosecutors in other parts of the country to give pause before filing similar cases,” said Gary Solis, a former military lawyer who now teaches at the Georgetown University law school. “I don’t believe the law was enacted for the purpose of having civilian jurors assess the conduct of troops under fire during battle.
The trial was held in Riverside, where Nazario was working as a probationary police officer until his arrest in August 2007. He was subsequently fired. Preis said Nazario visited the Riverside Police Department immediately after the verdict to see about getting his job back. “We have every confidence that they’ll do the right thing,” Preis said.
August 29, 2008
By Jason W. Armstrong
RIVERSIDE — After deliberating less than a day, a federal court jury Thursday found a former Marine not guilty of manslaughter for allegedly fatally shooting four suspected insurgents in Iraq in 2004. The panel also found former Sgt. Jose Luis Nazario Jr. not guilty of the other charges against him: assault with a deadly weapon and discharging a firearm during a crime of violence.
Nazario’s family members and other supporters in the audience let out shrieks as the verdicts were read and started sobbing, leading U.S. District Judge Stephen G. Larson to pound his gavel and call for order. Nazario began to cry, and his four defense attorneys hugged him and one another. Federal prosecutors in the landmark case had alleged that Nazario shot and killed two unarmed Iraqis in a house during a fierce siege in Fallujah, and ordered two other Marines in his unit to fatally shoot the other two.
The trial garnered widespread attention because Nazario’s case was the first time a civilian jury heard charges against a former servicemember. The case was tried under the Military Extraterritorial Jurisdiction Act, known as MEJA, a 2000 law that places federal jurisdiction over civilians who commit crimes while accompanying troops abroad and former military members whose crimes are discovered after they leave the service. Nazario, 28, had faced up to 30 years in prison.
Joseph M. Preis, one of Nazario’s four defense lawyers and a partner with Pepper Hamilton in Irvine, said he’s “absolutely thrilled” with the verdict. “The American public spoke loudly through this jury that they aren’t comfortable second-guessing the actions of a Marine in combat,” Preis, a partner with Pepper Hamilton in Irvine, said.
Assistant U.S. Attorney Jerry Behnke said only that his office “accepts the verdict.” After prosecutors rested Wednesday, defense lawyers decided not to put on any witnesses or evidence, saying they didn’t believe they needed to because they didn’t feel the government could get a conviction based on evidence that included what other Marines heard that day.
Prosecutors’ witnesses in the five-day trial included Lance Cpl. Corey Carlisle, who said he saw Nazario, holding his M-16, standing over a dead Iraqi prisoner in a Fallujah house, lying on his back shot in the head. Carlisle said he saw another Marine, Ryan Weemer, standing with his 9-mm handgun over another dead prisoner.
Prosecutors contended Nazario shot two of the men and directed Weemer and another Marine, Sgt. Jermaine Nelson, to kill the other two. Behnke referred jurors to Carlisle’s testimony that he saw looks of “dread” on two prisoners who were still alive before he left the house. Carlisle testified that he heard two gunshots shortly after leaving the house, purportedly indicating the last two had been killed.
But Kevin B. McDermott, Nazario’s co-counsel, said in closing arguments that prosecutors hadn’t shown that four Iraqis were actually killed. The Tustin sole practitioner said the government didn’t produce names or identities of the four men or other evidence such as bullets, blood or “brain matter.”
Jurors said after Thursday’s verdict that they agreed with the defense.
Juror Kevin Grinnell, a Lake Elsinore real estate agent, said he was looking for “the government to come up with something — anything — to make me sway to their position.”
He said he wasn’t persuaded by prosecution testimony from other Marines from Nazario’s former squad who said they heard gunshots in the house.
“They heard it but they didn’t see it,” Grinnell said in court minutes after the verdict. “That wasn’t enough evidence.” Grinnell, 36, was the lone juror on the panel who had served in the military: He said he was a Navy veteran.
Weemer’s statements triggered the government’s investigation of Nazario. Weemer, while answering questions about past crimes in an interview for a Secret Service job, discussed killing an alleged insurgent on Nazario’s order, and said other Marines in Fallujah had done the same.
Nelson and Weemer are facing murder charges connected to the incident in military court. They refused to testify in Nazario’s trial, and Larson found them in contempt. He previously jailed them for refusing earlier this year, but later released them, saying nothing could coerce them to testify.
