Sacha Baron Cohen’s criticism of Facebook is his funniest joke

Yes, there is hate speech on social media, but is that all there is to it?

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Sacha Baron Cohen arrives at the 71st Primetime Emmy Awards in Los Angeles, California on September 22, 2019 [Reuters/Mario Anzuoni]
Sacha Baron Cohen arrives at the 71st Primetime Emmy Awards in Los Angeles, California on September 22, 2019 [Reuters/Mario Anzuoni]

In late November, actor and comedian Sacha Baron Cohen gave a talk at the Anti-Defamation League about hate speech and anti-Semitism on social media. He called Big Tech and social media “the greatest propaganda machine in history,” adding: “Just think what Goebbels could have done with Facebook.”

Shortly after, Facebook rejected the accusation, releasing a statement saying that hate speech is banned on the platform.

Baron Cohen’s speech has received much attention and widespread support, particularly in mainstream media which echoed and disseminated his observations.

The charge of being “the greatest propaganda machine in history” is, of course, loaded and draws our attention to other propaganda machines that existed long before Facebook and which might have a claim to that dubious distinction. Among them are the American war machine and the Israeli hasbara, neither of which Baron Cohen seems to reject. 

State propaganda and monopoly of information

There is some element of truth to what Baron Cohen says. There are people on the racist, xenophobic, anti-Semitic, Islamophobic and white supremacist lunatic fringe that take advantage of social media to propagate hate.

But is that all there is to Facebook?

Has it, perhaps inadvertently, also provided a venue for those at the mercy of state and corporate propaganda to talk back at it, reasserting alternative narratives to those presented by, let’s say, the BBC and the New York Times?

I would daresay that those media organisations are, if not the greatest, then certainly major propaganda machines supporting a settler colony that the UK and US have been chiefly responsible for creating and sustaining. They have had that monopoly for decades – deciding and determining the terms of debate on Israel’s colonisation of Palestine.

Facebook and other social media platforms have, all their troubling dimensions notwithstanding, offered sites of resistance to their hegemony.

For those of us old enough to remember the mode of media coverage prior to the emergence of the internet, Baron Cohen’s observations actually sound quite ludicrous.

I remember vividly when the Iranian Revolution of 1977-1979 broke out. Then a graduate student at the University of Pennsylvania, I felt despair at being at the mercy of the New York Times, the Washington Post, or any one of the three major US networks (ABC, CBS or NBC) – or particularly BBC radio – to tell me what was happening in Iran.

I remember driving to a Radio Shack shop in the King of Prussia suburb of Philadelphia to buy a short-wave device in order to listen to Tehran Radio and find out what was happening in my homeland. This is not to say that Tehran Radio told the truth and the New York Times spread lies. It just means we all needed more than one dominant and hegemonic source of news to make up our own minds.

Books have been written on how the New York Times and other major corporate media have helped state propaganda machineries. Consider Edward S Herman and Noam Chomsky’s 1988 classic Manufacturing Consent: The Political Economy of the Mass Media or Richard Falk and Howard Friel’s 2007 book The Record of the Paper: How the New York Times Misreports US Foreign Policy. They both document how monopoly over information, whether state or corporate, has helped justify to the public enormous atrocities and kept it purposefully ignorant of the truth.

Breaking the monopoly

Perhaps the case of the Palestinian national liberation struggles of the last 70 years is the most potent example of how the internet and social media has enabled Palestinians and supporters of the Palestinian cause to counter the sustained course of Israeli propaganda in order to put the history of their dispossession and the robbery of their homeland on the global stage.

The internet started to break the powerful monopoly on how Palestine was portrayed in the 1990s. At first, it gave dissenting voices access to a wider audience.

I remember how one day, shortly after he had started his column for the Egyptian Al-Ahram Weekly in 1993, my colleague and eminent literary theorist Edward Said came to me on campus at Columbia University and declared, “Al-Ahram has liberated me!”

Forget about the New York Times, the chief organ of liberal Zionism, even the so-called progressive outlets like The Nation would not publish his critical assessments of Israeli thievery pre- and post-Oslo Accords.

What was the print circulation of Al-Ahram Weekly? Rather small. But its website gave people around the globe access to Said’s emancipatory writings.

Baron Cohen would most probably not like that. Said’s voice was not racist or anti-Semitic. It was and remains liberating and empowering for the dispossessed around the world.

Then social media not only opened up spaces for wider discussion on the Palestinian cause, connecting the diaspora and foreign supporters to Palestinians in Palestine, but also enabled grassroots organising and public documentation of Israeli violations and crimes.

Take the Boycott, Divestment, Sanctions (BDS) campaign. Founded in 2005, a year after Facebook started and a year before Twitter was launched, it has managed to grow exponentially thanks to social media, which has helped spread its message and boost the effectiveness of its campaigns. It can rally support for boycott action across the world through a network of organisations and volunteers maintained on social media platforms.

The campaign has managed to make enough noise on social media and otherwise to get major artists to cancel events in Israel, including Snoop Dogg, Shakira, Laurin Hill and many others. In 2017, in response to an online BDS letter, New Zealand artist Lorde tweeted: “Noted! Been speaking w many people about this and considering all options. Thank u for educating me I am learning all the time too” before cancelling her concert in Tel Aviv.

The success of the BDS campaign has much to do with the increasing access to information about Israeli crimes on the internet, and especially on social media. Over the past decade, Palestinians and supporters of their cause have increasingly been able not only to document daily Israeli oppression but to post it online for the world to see.

