Wednesday, July 11, 2018

Taxi Sex Leads To Proposed Suspension

A Louisiana Hearing Committee proposes a six-month suspension for an attorney's conviction

the Committee finds Respondent violated the following Rule of Professional Conduct: Rule 8.4(b), which provides that it is a violation for an attorney to commit a criminal act, especially one that reflects badly on the lawyer's honesty, trustworthiness or fitness as a lawyer in other respects. The Respondent's criminal convictions for simply battery and criminal mischief involving an incident with a New Orleans cab driver wherein Respondent and the cab driver had a sexual encounter is a clear violation or [sic]  Rule 8.4(b). The Respondent appealed her criminal conviction to the Louisiana Fourth Circuit Court of Appeal; however, her conviction was affirmed. See State v. Gaubert, 2015-0774 (La. App. 4 Cir. 12/9/15); 179 SoJd 986, reh'g denied (Jan. 4. 2016); writ denied, 2016-0122 (La. 1/23/17).

Facts

This disciplinary matter arises solely in regard to Respondent's criminal convictions for simple battery and criminal mischief. These convictions stem from an incident involving Respondent and a New Orleans cab driver, Hervey Farrell. On April 6, 2012, Respondent was a passenger in Mr. Farrell's taxicab. The two had a sexual encounter in the taxicab. Mr. Farrell used his cellphone to take a bawdy video of Respondent. Following the encounter, Mr. Farrell reported to police that he was sexually assaulted in his cab by Respondent. Respondent was subsequently charged in the Orleans Municipal Court with simple battery. On April 5, 2013, Mr. Farrell filed a civil lawsuit against Respondent in Orleans Parish Civil District Court, alleging that he suffered tort damages arising from the taxicab incident.

While the civil litigation and the simple battery charge were pending, Respondent went to the Third District Station of the New Orleans Police Department to report that she was a victim of the crimes of extortion and video voyeurism by the alleged perpetrator, Mr. Farrell. Respondent's report to police essentially asserted that Mr. Farrell emailed Respondent a copy of the video of the April incident, indicating that if he received $1 ,000.00, the video and charges he filed against the video would "go away."

While investigating Respondent's complaint against Mr. Farrell, the State charged Respondent, on October I, 2013, with one count of false swearing for the purposes of denying a constitutional right, a violation of La.R.S. 14:126.2. The State later amended the bill of information to charge Respondent with one count of false swearing for the purposes of violating public health or safety, a violation of La.R.S. 14:126.1.

The attorney did not respond to the bar charges.

The Times-Picayune reported on the criminal charges.

Authorities say a woman who in August accused a taxi driver of shooting lewd video footage of her in an extortion scheme made up the story, and charges against the cabbie have been dropped.

Jennifer Gaubert, 32, a New Orleans lawyer and self-proclaimed "public figure" who at one point hosted her own radio show, has been charged by the Orleans Parish district attorney's office with filing false statements concerning denial of constitutional rights, stemming from her complaint to police that she was filmed without her permission while in a cab in April 2012.

Prosecutors refused to bring charges against Metairie resident Hervey Farrell, who had been jailed on Aug. 29 on charges of voyeurism and extortion based on Gaubert's complaint to police.

"We didn't feel there was a basis for the charges," said Christopher Bowman, a spokesman for the district attorney's office.

In an August interview with NOLA.com | The Times-Picayune, Gaubert said she was intoxicated when she was in the cab. She said she had openly discussed her local notoriety with the cabdriver, which she said made her a target. A New Orleans native, Gaubert is known for her WGSO radio show "Law Out Loud", which she has since stopped hosting.

Gaubert said in the interview she had flirted with Farrell, 38, and kissed him, but told police she never gave him permission to film.She told police that Farrell shot video of underneath her skirt, exposing her underwear and genitals to the camera.

Farrell was the first person to contact authorities, filing a report in municipal court saying Gaubert battered him when she was a passenger in his cab. Nothing ever came of that charge.

After that, Gaubert went to police, saying Farrell sent a message threatening to release the video unless she gave him $1,000. Bowman wouldn't comment on Gaubert's charge, citing the pending case.

She has not been arrested. Arraignment is set for next week.

The conviction was noted by The Advocate.

In a case with more twists than a bag of pretzels, both Farrell and Gaubert took the witness stand, presenting starkly contrasting accounts of the April 6, 2012, cab ride to Lakeview from Galatoire’s restaurant on Bourbon Street, where Gaubert left soused after a three-hour lunch.

Farrell, 39, flatly denied trying to extort money from Gaubert under threat of releasing the video. That was the allegation that Gaubert originally brought to police in 2013, landing the cabbie in jail for nearly 30 hours before District Attorney Leon Cannizzaro’s office found holes in her story.

Since his call to 911 shortly after the cab ride — saying “She whipped out my penis and was trying to give me oral sex and I said no” — Farrell has maintained he was a victim of Gaubert’s drunken aggression after she’d hopped into the front seat during the ride.

He quickly filed a civil claim against Gaubert, whose radio show on WGSO, “Law Out Loud,” ended right after the cab ride.