Bruce J. Einhorn, a professor of laws of war at Pepperdine University School of Law, former special Justice Department prosecutor and retired immigration judge, said while the defense focused on the lack of bodies and identification in the case, “it’s quite typical” for prosecutors in other trials, such as gang-related murders, to base their cases on such circumstantial evidence and get convictions.
“It’s also appropriate for the defense to argue against the weight of such evidence,” Einhorn said. “In the Nazario case, I think the defense arguments were more persuasive because this was the first case in the country under MEJA and the jury was reluctant to make conclusions about what happened not down the street or in the next county, but thousands of miles away.”
“We made this decision about an hour ago,” Preis, a partner with Pepper Hamilton in Irvine, said outside court. “We were surprised they rested when they did. They didn’t put on a single eyewitness [to Nazario’s alleged crimes] and no physical evidence.”
But prosecutors told jurors in closing arguments Wednesday that they had sufficient evidence to convict Nazario on manslaughter, assault and use-of-a-firearm charges.
‘This Was Execution’
Assistant U.S. Attorney Jerry Behnke told the panel the Iraqis posed no threat to Nazario or his squad when they found them in a house in a battle in Fallujah in November 2004. “The four men in the house knew the Marines were coming,” Behnke said. “[The killings] weren’t an act of self defense. This was execution.”
Nazario, 28, faces 30 years in prison if convicted of the charges. Prosecutors contend he fatally shot two Iraqis in the house, and ordered two other Marines in his unit to kill the other two during an intense fight in Fallujah.
Nazario’s case has drawn attention because the defendant, who also is a former Riverside police officer, is believed to be the first former serviceman nationwide to be tried for alleged war crimes before a civilian jury.
He’s being tried under the Military Extraterritorial Jurisdiction Act, a 2000 law that places federal jurisdiction over civilians who commit crimes while accompanying troops abroad and former military members whose crimes are discovered after they leave the service.
Prosecutors’ evidence in the weeklong trial included testimony from former members of Nazario’s squad who were part of the raid on the house. Those included former Lance Cpl. Corey Carlisle, who testified Tuesday that he saw Nazario, holding his M-16, standing over a dead Iraqi prisoner, lying on his back shot in the head.
Carlisle said he saw another Marine, Sgt. Ryan Weemer, standing with his 9-mm handgun over another dead prisoner.
Prosecutors contend Nazario shot two of the men and directed Weemer and another Marine, Sgt. Jermaine Nelson, to kill the other two.
Behnke referred jurors to Carlisle’s testimony that he saw looks of “dread” on two prisoners who were still alive before he left the house. Carlisle testified in the case that he heard two gunshots shortly after leaving the house, purportedly indicating the last two had been killed.
“Cory Carlisle had a compelling story about what he saw,” Behnke said. “He explained that he saw… four individuals in the house who were not resisting.”
But Kevin B. McDermott, Nazario’s co-counsel, refuted the government’s assessment in closing arguments. He said prosecutors had not shown that the four Iraqis were actually killed. He faulted prosecutors for introducing into evidence photos of the house where the crime allegedly occurred, but not producing other evidence, such as bullets, blood or “brain matter.”
“The crimes in this case fall woefully short of [being] proved beyond a reasonable doubt,” McDermott, a Tustin sole practitioner, said.
“Government,” he said, looking at Behnke and other federal prosecutors seated nearby. “If you can take photos, why can’t you take a forensic team in there? Can’t you [do] more than rely on testimony of young men who have been through hell?”
Prosecutors’ investigation began in 2006 when Weemer, while answering a question about a past crime in an interview for a Secret Service job, discussed killing an insurgent on Nazario’s order, and said other Marines in Fallujah had done the same.
Nelson and Weemer, who are facing murder charges connected to the incident in military court, refused to testify in Nazario’s trial despite a warning from the trial jurist, U.S. District Judge Stephen G. Larson, that they could be sent to jail for contempt.
The case raised debate over whether non-military jurors can digest the significance of decisions made in combat scenarios.
Of the 12-person jury, only one has served in the military — a stint in the Navy a decade ago. The case is U.S. v. Nazario, EDCR07-127SGL (C.D. Cal., filed Sept. 4, 2007).