Whether it is shocking images of children killed by Israeli fire in Gaza, videos of Israeli snipers shooting an unarmed Palestinian and celebrating it, or footage of Israeli soldiers carrying out an extrajudicial killing – Palestinians can broadcast to the world Israeli violence in real-time on social media.

If it were up to the New York Times and BBC, it is unlikely any of these crimes would be properly reported. It is only because Palestinian voices have been empowered and amplified online that we hear in detail about what is happening in Palestinian lands.

Who is to throw the first stone?

I have no love lost for Big Tech. To me, they are big corporations and as such, are as immoral and hazardous as every other big corporation. And there is no doubt of the enormity of the horror of white supremacy and its proponents’ use of these platforms to promote hatred.

But social media and the interconnectedness it has encouraged also mean we are not at the mercy of any state or corporate media to decide what is “fit to print”.

The question is not whether Facebook is or is not vulnerable to abuse by racist and xenophobic groups. Of course it is. But who is the person levelling these charges and where is the podium from which he launches this attack.

Baron Cohen makes money out of perpetuating the worst stereotypes about Arabs and Muslims in his films and shows. And the ADL, where he gave the speech, is itself known for its racist activism

The cause of Zionism that Baron Cohen and the ADL fully embrace has totally discredited the charge of anti-Semitism and weaponised it against those who dare criticise the horrors of the settler colony against Palestinians.

But none of that in and of itself discredits what he says. Even a broken clock is accurate twice a day.

There is rampant racism, anti-Semitism, Islamophobia, homophobia, etc and social media can be a cesspool for entertaining such nefarious ideas. But we need to be even and identical in our criticism of all of these terrorising forms of racism in one breath. We cannot denounce just one while trading in the others.

The internet is a blessing and it is a curse. But it has made the world a more level playing ground to oppose and end abuse of power.

The views expressed in this article are the author’s own and do not necessarily reflect Al Jazeera’s editorial stance. 

Petition: Tell Congress to Ban surprise medical bills.

It’s bad enough that Americans have to pause in the midst of medical emergencies to ask if insurance companies will cover the cost of treatment. But it’s even worse that visits to “in-network” providers can still result in hundreds or thousands of dollars in surprise medical bills.1

Today, one in five emergency room visits — and 70 percent of critical air ambulance transports — result in surprise medical bills. When healthcare providers and insurance companies can’t agree on how much treatment costs, they turn around and bill patients for the difference.2

Insurance companies’ greed has broken our healthcare system in more ways than we can count. But right now, we have a chance to take real, bipartisan action to end surprise medical billing, and we can’t let it go to waste.

One surprise medical bill can tip someone into bankruptcy, and they are growing more and more common. Maybe the insurance company pads its profits by paying the hospital or ambulance less than the treatment costs. Or providers demand higher and higher fees that the insurance company won’t pay. Or the insurer reimburses the hospital, but not the doctor who provided treatment. Regardless, the story ends the same: patients end up stuck paying for the balance, with no warning and through no fault of their own.3

The good news is that there is new momentum behind legislation that would ban this “balance billing,” based on three commonsense principles:4

  • Ban surprise balance billing and fully protect patients with no exceptions, especially in emergency situations where people can’t make sure they will see an in-network provider
  • Contain costs by establishing a reasonable payment level between providers and insurers based on actual prices, not corporate greed
  • Ensure comprehensive protection nationwide so federal law reinforces the strongest state laws and helps people in states with no protections


A bipartisan consensus in Congress is emerging against surprise medical bills but insurers and emergency medical providers are fighting back to preserve their profits.5 It’s up to us to fight for the strongest possible legislation with no loopholes or handouts.

Sign CREDO’s petition to Congress: Ban surprise medical bills.

SIGN THE PETITION
Thank you for speaking out,

Heidi Hess, Co-Director
CREDO Action from Working Assets

Apple changes Crimea map to meet Russian demands

Apple iPhoneImage copyrightGETTY IMAGES

Apple has complied with Russian demands to show the annexed Crimean peninsula as part of Russian territory on its apps.

Russian forces annexed Crimea from Ukraine in March 2014, drawing international condemnation.

The region, which has a Russian-speaking majority, is now shown as Russian territory on Apple Maps and its Weather app, when viewed from Russia.

But the apps do not show it as part of any country when viewed elsewhere.

Apple Weather app lists Crimea as part of RussiaImage copyrightAPPLE WEATHER
Image captionThe Apple Weather app now lists Crimea as part of Russia
Apple Map showing CrimeaImage copyrightAPPLE MAPS
Image captionApple Maps does not show a border between Crimea and Russia

The State Duma, the Russian parliament’s lower house, said in a statement: “Crimea and Sevastopol now appear on Apple devices as Russian territory.”

Russia treats the naval port city of Sevastopol as a separate region.

The BBC tested several iPhones in Moscow and it appears the change affects devices set up to use the Russian edition of Apple’s App Store.

Apple had been in talks with Russia for several months over what the State Duma described as “inaccuracy” in the way Crimea was labelled.

The tech giant originally suggested it could show Crimea as undefined territory – part of neither Russia nor Ukraine.

But Vasily Piskaryov, chairman of the Duma security and anti-corruption committee, said Apple had complied with the Russian constitution.

He said representatives of the company were reminded that labelling Crimea as part of Ukrainian territory was a criminal offence under Russian law, according to Interfax news agency.

“There is no going back,” Mr Piskaryov said. “Today, with Apple, the situation is closed – we have received everything we wanted.”

He said Russia was always open to “dialogue and constructive co-operation with foreign companies”.

Apple has not yet commented on the decision.

Google, which also produces a popular Maps app, does not show Crimea as belonging to either Russia or Ukraine on its maps.

