Friday, August 12, 2011

Biased prosecution at the hands of the Coastguard

The Coast Guard administrative law judge whose harsh financial ruling against a former fisherman put the accused out of business, then was overturned through a Cabinet-level apology with reparations of $400,000, has removed himself from overseeing the follow-up to the case.

Judge Parlen J. McKenna has defended his handling of the case against Larry Yacubian, who was a New Bedford scalloper and political activist in 2005 when the case was tried, and asserted Thursday in his motion recusing himself from presiding over the legal fees' assignment that he had no legal reason to do so.

The National Oceanic and Atmospheric Administration and its National Marine Fisheries Service have used the Coast Guard administrative law judge system to hear cases the agencies have brought against fishermen and fishery-related businesses.

The administrative judge's actions in and outside the courtroom were chastised in May by a special judicial master retained by federal Commerce Secretary Gary Locke, who called in retired federal magistrate Charles B. Swartwood III to examine the most egregious cases of justice miscarried against the fishing community. The additional probe came in the aftermath of a two-year investigation by the Commerce Department Inspector General Todd Zinser.

Based on Swartwood's findings, Locke apologized to Yacubian, who moved to Florida after his business was destroyed by the penalties imposed by McKenna, and returned the $400,000 to him.

A subsequent motion seeking legal fees, filed by Yacubian's attorney, Pamela Lafreniere, set in motion another conflict with McKenna when he was assigned to hear the fees portion of the case three months after Locke had issued an order to terminate NOAA's contract with the Coast Guard administrative law judge system.

Lafreniere filed a motion on Monday to have McKenna recuse himself from the case. Since then, the Times has reported that McKenna had recruited the entire cohort of Coast Guard ALJs to help him craft a self-defense motion which he introduced to an unrelated case in Alaska. Emails show that he also asked his colleagues to read and advise him about a blog posting critical of his handling of the Yacubian case and the NOAA justice system in general.

In backing off the legal fees hearing assignment, McKenna contrasted his form of judicial action from that operating under the classic rules of American justice, stating that he considered himself not from an independent branch of government, but instead a part of the agency that brings the cases.

"Appearance of bias is the incorrect standard to use in disqualification of an administrative law judge," he wrote, "because administrative law judges work for the agency whose action they review and an 'appearance of impropriety' standard would require recusal in every case ... No justifiable basis exists for applicants and their counsel to claim actual bias or prejudgment in this case despite their efforts to raise issues that have nothing to do with resolving (the) applicant's ... claim.

"Nevertheless, in order to ensure that applicants receive consideration for their ... claim without unnecessary distractions," he continued, "and to uphold the integrity of the Coast Guard's ALJ program from further baseless attacks, I will recuse myself from these proceedings."

McKenna's handling of the case brought by NOAA law agents and litigators against Yacubian for fishing in a closed area was harshly criticized by Swartwood, who found that McKenna flouted an order by a U.S. district court judge to begin anew the penalties portion of the case; instead, McKenna reinstated the harsh penalties sought by NOAA.

Swartwood also concluded that McKenna had created "at least" the appearance of a conflict of interest by traveling to Kuala Lumpur, Malaysia, immediately after the case with the two NOAA litigators on the case. The trip was financed by NOAA law enforcement, according to documents released under the federal Freedom of Information Act.

Referring to McKenna's argument that the "appearance of bias is the incorrect standard" for recusal, Lafreniere told the Times in a telephone interview Friday that she was using the U.S. Supreme Court's standard for impartiality, "not the 'appearance of bias' standard."

"In the motion to recuse. I argued actual bias. He called my client a 'recidivist' in a third-party action," she said.

McKenna wrote that Yacubian was a "recidivist" in a 34-page offering to also recuse himself from an unrelated case ongoing in Alaska. The motion served as a platform for McKenna to rebut the allegations by Swartwood which were adopted by then Commerce Secretary Locke in May.

The Yacubian case and a 10-year push by NOAA law enforcement's effort to prove that the Gloucester Seafood Display Auction was operating an alleged — and never shown — black market fish brokerage have become the case studies of a law enforcement system that has been the focal point of the IG's office and Swartwood probes.

Administrative Law Judge Walter J. Brudzinski and Michael Devine, who heard cases brought against the auction, have also been assigned to hear the legal fees issues still outstanding in that case.

However, Paul Muniz, the attorney from Burns & Levenson for the auction, has not motioned for either judge to recuse himself. He has told the Times he is considering the action, and praised Lafreniere for her action.

Original report here

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