August 22, 2008
Riverside, California (AFP) — Two US Marines facing murder charges in connection with the deaths of Iraqi prisoners in Fallujah in 2004 were declared in contempt of court Friday after refusing to testify against a former comrade on trial.
Lawyers for Jermaine Nelson and Ryan Weemer said the Marines would not give crucial evidence for the prosecution against Jose Nazario, despite assurances their testimony would not be used against them in their military trials.
Nelson and Weemer are both charged with unpremeditated murder and dereliction of duty for their roles in the killing of four unarmed Iraqis taken prisoner during fierce fighting in Fallujah four years ago.
Nazario, 28, is being prosecuted in a US Federal Court on charges of voluntary manslaughter, assault with a dangerous weapon and discharging a firearm. It is the first time a military veteran has been tried by a civilian jury for actions that occurred during combat.
Nelson’s lawyer Joseph Low and Weemer’s counsel Christopher Johnson told Judge Stephen Larson that neither soldier would give evidence against Nazario.
The refusal to testify came despite Larson informing lawyers that the military prosecutor overseeing their courts martial at Camp Pendleton had said in a letter that Nelson and Weemer’s testimony would not be used against them.
“There is no doubt in my mind as a matter of law, nothing that is said in this courtroom could be used in Camp Pendleton. Period,” Larson said.
However Low said lawyers were skeptical that the letter would carry enough protection, noting that it had not been signed by the Marines’ top commander.
“Why is it the one person who could sign it won’t do it?” Low asked the judge. “It’s suspicious, sir.”
Both Weemer and Nelson were jailed earlier this year for contempt after refusing to testify against Nazario during a grand jury hearing.
However Larson declined to jail the two men on Friday, instead ordering them to return to court on September 29 to begin contempt proceedings.
On Thursday, prosecutors told the jury that Nazario had ignored clear rules about how to treat prisoners and ordered the execution-style killing of four “unarmed, submissive, docile” detainees during a house search.
Nazario is alleged to have shot dead two of the captives himself before ordering subordinates Weemer and Nelson to kill the others.
The case came to light after Weemer, 25, underwent a background screening for a job in the US Secret Service in 2006, and gave details of the incident after being asked if had ever taken part in an unjustified killing.
The revelation triggered an investigation by the US Naval Criminal Intelligence Service which saw Nazario’s squad mates questioned.
However without Weemer’s testimony to the events in Fallujah, the prosecution’s case appears to have been weakened.
“This is the ῢno’ case — no bodies, no evidence, no identification of alleged victims, no witnesses,” defense lawyer Joe Preis told AFP on Friday.
Asked what effect Nelson and Weemer’s refusal to testify would have on the trial, Preis replied: “It’s our position that it has no impact on this no case. (But) It doesn’t hurt us for sure.”
Former Marine Sgt. Jose Luis Nazario Jr., 28, from New York, speaks about his impending federal trial, at one of his attorney’s, Joseph M. Preis’, office in Irvine, Calif. Nazario faces charges of shooting detainees during the 2004 battle of Fallujah, in Iraq. It’s a precedent-setting prosecution.
August 20, 2008
By Steve Liewer
When Jose Nazario goes on trial this week in Riverside on charges of voluntary manslaughter, he won’t exactly face a jury of his peers. Nazario, 28, is a former Camp Pendleton Marine sergeant accused of executing two prisoners during the battle to retake Fallujah, Iraq, from al-Qaeda militants in November 2004.
Two of Nazario’s men, Marine Sgts. Ryan Weemer and Jermaine Nelson, are facing courts-martial at Camp Pendleton because they are still on active duty or in the reserves. But because Nazario had left the Marine Corps, only a civilian federal court has the jurisdiction to try him. He’s the first former service member to be tried under an 8-year-old law passed primarily to allow prosecution of U.S. civilians connected to the military who commit crimes overseas.
“This is a trend-setting case,” said Joseph Preis of Irvine, one of Nazario’s three pro-bono attorneys. Opening arguments are expected tomorrow in U.S. District Court in the city where Nazario was working as a probationary police officer at the time of his arrest.