However, it uses the Russian spelling of Crimean place names, rather than the Ukrainian spelling, on its maps in Russia.

Most of the international community, including the EU and the US, does not recognise the annexation of Crimea to Russia.

The loss of Crimea is a deep wound for Ukrainians. Shortly after the peninsula was annexed in early 2014, a separate conflict broke out in the eastern Donetsk and Luhansk regions when separatists moved against the Ukrainian state.

Ukraine and the West accuse Russia of sending its troops to the region and arming the separatists.

Moscow denies this but says that Russian volunteers are helping the rebels. More than 13,000 people have been killed in the conflict.

The BBC does not show Crimea as part of Russia on its maps, but shows a dotted line to mark disputed territory.

Sasha Baron Cohen: Facebook would have let Hitler buy anti-Semitic ads

Sacha Baron Cohen in Los Angeles, California, on September 22, 2019

British comedian Sacha Baron Cohen has said if Facebook had existed in the 1930s it would have allowed Hitler a platform for his anti-Semitic beliefs.

The Ali G star singled out the social media company in a speech in New York.

He also criticised Google, Twitter and YouTube for pushing “absurdities to billions of people”.

Social media giants and internet companies are under growing pressure to curb the spread of misinformation around political campaigns.

Twitter announced in late October that it would ban all political advertising globally from 22 November.

Earlier this week Google said it would not allow political advertisers to target voters using “microtargeting” based on browsing data or other factors.

Analysts say Facebook has come under increasing pressure to follow suit.

Addressing the Anti-Defamation League’s Never is Now summit, Baron Cohen took aim at Facebook boss Mark Zuckerberg who in October defended his company’s position not to ban political adverts that contain falsehoods.

“If you pay them, Facebook will run any ‘political’ ad you want, even if it’s a lie. And they’ll even help you micro-target those lies to their users for maximum effect,” he said.

“Under this twisted logic, if Facebook were around in the 1930s, it would have allowed Hitler to post 30-second ads on his ‘solution’ to the ‘Jewish problem’.”

Baron Cohen said it was time “for a fundamental rethink of social media and how it spreads hate, conspiracies and lies”. He also questioned Mr Zuckerberg’s characterisation of Facebook as a bastion of “free expression”.

“I think we could all agree that we should not be giving bigots and paedophiles a free platform to amplify their views and target their victims,” he added.

Facebook has not commented on the remarks.

Earlier this month, an international group of lawmakers called for targeted political adverts on social media to be suspended until they are properly regulated.

The International Committee on Disinformation and Fake News was told that the business model adopted by social networks made “manipulation profitable”.

A BBC investigation into political ads for next month’s UK election suggested they were being targeted towards key constituencies and certain age groups.

Prince Andrew: Standard Chartered bank cuts ties with duke’s scheme

Prince Andrew

Standard Chartered has become the second corporate partner to sever ties with the Duke of York’s business mentoring initiative, Pitch@Palace.

The bank joined accountancy firm KPMG in pulling support for the scheme.

It said it was not renewing its sponsorship for “commercial reasons”.

Several businesses and universities are reviewing their association with Prince Andrew following a BBC interview about his links to convicted sex offender Jeffrey Epstein.

Sources have told the BBC the decisions by Standard Chartered and KPMG were made before the interview.

‘Very serious questions’

Meanwhile, Boris Johnson and Jeremy Corbyn were asked about whether Prince Andrew was “fit for purpose” during their head-to-head debate on ITV on Tuesday evening.

The Labour leader said there were “very, very serious questions that must be answered and nobody should be above the law”.

The prime minister said: “I think all our sympathies should be, obviously, with the victims of Jeffrey Epstein and the law must certainly take its course.”

Boris Johnson says monarchy “beyond reproach”

In his Newsnight interview, broadcast on Saturday, the Queen’s third child said he still did not regret his friendship with US financier Epstein – who took his own life in August while awaiting trial on sex-trafficking charges in the US.

The interview has provoked a backlash, with businesses, charities and other institutions announcing that they were reviewing their association with the prince.

In addition to Standard Chartered and KPMG ending their support for Pitch@Palace:

  • Pharmaceuticals company AstraZeneca and Hult International Business School are reviewing their partnerships with the business scheme
  • Outward Bound, the charity the Duke of Edinburgh was patron of for 65 years, has called a board meeting to discuss the prince’s patronage
  • London Metropolitan University said it will consider the prince’s role as its patron, saying it “opposes all forms of discrimination, abuse and human trafficking”
  • University of Huddersfield students are calling for the prince to be sacked as their chancellor

On Monday, the Huddersfield students’ union panel passed a motion to lobby the prince to resign as their chancellor.

The university has since said that it listens to its students’ views and will “now be consulting with them over the coming weeks”.

Prince Andrew on Epstein: ‘There was no indication, absolutely no indication’

The duke has stood by his decision to speak out, after critics labelled the interview a “car crash”.

But speaking on the BBC’s Victoria Derbyshire programme on Tuesday, Huddersfield student Tristan Smith criticised the prince over his friendship with Epstein.

He accused Prince Andrew of “trying to dismiss” the row and failing to recognise Epstein’s victims.

Meanwhile, a woman who has accused Epstein of sexually abusing her as a 15-year-old has urged Prince Andrew to share information about his former friend.

The accuser, identified as “Jane Doe 15”, did not accuse Prince Andrew of any wrongdoing but called on him and others to come forward and give a statement under oath.

Image caption“Jane Doe 15”, left, gave a press conference with lawyer Gloria Allred

Elsewhere, former home secretary Jacqui Smith alleged that Prince Andrew made racist comments to her during a state dinner.

