Monday, December 7, 2009

Look what's in the news again, SURRENDER!

Here we go again folks, looks like the subject of "surrender" is in the news again. I'm sure you all remember when we talked about several high profile surrenders back in early November and then the surrender of disgraced attorney Scott Rothstein to the authorities just last week. We've already established that in instances of white collar crime where the accused is represented by an attorney, it's common practice for the accused to surrender himself to the police, court or jail, yet somehow the people charged in the Bernardo Barrera mortgage fraud case weren't afforded the same courtesy. We know what the public sentiment is on this subject, we've also learned how criminal defense attorneys think about how this is to go down, but now we have another valuable insight, the opinion of a judge.

Francisco Alvarado has been writing about the Pastor Gaston Smith case over at The New Times, most recently he's been covering the allegations of prosecutorial misconduct by ASA Richard Scruggs. Among other things Pastor Smiths attorney, Michael Tein is accusing ASA Richard Scruggs of arresting the Pastor and not allowing him to surrender himself even though there were ongoing negotiations between the ASA and the Pastors attorney. Sound familiar? Late Friday evening, Judge Beatrice Butchko who is presiding over the case handed down a pretty damning opinion on the subject of SURRENDER, let's take a look at an excerpt from the hearing...

OK! As you can see the Judge established that the Pastor showed no evidence of flight risk, no danger to the community and that "it's common knowledge in white collar cases that these clients surrender". She even goes on to call the way the arrests went down "not professional"! Regardless of how the arrests went down, the prosecutors behavior sets a tone of "bad faith" against the defense, or as the Judge says:

"...leave them with this taste in their mouths and this feeling of impropriety..."
So we have to ask ourselves in the context of our case, why did Assistant State Attorney Bill Kostrzewski ORDER DETECTIVE JORGE BALUJA TO ARREST THE DEFENDANTS IN THE BERNARDO BARRERA MORTGAGE FRAUD CASE? According to the Judge Butchko it's common practice in white collar cases for the defendants to surrender, so what happened here Bill?

The other allegations of misconduct in the Pastor Smith criminal case are serious (recording witness statements without consent, etc), but they're nothing compared to what I've been finding lately on the way ASA Kostrzewski has been handling the Bernardo Barrera fraud case. I've been hearing some pretty disturbing rumors regarding Mr. Kostrzewski's behavior, allegations that if proved make the allegations against ASA Scruggs look like a walk in the park.

I've reached out to the attorneys involved in the Bernardo Barrrera case several times to see if they could comment on the way the arrests went down, I'll do so again today and see if they can provide an opinion on how things were handled.

I also forgot to mention that Mr. Alvarado and the New Times gave us a mention a few weeks back, according to the article, it looks like our blog has "irked Prosecutor Kostrzewski", sorry about that! Funny how the State Attorneys Office spokesman says
" "We are aware of the blog," Griffith says. "However, it would be inappropriate to discuss it since it involves pending cases.""
Isn't that funny? Inappropriate to discuss the case? The ASA has made more than his fair share of extrajudicial comments on this case, yet now it's an issue? Tisk, tisk. The trial date is right around the corner, I for one can't wait.

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