Some observers don’t like the idea that a Marine’s combat actions are being judged by civilians who know little of war. “You’re talking about a group of people that validly wake up every morning with an intent to kill,” said Colby Vokey of Dallas, a Marine Corps defense attorney at Camp Pendleton until his retirement a few weeks ago. “That’s a little tough to grasp for someone who has never been in that situation.”
Nazario is facing a civilian trial under the Military Extraterritorial Jurisdiction Act, which Congress passed in 2000. The law plugged loopholes created by a pair of mid-1950s Supreme Court decisions that said military courts had no authority to prosecute civilians, including former service members, during peacetime. Congress acted because of outrage over a child-rape case in Germany that could not be prosecuted.
One of the legislation’s sponsors said prosecuting former military personnel was “not the motivation” for passing the law. “I don’t fault the Department of Justice for using what legal authority they have if a clear criminal act has been committed,” Sen. Jeff Sessions, R-Ala., told The Associated Press. “But I do think it would be preferable for crimes committed on active duty to be prosecuted by court-martial rather than in civilian courts.”
Prosecutors said the Fallujah captives were shot Nov. 9, 2004. The killings came to light when Weemer told the U.S. Secret Service about them during a lie-detector screening for a job interview. Weemer — who was called back to active duty because, unlike Nazario, he was still on reserve status — has pleaded not guilty to charges of unpremeditated murder and dereliction of duty. Nelson has not entered a plea, but his attorneys have said he is innocent.
Several Marines allege that Nazario shot two detainees who were captured while his squad searched a house, according to a report by the Naval Criminal Investigative Service. The document said four Iraqi men were killed during the incident. It also said the squad had been taking fire from the house. After the troops entered the building and captured the insurgents, Nazario radioed his superiors. “Nazario said that he was asked, ‘Are they dead yet?'” the report said. When Nazario responded that the captives were alive, he was allegedly told by the Marine on the radio to “make it happen.” Nazario later received the Navy-Marine Corps Commendation Medal with a “V” for combat valor and leadership in Fallujah. He left the Marines in 2005, not long after his combat tour ended. He was arrested Aug. 7 last year.
In an interview with the AP on Saturday, Nazario said he lost his police job and hasn’t been able to find work since. “Nobody wants to hire you if you have been indicted,” he said. Without income, Nazario said, he has been forced to move in with relatives in New York. He and his wife resorted to selling some of their household goods to a pawn shop. His wife, once a stay-at-home mother to their 2-year-old son, has gone to work as a receptionist, Nazario said. She won’t be able to attend his trial. “She has to work,” he said, his eyes reddening as he blinked away tears. “We need the money.”
If convicted, Nazario faces more than 10 years in prison. His attorneys — Preis, Doug Applegate and Kevin McDermott — fear the prospect of civilians determining his fate.
“I have every confidence in the people of Riverside,” said Preis, who like Nazario’s other lawyers is a former Marine. “You’ve got to be able to put somebody in the shoes of a 24-year-old Marine kicking down doors.”
While not ideal, it’s necessary for civilians to be deciding such cases, said Joseph Casas of Carlsbad, a former Navy lawyer now in private practice. “It’s the lesser of two evils,” Casas said. “If an atrocity was committed, who else is going to try him? Is he going to escape prosecution because he’s no longer in the military?”
Preis and other lawyers said Congress should move combat crimes back into military courts. He said a politically motivated prosecutor could accuse veterans of conflicts as far back as the Korean and Vietnam wars. “As long as (the law) is out there in the arsenal of a U.S. attorney, they’re going to use it,” Preis said. “It means we’re going to be second-guessing Marines for the rest of their lives.”
August 8, 2008
By Chelsea J. Carter, AP Military Affairs Writer
SAN DIEGO — A Camp Pendleton Marine sergeant was ordered Friday to stand trial on charges of unpremeditated murder and dereliction of duty in the killing of an unarmed detainee in Fallujah, Iraq.
Lt. Gen. Samuel Helland ordered the court-martial of Sgt. Ryan Weemer after finding there was sufficient evidence to send him to trial. Weemer is one of three current and former Marines accused of breaking rules of engagement and killing four men they had captured after a platoon commander radioed to ask whether the Iraqis were “dead yet.” A telephone message left by for Weemer’s attorney, Paul Hackett, was not immediately returned.