“I have to say the conversation left us slack-jawed with the things that he felt it was appropriate to say,” she told the LBC election podcast.

And Rohan Silva, who was an adviser to former prime minister David Cameron, also accused the prince of using a racial slur in his presence.

A Buckingham Palace spokesman strenuously denied the claims, adding that Prince Andrew “does not tolerate racism in any form”.

There is no wholesale repudiation of Prince Andrew’s public role.

But whether as a result of the interview he gave, or because of the continuing swirl of allegations, there is a falling away of support for the prince, both corporate and political.

The former Labour lord chancellor and justice secretary, Lord Falconer, told BBC Radio 4’s PM programme that he thought the time had come for Prince Andrew to step away from public duties.

Those close to Prince Andrew say that a withdrawal from public life is not under consideration.

But if support continues to seep from him, it will undermine his public position.

‘Human tragedy’

There was also further reaction to the prince’s BBC appearance.

Actress Rose McGowan – one of the most prominent figures of the #MeToo movement – told the Victoria Derbyshire programme she thought it was not a truthful interview.

“It’s also certainly not the mark of someone who is an empathetic character who cares about victims in any way,” she added.

The actress also said she wished more questions had been asked about Epstein’s alleged victims.

“We can’t forget there is human tragedy behind this… This has serious repercussions, serious ramifications and serious pain that is involved in this story.”

However, Alastair Campbell – Tony Blair’s ex-communications chief – said that although he thought the interview was a “mistake”, it was not “as bad as it is now being defined”.

Mr Campbell, who was another high-profile Briton to be named in Epstein’s 97-page “black book” of contacts, also told the Today programme that he met the financier on a visit to the US for a funeral and found him to be “a bit creepy”.

Prince Andrew’s BBC interview followed allegations by Virginia Giuffre, known at the time as Virginia Roberts, who claims the prince had sex with her on three occasions – the first when she was aged 17.

Prince Andrew “categorically” denied having had sexual contact with her.

In an extraordinary interview, which you can watch in full on BBC iPlayer in the UK or YouTube elsewhere in the world, the duke said:

  • He had investigations carried out to establish whether a photograph of him with Ms Giuffre was faked, but they were inconclusive
  • He would testify under oath if “push came to shove” and his lawyers advised him to
  • He was unaware of an arrest warrant against Epstein when he invited him to Princess Beatrice’s 18th birthday party at Windsor Castle
  • He does not regret his friendship with Epstein because of “the opportunities I was given to learn” from him about trade and business
  • Speaking out about his relationship with the financier had become almost “a mental health issue” for him

Trump ally Roger Stone guilty of lying to Congress

A US jury also convicts the former Trump adviser of obstruction and witness tampering.

Roger Stone, longtime political ally of US President Donald Trump, arrives for his arraignment at US District Court in Washington, DC [File: Leah Millis/Reuters]
Roger Stone, longtime political ally of US President Donald Trump, arrives for his arraignment at US District Court in Washington, DC

United States jury convicted President Donald Trump‘s former adviser Roger Stone on Friday, finding the longtime Republican operative and self-proclaimed “dirty trickster” guilty on seven criminal counts of lying to Congress, obstruction and witness tampering.

The verdict, in a trial arising from investigations of Russian interference in the 2016 US election, is not only a blow to Stone but renews scrutiny on then-candidate Trump’s activities at a time when he faces an impeachment inquiry that could derail his presidency.

The 67-year-old veteran Republican political operative – a self-described “agent provocateur” – was charged earlier this year with obstructing justice, witness tampering and lying to the US House of Representatives Intelligence Committee during its investigation into Russian interference in the 2016 presidential election.

Trump almost immediately reacted to the news, tweeting: “So they now convict Roger Stone of lying and want to jail him for many years to come. Well, what about Crooked Hillary, Comey, Strzok, Page, McCabe, Brennan, Clapper, Shifty Schiff, Ohr & Nellie, Steele & all of the others, including even Mueller himself?”

He added: “A double standard like never seen before in the history of our Country?”

Colourful trial

Stone’s colourful trial in federal court in Washington, DC, was as much about the rough-and-tumble world of politics, as it was about hair-splitting legal arguments, such as whether Stone truly lied about WikiLeaks since that website was never explicitly mentioned in the intelligence committee’s publicly-stated parameters of its investigation.

The trial featured testimony by political heavyweights including former Trump campaign CEO Steve Bannon and former Trump campaign deputy Rick Gates, each of whom said they believed Stone had inside information about when WikiLeaks might release more damaging emails about then-Republican candidate Trump’s Democratic opponent Hillary Clinton.

Roger Stone
Roger Stone, former adviser to President Donald Trump, and his wife Nydia Stone arrive at the court [Mark Wilson/Getty Images/AFP]

Prosecutors accused Stone of telling politicians five different lies related to WikiLeaks and its founder Julian Assange, which in 2016 dumped a series of damaging emails about Clinton that US intelligence officials and then-Special Counsel Robert Mueller later concluded had been stolen by Russian hackers.

Some of those lies relate to the existence of certain texts or emails, while others pertain to Stone’s conversations with Trump campaign officials and a supposed “intermediary” with WikiLeaks in early August 2016 whom Stone identified to politicians as being comedian Randy Credico.

Prosecutors said Stone did not actually start talking to Credico about WikiLeaks until later that month, and the actual person to whom he was referring in testimony as an “intermediary” was conservative author Jerome Corsi whom Stone dispatched in an email to “Get to Assange!” and get the emails.

Corsi was not called as a witness in the trial.

