Is Nick Conway Employing A Nuremberg Defense?

I see nothing

"The distractions at the COG are over." - Nancy Walsh, back when Nick "4 Felonies" Conway was still running the joint.

You don't hear the "I was just obeying orders" defense too much these days. Or at least I haven't heard of anyone using it lately. I was pretty sure it had gone out of fashion somewhere around 1946, which was about the time a number of famous defendants were using it, and with little demonstrable success. But old styles do have a way of coming back from time to time, and apparently this legal fashion statement stepped right out of its metaphorical Gold Line this week, and walked straight into Los Angeles Superior Court. You can't even begin to imagine the enhanced levels of excitement when they brought this historical (or is that hysterical?) doozy back.

There are two jam packed Steve Scauzillo articles up on the Pasadena Star News website about former SGVCOG kingpin Nick Conway's involuntary rendezvous with the L.A. County Justice System, and both explain an awful lot about what has been going down there. But for our purposes today there are two specific passages we would like to cite as they reveal quite a bit about Conway defense attorney Kenny White's strategy for getting Nickarama off the meat hook. Check this out:

(From "Prosecutor spells out case against Nick Conway, former SGVCOG executive director" - click here): Later, White tried to establish that all contracts, payments and service agreements were always approved by outside attorneys working for COG. "The conflict of interest doesn't depend on advice of legal counsel," Aratani shot back.

But outside the courtroom, White repeated the defense's main theme: "Everything Mr. Conway did was approved summarily by the COG, the governing board and the COG's attorneys - in public," White said. "This demonstrates a context for what he is being charged with."

Apparently during the pretrial hearings Kenny White was of the opinion that Superior Court Judge M.L. Villar de Longoria, in deciding whether or not to send Mr. Conway and his four famous felonies to trial, might be impressed to learn that his client was only following the so-called lawful orders of his superiors. In this case the steadfastly clownish SGVCOG Executives of its Governing Board. And then there is also this:

(From "Nick Conway ordered to stand trial on charges of conflict of interest for work with SGVCOG" - click here): At issue are four contracts managed by Conway for the COG, a regional planning body, for which the COG approved amendments and extra costs amounting to at least $148,000.

Each contract represents a separate criminal count. If convicted on all four counts, Conway faces a maximum of seven years in state prison, according to the District Attorney's Office. "He sought out contracts that benefitted him," said the judge.

Kenneth White, Conway's attorney, said he appreciated the judge taking her time but did not agree with her interpretation of the evidence. "I have to respectfully disagree. The documents and records show Mr. Conway's company aggressively seeking out grants for the COG was part of the COG's Strategic Plan. This was not Mr. Conway's initiative, this was the COG's direction to him for the way it wanted to go," White said.

Obviously the Judge was not very impressed by White's "he was only following lawful orders" defense, and it didn't work any better for Nick Conway than it did the military officers and high-ranking German officials in the dock at Nuremberg in 1946. All of whom would probably have preferred to be on vacation in South America.

So what exactly is the "Superior Orders" or "Nuremberg Defense?" Here is how the usually crisply written and concise Wikipedia defines it (click here):

Superior orders (often known as the Nuremberg defense or lawful orders) is a plea in a court of law that a soldier not be held guilty for actions which were ordered by a superior officer. The superior orders plea is similar to the doctrine of respondeat superior in tort law where a superior is held liable for the actions of a subordinate. Some legal scholars and war crimes tribunals will correlate the plea to the doctrine of respondeat superior; whereas others will distinguish the plea from the doctrine of respondeat superior.

The superior orders plea is often regarded as the complement to command responsibility. One of the most noted uses of this plea, or "defense," was by the accused in the 1945–46 Nuremberg Trials, such that it is also called the "Nuremberg defense". The Nuremberg Trials were a series of military tribunals, held by the main victorious Allied forces of World War II, most notable for the prosecution of prominent members of the political, military, and economic leadership of the defeated Nazi Germany. It was during these trials, under the London Charter of the International Military Tribunal which set them up, that the defense of superior orders was no longer considered enough to escape punishment; but merely enough to lessen punishment.[4]

Historically, the plea of superior orders has been used both before and after the Nuremberg Trials, with a notable lack of consistency in various rulings.