The killings occurred in November 2004 during the invasion of Fallujah, one of the fiercest ground battles of the Iraq war. The case came to light in 2006, when Weemer volunteered details to a U.S. Secret Service job interviewer during a lie-detector screening that included a question about the most serious crime he had ever committed.
Weemer, of Hindsboro, Ill., is charged with one count of murder and six counts of dereliction of duty encompassing failure to follow the rules of engagement in Fallujah and failing to follow standard operating procedures for apprehending or treating detainees or civilian prisoners of war.
Helland’s decision to order the court-martial follows an Article 32 hearing, similar to an evidentiary hearing, where prosecutors argued that Weemer, a burly 25-year-old honored with a Purple Heart, should be tried for unpremeditated murder because he knew the rules of engagement forbade harming anyone in his custody. “I don’t think it is anything that was unexpected,” Weemer’s attorney, Paul Hackett, said of Helland’s decision. He said he expects Weemer to be exonerated.
During the hearing last month, prosecutors played a tape recording of the Secret Service interview where Weemer recounted arguing with his squadmates about what to do with the detainees — all military-age males captured in a house where weapons were also found. The squad was under pressure from the platoon to get moving. Marine Corps spokesman Lt. Col. David Griesmer said Weemer next faces arraignment on the charges at Camp Pendleton. A date has not been set.
Helland, the commanding general of the 1st Marine Expeditionary Force and Marine Corps Central Command, followed the recommendations of Maj. Glen Hines, the investigating officer, to order the court-martial.
Weemer’s attorney has put much of the blame on Weemer’s former squad leader, saying Jose Nazario Jr. escalated the situation inside the house by beating one detainee with the butt of a rifle after the weapons cache was found. “Sgt. Weemer acted in self-defense,” Hackett said. “We strongly believe there is credible evidence to show that.”
Nazario, 27, of Riverside, Calif., was charged with two counts of voluntary manslaughter in the killings of two captives, but a spokesman for federal prosecutors said Friday that the charges changed with a superseding indictment handed down in June.
The former sergeant is now charged with one count of voluntary manslaughter for allegedly killing or causing others to kill four unarmed detainees, along with one count of assault with a deadly weapon and one count of discharging a firearm during a crime of violence. The charges were filed in federal court because he has already completed his military service. Nazario has pleaded not guilty; his trial is set to begin Aug. 19.
Nazario’s attorney, Joseph Preis, said they were puzzled by the enhanced weapons charges. “We are very disappointed by this, and find it incredibly ironic that the same government that put the rifle in his hand is now seeking to up the ante because of his alleged use of that rifle,” Preis said.
“We’ve got to remember that everybody in Fallujah had a rifle, good guys and bad guys, and to single out Sgt. Nazario for the alleged use of that rifle in the charged offense really paints the picture of what the government seeks to do here.”
Another Marine, Sgt. Jermaine Nelson, 26, of New York is slated to be court-martialed in December on charges of unpremeditated murder and dereliction of duty for his role in the alleged killings. Although he has not entered a formal plea in military court, Nelson’s attorney has repeatedly said his client was innocent. Nelson and Weemer had both been jailed in June for contempt of court for refusing to testify against Nazario before a federal grand jury believed to be investigating the case. Both were released July 3 and returned to Camp Pendleton.
August 21, 2007
By Jerry Magee
Atlanta Falcons quarterback Michael Vick, whose strong arm and quick feet made him one of the most popular players in the National Football League, is apparently headed to prison.
Vick has agreed to plead guilty to federal charges that he has been involved in dogfighting, Vick’s legal team said yesterday.
Vick is expected to enter his plea Monday in a U.S. District Court in Richmond, Va. His decision not to contest the charges against him was announced by Billy Martin, his lead attorney.
“After consulting with his family this weekend, Michael asked that I announce today that he has reached an agreement with federal prosecutors regarding the charges pending against him,” Martin said in a statement.
Prosecutors had been prepared to possibly add more charges, such as racketeering, to those detailed in an indictment against him and three other defendants July 17. The indictment charged the four defendants with conspiracy to travel in interstate commerce in aid of unlawful activities and to sponsor a dog in an animal-fighting venture. A Nov. 26 trial date had been set.
The defendants each face a maximum of five years in prison and a $250,000 fine.