Trump ally Roger Stone charged with lying in Russia investigation

Stone, a close Trump ally who famously has the face of former president Richard Nixon tattooed on his back, was also accused of tampering with a witness, Credico, when Credico was summoned to testify before Congress and speak with the FBI.

Stone and Credico, who took the stand in the case, have since said that Credico did not act as a WikiLeaks backchannel.

In emails and texts, the jury saw messages that Stone had sent Credico that included comments like “Prepare to die”, “You’re a rat. A stoolie”, and “Stonewall it. Plead the Fifth. Anything to save the plan”, in a reference to a famous Nixon Watergate quote.

He also repeatedly urged Credico to “do a Frank Pentangeli” – a reference to a “Godfather II” character who recants his congressional testimony against a mobster amid intimidation.

A lawyer for Stone dismissed the Pentangeli reference, saying Credico had done impressions of the character in the past, and said the “odious language” they used was just part of how they interacted.

A federal judge scheduled Stone’s sentenced for February 2020.

Maine: Some lawyers for the poor may be (insanely) over-billing, but oversight is lax

Potential overbilling and a lack of visibility into the hours worked by lawyers defending Maine’s poor have sparked multiple state investigations.

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BY SAMANTHA HOGAN, PINE TREE WATCH

Maine spent more than $21 million to provide free lawyers to its poor in 2018, but the state’s oversight of the spending was so lax that they paid some attorneys as if they worked more than 80 hours a week for the entire year.

A three-month investigation by Pine Tree Watch into the Maine Commission on Indigent Legal Services found that attorneys’ invoices are frequently incorrect, resulting in them often being overpaid for representing Maine’s poor. For nine years, the commission’s director has uncovered these inaccuracies on a daily basis, but he did not change how attorney payments are approved even as the agency’s spending nearly doubled.

Lawmakers began to question the commission’s financial oversight this year after a report by the nonpartisan Sixth Amendment Center revealed that 33 attorneys could have overcharged the state $2.2 million between 2014 and 2018 by billing hours that greatly exceeded full-time work.

The highest-paid attorney was Amy Fairfield, who personally billed the state $275,612 in fiscal year 2018. At the state’s flat $60-an-hour rate for court-appointed attorneys, that would mean she worked approximately 88 hours a week, excluding a small amount of expenses.

The commission’s executive director, John Pelletier, said what Fairfield was paid in fiscal year 2018 was not the result of overbilling but reflects the cumulative work of multiple attorneys at her law firm who worked on her cases and billed under her name.

The commission instituted an automated alert system in June to detect when lawyers invoiced the state for an excessive number of hours. In just four months, the system triggered more than 800 alerts when attorneys appeared to have overbilled, including several days in which a lawyer claimed to have worked more than 24 hours in a single day.

Maine is the only state that does not have a public defender office staffed by its own attorneys. Defendants who cannot afford to hire a lawyer instead rely on the Maine Commission on Indigent Legal Services, which oversees private attorneys who are assigned to represent the poor in criminal, juvenile and child protection cases.

The Sixth Amendment Center report set off a chain of inquiries by lawmakers, with Sen. Lisa Keim, R-Oxford, at the forefront of the push to investigate.

Since 2016, Keim has filled a blue, three-ring binder with a stack of research on the “opaque” billing practices of the commission. In February, she asked the Government Oversight committee to open an investigation into whether attorneys were falsifying their hours, and pointed to Fairfield’s earnings in 2018 as a concern.

The Government Oversight Committee unanimously agreed to have the state’s independent Office of Program Evaluation and Government Accountability, known as OPEGA, begin a review in April. They are scheduled to meet again on Dec. 10 to consider whether to launch a deeper investigation.

BANKING ON MANY HOURS

For nearly a decade, Pelletier and Ellie Maciag, the commission’s deputy director, have approved payments to defense attorneys based on the average time it took other lawyers to complete case tasks and what they called a “feel” for the expected time a case should take.

However, in July 2010, the commission’s first operational report pointed out that reviewing payments by case alone left the agency blind to the total hours attorneys billed each day. The report suggested a timesheet be added so attorneys could track their daily hours worked across multiple cases. The commission wanted the change made by that fall, but nine years later, it has not been implemented.

The blind spot in the commission’s understanding of attorney billing became apparent this summer when a new alert system to detect when lawyers billed 12 or more hours went live and flagged more than 800 days that attorneys could have overbilled.

Twenty-seven percent of the alerts trace back to Fairfield & Associates, which Amy Fairfield opened in 2004.

In fiscal year 2018, Fairfield & Associates, which has multiple offices in Maine, billed $1.46 million as the state’s largest provider of court-appointed counsel. One of the highest-billing associates at the law firm, Kevin Moynihan, racked up more alerts than any other attorney in the state during the first four months of the new system coming online.

Invoices that Moynihan submitted in June triggered alerts on 93 days when his daily workload exceeded the system’s 12-hour limit. This included his highest billed day on Aug. 13, 2018, when he invoiced the state more than 21 hours on 40 cases.

When reached in October, Moynihan told Pine Tree Watch that he worked the hours billed on the cases, but that some hours were invoiced on incorrect days by staff at Fairfield & Associates.

Moynihan left Fairfield & Associates for a job at the Cumberland County District Attorney’s office in late June as the commission’s alert system was being rolled out. He was able to check only a few of the alerts before he was locked out of the firm’s email and internal billing system where his hours were stored.

The alert system was implemented at the recommendation of Pelletier and Maciag, and was the first major change in nine years to how attorney hours were monitored by the agency. A proposal to add a timesheet is also pending with the independent board of commissioners that advises the state agency. Pelletier said a timesheet would be beneficial and could limit mistakes.

