Monday, December 24, 2012

Dustin McDaniel's dilemma grows more complicated

Posted By on Mon, Dec 24, 2012 at 6:14 AM

WILL HE MEET THE PRESS? Attorney General Dustin McDaniel faces some hard questions when and if he does.
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  • WILL HE MEET THE PRESS? Attorney General Dustin McDaniel faces some hard questions if and when he does.

The weekend put me in touch with three people with varying degrees of insight on the personal and political controversy in which Attorney General Dustin McDaniel is enmeshed.

Bottom line: Things don't seem likely to get any better for him any time soon. The potential for a steady drip of continuing news stories and legal complications is obvious.

EYE OF THE STORM: Lawyer Andi Davis, with her lawyer, Jeff Rosenzweig.
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  • EYE OF THE STORM: Lawyer Andi Davis, with her lawyer, Jeff Rosenzweig.
I've learned:

* NEW CASES: There may be at least two other cases not disclosed previously in which the attorney general's office and Andi Davis, a Hot Springs lawyer with whom he's admitted an "inappropriate interaction," represented opposing parties. Both arose in Polk County. In one drug case, Davis represented drug defendant Vincent Fett. He successfully appealed reversal of one conviction, on simultaneous possession of guns and drugs The attorney general's office represented the state on this as it does on all criminal appeals. Davis also apparently was trial lawyer in the murder case of Raymond Leach of Mena, though not the lawyer on his appeal, when the attorney general became the state's representative. McDaniel's office has said previously that Arkansas lawyer ethics rules don't require notification of clients about personal relationships between opposing lawyers unless there might be a material effect on the case. The office said no such circumstance existed with the cases in which the AG and Davis had similar interests. For one thing, McDaniel rarely has a direct role in cases handled by his office, essentially a large law firm.

BUT ... Material impact might be a matter of differing interpretation, not to mention the importance of actions being not only proper but appearing to be proper. Did Davis discuss these or any other cases with McDaniel after their relationship began (apparently after an introduction at a Democratic Party meeting in Hot Springs in late 2010)?

* ETHICAL TANGLE: The question of professional propriety has been put in play. McDaniel's disavowal of a problem doesn't resolve it. Inevitably, somebody will complain to the Arkansas Supreme Court Committee on Professional Conduct about McDaniel. Davis might come under review on account of a complaint from a client of her own or she might even wish for a review to clear her own name. Should a citizen complain about McDaniel, a recent case in which the Committee Director Stark Ligon rebuffed a review of McDaniel by Arkansas Times senior contributor Mara Leveritt will come into play. The comittee said it was not its role to review legal ethics in official action of public officials like McDaniel. That interesting conclusion was mostly blown off by the public in Leveritt's complaint about McDaniel's alleged failure to act ethically in the West Memphis Three case. You may be sure political opponents won't be so easily dissuaded. An attorney general beyond ethical review? The resolution of that point of ethical procedure, however it turns out, will generate headlines. A ethical review of McDaniel would seem to be merited to clear the air if nothing else. Complainants will raise hell if Ligon's agency won't consider the case. Given the speed at which these things proceed, the matter could fester throughout the 2014 election cycle and beyond.

* THE MURDER CASE: The fatal shooting last February of Maxwell Anderson at Andi Davis' Hot Springs home guarantees continuing headlines, too. To date, there isn't any suggestion that McDaniel has even a tangential relationship to this case. But it concerns a woman with whom he had a relationship of some duration. Did she reach out to him when this began unfolding? The State Police are in possession of at least some of her phone records as they investigate the death. Do they include communications, whether related to this case or otherwise, with or about the attorney general?

Davis, though not implicated in the death as yet, was led from the scene in handcuffs the day of the shooting. As I've noted before, Davis had a foe among the officers who responded, a Garland County deputy whose estranged wife is represented by Davis in a domestic action. Bad luck. No charges have been filed against anyone. The Davis side will likely say her brother shot Anderson, who had drug problems, after he came to the house, began acting erratically and attacked Davis with a golf club. He had reportedly gone to the house about a transaction in which he'd been paid in advance for some electronic equipment for Davis' brother. Investigators may ultimately conclude officially the evidence supports a self-defense claim and announce no charges will be filed. Even so — fairly or not — some people will believe the outcome was influenced by Davis' connection to a powerful legal official. By the way, the attorney general is not, technically, a law enforcement officer. He doesn't prosecute or make decisions on prosecutions. McDaniel, a former cop, would be even more in the clear on this if he hadn't insisted on getting legislative approval for a personal office police force, used mostly to chauffeur him. His personal cop sweeps future party visits for security purposes as if he was a head of state.

* MEETING THE PRESS: I keep being told McDaniel plans a come-to-Jesus news conference on these matters. Can he successfully put off-limits questions about the genesis and duration of the relationship with Davis? His characterization to date opens him to questions about whether it was as brief as depicted. Will he reveal his personal phone and e-mail contacts with Davis, not merely those from his public office? I'd bet not, for a variety of reasons, particularly if they are as extensive as they've been portrayed to me.

Summing up the factors at play in the news for McDaniel's gubernatorial candidacy: An extramarital sexual relationship. A murder case in which hard drugs played at least a contributing role. Appearance, if not reality, of ethical conflict in legal representation of the state of Arkansas. The cases include one of national significance pitting Davis against McDaniel's office on whether racial issues can be considered in a state's school choice law. A colorful and controversial lawyer desperately trying to both hang onto her career and protect her children (against an ex who remains a wild card. Remember that he put this and some less well-founded innuendo in play through undocumented court filings that he knew could be safely reprinted — no matter how unfounded — as privileged court documents. Who knows what he may know from his own access to Davis' phone and e-mail accounts.) There are political opponents both within McDaniel's party (who'd like to see him driven from the Democratic primary) and Republicans (who are licking their lips at McDaniel as a general election survivor). And then, not incidentally, there's the fractured relationship with McDaniel's wife and family, which to some might be issue No. 1.

It is early to predict the outcome. But this morning I'm thinking it would be a wonder for a politician short of Bill Clinton to survive.

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