Neither Vick’s attorneys nor prosecutors provided details of the plea agreement. Vick, 27, is expected to receive a prison sentence ranging from one year to 18 months, but U.S. District Judge Henry Hudson, known for his severe sentencing policies, could impose the maximum five-year sentence.
The sentence could be only part of Vick’s punishment. The NFL can take action against him for violating its personal conduct policies. The NFL constitution gives the commissioner unlimited powers in this area, and Commissioner Roger Goodell could suspend Vick indefinitely.
Because gambling is involved in dogfighting, Goodell is even less likely to view the Vick matter lightly. Gambling is anathema in the NFL. Goodell also has taken a strong line in defending the league’s image. He recently suspended Adam “Pacman” Jones, a Carolina Panthers defensive back, for a year after a series of arrests.
Vick reportedly decided Friday to plead guilty after two of those indicted with him, Quanis L. Phillips and Purnell A. Peace, agreed to testify against him. Earlier, the fourth defendant, Tony Taylor, said he would testify for the prosecution.
In the 18-page indictment, Vick is accused of using his property in Smithfield, Va., as a base for a dogfighting operation. The indictment contends that Vick started acquiring pit bulls for the fighting operation, including buying four dogs from a person in North Carolina, one from a person in New York and six dogs and puppies from a person in Richmond, Va.
Vick is accused of executing one dog that did not perform well in a “testing” session by shooting the animal. He also allegedly joined Peace and Phillips in executing about eight dogs that also did not perform well. These dogs were allegedly killed by various methods, including hanging, drowning and slamming at least one dog to the ground.
Phillips, Peace and Taylor said Vick provided virtually all of the gambling and operating funds for the operation.
In February 2005, Vick received a nine-year contract from the Falcons valued at $130 million, according to a source with access to NFL contractual data. The Falcons could move to recover a portion of the $22.5 million Vick received at the time of his signing, plus an additional $3.4 million bonus due to him at a later date.
As a precedent, Jim Godes, a San Diego attorney with expertise in sports-related matters, said the Falcons could cite an arbitrator’s ruling that the Miami Dolphins were due $8.5 million from Ricky Williams after the running back chose to retire before the 2004 season.
The Dolphins did not require Williams to pay the $8.6 million. He later rejoined the team, then was suspended for a year for a fourth violation of the NFL’s drug policies.
July 27, 2007
Sports, D4: “His career in the NFL may be over. He may be playing in the Arena League.”
Jim Godes, San Diego attorney with expertise in sports law, on Atlanta Falcons quarterback Michael Vick, who has been accused of leading a dogfighting ring.
April 11, 2007
By Jerry Magee
Adam “Pacman” Jones, the most roguish figure in a rogues gallery of NFL players with arrest histories, yesterday was suspended for the 2007 season for violating the league’s personal conduct policy.
In suspending the Tennessee Titans cornerback, Commissioner Roger Goodell made the most ringing decision in his brief period in the NFL’s highest office and also handed out an eight-game suspension to Cincinnati wide receiver Chris Henry, already under a two-game suspension.
Goodell advised the players of his actions in letters to them in which he said they have brought embarrassment and ridicule to themselves, their teams and the league and damaged the reputations of players throughout the league.
Jones has been questioned by police 10 times and arrested five times since the Titans made the former West Virginia athlete the sixth player taken in the 2005 draft and awarded him a five-year contract and a signing bonus of $5.63 million. Henry, like Jones a former West Virginia player, was arrested four times in 14 months.
Jones can apply for reinstatement after the 10th week of the 2007 season.
“But Goodell did not impose a year-long suspension if he intended to make it a 10-game suspension,” said Jim Godes, a San Diego attorney with expertise in sports law.
For Jones’ application for reinstatement to be successful, he would have to satisfy a number of behavioral standards spelled out for him and could have no legal charges pending against him. Las Vegas police have recommended a felony charge of coercion and misdemeanor charges of threat and battery be brought against Jones as the result of his role in a Feb. 19 altercation at Minxx, a Las Vegas strip club. In the melee, there was a shooting that left one man paralyzed.
Jones’ attorney, Manny Arora, had no comment when contacted by The Associated Press. The player’s mother, Deborah Jones, said, “I just hope this can be changed. It’s not fair.”