A Pine Tree Watch review of attorneys’ explanations to the high-hour alerts revealed multiple instances in which lawyers found they had billed the state twice for the same work, forgotten decimal places or recorded tasks on the wrong day, which required their future bills to be adjusted for the overpayment.

When asked to explain the high volume of alerts, Pelletier said they were not indicative of intentional overbilling.

“We’re finding errors in the billing, and some reflect work that’s done and some is work that was not done — but it’s accidental,” Pelletier said.

Attorneys had not responded to 46 percent of the alerts by the first week of October, which meant the commission had no explanation for the high number of hours billed. Pelletier says he has monitored attorney responses and requested explanations when he felt the attorney did not provide enough information.

“We’re finding some people who worked very long days,” Pelletier said. “When they write and explain what the 16 hours was composed of, it’s credible to me.”

But Pelletier has dismissed multiple overbilling concerns raised by Lynne Nash, the commission’s accountant technician, in the nine years they have worked together. Nash said she brought law firms, attorneys and experts whom she suspected of overcharging the commission to Pelletier’s attention.

Pelletier said he scrutinizes some of the invoices Nash flags, but that there are times when he finds the charges to be reasonable when Nash does not. That includes the findings of the Sixth Amendment Center report.

The Sixth Amendment Center was hired in March 2018 at the recommendation of a legislative group led by Keim to evaluate the commission and make recommendations on how it could better guarantee counsel to all people accused of a crime and at risk of serving jail time. The report uncovered multiple systemic problems with Maine’s ability to provide defense and the potential over-billing problem.

In July 2018, after releasing new data on attorneys’ annual billings to the Sixth Amendment Center, Pelletier immediately opened an investigation into the billing practices of all attorneys who billed $150,000 or more a year from the commission. He met behind closed doors with three commissioners about his findings, records show, but his only public conclusion was that there was no evidence of fraud or a need for disciplinary action.

“I’ve determined that there won’t be any sanction or discipline among the lawyers that I looked at, because I didn’t find conduct that was worthy of that,” Pelletier told Pine Tree Watch.

According to Nash, the decision not to sanction any of the attorneys was an accountability failure by the commission.

“I’ve lost a lot of respect for John Pelletier,” Nash said. “I would like to see someone put in place that is held accountable for the expenditures going through that agency, because right now it’s just not happening.”

MAINE’S HIGHEST-BILLING FIRM

The only person making more money at Fairfield & Associates by representing Maine’s poor defendants when Moynihan left was its founder and CEO, Amy Fairfield.

Pelletier told lawmakers that the $275,612 Fairfield billed in fiscal year 2018 was proper because it reflected the work of multiple lawyers at Fairfield & Associates and not Fairfield alone.

However, Pelletier did not mention in his letter to lawmakers that four attorneys at Fairfield & Associates, who shared at least some of Amy Fairfield’s cases, were also among the highest billers in the state that year and were pegged for potentially overbilling in the Sixth Amendment Center report. Fairfield & Associates was the only law firm to have multiple attorneys flagged for potentially overbilling the state every fiscal year between 2014 and 2018.

Time – billed in increments of one-tenth of an hour – constitutes the majority of an attorney’s invoice to the commission. Certain costs for collect calls, travel and copying of more than 100 pages can also be reimbursed, but they make up substantially less of an attorney’s billings from the commission.

In addition to Fairfield and Moynihan, Fairfield & Associates attorneys Sarah Branch ($132,000), Cory McKenna ($137,000) and Rick Winling ($143,000) each billed the state above what would be expected had they worked 40 hours a week all 52 weeks in fiscal year 2018.

Fairfield declined multiple requests for comment on her law firm’s billing practices.

McKenna left Fairfield & Associates on Sept. 12 and joined McKenna Deschuytner, PLLC, in Portland. McKenna said he earned about $67,000 last year, which is substantially less than the $137,363 that commission records show he billed the state for defending Maine’s poor.

“Even if I earned $137,000, that would probably be what it would cost to support a law practice dedicated to criminal defense, when you factor in all the expenses from office space, equipment, services, staff, health care, retirement, etc.,” McKenna wrote in an email on Nov. 12.

“It is my understanding that Maine is unique in the nation in that it does not have any public defender system. It provides extremely high quality defense to the poor solely through private attorneys who agree to work on matters for a third to a fourth of their normal rates,” he added.

To understand how the lawyers at Fairfield & Associates could have profited from the defense of Maine’s poor, Pine Tree Watch analyzed invoices and case files of former clients of Fairfield & Associates, three years of commission payments, and five years of financial data that underpinned the Sixth Amendment Center report.

However, there is no public information currently available that describes in detail the number of hours each of the attorneys at Fairfield & Associates actually worked during the 2018 fiscal year.

Pelletier denied a public records request by Pine Tree Watch for a report of attorneys’ daily hours, saying it was a confidential piece of his 2018 investigation into attorney billing practices.

The annual earnings of each attorney can only be used as an approximation of how much time they worked during the fiscal year, because attorneys at Fairfield & Associates completed work on cases assigned to other attorneys at the law firm and didn’t always bill under their own names.

In some instances, the court-assigned attorney at Fairfield & Associates would do little to no work at all on a case that carried their name, Pelletier said.

“We knew on a regular basis that there were cases where the name of the assigned counsel was not the person doing most of the work on the case,” Pelletier said.

The most notable example came while Amy Fairfield worked on a post-conviction review for Anthony Sanborn Jr., who was sentenced in 1993 to 70 years in Maine State Prison for the murder of his girlfriend Jessica Briggs when they were both 16.