Apart from the specific plea of Superior Orders, discussions about how the general concept of superior orders ought to be used, or ought not to be used, have taken place in various arguments, rulings and Statutes that have not necessarily been part of “after the fact” war crimes trials, strictly speaking. Nevertheless these discussions and related events help us understand the evolution of the specific plea of superior orders and the history of its usage.

While it would be absurd to assert that Nick Conway's alleged garden variety bureaucratic pilfering can in any way be equated with the horrendous crimes committed by Nazi Germany during the 1930s and '40s, I think you can see my point here. The felonies that Nick has been charged with involved taking taxpayer money on behalf of the COG, filtering it through Arroyo Associates, a sock puppet paper pusher company that he himself personally owned, and then pocketing the difference. To say that he was supposedly doing this because he had been issued orders by his Governing Board superiors and their legal counsel at the COG to do so is not only patently ridiculous, but also besides the point.

As Assistant District Attorney Dana Aratani put it in one of the Star News articles cited above, "The conflict of interest doesn't depend on advice of legal counsel." Claiming that he was only obeying superior orders certainly does not look like it will get Nick off the hook, and could instead reveal just how weak his legal position actually is. You have to wonder if this is all they got.

Our friend, Walnut City Councilman Tom King, was one of the key government witnesses at the Nick Conway pretrial hearings. As, I suspect, he will be at Conway's coming trial as well. Tom shows up this way in the second of the two Star News articles we cited today:

Later, White said the witnesses who testified against Conway had biases that they did not fully disclose. He also said: "They had voted for and approved the very contracts they were now complaining about."

It is believed White was referring to Walnut Councilman Tom King and Diamond Bar Councilwoman and current COG board member Carol Herrera. King painted a picture of Conway of being in the business of producing grants for personal gain.

"He is simply trying to develop a defense posture to publicly poison the jury pool," added King.

Walnut is one of two cities to withhold dues from COG; Irwindale is the other. King has said the city will withhold dues until the COG conducts a forensic audit "to endure that all public funds are accounted for."

Tom commented about the above assertions here on The Tattler yesterday, and I thought it would be a good idea to reproduce what he had to say for this post. It pretty much lays waste to some of Kenny White's preposterous and misleading claims.

Conway’s attorney stated to reporters today the witnesses who testified for the prosecution were biased and had other axes to grind. He said in the interview that the witnesses did not reveal their affiliations but kept it secret.

The attorney makes his living defending white collar criminals. I make my living putting them in jail. I like my associations. He likes his.

As a local elected official I interact with all local government officials, including Herrera. I don't have any more affiliation with her than any other elected official. Some I like and respect and others I do not agree with. The attorney is simply trying to develop a defense posture to publicly poison the jury pool. Conway supporters have taken out expensive paid insert ads in the Los Angeles Times attacking me. Most accused people cannot do that. An Ad Hominem attack is not indicative of a strong legal position by a defense attorney.

What happened with Conway is a tragedy. But he knew full well what he was doing and worked with close political allies on the SGVCOG to accomplish it. What happens to Conway is up to the courts.

Before I recommend Walnut re-associate with the SGVCOG, they need to conduct a forensic audit to ensure that all public funds are accounted for. Conway has a few key supporters in the SGVCOG who are more inclined to discredit critics instead of reestablishing credibility of the organization.. The selection of a nonpolitical Executive Director was a step in the right direction. I am optimistic things will get better.

I walked up to the President of the SGVCOG last week at a regional meeting and said “Hello” She quickly turned around and walked away. She was instrumental in kicking me and Herrera off the Executive Board for raising issues about Conflicts of Interest by Mr. Conway. 

Now there is a quote of the week. "The attorney makes his living defending white collar criminals. I make my living putting them in jail. I like my associations. He likes his."

Fire up the popcorn machine, settle in and get ready for the San Gabriel Valley's trial of the decade.

This one is going to be good.

http://sieramadretattler.blogspot.com