Both the Titans and the Bengals supported Goodell’s ruling.
As a consequence of his suspension, Jones will not be paid the $1,292,500 base salary or the $173,386 workout bonus he was due in 2007. The Titans also could call for repayment of a fifth of his signing bonus, which would mean his suspension would cost him about $2.5 million.
Jones is the first NFL player to be banished for a year since Miami running back Ricky Williams was suspended for violating the NFL’s substance abuse policies for a fourth time. After Williams was suspended, an arbitrator ruled he owed the Dolphins an $8.6 million repayment of a signing bonus he was awarded before he determined to absent himself in 2004, but the Miami club did not require Williams to make that payment.
Williams currently is petitioning to be permitted to return to the NFL.
Goodell last week summoned Jones and Henry to meetings in New York “so I can look them in the eye,” the commissioner said during the league’s recent spring meetings in Phoenix. Goodell, meantime, had been moving to assure that any sanctions against the athletes would not be challenged by the NFL Players Association.
“Goodell had all his ducks in line and ready to go,” Godes said. “He had everyone lined up before he made this decision.”
According to Godes, while the NFL constitution invests broad powers in the commissioner, they are not unlimited. League rules can be challenged in a variety of ways. After the NFL would not permit him to enter its college draft, Ohio State running back Maurice Clarett sued under antitrust laws and won.
An appellate court, however, reversed the decision. Clarett then sought to take the matter to the Supreme Court, which refused to act.
Any challenges of Goodell’s actions are not likely to be rewarded, according to Godes. “That would further solidify Goodell’s power and also further entrench this policy,” the attorney said. “It’s a politically astute move. It’s not bulletproof, but it is likely to withstand legal challenge.”
Goodell said his sanctions were meant to protect the integrity of the NFL. “The highest standards of conduct must be met by everyone in the NFL because it is a privilege to represent the NFL, not a right,” Goodell said in a statement. “The players and all the members of our league have to make the right choices and decisions in their conduct on a consistent basis.”
The league, alarmed by how many players have been running afoul of the law, has established a player advisory council on these matters. Further, in a new code governing conduct by players off the field, it has taken these steps:
Expanded the symposium rookie draft choices are required to attend to a year-long orientation.
Expanded a life-skills program for all players.
Arranged for players to be briefed by law enforcement.
Required teams to enhance their compliance with laws.
Expanded counseling and treatment for offenders.
March 25, 2007
By Jerry Magee
Broad powers go with being commissioner of the NFL. How broad they are could be about to be tested.
At issue is Commissioner Roger Goodell’s intention to hand down severe penalties, possibly including year-long suspensions, to players who repeatedly commit unlawful acts. Where Goodell’s plan could come under legal challenge is if he imposes his penalties before the players’ cases have gone through the courts.
The matter is the touchiest one that is to come up during the NFL’s annual spring meetings scheduled to convene today at the Arizona Biltmore Hotel in Phoenix.
How sweeping are the commissioner’s powers is spelled out in the Collective Bargaining Agreement, the document that details the conditions under which NFL players are employed. He can act against players “for conduct detrimental to the integrity of, or public confidence in, the game of professional football.”
For Goodell to deal out suspensions to players whose cases are pending in the courts could, however, bring about legal scrutiny. To win support for his plan, Goodell has been going about seeking approval for his program from teams, players, club executives and in particular the officers of the NFL Players Association.
“Politically, it is something they have to do,” said Jim Godes, an attorney representing the firm Theodora Oringher who has expertise in sports law. “The problem is epidemic. Take a look at the Bengals. Players are running amuck. You can see that the teams have not been effective in controlling them. The league has to step in.”
Nine Cincinnati players have been arrested since the start of 2006. Receiver Chris Henry has received a two-game suspension for two incidents and could be subject to further discipline for two other incidents. Tank Johnson, a Chicago defensive tackle, has received a four-month prison sentence for a probation violation relating to an earlier weapons charge. Pacman Jones, a Tennessee safety, has been questioned by police concerning at least 10 incidents, including being present at a Las Vegas strip club where a triple shooting occurred.
Most recently, Miami linebacker Joey Porter was charged with misdemeanor battery after he was accused of punching Levi Jones, a Bengals offensive linemen, outside a Las Vegas casino.