According to Pelletier, nearly every case that Fairfield was assigned by the courts — while she was working on the Sanborn case — was completed by other attorneys at her office.

Pine Tree Watch obtained through a public records request the invoice that Fairfield & Associates submitted for the Sanborn case, which showed that Amy Fairfield spent more than 2,113 hours between May 2016 and April 2017 working on the case. It was the first post-conviction review that Fairfield had ever completed.

“The material was dense and a lot of it did not make sense. I quickly learned that it was not supposed to (make sense) because it was a bull (expletive) prosecution that yielded a verdict that no one in their right mind could have confidence in,” Fairfield wrote to Pelletier in her explanation of the case’s costs.

Fairfield spent 423 hours reviewing discovery and another 208 hours reviewing the transcript of Sanborn’s original trial, which was more than 1,800 pages long.

A deal with prosecutors in November 2017 freed Sanborn on time-served while maintaining his murder conviction, the Portland Press Herald reported.

The maximum fee a court-appointed attorney can charge for a post-conviction review is $1,200, according to the commission’s rules. In June 2018, Maine taxpayers paid Fairfield $130,432 for Sanborn’s case. It is the most expensive single invoice and post-conviction review ever paid out by the commission.

“Working with Tony Sanborn enriched my life in many ways,” Fairfield wrote. “Working on his case illuminated a lot of ugly truths. The hours contained herein are probably far less than I actually worked. Many nights I would get a couple of hours of sleep and then get right up and start reading and analyzing right where I left off. It was an insatiable desire to achieve justice for a wonderful human being that had been tossed away as a street kid who nobody really cared about anyway.

“Words cannot describe the time and effort that went into this case. Please know that I will happily accept whatever MCILS deems appropriate for compensation. I know the bill is sizable; we did, however, take on an empire.”

Fairfield’s work on the Sanborn case, however, accounts for less than half of the $275,612 she billed in fiscal year 2018 and leaves an estimated 46 hours a week unaccounted for in the remaining $145,180 billed under her name that year.

Co-chairs of the Government Oversight Committee Sen. Justin Chenette, D-York, and Rep. Anne-Marie Mastraccio, D-Sanford, declined to comment on the ongoing investigation into the commission and its payments to attorneys beyond saying that the vote to initiate a review in April, itself, was a comment on the situation, Mastraccio said.

The scope of the OPEGA investigation has not yet been defined. But Keim said determining the culpability of attorneys and staff who allegedly overbilled will eventually be necessary.

“If you lead an organization you always have to be willing to say the buck stops here. If you’re willing to say I’m the executive director of this organization, you have to be willing to say whatever goes wrong in that organization is on my shoulders. And I know that the people of Maine pay (Pelletier) to take it on his shoulders,” Keim said.

ACCOUNTANT TECHNICIAN FLAGS BILLS

Each morning, an email arrives in Lynne Nash’s inbox with the total amount of money her bosses approved the day before. It’s been her job as the commission’s accountant technician since June 2010 to make sure the information on how much attorneys are paid flows into the state’s accounting system.

Any time the daily payment exceeds $60,000, Nash said she begins to question the accuracy of what has been approved and sometimes opens a detailed list of the invoices. That’s how she became wary of what Fairfield & Associates was billing.

“There’s a high-billing firm that needs a full-blown audit, and I’ve requested this of management numerous times for many years now,” said Nash, referring to Fairfield & Associates.

However, her requests for an audit never went anywhere, even after she brought her concerns to Chair Steven Carey of the agency’s independent board of commissioners. Carey did not respond to multiple calls requesting comment from Pine Tree Watch.

On Oct. 30, 2018, Nash went above Pelletier and emailed the state commissioner of finance, the controller and later the state auditor requesting they look into how attorneys were billing the commission.

“Any concerns regarding improper billing practices for Indigent Legal Services, or in any other area, would have been taken seriously, reviewed with the appropriate Department professionals, and addressed accordingly,” former Commissioner of Finance Alec Porteous said in an email in October.

As it turned out, potential vulnerabilities in the commission’s invoicing system, Defender Data, were already being reviewed by the Office of the State Controller when Nash’s email arrived, said State Controller Doug Cotnoir, who has overseen the financial management of the state since 2012.

His office released a report on March 14 that found the commission lacked written control procedures and had multiple other system vulnerabilities that the controller’s office identified as risks. The details of the report were heavily redacted for security purposes before it was publicly released.

In an unredacted section of the report, the controller’s office concluded that the commission was properly processing payments. An audit team reviewed a random sample of 40 invoices and found the commission was paying the correct vendor in amounts that matched the hours billed.

The report did not look into the accuracy of the individual charges on the invoices. It is Pelletier’s responsibility — not the controller’s — to confirm that the work paid for was rendered, Cotnoir said.

“We don’t do performance reviews on our side, and that is where we cross into where OPEGA comes into the picture,” Cotnoir said. “We try not to step on each other’s toes. I don’t want to compromise any work that they’re going to be doing and they try not to compromise any work that we may have underway.”

Whether attorneys are billing for work they actually performed is a question of performance, which would be appropriate for OPEGA to look into, he said.

The controller’s office provided its complete findings to OPEGA, and handed off control of any further review to the independent agency, Cotnoir said.

Members of OPEGA’s staff visited the commission and met with Pelletier, Maciag and Nash in early November, Pelletier said. OPEGA has also interviewed several of the commission’s employees and Pelletier twice, he said.

The volume of invoices Pelletier and Maciag can review in a day varies widely depending if the Legislature is in session — when Pelletier is frequently away from the office at the Capitol — and how close it is to the end of the financial quarter, when there is a push to make payments. Both overlap each March.