At issue in the criminal case was whether Gaubert lied when, a year later, she went to police to report that Farrell had demanded money while sending the video to Gaubert’s lawyer by email.

No email documenting the alleged extortion attempt has turned up. On the witness stand Friday, Gaubert said the email claim was a minor miscommunication with police. She insisted, however, that the video had been sent, one way or another, to her attorney and friend, Brigid Collins, and that the message was clear: Pay or else.

She also said the sexual encounter was completely consensual. She said she had asked Farrell, who was holding his phone, if he was videoing her and he denied it.

In tearful testimony, she said she went to police to ensure that the video would be confiscated.

“That’s all I wanted — that the tape can’t be distributed. It was the fear of it being released that had the original effect on me,” Gaubert testified. She said she moved to Thibodaux and gave up her law practice, petrified.

“The release of it has been the best thing that’s happened to me,” she added. “What feared me the most is out there, and whether people don’t want to like me, they can. What can they hold over my head now?”

Cannizzaro’s office refused the extortion and voyeurism counts against Farrell, instead charging Gaubert with making a false statement.

Collins testified Friday that she never received an explicit “pay or play” threat from Farrell or his lawyer, though she said she did receive the video and a money demand as part of Farrell’s bid to settle the civil suit. The first solicitation was for $60,000, Collins said. “No one ever said to me the charges would go away if she paid money,” Collins testified. “I don’t recall the order, but a money demand was made, and the video was provided.”

Gaubert told police the extortion demand was for $1,000, according to a report.

Hunter reviewed the video in silence during the daylong trial, in which Gaubert’s attorneys claimed Farrell was the liar. They accused the cabbie, then a Yellow Cab driver, of taping the end of an amorous session to cover his tracks after an off-duty Jefferson Parish sheriff’s deputy came rapping on the window.

They pointed to various taxi regulations and criminal statutes that frown on cabbies having sex with fares, especially drunken ones.

“If you look at it as a whole, the wrong person is sitting at this table. It shouldn’t be Jennifer Gaubert; it should be him,” one of her attorneys, Cameron Mary, told the judge.

“It’s an outrageous (civil) demand to begin with — $60,000 to be kissed by an attractive woman. You couple that with an embarrassing video, you have exactly what’s been reported: an extortion,” Mary said.

Assistant District Attorneys Sarah Dawkins and Elizabeth Killian called those comments evidence that Gaubert hasn’t taken responsibility for her false report to police. Throughout the trial, they argued that details of the sexual encounter in the taxicab were irrelevant to the case.

 Gaubert’s attorneys, meanwhile, called up Lt. Gasper Migliore Jr., a Jefferson Parish Sheriff’s Office lieutenant who lives in the neighborhood and who testified that he walked into the alley on Vicksburg Street after seeing a Yellow Cab parked there.

“I observed a female in the driver’s seat on top of the driver, and in observing her actions, I could see she’s bucking her hips back and forth. Immediately I took my police ID out and said, ‘What the hell are you doing? This is a residential neighborhood,’ ” Migliore said.

“My view is that it was a consensual act between two consenting adults in public view. The driver didn’t even attempt to push her off. When I walked up, she got off on her own.”

Gaubert’s attorneys found Migliore only after she was convicted of simple battery last year in Municipal Court.

On the stand Friday, Farrell denied any recollection of seeing the off-duty deputy during the encounter.

Hunter allowed Gaubert to remain free on $25,000 bail while setting a Feb. 13 sentencing date. She faces up to six months in prison on the criminal mischief count.

Mary called it a disappointing “compromise verdict.” Whatever the extortion amount, or whether it came by email or “snail mail,” he argued, Farrell’s intent was clear.

Just how the two guilty verdicts against Gaubert might affect Farrell’s civil claims is uncertain. Blake Arcuri, a civil attorney for Farrell, said he was pleased with Hunter’s verdict.

Cannizzaro called the verdict “a good decision.”

“I think it supports what we have said the entire time: This woman did in fact go to the police station and make a false claim against someone. And as a result, this man was in fact arrested for a period of time and lost his job for a period of time,” Cannizzaro said. “We cannot encourage what Ms. Gaubert did.”

The DA acknowledged that police should have investigated Gaubert’s claims more thoroughly — demanding to see the purported email, for instance — before securing an arrest warrant for Farrell. “That would have saved a whole lot of inconvenience at the very least to the cab driver, and a whole lot of anguish and suffering,” Cannizzaro said.

Friday’s trial likely will not end the legal wrangling. Last year, Farrell filed a federal civil rights lawsuit, claiming he was the victim of false arrest, false imprisonment, malicious prosecution and kidnapping. The lawsuit names Mayor Mitch Landrieu, former NOPD Superintendent Ronal Serpas and three police officers as defendants, along with Gaubert.

(Mike Frisch)

http://lawprofessors.typepad.com/legal_profession/2018/07/a-louisiana-hearing-committee-the-committee-finds-respondent-violated-the-following-rule-of-professional-conduct-rule-84b.html

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