“Now it’s like dad coming home from work and saying to his unruly children, ‘OK, we’ve got to end this,'” said Godes.
Goodell is to lay out to owners during the meetings what disciplinary measures he is considering, but his proposal does not have to be voted on to go into effect.
As Goodell’s punitive powers are structured, any player against whom he acts has 20 days in which to petition for a hearing. Within 10 days after receiving the notice of appeal, the commissioner must designate a time and a place for the hearing. The commissioner then renders a decision, which is binding.
In other matters at the meetings, owners are to consider making instant replays permanent, are to vote on allowing one defensive player on each team to have a communication device in his helmet, just as quarterbacks do, and are to weigh moving kickoffs from the 30-to the 35-yard line at the start of overtime periods.
Teams winning the coin flips have won 62 percent of overtime games since 1998. The thinking of the league’s competitions committee seems to be that moving kickoffs to the 35 would result in more touchbacks and thus give the receiving team less favorable field position.
January 5, 2004
Christopher Carlton, Carlton, DiSante and Freudenberger, Irvine, CA (Otay Water District)
James N. Godes, Foley & Lardner, San Diego, CA (Jaime Bonilla)
Wendy L. Trucker, Foley & Lardner, San Diego, CA (Jaime Bonilla)
Claudette G. Wilson, Wilson Perry Kosmo & Turner, LLP, San Diego, CA (Robert Griego)
Facts and Allegations:
Plaintiff Ruben Rodriguez, 50, was hired as an auditor for the Otay Water District in San Diego County in February 2001. He was placed on administrative leave less than three months later and terminated on July 18. Rodriguez contended that he was wrongfully terminated for “whistleblowing” and that the defendants defamed his character.
The defendants contended that Rodriquez was properly terminated for, among other reasons, dishonesty and insubordination. The defendants asserted that they had not defamed Rodriguez.
Injuries/Damages: emotional distress
Rodriquez claimed damages for lost wages and benefits
Result: The jury returned a defense verdict for all three defendants.
$550,000 to the Otay Water District
$125,000 to Jaime Bonilla, $75,000 to Robert Griego
Trial Length: 4 weeks
Jury Deliberations: 4 hours
Jury Poll: 9-3 for Otay Water District and Jaime Bonilla, 12-0 for Griego
Michael K. Nakada, Ph.D., Economics, San Diego, CA
July 11, 2003
By Roscoe Nance and Vicki Michaels
The Eagle County district attorney will not decide to charge NBA star Kobe Bryant with felony sexual assault against a 19-year old woman.
District Attorney Mark Hulbert had said he expected a decision by the end of the week. However, Hulbert said Thursday in a news release that his office is awaiting more information.
Bryant’s attorneys weren’t available for comment.
Bryant was arrested July 4 after the woman accused him of attacking her at the Lodge at Cordillera.
As the district attorney delayed his decision and the Colorado Bureau of Investigation studied evidence, reports surfaced about Bryant’s possible interaction with the alleged victim.
The Los Angeles Times reported employees of the resort saw Bryant talking and flirting with the alleged victim when he checked in. Another employee told the newspaper that hotel security was called to Bryant’s room in reference to noise complaints from other guests early in the morning of July 1.
The alleged victim delivered room service to Bryant’s room, the New York Post reported. The newspaper said she returned 20-30 minutes later shaking and in tears.
Legal experts are divided on the significance of Hurlbert’s decision not to charge Bryant at this time.
“I think it’s dangerous to read anything into it,” Said Larry Pozner, past president of the National Association of Criminal Defense Lawyers. “You wonder if he has a problem and is trying to cope with that problem. My first thought is he’s missing something. In a straightforward case it comes together. We have so little info. It’s very difficult read those tea leaves.”
Jim Godes of Foley & Lardner, a national law firm that has a sports industry team, says the decision could be delayed in light of how the case has been handled. Eagle County Sheriff Joe Hoy obtained an arrest warrant for Bryant even though he has yet to be charged.
“The DA may want to take a step back and make it appear to be a more considered, methodical process,” Godes said. “The sheriff’s action made it seem a rush to judgment. The DA is trying to put brakes on it. It makes absolute sense to put off a decision. I wouldn’t be surprised to see further delays.”