March 27, 2017, sticks out in particular. Records show 606 attorney invoices were reviewed and approved for payment that Monday, sometime between Friday and Sunday at the end of a busy legislative week, which included multiple committee meetings that Pelletier was known to attend.

Maciag estimated that she and Pelletier spend on average between one and two minutes with an invoice before it’s approved.

But spending just two minutes with each of the 606 invoices would have taken more than 20 hours.

Pelletier said the 606 invoices — worth $368,098 — were approved over a three-day period. Pelletier and Maciag both reviewed vouchers on Friday, and Pelletier worked Saturday and Sunday to review and approve the rest.

This would have been a break from the usual practice as Pelletier acknowledged he rarely worked weekends. Maciag also was about to take time off for maternity leave.

“You have to wonder how accurate the review process was to accumulate that amount of money in one day. Even with two people,” Nash said.

In all, Pelletier and Maciag reviewed and approved 3,266 attorney invoices, worth more than $1.9 million, in March 2017.

Multiple lawmakers, defense attorneys and advocates interviewed by Pine Tree Watch also raised concern with Pelletier dividing his work day between completing tasks for the commission and a volunteer role as chair of the state’s Criminal Law Advisory Commission, or CLAC.

Since 1997, Pelletier has served as chairman of CLAC, which makes annual recommendations to state lawmakers on possible changes to Maine’s criminal code. Pelletier regularly attends legislative meetings and speaks on behalf of CLAC.

In January 2010, Pelletier was hired as executive director of the Maine Commission on Indigent Legal Services, which has not taken positions on policy matters before the state Legislature in the past.

CLAC meets approximately every other week while the Legislature is in session, Pelletier said. When he is at the state Capitol during the session, it is generally on behalf of CLAC, he said.

Pelletier would tell the office staff, “Thursday was a CLAC day,” Nash recalled, “So we knew Thursday, Friday were pretty much dead in the water.

“Any time there is anything in the Legislature’s schedule to do with CLAC, any type of bill, he’s up over the hill … there speaking on the behalf of CLAC. Sometimes it can be daily. It can be anywhere from an hour to an all day,” Nash said.

Pelletier’s job with the commission was salaried at $121,800, including benefits, in fiscal year 2018. Pelletier said he did not take vacation or sick time to speak on behalf of CLAC.
“My work at the commission gets done,” Pelletier said.

CATCHING BAD BILLING

On at least two known occasions, Pelletier and Maciag’s review process has failed to immediately catch overbilling.

The most recent example was uncovered during Pelletier’s investigation of attorney billing practices in the summer of 2018. A lawyer, whose identity is confidential by law, was caught double-billing the commission for his and a staff member’s time.

Pelletier said he would not have been able to identify the overbilling through his regular review process, and it required looking at the attorney’s annual earnings to uncover the pattern of overbilling.

The lawyer is expected to make a “substantial” reimbursement to the commission for the incorrect invoices, Pelletier said. The amount of the reimbursement has not been finalized and has not yet occurred.

The other instance of overbilling spanned the first four years of the commission’s operation.

Aaron Fethke, an attorney with a practice in Searsport, aggregated the hours he worked on multiple days and billed them as one, which resulted in more than 24 hours being billed on a single day, according to disciplinary documents with the Board of Overseers of the Bar.

Because the automated alert system was not in place at the time, Pelletier was not immediately aware that this was happening. Instead, it was the unusually high number of hours that Fethke was billing to review discovery and other tasks that tipped off Pelletier that Fethke’s invoices may have been inflated.

Fethke billed $194,488 representing Maine’s poor in fiscal year 2014, which was more than any other attorney. The following fiscal year, he billed $160,086 and was the second-highest-paid attorney behind only Amy Fairfield.

On July 10, 2015, Pelletier filed a complaint with the Board of Overseers of the Bar on the grounds that Fethke was misrepresenting the time he spent on cases, and overbilling the commission for his work. He suspended Fethke from the state’s list of eligible attorneys for court appointments.

In January 2017, the Maine Supreme Judicial Court ordered that Fethke be suspended from practicing law for four months for his violation of the Maine Rules of Professional Conduct and the Maine Bar Rules. But while the court found Fethke’s billing practices to be “unorthodox and inappropriate,” they did not determine that he had intentionally overbilled the commission. Fethke did not repay the commission.

“Looking back on it, we probably could have heightened the scrutiny at an earlier time, but we did when we did,” Pelletier said.

But even after Fethke’s discipline case showed the commission’s system Defender Data could be exploited to overbill the state, Pelletier and Maciag did not change their invoice review process.

“Why in 2014 when they knew that Defender Data allowed an attorney to bill over 24 hours in a day, why at that time did they not think outside the box and say we need — as we now have in place — this alert system? How many millions of dollars do you suppose the taxpayers have lost?” Nash said.

The proposed rule to add a timesheet to track attorney hours is awaiting approval by the commission’s new board of commissioners, Pelletier said. Lawmakers restructured the commission in 2018 and replaced the three existing commissioners with a nine-member board.

The new commissioners were confirmed by the state Senate this year and began meeting in August. They will host a public hearing on the findings of the Sixth Amendment Center report at 9 a.m. on Nov. 19 at the Capitol.

Lawmaker Keim said she cannot read the Sixth Amendment Center report without concluding there had to be a breakdown in oversight within the commission.

The data on attorney earnings were at the executive director’s fingertips, but he hadn’t looked at it until the researchers requested it, Keim said.

“I think we need to clean house,” Keim said. “The only way you rebuild the system and have faith in it is if you make sure you get rid of people that didn’t have the integrity in the first place.”